Common Law.

creditor at a future period, and is arrested by that creditor, a payment of part or all
of the debt to obtain his discharge from the arrest, is valid, although a fresh security
given under the same circumstances would be invalid. Viner v. Hawkins, 437.

2. Quare, whether money paid under such invalid security can be recovered back?
Ib.

See CONTRIBUTION.

NECESSARIES.

See HUSBAND and Wife.

NEGLIGENCE.

1. Action for.] The plaintiff employed the defendants to sell some houses by auction,
and to prepare a description of the houses. They describe two of the houses as con-
taining three stories, whereas they contained only two. The purchaser of those two
houses compels the plaintiff, under one of the conditions of sale, to make him com-
pensation for the misdescription. The plaintiff brings an action against the defend-
ants, the auctioneers, for the sum he had been compelled to refund to the pur-
chaser:-

-

Held, that he was entitled to recover it. Parker v. Farebrother, 237.

2. Of Attorney.] A trader petitioned the Court of Bankruptcy, under the 211th sec-
tion of 12 & 13 Vict. c. 106; and an order for the official assignee to take possession
of his estate, was made under the 213th section. An attorney, having notice of
these proceedings, upon an assurance from the defendant, a creditor, that all the
creditors of the bankrupt would concur, and being instructed by him, drew a deed
of settlement:-

Held, that as such deed might have been operative if all the creditors had concurred,
the attorney was right in drawing the deed. Lewis v. Collard, 367.

See MANSLAUGHTER. MASTER AND SERVANT.

NEW TRIAL.

NUISANCE.

1. Verdict against Evidence.] The fact that the verdict is against the evidence is no
ground for a new trial in a penal action. Hall v. Green, 507.

2. Surprise - Affidavit. An affidavit on which to found a motion for a rule nisi, on
the ground of surprise, should state, not only that the evidence adduced at the trial
was unexpected, but that the party on whose behalf the application is made, would
have been prepared, had it not been for the surprise, with evidence to contradict the
evidence adduced. Walter v. Brandeis, 245.

3 Small Damages.] A new trial will not be granted on the ground that from the
small amount of damages the jury must have come to a compromise, unless, from the
circumstance of the case, it is evident that there has been a total refusal on the part
of the jurors to discharge their duty, and the verdict is necessarily wholly inconsist-
ent. Richards v. Rose, 406.

NON COMPOS.
See LUNATIC.

NONSUIT.

The 8 & 9 Vict. c. 87, s. 117 (Customs Consolidation Act) enacts, that no writ shall
be sued out against any officer of the customs or against any person acting under
the direction of the Commissioners of her Majesty's Customs for any thing done in
the execution of or by reason of his office until a month's notice of action shall have
been given, stating the cause of action, &c. The 118th section enacts, that no plain-
tiff, in any case where an action shall be grounded on any such act done by the
defendant, shall be permitted to produce any evidence of the cause of such action,
except such as shall be contained in the notice to be given as aforesaid, or shall re-
ceive any verdict against such officer or person unless he shall prove on the trial of

Common Law.

such action that such notice was given; and in default of such proof the defendant
in such action shall receive a verdict with costs, as hereinafter mentioned:
:-
Held, that, upon the trial of an action against an officer of the customs, it is the duty
of the judge, unless the facts are admitted, to hear the evidence, and decide whether
the defendant did the act complained of honestly believing that his duty called upon
him to do it, in which case the provisions as to notice of action would be applicable.
Arnold v. Hamel, 547.

NUDUM PACTUM.

See CONTRACT.

NUISANCE.

Landlord and Tenant-Sewer.] The defendant had, more than twenty years before
the action, constructed a sewer or watercourse through property of his own, and
then occupied by him. In 1845, the defendant let a house, shop, and cellar to the
plaintiff, which the defendant down to that time also occupied with the property. In
1851, the sewer or watercourse burst, and thereby the plaintiff's cellar and goods
were damaged; and the plaintiff thereupon brought an action against the defendant
for negligently and improperly making and constructing the sewer, and keeping and
continuing the same negligently and improperly made and constructed, and so caus-
ing the damage. The jury found that the sewer was not originally constructed with
proper care, and it was proved that it had been continued in the same state :—
Held, that upon the letting of the premises to the plaintiff, a duty arose on the part of
the defendant to take care that that which was before rightful, did not become
wrongful to the plaintiff, because that would be in derogation of the defendant's own
demise to the plaintiff; and that upon this ground, as also upon the principle sic utere
tuo ut alienum non lædas, the action was maintainable. Alston v. Ġrant, 122.

The ancient parish of St. Giles-in-the-Fields was divided (under acts of Anne and Geo.
1 and Geo. 2, for the building, &c., of new churches) into two parishes, St. Giles-in-
the-Fields and St. George, Bloomsbury, which were made separate and distinct for
all purposes except as to church, highway, and poor-rates; and separate vestrymen
were appointed for the new parish. By stat. 11 Geo. 4, and 1 Will. 4, c. 10, for
regulating the affairs of the joint parishes of St. Giles and St. George, and of the
separate parishes of St. Giles and St. George, the vestry of each parish was to be
composed of forty-two persons, (besides the rector and churchwardens,) elected by
the vestrymen duly qualified; each vestry was to appoint its own churchwardens
and auditors, and make its own church rates, and to manage some other affairs of
the separate parish; and the vestrymen of the two parishes were to be the joint ves-
try of the parishes, and to appoint overseers and directors and other officers to ma-
nage the relief of the poor of the joint parish, to make its poor rates, and to exercise
other powers relative to the poor, and concerning the parishes jointly. Questions
before the joint vestry were to be decided by a majority of the vestrymen present:—
Held, that the parishioners of one of the parishes could not separately adopt the pro-
visions of Sir J. Hobhouse's Act, 1 & 2 Will. 4, c. 60, for the election of their own
vestry. Regina v. Basset, 193.

PARTNERSHIP.

See JOINT Owner.

1. Particulars of Objection.] Particulars of objections delivered under the 15 & 16
Vict. c. 83, s. 41, by a defendant in an action for an infringement of a patent, must
state the place at or in which the invention is alleged to have been used or published
prior to the date of the letters-patent, and no evidence of such prior user or publica-
tion will be admitted, if the particulars of objection are defective on this point.
Palmer v.Cooper, 468.

2. Infringement.] In an action for infringement of a patent, the court disallowed the
following plea that the plaintiff, having petitioned for letters-patent, represented to
the solicitor-general, to whom the matter was referred, that the invention consisted
of matters mentioned in a paper writing exhibited to the solicitor-general, (setting it
forth,) who, confiding therein, reported that the letters-patent might be granted;
that, after the grant of the letters-patent, the plaintiff enrolled his specification in
certain terms, and falsely described his invention therein; and that so much of the
invention as was stated in the specification, was not part of the invention in the paper
writing and letters-patent mentioned, and was not part of the invention for which
the letters-patent were granted. Ilancock v. Noyes, 510.

See ESTOPPEL.

PAUPER.

Charges to Union Fund.] An extra-parochial place was, by the 5 & 6 Vict. c. 48,
made liable to maintain its own poor, and afterwards comprised in W. Union. Cer-
tain paupers had lived all their lives in that place, and, as far as was known, neither
they nor their ancestors had any settlement elsewhere:-

Held, that, as these paupers were irremovable, because there was no place to which
they could be removed, and not by reason of the 9 & 10 Vict, c. 66, the charges of
relief must be borne by the place itself, and was not cast on the common fund of the
union, by the 11 & 12 Vict. c. 110, s. 3. Regina v. The Overseers of East Dean, 103.
1. No Settlement.] The 9 & 10 Vict. c. 66, extends only to render irremovable such
paupers as have a known settlement to which they would be liable to be removed in-
dependently of the provisions of that act; and the 11 & 12 Vict. c. 110, s. 3, casts upon
the common fund of the union the cost of relief of such paupers only. Regina v. Ben-
nett, 143.

2. Therefore, where paupers who had resided for upwards of five years in a place
which was formerly extra-parochical, but was in 1842 made a township by act of
parliament, and included in an union, and had acquired no settlement in that town-
ship or elsewhere, became chargeable thereto, the cost of their relief was not properly
charged on the common fund of the union. Ib.

PAUPER LUNATIC.

1. Seizing his Effects.] Under stat. 3 & 4 Vict. c. 54, s. 2, which, for the repayment
to parishes or counties of expenses incurred in the maintenance, &c., of criminal
lunatics, enables justices to order the overseers of any parish where money, goods,
or chattels, of the lunatic shall be, to seize the money, or seize and sell the goods and
chattels, justices cannot authorize the overseers to levy a debt claimed as due to the
lunatic, by ordering them to seize a sum of money in the possession of the alleged
debtor. Regina v. Longhorn, 175.

2. Mandamus.] And, on motion for a mandamus, at the instance of such overseers,

Common Law.

calling upon the alleged debtor to pay them such money, the prosecutors adducing
evidence to show that such debt was due, and that the sum demanded was in pos-
session of the alleged debtor, the court, on cause shown, refused a mandamus. Îb.

-

PAYMENT.

1. Evidence Estoppel.] In an action for goods sold, there was a plea of payment,
and it appeared that both the plaintiff and the defendant employed G. as factor. G.
sold the goods to the defendant knowing he was factor. On a balance of accounts,
G. was indebted to the defendant. The plaintiff, who knew the state of accounts
between G. and the defendant, petitioned the Court of Bankruptcy to make G. bank-
rupt, and alleged in his affidavit that G. owed him a sum of money for goods sold by
G. as factor of the plaintiff, to the defendant, and for which he had received payment
by means of goods sold by the defendant to G. The plaintiff having afterwards sued
the defendant for the price of the goods :-

Held, that the statement in the affidavit was not conclusive evidence estopping the
plaintiff from denying that the defendant had paid for the goods; the allegation as
to payment, so explained, not being an allegation of fact, but of an inference of law
drawn by the plaintiff. Morgan v. Couchman, 321.

2. Of Part When a Discharge.] To a declaration for work and labor, the defend-
ant pleaded, that after the present cause of action, and before suit, the plaintiff levied
a plaint against the defendant in the county court for 501., that the defendant being
then and at the time of the accruing of the cause of action for which the plaint was
levied, an infant, gave notice that he should defend himself against the plaint on that
ground, and that before trial in the county court, the plaintiff and defendant agreed
that the defendant should pay the plaintiff's costs and 301., and that the plaintiff
should accept the 301. and the performance by the defendant of the agreement in
satisfaction as well of the cause of action for which the plaint was levied, as of all
causes of action which the plaintiff then had against the defendant. Averment of
payment before suit by the defendant of the 30l. and costs, and acceptance by the
plaintiff in pursuance of the agreement:

Held, that the averment of the defendant being an infant when the cause of action
arose for which the plaint was levied, was immaterial, and that the plea was a good
defence without that averment. Cooper v. Parker, 325.

1. Action on Judgment.] To an action on an Irish judgment, the defendants, who were
a corporation, pleaded that they were not served with process in the action, and that
"the plaintiff irregularly, behind the back of the defendants, caused an appearance
to be entered for the defendants," and thereby obtained judgment, when the defend-
ants were not within the jurisdiction of the court, and had not been served with any
process to appear in the action :

Held, a bad plea, after the plaintiff had pleaded over to it, for not showing that the
defendants did not know of the summons, or that they did not appear in the action.
Sheehy v. Life Insurance Co. 268.

2. Quære, if the 13 & 14 Vict. c. 18, s. 9, which provides for substitution of service in
actions brought in Ireland, applies to corporations? 1b.

3. Replication.] Matter which before the statute 15 & 16 Vict. c. 76, ss. 77, 79, was
the subject of a special replication, is not put in issue by the general traverse given

Common Law.

:-

by these sections. Trespass q. c. f., plea justifying under a right to dig soil. Repli-
cation,"
-" And the plaintiff joins issue on the plea ":-
Held, that the right only was put in issue, and that trespasses, extra the right, should
have been new assigned. Glover v. Dixon, 490.

See FRAUD. PAYMENT. TRESPASS.

POOR RATES.

Russell Institution.] The Russell Institution comprises a library, theatre or lecture-
room, and a news-room, and was founded in 1808 for the purpose of, first, the forma-
tion of a library consisting of the most useful works in ancient and modern literature;
secondly, the establishment of a reading-room provided with the best foreign and
English journals and other periodical publications; thirdly, for lectures on literary
and scientific subjects. The funds for purchasing the building and supporting the
institution were raised in the first instance by transferable shares. Persons might
become annual subscribers to the institution and be entitled to the privileges of pro-
prietors. There were about 400 shareholders and subscribers, and the privileges of
the institution, except as to admission to the lectures, were confined to them. The
library contained about 18,000 volumes and the principal reviews, magazines, daily
and weekly papers, and other periodicals, and directories and other books of refer-
ence, and the mining and railway journals, and railway time-tables. Some of the
newspapers taken in were filed, and the rest sold for the benefit of the institution.
The lectures on subjects connected with science, literature, and the arts, the public
were invited to attend upon payment of an admission fee. The whole income of
the institution, derived in part from the rent of baths, wine-cellars, and annual sub-
scriptions, was applied in defraying the expenses of the institution, and a rule of
the institution provided that no dividend, gift, division or bonus in money or other-
wise could be made to or between the members: -

Held, that the institution could not be considered as "a society instituted for the pur-
poses of science, literature, or the fine arts exclusively," and was therefore liable to
parochial rates.

Quare. Whether it could be considered as "a society supported in part by annual
voluntary contributions," within the meaning of 6 & 7 Vict. c. 30, s. 1. Russell In-
stitution v. St. Giles, 126.

PRACTICE.

1. The court directed a special case to be set down for argument, which was signed by
the plaintiff, (who intended to argue it in person,) and by counsel for the defend-
ants. Udney v. East India Co. 227.

2. Pleading and Demurring.] Where a party has obtained a judge's order for leave
to traverse and demur to a pleading under the 80th section of the Common Law
Procedure Act, 1852, and judgment has been given against him on the demurrer,
the court will not rescind the order as to the traverse and strike it out. Sheehy v.
Professional Life Assurance Co. 274.

3. New Trial.] The plaintiff, on the 24th of March, gave notice of trial for the first
sittings for London in Easter term, and on the 20th of April, gave notice of his inten-
tion to enter and try the cause as undefended at the second sittings. The defendant
accordingly did not appear at the first sittings on the 22d of April, when the cause
was tried, and a verdict found for the plaintiff. The defendant, on the 6th of May,
moved for a rule to set aside the proceedings for irregularity :-

Held, that he ought to have moved within four days from the day of trial. Ellaby v.
Moore, 280.

4. Judge's Order.] In an action of trover, by churchwardens, to recover a parish book,
Erle, J., to whom the cause was referred after verdict, by consent of the parties,
made an order, which was made a rule of court, that the costs of both sides should
be paid by the parish. The cause came on for trial a second time, when, by like
consent, it and all matters relating to it were, by order of Nisi Prius, which was
made a rule of court, referred to Williams, J., to direct in what manner the order of
Erle, J., was to be carried into effect. Williams, J., on the 10th of August, 1852,
made an order upon the defendants to pay the plaintiffs their costs on the 1st of