Glontell Karo ^rljoDi Hthranj ^s&aaijT Cornell University Library KD 300.BS8 Suppl. A general index to the English common la 3 1924 017 878 467 'C* --* *■***""' Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017878467 Note. — On page 300 of Eng. Com. Law Rep., vol. 116, (4 B. & S.,) the case of Jonassohn v. Young, is reported as "Judgment for the defendant." This is a palpable error, as will be seen by the Syllabus, by the report of the case itself, and by contemporaneous Reports, (32 L. J., 2 B. 385 ; 11 Weekly Reporter, 962.) But as the mistake occurred in the original edition, the publishers of E. C. L. R. do not feel them- selves justified in making the correction, but call attention to the error here. ~ A . GENERAL INDEX ^1 ENGLISH COMMON LAW REPORTS. VOLUMES LXXXIV. TO CXVIII. INCLUSIVE. BY SAMUEL W. PENNYPACKER, E. GREENOUGH PLATT, and SAMUEL S. HOLLLNGSWORTH, OF THE PHILADELPHIA BAR. VOL. III. PHILADELPHIA: T. & J. W. JOHNSON & CO., LAW BOOKSELLERS, NO. 535 CHESTNUT STREET. 1879. I 'i a o o J\-/b/ 31 Entered, according to Act of Congress, in the year 1879, by T. & J. W. JOHNSON & CO., in the Office of the Librarian of Congress, at Washington. PEE FACE The Editors of this Supplementary Index to the American Edition of the English Common Law Reports, have followed closely the plan and arrangement of the two preceding valuable volumes, commenced by the Hon. George Shaeswood and completed by the Hon. George W. Blddle and Eichaed C. McMueteie, Esq. Since, however, it includes proportionately fewer volumes of the reports they have endeavored to give it more of the character of a Digest, and in more frequent instances to express rather than to suggest the points decided in the cases. Some new titles, rendered necessary by the growth of the law, have been added, among the most important of which are those of the " Common Law Procedure Acts," " Discovery," " Negligence" and the subdivisions under the head of " Railways." No effort has been spared to make the book accurate and complete, and it is hoped that it will prove useful to the profession. S. W. P. Philadelphia, February 1879. TABLE OF TITLES STJFFXiEX^EKTT. ACCORD AND SATISFACTION, 23. ACCOUNT, 23. ACTION, 23. Taking away of right of Action, 23. Time of accruing of cause of Action, 24. Suspension of right of Action, 24. Notice of Action, 24. Splitting of cause of Action, 24. Waiver of right of Action, 24. Subject-matter of, 25. General rules, 25. Injuries to property, 26, Injuries to person, 26. By whom brought, 26. Against whom brought, 27. How barred, 28. Local and transitory, 28. ADMIRALTY, 29. ADVOWSON, 29. AGENT, 29. How constituted, 29. Extent of authority of, 30. How far Principal affected by act of, 30. When Principal may be sued on con- tract made with, 32. Duty and liability of, to Principal, 32. Rights of, as regards Principal, 33. Rights and liabilities of, as regards third persons, 33. How third persons affected by deal- ing with, 34. Effect of subsequent ratification of acts of, 34. Compensation of, 34. ALIEN, 35. AMBASSADOR, 35. ANIMALS, 35. ANNUITY, 35. APOTHECARY, 35. APPRENTICE, 36. ARBITRATION AND AWARD, 36. Subject of reference, 36. Submission, 37. Arbitrator, generally, 37. Umpire, 37. Misconduct of Arbitrator, 37. Excess of authority by Arbitrator, 38. Time within which Award must be made, 38. Award must be on the whole matter submitted, 38. Other matters relating to the validity of Award, 38. Costs, 39. Waiver of objections to Award, 39. Effect of Award, 39. Proceedings upon Award, 39. Setting aside of Award, 40. Revocation of submission, 40. Under Lands Clauses Act, 40. Under Common Law Procedure Acts, 40. Other matters relating to Arbitration and Award, 41. ARMY, 42. ARREST, 42. What is an Arrest and what legal' custody, 42. Who may be Arrested, 42. Irregular Arrest, 42. Privilege from Arrest, 42. (vii) Vlll TABLE OP TITLES. ARREST.— (continued.) When illegal, 42. Malicious, 43. Other matters relating to, 43. ASSAULT AND BATTERY, 43. What amounts to Assault, 43. Action for, 43. Justification, 44. ASSIGNMENT, 44. General matters relating to, 44. How suit brought when chose in action assigned, 44. ASSUMPSIT, 44. Assumpsit generally, 44. Consideration, 45. Goods sold and delivered, 45. Work and labor, 46. Money paid, 46. Money had and received, 46. Account stated, 47. Damages, 47. ATTACHMENT, 47. Generally, 47. Attachment against witnesses, 47. For non-compliance with award, 47. Under Common Law Procedure Acts, 47. ATTORNEY, 48. The Attorney generally, 48. Admission of, 48. Other matters, 49. Duties of, and responsibility for gross negligence, 50. Assumpsit against, for negli- gence, 50. Summary proceedings against, 50. Proceedings by, for costs, 51. Lien of, for costs, 51. How client affected by acts of, 52. Personal liability of, 52. AUCTION, 52. AUDITA QUERELA, 52. AVERAGE, GENERAL, 53. BAIL, 53. Of whom demandable, 53. Amdavit to hold to bail, 53. Amount of, and measure of Bail's liability, 54. When Bail bond forfeited, 54 How Bail discharged, 54. Relief of Bail, 54. Bail in error, 54. BAILMENT, 54. Duties and liabilities of Bailee, 54. Rights of Bailee, and how third per- sons affected by acts of, 55. Actions by Bailor, 55. BANKERS, 55. Payment of checks and bills, 55. Liability where taking lost or stolen note, 56. Liability and duty in other respects, 56. Other matters, 56. BANKRUPTCY, 56. Who can be Bankrupt, 56. Acts of Bankruptcy, 56. Fraudulent preferences, 57. Petitioning creditor, 57. The commission, 57. Proceedings in Bankruptcy general- ly, 57. Debts provable under commission, 58. Transfer of property to assignees, 58. Election of assignees to take leasehold property, 58. Personal property, 58. Reputed ownership, 59. Property in Bankrupt's posses- sion, order or disposition, un- der 6 Geo. 4, c. 16, 59. Property in Bankrupt's posses- sion, order or disposition, un- der 12 & 13 Vict. c. 106, 59. Protected transactions, 59. Actions by assignee, 60. Set-off, 61. Actions against assignee, 61. Actions against Bankrupt, 61. Effect of discharge, 62. Composition deed, 63. Criminal proceedings, 65. Other matters relating to, 65. BASTARDY, 66. BATHING, 66. BILL OF LADING, 73. BILL OF PARTICULARS, 74. BILL OF SALE, 74. BILLS OF EXCHANGE AND PRO- MISSORY NOTES, 67. Form and obligation generally, 67. What is a Bill of Exchange, 67. What is a Promissory Note, 67. Parties to, 67. Other matters relating to, 67. TABLE OF TITLES. BILLS OF EXCHANGE AND PRO- MISSORY NOTES.— (continued.) Alteration of, 68. The stamp, 68. The acceptance, 68. Acceptance supra protest, 68. Transfer, 68. Presentment for payment, 69. Generally, 69. Time within -which Bills, Notes and Checks must be presented, 69. Place at which presentment must be made, 69. Payment, 69. Notice of dishonor, 69. "Who entitled to notice, 69. Due diligence in giving notice, 69. Proof of notice of dishonor, 69. Want of notice, how excused, 69. Bankers, 70. Liability where taking lost or stolen Note, 70. Payment of Checks and Bills, 70. Liability and duty in other re- spects, 70. Other matters, 70. Consideration, 70. Illegal consideration, 70. Want of consideration generally, 70. Accommodation paper, 71. Proof of consideration, 71. Release of parties to Bill or Note, 71. Giving time, 71. How acceptor or maker dis- charged, 71. Proceedings upon, 72. Who may sue, 72. Recovery where Bill or Note lost or stolen, 72. Trover for lost or stolen Note, 72. ' Who may be sued, 72. Pleadings, 72. Evidence, 73. Amount recoverable, 73. When party may resort to origi- nal consideration, 73. Other matters, 73. BOND, 75. Construction of condition, 75. Proceedings on, 75. Official bonds, 75. Other matters, 75. BOOKS, 76. BOROUGH, 76. BOUNDARIES, 77. BROKER, 77. Extent of authority, 77. How principal affected by act of, 77. Compensation, 78. Other matters relating to, 78. BUILDING ACTS, 78. BUILDING ASSOCIATION, 79. BURIALS, 79. CARRIERS, 79. Who are Carriers, 79. General extent of liability, 79. Conveyance of goods, 80. Delivery to Carrier, 81. Delivery by Carrier, 81. Conveyance of persons, 81. Restriction of liability, 82. By contract, 82. By notice, 82. By act of party, 83. By statute, 83. Carriers by water, 84. Proceedings against, 84. Form of action, 84. Evidence, 84. Proceedings by, 84. Lien of, 84. CASE, 85. Generally, 85. When the proper remedy, 85. Parties, 85. Negligence of plaintiff, 86. Injuries to real property, 86. Ancient lights, 86. Ways, 87. Injury to buildings, 87. Right to flowing water, 87. Other matters relating to injury to real property, 88. Injuries to personal property, 88. Collision of carriages, ships, &c, 88. Imitation of marks on goods, 89. Other injuries to personal pro- perty, 89. Injuries of person, 89. Injuries from animals to person, 91. False representations, 91. Pleadings, 92. Damages, 92. CERTIORARI, 92. CHAMPERTY, 93. CHARITY, 93. TABLE OF TITLES. CLUB, 93. COLLISION, 94. COMMON, 94. COMMON LAW PROCEDURE ACTS, 95. Amendment, 95. Appeals, 95. Arbitration, 96. Attachment, 97. Carriers, 97. Costs, 97. Detinue, 97. Discovery, 97. Ejectment, 98. Error, 98. Evidence, 98. Execution, 99. Injunction, 99. Interrogatories, 99. Judgment, 100. Jurisdiction, 100. Jury, special, 100. Mandamus, 100. Pleadings and equitable defences, 101. Practice, 102. Process, 103. Other matters, 103. CONDITION, 103. What words amount to, 103. Construction of, 104. Condition precedent, 104. Waiver, 107. CONFLICT OF LAWS, 107. Admiralty, 107. Contract, 107. Insolvent, 107. Judgment of foreign court, 107. Laws of foreign country, 108. CONFUSION OF GOODS, 108. CONSTABLE, 108. CONTEMPT, 108. What constitutes, 108. Attachment for contempt, 108. Other matters, 109. CONTRACT, 109. Consideration, 110. Sufficiency of, 110. Illegality of, 111. How contract avoided, 111. Illegality of consideration, 111. In restraint of trade, 111. Champerty, 112. CONTRACT.— (continued.) Maintenance, 112. Infancy, 112. Liability of infant for necessa- ries, 112. Defect of title, 112. Warranty, 112. Other matters avoiding Con- tract, 113. Rescission, 116. Construction of Contract, 116. Generally, 116. Parties, 119. What constitutes, 119. Authority, 119. By letter, 120. Collateral, 120. Alteration and substitution, 120. Divisible or not, 120. Meaning of words, 120. Mercantile, 121. Particular phrases, 121. Generality restrained, 122. Time, 122. Subject-matter, 123. Quantity, 123. Hiring and service, 123. Effect of consideration, 123. Price, 123. Stipulation for payment, 124. Stipulation for valuation or esti- mate, 124. Performance, 125. Breach, 125. Condition precedent, 126. Mutuality, 128. Implied, 129. Statute of Frauds, 130. Contracts relating to realty, 130. What is a promise for the debt of another, 130. Contract not to be performed within a year from the mak- ing, 131. Contract for sale within Statute of Frauds, 131. Delivery and acceptance within the exception to the 17th sect., 131. Goods, wares and merchandise within meaning of the 17th sect., 131. Sufficient note in writing within 17th sect., 132. Contract in writing within 4th sect., 132. Remedy for breach of contract, 133. Generally, 133. Pleadings, 133. Damages, 133. CONTRIBUTION, 134. TABLE OF TITLES. XI COPYHOLD, 134. Generally, 134. Surrender and admittance, 135. COPYRIGHT, 136. CORONER, 137. Generally, 137. Inquest, 137. CORPORATION, 137. Generally, 137. What constitutes, 137. Members and officers, 137. By-laws and resolutions, 138. Contracts of, 138. Other matters, 138. Municipal Corporations, 138. Proceedings by, 138. Proceedings against, 139. Quo warranto, 139. Mandamus, 139. Friendly societies, 139. COSTS, 140. Security for costs, 140. Where several issues, 140. Where money paid after action brought, 141. Costs of former action, 141. Costs of former trial, 141. Set-off of costs, 141. Costs in the cause, 141. Rules and orders, 142. Witnesses, 143. Arbitration, 143. Assault, 144. Attorney, 144. Bankruptcy, 144. Case stated, 144. Certiorari, 145. Criminal proceedings, 145. Ejectment, 145. Elections, 145. Error and appeal, 146. Under Interpleader Act, 146. Libel, 147. Prohibition, 147. Quo warranto, 147. Slander, 147. Tender, 147. Certificate of judge as to costs, 147. Taxation, 147. Where inferior courts have jurisdic- tion, 148. Summary proceedings, 149. Execution for, 149. Other matters, 149. COURTS, 151. General matters relating to, 151, Jurisdiction, 152. COURTS.— {continued.) Judgment of foreign court, 154. County courts, 154. Quarter Sessions, 156. Courts-martial, 157. COVENANT, 157. What constitutes, 157. Construction of, 158. Generally, 158. Joint or several, 158. Implied, 158. Dependent and independent Cov- enants, 158. In restraint of trade, 159. Breach of Covenant not to carry on offensive trade, 159. Covenant not to sue, 159. Covenant to repair, 159. Covenant for quiet enjoyment, 159. Covenant to insure, 160. Construction of other particular Covenants, 160. Covenants running with the land, 160. What Covenants pass to assignee of reversion, 160. Liability of assignee of lease, Proceedings upon, 161. Discharge, 161. CRIMINAL CONVERSATION, 161. CRIMINAL LAW, 162. Generally, 162. Indictable offences. 162. Offences under particular statutes, 162. Assault, 166. Conspiracy, 166. Cruelty to animals, 166. Forgery, 166. Game law, offences against, 166. Misdemeanor, 167. Nuisance, 167. Perjury, 168. Piracy, 168. Restitution, 168. Threats, 168. Proceedings generally, 168. Commitment by magistrate, 168. Criminal information, 168. Bail, 169. Indictment, 169. Pleading to indictment, 169. Certiorari, 169. Other matters, 169. Trial and its incidents, 169. Practice, 170. Xll TABLE OF TITLES. CRIMINAL LAW.— (continued.) Summary conviction by magistrate, 170. Costs, 171. Extradition of criminals, 172. Other matters, 172. CUSTOM, 172. What is a good and valid Custom, 172.' Other matters relating to, 173. DAMAGES, 173. Liquidated and unliquidated, 173. In particular actions, 174. Assumpsit, 174. Case, 174. Covenant, 175. False imprisonment, 175. Slander, 175. Trespass, 175. Trover, 176. Other matters relating to, 176. DEBTOR AND CREDITOR, 177. General matters relating to, 177. Composition deeds, 178. When conveyance or assignment by Debtor bad, 180. Payment, 180. DECEIT, 181. DEED, 181. Execution and delivery, 181. Effect of, 181. Alteration in, 182. Construction of, 182. Other matters relating to, 183. DETINUE, 183. DISCLAIMER, 184. DISCOVERY UNDER COMMON LAW PROCEDURE ACTS, 184. Inspection, 184. Interrogatories, 184. DISTRESS, 186. Causes for which and persons by whom Distress may be made, 186. Time at which Distress can be made. 186. Fraudulent removal, 186. The seizure, 186. Remedy for illegal Distress, 186. Other matters relating to Distress, 187. DIVORCE, 187. DOMICIL, 188. DONATIO, MORTIS CAUSA, 188. DOWER, 188. DURESS, 188. EASEMENT, 188. Generally; 188. Ancient lights, 189. Right to flowing water, 190. Right to ferry, 190. Right of way, 190. Generally, 190. Dedication to the public, 191. Obstruction of way, 191. Duty to repair, 192. Extinction of right of way, 193. ECCLESIASTICAL LAW, 193. Generally, 193. Rights of crown, 194. Dilapidations, 194. Courts, 195. Jurisdiction, 195. Writs of sequestration, 195. EJECTMENT, 195. Title requisite to maintain, and by whom maintainable, 195. For what property Ejectment does not lie, 195. Notice to quit, 195. Forfeiture of lease, 196. Waiver of forfeiture, 196. The declaration, 196. The proceedings, 196. Other matters relating to Ejectment, 197. ELECTION, 197. ELECTIONS, 197. General matters, 197. Qualification of voters, 198. Appeal from decision of revising bar- rister, 201. ELEGIT, 204. ERRORS AND APPEALS, 204. On what judgment or proceeding a writ of Error lies, 204. Practice and proceedings on a writ of Error, 204. The assignment of Errors, 205. The judgment in Error, 205. Writ of Error coram nobis, 205. Appeal, 205. TABLE OF TITLES. xni ESTATE, 209. General matters, 209. Vesting of Estates, 209. Estate in fee simple, 209. Estate tail, 209. Estate tail under will, 210. Estate for life, 210. Other Estates, 210, ESTOPPEL, 211. EVIDENCE, 213. Generally, 213. Judicial proceedings, 214. Law of foreign countries, 215. Public writings, 215. Matters of title, 215. Private writings, 215. Ancient documents, 215. Letters, 215. Of the execution and proof of instru- ments, 215. Of the inspection of papers, 215. Stamp, 216. Secondary Evidence, 216. Parol testimony affecting written in- struments, 217. To explain, 217. To vary, 218. Presumption, 218. Evidence of usage and custom, 219. Hearsay, 220. Declarations generally, 220. Acts, 220. Admissions, 220. Proof by witnesses, 221. Privileged witnesses, 221. Competency of witnesses, 221. Examination of witnesses, 222. General remarks, 222. Examination upon interroga- tions, 222. Depositions, 222. Viva voce under Common Law Procedure Acts, 223. EXECUTION, 23. When Execution, may issue, 223. Proceedings on a capias ad satisfa- ciendum, 223. Who is privileged from, 223. Other matters relating to capiaB ad satisfaciendum, 224. Proceedings under a fieri facias, 225. What may be taken in Execu- tion, 225. Of the levy and proceedings thereon, 225. Interpleader, 225. Of the return, 225. Sequestration, 225. Other matters relating to, 225. EXECUTORS AND ADMINISTRA- TORS, 226. Administration, 226. Of the interest and power of Execu- tors and Administrators, 226. Duties and liabilities of Executors, &c, 226. Proceedings by, 226. Proceedings against, 227. EXECUTORY DEVISE, 227. FACTORS, 227. FALSE IMPRISONMENT, 228. What constitutes an Imprisonment, 228. Legal and illegal Imprisonment, 228. Of the proceedings, 228. FEES, 228. FERRY, 229. FINE, 229. FISHERY, 229. FIXTURES, 229. FOREIGN ATTACHMENT, 230. FOREST, 230. FORFEITURE, 230. FORMER RECOVERY, 231. FRANCHISE, 231. FRAUD, 231. Generally, 231. Effect of fraud, 232. Fraud by retention or voluntary con- veyance, 232. FRAUDS, STATUTE OF, 233 Wills, 233. Contracts relating to realty, 233. What is a promise for the debt of another, 233. Contract not to be performed within a year from the making, 234. Contract for sale within the Statute of Frauds, 234. Delivery and acceptance within the exception to the 17th sect., 234. Goods, wares and merchandise within meaning of the 17th sect., 235. Sufficient note in writing within 17th sect., 235. XIV TABLE OP TITLES. FRAUDS, STATUTE OF.— {continu- ed.) Contract in writing within the 4th sect., 235. FREEHOLDS, 236. GAME, 236. GAMING, 237. GAOL, 237. GIFT, 237. GOODS SOLD AND DELIVERED, 238. GRANT, 238. GUARANTY, 239. Generally, 239. Construction of, 239. Discharge of, 239. GUARDIAN, 240. HABEAS CORPUS, 240. When granted, 240. Custody of infant children, 240. HAWKER, 241. HEALTH, 241. HEIR, 242. HERIOT, 242. HOLIDAY, 242. HUSBAND AND WIFE, 243. Sufficiency of marriage, 243. Action for breach of promise of mar- riage, 243. Husband's right to Wife's property, 243. Wife's interest and power over her own property, 243. Conveyance under statutes, 243. Husband's liability for Wife, 245. Liability for necessaries, 245. Liability for debts of Wife con- tracted before marriage, 245. Wife's agency, 245. Liability for torts of Wife, 246. Actions against, 246. When competent to be witnesses, 246. Separation agreements, 246. Action for criminal conversation, 246. Divorce, 246. Dower, 246. INDEMNITY, 247. INFANT, 247. Contracts of Infants, 247. Necessaries, 247. Liability for torts, 247. Criminal liability, 247. Proceedings by and against, 247. Custody of Infants, 247. INNKEEPER, 248. Duties and liabilities, 248. Lien of Innkeeper, 248. INSOLVENT, 248. General matters relating to, 248. Of the petition and schedule, 249. Void assignments by Insolvent, 249. The assignees, 249. Effect of assignment and discharge, 249. From what liabilities discharged, 249. Discharge under foreign Insol- vent laws, 250. INSURANCE, 250. Generally, 250. (Marine), 250. The contract of Insurance, 250. General matters relating to, 250. Insurable interest, 251. Of the policy generally, 251. Insurance on freight, 251. Attachment of the risk, 251. The voyage insured, 251. Illegality of voyage, 252. Concealment and misrepresenta- tion, 252. Warranty of seaworthiness, 252. Other warranties, 252. Other matters avoiding the In- surance, 253. Of the losses covered by the policy, Perils of the seas, 253. Other losses, 253. Settlement of the loss, 254. Total loss, 254. Abandonment, 254. Average losses, 255. Adjustment of loss, 255. Return of premium, 255. Other matters relating to settle- ment of loss, 256. Of the proceedings, 256. Generally, 256. Evidence, 256. Other matters relating to pro- ceedings, 256. (Fire), 256. The contract of Insurance, 256. TABLE OF TITLES. xv INSURANCE.— (continued.) Losses covered by the policy, 256. (Life), 257. The contract of Insurance, 257. Generally, 257. Insurable interest, 258. Concealment and misrepresenta- tion, 258. Other matters, 258. INTEREST, 259. INTERPLEADER, 259. INTERNATIONAL LAW, 259. JOINT STOCK COMPANY, 260. Proceedings against shareholder, 260. Proceedings by and against company, 261. Liability of shareholder, 261. Other matters, 262. JOINT TENANCY, 264. JUDGES, 264. JUDGMENT, 265. Form and entry of Judgment, 265. Setting aside and amending of Judg- ment, 265. Computation of amount due under Judgment, 265. Satisfaction of Judgment, 265. "When Judgment void, 266. Effect of Judgment, 266. Judgment of foreign court, 266. Set-off of Judgments, 266. Other matters, 266. JURY, 267. General matters relating to Jury, 267. Rights of Jury, 267. LANDLORD AND TENANT, 268. What amounts to a lease, 268. Construction of, 269. Covenants in a lease, 269. Covenant to repair, 270. What covenants pass to assignee of reversion, 271. Condition, 271. Duration of interest, 271. Lease for a year, 271. Tenant from year to year, 271. Tenant at will, 271. Liability of assignee in bankruptcy, 272. Determination of term, 272. LANDLORD AND TENANT.— (con- tinued.) Surrender of term, 272. When notice to quit requisite, 272. Other matters, 272. Forfeiture of lease, 273. Waiver of forfeiture, 273. How far Tenant may controvert Landlord's title, 274. Other general matters touching rela- tion of Landlord and Tenant, 274. Attornment of Tenant, 274. Disclaimer of Tenancy, 274. Fixtures, 275. Repairs, 275. Rent, 275. When recoverable generally, 275. Eviction, 275. Right of Tenant to deduct taxes, &c, 276. Apportionment of rent, 276. Double rent, 276. Means for recovery of rent, 276. Distress generally, 276. Time at which distress should be made, 276. Fraudulent removal by Tenant to avoid distress, 276. The seizufre, 276. What can be distrained, 277. The disposal of the distress, 277. Wrongful distress, 277. Irregular distress, 277. Use and occupation, 277. Other matters concerning re- covery of rent, 277. Rent charge, 278. Other matters, 278. LANDS CLAUSES CONSOLIDA HON ACT, 278. LAW, 279. LEGACY, 279. LIBEL, 279. What constitutes, 279. Privileged publication, 279. Literary criticism, 280. The proceedings, 280. Liability for, 280. The declaration, 280. Plea of justification, 280. Province of jury, 280. Evidence where justification pleaded, 281. Malice, 281. Costs, 281. XVI TABLE OF TITLES. LICENSE, 281. LICENSES TO TRADE, 282. LIEN, 282 Generally, 282. Lien in particular cases, 282. Carrier's Lien, 282. Innkeeper's Lien, 283. , Vendor's Lien for unpaid pur- chase-money, 283. Wharfinger's Lien, 283. Lien of shipowner for hire of ship, 283. Lien in other trades, 283. LIMITATIONS, 284. Limitation of actions generally, 286. When the statute begins to run, 284. Limitation of actions for real estate, 284. Limitation of personal actions, 284. What will take a case out of the statute, 284. Sufficient commencement of suit, 284. What is a sufficient acknowledg- ment, 285. Acknowledgment since statute 9 Geo. 4, c. 14, 285. Acknowledgment by one joint debtor, 285. Part payment, 285. Other cases in which the statute applies, 285. LUNATIC, 285. MAGISTRATE, 286. General matters relating to, 286. Proceedings before Magistrates, 287. Jurisdiction, 287. Summary conviction by, 289. Proceedings against Magistrate, 291. Mandamus to Magistrate, 291. MALICIOUS ARREST, 292. The Arrest, 292. Other matters, 292. MALICIOUS PROSECUTION, 292. MANDAMUS, 293. When granted generally, 293. Mandamus to corporations, com- panies and public officers, 293. Mandamus to inferior courts, 294. Mandamus to magistrates, 294. Mandamus in other cases, 295. Return to Mandamus, 295. MANDAMUS.— (continued.) Peremptory Mandamus, 295. Costs, 295. Other matters relating to, 295. MANOR, 295. MARKET, 296. MARRIAGE, 296. Generally, 296. Sufficiency of Marriage, 296. Action for breach of promise of Mar- riage, 296. Separation agreements, 297. Divorce, 297. Dower, 297. MASTER AND SERVANT, 297. Liability of Master for contracts of Servant, 297. Liability of Master for torts of Ser- vant, 298. Generally, 298. Servant must be acting within general scope of his duties, 298. How far relation of Master and Servant must exist, 298. Of the contract of hiring, 298. Of the right of Servant to wages, 299. Ground for dismissal of Servant, 299. Who is a Servant, 299. Liability of Master for injuries to Servant, 299. Of the action of seduction, 300. The relation of Master and Appren- tice, 300. Other matters, 300. MAXIMS, 300. MERGER, 301. MINES, 301. MISTAKE, 303. MONEY HAD AND RECEIVED, 303. MONEY PAID, 304. MORTGAGE, 304. Of personal property, 304. Mortgage of ship, 305. Of real estate, 305. Rights of mortgagor 305. Fixtures as between mortgagor and mortgagee, 305. Other matters, 305. TABLE OF TITLES xvii NAMES, 306. NEGLIGENCE, 306. Generally, 306. Liability of master for Negligence of servant, 308. Liability of master for injuries to servant, 309. Damages, 30B. Contributory Negligence, 310. NEW TRIAL, 310. General grounds on which New Trial granted, 310. Where there has been misdirection or where verdict is against law, 311. Where verdict is contrary to evidence, 312. Where new facts have been dis- covered, 312. Misconduct of party to the cause, 312. Excessiveness or inadequacy of dam- ages, 312. New Trial in criminal cases, 313. Of the motion for a New Trial, 313. Costs of former trial, 313. Time for preparation, 313. NOTICE, 314. NUISANCE, 315. Civil proceedings, 816. Right of a private person to abate, 315. Criminal proceedings, 316. What constitutes a Nuisance, 316. OATHS, 317. OFFICE AND OFFICERS, 317. Generally, 317. Who is a public Officer, 317. Proof of being an officer, 318. Liability of public Officer, 318. Fees of public Officer, 318. OUTLAWRY, 219. PARISH, 319. PARLIAMENT, 321. PARTNERSHIP, 321. What constitutes a Partnership, 321. When a Partnership as to third persons but not inter se, 322. Actions by Partners, 322. Actions against Partners, 322. Power of one Partner to bind his co-partners, 322. Vol. III.— 2 PARTNERSHIP.— (continued.) Dormant Partner, 322. Other matters relating to actions between Partners, 323. Bankruptcy, 323. PARTY-WALL, 323. PATENTS, 323. Generally, 323. Property in invention, 324. What constitutes novelty and discov- ery, 324. When Patent is too broad, 325. Defective description in patent, 325. Object and requisites of specifica- tion, 325. Disclaimer, 325. What constitutes an infringement, 326. Proceedings in action for infringe- ment, 326. PAWNBROKER, 327. PAYMENT, 328 PENALTY, 329. PENSION, 330. PETITION OF RIGHT, 330. PHYSICIANS, 331. PILOT, 331. PLEADING, 331. _ Parties to the action, 331. Material allegations, 332. Immaterial issue, 332. Traverse must not be too broad, 332. Traverse must not be too nar- row, 332. Duplicity in Pleading, 332. Ambiguity in Pleading, 332. Departure, 332. Special pleas amounting to general issue, 333. Surplusage, 333. Argumentativeness, 333. Other miscellaneous rules, 333. Of the declaration, 333. Joinder of counts, 333. Statement of cause of action, 333. Under Common Law Precedure Acts, 334. New assignment, 334. Of profert and oyer. Of pleas, 335. Generally, 335. XV111 TABLE OF TITLES. PLEADING.— i (continued.) Pleas to jurisdiction, 335. Plea to further maintenance of acti6n, 335. Under Common Law Procedure Acts, 335. Plea of payment, 336. Of certain special pleas, 336. Of certain miscellaneous rules relating to pleas, 338. Of issuable pleas, 338. Plea of not guilty. Several pleas, 339. Plea of performance, 339, The replication, 339. The rejoinder, 340. Demurrer, 340. Issue, 340. Amendment, 340. Amendment of mesne process, 340. Amendment of declaration and other Pleadings, 341. Amendment of judgment, 341. Amendment after non-suit or verdict, 341. Amendment after error, 341. Amendment in other cases, 342. PLEDGE. POOR, 343. Acquiring and losing a settlement, 343. Birth settlement, 343. Settlement by hiring, 343. Acquiring settlement in other ways, 343. Poor law commissioners, 344. Guardians and overseers of the Poor, 344. Orders of maintenance and removal, 345. Other matters, 348. POST-HORSE DUTY, 348. POWERS, 349. PRACTICE, 349. Authority of courts to establish rules, 349. Of motions, rules and orders, 350. Service of rule, 351. Rule to plead, 351. Motions and rules in other cases, 351. Of notices, 352. Notice of trial, 352. Service of notice, 353. Other matters relating to notices, 353. PRACTICE.— (continued.) Affidavits, 354. Affidavit of merits, 354. Title of affidavits, 354. Jurat of affidavits, 354. Other matters relating to affida- vits, 354. Agreements, 355. Process, 355. General matters, 355. Service of process, 356. Proceeding to outlawry, 356. Irregularities, when to be taken ad- vantage of, 356. The declaration and other pleadings, 356. Judgment by default, 357. Judgment for want of a plea, 357. Under Common Law Procedure Acts, 357. Trial by proviso, 357. Stay of proceedings, 357. Consolidation of actions, 358. Interpleader, 358. Payment into court, 358. Effect of payment into court, 358. When money paid can be taken out, 358. The trial and proceedings in relation thereto, 358. Change of venue, 358. Special j'ury, 359. Postponement of cause, 359. Order of addressing j urv, 359. Non-suit, 359. Inferior courts, 360. Case stated, 360. Special case, 360. Arrest of judgment, 360. Certiorari, 360. Other matters, 361. PREROGATIVE, 363. PRESCRIPTION, 363. PRISONS, 364. PRIZE, 364. PROHIBITION, 364. PUBLIC COMPANY, 365. QUAKERS, 367. QUARE IMPEDIT, 367. QUO WARRANTO, 368. TABLE OF TITLES. xix RAILWAY COMPANIES, 368. Calls, 368. Construction of charters, 368. Compensation, 368. Liability for negligence, 369. " Unreasonable preference" and rea- sonable condition within 17 & 18 Vict. c. 31, 370. The Lands Clauses Consolidation Act 1845, 8 & 9 Vict. c. 18, 372. The Rail-way Clauses Consolidation Act 1845, 8 & 9 Vict. c. 20, 373. Other matters, 374. RATES AND LEVIES, 376. Liability to, 376. Being rated to entitle to vote, 381. Other matters relating to Rates, 381. RELEASE, 385. REMAINDER, 385. REPLEVIN, 386. SCIRE FACIAS, 386. SEDUCTION, 387. SET-OFF, 387. Between what parties Set-off allowed, 387. What demand may be set off, 387. Mutual debts where one party has become bankrupt, 387. Set-off of judgment, 388. Other demands that may be set off, 388. The pleadings, 388. Proceedings, 389. SEWERS, 389. SHERIFF, 390. Writ of trial to Sheriff, 390. Rights of Sheriff, 390. Right to fees and poundage, 390. Interpleader, 390. Liability of Sheriff, 390. Liability for acts of officer, 390. Action against Sheriff for not arresting, 391. Liability for escape, 391. Other matters relating to arrest, 391. Proceedings by Sheriff under fieri facias, 391. Return to fi. fia. 391. Action against Sheriff for false return, 391. SHERIFF.— [continued). Proceedings by and against Sheriff, 391. Other matters relating to Sheriff, 391. SHIPPING, 392. Registry acts, 392. Their effect on ownership and their object, 392. On mortgage, 392. Owner generally, 392. His liability, 392. Of part owners, 393. The mortgagee, 394. The charterer, 394. The charter-party, 394. Covenants therein, 394. Construction of, 394. Freight, 396. When payable, 396. Liability for, 396. Who may sue, 397. Other matters as to payment, o97* Lien of owner, 397. Lien of owner after charter- party, 397. Other matters as to lien, 397. Particular statutes, 397. Of the master, 398. Liability, 398. Consignor and consignee, 398. Actions by, 398. Actions against, 398. Transfer of the cargo, 399. By the master, 369. Under bill of lading and its effect, 399. General average, 399. Demurrage, 400. Of the voyage, 400. Abandonment of, 400. Illegal voyage, 400. Navigation of vessel, 400. Court of Admiralty, 401. Seamen, 401. Other matters, 401. SLANDER, 402. Privileged communications, 402. Parties to the action, 402. Pleadings, 402. Proceedings, 402. Evidence, 402. Malice, 403. Special damage, 403. Damages, 403. Costs, 403. SLAVES, 403. XX TABLE OF TITLES. STAMPS, 403. Agreement requiring a Stamp, 403. When unstamped instrument may be read, 404. Parol evidence of unstamped agree- ment, 404. Other matters, 404. STATUTE, 405. Privilege conferred by Statute where Statute expires, 405. Construction of Statute generally 405. Retrospective, 406. In pari materia, 406. Exceptions and provisoes, 407. Affecting jurisdiction, 407. Affecting rights and contracts, 409. Affecting remedies, 413. Grants of franchises, 415. Authorizing tolls or duties, 416. Definitions of words, 418. Private, 421. When Statute repeals the law, or is only cumulative, 422. Computation of time mentioned in Statute, 423. Penal, 424. Construction of particular Statutes, 429. Proceedings under Statute, 439. STOCKS, 439. STOPPAGE IN TRANSITU, 439. SUBROGATION, 440. SUNDAY, 440. SURETY, 440. Generally, 440. Extent of liability, 441. Co-surety, 441. Discharge of, 441. By time given principal, 441. By composition with principal, Other matters, 442. TAX, 442. TELEGRAPH, 443. TENANCY IN COMMON, 443. TENDER, 443. TIME, 444. TITHE, 445. Generally, 445. Rent charge under commutation acts, 445. TITLE, 446. TOLL, 446. TORT, 448. TRADEMARK, 448. TRESPASS, 448. For what Trespass lies, 448. For what it will not lie, 448. By whom it is and is not maintaina- ble, 449. Against whom it is and is not main- tainable, 449. Against, 449. Not, 449. Justification, 449. Pleadings and evidence, 449. Damages, 450. Costs, 450. TROVER, 450. When and for what maintainable, 450. When and for what not maintaina- ble, 450. By whom maintainable, 451. Against whom maintainable, 451. Against whom not maintainable, 451. Conversion, 451. Pleading, 452. Damages, 452. Effect of judgment on title to the pro- perty, 452. TRUST AND TRUSTEES, 452. Estate of, 452. Rights and obligations generally, 453. TURNPIKE, 453. UNIVERSITY, 454. USAGE, 455. Requisites, 455. Establishment of, 455. Admissibility, 455. Effect of generally, 455. USE AND OCCUPATION, 456. USES AND TRUSTS, 456. USURY, 456. VACCINATION, 456. TABLE OF TITLES. xxi VENDOR AND VENDEE, 457. Passing of the title, 457. When title passes, 457. When it does not pass, 458. Delivery, 458. Lien of vendor, 459. Of chattels, 459. Stoppage in transitu, 459. Market overt, 459. Fraud by retention of possession or voluntary conveyance, 459. Illegality of the contract, 460. Title to be shown by Vendor, 460. Construction of agreement and arti- cles, 460. Generally, 460. What constitutes, 461. Authority, 461. Collateral, 461. Meaning of words, 461. Mercantile, 461. Particular phrases, 462. Generality restrained, 462. Subject-matter, 462. Quantity, 462. Stipulation for valuation, 462. Performance, 462. Breach, 462. Condition precedent, 463. Implied contract, 463. Delivery of the abstract, 463. Rescission of the contract and its effects, 463. Other matters avoiding contract, 464. Warranty, 464. Sale by sample, 465. Action against Vendor and the dam- ages, 465. Action by Vendor, 465. Statute of Frauds, 466. Contracts relating to realty, 466. Contracts for sale within Stat- ute of Frauds, 466. Delivery and acceptance within the exception to the 17th sect. 466. Sufficient note in writing within 17th sect., 467. Contract in writing within the 4th sect., 468. Goods, wares and merchandise within meaning of the 17th sect., 468. VENUE, 468. Change of, 468. Other matters, 469. VERDICT, 469. VESTRY, 469. WAGER, 471. WAREHOUSEMAN, 471. WARRANT OF ATTORNEY, 471. WARRANTY, 472. WASTE, 473. WATERS AND WATERCOURSES, 473. Of navigable streams, 473. Private rivers, 473. Right to flowing water, 474. Bridges, 475. WAY, 475. Generally, 475. Dedication to the public 476. Obstruction of Way, 476. Duty to repair, 477. Extinction of right of Way, 477. Of particular statutes, 478. Surveyors of highway, 479. WEIGHTS AND MEASURES, 479. WHARFINGER, 479. WILLS, 480. Requisites to Will, 480. Revocation, 480. Republication, 480. What passes under, 480. The devisee, 481. Estates created, 481. When trustees take the fee, 481. By what words the fee passes, 48 1 . By what words an estate tail passes, 482. Life estate, 482. Estates by implication, 482. Other estates, 482. Construction, 482. Vested interest and vesting of, 484. Evidence, 484. Executory devise, 484. WORK AND LABOR, 484. The contract, 484. By and against whom maintainable, 485. WRECK, 485. WRITS, 485. TABLE ENGLISH COMMON LAW REPORTS, INDEXED IN THIS SUPPLEMENTAL VOLUME, SHOWING THE VOLUME OF THE SERIES OF ENGLISH COMMON LAW REPORTS IN WHICH THEY WILL BE FOUND. VOLUME OF ORIGINAL REPORTS. TITLE OP REPORTS. ABBREVIATIONS. DATE OP REPORTS. VOLUME OF ENGLISH COMMON LAW REPORTS. 3 4 5 6 17 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IS 19* 6 6 7 8 1 2 3 Best and Smith- Common Bench, J. Scott, :: (New Series) :: C. B ■:' '"(N.'S Ellis and Blackburn.. E. & B.. Ellis, Blackburn and Ellis- Ellis and Ellis E., B. & E... E. & E 1861 1862 1862-3 1863-4 1864 1865 1856 1856 1856-7 1857 1857-8 1858 1859 1859 1860 1860 1860-1 1861 1861-2 1862 1862-3 1863 1863 1864 1864 1864-5 1865 1856 1856 1857 1857-8 1858-9 1858-9 1859-60 1860 101 110 113 116 117 118 84 91 93 95 97 100 103 104 106 108 109 111 112 114 115 85 88 90 92 96 102 105 107 * Volume 20, of the English Series of " Common Bench, N. S-," is but an Index to the previous 19 vol- umes, and Report of two cases only — both from the House of Lords. These cases have been added to .our edition of volume 19, in addenda of additional cases. (sxii.) INDEX ENGLISH COMMON LAW REPORTS, [STJFFIjEI^BlSrT. ] ACCOED AND SATISFACTION. Plea that plaintiff was indebted to S., and defendant, at plaintiff's request, agreed with S. to pay him, and S. accepted defendant as his debtor instead of plaintiff, and defendant still liable to S., is bad. Cochran v. Green, xcix. 448 : 9 C. B. N. S. 448. Quaere, whether plea alleging payment of part and balance to third person to await adjustment of differences, by agreement, is good as plea of accord and satis- faction. Page v. Meek, cxiii. 259 ; 3 B. & S. 259. ACCOUNT. Poor law accounts, when audited and settled, cannot be opened or attacked upon a subsequent audit. Begina v. Chiddingstone, ex. 294 ; 2 B. & S. 294. ACTION. I. Taking away of right of action. II. Time of accruing of cause of action. III. Suspension of right of action. IV. Notice of action. V. Splitting of cause of action. VI. Waiver of right of action. VII. Subject-matter of. (a) General rules. (b) Injuries to property. (c) Injuries to person. VIII. By whom brought. IX. Against whom brought. X. How barred. XI. Local and transitory. I. Taking away of eight of Action. "Where one of the parties to a reference of mutual claims to arbitration became bankrupt and the assignees brought a fresh suit, the court refused to stay the proceedings. Pennell v. Walker, lxxxvi. 651. 18 C. B. 651. (23) 24 ACTION, I.— VI. Remedy provided for recovery of expenses in sect. 225 of 18 & 19 Vict. c. 120, is the only one, and an action will not lie. Vestry of St. Pancras v. Batter- bury, lxxxix. 477 ; 2 C. B. N. S. 477. Under 11 & 12 Vict. c. 112, action does not lie against contractors under the Metropolitan Commissioners of Sewers. Ward v. Lee, xc. 426 ; 7 E. & B. 426. II. Time of accruing of cause of Action. For injuries caused to the surface by careless working of a mine under an adjacent property the right of action arises at the time of the injury not of the working. Bonomi v. Backhouse, xcvi. 622 ; E., B. & E. 622, affirmed in House of Lords, ci. 970 ; 1 B. & S. 970. On a contract to be performed infuturo the right accrues as soon as either party notifies the other that he will not be bound by the contract. Danube Rail- way Co. v. Xenos, ciii. 151 ; 11 C. B. N. S. 153. Assignee of patent from executors, if probate subsequently registered, has right ot action for infringement. Elwood v. Christy, cxii. 754 ; 17 C. B. N. S. 754. Qucere, whether action would lie before registration. Ibid. III. Suspension of eight of Action. There being evidence that drafts upon the defendant accepted by him had been returned to him plaintiff was entitled to sue for the original consideration. Wid- ders v. Gorton, lxxxvii. 576 ; 1 C. B..N. S. 576. Procuring the acceptance of defendant's draft for part of the claim and retain- ing it suspends to that extent the right of action. Stuart ». Cawse, xciv. 737 ; 5 C.B. N. S.737. IV. Notice of Action. What notice under 5 & 6 Vict. c. 97, s. 4, in order to bring action, will be good. Freeman v. Reed, cxvi. 174 ; 4 B. & S. 174. Notice under 1 & 2 Vict. c. 74, which does not state place where application for warrant to be made nor that person giving notice is agent of owner is informal. Delaney v. Fox, lxxxvii. 166 ; 1 C. B. N. S. 166._ Under sect. 223 of 5 & 6 W. 4, c. 107, notice is required only in the case of some act or omission warranted or supposed to be warranted by the statute. Garton v. G. W. Railway Co., xcvi. 837 ; E., B. & E. 837. To entitle proprietor of cab to notice of action for defacing license of driver under 6 & 7 Vict. c. 86, the endorsement on license must be by magistrate not by him. Heath v. Brewer, cix. 803 ; 15 C. B. N. S. 803. V. Splitting of cause of Action. Actions against several defendants, members of a mutual insurance company, by the same plaintiff on the same policy consolidated on terms. Lewis v. Barkes, xciii. 330 ; 4 C. B. N. S. 330. Where the plaintiff, an attorney, sent at different times two separate bills and before the expiration of a month from the delivery of the last, proposed that de- fendant should waive the objection of time and accept process in one action, which defendant refused to do, it was held that the two actions commenced in conse- quence should be consolidated and the whole costs be included in one allocatur. Beardsall v. Cheatham, xcvi. 243 ; E., B. &. E. 243. VI. "Waiver of eight of Action. A witness, subpoenaed by defendant who obtained a verdict, but afterward detained by plaintiff, is not prevented from recovering expenses from plaintiff, for time of detention, because he has, after receiving the amount from defendant and finding that it was not allowed on taxation, returned it to him by agreement. Hale v. Bates, xcvL 575 ; E., B. & E. 575. ACTION, VII. 25 VII. Subject-matter op. (o) General rules. Action lies for breach of agreement to refer matters of dispute that may arise under contract to arbitrator. Livingston v. Ralli, lxxxv. 132 ; 5 E. & B. 132. Wrongdoer in possession of goods belonging to stranger may recover in trover against wrongdoer who has taken them from him. Jefferies v. Great Western Railway Co., lxxxv. 802; 5 E. & B. 802. Action will lie by outgoing tenant for straw for which he was to be paid, though plan of valuation agreed upon had become impossible. Clarke v. West- rope, lxxxvi. 765 ; 18 C. B. 765. Declaration setting forth a contract for conveyance, and that goods were to be taken on board at defendants' expense, and averring that they were in the care of the defendants for purpose of being taken on board, and defendants took them on board at their expense, but by their wrongful act and neglect they were dam- aged, discloses cause of action. Cooke v. Wilson, lxxxvii. 153 ; 1 C. B. N. S. 153. On judgment of Irish court against joint stock company where service made by leave, by delivering copy to Dublin agent and mailing copy to manager in London. Sheehy v. Life Assurance Co., lxxxix. 211 ; 2 C. B. N. S. 211. But not for the costs in an interlocutory proceeding. Ibid. Affirmed in Exchequer Chamber, xci. 597 ; 3 C. B. N. S. 597. Will not lie for filing judges' order for the payment of a debt and costs after the payment has been made. Dimmack v. Bowley, lxxxix. 542; 2 C. B. N. S. 542. ■ Does not lie against a warden, who without malice prevents a party entitled from voting at election of vestrymen or from being candidate. Tozer v. Child, xc. 377; 7E. &B. 377. Holder of an insurance policy not yet due has no action against the company because of an amalgamation with another company and transfer of property. King v. The Accumulative Assurance Co., xci. 151 ; 3 C. B. N. S. 151. Does not lie for enticing away an apprentice if the contract of apprenticeship be void. Cox v. Muncey, xcv. 375 j 6 C. B. N. S. 375. The purchaser of shares, who, with full knowledge that the completion of the transfer has been prevented by the stoppage of the bank, pays his broker, who, under decision of the board, has paid seller's broker, cannot maintain an action against the seller for the money. Remfry v. Butler, xcvi. 887 ; E., B. & E. 887. Money paid under a mistake of fact may be recovered back though plaintiff had means of knowledge at the time. Townsend v. Crowdy, xcviii. 477 ; 8 C. B. N. S. 477. Plaintiff who has sustained no loss by a false return of a sheriff has no cause of action. Levy v. Hale, xcviii. 881 ; 8 C. B. N. S. 881. A threat to distrain and sell fixtures is not actionable. Beck v. Denbigh, xcviii. 888 ; 8 C. B. N. S. 888. Does not lie for goods levied upon under a rate on the ground that the owners were exempt because their occupation not beneficial. Mersey Docks Trustees v. Cameron, xcix. 812 ; 9 C. B. N. S. 812. Lies for a wrongful act depriving a man of tenants. Bell v. Midland Railway Co., c. 287 ; 10 C. B. N. S. 287. Not maintainable for deficiency where plaintiffs gave the bankrupt their ac- ceptance on the faith of a consignment abroad, the advance to be repaid out of proceeds of goods consigned and deficiency to be made up, and they paid the acceptance at maturity without Knowledge that assignees had not negotiated it. DePass ». Bell, c. 517 ; 10 C. B. N. S. 517. An action at law does not lie for expenses under sect. 34 of 17 & 18 Vict. c. 183. Blackburn v. Parkinson, cii. 71 ; 1 E. & E. 71. An action does not lie under a contract to share profit from sale of commodity for a refusal to share profits from sale of another article into the manufacture of which the first commodity entered. Fullwood v. Akerman, ciii. 738; 11 C. B. N. S. 738. No action will lie for interfering with water percolating under ground into a well or for abstracting water already collected in such well by percolation. New River Co. v. Johnson, cv. 436 ; 2 E. & E. 436. 26 ACTION, VII, (a), (6), (c).— VIII. Does not lie upon the implied promise contained in the defeasance of a warrant of attorney. Sherborn v. Tollemache, cvi. 742 ; 13 C. B. N. S. 742. Where endorser is sued for not delivering up sets of bill of exchange, when there is no obligation to deliver up, there is no cause of action. Pinard v. Klock- mann, cxiii. 388 ; 3 B. & S. 388. 7 & 8 Vict, does not take away right of action on judgment for less than 20 J. Dickinson v. Angell, cxiii. 840 ; 3 B. & S. 840. Does not lie against a sheriff for a false return which is immaterial. Lloyd v. Harrison, cxviii. 36 ; 6 B. & S. 36. (&) Injuries to property. If a public right, like that of navigation, be taken away by act of Parliament, no action lies for interference with the accessory private right. Kearns v. The Cordwainers Co., xcv. 388 ; 6 C. B. N. S. 388. _ Action lies for detaininggoods taken under distress for rent after tender before impounding. Loring v. Warburton, xcvi. 507 ; E., B. & E. 507. Since 17 & 18 Vict. c. 104, s. 50, an action lies by owner and master of a vessel for damages caused by detention of certificate of registry though he himself pledged it. Wiley v. Crawford, ci. 253 ; 1 B. & S. 253. Owner of dog with tendency to destroy game, liable to owner of land when game is destroyed. Read v. Edwards, cxii. 245 ; 17 C. B. N. S. 245. User of premises constituting nuisance by reason of injury to adjoining land. Bamford v. Turnley, cxiii. 66 ; 3 B. & S. 66, reversing s. c. in Q. B., H>id 62, and overruling Hole v. Barlow, xciii. 334; 4 C. B. N. S. 334. (c) Injuries to person. Lies at common law for injury where owner of factory did not fence in shaft as required by 7 & 8 Vict. c. 15, notwithstanding penalties provided for in that act. Caswell v. Worth, lxxxv. 849 ; 5 E. &.B. 849. Proof that a wire on defendant's ground caused an explosion, knocking plain- tiff who was there down, and slightly injuring his face and eyes, not sufficient to enable him to recover at common law or under 7 & 8 Geo. 4, c. 18. Wootton v. Dawkins, lxxxix. 412; 2 C. B. N. S. 412. A declaration setting forth that the defendant and another obtained from plaintiff possession of premises by fraudulent representations and then set up private stills, and that plaintiff being on the premises when visited by the excise- man was suspected, arrested and convicted, discloses no cause of action. Barber v. Lesiter, xcvii. 175 ; 7 C. B. N. S. 175. Lies for malicious arrest on a ca. sa. for an amount more than was due, though plaintiff did not obtain his discharge by an order of court. Gilding v. Eyre, c. 592 ; 10 C. B. N. _S. 592. When action will not lie against owner of premises adjoining highway for accidental death under 9 & 10 Vict. c. 93. Bobbins v. Jones, cix. 221 ; 15 C. B. N. S. 221. VIII. By whom bkought. Several cannot sue at law jointly, unless each one is in a position to sue. Brandon v. Scott, xc. 234 ; 7 E. & B. 234. Lies on a joint and several promissory note made by the defendant and two others, one of whom is one of the plaintiffs. Beecham v. Smith, xcvi. 442 : E., B. & E. 442. ' ' May be brought, though a suit for the same subject-matter be pending in the United States. Cox v. Michell, xcvii. 55 ; 7 C. B. N. S. 55. In slander for calling plaintiff's wife a bawd and her house a bawdy house, it is unnecessary to join the wife. Huckle v. Reynolds, xcvii. 114; 7 C. B. N. S. 114. Reversioner may bring an action against stranger who abridges and interferes with his estate. Bell v. Midland Railway Co., c."287 ; 10 C. B. N. S. 287. The interest of the husband of plaintiff in goods converted to defendant's use before plaintiff's marriage, goes to the assignees in bankruptcy of the husband, and they must unite with plaintiff in the suit. Richbell v. Alexander, c. 324 ; 10 0. B. N. S. 324. ' ' 23 & 24 Vict. c. 126, s. 19 does not authorize the joinder of several persons in a ACTION, VIII.— IX. 27 declaration on a contract, the right to sue upon which has come to one of them by survivorship. Bellingham v. Clark, ci. 332 ; 1 B. & S. 332. No stranger to the consideration can take advantage of a contract though made for his benefit. Tweddle v. Atkinson, ci. 393 ; 1 B. & S. 393. Medical practitioner entitled to bring action and recover if he is registered at the time of trial under 21 & 22 Vict. c. 98. Turner v. Reynall, cviii. 328 ; 14 C. B. N. S. 328. Can be brought by party in his own right where by law of foreign country property is vested absolutely in plaintiff, vanquelin v. Bouard, cix. 341 c. ; 15 C. The fact that one lets as auctioneer is not conclusive evidence that the contract was not made with him personally. Fisher v. Marsh, exviii. 411 ; 6 B. & S. 411. IX. Agaihst whom brought. For plan of lunatic asylum action may be brought against clerk of committee of visitors even though there can be no execution. Kendall v. King, lxxxiv. 483 ; 17 C. B. 483. And for work beyond written contract. Ibid. Under 15 & 16 Vict. c. 31 suit must be brought against officers of the society appointed for the purpose. Burton v. Tannahill, lxxxv. 797 ; 5 E. & B. 797. Qucere, will action lie against corporation for use of a name to which another has acquired a right. Lawson v. Bank of London, lxxxvi. 84 ; 18 C. B. 84. Solicitor of mortgagee has no claim against mortgagor for his charges where negotiation fails. Wilkinson v. Grant, lxxxvi. 319 ; 18 C. B. 319. Does not lie against master of vessel for loss occasioned by his going to another port named in the charter-party, he having waited a reasonable time at the desig- nated port without receiving orders. Sieveking v. Maass, lxxxviii. 670 ; 6 E. & B. 670. Against member of a club which controlled its own funds and authorized secre- tary to buy without supplying the money. Cockerell v. Aucompte, lxxxix. 440 ; 2 C. B. N. S. 440. Against sheriff for detaining one after notice who falsely declared herself to be the defendant in a capias. Dunston v. Paterson, lxxxix. 495 ; 2 C. B. N. S. 495. Does not lie against shareholder in a banking company incorporated under 7 & 8 Vict. c. 113 for debt of corporation. Fell v. Burchett, xc. 537 ; 7 E. & B. 537. Husband not liable for loan to the wife though it was expended for necessaries. Knox v. Bushell, xci. 335 ; 3 C. B. N. S. 335. Does not lie by the rector against the owners of lands to recover the rent-charge created in lieu of tithes by 5 G. 4, c. 14. Bedford v. Sutton Colefield, xci. 449 ; 3 C. B. N. S. 449. Action on a street- cleaning contract made by trustees under a local act is pro- perly brought against the district board under 18 & 19 Vict. c. 120. Sinnott v. Board of Works, xci. 674; 3 C. B. N. S. 674. Lies against a Local Board of Health eo nomine for negligence. Southampton Bridge Co. v. Local Board, xcii. 801 ; 8 E. & B. 801. A deed amounting only to a covenant not to sue one of several joint contract- ors does not release the others. Willis v. DeCastro, xciii. 216 ; 4 C. B. N. S. 216. Lies against a director of a joint stock company for false representations in the prospectus, though they were not the sole inducement to the purchase of the shares. Clarke v. Dickson, xcv. 453 ; 6 C. B. N. S. 453. _ An action for services as clerk and attorney to commissioners under a local act, lies against the succeeding commissioners. Hall v. Taylor, xcvi. 107 ; E., B. & E. 107. * Lies against a corporation aggregate for libel. Whitfield v. S. E. Railway Co., xcvi. 115 ; E., B. & E. 115. Where a lease reserved to the lessor a right to make a covered sewer on the land to convey away his drainage, an action lay against the tenant for using it. Lee v. Stevenson, xcvi. 512 ; E., B. & E. 512. Against a corporation aggregate for the malicious acts of interference of its servants with defendant, if these acts are within the scope of its formation. Green v. London General Omnibus Co., xcvii. 290 ; 7 C. B. N. S. 290. A judicial officer cannot be sued for an adjudication according to the best of 28 ACTION, IX.— XI. his judgment upon a matter within his jurisdiction. Kemp v. Neville, c. 523 ; 10 0. B. N. S. 523. Does not lie against justices who, without malice, mistakenly determine a ques- tion properly before them. Sommerville v. Mirehouse, ci. 652 : 1 B. & S. 6'52. Lies against a justice who issues a distress warrant without malice where va- lidity of rate bona fide disputed, and he has no reason to believe the contrary. Pease v. Chaytor, ci. 658 ; 1 B. & S. 658. Action does not lie by sheriff's officer against attorney for charges in serving a writ. Cole v. Terry, ci. 998 ; 1 B. & S. 998. Directors of a corporation are personally liable for false statements in the report to stockholders on the faith of which plaintiff buys stock. Scott v. Dixon, cii. 1099 ; 1 B. & E. 1099. A foreign ambassador,, while acting as such here, cannot be sued. Magdalena Steam Nav. Co. v. Martin, cv. 92 ; 2 E. & E. 94. Does not lie against a client by counsel on a contract for fees. Kennedy v. Broun, cvi. 677 ; 13 C. B. N. S. 677. The Metropolitan Board of Works are liable for injuries caused to a ship by piles, obstructing navigation, driven by them into the Thames without consent of the admiralty. Brownlow v. Board of Works, cvi. 768 ; 13 C. B. N. S. 768. Members of industrial society individually liable on contract of society, made before 25 & 26 Vict. c. 87, and on which no action had been brought before said act. Dean v. Mellard, cix. 19 ; 15 C. B. N. S. 19. _ Will not lie against attorney for erroneous opinion, where he is not employed, Fish v. Kelly, cxii. 194 ; 17 C. B. N. S. 194. Will not lie against judge for judicial act, even if malicious and corrupt. Fray v. Blackburn, cxiii. 576 ; 3 B. & S. 576. Does not lie against personal representatives of mother for support of bastard. Ruttinger v. Temple, cxvi. 491 ; 4 B. & S. 491. Lies against a District Board of Works who by sewage pollute water flowing through the land of another. Cator v. Lewisham, cxvii. 115 ; 5 B. & S. 115. Drainage commissioners acting as trustees for a public purpose without reward are not liable for damages resulting from the negligence or want of skill of their servants. Coe v. Wise, cxvii. 440 ; 5 B. & S. 440. A person on whom is imposed a statutory obligation is liable for injuries caused by the negligent performance of it by a contractor employed by him. Gray v. Pullen, cxvii. 970 ; 5 B. & S. 970. Not against a sheriff for an escape in the discharge of a debtor taken on a ca. sa. on the production by him of a certificate, under sec. 198 of 24 & 25 Vict. c. 134, signed by the Registrar in Bankruptcy, to the effect that a composition deed has been duly registered though the deed is invalid. Lloyd v. Harrison, cxviii. 36 ; 6 B. & S. 36. An auctioneer is not personally liable for non-performance of the contract when his bill names the solicitor of the principal. Mainprice v. Westley, cxviii. 420 : 6 B. & S. 420. May be brought against commissioners under 10 & 11 Vict. c. 34 for injuries caused by their negligence without showing affirmatively money in their hands. Ohrby v. Ryde Commissioners, cxvii. 743 ; 5 B. & S. 743. X. HOW BAEBED. By the judgment of a court of concurrent jurisdiction between the same par- ties directly upon the point. Routledge v. Hislop, cv. 549 ; 2 E. & E. 549. Action not barred by proceedings in admiralty for collision where sale of vessel has not produced enough to pay the damages. Nelson v. Couch, cix. 99 ; 15 C. B. N. S. 99. Where execution set aside as to one defendant, on terms that no action shall be brought against other defendant paying debt and costs, and defendant avails himself of order, he cannot have terms subsequently set aside. Wilcox v, Odden, cix. 837 ; 15 C. B. N. S. 837. XI. Local and tbansitoey. An action for a nuisance for obstructing a foot-way is local. Richardson v. Locklin, cxviii. 777 ; 6 B. & S. 777. ADMIRALTY— AGENT, I. 29 ADMIRALTY. Between high and low water-mark of seashore forms part of the adjoining county. Embleton v. Brown, cvii. 234 ; 3 E. & E. 234. Crimes committed there prosecuted before justices of county. Ibid. Cession of admiralty jurisdiction over inland bays and navigable streams in Constitution of United States does not deprive states of their jurisdiction. Ibid. Decree of admiralty no bar to subsequent action for collision when insufficient amount has been obtained by sale of vessel to pay damages. Nelson v. Couch, oix. 99 ; 15 C. B. N. S. 99. ADVOWSON. Bight of the crown to present to a benefice on appointment of incumbent to a bishopric not barred by previous grant of the advowson. Begina v. Eton College, xcii. 610; 8 E. & B. 610. Is a temporal right of property. Bishop of Exeter v, Marshall, cix. 857 ; 15 C. B. N. S. 857. Affirming s. c, xcvii. 653 ; 7 C. B. N. S. 653. Upon presentation of clerk bishop cannot reject except for cause and must state specially ground of unfitness. Ibid. He cannot reject clerk because he has no certificate of good conduct from bishop of diocese where he had previously been. Ibid. AGENT. I. How constituted. VII. Eights and liabilities of, as re- H. Extent of authority of. gards third persons. HI. How far principal affected by acts VIII. How third persons affected by of. dealing with. IV. "When principal may be sued on IX. Effect of subsequent ratification contract made with. of acts of. V. Duty and liability of, to principal. X. Compensation of. VI. Bights of, as regards principal. One part owner of ship not agent for other part owner in contracting debts for repairs unless authorized. Brodie v. Howard, Ixxxiv. 109 ; 17 C. B. 109. Agent for election expenses not agent to whom bills to be sent within month under 17 & 18 Vict. c. 102. Grant v. Guinness, Ixxxiv. 190; 17 C. B. 190. "Where a husband abroad provides for his family, the wife living in adultery is not his agent to contract for necessaries for the children. Atkyns v. Pearce, lxxxix. 763 ; 2 C. B. N. S.763. That the defendant received a share of the profits and knew that the one or- dering necessaries was the ship's husband is evidence of liability. Whitwell v. Perrin, xciii. 412 ; 4 C. B. N. S. 412. Where defendant's boy was sent with orders to follow up a delivery order for goods on which plaintiff had a lien, and he, by a promise that defendant would pay, obtained it, and the following day defendant sent him with a check for a large part of the sum, held not sufficient evidence of boy's authority to promise. Fitzgerald v. Dressier, xciv. 885 ; 5 C. B. N. S. 885 ; also reported xcvii. 374 ; 7 C.B. N.S. 374. No implied agency to contract for necessaries where wife, after adultery, lives apart from her husband. Cooper v. Lloyd, xcv. 519 ; 6 C. B. N. S. 519. She may be a witness as to the adultery. Ibid. Allowing a carrier to hold himself out as the agent and his warehouses as the 30 AGENT, I.— III. receiving house of a railway company, makes him the agent of the company for receiving goods. In re Baxendale Railway Co., ciii. 787 ; 11 C. B. N. 3. 787. Agency of wife to contract for necessaries will not exist where prohibited by husband, she being told to apply to him whether fact known to tradesman or not. Jolly v. Rees, cix. 628 ; 15 C. B. N. S. 628. Quaere, if the wife had been living separate without her fault or left destitute. Ibid. Lessee of manor in receipt of rent and profits, doing acts inconsistent with assignment of lease in trust, is not agent for the trustees. Dean, &c, v. Duke of Buckingham, cxii. 391 ; 17 C. B. N. S. 391. Semble, that there is difference between lord of a manor and other cestuis que trust in receipt of rents and profits as to presumption of agency : Per Willes, J. Ibid. In latter case there is a presumption that cestui que trust is agent. Ibid. II. Extent of authority of. Where debtor bona fide in settlement of claim, gave agent of creditor his own check drawn several days before, which had not been presented, it is not payment. . Underwood v. Nicholls, lxxxiv. 239 ; 17 C. B. 239. Semble, an agent should receive debts of principal in money. Ibid. The fact that a churchwarden was aware of a long standing custom of using a church rate in an unauthorized way and did not object, is evidence of authority to vestry clerk to so apply it. Cooper v. Law, xcv. 502 ; 6 C. B. N. S. 502. An agent at a foreign port to whom a ship is sent, under a charter-party for loading, has no implied authority to substitute a distant port or a different quality of cargo. Sickens v. Irving, xcvii. 165 ; 7 C. B. N. S. 165. An assured, leaving his papers with his brokers for adjustment of the loss, is estopped from denying their authority to collect the money. Sweeting v. Pearce, xcvii. 449 ; 7 C. B. N. S. 449. Affirmed in Exchequer Chamber, xcix. 534 ; 9 C. B. N. S. 534. Authority by a private owner to his servant to sell and deliver a horse, does not imply a right to warrant. Brady v. Todd, xcix. 592 ; 9 C. B. N. S. 592. Authority to endorse a bill cannot be inferred from delivery for consideration with assurance of its payment. Harrop v. Fisher, c. 196 ; 10 C. B. N. S. 196. An acceptance of a bill " per procuration" is notice of a limited authority. Stagg v. Elliott, civ. 373 ; 12 C. B. N. S. 373. ' A man left in charge of a distress by a broker, who has distrained, has no im- plied authority to receive the rent. Boulton v. Reynolds, cv. 369 ; 2 E. & E. 369. Authority of master of vessel to bind owners by consenting to sale of damaged cargo. Blasco ». Fletcher, cviii. 147 ; 14 C. B. N. S. 147. Broker employed to effect policy of insurance has no power to have it can- celled. Xenos v. Wickham, cviii. 861 ; 14 C. B. N. S. 861. Part owner of vessel liable for act of managing owner or ship's husband in pro- curing bail to secure release of vessel in admiralty. Barker v. Hiehlev cix 27 ■ 15 0. B. N. S. 27. J Authority of wife to contract for necessaries does not exist where she has been forbidden to do so by husband and told to apply to him. Jolly v. Rees, cix. 628 ; 15 C. B. N. S. 628. And this whether the fact is known to tradesman or not. Ibid. Authority to receive rent given to one having no interest is revocable. Ven- ning v. Bray, ex. 502 ; 2 B. & S. 502. Architect employed to prepare specifications and employ builder cannot bind employer by statement to builder as to the quantity of materials reauired Scriv- ener v. Pask, cxiv. 785 ; 18 C. B. N. S. 785. " After making bid and its acceptance the builder is bound by it. Ibid. And the architect has no authority to change or vary it. Ibid Money due on demand need not be paid to agent making demand unless authority be shown. Toms v. Wilson, cxvi. 442, 455 ; 4 B. & S. 442, 455. III. HOW FAR PRINCIPAL AFFECTED BY ACTS OF. Payment to bailiff's assistant is good as against the sheriff, though he never received the money. Gregory v. Cotterell, lxxxv. 571 ; 5 E. & B. 571 Where excessive costs obtained through false statement made in attorney's AGENT, III. 31 office without his knowledge, he was compelled to refund and pay expenses of rule. Palmer v. Evans, lxxxvii. 151 ; 1 C. B. N. S. 151. Landlord liable in trespass for the acts of an agent who exceeded his authority and seized goods not distrainable. Gauntlett ». King, xci. 59 ; 3 0. B. N. S. 59. The " life" and his referees are not the agents of the party interested in a policy of life insurance so as to make their fraud his own. Wheelton v. Hardistv, xcii. 232; 8E. &B. 232. J ' An order of compromise made at Nisi Prius by counsel in the presence of the client will not be set aside on the ground that he did not understand the proceed- ings. Chambers v. Mason, xciv. 59 ; 5 C. B. N. S. 59. Landlord is responsible for irregularities by the broker in conducting a distress he was authorized to make. Haseler v. Lemoyne, xciv. 530 ; 5 C. B. N. S. 530. Master not liable for the negligence of the stevedore though the charter-party provide that the stevedore is to be paid by and to be under the orders of the cap- tain. Blaikie v. Stembridge, xcv. 894; 6 C. B. N. S. 894. Dealing with an agent when principal acts in such a way as to enable agent to hold himself forth as principal. Ramazotti v. Bowring, xcvii. 851 ; 7 C. B. N. S. 851. A fact stated by counsel before the court is evidence for the other side. Hal- ler v. Worman, xcix. 892 ; 9 C. B. N. S. 892. An employer is liable for injuries caused by the negligence of a contractor intrusted with a duty incumbent on the employer. Pickard v. Smith, c. 470 ; 10 C. B. N. S. 470. When principal is acting gratuitously in the execution of a public duty for the benefit of the public, he is not responsible for negligence of agent employed by him. Holliday v. St. Leonard, ciii. 192 ; 11 C. B. NT S. 192. Notice to plaintiff's attorney of an act of bankruptcy is notice to plaintiff. Brewin v. Brisooe, cv. 117 ; 2 E. & E. 117. Knowledge on the part of the principal that it is in the ordinary course of business for the agent to act in a certain way, and knowledge without objection that he has so acted in the specific instance, amounts to permission. Sentance v. Hawley, cvi. 458 ; 13 C. B. N. S. 458. After having written that A. w.ould see defendant on the subject in dispute and that he had authorized him to do so with a view to an amicable arrangement plaintiff cannot repudiate an agreement made by A. contrary to instructions. Trickett v. Tomlinson, cvi. 663 ; 13 C. B. N. S. 663. How far authority of servants and officers to make arrest may be presumed to justify action of false imprisonment against railway company. Goff v. G. N. Railway Co., cvii. 672 ; 3 E. & E. 672. Persons allowing their names to be used as directors of a projected company for transport of emigrants held liable for breach of contract made with passenger. Collingwood v. Berkeley, cix. 145 ; 15 C. B. N. S. 145. A contract limiting liability of carrier signed by common agent of both parties sufficient under 17 & 18 Vict. c. 31, s. 7. Aldridge v. G. W. Railway Co., cix. 582; 15 C.B.N. S. 582: Qucere, whether owners of vessel affected by knowledge of pilot as to state of channel in dock. Thompson v. N. E. Railway Co., ex. 106 ; 2 B. & S. 106. Question of liability of principal for acts of agent discussed, per Erie. J. Tobin v. The Queen, cxi. 310 ; 16 C. B. N. S. 310. _ Queen not liable for tortious act of captain in navy. Ibid. . When there is a clear contract through brokers for purchase of goods, principal bound. Heyworth v. Knight, cxii. 298 ; 17 C. B. N. S. 298. When goods are shipped by agent of charterer, master of vessel has no power to change terms of charter-party, and owner has lien for freight. Pearson v. Goschen, cxii. 352 ; 17 C. B. N. S. 352. Principal bound by knowledge of agent that factor had a principal, no matter how acquired. Dresser v. Norwood, Ex. Ch., reversing C. P. cxii. 466; 17 C. B. N. Si 466. In such case debt of factor cannot be set off. Ibid. Notice to agent is notice to principal. Doctrine considered. Am. Ed. note. Dresser v. Norwood, cxii. 482 j 17 C. B. N. S. 482. Parent acting as agent for infant daughter in choice of solicitor for preparing 32 AGENT, III.— V. marriage settlement can bind her as for necessaries. Helps v. Clayton, cxii. 553; 17 C.B.N. S. 553. Admission by night inspector on railway, as to past transactions, not binding on prinoipal though he had authority at the time of transaction. G. W. Rail- way Co. v. "Willis, cxiv. 748 ; 18 C. B. N. S. 748. One employing architect to prepare specifications and procure builder not liable for mistake in quantity of materials made by architect. Scrivener v. Pask, cxiv. 785 ; 18 C. B. N. S. 785. How far representation of agent will bind principal. Am. Editor's note (a). Scrivener v. Pask, cxiv. 798 ; 18 C. B. N. S. 798. _ Carrier not liable for agreement of agent changing usual mode of delivery of goods, without his knowledge. Butterworth v. Brownlow, cxv. 409 ; 19 C. B. N. S. 409. A person on whom is imposed a statutory obligation is liable for injuries caused by the negligent performance of it by a contractor employed by him. Gray v. Pullen, cxvii. 970 ; 5 B. & S. 970. No implied authority to the master of a vessel to do that which is a violation of law. Wilson v. Rankin, cxviii. 208 ; 6 B. & S. 208. IV. When peincipal may be sued on contract made with. The fact that defendant was one of the provisional committee of a projected company and a cistern was built by the engineer on his land is no evidence that he authorized the work. Patrick v. Reynolds, lxxxvii. 727 ; 1 C. B. N. S. 727. Registered proprietor of cab who hires it by the day for a certain sum to a licensed driver, the license being deposited with him, is responsible for driver's contracts. Powles v. Hider, lxxxviii. 207 ; 6 B. & B. 207. Where agent having charge of a jewelry shop at Lewes, where he habitually purchased on credit of principal, bought goods at London and absconded, prin- cipal held liable. Summers v. Solomon, xc. 879 ; 7 E. & B. 879. Vendor cannot sue the undisclosed principal of vendee nine months after dis- covery and after his position toward his agent has changed. Smethurst v. Mitchell, cii. 622 ; 1 E. & E. 622. "When agent has express authority to incur expenses, principal is liable to third party. Maddick v. Marshall, Ex. Ch. cxii. 829 ; 17 C. B. N. S. 829. Affirm- ing s. c. cxi. 387 ; 16 C. B. N. S. 387. And it will make no difference that agent had secret agreement with principal that he should not be liable. Ibid. V. Duty and liability of, to principal. ' Agreement between landlord and his agent, for letting houses, that the latter should under no pretence be an agent to receive any money on his account, bro- ken by the agent receiving deposit-money for houses let by him. Brav v. Chand- ler, lxxxvi. 718 ; 18 C. B. 718. In a suit for negligence, against an agent to collect insurance, where the money is retained by an insurance broker who knew of the agency but claimed a lien for other commissions due him from the agent, the measure of damages is not the whole sum in the hands of the broker. Cahill v. Dawson, xci. 106 ; 3 C. B. N. S. 106. ' Not liable to principal for the failure of the consideration of an authorized contract because he made it in his own name. Risboure v. Bruckner, xci 812 • 3 C. B. N. S. 812. * ' ' Shipping-agent not necessarily bound to see to the quality of goods shipped. Zwilchenbart v. Alexander, ci. 233 ; 1 B. & S. 233. A house agent must use reasonable care in ascertaining the pecuniary condi- tion of a person whom he introduces to a landlord as tenant. Ilevs v. Tindall ci. 296 ; 1 B. & S. 296. J ' An agent authorized to deliver goods upon payment of price doing so without payment is liable for their value. Stearine Co. v. Heintzmann, cxii. 56 ■ 17 C. B. N. S. 56. _ Where by deed of settlement a manager of a banking company is only to be liable for wilful neglect he is not liable for acts of negligence. Ward v. Green- land, cxv. 527 ; 19 C. B. N. S. 527. AGENT, VI.— VII. 33 VI. Eights of, as regards principal. Where agent to sell on commission finds purchaser, but principal refuses, law implies a contract to pay a reasonable remuneration. Prickett v. Badger, lxxxvii. 296 ; 1 C. B. N. S. 296. Semble, that remuneration would be amount of commission. Ibid. One who orders stockbroker to buy authorizes him to deal according to the course and practice of the market. Taylor v. Stray, lxxxix. 175 ; 2 C. B. N. S. 175. Bound to accept shares bought for him, though bank in the meantime stopped payment and directors have not approved transfer, he refusing to sign the deed. Ibid. Broker who defended an action for unliquidated damages upon a contract which his principal refused to carry out, may recover from the principal the damages and the costs of defending the suit. Broom v. Hall, xcvii. 503 ; 7 C. B. N. S. 503. Attorney has no authority to compromise a suit against the direction of the client, though for his benefit and by advice of counsel. Fray v. Voules, cii. 839 ; 1 B. & E. 839. The estoppel of a bailee from denying the title of his bailor ceases when the bailment is determined by what is equivalent to eviction by title paramount. Biddle v. Bond, cxviii. 224; 6 B. & S. 224. VII. Rights and liabilities op, as regards third persons. Defendants entered into charter-party in their own name " by authority of and as agents for" an alien, held, they were personally responsible for demur- rant. Lennard v. Robinson, lxxxv. 125 ; 5 E. & B. 125 Defendant not liable on contract made " as agent for and on behalf of" a foreign principal. Green v. Kopke, lxxxvi. 549 ; 18 C. B. 549. It is in every case, foreign or otherwise, a question of intention. Ibid. Where A. entered into a contract on behalf of a foreign company, but signed in his own name and part of the freights were to be paid in London, held, he could sue personally. Cooke v. Wilsou, lxxxvii. 153 ; 1 C. B. N. S. 153. One who without authority bona fide contracts as agent, is liable for the breach of the implied promise. Collen v. Wright, xc. 301 ; 7 E. & B. 301. And for costs of an equity suit against supposed principal. Ibid. Affirmed in Exchequer Chamber, xcii. 647 ; 8 E. & B. 647. One who as agent without authority ordered a ship, held liable for expenses and loss on resale, supposed principal being solvent. Simons v. Patchett, xc. 568 ; 7 E. & B. 568. One who contracts without restrictive words is bound personally, though he calls himself agent for another. Parker v. Winslow, xc. 942 ; 7 E. & B. 942. One who bona fide, but without authority, makes a parol lease for seven years is not liable to the lessee for qpsts of an unsuccessful defence in ejectment though he advised it. Pow v. Davis, ci. 220 ; .1 B. & S. 220. Agent bona fide and without notice of objection, paying over to principal money received, not liable. Holland v. Russell, ci. 424 ; 1 B. & S. 424. Nor where the moneys have been allowed in account between them or paid under direction of principal. Iby. When a contract is made by an agent, who both describes and signs himself as agent, giving the name of his principal, he is not responsible as principal, though principal an individual and is referred to in the plural. Deslandes v. Gregory, cv. 602 ; 2 E. & E. 602. Affirmed in Exchequer Chamber, cv. 611 ; 2 E. & E. 611. Agent for foreign principal can limit his liability by stipulation in charter- party. Millvain v. Perez, cvii. 495 ; 3 E. & E. 495. Ship-broker not liable to consignee for freight paid under mistake of fact when he has settled bona fide with owner of vessel. Shand r. Grant, cix. 324 ; 15 C. B. N. S. 324. Captain of navy liable for tortious act, not the crown. Tobm v. The Queen, cxi. 310; 16 C.B.N. S. 310. Proprietor of theatre letting it for one night to performer, and furnishing ac- tors, light, &c.,*for specified sum, liable as principal for violation of copyright in representation of piece. Marsh v. Conquest, cxii. 418 ; 17-C. B. N. S. 418. Vol. III.— 3 34 AGENT, VII.— X. Assignment of copyright and effect of in United States considered. Am. Ed. note. Marsh u. Conquest, cxii. 435 ; 17 C. B. N. S. 435. An auctioneer is not personally liable for non-performance of the contract when his bill names the solicitor of the principal. Mainprice v. Westley, cxviii. 420; 6B. & S. 420. " VIII. HOW THIRD PERSONS AFFECTED BY DEALING WITH. Where plaintiff requested defendant to treat his agent as principal, in a trans- action, whereby defendant was induced to give the agent credit in other matters, these charges are not a setroff in an action for the money received in the trans- action. Ferrand u. Bischoffsheim, xciii. 710; 4 C. B. N. S. 710. Quaere, can a holder of shares who by trusting blank transfers to his broker, enables him, by forging an attestation, to induce the company to transfer the shares to bona fide purchasers have the register rectified under 19 & 20 Vict. c. 47 s. 25, and 20 & 21 Vict. c. 14, s. 8, and his name restored. Ex parte Swan, xcvii. 400 ; 7 0. B. N. S. 400. That the agent of one abroad has general authority to invest and receive prin- cipal moneys and interest is evidence of authority to waive a stipulation in an annuity deed for notice. Webber v. Granville, xcix. 883 ; 9 C. B. N. S. 883. A servant is not an agent within 6 Geo. 4 c. 94, and 5 & 6 Vict. c. 39. Lamb v. Attenborough, ci. 831 ; 1 B. & S. 831. One may be an agent under the factor's act, 5 & 6 Vict. c. 39, though employed but the one time and out of the ordinary course of his business. Heyman <.. Flewker, cvi. 519 ; 13 C. B. N. S. 519. Buyer knowing that seller is agent, though principal unknown, cannot set off debt of agent. Semenza v. Brinsley, cxiv. 467 ; 18 C. B. N. S. 467. But where insurance money was collected and paid over by the agent without notice he is not liable to the underwriter. Holland v. Bussell, cxvi. 14 ; 4 B. & S. 14. Even though the payment was only by settlement of account. Ibid. IX. Effect of subsequent ratification of acts of. That illegal arrest was made by minor son of defendant, -who was in his em- ploy, and that when he heard of it he did not forbid but said he would not inter- fere, is no evidence of ratification. Moon v. Towers, xcviii. 611 ; 8 C. B. N S. 611. When necessary work is done with knowledge of directors, under orders of secretary ,_ company is liable. Allard v. Bourne, cix. 468 ; 15 0. B. N. S. 468. And this would be so whether certain formalities had been dispensed with or not. Ibid. X. Compensation of. Defendant engaged plaintiff to sell advowson upon commission on purchase- money when sale effected, and afterward defendant himself sold, held that plain- tiff entitled to nothing. Simpson v. Lamb., lxxxiv. 603 ; 17 C. B. 603. An agreement that plaintiff should be paid by commission on proceeds of dry merchantable palm oil, but should receive none on any wet, dirty, or unmer- chantable oil, he was held entitled to no commission on oil wet in the under- standing of the trade, though wetness very slight and oil merchantable. Wardc v. Stuart, lxxxvii. 88; 1 C. B. N. S. 88. Commission held due at time for payment of purchase-money where there was stipulation that no accommodation, &c, should retard their navmeut. Lara v Hill, cix. 45 ; 15 C. B. N. S. 45. V J Agent entitled to commissions when his act has brought about the relation of buyer and seller. Green v. Bartlett, cviii. 681 ; 14 C. B. N, S. 681. ALIEN.— APOTHECARY. 35 ALIEN. Defendants entered into charter-party in their own name "by authority of, and agents for" an alien ; held personally responsible for demurrage. Lennard v. Robinson, lxxxv. 125 ; 5 E. & B. 125. A foreign debtor lured to England by fraud of plaintiff discharged from arrest. Stein v. Valkenhuysen, xcvi. 65; E., B. & E. 65. AMBASSADOR. A public minister of a foreign state, while he remains a public minister here cannot be sued, though the action arise out of commercial transactions by him here and though neither his person nor goods are touched by the suit. Magdalena Steam Nav. Co. v. Martin, cv. 92 ; 2 E. & E. 94. ANIMALS. Owner of land has a property in game killed thereon. Blades v. Higgs, civ. 500 ; 12 C. B. N. S. 501. Affirmed in Ex. Ch., cvi. 844, and in House ofLords, Ibid. 866. ANNUITY. A term was underlet to secure annuities and afterward subject to them assigned to plaintiff who continued by mistake after the death of the survivor of the an- nuitants to pay rent to his representatives ; held, it could be recovered back as money had and received, less charges. Barber v. Brown, lxxxvii. 121 ; 1 C. B. N. S. 121. Agreement by a mother to take charge of and support her illegitimate children is a sufficient consideration for a promise by the father to pay an annuity. Smith v. Eoche, xcv. 223 ; 6 C. B. N. S. 223. And the death of one of the children does not relieve him. Ibid. Where through a previous arrangement part of the consideration stated in the memorial was handed back immediately to the solicitor of grantee for expenses, &c, it is no defence to covenant on the deed. Howkins v. Bennet, xcvii. 507 ; 7 C. B. N. S. 507. A clerical error in copying the names of two grantors as two witnesses does not invalidate the memorial. Ibid. A transaction securing the annual payments being over 5 per cent, upon the land and the principal by a policy of insurance on the life of a grantor, with a covenant for payment of premiums, js not usurious. Ibid. APOTHECARY. Who entitled to be registered as pharmaceutical chemists under Pharmaceuti- cal Society's Act 15 & 16 Vict. c. 56. Regina v. Pharmac. Society, Ixxxv. 138 ; 5 E. & B. 138. 36 APOTHECARY— ARBITRATION AND AWARD, I. The medical act 21 & 22 Vict. e. 90 is not retrospective. Wright v. Greenroyd, ci. 758 ; 1 B. & S. 758. Under 21 &22 Vict. c. 98, a registration completed before_time of trial will enable medical practitioner to recover. Turner v. Reynall, cviii. 328 ; 14 C. B. N. S. 328. Sernfile, that if of two in partnership one alone were registered it would be sufficient. Ibid. General council of board under 21 & 22 Vict. c. 90, s. 29, have power to strike physician's name from register for cause. Ex parte La Mert, cxvi. 582 ; 4 B. & S. 582. APPRENTICE. Acceptance by the plaintiff of an obligation for an additional sum from the father of a boy who was apprenticed to him by a charitable society, without its knowledge, is not a fraud upon it. Westlake v. Adams, xciv. 248 ; 5 C. B. N. S. 248. The indenture though void because not setting out the full consideration is a sufficient consideration for the promise to pay the additional amount. Ibid. Action for enticing away an apprentice does not lie if the contract of appren- ticeship be void. Cox v. Muncey, xcv. 375 ; 6 C. B. N. S. 375. There being evidence that the father and son were examined by magistrates and the son bound as an apprentice with their assent and that he served, the court presumed an order properly recited in the indenture. Regina v. Broad- hempston, cii. 154 ; 1 B. & E. 154. Guardians of poor of Canterbury cannot apprentice Blue Coat Boys without their consent or after age of fifteen years. Act 1 Geo. 2, c. 20, does not author- ize it. St. Nicholas v. St. Botolph, civ. 646 ; 12 C. B. N. S. 646. An attorney's clerk articled by indenture is an apprentice under 3 &4W. & M. c. 11. St. Pancras v. Clapham, cv. 743 ; 2 E. & E. 743. Apprentice working in one place and residing at night in another, haying slept during last night of apprenticeship in latter, acquires settlement there. Regina v. Barton upon Irwell, cxiii. 604 ; 3 B. & S. 604. After sixty-nine years, evidence of contents of indenture admissible, upon proof of search among apprentice's papers. Regina v. Hinckley, cxiii. 885 ; 3 B. & S. 885. ARBITRATION AND AWARD. I. Subject of reference. X. Costs. II. Submission. XI. Waiver of objections to award. III. Arbitrator generally. XII. Effect of award. IV. Umpire. XIII. Proceedings upon award. V. Misconduct of arbitrator. XIV. Setting aside of award. VI. Excess of authority by arbitrator. XV. Revocation of submission. VII. Time within which award must XVI. Under lands clauses acts. be made. XVII. Under common law procedure VIII. Award must be on the whole mat- acts. ter submitted. XVIII. Other matters relating to arbi- IX. Other matters relating to the va- tration and award, lidity of award. I. Subject of reference. The arbitration clauses of 1 1 & 12 Vict. c. 63 do not .apply where liability to make compensation is denied. Regina v. Burslem Board of Health, cii. 1077 ; 1 E. & E. 1077. ARBITRATION AND AWARD, II— V. 37 II. Submission. Where contract provided for arbitration, but affidavits alleged fraud, court re- fused to enforce the reference. Wallis v. Hirsh, lxxxvii. 316 ; 1 C. B. N. S. 316. 10 Geo. 4, c. 56, s. 27 and 18 & 19 Vict. c. 63, s. 40, as to arbitration, apply only to disputes between a friendly society and its members as individual members only. Sindon ,,. Banks, cvii. 623 ; 3 E. & B. 623. When a treasurer of such a society has money in his hands belonging to it, an action 'will lie. Ibid. Affidavit of authority required when one of two signs an agreement of arbi- tration with third for himself and the other to make it rule of court. Re Aldington v. Chesshire, cix. 375 ; 15 C. B. N. S. 375. No amendment of pleadings allowed after submission of case to arbitration where the order of reference contains no such power. Smurthwaite v. Richard- son, cix. 463 ; 15 C. B. N. S. 463. Agreement for arbitration, when made a rule of court under s. 17 of Common Law Procedure Act 1854. Newton v. Hetherington, cxv. 342 ; 19 C. B. N. S. 342. III. Arbitrator, generally. Where award sent back for correction and arbitrator certifies that it " ought to be amended" in certain way, it is sufficient amendment. Davies v. Pratt, lxxxiv. 183 ; 17 C. B. 183. One who under an order by consent was to settle the facts, held an arbitrator under 3 & 4 W. 4, c. 42, with power to compel attendance of witnesses. Graham v. Glover, lxxxv. 591 ; 5 E. & B. 591. Habeas corpus ad testificandum granted to bring prisoner before arbitrator for purpose of giving evidence. Marsden v. Overbury, lxxxvi. 34 ; 18 C. B. 34. On reference to three arbitrators or any two of them, an award by two with- out consulting third, not good. In re Beck and Jackson, lxxxvii. 695 j 1 C, B. N. S. 695. He is the sole and final judge of law and fact unless there is fraud or mistake of law apparent on the face of the award. Hodgkinson v. Fornie, xci. 189 ; 3 C. B. N. S. 189. Power of arbitrator under 11 & 12 Vict. c. 63, s. 123, limited to an apportion- ment of paving, sewering, &c, among the owners of property. Bayley v. Wil- kinson, cxi. 161 ; 16 C. B. N. S. 161. He is not entitled to inquire whether the gross expense was reasonable or not Ibid. IV. Umpire. Umpire must be chosen by the judgment of the two and not by lot. Steam Shipping Co. v. Crosskey, xcviii. 397 ; 8 C. B. N. S. 397. Excess of authority by umpire under 8 & 9 Vict. c. 18, in assessing damages for land. In re Brogden, xcix. 229 ; 9 C. B. N. S. 229. Appointment of, time when it takes effect. Ringland v. Lowndes, cix. 173 ; 15 C. B. N. S. 173. An award by an umpire, upon evidence not communicated to one of the par- ties would be bad, even though there was a mercantile usage allowing it. In io Brook and Delcomyn, cxi. 403 ; 16 C. B. N. S. 403. An appointment of umpire by arbitrators under Public Health Act, 11 & 12 Vict. c 63, after twenty-one days for making award have expired, is not too late. lloldsworth v. AVilson, cxvi. 1 ;. 4 B. & S. 1 ; s. c, ex. 480 ; 2 B. & S. 480. But the appointment muBt be called between the twenty-one days and before three months have elapsed, and must be made within six months. Ibid. An umpire, under Public Health Act, has power to award costs. Ibid. V. Misconduct of Arbitrator. , A lay arbitrator cannot retain an attorney with him against the protest of one of the parties. Proctor v. Williams, xcviii. 386 ; 8 C. B. N. S. 386. Refusal of arbitrator to view the premises no ground for setting aside award. Munday v. Bluck, xcix. 557 ; 9 C. B. N. S. 557. 38 ARBITRATION AND AWARD, V.— IX. The employment by an arbitrator of the attorney of one of the parties (though his own attorney also), to assist him in framing his award, after he has made up his mind, while very improper, is not a ground for setting aside the award. In re Underwood and Railway Co., ciii. 443 ; 11 C. B. N. S. 443. How far arbitrator justified in refusing to postpone proceeding to await a ma- terial witness. Ginder v. Curtis, eviii. 723 ; 14 C. B. N. S. 723. Unless it amounts to misconduct award will not be set aside. Ibid. But not for matters within the discretion of the arbitrator. Ibid. VI. Excess of authority by Arbitrator. Arbitrator under the Friendly Societies Act may refuse to hear counsel. In re Macqueen, xcix. 793 ; 9 C. B. N. S. 793. Where the arbitrators were to find the loss by fire, to goods contained in cer- tain schedules and they in addition awarded the salvage, it was held excess. Skipper v. Grant, c. 237 ; 10 C. B. N. S. 237. Where excess alleged, the court will look into the facts. Llynfi Valley Kail-way Co. v. Brogden, c. 881 ; 10 C. B. N. S. 881. What will amount to excess of authority. Harrison v. Lay, cvi. 528 ; 13 C. B. N.S. 528. Attendance under protest and examination of witnesses before umpire pro- ceeding without authority, does not estop the party from taking advantage of want of authority subsequently. Ringland v. Lowndes, Ex. Ch. cxii. 514 ; 17 C. B. N. S. 514 ; reversing s. o. in C. P. cix. 173 ; 15 C. B. N. S. 173. VII. Time within which Award must be made. What will constitute a sufficient award within the three months prescribed by 11 & 12 Vict. c. 63, s. 126. Ringland v. Lowndes, cix. 173 ; 15 C. B. N. S. 173. Reversed, cxii. 514 ; 17 C. B. N. S. 514. VIII. Award must be on the whole matter submitted. An award of an umpire under 8 & 9 Vict. c. 18, finding the value of the land but silent as to severance damages, which had also been referred, is good. In re Duke of Beaufort, xcviii. 146 ; 8 C. B. N. S. 146. Although technical rules do not apply in mercantile arbitrations, an award by an umpire upon evidence not communicated to the other party would be bad. In re Brook and Delcomyn, cxi. 403 ; 16 C. B. N. S. 403. A mercantile usage allowing it would be bad. Ibid. IX. Other matters relating to the validity of Award. It is presumed that a condition precedent to arbitrator's acting has been ful- filled. Davies v. Pratt, Ixxxiv. 183; 17 C. B. 183. Attachment refused where it appeared that the arbitrators did not sign sub- mission to umpire at same time and in each other's presence. Lord v. Lord lxxxv._404; 5E.&B. 404. Certificate by one who was both receiver and arbitrator that he deducted and retained the costs without specifying them or which party was to pay them out of the moneys held as receiver does not invalidate the award. Roberts v. Eber- hardt, xci. 482 ; 3 C. B. N. S. 482. Where arbitration of all matters in difference provided for by agreement, the award is not invalidated because appointment of arbitrator is made by the party and a stranger severally and notice given by both. In re Haddan, xcix. 683 : 9 C. B. N. S. 683. ' Nor because the matter in dispute not particularized. Ibid. Nor because the notice requested the other side to name as arbitrator in writ- ing, addressed to the attorneys of the requesting party. Ibid. Stewards of a horse-race are not arbitrators and the decision of a majority is sufficient if fair. Parr v. Winteringham, cii. 394; 1 E. & E. 394. Award of umpire made without authority bad even though party attended under protest and examined witnesses. Ringland i: Lowndes, Ex. Ch. cxii. 514 • 17 C. B. N. S. 514. Reversing s. c. in C. P. cix. 173 ; 15 C. B. N. S. 173. ARBITRATION AND AWARD, X.— XIII. 39 X. Costs. Costs attach to report in form an award but in substanco a certificate. Sim v. Edwards, lxxxiv. 527 ; 17 C. B. 527. Where rule of reference was drawn without mentioning costs under the belief that they followed, it was amended after award. Bell v. Postlethwaite, lxxxv. 695 ; 5 E. & B. 695. Where costs abide event of award and the award is pajtly for plaintiff and partly for defendant, no costs allowed. Gribble v. Buchanan, lxxxvi. 691 ; 18 C. B. 691. Where costs to abide event and arbitrator empowered to direct verdict or non- suit and he finds for plaintiff but orders certain goods to be returned to defend- ant, plaintiff has costs. Matlock Gas Co. v. Peters, lxxxviii. 215 ; 6 E. & B. 215. Upon a reference of all matters in difference the costs in the cause to abide the event of the award they follow the event of the cause as decided by the award. Reynolds v. Harris, xci. 267 ; 3 C. B. N. S. 267. Part of a multifarious plea of justification being proved and part disproved the plaintiff is entitled to no costs and defendant to costs for the part proved, in- cluding for evidence applicable to that as well as to the rest of the plea. Ibid. Vide xciv. 872 ; 5 C. B. N. S. 872. On a reference to a county court judge, under 17 & 18 Vict., c. 125, s. 3, the costs are taxable in the same manner as if the reference had been to a master. Edwards v. Edwards, xciv. 536 ; 5 C. B. N. S. 536. Where on an agreement to refer, costs to abide the event, the arbitrator gives the plaintiff one farthing damages on one of the issues, he is entitled to costs. Wigens v. Cook, xcv. 784; 6 C. B. N. S. 784. Where costs to abide the event, and arbitrator found for defendant in set-off, but awarded a balance to plaintiff on other issues, plaintiff entitled to costs. Jones o. Jones, xcvii. 832 ; 7 C. B. N. S. 832. Court will not interfere where master has disallowed the attendance of more than one counsel. Hawkins v. Rigby, xcviii. 271 ; 8 C. B. N. S. 271. Aliter where master disallowed the attendance of counsel, before an accountant appointed by arbitrator. Ibid. Where several disputes, all growing out of an alleged breach of contract, are referred, the costs to abide the event of the award, the costs are not distributable, and there must be an award altogether in favor of one party to entitle him to costs. Re Marsack and Webber, cv. 637 ; 2 E. & E. 637. 13 & 14 Vict. c. 61, applies to an arbitration by the consent of parties before trial, wherein costs were ordered to abide the event of the award. Cowell v. Amman Colliery Co., cxviii. 333 ; 6 B. & S. 333. Where on appeal the Quarter Sessions orders a case to be referred with con- sent of parties, under 12 & 13 Vict. c. 45 s. 13, the terms are finally settled, in- cluding the question of costs. Regina v. West Riding, cxviii. 531 ; 6 B. & S. 531. XI. Waiver of objections to Award. When attendance of party will not operate as a waiver of defect in proceedings before umpire. Ringland v. Lowndes, cix. 173 ; 15 C. B. N. S. 173. Reversed, cxii. 514; 17 C. B.'N. S. 514. XII. Effect of Award. Award under Lands Clauses Consolidation Act 1845, merely ascertains dam- ages. Re Newbold & Metropolitan Railroad Co., cviii. 405 ; 14 C. B. N. S. 405. XIII. Proceedings upon Award. On motion for attachment objection cannot be raised which does not appear on face of award. Davies v. Pratt, lxxxiv. 183 ; 17 C. B. 183. Proper course is to motfe to set aside award. Ibid. Where there was a verdict subject to an award, and the award was afterward in favor of plaintiff, held he could sign judgment before time for moving to set it aside had elapsed. 0' Toole v. Pott, xc. 102; 7 E. & B. 102. Plea of nul tiel aqard puts in issue the making of a good and valid award. Roberts v. Eberhardt, xci. 482 ; 3 C. B. N. S. 482. 40 ARBITRATION" AND AWARD, XIII.— XVII. Reference by consent upon the usual terms gives arbitrator power to amend. Thompsett v. Bowyer, xcix. 284 ; 9 C. B. N. S. 284. Rule for payment of money under an award refused, there being unascertained costs in chancery payable to the other party under same award and no delay. Lambe ». Jones, xcix. 478 ; 9 C. B. N. 8. 478. Award under Lands Clauses Consolidation Act 1845, cannot be enforced by motion. Re Newbold & Metropolitan Railroad Co., cviii. 405 ; 14 C. B. N. S. 405. Magistrate must enforce award, duly made, under 10 Geo. 4, c. 56, s. 27. Re- gina v. D'Eyncourt, cxvi. 820 ; 4 B. & S. 820. An order of reference with the enlargements of time for making award en- dorsed may be made a rule of court without an affidavit of arbitrator or witness verifying the dates. Roberts v. Evans, cxviii. 1 ; 6 B. & S. 1. XIV. Setting aside of Award. Court will not set aside or send back an award on a suggestion that the arbi- trator adopted a wrong principle of valuation. Oldfield v. Price, xcv. 539 ; 6 C. B. N. S. 539. Nor on the ground that an order enlarging the time was erroneously entitled in the Queen's Bench. Ibid. XV. Revocation op submission. Leave will not be given to revoke the submission, unless there has been a breach of faith on the other side. Smurthwaite v. Richardson, cix. 463 ; 15 C. B. N. S. 463. ' ' XVI. Under lands clauses acts. Award by arbitrators under 8 & 9 Vict, c.18, where damages might have been assessed, final. Croft ». L. & N. W. Railway Co., cxiii. 436 ; 3 B. & S. 436. XVII. Under common law procedure acts. Judge may refer whole matter though some items in dispute. Browne i- Emerson, lxxxiv. 361 ; 17 C. B. 361. ' Judgment should be signed on. award before issuing execution. Kendil v Merritt, lxxxvi. 173 ; 18 C. B. 173. Where one of the parties to a reference of mutual claims became bankrupt and the assignees brought a fresh suit, court refused to stay proceedings Pen- nell v. Walker, lxxxvi. 651 ; 18 C. B. 651. Semble, that assignees are not " persons claiming through or under" the bank- rupt within meaning of sec. 11. Ibid. Where contract provided for arbitration, but affidavits alleged fraud, court refused to enforce the reference. Wallis v. Hirsch, lxxxvii. 316; 1 C B N S' 316. Where contract provided inter alia that certain policies of insurance should be delivered to plaintiff and that any question should be decided by arbitration, court refused to stay a suit for their non-delivery. Lurv v. Pearson lxxxvii 639 ; 1 C. B. N. S. 639. J Laisou, ixxxvu. The act permits matters referred to be remitted where the submission contains c £ ro y l ^ on xt may be made rule of court Morris v. Morris, lxxxviii. 383 • 6 L. & B. 383. Where award remitted to be set right on the face of it, parties need not be reheard. Ibid. . Party who acts upon » reference as existing and requests postponement estop- pea trom objecting to award that there was no written consent to enlargement wi? Tyerman v. Smith, lxxxviii. 719 ; 6 E. & B. 719. Where there was an agreement that matters in dispute should be referred, the court stayed a suit for undisputed demands, there being cross claims. Russell v. Pellegrini, lxxxviii. 1020; 6 E. )• Where during proceedings under deed of arrangement, an order of commis- sioner is made declaring party bankrupt and that is reversed on appeal, pro- ceedings are reinstated. Naylor v. Mortimore, cxii. 207 ; 17 C. B. N. S. 207. Sect. 103 of 24 & 25 Vict. c. 134, which provides that the adjudication shall relate back to the time of commitment, applies to persons petitioning in forma pauperis. Bramwell v. Eglinton, cxvii. 39 ; 5 B. & S. 39. Deed of arrangement may be registered after expiration of twenty-eight days under 24 & 25 Vict. c. 134, s. 194. Wishart v. Fowler, exvi. 674 ; 4 B. I S. 674. Even though time be extended after the twenty-eight days have expired. Ibid. And when so registered is admissible in evidence. Ibid. VI. Debts provable under commission. A claim for failure to replace certain railway shares and to pay dividends thereon and to indemnify for calls on mining shares pledged as collateral, all being breaches of an agreement before bankruptcy, is provable under 12 & 13 Vict. c. 106, s. 165. Betteley v. Stainsby, civ. 476; 12 0. B. N. S. 476. Where there is no judgment for costs, but only a verdict in the case at the time of bankruptcy, they are not provable under 11 & 12 Vict. e. 106, s. 181, or any of the other acts. Oxlade v. N. E. Railway Co., cix. 695 ; 15 C. B. N. S. 695. Such costs are not a contingent debt or liability under s. 178. Ibid. 24 & 25 Vict. c. 134, s. 154, made claims of surety of premiums in policy of insurance infuturo provable. Saunders v. Best, cxii. 731 ; 17 C. B. N. S. 731. A covenant to pay annual premiums on life policy, not a liability to pay money on a contingency, within 12 & 13 Vict. u. 106, s. 178. Mitcalfe v. Hanson, cxiii. 975 ; 3 B. & S. 975. The debt is not provable under that section. Ibid. VII. Transfer of property to assignees. (a) Election of assignees to take leasehold property. Where tenant mortgaged goods on the property, giving possession and then became bankrupt, owing more than a year's rent, it was held they could be dis- trained for the whole amount. Brocklehurst v. Lowe, xc. 176 ; 7 E. & B. 176. The goods were liable for rent, becoming due after assignees declined the tenancy. Ibid. Where the assignees used the premises only to preserve the goods, kept open the tap to save the license, paid rent on a distress and threatened to resist an ejectment, held no election, the improbability being great. Goodwin v. Noble, xcii. 587 ; 8 E. & B. 587. Transfer of the lease by assignees, is an acceptance. Mackley v. Pattenden, ci. 178 ; 1 B. & S. 178. Question whether acceptance within a reasonable time, is for the jury. Ibid. (6) Personal property. Fixtures, which would be removable by a tenant, annexed by the mortgagor in possession to the freehold for a permanent purpose, go to the mortgagee and not the assignee. Walmsley v. Milne, xcvii. 115; 7 C. B. N. S. 115. The interest of the husband of plaintiff in goods converted to defendant's use, before plaintiff's marriage, goes to the assignees of the husband and they must unite with plaintiff in the suit. Bichbell v. Alexander, c. 324 : 10 C. B. K. S. 324. Debts due for copyright sold by bankrupt may be resold to him by assignees under 24 & 25 Vict. c. 134, s. 137. Shipley v. Marshall, cviii. 566'; 14 C. B. N. S. 566. Assignees under second fiat against uncertificated bankrupt take good title to subsequently acquired property, except as against first assignees. Morgan v. Knight, cix. 669 ; 15 C. B. N. S. 669. Title of trustees under deed of arrangement under Act 1861, s. 197, after bank- ruptcy proceedings, relates back to act of bankruptcy. Topping v. Keysell, cxi. 258; 16 C. B. N S.258. Assignees not entitled by relation to property conveyed, bona fide, under pres- BANKRUPTCY, VII., (J)— IX. 59 sure, by bill of sale and possession taken. Shrubsole v. Sussams, osi. 4:32 ; 15 C. B. N. S. 452. In a case where title of assignees could not relate to an act of bankruptcy, un- der 12 & 13 Vict. c. 106, a distress, after the act of bankruptcy, by landlord for more than a year's rent, will bo good as against them. Paull v. Best, cxiii. 537 ; 3 B. & S. 537. Circumstances under which this title will not relate. Ibid. Profits of ecclesiastical benefice do not pass to assignees in bankruptcy under 24 & 25 Vict. c. 134, s. 135, without sequestration. Hopkins v. Clarke, cxvi. 836 ; 4 B. & S. 836. Nor does Bankrupt Law Consolidation Act 1849, 12 & 13 Vict. c. 106, s. 184, affect such cases. Ibid. VIII. Reputed ownership. (a) Property in Bankrupt's possession, order or disposition, under 6 Geo. 4, o. 16. Seizure of the goods of true owner in possession of bankrupt by the sheriff, before act of bankruptcy, under an execution against bankrupt being invalid, is not a withdrawal of them from his possession so as to prevent right of assignees. Barrow e. Bell, lxxxv. 540 ; 5 E. & B. 540. In order that the assignees should become entitled to the goods of another per- son, under this clause, they must be in the order or disposition of the bankrupt as ostensible owner with the consent of the true owner. Smith v. Hudson, cxviii. 431 ; 6 B. & S. 431. (6) Property in Bankrupt's possession, order or disposition, under 12 & 13 Vict. c. 106. Where owner goes to take possession of goods, previously assigned to him by bankrupt, and at door meets assignee in possession, who tells him of an assign- ment in bankruptcy already made, title of assignees good. Brewin v. Short, lxxxv. 227; 5 E. & B. 227. Mere intention not transaction within s. 133 of 12 & 13 Vict. c. 106. Ibid. Possession taken without notice before fiat makes owner's title good. Ibid. And anything done after bankruptcy without notice which before would have determined possession. Ibid. A mortgaged chattel left in possession of mortgagor at the time of his bank- ruptcy goes to the assignees though it be let out to a third party. Hornsby v. Miller, cii. 192; 1 E. & E. 192. Goods in the possession of the mortgagor under a demise from mortgagee, which provides that mortgagee can enter into possession only after twenty-four hours' notice. Spackman v. Miller, civ. 658 ; 12 C. B. N. S. 658. When cargo of a ship, supposed to be about to sail for England from Africa, is assigned, and there is time to send notice thereof before actual, but not before supposed time of sailing, but such notice is not sent in time to reach vessel before sailing, and cargo is delivered to assignee on arrival of vessel- after bankruptcy of assignor, the possession and title of assignee are good. Acraman v. Bates, cv. 456 ; 2 E. & E. 456. Quaere, was notice of assignment necessary. Ibid. The registering of a bill of sale under 17 & 18 Vict. c. 36 will not prevent the goods therein from passing to a bankrupt's creditors under 12 & 13 Vict. c. 106. Badger v. Shaw, cv. 472 ; 2 E. & E. 472. Property of others in possession of bankrupt with consent of owner, may be sold by assignee, under order by 12 & 13 Vict. c. 106, s. 125. Fielding v. Lee, cxiv. 499; 18C. B. N. S. 499._ Degree of particularity required in such order. Ibid. IX. Protected transactions. Service of attachment on garnishee will not hold goods as against subsequent assignees of debtor. Holmes v. Tutton, lxxxv. 65 ; 5 E. & B. 65. Attaching creditor is secured in meaning of sect. 184 of Bankrupt Act, but has not '' lien" so as to bring him within exception. Ibid. BANKRUPTCY, IX.— X. A person engaged in a trade or occupation described as "gentleman" in bill of sale before act of bankruptcy is within protection of 17 & 18 Vict. c. 36. Gray v. Jones, cviii. 743 ; 14 C. B. N. S. 743. Property obtained by creditor from debtor with knowledge of act of bank- ruptcy on the part of debtor, cannot be retained as against trustees under deed of arrangement. Topping v. Keysell, cxi. 258 ; 16 C. B. N. S. 258. Bill of sale of all bankrupt's effects under pressure made bona fide and pos- session taken is good as against assignees. Shrubsole v. Sussams, cxi. 452 ; 16 C. B. N. S. 452. An act of bankruptcy after seizure, under execution issued bona fide, but before sale, will not invalidate execution under 12 & 13 Vict. c. 106, s. 133. Edwards v. Scarsbrook, cxiii. 280 ; 3 B. & S. 280. Where money is advanced upon specific lot of timber, it will constitute a charge in equity, and assignee of bankrupt owner of timber cannot recover in trover. Langton v. Waring, cxiv. 315 ; 18 C. B. N. S. 315. X. Actions by assignee. A. agreed to build ship for B. and if not completed according to terms, B. should take possession and himself complete using such materials of A. as should be applicable, and B. afterward took possession, assorted A.'s material, put some of it within ship, but did not attach, held not using the materials and that A.'s assignees in bankruptcy could recover. Baker v. Gray, lxxxiv. 462 ; 17 C. B. 462. Where A., creditor of B., bought goods atB.'s auction and took them away without payment or consent, and B.'s assignees afterward demanded amount, held that he was liable in trover but in contract might plead set-off. Holmes v. Tutton, lxxxv. 65 ; 5 E. & B. 65. Money of defaulting member of stock exchange paid over before adjudication in bankruptcy by assignee appointed under their rules, in settlement of his ac- counts with other members, cannot be recovered from such assignee by the assignees in bankruptcy even if fraudulent preference. Nicholson v. Gooch, lxxxv. 999 ; 5 E. & B. 999. Money derived from transactions not bona fide sales of atock, but settlement of differences distributed after adjudication among creditor members, not reco- verable. Ibid. Where one of the parties to a reference 'oi mutual claims to arbitration became bankrupt and the assignees brought a fresh suit, court refused to stay them. Pennell v. Walker, lxxxvi. 651 ; 18 C. B. 651. The plaintiff cannot be interrogated under Common Law Procedure Act as to what acts of bankruptcy he intends to rely upon. Edwards v. "Wakefield, lxxxviii. 462 ; 6 E. & B. 462. Assignees may recover machinery attached to the freehold for purposes of trade conveyed by bill of sale not registered under 17 & 18 Vict. c. 36. Water- fall v. Penistone, lxxxviii. 876 ; 6 E. & B. 876. An instrument which operates first as a bill of sale of the machinery distinct from the land, and second as a mortgage upon the land and machinery, must be registered under that statute. Ibid. No defence that suit brought without first obtaining leave of the court. Lee w."Sangster, lxxxix. 1 ; 2 C. B. N. S. 1. Nor. that name of assignee used without his consent. Ibid. Advancing costs to an attorney upon an understanding that in the event of his obtaining costs by decree they shall be returned, is a good consideration and the right to recover passes to assignees in bankruptcv. Morgan v. Taylor, xciv. 653 ; 5 C. B. N. S. 653. " Where policy of life insurance is avoided by suicide unless a third party have acquired a bona fide interest by assignment for a valuable consideration or as eecurity, assignees in bankruptcy are not within the exception. Jackson v. Fors- ter, cii. 463; 1 E. &E. 463. Under 1 & 2 Vict. c. 110 ; s. 59, assignees cannot recover in trover, property sold by a creditor under a judgment confessed by bankrupt. Young v. Billiter, cvii. 736 ; 3 E. & E. (H. of L.) 736. Reversing s. c, cxxxviii. 1 ; 6 E. & B. 1. The transaction is only fraudulent and void as to the assignee. Ibid. Quwre, whether the assignee could recover in an action for money had and received. Ibid. BANKRUPTCY, X.— XIII. 61 Assignees under second proceeding against uncertificated bankrupt, can re- cover after-acquired property, except as against first assignees. Morgan v. Knight, cix. 669 ; 15 C. B. N. S. 669. Trustees under deed of arrangement under Act 1861, s. 197, after bankruptcy proceedings, can recover property obtained by creditor from debtor, with notice of previous act of bankruptcy. Topping v. Keysell, cxi. 258 ; 16 0. B. N. S. 258. Assignees cannot recover property conveyed bona fide under pressure, by bill of sale and possession taken. Shrubsole ».' Sussams, cxi. 452 : 16 C. B. N. S. 452. Trover does not lie for goods upon which the creditor has a valid charge. Langton v. Waring, cxiv. 315 ; 18 0. B. N. S. 315. Trade assignee can recover from official assignee, contributions for cost of action, brought with the assent of the latter. Bevan v. Whitmore, Ex. Ch. (af- firming ibid. cix. 433 ; 15 C. B. N. S. 433) cxv. 763; 19 C. B. N. S. 763. XI. Set-off. A claim for unliquidated damages arising out of same contract, may be set off in suit by assignees. Makeham v. Crow, cix. 847 ; 15 C. B; N. S. 847. Law of Scotland, that balance only can be recovered where there are mutual debts will be followed in suit by Scotch bankrupt's trustee in England. Macfar- lan v. Norris, ex. 783 ; 2 B. & S. 783. Set-off allowed of cross judgments, even where the bankrupt as holder of the first judgment, had commenced proceedings before the entry of the second judg- ment. Alliance Bank v. Holford,' cxi. 460 ; 16 C. B. N. S. 460. XII. Actions against assignee. Vendor having put part of a heap of barley, partially paid for, into the sacks of the vendee, and having after bankruptcy poured the contents back into the heap, the assignee who removed the whole liable in trover. Aldridge v. John- son, xc. 885 ; 7 E. & B. 885. Trade assignee not personally liable to messenger for work, unless there be an express contract. Stubbs v. Twynam, xcvii. 719 ; 7 C. B. N. S. 719. XIII. Action against bankrupt. Bankruptcy no defence to action on agreement to restore leased premises to their original state. Maples v. Pepper, lxxxvi. 177 ; 18 C. B. 177. Proof of the unsecured part of a debt is not an election to take the benefit of the petition for the whole debt. Elder v. Beaumont, xcii. 353 ; 8 E. & B. 353. A bill in consideration of allowing bankrupt's certificate accepted in blank by the bankrupt before, but not drawn or dated until after the certificate, is not a void security within s. 202 of 12 & 13 Vict. c. 106, Goldsmid v. Hampton, xciv. 94 ; 5 0. B. N". S. 94. Registering a judgment under 1 & 2 Vict. c. 110, s. 13, is not process within I 211 of 12 & 13 Vict. c. 106. Fluester v. McClelland, xcviii. 357 ; 8 C. B. N. S. 357. The court refused to stay proceedings on a judgment on the ground that an in- terim order of protection had been obtained from the commissioner in bankruptcy. Naylor v. Mortimore, c. 566 ; 10 0. B. N. S. 566. A detainer under ca. sa. moved after withdrawal of protection under 12 & 13 Vict. c. 106, s. 257, held good when arrest by same party would have been valid. Bateman v. Freston, cvii. 578 ; 3 E. & E. 578. Unless first arrest is by collusion with detaining party or by wrongful act of sheriff. Ibid. _ Sed qucere, see Ex parte Freston, 30 L. J. N. S. Ch. 460, when Freston was. discharged by Court of Chancery on habeas corpus. Ibid p. 588 n. (a). A composition deed under 24 & 25 Vict. c. 1 34, containing a release is plead- able in bar to an action by a non-assenting creditor. Whitehead v. Porter, cxvii. 193 ; 5 B. & S. 193. A deed, whose effect is that each executing creditor releases his own separate debt in furtherance of an agreement with the intent that the debts of the non- G2 BANKRUPTCY, XIII.— XIV. assenting creditors should be released, operates as a release of the debts of all. Ibid. XIV. Effect of discharge. Plea of discharge in bankruptcy no answer to action for breach of covenant to keep up premiums on policy of insurance. Warburg v. Tucker, lxxxv. 384 ; 5 E. & B. 384. In suit against maker of promissory note endorsed by John Jackson Lee, to plaintiff, plea by defendant of discharge is not supported by proof of entry on schedules of a bond to James Jackson Lee, without naming endorsee at all. Fin- ney v. Lord Brownlow Cecil, lxxxvii. 117; 1 C. B. N. S. 117. Certificate under sect. 221 of Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, is a discharge, though a creditor refuses the composition. Tindall v. Hib- berd, lxxxix. 199 ; 2 C. B. N. S. 199. Discharge of one who is shareholder in a joint stock company prevents execu- tion against him for a debt of the company. Thomson v. Harding, xci. 254; 3 C. B. N. S. 254. A continuing guaranty which the guarantor may determine by notice is a con- tingent liability within sect. 178 of 12 & 13 Vict. c. 106. Boyd v. Robins, xciii, 749 ; 4 C. B. N. S. 749. Reversed in Exchequer Chamber, xciv. 597 ; 5 C. B. N. S. 597. A plea of discharge in bankruptcy after the deed and before breach is no an- swer to an action for breach of covenant to keep up the premiums on a policy of life insurance. "Warburg ».' Tucker, xcvi. 914 ; E., B. & E. 914. It appearing on the face of a bond to secure an annuity that one of the joint obligors is a surety only, his discharge in bankruptcy is no defence to a claim for subsequent unpaid arrears. White v. Corbett, xcvi. 1103 ; E., B. & E. 1103. Bankruptcy during current quarter and certificate are no bar to schoolmaster's claim for board and tuition of bankrupt's son upon a quarterly contract. Hop- kins v. Thomas, xcvii. 711 ; 7 C. B. N. S. 711. Relieves from a bill of exchange which the debtor in good faith misdescribed in schedule as to amount and date, and though he did not name endorsee. Booth v. Coldman, cii. 414 ; 1 E. & E. 414. Where an absolute covenant to pay a sum certain was misdescribed as a lia- bility for a deficiency that might arise, the discharge is no bar. Franklin v. Beesley, cii. 425 ; 1 E. & E. 425. On a joint and several bond of A. and B. to pay an annuity, containing also a joint and several covenant to pay, but reciting that A. is surety for B., A. is a surety only and a discharge in bankruptcy is no bar. White v. Corbett, cii. 692 ; 1 E. & E. 692. Certificate of discharge under 1 2 & 13 Vict. c. 106, s. 221, in proceedings under composition not binding unless composition carried out. Naylor v. Mortimore, cxii. 207 ; 17 C. B. N. S. 207. Claims of surety of premiums of policy of insurance in Juturo being provable under 24 & 25 Vict. c. 134, s. 154, will be barred by discharge. Saunders v. Best, cxii. 731; 17 C. B.N. S. 731. Liability upon a call for shares, is not such a claim, " payable upon a contin- gency" under 12 & 13 Vict. u. 106, s. 178. as to be barred when not due at time of petition. General Discount Co. v. Stokes, cxii. 765 ; 17 C. B. N. S. 765. When the liability to pay depends upon several contingencies, not upon one, it is not within the act. Ibid. Bankruptcy and certificate do not discharge from covenant to pay premiums on life policy, it not being a debt to pay on contingency within 12 & 13 Vict. c. 106, s. 178. Mitcalfe v. Hanson, cxiii. 975 ; 3 B. & S. 975. Under Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, s. 145, there must be a giving up of the lease or agreement, or a statement that it is lost or destroyed, to discharge a bankrupt lessee from covenants in the lease. Colles o. Evanson, cxv. 372 ; 19 0. B. N, S. 372. Under 12 & 13 Vict. c. 106, s. 145, a declination of lease by assignees, a tender of deed of surrender to the lessor executed within fourteen days afternotice of that fact, and an offer to surrender the premises will not discharge bankrupt from covenants in lease. Ibid. BANKRUPTCY, XIV.— XV. 63 XV. Composition deed. A deed of arrangement under sect. 224 of 12 & 13 Vict. c. 106, executed by sis-sevenths in number and value of the creditors, containing a covenant by each creditor party to or bound by the deed not to sue, and a clause that if any creditor by whom or on whose behalf the deed should have been actually executed should break the covenant, defendant should be discharged from his claim, does not apply as to the latter clause to plaintiff who did not execute the deed. Legg v. Cheose- brough, xciv. 741 ; 5 C. B. N. S. 741. A composition deed which makes an action by a creditor, whether ho has signed it or not a forfeiture of the debt, but which permits an action by leave of the inspectors, is invalid. Gardner v. Chapman, xcviii. 317 ; 8 C. B. N. S. 317. Under 12 & 13 Viet. c. 106 a deed is void which is made with joint creditors only and distributes among them the separate and joint assets. Leonard v. Sheard, cii. 667 ; 1 E. & E. 667. A deed excluding from its benefits all creditors not executing within a certain time is not within 24 & 25 Vict. c. 134, s. 192. Berridge v. Abbott, cvi. 507 ; 13 C. B. N. S. 507. Composition deed containing, inter alia, covenant making each creditor liable for acts of the rest and costs, &c, unreasonable and void under 24 & 25 Vict. c. 134, s. 192. Inglebach v. Nicholls, oviii. 85 ; 14 C. B. N. S. 85. Composition deed which excludes all creditors who do not execute within a given time void under 24 & 25 Vict. c. 134, s. 192. Copeman v. Hart, cviii. 91 ; 14 C.B.N. S. 91. Composition deed excluding expressly or impliedly sueh creditors as do not execute it, void under 24 & 25 Vict. c. 134, s. 182. llderton v. Castrique, cviii. 99; 14 C. B. N. S. 99. Deed not void under 12 & 13 Vict. c. 106,'which reserves necessary wearing apparel. Spitzer v. Chaffers, cviii. 686 ; 14 C. B. N. S. 686. Nor for necessary costs reserved. Ibid. Nor for lease at rack-rent of no value when there is a provision that it will be conveyed on demand to trustees. Ibid. Secured as well as unsecured creditor to be counted as to number and value, under Act 1861, s. 192. King v. Randall, cviii. 721 ; 14 C. B. N. S. 721. A deed, under 24 & 25 Vict. c. 134, s. 192, not on its face for the benefit of all the creditors is void. llderton v. Jewell, cxi. 142 ; 16 C. B. N. S. 142. In such case, bail is not discharged by a certificate of the filing under s. 198. Ibid. Deed of arrangement under Act 1861, s. 197, executed after the commence- ment of bankruptcy proceedings, relates back to act of bankruptcy. Topping v. Keysell, cxi. 258 ; 16 C. B. N. S. 258. A deed under 24 & 25 Vict. c. 134, s. 200, under schedule D., is not pleadable in bar to an action by a creditor signing it. Eyre v. Archer, cxi. 638 ; 16 C. B. N. S. 638. In composition deed under 24 & 25 Vict. c. 134, s. 192, in the schedule filed in pursuance of general order of May 22d 1862, names of all the creditors and the amount of debts secured and unsecured must appear. Turquand v. Moss, cxii. 15 ; 17 C. B. N. S. 15. Composition deed under 12 & 13 Vict. s. 221, when properly carried out so as to bar proceedings by creditor. Naylor v. Mortimore, cxii. 207 ; 17 C. B. N. S. 207. Creditor satisfied, cannot take advantage of deviation as to other creditors. Ibid. Under 24 & 25 Vict. c. 134, s. 192, a deed excluding non-assenting creditors from all benefits under it, is void. Killby v. Wright, cxiv. 272; 18 C. B. N. S. 272. A plea setting forth deed of composition with person living abroad, under 24 & 25 Vict c. 134, s. 192, and not alleging payment or tender of the composition, is bad. Fessard v. Mugnier, cxiv. 286 ; 18 C. B. N. S. 286. A provision in a trust deed under 24 & 25 Vict. c. 134, s. 192, permitting trustees to prescribe manner of proving debt, is unreasonable and void as against non-assenting creditor. Coles v. Turner, cxiv. 736 ; 18 C. B. N. S. 736. In a composition deed, under 24 & 25 Vict. c. 134, s. 192, a clause declaring 64 BANKRUPTCY, XV. the debt forfeited, after debtor is sued, is void as to non-assenting creditors. Lync v. Wyatt, cxiv. 593 ; 18 C. B. N. S. 593. Deed of arrangement, under 24 & 25 Viet. c. 134, s. 192, containing unreason- able provisions not binding on non-executing creditor. Leigh v. Pendlebury, cix. 81.5; 15 C. B. N. S. 815. Certain provisions in deed held unreasonable. Ibid. Where by deed of arrangement under 24 & 25 Vict. c. 106, s. 192, creditors agree not to sue within a limited time, it is a limited covenant and will not operate as a release. Ray v. Jones, cxv. 416 ; 19 0. B. N. S. 416. A composition deed under 24 & 25 Vict. c. 134, s. 192, void on debtor becom- ing bankrupt, is voidable at the election of the creditors only. Hughes v. Palmer, cxv. 393 ; 19 C. B. N. S. 393. And the creditors can enforce it against the sureties after the debtor has be- come bankrupt. Ibid. A composition deed, under 24 & 25 Vict. c. 134, s. 192, good in other respects, containing recital amounting to a covenant to pay composition, is binding on the creditors. Lay v. Mottram, cxv. 479 ; 19 C. B. N. S. 479. Stipulation in composition deed under Bankruptcy Act 1861, 24 & 25 Vict. c. 134, s. 192, giving too extensive power to the trustee, is unreasonable. Bromp- ton Waterworks v. Jennings, cxv. 149 ; 19 C. B. N. S. 149. Such a stipulation is not binding on a non-assenting creditor. Ibid. Under 24 & 25 Vict. c. 134, s. 192, where a majority in number representing three-fourths in value of the creditors assent to a deed of composition, it is bind- ing on all. Clapham, v. Atkinson, cxvi. 722 ; 4 B. & S. 722. And that the deed allowed debtor the option of paying the composition to some, and of leaving others liberty to recover their debts in full, made no differ- ence. Ibid. And such deed is good where there is no cessio bonorum. Ibid. Composition deed, under 24 & 25 Vict. c. 134, s. 192, securing a composition to the creditors upon the execution of the deed, held binding upon all when duly executed by majority in number and three-fourths in value of the creditors and a good deed. Per Blackburn. J., and Mellor, J. Dingwall v. Edwards, cxvi. 738 ; 4 B. & S. 738. But, per Cockburn, C. J., and Crompton, J., that the deed was bad as excluding from the benefit of it those creditors not executing it. Ibid. Giving time, by deed of arrangement, under Bankruptcy Law Consolidation Act 1849, will discharge, on equitable defence, accommodation acceptor. Bailey v. Edwards, cxvi. 761 ; 4 B. & S. 761. Where one of the creditors becoming a surety has a covenant from the debtor to pay his instalments and the other creditors are only to receive their instalments through a trustee on demand in writing, the difference is not such as to invalidate the deed. Wells v. Hacon, cxvii, 196 ; 5 B. & S. 196. A clause in a composition deed, rendering a creditor who had taken a bill of exchange from the debtor liable to indemnify him, is unreasonable and invalidates the deed as to one who had taken no such bill. Balden v. Pell, cxvii. 213 ; 5 B. &S. 213. A deed amounting to an accord and satisfaction, in consideration of the debtor agreeing to carry on his profession and pay half of his income to a trustee for the creditors until the agreed composition be paid, is valid. Keyes v. Elkins, cxvii. 240 ; 5 B. & S. 240. Though it contain a provision reserving remedies against the sureties of the debtor. Ibid. The sheriff is not liable in an action for an escape on the discharge of a debtor taken on a ca. sa., on the production by him of a certificate under sect. 198 of 24 & 25 Vict. c. 134, signed by the registrar in bankruptcy, to the effect that a com- position deed has been duly registered though the deed is invalid. Lloyd v. Harrison, cxviii. 36 ; 6 B. & S. 36. A composition deed which does not contain a release from the creditors, is no bar to a subsequent action. Jones v. Morris, cxviii. 198 ; 6 B. & S. 198. A release in a composition deed does not extend to a co-debtor. Andrew r. Mackliii,_ cxviii. 201 ; 6 B. & S. 201. Pi'ovision in a deed, that the inspectors should retain a sufficient sum for the payment of dividends to non-assenting creditors, to be paid upon their request BANKRUPTCY, XV.— XVII. 65 in writing, is not unreasonable. Ilernulewicz v. Jay, cxviii. COT ; C B. & S. 097. A composition deed executed by a firm for the benefit of its creditors, is no bar to an action against one of its members for an individual debt. E. C. Railway Co. v. Westall, cxviii. 970 ; 6 B. & 8. 970. The general terms of a release in a composition deed may be restrained by other parts. Haselgrove v. House, cxviii. 975 ; 6 B. & S. 975. A deed in which defendant covenants to pay a composition to certain persons named in the schedule, is no bar to a claim which he omitted to insert. Buvelot v. Mills, cxviii. 986 ; B. & S. 986. XVI. Criminal proceedings. Want of certainty in indictment under Bankruptcy Act 1861, 24 & 25 Yict. c. 134, s. 221, is cured after verdict by 7 Geo. 4, c. 64, s. 21. Nash v. The Queen, cxvi. 935 ; 4 B. & S. 935. Indictment against bankrupt for neglect to discover all his property, under 24 & 25 Vict. c. 134, s. 221. Ibid. After verdict the fact that two different offences are charged in indictment, under 24 & 25 Vict. c. 134, s. 221, would make no difference. Ibid. XVII. Other matters relating to. Bankruptcy of landlord no defence to his suit for rent where he had no benefi- cial interest. Houghton v. Koenig, Ixxxvi. 235 ; 18 C. B. 235. Under 12 & 13 Vict. c. 106, plaintiff who recovers less than the sum named in his affidavit, not bound for costs if he had reasonable cause to claim the larger amount. Gilbert v. Crosier, lxxxvii. 632 ; 1 C. B. N. S. 632. Regard had to circumstances and the law, not to the motive of the party in determining whether plaintiff liable to costs for commencing proceedings under Bankrupt Consolidation Act without cause. Hope v. Fenner, lxxxix. 387 ; 2 C. B. N. S. 387. Defendant entitled to costs where plaintiff filed an affidavit stating the debt to be the whole amount of a special contract for work, he having been discharged before its completion and getting a, verdict for much less. Pratt v. Goswell, xcix. 706 ; 9 C. B. N. S. 706. Section 166 of 24 & 25 Vict. c. 134, is not retrospective, and a bill given in violation of s. 202 of 12 & 13 Vict. c. 106, is void in the hands of a bona fide holder for value, though when it was endorsed and came due that section, had been repealed. Reed v. Wiggins, cvi. 220; 13 C. B. N. S. 220. Bail for appearance of debtor in Mayor's Court not discharged by certificate under void deed given under Act 1861, s. 198. Ilderton v. Jewell, cviii. 665 ; 14 C. B. N. S. 665. Sheriff, who prepares for sale under fi. fa., after being notified of act of bank- ruptcy, not entitled to costs for it. Searle v. Blaise, cviii. 856 ; 14 C. B. N. S. 856. The provisions in the exception to 19 & 20 Vict. c. 79, s. 47 (Scotch Bankruptcy Act), are co-extensive with protection granted in this section of the act, and extend to the whole united kingdom. Button v. Hally, ex. 748 ; 2 B. & S. 748. Money paid into court under judge's order not a security for a debt within 12 & 13 Vict. c. 106, s. 184. Murray v. Arnold, cxiii. 287 ; 3 B. & S. 287. Jurisdiction under 24 & 25 Vict. c. 134, ss. 94, 98, 99, of county courts, in case of proceeding in bankruptcy by one in goal. Ex parte Coombs, cxlii. 296 ; 3 B. & S. 296. When a composition deed under 24 & 25 Vict. c. 134, s. 192, has not been car- ried out, leave to issue execution, under s. 198, must be asked from the court of bankruptcy. Skilton v. Symonds, cxiv. 418 ; 18 C. B. N. S. 418. When a deed of inspectorship is executed before judgment, under Bankruptcy Act 24 & 25 Vict. c. 134, no execution can be issued thereon without leave of the court. Hartley v. Mare, cxv. 85 ; 19 C. B. N. S. 85. Deed of arrangement under 24 & 25 Vict. c. 134, s. 192, will not be a bar to action by accommodation exceptor against drawer of bill of exchange not due at time of deed. Mare v. Underbill, cxvi. 566 ; 4 B. & S. 566. Vol. III.— 5 6Q BASTAKDY. BATHING. BASTAKDY. Service of summons in bastardy case upon putative father in Scotland insuffi- cient. Regina v. Lightfoot, lxxxviii. 822 ; 6 E. & B. 822. Order drawn as if contested summons, when in fact defendant was served but did not appear, may be amended. Regina v. Higham, xc. 557 ; 7 E. & B. 557. The residence of the applicant being assumed at the hearing without being shown, the order may be amended. Ibid. Summons to putative father under 7 & 8 Vict. c. 101, need not issue immedi- ately upon the application. Potts v. Cumbridge, xcii. 847 ; 8 E. & B. 847. Agreement by a mother to take charge of, and supply, with necessaries, her illegitimate children, is a sufficient consideration for a promise by the father to pay an annuity. Smith v. Roche, xcv. 223 ; 6 C. B. N. S. 223. And the death of one of the children does not relieve him. Ibid. Where summons under 7 & 8 Vict. c. 101 is issued but cannot be served be- cause putative father has absconded, and then the justice dies; a summons issued beyond the twelve months before another justice is invalid. Regina v. Pickford, ci. 77 ; 1 B. & S. 77. A marriage within the prohibited degrees is void though one of the parties 'illegitimate. Regina v. Brighton, ci. 447 ; 1 B. & S. 447. Jurisdiction of magistrate under 7 & 8 Vict. c. 101, is not ousted by an agree- ment of mother to release putative father. Follit v. Koetzow, cv. 730 : 2 E. & E. 730. An arrest by police constable under bastardy order, having no warrant in pos- session, is illegal. Galliard v. Laxton, ex. 363 ; 2 B. & S. 363. In appeal to Quarter Sessions from bastardy order, under 7 & 8 Vict. c. 101, s. 4, time of appeal runs from adjudication of justices. Ex parte Johnson, cxiii. 947 ; 3 B. & S. 947. After the death of the mother, there is no obligation upon the personal repre- sentatives to support a bastard child of decedent. Ruttinger v. Temple, cxvi. 491 ; 4 B. & S. 491. BATHING. The usage of bathing along the shore gives no right to place bathing-machines on private property for that purpose. Mace v. Philcox, cix. 600 ; 15 C. B. N. S. 600. The provisions of 11 & 12 Vict. c. 89, s. 69, and local act 2 Wm. 4, c. 91, ss. 71, 77, do not give this right. Ibid. They are only for the observance of decency and propriety. Ibid. BILLS OF EXCHANGE, I. (a), (6), (c), (d). 67 BILLS OF EXCHANGE AND PROMISSORY NOTES. I. Form and obligation generally. (b) Payment of cheeks and (a) What is a bill of exchange. bi^ls. ( b) What is a promissory note. (c) Liability and duty in other Ic) Parties to. respects. (d) Other matters relating to. (d) Other matters. II. Alteration of. XI. Consideration. III. The stamp. (a) Illegal consideration. IV. The acceptance. (b) Want of consideration gen- V. Acceptance supra protest. erally. VI. Transfer. (c) Accommodation paper. VII. Presentment for payment. (d) Proof of consideration. a) Generally. XII. Release of parties to bill or note. (&j Time within which bills, (a) Giving time notes, and checks, must (6) How acceptor or maker dis- be presented. charged, (c) Place at which presentment XIII. Proceedings upon, must be made. (a) Who may sue. VIII. Payment. (b) Recovery where bill or note IX. Notice of dishonor. lost or stolen. (a) Who entitled to notice. (c) Trover for lost or stolen (&) Due diligence in giving no- note. tice. (d) Who may be sued. (c) Proof of notice of dishonor. (e) Pleadings. (d) How want of notice ex- (/) Evidence, cused. lg) Amount recoverable. X. Bankers. [h] When party may resort to (a) Liability where taking lost original consideration, or stolen note. XIV. Other matters. I. Form and obligation generally. (a) What is a Bill oj Exchange. Instrument drawn, " payable to the treasurer for the time being" of a benevo- lent institution, is not- a valid bill. Yates v. Nash, xcviii. 581 ; 8 C. B. N. S. 581. An instrument in form, "four months after date, pay to my order, &c," with- out date or drawer's name, addressed to defendant and accepted by him, is neither bill of exchange nor promissory note. McCall v. Taylor, cxv. 301 ; 19 C. B. N. S. 301. (6) What is a Promissory Note. Promise to pay to a person to be ascertained in future, is not a promissory note. Cowie v. Stirling, Ixxxviii. 333 ; 6 E. & B. 333. The words added, " as per memorandum of agreement," do not destroy the negotiability of a promissory note. Jury v. Barker, xcvi. 459 ; E., B. & E. 459. A paper in the form of a bill, in the handwriting of the acceptor and ad- dressed to the payee, good as a promissory note against acceptor. Fielder v. Marshall, xcix. 606 ; 9 C. B. N. S. 606. An instrument, " four months after date, pay to my order, &c," without date or drawer's name, addressed to defendant and accepted by him, is neither bill of exchange nor promissory note. McCall v. Taylor, cxv. 301 ; 19 C. B. N. S. 301. (c) Parties to. The backing by B. of a note to the order of A. does not imply an authority to A. to write his name above that of B., so as to make him liable as endorser. Lecaan v. Kirkman, xcv. 929 ; 6 C. B. N. S. 929. {d) Other matters relating to. Semhle, that it cannot be shown by parol that contract of party to promissory note was one ol suretyship. Strong v. Foster, Ixxxiv. 201 ; 17 C. B. 201. 68 BILLS OF EXCHANGE, I.— VI. A wager is not an illegal but a void consideration of promissory note. Fitch v. Jones, lxxxv. 238 ; 5 E. & B. 238. Proof of want of consideration for endorsement of such note rests on defend- ant. Ibid. A post-dated check, drawn to order, is not within 55 Geo. 3, c. 184, s. 13, or 21 & 22 Vict. c. 20, s. 1, and not void. Whistler v. Forster, cviii. 248 ; 14 C. B. N. S. 248. II. Alteration or. Addition of another party to a joint and several note, of which defendant one of the makers, after it was perfected, is material alteration. Gardner v. Walsh, lxxxv. 83; 5E. & B. 83. III. The stamp. A post-dated check, drawn to order, comes within the law relating to bills of exchange and is properly stamped as such. Whistler v. Forster, cviii. 248 ; 14 C. B. N. S. 248. Any objection founded on the stamp acts must be that the instrument does not bear the stamp which according to its purport it should bear. Austin v. Bunyard, cxviii. 687 ; 6 B. & S. 687. Counsel may call attention to the insufficiency of a stamp. Ibid. IV. The acceptance. Drawee who accepts, accepts personally, unless there is distinct disclaimer on the face of the bill. Mare v. Charles, lxxxv. 978 ; 5 E. & B. 978. " Accepted payable on giving up" a certain bill of lading is conditional upon the surrender of the bill of lading, but not its surrender on the day of the matu- rity of the bill of exchange. Smith v. Vertue, xcix. 214 ; 9 C. B. N. S. 214. The acceptor is entitled to contribution from the endorser where both give the bill for the accommodation of a third party. Reynolds v. Wheeler, c. 561 ; 10 C. B. N. S. 561. The acceptance of a bill "per procuration" is notice that acceptor has only limited authority to accept. Stagg v. Elliott, civ. 371 ; 12 C. B. N. S. 371. An agreement to accept a bill is not binding unless communicated to the person who is to receive the bill and who is thereby induced to take it. Nicholson v. llicketts, cv. 497 ; 2 E. & E. 497. Acceptor for valuable consideration of bill drawn and endorsed in name of one not living, having knowledge of the fact, is estopped from setting up that drawer was not living. Ashpitel v. Bryan, cxiii. 474 ; 3 B. & S. 474. The acceptance of a bill of exchange to be taken for part of the freight, will divest the lien of owner to that extent. Tamvaco v. Simpson, cxv. 453; 19 C. B. N. S. 453. V. Acceptance supra protest. Acceptor for honor endorsing bill is estopped from denying validity of bill, or setting up that payee is a fictitious person. Phillips v. Im Thurn, cxiv. 694 ; 18 C.Iks. 694: Nor can he allege ignorance at the time of acceptance. Ibid. The rule is the same as in the case of a drawer. Ibid. VI. Transfer. Endorser cannot deny validity of previous endorsements. Macgregor v. Rhodes, Ixxxviii. 266 ; 6 E. & B. 266. The holder of a bill endorsed in blank may hand it over to a third person to sue upon for him. Law v. Parnell, xcvii. 282 ; 7 C. B. N. S. 282. A check on a banker is a negotiable instrument and the endorser is liable to the holder. Keene v. Beard, xcviii. 372 ; 8 C. B. N. S. 372. A bill to A. or order is only transferable by endorsement and authority to endorse cannot be inferred from delivery for consideration with assurance of its payment. Harrop v. Fisher, c. 196 ; 10 C. B. N. S. 196. Holder of a bill payable to order obtains no better title by transfer, without endorsement, than the assignor had. Whistler v. Forster, cviii. 248 ; 14 C. B. N. S. 248. -M BILLS OF EXCHANGE, VI.— IX. (a), (jb), (c), (d). 69 If he have notice of fraud in obtaining instrument before endorsement to him he is affected with notice of it. Ibid. Before endorsement the rights are simply those of an assignee of a chose in action. Ibid. VII. Presentment for payment. (a) Generally. Neglect to present bill will discharge acceptor. Peacock v. Pursell, cviii. 728 : 14 C. B. N. S. 728. Qucere, whether the sending by mail of a check to drawee is a good present- ment. Bailey v. Bodenham, cxi. 288 ; 16 C. B. N. S. 288. (6) Time within which bills, notes and checks must be presented. As between drawer and holder of a check no time within six years is unrea- sonable unless loss is occasioned by the delay. Laws v. Band, xci. 442 : 3 C. B. N.S.442. A country banker receiving a check on another country banker in another town has until the next day to transmit it for presentment. Hare v. Henty, c. 65; 10 C.B.N. S. 65. A check delivered 9 p. m. is for practical business purposes delivered the next day. Firth v. Brooks, ci. 981 ; 1 B. & S. 981. What sufficient delay in presentment of check to exonerate drawer. Bailey v. Bodenham, cxi. 288 ; 16 C. B. N. S. 288. The drawer must show that he has been damnified by the delay. Ibid. And that the check would have been paid if presented in due time. Ibid. (c) Place at which presentment must be made. A bill accepted payable at a particular place must be presented there, though addressed to acceptor at another place. Saul v. Jones, cii. 59 ; 1 E. & E. 59. And in a suit against endorser want of presentment for payment is not ex- cused by fact that acceptor had no funds there. Ibid. Memorandum at foot of check of agent's name and address does not make a check payable at that place. Bailey v. Bodenham, cxi. 288 ; 16 C. B. N. S. 288. VIII. Payment. The banker having put the money for a check on the counter, and the payee taken it up, the payment is complete though the counting not finished. Cham- bers v. Miller, cvi. 125 ; 13 C. B. N. S. 125. Where cheek was issued by third party upon a condition to be performed by payee, but of which holder was not informed, money had and received will not lie by drawer against holder who had obtained payment. Watson v. Russell, cxiii. 34 ; 3 B. & S. 34. In such case there is no privity of contract. Ibid. IX. Notice op dishonor. (a) Who entitled to notice. One who endorses as surety, a bill for raising money for a company, in which both he and the holder are shareholders, is entitled to notice of dishonor. Mal- tass v. Siddle, xcv. 494 ; 6 C. B. N. S. 494. (6) Due diligence in giving notice. What sufficient delay in giving notice of dishonor of check, to excuse drawer. Bailey v. Bodenham, cxi. 288 ; 16 C. B. N. S. 288. (c) Proof of notice or dishonor. A promise to pay bill of exchange after maturity, is evidence of due notice of dishonor. Cordery v. Colvin, cviii. 373 ; 14 C. B. N. S. 373. When no due notice of dishonor had been given, but drawer was afterwards so informed and promised to pay the amount, it is sufficient. Killby v. Bochussen, cxiv. 357 ; 18 C. B. N. S. 357. (d) Want of notice, how excused. A letter from the endorser saying " had circumstances been different you may 70 BILLS OF EXCHANGE, IX. (d)— XI. (a), (5). rest assured no application would have been needed," is no evidence of waiver. Lecaan v. Kirkman, xcv. 929 ; 6 C. B. N. S. 929. Promise to pay after maturity, evidence of waiver of notice. Cordery v. Colvin, cviii. 373 ; 14 C. B. N. S. 373. Admission of liability is evidence of waiver of right to notice of dishonor. Woods v. Dean, cxiii. 101 ; 3 B. & S. 101. It seems that such evidence is not conclusive. Ibid. Where drawer of bill of exchange has promised to pay, although notice of dis- honor not given in due time, it is a waiver. Killby v. Rochussen, cxiv. 357 ; IS C. B. N. S. 357. X. Bankers. (a) Liability where taking lost ok stolen note. One who takes a stolen negotiable instrument bona fide and for value is entitled to recover on it though negligent in availing himself of means of knowledge of bad title. Raphael v. Bank of England, Ixxxiv. 161 ; 17 C. B. 161. (6) Payment oj? checks and bills. Question on check crossed with name of banker is the bona fides of the holder. Carlon v. Ireland, lxxxv. 765 ; 5 E. & B. 765. Where a bank had separate branches in different places, one of which paid a check on a balance in the other which was withdrawn before check could without laches be sent, held it could recover from payee. Woodland v. Fear, xc. 519 ; 7E. &B. 519. A check on a banker is a negotiable instrument and the endorser is liable to the holder. Keene v. Beard, xcviii. 372 ; 8 C. B. N. S. 372. The banker having put the money for a check on the counter and the payee having taken it up, the payment is complete though the counting not finished. Chambers v. Miller, cvi. 125 ; 13 G. B. N. S. 125. (c) Liability and duty in other respects. Banker justified in paying a crossed check to one not a banker, the crossing having been obliterated. Simmons v. Taylor, lxxxix. 528 ; 2 C. B. N. S. 528 ; affirmed in Ex. Ch. xciii. 463 ; 4 C. B. N. S. 463. A country banker receiving a check on another country banker in another town has until the next day to transmit it for presentment. Hare v. Henty, c. 65 ; 10 C. B. N. S. 65. (cZ) Other matters. Where a bank pledgee was sued in trover the court ordered the pledgor to be substituted as defendant. Roberts v. Bell, xc. 323 ; 7 E. & B. 323. When half of bank note sent in payment, other half to follow, title to note re- mains in sender. Smith v. Mundy, cvii. 22 ; 3 E. & E. 22. The payment is conditional and inchoate, and therefore revocable. Ibid. XI. Consideration. (a) Illegal consideration. Defendant gave I. 0. U. for stakes lost at billiards ; held gaming within 8 & 9 Vict. c. 109, s. 18, and not contribution within proviso. Parsons v. Alexander, lxxxv. 263 ; 5 E. & B. 263. A bill in consideration of allowing bankrupt's certificate accepted in blank by the bankrupt before, but not drawn or dated until after the certificate, is not a void security within s. 202 of 12 & 13 Vict. c. 106. Goldsmid v. Hampton, xciv. 93 ; 5 C. B. N. S. 94. Note given to creditor to induce him to sign composition deed, consideration illegal. _ Clay v. Ray, cxii. 188 ; 17 C. B. N. S. 188. Promissory note in consideration of forbearance to prosecute charge of obtain- ing money under false pretences is illegal. Clubb v. Hutson, cxiv. 414 : 18 C. B. N. S. 414. (6) Want of consideration generally. In order to make future services good consideration for a promissory note there must have been a contract for them. Hulse v. Hulso, Ixxxiv. 711; 17 C. B. 711. Forbearance to a third person is a sufficient consideration though motive of BILLS OF EXCHANGE, XI. (J)— XII. (a), (J). 71 defendant based on a mistake. Balfour v. Lea Fire Life Assurance Co., xci. 300 ; 3 C. B. N. S. 300. A will of doubtful validity being in possession of A. it was arranged that it should be placed in the hands of B. upon C. giving a note to secure the legacy of A. and when the note should be paid the will to be given up to C. Held, a good consideration for the note. Smith v. Smith, cvi. 418 ; 13 C. B. N. S. 418. Party taking with notice of fraud before endorsement cannot recover. Whist- ler v. Forster, cviii. 248 ; 14 C. B. N. S. 248. Assignee of bill or note without endorsement, takes subject to all defences against assignor. Ibid. (c) Accommodation paper. Where there is no value or consideration for acceptance it is a good defence in action by drawer or person taking under him. Vanquelin v. Bouard, cix. 341, c. ; 15 C. B. N. S. 341 c. (d) Proof of consideration. Where bill sued upon was given plaintiff in lieu of another shown to be forged, onus of proving that he was bona fide holder for value rested on him. Mather v. Maidstone, lxxxvii. 273 ; 1 C. B. N. S. 273. Under ptea of one partner that he did not accept bill of exchange proof that the acceptance was by the other partner in fraud of the partnership articles will put the holder upon proof of consideration. Hogg v. Skeen, cxiv. 426 ; 18 C. B. N. S.426. XII. Release or parties to bill or note. (a) Giving time. Forbearance to one maker does not discharge another, who with knowledge of holder gave note as accommodation. Strong v. Foster, lxxxiv. 201 ; 17 C. B. 201. Good equitable defence by one maker of promissory note that he was surety for the other, of which holder had notice at time note was made, and that holder had given principal debtor time, preventing recovery. Pooley v. Harradine, xc. 431 ; 7 E. & B. 431. Semble, that the defence would be good if holder knew when he gave time that defendant was surety. Ibid. Agreement of endorsee with a stranger to give time to acceptor does not dis- charge maker. Frazer v. Jordan, xcii. 303 ; 8 E. & B. 303. In an action by payee of a joint and several promissory note, payable on demand against a maker, a plea that defendant had signed as accommodation maker with the following agreement written on note, " This note is to be paid off within three years from date," and that plaintiff had made no demand, and note had not been paid within three years, is a bad plea. Lawrence v. Walmsley, civ. 797 : 12 C. B. N. S. 797. Where a promissory note is signed by two, one being surety for the other, with the knowledge of the payee, but without any agreement to that effect between the payee and surety, time given the principal maker is a good defence in an ac- tion by payee against maker who was surety. Greenough v. McClelland, cv. 422; 2 E. & E. 422. Affirmed cv. 429 ; 2 E. & E. 429. A defence or equitable plea to suit against accommodation acceptor of bill of exchange, that time was given by deed of arrangement under Bankruptcy Act 1849, 12 & 13 Vict. c. 106, is good. Bailey v. Edwards, cxvi. 761 ; 4 B. & S. 761. The effect of such giving of time is similar to that in cases of sureties. Ibid. Qucere, whether giving time by deed of arrangement under Bankruptcy Act 1849, 12 & 13 Vict. c. 106, will discharge accommodation acceptor at law. Ibid. (&) HOW ACCEPTOR OR MAKER DISCHARGED. Set-off to maker, who was principal, arising after maturity of note, does not discharge other maker who was surety. Strong v. Foster, lxxxiv. 201 ■ 17 C. B. 201. Where an accommodation bill is accepted at request of a third party, who agrees to share any loss, such third party is not discharged by time given acceptor and drawer. Way v. Hearn, eiii. 774 ; 11 C. B. N. S. 774. 72 BILLS OF EXCHANGE, XII. (6)— XIII. (a)— (e). Where one of the makers of a promissory note, payable on demand, signs with a verbal agreement, that he is only to be responsible as surety and that payee will call in note and demand payment, his failure to do so is a good equitable defence against the payee. Lawrence v. Walmsley, civ. 799 ; 12 C. B. N. S. 799. Drawer not discharged as to accommodation acceptor by deed of arrangement in bankruptcy, under 24 & 25 Vict. c. 134, s. 192, executed during the running of the bill. Mare v. Underhill, cxvi. 566 ; 4 B. & S. 566. The acceptor of an accommodation bill is equitably discharged, if the holder, with knowledge that it is an accommodation bill, makes an agreement which pre- vents his suing the drawer. Ewin v. Lancaster, cxviii. 571 ; 6 B. & S. 571. XIII. Proceedings upon. (a) Wno may sue. Action lies on a joint and several promissory note made by the defendant and two others, one of whom is one of the plaintiffs. Beecham v. Smith, xcvi. 442 : E., B. & E. 442. The holder of a bill who has brought suit on it may transfer it to an endorsee so as to enable him to sue, though the endorsee had notice of the pendency of the prior action. Deuters v. Townsend, cxvii. 613 ; 5 B. & S. 613. (b) Recovery where bill or note lost or stolen. Where endorsee of bill of exchange in sets alleges loss in transmission for ac- ceptance, and demand for other sets from prior endorser not immediate as to him, and also alleges the non-delivery by said endorser and consequent loss, he cannot recover. Pinard v. Klockmann, cxiii. 388 ; 3 B. & S. 388. Such endorsee is bound to apply either to the drawer or his immediate endorser. Ibid. Non constat that if he had applied to them there would have been a loss. Ibid. (c) Trover for lost or stolen note. Question on check crossed with name of banker is bona fides of holder. Carlon v. Ireland, lxxxv. 765 ; 5 E. & B. 765. (d) Who may be sued. It may be shown by way of equitable defence that defendant was a surety •* knowledge of plaintiff, and that but for the latter's negligence the amount e< r with ; could have been obtained from the principal. Mutual Loan Fund Association v. Sud- low, xciv. 449 ; 5 C. B. N. S. 449. Acceptor who tears the bill in two parts, with the intention of destroying it, is liable to the bona fide holder obtaining it from the drawer, who fraudulently joined the pieces in such a way as to look as if the halves had been transmitted by mail. Ingham v. Primrose, xcvii. 82 ; 7 C. B. N. S. 82. One who takes from a partner in discharge of his individual debt the firm ac- ceptance is bound to show that he did so with the authority of the copartner. Leverson v. Lane, cvi. 278 ; 13 C. B. N. S. 278. The holder of a bill, which has been paid by drawer, cannot recover against the acceptor if it be an accommodation till with notice, or where supposing the holder to recover the full amount the state of things between the acceptor and the drawer is such that it would be contrary to justice to suppose the money- could be held in trust for the drawer. Cook v. Lister, cvi. 543 ; 13 0. B. N. S. 543. («) Pleadings. Plea that note improperly dated and that suit commenced before note due if it had been dated properly no equitable defence. Drain i\ Harvey, lxxxiv. 257 : 17 C. B. 257. ' A replication setting forth that names of endorsers were on the bill at time of acceptance not allowed, there having been pleas traversing endorsement and also that no such parties as endorsers were in existence, the matter being admissible under plea traversing the endorsement. Phillips c. Im Thurn, cxiv 400 ■ 18 C. B. N. S. 400. ' ' BILLS OF EXCHANGE, XIII— XIV. BILL OP LADING. 73 (f) Evidence. Acceptor for valuable consideration of bill drawn and endorsed in name of a person not living, with knowledge of acceptor, estopped from setting it up as de- fence. Ashpitel v. Bryan, cxiii. 474 ; 3 B. & S. 474. Under traverse of endorsement, evidence is admissible that the names of the endorsers were on the bill at time of acceptance. Phillips v. Im Thurn, cxiv. 400 ; 18 C. B. N. S. 400. Where bill is accepted by one partner in fraud of partnership articles as to other partner, holder must prove consideration. Horn; v. Skeen, oxiv. 426 ; 18 C. B. N. S. 426. (g) Amount recoverable. Where a bill drawn with interest at ten per cent, is dishonored by the acceptor the drawer is liable at that rate. Keene v. Keene, xci. 144 ; 3 C. B. N. S. 144. Plaintiff entitled to costs in a proceeding under 18 & 19 Vict. c. 67, though within the jurisdiction of the city court and he recover less than 201. Ilealey v. Johns, xcii. 946 ; 8 E. & B. 946. When a bill drawn and endorsed in England payable abroad is dishonored by acceptor's non-payment the holder can recover from endorser the amount of re- exchange and no more. Suse v. Pompe, xcviii. 538 ; 8 C. B. N. S. 538. A custom that he is entitled to recover either the re-exchange or the amount he paid for the bill is invalid. Ibid. (h) When party mat resort to original consideration. When there was evidence that drafts accepted by the defendant had been re- turned to him. Widders v. Gorton, lxxxvii. 576 ; 1 C. B. N. S. 576. Holder cannot sue for original consideration when there has been a failure to stamp foreign bill and a delay of a year. Poolcy v. Brown, ciii. 565 ; 11 C. B. N. S. 565. Endorsing over a bill of exchange given as collateral security does not prevent taking possession under a bill of sale. Bramwell v. Eglinton, cxvii. 39 ; 5 B. & S. 39. XIV. Other matters. Where by mistake, note at two months, dated January 1st 1854 instead of Jan- uary 1st 1855, and across face was written " due March 4th 1855," held, date was 1855, and memorandum was as if correction of the error. Fitch v. Jones, lxxxv. 238 ; 5 E. & B. 238. Where defendant was sued as acceptor of bill of exchange given in renewal of another bill on which his acceptance had been forged, but which he had in- spected and retained thirty days before notice to plaintiff, held no defence. Mather v. Maidstone, lxxxvi. 273 ; 18 C. B. 273. On a collateral contract to pay a certain sum per month as interest on a note, if it should not be met at maturity, payee who has endorsed note away cannot recover. Florence v. Drayson, lxxxvii. 584 ; 1 C. B. N. S. 584. In a suit on a collateral agreement to pay a certain monthly sum on the bill as interest, a prior suit on the bill in which a judgment was obtained for the principal but not interest, is a bar to recovery after the judgment but not before. Florence v. Jenings, Ixxxix. 454 -, 2 C. B. N. S. 454. A claim on a joint and several promissory note may be set off in a suit by one of the makers. Owen v. Wilkinson, xciv. 526 ; 5 C. B. N. S. 526. Bringing an action under 18 & 19 Vict. c. 67, does not relieve plaintiff from the penalty of losing costs when inferior court has jurisdiction, Harris v. Swinburn, cxvii. 370 ; 5 B, & S, 370. BILL OF LADING. Though it stipulates against accountability for leakage or breakage, owner is liable for such loss occasioned by gross negligence. Phillips v. Clark, Ixxxix. 156 ; 2 C. B. N. S. 156. Under 18 & 19 Vict. c. Ill, the rights and liabilities of aconsignee or endorsee of the bill of lading pass from him by endorsement over to a third person. Smurthwaite v. Wilkins, ciii. 841 ; 11 C. B. N. S. 841. 74 BILL OF LADING. BILL OF SALE. Where a cargo is purchased as " shipped as per bill of lading, dated September or October," the buyer is not entitled to rescind because cargo was not on board at date of bill of lading. Gattorno v. Adams, civ. 560 ; 12 C. B. N. S. 560. Receipt of bill of lading, which had been made out in accordance with defend- ant's directions, and keeping it for a year, is a delivery under s. 17 of Statute of Frauds, where goods have been shipped on a vessel selected by defendant. Currie v. Anderson, cv. 593 ; 2 B. & E. 593. Bill of lading not conclusive under 18 & 19 Vict. c. Ill, s. 3, as to goods men- tioned in it upon the owner of the vessel. Meyer v. Dresser, cxi. 646 ; 16 C. B. N. S. 646. But it is upon the master. Ibid. Clause against enemies applied to enemies of the sovereign of owner of the vessel. Russell v. Niemann, cxii. 163 ; 17 C. B. N. S. 163. Clause in bill of lading '' and other conditions as per charter-party," limited to conditions ejusdem generis previously mentioned, viz. payment of freight. Ibid. Bill of lading when construed as shipment on behalf of consignor and not of shipowner. Gumm v. Tyrie, cxvi. 680 ; 4 B. & S. 680. Effect of blank lines drawn in bill of lading. Ibid, BILL OF PARTICULARS. A repetition of the endorsement on the back of the writ with the date added is no compliance with an order for further particulars. Bayntun v. Satchell, lxxxiv. 383 ; 17 C. B. 383. Signed bill need only give reasonable information. Haigh v. Ousey, xc. 578 ; 7 E. & B. 578. Though some of the items bad it may be good as to the rest. Ibid. Bill is required in equitable plea under common law procedure act when mode of pleading is general. .Owen v. Nickson, cvii. 602 ; 3 E. & E. 602. In an action on a life insurance policy the plea having alleged an untrue an- swer by deceased, to a question as to health, and set up that he had symptoms of disease of the stomach, particulars as to the symptoms were required to be given. Marshall v. Emperor L. A. Society, cxviii. 886 ; 6 B. & S. 886. BILL OF SALE. The affidavit to a bill of sale required by 17 & 18 Tict. c. 36, is sufficient if it furnish reasonable proof of the execution and attestation, and of the residence and occupation of the attesting witness. Routh v. Roublot, cii. 850 ; 1 E. & E. 850. Not invalid under 17 & 18 Vict. c. 36, because the commissioner in the affida- vit describes himself as of the exchequer. Cheney v. Courtois, cvi. 634 ; 13 C. B. N. S. 634. _ What description of residence sufficient to accompany bill of sale under 18 & 19 Vict. c. 36, s. 1. Hewer v. Cox, cvii. 428 ; 3 E. & E. 428. A mistake made by adding wrong counts will not vitiate. Ibid. It is only necessary to give creditors reasonable knowledge of identity. Ibid. Bill of sale under pressure, made bona fide and possession taken, good as against assignees in bankruptcy. Shrubsole v. Sussams. cxi. 452 ; 16 C. B. N. S. 452. Bill of sale under 17 & 18 Vict. c. 36, s. 2, need not contain statement of any trust unless it affect its operation between grantor and grantee. Robinson v. Collingwood, cxii. 777 ; 17 C. B. N. S. 777. Where time of payment in bill of sale can be fixed by notice a reasonable time must be allowed. Brighty v. Norton, cxiii. 305 ; 3 B. & S. 305. A half hour is not reasonable time. Ibid. Assignee of personal chattels by bill of sale under 17 & 18 Vict. c. 36, s. 1 , if filed within twenty-one davs, has good title as against execution creditor. Mar- pies v. Hartley, cvii. 610 ; 3 E. & E. 610. Even though levy made before filing of bill of sale. Ibid. Endorsing over a bill of exchange given as collateral security does not prevent taking possession under a bill of sale. Bramwell v. Eglinton, cxvii. 39 ; 5 B. & S. 39." BOND, L— IV. BOND. I. Construction of condition. III. Official bonds. II. Proceedings on. IV. Other matters. I. Construction of condition. "Where a bond is conditioned, that if the obligor shall do certain things or any of them, and pay 3002., the obligation shall become void, upon any infraction the 3001. became due. Mercer v. Irving, xcvi. 563 ; E., B. & E. 5G3. Where the condition of a bond was, that for each unpaid instalment the obli- gees should receive " Is. in the pound for each and every pound" left unpaid, they were not entitled to anything for unpaid fractional parts of a pound. Three Towns Society v. Doyle, cvi. 290 ; 13 C. B. N S. 290. II. Proceedings on. Equitable plea that defendant was surety and had offered and was ready to pay all due to obligees upon receiving assignment of securities, is bad. Wode- house v. Farebrother, lxxxv. 277 ; 5 E. & B. 277. Bond of a party removing replevin out of county court, under 9 & 10 Vict. c. 95, s. 121, is forfeited unless he wins the suit. Tummons v. Ogle, lxxxviii. 571 ; 6E. &B. 571. The obligee of a bond, containing a provision that not less than one-fifth should be paid each year charged on the poor rates, under 6 & 7 Wm. 4, c. 96, s. 3, may enforce payment from rates after the five years if not negligent. Re- gina v. Hurstbourne Tarrant, xcvi. 246 ; E., B. & E. 246. When bonds issued by the directors of a railway company are ultra vires and void. Chambers v. M. & M. Railway Co., cxvii. 588 ; 5 B. & S. 588. III. Official Bonds. Sureties on bond of a bailiff are discharged where acts of parliament have changed the court in the amount and nature of its jurisdiction and altered table of fees. Pybus v. Gibb, lxxxviii. 902 ; 6 E. & B. 902. Surety on bond, conditioned for performance of duties under all laws " here- after to be in force," not relieved by passage of an act which changed office but did not destroy its identity. Mayor of Dartmouth r. Silly, xc. 97 ; 7 E. & B. 97. An officer being appointed under statute for a year only, his surety is not liable under subsequent reappointments, or subsequent statute making the tenure during pleasure, though the bond be conditioned for the performance of his duties under existing statutes and "such statutes as might be thereafter passed." Mayor of Cambridge v. Dennis, xcvi. 660; E., B. & E. 660. Under 19 & 20 Vict. c. 108, ss. 39 & 70, the registrar has only to see that a bond is executed by a party to the action with sufficient securities. Young v. Waterworks Co., ci. 675 ; 1 B. & S. 675. The execution of such a bond is within the scope of the general power of a joint stock company limited. Ibid. IV. Other matters. Joint stock company liable on bond given by directors without authority to bona fide obligee. Bank v. Turquand, lxxxv. 248 ; 5 E. & B. 248. Affirmed in Ex. Ch. lxxxviii. 327 ; 6 E. & B. 327. Given to enforce a combination of masters allowing majority to determine wages, hours of work, management of establishment, &c, is in restraint of trade and void. Hilton v. Eckerslcy, lxxxviii. 47 ; 6 E. & B. 47. Where a surety entered into a bond for 1000Z. to secure advances to principal on the faith of a collateral agreement that the advances should bo limited to 950Z. and if they exceeded 1000/. for a month without reduction notice should be given, held to be a reduction of liability to 950?. Gordon v. Rae, xcii. 1065 ; 8 E. & B. 1065. It appearing on the face of a bond to secure an annuity that one of the joint 7G BOND, IV. BOOKS. BOROUGH. obligors is a surety only, his discharge in bankruptcy is no defence to a claim for subsequent unpaid arrears. White v. Corbett, xcvi. 1103 ; E., B. & B. 1103. Where bonds of the corporation of London were charged on the tolls of the Thames, and subsequently an act of parliament took away the right of the corpora- tion and appointed conservators of the Thames, charged with the duty of collecting and applying the tolls, it was held that the obligation to pay had become impos- sible by act of law and was discharged. Brown v. Mayor of London, xcix. 726 ; 9 C. B. N. S. 726. Affirmed in Exchequer Chamber, cvi. 828 ; 13 C. B. N. S. 828. What sufficient bond of carrying out composition deed under 12 & 13 Vict. c. 106. Naylor v. Mortimore, cxii. 207 ; 17 C. B. N. S. 207. BOOKS. Webster's Dictionary, a very learned work. Metropolitan Association v. Petch, xciv. 504 ; 5 0. B.N. S. 504. Keble is of no high repute as an accurate reporter. Farrall v. Hilditch, xciv. 840; 5 C.B.N. S. 840. The Reporters, by J. W. Wallace, of Philadelphia, a " highly valuable and in- teresting work." Ibid. Burton's Compendium, a very accurate book. Phillips v. Ball, xcv. 811 ; 6 C. B. N. S. 811. Blackburn on Contract of Sale. Bailey v. Sweeting, xcix. 843 ; 9 C. B. N. S. 843. Wallace's Reporters, "a work remarkable for learned research." Erie, C. J. Kennedy v. Broun, cvi. 727 ; 13 C. B. N. S. 727. Cripp's Law of the Church, " ability and research displayed in it." Griffin v. Dighton, cxvii. 93 ; 5 B. & S. 93. Carpmail's Patent Cases, " not a professional report." Feather v. Regina, cxviii. 257 ; 6 B. & S. 257. BOROUGH. Under 5 & 6 Wm. 4, c. 76 and 5 & 6 Vict. c. 98, borough liable to contribute for conveyance of prisoners convicted of offences committed within borough, but not elsewhere, for expenses of assizes and sessions and for lock-ups. Regina v. Gravesend, lxxxv. 459 ; 5 E. & B. 459. Contract of borough for " support and maintenance" of prisoners includes salaries of officers, expense of repairs, &c. Ibid. Quayage, payable to borough from time immemorial for goods landed on ground partly belonging to corporation and partly to stranger, is not rateable. Lewis i>. Swansea, lxxxv. 508 ; 5 E. & B. 508. A local act to provide for maintenance of borough prisoners in county gaol not a contract within 5 & 6 Vict. c. 98, s. 18, and is repealed by that act. Bramston v. Mayor of Colchester, lxxxviii. 246 ; 6 E. & B. 246. Justices of the Quarter Sessions for the county of Sussex have the power of appointing the inspector of weights and measures for the borough of Brighton. Duly v. Sharwood, lxxxviii. 830 ; 6 E. & B. 830. Borough lands exempt by local act from watch rate previous to 5 & 6 Wm. 4, c. 76, may within two hundred yards of a street be rated under that act. Hallett v. Overseers of Brighton, xc. 342 ; 7 E. & B. 342. There being a de facto burgess list made out the mayor and assessors have no authority to prepare a new one. Seale v. Regina, xcii. 22 ; 8 E. & B. 22. A borough having a separate Quarter Sessions and contributing to the county rate is not liable for the expenses of a lunatic whose settlement is unascertained BOKOUGH. BOUNDARIES. BROKEK, I., II. 77 sent from it to an asylum. Guardians of Birmingham v. Beaumont, xoii. 870 ; S E. & B. 870. May be a town corporate within the licensing act 9 Geo. 4, c. 61, though it has not a separate court of Quarter Sessions. Brown v. Nicholson, xciv. 468 ; 5 C. B. N. S. 468. The county justices have exclusive authority to grant ale-house licenses under 9 Geo. 4, c. 61, within a borough haying no separate Court of Quarter Sessions. Candlish v. Simpson, ci. 357 ; 1 B. & S. 357. 15 & 16 Vict. c. 81, applies only to boroughs not subject to contribute to the county rate. Regina v. Overseers of Huddersfield, ci. 961 ; 1 B. & S. 961. Under 5 & 6 Wm. 4. c. 76, s. 32, the voting paper must be signed and must indicate the property qualifying the burgess to vote. Itegina v. Tart, cii. 618 ; IE. &E. 618. Suspension of, by expulsion of members. Mills v. Mayor, &c, of Colchester, cxii. 635 ; 17 C. B. N. S. 635. When borough will fall within description of liberty, franchise or place within 15 & 16 Vict. c. 81, s. 51. East Looe v. Cornwall, cxiii. 20; 3 B. & S. 20. Attorney occupying building as office is a burgess, and entitled to be a coun- cillor of borough under 5 & 6 W. 4, c. 76, s. 9. Re Creek, cxiii. 459 ; 3 B. & S. 459. The court will not infer from non-interference by the county justices the ex- clusive jurisdiction in the borough justices necessary to exempt it from county rates. Were v. Devon, cxviii. 7 ; 6 B. & S. 7. BOUNDARIES. Line of boundaries in deed a question for the court. Lyle v. Richards, cxiii. 962: 3 B. & S. 962. How far parol evidence admissible to explain. Ibid. BROKER. I. Extent of authority. III. Compensation. II. How principal affected by act of. IV. Other matters relating to. I. Extent of authority. One who orders stockbroker to buy authorizes him to deal according to the course and practice of the market. Taylor v. Stray, lxxxix. 175; 2 C. B. N. S. 175. Bound to accept shares bought for him, though bank, in the meantime, stopped payment, and directors have not approved transfer, he refusing to sign the deed. Ibid. It is no part of ordinary power of insurance broker to cancel policy, but only to effect it. Xenos v. Wickham, cviii. 435, 861 ; 14 C. B. N. S. 435, 861. Broker employed to effect policy of insurance has no power to have it cancelled. Ibid. Extent of authority and liability of broker. Am. Ed. note. Scott v. Jackson, cxv. 134 ; 19 C. B. N. S. 134. II. HOW PRINCIPAL AFFECTED BY ACT OF. Where the purchaser of shares, with the full knowledge that the completion of the transfer has been prevented by the stoppage of the bank, pays his broker, who under decision of the board, has paid seller's broker, action does not lie against the seller. Remfry v. Butler, xcvi. 887 ; E., B. & E. 887. BROKER, II.— IV. BUILDING ACTS. An assured leaving his papers with his brokers for adjustment of the loss, is estopped from denying their authority to collect the money. Sweetins; v. Pearcc, xcvii. 449 ; 7 0. B. N. S. 449. Affirmed in Exchequer Chamber, xcix. 534 ; 9 C. B. N. S. 534. But he is not bound by a custom at a particular place generally known but not known to him, in accordance with which the brokers settle the loss by balancing their individual accounts with the underwriter. Ibid. Broker who defended an action for unliquidated damages upon a contract, which his principal refused to carry out, may recover from the principal the damages and the costs of defending the suit. Broom v. Hall, xcvii. 503 ; 7 C. B. N. S. 503. Sold note of broker, acting as agent for both parties, sufficient memorandum in writing, within 17th section of Statute of Frauds as to buyer. Parton v. CroftSj cxi. 11 ; 16 C. B. N. S. 11. Where there is a clear jffer and acceptance of offer for goods, contract is final and binds principal. Heyworth v. Knight, cxii. 298 ; 17 C. B. N. S. 298. III. Compensation. When the relation of buyer and seller is brought about by the act of the agent, he is entitled to commissions. Green v. Bartlett, cviii. 681 ; 14 C. B. N. S. 681. IV. Other matters relating to. Dealer in foreign shares is a broker within 6 Ann. c. 16, and cannot recover commissions unless licensed. Smith v. Lindo, xciii. 395 ; 4 C. B. N. S. 395. But he may recover from his principal the price of shares which by custom he was compelled to pay. Ibid. Affirmed in Exchequer Chamber, xciv. 587 ; 5 C. B. N. S. 587. Liability of broker for penalty under 57 Geo. 3, c. 60. Scott v. Jackson, cxv. 134; 19 C.B.N. S. 134. Affirming Smith v. Lindo, xciii. 395 ; 4 C. B. N. S. 395. Selling shares of joint stock company or securities foreign, or otherwise, is acting or assuming to act as broker within the act. Ibid. It seems that any one is supposed to have notice that a broker is dealing for a principal and not for himself. Dresser v. Bosanquet, cxvi. 460, 486 ; 4 B. & S. 460, 486. BUILDING ACTS. Although by 18 & 19 Vict. c. 120, s. 76, building may be demolished unless notice is given of intention to build, party is entitled to be heard. Cooper o. Board of Works, cviii. 180 ; 14 C. B. N. S. 180. And without such opportunity district board liable for the demolition. Ibid. Under 18 & 19 Vict. c. 122, tenant when compelled to pay for party-wall to' building, owner may recover amount paid from landlord. Earle v. Maugham, cviii. 626 ; 14 C. B. N. S. 626. Under 25 & 26 Vict. c. 102 (Metropolis Local Management Act) what is an " erection." St. George v. Sparrow, cxi. 209 ; 16 C. B. N. S. 209. It seems that magistrates can decide what is the line of the street under said act and that superintending architect's decision is not final. Ibid. A footing of double the width of proposed wall not required in the cost of public buildings under 18 & 19 Vict. c. 122, s. 30. Regina v. Carruthers, cxvi. 804; 4B. &S. 804. BUILDING ASSOCIATION. BURIALS. CARRIERS. 79 BUILDING ASSOCIATION. Rule of society that a member not having executed mortgage, and in default for monthly contributions six months, shall forfeit his share, is reasonable. Card v. Carr, lxxxvii. 197; 1 C. B. N. S. 197. Forfeiture not waived by the acceptance of defaulting member's back dues by two directors, when rules required five to make a quorum. Ibid. Purchase of land will not cause cesser of Benefit Building Society under 6 & 7 W. 4, c. 32. ltegina v. D'Eyncourt, cxvi. 820 ; 4 B. & S. 820. Share of a member will not become forfeited by non-payment of weekly sub- scription, until so declared by society. Ibid. Notice to members that no further subscriptions would be received from in- vestment members, but that they would be considered withdrawing members, is inoperative. Ibid. BURIALS. Queen in council under 16 & 17 Vict. c. 134, may direct discontinuance of burials in churchyards situate in towns and established under church building acts. Regina v. Justices of Manchester, lxxxv. 702 ; 5 E. & B. 702. Members of burial-board elected by the general vestry and not by a select vestry created by local act. Regina v. Gladstone, xc. 575 ; 7 E. & B. 575. 18 & 19 Vict. c. 128, s. 18, does not apply to burying grounds in the parish the property of private persons. Regina v. Burial Board, ci. 679 ; 1 B. & S. 679. The maintaining of burial-grounds by burial-board of any parish under 18 & 19 Vict. c. 128, s. 18, does not apply to private burial-grounds. Regina v. St. John, Westgate, ex. 703 ; 2 B. & S. 703. Under 18 & 19 Vict. c. 128, s. 4, providing that every vacancy in the burial- board shall be filled by the vestry within one month, and in case of neglect may be filled by the board, the vestry can fill a vacancy after a month. Regina v. South Weald, cxvii. 391 ; 5 B. & S. 391. CARRIERS. I. Who are Carriers. (e) By act of party. II. General extent of liability. (d) By statute. III. Conveyance of goods. VI. Carriers by water. (a) Delivery to Carrier. VII. Proceedings against. (6) Delivery by Carrier. (a) Form of action. IV. Conveyance of persons. (6) Evidence. V. Restriction of liability. VIII. Proceedings by. By contract. IX. Lien of. By notice. I. Who are Carriers. $ Putting up a list of tolls at a station is not sufficient evidence to show that defendant is bound as a carrier to carry goods in bulk. Oxlade v. The N. E. Railway Co., xcix. 896 ; 9 C. B. N. S. 896. II. General extent of liability. Not liable for injuries caused by a crane, which he knew to be defective, to a stranger called in to assist persons whom he suffered to use it in unloading their goods. Blakemore v. B. & E. Railway Co., xcii. 1035 ; 8 E. & B. 1035. Aliter as to the persons so permitted if themselves injured. Ibid. 80 CARRIEES, II., III. Damages under 9 & 10 Viet. c. 93 may be given for the reasonable expectation of pecuniary advantage from the life of the deceased. Dalton v. S. E. Railway Co., xciii. 296 ; 4 C. B. N. S. 296. But not for funeral or mourning expenses. Ibid. Railway company not obliged, to fence between their railway and a yard adjoining the station through which carried cattle are compelled' to pass. Roberts v. Great Western Railway Co., xciii. 506 ; 4 C. B. N. S. 506. That a porter came into this yard with an ordinary lantern, frightening one of these cattle on to the track where it was killed, is no evidence of negligence. Ibid. Carrier not liable for injuries caused to an article through its own deleterious properties, its nature not being stated by plaintiff though well known to com- merce. Hutchinson v. Guion, xciv. 149 ; 5 C. B. N. S. 149. A plea to an action for negligent and careless stowage, that the goods were stowed as they were by direction and license of plaintiff, is no answer. Ibid. For negligence in delivering, liable for difference between value at the time of delivery and value at the time the goods should have been delivered. "Wilson v. L. & Y. Railway Co., xcix. 632; 9 U. B. N. S. 632. Not liable for loss of merchandise which traveller takes with him as luggage contrary to their regulations, though marked "glass." Cahill v. L. & N. W. Railway Co., c. 154; 10 C. B. N. S. 154. Affirmed in Exchequer Chamber, cvi. 818 ; 13 C. B. N. S. 818. Liability for returning packages called " empties." Aldridge v. G. W. Bailway Co., cix. 582 ; 15 C. B. N. S. 582. Whether insufficiency of steps at railway platform is negligence is a question for the jury. Foy v. Railway Co., cxiv. 225 ; 18 C. B. N. S. 225. Railway company liable for death of passenger caused by improper bridge at station. Longmore v. G. W. Railway Co., cxv. 183 ; 19 C. B. N. S. 183. A guard in employ of a dominant railway can recover for damages caused by a post found by the jury to be in a dangerous position, in an action against the servient railway. Graham v. N. E. Kailway Co., cxiv. 229 ; 18 C. B. N. S. 229. Liability of dominant and servient railway companies. Am. Ed. note. Ibid. Under Railway Traffic Act, 17 & 18 Vict. c. 31, a railway company cannot re- fuse a horse, unless extra charge be paid, though their agent knows the horse to be worth over 50Z. Robinson v. L. & S. W. Railway Co., cxv. 51 ; 19 C. B. N. S. 51. To demand extra charge the value musi be declared by shipper. Ibid. Title deeds carried by solicitor for trial at court are not included in terms " or- dinary luggage," under Carriers' Act, 11 Geo. 4 & 1 Wm. 4, c. 68. Phelps v. L. & N. W. Railway Co., cxv. 321 ; 19 C. B. N. S. 321. Nor bank notes for the expenses of the trial and not on his own account. Ibid. When carrier's agent makes an arrangement, without knowledge of carrier, to keep goods and notify consignee of arrival, the failure to do so will not make car- rier liable. Butterworth v. Brownlow, cxv. 409 ; 19 C. B. N. S. 409. A common carrier in the absence of special contract must carry goods by the usual route professed by him. Hales t. London & Northwestern Railway Co., cxvi. 66 ; 4 B. & S. 66. And exercise reasonable diligence in delivery. Ibid. What is reasonable diligence is a question of fact for the jury. Ibid. Liability of railway company under 8 & 9 Vict. c. 93. Pym v. G. N. Railway Co. cxvi. 396 ■ 4 B. & S. 396. Parties entitled to damages as individuals and not as a class. Ibid. Measure of damages against a carrier for not delivering goods at the place of destination where there is no market is the cost of the goods, transportation and a reasonable importer's profit. O'Hanlan v. G. W. Railway Co., cxviii. 484 : 6 B. &S. 484. III. Conveyance op goods. Registered proprietor of cab who hires it by the day for a certain sum to a licensed driver, the license being deposited with him, is responsible for driver's contract. Powles v. Hider, lxxxviii. 207 ; 6 E. & B. 207. Shipper liable to owner of vessol who is without notice for damage done bv dangerous goods insufficiently packed. Brass v. Maitland, lxxxviii. 470 ; 6 E. & B. 470. CARRIERS, III.— IV. 81 Though packing done by a third party and neither of them knew of its insuf- iiciency. Ibid. Alitor if the master had the means of knowing and ought to have known their condition. Ibid. May charge a higher rate for parcels addressed separately to different persons than if all were addressed to one consignee. Baxendale v. E. C. Railway Co., xciii. 63 ; 4 C. B. N. S. 63. At common law the rates of a carrier must be reasonable but need not be equal. Ibid. Railway company may bona fide so district its route, charging lower rates for full trains that the customers of one dealer lie all in one district, but those of another to his disadvantage are distributed. In re Ransome & E. C. Railway Co., xciii. 135 ; 4 C. B. N. S. 135. May not arrange a scale of rates to diminish the natural advantages of one dealer by annihilating in expense that portion of the distance where the compe- tition arises. Ibid. May charge a less proportionate rate for a longer distance, the calculation in- cluding expense of loading. Ibid. A discrimination not affecting the complainant is no ground for an injunction. Ibid. A railway company incorporated by 6 & 7 Wm, 4, c. 75, cannot escape its liability as a carrier, by requiring passengers to take care of their own luggage. Munster v. S. E. Railway Co., xciii. 676 ; 4 C. B. N. S. 676. And if on their declining, its servants place the package among lost luggage and refuse delivery without a charge, trover lies. Ibid. Under sect. 17 of 2 Vict. c. 42, which requires a railway company to charge equally for '' all goods of a like description," they cannot make an increased charge for packed parcels. Piddington v. The S. E. Railway Co., xciv. Ill ; 5 C. B?N. S. 111. Railway company may make a lower rate of charge to persons sending full trains, though for its own convenience it afterward separates the cars. Ransome v. E. C. Railway Co., xcviii. 709 ; 8 C. B. N. S. 709. A servant of a carrier can sue the shipper for injuries received from carrying dangerous goods, unless the latter has notified the carrier of the character of the goods. Farrant v. Barnes, ciii. 553 ; 11 C. B. N. S. 553. (a) Delivery to Carrier. Under 17 & 18 Vict. c. 31, a railway company will be restrained from requir- ing other carriers to deliver goods at an earlier hour than it receives goods de- livered at its own receiving offices. In re Baxendale, &c, civ. 757 ; 12 0. B. N. S. 757. (b) Delivery by Carrier. "Where porter of defendant took portmanteau of plaintiff, a passenger at ter- minus of defendant's route, put it on a truck, wheeled the truck to the station of the B. railway, and the portmanteau, which was not seen after coming to porter's hands, was lost before reaching destination on B. railway, no evidence to make defendant liable. Midland Railway Co. v. Bromley, lxxxiv. 372 ; 17 C. B. 372. Where carrier agent departs from usual mode of delivering goods by an ar- rangement with consignee, without knowledge of carrier, carrier is not liable for loss occasioned thereby. Butterworth v. Brownlow, cxv. 409 ; 19 C. B. N. S. 409. IV. Conveyance of persons. Liable for loss to one who relied upon taking train advertised on time table, but which had been discontinued. Denton v. Great Northern Railway Co., lxxxv. 860 ; 5 E. & B. 860. Omnibus proprietor carrying passengers and luggage has no right to drive Ins vehicle within enclosure of a railway station. Barker v. Midland Railway Co., lxxxvi. 46 ; 18 C. B. 46. ' . . . The owner of a boat employing the crew is liable to a passenger for injuries Vol. III.— 6 82 CARRIERS, IV.— V. (o), (6). caused by negligence of the crew, though the boat and crew are for the time hired by a third person with whom the passenger bargained and to whom ha paid his fare. Dalyell v. Tyror, xcvi. 899 ; B., B. & E. 899._ A master cannot recover from a railway company for injuries to a servant, Surchasing ticket and riding as a passenger on the railroad. Alton v. Midland :ailway Co., cxv. 213 ; 19 C. B. N. S. 213. _ The relation of the servant to the carrier in such cases is one of contract, and the master cannot recover. Ibid. A railway company is not liable to a passenger for the late arrival of the train when nothing is proved but the purchase of the ticket. Hurst v. G. W. Railway Co., cxv. 310; 19 C. B. N. S. 310. If any liability exist, it must be shown by time table, or otherwise. Ibid. V. Restriction of liability. (a) By contract. Though bill of lading stipulates against accountability for leakage or breakage, owner is liable for such loss occasioned by gross negligence. Phillips v. Clark, Ixxxix. 156 : 2 C. B. N. S. 156. Liable as carriers where special contract relieving them was obtained by fraud. Simons v. G. W. Railway Co., Ixxxix. 620 ; 2 C B. N. S. 620. Agreement not to be liable for leakage or breakage does not exempt a earner from ordinary care in storage. Phillips v. Clark, xciv. 881 ; 5 C. B. N. S. 881. A condition that a railway company will not be responsible for damage, deten- tion or loss to a package insufficiently packed, marked or directed, is unreason- able. Garton v. Bristol & Exeter Railway Co., ci. 112 ; 1 B. & S. 112. Also, a condition that goods will not be received after quarter past five, if the goods of other parties are so received. Ibid. Passenger on excursion train cannoi; take luggage contrary to regulations of company. Ramsay v. N. E. Railway Co., cviii. 641 ; 14 C. B. N. S. 641. 18 & 19 Vict. c. 211, allowing certain amounts to be carried, only applies to ordinary trains. Ibid. Limitation of liability, under 17 & 18 Vict. c. 31, s. 7, though just and reason- able, must be contained in a signed contract. Peek v. N. S. Railway Co., cxvi. 1005 ; 4 B. & S. 1005. A letter requesting the goods to be sent not insured, after correspondence dis- puting the right of the company to exempt itself from liability, unless there be insurance, is not a contract signed within 17 & 18 Vict. c. 31. s. 7 (Railway Traf- fic Act). Ibid. A contract that a railway company shall not be liable for delay in delivery, however caused, is unreasonable, within 17 & 18 Vict. c. 31. Allday v. G. W. Railway Co., cxvii. 903 ; 5 B. & S. 903. Certain conditions, limiting liability of carrier, found just and reasonable, under 17 & 18 Vict. c. 31, s. 7. Aldridge v. G. W. Railway Co., cix. 582 ; 15 C. B. N. S. 582. The construction of conditions under the act is for the court. Ibid. A signing by an agent of both parties sufficient under the act. Ibid. When limitation of liability in reference to carriage of dog good, under 17 & 18 Vict. c. 31, s. 7. Harrison v. L. & B. Railway, ex. 122 ; 2 B. & S. 122. (b) By notice. Semble, notice by telegraph company, that not responsible for mistakes in trans- mission of unrepeated messages, would protect from liability at common law. 'tlacAndrew v. Electric Telegraph Co., Ixxxiv. 3 ; 17 C. B. 3. Where passenger's ticket provided that the ship not accountable for luggage, unless bills of lading signed, each passenger allowed twenty feet of luggage free ; held, that without bill of lading company not liable for loss caused by negligence of captain. Wilton v. Atlantic R. M. Steam Co., c. 453 ; 10 C. B. N. S. 453. A railway company, receiving parcels at its terminus and giving a ticket there- for, may limit its liability by notice on back of ticket. Van Toll v. S. E. Railway Co.. civ. 75; 12 C. B. N. S. 75. A condition that a railway company should not be responsible for a certain CARRIEKS, V. (J), (c), (d). 83 , is not just and reasonable lot of marble, unless insured according to its value, within 17 & 18 Vict. c. 31, s. 7, (Railway Traffic Ac'.,. Co., (II. of L.) cxvi. 1005; 4 B. & S. 1005. Reversing judgment of Exchequer Chamber and affirming that of Queen's Bench, xevi. 958, 986 ; E., B. & E. 958, 9S6. A condition limiting the liability of a company for neglect or default within the act must appear just and reasonable to the court to be good. Ibid. But it seems where a company offers reduced rates on condition of a restriction of liability that it is just and reasonable within 17 & 18 Vict., e. 31, s. 7. Peek v. Is. S. Railway Co., cxvi. 1005 ; "4 B. & S. 1005. (c) By act or party. A railway company incorporated by 6 & 7 W. 4, c. 75, cannot escape its lia- bility as a carrier by requiring passengers to, take care of their own luggage. Munster v. S. E. Railway Co., xciii. 676 ; 4 C. B. N. S. 676. The company is not necessarily released because the passenger by common consent takes the article in the carriage along with him. Le Couteur v. S. W. Railway Co., cxviii. 961 ; 6 B. & S. 961. (d) By statute. Carriers partly by land and partly by water are within protection of Carriers' Act, 11 Geo. 4 and 1 Wni. 4, c. 68. Pianciani v. L. & S. W. Railway Co., lxxxvi. 226; 18 C.B. 226. What is evidence of felony in answer to defence under Carriers' Act, 1 1 Geo. 4 and 1 Wm. 4. c. 68. G. W. Railway Co. v. Rimell, lxxxvi. 575; 18 C. B. 575. Also reported xcv.917 ; 6 C. B. N. S. 917. When felony is set up question of negligence is immaterial. Ibid. The Railway and Canal Traffic Act, 17 & 18 Vict. c. 31, permits the company to make a special contract, provided it be signed by the consignor and be in the opinion of the court just and reasonable. Simons v. The G. W. Railway Co., lxxxvi. 805 ; 18 C. B. 805. A condition that company will not be responsible for the loss, detention or damage of goods improperly packed unreasonable. Ibid. That where goods conveyed at special or mileage rates company not responsible for loss or damage however caused is reasonable. Ibid. Qucere as to condition requiring claim to be made within three days. Ibid. Where company was authorized by acts to charge higher rate for small parcels, being single parcels in separate packages, held they could -charge the higher rate where many packages of articles of similar classes were sent by the same con- signor to the same consignee. Parker v. G. W. Railway Co., lxxxviii. 77 ; 6 E. &'B. 77. And also where parcels of coffee were sent at different times on same day, shipped on same train to same consignee, and notice was given when the first was sent that others would probably follow. Ibid. Being authorized to charge a certain rate for manufactured goods, it was held that these were articles made in what are popularly called manufactories. Ibid. The company being required to charge equally, but authorized to make agree- ments as to collection of packages, did not overcharge one who paid the ordinary rates, though certain amounts were allowed out of company's funds to special agents engaged to collect for them. Ibid. They can refuse to carry coal except for colliery owners. Ibid. To a plea under the Carriers' Act, that the value of the goods being over 101. was not disclosed, felony of the defendant's servants is a good answer. Met- calfe v. Railway Co., xciii. 307 ; 4 C. B. N. S. 307. But proof that goods were in a box given to defendants to be carried and were abstracted before delivery, is no evidence of such felony. Ibid. What are " trinkets," " silks" and " glass." within the Carriers' Act, 1 1 Geo. 4 & 1 Wm. 4, c. 68. Bernstein v. Baxendale, xcv. 251 ; 6 C. B N. S. 251. Railway companies only bound to carry according to the profession they make. In re Oxlade & N. E. Railway Co., cix. 679 ; 15 C. B. N. S. 679. A letter signed on behalf of person delivering goods, directing the company to forward them "not insured," is a sufficient special contract in writing, within 84 CARRIERS, V. («©— IX. sect. 7 of 17 & 18 Vict. c. 31. Peck v. N. Staffordshire R. W. Co., xcvi. 958 ; E., B. & E. 958. It supports a plea of an agreement not to be responsible for loss. Ibid. Evidence to show the meaning of the words "not insured" may be admitted. Ibid. 17 & 18 Vict. c. 31, s. 7, does not protect, if condition be not just and reason- able. Peek v. N. S. Railway Co., (H. of L.), cxvi. 1005 ; 4 B. & S. 1005. The Carriers' Act, ] 1 Geo. 4 & 1 ¥m. 4, applies to a contract for conveyance part by land and part by sea. Le Couteur v. S. W. Railway Co., cxviii. 961 ; 6 B. & S. 961. VI. Carriers by water. The Railway & Canal Traffic Act, 17 & 18 Vict. c. 31, does not apply to the case of two distinct navigations, one of which is stopped with a view to benefit the other. Bennett v. M. S. & L. Railway Co., xcv. 707 ; 6 C. B. N. S. 707. VII. Proceedings against. (a) Form of action. An action against a common carrier for breach of his duty to deliver goods, is an action of tort and is not within provisions of 19 & 20 Vict. c. 108. Tattan v. G. W. Railway Co., cv. 844 ; 2 E. & E. 841. (6) Evidence. Not estopped from setting up the jus tertii though employed by the plaintiff. Sheridan v. The New Quay Co., xciii. 618 ; 4 C. B. N. S. 618._ A night inspector on a railroad has no right to make admissions as to part transactions so as to bind employers. G. w. Railway Co., App., Willis, Resp.. cxiv. 748 ; 18 C. B. N. S. 748. VIII. Proceedings by. Carrier may recover on a policy of fire insurance " on goods their own and held in trust as carriers" to the extent of the value of the goods, though he have a de- fence against owner under Carriers' Act. L. & N. W. Railway Co v. Glyn, cii. 652; IE. &E. 652. IX. Lien op. Lien continues for goods of passenger carried, when company is entitled to charge, until proper amount is tendered. Rumsey v. N. E. Railway Co., cviii. 641 ; 14 C. B. N. S. 641. CASE, I. (a), (6). 85 CASE. I. Generally. (a) Collision of carriages, ships, (a) When the proper remedy. &o. lb) Parties. (6) Imitation of marks on (c) Negligence of plaintiff. goods. II. Injuries to real property. (c) Other injuries to personal (a) Ancient lights. property. (6) Ways. (d) Injuries to person. (c) Injury to buildings. (e) Injuries from animals to per- (d) Right to flowing water. son. (e) Other matters relating to (f) False representation. injuries to real property. IV. Pleadings. ILL Injuries to personal property. V. Damages. I. Generally. (a) When the proper remedy. No justification of a sheriff in case for not arresting, that after he had arrested under an invalid writ he endeavored to hold under the valid writ but defendant was discharged. Hooper v. Lane, xcii. 1095 ; 8 E. & B. 1095. One who employs a carrier to convey a dangerous package, must inform him of its character, or he will be responsible for any injury which may result to the carrier or his servants, from his omission. Farrant v. Barnes, ciii. 553 ; 11 C. B. N. S. 553. It is the proper form of action against a carrier for breach of his duty, to safely carry and deliver goods. Tattan o. G. W. Railway Co., cv. 844 ; 2 E. & E. 844. Master liable to servant while working with him for injury occurring to him, through negligence of master. Ashworth v. Stanwix, cvii. 702 ; 3 E. & E. 702. Partner of master so working also liable. Ibid. Doctrine of negligence of fellow servant does not apply in such case. Ibid. Attorney without express instructions, compromising case, not liable -where reasonable care and skill have been used. Chown v. Parrott, cviii. 74 ; 14 C. B. N. S. 74. An action will lie for maliciously and without reasonable and probable cause setting the law in motion to the damage of another. Castrique v. Behrens, cvii. 709 ; 3 E. & E. 709. But it must be shown that the cause has terminated in favor of the party suing. Ibid. And the same rule applies when a judgment in rem unreversed has been re- covered in a foreign tribunal. Ibid. Unless, perhaps, the plaintiff, whose rights were affected, could not have inter- vened and had no opportunity to appear. Ibid. Negligence in delivering bills of lading where no duty is imposed upon defend- ant, either by contract, circumstances duly stated, or mercantile usage, will not make him liable. Dutton v. Powles, ex. 174 ; 2 B. & S. 174. For negligence of workman in not taking proper precautions in working on highway. Cleveland r. Spier, cxi. 399 ; 16 C. B. N. S. 399. When by deed of settlement a manager of a banking company is only liable for wilful neglect, he is not liable for negligence. Ward v. Greenland, cxv. 527 ; 19 C. B. N. §. 527. (6) Parties. Lies against innkeeper, for goods of guest stolen, unless negligence of guest causes the loss in such a way that it would not have happened if he had used ordinary care. Cashill v. Wright, Ixxxviii. 891 ; 6 E. & B. 891. Landlord not in possession, who lets houses in a ruinous condition, is liable for injuries caused thereby to adjacent premises. Todd v. Flight, xcix. 377 ; 9 0. B. N. S. 377. An employer is liable for injuries caused by the negligence of a contractor in- trusted with a duty incumbent on the employer. Pickard v. Smith, c. 470 ; 10 C. B. N. S. 470. 86 CASE, I. (c)— II. (a). (c) Negligence op plain-tiff. Plaintiff cannot recover where collision caused by absence of light on his collier, though defendant's steamer running too fast and jury find with " prepon- derance of blame." Dowell v. Steam Nav. Co., lxxxv. 195 ; 5 E. & B. 195. True at common law and 14 & 15 Vict., c. 79, removes all doubt. Ibid. Plaintiff has no remedy if his negligence in any degree contributed to the accident. Ibid. Driving ,to the left at night, though a lamp to the right, is not concurrent neg- ligence, preventing recovery for injury caused by an obstruction in the highway. Arthy v. Cplenian, xcii. 1093 ; 8 E. & B. 1093. Negligence of plaintiff which does not directly contribute to the accident does not prevent recovery. Tuff w. Warman, lxxxix. 740; 2 C. B. N. S. 740. Affirmed in Exchequer Chamber, xciv. 573 ; 5 C. B. N. S. 573. A child of tender years, in charge of an older person, injured by the negligence of defendant, cannot recover if there is concurrent negligence on the part of his custodian. Waite v. N. E. Railway Co., xcvi. 719 ; E., B. & E. 719. "Where injury is caused partly by negligence of plaintiff and partly by negli- gence of the defendant the plaintiff cannot recover. Witherly v. Regent's Canal Co., civ. 2 ; 12 C. B. N. S. 2. One exposing himself to danger in the performance of a lawful duty, unless the circumstances are such that it is a want of ordinary prudence, not guilty of negligence. Thompson v. N. E. Railway Co., ex. 106 ; 2 B. & S. 106. One casually appealed to for information by a workman on a highway is not a "volunteer assistant" so as to exonerate the master from liability for injury to him by negligence of workman. Cleveland v. Spier, cxi. 399 ; 16 C. B. N. S. 399. II. Injuries to real property. To enable reversioner to maintain an action for nuisance, the injury must be permanent. Simpson v. Savage, lxxxvii. 347 ; 1 C. B. N. S. 347. Enlargement of ancient lights justifies an obstruction to old as well as new light's, only when the latter cannot be obstructed without obstructing the former, otherwise the ancient right remains. Binckes v. Pash, ciii. 323 ; 11 C. B. N. S. 323. Brick-kilns may be nuisance as to adjoining land, though it be a reasonable use of defendant's land. Bamford v. Turnley, cxiii. 66 ; 3 B. & S. 66 ; reversing s. c. in Q. B. Ibid. 62, and overruling Hole v. Barlow, xcii. 334 ; 4 C. B. N. S. 334. How far copper manufacturing company liable for injury to adjoining land (Bamford v. Turnley, cxiii. 62 ; 6 B. & S. 62, approved). Tipping v. St. Helen's Smelting Co., exvi. 608 ; 4 B. & S. 608 ; affirmed, H. of L. cxvi. 1093. (a) Ancient lights. One who closes up his ancient lights in such a way as not to manifest his in- tention to abandon or to lead others to expense in the belief that he has done so, does not lose the right. Stokoe v. Singers, xcii. 32 ; 8 E. & B. 32. A declaration for obstructing ancient lights, which shows an obstruction that may be a permanent injury to the reversion, is sufficient. Metropolitan Asso- ciation v. Fetch, xciv. 504 ; 5 0. B. N. S. 504. Action does not lie for obstructing ancient lights so altered that defendant cannot obstruct unprivileged parts without also obstructing privileged parts. Hutchinson v. Copestake, xcviii. 102 ; 8 C. B. N. S. 102. Affirmed in Exchequer Chamber, xcix. 863 ; 9 C B. N. S. 863. Overruled in Tapling v. Jones, cvi. 876 ; 13 C. B. N. S. 876. Wher,e there has been an enlargement of ancient lights and the old have been necessarily obstructed in constructing the new lights, after the stopping up of the new lights, an action will lie for the continuance of the obstruction. Per Erie, C. J., and Williams, J. Contra, Byles and Keating, JJ. Jones v. Tapling, ciii. 283; 11 C. B.N. S. 283. Affirmed civ. 826; 12 C. B. N. S. 826. Pollock, C. B., and Martin, B. dis- senting ; and affirmed in H. of L., cvi. 876 ; 13 C. B. N. S. ><76. Enlargement of ancient lights justifies an obstruction to old as well as new lights only when the latter cannot be obstructed without obstructing the former, ■ ;,I. CASE, II. (a), (J), (e), (d). otherwise the ancient right remains. Binckes !'. Pash, ciii. 323 ; 11 C. B. N. S One tenant may acquire an indefeasible right to light and air against another tenant of the same landlord by lapse of time under 2 & 3 \V. 4, c. 7. Frewen r. Phillipps, ciii. 449; 11 C. B. N. S. 449. Plea of a custom to rebuild to any height is no defence to an action for ob- structing ancient lights since 2 & 3 W. 4, c. 7, when right has been enjoyed for twenty years before any suit in which claim is brought in question. Cooper v. Hubbuck, civ. 456 ; 12 C. B. N. S. 456. Opening a modern light overlooking the grounds of another is an innocent act. Tapling v. Jones, cvi. 876 ; 13 C. B. N. S. 876. So also is building on one's own land a wall which obstructs the view from a modern light. Ibid. But building a wall which obstructs an ancient light is illegal, though it be the only means of obstructing an objectionable modern light. Ibid. (&) Ways. Under Canal Act, 10 Geo. 3, c. 28, after throe months' notice of intention to work mine under canal, and failure on part of company to inspect or refuse to permit mine to be worked, company cannot recover damages for injury. Navi- gation Co. v. Dudley, cvii. 409 ; 3 E. & E. 409. The proviso in the act that no injury is to be done to navigation to be con- strued in reference to main clauses, and does not apply in such case. Ibid. (c) Injury to buildings. No right of support to the surface where both parties claim through an award under an act which severed the surface from the minerals and provided against such a right. Rowbotham v. Wilson, lxxxviii. 593 ; 6 E. & B. 593. Though he, through whom owner of minerals claims, received allotment under but did not execute award. Ibid. Though the houses injured had stood more than twenty years. Ibid. Affirmed in Exchequer Chamber, xcii. 123 ; 8 E. & B. 123. Where an enclosure act to allot waste lands enabled the lord of the manor to come on them and mine coal, and provided that he should not open any mine within forty yards of a house or get any coal within forty yards of the foundation, he was held liable for injuries caused by working beyond that distance, Roberta f. Haines, lxxxviii. 643 ; 6 E. & B. 643. Affirmed in Exchequer Chamber, xc. 625 ; 7 E. & B. 625. Will not lie for excavation on adjoining lot, causing the fall of plaintiff's wall, where plaintiff bought property with the condition that a house of certain propor- tions was to be erected on adjoining lot. Murchie v. Black, cxv. 190 ; 19 C. B. N. S. 190. (d) Right to flowing watek. Where occupiers of plaintiff's land for more than forty years had gone on de- fendant's land and turned water of a brook into an artificial channel, defendant liable for interruption. Beeston v. Weate,.lxxxv. 986 ; 5 E. & B. 986. Water cannot be detained until so late in the day that landowner below is deprived of the full use of it. Sampson v. Hoddinott, lxxxvii. 590 ; 1 C. B. N. S. 590. Riparian rights limited to natural streams. Ibid. All persons owning lands along a stream have a natural right to use the water and may ben-in when they will. Ibid. Affirmed in Exchequer Chamber, xci. 596 ; 3 C. B. N. S. 590. 49 Geo. 3, c. 77, enclosing the locus in quo and the General Enclosure Act, 41 Geo 3 c. 109, do not extinguish the right to take water from a well. Race v. Ward, xc. 384 ; 7 E. & B. 3*4. Semble, nor the means of access. Ibid. 13 Geo. 2, c. 26, providing that the river to be made navigable and all lands used by the company for the benefit of the navigation should be vested in the company, gives them such an interest in the water itself as is interfered with by its abstraction. Medway Co., v. Romnoy, xcix. 575 ; 9 C. B. N. S. 575. 88 CASE, II. (d)— III. (a). When the owner of the dominant and servient tenement conveys the former, with all its waters, easements, Sea., the purchaser has a right as against a sub- sequent purchaser of the servient tenement to the land, with the waters running as they did at the time of the conveyance. Wardle v. Brocklehurst, cii. 1058 ; I B. & E. 1058. No action will lie for interfering with water percolating under ground into v. well, or for abstracting water already collected in such well by percolation. New River Go. v. Johnson, cv. 434 ; 2 E. &. E. 434. Canal company cannot recover for injury caused by mining under them, when they have not inspected or given notice of refusal under 16 Oreo. 3, c. 28. Nav. Co. v. Dudley, cvii. 409 ; 3 E. & E. 409. Right of adjoining mine-owner to flow of water into neighbor's mine. Baird v. Williamson, cix. 376 ; 15 C. B. N. S. 376. Abstraction of water in rivulet fed by underground springs by reason of erec- tion of sewer gives no right at common law to damages, llegina v. Board of Works, cxiii. 710 ; 3 B. & S. 710. Nor under 11 & 12 Vict. c. 112, ss. 50, 69. Ibid. Right of digging clay sufficient occupation to entitle one to claim a right to a, watercourse under 2 & 3 W. 4, c. 71. Gaved v. Mart™, cxv. 732; 19 C. B. N. S. 732. When such claim is precarious by permission of the owner it is not sufficient. Alitcr, when channel has been dug and used without interruption for over twenty years, even though water was collected in land subject to the rights of tin-founders. Ibid. But where water is brought artificially to the surface by the miners and not abandoned by them, such a claim is not good. Ibid. Injuriously affecting a watercourse by a local board without consent is not a subject of compensation, under 21 & 22 Vict., c. 98, but a ground for an action. Regina v. Darlington, cxvii. 515 ; 5 B. & S. 515. Affirmed in Exchequer Chamber, cxviii. 562 ; 6 B. & S. 562. (. Wakefield, lxxxviii. 462 ; 6 E. & B. 462. Not allowed where the sole object is to discover the case of the adversary or where to contradict written documents. Moor v. Roberts, lxxxix. 671 ; 2 C. B. N. S. 671. Interrogatories as to the contents of a lost instrument permitted, only how- ever to be used on the trial on the event of the party being in aposition to give secondary evidence. Wolverhampton New Waterworks Co. v. Hawksford, xciv. 703 ; 5 C. B. N. S. 703. In an action for calls defendant was permitted to be interrogated as to whether, and when, he received a writing relating to his becoming a shareholder or director. Ibid. Allowed, seeking admissions from plaintiff of conversation as to subject-matter with agent of defendant. Rew v. Hutchins, c. 829 ; 10 C. B. N. S. 829. And asking for dates and names of places and correspondents. Ibid. Alitor, as to prior transactions not connected with the contract. Ibid. And as to terms of contract between plaintiff and other persons. Ibid. And to disprove a custom on which plaintiff supposed to rely. Ibid. 100 COMMON LAW PROCEDURE ACTS, XIV— XVIII. Relevant interrogatories, which party would be bound to answer in witness-box, permitted. Zychlinski v. Maltby, c. 838 ; 10 C. B. N. S. 838. Interrogatories may be delivered (under 17 & 18 Viet. c. 125) though the answers may render a person liable to criminal prosecution, but he may refuse to answer. Bartlett v. Lewis, civ. 247 ; 12 C. B. N. S. 247. Interrogatories may be delivered in an interpleader issue, under 17 & 18 Vict, c. 125. White o. Watts, civ. 266 ; 12 C. B. N. S. 266. Interrogatories by defendant under Act 1854 not allowed as to nature of title upon which plaintiff relies in suit in ejectment, unless there are special circum- stances. Stote ». Rew, cviii. 209 ; 14 C. B. N. S. 209. Interrogatories, under Act 1854, s. 51, allowed though an affirmative answer would disclose fraud in defendant. Goodman v. Holroyd, cix. 839 ; 15 C. B. N. S. 839. % Interrogatories upon plaintiff under Act 1854 will only be allowed to defendant when the affidavit discloses special circumstances requiring it. Pearson v. Turner, cxi. 157 ; 16 C. B. N. S. 157. Under Act 1854, s. 87, interrogatories in an action for false and fraudulent representation in the sale of a business, when allowed. Blight v. Goodliffe, cxiv. 757 ; 18 0. B. N. S. 757. Not allowed where the answers would have the effect of causing a forfeiture of defendant's estate. Pye v. Butterfield, cxvii. 829 ; 5 B. & S. 829. Not allowed plaintiff where the object is to discover his cause of action or whether he has any. Morris v. Parr, cxviii. 203 ; 6 B. & S. 203. Interrogatories which may reasonably be expected to aid the case of the party interrogating are admissible, though they would disclose the case of the other side. Hawkins v. Carr, cxviii. 995 ; 6 B. & S. 995. XV. Judgment. "Where the amount specially endorsed on the summons is reduced by subse- quent payments, judgment for want of appearance should be entered only for the balance. Hodges v. Callaghan, lxxxix. 306 ; 2 C. B. N. S. 306. Motion for judgment and execution made to the court and absolute in first instance. Youens v. Keen, lxxxix. 384; 2 C. B. N. S. 384. The affidavit in support of an application to be let in to defend, under s. 25, of 15 & 16 Vict., c. 76, must show the nature of the defence. Whiley v. Whiley, xciii. 653 ; 4 C. B. N. S. 653. The case of debt on a judgment is within s. 27, of 15 & 16 Vict. c. 76. Hodsoll v. Baxter, xcvi. 884; B., B. & E. 884. XVI. Jurisdiction. A defendant out of jurisdiction of court may be sued, under 9 & 10 Vict. c. 95, s. 60, and 19 & 20 Vict. c. 108, s. 15, where he has ordered work done by plaintiff by letter and latter has done the work. Newcomb v. De Roos, cv. 271 ; 2 E. & E. 271. Under 17 & 18 Vict. c. 125, s. 38, discretion of judge who tried the cause to dispense with bail in error will not be interfered with. Turquand v. Moss, cxii. 15; 17 C.B.N. S. 15. Claim for a balance between a merchant in England and one residing at Cape of Good Hope, is within Act 1852, s. 18. Horwood v. Wood, cxii. 749 ; 17 C. B. N. S. 749. XVII. Jury, special. Sheriff not entitled to fees from party having his cause tried by special jury. Bennett v. Thompson, Ixxxviii. 683 ; 6 E. & B. 683. Under Act 1852, ss. 112, 113, a cause marked for trial by a special jury may, in the absence of a special jury, be tried before a common jury. Cawley v. Knowles, cxi. 107 ; 16 C. B.'N. S. 107. XVIII. Mandamus. Does not give mandamus for enforcement of a contract. Benson v. Paull, Ixxxviii. 273: 6 E. & B. 273. COMMON LAW PROCEDURE ACTS, XVIII., XIX. 101 Lies to compel a company incorporated by charter to insert in the register the names of proprietors of shares. Norris v. Irish Land Co., xcii. 512 ; 8 E. & B. 512. Under the Act of 1854, the plaintiff may allege the amount of the debt gen- erally, leaving it for jury to find precise amount for which mandamus to issue. Ward v. Lowndes, cii. 940 ; 1E.&E. 940. Although, under Act 1854, the issuing mandamus to levy rate is discretionary with court, it will be granted in a clear case. Ringland v. Lowndes, cix. 173 ; 15 C. B. N. S. 173. Mandamus to levy rate to pay judgment not a charge, within 11 & 12 Vict. c. 63, s. 89, will not issue, under 17 & 18 Vict. c. 125, s. 18. Burland v. Local Board of Health, cxiii. 271 ; 3 B. & S. 271. « XIX. Pleadings and equitable defences. Equitable plea, that defendant was surety and had offered and was ready to pay all due to obligees upon receiving assignment of securities, bad. Wodehouse v. Farebrother, lxxxv. 277 ; 5 E. & B. 277. Only good where judgment would do final and complete justice between the parties. Ibid. To a plea setting forth an agreement between plaintiff and a third person which had been fully performed, a replication on equitable grounds of mistake in the agreement is good. Vorley v. Barrett, lxxxvii. 225 ; 1 C. B. N. S. 225. Must disclose such facts as would entitle him to absolute and unconditional relief in a court of equity. Flight v. Gray, xci. 320 ; 3 C. B. N. S. 320. Where there was a plea on equitable grounds of a subsequent agreement and that the agreement should be accepted in satisfaction of the breach, the court ordered two pleas to be filed, one as a legal plea and the other without the allega- tion of satisfaction. Jonassohn v. Ransome, xci. 779 ; 3 C. B. N. S. 779. To a covenant by defendant and wife to pay money, plea that they mortgaged wife's lands to plaintiff, to secure the debt which was for money borrowed to pay debt of wife contracted before marriage, that she had died leaving plaintiff her heir, and the lands were more than sufficient to pay debt and costs, is good as an equitable plea. Gee v. Smart, xcii. 313 ; 8 E. & B. 313. Plea, that plaintiff proved part of the debt in bankruptcy and elected to take the benefit of the petition with respect to the whole debt, is good. Elder v. Beau- mont, xcii. 353 ; 8 E. & B. 353. Where a court of equity would only grant partial relief, an equitable plea is bad. Scott v. Littledale, xcii. 815 ; 8 E. & B. 815. Quart impedit is within the 80th section of the Act of 1852. Marshall v. Bishop of Exeter, xcv. 716 ; 6 C. B. N. S. 716. To a plea of release by plaintiff a replication on equitable grounds that before the release the subject-matter was transferred to S., with notice to defendant that the release was made in fraud of S., and that the suit is brought on behalf of S. without interest in the plaintiff, is good. De Pothonier v. De Mattos, xcvi. 461 ; E., B. &E. 461. Plea of misrepresentation, on the faith of' which defendant made the contract. Gorsuch v. Cree, xcviii. 574 ; 8 C. B. N. S. 574. _ To a plea of satisfaction by money and securities a, replication on equitable grounds that the securities were received on the faith of defendant's statement, that they were valid, but that in fact they were void, is good. Stears v. South Essex Gaslight Co., xcix. 180 ; 9 C. B. N. S. 180. That plaintiff knew of, acquiesced in and consented to the pulling down and rebuilding, and the expenditure of money by defendant thereon, and that all the grievances were thereby occasioned, is a good equitable plea. Davies v. Marshall, o. 697; IOC. B. N. S. 697. That plaintiff consented, on the faith of false representations of defendant that the grievances would not result, is a good equitable replication. Ibid. To a count setting forth an agreement by defendant to buy a lease subject to his approval as tenant by A., and to pay 500Z. as soon as his banker could retaiit, an equitable plea that before action and before demand defendant was disap- proved by A., and plaintiff was unable to sell, is not good. Davis v. Nisbett, c. ?52: 10 C. B. N. S. 752. 102 COMMON LAW PROCEDURE ACTS, XIX., XX. But an equitable replication thereto in substance that the disapproval was pro- cured by defendant as a pretext would be good. Ibid. 23 & 24 Vict. c. 126, s. 19, does not authorize the joinder of several persons in a declaration on a contract the right to sue upon which has come to one of them by survivorship. Bellingham v. Clark, ci. 332 ; 1 B. & S. 332. Replication to a plea of infancy that defendant fraudulently represented him- self to be of full age, is not good on equitable grounds. Bartlett v. Wells, ci. 836 ; 1 B. & S. 836. That the premises were destroyed by fire, and the landlord received insurance money without rebuilding, is no defence to an action for rent. Loft v. Dennis, cii. 474 ; 1 B. & B. 474. The words " now over-due," in the form of declaration on a bill of exchange, are descriptive and not traversable. The fact is put in issue by a plea of " non- aceeptavit." Hintoni-. Cuff, ciii. 722; 11 C. B. N. S. 722. A defendant will not be allowed to file a rejoinder on equitable grounds to a replication on equitable grounds, setting up the same grounds of relief which he has already set up in a court of equity by bill. Schlumberger v. Lister, cv. 854 ; 2 E. & B. 854. In a suit for infringing letters patent, a replication on equitable grounds to a plea of a license, that licensee is restricted from making patented article for sale outside of the United Kingdom, by a contemporaneous deed made between plaintiff, licensee and others, is bad, because defendant could be sued by the others. Schlumberger v. Lister, cv. 868 ; 2 B. & E. 868. Not admissible to set up a parol dispensation of a condition in an instrument under seal. Iron Works v. Steam Packet Co., cvi. 358 ; 13 C. B. N. S. 358. Whenever a court of equity will grant relief without imposing terms, a plea setting it out will be good as an equitable defence. Borrowman v. Rossel, cxi. 58 ; 16 C. B. N. S. 58. In equitable pleas when plea is general as to amount, bill of particulars will be ordered. Owen v. Nickson, cvii. 602 ; 3 B. & E. 602. So when plaintiffs make affidavit that they are ignorant of a document referred to iu plea, that they have no meana of ascertaining its contents, and that they are material, inspection will be ordered. Ibid. Count for breaking and entering rooms of husband, can be joined with count by husband and wife for imprisonment of wife ; Act 1852, s. 40. Morris v. Moore, cxv. 359 ; 19 C. B. N. S. 359. XX. Practice. After personal service of summons on defendant abroad the court, under special circumstances, permitted notice of the declaration to be given by sticking it up in master's office. Bates v. Bates, xcix. 561 ; 9 C. B. N. S. 561. And upon appearance by' attorney after time allowed for pleading refused to stay proceedings. Ibid. Affidavit in support of application to deliver interrogatories must state that party will be benefited " in this cause." Oxlade o. North Eastern Railway Co., civ. 350; 12 C. B. N. S. 350. The affidavit of an attorney is unnecessary when party sues or defends in per- son. Ibid. An order granting leave to proceed under 15 & 16 Vict. c. 76, where there had been a service of defendant's agent, and where defendant carried on business in London and could not be served personally, will not be discharged on affidavit of agent alone that defendant, when suit was commenced resided in Scotland, and still resides there. Naef v. Mutter, civ. 815 ; 12 C. B. N. S. 815. Reasonable efforts must be made to serve the declaration before the service will be waived by the court. Thelwall v. Yelverton, cvi. 894 ; 13 C. B. N. S. 894. Under Act 1854, c. 125, s. 21, judge cannot reserve questional to admissibility of document unless he decides against it. Cory v. Davis, cviii. 370 ; 14 C. B. IS;. S. 370. Under s. 17 of the Act of 1852, the affidavit should satisfy the judge that all that could reasonably be done to serve defendant personally, or find his dwelling place, has been done. Davies v. W estmacott, xcvii. 829 ; 7 C. B. N. S. 829. C. L. PROCEDURE ACTS, XXI., XXII. CONDITION, I. 103 XXI. Process. To dispense with personal service of summons upon one of two partners it is not enough to show that he, is abroad, has no residence here, and that the other was served. Kitchin v. Wiison, xciii. 483 ; 4 C. B. N. S. 483. Sections 18 & 19 of 15 & 16 Vict. c. 76, do not apply to the case of foreign cor- porations. Ingate v. Lloyd Austriaco, xciii. 704 ; 4 C. B. N. S. 704. A writ of summons is not a " summons" within s. 53 of 19 & 20 Vict. c. 47. Towne v. Limerick Steamship Co. xciv. 730 ; 5 C. B. N. S. 730. Process served is not binding on an infant, as it is with married women under Act 1852. Jarman v. Lucas, cix. 474 ; 15 C. B. N. S. 474. Under 15 & 16 Vict. c. 76, s. IS, where there is a writ for service out of the jurisdiction and no actual service, the court set aside the writ and subsequent proceedings. Thelwall r. Yelverton, cxi. 813 ; 16 C. B. N. S. 813. So, also, where the declaration showed that the proceeding was for an amount partly costs of a judgment in Ireland, it is not " a cause of action within the jurisdiction" within said section. Ibid. Quaere, whether suit would be good for the amount of the original cause of action. Ibid. XXII. Other matters. "Whether document properly stamped to be determined by judge at nisi prius. Siordet v. Kuczynski, lxxxiv. 250 ; 17 C. B. 250. Tattersall v. Eearnley, lxxxiv. 368 ; 17 G. B. 368. Meaning of word " bind" in Act of 1854, s. 62. Holmes v. Tutton, lxxxv. 65 ; 5 E. & B. 65. Where attorney suing in person endorses on writ his place of business as his residence it is sufficient. Ablett v. Basham, lxxxv. 1019 ; 5. E. & B. 1019. Allocatur ordered to be produced to show taxation of costs by master. Ashcroft v. Foulkes, lxxxvi. 261 ; 18 C. B. 261. Common Law Procedure Act has not changed the rule against granting new trial where verdict under 201. Hawkins ti. Alder, lxxxvi. 640 ; 18 C. B. 640, Service of rule for examination of defendant on his wife not sufficient. Mason v. Muggeridge, lxxxvi. 642 ; 18 C. B. 642. Where case tried before commissioner of nisi prius by consent, not in writing, and without an order, parties precluded. Andrews v. Elliott, lxxxv. 502 ; 5 E. 6 B. 502. Affirmed in Exchequer Chamber, lxxxviii. 338 ; 6 E. & B. 338. Under sect. 61 of the Act of 1852, the declaration in libel need not state any colloquium. Hemmings v. Gasson, xcvi. 346 ; E.. B. & E. 346. Where plaintiff having commenced proceedings in law and equity, elects under the Act of 1852 to proceed in equity, defendant may insist on those in law being brought to an end. Mortimore ». Soares, cii. 399 ; 1 E. & E. 399. Counsel may call the attention of the court to the insufficiency of a stamp. Austin v. Bunyard, cxviii. 687 ; 6 B. & S. 687. CONDITION. I. What words amount to. III. Condition precedent. II. Construction of. IV. Waiver. I. What words a;viount to. Where a surety entered into a bond for 1000Z., to secure advances to the prin- cipal on the faith of a collateral agreement that the advances should be limited to 950Z., and if they exceeded 1000^. for a month without reduction, notice should be given, it was held that the limitation and notice were not conditions the breach of which avoided the bond. Gordon i\ Kae, xcii. 1065; 8 E. &,. B. 1065. In a lease, the words " the said A. hereby agrees that he will not underlet the 104 CONDITION, I.— III. said premises without the consent, &c, of the landlord," do not amount to a condition. Shaw v. Coffin, cviii. 372 ; 14 C. B. N. S. 372. Devise of residue upon " express condition" in case of failure of personalty, to pay certain legacies within a year, held, under construction of the will to be a trust and not a condition. "Wright v. Wilkin, ex. 232 ; 2 B. & S. 232. The heir, therefore could not enter for condition broken. Ibid. "Word " condition" construed in an agreement for leasing not under seal as a stipulation. Hayne v. Cummings, cxi. 421 ; 16 C. B. N. S. 421. Condition implied in contract of hiring of menial servants to allow determi- nation of contract at month's notice by either party. Nicoll v. Greaves, cxii. 27 ; 17 C. B. N. S. 27. II. Construction of. On an advance note by the master of a vessel promising to pay, ten days after sailing, to any one who should advance to H. 67., provided II. sailed, held that an advance of 31. 5s. cash, and 21. 15s. worth of clothing, fulfilled the condition, though for all cash 7J per cent would have been charged. M'Kune v. Joynson, xoiv. 218; 5 C. B. N. S 218. An acceptance of a bill of exchange, as payable on the giving up of a certain bill of lading, is conditional upon the surrender of the bill of lading, but not its surrender on the day of the maturity of the bill of exchange. Smiuh v. Vertue, xcix. 214 } 9 C. B. N. S. 214. Where the condition of a bond was that for each unpaid instalment the obligees should receive " Is. in the pound for each and. every pound" left unpaid, they were not entitled to anything for unpaid fractional parts of a pound. Three Towns Society v. Doyle, cvi. 290 ; 13 C. B. N. S. 290. What arc just and reasonable conditions, limiting liability of carrier, under 17 & 18 Vict. c. 31, s. 7. Aldridge v. G. W. Kailway Co., cix, 582 ; 15 C. B. N. S. 582. What is a reasonable condition, under 17 & 18 Vict. c. 31, s. 7 (Railway and Canal Traffic Act). Harrison v. L. & B. Railway, ex. 122 ; 2 B. & S. 122. Condition in policy of insurance against particular mode of death, qualified by subsequent language of policy. Fitton v. Accidental Death Ins. Co., cxii. 122 : 17 C. B.N. S. 122. Stipulation in contract for work for other party, if dissatisfied, to enter upon and finish work and deduct costs from price to be paid, is good. Stadbard v. Lee, cxiii. 364 ; 3 B. & S. 364. III. Condition precedent. Where ship to be in every way fitted for her voyage, and one-fourth of freight to be paid on her having sailed, held that her being fit was condition precedent to right to recovery. Thompson v. Gillespy, lxxxv. 209 ; 5 B. & B. 209. On agreement that the plaintiff should procure letters patent and immediately afterward assign an interest to the defendant, who was to pay expense of procur- ing them, held that the assignment was condition precedent to the payment. Hill v. Mount, lxxxvi. 72 ; 18 C. B. 72. On policy providing that if ship be mortgaged the owner should have no claim, unless mortgagee give an undertaking to pay all sums to become due, giving the undertaking is a condition precedent. Hughes r. Tindall, lxxxvi. 98 ; 18 C. B. 98. Where plaintiff agreed forthwith to procure and load vessel, for which defend- ant to pay in instalments, the first coming due seven days after arrival at the wharf, and bonds were to be given within ten days of agreement for its due per- formance, held that giving bond was condition precedent to recovery. Roberts u. Brett, lxxxvi. 561 ; 18 C. B. 561. Affirmed in Exchequer Chamber, xcv. 611 ; 6 C. B. N. S. 611. In a guarantee of payment on December 13th then next in consideration of plaintiff's forbearing to sue A., forbearance until that date is condition precedent Bolt v. Cozens, lxxxvi. 673 ; 18 C. B. 673. Sembh, that forbearance until that date only is meant. Ibid. Where defendant agreed to grant a lease to plaintiff for five years at certain rent, and at expiration of the term to pay all moneys expended on the land, plaintiff having occupied under the contract it was held the granting a lease was CONDITION, III. 105 not a condition pi'ecedent to recovery of expenses. Bowes v. Crolls, Ixxxviii. 255 ; G E. & B. 255. Where defendant agreed to advance to master half of the freight on the bills of lading being signed, and accepted a draft in favor of plaintiff payable on the vessel "being loaded and sailed, out of the advance," the sailing is condition precedent. Hudson v. Bilton, Ixxxviii. 565 ; 6 E. & B. 565. Defendant may bona fide reject a carriage which plaintiff agreed to build to suit his convenience and taste. Andrews o. Belfield, lxxxix. 779 : 2 C. B. N. S. 779. "Where plaintiff was to receive commissions on the invoice prices, the produc- tion of the invoices is not a condition precedent to his right to recover for breach. Plank v. Gavila, xci. 807 ; 3 C. B. N. S. 807. Statements of facts by the party interested in a policy of life insurance do not form the basis of the contract unless it be so stipulated. Wheelton v. Hardisty, xcii. 232 ; 8 E. & B. 232. Sale of goods to be delivered on the arrival of a certain ship is conditional on the arrival, but not on the ship's containing the goods. Hale v. Rawson, xciii. 85 ; 4 C. B. N. S. 85. Where the contract provides for a specified extension of time on the payment of interest on the amount, the payment of interest is not a condition precedent. Dodd v. Ponsford, xcv. 324 ; 6 C. B. N. S. 324. In a policy of life assurance construed to be an annual policy "with the premium payable quarterly, it was held that express words were necessary to make the payment at the quarter a condition precedent to the continuance of the policy. Sheridan v. Phoenix Life Assurance Co., xcvi. 156 ; E., B. & E. 156. Plaintiff guaranteed to defendant that B. would pay two bills for 100Z. and 62Z., and defendant guaranteed to plaintiff the repayment of 3001. for goods ordered by C., held that the consideration was the promise and not the performance and that the payment of the bills by B. was not condition precedent to plaintiff's right to recover. Christie v. Borelly, xcvii. 561 ; 7 C. B. N. S. 561. Covenants in a charter-party held not to be conditions precedent though it stated that the freight was to be paid in consideration therefor. Seeger v. Duthie, xcviii. 45 ; 8 C. B. N. S. 45. Where there was a contract to light the parish lamps from sunset to sunrise with gas sufficient in quantity and quality, for which a certain sum was to be paid for each lamp, lighting all the lamps is not a condition precedent to recovery. London Gaslight Co. v. Chelsea, xcviii. 215 ; 8 C. B. N. S. 215. On a promise to pay plaintiff an annuity in consideration of his marrying, until his income as a chancery barrister should be 600 guineas, continuing to practice as a barrister is not a condition precedent to recovery. Shadwell v. Shadwell, xcix. 159 ; 9 C. B. N. S. 159. Agreement by defendant company to pay for work and materials and by plain- tiff to guarantee a certain annual dividend held to be independent contracts. Stears v. South Essex Gaslight Co., xcix. 180 ; 9 C. B. N. S. 180. Where passenger's ticket provided that the ship not accountable for luggage unless bills of lading signed, each passenger allowed twenty feet of luggage free, held that, without bill of lading, company not liable for loss caused by negligence of captain. Wilton v. Atlantic R. M. Steam Co., c. 453 ; 10 C. B. N. S. 453. An agreement being that plaintiffs undertake to solicit the passage of a bill, and in the event of -failure to charge for their work and expenditure only 3001. to defendants, they must use all proper endeavors and provide the means before they can claim the 3001. Leakey v. Lucas, c. 734 ; 10 C. B. N. S. 734. On an agreement by defendant to buy a lease subject to his approval as tenant by A., and to pay 500Z. as soon as his banker could remit, disapproval by A. before remission and demand is a bar to recovery. Davis v. Nisbett, c. 752 ; 10 C. B. N. S. 752. In an insurance contract to pay such sum as should be ascertained in case of dispute by reference, the reference is a condition precedent. Braunstein v. Accidental Death Ins. Co., ci. 782; 1 B. & S. 782. Where the charter-party states that the ship is at a certain place and will pro- ceed "' with all possible dispatch," her being at that place is not a condition pre- cedent to recovery. Belm v. Burness, ci. 877 ; 1 B. & S. 877. 106 CONDITION, III. On a contract for service for a term, readiness and willingness to serve are a condition precedent to recovery of wages. Cuckson v. Stones, cii. 24b ; 1 E. & E. 248. In a lease for lives containing a covenant to repair, having or taking certain botes without waste, it is not a condition precedent that there should be botes. Dean of Bristol ». Jones, cii. 484 ; 1 E. & B. 484. A condition in a fire insurance policy that notice of the loss shall be delivered within fifteen days after the fire, is a condition precedent. Roper v. Lendon, cii. 825 ; 1 E. & E. 825. Alikr, as to a condition that in case of difference it shall be submitted to arbi- trators. Ibid. When advances are to be made in consideration of certain parties making an assignment in trust, there is no obligation to make the advances until all the parties, who were to make the assignment, have executed the deed. Lascaridi v. Gurney, ciii. 890; 11 C. B. N. S. 890. A contract to sell a cargo "shipped as per bill of lading, dated September or October" does not entitle buyer to rescind, where all the cargo was not shipped before bill of lading was given but was on board before date of contract. Gat- torno v. Adams, civ. 559 ; 12 C. B. N. S. 559. A guaranty to indemnify, for discounting bills for a specified time, becomes irrevocable only when plaintiff has acted on it, and then only to extent of bills discounted. Offord v. Davies, civ. 748 ; 12 C. B. N. S. 748. On a written agreement, in consideration of transferring an interest in a com- pany, plans, &c, to pay 6001, "provided my friends succeed in carrying out the undertaking," part on the first portion of the land being acquired by the company, and the balance out of first payment received on construction account ; to which was subsequently added in writing, that the money was to be payable, on obtain- ing the act, half in six months, and the residue in instalments, held that defend- ant's liability was contingent on his friends carrying out the undertaking. Bruff v. Conybeare, cvi. 263 ; 13 C. B. N. S. 263. On an agreement to do certain work for a money consideration, and within ten days to give a bond for due performance, the giving of the bond held to be con- dition precedent to recovery. Roberts v. Brett, cvi. 889 ; 13 C. B. N. S. 889. Mere sketches are not directions of architect within contract authorizing alter- ations or additions. Myers v. Sari, cvii. 306 ; 3 E. & E. 306. There is no implied condition in suit for average loss against owner of cargo by shipper that the vessel should be seaworthy. Schloss v. Heriot, cviii. 59 ; 14 C. B. N. S. 59. Where by contract one party is to use reasonable endeavors to obtain an act of parliament, it is a condition precedent to their right of recovery. Leakey v. Lucas, cviii. 491 ; 14 C. B. N. 8. 491. A mere agreement that deeds shall be executed in duplicate will not be suffi- cient to create condition and cause it to be considered in escrow. Kidner v. Keith, cix. 35; 15 C. B. N. S. 35. Qucere, as to liability of Board of Health to contractor for sewers, &c, where payment by owner of property is made a condition precedent. Worthington v. Sudlow, ex. 508 ; 2 B. & S. 508. Stipulation in agreement for leasing that necessary work is to be done by specified time is a condition precedent. Tidey v. Mollett, cxi. 298 ; 16 C. B. N. S. 298. Where payment is to be precedent to delivery of goods by agent, it is violation of condition to deliver them without payment. Stearine, &c. Co. v. Heintzmann, cxii. 56;_17C. B. N. S. 56. There is no condition that goods insured for sea voyage shall be fit for vicissi- tudes of voyage. Koebel v. Saunders, cxii. 71 ; 17 C. B. N. S. 71. When there is condition precedent in guaranty, performance must be shown before recovery. Hill v. Nuttall, cxii. 262 ; 17 C. B. N. S. 262. What constitutes condition in guaranty. Ibid. A precedent or contemporaneous collateral oral agreement, not inconsistent with subsequent written agreement, held good and binding as a condition prece- dent. Lindley ». Lacey, cxii. 578 ; 17 C. B. N. S. 578. In charter-party. Behn v. Burness, cxiii. 751 ; 3 B. & S. 751. Implied condition of existence of subject-matter of contract at time of per- CONDITION III., IV. CONFLICT OF LAWS, I.— IV. 107 formance from terms of contract. Taylor v. Caldwell, cxiii. 826 ; 3 B. & S. 826. J When a contract provides for the production of surveyor's certificate that the work has been done to his satisfaction, no recovery can be had without such certificate being first produced. Clarke v. Watson, cxiv. 278 ; 18 C. B. N. S. 278. And it will make no difference that it is alleged that the surveyor wrongfully refused to give such certificate. Ibid. A stipulation in a contract solely for benefit of vendors, held not to be a con- dition precedent. Neill v. Whitworth, cxiv. 435 ; 18 C. B. N. S. 435. It is not a condition precedent to recovery on a charter-party that the ship should take a cargo not less than the number of tons specified. Pust v. Dowie, cxvii. 20; 5B. & S. 20. Not a condition precedent to recovery on a policy of insurance that the ship should be loaded at the place therein named. Carr v. Montefiore. cxvii. 408 ; 5 B. & S. 408. IV. Waiver. Quaere, whether distress for rent is a waiver of forfeiture of license. Ward v. Day, cxvi. 337 ; 4 B. & S. 337. Even though distress be illegal, it not being a lease. Ibid. It is a waiver where parties treat the license as subsisting. Ibid. CONFLICT OF LAWS. I. Admiralty. IV. Judgment of foreign court. II. Contract. V. Laws of foreign country. III. Insolvent. I. Admiralty. The rights of the parties to a contract are to be judged by that law by which they may justly be presumed to have bound themselves. Lloyd v. Guibert, cxviii. 100 ; 6 B. & S. 100. Where the contract of affreightment does not provide otherwise the law of the ship should govern between the parties in respect to sea damage and its inci- dents. Ibid. One who relies on a foreign law is bound to bring it properly before the court and establish it in proof. Ibiii. II. Contract. Lex loci contractus governs as to construction of. Branley v. S. E. Railway Co., civ. 63; 12 C. B. N. S. 63. To same effect, see Scott v. Pilkington, ex. 11 ; 2 B. & S. 11. Where it appears that by law of Scotland only the balance due can be reco- vered, only that amount can be recovered in England, on a Scotch contract. MacFarlane v. Norris, ex. 783 ; 2 B. & S. 783. It seems that ordinarily set-off is matter of procedure, and that as to such lex fori will govern. Ibid. III. Insolvent. Discharge of debtor by insolvent court in one of the colonies for debt con- tracted and payable there, is a discharge in England. Gardiner v. Houghton, ex. 743 ; 2 B. & S. 743. IV. Judgment of foreign court. Judgment of foreign court conclusive as to matters which could have been pleaded as defence in original suit. Vanquelin v. Bouard. eix. 341 c. ; 15 C. 13. N. S. 341 c. Foreign judgment as to matters within their jurisdiction conclusive both as to law and fact. Scott v. Pilkington, ex. 11 ; 2 B. & S. 11. 108 CONFLICT OF LAWS, IV., V. CONTEMPT, I, II. Doctrine discussed in Am. Ed. note. Ibid. A plea that an appeal had been taken in the case is no bar, although perhaps court would control the execution. Ibid. V. Laws of foreign country. Where by law of foreign country parties acquire a right to property and to sue in their own right, it will be recognised here. Vanquelin v. Bouard, cix. 341c; 15 C. B.N. J3. 341c. CONFUSION OF GOODS. It seems, where tallow flowed from burning warehouses and became confused, the owners became tenants in common in equal portions. Buckley v. Gross, cxiii. 566 : 3 B. & S. 566. CONSTABLE. Sergeants-at-mace appointed by borough under its charter are not constables under 5 & 6 Wm. 4, c. 76, prohibited from voting by 19 & 20 Vict. c. 69, s. 9. De Boinville v. Arnold, lxxxvii. 3 ; 1 C. B. N. S. 3. County constabulary not rateable to the poor. Lancashire v. Stretford. xcvi. 225 ; E., B. & E. 225. Under 5 & 6 Vict. c. 109, the discretion rests with the justices to determine the number of parochial constables. Regina v. North Bierley, xcvi. 519 ; E., B. & E. 519. Constable is entitled to a reward offered for apprehension of a thief, though he had arrested before he saw the notice of reward, and did not inform defend- ant till afterwards. Neville v. Kelly, civ. 738 ; 12 C. B. N. S. 738. A constable is not bound to apprehend a person charged with having wilfully neglected to support his wife, under 5 Geo. 4, c. 83, where the person has not been " found offending" by him. Horley v. Rogers, ev. 674; 2 E. & E. 674. Cannot arrest without warrant in possession, on bastardly order. Galliard v. Laxton, ex. 363 ; 2 B. & S. 363. In an action 1 of replevin against constable having made a distress, no notice of action or demand of warrant is necessary, under the statutes. Gay v. Matthews, cxvi. 425, 440 ; 4 B. & S. 425, 440. CONTEMPT. I. What constitutes. III. Other matters. II. Attachment for contempt. I. What constitutes. When non-delivery of papers under order of court will be excused in solicitor. Williams©. Smith, cviii. 596 ; 14 C. B. N. S. 596. A barrister may be punished for contempt, for language used in the discharge of his functions as an advocate. Ex parte Pater, cxvii. 299 ; 5 B. & S. 299. II. Attachment for Contempt. There must be service of the rule and personal demand for compliance, before CONTEMPT, II., III. CONTRACT, I. 109 attachment for disobedience, and an expressed intention to disobey is not enough. Swinfen v. Swinfen, lxxxvi. 485 ; 18 C. B. 485. Common Pleas may issue an attachment on rule, upon an issue directed by Court of Chancery. Ibid. Vide lxxxvii. 364 ; 1 C. B. N. S. 364. On rule upon attorney to answer certain affidavits, he not appearing after being called three times, an attachment issued. Easton v. Neville, lxxxvi. 548 ; 18 C. B. 548. Court refused to dispense with personal service in attachment, for disobedience of a rule. Swinfen v. Swinfen, lxxxyii. 364; 1 C. B. N. S. 364. Attachment for disobedience not granted, where one member of the court thought party not bound by the rule. Ibid. When solicitor not liable for attachment for non-delivery of papers under order of court. Williams v. Smith, cviii. 596 ; 14 C. B. N. S. 596. III. Other matters. A court of assize is a superior court and the judge may commit for contempt without being subject to review. Ex parte Fernandez, c. 3 ; 10 C. B. N. S. 8. The House of Keys, of the Isle of Man, as a legislative body, has no power to punish for contempt, and such power is not given by the Manx Act of 1817. Ex parte Brown, cxvii. 280 ; 5 B. & S. 280. The Quarter Sessions has inherent power to punish for contempt, but the Queen's Bench may interfere to prevent usurpation. Ex parte Pater, cxvii. 299 ; 5 B. & S. 299. CONTEACT. I.' Consideration. (a) Sufficiency of. (6) Illegality of. II. How Contract avoided. (a) Illegality of consideration. (6) In restraint of trade. (e) Champerty. id) Maintenance. (e) Infancy. (/) Liability of infant for ne- cessaries. (g) Defect of title. (A) Warranty. (i) Other matters avoiding Con- tract. III. Rescission, IV. Construction of Contract. (a) Generally. lb) Parties. (c) What constitutes. (d) Authority. (e) By letter. (/) Collateral. (g) Alteration and substitution. (A) Divisible or not. (i) Meaning of words. (k) Mercantile. (I) Particular phrases. (m) Generality restrained. In) Time. (o) Subject-matter. \p) Quantity. (q) Effect of consideration. (r) Price. (s) Stipulation for payment.. (t) Stipulation for valuation or estimate. (m) Performance. (v) Breach. (x) Condition precedent. It/) Mutuality. (2) Implied. V. Statute of Frauds. (a) Contracts relating to realty. (b) What is promise for the debt of another. (c) Contract not to be perform- ed within a year from the making. (d) Contract for sale within Statute of Frauds. , (e) Delivery and acceptance within the exception to the 17th section. [(f) Goods, wares and merchan- dise within meaning of 17th section. (g) Sufficient note in writing within 17th section. (A) Contract in writing within 4th section. VI. Remedy for breach of Contract. (a) Generally. (6) Pleadings. (c) Damages. 110 CONTKACT, I. (a). I. Consideration. (a) Sufficiency of. In order to make future services good consideration for a promissory note there must have been a contract for them. Hulse v. Hulse, lxxxiv. 711 ; 17 C. B. 711. Railway company advertising train on time table responsible to one who relies on it. Denton v. G. N. Railway Co., lxxxv. 860 ; 5 B. & B. 860. Where defendant was sued as acceptor of bill of exchange given in renewal of another bill, on which his acceptance had been forged, but which he had in- spected and retained thirty days before notice to plaintiff, held no defence. Mather v. Maidstone, lxxxvi. 273 : 18 C. B. 273. In a suit for the use of a patent right under agreement it is no defence that the patent was void. Lawes v. Purser, lxxxviii. 930 ; 6 B. & B. 930. Agreement to accept a smaller sum in satisfaction of greater, not good. Hall t. Conder, lxxxix. 22 ; 2 C. B. N. S. 22. W,here articles, between owner of vessel and seaman, provided for transfer of crew to another vessel, and the master afterward agreed to pay seaman larger sum upon his transfer, it was without consideration. Frazer v. Hatton, lxxxix. 512; 2C. B. N. S. 512. Call on a subscription contract to provide means for paying expenses of organ- izing a company enforced, though the scheme abandoned and the company not provisionally registered at time of suit. Aldham v. Brown, xc. 164 ; 7 E. & B. 164. Where a vessel was at a port, unseaworthy for want of hands, a contract with the seamen to increase their wages for the rest of the voyage, held good. Hartley v. Ponsonby, xe. 872 ; 7 E. & B. 872. Forbearance to a third person is a sufficient consideration for a promissory note, though the motive of the defendant is based on a mistake. Balfour v. Sea Fire Life Assurance Co., xci. 300; 3 C. B. N. S. 300. Rule that shareholder may recover from the directors the price of his shares, if all the shares not subscribed for, applies to a cost book mine. Johnson v. Goslett, xci. 569 ; 3 C. B. N. S. 569. Suffering defendant to retain bills belonging to plaintiff is sufficient considera- tion for a promise to apply the proceeds, if discounted, in a certain way. Hart v. Miles, xciii. 371 ; 4 C. B. N. S. 371. An indenture of apprenticeship made with a charitable society, though void because full consideration not shown, is a sufficient consideration for a promise on the part of the father of the apprentice to pay an additional sum. Westlake v. Adams, xciv. 248 ; 5 C. B. N. S. 248. Advancing costs to an attorney, upon an understanding that in the event of his obtaining costs by decree they shall be returned, is a good consideration. Morgan v. Taylor, xciv. 653 ; 5 C. B. N. S. 653. Agreement by a mother to take charge of and supply with necessaries her illegitimate children, is a sufficient consideration for a promise by the father to pay an annuity. Smith v. Roche, xcv. 223 ; 6 C. B. N. S. 223. And the death of one of the children does not relieve him. Ibid. Agreement by one in the employ of plaintiffs in another capacity to travel as salesman for a certain salary, and in the event of his travelling for any other house over any part of the same ground to forfeit 50Z., is based on sufficient con- sideration. Mumford v. Gething, xcvii. 305 ; 7 C. B. N. S. 305. Mere expectation of anticipated future services not sufficient. Gorgier v. Mor- ris, xcvii. 588 ; 7 C. B. N. S. 588. Letter from an uncle, saying '' I am glad to hear of your intended marriage," '" and as I promised to assist you at starting, I will pay you 150Z. yearly," dis- closes a binding promise for a good consideration. Shadwell v. Shadwell, xcix. 159 ; 9 C. B. N. S. 159. Promise not to enforce a covenant is sufficient consideration for a parol agree- ment. Nash v. Armstrong, c. 258 ; 10 C. B. N. S. 258. Compromise of a claim bona fide made is a good consideration though before suit, and though it might have been successfully resisted. Cook v. Wright, ci. 559 ; 1 B. & S. 559. When a brother voluntarily buries a sister, who has been living apart from CONTRACT, I. (a), (J), II. (a), (6). Ill her husband, without any fault of the husband, ho is entitled to sue the husband for the expenses of tho"funeral. Bradshaw v. Beard, civ. 344; 12 C. B. N. S. 344. An agreement between a mother and putative father to release the latter from all future payments, in respect of their illegitimate child, in consideration of a present payment, is not against public policy, and is valid. Follit v. Koetzow, cv. 730 ; 2 E. & E. 730. A will of doubtful validity, being in possession of A., it was arranged that it should be placed in the hands of B., upon C. giving a note to secure the legacy of A., and when the note should be paid, the will to be given up to C. ; held a good consideration for the note. Smith v. Smith, cvi. 418 ; 13 C. B. N. S. 418. (b) Illegality or. AVager is not an illegal, but a void consideration. Fitch v. Jones, lxxxv. 238 ; 5 E. & B. 238. For a British subject, not domiciled ina neutral country, to ship cargo in an enemy's port on a neutral vessel, is illegal. Exposito v. Bowden, xc. 763 ;■ 7 E. 6 B. 763. It is not illegal, nor in violation of 49 Geo. 3, u. 126, to sell volunteer uniforms with the intent that the purchaser might obtain a military commission. Eicke v. Jones, ciii. 630 ; II C. B. N. S. 630. Underwriters not liable to assured, where insurance is illegal, under 16 & 17 Vict. ov. 107, and where assured are privy to violation of the statute. Cunard v. Hyde, ov. 1 ; 2 E. & E. 1. Notes given to creditor to induce him to sign composition deed, consideration illegal. Clay v. Ray, cxii. 188 ; 17 C. B. N. S. 188. Am. Ed. note on illegality of consideration in contract ; in what criminal cases permitted. Clubb v. Hutson, cxiv. 417 ; 18 C. B. N. S. 417. Consideration of forbearance to prosecute charge of obtaining money under false pretences, is illegal. Clubb v. Hutson, cxiv. 414 ; 18 C. B. N. S. 414. II. HOW CONTRACT AVOIDED, (a) Illegality op consideration. Defendant gave I. O. U. for stakes lost at billiards ; held gaming, within 8 & 9 Vict. c. 109, s. 18, and not contribution, within proviso. Parsons v. Alexander, lxxxv. 263 ; 5 E. & B. 263. Deed transferring vendor's interest in goods, and giving vendee right to enter and take possession, including substituted goods, under which vendee afterward, with consent of vendor, took possession, gave good title to substituted goods. Hope v. Hayley, lxxxv. 830 ; 5 E. & B. 830. A bill, in consideration of allowing bankrupt's certificate, accepted in blank by the bankrupt before, but not drawn or dated until after the certificate, is not a void security, within sect. 202 of 12 & 13 Vict. c. 106. Goldsmid v. Hampton, xciv.94; 5 C.B.N. S. 94. A contract in contravention of the Metropolitan Building Act, 18 & 19 Vict. c. 122, cannot be enforced. Stevens v. Gourley, xcvii, 99 ; 7 C. B. N. S. 99. A sale of slaves in a country where such a contract is lawful, by a British subject, who purchased them after 5 Geo. 4, c. 113, and before 6 & 7 Vict. c. 98, may be enforced. Santos v. Illidge, xcviii. 861 ; 8 C. B. N. S. 861. Reversing Common Pleas, xcv. 841 ; 6 C. B. N. S. 841. When bonds of a railway company issued by the directors are ultra vires and void. Chambers v. M. & M. Railway Co., cxvii. 588 ; 5 B. & S. p88. (5) In restraint of trade. A combination of masters allowing majority to determine wages, hours of work, management of establishment, &c, is illegal. Hilton v. Eckersley, Ixxxviii. 47 ; 6E. &B.47. Agreement that, in the event of defendant's travelling for any other house over any part ef the same ground, he will forfeit 50Z.. is not void, as being in restraint of trade. Mumford v. Gething, xcvii. 305; 7 C. B. N. S. 305. An agreement for an increased rent in the event of the imposition of tax, is not prohibited by 5 & C Vict. c. 35, s. 73. Colbron v. Travers, civ. 181 ; 12 C. B. N. S. 181. 112 CONTRACT, II. (6)— (4). A contract for payment of money in consideration of the resignation of a majority in the service of East India Company, is illegal, under 49 G. 3, u 126 Eyre v. Forbes, civ. 191 ; 12 C. B. N. S. 191. (c) Champerty. Agreement to supply certain documents, and if through them defendant should come into possession of property, plaintiff to have one-fifth, is not champerty Spryo v. Porter, xc. 58 ; 7 E. & B. 58. But aliter, of an agreement to supply information and evidence by means of which if proceedings should be commenced defendant might successfully recover property. Ibid. Transfer of the subject-matter of a suit to an attorney as security for his work, &c, is not invalid. Anderson v. Radcliffe, xcvi. 806 ; E., B. & E. 806. An agreement as to fees between attorney and client for half the sum to be recovered, made in foreign country and valid there, is void in England. Grell v. Levy, cxi. 73 ; 16 C. B. N. S. 73. (d) Maintenance. Agreement in consideration of advances to pay an attorney above his costs a sum sufficient to compensate and reward him and proportionate to benefit to client, is void for maintenance. Earle v. Hopwood, xcix. 566 ; 9 C. B. N. S. 566. (e) Infancy. Third person cannot object to contract on ground of infancy of party. Doug- las v. Watson, Ixxxiv. 685 ; 17 C. B. 685. (/) Liability of infant for necessaries. Quaere, whether infant liable for hiring horse as necessaries. Burnard v. Haggis, cviii. 45 ; 14 0. B. N. S. 45. Infant female liable to solicitor for preparing marriage settlement. Helps v. Clayton, cxii. 553 ; 17 C. B. N. S. 553. (g) Defect of title. What expenses vendee may recover from vendor on failure of title. Sikes v. Wild, cxvi. 421 ; 4 B. & S. 421. (h) Warranty. Sale of goods where no opportunity for inspection implied warranty against such admixture of foreign substance as would alter distinctive character. Wieler v. Schilizzi, Ixxxiv. 619 ; 17 C. B. 619. Description of vessel in charter-party as A. No. 1, no warranty she will remain so during the voyage. Hurst v. Osborne, lxxxvi. 145 ; 18 C. B. 145. Where specific patented article ordered, representations made by vendor not a warranty. Prideaux v. Bunnett, Ixxxvii. 613 ; 1 C. B. N. S. 613. Description of tonnage in charter-party no warranty. Barker v. Windle, Ixxxviii. 675 ; 6 E. & B. 675. No warranty on sale of patent that invention is new or valuable or that pat- entee is true and first inventor. Hall v. Conder, lxxxix. 22 ; 2 C. B. N. S. 22. Written contract for sale of a cargo of fair average Nicranzi rice, allowance for Larong or other inferior description, seller engaging to deliver what is ship- ped on his account, vessel at time of contract on her way to port of loading, held a warranty that rice is fair average Nicranzi. Simond v. Bradden, lxxxix. 324 ; 2 C. B. N. S. 324. Sale of goods " now on passage" is a warranty that they are then on passage. Gorrissen v. Perrin, lxxxix. 681 ; 2 0. B. N. S. 681. One who contracts as agent warrants his authority. Collen v. Wright, xc. 301 ; 7 E. & B. 301. Affirmed in Ex. Ch., xcii. 647 ; 8 E. & B. 647. Statement by the assured that he is not aware of any disorder tending to shorten his life, does not warrant the facts. Jones v. Provincial Insurance Co., xci. 65 ; 3 C. B. N. S. 65. Statements of fact by the party, interested in a policy of life insurance are not CONTRACT, II. (h), (i). n. '! a warranty of their truth unless it be so stipulated. Wheelton v. Ilardisty, xcii. 2 i'2 ; 8 E. & B. 232. When a skilled laborer, artisan or artist is employed, there is an implied -war- ranty of reasonable competence. Ilarmer r. Cornelius, xciv. 236 : 5 U. B. K. S. 236. Liability to loss gives a right to recover for breach of warranty. Randall v. Itaper, xevi. 84 ; E , B. & E. 84. Measure of damages where the goods have been sold by the warrantee is the difference between the contract price and the actual value. Dingle v. Hare, xcvii. 145 ; 7 C. B. N. S. 145. Where a cargo of wheat was bought afloat on the report and samples, held a warranty that the bulk corresponded with the report and samples. Russell v. Nicolopulo, xcviii. 362 ; 8 C. B. N. S. 362. Authority by a private owner to his servant to sell and deliver a horse does not imply a right to warrant. Brady v. Todd, xcix. 592 ; 9 C. B. N. S. 592. Where vendor, in sale by sample without fraud, makes a false statement as to quality, which the parties intend^shall be a part of the contract, vendee may re- pudiate. Bannerman v. White, c. 844 ; 10 C. B. N. S. 844. The warranty of one, who, bona fide, but without authority, makes a parol lease for seven years, does not extend to liability to the lessee for costs of an un- successful defence in ejectment, although he advised it. Pow v. Davis, ci. 220 ; IB. &S. 220. _ A tendency in a horse to shy, produced by natural malformation of the eye, is a breach of the warranty of soundness. Holliday v. Morgan, cii. 1 ; 1 E. & E. 1. Warranty free from seizure, in a marine insurance policy, includes a mutinous seizure by the passengers. Kleinwort v. Shepard, cii. 447 ; 1 E. & E. 447. A vendor selling, upon buyer's inspection and with a disclaimer of responsi- bility for quality, must, nevertheless, furnish an article which, in commercial language, comes within the description of the thing sold. Josling v. Kingsford, cvi. 447 ; 13 C. B. N. S. 447. Description as of a particular quality not a warranty. Hopkins v. Hitchcock, cviii. 65 ; 14 C. B. N. S. 65. Representation of depth of water in a dock sill amounts to warranty of same depth in entrance channel. Williams p. Swansea Trustees, cviii. 845 : 14 C. B. N. S. 845. Admissions in letters by master are evidence of authority of servant to give warranty of horse on sale. Miller v. Lawton, cix. 834 ; 15 C. B. N. S. 834. There is no warranty of seaworthiness of goods insured. Koebel v. Saunders, cxii. 71; 17 C. B. N. S. 71. > In a warranty of soap frames that they shall be new frames with all nuts and bolts complete and perfect, they must be fit for the purpose for which they were made. Mallan v. Radloff, cxii. 588 ; 17 C. B. N. S. 588. In a sale of goods in a shop there is an implied warranty of title. Eichholz v. Bannister, cxii. 708 ; 17 C. B. N. S. 708. Effect of warranty in charter-party and what amounts to. Behn v. Burness, cxiii. 751 ; 3 B. & S. 751. What can be left to jury to say whether it amounts to. Percival v. Oldacre, cxiv. 398 ; 18 C. B. N. S. 398. (i) Other matters avoiding Contract. Agreement to exchange benefices in their existing state and condition, and that one party should not demand of the other pay for repairs, is not necessarily simoniacal. Goldham v. Edwards, lxxxiv. 141 ; 17 C. B. 141. Addition of another party to a joint and several note is a material alteration. Gardner v. Walsh, lxxxv. 83 ; 5 E. & B. 83. Joint stock company liable on bond given by directors without authority to bona fide obligee. Bank v. Turquand, lxxxv. 248 ; 5 E. & B. 248. Affirmed in Ex. Ch. lxxxviii. 327 ; 6 E. & B. 327. Contract of trading corporation with relation to the purposes of the incorpora- tion binding though not under seal. Henderson v. Royal Mail Nav. Co. lxxxv. 409 ; 5 E. & B. 409. Agreement to purchase goods, paying a certain price if the vendor was right Tol. III.— 8 114 CONTRACT, II., ($. as to a disputed fact, and another lower price if vendee right,' a wagering and voidable contract. Rourke v. Short, lxxxv. 904 ; 5 E. & B. 904. Money derived from transactions in stocks not bona fide sales but settlement of differences not recoverable. Nicholson v. Gooch, lxxxv. 999 ; 5 E. & B. 999. Who may set up illegality as defence. Ibid. Agreement to exchange benefices in their then condition and not to demand pay for repairs, not necessarily simoniacal. Goldham v. Edwards, lxxxvi. 389 ; J8C. B. 389. Contract made by president of trading corporation, by parol and ultra vires, but which was entered on the minutes, and under which company made pay- ments, ratified and binding. Reuter v. Electric Telegraph Co., lxxxviii. 341 ;6 E. &B. 341. Qucere, whether, where charter prevented company from giving preference, they could, on this ground, make defence to a contract. Ibid. Deed of release, executed with the sum in blank, is avoided by the releasee, con- trary to the intention of the releasor, inserting the full amount of the debt with- out deducting a setoff. Fazakerly v. McKnight, lxxxviii. 795 ; 6 E. & B. 795. Where the wrongful act of the insured was & cause, without which the loss of the vessel would not have happened, but was not the proximate cause, he cannot recover. Thompson v. Hopper, lxxxviii. 937 ; 6 E. & B. 937. Reversed in Exchequer Chamber, xcvi. 1038 ; E., B. & E. 1038. War imports a prohibition of commercial intercourse between the belligerents. Barrick v. Buba, lxxxix. 563 ; 2 C: B. N. S. 563. Attorney of record cannot purchase claim of client pendente lite. Simpson v. Lamb, xc. 84; 7 E. & B. 84. Revival of life insurance after the expiration of the thirty days allowed for renewal, implies that the insured is then alive. Pritchard v. Life Assurance So- ciety, xci. 622 ; 3 C. B. N. S. 622. Contract of a joint stock company js valid, though not sanctioned by a meeting of shareholders, or executed by three directors as required by the deed of settle- ment. Agar v. Life Assurance Co., xci. 725 ; 3 C. B. N. S. 725. Contracts of a dock company, not a trading corporation, must be under seal. London Dock Co. v. Sinnott, xcii. 347 ; 8 E. & B. 34J. Description of the residence of the witness to a bill of. sale as being the office where he spent the day, is sufficient. Blackwell v. England, xcii. 541 ; 8 E. & B. 541. A deed amounting to a covenant, not to sue one of several joint contractorn, does not release the others. Willis v. De Castro, xciii. 216 ; 4 C. B. N. S. 216. Dealer in foreign shares is a broker within 6 Ann. c. 16, and cannot recover commissions unless licensed. Smith v. Lindo, xciii. 395 ; 4 C. B. N. S. 395. But he may recover from his principal the price of shares, which by custom he was compelled to pay. Ibid. Affirmed in Exchequer Chamber, xciv. 587 ; 5 C. B. N. S. 587. Contract for over 101. with the local board of health, not under seal, is void, under 11 & 12 Vict. c. 63 ; Frend v. Dennett, xciii. 576 ; 4 C. B. N. S. 576. Untrue statements, though immaterial and without intentional fraud, vitiate a policy of life insurance, which provides that in case of untruth it shall be void. Cazenove v. British Assurance Co., xcv. 437 ; 6 C. B. N. S. 437. A life assurance company, completely registered, under 7 & 8 Vict. c. 110, cannot avoid a contract because there had been no previous order sealed and under the hands of three directors, as prescribed in the deed of settlement. Prince of Wales Assurance Co. v. Harding, xcvi. 183 ; E., B. & E. 183. Non-compliance by the master with the provisions of 16 & 17 Vict. c. 107, does not defeat an insurance on the cargo, there being no privity between him and the insured. Cunard v. Hyde, xcvi. 670; E., B. & E. 670. That after promise of marriage and before breach defendant became afflicted with a disease, making him incapable of marriage without danger to life, and therefore unfit for the married state, is no defence. Hall v. Wright, xvci. 746 ; E., B. & E. 746. That at the time of the promise of marriage plaintiff was engagedto another person, which fact she did not disclose, and of which defendant was ignorant, is no defence. Beachey v. Brown, xcvi. 796 ; E., B. & E. 796. A. written contract, fixing a penalty if work not completed at a certain time, is CONTRACT, II. (»"). 115 waived in this respect by a subsequent parol agreement which the parties knew would prevent its completion on the day named. Thornhill v. Neats, xcviii. 831 : 8 C. B. N. S. 831. No recovery against joint stock company on a contract for work and materials, percentage on outlay, or money loaned in debenture, where plaintiff as a director voted on the contract and it was not afterward ratified by the shareholders. Stears v. South Essex Gaslight Co., xeix. 180 ; 9 C. B. N. S. 180. Where bonds of the corporation of London were charged on the tolls of the Thames, and subsequently an act of parliament took away the right of the cor- poration and appointed conservators of the Thames, charged with the duty of collecting and applying the tolls, it was held, that the obligation to pay had become impossible by act of law and was discharged. Brown v. Mayor of London, xcix. 726 ; 9 G. B. N. S. 726. Affirmed in Exchequer Chamber, cvi. 828 ; 13 C. B. N. S. 828. Prior temporary insanity of plaintiff no defence to an action for breach of promise of marriage. Baker t>. Cartwright, c. 124 ; 10 C. B. N. S. 124. Breach of agreement to enter into partnership not excused by the fact that plaintiff had acted with fraud and dishonesty to a former partner, which fact was unknown to defendant. Andrewes v. Garstin, c. 444 ; 10 C. B. N. S. 444. Agreement by a railway company to provide means by which their passengers and goods may be safely and speedily carried abroad, not ultra vires. S. W. Kailway Co. v. Redmond, c. 675 ; 10 C. B. N. S. 675. An instrument not under seal though void as a lease under 8 & 9 Vict. c. 106, s. 3, may be good as an agreement to make a lease. Bond v. Rosling, ci. 371 ; 1 B. & S. 371. 4 Geo. 4, c. 95, s. 78, authoi - izes two turnpike companies who have a portion of road in common to agree that one shall repair and the other contribute to- ward expense. Swinburne v. Robinson, cii. 80 ; 1 E. & E. 80. What agreement between directors of joint stock company as to shares not ultra vires. Haddon v. Ayers, cii. 118 ; 1 E. & E. 118. The affidavit to a bill of sale required by 17 & 18 Vict. c. 36, is sufficient if it furnish reasonable proof of the execution and attestation, and of the residence and occupation of the attesting witness. Routh v. Roublot, cii. 850 ; 1 E. & E. 850. Vendee may reject a crate containing other goods packed with those bought. Levy v. Green, cii. 969'; 1 E. & E. 969! Goods were shipped from London to Calcutta, " at 39s. per ton, payable in London ;'' under the evidence it was held a question for the jury whether there was a contract for " freight" or for a sum payable on receipt of the goods on board ship. Lidgett v. Perrin, ciii. 361 ; 11 C. B. N. S. 361. Contract to indemnify plaintiff against a bill accepted by him for the benefit of a third party, not invalidated because bill bears a different date from that named in the contract. Way v. Hearn, cvi. 292 ; 13 C. B. N. S. 292, Nor because bill renewed without knowledge of defendant. Ibid. Nor when made at request of defendant, because plaintiff, for a private reason, withheld a material fact. Ibid. An am-eement by a farmer of turnpike tolls compounding them at a certain rate is valid. Stott v. Clegg, cvi. 619; 13 C. B. N. S. 619. Bill of sale not invalid, under 17 & 18 Vict. 36, because the commissioner in the affidavit describes himself as of the exchequer. Cheney v. Courtois, cvi. 634 ; 13 C. B. N. S. 634. A contract of counsel with his client for fees is void. Kennedy v. Broun, cvi. 677 ; 13 C. B. N. S. 677. What avoids contract, and what does not. Am. Ed., note. Behn v. Burness, cxiii. 761; 3 B. & S. 761. Where, from the nature of the contract, it appears that parties presume the existence of some particular thing at time for performance of contract, it will be avoided by the destruction of the thing in the meantime. Taylor v. Caldwell, cxiii. 826 ; 3 B. & S. 826. Such a contract is subject to the implied condition that the thing shall exist. Ibid. Aliter, where there is a positive contract to do the thing. Ibid. 116 CONTRACT, III.— IV. (a). III. Rescission. Plain tiff cannot recover for the renunciation of a contract, if he afterward insisted on fulfilment. Avery v. Bowden, lxxxv. 714; 5 E. & B. 714 ; Reid v. Hoskins, lxxxv. 729 ; 5 E. & B. 729. Affirmed in Exeh. Chamber, lxxxviii. 953 ; 6 E. & B. 953. Contract of a British subject with a neutral, which cannot be executed without dealing and trading with the enemy, is dissolved. Esposito v. Bowden, xc. 763 ; 7 E. & B. 763. Where goods were delivered against the orders of the vendee, and he wrote to the vendor returning the draft, expressing willingness to return the goods and regret that his solicitor advised against it, and afterward vendor demanded them and was referred to the solicitor, it was held no rescission or stoppage in transitu. Heinekey v. Earle, xeii. 410 ; 8 E. & B. 410. One cannot rescind a contract, though induced by fraud, after by his own act he has become unable to restore the parties to their original situation. Clarke v. Dickson, xcvi. 148 ; E., B. & E. 148. Where, one party to a contract to be performed in the future notifies the other that he will not be bound by it, the other is entitled to treat such renunciation as a breach, without waiting for time of performance. Danube, &c, Railway Co. v. Xenos, ciii. 122 ; 11 C. B. N. S. 122. Where the holder of drafts cannot recover on them because he has failed to cancel the stamps, it is too late to sue for the consideration money after waiting a year. Pooley v. Brown, ciii. 566 ; 11 C. B. N. S. 566. Where master of a vessel after partly loading and grounding requests charterer to unload at his own expense, the latter is not liable for refusing to reload. Strugnell v. Friedrichsen, civ. 452 ; 12 C. B. N. S. 452. In contract for purchase of land when vendee would be affected with breach of trust on account of inadequacy of price, it can be rescinded, and money paid recovered back. Stevens v. Austen, cvii. 685 ; 3 E. & E. 685. Qucere, whether principal can rescind stock gambling contract, where broker, by usage of stock exchange, is compelled to pay at all events. Rosewarne v. Billing, cix. 316; 15 C. B. N. S. 316. Where letter is written refusing to receive more goods under contract, other party may treat contract as rescinded. Bartholomew v, Markwick, cix. 711 ; 15 C. B.N. S. 711. Where petroleum was to be delivered according to sample, and that is not done, contract can be rescinded. Borrowman v. Rossel, cxi. 58 ; 16 C. B. N. S. 58. Where option to rescind contract, for sale of real estate, is reserved by vendor it may be exercised within reasonable time. Vestry of Shoreditch v. Hughes, cxii. 137 ; 17 C. B. N. S. 137. And that though the lime for completion of contract has expired. Ibid. What constitutes reasonable time. Ibid. Vendee is not bound to accept goods when an excess of quantity is sent to him. Rylands v. Kreitman, cxv. 351 ; 19 C. B. N. S. 351. IV. Construction of Contract. (a) Generally. Tinder agreement that tenant should cultivate farm in the same way, or as near as circumstances would admit, as Parsons had cultivated same, and in all events according to rules of good husbandry in neighborhood, tenant had all the rights of Parsons. Hood v. Kendall, Ixxxiv. 260 ; 17 C. B. 260. Where seller executed transfer of shares in a joint stock company in blank, and they remained in his name on books of company, the buyer is not liable to him for calls he was subsequently compelled to pay. Walker v. Bartlett, Ixxxiv. 446 ; 17 C. B. 446. Vide lxxxvi. 845 ; 18 0. B. 815. Where A. agreed to build ship for B., and if not completed according to terms, B. should take possession and himself complete, using such materials of A. as should be applicable, and B. afterwards took possession, assorted A.'s material, put some of it within ship but did not attach, held not using the material, and that it belonged to A.'s assignees in bankruptcy. Baker v. Gray, Ixxxiv. 462; 17 C. B. 462. 'CONTRACT, IV. (o). 117 Where defendant engaged plaintiff to sell advowson upon a commission on purchase-money when safe effected, and afterward defendant himself sold, held that plaintiff was entitled to nothing. Simpson v. Lamb, lxxxiv. 603 : 17 C. B. 603. Unsealed written agreement to take a farm at yearly rent, tenancy to com- mence at a certain day for term of eight years, subject to a lease to be drawn, does not give right of possession but right to a lease. Drury v. Macnamara, lxxxv. 612 ; 5 E. & B. 612. Agreement that ship should proceed to Odessa and there load, but if, when she arrived at Constantinople, war had commenced, she should load at that city, held to mean war between England and Russia. Avery v. Bowden, lxxxv. 714 ; 5 E. & B. 714. Affirmed in Ex. Ch., lxxxviii. 953 ; 6 E. & B. 953. Where A. orders vessel to be built by shipbuilder, to be paid for in instalments and superintends erection, and builder punches A.'s name in her keel and admits his ownership, held to show intention of parties that property should pass pari passu with progress toward completion, and held that materials went with her. Wood v. Bell, lxxxv. 772 ; 5 E. & B. 772. Affirmed in Ex. Ch. as to vessel, but not materials, lxxxviii. 355 ; 6 E. & B. 355. On policy insuring goods of wharfinger and those "in trust" with him, held he could recover full value of goods of his customers destroyed. Waters v. Assurance Co., lxxxv. 870 ; 5 E. & B. 870. Detention of vessel by danger of seas beyond time when cargo can be obtained is at risk of the shipper. Hurst v. Usborne, lxxxvi. 145 ; 18 C. B. 145. Description of vessel in charter-party as A. No. 1, no warranty she will con- tinue so during voyage. Ibid. Where plaintiff agreed to fit up emigration ship for the sum of 15s. per statute adult, work to be done to satisfaction of commissioners, held he could not recover for berths erected but removed under their order or for extras. Dobson v. Hud- son, lxxxvii. 652; 1 C. B. N. S. 652. Where charterers of vessel were to pay owners a lump-freight for whole voy- age, master to make bills of lading on such terms as charterers directed, it was held on failure of charterers to meet their draft in favor of owners, that their assignees and not the owners were entitled to freight due by shippers. Mar- quand v. Banner, lxxxviii. 232 ; 6 E. & B. 232. Where at an auction of a freehold and a rent, the conditions were, that no objections should be made to. title because of the non-receipt of the rent, and the purchaser afterward discovered that no rent had been received for twenty years, he was held bound. Hanks v. Palling, lxxxviii. 659 ; 6 E. & B. 659. Where charter-party describes the tonnage of the vessel as being of 180 to 200 tons or thereabouts, it is substantially complied with if her tonnage is 257.91 . Barker o. Windle, lxxxviii. 675 ; 6 E. & B. 675. Where regulations of a railway company in hiring sacks were, that demur- rage should be charged after fourteen days, allowing seven days for filling, no sacks to leave a station without guaranty from consignee, the consignor was held liable for demurrage after fourteen days from the hiring, but not after con- signee obtained possession. Great Northern Railway Co. v. Wyles, lxxxix. 344 ; 2 C. B.N. S. 344. Necessary assent of third parties assumed in the contract, but no covenant to obtain it. Smith v. Mayor of Harwich, lxxxix. 651 ; 2 C. B. N. S. 651. Usage of trade that " bale" means a particular package, shown. Gorrissen v. Perrin, lxxxix. 681 ; 2 C. B. N. S. 681. Substitution of other rooms for those of the lease on same terms, is a new con- tract and not an alteration by parol. Giles v. Spencer, xci. 244 ; 3 C. B. N. S. 244. Sale of goods to be delivered on the arrival of a certain ship, does not pass any present title. Hale v. Rawson, xciii. 85; 4 C. B. N. S. 85. Plaintiff in error depositing by agreement consols in lieu of bail to abide the further order of the court, is entitled to them on reversal of judgment in Ex- chequer Chamber though an appeal pending. Castrique v. Imrie, c. 340 ; 10 C. B. N. S. 340. A contract for part of the profit from sale of a commodity, does not include a right to any share of profit from sale of another article in the manufacture of 118 CONTRACT, IV. (a). which the first commodity is an ingredient. Fullwood v. Akerman, ciii. 736 ; 11 C. B. N. S. 736. Lex loci contractus.govems as to construction and legality of contract. Branley ». S. E. Railway Co., civ. 63 ; 12 0. B. N. S. 63. Where a charter-party provided that the charterer might employ stevedores to assist in the stowage, but such stevedores being under direction of master, he was not to be responsible to owner for improper stowage, the owner is liable for any such damage. Sack v. Ford, cvi. 90 ; 13 C. B. N. S. 90. Contract construed with reference to surrounding circumstances. Hopkins v. Hitchcock, cviii. 65 ; 14 C. B. N. S. 65. _ When words in a contract are descriptive merely of the quality of articles sold, a variation will not invalidate contract. Ibid. Intention of parties to govern in construction of surety-bond. Montefiore v, Lloyd, cix. 203; 15 C. B.N. S. 203. How far extrinsic evidence of surrounding circumstances admissible to explain. Ibid. Contract, not by deed, for liberty to dig and carry away cinders, is perfectly valid, and recovery can be had for breach. Smart v. Jones, cix. 717 ; 15 C. B. N. S. 717. Construction of charter-party as to what constitutes full and complete cargo. Cole v. Meek, cix. 795 ; 15 C. B. N. S. 795. Lex loci contractus governs as to construction of. Scott v. Pilkington, ex. 11 ; 2 B. & S. 11. Board of Health liable for sewers, &c, to contractor when proper notice to owners under Public Health Act, 11 & 12 Vict., c. 63, has not been given. Worthington v. Sudlow, ex. 508 ; 2 B. & S. 508. Qucere, if the payment by the owners had been a condition precedent. Ibid. Construction of contract containing French phrases, for the court. Stearine, &c. Co. v. Heintzmann, cxii. 56 ; 17 C. B. N. S. 56. Though price not agreed upon, property will pass to vendee, if that be the intention. Joyce v. Swann, cxii. 84 ; 17 C. B. N. S. 84. In such case the price will be a reasonable one. Ibid. Where a contract partly in writing can only be made out by the introduction of parol evidence, it is a question for the jury. Bolckow v. Seymour, cxii. 107 ; 17 C. B. N. S. 107. Construction of reservation of right to rescind contract for sale of real estate. Vestry of Shoreditch v. Hughes, cxii. 137 ; 17 C. B. N. S. 137. " Conditions as per charter-party," in bill of' lading limited to those ejusdem generis as that previously mentioned, viz., payment of freight. Russell v. Nie- mann, cxii. 163 ; 17 C. B. N. S. 163. Agreement by attorney to prosecute action for fixed sum for costs, will prevent him from recovering mone than that. Moon v. Hall, cxii. 760 ; 17 C. B. N. S. 760. Whether a tender of certain shipping document is sufficient under a certain contract for the purchase of wheat, a question for the jury. Tamvaco v. Lucas, cxiii. 89 ; 3 B. & S. 89 ; affirming s. c. in Q. B., ci. 185 ; 1 B. & S. 185. Stipulation in contract that defendant, for whom work was to be done, shall have power to finish work, employ hands, &c, if not satisfied with progress of work, and deduct cost from contract price, is good. Stadhard v. Lee, cxiii. 364 ; 3 B. & S. 364. It is immaterial whether such stipulation be reasonable or unreasonable, pro- vided it be clear. Ibid. Where material circumstances are found by jury, or stated in plea, the court can consider them in construction of contract. Behn v. Burness, ISx. Ch., cxiii. 751 ; 3 B. & S. 751 ; reversing s. c, ci. 877 ; 1 B & S. 877. Aliter, when the question is raised on demurrer, or motion for judgment non obstante veredicto. Ibid. Whether a statement in a charter-party is a representation or a substantive part of the agreement, is a question for the court not the jury, in view of the surrounding circumstances. Ibid.. Where it appears from the nature of the contract that the existence of some particular thing is presumed at time of performance, there is an implied condi- CONTRACT, IV. (a), (£), (o), (d). 11!) tion that destruction of it will avoid the contract. Taylor v. Caldwell, cxiii. 826 ; 3 B. & S. 826. (6) Parties. Defendant not liable on contract made " as agent" for and " on behalf of" a foreign principal. Green v. Kopke, lxxxvi. 549 ; 18 C. B. 549. It is in every case foreign or otherwise a question of intention. Ibid. Where A. entered into a contract on behalf of a foreign company, but signed in his own name, and part of the freights were to be paid in London, held his personal contract. Cooke v. Wilson, lxxxvii. 153; 1 C. B. N. S. 153. Registered proprietor of cab, who hires it by the day for a certain sum, to a licensed driver, the license being deposited with him, is responsible for driver's contracts. Powles v. Ilider, lxxxviii. 207 ; 6 E. & B. 207. A person cannot sue on contract made by another, unless made on his behalf at the time by an authorized agent, or by one whose act has been ratified. Wat- son v. Swann, ciii. 755 ; 11 C. B. N. S. 755. The fact that one lets, as auctioneer, is not conclusive evidence that the con- tract was not made with him personally. Fisher ». Marsh, cxviii. 411 ; 6 B. & 8.411. An auctioneer is not personally liable for non-performance of the contract when his bill names the solicitor of the principal. Mainprice v. Westley, cxviii. 420 ; 6B. &S.420. (c) What constitutes. Where assignee of bill of lading demands cargo of master, who agrees to de- liver, it does not constitute contract to receive within aireasonable time. Moeller v. Young, lxxxv. 7, 755 ; 5 E. & B. 7, 755. A written agreement, which was not to take effect until approved by a third party, not a contract. Pyni v. Campbell,' lxxxviii. 370 ; 6 E. & B. 370. A letter from defendant, making propositions and asking in case of accept- ance for an account, to which in reply plaintiff sent the account, followed by correspondence varying the propositions, held not to constitute a contract. An- drews o. Garrett, xcv. 262 ; 6 C. B. N. S. 262. A written request by the insured, on the arrival of the vessel, for a credit note for the unexpired time and an answer asking for the policy for cancelling, which was delivered, make a contract though the time of the credit note was not un- derstood. Baines v. Woodfall, xcv. 657 ; 6 C. B. N. S. 657. Where by bill of lading the cargo was deliverable to consignees " paying freight" and a memorandum on the margin said, that eight days were allowed for unloading, the consignees not liable for demurrage. Chappel v. Comfort, c. 802; IOC. B. N. S. 802. Auctioneer advertising a sale for an unknown principal as " without reserve,'' is liable to the highest bona fide bidder if he knocks down the goods to the owner. Warlow v. Harrison, cii. 295 ; 1 E. & E. 295. Where plaintiff applied to owner of some sunken ore to raise it, and he said, he had nothing to do with it, to see A., A. said he was all right and insured by B., to go to B. for orders, and B. instructed him to do the work, there is no con- tract by owner. Castellain v. Thompson, cvi. 105 ; 13 C. B. N. S. 105. Upon clause in bill of lading that vessel shall take her turn in unloading, master can sue consignor for breach of contract causing detention. Cawthron v. Triekett, cix. 754 ; 15 C. B. N. S. 754. Delivery of bill of lading and other circumstances sufficient to pass property to vendee. Joyce v. Swann, cxii. 84 ; 17 C. B. N. S. 84. Where there has been a clear offer for and acceptance of offer for goods through brokers, it is binding as a contract on principal. Heyworth v. Knight, cxii 298 : 17 C.B.N. S.298. # _ ' S A subsequent abortive attempt to put it in shape will not affect it. Ibid. (d) Authority. An executor having promised to pay a creditor of the devisee, on receiving authority from the latter, it was held that the authority need not specify the amount. Horlor v. Carpenter, xci. 172 ; 3 C. B. N. S. 172. Authority to put name on prospectus of projected transport company, held to 120 CONTRACT, IV. (d)— (i). make parties liable for breach of contract made with passenger. Collingwood v. Berkeley, cix. 145 ; 15 C. B. N. S. 145. (e) By letter. Where work is done in consequence of order received by letter, the place of the contract is where the letter was received and work done. Newcomb v. De Roos, cv. 271 ; 2 E. & E. 271. (/*) Collateral. On a collateral contract to pay a certain sum per month as interest on a note if it should not be met at maturity, payee, who endorsed note away, cannot re- cover. Florence v. Drayson, lxxxvii. 584 ; 1 C. B. N. S. 584. A distinct collateral verbal agreement not inconsistent with a written agree- ment, whether preceding or contemporaneous with written agreement, is good. Lindley v. Lacey, cxii. 578 ; 17 C. B. N. S. 578. Endorsing over a bill of exchange given as collateral security does not pre- vent taking possession under a bill of sale. Bramwell v. Eglinton, cxvii. 39 ; 5 B. & S. 39. Where a shipping contract contained clause for demurrage, held to be collateral and independent of any partnership in the freight. Blech v. Balleras, cvii. 203 ; 3 E. & E. 203. _ Where there is such collateral clause, damages arising from breach could not go into account of profit and loss. Ibid. (g) Alteration and substitution. One party may before acceptance retract an offer to renew a contract broken by the other by breach of condition precedent. Gilkes v. Leonino, xciii. 485 : 4 C. B. N. S. 485. Where provision that additions, which may be made by orders in writing shall be paid for at a price to be agreed upon in writing, there can be no recovery for additions made in the course of the work by orders not in writing. Kussell v. Da Bandeira, cvi. 149 ; 13 C. B. N. S. 149. But alterations made by such orders after the completion of the contract are independent and may be recovered for quantum meruit. Ibid. (7«) Divisible or not. One contract founded upon one consideration cannot be bisected. Hodgson v. Johnson, xcvi. 685 ; E., B. & E. 685. A contract to light the parish lamps from sunset to sunrise with gas, sufficient in quantity and quality for which a certain sum is to be paid for each lamp, is severable. London Gaslight Co. v. Chelsea, xcviii. 215 ; 8 C. B. N. S. 215. Where performance of contract prevented by act of defendant, plaintiff can recover a reasonable sum as damages, though not amount agreed upon. Inch- bald v. W. Neilgherry Coffee Co., cxii. 733 ; 17 C. B. N. S. 7"33. (i) Meaning of words. Agreement between landlord and his agent, for letting houses, that the latter should, under no pretence, be an agent to receive any money on his account, broken by the agent receiving deposit money for houses let by bim. Bray v. Chandler, lxxxvi. 718 ; 18 C. B. 718. " As soon as possible," means within a reasonable time. Atwood v. Emery, lxxxvii. 110; 1 C. B.N. S. 110. Loaded vessel which, after leaving harbor and crossing bar, waited for captain, who returned for his papers, has not sailed. Hudson r. Bilton, lxxxviii. 565 ; 6 E. & B. 565. "Other instrument," in a deed of settlement of a joint stock company, means one ejusdem generis with those enumerated. Agar v. Life Assurance Co, xci. 725 ; 3 C. B. "N. S. 725. Guaranty, if on a sale a property does not bring a certain price, means a com- pleted sale. Moor v. Roberts, xci! 830 ; 3 C. B. N. S. 830. The word "voyage," in a charter-party, means a transit from the terminus a quo to the terminus ad quern. Valente v. Gibbs, xcv. 270 ; 6 C. B. N. S. 270. Commission on '' goods bought" entitles to commission on goods, the order for CONTEACT, IV. (i), (jfe), (Q. 121 which is accepted though they are never delivered. Lockwood v. Levick, xcviii. 003 ; 8 C. B. N. S. 003. On a written contract providing for commissions on the " sale of property,'' and different commissions on "letting or disposal of the leases," held that an assignment of a lease was a sale. Biggs v. Gordon, xcviii. 638 ; 8 C. B. N. S. 038. On a contract to supply a cargo afloat, for which buyer to pay cash in exchange for the "shipping documents," a policy of insurance which substantially covers the value of the cargo, but not the freight, is sufficient. Tamvaco v. Lucas, ci. 185; 1 B. &S. 185. ' Affirmed in Exchequer Chamber, cxiii. 89 ; 3 B. & S. 89. A port which a vessel cannot enter, except under penalty of confiscation, is not a "safe port" within.ineaning of a charter-party. Ogden v. Graham, ci. 773; 1 B. <& S. 773. An agreement to be responsible for all costs that might be sustained, held to include costs incurred, but not yet paid. Spark v. Heslop, cii. 563 ; 1 E. & E. 563. Meaning of term used in trade can be explained by parol. Myers v. Sari, cvii. 306 ; 3 E. & E. 306. Term "weekly account" on building contract so explicable. Ibid. What are book debts so as to pass under sale by assignees, under 24 & 25 Viet. c. 134, s. 137. Shipley v. Marshall, cviii. 566 ; 14 C. B. N. S. 566. Words " covenants and conditions," construed to mean stipulation. Hayne v. Cummings, cxi. 421 ; 16 0. B. N. S. 421. Meaning of words in contract " 2£ per cent, or three months' bill." Rugg v. Weir, cxi. 471 ; 16 C. B. N. S. 471. A letter, in order to embody any other writing, so as to make it part of a special contract, must either set out the writing, or refer to it so clearly and definitely, that it becomes a part of the letter itself. Peek v. N. S. Railway Co., cxvi. 1005; 4B. &S. 1005. Meaning of " team work." Duke of Marlborough v. Osborn, cxvii. 67 ; 5 B. & S. 67. (k) Mercantile. Consignee receiving goods not liable for demurrage incurred at port of loading, though he was to pay for them as per charter-party which stipulated for a lien for demurrage. Smith v. Sieveking, lxxxv. 589 ; 5 E. & B. 589. (I) Particular phrases. Semble, that on sale of goods to be " delivered and paid for in fourteen days by casli," vendor may demand cash on delivery. Godts v. Rose, lxxxiv. 229 ; 17 C. B. 229. The assured having paid extra risk " for such residence for one year," permis- sion was granted him ■' to proceed to and reside at Belize aforesaid and for the time aforesaid." Held, that the permission was not confined to any particular year. Notman v. Anchor Assurance Co., xciii. 476 ; 4 C. B. N. S. 476. On a sale of "115 bales containing 17,940 (or any less number that may arrive) East India hides," the parenthetical clause qualified the word bales and not hides. Beckh v. Page, xciv. 708 ; 5 C. B. N. S. 768. Affirmed in Exchequer Chamber, xcvii. 861 ; 7 C. B. N. S. 861. On 'a charter-party made by defendant as agent for an unknown principal, providing for demurrage, and further, that all liability shall cease as soon as the cargo is shipped, the defendant is not liable for demurrage at the port of dis- charge. Oglesby v. Yglesias, xcvi. 930; E., B. & E. 930. An agreement to construct a machine for cutting glue according to a drawing, " strong and sound workmanship to the approval" of A., means that the approval is as to the strength and workmanship not its efficiency. Ripley v. Lordan, xcviii. 889 ; 8 C. B. N. S. 889. Agreement to pay all liabilities on shares in a ship from the time of plaintiff's purchase from O, for which plaintiff is liable as owner in any way, does not extend to stores furnished the vessel before bill of sale from C. to plaintiff. Chapman v. Callis, xcix. 769 ; 9 C. B. N. S. 769. A contract to purchase " your wool," is not limited to an amount mentioned 122 CONTRACT, IV. (0, (m), (n). by way of opinion in a previous conversation. MacDonald v. Longbottom, cii. 977 ; 1 E. & E. 977. In an agreement for hire of a barge, " fair wear and tear" allowed by owner, and when given up to be in good working order with rigging complete, the words " in good order" are construed relatively and mean in the sort of order it was at the time of the hiring, fair wear and tear excepted. Schroder v. Ward, cvi. 410; 13 C.B.N. S. 410. Insurance against " total loss only," covers a constructive total loss. Adams r. Mackenzie, cvi. 442; 13 C. B. N. S. 442. Insurance policy stipulating that " outward cargo should be considered home- ward interest," and valuing the cargo at 80002., means a substantially full cargo and not goods substantially less. Tobin v. Harford, cvi. 791 ; 13 C. B. N. S. 791. Accident in policy of life insurance involves some violence, casualty or vis major. Sinclair v. Passengers Ins. Co., cvii. 478 ; 3 E. & E. 478. Hence, death by sunstroke does not fall under it. Ibid. A stipulation that no accommodation, &c, to re ard payment of commission to agent, makes him entitled at time when purchase-money due. Laru v. Hill, cix. 45; 15 C. B. N. S. 45. Stipulation as to delivery of cotton, held to be only contract to deliver at rea- sonable time and under reasonable circumstances. Neill v. Whitworth, cxiv. 435 ; 18 C. B. N. S. 435. Clause in policy of insurance ''to pay a loss thirty days after receipt of official news of capture or embargo, without waiting for condemnation," construed. Fowler w. Insurance Co., cxiv. 818 ; 18 C. B. N. S. 818. A policy of insurance upon freight " to be valued at as under," is not a valued policy. Wilson v. Nelson, cxvii. 354 ; 5 B. & S. 354. Insurance upon a ship and cargo of guano " free from all average or claim arising from jettison or leakage." Carr v. Royal Exchange, cxvii. 433 ; 5 B. & S. 433. (»») Generality restrained. In a contract of insurance, a condition that such evidence of an injury should be furnished as the directors of the company should think necessary, means such as they reasonably require. Braunstein v. Accidental Death Ins. Co., ci. 782; 1 B. & S. 782. Condition in policy of insurance restrained by subsequent words in policy. Filten v. Accidental Death Ins. Co., cxii. 122 ; 17 C. B. N. S. 122. General words in bill of sale of personal property limited so as not to create assignment of term for years. Harrison v. Blaekburn. v cxii. 678 ; 17 C. B. N. S. 678. The warranty of a ship taking a cargo of not less than a specified number of tons, means with reference to ordinary weight and measurement in reasonable proportions. Pust v. Dowie, cxvii. 20 ; 5 B. & S. 20. (n) Time. Where defendant agrees to load a vessel in the customary manner he must do it within what would be a reasonable time under ordinary circumstances. Adams e. Royal Mail Steam Packet Co., xciv. 492 : 5 C. B. N. S. 492. On a contract for board and tuition, payable quarterly, nothing is due until the end of the quarter. Hopkins v. Thomas, xcvii. 711 ; 7 C. B. N. S. 711. . What will amount to extension of time for the performance of a contract. Williams v. Wheeler, xcviii. 299 ; 8 C. B. N. S. 299. A written contract fixing'a penalty if work not completed at a certain time is waived in this respect by a subsequent parol agreement which the parties knew would prevent its completion on the day named. Thornhill *-. Neats, xcviii. 831 ; 8 C. B.N. S. 831. The charterer of a vessel directing plaintiff to re-charter and promising to be i - esponsible for loss, if any, is liable for the difference in freight, if at a less sum, immediately upon the loading. Yeames v. Lindsay, xcix. 885 ; 9 C. B. N. S. 885. A lease dated in 1851 to hold from 1849 for the term of fourteen years thence next ensuing, with a provision that it might be determined at the expiration of the first seven years by notice, held to be determinable in 1856. Bird v. Baker, cii. 12; 1 E. &E. 12. CONTRACT, IV, ('».), (o), (p), (g), (r), (a). 123 Contract to indemnify against a bill not invalidated because bill bears a dif- ferent date from that named. Way v. Ilearn, cvi. 292 ; 13 C. B. N. S. 292. Under a written agreement upon an ordinary voyage policy to insure a, vessel "during thirty days' stay in her last port of discharge," the time begins at the expiration of twenty-four hours after her arrival, insurance Co. v. Tithering- ton, cxvii. 765 ; 5 B. & S. 765. (o) Subject-matter. Action lies for breach of agreement to refer matters of dispute that may arise to arbitrator. Livingston r. Ralli. lxxxv. 132 ; 5 E. & B. 132. On insurance of passage money of emigrants, subject to the clauses in ss. 47 to 51, of Passenger's Act of 1852, the underwriters are not bound for expenses of master in maintaining passengers during detention by perils of the sea. Willis v. Cooke, lxxxv. 641 ; 5 E. & B. 641. A bill of sale may give a creditor a right to enter and seize after-acquired goods. Chidell v. Galsworthy, xcv. 471 ; 6 C. B. N. S. 471. (p) Quantity. On a contract to buy a cargo, to be shipped, to consist of from 1800 to 2200 quarters, buyer to pay for any excess of weight, the vendee may reject a cargo which the usual shipping documents show to be either below 1800 or above 2200 quarters. Tamvaco v. Lucas, cii. 581 ; 1 E. & E. 581. Though it turn out to be within the limits. Ibid. (j) Hiring and service. On a contract that plaintiff should have commission on proceeds of dry mer- chantable palm oil, but none on any wet, dirty, or unmerchantable oil, he was held entitled to no commission on oil wet in the understanding of the trade, though wetness very slight and oil merchantable. Warde v. Stuart, lxxxvii. 88 ; 1 C. B. N. S. 88. Where there was a written contract for a year, with a provision that at the end of the year the employer would, if satisfied, make an addition to the salary, held that the proviso did not exclude a custom to dismiss on a month's notice. Parker v. Ibbetson, xciii. 346 ; 4 C. B. N. S. 346. The effect of the proviso on the custom is a question for the court. Ibid. Agreement that in the event of defendant's travelling for any other house over any part of the same ground he will forfeit 50Z., is broken by so travelling after he has left plaintiff's employ. Mumford v. Gething, xcvii. 305 ; 7 C. B. N. S. 305. A contract to be binding for twelve months certain, and to continue from time to time until three months' notice be given, may be determined at the endfif the first year by notice. Brown v. Symons, xcviii. 208 ; 8 C. B. N. S. 208. On a contract for service for a term in consideration of a sum at its expiration, a weekly sum, and house and coals during term, the weekly sum may be reco- vered for a time of temporary illness. Cuckson v. Stones, cii. 248 ; 1 E. & E. 248. There is implied condition that contract of hiring of menial servant for a year can be terminated by month's notice or wages. Nicoll v. Greaves, cxii. 27 ; 17 C. B. N. S. 27. Under an agricultural lease, stipulating that the tenant shall do one day's team- work with two horses, he may be required to haul coals. Duke of Marlborough v. Osborn, cxvii. 67 ; 5 B. & S. 76. But not to supply the cart. Ibid. (r) Effect of consideration. An agreement as follows u This note to be paid within three years," does not make iiTobligatory on payee to compel payment within that time, in order to pre- serve the liability of one of the makers, who is a surety. Lawrence v. Walms- Icy, civ. 797; 12 C. B. N. S. 797. (s) Price. Where a wall, partly of stone two feet thick, and partly of brick fourteen inches thick, was to be paid for at three shillings per superficial yard, nine inches thick, held that under a custom this applied only to the brick work, leav- 124 CONTRACT, IV. («), (<), («). ing the stone to be paid for on a quantum meruit. Symonds v. Lloyd, xcv. 691 ; 6 8. B.N. S. 691. . Mere fact of price not being agreed upon will not prevent property passing to vendee. Joyce v. Swann, cxii. 84 ; 17 C. B. N. S. 84. (t) Stipulation fob payment. Assignee of bill of lading not bound to pay freight until whole cargo delivered. Moeller v. Young, lxxxv. 7, 755 ; 5 E. & B. 7, 755. Where charter-party for voyage from Sundswall, a Baltic port, to Southampton, provided that the highest freight (not less than 90s.) should be paid, which the owner could prove had been paid for same voyage, held that owner not entitled to more than 90s., by showing higher rate paid for voyage to London. Gether v. Capper, lxxxvi. 866 ; 18 C. B. 866. Agreement that contractor should receive, every fourteen days, amount certi- fied by architect, in certain proportions less than value of work, until ninety per cent, of whole completed, and no further payments to be made until three month's after architect certified completion of work to his satisfaction, held that certifi- ca'te of completion not mentioning amount due sufficient. Pashby v. Mayor of Birmingham, lxxxvi. 2 ; 1 8 C. B. 2. Agreement to pay in such manner as should be mutually agreed on may be recovered upon, if defendant refuses to agree as to the manner. Hall v. Conder, lxxxix. 22 ; 2 0. B. N. S. 22. Semble, that if no mode agreed upon, the money would be payable as if there were no stipulation. Ibid. Where defendant gave plaintiff liberty to use his patent right in advertising the sale of plaintiff's works, on condition of receiving, in the event of sale, a cer- tain sum, the amount did not become due unless the works and patent were sold together. Pelly v. Sidney, xciv. 678 ; 5 C. B. N. S. 678. Where two life assurance companies, in the course of business, reassured each other, and as any premium became due from one the other receipted for it, and the accounts were periodically settled, held that the premium was paid at the time of the receipt given. Prince of Wales Assurance Co. v. Harding, xcvi. 183 ; E., B. & E. 183. Agreement to pay 500Z. out of the first moneys received under a certain con- tract, and out of any further moneys ten per cent., does not mean that the percent- age shall be paid upon a balance over 500Z. in the first moneys received. Coch- rane v. Green, xcix. 448 ; 9 C. B. N. S. 448. Where vendor to be paid in instalments, and until balance paid, to have a lien, and in case of default to be entitled to dispose of or remove, he retains the title. Walker v. Clyde, c. 381 ; 10 C. B. N. S. 381. Evidence of a custom that the buyer may elect to take timber in bond and pay the duty himself, is admissible, and it applies though announcement of a reduc- tion in duty be made in parliament on the day of the contract. Clark v. Small- field, ci. 985 ; 1 B. & S. 985. No title will pass, when goods are to be paid for before delivery, until perform- ance of condition. Moakcs v. Nicolson, cxv. 290 ; 19 C. B. N. S. 290. (it) Stipulation for valuation or estimate. Where valuation to be made, a determination of the price per cubic foot, and the superficial measurement sufficient without ascertaining exact quantity. Gor- don v. Whitehouse, lxxxvi. 747 ; 18 C. B. 747. Where, on coming in possession, tenant was to pay for straw and dung, but on going out was to be paid for the straw left but not for the dung, the straw should be valued at fodder price, i. e., one-half the market value. Clarke v. Westrope, lxxxvi. 765 ; 18 C. B. 765. Action will lie for it, though the plan of valuation agreed upon has become impossible. Ibid. " Market value" means the ordinary price to consumer. Orchard v. Simpson, lxxxix. 299 ; 2 C. B. N. 8. 299. Where there is stipulation that architect shall certify that work has been done to his satisfaction, held that it need not be in writing. Roberts v. Watkins, cvm. 592; 14 C. B. N. S. 592. CONTRACT, IV. (v), (w). 125 (») Performance. Vendor of shares of stock is only bound ta deliver the certificates and trans- fers, though the company refuse the latter. Stray v. Russell, cii. 887 ; 1 E. & E. 887. Where a contractor undertakes under a penalty to perform a work within a, given time, and performance within that time is prevented by the other party, the contractor is exonerated. Russell v. Da Bandeira, cvi. 149 ; 13 C. B. N. S. 149. One sufficiently performs a contract to deliver shares who puts the other party in the position of legal owner. Hunt v. Gunn, cvi. 226 ; 13 C. B. N. S. 226. Where plaintiff has failed to perform his part of the contract, he cannot recover. Borrowman v. Rossel, cxi. 58 ; 16 C. B. N. S. 58. Non-performance of condition precedent in agreement for leasing will excuse performance by the other party. Tidey v. Mollett, cxi. 298; 16 C. B. N. S. 298. Where time of payment of money is to be fixed by notice, reasonable time must be allowed. Brighty v. Norton, cxiii. 305 ; 3 B. & S. 305. A half-hour's notice not reasonable. Ibid. Performance will be excused by destruction of particular thing, assumed to be in existence at time for performance of contract. Taylor v. Caldwell, cxiii. 826 ; 3 B. & S. 826. A contract that an insurance shall be kept on a ship will be broken by allow- ing the vessel to be uninsured for a few days. Parry v. The Great Ship Co., cxvi. 556 ; 4 B. & S. 556. (w) Breach. Agreement by defendant, an'executor, to return advances made by plaintiff to A., out of the first moneys received on account of A., upon receiving authority from the latter, is not broken by the defendant's buying A.'s interest without notice of plaintiffs having advanced more than a certain sum already returned. Horler v. Carpenter, lxxxix. 56 ; 2 C. B. N. S. 56. Statement by the charterer of a vessel to the master that he had ceded the charter-party to a third person, is not a breach. Barrick v. Buba, lxxxix. 563 : 2 C. B. N. S. 563. Delay to proceed under charter-party in time of war for two days, with ob- jections because of danger, do not necessarily constitute a breach. Pole v. Cet- covich, xcix. 430 : 9 C. B. N. S. 430. Defendant excused, if plaintiff hindered performance. Royal Mail Co. v. Steam Packet Co., c. 860 ; 10 C. B. N. S. 860. No defence on an agreement by insurance company to reinstate, that perform- ance had become impossible through the taking down of the buildings by com- missioners of sewers. Brown v. Royal Insurance Co., cii. 853 : 1 E. & E. 853. To constitute a breach of an agreement not to carry on business within cer- tain limits, it is not necessary that defendant should have a shop or place of busi- ness there. Brampton v. Beddoes, cvi. 538; 13 C. B. N. S. 538. Notice from the party of a refusal to fulfil a contract before the time for ful- filment has arrived may be treated as a breach. Railway Co. v. Xenos, cvi. 825 ; 13 C. B. N. S. 825. Purchaser of good-will of medical practice to pay one-fourth of annual earn- ings, commits breach by wilful failure to practice, so that there were no net earn- ings. Mclntyre v. Belcher, cviii 654; 14 C. B. N. S. 654. When contract is to furnish abstract of title, it must be as perfect as know- ledge or means of knowledge will permit. Steer v. Crowley, cviii. 337 ; 14 C. B. N. S. 337. After refusal to carry on the contract, value of goods already delivered and kept may be recovered under goods sold and delivered. Ibid. Prevention from exercise of liberty to dig and carry away cinders, according to written contract, will justify action for breach. Smart v. Jones, cix. 717 ; 15 C. B. N. S. 717. Where there is contract in bill of lading that vessel shall take her turn in un- loading, it is a breach for her not to do so, and master can sue consignor for de- tention. Cawthron v. Trickett, cix. 654; 15 C. B. N. S. 754. Upon agreement to purchase coal of a certain standard by sending vessel for 126 CONTRACT, IV. («), (*). same during nine months, it is a breach not to send vessel. Jonassohn v. Young, cxvi. 296 ; 1 B. & S. 296. A party entering into an arrangement requiring the continuance of an existing state of circumstances impliedly agrees to do nothing to put an end to that state of circumstances. Stirling v. Maitiand, cxvii. 840 ; 5 B. & S. 840. (x) Condition precedent. Parol evidence admitted to show that an undated written contract was not to take effect on delivery but when certain things were done. Davis v. Jones, lxxxiv. 625; 17 C. B. 625. Where ship to be in every way fitted for her voyage and one-fourth of freight to be paid on her having sailed, held that her being fit was condition precedent to right to recovery. Thompson v. Gillespy, lxxxv. 209 ; 5 E. & B. 209. On agreement that the plaintiff should procure letters patent and immediately afterward assign an interest to the defendant, who was to pay expense of pro- curing them, held that the assignment was condition precedent to the payment. Hill v. Mount, lxxxvi. 72 ; 18 C. B. 72. On policy providing that if ship be mortgaged the owner should have no claim unless mortgagee give an undertaking to pay all sums to become due, giving the undertaking is a condition precedent. Hughes v. Tindall, lxxxvi. 98 ; 18 C. B. 98. •Where plaintiff agreed forthwith to procure and load vessel, for which defend- ant to pay in instalments, the first coming due seven days after arrival at the wharf, and bonds were to be given within ten days of agreement for its due per- formance, held that giving bond was condition precedent to recovery. Roberts v. Brett, lxxxvi. 561 ; 18 0. B. 561. Affirmed in Exchequer Chamber, xcv. Oil; 6 C. B. N. S. 611. In a guarantee of payment on December 13th then next, in consideration of plaintiff's forbearing to sue A., forbearance until that date is a condition prece- dent. Bolt v. Cozens, lxxxvi. 673; 18 C. B. 673. Semble, that forbearance until that date only is meant. Ibid. Where defendant agreed to grant a lease to plaintiff for five years at certain rent, and at expiration of the term to pay all moneys expended on the land, plaintiff having occupied under the contract, it was held the granting a lease not condition precedent to recovery of expenses. Bowes v. Croll, lxxxviii. 255 ; 6 E. & B. 255. Where defendant agreed to advance to master half of the freight on the bills of lading being signed, and accepted a draft in favor of plaintiff, payable on the vessel " being loaded and sailed, out of the advance," the sailing is condition precedent. Hudson v. Bilton, lxxxviii. 565 ; 6 E. & B. 565. Defendant may bona fide reject a carriage which plaintiff agreed to build to suit his convenience and taste. Andrews v. Belfield, Ixxxix. 779 ; 2 C. B. N. S. 779. Where plaintiff is to receive commissions on the invoice prices, the production of the invoices is not a condition precedent to his right to recover for breach. Plank v. Gavila, xci. 807 ; 3 C. B. N. S. 807. Statements of fact by the party interested in a policy of life insurance do not form the basis of the contract unless it be so stipulated. Wheelton v. Hardisty, xcii. 232 ; 8 E. & B. 232. _ Where a surety entered into a bond for 1000Z. to secure advances to the prin- cipal, on the faith of a collateral agreement that the advances should be limited to 950Z., and if they exceeded 1000?. for a month, without reduction, notice should be given, it was held the limitation and notice were not conditions, the breach of which avoided the bond. Gordon v. Rae, xcii. 1065 ; 8 E. & B. 1065. Sale of goods to be delivered on the arrival of a certain ship, is conditional on the arrival, but not on the ship's containing the goods. Hale v. Rawson, xciii. 85 ; 4 C. B. N. S. 85. On an advance note by the master of a vessel promising to pay, ten days after sailing, to any one who should advance to H. 61 , provided II. sailed, held that an advance of 51. 5s. cash, and 11. 15.9. worth of clothing fulfilled the condition, though for all cash 7J per cent would have been charged. McKune v. Joynson, xciv, 218; 5 C. B. N. S. 218. Where the contract provides for a specified extension of time on the payment CONTRACT, IV. (*). 127 of interest on the amount, the payment of interest is not a condition precedent. Dodd v. Ponsford, xcv. 324 ; 6 0. B. N. S. 324. A policy of life assurance construed to be an annual policy, with the premium payable quarterly, and held that express words were necessary to make the pay- ment at the quarter a condition precedent to the continuance of the policy. Sheridan v. Phoenix Life Assurance Co., xcvi. 156; E., B. & E. 156. Plaintiff guaranteed to defendant that B. would pay two bills for 100Z. and 62?., and defendant guaranteed to plaintiff the repayment of 300?. for goods or- dered by C, held that the consideration was the promise and not the performance, and that the payment of the bills by B. was not condition precedent to plaintiff's right to recover. Christie v. Borelly, xcvii. 561 ; 7 C. B. N. S. 561. Covenants in a charter : party held not to be conditions precedent, though it stated the freight was to be paid in consideration therefor. Seeger v. Duthie, xcviii. 45 ; 8 C. B. N. S. 45. Where there is a contract to light the parish lamps, from sunset to sunrise, with gas, sufficient in quantity and quality, for which a certain sum is to bo paid for each lamp, lighting all the lamps is not a condition precedent to recovery. London Gaslight Co. v. Chelsea, xcviii. 215 ; 8 C. B. N. S. 215. Agreement by defendant company to pay for work and materials, and by plain- tiff to guarantee a certain annual dividend, held to be independent contracts. Stears v. South Essex Gaslight Co., xcix. 180; 9 C. B. N. S. 180. On a promise to pay plaintiff an annuity, in consideration of his marrying, until his income, as a chancery barrister, should be 600 guineas, continuing to practice as a barrister is not a condition precedent to recovery. Shadwell v. Shadwell, xcix. 159; 9 C. B. N. S. 159. Where passenger's ticket provided that the ship not accountable for luggage, unless bills of lading signed, each passenger allowed twenty feet of luggage free, held that without bill of lading company not liable for loss caused by negligence of captain. Wilton v. Atlantic R. M. Steam. Co., c. 453 ; 10 C. B. N. S. 453. An agreement being that plaintiffs undertake to solicit the passage of a bill, and in the event of failure to charge for their work and expenditure only 3001. to defendants, they must use all proper endeavors and provide the means before they can claim the 300Z. Leakey v. Lucas, c. 734; 10 C. B. N. S. 734. On an agreement by defendant to buy a lease subject to his approval as tenant by A., and to pay 5001. as soon as his banker could remit, disapproval by A., before remission and demand, is a bar to recovery. Davis v. Nisbett, c. 752 ; 10 C. B. N. S. 752. In an insurance contract to pay such sum as should be ascertained in case of dispute by reference, the reference is a condition precedent. Braunstein D. Ac- cidental Death Ins. Co., ci. 782 ; 1 B. & S. 782. Where the charter-party states that the ship is at a certain place and will pro- ceed " with all possible despatch," her being at that place is not a condition precedent to recovery. Behn v. Burncss, ci. 877 ; 1 B. k S. 877. On a contract for service for a term, readiness and willingness to serve are a condition precedent to the recovery of wages. Cuckson v. Stones, cii. 248 ; 1 E. & E. 248. In a lease for lives containing a covenant to repair having or taking certain botes without waste, it is not a condition precedent that there should bo botes. Dean of Bristol v. Jones, cii. 484 ; 1 E. & E. 484. A condition in a fire insurance policy that notice of the loss shall be deli- vered within fifteen days after the fire, is a condition precedent. Koper v. Len- don, cii. 825 ; 1 E. & E. 825. Aliter, as to a condition that in case of difference it shaii be submitted to arbitrators. Ibid. A contract to sell a cargo " shipped as per bill of lading, dated September or October," does not entitle buyer to rescind, when all the cargo was not shipped before bill of ladin" was given, but was on board before date of contract. Gat- torno v. Adams, civ; 559 : 12 C. B. N. S. 559. A guaranty to indemnify for discounting bills for a specified time, only becomes irrevocable when the plaintiff has acted on it, and then only to extent of bills discounted. Offord v. Davies, civ. 747 ; 12 C. B. N. S. 747. On a written agreement, in consideration of transferring an interest in a com- pany, plans, &c, to pay 600?., " provided my friends succeed in carrying out the 128 CONTRACT, IV. (*), (y). undertaking," part on the first portion of the land being acquired by the com. pany, and the balance out of first payments received on construction account, to which was subsequently added in writing that the money was to be payable on obtaining the act, half in six months and the residue in instalments, held that defendant's liability was contingent on his friends' carrying out the undertaking. Bruff v. Conybeare, cvi. 263 ; 13 C. B. N. S. 263. On an agreement to do certain work for a money consideration, and within ten days to give a bond for due performance, the giving of the bond held to be con- dition precedent to recovery. Roberts v. Brett, cvi. 889 ; 13 C. B. N". S. 889. Mere sketches of architect are not directions within contract authorizing altera- tions or additions. Myers v. Sari, cvii. 306 ; 3 E. & B. 306. There is no implied condition in suit for average loss against owner of cargo by shipper, that the vessel should be seaworthy. Schloss v. Heriot, cviii. 59 : 14 C. B. N. S. 59. When by contract, one party bound to use reasonable endeavors, it is condi- tion precedent to his right of recovery. Leakey v. Lucas, cviii. 491 ; 14 C. B. N. S. 491. Where a provision that certificate of architect shall be obtained upon perform- ance, it need not be in writing. Roberts v. Watkins, cviii. 592 ; 14 C. B. N. S. 692. To make written certificate necessary, it must be part of condition. Ibid. A mere agreement that deed shall be executed in duplicate, will not cause it to be considered in escrow, it not being a condition. Kidner v. Keith, cix. 35 : 15 C. B. N. S. 35. Quaere, as to liability of board of health to contractor, for sewers, 4c., where payment by owners of property is made a condition precedent. Worthington v. Sudlow, ex. 508 ; 2 B. & S. 508. Stipulation in agreement for a lease, that necessary work is to be done by specified time, is a condition precedent. Tidey v. Mollett, cxi. 298 ; 16 C. B. N. S. 298. Where payment is to be precedent to delivery of goods by agent, it is vio- lation of condition to deliver them without payment. Stearine, &c, Co. v. Heintzman, cxii. 56 ; 17 C. B. N. S. 56. There is no condition that goods insured for sea voyage shall be fit for vicis- situdes of voyage. Koebel v. Saunders, cxii. 71 ; 17 C. B. N. S. 71. Condition precedent in guaranty requires proof of performance before covery. Hill v. Nuttall, cxii. 262; 17 C. B. N. S. 262. What constitutes condition in guaranty. Ibid. A precedent, collateral, oral agreement, not inconsistent with a subsequent written agreement, held good as a condition precedent. Lindley v. Lacey, cxii. 578 ; 17 C. B. N. S. 578. Implied condition of existence of subject-matter at time of performance, from terms of contract. Taylor v. Caldwell, cxiii. 826 ; 3 B. & S. 826. When a contract provides for the production of surveyor's certificate that the work has been done to his satisfaction, no recovery can be had without such cer- tificate being first produced. Clarke v. Watson, cxiv. 278 ; 18 C. B. N. S. 278. And it will make no difference that it is alleged that the surveyor had wrong- fully refused to give such certificate. Ibid. A stipulation in a contract solely for benefit of vendors as to delivery of cotton, held not to be a condition precedent. Neill v. Whitworth, cxiv. 435 ; 18 C. B. N. S. 435. The stipulation was only to deliver cotton at reasonable time and under rea- sonable circumstances. Ibid. It is not a condition precedent to recovery on a charter-party, that the ship should take a cargo not less than the number of tons specified. Pust v. Dowie, cxvii. 20; 5B. AS. 20. Not a condition precedent, to recovery on a policy of insurance, that the ship ' should be loaded at the place therein named. Carr v. Montefiore, cxvii. 408 ; 5 B. & S. 408. (y) Mutuality. A contract that a workman should serve the employer, who was to pay him fortnightly and give him twenty-eight days' notice of discharge, is not bad for want of mutuality. Whittle v. Frankland, ex. 49 ; 2 B. & S. 49. CONTRACT, IV. (y), («). 129 In such case there is an implied obligation on the master to find work. Whit- tle v. Frankland, ex. 49 ; 2 B. & S. 49. (z) Implied. Where defendant, with his partner, assigned all partnership property to the plaintiff, no covenant implied to pay a debt which he owed the firm. Aulton v. Atkins, lxxxvi. 249 ; 18 C. B. 249. Miter, as to a bill of exchange drawn to his order, the property of which was in the firm, and which he sold. Ibid. Where plaintiff sold defendant shares in a cost book mine and executed trans- fer in blank, held that defendant was not bound to register shares in his own name, but was bound to indemnify plaintiff against calls, during his ownership. Walker v. Bartlett, lxxxvi. 845 ; 18 C. B. 845. Where agent to sell on commission finds purchaser but principal refuses, law implies a contract to pay a reasonable remuneration. Prickett ». Badger, lxxxvii. 296 ; 1 C. B. N. S. 296. Semble, that remuneration would be amount of commission. Ibid. The fact that defendant was one of the provisional committee of a projected company, and a cistern was built by the engineer on his land, is no evidence that he authorized the work. Patrick v. Reynolds, lxxxvii. 727 ; 1 C. B. N. S. 727. Shipper of goods on a vessel undertakes that they are not dangerous and in- sufficiently packed, unless he gives notice. Brass v. Maitland, lxxxviii. 470 : 6 E. & B. 470. Though packing done by a third party and neither of them knew of its insuf- ficiency. Ibid. Aliter, if the master had the means of knowing, and ought to have known their condition. Ibid. Provision in an insurance policy that the stock and funds shall be liable for claims under it, does not imply a contract to continue the business. King v. The Accumulative Assurance Co., xci. 151 ; 3. C. B. N. S. 151. One who contracts as agent, impliedly contracts that he has authority. Col- len v. Wright, xc. 301 ; 7 E. & B. 301. Affirmed in Ex. Ch., xcii. 647; 8 E. & B. 647. Taking possession of a house on one's own land after repairs, does not waive the special contract with the builder and raise an implied contract to pay him quantum meruit. Munro v. Butt, xcii. 738 j 8 E. & B. 738. If after the sale of a ship, during her trip,, a seaman, without new articles, serves for a time under the agent of the new owner, but leaves before the termination of the voyage, he may recover quantum meruit. Robins v. Power, xciii. 778 ; 4 C. B. N. S. 778. The fact of a consumer of gas having fitted up his house to accommodate the pipes, made quarterly payments and hired a metre by the year, does not imply a contract by the company to continue the supply. Hoddesdon Gas Co. v. Hasel- wood, xcv. 239 ; 6 C. B. N. C. 239. The terms of the tenant and sub-tenant expiring on the same day, the landlord refused subsequent rent from the sub-tenant in possession preferring the tenant, who paid the rent after bringing this suit against sub-tenant, held evidence of implied contract. Levi ». Lewis, xcv. 766 ; 6 C. B. N. S. 766. Affirmed in Exchequer Chamber, xcix, 872 ; 9 0. B. N. S. 872. Where a child of tender years is brought by an older person to any conveyance, there is an implied condition that it is to be conveyed subject to proper care on the part of the custodian. Waite v. N. E. Railway Co., xcvi. 719 ; E., B. & E. 719. Trade assignee in bankruptcy not personally liable to messenger for work, un- less there be an express contract. Stubbs v. Twynam, xcvii. 719 ; 7 C. B. N. S. An action does not lie upon the implied contract contained in the defeasance of a warrant of attorney. Sherborn v. Tollemache, cvi. 742 ; 13 C. B. N. S. 742. No implied agreement that vessel should be fit to receive engines when con- tract shows that risk is assumed by shipper. Blech v. Balleras, cvii. 203 ; 3 E. & E. 203. Vol. III.— 9 130 CONTRACT, IV. (2).— V. (a), (J). In a contract by physician to pay one-fourth of earnings for good will, there is an implied covenant not to prevent the receipt of earnings by wilful default. Mclntyre v. Belcher, cviii. 654 ; 14 C. B. N. S. 654. That plaintiff has incapacitated himself from performing the contract, is a good defence. Ibid. A covenant on the part of a contractor to carry the mails " required by the commissioners or postmaster-general to be conveyed," between certain points, to be paid for " out of funds to be provided by parliament for that purpose," does not imply a covenant on behalf of the commissioners to employ him for that pur- pose. Churchward v. The Queen, cxviii. 807 ; 6 B. & S. 807. V. Statute of frauds. (a) Contracts relating to realty. Shares in a mine worked on the cost book principle not an interest in land. Powell v. Jessopp, lxxxvi. 336 ; 18 C. B. 336. Shares in cost book mine not necessarily interest in land. Walker v. Bartlett, lxxxvi. 845 ; 18 C. B. 845. Agreement by parol to return a certain part of the consideration paid for an interest in a house, provided a license could not be obtained, not within statute. Green v. Saddington, xc. 503 ; 7 E. & B. 503. Verbal agreement by plaintiff with a tenant to take possession of a brickyard, take the plant and bricks at a valuation, and that the defendant should pay all the rent due, and induce landlord to accept plaintiff as a tenant, is void under s, 4. Hodgson ». Johnson, xcvi. 685 ; E., B. & E. 685. Any agreement between landlord and tenant, which results in a change of possession, amounts to a surrender by act and operation of law, under 29 Car. 2, c. 3. Phene v. Popplewell, civ. 334 ; 12 C. B. N. S. 334. A parol agreement for board and lodging of defendant, his mare and horse, at a fixed sum per annum, the agreement to be terminable by a quarter's notice, is not a contract for any interest in or concerning land, within sect. 4, Statute of Frauds. Wright v. Stavert, cv. 721 ; 2 E. & E. 721. Where one paper refers to another, in which terms of agreement are stated, it is sufficient. Fitzmaurice v. Bayley, cvii. 772 ; 3 E. & E. 772. But it must refer with sufficient "directness and state duration of term. Ibid. And the ratification of an insufficient paper would not make it good. Ibid. Recovery can be had for breach of written agreement, not by deed, giving liberty to dig and carry away cinders. Smart v. Jones, cix. 717 ; 15 C. B. N. S.717. . An instrument void as a lease, may be good as an agreement for leasing. Ti- dey v. Mollett, cxi. 298 ; 16 C. B. N. S. 298. Hayne v. Cummings, cxi. 421 ; 16 C. B. N. S. 421. When balance is settled in an account stated and one of the items is for pur- chase-money of land, the contract being verbal and against the Statute of Frauds, the balance can be recovered in aecount stated. Laycock v. Pickles, cxvi. 497 ; 4 B. & S. 497. (o) What is a promise tor the debt or another. To bring it within the statute the promise must be made to the original creditor. Reader v. Kingham, cvi. 344 ; 13 C. B. N. S. 344. An agreement by C, if A. would supply goods to B. upon a month's credit, to pay A. in cash, less 3 per cent, and take B.'s bill without recourse. Mallets. Bateman, cxi. 530 •, 16 C. B. N. S. 530. A statement in writing to become responsible for the payment ot money according to a contract, the contract containing clause for extra work, will be binding as a guaranty for the extra work. Andrews v. Lawrence, cxv. 7o8 ; iv> C. B. N. S. 768. Affirmed in Exchequer Chamber, Ibid. 779. And even if an immaterial alteration be made after the giving of the guaranty, it will still be binding. Ibid. „„„«. Entering into recognisance of bail at the request of another for appearance of A. on a criminal charge, is not within s. 4 of the Statute of Frauds, 29 Car. i, C. 3. Cripps v. Hartnoll, cxvi. 414 ; 4 B. & S. 414. CONTRACT, V. (c), (d), (e), (/). 131 (c) Contract not to be performed within a tear from the making. A contract of hiring, made March 24th, to commence on the 25th, is not void for want of a memorandum. Cawthorne v. Cordrev, cvi. 406 ; 13 C. B. N. S. 406. J (d) Contract for sale within statute of frauds. Contract for sale of goods of the value of 10Z. is within the statute, though it include something else, and the price of each is not determined. Harman v. Reeve, Ixxxvi. 587 ; 18 C. B. 587. A promise by the assignee of a contract of sale to pay the original vendor, in consideration of his giving up his lien, is not within the statute. Fitzgerald v. Dressier, xciv. 885 ; 5C.B. N. S. 885. Also xcvii. 374 ; 7 C. B. N. S. 374. (e) Delivery and acceptance within the exception to the 17th section. Where defendant in possession of goods, bought of plaintiff by A., agrees with consent of A. to become purchaser himself, no written contract required between A. and plaintiff. Douglas v. Watson, lxxxiv. 685 ; 17 C. B. 685. Goods sold and delivered to defendant, who alleged they were received as security, sufficient acceptance. Tomkinson v. Staight, lxxxiv. 697 ; 17 C. B. 697. Acceptance upon the terms of the bargain not required. Ibid. Where plaintiff testified that the vendee, alleging the seed to be hot and mouldy, spread it out thin to dry, but that plaintiff, vendor, did not authorize the act and that the seed was in good condition, held evidence of acceptance. Parker v. Wallis, lxxxv. 21 ; 5 E. & B. 21. Where the sale of a horse was made, but the vendor retained him as a loan, there was a sufficient acceptance. Marvin v. Wallis, lxxxviii. 726 ; 6 E. & B. 726. No delivery and acceptance where tenant in possession, with an option to buy under a verbal contract, tenders the money and it is refused. Taylor v. Wake- field, lxxxviii. 765 ; 6 E. & B. 765. Where buyer takes samples from the bulk after purchase, it is sufficient. Gardner v. Grout, lxxxix. 340 ; 2 C. B. N. S. 340. Direction by vendee that the goods should be sent to him by sea from a cer- tain wharf, followed by delivery at the wharf whence they were sent by the wharfinger and lost, is not an acceptance within the statute. Hart v. Bush, xcvi. 494 ; E., B. & E. 494. Where defendant selected specific goods, ordering them to be sent to a wharf where he had for years stored similar goods, and they were sent and thence de- livered on his order, it is sufficient. Cusack v. Kobinson, ci. 299 ; 1 B. & S. 299. Acceptance may be before delivery. Ibid. Where a carrier had warehoused the goods for vendee, who by custom had a right to compare them with sample before accepting, and vendee after comparing did not object, but being embarrassed, ordered them not to be sent home at that time, held no acceptance. Nicholson v. Bower, cii. 172; 1 E. & E. 172. An offer must be accepted in writing by the vendor, before the sale is complete. Felthouse v. Bindley, ciii. 868 ; 11 C. B. N. S. 868. Where defendant had ordered goods to be shipped, on a ship selected by him, with other goods of his own, and the bill of lading had been made out by his direction, and received by him after repaying the plaintiff the freight, and kept for a year, this is evidence of a delivery. Currie v. Anderson, cv. 591 ; 2 E. & E. 591. Where, on sale by sample, the buyer's foreman, before prompt day, attended at the warehouse of sellers factor, saw the goods weighed, compared them, and adjusted allowances, it was a sufficient- acceptance. Simmonds v. Humble, cvi. 258 ; 13 C. B. N. S. 258. On a sale by sample, before the buyer has ascertained whether the bulk corre- sponds there is no acceptance. Smith v. Hudson, cxviii. 431 ; 6 B. & S. 431. (f) Goods, wares and merchandize within meaning of 17th section. An agreement to make an artificial set of teeth. Lee v. Griffin, ci. 272 ; 1 B. & S. 272. 132 CONTRACT, V. (g), (K). (g) Sufficient note in writing, within 17th section. Entry of goods with prices in order book on fly-leaf of which were the names of the vendors, signed by the vendee, sufficient. Sari v. Bourdillon, lxxxvii. 188 ; 1 C. B. N. S. 188. Though one article entered as, " candlestick complete," and it was proven that a gallery for a musquito shade was to be added. Ibid. Though it did not mention that payment to be made by the check of a third party. Ibid. An agent exceeding his authority, having made an agreement which was an assignment of a term or an underlease, the principal wrote " I must support him in all he has done," but did not refer to the duration of the term ; held sufficient memorandum in writing. Fitzmauriee v. Bayley, lxxxviii. 868 ; 6 E. & B. 868. Keversed in Ex. Ch., xcii. 664 ; 8 E. & B. 664. A note signed by defendants as brokers, stating "sold this day," for T., "to our principal," accompanied by a note of T., also broker, stating that he had sold to defendants for account of the plaintiff, and by evidence of a custom that a broker buying for an undisclosed principal is liable, is sufficient. Hum- frey v. Dale, xc. 266 ; 7 E. & B. 266. Affirmed in Ex. Ch., xcvi. 1004; E., B. & E. 1004. A letter may be sufficient though it repudiate liability. Bailey v. Sweeting, xcix. 843 ; 9 C. B. N. S. 843. To a letter, asking appointment of a day for fitting artificial teeth, a reply regretting that health prevents taking advantage of the early day and fearing inability for some days, not sufficient. Lee v. Griffin, ci. 272 ; 1 B. & S. 272. Where an offer of purchase has been made in writing, there is no sale until it is accepted in writing. Felthouse v. Bindley, ciii. 868 ; 11 C. B. N. S. 868. Qucere, by Willes, J. Was there any contract at all ? Ibid. Sold note of broker, acting as agent for both parties, sufficient as to buyer to satisfy requirements of statute, in action by seller. Parton v. Crofts, cxi. 11 ; 16 C. B. N. S. 11. (h) Contract in writing within 4th section. A written proposal, signed by defendant, and accepted by plaintiff orally, is sufficient. Smith v. Neale, lxxxix. 67 ; 2 0. B. N. S. 67. Where what the plaintiff is to do, constituting the entire consideration, can be performed within a year, and it does not appear that any part was to be post- poned beyond that time, it is not within 4th section. Ibid. An agent exceeding his authority, having made an agreement, which was an assignment of a term or an underlease, the principal wrote, " I must support him in all he has done," but did not refer to the duration of the term ; held, sufficient memorandum in writing. Fitzmauriee v. Bayley, lxxxviii. 868 ; 6 E. & B. 868. Keversed in Ex. Ch., xcii. 664 ; 8 E. & B. 664. A promise by the assignee of a contract of sale to pay the original vendor, in consideration of his giving up his lien, is not within the statute. Fitzgerald v. Dressier, xciv. 885 ; 5 C. B. N. S. 885. Also xcvii. 374 ; 7 C. B. N. S. 374. _ Though since 19 &20 Vict. c. 19, s. 3, parol evidence may supply the consid- eration for a guaranty it cannot explain the promise. Holmes v. Mitchell, xcvii. 361 ; 7 C. B. N. S. 361. The writing may be explained by parol evidence to show what duties a party to it engaged to perform. Price v. Mouat, ciii. 508 ; 11 C. B. N. S. 508. A memorandum agreement, to be responsible for debt of another, must con- tain names of both parties, though it need be signed only by party to be charged. Williams v. Lake, ey. 348 ; 2 E. & E. 348. A mere proposal for renting a house; not specifying commencement or dura- tion of term, not sufficient memorandum in writing. Clark v. Fuller, cxi. 24 ; 16 C. B. N. S. 24. And this would be so where the agent was not authorized to act for the per- son making the proposal, even though the agent had informed his principal of the proposal, with the assent of the party making it. Ibid. CONTRACT, VI. (a), (6), (e). 133 VI. Remedy foe breach of Contract. (a) Generally. Cannot be enforced by mandamus. Benson v. Paull, Ixxxviii. 273 ; 6 E. & B. 273. No stranger to the consideration can take advantage of a contract though made for his benefit. Tweddle v. Atkinson, ci. 393 ; IB. & S. 393. Contract, not by deed, to dig and carry away cinders, perfectly valid, and re- covery can be had for breach. Smart v. Jones, cix. 717 ; 15 C. B. N. S. 717. The rights of the parties are to be judged of by that law by which they may justly be presumed to have bound themselves. Lloyd v. Guibert, cxviii. 100 ; 6 B. & S. 100. Where the contract of affreightment does not provide otherwise, the law of the ship should govern in respect to sea damage and its incidents. Ibid. (6) Pleadings. Where defendant bought coals, upon agreement to send vessel for as many as it could carry during nine months, a plea that coal furnished did not correspond with that shipped on trial, is bad. Jonassohn v. i'oung, cxvi. 296 ; 4 B. & S. 296. And a plea that the vessel was detained an unreasonable time is bad. Ibid. (c) Damages. Damages given by jury for non-completion of ship, for difference between what she probably would have earned, had she been ready at time agreed upon, when freights were high, and what she did earn when delivered, not ground for new trial. Fletcher v. Tayleur, lxxxiv. 21 ; 17 C. B. 21. Quaere, should the measure of damage in such a case be the average profit earned by the use of such a chattel. Ibid. Where vendor, without fault, is unable to make good title, he is not liable in damages, beyond expenses. Pounsett v. Fuller, lxxxiv. 660 ; 17 C. B. 660. Nor for expenses of futile attempts to substitute new contract, incurred after failure of old. Ibid. For breach of contract, for sale of shares, the measure is difference between contract price and market value at time of breach. Powell v. Jessopp, lxxxvi. 336 ; 18 C. B. 336. Held, to be liquidated in a covenant not to practice as a surgeon, save in a limited manner, and on breach, to pay 20001., not as a penalty' but as liquidated damages. Reynolds v. Bridge, lxxxviii. 528 ; 6 E. & B. 528. For delivering goods of inferior quality, the measure is the difference between the value of the goods contracted for and of thoBe delivered at the time of deli- very. Loder v. Kekule, xci. 128 ; 3 C. B. N. S. 128. Fact of prepayment not considered. Ibid. Where plaintiff was to receive commissions on the invoice prices, he was per- mitted, on a breach, to show the value without producing the invoices. Plank v. Gavila, xci. 807 ; 3 C. B. N. S. 807. Do not include resulting damages recovered by a third person against plaintiff, of which outside contract defendant was not informed. Portman v. Middleton, xciii. 322 ; 4 C. B. N. S. 322. The conditions of a vendue providing that in case of failure to comply with them the deposit money shall be forfeited, a re-sale made, and the defaulter be responsible for any deficiency and expenses, the vendor cannot recover the whole difference between the two sales as well as the deposit money. Ockenden v. Henly, xcvi. 485 ; E., B. & E. 485. Carrier negligent in delivering is liable for difference between value at the time of delivery and value at the time the goods should have been delivered. Wilson v. L. Y. Railway Co., xcix. 632 ; 9 C. B. N. S. 632. For breach of contract to deliver a threshing-machine at a fixed time, defend- ant held liable for injury to wheat by rain, cost of drying, hauling, &c, but not decline in market. Smeed v. Foord. cii. 602 ; 1 E. & E. 602. Vendor of goods to be delivered accepting a bill in payment may withhold de- livery, if vendee become insolvent and the bill be dishonored. Griffiths v. Perry, cii. 680; 1 E. & E. 680. 134 CONTRACT, VI. (e). COPYHOLD, I. And though vendor before dishonor have committed a breach of contract, and his delivery order been endorsed over, only nominal damages are recoverable. Ibid. Where there has been a technical breach of contract merely, the damages will be nominal only. Steer v. Crowley, cviii. 337 ; 14 C. B. N. S. 337. Where a broker was, by contract with company, to be paid 4002. for disposing of shares, when the shares were allotted, and the company was wound up before allotment, he could recover such sum as a jury finds reasonable. Inch- bald v. W. Neilgherry Coffee Co., cxii. 733 ; 17 C. B. N. S. 733. The 400Z would not be the measure of damages. Ibid. Damages for non-delivery according to contract, when too remote. Borries v. Hutchinson, cxiv. 445 ; 18 C. B. N. S. 445. Measure of damages for breach of contract by non-delivery. Am. Ed., note, Borries v. Hutchinson, cxiv. 445 ; 18 C. B. N. S. 445. Damages for breach of contract must be the direct natural or necessary conse- quence. Ibid. Damages cannot include, in an action for defect of title in lease made, more than the actual loss proved. Lock v. Furze, cxv. 96 ; 14 C. B. N. S. 96. But such loss can be proved, where it is a lease by one who has no title to grant it, contrary to the usual rule in regard to defect of vendor's title in sale of real estate. Ibid. Measure of damages, where a policy of life insurance, assigned as collateral security by defendant to plaintiff, became void by defendant's breach of condition, is the present value of the policy. Hawkins v. Coulthurst, cxvii. 343 : 5 B. & S. 343. The measure of damages against a carrier for not delivering goods at the place of destination, where there is no market, is the cost of the goods, transportation, and a reasonable importer's profit. O'Hanlan v. G. W. Railway Co., cxviii. 484; 6 B. & S. 484. Loss of profits on a resale not allowed as damaiges for breach of contract to deliver. Williams v. Reynolds, cxviii. 495 ; 6 B. & S. 495. CONTEIBUTION. One who, being jointly liable with others, pays the entire judgment, after arres- . on a ca. sa., is entitled to an assignment of it, under 19 & 20 Vict., c. 97. Batcht ellor v. Lawrence, xcix. 543 ; 9 C. B. N. S. 543. Where the relationship of surety exists, there is contribution without regard to the form of the instrument. Reynolds v. Wheeler, c. 561 ; 10 C. B. N. S. 561. COPYHOLD. I. Generally. II. Surrender and admittance. I. Generally. Where tenant pays steward illegal fines and fees upon admittance under pro- test, he can recover them back as money had and received. Traherne v. Gardner, lxxxv. 913; 5E. &B. 913. Where copyhold divided into parcels several of which become united in one tenant, lord may compel several admittances. Ibid. Steward entitled to fees for each, quantum meruit : but Vis. 4<£. is rank. Ibid. Not entitled to separate fee for each joint tenant. Ibid. Where lands devised he is entitled to fee for surrender to use of will though such surrender not now necessary. Ibid. COPYHOLD, I, II. 135 Custom that a grant, by copy of court-roll to three for their lives and the life of the longest liver of them successively, gave to the first taker a power of abso- lute alienation during his lifetime, is good and may be proved by showing four instances. Phillips v. Ball, xcv. 811 ; 6 C. B. N. S. 811. The lord having granted the inheritance, the copyhold tenant may dispose of his interest to the grantee by ordinary conveyance. Ibid. Devise of copyholds, in the absence of a custom to entail to A. for life, and after his decease to B., son of A., and the heirs male of his body, with proviso that if B. should die without leaving issue male of his body, lawfully begotten, him surviving, then after death of A. and B., which should last happen to C, his heirs and assigns for.ever, gives A. an estate for life, B. a conditional fee, and C. an executory devise. Hardcastle v. Dennison, c. 606 ; 10 C. B. N. S. 6t)6. A custom for copyhold tenants to fell timber and retain the same to their use, without license of the lord, though the timber is not felled for necessary repairs, is reasonable. Blewett v. Jenkins, civ. 16 ; 12 C. B. N. S. 16. Where the tenant of a copyhold holds under a corn-rent, or annual sum of money in lieu thereof, the tenant can elect which he will pay. Ibid. Certain rights to land in manor for life, called customary rights, though in the nature of copyhold, are, it seems, not copyhold estates. Garbutt v. Trevor, cix. 550; 15 C. B. N. S. 550. A grant, by the lord of a manor, of a copyhold tenement, to himself, is void. Dean, &c, o. Duke of Buckingham, cxii. 391 ; 17 C. B. N. S. 391. When the lessee of a manor does acts inconsistent with an assignment of the lease in trust, he will not be considered the agent of the trustees. Ibid. Custom for copyholders at inheritance, from time immemorial, without license, to dig clay without limit, from their tenements, for making bricks to be sold off the manor, is a good custom. Marquis of Salisbury v. Gladstone, cxii. 843 ; 17 C. B. N. S. 843. Such a custom is reasonable. Ibid. Although the right to the soil is in the lord, neither lord nor tenant can work mines without a custom : per Lord Chelmsford. Ibid. Enfranchisement, under the copyhold acts, discharges restrictions against building, imposed on the creation of the copyhold from waste. Brabant v. Wil- son, cxviiL 979 ; 6 B. & S. 979. II. Surrender and admittance. The admittance of tenant for life, on a surrender to the use of the will, is an admittance of those in remainder. Smith v. Glasscock, xciii. 357 ; 4 C. B. N. S. 357. After such admittance, one remainderman, who gets himself admitted in respect of the whole as heir at law of the devisor, has no title to the share of another remainderman as against a stranger in possession. Ibid. An admittance prior to 4 & 5 Vict. c. 35, by the steward out of the manor, is bad, but may be rendered valid by special authority of the lord, or by his subse- quent ratification, ana notification tp the homage. Doe d. Gutteridge v. Sowerby, xcvii. 599 ; 7 C. B. N. S. 599. Custom that the lord may assess a fine not restricted to any number of years' value is bad. Douglass v. Earl Dysart, c. 688 ; 10 C. B. N. S. 688. But one heriot is due upon an alienation by several joint tenants. Padwick v. Tyndale, cii. 184 ; 1 E. & E. 184. A mortgagee of copyhold premises cannot maintain ejectment until he has been admitted. Rayson v. Adcock, civ. 867 ; 12 C. B. N. S. 867. Copyhold sold at auction, under authority in will, does not require previous admission of executor or heir to entitle purchaser to admission. Regina v. "Wil- son, cxiii. 201 ; 3 B. & S. 201. Son, devisee of copyhold from father having legal estate but never admitted, must pay two fines, one for himself, another for father, when admitted. Lord Londesborough v. Foster, cxiii. 805 ; 3 B. & S. 805. 136 COPYRIGHT. COPYRIGHT. Where A. employed B. to prepare drama, paid expenses, and it was understood that A. should have right of representation in London, and B. in the country, held that B. was author and proprietor. Shepherd v. Conquest, lxxxiv. 427 ; 17 C. B.427. Assignment must be in writing. Ibid. Qucere, can copyright become vested ab initio in an employer other than per- son who composed the work? Ibid. Court will not expunge or vary entry of proprietorship in registry book, unless it is clearly shown to be false. Ex parte Davidson, lxxxvi. 297 ; 18 C. B. 297. Nor will they enlarge rule until right ascertained, refusing the entry as evi- dence. Ibid. Qucere, whether one, who without right published a book, entered in wrong name, before that of real proprietor was by rule of court substituted, is entitled to ask for expunging of entry. Ibid. One who copyrights a combination of an old air with words prelude and ac- companiment of his own, may maintain action for infringement of the whole. Lover v. Davidson, lxxxvii. 182 ; 1 C. B. N. S. 182. Receipt for purchase-money no evidence of assignment of American copyright. Ibid. Description of the place of abode of proprietor of copyright who was abroad, made in the entry at Stationers' Hall, as " 65 Oxford St.," the address of his publishers, held sufficient. Ibid. One who designs a dramatic representation, and engages another to write the music for a reward, with an agreement that it shall become a part of the repre- sentation, is the owner of the music. Hatton v. Kean, xcvii. 268 ; 7 C. B. N. S. 268. Dramatization of a novel and representation on the stage no infringement Reade v. Conquest, xcix. 755 ; 9 C. B. N. S. 755. A combination of old designs to be protected, under 5 & 6 Vict. c. 100, must constitute one new design and not a multiplicity. Norton v. Nicholls, cii. 751 ; IE. &E. 761. Leaving with the registrar an entire shawl, manufactured according to the combination relied on, with an intimation that it was to be applied to class 8, is an insufficient registration. Ibid. A notice, under s. 7, must deny that consent has been given. Ibid. A copyright for a drama is infringed by taking from a novel written by the author of the drama scenes which have been transferred to it from the drama. Reade v. Conquest, ciii. 479 ; 11 C. B. N. S. 479. Publication and sale of photographic copies of an engraving, an infringement of copyright, under 17 Geo. 3, c. 57, and prior statutes. Gambart v. Ball, cviii. 306 ; 14 C. B. N. S. 306. Qucere, how far the protection extends. Ibid. Purchase money due for copyright is a book debt when entered in a diary, within 24 & 25 Vict. c. 134, s. 137. Shipley ». Marshall, cviii. 5G6 : 14 C. B. N. S. 566. _ J Proprietor of theatre letting it for one night to performer, and furnishing lights, actors, &c, for specified sum, liable for violation of copyright in represen- tation of piece. Marsh v. Conquest, cxii. 418 ; 17 C. B. N. S. 418. _ Assignee of author cannot recover, under 3 & 4 Wm. 4, c. 15, for representa- tion of piece, against owner of theatre receiving one-half the gross profits as pay for the use of the building, even though his servants collect the money. Lynn v. Knowles, cxiii. 556 ; 3 B. & S. 556. Such a person is neither representing the piece nor is he a partner. Ibid. By 5 & 6 Vict. c. 45, s. 22, the assignment of a copyright does not pass also the right of representation. Marsh v. Conquest, cxii. "418 ; 17 C. B. N. S. 418 : Lacy v. Rhys, cxvi. 873 ; 4 B & S. 873. The registration of a piece of woven fabric, on which is a new collocation of an old star on an old ground, is good and sufficient, within 21 & 22 Vict. c. 70, s. 5. McCrea v. Holdsworth, cxvii. '495 ; 5 B. & S. 495. CORONER, I., II. CORPORATION, I., (a), (6). 137 CORONER. I. Generally. II. Inquest. I. Generally. Quarter Sessions determine without review, whether coroner entitled to his fees, under 25 Geo. 2, c. 29. Regina v. Gloucestershire, xc. 805 ; 7 E. & B. 805. Alitor, as to fees under 7 Wm. 4 & 1 Vict. c. 68, s. 3. Ibid. Will be restrained by writ of prohibition from holding inquest to inquire into origin of a fire, where no death occurred. Regina v. Herford, cvii. 115 ; 3 E. & E. 115. No action of slander will lie against coroner holding an inquest, for words falsely and maliciously spoken. Thomas v. Churton, ex. 475 ; 2 B. & S. 475. Quaere, if there were want of reasonable and probable cause. Ibid. II. Inqcest. Court will remove coroner's inquisition and indictment for murder from county, if it appear that fair trial cannot be had. Regina v. Palmer, lxxxv. 1024 ; 5 E. & B. 1024. Inquest can only be held on a dead body, and that must be super visum cor- poris. Regina v. Herford, cvii. 115 ; 3 E. & E. 115. A second inquest cannot be held while the first is still existing. Regina ». White, cvii. 137 ; 3 E. & E. 137. The first writ must be quashed and a writ melius inquirendum granted. Ibid. Under 24 & 25 Vict. c. 100, s. 6, it is not necessary for the inquisition to set forth the manner in which or the means by which, the death was caused. Re- gina v. Ingham, cxvii. 257 ; 5 B. & S. 257. Since 6 & 7 Vict. c. 83, s. 2, .the inquisition will not be quashed for omitting to state the time at which the offence was committed. Ibid. Nor because the jury viewed the body separately. Ibid. It is no ground to quash the inquisition, that evidence was received not upon oath, or that the coroner directed the jury improperly, or that there was no evi- dence to warrant the finding. Ibid. CORPORATION. I. Generally. II. Municipal corporations. What constitutes. III. Proceedings by. 13 Members and officers. IV. Proceedings against. (c) By-laws and resolutions. V. Quo warranto. (d) Contracts of. VI. Mandamus. (e) Other matters. VII. Friendly societies. I. Generally. (a) What constitutes. A vicar choral of the church of Wells, in Somerset, is a corporation sole. Gleaves v. Parfitt, xcvii. 838 ; 7 C. B. N. S. 838. (6) Members and officers. Members of a corporation aggregate, are not entitled to be registered as voters with respect to the freeholds of the company. Acland v. Lewis, xcix. 32 ; 9 C. B. N. S. 32. The directors are personally liable for false statements in the report to stock- holders, on the faith of which plaintiff buys stock. Scott v. Dixon, cii. 1099 ; 1 E. & E. 1099. 138 CORPORATION, I. (5).— III. An officer of corporation admitted to an office, though ineligible at the time of admission, cannot be removed without being heard. Begina v. Saddler's Co., cxvi. 1059 ; 4 B. & S. 1059. (c) By-laws and resolutions. By the words " or become insolvent," in a by-law, public insolvency is meant) and not mere inability to pay 20*. in the pound. Begina v. Saddler's Co., cxvi 1059 ; 4 B. & S. 1059, reversing Ex. Ch. A by-law prohibiting the election of officers, if they should " become insolvent," when so construed, is valid. Ibid. (d) Contracts of. Contract of trading corporation with relation to the purposes of the incorpora- tion binding though not under seal. Henderson v. Royal Mail Nav. Co., lxxxv. 409 ; 5 E. & B. 409. Contract made by president by parol and without authority, but which was entered on the minutes and under which company made payments, ratified and binding. Reuter v. Electric Telegraph Co., lxxxviii. 341 ; 6 E. & B. 341. Quaere, whether where charter prevented company from giving preference they could on this ground make defence to a contract. Ibid. Contracts of a dock company not a trading corporation must be under seal. London Dock Co. v. Sinnott, xcii. 347 ; 8 E. & B. 347. "Where the deed of settlement of a joint stock company authorized the directors to draw bills for the purposes of the company, it was held not liable upon a bill drawn by them in carrying out an illegal amalgamation. Balfour v. Ernest, xciv. 601 ; 5 C. B. N. S. 601. An accountant employed by the guardians of the poor to investigate the books of their clerk aod make up the half yearly account, may recover, though the contract not under seal. Haigh v. North Bierley Union, xcvi. 873 ; E., B. & E. 873. * Agreement by a railway company to provide means by which their passengers and goods may be safely and speedily carried abroad not ultra vires. S. W. Railway Co. v. Redmond, c. 675 ; 10 C. B. N. S. 675. Power to contract without seal. Mallam v. Oxford, cv. 192 ; 2 E. & E. 192. When bonds issued by the directors of a railway company are ultra vires and void. Chambers v. M. & M. Railway Co., cxvii.*588 ; 5 B. & S. 588. (e) Other matters. Every presumption is against the legislature dealing with incorporated rights so as to alter them. Miills v. Mayor, &c, of Colchester, cxii. 635 ; 17 C. B. N. S. 635. II. Municipal corporations. Liable for bill of costs of an attorney whom it has retained under seal to defend a, mandamus affecting its powers, though the suit the result of the fault of prior officers. Lewis v. Mayor of Rochester, xcix. 401 ; 9 C. B. N. S. 401. 5 & 6 W. 4, c. 76, s. 57, giving mayor precedence in all places within the borough, refers to social not magisterial precedence. Ex parte Mayor of Bir- mingham, cvii. 222 ; 3 E. & E. 222. Hence under that act the mayor is not entitled to preside at a meeting of the borough justices at which a chairman is required. Ibid. III. Proceedings by. Where subscribers' agreement in each of two railway companies authorized directors to amalgamate the road with any other railway, and the directors of the two, by resolution and deed did amalgamate them, held the united company could maintain action for calls against shareholders of each. C. & Y. Railway Co. ». Paterson, Ixxxvi. 414 ; 18 C. B. 414. Call on a subscription contract to provide means for paying expenses of organ- izing a company enforced, though the scheme abandoned and the company not provisionally registered at time of suit. Aldham v. Brown, xc. 164; 7 E. & B. 164. Affirmed, cv. 399 : 3 E. & E. 399. CORPORATION, III.— VII. 139 Shareholders cannot agree that unpaid calk shall bo recovered as a debt due to the purser. Hybart v. Parker, xciii. 209 ; 4 C. B. N. S. 209. The Companies' Clauses Consolidation Act, 8 & 9 Vict. c. 16, authorizes an action for calls against a shareholder, not against a subscriber. Wolverhampton W. Co. v. Hawkesford, xcv. 336 ; 6 C. B. N. S. 336. No particular form of acceptance being directed by a joint stock company, a letter requestingshares, followed by an allotment, is enough to make defendant a shareholder. Bog Lead Mining Co. v. Montague, c. 481 ; 10 C. B. N. S. 481. IV. Proceedings against. Where warrant bad, corporation ordering proceedings not liable. Eggington v. Lichfield, lxxxv. 100 ; 5 B. & B. 100. Quaere, will action lie against corporation for use of a name to which another had acquired a right? Lawson v. Bank of London, lxxxvi. 84 ; 18 C. B. 84. Sections 18 and 19 of 15 & 16 Vict. c. 76, do not apply to the case of foreign corporations. Ingate v. Lloyd Austriaco, xciii. 704 ; 4 C. B. N. S. 704. An action will lie against a corporation aggregate for libel. Whitfield v. S. E. Railway Co., xcvi. 115 ; E., B. & E. 115. Semble, that it may be guilty of express malice. Ibid. A corporation aggregate is liable to be sued for malicious acts of interference with defendant by its servants, if these acts are within the scope of its formation. Green v. London General Omnibus Co., xcvii. 290 ; 7 C. B. N. S. 290. V. Quo Warranto. Proceedings in error, under Common Law Procedure Acts, do not apply to quo warranto. Regina v. Seale, lxxxv. 1 ; 5 E. & B. 1. Does not lie against a clerk to the justices of a borough. Regina v. Fox, xcii. 939 ; 8 E. & B. 939. Venue may be changed by court on an information on return of quo warranto upon suggestion showing^ that it can be more conveniently tried. Clark v. The Queen, cvii. 147 ; 3 E. & E. 147. Costs allowed where there is judgment by default on a quo warranto against one improperly exercising the office of mayor of town. Lloyd v. The Queen, ex. 656 ; 2 B. & S. 656. Refused on ground that evidence not sufficient. Regina v. Fisher, cxvi. 575 ; 4 B. & S. 575. Lies to the office of guardian of the poor. Regina v. Hampton, cxviii. 923 ; 6B. &S. 923. VI. Mandamus. Not granted to compel registration of a deed, transferring shares, not in the statutory form and containing other matters. Regina v. General Cemetery Co., Ixxxviii. 415 ; 6 E. & B. 415. To the visitors of the College of Doctors' Commons, requiring them to inquire as to the disposition of the property, refused. In re John Lee, xcvi. 8G3 ; E., B. & E. 863. To compel a company to restate name of shareholder on registry, where it has been taken off mero motu and the name of another having no better title sub- stituted. Ward v. S. E. Railway Co., cv. 812 ; 2 E. & E. 812. Granted to restore one ousted from office improperly under a by-law of society. Regina v. Saddlers' Co., cxvi. 1059 ; 4 B. & S. 1059. On the prolongation of litigation by appeal to the House of Lords, on a man- damus, to a corporation in which security for costs was required, the amount may be increased. Regina v. Southampton, cxviii. 407 ; 6 B. & S. 407. VII. Friendly societies. A friendly society which enrolled its rules, but afterward framed new ones, which were not enrolled, is a subsisting society. In re Meredith et al., lxxxvii. 216; 1 C. B. N. S. 216. Trustees are not "persons interested," within the meaning of 18 & 19 Vict. c. 63, s. 41. Hull v. MoFarlane, lxxxix. 796 ; 2 C. B. N. S. 796. 140 CORPORATION, VII. COSTS, I, II. Where copy of rules of friendly society not registered before act of 18 & 19 Vict. c. 63, was deposited with registrar, but no certificate obtained, county court had not jurisdiction of dispute. Smith v. Pryse, xc. 339 ; 7 E. & B. 339. County court has jurisdiction in a dispute concerning the manner of conven- ing, and the place of holding a meeting of a friendly society, to amend the rules. Hoey v. MacFarlane, xciii. 718 ; 4 C. B. N. S. 718. Arbitrator, under the Friendly Societies Act may refuse to hear counsel. In re Macqueen, xcix. 793 ; 9 C. B. N. S. 793. County court has jurisdiction, under 18 & 19 Vict. c. 63, to order the reinstate- ment of a member of a friendly society, improperly expelled. Ex parte Wool- dridge,_ci. 844 ; 1 B. & S. 844. Liability of individual members of, for contract, before 25 & 26 Vict. c. 87.- Dean v. Mellard, cix. 19 ; 15 C. B. N. S. 19. Rules of a friendly society, adopted at a meeting called by the officers, at a different place from that fixed by existing rules, are null and void. Regina v. Tidd Pratt, cxviii. 672 ; 6 B, & "S. 672. COSTS. I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. Security for Costs. XVII. Where several issues. XVIII. Where money paid after action XIX. brought. XX Costs of former action. XXI. Costs of former trial. XXII. Setoff of Costs. XXIII. Costs in the cause. XXIV. Rules and orders. XXV. Witnesses. XXVI. Arbitration. XXVII. Assault. XXVIII. Attorney. Bankruptcy. XXIX. Case stated. XXX. Certiorari. XXXI. Criminal proceedings. Ejectment. Elections. Error and appeal. Under interpleader act. Libel. Prohibition. Quo warranto. Slander. Tender. Certificate of judge as to costs. Taxation. Where inferior courts have jurisdiction. Summary proceedings. Execution for. Other matters. I. Security for costs. An Irishman ordinarily resident in Ireland and having no place of abode in England, is not exempt from giving security for costs, because he is an officer of the army serving in Ireland. Chappell v. Watts, cv. 879 ; 2 E. & E. 879. Security required where plaintiff is a foreigner, not residing permanently in the jurisdiction and who had conveyed away his interest in the result. Zych- lenski v. Maltby, cviii. 322; 14 C. B. N. S. 322. Security for costs of former action refused, plaintiff being bankrupt with sus- pended certificate. Prowse v. Loxdale, cxiii. 896 ; 3 B. & S. 896. On the prolongation of litigation by appeal to the House of Lords, on a man- damus to a corporation in which security was required to be given for costs, the amount may be increased. Regina v. Southampton, cxviii. 407 ; 6 B. & S. 407. II. Where several issues. On a plea of never indebted to an action for money had, &c, to recover back fees paid, the issue may be distributed and costs taxed for defendant for the residue, if plaintiff does not establish his whole demand. Traherne v. Gardner, xcii. 161 ; 8 E. & B. 161. Where plaintiff claims a large sum and recovers only part, when the matter COSTS, II— VII. 141 will admit of a division, defendant is entitled to the costs for that part on ■which he succeeds. Paterson v. Harris, ex. 814 ; 2 B. & S. 814. This is so whenever the issues can be distributed. Ibid. III. Where money paid after action brought. In indebitatus assumpsit for separable items, a verdict for plaintiff for less than 20J., over a tender found for defendant, will not, under directions to masters, Hil. Term 1853, carry costs on a higher scale than the amount due plaintiff over the tender. James v. Vane, cv. 882 ; 2 E. & E. 882. Under 13 & 14 Vict. c. 61, s. 11, money taken out of court when it is less than 201. is not money recovered and party so doing not entitled to costs. Boulding v. Tyler, cxiii. 472 ; 3 B. & S. 472. IV. Costs oe former action. Court will not stay action of trespass until costs in former action for same trespass paid. Danvers v. Morgan, lxxxiv. 530 ; 17 C. B. 530. Unless second action oppressive and vexatious. Ibid. Semble, that this rule confined to ejectment. Ibid. 43 Geo. 3, c. 46, s. 4, does not apply to an action where a count on a judgment is joined with a count on some other cause of action. Jackson v. Everett, ci. 857; IB. AS. 857. Proceedings stayed until payment of costs of former action, where plaintiff suffered nonsuit. Prowse v. Loxdale, cxiii. 896 ; 3 B. & S. 896. It is within discretion of court to grant a rule of this kind. Ibid. V. Costs of former trial. Where failure of justice through fault of party, new trial granted on payment of costs. Mackley v. Pattenden, ci. 178 ; 1 B. & S. 178. Plaintiff obliged to pay costs of rule and former trial, where rule to enter non- suit after verdict for defendant entered was made absolute. Sillen v. Holloway, cviii. 336 ; 14 C. B. N. S. 336. VI. Set-off of costs. Against interlocutory costs after judgment, may be set off a judgment in the same suit upon which a ca. sa. has been executed. Thompson v. Parish, xciv. 685 ; 5 C. B. N. S. 685. Costs incurred at defendant's request but not paid, an unliquidated demand, and not subject of set-off. Crampton v. Walker, cvii. 321 ; 3 E. & E. 321. No set off will be allowed for costs in different causes, to the prejudice of attor- ney's lien, under Beg. Gen. Hil., 2 W. 4, r. 93. Little v. Philpotts, ex. 383 : 2 B. & S. 383. VII. Costs in the cause. Where case referred to a master who declined and then the order was rescinded and afterward arbitrator found balance due plaintiff, costs for the abortive pro- ceedings not costs in the cause. Gribble v. Buchanan, lxxxvi. 691 ; 18 C. B. 691. Costs of interrogating opposite party, under Common Law Procedure Act, are in the discretion of the judge making the order, but if there is no direction con- cerning them, they are not allowed as costs in the cause though interrogating party successful. Smith v. G. W. Railway Co., lxxxviii. 405 ; 6 E. & B. 405. Costs upon an issue in a former trial of the same case, upon a count afterward stricken out, are not costs in the cause. Jewell v. Parr, lxxxix. 809 ; 2 C. B. N. S. 809. Defendant having taken a nonsuit in absence of plaintiff, without the jury being sworn, the entry was expunged and the cause stricken out, and the costs of the day and motion ordered to be costs in the cause. Warne v. Hill, xcvii. 726 : 7 C. B. N. S. 726. 105?. allowed as instructions for brief. Duke of Beaufort v. Ashburnham, cvi. 598 ; 13 C. B. N. S. 598. Antiquarian's charges for searches for and translations of records known to exist, allowed. Ibid. 142 COSTS, VII., VIII. Costs of examining an old witness upon interrogatories allowed, though he attended at the trial, and also the expenses of his son's presence to attend to him. Ibid. Aliter, as to short-hand notes. Ibid. Costs of preparing for trial not allowed where there has been no notice of trial. Freeman v. Springham, cviii. 197 ; 14 C. B. N. S. 197. And this though there has been judgment by default, after repeated extensions of time to plead. Ibid. Where plaintiff would be entitled to costs, if successful, he is liable to costs under 4 Jac. 1, c. 3, s. 2, if nonsuited. Cobbett v. Wheeler, cvii. 358 ; 3 E. & E. 358. Quaere, whether this rule does not apply to the general class of actions in which plaintiff would be entitled to costs and not the particular action. Ibid. Quaere, whether Wormwell v. Hailstone, 6 Bing. (19 E. C. L. R.) 668, was well decided. Ibid. Quaere, whether a nominal defendant, under 3 Geo. 4, c. 126, s. 74, would have been exempt. Ibid. Course pursued when one of two defendants is struck out in an action of con- tract. _ Shand v. Grant, cix. 324 ; 15 C. B. N. S. 324. On judgment by default, where on writ of inquiry jury allowed nothing in two counts, plaintiff nevertheless entitled to costs of necessary and material witnesses. Dods o. Evans, cix. 621 ; 15 C. B. N. S. 621. Costs of rule to set aside improper trial are costs in the cause. Cawley ». Knowles, cxi. 107 ; 16 C. B. N. S. 107. Costs of " preparing for trial" not allowed to defendant when there is a dis- continuance before notice of trial. Curtis v. Piatt, cxi. 465 ; 16 C. B. N. S. 465. And it will make no difference that plaintiff has liberty to set down the cause for trial before issue joined. Ibid. Costs of preparing notice of objections to patent not allowed before notice of trial. Ibid. It seems that these are part of the costs of preparing for trial. Ibid. But quaere, whether they are allowable at all. Ibid. Costs of witness to irrelevant matters in attendance not allowed. Speeding v. Young, cxi. 824 ; 16 C. B. N. S. 824. Under 15 & 16 Vict., c. 54, s. 4, a plaintiff though obtaining a verdict for 40s. can receive costs if his permanent place of residence be more then twenty miles from defendant. Marsh v. Conquest, cxii. 418 ; 17 C. B. N. S. 418. Costs, when allowed under 15 & 16 Vict. c. 83, s. 43, in action for infringement of patent. Bovill v. Hadley, cxii. 435 ; 17 C. B. N. S. 435. VIII. Rules and orders. On a rule where both sides partially wrong no costs allowed. In re Oxlade, lxxxvii. 454 ; 1 C. B. N. S. 454. Not granted unless asked for in the rule. In re Marriott, lxxxvii. 499 ; 1 C. B. N. S. 499. An order of Quarter Sessions on an appeal, subject to a case, being silent as to costs, a subsequent sessions could not grant them on abandonment of the appeal. Regina v. Staffordshire, xc. 935 ; 7 E. & B. 935. Costs allowed on a rule for injunction against a railway company for discrimi- nation in freights, though injunction only granted for part of the distance asked. Baxendale v. North Devon Railway Co., xci. 323; 3 C. B. N. S. 323. Costs not allowed on a rule which does not ask for them. Gleddon v. Trebble, xcix. 367 ; 9 C. B. N. S. 367. Where conduct of attorney for respondent disingenuous and papers improperly prepared, costs not allowed. Regina v. Recorder of Leeds, cvii. 561 : 3 E. & E. 561. And this though the rule is discharged. Ibid. Costs of rule to enter nonsuit, after verdict for defendant imposed on plaintiff. Sillen v. Holloway, cviii. 336 ; 14 C. B. N. S. 336. • Where it raises a fair question, rule to review master's taxation will be dis- charged without costs. Dods v. Evans, cix. 621 ; 15 C. B. N. S. 621. Where a new law was difficult of application, rule involving construction of COSTS, VIII.— X. 143 it, discharged without costs. Leigh v. Pendlebury, cix. 815 ; 15 C. B. N. S. 815. In rule for prohibition against levying rate, costs not imposed upon discharge of rule when the question is one fairly to be raised, Regina v. Consist. Court of London, ex. 3,39 ; 2 B. & S. 339. Costs of appearing to oppose a motion for a prohibition are in the discretion of the court. Norris v. Carrington, cxi. 396 ; 16 C. B. N. S. 396. Costs given on rule to admit purchaser of copyhold, under power in will, as tenant. Regina v. Wilson, cxiii. 201 ; 3 B. & S. 201. Where assignee in bankruptcy obtained a rule for the payment of money in court, in a fair case for discussion, costs will not be given against him. Murray v. Arnold, cxiii. 287 ; 3 B. & S. 287. Where a rule to show cause why a case should not be stated is made absolute without anything being said about costs, the party applying is not i \titled to them. Wakefiela v. W., R. & G. Railway Co., cxviii. 794 ; 6"B. & S. 794. The rule, that where an application against a judge's order is discharged it is discharged with costs, is not without exception. Hawkins v. Carr, cxviii. 995 ; 6 B. & S. 995. IX. Witnesses. Allowed for the defendant who was a material witness but was not called until after comment by plaintiff's counsel. Flower v. Gardner, xci. 185 ; 3 C. B. N. S. 185. A witness, subpoenaed by defendant who obtained the verdict but afterward detained by plaintiff, is not prevented from recovering expenses from plaintiff for time of detention because he has, after receiving the amount from defendant and finding it was not allowed on taxation, returned it to him by agreement. Hale v. Bates, xcvi. 575 ; B., B. & E. 575. Costs of plaintiff remaining to attend trial and testify, for a year and a half, for subsistence-money and passage-money back to India, the defendants having delayed the trial, allowed. Calvert v. Railway Co., cxiv. 306 ; 18 C. B. N. S. 306. Great care should be exercised by the master in taxation in such cases. Ibid. X. Arbitration. Costs attach to report of arbitrator in form an award, but in substance a cer- tificate. Sim v. Edwards, lxxxiv. 527 ; 17 C. B. 527. Where costs to abide event of award, aDd the award is partly for plaintiff, and partly for defendant no costs allowed. Gribble v. Buchanan, lxxxvi. 691; 18 C. B. 691. Where costs to abide event, and arbitrator empowered to direct verdict or non- suit, and he finds for plaintiff, but orders certain goods to be returned to defend- ant, plaintiff has costs. Matlock Gas Co. v. Peters, lxxxviii. 215 ; 6 E. & B. 215. Upon a reference of all matters in difference, the costs in the cause to abide the event of the award, they follow the event of the cause, as decided by the award. Reynolds v. Harris, xci. 267 ; 3 C. B. N. S. 267. Part of a multifarious plea of justification being proved, and part disproved, the plaintiff is entitled to no costs, and defendant to costs for that part proved, including for evidence applicable to that as well as to the rest of the plea. Ibid. Vide xciv. 872 ; 5 C. B. N. S. 872. On a reference to a county court judge, under 17 & 18 Vict. c. 125, s. 3, the costs are taxable in the same manner as if the reference had been to a master. Edwards v. Edwards, xciv. 536 ; 5 C. B. N. S. 536. Where, on an agreement to refer costs to abide the event, the arbitrator gives the plaintiff one farthing damages on one of the issues, he is entitled to costs. Wigens v. Cook, xcv. 784 ; 6 C. B. N. S. 784. Where costs to abide the event, and arbitrator found for defendant in set-off but awarded a balance to plaintiff on other issues, plaintiff entitled to costs. Jones v. Jones, xcvii. 832; 7 C. B. N. S. 832. Court will not interfere, where master has disallowed the attendance of more than one counsel. Hawkins v. Rigby, xcviii. 271 ; 8 C. B. N. S. 271. Aliter, where master disallowed the attendance of counsel before an accountant appointed by arbitrator. Ibid. 144 COSTS, X.— XIV. Where several disputes, growing out of an alleged breach of a contract, are referred with costs to abide the event of the award, the award must be altogether in favor of one party to entitle him to costs. Re Marsack and Webber, cv. 637 ■ 2.E. & B. 637. ' An action can be maintained for costs awarded by umpire even though not taxed. Holdsworth v. Wilson, cxvi. 1 : 4 B. & S. 1. s. c, ex. 480 ; 2 B. & S 480. ' Where, on appeal, the Quarter Sessions orders a case to be referred with con- sent of parties, under 12 & 13 Vict. c. 45, s. 13, the terms are finally settled, in- cluding the question of costs. Kegina v. West Riding, cxviii. 531 ; 6 B. & S. ool. XI. Assault. Plaintiff obtaining verdict for hi. for assault, but failing in a count for slander, not entitled to costs. Smith v. Harnor, xci. 829 ; 3 C. B. N. S. 829. XII. Attorney. Where, on the taxation of bill, the deductions were reduced below one-sixth by an addition to the bill, held that the costs of taxation should be paid by the attorney. Regina v. Eastwood, lxxxviii. 285 ; 6 E. & B. 285. Where the next friend of an infant suing, gave her address at an attorney's office, she was held entitled to full costs. Bryant v. Wilson, xci. 722 : 3 C. B. N. S. 722. Corporation liable for bill of costs of an attorney whom it has retained, under seal, to defend a mandamus affecting its powers, though the suit the result of the fault of prior officers. Lewis v. Mayor of Rochester, xcix. 401 ; 9 C. B. N. S. 401. Uncertificated attorney not entitled to costs. Fullalove v. Parker, civ. 245 ; 12 C. B. N. S. 245. No costs are taxable under 11 Hen. 7, c. 12, or Reg. Gen. Hil. 1853, r. 121, in respect of attorney's or counsel's fees and services when plaintiff sues in forma pauperis. Dooly v. 6. N. Railway Co., cv. 575 ; 2 E. & E. 575. No set-off will be allowed for costs in different causes, to the prejudice of at- torney's lien under Reg. Gen. Hil. 2 Wm. 4, r. 93. Little v. Philpotts, ex. 383 ; 2 B. & S. 383. Even where an attorney has made an agreement not enforceable in England, by reason of champerty, he is entitled to regular costs. Grell v. Levy, cxi. 73 ; 16 C. B. N. S. 73. Where attorney has agreed to prosecute the action for fixed sum for costs, he cannot recover more. Moon v. Hall, cxii. 760 ; 17 C. B. N. S. 760. Attorney's costs will not be enforced so as to prevent discharge of defendant on plaintiff's order. Langley v. Headland, cxv. 42; 19 0. B. N. S. 42. Xllf. Bankruptcy. Under 12 & 13 Vict. c. 106, plaintiff who recovers less than the sum named in his affidavit not bound for costs, if he had reasonable cause to claim the larger amount. Gilbert v. Crosier, lxxxvii. 632 ; 1 C. B. N. S. 632. Regard had to circumstances and the law not motive, in determiningwhether plaintiff liable to costs for commencing without cause proceedings under Bankrupt Consolidation Act. Hope v. Fenner, lxxxix. 387 ; 2 C. B. N. S. 387. Defendant entitled to costs, under 12 & 13 Vict. c. 106, where plaintiff filed an affidavit stating the debt to be the whole amount of a special contract for work, he having been discharged before its completion, and getting a verdict for much less. Pratt v. Goswell, xcix. 706 ; 9 C. B. N. S. 706. Trade assignee can recover against official assignee contribution for cost of ac- tion, brought with the assent of the latter. Bevan v. Whitemore (affirming cix. 433 ; 15 C. B. N. S. 433), cxv. 763 ; 19 C. B. N. S. 763. XIV. Case stated. Where there is nothing to take it out of ordinary rule, real parties held respon- sible. Hackett v. Long Bennington, cxi. 38 ; 16 C. B. N. S. 38. COSTS, XIV.— XVIII. 145 Costs of copying a case will not be allowed when there is an omission to num- ber the paragraphs in the special case. Am. Ed. note, Bayley v. Wilkinson, cxi. 161 ; 16 C. S. rf. S. 161. F ' J J XV. Certiorari. A recognisance of prosecutor on a certiorari to remove an indictment, condi- tioned to do as the court shall direct, does not authorize costs after removal, under 16 & 17 Vict. c. 30, s. 5, to the defendant on his acquittal. Regina v. East Stoke, cxviii. 536 ; 6 B. & S. 536. XVI. Criminal proceedings. On confirmation of a conviction on an appeal under 20 & 21 Vict. c. 43, the crown is entitled to costs. Moore v. Smith, cii. 596 ; 1 E. & E. 596. Costs are not given on appeal in mistaken conviction by magistrate. Leader ». Yell, cxi. 584; 16 C. B. N. S. 584. Costs not allowed in conviction for obstruction of highway, even though there has been user for twenty years. Gerring v. Barfield, cxi. 597 ; 16 C. B. N. S. 597. Costs of indictment for non-repair of highway, payable, at discretion of judge, out of highway rate, where the defendant pleads guilty, under 5 & 6 Wm. 4, c. 50, s. 95. Regina v. Haslemere, cxiii. 313 ; 3 B. & S. 313. It seems, that costs of indictment, under 5 & 6 Wm. 4, c. 50, s. 95, and 23 & 24 Vict. c. 68, s. 40, in cases of disputed liability of parish to repair, fall on highway rate. Regina v. James, cxiii. 901 ; 3 B. & S. 901. One who comes into court and pleads guilty to an indictment does not make a '' defence," within 5 & 6 Wm. 4, c. 50, s. 98, entitling prosecutor to costs. Re- gina v. Denton, cxvii. 822 ; 5 B. & S. 522. Under 25 & 26 Vict. c. 61, the court cannot direct the costs on an indictment for non-repair against the inhabitants of a parish, to be paid by them, when a jury has found that the road was not a highway. Regina v. Buckland, cxviii. 397 ; 6 B. & S. 397. XVII. Ejectment. Under the old practice, costs in ejectment can be cast upon the party really interested, though not nominally the plaintiff. Mobbs v. Vandenbrande, cxvi. 904 ; 4 B. & S. 904. And this is not changed by Common Law Procedure Act 1852, 15 & 16 Vict. c. 76, ss. 186, 221. Ibid. XVIII. Elections. In registration cases on appeals from revising barrister, semble, that where de- cision is against franchise, court will exercise their discretion in regard to costs, but where against appellant, in favor of franchise, costs of course. Clark v. Bury St. Edmonds, lxxxvii. 23 ; 1 C. B. N. S. 23. Costs not allowed, on appeal from decision of revising barrister in election case, where state of the authorities was unsatisfactory. Comb v. Huer, ciii. 32; 11 C. B. N. S. 32. Costs are not allowed to appellant, on appeal from decision of revising barris- ter in election case. Smith v. Huggett, ciii. 55 ; 11 C. B. N. S. 55. Smith v. James, ciii. 62; 11 O B. N. S. 62. The respondent will not be allowed costs on a registration appeal, when there is a reasonable ground of doubt in regard to construction of the statute. Col- lier v. King, ciii. 478 ; 11 C. B. N. S. 478. _ The appellant, in an appeal from the decision of the revising barrister, strik- ing his name from the list, as not paying a rate to which he was liable, must pay costs. Baker v. Locke, cxiv. 52 ; 18 C. B. N. S. 52. _ Costs of appeal generally allowed, where the decision of the revising barrister is affirmed, though a discretion will be exercised under extraordinary circum- stances. Powell v. Bradley, cxiv. 65 ; 18 C. B. N. S. 65. Where decision is in favor of appellant no costs allowed ; aliter, where de- cision is for respondent, unless there are special circumstances. Helis v. Blain, cxiv. 90 ; 18 C. B. N. S. 90. Vol. III.— 10 146 COSTS, XVIII.— XX. Where the case on an appeal is fairly arguable, no costs will be allowed Flateher v. Boodle, cxiv. 152 ; 18 C. B. N. S. 152. XIX. Error and appeal. Order for costs on appeal to Quarter Sessions need not direct them to be paid to clerk. Regina v. Isle of Ely, lxxxv. 489 ; 5 E. & B. 489. On appeal from county court when new trial granted. Foster v. Smith, lxxxvi. 156 ; 18 C. B. 156. Where judgment reversed in Exchequer Chamber appellant does not get costs of appeal. Young v. Moeller, lxxxviii. 681 ; 6 E. & B. 681. No costs allowed on an appeal caused by confused statement of the county judge. L. & N. W. Railway Co. v. Grace, lxxxix. 555 ; 2 C. B. N. S. 555. No costs on an appeal by an excise officer in a suit for penalty when appeal dismissed. Regina v. Beadle, xc. 492 ; 7 E. & B. 492. Where appeal from county court was stated at unnecessary length by fault of appellant, court on reversing refused costs. Evans v. Mathias, xc. 590 ; 7 E. & B. 590. Under 12 & 13 Vict., c. 45, s. 5, the Quarter Sessions may, in dismissing an appeal for want of jurisdiction, award costs. Regina v. Padwick, xcii. 704 ; 8 E. & B. 704. The want of a specific order under 12 & 13 Vict. c. 45, may be supplied by a practice known to both parties, based on a standing order that costs should follow the event. Freeman v. Read, xcix. 301 ; 9 C. B. N. S. 301. And by consent they may be taxed after the end of the sessions. Ibid. Where conviction quashed on appeal under 20 & 21 Vict. c. 43, prosecutor pays the costs. Venables v. Hardman, cii. 79 ; 1 E. & E. 79. Plaintiff not entitled to costs in Exchequer Chamber when House of Lords confirmed the judgment of the C. B. in his favor on one count, and a nolle prose- qui was entered by consent on the other. Cooper v. Slade, cii. 336 ; 1 £. & E. 336. Costs on appeals from the county court are always awarded the successful party, unless under very exceptional circumstances. Schroder v. Ward, cvi. 410 ; 13 C. B. N. S. 410. In Common Pleas, costs of appeal follow the event. Harris v. Anderson, cviii. 499 ; 14 C. B. N. S. 499. Recorder of borough acting as Quarter Sessions can allow them, when party has given notice of appeal to county Quarter Sessions. Regina v. Recorder of Leeds, cvii. 561 ; 3 E. & E. 561. Where judgment is affirmed by a divided court, no costs allowed. Archer v. James, ex. 61 ; 2 B. & S. 61. Costs on appeal from justices under 20 & 21 Vict. c. 43. Glover ». Booth, ex. 807 ; 2 B. & S. 807. After appeal entered, but subsequently struck out for want of appearance, under 5 & 6 Wm. 4, c. 50, s. 90, costs of the appeal will be given to appellant. Regina v. Justices of West Riding, ex. 811 ; 2 B. & S. 811. Non-deposit, in proper time, of costs of appeal from county court, or if appel- lant is defendant, of amount of judgment, under 1 3 & 14 Vict. c. 61, s. 14, is fatal. Norris v. Carrington, cxi. 10; 16 C. B. N. S. 10. Where there has been no unreasonable delay in tender of amount due and de- cision of justices is affirmed, costs will be allowed. Wallington v. Willes, cxi. 797 ; 16 C. B. N. S. 797. Order for payment of costs of appeal under 12 & 13 Vict. c. 45, s. 5. Gay v. Matthews, cxvi. 425, 440 ; 4 B. & S. 425, 440. Successful party in House of Lords entitled to costs in the Exchequer Cham- ber, though unsuccessful there. Peek v. North Staffordshire Railway Co., cxvi. 627; 4B. &S.627. Upon an appeal, from a conviction under 5 Geo. 4, c. 83, s. 4, being quashed, costs may be awarded against the prosecutor, not the justices. Regina v. Purdey, cxvii. 909 ; 5 B. & S. 909. XX. Under interpleader act. Where each party partially successful on an interpleader, costs to be taxed on COSTS, XX.— XXVII. 147 that principle, without reference to which was plaintiff or defendant. Clifton v. Davis, lxxxviii. 392 ; G E. & B. 392. An order for the payment of costs in an interpleader issue has the effect of a judgment, within s. 61 of 17 & 18 Vict. c. 125. Hartley v. Shemwell, ci. 1 ; 1 B. & S. 1. XXI. Libel. Where plaintiff succeeded on plea of justification, and defendant on plea of not guilty, and where plaintiff's testimony went to prove the falsity of alleged facts, as well as to raise inference of knowledge on part of defendant of their falsity, and defendant's testimony, part of which was unknown to him at time of publi- cation, was as to their truth, held, that defendant entitled to costs for all witnesses, plaintiff for none. Harrison v. Bush, lxxxv. 344 ; 5 B. & B. 344. XXII. Prohibition. Plaintiff recovering a verdict is not entitled to the costs of the proceedings in the ecclesiastical court. White v. Steele, cvi. 231; 13 C. B. N. S. 231. XXIII. QUO WARRANTO. In judgment by default, for usurping an office, defendant liable for costs under 9 Ann. c. 20, s. 5. Lloyd v. The Queen, ex. 656 ; 2 B. & S. 656. It seems that this is so whether there is a corporation or not. Ibid. XXIV. Slander. 21 Jac. 1, c. 16, providing that if plaintiff recover less than 40s. he shall only have the same amount of costs, is not repealed by 3 & 4 Vict. c. 24. Evans v. Rees, xcix. 391 ; 9 C. B. N. S. 391. XXV. Tender. There may be tender without costs 'after a letter from an attorney. Holmar v. Stevens, xcv. 932 ; 6 C. B. N. S. 932. XXVI. Certificate or judge as to costs. Certificate of judge, under 13 & 14 Vict. c. 61, s. 12, that it appeared to him there was sufficient reason for bringing suit in superior court may be given after the trial. Bennett v. Thompson, lxxxviii. 683 ; 6 E. & B. 683. Where judge erroneously gives certificate that title to land was in question, order as to costs will be rescinded. Blackmore v. Higgs, cix. 790 ; 15 C. B. N. S. 790. Refusal of judge to certify, under 13 & 14 Vict. c. 61, s. 12, is not final, though great latitude will be allowed to his discretion. Courtenay v. Wagstaff, cxi. 110 ; 16 C. B. N. S. 110. And where it appeared that a very doubtful question had been taken for granted at the trial, costs were allowed, in spite of the refusal to certify. Ibid. XXVII. Taxation. Court will not grant review of taxation on ground not specifically pointed out to master. Hore v. Saxl, Ixxxiv. 599 ; 17 C. B. 599. Where set-off to plaintiff's claim, costs taxed upon amount remaining due. Tonge v. Chadwick, lxxxv. 950 ; 5 E. & B. 950. No appeal lies from a taxation of costs by the county court, under 19 & 20 Vict. c. 108, s. 34. Carr v. Stringer, xcvi. 123 ; E., B. & E. 123. Where the plaintiff, an attorney, sent at different times two separate bills, and before the expiration of a month from the delivery of the last, proposed that defendant should waive the objection of time and accept process in one action, which defendant refused to do, it was held that the two actions commenced in consequence should be consolidated and the whole costs included in one allocatur. Beardsall v. Cheatham, xcvi. 243 ; E., B. & E. 243. Where a judge of the Queen's Bench, under 19 & 20 Vict. c. 108, s. 26, orders a trial in the county court of a case commenced in the Q. B., the master is jus- 148 COSTS, XXVII.— XXVIII. tified in taxing the costs of the county court proceedings according to the scale of that court. Wheatcroft v. Foster, xcvi. 737 ; E., B. & E. 737. Costs will not he disallowed because the party's attorney is uncertificated, where the objection is not taken before the master. Pullalove v. Parker, civ. 246 ; 12 C. B. N. S. 246. Taxation to be on lower scale under directions of Hil. Term 1853, where the sum endorsed on the writ does not exceed 20?. Copley v. Hemingway, cix. 447 ; 15 C. B. N. S. 447. Master is bound to allow for such witnesses as he conceives to be material and necessary, whether productive of anything or not. Dods v. Evans, cix. 621 : 15 C. B. N. S. 621. Great care should be exercised by the master in cases of taxation of personal costs of party to suit coming from abroad. Calvert v. Railway Co., cxiv. 306 : 18 C. B. N. S. 306. XXVIII. Where inferior courts have jurisdiction. Where amount recovered is reduced below 20?. by set-off and there is no cer- tificate, costs not allowed. Ashcroft v. Foulkes, lxxxvi. 261 ; 18 C. B. 261. Where set-off reduces claim below 20?., court may nevertheless make an order for costs. Kumley v. Irwin, lxxxvi. 312 ; 18 C. B. 312. Plaintiff not entitled where county court had jurisdiction over some of the items of a continuous bill. Bonsey v . Wordsworth, lxxxvi. 325 ; 18 C. B. 325. In registration cases on appeals from revising barrister, semble, that where de- cision is against franchise, court will exercise their discretion in regard to costs, but where against appellant, in favor of franchise, costs of course. Clark v. Bury St. Edmonds, lxxxvii. 23 ; 1 C. B. N. S. 23. 19 & 20 Vict. c. 108, s. 18, does not affect right to costs where the superior courts have concurrent jurisdiction. Waterlow v. Dobson, xcii. 585 ; 8 E. & B. 585. Plaintiff entitled to costs in a proceeding, under 18 & 19 Vict., c. 67, though within the jurisdiction of the city court and he recover less than 20?. Healey v. Johns, xcii. 946 ; 8 E. & B. 946. A rule for costs, under 15 & 16 Vict. c. 54, s. 4, after the lapse of a term from the refusal of a judge to certify that the case wherein plaintiff recovered 40s. was a proper one for the superior court, is an appeal, and therefore too late. Craske v. Smith, xciii. 446 ; 4 C. B. N. S. 446. A gaol in which plaintiff was confined when suit brought, is not the place where she *' dwells" within 9 & 10 Vict. c. 95, s. 128. Dunston v. Paterson, xciv. 267 ; 5 C. B. N. S. 267. Recovering only 5?. and the judge declining to certify, the plaintiff is not en- titled to costs on a demurrer or on issues of fact. Ibid. Court require a strong case before overruling a judge's discretion, under 15 & 16 Vict. c. 54, s. 4. Ibid. Where the plaintiff had a residence within and another beyond twenty miles from that of defendant, at the latter of which he was when cause of action arose and suit brought, there is concurrent jurisdiction. Butler v. Ablewhite, xcv. 740; 6 0. B. N S. 740. 13 & 14 Vict. c. 61, does not repeal 3 & 4 Vict. c. 24, and plaintiff recovering under 40s., not entitled to costs though he have a certificate, under sect. 12 of former act. Powle v. Gandy, xcvii. 556 ; 7 C, B. N. S. 556. In detinue for goods worth 130?., where plaintiff only recovers Is. damages because of their return after suit brought, he is entitled to costs. Leader v. Rhys, c. 369 ; 10 C. B. N. S 369. Certificate, under 23 & 24 Vict. c. 126, need not negative both wilfulness and malice. Saunders v. Kirwan, c. 514; 10 C. B. N. S. 514. Affidavit of defendant where verdict less than 50?., that he carried on business in London and plaintiffs in Southwark, within twenty miles of residence of de- fendant, and did not dwell more than twenty miles from defendant, is enough to require answer. Bailey v. Bryant, cii. 340; 1 E. & E. 340. Under 15 & 16 Vict. s. 118, there is not concurrent jurisdiction where plain- tiff has three residences, one of which is within twenty miles of defendant. _ Ibid. Upon a compulsory order of reference in the common form, the plaintiff re- COSTS, XXVIII.— XXXI. 149 covering less than 20Z., is not entitled to costs without an order. Robertson v. Sterne, cvi. 248 ; 13 C. B. N. S. 248. Fact of one item in tradesman's bill being separated by several years from others, does not prevent operation of 9 & 10 Vict. c. 95. Copeman v. Hart, cviii. 731 ; 14 C. B. N. S. 731. Where one of the plaintiffs lives more than twenty miles from defendant, jurisdiction is concurrent, though claim is under 20Z., and plaintiffs entitled to costs, under 15 & 16 Vict. c. 54, s. 4. Bennett v. Benham, cix. 616; 15 C. B. N. S. 616. On appeal all materials relevant, brought before judge at chambers, must be brought before court. Ibid. But materials which are irrelevant may be treated as not existing. Ibid. Where there are two separate causes of action and verdict is on one not in- volving title to land, for less than 51., there will be no costs. Blackmore v. Higgs, cix. 790 ; 15 0. B. N. S. 790. Where amount is reduced in superior court below 201. by set-off, plaintiff does not "recover" sufficient to entitle him to costs, within 13 & 14 Vict. c. 61, s. 11. Beard v. Perry, ex. 493 ; 2 B. & S. 493. Aliter, in like cases in the United States. Am. Ed. Note. Ibid. Where a defendant had two places of residence, one more than twenty miles from plaintiff's residence, he is liable to costs in suit in Common Pleas, under 15 & 16 Vict. c. 54, s. 4. Pigrim v. Knatchbull, cxiv. 798 ; 18 C. B. N. S. 798. Bringing an action under 18 & 19 Vict. c. 67, does not relieve plaintiff from the penalty of losing costs, when inferior court has jurisdiction. Harris v. Swin- burn, cxvii. 370 ; 5 B. & S. 370. 13 & 14 Vict. c. 61, applies to an arbitration, by the consent of parties, before trial, wherein costs were ordered to abide the event of the award. Cowell v. Amman Colliery Co., cxviii. 333 ; 6 B. & S. 333. XXIX. Summary proceedings. Where there are not sufficient grounds for striking attorney from the rolls, but grave suspicion, rule will be discharged without costs. In re Sparks, cxii. 727 ; 17 C. B. N. S. 727. XXX. Execution for. An execution for costs of suit against after-acquired property of bankrupt is valid when they were not provable at time of bankruptcy. Oxlade v. N. E. Railway Co., cix. 695; 15 C. B. N. S. 695. Such costs are not provable, unless there is a judgment at time of bankruptcy. Ibid. XXXI. Other matters. Costs under Bills of Exchange Act, 1855 (18 & 19 Vict. c. 67), Ixxxiv. 1 ; 17 C. B. 1. Where defendant took rule on plaintiff to show cause why proceedings should not be stayed, on payment of amount due, but did not pay money into court, plaintiff allowed subsequent costs. Hore v. Saxl, Ixxxiv. 599 ; 17 C. B. 599. Costs of witnesses belong to party succeeding in issue they were called to sup- port, though testimony have some bearing on other issues in which he lost. Jewell v. Parr, Ixxxiv. 636 ; 17 C. B. 636. Where excessive costs obtained through false statement made in attorney's office without his knowledge, he was compelled to refund and pay expenses of rule. Palmer v. Evans, lxxxvii. 151 ; 1 C. B. N. S. 151. Action will not lie here for costs, on an interlocutory proceeding in Irish court. Sheehy v. Life Assurance Co., lxxxix. 211 ; 2 C. B. N. S. 211 ; affirmed in Ex- chequer Chamber, xci. 597 ; 3 C. B. N. S. 597. General rule concerning taxing costs on judgment for default of appearance, xc. 536 ; 7 E. & B. 536. Advancing costs to an attorney, upon an understanding that in the event of his obtaining costs by decree they shall be returned, is a good consideration, and the right to recover passes to assignees in bankruptcy. Morgan v. Taylor, xciv. 653 ; 5 C. B. N. S. 653. 150 COSTS, XXXI. Where a defendant was discharged from a ca. sa. with costs, he bringing no action, these are interlocutory costs, within Reg. Gen. Hil. 16 Vict. s. 63. Mel- ville v. Leesom, xcvi. 324 ; E., B. & E. 324. Defendant may call upon plaintiff, who has obtained judgment in ejectment and executed a writ of possession, to deliver a bill of costs. Baker v. Saunders, xcvii. 858 ; 7 C. B. N. S. 858. Sect. 123 of the Common Law Procedure Act does not entitle plaintiff to obtain, on a ca. sa., the expenses of a previous unsuccessful fi. fa. Marquis of Salisbury v. Kay, xcviii. 93 ; 8 C. B. N. S. 93. Audita querela is an action in which costn may be incurred. Holmes v. Pem- berton, cii. 369 ; 1 E. & E. 369. Plaintiff having abandoned, before trial, an action for infringement of a patent, defendant is entitled to his costs for particulars of objection. Greaves v. E. C. Railway Co., cii. 961 ; 1 E. & E. 961. Aliter, as to costs of a special jury. Ibid. Plaintiff is entitled to costs, under Common Law Procedure Act, 25 & 26 Vict. c. 126, where certificate does not negative that no right was in issue, except to damages. Gooding v. Britnall, ciii. 148 ; 11 C. B. N. S. 148. Plaintiff is entitled to order for costs, under 19 & 20 Vict. c. 108, after judg- ment by default when he would have been entitled before the act after verdict. Baddeley v. Bernand, ciii. 420 ; 11 C. B. N. S. 420. The plaintiff cannot be deprived of costs, under 23 & 24 Vict. c. 126, s. 34, (Common Law Procedure Act), in an action of detinue. Danby v. Lamb, ciii. 422; 11 C. B.N. S. 422. The discretion of the court, under 15 & 16 Vict. c. 54, s. 4, in allowing or. denying costs, is to be exercised with reference to the propriety of bringing action in superior court when brought, and not with reference to complication introduced by special pleading. Howlett v. Tarte, ciii. 634 ; 11 C. B. N. S. 631. When a new trial is granted with an order that plaintiff's costs " abide Hie event of this cause," and the verdict is for defendant on the only count contested in the first trial, but for the plaintiff on a count on which the defendant had had a verdict on first trial without contest, the plaintiff loses the costs of the first trial. Dawson v. Harris, ciii. 801 j, 11 C. B. N. S. 801. Costs will not be given respondent on dismissing an appeal from justices when case is a fairly arguable one. Caswell v. Cook, civ. 241 ; 12 C. B. N. S. 241. The costs of copying into the plaintiff's brief, in an action against a railway company, the evidence taken at an inquest upon the bodies of others killed at the same time, should not be allowed. Lockstone v. Brighton Railway Co., civ. 243 ; 12 C. B. N. S. 243. Husband is liable to her solicitor for his wife's costs in a suit for divorce by her, on the ground of cruelty, though suit is not proceeded with. Rice v. Shep- herd, civ. 332 ; 12 C. B. N. S. 332. When railway company has acted in such way as to make it necessary for any person to apply to court for relief, under 17 & 18 Vict. c. 31, costs will be given against the company. In re Baxendale. civ. 758 ; 12 C. B. N. S. 758. The question of costs is for the court and not for the jury. Poole v. Whitcomb, civ. 770; V2 C.B.N. S. 770. Where in an action of contract one of two defendants was struck off the record, and a verdict given against the other, the former was allowed one-half the gen- eral costs of the two defendants. Redway v. Webber, cvi. 254; 13 C. B. N S. 254. Costs allowed to claimant, under Lands Clauses Act, unless notice of time and place of trial given him, even if amount recovered is less than that tendered. Metropolis Railway Co. v. Turnham, cviii. 212 ; 14 C. B. N. S. 212. Sheriff not entitled to costs under fi. fa. for preparing goods for sale, when no- tified before of act of bankruptcy. Searle v. Blaise, cviii. 856 ; 14 C. B. N. S. 856. Costs incurred by master of vessel, in uselessly contesting suit of the consign- ees for damages, not allowed in an action against bailee, through whose default the goods were lost when stored with him. Ronneberg v. Falkland Islands Co., cxii. 1 ; 17 C. B. N. S. 1. No costs allowed to defendant when there has been another substituted for him, under suspicion of collusion. Podmore v. Schmidt, cxii. 725 ; 17 0. B. N. S. 725. COSTS, XXXI. COURTS, I. 151 Under 19 & 20 Vict. c. 121, sa. 2, 19, one not owner at time of order to remove nuisance not liable to an action for costs and expenses of abatement. Blything Union v. Warton, cxiii. 357 ; 3 B. & S. 357. Discretion of court as to costs in action on judgment for less than 20Z. will be guided by provisions of 7 & 8 Vict. c. 96, though they are not binding. Dickin- son v. Angell, cxiii. 840 ; 3 B. & S. 840. Common Pleas have nothing to do with costs in a proceeding before magistrate, under 25 & 26 Vict. c. 102, s. 98, and 18 & 19 Vict. c. 120. Board of Works v. Cox, cxv. 445 ; 19 C. B. N. S. 445. Where award does not exceed offer, under Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, s. 68, there are no costs. Re Hayward, cxvi. 787 ; 4 B. & S. 787. COURTS. I. General matters relating to. IV. County Courts. II. Jurisdiction. V. Quarter Sessions. HI. Judgment of foreign Court. VI. Courts martial. I. General matters relating to. Rule of Queen's Bench quashing writ of error ought not to be entered on record in the Exchequer Chamber. Alleyne v. The Queen, Ixxxv. 399 ; 5 E. & B. 399. ' Writ of error having been quashed by court of competent jurisdiction, Ex- chequer Chamber struck judgment from the record. Ibid. Decision of courts of bankruptcy as to whether estate will produce 150Z. con- cludes Common Bench. Pennell v. Butler, lxxxvi. 209 ; 18 C. B. 209. Attorney stricken from roll of Queen's Bench was stricken from roll of Common Pleas on mere production of the rule. In re John Collins, lxxxvi. 272 : 18 C. B. 272. Will take judicial notice that the colony of Victoria is not in England. Cooke v. Wilson, Ixxxvii. 153 ; 1 C. B. N. S. 153. Will take judicial notice that Hatton Garden is in Middlesex, there being a public act in which it is so described. Regina v. Holborn Union, lxxxviii. 715 ; 6 E. & B. 715. At post terminal sittings no original motion can be entertained. Tabor v. Edwards, xci. 64 ; 3 0. B. N. S. 64. Order for costs on an appeal against a rate, though taxed by the recorder, made by the sessions over whom the deputy recorder presided, who resided in a parish which contributed to the fund, is void because of his interest. Regina v. Recorder of Cambridge, xcii. 637 ; 8 E. & B. 637. Where parol evidence of a lost written instrument has been given, its con- struction is for the court. Berwick v. Horsfall, xciii. 450 ; 4 C. B. N. S. 450. Order under 1 & 2 Vict. c. 110, s. 14, confirmed, on the ground that otherwise there would be no appeal. Nicholls v. Rosewarne, xcv. 480 ; 6 C. B. N. S. 480. A writ of error and a certiorari, upon a conviction of a criminal offence by a colonial court, were refused, there being no fiat from the attorney-general. Ex parte Lees, xcvi. 828 ; E., B. & E. 82S. A court of assize is a superior court, and the judge may commit for contempt without being subject to review, and without the cause being set forth in the warrant. Ex parte Fernandez, c. 3 ; 10 C. B. N. S. 3. A party acting on an order of court accepts the whole order. Hayward v. Duff, civ. 364 ; 12 C. B. N. S. 364. Court has power to change venue in an information in nature of quo warranto. Clark v. The Queen, cvii. 147 ; 3 E. & E. 147. Party attending at Insolvent Debtors' Court, privileged from arrest on ca. sa. eundo, morando et redeundo. Chauvin v. Alexander, ex. 47 ; 2 B. & S. 47. It seems that an opinion of a court from which there is no appeal is not bind- ing on a co-ordinate court, as a judgment would be. Sunderland v. Sunderland Union, cxiv. 531 j 18 C. B. N. S. 531. 152 COURTS, L, II. Semble, that if one party has acted oppressively, by the retention of all the counsel, the court will interfere. Curtis v. Lewis, cxvii. 568 ; 5 B. & S. 568. II. Jurisdiction. Court of their own motion amended a plea so as to make the issue that which was tried before the jury. Parsons v. Alexander, Ixxxv. 263 ; 5 E. & B. 263. Will remove coroner's inquisition and indictment for murder from county, if it appear that fair trial cannot be had. Regina v. Palmer, lxxxv. 1024 ; 5 E. & B. 1024. Where county court has jurisdiction over some of the items of a continuous bill there is no concurrent jurisdiction in superior court, under 9 & 10 Vict. c. 95, s. 128. Bonsey v. Wordsworth, lxxxvi. 325 ; 18 C. B. 325. Common Pleas may issue attachment for contempt on rule, upon an issue directed by Court of Chancery. Swinfen v. Swinfen, lxxxvi. 485 ; 18 C. B. 485. Vide lxxxvii. 364 ; 1 C. B. N. S. 364. Court of error may amend the record. Walker v. Bartlctt, lxxxvi. 845 ; 18 C. B. 845. Duties of the commissioner of the Insolvent Debtor's Court are judicial as well as ministerial. Regina v. Law, xc. 366 ; 7 E. & B. 366. On a conviction for obstructing highway, confirmed by sessions, subject to a case brought by certiorari before Exchequer Chamber, the court took notice of nothing outside of the case. Kegina v. Thomas, xc. 399 ; 7 E. &B. 399. Rule on magistrate to hear and adjudicate refused where he had decided that a certain street was not a "new street," under 18 & 19 Vict. c. 120, and that therefore he had no jurisdiction. Regina v. Dayman, xc. 672 ; 7 E. & B. 672. Dismissal by magistrate of a complaint, under 18 & 19 Vict. c. 108, s. 11, on t)ie ground that all the owners were not included, is not an exercise of jurisdic- tion. Regina v. Brown, xc. 757 ; 7 E. & B. 757. The recorder having stated a case by consent on an appeal from a conviction, under 5 & 6 Wm. 4, c. 76, s. 90, the court decided the question, though certiorari taken away by the statute. Regina v. Dickenson, xc. 831 ; 7 E. & B. 831. An order at Nisi Prius, to which one not in the cause became a party, may be made an order of court as to him. Williams v. Lewis, xc. 929 ; 7 E. & B. 929. There may be an appeal to the House of Lords, where the Court of Exche- quer Chamber is equally divided upon an appeal from the Common Pleas. Hickman v. Cox, xoi. 523 : 3 C. B. N. S. 523. Under 10 & 11 Vict. c. 102, s. 10, the court for the relief of insolvent debtors may make an order of reference to a county judge, where the proceedings origi- nated in a creditor's petition for a vesting order. Regina v. Dowling, xcii. 605; 8 E. . Botterill, cxiii. 787 ; 3 B. & S. 787. It need not be shown that any particular land was entered upon. Ibid. A person remaining in a carriage and receiving a hare shot by a companion on adjacent ground is an aider and abetter, within 11 & 12 Vict. c. 43, s. 5. Stacey v. Whitehurst, cxiv. 344 ;. 18 0. B. N. S. 344. Semble, that he would have been liable as a joint trespasser, under 1 & 2 Wm. 4, c. 32, s. 30. If game be seen upon the person an actual search is not necessary, under 25 & 26 Vict. c. 114, s. 2. Hall v. Knox, cxvi. 515 ; 4 B. & S. 515. IX. Misdemeanor. In a case of misdemeanor, an improper discharge of the jury, after trial com- menced, is not a legal bar to another trial. Regina v. Charlesworth, ci. 460 ; 1 B. &S. 460. Where a man has been in gaol, under conviction for a misdemeanor, during a part of the six months, he has not resided for that time in a borough sufficiently to entitle him to be placed on the list of voters, under 2 Wm. 4, c. 45, s. 27. Powell u. Guest, cxiv. 72 ; 18 0. B. N. S. 72. It seems, that the rule would be different, if he could purge himself of the offence by the payment of a fine. Ibid. X. Nuisance. On an indictment for nuisance, evidence of an anterior conviction, under 16 & 17 Vict. c. 128, s. 1, for an offence committed in the course of the same trade, is not admissible. Regina v. Fairie, xcii. 486 ; 8 E. & B. 486. Semble, that if the conviction had been on an indictment in precisely the same terms, it would not be admissible. Ibid. An order, under 18 & 19 Viet. c. 121, to abate and discontinue a nuisance, and to do such work and acts as are necessary, is not subject to appeal. Ex parte Mayor of Liverpool, xcii. 537 ; 8 E. & B. 537. The owner of a market, penning sheep with hurdles on a pavement, where their droppings cause a nuisance, is bound to remove it, under 18 & 19 Vict. c. 12K Draper v. Sperring, e. 113 ; 10 C. B. N. S. 113. The justices cannot determine a complaint, under 18 & 19 Vict. c. 121, unless both the cause and effect of the nuisance be within the area of their jurisdic- tion. Regina v. Cotton, cii. 203 ; 1 E. & E. 203. It is an indictable nuisance to obstruct the footway with earth and bricks, in order to lay down pipes for connecting gas mains with private houses, without the authority of parliament. Regina v. Longton Gas Co., cv. 651 ; 2 E. & E. 651. 168 CRIMINAL LAW, X.— XV. (a), (&). Persons laying down a tramway, found by jury a nuisance, as obstructing highway, are liable criminally. Regina v. Train, ex. C40 ; 2 B. & S. 640. Warrant to levy penalty, under 18 & 19 Vict. c. 121, s. 20, for disobeying order to abate nuisance, cannot be issued without previous summons. Regina v. Jenkins, cxiii. 116 ; 3 B. & S. 116. Where statutory powers, when conferred, may be exercised without causing a nuisance, but because of changed conditions, it afterwards becomes impossible, the persons exercising them may be indicted. Regina v. Bradford Nav. Co., exviii. 631 ; 6 B. & g. 631. XI. Perjury. An affidavit to a petition under the Insolvent Debtors' Act need not expressly allege that the defendant had resided for six months within the district of the county court. Walker v. The Queen, xcii. 439 ; 8 E. & B. 439. And an indictment for perjury, founded upon such an affidavit, sufficiently shows the jurisdiction of the court. Ibid. To constitute perjury in a cause the proceeding must not be coram nonjudice. Regina v. Pearce, cxiii. 531 ; 3 B. & S. 531. In a proceeding under 15 & 16 Vict. c. 72, where judge inserted husband's name without power to do so, it was not perjury for defendant to swear falsely. Ibid. It seems, that false swearing, under Naval Discipline Act, 1861, 24 & 25 Vict. c. 115, s. 57, before court martial, is perjury. Regina v. Heane, cxvi. 947 ; 4 B. & S. 947. But, quaere, whether under 22 & 23 Vict. c. 17, s. 1, an indictment for such offence is proper. Ibid. After plea to indictment, a motion to quash will be entertained if there be a want of jurisdiction made apparent. Ibid. XII. Piracy.- Piracy, under 6 & 7 Vict. c. 76, giving effect to the extradition treaty of Au- gust 9 th 1842 with the United States, is confined to piracy within the peculiar jurisdiction of the United States. la re Tivnan, cxvh. 645; 5 B. & S. 645. XIII. Restitution. A judge has no power to order the disposal of goods in the possession of a felon not belonging to the prosecutor. Regina v. Corporation of London, xcvi. 509 ; E., B. & E. 509. XIV. Threats. Threats against workman under 6 Geo. 4, c. 129, s. 3. O'Neill v. Longman, cxvi. 376 ; 4 B. & S. 376. Need not be threats of personal violence. Ibid. Threats against employer under 6 Geo. 4, c. 129, s. 3. O'Neill v. Kruger, cxvi. 389; 4 B. & S. 389. XV. Proceedings generally. (a) Commitment by magistrate. Commitment under Vagrant Act, 5 Geo. 4, c. 83, stating that A., a reputed thief, frequenting the public streets, was found in Railway Place with intent to commit felony, held sufficient. Ex parte Thomas Cross, lxxxvii. 573 ; 1 C. B. N. S. 573. (6) Criminal information. An information by clerk of paving commissioners is well laid, where the pen- alty goes to commissioners, though it does not purport to be by their authority, provided it is laid under the statute giving to them the penalty. Cole"«. Coulton, cv. 695; 2E. & E. 695. Abandonment of information for rescue does not prevent proceeding on infor- mation for assault. Galliard t>. Laxton, ex. 363 ; 2 B. & S. 363. CRIMINAL LAW, XV. (c).— XVI. 169 (c) Bail. Putting an additional defendant in an indictment for conspiracy does not vary or discharge the recognisance. Knowlden v. The Queen, cxvii. 532 ; 5 B. & K. 532. Nor do respiting it and postponing the trial. Ibid. (d) Indictment. Under Vexatious Indictment Act, 22 & 23 Vict. c. 17, discretion of judge to ■consent to prosecution will not be interfered with. Regina v. Bray, cxiii. 255 ; 3 B. & S. 255. It is not necessary, under 22 & 23 Vict. c. 17, s. 1, that an indictment should aver that the conditions therein imposed have been performed. Knowlden v. The Queen, cxvii. 532 ; 5 B. & S. 532. (e) Pleading to indictment. A certificate of justices, under 9 Geo. 4, c. 31, s. 27, is a bar to all further proceedings or charges arising out of the same matter. Regina v. Elrington, ci. 688 ; 1 B. & S. 688. (f) Certiorari. Discretion of a judge exercised in permitting one of three defendants to remove indictment by certiorari is not reviewable. Kegina v. Wilks, Ixxxv. 690 ; 5 E. & B. 690. It is a reasonable condition, on granting certiorari to one of two indicted for conspiracy, that he should enter into recognisance for costs, if either convicted. Regina v. Jewell, xc. 140 ; 7 E. & B. 140. Indictment against corporation may be removed by certiorari to Queen's Bench, by prosecutor, without his recognisance, under 16 & 17 Vict. c. 30. Re- gina v. Mayor of Manchester, xc. 453 ; 7 E. & B. 453. On certiorari bringing before Exchequer Chamber a conviction for obstructing highway conformed by sessions, subject to a case, the court considered nothing outside of the case. Regina v. Thomas, xc. 399 ; 7 E. & B. 399. Lies to bring up an order of the Quarter Sessions void, because some of the justices were interested for the purpose of quashing it. Ex parte Hopkins, xcii. 1094; 5E. &B. 1094. Court refused a writ of error and a certiorari upon a conviction of a criminal offence by a colonial court, there being no fiat from the attorney-general. Ex parte Lees, xcvi. 828 ; E., B. & E. 828. A certiorari will issue on a conviction, under 24 & 25 Vict. c. 109, s. 20, although an appeal is pending. Regina v. Allan, cxvi. 915 ; 4 B. & S. 915. Where the papers are left, in the absence of the judge, with his clerk, at chambers, and notice given of an intention to apply for a certiorari before six months have expired, it is good, under 13 Geo. 2, c. i8, s. 5. Ibid. A recognisance of prosecutor on a certiorari to remove an indictment, condi- tioned to do as the court shall direct, does not authorize costs after removal, un- der 16 & 17 Vict. c. 30, s. 5, to the defendant on his acquittal. Regina v. East Stoke, cxviii. 536 ; 6 B. & S. 536. (g) Other matters. Court will remove coroner's inquisition and indictment for murder from county, if it appear that fair trial cannot be had. Regina v. Palmer, lxxxv. 1024 ; 5 E. & B. 1024. Court refused, in granting rule to. try in central criminal court, to impose terms on prosecutor to furnish defendant with evidence obtained since taking depositions. Ibid. It is no ground of error that the verdict was only as to one of two counts in an indictment. Latham v. The Queen, cxvii. 635 ; 5 B. & S. 635. XVI. Trial and its incidents. On an indictment for nuisance, evidence of an anterior conviction, under 16 & 17 Vict. c. 128, s. 1, for an offence committed in the course of the same trade, is not admissible. Regina v. Fairie, xcii. 486 ; 8 E. & B. 486. 170 CRIMINAL LAW, XVI.— XVIII. Semble, that if the conviction had been on an indictment in precisely the same terms, it would not be admissible. Ibid. Proof that goods were in a box given to a carrier, and were abstracted before delivery, is no evidence of felony by his servants. Metcalfe v. Railway Co., xciii. 307 ; 4 C. B. N. S. 307. The rule that the evidence of an accomplice must be corroborated is one of practice, not of law, and is within discretion of the judge. Regina v. Boyes, ci. 311 ; 1 B. & S. 311. Living in a state of concubinage is not evidence of bad character. Leader v. Yell, cxi. 584 ; 16 C. B. N. S. 584. In any felony the judge has a discretion to discharge the jury, upon failure to agree after sufficient deliberation, and such discharge is no bar to a second trial. Winsor v. The Queen, cxviii. 143 ; 6 B. & S. 143. This discretion is not reviewable in error. Ibid. Quaere, Whether refreshments may be furnished a jury after retiring. Ibid. Qucere, whether verdict may be rendered on Sunday. Ibid. Dubitatur, as to the practice of carting a jury until they agree. Ibid. XVII. Practice. Juror may be ordered to " stand by,'' on application of counsel for prosecu- tion, until panel gone through, without assigning any cause. Mansell v. The Queen, xcii. 54 ; 8 B. & B. 54. The panel is not gone through, for this purpose, until exhausted. Ibid. One who has entered the jury box without challenge may, before being sworn, be ordered to stand by. Ibid. Jurors need not be called in their order on the panel, if convenience demands otherwise. Ibid. The attorney-general may enter a nolle prosequi on an indictment without notice to the prosecutor. Regina v. Allen, ci. 850 ; 1 B. & S. 850. A defendant cannot be summoned under one act and convicted under another. Martin v. Pridgeon, cii. 778 ; 1 E. & E. 778. A question not raised before the justices cannot be considered on appeal from conviction. Purkis v. Huxtable, cii. 780; 1 E. & E. 780. A new trial will not be granted because verdict is against the evidence on an indictment for obstructing a highway, after a verdict of not guilty, though the judge is dissatisfied. Regina v. Johnson, cv. 613 ; 2 E. & E. 613. In order to issue a warrant, under 5 . Dawson, xci. 106 ; 3 C.B. N. S. 106. Damages, under 9 & 10 Vict. c. 93, may be given for the reasonable expecta- tion of pecuniary advantage from the life of the deceased. Dalton v. S. E. Rail- way Co., xciii. 296 ; 4 C. B. N. S. 296. DAMAGES, II. (6), (c), (d), (e), (/). 175 But not for funeral or mourning expenses. Ibid. Broker, who defended an action for unliquidated damages upon a contract which, his principal refused to carry out, may recover from the principal the damages and the costs of defending the suit. Broom v. Hall, xcvii. 503 : 7 C. B. N. S. 503. In a suit for falsely representing that the agent of A. had made a certain false statement, costs in a suit brought against A. for the false statement and lost are too remote. Richardson v. Dunn, xcviii. 655 ; 8 C. B. N. S. 655. Court will not disturb a verdict for heavy damages for injuries to person, on the ground that the plaintiff, contrary to medical advice engaged in business and aggravated his ailments. Saunders v. L. & N. W. Railway Co., xcviii. 887 ; 8 C. B. N. S. 887. One, who bona fide, but without authority, makes a parol lease for seven years, is not liable to the lessee for costs of an unsuccessful defence in ejectment, though he advised it. Pow v. DaviB, ci. 220 ; 1 B. & S. 220. Rule as to measure of damages in United States in case of death of individual, or injury by reason of negligence. Am. Ed. note to Pym v. G. N. Railway Co., ex. 769 ; 2 B. & S. 769. Measure of against a carrier for not delivering goods at the place of destina- tion, where there is no market, is the cost of the goods, transportation and a rea- sonable importer's profit. O'Hanlan v. G. W. Railway Co., cxviii. 484 ; 6 B. & S. 484. (c) Covenant. Covenant in a mortgage deed by defendant to keep up and pay premiums on a policy of life insurance, with a proviso in case of neglect that plaintiff might pay them and charge the amounts against the hereditaments, but the deed con- tained no covenant to repay these sums ; held, that after payment by him, plain- tiff was only entitled to nominal damages for the breach. Brown v. Price, xciii. 598 ; 4 C. B. N. S. 598. On covenant to repair, lessee liable to full damages, though there is parol agreement with another party by which premises are to be pulled down. Raw- lings v. Morgan, cxiv. 776 ; 18 C. B. N. S. 776. Damages for loss of bargain in covenant for quiet enjoyment, on failure of title of lessor. Lock v. Furze, cxv. 96 ; 19 C. B. N. S. 96. In policy of insurance against loss by fire, damages caused by explosion of powder magazine a mile off, cannot be recovered. Everett v. London Assurance, cxv. 126 ; 19 C. B. N. S. 126. Measure of damages, where a policy of life insurance assigned as security by defendant to plaintiff, became void by defendant's breach of condition, is the present value of the policy. Hawkins v. Coulthurst, cxvii. 343 ; 5 B. & S. 343. (d) False imprisonment. Loss of an engagement as journeyman, through false imprisonment, too remote a damage. Hoey v. Felton, ciii. 142 ; 11 C. B. 'N. S. 142. (e) Slander. 750Z. for slandering a clergyman, not excessive. Highmore v. Earl of Har- rington, xci. 142; 3 C. B. N. S. 142. In an action for calling plaintiff's wife a bawd and her house a bawdy house, it is unnecessary to prove special damage. Huckle ». Reynolds, xcvii. 114 ; 7 C. B. N. S. 114. Where there is evidence that plaintiff lost a place worth 50/. per annum, with her board, damages not excessive. Jackson v. Hopperton, cxi. 829 ; 16 C. B. N. S. 829. Special damage by reason of false and malicious disparagement of plaintiff's goods. Young v. Macrae, cxiii. 264 ; 3 B. & S. 264. Loss of membership in a society of Calvinistic Methodists not special damage. Roberts v. Roberts, cxvii. 384 ; 5 B. & S. 384. (/) Trespass. Measure of damages in trespass ab initio for distress. Attack v. Bramwell, cxiii. 520: 3 B. & S. 520. 176 DAMAGES, II. (g), III. (g) Trover. For a policy of life insurance is the amount obtained upon the policy. Watson v. McLean, xcvi. 75 ; E., B. & E. 75. The measure of damages in trover, by the possessor of goods, tigainst a mere wrongdoer, is the full value of the goods, though they have been purchased to be paid for in instalments and have not been entirely paid for, and there is a right of re-entry in the event of non-payment of any instalment. Turner v. Ilardcastle, ciii. 683; 11 C. B. N. S. 683. Measure of damages in case of unlawful conversion by pledgee. Johnson v. Stear, cix. 330; 15 C. B. N. S. 330. What facts can be given in mitigation and what not. Edmondson v. Nuttall, cxii. 280 ; 17 C. B. N. S. 280. Prima facie measure of damages is value of thing taken. Ibid. Measure of damages of cargo, which should have been retained upon request of unpaid vendor. Talk v. Fletcher, cxiv. 403 ; 18 C. B. N. S. 403. III. Other matters relating to. Given by jury for non-completion of ship, for difference between what she pro- bably would have earned, had she been ready at time agreed upon when freights were high, and what she did earn when delivered, not ground for new trial. Fletcher v. Tayleur, Ixxxiv. 21 ; 17 C. B. 21. Qucere, should the measure of damage in such a case be the average profit earned by the use of such a chattel. Ibid. Where vendor, without fault, is unable to make good title, he is not liable in damages beyond expenses. Pounsett v. Fuller, Ixxxiv. 660; 17 C. B. 660. Nor for expenses of futile attempts to substitute new contract incurred after failure of old. Ibid. Special damages held recoverable for detention of vessel, which facts showed became property of plaintiff as it was being built. Wood v. Bell, lxxxv. 772 ; 5 E. & B. 772. Landlord can recover from tenant, holding over after notice, damages and costs incurred in a suit, by one to whom he had agreed to let the premises. " Bramley v. Chesterton, lxxxix. 592 ; 2 C. B. N. S. 592. Liability to loss is the measure of damages for breach of warranty. Randall v. Raper, xcvi. 84; E., B. & E. 84. Measure on a breach of warranty where the goods have been sold by the warrantee, is the difference between the contract price and the actual value. Dingle v. Hare, xcvii. 145 : 7 C. B. N. S. 145. Exemplary damages for wrongful obstruction by a railway company of plain- tiff's siding, for purpose of breaking up his business, and accompanied with abusive words. Bell v. Midland Railway Co., c. 287 ; 10 0. B. N. S. 287. Vendor of ^oods to be delivered, accepting a bill in payment, may withhold delivery if vendee become insolvent and the bill be dishonored. Griffiths v. Perry, cii. 680 ; 1 E. & E. 680. And though vendor before dishonor has committed a breach of contract and his delivery order been endorsed over, only nominal damages are recoverable. Ibid. Where jury have assessed the damages solely to give the plaintiff costs, a new trial will be ordered. Poole v. Whitcomb, civ. 770 ; 12 C. B. N. S. 770. Under Canal Act, providing that finding of jury as to land damages, " shall be final and conclusive," the verdict is only binding as to the amount. Barber v. Nottingham Canal Co., cix. 726 ; 15 C. B. N. S. 726. The question as to whether there is damage within the act is not settled. Ibid. Costs of quashing order for sale under which seizure was made, are no part of damages in action for seizure begun after period of limitation. Pease v. Chaytor, cxiii. 620 ; 3 B. & S. 620. Damages for injuries inflicted upon the horse of plaintiff by the mare of de- fendant, which through his neglect to repair fences strayed into plaintiff's field, are not too remote, though no evidence that she was vicious. Lee v. Riley, cxiv. 722 ; 18 C. B. N. S. 722. Measure of damages in collision of vessels in court of admiralty. Heard v. Holman, cxv. 1 ; 19 C. B. N. S. 1 (Note of editor). DAMAGES, III. DEBTOR AND CREDITOR, I. 177 Under 8 & 9 Vict. c. 93, damages for the loss of the reasonable probability of pecuniary benefit from continuance of the life of deceased may be obtained. Pym ». G. N. Railway Co., cxvi. 396 ; 4 B. & S. 396. The case of debt on a judgment is 'within sect. 27 of 15 & 16 Vict. c. 70. Hodsoll v. Baxter, xcvi. 884; E., B. & E. 884. Lies by the assignee of a lessee who demised for a longer time than his term,, reserving a rent. Williams v. Hayward, cii. 1040 ; 1 E. & E. 1040. DEBTOR AND CREDITOR. I. General matters relating to. III. When conveyance or assignment II. Composition deeds. by debtor bad. IV. Payment. I. General matters. Where debtor gave agent of creditor, bona fide, in settlement of claim a check drawn by agent several days before, which had not been presented, it is not pay- ment. Underwood v. Nicholls, lxxxiv. 239 ; 17 C. B. 239. Assignment for the benefit of creditors is not revocable before the trust is created, if assignee a creditor. Siggers.u. Evans, lxxxv. 367 ; 5 E. & B. 367. Where creditor had accepted drafts in composition of claim and in the deed covenanted not to sue unless drafts dishonored and to grant release on their pay- ment, held that on non-payment he had sufficient petitioning creditor's debt within bankrupt act. Leake v. Young, lxxxv. 955 ; 5 E. & B. 955. Judgment creditor who has issued execution against a joint stock company is entitled as of right to execution against a shareholder. Morisse v. Royal British Bank, lxxxvii. 67 ; 1 C. B. N. S. 67. Semble, that payment to administrator of creditor discharges debt, though will in existence. Prosser v. Wagner, lxxxvii. 289 ; 1 C. B. N. S. 289. Bona fide payment by debtor to feme covert executrix, at her request before probate, without knowledge of non-assent of husband, good against co-executor. Pemberton v. Chapman, xc. 210 ; 7 E. & B. 210. Afiirmed in Ex. Ch. xcvi. 1056 ; E., B. & E. 1056._ A petition of debtor, under 7 & 8 Vict. c. 70, naming the debt among others and proposing, for the future payment or compromise of such debts, to assign his estate, is not sufficient to take claim out of Statute of Limitations. Everett v. Robinson, cii. 16 ; 1 E. & E. 16. Property in halves of bank notes, sent with intention of both parties that second halves are to follow, remains in sender. Smith v. Mundy, cvii. 22 : 3 E. & E. 22. In such case there is no payment till second halves are sent. Ibid. Discharge of debtor by Insolvent Court in one of the colonies for debt con- tracted and payable there, is a discharge in England. Gardiner v. Houghton, ex. 743 ; 2 B. & S. 743. Discharge of principal, under 1 & 2 Vict. c. 110, s. 75, does not apply to surety, obliged to pay debt after discharge. Litten v. Dalton, cxii. 178 ; 17 C, B. N. S. 178. An execution is good, under 12 & 13 Vict. c. 106, s. 133, where the levy has been made, but there is an act of bankruptcy before the sale. Edwards i*. Scars- brook, cxiii. 280 ; 3 B. & S. 280. , Right of creditor to sue surety on administration bond, under 20 & 21 Vict. c. 77. Sandrey v. Michell, cxiii. 405 ; 3 B. & S. 405. Not sufficient to bring suit within reasonable time after decedent's death ; it must be brought within six years from time right of action accrued. Penny v. Brice, cxiv. 393 ; 18 C. B. N. S. 393. Garnishees in foreign attachment cannot defend as to money paid, where de- fendant was dead at inception of proceedings. Matthey v. Wiseman, cxiv. 657 ; 18 C. B. N. S. 657. Vol. III.— 12 DEBTOK AND CREDITOR, L, II. When bonds issued by the directors of a railway company are ultra vires and void. Chambers v. M. & M. Railway Co. cxvii. 5s8 ; 5 B. & S. 588. II. Composition deeds. Certificate, under sect. 221 of 12 & 13 Vict. c. 106, is a discharge, though a * creditor refuses the composition. Tindall v. Ilibberd, Ixxxix. 199 ; 2 C. B. N. S. 199. A deed of arrangement, under sect. 224 of 12 & 13 Vict. c. 10G, executed by six-sevenths in number and value of the creditors, containing a covenant by each creditor party to or bound by the deed not to sue, and a clause that if any cred- itor, by whom or on whose behalf the deed should have been actually executed, should break the covenant, defendant should be discharged from his claim, does not apply, as to the latter clause, to plaintiff who did not execute it. Legg v. Cheesebrough, xciv. 741 ; 5 C. B. N. S. 741. A composition deed, under sect. 224 of 12 & 13 Vict. c. 106, which makes an action by a creditor, whether he has signed it or not, a forfeiture of the debt, but which permits an action by leave of the inspectors, is invalid. Gardner v. Chap- man) xcviii. 317 ; 8 C. B. N. S. 317. Under 12 & 13 Vict. c. 106, a deed is void which is made with joint creditors only, and distributes among them the separate and joint assets. Leonard v. ,Sheard, cii. 667 ; 1 B. & E. 667. A deed excluding from its benefits all creditors not executing within a certain time, is not within 24 & 25 Vict. c. 134, s. 192. Berridge v. Abbott, cvi. 507 ; 13 C. B. N. S. 507. Composition deed containing, inter alia, covenant making each creditor liable for acts of the rest, and costs, &c, unreasonable and void, under 24 & 25 Vict. c. 134, s. 192. Inglebach v. Nichols, cviii. 85 ; 14 C. B. N. S. 85. Composition deed, excluding all creditors who do not execute within given time, void, under 24 & 25 Vict. c. 134, s. 192. Copeman v. Hart, cviii. 91 ; 14 C. B. N. S. 91. Composition deed, excluding expressly or impliedly such creditors as do not execute it, void, under 24 & 25 Vict. c. 134, s. 192. Ilderton v. Castrique, cviii. 99; 14 C. B. N. S. 99. Deed not void, under 12 & 13 Vict. c. 106, which reserves necessary wearing apparel. Spitzer v. Chaffen, cviii. 686 ; 14 C, B. N. S. 686. Nor for necessary costs reserved. Ibid. Nor for lease at rack-rent of no value, when there is a provision that it will be conveyed, on demand, to trustees. Ibid. Secured as'well as unsecured creditors to be counted in composition, under Bankruptcy Act 1861, s. 192. King v. Randall, cviii. 721 ; 14 C. B. N. S. 721. Deed of arrangement, under 24 & 25 Vict. c. 134, s. 192, containing unreason- able provisions, not binding on non-executing creditor. Leigh v. Pendlebury, eix. 815; 15 C. B. N. S. 815. Certain provisions held unreasonable. Ibid. A deed, under 24 & 25 Vict. c. 134, s. 192, not on its face for the benefit of all the creditors, is void. Ilderton v. Jewell, cxi. 142 ; 16 C. B. N. S. 142. Deed of arrangement, under Bankruptcy Act 1861, ». 197, executed after com- mencement of bankruptcy proceedings, relates back to act of bankruptcy. Top- ping v. Keysell, cxi. 258 ; 16 C. B. N. S. 258. A deed, under 24 & 25 Vict. c. 134, s. 200, and schedule D., not pleadable in bar to an action by a creditor signing it. Eyre v. Archer, cxi. 638 ; 16 C. B. N. S. 638. In composition deed, under 24 & 25 Vict. c. 134, s. 192, schedule, under gen- eral order of May 12th 1862, names of all creditors and amount of debts, secured and unsecured, must appear. Turquand v. Moss, cxii. 15 ; 17 C. B. N. S. 15. When creditor is induced, by giving of notes, to sign composition deed, conside- ration is illegal. Clay v. Ray, cxii. 188 ; 17 C. B. N. S. 188. Deviation from composition deed cannot be taken advantage of by other creditor properly satisfied. Baylor v. Mortimore, cxii. 207 ; 17 C.B. N. S. 207. Under 24 & 25 Vict. c. 134, s. 192, a deed excluding non-assenting creditors from all benefits under it, is void. Killby v. Wright, cxiv. 272 ; 18 0. B. N. S. A plea setting forth deed of composition with person living abroad, under 24 DEBTOR AND CEEDITOE, II. 179 & 25 \ T ict. c. 134, s. 192, and not alleging payment or tender of the composition is bad. Fessard v. Mugnier, cxiv. 286 ; IS C. B. N. S. 286. It seems, where the party lives in England and goes abroad after the execution of the deed such tender and payment are not necessary. Ibid. Clause in composition deed, under 24 & 25 Vict. c. 134, §. 192, declaring debt forfeited if debtor is sued, is void as to non-assenting creditors. Lyne v. Wyatt, cxiv. 593 ; 18 C. B. N. S. 593. > Such covenant, it seems, is binding on creditors executing the deed. Ibid. A provision in a trust deed, under 24 & 25 Vict. c. 134, s. 192, permitting trustee to prescribe manner of proving debt, is unreasonable and void as against non-assenting creditor. Coles v. Turner, cxiv. 736; 18 C. B. N. S. 736. Composition deed, under 24 & 25 Vict. c. 134, s. 192, containing unreasonable stipulation, is void as to non-assenting creditor. Brompton Waterworks v. Jennings, cxv. 149 ; 19 C. B. N. S. 149. A composition deed, under 24 &25 Vict. c. 134, s. 192, void on debtor becoming bankrupt, is voidable only at the election of the creditors, and can be enforced by them against the sureties in the deed, after bankruptcy of debtor. Hughes v. Palmer, cxv. 393 ; 19 C. B. N. S. 393. Deed of arrangement, under 24 & 25 Vict. c. 106, s. 192, containing an agree- ment not to sue within a limited time, will not operate as a release. Kay v. Jones, cxv. 416 ; 19 C. B. N. S. 416. A composition deed, good in other respects, under 24 & 25 Vict. c. 134, s. 192, containing a recital amounting to a covenant to pay composition, is binding on the creditors. Lay v. Mottram, cxv. 479 ; 19 C. B. N. S. 479. Under 24 & 25 Vict. c. 134, s. 192, where a majority in number representing three-fourths in value of the creditors, assent to a deed of composition, it is bind- ing on all. Clapham v. Atkinson, cxvi. 722 ; 4 B. & S. 722. And that the deed allowed debtor the option of paying the composition to some and of leaving others liberty to recover their debts in full made no differ- ence. Ibid. And such deed is good where there is no cessio bonorum. Ibid. Composition deed, under 24 & 25 Vict. c. 134, s. 192, securing a composition to the creditors upon the execution of the deed, held binding upon all when duly executed by majority in number and three-fourths in value of the creditors, and a good deed. Per Blackburn, J., and Mellor, J. Dingwall v. Edwards, cxvi. 738 ; 4 B. & S. 738. But, per Cockburn, C. J., and Crompton, J., that the deed was bad, as excluding from the benefit of it those creditors not executing it. Ibid. Giving time, by deed of arrangement, under Bankruptcy Law Consolidation Act 1849, will discharge, on equitable defence, accommodation acceptor. Bailey v. Edwards, cxvi. 761 ; 4 B. & S. 761. A composition deed, under 24 & 25 Vict. c. 134, containing a release, is pleadable in bar to an action by a non-assenting creditor. Whitehead v. Porter, cxvii. 193 ; 5 B. & S. 193. Where one of the creditors becoming a surety has a covenant from the debtor to pay his instalment, and the other creditors are only to receive their instalments through a trustee on demand in writing, the difference is not such as to invali- date the deed. Wells v. Hacon, cxvii. 196 ; 5 B. & S. 196. A deed whose effect is that each executing creditor releases his own separate debt, in furtherance of an agreement with the intent that the debts of the non- assenting crditors should be released, operates as a release of the debts of all: Ibid. A clause in a composition deed rendering a creditor, who had taken a bill of exchange from the debtor, liable to indemnify him, is unreasonable and invalidates the deed as to one who had taken no such bill. Balden v. Pell, cxvii. 213 ; 5 B. & S. 213. A deed amounting to an accord and satisfaction, in consideration of the debtor agreeing to carry on his profession and pay half of his income to a trustee for the creditors, until the agreed composition is paid, is valid. Keyes v. Elkins, cxvii. 240 ; 5 B. & S. 240. _ Though it contain a provision reserving remedies against the sureties of the debtor. Ibid. The sheriff is not liable in an action for an escape on the discharge of a debtor 180 DEBTOR AND CREDITOR, II., III., IV. taken on a ca. sa. on tho production by him of a certificate, under s. 198, of 24 & 25 Vict. c. 134, signed by the registrar in bankruptcy to the effect that a com- position deed has been duly registered, though the deed is invalid. Lloyd v. Harrison, cxviii. 36 ; 6 B. & S. 36. A composition deed which does not contain a release from the creditors is no bar to a subsequent action. Jones v. Morris, cxviii. 108 ; 6 B. & S. 198. A release in a composition deed dees not extend to a co-debtor. Andrew v. Macklin, cxviii. 201 ; 6 B. & S. 201. Provision in a deed that the inspectors should retain a sufficient sum for the payment of dividends to non-assenting creditors, to be paid upon their request in writing, is not unreasonable. Hernulewicz v. Jay, cxviii. 697 ; 6 B. & S. 697. A composition deed executed by a firm for the benefit of its creditors is no bar to an action against one of its members for an individual debt. E. C. Railway Co. v. Westall, cxviii. 970 ; 6 B. & S. 970. The general terms of a release in a composition deed may be restrained by other parts. Haselgrove v. House, cxviii. 975 ; 6 B. & S. 975. A deed in which defendant covenants to pay a composition to certain persons named in the schedule is no bar to a claim which he omitted to insert. Buvelot v. Mills, cxviii. 986 ; 6 B. & S. 986. III. When conveyance or assignment by debtor bad. An instrument not registered under 17 & 18 Vict. o. 36, which operates as a bill of sale of machinery attached to the freehold for trade purposes, and also as a mortgage of the land and machinery, is void as to the machinery against as- signees in bankrup'tcy. Waterfall v. Penistone, Ixxxviii. 876 ; 6 E. & B. 876. Bill of sale void as to creditors, under 17 & 18 Vict. c. 36, s. 1, unless descrip- tion of residence and occupation filed with it. Hatton v. English, xc. 94 ; 7 E. & B. 94. Bona fide bill of sale in consideration of a past debt and an advance is good against creditors, though the debtor remain in possession with his name over the door. Weaver v. Joule, xci. 309 ; 3 C. B. N. S. 309. Description of the residence of the witness to a bill of sale as berng the office where he spent the day, is sufficient. Blackwell v. England, xcii. 541 ; 8 E. & B. 541. A bill of sale may give creditor a right to enter and seize after-acquired goods. Chidell v. Galsworthy, xcv. 471 ; 6 C.^B. N. S. 471. 17 & 18 Vict. c. 36, s. 1, requires the bill of sale and the affidavit to be filed at the same time. Grindell v. Brendon, xcv. 698 ; 6 C. B. N. S. 698. Payment by a debtor on the eve of bankruptcy, without a demand by the creditor, is not necessarily a fraudulent preference. Bills v. Smith, cxviii. 314; 6 B. & S. 314. IV. Payment. Plea alleging payment of part and that the balance had been placed in hands of another, by agreement, to await adjustment of differences, is good as a plea of payment. Page v. Meek, cxiii. 259 ; 3 B. & S. 259. Circumstances under which a general payment will be appropriated to the pay- ment of a rate, so as to entitle the person paying to be placed on the list of voters. Powell v. Jones, cxiv. 83 ; 18 C. B. N. S. 83. Note on the general subject of payment by the editor. Ibid. DECEIT. DEED, I., II. 181 DECEIT. Railway company liable for advertising on time-table train which had been discontinued. Denton o. Great Northern Railway Co., lxxxv. 860; 5 E. & B. 860. _ 3 Action lies where plaintiff relied substantially on written, though partially on oral, misrepresentations. Tatton v. Wade, lxxxvi. 371 ; 18 C. B. 371. Defendant, who had falsely represented that he had authority to buy for A., held liable for price of goods and costs of an abortive suit against A. Randell v. Trimen, lxxxvi. 786 ; 18 C. B. 786. A declaration which does not allege any fraudulent representation to the plaintiffs by the defendants or any scienter, is bad. Behn v. Kemble, xcvii. 260 ; 7 C. B. N. S. 260. DEED. I. Execution and delivery. IV. Construction of. II. Effect of. V. Other matters relating to. III. Alteration in. I. Execution and delivery. A deed executed in defendant's name by his son for him, being shown him, he said the son had authority, and he adopted it ; held, to amount to delivery. Tup- per v. Foulkes, xcix. 797 ; 9 C. B. N. S. 797. Delivery of a deed of assignment for benefit of creditors " to be used if necessary," "with notice given of an act of bankruptcy, is a complete delivery. Turner v. Hardcastle, ciii. 683 ; 11 C. B. N. S. 683. Cannot be executed by some of partners so as to bind all. Lascaridi v. Gurney, ciii. 890 ; 11 C B. N. S. 890. What facts will constitute a delivery. Xenos v. Wickham, cvi. 381 ; 13 C. B. N. S. 381. Affirmed in Exchequer Chamber, Djid. 866. Actual delivery to insured of policy, not essential. Xenos v. Wickham, cviii. 435, 861 ; 14 C. B. N. S. 435, 861. Delivery will be presumed from execution, if such was intent of parties. Ibid. Deed " signed, sealed and delivered," though in possession of party execntiug, complete and binding, unless intention otherwise. Ibid, reversing s. c, Ex. Ch. and'C. P. cvi. 381; 13 C. B. N. S. 381 : cviii! 435 ; 14 C. B. N. S. 435. Where it does not appear by expres* declaration or otherwise, that deed is only to take effect upon the performance of some event, it will not be considered in escrow. Kidner v. Keith, cix. 35; 15 C. B. N. S. 35. A mere agreement that it shall be executed in duplicate, will not be sufficient. Ibid. II. Effect of. Assignment for benefit of creditors not revocable before trust created, if as- signee a creditor. Siggers v. Evans, lxxxv. 367 ; 5 E. & B. 367. Deed creating onerous trusts, vests estate without assent of trustee, subject to a right to divest. Ibid. Where defendant with his partner assigned all partnership property to the plaintiff, no covenant implied to pay a debt which he owed the firm. Aulton v. Atkins, lxxxvi. 249 ; 18 C. B. 249. But where defendant disposed of bill of exchange drawn to his order, the pro- perty of which was in the firm, held, liable on implied covenant to do nothing in derogation of deed. Ibid. A composition deed, under sect. 224 of 12 & 13 Vict. c. 106, which makes an action by a creditor, whether he has signed it or not, a forfeiture of the debt, but which permits an action by leave of the inspectors, is invalid. Gardner v. Chapman, xcviii. 317 ; 8 C. B. N. S. 317. 182 DEED, III., IV. III. Alteration in. Filling in date of warrant of attorney after execution, does not make void. Keane v. Smallbone, lxxxiv. 179 ; 17 C. B. 179. Deed of release executed with the sum in blank in which the releasee, contrary to intention of releasor, inserted the full amount of debt without deducting a set- off, is void. Fazakerly v. McKnight, lxxxviii. 795 ; 6 E. & B. 795. IV. Construction of. Deed of lessee with blank date, conveying freehold which he expected but failed to obtain, does not transfer the lease, though purporting to convey all his interest. Goodwin v. Noble, xcii. 587 ; 8 E. & B. 587. A mortgage deed contained a covenant by defendant to pay the premiums on a life policy, with a proviso that, in case of neglect, plaintiff might pay them and charge amounts against the hereditaments, but no covenant to repay ; held that plaintiff's remedy, after payment, was by adding the amounts to the mort- gage debt. Browne v. Price, xciii. 598 ; 4 C. B. N. S. 598. A deed describing the exact contents of lots on opposite sides of a turnpike, without mentioning it, the parties supposing the title to be vested in the trus- tees, does not convey the fee of the road. Mayor of Salisbury v. G. N. Railway Co. xciv. 174 ; 5 C. B. N. S. 174. A deed of arrangement, under section 224 of 12 & 13 Vict. c. 106, executed by six-sevenths in number and value of the creditors, containing a covenant by each creditor party to or bound by it, not to sue, and a clause that, if any creditor, by whom or on whose behalf the deed should have been actually executed, should break the covenant, defendant should be discharged from his claim, does not apply as to the latter clause to plaintiff, a creditor who did not execute the deed. Legg v. Cheesebrough, xciv." 741 ; 5 C. B. N. S. 741. Recital construed a covenant where it appeared, from the whole deed, that it was intended thereby to express the entire transaction. Farrall v. Hilditch, xciv. 840 ; 5 C. B. N. S. 840. If, construing a deed as if there were no act of parliament affecting it, it comes within an avoiding statute, it is void. Moore v. Rawlins, xcv. 289 ; 6 C. B. N. S. 289. Where the words are ambiguous they should be read in a sense which will make the deed consistent and legal. Ibid. General words may convey a policy of life insurance. Watson v. McLean, xcvi. 76; E., B. &E. 76. A lease reserving to the lessor a right to make a covered sewer on the land, to convey away his drainage, gives him an exclusive right to its use. Lee v. Steven- son, xcvi. 512; E., B. E. 512. Conveyance of a field containing a certain number of acres, " more or less,'' abutting on a lane, together with all ways therewith used, is, sufficient to convey a strip of land between the enclosure and the lane. Simpson v. Dendy, xcviii. 433 ; 8 C. B. N. S. 433. Affirmed in Exchequer Chamber, c. 883 ; 10 C. B. N. S. 883. Followed by user, it overcomes presumption arising from acts of ownership by the lord over other similar parts of the waste. Ibid. Application of the description depends on usage, when usage is referred to therein. Newton v. Cubitt, civ. 32 ; 12 C. B. N. S. 32. Affirmed in Exchequer Chamber, cvi. 864 ; 13 C. B. N. S. 864. A grant of a ferry, " in as ample a manner as the same has heretofore been used, occupied or enjoyed," makes the extent of the grant depend on usage. Ibid. Construction of clause indeed providing for compensation for injury by work- ing of mines excepted from grant. Berkley v. Shafto, cix. 79 ; 15 C. B. N. S. 79. How far, under the deed, the clause applied to parts where buildings were sub- sequently erected. Ibid. The construction of a deed is a matter for the court, not the jury. Skull ». Glenister, cxi. 81 ; 16 C. B. N. S. 81. If there be any dispute as to the surrounding circumstances, under which it is executed, that is a question for the jury. Ibid. DEED, IV., V. DETINUE. 183 Extent to which right of way constituted by reservation in deed. Wood r. Stourbridge Railway Co., cxi. 222 ; 16 C. B. N. S. 222. Construction of line of boundaries in deed is question for court. Lyle v. Rich- ards, cxiii. 962 ; 3 B. & S. 962. How far parol evidence admissible to explain. Ibid. Covenant that, notwithstanding any act, &c, done by the grantor, he has a good right to convey, is not broken by a previous agreement to pay a yearly sum for encroachments in which an easement nas not been acquired. Thackeray v. Wood, cxvii. 325 ; 5 B. & S. 325. Affirmed in Exchequer Chamber, cxviii. 766 ; 6 B. & S. 766. V. Other matters relating to. On a sale of property, " land tax redeemed," where one of the conditions was that every deed should be conclusive evidence of the facts recited in it, a recital of a previous sale "free from land tax," is not sufficient. Buchanan v. Popple- ton, xciii. 20 ; 4 C. B. N. S. 20. A deed may give a creditor a right to enter and seize after-acquired goods. Chidell v. Galsworthy, xcv. 471 ; 6 C. B. N. S. 471. The existence of a deed may be presumed from circumstances. Regina v. Fordingbridge, xcvi. 678 ; E., B. & E. 678. There may be a parol agreement not to enforce a covenant. Nash v. Arm- strong, c. 258 ; 10 C. B. N. S. 258. A deed-poll in order to be registered must be attested by one of the witnesses to its execution. Regina v. Registers of Middlesex, cii. 322 ; 1 E. & E. 322. A composition deed, under 12 & 13 Vict. c. 106, is void, if made with joint creditors only, distributing among them the separate and joint assets. Leonard v. Sheard, cii. 667 ; 1 E. & E. 667. Insurance broker without authority cannot cancel deed. Xenos v. Wickham, cviii. 435, 861 ; 14 C. B. N. S. 435, 861. Circumstances requisite to delivery, discussed. Am. Ed. note. Ibid. DETINUE. Lies against an attorney for deeds entrusted to him where he has lost them for want of due care, though before demand. Reeve v. Palmer, xciv. 84 : 5 C. B. N. S. 84. Lies for detaining goods of a bailor under a contract with the bailee. North v. G. N. Railway Co., xcv. 926 ; 6 C. B. N. S. 926. Lies against an incorporated company whose clerk refused to deliver up to plaintiff his goods without a written order. Barnett v. Crystal Palace Co., ci. 984 ; 1 B. 4B. 984. Detinue will lie by receiver against sender of a letter, into whose hands it has come as bailee. Oliver v. Oliver, eiii. 139 ; 11 C. B. N. S. 139. The Common Law Procedure Aet, s. 34 (23 & 24 Vict. c. 126), does not apply to detinue. Danby v. Lamb, ciii. 423 ; 11 C. B. N. S. 423. Plea that title deeds came into, possession of and were lost before death of plaintiff's devisor, and had never since been in defendant's possession, is bad : per Wightman, J. Goodman v. Boycott,, ex. 1 ; 2 B. & S. 1. But contra, Blackburn, J., although as against devisor it would be bad. Ibid. Under rules 1 & 2 of Hil. Term 1853 (Ixxvi. 87; 13 C. B. 87), counts in deti- nue and trover cannot be joined without leave from a judge at Chambers. Mock- ford v. Taylor, cxv. 209 ; 19 C. B. N. S. 209. 184 DISCLAIMER, DISCOVERY, I., II. DISCLAIMER. Refusal to pay rent until he learns who is the right owner is not a disclaimer Jones v. Mills, c. 788 ; 10 C. B. N. S. 788. DISCOVERY UNDER COMMON LAW PROCEDURE ACTS. I. Inspection. II. Interrogatories. I. Inspection. Inspection of papers of the other side not granted where the suit was manifestly commenced in order to get information for use in another suit. Temperly v. Willett, lxxxviii. 380 ; 6 E. & B. 380. Demandant in dower not entitled to inspection of deeds as against a hona fide purchaser for value, without notice of marriage. Gomm v. Parrott, xci. 47 ; 3 C. B. N. S. 47. In abolishing profert and oyer the Act of 1852 did not take away the right of inspection of a deed, under which the other party justifies. Harbor Co. v. Wa- terworks Co., xcvii. 816; 7 C. B. N. S. 816. Inspection of documents produced in evidence not permitted for the purpose of moving for new trial. Pratt v. Goswell, xcix. 706 ; 9 C. B. N. S. 706. In an action by consignee against shipowner for damages, caused by unsea- worthiness, inspection of ship's surveys and shipmaster's bill permitted. Daniel v. Bond, xcix. 716 ; 9 C. B. N. S. 716. The power to order an inspection of real or personal property, under the Act of 1854, s. 58, is co-extensive with that of courts of equity. Bennett v. Griffiths, cxii. 467 ; 3 E. & E. 467. How far court will order production of documents, under 50th section. Woolley v. Pole, cviii. 538 ; 14 C. B. N. S. 538. Will not do so when it is for fishing purposes. Ibid. Under Act of 1854, s. 50, where the party as a corporation cannot make an affidavit, discovery of documents may be had upon affidavit of their attorney. Kingsford v. G. W. Railway Co., cxi. 761 ; 16 C. B. N. S. 761. _ Under 17 & 18 Vict. c. 125, s. 50, an application for production of documents must be supported by affidavit of party to the cause. Christopherson v. Lotinga, cix. 809 ; 15 C. B. N. S. 809. Under Act of 1854, s. 50, inspection of documents will be granted upon reason- able ground shown that they exist and are relevant. Houghton v. Assurance Co., cxii. 80 : 17 C. B. N. S. 80. Discovery, under 17 & 18 Vict. c. 125, s. 50, refused in an action against attorney for negligence. Cox v. Bockett, cxiv. 239 ; 18 C. B. N. S. 239. Application for the address of the defendant granted, under 15 & 16 Vict. c. 76, s. 7. Ibid. It is no answer to such application that it is wanted for use in another pro- ceeding. Ibid. Privileged communications will not be required to be produced. Bank of India v. Rich, cxvi. 73 ; 4 B. k S. 73. Qucere, whether rule is the same as in equity. Ibid. In an action on a marine policy for a constructive total loss, the underwriter is entitled to inspection of all material papers in possession of the plaintiff. Rayner v. Ritson, cxviii. 888 ; 6 B. & S. 8S8. II. Interrogatories. Objection to interrogatories to party that answers would work forfeiture of his estate must be made when he is sworn. Chester v. Wortley, lxxxiv. 410 ; 17 C. B. 410. DISCOVERY, II. 185 Interrogatories by plaintiff allowed after plea without affidavit. James v. Barns, lxxxiv. 596 ; 17 C. B. 596. Interrogatories likely to advance party's case permitted, though they tended to disclose opponent's case. Whateley v. Crowter, lxxxv. 709 ; 5 E. & B. 709. Plaintiff asking to deliver interrogatories before declaring, must show the nature of his cause of action. roomes v. Morrison, lxxxv. 984 ; 5 E. & B. 984. Semble, that answers should be categorical. Chester v. Wortley, lxxxvi. 239 ; 18 C. B. 239. Application for examination viva voce, because of insufficient answers, should be made without delay. Ibid. No ground for refusing to answer interrogatories in an action for infringement of patent, that it would expose defendant's customers to lawsuits. Tetley v. Easton, lxxxvi. 643 ; 18 C. B. 643. Not allowed for the purpose of obtaining information which the party could get from his own agents. Bird v. Malzy, lxxxvii. 308 ; 1 C. B. N. S. 308. Plaintiff'" r.:;ignees in bankruptcy cannot be asked upon what act of bank- ruptcy they intend to reply. Edwards v. AVakefield, lxxxviii. 462 ; 6 E. & B. 462. Not allowed where the sole object is to discover the case of the adversary or ■where to contradict ■written documents. Moor v. Roberts, lxxxix. 671 ; 2 C. B. N. S. 671. Interrogatories as to the contents of a lost instrument permitted only how- ever to be used on the trial on the event of the party being in a position to give secondary evidence. "Wolverhampton New Waterworks Co. v. Ilawksford, xciv. 703 ;5C.E. N. S. 703. In an action for calls defendant was permitted to be interrogated as to whether and when he received a writing relating to his becoming a shareholder or director. Ibid. Allowed seeking admissions from plaintiff of conversation as to subject-matter with agent of defendant. Rew v. Hutchins, c. 829 ; 10 C. B. N. S. 829. And asking for dates and names of places and correspondents. Ibid. Aliter, as to prior transactions not connected with the contract. Ibid. And as to terms of contract between plaintiff and other persons. Ibid. And to disprove a custom on which plaintiff supposed to rely. Ibid. Relevant interrogatories, which party would be bound to answer in witness- box, permitted. Zychlinski v. Maltby, c. 838 ; 10 C. B. N. S. 838. Interrogatories may be delivered (under 17 & 18 Vict. u. 125) though the an- swers may render a person liable to criminal prosecution, but he may refuse to answer. Bartlett v. Lewis, civ. 247 ; 12 C. B. N. S. 247. Interrogatories may be delivered in an interpleader issue, under 17 & 18 Vict. c. 125. White v. Watts, civ. 266 ; 12 C. B. N. S. 266. Interrogatories by defendant, under Act 1854, not allowed as to nature of title upon which plaintiff relied in suit in ejectment, unless there are special circum- stances. Stote v. Rew, cviii. 209 ; 14 C. B. N. S. 209. Interrogatories, under Act 1854, s. 51, allowed though an affirmative answer would disclose fraud in defendant. Goodman v. Holroyd, cix. 839 ; 15 C. B. N. S. 839. Interrogatories upon plaintiff under Act 1 854 will only be allowed to defendant when the affidavit discloses special circumstances requiring it. Pearson v. Turner, cxi. 157; 16 C. B.'N. S. 157. Under Act 1854, b. 87, interrogatories in an action for false and fraudulent representation in the sale of a business, when allowed. Blight v. Goodliffe, cxiv. 757 ; 18 C. B. N. S. 757. Not allowed where the answers would have the effect of causing a forfeiture of defendant's estate. Pye v. Butterfield, cxvii. 829 ; 5 B. & S. 829. Not allowed plaintiff where the object is to discover his cause of action or whether he has any. Morris v. Parr, cxviii. 203 ; 6 B. & S. 203. InteVrogatories which may reasonably be expected to aid the case of the party interrogating are admissible, though they would disclose' the case of the other side. Hawkins v. Carr, cxviii. 995 ; 6 B. & S. 995. 186 DISTRESS, I— V. DISTKESS. I. Causes for which and persons by III. Fraudulent removal, whom Distress may be made. IV. The seizure. II. Time at which Distress can be V. Remedy for illegal Distress. made. VI. Other matters relating to Distress. I. Causes for which and persons by -whom distress mat be made. Rector cannot distrain for rent charge created in lieu of titles, by 5 Geo. 4, c. 14, on lands owned before the passage of the act and for rent charge on others bought subsequently. Bedford v. Sutton Coldfield, xci. 449 ; 3 C. B. N. S. 449. But a distress for rent charge on all the lands of any owner may be levied on the occupier of a part. Ibid. 11 & 12 Vict. c. 44, does not protect a magistrate, who without jurisdiction issues a distress warrant for a poor rate. Pedley v. Davis, c. 492 ; 10 C. B. N. S. 492. But the collector obeying the warrant is protected by 24 Geo. 2, c. 44, s. 6. Ibid. The right of distress is incident to the right of anchorage. Free Fishers, &c., v. Gann, ciii. 387 ; 11 C. B. N. S. 387. Affirmed in Exchequer Chamber, cvi. 853 ; 13 C. B. N. S. 853. Reversed, H. of L. on another point, cxv. 803 ; 19 C. B. N. S. 803, Justices have no discretion to refuse a distress warrant to enforce a rate, un- appealed from and good on its face. Luton Board of Health v. Davis, cv. 678 ; 2 E. & E. C78. Justices have no jurisdiction to refuse warrant of distress when rate is good on its face and no appeal. The character of the occupation is a question for the Court of Appeal. Regina v. Bradshaw, cv. 836 ; 2 E. & E. 836. Right of distress for tolls given by statute must be strictly pursued. North v. L. & S. W. Railway Co., cviii. 132 ; 14 C. B. N. S. 132. There must be a demise of premises to authorize distress. A mere license to use, not sufficient. Hancock v. Austin, cviii. 634; 14 C. B. N. S. 634. One joint tenant may demise his part to the other with the incidents of rever- sion and distress. Cowper v. Fletcher, cxviii. 464 ; 6 B. & S. 464. II. Time at which Distress can be made. To allow distress, under 8 Ann. c. 14, s. 7, tenant must be in possession. Tur- ner v. Barnes, ex. 435 ; 2 B. & S. 435. III. Fraudulent removal. An agreement of lease with actual possession on terms of proposed lease makes tenancy at will, and landlord can distrain for fraudulent removal. An- derson v. Midland Railway Co. cvii. 614 ; 3 E. & E. 614. IV. The seizure. Where tenant mortgaged goods on the property, giving possession, and then became bankrupt, owing more than a year's rent, it was held they could be dis- trained for I'.ie whole amount. Brocklchurst r. Lawe, xc. 176; 7 E. B. 176. The goods were liable for rent becoming due after assignees declined the ten- ancy. Ibid. Where the landlord did. not seize the goods, but by consent of tenant made out an inventory, and put a man in possession, it was held an impounding. Tennant v. Field, xcii. 336 ; 8 E. & B. 336. Climbing fince and gaining access by open door, will not make distress illegal. Eldridge v. Stacey, cix. 458 ; 15 C. B. N. S. 458. Things deposited with pawnbroker, even though twelve months have elapsqd, cannot be distrained. Swire v. Leach, cxiv. 479 ; 18 C. B. N. S. 479. V. Remedy for illegal distress. Where distress irregular, tenant is only entitled, under 1 1 Geo. 2, c. 19, to recover for actual damage. Rodgers v. Parker, lxxxvi. 112; 18 C. B. 112. DISTRESS, V., VI. DIVORCE. 187 Landlord is responsible for irregularities by the broker, in conducting a dis- tress he was authorized to make. Haseler v. Lemovne, xciv. 530 ; 5 C. B. N. S. 530. Trespass lies for distraining tools of trade not in use, there being sufficient other distrainable goods on the premises. Nargett v. Nias, cii. 439 ; 1 E. & E. 4|9. Non-compliance with terms of statute giving right of distress for tolls, will make company distraining trespasser ab initio. North v. L. & S. W. Railway Co., cviii. 132; 14 C. B. N. S. 132. Action of trespass will lie against surveyor of highways for illegal distress for highway rates. Freeman v. Read, cxvi. 174 ; 4 B. & S. 174. Where there has been no sale, 11 Geo. 2, c. 10, s. 19, in regard to irregularity in distress, does not apply. King v. England, cxvi. 782 ; 4 B. & S. 782. VI. Other matters relating to distress. Payment of rent under distress is not a conclusive admission of title in the distrainor. Knight v. Cox, lxxxvi. 645 ; 18 C. B. 645. Right of distress may be postponed by agreement. Giles v. Spencer, xci. 244 ; 3 C. B. N. S. 244. Action lies for detaining goods taken under distress after tender before im- pounding. Loring v. Warburton, xcvi. 507 ; E., B. & E. 507. Leaving goods distrained, a few moments (to get some beer), is no evidence of an abandonment, and outer door may be broken open to re-enter. Bannister v. Hyde, cv. 628 ; 2 E. & E. 628. A joint distress on goods in closes, A. & B., for rent due on demise of each close, is good, if goods be taken on each close for rent due on demise of that close. Phillips v. Whitsed, cv. 804 ; 2 E. & E. 804. A tender of rent due and costs within five davs after distress and before sale, is good, though after impounding. Johnson v. tJpham, cv. 250 ; 2 E. & E. 250. Ellis v. Taylor, 8 M. & W. 415, not followed. Ibid. Person rightfully in possession under distress put out by force can regain possession by force, unless there has been abandonment of distress. Eldridge v. Stacey, cix. 458 ; 15 C. B. N. S. 458. Distress after act of bankruptcy for more than a year's rent, where title of assignees does not relate to the act, is good within 12 & 13 Vict. c. 106. Paull v. Best, cxiii. 537 ; 3 B. & S. 537. Where goods have been distrained and appraised, and transferred by order of landlord to a third party, there is no sale, under 2 Wm. & M. sess. 1, c. 5, s. 2. King v. England, cxvi. 782 ; 4 B. & S. 782. And this is not affected by 11 Geo. 2, c. 19, s. 19, curing irregularity in distress. Ibid. DIVORCE. Wife may pledge her husband's credit for expenses of divorce a mensa et thoro where reasonable grounds for the application. Brown v. Ackroyd, lxxxv. 819 ; 5 E. & B. 819. ' Pushing her out of the room and threatening to put her in lunatic asylum not reasonable grounds. Ibid. A protection order, under sect 21 of 20 & 21 Vict. c. 85, obtained pending an action, will not authorize the action if not maintainable at its commencement. Midland Railway Co. v. Pye, c. 179 ; 10 C. B. N. S. 179. To a suit against husband on a covenant to pay wife an annuity (reciting and admitting wife's adultery), a decree of dissolution of marriage under a subsequent act of parliament, though obtained for same act of adultery, is no answer. Goslin v. Clark, civ. 681 ; 12 C. B. N. S. 681. The court refused to expunge the registration of a decree for alimony under the divorce act. Ex parte Holden, cvi. 641 ; 13 C. B. N. S. 641. 188 DOMICIL. EASEMENT, I. DOMICIL. A gaol, in which the plaintiff was confined when suit was brought, is not the place where she " dwells," within ,9 & 10 Vict. c. 95, s. 128. Dunston v. Pat- erson, xciv. 267 ; 5 C. B. N. S. 267. - DONATIO MOKTIS CAUSA. A policy of life insurance may be the subject of a donatio mortis causa. Witt v. Amis, ci. 109 ; 1 B. & S. 109. DOWER. Demandant in dower not entitled to inspection of deeds, under Common Law Procedure Act, as against a bona fide purchaser for value without notice of the marriage. Gomm v. Parrott, xci. 47 ; 3 0. B. N. S. 47. Adultery without reconciliation is a bar to dower under Westminster II., 13 Edw. 1, c. 34, though the wife left her husband because of cruelty. Woodward v. Dowse, c. 722 ; 10 C. B. N. S. 722. DURESS. When freight is obtained by duress of goods, the lien being gone, consignee can recover it back. Tamvaco v. Simpson, cxv. 453 , 19 C. B. ST. S. 453. EASEMENT. I. Generally. (a) Generally. II. Ancient lights. (b) Dedication to public. III. Right to flowing water. (c) Obstruction of way. IV. Right to ferry. Id) Duty to repair. V. Right of way. (e) Extinction of right of way. I. Generally. A pile driven into the bed of a river for the use of a wharf, used twenty years without objection from the owner of the soil, presumed to be there in the exercise of a right or easement. Lancaster v. Eve, xciv. 717 ; 5 C. B. N. S. 717. The conservators of the Thames, under 20 & 21 Vict. c. 147, s. 53, have power to authorize the erection of buildings interfering with the navigation of the river. Kearns v. The Cordwainers' Co., xcv. 388 ; 6 C. B. N. S. 388. If a public right be taken away by act of parliament, there can be no action for interference with the accessory private right. Ibid. A lease reserving to the lessor a right to make a covered sewer on the land to convey away his drainage, gives him an exclusive right to its use. Lee v. Stevenson, xcvi. 512; E., B. &'"E. 512. EASEMENT, I., II. 189 Eight to -wind for a -windmill is not an easement, within s. 2 of 2 & 3 Wm. 4, C. 71. Webb v. Bird, c. 268 ; 10 C. B. N. S. 268. Affirmed in Ex. Ch. cvi. 841 ; 13 C B. N. S. 841. A statute giving a company power to appoint and set out towing paths and to make use of the lands of individuals for every purpose necessary to navigation, creates an easement and not a fee. Badger v. S. i . Railway Co., cii. 347 ; 1 E. & E. 347. Can be claimed by custom. Constable v. Nicholson, cviii. 230 ; 14 C. B. N. S. 230. Qucere. how far right of support is an easement. Rowbotham v. Wilson, cvii. (H. of L.) 752 ; 3 E. & E. 752. Nature of contract for liberty to dig and carry away cinders by party having no right to land. Smart v. Jones, cix. 717 ; 15 C. B. N. S. 717. Prima facie every owner of land is entitled to lateral support from the land of his neighbor. Murchie v. Black, cxv. 190; 19 C. B. N. S. 190. A purchaser of land taking it subject to condition that a house of certain character is to be built on adjoining land cannot recover for damage by reason of loss of lateral support. Ibid. The Prescription Act 2 & 3 Wm. 4, s. 71, does not apply to a right of ease- ment in gross. Shuttleworth v. Le Fleming, cxv. 687 ; 19 C. B. N. S. 687. Where lands " now in occupation of A," are devised and A. has been in the habit of going to and using a pump on land of devisor, the right to use of pump will not pass. Polden v. Bastard, cxvi. 257 ; 4 B. & S. 257. Such a right is not a continuous easement and must be created de novo, and annexed to the thing devised to make it pass. Ibid. ' II. Ancient lights. One who closes up his ancient lights in such a way as not to manifest his in- tention to abandon or to lead others to expense, in the belief that he has done so, does not lose the right. Stokoe v. Singers, xcii. 31 ; 8 E. & B. 31. A declaration for obstructing ancient lights, which shows an obstruction that may be a permanent injury to the reversion, is sufficient. Metropolitan Asso- ciation v, Peteh, xciv. 504 ; 5 C. B. N. S. 504. Action does not lie for obstructing ancient lights, so altered that defendant cannot obstruct unprivileged parts without also obstructing privileged parts. Hutchinson v. Copestake, xcviii. 102; 8 C. B. N. S. 102. Affirmed in Exchequer Chamber, xcix. 863 ; 9 C. B. N. S. 863. Overruled in Tapling v. Jones, cvi. 876 ; 13 C. B. N. S. 876. Enlargement of ancient lights justifies building wall, obstructing as well the old as the new opening, when one cannot be done without doing both. Jones v. Tapling, ciii. 283 ; 11 C. B. N. S. 283. Continuance of an obstruction to ancient lights after the abandonment of the enlargement is unlawful : Byles, J., and Keating, J., contra. Ibid. Affirmed civ. 826 ; 12 C. B. N. S. 826 : Pollock, C. B., and Martin, B., dissenting. The enlargement of ancient lights justifies an obstruction to old as well as new lights only, when the latter cannot be obstructed without obstructing the former ; otherwise the ancient right remains. Binckes v. Pash, ciii. 324 ; 11 C. B. N. S. 324. One tenant may acquire an indefeasible right to light and air against another tenant of the same landlord by lapse of time, under the Prescription Act, 2 & 3 Wm. 4, c. 71. Frewen v. Phillipps, ciii. 449 ; 11 C. B. N. S. 449. Plea of a custom to rebuild to any height is no defence to an action for ob- structing ancient lights since the Prescription Act, 2 & 3 Wm. 4, c. 71, where right has been enjoyed for twenty years before any suit in which enjoyment for twenty years prior thereto is brought into question. Cooper v. Hubbuck, civ. 456; 12 C. B. N. S. 456. Opening a modern light, overlooking the grounds of another, is an innocent act. Tapling v. Jones, cvi. 876 ; 13 C. B. N. S. 876. So also is building, on one's own land, a wall which obstructs the view from a modern light. Ibid. But building a wall, which obstructs an ancient light, is illegal, though it be the only means of obstructing an objectionable modern light. Ibid. 190 EASEMENT, III.— V. (a). III. Right to flowing watee. Where occupiers of plaintiff's land for more than forty years had gone on defendant's land and^turned water of a brook into an. artificial channel, defend- ant liable for interruption. Beeston v. Weate, lxxxv. 986 ; 5 E. & B. 986. "Water cannot be detained until so late in the day that landowner below is de- prived of the full use of it. Sampson v. Hoddinott, lxxxvii. 590 : 1 C. B. N. S. 590. Riparian rights limited to natural streams. Ibid. All persons owning lands along a stream have a natural right to use the water and may begin when they will. Ibid. Affirmed in Exchequer Chamber, xci. 596 ; 3 C. B. N. S. 596. 49 Geo. 3, c. 77, enclosing the locus irb quo and the General Enclosure Act, 41 Geo. 3, c. 109, do not extinguish the right to take water from a well. Race v. Ward, xc. 384; 7 E. & B. 384. Semble, nor the means of access. Ibid. 13 Geo. 2, c. 26, providing that the river to be made navigable and all lands used by the company for the benefit of the navigation should be vested in the company, gives them such an interest in the water itself as is interfered with by its abstraction. Medway Co. v. Romney, xcix. 575 ; 9 C. B. N. S. 575. When the owner of the dominant and servient tenement conveys the former, with all its waters, easements, &c, the purchaser has a right, as against a subse- quent purchaser of the servient tenement, to the land, with the waters running as they did at the time of the conveyance. Wardle v. Brocklehurst, cii. 1058 ; 1 E. & E. 1058. No action will lie for interfering with water percolating underground into a well, or for abstracting water already collected in such well by percolation. New River Co. v. Johnson, cv. 436 ; 2 E. & E. 436. Canal company cannot recover for injury caused by mining under them when they have not inspected or given notice of refusal under 16 Geo. 3, c. 28. Nav. Co. v. Dudley, cvii. 409 ; 3 E. & E. 409. Right of adjoining mine owner to flow of water into neighbor's mine. Baird v. Williamson, cix. 376 ; 15 C. B. N. S. 376. Abstraction of water in rivulet fed by underground springs by reason of erec- tion of sewer gives no right at common law to damages. Regina v. Board of Works, cxiii. 710 ; 3 B. & S. 710. Nor under 11 & 12 Vict. c. 112, ss ; 50, 69. Ibid. ' What sufficient occupation to entitle a man to claim right to watercourse, under Prescription. Act, 2 & 3 Wm. 4, c. 71. Gaved v. Martyn, cxv. 732 : 19 C. B. N. S. 732. When such claim is good, and when not. Ibid. Injuriously affecting a watercourse by a local board without consent is not a subject of compensation, under 21 & 22 Vict. c. 68, but a ground for an action. Regina v. Darlington, cxvii. 515 ; 5 B. & S. 515. Affirmed in Exchequer Chamber, cxviii. 562 ; 6 B. & S. 562. IV. Right to ferry. A right of ferry between certain landing places held not to extend to a place eight hundred yards distant. Matthews v. Peache, lxxxv. 546 ; 5 E. & B. 546. Semble, that owners of ferries within sect. 99 of 7 & 8 Geo. 4, c. 75, do not require license. Ibid. To an action for a disturbance of a ferry, a plea showing that a new state of things had arisen to which the right was not applicable, is bad. Newton v. Cubitt, xciv. 627 ; 5 C. B. N. S. 627._ Wherever public convenience requires a new passage near an old ferry, the proximity of latter is not actionable. Newton v. Cubitt, civ. 32 ; 12 C. B. N. S. 32. Affirmed in Exchequer Chamber, cvi. 864 ; 13 C. B. N. S. 864. V. Right of way. (a) Generally. Act of 2 & 3 Wm. 4, c. 71, requires user, as of right, for forty continuous years next before suit. Battishill r. Reed, lxxxvi. 696 ; 18 C. B. 696. EASEMENT, V. (a), (b), (c). 191 Defeated by occupation of both properties by one tenant within the forty years. Ibid. Where several parishes, maintaining their own highways, are comprised within district assigned to local board of health, the highways are to be maintained by a general district rate. Moseley v. Local Board of Health, lxxxviii. 518 ; 6 E. & B. 518. The presumption that the soil of a road usque ad medium filum vice belongs to the owners of the adjoining lands, applies to a private as well as a public road. Holmes v. Bellingham, xcvii. 329 ; 7 C. B. N. S. 329. In conveyance of a close abutting on a highway, with description by measure- ment and plan, the presumption is that it carries the soil of the highway usque ad medium filum. Berridge v. Ward, c. 400; 10 C. B. N. S. 400. On a devise of landlocked lands, in reaching which the testator has used a way over his other lands, there is an implied devise of a right to this way by necessity. Pearson v. Spencer, ci. 571 ; 1 B. & S. 571. A right of way is not such an easement as passes in case of a partition as a necessary incident to separate enjoyment of portion severed. Nor does it pass under the word " appurtenances." Worthington v. Gimson, cv. 618 ; 2 E. & E. 618. No presumption of ownership of soil, by reason of right of way. Smith v. Howden, cviii. 398 ; 14 C. B. N. S. 398. Reversioner not liable for accidents occurring on private way, during term. Bobbins v. Jones, cix. 221 ; 15 C. B. N. S. 221. Where the way is public or for the benefit of the public, the tenant is not liable. Ibid. A parol demise of land with a right of way appurtenant to it, will pass the right of way. Skull v. Glenister, cxi. 81 ; 16 C. B. N. S. 81. But a person so possessed of a right of way cannot use it for the purpose of foing to another close, even though he go first to the one where he has a right. bid. What sufficient to constitute in deed. Wood v. Stourbridge Railway Co., cxi. 222; 16 C. B.N. S. 222. Excavation in land, to make owner liable for accident, must be adjoining pub- lic way. Binks ». S. Y. Railway Co , cxiii. 244 ; 3 B. & S. 244. Right of way may be construed from devise for the benefit of one part, where there is necessary dependence of parts for its enjoyment in the state in which it is devised. Pearson v. Spencer, cxiii. 761 f. ; 3 B. & S. 761 f., affirming ci. 571; IB. &S. 571. (6) Dedication to the public. Where a road commenced under Turnpike Act, since expired, was never com- pleted, but was used by the public and repaired by the parish, held, evidence of being highway repairable by parish. Regina v. Thomas, xc. 399 ; 7 E. & B. 399. An appeal lies to the Quarter Sessions from an order of the justices, under 5 & 6 Wm. 4 , c. 50, s. 23, that a dedicated highway is not of sufficient utility. Re- gina v. Justices of Derbyshire, xcvi. 69 ; E., B. & E. 69. User caused by obstruction of the old way, is no evidence of dedication. Dawes b. Hawkins, xcviii. 848 ; 8 C. B. N. S. 848. An obstruction in a public way, existing at time of dedication, is not a nui- sance by reason of its continuance. Fisher v. Prowse, ex. 770 ; 2 B. & S. 770. Bobbins v. Jones, cix. 221 ; 15 C. B. N. S. 221. A road dedicated to the public, must be made to the satisfaction of the sur- veyor, under 5 & 6 Wm 4, c. 50, s. 23, to make inhabitants liable for repairs. Regina v. Dukinfield, cxvi. 158 ; 4 B. & S. 158. Under 11 & 12 Vict. c. 63, s. 70, a road dedicated to the public within a dis- trict within the act, must be made to the satisfaction of the local board of health, to make them liable. Ibid. Under last statute, sect. 117, local board is surveyor. Ibid. (e) Obstruction of way. A space over which the public have only a limited right is not a street within the meaning of 18 & 19 Vict. c. 120. Le Neve v. Mile End Old Town, xcii. 1054 ; 8 E. & B. 1054. 192 EASEMENT, V. (e), (d). Nor is a movable shed on such a space on the other side of a paved footway an obstruction, within the act. Ibid. Driving to the left at night, though a lamp to the right, is not contributory negligence, preventing recovery for injury caused by an obstruction. Arthy v. Coleman, xcii. 1092 ; 8 E. & B. 1092. Case lies against one who with the permission of the owner, of a private road, negligently obstructs it, by means of which the horse of the plaintiff lawfully using it is injured. Corby v. Hill, xciii. 556 ; 4 C. B. N. S. 556. No obstruction, when in existence at the time of the dedication of the high- way. Fisher v. Prowse, ex. 770 ; 2 B. & S. 770. Robbins v. Jones, cix. 221 ; 15 C. B. N. S. 221. Power of justices for removal, under 5 & 6 Wm. 4, c. 50. Williams v. Adams, ex. 312 ; 2 B. & S. 312. Obstruction of a highway, how far subject of compensation to private individ- uals. Chamberlain v. W. E. & C. P. Railway Co., ex. 605 ; 2 B. & S. 605. Rule in the United States. Note of Am. Ed. Ibid. Where tramways found by the jury to be a nuisance in obstructing the high- way, persons laying them down are liable criminally. Regina v. Train, ex. 640 ; 2 B. & S. 640. Obstruction of road, for which an action would lie, if without authority, is subject of compensation, under Lands Clauses Consolidation Act of 1845. Wood v. Stourbridge Railway Co., cxi. 222 ; 16 C. B. N. S. 222. User of part of highway by innkeeper for twenty years for purposes of trade, does not prevent its being an obstruction. Gerring v. Barfield, cxi. 597 ; 16 C. B. N. S. 597. When costs of indictment for non-repair of highway are payable out of the highway rate, under 5 & 6 Wm. 4, c. 50, s. 95. Regina v. Haslemere, cxiii. 313 ; 3B. &S. 313. In a claim for right of way by user, under 2 & 3 Wm. 4, c. 71, a failure to bring suit for a year, is not necessarily acquiescence in an interruption. Benni- son v. Cartwright, cxvii. 1 ; 5 B. & S. 1. Declarations of a former owner of the dominant tenement showing that cer- tain acts about to be done by him were done with a claim of right, are admissible. Ibid. The highway board may charge the expense of a prosecution of a person for obstructing the way against the parish in which the obstruction existed. Regina v. Heath, cxviii. 578 ; 6 B. & S. 578. An action for a nuisance, for obstructing a footway, is local. Richardson v. Locklin, cxviii. 777 ; 6 B. & S. 777. (d) Duty to repair. Highways within a district must be repaired by a district rate, and not a high- way rate, though the district composed of one parish. Taff Vale Railway Co. v. Cardiff Board of Health, xcii. 535 ; 8 E. & B. 535. Under 5 & 6 Wm. 4, c. 50, s. 95, the justice has no discretion to inquire as to liability to repair a highway, but must order an indictment to be preferred against party charged. Regina v. Arnould, xcii. 550; 8 E. & B. 550. The liability to repair a highway by reason of enclosure of adjoining lands is not in the owner, who is not occupier. Regina v. Ramsden, xcvi. 949 ; E., B. & E. 949. No such liability, where the highway is not immemorial or where the enclosed land was not before used as a passage. Ibid. Under 20 Geo. 2, c. 22, and 20 Geo. 3, c. 32, authorizing an individual to build a public bridge, and in consideration of his expense in building and repairing to take the tolls, he is bound to keep in repair as long as he takes the tolls. Nicholl v. Allen, ci. 916 ; 1 B. & S. 916. Where previous acquittal there cannot be second indictment, under 5 & 6 Wm. 4, c. 56, s. 95, for not keeping highway in repair. Ex parte Bartlett, cvii. 253 ; 3 E. & E. 253. Parish must keep in repair where damger arises from flagging and grating EASEMENT, V. (d), (e). ECCLESIASTICAL LAW, I. 193 over area in existence at time of dedication. Robbins v. Jones, cix. 221 ; 15 C. B. N. S. 211. When highway rate taken for repair of turnpike under 4 & 5 Vict. c. 59. Roberts v. Roberts, cxiii. 183 ; 3 B. & S. 183. Liability to indictment of parish for non-repair under 5 & 6 Win. 4, c. 50, and 23 & 24 Vict. c. 68. Regina v. James, cxiii. 901 : 3 B. & S. 901. Under 8 & 9 Vict. c. 20, s. 58, a railway company may be compelled to repair a highway it used in carrying materials, though in the carts of contractors. W. & G. Railway Co. v. Wakefield, cxvii. 478 ; 5 B. & S. 478. Under sect. 46 of 8 & 9 Vict. c. 20, a railway which in crossing a highway by means of a bridge lowered the level of the highway, is not bound to keep the Blope of the road in repair. L. & N. AV. Railway Co. v. Skerton, cxvii. 559 : 5 B. !fcS. 559. Under 25 & 26 Vict. c. 61, the court cannot direct the costs in an indictment for non-repair against the inhabitants of a parish to be paid by them when a jury has found that the road was not a highway. Regina v. Buckland, cxviii 397 ; 6 B. & S. 397. («) Extinction or eight of way. Parol agreement to substitute a new way for an old one and a discontinuance of the use of the latter afford no evidence of abandonment. Lovell v. Smith, xci. 120; 3 C.B.N. S. 120. ' Prima facie one who is lord of the manor and owner of the adjacent lands on both sides of a turnpike is owner of the soil of the road. M. of Salisbury v. G. N. Railway Co., xc'iv.174; 5 C. B.N. S. 174. There is nothing in 8 & 9 Vict. c. 20 and 3 Geo. 4 c. 126, affecting the owner- ship of the soil in an old turnpike road when a new one has been substituted by a railway company. Ibid. A deed describing the exact contents of lots on opposite sides of a turnpike without mentioning it, both parties supposing the title to be vested in the trustees, does not convey it. Ibid. Justices cannot, under 5 & 6 Wm. 4, c. 50, order a highway to be closed because another road not yet made will be nearer or more commodious. Regina v. Midgley, cxvii. 621 ; 5 B. & S. 621. On appeals to Quarter Sessions from an order directing some roads to be divested and others closed, the court may confirm as to some and quash as to others. Ibid. See also title " Way." ECCLESIASTICAL LAW. I. Generally. IV. Courts. II. Rights of Crown. (a) Jurisdiction. III. Dilapidations. (6) Writs of sequestration. I. Generally. Ordinary cannot controvert patron's title to present, by setting up title of third person, as of Queen by lapse. Storie v. Bishop of Winchester, lxxxiv. 653 ; 17 C. B. 653. Where incumbent of parish church presents himself to district parish church, the value of both being over 1000Z., the parish church becomes ipso facto void. Ibid. Agreement to exchange benefices in their then condition, and not to demand pay for repairs, not necessarily simoniacal. Goldham v. Edwards, lxxxvi. 389 ; 18 C. B. 389. Under 3 & 4 Vict. c. 86, when a commission has reported that there are grounds for a charge against a clerk, the archbishop has no discretion to refuse a hearing. Regina v. Archbishop of Canterbury, lxxxviii. 546 ; 6 E. & B. 546. Vol. III.— 13 194 ECCLESIASTICAL LAW, L— III. Hearing must be in the diocese where clerk holds preferment. Ibid. Where churchwardens were authorized, with a committee, to borrow money, and they agreed that a sum due contractors should be considered a loan, and gave bonds for it, on which interest was paid many years after they were due, the consent of the committee was presumed. Regina v. St. Michaels, Ixxxviii. 807 ; 6 E. & B. 807. The transaction was a "borrowing" within the act. Ibid. The liability of the ratepayers was not lost by non-payment of principal within twenty years. Ibid. Minister of chapel has the right to appoint the clerk, and continuance is con- strued to be an appointment for another year. Jackson v. Courtenay, xcii. 8 ; 8 E. & B. 8. During the year the minister cannot remove him without cause. Ibid. Minister entitled to the possession of the vestry room as against the clerk. Ibid. Substitution of an annual payment for tithes by 7 Geo. 4, c. 54, does not pre- vent the legal annexation of a portion of such payment under 1 & 2 Wm. 4, c. 45, s. 21. Hughes v. Denton, xciv. 765 ; 5 C. B. N. S. 765. 19 & 20 Vict. c. 104, s. 14, makes a district church a separate and distinct parish only for ecclesiastical purposes, and does not prevent its receiving such annexation. Ibid. Under sect. 21 of 1 & 2 "Wm. 4, c. 45, and sect. 3 of 7 Geo. 4, e. 54, a warrant may issue for arrears of such annexed portion. Ibid. The acts of parliament imposing restrictions upon Roman Catholics as to pro- perty did not prevent them from alienating lands. Earl of Shrewsbury v. Scott, xcv. 1 ; 6 C. B. N. S. 1. Sect. 8 of the Shrewsbury Estate Act., 6 Goo. 1, c. 29, is not repealed by the Roman Catholic Relief Act, 10 Geo. 4, c. 7. Ibid. Action does not lie by a churchwarden against a vestry clerk, for an unauthor- ized use of a church rate, in accordance with a custom of long standing, of which the warden was aware and to which he did not object. Cooper v. Law, xcv. 502; 6 0. B. N. S. 502. A bishop has no right to demand, of the presentee of a benefice, before insti- tution, a testimonial from the bishop of a diocese, in which he has had the cure of souls. Marshall v. Bishop of Exeter, xcvii. 653 ; 7 C. B, N. S. 653. Affirmed in Exchequer Chamber, cvi. 820 ; 13 C. B. N. S. 820. An advowson is a temporal right of property. Bishop of Exeter v. Marshall, cix. 857 ; 15 C. B. N. S. 857. Affirming s. c, xcvii. 653 ; 7 C. B. N. S. 653. Bishop cannot reject clerk presented, without special cause duly set forth. Ibid. Ecclesiastical law becomes a part of the law of the land only when adopted by statute or custom. Ibid. , Canons of 1603 not binding on the laity. Ibid. A churchwarden is not relieved from the duties of his office until his successor has been duly qualified. Bray v. Somer, ex. 374 ; 2 B. & S. 374. The vicar is entitled to the possession of the chancel as against the lay rector. Griffin v. Dighton, cxvii. 93 ; 5 B. & S. 93. The enrolment of the boundaries of a consolidated chapelry, in the Court of Chancery, is not necessary since 8 & 9 Vict. c. 70, s. 9. Regina v. South Weald, cxvii. 391 ; 5 B. & S. 391. II. Eights of crown. No right to present to an English benefice on the appointment of the incum- bent to a bishopric in New Zealand. Regina v. Eton College, xcii. 610 : 8 E. & B. 610. This right, on appointment to English bishopric, is not barred by previous errant of the advowson. Ibid. III. Dilapidations. In action for dilapidations, plea that defendant and plaintiff exchanged bene- fices in their then condition, and plaintiff agreed not to demand pay for repairs, held good because contract not necessarily simoniacal. Goldham v. Edwards, lxxxiv. 141 ; 17 C. B. 141. ECC. LAW, III., IV. (a), (b). EJECTMENT, I.— III. 195 Rector or his executors may remove hot-houses, erected by him, apart from the rectory, consisting of frame and glass work on walls imbedded in mortar. Mar- tin v. Roe, xc. 237 ; 7 E. & B. 237. A vicar choral of the Church of Wells, in Somerset, is a corporation sole and liable for dilapidations in the house held by him. Gleaves v. Parfitt, xcvii. 838 ; 7 C. B. N. S. 838. Semble, that he would be liable if not a corporation sole. Ibid. IV. Courts. (a) Jurisdiction. Appeal allowed from the Diocesan Court, in which the archbishop sat because of interest on part of bishop, to the court of appeal of the province. Regina v. Judge of Arches Court, xc. 315 ; 7 B. & B. 315. On an appeal to the archbishop, under s. 98, of 1 & 2 Vict. c. 106, the appel- lant is entitled to a hearing. Regina v. Archbishop of Canterbury, cii. 545 ; 1 E. & E. 545. The issuing of a commission, under 3 & 4 Vict. c. 86, s. 3. is discretionary with the bishop. Regina v. Chichester, cv. 209 ; 2 E. & E. 209.' (6) Writs of sequestration. An interim order, under 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, does not pre- vent creditor from sequestration of benefice. Parry v. Jones, lxxxvii. 339 ; 1 C. B. N. S. 339. Court refused to inquire whether a protection, issued under a Scotch seques- tration, was obtained by fraud. O'Brien v. Don. lxxxvii. 702; 1 C. B. N. S. 702. Ecclesiastical writs of levari facias bind from the time of delivery. Sturgis v. Bishop of London, xc. 542 ; 7 E. & B. 542. A judgment creditor having issued sequestration against profits of ecclesiasti- cal benefice, prior to assignee, takes priority under 24 & 25 Vict. c. 134, s. 135. Hopkins v. Clarke, cxvi. 836 ; 4 B. & S. 836. Affirmed in Ex. Ch. cxvii. 753 : 5 B. & S. 753. EJECTMENT. I. Title requisite to maintain, and IV. Forfeiture of lease. by whom maintainable. (a) Waiver of forfeiture. II. For what property ejectment will V. The declaration, not lie. VI. The proceedings. III. Notice to quit. VII. Other matters relating to eject- ment. I. Title requisite to maintain, and by whom maintainable. A mortgagee of copyhold premises cannot maintain ejectment until he has been admitted. Rayson v. Adcock, civ. 867 ; 12 C. B. N. S. 867. Grantee from crown may recover land, even though large improvements have been made by another, under acts of parliament. Vyner v. Mersey, &c., Docks, cviii. 753 ; 14 C. B. N. S. 753. II. For what property ejectment does not lie. Under 8 & 9 Vict. c. 18, s. 124, a railroad company may remain in possession six months after notice of an unknown claim to lands it is authorized to purchase, if no dispute as to title. Jolly v. W. & D. Railway Co., ci. 807; 1 B. & S. 807. III. Notice to quit. Tenant from week to week, entitled to reasonable notice. Jones v. Mills, c. 788 ; 10 C. B. N. S. 788. 193 EJECTMENT, III.- VI. A tenant, under a verbal arrangement that a charge he has on other lands of the landlord may be deducted from the rent, cannot set this up against a pur- chaser of the reversion, and his tenancy is determinable by a notice to quit. Jones v. Thomas, ci. 973 ; 1 B. & S. 973. IV. Forfeiture op lease. Covenant to use best endeavors to improve the property, a theatre, not broken by keeping it closed, though injurious. Croft v. Lumley, Ixxxv. 648 ; 5 B. & B. 648. Affirmed in House of Lords, xcvi. 1069 ; E., B. & E. 1069. Covenant not to let boxes for longer term than one year not broken by letting box to A. for year, and same box to B. for year, to commence before expiration of A.'s term. Ibid. Covenant not to encumber not broken by giving warrant of attorney to, confess judgment, where there was no defence. Ibid. Where a landlord, intending to take advantage of a forfeiture, let the premises to an undertenant in possession and received rent, it was a sufficient re-entry. Baylis v. Le Gros, xciii. 537 ; 4 C. B. N. S. 537. In order to bring ejectment, under s. 210 of the Common Law Procedure Act of 1852, there must be a half year's rent in arrear at the time of the service of the writ. Cotesworth v. Spokes, c. 103 ; 10 C. B. N. S. 103. Where lessees in arrears and insolvent, notice to sub-lessees to pay rent to lessor, and acceptance by him of rent from some of thera, do not amount to re- entry. Bishop v. Bedford Charity, cii. 697 ; 1 E. & E. 697. There can be no forfeiture for non-repair, while the tenant is evicted by land- lord. Pellatt v. Boosey, ciii. 885 ; 11 C. B. N. S. 885. Interrogatories, under the Common Law Procedure Act of 1854, not allowed where the answers would cause a forfeiture of defendant's estate. Pye v. But- terfield, cxvii. 829 ; 5 B. & S. 829. [a) Waiver of forfeiture. Where money offered as rent and landlord received it, declaring he took it for occupation reserving his right to re-enter, held a waiver. Croft v. Lumley, lxxxv. 648 ; 5 E. & B. 648. Affirmed in House of Lords, xcvi. 1069 ; E., B. & E. 1069. Though not aware, at the time, of all the instances in which covenant had been broken. Ibid. Where there is a covenant not to alter without written consent, the landlord does not waive the forfeiture by merely standing by. Perry v. Davis, xci. 769 ; 3 C. B. N. S. 769. Bringing an action for subsequent rent with a knowledge of the forfeiture, is a waiver. Dendy v. Nicholl, xciii. 376 ; 4 C. B. N. S. 376. Forfeiture for non-repair is waived, where, after making repairs himself, the landlord receives rent subsequently accruing. Pellatt v. Boosey, ciii. 885 ; 11 C.B. N. S.885. 6 y V. The declaration. Under 15 & 16 Vict. c. 76, two tenants in common may recover on a writ stat- ing that some or one of them claim to be entitled. Elliss v. Elliss, xcvi. 81 ; E., B. &E. 81. VI. The proceedings. In ejectment by heir at law, against devisee, the latter is entitled to begin. Sutton v. Sadler, xci. 87 ; 3 C. B. N. S. 87. Common Law Procedure Act does not affect the right to discharge of a pris- oner who has been detained a year for costs. Humphreys v. Franks, xci. 765 ; 3 C. B. N. S. 765. S. 124 of 8 & 9 Vict. c. 18 does not prevent ejecuu»ent against the railway com- pany, but enables it to have execution restrained. Marquis of Salisbury v. G. N. Railway Co., xciv. 174; 5 C. B. N. S. 174. Defendant may call upon plaintiff, who has obtained judgment and executed a writ of possession, to deliver a bill of costs. Baker v. Saunders, xcvii. 858 ; 7 C. B. N. S. 858. EJECTMENT, VI., VII. ELECTION. ELECTIONS, I. 197 When defendants appear to defend for all the land, and plaintiff proves title to part only, verdict under Common Law Procedure Act of 1852, 16 & 17 Vict. c. 76, should be entered for part only as to which he succeeds. Alcock v. 'Wil- shaw, cv. 633 ; 2 E. & E. 633. Interrogatories upon plaintiff, under Common Law Procedure Act 1854, will only be allowed to defendant where the affidavit discloses special circumstances requiring it. Pearson v. Turner, cxi. 157 ; 16 C. B. N. S.*lo7. Declarations of decedent of existence of missing will, giving title to plaintiff, up to within a few days of death, admissible to rebut presumption of destruction of will by testator. Whiteley v. King, cxii. 756 ; 17 0. B. N. S. 756. VII. Other matters relating to ejectment. Semble, that rule that court will stay second action until costs paid on preced- ing, confined to ejectment. Danvers v. Morgan, lxxxiv. 530; 17 C. B. 530. Common Law Procedure Act does not authorize injunction in ejectment. Bay- lis v. Legros, lxxxix. 316 ; 2 C. B. N. S. 316. The rule that tenant cannot deny landlord's title not confined to ejectment. Delaney v. Fox, lxxxix. 768 ; 2 C. B. N. S. 768. Where the plaintiff in ejectment, after verdict in his favor, assigns produce growing on the close, and upon subsequently obtaining possession, under a ha- bere facias, gives his assignee possession, the possession of the assignee relates back to the accruing of his right and he may maintain trespass. Anderson v. Radcliffe, xcvi. 806 ; E., B. & E. 806. One who has paid rent is not estopped, after a determination of the tenancy, from setting up a prior good title in himself, in ejectment by landlord. Acci- dental Death Ins. Co. v. Mackenzie, c. 870 ; 10 C. B. N. S. 870. An answer, in a chancery suit, admitting title made within twenty years by person through whom defendant claims, is a sufficient acknowledgment, within 3 & 4 Wm. 4, c. 27, s. 14. Goode v. Job, cii. 6 ; 1 E. & E. 6. Costs in ejectment, under Common Law Procedure Act 1852, 15 & 16 Vict. c. 76, ss. 186, 221, can be cast upon the party really interested. Mobbs v. Vanden- brande, cxvi. 904 ; 4 B. & S. 904. ELECTION. , Party to mercantile contract, to pay cash or give bill, refusing to do latter will be liable for goods sold and delivered. Rugg v. Weir, cxi. 471 ; 16 C. B. N. S. 471. What constitutes election to treat license as subsisting. Ward v. Day, cxvi. 337 ; 4 B. & S. 337. ELECTIONS. I. General matters. III. Appeal from decision of revising II. Qualification of voters. barrister. I. General matters. Personal expenses of candidate not within Corrupt Practices Prevention Act, 17 & 18 Vict. c. 102. Grant v. Guinness, lxxxiv. 190; 17 C. B. 190. Agent for election expenses not the agent to whom bills to be sent within month. Ibid. Payment of voter's travelling expenses not within Corrupt Practices Preven- tion Act, 17 & 18 Vict. c. 102, unless it be on condition that he vote a certain way. Cooper v. Slade, lxxxviii. 447 ; 6 E. & B. 447. 198 ELECTIONS, L, II. Appointment of an election auditor in March terminated the office of an incum- bent who held over, llegina v. Griffiths, xc. 952 ; 7 E. & B. 952. Where a candidate told his agent that it was legal to pay the travelling ex- penses of voters and thereupon the agent by circular requested a voter to vote for the candidate, adding that the railroad expenses would be paid, and the voter did so vote, receiving his expenses, it was held evidence of bribery and corrupt payment of money under 17 & 18 Vict. c. 102, s. 2. Cooper v. Slade, xcii. 1151 : 8E. &B. 1151. House of Lords reversing the Exchequer Chamber. Ibid. But one penalty could be recovered. Ibid. The revising barrister having by mistake stricken a name from the borough list instead of the county list, the court has no jurisdiction to correct the error. In re Allen, xcv. 334 ; 6 C. B. N. S. 334. Production of the stamped duplicate returned by postmaster to objector, under 6 & 7 Vict. c. 18, s. 100, is sufficient proof of transmission by post of objection signed by the objector. Lewis v. Roberts, ciii. 23 ; 11 C. B. N. S. 23. The posting and actual receipt of notice of objection to a voter by the over- seers, is a sufficient service of such notice under 6 & 7 Vict. c. 18. Smith ?'. Huggett, ciii. 55 ; 11 C. B. N. S. 55 ; Smith v. James, ciii. 62, 11 C. B. N. S. 62. The mayor of a borough not divided into wards, who, with two assessors, pre- sides at and declares the result of an election of town councillors for the borough under 5 & 6 Wm. 4, c. 76, ss. 32-35, cannot be a candidate for town councillor, because he is the returning officer ; but he may be such candidate for one ward, though returning officer for another ward, where borough is divided into wards. Regina v. Owens, cv. 86 ; 2 E. & E. 86. An intentional obstruction of the voting at an election of vestrymen, is an offence within 18 & 19 Vict. c. 120, s. 21. Buckmaster v Reynolds, cvi. 62 : 13 C. B. N. S 62. Under 15 & 16 Vict. c. 57, s. 8 (Corrupt Practices at Elections Act), statement made before commissioners privileged, except for perjury committed therein. Regina v. Leatham, cvii. 658 ; 3 E. & E. 658. But not document in existence and referred to in said statements. Ibid. Where there are two separate lists of voters in a borough, a person objecting should specify distinctly in the notice in which list of voters his name appears. Crowther v. Bradney, cix. 536 ; 15 C. B. N. S. 536. If that be not done the notice is bad. Ibid. When the body of a notice of objection contains the name of the party objected to instead of the pronoun " your," used in form number 11, sched. B., 6 & 7 Vict. c. 18, the notice is good. Force v. Floud, oix. 543 ; 15 C. B. N. S. 543. Such notice is a substantial compliance with form prescribed. Ibid. So, if the surname of party objected to is reversed in body of notice, under s. 101 of said act, it is sufficient. Ibid. The decisions of the Court of Common Pleas, under 6 & 7 Vict. c. 18, s. 66, are binding upon the revising barrister only in the case of the particular indi- vidual affected. Roberts v. Percival, cxiv. 36 ; 18 C. B. N. S. 36. A duplicate notice of objection stamped by the postmaster, under 6 & 7 Vict. c. 18, s. 100, though with the word '' copy" written on it, is sufficient evidence of proper service. Benish t>. Booth, cxiv. Ill ; 18 C. B. N. S. 111. It seems, that the other notice must be an original. Ibid. Effect of the list of registration appeals not being furnished, and practice of the court in reference thereto. See Memorandum, cxiv. 141 : 18 C. B. N. S. 141. II. Qualification or voters. The keeper of Guildhall, living in a house erected for the hall-keeper and in which he was required to reside, not entitled to be registered. Clark v. Bury St. Edmonds, lxxxvii. 23 : 1 C. B. N. S. 23. Sergeants-at-maee appointed by borough, under its charter, are not consta- bles, under 5 & 6 Wm. 4, c. 76, prohibited from voting, by 19 & 20 Vict. c. 69, sect. 9. DeBoinville v. Arnold, lxxxvii. 3 ; 1 C. B. N. S. 3. Qucere, whether, under 5 & 6 Wm. 4, c. 76, s. 32, description of voter in vot- ing papers as of a certain parish, is sufficient. Regina v. Spratley, lxxxvih. 363 ; 6 E. & B. 363. ELECTIONS, II. 1S9 If a misdescription, it is cured by sect. 142. Ibid. Thoso liable to highway rate, though not actually rated, entitled to vote for surveyor. Regina v. Kershaw, lxxxviii. 999 ; 6 E. & B. 999. Brethren of the Earl of Leicester's Hospital do not occupy as owners or ten- ants, under 2 Wm. 4, c. 45, s. 27, so as to be entitled. Heath v. Hayens, xci. 389 ; 3 C. B. N. S. 389. Beadsmen performing no duties are not promoted to an office, within the mean- ing of 2 "Win. 4, c. 45, s. 18, so as to be entitled. Faulkner v. Upper Boddington, xci. 412 ; 3 C. B. N. S. 412. Lands partly in Durham were held in trust, under a will to pay yearly sums, including 101. to each of the fellows of Lincoln College. Held, that the fel- lows were not owners of any 10/. rent out of lands in Durham, and that the es- tate came neither by devise nor by promotion to an office, within 2 Wm. 4, c. 45. "West v. Robson, xci. 422; 3 C. B. N. S. 422. QucBre, as to whether they were cestuis que trust in actual occupation. Ibid. In determining whether they held freeholds worth 40s. a year in Durham, the yearly sums must be proportioned according to the receipts from the lands in each county. Ibid. Three persons taken into partnership by the lessee of a mill, in a business re- quiring its occupation in common, the partnership furnishing funds for the rent, are entitled as tenants. Rogers v. Harvey, xciv. 3 ; 5 C. B. N. S. 3. A claimant owning a proportionate part of a fee farm rent, issuing out of lands of two owners, is entitled to vote, though only one owner be named on the list, if his proportion of the rent issuing out of that owners land be 40*. Cooper v. Ashfield, xciv. 16 ; 5 C. B. N. S. 16. If the statement of the qualification as a "fee farm rent," without naming the proportion, be a misdescription the revising barrister may amend. Ibid. Description of a qualification as " 50Z. occupier" is sufficient, and if insufficient, is amendable. Howitt v. Stephens, xciv. 30 : 5 C. B. N. S. 30. The Military Knights of Windsor have not an office and do not occupy their houses as owners or tenants so as to be entitled. Heartley v. Banks, xciv. 40 ; 5 C. B. N. S. 40. Reduction below 40s. by necessary expense of collection, disqualifies. Sher- lock v. Steward, xcvii. 21 ; 7 C. B. N. S. 21. Under 2 Wm. 4, c. 45, s. 28, occupation in succession, if the rate has been paid, is sufficient, though the name of the party does not appear. Rogers v. Lewis, xcvii. 29 ; 7 C. B. N. S. 29. Semble, that the occupier is sufficiently rated, if he r is* the person intended, though a blank is left for his name, that of the owner being alone inserted. Ibid. Assignment by the landlord during the year of occupation of a part of the reversion does not disqualify tenant. Smerdon v. Tucker, xcvii. 37 ; 7 C. B. N. S. 37. The owner of a copyhold house, who lets it in such a manner as would qualify the tenants as the occupiers of separate tenements if they were of sufficient value,is disqualified. Proctor v. Annison, xcvii. 48 ; 7 C. B. N. S. 48. Shareholders in a joint stock company have no such interest in the corpora- tion land as entitles them. Bulmer v. Norris, xcix. 19 ; 9 C. B. N. S. 19. Members of a corporation aggregate are not entitled to be registered with respect to the lands of the company. Acland v. Lewis, xcix. 32 ; 9 C. B. N. S. oji. Where a burges3 occupying premises in different wards refuses to select one in which to be enrolled, the mayor may select for him. Rerina v. Cambridge, cii. 210 ; 1 E. & E. 210. „ Under 5 & 6 Wm. 4, c. 76, s. 32, the voting paper must be signed and must indicate the property qualifying the burgess to vote. Regina v. Tart, cii. 618 : 1 E. & E 618. Occupation of a house as a lay clerk does not make occupant either tenant or owner, under 2 Wm. 4, c. 45, s. 27. Bridgewater v. Durant, ciii. 7:11 C. B. N. S. 7. The occupation of part of a house, without actual severance from the rest, does not constitute the tenancy of a house, under 2 Wm. 4, c. 45, s. 27. Cook v. Humber, ciii. 33 ; 11 C. B. N. S. 33. 200 ELECTIONS, II. The occupation of " offices" not actually severed from rest of premises, is not the occupation of a house so as to confer a right to vote, under 2 Wm. 4, c. 45, s. 27. Wilson v. Roberts, ciii. 50 ; 11 C. B. N. S. 50. ' Occupants of hospital rooms during good behavior, who can neither let nor assign, nor permit another to occupy with them, have not such a property in the rooms as to entitle them to vote. Freeman v. Gainsford, ciii. 68 ; 11 C. B. N. S. 68. A parish clerk is not entitled to vote, in respect of his office. Bushell v. Eastes, ciii. 106 ; 11 C. B. N. S. 106. A portion of an ancient fee, payable to a parish clerk on the opening of every grave, is not a payment issuing out of or charged on any land so as to enable him to vote. Ibid. An annual stipend from the dean and chapter of Canterbury, paid out of the chapter revenues, which were derived from lands, is not an interest arising out of land so as to entitle the recipient to vote. Hall v. Lewis, ciii. 115; 11 C. B. N.S.I 15. Act. of 7 Wm. 4 and 1 Vict. c. 78, s. 14, requires that voting paper of coun- cillor entitled to vote for alderman, shall contain christian name and surname of voter. Regina v. Bradley, cvii. 634 ; 3 E. & E. 034. A well-known contraction of christian name held sufficient, as "Wm." and "Willm." for William. Ibid. Interest on mortgage,' and monthly payments to building associations secured thereby, are charges to be deducted in ascertaining annual value. Robinson v. Dunkley, cix. 478 ; 15 C. B. N. S. 478. _ But when the clear annual value, taking into consideration the amount paid in monthly instalments, is over 40*., the holder is entitled to vote. Ibid. Freemen of borough not disqualified as recipient of alms, under 2 Wm. 4, c. 45, s. 36, by reason of belonging to a charitable hospital, having a house assigned to each to live in. Smith v. ifall, cix. 485 ; 15 C. B. N. S. 485. The presumption is in favor of freemen not being disqualified as voters. Ibid. If an occupation of part of a house be independent and rent severed, it is sufficient, under 2 Wm. 4, c. 45, s. 27, to entitle holder to a vote. Henrette v. Booth, cix. 500 ; 15 C. B. N. S. 500. What constitutes such an independent occupation. Ibid. When service on assistant overseer of notice of claim to be registered, under s. 30 of Reform Act, is good. Caunter v. Addams, cix. 512 ; 15 C. B. N. S. 512. Ownership of shares in joint stock company, owning land vested in trustees, registered provisionally under 7 & 8 Vict. c. 110, s. 58, is not such interest as to entitle owner to registration. Bennett v. Blain, cix. 518 ; 15 C. B. N. S. 518. Property of a permanent nature for life, above 101. yearly value, not freehold, and it seems not copyhold, but in the nature of copyhold, will, under 2 Wm. 4, c. 45, s. 19, entitle tenant to registration. Garbutt v. Trevor, cix. 550 : 15 C. B. N. S. 550. On objection to a voter, if the objector describes himself as on the list of voters for the borough of Devonport and township of Stonehouse, the lists being posted in that township, it is sufficient within 6 & 7 Vict. c. 18, schedules 10 and 11. Oram v. Cole, cxiv. 1 ; 18 C. B. N. S. 1. Such objector must accurately define the particular list, in order that it may be seen whether the objector is real or not. Ibid. A voter struck from the list by one revising barrister cannot be restored by the other in the absence of objector. Blain v. Pilkington, cxiv. 6 ; 18 C. B. N. S. 6. J . A lineal descendant of one who was a burgess or freeman before March let 1831, has the right of voting under 2 Wm. 4, c. 45, s. 32. Gaydon v. Bencraft, cxiv. 11 ; 18 0. B. N. S. 11. Under Reform Act a person must have a freehold legal or equitable to entitle him to vote. Steele v. Bosworth, cxiv. 22; 18 C. B. N. S. 22. An inmate of hospital, founded for fourteen poor men, has not such an equit- able estate as to entitle him to vote. Ibid. Certain bedesmen of a hospital, founded before 39 Eliz. c. 5, holding the pro- perty absolutely and beneficially, were held entitled to vote, as having an equit- able freehold. Roberts v. Percival, cxiv. 36 : 18 C. B. N. S. 36. ELECTIONS, II., III. 201 And it made no difference that they were liable to expulsion for certain offences, the power never having appeared to have been exercised. Ibid. A parish clerk, holding by virtue of his office sufficient freehold, is entitled to be registered. Roberts v. Drewitt, cxiv. 48 ; 18 C. B. N. S. 48. The non-payment of a rate, where an assistant overseer joined in the levy and it was allowed by two justices, published and not appealed against, will disqualify a person from voting. Baker v. Locke, cxiv. 52 ; 18 C. B. N. S. 52. Under 2 Wm. 4, c. 45, s. 27, a party need not have been of full age during the whole of prescribed period for occupying a house, to entitle him to vote. Powell v. Bradley, cxiv. 65 ; 18 C. B. N. S. 65. No person is entitled to vote till of full age, under 2 Wm. 4, c. 45, s. 27. Ibid. Nor to be registered under 6 & 7 Vict. c. 18, ss. 40, 81. Ibid. A man who has been imprisoned in gaol for a criminal offence during a part of the time, has not resided for six months in a borough, under 2 Wm. 4, c. 45, s. 27, so as to entitle him to be placed on the list of voters. Powell v. Guest, cxiv. 72 ; 18 C. B. N. S. 72. It seems, that where he was simply imprisoned under a ca. sa., or could purge the offence by payment of a fine, it would be different. Ibid. What will be a sufficient rating to justify revising barrister placing a name on the list of voters. Powell v. Jones, cxiv. 83 ; 18 C. B. N. S. 83. A grant of a rent-charge by a conveyance to uses, is such an " actual posses- sion" of the same, as will entitle a man to be placed on the list after six months, under 2 Wm. 4, c. 45, s. 26. Henlis v. Blain, cxiv. 90 ; 18 C. B. N. S. 90.- Persons receiving conveyance of lands adjacent to bridge from commissioners authorized under local act's to assign tolls, income, &c, have not such title as to justify registration. Teper v. Nicholls, cxiv. 121 ; 18 C. B. N. S. 121. Where a man is sole tenant, at a rent of 401. and joint tenant at a rent of 64Z., he cannot add them together so as to entitle him to be registered as a voter for the county as having 50Z. Smith v. Foreman, cxiv. 144; 18 C. B. N. S. 144. A tenant must have either rent as sole tenant, of 50Z., under 2 Wm. 4, c. 45, s. 20 or his share as joint tenant, under 6 & 7 Vict. c. 18, s. 73, must amount to 501. to entitle him to be registered as a voter for the county. Ibid. Where a rate had been levied upon the occupier of premises in April and re- mained unpaid, and in August he was succeeded by another, upon whom a rate was levied and paid, the latter is entitled to be registered, under 2 Wm. 4, c. 48, B . 27. Flatcher v. Boodle, cxiv. 152 ; 18 C. B. N. S. 152. The fact that under 17 Geo. 2, c. 38, s. 12, the pro rata proportion of the rate was demandable, made no difference, no demand for it having been made. Ibid. Williams, J., dissents. A wooden structure, erected by a tenant of land, who was a gardener, with boarded sides and thatched roof, supported by wooden posts and used for storing potatoes, is a " building," within 2 Wm. 4, c. 45, s. 27. Powell v. Armer, cxiv. 168 ; 18 C. B. N. S. 168. A finding of the revising barrister, that this building was occupied by the les- see as tenant, will not be disturbed, as it will be presumed to belong to the land- lord. Ibid. , . . It seems, that a pig-sty is not a " building," within said section. Ibid. A wooden structure, erected by electioneering agent on land occupied by a lessee, with four boarded sides, a boarded roof and supported by wooden posts, is not a "building," within 2 Wm. 4, c. 45, s. 27. Powell v. Boraston, cxiv. 175; 18 C.B.N. S. 175. Assuming it to be a building, the lessee did not occupy it as tenant. Ibid. An interest in a music hall whose net profits the trustees were to divide among the shareholders in proportion to their respective shares, is not such equitable interest as to entitle them to registration. Freeman v. Gainsford, cxiv. 185 ; 18 C. B. N. S. 185. Where a local act substitutes the owners of small tenements for the occupiers with respect to rates, but reserves to the occupiers their franchises, the latter may vote for guardians of the poor. Kegina v. Hampton, cxviii. 923 ; 6 B. & S. 923. III. Appeal from decision or revising barrister. Notice of objection sent by post to voter at his place of abode, as described in 202 ELECTIONS, III. list, enough without naming township at the head of list. Flint v. Sharp, lxxxiv. 281 ; 17 0. B. 281. Notice of objection, sent by post to overseers, without naming county, if re- ceived, sufficient. Jones v. Innous, lxxxiv. 290 ; 17 0. B. 290. Where overseers act upon a notice of objection it is assumed that they re- ceived it in due time. Godsell v. Innous, lxxxiv. 295 ; 17 C. B. 295. Qucere, could they waive irregularity of service. Ibid. One who holds in fee land which by custom of manor is conveyed by ordinary assurance without license of lord, enrolment or surrender, but who at purchase acknowledges to hold of lord by free deed, fealty, suit of court, yearly rent, and pays relief, is a freeholder. Passingham v. Pitty, lxxxiv. 299 ; 17 C. B. 299. S. 13, of 6 & 7 Vict. c. 18, requiring lists of voters to be signed by overseers, is directory only. Morgan v. Parry, lxxxiv. 334 ; 17 C. B. 334. Purchaser of freehold having paid consideration, but not in actual possession, or in receipt of profits to whom conveyance not made, not entitled to vote. An- clay v. Lewis, lxxxiv. 316 : 17 C. B. 316. Semble, that where decision is against franchise court will exercise their dis- cretion in regard to costs, but where against appellant, in favor of franchise, costs of course. Clark v. Bury St. Edmunds, lxxxvii. 23 ; 1 C. B. N. S. 23. Notice of objection properly posted, but delayed in the office, good. Hornsby v. Robson, lxxxvii. 63 ; 1 0. B. N. S. 63. Notice of objection sent by post good, though received by postmaster outside of the usual hours. Hanaford v. Whiteway, lxxxvii. 53 ; 10. B. N. S. 53 ; Pad- don v. Whiteway, lxxxvii. 62 ; 1 C. B. N. S. 62. Appeals cannot be consolidated where the cases depend on a different state of facts. Robson v. Brown, lxxxvii. 34 ; 10. B. N. S. 34. Notice of objection, to borough vote sent by post, need not, on the face of it, show voter's place of abode. Barclay v. Parrott, lxxxvii. 49 ; 1 C. B. N. S. 49. It is not competent for the revising barrister to inquire into the sufficiency of notice of claim, under 6 & 7 Vict. c. 18, s. 4. Davies v. Hopkins, xci. 376 ; 3 C. B. N. S. 376. Qucere, as to whether the notice requires personal signature. Ibid. Qucere, whether on the argument respondent can rely on objections overruled, from which no appeal was taken. West v. Robson, xci. 422 ; 3 C. B. N. S. 422. The '' place of abode" of the objector, under s. 7 of 6 & 7 Vict. c. 18, means the place of abode at the time of signing the notice, and if another place be named the misdescription is not cured by s. 101. Melbourne v. Greenfield, xcvii. 1 ; 7 C. B. N. S. 1. The clerk of the peace may correct an error in the register even after some of the printed copies have been sold. Brumfitt v. Bremner, xcix. 1 : 9 C. B. N. S. 1. Sect. 47 of 6 & 7 Vict. c. 18, requiring the registry to be delivered to the sheriff on or before the last day ot November, is directory only. Ibid. When decision of the revising barrister may be correct, it will not be reversed. Collier v. King, ciii. 14 ; U C. B. N. S. 14. Appeal, under 6 & 7 Viet. c. 18, g. 62, must be within ten days, if possible. Luckett v. Gilder et al., ciii. 1 ; 11 0. B. N. S. 1. The posting and actual receipt of notice of objection to a voter by overseer, is a sufficient service ot such notice, under 6 & 7 Vict. c. 18. Smith v. Iluggett, ciii. 55 ; 11 C. B. N. S. 55 ; Smith v. James, ciii. 62 ; 11 C. B. N. S. 62. Where an objector resides in one house and has the right to reside at another, and actually does sleep there occasionally, the decision of the revising barrister that the latter is not his Irue place of abode will not be reversed. Curtis v. Blight, ciii. 95 ; 11 C. B. N'. S. 95. The respondent will not be allowed costs in an appeal from the decision of the revising barrister, where there is a reasonable ground of doubt in regard to the construction of the statute. Collier v. King, ciii. 478 ; 11 C. B. N. S. 478. A notice describing the objector as being on the list of voters for the parish, is good, though there be both a new qualification list and a reserved-right list. Samuel v. Hitchmough, cvi. 3 ; 13 C. B. N. S. 3. Where the nature of the qualification is stated to be " tenant," the revising barrister may amend by changing it to " farm as occupying tenant." Birks v. Allison, cvi. 12; 13 C. B. N. S. 12. The revising barrister may change the description of the property as situate ELECTIONS, III. 203 in " Brook Lane" to " Brook Lane and elsewhere,'' to accord with the facts. Birks v. Allison, cvi. 24 ; 13 C. B. N. S. 2-1. Qucere, whether obtaining medical assistance "on loan," under 4 & 5 Win. 4, c. 76, is receiving relief within 2 Wm. 4, c. 45, s. 36. Devenish v. Digbv, cvi. 28; 13 C. B. N. S. 28. Notice of objection good, though the surname in the signature so illegible that an ordinary person unfamiliar with it could not by ordinary diligence decipher it. Trotter v. Walker, cvi. 30 ; 13 0. B. N. S. 30. Same v. Same, cvi. 40 ; 13 C. B. N. S. 40. Sedgwick v. Trevor, cvi. 42 ; 13 C. B. N. S. 42. Support by the parish of the father of the voter, whom the voter was able to support, is not parochial relief to the voter, under 2 Wm. 4, o. 45, s. 36. Trotter v. Trevor, evi. 48 ; 13 C. B. N. S. 48. Decision of revising barrister as to requisite qualifications of objector affirmed with costs. Oram v. Cole, cxiv. 1 ; 18 C. B. N. S. 1. Decision of one revising barrister, striking name of voter from list, cannot be reviewed by the other in the absence of objector. Blain v. Pilkington, cxiv. 6 ; 18 C. B. N. S. 6. Quxre, whether a decision of revising barrister can be reviewed after final hearing and determination. Ibid. It seems, that when there are two, one cannot review the decision of the other. Ibid. Decision of revising barrister, that lineal descendant of one who was a bur- gess or freeman, prior to March 1st 1831, was not entitled to be registered, re- versed. Gaydon v. Bencraft, cxiv. 11 ; 18 C. B. N. S. 11. The right of voting as the linc-l descendant of one who was a burgess or free- man before March 1st 1831, is continued to grandson, though father was not entitled to be admitted until after that time. Ibid. Name of inmate of hospital, founded for fourteen poor, properly struck from list as not having estate to entitle him to vote. Steele v. Bosworth, cxiv. 22 : 18 C. B. N. S. 22. Costs of appeal generally allowed when the decision of the revising barrister is affirmed, though discretion will be exercised under extraordinary circumstances. Powell v. Bradley, cxiv. 65 ; 18 C. B. N. S. 65. Where a householder is sufficiently rated, a decision of the revising barrister that a general payment was on account of the rate, will not be interfered with. Powell v. Jones, cxiv. 83 ; 18 C. B. N. S. 83. A revising barrister's decision striking off the name of one from the list, in possession of rent charge for six months, under conveyances to uses, reversed. Heelis v. Blain, cxiv. 90; 18 C. B. N. S. 90. Decision of revising barrister, that a joint tenant's share of rent could be added to his rent, as sole tenant, to qualify him as a voter for the county, reversed. Smith v. Foreman, cxiv. 144 ; 18 C. B. N. S. 144. Every presumption will be made in favor of the decision of the revising bar- rister. Powell v. Farmer, cxiv. 168 ; 18 C. B. N. S. 168. Where facts are sufficiently set out to show finding of revising barrister to be erroneous, he will be reversed. Powell v. Boraston, cxiv. 175; 18 C. B. N. S. 175. Unless an appeal has been completed by a compliance with the requirements of 6 & 7 Vict. c. 18, it will be struck from the list. Scott v. Durant, cxiv. 205 ; 18 C. B. N. S. 205. It seems, that there can be a waiver of such compliance by the consent of the other party. Ibid. 204 ELEGIT. ERRORS AND APPEALS, L, II. ELEGIT. On inquisition, proof of possession or receipt of rent prima facie evidence of title to lands. Barnes v. Harding, lxxxvii. 568 ; 1 C. B. N. S. 568. Where the jury, despite of such evidence, found that party had no lands, the finding was set aside. Ibid. ERRORS AND APPEALS. I. On what judgment or proceeding III. The assignment of Errors, a writ of Error lies. IV. The judgment in Error. II. Practice and proceedings upon a V. Writ of Error coram nobis. writ of Error. VI. Appeal. I. On what judgment or proceeding a writ or error lies. Not under Common Law Procedure Act in quo warranto. Kegina v. Seale, lxxxv. 1 ; 5 E. & B. 1. Semble, that outlaw should appear in person but appearance by attorney not subject of error. Solomon v. Graham, lxxxv. 309 ; 5 E. & B. 309. Further, after outlaw has been treated as if in court, and issue of law joined, judgment in error will not be given on ground of improper appearance. Ibid. Court refused a writ of error and a certiorari upon a conviction of a criminal offence by a colonial court, there being no fiat from the attorney general. Ex parte Lees, xcvi. 828 ; E., B. & E. 828. Administrator de bonis non, may bring error on a judgment against the admin- istrator and commence by writ of scire facias ad audiendum errores. Curlewis v. Earl of Mornington, xcvi. 1107 ; E., B. & E. 1107. Error cannot be brought to judgment of court on a special case stated by arbi- trator for opinion of court, under 16 & 17 Vict. c. 125, s. 5. Gumm v. Fowler, cv. 890 ; 2 E. & E. 890. Error in fact does not lie for irregularities, as in not summoning special jurors, &c. Irwin v. Sir G. Grey, cxv. 585 ; 19 C. B. N. S. 585. Such assignments of error would contradict the record, which can never be done. Ibid. And they can only be taken advantage of on motion. Ibid. It is no ground of error that the verdict was only as to one of two counts in an indictment. Latham v. The Queen, cxvii. 635 ; 5 B. & S. 635. The exercise of the discretion of a judge, in the discharge of a jury, in a trial for felony, because of failure to agree, is not reviewable. Winsor ». The Queen, cxviii. 143; 6B. & S. 143. Error lies on a judgment in an interpleader issue. Gumm v. Tyrie, cxviii. 298 ; 6 B. & S. 298. II. Practice and proceedings on a writ of error. Court of error may amend the record. Walker v. Bartlett, lxxxvi. 845 ; 18 C. B. 845. Execution not allowed on ground that assignments of error are frivolous, un- less they are altogether incapable of being sustained. Hall v. Conder, lxxxix. 22 ; 2 C. B. N. S. 22. Plaintiff in error depositing, by agreement, consols, in lieu of bail, to abide the further order of the court, is entitled to them on reversal of the judg- ment in Exchequer Chamber, though an appeal pending. Castrique v. Imrie, c. 340 ; 10 C. B. N. S. 340. An appeal lies from county court, though not presented to the judge until more than twelve days after judgment pronounced. Hacking v. Lee, cv. 906 ; 2 E. & E. 906. ERRORS AND APPEALS, II.— VI. 205 The court or a judge has a discretion to dispense with bail on appeal. Bcvan v. "Whitmore, cix. 433 ; 15 C. B. N. S. 433. _ Under Common Law Procedure Act, 17 & 18 Vict. c. 125, s. 38, discretion of judge, who tried the cause, to dispense with bail on appeal will not be interfered with. Turquand v. Moss, cxii. 15 ; 17 C. B. N. S. 15., III. The assignment of errors. In a writ of error coram nobis to reverse outlawry, it is sufficient for plaintiff in error to appear in person by writ to assign error. He can appear by attorney in the subsequent stages of the proceeding. Smith v. Bromley, cv. 581 ; 2 E. & E. 581. IV. The judgment in error. Judgment in error stricken from the record where the writ had been subse- quently quashed by court of competent jurisdiction. Alleyne v. The Queen, lxxxv. 399 ; 5 E. & B. 399. V. Writ op error coram nobis. Judgment of outlawry on a writ of error coram nobis is reversible, as of right, when defendant was out of jurisdiction when the exigeat issued. Bromley v. Smith, cv. 584 ; 2 E. & E. 584. VI. Appeal Quarter Sessions cannot dismiss appeal from summary conviction because of want of notice to other side under rule. In re Blues, lxxxv. 291 ; 5 E. & B. 291. Should have allowed appeal to be entered and respited. Ibid. Semble, that though act does not prescribe it, notice should always be given. Ibid. Court may estreat recognisance on appeal at subsequent session after demand for payment made. Regina v. Isle of Ely, lxxxv. 489 ; 5 E. & B. 489. Order for costs need not direct them to be paid to clerk. Ibid. Where judge of county court ruled that there was evidence on part of plain- tiff to go to j ury , and defendant then offered testimony, he is not precluded there- by from appealing from such ruling. G. W. Railway Co. v. Rimell, lxxxvi. 575 ; 18 C. B. 575. Also reported xcv. 917 ;' 6 0. B. N. S. 917. Under local act allowing appeals, none from order of commissioners to pay ex- penses by one who moved resolution at meeting of rate payers authorizing them. Harrup v. Bayley, lxxxviii. 218 ; 6 E. & B. 218. Where judgment reversed in Exchequer Chamber, appellant does not get costs of appeal. Young v. Moeller, lxxxviii. 681 ; 6 E. & B. 681. Under 12 & 13 Vict. c. 92, there is no appeal except where the penalty ad- judged exceeds 11. exclusive of costs. Regina v. Justices of Warwickshire, lxxxviii. 837 ; 6 E. & B. 837. Quarter Sessions cannot dismiss appeal from the poor rate for want of notice, but must continue it. Regina v. Eyre, lxxxviii. 992 ; 6 E. & B. 992. A case involving no question of law having to be restated because of confusion on part of county judge, the appeal was dismissed without costs. L. & N. W. Railway Co. o. Grace, lxxxix. 555 ; 2 C. B. N. S. 555. Overseers of the poor have appeal from order of settlement though the guar- dians have also appealed. Regina v. Justices of West Riding, xc. 14 ; 7 E. & B. 14. Appeal allowed from the Diocesan Court, in which the archbishop sat, because of interest on part of bishop, to the Court of Appeal of the province. Regina v. Judge of Arches Court, xc. 315 ; 7 E. & B. 315. No costs on an appeal by an excise officer in a suit for penalty, when appeal dismissed. Regina v. Beadle, xc. 492 ; 7 E. & B. 492. The sessions being ordered to hear and determine a certain appeal, and the appellant then giving a notice changed by the omission of a schedule of parties and certain objections, it was properly dismissed. Regina v. Eyre, xc. 619 ; 7 E. & B. 619. There being reasonable notice of an appeal from a rate, the court was not 206 ERRORS AND APPEALS, VI. bound to respite it on application of appellant. Regina v. Eyre, xc. 609 ; 7 B. & B. 609. Where an appeal from county court was stated at unnecessary length by fault of appellant, court,*on reversing, refused costs. Evans v. Mathias, xc. 590 : 7 E. & B. 590. Appeal from an order of removal of pauper must be tried or entered and res- pited at the next practicable sessions after the service of the order. Regina v. Justices of Peterborough, xc. 643 ; 7 E. & B. 643. There may be an appeal to the House of Lords where the Court of Exchequer Chamber is equally divided upon an appeal from the Common Pleas. Hickman ». Cox, xci. 523 ; 3 C. B. N. S. 523. An order under 18 & 19 Vict. c. 121, to abate and discontinue a nuisance and to do such works and acts as are necessary, is not subject to appeal. Ex parte Mayor of Liverpool, xcii. 537 ; 8 E. & B. 537. No appeal by a surveyor against the allowance of his accounts at the highway sessions. Regina v. Justices of Leicestershire, xcii. 557 ; 8 E. & B. 557. Under sect. 88 of 5 & 6 Wm. 4, c. 50, an appeal cannot be brought unless ten days' notice be given. Regina v. Justices of Lancashire, xcii. 563 ; 8 E. & B. 563. If the appeal has been received without notice it cannot be respited. Ibid. Notice given before an adjourned sessions, insufficient. Ibid. No appeal against refusal of judges to grant a billiard license. Ex parte Chamberlaine, xcii. 644 ; 8 E. & B. 644. General rules as to appeals, xcii. 646 ; 8 E. & B. 646. An order under 3 & 4 Vict. c. 54, being served eighteen days before a sessions, and notice of appeal given after the sessions nineteen days from service, the appeal is triable at the following sessions. Regina v. Justices of Glamorgan- shire, xcii. 694 ; 8 E : & B. 694. The Quarter Sessions may on dismissing an appeal for want of jurisdiction, award costs under 12 & 13 Vict. c. 45, s. 5. Regina v. Padwick, xcii. 704 ; 8 E. & B. 704. Right of appeal not lost because an order of confirmation of the Quarter Sessions is quashed on account of interest. Ex parte Hopkins, xcii. 1094 ; 8 E. & B. 1094. After a county court judge has signed a case agreed to on appeal by the respective attorneys he cannot add a statement. Warner v. Riddiford, xciii. 180 ; 4 0. B.N. S. 180. Application to the justices to state a case for appeal, under 20 & 21 Vict. c. 43, s. 2, must be made within three days, though the last be Sunday. Peacock v. The Queen, xciii. 264 ; 4 C. B. N. S. 264. Application to send back, for amendment, a. case stated on appeal from jus- tices, may be made before argument. Yorkshire Tire & Axle Co. v. Rotherham Board of Health, xciii. 362 ; 4 C. B. N. S. 362. A rule for costs, under 15 & 16 Vict. c. 54, s. 4, after the lapse of a term from the refusal of a judge to certify that the case, wherein plaintiff recovered 40s., was a proper one for the superior court, is an appeal, and therefore too late. Craske v. Smith, xciii. 446 ; 4 C. B. N. S. 446. In appeals, under 20 & 21 Vict. c. 43, the appellant in the Common Pleas begins. Gardner v. Whitford, xciii. 665 ; 4 C. B. N. S. 665. Notice of appeal having been given, but the judge having died before a, case could be settled, the court refused a prohibition to restrain the new judge from proceeding, and also a certiorari. McCallum v. Cookson, xciv. 498 : 5 C. B. N. S. 498. Order, under 1 & 2 Vict. c. 110, s. 14, confirmed, on the ground that otherwise there would be no appeal. Nicholls v. Kosewarne, xcv. 480 ; 6 C. B. N. S. 480. An appeal lies to the Quarter Sessions from an order of the justices, under 5 & 6 Wm. 4, c. 50, s. 23, that a dedicated highway is not of sufficient utility. Regina v. Justices of Derbyshire, xcvi. 69 ; E., B. & E. 69. Where an appeal is determined by interested magistrates, the proper course is to quash on certiorari. In re Hopkins, xcvi. 101 ; E., B. & E. 101. No appeal lies from a taxation of costs by the county court, under 19 & 20 Vict. c._108, s. 34. Carr v. Stringer, xcvi. 123 ; E., B. & E. 123. Applications for mandamus to justices to enter continuances and hear appeals, ERRORS AND APPEALS, VI. 207 shall be made not later than the term following the sessions at which the refusal was made, unless the delay be accounted for. General Rule, xcvi. 253 ; E., B. & E. 253. On appeal from the county court, security must be given within ten days. Stone v. Dean, xcvi. 504; E., B. & E. 504. Appellant against an order of removal may take the full number of days, under 11 & 12 Vict. c. 31, s. 9, and then, if there is time, he should give notice of trial for the next sessions : if not, should enter and respite appeal. Regina v. West Riding, xcvi. 713 ; E., B. & E. 713. Court will not hear an appeal from a magistrate's decision, under 18 & 19 Vict. c. 122, that a certain row of houses formed a street. Newman v. Baker, xcviii. 200 ; 8 C. B. N. S. 200. Refusal of justices to order the payment of money under a rate, is ground of appeal, under 20 & 21 Vict. c. 43. London Union v. Acocks, xcviii. 760 ; 8 C. B. N. S. 760. Court refused to decide an appeal made in pursuance of 20 & 21 Vict. c. 43, neither party appearing. Walters v. Williams, xcix. 179 ; 9 C. B. N. S. 179. The person making complaint on behalf of the corporation is properly respond- ent in an appeal on an information, under 20 & 21 Vict. c. 43, s. 2. Roberts v. Preston, xcix. 208 ; 9 C. B. N. S. 208. The want of a specific order for costs, under 12 & 13 Vict. c. 45, may be sup- plied by a practice known to both parties, based on a standing order, that costs should follow the event. Freeman v. Read, xcix. 301 ; 9 C. B. N. S. 301. And by consent, they may be taxed after the end of the sessions. Ibid. Refusal of justices to disallow an item in accounts of surveyor of highways, is ground for appeal, under 20 & 21 Vict. c. 43. Townsend v. Read, c. 308 ; 10 C. B. N. S. 308. An appeal from a summary conviction, under 39 & 40 Geo. 3, c. 89, s. 18, does not entitle defendant to discharge from imprisonment. Regina v. Willmott, oi. 27 ; 1 B. & S. 27. The sessions may adjourn an appeal, even after hearing commenced and evi- dence taken. Regina v. Cambridge Union, ci. 61 ; 1 B. & S. 61. Where conviction quashed on appeal, under 20 & 21 Vict. c. 43, prosecutor pays the costs. Venables v. Hardman, cii. 79 ; 1 E. & E. 79. Notice of appeal, under sect. 22 of 18 & 19 Vict. c. 121, must be given within fourteen days after notice of assessment. Regina v. Middleton, cii. 98 ; 1 E. & E. 98. Where after an appeal has been called and counsel has commenced to state his case, a continuance is granted, new grounds of appeal may be delivered fourteen days before the next session. Regina ». Kendal, cii. 492 ; 1 E. & E. 492. On an appeal to the Archbishop, under sect. 98 of 1 & 2 Vict. c. 106, the ap- ?ellant is entitled to a hearing. Regina v. Archbishop of Canterbury, cii. 545 ; E. & E. 545. On confirmation ol a conviction on an appeal, under 20 & 21 Vict. c. 43, the crown is entitled to costs. Moore v. Smith, cii. 597 ; 1 E. & E. 597. A question not raised before the justices, cannot be considered on appeal from a conviction. Purkis v. Huxtable, cii. 780 ; 1 E. & E. 780. The decision of the secretary of state on appeal as to the validity of a vote, under 21 & 22 Vict. c. 98, s. 18, is conclusive. Ex parte Bird, cii. 931 ; 1 E. & E. 931. Under sect. 34 of the Common Law Procedure Act of 1854, an appeal lies to the decision of the court upon a rule obtained pursuant to leave reserved at the trial before an undersheriff. Levy v. Green, cii. 969 ; 1 E. & E. 969. The notice under s. 62 of 6 & 7 Vict. c. 18, to respondent of appellant's inten- tion to prosecute the appeal, must, if possible, be served ten days before the first of the days appointed for hearing appeals. Luckett v. Gilder, ciii. 1 ; 11 C. B. N. S. 1. A writ of prohibition may be granted pending an appeal to privy council. White v. Steele, civ. 383 ; 12 C. B. N. S. 383. An appeal to sessions may be adjourned where there is no notice of trial, though there is sufficient time to give such notice. Regina v. Skircoat, cv. 186; 2 E. & E. 186. 208 ERRORS AND APPEALS, VI. An appeal does not lie, under 20 & 21 Vict, c. 43, upon refusal of justices to issue a summons to enforce payment of a highway rate on the ground that the land assessed was not liable to such rate. Walker v. The Great Western Rail- way Co., cv. 325 ; 2 E. & E. 325. An appeal from an order of the justices, directing the payment of a sewer rate, lies only to the Quarter Sessions, under the Public .Health Act, 11 & 12 Vict. c. 63. Regina v. Gloucestershire, cv. 420 ; 2 E. & E. 420. In such case, the justices are not bound to state a case for the opinion of the Queen's Bench, under 21 & 22 Vict. c. 43. Ibid. Costs, on appeals from the county courts, are always awarded the successful party, unless under very exceptional circumstances. Schroder v. Ward, cvi. 410 ; 13 C. B. N. S. 410. Powers conferred upon officer of court by statute, generally subject of appeal. Metropolitan Railway Co. v. Turnham, cviii. 212; 14 C. B. N. S. 212. Costs on appeal from justices, under 20 & 21 Vict. c. 43. Glover v. Booth, ex. 807 ; 2 B. & S. 807. After appeal entered, but subsequently struck out, under 5 & 6 Wm. 4, c. 50, s. 90, costs of appeal will be given to appellant. Regina v. Justices of West Riding, &c, ex. 811 ; 2 B. & S. 811. No deposit in proper time, of costs of appeal from county court, or in case of defendant, of amount of judgment, under 13 & 14 Vict. c. 61, s. 14, is fatal. Norris v. Carrington, cxi. 10 ; 16 C. B. N. S. 10. Under Act 1858, s. 65 (local government act), secretary of state's finding, upon appeal from local board of health, for costs of erecting sewers, &e., is final and conclusive. Wallington v. Willes, cxi. 797 ; 16 C. B. N. S. 797. In case stated, under 20 & 21 Vict. c. 43, where there was evidence set out that the lord'of the manor was in possession, justices' finding not subject to review. Cornwell v. Sanders, cxiii. 206 ; 3 B. & S. 206. To make appeal from order of removal good, under 11 & 12 Vict. c. 31, s. 3, the application for copy of deposition must be to clerk of justices. Regina v. St. Alkmund, cxiii. 347 ; 3 B. & S. 347. Notice of appeal from such order must be clear and explicit. Ibid. In order of removal, under 9 & 10 Vict. c. 66, s. 4, stating permanent disability by sickness or accident, no appeal will lie to Quarter Sessions. Regina v. Whit- tlesey, cxiii. 432 ; 3 B. & S. 432. Leave to appeal, with power to amend in court of error, in case of quasi estop- pel in pais by acceptance of bill, granted. Ashpitel v. Morgan, cxiii. 474 ; 3 B. & S. 474. Notice of appeal from summary conviction of magistrate, under 20 & 21 Vict. c. 43, s. 2, must be transmitted within three days. Ranks v. Goodwin, cxiii. 548 ; 3 B. & S. 548. What is insufficient transmission under the act. Ibid. In appeal to Quarter Sessions, under 7 & 8 Vict. c. 101, s. 4, time of appeal dates from adjudication. Ex parte Johnson, cxiii. 947 ; 3 B. & S. 947. Qucere, as to necessary requisites of appeal. Ibid. Appeal upon case stated, under Common Law Procedure Act, 1854. Lyle v. Richards, cxiii. 962 ; 3 B. & S. 962. Where appeal is in discretion of court, it will be refused in a case properly for the jury. Foy v. Railway Co., cxiv. 225 ; 18 C. B. N. S. 225. No appeal lies from county court from order, in proceedings under Industrial and Provident Societies' Act, 25 & 26 Vict. c. 87, s. 17. Henderson v. Bamber, cxv. 540; 19 C. B. N. S. 540. On appeal from an order of justices directing some roads to be diverted and others to be closed, the court may confirm as to some and quash as to others. Regina v. Midgley, cxvii. 621 ; 5 B. & S. 621. Upon an appeal from a conviction under 5 Geo. 4, c. 83, s. 4, being quashed, costs may be awarded against the prosecutor, not the justices. Regina v. Purdey, cxvii. 909 ; 5 B. & S. 909. Where, on appeal, the Quarter Sessions orders a case to be referred with con- sent of parties, under 12 & 13 Vict. c. 45, s. 13, the terms are finally settled, including the question of costs. Regina v. West Riding, cxviii. 531 ; 6 B. & S. 531. A rule to reduce damages gives a right of appeal. Hodgman v. West Midland Railway Co., cxvii. 173 ; 5 B. & S. 173. EEEOES AND APPEALS, VI. ESTATE, I.— IV. 209 Affirmed in Exchequer Chamber, cxviii. 560 ; 6 B. & S. 560. There is no appeal from an order of the justices for the maintenance of a pauper lunatic, made under sect. 96 of 10 & 17 Vict. c. 97. ltegina v. North- ampton, cxviii. 653 ; 6 B. & S. 653. ESTATE. I. General matters. IV. Estate tail. II. Vesting of Estates. (a) Estate tail under will. III. Estate in fee simple. V. Estate for life. VI. Other Estates. I. General matters. A lease reserving to the lessor a right to make a covered sewer on the land to convey away his drainage, gives him an exclusive right to its use. Lee v. Ste- venson, xcvi. 512 ; E., B. & E. 512. Shareholder in joint stock company has no estate in land owned by company. Bennett v. Blain, cix. 518 ; 15 C. B. N. S. 518. Share in the net profits of Music Hall, owned by corporation and vested in trustees, is not such an equitable interest as to enable a man to vote. Ibid. II. Vesting of estates. Devise to trustees for life of A. and from and immediately after her decease, to her issue, and in case she should die without leaving issue at her decease, or such issue should die under twenty-one and unmarried, then over. A. had a daughter, who died in lifetime of A., aged twenty-one and unmarried. Held, that if estate in fee vested in the daughter on reaching twenty-one, it was di- vested by her death. Young v. Turner, ci. 550 ; 1 B. & S. 550. To trustees for A., testator's daughter, for life, remainder to such of her children and their issue, and for such estates as A. should appoint, in default of appointment to her children and the heirs of their bodies, and in case of death of A. without leaving any child her surviving, and in event of such child her surviving dying without leaving issue, then over; held, that a son of A., who died in her lifetime, took a vested estate tail. Richards v. Davies, cvi. 69 ; 13 C. B. N. S. 69. Affirmed in Exchequer Chamber. Ibid. 861. What words will constitute an estate in remainder vested in interest. Rich- ardson v. Power, cxv. 780 ; 19 C. B. N. S. 780. Devise over, if a certain estate in remainder did not vest, held to mean, under words of will, if estate did not vest in interest and not in possession. Ibid. III. Estate in fee simple. A statute giving a company power to appoint and set out towing paths, and to make use of the lands of individuals for every purpose necessary to naviga- tion, creates an easement and not a fee. Badger v. S. Y. Railway Co., cii. 347 : 1 E. & E. 347. Devise of " securities for money debts on mortgage," &c, subject to the pay- ment of debts of testator to persons also appointed executors, conveys the fee in the mortgaged premises. Rippen v. Priest, cvi. 308 ; 13 C. B. N. S. 308 IV. Estate tail. Power of leasing in settlement by tenant in tail, destroyed by private act of parliament, if exercised, is not binding on succeeding tenant in tail. Earl of Shrewsbury v. Keightley, cxv. 606 ; 19 C. B. N. S. 606. Earl of Shrewsbury r. Harbord, cxv. 643 ; 19 C. B. N. S. 643. • Powers of leasing destroyed by prior act, construed as granted by subsequent act and binding on succeeding tenants in tail, it being to their interest. Earl of Vol. III.— 14 210 ESTATE, IV. (a)— VI. Shrewsbury v. Beazley, cxv. 651 ; 19 C. B. N. S. 651. See Earl of Shrewsbury v. Keightley, cxv. 606 ; 19 C. B. N. S. 606. A ,l disposition" of an estate tail, under 3 & 4 Wm. 4, c. 74, s. 38, comprises all the instruments by which the arrangement is carried into effect. Crocker v. Waine, cxvii. 697 ; 5 B. & S. 697. (a) Estate tail under will. Devise to G., " his heirs lawfully begotten, for ever," gives an estate tail. Good v. Good, xc. 295 ; 7 E. & B. 295. Devise in trust for the daughter and daughters of T. B., as tenants in common, and in "default of such issue" over, with a shifting clause that if any of the daughters of the said T. B. should become a nun the use to such daughter should be void, and the person next in reversion to take should enter and enjoy in as full a manner as if she had been dead without issue of her body, gives the daughters of T. B. an estate tail. Biddulph v. Lees, xcvi. 289 ; £., B. & E. 289. A testator devised an estate C. to his son, James, for life, remainder to his (James') first and other sons in tail male, with like remainders to testator's other sons for life, and their sons in tail male, remainder to sons of first son in tail general, with like remainder to sons of testator's other sons, with further limita- tions ; and then provided that as often as under the will of another, an estate G. should come into the possession of any of his sons or daughters, or any of their issue, the person next in remainder under the limitations of estate C. to such son, daughter, or their issue, should be entitled to and come into possession of estate C, as if the person so possessed of estate G. " had died or were dead without issue ;" held that James having come into possession of estate G., the only effect of the shifting clause was to give the person entitled next after him estate C, but it did not render his son incapable of taking estate C, under the limitations of the will. Jellicoe ». Gardner, civ. 568 ; 12 0. B. N. S. 568. Affirmed Ex. Ch., cix. 170 ; 15 C. B. N. S. 170. Affirmed H. of L., cxiv. 860 ; 18 C. B. N. S. 860. Generality of word issue restricted to " male issue" by reference to another will. Ibid. The object of shifting clause is to propel estate C. from devisee, who succeeds to estate G., to person next in remainder under limitations of estate C. Ibid. V. Estate for life. Devise to A. " to hold to him and the heir male of his body lawfully begotten and the heirs and assigns of such heir male for ever," but if A. should die without leaving any son of his body, then to B. in fee, subject to a payment to such of the daughters of A. as should be living at the time of his decease, gives A. a life estate. Chamberlayne v. Chamberlayne, lxxxviii. 625 : 6 E. & B. 625. Devise to J. for life, remainder to the heirs male of his body for their natural lives, in succession according to their respective seniorities or in such proportions as J., their father, shall appoint, construed to give J. an estate for life only. Jordan v. Adams, xcv. 748 ; 6 C. B. N. S. 748. Affirmed in Exchequer Chamber, xcix. 483 ; 9 C. B. N. S. 483. VI. Other estates. That a servant is permitted to use the master's premises for a business of his own, in addition to performing his duties there, does not give him an estate. White v. Bayley, c. 227 ; 10 C. B. N. S. 227. Devise of copyholds, in absence of custom to entail, to A. for life, and after his decease to B., son of A., 1 and the heirs male of his body, with proviso that if B. should die without leaving issue male of his body him surviving, then after death of A. and B., which should last happen, to C, his heirs and assigns, for ever, gives A. an estate for life, B. a conditional fee, and C. an executory devise. Hardcastle v. Dennison, c. 606 ; 10 C. B. N. S. 606. As to nature of certain estates, called customary rights, permanent in their nature and for life, but not freehold, and it seems not copyhold, though in the nature of it. Garbutt v. Trevor, cix. 550; 15 C. B. N. S. 550. ESTOPPEL. 211 ESTOPPEL. Party who acts upon a reference as existing and requests postponement, es- topped from objecting to award that there was no written consent to enlarge- ment of time. Tyerman v Smith, lxxxviii. 719; 6 E. & B. 719. Where one assured died within twenty-one days allowed for payment of pre- mium after it accrued, and the directors maintained silence to his executors, they were not estopped from denying the payment, Simpson v. Accidental Death In- surance Co., lxxxix. 257; 2 C. B. N. S. 257. Quasre, whether one would be estopped from suing for an arrest who had falsely declared herself to be the defendant. Dunston v. Paterson, lxxxix. 495 : 2 0. B. N. S. 495. Rule that tenant estopped from denying landlord's title, is not confined to ejectment. Delaney v. Fox, lxxxix. 768 ; 2 0. B. N. S. 768. Semble, that the eviction which puts an end to this estoppel must be actual and not constructive. Ibid. Order of removal of a mother and infant, "her daughter," to a parish, unap- pealed against, does not estop the parish from showing the illegitimacy of the child, on appeal from another order nineteen years later. Regina v. I nhabitants of Caerwys, xcii. 720 ; 8 B. & B. 720. Carrier not estopped from setting up the jus teriii, though employed by plain- tiff. Sheridan v. The New Quay Co., xciii. 618 ; 4 C. B. N. S. 618. In detinue against an attorney for deeds intrusted to him, he is estopped from saying that before demand he lost them. Reeve v. Palmer, xciv. 84 ; 5 C. B. N.S.84. An assured, leaving his papers with his brokers for adjustment of the loss, is estopped from denying their authority to collect the money. Sweeting v. Pearce, xcvii. 449 ; T C. B. N. S. 449. Affirmed in Exchequer Chamber, xcix. 534 ; 9 C. B. N. S. 534. A patentee is estopped from denying novelty, in m suit against him by the assignee for infringement. Walton v. Lavater, xcviii. 162; 8 C. B. N. S. 162. A defendant who has, in a former action on same contract between same parties, suffered judgment by default, is not thereby precluded from setting up a defence by way of confession and avoidance which he could before have pleaded in bar. Howlett v. Tarte, c. 813 ; 10 C. B. N. S. 813. One who has paid rent is not estopped, after a determination of the tenancy, from setting up a prior good title in himself, in ejectment by landlord. Acci- dental Death Ins. Co. v. Mackenzie, c. 871 ; 10 C. B. N. S. 871. Where a landlord directs the tenant to pay rent to another, he is not estopped from distraining for such rent as has not been paid in consequence of such rep- resentation. White v. Greenish, ciii. 210 ; 11 C. B. N. S. 210. When there has been an enlargement of ancient lights, and in obstructing the new it has been necessary to obstruct the old lights, after the new lights have been stopped up, an action will lie for the continuance of the obstruction : per Erie, C. J., and Williams, J., contra, Byles, J., and Keating, J. Jones v. Tap- ling, ciii. 283; 11 C. B. N. S. 283. Affirmed civ. 826; 12 C. B. N. S. 826: Pollock, C. B., and Martin, B., dissenting. Affirmed in H. of L. cvi. 876 ; 13 C. B. N. S. 876. The failure to comply with a statute, requiring holder of any bill of exchange to cancel the stamp, disables the holder from maintaining an action for the consideration of the notes. Pooley v. Brown, ciii. 566; 11 C. B. N. S. 566. A landlord is estopped from alleging a forfeiture for non-repair in an action of ejectment, when in a prior action of covenant he had described the breach, for non- repair, as occurring "during the existence of the term." Pellatt v. Boosey, ciii. 885; 11 C. B. N. S. 885. The j udgment of a county court that the discharge of a servant was proper, is a bar to a suit for wages before the justices. Routledge v. Hislop, cv. 549 ; 2 E. & E. 549. Where a defendant in error coram nobis has pleaded a joinder in error, he is estopped from asking to have proceedings in error set aside. Smith v. Bromley, cv. 581 ; 2 E. & E. 581. When the defendant does not at the time object to the judge's taking time to consider whether he will make the certificate provided for by 15 & 16 Vict. c. 212 ESTOPPEL. 77, he is precluded from asking the rescission of the certificate, because it was not made "forthwith." Heden v. Steam Nav. Co., cv. 672 ; 2 E. & B. 672. A married woman, acting for a widow and with money supplied by her, pur- chased and had registered in her own name shares in a railway company. She afterwards sold and transferred these shares on registry of company. Before the transfer was made the Insolvent Court, on petition of the widow, had made a vesting order. The company, learning these facts, re-transferred the shares to assignee of widow. Held, they were estopped from such re-transfer, as no par- amount title had been shown. Ward v. S. E. Railway Co., cv. 812: 2 E. &E. 812. The registry of shares of stock estops the company from questioning the title of claimant as against any one not having a paramount title. Ibid. An order of justices under 16 & 17 Vict. c. 97, adjudging a lunatic to be chargeable to the county is not final, and the county is not estopped from getting another order from justices adjudging lunatic to be settled in parish which obtained the first order. All Saints v. Middlesex, cv. 830 ; 2 E. & E. 830. Grantee from crown not divested of estate in land by knowledge of acts of par- liament authorizing improvements by another. Vyner v. Mersey, &c, Docks, cviii. 753; 14 C. B. N. S. 753. Even though the improvements were of enormous value and had been erected in the faith that title to land was not in such grantee. Ibid. Conduct of grantee held not sufficient to constitute an estoppel. Ibid. Unless the plaintiff could have recovered the whole of his claim in a previous action, that action is not good as a plea of res adjudicata. Nelson v. Couch, cix. 99 ; 15 C. B. N. S. 99. Where therefore by proceedings in admiralty for collision an insufficient amount had been obtained to pay the claim, it is no bar to an action for the balance. Ibid. As to how far partial recovery of a debt secured by pledge not an estoppel. Am. Ed. note. Ibid. Conclusiveness of foreign judgment as to matters within their jurisdiction. Scott v. Pilkington, ex. 11 ; 2 B. & S. 11. Doctrine discussed in Am. Ed. note. Ibid. Licensee under patent as against licensor cannot dispute novelty or usefulness of invention or completeness of specifications, if they be sufficiently expressive of the thing. Trotman v. Wood, cxi. 479 ; 16 C. B. N. S. 479. Party attending under protest and examining witnesses not estopped from setting up want of authority in umpire. Ringland v. Lowndes, Ex. Ch. cxii. 514 ; 17 C. B. N. S. 514 ; reversing s. c. in C. P., cix. 173 ; 15 C. B. N. S. 173. Pacts decided in proceeding in prize court cannot be pleaded in estoppel, but must be given in evidence. Hobbs v. Henning, cxii. 791 ; 17 C. B. N. S. 791. Bill drawn and endorsed by procuration, accepted for valuable consideration, apparent drawer and endorser being dead at the time of drawing and endorsing, and facts being within knowledge of acceptor, is binding on him. Ashpitel v. Bryan, cxiii. 474 ; 3 B. & S. 474. Such acceptor is estopped from setting up that the bill was not endorsed by apparent drawer. Ibid. The fact that copyhold was held in trust and cestuis que trust were admitted, will not estop lord from claiming fine from devisee of legal estate though devisor never admitted. Lord Londesborough v. Foster, cxiii. 805 ; 3 B. & S. 805. It i^ a good reply to a plea alleging that the Court of Chancery had taken jurisdiction of the same subject-matter, to say that the bill had been dismissed without prejudice to right to proceed at law, under 25 & 26 Vict. c. 42. Lang- mead v. Maple, cxiv. 255 ; 18 C. B. N. S. 255. It would seem, that a plea like the above, under 21 & 22 Vict. c. 27, and 25 & 26 Vict. c. 42, without such reply, would be a good plea in bar. Ibid. Replication in estoppel not allowed where the matter is admissible in evidence under a plea traversing the endorsement. Phillips v. Im Thurn, cxiv. 400 ; 18 C. B. N. S. 400. Proceedings in foreign attachment not binding on personal representatives where defendant was dead at inception of proceedings. Matthey v. Wiseman, cxiv. 657 ; 18 C. B. N. S. 657. ESTOPPEL. EVIDENCE, I. 21c Acceptor for honor is estopped from denying that the bill is a valid bill. Phillips v. Im Thurn, cxiv. 694; 18 C. B. N. S. 694. Or, stating that the payee is a fictitious person. Ibid. The estoppel of a bailee from denying the title of his bailor ceases when the bailment is determined by what is equivalent to eviction by title paramount. Biddle v. Bond, cxviii. 224 ; 6 B. . Drewitt, cxiv. 48 ; 18 C. B. N. S. 48. XI. Evidence of usage and custom. Semble, that practice to allow money to be paid at the office of the bailiff is good evidence against the sheriff. Gregory v. Cotterell, lxxxv. 571 ; 5 E. & B. 571. To prove that a sale was on a condition, evidence of other sales by plaintiff, on the same condition, is not admissible. Hollingham v. Head, xciii. 388 ; 4 C. B. N. S. 388. Dubitatur, whether the question as to other sales could be asked plaintiff on cross-examination to test his memory. Ibid. User as evidence of right of common in a forest. In re Hainault Forest Act, xcix. 648; 9C. B. N. S. 648. In the absence of direct evidence, the soil may be presumed to belong to the two parties jointly. Ibid. When evidence of course of business not admitted to extend contract of in- surance. Pearson v. Com. Union Ass. Co., cix. 304 ; 15 C. B. N. S. 304. When money due on stock gambling contract is paid at request of defendant by plaintiff, he can recover. Rosewarne v Billing, cix. 316 ; 15 C. B. N. S. 316. It seems, that evidence of an usage to allow value of articles mentioned in bill of lading, but not put on board, to be deducted from freight, would not be ad- missible. Meyer v. Dresser, cxi. 646 ; 16 C. B. N. S. 646. To prove usage in London as to meaning of analysis by two chemists. Hey- worth v. Knight, cxii. 298 ; 17 C. B. N. S. 298. Evidence of custom of discounting freight on bills of lading on ships coming from ports of United States, whether extended to port in new state of the Union, for the jury. Falkner v. Earle, cxiii. 360; 3 B. & S. 360. Evidence to prove a tything distinct from a parish. Freeman v. Reed, cxvi. 174 ; 4 B. & S. 174. 220 EVIDENCE, XI.— XV. Evidence necessary to support the existence of a by-law, qualifying general terms of charter. Regina v. Fisher, cxvi. 575 ; 4 B. & S. 575. XII. Hearsay. Award not evidence of reputation. Wenham v. Mackenzie, lxxxv. 447 ; 5 E. & B. 447. In ejectment to determine who was heir of lunatic decedent, declarations of relatives made in depositions under the commission of lunacy, admissible. Gee v. Ward, xc. 509 ; 7 E. & B. 509. An old deed between owners of an estate and parties acting on behalf of parish, found among title papers of another estate in said parish, reciting that the estate is within the parish, is evidence by reputation of extent of parish. Regina v. Mytton, cv. 557-; 2 E. & E. 557. Parliamentary survey, made in the time of the Commonwealth, admissible to prove distinctness of ty thing, from parish. Freeman v. Read, cxvi. 174; 4 B. & S. 174. XIII. Declarations generally. A map made by order of a former lord of the manor and used by the stewards for more than thirty years for the purpose of denning the copyholds, setting out a strip between dotted lines called a lane, is not evidence that this strip is a high- way. Pipe v. Fulcher, cii. Ill ; 1 E. & E. 111. Declarations of decedent of existence of missing will and codicil made up to within a few days of death, are admissible to rebut presumption of destruction by testator. Whiteley v. King, cxii. 756 ; 17 C. B. N. S. 756. Where one party introduces testimony on cross-examination, evidence of dec- larations accompanying it would only be admissible on behalf of the same party, if they would be so in chief. Hyde v. Palmer, cxiii. 657 ; 3 B. & S. 657. To be admissible, the declarations must accompany some act, the nature, object or motives of which are the subject of inquiry. Ibid. In a claim to a right of way by user, declarations of a former owner of the dominant tenement showing that certain acts about to be done by him were done with an assertion of right, are admissible. Bennison v. Cartwright, cxvii. 1 ; 5 B. & S. 1. XIV. Acts. On a question whether a piece of waste land along a highway belonged to the lord of the manor, proof of the grant by the lord of other not continuous pieces along same road is admissible. Dendy v. Simpson, lxxxvi. 831 ; 18 C. B. 831. On inquisition on writ of elegit, proof of possession or receipt of rent is prima facie evidence of title to lands. Barnes v. Harding, lxxxvii. 568 ; 1 C. B. N. S. 568. The fact that one lets as auctioneer is not conclusive evidence that the contract was not made with him personally. Fisher v. Marsh, cxviii. 411 ; 6 B. & S. 411. XV- Admissions. Declarations of deceased tenant, as to right of common, contrary to interest of reversioner, rejected. Papendick v. Bridgwater, lxxxv. 166 ; 5 E. & B. 166. Statements made through interpreter, selected by party, evidence for other side without proof of correctness of interpretation. Reid v. Hoskins, lxxxv. 729 ; 5 E. & B. 729. Affirmed in Exchequer Chamber, lxxxviii. 953 ; 6 E. & B. 953. Payment of rent under distress is not i conclusive admission of title in the dis- trainor. Knight ». Cox, lxxxvi. 645 ; 18 C. B. 645. Where payment to be made in instalments, after a valuation made, proof of payment of one instalment is some evidence of valuation having been made. Gor- don v. Whitehouse, lxxxvi. 747 ; 18 C. B. 747. Evidence of the assertion of a fact by counsel before tbe court may be given by the other party. Haller v. Worman, xcix. 892 ; 9 C. B. N. S. 892. Oral statement of a deceased person admissible to show that he occupied land as a tenant and the amount of rent. Regina v. Overseers of Birmingham, ci. 763 ; 1 B. & S. 763. Where a man permits a statement to be made representing him as a partner on EVIDENCE, XV.— XVIIL 221 the faith of which goods are sold to a firm, it is sufficient to make him liable as partner to third party. Martyn v. Gray, eviii. 824 ; 14 C. B. N. S. 824. Letter in reply to another denying breach of warranty, but not warranty itself, evidence of authority of servant selling horse to give warranty. Miller 8. Law- ton, cix. 834; 15 0. B. N. S. 834. Admission of dishonor is evidence of waiver of right to notice of dishonor of bill of exchange. "Woods v. Dean, cxiii. 101 ; 3 B. & S. 101. Admissions of night inspector on railroad as to past transactions will not bind employers, though he had authority at the time of the transaction. G. W. Kail- way Co. e. Willis, cxiv. 748 ; 18 C. B. N. S. 748. Admissions by counsel in the conduct of a cause in introducing testimony are binding on client. Richards v. Morgan, cxvi. 641 ; 4 B. & S. 641. Evidence given for the purpose of proving a particular fact may be received afterwards in another cause against the party producing it. Ibid. XVI. Proof by witnesses. Attachment not granted where party subpoenaing witness promised to notify him, and the notice left with his wife was not received. Netherwood v. Wilkin- son, lxxxiv. 226 ; 17 C. B. 226. One who, under an order by consent, was to settle the facts, held an arbitra- tor, under 3 & 4 Wm. 4, c. 42, with power to compel attendance of witnesses. Graham v. Glover, lxxxv. 591 ; 5 E. & B. 591. Rule for mandamus to examine witnesses may be moved pending issues at law. Kelsall v. Marshall, lxxxvii. 266 ; 1 C. B. N. S. 266. Money had and received lies for money paid to a witness, when case settled and no expense incurred. Martin v. Andrews, xc. 1 ; 7 E. & B. 1. A witness subpoenaed by defendant who obtained the verdict but afterward de- tained by plaintiff, is not prevented from recovering expenses from plaintiff for time of detention because he has, after receiving the amount from defendant and finding that it was not allowed on taxation, returned it to him by agreement. Hale v. Bates, xcvi. 575 ; E., B. & E. 575. "Where defendant, a medical practitioner who had treated plaintiff's wife for insanity, and been employed to collect evidence for a divorce trial, wrote to plain- tiff urging him to go to trial at once, but saying he must have a week's notice, it is evidence of a contract to be present as a witness. Yeatman v. Dempsey, xcvii. 628 ; 7 C. B. N. S. 628. Affirmed in Exchequer Chamber, xcix. 881 ; 9 C. B. N. S. 881. XVII. Privileged witnesses. In an action against husband for necessaries supplied wife living apart from him after adultery, she may be a witness to prove the adultery. Cooper v. Lloyd, xcv. 519; 6 C.B.N. S. 519. A pardon takes away the privilege as regards risk of prosecution in the name of the crown. Regina v. Boyes, ci. 311 ; 1 B. & S. 311. The possibility of impeachment, after a pardon, will not excuse in case of bribery. Ibid. Under 15 & 16 Vict. c. 57, s. 8, Corrupt Practices of Elections Act, statements made before commissioner are privileged, except in indictments for perjury com- mitted in such answers. Regina v. Leatham, cvii. 658 ; 3 E. & E. 658. But such privilege does not extend to documents in existence and referred to in such answers. Ibid. But, it seems, that even if privileged, secondary evidence of the contents would be admissible. Ibid. Correspondence by plaintiff, with agent in India, after dispute arose with de- fendant, need not be produced. Bank of India v. Rich, cxvi. 73 ; 4 B. & S. 73. Such communications are privileged. Ibid. Even where party applying swears they are material to his case. Ibid. XVIIL Competency of witnesses. The rule that the evidence of an accomplice must be corroborated, is one of practice not of law, and is within the discretion of the iudee. Reeina v. Boves, ci. 311 : 1 B. & S. 311. J * * J 222 EVIDENCE, XVIII., XIX. (a), (b), (c). Wife is not a competent witness to prove non-access during marriage. Yates v. Chippindale, oiii. 512; 11 0. B. N. S. 512. When justices have examined the wife in regard to non-access, but have de- cided independently of her evidence, their decision will not be reversed. Ibid. When proceedings are criminal, defendant is not a competent witness. Par- ker v. Green, ex. 299 ; 2 B. & S. 299. Quare, whether wife is competent in proceeding against husband, under 5 Geo. 4, c. 83, s. 4. Sweeney v. Spooner, cxiii. 329 ; 3 B. & S. 329. The wife of defendant is not a competent witness in an information against him, under 5 Geo. 4, c. S3, for failure to support her. Reeve v. Wood, cxvii. 364 : 5 B. & S. 364. Semble, that a joint defendant in a former trial for the same felony, is an ad- missible witness. Winsor v. The Queen, cxviii. 143 ; 6 B. & S. 143. XIX. Examination of witnesses. (a) General remarks. An adverse witness, within s. 22 of the Common Law Procedure Act of 1854, is one hostile not simply unfavorable. Greenough v. Eccles, xeiv. 786 ; 5 C. B. N. S. 786. Where one of two joint plaintiffs executed a release, by which the other was surprised at. the trial, the latter may examine him to discover whether it was ob- tained by fraud. Robinson v. Vernon, xcvii. 231 ; 7 C. B. N. S. 231. Semble, that a party, having called an attesting witness to a will, may contra- dict him. Jackson v, Thomason, ci. 745 : 1 B. & S. 745. A party may be cross-examined in regard to result of a judicial proceeding to which he was a party, for purpose of discrediting him, without prod icing the record. Henman v. Lester, civ. 776; 12 C. B. N. S. 776. Byles, J., dissented. (b) Examination upon interrogations. ■ Commission may issue to a tribunal in a foreign country where to refuse it would be a denial of justice. Fisher v. Izataray, xcvi. 321 ; E., B. & E. 321. Interrogatories, under Common Law Procedure Act (17 & 18 Vict. c. 125), may be delivered, though the answers might render the party liable to criminal pros- ecution, but he may refuse to answer them. Bartlett v. Lewis, civ. 249 ; 12 C. , B. N. S. 249. Interrogatories, under Common Law Procedure Act 1854, may be delivered in an interpleader issue. White v. Watts, civ. 267 ; 12 C. B. N. S. 267. Affidavit in support of application to deliver interrogatories must state that party will be benefited " in this cause." Oxlade v. N. E. Railway Co., civ. 350 ; 12 C. B.N. S. 350. The affidavit of an attorney is not necessary where party sues or defends in person. Ibid. In an ejectment, interrogatories by defendant as to nature of title upon which plaintiff relies not allowed, under Common Law Procedure Act 1854, unless there are special circumstances. Stoate v. Rew, cviii. 209 ; 14 C. B. N. S. 209. When a commission is possible, mandamus for examination of witnesses in colonies not granted. Farnworth v. Hyde, cviii. 719; 14 C. B. N. S. 719. What interrogatories to defendant not allowed in action of slander. Stern v. Sevastopulo, cviii. 737 ; 14 C. B. N. S. 737. Such interrogatories are within the discretion of the court. Ibid. It seems that in such an action there must be peculiar circumstances of aggra- vation and oppression, in order that they may be allowed. Ibid. Interrogatories, under Common Law Procedure Act 1854, s. 51, allowed, though an affirmative answer would disclose fraud in defendant. Goodman v. Holroyd, cix. 839 ; 15 C. B. N. S. 839. In action of slander, commission to examine witnesses in Australia allowed on affidavit of what the witnesses are expected to prove. Barry v. Barclay, cix. 843 15 C. B. N. S. 849. (c) Depositions. Examination of captain of vessel by receiver of wrecks, under 17 & 18 Vict, c. 104, s. 449, not admissible to prove that collision was on starboard bow, in action for collision. Nothard v. Pepper, cxii. 39 ; 17 C. B. N. S. 39. EVIDENCE, XIX. (c), (d). EXECUTION, L, II. (a). 223 A deposition in chancery, when used by a party to prove absence of title to an estate, is evidence afterwards in another suit to disprove title claimed by him in same estate. Richards v. Morgan, cxvi. 641 ; 4 B. & S. 641. (d) Viva voce under Common Law Procedure Act. Application for examination viva voce because of insufficient answers to inter- rogatories should be made without delay. Chester v. Wortley, lxxxvi. 239 ; 18 An order for the examination of witnesses, if asked bona fide, may be made before the case is at issue. Fischer v. Hahn, cvi. 659 ; 13 C. B. N. S. 659. EXECUTION. I. When Execution may issue. (a) What may be taken in Exe- II. Proceedings on a capias ad satis- cution. faciendum. (6) Of the levy and proceedings (a) Who is privileged from. thereon. (6) Other matters relating to a (c) Interpleader, capias ad satisfaciendum. IV. Of the return. III. Proceedings under a fieri facias. V. Sequestration. VI. Other matters relating to. I. When execution may issue. Judgment creditor, who has issued an ineffectual execution against u. joint stock company, is entitled as of right to execution against a shareholder. Mor- isse v. Royal British Bank, lxxxviii. 67 ; 1 C. B. N. "S. 67. Not allowed on ground that assignments of error are frivolous, unless they are altogether incapable of being sustained. Hall v. Conder, lxxxix. 22 ; 2 C. B. N. S. 22. Motion for judgment and execution, under Common Law Procedure Act, made to the court and absolute in first instance. Youens v. Keen, lxxxix. 384 ; 2 C. B. N. S. 384. Executors of one who died before his name was inserted in the last filed memorial of a joint stock company, and before judgment against the company was obtained, are not liable to execution. Powis v. Butler, xci. 645 ; 3 C. B. N. S. 645. Execution may be had against a shareholder, whose name appears on the last memorial of a joint stock company, though he has since bona fide transferred his shares. Fry v. Russell, xci. 665 ; 3 C. B. N. S. 665. May issue against after acquired property of bankrupt for cost of suit not provable under commission. Oxlade v. N. E. Railway Co., cix. 695 ; 15 C. B. N. S. 695. When there is no judgment at time of bankruptcy, they are not provable. Ibid. When a composition deed, under 24 & 25 Vict. c. 134, s. 192, has not been carried out, leave to issue execution under 8. 198 must be asked of the Court of Bankruptcy. Skilton v. Symonds, cxiv. 418 ; 18 C. B. N. S. 418. By 24 & 25 Vict. c. 134, s. 198, no execution can be issued on a judgment after the execution of deed of inspectorship under said act without leave of the court. Hartley v. Mare, cxv. 85 ; 19 C. B. N. S. 85. II. Proceedings on a capias ad satisfaciendum. (a) Who is privileged from. A common informer returning after procuring a summons, not privileged. Ex parte Cobbett, xc. 955 ; 7 E. & B. 955. Discharge in bankruptcy of one who is a shareholder in a joint stock company prevents execution against him for debt of the company. Thomson v. Hard- ing, xci. 254 ; 3 C. B. N. S. 254. 224 EXECUTION, II. (a), (J). Person attending a police court as a prosecutor and witness. Montague v. Harrison, xci. 292 ; 3 C. B. N. S. 292. The "sum recovered" in 7 & 8 Vict. c. 96, s. 57, means the amount for which judgment was properly signed and not the amount remaining due. West v. Farlar, cii. 179 ; 1 E. & E. 179. Where an insolvent, whose case has been adjourned without protection, is arrested in leaving court, on a ca. sa., he will not be discharged except on condi- tion not to sue the sheriff. Andrews v. Martin, civ. 371 ; 12 C. B. N. S. 371. How far bankrupt privileged, under 12 & 13 Vict. c. 106, s. 257, from ca. sa. Bateman v. Freston, cvii. 578 ; 3 B. & E. 578. Party attending at Insolvent Debtors' Court, privileged from arrest, eundo, morando et redeundo. Chauvin v. Alexander, ex. 47 ; 2 B. & S. 47. Garnishee, under Common Law Procedure Act, 17 & 18 Vict. c. 125, exempt from. Horner v. Luff, cxiii. 818 ; 3 B. & S. 818. (6) Other matters relating to capias ad satisfaciendum. When wife and husband taken in execution for debt of wife she is entitled to discharge, unless she has separate property from which she can pay. Ivens v. Butler, xc. 159; 7 E. & B. 159. Though husband has obtained protection from arrest. Ibid. Ten days' notice of the application for the discharge of a' prisoner detained a year for 201., must be given, under 48 Geo. 3, c. 123. Doye v. Bley, xci. 764 ; 3 C. B. N. S. 764. Common Law Procedure Act does not affect the right to discharge of a pris- oner who has been confined a year, for costs in ejectment. Humphreys v. Franks, xci. 765 ; 3 C. B. N. S. 765. Discharge from a ca. sa. is a satisfaction of the judgment, though the condition of the discharge afterward broken. Cattlin v. Kernot, xci. 796 ; 3 C. B. N. S. 796. One arrested, under an invalid writ, cannot be detained under other valid writs. Hooper v. Lane, xcii. 1095 ; 8 E. & B. 1095. Against interlocutory costs, after j udgment, may be set off a judgment in the same suit upon which a ca. sa. has been executed. Thompson v. Parish, xciv. 685 ; 5 C. B. N. S. 685. The sheriff having, on payment of debt, discharged the defendant on a ca. sa., and paid the money to the clerk of plaintiff's attorney, who absconded with it, is not liable for the escape. Hemming v. Hale, xcvii. 487 ; 7 C. B. N. S. 487. S. 123, of the Common Law Procedure Act, does not entitle plaintiff to obtain, on a ca. sa., the expenses of a previous unsuccessful fi. fa. Marquis of Salisbury v. Ray, xcviii. 93 ; 8 C. B. N. S. 93. Action lies for malicious arrest on a ca. sa. for an amount more than was due, though plaintiff did not obtain his discharge by an order of court. Gilding v. Eyre, c. 592 ; 10 C. B. N. S. 592. Arrest, on a ca. sa., is not an extinguishment of the debt. Hartley v. Shem- well, ci. 1 ; 1 B. & S. 1. Bail is only liable for the sum mentioned in judge's order and endorsed on writ, though less by mistake than amount of debt. Jonas v. Tepper, cii. 327 ; 1 E. & E. 327. An interim order of protection, under 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, protects the alleged bankrupt from arrest under a ca. sa. issued under a judgment for a debt contracted after petition filed. Wallinger v. Gurney, ciii. 182 ; 11 C. B. N. S. 182. A detainer under a ca. sa. is usually good where an arrest by the detaining party would have been valid. Bateman v. Freston, cvii. 578 ; 3 E. & E. 578. The detainer is equivalent to an arrest. Ibid. Unless it appear that the first arrest was a wrongful act of the sheriff. Ibid. Or, that there was collusion between detaining party and one making first arrest. Ibid; Or between detaining party and sheriff. Ibid. Hence, when an arrest of a bankrupt had been made during the period of protection of bankrupt, a subsequent detainer was held good. Ibid. Sed quwre, see Ex parte Freston, 30 L. J. N. S. Ch. 460, where the bankrupt, by habeas corpus in Chancery, received his discharge. Ibid. 588, n. a. EXECUTION, II., III. (a), (6), (c) — YI. 225 Defendant will not be discharged where it appears that there is a deed of arrangement, under Bankrupt Act 1861, s. 192, containing unreasonable pro- visions not executed by plaintiff, although registered under s. 198. Leigh r. Pendlebury, cix. 815; 15C. B. N. S. 815. The plaintiff's consent that the defendant shall be released from custody on a ca. sa. will be effective, although the plaintiff's attorney's costs have not been paid. Langley v. Headland, cxv. 42 ; 19 C. B. N. S. 42. Even where they are not likely to be paid by reason of the plaintiff being an infant. Ibid. III. Proceedings under a fieri facias. (a) What may be taken in execution. Under 17 & 18 Vict. c. 36, s. 1, assignee of personal chattels, under bill of sale, has twenty-one days after the giving of the bill to file it. Marples v. Hartley, cvii. 610 ; 3 E. & B. 610. If filed within that time good against execution creditor, even though levy made before filing, and goods in apparent possession of vendor. Ibid. Qucere, whether the twenty-one days run from the date or giving of the bill of sale. Ibid. (6) Op the levy and proceedings thereon. Sheriff is not entitled to poundage when after seizure, but before sale, judg- ments and subsequent proceedings are set aside. Miles v. Harris, oiv. 550; 12 C. B. N. S. 550. It is not duty of the execution creditor to endorse on the fi. fa. the residence of the judgment debtor. Childers v. Wooler, cv. 287 ; 2 E. & E. 287. Such endorsement does not amount to a direction to sheriff. Ibid. Judgment having been obtained, but proceedings for another cause of action instituted by defendant against plaintiff, a stay of execution allowed. Alliance Bank v. Holford, cxi. 460 ; 16 Cf. B. N. S. 460. An act of bankruptcy before the sale will not affect proceedings under a fi. fa. when the levy is prior thereto, under 12 & 13 Vict. c. 106, s. 133. Edwards v. Scarsbrook, cxiii. 280 ; 3 B. & S. 280. (c) Interpleader. "Where each party partially successful, costs are to be taxed on that principle, without reference to which was plaintiff or defendant. Clifton v. Davis, Ixxxviii. 392 ; 6 E. & B. 392. IV. Of the return. Defendant may rule sheriff to return an executed fi. fa. Richardson v. Trun- dle, xcviii. 474 ; 8 C. B. N. S. 474. V. Sequestration. An interim order, under 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, does not prevent creditor from sequestration of benefice. Parry v. Jones, lxxxvii. 339 ; 1 C. B. N. S. 339. Court refused to inquire whether a protection issued under a Scotch seques- tration was obtained by fraud. O'Brien v. Don, lxxxvii. 702 ; 1 C. B. N. S. 702. Ecclesiastical writs of levari facias bind from time of delivery. Sturgis v. Bishop of London, xc. 542 ; 7 E. & B. 542. VI. Other matters relating to. That there can be no execution, no reason for refusing judgment. Kendall v. King, lxxxiv. 483 ; 17 C. B. 483. Seizure of goods of true owner, in possession of bankrupt, by the sheriff before act of bankruptcy, under an execution against the bankrupt, being invalid, is not a withdrawal of them from his possession so as to prevent right of assignees. Barrow v. Bell, lxxxv. 540 ; 5 E. & B. 540. Payment to bailiff's assistant is good as against the sheriff, though he never received the money. Gregory v. Cotterell, lxxxv. 571 ; 5 E. & B. 571. Execution may issue against a shareholder in a joint stock company, induced Vol. III.— 15 226 EXECUTION, VI. EXEC'RS AND ADM'RS,L— IV. to become so by fraud not of the creditor. Henderson v. Royal British Bank, xc. 356; 7 E. & B. 356. Bailiff having seized the goods of a stranger, cannot, under 19 & 20 Vict. c. 108, s. 75, distrain them for rent due the landlord. Beard v. Knight,. xcii. 865: 8 E. & B. 865. Notice to execution creditor, before completion of sale under a fi. fa., of an act of bankruptcy, renders sale invalid. Brewin v. Briscoe, cv. 116; 2 E. & E. 116. When an execution has been set aside on terms, and defendant avails himself of order, he 'will not be allowed to have terms subsequently set aside. Wilcox v. Odden, cix. 837 ; 15 C. B. N. S. 837. Levy and sale under execution, by defendant against owner of goods after wrongful withholding, cannot be given in mitigation of damages in action of trover. Edmondson v. Nuttall, cxii. 286 ; 17 C. B. N, S. 286. EXECUTOES AND ADMINISTRATOES. I. Administration. III. Duties and liabilities of Executors, II. Ofthe interest and power of Execu- &c. tors and Administrators. IV. Proceedings by. V. Proceedings against. I. Administration. What words sufficiently set forth a right in the husband to sue, under 9 & 10 Vict. c. 93, as administrator of the wife, for injuries causing her death. Chap- man v. Rothwell, xcvi. 168 ; E., B. & E. 168. ' Effect of bond assigned to creditor, under 20 & 21 Vict. c. 77. Sandrey v. Michell, cxiii. 405 ; 3 B. & S. 405. II. Or the interest and power of executors and administrators. Assent to bequest by executor who never proved will, sufficient, if letters of administration c. t. a. afterward granted. Johnson • v. Warwick, lxxxiv. 516 ; 17 C. B. 516. Bona fide payment, by debtor to feme covert executrix at her request before probate, without knowledge of non-assent of husband, good against co-executor. Pemberton v. Chapman, xc. 210; 7 E. & B. 210. Affirmed in Exchequer Chamber, xcvi. 1056 ; E., B. & E. 1056. Insurance broker has no right to retain premiums due executors until the risks on policies underwritten by the testator are adjusted. Beckwith v. Bullen, xcii. 683 ; 8 E. & B. 683. Administrator de bonis non may bring error on a judgment against the admin- istrator and commence by writ of scire facias ad avdiendum errores. Curlewis v. Earl of Mornington, xcvi. 1107 ; E., B. & E. 1107. Executors cannot recover, under 9 & 10 Vict. c. 93. for death caused by fall- ing in canal, where there is no default in the company. Binder v. S. Y. Rail- way Co., cxiii. 244; 3 B. & S. 244. III. Duties and liabilities of executors, etc. In suit against sureties of administrator on bond for devastavit, there can only be recovery for benefit of all. Sandrey v. Michell, cxiii. 405 ; 3 B. & S. 405. Hence a single creditor cannot proceed even though he allege a devastavit. Ibid. IV. Proceedings by. Executor of judgment creditor not entitled to attach debt due debtor, until he has made himself party to judgment. Baynard v. Simmons, lxxxv. 59 ; 5 E. & B. 59. EX'ES & ADM'RS, IV., V. FACTOES. 227 Court refused to stay suit by administrator, on the ground that there was a will in existence. Prosser v. Wagner, lxxxvii. 289 ; 1 C. B. N. S. 289. Semble, that payment to the administrator would discharge debt. Ibid. Executor muBt sue within six years from time that right of action accrued ; it •will not do to bring suit in a reasonable time after death of decedent. Penny v. Brice, cxiv. 393 ; 18 C. B. N. S. 393. V. Proceedings against. Cannot set off an account stated with them as executors against a debt due by testator. Mardall v. Thellusson, lxxxviii. 976 ; 6 E. & B. 976. Executors of one who died before his name was inserted in the last memorial of a joint stock company filed, and before the judgment was obtained against the company, are not liable to execution. Powis v. Butler, xci. 645 ; 3 C. B. N. S. 645. Executor liable in suit by legatee for legacy, after stating an account with her, which included a personal item. Topham v. Moreeraft, xcii. 972 ; 8 E. & B. 972. Executor of a lessee is personally liable on lessee's covenant to repair. Sleap v. Newman, civ. 116 ; 12 C. B. N. S. 116. Executor liable de bonis testatoris on covenant of decedent not running with the reversion. Gorton v. Gregory, oxiii. 90 ; 3 B. & S. 90. EXECUTORY DEVISE. Executory devise over, if R. or the issue male of his body should become enti- tled to lands under the will of N., who devised to J. for life, remainder to trus- tees to preserve, &c., remainder to J.'s first and other sons in tail general, re- mainder to R. for life, remainder to trustees to preserve, &c, remainder to R.'s first and -other sons in tail general, is too remote. Harding v. Nott, xc. 650 ; 7 E. & B. 650. To A. for life, remainder to unborn children of A., and in case of the death of A. without having a child, which if a son shall attain to twenty-three, or a daughter to twenty-one, then over, held that the limitation over containing two contingencies, one of which was too remote, was divisible, and the remainder good. Evers v. ChallifS, cii. 1091 ; 1 E. & E. 1091. FACTORS. In a sale by factor, a debt due by factor to vendee cannot be set off against purchase- money when agent of purchaser knew that factor was not dealing for himself. Dresser v. Norwood, Ex. Ch., cxii. 466 ; 17 C. B. N. S. 466. Revers- ing cviii. 574 ; 14 C. B. N. S. 574. Qucere, whether it would have been different if the factor had been ignorant that the agent knew who was the factor's principal. Ibid. Doctrine of notice to agent being notice to principal discussed in Am. Ed. note. Ibid. What is intrusting goods with an agent under 6 Geo. 4, c. 94, s. 4. Baines v. Swainson, cxvi. 270 ; 4 B. & S. 270. What a sale or disposition by a factor under 6 Geo. 4, c. 94, s. 4. Ibid. What a mercantile transaction within 6 Geo. 4, c. 94, s. 4. Ibid. How far 6 Geo. 4 c. 94 (Factor's Act), modified by 5 & 6 Vict. c. 39, as to factor's powers. Ibid. 228 FALSE IMPRISONMENT, I.— III. FEES. FALSE IMPRISONMENT. I. What constitutes an Imprisonment. III. Of the proceedings. II. Legal and illegal Imprisonment. I. What constitutes an imprisonment. Where court on habeas corpus discharges prisoner under two warrants, hut custody is continued under a third, it is a fresh imprisonment. Eggington v Lichfield, lxxxv. 100; 5 E. & B. 100. Preventing a man from leaving, the room and going up stairs in his own house is an imprisonment. Warner v. Riddiford, xciii. 180 ; 4 C. B. N. S. 180. II. Legal and illegal imprisonment. Semble, that where imprisonment may be attributed to a sufficient or an insuf- ficient cause, law attributes it to good cause. Eggington v. Lichfield, lxxxv. 100; 5E. &B. 100. One who directs a constable to arrest when officer has a right to do so, not liable. Derecourt v. Corbishley, lxxxv. 188 ; 5 E. & B. 188. Calling in a policeman, who inquires whether he shall arrest the plaintiff and then takes him into custody, is evidence of defendant's responsibility. Warner v. Riddiford, xciii. 180 ; 4 C. B. N. S. 180. An action for false imprisonment will lie against a railway company. Goff v. G. N. Railway Co., cvii. 672 ; 3 E. & E. 672. But authority of servants or officers from company must be shown sufficient to justify finding of jury. Ibid. When, however, act is done by officers and servants on the spot authority may be presumed. Ibid. III. Oe the proceedings. Where warrant bad, corporation ordering proceedings not liable. Eggington v. Lichfield, lxxxv. 100 ; 5 E. & B. 100. But solicitor, who personally directs arrest and orders prisoner to gaol, re- sponsible. Ibid. No probable cause for imprisonment where a servant, who was to receive a month's notice, refused on a week's notice to deliver his master's money without the payment of the month's wages. Warner v. Riddiford, xciii. 180 ; 4 C. B. N. S. 180. That arrest was made ~by minor son of defendant who was in his employ, and that defendant on hearing of it did not forbid, but said he would not interfere, is no evidence of ratification. Moon v. Towers, xcviii. 611 ; 8 C. B. N. S. 611. Loss of an engagement as a journeyman is too remote a damage. Hoeye. Felton, ciii._142; 11 C. B. N.S. 142. A new trial will not be granted in an action for false imprisonment because verdict is less than expense of discharge from custody. Bradlaugh v. Edwards, ciii. 377; 11C. B. N. S. 377. When infant plaintiff is under seven, felony cannot be pleaded as justification. Marsh v. Loader, cviii. 535 ; 14 C. B. N. S. 535. When no material fact is suppressed in affidavit and an attachment issues by competent authority, it is a good defence. Williams v. Smith, cviii. 596 ; 14 C. B. N.S. 596. Alitor, when there is irregularity or bad faith in obtaining attachment. Ibid. FEES. Existence of fees of registrar of Archdeaconry Court only presumed from immemorial usage. Shephard v. Payne, cxi. 132; 16 C. B. N. S. 132. Affirm- ing s. c. civ. 414 ; 12 C. B. N. S. 414. Modern usurpation of excess does not affect title to original fees. Ibid. Quaere, whether there can be an ancient fee varying in amount, from time to time, with the change in value of money and other circumstances, and subject only to restriction that it shall be reasonable. Ibid. FERRY. FINE. FISHERY. FIXTURES. 229 FERRY. A right of ferry between certain landing places, held not to extend to a place eight hundred yards distant. Matthews v. Peache, lxxxv. 546 ; 5 E. & B. 546. Semble, that owners of ferries within sect. 99, 7 & 8 Geo. 4, c. 75, do not require license. Ibid. To an action for disturbance of a ferry, a plea showing that a new state of things had arisen to which the right was not applicable, is bad. Newton v. Cubitt, xciv. 627 ; 5 C. B. N. S. 627. Wherever public convenience requires a new passage near an old ferry, the proximity of latter is not actionable. Newton v. Cubitt, civ. 32: 12 C. B. N. S. 32. Affirmed in Exchequer Chamber, cvi. 864 ; 13 C. B. N. S. 864. FINE. Custom that the lord of copyhold lands may assess a fine not restricted to any number of years' value, is bad. Douglas v. Earl Dysart, c. 688 : 10 C. B. N. S. 688. FISHERY. A mesh two and a half inches broad, under 1 Eliz. c. 17, o. 3, means that every space between opposite threads shall be of that size. Thomas v. Evans, xcvi. 171 ; E., B. & E. 171. There may be a grant by the crown of the soil of the seashore below low- water mark. Free Fishers, &c, o. Gann, ciii. 387 ; 11 C. B. N. S. 387. Affirmed in Exchequer Chamber, cvi. 853 ; 13 C. B. N. S. 853. Reversed in H. of'L. on another ground, cxv. 803 ; 19 C. B. N. S. 8Q3. Under Salmon Fishery Act, 24 & 25 Vict. c. 109, occupier of fishing mill-dam must lift or remove the hatches at particular times, even though it injuriously affect his milling power. Hodgson v. Little, cxi. 198 ; 16 C. B. N. S. 198. Owner of several fishery prima facie owner of the soil. Marshall v. Steam Navigation Co., cxiii. 732 ; 3 B. & S. 732. The Prescription Act, 2 & 3 Win. 4, s. 71, does not apply to a claim for free fishery in the waters of another. Shuttleworth v. Le Fleming, cxv. 687 : 19 C. B. N. S. 687. Where there is a bona fide dispute of title to right of fishery, justices cannot convict, under 24 & 25 Vict. c. 96, s. 24, for attempting to take fish otherwise than by angling. _Regina v. Stimpson, cxvi. 301 ; 4 B. '& S. 301. Public have no fight of fishery in a non-navigable river. Hudson v, MacRae, cxvi. 585; 4B..&S. 585. What is a " fixed engine" within 24 & 25 Vict. c. 109, s. 11. Thomas v. Jones, cxvii. 915 ; 5 B. & S. 915. FIXTURES. Rector or his executors may remove hot-houses erected by him apart from the rectory, consisting of frame and glass work on walls and imbedded in mortar. Martin v. Roe, xc. 237 ; 7 E. & B. 237. On a lease providing in effect that at the expiration or sooner determination of the term, certain fixtures shall belong to the tenant, he has a reasonable time 230 FIXTURES. FORFEITURE. to remove them. Stansfeld v. Mayor of Portsmouth, xciii. 320 ; 4 C. B. N. S. 120. Tenant cannot enter to remove fixtures after determination of the term and re-entry by the landlord. Leader v. Homewood, xciv. 546 ; 5 C. B. N. S. 546. The mortgagee cf tenant's fixtures may, after a surrender of the term, enter and sever them. Loan Co. v. Drake, xcv. 798 ; 6 C. B. N. S. 798. Fixtures which would be removable by a tenant, annexed by the mortgagor in possession to the freehold for a permanent purpose, enure to the benefit of the mortgagee. Walmsley v. Milne, xcvii. 115 ; 7 C. B. N. S. 115. Wooden building erected by tenant is presumed to be a fixture. Powell v. Farmer, cxiv. 168 ; IS C. B. N. S. 168. FOREIGN ATTACHMENT. Foreign attachment cannot be prosecuted against one who was dead at the commencement of the proceedings. Matthey v. Wiseman, cxiv. 657 ; 18 C. B. N. S. 657. It would be no defence in such case for the garnishee to have paid money in consequence of such proceedings. Ibid. And this would be so though no letters of administration had been taken out before execution issued. Ibid. FOREST. User as evidence of a right of common in a forest. In re Hainault Forest Act, xcix. 648 ; 9 C. B. N. S. 648. FORFEITURE. Objection to interrogatories to party, under Common Law Procedure Act, that answers would work forfeiture of his estate, must be made when he is sworn. Chester v. Wortley, lxxxiv. 410 ; 17 C. B. 410. Where act provided that shareholder should absolutely forfeit his shares, upon non-payment of calls, but the company should take no advantage from it until after notice, held that forfeiture not complete until the notice had been given. Cockerell v. Van Diemen's Land Company, lxxxvi. 454 ; 18 C. B. 454. Affirmed in Exchequer Chamber, lxxxvii. 732; 1 C. B. N.'S. 732. Where, at the proper place of notice, a board put up without shareholder's knowledge, directed all letters for his firm to be sent to A., a notice sent to A. which did not reach shareholder, was insufficient. Ibid. Reception of the back dues of a defaulting member of a building society by two directors, when the rules required five to constitute a quorum, not waiver of the forfeiture of his share. Card v. Carr, lxxxvii. 197 ; 1 C. B. N. S. 197. Where there is a covenant not to alter without written consent, the landlord does not waive the forfeiture by merely standing by. Perry v. Davis, xci. 769 ; 3 C. B. K. S. 769. Bringing an action for subsequent rent, with a knowledge of the forfeiture, is a waiver. Dendy v. Nicholl, xciii. 376 ; 4 C. B. N. S. 376. Forfeiture of deposit money by purchaser at a vendue for non-compliance with the conditions. Ockenden v. Henly, xcvi. 485 ; E., B. & E. 485. FORFEITURE. FRAUD, I. 231 Forfeiture of railway company's title to land by acta ultra vires. Wood v. E. & L. Railway Co., xcviii. 731 ; 8 C. B. N. S. 731. Interrogatories, under the Common Law Procedure Act of 1854, not allowed where the answers would have the effect of causing a forfeiture of defendant's estate. Pye v. Butterfleld, cxvii. 829 ; 5 B. & S. 829. FORMER RECOVERY. In a suit on a collateral agreement to pay a certain monthly sum as interest on the bill, a prior suit on the bill, in which judgment was obtained for the prin- cipal, but not interest, is a bar to the recovery after the judgment, but not before. Florence ». Jenings, lxxxix. 454 ; 2 C. B. N. S. 454. FRANCHISE. Wherever public convenience requires a new passage near an old ferry, the proximity of bitter is not actionable. Newton v. Cubitt, civ. 32 ; 12 C. B. N. S. 32. Affirmed in Ex. Ch. cvi. 864 ; 13 C. B. N. S. 864. FRAUD. I. Generally. III. Fraud by retention or voluntary II. Effect of Fraud. conveyance. I. Generally. Money of plaintiff, known to be such by the defendant, sent for a specific pur- pose to A., from whom defendant borrowed it and then applied it to payment of his own claim against A., recovered as money had and received. Litt v. Martin- dale, lxxxvi. 314; 18 C. B. 314. Defendant, who falsely represented that he had authority to buy for A., held liable for price of goods and costs of an abortive suit against A. Bandell v. Trimen, lxxxvi. 786 ; 18 C. B. 786. Untrue statements by the party interested in a policy of life insurance, made bona fide through the fraud of the " life" and his referees, do not prevent recovery. Wheelton v. Hardisty, xcii. 232 ; 8 E. & B. 232. The " life" and his referees are not the agents of the party interested, so as to make their fraud his own. Ibid. A director of a company who procures the stock to be entered on the official list of the exchange by fraudulently representing two-thirds of the shares to be paid up, as required by their rule, is liable to one who, relying on the list, buys of a third party. Bagshaw v. Seymour, xciii. 873 ; 4 C. B. N. S. 873. Acceptance by the plaintiff of an obligation for an additional sum from the father of a boy, who was apprenticed to him by a charitable society, without its knowledge, is not a fraud upon it. Westlake v. Adams, xciv. 248 ; 5 C. B. N. S. 248. Parol testimony admissible to show that defendant was induced to sign a writ- ten instrument by fraud. Hotson v. Browne, xcix. 442 ; 9 C. B. N. S. 442. What description of residence sufficient to accompany bill of sale, under 18 & 19 Vict. c. 36, s. 1, against creditors. Hewer v. Cox, cvii. 428 ; 3 E. & E. 428. Secret employment of puffer at auction will render sale void. Green v. Bav- erstock, cviii. 204 ; 14 C. B. N. S. 204. 232 FRAUD, I.— III. Concealment of indebtedness with other circumstances, evidence for jury of fraud upon guarantor. Lee v. Jones, cviii. 386 ; 14 C. B. N. S. 386. Plea of fraud not allowed at time of trial. Speeding v. Young, exi. 824 : 16 0. B. N. S. 824. Where there- is concealment amounting to misrepresentation in a contract of suretyship, it is fraudulent as to surety. Lee v. Jones, cxii. 482 ; 17 C. B. N. S. 482. Mere mis-statements in policy of insurance, providing againBt fraudulent mis- representation or concealment, not sufficient to avoid policy. Fowkes v. Assu- rance Association, cxiii. 917 ; 3 B. & S. 917. II. Effect of Fraud. Court refused to inquire whether a protection, issued under a Scotch seques- tration, was obtained by fraud. O'Brien v. Don, lxxxvii. 702 ; 1 C. B. N. S. 702. Carriers accepted goods on their common law liability where the special con- tract was obtained by fraud. Simons v. 6. W. Railway Co., lxxxix. 620 ; 2 C. B. N. S. 620. A contribution order by the guardians, which does not estimate the probable balance due to the parish is invalid, though the balances have been fraudulently appropriated by a collector of rates for other parishes. Hale v. The London Union, xcv. 863 ; 6 C. B. N. S. 863. A foreign debtor lured to England by fraud of plaintiff, discharged from ar- rest. Stein v. Valkenhuysen, xcvi. 65 ; E., B. & E. 65. One cannot rescind a contract though induced by fraud, after by his own act he has become unable to restore the parties to their original Situation. Clarke v. Dickson, xcvi. 148 ; E., B. & E. 148. Acceptor who tears the bill in two parts with the intention of destroying it, is liable to the bona fide holder obtaining it from the drawer, who fraudulently joined the pieces in such a way as to look as if the halves had been transmitted by mail. Ingham v. Primrose, xcvii. 82 ; 7 C. B. N. S. 82. Quaere, can a holder of shares, who, by trusting blank transfers to his broker, enables him, by forging an attestation to induce the company to transfer the shares to bona fide purchasers, have the register rectified, under 19 & 20 Vict. c. 47, s. 25, and 20 & 21 Vict. c. 14, s. 8, and his name restored? Ex parte Swan, xcvii. 400 ; 7 C. B. N. S. 400. Breach of agreement to enter into partnership not excused by the fact that plaintiff, unknown to defendant, had acted with fraud and dishonesty to a former partner. Andrewes v. Garstin, c. 444 ; 10 C. B. N. S. 444. Directors of a corporation are personally liable for false statements in the re- port to stockholders, on the faith of which plaintiff buys stock. Scott v. Dixon, oii. 1099; 1 E. &E. 1099. Contract of indemnity made at request of defendant not invalidated because plaintiff for a private reason withheld a material fact. Way v. Hearn, cvi. 292; 13 C. B. N. S. 292. A guaranty of the amount of a judgment tainted by fraud is not binding. Clay ». Ray, cxii. 188 ; 17 C. B. N. S. 188. When notes are given to creditor to induce him to sign composition deed, the consideration is illegal. Ibid. Where there is fraudulent concealment it will avoid contract of suretyship. Lee v. Jones, cxii. 482; 17 C. B. N. S. 482. III. Fraud by retention or voluntary conveyance. Bill of sale void as to creditors, under 17 & 18 Vict. c. 36, unless description of residence and occupation is filed with it. Hatton v. English, xc. 94 ; 7 E. & B. 94. Bona fide bill of sale in consideration of a past debt and an advance is good against creditors, though the debtor remain in possession with his name overthe door. Weaver v. Joule, xci. 309 ; 3 C. B. N. S. 309. Payment by a debtor on the eve of bankruptcy without a demand by the cred- itor, is not necessarily a fraudulent preference. Bills v. Smith, cxviii. 314; 6 B. & S. 314. FRAUDS, STATUTE OF, I.— III. 233 FRAUDS, STATUTE OF. I. Wills. VI. Delivery and acceptance within II. Contracts relating to realty. the exception to the 17th sect. III. What is a promise for the debt of VII. Goods, wares and merchandise another. within meaning of the 17th IV. Contract not to be performed with- sect. in a year from the making. VIII. Sufficient note in writing within V. Contract for sale within the (statute 17th sect. of Frauds. IX. Contract in writing within the 4th sect. I. Wills. Will cannot be revoked by mere abandonment. Andrew v. Motley, civ. 514 ; 12 C. B. N. S. 514. II. Contracts relating to realty. Shares in a mine worked on the cost-book principle not an interest in land. Powell v. Jessopp, lxxxvi. 336 ; 18 C. B. 336. Shares in cost-book mine not necessarily interest in land. Walker v. Bartlett, lxxxvi. 845 ; 18 C. B. 845. Agreement by parol to return a certain part of the consideration paid for an interest in a house, provided a license could not be obtained, is not within the statute. Green v. Saddington, xc. 503 ; 7 E. & B. 503. Verbal agreement by plaintiff with a tenant to take possession of a brickyard, take the plant and bricks at a valuation, and that the defendant should pay all the rent due, and induce the landlord to accept plaintiff as a tenant, is void un- der s. 4. Hodgson v. Johnson, xcvi. 685 ; E., B. & E. 685. Any agreement between landlord and tenant, which results in a change of possession, amounts to a surrender by act and operation of law, under 29 Car. 2, c. 3. Phene v. Popplewell, civ. 334 ; 12 C. B. N. S. 334. An agreement for board and lodging by the year is not a contract for an inter- est in or concerning land. Wright v. Stavert, cv. 721 ; 2 E. & E. 721. When one paper refers to another in which terms of agreement are stated it is sufficient within Statute of Frauds. Fitzmaurice v. Bayley, (H. of L.) cvii. 772; 3 E. & E. 772. Affirming Ex. Ch., xcii. 664 ; 8 E. & B. 664. Keversing Q. B , lxxxviii. 868 ; 6 E. & B. 868. But it must refer with sufficient directness and state duration of term. Ibid. And the ratification of an insufficient paper could not correct it. Ibid. Recovery can be had for breach of written agreement, not by deed, giving liberty to dig and carry away cinders. Smart v. Jones, cix. 717 ; 15 C. B. N. S. 717. An instrument void as a lease may be good as an agreement for leasing. Hayne v. Cummings, cxi. 421 ; 16 C. B. N. S. 421 ; Tidey v. Mollett, cxi. 298 ; 16 C. B. N. S. 298. When balance is settled in an account stated, and one of the items is for pur- chase-money of land, the contract being verbal and against the Statute of Frauds, the balance can be recovered in an action of account stated. Laycock v. Pickles, exvi. 497 ; 4 B. & S. 497. III. What is a promise for the debt of another. To bring it within the statute the promise must be made to the original cred- itor. Reader v. Kingham, cvi. 344 ; 13 C. B. N. S. 344. An agreement by C. if A. would supply goods to B. upon month's credit, to pay A. in cash, less three per cent., and take B.'s bill without recourse. Mallett v. Bateman, cxi. 530 ; 16 C. B. N. S. 530. A statement in writing to become responsible for the payment of money according to a contract, the contract containing a clause for extra work, will be binding as a guaranty for the extra work. Andrews v. Lawrence, cxv. 768 ; 19 C. B. N. S. 768. Affirmed in Exchequer Chamber, Ibid. 779. 234 FRAUDS, STATUTE OF, III.— VI. And even if an immaterial alteration be made after the giving of the guaranty, it will still be binding. Ibid. Entering into a recognisance of bail by A., at the request of another, for the appearance of B. to answer a criminal charge, is not a " special promise to answer for the debt, default or miscarriage of another person " within s. 4 of the Statute of Frauds, 29 Car. 2, c. 3. Cripps v. Hartnoll, cxvi. 414; 4 B. & S. 414. Green v. Cresswell, 10 A. & B. (37 E. C. L. R.) 453, commented on. Ibid. IV. Contract not to be performed within a tear from the making. A contract of hiring made March 24th to commence on the 25th, is not void for want of a memorandum. Cawthorne v. Cordrey, cvi. 406 ; 14 C. B. N. S. 406. V. Contract for sale within the Statute of Frauds. Contract for sale of goods of the value of 101. is within the statute, though it include something else and the price of each is not determined. Harman v. Reeve, lxxxvi. 587 ; 18 C. B. 587. A promise by the assignee of a contract of sale to pay the original vendor, in consideration of his giving up his lien, is not within the statute. Fitzgerald v. Dressier, xciv. 885 ; 5 C. B. N. S. 885. Also xcvii. 374 ; 7 C. B. N. S. 374. VI. Delivery and acceptance within the exception to the 17th section. Where defendant, in possession of goods bought of plaintiff by A., agrees, with the consent of A., to become purchaser himself, no written contract is re- quired between A. and plaintiff. Douglas ». Watson, lxxxiv. 685 ; 17 C. B. 685. Goods sold and delivered to defendant, who alleged they were received as security, sufficient acceptance. Tomkinson v. Staight, lxxxiv. 697 ; 17 C. B. 697. Acceptance upon the terms of the bargain not requisite. Ibid. Where plaintiff testified that the vendee, alleging the seed to be hot and mouldy, spread it out thin to dry, but that plaintiff, vendor, did not authorize the act, and that the seed was in good condition, held, evidence of acceptance. Parker v. Wallis, lxxxv. 21 ; 5 E. & B. 21. Where the sale of a horse was made, but the vendor retained him as a loan, there was sufficient acceptance. Marvin v. Wallis, lxxxviii. 726 ; 6 E. & B. 726. No delivery arid acceptance, where tenant in possession with an option to buy under a verbal contract, tenders the money and it is refused. Taylor v. Wake- field, lxxxviii. 765 ; 6 E. & B. 765. Where buyer takes samples from the bulk after purchase, it is sufficient. Gardner v. Grout, lxxxix. 340 ; 2 C. B. N. S. 340. Direction by vendee that the goods should be sent to him by sea, from a cer- tain wharf, followed by delivery at the wharf whence they were sent by the wharfinger and lost, is not an acceptance within the statute. Hart v. Bush, xcvi. 494 ; E., B. & E. 494. Where defendant selected specific goods, ordering them to be sent to a wharf where he had for years stored similar goods, and they were sent and delivered thence on his order, it is sufficient. Cusack v. Robinson, ci. 299 ; 1 B. & S. 299. Acceptance may be before delivery. Ibid. Where a carrier had warehoused the goods for vendee, who by custom had a right to compare them with sample before accepting, and vendee, after compar- ing, did not object, but being embarrassed ordered them not to be sent home at that time, held no acceptance. Nicholson v. Bower, cii. 172; 1 E. & E. 172. An offer must be accepted in writing by the vendor before the sale is complete, so as to vest title in vendee as to third parties. Felthouse v. Bindley, ciii. 869 ; 11 C. B. N. S. 869. Queere, by Willes, J. Was there any acceptance at all ? Ibid. Where on sale by sample, the buyer's foreman before prompt day attended at the warehouse of seller's factor, saw the goods weighed, compared them and ad- justed allowances, it was a sufficient acceptance. Simmonds v. Humble, cvi. 258 ; 13 C. B. N. S. 258. When defendant had ordered goods to be shipped with other goods of his own, FEAUD3, STATUTE OF, VI.— IX. 235 and the bill of lading had been m&do out by his direction and received by him after repaying the plaintiff the freight and kept for a year, it is evidence of a delivery. Currie v. Anderson, cv. 592 ; 2 E. & E. 592. On a sale by sample before the buyer has ascertained whether the bulk corre- sponds there is no acceptance. Smith v. Hudson, cxviii. 431 ; 6 B. & S. 431. VII. Goods, wares and merchandise within meaning of the 17th section. An agreement to make an artificial set of teeth. Lee v. Griffin, ci. 272 ; 1 B. & S. 272. VIII. Sufficient note in writing within 17th section. Entry of goods, with prices, in order book, on fly leaf of which were the names of the plaintiffs, signed by the defendant, sufficient. Sari v. Bourdillon, lxxxvii. 188 ; 1 C. B. N. S. 188. Though one article entered as '' candlestick complete," and it was proven that a gallery for a musquito shade was to be added. Ibid. Though it did not mention that payment to be made by check of third party. Ibid. A note signed by defendants as brokers, stating, •' sold this day,'' for T., "to our principal," accompanied by a note of T., also brokers, stating that they had sold to defendants, for account of the plaintiff, and by evidence of a custom that a broker, buying for an undisclosed principal, is liable, is sufficient. Humfrey v. Dale. xc. 266 ; 7 E. & B. 266. Affirmed in Exchequer Chamber, xcvi. 1004 ; E., B. & E. 1004. A letter may be sufficient, though it repudiate liability. Bailey v. Sweeting, xcix. 843 ; 9 C. B. N. S. 843. To a letter asking appointment of a day for fitting artificial teeth, a reply regretting that health prevents taking advantage of the early day, and fearing inability for some days, not sufficient. Lee v. Griffin, ci. 272 ; 1 B. & S. 272. Where an offer of purchase has been made in writing, there is no sale until it is accepted in writing, so as to vest title in vendee as to third parties. Felthouse v. Bindley, ciii. 868 ; 11 C. B. N. S. 868. Sold note of broker, acting as agent of both parties sufficient, as to buyer, to satisfy requirements of statute, in action by seller. Parton v. Crofts, cxi. 11 : 16 C. B. N. S. 11. IX. Contract in writing within the 4th section. A written proposal, signed by defendant and accepted by plaintiff orally, is sufficient. Smith v. Neale, lxxxix. 67 ; 2 C. B. N. S. 67. Where what the plaintiff is to do, constituting the entire consideration, can be performed within a year, and iij does not appear that any part was to be post- poned beyond that time, it is not within 4th section. Ibid. An agent exceeding his authority, having made an agreement which was an assignment of a term or an under lease, the principal wrote, " I must support him in all hehas done," but did not refer to the duration of the term, held suf- ficient memorandum in writing. Fitzmaurice v . Bayley, lxxxviii. 868 : 6 E. & B. 868. Reversed in Exchequer Chamber, xcii. 664 ; 8 E. & B. 664, which decision was affirmed in H. of L., cvii. 772 ; 3 E. & E. 772. A promise, by the assignee of a contract of sale, to pay the original vendor, in consideration of his giving up his lien, is not within the statute. Fitzgerald v. Dressier, xciv. 885 ; 5 C. B. N. S. 885. Also reported, xcvii. 374 ; 7 C. B. N. S. 374. _ Though, since 19 & 20 Vict. c. 19, s. 3, parol evidence may supply the con- sideration for a guaranty, it cannot explain the promise. Holmes v. Mitchell, xcvii. 361; 7 C. B. N. S. 361. The writing may be explained by parol evidence to show what duties a party to it engaged to perform. Price v. Mouat, ciii. 508 ; 11 C. B. N. S. 508. A memorandum of an agreement to be answerable for the debt of another, is not sufficient, under 4th section of Statute of Frauds, unless it contains the 2G6 FRAUDS, STATUTE OF, IX. GAME. Barnes of both parties to the contract. "Williams v. Lake, cv. 350 ; 2 E. & E. 350. It need only be signed, however, by party to be charged. Ibid. A mere proposal for renting a house, not specifying commencement or dura- tion of term, not sufficient memorandum. Clark v. Fuller, cxi. 24; 16 C. B. N. S. 24. And this would be so where the agent was not authorized to act for the person making the proposal, even though the agent had informed his principal of the proposal, with the assent of the party making it. Ibid. FREEHOLDS. One who holds in fee land which by custom of manor is conveyed, by ordi- nary assurance, without license of lord, enrolment, or surrender, but who at pur- chase acknowledges to hold of lord by free deed, fealty, suit of court, yearly rent, and pavs relief, is a freeholder, within 8 Hen. 6, c. 7. Passingham v. Pitty, lxxxiv."299 ; 17 C. B. 299. A pile driven into the bed of the river for the use of a wharf, used twenty years without objection from the owner of the soil, presumed not to be annexed to the freehold. Lancaster v. Eve, xciv. 717 ; 5 C. B. N. S. 717. GAME. Using a snare to take game without a certificate is an offence, punishable on summary conviction, within 14 & 15 Vict. c. 99, s. 3. Cattell v. Ireson, xcvi. 91 ; E., B. &E. 91. The servant of a tenant, having permission to sport over the farm, being au- thorized to shoot a rabbit for his, the tenant's, wife, is not liable to a penalty, under s. 30 of 1 & 2 Wm. 4, c. 32. Padwick v. King, xcvii. 88 ; 7 C. B. N. S. 88. Complaint of trespass in pursuit of game, under 1 & 2 Wm. 4, c. 32, s. 30, may be made by one having no interest in the land. Morden v. Porter, xcvii. 641 ; 7 C. B. N. S. 641. Nor does ex post facto leave and license of the occupier condone the offence. Ibid. Nor is the offender less guilty because he bona fide believes he has a license. Ibid. A tenant, whose landlord has reserved the right of killing game, may hire men to kill rabbits on the land without making them liable to conviction, under 1 & 2 Win. 4, c. 32. Spicer v. Barnard, cii. 874 ; 1 E. & E. 874. A., on his own land, killed a pheasant on B.'s land, and went on B.'s land and picked it up. Held, a trespass " in search or pursuit of game," under 1 & 2 Wm. 4, c. 32, s. 30. Osbond v. Meadows, civ. 10 ; 12 C. B. N. S. 10. Owner of land has a property in game killed thereon. Blades v. Higgs, civ. 501,12 0. B.N. S. 501. Affirmed in Exchequer Chamber, cvi. 844 : 13 C. B. N. S. 844 ; and in H. of L., Ibid. 866. The word " game" in 1 & 2 Wm. 4, c. 32, s. 4, prohibited to be sold, &c, after certain specified periods, includes live game. Loome v. Bailey, cvii. 444 ; 3 E. & E. 444. Firing at game from highway is a trespass, within 1 & 2 Wm. 4, c. 32, s. 30. Mayhew v. Wardley, cviii. 550; 14 C. B. N. S. 550. And two persons jointly engaged in the unlawful act may be severally con- victed. Ibid. GAME. GAMING. GAOL. GIFT. 237 Owner of dog, with tendency to destroy game, liable to owner of land, where dog; has destroyed game. Read v. Edwards, cxii. 245; 17 C. B. N. S. 245. Under 1 & 2 Wm. 4, c. 32, s. 30, a claim of prescriptive right to kill game, there being no color for it, does not oust jurisdiction of justices. Cornwell v. Sanders, cxiii. 2Q6 ; 3 B. & S. 206. Nor an assertion that land was in the occupation of third persons, and not the lord of the manor. Ibid. Under 25 & 26 Vict. c. 114, s. 2, a conviction may be had for poaching, upon circumstantial evidence. Evans v. Botterill, cxiii. 787 ; 3 B. & S. 787. It need not be shown that any particular land was entered upon. Ibid. A person remaining in a carriage and receiving a hare, shot by a companion on adjacent ground, is an aider and abetter, within 11 & 12 Vict. c. 43, a. 5. Stacey v. Whitehurst, cxiv. 344 ; 18 C. B. N. S. 344. It seems that he would have been liable as a joint trespasser, under 1 & 2 Wm. 4, c. 32, s. 30. Ibid. Reservation in a lease of right of " shooting, fishing and sporting," gives the right to follow and shoot such animals as are in common parlance the subjects of sport. Jeffryes v. Evans, cxv. 246 ; 19 C. B. N. S. 246. Such a reservation is not confined to " game" in its strict sense. Ibid. And therefore tenant cannot destroy the rabbits on the place. Ibid. GAMING. Defendant gave I. 0. U. for stakes lost at billiards. Held gaming within 8 & 9 Vict. c. 109, s. 18, and not contribution within proviso. Parsons v. Alexander, lxxxv. 263 ; 5 E. & B. 263. The use of a spot under a tree in Hyde Park for gaming purposes, is not a using a place, within the meaning of 16 & 17 Vict. c. 119, s. 1. Doggett v. Cat- terns (reversing cxii. 669 ; 17 C. B. N. S. 669), cxv. 765 ; 19 C. B. N. S. 765. It seems, that the person must be the owner or occupier of the place. Ibid. GAOL. A local act to provide for maintenance of borough prisoners in county gaol not a contract within 5 & 6 Vict. c. 98, s. 18, and is repealed by that act. Bramston v. Mayor of Colchester, lxxxviii. 246 ; 6 E. & B. 246. A gaol in which plaintiff was confined when suit brought is not the place where she "dwells," within 9 & 10 Vict. c. 95, s. 128. Dunston v. Paterson xciv. 267; 5 C. B. N. S. 267. GIFT. To complete a gift inter vivos, it is enough if the conduct of the parties shows that the ownership has been changed. Winter v. Winter, ci. 997 ; 1 B. & S. 997. A parol gift, unaccompanied by delivery of chattels is inoperative. Bourne v. Fosbrooke, cxiv. 515; 18- C. B. N. S. 515. Subject of gifts inter vivos, and gifts mortis causa, considered, Am. Ed. note. Ibid. A husband is entitled, as against the donee of the wife, to all the chattels owned by her. Ibid. 238 GOODS SOLD AND DELIVEEED. GKANT. GOODS SOLD AND DELIVEKED. Qucere, whether vendee may reject a crate containing distinguishable unordered goods along with those ordered, all being charged in one invojce and the place of delivery being distant. Levy v. Green, xcii. 575 ; 8 E. & B. 575. Husband liable for necessaries of wife driven from him by cruelty, even though she have an allowance, found by the jury to be insufficient. Baker ». Sampson, cviii. 383; 14 C. B. N. S. 383. "Where partnership exists among three for selling cargo to be furnished by each in certain proportions, no action will lie for price of goods bought by one as his share for purposes of sale against other two. Heap v. Dobson, cix. 460 ; 15 C. B. N. S. 460. Will not lie for necessaries furnished to wife, when purchase is forbidden by husband, telling her to apply to him, even though the fact was unknown to tradesman. Jolly v. Rees, cix. 628 ; 15 C. B. N. S. 628. When contract rescinded by one party, value of goods already delivered and kept by him, may be recovered from him. Bartholomew v. Markwick, cix. 711 ; 15 C. B. N. S. 711. Will lie against buyer at end of the month, upon contract explained to mean cash at end of the month less 2J per cent., or at election of buyer a bill of three months, where buyer refuses to accept bill. Rugg v. Weir, cxi. 471 ; 16 C. B. N. S. 471. GKANT. When grantee holds by a corn-rent or an annual sum of money in lieu there- of, he has the right to elect which he will pay. Blewett v. Jenkins, civ. 16 ; 12 C. B. N. S. 16. A grant to owner of close A. to cut all trees on close B. does not pass to as- signee of close A. Bailey v. Stephens, civ. 91 ; 12 C. B. N. S. 91. A right of way does not pass by the word " appurtenances" in a deed of partition. Worthington v. Gimson, cv. 618 ; 2 E. & E. 618. A right of way, not being an apparent and continuous easement, does not pass as incident to separate enjoyment of portion of land severed in case of a partition. Ibid. By grant from crown, land was vested in A. Subsequently commissioners of woods and forests conveyed to B., and, under various acts of parliament, large improvements on docks, &c, were made, held, that A. could recover land in ejectment. Vyner v. The Mersey Docks, cviii. 753 ; 14 C. B. N. S. 753. The right being vested will not be disturbed. Ibid. There was nothing in the way of estoppel or taking of property by parliament to prevent recovery. Ibid. Qucere, what would be the rights of the builders of the docks to any easement or the value of the improvements. Ibid. Difference between grant and license discussed in note of Am. editor. Bird v. G. E. Railway Co., cxv. 268 ; 19 C. B. N. S. 268. GUARANTY, I.— III. 239 GUAKANTY. I. Generally. III. Discharge of. II. Construction of. I. Generally. An executor, having promised to pay a creditor of a devisee on receiving au- thority from the latter, it was held that the authority need not specify the amount. Horlor v. Carpenter, xci. 172 ; 3 C. B. N. S. 172. Where the guaranty is to the covenantees jointly, they may sue jointly, though their interest in the fund be several. Pugh v. Stringfleld, xciii. 364 ; 4 C. B. N. S. 364. Though since 19 & 20 Vict. c. 19, s. 3, parol evidence may supply the con- sideration for a guaranty, it cannot explain the promise. Holmes v. Mitchell, xcvii. 361 ; 7 C. B. N. S. 361. A guaranty to indemnify for discounting bills for specified time, may be re- voked at any time as to bills not then discounted. Offord v. Davies, civ. 748 ; 12 C- B. N. S. 748. But see Bradbury v. Morgan, 31 Law J. Exch. 462. Ibid. An agreement by C, if A. would supply goods to B. upon month's credit, to pay A. in cash, less 3 per cent, and take B.'s bill without recourse, the defend- ant being also interested in the work, held a contract to answer for the debt, default or miscarriage of another within sect. 4 of the Statute of Frauds. Mallett v. Bateman, cxi. 530 ; 16 C. B. N. S. 530. A guaranty for the amount of a judgment tainted by fraud, is not binding. Clay v. Ray, cxii. 188 ; 17 C. B. N. S. 188. A guaranty, like any other contract, may be either absolute or conditional. Barker v. McAndrew, cxiv. 759 ; 18 C. B. N. S. 759. II. Construction of. In a guaranty of payment on December 13th then next, in consideration of plaintiffs forbearing to sue A., forbearance until that date was condition pre- cedent. Rolt v. Cozens, Ixxxvi. 673; 18 C. B. 673. Semble, that forbearance until that date only was meant. Ibid. Guaranty if, on a sale, a property does not bring a certain price, means a com- pleted sale. Moor v. Roberts, xci. 830 ; 3 C. B. N. S. 830. A guaranty not to exceed a certain sum, to three persons, that A. will com- plete unfinished buildings on the properties of each respectively, is ioint. Puo-h v. Stringfleld, xci. 2; 3C.B.N. S.2. Plaintiff guaranteed to defendant that B. would pay iwo bills for 100Z. and 62Z., and defendant guaranteed to plaintiff the repayment of 300/. for goods ordered by C, held that the consideration was the promise and not the perform- ance. Christie v. Borelly, xcvii. 561 ; 7 C. B. N. S. 561. An agreement to be responsible for all costs that might be sustained, held to include costs incurred but not yet paid. Spark v. Heslop, cii. 563 ; IE. & E. 563. Where guaranty is dependent upon work being performed, it is a condition precedent, and performance must be shown, before recovery can be had. Hill v. Nuttall, cxii. 262 ; 17 C. B. N. S. 262. In a contract providing for extra pay by the owners where extra work is done on a vessel, a guarantor is liable for the extra work. Andrews v. Lawrence, cxv. 768; 19 C. B. N. S. 768. ' Affirmed in Exchequer Chamber. Ibid. 779. III. Discharge of. A continuing guaranty which the guarantor may determine by notice, is dis- charged by bankruptcy. Boyd v. Robins, xciii. 749 ; 4 C. B. N. S. 749. Am. Ed. note, Ibid. 759. Reversed in Exchequer Chamber, xciv. 597 ; 5 C. B. N. S. 597. Concealment of indebtedness, with other circumstances, evidence for the jury of fraud, which will discharge guarantor. Lee v. Jones, cviii. 386 ; 14 C. B. N. S. 386. r 240 GUARANTY, III. HABEAS CORPUS, L, II. Where the insertion of a word after the giving of the guaranty will have no material effect, it will not release the guarantor. Andrews v. Lawrence, cxv. 7C8 ■ 19 0. B. N. S. 768. Affirmed in Exchequer Chamber. Ibid. 779. Guaranty to a banker of moneys that may at any time become due by a firm, is not a continuing guaranty at common law, or under 19 & 20 Vict. c. 97, s. 4, if the members of the firm change. Backhouse v. Hall, cxviii. 507 ; 6 B. & S. 507. GUARDIAN. Mother, as guardian for nurture, entitled to custody of a child of ten years of age, and court will not consider its intelligence or preference. Kegina v. Clarke, xc. 186 j 7 E. & B. 186. HABEAS CORPUS. I. When granted. II. Custody of infant children. I. When granted. Granted to bring prisoner for purpose of testifying before an arbitrator. Mars- den v. Overbury, lxxxvi. 34 ; 18 C. B. 34. Not for the purpose of bringing up a prisoner to move for a new trial. Benns v. Mosley, lxxxix. 116 ; 2 C. B. N. S. 116. Not grantable, in general, when the party is in execution on a criminal charge after judgment. Ex parte Lees, xcvi. 828; E., B. & E. 828. Not on commitment by a court of assize for contempt. Ex parte Fernandez, c. 3 ; 10 C. B. N. S. 3. Under 20 Vict. c. 13, ss. 40, 41, Mutiny Act, valid order for detention of mili- tary prisoner must be given or he will be released. Be Allen, cvii. 338 ; 3 E. & E. 338. Hence such a prisoner transferred to a prison in England from India, without prison being specified, will be released. Ibid. Although commander-in-chief in England had designated prison, he having no such power. Ibid. Qucere, whether the power of removal to England is given by the act. Ibid. Will issue from the superior courts at Westminster to all parts of the dominion of the crown. Ex parte Anderson, cvii. 487 ; 3 E. & E. 487. Even though a local judicature has been established there. Ibid. Hence it will issue to province of Canada. Ibid. Extends to the Isle of Man, notwithstanding the act of 25 & 26 Vict. c. 20. Ex parte Brown, cxvii. 280; 5 B. & S. 280. II. Custody of infant children. Legal custody of female child under sixteen belongs to the father. Regina v. Howes, cvii. 332 ; 3 E. & E. 332. Between that age and twenty-one, court will consider whether the child has exercised a wise choice. Ibid. Under sixteen, though child leaves voluntarily, party inducing it liable to prosecution, under 4 & 5 P. & M. Ibid. Unless reason for detention at common law or by compliance with statutory provision. Ibid. HAWKER. HEALTH. 241 HAWKER. The sale in public market which exempts a party from penalties under the Hawker's Act, 50 Geo. 3, c. 41, requires a legal market and not one merely de facto. Benjamin v. Andrews, xciv. 299 ; 5 0. B. N. S. 299. A person going from L. to H. with a lot of goods and there disposing of them is " a trading person going from town to town," within 50 Geo. 3, c. 41, s. 6. Manson v. Hope, ex. 498 ; 2 B. & S. 498. As such, selling the goods without a license, he is liable to conviction, under s. 17. Ibid. HEALTH. The words "dust, ashes, rubbish, filth, ..manure, dung and soil," in 11 & 12 Vict. c. 63, do not include snow. Regina v. Wood, lxxxv. 49 ; 5 B. & B. 49. Who is " person" within s. 139 of 11 & 12 Vict. u. 63. Newton v. Ellis, lxxxv. 115; 5E. &B. 115. Provisional order of board of health extending public health act to district in which is a turnpike, incorporating s. 50, of Towns Improvement Clauses Act, which forbids trustees of turnpikes from levying toll, and confirmed by act so far as authorized by Public Health Act, is invalid. Clayton v. Fenwick, lxxxviii. 114 ; 6 E. & B. 114. Under Public Health Act, 11 & 12 Vict. c. 63, it rests with the local board to determine what is reasonable remuneration for conducting its election. Ex parte Metcalfe, lxxxviii. 287; 6 E. & B. 287. Where one-third of a local board of nine were to go out on a certain day, and before that time, three having ceased to be members, these three were selected to go out and three new members were elected, the board was held legally consti- tuted. Howitt v. Manfull, lxxxviii. 736 ; 6 E. & B. 736. . A rate, under the Public Health Act of 1848, is not void because not published in the same manner as poor rate. Le Feuvre v. Miller, xcii. 321 ; 8 E. & B. 321. Action lies against a local board eo nomine for negligence. Southampton Bridge Co. v. Local Board, xcii. 801 ; 8 E. & B. 801. Where local board of health consented to judgment with stay of execution, a mandamus to compel them to levy a rate may issue within six months from ex- piration of the stay. Regina v. Rotherham Local Board, xcii. 906 ; 8 E. & B. 906. Houses using a sewer in an adjoining district not assessable by the local board of the latter. Regina v. Latham, xcii. 915 ; 8 E. & B. 915. Contractor employed by the board of health is personally liable for injuries caused by his negligence, and is not protected by Health of Towns Act. Arthy v. Coleman, xcii. 1093 ; 8 E. & B. 1093. Contract for over 10Z., with the local board of health, not under seal, is void, under 11 & 12 Vict. c. 63. Frend v. Dennett, xciii. 576 ; 4 C. B. N. S. 576. A complaint, under 11 & 12 Vict. c. 63, must, under 11 & 12 Vict. c. 43, be made within six months after the amount is ascertained and notice given. Ed- dleston v. Francis, xcvii. 568 ; 7 C. B. N. S. 568. Though a fountain be a public nuisance, the use of its waters may be limited by the board of health to a certain purpose, and taking them for another purpose is an offence, under 10 & 11 Vict. c. 17, s. 59. Hildreth v. Adamson, xcviii. 587 ; 8 C. B. N. S. 587. Upon a contract, made by five members of the local board, covenanting for themselves and their heirs, &c., but on behalf of the board, the clerk is the pro- perperson to bring suit. Cobham v. Holcombe, xcviii. 815 ; 8 C. B. N. S. 815. What is a highway, within s. 69, of the Public Health Act, 11 & 12 Vict. c. 63. Wallington v. White, c. 128 ; 10 C. B. N. S. 128. Under 18 & 19 Vict. c. 120, the vestry may convert an insufficient privy into a water-closet. Vestry of St. Luke's v. Lewis, ci'. 865 ; 1 B. & S. 865. The arbitration clauses, of 11 & 12 Vict. c. 63, do not apply where liability to Vol. III.— 16 242 HEALTH. HEIK. HERIOT. HOLIDAY. make compensation is denied. Regina v. Burslem Board of Health, cii. 1077 ; 1 E. & E. 1077. Brickmaking is not necessarily a noxious trade, within 11 & 12 Vict. c. 63 Board of Health v. Hill, cvi. 479 ; 13 C. B. N. S. 479. Power of local board to enact by-laws, under 21 & 22 Vict. e. 34, restrained by proviso so as not to interfere with vested rights. Burgess v. Peacock, cxi 624 ; 16 C. B. N. S. 624. Injuriously affecting a watercourse by local board, without consent, is not a subject of compensation, under 21 & 22 Vict. c. 98, but ground for an action. Regina v. Darlington, cxvii. 515 ; 5 B. & S. 515. Affirmed in Exchequer Chamber, cxviii. 662 ; 6 B. & S. 562. A natural stream, draining agricultural lands, does not, because it comes within the ambit of a borough, and some houses drain into its lower end, become a sewer, within 11 & 12 Vict. c. 63, s. 43. Regina v. Godmanchester, cxvii. 886 : 5 B. & S. 886. Affirmed in Exchequer Chamber. Ibid. 936. Under the Public Health Act, 11 & 12 Vict. c. 63, s. 149, a rate without the seal of the local board is invalid. Regina v. Worksop, cxvii. 951 ; 5 B. & S. 951. The same rate may include past and future expenses. Ibid. It should not lump expenses of a different class, but qucere, whether this defect would invalidate the rate. Ibid. Under 11 & 12 Vict. c. 63, s. 89, a mandamus may issue to compel the local board to levy a rate in aid cf a judgment, within six months after it has been ob- tained, though the action was commenced more than six months after the cause accrued, if the delay was not undue. Worthinston v. Hulton, cxviii. 943 ; 6 B. 6 S. 943. HEIR. In ejectment to determine who was heir of a lunatic decedent, declarations of relatives, as to pedigree, made in depositions under the commission of lunacy, admissible. Gee v. Ward, xc. 509 ; 7 E. & B. 509. HERIOT. The custom of the manor showing that a heriot is due from every tenant, upon alienation, and nothing more, only one heriot is due upon an alienation by several joint tenants. Padwick v. Tyndale, cii. 184 ; 1 E. & E. 184. And the claim of the lord for compensation upon a valuation, under 15 and 16 Vict. c. 51, must be so estimated. Ibid. HOLIDAY. Party not bound to plead until day after holiday, when time expires on such a day. Mumford v. Hitchcocks, cviii. 361 ; 14 C. B. N. S. 361. HUSBAND AND WIFE, I.— V. 243 HUSBAND AND WIFE. I. Sufficiency of marriage. (6) Liability for debts of Wife II. Action for breach of promise of contracted before marriage, marriage. (c) Wife's agency. III. Husband's right to the Wife's pro- (d) Liability for torts of Wife. perty. VII. Actions against. IV. Wife's interest and power over her VIII. When competent to be witnesses. own property. IX. Separation agreements. V. Conveyance under statutes. X. Action for criminal conversation. VI. Husband's liability for Wife. XI. Divorce, (a) Liability for necessaries. XII. Dower. . I. Sufficiency of marriage. The marriage of a man with the daughter of his deceased wife's illegitimate half sister is void. Regina v. Brighton, ci. 447 ; 1 B. & S. 447. In a Roman Catholic marriage, duly proved in other respects, it will be pre- sumed that place was duly licensed and registrar present. Sichel v. Lambert, cix. 781 ; 15 C. B. N. S. 761. II. Action for breach of promise of marriage. New trial not granted because of excessive damages, unless jury mistaken or prejudiced. Smith v. Woodfine, lxxxvii. 660 ; 1 C. B. N. S. 660. Affidavit of defendant cannot be used to explain evidence. Ibid. That, after promise and before breach, defendant became afflicted with a dis- ease, making him incapable of marriage without danger to life, and therefore unfit for the married state, is no defence. Hall v. Wright, xcvi. 746 ; E., B. & E. 746. Am. Ed. note. Ibid. 795. That at the time of the promise plaintiff was engaged to another person, which fact she did not disclose, and of which defendant was ignorant, is no defence. Beachey v. Brown, xcvi. 796 ; E., B. & E. 796. Prior temporary insanity of plaintiff' no defence. Baker v. Cartright, c. 124 : 10 C. B. N. S. 124. III. Husband's right to Wife's property. Bona fide payment by debtor to feme covert, executrix, at her request, without knowledge of non-assent of husband, who afterwards refused to permit her to act, and prevented probate, good as against co-executor. Pemberton v. Chap- man, xc. 210 ; 7 E. & B. 210. Affirmed in Exchequer Chamber, xcvi. 1056 ; E., B. & E. 1056. The interest of the husband of plaintiff in goods converted to defendant's use before plaintiff's marriage, goes to the assignees in bankruptcy of the husband, and they must unite with plaintiff in the suit. Richbell v. Alexander, c. 324 : l'O C. B. N. S. 324. Mortgage executed by wife without joinder of husband, is void as to her. Sharpe o. Gibbs, cxi. 527 ; 16 C. B. N. S. 527. IV. Wife's interest and power over her own property. May make a voluntary assignment to her husband of money left to her for her sole and separate use. Sloper v. Cottrell, Ixxxviii. 497 ; 6 E. & B. 497. The power to rescind a protection order, under 20 & 21 Vict. c. 85, s. 21, is restricted to the magistrate by whom it was granted. Regina v. Arnold cxvii. o22 j o B. & S. 322. V. Conveyance under statutes. Certificate of acknowledgment of deed by married woman beyond the seas, under d & 4 Wm. 4, c. 74, received and filed though affidavit did not state place, there being evidence of it m the documents. In re Partridge, lxxxiv. 18 • 17 C. B. 18. ' 244 HUSBAND AND WIFE, V. Where husband corresponds with, and sends money to wife, they are not " liv- ing apart," under 3 & 4 ffm. 4, c. 74. In re Squires, lxxxiv. 176; 17 C. B. 176. Concurrence of husband in conveyance dispensed with, under 3 & 4 Wm. 4, c. 74, where he had gone away nineteen years before, and wife had since remar- ried. In re Yarnall, lxxxiv. 189; 17 C. B. 189. Where mistake in first name of commissioner to take acknowledgment of mar- ried woman, upon affidavits showing he was person intended, papers received and filed. In re Price, lxxxiv. 708 ; 17 0. B. 708. Rule refused on affidavit showing that husband and wife lived apart by mutual consent, but not his refusal to convey. Ex parte Anne Trenery, lxxxvii. 187 ; 1 C. B. N. S. 187. Affidavit must contain description of applicant's husband. In re Sarah Gard- ner, lxxxvii. 215 ; 1 C. B. N. S. 215. Commission to take the acknowledgment of wife filed where affidavit set forth that the commissioners were not in any manner interested, and jurat did not show where sworn. In re Chandler, lxxxvii. 3^3 ; 1 C. B. N. S. 323. Affidavit verifying certificate of acknowledgment of wife should identify the persons signing as the commissioners. In re Vaughan, lxxxvii. 314 ; 1 C. B. K. §. 314. Affidavit, under 3 & 4 Wm. 4, describing applicant as " wife or widow" not sufficient. In re Anderson, Ixxxix. 118 ; 2 C. B. N. S. 118. Wife authorized to convey, under 3 & 4 Wm. 4, c. 74, the husband being a minor. In re Haigh, Ixxxix. 198; 2 C. B. N. S. 118. Where there was a deed of settlement in trust with a power of sale on the request of husband and wife in writing, held not a case for an order dispensing with his concurrence, under 3 & 4 Wm. 4, c. 74. In re Eden, xciv. 232 ; 5 C. B. N. S. 232. Time for returning a commission enlarged, where, by reason of remoteness, it proved too short. In re Booth, xciv. 540 ; 5 C. B. N. S. 540. The notarial certificate may be on paper. Ibid. A commission allowed, though the notarial certificate did not in terms verify the signature of the justice before whom the affidavit was made. Ibid. But where the certificate of acknowledgment was signed Andrew instead of Alexander, and Hoey instead of Howey, the court refused the commission although the solicitor made affidavit that he verily believed them to be the same persons. Ibid. ... . . The word territory hi the jurat being erased and state substituted, in accordance with a change of circumstances, the acknowledgment was received. In re Den- ton, xcv. 287 ; 6 C. B. N. S. 287. Acknowledgment sufficient, if commissioners certify that they believe the woman to be of full age. Ex parte Wallis, xcvii. 303 ; 7 C. B. N. S. 303. Acknowledgment allowed, though affidavit of verification did not show where taken, it being shown by affidavit. In re Jane Saunderson, xcviii. 93 ; 8 C. B. N. S.93. For an order for conveyance without husband, under 3 & 4 Wm. 4, c. 74, the affidavit, in addition to the fact that they were living apart by mutual consent and he had refused to sign, must show that she gets no allowance from him. Ex parte Fish, xcix. 715 ; 9 C. B. N. S. 715. Time for returning a commission, under 3 & 4 Wm. 4, enlarged, where it had been duly executed but delayed. In re Van Ufford, xcix. 789 ; 9 C. B. N. S. j 89. Inadvertent omission of the month in the jurat may be supplied by affidavit. Ibid. Time for returning a commission, under 3 & 4 Wm. 4, not enlarged where ex- ecuted after the return day. In re Carter, xcix. 791 ; 9 C. B. N. S. 791. The identity of Robert Rodger Strong, registrar, with Robert Soger Strong, named as commissioner, may be shown by affidavit. In re Smith, c. 344 ; 10 C. B. N. S. 344. But that the affidavit of verification was sworn before a solicitor of the Su- preme Court of W. and a commissioner for taking affidavits without a notarial certificate, is fatal. Ibid. Amount of care required in seeing that the rights of the wife are properly secured. In re Dallas, c. 346 ; 10 C. B. N. S. 346. HUSBAND AND WIFE, V., VI. (a), (b), (c). 245 General rule as to the verification of acknowledgments, under 3 & 4 Win. 4, c. 74. cvi. 1 ; 13 C. B. N. S. 1. An affidavit stating simply that because of husband's violence, she had been compelled to leave him and had since lived elsewhere, not sufficient. In re Price, cvi. 286; 13 C. B. N. S. 286. General rule as to verifying the acknowledgments of married women, cvi. 405; 13 C. B. N. S. 405. Conveyance by wife, if lunatic, of her separate property under 3 & 4 Wm. 4, c. 74, s. 91, not allowed without some statement as to husband's property. In re Sarah Cloud, cix. 833 ; 15 C. B. N. S. 833. An affidavit of commissioner must accompany certificate of acknowledgment of married woman, under 3 & 4 Wm. 4, c. 74. In re Dowling, cxiv. 223 ; 18 C. B. N. S. 223. Note to s. c. cxiv. 225 ; 18 C. B. N. S. 225 Such certificate should show that the married woman was content that the money should be paid over without any settlement. Ibid. Order for conveyance to married woman under 3 & 4 Wm. 4, c. 74, s. 91. In re Mary Graham, cxv. 370 ; 19 C. B. N. S. 370. Order for conveyance by married woman separated from her husband under 3 & 4 Wm. 4, c. 74, s. 91. Ex parte Susannah Andrews, cxv. 371 ; 19 C. B. N. S. 371. VI. Husband's liability for Wife. (a) Liability for necessaries. Wife may pledge her husband's credit for expenses of divorce a mensa et thoro, where reasonable grounds for application. Brown v. Ackrovd, Ixxxv. 819 ; 5 E.&B.819. * ' Pushing her out of the room and threatening to put her in lunatic asylum not reasonable grounds. Ibid. Not liable for a loan to the wife, though it was expended in necessaries. Knox v. Bushell, xci. 335 ; 3 C. B. N. S. 335. Husband not liable on wife's contract for necessaries where she lives apart from him after adultery. Cooper v. Lloyd, xcv. 519 ; 6 C, B. N. S. 519. She may be a witness as to the adultery. Ibid. Costs of the wife's solicitor in a suit for divorce on the ground of cruelty are a' " necessary" for which husband is liable at suit of solicitor. Rice v. Shepherd, civ. 332 ; 12 C. B. N. S. 332. Though suit has not been proceeded with and the practice of the Divorce Court for obtaining wife's costs has not been followed. Ibid. Husband is liable for expense of burying his wife, though she has voluntarily lived apart from him, and the expenses are paid by her brother, with whom she lived, without any request to husband to pay. Bradshaw v. Beard, civ. 344 ■ 12 C. B. N. S. 344. ' Husband, driving his wife from him by cruelty, liable for necessaries, even though she have an allowance found by the jury to be insufficient. Baker v. Sampson, cviii. 383 ; 14 C. B. N. S. 383. A wife cannot bind her husband for necessaries, when he has expressly for- bidden the purchase of them, but told her to apply to him. Jolly v. Rees, cix. And it makes no difference that the vendor is ignorant of the prohibition. Ibid. The foundation of the authority of the wife to contract for necessaries is an agency, express or implied. Ibid. (&_) Liability for debts or wipe before marriage. Husband liable with wife for expenses of preparing marriage settlement by wife's solicitor before marriage. Helps ». Clayton, cxii. 553 ; 17 C. B. N. S. 553. (c) Wife's agency. Where a husband abroad provided for his family, but the wife living in adul tery contracted debts for necessaries for children, he was held not liable. At- kyns v. Pearce, lxxxix. 763 ; 2 C. B. N. S. 763. 246 HUSBAND AND WIFE, VI. (d)— XII. Wife of a lunatic, who has no committee, permitted to take money out of court. Gleddon v. Trebble, xcix. 367 ; 9 C. B. N. S. 367. (d) Liability fok torts of "Wife. Husband is not responsible for false representation of his wife that certain ac- ceptances were his : per Erie, C. J., and Byles, J. ; contra, Williams, J., and Willcs, J. Wright v. Leonard, ciii. 258 ; 11 C. B. N. S. 258. _ Husband not liable for torts of wife during coverture, after dissolution of mar- riage in Divorce Court. Capel v. Powell, cxii. 743 ; 17 C. B. N. S. 743. VII. Actions against. "When wife and husband taken in execution for debt of wife, she is entitled to discharge, unless she has separate property from which she can pay. Ivens v. Butler, xc. 159 ; 7 E. & B. 159. Though husband has obtained protection from arrest. Ibid. Judgment against a married woman, sued as a feme sole, will be set aside. Wilson v. Hollings, ciii. 783 ; 11 C. B. N. S. 783. But without costs, when she had held herself out to be unmarried. Ibid. VIII. When competent to be witnesses. "Wife is not a competent witness to prove non-access during marriage. Yates v. Chippindale, ciii. 512 ; 11 C. B. N. S. 512. The wife of defendant is not a competent witness in an information against him, under 5 Geo. 4, c. 83, for failure to support her. Reeve v. Wood, cxvii. 364 ; 5 B. & S. 364. IX. Separation agreements. Provision to pay wife a certain sum weekly during her life, the deed to be void if they should, in writing, agree to cohabit and do cohabit, is not avoided by cohabitation. Handle v. Gould, xcii. 457 ; 8 E. & B. 457. An agreement for separate maintenance of wife, which recites her adultery, cannot be avoided by a decree of dissolution of marriage obtained on ground of such adultery. Goslin v. Clark, civ. 681 ; 12 C. B. N. S. 681. X. Action for criminal conversation. Semble, that on a motion for a new trial, the affidavit of plaintiff's^ wife can- not be used for any purpose. Ling v. Croker, lxxxix. 760; 2 C. B. N. S. 760. XI. Divorce. Wife may pledge her husband's credit for expenses of divorce a mensa et thorn where reasonable grounds for the application. Brown v. Ackroyd, lxxxv. 819; 5E. &B. 819. Pushing her out of the room and threatening to put her in lunatic asylum not reasonable grounds. Ibid. A protection order, under s. 21 of 20 & 21 Vict. c. 85, obtained, pending an action will not authorize the action, if not maintainable at its commencement. Midland Railway Co. v. Pye, c. 179 ; 10 C. B. N. S. 179. The court refused to expunge the registration of a decree for alimony, under ' the Divorce Act. Ex parte Holden, cvi. 641 ; 13 C. B. N. S. 641. After divorce, husband not liable for torts of wife, during coverture. 'Capel v. Powell, cxii. 743; 17 C. B. N. S. 743. XII. Dower. Demandant in dower not entitled to inspection of deeds, under Common Law Procedure Act, as against a bona fide purchaser for value without notice of the marriage. Gomm v. Parrott, xci. 47; 13 C. B. N. S. 47. Adultery without reconciliation is a bar to dower, under Westminster 2, c. 34, though the wife left her husband because of cruelty. "Woodward v. Dowse, c. 722 ; 10 C. B. N. S. 722. INDEMNITY. INFANT, L— VI. 247 INDEMNITY. Contract to indemnify plaintiff against a bill accepted by him for benefit of a third party not invalidated because bill bears a different date from that named in the contract. Way v. Hearn, cvi. 292 ; 13 C. B. N. S. 292. Nor because bill renewed without knowledge of defendant. Ibid. Nor when made at request of defendant, because plaintiff for a private reason withheld a material fact. Ibid. INFANT. I. Contracts of Infant. IV. Criminal liability. II. Necessaries. V. Proceedings by and against. III. Liability for torts. VI. Custody of Infants. I. Contracts op Infant. Third person cannot object to contract on ground of infancy of party. Douglas v. Watson, lxxxiv. 685 ; 17 C. B. 685. II. Necessaries. Quaere, whether hiring a horse by an infant can be considered necessaries. Burnard v. Haggis, cviii. 45 ; 14 C. B. N. S. 45. Infant female liable to solicitor for preparing marriage settlement. Helps v. Clayton, cxii. 653 ; 17 C. B. N. S. 553. III. Liability for torts. That illegal arrest was made by the minor son of defendant who was in his employ, and that when defendant heard of it, he did not forbid, but said he would not interfere, is no evidence of ratification. Moon v. Towers, xcviii. 611 ; 8 C. B. N. S. 611. Where an infant hired a horse and loaned him to a friend who injured him, by leaping over fence, he is liable in action of tort. Burnard v. Haggis, cviii. 45": 14 C. B. N. S. 45. But if the claim were on a contract, the action of tort would not be proper. Ibid. IV. Criminal liability. Infant under seven years not liable for felony. Marsh v. Loader, cviii. 535 : 14 C. B. N. S. 535. V. Proceedings by and against. Where proceedings in error by infant defendant on the ground that he had appeared by attorney, the court cannot amend by alleging appearance by guar- dian, but may set aside proceedings and order such appearance. Carr v. Cooner ci. 230; IB. &S. 230. * ' Replication to a plea of infancy that defendant fraudulently represented him- self to be of full age, is not good in law or on equitable grounds. Bartlett v Wells, ci. 836 ; 1 B. & S. 836? A replication to a plea of infancy in an action ex contractu, that defendant contracted the debt by a false representation that he was of full aee, is bad De Koo ». Foster, civ. 273 ; 12 C. B. N. S. 273. VI. Custody op Infants. Mother as guardian for nurture entitled to custody of child ten years of age, and court will not consider its intelligence or preference. Regina v. Clarke, xc. 186 ; 7 E. & B. 186. 248 INFANT, VI. INNKEEPER, L, II. INSOLVENT, I. Before attaining the age of sixteen a female child must remain in the custody of her father. Regina v. Howes, cvii. 332 ; 3 E. & E. 332. Between sixteen and twenty-one the court will decide whether she has exer- cised a wise choice. Ibid. Under the age of sixteen, 4 & 5 P. & M. makes it criminal offence to take a child away, although it go voluntarily. Ibid. INNKEEPER. I. Duties and liabilities. II. Lien of Innkeeper. I. Duties and liabilities. Liable for goods of guest stolen, unless negligence of guest causes the loss in such a way that it would not have happened if he had used ordinary care. Cashill v. Wright, lxxxviii. 891 ; 6 E. & B. 891. Lodging-house keeper not bound to take care of the goods of his lodger. Holder v. Soulby, xcviii. 254; 8 C. B. N. S. 254. One who walks four miles for pleasure is a traveller, within 18 & 19 Vict. c. 118, s. 2. Taylor v. Humphreys, c. 429 ; 10 C. B. N. S. 429. Innkeeper playing cards for money with friends in his private room, liable as suffering gaming on the premises, under 9 Geo. 4, c. 61, s. 21. Patten v. Rhymer, cvii. 1 ; 3 E. & E. 1 II. Lien oe Innkeeper. Extends to goods of third person in possession of guest. Snead v. Watkins, lxxxvii. 267 ; 1 C. B. N. S. 267. When a man goes to an inn with horses and groom, as a guest, and remains several months, taking the horses out for training and races (sometimes for several days), but with intention of returning, innkeeper has a lien for his bill. Allen v. Smith, civ. 638 ; 12 C. B. N. S. 638. INSOLVENT. I. General matters relating to. IV. Effect of assignment and discharge. (a) Of the petition and sche- (a) From what liabilities dis- dule. charged. II. Void assignments by Insolvent. (&) Discharged under foreign III. The assignees. Insolvent laws. I. GENERAL' MATTERS RELATING TO. Description of creditors who had notice as being in " Clement's lane," instead of " Abchurch lane," sufficient, under 1 & 2 Vict. c. 110. Brown v. Thompson, lxxxiv. 245 ; 17 C. B. 245. Duties of the commissioner of Insolvent Debtors' Court are judicial as well as ministerial. Regina v. Law, xc. 366 ; 7 E. & B. 366. An affidavit to a petition, under the Insolvent Debtors' Act, need not expressly allege that the defendant had resided for six months within the district of the county court. Walker o. The Queen, xcii. 439 ; 8 E. & B. 439. Under 10 & 11 Vict. c. 102, s. 10, the court for the relief of insolvent debtors may make an order of reference to a county judge, where the proceedings origi- nated in a creditor's petition for a vesting order. Regina v. Dowling, xcii. 605 ; 8 E. & B. 605. Court may adjourn an application for a discharge sine die, with leave to come up on notice. Ex parte Monroe, xcii. 822 ; 8 E. & B. 822. INSOLVENT, I. (a)— IV. (a). 249 Such an adjournment after hearing is an adjudication. Ibid. The final order, under 5 & 6 Vict. c. 146, and 7 & 8 Vict. c. 96, s- 22, is an absolute bar in actions in respect to which it is a protection ; and it is equally so, ■whether it provide for a distribution or direct that the petitioner's proposal for payment of his debts be carried into effect. Markin v. Aldrich, ciii. 600 ; 11 C. B. N. S. 600. When the Insolvent Debtors' Court has, upon application, under 1 & 2 Vict. c. 102, refused to vest the surplus in the applicant, who claims under an assign- ment from the insolvent, a mandamus cannot issue, though the court of chancery has held the assignment valid. Ex parte Cook, in re Dyson, cv. 585 ; 2E.fi E. 586. (a) Of the petition and schedule. Unintentional misdescription of a bill confounding the drawer with the acceptor, and misnaming the endorsee, does not vitiate discharge. Komellio v. Halaghan, ci. 279 ; 1 B. & S. 279. Privileged articles do not vest in the assignee, though not designated in the schedule. Willsmer v. Jacklin, ci. 641 ; 1 B. & S. 641. II. Void assignments by Insolvent. Warrant of attorney to confess judgment given in contemplation of insolvency within three months before imprisonment, void as against assignee under 1 & 2 • Vict. c. 110, s. 59. Billiter v. Young, lxxxviii. 1 ; 6 B. & B. 1. Reversed in House of Lords, cvii. 736 ; 3 E. & E. 736. Trover will not lie by assignee against one who under such a judgment sold the goods before insolvency. Ibid. III. The assignees. The interest of the husband of plaintiff in goods converted to defendant's use before plaintiff's marriage, goes to the assignees of the husband and they must unite with plaintiff in the suit. Richbell v. Alexander, c. 324 ; 10 C. B. N. S. 324. Under 1 & 2 Vict. c. 110, a lease made to one who afterward seeks the benefit of the act, remains vested in him until it is taken to by the assignees or given up to the landlord. Bishop v. Bedford Charity, cii. 697 ; 1 E. & E. 697. A vesting order under 11 & 12 Vict. c. 21, s. 5, passing title of separate as well as joint property of partner is good, and title of official assignee will be sustained. Brown v. Carberry, cxi. 2 ; 16 C. B. N. S. 2. IV. Effect of assignment and discharge. Deed not revocable before trust created, if assignee a creditor. Siggers v. Evans, lxxxv. 367 ; 5 E. & B. 367. Vests without assent of assignee, subject to right to divest. Ibid. Order under Common Law Procedure Act, attaching debts due defendant, has no effect upon those he has previously assigned. Hirsch v. Coates, lxxxvi. 757 ; 18 C. B. 757. A promise to pay insolvent money on a contingency for valuable consideration before vesting order, vests in assignee. Sprye v. Porter, xc. 58 ; 7 E. & B. 58. Since 19 & 20 Vict. c. 108, a debtor discharged by Insolvent Debtors' Court, not liable to committal for debt included in the adjudication. Copemane. Rose, xc. 679 ; 7 E. & B. 679. Court refused to stay proceedings in an action for goods sold in England and delivered in India, the defendant having been discharged under 11 & 12 Vict. c. 21. Reynolds' v. Goodwin, xcv. 370: 6 C. B. N. S. 370. Discharge of debtor by Insolvent Court in one of the colonies, for debt con- tracted and payable there, is a discharge in England. Gardiner v. Houghton, ex. 743 ; 2 B. & S. 743. (a) From what liabilities discharged. Not from the claim of a surety nn bis bond for payments made after the dis- charge. Emery v. Clarke, Ixxxix. 582; 2 C. B. N. S. 582. Where surety pays debt after discharge, under 1 & 2 Vict. c. 110, s. 75, insol- vent is not released. Litten v. Dalton, cxii. 178 ; 17 C. B. N. S. 178. 250 INSOLVENT, IV. (J). INSURANCE, L, II, (a). (6) DISCHARGE UNDER FOREIGN INSOLVENT LAWS. A discharge under the insolvent laws of Victoria colony is no answer to an action in England, by an English subject, on a bill of exchange drawn and pay- able in England. Bartley v. Hodges, ci. 375 ; 1 B. & S, 375. INSURANCE. I. Generally. (6) Abandonment. MARINE - (c) Average losses. II. The contract of Insurance. (d) Adjustment of losses, (a) General matters relating to. (e) Keturn of premium, (o) Insurable interest. (/) Other matters relating to set- (c) Of the policy generally. tlement of losses. (d) Insurance on freight. V. Of the proceedings. (e) Attachment of the risk. t a ) Generally. ( /) The voyage insured. (M Evidence. (g) Illegality of voyage._ (c) Other matters relating to (A) Concealment and misrepre- proceedings. sentation. fire. (i) Warranty of sea- worthiness. TTT m , , ' T (ft) Other warranties. ^1. The contract of Insurance. (I) Other matters avoiding the VIL Losses covered h ? the P ollc y- Insurance. life. III. Of the losses covered by the policy. VIII. The contract of Insurance. (a) Perils of the sea. (a) Generally. (6) Other losses. (&) Insurable interest. IV. Settlement of the losses. (c) Concealment and misrepre- (a) Total loss. sentation. (<£) Other matters. I. Generally. Covenant to keep premiums on a policy of insurance paid, is not a " contin- gency," within section 178 of Bankrupt Act, 12 & 13 Vict. c. 106. Warburg v. Tucker, lxxxv. 384 ; 5 E. & B. 384. Policies are to be construed by ascertaining the intention of the parties from the words used, interpreted by the surrounding circumstances. Carr v. Monte- fiore, cxvii. 408 ; 5 B. & S. 408. MARINE. II. The contract of Insurance. (a) General matters relating to. On policy providing that if ship be mortgaged the owner should have no claim, unless mortgagee give an undertaking to pay all sums to become due, giving the undertaking is a condition precedent. Hughes v. Tindall, lxxxvi. 98 ; 18 C. B. 98. Underwriters having insured against the risk of running down other vessels, agreeing to pay a proportion of damages paid, and the vessel being sold under a decree for such damage, were held liable for the proportion of the proceeds realized, not of her value. Thompson v. Reynolds, xc. 172 ; 7 E. & B. 17-.. The rule in construing policies is, that where there is a loss proximo,, non remote/,, causa spectator. Ionides v. Univ. Marine Ins. Co., evin. 259 ; 14 0. a. N. S. 259. . , „ . .. , Where it is the intent that policy shall take effect from execution, he 1 ^. 6 ^ 6 ™ 1 from that time, though not passing to possession of insured. Xenos v. WicMaro, cviii. 435, 861 ; 14 C. B. N. S. 435, 861. Reversing s. c, cvi. 381 ; 13 C. a. a- S 381 ' And this though broker, without authority, had with insurer attempted cancel- lation. Ibid. INSURANCE, II. (a), (b), (a), (d), 0), (/). 251 "What will constitute a policy of insurance. Parry v. The Great Ship Co., cxvi. 556 ; 4 B. & S. 556. Under a written agreement, upon an ordinary voyage policy, to insure a vessel " during thirty days' stay in her last port of discharge," the time begins at the expiration of twenty-four hours after her arrival. Insurance Co. v. Tithering- ton, cxvii. 765 ; 5 B. & S. 765. (6) Insurable interest. Where property in goods has passed, even though the price not agreed upon, vendee has insurable interest. Joyce v. Swann, cxii. 84 ; 17 C. B. N. S. 84. (c) Of the policy generally. Time policy on cargo of goods, from the loading until discharge, with liberty to barter on the coast or with vessels, factories, &c, does not cover goods landed in a factory for barter, nor produce on shore intended for cargo. Harrison v. Ellis, xc. 465 ; 7 E. & B. 465. Policy stipulating that " outward cargo should be considered homeward inter- est," and valuing the cargo at 8000Z., means a substantially full cargo, and not goods substantially less. Tobin v. Harford, cvi. 791 ; 13 C. B. N. S. 791. A policy " signed, sealed and delivered," although in possession of party exe- cuting it, complete and binding. Xenos v. Wickham, cviii. 435, 861 ; 14 C. B. N. S. 435, 861. Reversing s. c. Ex. Ch. and C. P., cvi. 381 ; 13 C. B. N. S. 381. Actual delivery not necessary unless such is the intention of the parties. Ibid. Or unless some act is necessary before its adoption. Ibid. Quality of valued, as distinguished from open policy. Tobin v. Harford, Ex. Ch., cxii. 527 ; 17 C. B. N. S. 527 ; affirming s. c. in C. P., cvi. 791 ; 13 C. B. N. S. 791. A policy upon freight " to be valued at as under," is not a valued policy. "Wilson v. Nelson, cxvii. 354 ; 5 B. & S. 354. (d) Insurance on freight. Usual policy on profit on cargo does not attach, in respect to goods ready for shipment, where vessel lost before reaching port of loading. Halhead v. Young, lxxxviii. 312; 6 E. & B. 312. Construction of policy not affected by correspondence between plaintiff and his agent, of which company had notice, nor by high rate of insurance. Ibid. Freight may be insured on a time policy expiring before voyage completed. Michael v. Gillespy, lxxxix. 627 ; 2 C. B. N. S. 627. It is a total loss of freight, if cargo so injured that it would cost more than its value to carry it to port. Ibid. Although the master acted as a prudent man, uninsured, would have done, yet the underwriters are not responsible for a total loss on freight, by perils of the sea, when the master could have made another port, got the requisite repair, and returned for the cargo he had failed to ship. Philpott v. Swann, ciii. 270 ; 11 C. B.N. S. 270. r f » » (e) Attachment or the risk. The using of memoranda (slips) for policies of insurance, will not cause an / insurance to attach. Parry v. The Great Ship Co., cxvi. 556 ; 4 B. & S. 556. A constructive loading at the place named in the policy will suffice. Carr v. Monteflore, cxvii. 408 ; 5 B. & S. 408. _ What is a sufficient appropriation of an open policy, and the time at which risk attaches. Gledstanes v. R. E. Assurance Co., cxvii. 797 ; 5 B. & S. 797. (/) The voyage insured. A vessel will not be considered as sailing upon her voyage, unless in condition tor the voyage insured. Bouillon v. Lupton, cix. 113 ; 15 C. B. N. S. 113. And where the voyage consists of different parts reference will be had to that to see what constitutes commencement. Ibid. And if the vessel be in condition for first part that will be sufficient, provided she is prepared for other parts with reasonable diligence. Ibid. 252 INSUEAMDE, II. (g), Qi), (i), {h). (g) Illegality of voyage. Where part of cargo is loaded on deck, in violation of 16 & 17 Vict. c. 107, an insurance on the whole cargo is illegal and the assured, who were privy to such loading, cannot recover from underwriters. Cunard v. Hyde, cv. 1 ; 2 E. & E. ] . Where plea admits shipment of goods from neutral port to neutral port, but alleges ultimate destination to an enemy's port, it is no defence. Hobbs v. Ken- ning, cxii. 791 ; 17 C. B. N. S. 791. A distinction is taken between a mere purpose to do an unlawful act and a participation in the unlawful transaction itself. Ibid. And it will make no difference that the goods are contraband of war. Ibid. Mere carrying of goods and papers is not per se ground of seizure, but only evidence of illegal purpose which may justify it. Ibid. (A) Concealment and misrepresentation. To constitute concealment there must be a suppression or neglect to communi- cate a material fact. Hobbs v. Henning, cxii. 791 ; 17 C. B. N. S. 791. Where a material fact is concealed by an agent in effecting insurance, though without fraudulent intent, the policy is voidable. Holland v. Russell, cxvi. 14 ; 4 B. & S. 14. The state of the ship is a material fact. Ibid. (i) Warranty of sea-worthiness. Semble, that insurance at and from meridian of day of sailing from Suez to meridian of March 20th 1853, was time policy without implied warranty of sea- worthiness. Michael v. Tredwin, lxxxiv. 551 ; 17 C. B. 551. No warranty of seaworthiness on a time policy. Thompson v. Hopper, Ixxxviii. 172 ; 6 E. & B. 172. Not though the vessel outward bound lay in port where owner resided, and he knew her condition. Ibid. No warranty of seaworthiness on time policy. Fawcus v. Sarsfield, Ixxxviii. 192; 6E. &B. 192. But owner, though he did not know of unseaworthiness of vessel, cannot re- cover, against insurer, expenses of repairs rendered necessary because of it. Ibid. How far the implied warranty of seaworthiness extends. Bouillon v. Lupton, cix. 113; 15 C. B. N. S. 113. The warranty will fluctuate with entirely different states of navigation. Ibid. And a reasonable time will be allowed to effect the necessary changes. Ibid. There is no condition that goods insured at time of commencement of voyage shall be fit for vicissitudes of voyage. Koebel v. Saunders, cxii. 71 ; 17 C. B. N. S. 71. Depends upon the position in which the vessel may be placed, the character of the vessel, or on the nature of the navigation or adventure, and of this, ex- trinsic evidence may be given. Burges v. Wickham, cxiii. 669 ; 3 B. & S. 669. The warranty of seaworthiness is limited by the nature and description of the vessel. Clapham v. Langton, cxvii. 729 ; 5 B. & S. 729. Quaere, whether parol evidence as to the character of the vessel, is admissible to qualify the ordinary warranty of seaworthiness. Ibid. Sailing with wood-goods from North America without a certificate of no deck * cargo on board, under 16 & 17 Vict. c. 107, is not a statutory unseaworthiness. Wilson v. Rankin, cxviii. 208 ; 6 B. & S. 208. (Jc) Other warranties. Warranty free from " capture and seizure,'' covers an illegal capture and seizure. Powell v. Hyde, lxxxv. 607 ; 5 E. & B. 607. Warranty free from average, unless general or the ship be stranded, covers goods of same species shipped in separate packages, though some of the pack- ages be entirely lost. Ralli v. Janson, Ixxxviii. 422 ; 6 E. & B. 422. On an insurance of things differing in kind and use, "free from all average," there may be a recovery for some which are totally lost, though others saved. Duff v. Mackenzie, xci. 16 ; 3 C. B. N. S. 16. INSURANCE, II. (i), (0, III. (a), (6). 253 And where the insurance is on goods " against total loss only." Wilkinson v. Hyde, Ibid. 30. Warranty free from seizure includes a mutinous seizure by the passengers. Kleinwort ». Shepard, cii. 447 ; 1 B. & E. 447. Construction of warranty from consequences of hostilities. Ionides v. Univ. Marine Ins. Co., cviii. 259 ; 14 C. B. N. 8. 259. {I) Other matters atoiding the Insurance. Good defence on time policy that owner, knowing vessel to be unseaworthy, sent her to sea at a dangerous time without master and proper crew, in conse- quence of which she was wrecked. Thompson v. Hopper, lxxxviii. 172 ; 6 E. & B. 172. Where the wrongful act of the insured was a cause without which the loss would not have happened but was not the proximate cause, he cannot recover. Thompson v. Hopper, lxxxviii. 937 ; 6 E. & B. 937. Keversed in Exchequer Chamber, xcvi. 1038 ; E., B. & E. 1038. Non-compliance by the master with the provisions of 16 & 17 Vict. c. 107, does not defeat an insurance on the cargo, "there being no privity between him and the insured. Cunard u.Hyde, xcvi. 670; E., B. & E. 670. Loading part of the cargo on deck in violation of statute, by the master, will not vitiate the policy unless the owner knew of it. Wilson v. Kankin, cxviii. 208; 6B. & S. 208. III. Of the losses covered by the policy. (a) Perils op the seas. Liability upon an insurance on profits against the perils of the sea does not attach unless the goods themselves are lost. Chope v. Reynolds, xciv. 642 ; 5 C. B. N. S. 642. Injury to an Atlantic cable, caused by an accidental defect in the covering, aggravated by the chemical action of the sea, is not a " peril of the sea." Paterson v. Harris, ci. 336 ; 1 B. & S. 336. In insurance proxima, non remota causa spectator. Ionides v. Univ. Marine Insurance Co., cviii. 259 ; 14 C. B. N. S. 259. Hence where a vessel is lost directly by perils of the sea, though indirectly by existence of hostilities, it comes under former. Ibid. (6) Other losses. _ On insurance of passage money of emigrants, subject to the clauses and condi- tions made under ss. 47 to 51 of the Passengers' Act 1852, it was held that under- writers not bound for expenses of master in maintaining passengers during de- tention by perils of the sea. Willis v. Cooke, Ixxxv. 641 ; 5 E. & B. 641. The unlawful taking of a vessel by a British cruiser is a peril insured against in a policy which enumerates, inter alia, " takings at sea, arrests, restraints, and detainments of all kings, princes, and people of what nation, condition or quality soever." Lozano v. Janson, cv. 160 ; 2 E. & E. 160. Insurance against "total loss only," -covers a constructive total loss. Adams v. Mackenzie, cvi. 442 ; 13 0. B. N. S. 442. ' .TT ha J constitutes a loss by hostilities. Ionides v. Univ. Marine Insurance Co. Expenses incurred to save goods can only be recovered under the " labor and travel clause, when it is done to save impending loss within the meaning of the policy. Or. 1. P. Railway Co. v. Saunders, ex. 266 ; 2 B. & S. 266. Am. Ed. note on same subject. Ibid. om w™ ClaUS ? ins »F in g a g ainst losses by restraint of princes applies to an STi r n 3 t Eftfi? aSbTg^oM war purposes - Aubert v - Gray ' thfsehme^ Ibid"* ^ ^ ^ insured was a sub J ect of the government making Quaere, whether it would be different if the seizure were lawful. Ibid ... ?T V T ™?™£ i 01 Wment in case the vessel ran another down and the assured became liable for damages, does not cover damages for personal injuries to crew. Taylor v. Dewar, cxvii. 58 ; 5 B. & S 58 "'Junes 254 INSUKANCE, IV. (a), (b). IV Settlement of the loss. (a) Total loss. When vessel has been seized and condemned as a slaver and part of the goods sold, and the rest have deteriorated so that the owner could not reasonably be expected to take possession of them after reversal of decree of condemnation, the loss is total. Lozano v. Janson, ov. 160 ; 2 E. & E. 160. When a wreck may be considered a total loss. Ionides v. Univ. Marine Ins. Co., cviii. 259 ; 14 C. B. N. S. 259. But when the surrounding circumstances show that a part could have been saved it is only a partial loss. Ibid. Where there is a clause against particular average, expenses incurred to take the goods safely to port cannot be recovered, under that clause. G. I. P. Rail- way Co. v. Saunders, ex. 266 ; 2 B. & S. 266. It makes no difference whether freight was prepaid or to be earned. Ibid. Subject considered in Am. Ed. note. Ibid. In deciding whether cost of repairs will exceed value of vessel when repaired, the real value of vessel must be taken. If it will not, it is not a constructive total loss. Grainger v. Martin, ex. 456 ; 2 B. & S. 456. Affirmed in Exchequer Chamber, cxvi. 9 ; 4 B. & S. 9. What constitutes real value. Ibid. Subject considered in Am. Ed. note. Ibid. Where notice of abandonment given by mere pledgee of insurance policy, as security for money, it will not be a total loss. Jardine v. Leathley, cxiii. 700 ; 3 B. & S. 700. A clause in marine policy " to pay a loss thirty days after receipt of official news of capture or embargo, without waiting for condemnation," will make defendants liable, as for a total loss, thirty days after receipt of such news. Fowler v. Insurance Co., cxiv. 818 ; 18 C. B. N. S. 818. And it will make no difference that the vessel was afterwards restored and arrived safely in London. Ibid. Where there has been a right sale of the ship and cargo, owing to reasonable necessity for immediate sale, there is a total loss. Farnworth t>. Hyde, cxiv. 835; 18 C. B.N. S. 835. Where there has been a total loss owing to such a sale, no notice of abandon- ment is necessary. Ibid. There is no absolute total loss if the ship might be raised in a condition which would enable her, after repairs, to be used. Kemp v. Halliday, cxviii. 723 ; 6 B. & S. 723. In determining the question of constructive total loss, it is material to take into account the liability, if any such exists, of the cargo and freight to make general average contribution towards the expenses of the ship. Ibid. (5) Abandonment. Warranty free from average, unless general or the ship be stranded, covers goods of same species shipped in separate packages, though some of the pack- ages be entirely lost. Ralli v. Janson, lxxxviii. 422 ; 6 E. & B 422. On an insurance of things differing in kind and use, " free from all average," there may be » recovery for some which are totally lost, though others saved.* Duff». Mackenzie, xci. 16; 3 C. B. N. S. 16. And where the insurance is on goods " against total loss only." Wilkinson ». Hyde, Ibid. 30. The assurers of the ship, to whom the owner of the ship and cargo has aban- doned the ship, are not entitled to any freight upon the cargo prior to the aban- donment. Miller v. Woodfall, xcii. 493 ; 8 E. & B. 493. Aliter, as to his goods carried after abandonment. Ibid. When a loss is total, the ability to resume possession of the goods will not reduce it to a partial loss, unless the owner may reasonably be expected to resume possession. Lozano v. Jansen, cv. 160 ; 2 E. & E. 160. Where the damage is sufficient to justify an abandonment, recovery can be had as for total loss of prepaid freight. De Cuadra v. Swann, cxi. 772 ; 16 C. B. N. S. 772. INSURANCE, IV. (b), (c), (d), (e). 255 If the loss is so great that the cost of repairing would exceed value of vessel ■when repaired, as well as value of freight, an abandonment is justified. Ibid. Plea that goods were transhipped into an unseaworthy vessel after abandon- donment, is bad. Ibid. . , Doctrine of abandonment, and right of insured to recover, discussed in Am. Ed. note. Ibid. Mere deposit of policy to secure money does not give pledgee right to give notice of abandonment. Jardine v. Leathley, cxiii. 700 ; 3 B. & S. 700. Subsequent ratification of pledgor -will not affect this. Ibid. Qucere, whether a mortgagee would have the right. Ibid. When there has been a total loss, owing to the necessity of immediate sale of vessel and cargo, no notice of abandonment is necessary. Farnworth v. Hyde, cxiv. 835; 18 C. B. N. S. 835. Notice of abandonment sent by master three months and received by owners four months after the damage, is not in time. Grainger v. Martin, cxvi. 9 ; 4 B. & S. 9. And the fact that there was a declaration before a notary of such intention, and a subsequent sale for the benefit of all, makes no difference. Ibid. (c) Average losses. Warranty free from- particular average, includes extra freight paid for reship- ping. G. I. P. Railway Co. v. Saunders, ci. 41 ; 1 B. & S. 41. Where there is a warranty from average, unless -general, no recovery can be had for expenses or loss coming under particular average. Booth v. Gair, cix. 291; 15 C. B. N. S. 291. What expenses fall under particular average, and not general. Ibid. When cost of repairs does not exceed real value of vessel, it is an average loss. Grainger v. Martin, ex. 456 ; 2 B. & S. 456. Affirmed in Exchequer Chamber, cvi. 9 ; 4 B. & S. 9. What constitutes real value considered. Ibid. In valued policy, word " cargo" construed so as to mean goods on board at time of loss, making in this case only a partial loss. Tobin v. Harford, cxii. 527 ; 17 C. B. N. S. 527. Affirming s. c. in C. P., cvi. 791 ; 13 C. B. N. S. 791. The proportion which the goods lost bear to the whole is the measure of the loss. Ibid. The fact that it was a valued policy makes no difference. Ibid. Insurance, partly on hull of vessel and partly on machinery, " average payable on the whole, or on each, as if separately insured," has the same effect as if there were two policies, one on each. Oppenheim v. Fry, cxiii. 873 ; 3 B. & S. 873. Affirmed in Exchequer Chamber, cxvii. 348 ; 5 B. & S. 348. For purposes of average the hull and machinery are separate. Ibid. It seems, that where a voluntary sacrifice is made for benefit of all, it is general average. Ibid. What expenses can be added to particular average loss in this case. Ibid. In a policy of insurance, on a ship and cargo of guano, containing the phrase "free from all average or claim arising from jettison or leakage," the words "arising from, &c," qualify both "average" and "claim." Carr v. Royal Ex- change, cxvii. 433 ; 5 B. & S. 433. (d) Adjustment of loss. On a policy, in the ordinary form, upon a share in the Atlantic Telegraph Company, there may be recovery for a portion of cable lost by perils of the sea, as for a partial loss. Paterson v. Harris, ci. 336 ; 1 B. & S. 336 Warranty, against partial average is applicable. Ibid Damages ascertained by finding the proportion of the whole cost to the part lost, which gives percentage on each subscription. Ibid. _ Ine part lost should be estimated at the cost of substituted cable, and depre- ciation in superfluous cable added. Ibid. y (e) Return of premium. A written request by the insured, on the arrival of the vessel, for a credit-note ™. ^!i° n6X r £' me ' an ? an T wer a8kin Sfor the policy for cancelling, which IZtt P ?'■ w 01 ^?'' th0l f h the time of *» credi^note was not un- derstood. Barnes v. Woodfall, xcv. C57 ; 6 C. B. N. S. 657. 256 INSURANCE, IV. (/), V. (a), (6), (c)— VII. {f) Other matters relating to settlement of loss. No right to retain premiums due executors until the risks on policies, under- written by the testator, are adjusted. Beckwith v. Bullen, xcii. 683 ; 8 E. & B. 683. An assured leaving his papers with his brokers for adjustment of the loss, is estopped from denying their authority to collect the money. Sweeting v. Pearce, xcvii. 449 ; 7 C. B. N. S. 449. Affirmed in Exchequer Chamber, xcix. 534 ; 9 C. B. N. S. 534. But he is not bound by a custom at a particular place, generally known but unknown to him, by which the brokers settle the loss by balancing their indi- vidual accounts with the underwriter. Ibid. "Labor and travel clause" does not enable assured to recover expenses of transshipment when there is a warranty from average, except general. Booth v. Gair, cix. 291 ; 15 C. B. N. S. 291. There must be a peril creating a risk of total loss. Ibid. V. Of the proceedings. (a) Generally. Actions by the same plaintiff, on the same policy, against several defendants, consolidated on the terms of admitting the amounts if liable, and consenting to an order of reference to ascertain them if necessary. Lewis v. Barks, xciii. 330 ; 4 C. B. N. S. 330. (6) Evidence. The term " seaworthiness" is a relative and flexible term, applied to the subject matter of each policy, by extrinsic evidence. Burges v. Wickham, cxiii. 669 ; 3 B. & S. 669. Entry of fact of embargo at Lloyd's " Loss Book," sufficient to satisfy term "official news" of embargo in policy. Fowler v. Insurance Co., cxiv. 818; IS C. B.N. S. 818. (c) Other matters relating to proceedings. In an action on a marine policy for a constructive total loss, the underwriter is entitled to inspection of all material papers in -ossession of the plaintiff. Rajner v. Ritson, cxviii. 888 ; 6 B. & S. 888. FLEE. VI. The contract of Insurance. On policy insuring goods of wharfinger and those " in trust" with him, it was held he could recover full value of goods of his customers destroyed. Waters v. Assurance Co., lxxxv. 870 ; 5 E. & B. 870. A condition in the policy that notice, of the loss shall be delivered within fif- teen days after the fire, is a condition precedent. Roper v. Lendon, cii. 825 ; 1 E. & E. 825. Aliter, as to a condition that, in case of difference, it shall be submitted to arbitrators. Ibid. No defence, on an agreement to reinstate, that performance had become impos- sible through the taking down of the buildings by Commissioners of Sewers. Brown v. Royal Insurance Co., cii. 853 ; 1 E. & E. 853. Policy against fire, with liberty to go into dry dock, construed. Pearson v. Com. Union Assurance Co., cix. 304 ; 15 C. B. N. S. 304. VII. Losses covered by the policy. Carrier may recover on a policy " on goods their own and held in trust as car- riers," to the extent of the value of the goods, though he have a defence against owner under Carriers' Act. L. & N. W. Railway Co. v. Glyn, cii. 652 ; 1 E. & E. 652. A running policy cannot be appropriated to cover a risk not contemplated at the time. Watson v. Swann, ciii. 757 ; 11 C. B. N. S. 757. Insurance of vessel against fire at dock described, with liberty to go into dry INSURANCE, VII., VIII. (a). 257 dock, held, under the circumstances, not to extend to period while vessel was lying in stream. Pearson v. Com. Union Assurance Co., cix. 304 ; 15 C. B. N. S. 304. The vessel must have been at dock described, or in transit to or from dry dock. Ibid. Policy against loss by fire does not cover damage caused by explosion of powder magazine a mile off. Everett v. London Assurance, cxv. 126 ; 19 C. B. N. S. 126. LIFE. VIII. The contract of Insurance. , (a) Generally. Where policy to be void if premium not paid within twenty-one days after accruing, directors to have liberty of refusing the new premium, and assured died within the twenty-one days, directors maintaining silence as to non-payment of the premium, held that they were not estopped from denying the payment, and that the policy was void. Simpson v. Accidental Death Ins. Co., lxxxix. 257 ; 2 C. B. N. S. 257. Provision in the policy that the stock and funds shall be liable for claims under it, does not imply a covenant to continue the business. King v. The Accumu- lative Assurance Co., xci. 151 ; 3 C. B. N. S. 151. Policy holder whose policy is not yet due, has no action against the company because of an amalgamation with another company and transfer of property. Ibid. Revival of insurance after the expiration of the thirty days allowed for renewal, implies that the insured is then alive. Pritchard v. Life Assurance Society, xci. 622; 3 C. B. N. S. 622. The assured having paid extra risk " for such residence for one year," permis- sion was granted him " to proceed to and reside at Belize aforesaid, and for the time aforesaid :" held that the permission was not limited to any particular year. Notmau v. Anchor Assurance Co., xeiii. 476 ; 4 C B. N. S. 476. Policy, may be conveyed 1 by general words in a deed. Watson v. McLean, xcvi. 75; E., B. &E. 75. A policy construed to be an annual policy, with the premium payable quarterly, and held that express words were necessary to make the payment at the quarter a condition precedent to the continuance of the policy. Sheridan v. Phoenix Life Assurance Co., xcvi. 156 ; E., B. & E. 156. Where two companies, in the course of business, reassured each other, and as a premium became due from one the other receipted for it, and the accounts were periodically settled, held that the premium was paid at the time of the receipt given. Prince of AVales Assurance Co. v. Harding, xcvi. 183 ; E., B. & E. 183. A covenant to keep up the premiums on a policy is not relieved against by subsequent discharge in bankruptcy. Warburg v. Tucker, xcvi. 914 : E., B. & E. 914. A condition that such evidence of the injury should be furnished as the directors of the company should think necessary, means such as they reasonably require. Braunstein v. Accidental Death Ins. Co., ci. 782 ; 1 B. & S. 782. In a contract to pay such sum as should be ascertained in case of dispute by reference, the reference is a condition precedent. Ibid. Where policy avoided by suicide, unless a third party have acquired a bona fide interest by assignment, for a valuable consideration or as security, assignees in bankruptcy are not within the exception. Jackson v. Forster, cii. 463 : 1 B. & E. 463. ' Death by sunstroke held not to come within an insurance against death by accident. Sinclair ». Passengers' Ins. Co., cvii. 478; 3 E. & E. 478. The term "accident" involves some violence, casualty, or vis major. Ibid. See, as to similar clauses, cases discussed in Am. Ed. note. Ibid. 486. Also, as to death resulting from suicide. Ibid. Yearly policy, restricted by proviso requiring premiums to be paid quarterly. Phoenix Co. v. Sheridan, cvii. (H. of L.) 763 ; 3 E. & E. 763. Under clause in proviso, premium not being paid, policy void. Ibid. Vol. III.— 17. 258 INSURANCE, VIII. (a), (5), (c), (d). Condition in policy against death by hernia qualified by subsequent language of policy. Fitton v. Accidental Death Ins. Co., cxii. 122 ; 17 C. B. N. S. 122. What is, and what is not an accident within meaning of policy. Am. Ed. note. Ibid. 136. Where policy contains clause that statements in declaration are to be part of policy, the two are to be construed together. Fowkes v. Insurance Association, cxiii. 917 ; 3 B. & S. 917. Where, in such case, there is clause in declaration against fraudulent misrep- resentation or concealment, mere falsehood of statements will not do. Ibid. They must be proved to be fraudulently made. Ibid. (6) Insurable interest. Under 14 Geo. 3, c. 48, s. 2, policy on the life of another is void, unless the name of the person interested appears in it as interested. Hodson v. Life Assur- ance Society, xcii. 40 ; 8 E. & B. 40. Under 14 Geo. 3, c. 48, s. 3, upon life insurance, there can only be a recovery of the amount of the insurable interest. Hebdon v. West, cxiii. 579 ; 3 B. & S. 579. It is sufficient defence to suit on second policy that the amount of insurable interest has been recovered on another policy. Ibid. The interest to be insurable must be pecuniary. Ibid. A bare promise not to enforce payment of debt is not such interest. Ibid. But an agreement to employ for definite time, to the extent of the period which remained at execution of policy, would be. Ibid. (c) Concealment and misrepresentation. Statement by the assured that he was not aware of any disorder tending to shorten life does not defeat the policy, if he had the disorder but was not aware of such tendency. Jones v. Provincial Insurance Co., xci. 65 ; 3 C. B. N. S. 65. Untrue statements by the party interested, made bona fide through the fraud of the "life" and his referees, do not prevent recovery. Wheelton v. Hardisty, xcii. 232 ; 8 E. & B. 232. The " life" and his referees are not the agents of the party interested so as to make their fraud his own. Ibid. Statements of facts by the party interested do not form the basis of the contract unless it be so stipulated. Ibid. Semble, that the issue of a prospectus by the company to their customers was no evidence that the plaintiff saw it and acted upon it. Ibid. Untrue statements, though immaterial and without intentional fraud, vitiate a policy which provides that in case of untruth it shall be void. Cazenove v. British Assurance Co., xcv. 437 ; 6 C. B. N. S. 437. Mere falsehood of statements, in policy and declaration construed together, providing against fraudulent misrepresentation or concealment, will not avoid policy. Fowkes v Assurance Association, cxiii. 917 ; 3 B. & S. 917. They must be designedly false in such case. Ibid. (<£) Other matters. A policy of life insurance may be the subject of a donatio mortis causa. Witt o. Amis, ci. 109 ; 1 B. & S. 109. The failure to state what is not material does not avoid the policy. Perrins v. Insurance Society, cv. 317 ; 2 E. & E. 317. s. c. afiirmed in error. Ibid. 324. The form of proposal for insurance required name, residence and occupation of the person proposed to be insured. The answer described the insured as an esquire. He was also an ironmonger. This omission did not avoid the policy, though by its terms it was void if any " answer was untrue" and it was obtained by " concealment." Ibid. Covenant to pay premiums on life policy not discharged by certificate under Bankrupt Act, 12 & 13 Vict. c. 106. Mitcalfe v. Hanson, cxiii. 975 ; 3 B. & S. 975. INTEREST. INTERNATIONAL LAW. 259 INTEREST. Where a bill drawn with interest at ten per cent is dishonored by the acceptor, the drawer is liable at that rate. Keene v. Keene, xci. 144 ; 3 C. B. N. S. 144. Where the contract provides for a specified extension of time on the payment of interest on the amount, the payment of interest is not a condition precedent. Dodd v. Ponsford, xcv. 324 ; 6 C. B. N. S. 324. INTERPLEADER. Suit by the holder against the acceptor of a draft sent by a husband to his wife, drawn to her order, and which he had notified acceptor not to pay, is not a case for an interpleader. Baker v. Bank of Australasia, lxxxvii. 515 ; 1 C. B. N. S. 515. Where each party partially successful, costs to be taxed on that principle with- out reference to which was plaintiff or defendant. Clifton v. Davis, lxxxviii. 392 ; 6 B. & B. 392. Where a bank pledgee was sued in trover, court ordered pledgor to. be substi- tuted as defendant. Roberts v. Bell, xc. 323 ; 7 B. & B. 323. Creditor cannot levy on goods conveyed by bill of sale because of a prior bill of sale void as to creditors but good as to others. Edwards v. English, xc. 564 • 7 E. & B. 564. ' An order for the payment of costs in an interpleader issue has the effect of a judgment, within sect. 61 of 17 & 18 Vict. c. 125. Hartley v. Shemwell, ci. 1 : 1 B. & S. 1. ' ' An interpleader issue is a " cause" within the Common Law Procedure Act. 1854. White v. Watts, civ. 267 ; 12 C. B. N. S. 267. An equitable claim is not the subject of an interpleader summons. Hurst v. Sheldon, cvi. 750 ; 13 C. B. N. S. 750. Seizure and sale of goods after interpleader by sheriff is contempt, under 1 & 2 Wm. 4, c. 58. Cooper v. Asprey, cxiii. 932 ; 3 B. & S. 932. Error lies on a judgment in an interpleader issue, Gumm v, Tvrie, cxviii. 298 : 6 B. & S. 298 ' INTERNATIONAL LAW. Piracy, under 6 & 7 Vict. c. 76, giving effect to the extradition treaty of August 9th 1842 with the United States, is confined to piracy within the peculiar jurisdiction of the United States. In re Tivnan, cxvii. 645 ; 5 B. & S. 645. In order to issue a warrant under it, it is not necessary that there should have been an original warrant and depositions in the United States. Ibid. The warrant need not allege that testimony was taken under oath. Ibid. The acts for which extradition may be demanded, under 6 & 7 Vict. c. 76, must be such as constitute one of the offences therein named according to the law of England and the general law of the United States, and not according to the statute of a particular state. In re Windsor, cxviii. 522 ; 6 B. & S. 522. 260 JOINT STOCK COMPANY, I. JOINT STOCK COMPANY. I. Proceedings against shareholder. III. Liability of shareholder. II. Proceedings by and against company. IV.' Other matters. I. Proceedings against shareholder Execution against one, as shareholder, under 8 & 9 Vict. c. 16, can only be issued where he signed deed of settlement. Moss v. Steam Gondola Co., lxxxiv. 180 ; 17 C B. 180. Not enough that he acted as director. Ibid. Affidavits that company insolvent, its property exhausted, and its place of bus- iness deserted, sufficient to authorize execution against shareholder. Kidgway v. Assurance Co., lxxxvi. 086 ; 18 C. B. 686. Judgment creditor, who has issued execution ineffectually against the company, is entitled, as of right, to execution against shareholder. Morisse v. Koyal Brit- ish Bank, lxxxvii. 67 ; 1 C. B. N. S. 67. Though affairs of the company being wound up with a prospect of sufficient assets to meet demands. Ibid. Service of notice at residence of shareholder on his footman sufficient. Ibid. Service of rule for execution on attorney of shareholder not sufficient. Ed- wards v. Railway Co., lxxxvii. 409 ; 1 C. B. N. S. 409. Inaccuracy in the form of the memorial does not prevent its being evidence against the shareholders. Dossett v. Harding, lxxxvii. 524 • 1C. B. N. S. 524 ; Powis v. Harding, lxxxvii. 533 ; 1 C. B. N. S. 533. Quaere, as to whether it is conclusive evidence. Ibid. Notice which includes two persons, though the application confined to one, is good. Dossett v. Harding, lxxxvii. 524 ; 1 C. B. N. b. 524. No answer to rule for execution that defendant was induced to become share- holder by fraudulent representations of directors. Powis v. Harding, lxxxvii. 533 ; 1 C. B. N. S. 533. Notice in the alternative, of intention to apply to the court or a judge, is good. Bendy v. Harding, lxxxvii. 551 ; 1 C. B. N. S. 551. Execution denied against one who had not signed the deed of settlement or deed referring to it. Bailey v. Life Association, lxxxvii. 557 ; 1 C. B. N. S. 557. Notice to John Marshall, which should have been to John S. Marshall, accom- panied by oath of identity js sufficient. Thompson v. Harding, lxxxvii. 555 j 1 C. B. N. S. 555. The judge'of any court may order execution against a shareholder. Palmer v. Justice Assurance Co., lxxxviii. 1015 ; 6 E. & B. 1015. Affidavit that writs of fi. fa. had been returned nulla bona, that after proper inquiries plaintiff believed company had no assets, that all due diligence had been used, held sufficient, under 8 & 9 Vict. Wyatt v. Darenth Valley Railway Co., lxxxix. 110 ; 2 C. B. N. S. 110. No answer that shareholder has a claim against company greater than the un- paid calls. Ibid. Rule for scire facias against shareholder not enlarged on affidavit that the claim was contracted ultra vires. Edwards v. Railway Co., lxxxix. 397 ; 2 C. B. N. S. 397. Where the question difficult, court ordered special case to be stated. Powis ». Harding, lxxxix. 405 : 2 C. B. N. S. 405. Fry v. Harding, lxxxix. 407 ; 2 C. B. N. S. 407. Execution may issue against shareholder induced to become so by fraud not of the creditor. Henderson v. Royal British Bank, xc. 356 ; 7 E. & B. 356. If his name appears on registered memorial as shareholder it is enough, though memorial somewhat informal. Ibid. Shareholder in banking company incorporated, under 7 & 8 Vict. c. 113, can- not be sued for the debt of the corporation. Fell v. Burchett, xc. 537 ; 7 E. & B. 537. ,. ,, 11 & 12 Vict. c. 45, makes the provisions of G Geo. 4, c. 42, s. 12, applicable to judgments against official managers. "Walker v. Goody ere, xc. 960; 7 E. & B. 960. JOINT STOCK COMPANY, I.— III. 261 Warrant to confess the full amount of an Irish judgment, under 6 Geo. 4, e. 42, is good, though there was a previous warrant to confess the amount remain- ing due. Ibid. Discharge in bankruptcy of a shareholder exempts him from execution. Thomson v. Harding, xci. 254 ; 3 0.B. N. S. 254. Executors of one who died before his name was inserted in the last memorial filed, and before judgment obtained against the company, are not liable. Powis v. Butler, xci. 645 ; 3 C. B. N. S. 645. Affirmed in Exchequer Chamber, xciii. 469 ; 4 C. B. N. S. 469. Execution may be had against a shareholder whose name appears on the last memorial, though he has since transferred, bona fide, his shares. Fry v. Russell, xci. 665 ; 3 C. B. N. S. 665. Affidavits for scire facias against shareholder are properly entitled of the original action. Edwards v. Kilkenny Railway Co., xci. 786, 787 ; 3 C. B. N. S. 786, 787. Need not expressly state that the judgment remains unsatisfied. Ibid. That the works were not completed within the time limited by act of incor- poration is no answer. Ibid. Scire facias not allowed under 8 & 9 Vict. c. 36, against one who has merely paid deposit and received allotment. Edwards v. The Kilkenny & G. W. Rail- way Co., cviii. 526 ; 14 C. B. N. S. 526. It is only by signing subscribers' agreement or deed of settlement of company that he becomes a shareholder. Ibid. Sci. fa. will not be allowed except against one clearly a stockholder. Mather v. National Assurance, &c, cviii. 676 ; 14 C. B. N. S. 676. Qucere, whether, if from the constitution of the association he was a partner, it would go at all. Ibid. Where a joint stock company is directed to be wound up and a manager ap- pointed, under 11 & 12 Vict. c. 45, s. 73, and 20 & 21 Vict. c. 78, s. 7, proceed- ings in an action against a shareholder will be stayed by the court out of which the writ issued. Thomas v. Wells, cxi. 508 ; 16 C. B. N. S. 508. II. Proceedings by and against company. Liable on bond of company given by directors without authority to bona fide obligee. Bank v. Turquand, Ixxxv. 248 ; 5 E. & B. 248. Affirmed in Ex. Ch., lxxxviii. 327 ; 6 E. & B. 327. _ Service of summons upon joint stock company by leave of Irish court, by de- livering copy to Dublin agent and mailing copy to manager in London, is good. Sheehy v. Life Assurance Co., lxxxix. 211 ; 2 C. B. N. S. 211. Affirmed in Ex. Ch., xci. 597 ; 3 C. B. N. S. 597. Contract is valid, though not sanctioned by a meeting of shareholders, or exe- cuted by three directors, as required by the deed of settlement. Agar ». Life Assurance Co., xci. 725 ; 3 C. B. N. S. 725. Where the deed of settlement authorized the directors to draw bills for the purposes of the company, it was held not liable upon a bill drawn by them in carrying out an illegal amalgamation with another company. Balfour v. Ernest. xciv. 601 ; 5 C. B. N. S. 6017 ,. ' A life assurance company completely registered, under 7 & 8 Vict. c. 1 10, cannot avoid a contract because there had been no previous order sealed and under the hands of three directors, as prescribed by the deed of settlement. Prince of Wales Assurance Co. v. Harding, xcvi. 183; E., B. & E. 183. No recovery against company on a contract for work and materials, percentage on outlay, or money loaned on debenture, where plaintiff, as a director, voted on contract, and it was not afterward ratified by shareholders. Stears v. South Essex Gaslight Co., xcix. 180; 9 C. B. N. S. 180. A contract made by promoters of a company provisionally registered, under 8 . Noi-ris, xcix. 19 ; 9 C. B. N. S. 19. Where directors have power to buy. sell, let to hire, and charter and have the general management of the busings, they may sell all the vessels of the company, though it lead to dissolution. Wilson v. Miers, c 848 ; 10 0. B. N. S. 348. The execution of a bond under 19 & 20. Vict. c. 108, ss. 39 & 70, is within the scope of the general power of a joint stock company limited. Young v. Water- works Co., cL 675 ; 1 B. & S. 675. What agreement between directors of joint stock company as to shares not ultra vires. Haddon v. Ayers, cii. 118 ; 1 E. & E. 118. Shareholder not entitled at all times to inspection of minute book of \ oceedings of directors. Regina " Mariquita Mining Co., cii. 289 ; 1 E. & E. 289. A deposit of certificates of a gas company as collateral security for a loan, is 264 JOINT STOCK COMPANY, IV. JUDGES. a valid transfer, as against pledgor's subsequent assignee. Broadbent v. Varley, civ. 214; 12 0. B. N. S. 214. An insurance company, which also lends money, cannot sue, unless registered under Joint Stock Companies Act (19 & 20 Vict. c. 47, and 20 & 21 Vict. c. 14). L. & P. Provident Society v. Ashton, civ. 709 ; 12 C. B. N. S. 709. s. c. reversed in Ex. Ch. civ. 723 ; 12 C. B. N. S. 723. One sufficiently performs a contract to deliver shares, who puts the other party in the position of legal owner. Hunt v. Gunn, cvi. 226 ; 13 C. B. N. S. 226. Receiving shares and allowing names to be used as directors in prospectus of a projected transport company, will make parties liable on contract made with passenger. Colhngwood v. Berkeley, cix. 145 ; 15 C. B. N. S. 145. Ownership of shares giving right to profits in joint stock company owning land, vested in trustees, does not create an interest in land. Bennett v. Blain, cix. 518 ; 15 C. B. N. S. 518. Insolvency of shareholder does not work dissolution of company. Thomas B.Wells, cxi. 508 ; 16 0. B. N. S. 508. Provisional directors of projected joint stock company liable to third party for contracts of agent authorized by them. Maddock v. Marshall, (Ex. Ch.) cxii. 829; 17 C. B. N. S. 829. Affirming s. c. cxi. 387 ; 17 C. B. N. S. 387. And this, although there was a secret agreement with agent, that they should not be. Ibid. 19 & 20 Vict. c. 47, and 21 & 22 Vict. c. 60, repealed and consolidated by 25 & 26 Vict. o. 89. Garnet Gold Mining Co. v. Sutton, n. {a), cxiii. 328 ; 3 B. & S. 328. JOINT TENANCY. One joint tenant may demise his part to the other with the usual incidents of reversion and distress. Cowper v. Fletcher, cxviii. 464 ; 6 B. & S. 464. JUDGES. Judge of county court having disposed of motion for new trial cannot after- ward rehear the case. Great Northern Railway Co. v. Mossop, lxxxiv. 130 : 17 C. B. 130. Judge at Nisi Prius to determine whether instrument properly stamped. Siordet v. Kuezynski, lxxxiv. 251 ; 17 C. B. 251. Tattersall v. Fearnley, lxxxiv. 368; 17 C. B. 368. Discretion of a judge, exercised in permitting one of three defendants to re- move indictment by certiorari, not reviewable. Reginaw. Wilks, lxxxv. 690; ^5 E. & B. 690. Certificate of judge, under 13 & 14 Vict. c. 61, s. 12, that it appeared to him there was sufficient reason for bringing suit in superior court, may be given after the trial. Bennett v. Thompson, lxxxviii. 683 ; 6 E. & B. 683. The judge of any court may order execution against a shareholder in a joint stock company. Palmer v. Justice Assurance Co., lxxxviii. 1015 ; 6 E. & B. 1015. Order for costs on an appeal against a rate, though taxed by the recorder, made by the sessions over whom the deputy recorder presided, who resided in a parish which contributed to the fund, is void because of his interest. Regina v. Recorder of Cambridge, xcii. 637 ; 8 E. & B. 637. Semble, that a judgment entered by a deputy judge of a county court after th° death of the judge who deputed him, and the appointment of a successor is void, though the case heard before the death. Hoey v. MacFarlane, xciii. 718; 4 C. B. N. S. 718. JUDGES. JUDGMENT, I.— IV. 265 A judge has no power to order the disposal of goods in the possession of a felon, not belonging to the prosecutor. Keeina v. Corporation of London, xcvi. 509 ; B., B. & E. 509. Court will not interfere with change of venue by judge at chambers, unless it be shown that he has acted on a misconception. Schuster v. Wheelwright, xcviii. 383 ; 8 C. B. N. S. 383. A judicial officer cannot be sued for an adjudication according to the best of his judgment upon a matter within his jurisdiction. Kemp v. Neville, u. 523 ; 10 C. B. N. S. 523. No action against judge for judicial act, though alleged to be done maliciously and corruptly. Fray v. Blackburn, cxiii. 576 ; 3 B. & S. 576. Liability of judges generally to action for judicial acts. Am. Ed. note. Ibid. JUDGMENT. I. Form and entry of Judgment. V. When Judgment void. II. Setting aside and amending of VI. Effect of Judgment. Judgment. (a) Judgment of foreign court. III. Computation of amount due under VII. Set-off of Judgments. Judgment. VIII. Other matters. IV. Satisfaction of Judgment. I. Form and entry of Judgment. Where some pleas bad, others good, and plaintiff signed judgment, it was opened, and defendant let in on terms. Koberts v. Brett, lxxxiv. 534 ; 17 C. B. 534. Where there was a verdict subject to an award, and the award was afterward in favor of plaintiff, held he could sign judgment before the time for moving to set it aside had elapsed. O'Toole ». Pott, xc. 102 : 7 E. & B. 102. Where the court delayed to enter judgment on a nonsuit, until after death of the plaintiff, it was entered nunc pro tunc, though will not proved. Moor v. Roberts, xci. 830; 3 C. B. N. S. 830. II. Setting aside and amending of Judgment.. Judgment of county court reversed where fact found without evidence. Life Assurance Co. v. Ward, lxxxiv. 644 ; 17 C. B. 644. Plaintiff, after receiving amount of judgment and costs, permitted to set it aside on ground of mistake. Cannan ». Reynolds, lxxxv. 301 ; 5 E. & B. 301. Judgment entered on the ground that a plea, setting forth that the contract was made in France, and plaintiff's claim had been attached there, was not issuable, set aside on terms. Simian v. Miller, lxxxvii. 686 ; 1 C. B. N. S. 686. Where defendant has been discharged, under Insolvent Debtors' Act, judgment of outlawry was set aside on his assigning all his goods and paying costs. Baster- field ». Sprye, lxxxviii. 376 ; 6 E. & B. 376. The court refused to set aside a judgment, on the ground that the plaintiff had not taken necessary steps to set down, for argument, the special case stated sub- ject to which judgment was signed, the defendant declining to pay a moiety of referee's fee. Howkins v. Bennet, xcv. 386 ; 6 C. B. N. S. 386. III. Computation of amount due under Judgment. Where the amount specially endorsed on the summons is reduced by subse- quent payments, judgment for want of appearance should be entered only for the balance. Hodges v. Callaghan, Ixxxix, 306 ; 2 C. B. N. S. 306. IV. Satisfaction of Judgment. Discharge from a ca. sa. is a satisfaction of the judgment, though the condition of the discharge afterward broken. Cattlin v. Kernot, xci. 796 : 3 C. B. N. S. 796. 266 JUDGMENT, V.— VIII. V. When Judgment void. Semhle, that a judgment entered by a deputy judge of a county court after the death of the judge who deputed him and the appointment of a successor, is void, though the case heard before the death. Hoey v. MacFarlane, xciii. 718 ; 4 C. B. N. S. 718. VI. Effect of Judgment. Judgment creditor who has issued an ineffectual execution against a joint stock company, is entitled as of right to execution against a shareholder. Morisse v. Royal British Bank, lxxxvii. 67 ; 1 C. B. N. S. 67. Judgment recovered in the consular court at Constantinople, and payment, bar an action. Barber v. Lamb, xcviii. 95 ; 8 C. B. N. S. 95. An order for the payment of costs, in an interpleader issue, has the effect of a judgment, within section 61 of 17 & 18 Vict. c. 125. Hartleys. Shemwell, ci. 1; l'B. &S. 1. Decree in admiralty no bar to subsequent action for collision, where insufficient amount has been obtained by sale of vessel to pay the damages. Nelson v. Couch, cix. 99 ; 15 C. B. N. S. 99. (a) Judgment of foreign court. 11 & 12 Vict. c. 45, makes the provisions of 6 Geo. 4, c. 42, s. 12, applicable to judgments against official managers. Walker v. Goodyere, xc. 960 ; 7 E. & B. 960. Warrant to confess the full amount of an Irish judgment, under 6 Geo. 4, c. 42, is good, though there was a previous warrant to confess the amount remain- ing due. Ibid. Plea of judgment recovered in a foreign court must show that it was final and conclusive there. Frayes v. Worms, u. 149 ; 10 C. B. N. S. 149. Judgment of foreign court in rem, unreversed, no ground to support action for damages, as being malicious and without probable cause, unless it is averred in the narr. that plaintiff had no notice of the proceedings, and had no chance to be heard. Castrique v. Behrens, cvii. 709 ; 3 B. & E. 709. Court will not entertain a suit grounded on the assumption that such judg- ment was reached without reasonable and probable cause. Ibid. To be treated as proceeding at domicil where plaintiff claiming damages, had not prosecuted previous suit to successful result. Ibid. Judgment of foreign court conclusive in suit on it as to any matter of defence which could have been set up in the proceedings. Vanquelin v. Bouard, cix. 341 c. ; 15 . Potts, cxii. 314; 17 C. B. N. S. 314. Lease of premises on fine, by tenant in tail, unde' power destroyed by private act of parliament, is not binding on succeeding tenant in tail. Earl of Shrews- bury v. Keightley, cxv. 606 ; 19 C. B. N. S 606. Idem o. Harbord, cxv. 643 ; 19 C. B. N. S. 643. But where the power is construed as granted by subsequent act of parliament the lease is binding. Earl of Shrewsbury v. Beazley, cxv. 651 ; 19 0. B. N. S. 651. And it being to the interest of the parties, the Act of Parliament was so con- strued in this case. Ibid. Where a landlord having the power of giving notice does not exercise it, it is held to be a reletting and not a continuous lease. Gandy v. Jubber, cxvii. 78 ; 5 B. & S. 78. Quaere, by Ex. Ch., Ibid., 485. VIL Forfeiture of lease. Covenant to use best endeavors to improve property, a theatre, not broken by keeping it closed, though injurious. Croft v. Lumley, lxxxv. 648 ; 5 E. & B. 648. Affirmed in House of Lords, xcvi. 1069 ; E., B. & E. 1069. Covenant not to let boxes for longer term than one year, not broken by letting box to A. for year, and same box to B. for year, to commence before expiration of A.'s term. Ibid. Covenant not to encumber not broken by giving warrant of attorney to confess judgment where there was no defence. Ibid. Where landlord, intending to take advantage of a forfeiture, let the premises to an under-tenant in possession, and received rent, it was a sufficient re-entry. Bayles v. LeGros, xciii. 537 ; 4 C. B. N. S. 537. In order to bring ejectment, under sect. 210 of the Common Law Procedure Act of 1852, there must be a half-year's rent in arrear at the time of the service of the writ. Cotesworth v. Spokes, c. 103; 10 C. B. N. S. 103. Where lessee in arrears and insolvent, notice to sub-lessees to pay rent to lessor, and acceptance by him of rent from some of them, does not amount to re-entry. Bishop v. Bedford Charity, cii. 697 ; 1 E. & E. 697. There can be no forfeiture for non-repair while the tenant is evicted by the landlord. Pellatt v. Boosey, ciii. 885 ; 11 C. B. N. S. 885. Interrogatories, under the Common Law Procedure Act of 1854, not allowed where the answers would cause a forfeiture of defendant's estate. Pye v. But- terfield, cxvii. 829; 5 B. & S. 829. (a) Waiter of forfeiture. Where money offered as rent, and landlord received it, declaring he took it for occupation, and reserved right to re-enter, held a waiver of forfeiture. Croft v. Lumley, lxxxv. 648 ; 5 E. & B. 648. Affirmed in House of Lords, xcvi. 1069 ; E., B. & E. 1069. Thoughdandlord not aware, at the time, of all the instances in which covenant had been broken. Ibid. Where there is a covenant not to alter without written consent, the landlord does not waive the forfeiture by merely standing by. Perry v. Davis, xci. 769 ; 3 C. B. N. S. 769. Bringing an action for subsequent rent, with a knowledge of the forfeiture, is a waiver. Dendy v. Nicholl, xciii. 376 ; 4 C. B. N, S. 376. Acceptance of rent, with knowledge of breach of condition, is a waiver of forfeiture. Pellatt v. Boosey, ciii. 885; 11 C. B. N. S. 885. Vol. III.— 18 274 LANDLOKD AND TENANT, VII. (6), VIII. (a), (5). (5) How far Tenant may controvert Landlord's title. Rule that tenant cannot deny landlord's title, not confined to ejectment. Do- laney v. Pox, Ixxxix. 768 ; 2 Cf. B. N. S. 768. Semble, that eviction, to put an end to this estoppel, must be actual and not constructive. Ibid. One who has paid rent is not estopped, after a determination of the tenancy, from setting up a prior good title in himself, in ejectment by landlord. Acci- dental Death Insurance Co. v. Mackenzie, c. 870 ; 10 C. B. N. S. 870. VIII. Other general matters touching relation of Landlord and Tenant. Bankruptcy no defence to action on agreement of tenant to restore premises to their original state. Maples v. Pepper, lxxxvi. 177 ; 18 C. B. 177. Payment of rent, under distress, is not conclusive admission of title in dis- trainor. Knight v. Cox, lxxxvi. 645 ; 18 C. B. 645. "Where, by agreement, the tenant, on coming in possession, was to pay for straw and dung, but on going out was to be paid for the straw left, but not for the dung, the straw should be valued at fodder price, i. e., one-half market value. Clarke v. Westrope, lxxxvi. 765 ; 18 C. B. 765. Action will lie for it, though the plan of valuation agreed upon has become impossible. Ibid. Where defendant agreed to grant a lease to the plaintiff for five years at cer- tain rent, and at expiration of the term to pay all moneys expended on the land, plaintiff having occupied under the contract can recover moneys expended though lease never granted. Bowes v. Croll, lxxxviii. 255 ; 6 E. & B. 255. Substitution of other rooms, for those of the lease, on same terms, is a new contract, and not an alteration by parol. Giles v. Spencer, xci. 244 ; 3 C. B. N. S. 244. Quaere, can a right of re-entry for condition broken be assigned. Bennett v. Herring, xci. 370 ; 3 C. B. N. S. 370. In an action of landlord for'rent, a bona fide clajm of title in a third person, without eviction, does not oust the jurisdiction of the county court. In re Emery and Barnett, xciii. 423 ; 4 C. B. N. S. 423. Landlord, owning the adjoining house, under s. 83 of 18 & 19 Vict. c. 122, is not liable in trespass for entering and rebuilding the party wall, without notice to the tenant or surveyor. Wheeler v. Gray, xciii. 584 ; 4 C. B. N. S. 584. Affirmed in Ex. Ch., xcv. 606 ; 6 C. B. N. S. 606. Reversioner, who leases houses in a ruinous condition, is liable for injuries caused thereby to adjacent premises. Todd v. Flight, xcix. 377 ; 9 C. B. N. S. 377. A lessee, for twenty-one years, and not the lessor, is the owner, within s. 73 of 18 & 19 Vict. c. 122. Mourilyan v. Labalmondiere, cii. 533 ; 1 E. & E. 533. Trespass will not lie by assignee of term without actual entry. Harrison v. Blackburn, cxii. 678 ; 17 C B. N. S. 678. A bill of sale (duly registered) of all personal chattels on certain premises held by lessee, followed by words assigning all other personal estate for purpose of paying a debt, does not operate as an assignment of the term. Ibid. Rateable value of breweries or public houses leased from brewers, not affected by personal contracts of tenants of public houses with brewer landlord. Sun- derland v. Sunderland Union, cxiv. 531 ; 18 C. B. N. S. 531. An agreement for an increased rent in the event of a tax, is legal and not pro- hibited by 5 & 6 Vict. c. 35. Colbron v. Travers, civ. 181 ; 12 C. B. N. S. 181. (a) Attornment op Tenant. Attornment to a receiver appointed by Court of Chancery, reserving right of appeal and subsequent payment of rent, does not make person found to have legal estate, landlord. Evans v. Mathias, xc. 590; 7 E. & B. 590. (6) Disclaimer op Tenancy. Where tenants refused to pay a rent increased to meet enclosure expenses after these expenses were supposed to be paid, claiming the lower rate not a dis- claimer. Hunt v. Allgood, c. 253 ; 10 C. B. N. S. 253. LANDLORD AND TENANT, VIII. (6), (c), (d), IX. (a), (6). 275 Refusal to pay rent until he learns who is the right owner, is not a disclaimer. Jones v. Mills, c. 788 ; 10 C. B. N. S. 788. Lease of tolls binding on lessee, under 3 Geo. 4, c. 126, s. 55, though provision requiring sureties is waived by trustees. Markham v. Stanford, cviii. 376 ; 14 C. B. N. S. 376. A tenant, who with others has a title paramount, but is let into possession under an agreement, must pay his rent. Fisher v. Marsh, oxviii. 411 : 6 B. & S. 411. (c) Fixtures. Rector or his executors may remove hot-houses erected by him apart from the rectory, consisting of frame and glass work on walls and imbedded in mortar. Martin v. Roe, xc. 237 ; 7 E. & B. 237. On a lease providing in effect, that at the expiration or sooner determination of the term, certain fixtures shall belong to the tenant, he has a reasonable time to remove them. Stansfeld v. Mayor of Portsmouth, xciii. 120 ; 4 C. B. N. S. 120. Tenant cannot enter to remove fixtures after determination of term and re- entry by the landlord. Leader v. Homewood, xciv. 546 ; 5 0. B. N. S. 546. The mortgagee of tenant's fixtures may, after a surrender of the term, enter and sever them. Loan Co. v. Drake, xcv. 798 ; 6 C. B. N. S. 798. Fixtures which would be removable by a tenant, annexed by the mortgagor in possession to the freehold for a permanent purpose, enure to the benefit of the mortgagee. Walmsley v. Milne, xcvii. 115; 7 C. B. N. S. 115. Wooden building erected by tenant is presumed to be a fixture. Powell v. Farmer, cxiv. 168 ; 18 C. B. N. S. 168. (d) Repairs. A landlord, who lets premises with a nuisance on them, is liable to strangers for damages thereby caused. Gandy v. Jubber, cxvii. 78 ; 5 B. & S. 78. Quaere by Ex. Ch. Ibid. 485- IX. Kent. (a) When recoverable generally. Parol evidence admitted to show that under an undated lease rent was not to commence until certain repairs done. Davis v. Jones, Ixxxiv. 625 ; 17 C. B. 625. In an action by a landlord against a tenant, the landlord being also trustee for the tenant with respect to the rent, evidence that the landlord permitted him to receive the rent from the undertenants, saying he might as well keep it, does not amount to payment. Dollen v. Batt, xciii. 760 ; 4 C. B. N. S. 760. Covenant to pay rent, damage by fire excepted, and to keep in repair, not in- cluding new buildings erected, damage by fire excepted, held that on destruction by fire of part of the demised premises, the deduction in rent should be in the proportion of the annual value of the destroyed part to the whole, excluding the new buildings. Bennett v. Ireland, xcvi. 325 ; E., B. & E. 325. That the premises were destroyed by fire and the landlord received insurance money without rebuilding, is no defence to an action for rent. Loft v. Dennis, cii. 474; IE. & E. 474. Where a lessee demised for a longer time than his term, reserving a rent which he assigned, the assignee may bring an action of debt for the rent. Williams v. Hay ward, oii. 1040; 1 E. & E. 1040. (&) Eviction. What will constitute eviction. Upton v. Townend, Ixxxiv. 30 ; 17 C. B. 30. Where the premises are consumed by fire and are rebuilt by landlord upon a different plan which decreases the area, it is an eviction. Ibid. And where they are rebuilt upon different plan which increases the area. Upton v. Greenlees, Ixxxiv. 51 ; 17 C. B. 51. The agreement to accept such a plan by the tenant and the rebuilding by the landlord, constitute an eviction of the sub-tenant by the tenant. Ibid. Although there could have been no beneficial occupation of premises. Ibid. Facts amounting to eviction. Furnivall v. Grove, xcviii. 496 ; 8 C. B. N. S. 496. ' ' 276 LANDLORD & TENANT, IX. (6), (c), (d), (a), X. (a), (6), (c), (d). On a demise of mines and minerals with a right to use a railroad, interference with the use of the road is not an eviction. Williams v. Hayward, cii. 1040 ; 1 E. & E. 1040. (c) Right op Tenant to deduct taxes, etc. Tenant may deduct from rent payment to adjoining building owner for party wall, under 18 & 19 Vict. c. 122. Earle v. Maugham, cviii. 626 ; 14 C. B. N. S. 626. Or he may at his election recover the amount paid in assumpsit. Ibid. Devise of rent charged on land of testator free from income tax is not within 5 & 6 Vict. c. 35, s. 103, and such rent must be paid free from tax. Festing ». Taylor, cxiii. 235 ; 3 B. & S. 235 ; reversing s. c. in Q. B., Ibid. 217. (d) Apportionment of rent. Rent apportioned up to time of termination of lease, under notice from tenant, under language of lease. Bridges v. Potts, cxii. 314; 17 C. B. N. S. 314. Quaere, whether it would have been so, under 4 & 5 Win. 4, c. 22, s. 2. Ibid. (e) Double rent. Remedy of double value under 4 Geo. 2, c. 28, s. 1, against a tenant wrongfully holding over is not given to a succeeding lessee but to the landlord. Blatchford v. Cole, xeiv. 514 ; 5 C. B. N. S. 514. X. Means for recovery op rent. (a) Distress, generally. Right of distress may be postponed by agreement. Giles v. Spencer, xci. 244 : 3 C. B. N. S. 244. Rector cannot distrain for rent-charge created in lieu of tithes, by 5 Geo. 4, c. 14, on lands owned before the passage of the act and for rent-charge on others bought subsequently. Bedford v. Sutton Colefield, xci. 449 ; 3 C. B. N. S. 449. But a distress for rent-charge on all the lands of any owner may be levied on the occupier of a part. Ibid. When a landlord directs a tenant to pay rent to another, he may distrain for any rent not paid. White v. Greenish, ciii. 210 ; 11 C. B. N. S. 210. A joint distress on goods in closes A. and B. for rent due on demise of each close, is good, if goods be taken on each close only for rent due on demise of that close. Phillips v. Whitsed, cv. 804 ; 2 E. & E. 804. An entry through a window fastened by a hasp, not lawful distress. Han- cock v. Austin, cviii. 634 ; 14 C. B. N. S. 634. There must be a demise of premises to authorize distress, a mere license to use fixtures not being sufficient. Ibid. Where title of assignees does not relate to act of bankruptcy, a distress after the act of bankruptcy for more than one year's rent, will be good, under 12 & 13 Vict. c. 106. Paull v. Best, cxiii. 537 ; 3 B. & S. 537. One joint tenant may demise his part to the other with the incidents of rever- sion and distress. Cowper v. Fletcher, cxviii. 464 ; 6 B. & S. 464. (6) Time at which distress should be made. Under 8 Ann. c. 14, s. 7, no distress can be made after determination of lease unless tenant remains in possession. Turner v. Barnes, ex. 435 ; 2 B. & S. 435. Subject considered in Am. Ed. note. Ibid. (c) Fraudulent removal by Tenant to avoid distress. Under agreement for lease at fixed rent, with actual possession on same terms as lease, there is a tenancy at will, and landlord can distrain for goods fraudu- lently removed. Anderson v. Midland Railway Co., cvii. 614 ; 3 E. & E. 614. (d) The seizure. Where the landlord did not seize the goods, but, by consent of the tenant, made an inventory, and put a man in possesr'on, it was held a good impounding. Ten- nant v. Field, xcii. 336 ; 8 E. &B. 336. LANDLOKD AND TENANT, X. (e), (/), (g), (h), (*), (As). 277 (e) What can be distrained. Tenant mortgaged goods on the property giving possession, and then became bankrupt, owing more than a year's rent, held that they could be distrained for the whole amount. Brooklehurst v. Lawe, xc. 176 ; 7 E. & B. 176. The goods were liable for rent becoming due after assignees declined the ten- ancy. Ibid. (/) The disposal of the distress. A tender, by tenant, of rent due and costs within five days of distress, though after impounding on premises, is valid. Johnson v. Upham, cv. 250 ; 2 E. & E. 250. After distress by a broker, a tender to a man left in charge, with knowledge that he was not authorized to receive the rents, and that the broker was conve- niently near, is a bad tender. Boulton v. Reynolds, 3v. 369 ; 2 E. & E. 369. ' (g) Wrongful distress. Under 11 Geo. 2, c. 19, tenant is entitled to recover for only actual damage, where distress irregular. Rodgers v. Parker, lxxxvi. 112; 18 C. B. 112. Landlord liable, in trespass, for acts of an agent who exceeded his authority and seized goods not distrainable. Gauntlett v. King, xci. 59 ; 3 C. B. N. S. 59. Bailiff having, on an execution, seized goods of a stranger, cannot, under 19 & 20 Vict. c. 108, s. 75, distrain them for rent due the landlord. Beard v. Knight, xcii. 865 ; 8 E. & B. 865. A threat to distrain and sell fixtures is not actionable. Beck v. Denbigh, xcviii. 888 ; 8 G. B. N. S. 888. Trespass lies for distraining tools of trade not in use, there being sufficient other distrainable goods on the premises. Nargett v. Nias, cii. 439 ; 1 E. & E. 439. One who has purchased the equity of redemption in a lease, and obtained from the mortgagee authority to collect the rents and an agreement to convey, may distrain for rent in arrear. Snell v. Finch, cvi. 651 ; 13 C. B. N. S. 651. Where distress is trespass ab initio, recovery can be had for whole amount of value of goods, not deducting the amount of rent due. Attack v. Bramwell, cxiii. 520 ; 3 B. & S. 520. If it were otherwise, a trespasser could take advantage of his own wrong. Ibid. (h) Irregular distress. Landlord is responsible for irregularities by the broker in conducting a dis- tress he was authorized to make. Haseler v. Lemoyne, xciv. 530 ; 5 C. B. N. S. 530. (i) Use and occupation. Lies where a lease was executed and delivered, but retained by lessor, with an understanding that lessee should go into possession as tenant from year to year, on its terms, until a certain sum should be paid. Gudgen v. Besset, lxxxviii. 986 ; 6 E. & B. 986. Where a tenant from year to year has quitted the premises and removed his goods at end of the year, after notice to quit, the accidental detention of the key for two days bevond expiration of term, is no evidence of use and occupation. Gray o. Bompas", ciii. 520; 11 C. B. N. S. 520 May lie by an auctioneer against one who bids for the privilege of using a common, the right to which is vested in the municipal corporation wherein the bidder is a freeman. Fisher v. Marsh, cxviii. 411 ; 6 B. & S. 411. (Jc) Other matters concerning recovery of rent. Bankruptcy of landlord no defence to suit by him where he had no beneficial interest. Houghton v. Koenig, lxxxvi. 235 ; 18 C. B. 235. Proof of counterpart lease and payment of rent, sufficient. Ibid. Where a mortgagor of leaseholds attorned to the mortgagee, and in the deed gave him the same powers of entry and distress as the law gives to landlords for the recovery of rent, held that it did not authorize the assignee of the mortgagee- to distrain for arrears due before the assignment. Brown v. Metropolitan Soci- ety, cii. 832; 1 E. & E. 832. 278 LANDLORD & TENANT, X. (k)— XII. L.C.C. ACT. Leaving goods distrained a few moments (to get some beer), is no evidence of abandonment of distress, and outer door may be broken, to re-enter. Bannister v. Hyde, cv. 628 ; 2 E. & E. 628. XI. Rent charge. Action does not lie by the rector against the owners of lands, to reoover the rent charge created in lieu of titles, by 5 Geo. 4, c. 14. Bedford v. Sutton Cold- field, xci. 449 ; 3 C. B. N. S. 449. Distress for rent charge on lands owned before the passage of the act, and for rent charge on others bought subsequently, is illegal. Ibid. But a distress for rent charge on all the lands of any owner'may be levied on the occupier of a part. Ibid. XII. Othee matters. Declarations of deceased tenant as to right of common against interest of rever- sioner, not evidence. Papendick v. Bridgewater, lxxxv. 166 ; 5 E. & B. 166. LANDS CLAUSES CONSOLIDATION ACT. Under Act 1845, unless ten days' notice of time and place of jury trial given claimant, he is allowed costs, even if amount recovered is less than tender. Metropolitan Railway Co. v. Turnham, cviii. 212 ; 14 C. B. N. S. 212. A person sustaining a particular injury by reason of the stoppage of a road without authority, in consequence of which an action would lie, is entitled to compensation, under Act 1845. Wood v. Stoubridge Railway Co., cxi. 222 ; 16 C. B. N. S. 222. But there is no compensation for crossing on a level. Ibid. When notice sufficient, under 8 & 9 Vict. c. 18, s. 68. Cameron v. Charing Cross Railway Co., cxi. 430 ; 16 C. B. N. S. 430. When company had actually taken premises, or jury had so found, they will be liable under 8 & 9 Vict. c. 18, s. 68, to termor for damages. Barker v. Metro- politan Railway Co., cxii. 785 ; 17 C. B. N. S. 785. What will constitute a taking possession within the act. Ibid. Proceedings under old warrant by Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, s. 68, where verdict and judgment have been set aside. Horrocks v. Metropolitan Railway Co., cxv. 139 ; 19 C. B. N. S. 139. Award of arbitrators under Lands Clauses Consolidation Act 1845 (8 & 9 Vict, c. 18), merely fixes the amount of damages. Re Newbold & Metropolitan Bail- way Co., cviii. 405 ; 14 C. B. N. S. 405. Such an award does not ascertain claimant's right to compensation. Ibid. Where special injury is suffered from the obstruction of a highway by open- ing a railroad, compensation can be obtained under 8 & 9 Vict. c. 18, s. 68. Chamberlain v. W. E. & C. P. Railway Co., ex. 605 ; 2 B. & S. 605. Award by arbitrators, under 8 & 9 Vict. c. 18, where damages might have been assessed, is final. Croft v. L. & N. W. Railwav Co., cxiii. 436 ; 3 B. & S. 436. The owner of right of shooting and fishing on land, not entitled to damages for injury thereto by building of railroad, under 68th sect. Bird v. G. E. Rail- way Co., cxv. 268 ; 19 C. B. N. S. 268. Semble, that the grant being under seal, would make no difference. Ibid. Obstruction of highway, causing injury to good will or loss of profit, where land is not taken, is not the subject of compensation to owner of business. Cameron v. Railwav Co. (Bourhill v. Same, reversing s. c. cxi. 430 ; 16 C. B. N. S. 430), cxv. 764"; 19 C. B. N. S. 764. LAW. LEGACY. LIBEL, I. (a). 279 LAW. The rights of the parties to a contract are to be judged of by that law by which they may justly be presumed to have bound themselves. Lloyd v. Gui- bert, cxviii. 100; 6 B. & S. 100. Where the contract of affreightment does not provide otherwise, the law of the ship should govern between the parties in respect to sea damage, and its in- cidents. Ibid. One who relies upon a foreign law is bound to bring it properly before the court and establish it in proof. Ibid. LEGACY. Assent to bequest by executor who never proved will, sufficient if letters of administration, c. t. a., afterward granted. Johnson v. Warwick, lxxxiv. 516 : 17 C. B. 516. LIBEL. I. What constitutes. (c) Plea of justification* (a) Privileged publication. id) Province of jury. (6) Literary criticism. (e) Evidence where justification II. The proceedings. pleaded. la) Liability for. (f) Malice. (6) The declaration. (g) Costs. I. What constitutes. Whether a letter, stating that plaintiff had done everything to annoy defendant, dragged him into a court of chancery and put him to great expense, is libellous, is for the jury, under the circumstances. Fray v. Fray, cxii. 603 ; 17 C. B. N. S. 603. Comparison of plaintiff's oil with another oil, alleging plaintiff's to be inferior and special damage, no ground of action. Young v. Macrae, cxiii. 264 ; 3 B. & It seems, that it would be otherwise if the oil were falsely and maliciously disparaged and special damage alleged. Ibid. Statement in newspaper that person disseminating religious truth was an im- postor, and did it to put money in his pocket, is libellous. Campbell v. Spottis- woode, cxiii. 769 ; 3 B. & S. 769. To say, in a newspaper, of a clergyman, that he came to church in a towering passion, moved by the spirit, and that his conduct was calculated to make infi- dels, is libellous. Walker v. Brogden, cxv. 65 ; 19 C. B. N. S. 65. (a) Privileged publication. Petition of citizen to the Secretary of State asking for removal of justice of the peace, is privileged, since that officer, though without power to remove, could inquire for the Queen. 'Harrison ». Bush, lxxxv. 344 ; 5 E. & B. 344. Bona fide communication in which party has an interest or duty is privileged, if made to person having corresponding interest or duty, though containing crimi- natory matter otherwise slanderous. Ibid. Quaere, whether mistake in sending privileged communication to wrong per- son would render party liable. Ibid. Whether or not communication privileged to be determined by judge. Cooke v. Wildes, lxxxv. 328 ; 5 E. & B. 328. 280 LIBEL, I. (o), (6), II. (a), (6), (c), (d). Paper filed in judicial proceeding. Revis v. Smith, Ixxxvi. 126 ; 18 C. B. 126. Not privileged because a fair newspaper report of what occurred at a public meeting. Davison v. Duncan, xc. 229 ; 7 B. & B. 229. Letter to plaintiff's attorney in reply to one threatening to bring suit, is not privileged. Huntley v. Ward, xcv. 5i4; 6 C. B. N. S. 514. Where it is prima facie a privileged communication, evidence of subsequent statements showing malice may be given, but if the interval be long, judge' should instruct the jury to consider the possibility of their referring to some- thing after the libel. Hemmings v. Gasson, xcvi. 346 ; E., B. & E. 346. A fair report of proceedings before a magistrate, on the preliminary investiga- tion of a criminal charge resulting in a dismissal of the complaint, is privileged. Lewis v. Levy, xcvi. 537 ; E., B. & E. 537. Though there has been separate publication of each day's proceedings. Ibid. Aliter, as to comments. Ibid. Libellous communications by clergyman, sent in the discharge of a social and moral duty, are privileged. Whiteley v. Adams, cix. 392 ; 15 C. B. N. S. 392. So also where it is clearly to the interest of the party. Ibid. Quaere, whether a communication from one person to another recommending a servant as to character would be privileged. Fryer v. Kinnersley, cix. 422 ; 15 C. B. N. S. 422. But it would not be where the expressions are in excess of the occasion. Ibid. As to difficulty of drawing line in privileged communication. Eng. Ed. note. Ibid. (6) Literary criticism. A tradesman's hand-bill is like a book subject to fair criticism which does not involve private character. Paris v. Levy, xcix. 342 ; 9 C. B. N. S. 342. In action for statements in newspaper which are libellous, it is no defence that defendant bona fide believed in the truth of statements. Campbell v. Spottis- woode, cxiii. 769 ; 3 B. & S. 769. What are fair comments so as not to be libellous. Ibid. II. The pboceedings. (a) Liability for. An action lies against a corporation aggregate for libel. Whitfield v. S. E. Railway Co., xcvi. 115 ; E., B. & E. 115. (6) The declaration. Under sect. 61 of Common Law Procedure Act 1852, the declaration need not state any colloquium. Hemmings v. Gasson, xcvi. 346 ; E., B. & E. 346. (o) Plea of justification. To a libel declaring that nothing was too base for plaintiff to be guilty of, a plea that he falsely and fraudulently asserted his signature to an I. 0. U. to be forgery, and that it was written solely with reference to this transaction, is a sufficient justification. Tighe v. Cooper, xc. 639 : 7 E. & B. 639. Court refused to permit one general plea of justification to three counts for three distinct libels. Honess v. Stubbs, xcvii. 555 ; 7 0. B. N. S. 555. It is no justification that person publishing libellous statement in newspaper believed it to be true. Campbell v. Spottiswoode, cxiii. 769 ; 3 B. & S. 769. Plea, that charge made in newspaper of improper conduct in church, by cler- gyman, is true, is good. Walker v. Brogden, cxv. 65 ; 19 C. B. N. S. 65. A plea that a libel, contained in an article in a newspaper, is only a comment on another article in same newspaper, is bad. Ibid. Stating that a penalty imposed upon plaintiff, on a conviction before justices, was three weeks' imprisonment, when in fact it was only two, does not make the publication libellous in law. Alexander v. N. E. Railway Co., cxviii. 340 ; 6 B. & S. 340. (d) Province of jury. For the jury to determine whether there is malice. Cooke v. Wildes, lxxxv. 328 ; 5 E & B. 328. The alleged libel being an inaccurate publication of the penalty imposed upon LIBEL, II. (d), (e), (/), (g). LICENSE. 281 plaintiff, on a conviction before magistrates, it is for the jury to say whether the statement was substantially true. Alexander v. N. 15. Railway Co., cxviii. 340 ; 6 B. & S. 340. (e) Evidence where justification pleaded. Where libel charged fraudulent conduct upon agent of the plaintiff, imputing complicity in the plaintiff, and the plea of justification following innuendo al- leged, " as the plaintiffs well knew," the defendant was held bound to prove the complicity. Prior v. Wilson, lxxxvii. 95 ; 1 C. B. N. S. 95. (f) Malice. Malice is the foundation of an action for defamation: per Erie, 0. J. White- ley v. Adams, cix. 392 ; 15 C. B. N. S. 392. But defamation pure and simple affords presumptive evidence of malice. Ibid. (g) Costs. Where plaintiff succeeded on the plea of justification, and defendant on plea of not guilty, and where plaintiff's testimony went to prove the falsity of alleged facts, and also to raise inference of knowledge on part of defendant of their falsity, and defendant's testimony, part of which was unknown to him at time of publication, was as to their truth, held that defendant entitled to costs for all witnesses, plaintiff for none. Harrison v. Bush, lxxxv. 344 ; 5 E. & B 344. LICENSE. Deed transferring a future interest in goods and giving license to take possession, under which vendee, with consent of vendor, afterward took possession, gave good title. Hope v. Hayley, lxxxv. 830 ; 5 E. & B. 830. In a suit for the use of a patent right under agreement, it is no defence that the patent was void. Lawes v. Purser, lxxxviii. 930 ; 6 E. & B. 930. Consent, under 8 & 9 Vict. c. 18, s. 124, not inferred from non-interference, both parties supposing the title to be in a third person. M. of Salisbury v. G. N. Railway Co., xciv. 174 ; 5 C. B. N. S. 174. Where a mortgagor of leaseholds attorned to the mortgagee, and in the deed gave him the same powers of entry and distress as the Taw gives to landlords for the recovery of rent, held that it did not authorize the assignee of the mort- fagee to distrain for arrears due before the assignment. Brown v. Metropolitan ociety, cii. 832 ; 1 E. & E. 832. License to use fixtures, upon payment of weekly sum, not a lease. Hancock Austin, cviii. 634 ; 14 0. B. N. S. 634. Licensees of bathing-machine cannot place it on private property. Mace v. Philcox, cix. 600; 15 0. B. N. S. 600. Licensee of patent, as against licensor, cannot dispute novelty or usefulness of invention or completeness of specifications, if they be sufficiently expressive of the thing. Trotman v. Wood, cxi. 479 ; 16 C. B. N. S. 479. Vendees of licensee of patent can sell without consent of patentee. Thomas v. Hunt, cxii. 183 ; 17 C. B. N. S. 183. When a company demised a dockyard, reserving a patent slip to themselves, their successors and assigns, officers, servants, and workmen, and the dues and payments payable for the use thereof, held they might grant licenses to use the slip. Metcalfe v. Westaway, cxii. 658 ; 17 C. B. N. S. 658. The word assigns not construed in its strict sense. Ibid. Difference between license and grant discussed in note. Bird v. G. E. Railway Co., cxv. 268 ; 19 C. B. N. S. 268. Where licensor treats license as existing after cause of forfeiture has occurred, he cannot subsequently revoke license. Ward v. Day, cxvi. 337 ; 4 B. & S. 337. Affirmed in Ex. Ch., cxvii. 359 ; 5 B. & S. 359. And an assignment by licensee makes no difference. Ibid. 282 LICENSES TO TKADE. LIEN, I., II. (a). LICENSES TO TEADE. Semble, that owners of ferries, within sect. 99 of 7 & 8 Geo. 4, c. 75, do not require a license. Matthews v. Peache, Ixxxv. 546 ; 5 E. & B. 546. A borough may be a town corporate, within the licensing act, 9 Geo. 4, c. 61, though it has not a separate court of Quarter Sessions. Brown v. Nicholson, xciv. 468 ; 5 0. B. N. S. 468. A license granted by the borough justices, at a duly appointed license meeting, is valid, though the county justices had previously appointed a license meeting later. Ibid. The county justices have exclusive authority to grant ale-house licenses, under 9 Geo. 4, c. 61, within a borough having no separate court of Quarter Sessions. Candlish v. Simpson, ci. 357 ; 1 B. & S. 357. It is the duty of the commissioners of police, under 6 & 7 Vict. c. 86, to see to the behavior of persons applying for licenses as conductors of stage car- riages. Ex parte Mitcham, cxvii. 585 ; 5 B. & S. 585. A person plying a hackney carriage for hire in a town, must take out a license, under 10 & 11 Vict. c. 89, though he has paid posthorse duty. Buckle v. Wright- son, cxvii. 854 ; 5 B. & S. 854. To make a house a place for public dancing or music, within 25 & 26 Vict. c. 123, the dancing or music must be essential to the entertainment, not merely subsidiary. Quaglieni v. Matthews, cxviii. 474 ; 6 B. & S. 474. The charter of the Trinity House of Leith, 37 Geo. 3, 1797, and 1 Geo. 4, c. 37, s. 32, confirming it, limit its authority to license pilots to the coast of Scot- land. Hossack v. Gray, cxviii. 598 ; 6 B. & S. 598. LIEN. I. Generally. (d) Wharfinger's Lien. II. Lien in particular cases. (e) Lien of shipowner for hire (a) Carrier's Lien. of ships. (6) Innkeeper's Lien. III. Lien in other trades, (c) Vendor's Lien for unpaid purchase-money. I. Generally. A lien is waived by the party's asserting a right to detain the chattel on another § round, without mentioning the lien. Weeks v. Goode, xcv. 367 ; 6 C. B. N. S. 67. An artificer retaining a chattel in the exercise of his right of lien, has no claim upon the owner for taking care of it. British Empire Shipping Co. v. Somes, xcvi. 353 ; E., B. & E. 353. One who, without a contract, raises the ore of another, sunk in a navigable river, has no lien. Castellain v. Thompson, cvi. 105 ; 13 C. B. N. S. 105. A person who has a lien upon a chattel, cannot add a charge for keeping it to the amount for which he has a lien. Somes v. Shipping Co., cvii. 766 ; 3 E. & E. 766. And when such a charge is made and paid under protest, money can be re- covered back. Ibid. Where a cargo of timber is agreed to be specially appropriated for money advanced, it constitutes a charge in equity. Langton v. Waring, cxiv. 315; 18 C. B. N. S. 315. II. Lien in particular cases. (a) Carrier's Lien. Carrier of passengers' goods for which company is entitled to charge has lien until proper charges were tendered. Rumsey v. N. E. Railway Co., cviii. 641 j 14 C. B. N. S. 641. LIEN, II. (b), (c), (d), (e), III. 283 (6) Innkeeper's Lien. Extends to goods of third person in possession of guest. Snead v. Watkins, lxxxvii. 267 ; 1 C. B. N. S. 267. (c) Vendor's Lien for unpaid purchase-money. A promise, by the assignee of a contract of sale, to pay the original vendor in consideration of his giving up his lien, is not within the Statute of Frauds. Fitzgerald v. Dressier, xciv. 885 ; 5 C. B. N. S. 885. Also, xcvii. 374 ; 7 C. B. N. S. 374. Where the vendor sold goods lying in his warehouse, undeliverable without his order, and the vendee resold them giving a delivery order, which was accepted by the first vendor, followed by partial delivery, the first vendor could not, on the insolvency of the first vendee without payment, claim a lien on the balance as against the second vendee. Pearson v. Dawson, xcvi. 448 ; E., B. & E. 448. Shipment of salt on vessel of vendee upon mate's receipt to vendor before execution of bill of lading, still subject to retention for lien of vendor on ac- count of the insolvency of vendee, there being no intention to deliver. Falk v. Fletcher, cxiv. 403 ; 18 C. B. N. S. 403. Circumstances entitling vendor to exercise right of lien. Ibid. Where goods are sold and shipped in vessel chartered by vendee to be paid in cash against bill of lading in hands of vendor's agent, upon non-compliance with condition, vendor can intercept the goods. Moakes v. Nicolson, cxv. 290 : 19 C. B. N. S. 290. (d) Wharfinger's Lien. Dock company cannot claim a general lien, under 10 & 11 Vict. c. 27, s. 45. Dresser v. Bosanquet, cxvi. 460, 486 ; 4 B. & S. 460, 486. (e) Lien of shipowner for hire of ship. Outward cargo to go free, freight on return cargo, 900Z. of which to be paid three months after sailing out, owners to have a lien on cargo for all freights, held that owners had a lien on the outward cargo for the900Z. Gilkison v. Mid- dleton, lxxxix. 134 ; 2 C. B. N. S. 134. But where master had signed bills of lading, agreeing to deliver the goods named in them upon payment of certain freight, and advances had been made on the faith of these bills, the lien was limited to this amount. Ibid. Agreement in bill of lading that freight shall be paid by shipper one month after sailing, does not waive the lien for freight. Neish v. Graham, xcii. 505 ; 8 E. & B. 505. Lien for charter freight is good against an assignee of the bill of lading, who is agent for the charterer and has notice of the charter-party. Kern v. Deslan- des, c. 205 ; 10 C. B. N. S. 205. No greater right to lien for freight than that of shipowner can be transferred. Matthews v. Gibbs, cvii. 282 ; 3 E. & E. 282. But, it seems, that can be transferred. Ibid, in notes. Lien of owner for freight, under charter-party, where goods are shipped by agent of charterer and terms subsequently changed by master of vessel. Pear- son v. Goschen, cxii. 352 ; 17 C. B. N. S. 352. Where part of freight is to be advanced by acceptance of charterer and accept- ance is given, lien of owner is gone to that extent. Tamvaco v. Simpson, cxv. 453 ; 19 C. B. N. S. 453. III. Lien in other trades. Shipwright has a lien for repairs ordered by mortgagor as against mortgagee, who permits mortgagor to continue in apparent ownership. Williams v. Allsup, c. 417; 10C. B.N. 5.417. Shipwright repairing ship only has lien for repairs and cannot charge for keeping ship. Somes v. Shipping Co., cvii. (H. of L.) 766 ; 3 E. & E. 766. When such money is exacted and paid under protest it can be recovered back. 284 LIMITATIONS, I. (a)— IV. (a). LIMITATIONS. I. Limitation of actions generally. (6) What is a sufficient acknowl- (a) When the statute begins to edgment. run. (c) Acknowledgment since 9 Geo. II. Limitation of actions for real es- 4, c. 14. tate. (d) Acknowledgment by one III. Limitation of personal actions. joint debtor. IV. What will take a case out of the (e) Part payment. statute. V. Other cases in which the statute ap- (a) Sufficient commencement of plies, suit. I. Limitation op actions generally. Limitation under Jervis's Act, 11 & 12 Vict. c. 43, s. 11, runs only from the time when right of giving notice expired. Jacomb v. Dodgson, cxiii. 461 ; 3 B. & S. 461. (a) When the statute begins to bun. For malicious use of an affidavit in opposing the discharge of a debtor, the statute begins to run with the lodging of the detainer and not the expiration of the imprisonment. Violett v. Sympson, xcii. 344 ; 8 E. & B. 344. For injuries caused to the surface by careless working of a mine under an adjacent property, the statute begins to run from the time of the injury, not of the working. Bonomi v. Backhouse, xcvi. 622; E., B. & E. 622. Affirmed in House of Lords, ci. 970 ; 1 B. & S. 970. 3 Geo. 4, c. 126, does not require that actions under it should be brought within three months from the commencement of a continuing injury. White- house v. Fellowes, xcix. 901 ; 9 C. B. N. S. 901. II. Limitation of actions for real estate. An answer, in a chancery suit, admitting title, made within twenty years by person through whom defendant claims, is a sufficient acknowledgment, within 3 & 4 Wm. 4, c. 27, s. 14. Goode v. Job, cii. 6 ; 1 E. & E. 6. To come within 3 & 4 Wm. 4, c. 27, there must be the same tenancy during the whole twenty-one years. Locke v. Matthews, cvi. 753 ; 13 C. B. N. S. 753. Under 3 & 4 Wm. 4, c. 27, as to waste lands of manor, the holding must be adverse, to bar right of lord. Hodgson v. Hooper, cvii. 149 ; 3 E. & E. 149. What constitutes a lease at will, or at most a holding from year to year, will not be sufficient. Ibid. Admission of tenancy, since 3 & 4 Wm. 4, c. 27, to rebut the presumption of possession. Ibid. Quaere, whether if there is intent to convey freehold, but from some defect only a tenancy at will created, possession will be adverse. Ibid. III. Limitation of personal actions. S. 10 of 19 & 20 Vict. c. 97, applies to actions commenced after the passage of the act, for causes which accrued before. Cornhill v. Hudson, xcii. 429 ; 8 E. & B. 429. Under s. 73 of 18 & 19 Vict. c. 122, the matter of complaint, within the mean- ing of 11 & 12 Vict. c. 43, s. 11, arises when the demand is made, not when the expenses incurred. Labalmondiere v. Addison, cii. 41 ; 1 E. & E. 41. Under 53 Geo. 3, c. 127, s. 7, action against justices, deciding against bona fides of dispute of rate, must be begun within three months. Pease v. Chaytor, cxiii. 620 ; 3 B. & S. 620. An executor must bring suit before six years have elapsed, even though it be begun witihin a reasonable time after decedent's death. Penny v. Brice, cxiv. 393; 18 C. B. N. S. 393. IV. What will take a case out of the statute. (a) Sufficient commencement of suit. Where suit abated by death of defendant, and another was commenced against LIMITATIONS, IV. (a), (6, (c), (d), (e), V. LUNATIC. 285 administrator, four years after death, but within one year after granting letters, it was not affected by the statute. Curlewis v. Lord Mornington, xc. 283 ; 7 E. &B. 283. It is not sufficient on last day, a holiday, to save the statute, to go to the office for purpose of resealing writ, and find it closed ; and court will not order officer to reseal nunc pro tunc. Evans v. Jones, ex. 45 ; 2 B. & S. 45. (6) What is a sufficient acknowledgment. An unaccepted promise of a kind not to bind defendant unless accepted is in- sufficient. Buckmaster v. Russell, c. 745 ; 10 C. B. N. S. 745. A petition of debtor under 7 & 8 Vict. c. 70, naming the debt among others, and proposing for the future payment or compromise of such debts to assign his estate, is not sufficient. Everett v. Robertson, cii. 16 ; 1 E. & E. 16. (c) Acknowledgment since statute 9 geo. 4, c. 14. Making out an account with the name at the top, which includes the debt and was furnished the plaintiff, is sufficient. Holmes v. Mackrell, xci. 789 ; 3 C. B. N. S. 789. Qucere, whether writing across a note tnat it is renewed by re-signing, accom- panied by the signature, but without a stamp, is sufficient. Ibid. A written promise based upon a condition not performed, is insufficient. Francis v. Hawkesly, cii. 1052 ; 1 E. & E. 1052. (d) Acknowledgment by one joint-debtor. Payment by one co-contractor, with the knowledge and assent of the other, does not, since the Mercantile Law Amendment Act 1856, take the transaction out of the atatute as to the latter. Jackson v. Woolley, xcii. 778 ; 8 E. & B. 778. (e) Part payment. Where debtor made purchases at different times, and within the six years made a payment on account, without the exact amount due being determined, held evidence to take the whole out of the statute. Walker v. Butler, Ixxxviii. 506 : 6 E. & B. 506. V. Other cases in which the statute applies. Evidence that plaintiff was never in England, though sometimes absent from his home in Frankford for a month, is sufficient to go to the jury on the question of absence from the realm. Koch v. Shepherd, lxxxvi. 191 ; 18 C. B. 191. That the cause of claim did not accrue within six months is no answer to a count claiming a mandamus under Common Law Procedure Act of 1854. Ward v. Lowndes, cu. 940 ; 1 E. & E. 940. LUNATIC. Committee of visitors is authorized to contract for plan for asylum and may be sued for it when made. Kendall v. King, lxxxiv. 483 ; 17 C. B. 483. And for work beyond written contract. Ibid. May be sued even if there can be no execution. Ibid. Order requiring parish of settlement to pay expenses incurred by another parish good, though lunacy not permanent. Regina v. Guardians of Manches- ter, Ixxxviii. 919 ; 6 E. & B. 919. Though the particular address of one of the three guardians not given in the copy of the order. Ibid. This omission could be rectified by the Quarter Sessions. Ibid. The union, in which is the parish of residence of an irremovable pauper, charged with his expenses in a lunatic asylum. Regina v. West Ward Union, xc. 21 ; 7 E. & B. 21. 286 LUNATIC. MAGISTRATE, I. 16 & 17 Vict. o. 97, throws the expense of an irredeemable pauper lunatic on the parish of residence, though there is an existing order on the parish of settle- ment. Knowles v. Trafford, xc. 144 ; 7 E. & B. 144. Parish in which pauper has status of irremovability liable for expenses, though pauper became lunatic during temporary visit to another parish. Leeds v. Wake- field, xc. 258 ; 7 E. & B. 258. A borough having a separate Quarter Sessions and contributing to the coun- ty rate is not liable for the expenses of a lunatic whose settlement is unascer- tained, sent from it to an asylum. Guardians of Birmingham v. Beaumont, xcii. 870 ; 8 E. & B. 870. Wife of a lunatic, who has no committee, permitted to take money out of court. Gleddon v. Trebble, xcix. 367 ; 9 C. B. N. 8. 367. No justification of imprisonment that plain tiff conducted himself as if insane and defendant believed hirato be so. Fletcher v. Fletcher, cii. 420; 1 E. & E. 420. Where an order of maintenance is obtained by the guardians of a union on behalf of the overseers of a township, the overseers are the proper parties to sign the statement. Regina v. Heaton, cii. 782 ; 1 E. & E. 782. An order of justices under 16 & 17 Vict. c. 97, adjudging a lunatic to be chargeable to the county, is not final, and the justices may, on application of county, subsequently give him a settlement in parish obtaining first order. All Saints o. Middlesex, cv. 829 ; 2 E. & E. 829. Sect. 14 of 5 Vict. c. 22, is not affected by 1 & 2 Vict. c. 110, or repealed by 16 & 17 Vict. c. 96. Gore v. Grey, cvi. 138 ; 13 C. B. N. S. 138. Conveyance by wife of lunatic of her separate property, under 3 & 4 Wm. 4, c. 74, s. 91, not allowed without some statement as to husband's property. In re Sarah Cloud, dx. 833 ; 15 C. B. N. S. 833. Powers .of justices for removal and settlement of pauper lunatic, under 16 & 17 Vict. ss. 67, 97, 132. Faversham v. Isle of Thanet, ex. 275 ; 2 B. & S. 275. Liability of chaplain and medical superintendent respectively to poor rates, under Lunatic Asylum Act, 16 & 17 Vict. c. 97. Congreve v. Upton, cxvi. 857 ; 4 B. & S. 857. The admission of lunatics not belonging to the county, and of lunatics not paupers, does not take an asylum out of sect. 35 of 16 & 17 Vict. c. 97. Begina v. Fulbourn, cxviii. 451 ; 6 B. & S. 451. That the asylum holds lands for the benefit of the inmates by labor, does not take it out of the statute, though a profit is made, and it is not rateable for the profit. Ibid. An order for the expenses of a lunatic, under 16 & 17 Vict. c. 97, s, 97, must be made on the guardians of the parish not of the uni^n, where the parish is a member of a union, under Gilbert's Act 22 Gjo. 3, c. 88. Leatham v. Bolton Le Sands, cxviii. 547 ; 6 B. & S. 547. There is no appeal from an order of the justices for the maintenance of a pauper lunatic made under sect. 96 of 16 & 17 Vict. c. 97. Begina v. Northamp- ton, cxviii. 653 ; 6 B. & S, 653. MAGISTRATE. I. General matters relating to. (6) Summary conviction by. II. Proceedings before Magistrates. III. Proceedings against Magistrate. (a) Jurisdiction. IV. Mandamus to Magistrate. I. General matters relating to. Where an appeal is determined by interested magistrates, the proper course is to quash on certiorari. In re Hopkins, xcvi. 101 ; JE., B. & E. 101. _ Under 5 & 6 Vict. c. 106, a magistrate is not bound to convict an unlicensed victualler on evidence that prostitutes assembled at his shop without disorder. Greig v. Bendeno, xcvi. 133 ; E., B. & E. 133. MAGISTRATE, I, II. (a). 287 Under 5 & 6 Vict. o. 109, the discretion rests with the justices to determine the number of parochial constables. Regina v. North Bierley, xcvi. 519 ; E., B. & E. 519. Mayor given precedence, by 5 & 6 Wm. 4, c. 76, s. 57, not entitled to preside at meeting of borough justices. Ex parte Mayor of Birmingham, cvii. 222 ; 3 E. & E. 222. Such precedence is social, not magisterial. Ibid. Magistrates will be compelled, by rule, to levy rate duly voted. Regina v. Roberts, cxiii. 495 ; 3 B. & S. 495. Order for payment by magistrate, under 3 & 4 Vict. c. 110, s. 16, must be for immediate payment. Parker v. Boughey, cxiii. 43 ; 3 B. & S. 43. Court will not draw inferences of fact, on appeal from magistrates, under 11 & 12 Vict. c. 43, s. 5, but may send the case back with an intimation of their opinion that there is sufficient evidence to convict. Stacey v. Whitehurst, cxiv. 344; 18 C. B. N. S. 344. II. Proceedings before Magistrates. Table of fees of magistrates' clerks must be approved at the Sessions next after it is made. Bowman v. Blyth, xc. 26 ; 7 E. & B. 26. Clerk who, by mistake, charged a fee for two sureties, though there was but one, not liable to penalty, under 26 Geo. 2, c. 14. Ibid. Court refused to entertain a rule ordering magistrate to adjudicate and convict a gas company for opening ground without consent of Board of Works. Regina v. Paynter, xc. 328; 7 E."& B. 328. Magistrate having determined that a certain street was not a " new street," under 18 & 19 Vict. e. 120, and that therefore he had no jurisdiction, it was held an adjudication. Regina v. Dayman, xc. 672 ; 7 E. & B. 672. Dismissal of a complaint, under 18 & 19 Vict. c. 108, s. 11, on the ground that all the owners were not included, is not an exercise of jurisdiction. Regina v. Brown, xc. 757 ; 7 E. & B. 757. An appeal lies to the Quarter Sessions from an order of the justices, under 5 & 6 Wm. 4, c. 50, s. 23, that a dedicated highway is not of sufficient utility. Regina v. Justices of Derbyshire, xcvi. 69 ; E., B. & E. 69. Court will not hear an appeal from the decision of a magistrate, that a certain row of houses formed a street, under 18 & 19 Vict. c. 122. Newman v. Baker, xcviii. 200 ; 8 C. B. N. S. 200. Variance in proceedings before magistrate cured by 11 & 12 Vict. c. 43, s. 1. Whittle v. Frankland, ex. 49 ; 2 B. & S. 49. Where an appeal is given to the Sessions, justices have no jurisdiction to in- quire into validity of rate imposed by Sunderland Local Act (1719), s. 5. Wil- son v. Sunderland, cxii. 694 ; 17 C. B. N. S. 694. Discretion of justices limited to matters placed within it. Regina v. Boteler, cxvi. 959 ; 4 B. & S. 959. (a) Jurisdiction. Magistrates having found a fact which made a rate bad, court refused to review their decision on motion for issue of a warrant. Regina v. Dunn, xc. 220 ; 7 E. & B. 220. Where auditor has surcharged a relieving officer, magistrates cannot refuse a distress warrant. Regina v. Linford, xc. 950 ; 7 E. & B. 950. Under 5 & 6 Wm. 4, c. 50, s. 95, the justice has no discretion to inquire as to liability to repair a highway, but must order an indictment to be preferred against party charged. Regina v. Arnould, xcii. 550 ; 8 E. & B. 550. In proceedings to obtain possession, under 1 & 2 Vict. c. 74, after tenancy proven, tenant cannot oust the jurisdiction by setting up title in a third person. Bees v. Davies, xciii. 56 ; 4 C. B. N. S. 56. Under s. 7 of 53 Geo. 3, c. 127, the justices have no jurisdiction concerning a rate, if its validity be bona fide questioned, and they cannot arbitrarily disbelieve the bona fides. Regina v. Nunnely, xcvi. 852 ; E., B. & E. 852. Have no jurisdiction, under 1 & 2 Wm. 4, c. 32, s. 30, where they are satisfied that defendant sets up a bona fide claim of title. Legg v. Pardoe, xcix. 289 ; 9 C. B. N. S. 289. 288 MAGISTRATE, II. (a). Magistrates cannot summarily enforce payment of a church rate by a Quaker where title bona fide in question. Backhouse v. Bishopwearmouth, xcix. 315 ; 9 C. B. N. S. 315. The county justices have exclusive authority to grant ale-house licenses, under 9 Geo. 4, c. 61, within a borough having no separate court of Quarter Sessions. Candlish v. Simpson, ci. 357 ; 1 B. & S. 357. The justices cannot determine a complaint, under 18 & 19 Vict. c. 121, unless both the cause and effect of the nuisance be within the area of their jurisdiction. Eegina v. Cotton, cii. 203 ; 1 E. & E. 203. An order under 18 & 19 Vict. c. 22, s. 73, must show that the owner was sum- moned to answer the complaint and an adjudication of its truth, and the jus- tice at the hearing may inquire as to the validity of the order. Labalmondiere v. Frost, cii. 527 ; 1 E. & E. 527. A justice has no jurisdiction to inquire into the validity of an order of surcharge against the guardians made by an auditor, under 11 & 12 Vict. c. 91. Begina v. Finnis, cii. 935 ; 1 E. & E. 935. To oust jurisdiction of magistrates, under 53 Geo. 3, c. 127, s. 7, notice that validity of rate is disputed, must be given in such way as to induce justices to forbear from giving judgment. Regina v. Salop, cv. 387 ; 2 E. & E. 387. Magistrates have no power to refuse to enforce a rate good on its face and un- appealed from. Luton Board of Health v. Davis, cv. 678 ; 2 E, & E. 678. Jurisdiction under 7 & 8 Vict. 101, is not ousted by agreement of mother to release putative father, but justices must consider agreement in making order. Follit v. Koetzow, cv. 730 ; 2 E. & E. 730. Have no jurisdiction over the question of beneficial occupation, where called upon to enforce a rate good on its face and not appealed from. Begina v. Brad- shaw, cv. 836 ; 2 E. & E. 836. Have jurisdiction of crimes committed on sea-shore between high and low- water mark. Embleton v. Brown, cvii. 234 ; 3 E. & E. 234. Magistrates have no jurisdiction to order an indictment against parish for not keeping highway in repair under 5 & 6 Wm. 4, c. 50, s. 95, where there has been previous acquittal. Ex parte Bartlett, cvii. 253 ; 3 E. & E. 253. Under 16 & 17 Vict. c. 97, ss. 67, 132, justice has no jurisdiction for removal of pauper lunatic to asylum, unless the borough have a Quarter Sessions. Faversham v. Isle of Thanet, ex. 275 ; 2 B. & S. 275. Under 5 & 6 Wm. 4, c. 50, s. 73, justices have power to decide whether it is a highway or not to which obstruction applies. Williams v. Adams ex. 312; 2 B. & S. 312. In such case the title to land does not come in question. Ibid. Extends to cases of contracts between master and employees under 20 Geo. 2, c. 19, s. 1, where the contract is for no specified time, but wages are in arrear. Taylor «. Carr, ex. 335 ; 2 B. & S. 335. Justices held under local acts to have no jurisdiction to pass on the validity of a church rate. Ex parte May, ex. 426 ; 2 B. & S. 426. If notice be given that validity of church rate is disputed in proceeding for non-payment before decision of magistrate, under 53 Geo. 3, c. 127, s. 7, prov. 3, their jurisdiction is ousted. Ex parte Mannering, ex. 431 ; 2 B. & S. 431. Powers of magistrates, under Metropolis Local Management Act, 25 & 26 Vict, c. 102. St. George v. Sparrow, cxi. 209 ; 16 C. B. N. S. 209. Under 20 Geo. 1, c. 19, s. 1, justices may make a deduction from wages of artificer, upon ground that the work has not been well done. Sharp v. Hains- worth, cxiii. 139 ; 3 B. & S. 139. Where only portion of turnpike is finished justices have jurisdiction to apply part of highway rate for repairs, under 4 & 5 Vict. c. 59. Roberts v. Roberts, cxiii. 183; 3B. & S. 183. Jurisdiction of justices under 1 & 2 Wm. 4, c. 32, s. 30, not ousted by claim of prescriptive right to shoot, where there is no color for such claim. Cornwell v. Sanders, cxiii. 206 ; 3 B. & S. 206. Nor by the assertion that land was in the occupation of third persons and not the lord of the manor. Ibid. Under Public Health Act, 11 & 12 Vict. c. 63, s. 54, the discretion of board of health to decide upon necessary works cannot be reviewed by justices. Har- greaves v. Taylor, cxiii. 613; 3 B. & S. 613. MAGISTRATE, II. (a), (6). 289 Under 53 Geo. 3, c. 127, s. 7, in a levy of a church rate to oust the jurisdiction of the justices, the levy must be disputed bona fide. Pejise v. Chaytor, cxiii. 620 ; 3 B. & S. 620. The justices decide upon .the bona fides. Ibid. Jurisdiction of magistrates, under 24 & 25 Vict. c. 100, s. 42, not ousted by fact that there was contradictory evidence of felony before them. "Wilkinson v. Dutton, cxiii. 821 ; 3 B. & S. 821. Order of justices for indictment in case of disputed liability of parish to re- pair, good, under 5 & 6 Wm. 4, c. 50, s. 95, and 23 & 24 Vict. c. 68. Regina e. James, cxiii. 901 ; 3 B. & S. 901. In proceedings under 25 & 26 Vict. c. 102, s. 98, magistrate has exclusive con- trol of the costs. Board of "Works v. Cox, cxv. 445 ; 19 C. B. N. S. 445. Qucere, whether mayor of borough is ajustice of the quorum. Regina v. Llan^ian, cxvi. 249 ; 4 B. & S. 249. Under 24 & 25 Vict. c. 96, s. 24, where title to right of fishery is disputed bona fide, justices have no jurisdiction. Regina v. Stimpson, cxvi. 301 ; 4 B. & S.301. It seems, that where there is no reasonable evidence that it was a bona fide claim, they would have jurisdiction. Ibid. Justices' conviction for one oath twenty times repeated, as a cumulative penalty- good. Regina v. Scott, cxvi. 368 ; 4 B. & S. 368. A mistaken, but bona fide claim of right to a fishery will not oust jurisdiction of justices, under 24 & 25 Vict. c. 96, s. 24. Hudson v. MacRae, cxvi. 585 ; 4 B. & S. 585. The power to rescind a proteotioa order, under 20 & 21 Vict. c. 85, s. 21, is restricted to the magistrate by whom it was granted. Regina v. Arnold, cxvii. 322 ; 5 B. & S. 322. Cannot, under 5 & 6 "Wm. 4, c. 50, order a highway to be closed because an- other road not yet made will be nearer or more commodious. Regina v. Midg- ley, cxvii. 621 ; 5 B. & S. 621. There is no appeal from an order of the justices for the .maintenance of a pauper lunatic made under sect. 96ofl6&17 Vict. , c. 97. Regina v. Northampton, cxviii. 653 ; 6 B. & S. 653. The objection under sect. 3 of 8 & 9 Vict. c. 20, that a justice is interested may be waived. "Wakefield v. W. R. & G. Railway Co., cxviii. 794 ; 6 B. & S. 794. The penalty for disobedience to an order to repair a road under sect. 58, must be imposed by the same justices who made it. Ibid. (6) Summary conviction by. Where magistrate held that he was bound by a bad by-law, under 11 & 12 Vict. c. 63, because it had been allowed, the conviction was quashed. Regina v. Wood, lxxxv. 49 ; 5 E. & B. 49. Quarter Sessions cannot dismiss appeal from a summary conviction because of want of notice required to be given under a rule. In re Blues, lxxxv. 291 : 5 E. & B. 291. Commitment under Vagrant Act, 5 Geo. 4, c. 83, stating that A., a reputed thief, frequenting the public streets, was found in railway place with intent to commit a felony, is sufficient. Ex parte Thomas Cross, lxxxvii. 573 ; 1 C. B. N. S. 573. A potter convicted under 4 Geo. 4, c. 34, s. 3, and not returning to his ser- vice after expiration of imprisonment, may be again convicted. Ex parte Baker, xc. 697 ; 7 E. & B. 697. Statement in the conviction that he did "misconduct himself in his said ser- vice," is a finding that he entered the service. Ibid. Prom statement in the conviction that misconduct appeared from examination of witness in presence of party " as otherwise," it is not to be inferred that evi- dence was given not in his presence. Ibid. Statement in conviction that he misconducted himself by "neglecting and absenting himself," is not a finding of two offences. Ibid. Building a shop front to the foot-pavement, and projecting the plinths of the pilasters over it, not an offence, under 5 & 6 Wm. 4, c. 7, s. 90. Regina v. Dick- enson, xc. 831 ; 7 E.-& B. 831. Conviction under a police regulation, in 4 & 5 Wm. 4, c. 85, may be drawn Vol. III.— 19 290 MAGISTRATE, II. (J). in the form prescribed by 11 & 12 Vict. o. 43. Regina v. Bake-well, xc. 848 : 7 E. & B. 848. ' Conviction, under" 1 & 2 Wm. 4, c. 32, s. 30, and 11 & 12 Vict. u. 43, s. 32, which makes each liable to imprisonment unless costs of all are paid, is bad Regina v. Cridland, xc. 853 ; 7 K & B. 853. Semble, that jurisdiction ceases when claim of title is bona fide raised. Ibid. On a summary conviction, under 39 & 40 Geo. 3, c. 89, s. 18, the justice has power either to inflict a fine or to imprison with hard labor. Begina v. Willmott ci. 27 ; 1 B. & S. 27. , Giving a certificate, under 9 Geo. 4, c. 31, s. 27, after dismissal of the com- plaint, is a mere ministerial act, and it may be obtained on demand. Hancock v. Somes, cii. 795 ; 1 E. & B. 795. " Forthwith," in 9 Geo. 4, c. 31, s. 27, means forthwith on demand. Costar v. Hetherington, cii. 802 ; 1 E. & E. 802. Innkeeper liable to conviction for playing cards with friends in private room, under 9 Geo. 4, c. 61, s. 21. Patten v. Rhymer, cvii. 1 ; 3 E. & E. 1. Penalty enforceable, under 15 & 16 Vict. c. 81, where one, able -to give evi- dence of value of property liable to rate, refuses. Begina v. Doubleday, cvii. 501 ; 3 E. & E. 501. What evidence sufficient to justify conviction for threat of combination pro- hibited by 6 Geo. 4, c. 125, s. 3. Walsby v. Anley, cvii. 516 ; 3 E. & E. 516. What will constitute a breach of regulations as to safety of mines, under 23 & 24 Vict. c. 151. Howells v. Wynne, cix. 3; 15 C. B. N. S. 3. Where charter master of a pit is cognisant of breach, he is guilty of aiding and abetting or procuring the offence, within 11 & 12 Vict. c. 43, s. 5. Ibid. Where prostitutes are received into a licensed house, the same persons having been there before and acted badly, it is receiving persons of notoriously bad char- acter. Parker v. Green, ex. 299 ; 2 B. & S. 299. As such, it is a violation of a license, under 9 Geo. 4, c. 61, s. 21. Ibid. What is not an incorrect weighing-machine, in proceeding under 5 & 6 Wm. 4, c. 63, s. 28. L. & N. W. Bailway Co. v. Richards, ex. 326 ; 2 B. & S. 326. Churchwarden, whose successor has not been duly qualified, is liable for not signing jury list, according to 6 Geo. 4, c. 50. Bray v. Somer, ex. 374 ; 2 B. & 0. o74. Conviction for trading without a license, when good, under 50 Geo. 3, c. 41. Manson v. Hope, ex. 498 : 2 B. & S. 498. Conviction, under 3 & 4 Vict. c. 61, s. 6 (imposing penalties for producing cer- tificate of good character, knowing it to be false), because the man lived in a state of concubinage, is bad. Leader v. Yell, cxi. 584 ; 16 C. B. N. S. 584. Magistrates are, however, allowed the widest discretion in these cases. Ibid. Mere fact that innkeeper used part of a highway for standing of empty vehi- cles, for twenty years, does not prevent a conviction for obstruction of highway. Gerring v. Barfield, cxi. 597; 16 C. B. N. S. 597. Under 7 & 8 Vict. c. 15, s. 73, premises solely for manufacture of paper not within the act. Coles ». Dickinson, cxi. 604 ; 16 C. B. N. S. 604. This is so where the building is only part of a factory, used solely in the man- ufacture of paper. Ibid. If publican believed and had reason to believe that he was supplying refresh- ment to a traveller, magistrate ought not to convict, under 11 & 12 Vict. c. 49, s. 1. Taylor v. Humphries, cxii. 539 ; 17 C. B. N. S. 539. Traveller, within 1 1 & 12 Vict c. 49, s. 1 , means any one coming out for a legitimate purpose. Ibid. Such person is within the exception of the act prohibiting the sale of liquor during certain hours on Sunday, and penalty is not incurred by entertaining him. Ibid. Aiding and abetting one, under 11 & 12 Vict. c. 43, s. 5, to commit offence, punishable by summary conviction. Am. Note to Taylor v. Humphries, cxii. 552; 17 C. B.N. S. 552. Limits of district where keeping of swine prohibited under 57 Geo. 3, c. 29, s. 68, not affected by 25 & 26 Vict. c. 102, s. 73, transferring powers to local board. Vestry of Chelsea v. King, cxii. 625 ; 17 C. B. N. S. 625. Where there is evidence warranting conviction, under 23 & 24 Vict. c. 27, a. 32, decision of magistrate will be sustained. Belasco v. Hannant, cxiii. 13 ; 3 B. & S. 13. MAGISTEATE, II. (6)— IV. 291 Dismissal by magistrate of information for making fog signals without license, under 23 & 24 Vict. o. 139, improper. Bliss «. Lilley, cxiii. 128 ; 3 B. & S. 128. Conviction for non-compliance with 8 & 9 Vict. c. 29, as to employment of children in print works. Hardcastle v. Jones, cxiii. 153 ; 3 B. & S. 153. Limitations in time of proceeding in summary proceedings for costs and ex- penses in putting down sewer. Jacomb v. Dodgson, cxiii. 461 ; 3 B. & S. 461. To be filed among the records of the Quarter Sessions, under 11 & 12 Vict. c. 43, s. 14, a. summary conviction of justices must be lodged with clerk of the peace. Ex parte Hayward, cxiii. 546. 3 B. & S. 546. Mandamus will not lie to compel the return by the clerk. Ibid. Conviction for placing cattle on highway, under care of servant, as being turned loose, within 2 & 3 Vict. c. 47, s. 54, quashed. Sherborn v. Wells, cxiii. 784; 3B. & S. 784._ Circumstantial evidence admitted to convict person of poaching, under 25 & 26 Vict. c. 114, s. 2. Evans v. Botterill, cxiii. 787 ; 3 B. & S. 787. In charge for assault, where there was contradictory evidence of rape, in addi- tion to evidence of assault, under 24 & 25 Vict. c. 100, s. 42, a conviction for as- sault will be sustained. Wilkinson v. Dutton, cxiii. 821 ; 3 B. & S. 821. Mister, keeper of place of public Tesort, instructing servant in such a way as to violate 2 & 3 Vict. c. 47, s. 44, is liable as principal. Wilson v. Stewart, cxiii. 913; 3 B. &S. 913. Servant is liable as an aider and abetter, within 11 & 12 Vict. c. 43, s. 5. Ibid. What will subject to conviction for performing " stage play" without a license, under 6 & 7 Vict. c. 68. Day v. Simpson, cxiv. 680 ; 18 C. B. N. S. 680. A bona fide use of fishery where defendant is not entitled, will not prevent conviction, under 24 & 25 Vict. c. 96, s. 24. Hudson v. MacRae, cxvi. 585 ; 4 B. & S. 585. When magistrates are interested, a conviction, under 24 & 25 Vict. c. 109, s. 20 (Salmon Fisheries Act), is bad. Regina v. Allan, cxvi. 915 ; 4 B. & S. 915. Telling prosecutor to go on and prove his case, after being asked whether he would plead guilty or required evidence, is a waiver by defendant of the objection that he was not legally in custody under that particular charge. Turner v. Post- master-General, cxvii. 757 ; 5 B. & S. 757. What is a " parish or place," within the Beer Act, 3 & 4 Vict. c. 61, s. 15. Washington ». Scott, cxviii. 617 ; 6 B. & S. 617. III. Proceedings against Magistrate. 11 & 12 Vict. c. 44, does not protect a magistrate, who, without jurisdiction, issues a distress warrant for a poor rate. Pedley v. Davis, c. 492; 10 C. B. N. S. 492. \ / Action does not lie against justices, who, without malice, mistakenly deter- mine a question properly before them. Sommerville v. Mirehouse, ci. 652 ; 1 B. & S. 652. Action lies against a justice who issues a distress warrant, without malice, where validity of rate bona fide disputed and he has no reason to believe the contrary. Pease v. Chaytor, ci. 658 ; 1 B. & S. 658. Justices are not liable in deciding against the bona fides of a dispute of a rate, under 53 Geo. 3, c. 127, s. 7, unless it be shown that they acted without reason- able or probable cause. Pease v. Chaytor, cxiii. 620 ; 3 B. & S. 620. Under 5 Geo. 3, c. 127, s. 7, action against justices ordering the payment of a rate which is bona fide in dispute, must be commenced within three months after fact committed. Ibid. For not vaccinating a child within three months, only one conviction can be had, under 16 & 17 Vict. c. 100, and 24 & 25 Vict. c. 59. Pilcher v. Stafford, cxvi. 775; 4 B. & S. 775. Upon an appeal from a conviction, under 5 Geo. 4, c. 83, s. 4, being quashed, costs may be awarded against the prosecutor, not the justices. Regina v. Pur- dey, cxvii. 909 ; 5 B. & S. 909. IV. Mandamus to Magistrate. Decision by magistrate that a certain street was not a " new street," under 18 & 19 Vict. c. 120, and that therefore he had no jurisdiction, is an exercise of jurisdiction. Regina v. Dayman, xc. 672 ; 7 E. & B. 672. 292 MAGISTKATE, IV. MALICIOUS PROSECUTION. Dismissal of complaint, under 18 & 19 Vict. c. 108, s. 11, on the ground that all the owners were not included, is not an exercise of jurisdiction. Regina v Brown, xc. 757 ; 7 E. & B. 757. Granted directing payment of a coroner's fee, under 7 ¥m. 4 and 1 Vict. c. 78, where justices had decided that the inquest should not have been held, so that question might be discussed. Regina v. Gloucestershire, xc. 805 ; 7 E. & B. 805. Miter, as to fees, under 25 Geo. 2, c. 29. Ibid. Dismissal of an information on the ground of lapse of time, is a hearing. Regina v. Mainwaring, xcvi. 474 ; E., B. & E. 474. Not granted to compel magistrates to order a bridge, under 43 Geo. 3, c. 59, s. 2. Re Newport Bridge, cv. 376 ; 2 E. & E. 376. Does not lie to justices for matters within their discretion. Regina v. Sussex, cxvi. 966 ; 4 B. & S. 966. Where justices dismiss an information on the ground that one of them is in- terested, the remedy is by mandamus or rule. "Wakefield v. W. R. & G. Railway Co., cxviii. 794; 6 B. & S. 794. MALICIOUS ARREST. I. The Arrest. II. Other matters. I. The Arrest. Action lies for malicious arrest on a ca. sa. for an amount more than was due, though plaintiff did not obtain his discharge by an order of courti Gilding v. Eyre, c. 592 ; 10 C. B. N. S. 592. II. Other matters. Declaration alleging that plaintiff was arrested for more than was due, that he was, during detention, willing to pay the smaller amount, and was put to ex- pense, is sufficient. Jenings v. Florence, lxxxix. 467 ; 2 C. B. N. S. 467. Where plaintiff has been discharged from arrest under a ca. sa., on condition that he brings no action, he cannot sue for the arrest. Hay ward v. Duff, civ. 364; 12 C.B.N. S. 364. Railway company may make illegal arrest and be liable to action for. Goff v. G. N. Railway Co., cvii. 672 ; 3 E. & E. 672. Authority of agents must be shown or facts sufficient to justify inference of authority. Ibid. MALICIOUS PROSECUTION. Where there is reasonable and probable cause for the prosecution, question of malice is immaterial. Douglas v. Corbett, Ixxxviii. 511 ; 6 E. & B. 511. In an action for maliciously procuring plaintiff to be held to bail to keep the peace, it is unnecessary to aver that the proceeding terminated in favor of the plaintiff. Steward v. Gromett, xcvii. 191 ; 7 C. B. N. S. 191. Does not lie where a county court judge, partly in consequence of plaintiffs manner, and partly because of perjury by defendant, bound defendant over to prosecute. Fitzjohn v. Mackinder, xcviii. 78 ; 8 C. B. N. S. 78. Reversed in Exchequer Chamber, xcix. 505 ; 9 C. B. N. S. 505. MANDAMUS, I. (a.) 293 MANDAMUS. I. When granted generally. (d) Mandamus in other cases, (a) Mandamus to corporations, II. Return to Mandamus. 81 companies and public offi- III. Peremptory Mandamus. cers. IV. Costs. Mandamus to inferior courts. V. Other matters relating to. Mandamus to magistrates. I. When granted, generally. Title of a man bona fide in office not to be tried by mandamus. Frost v. Mayor of Chester, lxxxv. 531 ; 5 E. & B. 531. Common Law Procedure Act does not give mandamus for enforcement of a contract. Benson v. Paull, lxxxviii. 273 ; 6 E. & B. 273. Semble, that a mandamus to compel a party to institute legal proceedings does not lie. Regina v. Southampton, ci. 5 ; IB. & S. 5. But a direction to take necessary and legal measures to recover, does not neces- sarily mean to institute legal proceedings. Ibid. Reversed in Exchequer Chamber, on another ground, cxviii. 325 ; 6 B. &. S. 325. Does not lie to compel the Lords Commissioners of the Treasury to pay a debt incurred by the county court. Ex parte Walmsley, ci. 81 ; 1 B. & S. 81. There ought to appear on the face of the writ a present duty to perform, and the non-performance of that duty. Regina v. Vestry of St. Lukes, ci. 903 ; 1 B. & S. 903. Does not lie to compel performance of a duty conditional on obtaining ap- proval. Ibid. Refused to compel an individual to reinstate a public bridge which he was by statute bound to repair, though the agreement in the case stated is that the man- damus may issue. Nicholl v. Allen, ci. 916; 1 B. & S. 916. The granting writ of mandamus is within the sound discretion of the court. Regina v. General Council, cvii. 525 ; 3 E. & E. 525. Although, under Common Law Procedure Act 1854, the issuing [a mandamus to levy a rate is discretionary, court will grant it where the right is clear. Ring- land v. Lowndes, cix. 173 ; 15 C. B. N. S. 173. Mandamus, under 17 & 18 Vict. c. 125, s. 68 (Common Law Procedure Act), will not issue to enforce payment of judgment. Burland v. Local Board of Health, cxiii. 271 ; 3 B. & S. 271. A mandamus will not issue to restore physician to register, stricken from it, under 21 & 22 Vict. c. 90, s. 29. Ex parte La Mert, cxvi. 582 ; 4 B. & S. 582. (a) Mandamus to corporations, companies and public officers. Not granted to compel registration of a deed transferring shares not in the statutory form and containing other matters. Regina v. General Cemetery Co., lxxxviii. 415 ; 6 E. & B. 415. Not granted to compel commissioner of insolvent debtors' court to pay over surplus of debtor's estate to his alleged assigns. Regina v. Law, xc. 366 ; 7 E. & B. 366. Granted to compel overseers of the poor to deliver rate books to the collector of poor rate. Regina v. OWseers of Christ Church, xc. 409 ; 7 E. & B. 409. Granted directing the mayor and assessors of a borough to revise the burgess lists after the expiration of the time fixed by Municipal Corporation Reform Act, 5 & 6 Wm. 4. c. 76. Regina v. Mayor of Rochester, xc. 910 ; 7 E. & B. 910. Affirmed in Exchequer Chamber, xcvi. 1024 ; E„ B. & E. 1024. Though the mayor who made default no longer in office. Ibid. Under Common Law Procedure Act to compel a company incorporated by charter to insert in the register the names of proprietors of shares. Norris v. Irish Land Co., xcii. 512 ; 8 E. & B. 512. Does not lie to compel parish officers to receive pauper on an order of removal. Ex parte Overseers of Downton, xcii. 856 ; 8 E. & B. 856. Where local board of health consented to a judgment with stay of execution, a mandamus to compel them to levy a rate may issue within six months from 294 MANDAMUS, I. (a), (b), (c). expiration of the stay. Regina v. Rotherham Local Board, xcii. 906 ; 8 E. & B. 906. To the visitors of the College of Doctors' Commons, requiring them to inquire as to the disposition of the property refused. Ex parte Lee, xcvi. 863 ; E., B. & E. 863. Lies to the archbishop to compel him to give an appellant under sect. 98 of 1 & 2 Vict., c. 106, a hearing. Regina v. Archbishop of Canterbury, cii. 545 ; 1 E. & E. 545. Not granted to compel the overseers to pay an advanced borough rate, there being a remedy by distress. Regina v. Iiunslett, cii. 775 ; 1 E. & E. 775. A mandamus will lie to compel a railway company to retransfer shares, where transferee has no better title than person in whose name they stood. Ward v. S. E. Railway Co., cv. 812 ; 2 E. & E. 812. When not granted to restore assistant of a Saddler's Company. Regina v. Saddlers' Co., cxvi. 570 ; 4 B. & S. 570. The prosecutor in this case having been voluntarily restored b'efore the issuing of the writ, it was unnecessary. Ibid. Peremptory mandamus granted to restore officer illegally ousted from office under by-law of society. Regina v. Saddlers' Co., cxvi. 1059 ; 4 B. & S. 1059. Does not lie to compel compensation, under 21 & 22 Vict. c. 98, by a local board, for injuriously affecting a watercourse, without consent. Regina v. Dar- lington, cxvii. 515 ; 5 B. & S. 515. Affirmed in Ex. Ch., cxviii. 562 ; 6 B. & S. 562. Not granted to compel Commissioners of Police to issue a license to the con- ductor of a stage carriage, who had been three times convicted and fined. Ex parte Mitcham, cxvii. 585 ; 5 B. & S. 585. Does not lie to compel registrar to certify rules of a Friendly Society, adopted at a meeting called by the officers at a different place from that fixed by existing rules. Regina v. Tidd Pratt, cxviii. 672 ; 6 B. & S. 672. Under 11 & 12 Vict. c. 63, s. 89, a mandamus may issue to compel the Local Board to levy a rate in aid of a judgment, within six months after it has been ob- tained, though the action was commenced more than six months after the cause accrued, if the delay was not undue. Worthington v. Hulton, cxviii. 943 ; 6 B. & S. 943. (6) Mandamus to inferior courts. Mandamus not granted to compel Insolvent Debtors' Court to make an order vesting surplus in assignee of insolvent. Ex parte Cook, in re Dyson, cv. 586 ; 2 E. & E. 586. Mandamus will not be granted for examination of witnesses in colonies when it can be done by a commission. Farnworth v. Hyde, cviii. 719 ; 14 C. B. N. S. 719. (c) Mandamus to magistrates. Decision by magistrate that a certain street was not a " new 3treet," under 18 & 19 Vict. c. 120, and that therefore he had no jurisdiction, is an exercise of jurisdiction. Regina v. Dayman, xc. 672; 7 E. &B. 672. Dismissal of complaint, under 18 & 19 Vict. c. 108, s. 11, on the ground that all the owners were not included, is not an exercise of jurisdiction. Regina v. Brown, xc. 757 ; 7 E. & B. 757. Granted directing payment of coroner's fee, unde^r 7 Wm. 4 & 1 Vict. c. 68, where justices had decided that the inquest should not have been held, so that question might be discussed. Regina v. Gloucestershire, xc. 805 ; 7 E. & B. 805. Aliter, as to fees, under 25 Geo. 2, c. 29. Ibid. Dismissal of an information on the ground of lapse of time, is a hearing. Regina v. Mainwaring, xcvi. 474 ; E., B. & E. 474. Not granted to compel magistrates to order a bridge, under 43 Geo. 3, c. 59, s. 2. Re Newport Bridge, cv. 377 ; 2 E. & E. 377. Mandamus does not lie to justices as to matters within their discretion. Re- gina v. Sussex, cxvi. 966 ; 4 B. & S. 966. Where justices dismiss an information on the ground that one of them is in- terested the remedy is by mandamus or rule. Wakefield v. W. R. & G. Railway Co, cxviii. 794; 6 B. & S. 794. MANDAMUS, I. (d)— V. MANOR. 295 (d) Mandamus in other casks. Rule for mandamus to examine 'witnesses may be moved pending issues at law. Kelsall v. Marshall, lxxxvii. 266 ; 1 C. B. N. S. 266. To compel local authority to enforce an order abating a nuisance, refused. Ex parte Bassett, xc. 280 ; 7 B. & B. 280. An applicant for a mandamus to allow him to inspect parish accounts must show tangible public ground. Ex parte Briggs, cii. 881 ; 1 E. & E. 881. A mandamus will not be granted to compel a bishop to issue a commission, under 3 & 4 Vict. c. 86, s. 3, upon the application of one who is a stranger to the parish and diocese, and has no personal interest in charges made by him. Regina v. Chichester, cv. 209 ; 2 E. & E. 209. Under 11 & 12 Vict- c. 43, s. 14, not granted to compel clerk of the peace to return record of summary convictions in order that they might be filed in Quar- ter Sessions. Ex parte Hayward, cxiii. 546 ; 3 B. & S. 546. II. Beturn to Mandamus. The mandatory part may be general, but the return must be minute. Regina v. Southampton, ci. 5 ; 1 B. & 8. 5. Reversed in Exchequer Chamber on another ground, cxviii. 325 ; 6 B. & S. 325. A mandamus will not issue to levy a rate to pay a judgment not a charge, within 11 & 12 Vict. c. 63, s. 89. Burland v. Local Board of Health, cxiii. 271 ; 3 B. & S. 271. III. Peremptory Mandamus. When a peremptory mandamus to restore officer will not be granted. Begina v. Saddlers' Co., cxvi. 570; 4 B. & S. 570. Where defendants voluntarily do what they ought to do under a peremptory mandamus, it will not issue against them. Ibid. IV. Costs. On the prolongation of litigation, by appeal to the House of Lords, on a man- damus to a corporation, in - which security was required to be given for costs, the amount may be increased. Regina v. Southampton, cxviii. 407 ; 6 B. & S. 407. V. Other matters relating to. Begula generalis, as to mandamus to justices to enter continuances and hear appeals, xcvi. 253 ; E., B. & E. 253. Under the Common Law Procedure Act of 1854, the plaintiff may allege, the amount of the debt generally, leaving it for jury to find precise amount for which mandamus to issue. Ward v. Lowndes, cii. 940 ; 1 E. & E. 940. The Statute of Limitations is no answer to a count claiming a mandamus under Common Law Procedure Act of 1854. Ibid. MANOR. On a question whether a piece of waste land along a highway belonged to the lord of the manor, proof of the grant by the lord of other, not continuous, pieces along same road, is admissible. Dendy v. Simpson, lxxxvi. 831 ; 18 C. B. 831. 296 MARKET. MARRIAGE, I.— III. MARKET. The sale in public market, ■which exempts a party from penalties under the Hawkers' Act, 50 Geo. 3, c. 41, requires a legal market, and not one merely de facto. Benjamin v. Andrews, xciv. 299 ; 5 0. B. N. S. 299. A vessel moored to a wharf, on an old canal, is not a "shop,'' within 21 & 22 Vict. c. 105. Wiltshire v. Baker, ciii. 237 ; 11 C. B. N. S. 237. A "shop," under 21 & 22 Vict. c. 105, need not be attached to dwelling-house of party selling. Wiltshire v. Willett, ciii. 240; 11 C. B. N. S. 240. A sale by auction in such " shop" is privileged. Ibid. A person selling fruit and fish from door to door, is not within the prohibition of 10 & 11 Vict. c. 14, where tolls are not authorized by the special act for sell- ing said articles. Caswell v. Cook, ciii. 637 ; 11 C. B. N. S. 637. Owners of houses may have, by immemorial enjoyment, right to erect stalls in front of their houses, without tolls, on market days. Ellis v. Mayor of Bridg- north, cix. 52 ; 15 C. B. N. S. 52. And the removal of market to another place would be an unlawful disturbance of the right. Ibid. Held, that neither 11 & 12 Vict. c. 63, nor 21 and 22 Vict. c. 98, justified the removal of a market, where it would interfere with private rights, for the erec- tion of stalls. Ibid. Reasonableness of by-law regulating market, under 16 & 17 Vict. c. 24. Savage v. Brook, cix. 264; 15 C. B. N S. 264. What is a "shop," within the Markets and Fairs Clauses Act, 10 & 11 Vict. c. 14, s. 13. Pope v. Whalley, cxviii. 303 ; 6 B. & S. 303. MARRIAGE. I. II. III. Generally. Sufficiency Action for Marriage IV. of Marriage. V. breach of promise of VI. I. GENERALLY. Separation Divorce. Dower. agreements, The marriage of a man with the daughter of his deceased wife's illegitimate half-sister, is void. Regina v. Brighton, ci. 447 ; 1 B. & S. 447. An order for conveyance of property to a married woman, under 3 & 4 Wm. 4, c. 74, s. 91, will only be made with reference to a contemplated purchase. In re Mary Graham, cxv. 370 ; 19 C. B. N. S. 370. Order for conveyance by married woman separated from her husband, under 3 & 4. Wm. 4, c. 74, s. 91. Ex parte Susannah Andrews, cxv. 371 ; 19 C. B. N. S. 371. II. SUFFICIENCY OF MARRIAGE. If a Roman Catholic marriage has been duly solemnized in other respects, it will be presumed that the place was duly licensed, under 6 & 7 Wm. 4, c. 85, and registrar present. Sichel v. Lambert, cix. 781 ; 15 C. B. N. S. 781. III. Action for breach op promise of Marriage. New trial not granted because of excessive damages, unless jury mistaken or prejudiced. Smith v. Woodfine, lxxxvii. 660 ; 1C.B. N. S. 660. Affidavit of defendant cannot be used to explain evidence. Ibid. That after promise and before breach defendant became afflicted with a disease, making him incapable of marriage without danger to life, and therefore" unfit for the marriage state, is no defence. Hall v. Wright, xcvi. 746 ; E., B. & E. 746. That at the time of the promise plaintiff was engaged to another person, which fact she did not disclose, and of which defendant was ignorant, is no defence. Beachey v. Brown, xcvi. 796 ; E., B. & E. 796. MARRIAGE, III.— VI. MASTER AND SERVANT, I. 297 Prior temporary insanity of plaintiff, no defence. Baker v. Cartwright, e. 124 ; 10 C. B. N. S. 124. IV. Separation agreements. Provision to pay wife a certain sum weekly during her life, the deed to be void if they should, in writing, agree to cohabit, and do cohabit, is not avoided by cohabitation. Randle v. Gould, xcii. 457 ; 8 E. & B. 457. An agreement for separate maintenance of wife which recites, her adultery, is not avoided by a decree of dissolution of marriage obtained on ground of such adultery. Goslin v. Clark, civ. 681 ; 12 C. B. N. S. 681. V. Divorce. Wife may pledge her husband's credit for expenses of divorce a mensa el thoro, where reasonable grounds for the application. Brown v. Ackroyd, lxxxv. 819 ; 5 B. & B. 819. Pushing her out of the room, and threatening to put her in a lunatic asylum, not reasonable grounds. Ibid. A protection order, under sect. 21 of 20 & 21 Vict. c. 85, obtained pending an action, will not authorize the action, if not maintainable at its commencement. Midland Railway Co. v. Pye, c. 179 ; 10 C. B. N. S. 179. The court refused to expunge the registration of a decree for alimony, under the divorce act. Ex parte Holden, cvi. 641 ; 13 C. B. N. S. 641. After divorce, husband not liable for costs of wife during coverture. Capel v. Powell, cxii. 743 ; 17 C. B. N. S. 743. VI. Dower. Demandant in dower not entitled to inspection of deeds, under Common Law Procedure Act, as against a bona fide purchaser for value without notice of the marriage. Gomm «. Parrott, xci. 47 ; 13 C. B. N. S. 47. Adultery without reconciliation is a bar to dower, under Westminster 2, c. 34, though the wife left her husband because of cruelty. Woodward v. Dowse, c. 722 ; 10 C. B. N. S. 722. MASTER AND SERVANT. I. Liability of Master for contracts of towages. Servant. (6) Ground for dismissal of Ser- II. Liability of Master for torts of Ser- vant. vant. (c) Who is a Servant. (a) Generally. IV. Liability of Master for injuries to (6) Servant must be acting with- Servant. in general scope of his duty. V. Of the action of seduction, (c) How far relation of Master VI. The relation of Master and ap- and Servant must exist. prentice. III. Of the contract of hiring. VII. Other matters, (a) Of the right of the Servant I. Liability op Master for contracts of Servant. Registered proprietor of cab, who hires it by the day, for a certain sum, to a licensed driver, the license being deposited with him, is liable for the driver's contracts. Powles v. Hider, lxxxviii. 207 ; 6 E. & B 207. Where a servant contracts individually to do work which master afterwards adopts, and is paid for, the latter is responsible for negligence. Holmes v. Onion, Ixxxix. 790 ; 2 0. B. N. S. 790. Authority by a private owner to his servant to sell and deliver a horse, does not imply a right to warrant. Brady v. Todd, xcix. 592 ; 9 C. B. N. S. 592. A servant is not an agent, within 6 Geo. 4, c. 94, and 5 & 6 Vict. c. 39. Lamb v. Adenborough, ci. 831 ; 1 B. & S. 831. 298 MASTER AND SERVANT, II. (a), (6), (e), III. II. Liability of Master for torts of Servant. (a) Generally. Master responsible for injury caused by reckless driving of servant when on an errand for him in a manner impliedly authorized, though also on an errand for himself. Patten v. Rea, Ixxxix. 606 ; 2 C. B. N. S. 606. Master not liable for the wilful act of his servant contrary to his orders. Green v. Macnamara, xcviii. 880 ; 8 C. B. N. S. 880. One who volunteers to assist a servant, and is injured through negligence of another servant, cannot recover from master. Potter v. Faulkner, ci. 800 ; 1 B. & S. 800. When master is acting gratuitously in the execution of a public duty for the benefit of the public, he is not responsible for negligence of servant employed by him to do the work. Holliday v. St. Leonards, ciii. 192; 11 C. B. N. S. 192. Contractor liable for negligence of workman in not employing precautions in working on highway. Cleveland v. Spier, cxi. 399 ; 16 C. B. N. S. 399. Question discussed: per Erie, C. J. Tobin v. The Queen, cxi. 310; 16 C. B. N. S. 310. Queen not liable for tortious act of captain in navy. Ibid. Metropolitan Board of Works acting within scope of authority, but irregularly, placing works on bed of Thames under various statutes, is liable for damage caused by a pile negligently placed on foreshore by contractor. Brownlow v. Board of Works, cxi. 546 ; 16 C. B. N. S. 546. Affirming s. c. in C. P., cvi. 768 ; 13 C. B. N. S. 768. Without negligence on the part of the employer, he is not liable to an employee for the negligence of a co-employee. Lovegrove v. L. B., &c, Railway Co. ; Gallagher v. Piper, cxi. 669 ; 16 C. B. N. S. 669. The mere fact that powers are large will not prevent a person being considered as an employee. Ibid. Doctrine discussed in Am. Editor's note. Ibid. Drainage commissioners, acting as trustees for a public purpose without reward, are not liable for damages resulting from the negligence or want of skill of then- servants. Coe v. Wise, cxvii. 440 ; 5 B, & S. 440. A person, on whom is imposed a statutory obligation, is liable for injuries caused by the negligent performance of it by a contractor employed by him. Gray v. Pullen, cxvii. 970 ; 5 B. & S. 970. (b) Servant must be acting within the general scope of his duty. Railway company liable for negligence of employee in management of train at railway crossing. Manchester S. J. Railway Co. v. Fullarton, cviii. 54; 14 C. B. N. S. 54. (c) How par relation op Master and Servant must exist. The owner of a boat, employing the crew, is liable to a passenger for injuries caused by negligence of the crew, though the boat and the crew are for the time hired by a third person, with whom the passenger bargained, and to whom he paid his fare. Dalyell v. Tyrer, xcvi. 899 ; E., B. & E. 899. To render a master liable to a servant for the negligence of a fellow-servant, it must be shown that he was in the position of a vice-principal. Murphy v. Smith, cxv. 361 ; 19 C.'B. N. S. 361. III. Of the contract of hiring. Where there was a written contract for a year, with a provision that at the end of the year the employer would, if satisfied, add to the salary, held, that the pro- viso did not exclude a custom to dismiss on a month's notice. Parker v. Ibbet- son, xciii. 346 ; 4 0. B. N. S. 346. The effect of the proviso on the custom is for the court. Ibid. Agreement that in the event of defendant's travelling for any other house, over any part of the same ground, he will forfeit 50Z., is broken by so travelling after he has left plaintiff's employ. Mumford v. Gething, xcvii. 305; 7 C. B. N. S 305. A contract to be binding for twelve months certain, and to continue from time MASTER AND SERVANT, III. (a), (6), (c), IV. 299 to time until three months' notice be given, may be determined at the end of the first year by notice. Brown v. Symons, xcviii. 208 ; 8 C. B. N. S. 208. That a servant is permitted to use a master's premises for a business of his own, in addition to performing his duties there, does not make him a tenant. White v. Bayley, c. 227 ; 10 C. B. N. S. 227. A contract that the workman should serve the employer, who was to pay him fortnightly and give him twenty-eight days' notice of discharge, is not bad for want of mutuality. Whittle v. Frankland, ex. 49 ; 2 B. & S. 49. In such case there is an implied obligation on the master to furnish work. Ibid. Agreement of workman for certain rate of wages with certain fixed deduction, •not within 1 & 2 Wm. 4, c. 37 (Truck Act), and therefore valid ; Keating, Wil- liams and Willes, dissenting. Archer »'. James, ex. 61 ; 2 B. & S. 61. A huntsman is a menial servant and -contract of hiring for year is subject to be terminated by month's notice or month's wages. Nicoll v. Greaves, cxii. 27 ; 17 C. B. N. S. 27. (a) Of the right of Servant to wages. On a contract for service for a term in consideration of a sum at its expiration, a weekly sum and house and coals during term, the weekly sum may be recovered during a time of temporary illness. Cuckson v. Stones, cii. 248 ; 1 B. & E. 248. Master cann t be sued for wages before justices, when county court has already decided that dismissal of servant was lawful and proper. Routledge v. Hislop, cv. 549 ; 2 E.& B. 549. Magistrate has power under 20 Geo. 2, c. 19, s. 1, to enforce right of artificer and other laborer to wages, even where contract is for no specified time. Taylor v. Carr, ex. 335 ; 2 B. & S. 335. A parliamentary reporter hired by the week is only entitled to wages up to expiration of actual service. Courtenay v. Wagstaff, cxi. 110 ; 16 C. B. N. S. 110. Under 20 Geo. 1, c. 19, s. 1, justices may deduct from wages of artificer where work has not been well done. Sharp v. Hainsworth, cxiii. 139 ; 3 B. & S. 139. (6) Groitnd for dismissal of Servant. When a skilled laborer, artisan or artist is employed, there is an implied warranty of reasonable competence, and incompetence is a ground of dismissal. Harmer v. Cornelius, xciv. 236; 1 C. B. N. S. 236. (c) Who is a Servant. The keeper of Guildhall, living in a house erected for the hall keeper, and in which he is required to reside, occupies as servant and not as tenant. Clark v. Bury St. Edmunds, lxxxvii. 23 ; 1 C. B. N. S. 23. IV. Liability of Master for injuries to Servant. Owner of factory who failed to fence in shaft, as required by 7 & 8 Vict. c. 15, not liable for injuries to employee, who wilfully set it. in motion. Caswell v. Worth, Ixxxv. 849; 5 B. & B. 849. Owner not fencing in shaft, under 7 & 8 Vict. c. 15, liable for injuries, though machinery put where not dangerous. Doel v. Sheppard, lxxxv. 856 ; 5 E. & B. 856. Master does not warrant competency of fellow servant, and is only responsible for negligence in selection. Tarrant v. Webb, lxxxvi. 797 ; 18 C. B. 797. For injuries to the servant, the master is not liable, unless personally negli- gent. Ormond v. Holland, xcvi. 102 ; E., B. & E. 102. The doctrine, that a servant takes the risk of his employment, does not apply where the master has been negligent. Mellors v. Shaw, c'i. 437 : 1 B. & S. 437. Master not liable for injury to servant caused by habitual negligence of fellow- servants, though known to master, if there be contributory negligence. Senior v. Ward, cii. 385 ; 1 E. & E. 385. Master is not responsible for injury to a servant, through negligence of a fellow- servant who is a competent workman. Searle v. Lindsav, ciii. 429 ; 11 C. B. N. S. 429. Master liable to servant for negligence committed while working with him. Ashworth v. Stanwix, cvii. 702; 3 E. & E. 701. 300 MASTER AND SERVANT, IV.— VII. MAXIMS. In such case doctrine of negligence of fellow -servant does not apply. Ibid. And when there is partnership co-partners also liable. Ibid. A master cannot recover for injury to his servant riding as a passenger upon a railroad with a ticket purchased from the company. Alton v. Midland Rail- way Co. cxv. 213 ; 19 C. B. N. S. 213. The relation between the servant and the company is founded on contract. Ibid. A carpenter employed by a railway company cannot recover against it for injuries caused by the negligence of the porters of the company in shifting a locomotive. Morgan v. Vale of Neath Railway Co., cxvii. 570; 5 B. & S. 570. Affirmed in Exchequer Chamber. Ibid. 736. V. Of the action of seduction. A father whose daughter rents a house and carries on business, helping to sup- port the mother and part of the family who live with her, cannot maintain the action. Manly v. Field, xcvii. 96 ; 7 C. B. N. S. 96. VI. The eelation of Master and Apprentice. Action for enticing away an apprentice does not lie if the contract of appren- ticeship be void. Cox v. Muncey, xcv. 375 ; 6 C. B. N. S. 375. VII. Other matters. Bailiff or superintendent not a servant of husbandry within 4 Geo. 4, c. 34, s. 3. Davies v. Lord Berwick, cvii. 549 ; 3 E. & B. 549. There must also be a duty to act on the part of the servant when required. Ibid. Otherwise the person not criminally liable. Ibid. Master liable criminally for instructing servant to violate 2 & 3 Yict. c. 47, s. 44. Wilson v. Stewart, cxiii. 913 ; 3 B. & S. 913. MAXIMS. That no one shall be permitted to take advantage of his own wrong discussed. Hooper v. Lane, xcii. 1095 ; 8 E. & B. 1095. . Interpretatio fienda est, ut res magis valeat quam pereat. Pugh v. Stringfield, xciii. 364; 4 C. B. N. S. 364. jaiepWyidiiisdir solo, solo cedit. Lancaster v. Eve, xciv. 717 ; 5 C. B. J\. S 717 Omnia rite acta esse prmsumunlur. Fitzgerald v. Dressier, xciv. 885 ; 5 C. B. N. S. 885. Prohibetur ne quis facial in suo quod nocere possit alieno. Bonomi v. Back- house, xcvi. 622 ; E., B. & E. 622. Sic utere tuo ut alienum non Icedas. Ibid. _ Delegata potestas non potest delegari. Hemming v. Hale, xcvii. 487 ; 7 C. B. N. S. 487. „ _ Tacite in esse videniur qua; sunt moris et consuetudinis. Suse v. Fompe, xcviii. 538; 8 C. B. N. S. 538. De minimis non curat lex. Morton v. Brammer, xcviii. 791 ; 8 C. 15. JN. o. 791. ifnum quodque dissolvitur eodem ligamine quo ligatur. Nash v. Armstrong, c. 258 ; 10 C. B. N. S. 258. ' Lex neminem cogit ad vana seu inutiliaper agenda. Bell v. Midland Railway Co., c. 287 ; 10 C. B. N. S. 287. im ,„„„„, Sic utere tuo ut alienum non Icedas. Pickard v. Smith, c. 470 ; 10 O. JS. JN. »• 470. Quod fieri non debet factum valet. Cook v. Wright, ci. 559 ; 1 B. AS. 559. Nova cnnstitutio futuris formam imponere debet, non pr arteritis. Wright v. Greenroyd, ci. 757 ; 1 B. & S. 757. MAXIMS. MEEGER. MINES. 301 Verba fortius accipiuntur contra proferentem. Braunstein v. Accidental Death Ins. Co., ci. 782 ; 1 B. & S. 782. Qui statuit aliquid, parte, inaudita altera, ce.qy.um licet statuerit, cequus haud fait. Regina v. Archbishop of Canterbury, cii. 545 ; 1 E. & E. 545. Qui hceret in litera hosret in cortice. Regina v. Gee, cii. 1068 ; 1 E. & E. 1068. Omnia rite esse acta prastimuntur. Cheney v. Courtois, cvi. 634 ; 13 C. B. N. S. 634. Benignce faciendce sunt inlerpretationes propter simplicitatem laicorum ut res magis valeat quam per eat. Ibid. MERGER. Devise to A. for life, remainder to her children, and in default of issue, to B. in fee, all the residue of the estate to A. A., after death of testatrix, conveyed to C. and died without issue, held, this conveyance merged the life estate in the reversion and destroyed the contingent remainder in B. Egerton v. Massey, xci. 338 ; 3 C. B. N. S. 338. Where three are liable on simple contract and two execute a mortgage for the debt, there is no merger. Sharpe v. Gibbs, cxi. 527 ; 16 C. B. N. S. 527. The security of a higher nature must be co-extensive as to the remedy to pro- duce that effect. Ibid. Unless a simple contract debt and specialty are co-extensive the former will not be merged in the latter. Boaler v. Mayor, cxv. 76 ; 19 C. B. N. S. 76. Doctrine of merger discussed in Am. Ed. notes. Ibid. MINES. Supports for the surface must be left, unless provision to the contrary in the deed. Smart v. Morton, lzxxv. 30 ; 5 E. & B. 30. The shares in a mine worked on the cost-book principle, not interest in land within Statute of Frauds. Powell v. Jessopp, lxxxvi. 336 ; 18 C. B. 336. Transferee of shares in cost-book mine, the rules of which require transfers to be registered, not liable for debts contracted before registration. Thomas v. Clark, lxxxvi. 662 ; 18 C. B. 662. Where A. accepted transfer from B., to take effect upon an event which did not happen, and B. registered the transfer without authority, A. not liable for debts. Ibid. The rule that an allottee of shares is entitled to recover.back deposit, on fail- ure of directors to carry out the scheme, extends to cost-book mine. Johnson v. Goslett, lxxxvi. 728; 18 C. B. 728. All seven directors liable, though account kept at bankers in the names of five only. Ibid. Where plaintiff sold defendant shares in cost-book mine, and executed transfer in blank, held that defendant was not bound to register the shares in his own name, but was bound to indemnify plaintiff .against calls during his ownership. Walker v. Bartlett, lxxxvi. 845 ; 18 C. B. 845. Transfer need not be stamped. Ibid. Shares not an interest in land within Statute of Frauds. Ibid. No right of suppprt to the surface, where both parties claim through an award under an act which severed the surface from the minerals and provided against such a right. Rowbotham v. Wilson, Ixxxviii. 593 ; 6 E & B. 593. Though he, through whom owner of minerals claims, received allotment under, but did not execute award. Ibid. Though the houses injured had stood more than twenty years. Ibid. S02 MINES. Affirmed in Exchequer Chamber, xoii. 123 ; 8 E. & B. 123. '" Butty colliers," who work mines by the yard, employing others and laboring themselves, are artificers, within Truck Act, 1 & 2 Wm. 4, c. 37. Bowers v. Love- kin, lxxxviii. 584 ; 6 E. & B. 584. Where an enclosure act to allot waste lands enabled the lord of the manor to come on them and mine coal, and provided that he should not open any mine within forty yards of a house, or get any coal within forty yards of the founda- tion, he was held liable for injuries caused by working beyond that distance. Roberts v. Haines, lxxxviii. 643 ; 6 E. & B. 643. Affirmed in Exchequer Chamber, xc. 625 ; 7 E. & B. 625. Rule that shareholder may recover from the directors the price of his shares, if all the shares not subscribed for, applies to a cost-book mine. Johnson v. Goslett, xci. 569 ; 3 C. B. N. S. 569. One whose name appears as a director on the prospectus and in the rules, lia- < ble, though the money deposited only in the names of others. Ibid. Shareholders in a cost-book mine cannot agree that unpaid calls shall be reco- vered as a debt due the purser. Hybart v. Parker, xciii. 209 ; 4 C. B. N. S. 209. Qucere, whether a cost-book mining company is a public company, within 1 & 2 Vict. c. 110, s. 14. Nicholls w. Rosewarne, xcv. 480 ; 6 C. B. N. S. 480. Qucere, whether one whose vendee has paid and accepted the transfer for shares without registering, holds shares in his own right, within that act. Ibid. The court confirmed an order made under this statute, on the ground that otherwise there would be no appeal. Ibid. For injuries caused to the surface, by careless working of a mine under an adjacent property, the right of action arises at the time of the injury, not of the working. Bonomi v. Backhouse, xcvi. 622 ; E., B. & E. 622. Affirmed in House of Lords, ci. 970 ; 1 B. & S. 970. Agreement by lessee to work the whole of certain mines except the ribs or pillars, which must necessarily, or which the lessors might require to be left, contains no covenant as to the ribs, or one so unreasonable as not to be enforce- able. Swindell v. Birmingham Canal Co., xcix. 241 ; 9 C. B. N. S. 241. Prescription to work mines without leaving support to the lands, and without compensation for injury, is unreasonable and bad. Blackett v. Bradley, ci. 940 ; 1 B. & S. 940. A mine is being worked on Sunday, under 18 & 19 Vict. c. 108, though no work is done on that day, if being used at time for mining purposes. Knowles v. Dickinson, cv. 705 ; 2 E. & E. 705. Prima facie the owner of land is entitled to the surface and all below it. Row- botham v. Wilson, cvii. (H. of L.) 752; 3 E. & E. 752. Any one derogating from such right must show grant or conveyance. Ibid. When right to mine is given, power to get the coal is included. Ibid. How far right of support taken away when there is a grant of minerals. Ibid. What constitutes breach of regulations as to safety of mines, under 23 & 24 Vict. c. 151. Howells v. Wynne, cix. 3 ; 15 C. B. N. S. 3. Where master of pit cognisant of breach, he is liable as aiding, abetting, &c, the offence, under 11 & 12 Vict. c. 43, s. 5. Ibid. Adjoining owner not liable for water flowing by gravitation into neighbor's mine, when he has exercised due skill. Baird v. Williamson, cix. 376 ; 15 C. B. N. S. 376. Contra, where he has interfered with the flow of the water. Ibid. Manner in which, under Railway Clauses Consolidation Act, ss. 77, 78, 79, owner of mines entitled to work them under land taken by railway company ; and compensation allowed. G. W. Railway Co. v. Bennett, ex. 868 ; 2 B. & S. 868. Mine owners, when not entitled to protection of 8 & 9 Vict. c. 20, ss. 68, 69. Regina v. Fisher, cxiii. 191 ; 3 B. & S. 191. Owner of minerals with right to sink shaft, must fence in latter. Williams c. Groucott, cxvi. 149 ; 4 B. & S. 149. Liability to owner of surface for neglect to do so. Ibid. Owner of surface can recover for cattle injured by neglect to build proper fence. Ibid. MISTAKE. MONEY HAD AND RECEIVED. 303 MISTAKE. A term was underlet to secure annuities and afterward, subject to them, as- signed to plaintiff, who continued by mistake after the death of the survivor of the annuitants to pay rent to his representatives, held, it could be recovered back as money had and received, less sums paid for ground-rent, rates and taxes. Barber v. Brown,_lxxxvii. 121 ; 1 C. B. N. S. 121. Revival of life insurance after the expiration of the thirty days allowed for renewal implies that the insured is then alive. Pritchard v. Life Assurance Society, xci. 622; 3 C. B. N. S. 622. Money paid under a mistake of fact may be recovered back, though plaintiff had means of knowledge at the time. Townsend v. Crowdy, xcviii. 477 ; 8 C. B. N. S.477. When money paid under mistake of fact, can be recovered back. Shand v. Grant, cix. 324 ; 15 C. B. N. S. 324. What constitutes a mistake of fact. Ibid. MONET HAD AND EECEIVED. Count for money had and received, plea, tender of certain sum, replication, that demand was an entire contract for a larger amount than the tender, and re- joinder, set off reducing amount to tender, held, rejoinder bad. Searles v. Sad- grave, lxxxv. 639 ; 5 B. & B. 639. Lies for illegal fines and fees paid by tenant of copyhold estate to steward under protest. Traherne v. Gardner, lxxxv. 913 ; 5 B. & B. 913. Lies where money of plaintiff was sent to A. for specific purpose, and the de- fendant, knowing it to be plaintiff's, borrowed it from A., and applied it to pay- ment of his claim against A. Litt v. Martindale, Ixxxvi. 314 ; 18 C. B. 314. A term was underlet to secure annuities and afterward, subject to them, as- signed to plaintiff, who continued, by mistake, after the death of the survivor of the annuitants, to pay rent to his representatives, held it could be recovered back as money had and received, less sums paid for ground-rent, rates and taxes. Barber v. Brown, lxxxvii. 121 ; 1 C. B. N. S. 121. Lies for conduct-money paid to a witness, when case settled and no expense incurred. Martin v. Andrews, xc. 1 ; 7 E. & B. 1. Under plea of nunquam indebitatus it cannot be shown that the sum had been taxed as costs if never paid. Ibid. A bank having separate branches in different places, one of which paid a check on a balance in the other withdrawn before, without laches, the check could be sent, may recover from payee. Woodland v. Fear, xc. 519 ; 7 E. & B. 519. Lies against an executor personally, after stating an account with the legatee which included a personal item. Topham v. Morecraft, xcii. 972 ; 8 E. & B. 972. Where the purchaser of shares,, with full knowledge that the completion of the transfer has been prevented by the stoppage of the bank, pays his broker who, under decision of the board, has paid seller's broker, action does not lie against the seller. Remfry v. Butler, xcvi. 887 ; E., B. & B. 887. Lies for money paid under a mistake of fact, though plaintiff had means of knowledge at the time. Townsend v. Crowdy, xcviii. 477 ; 8 C. B. N. S. 477. Payments made to a railway company, whose rates included charges for col- lection and delivery, where it did not collect and deliver, may be recovered back as to the excess in this action. Barton v. Bristol and Exeter Railway Co., ci. 112; IB. 4 8. 112. Aliter, as to excess paid over rates charged other persons. Ibid. Not sums paid where company required to aifix on boards, at their toll- houses, the rates and tolls, and did not so affix them. Ibid. Lies for stakes deposited to abide the event of a race which had become im- possible. Carr v. Martinson, eii. 456 ; 1 E. & E. 456. 304 MONEY HAD AND RECEIVED. MOETGAGE, I. Does not lie for money paid for shares of stock, unless the consideration has entirely failed. Stray v. Russell, cii. 887 ; 1 E. & E. 887. And it has not failed if the certificates and transfers have been delivered though the bank refused to accept the transfer. Ibid. And not if plaintiff refused to accept the shares, of which refusal his letter to his own broker may be evidence. Ibid. When holder of drafts cannot sue on them, on account of failure to cancel the stamps, it is too late to sue for consideration money after a year. Pooley v. Brown, ciii. 566 ; 11 C. B. N. S. 566. Semble, action cannot be maintained at all in such a case. Williams, J., dis- senting. Ibid. Will not lie by holder of a bill drawn by a partnership against one partner, who did not expressly authorize the act, and as to whom there was no implica- tion of an authority from the nature of the business. Nicholson v. Kicketts, cv. 498 ; 2 E. & E. 498. Lies for money wrongfully exacted by person having lien on chattel and paid under protest. Somes v. Shipping Co., cvii. (H. of L.) 766; 3 E. & E. 766. A vendee affected with notice that the vendor had purchased from a trustee at a grossly inadequate price, may recover back the deposit money. Stevens v. Austen, cvii. 685 ; 3 E. & E. 685. Will lie for the recovery back of illegal tolls paid. Baxendale v. G. W. Kail- way Co., cxi. 137; 16 C. B. N. S. 137. There must be privity of contract between plaintiff and defendant. Watson v. Russell, cxiii. 34 ; 3 B. & S. 34. Will not lie to recover back money paid on check drawn by third party to payee on condition of which he was ignorant. Ibid. MONEY PAID. Where it was agreed that plaintiff might sell defendant's patent with his own estate, and plaintiff guaranteed the repayment by defendant of a sum borrowed for stamp duty on the patent which he was compelled to pay, but the sale was not affected, held he could recover. Pelly v. Sidney, xciv. 679 ; 5 C. B. N. S. 679. Lies when paid at request of defendant, even though for amount due on stock gambling contract. Rosewarne v. Billing, cix. 316 ; 15 C. B. N. S. 316. Money paid under mistake of fact as freight, may be recovered back from owner of ship. Shand v. Grant, cix. 324 ; 15 C. B. N. S. 324. But not from ship's broker who had settled in good faith with owner. Ibid. Will be sustained upon failure of title to goods from a shop, because there is implied warranty of title. Eichholz ». Bannister, cxii. 708 ; 17 C. B. N. S. 708. Money paid for maintenance of pauper, not chargeable to parish owing to sub- sequent act, not recoverable. Sanford v. Manchester, cxiii. 599 ; 3 B. & S. 599. MORTGAGE. I. Of personal property. (6) Fixtures as between Mort- (a) Mortgage of ship. gagor and Mortgagee. II. Of real estate. (c) Other matters. (a) Rights of Mortgagor. I. Op personal property. Where tenant mortgaged goods on the property, giving possession and then became bankrupt, owing more than a year's rent, it was held they could be ^dis- trained for the whole amount. Brocklehurst v. Lawe, xc. 176 ; 7 E. & B. 176. MOETGAGE, I. (a), II. (a), (6), (c). 305 The goods were liable for rent becoming due after assignees declined the tenancy. Ibid. If bailor mortgages the chattel, and the mortgagee with right demands pos- session, bailee may refuse to deliver to bailor. Royal Mail Co. v. Steam Packet Co., c. 860 ; 10 C. B. N. S. 860. Where a mortgagor of leaseholds attorned to the mortgagee, and in the deed gave him the same powers of entry and distress as the law gives to landlords S>r the recovery of rent, held that it did not authorize the assignee of the mort- gagee to aistrain for arrears due before the assignment. Brown v. Metropolitan Society, oii. 832 ; 1 E. & E. 832. A mortgage of personal chattels is good. Maugham v. Sharpe, cxii. 443 ; 17 C. B. N. S. 443. Where possession is taken under a mortgage, though not registered, it will be good as against one receiving bill of sale and registering under 17 & 18 Vict. c. 36. Ibid. And in sale by mortgagee under power in conveyance, he is not liable for neglect or misconduct to subsequent vendee. Ibid. (a) Mortgage of ship. Bill of sale of ship at sea, absolute in form and registered, intended as collat- eral security for debt, is a quasi mortgage. Myers v. Willis, lxxxiv. 77 ; 17 C. B. 77; and lxxxvi. 886 ; 18 C. B..8S6. Registry as part owner, under absolute bill of sale, given to secure advances, does not make one liable as owner for repairs ordered by managing owner. Hackwood v. Lyall, lxxxiv. 124 ; 17 C. B. 124. On policy providing that if ship be mortgaged the owner should have no claim unless mortgagee give an undertaking to pay all sums to become due, giving an undertaking is a condition precedent. Hughes v. Tindall, lxxxvi. 98 ; 18 C. B. 98. Mortgagee is the owner of the ship, and the mortgage is Talid as to a subse- quent judgment creditor, though it contain a clause for the postponement of the power of sale, and there be no endorsement of the particulars on the certificate of registration. Dickinson v. Kitchem, xcii. 789 ; 8 E. & B. 789. Under a power authorizing the attorney to sign any hypothecation of the vessel or her cargo, to sell absolutely or by way of mortgage, and to do all acts about the business aforesaid that the owners could do, a deed by the attorney, assign- ing all the freight, hire, passage money and earnings, with a proviso for redemp- tion, conveys the right to passage money paid before arrival or possession taken. Willis v. Palmer, xcvii. 340 ; 7 C. B. N. 3. 340. Shipwright has a lien for repairs ordered by mortgagor, as against mortgagee who permits mortgagor to continue in apparent ownership. Williams v. Allsup, c. 417; 10C. B. N. S. 417. 17 & 18 Vict. c. 104, s. 66, does not prevent the owner of a ship, who has exe- cuted an absolute transfer from showing that it was really a mortgage. Ward v. Beck, cvi. 668 ; 13 C. B. N. S. 668. II. Of keal estate. (a) Rights of Mortgagor. Whether in building mortgage, with clause of letting, mortgagor be considered as tenant at will or otherwise, his goods on premises not liable to distress after death. Turner v. Barnes, ex. 435 ; 2 B. & S. 435. (6) Fixtures as between Mortgagor and Mortgagee. The mortgagee of tenant's fixtures may, after a surrender of the term, enter and sever them. Loan Co. v. Drake, xcv. 798 ; 6 C. B. N. S. 798. Fixtures, which would be removable by a tenant, annexed by the mortgagor in possession to the freehold for a permanent purpose, enure to the benefit of the mortgagee. Walmsley v. Milne, xcvii. 115 ; 7 C. B. N. S. 115. (c) Other matters. Where part of lands charged under Lands Improvement Company's Acts, 16 & 17 Vict. c. 154, and 18 & 19 Vict. c. 84, is subject to mortgage, the whole amount Vol. III.— 20 306 MORTGAGE, II. (c). NAMES. NEGLIGENCE, I. of charge has priority until apportionment. Lands Improvement Co. v. Rich- mond, lxxxiv. 145 ; 17 C. B. 145. Solicitor of mortgagee has no claim against mortgagor for his charges, where negotiation fails. Wilkinson v. Grant, lxxxvi. 319 ; 18 C. B. 319. A mortgagee of copyhold premises cannot maintain ejectment until he has been admitted by lord of manor, unless the relation of landlord and tenant is established aliunde. Rayson v. Adcock, civ. 867 ; 12 C. B. N. S. 867. One who has purchased the equity of redemption in a lease, and obtained from the mortgagee authority to collect the rents and an agreement to convey, may distrain for rent in arrear. Snell v. Finch, cvi. 651 ; 13 C. B. N. S. 651. NAMES. Mere assumption of name by persons will not prevent title vesting in them, if conveyance be made to them in the assumed name. Maugham v. Sharpe, 443 ; 17 C. B. N. S. 443. NEGLIGENCE. I. Generally. III. Liability of master for injuries to II. Liability of master for Negligence servant, of servant. IV. Damages. V. Contributory Negligence. I. Generally. One who takes a stolen negotiable instrument bona fide and for value is en- titled to recover on it, though negligent in availing himself of means of knowledge of bad title. Raphael v. Bank of England, lxxxiv. 161 ; 17 0. B. 161. Where felony is set up as an answer to a defence under the Carriers' Act, 11 Geo. 4 and 1 Wm. 4, c. 68, the question of negligence is immaterial. G. W. Railway Co. v. Rimell, lxxxvi. 575 ; 18 C. B. 575. Also reported, xcv. 917 ; 6 C. B. N. S. 917. An attorney who brought an abortive suit on a bill of exchange before having ascertained his client's title, not permitted to recover costs. Long v. Orsi, lxxxvi. 610; 18 C. B. 610. Though bill of lading stipulate against accountability for leakage or breakage, the shipowner is liable for such loss occasioned by gross negligence. Phillips v. Clark, lxxxix. 156 ; 2 C. B. N. S. 156. Where a railway company had a lamp room with the door unlocked near the urinal room, and a passenger unable to read the inscriptions entered the wrong door and was injured by falling, it was held there was no evidence of negligence. Toomey v. Railway Co., xci. 146 ; 3 C. B. N. S. 146. _ It is not negligence in plaintiff's attorney, in an action on a bond where pay- ments were alleged, not to have applied for an order of reference. Chapman v. Van Toll, xcii. 396 ; 8 B. & B. 396. Action lies against a local board of health eo nomine for negligence. South- ampton Bridge Co. v. Local Board, xcii. 801 ; 8 E. & B. 801. Lender is liable for injuries caused to the borrower by an implement which he knew to be defective. Blakemore v. B. & E. Railway Co., xcii. 1035 ; 8 E. & B. 1835. AUter, where the person injured was a stranger called to assist the borrower in using it. Ibid. Contractor employed by the board of health, leaving a hole and heap of earth NEGLIGENCE, I. 307 in the highway over night without a lamp, is personally liable for injuries caused by it. Arthy v. Coleman, xcii. 1093 ; 8 E. & B. 1093. Driving to the left, though a lamp on the right, is not concurrent negligence on the part of the person injured. Ibid. In an action against a sheriff for not arresting, it is no justification that, after arresting under an invalid writ, he endeavored to hold under the valid writ, but defendant was discharged. Hooper v. Lane, xcii. 1095 ; 8 E. & B. 1095. Railway company not obliged to fence between their railway and a yard adjoin- ing the station, through which carried cattle must pass. Roberts v. Great West- ern Railway Co., xcii! 506 ; 4 C. B. N. S. 506. That a porter came into the yard with an ordinary lantern, frightening one of the cattle on to the track, where it was killed, is no evidence of negligence. Ibid. Case lies against one who, with the permission of the owner of a private road, negligently obstructs it, by means of which the horse of the plaintiff lawfully using it is injured. Corby v. Hill, xciii. 556 ; 4 C. B. N. S. 556. Semble, that driving on the wrong side of a road is not evidence of negligence, in an action by a foofe-passenger for injuries. Lloyd v. Ogleby, xciv. 667 : 5 C. B. N. S. 667. Agreement not to be liable for leakage or breakage, does not exempt a carrier from ordinary care in stowage. Phillips v. Clark, xciv. 881 ; 5 C. B. N. S. 881. Negligence in a railway company to leave unfenced a dangerous place on its grounds on the shortest way to and from its station. Burgess v. The G. W. Railway Co., xcv. 923 ; 6 C. B. N. S. 923. Brewer liable for injuries caused to a customer, by falling through a trap in the usual passage not sufficiently guarded. Chapman v. Rothwell, xcvi. 168 ; •E., B. & E. 168. Qucere, can a holder of shares, who by trusting blank transfers to his broker enables him, by forging an attestation, to induce the company to transfer the shares to bona fide purchasers, have the register rectified, under 19 & 20 Vict. c. 47, s. 25 and 20 & 21 Vict. c. 14, s. 8, and his name restored. Ex parte Swan, xcvii. 400 ; 7 C. B. N. S. 400. An owner of waste, unenclosed land, is not bound to fence an excavation in it, though near the highway. Hounsell v. Smyth, xcvii. 731 ; 7 C. B. N. S. 731. Lodging-house keeper not bound to take care of the goods of his lodger. Hol- der v. Soulby, xcviii. 254; 8 C. B. N. S. 254. Railway company permitting the use of a tramway belonging to it and run- ning beside the railway, for hire, is liable for negligence in leaving open a gate between the two ways. Marfell v. S. W. Railway Co., xcviii. 525 ; 8 C. B. N. S. 525. Where there is an even balance, whether the injury complained of resulted from want of care on one side or the other, he who founds his claim on the im- putation of negligence, fails. Cotton v. Wood, xcviii. 568; 8 C. B. N. S. 568. Landlord not in possession who lets houses in a ruinous condition, is liable for injuries caused thereby to adjacent premises. Todd v. Flight, xcix. 377 ; 9 C. B. N. S. 377. Trustees of a turnpike company are liable for doing their work so negligently as to cause injury. Whitehouse v. Pellowes, xcix. 901 ; 9 C. B. N. S. 901. 3 Geo. 4, c. 126, does not require that suit must be brought within three months from the commencement of a continuing injury. Ibid. Question of negligence in the construction of a locomotive for the jury. Free- mantle v. L. & N. W. Railway Co., c. 89 ; 10 C. B. N. S. 89. Where passenger's ticket provided that the ship not accountable for luggage, unless bills of lading signed, each passenger allowed twenty feet of luggage free, held that without bill of lading company not liable for loss caused by negligence of captain. Wilton v. Atlantic R. M. Steam Co., c. 453 ; 10 C. B. N. S. 453. A servant of carrier can sue the shipper for damages suffered through neglect of the latter to inform carrier of dangerous quality of goods shipped. Farrant v. Barnes, ciii. 553 ; 11 C. B. N. S. 553. The trial of a horse the day after he is purchased, in a crowded thoroughfare, is not enough to establish negligence in an action for an injury caused by a sud- den swerving of the horse. Hammack v. White, ciii. 588 ; 11 C. B. N. S. 588. The negligence must be affirmatively shown. Ibid. 308 NEGLIGENCE, I., IL Where A. hires B.'s share in a ship, B. is not responsible for A.'s negligence. Bernard v. Aaron, oiii. 889 ; 11 C. B. N. S. 889. There can be no recovery where there is contributory negligence. Witherley v. Regent's Canal Co., civ. 2 ; 12 C. B. N. S. 2. It is not a breach of duty, which will prevent a constable from recovering a reward offered for apprehension of a thief, that he did not inform the defendant that he had apprehended the thief till after he had seen the reward advertised. Neville v. Kelly, civ. 740 ; 12 C. B. N. S. 740. A public body, acting gratuitously for benefit of public, is responsible for neg- ligent performance of its duty. Clothier ». Webster, civ. 790 : 12 C. B. N. S. 790. An action for negligence will lie against contractor employed by a public body which is acting gratuitously for benefit of public. Ibid. The mere fact of defendant's horse being on the highway and kicking plaintiff is no evidence from which negligence may be inferred. Cox v. Burbridge, cvi. 430; 13 C. B. N. S. 430. Case lies for negligence in management of train at railway crossing, whereby carriage and horses were injured. Manchester Railway Co. v. Fullarton, cvii. 54; 14 C.B.N. S.54. Facts sufficient to constitute negligence. Ibid. Owner of vessel liable for injuries to submarine telegraph cable when there has been negligence. Telegraph Co. v. Dickson, cix. 759 ; 15 C. B. N. S. 759. Negligence in delivering bills of lading, where no duty is imposed on defend- ant by contract, circumstances duly stated, or mercantile usage, will not make him liable. Dutton v. Powles, ex. 174 ; 2 B. & S. 174. Dock company liable for negligence in not keeping basin free from obstruction,' whereby vessel was injured. Thompson v. N. E. Railway Co., ex. 106; 2 B. & For negligence of workman in not taking proper precautions in working on a highway, case lies. Cleveland v. Spier, cxi. 399 ; 16 C. B. N. S. 399. Where a horse of defendant wandered into an adjoining close, through negli- gence of defendant in not keeping up a fence, and inflicted injuries on another's horse, he is liable therefor. Lee v. Riley, cxiv. 722 ; 18 C. B. N. S. 722. Whether insufficiency of steps at railway platform is negligence, is question for the jury. Foy v. Railway Co., cxiv. 225 ; 18 C. B. N. S. 225. Where one railway company has been negligent in placing a post, recovery can be had for injury by a guard of another company having running powers over the line. Graham v. N. E. Railway Co., cxiv. 229 ; 18 C. B. N. S. 229. Where there are peculiar circumstances, such as sharpness of curve, the ques- tions of negligence of railroad company, and whether company exercised proper precaution at crossing, properly left to the jury. Bilbee v. Railway Co., cxiv. 584; 18 C.B.N. S. 584. When by deed of settlement a manager of a banking company is only liable for wilful neglect, he is not liable for negligence. Ward v. Greenland, cxv. 527 ; 19 C. B. N. S. 527. An attorney not liable when acting within scope of his authority with reason- able care and skill. Chown v. Parrott, cviii. 74 ; 14 C. B. N. S. 74. A landlord, who lets premises with a nuisance on them, is liable to strangers for damages thereby caused. Gandy v. Jubber, cxvii. 78 ; 5 B. & S. 78. Quaere, Ex. Ch. Ibid. 485. II. Liability of master for Negligence op servant. Where stray colt, being driven home, goes upon railway track through gate left open by negligence of company's servants, and is killed, the company is liable. Midland Railway Co. v. Daykin, lxxxiv. 126 ; 17 C. B. 126. Where a servant contracts individually to do work, which master afterward adopts, and is paid for, the latter is responsible for negligence. Holmes v. Onion, lxxxix. 790 ; 2 0. B. N. S. 790. Master not liable for the negligence of the stevedore, though the charter-party provide that the stevedore is to be paid by and to be under the orders of the cap- tain. Blaikie v. Stembridge, xcv. 894 ; 6 C. B. N. S. 894. The owner of a boat employing the crew is liable to a passenger for injuries NEGLIGENCE, II— IV. 309 caused by negligence of the crew, though the boat and crew are for the time hired by a third person, with whom the passenger bargained, and to whom ho paid his fare. Dalyell v. Tyrer, xcvi. 899 ; E., B. & B. 899. An employer is liable for injuries caused by the negligence of a contractor intrusted with a duty incumbent on the employer. Pickard v. Smith, c. 470 ; 10 C. B. N. S. 470. That defendant's servant put spurs to his horse near plaintiff, wno was kicked, is evidence of negligence. North v. Smith, c. 572 ; 10 C. B. N. S. 572. Trustees and commissioners, acting gratuitously in the execution of acts of parliament, for the benefit of the public, are not responsible for negligence of workmen or contractors employed by them. Holliday v. St. Leonards, ciii. 192 ; 11 C. B. N. S. 192. A person on whom is imposed a statutory obligation, is liable for injuries caused by the negligent performance of it by a contractor employed by him. Gray v. Pullen, cxyii. 970 ; 5 B. & S. 970. Drainage Commissioners, acting as trustees for a public purpose without re- ward, are not liable for damages resulting from the negligence of their servants. Coe v. Wise, cxvii. 440; 5 B. & S. 440. III. Liability of master for injuries to servant. Master does not warrant competency of fellow-servant, and is only responsible for negligeoce in selection. Tarrant v. Webb, lxxxvi. 797 ; 18 C. B. 797. For injuries to the servant the master is not liable, unless personally negli- gent. Ormond v. Holland, xcvi. 102 : E., B. & E. 102. The doctrine that a servant takes the risks of his employment, does not apply where the master has been negligent. Mellors v. Shaw, ci. 437 ; 1 B. & S. 437. He, who volunteers to assist a servant, and is injured through negligence of another servant, cannot recover from master. Potter v. Faulkner, ci. 800 ; 1 B. & S. 800. Master is not responsible for inj ury to a servant through negligence of a fellow- servant. Searle v. Lindsay, ciii. 429 ; 11 C. B. N. S. 429. Master liable to servant while working with him for injury. occurring to him through negligence of master. Ashworth v. Stanwix, cvii. 702 ; 3 E. & E. 702. Partner of master so working also liable. Ibid. Doctrine of negligence of fellow workman does not apply in such a case. Ibid. Case does not lie against employer for injuries caused by negligence of co- employee. Lovegrove v. L. B. Railway Co.; Gallagher w. Piper, cxi. 669; 16 C. B. N. S. 669. Note relating to this principle. Ibid. Master not liable to servant for negligence of fellow-servant unless it be shown that he is in the position of vice-principal or manager. Murphy v. Smith, cxv. 361; 19 C. B. N. S. 361. Semble, that in such a case he is liable. Ibid. A carpenter employed by a railway company cannot recover against it for injuries caused by the negligence of the company's porters in shifting a locomo- tive. Morgan v. Vale of Neath Railway Co., cxvii. 570; 5 B. & S. 570. Affirmed in Exchequer Chamber. Ibid. 736. In a suit for negligence, against an agent to collect insurance, where the money is retained by an insurance broker who knew of the agency but claimed a lien for other commissions due him from the agent, the measure of damages is not the whole sum in the hands of the broker. Cahill v. Dawson, xci. 106 ; 3 C. B. N. S. 106. IV. Damages. Damages under 9 & 10 Vict. c. 93, may be given for the reasonable expectation of pecuniary advantage from the life of the deceased. Dalton v. S. E. Railway Co., xciii. 296 ; 4 C. B. N. S. 296. But not for funeral or other expenses. Ibid. For negligence in delivering, a carrier is liable for difference between value at the time of delivery and value at the time the goods should have been delivered. Wilson v. L. & Y. Railway Co., xcix. 632; 9 C. B. N. S. 632. Rule as to measure of damages in the United States in case of death of party, or. injury, by negligence. Note to Pym v. G. N. Railway Co., ex. 769 ; 2 B. & S. 769. 310 NEGLIGENCE, V. NEW TRIAL, I. V. Contributory Negligence. Plaintiff cannot recover where collision caused by absence of light on his col- lier, though defendant's steamer running too fast, and jury find "with prepon- derance of blame." Dowell v. Steam Nav. Co., lxxxv. 195 ; 5 E. & B. 195. Owner of factory who failed to fence in shaft, as required by 7 & 8 Vict. c. 15, not liable for 'injuries to employee who wilfully set it in motion. Caswell v. Worth, lxxxv. 849 ; 5 B. & B. 849. Innkeeper is liable for goods of guest stolen, unless the negligence of the guest causes the loss in such a way that it would not have happened if he had used ordinary care. Cashill v. Wright, lxxxviii. 891 ; 6 E. & B. 891. Driving to the left at night, though a lamp to the right, is not concurrent neg- ligence preventing recovery for injuries caused by an obstruction. Arthy v. Coleman, xcii. 1093 ; 8 E. & B. 1093. Negligence on the part of the plaintiff, which does not directly contribute to the accident, does not prevent recovery. Tuff v. Warman, lxxxix. 740 ; 2 C. B. N. S. 740. Affirmed in Ex. Ch. xciv. 573 ; 5 C. B. N. S. 573. A child of tender years, in charge of an older person, injured by the negligence of defendant, cannot recover if there is concurrent negligence on the part of his custodian. Waite v. N. E. Railway Co., xcvi. 719 ; E., B. & E. 719. Master not liable for injury to servant, caused by habitual negligence of fellow- servants, though known to master, if there be contributory negligence. Senior v. Ward, cii. 385; 1 E. & E. 385. There can be no recovery where there is contributory negligence. Witherley v. Regent's Canal Co., civ. 2 ; 12 C. B. N. S. 2. One exposing himself to danger in the performance of a lawful duty, unless the circumstances are such that it is a want of ordinary prudence, is not guilty of contributory negligence. Thompson v. N. E. Railway Co., ex. 106 ; 2 B. & S. 106. One casually appealed to for information by a workman, on a highway, is not a "volunteer assistant," so as to exhonerate the master from liability for injury to him by negligence of workman. Cleveland v. Spier, cxi. 399 ; 16 C. B. N. S. 399. NEW TRIAL. I. General grounds on which New V. Misconduct of party to the cause. Trial granted. VI. Excessiveness or inadequacy of II. Where there has been misdirection the damages. or where verdict is against law. VII. New Trial in criminal cases. III. Where verdict is contrary to evi- VIII. Of the motion for a New Trial. dence. IX. Costs of former Trial. IV. Where new facts have been dis- X. Time for preparation. covered. I. General grounds on which New Trial granted. Not granted where, in an action for the non-completion of a ship, the jury based the verdict upon the difference between the amount she would have pro- bably earned, had she been ready at the time agreed upon, when freights were high, and the amount she actually did earn when delivered. Fletcher v. Tay- leur, lxxxiv. 21 ; 17 C. B. 21. Where case tried before commissioner of Nisi Prius by consent not in writing and without an order, new trial refused. Andrewes v. Elliott, lxxxv. 502 ; 5 E. & B. 502. Affirmed in Ex. Ch. lxxxviii. 338 ; 6 E. & B. 338. Where plaintiff was nonsuited because of the absence of his attorney, a new trial granted on condition that the attorney himself pay the costs. Townley i>. Jones', xcviii. 289 ; 8 C. B. N. S. 289. Where jury have assessed the damages not with reference to the injury, but solely to give the plaintiff costs, a new trial will be granted. Poole v. Whitcomty civ. 770 ; 12 C. B. N. S. 770. NEW TEIAL, II. 311 II. Where there has been misdirection or where verdict is AGAINST LAW. Where there was verdict against tenant, under agreement that he should cul- tivate farm in the same way, or as near as circumstances would admit as Parsons had cultivated same, and in all events according to rules of good husbandry in neighborhood, and judge did not leave it to jury to find upon what terms "Par- sons held farm, new trial granted. Hood v. Kendall, Ixxxiv. 260 ; 17 C. B. 260. Where jury found verdict contrary to direction of judge. Wood v. Cox, Ixxxiv. 280 ; 17 C. B. 280. Where plaintiff testified that the vendee, alleging the seed to be hot and mouldy, spread it out thin to dry, but that plaintiff, vendor, did not authorize the act, and that the seed was in good condition, and the judge directed a nonsuit on the ground of no evidence of acceptance, a new trial was granted. Parker v. Wal- lis, lxxxv. 21 ; 5 E. & B. 21. Where judge instructed jury that defendant liable if he held himself out as owner of vessel, and person acted as master with his privity and consent, and proper goods were supplied upon credit of owner by order of master given with privity of owner, new trial granted. Mitchesen v. Oliver, lxxxvi. 419 ; 5 E. & B. 519. Where, in action to recover purchase-money of a horse, which had been returned, judge omitted to direct jury to find whether it was the bargain that it should be returned, new trial granted. Foster v. Smith, lxxxvi. 156 ; 18 C. B. 156. Granted where charge literally correct but might have been misunderstood. Pennell v. Dawson, lxxxvi. 355 ; 18 C. B. 355. Where in action by servant against masterfor injuries caused by fellow-servant, judge charged that plaintiff could recover if latter was incompetent, new trial granted. Tarrant v. Webb, lxxxvi. 797 ; 18 C. B. 797. Where judge directed verdict to be entered for defendant, but there was doubt as to his interpretation of the plea and the question at issue had not been tried, new trial granted. Moore v. Webb, lxxxvii. 673 ; 1 C. B. N. S. 673. Not granted where judge intimated an opinion as to the facts, but left them to be found by the jury. Chadwick v. Steam Packet Co., Ixxxviii. 771 ; 6 E. & B. 771. In ejectment by the heir, it is a misdirection to tell the jury that he must show the incompetency of testator, and if in doubt they should find for devisee. Sutton v. Sadler, xci. 87 ; 3 C. B. N. S. 87. Telling jury that the non-production of a paper and objection to it as testimony afforded an inference that it was adverse to the party objecting, not ground for a new trial. Ibid. And instructing the jury that they might consider as a means of inferring competency, the concurrence between statements of testator on his death bed and the provisions of a will made a year before, is no ground. Ibid. Where on a question of novelty in a patent case the judge left it to the jury to say whether a person of ordinary skill could from specifications in a prior patent make the article claimed by plaintiff's patent, a new trial was granted. Betts v. Menzies, xcii. 923 ; 8 E. & B. 923. Not where an inaccurate statement did not bear on important points or on the law which was to guide the jury. Warner v. Riddiford, xciii. 188 ; 4 C. B. N. S. 188. Where the judge left, it to the jury to say whether by a proviso in the written agreement of the parties they meant to exclude a custom; a new trial was granted. Parker v. Ibbetson, xciii. 346 ; 4 C. B. N. S. 346. Where evidence given in support of enough of the allegations in a plea to make a good defence the case should be given to the jury, though the whole not proven. Jones v. Williamson, xcv. 924 ; 6 C. B. N. S. 924. Where a libel is prima facie a privileged communication, evidence of subse- quent statements showing malice may be given, but if the interval bo long the failure of the judge to instruct the jury to consider the possibility of their re- ferring to something after the libel is ground for new trial. Hemmings v. Gasson, xcvi. 346 ; E., B. & E. 346. Where agent, representing himself as principal, induced defendant to accept 312 NEW TRIAL, II.— VI. goods in satisfaction of his own debt, the name of proprietor being over the cellar, but not seen, and he being present, the invoices not bearing his name, held a misdirection, in an action by the proprietor for goods sold and delivered, to leave it to the jury to find simply who was the owner. Bamazotti v. BowrinjT, xcvii. 851 ; 7 C. B. N._ S. 851. Where plaintiff's evidence is equally consistent with the absence and the exist- ence of negligence in the defendant, the case should not go to the jury. Cotton v. "Wood, xcviii. 568 ; 8 C. B. N. S. 568. Mistaken opinion of judge, as to a question of fact, no ground. Pole ». Cet- covich, xcix. 430 ; 9 C. B. N. S. 430. Not for leaving question of negligence, in construction of locomotive, to juiy, there being some conflict of testimony. Freemantle v. L. & N. W. Railway Co., c. 89; 100. B. N. S. 89. New trial will not be granted where the judge has merely declined to exercise his discretion to prevent the putting of improper questions. Bradlaugh v. Ed- wards, ciii. 377 ; 11 C. B. N. S. 377. The mistaken ruling of a judge, on a matter collateral to the issue, is not a reason for a new trial, where no injustice has been done. Henman v. Lester, civ. 776 ; 12 C. B. N. S. 776. III. Where vekdict is contrary to evidence. Where master of vessel recovered, for delay, on charter-party providing that she should be loaded in regular turn, and court were not satisfied she had noi been loaded in turn, new trial granted. Hudson v. Clementson, lxxxvi. 213 : 18 C. B. 213. Evidence of acts of ownership of a several fishery, for sixty years, by granting licenses, and warning persons off, is sufficient to support a verdict, though on the other side there was evidence of claims of general right in the same period. Man- nail v. Fisher, xciv. 856 ; 5 C. B. N. S. 856. Where the jury gave a verdict of &d. for injuries, there being evidence of 41. 10s. paid for surgical attendance, a new trial granted. Tedd v. Douglas, xciv. 895 ; 5 C. B. N. S. 895. Proof of instructions from a director of a corporation, and from a solicitor who had acted for it in former sales, is no evidence of authority from the corporation to sell. Moody v. L. & B. Railway Co., ci. 290 ; 1 B. & S. 290. The doctrine, that if there is a scintilla of evidence for the jury the verdict will stand, is exploded. Mellors v. Shaw, ci. 437 ; 1 B. & S. 437. IV. Where new eacts have been discovered. Where due diligence would have disclosed the fact upon which new trial is asked, it will not be allowed. Gambart v. Mayne, viii. 320 ; 14 C. B. N. S. 320. V. Misconduct op party to the cause. Where failure of justice through fault of parties in not submitting the proper questions to the court, new trial granted on payment of costs. Mackley v. Pat- tenden, ci. 178; 1 B. & S. 178. VI. Excessiveness or inadequacy of damages. Refused where verdict for 151. had some evidence to support it, though in opinion of judge preponderance the other way. Hawkins v. Alder, lxxxvi. 640 : 18 0. B. 640. Common Law Procedure Act has not changed the rule where verdict under 201. Ibid. Not granted in breach of promise case, because of excessive damages, unless jury mistaken or prejudiced. Smith v. Woodfine, lxxxvii. 660 ; 1 C. B. N. S. 660. Affidavit of defendant cannot be used to explain evidence. Ibid. Court will not disturb a verdict for heavy damages for injuries to person on the ground that the plaintiff, contrary to medical advice, engaged in business and aggravated his ailments. Saunders v. L. & N. W. Railway Co., xcviii. 887 ; 8 C. B. N. S. 887. A new trial will not be granted on ground of inadequacy of the damages, NEW TRIAL, VI.— X. 313 ■where the question was purely for the iury. Bradlaugh v. Edwards, ciii. 377 ; 11 C. B. NT S. 377. A new trial will not be granted before sheriff when less than 5£. is sought to be recovered. Lee v. Evans, civ. 368 ; 12 C. B. N. S. 368. VII. New Trial in criminal cases. In a case of misdemeanor an improper discharge of the jury after trial com- menced, is not a legal bar to another trial. Begina v. Charlesworth, ci. 460 : 1 B. & S. 460. On an indictment for obstructing a highway, after a verdict of "not guilty,' 7 a new trial will not be granted because the verdict is against the evidence though judge is dissatisfied with the verdict. Begina v. Johnson, cv. 613 ; 2 E. & B. 613. VIII. Op the motion for a New Trial. Rule for new trial in case tried by sheriff not granted unless affidavit verifying his notes, made within four days. Sante v. Hicks, lxxxiv. 523 ; 17 C. B. 523. Judge of county court having disposed of a motion for a new trial cannot after- ward rehear the case. G. N. Railway Co. v. Mossop, lxxxiv. 130; 17 C. B. 130. Quaere, as to the right of inferior courts to grant new trials. Ibid. On motion for new trial in action of crim. con., affidavit of defendant received but not that of plaintiff's wife. Hawker v. Seale, lxxxiv. 595; 17 C. B. 595. Habeas corpus not granted to bring up a prisoner to move for a new trial. Benns v. Mosley, lxxxix. 116 ; 2 C. B. N. S. 116. Semble, that on a motion for new trial in crim. con. case the affidavit of plain- tiff's wife cannot be used for any purpose. Ling v. Croker, lxxxix. 760 ; 2 C. B. N. S. 760. P * S Semble, that on the death of the party since the trial administration should be taken out before the motion. Lloyd v. Ogleby, xciv. 667 ; 5 C. B. N. S. 667. Only one day intervening since the trial the court refused to reserve the motion until the next term, on the ground of want of time to prepare affidavits of surprise. Cooper «. Lloyd, xcv. 519 ; 6 C. B. N. S. 519. New trial having been granted plaintiff ex debito jvstitice, court refused to compel him to proceed to a second trial within a time limited. Oakley v. Ooddeen, xcviii. 895 ; 8 C. B. N. S. 895. Inspection of documents produced in evidence not permitted for the purpose of moving for new trial. Pratt v. Goswell, xcix. 706 ; 9 C. B. N. S. 706. Not necessary to have notes of judge at time of moving for new trial. Morrison v. Wookey, cix. 457 ; 15 C. B. N. S. 457. It is sufficient if they are produced when cause comes to be shown. Ibid. In defendant's rule for new trial or to enter verdict for himself, he was allowed to elect. Pease v. Chaytor, cxiii. 620 ; 3 B. & S. 620. IX. Costs of former Trial. Where costs of a former trial are made to " abide the event of the cause," and plaintiff fails on the only count insisted on at the first trial, he loses his costs, though he may recover on the count not insisted on at first trial, and on which the defendant had at first trial got a yerdict. Dawson v. Harris, ciii. 801 ; 11 C. B. N. S. 801. X. Time for preparation. After new trial granted plaintiff is entitled to same time for proceeding to trial as at first. Oakley ». Ooddeen, ciii. 806 ; 11 C. B. N. S. 806. 314 NOTICE. NOTICE. Where notice required for forfeiture, and at the proper place a board put up, without shareholder's knowledge, directed all letters for his firm to be sent to A., a notice sent to A. which did not reach shareholder was insufficient. Cockerel! v. Van Diemen's Land Co., lxxxvi. 454; 18 C. B. 454. Affirmed in Exchequer Chamber, Ixxxvii. 732 ; 1C.B. N. S. 732. Where act provided that shareholder in a joint stock company should abso- lutely forfeit his shares upon non-payment of calls, but the company should have no advantage from it until after notice, forfeiture was not complete until after notice. Ibid. Notice, under 1 & 2 Viet. c. 74, which does not state place where application for wan-ant to be made, nor that person giving notice is agent of owner, is in- formal. Delaney v. Fox, Ixxxvii. 166 ; 1 C. B. N. S. 166. Notice, under 7 & 8 Vict. c. 113, which includes two persons, though the application confined to one, is good. Dossett v. Harding, Ixxxvii. 524 ; 1 C. B. N. S. 524. Powis v. Harding, Ixxxvii. 533 ; 1 C. B. N. S. 533. Notice, under 7 & 8 Vict. c. 113, in the alternative of intention to apply to the court or a judge, is good. Bendy v. Harding, Ixxxvii. 551 ; 1 C. B. N. S. 551. Notice, under 7 & 8 Vict. c. 113, to John Marshall, which should have been to John /S. Marshall, accompanied by oath of identity, is sufficient. Thompson «. Harding, Ixxxvii. 555 ; 1 C. B. N. S. 555. Notice of trial, which did not mislead, is good, though verbally inaccurate. Fenn v. Green, lxxxviii. 656 ; 6 B. & B. 656. Notice for a special jury, under sect. 54 of the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, is not a waiver of a previous notice, under sect. 68, so as to extend the time for issuing a warrant. Glynn v. Aberdale Valley Railway Co., xcv. 359 ; 6 C. B. N. S. 359. Under sect. 223 of 5 & 6 Wm. 4, c. 107, notice is required only in the case of some act or omission warranted, or supposed to be warranted, by the statute. Gai-ton v. G. W. Railway Co., xcvi. 837 ; E., B. & E. 837. A contract, to be binding for twelve months certain, and to continue from time to time until three months' notice be given, may be determined at the end of the first year by notice. Brown v. Symons, xcviii. 208 ; 8 C. B. N. S. 208. Notice affixed to the church, that the wardens, overseers and principal inhabit- ants of this parish are requested to meet in the vestry, to examine the wardens' accounts and grant them a rate, is sufficient. Rand v. Green, xcix. 470 ; 9 C. B. N. S. 470. Tenant from week to week is entitled to reasonable notice to quit. Jones v. Mills, c. 788; IOC. B.N. S. 788. Notice of the allowance of a rate need not be signed, and is sufficiently pub- lished if affixed to the church door before afternoon service on the following Sunday. Burnley v. Methley, cii. 789 ; 1 E. & E. 789. An acceptance " per procuration" is notice of a limited authority to accept. Stagg v. Elliott, civ. 373; 12 C. B. N. S. 373. Notice to plaintiff's attorney of an act of bankruptcy, is notice to plaintiff. Brewin u. Briscoe, cv. 1 17 ; 2 E. & E. 117. Notices given under Public Health Act, 11 & 12 Vict. c. 63, s. 72, prior to operation of Local Government Act, 21 & 22 Vict. c. 98, are good, under s. 9 of said act. Felkin v. Berridge, cix. 257 ; 15 C. B. N. S. 257. Notice of chargeability and copy of order of removal, &c, of pauper, sent by post, under 4 & 5 Wm. 4, c. 76, not void because delivered on Sunday. Regina v. Leominster, ex. 391 ; 2 B. & S. 391. Notice of objection to voter, by mail, under 6 & 7 Vict. c. 18, s. 100, when good. Benish v. Booth, cxiv. Ill ; 18 C. B. N. S. 111. A notice, under 8 & 9 Vict. c. 18, s. 68, must state the quality and quantity of the estate. Healey v. T. V. Railway Co., cxvii. 769 ; 5 B. & S. 769. NUISANCE, I. (a). 315 NUISANCE. I. Civil proceedings. JI. Criminal proceedings. (o) Bight of a private person to (a) What constitutes a nuisance, abate. I. Civil proceedings. Where, in an action for nuisance, defendant pleaded not guilty as to grievances before a certain date, and as to subsequent grievances paid a sum of money into court, the court refused to strike out the pleas. Fountain v. Chamberlain, lxxxvi. 660; 18 C. B. 660. Evidence of diminution of saleable value of property inadmissible. Battishill v. Reed, lxxxvi. 696 ; 18 C. B. 696. To enable reversioner to maintain an action, injury must be permanent. Simpson v. Savage, lxxxvii. 347 ; 1 C. B. N. S. 347. Burning bricks in a convenient and proper place is not a nuisance, though it render the enjoyment of life uncomfortable. Hole v. Barlow, xciii. 334 ; 4 C. B. N. S. 334. Notice of appeal, under s. 22 of 18 & 19 Vict. c. 121, must be given within fourteen days after notice of assessment. Regina v. Middleton, cii. 98 ; 1 E. & E. 98. The assessment, under s. 16, may be spread over a term of years, provided the levy in each year be not more than Is. in the pound on the rateable value as as- sessed to the highway rate. Ibid. Where the seashore bounds a parish, the space below high-water mark of me- dium tides is an " extra parochial place," within the Nuisances Removal Act, 18 & 19 Vict. c. 121, s. 6. Regina v. Gee, cii. 1068 ; 1 E. & E. 1068. Burning bricks so near plaintiff's residence as to make it substantially uncom- fortable is a nuisance, though done at a convenient time and place. Cavey v. Ledbitter, cvi. 470 ; 13 C. B. N. S. 470. Re-assessment for removal of nuisance, under 18 & 19 Vict. c. 12, s. 22, by extension of sewers allowable. Regina v. Bodkin, cvii. 271 ; 3 E. & E. 271. Obstruction of a public way, existing at time of dedication, is not a nuisance by reason of its continuance. Fisher v. Prowse, ex. 770 ; 2 B. & S. 770 ; Rob- bins v. Jones, cix. 221 ; 15 C. B. N. S. 221. Such right of way is subject to its condition at time of dedication. Ibid. Where street is lowered, under 18 & 19 Vict. c. 120, and steps rightfully there are replaced by new steps, it will not affect the original right. Fisher v. Prowse, ex. 770; 2B. &S. 770. It is no defence in an action for nuisance that the defendant's use of the land was reasonable and proper, if it be otherwise clearly a nuisance. Bamford v. Turnley, cxiii. 66 ; 3 B. & S. 66, reversing s. c. in Q. B., Ibid. 62, and overruling Hole v. Barlow, xciii. 334 ; 4 0. B. N. S. 334. Costs and expenses of abating nuisance cannot be recovered from one not owner at time of order to remove, under 19 & 20 Vict. c. 121, ss. 2, 19. Blyth- ing Union v. Warton, cxiii. 352 ; 3 B. & S. 352. Doctrine of sic utere tuo, how limited by questions of time, locality and cir- cumstances. (Bamford v. Turnley, cxiii. 66 ; 3 B. & S. 66, approved.) Tip- ping v. St. Helens Smelting Co., cxvi. 608 ; 4 B. & S. 608. (Affirmed H. of L. Ibid. 1093.) How far large manufacturing establishment injuring adjoining ground will be protected in action for nuisance. Ibid. A landlord who lets premises with a nuisance on them, is liable to strangers for damages thereby caused. Gandy v. Jubber, cxvii. 78 ; 5 B. & S. 78. Quaere by Exchequer Chamber, Ibid. 485. An action for a nuisance for obstructing a footway is local. Richardson v. Locklin, cxviii. 777 ; 6 B. & S. 777. . (a) Right op a private person to abate. One having a right to land at a quay on a navigable river, may pass over a dummy permanently moored so as to obstruct the approach. Eastern Counties Railway Co. v. Dorling, xciv. 821 ; 5 C. B. N. S. 821. 316 NUISANCE, I. (a), II. (a). Pollution of watercourse by drainage from mines, a nuisance. Hodgkinson v. Ennor, cxvi. 229 ; 4 B. & S. 229. II. Criminal proceedings. On an indictment for nuisance, evidence of an anterior conviction, under 16 & 17 Vict. c. 128, s. 1, for an offence committed in the course of the same trade is not admissible. Regina v. Fairie, xcii. 486 ; 8 B. & B. 486. Semble, that if the conviction had been on an indictment in precisely the same terms, it would not be admissible. Ibid. An order, under 18 & 19 Vict. c. 121, to abate and discontinue a nuisance and to do such works and acts as are necessary, is not subject to appeal. Ex parte Mayor of Liverpool, xcii. 537 ; 8 E. & B. 537. Tha^owner of a market penning sheep with hurdles on a pavement, where their droppings cause a nuisance, is bound to remove it, under 18 & 19 Vict. c. 121. Draper w. Sperring, c. 113; 10 C. B. N. S. 113. The justices cannot determine a compbint, under 18 & 19 Vict. c. 121, unless both the cause and effect of the nuisance be within the area of their jurisdiction. Regina v. Cotton, cii. 203 ; 1 E. & E. 203. It is an indictable nuisance to obstruct the footway with earth and bricks in order to lay down pipes for connecting gas mains with private houses without the authority of parliament. Regina v. Longton Gas Co., cv. 651 ; 2 E. & E. 651. Persons laying down a tramway, found by jury a nuisance, as obstructing high- way, are liable criminally. Regina v. Train, ex. 640 ; 2 B. & S. 640. Under 18 & 19 Vict. c. 121, s. 20, warrant to levy penalty imposed for dis- obeying order to abate nuisance cannot be issued without previous summons. Regina v. Jenkins, cxiii. 116 ; 3 B. & S. 116. Where statutory powers when conferred may be exercised without causing a nuisance, but because of changed conditions, it afterwards becomes impossible, the persons exercising them may be indicted. Regina v. Bradford Nav. Co.. cxviii. 631 ; 6 B. & S. 631. (a) What constitutes a Nuisance. Obstructing the footway with bricks and mortar and opening trenches for pur- pose of laying gas pipes to connect gas mains with private dwellings, unless done by authority of parliament. Regina v. Longton Gas Co., cv. 651 ; 2 E. & Brickmaking is not necessarily a noxious trade, within 11 & 12 Vict. c. 63. Board of Health v. Hill, cvi. 479 ; 13 C. B. N. S. 479. What will not constitute nuisance in public highway. Robbins v. Jones, cix. 221 ; 15 C. B. N. S. 221. It seems, that a camp shed improperly constructed and out of repair in a nav- igable river is a nuisance. White v. Phillips, cix. 245 ; 15 C. B. N. S. 245. When tramway obstructing highway will be a nuisance. Regina v. Train, ex. 640 ; 2 B. & S. 640. Unless within limits prescribed by 57 Geo. 3, c. 29, keeping swine is not per se a nuisance, under 25 & 26 Vict. c. 102. Vestry of Chelsea w.King, cxii. 625 ; 17 C. B, N. S. 625. Within the limits prescribed by prior act it is. Ibid. Excavation of land, to make owner liable for accident, must be adjoining pub- lic way. Binks v. S. Y, Railway Co., cxiii. 244 ; 3 B. & S. 244. Using a spot under a tree in Hyde Park is not sufficient to constitute a nui- sance within 16 & 17 Vict. c. 119, s. 1. Doggett v. Catterns (reversing Ibid, cxii. 669 ; 17 C. B. N. S. 669), cxv. 765; 19 C. B. N. S. 765. OATHS. OFFICE AND OFFICEES, I., II. 317 OATHS. An oath made under an act presenting a form which closed with "so help me God," is properly taken, though these words omitted. L. & C. Railway Co. v. Heaton, xcii. 952 ; 8 E. & B. 952. A Mohammedan attorney may be admitted on taking the oaths of allegiance and honest demeanor, but he cannot practice in England without also taking the oaths of supremacy and abjuration. In re Comroodeen Tyabjee, cii. 319 ; 1 E. & E. 319. OFFICE AND OFFICERS. I. Generally. IV. Liability of public Officer. II. Who is a public Officer. V. Fees of public Officer. III. Proof of being a public Officer. I. GrENEKALLY. Title of man bona fide in office, to be tried by quo warranto, not mandamus. Frost v. Mayor of Chester, lxxxv. 531 ; 5 E. & B. 531. Duties of the commissioner of the Insolvent Debtors' Court are judicial as well as ministerial. Regina v. Law, xc. 366 ; 7 E. & B. 366. It is the duty of the town clerk to arrange lists of voters and make copy of register without extra expense. Regina v. Allday, xc. 799 ; 7 E. & B. 799. Appointment of an election auditor in March, terminates the office of an in- cumbent, who held over. Regina v. Griffiths, xc. 952 ; 7 E. & B. 952. Minister of chapel has the right to appoint the clerk and continuance beyond the year is construed to be an appointment for another year. Jackson v. Cour- tenay, xcii. 8 ; 8 E. & B. 8. During the year the minister cannot remove him without cause. Ibid. There being a de facto burgess list made out for a borough, the mayor and assessors have no authority to prepare a new one. Seale v. The Queen, xcii. 22; 8E. &B. 22. When one of two, appointed, under 9 & 10 Vict., to execute jointly the office of clerk, dies, the other continues. Regina v. Wake, xcii. 384 ; 8 E. & B. 384. A churchwarden is not relieved from the duties of his office until his successor has been duly qualified. Bray v. Somer, ex. 374 ; 2 B. & S. 374. Under 5 & 6 Wm. 4, c. 76, s. 105, the recorder, as sole judge of the Court of Quarter Sessions, is the person having power to remove a clerk of the peace in a borough. Regina v. Hayward, ex. 585 ; 2 B. & S. 585. Quasre, whether, when a power of appointment is given by statute, such power includes the power of removal for misbehavior. Ibid. After a vacancy once occurring in office of superintendent registrar, clerk of fuardians not entitled virtute officii to the position, under 6 & 7 Wm. 4, c. 86, s. , and 7 Wm. 4, and 1 Vict. c. - 22, s. 19. Regina v. Acason, ex. 795 ; 2 B. & S. 795. The appointment of the superintendent registrar is then within the power of the guardians under said act. Ibid. It is the duty of the Commissioners of Police, under 6 & 7 Vict. c. 86, to see to the behavior of persons applying for licenses as conductors of stage carriages. Ex parte Mitcham, cxvii. 585 ; 5 B. & S. 585. The court has no jurisdiction to quash a provisional order of the secretary of state, under 21 & 22 Vict. c. 98, s. 75. Regina v. Hastings, cxviii. 401 ; 6 B. & S. 401. II. Who is a public Officer. Assistant clerk of county court is an officer liable to penalty, under 9 & 10 Vict. c. 95. Ackroyd v. Gill, lxxxv. 808 ; 5 E. & B. 808. Beadsmen performing no duties are not officers within the meaning of 2 Wm. 4, c. 45, s. 18. Faulkner v. Upper Boddington, xci. 412 ; 3 C. B. N. S. 412. 318 OFFICE AND OFFICEKS, II.— V. Fellowship in Lincoln College not an office under 2 Wm, 4, c. 45, s. 18. West v. Robson, xoi. 422 ; 3 C. B. N. S. 422. Clerk to the justioes holds his office only at their pleasure, and quo warranto does not lie. Regina v. Fox, xcii. 939 ; 8 E. & B. 939. Military Knight of Windsor is not. Heartley v. Banks, xciv. 40 ; 5 0. B. ,N. S. 40. The title of a person de facto an officer, cannot be questioned in a collateral proceeding. Regina v. South Weald, cxyii. 391 ; 5 B. & S. 391. III. Proof op being an Officer. Where an assistant overseer of a parish resigns office but withdraws resigna- tion, and salary is rescinded by vote of vestry, hut the vote is not duly confirmed, and duties are afterwards performed by him, ha is still in the office. Caunter v. Adams, cix. 512 ; 15 C. B. N. S. 512. IV. Liability of public Officer. Surveyor bona fide claiming and receiving fee to which he is found not to be entitled cannot be discharged from office under 7 & 8 Vict. c. 84, s. 79. Regina v. Badger, lxxxviii. 137 ; 6 E. & B. 137. Bailiff issuing a warrant under Absconding Debtors' Act, 14 & 15 Vict. c. 52, not liable to penalty under 9 & 10 Vict. c. 95. Warden v. Stone, xc. 603 ; 7 E. &B. 603. No appeal by a surveyor against the allowance of his accounts at the highway sessions. Regina v. Justices of Leicestershire, xcii. 557 ; 8 E. & B. 557. Mandamus does not lie to Compel parish officers to receive a pauper on an order of removal. Ex parte Overseers of Downton, xcii. 856 ; 8 E. & B. 856. Interest in the prosecution of parties does not disqualify a man from being clerk to the justices, but renders him liable to a penalty. Regina v. Fox, xcii. 939 ; 8 E. & B. 939. Trover lies against a surveyor, who having demolished a building, under 18 & 19 Vict. 120, detains the materials in the parish stone-yard as a security for the expenses. Tear v. Freebody, xciii. 228 ; 4 C. B. N. S. 228._ An action for services as clerk and attorney to commissioners, under a local act, lies against succeeding commissioners. Hall v. Taylor, xcvi. 107 ; E., B. & E. 107. An assistant surveyor, appointed by the highway board, under sect. 18 of 5 & 6 Wm. 4, c. 50, is not within the provisions of sect. 44. Adams v. Lakeman, xcvi. 615 ; E., B. & E. 615. The commissioners, under 10 & 11 Vict. c. 34, are bound to place fences along footways, for the protection of passers, and, if negligent therein, may be sued without affirmatively showing money in their hands. Ohrby v. Ryde Com- missioners, cxvii. 743 ; 5 B. & S. 743. An order of the Quarter Sessions, under 4 Geo. 4, c. 64, will excuse the gov- ernor of a house of correction in Middlesex from receiving a prisoner committed by justices, under 20 & 21 Vict. c. 118, for non-payment of rates. Regina v. Coldbath Fields Prison, cxviii. 352 ; 6 B. & S. 352. V. Fees of public Officer. Table of fees of magistrates' clerks must be approved at the sessions next after it is made. Bowman v. Blyth, xc. 26 ; 7 E. & B. 26. Clerk who, by mistake, charged a fee for two sureties, though there was but one, not liable to penalty, under 26 Geo. 2, c. 14. Ibid. A clerk of the peace, whose office has been curtailed in profits, but not abol- ished, is not entitled to compensation, under 5 [& 6 Wm. 4, c. 76. Regina v. Council of Brighton, xc. 249 ; 7 E. & B. 249. Quarter Sessions determine, without review, whether coroner entitled to his fees, under 25 Geo. 2, c. 29. Regina v. Gloucestershire, xc. 805 ; 7 E. & B. 805. Miter, as to fees under 7 Wm. 4 and 1 Vict. c. 68, s. 3. Ibid. Under 7 Wm. 4 and 1 Vict. c. 55, sheriff is entitled to 11. Is. for arresting, on a ca. sa., within a mile of his residence, and also to travelling expenses. Cooper v. Hill, xcv. 703 ; 6 0. B. N. S. 703. But not to fees for an assistant, or for conducting defendant to jail. Ibid. OFFICE AND OFFICERS, V. PAEISH. 319 The fee-simple owner of land, who grants a building lease at a peppercorn rent, is not liable for surveyor's fees in respect to the buildings, under 18 & 19 Vict. c. 122, s. 51. Evelyn v. Whichcord, xcvi. 126 ; E., B. & E. 126. 7 & 8 Vict. c. 71, s. 12, with reference to the city and liberty of Westminster, provides compensation for existing officers only. Nicholson v. Ellis, xcvi. 267 ; E., B. &E. 267. OUTLAWRY. Warrant of attorney to release errors concerning judgment, or " concerning any writ, warrant, process, declaration, plea, entry, or other proceeding whatsoever, of, or any way concerning the same," does not extend to proceedings in outlawry. Solomon v. Graham, lxxxv. 309 ; 5 E. & B. 309. Semble, that outlaw should appear in person, but appearance by attorney not subject of error. Ibid. And, further, after outlaw has been treated as if in court, and issue of law joined, judgment in error will not be given on ground of improper appearance. Ibid. Where defendant had been discharged, under Insolvent Debtors' Act, judg- ment of outlawry was set aside on his assigning all his goods and paying costs. Basterfield v. Sprye, lxxxviii. 376 ; 6 E. & B. 376. PARISH. Vestry provided for by private act, 5 Geo. 1, c. 19, is one elected for the gov- ernment of a parish, under 15 & 16 Vict. c. 85, s. 52. Regina v. Peters, lxxxviii. 225 ; 6 E. & B. 225. Land between high and low-water mark is prima facie beyond the parish. Regina ». Musson, xcii. 900 ; 8 E. & B. 900. _ A contribution order by the guardians, which does not estimate the probable balance due to the parish, is invalid, though the balances have been fraudulently appropriated, by a collector of rates, for other parishes. Hale v. The London Union, xcv. 863 ; 6 C. B. N. S. 863. Whenever, under 18 & 19 Vict. c. 120, a lighting rate, for any part of any parish, is distinguished from the general rate, it must be levied over the whole parish, having regard to sect. 165. St. James v. St. Mary, xcv. 878 ; 6 C. B. N. 3. 878. The word parish, in 15 & 16 Vict. c. 85, includes parishes not having separate overseers, and not separately maintaining their own poor. Regina v. Sudbury Burial Board, xcvi. 264 ; E., B. & E. 264. As to what parishes, 7 & 8 Vict. c. 101, s. 65, repeals 4 & 5 Wm. 4, c. 76, with reference to the appointment of auditors. Regina v. St. James, Westminster, cii. 861; 1 E. & E. 861. Where the seashore bounds a parish, that part between high-water mark of ordinary spring tides and medium tides is within the parish ; and below high- water mark of medium tides, is an " extra-parochial place," within 18 & 19 Vict. c. 121, s. 6. Regina v. Gee, cii. 1068 ; 1 E. & E. 1068. A parish can only act by convening a vestry and conducting its proceedings to their legal termination, by a show of hands, or a poll when a poll is demanded. White v. Steele, civ. 383 ; 12 C. B. N. S. 383. Where part of a parish is entitled to a burial board, then, under 18 & 19 Vict. c. 128, the rest of the parish may have another burial board. Viner v. Ton- ridge, cv. 9 ; 2 E. & E. 9. Where a parish comes as far as the bank of a river, there is a prima facie pre- sumption that the parish extends as far as the middle of the river. McCannon v. Sinclair, cv. 53 ; 2 E. & E. 53. 320 PAEISH. " Thornbury with Netherwood" is not such a "[separate" entry of Netherwood, in Registrar-General's report, as to make it a separate parish, under 20 Vict. c. 19. Regina v. Mytton, cv. 557 ; 2 E. & E. 557. By Act 18 & 19 Vict. c. 120 (Metropolis Management Act 1855), the district is substituted for the parish, as to taxation and expenditure, as well as management by district board. St. Botolph v. Whitechapel, cvii. 89 ; 3 E: & E. 89. Such board has discretion in apportioning levies among the parishes. Ibid. And such discretion, when exercised, will not be interfered with. Ibid. Water company not liable to parish for proportion of rate according to quan- tity of land occupied by apparatus. Regina v. Overseers of Putney, cvii. 108 ; 3 E. & E. 108. Circumstances of value of land and character of works, &c, considered in fixing rate. Ibid. A parish given a revocable license of the bishop, 6 & 7 Vm. 4, c. 85, for pub- lication of banns and solemnization of marriages, not a separate and distinct parish for ecclesiastical purposes, under 19 & 20 Vict. o. 104. Regina v. Perry, cvii. 640; 3E. &E. 640. The latter can only be created by ecclesiastical commissioners. Ibid. In the former the pew renters appoint one of the two churchwardens, the in- cumbent of the parish the other. Ibid. In the latter the inhabitants of the parish choose one of the churchwardens, the perpetual curate the other. Ibid. Such choice is made by the resident inhabitants who are entitled to vote at the election of churchwardens for the principal parish. Ibid. Power of vestry to appoint burial board, under 15 & 16 Vict. c. 85. Regina v. Overseers of Walcot, ex. 555 ; 2 B. & S. 555. Meaning of word " parish," in s. 10 of said act. Ibid. Duty of vestry as to lighting bridge, under 18 & 19 Vict. c. 120. Regina v. Lambeth, cxiii. 1 ; 3 B. & S. 1. Inhabitants of district, detached from parish for ecclesiastical purposes, under 59 Geo. 3, c. 134, s. 16, entitled to vote for churchwarden of old parish. Regina v. Stevens, cxiii. 333 ; 3 B. & S. 333. Such district still remains part of parish for parochial purposes. Ibid. Parish as to remainder, after districts taken out of it for ecclesiastical purposes, unaffected by 19 & 20 Vict. c. 104, when governed by local statutes. Regina v. Roberts, cxiii. 495 ; 3 B. & S. 495. A parochial district, having its own overseers and maintaining its own poor, is a " parish," within the meaning of 15 & 16 Vict. c. 85. Day v. Peacock, cxiv. 702; 18 C. B. N. S.702. Vestry cannot charge owner of premises for diversion of drainage, not insuffi- cient or defective to a new sewer, under 18 & 19 Vict. c. 120, ss. 69, 73. Vestry of Marylebone v. Viret, cxv. 424 ; 19 C. B. N. S. 424. When the boundary of a parish, by act of parliament, is a road, it extends ad medium filum vice. Regina v. Board of Works, cxvi. 526, 551 ; 4 B. & S. 526, 551. Parishes united for ecclesiastical purposes, entitled by vote of the vestry to constitute burial board, under 18 & 19 Vict. c. 128. Regina v. Coleshill, cxvi. 667 ; 4 B. &■ S. 667. Under 18 & 19 Vict. c. 128, burial board should fix upon each of two parishes finally the amount payable by each for expenses of burial ground. Ibid. A mere intention to resign the office of assistant overseer, followed by vote of vestry to increase salary, not duly confirmed and subsequent performance of duties, will not operate as a withdrawal from office. Caunter i>. Addams, cix. 512; 15 C. B. N. S. 512. Qucere, whether such officer could recover the additional salary. Ibid. A parish, for ecclesiastical purposes, carved out of a common law parish, is entitled, under 20 & 21 Vict. c. 81 , s. 5, to appoint a burial board for itself though there is already a board established for the entire original parish. Regina v. Walcot St. Sw'ithin, ex. 571 ; 2 B. & S. 571. Under 20 Vict. c. 19, s. 2, the report of the Registrar General on the census is not sufficient to establish a parish as extra parochial, if it be not so in point of fact. Regina v. Cousins, cxvi. 849 ; 4 B. & S. 849. A hamlet is assessable to the highway rates of the parish of which it forms a PARISH. PARLIAMENT. PARTNERSHIP, I. 321 part, though as far as memory and reputation go it has always been assessed for those rates in another parish. Dawson v. Willouffhby, cxvii. 920 ; 5 B. & S. 920. fa Ji . The Quarter Sessions, under 3 & 4 Vict. o. 88, may erect a single parish into a separate police district. Ex parte Knowling, cxviii. 195 ; 6 B. & S. 195. When the expenses of a valuation by the assessment committee of a union may be charged to a parish, under ss. 37 & 39 of 25 & 26 Vict. c. 103. Regina v. Richmond, cxviii. 541 ; 6 B. & S. 541. The highway board may charge the expense of a prosecution of a person for obstructing a way against the parish in which the obstruction existed. Regina v. Heath, cxviii. 578 ; 6 B. & S. 578. PARLIAMENT. Payment of voters' travelling expenses not within Corrupt Practices Prevention Act, 17 & 18 Vict. c. 102, unless it be on condition that ne vote a certain way. Cooper v. Slade, lxxxviii. 447 ; 6 E. & B. 447. PARTNERSHIP. I. What constitutes a Partnership. (a) Power of one Partner to bind (a) When a Partnership as to his Co-Partners, third persons, but not in- (b) Dormant Partner. ter se. ( c) Other matters relating to II. Proof of Partnership. actions between Partners. III. Actions against Partners. IV. Bankruptcy. I. What constitutes a Partnership. Part owners of ship, though they resemble partners, are not ordinary partners, and cannot bind each other for repairs without consent. Brodie v. Howard, lxxxiv. 109 ; 17 C. B. 109. Part owners of a horse, who agree that he shall be kept by one of them, a cer- tain sum allowed for keep, and the profit and loss be equally divided, are not partners as to the animal. French v. Styring, lxxxix. 357 ; 2 C. B. N. S. 357. Qucere, as to the management. Ibid. The test of liability as a partner is not participation in the profits, but the fact whether the party stood in the relation of principal to the person incurring the obligation. Wheatcroft v. Hickman, xcix. 47 ; 9 C. B. N. S. 47. Where A. and B. own a ship, and A. works it, assuming all the liabilities, and paying B. a part of the profits, A. is the hirer of B.'s share, and B. is not respon- sible for damages caused by A.'s negligence. Bernard v. Aaron, ciii. 889 : 11 C. B. N. S. 889. Qucere, whether agreement in this case constituted a partnership. Courtenay v. Wagstaff, cxi. 110 ; 16 C. B. N. S. 110. Participation in profits in order to secure the payment of a debt, the participa- tion being limited to the amount of the indebtedness, does not constitute part- nership. Kilshaw v. Jukes, cxiii. 847 ; 3 B. & S. 847 ; following Cox v. Hick- man, 8 H. of E. C. 268 ; Wheatcroft v. Hickman, xcix. 47 ;, 9 C. B. N. S. 47. Member of cost-book company is a partner at common law and liable as such. Lanyon v. Smith, cxiii. 938 : 3 B. & 3, 938. Vol. III.— 21 322 PAETNEKSHIP, I. (a), II., III. (a), (J). (a) When a Partnership as to third persons, but not inter se. An agreement between a debtor and his creditors to apply net profits in pay- ment of old debts, they giving up their right to be paid out of his capital, creates a partnership as to third persons. Hickman v. Cox, Ixxxvi. 617 ; 18 C. B. 617. In the Ex. Ch. the court was equally divided. Hickman v. Cox, xci. 523 ; 3 C. B. N. S. 523. Reversed in House of Lords, xcix. 47 ; 9 C. B. N. S. 47. If defendant holds himself out as a partner and plaintiff, believing him, sup- plies goods to firm, defendant is liable as partner. Martyn v. Gray, cviii. 824 ; 14 C. B. N. S. 824. How far acts or conduct will make one liable as partner. Ibid., in notes, 844. A contract by three to furnish goods for joint adventure, profits to be in pro- portion to amount furnished, does not make two of the parties liable for goods purchased by other as his share. Heap v. Dobson, cix. 460 ; 15 C. B. N. S.460. A person holding himself out as a partner is liable. Courtenay v. Wagstaff, cxi. 110; 16 C.B.N. S. 110. Owner of theatre, receiving one-half the gross profits for use of building, not a partner. Lyon v. Knowles, cxiii. 556 ; 3 B. & S. 556. He is therefore not liable for representation of piece without consent of as- signee of author. Ibid. Test of partnership is relationship of principal and agent mutually between the parties. Kilshaw v. Jukes, cxhi. 847 ; 3 B. & S. 847, following Cox v. Hick man, 8 H. of L. C. 268 ; Wheatcroft e. Hickman, xcix. 47 ; 9 C. B. N. S. 47. Participation in profits cogent evidence, but liable to be rebutted. Ibid. Mere participation in profits in order to secure the payment of a debt, the participation being limited to the amount of the indebtedness, does not constitute partnership. Ibid. Where an agreement is made by which the whole earnings and profits of a business are handed over to defendant, to be paid thereout a certain sum pei annum, and in «ase of any excess a share of the profits, he is liable as a part ner. Bullen v. Sharp, cxiv. 614 ; 18 C. B. N. S. 614. II. Proof of Partnership. Participation in profit cogent evidence, but not in all cases conclusive. Kilshaw ». Jukes, cxiii. 847; 3 B. & S. 847, following Cox ». Hickman, 8 H. of L. C. 268 ; Wheatcroft ». Hickman, xcix. 47 ; 9 C. B. N. S. 47. Real test is relationship of principal and agent mutually between the parties. Ibid. III. Actions against Partners. Plaintiff, one of two part owners of a horse, who agree that a certain sum shall be allowed for keep and the profit and loss equally divided, can recover in assumpsit from the other a moiety of the expense for keep. French v. Stynng, lxxxix. 357; 2 0. B. N. S. 357. ^ ^ Breach of agreement to enter into partnership not excused by the fact that plaintiff had acted with fraud and dishonesty to a former partner, which fact was unknown to defendant. Andrewes v. Garstin, c. 444 ; 10 C. B. N. S. 444. (a) Power or one Partner to bind his Co-Partners. One who takes from a partner, in discharge of his individual debt, the firm acceptance, is bound to show that he did so with the authority of the co-partner. Leverson v. Lane, cvi. 278 ; 13 C. B. N. S. 278. A partner is liable for negligence of co-partner. Ashworth v. Stanwix, cvu. 702 ; 3 E. & E. 702. . , Even when the negligence has been committed in working with a servant, ana liability is to him. Ibid. Where there is partnership among three for selling, but not for buying, particu- lar goods to be furnished by each, the other two are not liable for goods pur- chased by one as his share. Heap v. Dobson, cix. 460; 15 C. B. N. S. 460. (5) Dormant Partner. Where A. and B., partners, arranged to draw bills, each in his own name on the other on joint account, neither is liable as a partner on the bill drawn PARTNERSHIP, III. (6), (c), IV. PATENTS, I. 323 by the other, nor on a special count for refusing to accept in the absence of au- thority to disclose the arrangement to third persons. Nicholson v. Ricketts, cv. 497; 2E. & E. 497. (c) Other matters relating to actions between Partners. On a sale of goods to the resident member of a foreign firm, on account of the firm, making out the invoices to him individually and accepting his individual paper, which was afterward proved in bankruptcy, do not prevent recovery against another member of the firm unknown at the time of the contract. Bot- tomley v. Nuttall, xciv. 122 ; 5C.B. N. S. 122. Liability of a person coming into a navy agent partnership for a debt of the old firm, not affected by the fact that the customer did not know him as a part- ner. Scott v. Beale, xcviii. 878 ; 8 C. B. N. S. 878. IV. Bankruptcy. A vesting order, under 11 & 12 Vict. c. 21, s. 5 (India Insolvency Act), pass- ing separate, as well as joint, property of partner, is good, and title of official assignee will be sustained. Brown v. Carberry, cxi. 2 ; 16 C. B. N. S. 2. PARTY WALL. Lessee for ninety-nine years, sub-letting part of premises for more than a year, liable, as adjoining owner, for repairing or rebuilding party wall, under 18 & 19 Vict. c. 122. Hunt v. Harris, cxv. 13 ; 19 C. B. N. S. 13. Qucere, whether the sub-lessees are liable for contribution. Ibid. Liability for repairs to party walls in the United States. Ibid. Ed.'s note. PATENTS. I. Generally. VI. Object and requisites of specifi- H. Property in invention. cation. III. What constitutes novelty and dis- VII. Disclaimer. covery. VIII. What constitutes an infringe- IV. When Patent is too broad. ment. V. Defective description in Patent. IX. Proceedings in action for in- fringement. I. Generally. No warranty in sale that the invention is new or valuable, or that patentee is true and first inventor. Hall v. Conder, lxxxix. 22 ; 2 C. B. N. S. 22. Plea of non concessit puts in issue simply the granting of the patent. Smith v. Neale, lxxxix. 67 ; 2 C. B. N. S. 67. Manufacturing a patent article for sale and offering it, is a user. Oxley v. Holden, xcviii. 666 ; 8 C. B. N. S. 666. Manufacture without sale by the patentee and his servants before the grant, does not invalidate. Betts v. Menzies, cii. 990 ; 1 E. & E. 990. In a suit for infringing letters patent, a replication to a plea of license, thai licensee is restricted from making patented article for sale outside of United Kingdom by a cotemporaneous deed, to which licensee, plaintiff and others were parties, is bad, being a departure at law, and inadmissible on equitable grounds, because defendant could be sued by the others. Schlumberger v. Lister, cv. 870 ; 2 E. k E. 870. Vendees of licensee of patent have power to sell without consent of patentee. Xhomas v. Hunt, cxii. 183 ; 17 C. B. N. S. 183. 324 PATENTS, II., III. II. Property in invention. Assignee cannot recover for breach, under an unregistered assignment. Choi- let v. Hoffman, xc. 686 ; 7 E. & B. 686. Though the objection not specified in notice of objections. Ibid. An assignment of a separate and distinct part of a patent is valid. Dunni- cliff v. Mallet, xcvii. 209 ; 7 C.B. N. S. 209. ' Assignee may sue for infringement, though his right acquired by assignment of two separate moieties. Walton v. Lavater, xcviii. 162 ; 8 C. B. N. S. 162. Licensee of patent, as against licensor, is estopped from disputing novelty or usefulness of invention, or completeness of specifications, if they sufficiently express what was intended. Trotman v. Wood, cxi. 479 ; 16 C. B. N. S. 479. Letters patent do not preclude the crown from the use of the invention, though it has not the assent of the patentee. Feather v. The Queen, cxviii. 257 ; 6 B. & S. 257. III. What constitutes novelty and discovery. Discovery that a particular advantage is gained by the use of a machine known before, in a manner known before, not an invention to sustain patent. Tetley v. Easton, Ixxxix. 706 ; 2 C. B. N. S. 706. As to what is novelty. Ibid. Exhausting from millstone cases the dusty air blown through between the grinding surfaces, being a combination of a blast and exhaust, is the subject of a patent, though both blast and exhaust had been used separately. Bovill v. Keyworth, xc. 725 ; 7 E. & B. 725. Patent for the application of machinery formerly used with cotton and lmen to wool and hair is void. Brook v. Aston, xcii. 478 ; 8 E. & B. 478. Affirmed in Ex. Ch. cii. 1102 ; 1 E. & E. 1102. There may be a patent for a combination though each part old. Lister v. Leather, xcii. 1004 ; 8 E. & B. 1004. An experiment made in the presence of others which becomes profitable in this particular instance is not necessarily a gift of the invention to the world. In re Newall and Elliot, xciii. 269 ; 4 C. B. N. S. 269. The application of a well known tool to work previously untried materials or to produce new forms is not the subject of a patent. Patent Bottle Envelope Co. v. Seymer, xciv. 164 ; 5 C. B. N. S. 164. A bowl and smooth roller, moving with unequal speed, being used in calen- dering fabrics, and a bowl and patterned roller, moving with equal speed, in em- bossing, the combination of a patterned roller and bowl at unequal speeds, is not novel and useful. Ralston v. Smith, xcix. 117 ; 9 C. B. N. S. 117. The manufacture of a very fine thin sheet of lead coated with tin for the pur- pose of making capsules, is not novel if there be a previous patent for the manu- facture of a thicker and coarser, but also a thin combination of lead coated with tin for lining cisterns by a substantially similar process. Betts v. Menzies, cii. 990 ; 1 E. & E. 990. If a newly-granted patent, assuming it to be good, would be infringed by a former patentee, manufacturing an article described in his specification, the new patent is void for want of novelty. Ibid. The application of a known article to use analogous to those to which it had before been applied, is not the subject of a patent, though a cheaper article is produced. Horton v. Mabon, civ. 437 ; 12 C. B. N. S. 437. The application of double angle-iron, a well-known article, to formation of hydraulic cups or joints to telescopic gasholders is not patentable. Ibid. Qucere, whether the application in the construction of a known machine of a material never before used for that purpose is the subject of a patent. Mackel- can v. Rennie, cvi. 52 ; 13 C. B. N. S. 52. The casting in one piece of that which usually had been cast in several, is not the subject of a patent, though useful and beneficial to the public. Ormson v. Clarke, cvi. 337 ; 13 C. B. N. S. 337. Affirmed in Ex. Ch. Ibid. 865. Casting tubular boiler, previously in several pieces, in one, not the subject of a patent, though useful and beneficial to the public. Ormson v. Clarke, cviii. 475 ; 14 C. B.lJ. S. 475. PATENTS, III.— VII. 325 When a party claimed only the application of centrifugal force in particular manner described, held good. Seed v. Higgins. cvii. (H. of L.) 724; 3 B. & E. 724. Mere substitution of double angle iron, an article well-known in the trade for two pieces of single angle iron in formation of hyd* aulic cups to telescopic gas- burner, the latter being subject of general knowledge, not an invention. Hor- ton v. Mabon, cxi. 141 ; 16 0. B. N. S. 141. Affirming civ. 437 ; 12 C. B. N. S. 437. Mere application of old contrivance not entitled to patent. Harwood v. Q. N. Railway Co., H. of L. cxiii. 984 ; 3 B. & S. 984. What is such an application. Ibid. Affirming s. c, Exchequer Chamber, ex. 222; 2 B. & S. 222, and reversing Q. B. ex. 194 ; 2 B. & S. 194. What will not constitute a "new manufacture," within 21 Jac. 1, c. 3. Ral- ston v. Smith, cxv. 818 ; 19 C. B. N. S. 818 ; affirming s. c. in C. P., xcix. 117 ; 9 C. B. N. S. 117, and in Exchequer Chamber, ciii. 471 ; 11 C. B. N. S. 471. In order to make a patent void for want of novelty, because of specifications in a prior patent containing a general description, the practical, mode of produc- ing the same result must have appeared in those specifications. Betts v. Menzies, cxvi. 995 ; 4 B. & S. 995. Reversing s. c, cii. 990 ; 1 E. & E. 990. IV. When Patent is too broad. Claim of metal fittings and the mode of applying them, construed not to be a claim of the fittings separately. Oxley v. Holden, xcviii. 666 : 8 C. B. N. S. 666. V. Defective description in Patent. Description held to be sufficient. Ralston ». Smith, cxv. 818 ; 19 C. B. N.l?>. 818. Reversing s. c. in C. P., xcix. 117 ; 9 C. B. N. S. 117 ; and in Ex. Ch., ciii. 471 ; 11 C. B. N. S. 471. VI. Object and requisites of specification. Sufficient if it would enable a workman of competent skill to construct the machinery though details not given. Bovill v. Keyworth, xc. 725 ; 7 E. & B. 725. The provisional specification should describe generally and fairly the nature of the invention, but need not enter into details. In re Newhall and Elliott, xciii. 269 ; 4 C. B. N. S. 269. Statement in the specification that the invention is "equally applicable" to certain described purposes, held not to be a claim. Oxley v. Holden, xcviii. 666 ; 8 C. B. N. S. 666. The abandonment of a provisional specification does not render subsequent patent void. Ibid. A claim for the application of a shuttle in combination with a needle, as shown in sheet 1, held not to be confined to the application as shown in the sheet but to be a general claim. Thomas v. Foxwell, cii. 1105 ; 1 E. & E. 1105. The provisional specification cannot be prayed in aid to explain the complete specification. Mackelcan v. Rennie, cvi. 52 ; 13 C* B. N. S. 52. When a specification incomplete in itself cannot be made good by a dis- claimer, under 5 & 6 Wm. 4, c. 83. Ralston v. Smith, cxv. 818 : 19 C. B. N. S. 818. In all cases of disputed novelty of patents, where the two specifications contain- ing the same description profess to describe an external thing, the identity of signification must belong to the province of evidence, and not of construction. Betts v. Menzies, cxvi. 995 ; 4 B. & S. 995. _ An antecedent specification is not an anticipation of a subsequent discovery, unless it disclose a practicable mode of producing the result which is the efiect of the subsequent discovery. Ibid. VII. Disclaimer. What remains of the specification cannot be construed by the disclaimer. Tetley v. Easton, lxxxix. 706 ; 2 C. B. N. S. 706. 326 PATENTS, VII— IX. Where the specifications described particularly a machine, and patentee, not confining himself to this particular method, claimed a principle, the effect of a disclaimer of the principle is the same as if the particular method had alone been claimed. Seed v. Higgings, xcii. 755 ; 8 E. & B. 755. A disclaimer cannot turn a specification for an impracticable generality into a grant for a specific process comprised within it. Ralston v. Smith, xcix. 117 ; 9 C. B. N. S. 117. Affirmed in Exchequer Chamber, ciii. 471 ; 11 C. B. N. S. 471. Under 5 & 6 Wm. 4, c. 83, material additions cannot be made to the original specifications by disclaimer, so as to introduce an accurate description of an invention, not in the specification. Ralston v. Smith, cxv. 818 ; 19 C. B. N. S. 818. Affirming s. c. in C. P., xcix. 117 ; 9 C. B. N. S. ] 17 ; and in Ex. Ch., ciii. 471 ; 11 C. B. N. S. 471. VIII. What constitutes an infringement. Patent for a combination, consisting of several parts of one process, is infringed upon by the use of one part, which is new, without the others, for the purpose described in the specification. Bovill v. Keyworth, xc. 725 ; 7 E. & B. 725. Where specification described a machine for the manufacture of envelopes, in which a piece of paper was held on a platform while the flaps were folded, a machine in which the mode of folding was substantially the same, though the paper not held down, might be infringement. De la Rue v. Dickenson, xc. 738 ; 7 E. & B. 738. The specification claiming an apparatus for the application of gum in the manner of surface printing, an apparatus which did not take the gum from an intermediary surface as in surface printing might infringe. Ibid. Where the specifications described particularly a machine, and the patentee not confining himself to this particular method claimed the principle, but after- ward disclaimed the principle, a different machine producing same result by same principle is no infringement. Seed v. Higgings, xcii. 755 ; 8 E. & B. 755. Use of a part may be an infringement of a patent for a combination, if the part be new and useful. Lister v. Leather, xcii. 1004 ; 8 E. & B. 1004. The substitution of a cylinder for a cone in an apparatus used for the same purpose, and in nearly the same manner, is evidence of infringement. In re Newall and Elliott, xciii. 269 ; 4 C. B. N. S. 269. A patent for the use of hydrate of lim« for precipitation is not infringed by its use for deodorizing though some precipitation result, if the precipitate be rejected. Higgs v. Goodwin, xcvi. 529 ; E., B. & E. 529. Sale of an article imported from abroad which is covered by a patent, is an in- fringement. Walton v. Lavater, xcviii. 162 ; 8 C. B. N. S. 162. Machine using '' a weight" not infringed by similar machine using weight as a force. Seed v. Higgins, cvii. (H. of L.) 724 ; 3 E. & E. 724. Whether it is infringement or not, is for the court. Ibid. What not such a new contrivance as to make other parties liable for infringe- ment. Harwood v. G. N. Railway Co., H. of L., cxiii. 984 ; 3 B. & S. 984. affirming s. c. in Ex. Ch., ex. 222; 2 B. & S. 222 ; and reversing Q. B., ex. 194; 2 B. & S. 194. . Spiral grooves on roller, when an infringement of circular grooves. Ralston v. Smith, cxv. 818; 19 C. B. N. S. 818 (reversing s. c. in C. P., xcix. 117 ; 9 C. B. N. S. 117; and in Ex. Ch., ciii. 471 ; 11 C. B. K. S. 471). Where description is the same, but there is nothing to disclose that the result is the same, it is no infringement. Betts v. Menzies, cxvi. 995 ; 4 B. & S. 995. IX. Proceeding in action for infringement. If the evidence has a tendency to show that defendant has used substantially the same means to obtain the same results as specified by plaintiff, it is a ques- tion of fact for the jury. De la Rue v. Dickenson, xc. 738 ; 7 E. & B. 738. Where, on a question of novelty, the judge left it to the jury to say whether a person of ordinary skill could, from specifications^in a prior patent, make the article claimed in plaintiff's patent, a new trial was granted. Betts v. Menzies, xcii. 923 ; 8 E. & B. 923. PATENTS, IX. PAWNBROKER. 327 An assignment of a separate and distinct part of a patent is valid, and the assignee may sue alone for an infringement of that part. Dunnicliff v. Mallet, xevii. 209 ; 7 C. B. N. S. 209. A patentee who has sold his right is estopped from alleging want of novelty, in a suit by the assignee against him for infringement. Walton »>. Lavater, xcviii. 162; 8 C.B.N. S. 162. A clause in the. particulars of breaches stating that they were given only as examples, and not to preclude proof of infringement mentioned in former par- ticulars, was stricken out. Type Founding Co. v. Richards, xcviii. 893 : 8 C. B. N. S.893. Plaintiff having abandoned, before trial, an action for infringement of a patent, defendant is entitled to his costs for particulars of objection. Greaves v. E. C. Railway Co., cii. 961 ; 1 E. & B. 961. Aliter, as to costs of a special jury. Ibid. Whether a machine, or a material part of it, is an infringement, is a mixed question of law and fact. Seed v. Higgins, cvii. 724 ; 3 E. & E. 724. If it is simply a question of construction of the specification, it is a question of law for the judge. Ibid. In action for infringement of patent, under 15 & 16 Vict. c. 83, s. 43, where there is certificate of judge in former action, that validity of patent came in question, and it is given in evidence, plaintiff entitled to full costs, unless the judge otherwise certify. Bovill v. Hadley, cxii. 435 ; 17 C. B. N. S. 435. Aliter, where the suit is compromised without giving certificate in evidence. Ibid. It is no defence to an action by assignee of patent for infringement, that pro- bate was not registered until after assignment by executors. Elwood v. Christy, cxii. 754 ; 17 C. B. N. S. 754. Qucere, whether action would be good if brought before registration of pro- bate. Ibid. In action for infringement of patent, where evidence has been adduced to show prior discovery by A., and on cross-examination witness testifies that the article was sold by A. to B., plaintiff cannot prove declarations of A. at the time. Hyde v. Palmer, cxiii. 657 ; 3 B. & S. 657. In an account by the master, under 15 & 16 Vict. c. 83, s. 42, damages are confined to the profits actually made by the defendant. Elwood v. Christy, cxiv. 494 ; 18 C. B. N. S. 494. Quaere, to what extent damages can be given by jury for infringement. Ibid PAWNBROKER. Under 39 & 40 Geo. 3, c. 99, s. 34, a pawnbroker is not responsible for loss to goods from an accidental fire. Syred v. Carruthers, xcvi. 469 ; E., B. & E. 469. A common informer may lay an information, under 39 & 40 Geo. 3, c. 99, and recover half the penalty. Caswell v. Morgan, cii. 809 ; 1 E. & E. 809. Magistrates cannot order a pawnbroker to deliver up goods or compensate the owner, under 40 Geo. 3, c. 99, s. 14, when they have been lost by a burglary caused by his neglect ; but they can award compensation to owner, under sect. 24 of same act. Shackell v. West, cv. 326 ; 2 E. & E. 326. 328 PAYMENT. PAYMENT. Assignee of bill of lading not bound to pay freight until whole cargo delivered. Moeller v. Young, lxxxv. 7, 755 ; 5 E. & E. 7, 755. Where charter-party for voyage from Sundswall, a Baltic port, to Southampton, provided that the nighest freight (not less than 90s.) should be paid, which the owner could prove had been paid for same voyage : held that owner not entitled to more than 90s., by showing higher rate paid for voyage to London. Gether v. Capper, lxxxvi. 866 ; 18 C. B. 866. Agreement that contractor should receive, every fourteen days, amount certified by architect, in certain proportions less than value of work, until ninety per cent, of whole completed, and no further payments to be made until three months after achitect certified completion of work to his satisfaction': held that certificate of completion not mentioning amount due, sufficient. Pashby v. Mayor of Bir- mingham, lxxxvi. 2 ; 18 C. B. 2. Agreement to pay in such manner as should be mutually agreed on, may be recovered upon, if defendant refuses to agree as to the manner. Hall v. Conder, lxxxix. 22 ; 2 C. B. N. S. 22. Semble, that if no mode agreed upon, the money would be payable as if there were no stipulation. Ibid. In an action by a landlord against a tenant, the landlord being also trustee for the tenant with respect to the rent, evidence that the landlord permitted him to receive the rent from the under-tenants, saying he might as well keep it, does not amount to payment. Dollen v. Batt, xciii. 760 ; 4 C. B. N. S. 760. Where defendant gave plaintiff liberty to use his patent right in advertising the sale of plaintiff's works, on condition of receiving, in the event of sale, a certain sum, the amount did not become due unless the works and patent were sold together. Pelly v. Sidney, xciv. 678 ; 5 C. B. N. S. 678. Where two life assurance companies, in the course of business, reassured each other, and as any premium became due from one the other receipted for it, and the accounts were periodically settled : held that the premium was paid at the time of the receipt given. Prince of Wales Assurance Co. v. Harding, xcvi. 183 ; E., B. & E. 183. Agreement to pay 500Z. out of the first moneys received under a certain contract, and out of any further moneys ten per cent., does not mean that the percent- age shall be paid upon a balance over 500Z. in the first moneys received. Coch- rane v. Green, xcix. 448 ; 9 C. B. N. S. 448. Where vendor to be paid in instalments, and, until balance paid, to have a lien, and in case of default to be entitled to dispose of or remove, he retains the title. .Walker v. Clyde, c. 381 ; 10 C. B. N. S. 381. Evidence of a custom that the buyer may elect to take timber in bond and pay the duty himself, is admissible, and it applies though announcement of a reduc- tion in duty be made in parliament on the day of the contract. Clark i\ Small- field, ci. 985 ; 1 B. & S. 985. The banker having put the money for a check on the counter, and the payee taken it up, the payment is complete, though the counting not finished. Cham- bers v. Miller, cvi. 125 ; 13 C. B. N. S. 125. Half of a severed bank note, not followed by second half, is an inchoate and conditional payment, and therefore revocable. Smith v. Mundy, cvii. 22 ; 3 E. & E. 22. Where check was issued by a third party, upon a condition to be performed by payee, but of which holder was not informed, money had and received will not lie by drawer against holder who had obtained payment. Watson v. Russell, cxiii. 34 ; 3 B. & S. 34. In such case there is no privity of contract. Ibid. Plea alleging payment of part, and that the balance had been placed in hands of another, by agreement, to await adjustment of differences, is good as a plea of payment. Page u. Meek, cxiii. 259 ; 3 B. & S. 259. Circumstances under which a general payment will be appropriated to the PAYMENT. PENALTY. 329 payment of a rate, so as to entitle the person paying to be placed on the list of voters. Powell v. Jones, cxiv. 83 ; 18 C. B. N. S. 83. Note on the subject of payment by the editor. Ibid. No title will pass, when goods are to be paid for before delivery, until perform- ance of condition. Moakes v. Nicolson, cxv. 290; 19 C. B. N. S. 290. PENALTY. In suit by borough corporation against informer, who had recovered penalty, half of which belonged to him, half to corporation after deducting costs and ex- penses, burden of proving expenses falls on defendant. Mayor of Harwich v. Grant, lxxxv. 182 ; 5 E. & B. 182. Assistant clerk of county court is an officer liable to penalty, under 9 & 10 Vict. c. 95. Ackroyd v. Gill, lxxxv. 808 ; 5 E. & B. 808. Master of a ship not liable to penalty, under s. 50, of 17 & 18 Vict. c. 104, for refusing to deliver certificate of registry to the owner on an arbitrary demand. Arkle v. Henzell, xcii. 828 ; 8 E. & B. 828. Using the pike for eighty-six yards and then turning off to avoid the tolls, does not render a man liable to the penalty, under 3 Geo. 4, c. 126, s. 41. Veitch v. Trustees of Exeter Roads, xcii. 986 ; 8 E. & B. 986. Distinct users cannot be tacked together to make the hundred yards. Ibid. Where a candidate told his agent, that it was legal to pay the travelling ex- penses of voters and thereupon the agent, by circular, requested a voter to vote for the candidate, adding that the railroad expenses would be paid and the voter did so, receiving his expenses, it was held evidence of bribery and corrupt payment of money, under 17 & 18 Vict. c. 102, s. 2. Cooper v. Slade, xcii. 1151 ; 8E. &B. 1151. But one penalty could be recovered. Ibid. Where a charter-party provided for a penalty in case of unnecessary delay during the voyage, it was held not to apply to a delay occurring before the ship left the terminus a quo. Valente v. Gibbs, xcv. 270 ; 6 C. B. H. S. 270. The servant of a tenant having permission to sport over the farm, being autho- rized to shoot a rabbit for his, the tenant's, wife, is not therefor liable to a pen- alty, under s. 30 of 1 & 2 Wm. 4, c. 32. Padwick v. King, xcvii. 88 ; 7 C. B. N. S. 88. Penalty fixed by a written contract if work not completed at a certain time, is waived by a subsequent parol agreement, which the parties knew would prevent completion on the day named. Thornhill v. Neats, xcviii. 831 ; 8 C. B. N. S. 831. Where a by-law, in pursuance of a railway act, provides that each passenger shall show and deliver up his ticket when required, under a penalty, an annual passenger, refusing to produce his ticket, is liable. Woodard v. E. C. Railway Co., ci. 977 ; 1B.JS. 977, A common informer may lay an information, under 39 & 40 Geo. 3, c. 99, against a pawnbroker, and recover half the penalty. Caswell v. Morgan, cii. 809 ; 1 E. & E. 809. Act 10 & 11 Vict. c. 15, repeals 10 Geo. 4, c. 73, to extent of giving penalty, for suffering impure water to flow into any stream, to owner of the water fouled, instead of to informer. Parry v. Croydon Com. Gas Co., ciii. 580; 11 C. B. N. & 580. The owner of a warehouse is liable to penalty of 17 Geo. 3, c. 56, when pur- loined or embezzled goods are found in his warehouse, and their presence not satisfactorily explained. Regina v. Edmunson, cv. 77 ; 2 E. & E. 77. The owner of a mine, which is being worked, who intermits all work, includ- ing its ventilation, on Sunday, is liable under 18 & 19 Vict. c. 108, for failure to keep it ventilated on that day. Knowles v. Dickinson, cv. 705 ; 2 E. & E. 705. Where a contractor undertakes under a penalty to perform a work within a given time, and performance within that time is prevented by the other party, SSO PENALTY. PENSION. PETITION OF EIGHT. the contractor ia exonerated. Russell v. DaBandeira, cvi. 149 ; 13 C. B. N. S. 149. Lighterman liable to, under 22 & 23 Vict. c. 128, s. 54, though a "western barge," within 7 & 8 Geo. 4, c. 175, s. 101. Doick v. Phelps, cvii. 244 ; 3 E. & E. 244. Later statute in that respect a repeal of former. Ibid. A bailiff or superintendent not a servant of husbandry, within 4 Geo. 4, c. 34, s. 3. Davies v. Lord Berwick, ovii. 549 ; 3 E. & E. 549. Hence not liable to penalty for refusing to do work required of him. Ibid. Especially if the work is outside of his line of duties. Ibid. Gas company chartered under act in which provisions of 10 Vict. c. 15, im- posing penalties for fouling streams, are incorporated, not liable to penalties un- der local act imposing similar penalties. Parry v. Croydon Gas Co., cix. 568 ; 15 C. B. N. S. 568. Affirming ciii. 580 ; 11 C. B. N. S. 580. . As to a company so chartered, the general act repeals local act. Ibid. Penalty for manufacturing fog signals, under 23 & 24 Vict. u. 139. Bliss v. Lilley, cxiii. 128 ; 3 B. & S. 128. What not "wheeled carriage,'' under Turnpike Act, 3 Geo. 4, c. 126, s. 121, so as to subject to penalty. Radnorshire C. R. Board v. Evans, cxiii. 400 ; 3 B. & S. 400. A neglect to register the assignment of a right of representation of a play, does not prevent proceeding for the recovery of penalty for violation of copyright, under 3 & 4 Wm. 4, c. 15. Marsh v. Conquest, cxii. 418 ; 17 C. B. N. S. 418 ; Lacy v. Rhys, cxvi. 873 ; 4 B. & S. 873. What will subject to penalty for performing " stage play" without a license, under 6 & 7 Vict. c. 68. Day v. Simpson, cxiv. 680 ; 18 C. B. N. S. 680. A farmer is not a laborer within 29 Car. 2, c. 7, s. 1 (prohibiting work on Sunday), and is not liable to the penalty in the act. Regina v. Cleworth, cxvi. 927 ; 4 B. & S. 927. It would seem that one employed by the farmer would be. Ibid. "Whether haymaking is a work of necessity, within the meaning of the act, is a question of fact for the justices. Ibid. PENSION. A superannuation allowance, under 2 & 3 Vict. c. 47, ss. 22, 23, revocable at pleasure of secretary of state. Regina v. Receiver, cxvi. 593 ; 4 B. & S. 593. PETITION OP RIGHT. Crown can demur and plead to, at same time. Tobin v. The Queen, cviii. 505 ; 14 C. B. N. S. 505. And put in issue all the allegations in petition by general traverse. Ibid. Will not lie for claim for unliquidated damages for a trespass. Tobin v. The Queen, cxi. 310; 16 C. B. N. S. 310. Not where the wrong has been committed by an officer in the supposed per- formance of a duty imposed by law. Ibid. Not where the act was not within the scope of the officer's duty. Ibid. Not generally for any wrong committed by officers of the crown. Ibid. Does not lie against the crown in the case of an alleged wrong. Feather v. The Queen, cxviii. 257 ; 6 B. & S. 257. PHYSICIANS. PILOT. PLEADING, I. 331 PHYSICIANS. General counoil has power to strike name of medical practitioner from regis- ter, where entry is fraudulently and incorrectly made, under 21 & 22 Vict. c. 90. Reeina v. General Council, cvii. 525 ; 3 E. & E. 525. Under 29th sect., medical practitioner amenable to jurisdiction of council after registration. Ibid. PILOT. Master piloting his own vessel carrying passengers is exempt from compulsory pilotage within the provisions of 6 Geo. 4, c. 125, s. 59. Reginau. Stanton, xcii. 445 ; 8 E. & B. 445. Under 17 & 18 Vict. c. 104, s. 352, a pilot is compelled to surrender his license to the pilotage authority when required, though it act arbitrarily. Henry v. Newcastle Trinity House Board, xcii. 723 ; 8 E. & B. 723. The charter of the Trinity House of Leith, 37 Geo. 3, 1797, and 1 Geo. 4, c. 37, s. 32, confirming it, limit its authority to license pilots to the coaBt of Scot- land. Hossack v. Gray, cxviii. 598 ; 6 B. & S. 598. Dubitatur, that a master may be licensed to pilot his own ship. Ibid. PLEADING. I. Parties to the action. II. Material allegations. (a) Immaterial issue. (6) Traverse must not be too broad, (c) Traverse must not be too narrow. IH. Duplicity in Pleading. IV. Ambiguity in Pleading. V. Departure. VI. Special Pleas amounting to gen- eral issue. VII. Surplusage. VIH. Argumentativeness. IX. Other miscellaneous rules. X. Of the declaration. (a) Joinder of counts. (&) Statement of cause of ac- tion. Under Common Law Pro- cedure Acts. New assignment. Of profert and oyer. XI. Of Pleas. (a) Generally. (&) Pleas to jurisdiction. (d) (£) (c) Plea to further mainte- nance of action. (d) Under Common Law Pro- cedure Acts. (e) Plea of payment. \f) Of certain special Pleas. (g) Of certain miscellaneous rules relating to Pleas. (h) Of issuable Pleas, i (i) Plea of not guilty. (k) Several Pleas. (I) Plea of performance. XII. The replication. XIII. The rejoinder. XIV. Demurrer. XV. Issue. XVI. Amendment. (a) Amendment of mesne pro- cess. (&) Amendment of declaration and other Pleadings. (c) Amendment of judgment. (d) Amendment after non-suit or verdict. (e) Amendment after error. (/) Amendmen t in other cases. I. Parties to the action. Where a bank pledgee was sued in trover, the court ordered the pledgor to be substituted as defendant. Roberts v. Bell, xc. 323 ; 7 E. & B. 323. 23 & 24 Vict. c. 126, s. 19, does not authorize the joinder of several persons in a declaration on a contract, the right to sue upon which has come to one of them by survivorship. Bellingham v. Clark, ci. 332 ; 1 B. & S. 332. 3S2 PLEADING. II. (a), (6), (c)— V. II. Material allegations. To a declaration on a deed conveying an exclusive license to use a patent, a plea that the invention was worthless, and that at the time of the making of the deed the plaintiff knew it and the defendant did not, is bad. Smith v. Scott, xcv. 771 ; 6 C. B. N. S. 771. (a) Immaterial issue. To a declaration charging that A. drew a hill to his own order, endorsed it to defendant, who endorsed it to plaintiff, and that bill dishonored, plea denying endorsement to defendant is bad. Macgregor v. Rhodes, lxxxviii. 266 ; 6 E. & B. 266. Plea to an averment of damages is bad. Reindel v. Schell, xciii. 97 ; 4 C. B. N. S. 97. A plea to an action against a carrier for negligent and careless stowage, that the goods were stowed as they were by direction and license of plaintiff, is bad. Hutchinson v. Guion, xciv. 149 ; 5 C. B. N. S. 149. (6) Traverse must not be too broad. To a count for carelessly working mines, a plea that the lord of the manor was seized in fee of the mines in the manor and for forty years had been used to work them without leaving support and justifying as tenant to the lord, bad as not showing acts done on the plaintiff's lands. Blackett v. Bradley, ci. 940; 1 B. & S. 940. (c) Traverse must not be too narrow. Plea that it was agreed that a certain sum was the balance due on annual accountings and that this sum was paid, is insufficient. Perry v. Attwood, lxxxviii. 691 ; 6 E. & B. 691. Two insufficient pleas cannot be used to help each other. Day v. Hemings, ci. 993 ; 1 B. & S. 993. How far a plea in bar of a composition deed, under 24 & 25 Vict. c. 134, in an action by a non-assenting creditor, should set out the deed. Whitehead r. Porter, cxvii. 193 ; 5 B. & S. 193. Plea that a certain conviction, the subject of the alleged libel, was in force at the time of the statement need not show that it was in force at the time of the plea. Alexander v. N. E. Railway Co., cxviii. 340 ; 6 B. & S. 340. III. Duplicity in Pleading. Where, in a case of misdemeanor with a plea of not guilty, after trial com- menced the court discharged the jury because of refusal of a witness to testify, a plea puis darrein continuance, setting forth these facts, was refused. Kegina v. Charlesworth, ci. 460 ; 1 B. & S. 460. Crown can plead and demur at same time to petition of right. Tobin v. The, G;ueen, cviii. 505 ; 14 C. B. N. S. 505. IV. Ambiguity in Pleading. Plea will be construed reasonably and if ambiguous most strongly against party pleading. Goldham v. Edwards, lxxxvi. 389 ; 18 C. B. 389. V. Departure. Declaration for goods sold and delivered and plea of infancy, replication that defendant fraudulently represented himself to be of full age is a departure. Bartlett v. Wells, ci. 836 ; 1 B. & S. 836. In a suit for infringing letters patent, a replication to a plea of a license, that by a contemporaneous deed licensee is restricted from making patented article for sale outside of the united kingdom is a departure and bad. Schlumberger v. Lister, cv. 870 ; 2 E. & E. 870. A departure in pleading is ground for general demurrer. Brine v. G. W. Rail- way Co., ex. 402 ; 2 B. & S. 402. Where narr. sets up damage by reason of embankment to plea of authority of acts of parliament, replication that works were negligently erected, is no departure. Ibid. PLEADING, V.— X. (a), (6). 333 The test seems to be, whether the title alleged is inconsistent with narr. or whether there would be a variance in the evidence. Ibid. VI. Special Pleas amounting to general issue. To an action for disturbance of a ferry, a plea showing that a new state of things had arisen to which the right was not applicable is bad. Newton v. Cubitt, xciv. 627 ; 5 C. B. N. S. 627. VII. Surplusage. In an action for infringement of patent, a clause in the particulars of breaches stating that they were given only as examples, and were not to preclude proof of infringement mentioned in former particulars, was stricken out. Type Founding Co. v. Richards, xcviii. 893 ; 8 C. B. N. S. 893. VIII. Argumentativeness. "Where a plea instead of averring or denying a material fact, sets out the evi- dence, unless the evidence set out conclusively established the fact averred or denied, the plea is bad : per Willes, J. Neville v. Kelly, civ. 740 ; 12 C. B. N. S. 740. IX. Other miscellaneous rules. Where plea bad and replication bad judgment for plaintiff. Lockwood v Nash, lxxxvi. 536 ; 18 C. B. 536. A plea traversing the effect of defendant's deed, is bad. Smith v Scott xcv 771 ; 6 C. B. N. S. 771. _ A defendant who has in a former action on same contract between same parties suffered judgment by default is not thereby precluded from setting up a defence by way of confession and avoidance which he could before have pleaded in bar Howlett v. Tarte, c. 813 ; 10 C. B. N. S. 813. X. Of the declaration. (a) Joinder of counts. Under rules 1 & 2 of Hil. Term 1853 (lxxvi. 87 ; 13 C. B. 87), a count in detinue and a count in trover cannot be joined without leave obtained from ajud . Plea of discharge by Insolvent Court of colonies for debt contracted there, is good in bar. Gardiner v. Houghton, ex. 743 ; 2 B. & S. 743. Deed under 24 & 25 Vict. c. 134, s. 200, and schedule D. (Bankruptcy Act 1861), not pleadable in bar to an action by a creditor signing it. Eyre v. Archer, cxi. 638 ; 16 C. B. N. S. 638. _ In action for damages for seizure of goods plea of judgment in replevin is good as a plea in bar. Pease v. Chaytor, cxiii. 620 ; 3 B. & S. 620 ; s. c. ci. 658 ; 1 B. & S. 658. Facts decided in proceeding in Prize Court cannot be pleaded in estoppel. Hobbs v. Henning, cxii. 791 ; 17 C. B. N. S. 791. In a suit by principal for goods sold and delivered by agent without disclosing the name of his principal, plea of set-off against the agent held bad for not aver- ring that defendant did not know, and had not the means of knowing, that he was acting as agent merely. Semenza v. Brinsley, cxiv. 467 ; 18 C. B. N. S. 467. An averment that defendant did not know he was acting as agent for plaintiff not sufficient. Ibid. Plea to an action on the acceptance of a bill that the plaintiff endorsed it to A., who brought a suit against defendant still pending, and that plaintiff became the holder after maturity without consideration and with notice of the prior action, is bad. Deuters v. Townsend, cxvii. 613 ; 5 B. & S. 613. (g) Or CERTAIN MISCELLANEOUS RULES RELATING TO PlEAS. Not a good equitable plea unless court would grant a perpetual and uncondi- tional injunction. Wood v. Copper Miners Co., lxxxiv. 561 ; 17 C. B. 561. Plea answering four counts and bad as to two, is bad altogether. Chappell v. Davidson, Ixxxvi. 194 ; 18 C. B. 194. When a statute forbade calls on the subscribers to a company while it was PLEADING, XI. (g), (K), (i), (i), (0, XII. 339 provisionally registered, but where by construction such prohibition was held not to apply to a call for preliminary expenses, a plea that the call sued for is for- bidden by statute, is bad, unless it avers that the call is not for preliminary ex- penses. Aldham v. Brown, cv. 398 ; 2 E. & E. 398. Affirming s. c, xc. 164 ; 7 E. & B. 164. Where a statute forbids calls generally, but some calls are lawful under it, a plea is bad which does not show that the call sued on is forbidden. Ibid. Plea in detinue by devisee for title deeds, which had been intrusted to defend- ant by devisor, that they were lost before death of devisor and had not since been in defendant's possession, is bad, per Wightman, J. Goodman v. Boycott, ex. 1; 2B. & S. 1. Bat, contra, per Blackburn, J., although as against devisor it would be bad. Ibid. A plea of fraud not allowed to be filed at time of trial. Speeding v. Young, cxi. 824 ; 16 C. B. N. S. 824. In an action for anything done by judge's order, under 12 & 13 Vict. c. 106 (Bankruptcy), by s. 159, defendant can plead general issue and give special mat- ter in evidence. Fielding v. Lee, exiv. 499 ; 18 C. B. N. S. 499. (h) Of issuable Pleas.' Qacere, whether plea that contract made in France and plaintiff's claim attached by creditor there, is issuable. Simian v. Miller, lxxxvii. 686 ; 1 C. B. N. S. 686. Obtaining leave to reply and demur* does not preclude objection to a plea not issuable. Ibid. (i) Plea op not guiltt. In an action for debauching plaintiff's wife, plea of ''not guilty" does not put the marriage in issue. Kenrick v. Horder, xe. 628 ; 7 E. & B. 628. " Not guilty" in case merely puts in issue the fact of the performance of the duty as alleged. Roberts v. Great Western Railway Co., xciii. 506 ; 4 C. B. N. S. 506. " Not guilty'' puts in issue the wrongfulness of the act. Wallinger v. Gurney, ciii. 182 ; 11 C. B. N. S. 182. (k) Several Pleas. In action for trespass against several, each was allowed to plead several pleas, setting up a right of common in himself as well as the others, authority being given by each to the other. Church v. Wright, cix. 750 ; 15 C. B. N. S. 750. (I) Plea or performance. Where plea sets up not a want of readiness and willingness to deliver the article as alleged in declaration contracted for, but the fact that the article offered was deficient in some quality it ought to have possessed, which by agree- ment of parties was not introduced into writtten contract, it is bad. Borrow- man v. Rossel, cxi. 53 ; 16 C. B. N. S. 58. XII. The replication. To declaration on mutual insurance policy, which provided that no mortgagee should recover for loss unless previously he gave to secretary undertaking in writing to pay all sums thereafter to become due, it was pleaded that ship was mortgaged and no such written undertaking had been made. Replication that defendant had notice of mortgage and received from mortgagee all sums wb.ich became due, held insufficient. Hughes v. Tindall, lxxxvi. 98; 18 C. B. 98. To a plea setting forth an agreement between plaintiff and a third person, which had been fully performed, a replication on equitable grounds of mistake in the agreement, is good. Vorley v. Barrett, lxxxvii. 225 ; 1 C. B. N. S. 225. To plea that there was no consideration for the acceptance of bill sued upon, except the surrender by plaintiff of another bill bearing defendant's acceptance, which was a forgery, plaintiff replied that he being lawful holder for value of the forged bill, gave notice of dishonor to the maker and endorser, that defendant inspected it and gave no notice of forgery for thirty days, held that the question raised was whether plaintiff was holder of forged bill for value. Mather v. Maid- stone, lxxxvii. 273 ; 1 C. B. N. S. 273. 340 PLEADING, XII.— XVI. (a). Where there was count by husband for money had and received, plea that money was bequeathed to wife for her sole and separate use and by her assigned upon trusts in which husband took no interest, replication that before this assign- ment she had assigned it to plaintiff and that the receipt of it by the defendant, the trustee, was as her agent for this purpose, is good on equitable grounds. Slo- per v. Cottrell, lxxxviii. 497 ; 6 E. & B. 497. To a plea of an agreement that a certain sum was the balance due, and that this sum was paid, a replication that by mistake the account was incorrect, is good. Perry v. Attwood, lxxxviii. 691 ; 6 E. & B. 691. To a plea of tender, where count was indebitatus assumpsit, a replication that the said sum was not sufficient to satisfy the claim in respect of the matter to which the plea was pleaded, is bad. Smith v. Manners, xciv. 632 ; 5 C. B. N. S. 632. To a plea of release by plaintiff, a replication on equitable grounds, that before the release the subject-matter was transferred to S., with notice to the defendant that the release was made in fraud of S., and that the suit is brought on behalf of S., without interest in the plaintiff, is good, under Common Law Procedure Act 1854. De Pothonier v. De Mattos, xcvi. 461 ; E., B. & E. 461. To a plea of satisfaction by money and securities, a replication on equitable grounds that the securities were received on the faith of defendant's statement that they were valid, but that in fact they were void, is good. Stears v. South Essex Gaslight Co., xcix. 180 ; 9 C. B. N. S. 180. Replication to a plea of infancy, that defendant fraudulently represented him- self to be of full age, is not good in law 6r on equitable grounds. Bartlett v. Wells, ci. 836 ; 1 S. & S. 836. A replication to a plea of infancy, in an action ex contractu, that the defend- ant contracted the debt by a false representation that he was of full age, is a de- parture, and bad. De Roo v. Foster, civ. 272; 12 C. B. N. S. 272. A replication to a plea of set-off of a judgment, that prior to obtaining of judg- ment plaintiff had assigned the claim sued on with notice to defendant, and that he had sued as trustee for such assignee, is bad. Watkins v. Clark, civ. 277 ; 12 C. B. N. S. 277. Replication alleging unreasoaableness of condition in proviso of contract, if latter be clear, is bad. Stadhard xj. Lee, cxiii. 364 ; 3 B. & S. 364. The replication in this case stopping short of alleging mala fides in the defend- ant, it was no answer to a plea alleging breach of condition in proviso. Ibid. Replication in estoppel not allowed where the matter is admissible in evidence under a plea traversing endorsement. Phillips v. Im Thurm, cxiv. 400 ; 18 C. B. N. S. 400. XIII. The rejoinder. Where count for money had and received, plea tender of certain sum, replica- tion that demand was an entire contract for a larger amount than the tender, and rejoinder set-off reducing amount to tender, held, rejoinder was bad. Searies v. Sadgrave, lxxxv. 639 ; 5 E. & B. 639. XIV. Demurrer. Where there are demurrers on both sides, counsel for plaintiff begins. Barker v. Midland Railway Co., lxxxvi. 46 ; 18 C. B. 46. XV. Issue. The issue on a multifarious plea is whether either of the defences set up is true. Reynolds v. Harris, xci. 267 ; 3 C . B. N. S. 267. Vide xciv. 872 ; 5 C. B. N. S. 872. XVI. Amendment. (a) Amendment of mesne process. Writ and copy may be amended, where name of maker of note had been omit- ted in proceedings under Bills of Exchange Act, 18 & 19 Vict. c. 67. Knight v. Pocock, lxxxiv. 177 ; 17 C. B. 177. Writ issued under Bills of Exchange Act, 18 & 19 Vict. c. 67, in a case not PLEADING, XVI. (a), (6), (e), (d), (e). 341 within it, amended under Common Law Procedure Act. Leigh v. Baker, Ixxxix. 367 ; 2 C. B. N. S. 367. Mistake in name of defendant in a summons may be corrected before service without changing teste. Gibson v. Varley, xc. 49 : 7 E. & B. 49. On an affiliation summons, an order drawn as if there was a contest, when in fact defendant was served, but did not appear, may be amended. Regina v. Higham, xc. 557 ; 7 E. & B. 557. The residence of the applicant not being shown, but being assumed at the hear- ing, the order may be amended accordingly. Ibid. Court has no jurisdiction to amend a writ by sealing it as of the day it was issued, where the omission was the fault of the attorney and not of the officer. Nazer v. Wade, ci. 728 ; 1 B. & S. 728. Amendment of judgment summons under 15 & 16 Vict. c. 72, not allowed by insertion of the name of the husband of plaintiff, who had married her since judgment. Regina v. Pearce, cxiii. 531 ; 3 B. & S. 531. (6) Amendment of declaration and other Pleadings. Where some pleas bad, others good, and plaintiff signed judgment, it was opened and defendant permitted to amend. Roberts v. Brett, lxxxiv. 534 ; 17 C. B. 534. Amendment of declaration so as to raise real question, permitted at trial. Tennyson ». O'Brien, lxxxv. 497 ; 5 E. & B. 497. Where in trespass quare clausum Jregit it appeared that plaintiff's land was in possession of a tenant, amendment turning count into one for injury to reversion permitted. May v. Eootner, lxxxv. 505 ; 5 E. & B. 505. Where leave is granted to amend one of two pleas there cannot be judgment on the other. Pianciani v. L. & S. W. Railway Co., lxxxvi. 226 ; 18 C. B. 226. Amendment of a count to correct blunder not varying the real terms allowed without terms. St. Losky v. Green, xcix. 370 ; 9 C. B. N. S. 370. The power of amendment, under 16 & 17 Vict. c. 97, does not extend to chang- ing an order on " churchwardens and overseers" to one on " guardians of the poor," parties not before the court. Regina v. Liverpool, cv. 687 ; 2 E. & E. 687. No amendment of pleadings will be allowed after submission of case to arbi- tration where the order of reference contains no such power. Smurthwaite v. Richardson, cix. 463 ; 15 C. B. N. S. 463. Amendment of declaration in suit by creditor against sureties on administration bond, under 20 & 21 Vict. c. 77, so as to make it for benefit of all interested, allowed after argument on demurrer. Sandrey v. Michell, cxiii. 405 ; 3 B. & S. 405. Declaration when good and when amendable, under s. 222 of Common Law Procedure Act. Cater v. Wood, cxv. 286 ; 19 C. B. N. S. 286. (c) Amendment of judgment. In suit against seven, one of whom had suffered judgment by default, record may be amended by striking out the names of others. Johnson v. Goslett, lxxxvi. 728 ; 18 C. B. 728. (d) Amendment after nonsuit or verdict. Court of their own motion amended plea so as to make issue that which was tried before the jury. Parsons v. Alexander, lxxxv. 263 ; 5 E. & B. 263. Amendment striking out name of one of two defendants, refused after ver- dict. Wickens v. Steel, Ixxxix. 488 ; 2 C. B. N. S. 488. When narr. omitted to state subsequent promise to pay, showing waiver of notice of dishonor of bill of exchange, amendment, after verdict, allowed of course. Cordery v. Colvin, cviii. 374 ; 14 C. B. N. S. 374. (e) Amendment after error. Qucere, whether a special case can be amended without consent, after judgment and writ of error. Notman ». Anchor Assurance Co., xcv. 536 ; 6 C. B. N. S. 536. Where proceedings in error by infant defendant, on the ground that he had appeared by attorney, the court cannot amend by alleging appearance by guar- 342 PLEADING, XVI. (e), (/). PLEDGE. dian, but may set aside proceedings and order such appearance. Carr v. Cooper, ci. 230; IB. &S. 230. It seems, the Court of Q. B. on appeal has power, under 20 & 21 Vict. c. 43, s. 6, to amend order of magistrate, made under 40 Geo. 3, c. 99. Shackell v. "West, cv. 326 ; 2 E. & E. 326. Judgment against executor amended after error, so as to make it de bonis tes- tatoris. Gorton v. Gregory, cxiii, 90 ; 3 B. & S. 90. (f) Amendment in other cases. Application to send back for amendment a case stated on appeal from justices may be made before argument. Yorkshire Tire and Axle Co. v. • Rotherham Board of Health, xciii. 362 ; 4 C. B. N. S. 362. An order for the payment of the expenses of the removal of a pauper, omitting to state the locality in which the justices sat, amended without costs. Regina v. Hellingley, cii. 749 ; 1 E. & E. 749. In a suit against a husband for prico of goods sold wife before marriage, an amendment at trial of writ and declaration joining wife is not competent under Common Law Procedure Act 1852. Garrard v. Guibelei, ciii. 616 ; 11 C. B. N. S. 616. Affirmed in Ex. Ch., cvi. 832; 13 C. B. N. S. 832. An arbitrator haying awarded plaintiff less than 201., but by mistake having omitted the certificate that it was proper to be tried in a superior court, the mat- ter was sent back for amendment. Cross v. Cross, cvi. 253 ; 13 C. B. N. S. 253. Amendment of case stated as to conviction by magistrates, under 20 & 21 Vict. c. 43, allowed. Hodgson v. Little, cxi. 198; 16 C. B. N. S. 198. PLEDQE. A delivery of part of goods pledged, and the retention of the rest, with an understanding that pledgee could take them at his convenience, is a good delivery inter partes. Martin v. Reid, ciii. 730 ; 11 C. B. N. S. 730. Holder of bill of exchange pledged as collateral, neglecting to present it, will discharge debt of pledgor by amount of bill. Peacock v. Pursell, cviii. 728 ; 14 C. B. N. S. 728. What amounts to unlawful conversion of. Johnson v. Stear, cix. 330; 15 C. B. N. S. 330. Measure of damages for such unlawful conversion confined to actual loss of pledgor, and not value of pledge. Ibid. It seems, that when time for payment is on a future day certain, pledge can be sold on default, though there be no stipulation to that effect. Pigot i>. Cubley, cix. 701 ; 15 C. B. N. S. 701. But where time is indefinite, there must be a demand and due notice of time, and place of sale. Ibid. A demand for an excessive sum accompanying notice would be sufficient. Ibid. Law in the United States considered. Am. Ed. note. Ibid. POOR, I. (a), (b), (c). 343 POOR. I. Acquiring and losing a settlement. III. Guardians and Overseers of the (a) Birth settlement. Poor. (6) Settlement by hiring. IV. Orders of maintenance and re- (c) Acquiring settlement in moval. other ways' V. Other matters. II. Poor law commissioners. I. Acquiring and losing a settlement. (a) BlRTH SETTLEMENT. Proof that the father and mother of the pauper's mother were married in a certain parish, that the pauper's mother and her sisters were baptized there, and that at the earliest recollection of the pauper's mother by her sister she was living there, is evidence of a birth settlement. Kegina v. Crediton, xcvi. 231 ; E., B. & E. 231. Unemancipated child of Irish parent born in parish has a birth settlement there. Regina v. Newchurch, cxiii. 107 ; 3 B. & S. 107. A woman taken into workhouse when confinement was imminent, is "actually chargeable," within 7 & 8 Vict. c. 101, s. 56, and child acquires birth settlement. Regina v. St. Clement Danes, cxiii. 143 ; 3 B. & S. 143. (6) Settlement by hiring. Though a tenancy is terminable by a notice within a year, yet if the terms show that the parties contemplated the tenancy would endure for a year, and it does so endure, it is sufficient to confer a settlement, within 6 Geo. 4, c. 57. Hastings' Union v. St. James, cxviii. 914; 6 B. & S. 914. (c) Acquiring settlement in other ways. A bastard whose mother acquired settlement, different from birth settlement of child, and died, keeps that settlement until sixteen years old. Regina v. Sutton le Brailes, Ixxxv. 814 ; 5 E. & B. 814. By being charged with rates as occupier of premises and paying them. Regi- na v. St. Giles in the Fields, xc. 205 ; 7 E. & B. 205. Since 6 Geo. 4, c. 57, a settlement cannot be acquired by payment of paro- chial rates for tenement, not party's own, without a year's occupation. Regina v. Westbury on Trym, xc. 444 ; 7 E. & B. 444. Service, under an indenture of apprenticeship, executed by guardians of the poor of Canterbury, under 1 Geo. 2. c. 20, but not by the boy, who was more than fifteen years old, confers no settlement. St. Nicholas v. St. Botolph, civ. 645; 12 C. B. N. S. 647. A person who has resided in a parish for five years is irremovable, although his wife has received relief from parish in that time. Regina v. Elvet, cv. 266 ; 2 E. & E. 266. The child of such pauper residing with her father acquires the status of irre- movability. Ibid. Service of a minor in police force with consent of parent, does not emancipate him. Regina v. Selborne, cv. 276 ; 2 E. & E. 276. For a person to obtain a settlement by payment of rates, under 3 & 4 AYm. & M. c. 11, there must be an intention on part of parish to charge him with the payment. Regina v. St. Anne, cv. 485 ; 2 E. & E. 485. An attorney's clerk articled by indenture is an apprentice, and gains a settle- ment, under 3 & 4 Wm. & M. c. 11, in place where he serves, under his articles. St. Pancras v. Clapham, cv. 743 ; 2 E. & E. 743. A settlement under 3 & 4 Wm. & M. c. 11, is not acquired by paying the poor rate for a portion of the year ; it is acquired by paying the entire watch rate imposed for whole year. Everton v. South Stoneham, cv. 771 ; 2 E. & E. 771. A man acquires a settlement by remaining in possession of his wife's estate for forty days after marriage, where the estate, though determinable, remains undetermined for that time. Regina v. Thornton, cv. 788 ; 2 E. & E. 788. 344 POOR, I. (e)— III. A settlement will be thus acquired when wife's tenancy is from week to week. Ibid. Under 9 & 10 Vict. c. 66, explained by 11 & 12 Vict. c. 3, a residence of five years exempts pauper from removal from that parish to the parish of his settle- ment. Regina v. Overseer of St. Giles, cvii. 224 ; 3 E. & E. 224'. Held, therefore, under 16 & 17 Vict. c. 97, s. 102, that expenses could not be imposed on the parish of settlement. Ibid. And this though the pauper was an unemancipated minor child of an irremov- able father. Ibid. Quaere, whether this is so when the father had ceased to be irremovable. Ibid. When by subsequent statute a clearer form of proviso is substituted for another in older statute they are to be read as one. Ibid. Methodist minister holding house rented by circuit stewards and at their pleasure, does not acquire settlement. Regina v. Tiverton, cvii. 555 ; 3 E. & E. 555. And this, though he paid the rent and taxes and had them refunded to him. Ibid. And the payment of poor rates by him did not give a settlement, under 6 Geo. 4, c. 57, s. 2 ; 4 & 5 Wm. 4, c. 76, s. 66. Ibid. tinder 6 Geo. 4, c. 57, s. 2, it is necessary to pay a rent of 10Z. for one year to gain a settlement. Regina v. West Ardsley, cxvi. 95 ; 4 B. & S. 95. It must be for a full year and not for a part of a year. Ibid. Qucere, whether under said act a coal mine is a tenement sufficient to confer a settlement. Ibid. Where a tenant has lived for two and a quarter years under a lease construed as a lease for a year, it will constitute a settlement, under 6 Geo. 4, c. 57, s. 2. Regina v. St. Giles, cxvi. 509 ; 4 B. & S. 509. To confer a settlement, within 6 Geo. 4, c. 57, s. 2, there must be such an occupation as to constitute a separate and distinct dwelling-house. Regina v. Els- wick, cvii. 437 ; 3 E. & E. 437. Occupation under lease, sufficient to gain settlement, under 6 Geo. 4, c. 57, s. 2. Willesden v. Paddington, cxiii. 593 ; 3 B. & S. 593. Under 24 & 25 Vict. c. 55, time of five years, in 9 & 10 Vict. c. 60, s. 1, reduced to three years, and residence in a union, the same effect as in a parish. Salford v. Manchester, cxiii. 599 ; 3 B.& S. 599. The act is retrospective. Ibid. Apprentice, working in one township and residing at night in another, having slept during last night of apprenticeship in latter, acquires settlement there. Regina v. Barton upon Irwell, cxiii. 604; 3 B. & S. 604. Under 7 Geo. 1, c. 7, s. 5, a man receiving lease for three lives, in considera- tion of building a house, subsequently built, at a cost of 851., and annual rent of 25s., acquires a settlement. Regina v. Belford, cxiii. 662 ; 3 B. & S. 662. Such a building is a payment of an amount over 301., within the statute. Ibid. Under 24 & 25 Vict. c. 55, s. 1. three years' residence in union sufficient. Pres- ton v. Blackburn, cxiii. 793 ; 3 B. & S. 793. II. Poor law commissioners. The poor law commissioners still have the right to order the overseers to appoint an auditor, and under 59 Geo. 3, c. 39, the order should be directed to the directors alone. Regina v. St. Pancras, xcvi. 583 ; E. ( B. & E. 583. To what extent 7 & 8 Vict. c. 101, s. 65, repeals the authority of the commis- sioners given by 4 & 5 Wm. 4, c. 76. to appoint auditors. Regina v. St. James, Westminster, cii. 861 ; 1 E. & E. S6l. III. Guardians and Overseers of the Poor. Overseers have appeal from order of settlement, though the guardians have also appealed. Regina v. Justices of West Riding, xc. 14 ; 7 E. & B. 14. A contribution order by the guardians, which does not estimate the probable balance due to the parish, is invalid, though the balances have been fraudulently appropriated by a ~ collector of rates for other parishes. Hale v. The London Union, xcv. 863 ; 6 C. B. N. S. 863. POOR, III, IV. 345 An accountant employed by the guardians to investigate the hooks of their clerk, and make up the half yearly account, may recover, though the contract not under seal. Haigh v. North Bierley Union, xcvi. 873 ; E., B. & E. 873. Under s. 6 of 22 & 23 Vict. c. 49, the guardians do not render a contribution order void, by including in it a balance due the preceding half year. London Union v. Acocks, xcviii. 760 ; 8 C. B. N. S. 760. Refusal of justices to make an order for the payment of the money does not bar proceedings. Ibid. A justice has no jurisdiction to inquire into the validity of an order of sur- charge against the guardians, made by an auditor, under 11 & 12 Vict. c. 91. Regina v. Finnis, cii. 935 ; 1 E. & E. 935. An appointment of one overseer of the poor, under 43 Eliz. c. 2, s. 1 , is bad, although he is the sole householder in the parish. Kegina v. Cousins, cxvi. 849 ; 4 B. & S. 849. An appointment of one overseer of the poor is not good, under 20 Vict. c. 19, s. 22, if the place be in point of fact not extra parochial. Ibid. When the expenses of a valuation, by the assessment committee of a union, may be charged to a parish, under ss. 37, 39 of 25 & 26 Vict. c. 103. Regina v. Richmond, cxviii. 541 ; 6 B. & S. 541. A quo warranto lies for the office of guardian of the poor. Regina v. Hamp- ton, cxviii. 923 ; 6 B. & S. 923. Where a local act substitutes the owners of small tenements for the occupiers with respect to rates, reserving to the occupiers their franchises, the latter may vote for guardians. Ibid. The owner of small tenement, who -compounds for the parochial rates, may be guardian. Ibid. IV. Orders of maintenance and removal. Pauper detained in parish by an accident, and remaining in its workhouse seven years, during which time wound sufficiently healed, held removable to parish of settlement. Regina v. Cuckfield, lxxxv. 523 ; 5 E. & B. 523. Children below the age of sixteen, and one within the age of nurture, sepa- rated bona fide from their mother, removable from the parish of her residence to that of their settlement. Regina v. Combs, lxxxv. 892 ; 5 E. & B. 892. In an order of two justices binding out a pauper, dated at Hatton Garden, the court took judicial notice that that place was in Middlesex, there being a public act in which it is so described. Regina v. Holborn Union, lxxxviii. 715 ; 6 E. & B. 715. Order requiring parish of settlement to pay expenses of a lunatic, incurred by another parish, good, though the lunacy not permanent. Regina v. Guardians of Manchester, lxxxviii. 919 ; 6 E. & B. 919. Though the copy of the order sent by the guardians of the poor had not the particular address of one of the three. Ibid. This omission could be rectified by the Quarter Sessions. Ibid. The union in which is the parish of residence of an irremovable pauper charged with his expenses in lunatic asylum. Regina v. West Ward Union, xc. 21 ; 7 E. & B. 21. 16 & 17 Vict. c. 97 throws the expense of an irremovable pauper lunatic on the parish of residence, though there is an existing order on the parish of settle- ment. Knowles v. Trafford, xc. 144 ; 7 E. & B. 144. Parish in which pauper has status of irremovability liable for expenses, though pauper become lunatic during temporary visit to another parish. Leeds v. Wake- field, xc. 258 ; 7 E. & B. 258. Appeal from an order of removal of pauper must be tried or entered and respited, at the next practicable sessions after the service of the order. Regina v. Justices of Peterborough, xc. 643 ; 7 E. & B. 643. A pregnant woman is not sick, under 9 & 10 Vict. c. 66, s. 4, and therefore order of removal not objectionable because warrant does not state the disability to be permanent. Regina v. Huddersfield, xc. 794 ; 7 E. & B. 794. 11 & 12 Vict. c. 110, s. 3, applies to the case of a pauper residing five years in a parish of a union, whose settlement is unascertained. In re Bedminstor Union, xcii. 573 ; 8 E. & B. 573. Order of removal of a mother and infant, " her daughter," to a parish, unap- 346 POOR, IV. pealed against, does not estop the parish from showing the illegitimacy of th< child, on appeal from another order nineteen years later. Regina v. Inhabitants of Caerwys, xcii. 720 ; 8 E. & B. 720. Mandamus does not lie to compel parish officers to receive pauper on an ordei of removal. Ex parte Overseers of Downton, xcii. 856 ; 8 E. & B. 856. When an order of adjudication and maintenance is apparently regular and refers by recital to a former order, it is inferred, in the absence of proof to the contrary that the recited order is good. Regina v. Crediton, xcvi. 231 ; E., B. &E. 231. An order of maintenance, directed to the guardians and ordering their clerk to pay, is in substance an order on the guardians themselves. Ibid. A demand for a copy of the depositions is in time, under 11 & 12 Vict. c. 31, s. 9, if received by the clerk to the justices on the twenty-first day after the state- ments of the grounds of removal were received by the overseers of the appellant parish. Regina v. Richmond, xcvi. 253 ; E., B. & E. 253. Appellant against an order of removal may take the full number of days under 11 & 12 Vict. c. 31, s. 9, and then, if there is time, he should give notice of trial for the next sessions, if not he should enter and respite the appeal. Regina v. West Riding, xcvi. 713 ; E., B. & E. 713. Under 11 & 12 Vict. c. 31, the decision of the Quarter Sessions as to the suffi- ciency and effect of the statement of the grounds of removal is final. Regina v. Ruyton, ci. 534 ; 1 B. & S. 534. The status of irremovability of an unemancipated child follows the status of the head of the family. Regina v. Overseers of Exeter, ci. 890 ; 1 B. & S. 890. Where a mother who was irremovable consented to her children, within the age of nurture, going to the workhouse, but without knowledge of an intention to remove them, an order for their removal to the parish of settlement is bad. Regina v. Inhabitants of Aughton, ci. 973 ; 1 B. & S. 973. Under 9 & 10 Vict. c. 66, imprisonment in England under sentence for penal servitude, is not an interruption of the residence which confers the status of irre- movability. Regina v. Potterhanworth, cii. 262 ; 1 E. & E. 262. The irremovability which a wife derives from her husband can only be claimed during his lifetime. Regina v. Cudham, cii. 409 ; 1 E. & E. 409. An order for the payment of the expenses of the removal of a pauper, omitting to state the locality in which the justices sat, amended without costs. Regina v. HeUingley, cii. 749 ; 1 E. & E. 749. Where an order of maintenance is obtained by the guardians of a union, on behalf of the overseers of a township, the overseers are the proper parties to sign the statement. Regina v. Heaton, cii. 782 ; 1 E. & E. 782. An appeal from an order removing a pauper was made more than ten days before October Quarter Sessions, but no notice of trial given, held the justices had jurisdiction to adjourn the appeal to next Quarter Sessions. Regina v. Skir- coat, cv. 186 ; 2 E. & E. 186. The order suspending an order of removal, under 35 Geo. 3, c. 101, must be made at same term as the order of removal. Regina v. Llanllechid, cv. 530 ; 2 E. & E. 530. An order of justices, under 16 & 17 Vict. c. 97, adjudging a lunatic to be chargeable to the county, is not final and may be changed subsequently. All Saints, Middlesex, cv. 829 ; 2 E. & E. 829. Relieving parish only entitled to cost of maintenance for twenty-one days after notice, under 4 & 5 Wm. 4, c. 76, ss. 79, 84, 99. Hill v. Thorncroft, cvii. 257 : 3 E. & E. 257. _ The information in such cases must be within six months, under 11 & 12 Vict. c. 43, s. 11. Ibid. Order of settlement and maintenance of pauper lunatic, under 16 & 17 Vict. c. 97, s. 97, is good, though the confinement was by order of magistrate having no jurisdiction. Faversham v. Isle of Thanet, ex. 275 ; 2 B. & S. 275. Under 9 & 10 Vict. c. 66, s. 4, the requirement that the sickness shall produce permanent disability applies only to the sickness of the person removed. Regi- na v. St. George, Middlesex, ex. 317 ; 2 B. & S. 317. An order of removal is good, under the act where the requirement does not apply. Ibid. otice of chargeability and copy of order of removal, &c, under 4 & 5 Wm. POOR, IV. 347 4, c. 76, sent by post, is not void because delivered on Sunday. Regina o. Leo- minster, ex. 391 ; 2 B. & S. 391. After order for expenses of suspended order of removal in proceedings under 35 Geo. 3, c. 101, s. 2, its validity cannot be inquired into, but payment must be enforced. Regina e. Higgimon, ex. 471 ; 2 B. & S. 471. Irremovability of parent of pauper lunatic receiving support in an asylum after,five years' residence. Regina v. St. Mary, cxiii. 46. ; 3 B. & S. 46. Such support of lunatio is not furnishing relief to the parent. Ibid. Order made for maintenance of pauper lunatic unemancipated, having birth settlement in -parish, under 16 & 17 Vict. c. 97, ss. 97, 98. Regina v. Newchurch, cxiii. 107; 3 B. & S. 107. It seems, that, under 8 & 9 Vict. c. 117, if the father, being Irish, were re- moved, child would be removed with him. Ibid. Order of maintenance of pauper lunatic, living separate from husband and then in lunatic asylum, made upon parish where she was settled through husband, under 16 & 17 Vict. c. 97, s. 102. East Retford v. Strand, cxiii. 122 ; 3 B. & S. 122. And it made no difference that husband had become irremovable, in another parish by reason of settlement. Ibid. Child acquiring birth settlement in parish through mother being actually chargeable, under 7 & 8 Vict. c. 101, s. 56, is removable there. Piegina v. St. Clement Danes, cxiii. 143 ; 3 B. & S. 143. In order to effectuate appeal from order of removal, under 11 & 12 Vict. c. 31, s. 3, the application for copy of deposition must be to clerk of justices. Regina v. St. Alkmund, cxiii. 347 ; 3 B. & S. 347. Order of removal, under 9 & 10 Vict. c. 66, s. 4, stating that permanent disa- bility will be produced by sickness or accident, cannot be appealed from. Regina v. Whittlesey, cxiii. 432 ; 3 B. & S. 432. Expenses of maintenance and removal in an order, under 16 & 17 Vict. c. 97, for removal of lunatic, wife of Scotchman, are chargeable to county and not to parish of residence. Somersetshire v. Shipham, cxiii. 507 ; 3 B. & S. 507. Provisions of 8 & 9 Vict. c. 117, for removal to their own country, do not affect this. Ibid. Where settlement has been gained by a renting for a year, under 6 Geo. 4, c. 57, s. 2, order of removal will be granted. Willesden v. Paddington, cxiii. 593 ; 3 B. & S. 593. Where order for removal of pauper was legally obtained, but removal became illegal by 24 & 25 Vict. c. 55, expenses of maintenance from time of order cannot be recovered. Salford v. Manchester, cxiii. 599 ; 3 B. & S. 599. Pauper residing three years in union is irremovable by 24 & 25 Vict. c. 55, s. 1. Preston v. Blackburn, cxiii. 793 ; 3 B. & S, 793. Residence in townships, part of the union, during requisite time, sufficient. Ibid. The act is retrospective. Ibid. Permanent absence causes a break of residence in a parish. Wellington v. Whitchurch, cxvi. 100 ; 4 B. & S. 100. Absence in Cuba for two and a half years is a permanent absence. Ibid. Even though the family remain in the same place, and provision is made for them by husband. Ibid. And the intention to return exists. Ibid. Where there is such a break of residence, pauper is removable to another parish. Ibid. Order of removal of pauper lunatic to county asylum, under 16 & 17 Vict. c. 97. Regina v. Overseers, cxvi. 108 ; 4 B. & S. 108. Where lunatic a wife, it is relief to husband, 4 & 5 Wm. 4, c. 76, s. 56. Ibid. Unless husband has acquired irremovability before order, relief will prevent such status. Ibid. Order of removal, under 35 Geo. 3, c. 101, s. 1. Resina v. Llanaian, cxvi. 249 : 4B. &S. 249. ' When made by mayor and ex-mayor of borough, sufficient. Ibid. 13 & 14> Car. 2, c. 12, s. 1, repealed by 35 Geo. 3, c. 101, s. 1. (Cockburn, C. J., dissenting.) Ibid. Statement of grounds of appeal, with notice of appeal, from order of removal, 348 POOR, IV., V. POST-HOESE DUTY. when within sufficient time, under 4 & 5 Win. 4, c. 76, and 11 & 12 Vict. c. 31. Regina v. Sussex, cxvi. 966 ; 4 B. & S. 966 j reversing ex. 664, 2B.&S. 664. Refusal of adjournment of appeal by justices, when proper. Ibid. A pauper residing a few months in a parish, in the same union with the parish of settlement, is removable to the latter, notwithstanding 24 & 25 Vict. c. 55, s. 1. Regina v. Great Salkeld, exvii. 377 ; 5 B. & S. 377. There is no appeal from an order of the justices for the maintenance of a pauper lunatic, made under sect. 96 of 16 & 17 Vict. c. 97. Regina v. North- ampton, cxviii. 653 ; 6 B. & S. 653. Residence, within 9 & 10 Vict. c. 66, and 24 & 25 Vict. c. 55, need not be in a house, and is not interrupted by temporary necessary absence. Regina v. St. Leonard, cxviii. 784 ; 6 B. &. S. 784. V. Other matters. Decision of auditor of the poor law on an attorney's bill final, unless taxed before presentation. Regina v. Hunt, lxxxviii. 408 ; 6 E. & B. 408. A borough, having a separate Quarter Sessions, is not liable for the expenses of a lunatic whose settlement is unascertained, sent from it to an asylum, if it con- tributes to the county rate. Guardians of Birmingham v. Beaumont, xcii. 870 ; 8 E. & B. 870. How the owner of a tithe commutation rent charge is rateable to the poor and to what deductions entitled. Goodchild v. The Trustees, xcvi. 1 ; E., B. & E. 1. An order by the Poor Law Commissioners on a parish which is partly in the nature of a retrospective rate is invalid and unenforceable. Waddington v. London Union, xcvi. 370 ; E., B. & E. 370. What is " running away" within the Vagrant Act, 5 Geo. 4, c. 83. Cambridge Union v. Parr, c. 99 ; 10 C. B. N. S. 99. The word " union" in 16 & 17 Vict. c. 97, s. 97, applies to a union formed under Gilbert's Act, 22 Geo. 3, c. 83. Regina v. Inhabitants of Bramley, ci. 732 ; 1 B. & S. 732. 20 Vict. c. 19, providing for places extra-parochial, is not retrospective. Re- gina v. St. Sepulchre, cii. 813; I E. & E. 813. Qucere, whether obtaining medical assistance " on loan," under 4 & 5 Wm. 4, c. 76, is receiving relief within 2 Wm. 4, c. 45, s. 36. Devenish v. Digby, cvL 28 : 13 C. B. N. S. 28. Support by the parish of the father of the voter, whom the voter was able to support, is not parochial relief to the voter, under 2 Wm. 4, c. 45, s. 36. Trotter v. Trevor, cvi. 48 ; 13 C. B. N. S. 48. Where poor-law accounts have been audited and settled, the finding of the auditor cannot be opened or attacked upon a subsequent audit. Regina v. Chid- dingstone, ex. 294 ; 2 B. & S. 294. Husband not liable, after voluntary separation from wife, leaving her means of support, under 5 Geo. 4, c. 83, s. 4, where she becomes afterwards chargeable. Sweeney v. Spooner, cxiii. 329 ; 3 B. & S. 329. Parish union for purposes of settlement, under 4 & 5 Wm. 4, c. 76, s. 33. Re- gina v. Calthrop, cxvi. 216 ; 4 B. & S. 216. 24 & 25 Vict. c. 55, s. 9, applicable thereto. Ibid. Contributions of parishes ought to be according to rateable value of lands, &c. Ibid. Poor-law auditor's power to assess common charges. Ibid. Under 4 & 5 Wm. 4, c. 76, s. 71, personal representatives of deceased mother need not support bastard child. Ruttinger v. Temple, cxvi. 491 ; 4 B. & S. 491. An order for the expenses of a lunatic, under 16 & 17 Vict. c. 97, s. 97, must be made on the guardians of the parish, not of the union, where the parish is a member of a union, under Gilbert's Act, 22 Geo. 3, c. 83. Leatham v. Bolton. Le Sands, cxviii. 547 ; 6 B. & S. 547. POST-HORSE DUTY. A person plying a hackney carriage for hire in a town, must take out a license, under 10 & 11 Vict. c. 89, though he has paid post-horse duty. Buckle v. Wrightson, cxvii. 854 ; 5 B. & S. 854. POWERS. PRACTICE, L 349 POWERS. Power of attorney to assent to composition with debtor, by manager of corpo- ration, does not require authority under seal. Naylor v. Mortimore, cxii. 207 ; 17 C. B. N. S. 207. A fortiori, when there is ratification by corporation. Ibid. Power of sale in mortgage of personal chattels. Maugham v. Sharpe, cxii. 443 ; 17 C. B. N. S. 443. Power to executors to sell copyhold, when exercised at auction, will entitle purchaser to admission without previous admission of executor or heir. Regina v. Wilson, cxiii. 201 ; 3 B. & S. 201. Commissioners under local acts, with power to convey tolls, income, &c, of bridge, cannot convey lands adjacent to said bridge. Tepper v. Nichols, cxiv. 121; 18 C.B.N. S. 121. Provisions in private act for re-settlement of an estate that trustees are to sell, inter alia, discharged from all powers, &c, that in the meantime tenants in pos- session shall enjoy the premises, and that proceeds shall be re-settled, is a destruc- tion of power of leasing on fine. Earl of Shrewsbury v. Keightley, cxv. 606 ; 19 C. B. N. S. 606 ; Earl of Shrewsbury v. Harbord, cxv. 643 ; 19 C. B. N. S. 643. Provisions in private act construed as grant of power of leasing by tenant in tail, destroyed by prior act, it being to the interest of estate. Earl of Shrews- bury v. Beazley, cxv. 651 ; 19 C. B. N. S. 651. (See Earl of Shrewsbury v. Keightley, cxv. 606 ; 19 C. B. N. S. 606.) PRACTICE. I. Authority of courts to establish VIII. Judgment by default. rules. (a) Judgment for want of a II. Of motions, rules and orders. plea. Service of rule. (5) Under Common Law i] S) Rule to plead. Procedure Acts. (c) Motions and rules in other IX. Trial by proviso. cases. X. Stay of proceedings. III. Of notices. XI. Consolidation of actions. (a) Notice of trial. XII. Interpleader, (o) Service of notice. XIII. Payment into court, (c) Other matters relating to (a) Effect of payment into notices. court. IV. Affidavits. (6) When money paid can Affidavit of merits. be taken out. Title of affidavits. XIV. The trial and proceedings in Jurat of affidavits. relation thereto. Other matters relating to (a) Change of venue. affidavits. (b) Special jury. V. Agreements. (c) Postponement of cause. VI. Process. (d) Order of addressing jury. (a) General matters. (e) Nonsuit. (6) Proceedings after bail. Cf) Inferior courts, f c) Service of process. (g) Case stated. Id) Proceedings to outlawry. XV. Special case. (e) Irregularities when to be XVI. Arrest of judgment, taken advantage of. XVII. Certiorari. VII. The declaration and the pleadings. XVIII. Other matters. I. Authority op courts to establish rules. Quarter Sessions cannot dismiss appeal from a summary conviction because of want of notice required to be given under a rule. In re Blues, lxxxv. 291 : 5 E. & B. 291. 350 PRACTICE, II. II. Of motions, rules and orders. Order of reference with enlargements of time endorsed, being destroyed, court permitted duplicate with verified copies of enlargements, to be made a rule. Parker v. Bach, lxxxiv. 512; 17 C. B. 512. Rule to set aside verdict having by mistake of counsel been moved in wrong court, motion permitted to be renewed after expiration of time. Johnson v. Warwick, lxxxiv. 516 ; 17 C. B. 516. Rule for new trial in case tried by sheriff, not granted unless affidavit verify- ing his notes made within four days. SantS v. Hicks, lxxxiv. 523 ; 17 C. B. 523. Court having made rule on terms agreed upon by parties, will not afterward introduce term not stipulated. Hayne v. Robertson, lxxxiv. 548 ; 17 C. B. 548. Application for rule on grounds which should have been presented on former occasion, not entertained. Leggo v. Young, lxxxiv. 549 ; 17 0. B. 549. Rule for service of pleadings, notices, &c. lxxxiv. 727 ; 17 C. B. 727. Where rule of reference was drawn without mentioning costs under the belief of both sides that they followed, it was amended after award. Bell v. Postle- thwaite, lxxxv. 695 ; 5 E. & B. 695. Court refused to enlarge rule for a suggestion under London Small Debts Act to deprive plaintiff of costs, in order to enable him to apply for certificate. Ward v. Cardwell, lxxxvi. 639 ; 18 C. B. 639. Violation of a rule no ground for an application to rescind it. Bayntun v. Bayntun, lxxxvii. 220 ; 1 C. B. N. S. 220. 12 & 13 Vict. c. 45, s. 18, for enforcingorders of sessions, does not apply to a judgment on an indictment. Regina w. Bateman, xcii. 584 ; 8 B. & B. 584. General rules as to appeals, xcii. 646 ; 8 E. & B. 646. Amendment of rule as to endorsement on writs, under Bills of Exchange Act. xcii. 949 ; 8 E. & B. 949. Court will not on motion of client interfere to compel an attorney to pay coun- sel's fees. Angell v. Ooddeen, xcviii. 891 ; 8 C. B. K. S. 891. Where a party has been discharged from arrest under a ca. sa., on condition that he shall bring no action, he cannot sue for wrongful arrest. Hayward v. Duff, civ. 365 ; 12 C. B. N. S. 365. The rule that a new trial will not be granted where less than hi. is sought to be recovered is a ^ise rule, and will not be relaxed because question is important to the plaintiff. Lee v. Evans, civ. 369 ; 12 C. B. N. S. 369. Where an insolvent whose case has been adjourned without protection, is arrested on a ca. sa., he will not be discharged except on condition of not suing the sheriff. Andrews o. Martin, civ. 371 ; 12 C. B. N. S. 371. When charges have been referred to a master, the court will only look at the report and will not allow the evidence before him to be discussed. In re Wright, civ. 706.; 12 0. B. N. S. 706. Where plaintiff, who has sued in forma pauperis, has obtained a verdict and certificate for costs, and on taxation nothing has been allowed him in respect of his attorney's or counsel's services and fees, the entry of a suggestion on the roll to deprive him of costs in order to bringwrit of error will not be allowed. Dooly v. G. N. Railway Co., cv. 576 ; 2 E. & E. 576. When a writ of error coram nobis to reverse outlawry recited that plaintiff in error appeared in person, and defendant in error pleaded a joinder in error, he is precluded from asking to have proceedings in error set aside, because as a matter of fact, plaintiff in error has not appeared in person. Smith v. Bromley, cv. 581 ; 2 E. & E. 581. When defendant does not object to a delay of judge, in making certificate pro- vided for in 16 & 17 Vict. c. 77, he cannot have order rescinded, because not made forthwith. TIeden ». Steam Nav. Co., cv. 671 ; 2 E. & E. 671. An order giving costs on allowing an appeal against a poor rate and a judge's order of removal, will not'be set aside, where both orders are regular on their face. Ex parte Fletton, cv. 712 ; 2 E. & E. 712. On rule for costs, under 15 & 16 Vict. c. 54, s. 4, all materials relevant brought before judge at chambers must be before court. Bennett v. Benham, cix. 616 ; 15 C. B. N. S.616. The court will not order an officer to reseal a writ nunc pro time, so as to save the Statute of Limitations, where the party had attended on the last day and PEACTICE, II. (a), (I), (c). 351 found the office closed, it being a Christmas holiday. Evans v. Jones, ex. 45 : 2 B. & S. 45. ' When the case is clear the court will grant a rule on justices for the payment of a rate. Regina v. Roberts, cxiii. 495 ; 3 B. & S. 495. An action being stayed on condition that an insurance be kept on a ship, if the insurance be allowed to expire, the court will not interfere with entry of judg- ment and execution thereon. Parry v. Great Ship Co., cxvi. 556 ; 4 B. & S. 556. It seems, where there has been an order for costs in ejectment and laches in the enforcement, the court would refuse to issue an attachment. Mobbs v. Vanderbrande, cxvi. 904 ; 4 B. & S. 904. (a) Service of rule. Court refused to dispense with personal service in attachment for disobedience to a rule. Swinfen v. Swinfen, lxxxvii. 364 ; 1 C. B. N. S. 364! Service of rule for execution against shareholder in joint stock company on his attorney, not sufficient. Edwards v. Railway Co., lxxxvii. 409 : 1 C. B. N. S. 409. _ J ' Rule which could not be served and has run out may be amended and en- larged. Grissold e. Harding, lxxxvii. 556 ; 1 C. B. N. S. 556. The place for the delivery of paper books is the Chambers in Rolls Gardens. Howells v. Wynne, cix. 3 ; 15 C. B. N. S. 3. Putting a rule under the door of the attorney's office is not a good service. Burdett ». Lewis, xcvii. 791 ; 7 C. B. N. S. 791. (6) Rule to plead. When rule to plead expires on holiday, time will be extended to following day. Munsford v. Hitchcocks, cviii. 361 ; 14 C. B. N. S. 361. (c) Motions and rules in other cases. Rules of court and forms, lxxxiv. 1 ; 17 C. B. 1. Objections to interrogatories, under Common Law Procedure Act, that answers would work forfeiture of party's estate, must be made, not on application for rule, but when he is sworn. Chester tf. Wortley, lxxxiv. 410 ; 17 C. B. 410. Interrogatories by plaintiff allowed after plea, without affidavit. James v. Barns, lxxxiv. 596 ; 17 C. B. 596. Where defendant took rule on plaintiff to show cause why proceedings should not be stayed on payment of amount due, but did not pay money into court, plaintiff allowed subsequent costs. Hore v. Saxl, lxxxiv. 599 ; 17 0. B. 599. Review of taxation of costs not granted on ground not specifically pointed out to master. Ibid. Money deposited by defendant arrested on capias restored on rule where plain- tiff plainly had no case. Stammers v. Hughes, lxxxvi. 527 ; 18 C. B. 527. Court discharged rule to strike out pleas in action of nuisance where defendant pleaded not guilty as to grievances before a certain date, and as to subsequent grievances paid a sum of money into court. Fountain v. Chamberlain, lxxxvi. 660; 18 C. B. 660. An attorney re-admitted, though rule requiring affidavit to be left at chambers of chief iustice not complied with. Ex parte Thomas Makinson, lxxxvi. 661 : 18C.B.661. . . Rule for mandamus to examine witnesses may be moved pending issues at law. Kelsall v. Marshall, lxxxvii. 266 ; 1 C. B. N. S. 266. Where an attorney, who had been stricken from the roll, applied for re-admis- sion, and his affidavit described him as one of the attorneys of the court, it was amended. In re Simpson, lxxxvii. 554 ; 1 C. B. N. S. 554. Rule to inspect papers of the other side not granted where the suit was mani- festly commenced in order to get information for use in another suit. Temperley v. Willett, lxxxviii. 380 ; 6 E. & B. 380. Rule of court as to service, lxxxviii. 421 ; 6 E. & B. 421. General rule concerning endorsement of notice on writs on contracts under 20/. lxxxix. 91 ; 2 C. B. N. S. 91. Concerning entry of satisfaction on judgments. Ibid. For judgment and execution, under Common Law Procedure Act, made to the 352 PRACTICE, II. (c), III. (a). court, and absolute in first instance. Youens v. Keen, lxxxix. 384 ; 2 C. B. N. S. 384. Rule as to costs on judgment for default of appearance, xc. 536 ; 7 E. & B. 536. Rule as to entry of satisfaction on judgments, xc. 537 ; 7 E. & B. 537. An order at Nisi Prius may be made a rule of court as to a person not in the cause who became a party to it. Williams v. Lewis, xc. 929 ; 7 E. & B. 929. At post terminal sittings no original motion can be entertained. Tabor v. Edwards, xci. 64 ; 3 C. B. N. S. 64. General rule as to appeals, under 20 &21 Vict. c. 43. xci. 141 ; 3 C. B. N. S. 141. General rule as to declaring, under Bills of Exchange Act 1853. xci. 620; 3 C. B. N. S. 620. Only one day intervening since the trial, the court refused to reserve a motion for a new trial until the next term, on the ground of want of time to prepare affidavits of surprise. Cooper v. Lloyd, xcv. 519 ; 6 0. B. N. S. 519. The fact that an order enlarging the time for an award was erroneously entitled in the Queen's Bench, is no ground for interfering with the award. Oldfield v. Price, xcv. 539 ; 6 0. B. N. §. .539. Begula generalis, as to mandamus to justices to enter continuances and hear appeals, xcvi. 253 ; E., B. & E. 253. Where, by a judge's order, a debt was to be paid by instalments, an offer up- on Monday of one of the instalments coming due on Sunday, was in time. Mor- ris v. Barrett, xcvii. 139 ; 7 C. B. N. S. 139. Defendant may call upon plaintiff, who has obtained judgment in ejectment and executed a writ of possession, to deliver a bill of costs. Baker v. Saunders, xcvii. 858 ; 7 C. B. N. S. 858. Advantage cannot be taken of sect. 5, 19 & 20 Vict. c. 97, on motion. Phillips ». Dickson,_ xcviii. 391 ; 8 C. B. N. S. 391. Application for and service of a rule to take money out of court. ( Patton v. Gordon, xcviii. 886 ; 8 C. B. N. S. 886. In a motion for the summary jurisdiction of the court against attorneys imputing misconduct, their names should not be used. In re , xcviii. 894 ; 8 C. B. N. S. 894. Rule for payment of money under an award refused, there being unascertained costs in chancery payable to the other party under same award and no delay. Lambe v. Jones, xcix. 478 ; 9 C. B. N. S. 478. It is no answer to an application calling on an attorney to answer matters c.ci- tained in affidavit, that applicant has obtained a decree in equity against attorney in regard to same matters. In re Wright, civ. 706 ; 12 C. B. N. S. 706. General rule as to the verification of acknowledgments, under 3 & 4 Wm. 4, c. 74. cvi. 2 ; 13 C. B. N. S. 2. General rule as to verifying the acknowledgments of married women, cvi. 405 ; 13 C. B. N. S. 405. An order for the examination of witnesses, if asked bona fide, may be made before the case is at issue. Fischer v. Hahn, cvi. 659 ; 13 C. B. N. S. 659. Under Common Law Procedure Act 1854, s. 80, inspection of documents will be granted upon reasonable ground shown that they exist and are relevant. Houghton v. L. & C. Assurance Co., cxii. 80 ; 17 C. B. N. S. 80. General rule as to fees of sheriff, &c. cxvii. 722 ;~ 5 B. & S. 722. On the prolongation of litigation by appeal to the House of Lords, on a man- damus to a corporation in which security for costs was required, the amount may be increased. Regina v. Southampton, cxviii. 407 ; 6 B. & S. 407. Where justices dismiss an information on the ground that one of them is inter- ested, the remedy is by mandamus or rule under 11 & 12 Vict. c. 44. Wakefield v. W., R. & G. Railway Co., cxviii. 794 ; 6 B. & S. 794. III. Or notices. (a) Notice of trial. Notice of trial which did not mislead good though verbally inaccurate. Fenn v. Green, lxxxviii. 656 ; 6 E. & B. 656. Appellant against an order of removal may take the full number of days, PRACTICE, III. (a), (6), (c). 353 under 11 & 12 Vict. c. 31, s. 9, and then if there is time he should give notice of trial for the next sessions ; if not, he should enter and respite the appeal. Regina v. "West Riding, xovi. 713 ; E., B. & E. 713. Liberty to set cause down before issue does* not dispense with notice of trial. Curcis v. Piatt, cxi. 465 ; 16 C. B. N. S. 465. No costs allowed in the cause, as costs for preparing for trial, there being no notice of trial. Freeman v. Springham, cviii. 197 ; 14 C. B. N. S. 197. If necessary, it seems, they would be allowed between attorney and client. Ibid. (6) Service or notice. Where notice required for forfeiture, and at the proper place a board put up, without shareholder's knowledge, directed all letters for his firm to be sent to A., a notice sent to A. which did not reach shareholder, was insufficient. Cockerell v. Van Dieman's Land Co., lxxxvi. 454 ; 18 C. B. 454. Affirmed in Exchequer Chamber, lxxxvii. 732 ; 1 C. B. N. S. 732. Service of notice on shareholder of a joint stock company by leaving copy at his residence with footman, sufficient. Morisse v. Royal British Bank, lxxxvii. 67 ; 1 C. B. N. S. 67. Putting a notice under the door of the attorney's office is not a good service. Burdett v. Lewis, xcvii. 791 ; 7 C. B. N. S. 791. Notice affixed to the church, that the wardens, overseers and principal inhabit- ants of this parish, are requested to meet in the vestry, to examine the wardens' accounts and grant them a rate, is sufficient. Rand v. Green, xcix. 470 ; 9 C. B. N. S. 470. Notice of the allowance of a rate need not be signed, and is sufficiently pub' lished if affixed to the church door before afternoon service on the following Sunday. Burnley v. Methley, cii. 789 ; 1 E. & E. 789. Notice of chargeability and copy of order of removal, &c, of pauper, sent by post, under 4 & 5 Wru. 4, c. 76, not void because delivered on Sunday. Retina v. Leominster, ex. 391 ; 2 B. & S. 391. Notice of objection to voter, by mail, under 6 & 7 Vict. c. 18, s. 100, when good. Benish v. Booth, cxiv. Ill ; 18 C. B. N. S. 111. (c) Other matters relating to notices. Where act provided that shareholder in a joint stock company should abso- lutely forfeit his shares upon non-payment of calls, but the company should have no advantage from it until after notice, forfeiture was not complete until after notice. Cockerell v. Van Diemen's Land Co., lxxxvi. 454 : 18 C. B. N. S. 454. Notice, under 1 & 2 Vict. c. 74, which does not state place where application for warrant to be made, and that person giving notice is agent of owner, is in- formal. Delaney v. Fox, lxxxvii. 166 ; 1 C. B. N. S. 166. Notice, under 7 & 8 Vict. c. 113, which includes two persons, though the ap- §lication confined to one, is good. Dossett v. Harding, lxxxvii. 524 ; 1 C. B. N. . 524. Powis v. Harding, lxxxvii. 533 ; 1 C. B. N. S. 533. Notice, under 7 & 8 Vict. c. 113, in the alternative of intention to 'apply to a court or a judge, is good. Bendy v. Harding, lxxxvii. 551 ; 1 C. B. N. S. 551. Notice, under 7 & 8 Vict. c. 113, to John Marshall, which should have been to John S. Marshall, accompanied by oath of identity, is sufficient. Thompson ». Harding, lxxxvii. 555 ; 1 C. B. N. S. 555. Ten days' notice of the application for the discharge of a prisoner detained a year for 201. must be given, under 48 Geo. 3, c. 123. Doye v. Eley, xci. 764 ; 3 C. B. N. S. 764. Under s. 88 of 5 & 6 Wm. 4, c. 50, an appeal cannot be brought unless ten days' notice has been given. Regina v. Justices of Lancashire, xcii. 563 ; 8 E. &B. 563." If the appeal has been received without notice, it cannot be respited. Ibid. Notice given before adjourned sessions, is insufficient. Ibid. Notice for a special jury, under sect. 54 of the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, is not a waiver of a previous notice, under sect. 68, so as to extend the time for issuing a warrant. Glynn v. Aberdale Valley Railway Co., xcv. 359 ; 6 C. B. N. S. 359. Under sect. 223 of 5 & 6 Wm. 4, c. 107, notice is required only in the case of Vol. III.— 23 354 PRACTICE, III. (c), IV. (a), (6), (c), (d); some act or omission warranted, or supposed to be warranted, by the statute. Garton v. G. W. Railway Co., xevi. 837 ; E., B. & E. 837. A contract, to be binding for twelve months certain, and to continue from time to time until three months' notice be given, may be determined at the end of the first year by notice. Brown v. Symons, xcviii. 208 ; 8 C. B. Nl S. 208. Tenant from week to week is entitled to reasonable notice to quit. Jones v. Mills, c. 788; 10 C. B. N. S. 788. Notice to plaintiff's attorney of an act of bankruptcy, is notice to plaintiff Brewin v. Briscoe, cv. 117; 2 E. & E. 117. Notices given under Public Health Act, 11 & 12 Vict. c. 63, s. 72, prior to operation of Local Government Act, 21 & 22 Vict. c. 98, are good, under s. 9 of said act. Felkin v. Berridge, cix. 257 ; 15- 0. B. N. S. 257. A notice, under 8 & 9 Viet. c. 18, s. 68, must state the quality and quantity of the estate. Healey v. T. V. Railway Co., cxvii. 769 ; 5 B. & S. 769. IV. Affidavits. Senible, that on a motion for a new trial in a crim. con. case, the affidavit of plaintiff's wife cannot be used for any purpose. Ling v. Croker, Ixxxix. 760 ; 2 C. B. N. S. 760. Affidavit on application to deliver interrogatories must state that party will be benefited "in this cause," and attorney need not join in affidavit, where party sues or defends himself. Oxlade v. N. E. Railway Co., civ. 350 ; 12 C. B. N. S. 350. When affidavit of authority to sign required before submission to arbitration will be made rule of court. Re Aldington and Chesshire, cix. 375 ; 15 C. B. N. S. 375. The rule of Mich. Term 1862 (13 C. B. N. S. 2, cvi. 2), as to form of affidavit on acknowledgments, is directory only. Ex parte Hall. cxv. 369 ; 19 C. B. N. S. 369. " It seems, that under rule Hil. Term, 14 Geo. 3, the word ''magistrate" means any one authorized to administer oaths. Ibid. (a) Affidavit of merits. An affidavit to a petition, under the Insolvent Debtors' Act, need not expressly state that the defendant has resided for six months within the district of the county court. Walker v. The Queen, xcii. 439 ; 8 E. & B. 439. (&) Title of affidavits. Affidavits for scire facias against shareholder of a joint stock company are properly entitled as of the original action. Edwards v. Kilkenny Railway Co., xci. 786, 787 ; 3 C. B. N. S. 786, 787. (c) Jurat of affidavits. t Affidavit taken before an attorney in Ontario, under 3 & 4 Wm. 4, c. 74, can- not be file4. Re Arabella Woodman, ciii. 631 ; 11 C. B. N. S. 631. (d) Other matters relating to affidavits. On motion for new trial, in action of crim. con., affidavit of defendant received, but not that of plaintiff's wife. Hawker v. Seale, lxxxiv. 595 ; 17 C. B. 595. Affidavit to hold to bail good, though headed with names of parties to suit, and sworn before summons. Hargreaves v. Hayes, lxxxv. 272 ; 5 E. & B. 272. Though it claims for shares sold without adding delivered. Ibid. Though it says defendant likely to leave, without adding unless apprehended. Ibid. . Application for leave to file affidavits in answer to new matter, after argument has proceeded, is too late. Swinfen v. Swinfen, lxxxvii. 364; 1 C. B. N. S. 364. Affidavit that writs of fi. fa. had been returned nulla bona, that after proper inquiries plaintiff believed company had no assets, and that all due diligence had been used, held sufficient for execution against shareholder of a joint stock com- PRACTICE, IV. (cO— VI. (a). 355 pany, under 8 & 9 Vict. Wyatt v. Dayrenth Valley Railway Co., Ixxxix. 110 ; Affidavit, under 3 & 4 Wm. 4, describing applicant as " wife or widow," is not sufficient. In re Anderson, Ixxxix. 118 ; 2 C. B. N. S. 118. An oath made under an act prescribing a form, which closed with, " so help me God," is properly administered though these words omitted. L. & C. Rail- way Co. v. Heaton, xcii. 952 ; 8 E. & B. 952. Bill of sale not invalid, under 17 & 18 Vict. c. 36, because the commissioner in the affidavit describes himself as of the Exchequer. Cheney v. Courtois, cvi. 634; 13 C. B. N. S. 634. Affidavit for production of documents, under 17 & 18 Vict. c. 1 25, s. 50, must be sworn to by a party to the cause. Christopherson v. Lotinga, cix. 809 ; 15 C. B. N. S. 809. Rule, Hil. T. 14 Geo. 3, as to acknowledgments of married women in foreign countries need not be strictly complied with. In re Cooper, cxiv. 220 ; 18 C. B. N. S. 220. The essence of the rule is, that the oath should be taken before one duly au- thorized. Ibid. The court will not allow a certificate of acknowledgment of married woman under 3 & 4 Wm. 4, c. 74, to be filed, unless accompanied by affidavit of com- missioner that she is content to have the money paid over. In re Dowling, cxiv. 223 ; 18 C. B. N. S. 223. An order of reference with the enlargements of time for making award en- dorsed, may be made a rule of court without an affidavit of arbitrator or wit- ness verifying the dates. Roberts v. Evans, cxviii. 1 ; 6 B. & S. 1. V. Agreements. Affidavit required of authority to sign arbitration agreement for deponent and another, before it will be made rule of court. Re Aldington and Chesshire, cix, 375; 15 C. B.N. S. 375. VI. Process. (a) General matters. Mistake in name of defendant, in a summons, may be corrected before service without changing teste. Gibson v. Varley, xc. 49 ; 7 E. & B. 49. Summons to putative father, under 7 & 8 Vict. c. 101, need not issue imme- diately upon the application. Potts v. Cumbridge, xcii. 847 ; 8 E. & B. 847. The court will not rescind an order for a capias, under 1 & 2 Vict. c. 110, s. 3, where plaintiff has a cause of action, though different from that stated in the affidavit. Burns v. Chapman, xciv. 481 -, 5 C. B. N. S. 481. A foreign debtor, lured to England by fraud of plaintiff and arrested, dis- charged because of abuse of process. Stein v. Valkenhuysen, xcvi. 65 ; E., B. & E. 65. Registering a judgment, under 1 & 2 Vict. c. 110, s. 13, is not process within s. 211 of 12 & 13 Vict. c. 106. Fluester v. McClelland, xcviii. 357 ; 8 C. B. N. S. 357. Where summons, under 7 & 8 Vict. c. 101, is issued, but cannot be served, be- cause putative father has absconded, and then the justice dies, a summons issued after the twelve months before another justice, is invalid. Regina v. Pickford, ci. 77 ; 1 B. & S. 77. . Order will hot issue to compel attendance of witness in Ireland, in a compul- sory reference under Common Law Procedure Act, 1854. O'Flanagan v. Geo- ghegan, cxi. 636 ; 16 C. B. N. S. 636. Capias founded on same materials will issue against absconding debtor, dis- charged under 14 & 15 Vict. c. 52, because capias did not issue within seven days. Williams v. Gibbons, cxvi. 617 ; 4 B. & S. 617. The court has inherent power to prevent the abuse of its process. ' Carr v. Assurance Corporation, cxvii. 941 ; 5 B. & S. 941. 356 PRACTICE, VI. (6), 0), (d), VII. being good in such oases, under Act 1852. Jarman v. Lucas, cix. 474 ; 15 C. B. K. S. 474. (c) Service of process. Service of summons in bastardy case on putative father in Scotland, is insuffi- cient. Regina v. Lightfoot, lxxxviii. 822; 6 E. & B. 822. Service of summons against joint stock company by leave of Irish court by delivering copy to Dublin agent and mailing copy to manager in London, is good. Sheehy v. Life Assurance Co., lxxxix. 211 ; 2 C. B. N. S. 211. Qucere, whether the 9th sect, of 13 & 14 Vict. c. 18, authorizes substituted ser- vice in such a case. Ibid. Affirmed in Exchequer Chamber, xci. 597 ; 3 C. B. N. S. 597. To dispense with personal summons upon one of two partners, under Com- mon Law Procedure Act, it is not enough to show that he is abroad, has no resi- dence here, and that the other was served. Kitchin v. Wilson, xciii. 483 ; 4 C. B. N. S. 483. Sects. 18 & 19 of 15 & 16 Vict. c. 76, do not apply to the case of foreign cor- porations. Ingate v. Lloyd Austriaco, xciii. 704 ; 4 C. B. N. S. 704. Service of a writ of summons upon a director of a joint stock company duly registered, is not good. Towne v. Limerick Steamship Co., xciv. 730 ; 5 C. B. N. S. 730. Under s. 17 of the Common Law Procedure Act of 1852, the affidavit should satisfy the judge that all that could reasonably be done to serve defendant per- sonally, or find his dwelling-place, has been done. Davies v. "Westmacott, xcvii. 829 ; 7 C. B. N. S. 829. Service on defendant's agent in London, when defendant carries on a business there, is good, when he cannot be served personally, though the agent swears that defendant resided in Scotland when suit was commenced, and continues to reside there. Naef v. Mutter, civ. 817 ; 12 C. B. N. S. 817. Process served is not binding on an infant, as with married women, under Common Law Procedure Act 1852. Jarman v. Lucas, cix. 474 ; 15 C. B. N. S. 474. A railway company can only be served with summons in the county court at place of general management of business. Brown v. Railway Co., uxvi. 326 ; 4 B. & S. 326. (e) Proceedings to outlawry. Serrible, that outlaw should appear in person, but appearance by attorney is not subject of error. Solomon v. Graham, lxxxv. 309 ; 5 E. & B. 309. (d) Irregularities, when to be taken advantage of. Taking the declaration out of the office, when the affidavit upon which order for declaring was obtained discloses an irregularity, is a waiver. Bayne v. Slack, xci. 363 ; 3 C. B. N. S. 363. VII. The declaration and other pleadings. In an action for infringement of patent a clause in the particulars of breaches stating that they were given only as examples, and were not to preclude proof of infringement mentioned in former particulars, was stricken out. Type Founding Co. v. Richards, xcviii. 893 ; 8 C. B. N. S. 893. A party who has gone into equity cannot set up the same matter in a court of common law, under the Common Law Procedure Acts. Schlumberger v. Lister, cv. 855 ; 2 E. & E. 855. Reasonable efforts must be made to serve the declaration, before its service will be waived by the court, under sect. 18 of Common Law Procedure Act 1852. Thelwall v. Yelverton, cvi. 894; 13 C. B. N. S. 894. One who relies upon a foreign law is bound to bring it properly before the court and establish it in proof. Lloyd v. Guibert, cxviii. 100 ; 6 B. & S. 100. In an action on a life insurance policy, the plea having alleged an untrue answer by deceased to a question as to health, and set up that he had symp- toms of disease of the stomach, particulars as to the symptoms were required to be given. Marshall v. Emperor L. A. Society, cxviii. 886 ; 6 B. & S. 886. PEACTICE, VIII. (a), (&)— X. 357 VIII. Judgment by default. (a) Judgment for -want op a plea. Judgment signed, on ground that pleas not issuable opened and defendant let in on terms where some pleas bad, others good. Roberts v. Brett, lxxxiv. 534 ; 17 C. B. 534. (6) Under Common Lav Procedure Acts. Where the amount specially endorsed on the summons is reduced by subse- quent payment, judgment for -want of appearance should be entered only for the balance. Hodges v. Callaghan, lxxxix. 306 ; 2 C. B. N. S. 306. The affidavit in support of an application to be let in to defend, under s. 25 of 15 & 16 Vict. c. 76, must show the nature of the defence. Whiley v. "Whiley, xciii. 653 ; 4 C. B. N. S. 653. The case of debt on a judgment is within s. 27 of 15 & 16 Vict. c. 76. Hodsoll v. Baxter, xcvi. 884 ; B., B. & E. 884. After personal service of summons on defendant abroad, the court, under spe- cial circumstances, permitted notice of the declaration to be given, by sticking it up in the master's office. Bates v. Bates, xcix. 561 ; 9 C. B. N. S. 561. And upon appearance by attorney, after time allowed for pleading, refused to stay proceedings. Ibid. Under Common Law Procedure Act 1854, s. 79, the court will not, by injunc- tion, compel a party, even though personally bound, to do anything which would amount to a trespass against another. L. & S. W, Railway Co. v. Webb, cix. 450; 15 C. B. N. S. 450. IX. Trial by proviso. A plaintiff is entitled to same time for proceeding to trial, after new trial granted, as he had before. Oakeley v. Ooddeen, ciii. 806 ; 11 C. B. N. S. 806. X. Stay of proceedings. Procuring the acceptance of defendant's draft for part of the claim, and retain- ing it, suspends to that extent the right of action, and on payment of the balance, being 5*., the court stayed the proceedings. Stuart v. Cawse, xciv. 737 ; 5 C. B. K. S. 737. Court refused to stay proceedings, in an action for goods sold in England and delivered in India, the defendant having been discharged, under 11 & 12 Vict. c. 21. Reynolds v. Goodwin, xcv. 370 ; 6 C. B. N. S. 370. An action pending for the same subject-matter in the United States is no ground for stay of proceedings. Cox v. Mitchell, xcvii. 55; 7 C. B. N. S. 55. The court refused to stay proceedings on a judgment, on the ground that an interim order of protection had been obtained from the commissioner in bank- ruptcy. Naylor v. Mortimore, c. 566; 10 C. B. N. S 566. Consequently when the plaintiff is not in default defendant is not entitled to take down the record for trial by proviso. Ibid. Granted until security for costs given, where plaintiff was foreigner not per- manently residing in the jurisdiction and who had conveyed away his interest in the result. Zychlinski v. Maltby, cviii. 322 ; 14 0. B. N. S. 322. Qucere, whether when an appeal is pending on a foreign judgment, though no bar to the action, it would justify a stay of proceedings. Scott v. Pilkington, ex. 11; 2 B. &S. 11. Proceedings stayed by the court out of which the writ issued, in an action against a shareholder of a joint stock company where the winding-up order had been made and an official manager appointed. Thomas v. Wells, cxi. 508 ; 16 C. B. N. S. 508. Rule to stay, until payment of costs of former action, discretionary. Prowsc ». Loxdale, cxiii. 896 ; 3 B. & S. 896. Member of cost book company, which after he had transferred his interest, was registered in joint stock company, is liable as partner for debts prior to registry, and proceedings against him by creditor will not be stayed. Lanyon v. Smith, radii. 938 ; 3 B. & S. 938. 358 PKACTICE, XI.— XIII. (a);(b), XIV. (a). XI. Consolidation op actions. Actions by the same plaintiff, on the same policy, against several defendants members of a mutual insurance company, consolidated on terms. Lewis v. Barkes, xciii. 330 ; 4 C. B. N. S. 330. Where the plaintiff, an attorney, sent at different times two separate bills, and before the expiration of a month from the delivery of the last, proposed that defendant should waive the objection of time and accept process in one action, which defendant refused to do, it was held that the two actions commenced in consequence should be consolidated and the whole cost be included in one allo- catur. Beardsall v. Cheatham, xcvi. 243 ; E., B. & E. 243. XII. Interpleader. Suit by the holder against the acceptor of a draft sent by a husband to his ' wife drawn to her order, and which he had notified acceptor not to pay, is not a case for an interpleader. Baker v. Bank of Australasia, lxxxvii. 515 : 1 C. B. N. S. 515. Where each party partially successful, costs are to be taxed on that principle without reference to which was plaintiff or defendant. Clifton v. Davis, lxxxviii. 392 ; 6 E. & B. 392. Creditor cannot levy on goods conveyed by bill of sale, because of a prior bill of sale void as to creditors but good as to others. Edwards v. English, xc. 564 ; 7 E. & B. 564. An equitable claim is not the subject of an interpleader summons. Hurst v. Sheldon, cvi. 750 ; 13 C. B. N. S. 750. Interference with sheriff after interpleader is contempt of court, under 1 & 2 Wm. 4, c. 58. Cooper v. Asprey, cxiii. 932 ; 3 B. & S. 932. Error lies on a judgment on an interpleader issue. Gumm v. Tyrie, cxviii. 298 ; 6 B. & S. 298. XIII. Payment into court. Where in action for nuisance defendant pleaded not guilty as to grievances before a certain date, and as to subsequent grievances paid a sum of money in- to court, the court refused to strike out the pleas. Fountain v. Chamberlain, Ixxxvi. 660 ; 18 C. B. 660. Defendant not required to state as to what parts of claim payment made, save in exceptional cases. Shipbuilding Co. v. Steam Packet Co., c. 375 : 10 C. B. N. S. 375. (a) Effect of payment into court. Where money has been paid into court under one count and taken out by plaintiff, it may be deducted from the damages recovered on another inconsistent count. Carr v. Assurance Corporation, cxvii. 941 ; 5 B. & S. 941. (6) When money paid can be taken otjt. Wife of a lunatic, who has no committee, permitted to take his money out of court. . Gleddon v. Trebble. xcix. 367 ; 9 C. B. N. S. 367. Payment of money into court by defendant under judge's order and subsequent bankruptcy of defendant and verdict against him, money can be taken out by plaintiff. Murray v. Arnold, cxiii. 287 ; 3 B. & S. 287. It is not "security for a debt," within 12 & 13 Vict. c. 106, s. 184. Ibid. It was money paid in to abide the event of a suit. Ibid. It seems, that the plaintiff was not a creditor having a security for a debt, within 12 & 13 Vict. c. 106, s. 184. Ibid. Money taken out of court, less than 201., is not recovered, within 13 & 14 Vict. c. 61, s. 11, and party not entitled to costs. Boulding v. Tyler, cxiii. 472 : 3 B. & S. 472. XIV. The trial and proceedings in relation thereto. (a) Change of venue. An attorney suing in his own right has the privilege of retaining the venue in Middlesex. Grace v. Wilmer, lxxxviii. 982 ; 6 E. & B. 982. PRACTICE, XIV. (a), (J), (e), (d), (e). 359 Not permitted, unless there is a great preponderance of convenience. Helliwell v. Hobson, xci. 761 ; 3 C. B. N. S. 761. After defendant is under terms to take short notice of trial, it requires special circumstances to induce the court to change the venue. Jackson v. Kidd, xcviii. 354; 8 C.B.N. S. 354. Court will not interfere with change of venue by judge at chambers, unless it be shown that he has acted on a misconception. Shuster v. Wheelwright, xcviii. 383-; 8C. B. N. S. 383. Court of Queen's Bench has inherent power to change the venue in the trial of a quo warranto information. Clerk v. The Queen, ci. 967 ; 1 B. & S. 967. Not changed to place where action arose, though all of defendant's witnesses there, if plaintiff, a naval officer, and likely to be prevented from attending, if changed. Channon v. Parkhouse, cvi. 341 ; 13 C. B. N. S. 341. Venue will not be changed from place where cause of action arose, unless there is a preponderance of inconvenience shown. Blackman v. Bainton, eix. 432; 15 C. B. N. S. 432. Mere fact that defendant in libel suit is an editor, has considerable influence, and has evinced a disposition to use it against plaintiff, not sufficient. Walker v. Brogdon, cxii. 571 ; 17 C. B. N. S. 571. But it seems, that if he published anything relating to the subject-matter of the action, it would be otherwise. Ibid. Semble, that if one party has acted oppressively by the retention of all the counsel, the court will interfere by changing the venue. Curtis v. Lewis, cxvii. 568; 5B. &S. 568. (b) Special jury. Sheriff not entitled to fees from party having his case tried by special jury. BenneH v. Thompson, lxxxviii. 683 ; 6 B. & B. 683. Court cannot grant a rule for a special jury before issue joined, though the party being under terms, there would not be time after joinder. Dresser v. Nor- man, xcv. 427 ; 6 C. B. N. S. 427. Under Common Law Procedure Act 1852, ss. 112, 113, a cause marked for trial by a special jury may, in the absence of a special jury, be tried before a common jury. Cawley v. Knowles, cxi. 107 ; 16 0. B. N. S. 107. (c) Postponement of cause. Not permitted because of amendment unless injustice done. Tennyson v. O'Brien, lxxxv. 497 ; 5 E. & B. 497. Not granted on the ground of absence of a material witness, where there has been laches in producing his testimony Wright v. McGuffie, xciii. 441 ; 4 C. B. N. S.441._ The sessions may adjourn an appeal even after hearing commenced and evi- dence taken. Regina v. Cambridge Union, ci. 61 ; 1 B. & S. 61. Sessions has power to adjourn an appeal from order of removal from October to January Sessions. Regina v. Skircoat, ex. 185 ; 2 B. & E. 185. Where trial is put off by an order of a judge, there must be a new notice of trial or the trial will be set aside. Cawley v. Knowles, cxi. 107 ; 16 C. B. N. S. 107. (d) Order or addressing jury. In appeals, under 20 & 21 Vict. c. 43, the appellant in the Common Pleas be- gins. Gardner v. Whitford, xciii. 665 ; 4 C. B. N. S. 665. On cross demurrers, plaintiff begins. Blackburn v. Parkinson, cii. 71 ; 1 E. & E. 71. (e) Nonsuit. Where the plea traversed the averment of the declaration, that defendants received the goods as common carriers, and a special contract, whose conditions were reasonable, was proven, plaintiff nonsuited. White v. G. W. Railway Co., Ixxxix. 7 ; 2 C. B. N. S. 7. Defendant having taken a nonsuit in the absence of plaintiff, without the jury being sworn, the entry was expunged and the cause stricken out, and the costs of the day and motion ordered to be costs in the cause. Warne v. Hill, xcvii. 726; 7 C.B.N. S. 726. 360 PRACTICE, XIV. (c), (/), (>)— XVII. Where plaintiff was nonsuited, because of the absence of his attorney, a new trial was granted, on condition that the attorney himself pay the costs. Townley v. Jones, xcviii. 289 ; 8 C. B. N. S. 289. Where, in an action for obstructing a footway in Essex, the county named in the margin of the declaration is Surrey, it is ground for nonsuit. Richardson v. Locklin, cxviii. 777 ; 6 B. & S. 777. (/) Inferior courts. Judge of county court having disposed of motion for new trial, cannot after- ward rehear the case. Great Northern Railway Co. v. Mossop, lxxxiv. 130 ; 17 C. B. 130. Quaere, as to right of inferior court to grant new trials. Ibid. Certificate of judge, under 13 & 14 Vict. c. 61, s. 12, that it appeared to him there was sufficient reason for bringing suit in superior court, may be given after the trial. Bennett v. Thompson, lxxxviii. 683 ; 6 E. & B. 683. (g) Case stated. Where a difficult question arose on rule for execution against shareholder in joint stock company, court ordered special case to be stated. Powis v. Harding, ixxxix. 405 ; 2 C B. N. S. 405 ; Fry v. Harding, lxxxix. 407 ; 2 C. B. N. S. 407. Semble, that the practice should be, where the justices have not refused to state the case, but there is a dispute as to its explicitness, to apply at the argument to have it sent back for amendment. Christie v. St. Luke's, Chelsea, xcii. 992 ; 8 E. & B. 992. Application sent back for amendment a case stated, on appeal from justices, may be made before argument. Yorkshire Tire and Axle Co. v. Rotherham Board of Health, xciii. 362; 4 C. B. N. S. 362. A case stated under 20 & 21 Vict. c. 43, s. 2, will not be allowed where justices have no jurisdiction. Ex parte May, ex. 426; 2B. & S. 426. Amendment of case stated as to conviction by magistrates, under 20 & 21 Vict, c. 43, allowed. Hodgson v. Little, cxi. 198; 16 C. B. N. S. 198. Upon case stated with power to draw inferences of fact, reasons for conclusions of fact will not be stated. Grainger v. Martin, cxvi. 9 ; 4 B. & S. 9. Where justices dismiss an information on the ground that one of them is inter- ested, thev ought not to state a case. Wakefield v. W. R. & G. Railway Co., cxviii. 794 ; 6 B. & S. 794. XV. Special case. The recorder having stated a case by consent on an appeal from a conviction, under 5 & 6 Win. 4, c. 76, s. 90, the court decided the question though certiorari taken away by the statute. Regina v. Dickenson, xc. 831 ; 7 E. & B. 831. The court refused to set aside a judgment on the ground that the plaintiff had not taken necessary steps to set down for argument the special case stated, sub- ject to which judgment was signed, the defendant declining to pay a moiety of referee's fee. Howkins v. Bennett, xcv. 386 ; 6 C. B. N. S. 386. Quaere, whether a special case can be amended without consent after judgment and writ of error. Notman v. Anchor Assurance Co., xcv. 536 ; 6 C. B. N. S. 536. Court cannot amend, without consent of parties, a case stated under Common Law Procedure Act of 1852, so as to raise a different question from the one con- templated. Mersey Dock's Trustees v. Jones, xcviii. 114; 8 C. B. N. S. 114. Affirmed in Exchequer Chamber, c. 872; 10 C. B. N. S. 872. XVI. Arrest oe judgment. Not allowed where the defendant, having demurred, was in no peril. Roberts v. Great Western Railway Co.. xciii. 506 ; 4 C. B. N. S. 506. XVII. Certiorari. Where magistrate held that he was bound by bad by-law, under Public Health Act, 11 & 12 Vict. c. 63, and refused to hear objection, certiorari granted. Re- gina, v. Wood, lxxxv. 49 ; 5 E. & B. 49. Semble, that had he decided by-law to be good, it would have been granted. Ibid. PKACTTCE, XVII., XVIII. 361 Discretion of a judge exercised in permitting one of three defendants to remove indictment by certiorari, not reviewable. Regina v. Wilks, lxxxv. 690 ; 5 B. & B. 690. It is a reasonable condition, in granting certiorari to one of two indicted for conspiracy, that he should enter into recognisance for costs, if either convicted. Regina v. Jewell, xc. 140; 7 E. & B. 140. On certiorari bringing before Exchequer Chamber a conviction for obstructing highway, confirmed by sessions subject to a case, the court considered nothing outside of the case, Regina v. Thomas, xc. 399 ; 7 E. & B. 399. Indictment against corporation may be removed by certiorari to Queen's Bench, by prosecutor, without his recognisance, under 16 & 17 Vict. c. 30. Regina v. Mayor of Manchester, xc. 453 ; 7 E. & B. 453. Lies where jury of compensation, under 8 & 9 Vict. c. 18 & 20, have impro- perly considered one claim among others, though the fact does not appear on the face of the proceedings. Re Penny, xc. 660 ; 7 E. & B. 660. Lies to bring up an order of the Quarter Sessions, void because some of the justices were interested, for the purpose of quashing it. Ex parte Hopkins, xcii. 1094 ; 8 E. & B. 1094. Notice of appeal having been given, but the judge having died before the case could be settled, the court refused a certiorari. McCallum v. Cookson, xciv. 498 ; 5 C. B. N. S. 498. Where an appeal is determined by interested magistrates, the proper course is to quash on certiorari. In re Hopkins, xcvi. 101 ; E., B. & E. 101. Court refused a writ of error and a certiorari upon a conviction of a criminal offence by a colonial court, there being no fiat from the attorney-general. Ex parte Lees, xcvi. 828 ; E., B. & E. 828. Where defendant has removed a cause from an inferior court by a certiorari, the plaintiff is not bound to follow his suit. Garton v. G. W. Railway Co., cii. 258 ; 1 E. & E. 258. Order of justices, made without authority, removed by certiorari. Regina v. Fisher, cxiii. 191 ; 3 B. & S. 191. Certiorari for conviction, under 19 Geo. 2, e. 21, taken away. Regina v. Scott, cxvi. 368 ; 4 B. & S. 368. Certiorari, when made in time, will issue to justices interested in conviction under 24 & 25 Vict. c. 109, s. 20, although an appeal be pending in another court. Regina v. Allan, cxvi. 915 ; 4 B. & S. 915. XVIII. Other matters. A repetition of the endorsement on the back of the writ, with the date added, is no compliance with an order for further particulars. Bayntun v. Satchell, Ixxxiv. 383 ; 17 C. B. 383. That there can be no execution no reason for refusing judgment. Kendall v. King, Ixxxiv. 483 ; 17 C. B. 483. On a writ of trial before sheriff, record may be withdrawn. Shaw v. Owen, Ixxxiv. 524 ; 17 C. B. 524. Case insufficiently set forth by county sent back to be restated. Railway Coi v. Dunham, Ixxxvi. 826 ; 18 C. B. 826. Plaintiff not entitled to be heard on demurrer, when on his default, defendant delivered all the paper books, and his attorney being absent, court refused to grant time. Simmons v. Siggers, Ixxxvii. 583 ; 1 C. B. N. S. 583. In an action for assault, defendant may give evidence of an assault by plain- tiff without a plea of son assault demesne. Syers v. Chapman, lxxxix. 438 ; 2 C. B. N. S. 438. Where there was a verdict subject to an award, and the award was afterward in favor of plaintiff, held he could sign judgment before the time for moving to set it aside had elapsed. O'Toole v. Pott, xc. 102 ; 7 E. & B. 102. Where at close of testimony for defendant, who opened, the court refused verdict for plaintiff but reserved leave to move, and testimony was afterward taken for plaintiff and defendant, upon which jury found for defendant, held, that plaintiff could not object to the subsequent testimony being considered. Allen v. Cary, xc. 463 ; 7 E. & B. 463. In ejectment by heir-at-law against devisee, the latter is entitled to begin. Sutton v. Sadley, xci. 87 ; 3 C. B. N. S. 87. 362 . PKACTICE, XVIII. Where the court delayed to enter judgment on a nonsuit until after death of plaintiff, it was entered nunc pro tunc, though -will not proved. Moor v. Koberts, xei. 830 ; 3 C. B. N. S. 830. Under 14 & 15 Vict. c. 99. s. 6, there may be inspection by plaintiff of papers in possession of defendant showing results of experiments to test the quality of the article furnished, though defendant's case be disclosed. London Gaslight Co. v. Chelsea, xcv. 41 1 ; 6 C. B. N. S. 411. Inspection of a letter written to the other side, upon affidavit of belief that it would be relied upon to support a plea, refused, the plea not purporting to rely on a written instrument. Shadwell v. Shadwell, xcv. 679 ; 6 C. B. N. S. 679. Where evidence given in support of enough of the allegations of a plea to make a good defence, the case should be given to the jury though the whole not proven. Jones v. Williamson, xcv. 924 ; 6 0. B. N. S. 924. Where one of two joint plaintiffs executed a release by which the other was surprised at the trial, the latter may examine him to discover whether it was obtained by fraud. Robinson v. Vernon, xcvii. 231 ; 7 C. B. N. S. 231. Defendant has a common law right to inspect letters written by him to plain- tiff, of which he has no copy, containing the agreement sued upon. Price e. Harrison, xcviii. 617 ; 8 C. B. N. S. 617. New trial having been granted plaintiff ex delntojustitice, the court refused to compel him to proceed to a second trial within a time limited. Oakeley v. Ooddeen, xcviii. 895; 8 C. B.N. S. 895. Where proceedings in error by infant defendant, on the ground that he had appeared by attorney, the court cannot amend by alleging appearance by guardian, but may set aside proceedings and order such appearance. Carr v. Cooper, ci. 230 ; 1 B. & S. 230. One who has obtained leave to defend is not confined at the trial in the county court to the ground set forth in his affidavit. Saul v. Jones, cii. 59 ; 1 E. & E. 59. Where plaintiff having commenced proceedings in law and equity, elects under Common Law Procedure Act of 1852 to proceed in equity, defendant may insist on those in law being brought to an end. Mortimore v. Soares, cii. 399 ; 1 E. E. 399. In an action for an alleged libel, the defendant was allowed to take fac simile copies by photograph or otherwise of the documents referred to in declaration. Davey v. Pemberton, ciii. 628 ; 11 C. B. N. S. 628. The court refused to expunge the registration of a decree for alimony under the Divorce Act. Ex parte Holden, cvi. 641 ; 13 C. B. N. S. 641. Rule for nonsuit, after verdict for defendant, made absolute upon special cir- cumstances, but plaintiff obliged to pay costs of rule and former trial. Sillen v. Holloway, cviii. 336 ; 14 C. B. N. S. 336. How far court will order production of documents, under 50th sect, of Com- mon Law Procedure Act. Woolley ». Pole, cviii. 538 ; 14 C. B. N. S. 538. Where the object is clearly fishing it will not be allowed. Ibid. When bill of particulars and inspection of documents will be ordered in equit- able plea. Owen v. Nickson, cvii. 602 ; 3 E. & E. 602. What interrogatories not allowed in slander. Stern v. Sevastopulo, cviii. 737 ; 14 C. B. N. S. 737. Interrogatories, under Common Law Procedure Act 1854, s. 51 , allowed, though an affirmative answer would disclose fraud in defendant. Goodman v. Holroyd, cix. 839 ; 15 C. B. N. S. 839. In action of slander, commission to examine witnesses in Australia allowed on affidavit of what witnesses expected to prove. Barry v. Barclay, cix. 849 ; 15 C. B. N. S. 849. Inspection of books allowed in so far as party is interested. Bull v. Clarke, cix. 851; 15 C. B. N. S. 851. Whenever the issues can be distributed, and some of them are found for de- fendant, he is entitled to costs on that part on which he succeeds. Paterson v. Harris, ex. 814 ; 2 B. & S. 814. Under Common Law Procedure Act 1854, s. 50, the party being unable, as a cor- poration, to make an affidavit, discovery of documents may be had upon affidavit of their attorney. Kingsford v. G. W. Railway Co., cxi. 761 ; 16 C. B. N. S. 761. PRACTICE, XVIII. PRESCRIPTION. 363 Where verdict has been entered against a defendant substituted for original defendant, when there is suspicion of collusion, no verdict will be entered for original defendant. Podniore v. Schmidt, cxii; 725 ; 17 C. B. N. S. 725. PREROGATIVE. Property occupied as a post-office for service of crown is not rateable. Smith v. Guardians of Birmingham, xc. 483 ; 7 B. & B. 483. The queen's carriage and horses, when driven by the queen's coachman, by the queen's permission, though not on the queen's business, are exempt from turnpike tolls. Westover v. Perkins, cv. 57; 2 E. & E. 57. Crown may demur and plead to petition of right, under 23 & 24 Vict. c. 34, at same time. Tobin v. The Queen, cviii. 505 ; 14 C. B. N. S. 505. And all the allegations may be put in issue by a general traverse. Ibid. Quaere, whether the soil of lakes prima facie belongs to the crown or to owners of the land or manors on either side. Marshall v. Steam Nav. Co., cxiii. 732 ; 3 B. & S. 732. Crown not being mentioned in statute is not bound by it : Per Blackburn, J. Mersey Docks v. Cameron, cxiv. 867 ; 18 C. B. N. S. 867. Bed of navigable river, where there is tide of estuaries or arms of the sea, belongs to the crown, and if granted away is subject to right of navigation, which includes anchorage. Free Fishers, &c, v. Gann, cxv. 803 ; 19 C. B. N. S. 803. Reversing s. c. in C. P., ciii. 387 ; 11 C. B. N. S. 387 ; and in Ex. Ch., cvi. 853 : 13C. B. N. S. 853. The crown is not subject to tolls imposed by statute unless specially named. Weymouth v. Nugent, cxviii. 22 ; 6 B. & S. 22. Letters patent do not preclude the crown from the use of the invention though it has not the assent of the patentee. Feather v. The Queen, cxviii. 257 ; 6 B. & S. 257. Petition of right does not lie against the crown in case of an alleged wrong. Ibid. PRESCRIPTION. A common, which has been in existence over thirty years, may be defeated by showing that it could not have had a legal origin. Mill v. Commissioners of New Forest, lxxxvi. 60: 18 C. B. 60. Statute requires user as of right for forty continuous years next before suit. Battishill v. Reed, lxxxvi. 696 ; 18 C. B. 696. Right of way by prescription defeated by occupation of both properties by one tenant within the forty years. Ibid. Prescription to work mines, without leaving support to the surface, and with- out compensation for injury, is unreasonable and bad. Blackett v. Bradley, ci. 940; 1 B. & S. 940. The right to take tolls for anchorage, below low-water mark, may be prescribed for. Free Fishers v. Gann, ciii. 388 ; 12 C. B. N. S. 388. Affirmed in Ex. Ch. cvi. 853 ; 13 C. B. N. S. 853. Reversed in House of Lords, cxv. 803 ; 19 C. B. N. S. 803. Under 2 & 3 Wm. 4, c. 71 (The Prescription Act), twenty years' enjoyment, without interruption, will give right to use of light, even to one tenant as against another of the same landlord. Frewen v. Philipps, ciii. 449; 11 0. B. N S. 449. Claim of a prescriptive right in owners of close A. to enter close B., belonging to a third person, and to cut down and carry away all trees " as to the said close A. appertaining," is void, as being too large. Bailey v. Stephens, civ. 91 ; 12 C. B. N. S. 91. Prescription Act, 2 & 3 Wm. 4, c. 71, destroys the custom to rebuild to any 364 PRESCRIPTION. PROHIBITION. height on ancient foundations in city of London. Cooper v. Hubbuck, civ. 456 ; 12 0. B. N. S. 456. Under this act, twenty years' enjoyment, before some action in which claim is brought in question, is enough. Ibid. Claim by prescription of a profit a prendre in the fluctuating body of inhab- itants of a township, bad. Constable v. Nicholson, cviii. 230 ; 14 C. B. N. S. 230. Such persons not being a corporation are incapable of taking by grant. Ibid. Owners of houses may have by immemorial enjoyment right to erect stalls in front of houses on market days. Ellis v. Mayor of Bridgnorth, cix. 52 ; 15 C. B. N. S. 52. Removal of market to another place is an unlawful disturbance of such right. Ibid. Action will lie for unlawful disturbance, by reason of removal of market-house, of light of owners of houses to erect stalls on market days existing immemorially. Ibid. The Prescription Act, 2 & 3 Wm. 4, s. 71, does not apply to a claim for free fishery in the waters of another. Shuttleworth v. Le Fleming, cxv. 687 ; 19 C. B. N. S. 687. Where the enjoyment of an artificial stream is precarious and by permission of the owner of the soil, the right to the flow of water cannot be acquired under Prescription Act, 2 & 3 Wm. 4, c. 71. Gaved v. Martyn, cxv. 732 ; 19 C. B. N. S. 732. The enjoyment must not be a mere enjoyment, it must be claimed as a right. Ibid. One having right of digging clay has sufficient occupation to claim a right to a watercourse, under 2 & 3 Wm. 4 c. 71. Ibid. PRISONS. An order of the Quarter Sessions, under 4 Geo. 4, c. 6 4, will excuse the governor of a house of correction in Middlesex from receiving a prisoner committed by justices, under 20 & 21 Vict. c. 118, for nonpayment of rates. Regina v. Cold- bath Fields Prison, cxviii. 352 ; 6 B. & S. 352. An order for the commitment of a person in Middlesex for the nonpayment of rates should be, under 52 Geo. 3, c. 209, to Whitecross Street Prison. Regina v. Whitecross Street Prison, cxviii. 371 ; 6 B. & S. 371. PRIZE. Mere carrying of improper goods and papers is only evidence from which forfeiture can be inferred. Hobbs v. Henning, cxii. 791 ; 17 C. B. N. S. 791. Judgment of court not conclusive unless grounds appear and sustain it. Ibid. Facts decided cannot be pleaded in estoppel, but must be given in evidence. Ibid. PROHIBITION. Where it appeared on a plaint for false imprisonment, that defendant had di- rected police to arrest plaintiff on unfounded charge, but the judge gave damages as for malicious prosecution, prohibition refused. Chivers ». Savage, lxxxv. 697 ; 5 B. & B. 697. PROHIBITION. PUBLIC COMPANY. 365 An order for a prohibition need not state the grounds. Eversfield v. New- man, xciii. 418 ; 4 C. B.N. S. 418. _ Notice of appeal having been given but tho judge having died before a case could be settled, the court refused a prohibition to prevent the new judge from proceeding. McCallum v. Cookson, xciv. 498 ; 5 C. B. N. S. 498. Prohibition will lie against Enclosure Commissioners to restrain, when they have not followed the requirements of the statute. Church v. Enclosure Com- missioners, ciii. 664; 11 C. B. N. S. 664. A writ of prohibition will issue after an appeal, from Consistory Court to Court of Arches for refusal to admit a responsive answer, where refusal is caused by wrong construction of a statute. White v. Steele, civ. 384 ; 12 C. B. N. S. 384. Notice of an appeal to the Privy Council will not prevent the granting of a writ of prohibition to Court of Arches. Ibid. Plaintiff recovering a verdict is not entitled to the costs of the proceedings in the Ecclesiastical Court. "White v. Steele, cvi. 231 ; 13 C. B. N. S. 231. Prohibition lies to a court of criminal jurisdiction. Kegina v. Harford, cvii. 115; 3E. &E. 115. A coroner will be prohibited from holding an inquest to inquire into the ori- gin of a fire where no death occurred. Ibid. Prohibition will not lie where the county court clearly had jurisdiction. Nor- ris v. Carrington, cxi. 396 ; 16 C. B. N. S. 396. Where Court of Divorce and Matrimonial Causes has ordered costs to be paid by co-respondent, Court of King's Bench will not interfere by writ of prohibi- tion. Forster v. Forster, cxvi. 187 ; 4 B. & S. 187. Quaere, whether a writ of prohibition will lie to that court. Ibid. PUBLIC COMPANY. The rule that an allottee of shares is entitled to recover back deposit, on failure of directors to carry out the scheme, extends to cost-book mine. Johnson v. Gos- lett, lxxxvi. 728 ; 18 C. B. 728. Affirmed in Exchequer Chamber, xci. 569 ; 3 C. B. N. S. 569. All seven directors liable, though account kept at bankers, in the names of five only. Ibid. Engineer of projected company employed plaintiff to build a cistern, and it was erected on land of the defendant, who was one of the provisional committee : held, no evidence that the work was done by his authority. Patrick v. Reynolds, lxxxvii. 727 ; 1 C. B. N. S. 727. Contracts of a dock company, not a trading corporation, must be under seal. London Dock Co. v. Sinnott, xcii. 347 ; 8 E. & B. 347. The Companies' Clauses Consolidation Act, 8 & 9 Vict. c. 16, authorizes an action for calls against a shareholder not a subscriber. Wolverhampton W. Co., v. Hawkesford, xcv. 336 ; 6 C. B. N. S. 336. Quaere, whether a cost-book mining company is a public company, within 1 & 2 Vict. c. 110, s. 14. Nicholls v. Kosewarne, xcv. 480; 6 C. B. N. S. 480. Quaere, whether one whose vendee has paid and accepted the transfer for shares without registering, holds shares in his own right, within that act. Ibid. An action for services as clerk and attorney to commissioners under a local act, lies against succeeding commissioners. Hall v. Taylor, xevi. 107 ; E., B. & A corporation aggregate is liable to be sued for malicious acts of interference with defendant by its servants if these acts are within the scope of its formation. Green v. London General Omnibus Co., xcvii. 290 ; 7 C. B. N. S. 290. There may be a holder of shares, under 8 & 9 Vict. c. 16, s. 27, without a reg- ister of shareholders authenticated by the seal of the company at an ordinary meeting. Wolverhampton N. W. Co. v. Hawksford, xcvii. 795 ; 7 C. B. N. S. 795. A register made, after the time prescribed in the 9th sect., may be valid. Ibid. 366 PUBLIC COMPANY. Putting the name of a party with others, as shareholders, on a sheet of paper, and sealing it, no shares being numbered or appropriated, does not constitute him a shareholder. Ibid. No recovery against company on a contract for work and materials, percentage on outlay, or money loaned on debenture, where plaintiff as director voted on the contract, and it was not afterward ratified by shareholders. Stears v. South Essex Gaslight Co., xcix. 180 ; 9 C. B. N. S. 180. Trustees and commissioners acting gratuitously in the execution of acts of parliament for benefit of the public are not responsible for negligence of work- men or contractors employed by them. Holliday v. St. Leonards, ciii. 192; 11 C. B. N. S. 192. The costs, charges and expenses, incident to passing Metropolitan Gas Act (23 & 24 Vict. c. 125), are to be paid by Metropolitan Board of Works to the pro- moters of the act and not to their solicitor, a parliamentary agent. Wyatt v. Board of Works, ciii. 744 ; 11 C. B. N. S. 744. The price for gas supplied is regulated by the Metropolis Gas Act (23 & 24 Vict. c. 125). G. C. Gas Consumers' Co. o. Clarke, ciii. 814 ; 11 C. B. N. S. 814. Affirmed in Exchequer Chamber, cvi. 838 ; 13 C. B. N. S. 838. A deposit of certificates of a gas company, as collateral security for a loan, is a valid transfer as against pledgor's subsequent assignee. Broadbent v. Varley, civ. 214 ; 12 C. B. N. S. 214. A public body, acting gratuitously for benefit of public, is responsible for neg- ligent performance of its duties. Clothier v. Webster, civ. 790 ; 12 C. B. N. S. 790. An action for negligence will lie against a contractor employed by a public body, which is acting gratuitously for benefit of public. Ibid. Not liable for injury sustained by exercise of statutory powers where injury is not actionable apart from the statute. New River Co. v. Johnson, cv. 436 ; 2 E. & E. 436. Empowered to take tolls Ivy statute when not bound to exact uniform toll from all persons. Market Co. v. Steamboat Co., cvii. 365 ; 3 E. & E. 365. Deductions allowable to, from rate. Regina v. Railway Co., cvii. 392; 3 E. & E. 392. Rateable value of railway station fixed by rate paid for use of by another company, not by actual value of station, Regina v. Fletton, cvii. 450 ; 3 E. & E. 450. Company liable to an action of false imprisonment, if imprisonment be made by its authority. Goff v. G. N. Railway Co., cvii. 672 ; 3 E. & E. 672. But authority of person making arrest to do so must be shown. Ibid. Court will not grant a scire facias against a shareholder, unless satisfied that he is a shareholder. Edwards v. Railway Co., cviii. 526 ; 14 C. B. N. S. 526. Re Henry Clark, cviii. 676 ; 14 C. B. N. S. 676. Liability of directors for contracts made by the secretary, under their sanction. Collingwood v. Berkely, cix. 145 ; 15 C. B. N. S. 145. By 7 & 8 Vict. c. 3, s. 50, and 8 & 9 Vict. c. 20, equality of tolls required to be charged by railway companies. Baxendale v. Railway Co., cxi. 137 ; 16 C. B. N. S. 137 ; affirming s. c. cviii. 1 ; 14 C. B. N. S. 1. Money had and received will lie to recover back tolls unlawfully charged. Ibid. On call for shares by winding-up liquidator, set-off allowed of claims against the company. Mining Co. v. Sutton, cxiii. 321 ; 3 B. & S. 321. Liability of railway company for negligence in not providing proper means of alighting at terminus. Foy v. Railway Co., cxiv. 225 ; 18 C. B. N. S. 225. Qucere, as to duty of railway company, having running powers over another's road, as to adaptability of engines and carriages. Graham v. Railway Co., cxiv. 229 ; 18 C. B. N. S. 229. Qucere, As to the extent of obligation of railway company to place guards at level crossings. Bilbee v. Railway Co., cxiv. 584; 18 C. B. N. S. 584. Declaration of value of animals, under 17 & 18 Vict. c. 31, s. 7, must be such as to convey distinct intimation that sender intends to hold them for a higher sum than bOl. Robinson v. Railway Co., cxv. 51 ; 19 C. B. N. S. 51. Extent of duty of railway company to have train provided for passenger who has taken a ticket. Hurst v. Railway Co., cxv. 310; 19 C. B. N. S. 310. PUBLIC COMPANY. QUARE IMPEDIT. 367 " Ordinary luggage" does not include title deeds and money carried by attor- ney for trial at court. Phelps v. Railway Co., cxv. 321 ; 19 C. B. N. S. 321. Railway company not liable to a person who is not a party to the contract for breach of duty to another, even though the latter be a servant of person suing. Alton v. Railway Co., cxv. 213 ; 19 C. B. N. S. 213. Railway company liable for faulty construction of bridge provided for con- venience of passengers. Longmore v. Railway Co., cxv. 183 ; 19 C. B. N. S. 183. In absence of express contract railway company must send goods by usual route. Hales v. Railway Co., cxvi. 66 ; 4 B. & S. 66. Drainage commissioners acting as trustees for a public purpose, without reward, are not liable for damages resulting from the negligence of their servants. Coe v. Wise, cxvii. 440 ; 5 B. & S. 440. The commissioners, under 10 & 11 Vict. c. 34, are bound to place fences along footways for the protection of passers, and if negligent therein may be sued without affirmatively showing money in their hands. Ohrby v. Ryde Commis- sioners, cxvii. 743 : 5 B. & S. 743. QUAKERS. Magistrates cannot summarily enforce payment of a church rate by a quaker, where title bona fide in question. Backhouse v. Bishopwearmouth, xcix. 315 ; 9 C. B. N. S. 315. The proviso of 53 Geo. 3, c. 127, s. 7, extends to Quakers. Pease v. Chaytor, ci. 658 ; 1 B. & S. 658. QUARE IMPEDIT. Ordinary cannot controvert patron's title to present, by setting up title of third person, as of queen, by lapse. Storie v. Bishop of Winchester, lxxxiv. 653 ; 17 C. B. 653. ' Where incumbent of parish church presents himself to district parish church, the value of both being over 1000Z., parish church becomes ipso facto void. Ibid. No right of the crown to present to an English benefice, on the appoint- ment of the incumbent to a bishopric in New Zealand. Regina v. Eton College, xcii. 610 : 8 E. & B. 610. This right, on appointment to an English bishopric, not barred by previous grant of the advowson. Ibid. Quare impedit is within sect. 80 of the Common Law Procedure Act 1852. Marshall v. Bishop of Exeter, xcv. 716 ; 6 C. B. N. S. 716. A bishop has no right to demand of the presentee of a benefice, before institu- tion, a testimonial from the bishop of the diocese in which he has had the cure of souls. Marshall v. Bishop of Exeter, xcvii. 653 ; 7 C. B. N. S. 653. Affirmed in Exchequer Chamber, cvi. 820 ; 13 C. B. N. S. 820. Upon presentation of clerk, bishop cannot reject except for cause, and must state specially ground of unfitness. Bishop of Exeter v. Marshall, cix. 857 ; 15 C. B. N. S. 857 ; affirming s. c. xcvii. 653 ; 7 C. B. N. S. 653. JEe cannot reject clerk because he has no certificate of good conduct from bishop with whom clerk had previously been. Ibid. 368 QUO WARRANTO. RAILWAY COMPANIES, I.— III. QUO WARRANTO. Proceedings in error, under Common Law Procedure Act, do not apply to quo warranto. Kegina v. Seale, lxxxv. 1 ; 5 E. & B. 1. Does not lie against a clerk to the justices of a borough. Regina v. Fox, xcii. 939 ; 8 E. & B. 939. Venue may be changed by court, in an information in nature of quo warranto, upon suggestion showing that it can be more conveniently tried. Clark v. The Queen, cvii. 147 ; 3 E. & E. 147. In judgment by default for usurping an office, defendant liable for costs, under 9 Ann. c. 20, s. 5. Lloyd v. The Queen, ex. 656 ; 2 B. & S. 656. It seems that this is so, whether there is a corporation or not. Ibid. Refused, on ground that evidence not sufficient. Regina v. Fisher, cxvi. 575 ; 4 B. & S. 575. Lies to the office of Guardian of the Poor. Regina v. Hampton, cxviii. 923 ; 6 B. & S. 923. RAILWAY COMPANIES. I. Calls. VI. The Lands Clauses Consolida- II. Construction of charters. tion Act 1845, 8 & 9 Vict. c. III. Compensation. 18. IV. Liability for negligence. VII. The Railway Clauses Consolida- V. Unreasonable preference and rea- tion Act 1845, 8 & 9 Vict. c. sonable condition, within 17 & 20. 18 Vict. c. 31. VIII. Other matters. I. Calls. Where subscribers' agreement, in each of two companies, authorized directors to amalgamate the road with any other railway, and the directors of the two, by resolution and deed, did amalgamate them: held, the united company could maintain action for calls against shareholders of each. C. & Y. Railway Co. v. Paterson, lxxxvi. 414; 18 C. B. 414. A company provisionally registered, under 7 & 8 Vict. c. 110, may make a call for preliminary expenses. Aldham v. Brown, ov. 398 ; 2 E. & E. 398. Affirming s. c, xc. 164 ; 7 E. & B. 164. II. Construction of charters. Under sect. 223 of 5 & 6 Win. 4, c. 107, notice is required only in the case of some act or omission warranted, or supposed to be warranted, by the statute. . Garton v. G. W. Railway Co., xcvi. 837 ; E., B. & E. 837. Proper notice to landowner, under 8 & 9 Vict. c. 18, s. 18. Wood v. E. & L. Railway Co., xcviii. 731 ; 8 C. B. N. S. 731. Forfeiture of company's title to land by acts ultra vires. Ibid. Agreement by a railway company to provide means by which their passengers and goods may be safely and speedily carried abroad, not ultra virfis. S. W. Railway Co. v. Redmond, c. 675 ; 10 C. B. N. S. 675. A railway company may charge differently for packed parcels and others, under 2 Vict. c. 42, provided the rates are alike to all persons. Per Erie, C. J. Branley v. S. E. Railway Co., civ. 64; 12 C. B. N. S. 64. III. Compensation. _ Under 8 & 9 Vict. c. 18, s. 124, railroad company may remain in possession six months after notice of an unknown claim to lands it is authorized to pur- chase, if no dispute as to title. Jolly jj. W. & D. Railway Co., ci. 807 ; 1 B. & In an action on a judgment following an inquisition, under 8 & 9 Vict. c. 18, the court cannot inquire as to the items for which compensation was given. Mortimer v. S. W. Railway Co., cii. 375 ; 1 E. & E. 375. RAILWAY COMPANIES, III., IV. 369 Compensation not allowed for injury to right of shooting and fishing, under Lands Clauses Act 1845, 8 & 9 Viot. o. 18, s. 68. Bird e. G. E. Railway Co., cxv. 268 ; 19 0. B. N. S. 268. Under Railway Clauses Consolidation Act 1845, ss. 77, 78, where owner of mines, under land taken by a railway company, gives notice of intention to work them, and company expresses willingness to treat, he is entitled to full compen- sation for the mines. G. W. Railway Co. v. Bennett, ex. 868 ; 2 B. & S. 868. In such case, the ordinary rule as to subjacent and adjacent support does not apply. Ibid. Under section 79 of the act, he must repair any damage caused by taking away the support to which the company is entitled. Ibid. A person sustaining a particular injury by reason of the stoppage of a road, in consequence of which an action would lie, if without authority, is entitled to compensation, under Lands Clauses Consolidation Act 1845. Wood v. Stour- bridge Railway Co., cxi. 222; 16 C. B. N. S. 222. But there is no compensation for crossing on a level. Ibid. Where jury found that premises, after notice to termor, had actually been taken possession of, termor can recover damages, under Lands Clauses Consolidation Act, 7 & 8 Vict. c. 18, s. 68. Barker v. Metropolitan Railway Co., cxii. 785 ; 17 C. B. N. S. 785. Award by arbitrators, under 8 & 9 Vict. c. 18 (Lands Clauses Act), where dam- ages might have been assessed, is final. Croft v. L. & N. W. Railway Co., cxiii. 436 ; 3 B. & S. 436. Obstruction of highway, causing injury to good-will, or loss of profit where land is not taken, not the subject of compensation to owner of business, under Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, s. 68. Cameron v. Railway Co., Bourhill v. Same (reversing s. c. cxi. 430 : 16 C. B. N. S. 430), cxv. 764: 19 0. B. K. S. 764. A public house is not " injuriously affected," within s. 68 of 8 & 9 Vict. c. 18, by a diversion of trade. Ricket v. Metropolitan Railway Co., cxvii. 149 ; 5 B. & S. 149. IV. Liability for negligence. "Where stray colt, being driven home, goes upon track, through gate left open by negligence of company's servants, and is killed, company liable. Midland Railway Co. v. Daykin, lxxxiv. 126 ; 17 C. B. 126. Where porter of the defendant took portmanteau of plaintiff, a passenger, at terminus of defendant's route, put it on a truck, wheeled the truck to the sta- tion of the B. railway, and the portmanteau, which was not seen after coming to porter's hands, was lost before reaching destination on B. railway, no evidence to make defendant liable. Midland Railway Co. v. Bromley, lxxxiv. 372 ; 17 C. B. 372. Negligence to leave unfenced a dangerous place in their grounds, on the short- est way to and from their station. Burgess v. The G. W. Railway Co., xev. 923 ; 6 C. B.N. S. 923. In the absence of evidence of negligence, on the part of the company, it is not liable for injuries to a child, three and a half years old, straying on the track. Singleton v. E. C. Railway Co., xcvii. 287 ; 7 C. B. N. S. 287. At a level crossing, where there is considerable traffic, company must exercise reasonable care in the management of trains and engines. Manchester, S. J. Railway Co. v. Fullarton, cviii. 54 ; 14 C. B. N. S. 54. Facts sufficient to constitute negligence. Ibid. Insufficiency of steps at railway platform, on the question of negligence, is for the jury. Foy v. Railroad Co., cxiv. 225; 18 C. B. N. S. 225. Where a railway company has been negligent, in placing a post, causing in- jury to a guard of a railway company using the road, recovery can be had against the servient railway by him. Graham v. N. E. Railway Co., cxiv. 229 ; 18 C. B. N. S. 229. J . Where there are special circumstances, such as sharpness of curve, &c, •whether there are proper precautions at crossing, properly left to the jury. Bil- bee o. Railway Co., cxiv. 584 ; 18 C. B. N. S. 584. Admissions of night inspector on railroad, as to negligence in past transactions, Vol. III.— 24 370 KAILWAY COMPANIES, IV., V. •will not bind employers, though he had authority at the time of the transaction. G. W. Railway Co. u. Willis, cxiv. 748 ; 18 C. B. N. S. 748. A railway company constructing at a station a bridge for convenience of pas- sengers found by the jury to be dangerous, is liable for the death of passenger. Longmore v. G. W. Railway Co., cxv. 183 ; 19 C. B. N. S. 183. Not liable for late arrival of train, when nothing is shown but the purchase of a ticket. Hurst v. G. W. Railway Co., cxv. 310 ; 19 C. B. N. S. 310. Damages for loss on railroad of title-deeds and bank-notes carried by solicitor for purposes of use at trial, cannot be recovered against the railway company. Phelps v. L. & N. W. Railway Co., cxv. 321 ; 19 C. B. N. S. 321. V. Unreasonable preference and reasonable condition, within 17 & 18 vict. c. 31. TV Railway and Canal Traffic Act, 17 & 18 Vict. c. 31, permits the company to make a special contract, provided it be signed by the consignor and be in the opinion of the court just and reasonable. Simons v. The G. W. Railway Co., lxxxvi. 805 ; 18 C. B. 805. A condition that company will not be responsible for the loss, detention or damage of goods improperly packed, unreasonable. Ibid. That where goods conveyed at special or mileage rates, company not respon- sible for loss or damage however caused, is reasonable. Ibid. Qucere, as to condition requiring claim to be made within three days. Ibid. To enforce running of through trains on continuous railways, under 17 & 18 Vict. c. 31, it must be shown to be reasonable and that public convenience requires it. In re Barret, lxxxvii. 423 ; 1 C. B. N. S. 423. The undue and unreasonable preference provided against by the Railway Traffic Act, 17 & 18 Vict. c. 31, refers to persons and companies using the line between same point of departure and same point of arrival. In re Caterham Railway Co., lxxxvii. 410 ; 1 C. B. N. S. 410. Enjoined under 17 & 18 Vict. c. 31, from charging different rates to different individuals where manifest intention was to compensate one of them for disad- vantage of location. In re Ransome, lxxxvii. 437 ; 1 C. B. N. S. 437. Semble, that the companies may take into account their own interests. Ibid. Under 17 & 18 Vict. c. 31, company may lower their rates for full trains of through freight. In re Oxlade, lxxxvii. 454 ; 1 C. B. N. S. 454. May refuse to furnish trucks to one who declines to pay demurrage for their detention. Ibid. Cannot be compelled to carry coals to the end of their line and there shift them if they have no facilities for doing it. Ibid. Cannot lower their rates by special agreement in order to introduce coke into a particular locality. Ibid. What is undue preference and undue disadvantage. Ibid. Under 17 & 18 Vict. c. 31, company which admitted an omnibus into its yard enjoined from excluding another. In re Marriott, lxxxvii. 499; 1 C. B. N. S. 499. . Where company was authorized by act to charge higher rate for small parcels, being single parcels in separate packages, held they could charge the higher rate when many packages of articles of similar classes were sent by the same con- signor to the same consignee. Parker v. G. W. Railway Co., lxxxviii. 77 ; 6 £. &B. 77. And also where parcels of coffee were sent at different times on same day, shipped on same train to same consignee, and notice was given when first was sent that others would probably follow. Ibid. Being authorized to charge a certain rate for " manufactured" goods, it was held that these were articles made in what are popularly called manufactories. Ibid. The company being required to charge equally, but authorized to make agree- ments as to collection of packages, did not overcharge one who paid the ordinary rates, though certain amounts were allowed out of company's funds to special agents engaged to collect for them. Ibid. Reasonable conditions, under 17 & 18 Vict. c. 31. White v. G. W. Railway Co., lxxxix. 7 ; 2 C. B. N. S. 7. RAILWAY COMPANIES, V. 371 Court refused injunction, no public inconvenience being shown, to prevent company granting a cab exclusive liberty to ply for hire within their station. In re Beadell, lxxxix. 509 ; 2 C. B. N. S. 509. Affidavits of fly-owners, that other flys admitted in station, and they excluded, to the public inconvenience, insufficient to obtain injunction. Ex parte Painter, lxxxix. 702; 2 C. B. N. S. 702. A company, having a special arrangement with another company, by which they charged a certain rate for goods consigned to their agents, was enjoined from charging a higher rate for goods not so consigned, under 17 & 18 Vict. c. 31. Baxendale v. North Devon Railway Co., xci. 324 ; 3 C. B. N. S. 324. Under Railway Traffic Act, 17 & 18 Vict. c. 31, a preference is not justified because the person benefited has, in consideration of it, laid connecting ways, or has threatened to make a competing railway. In re Harris, xci. 693 ; 3 C. B. N. S. 693. Injunction, under Railway Traffic Act, not granted on the ground that there was a difference in the rate of season tickets between different points. In re Jones, xci. 718 ; 3 C. B. N. S. 718. May charge a higher rate for parcels addressed separately to different persons, than if all were addressed to one consignee. Baxendale v. E. C. Railway Co., xciii. 63 ; -4 C. B. N. S. 63. At common law the rates of a carrier must be reasonable, but need not be equal. Ibid. Railway Traffic Act, 17 & 18 Vict. c. 31, does not prevent the recovery back of overcharges. Ibid. May bona fide so district its route, charging lower rates for full trains, that the customers of one dealer lie all in one district, but those of another, to hi$ dis- advantage, are distributed. In re Ransome and B. C. Railway Co,, xciii. 135 ; 4 C. B.N. S. 135. May not arrange a scale of rates to diminish the natural advantages of one dealer, by annihilating, in expense, that portion of the distance where the com- petition arises. Ibid. May charge a less proportionate rate for a longer distance, the calculation in- cluding expense of loading. Ibid. A discrimination not affecting the complainant is no ground for an injunction. Ibid. Injunction, under 17 & 18 Vict. c. 31, refused, where the application asked for more than was necessary to redress the grievance. In re Cooper and S. W. Rail- way Co., xciii. 738 ; 4 C. B. N. S. 738. Not legitimate ground for preference to one customer of a railway, that he engages to employ other lines of the company for traffic, in distinct goods. In re Baxendale and G. W. Railway Co., xciv. 309 ; 5 C. B. N. S. 309. A railway cannot make a charge nominally for carriage, but really including also collection and delivery, coupled with an offer to the public to collect and deliver free, so as to exclude competition in the latter part of the business. In re Baxendale, xciv. 336 ; 5 C. B. N. S. 336. Not though the company make no profit on the collection and delivery. Gar- ton v. G. W. Railway Co., xciv. 669 ; 5 C. B. N. S. 669. A railway may carry at a lower rate, in consideration of a guaranty of large quantities, at regular periods, if the object be greater profit, though those unable to give the guaranty are excluded. In re Nicholson, xciv. 366 ; 5 C. B. N. S. 366; In re Nicholson, xcvii. 755 ; 7 C. B. N. S. 755. Keeping the office open, until a later hour, for the reception of goods from an agent of the company, who charges for delivery, is a preference, within 17 & 18 Vict. c. 31. Garton v. Bristol and Exeter Railway Co., xcv. 639 ; 6 C. B. N. S. 639. A less rate, though for certain specified goods in large quantities, is a prima facie preference. Ibid. A letter, signed on behalf of person delivering the goods, directing the com- pany to forward them " not insured," is a sufficient special contract in writing, within s. 7 of 17 & 18 Vict. c. 31. Peek v. N. Staffordshire Railway Co., xcvi. 958 ; E., B. & E. 958. Reversed in the House of Lords, cxvi. 1005 ; 4 B. & S. 1005. It supports a plea of an agreement not to be responsible for loss. Ibid. 372 RAILWAY COMPANIES, V., VI. Evidence to show the meaning of the words " not insured" may bo admitted. Ibid. A condition that the company will not be responsible for damage, detention or loss to a package insufficiently packed, marked or directed, is unreasonable. Garton v. Bristol & Exeter Railway Co., ci. 112; 1 B. & S. 112. * And a condition that goods will not be received after quarter past five, if the goods of other parties are so received. Ibid. 8 & 9 Vict. c. 155, s. 19, only applies to goods where the charge may be so much per ton. Ibid. Payment made to a company whose rates included charges for collection and delivery of parcels, where it did not collect and deliver, may be recovered back in money had and received. Ibid. Payments in excess of the rates charged other persons cannot be recovered back in money had and received. Ibid. Company may charge the higher rate for separate parcels of same goods, ag- gregating over 500 lbs., intended ultimately for different consignees, though delivered to same person. Ibid. Cannot charge beyond rates specified in scale bills. Ibid. Where company required to. affix on boards at their toll-houses the rates and tolls, sums paid cannot be recovered back in money had and received because the rates not so affixed. Ibid. May be restrained, under 17 & 18 Vict. c. 31, for giving an undue preference to certain persons delivering goods. In re Baxendale and Railway Co., ciii. 787 ; 11 C. B. 1ST. S. 787. Allowing a carrier to receive goods as their agent without requiring shippers to sign the conditions which other shippers are required to sign, is such an un- due preference. Ibid. A railway company will be enjoined, under 17 & 18 Vict. c. 31, from requir- ing other carriers to deliver goods at an earlier hour than they receive goods delivered at their own receiving station. In re Baxendale, &c, civ. 758 ; 12 C. B. N. S. 758. What are just and reasonable conditions limiting liability under 17 & 18 Vict. c. 31, s. 7. Aldridge ». G. W. Railway Co., cix. 582 ; 15 C. B. N. S. 582. Railway companies are only obliged to carry according to the profession they make. In re Oxlade & N. E. Railway Co., cix. 679 ; 15 C. B. N. S. 679. They can, therefore, limit their carrying of coals to colliery owners only. Ibid. And this is not affected by 17 & 18 Vict. c. 31. Ibid. What is a reasonable condition, under 17 & 18 Vict. c. 31, s. 7 (Railway & Canal Traffic Act). Harrison v. L. & B. Railway, ex. 122 ; 2 B. & S. 122. Under 17 & 18 Vict. c. 31, railroad company must receive and carry horse, without extra charge, when value not declared over 501. Robinson v. L. & S. W. Railway Co., cxv. 51 ; 19 C. B. N. S. 51. A railway company is entitled to the protection against responsibility given by s. 7 of 17 & 18 Vict. c. 31, though no complete delivery has been made, if the animal was in the course of delivery. Hodgman v. West Midland Railway Co., cxvii. 173 ; 5 B. & S. 173. Affirmed in Ex. Ch., cxviii. 560 ; 6 B. & S. 560. A contract that the company shall not be liable for delay in delivery, however caused, is unreasonable, within 17 & 18 Vict. c. 31. Allday v. G. W. Railway Co., cxvii. 903 ; 5 B. & S. 903. VI. The Lands Clauses Consolidation Act 1845, 8 & 9 Vict. c. 18. No compensation, under 8 & 9 Vict. c. 18 & 20, for loss caused by railway overlooking premises. Re Penny, xc. 660 ; 7 E. & B. 660. Semble, compensation for vibration during construction. Ibid. Where jury have improperly considered one claim among others, certiorari lies, though the fact does not appear on the face of the proceedings. Ibid. Excess of authority by umpire, under 8 & 9 Vict. c. 18, in assessing damages. In re Brogden, xcix. 229 ; 9 C. B. N. S. 229. Under 8 & 9 Vict. c. 18, s. 124, railroad company may remain in possession six months after notice of an unknown claim to lands it is authorized to pur- EAILWAY COMPANIES, VI., VII. 373 chase, if no dispute as to title. Jolly v. W. & D. Railway Co., ci. 807 : 1 B. & S.807. In an action on adjudgment following an inquisition, under 8 & 9 Vict. c. 18, the court cannot inquire as to the items for which compensation was given. Mortimer v. S. W. Railway Co., cii. 375 ; 1 E. & B. 375. Compensation not allowed for injury to right of shooting and fishing, under Lands Clauses Act 1845, 8 & 9 Vict. c. 18, s. 68. Bird ». G. E. Railway Co., cxv. 268; 19 C. B. N. S. 268. A special act, 8 & 9 Viet. c. 155, which enacts that so much of the Lands Clauses Consolidation Act as relates to the mode of crossing roads, &c, shall be incorporated, incorporates sections 65 and 145 of that act. Railway Co. v. Tucker, cvi. 207 ; 13 C. B. N. S. 207. A person sustaining a particular injury by reason of the stoppage of a road, in consequence of which an action would lie, if without authority, is entitled to compensation, under Lands Clauses Consolidation Act 1845. Wood v. Stour- bridge Railway Co., cxi. 222 ; 16 C. B. N. S. 222. But there is no compensation for crossing on a level. Ibid. Where jury found that premises, after notice to termor, had actually been taken possession of, termor can recover damages, under Lands Clauses Consolidation Act, 7 & 8 Vict. c. 18, s. 68. Barker v. Metropolitan Railway Co., cxii. 785 : 17 C. B. N. S. 785. Award by arbitrators, under 8 & 9 Vict. c. 18 (Lands Clauses Act), where dam- ages might have been assessed, is final. Croft v. L. & N. W. Railway Co., cxiii. 436 ; 3 B. & S. 436. Obstruction of highway, causing injury to good-will, or loss of profit where land is not taken, not the subject of compensation to owner of business, under Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, s. 68. Cameron v. Railway Co., Bourhill v. Same (reversing s. c. cxi. 430; 16 C. B. N. S. 430), cxv. 764 ; 19 C. B. N. S. 764. A jury, under 8 & 9 Vict. c. 18, s. 68 (Lands Clauses Consolidation Act), to assess the compensation for injury to lands, &c, have no jurisdiction to determine whether the lands have been injuriously affected. Horrocks v. Railway Co., cxvi. 315 ; 4 B. & S. 315. A jury, under 8 & 9 Vict. c. 18, s. 68, must confine themselves to compensa- tion for lands, &c. Ibid. Right of lateral support is a legal right, and injury to it is the subject of com- pensation, under 8 & 9 Vict. c. 18, s. 68. Ibid. Costs under Land Clauses Consolidation Act, 8 & 9 Vict. c. 18, s. 68, when offer has been made and declined and due notice given of inquisition, not allowed. Re Hayward, cxvi. 787 ; 4 B. & S. 787. A notice, under 8 & 9 Vict. c. 18, s. 68, must state the quality and quantity of the estate. Healey v. T. V. Railway Co., cxvii. 769 ; 5 B. & S. 769. Who are adjoining owners and what are superfluous lands and in what manner they shall be divided, under 7 & 8 Vict. c. 92, ss. 216, 217, and 8 & 9 Vict. c. 18, s. 127. Moody v. Corbett, cxvii. 859 ; 5 B. & S. 859. VII. The Railway Clauses Consolidation Act 1845, 8 & 9 Vict. c. 20. The interference provided for by Railway Clauses Consolidation Act, 8 & 9 Vict. c. 20, is not an interference with the road which it is the object of the special act to change, but with other roads. Tanner v. S. W. Railway Co., lxxxv. 618; 5E. &B. 618. A railway company carrying a railway over a road by a bridge must keep them both, as well as the approaches, in repair. North Staffordshire Railway Co. v. Dale, xcii. 836 ; 8 E. & B. 836. Not obliged to fence between their railway and a yard adjoining the station through which carried cattle are compelled to pass. Roberts v. G. W. Railway Co., xciii. 506 ; 4 C. B. N. S. 506. That a porter came into this yard with an ordinary lantern, frightening one of these cattle on to the track, where it was killed, is no evidence of negligence. Ibid. There is nothing in 8 & 9 Vict. c. 20 and 3 Geo. 4, c. 126, affecting the owner- ship of the soil in an old turnpike road when a new one has been substituted by 374 RAILWAY COMPANIES, VII., VIII. a railway company. M. of Salisbury v. G. N. Railway Co., xciv. 174 ; 5 C. B. N. S. 174. Sect. 124 of 8 & 9 Vict. c. 20, does not prevent ejectment but authorizes the company to have execution restrained. Ibid. The terminus where the general business is done, secretary resides, and orders are issued, is the only " principal office," within sect. 138 of 8 & 9 Vict. c. 20. Garton v. G. W. Railway Co., xcvi. 837 ; E., B. & E. 837. By-law of a railway company, pursuant to 8 & 9 Vict., is a public document, a certified copy of which is admissible in evidence, under 14 & 15 Vict. c. 99, s. 14. Motteram v. Railway Co., xcvii. 58 ; 7 C. B. N. S. 58. Under sect. 109 of 8 & 9 Vict. c. 20, it is sufficient to prove that copies of a by-law imposing the penalty were posted at the stations at which the passenger entered and left the train. Ibid. Under sect. 68 of 8 & 9 Vict. c. 20, railway companies are bound to maintain fences strong enough to keep sheep and cattle from straying out of adjoining lands. Bessant v. G. W. Railway Co., xcviii. 368 ; 8 C. B. N. S. 368. Railway company not bound, under 8 & 9 Vict. c. 20, to fence between its road and a tramway, also its own. Marfell v. S. W. Railway Co, xcviii. 525 ; 8 C. B. N. S. 525. But where it permits the use of such tramway for hire, it is liable for negli- gence in letting a gate remain open between the tramway and the road. Ibid. Railway company not liable, under 8 & 9 Vict. c. 20, for negligently emitting smoke from locomotive, provided locomotive is properly constructed for consum- ing its smoke. M. S. & L. Railway Co. v. Wood, cv. 344 ; 2 E. & E. 344. Where special injury is suffered from the obstruction of a highway by opening a railroad, compensation can be obtained, under 8 & 9 Vict. c. 20, s. 6. Cham- berlain v. W. E. & C. P. Railway Co., ex. '605 ; 2 B. & S. 605. Rights of owners of mines, under Act 1845, ss. 77, 78, 79, as against railway company having the surface. G. W. Railway Co. v. Bennett, ex. 868 ; 2 B. & S. 868. Under 7 & 8 Vict. c. 3, s. 50, and 8 & 9 Vict. e. 20, requiring equality of charges, no extra charge can be made for collection and delivery from those who do not need these services. Baxendale v. G. W. Railway Co., cxi. 137; 16 C. B. N. S. 137. Drains, when not accommodation works, within. 8 & 9 Vict. c. 20, ss. 68, 69. Regina i>. Fisher, cxiii. 191 ; 3 B. & S. 191. Order of justices to maintain and keep in repair drains, set aside. Ibid. Under 8 & 9 Vict. c. 20, s. 58, the company may be compelled to repair a high- way it used for carrying materials, though in the carts of contractors. W. & G. Railway Co. v. Wakefield, cxvii. 478 ; 5 B. & S. 478. Under sect. 46 of 8 & 9 Vict. c. 20, a. railway which, in crossing a highway by means of a bridge lowered the level of the highway, is not bound to keep the slope of the road in repair. L. & N. W. Railway Co. v. Skerton, cxvii. 559 ; 5 B. & S. 559. An action does not lie against a railway company for injuries received by one who in the absence of the company's servants, opens for himself the gates con- structed, under s. 46 & 47 of 8 & 9 Vict. c. 20. Wyatt v. G. W. Railway Co., cxviii. 709 ; 6 B. & S. 709. A by-law, under s. 109 of 8 & 9 Vict. c. 20, providing that a passenger not delivering up his ticket should pay his fare from the place where the train started, under a penalty, applies only to one who having a ticket wilfully refuses to deliver it. Dearden v. Townsend, cxviii. 861 ; 6 B. & S. 861. VIII. Other matters. Responsible to one relying on train advertised in time table but which had been discontinued. Denton v. G. N. Railway Co., lxxxv. 860 ; 5 E. & B. 860. Omnibus proprietor carrying psssengers and luggage has no right to drive his vehicle within enclosure of a railway station. Barker v. Midland Railway Co., lxxxvi. 46 ; 18 C. B. 46. What is evidence of felony in answer to defence under Carriers' Act. G. W. Railway Co. v. Rimell, lxxxvi. 575 ; 18 C. B. 575 ; also reported xcv. 917 ; 6 C. B. N. S. 917. When felony is set up question of negligence is immaterial. Ibid. KAILWAY COMPANIES, VIII. 375 Does not carry on business, within meaning of 9 & 10 Vict. c. 95, at an office kept by receiving agent of this and other companies. Minor v. Railway Co., lxxxvii. 325 ; 1 C. B. N. S. 325. Holder of shares conveyed to him as trustee for nominal pecuniary considera- tion, not entitled to be registered as owner without delivering deed of transfer, under 8 & 9 Vict. c. 16. Copeland v. N. E. Railway Co., Ixxxviii. 277 ; E. & B. 277. Rule of sci. fa. against shareholder not enlarged on affidavit that the claim was contracted ultra vires. Edwards v. Railway Co., Ixxxix. 397 ; 2 C. B. N. S. 397. Where the arches used by a railway are walled up, and the enclosed space rented as a stable, the structure is within the exception in section 6 of 18 & 19 Vict. c. 122. In re Badger, xcii. 728 ; 8 E. & B. 728. Damages, under 9 & 10 Vict. c. 93, may be given for the reasonable expecta- tion of pecuniary advantage from the life of the deceased. Dalton v. S. E. Rail- way Co., xciii. 296 ; 4 C. B. N. S. 296. But not for funeral or mourning expenses. Ibid. To a plea, under the Carriers' Act, that the value of the parcel, being over 10Z., was not disclosed, felony of the defendant's servants is a good answer. Metcalfe v. Railway Co., xciii. 307 ; 4 C. B. N. S. 307. But proof that goods which were in a box given to defendants to be carried were abstracted before delivery, is no evidence of such felony. Ibid. A railway company incorporated by 6 & 7 Wm. 4, c. 75, cannot escape its lia- bility as a carrier by requiring passengers to take care of their own luggage. Munster v. S. E. Railway Co., xciii. 676 ; 4 C. B. N. S. 676. And if, on their declining, its servants place the package among lost luggage and refuse to deliver without a charge, trover lies. Ibid. Under sect. 17 of 2 Vict. c. 42, which requires the company to charge equally for " all goods of a like description," they cannot make an increased charge for packed parcels. Piddington v. The S. E. Railway Co., xciv. Ill ; 5 C. B. N. S. 111. Putting up a list of tolls at a station, is not sufficient evidence to show that defendant is bound as a carrier to carry goods in bulk. Oxlade v. N. E. Railway Co., xcix. 896 ; 9 C. B. N. S. 896. In an action by superintendent for improper dismissal, he is entitled to inspec- tion of their books relating to his employment. Hill v. G. W. Railway Co., c. 148 ; 10 C. B. N. S. 148. Not liable for loss of merchandise which traveller takes with him as luggage, contrary to their regulations, though marked glass. Cahill u. L. & N. W. Rail- way Co., c. 154; 10 C. B. N. S. 154. Affirmed in Exchequer Chamber, cvi. 818 ; 13C B. N. S. 818. Liable for the intentional obstruction of a siding provided for by their act of incorporation, though the plaintiff had not provided himself with locomotive and cars necessary in order to use it. Bell v. Midland Railway Co., c. 287 ; 10 C. B. N. S. 287. Where a by-law in pursuance of a railway act provides that each passenger Bhall show and deliver up his ticket when required under a penalty, an annual passenger refusing to produce his ticket is liable. Woodard v. E. C. Railway Co., ci. 977 ; 1 B. & S. 977. Not obliged to carry luggage of passenger, under 18 & 19 Vict. c. 211, on ex- cursion train. Rumsey v. N. E. Railway Co., cviii. 641 ; 14 C. B. N. S. 641. Railway company assessed upon rateable value of station based upon rent paid by another company, for joint user of station for 999 years, is not entitled to reduction on account of fall in value. Regina v. Fletton, cvii. 450 ; 3 E. & E. 450. Such company rated as person rateable in respect to whole occupation. Ibid. A railway company is liable for false imprisonment, .if made by its authority. QoSv. The Great Northern Railway Co., cvii. 672 ; 3 E. & E. 672. But the authority must be shown sufficient to justify the finding of the jury. Ibid. Where, however, an act imposes penalty for travelling without payment of fare, and empowers officers and servants of company to arrest, authority may be pre- sumed. Ibid. . ' What deemed sufficient evidence. Ibid. 376 KAILWAY COMPANIES, VIII. KATES, &c, I. Railway company taking luggage for reward, to be kept, must deliver it with- in a reasonable time after being called for. Stallard v. G. W. Railway Co., ex 419; 2B. &S. 419. Railroad company with premises abutting on street, but separated by a fence, liable for expense of sewering and paving, under 11 & 12 Vict. c. 63, 8. 69. Re- gina v. Board of Health, cxiii. 341 ; 3 B. & S. 341. Tolls paid by a connecting railway to another road for use of road are to be deducted from receipts in assessing poor rate. Regina v. Vestry of St. Pancras, cxiii. 810 ; 3 B. & S. 810. Pay for loading and unloading and other expenses at railway station is called " terminal charges." Regina v. E. C. Railway Co.. cxvi. 58 ; 4 B. & S. 58. Such terminal charges are a part of the general earnings and general expenses of the line. Ibid. When bonds issued by the directors are ultra vires and void. Chambers v. M. & M. Railway Co., cxvii. 588 ; 5 B. & S. 588. The Carriers' Act, 11 Geo. 4 and 1 Wm. 4, applies to a contract for convey- ance, part by land and part by sea. Le Couteur v. S. W. Railway Co., cxviii. 961 j 6 B. & S. 961. The company is not necessarily released because the passenger by common consent takes the article lost into the carriage with him. Ibid. KATES AND LEVIES. I. Liability to. III. Other matters relating to Rates. II. Being rated to entitle to vote. I. Liability to. Special district rate may be levied by local board of health on property deriv- ing no immediate benefit. Dorling v. Board of Health, lxxxv. 471 ; 5 E. & B. 471. Quayage payable to borough, from time immemorial, for goods landed on E round, partly belonging to corporation and partly to stranger, held not rateable, ewis v. Swansea, lxxxv. 508 ; 5 E. & B. 508. The property of a society, whose object is the elevation of the physical, intel- lectual, moral, and religious condition of the working classes, is rateable. Scott v. St. Martin, lxxxv. 558 ; 5 E. & B. 558. Land, lying in several parishes, used for waterworks vested in the corporation of Liverpool, as trustee, for the benefit of others, and from which no profit is made, is rateable. Mayor of Liverpool v. West Derby, lxxxviii. 704 ; 6 E. & B. 704. Owners of water-pipe liable to the lower rate as occupiers of land, under 18 & 19 Vict. c. 120. Regina v. Water Co., lxxxviii. 1008 ; 6 E. & B. 1008. Occupier, not owner, has a right to be rated, under Reform Act, 2 & 3 Wm. 4, c. 45. Regina v. St. Giles in the Fields, xc. 205 ; 7 E. & B. 205. Borough lands, exempt by local act from watch rate, previous to 5 & 6 Wm. 4, c. 76, may, within two hundred yards of a street, be rated under that act. Hallett v. Overseers of Brighton, xc. 342 ; 7 E. & B. 342. Property occupied as a postoffice, for service of crown, not rateable. Smith v. Guardians of Birmingham, xc. 483 ; 7 E. & B. 483. There must be the same kind of occupation to make real estate liable for a district rate as for a poor rate. Hodgson v. Local Board of Health, xcii. 116 ; 8 E. &B. 116. Neither the public nor the occupier, whether corporation or person, who merely represents the public, is assessable for the poor rate. Oxford Rate, xcii. 184; 8E. &B. 184. The University of Oxford not rateable for property it holds, to subserve its public purpose of advancing learning and religion. Ibid. RATES AND LEVIES, I. 377 Aliter, as to property occupied for subordinate and quasi private purposes, such as the residences of professors, gardeners, &a. Ibid. Aliter, also as to property occupied by the colleges of the university. Ibid. Under 18 & 19 Vict. c. 120, s. 159, a rate should be apportioned according to the benefit. Howell v. London Dock Co., xcii. 212 ; 8 E. & B. 212. An officer occupying premises for the purpose of performing public service, not rateable. Regina v. Stewart, xcii. 360 ; 8 E. & B. 360. Aliter, as to the excess, when they exceed what is reasonably necessary. Ibid. A permanent floating pier moored by chains and used as a landing, is rateable. Forrest v. Overseers of Greenwich, xcii. 890 ; 8 E. & B. 890. Land between high and low-water mark not rateable, unless proven to be within the parish. Regina v. Musson, xcii. 900 ; 8 E. & B. 900. Houses using a sewer in an adjoining district, not assessable by the latter. Regina o. Tatham, xcii. 915 ; 8 E. & B. 915. Wherever, under 18 & 19 Vict. c. 120, a lighting rate for any part of any parish is distinguished from the general rate, it must be levied over the whole parish, having regard to sect. 165. St. James v. St. Mary, xcv. 878 ; 6 C. B. N. S. 878. How the owner of a tithe commutation rent charge is rateable to the poor and to what deductions entitled. Goodchild v. The Trustees, xcvi. 1 ; E., B. & E. 1. County constabulary not rateable to the poor. Lancashire v. Stretford, xcvi. 225 ; E., B. & E. 225. An order by the Poor Law Commissioners on a parish which is partly in the nature of- a retrospective rate, is invalid and unenforceable. Waddington v. London Union, xcvi. 370 ; E., B. & E. 370. A rate is good if it be found that the person rated occupies land to the extent and value described in it though the boundaries be undetermined. Regina v. Woods, xcvi. 481 ; E., B. & E. 481. Under 18 & 19 Vict. c. 120, s. 161, and a local act, 5 Geo. 4, c. 126, all the hereditaments in the parish of Paddington in Middlesex are rateable upon one scale without exemption. Regina v. G. W. Railway Co., xcvi. 600 ; E., B. & E. 600. The proviso in s. 88 of 11 & 12 Vict. c. 63, does not extend to property exempted by a local statute with respect to locality but only with respect to kind, and 5 Geo. 4, c. 22, does not exempt as to kind. Luscombe v. Plymouth, xcvi. 691 ; E., B. & E. 691. The Mersey Docks and Harbor Board is not rateable to the relief of the poor for its dock properties. Mersey Docks' Trustees v. Jones, xcviii. 114 ; 8 C. B. N. S. 114. Affirmed in Exchequer Chamber, c. 872 ; 10 C. B. N. S. 872. Reversed in House of Lords, cxiv. 867 ; 18 C. B. N. S. 867. By 6 Geo. 4, c. 133, the parishioners of the town of Leamington are exempted from the ordinary liability to highway rates. Wallington v. White, c. 128 ; 10 C. B. N. S. 128. A school house used by a society for charitable purposes not therefore exempt. Regina v. Licensed Victuallers Society, ci. 71 ; 1 B. & S. 71. Resevoir of waterworks company rated at one-fourth of annual value, under s. 129, of 14 & 15 Vict. c. 93. Regina v. Birmingham Waterworks, ci. 84 ; 1 B. & S. 84. But pipes and main at full rate. Ibid. 21 & 22 Vict. c. 98, s. 55, had reference to the kind of property and not the character of its occupation in the particular instance. Guardians v. Board of Health, ci. 167 ; 1 B. & S. 167. Where a clergyman may be compelled to appoint a curate or where he appoints one through a proper sense of religious obligation the curate's salary should be deducted in assessing the tithe commutation rent charge. Williams v. Over- seers of Llangeinwen, ci. 699 ; 1 B. & S. 699. An incumbent of two benefices, being thereby compelled to employ a curate, is not entitled to deduct curate's salary from assessment of the tithe commutation to the poor. Wheeler v. Overseers of Burmington, ci. 709 ; 1 B. & S. 709. An institution whose property is used exclusively for the objects of a library and literary society, and whose members derive no pecuniary benefit, is exempt, under 6 & 7 Vict. c. 36. Bradford Library v. Churchwardens, cii. 88 ; 1 E. & E. 378 KATES AND LEVIES, I. Land tax on bridge tolls not a parochial rate or assessment. Waterloo Bridge Co. v. Cull, cii. 213 ; 1 E. & B. 213. A tenant who occupies land subject to a right of shooting reserved by his landlord, is rateable for the value as diminished by that reservation. Regina v. Thurlstone, cii. 502 ; 1 B. & E. 502. An occupation which benefits only a particular portion of the public, is not exempt. Tyne v. Chirton, cii. 516; 1 E. & E. 516. In rating a canal company, the cost of maintaining locks is not to be deducted as a local expense. Regina v. Coventry Canal Nav. Co., cii. 572 ; 1 E. & E. 572. How the works and part of the main of a waterworks company, being in a parish from which they derive no profit, are to be rated there. Regina v. W. Middlesex Waterworks, cii. 716 ; 1 E. & B. 716. A non-resident is not rateable as to an annuity chargeable upon the commu- tation rent-charge of the parish. Friend v. Tolleshunt Knights, cii. 753 ; 1 E. & E. 753. 10 & 11 Vict. c. 34, s. 53, applies only if the street has never before been suf- ficiently paved. G. W. Railway Co. v. West Bromwich, cii. 806 ; 1 E. & E. 806. A watch rate may be imposed on the whole borough, under 2 & 3 Vict. c. 28, s. 1, and there is nothing in 3 & 4 Vict. c. 28, to limit this liability. Railway Co. v. Maidenhead, ciii. 653 ; 11 C. B. N. S. 653. The owners of a pier running into the river on piles, the first of which are two inches from the shore, and having a barge moored alongside it, are liable for the poor rate, in respect of their occupation of the pier and barge, to the parish fronting on the river. McCannan v. Sinclair, cv. 53 : 2 E. & E. 53. The owners of the wet-dock, tidal basin and canal, part of the Victoria London Docks, are rateable at the higher rate, under 3 & 4Wm. 4, c. 90, s. 33. Erie, C. J., dissenting. Peto v. Westham, cv. 144: 2 E. & E. 144. The anchorage and beaconage tolls of the port of Sunderland, which belonged to bishop of Durham, are rateable to the poor rate in the parish and townships on the port on a calculation of number of ships paying -toll and coming into those parts of the port in parish and townships respectively. Durham v. Bishop- wearmouth, cv. 230 ; 2 E. & E. 230. A water company not rateable under a previous local statute to the lighting rate is wholly exempted from that lighting rate, under 18 & 19 Vict. c. 120. E. L. Waterworks Co. v. Overseers, cv. 448 ; 2 E. & E. 448. Exemption of tenants in ancient demesne from parliamentary taxes and tall- ages does not extend to the county rate, under 15 & 16 Vict. c. 81. Regina ». Aylesford, cv. 538 ; 2 E. & E. 538. A local act of parliament, which provided that " no rate, tax or assessment whatsoever, parliamentary or parochial, should be raised, assessed or levied on or payable" by a county for any gaols, repealed a rate levied by improvement commissioners on gaols under previous local statutes. Regina v. Kent, cv. 912 ; 2E. &E. 912. How far re-assessment for removal of nuisances, under 18 & 19 Vict. c. 120, s. 22, allowable. Regina v. Bodkin, cvii. 271 ; 3 E. & E. 271. Rules by which deductions from rateable value allowable to railroad company upon assessment to poor rate in respect to portion of line within township. Re- gina v. N. S. Railway Co., cvii. 392 ; 3 E. & E. 392. In calculating amount for interest and tenant's profits depreciated value of rolling stock to be taken, not original cost. Ibid. So, things permanently connected with the railway are not to be deducted. Movables are. Ibid. So, allowance upon floating capital, for surplus stores, &c, should only be for the delay in realizing returns as compared with ordinary employment of capital. Ibid. So, deduction for stations, buildings and sidings must be for actual value, and not for original cost. Ibid. The beneficial occupier of a house liable for poor rate. Smith v. St. Michael, cvii. 383 ; 3 E. & E. 383. The question is whether he is in fact occupier of tho whole house. Ibid. If exclusive possession is given of a part, it makes the two parts separate tene- ments. Ibid. EATES AND LEVIES, I. 379 Houses, buildings and premises using sewers, built, under 18 & 19 Vict. c. 121, s. 22, must be assessed before, throwing expenses on highway rates. Regina v Gosse, evii. 277 ; 3 E. & E. 277. h 17 Geo. 2, c. 38, s. 11, does not restrict the right of subsequent overseers, under 43 Eliz. c. 2, s. 4, to levy rates to immediately succeeding overseers. East Dean v. Everett, cvii. 574; 3 E. & E. 574. Under local act, held that a person summoned for non-payment could not con- test the validity of a church rate before justices. Ex parte May, ex. 426 • 2 B &S. 426. ' Power of district board to apportion, among parishes, costs of sewers, under 18 & 19 Vict. c. 120 (Metropolitan Management Act), discretionary. St. Botolph v. Whitechapel, cvii, 89 ; 3 E. & E. 89. And such discretion will not be interfered with. Ibid. Not correct to apportion among the several parishes according to the quantity of land occupied by apparatus of waterworks in each parish. Regina v. Over- seers of Putney, cvii. 108 ; 3 E. & E. 108. In such case, circumstances of value of land and character of works, in dif- ferent places, &c, considered in fixing rate. Ibid. Where railway company gave the right of user for nine hundred and ninety- nine years to another company, reserving a rent, and was assessed upon valua- tion based thereon, a fall in value would not justify change of rate, the rent being still paid. Regina v. Fletton, cvii. 450 ; 3 E. & E. 450. An incumbent, owner of a tithe rent charge, who voluntarily grants to the minister of a new district parish a rent charge, charged on the tithe rent charge, is liable to Door rate on the whole amount. Lawrence v. Tolleshunt Knights, ex. 533 ; 2 B. & S. 533. Under 21 & 22 Vict. c. 98, s. 55, railways, owned by dock company, and docks, rateable at one-fourth only of their net annual value. Dock Co. v. Board of Health, ex. 708 ; 2 B. & S. 708. Warehouses and other adjuncts of docks, rateable at net annual value. Ibid. Liability to poor rate of land allotted, under Local Enclosure Act, 34 Geo. 3, c. 40, in lieu of vicarial tithes, and charged with corn rent. Hackett v. Long Bennington, cxi. 38; 16 C. B. N. S. 38. In such case the amount of the rent is not to be deducted. Ibid. A reformatory for juvenile offenders, under 17 & 18 Vict. c. 86, and other stat- utes, although partly supported by the parents and work of inmates, not liable to rates. Sheppard v. Overseers of Bradford, cxi. 369 ; 16 C. B. N. S. 369. Such building is devoted to public purposes, and as such exempt. Ibid. Under the local act, 8 & 9 Vict. c. 7, .vicar not liable to be rated in respect to lands allotted to him on account of and in lieu of glebe lands towards expenses of act. Eddison v. Brookes, cxii. 606; 17 C. B. N. S. 606. Borough, when exempt from general county rate, under 15 & 16 Vict. c. 81. East Looe v. Cornwall, cxiii. 20 ; 3 B. & S. 20. Mandamus to levy rate to pay judgment not a charge, within 11 & 12 Vict. c. 63, s. 89. will not issue, under 17 & 18 Vict. c. 125, s. 68. Burland v. Local Board of' Health, cxiii. 271 ; 3 B. & S. 271. Inhabitants of district, detached from parish for ecclesiastical purposes, under 59 Geo. 3, c. 134, s. 16, liable to poor rate in old parish. Regina v. Stevens, cxiii. 333 ; 3 B. & S. 333. Hence they are entitled to vote for churchwarden of old parish. Ibid. Railroad company with premises abutting on street, but separated by fence, are liable for expense of sewering and paving, under 11 & 12 Vict. c. 63, s. 69. Regina v. Board of Health, cxiii. 341 ; 3 B. & S. 341. Main gas pipes of gas company deriving benefit from sewers, not being entitled to exemption, liable to full rate, under 18 & 19 Vict. c. 120, ss. 161, 163, 164. Regina v. Head, cxiii. 419 ; 3 B. & S. 419. Where amendments are voted down, at vestry meeting, for levying of rate,- it will be enforced by rule. Regina v. Roberts, cxiii. 495 ; 3 B. & S. 495. In assessing poor rate upon rector or vicar, under 6 & 7 ¥m. 4, c. 96, the sti- pend paid to curate is to be deducted. Scriven with Tentergate v. Fawcett, cxiii. 797 ; 3 B. & S. 797 ; approving Hackney & Lamberhurst Tithe Commutation Rent Charges, xcvi. 1 ; E., B. & E. 1. 380 EATES AND LEVIES, I. But it is to be deducted from whole income, not from tithe commutation rent charge alone. Ibid. Where, by arrangement between connecting railway companies, tolls are paid for use of road, poor rate to be assessed upon receipts less said tolls. Regina v. Vestry of St. Pancras, cxiii. 810; 3 B. & S. 810. A person occupying premises, between the levying of two poor rates, is liable only on default of outgoing tenant and upon demand by overseers. Flatcher v. Boodle, cxiv. 152 ; 18 C. B. N. S. 152. Under Union Assessment Committee Act, 25 & 26 Vict. c. 103, all heredita- ments in a parish are to be assessed and rated at the full value. Sunderland v. Sunderland Union, cxiv. 531 ; 18 0. B. N. S. 531. In cases where Small Tenements Rating Act, 13 & 14 Vict, and 14 & 15 Vict. o. 39, apply, the'deduction is to be made from the rate to be levied and collected, and not from rateable value. Ibid. Under Union Assessment Committee Act, 24 & 25 Vict. c. 103, rateable value of breweries not affected by personal contracts with tenants of " tied public houses:" Byles, J., dissentiente. Ibid. So the rateable value of the public houses not affected by the burden cast upon them in such contracts : Byles, J., dissentiente. Ibid. Under 43 Eliz. c. 2, s. 1 , a company, owner of docks, &c, beneficial to the pub- lic, but capable of producing rent, is liable to be rated. Mersey Docks v. Cam- eron, cxiv. 867 ; 18 C. B. N. S. 867 ; reversing Mersey Docks v. Jones, xcviii. 114 ;' 8 C. B. N. S. 114, and c. 872 ; 10 C. B. N. S. 872, and affirming on other grounds Mersey Docks v. Cameron, xcix. 812 ; 9 C. B. N. S. 812. The making certain property belonging to a company liable to rates, docs not, by implication, exempt property otherwise liable. Ibid. Where property is occupied for public ourposes it is not rateable. Ibid. A railway company is liable to pay poor rate upon terminal charges with the other gross earnings. Regina v. E. C. Railway Co., cxvi. 58 ; 4 B. & S. 58. Mode of assessment, under Parochial Assessment Act, 6 & 7 Wni. 4, c. 96. Sheffield Gaslight Co. v. Overseers, cxvi. 135; 4 B. & S.135. Mode adopted in Regina v. West Middlesex Waterworks Co., cii. 716 ; 1 E. & E. 716, followed. Ibid. An estimate of rent to be given by a hypothetical tenant subject to proper de- duction, the course to follow. Ibid. The proper allowance for tenant's profit and interest on capital entirely a ques- tion of fact. Ibid. Parish liable to rates ad medium filum vice when the road is the boundary. Regina v. Board of Works, cxvi. 526, 551 ; 4 B. & S. 526, 551. Liability of parish, under 18 & 19 Vict. c. 120. Ibid. Premises held in trust for purposes of a laudable, but strictly private charity, are rateable. Regina v. Stapleton, cxvi. 629 ; 4 B. & S. 629. Schoolmaster employed by trustees liable to rate for part occupied by him, and the trustees for the rest. Ibid. Under 18 & 19 Vict. c. 128, Burial Board should charge upon rates of each par- ish finally the amount to be paid by each for expenses of burial ground. Regi- na v. Overseers, cxvi. 667 ; 4 B. & S. 667. A chaplain, residing on ground detached from the lunatic asylum, liable under 16 & 17 Vict. c. 97, to rates as an occupant. Congrove v. Upton, cxvi. 857 ; 4 B. & S. 857. A medical superintendent residing on lands belonging to lunatic asylum, but not within the curtilage, under 16 & 17 Vict. c. 97, liable to rates at the old value of land and not as an occupant. Ibid. The occupiers of a mill doing no business, but preserved intact, in a time of depression, are rateable according to its annual rentable value. Staley v. Castle- ton, cxvii. 505 ; 5 B. & S. 505. A hamlet is assessable to the highway rates of the parish of which it forms a part, though so far as memory and reputation go it has always been assessed for those rates in another parish. Dawson v. Willoughby, cxvii. 920 ; 5 B. & S. 920. The court will not infer, from non-interference by the county justices, that exclusive jurisdiction in the borough justices necessary to exempt it from county rates. Were v. Devon, cxviii. 7 ; 6 B. & S. 7. The admission of lunatics not belonging to the county, and of lunatics not KATES AND LEVIES, L, II., III. 381 paupers, does not take an asylum out of seot. 35 of 16 & 17 Viet. c. 97. Regina ». Fulbourn, exviil. 451 ; 6 B. & S. 451. That the asylum holds lands for the benefit of the inmates by their labor, though a profit is made, does not take it out of the statute, and it is not rateable for the profit. Ibid. A silk mill, containing its necessary machinery, which the owner has ceased working, with the intention of abandoning the business, is rateable as a store- house for machinery. Harter v. Salford, cxviii. 591 ; 6 B. & S. 591. In ascertaining the rateable value of a tenement compounded for, under 10 & 11 Vict. c. 30, the owner is entitled to the same deduction for rates and taxes as occupiers of houses not in composition. Regina v. Dodd, cxviii. 903 ; 6 B. & S. 903. A water rent enforceable by cutting off the supply, is not to be deducted in estimating the value for purposes of rates. Regina v. Bilston, cxviii. 908 ; 6 B. & S. 908. II. Being bated to entitle to vote. Parishioner whose vote is challenged at election of vestrymen for non-payment of rates should be permitted to show that rate is illegal. Tozer v. Child, lxxxviii. 289 ; 6 B. & B. 289. Those liable to highway rate, though not actually rated, entitled to vote for sur- veyor. Regina v. Kershaw, lxxxviii. 999 ; 6 E. & B. 999. Brethren of the Earl of Leicester's hospital do not occupy as owners or tenants under 2 Win. 4, c. 45, s. 27, so as to be entitled. Heath v. IJaynes, xci. 389 ; 3 C. B. N. S. 389. 13 & 14 Vict. c. 99, being in force, the owner of tenements not exceeding 61. each in value, assessed to the poor rate instead of the occupier, is entitled to vote at vestry meetings, under 58 Geo. 3, c. 69, and at most can have but six votes. Richardson v. Gladwin, xcvi. 138 ; E., B. & E. 138. The occupier has no such vote. Ibid. Under 2 Wm. 4, c. 45, s. 28, occupation in succession if the rate has been paid is sufficient, though the name of the party does not appear. Rogers v. Lewis, xcvii. 29; 7 C.B.N. S. 29. Semble, that the occupier is sufficiently rated, if he is the person intended, though a blank is left for his name, that of the owner being alone inserted. Ibid. Under 58 Geo. 3, c. 69, a man holding property in his own right and as exec- utor, together assessed at 501., is entitled to two votes for vestry. Regina v. Kirby, ci. 647 ; 1 B. & S. 647. What a sufficient rating to disqualify a person from voting by reason of non- payment. Baker v. Locke, cxiv. 52; 18 C. B. N. S. 52. What is a sufficient rating to entitle to vote. Powell v. Jones, cxiv. 83 ; 18 C. B. N. S. 83. Doctrine of right of application of payment considered in note. Ibid. In this case held, that there was sufficient to constitute a payment of the rate. Ibid. III. Other matters relating to Rates. Where parish and district co-extensive, local board of health may lay highway rate on the whole district. Hanson v. Board of Health, lxxxv. 599 ; 5 E. & B. 599. Rates not showing by what authority and for what purpose levied, are void. Regina v. Eastern Counties Railway Co., Ixxxv. 974; 5 E. & B. 974. Description of property as " land, &c," slovenly, but not sufficient to make rate wholly void. Ibid. Under 9 Geo. 4, c. 26, no appeal from order of commissioners for payment of expenses, by one who moved resolution at meeting of ratepayers authorizing these expenses. Harrup v. Bayley, lxxxviii. 218 ; 6 E. & B. 218. Sewer rate not invalid, because accompanied with a provision for compound- ing it, or because no arrangement made for houses to be afterward built. Regina v. Warner, lxxxviii. 395 ; 6 E.-& B. 395. _ Where several parishes maintaining their own highways are comprised within district assigned to local board of health, the highways are to be maintained by 382 EATES AND LEVIES, III. a general district rate. Mosely v. Local Board of Health, lxxxviii. 518 ; 6 E. & B. 518. Consent of a committee which, with the churchwardens, was authorized to bor- row, presumed after payment of interest for many years. Regina v. St. Michaels, lxxxviii. 807 ; 6 E. & B. 807. Agreement that a sum due contractors should be considered a loan, held a bor- rowing. Ibid. Liability of ratepayers for bonds given for this debt not lost through nonpay- ment of principal for twenty years. Ibid. Under 52 Geo. 3, c. 195, the Regent's Canal Company is rateable for lands, purchased after the passage of the act, held in trust for them and occupied by them as a reservoir. Regent's Canal Co. v. Hendon, lxxxviii. 852 ; 6 E. & B. 852. An appeal from poor rate cannot be dismissed for want of notice, but must be continued. Regina v. Eyre, lxxxviii. 992 ; 6 E. & B. 992. Arrears of highway rate laid by highway board, under 5 & 6 Wm. 4, c. 50, s. 18, payable after expiration of that board, to district board, under 18 & 19 Vict. c. 120. Regina v. Ingham, xc. 5 ; 7 E. & B. 5. Board of Health not bound to make an estimate of the annual expense of re- Eairs, before contracting for a work requiring none. Cunningham v. Wolver- ampton, xc. 107 ; 7 E. & B. 107. Party rated having, during progress of an appeal in which the rate was re- duced, paid the larger sum, may be credited with the excess on account of subse- quent rates. Regina v. Parker, xc. 155 ; 7 E. & B. 155. Magistrates having found a fact which made a rate bad,~court refused to review their decision on motion for issue of a warrant. Regina v. Dunn, xc. 220 ; 7 E. & B. 220. Collectors of poor rates entitled to the rate-books. Regina o. Overseers of Christ Church, xc. 409 ; 7 E. & B. 409. Sewer rate, under 11 & 12 Vict. c. 112, can only be impeached by appeal to the commissioners. Board of Works v. Vauxhall Bridge Co., xc. 964 ; 7 E. & B. 964. Semble, that the rate should be levied, under that statute, according to the benefit which the property derives. Ibid. A rate, under the Public Health Act of 1848, is not void because not pub- lished in the same manner as the poor rate. Le Feuvre v. Miller, xcii. 321 ; 8 E. & B. 321. Highways within a district must be repaired by a district rate, and not a high- way rate, though the district composed of one parish. Taff Vale Railway Co. v. Cardiff Board of Health, xcii. 535 ; 8 E. & B. 535. Where local board of health consented to a judgment with a stay of execution, a mandamus to compel them to levy a rate may issue within six months of the expiration of the stay. Regina v. Rotherham Local Board, xcii. 906 ; 8 E. & B. 906. Rate not invalid because not showing on its face the source of the authority. Christie v. St. Luke's Chelsea, xcii. 992 ; 8 E. & B. 992. Not because the precept was directed to the overseers of the poor instead of the guardians. Ibid. Not because it was not signed by the guardians as guardians. Ibid. Water for a horse and washing a carriage in private use, is for " domestic use," within 18 & 19 Vict. c. 29. Busby v. Chesterfield Waterworks Co., xcvi. 176; E., B. &E. 176. The obligee of a bond containing a provision that not less than one-fifth should be paid each year, charged on the poor rates under 6 & 7 Wm. 4, c. 96, s. 3, may enforce payment from rates after the five years, if not negligent. Regina v. Hurstbourne Tarrant, xcvi. 246 ; E., B. & E. 246. Where a rate is good on its face, and unappealed from, the justices cannot refuse their warrant on the ground that there might have been an appeal. Re- gina v. Kingston & Philips, xcvi. 256 ; E., B. & E. 256. Qucere, after a rate has been quashed, but levied, what is the next effective rate, under 41 Geo. 3, c. 23, on account of whieh the payments are credited. Regina v. Kingston & Wedd, xcvi. 259 ; E., B. & E. 259. Under sect. 7 of 53 Geo. 3, c. 127, the justices have no jurisdiction, if the va- KATES AND LEVIES, III. 383 lidity of the rate be bona fide questioned, and they cannot arbitrarily disbelieve the bona fides. Regina v. Nunneley, xcvi. 852 ; E., B. & B., 852. A composition of water rate, under 13 and 14 Vict. c. 80, being based upon the rental, the owner cannot diminish it by deducting from the rent the amount of poor and other rates paid by him through arrangement with the occupiers. Rook v. Mayor of Liverpool, xcvii. 240 ; 7 C. B. N. S. 240. Production of the composition paper and proof that no demand had been made upon the tenants for water rates, is sufficient evidence of the composition. Ibid. If a rate assessment involves the fraction of a farthing, the demand of the whole farthing is illegal. Morton v. Brammer, xcviii. 791 ; 8 C. B. N. S. 791. Magistrates cannot summarily enforce payment of a church rate by a Quaker, where title bona fide in question. Backhouse v. Bishopwearmouth, xcix. 315; 9 C. B. N. S. 315. Notice affixed to the^church that the wardens, overseers and principal inhabit- ants of this parish are requested to meet in the vestry to examine the wardens' accounts and grant them a rate, is sufficient. Rand v. Green, xcix. 470 ; 9 C. B. N. S. 470._ Exemption because occupation not beneficial, furnishes ground of appeal against the rate, but not for an action in respect to a levy made to enforce it. Mersey Docks Trustees v. Cameron, xcix. 812; 9 C. B. N. S. 812. Affirmed in House of Lords on other grounds, cxiv. 867 ; 18 C. B. N. S. 867. 11 & 12 Vict. c. 44, does not protect a magistrate who, without jurisdiction, issues a distress warrant for a poor rate. Pedley v, Davis, c. 492 ; 10 C. B. N. S.492. But the collector obeying the warrant is protected by 24 Geo. 2, c. 44, s. 6. Ibid. The power of the governors, under 26 Geo. 3, c. 114, and 5 Geo. 4, c. 74, to make rates, is taken away by 18 & 19 Vict. c. 120, and 19 & 20 Vict. c. 112. Regina v. Rendle, ci. 54 ; 1 B. ft S. 54. 15 & 16 Vict. c. 81, applies only to boroughs not subject to contribute to the county rate. Regina ». Overseers of Huddersfield, ci. 961 ; 1 B. & S. 961. To be eligible as a commissioner, under 1 & 2 Vict. c. 33, a party's name must be known to parish officers at the time of making the rate and be inserted in it. Regina v. Eddowes, cii. 330 ; 1 E. & E. 330. Under the local acts, 2 Geo. 2, c. 10, s. 19, the vestry had power to make poor rates. Vaughan v. Imray, cii. 633 ; 1 E. & E. 633. By 18 & 19 Vict. c. 120, and 19 & 20 Vict. c. 112, this power was transferred to the new vestry created by the former act. Ibid. Notice of the allowance of a rate need not be signed, and is sufficiently pub- lished if affixed to the church door before afternoon service on the following Sunday. Burnley v. Methley, cii. 789 ; 1 E. & E. 789. The application of a ratepayer, for a mandamus to allow him to inspect parish accounts, must show some tangible public ground. Ex parte Briggs, cii. 881 ; 1 E. & E. 881. Retrospective rates for " charges and expenses," within s. 89 of 11 & 12 Vict. c. 63. Ward v. Lowndes, cii. 940 ; 1 E. & E. 940. The authority to make a rate for the ''repairs of district church," under 58 Geo. 3, c. 45, means a rate for the maintenance of the church edifice, for the cel- ebration of divine service therein, and the performance of the ordinary duties of a churchwarden. Regina v. Consistory Court, civ. 220 ; 12 C. B. N. S. 220. Justices have no discretion to refuse to enforce a rate unappealed from and good on its face. Luton Board of Health v. Davis, cv. 678 ; 2 E. & E. 678. Where a tithe rent charge, owned by Archbishop of Canterbury, is leased with a covenant by lessee to pay an annual rent to a perpetual curate of another par- ish, to whom such rent had been previously granted by archbishop, under 29 Car 2, c. 88, 1 & 2 Wm. 4, c. 45, the rent paid curate should not be deducted in assessing for poor rate. Regina v. Groves, cv. 794 ; 2 E. & E. 794. A rate good on face and not appealed, must be enforced by justices. The character of the occupation is a question for the Court of Appeals. Regina v. Bradshaw, cv. 836 ; 2 E. & E. 836. Under 30 Geo. 3, c. 82, s. 67, the lands occupied by the canal of the canal company thereby incorporated, are to be rated according to the aggregate value of the adjoining land covered with buildings, brought into hotchpot with the ad- 384 RATES AND LEVIES, III. joining lands of other descriptions. Retina v. Glamorganshire Canal Co., cvii. 186 ; 3 E. & E. 186. It is not to be rated under Parochial Assessment Act as agricultural land only. Ibid. Committee appointed, under 15 & 16 Vict. c. 81, is not limited to summoning persons mentioned in other sections. Regina v. Doubleday, cvii. 501 ; 3 E. & K 501. Any person able to give evidence must appear if summoned, and declining, liable to penalties in s. 8. Ibid. Under 58 Geo. 3, c. 45, b. 70, a rate for the expenses necessary and proper for performance of divine service, is good. Regina v. Consist. Court of' London, ex. 339 ; 2 B. & S. 339. What are such necessary expenses 'within the act. Ibid. Before decision of magistrate, under 53 Geo. 3, c. 127, ». 7, prov. 3, party sum- moned for non-payment may give notice that he disputed validity of church rate and jurisdiction of magistrate is ousted. Ex parte Mannering, ex. 431 ; 2 Under 35 Geo. 3, c. 101, s. 2, after an order of justices directing payment of charges incurred in suspended order of removal, magistrate must issue warrant. Regina v. Higginson, ex. 471 ; 2 B. & S. 471. In such case the validity of the order cannot be inquired into. Ibid. Under Act 1858, s. 65 (Local Government Act), finding of secretary of state upon appeal from local board of health's decision, as to amount due for erection of sewers, &c, is final and conclusive. Wallington v. Willes, cxi. 797 ; 16 C. B. N. S. 797. In application for warrant for distress and sale under rate imposed by vestry, -under local act for temporal purposes, justices have no jurisdiction to consider validity of rate. Wilson v. Sunderland, cxii. 694; 17 C. B. N. S. 694. 5 & 6 Wm. 4, c. 74, does not repeal Sunderland Local Act, allowing vestry of parish to impose rate. Ibid. Where only portion of turnpike is opened, it is within 4 & 5 Vict. c. 59, per- mitting justices to apply part of highway rate for repairs. Roberts v. Roberts, cxiii. 183 ; 3 B. & S. 183. Where a rate has been paid by mistake but no claim made within six months, prescribed by 11 & 12 Vict. c. 63, s. 89, it is not a charge within the act. Bur- land v. Local Board of Health, cxiii. 271 ; 3 B. & S. 271. Costs of indictment for non-repair of highway, when payable out of high- way rate, under 5 & 6 Wm. 4, e. 80, s. 95. Regina v. Haslemere, cxiii. 313 : 3 B. & S. 313. Jurisdiction of justices, under 53 Geo. 3, c. 127, s. 7, is ousted only when the rate is disputed bona fide. Pease v. Chaytor, cxiii. 620 ; 3 B. & S. 620. No action will lie against justices unless begun within three months from act committed. Ibid. It seems, that costs of indictment, under 5 & 6 Wm. 4, c. 50, s. 95, and 23 & 24 Vict. c. 68, s. 40, in disputed liability of parish to repair ways, fall on high- way rate. Regina v. James, cxiii. 901 ; 3 B. & S. 901. A rating, joined in by an assistant overseer, allowed by two justices, duly pub- lished and not appealed against, is valid. Baker v. Locke, cxiv. 52 ; 18 C. B. N. S. 52. Qucere, whether an assistant overseer, under 59 Geo. 3, c. 12, s. 7, has power to .join in levying a rate. Ibid. Under Metropolitan Local Management Act, 18 & 19 Vict. c. 120, purpose of rate must appear to be within the act. Regina v. Ingham, cxvi. 205 ; 4 B. & S. 205. Where purpose appears to be different, rate is bad. Ibid. A parish outside of metropolis is not liable to rate, except as provided by s. 181 of said act. Ibid. Where a parish is clearly within a union, justices have no discretion, under 2 & 3 Vict. c. 84, s. 1, as to issuing their warrant for levying the amount. Re- gina v. Boteler, cxvi. 959 ; 4 B. & S. 959. A rule will issue to justices, under 11 & 12 Vict. c. 44, s. 5, improperly refus- ing to issue warrant for the payment of poor rates. Ibid. In assessing to the poor rate a deduction should be made in respect to the RATES AND LEVIES, III. REMAINDER. 385 general and local sewers rates and taxes on the property. Regina v. Dare, cxvii. 685 ; 5 B. & S. 785. And for the maintenance of a sluice and sea-wall. Ibid. Under the Public Health Act, 11 & 12 Vict. c. 63, s. 149, a rate without the seal of the local board is invalid. Regina v. Worksop, cxvii. 951 ; 5 B. & S. 951. The same rate may include past and future expenses. Ibid. It should not lump expenses of a different class, but qucere, whether this defect would invalidate the rate. Ibid. A sewer rate, under 18 & 19 Vict. c. 120, is not invalid because apportioned solely with reference to the value of property, and not according to benefits to be derived. Pew v. Board of Works, cxviii. 235 ; 6 B. & S. 235. An order of the Quarter Sessions, under 4 Geo. 4, c. 64, will excuse the gov- ernor of a house of correction in Middlesex from receiving a prisoner committed by justices, under 20 & 21 Vict. c. 118, for non-payment of rates. Regina v. Coldbath Fields Prison, cxviii. 352; 6 B. & S. 352. An order for the commitment of a person in Middlesex for the non-payment of rates should be under 52 Geo. 3, c. 209, to Whitecross Street Prison. Regina v. Whitecross Street Prison, cxviii. 371 ; 6 B. & S. 371. The statutory liability to rates is of a civil not criminal nature. Ibid. Under 11 & 12 Vict. c. 63, s. 89, a mandamus may issue to compel the local board to levy a rate in aid of a judgment within six months after it has been obtained, though the action was commenced more than six months after the cause accrued, if the delay was not undue. Worthington v. Hulton, cxviii. 943 ; 6 B. & S. 943. RELEASE. A release by executors of deceased partner to surviving partners of property held by the firm expressing no consideration, held sufficiently stamped with a common deed stamp. Steer v. Crowley, cviii. 337 ; 14 C. B. N. S. 337. A composition release held void as to non-assenting creditors if it applied to them, as unreasonable, under Bankruptcy Act 1861, s. 192. Lyse ». Wyatt, cxiv. 593; 18 C.B.N. S. 593. If it did not apply, not binding on them as not assenting. Ibid. A release in a composition deed does not extend to a co-debtor. Andrew v. Macklin, cxviii. 201 ; 6 B. & S. 201. A composition deed under the bankruptcy act, which does not contain a re- lease, is no bar to a subsequent action. Jones v. Morris, cxviii. 198 ; 6 B. & S. 198. REMAINDER. Devise to A. for life, remainder to her children, and in default of issue to B. in fee, all the residue of the estate to A. A., after death of testatrix, conveyed to C, and died without issue. Held, this conveyance merged the life estate in the reversion, and destroyed the contingent remainder in B. Bgerton v. Massey, xci.338; 3 0. B. N. S. 338. The admittance of tenant for life, on a surrender to the use of the will in a copyhold, is an admittance of those in remainder. Smith v. Glasscock, xciii. 357; 4 C.B.N. S. 357. After such admittance, one remainderman who gets himself admitted in respect of the whole as heir at law of the devisor, has no title to the share of another remainderman as against a stranger in possession. Ibid. To A. for life, remainder to unborn children of A., and in case of the death of A. without having a child, which, if a son, shall attain to twenty-three, or a daughter, to twenty-one, then over : held, that the limitation over, containing two contingencies, one of which was too remote, was divisible, and the remainder good. Evers v. Challis, cii. 1091 ; 1 E. & E. 1091. Remainder, when construed as vesting in interest at death of testator. Rich- ardson v. Power, cxv. 780 ; 19 C. B. N. S. 780. Vol. III.— 25 386 REPLEVIN. SCIRE FACIAS. REPLEVIN. Bond of a party removing suit out of county court, under 9 & 10 Vict. c. 95, s. 121, is forfeited, unless he wins the case. Tummons v. Ogle, lxxxviii. 571 ; 6 E. & B. 571. Does not lie where bailee gave defendant possession of the goods, with intent to create a lien in him as against plaintiff, bailor. Mennie v. Blake, lxxxviii. 842; 6B. &_B. 842. ■ Does not lie for goods levied upon under a rate, on the ground that the owners were exempt because their occupation not beneficial. Mersey Docks Trustees v. Cameron, xcix. 812 ; 9 C. B. N. S. 812. Affirmed, on another point, in House of Lords, this point being waived, cxiv. 867; 18 C.B.N. S. 867. Avowries that goods taken in close A. were for rent due on a demise of A., and goods taken in close B., for rent due on a demise of B., are good, though a sepa- rate distress was not made on each close, but the distress was joint. Phillips v. Whitsed, cv. 804 ; 2 E. & E. 804. What constitutes an action of replevin. Gay v. Matthews, cxvi. 425, 440 ; 4 B. & S. 425, 440. Acts 24 Geo. 2, c. 44, s. 6, 2 & 3 Vict. c. 93, s. 8, and 1 & 2 Wm. 4, c. 41, s. 19, requiring demand of warrant from constable and one month's notice of action, held not to apply to action of replevin. Ibid. In an action of replevin where title to land arises in question, admissions by conduct of one of the parties, are evidence. Richards v. Morgan, cxvi. 641 ; 4 B. &S. 641. Replevin can be maintained where title is in question, under 19 & 20 Vict. c. 108, subject to defendant's right of removal, under sectt 67 of said act. Ford- ham v. Akers, cxvi. 570 ; 4 B. & S. 578. SCIRE FACIAS. Rule for, against shareholder in railway company, not enlarged on affidavit that the claim -was contracted ultra vires. Edwards v. Railway Co., Ixxxix. 397 ; 2 C. B. N. S. 397. Affidavits for scire facias against shareholder of a joint stock company are properly entitled of the original action. Edwards v. Kilkenny Railway Co., xci. 786,787; 3 C. B. N. S. 786, 787. Need not expressly state that the judgment remains unsatisfied. Ibid. That the works were not completed within the time limited by act of incorpo- ration, is no answer. Ibid. Administrator de bonis non may commence proceedings in error on a judgment against the administrator by writ of scire facias ad audiendum errores./ Cur- lewis v. Earl of Mornington, xcvi. 1107 ; E., B. & E. 1107. Scire facias will not be allowed against one as shareholder in a company, un- less there is reasonable ground for believing him such. Edwards v. Kilkenny & G. "W. Railroad Co., cviii. 526 ; 14 C. B. N. S. 526. "Will not issue against one not clearly a shareholder. Mather v. Nat. Assurance Association, cviii.' 676; 14 C. B. N. S. 676. SEDUCTION. SET-OFF, I., II. (a). 387 SEDUCTION. A father cannot bring an action per quod for the seduction of a daughter who rents a house and carries on business, helping to support the mother and part of the family, who live with her. Manly ». Field, xcvii. 96 ; 7 C. B. N. S. 96. Where A. hires daughter of B. during the day, and seduces her, but she lives with and serves her father during the rest of the day, B. can maintain an action per quod servitium amisit. Kist v. Vaux, cxvi. 409 ; 4 B. & S. 409. SET-OFF. I. Between what parties Set-off al- (6) Set-off of judgment. lowed. (c) Other demands that may be II. What demand may be Set-off. Set-off. (a) Mutual debts where one par- III. The pleadings, ty has become bankrupt. IV. Proceedings. I. Between what parties Set-off allowed. Set-off to principal, arising after maturity of note, does not discharge surety. Strong v. Foster, lxxxiv. 201 ; 17 C. B. 201. Executors cannot set-off an account stated with them as executors against a debt due by testator. Mardall v. Thellusson, lxxxviii. 976 ; 6 E. & B. 976. What would be a legal set-off between the parties is good as an equitable set- off, though held in trust for defendant. Cochrane v. Green, xcix. 44S : 9 C. B. N. S. 448. A judgment against the plaintiff is a good set-off, though plaintiff's claim was assigned before the judgment, with notice to defendant, and plaintiff sues as trustee for the assignee of the claim. Watkins v. Clark, civ. 277 ; 12 C. B. N. S. 277. A municipal corporation, which was also manager of public baths, under 9 & 10 Vict. c. 10, and also of board of public health, under 11 & 12 Vict. c. 63, kept three separate accounts in a bank. The balance due on the bath and health ac- counts is a good set-off, in an action by the bank for balance due it on the other account. Pedder v. Mayor, &e., of Preston, civ. 535 ; 12 C. B. N. S. 535. No set-off for damage to goods by default of master and crew against suit for freight. Dakin v. Oxley, cix. 646 ; 15 C. B. N. S. 646. Where it appears by Scotch law that in mutual debts, the balance only can be recovered, in suit in England by trustee of Scotch bankrupt, he is limited to that. MacFarlane v. Norris, ex. 783 ; 2 B. & S. 783. There can be no set-off against principal for debt of factor, where agent of purchaser knew that factor was dealing for the principal, whether knowledge was acquired in transaction or not. Dresser v. Norwood, Ex. Ch., reversing C. P.,cxii. 466 ; 17 C. B. N. S. 466. Buyer knowing that seller is agent though principal unknown cannot set-off debt of agent. Semenza v. Brinsley, cxiv. 467 ; 18 C. B. N. S. 467. II. What demand mat be Set-off. {a) Mutual debts where one party has become bankrupt. Under 12 & 13 Vict. c. 106, s. 171, a claim for unliquidated damages arising out of same contract may be set off in suit by assignee. Makeham v. Crow, cix. 847; 15 C.B.N. S. 847. In an action against contributory of joint stock company by liquidators to recover call, under 21 & 22 Vict. c. 60, s. 17, the defendant can set off a claim due him from the company. Garnet Gold Mining Co. v. Sutton, cxiii. 321 ; 3 B. & S. 321. 388 SET-OFF, II. (Z>), (c), III. (6) Set-off of judgment. Is subject to lien of costs and to equitable rights acquired. Simpson v. Lamb, xc. 84 ; 7 E. & B. 84. A judgment against the plaintiff is a good set-off, though plaintiff's claim was assigned before the judgment, with notice to defendant, and plaintiff sues as trustee for the assignee of the claim. Watkins v. Clark, civ. 277 ; 12 C. B. N. S. 277. A set-off was allowed of cross-judgments, even where the holder of first judg- ment had become bankrupt before the obtaining -of the second judgment. Alli- ance Bank v. Holford, cxi. 460 ; 16 C. B. N. S. 460. (c) Other demands that may be set off. Insurance broker has no right to retain premiums due executors until the risks on policies underwritten by the testator are adjusted. Beckwith v. Bullen, xcii. 683 ; 8 E. & B. 683. Where plaintiff requested defendant to treat his agent as a principal, in a transaction whereby defendant was induced to give the agent credit in other matters, these charges are not a set-off in an action for the money received in the transaction. Ferrand v. Bischoffsheim, xciii. 710 ; 4 C. B. N. S. 710. A claim on a joint and several promissory note may be set off in a suit by one of the makers. Owen v. Wilkinson, xciv. 526 ; 5 C . B. N. S. 526. Against interlocutory costs after jiidgment, may be set off a judgment in the same suit upon which the ca. sa. has been executed. Thompson v. Parish, xciv. 685 ; 5 0. B. N. S. 685. Where two persons have each consigned goods to a third, to be sold, and to have the net proceeds of each consignment credited one-half to each, and this is done with one consignment, but the order is countermanded by the consignor of the other consignment, and the whole proceeds of the latter are placed to his credit, in a suit by consingee against first consignor, these facts constitute a good equitable set-off. J Elkin v. Baker, ciii. 526 ; 11 C. B. N. S. 526. An attorney's claim for services and disbursements is a good set-off to a claim for indemnity for costs, though he has presented no bill. Brown v. Tibbits, ciii. 856 ; 11 C. B. N. S. 856. To authorize plea of set-off, plaintiff's demand must be liquidated. Crampton v. Walker, cxii. 321 ; 3 E. & E. 321. Claim of costs incurred but not paid, not a liquidated demand. Ibid. When indebitatus assumpsit will lie, the demand is liquidated and subject to set-off. Ibid. What claims can be set off, and what are subject of set-off, in the various states of the United States, discussed in Am. Ed. note. Crampton v. Walker, cvii. 332 ; 3 E. & E. 332. No set-off for costs will be allowed in different causes, to the prejudice of at- torney's lien, under Reg. Gen. Hil., 2 Wm. 4, s. 93. Little v. Philpotts, ex. 383 ; 2 B. & S. 383. A claim for unliquidated damages cannot be set off against a claim of liqui- dated damages. Speeding v. Young, cxi. 824 ; 16 C. B. N. S. 824. Set-off of claim for general average in respect to timber lawfully laden on deck according to charter-party, endangering safety of vessel, is good. Johnson v. Chapman, cxv. 563 ; 19 C. B. N. S. 563. Setoff against claim for freight, good. Wilson v. Gabriel, cxvi. 243 ; 4 B. & S. 243. Even where there has been an assignment of freight before suit brought. Ibid. And notice of assignment given to holder of set-off. Ibid. But, quaere, if notice had been given before set-off accrued. Ibid. Replication on equitable grounds, when bad. Ibid. III. The pleadings. Count for money had and received, plea tender of certain sum, replication that demand was an entire contract for a larger amount than the tender, and rejoinder set off reducing amount to tender, held rejoinder was bad. Searles v. Sadgrave, lxxxv. 639 : 5 E. & B. 639. SET-OFF, IV. SEWERS. 389 IV. Proceedings. Where set-off to plaintiff '» claim reducing the amount below 20Z., costs taxed upon the lower scale. Tonge v. Chadwick, lxxxv. 950 ; 5 E. & B. 950. Where amount recovered in suit, which could have been brought in county court, is reduced below 20Z. by set-off, no costs allowed. Ashcroft v. Foulkes, lxxxvi. 261 ; 18 0. B. 261. Where defendant, by set-off, reduces amount recovered in superior court be- low 20J., plaintiff is not entitled to costs, under 13 & 14 Vict. c. 61, s. 11. Beard v. Perry, ex. 493 ; 2 B. & S. 493. The rule is otherwise in like cases in the United States. Am. Ed. note. Ibid. SEWERS. Sewer rate not invalid, because accompanied with a provision for compounding it, or because no arrangement made for houses to be afterward built. Regina v. Warner, lxxxviii. 395 ; 6 E. & B. 395. Sewer rate, under 11 & 12 Vict. c. 112, can only be impeached by appeal to the commissioners. Board of Works v. Vauxhall Bridge Co., xc. 964 : 7 E. & B. 964. Semble, that the rate should be levied under that statute according to the ben- efit which the property derives. Ibid. Houses using a sewer in an adjoining district not assessable by the latter. Regina v. Tatham, xcii. 915 ; 8 E. & B. 915. A marsh wall keeping out the tide is a sewer, within 18 & 19 Vict. c. 120. Poplar Board of Works v. Knight, xcvi. 408 ; E., B. & E. 408. A lease, reserving to the lessor a right to make a covered sewer on the land to convey away his drainage, gives him an exclusive right to its use. Lee v. Stevenson, xcvi. 512 ; E., B. & E. 512. Levies for sewers may be apportioned among the parishes, by district board, in their discretion, under 18 & 19 Vict. c. 120 (Metropolitan Management Act 1855). St. Botolph v. Whitechapel, cvii. 89 ; 3 E. & E. 89. How far houses can be re-assessed for extension of sewers, to remove a nui- sance, under 18 & 19 Vict. c. 121, s. 22. Regina v. Bodkin, cvii. 271 ; 3 E. & E. 271. Under 18 & 19 Vict. c. 121, s. 22, before throwing expenses on highway rates, houses, buildings and premises using the sewer must be assessed. Regina v. Gosse, cvii. 277 ; 3 E. & E. 277. Board of Health liable for sewers, &c, to contractor, where proper notice to owners of property, under Public Health Act, 11 & 12 Vict. c. 63, has not been given. Worthington v. Sudlow, ex. 508 ; 2 B. & S. 508. Quaere, If the payment by the owners had been a condition precedent. Ibid. Mains and pipes of gas company, deriving benefit from sewer, not being entitled to exemption, under 18 & 19 Vict.,c. 120, ss. 161, 163, 164. liable to full rate. Regina v. Head, cxiii. 419 ; 3 B. & S. 419. Metropolitan Board of Works liable, as successor to commissioners, to dam- ages for injury caused by erection of sewer, under 18 & 19 Vict. c. 120, and 11 & 12 Vict. c. 120. Pettiward v. Board of Works, cxv. 489 ; 19 C. B. N. S. 489. }8 & 19 Vict. c. 120, does not authorize a district board of works to pollute, by sewage, water flowing through the lands of another. Cator v. Lewisham, cxvii. 115; 5B. &S. 115. A natural stream draining agricultural lands does not, because it comes within the ambit of a borough, and some houses drain into its lower end, become a sewer, within 11 & 12 Vict. c. j63, s. 43. Regina v. Godmanchester, cxvii. 886 ; 5 B. & S. 886. Affirmed in Exchequer Chamber, Ibid. 936. A sewer rate, under 18 & 19 Vict. c. 120, is not invalid because apportioned solely with reference to the value of property and not according to benefits to be derived. Pew v. Board of Works, cxviii. 235 ; 6 B. & S. 235. 390 SHERIFF, L, II. (a), (6), III., (a). SHERIFF. I. Writ of trial to Sheriff. (d) Other matters relating to II. Rights of Sheriff. arrest. (a) Right to fees and poundage. (e) Proceedings by Sheriff under (6) Interpleader. fieri facias. III. Liability of Sheriff. ( f ) Return to fi. fa. la) Liability for acts of officer. (g) Action against Sheriff for (6) Action against Sheriff for false return. not arresting. IV. Procedings by and against Sheriff, (o) Liability for escape. V. Other matters relating to Sheriff. I. Writ of trial to Sheriff. On a writ of trial, record may be withdrawn. Shaw v. Owen, lxxxiv. 524 ; 17 C. B. 524. Rule for new trial, in case tried by sheriff, not granted, unless affidavit verify- ing his notes is made within four days. Sante v. Hicks, lxxxiv. 523 ; 17 C. B. 523. II. Rights of Sheriff. (a) Right to pees and poundage. Not entitled to fees from party having his cause tried by special jury, under Common Law Procedure Act. Bennett v. Thompson, lxxxviii. 683 ; 6 E. & B. 683. Liable to attachment for charging more than 6d. per mile, mileage. Gill v. Jose, lxxxviii. 718 ; 6 E. & B. 718. Under 7 Wm. 4 & 1 Vict. c. 55, sheriff is entitled to 1Z., Is. for arresting on a ca. sa. within a mile of his residence and also to travelling expenses. Cooper v. Hill, xcv. 703 ; 6 C. B. N. S. 703. But not to fees for an assistant or for conducting defendant to gaol. Ibid. Sheriff is not entitled to poundage when, after seizure and before sale, judg- ment and subsequent proceedings are set aside for irregularity. Miles v. Harris, civ. 550; 12C.B. N. S. 550. General rule as to fees of sheriff, &c. cxvii. 721 ; 5 B. & S. 721. (6) Interpleader. Suit by the holder against the acceptor of a draft sent by a husband to his wife, drawn to her order and which he had notified acceptor not to pay, is not a case for an interpleader. Baker v. Bank of Australasia, Ixxxvii. 515; 1 C. B. N. S. 515. Where each party partially successful costs are to be taxed on that principle without reference to which was plaintiff or defendant. Clifton v. Davis, lxxxviii. 392 ; 6 E. & B. 392. Creditor cannot levy on goods conveyed by bill of sale because of a prior bill of sale void as to creditors but good as to others. Edwards v. English, xc. 564 ; 7 E. & B. 564. An equitable claim is not the subject of an interpleader summons. Hurst v. Sheldon, cvi. 750 ; 13 C. B. N. S. 750. Interference with sheriff by sale and removal of goods after interpleader is contempt of court, under 1 & 2 Wm. 4, c. 58. Cooper v, Asprey, cxiii. 932 -, 3 B. & S. 932. Error lies on a judgment in an interpleader issue. Gunim v. Tyrie, cxviii. 298; 6B. &S. 298. III. Liability of Sheriff. (a) Liability for acts of officer. Where sheriff gave bailiff a warrant to execute a fi. fa. and bailiff gave it to assistant, sheriff responsible for acts of the latter. Gregory v. Cotterell, lxxxv. 571 ; 5 E. & B. 571. Payment to bailiff's assistant good as against sheriff though he never received the money. Ibid. SHERIFF, III, (b), (e), (d), («), (/), (g), IV., V. 391 (6) Action against Sheriff foe not arresting. No justification of the sheriff after arresting under an invalid writ that he claimed to hold under a valid writ, but defendant was discharged. Hooper v. Lane, xcii. 1095 ; 8 E. & B. 1095. (c) Liability for escape. Sheriff, having on payment of debt, discharged defendant on a ca. sa., and paid the money to the clerk of plaintiff's attorney, who absconded with it, is not liable for the escape. Hemming v. Hale, xcvii. 487 ; 7 C. B. N. S. 487. The sheriff is not liable in an action for an escape in the discharge of a debtor taken on a ca. sa., on the production by him of a certificate, under s. 198 of 24 & 25 Vict. c. 134, signed by the registrar in bankruptcy, to the effect that a com- position deed has been duly registered, though the deed is invalid. Lloyd v. Harrison, cxviii. 36 ; 6 B. & S. 36. (d) Other matters relating to arrest. Where sheriff arrested one, who declared herself falsely to be the defendant in the writ, he is liable for her detention after notice. Dunston v. Paterson, lxxxix. 495; 2 0. B.N. S. 495. Quaere, whether she would be estopped from suing for original taking. Ibid. (e) Proceedings by Sheriff under fi. fa. An endorsement on a fi. fa., of judgment debtor's residence, is not mandatory on sheriff, and the execution creditor is not responsible to sheriff for damages he may suffer from following endorsement on writ. Childers v. Wooler, cv. 287 ; 2 B. & E. 287. , After levy, when sheriff is notified of act of bankruptcy, and petition subse- quently filed, he is not entitled to costs of preparing goods for sale. Searle v. Blaise, cviii. 856 ; 14 C. B. N. S. 856. Under-sheriff has authority, even when appointed verbally, to execute bill of sale in proceedings on a fi. fa. Robinson v. Collingwood, cxii. 777 ; 17 C. B. N. S. 777. Interference with sheriff in proceeding, under fi. fa., is contempt of court. Cooper v. Asprey, cxiii. 932 ; 3 B. & S. 932. {f) Return to fi. fa. Defendant may rule sheriff to return an executed fi. fa. Richardson v. Trundle, xcviii. 474; 8 C. B. N. S. 474. (g) Action against Sheriff for false return. Not necessarily damages for a writ of venditioni exponas, after a false return on the fi. fa. of goods in hand. Levy v. Hale, xcviii. 881 ; 8 C. B. N. S. 881. Plaintiff who has sustained no damage, has no cause of action. Ibid. Action does not lie for a false return, which is immaterial. Lloyd v. Harri- son, cxviii. 36 ; 6 B. & S. 36. IV. Proceedings by and against Sheriff. Semble, that practice to allow money to be paid at office of bailiff, is good evi- dence against sheriff. Gregory v. Cotterell, lxxxv. 571 ; 5 E. & B. 571. Action does not lie by sheriff's officer against attorney for charges in serving a writ. Cole v. Terry, ci. 998 ; 1 B. & S. 998. V. Other matters relating to Sheriff. Under-sheriff, appointed verbally or otherwise, has authority to exercise all the ordinary offices of sheriff. Robinson v. Collingwood, cxii. 777 ; 17 C. B. N. S. 777. Hence he has authority to execute bill of sale in proceeding on a fi. fa. Ibid. After seizure of goods by sheriff and subsequent interpleader by him, sale and removal of goods by persons without authority of court, is contempt. Cooper v. Asprey, cxiii. 932 ; 3 B. & S. 932. This is so both at common law and under 1 & 2 Wm. 4, c. 58 (Interpleader Act). Ibid. 392 SHIPPING, I. (a), (6), II. (a). SHIPPING. I. Registry acts. (g) Other matters as to lien, (a) Their effect on ownership VII. Particular statutes. and their object. VIII. Of the master. (6) On mortgage. (a) Liability. II. Owner, generally. IX. Consignor and consignee, fa) His liability. (a) Actions by. (6) Of part owners. (6) Actions against. III. The mortgagee. X. Transfer of the cargo. IV. The charterer. U) By the master. V. The charter-party. (6) Under bill of lading and (a) Covenants therein. its effect. (6) Construction of. XI. General average. VI. Freight. XII. Demurrage. (a) When payable. XIII. Of the voyage. (6) Liability for. (a) Abandonment of. (c) Who may sue. (ft) Illegal voyage. (d) Other matters as to pay- XIV. Navigation of vessel. ment. XV. Court of admiralty. (e) Lien of owner. XVI. Seamen. (/) Lien of owner after char- XVII. Other matters, ter-party. I. Kegistet acts. (a) Their effect on ownership and their object. Court will look beyond registry to determine ownership. Myers v, Willis, lxxxiv. 77 ; 17 C. B. 77. Affirmed in Ex. Ch., lxxxvi. 886 : 18 C. B. 886. Am. Ed. note, lxxxvi. 892 ; 18 C. B. 892. The fact of being registered as part owner does not make party liable for re- pairs contracted by -co-owner without his consent. Brodie v. Howard, lxxxiv. 109 ; 17 C. B. 109. Registry as part owner, under absolute bill of sale given to secure advances, does not make one liable for repairs ordered by managing owner. Hackwood v. Lyall, lxxxiv. 124 ; 17 C. B. 124. Semble, that registry not even prima facie evidence of ownership. Ibid. 17 & 18 Vict. c. 104, s. 50, makes a pledge of the certificate illegal and void. Wiley v. Crawford, ci. 253 ; 1 B. & S. 253. And an action lies for damages caused by its detention after demand though the master and owner pledged it. Ibid. (6) On mortgage. 17 & 18 Vict. c. 104, s. 66, does not prevent the owner of a ship who has ex- ecuted an absolute transfer from showing that it was really a mortgage. Ward v. Beck, cvi. 668 ; 13 C. B. N. S. 668. II. Owner Generally. (a) HlS LIABILITY. One who delivers coals upon vessel sent by purchaser, is not the shipper or owner liable for tolls, under Ribble Navigation Act, 16 & 17 Vict. c. 170. Kibble Nav. Co. v. Hargreaves, lxxxiv. 385 ; 17 C. B. 385. Qucere, can master bind owner for repairs done in London, when owner lives, at Liverpool. Mitcheson v. Oliver, Ixxxv. 419 ; 5 E. & B. 419. On a time policy of insurance, no warranty of seaworthiness. Fawcus v. Sars- field, lxxxviii. 192; 6 E. & B. 192. But owner, though he did not know of unseaworthiness of the vessel, cannot recover, against insurer, expenses of repairs rendered necessary because of it. Ibid. On a time policy of insurance, owner does not warrant seaworthiness. Thomp- son v. Hopper, lxxxviii. 172; 6 E. & B. 172. Not, though the vessel outward bound lay in port where he resided, and he knew her condition. Ibid. SHIPPING, II. (a), (6). 393 But it is a. good defence that he, knowing her to be unseaworthy, sent her to sea at a dangerous time, without master or proper crew, in consequence of which she was wrecked. Ibid. Though bill of lading stipulates against accountability for leakage or breakage, owner liable for such loss occasioned by gross negligence. Phillips v. Clark, lxxxix. 156 ; 2 C. B. N. S. 156. Owner liable, where he appointed master and crew, chartered the vessel to third parties for a lump sum, who put it up as a general ship, and the master, under his order, refused to deliver goods on demand. Schuster v. McKellar, xc. 704; 7B. &B.704. Where goods were shipped from London to Calcutta, at " 39*. per ton, payable in London," it was held a question for the jury whether the contract was for "freight," or for a sum payable on receipt of the goods on board ship. Lid- gett v. Perrin, ciii. 363 ; 11 C. B. N, S. 363. Where a charter-party provided that the charterer might employ stevedores to assist in the stowage, but such stevedores being under directon of master, he was not to be responsible to owner for improper stowage, the owner is liable for any such damage. Sack v. Ford, cvi. 90 ; 13 C. B. N. S. 90. Where the loss is occasioned through negligence and misconduct of shipper, as in unseaworthy vessel, he cannot recover against owner of cargo for average loss. Schloss ». Heriot, cviii. 59 ; 14 C. B. N. S. 59. And it seems, also, on the ground of avoidance of circuity of action. Ibid. 18 & 19 Vict. c. Ill, s. 3, makes a bill of lading conclusive evidence that the goods were put on board, against the master, but not against the owner. Meyer v. Dresser, cxi. 646 ; 16 C. B. N. S. 646. Duties and liabilities of shipowner, under 24 & 25 Vict. c. 63, s. 67. Berres- ford «. Montgomerie, cxii. 379 a; 17 C. B. N. S. 379 a. An exception from liability in the charter-party during the voyage will include the transit to place of loading, for which transit the charter-party provided. Barker ». McAndrew, cxiv. 759 ; 18 C. B. N. S. 759. The words " guaranteed for cargo in all this month," in a charter-party con- taining an exception from liability for certain named accidents, do not, on the happening of such an accident, take the case out of the exception. Ibid. Liable to contribute for general average for freight unpaid. Frayes v. Worms, cxv. 159; 19 C. B.N. S. 159. Expenses in getting out cargo at one of the ports of destination, held to be a ship's disbursement, and shipowner therefore liable. Roberts v. Shaw, cxvi. 45 ; 4 B. & S. 45. Where the amount is paid by charterers' agent, the owner is liable to him as his agent, and not that of charterer. Ibid. No implied authority from him to the master to do that which is a violation of law. Wilson v. Rankin, cxviii. 208 ; 6 B. & S. 208. (6) Op part owners. Part owner not bound for repairs ordered by co-owner without his consent. Brodie v. Howard, lxxxiv. 109 ; 17 C. B. 109. And the mere fact of registry as part owner, does not make him liable. Ibid. Registry as part owner, under absolute bill of sale given to -secure advances, does not make one liable as owner for repairs ordered by managing owner. Hackwood v. Lyall, lxxxiv. 124 ; 17 C. B. 124. That the defendant received a share of the profits, and knew that the one ordering' necessaries was the ship's husband, is evidence of liability. Whitwell v. Perrin, xciii. 412; 4 C. B. N. S. 412. A consignee or endorsee of a bill of lading is not liable for freight, where the bill has been endorsed over to a third person, who receives the goods. Smurth- waite v. Wilkins, ciii. 844; 11 C. B. N. S. 844. Where one of two joint owners of a ship assumes all the liabilities and expenses of working her, and paying the others one-third of the profits, he alone is respon- sible for an injury occurring through his negligence. Bernard v. Aaron, ciii. 889 ; 11 0. B. N. S. 889. Liable for act of managing owner in procuring bail to secure release of vessel in admiralty. Barker v. liighley, cix. 27 ; 15 C. B. N. S. 27. 394 SHIPPING, III.— V. (a), (6). III. The mortgagee. Absolute bill of sale of ship at sea to A. registered in his name, intended as collateral security for debt, does not make him liable as owner for contracts of master. Myers v. Willis, lxxxiv. 77 ; 17 C. B. 77. Affirmed in Ex. Ch., lxxxvi. 886 ; 18 C. B. 886. Court will look beyond registry. Ibid. Registry as part owner under absolute bill of sale given to secure advances, does not make one liable as owner for repairs ordered by managing owner. Hackwood v. Lyall, lxxxiv. 124 ; 17 C. B. 124. Mortgagee is the owner of the ship and the mortgage is valid as to a subse- quent judgment-creditor, though it contain a clause Tor the postponement of the power of sale, and there be no endorsement of the particulars on the certificate of registration. Dickinson v. Kitchen, xcii. 789 ; 8 B. & B. 789. Under a power authorizing the attorney to sign any hypothecation of the ves- sel or her cargo, to sell absolutely or by way of mortgage, and to do all acts about the business aforesaid that the owners could do, a deed by the attorney assigning all the freight, hire, passage-money and earnings, with a proviso for redemption, conveys the right to passage-money paid before arrival or possession taken. Willis v. Palmer, xcvii. 340 ; 7 C. B. N. S. 340. Shipwright has a lien for repairs, ordered by mortgagor, as against mortgagee who permits mortgagor to continue in apparent ownership. Williams v. Allsup, c. 417 ; 10 C. B. N. S. 417. Mortgagee of vessel and freight upon taking possession is entitled to all the rights that the shipowner would have. Gumm v. Tyrie, cxvi. 680 ; 4 B. & S. 680. IV. The charterer. Liable on his agreement to load, though vessel detained by danger of seas beyond time when cargo could be obtained. Hurst v. Usborne, lxxxvi. 145 ; 18 C. B. 145. Not liable for breach of contract to load, if war broke out before loading days expired. Barrick v. Buba, lxxxix. 563 ; 2 C. B. N. S. 563. Stating to the master that he had ceded the charter-party to a third person is not a renunciation. Ibid. Charterer not liable for refusal to load where, after partly loading, he is re- quested to unload, by master, in order that the latter may make repairs, and when he has in the meantime shipped by other vessels. Strugnell v. Friedrich- sen, civ. 452 ; 12 C. B. N. S. 452. Cannot excuse himself from payment of freight to shipowner by abandoning goods, where they have arrived, though damaged by default of master and crew. Dakin v. Oxley, cix. 646 ; 15 C. B. N. S. 646. Not liable for negligence in delivering bills of lading where no duty is imposed upon him by contract of charter-party, circumstances duly stated, or mercantile usage. Dutton v. Powles, ex. 174; 2 B. & S. 174. A charterer is liable for contribution for general average in respect of advances on freight. Frayes v. Worms, cxv. 159 ; 19 C. B. N. S. 159. V. The charter-party. (a) Covenants therein. Agent, for foreign principal, can limit his liability by expressly providing therefor. Milvain v. Perez, cvii. 495 ; 3 B. & B. 495. Hence, when the limitation was against everything but fact of shipping, they are not liable for late shipment. Ibid. (6) Construction of. Defendants entered into charter-party in their own name, " by authority of and agents for" an alien, held personally responsible for demurrage. Lennard v. Robinson, lxxxv. 125 ; 5 E. & B. 125. Provision that ship should proceed to Odessa and there load, but if, when she arrived at Constantinople, war had commenced, she should load at that city, held to mean war between England and Russia. Avery v. Bowden, lxxxv. 714 : 5 E. &B. 714. SHIPPING, V. (6). 395 Affirmed in Ex. Ch., lxxxviii. 953 ; 6 E. & B. 953. Description in charter-party of vessel, as A. No. 1, not warranty that she will continue so during voyage. Hurst v. Usborne, lxxxvi. 144 ; 18 C. B. 144. Where charter-party, for voyage from Sundswall, a Baltic port, to Southamp- ton, provided that the highest freight (not less than 90s.) should be paid, which the owner could prove had been paid for same voyage, held that owner not enti- tled to more than 90s., by showing higher rate paid for voyage to London. Gether v. Capper, lxxxvi. 866 ; 18 C. B. 866. Where charter-party describes the tonnage of the vessel as being of 180 to 200 tons, or thereabouts, it is substantially complied with, if her tonnage is 257^. Barker v. Windle, lxxxviii. 675 ; 6 E. & B. 675. Description of tonnage no warranty. Ibid. Outward cargo to go free, freight on return cargo, 9002. of which to be paid three months after sailing out, owners to have a lien on cargo for all freights, held that owners had a lien on the outward cargo for the 9002. Gilkison v. Middleton, lxxxix. 134 ; 2 C. B. N. S. 134. But where the master had signed bills of lading, agreeing to deliver the goods named in them upon payment of certain freight, and advances had been made on the faith of these bills, the lien was limited to this amount. Ibid. Where cash was to be advanced by charterer, for ship's disbursements, free of interest subject to insurance, it was held an advance, on account of freights, and not a loan. Hicks v. Shield, xc. 633 ; 7 E. & B. 633. Where defendant agrees to load a vessel in the customary manner, he must do it within what would be a reasonable time, under ordinary circumstances. Ad- ams v. Koyal Mail Steam Packet Co., xciv. 492; 5 C. B. N. S. 492. The word " voyage," in a charter-party, means a transit from the terminus a quo to the terminus ad quern. Valente v. Gibbs, xcv. 270 ; 6 C. B. N. S. 270. On a charter-party made by defendant, as agent for an unknown principal, providing for demurrage, and, further, that all liability shall cease as soon as the cargo is shipped, the defendant is not liable for demurrage at port of discharge. Oglesby «. Yglesias, xcvi. 930 ; E., B. & E. 930. Covenants, in consideration of which freight to be .paid, held not to be con- ditions precedent, it appearing not to be the intention of the parties. Seeger v. Duthie, xcviii. 45 ; 8 C. B. N. S. 45. Covenant that if ship be not ready at a certain date, demurrage to be paid at a certain rate, does not apply to delay caused by captain's bona fide but erroneous refusal to receive goods. Ibid. A port which a vessel cannot enter except under penalty of confiscation, is not a "safe port," within meaning of a charter-party. Ogden v. Graham, ci. 773; 1 B. & S. 773. Where the charter-party states that the ship is at a certain place, and will pro- ceed " with all possible dispatch," her being at that place is not a condition pre- cedent to recovery. Behn «. Burness, ci. 877 ; 1 B. & S. 877. Reversed in Ex. Ch., cxiii. 751 ; 3 B. & S. 751. A charter-party, by the terms of which a vessel was required to sail to A. and there receive a load, or so near thereto as she might safely get, is not satisfied by an offer by master of vessel to receive the load outside the bar, at charterer's expense, after he had already received the load inside the bar, and signed bills of lading, but had been compelled to discharge it, in order to cross the bar. Gen- eral Steam Nav. Co. v. Slipper, ciii. 494; 11 C. B. N. S. 494. Where a charter-party was made between owner of a vessel and " Messrs. A. Brothers, as agents to B., merchants and charterers, of the other part," and signed, " For B., A. Brothers, as agents ;" " A. Brothers" are not responsible as principals. Deslandes v. Gregory, cv. 602 ; 2 E. & E. 602. Affirmed in Exchequer Chamber, cv. 611 ; 2 E. & E. 611. A charter-party providing that full cargo should be shipped, prices in propor- tion, except broken stowage at half rate, requires unfilled portion of cargo to be completed by broken stowage. Cole v. Meek, cix. 795 ; 15 0. B. N. S. 795. " Enemies" in charter-party construed as enemies of carrier. Russell v. Nie- mann, cxii. 163 ; 17 C. B. N. S. 163. What amounts to condition precedent, and what to independent agreement. Behn v. Burness, cxiii. 751 ; 3 B. & S. 751 ; reversing s. c. ci. 877 ; 1 B. & S. 877. 396 SHIPPING, V. (6), VI. (a), (6). A descriptive statement, intended to be a substantive part of the agreement, is a warranty. Ibid. Such warranty amounts to a condition, on failure of which the contract may be repudiated. Ibid. Or if the consideration, or greater part of it, has been received, damages may be recovered. Ibid. Am. Ed. note on subject of warranties, and when construed as stipulations or conditions precedent. Ibid. Court will consider material circumstances, in construction of charter-party, as to whether it is a condition or stipulation. Ibid. A guaranty of cargo in charter-party construed as subject to the exception against liability for certain named perils. Barker v. McAndrew, cxiv. 759 ; 18 C. B. N. S. 759. " Dead freight" in charter-party limited, unless intention is clearly otherwise, to damages for cargo not actually shipped which ought to have been by terms of contract. Pearson v. Goschen, cxii. 352 ; 17 C. B. N. S. 352. The warranty of the ship taking a cargo of not less than a specified number of tons, means with reference to ordinary weight and measurement in reasonable proportions. Pust v. Dowie, cxvii. 20 ; 5 B. & S. 20. VI. Freight. (a) When payable. Assignee of bill of lading not bound to pay freight until whole cargo delivered. Moeller v. Young, lxxxv. 755 ; 5 E. & B. 755. Reversing Q. B., Ibid. 7. Where, under a charter to load at a port, or as near thereto as the vessel can reasonably get, a load has been shipped, and subsequently partially unloaded in order to cross a bar, and an offer made to receive outside at consignor's expense what was unloaded, which offer is refused, owners are not entitled to freight or damages for refusal to ship cargo. General Steam Nav. Co. v. Slip- per, ciii. 494 ; 11 C.B.N. S. 494. Freight is payable when the shipper has a right to the cargo. Gumm v. Tyrie, cxvi. 680 ; 4 B. & S. 680. Qucere, where a bill of lading expresses that nothing is to be paid, the cargo being intended to be the shipowner's, but the bill is retained by the shipper, to what extent are the bankrupt shipowners, or their assignees, to be paid for the use of the ship. Ibid. (6) Liability for. Where ship to be in every way fitted for voyage and one-fourth of freight to be paid on her having sailed, held that her being fit was condition precedent to right to recover. Thompson v. Gillespy, lxxxv. 209 ; 5 E. & B. 209. Xien for charter freight is good against an assignee of the bill of lading, who is agent for the charterer and has notice of the charter-party. Kern v. Deslandes, c. 205 ; 10 C. B. N. S. 205. ' Consignee not liable beyond terms of bill of lading, even if vessel charged. Matthews v. Gibbs, cvii. 282 ; 3 E. & E. 282. Qucere, how far does additional expense of procuring another vessel fall on the owner. Ibid, in notes. Qucere, also, how far is it the duty of the master to hire another vessel. Ibid. No right of lien for the excess of freight can be transferred greater than that of the transferror. Ibid. But, it seems, the right to that extent can be transferred. Ibid. Where there is a destruction or sale of cargo, the shippers are not liable for freight. Am. Ed. note. Blasco v. Fletcher, cviii. 147 ; 14 C. B. N. S. 147. Shipper not liable for freight when damaged cargo sold under authority of master, with no attempted revocation by owners until after expenses incurred. Ibid. Charterer liable to ship-owner for freight, where goods have arrived, dam- aged by default of master and crew, though willing to abandon them. Dakin v. Oxley, cix. 646 ; 15 C. B. N. S. 646. His remedy in such case is by a cross action. Ibid. SHIPPING, VI. (5), (c), (cQ, («), (/), (y), VII, 397 Consignee under bill of lading cannot deduot from the freight the value of articles mentioned in bill of lading not put on board. Meyer v. Dresser, cxi. 646 ; 16 C. B. N. S. 646. It seems, that an usage to that effect would be bad. Ibid. The captain of a vessel having settled with charterers' agent, on threats of detention of vessel, by deducting from freight the amount due to agent indi- vidually, the owners are not bound by statement of balance of accounts so set- tled, as between the owners of vessel and charterers. Roberts v. Shaw, cxvi. 45 ; 4 B. & S. 45. The owners were liable to the charterers' agent so advancing the money, it being a ship's disbursement which they were bound to pay. Ibid. The agent in this case, though agent for charterers, was also agent pro hoc vice for owners of vessel. Ibid. The settlement therefore having been made between third parties could not be taken advantage of by charterers so as to authorize recovery by them. Ibid. And the charterer is liable for full amount. Ibid. Where a shipment by bill of lading is on behalf of consignor, mortgagee of vessel and freight is entitled to freight as against consignor's assignee. Gumm v. Tyrie, cxvi. 680 ; 4 B. & S. 680. (c) Who mat sub. Where charterers of a vessel were to pay owners a lump freight for whole voyage, master to make bills of lading on such terms as charterers directed, it was held, on failure of charterers to meet their draft in favor of owners, that their assignees, and not the owners, were entitled to freight due by shippers. Marquand v. Banner, lxxxviii. 232 ; 6 E. & B. 232. (d) Other matters as to payment. Where claim of third party is deducted from freight under threats, it is not a payment. Roberts v. Shaw, cxvi. 45 ; 4 B. & S. 45. (e) Lien op owner. Where part of freight is to be advanced by acceptance of charterer, and accept- ance is given, lien of owner is gone to that extent. Tamvaco v. Simpson, cxv. 453 ; 19 C. B. N. S. 453. (y) Lien of owner after charter-party. Where agent of charterer ships goods, master has no authority to change lien of owner as it exists by charter-party. Pearson v. Goschen, cxii. 352 ; 17 C. B. N. S. 352. But where terms of charter-party are changed under implied authority of master after notice of insolvency of charterer, and in interest of owner, lien would only extend to terms so agreed upon by master. Ibid. The claim in this case was a claim for substituted freight, not dead freight, used as a term in charter-party. Ibid. There was therefore no lien as for dead freight. Ibid. Lien of owner generally, and abandonment of, Am. Ed. note. Pearson v. Goschen, cxii. 379 ; 17 C. B. N. S. 379. (g) Other matters as to lien. Agreement in bill of lading that freight shall be paid by shipper one month after sailing, does not waive the lien. Neish v. Graham, xcii. 505 ; 8 E. & B. 505. Waiver of lien for freight, Am. Ed. note. Tamvaco v. Simpson, cxv. 453 ; 19 C. B.N. S. 453. VII. Particular statutes. Sect. 56, c. 1, 1 & 2 Wm. 4, imposes duty of stopping at the Royal Pier, . Southampton, at request of five passengers, on steam vessels plying between river Itchen at Southampton and Isle of Wight. Farrand v. Cooper, civ. 284 ; 12 C. B. N. S. 284. 398 SHIPPING, VII., VIII. (a), IX. (a), (6). Sections relating to discipline in 17 & 18 Vict. c. 104 (Merchant Shipping Act), apply only to British ships. Leary v. Lloyd, cvii. 178 ; 3 E. & E. 178. Harboring a deserter, under s. 67, applies only to such a ship. Ibid. Proof of registration must be given, under s. 107. Ibid. Evidence of captain of vessel, before receiver of wrecks, under 17 & 18 Vict. c. 104, ss. 448, 449, not admissible in action for collision to prove that collision was on starboard bow. Nothard v. Pepper, cxii. 39 ; 17 C. B. N. S. 39. Under Merchant Shipping Act, 25 & 26 Vict. c. 63, s. 67, upon owner of goods giving notice of his readiness to receive them, ship-owners were bound to give twenty-four hours' notice of delivery. Berresford v. Montgomerie, cxii. 379 a : 17 0. B. N. S. 379 a. But owner of goods, to entitle himself to this notice, must have been in a con- dition actually to accept delivery. Ibid. And where shipowner is not ready to make delivery at time of offer to accept it he is not excused from duty of giving notice because owner of goods does not ask for correct information as to time of delivery. Ibid. Duties of owner of goods and. shipowner under the act. Ibid. VIII. Or THE MASTER. Rule that wages depends on earning freight does not apply to master. Hawkins ». Twizell, lxxxv. 883 ; 5 E. & B. 883. Authority given by master to charterer to sell damaged cargo, when acted upon and expenses incurred, not revocable by owners. Blasco v. Fletcher, cviii. 147 ; 14 C. B. N. S. 147. Even where there is not an absolute and unconditional return of the goods. Ibid. How far duty of master to forward goods after abandonment of voyage because of loss by perils insured against. Am. Ed. note. De Cuadra v. Swann, cxi. 772 ; 16 C. B. N. S. 772. Where powder, shipped for a voyage, is stored on a fit vessel in a harbor dur- ing the voyage, and transferred by bailee to another vessel not fit, without con- sent of captain, and lost, bailee is liable. Bonneberg v. Falkland Islands Co., cxii. 1; 17 C. B. N.S.I. Defendant is liable either as trespasser, or, for want of due care, as bailee. Ibid. Duty of the master to pay harbor dues and have the vessel released. Motler v. Jenks, cxv. 332 ; 19 C. B. N. S. 332. Dubitatur, that a master may be licensed to pilot his own ship. Hossack ». Gray, cxviii. 598 ; 6 B. & S. 598. (a) Liability. Having waited a reasonable time at the designated port, without receiving his orders, he is not liable for loss occasioned by his going to another port named in the charter-party. Sieveking v. Maass, lxxxviii. 670 ; 6 E. & B. 670. Not liable for the negligence of the stevedore, though the charter-party provide that the stevedore is to be paid by and to be under the orders of the captain. Blaikie v. Stembridge, xcv. 894 ; 6 C. B. N. S. 894. IX. Consignor and consignee. (a) Actions by. When part of freight, from which lien is gone, is paid under protest, owing to duress of goods, it can be recovered back by consignee. Tamvaco v. Simpson, cxv. 453 ; 19 C. B. N. S. 453. (b) Actions against. Shipper liable to owner, who is without notice, for damage done by dangerous goods insufficiently packed. Brass v. Maitland, lxxxviii. 470 ; 6 E. & B. 470. Though packing done by a third party and neither of them knew its insuf- ficiency. Ibid. Aliter, if the master had the means of knowing and ought to have known their condition. Ibid. SHIPPING, IX. (b), X. (a), (6), XL 399 Consignor can be sued for breach of contract by master, where there is clause in bill of lading, that vessel shall take her turn in unloading. Cawthron v. Trickett, cix. 754 ; 15 C. B. N. S. 754. Consignee is liable for freight for goods delivered, and cannot deduct value of goods mentioned in bill of lading, but not put on board. Mever v. Dresser, cxi. 646 ; 16 C. B. N. S. 646. _ II seems, that a usage giving right to make such deduction -would not be admis- sible. Ibid. Where consignee is liable for harbor dues for goods on a vessel and they are paid by master after detention of nine days, damages for detention cannot be recovered from the consignee by the owner of the vessel. Moller v. Jecks, cxv. 332; 19 C. B. N. S. 332. X. Transfer op the cargo. On a contract to supply a cargo afloat, for which buyer to pay cash in ex- change for the " shipping documents," a policy of insurance, which substan- tially covers the value of the cargo, but not the freight, is sufficient. Tamvaco v. Lucas, ci. 185 ; 1 B. & S. 185. (a) By the master. When sale of cargo by charterer with authority of master justifiable. Blasco v. Fletcher, cviii. 147 ; 14 C. B. N. S. 147. It must have been the reasonable course to take, having regard to the interests of all parties. Ibid. (6) Under bill of lading and its effect. Where assignee of bill of lading demands cargo of master who agrees to deliver, it is no evidence of contract to receive in a reasonable time. Moeller v. Young, lxxxv. 755; 5 E. & B. 755. Reversing Q. B., Ibid. 7. Where the plaintiffs bought goods on their own credit for A. and at his re- quest delivered them on board vessel, taking the mate's receipt, and A., without redeeming the receipt or producing it to master, procured from him bills of lading which he transferred to a bona fide endorsee, to whom master, against order of plaintiffs, delivered the goods, the master and owner were held liable. Schuster v. McKellar, xc. 704 ; 7 E. & B. 704. Where goods are to be delivered upon payment in cash against bill of lading in hands of vendor's agent, condition must be performed and payment made before title will pass. Moakes v. Nicolson, cxv. 290; 19 C. B. N. S. 290. XI. General average. Where the goods on a stranded ship were rescued, and warehoused by the master until the ship was released and repaired, and were then taken on board, the freight, cargo and vessel were held liable to contribute to expense of getting ship off. Moran ». Jones, xc. 523 ; 7 E. & B. 523. Warranty free from particular average includes extra freight paid for reship- ping. G-. I. P. Railway Co. v. Saunders, ci. 41 ; 1 B. & S. 41. One who, without a contract, raises the ore of another sunk in a navigable river, has no claim to general average. Castellain v. Thompson, cvi. 105 ; 13 C.B.'N. S.105. S * ' Where goods of same species, shipped in separate packages, are warranted free from average, unless general, or the ship be stranded, and some of the pack- ages are entirely lost, insurers are not responsible. Ralli v. Janson, lxxxviii. 422; 6E. &B. 422. Where a ship was stranded, and the cargo housed, the expenses of getting her off and taking her to port for repairs, not the subject of general average. Job o. Langton, lxxxviii. 779 ; 6 E. & B. 779. On an insurance of things differing in kind and use, " free from all average," there may be a recovery for some which are totally lost, though others saved. Duff v. Mackenzie, xci. 16 ; 3 C. B. N. S. 16. And where the insurance is on goods " against total loss only." Wilkinson v. Hyde. Ibid. 31. Where shipper guilty of misconduct and negligence, he cannot recover for 400 SHIPPING, XI., XII., XIII. (a), (b), XIV. average loss against owner of cargo. Schloss v. Heriot, cviii. 59 ; 14 C. B. N. S. 59. General average must be contributed to by the persons interested in the ship, in the freight and in the cargo. Frayes v. Worms, cxv. 159 ; 19 0. B. N. S. 159. Charterer paying in advance, freight is liable to general average. Ibid. Deck cargo (timber), lawfully laden by charter-party, endangering safety of vessel, is the subject of general average against shipowner. Johnson v. Chap- man, cxv. 563 ; i9 C. B. N. S. 563. Subject of, considered, Am. Ed. note. Ibid. XII. Demurrage. Consignee receiving goods, not liable for demurrage incurred at port of load- ing, though he was to pay for them as per charter-party, which stipulated for a lien for demurrage. Smith v. Sieveking, Ixxxv. 589 ; 5 B. & B. 589. Where ship was to deliver cargo in a tidal harbor, no' demurrage accrued while waiting for tides in order to reach an ordinary landing-place selected by con- signees. Parker v. Winlow, xc. 942 ; 7 E. & B. 942. Where, by bill of lading, the cargo was deliverable to consignees " paying freight," and on the margin was a memorandum that eight days were allowed for unloading, the consignees were not liable for demurrage. Chappel v. Comfort, c. 802; IOC. B. N. S. 802. Where action will lie for,under contract, even though there is partnership in the freight. Blech v. Balleras, cvii. 203 ; 3 E. & E. 203. Clause in contract held to be collateral and independent. Ibid. In count for demurrage, damages for detention of vessel by reason of non- payment of harbor dues cannot be recovered. Moller v. Jecks, cxv. 332 ; 19 C. B. N. S. 332. XIII. Op the voyage. Where ship had left dock, and lay at anchor in the roads, three miles away, without mate or master, bill of lading unsigned, held that she had not sailed. Thompson v. Gillespy, Ixxxv. 209; 5 E. & B. 209. Loaded vessel- which, after leaving harbor and crossing bar, waited for cap- tain, who returned for his papers, has not sailed. Hudson v. Bilton, lxxxviii. 565 ; 6 E. & B. 565. Two days' delay to proceed, under charter-party, in time of war, with objec- tions because of danger, not necessarily a breach. Pole v. Getcovich. xcix. 430 ; 9 C. B. N. S. 430. The transit of a vessel, for the purpose of loading, to a place agreed upon by charter-party, is a part of the voyage. Barker v. McAndrew, cxiv. 759 ; 18 C. B. N. S. 759. (a) Abandonment of. Underwriters are not responsible for a total loss of freight by perils of sea, when master, acting prudently, sails away without shipping cargo, when he could have repaired in an adjacent port, and returned and taken his cargo. Philpott v. Swann, ciii. 270; 11 C. B. N. S. 270. If the loss is so great that the costs of repairing would exceed value of vessel when repaired, as well as value of freight, an abandonment is proper. DeCuadra v. Swann, cxi. 772 ; 16 C. B. N. S. 772. (6) Illegal voyage. Where ship sails without certificate required by 16 & 17 Vict. c. 107, ss. 170, 171, 172, the whole voyage is illegal. Cunard v. Hyde, cv. 1 ; 2 E. & E. 1. XIV. Navigation op vessel. Plaintiff cannot recover where collision caused by absence of light on his collier, though defendant's steamer running too fast, and jury find, with " pre- ponderance of blame." Dowell v. Steam Nav. Co., Ixxxv. 195 ; 5 E. & B. 195. True at common law, and 14 & 1 5 Vict. c. 79, removes all doubt. Ibid. Plaintiff has no remedy, if his negligence, in any degree, contributed to the accident. Ibid. SHIPPING, XIV.— XVII. 401 Where bowsprit of defendant's vessel, by falling of the tide, broke a mast of plaintiff's vessel, projecting beyond the wharf over the waterway, no recovery. Dalton v. Denton, lxxxvii. 672 ; 1 C. B. N. S. 672. Semble, that owner of transport, hired by government in a warlike expedition, not liable for damage to another transport, caused by obedience to orders of those in command. Hodgkinson v. Fernie, lxxxix. 415 ; 2C. B. N. S. 415. Aliter, if the order permitted discretion on the part of master, in the emer- gency which arose, and he was negligent. Ibid. If there is negligence on the part of plaintiff which does not directly con- tribute to the accident, he may recover. Tuff v. Wurman, lxxxix. 740 ; 2 C. B. N. S. 740. Affirmed in Exchequer Chamber, xciv. 573 ; 5 C. B. N. S. 573. One vessel in tow, without active default, injuring another in same tow, not liable to latter. Harris v. Anderson, cviii. 499 ; 14 C. B. N. S. 499. Duty of vessels in reference to submarine telegraph wires. Telegraph Co. v. Dickson, cix. 759; 15 C. B. N. S. 759. In suit for damages for collision, on agreement to pay loss to ship, when held to be loss to owners of ship. Heard v. Holman, cxv. 1 ; 19 C. B. N. S. 1. The charter of the Trinity House of Leith, 37 Geo. 3, 1797, and 1 Geo. 4, c. 37, s. 32, confirming it, limit its authority to license pilots to the coast of Scot- land. Hossack v. Gray, cxviii. 598 ; 6 B. & S. 598. XV. Court of admiralty. A suit against a ship in a foreign court, though in its inception a proceeding in personam against the captain, is in rem, and the judgment, though turning on a question of English law and erroneous, is conclusive. Imrie v. Castrique, xcviii. 405; 8 C.B.N. S. 405. Reversing C. P., Ibid. 1. XVI. Seamen. Articles with seamen not invalid, under 17 & 18 Vict. c. 104, because provid- ing for an alternative voyage. Frazer v. Hatton, lxxxix. 512 ; 2 0. B. N. S. 512. Not because they provided for transfer of crew to another vessel. Ibid. This provision did not require transfer of crew collectively. Ibid. Owners not liable to penalty for not paying what was due seaman, when he refused to give a discharge, under s. 175, unless larger sum paid. Ibid. Articles not void because not executed before consular agent. Ibid. Where articles ^provided for transfer of crew to another vessel, and master afterward agreed to pay a larger sum to steward, upon his transfer, agreement is without consideration. Ibid. Contract with seamen to increase their wages for the rest of the voyage, made when the vessel was at a port, unseaworthy for want of hands, held good. Hart- ley v. Ponsonby, xc. 872 ; 7 E. B. 872. If, after the sale of a ship during her trip, a seaman, without a new contract, serves for a time under the agent of the new owner, but leaves before the termi- nation of the voyage, he may recover quantum meruit. Robins v. Power, xciii. 778 ; 4 C. B. N. S. 778. In a suit on an advance note made by the master, promising to pay ten days after sailing, to any one who should advance II. 61., provided H. sailed, held that an advance of 31. 5s. cash, and 21. 15s. worth of clothing, fulfilled the condition, though if all had been in cash, seven and a half per cent, would have been charged by the holder. M'Kune v. Joynson, xciv. 218 ; 5 C. B. N. S. 218. XVII. Other matters. Where defendant told plaintiff, master of vessel, suing on charter-party, that there was no cargo for him, and that he had better go away, but he remained, insisting on cargo, and afterward, within time for loading, war occurred, rescind- ing contract; held, he could not recover, not having acted on the renunciation of defendant. Avery v. Bowden, lxxxv. 714 ; 5 E. & B. 714. Affirmed in Exchequer Chamber, lxxxviii. 953 ; 6 E. & B. 953. ^ Under 17 & IS Vict. c. 104, s. 352, a pilot is compelled to surrender his license Vol. III.— 26 402 SHIPPING, XVII. SLANDEE, I.— IV. (a). to the pilotage authority, when required, though it act arbitrarily. Henry v. Newcastle Trinity House Board, xcii. 723 ; 8 E. & B. 723. Master of a ship not liable to penalty, under sect. 50 of 17 & 18 Vict. c. 104, for refusing to deliver certificate of registry to the owner, on an arbitrary de-. mand. Arkle v. Henzoll, xcii. 828 ; 8 E. & B. 828. An agent at a foreign port, to whom a ship is sent, under a charter-party, for loading, has no implied authority to substitute a distant port or a different quality of cargo. Sickens v. Irving, xcvii. 165 ; 7 0. B. N. S. 165. Under Merchant Shipping Act, 17 & 18 Vict. c. 104, ss. 23, 28, commissioners of customs cannot make rules altering the allowance for space of the propelling power. Steam Packet Co. v. Thompson, cxv. 553 ; 19 C. B. N. S. 553. Where the contract of affreightment does not provide otherwise, the law of the ship should govern between the parties in respect to sea damage and its inci- dents. Lloyd v. Guibert, cxviii. 100 ; 6 B. & S. 100. SLANDER. I. Privileged communications. (&) Malice. II. Parties to the action. (c) Special damage. III. Pleadings. (d) Damages. IV. Proceedings. («) Costs. (a) Evidence. I. Privileged communications. Words used in judicial proceeding. Revis v. Smith, lxxxvi. 126 ; 18 C.'B. 126. Where defendant dismissed two servants and told each separately that the reason was that both had robbed him. Manby v. Witt, lxxxvi. 544 ; 18 C. B. 544. Words spoken bona fide to plaintiffs employer, a customer of defendant, who had sent plaintiff to defendant's shop, charging theft there, are privileged. Amann v. Damm, xoviii. 597 ; 8 C. B. N. S. 597. Inquiries from third person in reference to an expected suit for slander are privileged. Force v. Warren, cix. 806 ; 15 C. B. N. S. 806. But not when the communications are voluntary. Ibid. What are privileged communications. Am. Ed. note. Ibid. No action will lie against a coroner holding an inquest, for words falsely and maliciously spoken. Thomas v. Churton, ex. 475 ; 2 B. & S. 475. Qucere, whether it would if there were want of reasonable and probable cause. Ibid. Although the giving of character of servant is privileged, the plaintiff may by evidence of actual or express malice recover. Jackson v. Hopperton, cxi. 829 ; 16 C. B. N. S. 829. The question is then one for the jury. Ibid. II. Parties to the action. In an action for calling plaintiff's wife a bawd and her house a bawdy house, it is unnecessary to join the wife. Huckle v. Reynolds, xcvii. 114 ; 7 C. B. N. S. 114. III. Pleadings. Declaration should allege that slanderous words in a foreign language were spoken in the presence of persons who understood it. Amann v. Damm, xcviii. 597 ; 8 C. B. N. S. 597. IV. Proceedings. (a) Evidence. What interrogatories of plaintiff to defendant refused in an action of slander Stern v. Sevastopulo, cviii. 737 ; 14 C. B. N. S. 737. Allowance of interrogatories within the discretion of the court. Ibid. SLANDER, IV. (6), (c), (d), («). SLAVES. STAMPS, I. 403 (6) Malice. If plaintiff prove that the words were untrue, and that the defendant saw the transaction, the communication being privileged, defendant must disprove malice. Hartwell v. Vesey, xcix. 882 ; 9 C. B. N. S. 882. Where there is evidence of actual or express malice, it should be left to the jury, even though the communication be otherwise privileged. Jackson v. Hopperton, cxi. 829; 16 C. B. N. S. 829. (c) Special damage. In an action for calling plaintiff's wife a bawd and her house a bawdy house it is unnecessary to prove special damage. Huckle v. Reynolds, xcvii. 114; 7 That the defendant spoke the words charged and that the customer did not deal with plaintiff afterward is evidence of special damage. Bateman v. Lyall, xcvii. 638 ; 7 C. B. N. S. 638. Loss of membership in a society of Calvinistic Methodists is not special damage. Roberts ». Roberts, cxvii. 384 ; 5 B. & S. 384. (d) Damages. 750Z. for slandering a clergyman not excessive. Highmore v. Earl of Har- rington, xci. 142 ; 3 C. B. N. S. 142. Where there is evidence that plaintiff lost a place worth 501. a year with her board, 601. damages not excessive. Jackson v. Hopperton, cxi. 829 ; 16 C. B. N. S. 829. (e) Costs. 21 Jac. 1, c. 16,' providing that if plaintiff recover less than 40s., he shall only have so much costs as the damages amount to, is not repealed by 3 & 4 Vict. c. 24. Evans v, Rees, xcix. 391 ; 9 C. B. N. S. 391. SLAVES. A sale of slaves in a country where such a contract is lawful by a British subject who purchased them after 5 Geo. 4, c. 113, and before 6 & 7 Vict. c. 98, may be enforced. Santos v. Illidge, xcviii. 861 ; 8 C. B. N. S. 861. Reversing Common Pleas, xcv. 851 ; 6 C. B. N. S. 851. STAMPS. I. Agreement requiring a Stamp. III. Parol evidence of unstamped agree- II. When unstamped instrument may ment. be read. IV. Other matters. I. Agreement requiring a Stamp. Transfer of shares in cost book mine does not require stamp. Walker v. Bart- lett, lxxxvi. 845 ; 18 C. B. 845. On payment of the penalty, under 19 & 20 Vict. c. 81, the articles of clerkship with an attorney may be stamped at the expiration of the term. Ex parte Her- bert, ci. 825 ; 1 B. & S. 825. A post-dated check, drawn to order, is within the statutes relating to bills of exchange and properly stamped as such. Whistler v. Forster, cviii. 248 ; 14 C. B. N. S. 248. Want of stamp on articles of attorney's clerk sufficient to prevent same from being allowed nunc pro tunc. Ex parte Jones, cviii. 301 ; 14 C. B. N. S. 301. 404 STAMPS, I.— IV. The ordinary deed stamp sufficient for a release of a deceased partner's inter- est to the firm by the executors. Steer v. Crowley, cviii. 337 ; 14 C. B. N. S. 337. Mere memorandum of agreement does not require a stamp. Cory v. Davis, cviii. 370 ; 14 C. B.N. S. 370. Bill of sale not duly stamped at time of filing copy, under 24 & 25 Vict. c. 91, s. 34, does not prevent original from being given in evidence, if the deficiency of duty and penalty be paid. Bellamy v. Saull, cxvi. 265 ; 4 B. & S. 265. II. When unstamped instrument mat be read. Qucere, whether writing across a note that it is renewed by re-signing with the signature, but without a stamp, will take the note out of the Statute of Lim- itations. Holmes v. Mackrell, xci. 789 ; 3 C. B. N. S. 789. Objection must be made when the instrument is offered in evidence. Robin- son v. Vernon, xcvii. 231 ; 7 C. B. N. S. 231. Letters of administration stamped by commissioners more than six months after the discovery of the mistake, are admissible in evidence in proceeding for penalty for violation of copyright of right of representation of a drama. Lacy v. Rhys, cxvi. 873 ; 4 B. & S. 873. Counsel may call the attention of the court to the insufficiency of the stamp. Austin v. Bunyard, cxviii. 687 ; 6 B. & S. 687. Any objection founded on the stamp acts must be that the instrument does not bear the stamp which, according to its purport, it should bear. Ibid. III. Parol evidence op unstamped agreement. Where it was proved that an unstamped paper was left at the proper office with the amount of the duty, and that in the ordinary course of business it would have been sent to London, stamped and returned, but it could not be found, secondary evidence of contents admitted. Closmadeuc v. Carrel, lxxxvi. 36 ; 18 C. B. 36. IV. Other matters. Whether document properly stamped to be determined by judge at Nisi Prius. Siordet v. Kuczynski, lxxxiv. 251 ; 17 C. B. 251. Tattersall v. Fearnley, lxxxiv. 368 ; 17 C. B. 368. Under 17 & 18 Vict. c. 83, s. 5, foreign bills must be stamped or instrument is unavailable for any purpose. Pooley v. Brown, ciii. 566 ; 11 C. B. N. S. 566. Subsequent stamping of articles of clerkship, under 19 & 20 Vict. c. 81, s. 3, will enable attorney's clerk to have time computed from date of execution, where the omission to stamp at the proper time resulted from an emergency which the court could justly infer was entirely unforeseen. Ex parte Breden, civ. 352 ; 12 C. B. N. S. 352, reconsidering ex. 649 ; 2 B. & S. 649. Subsequent stamping of articles of clerkship, under 19 & 20 Vict. c. 81, s. 3, will not enable attorney's clerk, having knowledge of the fact of article not be- ing stamped, to have time computed from date of execution. Ex parte Breden, ex. 649 ; 2 B. & S. 619. A bill of sale not duly stamped at time of filing copy can be given in evidence on rectification of error and payment of penalty. Bellamy v. Saull, cxvi. 265 ; 4 B. & S. 265. Commissioners, under 19 & 20 Vict. c. 81, s. 3, are authorized upon payment of penalty to authorize articles of clerkship to be stamped after six months. Ex parte Wilson, cxvi. 889 ; 4 B. & S. 889. STATUTE, L, II. 405 STATUTE. I. Privilege conferred by Statute where (h) Authorizing tolls and du- Statute expires. ties. II. Construction of Statute generally. (i) Definitions of words. la) Retrospective. (&) Private. (6) In pari materia. (I) When Statute repeals the (c) Exceptions and provisos. law, or is only cumu- Affecting jurisdiction. lative. Affecting rights and con- (m) Computation of time men- tracts, tioned in Statute. (f) Affecting remedies. (n) Penal. (g) Grants of franchises. III. Construction of particular Statutes. IV. Proceedings under Statute. » I. Privilege conferred by Statute where Statute expires. Where statutory powers, when conferred, may be exercised without causing a nuisance, but because of changed conditions it afterwards becomes impossible, the persons exercising them may be indicted. Regina v. Bradford Nav. Co., cxviii. 631 ; 6 B. & S. 631. II. Construction of Statute generally. Provisional order of board of health extending public health act to district in which is a turnpike, incorporating s. 50 of Towns' Improvement Clauses Act, which forbids trustees of turnpikes from levying toll, and confirmed by act so far as authorized by Public Health Act, is invalid. Clayton v, Fenwick, Ixxxviii. 114; 6E. &B. 114. Where distance named, it means a straight line on a horizontal plane. Jewel e. Stead, Ixxxviii. 350 ; 6 E. & B. 350. Payment of voter's travelling expenses not within Corrupt Practices Preven- tion Act, 17 & 18 Vict. c. 102, unless it be on condition that he vote a certain way. Cooper v. Slade, Ixxxviii. 447 ; 6 E. & B. 447. Where an act authorized a major part of the vestry to remove collectors of poor rate it was held to require a majority of those present and not of those " voting. Regina v. Overseers of Christ Church, xc. 409 ; 7 E. & B. 409. Words construed according to their natural grammatical meaning, though the effect seem inequitable. Guardians of Birmingham v. Beaumont, xcii. 870 ; 8 E. & B. 870. Where powers conferred upon officerof court by statute, generally subject of appeal. Metropolitan Railway Co. v. Turnham, cviii. 212 ; 14 C. B. N. S. 212. Disqualifying statutes construed strictly. Turner e. Reynall, cviii. 328 ; 14 C. B. N. S. 328. When later act appoints new officers with powers given by prior act, the penalty for obstructing them cannot be extended to later act by implication. Turnidge v. Shaw, cvii. 588 ; 3 E. & E. 588. How far statutes apparently conflicting can be reconciled. Savage v. Brook, cix. 264; 15 C. B. N. 3. 264. Every presumption is against exemption from a common burthen. Hackett v. Long Bennington, cxi. 38 ; 16 C. B. N. S. 38. General words in statute restrained by subsequent section. Brownlow v. Board of Works, cxi. 546 ; 16 C. B. N. S. 546. General words restrained by subsequent proviso so as not to destroy vested rights. Burgess v. Peacock, cxi. 624 ; 16 C. B. N. S. 624. Power of local board to enact by-laws, under Public Health Act, for the clos- ing of buildings, &c., limited by language of proviso. Ibid. Powers of general board of health to make an order for recovery of expenses of sewering, Ex., the same to be final and conclusive, transferred by subsequent act to secretary of state, will make his finding conclusive. Wallington v. Willes, cxi. 797 ; 16 C. B. N. S. 797. It seems that interest would not be allowed until the demand of proper amount due. Ibid. 406 STATUTE, II. (a), (6). A law, altering the rules of evidence and making statutory evidence admissible, must be construed strictly. Nothard v. Pepper, cxii. 39 ; 17 C. B. N. S. 39. General intent of legislature considered in construction. Taylor v. Humphries, cxii. 539 ; 17 G. B. N. S. 539. In construction of statute, as in every written instrument, surrounding cir- cumstances are to be considered. Vestry of Chelsea v. King, cxii. 625 ; 17 C. B. N. S. 625. (d) Retrospective. Section 14 of Mercantile Law Amendment Act 1856, is not retrospective. Jackson v. Woolley, xcii. 778 ; 8 E. & B. 778. 21 & 22 Vict. c. 98, s. 62, is prospective only. Eddleston v. Francis, xcvii. 568 ; 7 C. B. N. S. 568. Under s. 68 of 8 & 9 Vict. c. 20, railway companies are bound to maintain fences strong enough to keep sheep and cattle from straying out of adjoining lands. Bessant v. G. W. Railway Co., xcviii. 368 ; 8 C. B. N. S. 368. Sect. 6 of 22 & 23 Vict. c. 49, authorizes the guardians to include in a contri- bution order a balance due the preceding half year. London Union v. Acocks, xcviii. 760 ; 8 C. B. N. S. 760. Semblc, that s. 21 of 20 & 21 Vict. c. 85, is retrospective. Midland Railway Co. v. Pye, c. 179 ; 10 C. B. N. S. 179. But a protection order obtained under it, pending an action, will not authorize the action if not maintainable at its commencement. Ibid. The Medical Act, 21 & 22 Vict. c. 90, is not retrospective. "Wright v. Green- royd, ci. 758 ; 1 B. & S. 758. The act of 8 Vict. c. 8, providing in general terms what shall be done to ascer- tain the value and claims of insurance policies and policy holders in the company therein named, applies to policies then existing and those subsequently issued. Drake v. Amicable Society, ci. 987 ; 1 B. & S. 987. 20 Vict. c. 19, providing for places extra-parochial, is not retrospective. Regina ». St. Sepulchre, cii. S13 ; 1 E. & E. 813. Sect. 166 of 24 & 25 Vict, c 134, is not retrospective, and a bill given in viola- tion of s. 202 of 12 & 13 Vict. c. 106, is void in the hands of a bona fide holder for value, though when it was endorsed and came due that section had been repealed. Reed v. Wiggins, cvi. 220 ; 13 C. B. N. S. 220. Fixing time necessary to create settlement, and effect of residence in a union, retrospective, under 24 & 25 Vict. c. 55, s. 1. Salford v. Manchester, cxiii. 599 ; 3 B. & S. 599. Fixing time of residence in union to create settlement in 24 & 25 Vict. c. 55, s. 1, retrospective. Preston v. Blackburn, cxiii. 793 ; 3 B. & S. 793. It is a general rule especially applicable to private legislation not to construe an enactment retrospectively to defeat vested interests unless the intention be clearly expressed. Moody v. Corbett, cxvii. 859 ; 5 B. & S. 859. (6) In pari materia. Semble, that the construction placed upon the words of a statute by a repeal- ing statute should apply to similar words in a third statute in pari materia. Goldsmid v. Hampton, xciv. 94 ; 5 C. B. N. S. 94. Reference to other statutes in pari materia to ascertain the meaning of words. Regina v. Burial Board, ci. 679 ; 1 B. & S. 679. A special act, 8 & 9 Vict. c. 155, which enacts that so much of the Lands Clauses Consolidation Act as relates to the mode of crossing roads, &c, shall be incorporated, incorporates sects. 65 and 145 of that act. Railway Co. v. Tucker, cvi. 207 ; 13 C. B. N. S. 207. Canal act, providing for land damages as to effect of finding of jury, construed as in pari materia with Lands Clauses Consolidation Act. Barber v. Nottingham Canal Co., cix. 726 ; 15 C. B. N. S. 726. The fact that certain acta requiring warehouses acquired in future to be rated, does not by implication exempt property otherwise liable by statute. Mersey Docks v. Cameron, cxiv. 867 ; 18 C. B. N. S. 867. 19 & 20 Vict. c. 47, makes a company registered under 7 & 8 Viet. c. 110, lim- ited for general purposes, but unlimited quoad the liability of shareholders for existing debts. "Gold Mining Co. v. Sutton, cxviii. 326 ; 6 B. & S. 326. STATUTE, II. (b), (c), (d). 407 An order of the Quarter Sessions, under 4 Geo. 4, c. 64, will excuse the gov- ernor of a 1 by justices, C'oldbath Fi (c) Exceptions and provisos. Building used as a militia depot and for storing arms, &c, within the exemp- tion in sect. 6 of the Metropolitan Building Act, 18 & 19 Vict. c. 122. Regina v. Jay, xcii. 469 ; 8 E. & B. 469. Where the arches used by a railway are walled up and the enclosed space rented as a stable, the structure is within the exception in sect. 6 of 18 & 19 Vict. c. 122. In re Badger, xcii. 728 ; 8 E. & B. 728. The proviso in s. 88 of 11 & 12 Vict. c. 63, does not extend to property ex- empted by a local statute with respect to locality, but only with respect to kind, and 5 Geo. 4, c. 22, does not exempt as to kind. Luscombe v. Plymouth, xcvi. 691; E., B. &E. 691. When proviso in 3 Geo. 4, c. 126, s. 55, required sureties on lease of tolls, waiver of that provision by trustees does not invalidate lease. Markham v. Stanford, cviii. 376 ; 14 C. B. N. S. 376. Proviso in act to be read and construed as subordinate to main clauses. Nav. Co. v. Dudley, cvii. 409 ; 3 E. & E. 409. General enactment limited by terms of proviso. Harrison v. L. & B. Rail- way Co., ex. 122 ; 2 B. & S. 122. The provisions in the exception to 19 & 20 Vict. c. 79, s. 47, are co-extensive with the protection granted in s. 47, and extend to the whole united kingdom. Dutton v. Hally, ex. 748 ; 2 B. & S. 748. Exception of refreshment to travellers in 11 & 12 Vict. c. 49, s. 1, throws bur- den of proving infringement of prohibition in act upon informer. Taylor v. Humphries, cxii. 539 ; 17 C. B. N. S. 539. (d) Affecting jurismction. Where magistrate held that he was bound by a bad by-law because it had been allowed under Public Health Act, 11 & 12 Vict. c. 63, and refused to hear objec- tion, certiorari granted. Regina v. Wood, Ixxxv. 49 ; 5 E. & B. 49. Semble, that had he decided by-law to be good, it would have been granted. Ibid. Surveyor bona fide claiming and receiving fee to which he is found not to be entitled, cannot be discharged from office, under 7 & 8 Vict. c. 84, s. 79. Regina v. Badger, lxxxviii. 137 ; 6 E. & B. 137. Under Public Health Act, 11 & 12 Vict. c. 63, it rests with the local board to determine what is reasonable remuneration for conducting its election. Ex parte Metcalfe, lxxxviii. 287 ; 6 E. & B. 287. 13 & 14 Vict. c. 18, does not affect the jurisdiction given by 43 Geo. 3, c. 53, as to service. Sheehy v. Life Assurance Co., lxxxix. 211 ; 2 C. B. N. S. 211. Qucere, whether the 9th section of the former act authorizes substituted service, under order of Irish court, where joint stock company has an agent in Dublin. Ibid. Affirmed in Exchequer Chamber, xci. 597 ; 3 C. B. N. S. 597. Arrears of highway rate, laid by highway board, under 5 & 6 Wm. 4, c. 50, s. 18, after expiration of that board, payable to district board, under 18 & 19 Vict. c. 120. Regina v. Ingham, xc. 5 ; 7 E. & B. 5; 5 & 6 Wm. 4, c. 76, does not give compensation to one whose office has been cur- tailed, not abolished. Regina v. Council of Brighton, xc. 249 ; 7 E. & B. 249. Borough lands exempt, by local act, from watch rate, previous to 5 & 6 Wm. 4, c. 76, may, within two hundred yards of a street, be rated under that act. Hallett o. Overseers of Brighton, xc. 342; 7 E. & B. 342. Under 18 & 19 Vict. c. 120, the Metropolitan Board of Works have jurisdic- tion to determine whether one claiming compensation is an officer. Regina v. St. Olave's District Board, xcii. 529 ; 8 E. & B. 529. 7 & 8 Vict. c. 71, s. 12, with reference to the city and liberty of Westminster, provides for compensation for existing officers only. Nicholson v. Ellis, xcvi. 267-; E., B. & E. 267. 408 STATUTE, II. (d). Eight of commissioner, under 14 & 15 "Viet. c. 43, to ascertain extent of com- mon. In re Hainault Forest Act, xeix. 648 ; 9 C. B. N. S. 648. Under 18 & 19 Vict. c. 120, the vestry may convert, an insufficient privy into a watercloset. Vestry of St. Lukes v. Lewis, ci. 865 ; 1 B. & S. 865. The assessment, under sect. 16 of 18 & 19 Vict. c. 121, may be spread over a term of years, provided the levy in each year be not more than Is. in the pound on the rateable value as assessed to the highway rate. Regina ». Middleton, cii. 98 ; 1 E. & E. 98. To be eligible as a commissioner, under 1 & 2 Vict. c. 33, a party's name must be known to the parish officers at the time of making the rate, and be inserted in it. Regina v. Eddowes, cii. 330; 1 E. & E. 330. Under 15 & 16 Vict. s. 118, there is not concurrent jurisdiction in the superior court, where plaintiff has three residences, one of which is within twenty miles of defendant. Bailey 'v. Bryant, cii. 340 ; 1 E. & E. 340. Under the local acts, 2 Geo. 2, c. 10, s. 1 9, the vestry had power to make poor rates. Vaughan v. Imray, cii. 633 ; 1 E. & E. 633. By 18 & 19 Vict. c. 120, and 19 & 20 Vict. c. 112, this power was transferred to the new vestry created by the former act. Ibid. 5 & 6 Vict. c. 76, s. 75, having transferred the powers of the commissioners, under a local act, 53 Geo. 3, c. 73, to the town council, the mode of exercising them indicated by the first named statute should be pursued. Kidderminster v. Court, cii. 770 ; 1 E. & E. 770. The decision of the secretary of state on appeal as to the validity of a vote, under 21 & 22 Vict. c. 98, s. 18, is conclusive. Ex parte Bird, cii. 931 ; 1 E. & E. 931. 1 & 2 Vict. c. 110, gives Insolvent Debtors' Court a judicial discretion in making an order vesting surplus of insolvent's estate. Ex parte Cook, in re Dyson, cv. 586 ; 2 E. & E. 586. Under 7 & 8 Vict. c. 101, magistrate's jurisdiction is not ousted by an agree- ment of mother to release putative father from all future payment in respect of their illegitimate child, but he must consider the agreement in making an order. Follit v. Koetzow, cv. 730 ; 2 E. & E. 730. 18 & 19 Vict. c. 120, and 21 & 22 Vict. c. 104, only authorize the Metropolitan Board of Works to drive piles into the Thames with consent of the admiralty. Brownlow v. Board of Works, cvi. 768 ; 13 C. B. N. S. 768. Under 15 & 16 Vict. c. 79, s. 13, justices can inquire whether lands were subject to enclosure. Chilcote v. Youlden, cvii. 7 ; 3 E. & E. 7. Power to order inspection of real or personal property under Common Law Procedure Act 1854, s. 58, confers same powers as those previously possessed by court of equity. Bennett v. Griffiths, cvii. 467 ; 3 E. & E. 467. Concurrent jurisdiction of superior courts, under 9 & 10 Vict. c. 95. Pigrim v. Knatchbull, cxiv. 798; 18 C. B. N. S. 798. 18 & 19 Vict. c. 129, does not authorize a district board of works to pollute, by sewage, water flowing through the lands of another. Cator v. Lewisham, cxvii. 115; 5B. &S. 115. The Manx Act, of the Isle of Man, providing that the House of Keys shall have the power to punish for contempt " in like manner as any court," does not confer the power upon it when acting in a legislative capacity. Ex parte Brown, cxvii. 280 ; 5 B. & S. 280. Under 18 & 19 Vict. c. 128, s. 4, providing that every vacancy in a burial board shall be filled by the vestry within one month, and in case of neglect may be filled by the board, the vestry can fill a vacancy after a month. Regina v. Southweald, cxvii. 391 ; 5 B. & S. 391. Piracy, under 6 & 7 Vict. c. 76, giving effect to the extradition treaty of August 9th 1842 with the United States, is confined to piracy within the peculiar juris- diction of the United States. In re Tivnan, cxvii. 645 ; 5 B. & S. 645. In order to issue a warrant under it, it is not necessary that there should have been an original warrant and depositions in the United States. Ibid. The warrant need not allege that testimony was taken under oath. Ibid. A natural stream, draining agricultural lands, does not, because it comes with- in the ambit of a borough, and some houses drain into its lower end, become a sewer, within 11 & 12 Vict. c. 63, s. 43. Regina v. Godmanchester, cxvii. 886 ; 5 B. & S. 886. STATUTE, II. (d), (e). 409 The acts for which extradition may be demanded, under 6 & 7 Vict. c. 56, must be such as constitute one of the offences therein named, according to the law of England, and the general law of the United States, and not according to the stat- ute of a particular state. In re Windsor, cxviii. 522 ; 6 B. & S. 522. There is no appeal, from an order of justices, for the maintenance of a pauper lunatic, made, under s. 96 of 16 & 17 Vict. c. 97. Reeina v. Northampton, cxviii 653 ; 6 B. & S. 653. r ' (e) Affecting rights and contracts. Carriers partly by land and partly by water are within protection of Carriers' Act, 7 Geo. 4 and 1 Wm. 4, c. 68. Pianciani v. L. & S. W. Railway Co.. lxxxvi. 226; 18 C. B. 226. J ' Under Copyright Act, 5 & 6 Vict. c. 45, court will not expunge or vary entry of proprietorship in registry book, unless it is clearly shflwn to be false. Ex parte Davidson, lxxxvi. 297 ; 18 C. B. 297. And they will not enlarge rule until right is ascertained refusing the entry as evidence. Ibid. Qucere, whether one who has pirated a song, which had been entered in the wrong name, is a " party aggrieved," who may ask to have the entry expurged, after it has been varied by inserting the name of the real proprietor. Ibid. Where felony is set up in answer to defence under Carriers' Act, 11 Geo. 4 and 1 Wm. 4, c. 68, question of negligence is immaterial. G. W. Railway Co. v. Rimell, lxxxvi. 575 ; 18 C. B. 575. Also reported xcv. 917 ; 6 C. B. N. S. 917. Prescription Act, 2 & 3 Wm. 4, c. 71, requires user as of right for forty con- tinuous years next before suit. Battishill v. Reed, lxxxvi. 696 ; 18 C. B. 696. Defeated by occupation of both properties by one tenant within the forty years. Ibid. The Railway & Canal Traffic Act, 17 & 18 Vict, c 31, permits the company to make a special contract, provided it be signed by the consignor and be in the opinion of the court just and reasonable. Simons v. Railway Co., lxxxvi. 805 ; 18 C. B. 805. Sergeants at mace appointed by borough under its charter are not constables, under 5 & 6 Wm. 4, c. 76, prohibited from voting by 19 & 20 Vict. c. 69, s. 9. De Boinville v. Arnold, lxxxvii. 3 ; 1 C. B. N. S. 3. An interim order, under 5 & 6 Vict. c. 116 and 7 & 8 Vict. c. 96, does not pre- vent creditor from sequestration of benefice. Parry v. Jones, lxxxvii. 339 : 1 C. B. N. S. 339. The undue and unreasonable preference provided against by the Railway Traffic Act, 17 & 18 Vict. c. 31, refers to persons and companies using the line between same point of departure and same point of arrival. In re Caterham Railway Co., lxxxvii. 410; 1 C. B. N. S. 410. To enforce running of through trains on continuous railways, under 17 & 18 Vict. c. 31, it must be shown to be reasonable and that public convenience re- quires it. In re Barret, lxxxvii. 423 ; 1 C. B. N. S. 423. Railway company enjoined, under i7 & 18 Vict. c. 31, from charging different rates to different individuals, where manifest intention was to compensate one of them for disadvantage of location. In re Ransome, lxxxvii. 437 ; 1 C. B. N. S. 437. Semble, that the companies may take into account their own interests. Ibid. Under 17 & 18 Vict. c. 31, railway company which admitted an omnibus into its yard enioined from excluding another. In re Marriott, lxxxvii. 499 ; 1 C. B.N. S. 499. Under 17 & 18 Viet. c. 31, railway company may lower its rates for full trains of through freight. In re Oxlade, lxxxvii. 454 ; 1 C. B. N. S. 454. May refuse to furnish trucks to one who declines to pay demurrage for their detention. Ibid. Cannot be compelled to carry coals to the end of their line and there shift them if they have no facilities for doing it. Ibid. Cannot lower their rates by special agreement in order to introduce coke into a particular locality. Ibid. What is undue preference and undue disadvantage. Ibid. Warrant of attorney to confess judgment given in contemplation of insolvency, 410 STATUTE, II. 0). ■within three months before imprisonment, void as against assignee, under 1 & 2 Vict. c. 110, s. 59. Hilliter v. Young, lxxxviii. 1 ; 6 B. & B. 1. Reversed in House of Lords, cvii. 736 ; 3 E. & E. 736. Under 8 & 9 Viot. c. 16, holder of shares conveyed to him as trustee for nom- inal pecuniary consideration not entitled to be registered as owner without de- livering deed of transfer. Copeland v. N. E. Railway Co., lxxxviii. 277 ; 6 E. & B. 277. " Butty colliers" who work mines by the yard, employing others and laboring themselves, are artificers within Truck Act, 1 & 2 Win. 4, c. 37. Bowers v. lovekin, lxxxviii. 584 ; 6 E. & B. 584. Court refused injunction, under 17 & 18 Vict. c. 31, no public inconvenience being shown, to prevent railway company from granting a cab exclusive liberty to ply for hire within their station. In re Beadell, lxxxix. 509 : 2 C. B. N. S. 509. 19 & 20 Vict. g. 25, makes a check, crossed at the time of presentment, pay- able only to a banker. Simmons v. Taylor, lxxxix. 528 ; 2 C. B. N. S. 528. Affirmed in Ex. Ch. xciii. 463 ; 4 C. B. N. S. 463. Application for injunction, under 17 & 18 Vict. c. 31, must come from those who use the railroad. Ex parte Painter, lxxxix. 702 ; 2 C. B. N. S. 702. Where though plaintiff himself works, the contract would be satisfied by pro- curing the labor of others, he is not an artificer within the Truck Act, 1 & 2 Win. 4, c. 37. Ingram v. Barnes, xc. 115 ; 7 E. & B. 115. 49 Geo. 3, c. 77, enclosing the locus in quo and the General Enclosure Act, 41 Geo. 3, c. 109, do not extinquish the right to take water from a well. Race v. Ward, xc. 384 ; 7 B. & B. 384. Semble, nor the means of access. Ibid. Under Railway Traffic Act, 17 & 18 Vict. c. 31, a company having a special arrangement with another company by -which they charged a certain rate for goods consigned to their agents, were enjoined from charging a higher rate for goods not so consigned. Baxendale v. North Devon Railway Co., xci. 323 ; 3 C. B. N. S. 323. Under Railway Traffic Act, 17 & 18 Vict. c. 31, a preference is not justified because the person benefited has, in consideration of it, laid connecting ways, or has threatened to make a competing railway. In re Harris, xci. 693 ; 3 C. B. N. S. 693. Under Railway Traffic Act, 17 & 18 Vict. c. 31, an injunction not granted on the ground that there was a difference in the rate of season tickets between dif- ferent points. In re Jones, xci. 718 ; 3 C. B. N. S. 718. Under 8 & 9 Vict. u. 20, s. 46, a railway company carrying a railway over a road by a bridge, must keep them both, as well as the approaches, in repair. North Staffordshire Railway Co. v. Dale, xcii. 836 ; 8 E. & B. 836. Railway Traffic Act 17 & 18 Vict. c. 31, does not prevent the recovery back of overcharges. Baxendale v. E. C. Railway Co., xciii. 63 ; 4 C. B. N. S. 63. Under 17 & 18 Vict. c. 31, a railway company may so district its route, charg- ing lower rates for full trains, that the customers of one dealer lie all in one dis- trict, but those of another, to his disadvantage, are distributed. In re Ransome & E.' C. Railway Co., xciii. 135 ; 4 C. B. N. 3. 135. May not arrange a scale of rates to diminish the natural advantages of one dealer by annihilating in expense that portion of the distance where the compe- tition arises. Ibid. May charge a less proportionate rate for a longer distance, the calculation in- cluding expense of loading. Ibid. A discrimination not affecting the complainant is no ground for an injunction. Ibid. The Companies' Clauses Consolidation Act, 8 & 9 Vict. c. 16, authorizes an action for calls against a shareholder, not against a subscriber. Wolverhampton W, Co. v. Hawkesford, xcv. 336 ; 6 C. B. N. S. 336. The conservators of the Thames, under 20 & 21 Vict. c. 147, sect. 53, have power to authorize the erection of buildings interfering with the navigation of the river. Kearns v. The Cordwainers' Co., xcv. 388 ; 6 C. B. N. S. 388. Keeping the office open until a later hour, for the reception of goods from an agent of the company, who charges for delivery, is a preference, within 17 & 18 Vict. c. 31. Garton v. Bristol & Exeter Railway Co., xcv. 639; 6 C. B. N. S. 639. ' ' STATUTE, II. (e). 411 A less rate, though for certain specified goods in large quantities, is a prima facie preference. Ibid. 17 & 18 Vict. c. 36, s. 1, requires the bill of sale and the affidavit to be filed at the same time. Grindell v. Brendon, xcv. 698 ; 6 C. B. N. S. 698. The Railway and Canal Traffic Act, 17 & 18 Vict. c. 31, does not apply to the case of two distinct navigations, one of which is stopped with a view to benefit the other. Bennett v. M. S. & L. Railway Co., xcv. 707 ; 6 C. B. N. S. 707. Contract for over 101. with the local board of health, not under seal, is void, under 11 & 12 Vict. c. 63. Frend v. Dennett, xciii. 576 ; 4 C. B. N. S. 576. Consent, under 8 & 9 Vict. c. 18, s. 124, not inferred from non-interference, both parties supposing the title to be in a third person. M. of Salisbury v. G. N. Railway Co., xciv. 174; 5 C. B. N. S. 174. Under Railway Traffic Act, 17 & 18 Vict. c. 31, it is not a legitimate ground for preference to one customer of a railway, that he engages to employ other lines of the company for traffic in distinct goods. In re Baxendale, -xciv. 309 ; 5 C. B. N. S. 309. Under 17 & 18 Vict. c. 31, a railway cannot mate a charge nominally for car- riage, but really also including collection and delivery, coupled with an offer to the public to collect and deliver free, so as to exclude competition in the latter' part of the business. In re Baxendale, xciv. 336 ; 5 C. B. N. S. 336. Not though the company make no profit on the collection and delivery. Gar- ton v. G. W. Railway Co., xciv. 669 ; 5 C. B. N. S. 669. Under 17 & 18 Vict. c. 31 , a railway may carry at a lower rate, in consideration of a guaranty of large quantities at regular periods, if the object be greater profit, though those unable to give the guaranty are excluded. In re Nichol- son, xciv. 366 ; 5 C. B. N. S. 366 ; In re Nicholson, xcvii. 754 ; 7 C. B. N. S. 754. The fee simple owner of land who grants a building lease at a peppercorn rent, is not the " owner," witnin 18 & 19 Vict. c. 122, s. 51. Evelyn v. Which- cord, xcvi. 126 ; E., B. & E. 126. Under 39 & 40 Geo. 3, c. 99, s. 34, a pawnbroker is not responsible for loss to goods from an accidental fire. Syred v. Carruthers, xcvi. 469 ; E., B. & E. 469. The secretary of a limited joint stock company, who accepts a bill drawn on the company not containing the word " limited," is personally responsible, un- der 19 & 20 Vict. c. 47. Penrose v. Martyr,_xcvi. 499 ; E., B. & E. 499. A letter signed on behalf of person delivering the goods, directing the company to forward them " not insured," is a sufficient special contract in writing, within sect. 7 of 17 & 18 Vict. c. 31. Peek ». N. Staffordshire Railway Co., xcvi. 958 ; E..B. & E. 958. Reversed in House of Lords, cxvi. 1005 ; 4 B. & S. 1005. There may be a holder of shares in a joint stock company, under 8 & 9 Vict. c. 16, s. 27, without a register of the shareholders, authenticated by the seal of the company, at an ordinary meeting. "Wolverhampton N. W. Co. v. Hawksford, xcvii. 795 ; 7 C. B. N. S. 795. Putting the name of a party with others, as shareholders, on a sheet of paper, and sealing it, no shares being numbered or appropriated, does not constitute him a shareholder. Ibid. A register made after the time prescribed in the 9th section, may be valid. Ibid. Railway company is not bound under 8 & 9 Vict. c. 20, to fence between its road and a tramway also its own. Marfell v. S. W. Railway Co., xcviii. 525 ; 8 C. B. N. S. 525. Under 17 & 18 Vict. c. 31, a railway company may make a lower rate of charge to persons sending full trains, though for its own convenience it afterward separate the cars. Ransome v. E. C. Railway Co., xcviii. 708 ; 8 C. B. N. S. 708. Under s. 138 of 11 & 12 Vict. c. 63, upon a contract for works by five members of the local board of health, covenanting for themselves, their heirs, &c, but on behalf of the board, the clerk is the proper person to bring suit. Cobham v. Holcombe, xcviii. 815 ; 8 C. B. N. S. 815. A sale of slaves in a country where such a contract is lawful by a British subject, who purchased them after 5 Geo. 4, c. 113, and before 6 & 7 Vict. c. 98, may be enforced. Santos v. Illidge, xcviii. 861 : 8 C. B. N. S. 861. Reversing Common Pleas, xcv. 841 ; 6 C. B. N. S. 841. 412 STATUTE, II. (e). Sect. 47 of 6 & 7 Vict. c. 18, requiring the registry to be delivered to the sheriff, on or before the last day of November, is directory only. Brumfitt v. Bremner, xcix. 1 ; 9 C. B. N. S. 1. One who being jointly liable with others, pays the entire judgment after arrest on a ca. sa. is entitled to an assignment of it under 19 & 20 Vict. c. 97. Batchcllor v. Lawrence, xcix. 543 ; 9 C. B. N. S. 543. The Enclosure Commissioners, under 8 & 9 Vict. c. 118, may order valuer to set out a private road over land allotted to an individual by the provisional order. Grubb v. Enclosure Commissioners, xcix. 612 ; 9 C. B. N. S. 612. Affirmed in Exchequer Chamber, cvi. 805 ; 13 C. B. N. S. 805. Right to wind for a windmill is not an easement within s. 2 of 2 & 3 Win. 4, c. 71. Webb v. Bird, c. 268 ; 10 C. B. N. S. 268. Affirmed in Exchequer Chamber, cvi. 841 ; 13 C. B. N. S. 841. 8 & 9 Vict. c. 155, s. 19, only applies to goods where the charge may be so much per ton. Garton ». Bristol & Exeter Railway Co., ci. 112; 1 B. & S. 112. 21 & 22 Vict. c. 98, s. 55, has reference to the kind of property and not the character of its occupation in the particular instance. Guardians v. Board of Health, ci. 167 ; 1 B. & S. 167. A servant is not an agent within the Factors' Acts, 6 Geo. 4, c. 94, and 5 & 6 Vict. c. 39. Lamb v. Attenborough, ci. 831 ; 1 B. & S. 831. 4 Geo. 4, c. 95, s. 78, authorizes two turnpike companies, who have a portion of road in common, to agree that one shall repair and the other pay toward ex- pense. Swinburne v. Robinson, cii. 80 ; 1 E. & E. 80. One may be an agent under the Factors' Act, 5 & 6 Vict. c. 39, though employed but the one time, and out of the ordinary course of his business. Heyman v. Flewker, cvi. 519 : 13 C. B. N. S. 519. 17 & 18 Vict. c. 104, s. 66, does not prevent the owner of a ship, who has exe- cuted an absolute transfer, from showing that it was really a mortgage. Ward v. Beck, cvi. 668 ; 13 C. B. N. S. 668 ; Powers granted by statute, relating to property, not to be exercised, unless the person, whose property is affected, has an opportunity of being heard. Cooper v. W. Board of Works, cviii. 180 ; 14 C. B. N. S. 180. Requirements of Mutiny Act, 20 Vict. c. 13, as to confinement of military pri- soners, must be strictly complied with. Re Allen, cvii. 338 ; 3 E. & E. 338. Where ground of detention cannot be justified at common law, statutable au- thority for detention must be clearly shown. Ibid. Contraction of christian name well known, good in voting paper, under 7 Wm. 4 and 1 Vict. c. 78, s. 14. Regina v. Bradley, cvii. 634 ; 3 E. & E. 634. Acts of parliament always presumed not to divest title. Vyner v. Mersey Docks, cviii. 753 ; 14 C. B. N. S. 753. What are just and reasonable conditions, limiting liability of carrier, under 17 & 18 Vict. c. 31, s. 7 (Railway Traffic Act). Aldridge v. G. W. Railway Co., cix. 582; 15 C. B. N. S. 582. Agreement of workmen for certain rate of wages, with certain fixed deduction, not within the Truck Act, 1 & 2 Wm. 4, c. 37, and, therefore, valid : Keating, Williams and Willes, JJ., dissenting. Archer v. James, ex. 61 ; 2 B. & S. 61. Construction of the act. Ibid. Power of leasing on fine destroyed by act of parliament, where the provisions are that trustees are to sell freed from all powers, and tenants in possession are to enjoy the profits of the estate in the meantime, no contrary intent appearing on face of act. Earl of Shrewsbury v. Keightley, cxv. 606; 19 C. B. N. S. 606; Earl of Shrewsbury v. Harbord, cxv. 643 ; 19 C. B. N. S. 643. Private act making resettlement of estate construed with reference to the power of tenant in tail leasing on fine. Ibid. Power of leasing, destroyed by private act, construed as granted by subsequent act, the exercise of such power being to the interest of succeeding tenants in tail. Earl of Shrewsbury v. Beazley, cxv. 651 ; 19 C. B. N. S. 651; see Earl of Shrewsbury v. Keightley, cxv. 606 ; 19 C. B. N. S. 606. A pauper residing a few months in a parish, in the same union with the parish of settlement, is removable to the latter, notwithstanding, 24 & 25 Vict. c. 55, s. 1. Regina v. Great Salkeld, cxvii. 377 ; 5 B. & S. 377. STATUTE, II. (/). 413 (/) Affecting remedies. Under 11 Geo. 2, c. 19, tenant is only entitled to recover for actual damage, ■where distress irregular. Rodgers v. Parker, lxxxvi. 112 ; 18 C. B. 112. Where amount recovered in suit, which could have been brought in county court, is reduced below 201. by set off, no costs under 13 & 14 Vict. c. 61. Ash- croft v. Foulkes, lxxxvi; 261 ; 18 C. B. 261. Where set-off reduces claim below 201. in suit which should have been brought in lower court, court may nevertheless order costs under 15 & 16 Vict. c. 54. Burnley v. Irwin, lxxxvi. 312 ; 18 C. B. 312. Plaintiff bringing suit in superior court where county court has jurisdiction over some of the items, not entitled to costs, under 9 & 10 Vict. c. 95. Bonsey v. Wordsworth, lxxxvi. 325; 18 C. B. 325. Sect. 10 of 7 & 8 Vict. c. Ill, does not repeal sect. 182 of 12 & 13 Vict. c. 106. Morisse v. Royal British Bank, lxxxvii. 67 ; 1 C. B. N. S. 67. Under 7 & 8 Vict. c. 113, a notice in the alternative, of intention to apply to the court or a judge, is good. Bendy v. Harding, lxxxvii. 551 ; 1 C. B. N. S. 551. The 16th section of 7 & 8 Vict. c. 113, prescribing form of memorial, is director^ only. Dossett v. Harding, lxxxvii. 524 ; 1 C. "B.N. S. 524 ; Powis v. Harding, lxxxvii. 533 ; 1 C. B. N. S. 533. Qucere, whether s. 21 makes it conclusive evidence against shareholders. Ibid. Notice which includes two persons, though the application confined to one, is good. Ibid. One who has not signed deed of settlement or deed referring to it not a share- holder within 7 & 8 Vict. c. 110. Bailey v. Life Association, lxxxvii. 557 ; 1 C. B. N. S. 557. Under 7 & 8 Vict. c. 113, notice to John Marshall, which should have been to John S. Marshall, accompanied by oath of identity, is sufficient. Thompson v. Harding, lxxxvii. 555 ; 1 C B. N. S. 555. Under 12 & 13 Vict. c. 92, there is no appeal except where the penalty adjudged exceeds 21. exclusive of costs. Regina i>. Justices of Warwickshire, lxxxviii. 837 ; 6 B. & B. 837. Under 11 & 12 Vict. c. 112, action does not lie against contractors under the Metropolitan Commissioners of Sewers. Ward v. Lee, xc. 426 ; 7 E. & B. 426. Indictment against corporation may be removed by certiorari to Queen's Bench by prosecutor without his recognisance, under 16 & 17 Vict. c. 30. Regina v. Mayor of Manchester, xc. 453 ; 7 E. & B. 453. Action does not lie against shareholder in a banking company incorporated under 7 & 8 Vict. c. 113, for debt of corporation. Fell v. Burchett, xc. 537; 7 E. & B. 537. Since 19 & 20 Vict. c. 108, a debtor discharged by Insolvent Debtors' Court not liable to committal for debt included in the adjudication. Copeman v. Rose, xc. 679; 7 E. & B. 679. No compensation, under 8 & 9 Vict. c. 18 & 20, for loss caused by railway over- looking the premises. Re Penny, xc. 660 ; 7 E. & B. 660. Sect. 10 of 19 & 20 Vict. c. 97, applies to actions commenced after the passage of the act for causes which accrued before. Cornill v. Hudson, xcii. 429 ; 8 E. & B. 429. Under s. 88 of 5 & 6 Wm. 4, c. 50, an appeal cannot be brought unless ten days' notice has been given. Regina v. Justices of Lancashire, xcii. 563 ; 8 E. & B. 563. If the appeal has been received without notice it cannot be respited. Ibid. Notice given before an adjourned sessions insufficient. Ibid. 12 & 13 Vict. c. 45, s. 18, for enforcing order of sessions, does not apply to a judgment on an indictment. Regina v. Bateman, xcii. 584 ; 8 E. & B. 584._ An order, under 3 & 4 Vict. c. 54, being served eighteen days before a sessions, and notice of appeal given after the sessions, nineteen days from service, the appeal is triable at the following sessions. Regina v. Justices of Glamorganshire, xcii. 694 ; 8 E. & B. 694. S. 14, of the Mercantile Law Amendment Act 1856, applies where there 'was knowledge and tacit consent to the payments by a contractor within the six years. Jackson i>. Woolley, xcii. 778 ; 8 E. & B. 778. Bailiff having, on an execution, seized the goods of a stranger cannot, under 414 STATUTE, II. (/). 19 & 20 Vict. c. 108, s. 75, distrain them for rent due the landlord. Beard v. Knight, xcii. 865 ; 8 B. & B. 865. Damages, under 9 & 10 Vict. c. 93, may be given for the reasonable expecta- tion of pecuniary advantage from the life of the deceased. Dal ton v. S. E. Kail- way Co., xciii. 296 ; 4 C. B. N. S. 296. But not for funeral or mourning expenses. Ibid. S. 124 of 8 & 9 Vict. c. 18, does not prevent ejectment against the railway company, but enables it to have execution restrained. Marquis of Salisbury v. G. N. Railway Co., xciv. 174; 5 C. B. N. S. 174. Under 14 & 15 Vict. c. 99, s. 6, there may be inspection by plaintiff of papers in possession of defendant, showing results of experiments to test the quality of the article furnished, though it disclose defendant's case. London Gaslight Co. v. Chelsea, xcv. 411 ; 6 C. B. N. S. 411. Qucere, whether a cost-book mining company is a public company, within 1 & 2 Vict. c. 110, s. 14. Nicholls v. Eosewarne, xcv. 480 ; 6 C. B. N. S. 480. Quaere, whether one, whose vendee has paid and accepted the transfer for shares without registering, holds shares in his own right within that act. Ibid. The court confirmed an order made under this statute, on the ground that otherwise there could be no appeal. Ibid. Under 13 & 14 Vict. c. 61, s. 14, on appeal from the county court, security must be given within ten days. Stone v. Dean, xcvi. 504 ; E., B. & E. 504. A complaint, under 11 & 12 Vict. c. 63, must, under 11 & 12 Vict. c. 43, be made within six months after the amount is ascertained and notice given. Ed- dleston v. Francis, xcvii. 568 ; 7 C. B. N. S. 568. Advantage cannot be taken of s. 5, 19 & 20 Vict. c. 97, on motion. Phillips v. Dickson, xcviii. 391 ; 8 C. B. N. S. 391. A bill by an attorney, charging disbursements and a lump sum for services, is not such a signed bill as required by 6 & 7 Vict. c. 73, s. 37. Philby v. Hazle, xcviii. 647 ; 8 C. B. N. S. 647. The owner of a market, penning sheep with hurdles on a pavement, where their droppings cause a nuisance, is bound to remove it, under 18 & 19 Vict. c. 121. Draper v. Sperring, c. 1 13 ; 10 C. B. N. S. 113. Certificate, under 23 & 24 Vict. c. 126, need not negative both wilfulness and malice. Saunders v. Kirwan, c. 514 ; 10 C. B. N. S. 514. Under 8 & 9 Vict. c. 18, s. 124, a railroad company may remain in possession six months after notice of an unknown claim to lands it is authorized to pur- chase, if no dispute as to title. Jolly v. W. & D. Railway Co., ci. 807 ; 1 B. & S. 807. 43 Geo. 3, c. 46, s. 4, preventing costs, does not apply to an action where a count on a judgment is joined with a count on some other cause of action. Jack- son v. Everett, ci. 857 ; 1 B. & S. 857. Under s. 73 of 18 & 19 Vict. c. 122, the matter of complaint within the mean- ing of 11 & 12 Vict. c. 43, s. 11, arises when the demand is made, not when the expenses incurred. Labalmondiere v. Addison, cii. 41 ; 1 E. & E. 41. An action at law does not lie for expenses, under s. 34 of 17 & 18 Vict. c. 183. Blackburn v. Parkinson, cii. 71 ; 1 E. & E. 71. The " sum recovered," in 7 & 8 Vict. c. 96, s. 57, means the amount for which judgment was properly signed and not the amount remaining due. West v. Farlar, cii. 179 ; 1 E. & E. 179. The justices cannot determine a complaint, under 18 & 19 Vict. c. 121, unless both the cause and the effect of the nuisance be within the area of their juris- diction. Regina v. Cotton, cii. 203 ; 1 E. & E. 203. An order, under 18 & 19 Vict. c. 122, s. 73, must show that the owner was summoned to answer the complaint and an adjudication of its truth, and the justice at the hearing may inquire as to the validity of the order. Labalmon- diere v. Frost, cii. 527 ; 1 E. & E. 527. A lessee for twenty-one years, and not the lessor, is the owner, within sect. 73 of 18 & 19 Vict. c. 122._ Mourilyan v. Labalmondiere, cii. 533 ; 1 E. & E. 533. Where injury is sustained by exercise of statutory powers, the person injured is not entitled to damages, under compensatory clause of the statute, unless the injury is actionable apart from the statute. New River Co. o. Johnson, cv. 436 ; 2E. &E.436. Scire facias will not be granted against party as shareholder, under 8 & 9 Vict. STATUTE, II. (/), ( c. 32, are cumulative. Saunders v. Baldy, cxviii. 791 ; 6 B. & S. 791. The objection, under s. 3 of 8 & 9 Vict. c. 20, that a justice is interested, may be waived. Wakefield v. W. R. & G. Railway Co., cxviii. 794 ; 6 B. & S. 794. The penalty for disobedience to an order to repair a road, under s. 58, must be imposed by the same justices who made it. Ibid. A by-law under s. 109 of 8 & 9 Vict. c. 20, providing that a passenger not delivering up his ticket should pay his fare from the place where the train started, under a penalty, applies only to one who having a ticket wilfully refuses to deliver it. Dearden v. Townsend, cxviii. 861 ; 6 B. & S. 861. III. Construction or particular Statutes. Condition that telegraph company not responsible for mistakes in transmission of unrepeated messages is reasonable under act 16 & 17 Vict. c. 203. Mac Andrew v. Electric Telegraph Co., lxxxiv. 3 ; 17 C. B. 3. Where part of lands charged under Lands Improvement Company's Acts, 16 & 17 Vict. c. 154 and 18 & 19 Vict. c. 84, is subject to mortgage, the whole amount of charge has priority until apportionment. Lands Improvement Co. v. Richmond, lxxxiv. 145 ; 17 C. B. 145. Corrupt Practices' Prevention Act, 17 & 18 Vict. c. 102. Grant v. Guinness, lxxxiv. 190 ; 17 C. B. 190. Misdescription, under 1 & 2 Vict. c. 110. Brown v. Thompson, lxxxiv. 245 : 17 C. B. 245. Sect. 13 of 6 & 7 Vict. c. 18, requiring lists of voters to be signed by overseers is directory only. Morgan v. Parry, lxxxiv. 334; 17 C. B. 334. Cestui que trust not in actual possession or receipt of profits not entitled to vote, under 6 & 7 Vict. c. 18. Anelay v. Lewis, lxxxiv. .316 ; 17 C. B. 316. One who delivers coals upon vessel sent by purchaser, not the shipper or owner, liable for tolls, under Ribble Navigation Act, 16 & 17 Vict. c. 170. Public Nav- igation Co. v. Hargreaves, lxxxiv. 385 ; 17 C. B. 385. Where A. employed B. to prepare drama, paid expenses and it was understood that A. should have right of representation in London, and B. in the country, held that B. was author and proprietor, under 3 & 4 Wm. 4, c. 15. Shepherd v. Conquest, lxxxiv. 427 ; 17 C. B. 427. Liability of committee of visitors of lunatic asylum to be sued, under 8 & 9 Vict. c. 126. Kendall v. King, lxxxiv. 483 ; 17 C. B. 483. An attaching creditor is secured within meaning of s. 184 of Bankrupt Act, 12 & 13 Vict. c. 106, but has not "lien" to bring him within the exception. Holmes v. Tutton, Ixxxv. 65 : 5 B. & B. 65. STATUTE, III. 429 Who entitled to be registered as pharmaceutical chemists, under Pharmaceuti- cal Society's Act, 15 & 16 Viot. c. 56. Regina v. Pharmaceutical Society, lxxxv. 138 ; 5 E. & B. 138. Gaming and contribution, under 8 & 9 Vict. c. 109, s. 18, and proviso. Par- sons v. Alexander, lxxxv. 263 ; 5 E. & B. 263. Covenant to keep premiums on policy of insurance paid not a contingency, within s. 178 of Bankrupt Act, 12 & 13 Vict. c. 106. Warburg v. Tucker, lxxxv. 384; 5E. &B. 384. • Semble, that owners of ferries within s. 99, 7 & 8 Geo. 4, c. 75, do not require license. Matthews v. Peache, lxxxv. 546 ; 5 E. & B. 546. Militia man is a soldier within 9 & 10 Vict. c. 66. Ilorton c. Leeds, lxxxv. 595 ; 5 E. & B. 595. A society whose object is the elevation of the physical, intellectual, moral and religious condition of the working classes, is not instituted for " purposes of science, literature and fine arts exclusively," so as to be exempt from rates, under 6 & 7 Vict. c. 36. Scott v. St. Martin, lxxxv. 558 ; 5 E. & B. 558. The interference provided for by Railway Clauses Consolidation Act, 8 & 9 Vict. c. 20, is not an interference with the road which it is the object of the special act to change, but with other roads. Tanner v. S. W. Railway Co., lxxxv. 618 ; 5 E. & B. 618. Under General Turnpike Act, 9 Geo. 4, c. 77, the power to build toll houses, &c, along the side of the road, is limited to enclosures over which public has an easement. Beckett v. Upton, lxxxv. 629 ; 5 E. & B. 629. Queen in council, under 16 & 17 Vict. c. 134, may direct discontinuance of burials in churchyards, situate in towns and established under church building acts. Regina v. Justice of Manchester, lxxxv. 702 ; 5 E. & B. 702. Under 15 & 16 Vict. c. 31, suit must be brought against officers appointed for the purpose. Burton v. Tannahill, lxxxv. 797 ; 5 E. & B. 797. Assistant clerk of county court is an officer liable to penalty, under 9 & 10 Vict. c. 95. Ackroyd v. Gill, lxxxv. 808 ; 5 E. & B. 808. Notwithstanding provision for penalties, in 7 & 8 Vict. c. 15, person injured may sue for injury at common law. Caswell v. Worth, lxxxv. 849 : 5 E. & B. 849. Owner not fencing in shaft, under 7 & 8 Vict. c. 15, liable for injuries, though machinery put where not dangerous. Doel v. Sheppard, lxxxv. 856 ; 5 E. & B. 856. Cart carrying street sweepings, to be sold as manure, exempt from toll, under Bristol Road Act, 59 Geo. 3, c. 95, and general act,' 5 & 6 Wm. 4, c. 18. Regina v. Freke, lxxxv. 944 ; 5 E. & B. 944. Thirty years enjoyment does not, under Prescription Act, 2 & 3 Wm. 4, c. 71, give right to a common which could have had no legal origin. Mill v. Commis- sioner of New Forest, lxxxvi. 60 ; 18 C. B. 60. A local act to provide for maintenance of borough prisoners in county gaol not a contract, within 5 & 6 Vict. c. 98, s. 18, and is repealed by that act. Bramston v. Mayor of Colchester, lxxxviii. 246 ; 6 E. & B. 246. Qucere, whether, under 5 & 6. Wm. 4, c. 76, s. 32, description of voter in vot- ing paper, as of a certain parish, is sufficient. Regina v. Spratley, lxxxviii. 363 ; 6 E. & B. 363. If a misdescription, it is cured by s. 142. Ibid. Under 7 & 8 Vict. c. 101, s, 39, decision of auditor of the poor law, on an at- torney's bill, is final, unless it was taxed before presentation. Regina v. Hunt, lxxxviii. 408 ; 6 E. & B. 408. Where one-third of a local board of health, consisting of nine, were to go out on a certain day, and before that time three having ceased to be members, these three were selected to go out and three new members were elected, the board was held legally constituted, under 11 & 12 Vict. c. 63. Howitt v. Manfull, lxxxviii. 736 ; 6 E. & B. 736. The Gun-barrel Proof Act, 18 & 19 Vict. c. 148, does not require either the Gunmakers' Company of London or the Gunmakers' Company of Birmingham to make definitive proof after provisional proof has been made by the other. Good- man v. Spencer, lxxxix. 93 ; 2 C. B. N. S. 93. Remedy provided for recovery of expenses in s. 225 of 18 & 19 Vict. c. 120, is 430 STATUTE, III. the only ono and an action will not lie. Vestry of St. Pancras v. Batterbury, lxxxix. 477 ; 2 C. B. N. S. 477. The provisions of the Municipal Corporation Keform Act, 5 & 6 ¥m. 4, c. 76, with respect to the time of revising burgess lists are directory only. Kegina v. Mayor of Rochester, xc. 910; 7 E. & B. 910. Affirmed in Exchequer Chamber, xcvi. 1024 ; E., B. &. E. 1024. Under 18 & 19 Vict, c. 105, s. 14, a borough having a separate Quarter Sessions and contributing to the county rate is not liable for the expenses of a lunatic, whose settlement is unascertained, sent from it to an asylum. Guardians of Birmingham v. Beaumont, xcii. 870 ; 8 E. & B. 870. Under Nuisances Removal Act, 18 & 19 Vict. c. 121, houses using a sewer in an adjoining district are not assessable by the latter. Regina v. Tatham, xcii. 915 ; 8 E. & B. 915. Under s. 83 of 18 & 19 Vict. c. 122, trespass does not lie against a landlord owning the adjoining house who enters and rebuilds the party-wall without notice to tenant or surveyor. "Wheeler v. Gray, xciii. 584 ; 4 C. B. N. S. 584. Affirmed in Exchequer Chamber, xcv. 606 ; 6 C. B. N. S. 606. Private right of property does not affect the operation of s. 63 of the Harbour Act, 10 & 11 Vict. c. 27. Gardner ». Whitford, xciii. 665 ; 4 C. B. N. S. 665. Injunction under the Railway Traffic Act, 17 & 18 Vict. c. 31, refused, where the application asked for more than was necessary to redress the grievance. In re Cooper and S. W. Railway Co., xciii. 738 ; 4 C. B. N. S. 738. A continuing guaranty which the guarantor may determine by notice is a con- tingent liability within s. 178 of 12 & 13 Vict. c. 106. Boyd v. Robins, xciii. 749 ; 4 C. B. N. S. 749. Reversed in Exchequer Chamber, xciv. 597 ; 5 C. B. N. S. 597. Three persons taken into partnership by the lessee of a mill in a business requiring its occupation in common, the partnership furnishing funds for the rent, are tenants within s. 27 of 2 Wm. 4, c. 45. Rogers v. Harvev, xciv. 3 ; 5 C.B. N.S. 3. J. . The military knights of Windsor have not an office, and do not occupy their houses as owners or tenants, so as to be entitled to be registered, 2 Wm. 4, c. 45, s. 27. Heartley v. Banks, xciv. 40; 5 C. B. N. S. 40. A bill, in consideration of allowing bankrupt's certificate, accepted in blank by the bankrupt before, but not drawn or dated until after the certificate, is not a void security, within sect. 202 of 12 & 13 Vict. c. 106. Goldsmid v. Hampton, xciv. 94; 5 C. B. N. S. 94. 13 & 14 Vict. c. 99, being in force, the owner of tenements not exceeding 61. each in value, assessed to the poor rate instead of the occupier, is entitled to vote at vestry meetings, under 58 Geo. 3, c. 69, and at most can have but six votes. Richardson v. Gladwin, xcvi. 138 ; E., B. & E. 138. The occupier has no such vote. Ibid. The obligee of a bond containing a provision that not less than one-fifth should be paid each year, charged on the poor rates, under 6 & 7 Wm. 4, c. 96, s. 3, may enforce payment from rates, after the five years, if not negligent. Regina v. Hurstbourne Tarrant, xcvi. 246 ; E., B. & E. 246. Covenants to keep up the premiums on a policy of life insurance, is not a lia- bility to pay money on a contingency, within sect. 178 of 12 & 13 Vict. c. 106. Warburg v. Tucker, xcvi. 914 ; E., B. & E. 914. Assignment by the landlord, during the year of occupation, of a part of the reversion, does not disqualify tenant, under 2 Wm. 4, e. 45, s. 27, from voting. Smerdon v. Tucker, xcvii. 37 ; 7 C. B. N. S. 37. The designer of a dramatic representation, who engages another to write the music, for a reward, with an agreement that it shall become a part of the repre- sentation, is the owner of the music, under 3 & 4 Wm. 4, c. 15, and 5 & 6 Vict. c. 45. Hatton i>. Kean, xcvii. 268 ; 7 C. B. N. S. 268. Sect. 24 of 5 & 6 Wm. 4, c. 50, contemplates the erection of posts by the side of a foot or horse-way, running parallel to a carriage way, and not at its extremity. Ellis v. Woodbridge, xcviii. 290 ; 8 C. B. N. S. 290. 13 Geo. 2, c. 26, providing that the river to be made navigable, and all lands used by the company for the benefit of the navigation, should be vested in the company, gives them such an interest in the water itself as is interfered with by its abstraction. Medway Co. v. Romney, xcix. 575 ; 9 C. B. N. S. 575. STATUTE, III. 431 What is a highway, within sect. 69, of the Public Health Act, 11 & 12 Viet. c. 63. Wallington v. White, c. 128 ; 10 0. B. N. S. 128. 18 & 19 Viet. e. 128, s. 18, does not apply to burying grounds in the parish, the property of private persons. Regina v. Burial Board, ci. 679 ; 1 B. & S. 679. Under 18 & 19 Vict. c. 120, requiring the construction of a series of works, the vestry have a discretion as to the order, time and manner. Reeina v. St. Luke's, ci. 903 ; 1 B. & S. 903. Statute 6 & 7 Vict. c. 18, s. 62, requires appeal to be within ten days, if pos- sible. Luckett v. Gilder, ciii. 1 ; 11 C. B. N. S. 1. Under 27th section of Reform Act, 2 Wm. 4, c. 45, a lay clerk, who occupies a house as lay clerk, is neither tenant nor owner. Bridgewater v. Durant, ciii. 7 : 11 C. B. N. S. 7. 6 & 7 Vict. c. 18, s. 100, makes a stamped duplicate, returned by the post- master to objector (to a voter), proof of transmission by post of the objection signed by the objector. Lewis v. Roberts, ciii. 23 ; 11 C. B. N. S. 23. Under 2 Wm. 4, c. 45, s. 27, the occupation of part of a house not completely severed from the rest, is not a tenancy. Cook v. Humber, ciii. 33 ; 11 C. B. N. S. 33. Under 2 Wm. 4, c. 45, s. 27, the occupation of " offices" not actually severed from the rest of the premises is not a tenancy. Wilson v. Roberts, ciii. 50 : 11 C. B. N. S. 50. Actual receipt of a notice which has been posted is a sufficient service of ob- jection, under 6 & 7 Vict. c. 18. Smith v. Huggett, ciii. 55 ; 11 C. B. N. S. 55. Smith v. James, ciii. 62; 11 C. B. N. S. 62. Occupants of hospital rooms during good behavior, who can neither let, nor assign, nor permit another to occupy with them, are not freeholders, under 8 Hen. 6, c. 7. Freeman v. Gainsford, ciii. 69 ; 11 C. B. N. S. 69. The receipt of part of an ancient fee by a parish clerk on the opening of every grave does not make him a freeholder, under 8 Hen. 6, c. 7. Bushell v. Eastes, ciii. 106 ; 11 C. B. N. S. 106. The receipt of an annual stipend paid out of revenues derived from lands, does not entitle a person to vote, under 8 Hen. 6, c. 7. Hall v. Lewis, ciii. 114 ; 11 C. B. N. S. 114. An ad interim order, under 6 & 7 Vict. c. 116, and 7 & 8 Vict. c. 96, protects from an arrest on a ca. sa., issued under a judgment for a debt contracted after petition filed. Wallinger ».«Gurney, ciii. 182 ; 11 C.B. N. S. 182. A vessel moored to an old wharf is not a " shop," under 21 & 22 Vict. c. 105 ; Wiltshire v. Baker, ciii. 237 ; 11 C. B. N. S. 237. A " shop," under 21 & 22 Vict. c. 105, need not be attached to dwelling-house of vendor. Wiltshire v. Willett, ciii. 240; 11 C. B. N. S. 240. Under Statute 17 Vict. c. 67, s. 158, placing large stones across a river, without cement or fastening, does not make a "building, erection or thing." Colbran v. Barnes, ciii. 246 ; 11 C. B. N. S. 246. Under 18 & 19 Vict. c. 108, plaintiff may have costs where judgment is by default under same circumstances as he could after verdict, before statute. Baddeley v. Bernand, ciii. 422 ; 11 C. B. N. S. 422. Under 23 & 24 Vict. c. 126 , s. 34, the right to deprive plaintiff of costs, in ac- tions for an " alleged wrong," does not include detinue. Danby v. Lamb, ciii. 423 ; 11 C. B. N. S. 423. Statute 43 Eliz. c. 6, s. 2, is still in force in actions on promises, which includes detinue. Ibid. Under 2 & 3 Wm. 4, c. 7, one tenant may obtain a prescriptive right to light and air 'against another tenant of same landlord. Frewen v. Philipps, ciii. 449 ; 11 C. B. N. S. 449. 8 & 9 Vict, c 16, s. 27, gives right to call on shareholder, though register has not been made and sealed within time provided for by s. 9 of the act. Wolver- hampton v. Hawksford, ciii, 456 ; 11 C. B. N. S. 456. Acting under an instruction to deliver letters is no defence for a violation of 10 & 11 Vict. c. 89, s. 28. Clarke v. Hoggins, ciii. 545 ; 11 C. B. N. S. 545. 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, provide that the final_ order under them shall be an absolute bar in all actions, in which it is a protection. Markin v. Aldrich, ciii. 598; 11 C. B. N. S. 598. 432 STATUTE, III. 3 & 4 Win. 4, o. 74, requires an affidavit to be sworn to before a magistrate. Re Arabella "Woodman, ciii. 631 ; 11 C. B. N. S. 631. 49 Geo. 3, c. 126, does not apply to a contract to supply volunteer uniforms, with intent that purchaser may obtain a military commission. Eicke v. Jones, ciii. 632; 11 C.B.N. S. 632. Under 15 & 16 Vict. c. 54, the discretion of the judge in allowing or withhold- ing costs is to be guided by the propriety of bringing the action, and not with reference to complications introduced by special pleading. Howlett v. Tarte, ciii. 634; 11C. B.N. S. 634. Under 2 & 3 Vict. c. 28, and 3 & 4 Vict. c. 28, a watch rate may be imposed on the whole borough. Railway Co. v. Maidenhead, ciii. 653 ; 11 C. B. N. S. 653. The interest of the owner of the soil under a common is to be included in taking the consents and dissents in proceedings for an enclosure, under 8 & 9 Vict. c. 118. Church v. Enclosure Commissioners, ciii. 664 ; 11 C. B. N. S. 664. The expenses incident to passing Metropolitan Gas Act, 23 & 24 Vict. c. 125, are to be paid by Metropolitan Board of Public Works to promoters of the act and not to their solicitor or parliamentary agent. Wyatt v. Board of Works, ciii. 744; 11 C. B. N. S. 744. Under 17 & 18 Vict. c. 21, a railway company will be enjoined from allowing a carrier to receive goods as their agent on different terms from those applied to other shippers. In re Baxendale and Bailway Co., ciii. 787 ; 11 C.'B. ft. S. 787. Under 18 & 19 Vict. c. 3, an assignee of a bill of lading is not liable for freight where he assigned the bill of lading to third persons, who have received the goods. Smurthwaite ». Wilkins, ciii. 843 ; 11 C. B. N. S. 843. 6 & 7 Vict. c. 73, s. 37, does not prevent an attorney from pleading a claim for costs as a setoff, although he has not presented his bill. Brown v. Tibbits, ciii. 855 • 13 C. B. N. S. 855. 6 & 7 Wm. 4, c. 74, does not take away jurisdiction of commissioners, when there is an existing modus. Re Wintringham Tithes, ciii. 879 ; 11 C. B. N. S. Words " in search or pursuit of game," under 1 & 2 Wm. 4, c. 32, s. 30, in- cluded picking up of a bird just killed. Osbond v. Meadows, civ. 10 ; 12 C. B. N. S. 10. The receipt and delivery of parcels at a cloak room at the terminus of a rail- way by the railway company, is not within the provisions of 17 & 18 Vict. c. 31. VanToll v. S. E. Railway Co. civ. 76 ; 12 C. B. ft. S. 76. 16 & 17 Vict. c. 156, does not regulate charge for packages. Branley v. S. E. Railway Co. civ. 63 ; 12 C. B. N. S. 63. 2 Vict. c. 42, permits carriers to charge a different rate for packed parcels, if its rate is same to all persons : per Erie, C. J. Ibid. Statute 11 & 12 Vict. c. 163, as to numbering houses in city of London, is re- pealed by 18 & 19 Vict. c. 120. Daw v. Metropolitan Board, civ. 162; 12 C. B. N. S. 162. ' A contract that rent shall be increased if a tax is imposed, is not made illegal by 5 & 6 Vict. c. 35, s. 73. Colbron v. Travers, civ. 181 ; 12 C. B. N. S. 181. 49 Geo. 3, c. 126, makes sale of a commission in East India Company illegal. Eyre v. Eorbes, civ. 191 ; 12 0. B. N. S. 191. The rate for " repairs of churches," in 58 Geo. 3, c. 45, means for celebration of divine service and duties of churchwarden, as well as maintenance of church edifice. Regina v. Consist. Court, civ. 220 ; 12 C. B. N. S. 220. _ 1 & 2 Wm. 4, c. 1, s. 56, makes it obligatory on steam vessels plying between river Itchen at Southampton and the Isle of Wight to call at the Royal Pier at Southampton, when requested by five passengers to do so. Parrand v. Cooper, civ. 284; 12 C.B.N. S. 284. Subsequent stamping of articles of clerkship, under 19 & 20 Vict. c. 81, s. 3, will enable attorney's clerk to have time computed from date of execution, where the omission to stamp at the proper time resulted from an emergency which the court could justly infer was entirely unforeseen. Ex parte Bredden, civ. 352 ; 12 C. B. N. S. 352 ; reconsidering, ex. 649 ; 2 B. & S. 649. Neither 59 Geo. 3, c. 134, s. 25, nor 3 Geo. 4, c. 72, s. 26, takes away the right to demand a toll, in order to establish the desire of a parish in regard to pur- chase of an additional burial-ground. White v. Steele, civ. 384 ; 12 C. B. ft. S. 384. STATUTE, III. 433 Prescription Act, 3 & 4 Wm. 4, c. 71, s. 3, destroys custom to rebuild to any height in city of London. Cooper v. Hubbuck, civ. 456 ; 12 C. B. N. S. 456. 12 & 13 Vict, c. 106, s. 165, permits proof of claim for breach of an agree- ment occurring before bankruptcy, to replace shares of railway stock, pay divi-' dends on them, and indemnify for calls on shares of mining stock. Betteley v. Stainsby, civ. 477 ; 12 0. B. ft. S. 477. 29 Eliz. c. 4, does not give sheriff poundage where, after seizure and before sale, judgment and subsequent proceedings are set aside for irregularity. Miles v. Harris, civ. 550 ; 12 C. B. N. S. 550. Under 1 Geo. 2, c. 20, the guardians of the poor of Canterbury cannot appren- tice Blue Coat boys against their will, or after age of fifteen. St. Nicholas v. St. Botolph, civ. 646 ; 12 C. B. N. S. 646. 8 & 9 Vict. c. 110, does not enable promoters of a company provisionally registered, to make contract binding on completely registered company, except for objects named in s. 23. Gunn v. L. & L. Assurance Co., civ. 694 ; 12 C. B. N. S. 694. 20 & 21 Vict. c. 14, prohibits insurance, company, which also lends money, from suing, unless registered under that act. L. & P. Provident Society v. Ashton, civ. 709 ; 12 C. B. N. S. 709 ; s. c. reversed in Ex. Ch., civ. 724 ; 12 C. B. N. S. 724. 17 & 18 Vict. c. 36, requires the description of the occupation of a person giving a bill of sale, in the affidavit filed with the bill, to fit the person at time of giving the bill. L. & W. Loan Co. v. Chase, civ. 731 ; 12 C. B. N. S. 731. Under 17 & 18 Vict. c. 31, a railway company cannot compel other carriers to deliver goods at an earlier hour than it receives goods delivered at its own receiving office. In re Baxendale, &c, civ. 758 ; 12 C. B. N. S. 758. Metropolis Local Management Act, 18 & 19 Vict. c. 120, does not prevent suit against a contractor for negligence, though he is obeying general directions of a public body, acting gratuitously for public benefit. Clothier v. Webster, civ. 790; 12 C. B. N. S. 790. Where 16 & 17 Vict. c. 107 is violated, whole voyage is illegal. Cunard v. Hyde, cv. 1; 2 E. & E. 1. 18 & 19 Vict. c. 128, s. 12, authorizes a burial board for the rest of a parish, where there is already a legal burial board for a part of the parish. V iner v. Tonbridge, cv. 9 ; 2 E. & E. 9. Under 5 & 6 Wm. 4, c. 107, s. 168, a guilty knowledge in the person who sends, or causes to be sent by railway, the articles mentioned therein, is neces- sary to render him liable to penalty of act. Heme v. Garton, cv. 66 ; 2 E. & E. «6. A warehouse, occupied for business purposes only and not connected with any dwelling-house, is a ' place," within s. 10 of 7 Geo. 3, c. 56, which provides for a search-warrant to search " any dwelling-house, out-house, yard, garden, or other place or places," where there is cause to suspect that embezzled or purloined goods, used in certain manufactures, are concealed. Begina v. Edmundson, cv. 77 ; 2 E. & E. 77. Under 5 & 6 Wm. 4, c. 76, there is a vacancy in number of borough councillors, where the mayor goes out of office as a councillor on November 1st, though, as mayor, he remains a member of the council till November 9th. Begina v. Owens, cv. 86; 2E. &E. 86. " University of London," in 21 & 22 Vict. c. 99, s. 3, means the "senate," and not the whole body incorporated as the university by the charter. Begina v. Storrar, cv. 133 ; 2 E. & E. 133. A wet dock, tidal basin and canal are " property other than land," and ejusdem generis with " houses" and " buildings" mentioned in statute, 3 & 4 Wm. 4, c. 90, s. 33 : Erie, contra. Peto v. Westham, cv. 144 ; 2 E. & E. 144. Under 17 & 18 Vict. c. 219, s. 31, the " guardians of the poor within the city of Oxford," and not guardians of the poor of the several parishes in Oxford, are liable for costs mentioned therein. Mallam v. Oxford, cv. 193 ; 2 E. & E. 193. Under 3 & 4 Vict. c. 86, s. 3, a bishop has a discretion as to issuing a commis- sion or not. Begina v. Chichester, cv. 209 ; 2 E. & E. 209. The equity of Statute 2 Wm. & M., sess. 1, c. 5, s. 2, authorizes a tender by Vol. III.— 28 434 STATUTE, III. tenant -within fire days of distress, though after impounding on premises. John- son v. Upham, cv. 250 ; 2 E. & E. 250. 20 & 21 Vict. c. 43, does not authorize an appeal from refusal of justices to issue a summons to enforce highway rate, where refusal is because of non-liability of the land to such rate. Walker v. The G. W. Railway Co., cv. 325 ; 2 E. & E. Under 40 Geo. 3, c. 99, s. 14, an order cannot be made on pawnbroker, by magistrate, to deliver goods negligently lost by a burglary, to compensate the owner, but compensation may be awax - ded, under sect. 24 of same act. Shackell v. West, cv. 326 ; 2 E. & E. 326. Semble, that, under 20 & 21 Vict. c. 43, s. 6, the Court of Queen's Bench has power, on appeal, to amend order of magistrate, made under 40 Geo. 3, c. 99. Ibid. Under 43 Geo. 3, c. 59, justices are not bound to make an order to widen a bridge, until a presentment has been made ; and if the bridge is proved too narrow, they have a discretion whether they will widen it. Re Newport Bridge, cv. 377 ; 2 E. & E. 377. Under 53 Geo. 3, c. 127, s. 7, to oust the jurisdiction of justices, notice that validity of rate is disputed, must be given in such way as to cause justices to forbear giving judgment. Regina v. Salop, cv. 386 ; 2 E. & E. 386. Statute 7 & 8 Vict. c. 110, s. 23, does not forbid a call on subscribers to a pro- jected railway company, for preliminary expenses, before complete registration. Aldham v. Brown, cv. 398 ; 2 E. & E. 398. Affirming s. c, xc. 104 ; 7 E. & B. 164. An appeal, under 11 & 12 Vict. c. 63, lies only to the Quarter Sessions. Re- gina v. Gloucestershire, cv. 420 ; 2 E. & E. 420. Disturbance of a well, or interference with water percolating under ground, is not actionable, under 10 & 11 Vict. c. 17. New River Co. v. Johnson, cv. 436 ; 2 E. & E. 436. 18 & 19 Vict. c. 120, wholly exempts, from the lighting rate thereby imposed, land exempted under a previous local statute. E. L. Waterworks Co. v. Over- seers, cv. 447 ; 2 E. & E. 447. Where goods are in possession, order or disposition of another, at time of bankruptcy, with the consent of the true owner, under 12 & 13 Vict. c. 106. Acraman v. Bates, cv. 457 ; 2 E. & E. 457. The registry of a bill of sale, under 17 & 18 Vict. c. 136, in no way affects the application of the provisions of 12 & 13 Vict. c. 106. Badger v. Shaw, cv. 472; 2 E. & E. 472. 3 & 4 Wm. & M. c. 11, in order for a person to acquire a settlement, requires an intention on part of parish officers to charge him with payment of rates. Regina v. St. Anne, cv. 485 ; 2 E. & E. 485. An order suspending an order of removal, under 35 Geo. 3, c. 101, must be made at same time as the order of removal. Regina v. Llanllechid, cv. 530 ; 2 E. & E. 530. 15 & 16 Vict. c. 81, applies to tenants in ancient demesne. Regina v. Ayles- ford, cv. 539 ; 2 E. & E. 539. " Thornbury with Netherwood" is not such a separate entry as to make " Netherwood" a separate parish, under 20 Vict. c. 19. Regina v. Mytton, cv. 557 ; 2 E. & E. 557. Neither 11 Hen. 7, c. 12, nor Reg. Gen. Hil. 1853, r. 121, allows anything to be taxed in respect of attorney's or counsel's services, where plaintiff sues in forma pauperis. Dooly o. G. N. Railway Co., cv. 576 ; 2 E. & E. 576. Under 16 & 17 Vict. c. 97, s. 113, the Quarter Sessions has not power to amend an order on " churchwardens and overseers," so as to make it on " guardians of the poor," who were not before the court. Regina v. Liverpool, cv. 687 ; 2 E. & E. 687. Under 18 & 19 Vict. c. 108, a mine is being worked on Sunday, when in use for mining purposes during the week, though no work is done on Sunday. Knowles v. Dickinson, cv. 705 ; 2 E. & E. 705". Under 3 & 4 Wm. & M. c. 11, an attorney's clerk articled by indenture, gains a settlement in place where he serves under his articles as an apprentice. St. Pancras v. Clapham, cv. 743 ; 2 E. & E. 743. A watch rate on all rateable property except that within a certain distance of STATUTE, III. 435 a street continuously watched is a public tax within 3 & 4 Wm, & M. c. 10. Everton v. South Stoneham, cv. 771 ; 2 E. & E. 771. Under 29 Car. 2 c. 8, and 1 & 2 Wm. 4, c. 45, a rent covenanted to be paid a perpetual curate by lessee of a tithe rent charge from archbishop of Canterbury, who had previously granted the rent to curate, is part of rent paid by lessee. Regina v. Groves, cv. 794 ; 2 E. & E. 794. Under statute 16 & 17 Vict. c. 99, justices may review an order made by them under s. 98. All Saints v. Middlesex, cv. 830 : 2 E. & E. 830. The contingent reversionary interest of a judgment debtor in stock assigned by him to trustees to pay his debts, with an express resulting trust to himself, after payment of debts and life interest to another, is within 1 & 2 Vict. c. 110, and 3 & 4 Vict. c. 82. Baker ». Tynte, cv. 898 ; 2 E. & E. 898. Under 13 & 14 Vict. c. 61, s. 14, an appellant is entitled to his appeal from county courts, though presented to judge more than twelve days after judgment. Hack- ing v. Lee, cv. 906 ; 2 E. & E. 906. Appeal, given by 13 & 14 Vict. c. 61, was not taken away by rule 145, under 18 & 19 Vict. c. 108, s. 32. Ibid. Earthenware jugs or drinking cups, used as measures, are within 5 & 6 Wm. 4, c. 63, although not stamped, and person, in whose possession found, liable to pen- alty. Regina v. Aulton, cvii. 568 ; 3 E. & E. 568. Powers of officers, appointed under Thames Conservancy Act, 20 & 21 Vict. c. 147, the same as under 30 Geo. 2, c. 21. Turnidge v. Shaw, cvii. 588 ; 3 E. & E. 588. But the penalties for obstructing them are limited to those prescribed in later act. Ibid. When jurisdiction of county courts exclusive, under 9 & 10 Vict. c. 95. Cope- man v. Hart, cviii. 731 ; 14 C. B. N. S. 731. Reasonableness of by-law regulating markets, under 16 & 17 Vict. c. 24. Sav- age v. Brook, cix. 264 ; 15 C. B. N. S! 264. How far prior local act affected thereby. Ibid. What lands are subject to enclosure, under 8 & 9 Vict. c. 118. Chilcote v. Youlden, cvii. 7 ; 3 E. & E. 7. Where language is precise and clear, provisions must be carried out. Regina v. Glamorganshire Canal Co., cvii. 186 ; 3 E. & E. 186. Owner of fishing mill-dam, on salmon stream, under 24 & 25 Vict. c. 109, s. 20, must remove obstructions to free passage of fish. Hodgson v. Little, cviii. Ill - 14C.B. N. S. 111. , By 18 & 19 Vict. c. 120, s. 76, giving power to district board to demolish house, unless notice is given of intention to build, party is entitled to be heard. Coop- er v. Board of Works, cviii. 180 ; 14 C. B. N. S. 180. Effect of 11 & 12 Vict. c. 89, s. 69, regulating bathing on the shore. Mace v. Philcox, cix. 600 ; 15 C. B. N. S. 600. Who are persons of notoriously bad character, within 9 Geo. 4, c. 61, s. 21. Parker v. Green, ex. 299 ; 2 B. & S. 299. What not sufficient ground for refusal to renew license to keep an inn, &c, under 9 Geo. 4, c. 61. Begina v. Sylvester, ex. 322 ; 2 B. & S. 322. Liability of board of health, under 11 & 12 Vict. c. 63, to contractor, for sewers, &c. Worthington v. Sudlow, ex. 508 ; 2 B. & S. 508. Under 21 & 22 Vict. c. 98, ss. 12, 14 and 16, a sub-district which has had its boundaries settled, under the act, cannot adopt the act as a sub-district, after the district in which it is included has adopted the act. In re Matlock Bath, ex. 543 ; 2 B. & S. 543. Under 5 & 6 Wm. 4, c. 76, s. 105, the recorder, as sole judge of the Court of Quarter Sessions, is the only person having power to remove a clerk of the peace. Regina ». Hayward, ex. 585 ; 2 B. & S. 585. The repair of burial grounds, by burial board of any parish, under 18 & 19 Vict. c. 128, s. 18, does not apply to private burial grounds. Regina v, St. John, Westgate, ex. 703 ; 2 B. & S. 703. Liability of docks, railways leading thereto, and warehouses belonging to dock company, to poor rate, under 21 & 22 Vict. c. 98, s. 55. Dock Co. v. Board of Health, ex. 708 ; 2 B. & S. 708. Under 3 & 4 Wm. 4, c. 22, s. 13, as to repairs of sea walls, the fact of owner- 436 STATUTE, III. ship should be found by presentment of a jury. Regina v. "Warton, ex. 719 ; 2 B. &S. 719. Qumre, whether that is so also as to the fact of want of repair. Ibid. Under 6 & 7 Wm. 4, c. 86, s. 7, and 7 fm. 4 and 1 Vict. c. 22, s. 14, in case of vacancy in the office of superintendent register, the board of guardians ap- point to fill it. Regina v. Acason, ex. 795 ; 2B. & S. 795. After a vacancy, the clerk to the guardians is not entitled virtute officii to the position. Ibid. What sufficient notice, under 11 & 12 Vict. c. 63, s. 69, requiring owners to sewer, level, pave, &c. Bayley v. Wilkinson, cxi. 161 ; 16 C. B. N. S. 161. Power of arbitrators, under sect. 123, limited to an apportionment of expense merely. Ibid. Under Salmon Fishery Act, 24 & 25 Vict. c. 109, occupier of fishing mill-dam must lift or remove the hatches at particular times, though it injuriously affect his milling power. Hodgson v. Little, cxi. 198 ; 16 C. B. N. S. 198. What is an "erection," under Metropolis Local Management Act, 25 & 26 Viot. c. 102. St. George v. Sparrow, cxi. 209 ; 16 C. B. N. S. 209. It seems, that magistrate can decide what is the line of the street, under said act, and that superintending architect's decision is not final. Ibid. An ad valorem charge for landing goods, under 6 Wm. 4, c. 29, s. 149, is only allowed for articles' enumerated in schedule, or of similar nature, value, and quality. Southampton Dock Co. v. Hill, cxi. 567 ; 16 C. B. N. S. 567 ; affirming S. c. in C. P., cviii. 243 ; 14 C. B. N. S. 243. Under 7 & 8 Vict. c. 15, s. 73, premises solely for manufacturing paper, not within the act, and person so manufacturing not liable for violation of act. Coles v. Dickinson, cxi. 604 ; 16 C. B. N. S. 604. It makes no difference that the building is only part of the factory used solely in the manufacture of paper. Ibid. Limits of district where keeping of swine prohibited, within 25 & 26 Vict. c. 102, s. 73. Vestry of Chelsea v. King, cxii. 625 ; 17 C. B. N. S. 625. Where if; was provided, by 31 Geo. 1, c. 71, that, during suspension of borough, justices of peace should be required to grant licenses to oyster dredgers, and after re-incorporation power and authorities of justices should be in body corpor- ate, latter cannot be compelled to grant licenses. Mills v. Mayor., &C, of Col- chester, cxii. 635 ; 17 C. B. N. S. 635. The duty or obligation of granting a license was not imposed on the borough. Ibid. What limits are included in Bills of Sale Act, 17 & 18 Vict. c. 36, s. 2. Rob- inson v. Collingwood, cxii. 777 ; 17 C. B. N. S. 777. Duty of lighting bridge in parish devolves upon vestry of parish, under 18 & 19 Vict. c. 120. Regina v. Lambeth, cxiii. 1 ; 3 B. & S. 1. Magistrate, under 3 & 4 Vict. c. 110, s. 16, can only make an order for imme- diate payment. Parker v. Boughey, cxiii. 43 ; 3 B. & S. 43. Maintenance, in asylum, of pauper lunatic child, over sixteen, is not relief to the parent, under 9 & 10 Vict. c. 66. Regina v. St. Mary, cxiii. 46 ; 3 B. & S. 46. For warrant to levy penalty, under 18 & 19 Vict. c. 121, s. 20, there must be previous summons. Regina v. Jenkins, cxiii. 116; 3 B. & S. 116. Pauper lunatic, living separate from husband, chargeable upon parish, where she was settled through husband, under 16 & 17 Vict. c. 97, s. 102. Bast Retford v. Strand, cxiii. 122 ; 3 B. & S. 122. Even though the husband was irremovable from another parish. Ibid. 20 Geo. 1, c. 19, s. 1, authorizes justices to make deduction from wages of artificer. Sharp v. Hainsworth, cxiii. 139; 3 B. & S. 139. Pauper child having birth settlement in parish, the mother being actually chargeable, under 7 & 8 Vict. c. 101, s. 56, removable there. Regina v. St. Clem- ent Danes, cxiii. 143 ; 3 B. & S. 143. What is. employment in print works, within 8 & 9 Vict. c. 29. Hardcastle v. Jones, cxiii. 153 ; 3 B. & S. 153. Under 22 & 23 Vict. c. 17 (Vexatious Indictments' Act), discretion of judge to consent to prosecution will not be interfered with. Reeina v. Brav. cxiii 255 • 3 B. & S. 255. J ' ' In an action against a contributory by liquidators of joint stock company to recover call, under 21 & 22 Vict. c. 60, s. 17, defendant can set off claim against the company. Garnet Gold Mining Co. v. Sutton, cxiii. 321 ; 3B. & S. 321. Company with premises abutting on street, liable for sewering and paving, STATUTE, III. 437 under 11 & 12 Viot. o. 63, s. 69 (Public Health Act). Regina v. Board of Health, cxiii. 341 ; 3 B. & S. 341. Requisites ia asking for copy of depositions and giving notice of appeal from order of removal, under 11 & 12 Vict. c. 31, s. 3. Regina v. St. Alkmund, cxiii. 347 ; 3 B. & S. 347. Under 19 & 20 Vict. c. 121, ss. 2, 19, one not owner at time of order to remove nuisance, not liable to an action for costs and expenses of abatement. Blything Union i>. Warton, cxiii. 352 ; 3 B. & S. 352. Assisting at cook-fighting, under 12 & 13 Vict. c. 92, s. 3, must be committed at a place kept for that purpose. Morley v. Greenhalgh, cxiii. 374 ; 3 B. & S. 374 ; Budge v. Parsons, Ibid. 379: A cock is an animal, within 11 & 12 Vict. c. 92, s. 2. Budge ». Parsons, cxiii. 382 ; 3 B. & S. 382. A person fighting his cock after the breaking of its thigh, is liable under the act. Ibid. Attorney occupying building as office is a burgess, and entitled to be a coun- sellor of borough, under 5 & 6 Wm. 4, c. 76, s. 9. Re Creek, cxiii. 459 ; 3 B. & S. 459. Under 11 & 12, c. 43, s. 11, a claim for costs and expenses of putting down sewer can be brought at any time within six months after time for disputing them, under 21 & 22 Vict. c. 98, for which three months are allowed by the act. Jacomb v. Dodgson, cxiii. 461 ; 3 B. & S. 461. Under 13 & 14 Vict. c. 61, s. 11, money less than 2,01. taken out of court, is not money recovered. Boulding v. Tyler, cxiii. 472 ; 3 B. & S. 472. Notice of appeal, under 20 & 21 Vict. c. 43, s. 2, when not sufficient. Banks v. Goodwin, cxiii. 548 ; 3 B. & S. 548. Goods sold, under 2 & 3 Vict. c. 71, ss. 29, 30, will confer a good title on pur- chaser as against one having bare possession, from whom goods were taken. Buckley v. Gross, cxiii. 566 ; 3 B. & S. 566. Discretion of board of health, under 11 & 12 Vict. c. 63, s. 54, to decide upon necessary work, cannot be reviewed by justices. Hargreaves v. Taylor, cxiii. 613 ; 3 B. & S. 613. What amounts to payment of 30Z. to acquire settlement, within 7 Geo. 1, c. 7, s. 5. Regina v. Belford, cxiii. 662; 3 B. & S. 662. Cattle placed on a highway to graze, under care of servant, are not turned loose within 2 & 3 Vict. c. 47, s. 54. Sherborn v. Wells, cxiii. 784 ; 3 B. & S. 784. Construction of 20 & 21 Vict. c. 60, as to membership of joint stock company. Lanyon v. Smith, cxiii. 938 ; 3 B. & S. 938. Costs under 15 & 16 Vict. c. 54, s. 4. Pigrim ». Knatchbull, cxiv. 798 ; 18 C. B. N. S. 798. Where a parish is subdivided into districts, with a burial lot attached to each, the incumbent of each district is entitled to fees for burial, under 15 & 16 Vict. c. 85, s. 32. Day v. Peacock, cxiv. 702 ; 18 C. B. N. S. 702. It seems, that the same duties which they were bound to perform before in their respective districts are imposed by the statute. Ibid. Rule for tonnage of vessels, under Merchant Shippiug Act, 17 & 18 Vict. c. 104, ss. 23, 28. Steam Packet Co. v. Thompson, cxv. 553 ; 19 C. B. N. S. 553. Rights of common or easement in gross, not within Prescription Act, 2 & 3 Wm. 4, c. 71. Shuttleworth ». Le Fleming, cxv. 687 ; 19 C. B. N. S. 687. How far original specification can be affected by disclaimer, under 5 & 6 Wm. 4, c. 83. Ralston v. Smith, cxv. 818 ; 19 C. B. N. S. 818. What is sufficient using of a place for purposes of gaming, under 16 & 17 Vict, c. 119, s. 1. Doggett v. Catterns (reversing s. c. cxii. 669 ; 17 C. B. N. S. 669), cxv. 765 ; 19 C. B. N. S. 765. What not sufficient injury to entitle owner to compensation, under Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, s. 68. , Cameron v. Railway Co., Bourhill v. Same (reversing s. c. cxi. 430; 16 C. B. N. S. 430), Ex. Ch. cxv. 764 ; 19 C. B. N. S. 764. Where enjoyment of watercourse sufficient to entitle one to claim, under 1 in- scription Act, 2 & 3 Wm. 4, c. 71, and when not. Gaved r. Maryn, cxv. 732 ; 19 C B N S 732 When composition deed, under 24 & 25 Vict. c. 134, s. 192, good. Lay v. Mottram, cxv. 479 ; 19 C. B. N. S. 479. 438 STATUTE, III. Vehicle occasionally carrying passengers not liable as a stage coach to return toll, under Local Act, 3 Geo. 4, c. 65, ss. 39, 40. Pearson v. Tazewell, cxv. 384 ; 19 C. B. N. S. 384. Remainder man without notice can recover against Board of Works, under 18 & 19 Vict. c. 120, for injury caused by building of sewer by commissioners during time of tenant for life, under 11 & 12 Vict. c. 112. Pettward v. Board of Works, cxv. 489 ; 19 0. B. N. S. 489. Mere temporary obstruction of street, as by piling rubbish, in erection of public work, is not "damage" within 18 & 19 Vict. c. 120, ss. 135, 225. Herring v. Board of Works, cxv. 510 ; 19 C. B. N. S. 510. It seems that under s. 135, the damage must be structural damage. Ibid. Erection of steam-engine within twenty-five feet of highway prohibited, by 5 & 6 Wm. 4, c. 50, s. 70, unless within building or screened from road. Smith v. Stokes, cxvi. 84 ; 4 B. & S. 84. A steam-engine portable on wheels to drive threshing-machine, is within the act. Ibid. Such engine is dangerous to persons and animals passing on the highway. Ibid. Winding thread by person under eighteen is within 3 & 4 Wm. 4, c. 103, s. 73, so as to make employer liable. Haydon v. Taylor, cxvi. 519; 4 B. & S. 519. So it is incident to a manufacturing process within 7 & 8 Vict. c. 15, s. 73. Ibid. Register of young persons, under 7 & 8 Vict. c. 15, s. 29, when necessary. Ibid. Powers of auditors, under 18 & 19 Vict. c. 120, and 25 & 26 Vict. c. 102, s. 38. Regina v. Board of Works, cxvi. 526, 551 ; 4 B. & S. 526, 551. Where notice given to keep pigeons off, shooting not unlawful, under 24 & 25 Vict. c. 96, s. 23. Taylor v. Newman, cxvi. 89 ; 4 B. & S. 89. Statute 24 & 25 Vict. c. 55, s. 1, requires three years' residence. Wellington v. Whitchurch, cxvi. 100 ; 4 B. & S. 100. Power of court to review, under 7 & 8 Vict. c. 101, s. 35. Regina v. Calthorp, cxvi. 216 ; 4 B. & S. 216. Right of company to tolls, under 36 Geo. 3, c. 67. Navigation Co. v. Wagstaffe, cxvi. 288 ; 4 B. & S. 288. Liability of commissioners, under 17 & 18 Vict. c. 83. Hartnall v. Ryde, cxvi. 361 ; 4 B. & S. 361. It is the duty of the Commissioners of Police, under 6 & 7 Vict. c. 86, to see to the behavior of persons applying for licenses as conductors of stage carriages. Ex parte Mitcham, cxvii. 585 ; 5 B. & S. 585. Under the Public Health Act, 11 & 12 Vict. c. 63, b. 149, a rate without the seal of the Local Board is invalid. Regina v. Worksop, cxvii. 951 ; 5 B. & S. 951. The same rate may include past and future expenses. Ibid. It should not lump expenses of a different class, but qucere whether this defect would invalidate the rate. Ibid. A railway company is entitled to the protection against responsibility given by s. 7 of 17 & 18 Vict. c. 31, though no complete delivery has been made, if the animal was in the course of delivery. Hodgman v. West Midland Railway Co., cxvii. 173 ; 5 B. & S. 173. Affirmed in Exchequer Chamber, cxviii. 560 ; 6 B. & S. 560. Under 11 & 12 Vict c. 63, s. 89, a mandamus may issue to compel the local board to levy a rate, in aid of a judgment, within six months after it has been obtained, though the action was commenced more than six months after the cause accrued, if the delay was not undue. Worthington v. Hulton, cxviii. 943 ; 6 B. & S. 943. . , * , , . The admission of lunatics not belonging to the county, and of lunatics not paupers, does not take an asylum out of sect. 35 of 16 & 17 Vict. c. 97. Regina v. Fulbourn, cxviii. 451 ; 6 B. & S. 451. That the asylum holds lands for the benefit of the inmates by their labor, though a profit is made, does not take it out of the statute ; and it is not rateable for the profit. Ibid. STATUTES, IV. STOPPAGE IN TKANSITU. 439 IV. Proceedings under Statute. Costs and form of endorsements, under Bills of Exchange Act 1855 (18 & 19 Vict. c. 67), lxxxiv. 1 ; 17 C. B. 1. Under 3 & 4 Wm. 4, c. 74, certificate of acknowledgment of married woman beyond the seas, received and filed, though affidavit did not state place, there being evidence of it in the. documents. In re Partridge, lxxxiv. 18 ; 17 C. B. 18. Action on a street-cleaning contract made by trustees under a local act, is properly brought against the district board, under 18 & 19 Vict. c. 120. Sinnott v. Board of Works, xci. 674 ; 3 C. B. N. S. 674. Summons to putative father, under 7 & 8 Vict. c. 101, need not issue imme- diately upon the application. Potts v. Cumbridge, xcii. 847 ; 8 E. & B. 847. Where summons, under 7 & 8 Vict. c. 101, is issued, but cannot be served because putative father has absconded, and then the justice dies, a summons issued after the twelve months, before another justice, is invalid. Regina v. Pickford. ci. 77 ; 1 B. & S. 77. Order for maintenance, rightly made, of pauper lunatic, having birth-settlement in parish, under 16 & 17 Vict. c. 97, s. 97. Regina v. Newchurch, cxiii. 107 ; 3 B. & S. 107. . _ Under Land Clauses Consolidation Act 1845, 8 & 9 Vict. c. 18, s. 68, where ver- dict and judgment are set aside, another warrant will not issue, but proceedings will go on under old warrant. Horrocks v. Metropolitan Railway Co., cxv. 139 : 19 C. B. N. S. 139. ' A person on whom is imposed a statutory obligation, is liable for injuries caused by the negligent performance of it by a contractor employed by him. Gray v. Pullen, cxvii. 970 ; 5 B & S. 970. STOCKS. Transactions not bona fide sales, but settlement of differences, are illegal, and money derived therefrom not recoverable. Nicholson v. Gooeh, lxxxv. 999 ; 5 E. & B. 999. Money of defaulting member of stock exchange paid over, before adjudication in bankruptcy by assignee appointed under their rules, in settlement of his accounts with other members, not recoverable from such assignee by assignees in bank- ruptcy, though fraudulent preference. Ibid. A stockholder of a joint stock company, under 19 & 20 Vict. c. 47 and 21 & 22 Viet. c. 60, has a right to set off a claim which he has against the company in an action brought by the official liquidators to recover the amount of a call on his shares. Garnet Co. v. Sutton, cxiii. 321 ; 3 B. & S. 321. STOPPAGE IN TRANSITU. Where goods were delivered against orders of vendee, who was on the verge of insolvency, and he Wrote to vendor, returning the draft, expressing willing- ness to return the goods and regret that his solicitor advised against it, and after- ward vendor demanded them, and was referred to the solicitor, it was held no stoppage in transitu. Heinekey v. Earle, xcii. 410; 8 E. & B. 410. Where, by the contract, title was to pass on the transfer of the bill of lading, right of stoppage in transitu may be exercised before the transfer, though the vendor, supposing the transfer to have been made, gave a quasi assent to the payment of freight by the assignee of the vendee, and the delivery of the goods to a carrier employed by him. Sheridan v. The New Quay Co., xciii. 618; 4 C. B. N. S. 618. _ >• Delivery to carriers, who hold as warehousemen awaiting orders for ultimate destination, is complete. Smith v. Hudson, cxviii. 431 ; 6 B, & S. 431. 440 SUBROGATION. SUNDAY. SURETY, I. SUBROGATION. One who, being jointly liable with others, pays the entire judgment, after arrest on ca. sa., is entitled to an assignment of it, under 19 & 20 Vict. c. 97. Batchellor v. Lawrence, xcix. 543 ; 9 C. B. N. S. 543. SUNDAY. Delivery by post, on Sunday, of notice of chargeability, &c, of pauper, under 5 & 6 Wm. 4, c. 76, not void. Regina v. Leominster, ex. 391 ; 2 B. & S. 391. What constitutes traveller, under 11 & 12 Vict. c. 49, s. 1, so as to bring him within exception of act, in furnishing refreshment. Taylor v. Humphries, cxii. 539; 17 C. B. N. S. 539. What constitutes traveller generally, under act prohibiting sale of liquor on Sunday. Am. Ed. note. Ibid. Aiding and abetting, under 11 & 12 Vict. c. 43, s. 5. Am. Ed. note. Ibid. Qucere, whether a verdict may be rendered on Sunday. Winsor v. The Queen, cxviii, 143 ; 6 B. & S. 143. SURETY. I. II. III. IV. Generally. Extent of liability. Co-Sureties. Discharge of. (c) By time given principal. By composition with princi- pal. Other matters. I. Generally Semble, that it cannot be shown by parol that contract of party to promissory note was one of suretyship. Strong v. Foster, lxxxiv. 201 ; 17 C. B. 201. Equitable plea that defendant was surety, and had offered, and was ready to pay all due to obligees upon receiving assignment of securities, is bad. Wode- house v. Farebrother, lxxxv. 277 ; 5 E. & B. 277. One who endorses, as surety, a bill for raising money for a company in which both he and the holder are shareholders, is entitled to notice of dishonor. Maltass v. Siddle, xcv. 494 ; 6 C. B. N. S. 494. Where a bill is accepted for accommodation, at request of a third party, who agrees to be jointly liable for any loss that may be incurred, and time is given to drawer and acceptor at maturity, the third party is not discharged. Way v. Hearn, ciii. 774; 11 C. B. N. S. 774. The undertaking of the third party is an original one and not that of a surety. Ibid. Where the relation of principal and surety exists between two debtors, with knowledge of creditor, such relationship is binding on him, although he has not agreed to it. Greenough v. McClelland, cv. 424 ; 2 E. & E. 424 ; s. c, on appeal, cv. 429 ; 2 E. & E. 429. The rule requiring disclosure of all material circumstances in contracts of insur- ance does not prevail in contracts of guaranty or suretyship. Lee v. Jones, cxii. 482; 17 0. B.N. S. 482. Bankruptcy Act, 24 & 25 Vict. c. 134, s. 154, makes claims of surety of pre- miums of policy of insurance in futuro provable and they will be barred by dis- charge. Saunders v. Best, cxii. 731 ; 17 C. B. N. S._ 731. A surety is omitted in provisions of 24 & 25 Vict. c. 134, s. 192. Mare v. Underbill, cxvi. 566 ; 4 B. & S. 566. SURETY, II —IV. (a). 441 II. Extent of liability. "Where a surety entered into a bond for 1000Z. to secure advances to principal on the faith of a collateral agreement that they should be limited to950Z., and if they exceeded 1000Z. for a month without reduction notice should be given, held a reduction of liability to 950Z. Gordon «. Rae, xcii. 1065 ; 8 E. & B. 1065. In a suit on a promissory note it may be shown by way of equitable defence that deiendant was a surety with knowledge of plaintiff, and that but for the latter s negligence the amourt could have been obtained from the principal. Mutual Loan Fund Association v. Sudlow, xciv. 449 ; 5 0. B. N. S. 449. Where an officer is appointed under statute for a year only, his surety is not liable under subsequent reappointments or subsequent statute making the tenure during pleasure, though the bond be conditioned for the performance of his duties under existing statutes, " and such statutes as might be thereafter passed." Mayor of Cambridge v. Dennis, xcvi. 660 ; E., B. & E. 660. Surety for a single person, not liable for misappropriation of money, by firm of which that person was a member. Montefiore v. Llovd, cix. 203 ; 15 C. B. N. S. 203. Even though the surety knew at the time of entering in the bond that the partnership was about to be formed. Ibid. The surrounding or co-existing circumstances are admissible for the purpose of explaining what might be ambiguous in a bond of suretyship. Ibid. In suit against sureties on administration bond assigned to heir, creditor can- not recover his own debt, but can only sue for the benefit of all interested. Sandrey v. Michell, cxiii. 405 ; 3 B. & S. 405. 20 & 21 Vict. c. 77, only enables creditor to sue in his own name, instead of that of the ordinary, but does not change the law otherwise. Ibid. III. Co-sureties. Where the relationship of surety exists, there is contribution without regard to the form of the instrument. Reynolds v. Wheeler, c. 561 ; 10 C. B. N. S. 561. IV. Discharge of (a) By time given principal. Mere forbearance to principal, without agreement, does not discharge surety. Strong v. Foster, lxxxiv. 201 ; 17 C. B. 201. Good equitable defence, by one maker of promissory note, that he was surety for the other, of which holder had notice at time note was made, and that holder had given principal debtor time, preventing recovery. Pooley v. Harradine, xc. 431 ; 7 E. & B. 431. Semble, that the defence would be good, if holder knew, when he gave time, that defendant was surety. Ibid. One who signs a joint and several accommodation note, payable on demand, as surety, with verbal agreement that payee will demand payment within three years, is discharged from liability in action by payee, by his failure to make the demand, as agreed on. Lawrence v. Walmsley, civ. 799; 12 C. B. N. S. 799. Failure to compel payment of a joint demand note within three years, where defendant signed as surety, with an agreement stamped on note, as witness, " This note is to be paid within three years," does not discharge defendant. Ibid. A transaction which would operate as a discharge of a surety, such as giving time, will not have that effect either in law or equity if the remedy against the surety is reserved. Boaler v. Mayer, cxv. 76; 19 C. B. N. S. 76 ; When a composition deed reserved all remedies against the sureties but recourse to the surety was postponed until the composition should cease to be carried out, which proved to be two years, held that the surety had a good equitable defence. Bailey v. Edwards, cxvi. 761 ; 4 B. & S.761. Qucere, whether to enable a surety to raise a defence at law on the ground that time was given to the principal, it is necessary to show that the original contract was that of creditor and surety. Ibid. Am. Ed. note to s. c, as to effect of giving time to principal and reserving rights as against surety. Ibid. 442 SUKETY, IV. (6), (c). TAX. (6) Br COMPOSITION WITH principal. The acceptor of an accommodation bill is equitably discharged, if the holder, with knowledge of its character, makes an agreement which prevents his suing the drawer. Ewin v. Lancaster, cxviii. 571 ; 6 B. & S. 571 : (c) Other matters. Set-off to principal arising after maturity of note does not discharge surety. Strong v. Foster, lxxxiv. 201 ; 17 C. B. 201. Sureties on the bond of a bailiff discharged where, since it was executed, acts of parliament had changed the court in the amount and nature of its jurisdiction and altered table of fees. Pybus v. Gibb, lxxxviii. 902 ; 6 E. & B. 902. Surety on bond conditioned for performance of duties uiider all laws " here- after to be in force," not relieved by passage of an act which changed the office but did not destroy its identity. Mayor of Dartmouth v. Silly, xc. 97, ; 7 E. & B. 97. A continuing guaranty which the guarantor may determine by notice is dis- charged by bankruptcy. Boyd v. Robins, xciii. 749 ; 4 C. B. N. S. 749. Reversed in Exchequer Chamber, xciv. 597 ; 5 C. B. N. S. 597. Advancing moneys before the times stipulated in the contract discharges the surety. General Steam Nav. Co. v. Bolt, xcv. 550 ; 6 C. B. N. S. 550. Burden of proof that these advances were made with the consent of the surety is on the plaintiff. Ibid. It appearing on the face of a bond to secure an annuity that one of the joint obligors is a surety only, his discharge in bankruptcy is no defence to a claim for subsequent unpaid arrears. "White v. Corbett, xcvi. 1103 ; E., B. & E. 1103. The rights of a company against a surety on a bond for the faithful services of a clerk are not affected by its obtaining a certificate of registration with limited liability. Improved Soap Co. v. Cooper, xcviii. 800 ; 8 C. B. N. S. 800. On a joint and several bond of A. and B. to pay an annuity containing also a joint and several covenant to pay, but reciting that A. is surety for B., A. is surety only, and a discharge in bankruptcy is no bar. White v. Corbett, cii. 692 ; 1 E. & E. 692. A change of a collector of rates, appointed generally for a parish, but assigned to collection of a particular class of rates, to collection of all the rates in a par- ticular district will discharge surety on his bond. Portsea Island Union v. Whil- lier, cv. 755; 2E. & E. 755. When there is concealment amounting to a misrepresentation it is fraudulent as to the surety. Lee v. Jones, cxii. 482 ; 17 C. B. N. S. 482. Affirming s. c, cviii. 386 ; 14 C. B. N, S. 386. Guaranty, to a banker of moneys that may at any time become due, by a firm, is not a continuing guaranty at common law, or under 1 9 & 20 Vict. c. 97, s. 4, if the members of the firm change. Backhouse v. Hall, cxviii. 507 : 6 B. & S. 507. TAX. Sweets or made wines are not excisable liquors within the meaning of 9 Geo. 4, c. 61, s. 18. Regina v. Lancashire, xc. 839 ; 7 E. & B. 839. Land tax on bridge tolls not a parochial rate or assessment. Waterloo Bridge Co. v. Cull, cii. 213 ; 1 E. & E. 213. An inaccuracy in the assessment, being false description added to true descrip- tion, works no prejudice. Ibid. The assessment good though assessors improperly qualified. Ibid. For the purposes of this tax the bed of a river, as far as the middle, belongs to the parish on the adjacent shore. Ibid. An agreement for an increased rent in the event of an imposition of a tax, is not prohibited by 5 & 6 Vict. c. 35. Colbron v. Travers, civ. 181 ; 12 C. B. N. 5. 181. Prohibition against deduction of income tax, in 5 & 6 Vict. c. 35, s. 113, not applicable to devise of rent charged on land of testator. Festing v. Taylor, cxiii. 235 ; 3 B. & S. 235 ; reversing s. c. in Q. B., Ibid. 217. TELEGRAPH. TENANCY IN COMMON. TENDER. 443 TELEGRAPH. Condition that company is not responsible for mistakes in transmission of un- repealed messages, is reasonable, under Electric Tel. Co.'s Act, 1853, 16 & 17 Vict. 203. MacAndrew ». Electric Tel. Co., lxxxiv. 3 ; 17 C. B. 3. Owner of vessel liable for injury to submarine cable where there is negligence. Telegraph Co. v. Dickson, cix. 759 ; 15 C. B. N. S. 759. TENANCY IN COMMON. Tearing down a party wall and rebuilding, so as to destroy its identity, is an ouster. Stedman v. Smith, xcii. 1 ; 8 E. & B. 1 . Under 15 & 16 Vict. c. 76, two tenants in common may recover on a writ stating that some or one of them claim to be entitled. Elliss v. Elliss, xcvi. 81 ; E., B. &E. 81. Joint action on joint demise by tenants in common, their heirs and assigns, according to their several estates on a covenant to repair, necessary. Thompson v. Hakewill, cxv. 713 ; 19 C. B. N. S. 713. TENDER. To an indebitatus count, a plea of tender before suit is good. Smith v. Man- ners, xciv. 632 ; 5 C. B. N. S. 632. There may be tender without costs, after a letter from an attorney. Holmar v. Stevens, xcv. 932; 6 C. B. N. S. 932. Action lies for detaining goods taken under distress, after tender before im- pounding. Loring v. Warburton, xcvi. 507 ; E., B. & E. 507. A claim by an innkeeper for the whole time, when he is entitled to board for only part of time, does not dispense with a tender for what is due. Allen v. Smith, civ. 638 ; 12 C. B. N. S. 638. A tender of rent due and costs, is good, when made within five days after dis- tress is taken and before sale, though after impounding. Johnson v. IJpham, cv. 250; 2. E. &E. 250. A tender to a man left in charge of a distress, with knowledge that he was not authorized to receive the rent, and that person making the distress was conve- niently near, is bad. Boulton v. Reynolds, cv. 369 ; 2 E. & E. 369. Whether a tender of certain shipping documents sufficient, under a contract, a question for the jury. Tamvaco v. Lucas, cxiii. 89 ; 3 B. & S. 89 ; affirming s. c. in Q. B., ci. 185 ; 1 B. & S. 185. It seems, that a tender of rent, after cause of forfeiture of license has occurred, will not prevent determination of license. Ward v. Day, cxvi. 337 ; 4 B. & S. 337. Affirmed in Ex. Ch., cxvii. 359 ; 5 B. & S. 359. 444 TIME. TIME. Between drawer and holder of a check, a presentment at any time within six years, is not unreasonable, unless loss is occasioned by the delay. Laws v. Band, xci. 442; 3 0. B.N. S. 442. Application to the justices to state a case for appeal, under 20 & 21 Vict. c. 43, s. 2, must be made within three days, though the last be Sunday. Peacock v. The Queen, xciii. 264 ; 4 C. B. N. S. 264. An appeal from a judge at chambers cannot be brought after the lapse of a term. Craske ». Smith, xciii. 446 ; 4 C. B. N. S. 446. Where defendant agrees to load a vessel, in the customary manner, he must do it within what would be a reasonable time, under ordinary circumstances. Adams v. Royal Mail Steam Packet Co., xciv. 492; 5 C. B. N. S. 492. Semble, that judgment must be recovered and not simply proceedings be com- menced, within three months, under 18 & 19 Vict. c. 108, s. 14. Regina v. Main- waring, xcvi. 474 ; E., B. & E. 474. Where, by a judge's order, a debt was to be paid by instalments, an offer of one of the instalments, which came due on Sunday, upon Monday, was in time. Morris v. Barrett, xcvii. 139 ; 7 0. B. N. S. 139. What will amount to extension of time for the performance of a contract. Williams v. Wheeler, xcviii. 299; 8 C.B. N. S. 299. The charterer of a vessel directing plaintiff to re-charter, and promising to be responsible for loss, if any, is liable for the difference in freight, if at a less sum, immediately upon the loading. Yeames v. Lindsay, xcix. 885 ; 9 C. B. N. S. 885. A country banker, receiving a check on another country banker, in another town, has, until the next day, to transmit it for presentment. Hare v. Henyt, c. 65; IOC. B.N. S. 65. Question, whether acceptance of a lease, by assignees in bankruptcy, of lessee, is within a reasonable time, is for the jury. Mackley v. Pattenden, ci. 178 ; 1 B. & S. 178. Under 21 & 22 Vict. c. 98, s. 20, it is too late, after two months have elapsed, to question regularity of vote adopting the act. Ex parte Smith, ci. 412 ; 1 B. & S. 412. A check, delivered at 9 p, »,, is, for practicable business purposes, delivered the next day. Firth v. Brooks, ci. 981 ; 1 B. & S. 981. A lease dated in 1851 to hold from 1849 for the term of fourteen years thence next ensuing, with a provision that it might be determined at the expiration of the first seven years by notice, held to be determinable in 1856. Bird v. Baker, cii. 12 ; 1 E. & E. 12. Notice of appeal under s. 22 of 18 & 19 Vict. c. 121, must be given within fourteen days after notice of assessment. Regina v. Middleton, cii. 98 ; 1 E. & E. 98. Sunday is not to be excluded from computation of time within which a recog- nisance is to be entered, under 18 & 19 Vict. c. 121. Ex parte Simpkin, cv. 392 ; 2 E. & E. 392. Time within which an application to strike an attorney from the rolls should be made is in the discretion of the court. In re Thompson, cvi. 288 ; 13 C. B. N. S. 288. Contract to indemnify against a bill not invalidated because bill bears a dif- ferent date from that named. Way v. Hearn, cvi. 292 ; 13 C. B. N. S. 292. When the last day of a period fixed by a statute for an act to be done by the court falls on a holiday, the party has until the next practicable day. Hughes v. Griffiths, cvi. 324 ; 13 0. B. N. S. 324. In a specially endorsed writ, under Common Law Procedure Act 1852, when time for appearance expired on Good Friday t defendant had until the following Wednesday to enter an appearance. Mumford v. Hitchcocks, cviii. 361 ; 14 C. B. N. S. 361. Broker can recover for money paid at the request of defendant for losses on "time bargains" for stocks. Rosewarne v. Billing, cix. 316 ; 15 C. B. N. S. 316. When delivery of notice of order of removal, made in the ordinary course, by TIME. TITHE, I., II! 445 post on Sunday would be good, under 4 & 5 Win. 4, c. 76, s. 79, and 29 Car. 2, c. 7, s. 6. Regina v. Leominster, ex. 391 ; 2 B. & S. 391. What is effective time for giving notice of appeal against removal order to Quarter Sessions under practice of the courts and 11 & 12 Viot. o. 31, s. 4. Re- gina v. Sussex, ex. 664 ; 2 B. & S. 664. Reversed, Exchequer Chamber, cxvi. 966 ; 4 B. & S. 966. Occupiers assessed with rate after payment made more than six months before cannot recover it back, under 11 & 12 Vict. c. 63, and 17 & 18 Vict. c. 101, ss. 4 & 131. Burland v. Board of Health, cxiii. 271 ; 3 B. & S. 271. Under 11 & 12 Viot. c. 43, s. 11, Board of Health has six months from the three months limited by 21 & 22 Vict. c. 98, s. 63, within which rate can be dis- puted to take proceedings. Jacomb v. Dodgson, cxiii. 461 ; 3 B. & S. 461. In the absence of an express contract carrier must carry goods by the usual route and deliver them within a reasonable time. Hales v. The Railway Co., cxvi. 66 ; 4 B. & S. 66. , Under a written agreement upon an ordinary voyage policy to insure a ves- sel " during thirty days' stay in her last port of discharge," the time begins to run at the expiration of twenty-four hours after her arrival. Insurance Co. v. Titherington, cxvii. 765 ; 5 B. & S. 765. Time at which the first meeting of a highway board, after the formation of a district, shall be held, under 27 & 28 Vict. c. 101, s. 12. Regina v. Lindsey, cxviii. 892 ; 6 B. & S. 892. TITHE. I. Generally. II. Rent charge under commutation acts. I. Generally. Where an act required the Quarter Sessions to appoint a person not interested in the tithes, to value the lands, the valuation is not void, though the valuer be interested. L. & C. Railway Co. v. Heaton, xcii. 952 ; 8 E. & B. 952. Semble, that a shareholder in a railway passing through the township, is not interested in the tithes. Ibid. Substitution of an annual payment for tithes, by 7 Geo. 4, c. 54, does not pre- vent the legal annexation of a portion of such payment, under 1 & 2 Wm. 4, c. 45, s. 21. Hughes v. Denton, xciv. 765 ; 5 C. B. N. S. 765. 19 & 20 Vict. c. 104, s. 14, makes a district church a separate and distinct parish only for ecclesiastical purposes, and does not prevent its receiving such annexation. Ibid. Under sect. 21 of 1 & 2 Wm. 4, c. 45, and sect. 3 of 7 Geo. 4, c. 54, a warrant may issue for arrears of such annexed portion. Ibid. An incumbent, owner of a tithe rent-charge, who voluntarily grants, to the minister of a new district parish, a rent-charge, charged on the tithe rent-charge, is liable to poor rate on the whole amount. Lawrence v. Tolleshunt Knights, ex. 533; 2B. &S. 533. II. Rent- charge under commutation acts. How the owner of a tithe commutation rent-charge is rateable to the poor, and to what deductions entitled. Goodchild v. The Trustees, xcvi. 1 ; E., B. & E. 1. Where a clergyman may be compelled to appoint a curate, or where he ap- points one through a proper sense of religious obligation, the curate's salary should be deducted, in assessing to the poor rate, the tithe commutation rent- charge. Williams ». Overseers of Llangeinwen, ci. 699 ; 1 B. & S. 669. An incumbent of two benefices, being thereby compelled to employ a curate, is not entitled to deduct the curate's salary from assessments to the poor of the tithe commutation. Williams v. Overseers of Burmington, ci. 709 ; 1 B. & S. 709. A private act of parliament, providing for a payment of rents in lieu of certain 446 TITHE, II. TITLE. TOLL. tithes, with a reservation to the rector of an existing modus, does not commute or extinguish the modus, under the Tithe Commutation Act, 6 & 7 Wm. 4, c. 71. Re Wintringham Tithes, ciii. 879 ; 11 C. B. N. S. 879. The extinguishment of the tithes not included in the modus, not being a com- plete extinguishment, would not exempt the lands from jurisdiction conferred by Tithe Commutation Act. Ibid. Where a rent-charge is leased, with covenant to pay an annual sum to a curate, to whom such rent had been granted and charged on tithe rent, the annual rent paid curate is part of rent of lessee. Regina v. Groves, cv. 794 ; 2 E. & E. 794. Corn rent to vicar, charged on land in lieu of tithes, under Local Enclosure Act, 34 Geo. 3, c. 40, not liable to poor rate. Hackett v. Long Bennington, cxi. 38 ; 16 C. B. N. S. 38. Such rent is not a tithe commutation rent-charge. Ibid. Poor rate of rector to be assessed upon whole income, not upon tithe commu- tation rent-charge alone, under 6 & 7 Wm, 4, c. 96. Scriven with Tentergate v. Faucett, cxiii. 797 ; 3 B. & S. 797. Tithe Commutation Act,l6 & 7 "Wm. 4, c. 71, s. 42. Trimmer v. Walsh, cxvi. 18, 40 ; 4 B. & S. 18, 40. Vicar not entitled, under said act, to extraordinary rent-charge for waste lands, at time of commutation, subsequently cultivated as hop lands. Ibid. TITLE. On a sale of property, " land tax redeemed," where one of the conditions was that every deed should be conclusive evidence of the facts recited in it, a recital of a previous sale "free from land tax," is not sufficient. Buchanan v. Popple- ton, xciii. 20 ; 4 C. B. N. S. 20. A title depending upon a question of fact not reasonably certain, is not good and sufficient as between vendor and purchaser. Simmons v. Heseltine, xciv. 554 ; 5 C. B. N. S. 554. There is no presumption of ownership arising out of the use of a way to a close, situated between two properties. Smith v. Howden, cviii. 398 ; 14 C. B. N. S. 398. In the absence of other evidence, it would belong ad medium filum vice. Ibid. TOLL. Quayage payable to borough from time immemorial for goods landed on ground part owned by corporation and part by stranger is toll in gross. Lewis v. Swansea, lxxxv. 508 ; 5 E. & B. 508. Cart carrying street sweepings out of Bristol to be sold as manure exempt from toll, under 59 Geo. 3, c. 95 and 5 & 6 Wm. 4, c. 18. Regina v. Freke, lxxxv. 944 ; 5 E. & B. 944. Carriage crossing turnpike and passing over one hundred yards along another road, under same trust, exempt from toll, under 3 Geo. 4, c. 126. Gerrard v. Parker, xc. 498 ; 7 E. & B. 498. A steam-engine used with a threshing-machine, though separate from it, is an implement of husbandry exempt from toll, under 3 Geo. 4, c. 126 and 14 & 15 Vict. c. 38. Regina o. Malty, xcii._712 ; 8 E. & B. 712. Under 10 Geo. 4, c. 133, only a single toll of 4|d. can be charged for all the toll-gates on the road. Johnson v. Cocksedge, xciv. 286 ; 5 C. B. N. S. 286. Any carriage bona fide employed in conveying volunteer infantry to or bring- ing them back from a place of military exercise, is exempt from turnpike tolls, under 3 Geo. 4, c. 126, s. 32. Stephenson v. Taylor, ci. 95 ; 1 B. & S. 95. TOLL. 447 Under 20 Geo. 2, o. 22 and 20 Geo. 3, o. 32, authorizing an individual to build a public bridge, and in consideration of his expense in building and repairing to take the tolls, he is bound to keep in repair as long as he takes the tolls. Nich- oll v. Allen, ci. 916 ; 1 B. & S. 916. A clergyman requested by the wardens to perform temporary duty and au- thorized only by a letter from the bishop's secretary, is a curate, under 3 Geo. 4, c. 126, s. 32, and in going to his duty is exempt from tolls at a gate in another parish. Dickinson v. Temple, cii. 34 ; 1 E. & E. 34. Land tax on bridge tolls not a parochial rate or assessment. Waterloo Bridge Co. v. Cull, cii. 213 ; 1 E. & E. 213. For the purposes of this tax the bed of a river as far as the middle belongs to the parish on the adjacent shore. Ibid. There may be a grant by the crown of a toll for the anchorage of vessels, though below low-water mark. Such a toll may be enforced by distress. Free Fishers v. Gann, ciii. 388 ; 1 1 C. B. N. S. 388. A carriage and horses belonging to the queen, driven by the queen's coachman, and used by a member of the queen's household, or his family, with the queen's permission, but not upon the queen's service, are exempt from turnpike tolls. Westover o. Perkins, cv. 57 ; 2 E. & E. 57. The anchorage and beaconage tolls, which belonged to the Bishop of Durham, for using the port of Sunderland, are tolls connected with the use of the soil of the port. Durham v. Bishop wearmouth, cv. 230 ; 2 E. & E. 230. Quaere, whether trustee of tolls made nominal defendant liable for costs, under 3 Geo. 4, c. 126, s. 74. Cobbett v. "Wheeler, cvii. 358 ; 3 E. & E. 358. Company, empowered by statute to take tolls, can remit them, or any portion of them, at pleasure. Market Co. v. Steamboat Co., cvii. 365; 3 E. & E. 365. Unless there is an express enactment to the contrary. Ibid. Though there be an intent to take the cattle beyond, if they are going from pasture to pasture within two miles, they are exempt from tolls, under 1 & 2 Wm. 4, c. 25, s. 1. Warmby v. Deakin, cviii. 124 ; 14 C. B. N. S. 124. Right of distress for tolls, given by statute, must be strictly pursued. North ». L. & S. W. Railway Co., cviii. 132 ; 14 C. B. N. S. 132. In a demise of tolls, under 3 Geo. 4, c. 126, s. 55, the waiver by trustees of stipulation, requiring sureties, does not invalidate the lease. Markham v. Stan- ford, cviii. 376 ; 14 C. B. N. S. 376. A proportionally smaller charge per mile, for a greater distance, does not con- flict with 8 & 9 Vict. c. 28, s. 67, requiring equality of charges. Strick v. Swan- sea Canal Co., cxi. 245 ; 16 C. B. N. S. 245. Nor does it where there is a large guaranteed minimum toll. Ibid. Exemption of manure carts from toll, under statute. Richens v. Wiggins, cxiii. 953 ; 3 B. & S. 953. A carriage, licensed for the conveyance of goods, is not liable for tolls, under Local Act, 10 Geo. 4, c. 110, s. 9, as a stage-coach, though occasionally carrying passengers. Eatwell ». Richmond, cxiv. 364; 18 C. B. N. S. 364. A covered caravan, occasionally carrying passengers, held liable to return toll as a stage-coach, conveying goods for pay or reward, within local act, 6 Geo. 4, c. 143, s. 11. Comley v. Carpenter, cxiv. 378 ; 18 C. B. N. S. 378. Under 36 Geo. 3, c. 67, company for improving navigation of river entitled to tolls, where part of the work not completed. Navigation Co. ». Wagstaffe, cxvi. 288 ; 4 B. & S. 288. What tolls can be taken, under Tiverton Turnpike Act, 24 Vict. c. 19. James v. Dickenson, cviii. 416 ; 14 C. B. N. S. 416. Bed of navigable river, where there is tide of estuaries or arms of the sea, be- longs to the crown, and, if granted away, is subject to right of navigation, so that grantee cannot claim tolls for anchorage. Free Fishers v. Gann, cxv. 803 ; 19 C. B. N. S. 803 ; reversing s. c. in C. P., ciii. 387 ; 11 C. B. N. S. 387 ; and in Ex. Ch., cvi. 853 ; 13 C. B. N. S. 853. The crown is not subject to tolls imposed by statute, unless specially named. Weymouth v. Nugent, cxviii. 22 ; 6 B. & S. 22. What is a " bridge," within s. 72 of 27 & 28 Vict. c. 3. Ward v. Gray, cxviii. 345 ; 6 B. & S. 345. 448 TORT. TRADEMARK. TRESPASS, I., II. TORT. Where a railway company had a lamp room, with the door unlocked, near the urinal room, and a passenger, unable to read the inscriptions, entered the wrong room, and was injured by falling, the company was held not liable. Toomey v. Railway Co., xci. 146 ; 3 C. B. N. S. 146. Infant cannot be made liable in action of tort, where the claim is substantially founded on contract. Burnard v. Haggis, cviii. 45 ; 14 C. B. N. S. 45. Husband not liable for torts of wife during coverture, after divorce. Capel v. !Powell, cxii. 743 ; 17 C. B. N. S. 743. Where a tort arises out of a contract, only the party to the contract can sue. Discussed generally. Am. Ed. note. Alton v. Midland Railway Co., cxv. 213 ; 19 C. B. N. S. 213. TRADEMARK. Declaration alleging that plaintiff had established " Bank of London," and afterward defendant wrongfully and fraudulently established another " Bank of London," but which omitted to state that plaintiff carried on business as banker, insufficient. Lawson v. Bank of London, lxxxvi. 84 ; 18 C. B. 84. Qucere, can action of this kind be brought against corporation. Ibid. Inducing one by fraud to violate trademark of another gives good cause of action. Dixon v. Faucus, cvii. 537 ; 3 E. & E. 537. And costs of resulting proceedings in chancery can be recovered. Ibid. How far trademark right of property and subject to injunction. Ibid., in Am. Ed. notes. TRESPASS. I. For what Trespass lies. (a) Against. II. For what it does not lie. (6) Not. III. By whom it is and is not main- V. Justification. tainable. VI. Pleadings and evidence. IV. Against whom it is and is not VII. Damages. maintainable. VIII. Costs. I. For what Trespass lies. Lies for distraining tools of trade not in use, there being sufficient other dis- trainable goods on the premises. Nargett v. Nias, cii. 439 ; 1 E. & E. 439. For interfering with wall erected by undertenant, where there is no covenant. L. & S. W. Railway Co. v. Webb, cix. 450 ; 15 C. B. N. S. 450. Will lie for breaking window to effect entry and then making distress. Attack v. Bramwell, cxiii. 520 ; 3 B. & S. 520. For seizing and selling improperly under bill of sale. Toms v. Wilson, cxvi. 442, 455 ; 4 B. & S. 442, 455. II. For what it does not lie. Does not, under sect. 83 of 18 & 19 Vict. e. 122, lie against a landlord owning the adjoining house, who enters and rebuilds the party-wall, without notice to the tenant or surveyor. Wheeler v. Gray, xciii. 584; 4 C. B. N. S. 584. Affirmed in Exchequer Chamber, xcv. 606 ; 6 C.B. N. S. 606. Not for regaining possession by force, by one holding rightfully, under dis- tress, who has been removed by force, unless there has been abandonment of distress. Eldridge v. Stacey, cix. 458 ; 15 C. B. N. S. 458. TEESPASS, II.— VI. 449 Not for climbing over fence, to gain access by opon door, for purpose of making distress. Ibid. A trespass in pursuit or search of game, under 1 & 2 Wm, 4, c. 32, s. 30, means " live game." Kenyon v. Hart, cxviii. 248 ; 6 B. & S. 248. III. By -whom it is and is not maintainable. By one tenant in common against another, who has torn down a party-wall and rebuilt so as to destroy its identity. Stedinan v. Smith, xcii. 1 ; 8 E. & B. 1. Where a plaintiff in ejectment, after verdict in his favor, assigns produce growing on the close, and upon subsequently obtaining possession, under a habere facias, gives his assignee possession, the possession of the assignee relates back to the time of the accruing of his right, and he may maintain trespass. Anderson v. Eadcliffe, xcvi. 806 ; E., B. & E. 806. Not by assignee of a term of years, without actual entry. Harrison v. Black- burn, cxii. 678 ; 17 C. B. N. S. 678. IV. Against whom it is and is not maintainable. (a) Against. Landlord, for the acts of an agent who exceeded his authority and seized goods not distrainable. Gauntlett v. King, xci. 59 ; 3 C. B. N. S. 59. 11 & 12 Vict. c. 44, does not protect a magistrate who, without jurisdiction, issues a distress warrant for a poor rate. Pedley v. Davis, c. 492 ; 10 C. B. N. S. 492. But the collector who obeys the warrant is protected by 24 Geo. 2, c. 44, s. 6. Ibid. Remedy for tortious acts of officer is against him individually, not against the crown by petition of right. Tobin v. The Queen, cxi. 310 ; 16 C. B. N. S. 310. (&) Not. Not against one directing a constable to arrest, where latter had a right to do so. Derecourt v. Corbishley, lxxxv. 188 ; 5 E. & B. 188. A landlord, having demanded the keys of one who at most was a tenant at will, and having written that he did not intend to give possession at all, is not liable for damages for expelling him after a refusal to go. Pollen v. Brewer, xcvii. 371 ; 7 C. B. N. S. 371. Against husband, after divorce, for torts of wife during coverture. Capel i>. Powell, cxii. 743 ; 17 C. B. N. S. 743. V. Justification. One having a right to land at a quay on a navigable river may pass over a dummy permanently moored so as to obstruct the approach. Eastern Counties Railroad Co. v. Dorling, xciv. 821 ; 5 C. B. N. S. 821. No justification for tearing down house, under 18 & 19 Vict. c. 120, s. 76, for noncompliance with terms of act, unless party had opportunity to be heard. Cooper v. Board of Works, cviii. 180 ; 14 C. B. N. S. 180. Pleas by several justifying by right of common, setting up each other's titles as well as their own, allowed. Church v. Wright, cix. 750 ; 15 C. B. N. S. 750. Unless time be given for payment and authority of agent making demand shown, the fact that payment is to be " immediately on demand," is no justifica- tion. Toms v. Wilson, cxvi. 442, 455 ; 4 B. & S. 442, 455. VI. Pleadings and evidence. Where in trespass quare clausum fregit, it appeared plaintiff's land was in possession of a tenant, amendment turning count into one for injury to reversion permitted. May v. Fqotner, lxxxv. 505 ; 5 E. & B. 505. Count setting forth that plaintiff was tenant to defendant, that defendant caused to be served a notice to quit the premises, which was informal, and caused to be issued a warrant whereby plaintiff was ejected, is a good count in trespass. Delaney v. Pox, lxxxvii. 166 ; 1 C. B. N. S. 166. Count for breaking and entering rooms of husband can be joined with a count Vol. III.— 29 450 TRESPASS, VI.— VIII. TROVER, I., II. by husband and wife for imprisonment of wife, under Common Law Procedure Act 1852, s. 40. Morris v. Moore, cxv. 359 ; 19 C. B. N. S. 359. VII. Damages. In trespass for distress by breaking window to effect entry, full value of goods can be recovered and rent cannot be deducted. Attack v. Bramwell, cxiii. 520 ; 3 B. & S. 520. VIII. Costs. Court will not stay action because costs in preceding action for same trespass not paid. Danvers v. Morgan, lxxxiv. 530 ; 17 C. B. 530. Semble, that court would interfere in this way where second action brought oppressively and vexatiously. Ibid. TROVER. I. "When and for what maintainable. VI. Conversion. II. When and for what not maintain- VII. Pleading, able. VIII. Damages. III. By whom maintainable. IX. Effect of judgment on title to IV. Against whom maintainable. property. V. Against whom not maintainable. I. When and for what maintainable. Owner of stolen property may bring trover against third party in possession, before prosecuting felon. Lee v. Bayes, lxxxvi. 599 ; 18 C. B. 599. Where plaintiffs bought goods on their own credit for A., and at his request delivered them on board vessel, taking the mate's receipt, and A., without redeem- ing the receipt, procured from master, without producing it, bills of lading, which he transferred to bona fide endorsee, to whom master, against order of plaintiffs, delivered the goods, the master and owner were held liable. Schuster v. McKel- lar, xc. 704 ; 7 E. & B. 704. For a policy of life insurance. Watson ». McLean, xcvi. 75 ; E., B. & E. 75. Will not lie against an assignee who has seized goods which had been pledged to his insolvent, but of which he had not received possession. Martin v. Keid, ciii. 730; 11 C. B. N. S. 730. The assignee of the owner cannot maintain trover for certificates of stock in gas company, against the pledgee who has loaned money on the security of the pledge. Broadbent v. Varley, civ. 214 ; 12 C. B. N. S. 214. For goods obtained by creditor, with notice of act of bankruptcy. Topping v. Keysell, cxi. 258 ; 16 C. B. N. S. 258. For looms in defendant's mill belonging to plaintiff. Edmondson v. Nuttall, cxii. 280 ; 17 C. B. N. S. 280. II. When and for what not maintainable. Not for «, draft on defendant to the order of plaintiff, which, in an unsealed note addressed to the plaintiff, was enclosed to the defendant, under circumstances showing that, in an event which had occurred, they were not to be delivered. De Lizardi v. Pennell, lxxxviii. 742 ; 6 E. & B. 742. Will not lie against owner of land who has seized game which has been killed thereon and carried away. Blades v. Higgs, civ. 501 ; 12 C. B. N. S. 501. Affirmed in Ex. Ch., cvi. 844 : 13 C. B. N. S. 844 : and in House of Lords, Ibid. 866. Where there is a charge for money advanced upon a lot of timber, trover will not lie by assignee of bankrupt owner. Lanston v. Waring, cxiv. 315 ; 18 C. B. N. S. 315. 6 TROVER, III.— VI. 451 III. By whom maintainable. Where A., creditor of B., bought goods at B.'s auction, and took them away without payment or consent, and B.'s assignees in bankruptcy afterward demand the amount, held that they could recover in trover. Holmes v. Tutton, lxxxv. 65 ; 5 E. & B. 65. By wrongdoer in possession of goods belonging to stranger against wrongdoer who has taken them from him. Jefferies v. Great Western Railway Co., lxxxv. 802 ; 5 E. & B. 802. One having immediate right of possession to goods. Edmondson v. Nuttall, cxii. 280 ; 17 C. B. N. S. 280. Oae having bare possession of goods can maintain an action against a wrong- doer. Buckley v. Gross, cxiii. 566 ; 3 B. & S. 566. In an action by the donee of a wife for the conversion of chattels, it is not competent for the defendant to set up the title of the husband. Bourne v. Fos- brooke, cxiv. 515 ; 18 C. B. N. S. 515. IV. Against whom maintainable. By assignees against one who under a warrant of attorney, given in contem- plation of insolvency within three months before imprisonment, enters judgment and sells goods before insolvency. Billiter v. Young, lxxxviii. 1 ; 6 E. & B. 1. Reversed in H. of L. cvii. 736 ; 3 E. & E. 736. Against master and owner of a ship chartered for a lump sum to third parties, who put it up as a general ship, the owner appointing master and crew, where master, under directions of owner, refused to deliver goods on demand. Schus- ter v. McKellar. xc. 704 ; 7 E. & B. 704. Against a railway company incorporated by 6 & 7 Wm. 4, c. 75, which re- quired a passenger to take charge of his own luggage, and on his refusal, placed it among lost luggage and refused delivery without a charge. Munster v. S. E. Railway Co., xciii. 676 ; 4 C. B. N. S. 676. Against a creditor obtaining goods with notice of act of bankruptcy. Topping v. Keysell, cxi. 258 ; 16 C. B. N. S. 258. V. Against whom not maintainable. Where goods have been taken into custody from one having bare possession, and sold under the provisions of 2 & 3 Vict. c. 71, ss. 29, 30, no action will lie by such person against the purchaser. Buckley v. Gross, cxiii. 566 ; 3 B. & S. 566. A fortiori, if the person taking possession of goods did so wrongfully. Ibid. Will not lie by the assignee in bankruptcy against one who before bankruptcy proceedings received a warrant of attorney on which judgment was entered and sold the goods under an execution. Young v. Billiter, cvii. 736 ; 3 E. & E. 736 ; reversing lxxxviii. 1 ; 6 E. & B. 1. VI. Conversion. Where A., the keeper of a horse repository, in presence of B., who had bona fide bought a stolen horse and sent it to him, refused to deliver to the owner, it is a conversion. Lee v. Bayes, lxxxvi. 599 ; 18 C. B. 599. Vendor having put part of a heap of barley partially paid for, into the sacks of the vendee, and having after bankruptcy, poured the contents back into the heap, it is a conversion by the assignee to remove it. Aldridge v. Johnson, xc. 885 ; 7 E. & B. 885. Where a surveyor having demolished a building, under 18 & 19 Vict, c 120, detains the materials in the parish stoneyard as a security for the expenses, it is a conversion. Tear ti. Freebody, xciii. 228 ; 4 C. B. N. S. 228. A lien is waived by the party's asserting a right to detain the chattel on another ground, without mentioning the lien. Weeks v. Goode, xcv. 367 ; 6 C. B. N. S. 367. Where the vicar, claiming a lien on plaintiff's property, kept the key of the church with the door locked and prevented plaintiffs entrance to obtain it, it is a conversion. Walker v. Clyde, c. 381 ; 10 C. B. N. S. 381. Where goods pledged by delivery of dock warrant are sold and dock warranty 452 TROVER, VI.— IX. TRUST AND TRUSTEES, I. delivered to purchaser on day for redemption, there is a conversion. Johnson v. Stear, cix. 330; 15 C. B. N. S. 330. Withholding goods and then levying on and selling them by execution, a wrongful conversion. Edmondson v. Nuttall, cxii. 280 ; 17 C. B. N. S. 280. Sale of goods, under 2 & 3 Vict. c. 71, ss. 29, 30, as against one having bare possession, no conversion. Buckley v. Gross, cxiii. 566 ; 3 B. & S. 566. Where goods should be retained by master of vessel upon notice, it is conver- sion not to do so. Falk v. Fletcher, cxiv. 403 ; 18 C. B. N. S. 403. VII. Pleading. Under rule 1 & 2 of Hil. Term 1853 (Ixxvi. 87 ; 13 C. B. 87), a count in detinue and a count in trover cannot be joined without leave obtained from a judge at chambers. Mockford v. Taylor, cxv. 209 ; 19 C. B. N. S. 209. VIII. Damages. Damages in trover for a policy of life insurance is the amount obtained on the policy. Watson v. McLean, xcvi. 75 ; E., B. & E. 75. When goods are converted by pledgee before time for redemption, measure of damages is actual loss of pledgor only. Johnson v. Stear, cix. 330 : 15 C. B. N. S. 330. In such case interest of defendant in pledge is to be taken into account. Ibid. But contra, per Williams, J., that value of thing converted is measure of damages. Ibid. Doctrine in the United States considered. Am. Ed. note. Ibid. Where goods are wrongfully kept, and subsequently taken in execution by wrongful holder, full value of goods is measure of damages. Edmondson v. Nuttall, cxii. 280 ; 17 C. B. N. S". 2S0. The defence cannot give the facts as above in mitigation of damages. Ibid. Measure of damages in unlawful conversion of goods when delivery has not been consummated and master of vessel is notified to retain them. Falk v. Fletcher, cxiv. 403 ; 18 C. B. N. S. 403. IX. Effect of judgment on title to the property. Upon payment of the damages title is changed. Ed. note (a). Edmondson v. Nuttall, cxii. 280 ; 17 C. B. N. S. 280. TRUST AND TRUSTEES. I. Estate of. II. Bights and obligations generally. I. Estate of. Deed creating onerous trusts, vests estate without assent of trustee, subject to a right to divest. Siggers it. Evans, lxxxv. 367 ; 5 E. & B. 367. Assignment for benefit of creditors not revocable before trust created, if assignee a creditor. Ibid. To trustees and their heirs, for the life of A., &c, but on the further trust that out of the devised premises they reimburse themselves for the charges and ex- penses of carrying out the trusts, gives a fee to the trustees. Poad v. Watson, lxxxviii. 606 ; 6 E. & B. 606. Construction of a shifting use, and the contingency upon which it takes effect. Micklethwait v. Micklethwait, xciii. 790 ; 4 C. B. N. S. 790. Devise of " securities for money, debts on mortgage, &c," subject to the payment of debts of testator to persons also appointed executors, conveys the fee in the mortgaged premises. Kippen v. Priest, cvi. 308 ; 13 C. B. N. S. 308. Devise upon express condition to pay legacies within a year, held, upon con- struction of a will, to create a trust for that purpose, devisee taking legal estate. Wright v. Wilkin, ex. 232; 2 B. & S. 232. TRUST AND TRUSTEES, II. TURNPIKE. 453 II. Rights and obligations generally. Trustee stating an account with his cestui que trust, which included a personal item, is personally liable for the whole. Topham v. Morecraft, xcii. 972 ; 8 E. & B. 972. In an action by a landlord against a tenant, the landlord being also trustee for the tenant with respect to the rent, evidence that the landlord permitted him to receive the rent from the undertenants, saying he might as well keep it, does not amount to payment. Dollen v. Batt, xciii. 760 ; 4 C. B. N. S. 760. It seems, that a trustee, without word " assigns," with power of sale, cannot devise title so as to pass power to devisee. Stevens v. Austen, cvii. 685 ; 3 E. & B. 685. Qucere. See remarks by Blackburn, J. Ibid. 700. Where a trustee sells for a grossly inadequate price, vendee takes with notice of breach of trust. Ibid. And a subsequent vendee, being affected with 6uch notice, can refuse to com- plete the contract. Ibid. When lessee of manor, in receipt of rents and profits, will not be presumed to be agent for trustees of lease. Dean v. Duke of Buckingham, cxii. 391 ; 17 C. B. N. S. 391. Bill of sale of goods, registered under 17 & 18 Vict. c. 36, s. 2, need not con- tain a statement of any trust, unless it affect its operation between grantor and grantee. Robinson v. Collingwood, cxii. 777 ; 17 C. B. N. S. 777. Premises held in trust for purposes of a laudable, but strictly private, charity are rateable to the poor, llegina v. Stapleton, cxvi. 629 ; 4 B. & S. 629. TURNPIKE. Under 9 Geo. 4, c. 77, the power to build toll-houses, &c, along sides of the road, is limited to strips between road and enclosures over which public has an easement. Beckett v. Upton, lxxxv. 629 ; 5 E. & B. 629. Surveyor of highways not bound to repair. Regina v. Trafford, lxxxv. 967 ; 5 E. & B. 967. Provisional order of board of health, extending Public Health Act to district in which is a turnpike, incorporating s. 50 of Towns Improvement Clauses Act, which forbids trustees of turnpikes from levying toll, and confirmed by act so far as authorized by Public Health Act, is invalid. Clayton ». Fenwick, lxxxviii. 114; 6E. &B. 114. Where forbidden to erect gate within a certain distance of a town, the distance is measured by a straight line on a horizontal plane. Jewel v. Stead, lxxxviii. 350 ; 6 E. & B. 350. Carriage crossing a turnpike and passing over one hundred yards along an- other road, under same trust, exempt from toll, under 3 Geo. 4, c. 126. Gerrard v. Parker, xc. 498 ; 7 E. & B. 498. Using the pike for eighty -six yards and then turning off to avoid the tolls does not render a man liable to the penalty, under 3 Geo. 4, c. 126, s. 41. Veitch v. Trustees of Exeter Roads, xcii." 986 ; 8 E. & B. 986. Distinct users cannot be tacked together to make the hundred yards. Ibid. Prima facie one who is lord of the manor and owner of the adjacent lands on both sides of a turnpike is owner of the soil of the road. M. of Salisbury v. G. N. Railway Co., xciv. 174 ; 5 C. B. N. S. 174. There is nothing in 8 & 9 Vict. c. 20 and 3 Geo. 4, c. 126, affecting the owner- ship of the soil in an old turnpike road when a new one has been substituted by a railway company. Ibid. A deed describing the exact contents of lots on opposite sides of a turnpike, without mentioning the soil of the road, both parties supposing the title to be vested in the trustees, does not convey the fee in the road. Ibid. Under 10 Geo. 4, c. 133, only a single toll of 4J& can be charged for all the toll gates on the road. Johnson v. Cocksedge, xciv. 286 ; 5 C. B. N. S. 286. 454 TURNPIKE. UNIVERSITY. Trustees of a turnpike company are liable for doing their work so negligently as to cause injury. WhitehouBe v. Fellowes, xcix. 9U1 ; 9 C. B. N. S. 901. 3 Geo. 4, c. 126, does not require that suit must be brought within three months from the commencement of a continuing injury. Ibid. Any carriage bona fide employed in conveying volunteer infantry to or bring- ing them back from a place of military exercise, is exempt from toll, under 3 Geo. 4, c. 126, s. 32. Stepiienson v. Taylor, ci. 95 ; 1 B. & S. 95. 4 & 5 Vict. c. 59, applies to turnpike roads not in existence at the time of its passage. Sunk Island Turnpike v. Patrington, ci. 747 ; 1 B. & S. 747. A turnpike trust is within the act, though the funds be derived from other sources as well as from tolls. Ibid. A clergyman requested by the wardens to perform temporary duty, and autho- rized only by a letter from the bishop's secretary, is a curate, under 3 Geo. 4, c. 126, s. 32, and in going to his duty is exempt from tolls at a gate in another parish. Dickinson v. Temple, cii. 34 ; IE. IE. 34. 4 Geo. 4, c. 95, s. 78, authorizes two turnpike companies who have a portion of road in common to agree that one shall repair and the other pay toward expense. Swinburne v. Robinson, cii. 80 ; 1 E. & B. 80. The term " taxed cart" in 1 & 2 Geo. 4, c. 17, does not mean a particular form of cart, but any cart that is taxed. Purdy v. Smith, cii. 511 ; 1 E. & E. 511. An agreement by a farmer of tolls compounding them at a certain rate is valid. Stott v. Clegg, cvi. 619 ; 13 C. B. N. S. 619. : Clauses of exemption from toll to be construed liberally in favor of agriculture. Clements v. Smith, cvii. 238 ; 3 E. & E. 238. What is fodder for cattle exempt from toll, withm General lurnpike Act, 6 Geo. 4, c. 126. Ibid. What constitutes turnpike so as to allow highway rate to be taken for repairs, under 4 & 5 Vict. c. 59. Roberts v. Roberts, cxiii. 183; 3 B. & S. 183. What not wheeled carriage within Turnpike Act, 3 Geo. 4, c. 126, s. 121. Radnorshire C. R. Board v. Evans, cxiii. 400 ; 3 B. & S. 400. _ Exemption of mam -e carts from toll under statute. Richens v. Wiggins, cxiii. 953 : 3 B. & S. 953. . Tolls fixed by 3 Geo. 4, c. 126, limited by local act fixing progressive charges. James v. Dickenson, cviii. 416 ; 14 C. B. N. S. 416. Toll for beasts going to and from pasture, not demandable, under 1 & 2 Wm. 4, c. 25. Warmby v. Deaken, 124 ; 14 C. B. N. S. 124. UNIVERSITY. Statute 21 & 22 Vict. c. 99, s. 3, enacts that one member of " the General Council of Medical Education, &c," shall be chosen by the "University of London." This right vested in the senate of the university and not in the whole body incorporated as the university by the charter. Regina v. Storrar, cv. 133 ; 2 E. & E. 133. USAGE, I.— IV. 455 USAGE. I., Requisites. III. Admissibility. II. Establishment of. IV. Effect of, generally. I. Requisites. Quaere, whether there can be an ancient fee, varying with change in value of money, &c. Shephard v. Payne, cxi. 132 ; 16 C. B. N. S. 132. A mercantile usage, allowing an award by an umpire, upon evidence not com- municated to one of the parties, is bad. In re Brook & Delcomyn, cxi. 403 ; 16 C. B. N. S. 403. Twenty years user by innkeeper of a highway, for purposes of business, does not establish an immemorial usage to such use of the highway. Gerring v. Bar- field, cxi. 597 ; 16 C. B. N. S. 597. II. Establishment of. Immemorial usage to fees of registrar of Archdeaconry Court, what sufficient to establish. Shephard v. Payne, cxi. 132: 16 C. B. N. S. 132: affirming s. c, civ. 414; 12 C. B. N. S. 414. Modern usurpation of excess will not affect the title to them. Ibid. III. Admissibility. Parol evidence of a custom of trade, that a broker, buying without disclosing principal, is individually liable, admitted, to explain a written instrument. Hum- frey v. Dale, xc. 266 ; 7 E. & B. 266. Parol evidence of a mercantile usage admitted to explain what the written con- tract left uncertain. Lucas v. Bristow, xcvi. 907 ; E., B. & E. 907. To explain meaning of " weekly account" in building contract. Myers v. Sari, cvii. 306 ; 3 E. & E. 306. Not to explain contract of insurance, where by course of business contract is clear. Pearson v. Com. Union Ass. Co., cix. 304 ; 15 C. B. N. S. 304. It seems, that evidence of an usage to allow value of articles mentioned in bill of lading, but not put on board, to be deducted from freight, would not be ad- missible. Meyer v. Dresser, cxi. 646 ; 16 C. B. N. S. 646. To prove as to meaning of analysis by two chemists in London. Heyworth v. Knight, cxii. 298 ; 17 C. B. N. S. 298. To show that discount of three months was made on freights from certain ports. Falkner v. Earle, cxiii. 360 ; 3 B. & S. 360. IV. Effect of, generally. To explain meaning of " weekly account" in building contract. Myers v. Sari, cvii. 306 ; 3 E. & E. 306. Under such circumstances, ambiguity on the face of the phrase is not necessary for the admission of evidence. Ibid. Unless the parties intended otherwise, the peculiar meaning of the trade will prevail. Ibid. But this will not be the case, if it appear to the contrary by the express terms of the written instrument, or by necessary implication therefrom. Ibid. Deduction on freight, mentioned in bill of lading, allowed by custom. Falkner v. Earle, cxiii. 360 : 3 B. & S. 360. 456 USE AND OCCUPATION. VACCINATION. USB AND OCCUPATION. Lies where a lease was executed and delivered, but retained by lessor, with an understanding that lessee should go into possession as tenant from year to year on its terms, until a certain sum should be paid. Gudgen v. Besset, lxxxviii. 986 ; 6 B. & E. 986. The terms of the tenant and sub-tenant expiring on the same day, the landlord refused subsequent rent from the sub-tenant in possession, preferring the tenant, who paid the rent after bringing this suit against sub-tenant ; held, evidence of contract for occupation. Levi v. Lewis, xcv. 766 ; 6 C. B. N. S. 766. Affirmed in Exchequer Chamber, xcix. 872 ; 9 C. B. N. S. 872. Where a tenant from year to year has quitted the premises and removed his goods, after a notice to quit, the accidental detention by him of the key for two days beyond the expiration of the term is no evidence of use and occupation. Gray v. Bompas, ciii. 520 ; 11 C. B. N. S. 520. May lie by an auctioneer against one who bids for the privilege of using a common, the right to which is vested in the municipal corporation wherein the bidder is a freeman. Fisher v. Marsh, cxviii. 411 ; 6 B. & S. 411. USES AND TRUSTS. In a conveyance under the Statute of Uses, actual possession of a rent-charge will be acquired at the time of execution of conveyance. Heelis v. Blain, cxiv. 90; 18 C. B.N. S. 90. Aliter, in a conveyance at common law. Ibid. USURY. On an advance-note by the master of a vessel, promising to pay, ten days after sailing, to any one who should advance to H. 67. provided EL sailed, held, that an advance of 31. bs. cash and 21. 15s. worth of clothing fulfilled the condition, though for all cash 7 J per cent, would have been charged. McKune v. Joynson, xciv. 218; 5 0. B. N.S. 218. A transaction securing the annual payments of an annuity, being over 5 per cent, on the land, and the principal by a policy of insurance on the life of a grantor, with a covenant for payment of premiums, is not usurious. Howkins v. Bennet, xcvii. 507 ; 7 C. B. N. S. 507. VACCINATION. There can only be one conviction for not vaccinating a child within three months, under 16 & 17 Vict. c. 100, and 24 & 25 Yict. c. 59. Pilcher v. Stafford, cxvi. 775; 4B. & S. 775. VENDOR AND VENDEE, I. (a). 457 VENDOR AND VENDEE. I. rv. V. Passing of the title. (a) When title passes. (6) When it does not pass. II. Delivery. III. Lien of Vendor. (a) Of chattels. (6) Stoppage in transitu. Market overt. Fraud by retention of possession or voluntary conveyance. VI. Illegality of the contract. VII. Title to be shown by Vendor. VIII. Construction of agreement and articles. (a) Generally. (6) What constitutes, (c) Authority. (d) Collateral, (e) Meaning of words. (/) Mercantile. • (g) Particular phrases. [h) Generality restrained. (i) Subject-matter. (k) Quantity. (I) Stipulation for valuation. (m) Performance. (nj Breach. IX. Condition precedent. X. Implied contract. XI. Delivery of the abstract. XII. Rescission of the contract and its effect. XIII. Other matters avoiding con- tract. XIV. Warranty. XV. Sale by sample. XVI. Action against Vendor and the damages. XVII. Action by Vendor. XVIII. Statute of Frauds. (a) Contracts relating to realty. (6) Contract for sale within Statute of Frauds. (c) Delivery and acceptance within the exception to the 17th section. (d) Sufficient note in writ- ing within 17th sect. (e) Contract in writing with- in the 4th section. (/) Goods, wares and mer- chandise within mean- ing of the 17th sect. I. Passing op the title. (a) When title passes. Deed assigning vendor's interest in goods and giving vendee right to enter and take possession of them, including substituted goods, under which vendee after- ward took possession with consent of vendor, gave good title to the goods sub- stituted. Hope v. Hayley, lxxxv. 830; 5 E. & B. 830. Putting part of a heap of barley partially paid for into the sacks of the ven- dee passes the title. Aldridge v. Johnson, xc. 885 ; 7 E. & B. 885. But not that of the rest of the bulk. Ibid. The affidavit to a bill of sale required by 17 & 18 Vict. c. 36, is sufficient if it furnish reasonable proof of the execution and attestation, aad of the residence and occupation of the attesting witness. Kouth v. Roublot, cii. 850 ; 1 E. & E. 850. Bill of sale not invalid, under 17 & 18 Vict. c. 36, because the commissioner in the affidavit describes himself as of the exchequer. Cheney v. Courtois, cvi. 634 ; 13 C. B. N. S. 634. Affidavit accompanying bill of sale, under 17 & 18 Vict. c. 36, must give de- scription of person's occupation who makes the bill, at time bill is made. L. & W. Loan Co. v. Chase, civ. 731 ; 12 C. B. N. S. 731. What description of residence sufficient to accompany bill of sale, under 18 & 19 Vict. c. 36, s. 8, against creditors. Hewer v. Cox, cvii. 428 ; 3 E. & E. 428. Assignee of personal chattels by bill of sale, under 17 & 18 Vict. c. 36, s. 1, if filed within twenty-one days, has good title as against execution creditor. Mar- pies v. Hartley, cvii. 610 ; 3 E. & E. 610. Even though levy made before filing of bill of sale. Ibid. Bill of sale by one not in trade or occupation, before act of bankruptcy described as "gentleman," good against assignee, under 17 & 18 Vict. c. 36. Gray v. Jones, cviii. 743 ; 14 C. B. N. S. 743. Bill of sale under pressure, made bona fide and possession taken, good as against assignees in bankruptcy. Shrubsole v. Sussams, cxi. 452 ; 16 C. B. N. S.452. 458 VENDOR AND VENDEE, I. (a), (6), II. Bill of sale, under 17 & 18, Vict. c. 36, s. 2, need not contain statement of any- trust unless it affect its operation between grantor and grantee. Robinson v. Collingwood, cxii. 777 ; 17 C. B. N. S. 777. Though price not agreed upon, property in goods will pass to vendee, if there be intention to that effect. Joyce v. Swann, cxii. 84 ; 17 C. B. N. S. 84. The price in such case will be a reasonable price. Ibid. _ Mortgagee of personal chattels, not registering, but taking possession, has good title against subsequent vendee registering bill of sale, under 17 & 18 Vict. c. 36. Maugham v. Sharpe, cxii. 443 ; 17 C. B. N. S. 443. Endorsing over a bill of exchange given as collateral security does not prevent taking possession under a bill of sale. Bramwell v. Eglinton, cxvii. 39 ; 5 B. & (6) When it does not pass. Where A. sold goods to B. to be delivered and paid for in fourteen days by cash, directed wharfinger to transfer them to B., sent transfer order to B. and demanded check, but B. retained order without returning check, no transfer of property. Godts v. Rose, lxxxiv. 229 ; 17 C. B. 229. Property in goods not specific does not pass to vendee until he assents to appropriation made by vendor upon his terms. Ibid. An instrument not registered, under 17 & 18 Vict. c. 36, which operates as a bill of sale of machinery attached to the freehold for trade purposes, and also as a mortgage of the land and machinery, is void as to the machinery against as- signees in bankruptcy. Waterfall v. Penistone, lxxxviii, 876 ; 6 E. & B. 876. Bill of sale void as to creditors, under 17 & 18 Vict. c. 36, s. 1, unless descrip*- tion of residence and occupation filed with it. Hatton v. English, xc. 94 : 7 E. & B. 94. Bona fide bill of sale in consideration of a past debt and an advance is good against creditors, though the debtor remain in possession with his name over the door. Weaver v. Joule, xci. 309 ; 3 0. B. N. S. 309. Description of the residence of the witness to a bill of sale as being the office where he spent the day, is sufficient. Blackwell v. England, xcii. 541 ; 8 E. & B. 541. Sale of goods to be delivered on the safe arrival of a certain ship does not pass any present title. Hale v. Rawson, xciii. 85 ; 4 C. B. N. S. 85. A bill of sale may give creditor a right to enter and seize after-acquired goods. Chidell v. Galsworthy, xcv. 471 ; 6 C. B. N. S. 471. 17 & 18 Vict. c. 36, s. ], requires the bill of sale and the affidavit to be filed at the same time. Grindell v. Brendon, xcv. 698 ; 6 C. B. N. S. 698. Where vendor to be paid in instalments and until balance paid to have a lien, and in case of default to be entitled to dispose of or remove, he retains the title, Walker v. Clyde, c. 381 ; 10 C. B. N. S. 381. Registry of bill of sale, under 17 & 18 Vict. c. 36, will not pass title so as to prevent application of provisions of 12 & 13 Vict. c. 106, s. 125. Badger v. Shaw, cv. 472; 2E. &E. 472. Where an appropriation of goods was made by mistake no title passes. Campbell v. Mersey Docks, cviii. 412: 14 C. B. N. S. 412. It seems, that even if there has been an appropriation it must have been assented to by vendee. Ibid. Where it is the intention of the vendor that property in goods shall not pass until payment of the price, he can intercept the goods until the condition is performed. Moakes v. Nicolson, cxv. 290 ; 19 C. B. N. S. 290. A purchaser from the vendee on a verbal contract before goods were shipped would be in no better position. Ibid. II. Delivery. Qucere, as to vendor's liability to deliver, when goods are sold "expected to arrive," and other goods of same sort do arrive, consigned to other parties. Gorrissen v. Perrin, lxxxix. 681 ; 2 C. B. N. S. 681. Qucere, whether vendee may reject a crate containing distinguishable unor- dered goods, along with those ordered, all being charged in one invoice, and the place of delivery being distant. Levy v. Green, xcii. 575 ; 8 E. & B. 575. Vendor of goods to be delivered, accepting a bill in payment, may withhold VENDOK AND VENDEE, II, III. (a), (6), IV, V. 459 delivery, if vendee become insolvent, and the bill be dishonored. Griffiths v. Perry, cii. 680 ; 1 E. & E. 680. And though vendor, before dishonor, have committed a breach of contract, and his delivery order been endorsed over, only nominal damages can be re- covered. Ibid. Vendor of shares of stock is only bound to deliver the certificates and trans- fers, though the company refuse the latter. Stray v. Russell, cii. 887 ; 1 E. & E. 887. Vendee may reject a crate containing other goods packed with those bought. Levy v. Green, cii. 969 ; 1 E & E. 969. One sufficiently performs a contract to deliver shares who puts the other party in the position of legal owner. Hunt v. Gunn, cvi. 226 ; 13 C. B. N. S. 226. What constitutes delivery discussed. Am. Ed. note. Campbell v. Mersey Docks, cviii. 412 ; 14 G. B. N. S. 412. III. Lien op Vendor. (a) Op chattels. A promise by the assignee of a contract of sale to pay the original vendor, in consideration of his giving up his lien, is not within the Statute of Frauds. Fitzgerald v. Dressier, xciv. 885 ; 5 C. B. N. S. 885. Vide, also, xcvii. 374 ; 7 C. B. N. S. 374. _ Where the vendor sold goods lying in his warehouse, undeliverable without his order, and the vendee resold them, giving a delivery order, which was accepted by the first vendor, followed by partial delivery, the first vendor could not, on the insolvency of the first vendee, without payment, claim a lien on the balance as against the second vendee. Pearson v. Dawson, xcvi. 448 ; E., B. & E. 448. Shipment of salt on vessel of vendee, upon mate's receipt to vendor, before execution of bill of lading, still subject to retention for lien of vendor, on account of the insolvency of the vendee, there being no intention to deliver. Falk v. Fletcher, cxiv. 403 ; 18 C. B. N. S. 403. Circumstances entitling vendor to exercise right of lien. Ibid. Where goods are sold, and shipped on vessel chartered by vendee, to be paid in cash against bill of lading in hands of vendor's agent, upon non-compliance with condition, vendor can intercept the goods. Moakes v. Nicolson, cxv. 290 ; 19 C. B. N. S. 290. (6) Stoppage in transitu. Where goods were delivered against orders of vendee, who was on the verge of insolvency, and he wrote to vendor returning the draft, expressing willingness to return the goods and regret that his solicitor advised against it, and afterward vendor demanded them and was referred to the solicitor, it was held no stoppage in transitu. Heinekey ». Earle, xcii. 410 ; 8 E. & B. 410. Where, by contract, title was to pass on the transfer of the bill of lading, right of stoppage in transitu may be exercised before the transfer, though, the vendor, supposing transfer to have been made, gave a quasi consent to the payment of freight by the assignee of the vendee and the delivery of the goods to a carrier employed by him. Sheridan v. The New Quay Co., xciii. 618 ; 4 C. B. N. S. 618. Goods delivered to carriers, who hold as warehousemen, awaiting orders for ultimate destination, cannot be stopped in transitu. Smith v. Hudson, cxviii. 431 ; 6 B. & S. 431. IV. Market overt. Sale by public auction at horse repository outside of London, is not sale in market overt. Lee v. Bayes, lxxxvi. 599 ; 18 C. B. 599. A sale by sample, followed by delivery out of the market, is not entitled to privileges of market overt. Crane v. London Dock Co, cxvii. 313 ; 5 B. & S. 313. Quaere, as to a purchase by a shopkeeper in his shop. Ibid. V. Fraud by retention of possession or voluntary conveyance. Payment by a debtor on the eve of bankruptcy without a demand by the creditor is not necessarily a fraudulent preference. Bills v. Smith, cxviii. 314 ; 6 B. & S. 314. 460 VENDOR AND VENDEE, VI.— VIII. (a). Bill of sale void as to creditors, under 17 & 18 Viet. c. 36, unless description of residence and occupation filed with it. Hatton v. English, xc. 94 ; 7 E. & B. 94. Bona fide bill of sale in consideration of a past debt and an advance, is good against creditors, though the debtor remain in possession, with his name over the door. "Weaver v. Joule, xci. 309 ; 3 C. B. N. S. 309. VI. Illegality of the contract. Deed transferring vendor's interest in goods and giving vendee right to enter and take possession, including substituted goods, under which vendee afterwards with consent of vendor took possession, gave good title to substituted goods. Hope v. Hayley, lxxxv. 830 ; 5 E. & B. 830. Agreement to purchase goods, paying a certain price if the vendor was right as to a disputed fact, and another lower price if vendee right, a wagering and voidable contract. Rourke v. Short, lxxxv. 904 ; 5 E. & B. 904. A sale of slaves, in a country where such a contract is lawful, by a British subject, who purchased them after 5 Geo. 4, c. 113, and before 6 & 7 Vict. c. 98, may be enforced. Santos v. Illidge, xcviii. 861 ; 8 C. B. N. S. 861. Reversing Common Pleas, xcv. 841 ; 6 C. B. N. S. 841. It is not illegal, nor in violation of 49 Geo. 3, c. 126, to sell volunteer uniforms, with the intent that the purchaser may obtain a military commission. Eicke v. Jones, ciii. 632 ; 110. B. N. S. 632. Vendee of land under contract, where there had been previous conveyance by trustee for grossly inadequate price, affected with notice thereof, can recover back money paid, under count for money had and received. Stevens v. Austen, cvii. 685 ; '3 E. & E. 685. VII. Title to be shown by Vendor. On a sale of property "land tax redeemed," where one of the conditions was that every deed should be conclusive evidence of the facts recited in it, a recital of a previous sale " free from land tax," is not sufficient. Buchanan v. Poppleton, xciii. 20; 4 C. B. N. S. 20. A title depending upon aquestion of fact not reasonably certain, is not good and sufficient. Simmons v. Heseltine, xciv. 554 ; 5 C. B. N. S. 554. VIII. Construction of agreement and articles. (a) Generally. Semble, that on sale of goods to be " delivered and paid for in fourteen days by cash," vendor may demand cash on delivery. Godts v. Rose, lxxxiv. 229 ; 17 C. B. 229. Where seller executed transfer of shares in a joint stock company in blank, and they remained in his name on books of company, the buyer is not liable to him for calls he was subsequently compelled to pay. Walker v. Bartlett, lxxxiv. 446 ; 17 C. B. 446. Vide lxxxv. 845 ; 18 C. B. 845. Where A. agreed to build ship for B., and if not completed according to terms, B. should take possession and himself complete, using such materials of A. as should be applicable, and B. afterwards took possession, assorted A.'s material, put some of it within ship but did not attach, held not using, and that material belonged to A.'s assignees in bankruptcy. Baker v. Gray, lxxxiv. 462 ; 17 C. B. 462. Where plaintiff agreed to fit up emigration ship for the sum of 15s. per statute, adult, work to be done to satisfaction of commissioners, held he could not re- cover for berths erected but removed under their order, or for extras. Dobson v. Hudson, lxxxvii. 652 ; 1 C. B. N. S. 652. Where at an auction of a freehold and a rent, the conditions were, that no objections should be made to title because of the non-receipt of the rent, and the purchaser afterward discovered that no rent had been received for twenty years, he was held bound. Hanks v. Palling, lxxxviii. 659 ; 6 E. & B. 659. Where A. orders vessel to be built by shipbuilder, to be paid for in instalments, and superintends erection, and builder punches A.'s name in her keel and admits his ownership, held to show intention of parties that property should pass pari passu with progress toward completion, and held that materials went with her. VENDOR AND VENDEE, VIII. (a), (6), (o), (d), (e), (/). 461 Wood v. Bell, Ixxxv. 772 ; 5E.&B, 772. Affirmed in Ex. Ch. as to vessel, but not materials, lxxxviii. 355 ; 6 E. & B. 355. Variation in mere matter of description as of particular quality does not in- validate contract. Hopkins v. Hitchcock, cviii. 65 ; 14 C. B. N. S. 65. Liable to broker on agreement to pay commissions, where act of broker has brought about the sale. Green v. Bartlett, cviii. 681 ; 14 C. B. N. S. 681. Where plaintiff has failed to perform his part of the contract he cannot re- cover. Borrowman v. Rossel, cxi. 58 ; 16 G. B. N. S. 58. Reservation of right of vendor to rescind contract for sale of real estate con- strued. Vestry of Shoreditch v. Hughes, cxii. 137 ; 17 C. B. N. S. 137. Whether a tender of certain shipping documents is sufficient under a certain contract for the purchase of wheat, a question for the jury. Tamvaco v. Lucas, cxiii. 89 ; 3 B. & S. 89. Affirming s. c. in Q. B., ci. 185 ; 1 B. & S. 185. (5) What constitutes. Where assignee of bill of lading demands cargo of master who agrees to de- liver, it does not constitute contract to receive within a reasonable time. Moel- ler ». Young, lxxxv. 755 ; 5 E. & B. 755. Reversing Ibid. 7. Auctioneer advertising a sale for an unknown principal as ''without reserve," is liable to the highest bona fide bidder if he knocks down the goods to the owner. Warlow v. Harrison, cii. 295 ; 1 E. & E. 295. Delivery of bill of lading and other circumstances sufficient to pass property to vendee. Joyce v. Swann, cxii. 84 ; 17 C. B. N. S. 84. Where there is clear offer for and acceptance of offer for goods, through broker, contract is final and binds principal. Heyworth v. Knight, cxii. 298 : 17 C. B. N. S. 298. " * (c) Authority. Authority of vendees of licensee of patent to sell without consent of patentee. Thomas v. Hunt, cxii. 183 ; 17 C. B. N. S. 183. (d) Collateral. When bill of sale provides that money is to be paid at a time fixed by notice, and in default goods are to be seized, reasonable time must be allowed for pay- ment. Brighty v. Norton, cxiii. 305 ; 3 B. & S. 305. A half-hour is not a reasonable time. Ibid. (e) Meaning of words. "As soon as possible," means within a reasonable time. Atwood v. Emery, Ixxxvii. 110 ; 1 C. B. N. S. 110. Guaranty, if on a sale a property does not bring a certain price, means a com- pleted sale. Moor v. Roberts, xci. 830 ; 3 C. B. N. S. 830. Commission to be paid by vendor on " goods bought," entitles to commission on goods, the order for which is accepted, though they are never delivered. Lockwood v. Levick, xcviii. 603 ; 8 C. B. N. S. 603. On a written contract providing for commissions on the '' sale of property," and different commissions on " letting or disposal of the leases," held that an assignment of a lease was a sale. Biggs v. Gordon, xcviii. 638 ; 8 C. B. N. S. 638. On a contract to supply a cargo afloat, for which buyer to pay cash in exchange for the "shipping documents," a policy of insurance which substantially covers the value of the cargo, but not the freight, is sufficient. Tamvaco v. Lucas, ci. 185; 1B.&S. 185. Affirmed in Exehequer Chamber, cxiii. 89 ; 3 B. & S. 89. What are book-debts so as to pass under sale by assignees, under 24 & 25 Vict. c. 134, s. 137. Shipley v. Marshall, cviii. 566 ; 14 £ B. N. S. 566. (/) Mercantile. Consignee receiving goods is not liable for demurrage incurred at port of load- ing, though he was to pay for them as per charter-party, which stipulated for a lien for demurrage. Smith v. Sieveking, Ixxxv. 589 ; 5 E. & B. 589, 462 VENDOR & VENDEE, VIII. (g), (K), (**), (k), (Z), (m), O). (. Bannister, cxii. 708 ; 17 C. B. N. S. 708. Where, prior to the purchase of a horse, the defendant said to the plaintiff that the horse was a good harness horse, and was sold by Baron R. because he could not match him, it was properly left to the jury whether it was a warranty. Percival v. Oldacre, cxiv. 398 ; IB C. B. N. S. 398. XV. Sale by sample. A sale by sample, followed by delivery out of the market, is not entitled to the privileges of market overt. Crane v. London Dock Co., cxvii. 313 ; 5 B. & S. 313. On a sale by sample before the buyer has ascertained whether the bulk cor- responds, there is no acceptance. Smith v. Hudson, cxviii. 431 ; 6 B. & S. 431. XVI. Action against Vendor and the damages. Where vendor, without fault, is unable to make good title, he is not liable in damages beyond expenses. Pounsett v. Fuller, lxxxiv. 660 ; 17 C. B. 660. Not for expenses of futile attempts to substitute a new contract incurred after failure of old. Ibid. One who bona fide offers a property for sale, believing that an encumbrance can be removed, is not liable, in case of failure, to a purchaser for damages for the loss of the bargain. Sikes v. Wild, ci. 587 ; 1 B. & S. 587. Nominal damages given where the breach. is merely technical. Steer v. Crowley, cviii. 337 ; 14 C. B. N. S. 337. When vendor entitled to rescind contract in reasonable time and does so, action will not lie. Vestry of Shoreditch ». Hughes, cxii. 137 ; 17 C. B. N. S. 137. What damages too remote for breach of contract, and what not. Borries v. Hutchinson, cxiv. 445 ; 18 C. B. N. S. 445. When articles can be easily obtained market valus is the measure of damages ; otherwise loss in expenses and profit not realized Ibid. Damages for the loss of the bargain may be recovered by lessee for defect of title in the lessor. Lock v. Furze, cxv. 96 ; 19 C. B. N. S. 96. And it will make no difference whether it be a lease or a mere interesse termini granted. Ibid. Damages are limited to the actual loss, and jury cannot go beyond it. Ibid. Vendor acting bona fide not liable for the loss of the bargain to vendee, but only for expenses of investigation of title. Sikes v. Wild, cxvi. 421 ; 4 B. & S. 421. Affirmingci. 587 ; 1 B. & S. 587; and reviewing Florence v. Thornhill, 2 W. Bl. 1078, and Hopkins v. Grazebrook, 6 B. & C. 31 ; 13 E. C. L. R. 31. Qucere, whether actual fraud is not necessary to make a vendor liable for dam- ages for the loss of the bargain : per Erie, C. J. Ibid. Loss of profits on a resale not allowed as damages for breach of contract to deliver. Williams v. Reynolds, cxviii. 495 ; 6 B. & S. 495. XVII. Action by Vendor. On a sale of goods to the resident member of a foreign firm, on account of the Vol. III.— 30 466 VENDOR AND VENDEE, XVII., XVIII. (a), (J), (c). firm, making out the invoices to him individually and accepting his individual paper, which was afterward proved in bankruptcy, do not prevent recovery against another member of the firm unknown at the time of the contract. Bottomley v. Nuttall, xciv. 122 ; 5 C. B. N. S. 122. The conditions of a vendue, providing that in case of failure to comply with them the deposit money shall be forfeited, a resale made, and the defaulter be respon- sible for any deficiency and expenses, the vendor cannot recover the whole difference between the two sales as well as the deposit money. Ockenden v. Henly, xcvi. 485 ; E., B. & E. 485. XVIII. Statute of Frauds. (a) Contracts relating to realty. Shares in a mine, worked on the cost-book principle, not an interest in land. Powell v. Jessopp, lxxxvi. 336 ; 18 C. B. 336. Shares in cost-book mine not necessarily interest in land. Walker v. Bartlett, lxxxvi. 845 ; 18 C. B. 845. Agreement by parol, to return a certain part of the consideration paid for an interest in a house, provided a license could not be obtained, is not within the statute. Green ». Saddington, xc. 503 ; 7 E. & B. 503. Verbal agreement by plaintiff, with defendant, a tenant, to take possession of a brickyard, take the plant and bricks at a valuation, and that the defendant should pay all the rent due, and induce landlord to accept plaintiff as a tenant, is void, under s. 4. Hodgson v. Johnson, xcvi. 685 ; E., B. & E. 685. Any agreement, between landlord and tenant, which results in a change of possession, amounts to a surrender by act and operation of law, under 29 Car. 2, c. 3. Phene v. PopplCwell, civ. 334; 12 C. B. N. S. 334. A parol agreement for board and lodging of defendant, his man and horse, at a fixed sum per annum, the agreement to be terminable at a quarter's notice, is not a contract for any interest in or concerning land, within s. 4. Wright c. Sta- vert, cv. 721 ; 2 E. & E. 721. Where one paper refers to another, in which terms of agreement are stated, it is sufficient. Fitzmaurice v. Bayley, cvii. 772 ; 3 E. & E. 772. Affirming Ex. Ch., xcii. 664 ; 8 E. & B. 664 ; which reversed Q. B., Ixxxiii. 868 ; 6 E. & B. 868. But it must refer with sufficient directness, and state duration of term. Ibid. And the ratification of an insufficient paper would not correct it. Ibid. Recovery can be had for breach of written agreement, not by deed, giving liberty to dig and carry away cinders from land. Smart v. Jones, cix. 717 ; 15 C. B. N. S. 717. A mere proposal for a lease, without stating commencement or duration of term, is within 4th sect. Clark v. Fuller, cxi. 24; 16 C. B. N. S. 24. An instrument, void as a lease, may be good as an agreement for leasing. Ti- dey v. Mollett, cxi. 298 ; 16 C. B. N. S. 298 ; Hayne v. Cummings, cxi. 421 ; 16 C. B. N. S. 421. When balance is settled in an account stated, and one of the items is for pur- chase-money of land, the contract being verbal and against the Statute of Frauds, the balance can be recovered in account stated. Laycock v. Pickles, cxvi. 497 ; 4 B. & S. 497. (6) Contract for sale within Statute of Frauds. Contract for sale of goods of the value of 101. is within the statute, though it include something else, and the price of each is not determined. Harman v. Reeve, lxxxvi. 587 ; 18 C. B. 587. A promise by the assignee of a contract of sale, to pay the original vendor, in consideration of his giving up his lien, is not within the statute. Fitzgerald v. Dressier, xciv. 885; 5 C. B. N. S. 885; also, xcvii. 374; 7 C. B. N. S. 374. Sold note of broker, acting as agent for both parties, sufficient, as to buyer, to satisfy requirements of statute, in action by seller. Parton c. Crofts, cxi. 11 ; 16 C. B. N. S. 11. (c) Delivery and acceptance within the exception to the 17th section. Where defendant, in possession of goods, bought of plaintiff by A., agrees, VENDOR AND VENDEE, XVIII. (c), (d). 467 with consent of A., to become purchaser himself, no -written contract required between A. and plaintiff. Douglas v. Watson, lxxxiv. 685; 17 C. B. 685. Goods sold and delivered to defendant, who alleged they were received as security, sufficient acceptance. Tomkinson v. Staight, lxxxiv. 697 ; 17 C. B. 697. Acceptance upon the terms of the bargain, not required. Ibid. Where plaintiff testified that the vendee, alleging the seed to be hot and mouldy, spread it out thin to dry, but that plaintiff vendor did not authorize the act, and that the seed was in good condition, held evidence of acceptance. Parker v. Wallis, Ixxxv. 21 ; 5 E. & B. 21. Where the sale of a horse was made, but the vendor retained him as a loan, there was sufficient acceptance. Marvin v. Wallis, lxxxviii. 726 ; 6 B. & B. 726. No delivery and acceptance where tenant in possession, with an option to buy under a verbal contract, tenders the money, and it is refused. Taylor v. Wake- field, lxxxviii. 765 ; 6 E. & B. 765. Where buyer takes samples from the bulk, after purchase, it is sufficient. Gard- ner v. Grout, lxxxix. 340 ; 2 C. B. N. S. 340. Direction by vendee that the goods should be sent to him by sea, from a certain wharf, followed by delivery at the wharf, whence they were sent by the wharf- inger and lost, is not an acceptance, within the statute. Hart v. Bush, xcvi. 494 ; E., B. & E. 494. Where defendant selected specific goods, ordering them to be sent to a wharf where he had for years stored similar goods, and they were sent, and thence delivered on his order, it is sufficient. Cusack v. Robinson, ci. 299 ; 1 B. & S. 299. Acceptance may be before delivery. Ibid. _ Where a carrier had warehoused the goods for vendee, who by custom had a right to compare them with sample before accepting, and vendee, after compar- ing, did not object, but being embarrassed, ordered them not to be sent home at that time, held no acceptance. Nicholson v. Bower, cii. 172 ; 1 E. & E. 172. _ Where defendant has bill of lading made out in accordance with his direc- tions, and receives it on repaying the plaintiff the freight, and keeps it a year, this is evidence of delivery and acceptance. Currie v. Anderson, cv. 591 ; 2 E. & E. 591. Where, on sale by sample, the buyer's foreman, before prompt day, attended at the warehouse of seller's factor, saw the goods weighed, compared them and adjusted allowances, it was a sufficient acceptance. Simmonds v. Humble, cvi. 258 ; 13 C. B. N. S. 258. On a sale by sample, before the buyer has ascertained whether the bulk cor- responds, there is no acceptance. Smith v. Hudson, cxviii. 431 ; 6 B. & S. 431. (d) Sufficient note in whiting within 17th sect. Entry of goods, with prices in order-book, on fly leaf of which were the names of plaintiffs, signed by the defendant, is sufficient. Sari v. Bourdillon, lxxxvii. 188 ; I C. B. N. S. 188. Though one article entered as " candlestick complete," and it was proven that a gallery for a musquito shade was to be added. Ibid. Though it did not mention that payment to be made by check of third party. Ibid. An agent, exceeding his authority, having made an agreement, which was an assignment of a term or an underlease, the principal wrote " I must support him in all he has done," but did not refer to the duration of the term, held sufficient memorandum in writing. Fitzmaurice v. Bayley, lxxxviii. 868 ; 6 E. & B. 868. Reversed in Ex. Ch., xcii. 664 ; 8 E. & B. 664, which decision was affirmed in H. of L. cvii. 772 ; 3 E. & E. 772 : Lord Campbell, L. C, dissenting. A note, t signed by defendants as brokers, stating " sold this day," for T., " to our principal," accompanied by a note of T., also brokers, stating that they had sold to defendants for account of the plaintiff, and by evidence of a custom that a broker buying for an undisclosed principal is liable, is sufficient. Humfrey v. Dale, xc. 266 ; 7 E. & B. 266. Affirmed in Ex. Ch., xcvi. 1004 ; E ., B. & E. 1004. A letter may be sufficient, though it repudiate liability. Bailey v. Sweeting, xcix. 843 ; 9 C. B. N. S. 843. To a letter, asking appointment of a day for fitting artificial teeth, a reply re- 468 VENDOR & VENDEE, XVIII. (d), (e), (/). VENUE, I. gretting that health prevents taking advantage of the early day, and fearing ina- bility for some days, not sufficient. Lee v. Griffin, ci. 272 ; 1 B. & S. 272. An offer to sell must be accepted in writing, to make the sale complete as to third parties. Felthouse v. Bindley, ciii. 868; 11 C. B. N. S. 868. Qncere, by Willes, J. Was there any contract at all? Ibid. Sold note of broker, acting as agent for both parties, sufficient as to buyer to satisfy requirements of statute in action by seller. Parton v. Crofts, cxi. 11 ; 16 C. B. N. S. 11. (e) Contract in writing within the 4th sect. A written proposal, signed by defendant and accepted by plaintiff orally, is sufficient. Smith v. Neale, lxxxix. 67 ; 2 C. B. N. S. 67. Where, what the plaintiff is to do, constituting the entire consideration, can be performed within a year, and it does not appear that any part was to be post- poned beyond that time, it is not within 4th sect. Ibid. An agent, exceeding his authority, having made an agreement, which was an assignment of a term or an underlease, the principal wrote, " I must support him in all he has done," but did not refer to the duration of the term, held sufficient memorandum in writing. Fitzmaurice v, Bayley, lxxxviii. 868 ; 6 E. & B. 868. Reversed in Ex. Ch., xcii. 664 ; 8 E. & B. 664, which decision was affirmed in the House of Lords, cvii. 772; 3 E. & E. 772. A promise, by the assignee of a contract of sale, to pay the original vendor in consideration of his giving up his lien, is not within the statute. Fitzgerald v. Dressier, xciv. 885 ; 5C.B. N. S. 885. Vide also, xcvii. 374 ; 7 C. B. N. S. 374. Though, since 19 & 20 Vict. c. 19, s. 3, parol evidence may supply the consid- eration of a guaranty, it cannot explain the promise. Holmes v. Mitchell, xcvii. 361 ; 7 C. B. N. S. 361. The writing may be explained by parol evidence, to show what duties a party to it engaged to perform. Price v. Mouat, ciii. 508 ; 11 C. B. N. S. 508. A memorandum agreement, to be responsible for debt of another, must contain names of both parties, though it need be signed only by party to be charged. Williams v. Lake, cv. 350 ; 2 E. & E. 350. What is a mere proposal for a lease and not sufficient memorandum in writing. Clark v. Fuller, cxi. 24 ; 16 C. B. N. S. 24. (/) Goods, wares and merchandise within meaning of the 17th sect. An agreement to make an artificial set of teeth. Lee v% Griffin, ci. 272 ; 1 B. & S. 272. VENUE. I. Change of. II. Other matters. I. Change of. Not changed unless there is a great preponderance of convenience. Helliwell v. Hobson, xci. 761 ; 3 C. B. N. S. 761. Not changed unless there be a manifest preponderance of convenience. Durie v. Hopwood, xcvii. 835 ; 7 C. B. N. S. 835. After defendant is under terms to take short notice of trial it requires special circumstances to induce the court to change the venue. Jackson v. Kidd, xcviii. 354 ; 8 C. B. N. S. 354. Not changed to place where action arose though all of defendant's witnesses there, if plaintiff a naval officer and likely to be prevented from attending if changed. Channon v. Parkhouse, cvi. 341 ; 13 C. B. N. S. 341. Court has power to change venue on an information in nature of quo war- ranto. Clark v. The Queen, cvii. 147 ; 3 E. & E. 147. A suggestion that case can be more conveniently tried in the other county, sufficient ground. Ibid. Unless a preponderance of inconvenience be shown the venue will not be changed from place where cause of action arose. Blackman v. Bainton, cix. 432 ; 15 C. B. N. S. 432. VENUE, L, II. VERDICT. VESTEY. 469 Mere fact that defendant in a libel suit is an editor of newspaper and has considerable influence, and has evinced a disposition to use it against plaintiff, not sufficient. Walker v. Brogdon, cxii. 571 ; 17 C. B. N. S. 571. But it seems, that if he published things in relation to the subject-matter of the action, they would. Ibid. Semble, that if one party has acted oppressively by the retention of all the counsel, the court will interfere by changing the venue. Curtis v. Lewis, cxvii. 568 ; 5 B. & S. 568. II. Other matters. An attorney, suing in his own right, has the privilege of retaining the venue at Middlesex. Grace v. Wilmer, lxxxviii. 982 ; 6 E. & B. 982. Court will not interfere with change of venue by judge at chambers, unless it be shown that he has acted on a misconception. Schuster v. Wheelwright, xcviii. 383 ; 8 C. B. N. S. 383. Court of Queen's Bench has inherent power to change the venue in the trial of a quo warranto information. Clerk v. The Queen, ci. 967 ; 1 B. & S. 967. VERDICT. Verdict of jury of inquiry set aside, where they found the damages less than the lowest estimate of the witnesses. Weeding v. Mason, lxxxix. 382 : 2 C. B. N. S. 382. Under Common Law Procedure Act of 1852 (16 & 17 Vict. c. 76), in an eject- ment, where defendant defends for all the land and plaintiff shows title to part only, the verdict should be entered for such part only. Alcock v. Wilshaw, cv. 633 ; 2 E. & B. 633. Where there is verdict against defendant, substituted for original defendant under suspicion of collusion, no verdict will be entered for original defendant. Podmore v. Schmidt, cxii. 725 ; 17 C. B. N. S. 725. Qucere, whether a verdict may be rendered on Sunday. Winsor ». The Queen, cxviii. 143 ; 6 B. dfe S. 143. VESTRY. Vestry provided for by private act, 5 Geo. 1, c. 19, is one elected for the gov- ernment of a parish, under 15 & 16 Vict. c. 85, s. 52. Regina v. Peters, lxxxviii. 225; 6E. &B. 225. Parishioner whose vote is challenged at election of vestrymen for nonpayment of rates should be permitted to show that rate is illegal. Tozer v. Child, lxxxviii. 289 ; 6 E. & B. 289. Where churchwardens were authorized with a committee to borrow money, and they agreed that a sum due contractors should be considered a loan, and gave bonds for it on which interest was paid many years after they were due, the consent of the committee was presumed. Regina v. St. Michaels, lxxxviii. 807 ; 6 E. & B. 807. The transaction was a " borrowing" within the act. Ibid. The liability of the rate-payers was not lost through non-payment of the prin- cipal for twenty years. Ibid. Action does not lie against warden who without malice prevents a party entitled to vote from voting at election of vestryman, or from being candidate. Tozer v. Child, xc. 377 ; 7 E. & B. 377. An act authorizing a major part of the vestry to remove collectors of poor rate, it was held to require a majority of those present and not of those voting. Reo-ina v. Overseers of Christ Church, xc. 409 ; 7 E. & B. 409. 470 VESTRY. Members of burial t>oard elected by the general vestry and not by a select vestry created by local act. Kegina v. Gladstone, xc. 575 ; 7 E. & B. 575. Those elected are those who have a majority of the votes cast for persons duly qualified. Kegina v. St. Pancras, xc. 954 ; 7 U. & B. 954. The minister is entitled to the possession of the vestry room as against the clerk. Jackson v. Courtenay, xcii. 8 ; 8 E. & B. 8. Where a by-law in pursuance of a statute required questions to be determined by a show of hands or a division, it was held a division might take place after the show of hands. Tear «. Treebody, xciii. 228 ; 4 C. B. N. S. 228. Action does not lie by a churchwarden against a vestry clerk for an unauthorized use of a church-rate in accordance with a custom of long standing of which the warden was aware and to which he did not object. Cooper v. Law, xcv. 502 ; 6 C. B. N. S. 502. 1 3 & 14 Vict. c. 99, being in force, the owner of tenements not exceeding 61. each in value, assessed to the poor rate instead of the occupier, is entitled to vote at vestry meetings, under 28 Geo. 3, c. 69, and at most can have but six votes. Kichardson v. Gladwin, xcvi. 138 ; E., B. & E. 138. The occupier has no such vote. Ibid. Not bound to light an unfinished, undedicated road, the soil of which is pri- vate property, under s. 130 of 18 & 19 Vict. c. 120. Kegina v. St. Mary, xcvi. 743 ; E., B. & E. 743. Notice affixed to the church that the wardens, overseers and principal inhab- itants of the parish are requested to meet in the vestry to examine the wardens' accounts and grant them a rate, is sufficient. Rand v. Green, xcix. 470 ; 9 C. B. N. S. 470. Under 58 Geo. 3, c. 69, a man holding property in his own right and as execu- tor, together assessed at 501., is entitled to two votes. Kegina v. Kirby, ci. 647; 1 B. & S. 647. Under 18 & 19 Vict. c. 120, the vestry may convert an insufficient privy into a watercloset. Vestry of St. Lukes v. Lewis, ci. 865 ; 1 B. & S. 865. Under 18 & 19 Vict c. 120, requiring the construction of a series of works, the vestry have a discretion as to the order, time and manner. Kegina v. Vestry of St. Lukes, ci. 903 : 1 B. & S. 903. Under the Local Acts, 2 Geo. 2, c. 10, s. 19, the vestry had power to make poor rates. Vaughan v. Imray, cii. 633 ; 1 E. & E. 633. By 18 & 19 Vict. c. 120 and 19 & 20 Vict. c. 112, this power was transferred to the new vestry created by the former act. Ibid. A poll must be allowed when duly demanded. White v. Steele, civ. 384 : 12 C. B. N. S. 384. Power of vestry to appoint burial board, under 15 & 16 Vict. c. 85. Regina v. Overseers of Walcot, ex. 555 ; 2 B. & S. 555. A parish for ecclesiastical purposes carved out of a common law parish is enti- tled, under 20 & 21 Vict. c. 81, s. 5, to appoint a burial board for itself, although there is already a board established for the entire original parish. Regina v. Walcot St. Swithin, ex. 571 ; 2 B. & S. 571. It seems, that where vestrymen are required to be inhabitants, they need not be resident and sleeping in the parish. Wilson v. Sunderland, cxii. 694 ; 17 C. B. N. S.694. F ° F Proper mode of voting at vestry meeting. Regina v. Roberts; cxiii. 495 ; 3 B. & S. 495 ; s. p., ReginaV Hammersmith, cxiii. 504; 3 B. & S. 504. No amendment can be brought forward after close of poll. Ibid. 18 & 19 Vict. c. 128, s. 4, provides that every vacancy in a burial board shall be filled by the vestry within one month, and in case of neglect may be filled by the board ; held that the vestry could fill a vacancy after a month. Kegina v. South Weald, cxvii. 391 : 5 B. & S. 395. WAGER. WARRANT OF ATTORNEY. 471 WAGER. Wager is not an illegal but a void consideration. Fitch v. Jones, lxxxv. 238 ; 5 E. & B. 238. Transactions not bona fide sales of stocks but settlement of differences, are illegal, and money derived therefrom irrecoverable. Nicholson v. Gouch, lxxxv. 999 ; 5 E. & B. 999. Who may set up illegality as defence. Ibid. Agreement to purchase goods, paying a certain price if the vendor was right as to a disputed fact, and another lower price if vendee right, a wagering contract. Rourke v. Short, lxxxv. 904 ; 5 E. & B. 904. Where money deposited to abide the event of a race on a particular day and with a particular starter, to be given up by the decision of the judge, and the starter did not appear, the jurisdiction of the judge did not arise. Carr v. Martinson, cii. 458 ; 1 E. & E. 456. The stakes recoverable as money had and received without demand. Ibid. When money is advanced by broker to pay difference upon stocks, he can re- cover in count for money paid, laid out and expended. Rosewarne v. Billing, cix. 316 : 15 C. B. N. S. 316. WAREHOUSEMAN. Keeping of gunpowder in warehouse by carrier, when not unlawful, under 12 Geo. 3, c. 61, s. 11. Biggs v. Mitchell, ex. 523 ; 2 B. & S. 523. WARRANT OF ATTORNEY. Filling in date after execution does not make void. Keane v. Smallbone, Ixxxiv. 179 ; 17 0. B. 179. Warrant to release errors concerning judgment, or " concerning any writ, warrant, process, declaration, plea, entry, or other proceeding whatsoever of, or any way concerning the same," does not extend to proceedings in outlawry. Solomon v. Graham, lxxxv. 309 ; 5 E. & B. 309. Warrant to confess judgment given in contemplation of insolvency, within three months before imprisonment, void as against assignee. Billiter v. Young, lxxxviii. 1; 6 E. & B. 1. Reversed in House of Lords, cvii. 736 ; 3 E. & E. 736 ; which decided that the words in 1 & 2 Vict. c. 110, s. 59, declaring such transactions '' fraudulent and void," apply only to the assignee, and the transactions may be valid as to third persons, and that when the holder of the warrant of attorney entered up judg- ment and sold the goods, trover would not lie against him by the assignee. An action does not lie upon the implied contract contained in the defeasance of a warrant of attorney. Sherborn v. Tollemache, cvi. 742 ; 13 C. B. N. S. 742. 472 WARRANTY. WAKRANTY. Sale of goods where no opportunity for inspection, implied warranty against such admixture of foreign substance as could alter distinctive character. Wteler v. Schilizzi, lxxxiv. 619 ; 17 C. B. 619. Description of vessel in charter-party as A. No. 1, no warranty she will re- main so during voyage. Hurst v. Osborne, lxxxvi. 145 ; 18 C. B. 145. Where specific patented article ordered, representations of vendor not a war- ranty. Prideaux v. Bunnett, lxxxvii. 613 ; 1 C, B. N. S. 613. Description of tonnage in charter-party, no warranty. Barker v. Windle, Ixxxviii. 675 ; 6 E. & B. 675. No warranty on sale of patent, that invention is new or valuable, or that patentee is true and first inventor. Hall v. Conder, lxxxix. 22 ; 2 C. B. N. S. 22. Written contract for sale of a cargo of fair average Nicranzi rice, allowance for any of inferior description, seller to deliver what is shipped on his account, vessel at time of contract' on her way to port of loading, held a warranty that rice is fair average Nicranzi. Simond v. Bradden, lxxxix. 324 ; 2 C. B. N. S. 324. Sale of goods " now on passage," is a warranty that they are at the time on passage. Gorrissen v. Perrin, lxxxix. 681 ; 2 C. B. N. S. 681 . One who contracts as agent, warrants his authority. Collen v. Wright, xc. 301 ; 7 E. & B. 301. Affirmed in Exchequer Chamber, xcii. 647 ; 8 E. & B. 647. Statement by the assured that he is not aware of any disorder tending to shorten his life, does not warrant the facts. Jones v. Provincial Ins. Co., xei. 65 ; 3 C. B. N. S. 65 Statements of fact by the party interested in a policy of life insurance are not a warranty of their truth unless it be so stipulated. Wheelton ». Hardisty, xcii. 232 ; 8 E. & B. 232. When a skilled laborer, artisan or artist is employed, there is an implied war- ranty of reasonable competence. Harmer v. Cornelius, xciv. 236 ; 5 C. B. N. S. 236. Liability to loss gives a right to recover for breach of warranty. Randall v. Raper, xcvi. 84 ; E., B. & E. 84. Measure of damages, where the goods have been sold by the warrantee, is the difference between the contract price and the actual value. Dingle v. Hare, xcvii. 145 ; 7 C. B. N. S. 145. Where a cargo of wheat was bought afloat on the report and samples of S., held a warranty that the bulk corresponded with the report and samples. Rus- sell v. Nicolopulo, xcviii. 362 ; 8 C. B. N. S. 362. Authority, by a private owner to his servant, to sell and deliver a horse, does not imply a right to warrant. Brady w.' Todd, xcix. 592 ; 9 C. B. N. S. 592. Where vendor in sale by sample without fraud makes a false statement as to quality, which the parties intend shall be a part of the contract, vendee may re- pudiate. Bannerman v. White, c. 844 ; 10 0. B. N. S. 844. The warranty of one who bona fide, but without authority, makes a parol lease for seven years, does not extend to liability to the lessee for costs of an un- successful defence in ejectment, though he advised it. Pow v. Davis, ci. 220 ; 1 B. & S. 220. A tendency in a horse to shy, produced by natural malformation of \he eye, is a breach of the warranty of soundness. Holliday v. Morgan, cii. 1 ; 1 E. &E. 1. Warranty free from seizure in a marine insurance policy, includes a mutinous seizure by the passengers. Kleinwort v. Shepard, cii. 447 ; 1 E. & E. 447. A vendor selling upon buyer's inspection and with a disclaimer of responsibility for quality, must nevertheless furnish an article which, in commercial language, comes within the description of the thing sold. Josling v. Kingsford, cvi. 447 ; 13 C. B. N. S. 447. Description of a particular quality not a warranty. Hopkins v. Hitchcock, cviii. 65 ; 14 C. B. N. S. 65. Representation of depth of water in dock-sill amounts to warranty of same WARRANTY. WATERS & WATERCOURSES, I., II. 473 depth in entrance channel. Williams v. Swansea, Trustees, cviii. 845 ; 14 C. B. N. S. 845. _ Admissions in letters by master are evidence of authority of servant to give ■warranty of horse on sale. Miller v. Lawton, cix. 834 ; 15 C. B. N. S. 834.. There is no warranty of seaworthiness of goods insured. Koebel v. Saunders, cxii. 71 ; 17 C. B. N. S. 71. In a warranty of soap frames, that they shall he new frames, with all nuts and bolts complete and perfect, they must be fit for the purpose for which they were made. Mallan v. Radloff, cxii. 588 ; 17 C. B. N. S. 588. In a sale of goods in a shop, there is an implied warranty of title. Eichholz v. Bannister, cxii. 708 ; 17 C. B. N. S. 708. Effect of warranty in charter-party and what amounts to. Behn v. Burness, cxiii. 751 ; 3 B. & S. 751. What can be left to a jury to say whether it amounts to warranty. Percival v. Oldacre, cxiv. 398 ; 18 C. B. N. S. 398. WASTE. Rector or his executors may remove hot-houses erected by him apart from the rectory, consisting of frame and glass work on walls and embedded in mortar. Martin v. Roe, xc. 237 ; 7 E. & B. 237. WATERS AND WATERCOURSES. I. Of navigable Streams. III. Right to flowing Water. II. Private Rivers. IV. Bridges. I. Of navigable Streams. The conservators of the Thames, under 20 & 21 Vict. c. 147, s. 53, have power to authorize the erection of buildings interfering with the navigation of the river. Kearns v. The Cordwainers' Co., xcv. 388 ; 6 C. B. N. S. 388. If a public right be taken away by act of parliament, there can be no action for interference with the accessory private right. Ibid. Camp shed, between high and low water mark, improperly constructed and out of repair, not allowed. White v. Phillips, cix. 245 ; 15 C. B. N. S. 245. Owner of several fishery, prima facie owner of soil. Marshall ». Steam Nav. Co., cxiii. 732 ; 3 B. & S. 732. Bed of navigable river, where there is tide of estuaries or arms of the sea, belongs to the crown, and if granted away is subject to the right of naviga- tion, which includes anchorage. Free Fishers, &c, v. Gann, cxv. 803 ; 19 C. B. N. S. 803 ; reversing s. c. in 0. P., ciii. 387 ; 11 C. B. N. S. 387 ; and in Ex. Ch., cvi. 853 ; 13 C. B. N. S. 853. Such ownership cannot be used to darogate from such right. Ibid. A claim of immemorial payment for anchorage, interferes with the right of navigation, unless it be shown that it was an ancient port. Ibid. « II. Private Rivers. Under statute 17 Vict. c. 67, s. 158, placing large stones across a river, without cement or fastening, does not make a " building, erection or thing." Colbran v. Barnes, ciii. 246 ; 11 C. B. N. S. 246. Riparian owner entitled to penalty where impure water has been allowed to flow into stream, under 10 & 11 Vict. c. 15. Parry v. Croydon Com. Gas. Co., ciii. 579 ; 11 0. B. N. S. 579. Under 24 & 25 Vict. c. 109 (Salmon Fishery Act), occupier of fishing mill-dam 474 WATERS AND WATERCOURSES, II., III. must lift or remove the hatches, at particular times, even though it injuriously affect his milling power. Hodgson v. Little, cxi. 198 ; 16 C. B. N. S. 198. Where mill-owner has immemorial right to stream, owner of neighboring mine cannot pollute it by drainage. Hodgkinson v. Ennor, cxvi. 229 ; 4 B. & 8. 229. Sic uiere tuo, ut alienum non Icedas, applicable. Ibid. III. Right to flowing Watee. Where occupiers of plaintiff's land for more than forty years had gone on de- fendant's land and turned water of a brook into an artificial channel, defendant liable for interruption. Beeston v. Weate, lxxxv. 986 ; 5 B. & B. 986. Water cannot be detained until so late in the day that landowner below is deprived of the full use of it. Sampson v. Hoddinott, lxxxvii. 590 ; 1 C. B. N. S. 590. Riparian rights limited to natural streams. Ibid. All persons owning lands along a stream have a natural right to use the water and may begin when they will. Ibid. Affirmed in Exchequer Chamber, xci. 596 ; 3 C. B. N. S. 596. 49 Geo. 3, c. 77, enclosing the locus in quo, and the General Enclosure Act, 41 Geo. 3, c. 109, do not extinguish the right to take water from a well. Race v. Ward, xc. 384 ; 7 E. & B. 384. Ssmble, nor the means of access. Ibid. 13 Geo. 2, c. 26, providing that the river to be made navigable, and all lands used by the company for the benefit of the navigation, should be vested in the company, gives them such an interest in the water itself as is interfered with by its abstraction. Medway Co. v. Romney, xcix. 575 ; 9 C. B. N. S. 575. Where the owner of the dominant and servient tenement conveys the former, with all its waters, easements, &c, the purchaser has a right, as against a sub- sequent purchaser of the servient tenement, to the land, with the waters remain- ing as they did at the time of the conveyance. Wardle v. Brocklehurst, cii. 1058; IE. &E. 1058. No action will lie for interfering with water percolating, underground, into a well, or for abstracting water already collected in such well by percolation. New River Co. v. Johnson, cv. 436 ; 2 E. & E. 436. Canal company cannot recover for injury caused by mining under them, when they have not inspected or given notice of refusal, under 16 Geo. 3, c. 28. Nav- igation Co. o. Dudley, cvii. 409 ; 3 E. & E. 409. Right of mine owner to have the water from his mine flow into an adjoining mine. Baird v. Williamson, cix. 376 ; 15 C. B. N. S. 376. Abstraction of water, in rivulet, fed by underground springs, by reason of erec- tion of sewer, gives no right at common law to damages. Regina v. Board of Works, cxiii. 710 ; 3 B. I S. 710. Nor under 11 & 12 Vict. c. 112, ss. 50, 69. Ibid. Right of digging clay sufficient occupation to entitle one to claim a right to a watercourse, under Prescription Act, 2 & 3 Wm. 4, c. 71. Gaved v. Martyn, cxv. 732 ; 19 C. B. N. S. 732. When such right is precarious, because only existing by permission of the owner, it is not sufficient. Ibid. The right must have been acquired under circumstances to show that it was intended to be of a permanent character. Ibid. When channel has been dug and used, without interruption, for over twenty years, even though water was collected in land subject to the rights of tin bounders, it is sufficient. Ibid. But, where water is brought artificially to the surface by the miners, and not abandoned by them, such a claim is not good. Ibid. Distinction between natural and artificial streams discussed and considered : per Erie, C. J. Ibid. Injuriously affecting a watercourse, by local board, without consent, is not a subject of compensation, under 21 & 22 Vict. c. 98, but a ground for an action. Regina v. Darlington, cxvii. 515 ; 5 B. & S. 515. Affirmed in Ex. Ch., cxviii. 562 ; 6 B. & S. 562. WATERS AND WATERCOURSES, IV. WAY, I. 475 IV. Bridges. Land tax on bridge tolls not a parochial rate or assessment. "Waterloo Bridge Co. v. Cull, cii. 213 ; 1 E. & B. 213. For the purpose of this tax, the bed of a river, as far as the middle, belongs to the parish ou the adjacent shore. Ibid. "Bridge," within s. 72, of 27 & 28 Vict. c. 3. Ward v. Gray, cxviii. 345 : 6 B. &S. 345. "" WAY. I. Generally. V. Extinction of right of Way. II. Dedication to the public. YI. Of particular statutes. III. Obstruction of Way. VII. Surveyor of highways. IV. Duty to repair. I. Generally. Statute requires user as of right for forty continuous years next before suit. Battishill v. Reed, lxxxvi. 696 ; 18 C. B. 696. Defeated by occupation of both properties by one tenant within the forty years. Ibid. Where several parishes maintaining their own highways are comprised within district assigned to local board of health, the highwavs are to be maintained by a general district rate. Moseley v. Local Board of tlealth, lxxxviii. 518 : 6 E. & B. 518. The presumption that the soil of a road usque ad medium filum vim, belongs to the owners of the adjoining lands, applies to a private as well as a public road. Holmes v. Bellingham, xcvii. 329 ; 7 C. B. N. S. 329. In conveyance of a close abutting on a highway, with description by measure- ment and plan, the presumption is that it carries the soil of the highway usque ad medium filum. Berridge v. Ward, c. 400; 10 C. B. N. S. 400. On a devise of landlocked lands, in reaching which the testator has used a way over his other lands, there is an implied devise of a right to this way by necessity. Pearson v. Spencer, ci. 571 ; 1 B. & S. 571. A right of way not a continuous and apparent easement, in case of partition, will not pass as incident to separate enjoyment of pasture land severed, nor will it pass under word " appurtenances." Worthington v. Gimson, cv. 618 ; 2 E. & E. 618. Am. Ed. note. Ibid. No presumption of ownership of soil by reason of right of way. Smith v. Howden, cviii. 398 ; 14 C. B. N. S. 398. Reversioner not liable for accidents occurring on private way during term, by reason of its dangerous condition at the time of the letting. Bobbins v. Jones, cix. 221 ; 15 C. B. N. S. 221. And not for injuries to persons passing, through the falling of an area adjoin- ing a public way, caused by the wear and tear of public user, which area was in existence at the time of the dedication of the way. Ibid. A parol demise of land, with a right of way appurtenant to it, will pass the right of way. Skull v. Glenister, cxi. 81 ; 16 C. B. N. S. 81. But the person so possessed of a right of way cannot use it for the purpose of foing to another close, even though he go first to the one where he has a right, bid. What sufficient to constitute in deed. Wood ». Stourbridge Railway Co., cxi. 222; 16 C. B. N. S222. Excavation on land, to make owner liable for accident, must be adjoining public way. Binks v. S. Y. Railway Co., cxiii. 244 ; 3 B. & S. 244. Right of way, where there is no necessity, but a necessary dependence of parts for the enjoyment in the state in which it is devised, construed to exist. . Pearson v. Spencer, cxiii. 761, f ; 3 B. & S. 761, f ; affirming s. c, ci. 571 ; 1 B. & S. 571. 476 WAY, II, III. II. Dedication to the public. Where a road commenced under Turnpike Act, since expired, was never com- pleted, but was used by the public and repaired by the parish, held, evidence of being highway repairable by parish. Begina v. Thomas, xc. 399 ; 7 E. & B. 399. An appeal lies to the Quarter Sessions from an order of the justices, under 5 & 6 Wm. 4, c. 50, s. 23, that a dedicated highway is not of sufficient utility. Begina v. Justices of Derbyshire, xcvi. 69 ; E., B. & E. 69. User of substituted road, by reason of obstruction of the old way, is no evi- dence of dedication. Dawes v. Hawkins, xcviii. 848 ; 8 C. B. N. S. 848. A dedication must be in perpetuity. Ibid. The public cannot release its right by non-user. Ibid. An obstruction in a public way, existing at time of dedication, is not a nui- sance by reason of its continuance for which the dedicator is liable. Fisher v. Prowse, ex. 770 ; 2B.&S. 770 ; Bobbins v. Jones, cix. 221 ; 15 C. B. N. S. 221. A road dedicated to the public must be made to the satisfaction of the sur- veyor, under 5 & 6 Wm. 4, c. 10, s. 23, to make inhabitants liable for repairs. Begina v. Dukenfield, cxvi. 158 ; 4 B. & S. 158. Under 11 & 12 Vict. c. 63, s. 70, a road or street dedicated to the public within a district, within the act, must be made to satisfaction of local board of health, to make them liable. Ibid. Under last statute, by sect. 117, local board is surveyor. Ibid. III. Obstruction or way. A space over which the public have only a limited right is not a street, within the meaning of 18 & 19 Vict. c. 120. Le Neve v. Mile End Old Town, xcii. 1054 ; 8 E. & B. 1854. Nor is a movable shed on such a space, on the other side from the house, of a paved footway, an obstruction, within that act. Ibid. Driving to the left, at night, though a lamp to the right, is not concurrent negligence, preventing recovery for injury caused by an obstruction. Arthy v. Coleman, xcii. 1092 ; 8 E. & B. 1092. Case lies against one who, with the permission of the owner of a private road, negligently obstructs it, by means of which the horse of the plaintiff, lawfully using it, is injured. Corby v. Hill, xciii. 556 ; 4 C. B. N. S. 556. No obstruction when in existence at time of dedication of highway. Fisher v. Prowse, ex. 770; 2 B. & S. 770 ; Bobbins v. Jones, cix. 221 ; 15 C. B. N. S. 221. Power of j ustices for removal, under 5 & 6 Wm. 4, c. 50, s. 73. Williams v. Adams, ex. 312; 2 B. & S. 312. Obstruction of a highway how far subject of compensation to private individ- uals. Chamberlain v. W. E. & C. P. Bailway Co., ex. 605 ; 2 B. & S. 605. Bule in the United States. Am. Ed. note. Ibid. Persons laying down L tramway, found by the jury to be a nuisance in ob- structing the highway, are liable criminally. Begina v. Train, ex. 640 ; 2 B. & S. 640. Obstruction of road, for which an action would lie if without authority, subject of compensation under Lands Clauses Consolidation Act 1845. Wood ». Stour- bridge Bailway Co., cxi. 222; 16 C. B. N. S. 222. User of part of highway by innkeeper for twenty years for purposes of trade, does not prevent it being an obstruction of the highway. Gerring v. Barfield, cxi. 597 ; 16 C. B. N. S. 597. Costs of indictment for non-repair of highway, when payable out of highway rate, under 5 & 6 Wm. 4, c. 50, s. 95. Begina v. Haslemere, cxiii. 313 ; 3 B. & S. 313. In atjlaim for right of way by user, under 2 & 3 Wm. 4, c. 71, a failure to bring suit for a year, is not necessarily acquiescence in an interruption. Benni- son v. Cartwright, cxvii. 1 ; 5 B. & S. 1. Declarations of a former owner of the dominant tenement, showing that cer- tain acts about to be done by him were done, with a claim of right, are admissible. Ibid. The highway board may charge the expense of a prosecution of a person for WAY, III., IV., V. 477 obstructing the way against the parish in which the obstruction existed. • Regina v. Heath, cxviii. 578 ; 6 B. & S. 578. An action for a nuisance for obstructing a footway is local. Richardson v. Locklin, cxviii. 777 ; 6 B. & S. 777. IV. Duty to kepair. Where a road commenced under Turnpike Act, since expired, was never com- pleted but was used by the public and repaired by the parish, held, evidence of being highway repairable by parish. Regina v. Thomas, xc. 399 ; 7 E. & B. 399. Highways within a district must be repaired by a district rate and not a high- way rate, though the district composed of one parish. Taff Vale Railway Co. v. Cardiff Board of Health, xcii. 535 ; 8E. & B. 535. Under 5 & 6 Wm. 4, c. 50, s. 95, the justice has no discretion to inquire as to liability to repair a highway, but must order an indictment to be preferred against party charged. Regina v. Arnould, xcii. 550 ; 8 E. & B. 550. The liability to repair a highway by reason of enclosure of adjoining lands is not in the owner who is not occupier. Regina v. Ramsden, xcvi. 949 • E., B. & E. 949. No such liability where the highway is not immemorial or where the enclosed land was not before used as a passage. Ibid. Under 20 Geo. 2, c. 22 and 20 Geo. 3, c. 32, authorizing an individual to build s public bridge, and in consideration of his expense in building and repairing, to take the tolls, he is bound to keep in repair as long as he takes the tolls. Nicholl v. AUen, ci. 916 ; 1 B. & S. 916. Where there has been previous acquittal there cannot be second indictment, under 5 & 6 Wm. 4, c. 50, s. 95, for not keeping highway in repair. Ex parte Bartlett, cvii. 253 ; 3 E. & E. 253. Parish must keep in repair where danger arises from flagging and grating over area in existence at time of dedication. Robbins v. Jones, cix. 221 ; 15 C. B. N. S. 221. Where highway rate taken for repair of turnpike, under 4 & 5 Vict. c. 59. Roberts v. Roberts, cxiii. 183 ; 3 B. & S. 183. Liability to indictment of parish for non-repair, under 5 & 6 Wm. 4, c. 50, s. 75, and 23 & 24 Vict. c. 68. Regina v. James, cxiii. 901 ; 3 B. & S. 901. Under 8 & 9 Vict. c. 20, s. 58, a railway company may be compelled to repair a highway if used in carrying materials, though in the carts of contractors. W. & G. Railway Co. ». Wakefield, cxvii. 478 ; 5 B. & S. 478. Under sect. 46 of 8 & 9 Vict. c. 20, a railway which, in crossing a highway by means of a bridge, lowered the level of the highway, is not bound to keep the slope of the road in repair. L. & N. W. Railway Co. v. Skerton, cxvii. 559 ; 5 B. & S. 559. Under 25 & 26 Vict. c. 61, the court cannot direct the costs on an indictment for non-repair against the inhabitants of a parish, to be paid by them, where a jury has found that the road was not a highway. Regina v. Buckland, cxviii. 397 ; 6 B. & S. 397. V. Extinction of right of Way. Parol agreement to substitute a new way for an old one, and a discontinuance of the use of the latter, afford no evidence of abandonment. Lovell v. Smith, xci. 120 ; 3 C. B. N. S. 120. Prima facie, one who is lord of the manor and owner of the adjacent lands on both sides of a turnpike, is owner of the soil of the road. M. of Salisbury v. G. N. Railway Co., xciv. 174 ; 5 C. B. N. S. 174. There is nothing in 8 & 9 Vict. c. 20, and 3 Geo. 4, c. 126, affecting the owner- ship of the soil in an old turnpike road, where a new one has been substituted by a railway company. Ibid. A deed describing the exact contents of lots on opposite sides of a turnpike, without mentioning the soil of the road, both parties supposing the title to be vested in the trustees, does not convey it. Ibid. Justices cannot, under 5 & 6 Wm. 4, c. 50, order a highway to be closed because another road, not yet made, will be nearer or more commodious. Regina v. Midg- ley, cxvii. 621 ; 5 B. & S. 621. 478 WAY, V., VI. On appeal to Quarter Sessions from an order directing some roads to be diverted and others closed, the court may confirm as to some and quash as to others. Ibid. VI. Or PARTICULAR STATUTES. Highway Act, 5 & 6 Wm. 4, c. 50, does not apply to road made by turnpike trustees. Regina v. Thomas, xc. 399 ; 7 B. & B. 399. S. 24 of 5 & 6 "Wm. 4, c. 50, contemplates the erection of posts by the side of a foot or horse way running parallel to a carriage way and not at its extremity. Ellis v. Woodbridge, xcviii. 290; 8 C. B. N. S. 290. The enclosure commissioners, under 8 & 9 Vict. c. 118, may order valuer to set out a private road over land allotted to an individual by the provisional order. Grubb v. Enclosure Commissioners, xcix. 612; 9 C. B. N. S. 612. Affirmed in Ex. Ch., cvi, 805 ; 13 C. B. N. S. 805. What is a highway, within s. 69 of the Public Health Act, 11 & 12 Vict. c. 63. Wallington v. White, c. 128 ; 10 C. B. N. S. 128. 5 & 6 Wm. 4, c. 49, s. 76, only applies where right of way previously existed. Harrod v. Worship, ci. 381 ; I B. & S. 381. 4 & 5 Vict. c. 59, applies to turnpike roads not in existence at the time of its passage. Sunk Island Turnpike v. Patrington, ci. 747 ; 1 B. & S. 747. A turnpike trust is within the act, though the funds be derived from other sources as well as from tolls. Ibid. A highway, under 5 & 6 Wm. 4, c. 50, s. 69, is one of which the public are in actual enjoyment. Chapman v. Robinson, cii. 25 ; 1 E. & E. 25. 10 & 11 Vict. c. 34, s. 53, applies only if the street has never before been sufficiently paved. G. W. Railway Co. v. West Bromwich, cii. 806 ; 1 E. & E. 806. Where there has been previous acquittal there cannot be second indictment, under 5 & 6 Wm. 4, c. 50, s. 95, for not keeping highway in repair. Ex parte Bartlett, cvii. 253 ; 3 E. & E. 253. Under 5 & 6 Wm. 4, c. 50, s. 73 (for removal of obstructions to highway), justices have power to decide whether it is a highway or not. Williams v. Adams, ex. 312 ; 2 B. & S. 312. In such case the title to the land does not come in question. Ibid. What not " wheeled carriage," within Turnpike Act, 3 Geo. 4, c. 126, s. 121. Radnorshire C. R. Board v. Evans, cxiii. 400 ; 3 B. & S. 400. Cattle placed on highway to graze, under care of servant, are not turned loose, within 2 & 3 Vict. c. 47, s. 54. Sherborn v. Wells, cxiii. 784 ; 3 B. & S. 784. What not a stage-coach, within Local Act, 10 Geo. 4, c. 110, s. 9. Eatwell v. Richmond, cxiv. 364 ; 18 C. B. N. S. 364. What a stage-coach conveying goods for pay or reward, within Local Act, 6 Geo. 4, c. 143, s. 10. Comley v. Carpenter, cxiv. 378 ; 18 C. B. N. S. 378. Provisions of 25 & 26 Vict. c. 102, s. 98, do not apply to an old lane where the buildings abutted in the rear upon the lane. Board of Works v. Cox, cxv. 445 ; 19 C. B. N. S. 445. The street, upon which the houses front, is the only one required to be of the prescribed width. Ibid. Under Local Act, 3 Geo. 4, c. 55, ss. 39, 40, a vehicle occasionally carrying passengers not liable as a stage-coach to return tolls. Pearson v. Tazewell, cxv. 384; 19 C. B. N. S. 384 ; Bad order for diversion of highway, under 5 & 6 Wm. 4, c. 50, ss. 84, 85. Wright v. Frant, cxvi. 118 ; 4 B. & S. 118. Highway Act, 5 & 6 Wm. 4, c. 50, does not apply to highways, under 9 & 10 Vict. c. 349 (Tunbridge Improvement Act). Ibid. Meeting of inhabitants, under s. 84 (Highway Act) must be of those liable to contribute to repair of road. Ibid. The commissioners, under 10 & 11 Vict. c. 34, are bound to place fences along footways for the protection of passers, and if negligent therein may be sued without affirmatively showing money in their hands. Ohrby v. Ryde Commis- sioners, cxvii. 743 ; 5 B. & S. 743. The words " level" and "flag" in s. 69 of 11 & 12 Vict. c. 63, do not authorize the raising of the grade of the street to correspond with that of others crossing it. Caley v. Hull, cxvii. 815 ; 5 B. & S. 815. WAY, VI., VII. "WHARFINGER. 479 One who comes into court and pleads guilty to an indictment does not make a " defence," within 5 & 6 Wm. 4, c. 50, s. 98, entitling prosecutor to costs. Re- gina v. Denton, cxvii. 822 ; 5 B. & S. 822. Time at which the first meeting of a highway board after the formation of a district shall be held, under 27 & 28 Vict. c. 101, s. 12. Regina v. Lindsev oxviii. 892; 6 B. & S. 892. & *' VII. Surveyors op highway. Not bound to repair turnpike. Regina v. Trafford, Ixxxv. 967 ; 5 B. & B. 967. May charge such expenses for carrying on suits as are either agreed to at a vestry or allowed by two justices, under 5 & 6 Wm. 4, c. 50, s. 111. Townsend ». Read, c. 308 ; 10 C. B. N. S. 308. What will constitute " an outgoing surveyor," under 5 & 6 Wm. 4, c. 50, ss. 42, 43 and 25 & 26 Vict. c. 61, ss. 11, 43. Highway Board v. Hardcastle, cxv. 177 ; 19 C.B.N. S. 177. Liability of such surveyor to account to Highway Board. Ibid. WEIGHTS AND MEASURES. Justices of the Quarter Sessions for the county of Sussex have the power of appointing the inspector of weights and measures for Brighton. Duly v. Shar- wood, lxxxviii. 830 ; 6 E. & B. 830. " Any inspector," in 5 & 6 Wm. 4, c. 63, s. 25, means all inspectors, county and city. Regina v. Skelton, cii. 816 ; 1 E. & B. 816. Earthenware jugs or drinking cups used, but not stamped, as measures are such, within 5 & 6 Wm. 4, c. 63, s. 21. Regina v. Aulton, cvii. 568 ; 3 B. & E. 568. Such measures are liable to forfeiture, and person in whose possession found to penalty of said act. Ibid. What is a correct weighing machine in proceeding, under 5 & 6 Wm. 4, c. 63. s. 28. L. & N. W. Railway Co. v. Richards, ex. 326 ; 2 B. & S. 326. WHARFINGER. May insure goods of his customers. Waters v. Assurance Co. , lxxxv. 870 ; 5 E. &B. 870. Lien of dock company, under 10 4 11 Vict. c. 27, s. 45 and s. 3. Dresser v. Bosanquet, cxvi. 460, 486 ; 4 B. & S. 460, 486. Act of Parliament depriving dock company of common law right of lien. Ibid. 480 WILLS, I.— IV. WILLS. I. Requisites of Will. (c) By what words an estate tail II. Revocation. passes. III. Republication. (d) Life-estate. IV. What passes under. (cj Estates by implication. V. The devisee. (/) Other estates. VI. Estates created. VII. Construction. (a) When trustees take the fee. VIII. Vested interest and vesting of. (6) By what words the fee passes. IX. Evidence. X. Executory devise. I. Requisites op Will. An unattested paper referred to in a will, and properly identified, may be adopted as part of an attested will. Dickinson v. Stidolph, ciii. 341 : 11 C. B. N. S. 341. Where a codicil refers to two memorandums, and only one is found, effect must be given to that which is found. Ibid. A will seventy years old, coming from custody of a person entitled under it to an estate for life, who had treated it as his title deed, is produced from proper custody. Andrew v. Motley, civ. 514; 12 C. B. N. S. 514. Semble, where attestation clause recites compliance with all requisite ceremonies, proof of handwriting of one witness, and death of all, is sufficient proof of a will thirty years old. Per Williams, J. Ibid. II Revocation. A will cannot be revoked by mere abandonment. Andrew v. Motley, civ. 514 : 12 C. B. N. S. 514. Declarations of decedent of existence of missing will and codicil, made up to within a few days of death, admissible to rebut presumption of destruction by testator. Whiteley v. King, cxii. 756 ; 17 C. B. N. S. 756. III. Republication. A duly-attested codicil, though it relate only to personalty, republishes the will so as to pass lands acquired in the interval between the attestation of the will and codicil. Dickinson v. Stidolph, ciii. 341 ; 11 C. B. N. S. 341. IV. What passes under. Where properties are found which the words of description exactly fit, the de- vise is limited to them. Webber v. Stanley, cxi. 698 ; 16 C. B. N. S. 698. Hence, where certain property in county of Hants was devised, and the descrip- tion under the will was applicable to that alone, the devise could not be extended by extrinsic evidence. Ibid. The application of the words of a will to the person or thing described, is the operative construction and is for the court. Ibid. For the purpose of such construction, the court must be informed of surround- ing circumstances, when will was made. Ibid. Doctrine of false demonstration explained. Ibid. Words '' now in occupation of," applicable to devise of land, will not pass the right to the use of a pump on adjoining property of devisor as appurtenant to land devised. Polden v. Bastard, cxvi. 257 ; 4 B. & S. 257. Semble, that a continuous easement, as a flow of water to the cottage, would pass by these words. Ibid. Otherwise, it is necessary to show an intention of the devisor to create the easement de novo. Ibid. Purchaser of copyhold, under power in will, entitled to admission without previous admission of executor or heir.. Regina v. Wilson, cxiii. 201 ; 3 B. & S. 201. Devise of rent charged on land of testator, free from income tax, not within 5 & 6 WILLS, IV.— VI., (