Common Law..

Held, that the defendant, the execution creditor, might set up, by way of answer, a
prior bill of sale to a third party. Gadsden v. Barrow, 543.

JOINT OBLIGEES.

See APPRENTICE.

JOINT OWNER.

1. Authority of One.] Detinue for documents of the plaintiff. Plea, that they were
delivered to the defendant by persons jointly interested in them with the plaintiff;
that the said persons never demanded them back; and that the defendant held with
their consent. The evidence was, that the plaintiff was a shareholder and purser in
the B. Mining Company, and that he had delivered the documents to the defendant,
an accountant, in pursuance of a resolution of the shareholders, in order that the
defendant might report on the state of the company's affairs, and that the plaintiff in
his own name, and not on behalf of the other shareholders, had demanded them
back: :-

Held, that the plea raised a good defence, and was proved. Atwood v. Ernest, 262.
2. Power of One.] After the bankruptcy of one of two joint owners of goods, the
solvent joint owner may authorize the sale of the goods, and the broker who sells
pursuant to such authority, may set it up as a defence in an action by the assignees
of the joint owner who has become bankrupt, under the plea of non detinet. Mor-
gan v. Marquis, 394.

3. Estoppel.] The circumstance that the broker was in the first instance employed by
the bankrupt, and had no knowledge of any other person being interested in the
goods, is immaterial, nor is the broker estopped from setting up the joint ownership
by having sent to the assignees an account in which the goods were stated to have
been sold for the bankrupt alone. lb.

JUDGMENT.

1. In County Court] The decision of the Court of Queen's Bench, in Berkley v. El-
derkin, 1 El. & Bl. 805; s. c. 18 Eng. Rep. 377, that an action cannot be maintained
in a superior court on a judgment obtained in a county court constituted under the
9 & 10 Vict. c. 95, ought to be followed by courts of coördinate jurisdiction with the
Queen's Bench. Austin v. Mills, 491.

2. Action on.] An action cannot be maintained for the cause of action in respect of
which judgment has been recovered in such a county court. Ib.

Uses and Occupation.] In an action for use and occupation of a house, the under-
sheriff directed the jury that actual occupation by the defendant was not necessary to
support the action, but that a constructive occupation would do, but did not tell them
what a constructive occupation was:-

Held, a misdirection. Towne v. D'Heinrick, 235.

Obligation of Former.]

See NUISANCE.

See COVENANT. EJECTMENT.

LARCENY.

1. Proof of Act.] The prisoner was found coming out of a warehouse, where a large
quantity of pepper was kept, with pepper of a similar quality in his possession. He
had no right to be in the warehouse, and on being discovered said, "I hope you will

Common Law.

-

not be hard with me," and took some pepper out of his pocket and threw it upon the
ground. There was no evidence of any pepper having been missed from the bulk;
Held, that there was sufficient evidence to go to the jury of the corpus delicti. Regina
v. Burton, 551.

2. Regina v. Dredge, 1 Cox's C. C. 235, considered. Ib.

3. Master and Servant.] It was the prisoner's duty, as bailiff to the prosecutor, to pay
and receive moneys. Upon an account rendered of such payments and receipts, it
appeared he had charged his master with five payments of 11. 8s., instead of il. 48.,
the sums he had actually paid. There was also a similar overcharge of two other
Held, that the prisoner was wrongly convicted of larceny, the offence, if any, being
that of obtaining money by false pretences. Regina v. Hewgill, 556.

amounts:-

4. Possession.] The prisoner was sent with his master's cart for some coals. The
coals were delivered to the prisoner and deposited in the cart, their price being
entered to the master's account. On the road home the prisoner disposed of a por-
tion of the coals:-

Held, that this was larceny of the coals, and not embezzlement, the prisoner having
determined his exclusive possession of the coals when they were deposited in the
cart, and the possession from that time being in the master. Regina v. Reed, 562.
5. Subject of Chose in Action.] An agreement, although unstamped, is a chose in action,
and therefore not the subject of larceny, Parke, B., dissentiente. Regina v. Watts,

573.

6. Unstamped Agreement.] The prisoner was indicted for stealing a piece of paper.
At the time it was stolen, the paper contained a signed agreement between the
prosecutor and the prisoner, but it was unstamped, although of the value of 201.
The original was not produced at the trial, but a copy was given in evidence. The
agreement was a building contract, and all moneys due under it, except some extras,
had been paid; but the work was still going on:-

Held, (Parke, B., dissentiente,) that the piece of paper, at the time it was taken, was
a chose in action, and not the subject of larceny. lb.

See EMBEZZLEMENT.

LAW AND FACT.

See INSURANCE.

LEASE.

See COVENANT.

LIBEL.

See COSTS. SLANDER.

LIFE INSURANCE.

Warranty-False Statements.] F. proposed his life for insurance, and signed a form of
"proposal," which contained his answers to twenty-seven questions, the 21st and 22d
of which were as follow: 21. Did any of the party's near relations die of consump-
tion, or any other pulmonary complaint? Answer, No. 22. Has the party's life
been accepted or refused at any office, &c.? Answer, No." The proposal also con-
tained the following agreement: "I hereby agree that the particulars mentioned in
the above proposal, shall form the basis of the contract between the assured and the
the company; and if there be any fraudulent concealment or untrue allegation con-
tained therein, or any circumstance material to this insurance shall not have been
fully communicated to the said company, or there shall be any fraud or misstatement,
all money which shall have been paid on account this insurance, shall become for-
feited, and the policy be void." The policy contained a warranty on the part of
F. as to most of the facts replied to in the proposal, but not as to questions 21 and 22.
It then provided that the policy should be null and void, and all moneys paid by F.
forfeited, upon F. dying in certain enumerated modes, "or if any thing so warranted

Common Law.

as aforesaid shall not be true, or if any circumstance material to this insurance shall
not have been truly stated, or shall have been misrepresented or concealed, or shall
not have been fully and fairly disclosed and communicated to the said company, or
if any fraud shall have been practised upon the said company, or any false statement
made to them in or about the obtaining or effecting of this insurance." Upon an
action on the policy against the company, it appeared that the answers to questions
21 and 22 were not true:-

Held, reversing the decisions of the Courts of Exchequer and Exchequer Chamber in
Ireland, that the judge was wrong in directing the jury, that if they found the state-
ments both false and material, they should find a verdict for the defendant; and that
the questions which the judge ought to have left to the jury were, first, were the state-
ments false; and, secondly, were they made in obtaining or effecting the policy. An-
derson v. Fitzgerald, 1.

2. Observations on the form of this policy, and its ambiguity, and the effect of making
some of the statements in the proposal matters of warranty. Per Lord St. Leo-
nards. Ib.

LIMITATIONS.

1. Part Payment by Bill.] Where a bill of exchange is delivered by a debtor to
his creditor, in payment on account of a larger sum then due, under such circum-
stances as to raise the implication of a promise to pay the remainder, it amounts to
a payment within the meaning of the exception in the 9 Geo. 4, c. 14, s. 1, and an-
swers the Statute of Limitations, as from the time of such delivery, whether the bill
be subsequently honored or not. Turney v. Dodwell, 92.

2. Foreign Creditor.] A foreigner who has never been in this country, having a cause
of action which accrued to him while abroad, against a person in this country, has
six years within which to bring an action in this country, from the time he first comes
to this country. Lafonde v. Ruddock, 239.

3. Action for Calls.] In an action for calls, a plea, that the action was on contracts
without specialty, and that the causes of action did not accrue within six years:
Held, issuable; but afterwards,

Held bad on demurrer. Cork and Bandon Railway v. Goode, 245.

4. Quare, whether a plea that the shares were forfeited, and that the company had
received sufficient thereupon to pay the calls, is issuable. Ib.

5. Acknowledgment.] W. J., who had previously lent to the plaintiff 2007., which was
secured by the promissory note of the plaintiff and two sureties, had goods from the
plaintiff's shop to the value of 17. The plaintiff, on remitting to W. J. 101. for in-
terest on the money borrowed, sent in with it his bill for 177. for the shop goods.
W. J. answered "I beg to acknowledge the receipt of 107. cash and the bill
amounting to 177., both of which sums I have placed to your credit. I have inclos-
ed your bill; receipt it, and return it me by post." After the death of W. J., and
more than six years after the supplying of the goods, and after one of the sureties
had paid the defendants the amount of the promissory note, the plaintiff sued the
defendants as representatives of W. J., to recover the 177. The defendants relied
on the Statute of Limitations: ·
:-

Held, that the letter of W. J. was a sufficient acknowledgement to take the case out
of the statute. Evans v. Simon, 420.

Contract.] The plaintiff contracted for the purchase of an estate from the defendant
and paid a deposit, on the terms that unless he objected to the title within a certain
time the same should be considered as accepted. No objection was made by him to
the title. The plaintiff, at the time of the contract and of the payment of the de-
posit, was a lunatic, incapable of understanding the meaning of a contract, or of

Common Law.

managing his affairs, and derived no benefit from the contract; but these facts were
unknown to the defendant, who made the contract with him fairly and bona fide, be-
lieving him capable of understanding the meaning of the same: --

Held, that the plaintiff was not entitled to recover the deposit, notwithstanding he was
a lunatic incapable of contracting or of understanding the meaning of contracts.
Beavan v. M'Donnell, 484.

1. Costs of] Although the costs of obtaining a writ of mandamus, where cause is
shown, are in the discretion of the court, yet they ought to be given to the success-
ful party, unless there are strong grounds to the contrary. Regina v. Harden, 167.
2. The guardians of the N. Union sued H. in the county court, for their expenses in
removing a nuisance, certain justices having made an order for its removal, under
the 11 & 12 Vict. c. 123, and which order H. had disobeyed. H. applied at cham-
bers for a prohibition, upon the ground that title to land would come in question.
The learned judge did not decide the question, but suggested an application to the
full court. This, however, was not made, although the county court judge himself
prepared a case. The cause was tried in the county court, and a verdict passed for
the plaintiffs. The judge, however, refused to make an order for payment. A
mandamus, against which H. had showed cause, was then obtained, mainly upon the
construction of the 11 & 12 Vict. c. 123, s. 3:-

Held, that there were sufficiently strong grounds for exempting the defendant from pay-
ment of the costs of obtaining the mandamus. Ib.

See PAUPER LUNATIC.

MANSLAUGHTER.

Negligence.] Trustees appointed, under a local act, for the purpose of repairing the
roads in a district, with power to contract for executing such repair, are not charge-
able with manslaughter, if a person, using one of such roads, is accidently killed in
consequence of the road being out of repair through neglect of the trustees to con-
tract for repairing it. Regina v. Pocock, 190.

MARINE INSURANCE.

See INSURANCE.

MASTER AND SERVANT.

1. Negligence.] The plaintiff employed the defendant to remove her goods in his
cart for hire. With the consent of the defendant's carman, the plaintiff got on the
cart with the goods, and on the way the cart broke down, and the plaintiff was
seriously injured, and her goods broken:-

Held, that the plaintiff was not entitled to recover damages for the personal injury.
Lygo v. Newbold, 507.

2. Liability.] The plaintiff was a guard in the service of the defendants, a railway
company, and his duty was to attach certain carriages to the engine of a goods train,
and to despatch the same within a certain time, so as to avoid collision with a passen-
ger train. In consequence of the plaintiff's not having had another person to assist
him, the engine started, threw him upon the rails, and a truck passed over his arm.
The plaintiff for three months previously had done the same work without any
assistance, and without making any objection:-

Held, in an action by the plaintiff against the defendants for compensation for the
injury, that the plaintiff having voluntarily undertaken the duty, was not entitled to
recover. Skip v. Eastern Counties Railway Co. 396.

Common Law.

3. Hiring - Time of Service.] The plaintiff was engaged by the defendants to super-
intend their smelting works in Spain, by the following letter: "We shall require
you to enter into an engagement for at least three years, at our option, at a salary
of 250l. 66 We should further require you to visit some of the principal smelting
establishments in England, and go out by way of Gibraltar, which is the shortest."
The plaintiff commenced visiting the smelting establishments on the 1st February,
1850, and shortly after sailed for Spain, where he served the defendants up to the
middle of February, 1851, and was then dismissed by them :-

Held, that this was a contract binding the plaintiff to stay three years, and giving the
defendants the option of determining the service at the end of each year, and, there-
fore, that the defendants having dismissed the plaintiffs after the commencement of a
current year, were bound to pay his salary for that year.

Held, also, (Parke B., dubitante,) that the service commenced on the 1st of February.
Down v. Pinto, 503.

Action by Servant.]

See SHIPS AND SHIPPING.

CHARTER.

Of Vessel - Power to Borrow Money.] See SHIPS AND SHIPPING.

The defendant kept a room which was used as a supper room and place of general re-
freshment, there being at the end of it a raised platform, on which stood a piano, and
where songs were constantly sung. Programmes of the performance were laid about
in different parts of the room. The company was respectable, and no money was
paid for admission, nor any extra charge made for the articles consumed there. An
action having been brought for a penalty under the 25 Geo. 2, c. 36, relating to
public dancing, music, &c., the judge directed the jury to say whether the room was
used for the purpose of supplying refreshments in the manner of an hotel, the music
and singing being incidental merely, or whether it was used principally for musical
performances; and ultimately he directed them to consider whether the room was
used for both purposes, in which latter case the plaintiff would be entitled to the
verdict. The jury found that the room was used for the purposes of an hotel, and
found a verdict for the defendant: -

Held, that although the verdict might be against the evidence, there was no misdirection.
Hall v. Green 507.

Held, also, (dissentiente Martin, B.,) that it would have been a misdirection in the judge
to state that the question was, whether the keeping of the room as an hotel was the
principal or secondary object. Ib.

See EXCEPTIONS.

MONEY HAD AND RECEIVED.

See ASSUMPSIT.

MONEY PAID.

1. Recovery back.] Where an insolvent is adjudged to be discharged as to a particular