T C 18 «.£ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LA\V CHITTY'S TEEATISE ON" PLEADING AND PARTIES TO ACTIONS, WITH A SECOND VOLUME CONTAINING MODERN PRECEDENTS OF PLEADINGS, AND PRACTICAL NOTES. Nihil simul inventum est et perfectum. — Co. Lit. 230 a. IN TWO VOLUMES. VOL. II. THE SEVENTH ENGLISH EDITION, CORRECTED AND ENLARGED, BY HENRY GREENING, ESQ., of Lincoln's inn. SIXTEENTH AMERICAN EDITION, WITH NOTES, AND REFERENCES TO THE ENGLISH AND AMERICAN DECISIONS, By J. C. PERKINS, LL. D. SPRINGFIELD, MASS. PUBLISHED BY G. & C. MERRIAM. 1879. Entered, according to Act of Congress, in the year 1876, by G. and C. Merriam, in the Clerk's Office of the Librarian of Congress, at Washington. T c RIVERSIDE, CAMBRIDGE: D l'.Y H. O. HOUGHTON AND COMPANY. TABLE OF CASES. Abbe v. Eaton 109 v. Rood 59, 484 Abbey v. Chase 45 Abbott v. Blofield 148 v. Draper 30 v. Hendricks 339, 344 v. Macfie 571, 578, 670 v. Sebor 163 Aberaman Iron Works v. Wickens 520 Abithol v. Beneditto 4 v. Bristow 159, 166 Abraham v. Reynolds 568, 573 Abrahams v. Kidney 560 Absalon v. Marks 221 Acebal v. Levy 28 Acheson v. Miller 151 Ackley v. Kellogg 100 Ackroyd v. Reed 448 v. Smith 738 Acland v. Lntley 712 v. Pring 196 A' Court v. Cross 433 Acraman v. Cooper 726 v. Morrice 28 Acton v. Blundell 626 Adams v. Adams 125, 513 v. Anderson 526 v. Andrews 590, 657 v. Barnes 380 v. Dansey 153 v. Frye 298 v. Gibney 200, 201 v. Hackett 341 v. Harrison 626 v. Jones 333 v. Lawson 540 v. Lloyd 605 v. Meredew 546 v. Nichols 458 v. Palk 443 v. Rankin 538 v. Royal Mail Steam Packet Co. Ill, 114 v. Warren Ins. Co. 160 v. Wiscasset Bank 502 v. Wordley 339 Adamson v. Jarvis 156, 523 Adamson's Patent, Ro 585 Adcock v. AVood 308 Addington v. Magan 465 Addison v. Gibson 214 v. Preston, Mayor of, 208 Addison v. Round 594, 619, 620 Adelaide v. Booth 448 Adelphi Loan Association v. Fairhurst 528 Adkins v. Anderson 21 v. Farrington 317 vEtna Ins. Co. v. Wheeler 99, 100, 102 Agawam Bank v. Sears 331 Aggs v. Nicholson Aglionby v. Towerson Agnew v. McElroy Agra & Masterman's Bank v. Hoffman Leiffhton 220 206 421 730 330, 377 694 452 29 186 608 598 58 30 344 10 297 568 570 325, 328 297 Agricola, The, Agricultural Cattle Ins. Co. v. Fitzgerald Aiken v. Short Ainsworth v. Ritt v. Walmsley Aireton v. Davis Aitcheson v. Padock Albea v. Griffin Albertson v. Halloway Albon v. Pyke Albretcht v. Sussman Albro v. Agawam Canal Co. v. Jaquith Alcard v. Messon Alcenius v. Nygren Alchorne v. Gomme 687 Alcock v. Alcock 436 Alcorn v. Westbrook 623 Alcott v. Barber 49 Alden v. Pearson 101 Alder v. Keighley 44 v. Pack 387 Alderman v. Neate 197 Alderson v. Davenport 596 v. Langdale 351 v. Waistell 697, 702 Aldis v. Gardner 280, 305 Aldous v. Comvvell 298, 331 Aldred v. Constable 672, 716, 724, 725 Aldrich v. Ames 151 v. Kenney 420 v. Press Printing Co. 502, 538, 661 v. Stockwell 339 Aldridge v. Great Western Railway Co. 96, 578 v. Haines 648 v. Howard 192, 197, 204, 425, 427 Alebury v. Walby 148 Alexander v. Alexander 538 v. Bonnin 717 v. Bnrchfield 115,362 5SG03S TABLE OF CASES. 112 Alexar. : V v 536. 544 1 ' '" 134 93 156, 201 96, 4-7 30 407 264 231 186 79 509 256 631 262, 461 130 By. Co. M. Ins. Co. 163 309 . and Life As.-nr. Co. 220 231 .V.I2 Smith 654,729,730,732 Walker 332 Wanumaker 519 Willard V. _ lit Ri yn 8 it ll rrio I I • ■ • rliill 1'riuto I 458 573 702 586 289 48 S96 44 1 332 351, 621 467 366 370 580, 585 360, 363, 189, 490 1 524. 182 469 120 130 mm ' cmlthard ; . fr.Co.647 28 249 v. H.m I ' 107 488 162 irn 29s ' 322 ' 668 Anns v. Wilson r. Long Amies v. Kelsey Ammermarj v. Crosby Amor v. Blofield v. Cuthhert /■. Fearon Amnn v. Broderick Amos •■■ Smith v. Temperley Ancona v. Marks Andell '•. Dawson Anderdon v. Burrows Anderson v. Boynton v. Chapman v. Edie V. (ia-e 32 633 587 550, 551 553 408, 441, 463, 464 213, 438 26, 156 433, 434 97 333 403 614 60 490 174 29 v. Highland Turnpike Co. 289 v. Martindale 119 v. Midland Ry. Co. 312, 360, 504, 645, 686 v. New Jersey &c. Co. 569 v. Passman " 622, 727 v. Eadcliffe 717 v. Thornton 139, 164, 353 Andrew v. Blachley 115 v. Boughey 289 v. Macklin 324 Andrewes v. Garstin 216, 217 Andrews v. Bovd 79, 80 v. Dixon 599 v. Hancock 405 v. Lvon 379 v. Thornton 548 Angerstein v. Handson 189, 190, 428 Anglesea v. Hatherton 642, 722, 726 Anglo-African Co. v. Lamzed 111, 490 Anglo Gold Mining Co. v. Lewis 452 Anibal v. Hunter 663 Aukerstein v. Clarke 148 Anon. 1 Chittv, 5S 270 1 Dowl. 97 3 7 D. &R. 511 19 32 L. J. Ex. 434 Lofft, 81 595 Lofthouse, 275 194 8 Mod. 308 388 12 Mud. 574 478 1 Salk. 282 8 Anscombe >•. Shore 512 Ansell v. AVaterhouse 531 Anthony v. Haneys 720 Anworth v. Johnson 188 Apothecaries' Company v. Greenough 246 v. Lotinga 48 Appleby v. Myers 186 A ] ipleton v. Bancroft 31 v. Chase 30 v. Hogan 237 Arbouin f. Anderson 25, 26, 75, 339, 345 Arcedeckne v. Kelk 480, 481 Archer v. Bamford 393 v. Baynes 28 v. English 449 v. Garrard 21 [arsh 136 Arden v. Goodacre 599 v. Pullen 183 v. Sullivan 189, 198 v. Tucker 56 TABLE OF CASES. Ardesco Oil Co. v. Gibson Arend v. Liverpool Steamship Co. Aigoll v. Cheney Arkwright v. Gell Ai-ledge v. Rooks Arlett v. Ellis Armani v. Castrique Armfield v. Allport v. Burgin v. Tate Armistead v. Wilde Armitage v. Baker v. Coates Armory v. Delamirie Armstrong v. Campbell v. Perry Arnold v. Bainbi'id^e 700 5G9 101 299 626 251 740 333 Downing v. Foote v. Hamel v. Norton v. Poole, Mayor of, v. Revoult Arrowsmith v. Messurier Artcher v. Douglass Arthur v. Beales v. Dartch Artisan's Bank v. Backus Ascue v. Sanderson Aseutney Bank v. McOrmsby Ash v. Dawnay v. Marlow v. Pouppeville Ashbee v. Pidduck Ashby v. Ashby v. Harris v. Minnitt Ashcroft v. Morrin Ashley v. Harrison v. Wolcott Ashmole v. Wainwright Ashmore v. Hardy Ashpitel v. Bryan v. Sercombe Ashton v. Freeston v. Poynter Ashworth v. Ryal v. Stanwix Aspinall v. Smith v. Wake Astley v. Johnson v. Weldon Aston v. Heaven v. Perkes Atchinson v. Baker Athenaeum Life Assur. Co. Ex parte Atkin v. Slater Atkins v. Acton v. Beaumont v. Chilson v. Curwood v. Humphrey v. Johnson Atkinson v. Baker v. Baynton v. Bell v. Davis v. Denby v. Fosbroke v. Hawdon 641 85, 332 73, 74, 220 450 406 532, 533, 654 324 63, 66, 308 619 31 260 463 434 626 674 562 56, 60 185 613 374 346 294 334 724 234 674 551, 668 446 351 31, 124 125 691, 711 28 543 626 29 645, 711 332, 333, 381 30 456 120 3 579 18 122 343 203 564 682 205, 206, 437 159 620 208, 438 419 481 401 124,125,382,383 151 622 140 28, 265 338 364 662 338, 349, 351 Atkinson v. Hornby ■6. Matteson v. Raleigh v. Smith v. Warne v. Woodall Atkyns v. Kinnier v. Pearce 2 672 555, 668 119 700, 705, 707 243 136 147 Atlanta & G. W. R. Co. v. Dunn 502 Atlas Bank v. Brownell 399 Atlee v. Backhouse 370 Attack v. Bramwell 504 Attenborough v. London 404 v. Mackenzie 336 Attenbury v. Jarvie 371, 374, 375 Att. Gen. v. Cleobury 174 v. Gauntlett 740 v. Nicholl 481 v. Royal College of Physicians 220 v. Worcester, Corporation of, 13 Attwaters v. Courtney 50, 87 Attwood v. Emery 460 v. Rattenbury 3 v. Small 518, 519, 520 v. Taylor 449 Attwool v. Attwool 157, 352, 463 Atty v. Parish 110, 184 Atwill v. Ferrett 500 Atwood v. Coburn 434 v. Ernest 732 v. Reliance Transp. Co. 101 v. Wright 519 Auchmuty v. Ham 561 Ault v. Fleming 331 Aurora Fire Ins. Co. v. Eddy 170, 414 Austen v. Boys 134 Austin v. Croome 731 v. Debnam 554 v. Fenton 311 v.Mills 176,421 v. Moore 90 v. New Jersey Steamboat Co. 570 Avanzo v. Mudie 501 Aveline v. Whisson 185 Avenell v. Croker 506, 509 Averill v. Wilson 380 Avery v. Bowden 114, 362, 458, 565 v. Cheslyn 656, 733 v. Scott 309 Awde v. Dixon 345 Aycock v. Wilmington &c. R. R. 570 Ayer v. Hawkes 182 v. Hutchins 151 Ayers v. Hewett 392 Aylesbury Ry. Co. v. Mount 226, 452 v. Thompson 226 Ayling v. Whicher 528, 620 Aymar v. Astor 1 62 Ayre v. Craven 539, 544, 546, 547 Ayres v. Pease 471 Azemar v. Casella 258, 458 B. Babb v. Clemson 298 Babcock v. Hawkins 288 v. Lake Shore &c. R. R. Co. 102 v. Thompson 36, 37 Babonneau v. Farrell 549 Bacher v. Fox 131 VI TABLE OF CASES. ' 4-1 187 Ball v. Bruce 7-. Gibbert v. Gordon v. MuU'liinson 559 30 75 596 Nye 621', . Shaw 352 ' orie 373 ■ :.5i 198 128 .■. Swan llantine v. Robinson Ballard v. Way Ballon v. Talbot 310 235 255 45 Balls r. Metropolitan Ey. Co. 229 324 Baltimore v. Holmes 565 200, 251 v. Lefferman 370 .',11 Baltimore & < >hio R. R. Co. v Shipley 567 203 Baltimore & Phila. Steamboat Co. v. ! ' 421 Brown 100 air 525 Baltzen v. Nicolay 45 506, 507 Bamberger v. Commercial Credit Mut- r 641 ual Association Co. 163, 176, 367 21 Bamford v. Res 139 841 v. Turnlev 584, 67G Bancroft v. Mitchell 698 322, 324 v. Wardwell 181, 182 445 Bandy v. Cartwright 155, 200, 485 288 Bangor v. Lausil 626 376, 399 Bankart v. Haughton 658 ■ 260 Bank of Australasia v. Hardh g 419, 421 445 v. Niaa 419, 420, 421 49 Hamburg v. Wray 45 73. Hindostan v. Smith 298 S 234 Steubenville v. Hoge 374 - 641, 740 Banks v. American Tract Soc cty 480 402 v. Angell 592 609, 685, 686 " Ikiuu 29 v. Gibson 608 A. 11 212, 138 v. Pike 463 . 398 Bannister v. Breslauer 362 249 v. Hyde 504 32 Barbarous v. Waters 79 . 655 Barber v. Brace 109 293, 636 v. Brown 29 H 138 v. Fleming 160 295 v. Harris 200 1G7, 299, 413 V. Lamb 177, 421 Australasia 17. Li-siter 498, 551 B 34 o. WTiitelej 652 ght 206, 437 t7. Wood * 744 650 Barden v. Keverburg 147, 149, 368 238 Bardons r. Selby 701 199 Barfoot v. Reynolds 697 620 Barford v. Shuttleworth 29 283 Barker r. Allan 216 ,' 183 v. Birr v. Bucklin 33 137 v. Heard 33 ' 407 3, 8 1 1 9 206 v. Malcolm v. Quintin w. Richardson 17. Rollinson 332, 338 418 455 613 fe In- L74 v. St. Quintin 455, 709 339 17. Tilson 245 541 , 5 1 1 17. Waite 246 5 1 2 Barksdale 17. Brown 42 ' : R i: 570 Bar] i Barlej v. Walford 207, 360 519, 525 I Barlowe i». Brown 31 541 Hariiard v. Bartholomew 32 ■ 206 1 . 1 'iithy 17. Leigh Barnes v. Braithwaite 426 508 51 TABLE OF CASES. Barnes v. Brown v. Butcher v. Chapin v. Hunt v. Reane v. McCrate v. Martin v. "Ward Barnett v. Allen v. Braudao v. Cox v. Glossop v. Guildford v London & North Western Ry. 391, 67, 516, 562, 573, 730, 276, 30 464 561 656 598 660 611 581 539 731 675 368 717 744, 728, 454 552 15 730 360 562 540 456 261 146 419 545 218 540 109 9n9 503, 52 100, 101, 102', Co. v. Reed Barnewell v. Sutherland v. Williams Barney v. Burstenbinder Barnum v. Vandusen Barnwell v. Adkins Barr v. Cooper v. Gibson Barrack v. McCullock v. Newton Barrett v. Allen v. Bedford, Duke of, v. Long v. Rogers v. Rolph v. Trussell Barrick v. Buba Barron v. Eldredge v. Mason Barrow v. Arnaud v. Wadkin v. "West Barry v. Lowell Barsham v. Bullock Barter v. Wheeler Bartholomew v. Carter v. Hill v. Markwick Barthwick v. Carruthers Bartlett v. Baker v. Benson . v. Blanchard v. Brown v. Crittenden v. Dimond v. Drake v. Prescott 'v. Tucker v. "Walter v. Wells Bartley v. Hodges v. Richtmyer Barton v. Brown v. Bucknell Bartonsville Coal Co. v. Reid Bartrum v. Cuddy 222, Barwick v. Buba 1 14 > v. English Joint Stock Bank 392 Barwis, Ex parte Barwise v. Russell Basan v. Arnold Basham v. Lumley Baskett v. Barnard Bassett v. Bassett v. Mitchell v. Salisbury Manuf. Co. v. Sanborn Bassil v. Elmore Bastow, Ex parte Batchelder v. Low Batchelor v. Vyse Bateman, Ex parte v. Aston, Mayor &c. of, v. Gray Bates v. Hewitt v. Pilling v. Seabury v. Starr v. Sturgess Vll 298 609, 718, 740 372, 406, 723, 626 458 542 499 317 512 317 453 680 164,412 310, 553 59, 484 32 8 v. Townley 29,33,64,65 66 Bathe v. Bank of England 1« Batley v. Catterall 339 Batsome v. Spearman »*> «£ Batsonr.Kins 137,151,152 Bason v. Hughart Bass v. White Vol 141 362 99 550 235 297 420 626 693 493 288 334 458 409 580 343 652 668 498 29 259 738 45 158 654 319 559 724 535 569 342 458 ,520 317 89 346 654 271 137 234 634 265 259 90 594, 629 30 431, 432 395 212 Co. "4S9 Batteley v. M'Leod Batterbury v. Vyse Batterman v. Pierce Battey v. Holbrook Battishill v. Reed 481 . Battle v. Rochester City Bank Battley v. Faulkner Batty v. Marriott v. Melillo Baxendale v. Eastern Counties Ry v. Great Western Ry. Co. 449 v. Harding 170, 414 v. Hart " v. Harvey 171, 414 v. South Western Ry. Co. 489 Baxter v. Bui-field 120 „.Bush 4 07 v. Duren 30 v. Hozier 29 J „. Nurse 208, 209, 212 436 593 408 345 179 289, 458 729 209 29 582 506 186, 530 302 v. Portsmouth, Lord, v. Taylor Bay v. Gunn Bayley v. Bidwell v. Fitzmaurice v. Homan v. Merrill v. Rimmell v. Wilkins v. Wolverampton Waterworks Co. Baylis v. Fisher v. Legros Baynard v. Simmons Baynes v. Brewster Baynon v. Batley Bazin v. Steamship Co. Beach v. Barons v. Gray v. Hancock v. Mullin v. White Beachey v. Brown Beal v. South Devon Ry. Co. 96, 104, 357 Beale, Re 324 v. Hayes 203 Beals v. Olmstead ~l' Beaman v. Buck 30 » '* 699, 700, 701, 704 47 101 90 183 611 208 277 206 BMaaa Bmri li. u TABLE OF CASES. I SSI 471 148 S17 659 12 497, I 11 031, 787, 742 571, 671 617 90, 337, 445, 446 404 l: Mat. r.i-- j ■.'. I ■ . 436 r, Ml 100. 101 64 S04 4.'. J 229, 452 . 160 51, 217 208, 213. 217 17.', I, 680 248 152 220 124 l 15 } R. R 111, 1 I ■ 716 1 Bell v. Byrne axey v. Darenth Rv. Co. v. Ellis v. Farrar • rardiner v. Hayden v. Jauson v. Logan . . .Marine Ins. Co. ! idland Ry. Co ,-. Beid v. Stone v. Tuckett v. Twentvman ». Welsh Bellamy v. Burch Bellet'oiitaine &c. R 547 463, 464 453 R. Co. v. Snvder Beller v. Block Bellingham v. Clark Hell" kett Belshaw v. Bush v. Marshall Bench v. Merrick Bendix v. Wakeman Bendurant v. Crawford Benett v. Peninsular & Boat Co. Benge v. Swaine Benham v. Broadhurst v. Momington, Earl of, Benjamin v. Benjamin v. McConnell v. Wheeler Bennett v. Bayes v. Burton v. Goldthwait v. Ireland v. Jndson v. Lockwood v. Mellor v. Neale Bennion v. Davison Bennison r. Cartwright Benson v. Blunt v. Chapman v. Chester v. Paul arte I tawes v. Fleming "ldthorp v. Keighley v. Northhouse Armstrong ^'Ott Benwell o. Inns Benyon v. Cresswell t v, Belsley v. Jacobs Bergman v. Roberta Berkeley v. I)'' ^ ^ ore »,'. Elderkin V. N\'atling Berkshire Woollen Co. v. Proctor Bernhardt o. Rensselear &c. R. R. Bernstein v. I'axendale Berridge v. Abbott Berrington v. Phillips 182 234 338 186 410 32 160 594 297 540 456 630 277 542 567, 572 62 268 626 289, 348, 349, 350, 456 715 437 148, 272 519 Oriental Steam 494 632 324 352 57 331 527 504, 505, 512 214 318 183, 185 520 567 533 177 107, 277 738, 742 112, 114 159, 163, 164, 411 497 557 536 24, 240 680 679 678, 681 74, 85 626 73, 220 134 281 528 528 180 36 176 107 532, 533 Co. 565 356 322 32 TABLE OF CASES. IX Berry v. Adamson ". Alderman v. Da Costa 206, v. Fletcher v. Storey Bertie v. Beaumont 183, Berton v. Lawrence Bertram v. Gordon Berwick, Mayor of, v. Oswald 92, v. Shanks Besancon v. Shirley Besant v. Great Western Railway Bessey v. Windham 393, Bessig v. Britton Besson v. Southard Betteloy v. McLeod 263, v. Stainsby 317, Betton v. Cutts 202, 433, Betts v. Burch 5, 90, v. DeVitre v. Gibbins 151, v. Menzies v. Nielson Bevan v. Waters Bevans v. Sullivan Beverly v. Lincoln Gas Light Co. 27, Bevins v. Hulme 62, 596, Bianchi v. Nash Bibby v. Carter Biccard v. Shepherd 162, Bickford v. D'Arcy v. First Natl. Bank of Chicago v. Parson 188, 198, v. Skewer Biddle v. Bond 711, Bidgood v. Way 85, 148, Bidwell v. Calton Biederman v. Stone 93, Bigelow v. Baldwin v. Randolph v. Stephen Bigge v. Parkinson 257, Biggins v. Goode Big»s u. Clay v. Cox 273, Bignell v. Buzzard v. Clarke 512, v. Harpur Bilbee v. London & Brighton South Coast Railway Biles v. Holmes Bilke v. London Railway Co. Billing v. East India Co. v. Kightly Billings v. Ames v. Walker Binckes v. Pash 480, Binet v. Dale Bing v. Watts 553 341 559 612 33 711 125 442 139 180 470 517 596 151 551 743 319 434 203 587 153 678 586 729 215 239 713 27 606 412 662 115 430 679 725 150 131 355 288 502 298 258 509 556 422 661 615 124 566 565 Chatham & Dover Bingham v. Clements 657, 7 v. Corbitt v. Stanley Binks v. South Yorkshire Railway Company & Dock Company 516, 530 378 26 135 663 481 355 547 724 399 403 Binney v. Chapman Binnington v. Wallace Binns v. Piggott Birch v. Leake 533, 573, 574 182 404 729 368 Birch v. Liverpool, Earl of, 124 v. Stephenson 192 Bird v. Gammon 137, 140, 142 v. Great Northern Railway Co. 564 v. Higginson 179, 184 425 v. Holbrook 562, 583 v. Jones 613 v. Peagrum 528 v. Pegg 407 v. Ralph 591 Birge v. Gardiner 571, 572, 574 Birkenhead, Liverpool & Chester Railway Co. v. Cotesworth 11; 227 v. Pilcher 227 v. Watson 11 v. Webster 227 v. Wilson 226 Birkett v. Whitehaven Ry. Co 566 Birkley v. Presgrave 133 Birley v. Salford Hundred 527, 653 Birmingham, Bristol & Thames Junc- tion Railway Co. v. Locke 452 Bisbing v. Graham 332 Bischorfy. Wethered 420 Bishop v. Bedford Charity 580, 581 v. Bryant 509, 511 v. Hayward 75, 348 v. Pentland 162 Bishton v. Evans 92 Bissel v. New York Central R. R. Co 97 v. Price 102, 109 Bissell v. Cornell 663 Bist v. Fuax 559 Bittleston i\ Timmis 467 Bixler v. Ream 131 Blackburn v. Smith 30 Blackburn, Mayor of, v. Parkinson 26 Blackburne v. Davis 50 Blacketer v. Gillett 517 Blackett v. Bradley 644 Blackham v. Pugh 660, 661 Blackman v. Simmons 562 Blackmore v. Glamorganshire Canal Co. 631 Blades v. Higgs 604, 621, 698 Blagg v. Sturt 660, 661 Blagrave v. Bristol Water Works Co. 26, 582, 628, 630 Blaikie v. Stembridge 43, 490 Blair v. Bank of Tennessee 298, 331 v. Ormond 434, 435, 666 Blake's case 289 Blake v. Barnard 611 v. Beaumont 74, v. Darling 592 v. Ferris 495 v. Great Western Ry. Co. 100, 577 v. Lanyon 560 v. Midland Railway Co. 515 v. Thirst 573 Blakemore v. Bristol & Exeter Rail- way Co. 485, 573, 574 583 v. Yates 90 Blakeney, The 243 Blakesly v. Smallwood 465 Blanchard v. Bridges 480, 481 v. Isaacs 99 v. Russell 319 Blanchenay v. Burt 710 Bland v. Lipscombe 517 Blankenship v. Rogers 79 TABLE OF illo Blii. S irtz in Mills Co. v. 1 Mir. BlotV-M i . r. •-. I Co. Bloo irke 1 U nman B . Smith ! tay iffin • V. B. R. Co. Blue! all imont l'lwin Mining Co. v. Barnes 31 146, 485 271 71 541 79 608, 009 459 170,414 434 539 31 369 495 99 488 31 324 CI 7 697 394, 453 Blvth v. Birmingham W • r Works Co 360 Blyl : 309 v. Lovinwo mith 28, 152, 196 imaii v. Spooner , 458 irrissen 317 i I -toll 164 B 1 1 li 287, 66f 339 ; 444 . Arch 120 Ids 62f, 260 208 ier 148 din 380 Bolan 497 ri R. I!. Co. 561 B itfa 574 I i : . i ; Co. 568 M 380 i of, 299 [Qlei B 11 493 aid •-k 519 647, 712 Parnham 29 324 r, 698, 699, 70E ; .' :S8 30 ine v. Thompson 449 Falkland Islands Co. 484 Bonnell u. Chamberlin 348 I r .-. Marsh 94 ants' Steamboat Co. 103 Bonney V. .Merrill 484 r. Reardin 406 mi Back] : o. Stewart Boodle v. < lambell K. anej Bi nman v. Brown rash Booscv r. Davidson ?-. Pnrday - . \Vood Booth v. ('live v. Howard v. Kennard v. Mister 604, 606, 667 398 466, 724 426, 687 406 42, 355, 477, 635 235, 238 643 500, 643 636, 662, 665 674 36 679 567 v. North Eastern Railway Co. 96 v. Taylor 530 Borah < . < lorry 444 BorastoD v. Green 536 ii . Bingham M. F. Ins. Co. 158 Borradaile v. Hunter 173, 417 B( van 259 Borries v. Hutchinson 235 Borrowman v. Rossel 373,375 tiwick v. Carrnthers 408 Bosanquet v. Woodford 126 V. Wray 442 Bosley v. Moore 37 Boson v. Williams 8 Boss v. Helsham 63, 65 . I.itton 696 Boston, The, 108 Boston v. Benson 298, 299 v. liinney 181, 182 Bostwick v. Leach 130 v. Ackrord 535 Bottomley v. Heyward 596 v. Nuttall 348 Boueicault v. Delafield 500 v. Wood 499 Boughton v. Frere 3 Bouillon v. Luptou 412 Boulcott o. Woolcott 348 Boulnois v. Mann 324 Boulter v. Arnott 28 Boulton v. < loglan 396 d Reynolds 511 BounsaU v. Harrison 340 Bourne v. Alcock 610 oke 619 v. Gatliffe 24, 639 v. Ratcliff 107 r. Seymour 26, 241 Bousfield '■. Barnes 160 Bunt, lie '■■ Melendy 461 Bovill v. Crate 587 v. Hadley 586 v. Hammond 216 Pimm 587 Bowcher v. Nordstrom 600 Hall 600 D r. Hope Ins. Co. 160 v. JerDrin 497, 641 642 ■ latheson 498 TABLE OF CASES. XI Bowcn v. Newell 110 17. 1 hvin 470 Bowens v. Johns, in 519 Bower r. Hill 627 632 v. Hodges 219 v. Kemp 271 Bowers v. Nixon 192 Bowker v. Barns 445 Bowlby v. Bell 24f> Bowler v. Nicholson 645 Bowles v. Hilton 4 v. Orr 420 v. Senior 483 Bowlsby v. Spear 626 Bowman r. Caruthers 392 v. 1 36 v. Hilton 102 v. Tallman 57, 58 ; 483 Bowser v. Bliss 134 Bowyer v. Cook 610 Boyce w. Chapman 357, 639 v. New York 560 /•. Webb 418 Boyd >-. Brooks 389 v. Brotherson 331 v. Brown 518 v. Byrd 559 v. Croydon Ky. Co. 501 v. Dubois 167 v. Fitt 103 v. Hind 365 v. Hitchcock 288, 289 445 v. Letts 237 460 v. London & Croydon Railway Co. 675 w. M'Connell 298, 331 v. Mangles 467 v. Moyle 140, 217 v. Robins 317 v. Siffkin 241 Boydell v. Champneys 349, 350 v. Harkness 77, 78 v. Jones 539, 544, 546 Boyden v. Moore 448, 450 Boyes v. Hewetson 2, 180 Boyle v. Brandon 559 v. McLaughlin 103 v. Tanilvn 516 v. Webster 407, 142 Boyman v. Gntch 254, 255 Boys v. Pink 94, 95 Brabant v. Wilson 195 Bracegirdle v. Hincks 97, 1 1 9 w. Orford 617 v. Peacock 658, 672, 673, 738, 743 Bracey v. Carter 57, 282 Brackett v. Lubke 495, 573 v. Norton 57 Bracy v. Kibbe 559 Bradl v. Christ's Hospital 579, 580 Bradbury v. Morgan 138 Braddick v. Thompson 308 Bradfield v. Tupper 434 Bradford v. French 406, 407 v. Peckham 134 v. Rice 316 Bradlee '. Maryland Ins. Co. 163 Bradley t. Arthur 707 v Bardsley 338, 469 Bradley v. Copley 619, 620 v. Dunipaco 108 v. Mut. Ben. Life Ins. Co. 174 v. Newcastle 248 v. Norton 520, 670 v. Pratt 407 v. Bra 461, 653 v. Richardson 46 v. Spofford 730 Bradshaw v. Beard 28, 249 v. Bradshaw 364, 367 v. Hayward 282 v. Lancashire & Yorkshire Ky. Co. 515 Brady v. Lowell 502 v. Mayor &c. 57 ». Oastler 235 v. Todd 257 Braham v. Watkins 25, 676 Brain ard v. Connecticut River R. R. 580 Braintree v- Hingham 380 Braithwaite v. Coleman 464 v. Cooksey 685 V. Gardner 329 v. Skinner 124, 132 Bramah v. Roberts 341, 345 Bramble v. Spiller 46 Bramhall v. Sun Mut. Ins. Co. 165 Bramley v. Chesterton 192, 260 Bramston v. Robins 444 Bramwell v. Eglinton 314 v. Sj)iller 46 Branch v. Doane 580 v. Ewington 49 Branch Bank v. James 374 Brancker v. Molyneux 674 Brand v. Hammersmith Ry. Co. 229 Brandao v. Barnett 724, 727 Brandon v. Nesbitt 297 v. Newington 470, 472 Brandt v. Craddock 614 v. Peacock 553 Branley v. South Eastern Ry. Co. 100, 489 Branscombe v. Bridges 506, 511 v. Scarborough 90 Brashier v. Jackson 200, 252 Brass v. Maitland 99, 111, 360, 490 Braun v. Weller 419 Braunstein v. Accidental Death Insur- ance Co. 309 Bray v. Freeman 141 17. Mayne 145 Brayne v. Cooper 538 Breary v. Kemp 54 Breasted r. Farmers' Loan & Trust Co. 173 Breckenridge v. Taylor 32 Breckon v. Smith 33, 74 Bredin v. Ringland 57 Breed v. Hillhouse 79 v. Judd 407 Brehm v. Great Western R. R. Co. 565, 572 Brent v. Haddon 482 v. Midland Railway Co. 356 Brest v. Lever 718 Brewer v. Craig 182 u.Day 616,711 v. Dew 615 v. Jones 244 V. Marshall 134 TABLE OF CAS1 S. Brewer v. Palmer 181 v. T\ ringham 32 : :U4 s SI 4 rly 203 400 152, 155 200 all 741 V, -"ii 124 249 Brid Northern Ry. Co. 103, 360 nd Junction Ry. Co. 570, 670 Bridgt - . Berry v. Blanchard 481 rth 619, 620 Bridgetl ' ay 613 Ejland v. Sha] 558 Bridgman v. Dean 131 Bridgton v. Bennett ' " net 492 Boston & Lowell R. R. Co. 102 v. Georgia 57 v. Merchant Traders' Insurance Assoi ial 159 v. Oliver 565 v. Taylor 565 r. Vanderbilt 29, 102 v. Wilson 3S8 Brighain r. Aldrich 550, 551 o. Bache 4 2 r. Eveleth 30 v. Foster 57, 59 r. Smith 74 1 v. Wentworth 399 Bright v. Beard 427 r. Evnon 392 V. Walker 479, 631, 632, 641, 737, 739 Brightman v. Fairhaven 5S0 v. Grinmll 513 Brighton Railway Co. v. Wilson 284 Blind v. Dale 99, 276, 279 v. Hampshire 75, 220, 332, 72; Brine v. Great Western Railway Co. 584, 607 Bringloe v. Goodson 192 Brinfey v. Ki 215 Brintnall v. Saratoga & Whitehall R. R. I 102 Briscoe v. Hill 26, 465 Bristol, Dean and Chapter of, p. Jones or Nugi 1 85 tez Ry. Cn. ,-. Collins 100 ■. Wait 507 Bristol v. Brown 374, 376 v. II'", wood 553 Br; Fairclough 421 0. Needham 28 British Columbia Saw .Mill Co. v. Nettle- ihip 236 oyd 29 Britti v. Hughes 364 Bri 713 Broadbent v. Ledward 268, 728 v. Ramsbottom 626 >■. Varley 314 Broadwater v. Blot 47 Iranara 533, 724, 729 Bi N' Jersey R. R. & Transp. 502 it >■. Monger 422, 165 i 540,547,548 Bromage v. Vaughan 334 Bromfield v. Jones 599 k v. « lurpenter 553 v. Rawl 549 v. Willet 497 Brooke v. Brooke 146 Brooker v. Scott 409 Brookes v. I >i - _ - 687 v. Cock 643 v. Fa rlar 35 Brooklyn Hank v. Waring 79 Brooklyn White Lead Co. v. Masury 607 Brooks*, Re 324 0. Blanchard 547 v. Cocks 501 r. 1 luinfreys v. Lynde v. Martin v. Mitchell v. Reynolds v. Stuart v. White Broom r. Batchelor Broomfield v. Smith Broughton v. Jackson Brouncker v. Scott Brow v. Hathaway Brown, J. W., The, Brown, In re 201, 249 124, 125 402 222 480 455, 456 288, 289, 445 138 279, 281 468, 706, 707 98 659 109 115 v. Accrinton Cottou Co. 569, 579 v. Adams 151 r. Bigelow 260. 652 v. Boorman 157 v. Castles 519 v. Cayuga &c. R. R. Co. 580 v. Collins 504 v. Copley 596, 672, 712, 716, 724 v. Cm in'] i 188 v. Dawson 615, 717 v. Dean 140 v. De Winton 221 v. Duchesne 586 v. Edgington 257, 521 v. Glen 504 v. Harris 29 v. Blius 626 v. Jacobs 60 v. Jarvis 598 v. Johnson 112 r. Jones 668, 710 v. Kendall 564 r. Knill 113, 186, 187 v. Lakeman 552 v. Langley 10, 339 v. Lexington & Danville R. R. Co. 422 v. London, Corporation of, 353 v. Mallet 477, 582 v. Maxwell 568 v. Metropolitan Railway Co. 504 v. Murphee 257 v. Neilson 162 v. New York Central R. R. Co. 566 v. Over! airy 30, 309, 395 v. rhilpot * 341 v. Price 214 v. Randall 551 v. R. R. Co. 570 v. Remington 540 v. Robins 605, 606 TABLE OF CASES. Brown Royal Insurance Co Sayce 171 686 257 504, 510 400 539, 549 40,42 719 208, 209, 210, 212 215,283 Sayles v. Shevill v. Shuker v. Smith v. Staton v. Story v. Symons v. Tapscott v. Tibbitts v. Trumper v. Vinal v. Watts v. Wheeler v. Wilkinson v. Williams v. Windsor Browne V. Dawson v. M. E. Church Browning v. Hamilton Brownlow v. Metropolitan Board Works v. Tomlinson Brownrigg v. Rae Brubaker v. Okeson Bruce v. Hellewell v. Jones v. Nicolopulo v. Westcott Brucher v. Fromont % Brumbridge v. Massey Brumsdon v. Allard Brunskill v. Robertson Brunswick v. Slowman Brunswick, Duke of, Ex parte Brunswick, Duke of, and Crowl, In re, Brunton v. Hall Bryan v. Clay v. Foy Bryant v. Clutton v. Crosby Bryfogle v. Beckley Bryne v. Cooper Buchanan v. Findlay Buck v. Albee v. Appleton v. Chesapeake Ins. Co. v. Hurst v. Lee v. Spofford v. Waddle Buckby v. Coles Buckland v. Johnson Buckle v. Knoop -- Buckley v. Campbell ° v. Gross l\l v. Knapp 56b v. Leonard ™ 1 v. Nightingale *"" Buckman v. Levy ^ Buckton v. Frost «« v. Wray 726 Buckworth v. Simpson 2, 187, 189, 196, 198 Budd, ex parte, in re Mexican & South American Co. * Buddiugton v. Davis 663, bb* Buell v. Cook lb - Buerger v. Boyd ,°° Bufferlow t'. Newsom -s 80 Buffit t7. Troy & Boston R. R. Buffum u. Harris Bulbeck v. Jones Bull u. Ingestrie v. Parker v. Robison Bullard v. Dyson v. Harrison v. Hascall Bullen v. Sharp Buller v. Fisher Bullock v. Dodds v. Dommett Bully thorpe v. Turner Buhner v. Home Bulnois v. Mackenzie Bulwer v. Bulwer Buubury v. Hewson Bunch v. Kennington Bunn v. Guy Bunnett v. Smith Buuns v. Buck Burbridge v. Manners Burchell v. Hornsby Burchfield v. Moore Burdett v. Withers Burdict v. Murray Burford v. Wible Burgess v. Beaumont Bugbee v. Burgess v. Clements v. De Lane v. Gray v. Merrill v. Vreeland v. Wickham Burgh v. Legge Burghart v. Angerstein v. Gardner v. Hall Burgoyne v. Cottrell Burkam v. Trowbridge Burland v. Local Board of Burley v. Russell Burling v. Read Burmester v. Hogarth Burnand v. Haggis Burnap v. Partridge Burnaps v. Albert Burnby v. Bollett Burne v. Richardson v. Thompson Burnell v. Hunt Burnett v. Bouch v. Cox v. Lynch 58, 152 v. Phalon v. Smith Burnham v. Ayer Burns v. Chapman Buron v. Denman Burpee v. Sparhawk Burr v. Housatonic R. R- Burrell v. Nicholson v. North Burrough v. Graden v. Moss Burroughs v. Norwich R. R. Co. Xlll Co. 566 626 220 333 235, 470 266, 460 737 738, 741 29 215,216 162 347, 391 186 683 471 680 717 591 648 134 679 206 337 536 331, 338 186, 188,428 729 542 438 36 608 532, 533 440, 459 577, 581 407 334 412 74, 79, 81, 334 407, 408 57 409 371 334 557 406 615, 617 33 654 39 550, 551 257, 261 618 248 714 39 666 195,197,536,537 520, 607 Kingston 344 298,299 243 696 317 565 648 99 182 148, 340 & Worcester 101 XVI TABLE OF CASES. Chai . Jones 11 Chandler v. Chandler 215 v. Doulton 506 v. Thompson 480 v. Vileta 4--i."> Channon v. Patch 536 Chanter v. Deed hurst 21S o. Dewhurst 585 '■. Hopkins 218, 257, 258 r. .loluison 218 ••ese 218, 268, 278, 585 Chantler v. Lindsay 662 Chapcott v. Corlewis 80 Chapel v. Hicks 264 Chapin v. Lapham 151 v. Merrill 151 Cliaplin v. Clarke 30 Chapman v. Beckington 92 v. Beecham 687 v. Brockway 134 v. Chapman 57 v. Giles 19 v. Gwyther 256 v. Hicks 471 v. Monmouthshire Railway & Canal Co. 228 v. New Haven R. R. Co. 572 r. New Orleans &c. R. R. Co. 101 v. Rothwell 515, 574, 582 v. Shepherd 29, 234, .354 v. Spiller 259 v. Sutton 140 v. Van Toll 58, 59 v. Walton 157 Chappell v. Cooper 249 v. Davidson 499, 500, 643 v. Purday 499, 643 Chappie v. Cooper 124, 409 v. Dnrston 465 Charles v. Altin 113, 363 v. Branker 449 Charless v. Rankin 604 Charlesworth v. Rudyard 246 Charlter v. Barret 547 Charlton v. King 318 v. Spencer 308 Charlwood v. Gn 562 Charman v. Henshaw 34, 35 Charnley v. Grundy 330 Charrington v. Johnson 674 Chan ^herrock 685 Chase v. Dwinal 370 v. Garvin 215 '■. Westmore 533, 7.30 I isemore v. Richards 625, 626 I '■. Bell 75 Chatfield v. Wilson 625, 626 Chatland v. Thornley 274 Channtler v. Robinson 580 Cheale v. Kenward 155 Cheasley v. Barnes 440, 709 Cheese v. Scales 540, 546 1 rough v. Hunter 32 Ch<:. . Exall 68, 620, 711, 725 >'. Hardman 4'.)7 Cheetham v. Hampson 516, 580, 581 I sltenham & Great Western Union Railway Co. v. Daniel 452 v. Price 227 Cherry v. Colonial Bank of Australasia 45 Cherry v. Powell 454 v. Stein 480 Chesterfield Company v. Hawkins 324 Chesterman v. Lamb 260 Cheston v. Gibbs 715, 716, 724, 725 Chetham v. Ward 456 Chicago v. Mayor 572 v. Bobbins 573 v. Starr 572 Chicago, B. & Q. R. R. Co. v. Dewey 572 v. George 566 Chicago & N. W. R. R. v. Jackson 569 v. Swett 569, 570 Chickering v. Fowler 107 Child v. ArHeck 548, 660, 661 v. Chamberlain 503, 503 Childers v. Wooler 62, 484, 518, 519, 600, 694, 709 Children v. Mannering 19 Chilton v. Carrington 623, 732 v. London Croydon Railway Co. 614, 698 Chinery v. Viall 235, 620 Chinn v. Morris 613 Chitty v. Dendy 446 Chollett v. Hoffman 587, 588, 681 Cholmondeley v. Payne 42, 63 Chope v. Reynolds " 163, 169 Chown v. Parrott 57, 62, 483 Christchurch v. Buckingham 644 Christie v. Griggs 565 v. Tancred 189 v. Winnington 314 Christmas v. Russell 422 Christopherson v. Bare 657, 696 Christy v. Douglas 57 v. Flemington 434 v. Rowe 97 Church v. Imperial Gas Co. 10, 13 v. Westminster 4 Church's Will, In re 391 Churchill v. Hunt 540, 545 v. Perkins 151 v. Siggers 552, 553 Churchward v. Ford 181 Churchyard v. Watkins 58 Churton v. Douglass 134 Cincinnati &c. Air Line R. R. v. Mar- cus 493 Cincinnati &c. Co. v. Timberlake 661 Cincinnati Chronicle Co. v. White Line Transit Co. 103 Cin., II. & D. R. R. v. Spratt 102 City Bank v. Cutter 79 Clariin v. Hawes 471 Clagctt v. Salmon 399 Clancy v. Piggott 142 Clapham ?•. Atkinson 322 Clare v. Maynard 260 Claridge v. Wilson 177 Clark v. Baker 30 v. Barnwell 101, 109 v. Barrington 575 v. Brown 540 v. Bulmer 28 ^.Crosby 134 v. Dibble 216 v. Dinsmore 289 v. Eckstein 331 v. Fitch 559 TABLE OF CASES. XVll Clark v. Foster 45 v. Kcndrick 678, 681 v. Lawrie 371 v. Ma»ruder 463 v. Manchester 208, 458 v. Marsiglia 208 v. Needles 99 v. Pendleton 205 v. Powell 246, 354 v. Smith 264 v. Thayer 331 v. Van Northwick 42 v. Webster 649 v. White 364 Clarke v. Allatt 211, 213,438 v. Clark 481, 530 v. Conroe 626 v. Davies 685, 686 v. Dickson 30, 526 v. Dijrnara 283 v. Dixon 520, 525 v. Fell 730 v. Holmes 569 v. Hume 189 v. Lazarus 344 v. Moody 478 v. Moore 189 v. Mum ford 126 v. Nicholson 21, 727 v. Powell 246, 354 v. Rochester & Syracuse R. R. Co. 488 v. Royston 189 v. Smarridge 189 v. S pence 101, 145 V. Tavlor 546, 663, 664 v. Tinkler 497 v. Tucker 641 v. Webb 294 v. Williams 323 v. Wilson 347 Clarkson v. Lawson 546, 663, 664 Clay v. Crowe 332 v. Oxford 3 v. Shackery 737 v. Thackrah 735 v. Turley 71 Clavards v. Dethick 570 Clayton v. Corby 479, 642, 644, 722, 736, 737, 739 v. Stone 498 Cleave v. Moors 33 Clement v. Chivis 540, 546 v. Fisher 541 V. Milner 684 v. Reppard 339 Clement & Hawkes Manuf. Co. r;. Mese- role 235 Clementi v. Walker 500 Clements v. Flight 728 r. Moore 205, 437 v. Pollard 10 v. Williams 407 Clementson v. Blessig 237 Clendaniel v. Tuckerman 118 Clerk v. Laurie 70 Cleveland v. Delmeiler 538 Cleves v. Willoughby 183 Clifford v. Parker 331 v. Thomaston Mut. Ius. Co. 162 VOL. II. b Clift v. Schwabe 173 Clifton v. Hooper 598, 599 v. Litchfield 288 Clipsham v. Vertue 111,362 Cloon v. Gerry 551, 552 Close v. Phillips 29 Closeman v- White 728 Closson v. Staples 550, 551 Clothier v. Webster 495 Clough v. Hosford 182 Clow v. Broaden 195, 196 Clubb v. Hutson 404 Cluff v. Mut. Ben. Life Ins. Co. 1 74 Clute v. Wiggins 532 Coates v. Chaplin 487 v. Stephens 442, 450 Cobb v. Becke 31 v. Hall 30 v. McMechen 101 v. New England Mut. Marine Ins. Co. - 309 v. Stokes 194 v. W r est 264 Cobbett v. Brown 649 v. Ludlam 530 Coburn v. Odell 341, 348 v. Ware 344 Cochran v. Carrington * 30 Cochrane v. Green 292, 315, 373, 376, 463 Cock v. Coxwell 331 v. Gent 287, 666, 675 Cockbum v. Alexander 111 Cockburn, ex parte, re Smith and Lax- ton 322, 323, 324 Cocker v. Crampton 609 v. Musgrove 599, 691, 692 Cocking v. Ward 33 Cockrill v. Sparke 434 Cocks v. Brewer 418 v. Nash 352, 455, 456 v. Purday 500 Cockshott v. Bennett 364 Coddington v. Palaeologo 240 Codman v. Jenkins 181, 1 so Codringtou v. Lloyd 483, 614, 698, 709, 710 Coe v. Clay 200, 252 V. Wise 495, 572 Coffee v. Brian 216 Coffeen v. Brunton 607 Coffman v. Huck 182 Coggfl v. Bernard 67, 68, 99, 485 Coghill v. Chandler 542 Cohen v. Gaudet 490 v. Huskisson 700, 701, 708 v. Southern Express Co. 101 Cohoes Co. v. Goss 380 Coil v. Wallace 206 Coke v. Nethercote 703 Colchester v. Roberts 738, 742 Colchester, Mayor of, v. Brooks 518, 652 Coldham v. Showier 283 Cole v. Cottingham 205 v. Creswell 344 v. Curtis 551,668 V. Goodwin 493 v. Hills 331 v. Meek 111 v. Trail 32 Coleman v. Riches 109, 524 xvm TABLE OF CASES. Coles v. Bank of England 486, 63^ v. Pack 132 v. Turner 324 Collin v. Henley 131 Collard v. South Eastern Ry. Co. 103, 487 Collen r. Wright 45, 46, 260, 520 Collet v. Foster 483 Collet* v. Curling 181 v. Foster 614, 619 Colley v. Streeton 188 Collier v. Clarke 666, 667 v. Coates 30 v. Hicks 702 >■. Pierce 480 Collingbourne v. Mantell 282, 289 Collinge v. Haywood 152 Collins v. Beaumont 418, 419 v. Bristol & Exeter Ry. Co. 100, 101 v. Brook 56 v. Carnegie 539, 546 v. Cave 374, 520 v. Denison 519 ». Evans 151, 518, 519, 524 v. Godefroy 263, 634 v. Hayte 668 v. Hopwood 246 r. Jones 467 v. Middle Level Commissioners 495 v. Prentice 741 v. Rybott 89 Collinson v. Larkins 600 v. Margesson 433 Collis v. Selden 524 564 574 v. Stack 433 Colnaghi v. Ward 501 Colonial Life Assur. Co. v. Home & Colonial Assur. Co. 608 Colson v. Selby 273 Colt v. Root 137 Columbia Ins. Co. v. Lawrence 162 Columbus, Mayor of, v. Howard 145 Colville v. Besly 30 Colvin v. Newberry 489 ( lolwell v. Alger 124 Combe v. Wolf 456 Combs v. Dibble 395 Commissioners of Hamilton Co. v. Mi- ghels 502 Commonwealth v. Boston & Worcester R. R. Corp. 514 u.Clark 119 v. Eyre 611 v. Giles 36 v. Morgan 538 V. O'b-11 661 v. Snelling 37 Compton v. Richards 481 Comyns v. Boyer 726 Concordia, The, 602 Condict v. i hrand Trunk R. R. Co. 101, 102 Conflans Stone Quarry Co. v. Parker 70 Congar v. Chamberlain 256 Congress Spring Co. v. High Rock Spring Co. 608 Conkey v. Milwaukee &c. R. Co. 102 Conkling v. King 288 Conlin v. Charleston 569 Conn v. Coburn 406, 407 Connecticut v. Jackson 31 Connecticut Mut. Life Ins. Co. v. New York & New Haven Railroad 492, 567 Connelly v. Bremner . 18 Conner v. Henderson 259 Connop v. Holmes 393 v. Levy 364, 520 Conrad v. Ithaca 503, 572 Conroy v. Warren 115 Constant v. Chapman 650 Constitution, The, 602 Converse v. Norwich & New York Transp. Co. 102 Cooch v. Goodman 214 Cook v. Batchellor 546, 548 v. Bath 480 v. Castner 25S, 344 v. Cook 543, 660 v. Cox 541 v. Coxwell 298 v. Daggett 30 v. Eield 664 v. Litchfield 334 v. Palmer 595 v. Parham 568 v. Pearce 679 v. Songats 64 V. Swift 246 v. Walker 550 v. Ward 540 v. Wright 131, 392 Cooke v. Biit 714 v. Blake 26, 642 v. Hopewell 446, 454 v. Jackson 609 v. Long 340 v. Seeley 216 v. Stratford 396 v. Waring 562 v. Wildes 659 v. Wilson 490 Coombe v. Capron 553, 668 v. Woolf 398 Coombes, In re 51, 318 v. Noad 730, 731, 732 Coombs v. Bristol & Exeter Railway Co. 94, 487 v. New Bedford Cordage Co. 569 v. Queen's Proctor 391 Coon v. Syracuse & Utica R. R. Co. 568, 569 Cooper v. Adams 598 v. Barton 145 v. Berry 97 17. Bill 731 v. Blandy 687 v. Blick 208,211,449 v. Brayne 303 v. Egginton 688 v. Green 732 v. Hamilton 57 v. Hamilton Manuf. Co. 569 v. Hubback 481, 737 v. Landon 260, 518, 521 v. Lawson 661, 663, 664 v. Lloyd 147 v. Lovering 519 v. Massachusetts Mut. Life Ins. Co. 174 v. Moorecroft 443 v. Norfolk Railway Co. 117 TABLE OF CASES. XIX 288, 289, 290, 392, 445 475 631 3G4, 365, 457 689 655, 726 92 384 325 551, 668 581 57 282, 438 619 56 361 607 412 Cooper v. Parker v. Paynter v. Pege v. Phillips v. Robinson v. Shepherd v. Slade v. Taylor v. Thornton v. Utterbach v. Walker v. Wallace v. Whitehouse v. Wilmot Coopwood v. Wallace Cope v. Doherty v. Evans v. New Eng. Mar. Ins. Co v. Rowlands 246, 354, 355, 402, 404 v. Thames Haven Railway Co. 282 Copeland v. Mercantile Ins. Co. 159 v. New England Marine Ins. Co. 162 v. North Eastern Railway Co. 558 v. Stephens 429 Copeman v. Hart 322 Copp v. Midwales Ry. Co. 229 Coppin, qui tarn, v. Carter 287 Coppin v. Craig 730 Coppock v. Rower 403 Corbett v. Brown 526, 527 v. Packington 47, 69, 477, 484 v. Swinburne 289, 445 Corby v. Hill 573, 574, 582 Corcoran v. Gurney 411 Cordery v. Colville 334 Core v. Wilson 374 Corey v. Bath 514 i'. Ripley 317 Cork v. Moylan 430 Cork & Bandon Railway Co. v. Caz- enove 227, 408 Cork & Bandon Railway Co. v. Goode 227, 452 Cornell v. Moulton 432 Corner v. Shew 123, 124, 249 v. Sweet 324, 364 Cornfoot v. Fowke 392, 519, 524 Comfort h v. Smithard 433 Cornill v. Hudson 431 Corning v. Troy Iron & Nail Factory 625 Cornish v. Abingdon 652, 725 v. Keene 585, 588, 589, 679 v. Searell 182 Cornman v. Eastern Counties Railway Co. 564, 565, 576, 577 Cornwall v. Metropolitan Commission- ers of Sewers 573, 581 Corpening v. Grinnell 317 Corrie v. Stirling 73 Correspondent &c. Company v. Saun- ders 643 Cort v. Ambergate &c. Railway Co. 40, 238, 266 Cory v. Scott 79, 347 v. Thames &c. Co. 236 Cosgrave v. Trade Auxiliary Co. 661 Cossey v. Dijreons 686 348 Costar v. Daviea Costcllo, ex parte, in re Phoenix Life Assurance Co. 228 Cotching v. Bassett 480, 658 Cotesworth v. Spokes 504 Cothers v. Keevor 652 Cottam v. Partridge 431, 434 Cotterill v. Cuff 161 v. Griffiths 481 v. Hobby 594, 655 v. Jones 552 v. Starkie 696 Cottle v. Sydnor 380 Cotton v. Brown 636, 668, 676 v. Godwin 470, 472 v. Wood 516, 564, 565, 574 Couch v. Steel 243, 568, 595 Coughlin v. Knowles 30 Couling v. Coxe 633 Coulson v. Attwood 280 County Commissioners v. Fox 336 Coupland v. Hardman 581 Courtenay v. Earle 355, 477 Cousins v. Nantes 159 v. Paddon 264, 282, 295, 444, 446, 459, 464 Couston v. Robins 324 Couturier v. Hastie 46, 256 Coventry v. Atherton 432 v. Gladstone 109 Cowan v. Braidwood 177, 179, 420 v. Milbourn 377 Coward v. Baddeley 612, 657, 696, 697, 708 v. Gregory 185, 430 Cowdin v. Perry 124 Cowell v. Watts 121,122 Cowles v. Bacon 379 v. Potts 659, 660, 661 Cowling v. Coxe 633 v. Higginson 737, 738 Cowper v. Fletcher 686 v. Green 364 v. Smith 398, 456 Cowpey v. Henley 704 Cox v. Bailey 156 v. Bishop 196 v. Brian 471 v. Burbidge 561 v. Cooper 463 v. Glue 616 v. Hickman 215 v. Joseph 387 v. Leech 57, 58, 282, 304 v. London, Mayor of, 303 v. Mitchell 273 v. Muncey 51, 560 v. Mundy 482 v. Peacock 386 v. Sullivan 57, 483 Coxhead v. Richards 660 Coxon v. Great Western Ry. Co. 1 00 Coy v. Forrester, Lord, 288 Coyle v. Smith 79 Cozzins v. Whitaker 257 Crabb v. Killick 503 Crabtree v. Clark 331 Crafter v. Metropolitan Ry. Co. 565 Craig v. Fenn 417 v. Hassell 554 v. Murgatroyd 160 v. Ward 51 C TABL E OF CASES. 463 Crowlev v. Cohen 158,169 Craapioe Ry. 469 444 Crowther v. Kamsbottom Croxou v. Worthen 79, 506, 508 222, 334 208 Crovzer v. Silling Crozer v. Pilling 484 554 115 63 580 520 461 Cruger v. Armstrong Crump v. Adney 158 v. Lambert 50 Crutcliers v. Wolf 79 471 Crutchley v. London & Bir mingham 4 Railway Co. 15» 609 Cubitt v. Porter 218, 516, 617 32 Cuckson v. Stones 207, 210 ■ 607, 608, 609 79, 80 Cuff v. Newark & New Co. Cullen v. Butler York R . R. 495, 573 162 573 Cumber v. Wane 288, 289 109 Cumberland v. Copeland 499, 501 270 v. Planche 501 • By Co. 572 Cumberland Bank v. Hale 331 617 Cumberland Coal & Iron Co. v. Scall 336, 383 340, 342 Camming v. Colombino v. Hill 448 49, 51 151 v. Shand- 70 289, 349 v. Shaw 486 404 Cummings v. Arnold 458 625 v. Banks 420 . 194 v. luce 126 239 v. Webster 379 519 Cummins v. Mee 370 il Bank 317 Cumpston v. Haigh 731, 733 . w Uimantic, Cunard v. Hyde 164, 413 i; 233 Cundnll v. Dawson 48 170,414 CunlifTe v. Harrison 28 567, 574 v. Whitehead 75 609 Cunningham v. Fonblanque 212 • 6G0 v. Hall 257 564 130 v. Lyness r. Eeardou 575 28 445 Curlewis v. Bird 52, 125 124 v. Mornington 434, 435 ,11 .13, 298, 299, Curran v. Curran 462 361 Currie v. Almond 704, 707 Cn*. 455 Currier v. Boston & Maine K R. 56 Inaon 57 Currier's Co. v. Corbett 480 58 Curry v. Commonwealth Ins. Co. 158 392 v. Walker 661 616 Curtice v. Thompson 580 39 29, 216 Curtis v. Ayrault v. Brown 626 137 590 69 v. Curtis v. Driukwater 538, 542 492, 565 Cro» 623, 728 218 v. Huut v. Mayne 384 596 480, 628 v. Mills 562 123 331 v. Piatt v. Richards 586, 587 32 260 v. Rochester &c. R R. Co. 564 uauwaj It ail way 'Co. 489 Co. 101, v . Spitty Cushing v. Breed 196, 429 234 1 107,860,639 *■? ' 100 113, 162 Cussons v. Skinner Cuthbert v. dimming Cuthbertson v. Irving Cutler v. Dixon 180, 183 213, 438 111, 113 , 198, 430 66) 362 596 v. Gilbreth Cutter v. Bonney 259 532, 533 1 ? » | • • ) , 34f 506 », 348, 349 v. Powell i'. Reynolds 28, 208 , 367, 458 445 292 404 Cutting v. Grand Trunk ] 1 Cutts v. Brainard R.R.Co. 103, 235 101 TABLE OF CASES. XXI Cutts v. Broekway v. Gordon v. Sur ridge Cuxon v. Chadley 380 407 25 292 Czech v. The General Steam Nav. Co. 640 D. Dabney v. New Eng. Mar. Ins. Co. 412 Dailey v. Reynolds 538 Dain v. Wickoff 558 Daintree v. Hutchinson 402 Dakin v. Oxley 363 Dakins v. Wagner 18 Dalby v. Hirst 190, 248 v. India & London Life Assur- ance Co. 415 Dale v. Hall 489 v. Harris 659 Daley v. Norwich &c. R. R. Co. 572 D 'Al lax v. Jones 48 Dalton v. McTntire 25 v. .Midland Ry. Co. 148, 272, 528 v. South Eastern Rv. Co. 515, 516 v. Whittem 130, 504, 505, 656 Daly v. Thompson 591 Dalyell v. Tyrer 492 Dalzell v. Mair 164, 169 Darner v. Hastings 687 Damon v. Moore 559 Dana v. Fielder 235 v. Hancock 458 v. Stearns 406 Dand v. Kingscote 738 Dane v. Kirkwall 436 Danf'orth v. Dewey 30, 458 Dangcrtield v. Thomas 328 Daniel v. Bowles 437 v. Grade 685, 686 v. Metropolitan Ry. Co. 564 Daniells v. Potter 581 Daniels v. Clege 572 552 571 D'Anjou o. Deagle 99 Dansey v. Richardson 533, 550 Danube & Black Sea By. Co. v. Zenos 211 Da Pinna v. Polhill 277, 36S D'Aranda v. Houston 383, 393, 522 Darby v. Harris 505 v. Ouseley 540 v. Smith " 672 Darbyshire v. Butler 89 D'Arc v. London & North Western Rv. Co. 97 D'Arcy v. Lyle 151 Dare u. Heathcote 738 v. Ivey 188 Darling v. Boston & Worcester R. R. Co. 102 Darlington v. Hamilton 187 v. Pritchard 380, 381, 617, 719 Darlow v. Edwards 684 D'Arnay v. Chesneau 328 Darrah v. Bryant 379 Darrel v. Eden 31 Dartmouth, Mayor of, v. Lilley 399 Dartnall 0. Howard 61 Darvil] v. Terry 132 -- V. Melding v. (iregg D'Aubigney v. Duvall 730 Dauchy v. Goodrich 364 v. Salisbury 553 Dauglish v. Tennent 364 366 Daunt v. Lazard 309 Davenport v. Lamson 738 v. Mason 32 v. Rylands 586 Davey v. Warne 675 David v. Conard 32 Davidson, Ex parte 499 v. Bohn 22, 683 v. Burnaud 162 v. Chilman 270, 274 v. Cooper 298, 299, 330, 331, 351, 369, 399 v. Duncan 660, 661 v. Ernest 182 v. McGregor 140, 398 v. Nichols 520 v. Rozier 59, 4S4 v. Wakins 274 v. Young 379 Davies v. Aston 510, 688 v. Davies 87 v. Dodd 75 v. Edmunds 596 v. England 579 v. Griffiths 125 v. Hodgson 134 v. Humfrey 29 v. Humfreys 151 v. Jenkins 483, 552 v. Mann 567, 570, 574 v. Marshall 372, 378, 482, 638, 658, 676 v. Stainbank 374, 399 v. Thompson 16, 17 v. Underwood 186, 427, 441 v. Vernon 620, 731 v. Williams 560, 641, 642 Davis v. Alden 183 v. Barrington 374 v. Bomford 438, 459 v. Bowsher 730 v. Capper 614 v. Chapman 650 v. Clarke 73 v. Coleman 299 v. Curling 577, 581, 632, 675 v. Danks 620 v. Duncan 661 v. Dunn 231 v. Edwards 184 v. Fletcher 710 v. Garrett 490 v. Getchell 625 v. Gillett 203 v. Gowen 80 v. Gyde 348 v. Handy 380 v. Harding 90 v. Holding 402, 403 v. Jenny 331 v. Lovell 633, 934 v. Mann 636 v. Moseley 612 v. Murphy 258 v. New York Central &c. R. R. Co. 571 xxu TABLE OF CASES. . Oswell 620 v. Bapb 324 r. Russell 703 S 687 v. Thomas 380 v. 620, 731 Walton 582 w . liams 558 616, 702 : 99, 639 1 587 . i. 610 Hawkins 743 ' mworth 310 ■;.-, Lord, 660 lamney 532, 534 1 33, 258, 281 ropp 511, 645 Iyer 200, 201 r. Gregory 177 ; . McDonald 330 v. Moore • 676 ince 85 Wrench 113, 159, 410 '.tnl 57 . 532, 534, 654 ;ller 546 35 567 458 654 . i. 542 . 722 hart 365 American Ins. Co. 173 '■• H _- 699 9, 328, 329, 470 . k 145 [ark 602 v. M 257 r. Newall 363, 455, 456 V. I' 558 p. Taylor 698 583 iorn 57 Turner 239 5 Barrett 470 561 De B 666 1 34 1 » ■ 313 Itnon 561 - ■!'..,. 137 i, ithbone 178, 420 H mil 164 124, 132 i ini , Duchess of, 149 380 Ry. Co. 568 573, 669 Smitli" 526 550 1 1 42 rrv Co. 565 24 - 341 ■ 530, 584 hell 341 109 42 Del Hi win Delegal v. Highley Delisser v. Towne Dell v. King Delondre v. Shaw De Longuemere v. Delves v. Strange De Marentille v. Oliver De Mautort v. Saunders De Medina v. Groves 543, 545, 548, 556 556 323, 325 609 Phcenix Ins. Co 160 3 611 217 29, 540, 552, 554 252, 460, 473 599, 710 257, 260 Co. 100, 103, 235 464 528, 612 143 550 57 334 565 481, 530 177 Great Northern Railway Co. 233, 234, 492, 493 v. Noyes 56 Deposit & General Life Assurance Co. v. Ayscongh 393, 394 De Pothonier v. De Mattos 373, 379, 457 Derby v. Johnson 208, 458 v. Phelps 205 Derby, Earl of, v. Taylor 196 Derecourt v. Corbishlev 697, 699, 708 33 196 186 406 679 640 483 558 v. Norman De Mesnil v. Dakin Deming v. Foster v. Grand Trunk It. R. Dendy v. Powell Dengate v. Gardner Denham v. Stephenson Dennehey v. Woodsum Dennett v. Cutts Dennistoun v. Stewart Denny v. Williams Dentw. Auction Mart. Co. 17. Basham Denton v Deriemer r. Fenna Derisley v. Custauce Dermott v. Jones De Roo v. Foster Derosne v. Fairrie De Rothschild v. Royal Mail Ship Co Derrickson r. Cady De Rutzen v. Lloyd Derwort v. Loonier 59, 484 Descadillas v. Harris 348 Deslandes v. Gregory 110 Desmond v. Rice 332 De Symonds v. Johnston 161 v. Sheddon 161 Devaux v. I' Anson 160, 161 v. Steinkeller 526 De Vaux v. Janson 410 v. Salvadore 162 v. Steel 169 Develing v. Ferris 80 Devereux v. Baillay 487 v. Barclay 624 Devett v. Brown 717 Devitt v. Pacific R. R. Co. 570 Devizes, Mayor of, v. Clark 558 De Wahl v. Braune 147, 272, 297 Dewhurst v. Jones 323, 324 v. Kershaw 322 v. Pearson 52 De "Winton v. Brecon, Mayor of, 302 De Witt v. Pierson 424, 427 De Wolf v. New York Ins. Co. 94 Diana, The, 603 Dibble v. Bowater 133, 646 v. Brown 493 Dibdin v. Swann 661 TABLE OF CASES. XX1U 534, 696, 151, 281, Dicas v. Brougham, Lord, Dick v. Tolhausen Dicken v. Neale v. Shepherd Dickenson v. North Eastern Railway Co. Dicker v. Jackson Dickerson v. Ledge Dickey v. Andros v. Linscott v. Maine Telegraph Co. Dickins v. Beale Dickinson v. Bowes 4, v. Burrell v. Gay v. Grand Junction Canal Co. v. Lee v. Maynard v. Miller v. Williams v. Winchester v. Worcester v. Cunningham v. McCoy v. Zizinia Dietrichsen v. Giubelei Digby v. Atkinson v. Thompson Dignam v. Bailey 599, 712 418 459 539 532 Dickson 186, 540, 650, 651, 691, Dillard v. Philson Dillon r. Munic. Corp. Dihvorth v. Sinderling Dimecli v. Corlett 110, 111, Dimes v. Petley Dimmock v. Bowley 550, Dingle *>. Hare 260, 262, Dingwall v. Edwards Dirks v. Richards Divine v. McCormick Dixon v. Bell 561, 564, v. Clark 470, v. The Cyrus v. Fawcus 527, v. Lee v. Nuttall v. Saddler 162, v. Olmstead v. Smith v. Stansfield 730, Dobell v. Hutchinson v. Stevens Dobie v. Larkin Dobsou o. Blackman v. Espie v. Fussy v. Lockhart v. Pearce Dodd v. Acklom v. Burchell v. Grant v. Holme Dodds v. Dodds 515 251 109 538 209 571 79 222 307 258 625 520 550 626 30 533 626 31 561 262 188 189 545 692, 693 432 502 32 203 580 555 652 322 732 258 583 472 243 608 634 222 Dodge v. Perkins v. Pringle v. Stiles Dodsley v. Varley Doe v. Amey v. Amey v. Bucknell 412 402 543 731 249 522 470 620 455 701 464 422 426 741 6 579, 580, 604, 605, 606 59 32 221 263 234 189 715 424 340, 431, 463, 420, 424, 632, Doe v. Burnham v. Clark v. Cochran v . Filliter v. Geekie v. Guy v. Harlow v. Huddart v. Laming v. Liston v. Meux v. Pritchard v. Rowlands v. Sharpie jr v. Wilkinson v. Williams v. Wilson v. Wright Doe d. Egremont v. Graysbrook Griffiths v. Pritchard 341 641 182 618 189 125 618 381, 618, 651, 723 531 314 186 347 186 721 641 429 641 381, 651, 723 368 391 Johnson v. Liversedge 313 Lloyd v. Bennett 393 Marriott v. Edwards Roberts v. Roberts Smith v. Pike Willes v. Martin Williams v. Evans Doggett v. Catterns 312, 687 393 249 392 404 395 542 449 234 448 177 730 330 702 288 56 532 592 173 Doherty v. Brown Dolby v. lies Dole v. Olmstead Dommett v. Young Don v. Lippmann Donald v. Sackling Donaldson v. Thompson v. Williams Douohue v. Woodbury Dooley v. Great Northern Railway Co Doorman v. Jenkins Dore v. Wilkinson Dormay v. Borrodaile Dorr v. Fisher 258, 259, 458 Dorrance v. Hutchinson . 57 Dorsey v. Watson 79 Doswell v. Impey 534 Doty v. Brown 421 v. Wilson i5i Doub v. Barnes 59 Dougal v. Kemble 97 Douglas v. Corbett 550 v. Forrest 177, 179 • v. Holme 28 v. Patrick 470, 471 v. White Douglass Axe Manuf. Co. v. Gardner Dovaston v. Payne Dover v. Rawlings Dowbiggin v. Harrison Dowd v. Chicopee Dowdall v. Hullat Dowell v. Beningrleld v. Steam Navigation Co. 570, 670 Dowgall v. Bowman 471 Down v. Hatcher 445 ; 446 v. Pinto 209^ 213 Downer v. Chamberlin 317 Downes v. Cooper 687 v. Craig 591 Downing v. Funk 132 538 289 259 516 683 122 572 159 556 v. Wilson XXIV man v. Williams - >ce i. Tibbul . ierts . Anglo-Egyptian Co. a v. Hai Drake v. Baker ieckham Mitchell r. Thayer 1 Taper v. Crofta r. Massachusetts ing Co. TABLE OF CASES. Drauglian v. Buntin Drax v. • ipe A in-worth uquet 110 109 G6 4.31 539 109 371, 373 249 8, 27:5 289, 418 36 183, 189 Steam Heat- 45 151 56 256 730, 731 302 65, 308 686 325 578 645 596, 597, 691 712 734 551 152 441 554, 668 200 ihns Mansfield Drew v. A\ ery v. Collin< 1 liver Company Drewe V. Avery v. Lainson ell v. Fowler . S heard liurton lhirton Druininoud v. Dorant v. Pigou Drury p. Macnamara Drury Lane Company v. Chapman 189 ■: Ov Wicklow Railway Co. v. Ck 408 Dubois v. Delaware & Hudson Canal 458 K 556 Van Orden 197 Dubose v. Whiddon 407 . Williams 410 Duckworth <■. Harrison 66, 308 Johnson 515 . Clutten Union, The, 628 S ah 568 W itchorn 454 -ional Life Assurance 173,417 107 122 163 135 136 628, 635, 734 62 495, 572, 577 632, 737 503 45 145 345, 370 545 Tapster 17 694 96 183 686 626 660 Dufaur i Budd ner V. Mackenzie Huff - key Doignan v. Walker l>u: . I indlater inch v. Meikleham r. N i . Railroad Co. . I .'ail way Co Dm North Western Railwai ' k r. IIu: Dun ■■'. ton l:. B. Co. Dun! Dunlop v. Cruger v. (irote Dunn v. Di Nuovo v. Hill v. Murray v. Sayles v. West Dunnecliffe v. Mallett Dunshee v. Grundy Dunson v. New York &c. R. R. Co Dunstan v. Paterson Duppa v. Mayo Dupre v. Langridge Durant v. Palmer Durgin v. Baker Durnford v. Trattles Durrell v. Pritchard Durrum v- Hendricks Dusenbury v. Ellis Dutton v. Gerrish v. Rice v. Solomonson Duvall v. Farmers' Bank Dwight v. Cutler Dye v. Featherdale v. Leatherdale Dyer v. Best v. Homer v. Sanford v. Talcott Dyne v. Nutley Dyson v. Collick v. Wood Dyster v. Battye Dvte v. Hawker 325 237 426, 427, 446 454 208, 212 50 694, 151 589 180 102 709 504 4 571, 671 438 670 481 79 45 183 146, 401 234, 237 80 183 647 503, 647 432 393 480 571 720 717 715 523 444 E. Eades v. Booth Eager v. Grimwood Eagle v. White Eagle Bank v. Smith Eagleton v. Gutteridge Eakin v. Harrison Eales v. Dicker Eames v. Savage v. Sweetser Earl v. De Hart v. Van Alstyne Earle v. Earle v. Hopwood v. Oliver v. Reed Early v. Bowman v. Garrett Eason v. Westbrook Eastabrook v. Union Mut. Life Ins. East Anglian Ry. Co. v. Lythgoe Eastern Counties Ry. Co. v. Broom 552, 621, 698 v.Dorling 617,741, 742, 743 Eastern R. R, Co. v. Relief Fire Ins. Co. 158, 171 Eastern Union Ry. Co. v. Cochrane 139 East Gloucestershire Ry. Co. v. Barthol- omew ] 06 Eastman v. Amoskeag Manuf. Co. 580 v. Clark 215 654 558, 560, 669 103 31 288, 645 208 74 30 147 626 561 471 307 202 407 449 256 498 173 210 74 Co. TABLE OF CASES. XXV Edgar v. Bumstead Edge v. Pemberton Eastman v. Coos Bank v. Keasor v. Meredith Eastmure v. Lawes Easton v. Pratehett East Tennessee &c. R. R. Co. v. St. John 571 East Tennessee & Va. R. R. Co. v. Rogers 100 Eastwick v. Harman 37 Eastwood v. Bain 519, 525, 652 v. Kenyon 137, 281, 394, 397 Eaton v. Bell 31 v. European & N. A. R. R. Co. 495, 573 v. Hill 407 v. Jones 539, 663 v. Lincoln 289, 364, 445 v, Swansea Waterworks Co. 479 v. Welton 478 Eccleston v. Clipsham 268, 269 Eckhardt v. Wilson 9 Eckstein v. Reynolds 470 Edan v. Dudfield 28 Edden v. Ward 21 Eddy v. Herrin 370 v. Stafford 234 Edelston v. Edelston 520, 607 Eden v. Jurtle 340 v. Lexington & Frankfort Railroad 492 157 v. Watson 449 190 v. Strafford 179 Edgerton v. Harlein R. R. Co. 565 v. Page 201 Edick v. Crim 256 Edinburgh, Leith & Newhaven Ry. Co. v. Hebblewhite 226, 284, 451 Edler v. Thompson 269 Edmonds v. Walter 663 Edmonson v. Machell 559 Edmunds v. Lawley 716, 725 v. Pinniger 657 Edsall v. Russell 546, 665 Edward v. Harben 1 2 1 v. Trevellick 2 u Edwards v. Bates 29, 369 v. Baugh 131,' 309 v. Bethell 383 v. Brown 393 v. Chapman 259, 457 v. Gabriel 314 v. Grace 123 v. Great Western Ry. Co. 31, 675 v. Hodges 28S v. Hooper 621, 716 v. Jones 339, 348 v. Lord 566 v. Martin 437 v. Martyn 368 v. Scarsbrook 314 v. Scott 704 v. Tandy 79 v. Temple 463 Edwell v. Grand Junction Railway 493 Egler v. Marsden 184 Egremont v. Pulman 593 Ehrensperger v. Anderson 44 Eichholz v. Banister 256 Eicke v. Noakes 294 Eland v. Carr 464 56 Elbourn v. Upjohn 39 668 Elder v. Beaumont 317, 318, 319, 379, 441 502, 580 v. Bemis 527 381, 465 Eldridge v. Mackenzie 687 338, 341 Elgar v. Watson 1S9 Elgie v. Webster 215 Elkin v. Baker 373, 376, 463 v. Janson 412 Elkington v. Holland 58 El kins v. Boston & Albany R. R. 572 Ellah v. Leigh 148 Ellen v. Topp 50, 51 Ellery v. New Eng. Ins. Co, 162 Ellington v. Ellington 558 Elliot v. Aiken 201 v. North Eastern Ry. Co. 605 Elliotson v. Feetham 584, 667 Elliott v. Allen 612, 614, 674, 707 v. Fitchburg R. R. Co. 625 v. Heginbotham 28 v. Mason 371, 375 v. Morgan 269, 449 v. Pybus 234, 265 v. Royal Exchange Ass. Co. 171, 309 v. Swartwout 370 v. Thomas 394 Ellis, In re 324 v. Abrahams 555, 556, 668 v. Chinnock 260, 275, 475 v. Duncan 626 v. Great Western Railway Co. 567 v. Kimball 539 v. Lafone 164, 412 v. London & South Western Ry. Co. 517 v. Sheffield Gas Co. 573, 581 v. South Western Ry. Co. 670 v. Taylor 673 v. Willard 109 Ellisson v. Isles 673 Elmore v. Naugatuck R. R. 100, 101 Elsee v. Gatward 59, 266, 477 v. Smith 555 Elting v. Vanderlyn 132 Elves v. Croft 135, 136 Elwell v. Grand Junction Railway Co. 636 Elwood v. Bullock 644, 743 v. Christy 587 Emanuel v. Dane 262 Emblin v. Dartnell 222, 349 Embrey v. Owen 625, 736 Emerson v. Badger 520 v. Baylies 31 v. Brigham 257 v. Clayton 528 v. Davies 500 v. Lashley 420 v. Thompson 388 Emery v. Barnet 427 v. Bartlett 424 v. Chesley 598 v. Clark 670 v. Estes 341 v. Hobson 29 v. Webster 450 Emhlen v. Myers 580 Emmens v. Elderton 208, 209, 213 Emmerton v. Matthews 257 Emmet v. Dewhurst 458 Emmett v. Norton 401 XXVI TABLE OF CASES. Emmett r. Standen li 1 >;«\ idson . ! V. Marsden ». Wall v. Watson ] Jeheart v. Muore Enthoven v. 1! ] Ellis I i: li Eric! .rk worth . I fnion Loco. & Express 450 254 233 230 156 737, 739 88 305, 307 220 161, 163, 165 181 532 112,118 v Hudson River R. R. Co Erskine v. Thames Lund v. M'Clean . Bowden •ter Binney Jackson Etti: _ - nylkill Bank European & Australian 135 453 565 103 17 25, 74 112, 362 538 32 89 334 Mail Co. v. Ro'val Mail Steam Packet Co. 69, 312 I Ry. Co. v. Westall 324 Bremride-e 278. 374 Bremridge ilins v. Davits . Downes I Idmonds v. Elliott 1 Harlow v. Harries •nes v. Kymer V. Lancashire Co. v. Lewis v. Lisle v. Maners . ' ! "ley v. Powis v. Prosser v. Robins v. Sanders v. Usscher v. Vaughan Walton v. Watrons . Whitehead Wright . R. R. son -. Patterson . Ritchie I. . Desboroagh ■ I.' Wella I Bell v v. Smith I v. < rraham .1 v. Stark 3 -veet Ewer v. Jones 524, 652 685 294 393, 519 424, 511, 592, 687, 688 98. 118 539, 546 543, 549 214, 324 341 & Yorkshire Ry. 229 727 583 650 52, 125 288, 327, 365, 366 464 254 268 117 249 482, 558, 560 57, 483 4 509, 510 571 32 288 64 66 416, 417 433 466 449 527, 717 603 483 729 101 719 Co. v. Hiatt Exall v. Partridge 156, 537 Exeter Bank v. Sullivan 434 Exon v. Russell 222 Eyles v. Ellis 444 Eyre v. Archer 323 v. Dunsford 527 v. Higbee 622 v. Waller 363 Eyton v. Littledale 463 F. Fagg v. Borsley 18 v. Xudd 33 Eahy v. North 209 Fair v. M'lver 237 Fairchild v. Bentley 561 v. California Stage Co. 565 Fairlie v. Denton 292 Fairman v. Gakford 208 v. Ives 660 Fairmaner v. Budd 262 Fairmount & Arch St. Passenger Ry. Co. v. Stutler 560 Fairthorne v. Donald 465 Falcon v. Benn 446 Fales v. Russell 332 Fallick v. Barber 233 Fallows v. Bird 441, 450 Fall River Iron Works v. Old Colony &c. R. R. Co. 580 Falmouth v. Roberts 298 Falmouth, Earl of, v. Penrose 248 v. Thomas 117, 189, 190, 248 , 294, 458 Fancourt v. Bull 726, 727 Fannin v. Anderson 435 Fanning v. Chadwick 216 Fanshaw v. Peet 73 Farcy v. Lee 36 Parish v. Reigle 565, 566 Farley v. Banks 555 v. B riant 144, 400 Farmer v. Champneys 2 Farmers' & Mechanics' Bank v. Wih Farmers' & Merchants Bank v. Lake Champlain Transportation Co. 100, 566 Farmington v. Brown 79 Farnum v. Concord 580 Farnwork v. Packwood 533 Farnworth v. Hyde 166 Farr v. Ward 28, Farrance v. Elkington 194 Farrand v. Marshall 604 Farrant v. Barnes 360, 490 v. Olmius 192, 204 Farrar v. Beswick 595 Farrer v. Duflinne 217 v. Granard 148 v. Hutchinson 445, 446 Farwell v. Boston & Worcester R. R. Corp. 568 Faulkner v. Chevell 287 v. Johnson 457 Faviell v. Gaskoin 201 Favor v. Philbrick 103 Fawcett v. Cash 209, 210 Fawcett v. Yorkshire & North Midland Ry. Co. 517 TABLE OF CASES. XXV11 Fawcus v. Sarsfield 167,411 Fin don v. M'Laren 646, 688 Faxon v. Mansfield 264 v. Parker 304, 307, 402, 404, Fay v. Prentice 583, 629 436 v. Smith 331 Finlay v. Bristol & Exetei Ry. Co. 183 Fazakerly v. McKnight 285, 299, 457 Finleyson v. Mackenzie 330 Feagan v. Cureton 341 Fireman's Ins. Co. v. Powell 162 Fearne v. Felica 333 Firmin v. Crucifix 24 Feather v. Reg. 587 Firmstone v. Wheeley 564 Featherstonhaugh v. Bradshaw 181 Firth v. Thrush 76 Feay v. Camp 30 Fischel v. Scott 241 Feater v. Heath 45 Fischer v. Aide 213, 450 Felch v. Allen 569 Fish v. Clark 99 v. Taylor 125 v. Masterman 164 Felkner v. Scarlet 559 v. Richardson 131 Fell v. Knight 531, 533, 654 Fisher v. Algar 506 Fellows v. Stevens 288 v. Bell 325 Feltham v. Cartwright 658 v. Bridges 24 v. England 568 v. Dewick 587, 681 Fenn v. Grafton 482 v. Magnay 3,-713 v. Griffiths 181 v. Mellen 519 Fennings v. Grenville, Lord, 518, 536 v. Pomfret 74 Fentiman v. Smith 627 v. Prowse 573, 581 Fenton v. Clark 209 v. Shattuck 370 v. Ellis 33 v. Snow 2, 60 Fenwick v. Laycock 402 v. Wainwright 38 v. Schmalz 110 Fisk v. Gray 90 Ferguson's case 655 v. Hicks 518, 652 Ferguson v. Carrington 28 Fiske v. McGregor 137 v. Fyffe 31 Fitch v. Jones 73 ,339 , 345, 395 v. Mahon 420 v. Pacific R. R. 570 v. Mitchell 9, 33, 121 v. Sutton 288 Fermor's case 392 Fitchburg & Worcester R. R. Co. Fero v. Ruscoe 663 Hanna 102 Ferrer v. Owen 51,63 Fitt v. Cassanet 264 282, 457 Ferrers, Earl of, v. Robins 42 Fitts v. Hall 407 Ferry v. Williams 250, 251 Fitzball v. Brooke 501 Fesenmeyer v. Adcock 28, 32 Fitzgeral v. Redfield 539 Fessard v. Mugnier 324 Fitzgerald v. Dressier 142 Fetrow v. Wiseman 406 v. Graves 51 Feversham v. Emerson 651 v. Williams 80, 335 Few v. Backhouse 422 Fitzherbert v. Mather 392 Fewings v. Tisdal 208, 210 Fitzhugh v. Wiman 109 Fidgett v. Penny 283, 294, 444 Fitzjohn v. Mackinder 556 Field v. Adams 648, 699 Fitzp'atrick v. Bourne 32J v. Farrington 295 Fitzsimons v. Englis 580, 630 v. Ireland 598 v. Joslyn 392 v. Lelean 228 Fivaz v. Nicholls 404, 498 v. Mitchell 506, 507 Flagg v. Worcester 626 v. Newport &c. Ry. Co. 689 Flanders v. Stewartstown 13 v. Robins 91, 290, 354, Flandreau v. Downey 380 405 Flax & Hemp Co. v. Ballantine 116 v. Taylor 22 Fleming v. Power 538 v. Woods 330 Flemm v. Whitmore 137 Fielder v. Ray 181 Fletcher v. Fletcher 614, 707 Fife v. Bousfield 245 v. Gillespie 110 Fifield v. Maine Central &c. R R. 130 v. Great Western Ry Co. 228 v. Northern R. R. 569 v. Inglis 162 Fifty Associates v. Tudor 480 v. Lechmere 270 Figgins v. Cogswell 546 v. Manlier 645 v. Wyllie 125 v. Marshall 44 Filben v. Daughterman 538 v. Rylands 563, 565, 567 Filby v. Miller 59, 484 v. Tayleur 236, 267 Fillieul v. Armstrong 212 Flight v. Clarke 403 Filliter v. Phippard 578 v. Cooke 9 Filmer v. Burnaby 369 v. Gray 371 Finch v. Blount 620, 725 v. Leman 404, 550 v. Brook 470, 471 v. Maclean 221 v. Cocken 90, 310 v. Smale 22 v. Miller 189 v. Thomas 479, 482, 513, 584, 637, ffinden v. Westlake 660 676 .111 TABLE OF CASES. -. i r. Co i 5. J, R. « I ! 297 160 566 431 421, 423 621 31 430 405 604 404 500 260 209 47o | 294, 395, 403 43/ I 402 145 ..,0 560 ren 659, 660 363. rth 1 8G v. 1 8, 54, 55 1 argR. R. Co. 569 406 649 675 :nan 42 5 1 ."> -on 547, 548 retta 362 land 252 Wil-on 466 we 436 4<)t; 495 ific R. R. Co. 72'.i 686 29 370, 662, 664 215, 216 I ugland 486 120 3-4 478, 526, 527 599, 693 7, 434, 444,455, 458 722 254 570 -on 4 1 9 29 Co. 415 249, 183 1 < 'o. 557 [ 721 547, 661 Fowkes v. Manchester Assurance Asso- ciation 176 > 415 Fowle v. Bowen 659 v. Welch 156 Fowler v, Bott 183, 186 v. Dorlon 532 v. Dowdney 539 17. Mutual &c. Ins. Co. 174 v. Roberts 302 v. Scottish Marine Ins. Co. 164 v. Shearer 32 Fowles v. Bowen 539, 540 Fox v. Brodrick 662 v. Frith 74, 443 v. McGregor "29 Foxcraft v. Lacy 539 Fov v. London & Brighton Ry. Co. 577 " v. Troy & Boston R. R. Co. 100 Frammell v. Little 562 France v. White 148, 149, 150, 612 Francis v. Baker 278 v. Cockrell 566 v. Hawkesley 433 v. Koose 548 Frank v. Edwards 399 Frankland v. Cole 60, 484 Franklin v. Carter 405, 426, 427, 430, 688 v. Fisk 626 v. Long 259, 459 v. Miller 278, 457, 458 v. South Eastern Railway Co. 515 Franklin Bank v. Cooper 399 Franklin Fire Ins. Co. v. Coates 159 Franks, Ex parte 148 v. Depienne 149 Frantz v. Leahart 612 Frankum v. Falmouth, Earl of, 626, 627, 628, 630, 635, 637, 649, 655, 676, 689, 734 Fraser v. Berkeley 655 v. Jordan 347 v. Newton 330 v. Pendlebury 380 Frav r. Blackburn 534 v. Fray 540, 662 v. Vowles 57, 58, 62, 483 Frayes r. Worms 381, 422 Frazer v. Bunn 212 v. Hatton 243, 244 v. Kimler 561, 562 v. Welsh 346 Frazier v. Brown 626 1 rederick v. Cotton 74 Free v. White 3 Freeholders v. Strader 502 Freeman v. Baker 521 v. Boston 233 v. Boynton 332 v. Cooke 380 v. Crafts 440, 443 v. Otis 31 v. Rosher 621 v. Taylor 113 Freemantle v. Loudon & North Western Railway Co. 578 - v. Cameron 574 Freestone v. Butcher 147 Freemont v. Ashley 37 French '•. Arthur 339 v. Bank of Columbia 79 v. French 294 TABLE OF CASES. XXIX French v. Phillips 505 v. Styring 28, 216 v. Vinin-;- 257, 258 Freshney v. Wells 725 Frewin v. Phillips 479 Friend v. Dennett 282 v. Harrison 404 Frink v. Green 455 Frith v. Wollaston 319 Fromont v. Coupland 567 Frost v. Gage 31 v. Jackson 458 v. Knight 205, 206 Frothingham v. Everton 295 Fruhling v. Schroeder 32 Fry v. Bennett 538, 540, 662, 663, 664 v. Chapman 181 v. Hill 28 v. Malcolm 177, 420 Fryburg v. Osgood 434 Frye v. Barker 434 Fryer v. Andrews 22 v. Kinnersley 659, 660 v. Roe 221 Fullenwider v. Mc Williams 550 Fuller v. Bean 234 v. Brown 209 v. Chicopee Manuf. Co. 626 v. Coats 532 v. Fenwick 190, 192 v. Wilson 524 v. Wright 463 Furbish v. Goodnow 137 Furlong v. Polleys 235 Furman v. Applegate 559 v. Parke 233 Furneaux v. Fotherley 644 Furness v. Meek 278 Furnival v. Coombes 11 v. Grove 427 Fussey v. Gordon 37 Futcher y. Hinder 709 Fyfe v. Bousfield 246, 287 G. Gabardi v. Harmer Gabay v. Lloyd Gabriel v. Dresser Gadd v. Bennett Gadsden v. Barrow Gahagan v. Boston & Lowell R. R. v. Cooper Gainsford v. Carroll Gale v. Capern v. Dalrymple v. Lewis Gales v. Holland Gallagher v. Humphrey v. Piper v. Thompson Galloway v. Bird 591, v. Keyworth v. Ogle Gallup v. Albany R. R. Galsworthy v. Strutt 136, 203, Gal way v. Hollo way Galwey v. Marshall Gambart v. Ball 22 454 162 240 ; 290 553 126, 711 Co. 571 501 235 465 669 315 683 582 568 57 592, 687 51 182 200 204, 217 99 539 501 Gambart v. Summer 501, 643 Gambrell v. Falmouth, Lord, 506, 508, 511, 645 Gammon v. Howe 203 Gandy v. Jabber 581 Gannon v. Hargadon 626 Ganson v. Madigan 235 Garbett v. Vale 714 Gardener v. Alexander 459 v. Crosedale 163 Gardiner v. Gray 257, 261 v. Harback 331 v. Williams 545 v. Williamson 179, 504 Gardner v. Buckbee 380 v. Chapman 325 v. Lane 380, 458 v. Maynard 337 v. Slade 660 v. Walsh 331, 338 v. Webber 394 Garland v. Salem Bank 79 Garlinghouse v. Whitwell 379 Garnett v. Backhouse 518 Garnett &c. Company v. Ferrand 534 v. Sutton 463 Garrard v. Cottrell 152 v. Harding 443 v. Hardy 25 Garratt v. Hooper 271 Garrett v. Dickerson 540, 659 v. Handley 216 Garrigues v. Coxe 160, 162 Garris v. Portsmouth &c. R. R. Co. 564 Garritt v. Sharp 480, 637 Garrod v. Simpson 323, 324 Garton v. Bristol & Exeter Co. Gascoyne v. Edwards Gas Light Company v. Turner Gass v. New York &c. R. R. Co 99, Railway 358, 489 309 402 101, 102 470 659 675 615 661 106 Gassett v. Andover v. Gilbert Gaston v. Great Western Railway Co. Gates v. Bayley Gathercole v. Myall Gatliffe v. Bourne 25 Gatty v. Field 30, 396 Gaunt v. Taylor 384 Gauntlett v. King 505 Gautret v. Egerton 574 Gaved v. Martyn 626 Gavetti;. Manchester &c. R. R. Co. 565, 571 Gawler v. Chaplin Gawtry v. Doane Gay v. Lander v. Matthews v. Minot v. Union &c. Ins. Gayetty v. Bethune Gayford v. Nicholls Gaylord Manuf. Co. v. Gaynor v. Old Colony Co. Geach v. Ingall Gee v. Lancashire &c. v. Smart Geer v. Geer Geere v. Mare 599 80 221 591 120 Co. 173 741 573, 604 Allen 257 & Newport Ry. 571 Ry. Co. 415, 417 103 371,378 3C 364, 367 XXX -liner 288,348 ,hlU o , HI I Dis nnt Co. r. Stokes J--* Shurman 360 ralMut. Sherwood 162 ■SfM6,655 f S ambers 231,' 591, 592, 685 '•• VuU Ifi v. Skivington 2D J ■■ Dawson lbi Yorkshire Railway 236 . Dickenson 6 <^ ibel 480 233, 519, 520, o2d a Market Manuf. Co. 62o So Morgan & °~ Mynns Mather TABLE OF CASES. . Dale B ' _- _ un Gibbons u. B r. Essex, Sheriff of, p. Maynall v. Mottram ■ uuillon Gibbs v. Bryant v. Merrill v. Pi 78, 334 624 300, 469 650 354 595 552 26 456 31,32 407 489, 640 . Trustees of Liverpool Docks 495 Gibscn ■:. Bell 467 .-. Bradford 169 (rand 678 Bruce 364 I idd 451 irruthers 54 I rick 93 tver • 107 , . i »oeg 0. Harris v. Holland v. Ireson v. Kirk v. M ,-. Pacific R. R. Co. mall v. Wells Winter v. Penning . Blake ■ ker 198 278, 279 235, 281 504, 646, 688 181, 424 216 569 160, 167 536, 537, 628 455 324 539 542 289 99, 105,276, 280,355,486 49 '• B 30 nwenck 407, 561 Williams 57 552, 553 37 78 517 Tale Railway Co. 502 - ee Lake Co. 627 >-. Washington 201 ' n "' r 334 30 156 586 234 625 180 343 586, 678 608 313 565, 571 134 569 485, 504 131 233 659, 660 568 29 210 64, 65, 308 530, 587 550 561 710 607, 695 603 361 482 565, 572 56 420 622, 732 323 39 183 ».Lewis 170, 171,414 Glenman v. Dickenson 331 Glenn u.Noble 115 Glidden v. Unity 380 Gloucester Bank v. Salem Bank 333 Glover v. Black 169 v. Dixon 20, 642, 673 137, 397 614 505 454 433 37 177,420 442 322, 324 58, 61 Gillet v. Maynard Gillett v. Abbott v. Green v. Hill v. Johnson v. Mathews v. Whitmarsh v. Wilby Gillott v. Esterbrook Gilrnan v. Cousins v. Deerfield v. Dwight v. Eastern E. R. Corp. v. Elton v. Kibler Gilmore v. Lewis Gilpin v. Fowler Gilshannon v. Stony Brook R. R. Gingell v. Purkins Giraud v. Richmond Gisborne v. Hart Gittens v. Symes Given v. Webb Gladman v. Johnson Gladwell v. Blake v. Steggall Glaholm v. Barker v. Hays Glare v. Harding Glassey v. Hestonville &c. R. Co Gleason v. Clark v. Dodd Gledstane v. Hewitt Glen, Ex parte v. Davidson v. Dungey tilliat v. Pawtncket Mut. Ins. Co. 170, 414 v. Halkett Glynn v. Houston v. Thomas Glynne v. Thorpe Goate v. Goate Goatley v. Herring Godard v. Gray Goddard v. Smith Godden, ex parte, in re Shettle Godefroy v. Dalton u.Jay 58,61,483 Godered v. Armour 332 Godmanchester, Bailiffs &c. of, v. Phil- lips 642, 722 Godsall v. Boldero 415 Godson v. Good 270 Godwin v. Culley 433 v. Francis 45, 46 Goff v. Great Northern Railway Co. 552 v. Harris 130, 449 v. Mills 634 v. Behoboth 32 Gold v. Bissell 598 Golden v. Manning 107 Golderman v. Stearns 539 Goldham v. Edwards 459, 591 Golding v. Page 553 TABLE OF CASES. XXXI Goldrich v. Ryan Goldshede v. Cotterill Goldsmid v. Hampton Goldstein v. Foss Goldstone v. Osborne Goldthorpe v. Hardman Golladay v. Bank of the Union Gomme v. Franklin Gompertz v. Denton v. Pooley Good v. Cheeseman. v. French Goorlale v. Tuttle Goodall v. Dolley v. Thurman Goodburne v. Bowman Goode v. Goldsmith v. Job Goodenow v. Tyler Goodloe v. Clay Goodman v. Boycott v. Chase v. Gay v. Harvey v. Pocock v. Simonds v. Taylor Goodnow v. Smith Goodrich v. Stanley v. Willard v. Yale Goodridge v. Ross Goodright v. Vivian Good speed v. East Haddam Bank Goodthorpe v. Hardman Goodwin v. Cremer v. Culley v. Daniels v. Morse v. Noble Goodwyn v. Cheveley 349, 316, 442, 137, 208, v. Douglass 446, 258, 344, 196, 429, 648, 711, 17. V. V. V. Goodyear v. Weymouth, Mayor of, Goold v. Chapin Gordon v. American Ins. Co. v. Bowne Ellis 443, Harper Laurie Manchester & Lawrence R. R. v. Mass. F. & M. Ins. Co. v. Norris 235, v. Rae 140, 374, v. Rimington v. Rolt v. Sea, Fire, and ance Society v. Strange v. Whitehouse Gore v. Gibson v. Grey v. Lloyd v. Wright Gorely v. Gorely Goresuch v. Cree Gorissen v. Perrin Gorrell v. Snow Gorton v. Falkner Gosden v. Elphick 258 350 319 547 309 577 79 147 259 375 364 551 626 79 206 546 450 433 42 32 728 140 561 345 209 345 696 445 288 729 90 406 536 502 632 454 434 662 652 430 712 94 265 493 160 162 463 619 52 492 158 237 377 167 621 Life Assur- 220 444 237, 381, 423 369 707 693 426 372 371 258 552 510 674 598, 692, 38, 294, 241, Armstrong Goslin v. Clark Goss v. Nugent, Lord, Gossett v. Swindon Gott v. Atkinson v. Gandy Goucher's Patent, Re Goudoin v. Lewis Gough v. Boyar v. Bryan v. Cribb v. Farr v. Findon Gould v v. Barnes t\ Barratt v. Boston Duck Co v. Coombs v. Martyn v. Oliver v. Thompson v. Webb Gouldstone v. Royal Ins. Co. Goulon v. Harper Gover v. Elkins Gowan v. Forster Gowen v. Emery v. Shaw Gowens v. Moore Gower v. Dedalzen Gowland v. Warren Grace v. Adams v. Morgan v. Wilmer Grafton v. Armitage Grafton Bank v. Kent Graham v. Allsop v. Davis v. Ewart Gracie Ingleby Partridge Peat Pitman Granger v. Collins v. Dacre v. Raybould Granite Railway Co. v. Bacon Grant v. Beard v. Chase v. Craigmiles v. Ferguson v. Gunner v. Jackson v. Kidwell v. Moore v. Moser v. Norway v. Sondes v. Wiley Grasselli v. Lowden Graves v. Ashford Berdan 455, 553, 32, 35, v. v. V. V. 700, 701, 702, 499, Gray Legg v. v. v. Carr v. Chamberlin v. Cox v. Darland v. Jackson v. Milner 257, Pingry 47, 401 457, 458 28 400 202 586 675 636 670 554, 668 205 220 131 4 553 625 283, 294 626 133, 411 182 208, 212 171 594 448 , 434 151 183 5, 90 460 317 97 506 9, 55 28 374 53 96 603 623 270 462 615, 717 339, 341 188 98, 118 282 298 520 480 30 374 642, 722 318 336 551, 552 708, 710 109 16 206 135 500, 501 186 237 118 184 260, 261 559 100, 102 73 380 X-VKU TABLE OF CASES. 581 500 32 309 57, 58 493 Pollen Ainringe Wilkin- .. rn K. Shepherd r. Taylor 103, 4>8 , Haywoo I mpany v. Sharpies ». i?. Bem v. Blake o. Goodman 228, Redroayne Rimell 626 602 563 566 493 103 95, 356, 357 Co. Great Rj- Co. of Canada b Braid Ashlin rn Counties By . Humphreys Cenl al R. U. Bartlett Hart rum >•. Baverstock Beavan v. Bi V. Hut: v. Cresswell v. Davis P. Kale? am Jackson Jan 566 237 681 269 626 42 39 700 63, 472 393 443 523, 543 137, 140, 142, 151 715 186, 202, 428, 430 483, 710 346 312, 727 58 430 London General Omnibus Co. i'. Marsh v. Price Kill v. Shewell Smithies 6 Ward Bishop ioddard v. B i s < ombe 1 Gray DOW v.] Parker aing '■■ Wilkinson ■ilati'l v. Chaplin • ' [c( lolley - Mi Lellan Halliday Stoker v. Vernon Hindley . Ifurd < ireenwood Seymonx Taylor . Brunswick, Duke of, rill 502, 582 464 136, 203, 204 249 729 350 75, 329, 346 324 500 151 306 655, 676 216 624 245, 246 620 570 626 206 374, 376, 451 593, 627, 630, 631 205, 437 182, 183 79 675 558 568 195 340 725 498, 663, 724 595 Gregory v. Derby v. East India Co. v. Harman v. Hartnoll v. Hill r. West Midland Ry Gregson v. Rush Grenfell v. Girdlestone Gresty v. Gibson Greton v. Smith Greville v. Chapman Grew v. Hill Grey v. Friar v. Pullen v. Quin Grice v. Lever Gridley v. Dole Griffin v. Coleman v. Deighton v. Parsons v. Richardson v. Sanbornton Griffinhoofe v. Daubuz Griffith v. Matthews Griffiths v. Dunnett v. Franklin v. Gidlow v. Jones v. Lewis v. Marson v. Owen v. Payne v. Perry v. Stevens v. Teetgen Griggs v. Austin v. Smith Grimes v. Harwood Grimsley v. Parker Grimstead v. Briggs Grimwood v. Barrett Grindell v. Godmond Grindley v. Booth Grinham v. Willey Grinnell v. Cook v. Wells Grissell v. Bristowe v. Bobinson Griswold v. Griswold v. Sabin Grizewood v. Blane Grizzle v. Frost Groborn v. Ingleby Grocer's Bank v. Kingman 555 486 124 442 699, 700 Co. 358, 487 728 434 324 201 540, 545 676 352 573 40 718 215, 216 703 591 697 380 580 152 590 697 383 568, 579, 669 611, 689 539, 542, 544, 548 627 289, 348, 350 333 235, 237 457 558, 560 29 380 109 448, 450 331 352, 463, 464 401 530 613, 614 532, 533, 729 559, 560 93 59 292 235 396 569 274 139, 399 Grocers' Company, The, v. Donne 495, 580, 605, 607 185 152, 156, 405 466 54, 467 273 614 652 Grogan v. Magan Groom v. Bluck v. Mealy v. West v. Wortham Groome v. Forrester Grose v. Hennessey Grote v. Chester & Holyhead Ry. Co. 566 Groucott v. Williams 563, 574 Groundsell v. Lamb 280, 282, 459 Grout v. Enthoven 333 Guard v. Bisk 538 Gubriel v. Dresser 26 Gudgeon v. Bessett 181 TABLE OF CASES. XXX1U Guest v. Elwes Gulick v. Gulick Gull v. Lindsay Gulliver v. Cosens v. Gulliver Gummer v. Adams Gurney v. Hill v. Hopkinsou v. Howe v. Bawling v. Womersley Gurriu v. Copera Guthrie v. Fiske v. Thompson ( lutsole v. Mathers Guy v. Gregory Guyard v. Sutton Gwinnell v. Herbert G wynne v. Burrell H. 649 216 137 512, 684 372 351 221 310 444 383 30, 458 324 10 251 276, 541, 547, 549 543 148, 272 332, 451 354 Hackett v. Middlesex Manuf. Co. Haddon v. Ayres Haddrick ?•. Heslop Hadley v. Baxendale v. Green v. Taylor Hafford v. Bedford Hagan v. Hendry 540, Hagar v. New Eng. M. M. Ins. Co. Haggerstone v. Dugmore Haigh v. Belcher v. Ously Hailes v. Marks 703, Haines v. Tucker Haire v. Wilson Hakes v. Hotchkiss Haldeman v. Bruckhardt Hale v. Baker v. Bates v. Gerrish v. Passmere v. Rawson v. Wash. Ins. Co. Hales v. London & North Western Co. 100, 103, Halford v. Hankinson v. Kymer Halifax v. Chambers 425, Halkead v. Yonug 160, 163, Halkett v. Merchant Traders' Assur. Hall's Appeal Hall v. Bainbridge v. Betty v. Booth v. Burgess v. Burrows v. Cazenove v. City of London Brewery Co v. Coates v. Cole v. Conder v. Corcoran v. Davis v. Fearnley v. Featherstone v. Hicks t;. Hollander VOL. II. 156, 103, 573, 659, 704, 104, 174, 428, 168, Co. 252, 181, 218, 219, 340, 613, 341, 569 268 668 236 421 581 503 662 162 648 718 306 707 237 540 132 626 448 263 406 29 241 162 489 479 415 656 169 159 134 218 253 707 183 520 185 200 71 347 443 461 717 696 345 520 560 Hall v. Hubfarn v. Janson v. Johnson v. Leigh v. Lund v. Marston v. Middlcton v. Odber v. Palmer v. Popplewell v. Poyser v. Rupley v. Suydam v. Swansea, Mayor of, v. Swift v . Tapper v. White v. Williams v. Wright Hallen v. Runder Hallett v. Dowdall v. Wigram Halley, The, Hallifax v. Chambers Halliwell v. Morrell Halstead v. Shclton Hamaker v Eberly Hamblin v. Bruck Hambro v. Hull Fire Ins. Co. Hamburgh v. Wilke Harner v. Knowles Hamilton v. Colwell v. Cunningham v. Ganyard v. Granger v. McPherson v. Kickerson v. Sneddon v. Spottiswoode v. Watson Hamlin v. Great Northern Ry. v. Stevenson Hammack v. White Hammatt v. Emerson Hammond v. Collis v. Colls v. Howell v. Rogers v. Root Hanbury v. Guest Hancke v. Hooper Hancock v. Austin v. Caffyn v. Haywood v. Noyes Hancox v. Fishing Ins. Co. Hand v. Baynes Hankin v. Bennett Hanmer v. White Hanna, The, Hanna v. Mills Hansard v. Robinson Hanslip v. Padwick Hanson v. Boothman v. Edgerly v. Royden v. Stevenson Hapgood v. Batcheller Harbert v. Edgington Harcourt v. Wyman 121 133 568, 579 268 628, 736 31 440 176,421 404 26 290, 337 208, 458 ■ 66S 248 627, 628 384 231 374, 420 206, 437, 438 130, 250 275 133 671, 694 425, 428, 656 253 78, 334 132 338 453 214 605, 606 4 42 257 404 103 107 412 315 399 Co. 206, 491 408 564 344, 519 428 190, 658, 721 534 603 596 88 607 504 152, 155, 537 217 680 158, 159 103 153, 157 177 603, 694 234 337, 346 254 308 393, 518 243 189 42 437 193 XXXI V TABLE OF CASES. ;ing c c. Vermont &c K. K. Co. I rwood r. South Yorkshire 516, on p. Hesketfa nes i . mt _• -combe p. 1 Bull v. RandaD Hantaan v. Bcllhouse I ...tli Prowd rick p. Moss Hardy v. - Hare r. Harty v. Unity p. Hot-ton r. Wai Harg >ne Hargrave p. Le Breton Eolden Parsons Shewin Barker p. Anderson : TV Harlt enwood p. K a ian p. ( larke Johnson p. Kingston Han melius 209, Steel Ban Dedrick Harnett p. Maitland Hamor p. < rravcs Harper p. Charlesworth I St. Louis R. Little Phoenix Ins. Co. Williams Harrington p. Boggart p, McMorris r. Snyder M rat ton Harris p. Baker p. Bevan v. Brooks p. Butler p. ( »-. 1 1 ■vin p. Mantle tery p. Muskingum &e. Co. irn v. Reynolds >■. Biding ~ Minders t\ Separks v. Thompson v. Wall v. Willis Harrison, In re v. Bailey v. Barnby 568 463 By. Co. 573, 581, 582 299, 351 182 137 288 401 434 564 56 519 289 520 51 581, 675 463 135 70 363 593, 594 228 257 549 3 137, 140 686 116 331 273, 318 195, 196, 429 107 61 297 210, 212, 438 333 90 188, 536 241 717 R. Co. 569 45 175 32 62, 254 464 145 258, 344 577, 581 197 374 558, 669 505 590 431 190 208 13 56 309 564, 578, 606 177 207 659 406 655 318 79 686 Harrison v. Beccles v. Berkley v. Bevington v. Bray v. Bush Cage Central B. R. Chilton Clifton Close Cotgreave Creswick Dixon Douglas Ellis" 384 567 541, 546 512 659, 660 205, 206, 437 569 30 408 455 407 66 711, 713, 717 449 160, 164 Great Northern R. B. Co. 572, 670 Hodgson 709 London & Brighton By. Co. 487 London, Brighton & South Coast Ry. Co. 358 Luke 119,235 Matthews 214 Parker 617 Bichardson 436 121 399 206 18 501 457 450 98 111, 203 333 364 1 443 670 Co. 160 212, 683 57, 483 405, 509, 645 37 44 124 202, 433 75 84 225 183, 186, 424 258 483 Rowley Seymour Swift v. Tait v. Taylor v. Wardle v. Watt v. Wilson v. Wright Harrop v. Fisher Harry v. Wall Harsant v. Busk , Hart r. Alexander v. Crowley v. Delaware Ins v. Denny v. Frame v. Leach v. Middleton v. Miles v. Minors v. Prendergast v. Proudfoot v. Stephen v. Stevens v. Winsor v. Wright Harter v. Morris Haitfield v. Boper Hartland v. Jukes Hartley v. Burkitt 407, 572 433 428 Cook 701 Cummings 560 Harman 208,209,210,211,213 Harriman 562, 563 Herring 543, 549 v. Hodgson 230 v. Mare 324 v. Moxham 614 v. Ponsonby 243 v. Shemweil v. Wharton Hartman v. Keystone Ins. Hartnell v. Maitland Hartness v. Thompson Co. 302 406 173, 174 537 407 TABLE OF CASES XXXV Hartshorne v. South Heading 580 v. Wilson 430 Harvard College v. Stearns 580 Harvey v. Brydges 673, 700, 702, 718, 721 v. French 542 v. Gratham 458 v. Johnson 205 v. Kay 443 v. Pocock . 510,511 v. Keynolds 641 v. Troupe 79 v. Towers 341, 345 ilarwood v. Benton 626 v. Great Northern Railway 585, 678 Haseldine v. Grove 674 Haseler v. Lemoyne 505, 520 Haselham v. Young 140 Haskell v. Brown 122 v. Hunter 235 Haskins v. Hawkes 121 v. New York &c. R. R. Co. 568 Haslock v. Ferguson 526 Hassell v. Merchant Traders' Assur. Co. 159 Hassinger v. Diver 51 Hastelow v. Jackson 30 Hastie v. Coutourier 256 Hastings v. Fepper 101 v. Whitley 135 Hatch v.Hale 511 v. Hatch 29S v. Lane 659 v. Froctor 120 Hatton, ex parte, in re Fhcenix Life Assur. Co. 228 Hatton v. Kean 118, 501 v. Royle 66 Haughton v. Bayley 268 v. Empire Marine Ins. Co. 160 v. Ewbank 161 Haven v. Foster 32 Haverstick v. Sipe 480 Hawke v. Bacon 642 Hawkes i\ Borwick 78 v. Cotterill 56, 59 v. Horton 201 Hawkins v. Benton 64, 65 v. Compeigne 590 v. Coulthurst 173 v. Gardner 75 v. Great Western R. R. Co. 97 v. Harwood 58, 60 v. Kemp 250 v. Newman 245 Hawley v. Beverly 364 Hawthorn v. Hammond 531, 533 Hawthorne v. Newcastle &c. Railway Co. 673 Hav v. Avling 338, 395 " v. Cohoes Co. 604 v. Fisher 38, 73 v. Weakley 555 Haycraft v. Creasy 527 Haycroft v. Lake Shore & Mich. South- ern Ry. Co. 572 Hayden v. Attleborough 272 v. Sraithfield Manuf. Co. 569, 570 Haydon v. Goodnow 299, 331 v. Williams 433 Hayes v. Caulfield 333 v. Keeno 710 Hayes v. Waldron 625, 628 v. Western R. R. 668 Hayling v. Okey 701 Hayne v. Rhodes 61 Haynes v. Foster 345 v. Nice 445 v. Ritchley 538 v. Thom 339 Hays v. Blizzard 551, 552 v. Davidson 288 Hayselden v. Staff 279, 459 Hayward v. Fiott 59 v. Grant 658 v. Smith 330 Hazard v. Irwin 519 v. Mare 327, 365, 366 v. New England Marine Ins. Co. 162 Head v. Baldry 138, 278 v. Briscoe 528 Headley v. Shaw 251 Healey v. Jones 72 v. Storey 220 Heane v. Rogers 380 Heap v. Brooks 430 v. Livingstone 196, 271 Heard v. Bowers 203 Hearn v. London & South Western Ry. Co. 94, 95, 356 v. Waterhouse 526 Hearne v. Garton 360 v. London & North Western Ry. Co. 493 v. Stowell 539, 661 Heart v. Chipman 57 Heaston v. Cincinnati Railroad Co. 13 Heath v. Chilton 122 v. Derry Bank 379 v. Durrant 279 v. Elliott 497 v. Freeland 33 v. Millward 716,717 v. Smith 585 v. Unwin 587, 677, 681 Hebbert v. Thomas 717, 719 Hebhlewhite v. Leeds & Thirsk Ry. Co. 11 Hebden v. Hartjak 350 v. West 174, 415 Hedges v. Chapman 707 v. Tagg 559 Hedley v. Bainbridge 35 Heenan v. Evans 691, 692 Heiehew v. Hamilton 134 Heilbutt v. Hickson 258 Helene, The, 490 Hellawel v. Eastwood 504 Hellier v. Sillcox 182 Hellings v. Gregory 56 Helms y. Kearns 292 Helps v. Winterbottom 28 Helsham v. Blackwood 661, 663 Hemans v. Picciotto 309 Heming v. Trenery 369, 659 Hemming v. Gasson 541, 544, 658, 659 v. Hale 599, 692 v. Trenery 298 Hemp v. Garland 432 v. Livingstone 429 Hempstead v. Phoenix Gas Co. 6 1 2 Hemsworth v. Fowkes 555, 556 ■ TABLE OF CASES. 56 42 247 660 31,38,183 177, 179,419 427 394 246 ; i Marine 162 625 299, 736, 740 r wall I ish Bank urn Mayor of, hild I - ! in Morton 486 177 673. 738 31 370 20, 427, 446 273 121 215 120 468 209 470 339 408 586 501, 675 314 Mutual Ins. Co I 1'. Smith I 324 288 421 611 141 36 202, 208 77 • 163 536 233 324 663 545 184 498 331 246, 247 169, 470, 472 551 147 561 729, 731 524 502 49 668 627 636 440 162 73 552, 554 501 237 228, 276 603 548, 216 . 182, 183, 424 53 572 B 493 ff. 79 879 477 606, 676 Ilidson v. Barclay Iliern v. Carren Higgen's case Higginbotham v. State Higgins v. Dixon v. Ede v. Hopkins v. Nicholls v. Pitts v. Thomas v. Watervliet T. & R. R. Co. v. Watson Hi^ons v. Burton Higham v. Rabbett Hilbourn v. Fogg Hill v. Allen v. Balls v. Barnes v. Cowdery v. Curtis v. Featherstonehaugh v. Foley v. Fox v. Hobart i'. Kendall v. Kitchin i?. Manchester So Company V. Allies v. Millburn v. Mills v. Montague v. Morey v. Mount v. Packard v. Palm v. Rewee v. Salt v. Sanders v. Secretan v. Sidney v. Southwick v. Spear v. Sydney v. Walker v. White v. Wright Ililliard v. Richardson Hill Manuf. Co. v. Boston & Lowell R. R.Co. 100,101,102 Hills v. Barnes 331 v. Hay man 22 v. Laming 218, 443 v. London Assurance Co. 163 v. London Gaslight Co. 588, 678 ; 680 i'. Maynard ' 446 v. Street 509 Hilton r. Eckersley 134, 404 v. Granville, Lord, 564, 593, 606, 644 v. Swann 727 Binchcliffe r. Kinnoul, Lord, 632 Hiiiclnnaii '•. Richie 498 llim kley v. Arey 445 Einde >\ Gray 26, 135 Hindle v. Pollett iqo, 191 Hindley v. Westmeath, Marquis of, ' 404 llinman v. Hapgood 51 Hinton v. Acraman 67, 310, 311, 454 v. Dibbins 356 v. Dibden 95 v. Duff 333 364 723 568 332 520 738 180 282, 304 256 331 26 121 304 70 395 251 434 39 286 661 264 19 393 573 219 151 551, 668 29 90 185 158 56 344 402 305, 306 380 270, 440 688 495, 573 TABLE OF CASES. XXXV11 Flinton v. Heather 550 Hipkins v. Birmingham & Staffordshire Gaslight Co. 584 Hirsch v. Coates 302 v. Imthurn 309 Hirschfield v. Smith 330, 336 Hirst v. Horn 193, 194 v. Tolson 50 Hiscocks v. Jones 650 Hitchcock v. Coker 134, 135, 136, 204 v. Humfrey 73, 138, 398 v. Hunt 344 v. "Watford 21 Hitching v. Groom 266 Hitchins v. Hollingworth 2 Hitchman v. Waltman 593 v. Walton 536 Hoadley v. Maclain 265 Hoag v. McGinnis 203 Hoagland v. Moore 458 Hoare v. Cazenove 87 v. Lee 505 v. Parker 595 v. Rennie 238 v. Silverlock 540, 544, 661 Hobbs v. Branscombe 703 Hobson v. Cowley 209, 213, 459 v. Thelluson 597, 676, 691, 693 v. "Wadsworth 4 v. "Watson 56, 57 Hoby v. Built 55, 56, 61 v. Ruell 121, 383 Hochster v. De la Tour 211, 213, 458 Hocker v. Jamieson 331 Hockley v. Sutton 330 Hodgdon v. White 387 Hodges v. Chapman 704 v. Drakeford 181 v. Gray 217 v. Hall 137 v. Hodges 580 v. King 203 v. Lichfield, Earl of, 253, 254 v. Paterson 599, 690, 692 t\ Pingree 127 v. Welsh 500 Hodgkinson v. Emior 626, 628 v. Wyatt 88 Hodgman v. West Midland Railway Co. 96, 487, 488 Hodgson v. Johnson 130, 155 v. Scarlett 660 v. Sidney 52,319 Hodsdon v. "Wilkins 151 Hodsoll v. Baxter 177 v. Stallebrass 561, 563 v. Mee 1 v. Observer Life Assurance Society 174, 175 v. Pennell 1, 19 v. Temple 402 v. Wightman 321 Hoe v. Sanborn 256, 257 Hoffuer v. Wenrich 331 Hofnagle v. New York C. & H. R. R. R. Co. 569 Hogan v. Cregan 559 v. Sharpe 669 Hogarth v. Jackson 518 v. Penny 684 Hogg v. Graham 383 v. Skeen 333 v. "Ward 702 Hoggins v. Gordon 51 Hon ins v. Plympton 256 Hoitt v. Holcomb 392, 520 Holbrook v. Burt 519 v. Utica &c. R. R. Co. 564 v. Wight 46 Holcroft v. Barber 212 v. Hoggins 544 Holden v. Ballantyne 269, 472 v. Liverpool Gas Co. 570, 577 v. Raphael 650 Holder v. Soulby 533 Holderness v. Collinson 730 Holding v. Piggott 189, 712 Holdsworth v. Barsham 66 v. Hunter 85 v. Wise 163, 166 Hole v. Barlow 584, 676 v. Sittingbonrne &c. Railway Co. 573 Holford v. Bailey 130, 517, 652 v. Dunnett 5, 188 v. Hankinson 641, 737 v. Hatch 196,429 v. Pritchard 184 Holker v. Parker 59, 484 Holland v. Bird 506, 511 v. Lea 139, 399 v. Tealdi l Holliday v. Bohn 22 v. Morgan 260 v. St. Leonard's, Shoreditch 495, 573, 577 Hoi Her v. Eyre 373, 374 Hollingsworth v. Brodrick 160, 167,411, 412 v. Dow 729 Hollis t\ Marshall 245 v. Richardson 221 Hollister v. Newton 493 Holloway v. Griffith 205 v. Turner 612 Holly v. Boston Gaslight Co. 572 Holinan v. Johnson 402 v. King 57 v. Langtree 457 v. Townsend 502 v. Whiting 80 Holmer v. Catesby 663 Holmes v. Bagge 701 v. Clarke 518, 569 v. Goring 741, 742 v. Jacques 330 v. Kerrison 222 v. Kidd 340 v. Knight 151 v. London & North "Western Ry. Co. 587 v. Mackrell 433 v. Martin 135 v. Newland 667, 720 v. Onion 211 v. Peck 483 v. Penney 56 v. Seely 741 v. Sparkes 125 v. Tutton 303 v. Wakefield 502 v. "Weed 151 .VWV111 TABLE OF CASES. 534 Bi iling Spring Bleaching 625, 028 374 V, 1 397 !•. Mien 339 ■us 659 205, 437 :un 614 . Green 334 Fish 433 i aunton 542, 545 Wallis 331 v. V 289 89 ,pe 432 Milner 237 663 Honiba B 681 Illinois Central R. R. Co. 568 . & New Haven U.K. 100, 566 Kendall 189, 190 206 - .ill 260 645, 686, 688 . Bussell 177 ;tl Death Insurance 17G Bristol &c. Co. 452 I icago &c. R. R. Co. 94 ark 198 r. 1 598 Stephens 434, 444 . Williams 221 mer 26, 187 258 . Kevs 687 Meek " 314 613, 704 D iggett 418 incis 418,422,423 i'- ' >>k 254 Bopkins 231 1 • •••11 79, 80 150, 294 tl'v 45 ir of, 245 nqui ray 256 363 115 nit li 56 lith 633 57 593 '"i'n 539 196, 390,429 istralian &c. Life As- ( '"- 171,418 98, 118 ' 341 ■"> I 7 674 250, 27,1. 27,2 >rt IDs 103, 236 "■ '"i 446 i 382 390 429 559 130 Horsfall v. Mather 189, 655 v. Matthewman 271 v. Thomas 344, 393, 518 Hortley v. Wharton 409 Horton v. Buffington 402, 461 v. M'Murtry 438 v. Riley 29 v. Saver 309 Ilosack v. Rogers 455 Ilosea v. McCrory 99 Hosmer v. Warner 450, 682 1 1 1 »t etter v. Vowinkle 520, 607 Hostler v. Hays 380 Hotten v. Arthur 500 Hough v. Birge 183 v. May 444 Houghton v. Carpenter 652 v. Hagar 32 v. Koenig 320, 328 v. Manuf. Mut. Ins. Co. 170, 414 v. Matthews 42, 478 Houlden v. Smith 534 Houlder v. Soulby 184,550 Houlditch v. Cauty 343 v. Donegall 177, 419, 420 Hounsell v. Smyth 517, 573 Hoimsfield v. Drury 668 Houriett v. Morris 297 Eousee v. Hammond 628 House Tile Company v. Nielson 681 Hover v. Barkhoof 572 Hovey v. Page • 205 How v. Kennett 181, 183,* 189 v- Scarrott 504 v. Strode 497 Howard v. Doolittle 183 v. Emerson 257 v. Harris 119 v. Mitchell 380 v. Newton 612 v. Oakes 225, 272 v. Seward 257 v. Shaw 182 v. Shepherd 109 v. Woodward 204 Howarth v. Tollernache 725 Howden v. Haigh 364, 366 v. Standish 649, 691 Howe v. Newmarch 502, 568 Howell v. Jackson 700, 701 v. Jones 140, 456 v. M'Coy 628 v. Thomas 610 Howen v. Carr 19 Howes v. Austin 363 v. Ball 733 v. Lock 396 ETowkins v. Bennett 47 Howland v. Howland 125 v. Vincent Di7, 573, 604 Bowlett v. Tarte 380 Eowton v. Frearson 741 742 Iloxie v. Pacific Mut. Ins. Co. 411 Hoyle v. Coupe Hoyt v. Holly v. Hudson 642 ; 722 134 626 v. N. Y. Life Ins. Co. 174 Hubbard v. Belden 209 v. Chappel v. Harnden Express Co. 13 101 TABLE OF CASES. XXXIX Hubbard v. Knous 449 Hunt v. Silk 30 v. Town 480 v. Swaine 131 Hubbart v. Phillips 483 v. Wadleigh 80 Hubbersty v. Manchester &c. Ry. Co. 226 Hunter v. Baxter 387 v. Ward 109 v. Emmanuel 418 Hubgh v. New Orleans & C. R. R. 492 v. Fry 111 Huckle v. Reynolds 538 v. Gibbons 372, 375 432, 667 Huckman v. Fernie 174 415, 417 v. Hunt 29 Huckvale v. Kendal 18 v. Hutchinson 234 Huddle-ton v. Lowell Machine Shop 569 p. Liddell 263 Hudson v. Baxendale 107,488 v. Neck 16, 273 v. Clementson 111, 113 v. Nockold 435 v. Ede 111 v. Potts 162 v. F^awcett 31 v. Randall 526 17. Roberts 562, 563 v. Waldron 209 v. Slade 698 v. Welsh 39 v. Tenney 32* v. Wilson 339 Huff t?. McDonald 31 Hunting v. Sheldrake 144 Huffer v. Allen 553, 710 Huntingdon v. Hall 256 Huggett v. Montgomery 600 Huntington v. American Bank 449 Huggins v. Weyday 674, 675 Huntley 17. Russell 591, 655 Hughes v. Buckland 674, 675 v. Sanderson 39 v. Done 468 v. Simson 614 v. Graeme 45, 46, 478, 520 17. Ward 659 v. Great Western Ry. Co. 488 Hurrell v. Ellis 485, 614 v. Humphreys 49, 50, 300, 403 Hurst v. Great Western Ry. Co. 491 v. M'Fie 583 v. Hurst 187, 192 203, 204 v. Morley 317 17. Jennings 88 v. Mung 580 v. Litchfield 171 v. Parker 253 v. Usborne 110, 361, 362 v. Poele 330 Husband i>. Davis 351, 445 v. Quentin 575 Hussey v. Field 517 v. Rees 542, 544 Huston v. Mitchell 59 v. Thorpe 33 Hutchins v. Chambers 5 16, 510 Hulett v. Swift 532 17. Gilman 31 Hull v. Bollard 680, 682 v. Hutchins 498 v. Fuller • 70 17. Nichols 399 v. Renfro 488 17. Olcott 348 Hulle v. Heightman 208, 264 17. State Bank 120 Hulme v. Muggleston 467 17. Whitaker 506 Humberstone v. Dubois 194, 686 Hutchinson 17. Bell 526 Humble v. Hunter 110 v. Copestake 480 v. Langston 152, 228 17. Gillespie 177 v. Mitchell 246 17. Guion 360, 490 Hume v. Peploe 470 17. Sidney 463 Humphreys v. Comline 258 17. Sturgess 468 v. Harvey 306 v. Wright 158 v. Jenkinson 47 17. Yorkshire &c. Railway v. Jones 202, 433 Co. 568, 669 b. Magee 30 17. Yorkshire & North Brit- v. Miller 547 ish Railway C 0. 516 v. Pratt 524 Huttman v. Boulnois 207, 209, 210 v. Waldegrave, Earl of, 19 Hutton 17. Eyre 363 Humphries v. Bicknell 115 v. Turk 475 v. Brogden 563, 604, 605 v. Ward 31 v. Parker 551 17. Warren 189, 201, 425, 428 Hunneman v. Grafton 234 Hutts 17. Giles 227 Hunt v. Adams 298, 331 Huxley v. Bell 349 v. Burnet 206 Hyam, ex parte, in re Mexican & South v. The Cleveland 101 American Co. 228 v. Gray 299, 331 Hyams 17. Webster 573, 581 v. Hibbs 246 Hyatt 17. Adams 492 v. Hooper 596 692, 710 17. Boyle 259 v. Massey 409 v- Griffiths 189 v. Moore 519 Hybart 17. Parker 216, 230 v. Nevers 32 Hyde v. Graham 372, 375 v. Parker 667 17. Jamaica 503 v. Peake 604, 605 17. Johnson 526 v. Robins 724 17. Trent &e. Company 107 v. Sanders 30 17. Watts 366, 457 si ton The, TABLE OF CASES. 328 118 i Salle 156 183 Wassa of Nicolaistadt 602 on ■ ;ue well .win al K. R. 241 31 322 322 670 v. Bannon 515 v. Coi)eland 100, 493, 566 v. Coy 100, 101 aukenberg 1 00, 102 569 101 571 583 3 31, 32 ■22{) V. Jewell <-. Johnson 100 Middlesworth • v. Wilkes . vett Ini: .'.it Sue. Co. r. Broadbent a. London Gas Co. 372, 432, 667 692, 725 rmaur v. Dames 569, 574, 582 .;. R, Co. v. Love 569 Rutherford 575 orris 323, Nanny 282, Haven Nichollfl Orchard Ml ( (wen Parchard ■me .1 Ins 'in 523 26 197 177 346 587 .219 151 546 688 304 ' 503 675 29, 151 531 448, Co. i. R irs Smith Ntii'M 1 470 595 533 730 737 415 59 282 304 179, 184, 214 641, 684 124 387 497, G41 79 364, 367 189, 427 151 - (,272,313 ;, 665 346 124, L32 480 730, 732 302 Jones v. Thurloe v. Tif ton v. Williams 287, 353, 405, 483, 677, 710, v. "Wylie v. Yates Jones Manuf. Co. v. Manuf . M. Ins. Co. Jonk v. Pinsacke Jordan v. Dayton v. Moore 585, Jordin v. Crump 516, 583, Josephs, in re, ex parte Spyer Josling v. Irvine 46, 235, 240, v. Kingsford Josselyn v. McAllister Jourdaine v. Johnson 449, Joyce v. Capel v. Cassell v. Hayman v. Marine Ins. Co. 170, Joyler v. Wilder Jovner v. School District in Egremont Jubb v. Ellis Judah v. McNamee Judge v. Morgan Judson v. Etheridge v. Western R. Jupe v. Pratt Jury v. Barker R. Co. 440, 729, K. Kansas &c. Co. v. Reynolds Karr v. Parks Kauffman v. Griesemer Kavanasrh v. Gudge Kay 658, v. De Pienne v. Dutton r. Marshall v. Wheeler Kaye v. Brett v. Waghorn Kean v. Dufresne Keane v. White Kearney v. King Kearns v. Durell Kearon v. Pearson Kearslake v. Morgan Keavsley v. Cole Keats v. Huro Kedgell v. Moor Keeble r. Payne Kecgan v. Western R. R. Co. Keen r. Coleman v. Priest Keenan v. Brown v. Cavenaugh Keene v. Beard v. Mould Keener v. Harrod Keesling v. McCall Keightly v. Birch Keir v. Leeman Keithley i;. Watson Kell v. Anderson v. Nainby Kelley v. Biley v. Thompson Kellogg v. Denslow 533 182 610, 715 613 393 170, 414 169 49 678 648 323 260 257 551 450 574 670 621 414 585 370 456 49 553 730 102 679 221 100, 101 572 625, 626 719, 721, 722 149, 368 33 585 102, 489 444 289 348 6 85, 86 339 111 348 398 480 593 262, 461 569 528 510 458 562 116, 363 317 45 540 508 404 268 98, 112, 118 216 205, 206 600 259 TABLE OF CASES. xliii Kellogg v. Larkin v. Paine v. Payne v. Richards Kelly v. Curzon v. Flint v. Garrett v. Hendrie v. Morray v. Morris v. New York w. Partington v. Sherlock v. Solari v. Tinling v. Villebois v. Wade Kelner v. Baxter Kelsall v. Marshall Kelsey v. Berry v. Winter Kemble v. Bowne v. Far r en v. Mills Kemp v. Burt v. Fin den v. King v. Neville v. Potter Kempe v. Gibbon Kempsou, Ex parte Kendal v. Wilkinson Kendall v. King v. May v. Weaver v. Webster Kendillon v. Maltby Kendrick v. Lomas Kenlyside v. Thornton Kennard v. Burton v. Knott Kennedy v. M'Faden v. Murdick 134 36, 495 573 289, 445 34 448 463 571 52, 313 500, 643 495 539, 547, 660, 661 661 29, 338 661, 664 330 561 295, 452 419 532 724 160 203 79, 278 58, 61 29 555 534 318 134, 435, 666 324 535 10 436 269 47 548 86, 348 536 567, 571 347 215 341 v. Panama &c. Co. 393, 452, 458 v. Shea 559 Kennett v. Westminster Improvement Commissioners 302 Kenningham v. Allison 37, 444 Kennon v. M'Rea 79 Kenny v. May 509 Kenrick v. Horner 669 v. Taylor 590 Kent v. Dunham 121, 125 v. Great Western Ry. Co. 675, 676 v. Manuf. Ins. Co. " 160 v. Shuckard 532 v. Somervell 124 v. Warner 79 Kenyon r. Wakes 37 Kepp v. Wiggett 88, 352 Kerby v. Harding 507 Kern v. Towsley 538 Kerr v. Forgue 572 v. Jeston 18 v. Merchants' Exchange Co. 186 Kerry v. Baxter 353 Kervvhacker v. Cleveland &c. R. R, Co. 570 Kessler v. New York Central R. R. Co. 100 Kettell v. Alliance Ins. Co. 163 Kettle v. Harvey 264 Keyes v. Elkins Keyse v. Powell Key worth v. Hill Kidd v. Walker Kiddell v. Burnard Kidder v. Blake v. Hunt v. Parkhurst Kidgell v. Moore Kidson v. Barclay v. Turner 323, 324, 456 719 528 448, 450 260 131 30 551, 552, 661 594, 620, 689 323 319 Kidston v. Empire Marine Ins. Co. 164 Kieran v. Sanders 724 Kill v. Hollister 309 Kilner v. Bailey 37, 446, 464 F : lshaw v. Jukes 215 ivilwick v. Maidman 470 Kimball, In re 317 v. Cocheco R. R. 741 v. Comstock 526 v. Cunningham 259 Kimberly v. Patchin 234 Kincaid 0. Eaton 619 Kine v. Evershed 674 King's case 228 King ?;. Accumulative Life Fund &c. Assurance Co. 159 v. Bellord 407 v. Boston & Worcester R. R. 568, 570 v. Bowen 308 v. Buckman 249 v. Burrell 246 v. ( 'hace 421 v. Eagle Mills 518 v. Frazer 184 v. Gillett 437, 438, 459 v. Green 402, 461 v. Greenhill 91, 214 v. Hoare 273, 421, 423, 456 v. Indian Orchard Canal Co. 730 v. Jones 249 v. Randall 324 v. Sewell 660 v. Share 246 v. Shepherd 101 v. Smith 445 v. Upton 132 v. Watts 543 v. Williamson 580 v. Winauts 402 v. Woodbridge 103 Kingdon v. Cox 242, 461 v. Nottle 199,249 Kingham v. Robins 448 Kingman v. Kelsie 45 Kingsbury v. Collins 702 v. Taylor 257 Kingsford v. Dutton 88 v. Merry 520 v. Swinford 375 Kingston's, Duchess of, case 379, 380, 421 Kington v. Kington 444 Kinnear v. Keane 25 Kinnersley v. Knott 4, 74 Kinning v. Buchanan 710 Kinnock v. Neville 742 Kintrea v. Preston 253 Kirbey v. Dendy 709 Kirby v. Boylston 577 v. Siggers 273 162, 29, 93, 93, 395, xliv Kirby r. Simpson Kirk ft Blurton I nion aley nk of England ' iansett .van : lan v. Sk .hili:in i -.in Jit K S paxd Iby i I :i: i ford v. !i ury :iliell ■ ambers u. Clements v. Faith I itch .ibbs tes v. Hunt v. Pocock I '. S. & P. R I i-ese Turquand v. Wbore Knill v. Stockdale rtia Johnson Hammond . Ward White i irk i in rn Express Co ck ivcr rn Ry. Co. uch L. TABLE OF CASES. Co. 538, 539 674, 675 75 265 274 623 184 400, 473 349 434 3 124 139 562 120 215 168, 169 659 4' 6 125 31 696 151 206 517 246 395, 396 331 182 166 396, 404 543, 547 151 364 71,72 102 32 727 738 75 509 3,4 147 100 562 31 632 372 259, 260 162 183, 186 177 702 , 659, 660 402 107 257 94 458 492 80 314 Ladd v. Arnaboldi v. Lynn ' 25 1 mbes 466 v. V 52, 621 y w— a. 551 ton 208 v. Thomas Lade v. Shepherd Lafayette &c. R. R. Co. v. Hoffman Lafone v. Smith. Laidler v. Elliott Laing v. Fidgeon Laird v. Davis v. Eichold v. Pirn 251, Lake v. King v. Milliken v. Smith Lakeman v. Pollard Lake Shore & Michigan Southern &c R. R. Co. v. Perkins Lakin v. Ma.-sie v. Watson Lamb v. Burnett v. Camden &c. R. R. Co. v. Micklethwaite Lambert v. Hodgson v. Xorris v. Taylor Lamburn v. Cruden Lamond v. Davale 311 401 645, 673 616, /17 572 540 58 261 668 532 252, 473 660, 661 567, 572 194 209 Lamont v. Crook v. Southall Lamphier v. Phipos Lamprell v. Billericay Union Lancasliire Wagon Co. v Lancaster v. Walsh Land v. North Landman v. Entwistle Landrum v. Trowbridge Lane v. Bagshaw v. Bennett. v. Brimliart v. Chapman v. Cotton v. Dixon v. Glcnny v. Hill v. Ironmonger .Maine Mut. Fire Ins. Co Mullins Nixon Oldham Ridley Shackford La Nenville v. Nourse Lanfranchi v. Mackenzie Lang v. Comber Langdon v. Doud v. Hughes v. Landon v. Paul v. Potter v. Wilson Lange v. Werk Langer's case ger v. Felton Langford v. Woods Langley v. Haynes _ ni> .-id v. Holliday Langridge v. Levy Lan^stou v. M'Kinnie 488 120 3 669 102, 107 37 672 189 347, 391 208 ■2>2 633, 634 675 483, 607 265 Fitzhugh 594, 595,619, 698, 725 233 v. V. V. V. V. V. Langton v. Higgins 728 208 79 525 435 137, 140 395, 650 126 616, 617 305 33 147 159 346 412 344 25 30 256, 262 480 271 379 137 445 298 59 60 134, 135 394 380 287, 579, 580, 606 287 524 257 519, 524, 652 380 620 TABLE OF CASES. Xh Langton v. Lazarus 338 Lanier v. Trigg 470 Laning v. New York C. R. R. Co. 569 Lansing v. Carpenter 540 v. Montgomery 380 Lapham v. Atlas Ins. Co. 412 Lara v. General Apothecaries Co. 281 Larchin v. Buckle 15 Larue v. Farren Hotel Co. 574 Lary v. Young 79 Lasala v. Holbrook 604 Latch v. Rumner Ry. Co. 566 Latham v. Lafone 323 Lattimore v. Davis 626 v. Garrard 117 Laugher v. Pointer 567, 574 Laughlin v. Chicago &c. R. R. Co. 102 Laughton v. Taylor 273 Lauman v. Young 309 Laumier v. Francis 626 Lausatt v. Lippencott 42 Laverone v. Mangianti 561, 562 Laveroni v. Drury 102, 162, 489 Lavery v. Turley 290 Laville v. Biguenaud 552 Law v. Blackburrow 66 v. Dodd 675 v. Harwood 666 v. London Indisputable Life Policy Co. 174,415 v. Parnell 333 v. Thompson 36, 462 v. Wilkins 407 Lawes v. Eastmore 444 v. Purser 218, 443 v. Shaw 89, 90 Lawler v. Androscoggin R. R. Co. 568, 569 v. Baring Boom Co. 564 r. Earle 659 Lawrence v. Aberdein 162 v. Chase 394 v. Clarke 215, 216, 332 v. Cooke 205, 206 v. Gullifer 208 v. Kidder 134, 135 v. Knowles 54, 460 v. Minturn 94 v. Obee 480 v. Potts 56 v. The State 619 v. Walmsley 374, 376, 451 v. Wright 120 Laws v. Botts 9 v. Rand 115, 362 v. Shaw 21 Lawson's case 270 Lawson v. Bank of Loudon 608 v. State 611 Lawton v. Elmore 393 Lay v. Lawson 665 Laycock v. Tuffnell 686 Layng v. Stewart 45 Laythoarp v. Bryant 251, 252 Lay ton v. Hurry 647 Lazarus v. Commonwealth Ins. Co. 158, 159 330, 336, 337, 342 420 333 121 368 Leader v. Purday Leaf v. Robson v. Topham Leake v. Loveday v. Young Leame v. Bray Lear v. Caldecott v. Edmunds v. Yates Learmouth v. Grandine Learoyd v. Robinson 643 341 587, 681 724 364 611, 613 511 425 98 290, 292 466 v. Cowie Lazier v. Westcott Leach v. Buchanan v. Pillsbury Leader v. Barry Leather Cloth Co. v. American Cloth Co. 520, 607, 608 v. Lorsont 134, 135 Leatherdale v. Sweepstone 470 Leavitt v. Fletcher 183, 186 Lebanon v. Griffin 13 Lebel v. Tucker 85 Le Bret v. Papillon 297 Lechmere v. Fletcher 202, 456 Lc Conteur v. L. & S. W. Ry. Co. 100, 494 Ledsam v. Russell 586 Ledwich v. Catchpole 703 Lee v. Alexander 298 v. Ayrton 58, 60 v. Biillen 464, 467 v. Chase 121 v. Everest 263 v. Hodges 558 v. Jones 393, 399 v. Lister 463 v. Me r ret 29 v. Oppenheimer 288, 445 v. Riley 516 v. Risdon 130 v. Sangster 8, 312 v. Shore 262, 461 v. Simpson 118 v. Smith 179, 504 v. Stevenson 631 v. Wilmot 434 Leech v. Clabburrt 653 Leeds v. Burrows 117 v. Cook 437 Lees v. Hoffstadt 342 v. Smith 159, 407 v. Whitcombe 211 Legg v. Cheesbrough 323, 325 v. Evans 619, 724, 732 Legge v. Boyd 288 v. Thorpe 79 v. Tucker 27, 58, 67, 126, 355 Legh v. Hewett 190 Leicester v. Rose 364 v. Walter 540 Leideman v. Schultz 111 Leidy v. Messinger 215 Leigh v. Baker 71, 72 v. Bertles 311 v. Hinde 136 v. Lillie 191, 192, 203, 204 v. Paterson 235 v. Pendlebury 322, 323 Leighton v. Brown 90 v. Twombly 263 v. Wales ' 204, 216 Lempriere v. Humphrey 609, 718 Lennard v. Robinson 112 Leonard v. Gary 7&, 80 v. S heard 325 xlvi 3] idel <\\u ■ rie ewistoo Wilson Winter I per - .t'toe I Shaw Irannan Bail lie Hale v. Herbert .-. Kram > . 1 i • Littlefield '■ L v. McKee i. Marlin v. .Munis v. Nicholson I wen Parker ' .IV II ■ v. Ponsford : illy iel nith v. V. ford ■ i•■ Bnshby romperta ■let iMiston rly 538, Lokii sail Lumby v. Allday 539, 546, 24, 482, Land ugh 76, 79 Loan . I North Western Rail- 56C 576 Lnnt on & North Western Rail- 160 441 258 212 249 512 542 605 548 560 567 ,80 \\a\ 566, 576 s 455 Russell 439 ; Winnisiminet Co. 626 I.Utt: 480 LlINt 600, 603 Robson 186 ; !-oll 251 • V. 1 -'!«: 372, 373, 376, 457 2 _ins 139, 277, 397, 398 Barnard 526, 652 WU 421 . Ellery 272 . 1 rniti >1 Stair- Bank 348 Mayor >.<:c. o f, 495 Henley 572, 5S0 Lynch v. < 'ommonwealth 56 <-. Marden 562 N'urdin 578, 670 nith 572 Lyne o. Wyatt 324 ! ield 26, 396 Sitt<.n 4, 122 Lynn v. Brace 45S v. Moody 506 tanable 30 v. Bertram 30 . 1 »illimore 481 v. Holt 347 v. Mills 110 Reid 380, 381, 426 nith 531 i omkies 509, 510, 647 v. Wall 74 Weldon 509 Lyons v. Barrow 383 Martin 648 Merrick 516, 562 Barrow 120 Lyth v. Ault 292 Lyttli 387 M. -on beppard Matheny M'A r. Bassctt ' happle 157 434 265 336 113, 114 520 111 trie Telegraph Co. 247,494 . Whitlock 107 M A:'., . ^ears 101 McAvoy v. Medina McBride v. Lynd Mc( lahill v. Kipp McCall v. Brock McCance v. London & North Western Railway Co. 103, 358, 360, 449, McCarren v. McNulty McCarthy v. Wolfe v. Young 485, 574, McCaskill v. Elliott M'Clallen v. A .lain:; Macclesfield, Mayor of, v. Chapman v. Pedley M'Clonghan v. Clayton McClung v. Kelly McClurg's Appeal McColl v. Oliver M'Comhie v. Daviea M'Comhs v. M'Kennan McConnell v. Hector M'Connico v. Curzen McCormick v. Melton 418, M'Coy v. Artcher McCrea v. Holdsworth 500, McCready v. Cann Mc< 'reary v. Taggart M'Creight v. Stevens M'Curday v. Driscoll McCurdy v. Rogers McDaniels v. Lajdiam v. Robinson McDonald v. Edgerton v. Jopling v. Lindall v. Snelling v. Western R. R. Co Macdonald v. Lon<. r bottora v. Mortlock McDougall v. Claridge McDowall v. Lyster Mace v. Philcox Macfarlane v. Gianocopulo M'Gaw v. Ocean Ins. Co. McGlynn v. Brodie McGowan v. Smith Macgregor v. Rhodes 333, 380, .McGregor i\ Graves v. Gregory 546, 662, v. Horsfall McGrew v. Stone 564, M'Guire v. Grant 604, Machell r. Ellis McHenry v. Duffield Machin v. London & South Western Railway Co. McHose v. Fulmer McDvaine v. Wilkins M'Intvre v. Bowne v. Miller 22,445,475, v. Parks Mclver v. Henderson Mackay v. Ford v. Mackreth v. Wood 19, McKee v. Manice Mackenzie v. Cox v. Culbreath v. Neale 427, 645, McKenzies v. Hancock McKinby v. Rob 532, 532, 257, 659, 619 562 561 101 488 264 47 583 562 49 558 55S 704 257 135 216 730 237 297 42 419 256 501 339 309 394 699 45 288 533 533 462 741 520 102 237 598 660 330 617 413 160 569 315 381 33 663 160 567 605 590 45 357 235 32 94 683 402 163 660. 199 329 30 485 288 687 260 663 TABLE OF CASES. xlix McKinnell v. Robinson McKinney v. Neil v. Whiting Mackinnon v. Penson M'Kinstry v. Pearsall Mackintosh v. Marshall vt Trotter Macklin v. Waterhouse McKnight v. Devlin v. Dunlop McKone v. Wood McKune v. Joynson McLaren v. Baxter McLaughlin v. Pryor Maclean v. Dunn v. Phillips M'Leod v. M'Ghee Maclellan v. Albee v. Howard 395 565 526 527 42 412 618 493 256, 344 32 562 244 322 567, 574, 613, 671 237 450 620 433 471 McMahon v. North Central Ry. Co. 572 McManus v. Cricket 567, 574 v. Finan 562 v. Lancashire & Yorkshire Railway Co. 96, 358 v. Leeds & Yorkshire Ry. Co. 357 McMillan v. M'Neill 319 v. Michigan Southern & Northern Indiana R. R. Co. 102 v. Solomon 186 McMullen v. Kelso 209 McNair v. O'Fallon 380 v. Schwartz 182 McNamara v. Fisher 149 Macnamara v. Hulse 681 Macnaught v. Dodson 235 v. Russell 325 McNeilage v. Hollo way 148 Macon &c. R. R. Co. v. Davis 570 M'Pherson v. Cheadell 49 v. Daniells 547, 548 McPhetres v. Halley 79 M'Queen v. Fulgham 542 Macrae v. Atlantic & N. Car. R. R. Co. 402 v. Clarke 599 Macrory v. Scott 137 McSwiney v. Royal Exchange Assur- ance Co. 159, 169 McTyer v. Steele 109 McVee v. Bidwell 565 Macy v. Mut. Mar. Ins. Co. 411 Madden v. McMullen 374 Maddera v. Smith 30 Mad River & Erie R. R. Co. v. Barber 569 Magdalena Steam Navigation Co. v. Martin 299, 300 Maggs v. Ellis 245 Maghee v. Camden & Amboy R. R. Co. 100 Magnay v. Burt 555, 595, 613 Magnus v. Buttermere 161, 162 Magor v. Chadwick 734 Magrath v. Hardy 380 Maguinay v. Saudek 559 Maguire v. Kincaird 418 Mahan v. Brown 480 Mahurin v. Harding 518, 521 Maignan v. New Orleans &c. R. R. Co. ' 107 vol. 11. d Maile v. Mann 244 Maillard v. Argyle, Duke of, 349 Mainprice v. Westley 63 Mainwaring v. Giles 590 v. Newman 443 Maitland v. Goldney 548 Major v. Chadwick 626 v. White 490, 639 Malachy v. Soper 543, 544, 548, 549 Maiden, Mayor of, v. Woolnett 652 Mallalieu v. Hodgson 364, 367 v. Lyon 147 Mallan v. May 134, 135, 136, 204 Mallett's Patent, In re 586 Malone v. Murphy 551 Maltass v. Siddle 79 Maltby v. Murrells 222 Manahan v. Noyes 30 Manby v. Cremonini 40 v. Scott 147 v. Witt 659, 660 Manchester &c. Railway Co. v. Wallis 517 Manders v. Williams 619, 620 Mandeville v. Welch 341 Mangam v. Brooklyn &c. R. R. Co. 572 Mangan v. Atherton 571, 578, 583 Manifold v. Pennington 497 Manley v. Field 558 v. St. Helen's Canal Co. 495, 516 Mann v. Blanchard 526 v. Forrester 157 v. Lent 344 v. Long 384 Mannall v. Fisher 518,652 Manning v. Eastern Counties Railway Co. 614 v. Irving 159, 163, 166 v. South Eastern Railway Co. 702 v. Wasdale 513, 624, 628, 631, 632, 637, 735 v. Wells 531, 532 Mant v. Smith 306, 307 Manton v. Bales 607 v. Parker 678 Mantz v. Goring 186 Manufacturers' Bank v. Hazard 379 Maples v. Pepper 317 v. Sidney 131, 132 Mara v. Quin 385 Marble v. Worcester 567 March v. Warwick 325 Marcon v. Bloxam 374, 378 M.ndall v. Thellusson 464 Mare v. Charles 74, 220 v. Underhill 394 Marfell v. South Wales Ry. Co. 517 Marfield v. Goodhue 295 Margaret, The, v. The Tuscar 601 Maria, The, 6 03 Mariners' Bank v. Abbott 374 Marion r. McRea 32 Marker v. Kenrick 179,188 Markham v. Brown 531 v. Russell 540 Marks, Re 324 v. Hamilton 171 v. Lahee 729, 730, 732, 733 Markswick's Patent, R> 586 Marples v. Hartley 302 Marriage v. Marriage 351 1 TABLE OF CASES. Marriott p. Stanley 583 Maraack p. Webber 5J len c. Moore 4 ' 3 sb p. Bulteel 308 v. Hutchinson 149 v. Jones 562 r. Keating 29 p.Laforesi 445 r. l'litnam 319 p, Robinson 158 Marshall r. Birkenhart 141 v. Broadhnrat 120, 122, 123 v. Emperor Life &c. 417 p. Gangler 298 p.Gray 518 v. Jackson 24 r. Mitchell 80 r. Button 148 p. Thomas 1 v. Trumbull 741 v. Ullswater Steam Nav. Co. 517 v. Whiteside 448, 450 v. Wilder 383 v. York, Newcastle &c. Ry Co. Marston r. Allen v. Bank of Mobile v. Bovnton v. Knight Martin v. Andrews v. Bell p. tiabb v. Gilham v. Gohle v. Great Indian &c. Ry. Co. v. Great Northern Ry. Co. v. Gribble v. Headon v. Hewson v. Ingersoll v. Kennedy v. Leicester Waterworks Co v. Payne 493 220, 333, 341 80 348 259 30, 263, 633, 634 125 481 188, 536 480 96, 493 492, 570, 576 324 480, 481 30, 395 79 v. Porter v. Reid v. Riddle v. Rightex v. Sitwell v. Smith Stillwell v. Timperley v. Upcher p. W illiams p. Winslow p. Wright Martindale v. Falkner Martinez p. Gerber Martyn o. clue p. Knowllys Martyr p. Bradley Marzetti p. Juuffroy p. Wflliamfl Mash p. Dcnham Mason v. Birkenhead Commissioners v. Bradley v. Chappell v. Ditclibourne v. Farnell 654 229 559 615 730 626 379 164 250, 251, 401 538 694 675 198, 202 79 138, 501 56 559, 560, 574 186, 196 536 536 3 70 652 675, 676 281, 298, 331 257, 519 393 199, 724, 728 635, Mason v. Harvey 171 v. Hill 625, 627 v. Jewett 455 v. Morgan 148 v. Newland 287, 647 v. Nicholls 177 v. Paynter 599 v. Thompson 532, 533 v. Waite 31 Massey v. Goodall 191 v. Goyder 605 v. Johnson 364 Massure v. Noble 380 Master v. Miller 298, 331 v. Temperley 577 Masterman v. Judson 633 Masters, Re 56, 307 v. Barretto 221, 222 v. Farris 505 v. Lowther 125 Mather v. Maidstone, Lord, 338, 341, 345 Mathew v. Blackmore 28, 214, 290, 369 v. Green 587 Mathews v. Biddulph 614 v. Harsell 619 v. Howard Ins. Co. 1 62 v. Marsland 71 v. Taylor 365, 366 Matlock v. Kingslake 251 Matson v. Booth 52 v. Cook 716 Matteson v. Curtis 206 v. Holt 259, 458 Matthew v. Biddulph 702 Matthews v. Bliss '393 v. Cribbett 206 v. Osborne 651 Mattock v. Livingston 339 Matts v. Hawkins 218 Maud v. Monmouthshire Canal Co. 287 v, Waterhouse 131 Maunder v. Collett - 18 v. Venn 558 Maunsell v. Ainsworth 634 Maverick v. Eighth Avenue R. R. 566 Mawson v. Blane 406 May v. Babcock 109 v. Breed 319 v. Brown 542, 546 v. Buckeye Mut. Ins. Co. 170, 414 v. Burdett 561, 562 v. Coffin 79 v. Princeton 570, 571, 575 v. Taylor 289 Mayall v. Boston & Maine R. R. 94 v. Higbey 530 Mayberry v. Mansfield 244 Maybury v. Mudie 270 Mayelston v. Palmerston 185 Mayer v. Foulkrod 59 v. Isaac 138, 398, 399 v . Jadis 75 v. Schleichter 538 Mayfield v. Wadsley 117 Mayhee v. Fisk 538, 539 Mayhew v. Boyce 568 v. Crickett 456 v. Herrick 620, 723 v. Suttle 617, 720 Maylam v. Norris 252 TABLE OF CASES. li Maynard v. Esher 480 p. Firemen's Fund Ins. Co. 502 p. Rhode 416 Mayor v. Hawarth 368 p. Sample 659 Mead v. Bunn 520 v. Davison 159 p. Small 80 Meadows v. Kirkman 587 Meany v. Head 231 Mears v. London & South Western Ry. Co. 594 Mechanics Bank p. Griswold 80 v. Merchants' Bank 477 Mechelen p. Wallace 138, 200 Medbury p. Watson 519, 526 Medfield v. Boston, Hartford & Erie R. R. Co. 487 Medlin v. Platte County 298 Medway Navigation Co. p. Earl of Rom- ney 617 Mee v. Tomlinson 294 Meech v. Smith 45 Meeke p. Oxlade 126 Meeker v. Jackson 332 Meeus v. Thellusson 176, 178 Megginson v. Harper 434 Mehlberg v. Fisher 79 Meier v. Penn. R. R. 566 Meigs v. Mut. Mar. Ins. Co. 165 Meldrum v. Snow 239 Mellan p. May 459 Melledge p. Boston Iron Co. 348 Mellersh v. Rippen 334 Melling v. Leak 712 Mellish p. Rawdon 77, 335 Mellor p. Baddeley 555, 556 p. Leather 231, 591, 592 Mellors v. Shaw 569, 570, 575, 579 Melville v. De Wolf 243, 244 Mendel, Ex parte 324 Mendez v. Bridges 650 Mendezabel p. Machado 78 Mennie p. Blake 591, 592, 683 Mercer p. Cheese 349, 350 p. Irving 92, 136, 203 p. Jones 620 p. Walmsley 559 p. Whall 213, 339, 438 Merceron p. Dowson 196 Merchant p. Franks 419 Merchants' Bank v. Spicer 1 1 5 Merchants' Bank of New York v. Spald- ing 402 Merchants' National Bank v. Bangs 234 Merchant Taylors v. Truscott 479, 482 Mercy p. Galot 443 Meredith p. Reed 561 Meriton v. Coombs 617 Merriam p. Cunningham 406 v. Field 257 p. Hartford & New Haven R. R. Co. 99 v. Wilkins 406 p. Wolcott 30 Merrick p. Bradley 260 p. Dawson 40 1 Merrifield v. Lombard 628 p. Worcester 625 628 Merrill v. Grinnell ' 493 Merrill p. Hampden 571 p. Mclntire 90 p. Parker 27 p. Peaslee 542 Merrimack Manuf. Co. p. Garner 607 Merritt v. Claghorn 53$ v. Old Colony &c. R. R. Co. 99 Merry p. Chapman 599, 650 p. Green 705, 707 Mersey Dock Harbour Board p. Gibbs 494, 502, 572 p. Penhallow 494, 572 Mersey Navigation v. Douglas 628 Mershon p. Hohensack 101 Merwin v. Butler 107 Messenger v. Clarke 146 Messent v. Reynolds 200 Messer v. Woodman 234 Messina p. Petrococchino 177 Messiter p. Rose 211 Metcalf p. Hess 532 p. London, Brighton & South Coast Ry. Co. 94, 356, 357, 487 Metcalfe p. Boote 368 p. Fowler 255 p. Hanson 317 p. Hetherington 495 p. Lumsdeu 619 Metropolitan Association &c. v. Patch 482, 594 Metropolitan Board of Works p. Vaux- hall Bridge Co. 10 Metropolitan Saloon Omnibus Co. p. Hawkins 502, 540, 546 Metzner p. Bolton 208, 209, 212 Meunie v. Blake 231 Mexican & South American Co. in re, ex parte Hyam 228 Meyer v. Everth 261, 519, 522 v. Hibsher 79 p. Walter 551 Meyers v. Baker 587 Meyers tein v. Barber 109 Meyrick v. Anderson 121 Michael p. Gay 132 p. Gillespy 163, 167, 412 Michael p. Myers 347 v. Tredwin 167,411 Michigan Central R. R. Co. p. Coleman 528, 571, 575 Michigan Southern R. R. Co. p. McDon- ough 99, 488 Micklin v. Williams 606 Middlebury v. Case 341 Middlebury College p. Chandler 242 Middleditch p. Ellis 216 Middlemore v. Goodall 148 Middlesex Bank v. Butman 42C Middlesex Co. p. Osgood 394 Middleton v. Bryan 89 p. Chambers 307 p. Woods 21 Midland Ry. Co. p. Bromley 101 Mierson v. Hope 107 Miles p. Boyden 124 p. Campbell 278 p. Cattle 493, 624 p. Harris 244 1,1 Milts 9. Miles c. Tope v. Vanhorn v. Williams rd v. Hughes Kebble Dawson TABLE OF CASES. 380 9 538 149 354, 355 619 337 Mill v. CommiBflioners of New Forest 496 udon v. Western Marine & Fire 160 Miller v. David 539, 540, 546 v. Eagle Life & H. Ins. Co. 174 684 v. ILickley 79 r. Holden 288 v. llcilman 380 r. Laubach 626 r. Marston 729 r. Miller 31 r. M\mi 302 v. Pariah 538 v. Reed 331 r. Kobe 51 r. Sims 406 r. Stewart 399 v. Titherington 167, 413 Milhrship v. Brookes 51 Mulligan v. Wedge 563 Milliken v. Brown 445 v. Thorndike 518 Millingen v. Picken 501, 643 Milhnan v. Pratt 549 Mills v. Barber 339, 345 v. Bayley 308 v. Brown 1,18 v. 1 olchester, May< jr of, 130 v. Collett 614 v. Goff 657 v. Michigan &c. R. R. Co. 107 r. Mills 498 v. Oddy 341 v. Shirley 729 r. Starr 298, 299 Millward v. Littlewood 205 Milne v. Leisler 520 p. Marwood 521 v. Wood 599 Miliicr v. Field 282 p. Hurt on 249 v. Milner 16 v. Milnea 528 v. Myera 721 Milnes r. Mi; 272 Mihaiu v. Mather 463 ■ lVrez 362 Milward v. Bibbert 159, 167, 412 Thatcher 534 Milwaukee &c. R. R. Co. v. Hunter 571 Miner v. Gilmooz 625 Sculthorpe 137 Mil • - Royal Society v. Magnay 371 lall v. I. G18 Oakea 187,196,198,363 Minturii v, I -'iTir-r 115 '' Main 30 Mines v. M< -Dnwell 348 sippi C l; I;, v. Kennedy 493 un Ins. Co. v. Glasgow 162 Mitchell o. Baring 86 v - Cragg 337 Mitchell v. Crassweller 574, 670 v. Gile 119 v. Jenkins 551, 668 v. New York Central &c. R. R. Co. 571 v. Ringgold 331 v. Rome R. R. Co. 341 v. Sawyer 288 v. Towneley 448 v. Wall 551 v. Western R. R. Co. 564 v. Williams 551 v. Zimmerman 519 Mitcheson v. Nicol HI Mitchinson v. Cross 551 Mixer v. Coburn 256, 258, 344 Moale v. Hollins 456 Mobile, The, 243 Mobley v. Ryan 336 Mockford v. Taylor 618, 623 Moens v. Thelluson 420 Moffatt v. Smith 183 Mohawk Bank v. Broderick 363 Moilliet v. Powell 73 Moller v. Young 97,98,118 Mollett v. Wackerbarth 299 Molloy v. Delves 74 Molton v. Camroux 369, 436 Mondel v. Steel 282, 465 Mondajl v. Smith 258 Monk v. Sharp 327, 328 Monkman v. Shepherdson 438, 440 Monks v. Dykes 700 Monmouthshire Canal Co. v. Harford 738, 742 p. Hill 616 Monroe v. Cooper 341 v. Douglas 420 Monson & Brimfield Manuf. Co. v. Puller 626 Montgomery v. Richardson 24 Montoya v. London Assur. Co. 162 Montpelier & Wells River &c. R. R. Co. v. Langdon 379 Montriou v. Jeffreys 58 Moodie v. Bannister 433, 434 Moody v. Aslat 3 v. McClelland 604 v. Pheasant 89 Moon v. Raphael 313, 620 Mooney v. Lloyd 49 v. Miller 520 Moor, Re 317, 321 v. Adam 263 v. Roberts 143 v. Wilson 45 Moore v. Appleton 151 v. Boswell 125, 600 v. Boulcott 306 v. Bushell 31 v. Butlin 446, 464 v. Campbell 241, 458 v. Clarke 501 v. Fitchburg R. R. Co. 502, 568 v. Maddock 339 v. Magan 713 v. Meagher 549 v. Metropolitan Sewage Manure Co. 11, 227, 463 v. Patten 32 v. Phillips 716, 725 TABLE OF CASES. liii Moore v. Plymouth, Earl of, v. Pyrke v. Rawson 181, 722 156, 537 480 v. Royce v. Sanborin 221 550 v. Shepherd v. Smith 666, 675 470 v. Webb 628, 734, 736 v. Weber 200 v. Wood 465 v. Woolsey 173,417 Moran v. Jones 133 v. Morissey Morant v. Chamberlain 36 698, 701, 743 v. Sign Moravia v. Hunter 726 318 Morel 1 v. Harvey Moreton v. Hardern 648 567, 574 Morewood v. Pollock 489 v. Wilkes 126 Morgan, ex parte, in re Woodhouse 322, 323, 324 Morgan v. Cox 564 v. Cubitt 148, 272 v. Curtis 590 v. Fallenstein 339 v. Hallen 48 v. Jones 215 v. Lewes 478 v. Marquis 728 v. Pebrer 279 v. Peet 79 v. Pike 214,215 v. Powell 615 v. Price 160,413 v. Ravey 355, 532, 533, 534 v. Ruddock 281 v. Seaward 678, 679, 680 v. Thome 14 v. Vale of Neath Ry. Co. 568, 569 v. Whitmore 220 Moriarti v. Brooks 612 Morley v. Attenborough 256, 259, 262 v. Culverwell 336 v. Inglis 463 v. M'Dermot 609 v. Morley 144 Morrell v. Burns 438 v. Harvey 685 v. Martin 685 v. Trenton Mut. Life & Fire Ins. Co. 174 Morris v. Bowman 341 v. Cleasby 46 v. Cox 49 V. Edgington 741 v. Hancock 18 v. Jones 37 v. Langdale 549, 549 v. Matthews 457 v. Norfolk 85, 149, 151 v. Nugent 562, 649 , v. Rhydydefed Collier Co. 184 Morrissey v. Wiggins Ferry Co. 570 Morrison v. Chadwick 183,426,427 v. Harmer 547, 663, 664 v. Marquardt 480 v. Muspratt 416 v. Salmon 608, 609 Morrison v. Trenchard 138 Morse v. Androscoggin R. R. Co. 730 v. Apperley 718 v. Brackett 259 458 v. Hutchins 317, 652 Mortimer v. McCallan 246 v. Moore 644 v. Preedy 184 v. South Wales Ry. Co. 228 Mortimore v. Wright 407 Morton v. Burn 131, 132 v. Copeland 501 v. Scull 519 v. Shoppee 611 Moseley v. Hanford 339 Moses v. Boston & Maine R. R. 99 v. Levy 398, 440 v. Mead 257, 258 j;. Ross 31 Mosher v. Southern Express Co. 101 Mosley v. Walker 558 Moss v. Bettis 99 v. Gallimore 182, 430, 507 v. Hall 347 v. Pacific R. R. 569 u.Smith 69,163,166,311,368 v. Sweet 27, 239 v. Townsend 533 Mostyn v. Bradley 536 v. Coles 484 v. Fabrigas 534 Mott v. Mott 134 Moule v. Brown 115, 116 Moulton v. Phillips 484 v. Robinson 189 v. Scruton 652 v. Trask 208, 458 v. Wendell 122 Mounsey v. Dawson 512 v. Ismay 644 v. Perrott 279 Mountford v. Harper 444 Mountney v. Watton 663 Mountstephen v. Brooke 84, 220 v. Lakeman 137 Mowatt v. Londesborough, Lord, 30 Mower v. Leicester 502 Mowry v. Bishop 31 v. Home Ins. Co. 174 v. Whipple 551 Mover v. Shoemaker 30 Muddle v. Stride 107 Muge v. Rowan 317 Mullen v. Strieker 480 Muller v. Eno 258, 259, 652 Mullett v. Bemis 35 v. Challis 692 v. Hunt 633, 634 v. Hutchinson 44 v. Mason 260, 261, 521, 562, 652, 653 Mullick v. Badallissen 86 Mulligan v. Curtis 572 Mullins v. Cox 26 Mulvehall v. Millward 559 Mumford v. Brown 188 v. Gething 135, 204 v. Oxford, Worcester & Wol- verhampton Railway Co. 584, 593 Mummery v. Paul 522, 635, 652, 676 liv TABLE OF CASES. Ifuncej 1 >ituus . 1,,'rll'c. Wickersham Mann p. B Muuroe p. I. uke v. l'ilkington 189 520 572 183 178,419,420 South Eastern Railway Co. 493 120 Muntz c. Foreter 587, 679 Murch p. L'oui-ord K. R. 565 Murchie p. Black 604 Mure p. 1\ J_ 03 Mu: . Robinson 630, 734 Murky p. McDermott 218, 610, 617 Murphy p. Caralli 573 . 1 leane 571 p. Smith 568 v. Staton 10! Murray v. Carrie 39 v. Heath 485 p. House 56 v. Judah 115 p. McAllister 538 v. Mann 392, 520 r. Montriou 669 v. Murray 538 v. Stair, Earl of, 89, 352 Muschamp p. Lancaster & Preston Rail- way Co. 100, 105 Mu-grave p. Cave 496, 497 p. Drake 333 ,'rave & Hart's case 228 Musgrove p. Emruerson 666 . ibbs 445 p. Newell 555 Muspratt p. Gregory 688 Musa D p. J'rice 234, 237 Mutual Loan Fund Association v. Lud- low 377, 451 tt p. Green 37 rs P. Baker 587, 677, 678 r. (iuodehild 612 V. Jemmel 480 p. -Mrimath 402, 461 D. M 31 Mytton v. Midland Railway Co. 100, 101, 493 N. h p. Tatlock rXenrick r p. Buhvinkle • . Nia- '•. Allen . rmstrong v. Breeze r. Palmer •viiiliurne 189 25 480, 604 511, 614 596 369 251, 278 4 156 423 P. Worcester & Nashua K 1; 1 100 Nat ien 704 183, 196, 382 National I n- u ranee Co. u. Best 214,419 mal Lancera v. Lovering 32 onal Manure Co 1 Donald 734,735 mal Savings Bank p. Tranah 451 1 li. p. Bnttoi 100 164 •r v. Coliin^'e 536 Naylor v. Mortimore Neal v. Richardson Neale v. Mackenzie v. Proctor v. RatclifFe v. Willie Neate v. Harding Neave v. Avery Nebraska City v. Campbell Needham v. Bremner v. Dowling v. Fraser 324 1 19 504, 645, 686 330 185 195, 201 29 375 495 401 660 634, 744 v. Grand Trunk R. R. 514, 515 v. Rawbone 619 v. San Francisco & S. J. R. R. 570 Neelev v. Lock 393 Neidelt v. Wales 183 Neil v. Allenhofen 539 Neill v. Whitworth 367 Neilson v. Betts 585 Nelson v. Borcbenius 539 v. Bostwick 90 v. Cartwell 32 v. Cherrill 614, 711 v. Couch 421, 655 v. Searle 131 v. Suffolk Ins. Co. 162 Nesbit v. Lawson 57 Ness v. Armstrong Nettles v. R. R. Co. 227 103 Neville v. Boule 366 v. Boyle 457 v. Cooper v. Hancock 712 380 v. Kelly Newall v. Hussey Newberry v. Colvin Newborough, Lord, v. Schroeder 233 459 348 489 157 New Brunswick &c. R. Co. v. Dony- beare 519 New Brunswick &c. Railway & Land Co. v. Muggeridge 230 Newbury, In re 187 Newby v. Reid 160 Newcastle v. Broxtowe 527 Newell v. Hill 517 v. Mayberry 298, 299 v. Radford 137, 281 Newhall v. Holt 464 New Hampshire Savings Bank v. Col- cord 399 New Jersey Steam Navigation Co. v. Merchants' Bank 97, 110 Newlin v. Ins. Co. 163 Newman v. Edwards 379 v. Rook 392 v. Washington 57 v. Zachary 543 Newnham v. Hanney 1 v. Stevenson 620 New Orleans &c. R. R. Co. v. Tyson 107 Newport v. Harley 424 Newport, Mayor of, v. Saunders 248 Newport Railway Co. v. Hawes 226, 227 New River Co. v. Johnson 626 Newry & Enniskillen Railway Co. v. Combe 408 Newson v. Smythies 201, 202 Newton v. Allin 427 v. Beck 622 TABLE OF CASES. lv Newton v. Blunt 273 v. Chambers 244 v. Cubitt 517 v. Ellis 581, 675 v. Foster 282 v. Harland 634, 700, 702 717, 721 v. Holford 561, 710 New York Central R. R. v. Lockwood 97 New York &c. R. R. Co. v. Schuvler 380, 502 Niantic Bank v. Dennia 379 Niblet v. Smith 592 Nichol v. Godtz 257 Nicholls v. Chapman 497, 641 v. Wilson 56 Nichols v. Bastard 619, 713, 725 v. Coolahan 209 v. Johnson 298 v. Luce 741 v. Marsland 506, 567 Nicholson v. Bradfield Union, Guardian of, 453 v. Hood 404 v. Lancashire &c. Ry. Co. 576, 577 v. Potts 323 v. Revill 289, 455, 456 Nickells v. Haslem 679 Nickels v. Ross 585, 678, 679, 680 Nickerson v. Harriman 492, 515 Nickisson v. Trotter 731 Nickleson v. Stryker 559 Nickley v. Thomas 393 Nicklin v. Williams 604 Nielson v. Harford 679, 681 Niemann v. Moss 112 Nimick v. Mut. Benefit Life Ins. Co. 174 Nixon v. Nanney 10 Noble v. Bank of Kentucky 56 v. Bates 134 v. Chapman 418 v. Ward 235, 281, 458 Noden v. Johnson 697 Noel v. Davis 464 v. Hart 59 Noke v. Ingham 318 Nolan v. Jackson 59, 484 Norcross v. Norcross 532 Nordenstrom v. Pitt 34 Norfleet v. Edwards 331 Norman v. Phillips 28 v. Thompson 364, 365 v. Wescombe 645, 646 v. Whitcombe 645 Norris v. Daniell 583 v. Douglass 56 v. Irish Land Company 557 v. Litchfield 562,565,571 Northh v. Richards 553 Norris v. Forest 131 v. Ingamells 609 v. Smith 564, 576 v. Wakefield 285, 455, 456 Northam v. Hurley 628, 735 Northampton, Mayor of, v. Ward 558, 717 Northampton Gas Light Co. v. Parnell 214, 267, 308 North Bank v. Abbott 79 North British Ins. Co. v. Lloyd 393, 399 Northcoate v. Bachelder 569 North Eastern Ry. Co. v. Wanless 566 Northern Central R. R. Co. v. State 571 Northern Transportation Co. v. Sellick 62C North Peuu. R. R. Co. v. Mahoney 572 Northup v. Cook 235 North Western Ry. Co. v. McMichacl 227 v. Sharp 59, 61 v. Whinray 139,399 Norton v. Ellam 71, 222, 470 v. Huxley 526 v. Lewis 79 v. Macintosh 25 v. Nicholls 501 v. Pickering 347 v. Powell 139, 397, 461 v. Scholefield 635, 636, 670, 676 v. Seymour 75 Norwood v. Cobb 420 Nosotti v. Page 37, 446 Notman v. Anchor Assurance Co. 173 Nott v. Stoddard 659 Novelli v. Rossi 176, 299, 420 Novello v. Sudlow 499, 500 v. Toogood 299 Nowland v. Ablett 209, 210, 439 Noyes v. Loring 45 v. Rutland & Burlington R. R. Co. 100 v. Smith 570 v. Stillman 580 Nudd v. Hamblin 433 Nunnery v. Col ton 299 Nurse v. Wills 24, 142, 149, 612 Nurton v. Dickson 354 Nuttall v. Bracewell 625, 627, 676 Nutting v. Conn. River R. R. Co. 101, 102, 566 Nutwell v. Tongue 380 Nye v. Moseley 404 Oakes, In re C14 v. Turquand 520 v. Wood 699, 700, 701 Oakes & Peek's case 394 Oakley v. Davis 710 v. Monck 189 v. Portsmouth & Ryde Steam Navigation Co. 94 Oates v. Hudson 29, 370 O'Barr v. Alexander 57, 483 Obey. The, 603 O'Brien v. Barry 551 v. Boston & Worcester R. R. Co. 568 v. Clement 540, 541, 546, 636, 658 v. Gilchrist 109 v. Lewis 307 v. Smith 115 O'Byrne v. Burn 569 Ocean Ins. Co. v. Rider 57 Ocean National Bank v. Olcott 317 Ockenden v. Henley 252 O'Conner v. Tyves 181, 182 O'Connor v. Marjoribanks 731 Odell v. Wake 429 O'Donnell v. Alleghany Valley R. R. 569 O'Doughertv v. Felt 130 Offley v. Clay 446 Offord v. Davies 398 lvi TABLE OF CASES. lymond I Ijarnbe B . : i ine das (i'ii Gi . Western Ry. Co. Ohrloffo k ..v Alleghany River Ry. r. Keighron Olderehaw p. 1 1< -It . King 131, Oldham '•. Sparks I Oldr impton < Hire, The, Olii k of Tennessee v. Dixon r. Dovatt p. Fielden 110, v. Gray i . North Eastern Ry. Co. iver v. Worcester Ollivaut '-. Bayley (>lli\ • ■■ Booker < dmstead o. Beale v. Partridge • 1 p. Brown O'Mealey p. Wilson < tanelvanj .-. Ja_ r irers • al r. Kittredge Onley p. (iardiner 737, i taslow a. Booth Oppenheim p. Pry . NVhite Line Hotel Co. • ►ppenheimer ;-. Grieves v. Ryde Commissioners < »r.! p. Fenwick ' )rdwa_v v. Colcord a v. McDonald Orfbrd p. Cole - .1 r. Kemshead ( »r_'o-»l p. ( ironing Onflamme, The, ■• V. Ilrouv'hton Ormei p. Beadel Ormond p. Holland ad, Lady, r. Hutchinson 518, 519, < >rinn..l v. Huth Ormeby v. Douglass Orr --. Bigel "- Magi Orridge p. Slierhorne a p. Bnl m p. Bank of United States il'-tt ■I'-adows I •■ -hee ' Taller d i I.. H i Berwick, Mavor of, laymond '■ Bank v. Warren ■I' rson Onldl r. Harrison Ontram -. M..r«wfjod _hty 45 25:i 567, 600 236, 458 362 101, 103 640 Co. 567 426 132, 141 324 483 323 248 303 79 440 74 111,362 434 566 622 495, 502 257, 258 362 264 551, 668 543 297 625 178 738. 739 271 164 532 325 572 122 32,34 79 205 471 97 101 255 370 569 478 521, 522 659, 663 235 79 223 618 56 492 604 550 660 259 258 399 79 393 80 257 395 380 652 Overend, Re 394 Overton v. Freeman 573 v. Harvey 381 v. St. Louis Mut. Life Ins. Co. 174 Owen v. Challis 283 v. Homan 139, 399 v. Knight 724 v. Leigh 512, 595 v. Nickson 730, 732 v. Van Uster 74 v. Waters 73 v. Wilkinson 463 Owens v. Wynne 684 Owings v. Ainot 331 v. Jones 571 Owsley v. Montgomery R R. Co. 502 Owston v. Ogle 215, 217 Oxbey v. Holden 585, 857, 588 Oxenham v. Clapp 384 v. Smyth 520, 524 Oxlade v. North Eastern Railway Co. Oxley v. Holden 218 v. Watts 673 P. Pacific Iron Works v. Newhall Pack v. New York v. Thomas Packard v. Getman Packer v. Gibbins Paddington v. South Eastern Ry Paddock v. Forrester v. Franklin Ins. Co. v. Strobridge Padfield v. Cabell Padmore v. Lawrence Padwick v. Turner Page v. Bent v. Broom v. Church v. Cushing v. Hatchett v. Meek v. Parker v. Shenstone v. Townsend Paget v. Foley Paine v. Boston v. Edsell 331 v. Emery 214 v. Hutchinson 93 v. Middlesex, Sheriff of, 595 Painter v. Liverpool Oil Gas Light Co. 648 v. Pittsburgh 495 Palfrey v. Portland, Saco & Portsmouth R. R. Co. 131, 492 Palk v. Force 39, 62, 300 v. Skinner 593, 594 Palmer v. Andrews 206 v. Cooper 586, 681 v. Costerton 444 v. Fletcher 481 v. Grand Junction Ry. Co. 639, 675 v. Jar main 727 v. Marshall 160 v. Powell 415 v. Stebbins 134 257 495 363 99 183 Co. 489 642, 722 162, 412 393, 519 714 659, 661 73 518, 519 31 686 498 672 447 498, 518, 652 454 501 435, 666 480 v. Temple 381, 421, 423 TABLE OF CASES. lvii Palmer v. Wagstaffe v. Wetmore Palmerton v. Huxton Pannall v. Mill Panton v. Holland v. Williams Papendick v. Bridgwater Papineau v. King Paradine v. Jane Pardee v. Drew 681 480 288 722 604, 605 550 497 25 186 493 Pardington v. South Wales Ry. Co. 96, 358 Pardoe v. Price 29, 591 Parfitt v. Thomson 162 Pargeter v. Harris 180, 430 Paris v. Levy 661 Parish v. Sleeman 1 85 v. Stone 341 Park v. O'Brien 571 Parker v. Adams 571 v. Boston & Maine R. R. Co. 626 v. Bransher 295 v. Farley 551, 552 v. Foote 480 v. Great Western Ry. Co. 29, 370 v. Griswold 625 v. Huntington 498 v. Ibbetson 208, 209, 212, 439 v. Ince 317 v. Leigh 131 v. Meek 559 v.Mitchell 641,737,738 v. Palmer 258, 261, 279 v. Pringle 259 v. Rawlings 119 v. Riley 25, 282, 304 v. Rolls 57, 61 v. Smith 481 v. Taswell 179 v. Way 272 Parkhurst v. Gloucester Mut. Fishing Ins. Co. 162 Parkin v. Moon 340 Parkinson v. Lee 256, 258, 261 v. Smith 51 Parks v. Edge 74, 77 v. Newburyport 626 Parmelee v. Western Transportation Co. 102 Parmer v. Anderson 540 Parmeter v. Parmeter 433 Parmiter v. Coupland 540, 661 Parnell v. Young 717 Parnham v. Hurst 328 Parr v. Jewell 26, 339, 340, 342 v. Lillicrap 448 Parratt v. Goddard 330 Parrett Nav. Co. v. Stower 26, 590 Parry v. Nicholson 298 v. Thomas 641, 642 Parson v. Sexton 258 v. Vestry of St. Matthew 527 Parsons v. Alexander 395 v. Hancock 384 v. Hardy 103 v. Manuf. Ins. Co. 163 v. Martin 42 v. Mayesden 121 v. Pitcher 448 v. Wincbell 498 Partington v. Woodcock 424, 426 Partlow v. Haggarty 561 Partridge v. Bank of England 486 v. Bere 536 v, Dartmouth College 729 v. Menck 607 v. Scott 605, 606, 676 Pascoe v. Pascoe 688 Pasey v. Decatur Bank 80 Pasley v. Freeman 519, 526, 527 Patapsco Ins. Co. v. Coulter 162 Pater v. Baker 549 Paterson v. Harris 283 v. Powell 247 v. Wallace 569 Patience v. Townley 76 Patnote v. Sanders 448 Patrick v. Colerick 720 v. Ludlow 160 v. Putnam 209 v. Sheddon 177, 179, 420, 421 v. Stubbs 641 Patten v. Fullerton 444 v. Gurney 498, 526 v. Rea 568, 574 Patterson v. Clyde 101 v. Stoddard 183 v. Thompson 558 Patteshall v. Tranter 259 Pattison v. Bedford Union 139 v. Jones 547, 548, 659, 660 Patton v. McFarlane 79 Paul v. Dod 28, 234, 237 v. Frazier 206 v. Joel 334 v. Morse 429 Paul &c. v. Brown 251 Paulding v. Dover, Mayor of, 266 Pauling v. London & North Western Ry. Co. ii Paull v. Simpson 121, 196, 429 Paulmier v. Erie R. R. Co. 572 Pawly v. Holly 622 Payne v. Able 317 v. Brecon, Mayor of, 214, 453 v. Eden 364 v. Hales 283, 442 v. Hayne 186 v. Jenkins 32 v. Roberts 581 v. Rogers 479 v. Sheddon 737 v. Whale 30 v. Wilson 131, 132, 142 Paynter v. James 362 Payson v. Macomber 542 Peachey v. Rowland 565, 573, 581 Peacock v. Harris 248 v. Nicholls 727, 728 v. Pursell 350, 351 Pearce v. Brooks 402, 404 v. Davis 444 Pearcey v. Walter 696 Pearl v. Wells 456 Pearse v. Robins 374 Pearson v. Isles 633 v. Le Maitre 540, 659 v. Pearson 324 v. Skelton 442 v. Spencer 738, 741, 742 v. Wheeler 522 Pease v. Chaytor 535 1 Vlll TABLE OF CASES. Babui 1 tickcn ]'. .. P< -ton .1 r. Watson Peck r. IS >•. Hibbard Wal r. M • \ v. 1 >;i\ is 257 402, 461 399 404, 550 675 319 571 218 535 North Staffordshire Ry. Co. 96, 357, 358 star 322 • Merchants' Ius. Co. 163 is 519 . Mil iraw 533 : Daubany 263 . Aneell 402 Pelletreao o. Kathbone 124 Pembarton v. Chapman 120, 445 v. Colls 539 i'. Vaoghan 135 Penartli &. Co. v. Cardiff Water Works 628 isl v. Adams Express Co. 102 Penf.. i ■. Abbott 200 tllOK '. .Mi rsev Docks Board 495 v v. Watts 196, 199 Pennr.Bibby 585,587 Ward 669, 671, 673, 698 Pennell v. Aston 314 v. Walker 309 Pennington v. Yell 56, 57, 483 Penn. Canal Co. v. Bently 571 Pennsylvania R. R. Co. v. Ackerman 571 v. Berry 101 v. Butler 97 v. Henderson 515 v. Kerr 567 v. McCloskey 514 v. McTighe 571 Penprase v. Crease 37 Penrose v. Martyn 74, 229 uddock's case 482,580 People V. lirush 90 v. Russell 90 • . Musson 605 Piatt v. Bromage 29 v. Pickens 616 v. Ferry R. R. Co. 571 v. Schenk 264 v. Hibbard 145 v. Selleck 741 Playfair v. Musgrove 672, 674, 714 v. Strut 553 Plevin v. Prince 52 v. Williams 152 Pluckwell v. Wilson 567 v. Woodward 134 Plummer v. Woodburne 381, 422 Piercy v. Roberts 312 Pochin v. Duncombe 116 Pierre v. Fernald 480 Pocock v. Moore 613 Pierrpont v. Fowle 499 v. Russen 56 Pierson v. Hooker 80 Polhill v. Walter 45, 73, 523 Pigeon v. Osborn 466 Polkinhorn v. Wright 700, 702 Piggott v. Birtles 506, 510, 511 Pollard v. Pollard 125 v. Stratton 195 v. Shaaffer 183 Pigot's case 298 Pollen v. Le Roy 237 Pigott v. Bayley 497 Pollock v. Stables 29 v. Cadman 306 v. Stacey 252 v. Cubley 730 v. Turnock 71 v. Eastern Counties Railway Co. 578 Poltherd v. Puncheon 260 v. Kemp 701 Pomfret v. Ricroft 655 v. Rush 435 Pond v. Gibson 666 Pike v . Nicholas 500 v. Williams 455 17. Stevens 314 Pontifex v. Rignold 525 Pilbrow v. Pilbrow's Atmosph sric Rail- v. Wilkinson 238, 266, 460 way Co. 219 Poole v. Bell 313 Pilgrim v. Hirschfield 306 v. Grantham 610 Pilkington v. Cook 125, 245 w.Hill 251, 255, 473 v. Scott 134, 135 v. Longridge 685 Pillott v. Wilkinson 303, 392, 620 v. Pembrey 17, 270 Pillsbury v. Moore 580 v. Tunbridge 470, 472 Pilmore v. Hood 519, 525 v. Warner 194 Pirn v. Curell 517 Poole's Patent, Re 586 v. Reid 161, 171, 410, 413, 414 Pooley v. Brown 330, 458 Pindar v. Wadsworth 497 v. Gilberd 131 Pinero v. Judson 183 v. Harradine 374, 376, 451 Pinkerton v. Woodward 532, 533 Poor v. Davis 260 Pinkus v. Sturch 15 Pope v. Andrews 291 Pinney v. Barnes 421 v. Bavidge 113, 114 TABLE OF CASES. <■. Biggs v. Chaffee v. Tillman am r. Jones pleweU v. ll'ulkinson v. Pierce ole Porritt f. Baker Porter v. Cooper r. Irott r. KhkllS '.itterson v. PettetigOl t>. Tavlor r. Walker Portman v. Middleton Portmore v. Bunn 424 298 621 51 605, 626 561 367 240, 404 33 113, 281 321, 430 295 239 445, 446 313 236, 242, 267 184 i [aland Union, Guardians of, v. Whillier 398, 399 man v. Harrell 644 : ' . Dawson 730 Pott v. Clegg 70 v. L> 292 315 Potteu v. Bradley 592 Potter r. Brown' 319 v. Deboos 205 V. Faulkner 568, 569, 573, 669 v. Lauding 94 layo 56 r. Parsons 59 r. Rankin 160, 163 v. Suffolk Ins. Co. 162 sparrow 304 Ponlter v. Killingbeck 117 atimore 258 ■ Fuller 254 Fraser 42 ■• Davis 45, 46, 478, 520 Powell v. Aneell 6 Bagg 616 v. Bradbury 439 v. Edmunds 519 V. Hoyland 520, 620 >'■ Hyde 162, 413 V. Jessopp 228 >-. Myers 493 w burgh 151 v. Penn. R. H. 96, 97 v. liees 615 ■ disbury 517 Power » . Barbam 262 522 V. Butcher 28, 157, 290,' 422 °- lz "I 386,388 Ware 299 Harding 394 PowIm r. ha 159, 410 Powll . r. New ton 53 v. Wall I89 '■uckley 508 '. Ea parte 50 rn-r 534 v. Humphrey 137 .-I .urg & Lake Champlain l;. I: 102 ' r '' r ' - - 616,712,720 ity 502 686, 688 1 ' mpton 245, 468 .ley ' 432 iott 424 ( 427 Prentice v. Harrison Prentiss v. Danielson Presbrey v. Williams Prescott v . Boucher v. Morris v. Morse v. Parker Preston v. Christman v. Cooper v. Mann v. Neale v. Peeke v. Simons Prestwick v. Poley Prew v. Burton Price v. Barker v. Edmund3 710 80 432 687 406 124 124 289 550 379 35 151, 156 317 59, 483 298 398, 399, 455, 456 347 v. Great Western Ry. Co. 440 v. Green 135 v. Healey 704 v. Hewitt 24 v. Ley 373 v. No'ble 133 v. Peek 671, 673 v. Powell 94, 107 v. Price 349 v. Seaman 253 v. Seeley 704 v. Shute 269 v. Taylor 220 v. Williams 26, 181, 249 Prichard v . Nelson 462 v. Timothy 321, 324 Pricket v. Bovey 152 Prickett v. Badger 28, 39 Priestley v. Fernie 600 v. Fowler 568 v. Pratt 312, 727 Prince v. Brunetti 75, 347 v. Nicholson 387 Prince of Wales v. Crossman 2 Prince of Wales Assur. Co. In re 159 v. Harding 172 Pringle v. Wenham 481 Prior v. Coulter 341 v. Henbrow 29, 121, 124 v. Smith 274 v. Wilson 661 Pritchard v. Hitchcock 398 Lonj 616 v. Merchant & Tradesman's Mut. Life Assur. Society 1 72, 175 v. Powell 497, 684 Pritchard, in re, ex parte Turner 302 Pritchett v. Boevey 46, 612 v. Gratrex 675 Proctor v. Harris 581 v. Hodgson 741 v. Keith 186 v. Nicholson 729 v. Owens 5*38 Prole v. Wiggins 404 Proprietors v. Bishop 56 Proud v. Mayall 48 Proudfoot v. Montefiore 392 Proudlove v. Twemlow 512 Providence v. Adams 609, 717, 718 Provident Life Ins. & Fire Co. v. Baum 174 Prudhomme v. Fraser 542, 547 TABLE OF CASES. lxi 440, 672, 674, 552 714, 715 268 625 511 331 686 465 611 57, 483 361, 362 455 139, 399 479, 642 630 278 515 Pryce v. Belcher Pu'gh v. Griffiths v. Stringfield v. Wheeler Palfrey v. Baker Pullen v. Hutchinson v. Pilmer Purchell v. Salter Pursell v. Home Purves v. Landell Pust v. Dowie Putnam v. Lewis Pybus v. Gibb Pye v. Mumford Pyer v. Carter Pym v. Campbell v. Great Northern Ky. Co. Q. Quarman v. Burnett 567, 574, 576, 577 Quarrier v. Colston 395 Quarrington v. Arthur 441 Queen's College, Oxford, v. Hallett 536 Queenshead Industrial Society?;. Pickles 10 Quiggin v. Duff 639 Quimby v. Vanderbilt 566 Quin v. King 89 Quinby v. Manhattan Cloth &c. Co. 130 Quincy Canal v. Newcomb 580 Quinton v. Courtney 532 R. R. v. Berry v. Crossley v. Darlington v. Ivens v. Light v. Pedley v. Walker Rabey v. Gilbert Race v. Ward Radcliff v. Mayor &c. Ratcliffe v. Anderson v. D'Oyley Radford v. Smith Radmore v. Gould Raikes v. Todd Railroad v. Manuf. Co. Railroad Co. v. Adams v. Gladmon v. Snyder v. State v. Still Railton v. Mathews Raine v. Alderson Rainsdon, In re Raison v. Mitchell Raleigh v. Atkinson Ralli v. Janson v. Schofield v. Scholefield Ralston v. Smith Ram v. Duncombe Ramage v. Ryan Ramsay v. Gardner v. Nonabell 547 546 530, 557 531 704 580 704 79, 334, 336 625, 644 604, 626 307 591 240 313 277, 367, 397 96, 102 570 571, 671 572 570 570 399 593, 655, 689 149 600 478 163 485 504 585, 586, 678, 680 18 546 151 648 Ramsay v. Warner 445 Ramsbottom v. Harcourt 274 v. Tunbridge 181 Ramsden v. Boston & Albany R. R. Co^ 502, 568 v. Gray Ramuz v. Crowe Rand v. Vaughan Randall v. Hazelton v. Ikey v. Moon v. Rich v. Rigby v. Roper v. Trimen Randell v. Wheble Randleson v. Murray Randolph v. Hollingsworth Randon v. Tobey Rangeley v. Spring Ranker v. Goodrich 240, 241 346 645 498, 519 36 289, 337 31 47 46, 152, 235, 260, 262 45, 46, 478, 523 598 577, 578 42 434 379 538 v. Great Western Ry. Co. 5, 502 Rankin v. De Medina 419, 710 v. Goddard 420 Ransford v. Copeland 402 Ransom v. Stanberry 380 Raper v. Birbeck 299 Raphael v. Bank of England 223, 341, 345 v. Goodman 393, 596 v. Pickford 103, 488 Rasberry v. Moye 344 Rastrick v. Beckwith 274 Ratcliffe v. Planters' Bank 331 Ratt v. Parkinson 535 Ravenscroft v. Wise 449 Ravenza v. Macintosh 58, 668 Rawdon v. Wentworth 716, 724 Rawle v. American Mut. Life Ins. Co. 174 Rawlings v. Bell 156, 519, 524 v. Derby, Overseers of, 461 v. Desborough 415, 417 v. Wickham 519 Rawlins v. Till 611 Rawlinson v. Clarke 136, 204, 431 v. Shand Rawson v. Johnson v. Samuel Rawstorne v. Backhouse v. Gandell Rawstron v. Taylor Ray v. Jones v. Lines Payment v. Minton Raymond v. Bearnard v. Eld ridge v. Isham v. Loyl v. Minton Rayner v. Eussey v. Wright Rea v. Sheward Reab v. M'Allister Read v. Amidon v. Brookman v. Dunsman v. Edwards v. Golding v. Jewson v. Legard v. Nash 294 239 373 518 455 625, 626 323 480 300 30 34, 87 32 242 50 374, 376 29*4 677, 712 31, 259 532 299 214 669 47C 148 436 142 lxii TABLE OF CASES. Bead t\ Pope 176,1/8 Beade v. Couquest 498, 500, 501 r. Lamb 281 Midland Ry. Co. 492, 566, 577 Beadie v. Loudon & North Western Ry. Co. 573 ling, Mayor of, v. Clarke 248 . i'. Richardson 364, 366 v. White 366 fieldr.Davis 46 Redhead r. Walton 303 Redman r. Pj m- 539 .•.Wilson 162,393,411,412 Redmond v. Liverpool &c. S. S. Co. 107 Smith 275, 278, 410 r. Smock 237 Redwav, Re 324 ' v. Gray 538, 539 r. McAudrew 551 v. Webber _ 269 Reece v. Righy 58, 61 Reed v. Belfast 502 v. ( Joker 674 v. Cowmeadow 674 r. Drake 90 v. Kay 415 r. Lamb 354, 394 r. Philadelphia &c. R. R. Co. 99 v. Royal Exchange Assur. Co. 174 v. Thoyta 693 v. United States Ex. Co. 102 v. Upton 348 v. Wiggins 316, 319 v. Williams 559 Reedie v. London & N. W. Ry. Co. 495 Rees v. Morgan 385 v. Overbangh 298 v. Watts 463 Reeve r. Bird 426 v. Palmer 59 v. Taylor 699, 700 v. Wbitmore 504, 505 Reeves v. Capper 733 v. Hearne 458 Reggio o. Braggiotti 260, 652 . Barmston 404 v. Cumberland, Justice of, 60 r. Driscoll 697 r. Leatham 354 r. Lichfield 60 <•. Mabel 613 v. Merthyr Tydvil 655 v. Metropolitan Board of Works 626 Mill 680 o. Newman 661 r. North Owram 50 v. Pharmaceutical Society 48 611 Kf -i> hart - . < lastator 393 ' • Mian 159 D. Uartlett 445 v. Dicki 449 l airbanka 621 '' HoskinB 113, 362, 458 v. Rensselaer Glass Factory 32 '■ ' 410 v. Teakle v. Tenderden, Ix)rd, ReOly >■. < lavenangh Reimers v. Druce 147 390 57, 483 177, 420 Rein v. Lane 138 Reindell v. Schell 281 Reis v. Scottish .Equitable Life Assur- ance Co. 372,373,417 Remfrey v. Butler 29 Remington v. Sheldon 5G6 v. Taylor 2 Renard v. Levinstein 587 Rennie v. Beresford 36 v. Bobinson 182 Benno v. Bennett 213, 461 Benshaw v. Bean 480 Bespublica v. Delongchamps 611 Beuss v. Picksley 218, 394 Beuter v. Electric Telegraph Co. 247 Bevell v. Wetherell 177 Bevis v. Smith 660 Rex v. Akenhead 703 v. Bateman 527 v. Bigge 333 v. Clapham 408 v. Cording 68 v. Creevey 660 v. Downshire, Marchioness of, 737 v. Eton College 117 v. Everdon 117 v. London, Mayor of, 717 v. Padstow, Inhabitants of, 181 v. Pedley 581 v. Shakespeare 4 v. Wheeler 585 Rexford v. Rexford 370 Rey v. Toney 47 Reybold v. Voorhees 458 Reynolds v. Bowly 312 v. Bridge 5, 136, 204 ■6. Douglass 79 v. Doyle 151, 338 v. Fenton 176, 178, 420 v. Iverney 339 v. Welsh 3 Bhind v. Wilkinson 159 Bhoades v. Blackiston 328 Bhode v. Thwaites 234 Bhodes v. Gent 74 v. Smethurst 432 Bibble Navigation Co. v. Hargreaves 248 Ricardo v. Garcias 419, 420, 422 Bice v. Andrews 234 v. Baxendale 101, 103 v. Dwight Manuf. Co. 256 v. Mayo 39 v. Montpelier 565 v. Ontario Steamboat Co. 103 v. Peet 30 v. The Polly 243 v. Shute 269 Eich v. Basterfield 581 v. Unwin 66 v. Woolley 645, 646 Bichard v. James 463 v. Nelson 36 Bichards v. Allen 30 v. Easto 2, 180, 675, 676 v. Fry 641, 737 v. Harper 606 v. Hay ward 213 v. Heather 121, 217 v. Killam 181 TABLE OF CASES. lxiii Richards v. London & South Coast Rail- way Co. 493 v. Peake 642 v. Richards 84, 148 v. Rose 605, 606 v. Suffield 306 v. Symons 711 v. Turner 704 v. Williamson 608 Richardson v. Boright 406 v. Boston Chemical Labora- tory 470 v. Chasen 46, 612 v. Chickering 379 v. Cooper 458 v. Duncan 370 v. Dunn 46, 522 v. Fouts 560 v. Frankum 728 v. Gifford 187 v. Griffin 53, 122 v. Hall 183 v. Locklin 2, 581 v. London & South Coast Railway Co. 101 v. New York Central R. R. Co. 492, 514, 515 v. Orford, Mayor of, 518 v. Pond 480 v. Reed 231 v. Roberts 538 v. Tomkies 684 v. Vermont Central R. R. Co. 604 v. Williamson 45 Richart v. Scott 604, 605 Richbell v. Alexander 320, 401, 528 Richels v. State 611 495 v. Smith 532, 533 Richmond Hotel Co. (limited) in re, ex parte King 323 Richmond Manuf. Co. v. D.avis 298 Richter v. Selin 79 Ricker v. Freeman 567, 572 Rickett v. Metropolitan Railway Co. 229, 580 Ricketts v. East & West India Docks Railway Co. 517 v. Loftus 294 v. Salwey 497 v. Weaver 199 Riddle v. Proprietors of Locks & Canals on Merrimac River 502 v. Sutton 66 Rideley v. Ryle 505 Rider v. Edwards 457 v. Ocean Ins. Co. 159 Ridge v. Hardcastle 274 Ridgway v. Hungerford Market Co. 208, 282, 438 v. Stafford, Lord, 508 Ridley v. Plymouth Banking Co. 155 Rigby v. Bristol, Mayor of, 265 v. Hewitt 571 Rigg v. Lonsdale 603, 722 Rigge v. Burbidge 266 Riley v. Baxendale 515, 568 v. Hartford Ins. Co. 160 v. Pakington 295 Richmond v. Long Ring v. Roxbrough Ringgold v. Ringgold Ripling v. Watts Rippinghall v. Lloyd Kisbourg v. Bruckner Riseley v. Ryle Ritchey v. Davis Ritchie v. Bradshaw v. Smith Riviere v. Brown Rixford v. Smith lloakes v. Manser Roath v. Driscoll Robarts v. Mason Robbins v. Chicago v. Eaton v. Fletcher v. Jones v. Pinckard 26,49 31 1 253, 289, 457, 474 256, 521 599, 693 551 115 404 481 97, 488 89, 352, 353 626 274 495 406 540, 542 573, 580 79, 80 Robert v. New Eng. Mut. Life Ins. Co. 174 Roberts v. Barber 304 v. Barker 189 v. Brett 19 v. Brown 545 v. Connelly 559 v. Davey 722 v. Eberhardt 51, 66, 308 v. Elsworth 35 v. Great Western Railway Co. 477 v. Haines 606 v. Hardy 297 v. Havelock 264 v. Jenkins 260 v. Karr 609 v. Roberts 538, 542, 547 v. Rose 584, 631, 673, 677, 734, 736 v. Smith 209, 579 v. Snell 686 v. Taylor 616, 700, 718, 720, 721 v. Tucker 332 v. Wood 388 Robertson v. Ellis 330 v. French 161 v. Gauntlett 673 v. Hayne 9 v. Kennedy 99 v. Livingston 42 v. Showier 730, 731 v. Smith 455, 456 v. Steward 333 v. Struth 177, 179 Robeson v. Pittenger 480 Robins v. Bridge 263 v. Power 208, 243, 244, 439 Robinson v. Burton 558 v. Cone 572 v. Cotterell 71 v. Davison 120 v. George's Ins. Co. 309 v. Gould 131, 370 v. Great Western Railway Co. 96, 487 v. Harman 254, 449, 682 v. Hartridge 620 v. Hawkesford 115,362 v. Hindman 210 v. James 245 v. Learoyd 194 v. Little 340 lxiv TABLE OF CASES. Robinsou v. London & South Western Railway Co. 9" r. Manufacturers' Ins. Co. 160 tfaxchant 547,548 r. M;iv 34 v. New York &c. R. R. Co. 571 v. Reynolds 345 v. Rowland 305 v. Butter 62, 730 v. South Western Railwav Co. 96, 487,*4S9, 639 r. Waddington 512 v. Walter 533, 729 v. Ward 470 Robson v. Doyle 268, 269 v. Eaton 483 p. Lu-cnmbe 393 V. Oliver 115,223,362 o. Whittingham 481 Rochdale Canal Co. v. Radcliffe 736 Roche o. Champayne 464 Rochefort v. Battersby 54 Rochford v. Daniel 115 Ruck v. Slade 436 Roddam v. Morley 144 Rodee r. Wade 234 Roden v. Evton 506 v. Rydo 332 Rodgers v. Lacey 538 Maw 156 v. Nowill 607, 608 Rodriguez v. Melhuish 603, 694 Roe v. Birkenhead Railway Co. 552 v. Cobham 448 Roffey v. Henderson 130 Rogers v. ( lifton 548 v. < Instance 440 v. Hackett 79 v. Hadley 378 v. Hanson 458 Jenkins 3 v. v. Jones v. Kenney v. Kneeland ' . Macnaraara v. Newport v. Nilea v. Parker v. Price v, Sawin v. Spence v. Steele v. Taylor v. Wheeler o. Wig Rofrf-rs'.u --. Ladhrooke BoEback v. Pacific R. R. Co. Rohl V. 1'arr Davis ■ , Ro» well Rolin > . Steward RolL atom I >ixon Rollins v. Bartlett Rolt i I e R. R. Co, r. Sloan I riiiity House lej v. Kelly ireat Western R. R. Co B th v. Wilson r v. Holland 598, 614, 650 126 151 485 567 257 508 249 480 8, 273, 711 208 594, 605, 606 99 182 468 569 162 522 89 70 330 298 132, 141 103 564 500 100, 102 516,517 29 Roper v. Lendon Popes v. Lane Roscoria v. Thomas Rose v. Groves v. Hall v. Hart v. Hurley v. Innis Rosetto v. Gurney Rosewarne v. Billing Rosewell v. Prior Rosling v. Muggeridge Ross v. Clifton v. Groves v. Hill v. Jaques v. Knight v. Moses v. Robeson v. Sadgebeer Rosseter v. Cahlman Rossi v. Grant Rotch v. Hawes Roth v. Schloss Rothery v. Munnings Rothschild v. Currie 171, 309 234 33, 256 582, 636, 676 445 464 520 551 163 29, 395, 396 479, 581 365 287, 645 582, 629, 632 68, 100, 493 290 463 290 25 134 403 243, 439 145 29 56 336 Rounds v. Delaware, Lackawanna &c. R. R. Co. 502, 568 Rouse v. Southard 433 Routh v. McMillan 111, 113, 362 Routledge v. Abbott 725 v. Hislop 421 Roux v. Salvador 166 Rowbotham v. Wilson 563, 604 Rowcliffe v. Edmunds 538 v. Murray 697 Rowe v. Ames 697, 691 v. Hop wood 406 v. Roach 540, 549 v Williams 171 Rowland v. Blakesly 37 Rowlandson v. Roantree 21, 339 Rowley v. Stoddard 455 Rowson v. Earl 55 Royal British Bank v. Turquand 453 Royal Exchange Assur. Corp. v. Moore 295 Royce v. Allen 45 v. Guggenheim 183, 201, 424, 427 Rubery v. Stevens 382, 390, 429 Ruchbell v. Alexander 711 Ruck v. Williams 495, 566, 572, 580 Rudd v. Scott 674 Ruddock v. Marsh 147 Ruff v. Bull 432 Rugg v. Weir 234 Ruggles v. Swauwick 339 Rumball v. Munt 1 1 Eumbelow v. Whalley 450, 683 Rumsey v. North Eastern Ry. Co. 493 v. Webb 661, 662 Rundle v. Little 454,711 Kundlett v. Weeber 34, 35 Runyan v. Caldwell 145 Rushworth v. Taylor 620 Russel v. Viscount Sa da Bandiera 265 Russell v. Bell 467 v. Briant 118 v. Carrington 234 v. Clark 518 TABLE OF CASES. lxv Russell v. Ledsam 588, 589, 678, 679, 680, 681 v. New Haven Steamboat Co. 101 v. Nicolopulo 261, 521 v. Palmer 58 v. Pellegrini 309 v. Phillips 42 v. Shenton 580, 581, 583, 585 v. Smith 118 v. Smyth 176,177,179 v. Thornton 167, 412 Rust v. Gott 30 v. Nottidge 40, 213 Rutherford v. Evans 541, 547 Rutter v. Blake 259 Ruttv v. Benthall 110 Ryal'l v. Rolle 733 Ryalls v. Bramall 17, 121, 272 v. Leader 660 Ryan v. Clark 719 v. Cumberland Valley R. R. Co. 568, 570 v. Dayton 209 v. New York Central R. R. Co. 567 v. Sams 147 v. Shilcock 504 v. Ward 288 Ryder v. Ellis 74 v. Wombwell 406, 409, 565 Ryland v. Wormald 16 v. Wornland 269 Rylands v. Fletcher 626 S. Sabin v. De Brugh Sabourhi v. Marshall Sack v. Ford Sadler v. Henlock Saffery v. Elgood Safford v. Drew Sajre v. Wilcox 675 600 110, 490 495, 573, 581 684 515 131 Sager v- Portsmouth, S. & P. & E. R. R. Co. 96, 97, 100, 101, 104 Said v. Rhodes 348 St. Albans Steamboat v. Wilkins 264 Sainter v. Ferguson 5, 135, 136, 318 St. Helen's Smelting Co. v. Tipping 580, 584, 676 St. John v. American Mut. Life Ins. Co. 174 t\ Garow 434 v. Homans 1 1 5 v. Van Santvoord 100 St. Losky v. Green 241 St. Louis Ins. Co. v. Glasgow 162 St. Louis Life Ins. Co. v. Graves 173 St. Louis, A. & C. R. R. v. Dalby 502 St. Nicholas, Churchwardens of, v. Skctchley 11 Saladin v. Mitchell 237 Salinger v. Simmons 107 Salisbury v. Gladstone 644 v. Gourgas 58 v. Hatcher 252 Salmon v. Bensley 482, 580 v. Watson 130 Salomons v. Pender 39 v. Stavely 86 Salter v. Brunsden 505 vol. ii. e Salter v. Burt 116 v. Woollams 27, 240 Salter's Company v. Jay 479, 482 Salters v. Delaware & Hudson Canal Co. 569 Sampson v. Hoddinott 625, 734, 735 v. Routh 510 v. Shaw 30, 402 Samuel v. Barker 177 v. Duke 716, 724 v. Green 115 v. Judin 477 v. Morris 121, 725 v. Payne 703 Sandall v. Bennett 26 Sand back v. Thomas 553 Sandeman v. Scurr 102, 110, 490 Sanders v. Branch Bank 288, 289, 445 v. Coward 353 v. Vanzeller 97, 118 Sanderson v. Bowes 222 v. Collman 332, 333, 380, 381 v. Symons 338 Sandon v. Jervis 699 v. Proctor 454 Sands v. Clarke 77, 222 v. Taylor 237 Sandford v. Hayes 434 v. Woods 689 Sanquer v. London & South Western Ry. Co. 487 Sansom v. Rhodes 254, 255 Sappington v. Watson 668 Sarazin v. Hamel 500 Sarch v. Blackburn 562 Sard v. Rhodes 290, 349, 458 Sarell l\ Wine 53, 82 Sargeant v. Parsons 1 83 Sargent v. 559 v. Gile 239 v. Morris 158, 490 Sarquy v. Hobson 162 Sasseen v. Clark 532 Saul v. Jones 72, 77, 79 Saunders, Re 347, 391 v. Best 324 v. Newman 627, 630 v. Warton 347, 391 Saunderson v. Griffiths 190 Savage v. Brewer 553 v. Madder 396 Savannah Natl. Bank v. Haskins 332, 337 Savary v. Clements 243 Savignac v. Roome 567 Savill v. Jackson 89 Saville v. Sweeny 546, 548 Savin, Re 324 v. Holyoke Ry. Co. 28, 265 Savory v. Chapman 650 Saward v. Anstey 156 Sawtell v. Gillard 19 Sawyer v. Hannibal & St. Joseph R. R. 566 v. Lupkin 436 v. Northfield 503 v. Proctor 216 v. Vaughn 341 Saxon v. Castle 552, 554 Saver v. Dufaur 9 v. Wagstaff 348, 349 Ixvi TABLE OF CASES. Sayles v. Blane B ward v. Stevens Scanlao v. Cowley v. Wright Scarfe v. Halifax v. Morgan Scattergood v. Sylvester Scots » True 22S 109 551 3 29, 125 461, 724, 729, 730 620 436 ck v. Northern &c. E. R. Co. 569 ibal •■■ Fairbain 553 Bchibsby v. Westenholz 420 Schiell v. Blackburne 607 - ild v. Kilpin 346 Schilizzi v. Deny 113 > 362 Schlencker «>. Muxey 152, 155 Schlesinger v. Stratton 28, 239 Schlosa -. Heriot 363 Schlumberger v. Lister . Avrey Schmidt v. Blood v. Limehouse o. Beoria Ins. Co. Schofield v. Corbett Scholea v. Ackerland v. Hargreaves r. Hilton Scholey v. Mearns v. Walton 374, 588 110 145 32 170 463, 465, 468 107 497 634 289 434 School District in Medfield v. Boston &c R. EL Co. 97, 105 Schraedcr v. Hudson River R. R. Co. 100 Schreger v. Garden 459, 682 Schrimper v. Heilman 540 Schuhmau v. Garratt 380 - wartz v. Gilmore 495, 573 Scofield v. Ferrers 551 Scothorn v. South Staffordshire Ry. Co. 100, 106 Scott v. Avery 171,309 v. Boston & New Orleans Steam- ship Co. 103, 236 v. Chappelow 25 v. Dixon 520, 525 v. Dublin & Wicklow Ry. Co. 570 v. Eastern Counties Ry. Co. 238 v. Ebury 295 v. Jackson 92 r. Lewis 716, 724 v. Littledale 373, 458 v. Liverpool 309 v. London Dock Co. 565 »•. Manchester, Mayor of, 502,572,575 v. Newington 733 v. Pilkington 420 v. Staley 89 Stanford 500 V. Surman 42, 478 V. Tliornas 313, 727 r. Wakem 614 r. Walker 331 v. Watson 19 ■ : i Griffith 103 e '•. Whittington 59 Scranton v. Clark 256 '• Tilly 458 ribni r p. Kelley 501 rnton v. Taylor 697, 707, 708 Bcnddez v. Worster 234 Beabnry v. Stewart 182 Seacord v. Miller 80 Seagrave v. Union Mar. Ins. Co. 159 Seal v. Hudson 244 Seally v. Powis 121 Seaman v. Low 36 Seare v. Prentice 607 Searle v. Lindsay 568, 569 Searles v. Sadgrove 470, 472 Sears v. Lyon 583 Seaton v. Booth 255 v. Scales 21 v. Skey 21 Seaver v. Boston & Maine R. R. 568, 569 v. Morse 209 v. Seaver 152 Secor v . Sturgis 421 Sedgwick v. Daniell 216 Seed v. Higj, r ins 680 Seeger v. Duthie 111,361, 362, 463 Seeley v. Howard 251 Seixas v. Woods 257 Seixo v. Provezende 520, 607 Selby v. Browne 424 v. East Anglian Ry. Co. 11 Selleck v. French 32 Sellers v. Dickenson 585 v. Tell 548 Selway v. Fogg 393 Semenza v. Brinsley 465 Semple v. Pink 131 Senhouse v. Christian 738, 740 Senior v. Armytage 248 v. Ward 515,569, 570, 572, 579 Sentance v. Pool 436 Sergeant v. Chafy 686 Serle v. Bradshaw 384 v. Norton 115, 362 v. Waterworth 121, 382 Setzar v. Wilson 498 Severence v. Kimball 29 Severin v. Leicester 18 Seward v. Baker 248 Sewell v. Campion 612 v. Dale 330 v. Evans 332 Seymour, In re 317 v. Ashorne 585 v. Brecon, Mayor of, 302 v. Butterworth 661 v. Gartside 205 v. Greenwood 575 v. Lewis 741 v. Maddox 477, 574, 5 v. Minturn 288, 445 Shackel v. Ranger 21 Shackell v. Rosier 402 v. West 68 Shadwell v. Hutchinson 481, 482, 593, 654 v. Shadwell 207 Shafer v. Loucks 550, 551 Shannon v. Owen 621 Shapley v. Bellows 56 Sharland v. Leifchild 279 Sharon v. Mosher 652 Sharp v. Bailey 79 v. Fox 18 v. Hancock 629 v. New York 519 v. Whittenhall 231 Sharpe v. Farmer 402 TABLE OF CASES. lxvii Sharrod v. London & North Western Ry. Co. 517 Shattuck v. Green 256 Shatwell v. Hale 674 Shaul v. Brown 551 Shaw v. Archer 304 v. Arden 57, 58 v. Berry 532 v. Holland 228 v. Kay 186 v. Kidder 59, 484 v. Pratt 455 r. Robberds 171 v. Stenton 2 01, 564 Shears v. Wood 627 Shedden v. Patrick 420 Sheehy v. Professional Life Assur. Co. 24, J 177, 179, 420 Sheen v. Bumpstead 526 v. Garrett 318 v. Ritchie 618 Sheffield v. Ladue 45 Sheffield, Aston-under-Lyne & Man- chester Rv. Co. v. Woodcock 227 Sheldon v. Cox 119 v. Purple 125 Shelton v. Banks 2 69 v. Brahhwaite 334 v. James 73 Shenk v. Philadelphia Steam Propeller Co. 107 Shepard v. Richards 30 Shepeler v. Durant 29 7 Shepherd v. Breed 319 v. Bristol & Exeter Ry. Co. 100, 101, 493 v. Conquest 118, 501 v. Kain 257, 261 v. Naylor 109 v. Pybus 257, 261, 653 v. Sharp 2 »7 v. Shepherd 73 Sheppard v. Hall 648 v. Union Bank of London 732 Sherburne v. Goodwin 1 22 Sherfey v. Bartley 562 Sheridan v. Brooklyn &c. R. R. Co. 572 v. Dean 562 v. New Quay Co. 312, 359, 711, 725 v. Phoenix Life Assur. Co. 172 Sheriden v. Smith 471 Sheriff v. James 5 1 - 2 Sherman v. Comstock 116 v. Fitch 45 v. R. R. Co. 570 v. Rawson 206 v. Rochester &c. R. R. 568 Sherrington v. Yates 84, 148, 149, 225 Sherry v. Oke 254 Sherwiu v. Swindall 610 Sherwood v. Stone 46 v. Sutton 433, 652 Shcttle, in re, ex parte Godden 322, 324 Shettleworth v. Neville 400 Shewell v. Givan 32 Shield v. Wilkina 111 Shields v. Arndt 626 v. Yonge 568 Shilcock v. Pasman 61, 277, 307, 483 Shilling v. Accidental Death Ins. Co. 174, 176,415 Shipley v. Fifty Associates 577 Shipman v. Thompson 468 Shipwick v. Blanchard 504 Shires v. Burrow 5 Shirley v. Fellows 79 Shoemaker v. Benedict 434 Shore v. Bentall 162 Shoreditch v. Hughes 473 Short v. Hubbard 686 v. McCarthy 432 v. Simpson 109, 361 v. Stone 205, 206, 207, 437, 438 Shortland v. Govett 709 Shrewsbury i>. Blount 519 Shrieve v. Stokes 605 Shrimpton v. Laight 607 Shroder v. Brenneman 733 Shropsliire Union Railway Co. v. Ander- son 22 7, 452 Shuler v. Millspaps 1 2 0, 205 Shute v. Robins 77 v. Taylor 2 03 Shuttlewort'h v. Le Fleming 652 Sibley v. Aldrich 532 v. Fisher 331,338 v. Lumbert '434 Siboni v. Kirkman 119, 120, 122 Sibree v. Tripp 288, 445 Sibthorp v. Brunei 251 Sidaway v. Hay 319 Sides v. Hilleary 393 Sidwell v. Evans 132 v. Mason 433 Sieveking v. Dutton 279, 460 Sievers v. Boswell 329 Sigerson v. Mathews 79 Siggers v. Lewis 470 Sigourney v. Drury 434 Sikes v. Wild 254, 522 Silk v. Humfreys 52, 600, 693 Sillem 17. Thornton 170, 171, 414 Sillowav v. Neptune Ins. Co. 163 Silt v. Martindale 29 Silvia v. Ely 131 Sim v. Edmands 66, 308 Simar v. Canaday 519 Simian v. Miller 19 Simmonds v. Parminter 85 v. Tavlor 363 Simmons v. Heseltine 253, 254, 473, 475 v. Holster 538 v. Knight 314 v. Lillystone 2, 180, 582 v. Millingen 708 v. New Bedford &c. Stage Co. 566 v. Siggers 26 v. Swift 28 v. Tavlor 70 r. Wood 35,91,215 Simon v. Lloyd 34S, 349, 350 Simond v. Braddon 257, 262 Simonds v. Hodgson 169 Simons v. Great Northern Railway Co. 357 v. Great Western Railway Co. 96, 357, 358, 487 v. Patchett 45, 46 v. S locum 317 Simpson v. Accidental Death Ins. Co. 176 lxviii TABLE OF CASES. Simpson v. Dismore 48 r. Egginton 444 r. Fogo 420 p. Hartopp 51 1 v. Lamb 307, 463 v. Lewthwaite 737 v. Mauley 398 p. Nicholls 461 v. Penton 137 v. Ready 245, 246 v. Robinson 662 v. Rolfe 48 v. Savage 584, 593 v. Staekhause 331 Sims v. Brutton 434 v. Chaplin 639 v. Hutchins 30 v. Willing 32 Simson v. Ingham 445 Sinclair v. Baggaley 294, 444 v. Bowles 264 v. Eldred 553 v. Hiilv 520 v. Hervey 460 v. Jackson 45 >-. Maritime Ins. Co. 176 v. Pearson 47 Singleton v. Bolton 609 v. Williamson 516, 647, 648, 685 Siordet v. Kuczvnski 330 in v. Cleveland &c. R. R. 103 Sistermans v. Field 341 Sive wright r. Archibald 28 Six Carpenters, The, 503, 647, 673 Sizer v. Syracuse, Bingh. & N. Y. R. R. 569 Skeate v. Beale 278, 282 v. Hale 370 Skelton v. Braithwaite 78 v. Deering 298 v. Halstead 75 r. London & North Western Railway Co. 566, 576 V. Mott 54, 55 Skiggs, In re 71 Skilhtt r. Fletcher 92 Skinner, In re 324 - I hapman 518 v. Hall 102 v. London & Brighton Railway Co. 565 Skipp v. Eastern Counties Railway Co. 569 738 Skull v. Glenister Slack v. Sharp Ut'a case v. Ilalsted v. Hawley Slater v. Baker v. Haines v. Hawes v. LawBon '■. Sunderland, Mavor of, : r. Phillips Sleigh '• Sleigh Slim o, Crouch v. Greal Northern Ry. Co. Slipper ". sii. Mundy 485 v. Neale 218, 219, 394 v. Newby 432 v. N. H. & N. R. R. Co. 488 v. New Haven &c. R. R. 103 v. Nicholls 176, 381, 421 v. Nicholson 313 v. O'Connor 572 v. Old Colony & Newport R. R. Co. 576, 578 v. Page 447 v. Panner 255 v. Parker 663 v. Parsons 275,281,475 v. Peat 152,186,196 v. Pritchard 675 v. Readfield 370 v. Reynolds 163, 169, 410 v. Richardson 661 v. Rockwell 332 v. Royston 718, 738 v. Say ward 151 W.Scott 162,218,219,286,443,661, 678 v. Sherman 205 v. Shirley 704, 707 v. Sieveking 1 1 8 v. Smith 328 v. Spooner 549 v. State 611 v. Steele 603 v. Stewart 181, 182 t>. Surman 239 v. Tanner 475 Smith v. Tateham 385 v. Taylor 546 v. Telt 618 v. Thakerah 605 v. Thompson 212,439 v. Thorne 202, 433 v. Tracy 49 v. Trowsdale 66 v. Veale 443 v. Voss 600 v. Walton 686 v. White 477 v. Winter 283, 347, 456 v. Woodfine 206 v. Wooding 183 v. Wright 513 Smithe v. Roche 404 Smithev v. Edmondson 89 Smock 'v. Dude 59, 484 Smout v. Ilbery 45 Smurthwaite v. Wilkins 97 Smyth v. Anderson 281 v. Holmes 131 Snead v. Watkins 533, 654, 729 Sneider v. Geiss 532 Suell v. Finch 504 v. Snow 543 Snelling v. Huntingfield, Lord, 211, 213 Snodgrass v. Gavit 309 Snodin v. Boyce 325 Snow v. Allen 688 v. Housatonic R. R. Co. 569, 570 v. Parsons 625, 628 Snyder v. Fulton 538 v. Wolfley 332 Sohier v. Loring 399 Solarte v. Palmer 334 Solly v. Hinde 343 v. Neish 283 v. Weiss 39 Soloman v. Lawson 541 Solomon v. Graham 454 v. Philadelphia Steamboat &c. Co. 107 v. Vintners Company 605, 606 Solomonson v. Parker 18 Solvency Mutual Guarantee Society v. Freeman 373 Solvency Mutual Guarantee Society v. York 138, 159, 176 Somers v. Holt 272 Somes v. British Empire Shipping Co. 98, 730 Sommerville v. Hawkins 659 Soper v. Curtis 19 Sorsbie v. Park 268 Soulden v. Van Rensselaer 434 Soule f. Bonney 370 v. N. Y. & N. H. R. R. 514 Souter v. Drake 252, 253 South v. Denniston 559 !>. White 485 Southall v. Keddy 59 v. Bigg 345 Southampton Docks Co. v. Richards 225, 227 Southampton & Itchin Floating Bridge Co. v. Local Board of Health of South- ampton 10, 572, 585 Soutliard v. Rexford 206 Ixx TABLE OF CASES. Sutithcombe v. Merriman 41 J B thcote r. Stanley 574, 582 South Easto in Railway Co. v. Hibble- white ' 452 South Eastern Railway Co. v. Wartou 26/, 381, 382 Southee v. Denny : '• i '' , Southern Express Co. v. Caperton 94, 96, 357 p.Crook 96,357 v. McVeigh 99,355 r. Newby 99 r. Shea 566 o. Thornton 566 South Ireland Collier Co. v. Waddle 453 South Metrop- Cemetery Co. v. Eden 606, 632, 673 South Shields Waterworks Co. v. Cook- Bon " 34 South Staffordshire Railway Co. v. Burn- 227 South Staffordshire Railway Co. v. Smith 274 South Wales Railway Co. v. Redmoud 100, 453 South Yorkshire Railway Co. v. Great Northern Railway Co. 248, 453 Soward v. Leggatt 186 v. Palmer 350 Sowerby v. Colman 644 v. Wadsworth 391 Sowtei r. Duuston 16 Spaids v. Barrett 553, 555 Spargo v. Brown 506 Spark o. Heslop 46, 151, 152, 153, 154 Sparkes v. Marshall 159 Sparling v. Heddon 546 Sparrow v. Paria 203, 204 Spaulding v. Millard 90 - k v. Phillips 438, 443, 446, 449, 725 S podding v. Nevell 45, 46 Speight v. Oliviera 558 Spence v. Chadwick 111, 186 S i ncer's ease 252 Spencer v. Dawson 635, 652 v. Handley 393 v. Hardley 520 v. Harvey 80 Spencer, Lord, v. Swannell 287 Sp' ii'jl' r v. Davy 551 Bpicera v. Harvey 27 Spier r. Lambdin 134 ea '■■ I'arker 245 Spill. -r v. Westlake 344 Spilebury v. Clough 586, 588, 678 v. Micklethwaite 694 Bpindlei v. Grellett 222, 225, 334 Spirett v. Willows 132 tzer v. Chaffers 323, 325 Spofford v. Harlow 567, 570 Bpooner v. Brewster 615 >■■ Keeler t 538 Barrow 206. 208, 209, 212,438 Bpraf : ' II:miiiiond 405 Bpratl - Ilobhouse 31 adbury v. Chapin 460 Spring, The, 602 BpringiBeld v. Harris 625 Bprowle v- Legge 85, 86 Bprye v. Porter 54, 436 Spnrlack v. Union Bank 79 Spurr v. Cass 216 Spyer, ex parte, in re Josephs 323 Squier v. Hunt 240 Squire v. New York Central R. E. Co. 97 Stackhouse v. O'Hara 59 Stackwood v. Dunn 464 Stacy v. Foss 30 v. Kemp 344 Stafford v. Clarke 421, 449 Staffordshire Bank v. Emmott 324 Stagg v. Elliott 333 v. Green ' 120 Staight v. Burn 480 Stainbank v. Fenning 158, 168, 410 v. Shepard 158, 168 Staines v. Shore 518 Staley v. Jameson 607 Stamford v. Dunbar 740 Stamp v. Sweetland 675 Stancliffe v. Palmeter 552, 556 Standen v. Christmas 182, 188, 198 Standif'er v. Davis 251 Standish v. Eoss 29 Stanger v. Miller 324 Staniford v. Sinclair 687 Stanley v. Hayes 201 v. Hendricks 137 v. Towgood 186 Stannard v. Harper 547 v. Lock 249 v. Ullithorne 61 Stante v. Prickett 612 Stanton v. Collier 8, 54, 69, 320 v. Eager 109 v. Haverhill Bridge Co. 495 v. Styles 465 Staple ». Spring 580 Staples v. Holdsworth 319 Stapleton v. Noel 449 Stapley v. London, Brighton & South Coast Ry. Co. 576 v. London & North Western Ky. Co. 566 Starbuck v. Murray 420 v. New Eng. Mar. Ins. Co. 412 Stark, Ee 324 v. Chitwood 549 Starke v. Cheeseman 86 Starling v. Cozens 611 Starr Glass Co. v. Morey 259 Startup v. Cortazzi 235 v. Macdonald 471 State v. Cherry 611 v. Clark 408 v. Crow 61 1 v. Davis 611 v. Epperson 611 v. Hampton 611 v. Malcolm 61 1 v. Manchester & Lawrence E. E. 492, 514, 567, 570 v. Matthews 531 v. Mooney 611 v. Morgan 611 v. Myerfield 611 v. Mvers 611 v. Railway 492, 514 v. Shepard 611 v. Sims 611 TABLE OF CASES. lxxi State Bank v. Bell 60 Stead v. Anderson 677, 678, 679, 680 v. Carey 19,679 v. Dawber 458 t;. Foyer 290 v. Williams 678, 679 Steadman u. Duhamel 85 v. Hockley 729 Steinman v. Magnus Steinson v. Hall Steamboat Charlotte v. Hammond 348 Steam Navigation Co. v. Guillou 670 Stearn v. Mills 384 Stearns v. Barrett 135 v. Hall 458 Stears v. South Essex Gas &c. Co. 372, 379, 452 Steavenson v. Berwick, Corporation of, 449 Stebbins v. Peck 461 Stedman v. Martinuant 317 v. Smith 218,617 Steed v. Henley 48 Steel v. Matthews 434 v. Smith 245, 561 Steele v. Burkhardt 570, 575 v. Haddock 373, 375 v. Harmer 337, 348 Steer v. Crowley 473 Stein v. Burden 625 v. Yglesais 75, 340 Steinback v. Rhinelander 160 364 373 Stephens v. Badcock 29 v. Chappell 260 ». De Medina 227 v. Graham 331 v. Lowndes 407 v. Lynn 182 v. Myers 611 v. Orman 520 v. Pell 140 v. Underwood 341 Stephenson v. Hart 107, 487 v. Primrose 80 Stern v. Sevastopulo 662 Sterry v. Foreman 543, 548 Stetson v. Faxon 580 v. Mass. Mut. Fire Ins. Co. 159 v. Patten 45 Stevens o. Adams 57 v. Austen 254 t7. Fassett 668 v. Gourley 21 8, 403 v. Jeacock 518 v. Midland Ry. Co. 502, 552, 555 v. Ufford 459 v. Underwood 370 v. Walker 483 v. Wildy 499 Stevenson v. Newnham 52, 505, 520 v. Snow 164 Steward v. Dunn 317 v. Gromett 552, 556 Stewart v. Aberdein 293 337, 412, 444 v. Canty 228 v. Collins 325 v. Eden 79 v. London & North Western Ry. Co. 358, 493 v. McKean 139, 399 V. Nicholson 65 Stewart v. Preston 299 v. Steele 411 v. Stewart 131 v. United States Ins. Co. 463 v. Wells 231 Stickney v. Maidstone 567 Stiles v. White 519, 652 Still v. Hall 259 Stimpson v. Sprague 57 Stindt v. Roberts 118 Stin ton v. Richardson 183 Strobart v. Dryden 299 Stockdale v. Dunlop 158, 169, 410 v. Hansard 660 Stocker v. Rodgers 586 v. Warner 586 Stocking v. Sage 151 Stockley v. Clement 545 Stockport Waterworks v. Potter 584, 627, 628, 676 Stocks v. Booth 590 Stockton v. Frey 288, 565 Stockwell v. Campbell 130 v. Hunter 186 Stoddert v. Newman 181, 182 Stokes v. City Off. Co. 481 v. Cox 170 , 171,414 t\ Trumper 57 v. White 555 Stokoe v. Singers 480 , 482, 625 Stone v. Augusta 626 v. Britton 379 v. Compton 346, 393 v. Crocker 551 v. Denney 518, 519 t\ Dennison 407 v. Hooker 152 v. Jackson 573, 581 v. Jellicoe 324 v. Rawlinson 83 v. Rogers 27 v. Swift 668 Stonebreaker v. Stonebreaker 608 Stonehouse v. Elliott 703 Stoolfoos v. Jenkins 406 Storm v. Stirling 221 StoiT v. Crowley 107 v. Lee 401 v. Scott 27 Story v. Finuis 449, 682 v. Holcombe 500 v. Odin 480, 481 v. Richardson 478, 607 Stothert v. Goodfellow 92 Stouffer v. Latshaw 370 Stoughton v. Kilmorey, Lord, 341 Stout v. City Fire Ins. Co. 159 Stow v. Bloxam 309 Stowe v. Hey wood 560 J7. Thomas 500 Stracey v. Bank of England 131, 486 Strachan v. Thomas 435, 666 Straker v. Graham 351 Strange v. Fooks 374, 377 Stranks v. St. John 200 Stratton v. New York & New Haven R. R. 102 Straus v. Young 551, 668 Strauss v. Francis 59, 483 Stray v. Russell 223 lxxii TABLE OF CASES. Street v. Augusta Ins. Co. . Blay 162 258, 259 Strettuii, In re, 56 r. Bosnack 147, 368 Strirk o. De Mattos 323, 324 Strong r. Doyle c. Ellsworth 130 379 r. Foster 347 v. Harvey 159 v. Manuf. Ius. Co. 158 r. Perkins 120 thex r. Ban 655 .1 v. Dandridge 384 van v. Knowlea 605 Smut v. Smith 28 Stuart v. Morton 606 Stubbs v. Lainson 596, 692 V. Parsons 405 Stubley v. Loudon & North Western Railway Co. 565, 566, 576 Stucley v. Baily 261 Stadwell v. Sbafter 406 Stultz v. Heneage 471 Stomps v. Kelly 562 Starch v. Clarke 507 Sturdivant v. Smith 183 Sturgeon p. Wingtield 202 Si nrgess v. Bissell 108 Sturui> v. Darrell 434, 435 Sturtevant v. Ford 340 Styles v. Cardiff Steam Navig ation Co. 561, 562, 563 Submarine Telegraph Co. v. Dickson 494 Suckling v. Wilson 22, 454 Sullivan v. Reading It. It. Co. 565 v. Stradling 687 Summers v. Ball 354 Sumner v. Ferryman 370 v. Jones 461 Sumwalt v. Ridgely 339 Sonbolf v. Alford 533, 729 Surfling v. Ovenden 675 Surton v. Gilliam 32 Sussex Bank v. Baldwin 79 Sutcliffe v. Booth 626 v. Brooke 63, 65 v. M'Dowell 115 Sutherland v. Pratt 159, 164, 275, 278,367, 410 Sutton v. Bank of England v. Craine v. Great Western Ity. Co. ?■. Huffman v. Johnstone v. Kettell v. Page v. South Eastern Ity. Co. j;. Tatham v. Temple 486 124 489 558 556 109 447 489 247 47, 183, 424, 427 Swain v. Seumens 458 Swan v. Nesmith 46 v. North British Australian Co. 564 v. Saddlemire 498 543, 659 481 526 43 542 125 180, 425 v. Tappan inborongn v. Coventry '.vaim v. Phillips ~ 'anston v. Garrick . irtzel v. Dey s •' ti f '- v '"' ' )ltt ' c an v. Ambler Sweeney v. Old Colony & R. R. Sweet t>. Benning v. Cutts v. Lee Sweetapple v. Jesse Sweeting v. Pearce Sweighart v. Berks Sweitzer v. Hummel Swete v. Fairlie Swett v. Shumway Swift v. Bennett v. Dickerman Swinfen v. Bacon v. Chelmsford, Lord, v. Swinfen Swinford v. Burn Swire v. Leech Sybray v. White Sykes v. Dixon v. Sykes 121 Symes v. Goodfellow Symington v. McLin Symmes v. Frazier Symmons v. Knox Symonds v. George v. Pain v. Hearson Syms v. Chaplin 104 Newport 574 500, 643 626 30, 635 545 157,412 268 251 417 257 406 540 194 57,59 58, 59, 483 51, 308 485, 504, 645 564, 579, 582 560 , 607, 608, 609 282, 401, 460 42 233 352, 463, 464 324 491 658 , 355, 356, 639 T. P. & W. R. R. Co. v. Merriman 97 Tabart v. Tipper 661 Tabor v. Edwards 323, 325 Tabram v. Warren 304 Taffe Vale Railway Co. v. Giles 99 Taft v. Morse 125 Talbot v. La Roche 587, 588, 589 v. Whipple 426 Talbutt v. Clarke 544 Tallis v. Tallis 25, 92, 134, 135, 136 Tamvaco v. Sampson 97 Tancred v. Allgood 594, 595, 690, 725 v. Christy 1 83 v. Leyland 505 Tanner v. European Bank 1 26 v. Moore 131, 141 v. Scovel 727 v. Smart 433 v. South Wales Ry. Co. 582 Tanno v. Morris 534 Tanvaco v. Lucas 46 Tapley v. Wainwright 408, 641, 642, 740 Tapling v. Florence 657 v. Jones 480, 637 Tappan v. Morseman 379 v. Powers 498 Tarbell v. Gray 230 Tarbuck v. Bispham 436 Tarleton v. Atkinson 421 Tamer v. Walker 233 Tarrabochia v. Hickio 111,113,362 Tarrant v. Baker 67C v. Webb 569, 579 Tasker v. Shepherd 209, 217 Tassell v. Coopei 70 Tate v. Hitchins 306 TABLE OF CASES. Tatlock v. Harris 292 »• Smith 364 Tattan v. Great Western Railway Co. 355 Tattersall v. Parkinson 448, 450 Tatton v. Hammersley 7.38 v. Wade 52 ' Taunton Bank v. Richardson 79 Taunton Copper Co. v. Merchants Ins. Co. ^~ Taverner v. Little 670 Taylerson v. Peters 685, 68b, 688 Taylor v. Ashton 519 » 525 w. Barron 4-0 v. Bennett bi8 9. Best 299 v. Blacklow 59,61,484 17. Blanchard 134 ». Bullen 256 v. Burgess 374,3/6 v. Caldwell 18 j> v. Carpenter 608 v. Church 547 v. Clay 111,361,362 v. Clow „ 31 2 v. Cole 439, 617, 64/ v. Cottrell 3/0 v. Devey 7-0 r. Dewar lb * v. Evans 4 °5 w. Frost 518 v. Green 5 ~- v. Hawkins 658, 659, 660 17. Hillary 289, 369, 397, 398, 457 17. Hodgson 305, 307 v. Holman 386 17. Johnson 399 v. Knox 32 v. Laird 208 v. Longworth 251 v. Monnot 532 v. Moran 540,541,542 17. Nesfield 525, 675 17. Pearse 327 17. Richardson 596 17. Rolfe 610 17. Rowan 614 v. Shelton 45 17. Shum 42 9 17. Sip 115 17. Stendall 536, 689 17. Stray 29 17. Vergette 354 v. Waters 419 17. Weld 393 17. Welsford 317 17. Whitehead 738 17. Willans 551 Taymon v. Mitchell 257, 259 Teague 17. Morse 26 Tear 17. Freebody 620 Tebbetts v. Dowd 80 v. Pickering 36 Tebbut ». Holt 553 17. Selby 497, 513 Teed v. Johnson 373, 376 Tempany v. Burnand 186 v. Hakewill 147, 149 Tempest v. Kilner 227, 228 v. Silver 246 Temple v. Pullen 317 Tempson u. Knowles Tenant v. Field Teuny u. Life Ins. Co Terrell u. Higgs Terry 17. Bissell 17. Hutchinson 17. Parker Tetley 17. Easton i7. Taylor 17. Wanless Tew 17. Jones Thacker 17. Wilson lxxiii 131 511, 689 173 374 30 558, 559 79, 346 587, 588 323, 325 322, 456 181, 182 382 Thames Haven Dock Company v. Rose Iron Works & Shipbuilding Co. 452 Thames Iron Works &c. Co. 17. Patent Derrick Co. 177, 730 Thames Iron Works &c. Co. v. Royal Mail Steam Packet Co. 265, 372, 449, 457 Thames Steam Dock Co. v. Brymer 251 Tharpe v. Stallwood 120, 515, 615 Thatcher w. England 233 Thayer v. Boston 502, 580 v. Brackett 470 17. King 332 Theobold i;. Railway Passenger Assur- ance Co. 176 Therman 17. Abell 50 Thetford, Mayor of, v. Tyler 189 Thibault v. Gibson 1 85 Thickstun v. Howard 532, 533 Thiedman v. Goldschmidt 345 Thimbleby v. Barron 363, 369, 456 Thing w. Libbey 406 Thinn, Re 324 Thorn 17. Bigland 92, 519 Thomas 17. Bradbury 429 17. Brown 724 v. Cadwallader I 85 v. Charnock 309 v. Churton 660 17. Cook 151, 153 17. Fenton 337, 338 17. Frederics 52 17. Harries 685 17. Hawkes 283, 294 17. Hearce 595 17. Hewes 73 17. Hopkins 317 17. Hudson 599, 650 17. Hunt 586, 588 17. Jackson 549 17. Lack 399 17. Morgan 561, 562, 563, 652, 669 17. Packer 189 17. Pemberton 189 17. Phillips 614 v. Rhymney Ry. Co. 566 17. Thomas 31, 137, 138, 583, 630, 734 v. Welch 586, 587, 680 17. Williams 138, 140, 143, 208 17. Winchester 257, 520 17. Woodruff 209 Thomason v. Frere 9 Thompson, In re 50 17. Alger 235 17. American Tontine L. & S. Ins. Co. 174 v. Babcock 31 17. Bertrand 260 lxxiv Thompson v. Botts v. Clubley v. Dicas v. Dominy v. Eastwood v. Fargo v. Gibson p. Gillespy v. Gould v. Hakewill v. Harding v. Hopper v. Jackson V. Kelly v. Knight v. Knowles v. Lack v. Lacy v. Mashiter v. Moore v. Morgan TABLE OF CASES. 259 339 2 109 638 94 481, 482, 558, 610 362 30, 256 26S 719 159, 162, 167,412 22, 450, 683 62 322 24 456 531, 729 485, 504, 688 393 74 v. North Eastern Ry. Co. 495, 570, 600 v. Nye 545 v. Parish 419 v. Percival 289, 349 v. Redman 463 v. Reynolds 164 t>. Ross 558, 559, 560 v. Shephard 682 V. Staats 49 v. Webster 132 v. Whitmore 162 v. Wood 506 Thomson v. Hopper 411 v. Hornby 2 v. Pinche'll 148 Thorn v. Knapp 206 Thome v. Boast 446 v. Jenkins 351 v. Smith 337, 445 . Tilbury 312,375,711,725 Thornett v. Haines Thornton v. Appleton v. lllingworth v. Jenyna v. Whitehead r. Wynn Thorogood v. Bryan >-. Robinson Thorpe v. Angles o. foombe v. Si. ill wood Tbashei v. Tuttle ThrelfaU v. Fanshawe Thruatout v. ('rafter Thurgood v. Richardson Thnrlow v. : Caler 538 Van Alden v. Vanderpool 42 Van Ankin v. Westfall 539 Van Aradale v. Howard 393 Vance v. Erie R. R. Co. 502 v. Lukenbill 288 v. Vance 32 Vandenheuvcl v. Storrs 181, 182 Vandenwall v. Tyrrell 87 Vanderberg v. Spooner 235, 281 Vanderdomkt v. Thellusson 222, 225, 334 Vanderplank v. Miller 600 Vandewalker v. Osnier 520 Van Hoesen v. Coventry 625 Van Hook v. Pendleton 500 Van Horn v. Freeman 559, 560 Van Leaven r. Lyke 561 Vann, In re 56 Van Orden v. Van Orden 124 Vanqnelin v. Bonard 178, 419, 420 Vausandau v. Brown 55 v. Burt 89 v. Nash 2.30 v. Turner 710 Van S.-mtvoord v. St. John 100 Vmsittart p. Vansittart 147 Van St.,rch r. Griffin 437 Van Toll v. South Eastern Ry. Co. 69, 106, 359 Vanwyek v. Guthrie 663 Varden v. Parker 40 Varley v. Manton 265 Vamey '•. Hickman 395 Varniun v. Martin 57 ••i , 1 >:ivis 644 v. Glen 114 V. Matthews 29, 31 v. Menlove 578 .-. Tail' ValeRy. Co. 578 1 . Watt 620 Vavasour v. Ormrod 185 V< aaey v. Doten 520 Veazie Bank v. Winn 115 Veitch v. Rnssell Velasquez, The, Venables v. East Indian Co. Venefra v. Johnson Vennall v. Garner Vennel v. Garner Venning v. Leckie Verbert v. De Keyser Vere v. Goldsborough Vernede v. Weber Vernon, The, Vernon v. Shipton Verrell v. Robinson Verry v. McHenry Vesey v. Mantell Viall v. Carpenter Vicars v. Wilcocks Vice v. Anson Vicksburg &c. R. R. Co. v. Ragsdale Victors v. Davis Vidi v. Smith Viele v. Gray v. Hoag Vilas v. Downer Villers v. Mousley Vincent v. Leland Vine v. Saunders Vines v. Arnold v. Serell Vinton v. Schwab Viranny v. Warne 48 603 120 556 600 670 215 19 20,21 262 603 724 620 319 353 741 543 634 103 3 t 587 538 399 57 540 256, 259 528 421 543 561, 565 51 Virginia &c. R. R. Co. v. Sanger 566 Vivian v. Jenkin 701, 712, 719 Vlierboom v. Chapman 97 Vonhollen v. Knowles 473 Von Lindenau v. Desborough 416 Vooght v. Winch 380, 381, 630 Voorhees v. Earl 652 Voorhies v. McGinnis 130 Vorley v. Barrett 372, 373, 375, 376 Vose v. Lancashire & Yorkshire Ry. Co. 568 v. Philbrook 463 Vowles v. Miller 517, 536 Voyce v. Voyce 718 Vroman v. American Merchants' Union Express 103 Vrooman v. Lawyer 561 Vyse v. Wakefield 92, 173 W. Wachter v. Quenzer 663 Waddilove v. Barnett 424, 687 Wade v. Beasley 35 v. Dowling 64, 66 v. Haycock 264 v. Simeon 131, 280, 392 v. Tatton 519 v. Walden 551 v. Wheeler 99 v. Witherington 331 Wadham v. Marlowe 181 Wadleigh v. Janvrin 130 Wadsworth v. Marshall 55 v. Tillotson 625 Waffle v. New York Central R. R. 626 Wagaman i\ Byers 538, 539 Wagner v. Imbrie 454 v. White 183 TABLE OF CASES. lxxvii Wagstaff v. Sharpe Walil v. Holt Wain v. Bailey Wainman v. Kynman Wainwiight v. Bland Waite v. Gale v. Jones 48 102 346,470,471 434 174 124, 383 402 v. North Eastern Ry. Co. 515, 571, 576, 670 Wake v. Harrop 295, 373, 375 Wakefield v. Lithgow 444 I?. Newbon 29, 370, 731 Wakeman v. Lindsey 507 v. Robinson 564,611,613,696 Wakley v. Froggatt 372 Waland v. Elkins 567 Walbank v. Quarterman 244 Walbroke v. Griffith 533 Walcott v. Goulding 88 v. Swampscott 503 Waldo v. Belcher 234 Wale v. Westminster Hotel Co. 482 Walen v. Kirby 288, 445 Walford v. Anthony 609 v. Depienne 149 v. Fleetwood 274 Walker v. Andrews 444 v. Barnes 470 v. Bartlett 155 v. Blake 239 v. Boiling 570 v. Brogden 539, 661, 663, 665 v. Congreve 585 v. Davis 407 v. Goe 495, 572 v. Golling 272 v. Hatton 196 v. Hoisington 259, 260 v. Hunter 674, 692, 709 v. Jackson 107, 490, 517, 635, 640 v. McCulloch 455 v. Maitland 162 v. Mellor 282 v. Moore 254 v. Neville 324, 363, 456 v. Norton 137 v. Penniman 137 v. Rawson 449 v. Rumbal 507 v. Sargeant 57 v. Smith 42 v. Wills 32 v. Witter 176, 420 v. York & North Midland Ry. Co. 488 Wallace v. Agry 348 v. Kelsall 289, 290, 291 v. Morse 407 v. Smith 675 v. Vigus 103 v. Woodgate 729 Waller v. Cralle 370 i;. Lacey 445 v. South Eastern Ry. Co. 568, 569 Wallerstein v. Columbia Ins. Co. 163 Walley v. McConnell 710 Walling v. Kinnard 251 Wallinger v. Gurney 691 Wallington v. Dale 586 Wallis i;. Broadbent 188, 280 Wallis v. Harrison 272 v. Warren 206, 207 v. Wassen 209 Walls v. Atcheson 426 Walmsley v. Cooper 456 17. Lindenberger 407 17. Matthews 280 v. Milne 130, 536 Walstab v. Spottiswoode 30 Walter v. Adcock 322, 323, 325 v. Cubley 338 v. Haynes 444 v. He iron 571 77. James 444 v. Rumbal 507, 508 v. Sample 668 Walters v. Munroe 80 17. Pfeil 605 v. Smith 131, 289, 445 Walton v. Bateman 678 17. Crowley 520, 607 v. Dickerson 57 v. Kersop 592 • v. Lavater 218, 586, 587, 588, 589 v. Mascatl 73 Wansborough v. Maton 656 Warburg v. Tucker 214, 317, 319 Warburton v. Great Western Ry. Co. 569 17. Storr 52 Ward v. Andrews 536 v. Ball 181,182 v. Bell 5 v. Bvrne 92, 135 v. Clarke 1 1 v. County of Hartford 502 17. Greenland 45 17. Johnson 455, 456 v. Lloyd 404 v. Lowndes 208, 233, 234, 557 v. Lumley 184 v. Motter 457 v. Neal 480 17. New York &c. R. R. Co. 103 r. Robins 627, 641, 726, 734, 735, 737 17. Shew 688 u. South Eastern Ry. Co. 557 v. Suffield 405 v. Vanderbilt 101, 491 y. Ventom 510 v. Weeks 543, 548 Wardell v. Usher 536 Warden v. Jones 207 v. Marshall 27 Warder v. Tucker 79 Ware v. Gay 565 Waring, Ex parte 70 v. Mason 259 17. Monroe 36 v. Smyth 298 Warley v. Harrison 20 Warlow v. Harrison 63, 233 Warner v. Erie R. R. Co. 569 - v. Haines 403 v. Humfreys 122, 123 17. Willington 218 Warre v. Calvert 281, 286, 354, 405 Warren v. Buckminster 234, 237 v. Ferdinand 35, 181 v. Hitchins 186 v. Lay ton 381 lxxviii TABLE OF CASES. Warren v. McKay v. Milliken r. Peabody p. Saxby f. Skinner r. Warren Warrington v. Early Warwick v. Foulkes v. Nairne v. Noakes r. Richardson 465 234 111 49 288 661 331, 338 704, 705, 707 344 444 353 302 260 101, 107 39, 477 424 124 495, 580 Warwick & Worcester Railway Co. In re Washburn r. Cuddihy Washington, Mary, The, Washington v. Eamea v. Harthan Wasney v. Earmshaw Water Co. v. Ware Waterford, Wrexford, Wicklow & Dub- lin Railway Co. v. 1'idcock 227 Waterhoase v. Keen 248 t». Skinner 239 Waters v. Merchants' Louisville Ins. Co. 162 v. Monarch Insurance Co. 158, 171, 478, 624 v. Thanet, Earl of, 71, 202, 434, 435 Watkin v. Hall 538, 539, 541, 549 v. Hill 664 Watkins v. Great Northern Ry. Co. 738 v. Hodges 459 v. Lee 553, 668 v. Morgan 34, 215 Watkinson v. Ingleshy 289, 445 Wailing v. Oastler 570, 571, 575 Watriss v. Pierce 399 son v. Carroll 599 v. Charlemont, Earl of, 30 v. Christie 697 v. Denton 275, 475 v. Bensell 463 v. Ins. Co. of N. Amer. 163 v. Jacobs 137 v. King 181 v. Mid Wales Ry. Co. 374 r. Moore 661 v. Pilling 3 v. Randal] 131 r. Reynolds 665 v. Spratley 228 v. Swann 164 v. Waltham 723 r. Whitmore 550 Watte v. Hawkins 516 v. Porter 61 Salter 30 v. Shuttleworth 374, 377 V. Thomas 646 Wau^h v. BnBsell 298 o. Carver 216 Way v. < 'iitting 433 v. Hearne 393 ' • 1 1 317 Waj land 0. Moseley 109 Wayman v. Bond 74, 75 221 Wearing v. Ellis 55 Weatherley v. Rose 480 Weatherstohe v. Hawkins 660 Weaver v. Bachert 206 v. Bush 700, 702 v. Lloyd 663 Webb v. Beavan 720 y. Bird 479 v. Fairmaner 28 v. Hill 553 v. Hunt 480 v. Hurrell 303, 304 v. James 89, 353, 354 v. Lawrence 4 v. Page 263, 275, 355, 635, 637, 640 v. Plummer 189 v. Powers 500 v. Spicer 339 v. Stone 458 v. Tripp 724 Webber v. Great Western Ry. Co. 100, 101 v. Nicholas 553 K. Richards 609, 610 v. Sparks 673, 738, 743 Webster v. Emerv 212 v. Enfield 208, 458 v. Hodgskins 262, 518 v. Hudson River R. R. Co. 572 v. Earned 45 v. Spencer 120, 122 v. Watts 700, 701, 708 v. Webster 303 Weed v. Adams 295 Weeding v. Abithol 724 v. Aldrich 647, 673 Weedon v. Woodbridge 279, 280 Weekes v. Good 620 Weeks v. Argent 287, 319 v. Burton 518 v. Hasty 32 v. Robie 458 Weeton v. Woodcock 618 Wegener v. Smith 118 Wegersloffe v. Keene 86 Weightman v. Washington 495 Weimer v. Sloane 483 Weir v. Aberdeen 411 v. Allen 542, 543, 549 Weisenger v. Taylor 532 Weiss v. Whittemore 538, 539, 542, 543, 546 Welch v. Coulborn 331 v. Durand 612 v. Ireland 51, 88, 89 Welchman v. Sturges 120, 515 Welcome v. Upton 641 Weld v. Baxter 17,198,430 Welland Railway Co. v. Berrie 453 v. Blake 230, 284, 452 Welles v. Castles 183 Welling v. Judge 571 v. Leak 720 Wellington, The, 109 Wellington v. Brown 10 Wellock v. Constantine 613 Wells v. Abernethy 32 v. Calnan 186 v. Fydall 384 v. Girling 74, 364 v. Hacon 322, 323 v. Hopkins 343, 344 v. Hopwood 161 v. Moody 506 v. Ody 481, 482, 567, 616 631 TABLE OF CASES. lxxix Wells v. Padgett 206 v. Porter 476 v. Prince 526 v. Watling 497 v. Wells 408 Welsh v. Pittsburg &c. R. R. Co. 97 v. Rose 645 Welton v. Robinson 434 Wendell v. Baxter 574 v. Troy 572 Wenmun v. Ash 660 Wentworth v. Bullen 554 v. Cock 120, 123, 389 v. Day 233, 619 v. Outhwaite 725 Werner v. Humphreys 120 Wesson v. Washburn Iron Co. 580 West v. Baxendale 702, 704, 707 ?;. Blakeway 289, 431, 536, 656 v. Cunningham 257 v. Francis 501 v. Jackson 256 v. Nibbs 511, 673 v. Smith 545 Westall v. Sturges 8 Westcott v. Fargo 101 v. Nims 344 Western & Atlantic R. R. Co. v. McEl- wee 100 Western Bank v. Sherwood 90 Western Transportation Co. v. Downer 96, 97 Weston v. Beeman 551 v. Foster 290, 369 Westropp v. Solomon 29, 93, 151 Westwood v. Cowne 509 v. Secretary for India 309 Wetherell v. Julius 54 Wetmore v. Jennys 36 Whaley v. Laing 628 Whalley v. Pepper 553 v. Thompson 739 v. Williamson 714 Wharton v. Lewis 437 v. Mackenzie 409 Wheat v. Arnold 331 Wheatcroft v. Hickman 215 Wheatley v. Baugh 625, 626 v. Chrisman 625, 628 v. Golney 270 v. Lane 513 v. Patrick 574, 670 v. Williams 33, 318 Wheaton v. Peters 498 Wheeler v. Bavidge 111, 113, 114 v. Board 30 v. Branscombe 687 v. Brant 561, 562 v. Haynes 24 v. Home 294 v. Montefiore 716 v. Nesbitt 551 v. Russell 402 v. San Francisco &c. R. R. Co. 566 v. Senior 440 v. Stevenson 427 v. Wheeler 288 v. Whiting 613, 699, 700 v. Worcester 626 v. Wright 473 Wheelhouse v. Ladbrooke 88 Wheelock v. Freeman 298, 331 Wheelton v. Hardisty 373, 379, 392, 415, 416, 417, 524 Whelan v. Lynch 235 Whetstone v. Boneser 626 Whipple v. Manley 435, 471 v. Stevens 434 Whistler v. Forster ' 362 Whitaker v. Bond 402 v. Eastwick 256, 257 v. Edmunds 339 v. Wisby 391 White, Ex parte 46 v. Ansdell 353, 354, 405 v. Bass 482, 741 v. British Empire Mutual Life Assur. Co. 174 v. Carroll 660 v. Chapin 626 v. Corbett 92, 317 v. Crisp 582 v. Dingley 456 v. Feltham 1, 4 v. Garden 520 v. Gascoyne 271 v. Geroch 500 v. Gordon 392 v. Great Western Ry. Co. 96, 99, 357, 488 v. Haas 331 v. Hancock 90, 214 v. Hill 612 v. Humphrey 102 v. Hunter 392 v. Jordan 434 v. Leeson 741 v. Lincoln, Lady, 478 v. Madison 45 v. Morris 674, 691 v. Parkin 110 v. Phillips r >82 v. Phillipston 527 v. Reeves 188 v. Spettigue 724 v. Taylor 703 v. Teal 619,724 v. Wakley, In re, Newbury, In re 187 v. Wiltshire 714 v. Woodward 138 Whitefield v. Levy 5, 203 v. Longfellow 370 Whitehead v. Greetham 61 v. Harrison 728 v. Hughes 9 v. Izod 354 v. Keyes 598, 649 v. Lord 56 v. Porter 323 v. Tattersall 309 v. Taylor 686, 687 v. Walker 76, 86, 340 Whitehouse v. Apperley 124 v. Atkinson 620 v. Fellowes 495, 667 Whiteley v. Adams 659, 660, 661 Whitelock v. Hutchinson 497 Whitesides v. Russell 101 Whitfield v. Collingwood 386 lxxx TABLE OF CASES. Whit field v. Hodges 347 t;. Moojen 137 v. South Eastern Ry. Co. 502,546 v. Westbrook 551 Whitford v. Panama R. R. 514, 515 Whiting v. Cook 124 Whitley v. Loftus 49 Winding v. Dfsanges 17 Whiiloek v. Underwood 115 Whitmore v. Coates 235 v. Nicholls 25 v. Kobertson 716, 724 v. Smith 308 v. South Boston Iron Co. 257, 652 v. Wakerley 324 Whitnev v. Bigelow 434 o. Elmer 560 v. Slay ton 134 Whittaker v. Bank of England 638 v. Edmonds 339 v. Jackson 380 v. Lowe 324 r. Mason 279 Whittington v. Gladwin 546 Whitwell v. Harrison 165 r. Scheer 112 Whitworth v. Hall 551, 555 v. Mayor 222 v. Smith 506, 512, 645 Wickens v. Cox 18 v. Steel 4, 269 Wickham v. Harding 309 v. Hawker 722 v. Wickham 46 Wicks v. .Macnamara 37 Widrid v. Oyer 538 Wieler v. Schilizzi 257, 262 Wigens v. Cooke 61, 634 Wigfield v. Nicholson 323 Wiggetl a. Vox 568, 669 Wigginu. Bush 364 v. Coffin 551 r. Mercantile Ins. Co. 158 v. Suffolk Ins. Co. 160 v. Tudor 455 Wight v. Brown 174 Wigley r. A»hton 122, 124 Wigmore v. Jay 568 Wilborn v. Odell 542 Wflby v. Elston 538, 549 r. West Cornwall Ry. Co. 100 Wilcock v. Wridler 648 Wilcox '■• I lowland 370 -. I.wa Wesleyan University 519 205 374 615 455 253 Wild v. Harris V. llillas v. Bolt v. Williams Wilde o. Fort v. Walters V. Waters Wilder o. Holden v. Bpeei Wild era »• Stevens Wildea v. Dudlow Wfl ei '• Woodward W ilej '■• ' Irawfotd Willi. -ii r. Law Wilkes v. Caulk 130 618 668 503, 512, 615, 647 348 151 380 486 408 299 Wilkes v. Hungerford Market Co. 580, 582, 632 v. Perk 18 v. Smith 251 Wilkin v. Reed 478 Wilkins v. Boutcher 719 v. Earle 532 Wilkinson v. Bvers 153, 288, 289 v. Colley 194 v. Evans 235, 281 v. Fairrie 574 v. Gaston 208, 212 v. Grant 59 v. Haggarth 723 v. Hall 193 v. Howell 553 v. Hyde 161, 163 v. Johnson 299 v. Kirby 26, 651 v. Lindo 455, 456 v. Malin 24 v. Martin 39 v. Page 305 v. Parrott 562 v. Proud 722 v. Pund 642 v. Sharland 33 v. Whalley 723, 727 Willard v. Cambridge 580 v. Clark 298 v. Hammond 121 Willatts v. Kennedy 143 Willetts v. Paine 363 Williams, In re 316 v. African Steam Ship Co. 356, 360, 489, 640 v. Archer 622, 623 v. Bosanquet 196 v. Bridges 650 v. Bryant 4, 90, 286 v. Burgess 138 v. Burrill 200 V. Bvrne 208, 210, 212, 279, 439 v. Cadbury 321 v. Carpenter 444 v. Carwardine 233 v. Chambers 54, 55 v. Chandler 379, 380 v. Clarke 348 v. Clough 570, 579 v. Craig 31 v. Cranston 99 v. Dakin 203 v. Dixon 562 v. Duckett 417 v. East India Co. 360, 490 v. Evans 42, 62 v. Flight 463 v. Germaine 76, 87 v. Given 520 v. Glenister 701, 708 v. Great Western Ry. Co. 493, 567, 621 v. Griffith 433, 598 v. Groucott 582 v. Hay ward 198, 427, 430 v. Henshaw 216 v. Holdredge 539 v. Holland 560, 567, 574, 600 v. Jackson 379 TABLE OF CASES. Ivyyi Williams v. James 337, 737, 738 v. Jessey 624 v. Jones 176, 178, 288, 307, 645, 655 v. Lake 137 v. London Commercial Excli. Co. .93, 290 v. Matthews 79 v. Mayor 182 v. Moor 409 v. Morland 625, 628, 630 v. Mostyn 598 t7. New Eng. Mut. Fire Ins. Co. 414 v. Price 646, 696, 732 v. Protheroe 251 v. Reynolds 235, 236 v. Robinson 80 v.Rose 596,650,691,692,693 v. Sharwood 442 v. Shaw 37 v. Sills 286 v. Smith 126, 431, 434 v. Stiven 686 v. Stott 542 v. Taylor 551 v. Vanderbilt 101, 566 v. Vanmeter 668 v. Vines 52, 283 v. Waring 222, 334 v. Wilcox 518, 633, 742, 743 v. Wilson 66 Williamson v. Allison 518 v. Bissil 273 v. Dawes 148, 368 v. Freer 662 v. Henley 153 v. Innes 160 Willis v. Cooke 169 v. Darke 448 v. De Castro 363, 398, 399, 455, 457 v. Grand Trunk Ry. Co. 97 v. Hallett 319 v. Peckham ' 263 Willison v. Patteson 297 Willmott v. Harman 665 v. Harmer 664 Willoughby v. Backhouse 506 Wills v. Murray 227 v. Noycs 668 v. Nurse 150 v. Robinson 22 Wilmhurst v. Bowker 604 Wilmot v. Hurd 256 v. Smith 264 v. Williams 78 Wilson v. Bank of Victoria 133 v. Bathrupp 73 v. Bett 485 v. Bevan 153 v. Birkenhead, Liverpool & Chester Ry. Co. 226 v. Braddyll 456 v. Bradstocke 1 8 v. Bramhall 184 v. Brett 485 v. Burr 57 v. Butler 380 v. Castro 379 v. Charlestown 571 VOL. II. / Wilson v. Chesapeake & Ohio R. R. Co. 97 v. Coffin 57 v. Fitch 661 v. Gabriel 373 v. Green 374 v. Halifax, Mayor of, 674 v. Henderson * 299, 331 v. Hodges 454 v. Jamieson 331 v. Jones 158, 163, 169 v. Kemp 317 v. Kersop 592 v. Knubley 144 v. Lancashire &c. Ry. 103 v. Lewis 333 v. London &c. Navigation Co. 108 v. Mackreth 616 v. Martin 164, 168, 169 v. Merry 568, 569 v. Miers 94 v. New Bedford 626 v. Newport Dock Co. 226, 236 v. Nightingale 507 v. Rankin 413 v. Ray 364, 367 v. Robinson 662 v. Russ 57, 483 v. Storey 460 v. Townend 480 v. Tucker 61 v. Tumman 483 v. Vysar 330 v. Watson 14 v. Willes 624, 642, 722 v. Wilson 252, 283, 294 v. York, Newcastle & Berwick Ry. Co. 101 Wiltburger v. Randolph 32 Wilton v. Dunn 424 v. Royal Atlantic Mail Steam Navigation Co. 361, 494 Wiltshire v. Sims 42 Wimshurst-?;. Deeley 242 Winans v. Huston 456 Winch v. Conservators of the Thames 495 Windle v. Barker 110,362 Windover v. Smith 500 Wingate v. Waite 648 Winne v. Illinois Central R. R. 103 Winship v. Hudspeth 737, 739 v. Neale 619 Winslow v. Vermont &c. R. R. Co. 107 Winsmore v. Greenbank 482, 528, 560 Winsor v. Lombard 257, 258 Winstone v. Linn 50, 300 Winter v. Freeman 691 v. Trimmer 111,203 v. Williams 586 Winterborne v. Morgan 512 Winterbottom v. Derby, Lord, 580, 581 v. Ingham 182 v. Lees 21 v. Wright 524 Winterbourne v. Brookes 669, 673, 697 Wintle v. Freeman 692 Winton v. Cornish 186 v. Fort 30 v. Sherman 251 Wisdom v. Hodson 698, 700 Wise v. Great Western Ry. Co. 96, 488, 570 lxxxii TABLE OF CASES. Wise v. Metcalfe v. Wilson Wiseman p. Lyman Wishart v. Fowler Wlsslei v. Bershey Witherley r. Regent's Canal Co. --arsfield Withers v. Maclean v. North Kent Ry. Co. v. Parker Wittkowsky v. Wasson I'arebrother 143, Wolcott v. Mount Wolf v. Snmmera v. Western Union Tel. Co. Ife v. Beard p. Howes r. Myers Wolff v. Koppel Wollaston v. Hakewill 196, 382, Wollenweber v. Ketterlinus Wolverhampton New Waterworks v. Hawkesford Wolveridge v. Steward Womack v. Mc Quarry Womersley v. Dally 189, Wood v. Adam v. Benson v. Boosey 499, v. Brown v. Clarke v. Copper Miner's Co. v. Corcoran v. Day v. Dixie v. Dunn v. Dwarris 373, 379, v. Farr v. Lane v. Lavcock v. Leadbitter 627, 648, 657, v. Mauley v. Mytton v. Ostram Priestner Robbins Silleto Smith v. Tassell v. Waugh v. Wedgwood v. Wood Woodbury v. Robbins Woodgate v. Rnatchbull v. Ridout Woodger v. Great Western Ry. Co. iham v. Edwards Woodhouse v. Edwards v. Williams W.odhouse, in re, ex parte Morgan ing v. Oxley land v. Fear v. Fuller Woodman v. Chapman v. Eastman v. Gist v. Tufts Woodruff v. Woodruff Woods v. Berry v. Dean v. v. 188, 591 438 31 321 741 515 86 25 492, 566 126 565 214, 371 257 533 357 694 209 109 46 390, 429 79 Co. 226, 227 195, 537 186 198, 202 548 138 500, 501 541 504 371 137 186 132 303 415, 416 446 613 552 722, 734 657, 720 221 380 138 32 177 466 240 628 738 90 260 595 661 103 364 365 380 323 699, 701 29 649 149 79, 80 599, 693 580 611 57 79, 334 Woods v. De Mattos 324 v. Devin 99 v. Foote 323, 325 v. Furniss 596 v. Kirk 393 v. Pope 188 v. Schraeder 115 Woodward v. Dowsing 546 v. Harbin 333 v. Illinois Central R. R. Co. 101 v. Lander 660 v. Meredith 318 v. Mich. Southern & North- ern Lid. R. R. 514 v. Miles 288 v. Newhall 407 v. Thacher 652 Woolaston v. Hakewill 382 Woolever v. Knapp 31 Wooley v. Watling 183 Woolf v. Beard 670 v. Chakler 562 v. City Steam Boat Co. 12, 13 Woolley v. Clarke 120 Wootton v. Steffenoni 198 Worcester v. Eaton 370 v. Green 380 Worcester County Bank v. Dorchester & Milton Bank 341 Worgate v. Knatchbull 125 Worley v. Cincinnati, Hamilton & Day- ton R. R. 492 v. Harrison 73 Worms v. Storey 110, 114 Worner v. Biggs 647 Worrall v. Clare 721 v. Grayson 283 , 294, 442 Worsley v. Wood 171,413 Worth v. Gilling 563 v. Terrington 672, 701 Wortheu v. Wilmot 235 Worthington v. Hulton 557 v. Simson 632 v. Warrington 200, 252 v. W r igley 289, 348 v. Wyley 351 Worthley v. Emerson 445 Worthy v. Patterson 652 Wotherspoon v. Cunrie 607 Wray v. Milestone 216 443, 458 Wrench v. James 21 Wright v. Acres 446 v. Brown 570 v. Burroughs 198, 702, 719, 720, 721 v. Butler 380 v. Castle 58 v. Child 596, 599, 691 v. Clements 541 v. Cobleigh 56 v. Court 614 704, 706, 707 v. Egan 418 v. Goddard 186, 187, 449 v. Hart 257, 258 v. Hazen 380 v. Holbrook 573 v. Howard 625 v. Lainson 597, 690 v. Leonard 406, 528, 654 v. Maidstone, Lord, 332 TABLE OF CASES. lxxxiii Wright v. Maiden & Melrose R. Co. v. Newton v. New York &c. R. R. Co. v. Paige v. Post v. Quirk v. Roach v. Smith v. Stavart v. Tallis v. Watts v. Williams v. Wilson v. Wright 593, 627, 628, 736, Wrightup v. Chamberlain v. Greenacre Wyatt v. Citizen's Ry. Co. v. Harrison 604, v. Thompson v. White v. Williams Wyburd v. Stanton Wye v. Fisher Wyer v. Dorchester & Milton Bank Wyld v. Pickford 97, 487, Wylde v. Radford Wylie v. Birch 597, Wyman v. Hook Wynne v. Wynne Wythes v. Labouchere R. 565, 572 307 569 538 268 90 344 194 184 501, 643 346, 349 631, 734, 737, 739 613 299 260 125 572 605, 606 629 556, 712 492 134 21 341 624, 639 730 598, 693 182 689 399 X. Xenos v. Danube Company v. Wickham 458, 459 413 Yardley v. Arnold Yates, Ex parte v. Aston v. Dunster v. Eastwood v. Jack v. Lansing 3S4 222, 333 28, 214, 290, 369 186 510 481, 530 534 Yates v. Nash v. Tearle Yeardley v. Roe Yearsley v. Heane Yeatman v. Dempsey Yellowby v. Gower Yeoman v. Ellis Yertoue v. Wiswall Yonge v. Kenney York v. Brown v. Grindstone York Co. v. Central R. R. Young v. Beck ' v. Black v. Brompton &c. Co. v. Cole v. Cooper v. Covell v. Davis v. Geiger v. Glover v. Higgon v. Hitchins v. Hughes v. Machall v. Macrae v. Matthews v. Miles v. Miller v. Murphy v. Raincock v. Risworth v. Roebuck v. Smith v. Spencer v. Timmins v. White v. Winter Z. 221 26, 505, 508, 645 274 483, 555 263, 634 184, 536 686 515 559 6 531 93 706 380, 429 Waterworks 232 29 723 518 527 48, 281 75, 333 19 518, 711 92 432 665 727 234 538 437 200, 201 329 314 228 536, 593, 594, 689 134 264 317, 319 Zacharie v. Orleans Ins. Co. 160 Zehner v. Kapler 519 Zenobio v. Axtell 541, 544 Zinn v. New Jersey Steamboat Co. 107 Zuchtmann v. Roberts 380 Zwilchenbart v . Alexander 40, 93 PRECEDENTS, Etc. PART I. COMMENCEMENTS AND CONCLUSIONS OF PLEADINGS. I. OF DECLARATIONS. 1. IN ACTIONS COMMENCED IN THE SUPERIOR COURTS. Obs. (a.) The form of the commencement and conclusion of declarations is pre- scribed by the common law procedure act, 1852, s. 59. The 2d section enacts that all personal actions shall be commenced by writ of summons. The non-observance of the new form can only be taken advantage of by an application to a judge (or the court) to set aside the declaration as irregu- lar, or to compel the plaintiff to amend. See notes, infra, Marshall v. Thomas, 3 M. & Sc. 98, 2 Dowl. 208; White v. Feltham, 3 C. B. 658. (b.) Title of the Court. — The declaration must be entitled in the proper court. Com. Law P. Act, 1852, s. 54. It is irregular to entitle it at the back only ; Ripling v. Watts, 4 Dowl. 290 ; or in the ivrong court, or not at all. And the defendant may get it set aside as irregular, or compel plaintiff to set it right. (c.) The Date of the Declaration. — By common law procedure act, 1852, s. 54, ' ' every declaration and other pleading shall be entitled of the day of the month in the year when the same was pleaded, and shall bear no other time or date." It need not be entitled as of any term. A declaration or other pleading bearing date on a different day from that on which it is delivered, might be set aside as irregular; Hodson v. Pennell, 4 M. & W. 373; S. C. 7 Dowl. 208; Mills v. Brown, 9 Dowl. 151; but the application must be made promptly, i. e. within the time allowed for pleading ; Newnham v. Hanney, 5 Dowl. 259; but it is not a ground of demurrer ; Neal v. Richardson, 2 Dowl. 89; Harsant v. Busk, 6 Jur. 1102. The omission of the words "in the year of our Lord " would be irregular. Holland v. Tealdi, 8 Dowl. 320. The plaintiff cannot declare until the expiration of eight days after the service of the writ of summons, inclusive of the day of service, unless the defendant have appeared in the mean time. When an appearance is entered, the plain- tiff must, in order to prevent judgment of non pros., declare before the end of the term next after such appearance. Foster v. Pryme, 8 M. & W. 664 ; S. C. 9 Dowl. 749. If there be no non pros, signed (after a four days' written demand of declaration), the writ is in operation, so as to enable the plaintiff to declare within a year next after the writ is returnable, i. e. the service of the process. Com. Law P. Act, 1852, ss. 53, 58 ; Unite v. Humphrey, 3 Dowl. 532; Johns v. Sanders, 16 L. J. Q. B. 340; Hodgson v. Mee, 5 N. 6 M. 302; 3 Ad. & E. 765; 1 Chit. Arch. 203. The declaration must be filed where no appearance has been entered ; but notice of declaration need not, it seems, be given, unless ordered by the court or judge. Com. Law P. Act, 1852, s. 28. Although the writ is now in all the courts the commence- ment of the action from the time it was issued ; Alston v. Underbill, 2 Dowl VOL. II. 1 •J COMMENCEMENTS AND CONCLUSIONS Ob?. P. C. 26; Thompson v. Dicas, 1 Cr. & M. 768; yet it may often be material for the defendant, for the purposes of pleading, that the declaration should be properly entitled. (d.) ■ —By the pleading rules, Trinity T. 1853, reg. 4, "the name of a county -hall in all rase< be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff; and no venue shall be ! ited in the body of the declaration, or in any subsequent pleading, provided thai in cases where local description is now required, such local description -h.i!l be given." Therefore, even in eases where the venue is local, the state- ment of tli>- venue in the margin will suffice, unless local description be also essential from the nature of the action, as in ejectment, trespass, and replevin. forms of action, post; Tremeere v. Morison, 1 Bing. N. C. 89; S. C. i .M. & Sc. 609; Buckworth v. Simpson, 1 Cr., M. & R. 834. [If, when an action is local, there is no local description in the declaration, the name of the count v in the margin is to be taken as repeated in the declaration, and a- amounting to a material averment. Richardson v. Locklin, G B. & S. 777; S. ('. ■'< l L. J. Q. B. 225.] Venue is either local or transitory (see the notes to the different forms of action, post), and generally (1 Saund. 76, note (2); 1 Chit. PI. 7th ed. 279) the neglect to state any venue in any part of the dec- laration, either in the margin or body, may, it should seem, be visited by a demurrer. Remington v. Taylor, 1 Lutw. 235; 1 Chit. Arch. 207. Since the assizes for the northern and southern divisions of Lancashire have been held at different places, it would seem to be proper to state the venue in actions to be tried in that county thus: "Lancashire, Southern [or North- ern | Division." Atkinson v. Hornby, 2 Car. & K. 335; Thomson v. Hornby, 9 Q. B. 978. By the pleading rule 18 Tr. T. 1853, in actions for trespass to land, the close or place in which, &c. must be designated in the declara- tion by name or abuttals, or other description, in failure whereof the plaintiff may be ordered to amend with costs, or give such particulars as the court or a judge may think reasonable, post. The insertion of venue in the body of the declaration is not the subject of demurrer; the defendant can only apply by summons to a judge at chambers to strike out such superfluous statement of the venue at the plaintiff's expense. Farmery. Champneys, 1 Cr.,M. & R. 369; 4 Tyr. 859; S. C. 2 Dowl. 680; Fisher v. Snow, 3 Dowl. 27; Townsend v. Gurney, lb. 108; 1 Cr., M. & R. 590; 5 Tyr. 214, S. C. If the venue, when local, belaid in the. wrong county, the defendant may demur, if the objection appear on the face of the record; Tremeere v. Morison, 1 Bing. N. C. 97; 4 M. & Sc. 609; S. C. Simmons v. Lillystone, 8 Ex. 431 ; otherwise, the objection should, it seems, be pleaded. Boyes v. Hewetson, 2 Bing. N. ('. .".75; S. C. 2 Scott, 831 ; Richards v. Easto, 15 M. & W. 244. But a nonsuit will not lie on a wrong venue if there be no issue in the pleadings on the locality. Ilitchings r. Hollingworth, 7 M. P. C. C. 228. But after judg- ment by default, or verdict for the plaintiff, the defect is cured. 16 & 17 Car. •J. c. 8; 4 & 5 Ann. c. 16, s. 2; 1 Saund. 241, and note; Tidd, 9th ed. 427. Where, under common law procedure act, 1852, s. 41, two or more causes of action, which are local and arise in different counties, are joined in the dec- laration, the venue may be laid in either county. As to changing the venue, see Index, tit. •■ Venue." [Right of the attorney general for the crown, or the \'n\irr of Wales, to lay and retain the venue. Attorney General for the Prince of Wales v. Crossman, L. R. 1 Ex. 381.] (k.) 77,, Plaintiff's A7;»ie, Sfc. — The Christian and surname of the plaintiff should be correctly stated. It is necessary to s^ate the names of all the parties su'ui'.r or being sued, however numerous they may be, and although they con- Btitute a trading linn or company, unless they be incorporated, or authorized by the statute to iue as a company or body by a given title. [1 Chitty PI. 265, 271. ainl notes.] Formerly the misnomer of the plaintiff or defendant might have ben pleaded in abatement; but the statute for the amendment of the law, :; & i W. I, <•. il'. s. 11. provides " that no plea in abatement for a tnis- nomer shall be allowed in any personal action ; but that in all cases where it woui, 1, bm for this act, have been by law pleadable in abatement in such ma, the defendant shall be at liberty to cause the declaration to be amended at the costB of the plaintiff, by inserting the right name, upon a judge's summons founded on an affidavit of the right name; and in case such OF DECLARATIONS. Obs. summons shall be discharged, the costs of such application shall be paid by the party applying, if the judge shall think fit. This enactment, it seems, applies to a misnomer of the plaintiff. Kitchen v. Brooks, 5 M. & W. 522; 8 Dowl. 282, S. C. ; sed vide Lindsay v. Wells, 4 Scott, 471 ; 3 Bing. N. C. 777, S. C. The misnomer of the plaintiff (although there be a person of the name erroneously used) is no ground of nonsuit, if he identify himselfas the real creditor or claimant, and show that he is the party actually enforcing the proceedings, and defendant be not deceived. Boughton v. Frere, 3 Campb. 29; Moody v. Aslat, 3 Dowl. 48G ; and see Fisher v. Magnay, 1 D. & L. 40 ; [1 Chitty PL 266; Scanlan v. Wright, 13 Pick. 530.] Where the writ is wrong, it will be proper to commence the declaration thus : "A. B., at whose suit the writ of summons was issued in this cause by the name of E. B., by, &c. sues," &c. The general rule is that the declaration must not contradict the writ in describing the character in which -the plaintiff states in his writ that he is suing, if the process be by the plaintiff in a representative capacity, thus— " as executor " (see 1 Chit. Arch. 206 ; Ashworth v. Ryal, 1 B. & Ad. 19; Delves v. Strange, 6 T. R. 158; Attwood v. Rattenbury, 5 Moore, 209), or " as assignee of a bankrupt " (lb.); or if the writ be at the suit of the plaintiff qui tarn (lb.; Canning v. Davis, 4 Burr. 2417), the dec- laration, though it will not be demurrable, may be set aside for irregular- ity, if the plaintiff declare generally in his individual character. But it seems that if the process be general, the plaintiff may declare specially, or iu autre droit. Ashworth v. Ryal, 1 B. & Ad. 19; Marzetti v. Jouffroy, 1 Dowl. 44; Knowles v. Johnson, 2 Dowl. (353; Ilsley v. llsley, 3 Cr. & J. 330; 1 Dowl. 310, S. C. ; Tidd, 9th ed. 450. And the superfluous description in the writ of the plaintiff, as holding a representative character, without statingthat he sues " as " such (viz. " as executor," &c), but merely alleging " A. B. exec- utor, &c. " will not, it seems, bar or prevent a general declaration thereon by the plaintiff upon a cause of action accruing to him personally in his pri- vate character. Lloyd v. Williams, 2 Bl. R. 722; 1 B. & P. 383, note (b); Anon. 1 Dowl. 97; Watson v. Pilling, 6 Moore, 66; 3 B. & B. 4, S. C; Knowles v. Johnson, 2 Dowl. 653. Although the plaintiff describe himself in the commencement of the declaration thus, "A. B. executor," &c. or " assignee," &c. without showing in the body of the declaration any cause of action accruing to him in such character ; and the body of the declaration state a right of action resulting to the plaintiff individually, yet the defendant cannot demur, or take any objection; for the description of the plaintiff's special capacity may be rejected as surplusage. Reynolds v. Welsh. 1 Cr., M. 6 R. 580; Hargreaves v. Holden, lb. note (a); Free v. White, 1 Dowl. N. S. 586. If the writ be at the suit of two parties, and the declaration be by one only, it will be set aside for irregularity; Rogers v. Jenkins, 1 B. & P. 383; unless one dies before declaration, and then the death should be suggested. And in general the name of a party not mentioned in the writ cannot be added as a plaintiff in the declaration ; but where the name of the official assignee of a bankrupt had been omitted in the writ and declaration at the suit of the assignees, the court allowed his name to be introduced as a joint plaintiff, as an amendment, on payment of costs; Baker v. Neaver, 1 Dowl. 616 ; 1 Cr. & M. 112, S. C. ; and a name of a plaintiff may now be added or struck out before or at the trial. Com. Law P. Act, 1852, ss. 34, 35. See post, "Non-joinder." [But the court has no power to amend when parties are altogether wrong. Clay v. Oxford, L. 11. 2 Ex. 54. Under the New York Code, §§ 173, 175, the court may, before or after judgment, amend any pleading, process, or pro- ceeding, by adding or striking out the name of any party. An amendment of this kind may be made in Massachusetts, under the practice act, at any time before final judgment. Genl. Sts. c. 129, §41.] And where, in an action by executors, the defendant pleaded in abatement the nun-joinder of one executor who had not proved, the court allowed the proceedings to be amended by adding his name, on payment of costs, as the statute of limi- tations would have barred a fresh action; hut they intimated that in future no amendment of that kind would be allowed, except to avoid the operation of that statute. Lakin v. Watson, '-' Dowl. 663. It is not unusual to state, A B. "the plaintiff in this suit," by, &c. sues, &c. ; but this is not necessary although the plaintiff is afterwards called " the plaintiff " in the declaration Ob COMMENCEMENTS AND CONCLUSIONS Tin Vermont the writ and declaration are blended and made one instrument, by statute: Genl. Sts. c. 33, § 1 ; and in pleading the writ may be referred to, to help oul a defective averment, or the want of a material averment in the declaration. Church v. Westminster, 45 Vt. 380.] (y ) D< claration by i Harney or in Person. — The omission to state whether the plain- liii sues or declares by attorney or in person, may be made the subject of an annlication to a iud^e to set aside the declaration as not being in conformity JSh the prescribed form. White v. Feltham, 3 C. B. 658 ; 4 D. & L. 454. \11 persons except married women, infants, and idiots, may sue and declare bv attorney. 1 Chit. Arch. 71. Infants must sue by guardian or next friend. l'Vie Rules Hil. T. 1853, r. 5; [1 Chitty PI. 291, and notes.] Idiots must sue in person. [1 Chitty PL 21; Hamilton v. Colwell, 10 R. I. 39.] Corporations by attorney appointed under their common seal. See lb. ; Co. Lit. 66 b. (g ) The Defi ndant's Name.— The effect of a misnomer of the defendant, and the mode of takin"- advantage of it, have been already noticed. See ante, f>). As to describing defendant by an initial letter for a Christian name, see Kinners- lev v. Knott, 7 C. B. 980 ; Nash v. Collins, 17 L. J. N. S. C. P. 91 ; 3 & 4 TV. 4, c. 42, s. 1 ; such description would be amended under common law procedure act, 1852, s. 222. It would not be demurrable ; lb. s. 51 ; nor be set aside as irregular. Burt v. Kennedy, 4 M. & W. 58G. There is no mate- rial or objectionable misnomer of the right name, if the mistaken name be idem sonans. See Rex v. Shakespeare, 10 East, 83, where Shakepear for Shakopeare was held a material misnomer ; Webb v. Lawrence, 1 Cr. & M. 806, Lawrance for Lawrence held immaterial ; Abithol v. Benedetto, instead of Benedetto, 2 Taunt. 401, held immaterial ; Dickenson v. Bowes, 16East, 110, K«y for Key held immaterial. Where the defendant is misnamed in the process/it may be advisable to declare against him thus : "A. B. by, &c. sues C. D. who has been summoned by the name of E. D." &:. Hobson v. Wads- worth, 8 Dowl. 601. A party who executes a deed by a wrong name should be sued by that name. Gould v. Barnes, 3 Taunt. 504 ; Crawford v. Stack- well, 2 Stra. 1218 ; Williams v. Bryant, 5 M. & W. 447 ; [1 Chitty PI. 265, 271.] Upon a writ against two persons, the declaration will not be irregular, although one only be declared against, the cause of action being against him onlv, provided no proceedings be taken against the other party. Evans v. Whitehead, 2 M. & R. 367 ; Bowles v. Bilton, 2 Cr. & J. 174. There cannot in any case be a writ against two and a declaration against each separately upon such writ ; for " every writ of summons shall contain the names of all the defendants, if more than one, in the action, and shall not contain the name or names of any defendant or defendants in more actions than one ; " Com. Law P. Act, 1852, s. 4 ; Pepper v. Whalley, 1 Bing. N. C. 71 ; Carson v. Dowling, 4 Dowl. 297 ; Knowles v. Johnson, 2 Dowl. G53 ; except in actions on bills°under the Sum. Pro. on Bills of Exchange Act ; post, tit. lt Bills of Exchange." As to the mode of proceeding where the writ is specially indorsed, and one or more only of several defendants appear, see Com. Law P. Act, 1852, s. 33, post, 6. Where several defendants are sued in contract, and one suffers judgment by default, and the evidence fails as against some of the others, the judge at nisiprius may amend by striking out the names of the latter under common law procedure act, 1854, s. 96 ; Johnson v. Goslett, 18 C. B. 728 ; but after verdict finding one only of two defendants to be liable, it is too late to amend by striking out the name of the defendant found not liable. Wickensw. Steel, 2 C. B. N. S. 488. [See ante, (e).] A declaration by two, commencing " A. B. and C. D. complains," &c and stating that the defendant was summoned to answer the plaintiff" (instead of plaintiffs), was not demurrable. Lyng v. Sutton, 4 M. & Sc. 417. Sometimes it is stated, in accordance with the form of the issue, that the plaintiff sues the defendant, who has been summoned to answer the plaintiff, " by virtue of a writ issued on," &c. But this is unnecessary, though not, it seems, irregular. Dupre v. Lan- gridge, 2 Dowl. 584. (h.) '• And the plaintiff claims £ ," &c. This is the form of conclusion given by ili«- common law procedure act, 1852, s. 59. As to the conclusion in manda- mus or injunction, post. Care must be taken to demand in this part of the declaration a sum equal to the full amount of the debt or damages sought tc be recovered. Com. Dig. Pleader, C. 84 ; Vin. Ab. Damages. The jury can OF DECLARATIONS. O Obs. not five larger damages than the amount laid in the declaration. Tidd, 9th ed. 896 ; but probably the plaintiff might be allowed, if necessary, to amend as to the amount claimed at the trial. Where interest is claimable as dam- ages, there should be laid at the end of the declaration a sum sufficient to cover the amount of interest. In an action by an informer (or qui lam action) damages are not recoverable, and should not regularly be claimed. The common law procedure act, 1852, s. 95, provides that where plaintiff re- covers a sum of money, it may be awarded to him by the judgment generally, without any distinction therein as to whether the sum is recovered by way of a debt or damages. See Gowens v. Moore, 27 L. J. Ex. 391. As to when a sum mentioned in an agreement is recoverable as liquidated damages or is merely a penalty, see Reynolds v. Bridge, 6 El. & Bl. 528 ; Sainter v. Ferguson, 7 C. B. 716; Cass v. Thompson, 5 W. R. 289 ; Betts v. Burch, 28 L. J. Ex. 267 ; [4 H. & N. 506 ; Ranger v. Great Western Railway Co. 18 Jur. 795 ; 2 Chitty Contr. (11th Am. ed.) 1314 etseq. and notes ; White- field v. Levy, 6 Vroom, 149.] 1. Declaration after a Writ of Summons. (A) In the queen's bench [or "common pleas," or "exchequer of pleas" (b)]. On the day of , in the year of our Lord . (c) London [venue (d)]. A. B., (e) by , his attorney, [or " in person," (f)] sues C. D. (g) For that [here state the subject-matter or cause of action if it have to be specially stated, beginning a second or subsequent count (a) thus : " And the plaintiff also sues the defendant, for that," &c. But if the claim be merely for money under the indebitatus counts, then the statement of the cause of action commences, " For money payable by the defendant to the plaintiff, for," stating the subject-matter of the claim, as for goods sold, money lent, fyc. as post.~\ Conclude the declaration thus : And the plaintiff claims £ . (h) [ Or, if the action be brought to recover specific goods or their value, " And the plaintiff claims a return of the said goods or their value, and £ for their detention" (see post, "Detinue"). Where the plaintiff' claims an "Injunc- tion," or " Mandamus," see post, those titles.'] 2. Declaration against two Defendants, where, in a former Action against one of them, he pleaded the Non-joinder of the other in Abatement. (6) In the . On the day of , A. d. . [venue]. A. B., by E. F., his attorney, [or " in person,"] sues C. D, and G. H., which said C. D. has heretofore pleaded in abatement the non- fa) Several counts on the same cause of Ward v. Bell, 1 Cr. & M. 848 ; Holford v. action are not in general allowed. PI. Rules, Dunnett, 7 M. & W. 348. Tr. 1853, 1, 2, 3. See the cases on this sub- (6) By the common law procedure act, ject collected, 1 Chit. Arch. Pr. 213; and 1852, s. 60, it is provided, that in all cases in the decisions will be noticed iii their proper which, after a plea in abatement of the non- places throughout the work. If there be joinder of another person as defendant, the only one contract between the parties, and plaintiff shall, without having proceeded to the plaintiff, in his declaration, insert two trial on an issue thereon, commence another special counts, he cannot recover on both, action against the defendant or defendants The proper course would be, to insert one in the action in which such plea in abate- count with two breaches. Holford v. Dun- ment shall have been pleaded, and the per- nett, 7 M. & W. 348. Where plaintiff de- son or persons named in such plea in abate- clared on a warranty of soundness of a ment as joint contractors, or shall amend by horse, and in a second count stated a con- adding the omitted defendant or defendants tract respecting a certain " other " horse, it the commencement of the declaration shal was held he was bound to prove two con- be in the above form, or to the like effect tracts. Dcare v. Ivy, 4 Q. B. 379 ; and see See, also, ss. 38, 39. Shires v. Burrow, 2 Mood. & Rob. 405 ; COMMENCEMENTS AND CONCLUSIONS joinder of the said G. H. [$c. ; proceed and conclude as directed in the first form]. 3. Declaration ivhere there are several Defendants, and the writ has been specially indorsed, and judgment has been signed against one Defendant, who has suffered judgment by default, and the Plaintiff proceeds against the other Defendants, (c) In the . On the day of , A. D. . [venue]. A. B., by , his attorney, [or "in person,"] sued out a writ of summons against C. D. and E. F., indorsed according to the common law procedure act, 1852, as follows [copy the indorsement], and the said C. D., although personally served with the said writ, hath not appeared thereto, and judgment herein has been signed against him, and the plaintiff declares against the said E. F., who has appeared* to the said writ. For [fyc. stale the cause of action, which must agree with that alleged on the special indorsement, showing the debt to have accrued from both the defendants for goods, $c. as the case may be, sold to them']. 2. DECLARATIONS IN ACTIONS REMOVED FROM INFERIOR COURTS, (d) 1. Commencement of Declaration in an Action after removal from an Inferior Court, (e) In the . On the day of , a. d. . [venue]. Whereas a plaint having been heretofore levied in the county court of , holden at [give the title of the county court], against C. D., at the suit of A. B., in an action on contract, the said plaint, with all proceedings concerning the same, were, by her majesty's writ of certiorari, issued out of the court of queen's bench, [" common pleas," or "exchequer of pleas,"] on the day of , a. d. , directed to the judge of the said county court, sent into the said court of queen's bench, ["common pleas," or "exchequer of pleas,"] and hereupon the said A. B., by , his attorney, [or "in person,"] declares against the said C. D. For [>.] 2. Commencement of a Declaration in Replevin. See " Replevin," post. {<•) This mode of proceding is provided (d) See ante 1, Obs. (a) ; and Dodd v. !'"' by the common law procedure act, Grant, 4 Ad. & E. 485. The cause of action 1852 Plaintiff may, instead of de- need not be stated to have accrued within daring against the defendant who has ap- the jurisdiction. Powell v. Ancell, 3 Scott peared, issue execution against the defend- N. R. 444; S. C. 3 M. & G. 191. It would art who baa Buffered judgment, and it may be irregular to state that plaintiff had been be prudent to do so, and drop the action summoned, if not the fact Keane v. White, against the defendant who has appeared, if 2 D. & L. 525. there be any doubt of plaint iff succeeding in (e) If the form of action be replevin, see proving a joint liability against all the de- post, " Replevin." See form of declaration.. fondants. But the name of a defendant may after removal of proceedings from the lord be Btruck out at the trial, if the evidence mayor's court by habeas, Chitty's Forms, does not fix him. Ante, 4, (g). 74l". OF DECLARATIONS. T 3. IN ACTIONS BY AND AGAINST PARTICULAR PERSONS. 1. Commencement and Conclusion of a Declaration by an Adminis- trator. In the . On the day of , a. d. [venue]. A. B., administrator of all and singular the goods, chattels, and credits which were of G. H., deceased, at the time of his death, who died intestate, by E. F. his attorney, [or » in person,"] sues C. D. For [state the cause of action as in the forms hereinafter given, and conclude thus :] And the plaintiff as administrator as aforesaid claims £ . (/) 2. Declaration by an Administrator with the Will annexed, no Exec- utor being appointed, $c. In the . On the day of , A. d. . [venue']. A. B., administrator of all and singular the goods, chattels, and credits which were of G. H., deceased, with the last will and testament of the said G. H. annexed, by E. F., his the plaintiff's attorney, [or " in per- son,"] sues, [Sfc. as before."] 3. By an Administrator with the Will annexed, of Goods left un- administered by an Executor deceased. In the . On the day of , A. d. . [venue]. A. B., the plaintiff administrator, with the last will and testament of G. H., deceased, annexed, of all and singular the goods, chat- tels, and credits which were of the said G. H. at the time of his death left unadministered by O. P., deceased, who in his lifetime, and at the time of his death, was executor of the said will, by , his the plaintiff's attorney, [or " in his the plaintiff's own person,"] sues C. D. [fyc. ; proceed as directed in •preceding form]. 4. By an Administrator during the Minority of an Executor. (#) In the ■. On the day of [venue]. A. B., administrator of all and singular the goods, chattels, and credits which were of G. H-, deceased, at the time of his death, during the minority of L. M., an infant under the age of twenty-one years, who is executor of the last will and testament of the said G. H., by E. F., his the said plaintiff's attorney, [or "in person,"] sues C. D. [fyc. as before directed] 5. By Husband and Wife, Administratrix. (A) . In the . On the day of , A. d. . [venue]. A. B. and J. his wife, which said J. is administratrix of (/) It is no longer necessary to make an infant is sole executor, probate is not tc prof'ert of a will or letters of administration, be granted to him until he has attained the Com. Law P. Act, 1852, s. 55. age of twenty-one years. (q) By statute 38 G. 3, c. 88, s. 6, where {h) It is clear that the husband must, in 8 COMMENCEMENTS AND CONCLUSIONS all and singular the goods, chattels, and credits which were of G. H., deceased, at the time°of his death, who died intestate, by E. F., their attorney, sue C. D. for [$c. as be/ore. Conclude'] And the said A. B., and J. his wife, as admin- istratrix as aforesaid, claim £ . 6. Against an Administrator. In the On the day of , A. D. [venue]. A. B., by E. F., his attorney, [or "in person,"] sues C. D., administrator of all and singular the goods, chattels, and credits which were of G. H., deceased, at the time of his death, who died intestate. For [Sfc. See forms of Causes of Action against Administrators, post, " Exec- utors." Where the defendant is surviving administrator, he will be described as such, without other change]. [6a. Another Form. The officer is directed to attach the goods and estate which were of A. B., deceased (being the intestate), in the hands and custody of C. D., adminis- trator of the goods and estate of the said A. B., and summon the said C. D., as administrator as aforesaid, to answer, &>c] 7. By the Assignees of a Bankrupt or Insolvent Debtor, (i) In the . On the day of , A. d. . [venue]. A. B. and G. H., assignees of the debts, estate, and effects of L. M., a bankrupt, according to the statutes in force concerning bankrupts, [or " an insolvent debtor, heretofore discharged as such, under and according to the statutes in force for the relief of insolvent debtors in England," (&)] by this case, join as a co-plaintiff. See Vin. death or removal and new choice, allow the Ab Bar. & F. Q. 22; Com. Dig. Bar. & name of the surviving or new assignee to be I". V. : Anon. 1 Salk. 282. substituted in the place of the former; and (i) See the bankrupt law consolidation the action may be prosecuted in the name 12 & 13 Vict. c. 106. By sect. 153, as- of the said surviving or new assignee in the • s may, by leave of the court of bank- same manner as if he had originally com- ruptcy, but not without, commence actions menced it. Bankrupt Law Consolidation the bankrupt might have commenced; but Act, s. 157. See Westall v. Sturgess, 4 M. a defendant cannot tet up as a defence the & P. 217; Bates v. Sturges, 7 Bing. 585. want of such leave ; and the consent of the [See similar provision in United States bank- creditora is not essential to the support of rapt law. Rev. Sts. U. S. p. 981, § 5048.] By the action. Lee v. Sangster, 2 C. B. N. S.; the common law procedure act, 1852, s. d v. Williams, 2 Y. & J. 475. It is 142, the bankruptcy or insolvency of a plain- clear that the official assignee must be made tiff in any action which the assignees might a plaintiff. See lb.; Baker v. Neaver, cited maintain for the benefit of the creditors ante, 3, (e). The ii'in -joinder of an assignee (Drake v. Beckham, 11 M. & TV. 315 ; Rogers as plaintiff may, in an action ex contractu, be v. Spence, 13 M. & TV. 571) shall not be ted under a plea traversing that the pleaded in bar to such action, unless the as- plaintins are assignees. Jones v. Smith, 1 signees decline to continue and give security Ex. 831. In order to put the plaintiffs upon for costs upon judge's order; if they so neg- proof of their character of assignees, the lect or refuse, the defendant may, within defendant must plead specially. See "Pleas eight days, plead the bankruptcy. Stanton ctu," post, title "Assignees," r. 5, v. Collier, 3 El. & Bl. 274. Assignees can '• ' | -" ,; - [See ^provision for proving title never be declared against "as assignees." '' f :i bankrupt law. They are not liable to be sued at law for l: • Bte. TJ. 8. p. 981, § 5049.] When an dividends. Bankrupt Law Con. Act, s. 190. dies, or a new assignee is chosen, (Jc) See the insolvent acts, 1 & 2 Vict. c. iction will not he thereby abated; but 110; 5 & 6 Vict. c. 116; Ford v. Dabbs, 2 the court may, upon the suggestion of such Dowl. N. S. 877. The consent of the cred- OF DECLARATIONS. b , their attorney, sue C. D. [$c. as usual See ante, 5, Form 1. Conclude'] And the plaintiffs, as (/) assignees as aforesaid, claim £ . 8. By the Assignees of a Bankrupt Partner and the Solvent Part- ner, (m) In the . On the day of , a. d. . [venue]. A. B. and G. H. and K. L., which said G. H. and K. L. are assignees of the estate and effects of O. P., a bankrupt, according to the statutes in force concerning bankrupts, by E. F., their attorney, sue C. D. [#c. as usual. See Forms, ante, 1 to 7 ; and conclude] And the said A. B., and also the said G. H. and K. L., as assignees as aforesaid, claim £ . 9. By or against Attorneys. Tlie Form will be as ante, Form 1. There is no occasion to describe the party as an attorney in the introductory part of the declaration, although he sues on his bill of costs. Since the 2 W. 4, c. 39, an attorney must sue and be sued in the common form ; and if about to leave England, he may be arrested. Flight v. Cooke, 1 Dowl. & L. 714. As to the privilege of an attorney to be sued in his own court, 1 Chit. Arch. 65 ; see post, " Pleas in Abatement." An attorney plaintiff, if he sue in person, still has the right to lay aud retain the venue in Middlesex, in transitory actions. Grace v. Wilmer, 6 El. & Bl. 982, 26 L. J. Q. B. 1, and cases there cited. But where an issue is directed by the court, it is no objection to an application to change the venue from Middlesex to Sussex, that the plaintiff is an attorney. Robertson v. Hayne, 16 C. B. 560. itors need not be obtained before bringing an fore the bankruptcy, the assignees and solvent action. Before assignees are appointed in partner must be the plaintiffs. Thomason v. the stead of provisional assignee, actions Frere, 10 East, 418; Eckhardt v. Wilson, 8 must be brought in the name of latter. 1 & J. R. 140. The bankrupt law consolidation 2 Vict. c. 110, s. 42 ; Miles v. Pope, 5 C. B. act, s. 152, enacts, that where one member of 294. Where, pending action, a plaintiff or a firm becomes bankrupt, the court of bank- defendant becomes bankrupt or insolvent, ruptcy may authorize the assignees to com- the action does not abate, but may be con- mence or prosecute any action or suit, in the tinued by assignees. Com. Law P. Act, name of the assignees and the remaining 1852, s. 142. [See corresponding provision partner, against any debtors of the firm, and in United States bankrupt law. Rev. Sts. obtain judgment as if the action had been U. S. p. 981, § 5047.] As to proceedings brought by the consent of such partner ; and by assignees under protection act, see 5 & 6 the hitter shall not release the debt, but, if Vict. c. 116 ; 7 & 8 Vict. c. 96 ; 8 & 9 Vict. c. he claim no benefit by virtue of the proceed- 127 ; 10 & 11 Vict. c. 102. Official assignee ings, shall be indemnified against the pay- may sue immediately, on appointment, for ment of costs, and the bankruptcy court may debt due to insolvent. Sayer v. Dufaur, 11 order him to be paid so much of the proceeds Q. B. 325. The fact of the plaintiffs being of the action as such court may think fit. assignees is admitted, unless specially de- The solvent partner may use the name of nied ; and an order of adjudication, which the assignees in bringing actions against the recites the date of the vesting order, is evi- debtors of the firm, but the assignees are dence of that date, and that the plaintiffs' entitled to an indemnity against the costs, if title accrued from that period. York v. they apply for it. Whitehead v. Hughes, 2 Brown, 2 Dowl. N. S. 283. Cr. & M. 318 ; and see Laws v. Bott, 16 M. (/) As to the word " as " here, see Fer- & W. 300 ; [Dean v. James, 1 Ad. & E guson v. Mitchell, 2 Cr., M. & R. 687. 809.] (m) To recover a debt due to the firm be- 10 COMMENCEMENTS AND CONCLUSIONS 10. By Trustees, or by the Secretary of an Incorporated Railway or other Company empowered by Statute to sue by their Secre- tary, $c. (>0 In the . On the day of , A. D. [venuel. A. B., who before and at the time of the commencement of this suit had been and was duly nominated and appointed, and was then, and still is, secretary [or " treasurer," or " clerk," or " one of the public officers," as the case may be] to the [" trustees for carrying into execution and acting by virtue of a certain act of parliament, made and passed in a session of par- liament held in the fifth and sixth years of the reign of her majesty Queen Victoria, entitled, (o) 'An act,' &c. ("and of a certain other act," &c. "made," &c. if the fact,) according to the force, form, and effect of the said Statute," (or " statutes,") or, if the company have a corporate name by act of parliament, say "secretary to the Great Western Railway Company," giving the correct corporate name (p)] and who, on behalf of the said trustees, \_or u company,"] by , his attorney, sues \8?c. ; proceed as ante, 5, Form 1.] q . 11. By or against Trustees of Friendly Societies, 18 $ 19 Vict. c. 63 21 £ 22 Vict. c. 101. [As to industrial and provident societies, see 25 & 26 Vict. c. 87, and the Queenshead Industrial Society v. Pickles, 35 L. J. Ex. 1 ; S. C. nom. Queens- bury Industrial Society v. Pickles, L. R. 1 Ex. 1.] 12. By the Treasurer of a Loan Society. Qq) Timms v. Williams, 3 Q. B. 413 ; and see Brown v. Langley, 4 M. & G. 466, and Albon v. Pyke, 4 M. & G. 421. 13. By or against the Secretary of the Metropolitan Commissioners of Sewers. See 18 & 19 Vict, c. 120 ; 19 & 20 Vict. c. 112 ; 21 & 22 Vict. c. 104; I merits v. Pollard, 10 Ex. 817; The Metropolitan Board of Works v. Vauxhall Bridge Company, 26 L. J. Q. B. 253. 14. Against a Local Board of Health. e a form and law, The Company of the Southampton & Itching Float- (n) See another form, Smith v. Golds- against the officer of the company if any, worthy, 4 Q. B. 430, note (6). It is not suffi- otherwise against trustees, and not against cienl for the clerk to sue in his individual an individual member. Burton v. Tannahill, capacity. Guthrie v. Fiake, 3 Stark. 151. 5 El. & Bl. 797. The form against a company may easily be (o) A misrecital of the title of the act ted from the ahove. By the clerk of the would not be bad. Nixon v. Nanney, 1 Q. trustee* of a turnpike road (Wellington v. B. 747. 15 I. J. Q. B. 23) against clerk to (p) The courts will take judicial notice oi ".'.""" 1 " ' justices pf county. Kendall v. a corporation created bv act of parliament. King, 1 - < . !',. 483. An action for goods Church v. Imperial Gas Co. 6 Ad. & E. 846, juppbed to a wxaety registered under "The (?) See 3 & 4 Vict. c. 110, continued tc jtnal and Provident Societies Act, 1863 by 21 Vict. c. 19. See 20 & 21 Vict, c 1852," 15 & 16 Vict. c. 31, must be brought 41. OF DECLARATIONS. 11 iag Bridge v. The Local Board of Health of Southampton, 8 El. & Bl. 801. 15. By Churchivardens and Overseers for Land, fyc. held of them under 59 Geo. 3, c. 12, s. 12. (r) Ward v. Clarke, 12 M. & TV. 747 ; Churchwardens of St. Nicholas v. Sketchley, 17 L. J. M. C. 170. 16. By the 'public Officer of a Company authorized to sue by Royal Charter or Letters Patent granted pursuant to 1 Vict. c. 73, s. 3. In the . On the day of , A. t>. . [yemie~\. A. B., who, at the time of the commencement of this suit, was and still is one of the officers for the time being of the Company, duly appointed and acting in that behalf under and by virtue of certain letters patent heretofore, on \_fyc.~], granted by her majesty Queen Victoria to the said company, by and under the powers and provisions of an act of parlia- ment, made and passed in a session of parliament held in the first year of the reign of her present majesty, intituled, "An act for better enabling her majesty to confer certain powers and immunities on trading and other com- panies," to sue and be sued on behalf of the said company, on behalf of the said company, by , his attorney, sues, [fyc. as in Form 11.] 17. Declaration by Railway and other Companies under the 8 f the act have been com- against a company, where sued qua company, plied with, and the date of the certificate is and not to actions against the individual incorporation of the company, members thereof. Beardshaw v. Londes- 19 & 20 Viet c. 47, s. 13 ; 20 & 21 Vict. c. 14, borough, 11 C. B. 408 ; 2 Pr. Rep. 460. OF DECLARATIONS. 13 22. Declaration by or against a Corporation. The form is precisely as in the ordinary case, Form 1, ante, p. 5, giving correctly the corporate name. By municipal corporation act the name of all boroughs is " the mayor, aldermen, and burgesses," &c. ; 5 & 6 W. 4, c. 76, s. 6; [or, "citizens of a city."] Attorney General v. Corporation of Worcester, 15 L. J. Chanc. 398. [According to the practice in New Hamp- shire, a town corporation is described in legal proceedings as " the town of L.," and not, as in some other of the states, "the inhabitants of the town of L. ; " and a description in the latter form would be regarded in New Hampshire as defective. Lebanon v. Griffin, 45 N. H. 558 ; Flanders v. Stewartstown, 47 N. H. 549. Corporations should be described by the name given to them in their charters. See Angell & Ames Corp. s. 645 et seq. The inhabitants of a city need not sue in the name of the inhabitants of the city, but may sue by its corporate name. Lowell v. Morse, 1 Met. 473.] The courts take judicial notice of a corporation created by act of parliament. Church v. Imperial Gas Co. 6 Ad. & E. 846 ; [Bell C. J. in Lebanon v. Griffin, 45 N. H. 563.] It is not necessary to state that the company is a corporation, or whether it became so by charter or registration. Woolf v. City Steam-Boat Co. 7 C. B. 103. [See Harris v. Muskingum &c. Co. 4 Blackf. 267 ; Hubbard v. Chappel, 14 Ind. 601 ; Heaston v. The Cincinnati Railroad Co. 16 Ind. 278.] 23. By an Executor, (x) In the . On the day of , a. d. . [yenue~\. A. B., executor of the last will and testament of O. P., deceased, by E. F., his attorney, sues C. D. For [fyc. Conclude] And the plaintiff, as executor as aforesaid, claims £ . 24. By a Surviving Executor. The form is as before, except that the plaintiff" is to be called surviving executor. [24a. By an Executor of an Executor. A. B., executor of the last will and testament of C. D., deceased, who was executor of the last will and testament of E. F., deceased, &c] 25. Against an Executor ; or Husband and Wife, Executrix. Adopt the common form, ante, 5, Form 1, describing defendant executor fyc. ut supra ; or against husband and wife, executrix, state C. D., and J. his wife, executrix of the last will and testament of O. P., deceased. [25a. Against a Surviving Executor. The officer is directed to attach the goods and estate of A. B., deceased, in (z) As to declaring as executor on general process, and vice versa, see Obs. ante, 3, (e). 14 COMMENCEMENTS AND CONCLUSIONS the hands and possession of C. D., surviving executor of the last will and testa- iiinii of the aforesaid A. B. [An executor de son tort is sued in the same manner as if he were really executor. 256. Against Heir and Devisee. A. B., son and heir of C. D., late of, &c. deceased, and E. F., devisee of said C. D., & 26. Declaration against Hundredors. (y) Use the common form, No. 1, ante, 5, describing the defendants thus : The men inhabiting within the hundred of , in the county of . 27. Declaration by a Husband and Wife, (z) In the . The day of , A. D. ■ . [venue]. A. B., and J. his wife, by E. F., their attorney, [or "in their own proper persons,"] sue C. D. [fyc. as usual; conclude'] And the plaintiffs claim £ . 28. Against Husband and Wife. As in the common form, ante, 5, 6, 7, describing defendants as C. D., and J. his wife. 29. Declaration by or against an Infant, (a) In the . On the day of , a. d. . [venue']. A. B., by E. F., who is admitted by the court of our lady the queen here to prosecute for the said A. B., who is an infant within the i if twenty-one years, as the next friend of the said A. B., sues C. D. [fyc. ; proceed and conclude as usual. The declaration against an infant is the same in form as that against an adult.] [29a. Another Form. To answer to A. B., an infant under the age of twenty-one years, who sues this action by C. D., his father and next friend [or his next friend], #c] ^ (>/) See 2 Chit. Arch. 1145; 2 Chit. Gen. guardian. Pr. Rn. Hil. T. 185.3, r. 5. The •81. prochein ami may sue without authority from (r) The marriage of a woman plaintiff the infant. Morgan v. Thome, 9 Dowl. 228. pending action, does aol abate the action, In Wilson v. Watson, C. P. sittings after T. I, ut the action may be proceeded with; in T. 1841, Tindal C. J. held that on a record Ml(l1 a case the declaration should BUggest commencing in this way (the only plea being the marriage; Com. Law P. Act, 1852, s. non assumpsit), the infancy of plaintiff was 1 " : ; "" 1 alh ge the debt or cause of action admitted on the record, and no proof of it '•'• accrued to the woman before the was necessary; the action was for money marriage of the plaintiffs. Post, " Husband had and received to the use of the infant and and \\ ilc' p a jj } )V ] 1 ; m to j^g c i e f en dant under an agree- («) An infant cannot sue by attorney; ment which he contended he could rescind. ante, as to admission of prochein ami or MS. Pearson, counsel for the plaintiff. OF DECLARATIONS. 15 30. Declaration by an Informer. In the • On the day of , A. D. [venue]. A. B., who sues as well for our lady the queen [or " for the poor of the parish of , in the county of "] as for himself, in this behalf, by E. F., his attorney, [or " in his own proper person,"] sues [#e. ; ■proceed as usual. See ante, 5, Form 1, and conclude'] And the plaintiff claims, as well for himself as for our lady the queen, [or " for the said parish,"] £ . 31. Declaration against Peers and Members of Parliament. The declaration is in the usual form. See ante, 5, Form 1. The title of the peer should be stated. The M. P. need not be so styled. The uniformity of process act, 2 W. 4, c. 39, s. 1, abolishes the privilege of peers and mem- bers of parliament to be sued by original or bill. They are to be sued by writ of summons in the ordinary form. No ca. sa. can be issued against peers or members of parliament during their privilege. As to proceedings against an M. P. subject to the bankrupt laws, see Bank. Law Con. Act, 1849, s. 77 ; Chitty's Forms, 642 ; Chit. Arch. 1094. 32. Form of Declaration by or against a Surviving Plaintiff or Defend- ant, ivhere the Death occurred before Writ issued. In this case the commencement and conclusion of the declaration will be in the common form. See ante, 5, Form 1. As to the body of the declaration, see " Declarations on Contract," post, " Partners." 33. Commencement of Declaration where one of the Plaintiffs died after the issuing of the Writ, (b*) In the . On the day of , a. d. . [venue]. A. B., by E. F., his attorney, sues C. D., who has been summoned to answer the said A. B. and one E. F., who died after the issuing of the writ of summons, at the suit of the said A. B., and the said E. F. in his lifetime, in this cause. For [proceed as in the forms at the suit of a sur- viving creditor, S?c. post, tit. " Partners."] 34. The like, where one of the Defendants died after the issuing of the Writ, (c) In the . On the day of , A. d. . [venue]. A. B., by E. F., his attorney, sues C. D., who has been summoned to answer the said A. B. by virtue of a writ issued in this cause (b) An action does not abate by death If the above suggestion be not made, the sub- of a sole plaintiff or defendant, or of one or sequent proceedings will be void. Barnewell more of several plaintiffs or defendants ; C. v. Sutherland, 1 L., M. & P. 159 ; Larchin v. L. P. Act, 1852, ss. 135-6-7-8 ; but the death Buckle, lb. 740 ; Pinkus v. Sturch, 5 C. B. being suggested upon the record, the action 474. As to compelling continuance or aban- may proceed at the suit of the legal repre- donment of action, see C. L. P. Act, 1854, s. sentative of such sole plaintiff or by the sur- 92. viving plaintiff or plaintiffs. Post, Appendix. (c) Supra, note (b). 10 COMMENCEMENTS AND CONCLUSIONS on [Src] against the said C. D. and one G. H., who died after the issuing of the Baid writ. For [proceed as usual, alleging the debt or cause of action to have accrued against the defendant and the said G. H. deceased, post, tit " Partners."] 35. Declaration by Judgment Creditor against Garnishee, on attach- ment of Debt, in his Hands, (d) In the Q. B. [or " C. P." or "exchequer of pleas."] The day of , a. d. [venue]. A. B., by , his attorney, [or "in person,"] sues E. F. by a writ issued forth of this court, in these words : Victoria [8jc. copy the writ.] And the said E. F. has appeared to the said writ, and the said A. B., by his attorney aforesaid, says that the said debt due from the said E. F. to the said C. D. is for [fyc. ; here state the debt as in a declaration in ordinary cases'] ; and the said A. B. prays that execution may be adjudged to him accordingly for the said £ , and for costs of suit in this behalf. II. PLEAS, REPLICATIONS, &c. I. PLEAS IN ABATEMENT. («) 1. Commencement and Conclusion of Plea in Abatement. In the Q. B. [or " C. P." or " exchequer of pleas."] The day of , A. d. . (/) C. D. \ The said defendant, by , his attorney, [or " in person," (g)] prays at-. - judgment of the said writ and declaration, (h) and that the same may A. B. ) be quashed, because he says that [fyc. stating the ground of abatement. (d) mi. Law P. Act, 1854, s. 64. day. Byland v. Wormald, 2 M. & W. 393. The rules Mich, 1854, give the above form, The plea must be pleaded (after appearance and the form of plea as follows: "The said and declaration) within the above period, ].. J'., by , his attorney, says, that he although there has been no notice to plead ; : was indebted to the said C. D. as if pleaded after the proper time without alleged [or plead such other defence or several leave of the court or a judge, the plaintiff may sign judgment by default at the expira- general, Steph. ; Bac. Ab. tion of the time for pleading. See, generally, Abatement, N. ; Com. Dig. Abatement, B. ; 2 Chit. Arch. 869. By leave, it may be ■1.462; 2 Chit. Arch. 865. pleaded after the four days. See instances, Pleat be pleaded, that is, Sowter r. Dunston, 1 M. & By. 508 ; Milner i red in, four days after the delivery, or v. Milner, 3 T. B. 632. There must be an tilint: of declaration. The four days are in- affidavit of the truth of the plea. 4 Ann. c. elusive of the first and exclusive of the last 16, s. 11; see forms and notes, post. The the plea is delivered, see post, Bl. B. 1094; Hunter v. Neck, 3 M. & G. (7/1). When to be pleaded, supra, 181. (/<) This is now the proper form in all the (7) A plea in abatement, unless pleaded courts; it is not sufficient to pray judgment . married woman, may be pleaded in per- of the declaration only. Davies v. Thomp- or by attorney. 2 Saund. 209 a. Pleas son, 14 M. & W. 161. It is not necessary to to the jurisdiction are to be pleaded in per- say "comes and defends the wrong," &c. as son. GiL C. P. 187; Grant v. Sondes, 2 formerly. See post, 19, note (p). OF PLEAS, REPLICATIONS, ETC. 17 See forms, post, Index, " Abatement," and conclude] And this the defendant is ready to verify : wherefore he prays judgment (i) of the said writ and decla- ration, and that the same may be quashed, [fyc. or if the plea be " Non- joinder," or " Coverture," see the forms, post. And affidavit of truth, see form, post, " Abatement."] 2. Commencement and Conclusion of Replication thereto, (k) In the . The day of , a. d. The plaintiff says that his said writ and declaration ought not (k) to be quashed, because he says that \_fyc. slating the matter ; and if it be merely in denial, concluding thus :] And this the plaintiff prays may inquired of by the country [_8fc. ; or if the replication be not a mere traverse, and contain new matter, conclude'] And this the plaintiff is ready to verify : wherefore he prays judgment (I) and his damages, [fyc. ; conclude as in the case of a replication in bar, post, 24, Form 7 ; or perhaps the conclusion might be after the verification, with a prayer of judgment, whether the said writ and declaration ought to be quashed.] 2. PLEAS IN BAR, AND REPLICATIONS, AND SUBSEQUENT PLEADINGS. Obs. — When the plaintiff has declared, the defendant, if within the jurisdiction, must plead within eight days, unless the time for pleading be extended by the court or a judge. Com. Law P. Act, 1852, s. 63. No ride to plead or de- mand of plea is now necessary, but notice to plead in eight days ; otherwise judgment may, whether the declaration be delivered or "filed, be indorsed on the declaration or delivered separately. lb. and s. 62. The eight days are plea in general cannot be amended ; 2 Chit. (/.•) If the plea be defective, the plaintiff Arch. 871 ; [but see 1 Chitty PI. 482, note may demur (generally) and the defendant (e); ] and a demurrer, even for informality, cannot amend ; see ante, 16, note (e) ; and the not constituting a defect in substance, may be plaintiff has costs if he succeed ou demurrer, general. Lloyd v. Williams, 2 M. & S. 484 ; 3 & 4 W. 4, c. 42, s. 34. Defendant cannot, Esdaile v. Lund, 12 M. & W. 607 ; Ryalls v. upon demurrer to the plea, object to the Bramall, 1 Exch. 734. See Dundalk West- declaration. Dundalk Western Railway Co. em Railway Co. v. Tapster, 1 Q. B. 667. v. Tapster, 1 Q. B. 667. But if the objec- Pleas of misnomer were abolished by 3 & 4 tion be not clear, the plaintiff should not \Y. 4, c. 42, s. 1 1, ante, (b) and (g). And by demur ; especially as the judgment, even if the common law procedure act, 1852, ss. 38, in his favor, is not final, but merely a respon- 89, pleas in abatement of non-joinder are ren- dens ouster. 2 Saund. 211, note (3); Tidd, tiered less obnoxious than formerly to the 9th ed. 641, 642. If it be probable that the' prosecution of a claim. See form and notes, defendant can establish the truth of his plea post, "Pleas in Abatement in Actions ex in abatement, the plaintiff should enter a cas- < 'ontractu." As to the pleas to the jurisdic- setur breve, except where the plea is of non- tion of the court, which are not properly joinder, where he should amend (C. L. P. pleas in abatement (Steph. 4th ed. notes, Act, 1852, ss. 38, 39, 60, ante, 5), and neither xxvii.), see forms, &c. lb. 46; 1 Went. 51,60, party pays costs thereon. 2 Chit. Arch. 61 ; 3 Chit. PI. 7th ed. 8. 1417 ; Poole v. Penbrey, 1 Dowl. 693. As (t) Tins prayer of judgment was necessary to the replication, &c. upon a plea of non- before the common law procedure act, 1852, joinder, see form and notes, post. The plain- 8s. 66, 69, dispensing with the prayer of judg- tiff recovers final judgment, with damages ment in a plea ; and this statute seems not and costs, if he obtain a verdict upon issue to apply to picas in mint; see post, 19, joined on a plea in abatement. Tidd, 9th note (jo) ; 1 >avies v. Thompson, supra : Whit- ed. 641. ling v. Desanges,3 C. B. 910; 4 1). & L. (/) This and the prayer of judgment seem 678; Chitty'a Forms, 99, 448; or to plead- proper. The rule as to precludi non and mgs byway of estoppel ; Weld v. Baxter, 11 prayer of judgment applies only to replica- Ex. 816; 3 Jur. N. S. 91 Ex. tions to pleas in bar. See post, 19, note (/<). vol. n. 2 1> COMMENCEMEKTS AND CONCLUSIONS. OBfi reckoned exclusive of the -lay on which notice to plead is given, but inclusive of the last day — unless the last day be a Sunday, Christmas Day, Good Friday, or a day appointed for a public fast or thanksgiving, in which case the time shall be reckoned exclusively of that day also. Rule 174, Hil. T. 15\ llojr. Gen. East. T. 1856, service of pleadings must be made before 7 o'clock v. if., except od Saturdays, when it shall be made before 2 o'clock p. m. It' made after 7 i>. m. uu any day except Saturday, the service shall be deemed to bave been made od the following day, or if made-after 2 p. m. on v turday the service shall be deemed as made on the following Monday. mnelly r». Bremner, L. R. 1 C. P. 557 ; S. C. 35 L. J. C. P. 319.] ] fore judgment can be signed for want of a plea, notice to plead must have been given : and it must express the time within which the defendant is re- quired to plead. C. L. P. Act, 1852, s. 62-63 ; Ram v. Duncombe, 2 D. & L. 88. [f ii allow a longer time than necessary, defendant is entitled to such prolonged time. Solomonson v. Parker, 2 Dowl. P. C. 405. If the time for pleading or answering any pleadings shall not have expired be- fore the 10th of August in any year, the party called upon to plead, reply, &c. shall have the same number of days for that purpose after the 24th ( October as if the declaration or preceding pleading had been delivered or filed on the 24th October. Reg. H. T. 1853, note (9). A plea delivered between the 10th August and 24th October is a nullity, and plaintiff may, alter the time for pleading has expired, sign judgment. Mills v. Brown, 9 Dowl. 151 ; Severin v. Leicester, 12 Q. B. 949. Where a plea was delivered after 2 p. M. on Saturday, the 9th of August, on which the time for pleading expired, judgment signed on the 12th was held regular. Sharp v. Fox. 1 II. \ X. 49. Rut by consent, or by the terms imposed by a judge, pleadings may be delivered between those days. Where the original, or the < nlarged time for pleading expires on the 10th August, judgment for want of plea cannot be signed on the 11th. Morris v. Hancock, 1 Dowl. X. S. 320 ; Severin v. Leicester, 12 Q. B. 949 ; Wilson v. Brad- Btoche, -' Dowl. 416. And where a month's time had been given to plead, and twenty-live days of it were unexpired on the 10th August, defendant was held entitled to twenty-five days to plead after the 24th October. Trinder v. Smedley, 3 Dowl. 87. By Rule 175, Hil. T. 1853, the days between Thursday next before and Wednes- day next alter Easter Day and Christmas Day, and the three following days, shall not be reckoned or included in any rules, notices, or other proceedings, except notices of trial, or notices of inquiry. This rule extends to pleadiiu/s. 1 1;, prison v. Tait, 4 Bing. N. C. 443 ; 6 Dowl. 611 ; Wilkes v. Perk, 5 M. & . Minchner, 13 M. & W. 704 ; Roberts v. Brett, 17 C. B. 534. As to what are issuable pleas, see 1 Chit. Arch. 228 ; [1 Chitty PL 545, 546 ;] a plea in abatement, or a mere dilatory plea, or a demurrer for mere matter of form, formerly only bad on special demurrer is not ; post, p. 24, Obs. ; ante, 16, note (e) ; but a general demurrer is an issuable plea. Where the defendant is put under the usual terms to plead issuably, &c. his undertaking has reference to the then existing state of the record, and it ceases to be binding if the plaintiff subsequently amend his declaration. Children r. Mannering, 8 Dowl. 120; Chapman or Hutt v. Giles, 1 1). & L. 389 ; 11 M. & \V. 756. An application for time to reply is a waiver of objection to a plea on the ground that it is not issuable ; Trott v. Smith, 9 M. & W. 765 ; 2 Dowl. N. S. 278 ; Stead v. Carey, 7 M. & G. 646; 2 D. & L. 270 ; or service of an order [or semble, summons] for particulars of set-off ; Scott v. Watson, 1 C. B. 826 ; 3 D. & L. 208. But where de- fendant pleaded payment into court upon one count, and a non-issuable plea to the rest of the declaration, taking the money out of court was held no waiver to the objection that the plea was non-issuable ; Verbert v. De Keyser, 3 D. & L. 392 ; and it is no waiver to obtain leave to reply and demur to a plea. Simian v. .Miller, 1 C. B. N. S. 686. Terms of replying issuably will not in general be imposed on the plaintiff. Crutchley v. London & Birming- ham Railway Co. 2 D. & L. 102. 1. Form of Commencement of a Plea in Bar. In the Q. B. [" C. P." or " exchequer of pleas."] (m) On the day of , a. d. . (m) C D (?i) \ I And the defendant, (n) by , his attorney, (o) [or " in per- ' fson,"] says that [state the matter of defence. See post (/>)]. (m) The plea must be entitled of the ant C. D. sued as E. F., by, &c." It has proper court, and of the day when pleaded, been held that a mistake in stating t lie de- Com. Law P. Act, 1852, s. 54. The omis- fendant's Christian name in the commence- sion of any title of the court may he imma- nient of a plea does not entitle the plaintiff terial perhaps in a plea, if it, he not entitled to treat the plea as a nullity, and to sign in the wrong court. In the latter case, the judgment for want of a plea. Anon. 7 I). & plea can hardly he considered a plea in the R. 511. cause. The omission of a date, or a wrong (o) The omission to state whether defend- date, would be ground for a summons to set ant pleads by attorney or in person, was aside the plea for irregularity : but the de- formerly ground of demurrer, but it now ap- pendant would be allowed to amend on pay- pears to be only ground for setting aside the ment of trilling costs — a demurrer would plea for irregularity, or calling upon defend- not hold. Neal v. Richardson, 2 Dowl. 89; ant to amend and pay costs. A plea pleaded Hodson v. Pennell, 4 M. & W. 373. in the name of a person who is nol an attor- (n) Where the defendant is declared ney will not entitle plaintiff to treat the plea against by a wrong name, he cannot plead as a nullity, and sign judgment. Hill v in abatement [miti , 2), but may compel plain- .Mills, 2 Dowl. 696. tiff to amend. In Mich case it is usual to (/<) The form of commencement of a plea commence the plea, "And the said defend- is given by the Com. Law P. Act, 1852, * 20 COMMENCEMENTS AND CONCLUSIONS Variations in particular Cases of Defendants. 1. If one defendant only plead, otliers being sued with him, say, And the defendant C. D., by G. II.. bifl attorney, [$c. taking care to entitle the pleas, ■ ( . I), sued with another," or "others," " ats. A. B."] •J. It' the defendants be husband and wife, say, the said C. D. and J. his wife, by Gr. II.. their attorney [#c] 3. Ir the defendant be an infant, see the form, post, "Pleas in Actions on -. ' •• Infancy." luriations ichen the Plea is to Part only of the Cause of Action. 1. Tli.' defendant, by G. H., his attorney, as to the ["first"] count, [#c] 5. The defendant, by G. H., his attorney, as to the sum of £ , parcel of the money claimed in the ["first," "second," or "third count," as the case may be. see post~\ and the said causes of action in respect thereof, (q) says, [fyc] > ; . And the defendant, by G. H., his attorney, as to the said breach first assigned, [or -as to so much of the said declaration," or " first count," -as charges the defendant with assaulting," fyc. or " with not keeping the said prem- ii repair," "/••■with having spoken and published the following words," Sfc. as the case may be, following the words of that part of the declaration intended to be answered,'] and the causes of action in respect thereof, (q) says, [#c] 2. Replication. Joinder of Issue, (r) In the - — . A. B. The day of , A. d.. [ Tlie day the replication is delivered.] The plaintiff joins [or " takes "] issue upon the defendant's first [or " second "] plea. [ This concludes the pleadings.] 3. Replication where the Plea is not a mere Traverse, and the Repli- cation contains New Matter. In the . The day of , A. D. . A. B. j The plaintiff, as to the defendant's first [or "second"] plea, [or • "plea to the sum of £ , parcel, &c." as the case may be,] says, C. D. ) that [#c] (s) 07, which also provides that no formal de- taken as pleaded to the whole declaration, or formal conclusion Bhall be required and will be informal. Warier v. Harrison, <>r necessary to any plea,avowry, cognizance, 3 Ad. & E. 669. If, however, it clearly ap- ■ >r subsequent pleading; nor is it necessary pears from the body of the plea to what part in any plea or subsequent pleading to use of the declaration it intends to be an answer, any allegation of n non, ot actionem the plaintiffcannot sign judgment, though the uUerius non, or to the like effect, or any prayer commencement be informal. Vere w.Golds- of judgment, or in any replication or subse- borough, 1 Bing. N. C. 353 ; 1 Scott, 265. quent pleading any allegation of (>•) As to the effect of this joinder of issue, or to the like effect, or any prayer see common law procedure act, 1852, ss. 76, of jui lb. s. 66. The signature of 77,78,7'.). And see the form in section 77 ; ■ longer required to any plead- differing from form in the schedule. It ing. 1'. b, *5. should seem that the plaintiff "joins" issue This is n< cessary when the plea is to where the defendant's plea is a traverse, and only of a count, and the body of it does not allege new matter. Where the plea inswers both that part and the damages ac- alleges new matter, the plaintiff tal-r-s issue [uence. Sec Benry v. Earl, upon it. Glover r. Dixon, 9 Ex. 958. 8 .M. S V, . 230, per Parke 1». A plea with- (s) Where the plaintiff s pleading is in de- out being confined to any one count, will be nial of the pleading of the defendant or some OF PLEAS, REPLICATIONS, ETC. 21 [If the plaintiff have obtained leave to reply several matters, commence a second replication tint*: -And the plaintiff, for a further," or "second," or "third"] replication to the defendant's plea, says [#c] 4. Commencement of a Second or further Plea, (t) And for a second [or " third," or " fourth "] plea in this behalf, the defend- part of it, the plaintiff may add a joinder of for the defendant. Com. Law P. Act, 1852, s. 79; Winterbottom v. Lees, 2 Ex. 825. And this joinder need not have any additional date. ' Edden v. Ward, 12 Ad. & E. 428; 8 Dowl. 725; Middleton v. "Woods, 6 M. & W. 136 Aliter, when it is delivered by the other party as an independent plead- in-. Shackel v. Ranger, 3 M. & W. 409. ■• ]n all cases where the plaintiff's pleading is in denial of the defendant's, without joining issue, the plaintiff's attorney may give notice of trial at the time of delivering his replica- tion or other subsequent pleading; and in case issue shall afterwards be joined, such notice shall be available." Pr. Rules H. T. 1853, r. 40. When the replication contains new matter, there should he a notice to re- join, which is given on the hack of the repli- cation or delivered separately. And where plaintiff added a similiter for defendant, and the latter gave notice that he had struck it out, but did not deliver any joinder or de- murrer within the four days, it was held the proper course for plaintiff to sign judgment. Twycross v. King, 6 Q. B. 663 ; 2 D. & L. 534; Wrench v. James, 6 C. B. 198. Plain- tiff may, if defendant do not rejoin, strike out the previous pleadings, and sign judgment for want of a plea, or he may retain the pleadings on the record, and Bign judgment for want of a rejoinder. Petri v. Fitzroy, 5 T. R. 152 ; Hitchcock v. Walford, 6 Scott N. H. 792 ; Laws v. Shaw, 5 Q. B. 322. A notice to rejoin, however, is not necessary where the defendant is under terms to rejoin gratis ; hut the defendant must rejoin in four days after the delivery of the replication. Adkins v. Anderson, 10 M. & W. 12; 1 Dowl. N. S. 877; Winterbottom v. Lees, 2 Ex. 325. If the defendant, after notice, omit to rejoin, the plaintiff may sign judg- ment, although the replication tender issue, and the defendant was under terms to rejoin gratis, so thai the plaintiff might have added the similiter for him ; but in case, such sharp practice is resorted to, it seems the court will set aside the judgment without costs. Seaton v. Scales, l Barr. & W. 210, by Williams J. upon the authority of Wye v. Fisher, 3 B. & P. 443 ; but Seaton v. Scales is differently reported, by the name of Seaton v. Skey, in 3 Dowl. 527. No rule to rejoin or demand of rejoinder is now necessary. Com. Law P. Act, 1852, s. 53. Where a replication con- cluded to the country with an " &c." al- though no similiter was added in the issue or record, the judge tried the cause, the " &c." being sufficient. Clark v. Nicholson, 6 C. & P. 712 ; Rowlinson v. Roantrce, lb. 551. (t) Pleading several pleas. At common law a defendant could not plead several distinct pleas to the whole or part of a declaration; Co. Litt. 303 a; nor plead and demur to it. Bailey v. Baker, 1 Dowl. N. S. 891. But several pleas to distinct parts of the declaration, and which, if taken to- gether, formed but one entire defence, might and may still be pleaded without any leave for that purpose, as tender of part, and never indebted to the residue ; Archer v. Garrard, 5 M. & W. 63, 6 Dowl. 132 ; or a special plea to part, and another special plea to the residue, without any general issue to the whole. Vere v. Goldsborough, 1 Bing. N. C. 353 ; 5 M. & S. 265. The statute 4 & 5 Anne, c. 16, s. 4, first gave the right to plead several matters of defence. Com. Dig. Pleader, E. 2, Tidd, 9th ed. 654, 657; fl Chitty PL 586, and notes]. And now, by the common law procedure act, 1852, s. 81, the plaintiff in any action may, by leave of the court or a judge, plead in answer to the plea, or the subsequent pleading of the de- fendant, as many several matters as he shall think necessary' to sustain his action; and the defendant in any action may, by leave of the court or a judge, plead in answer to the declaration, or other subsequent plead- ing of the plaintiff, as many several matters as he shall think necessary for his defence, upon an affidavit of the party making such application, or his attorney, if required by the court or a judge, to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several mat- ters sought to be pleaded as aforesaid by wav of confession and avoidance are respect- ively true in substance and in fact ; provided that the costs of any issue, either of fact or law, shall follow the finding or judgment upon such issue, and be adjudged to the suc- cessful party, whatever may be the result of the other issue or issues. As to what pleas will in general be allowed to be pleaded, see Chit. Arch. 255; |1 Chitty PL 588, and notes-l Section 82 provides that no rul <■> court for leave to plead several mafters shall be necessary where a judge's order litis been made for t lie same purpose; and by section 83 objections to the pleading several pleas, &c. on the ground that they arc founded on the same ground of answer or defence are to be beard upon the summons to plead sev- eral matters. Section 84 enacts that the fol- lowing pleas may be pleaded together, as of .•>.-> COMMENCEMENTS AND CONCLUSIONS ant says, \JSfC. ; or, if the plea be to part only, (u) say, "And for a second plea as to ihf said count," or " And for a second plea as to the sum of £ , parcel of the plaintiff's claim in the declaration," or " first count," "mentioned ; " or, in an action on a covenant, " And for a second plea as to the said supposed breach of covenant first above assigned." See ante, 20, "Variations," 4, 5, 6.] 5. Plea in Bar showing Matter of Defence arising after the Action was commenced and before Defendant had pleaded, (x) In the . The day of , a. d. . C. D. ) The defendant, by , his attorney, [or " in his own proper per- ats. i-son,"] says that \fyc. showing that the cause of defence arose after writ A. B. ) or declaration and before the day of pleading. See forms, post.~\ 6. Commencement of a, Plea setting up an Equitable Defence, («/) And the defendant, by [_§c.~] for defence on equitable grounds, says [4^.] course, without leave of the court or a judge : a plea denying any contract or debt alleged in the declaration ; tender as to part : statute of limitations; set-off; bank- ruptcy of defendant; discharge under an insolvent act ; plene administr avit ; plene ad- ministravit praeter ; infancy ; coverture ; pay- ment; accord and satisfaction; release; not guilty ; a denial that the property injured is the plaintiff's ; leave and license ; son assault demesne ; if the defendant plead several pleas without leave when necessarv, plaintiff mav sign judgment (s. 86). By Rule 2, T. T. 1853, several pleas founded on the same ground of answer or defence shall not be allowed; but, if objected to, the judge may r allow such pleaa as may appear to him proper for de- termining the real question in controversy on its merits, subject to such terms as to or otherwise as the judge may think tit ; and Bee Rule 3, giving the plaintiff costs, where there are several pleas founded on the same ground of defence, and the judge iee to that effect at the trial. As to de- murring and pleading to the same matter, - Com. Law P. Act, 1852, s. 80, post, 24. An abstract of the several pleas, &c. in- tended to be pleaded, must accompany a .-ii mmons to plead several pleas, &c. This abstract is not meant to be critically exact ; if it gives substantial information of the pleas intended, it will ,-uffice. Bedells v. Ma--\ ,2 I). & L. 322. But if the pleas do not substantially agree with the abstract, the plaintiff may sign judgment. Hills v. Hay- man, 2 Ex. 323; Flight v. Smale, 4 C. B. 766; Holiday ;•. Bohn, .'5 Scott N. II. 496 ; Will- v. Robinson, 5 Ex. .'502. As if leave be given to plead satisfaction, and defendant flead satisfaction after action. Gabardi v. [aimer, 3 Ex. 289. A defendant is not compelled to plead all the pleas he has ob- tained leave for : thus, he may plead a plea to part under leave to plead a plea to the whole declaration, or he may abandon some of the pleas. Fryer v. Andrews. 1 Ex. 471 ; 1 Chit. Arch. 267. See form of relinquish- ment of a plea, confessed to be bad after a demurrer to it. M'Intyre v. Miller, 2 D. & L. 708 ; 13 M. & W. 725; Davidson v. Bohn, 5 C. B. 170. But defendant cannot waive his plea or enter a relicta verificatione, after a demurrer, without leave, unless by con- sent of plaintiff or his attorney. Rule 8, H. T. 1853; 1 Chit. Arch. 277. (u) The introductory part of the plea must be confined to the matter answered. *S'ee ante, 19, note (p). Every second or other plea must be written in a separate paragraph and numbered. Com. Law P. Act, 1852, s ?7. (x) By the Com. Law Fro. Act, 1852, s. 68, any defence arising after the commence- ment of any action, shall be pleaded accord- ing to the fact without any formal com- mencement or conclusion ; and any plea which does not state whether the defence therein set up arose before or after action, shall be deemed to be a plea of matter aris- ing before action. As to pleas puis darn i:i continuance, after defendant has before pleaded, see lb. s. 69, />ost. A plea of a defence aris- ing after action, may be pleaded with pleas of defences arising before action ; but the plaintiff may confess such plea, and is en- titled to the costs of the cause up to the time of pleading the first mentioned plea. PI. Rules, Tr. T. 1853, r. 22 ; Suckling v. Wil- son, 4 D. & L. 167. Payment into court is not a defence within this rule, and cannot be pleaded with a plea in bar to the same part of the plaintiff's claim. Field v. Taylor, per Wightman J. at chambers, June 27, 1857 ; Thompson v. Jackson 1 Scott N. R. 157. (y) This form of commencement is pro- vided by the common law procedure act, 1854, s. 83 ; any matter of defence on equit- able grounds which arises after the lapse of OF PLEAS, REPLICATIONS, ETC. 2-5 7. The Rejoinder, (z) The rejoinder is necessary where the replication is a traverse of the defend- ant's plea and a tender of issue, not a joinder in issue, or contains new matter. In (lie former case the rejoinder is as follows : In the • The day of , A. r>. . (a) C. D. \ The defendant joins issue upon the plaintiff's replication to the ats. V defendant's plea [or "first plea"]. \_If the replication contains new A. B. ) matter requiring a special answer or a traverse of some particular alle- gation, the rejoinder is thus :] The defendant, as to the said replication to his said plea [or "first plea"], says that [eye. stating the matter relied upon.~\ 8. Surrejoinder. The surrejoinder is entitled in the court, and of the day it is delivered. If the rejoinder tenders issue, say, And the plaintiff joins issue upon the rejoinder to his replication to the said plea [or " first plea," as the case may be~\ of the defendant. If the surrejoinder introduce new matter, the form will be, And the plaintiff, as to the rejoinder to the replication to the defendant's second plea, says that, fyc. 9. Rebutter. There will he a rebutter as follows, if the surrejoinder be not a joinder in issue, but traverses some allegation in the previous pleading or alleges new matter. In the former case the rebutter will be, And the defendant joins [or "takes"] issue upon the surrejoinder to the rejoinder to the replication to the defendant's said plea [or " first plea," as the case may be. If it be necessary to allege new matter in the rebutter, proceed as follows:^ And the defendant, as to the said surrejoinder, says that, fyc. 10. Surrebutter. It is rarely the pleadings extend to this length ; the surrebutter is necessary if the rebutter do not complete the issue. In ordinary cases, the plaintiff' would make up and deliver the issue with notice of trial, adding a joinder of issue. And the plaintiff joins [or "takes"] issue upon the defendant's said rebutter. If necessary to allege new matter, say, And the plaintiff, as to the said rebutter, says that, fyc. the period during which it could be pleaded, Law P. Act, 1852, ss. 78, 79. Defendant may be set up by way of audita querela. lb. may, by leave of the court or a judge, rejoin .-. 84. A replication of matter which on several" matters upon an affidavit if required. eqnitable grounds is an answer to a plea, Com. Law P. Act, 1852, s. 81. But several commences, " And the plaintiff, as to the de- rejoinders, founded on the same ground of fendant's first or second, &c. plea, for repli- answer or defence, are not allowed, except cation on equitable grounds, says," &c. lb. under certain circumstances. 11. 2, T. T. 6 - 85. 1853. As to rejoining and demurring, see (z) As to notice to rejoin and when plain- post, Com. Law P. Act, 1852, s. 80. tiff may add rejoinder for defendants, ante, 20, (a) As to date and title, ante, 1. aote (s) ; as to the form of rejoinder, see Com. COMMENCEMENTS AND CONCLUSIONS III. DEMURRERS. Obs. — The forms of demurrer and joinder in demurrer are prescribed by the Com. Law Pro. Act, 1852, s. 89. By section 50, either party may object by de- murrer to the pleading of the opposite party, on the ground that such plead- ing dot.--. I,, i get forth sufficient ground of action, defence, or reply, as the Case may be; and where issue is joined on such demurrer, the court shall proceed and give judgment according as the very right of the cause and mat- ter in law shall appear unto them, without regarding any imperfection, omis- sion , detect in, or lack of form ; and no judgment shall be arrested, stayed, or reversed, for any such imperfection, omission, defect in, or lack of form. By section 51, no pleading shall be deemed insufficient for any defect which could heretofore only be objected to by special demurrer. As to what were grounds of special demurrer, see Com. Dig. Pleader; 2 Bac. Ab. Plea-. N. ; Steph. on PL, and 1 Chit. PL; and the last edition of this work. A demurrer admits the facts, at least such as are pleaded, without involving any informality pointed out by the demurrer ; 1 Saund. 337 b, note (3); Jones v. Stevens, 11 Price, 235; Co. Lit. 716; Wheeler v. Haynes, 9 Ad. & E. 28G, note; [1 Chitty PI. 693, and notes.] But the statements in a special plea held bad on demurrer, cannot be used by the plaintiff as evidence for him on the general issue at the trial. Firmin v. Crucifix, 5 C. & P. 98; Montgomery v. Richardson, lb. 247. But, by Com. Law P. Act, 1852, s. 80, either party may, by leave of the court or a judge, plead and demur to the same pleading at the same time upon an affidavit. Lumley v. Gye, 22 L. J. Ex. 9 ; Price v. Hewett, 8 Ex. 146, of the party or his attorney, if required, that there is ground for doing so, and the judge may direct which issue shall be tried first. But though the required affidavit be produced, it is discretionary with the judge to make an order ; Thompson v. Knowles, 24 L. J. Ex. 43; and if a trav- erse have been allowed, the court will not rescind the order, and strike out the traverse, though judgment have been given against the party demurring. Sheehy v. Professional Life Assurance Co. [2 C. B. N. S. 211.] If the party demurring have not also traversed the pleading demurred to, and have judgment against him on the demurrer, he is concluded from trying the merits on the detective pleadings in the pending action, and the judgment is in such action final in that respect. Tidd, 9th ed. 741. Where, therefore, the facts are not clearly against the party, and the point of law is doubtful, it is in.general advisable not to demur, but to take issue on the facts, and go to trial ; that is, assuming the legal objection to be of so substantial a nature that a writ of error, or motion in arrest of judgment, maybe supported even after verdict for the opponent. On the other hand, where the cause of de- murrer U clear, and the facts are unfavorable, it' is proper to demur. The party demurring obtains his costs of the issue in law if he succeed, whatever may he the ultimate determination of the cause, and the result of the other issues; 3 & 4 W. 4, c. 42, s. 34; Bentley V. Dawes. 10 Ex. 347; Com. Law P. Act, 1852, s. 81 ; Prac. Rules, H. T. 1853, r. 62 ; whereas, if he proceed to trial upon the pleadings and be defeated, and move in arrest of judgment, or for judgment non obstante veredicto — any material fact omitted from the defective pleadings which would make them good, may be suggested, and an issue raised thereon, and judgment will follow the result. But should tic motion in arrest of judgment, or for judgment, non obstante veredicto, be successful, the costs of the trial of the issues in fact will be awarded to the party againsl whom judgment is given ; Com. Law P. Act, 1852, ss. 143, 144, 145; ami if he bring error, he will have to pay his own costs, although he succeeds in reversing the judgment. Bourne v. Gatliffe, 8 Scott N. R. 605 ; Fisher v. Bridges, l El. & Bl. 666; 24 L. J. Q.B. 165; Rules Hil. T. 1853, r. 69; PL Rules T. T. 1853, r. 25; Marshallv. Jackson, 4 EL & Bl. 669, note. It is also to be borne in mind that after verdict many errors are cured, and strong presumptions will be made to support the finding of the jury. Seel Saund. 228, note (1); Tidd, 9th ed. 919; 1 Chit. PL 7th ed. 705-716 ; Steph. PL; Nurse v. Wills; 4 B. & Ad. 738; Wilkinson v. Malin, 2 Tvr. 544; De- lamerer v. Reg. 35 L. J. Q. B. 313;] and therefore the point of law is fre- quently open to more favorable argument upon a demurrer, and the courts now have increased powers of amendment. Com. Law P. Act, 1852, s. 222, OF DEMURRERS. 25 Ous. 1854, s. 9G. A demurrer to a declaration or replication, for a defect in suit- stance, 18 allowable, although the defendant wen- under terms to plead issuably. In the . The causes of demurrer are, [fyc. Stating one or two of them concisely. 1. Form of a Demurrer. The day of -, A. D. . [ The day the demurrer is delivered, ante, 1, (c).] The defendant, by , his attorney, [or " in person,"] says that the said declaration [or " plea," or " replication "] is bad in substance. In the 2. Demurrer to Part of a Declaration. (.<:<;. 201, note; Briscoe v. Bill, 10 M'. & W. 740; Yates v. Tearle, 6 n. B. 283. An entin plea, if bad in part is bad altogether. Wilkinson v. Kirby, 15 I !. B. 130; Parr ». Jewell, 16 C. B. 684 ■ Com. Law P. Act, 1852, s. 75 ; [1 ChittyPl 572.1 Bul a plea good in part or bad in parr, may be const rued distributively on r/. murrer as well as on the finding of a jury. Blagrave v, Bristol Water Works Company, 1 B.&N.369; Gabriel v. Dresser, 15C.B. 622. See, also, Lyne v. Siesfield, 1 II. & N. 278. (d) This form is prescribed by the com- mon law procedure act, 1852, s. 89. By the practice rules, Hil. Term, 1853, r. 14, the party demurring may give a notice to the opposite party to join in demurrer in four days, which notice may be delivered separately, or indorsed on the demurrer, otherwise judgment ; which notice the court will not shorten. Hall v. Popplewell, 5 M. & W. 341. Although a defendant be under terms to rejoin gratis, he is not bound to join in demurrer gratis. Jones v. Key, 2 Dowl. P. C. 265 ; 2 Cr. & M. 350. The plaintiff cannot add the joinder for the defendant, Billing v. Kightly, 7 Scott, 844 ; 5 Bing. 629 ; Mullins v. Cox, 7 Dowl. 660, even by leave of a judge, except by consent. Cook v. Blake, 4 D. & L. 313. The defendant has four days in which to deliver it. Mullins v. Cox, 7 Dowl. 660 ; Hall v. Poplpewell, supra. On the other hand, it is irregular to deliver a joinder, and at the same time a notice that it has been set down for argument. Gibbons v. Mottram, 7 Scott N. R. 535. A defend- ant cannot enter a relicta verificatione after a demurrer, except by leave of court or judge, or consent of plaintiff or his attorney. Rule 8, Hil. T. 1853. Who to begin on argu- ment. In common pleas the plaintiff he- gins. Bourne v. Seymour, 16 C. B. 337, 342. Where there are cross demurrers, party tirst demurring to begin. Hill v. Cowdery, 1 H. & N. 360. But in Q. B. the plaintiffs coun- sel begins. Mayor of Blackburn v. Parkin- son, 28 L. J. M. C. 7. As to making up the demurrer and paper hooks, see Rules Hil. T. 1853, r. 15; 2 Chit. Arch. 886; Arboin v. Anderson, 1 Q. B. 502 ; Hooper v. Woolmer, 10 C. B. 370 ; Sandall v. Bennett, 2 Ad. & E. 204; Simmons v. Siggers, 1 C. B. N. S. 583. DECLARATIONS IN ACTIONS ON CONTRACTS. The several forms of actions are virtually abolished, though the substance of t lii-m remains. In the former editions of this work, declarations on con- tracts were arranged under the several heads of assumpsit, debt, covenant, and debt and detinue; in the present work they are collected under the above title. Until the passing of the Com. L. P. Act, 1852, s. 3, it was nec- lary that the form of action Bhould be mentioned in the writ, and the dec- laration had to agree with the writ as to the form of action; but now no form or cause of action need be mentioned in any writ of summons. And though formerly the misjoinder of forms of actions in the declaration was ground of demurrer, motion in arrest of judgment or writ of error, now by s. 41 of the above act, causes of action of whatever kind, provided they be by and against the same parties and in the same right, may be joined in the same suit, except in replevin or ejectment. In many cases it was optional on the part of the plaintiff to sue and declare either in form ex contractu, or in tort, as in actions against bailees, attorneys, surgeons, carriers, &c; and, though he may do so now, still, where the foun- dation of the action is a contract, in whatever way the declaration is framed, it is an action of contract ; but where there is a duty ultra the contract, the declaration may be framed in tort. See Legge v. Tucker, 1 H. & N. 500; 26 L.J. Ex. 71, S. C. L COMMON COUNTS. Obs. — The form of these counts is given by the Com. Law Pr. Act, 1852, Sch. B. As to when they may be adapted, see 1 Chit, on PI. 335-371, 7th ed. ; and the law upon them, Chit, on Contr. titles " Sale of Goods," " Services," "Money lent," &c. Whenever the terms of a special agreement have been performed, so as to leave a mere simple debt to be paid by the defendant to the plaintiff, the plaintitl'may give the circumstances in evidence, and recover under a general indebitatus count. Stone v. Rogers, 2 M. & W. 448; Linegar v. Hodd, 5 C. B. 347, and see Irving v. Veitch, 3 M. & W. Ill, per Parke B. 2 Wins. Saund. 269 b, note (2); [1 Chitty PL 350, and note (b), and cases.] LEADING PRINCIPLES WHEN THE INDEBITATUS COUNTS WILL LIE. Goods sold and delivered. — Whether sold at a fixed price or not, and actually or constructively delivered, Smith v. Chance, 2 B. & Aid. 755, on the order of the defendant, to him or his agent, or to a third person, Salter v. Woodhams, 2 M. & G. G50, not credited by the plaintiff, Storr v. Scott, 6 C. & P. 241; at defendant's request. [1 Chitty PL 355, 356, and notes; 1 Chitty Contr. (11th Am. ed.) 614, and note (n) ; Spicers v. Harvey, 9 R. I. 581 ; Begole v. McKen/.ic, 26 Mich. 470; Merrill v. Parker, 24 Maine, 89, 96; Martin B. in Castle v. Sworder, 5 H. & N. 281, 284; Warden v. Marshall, 99 Mass. S05, 307.] When delivered on sale or return, and not returned in a reasonable or specified time. Beverley i». Lincoln Gas Co. 6 Ad. & E. 886; Bianchi i». Nash, 1 M. . Fowler, 14 C B. DECLARATIONS ON CONTRACTS. Obs. 181; [1 Cliitty Contr. (11th Am. ed.) 618; Schlesinger v. Stratton, 9 R. I. Where the goods have been obtained by a fraudulent sale, provided the credit lias expired. Ferguson v. Carrington, 9 B. & C. 59 ; Strut v. ith, 1 Cr., M. X R. .112. Where the goods were to be paid for by bill, and tin- defendant has refused to give it, and the time during which it was to run has expired; Webh v. Fairmaner, 3 M. & ~W. 473; Helps v. Winterbottom, 2 B. & Ad. 434; Paul v. Dodd, 2 C. B. 800; [1 Chitty Contr. (11th Am. ed.) 615, and cases in note (r) ; 1 Chitty PI. 357, notes;] and in such cases the, plaintiff is entitled to interest from the time the bill would have become due; Farr v. Ward, 3 M. & W. 25; or where, if given, it has been dishonored; Fry v. Hill, 7 Taunt. 397. See, further, 1 Chit, on PI. 7th ed. 355; Roseoe on Evid. ; Starkie on Evid. title "Vendor and Vendee;" Chit, on Contr. tit. •• Sale lit Goods." When to declare specially, post, " Sale of Goods." 2. Goods bargained and sold.- — Where the property in the goods has passed by sale to the defendant, but there has been no actual delivery to him ; Simmons v. Swift, 5 B. & C. 277; Atkinson v. Bell, 8 B. & C. 857; nor any act equiva- lent to a delivery of them; Boulter v. Arnott, 1 Cr. & M. 333; [1 Chitty PI. 356-358, and notes; 1 Chitty Contr. (11th Am. ed.) 614, and note (/?) ;] pro- vided there has been a sufficient constructive acceptance; Norman v. Phillips, 14 M. & W. 27 7; Cunliffe v. Harrison, 6 Ex. 903; Acraman v. Morrice, 8 C. B. 849; Bushel] v. Wheeler, 15 Q. B. 442; Edan v. Dudfield, 1 Q. B. 302; Lill\ white v. Devereux, 15 M. & W. 285, 291; Elliott v. Heginbotham, 2 C. cS; K. 545; Alexander v. Gardner, 1 Scott, 630; or written memorandum; Archer v. Baynes, 5 Ex. 625; by brokers' bought and sold notes; Sive- wright v. Archibald, 17 Q. B. 103; or part payment to take the case out of the statute of frauds. Acebal v. Levy, 10 Bing. 376; Ashcroft v. Morrin, 4 M. & G. 450. See, further, 1 Chit. PL; Roseoe & Starkie, ubi supra; Chit. on Contr. tit. " Sale of Goods." When to declare specially, post, title " Sale of Goods." 3. Work and materials. — When done at the request of the defendant, even though then- In- a special agreement as to its terms, provided the terms have been complied with on plaintiff's part. Prickett v. Badger, 1 C. B. N. S. 96 ; 26 L. J. C. P. 33; 1 Chit. PL 358; Cutter v. Powell, 2 Smith's L. C. 2 Saund. 350, note (2); Clark v. Buhner, 1 1 M. & W T . 243, 250; [2 Chitty Contr. (11th Am. ed.) 826 et seq. and notes.] Attorneys, surgeons, far- riers, agents, apothecaries, surveyors, &c. may recover their charges on this general count. lb. [2 Chitty Contr. (11th Am. ed.) "Services and Works."] Indeed, it will suffice for the value of any mental skill and labor, such as in perfecting an invention. Grafton v. Armitage, 2 C. B. 336; - in r. Holyoke Railway Co. 35 L. J. Ex. 52; S. C. L. R. 1 Ex. 9.] See, further. Roseoe on Evid.;. Starkie Evid. "When to declare specially, see posi. titles "Work," "Master and Servant," "Agent," "Carriages," " sir.,,.- &c. ° 4. Money lent. — When lent to defendant, or to a third person on defendant's sole credit 1 Chit. PI. 360; [2 Chit. Contr. (11th Am. ed.) 876-879.] Provided there he no deed executed. Bristowe v. Needham, 9 M. & W. 729. If there be a covenant under seal to pay the money, it should be declared on; but if mortgage deed contain no covenant for repayment of the sum advanced, it i- evidence under the common count for monev lent. Yates v. Aston, 4 Q. B. 182; Matthew v. Blackmore, 1 H. & N. 762; "26 L. J. Ex. 150. An I O U is no evidence under this count, though it is under an account stated. Fe- amayer v. Adcock, 16 M. & W. 449; Douglass Holme, 12 Ad. & E. 641. Bee, further, Stark. Evid. 3d ed. 79; [2 Chitty Contr. 879.] 5. Money p - When actual money, Power v. Butcher, 10 B. & C. 346 ; Blea- don v. Charles, 7 Bing. 246, the property of the plaintiff, Gossett v. Swindon, 1 D. & L. 888, has been paid by the plaintiff for the defendant at his request, express or implied, Alexander v. Vane, 1 M. & W. 511; Blythe v. Smith, 4 M - ,N: '•• H>5; [1 Chitty PI. 361.362, and notes; 2 Chitty Contr. (11th Am. seq. and notes;] as, by one partner for a moiety of expense in the nature of capital expended by plaintiff to further the joint object; French v. Styling, 2 C. H. X. S. 357; 26 L. J. C. P. 181; or the funeral expenses of tin- defendant's wife: Ambrose v. Kerrison, 20 L. J. C. P. 135; [10 C. B. 776; Cunningham v. Keardon, 98 Mass. 538; Bradshaw v. Beard, 12 C. COMMON COUNTS. 29 Dbs. B. N. S. 344;] or by way of contribution; Davies v. Humphrey, 6 M. & W. 153; Pitt v. Purssord, 8 M. & W. 538; Prior v. Henbrow, 8 M. & W. 873; [2 Cbitty Contr. (] 1th Am. ed.) 891-896, and notes;] or as a surety; Kemp v. Finden, 12 M. & \V. 421; Jones v. Orchard, 1G C. P. G14; [2 Chitty Contr. 14th Am. ed. 889-891, and notes;] or in consequence of any other legal liability; Westropp v. Solomon, 8 C. 15. 345 ; Foster v. Ley, 2 Bing. N. C. 269: Lubbock v. Tribe, 3 M. & \V. 607 ; [2 Chitty Contr. (11th Am. ed.) 882 ;] as by paying a note which defendant got from plaintiff to secure for himself an illegal advantage under a composition arrangement; Horton v. Riley, 11 M. & W. 192; or a promissory note which defendant fraudulently gave in name of plaintiff and defendant's linn for defendant's own debt; Cross v. Cheshire, 21 L. J. Ex. 3; [7 Ex. 43;] or by compulsion, as by stock broker in compliance with rules of the stock exchange. Remfrey v. Butler, 6 W. R. 761, 230, and cases there cited; Pollock v. Stables, 12 Q. B. 765 ; Bay- ley v. Wilkins, 7 C. B. 886; Taylor v. Stray, 2 C. B. N. S. 175; lb. 197; [Rosewarne v. Billing, 33 L.J. C. P. 55; Chapman v. Shepherd, 36 L. J. C. P. 113; S. C, L. R. 2 C. P. 228.] But a request to pay will not be implied unless plaintiff be forced to pay. Sleigh v. Sleigh, 5 Ex. 514; [2 Chitty Contr. 881 et seq.] This count does not lie for moiety of expense of taking up award by plaintiff. Bates v. Townley, 2 Ex. 152. And the action may be maintained though the defendant have not been relieved from any legal liability in consequence of the payment. Brittain v. Lloyd, 14 M. & W. 762; Lewis i'. Campbell, 1 C. B. 541; Knight v. Cambers, 15 C. B. 562; [Emery v. Hobson, 62 Maiue, 578, 594.] See, further, Roscoe on Evid. 288; Hunter v. Hunt, 1 C. B. 302; Stark. Evid. 3d ed. 74 ; Chit, on Contr. title, "Money Paid." When to declare specially, post, title " Indemnity." 3. Money had and received. — This count is proper where the defendant, not being a mere servant of another; Stephens v. Badcock, 3 B & Ad. 30; Barford v. Shuttleworth, 11 Ad. & E. 926 ; [2 Chitty Contr. (11th Am. ed.) 910 et seq. ;] has received actual money; Marsh v. Keating, 1 Bing. N. C. 198; Standish v. Ross, 5 Ex. 227 ; [1 Chitty PI. 362, and note {y) ; Bullard v. Hascall, 25 Mich. 32; 2 Chitty Contr. (11th Am. ed.) 902, and note (c);] belonging to the plaintiff; Scarfe v. Halifax, 7 M. & W. 288; Vaughan v. Matthews, 13 Q. B. 187; [1 Chitty PI. 364;] but not to a mere trust, in which the plaintiff is interested; Edwards v. Bates, 7 M. & G. 590; [Bartlett v. Dimond, 14 M. & W. 49; Pardoe v. Price, 16 M. & W. 451; Bond v. Nurse, 10 Q. B. 244; Roper v. Holland, 3 Ad. & E. 99;] or money paid to him or allowed in account; Gingell v. Purkins, 4 Ex. 720; Lee v. Merrett, 8 Q. B. 820; Lucas v. Jones, 5 Q. B. 949; by the plaintiff himself under a mistake or forgetf ulness of fads; Kelly v. Solari, 9 M. & W. 54; Piatt v. Bromage, 24 L. J. Ex. 63; Aiken v. Short, 1 H. & N. 210; Barber v. Brown, 1 C. B. N. S. 121; [1 Chitty PL 367, and notes; 2 Chitty Contr. (11th Am. ed.) 928 el seq. and notes;] or which has been extorted from him by oppres- sion of law; Duke de Cadaval v. Collins, 4 Ad. & E. 858 ; Close v. Phillips, 7 M. & G. 586; Valpy v. Manby, 1 C. B. 594; [2 Chittv Contr. (11th Am. ed.) 939, 942, 947; Severance v. Kimball, 8 N. H. 386; Foshay v. Fer- guson, 5 Hill, 154 ;] or by a refusal to do something which it was the defend- ant's duty to do; Parker v. Great Western Railway Co. 7 M. & G. 252; [2 Chitty Contr. (11th Am. ed.) 941 ;] or by other fraudulent practices; Ashmole v. Wainwright, 2 Q. B. 837; Silt v. Martindale, 18 C. B. 314; or by duress of goods; Wakefield v. Newbon, 6 Q. B. 276; Oates v. Hudson, 6 Ex. 346; [2 Chitty Contr. (11th Am. ed.) 941, 947, 948;] but not for money levied on a fraudulent warrant of attorney; De Medina v. Grove, 10 Q. B. 152, 157; [1 Chitty PI. 366, see Roth v. Schloss, 6 Barb. 308; Anderson i>. Gage, Dudley (S. Car.), 319; Hale v. Passmere, 4 Dana, 70; 2 Chitty Contr. (11th Am. ed.) 947;] or where the defendant has tortiously taken property of the plaintiff, which may be, and possibly has been, converted into money ; Neate i>. Harding, 6 Ex. 349; [2 Chitty Contr. (11th Am. ed.) 905,906, and notes; 1 Chitty PI. 112, and note (s), 120, 36'3;] or has received money on a consideration which has afterwards failed; Young v. Cole, 3 Bing. N. C. 724; Remfrey v. Butler, 6 W. R. 230, Q. B. ; Woodland v. Fear. 7 El. & Bl. 519; [Shaw C. J. in Hill v. Rewee, 11 Met. 271, 272; Brown v. Harris, 2 Gray, 359; Briggs v. Vanderbilt, 18 Barb. 222; Parker C. J. in Griggs r. 30 DECLARATIONS OX CONTRACTS. OBS. Austin, 8 Pick. 20; Wheeler v. Board, 12 John. 363; Carters Carter, 14 Pick. 424; Earrison p. Chilton, 5 Yerger, 293; Lyon v. Amiable, 4 Conn. 350; Appleton o. Chase, 19 .Maine, 74:] such as on a deposit for a bargain which has afterwards entirely; Hunt v. Silk, 5 Bast, 449; gone off; Tilt v. Casenett, 4 M. & (i. 898; or by the sale of a bill which turns out to have been forced; Gurney r. Womersley, 4 HI. & 151. 139; [Terry v. Bissell, 26 Conn. 23; Merriam v. Wolcott, 3 Allen, 258; Cabot Bank v. Morton, 4 Gray, 156, 158; Baxter r. Dunn. 29 Blaine, 134; 2 I bitty Contr. (11th Am. ed.) 931 et seq. and notes;] or money in the bands of the stakeholder after the event has been de- termined in the plaintiff's favor; Brown v. Overbury, 11 Ex. 715; or to abide the event of a wager repudiated by the plaintiff before the result is ascer- tained: Martin v. Hew son, 10 Ex. 379; or, if the wager is illegal, before the money has been paid over; Gatty v. Field, 9 Q. B. 431; [Hastelow v. Jackson, 8B. & C. 221 : McKee v. Manice, 11 Cush. 358-361; Ball v. Gilbert, 12 Met. 397,402 lot: Sampson v. Shaw, 101 Mass. 150, 151; Humphreys v. Magee, 13 Miss. 435; Stacy v. Fuss. 19 Maine, 335; Rust v. Gott, 9 Covven, 16!?; Per- kins v. Hyde. 6 Verger, 288; 2 Chitty Contr. (11th Am, ed.) 919 ; money au- thorized to be applied to an illegal purpose may be recovered back before such application; Bone v. Ekless, 29 L. J. Ex. 438; S. C. 5 H. &. N. 925;] or money paid to a witness with his subpoena for conduct money, where the wit- ness, before he incurs any expense, is informed that the cause is settled. Martin v. Andrews, 7 El. & Bl. 1. So money paid as a deposit on shares in an undertaking which has proved abortive, or been abandoned, may be recov- mine; Johnson v. Goslett, 18 C. B. 728; unless the plaintiff have authorized the expenditure of the deposit on the expenses of the undertaking; Mowatt v. Lord Londesborough, in error, 4 El. & Bl. 1 ; 18 Jur. 1094, S. C. ; Watts v. Salter, 10 C. B. 4 77; or has derived benefit from, and is not in a situation to rescind the contract. Clarke v. Dickson, El., Bl. & El. 148; [1 Chitty PI. 36 7; 2 Chitty Contr. (11th Am. ed.) 923,938, 939; Blackburn v. Smith, 2 Ex. 783; Clark v. Baker, 5 Met. 452; Colville v. Besly, 2 Denio, 139; Lyon v. Bertram, 20 How. (TJ. S.) 154; Minturn v. Main, 3 Selden, 220; Gilbert v. Ross, 1 Strobh. 287. But the count for money had and received lies to re- cover any money paid by the plaintiff under a contract which has really been rescinded. Payne v. Whale, 7 East, 274; Moyer v. Shoemaker, 5 Barb. 319; Raymond v. Bearnard, 12 John. 275; Gillet v. Maynard, 5 John. 85; Feay r. Camp, 15 Serg. & K. 22 7; Danforth v. Dewey, 3 N. H. 79; Manahan v. Noyes, 52 X. H. 232; 1 Chitty Contr. (11th Am. ed.) 366, and note (n); 1 Chitty PL 368 ; Benj. Sales (1st Am. ed.), § 888, note (a), and cases. Money paid under an agreement, voidable by the statute of frauds, which the defendant cannot or will not complete, maybe recovered back under this count. Lane v. Shackfbrd, 5 N. H. 133; Buck v. Waddle, 1 Ham. 363; Thompson v. Gould, 20 Pick. 134; Cook v. Daggett, 2 Allen, 439; Eames v. Savage, 14 Mass. 425: Gillet v. Maynard, 5 John. 85; Rice v. Peet, 15 John. 503; Geer v. Geer, 18 Maine, 16; Grant v. Craigmiles, 1 Bibb, 206; Lyon v. Amiable, 4 Conn. 350; Hunt v. Sanders, 1 Marsh. 552; Allen v. Booker, 2 Stewart, 21: Maddcra v. Smith, 3 Stewart, 119; Kidder v. Hunt, 1 Pick. 328; Cabot v. Haskins, 3 Pick. (2d ed.) 95, note: Barnes v. Brown, 71 N. Car. 507; Albea v. Griffin, 2 Dev. & Bat. £q. 9; Winton v. Fort, 5 Jones Eq. 25] : Richards v. Allen. 17 Maine, 296. But the money paid under such a contract can be recovered back only on a refusal to perform the contract by the party receiving it; Beaman v. Buck, 9 Sm. & M. 207; Cobb v. Hall, 29 \t. 510; Collier r. Cates, 17 Barb. 471; Coughlin v. Knowles, 7 Alet. 57; Abbott v. Draper. 4 Denio, 51 ; or an inability on his part to perform the con- tract, or ;. mutual abandonment of it. Sims v. Hutchins, 8 Sin. & M. 328; Battle v. Rochester City Bank, 5 Barb. 414; Thompson 17. Gould, 20 Pick. 184; Sweet y. Lee, 3_M. & G. 452; 2 Chitty Contr. (11th Am. ed.) 928. This action lies, by a joint tenant or tenant in common, against Ids co-tenant who receives more than bis share of the profits of the estate. 4 Kent. 359, note (c), 369; Cochran v. Carrington, 25 Wend. 409; Brigham v. Eveleth. 9 Mass. 538 ; Dickinson v. Williams, 11 Cush. 258; Shepard v. Richards, 2 COMMON COUNTS. 31 Obs. Gray, 424. 426; Jones v. Harraden, 9 Mass. 540, note; Wooleverw. Knapp, 18 Barb. 265; Huff v. McDonald, 22 Geo. 131, 169: Moses v. Ross, 41 Maine, 360; Blanton v. Vanzant, 2 Swan, 276. Sec Thomas v. Thomas, 5 Ex. 28; Henderson v. Eason, 17 Q. B. 701. There are eases in which money ob- tained by fraud may be recovered in this action for money had and received. See 2 Chitty Contr. (11th Am. ed.) 936 et seq. So to recover money paid on an illegal contract disavowed before completion. 2 Chitty Contr. 944 et seq. There 'appear to he eases in which this action will lie, although no money was ever received by the defendant, but where the defendant has merely ad- mitted that he holds value in money to which the plaintiff is entitled; see 2 Chitty Contr. (11th Am. ed.) 903 et seq. ; Hennings v. Rothschild, 4 Bing. 315; Sprattv. Hobhouse, 4 Bing. 1 73 ; or has otherwise made himself liable for money, whether lie has received it or not. Floyd v. Day, 3 Mass. 403 ; Randall r. Rich, 11 Mass, 494; Jackson v. Mayo, 11 Mass. 152; Emerson v. Baylies, 19 Pick. 55; Appleton U.Bancroft, 10 Met. 237. If an agent, in- trusted with property to sell for money, dispose of the property, he is liable in this form of action, whether the sale be actually effected for money or not. Thompson v. Babcock, Brayt. 24; Miller v. Miller, 7 Pick. 136.] But to sustain this count there 'must in general be some privity between the plaintiff and defendant; the mere fact that the money belongs to the plain- tiff is not sufficient if the defendant is accountable for it to some third per- son. Bluck v. Siddaway, 15 L. J Q. B. 359; Cobb v. Becke, 6 Q. B. 930; Moore v. Bushell, 27 L. J. Ex. 3. [It is necessary to prove that the defend- ant or his agent received the money under such circumstances as to create a privity of contract between him and the plaintiff. Barlowe v. Brown, 16 M. & W. 128; Vaughan v. Matthews, 13 Q. B. 187, 189; Jones v. Carter, 8 Q. B. 134 ; Bloomer v. Denman, 12 111. 240 ; Hutchins v. Gilman, 9 N. H. 359; Carnegie v. Morrison, 2 Met. 396. It has been held, however, that there need be no privity of contract, except that which results from one man's having another's money, which he has not a right conscientiously to retain. Mason o. Waite, 17 Mass. 563; Hall v. Marston, 17 Mass. 5 79; Ea- gle Bank v. Smith, 5 Conn. 71; Wiseman v. Lyman, 7 Mass. 288; Freeman v. Otis, 9 Mass. 271; Carnegie r. Morrison, 2 Met. 396; Frost v. Gage, 1 Allen, 262; Knapp v. Hobbs, 50 N. H. 476, 478; Dickson v. Cunningham, Mart. & Yer. 221.] When to declare specially, see post, " Sale of Goods ; " "Vendors," " Warranty." [1 Chitty PI. 368".] 7. Interest. — Where there has been an express contract or an usage of trade to pay it, this claim may be inserted and the amount recovered as a debt. Ashby v. Ashby, 3 M. & P. 186 ; Farr v. Ward, 6 Dowl. 163; S. C. 3 M. & W. 25; Calton v. Bragg, 15 East, 223; Eaton v. Bell, 5 B. & Aid. 34; Iken v. Brad- ley, 2 Moore, 206; [Liotard v. Graves, 3 Caines, 226, 234, 235; Koone v. Miller, 3 Watts & S. 271; Williams v. Craig, 1 Dallas, 313, 315; Reab » ; M'Allister, 8 Wend. 109.] But without such a contract interest is not prima facie payable on a demand for goods sold, or balance struck on an account for goods; or on a demand for work and materials; or on an attorney's bill; or money lent, money paid or had and received ; or on a guaranty; or a for- eign judgment. [2 Chitty Contr. (11th Am. ed.) 952, 953, 954. As to inter- est on judgments; 2 Chitty Contr. 953, note (A).] But a surety is entitled to interest on money paid for his principal. Petrie v. Duncombe, 20 L. J. Q. B. 242; [Ilsley v. Jewett, 2 Met. 168 ; Gibbs v. Bryant, 1 Pick. 118.] And interest is payable on bills, promissory notes, and bankers' checks. [2 Chitty Contr. (11th Am. ed.) 954, 955, note (a) ;] but to obtain it the bill must be produced. Hutton v. Ward, 15 Q. B. 26. So interest is recoverable upon overcharges made by a railway company. Edwards v. Great Western Rail- way Co. 11 C. B. 588. When compound interest recoverable. Ferguson v. Fyffe, 8 CI. & F. 121, 140; [Page v. Broom, 4 CI. & Fin. 436, and note (1), and cases cited; 2 Dan. Ch. Pr. (4th Am. ed.) 1259, note (6) ; 2 Chitty Contr. (11th Am. ed.) 957, note (A). A special case must be made for the allowance of compound interest. Armstrong v. Campbell, 3 Yerger, 201; Connecticut v. Jackson, 1 John. Ch. 13; Darrel v. Eden, 3 Desaus. 241; Mowry v. Bishop, 5 Paige, 98; Ringgold v. Ringgold, 1 H. & (Jill, 11; My- ers v. Myers, 2 McCord Ch. 214.] In other cases it may be recovered on a liquidated demand as damages; 3 & 4 W. 4, c. 42, s. 28; Hudson v. Fawcett, 32 DECLARATIONS ON CONTRACTS. 9. 2 D. & I-. 11 : 7 M. & G. 348, per cur.: Harper v. Williams, 4 Q. B. 219, 234; from the time when a written demand of it was made; Friihling v. Schroeder, _' Bing. X. C. 77; Berrington v. Phillips, 1 M. & W. 48; and a letter demanding interest from a day prior to the date of the letter, is a suffi- cient demand under the statute to entitle the jury to give interest from the date of the demand. Londesborough, Lord, v. Mowatt, in error, 4 EL & Bl. 1; 2 Com. L. R. 1181; 23 L. J. Q.'B. 177. See, further, Stark. Evid. ; Chitty on Contr. tit. " Interest ; " [1 Chitty PI. 369. According to the general current of American authorities, interesl will be allowed after a demand of payment of an unsettled claim for goods sold and delivered, or services rendered, from the time of the demand; and a presentment of the account or commence- ment of a suit, is sufficient demand upon which to found, and from which to date, a claim of interest. Barnard v. Bartholomew. 22 Pick. 291, 294; Moll- vainc r. Wilkins, 12 .V. H. 481 etseq.; Ames v. Wilson, 22 Maine, 116; Sel- leck v. French, 1 Conn. 32; Gray v. Van Amringe, 2 Watts & S. 128; Moore v. Patten. 2 Porter, 451, 454; Houghton r. Haijar, Brayt. 1S3; Bates v. Starr, 2 Vt. 536; Cole v. Trull, 9 Pick. 325; Goff v. Rehoboth, 2 Cush. 475; David r. Conard, 1 Iowa (Greene), 336; National Lancers v. Lovering, 20 N. H. 511. Accounts for money advanced, lent, or expended, for the use of an- other, at his request, generally bear interest from the time it is advanced, &c. See Ilsley v. Jewett, 2 Met. 168; Gibbs v. Bryant, 1 Pick. 118; Liotard v. Graves, 3 Cairns, 226; Reid v. Rensselaer Glass Factory, 3 Cowen, 393; S. C. 5 Cowen, 589; Dilworth v. Sinderling, 1 Binney, 488,494; Weeks v. Hasty, 13 Mass. 218; Sims v. Willing, 8 Serg. & R. 103, 109; Miles v. Ba- con, 4 J. J. Marsh. 15 7; Selleck v. French, 1 Conn. 32; Taylor v. Knox, 1 Dana, 391, 399; Cheeseborough v. Hunter, 1 Hill (S. Car.), 400; Brecken- ridge v. Taylor, 5 Dana, 110/114; Goodloe v. Clay, 6 B. Monr. 236; Fowler r. Shearer. 7 Mass. 14; Davenport v. Mason, 15 Mass. 85; Campbell v. Musier, 6 John. Ch. 24; Barnard v. Bartholomew, 22 Pick. 291. Whether interest shall be recoverable in an action for money had and received, Mi-ins to depend on the circumstances of each case. A mere stakeholder, agent, trustee, or bailee, in whose hands money has been deposited, and retained without use or default on his part, would not be liable for in- terest. But where the money of one person has been detained wrongfully, or been used, by another, or where it has been kept by him when it should have been paid over, interest is properly chargeable in an action to recover it. See Dodge v. Perkins, 9 Pick. 369; Knight v. Reese, 2 Dallas, 182; Bell v. Logan, 7 j. J. Marsh. 503; Vance v. Vance, 5 Monroe, 521; Selleck c. French. 1 Conn. 33; Hudson v. Tenney, 6 N. H. 456; Evarts v. Nason, 11 Vt. 122; Wood v. Bobbins, 11 Mass. 504; Marion v. McRea, 1 Cheves (Law), 61; Johnson v. Eicke, 7 Halst. 316. Except in cases of money ad- vanced, expended, &c. as above stated, interest is not chargeable on open or current accounts between parties, until notice is given in some way by pre- sentment of the account, by demand of payment, or by suit brought. See Crawford v. Willing, 1 Dallas, 286; Selleck v. French, 1 Conn. 34; Wilt- burger v. Randolph, Walker (Miss.), 20; Raymond v. Isham, 8 Vt. 258; Shew- '•11 v. Givan, 2 Blackf. 314; Surton v. Gilliam, 1 Scam. 579; McKnight v. Dunlop, 1 Barb. 36. Where no other demand is made, the commencement of a suit for the money will be regarded as a demand for the purpose of aputing interest. Dodge v. Perkins, 9 Pick. 369; Hunt v. Nevers, 15 Pick. 500; Brewer v. Tyringham, 12 Pick. 547; Haven v. Foster, 9 Pick. 112; Bryfogle v. Beckley, 16 Serg. & R. 264; Nelson v. Cartwcll, 6 Dana, 7; Walker v. Wills, 6 Ark. 167; Schmidt v. Limehouse, 2 Bailey, 276; Ethe- ridge v. Binney, 9 Pick. 272, 279 ; Wells v. Abernethy, 5 Conn. 228. In an action to recover for money had and received, the plaintiff can only recover interesl from the date of the writ, unless in his declaration he alleged a de- mand before thai time. Ordway v. Calcord, 14 Allen, 59.] B. Account 8taU -This count should generally be added where the plaintiff's claim i- for a money demand (except where the action is against an infant or a corporation). It will be supported bj evidence of an admission in writing, such as an I O U; Payne v. Jenkins, 4 C. & P. 324; Fesenmayer v. Ad- cock, 16 M. cv W. 449 ; Curtis v. Richards, 1 Scott N. R. 155 ; Gould v. Coombes, 1 C. B. 543; Pain v. Harris, 8 W. R. 79, Ex.; [Buck v. Hurst, COMMON COUNTS. 33 Obs. L. R. 1 C. P. 2fl7;] or :t tiill of exchange is evidence as between the imme- diate parties; Burmester v. Hogarth, 11 M. & W. 97; Wheatley v. Williams, 1 M. & W. 583; Perry v. Slade, 8 Q. B. 115; or by parol, by the defendant to the plaintiff himself or to bis agent; Hughes v. Thorpe, 5 M. & \V. 656; Newhall o. Holt, 6 -M. &. W. 662; but not to a stranger; Breckon v. Smith, 1 Ad. Sc K.4SS; that a certain fixed mihi was due; Lane v. Hill, 18 Q. B. 252; Barker v. Birt, 10 M. & VV. 61; but nol it' there was a deed releasing the debt; Barker r. Heard, 5 Ex. 959. An award is nut evidence of an account Stated; Bates v. Townley, 1 Ex. 152; Porter v. Cooper, 1 Cr., M. & R. 387. In general it is not necessary to show the nature of the original debt; but the an i, nut stated must have been founded on a debt due and owing. Hut see Cleave v. Moors. :i Jur. N. S. 18 Ex. ; Berry v. Storey, C. L. R. C. P. 815; Cocking v . Ward, 1 C. B. 858. See, further, Stark Evid.; [2 Chitty Contr. (11th Am. ed.) 9G1 et seq. ; 1 Chitty PI. 371.] 1. The Common Indebitatus Count, where there is no Special Count in the Declaration. In the . On day of , A. D. . [venue]. A. B., by , his attorney, [or "in person,"] sues C. D. for money payable (a) by the defendant to the plaintiff, for [here state any Other debt that may be claimed under an indebitatus count, besides the claim for goods, $c. (ts for use and occupation, as the case may be, and proceed, using only such of the following statements of consideration, as goods, work, fyc. as may apply to the case, adding the account stated at all events. They will then form together one count (McGregor v. Graves, 3 Ex. 34; 18 L. J. 109) ; and the sum claimed by the plaintiff may be recovered by him uprni any one of the considerations stated (Dawson v. Collis, 10 C. B. 523; 20 L. J. C. P. 116); and on a plea of never indebted, the defendant may have the issue found dis- tributively partly for him, and thus get his costs on those parts on which he suc- ceeds (Traberne v. Gardner, 26 L. J. Q. B. 259) : for goods sold and delivered (b) by the plaintiff to the defendant (c) ; and for goods bargained and sold by the plaintiff to the defendant (c) ; and for work done and materials (d) provided by the plaintiff for the defendant at his request; (a) This form is given by the Common count stated ; Fagg v. Nucld, 3 El. & Bl. 650, Law P. Act, 1852, s. 91, schedule B, aud sed qucere; but the objection is cured bv should be carefully followed. Wilkinson v. pleading over. Wilkinson v. Sharland 10 Sharlan.l. 10 fix. 724. These words, "for Ex. 724. money payable by the defendant to the (l>) The Common L. P. Act, 1852, does plaintiff, ' are in substitution of the old form not give this form. Several sales may be of indebitatus counts in debt and assumpsit, proved on this count. Ferguson v. Mitchell 2 the latter alleging " That whereas the defend- Cr., M. & R. G87. [Under one item of charge" ant was indebted to the plaintiff in £ as follows :" To goods sold, materials found| for [.j-c-l, and the defendant, in consideration and work done," only one particular subject thereof, promised the plaintiff to pay him the matter of charge can be proved. Jones v. said sum of money on request," i. e. imme- Ilsley, 1 Allen, 273.] diately, which is the promise the law implies [c] It will be observed the words " at his on an executed consideration. Jackson v. request " are not in these forms, and are no Cobbin,8 M. & W. 790; lloscorla v. Thomas, longer necessarv ; thev arc implied from the 3 Q. B. 234 ; Kay v. Button, 7 M & G. 49."). bargain and sale. " Goods sold to defendant A debt solvendum in Juturo, will not, there- by plaintiff at his request," was not demur- fore, support this count. See O!^. ante, rable. Deriemer v. Fenna, 7 M. &W.439; The omission of the words " money payable 9 Bowl. 244. But the words "by the plain- by the defendant to the plaintiff." would tiff " are essential. Fenton v. Ellis, 6 Taunt render the declaration demurrable ; Place v. 192. Potts, 8 Ex. 705 ; except, perhaps, so far as (d) Materials cannot be recovered on a relates to the count for money found to be count for work only. Heath v. Freeland 1 due from defendant to plaintiff on an ac- M. & W. 543. VOL. II. 3 34 DECLARATIONS OX CONTRACTS. and f.»r money lent by the plaintiff to the defendant (e) ; i for money paid by the plaintiff for the defendant at his request; and for money received by the defendant for the use (/) of the plaintiff; and for interest upon and for the forbearance by the plaintiff to the defendant at his request of money due from the defendant to the plain- tiff; (" Plaintiff's declaration. In addition to the above English Forms. Goods sold. — And the plaintiff says the defendant owes him dollars for goods sold by the plaintiff to the defendant. Work. — Also that the defendant owes him dollars for work done by the plaintiff for the defendant. Board. — Also that the defendant owes him dolrars for board and lodging furnished by the plaintiff for the defendant. See Raymond v. El- dridgerill Mass. 390, 391. Freight. — For the carriage of certain goods by the plaintiff for the de- fendant. (e) " At his request," unnecessary in this support the Account may be whollv in writ- count. Victors v. Davis, 12 M. <& W. 758. ini>[»'tassent is one. " It may be true," and received, the plaintiti seeks to recover Dewey J. said, "that a bill of particulars un- interest, other counts must be inserted ac- der this count would not necessarily give the cordingly; and he can only recover interest items of the indebtedness, and that the items fromi of the writ, unless in his dec- of the dealings between the parties need not laration he a _ - i demand before that be shown in proof on the trial on such a count. time. Ordwa; I »rd, 14 Allen, 59. In But we see no objection to a bill of particu- Chapman J. said, " A special de- lars stating all the items of the indebtedness, maud, which entitles the plaintiff to interest and showing the basis of the alleged in for the detention of money, is edness on the in simul computassent, ii the an important substantive fact to be proved, plaintiff elects to file such bill of particu- and should he stated."] lars." Kundlett v. Weeber, 3 Gray, 266, (A) This is the form given by the act: 267.] ed not run " by and between (<) The sum mentioned here need not be them enham v. Chain ML & the precise amount of the plaintiff 's claim, W. 128; 6 DowL 101 : Robinson v. May, 6 nor need the costs be included, but the sum I Under a declaration upon an should be sufficient to cover the whole of the ■:, the cause of action is the plaintiff's claim, including any interest to . ement of the parties to pay the amount the time when judgment will be recovered. due upon the accounting, and not any writ- Watkins v. Morgan, 6 C. & P. 661. If not ten instrument. This amount may he made claimed at the trial, it cannot be obtained up of various items, and may include sums afterwards. Baker v. Brown, 2 M. & W. ipon written instruments as well as 199. The sum claimed may be increased by upon oral agreements. The evidence to amendment at the trial. COMMON COUNTS. 35 Warehouse room. — For warehouse room famished by the plaintiff for the Storage of certain jjoods of the defendant. Horse and carriage hire. — For the use of a certain horse ami carriage hired of the plaintiif by the defendant. Use and occupation. — For the use and occupation of a certain tenement hired of the plaintiff by the defendant. See Warren v. Ferdinand, 9 Allen, 357. /// simul cornputassent. — For the balance found due to the plaintiff by the parties on accounting together. Cliarman v. Henshaw, 15 Gray, 293. Account annexed. — And the plaintiff says the defendant owes him dollars, according to the account hereto annexed. See 1 Chitty PI. 851, note (s 1 ), where the cases relating to the practice under this count are cited and stated. Johnson v. Trinity Church Society, 11 Allen, 123; Mullett v. Bemis, 10 Mass. 92.] 2. The Common Count when the Declaration contains prior Special Ones. And the plaintiff also sues the defendant for money payable by the defend- ant to the plaintiff for [fyc. as in the last form, concluding] And the plaintiff claims £ . (k) PARTICULARS OF DEMAND TO BE DELIVERED WITH THE INDEBITATUS COUNTS. (7) Obs. — By the Rules of H. T. 1853, rule 19, with every declaration (unless the writ has been specially indorsed under the provisions contained in the 25th sec- (k) Where the declaration contains special is brought to recover " the amount of the counts on contracts as well as the indebita- note," the plaintiff cannot give evidence of tus count, or counts in tort, the sum claimed the consideration ; and therefore, if the note must be sufficient to cover any amount of be not produced or be not admissible in evi- damages the jury may be likely to give the dence, the whole action will fail ; Wade v. plaintiff, taking care not to claim a ridicu- Beasley, 4 Esp. 7 : Brown v. Watts, 1 Taunt, lously excessive sum As to the conclusion 353 ; and that even although the particulars in " Detinue," " Mandamus," " Injunction," specify that "for the recovery thereof the &c. see those titles. plaintiff will avail himself of the whole or (/) It is not necessary or advisable to give any part of the declaration:" Hedley v. particulars of a count on a bill of exchange Bainbridge, 3 Q. B. 316; Roberts v. Els- or other special count ; Brookes v. Farlar, 3 worth, lo M. & \V. 653 ; but where there is Bing. N. C 291 ; Day v. Davies, 5C. &P. 340; evidence of an admission amounting to an Gould v. Coombes, 1 C. B. 543; but where actual account stated between the parties, it the plaintiff sues on a bill or note, and has may be given in evidence under particulars given the defendant consideration for it in asserting that the sum was due on the con- money or g Is, &c. the particulars of the si derations to which the admission related. latter items should be inserted as above; so, Simmon, r. Wood, 5 Q. B. 170. [Under the where the bill or note itself is evidence practice act of .Massachusetts, in actions of between the parties of an account stated, or contract, when cither of the common counts there is any reason to suppose that an ad- is used, the plaintiff shall file a bill of par- mission or promise to pay the amount of the riculars with his writ, when the action is en- bill or note has been made by the defendant, tered. The items in such bill shall be deemed amounting to an account stated, it would be to be numbered consecutively, and it shall be advisable to add to the foregoing account a deemed to be part of the record and be au- Btatement, thus : "Under the count on the swered or replied to as such. Genl. Sts. c. account stated, the plaintiff also seeks to re- 12!», § 10; Rundlett o. Weeber, 3 Gray, 266. cover the sum of .£ " {the amount of '/»■ The want of a hill of particulars under the bill mentioned inthejirst count) ["in addition" common counts furnishes ground to move [if the fact be so) "to the balance, or "sum," the court to order such a bill to lie filed, or 'due on the foregoing account."] See Bob- to demur to the count ; but it cannot be ob- erts v. Elsworth, I" M. & W. 653. If the par- jeeted to by the defendant after the trial has ticulars in such case only state that the action begun. Preston v. Xeale, 12 Gray, 222; 36 DECLARATIONS ON CONTRACTS. Obs. tion of the common law procedure act, 1852) delivered or filed, containing causes of action such as those set forth in schedule. B of that act, and num- bered from I to 14 inclusive, or of a like nature, the plaintiff shall deliver or file full particulars of hi- demand under such claim, where such particulars can be comprised within three folios; and where the same cannot be comprised within three folios, lie shall deliver or file such a statement of the nature of his claim, and the amount of the sum or balance which he claims to be due, as may lie comprised within that number of folios; and with every plea of set- off containing claim- of a similar nature as those in respect of whicha plaintiff i- required to deliver or file particulars, the defendant shall in like manner deliver particulars of his set-off. And to secure the delivery or filing of par- ticulars in all such cases, it is ordered that if any such declaration shall be delivered or fded, or any plea of set-off delivered, without such particulars or such statement as aforesaid; and a judge shall afterwards order a delivery of particulars, the plaintiff or defendant, as the case may be, shall not be allowed any costs in respect of any summons for the purpose of obtaining such order, or of tin' particulars he may afterwards deliver; and a copy of the particulars of the demand and set-off shall be annexed by the plaintiff's attorney to every record at the time it is entered with the proper officer. By the Pleading Rules of Trin. T. 1853, rule 13, "in any case in which the plaintiff (in order to avoid the expense of the plea of payment or set-off) shall have given credit in the particulars of his demand for any sum or stuns of money therein admitted to have been paid to the plaintiff, or which the plaintiff admits the defendant is entitled to set-off, it shall not be necessary for the defendant to plead the payment or set-off of such sum or sums of money." 11 But this rule is not to apply to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance, without giving credit for any particular sum or sums; or to cases of set-off where the plaintiff does not state the particulars of such set-off." And by rule 14, " payment shall not in any case be allowed to be given in evidence in re- duction of damages or debt, but shall be pleaded in bar." The particulars should specify dates, items, and amounts; [see Kellogg v. Paine, 8 How. Pr. 329; Wetmore v. Jennys, 1 Barb. 53; Seaman v. Low, 4 Bosw. 338; Moran v. Morrissey, 28 How. Pr. 100; Smith v. Hicks, 5 Wend. 48:] and be comprised if possible within three folios. Chit. Arch. 1360. They should be so specific as not to mislead a reasonable man, as by confusing a claim of salary with one for commission. Law v. Thompson, 15 M. & W. 545; Richard r. Nelson, 16 M. & W. 772; 4 D. & L. 693; Rennie v. Beresford, 15 M. & W. 78; Higodns v. Ede, lb. 77. See form of particulars by a surveyor; Irving v. Baker, 15 L. J. Q. B. 322; by a broker, for price of scrip bought for the ac- count. Berkley v. De Vere, 4 D. & L. 9 7. As to how far the plaintiff will at the trial be confined to his particulars, see Chit. Arch. Pr. 1389; [Bowman v. Earle. 3 Duer. 691; Babcock v. Thompson, 3 Pick. 446; Commonwealth v. (dies, 1 Gray, 469.] Particulars need not be delivered under special counts, or counts on bills of exchange or promissory notes. [See Ives v. Shaw, 31 How. Pr. 54 ; Tebbetts v. Pickering, 5 Cush. 83.] Crediting Payments. — A plaintiff cannot be compelled, in a court of common law, to furnish evidence against himself by admitting payment. Randal v. Ikey, 4 Dowl. 682. All he need state in his particulars are the items of his own de- Tebbetts v. Pickering, 5 Cu>h. 83. Where information as a special declaration, so th;it tlii- declaration consists of a count on an ac- the defendant may know the real ground of ■' ant annexed, but no bill of particulars is the action. Babcock v. Thompson, 3 Pick, filed upon the entry of the writ, the count 446. A bill of particulars is regarded as au may he amended by annexing such a bill, amplification of the pleading to which it re- Burgess v, Bugbee, 100 .Mass. 152. Provi- lates, and is to be considered as forming a sion is made by the New York Code, § 158, part of it ; Bowman v. Earle, 3 Duer, 691 ; 'or the furnishing of bills of particulars. The Brown v. Williams, 4 Wend. 368 ; giving to it iffice of a hill of particulars i- to prevent a more certainty. Booth v. Howard. 2 Dowl. surprise on the trial ami not to furnish evi- 438; Farcy v. Lee, 10 Abb. Pr. 143. But it fence. Drake v. Thayer, 5 Rob. 694 ; Brown is considered sufficient, if it fairly apprise --. Willi: ins, 4 Wend. 368 ; Waring v. Mon- the opposite party of the nature of the roe, 4 Wend. 200. It should give as much claim. Brown v. Williams, 4 Wend. 368.] COMMON COUNTS. 37 Dbs. mi n.l, the amounl by which he admits it to be reduced (without stating how), and the balance for which he really proceeds; Smith v. Eldridge, I Ad. & E. 66; and see Penprase v. Crease, 1 M. & \V. 86; 4 Dowl. 711; and i! a iss sum be credited in the particulars as a payment, the court will nol com- pel the plaintiff to give particulars of the items, lb.; and Myatt v. Green, LS M. & W. 377; Fussey v. Gordon, 13 C. B. 847; Luck v. Handley, 4 Ex. L86 ; [Williams v. Shaw, i Abb. Pr. 209; Giles v. Betz, 15 Abb. Pr. 285.] If tli.' suuh really paid !).■ not credited in the particulars, the defendant may plead payment of them, ami gel the costs of that issue ; when they are credited, the plaintiff will nol be entitled to a verdict at all until In- has proved a demand greater than the amount of credited payments, ami then only for the excess.' Kenyon v. Wakes, 2 M. & W. 764; Eastwick v. Harman, «; M. & W. LS; Smethurst v. Taylor, L2 M. & W. 545; Rowland v. Blakesly, 1 Q,. B. 103. And a payment generally admitted, as thus, " Cr. by bills 1,500/.," is .-. .n-ii' I as a payment admitted to have been made by the defendant to the plaintiff". Smethurst v. Taylor, 12 M. & W. 545. The admission, however, in order to be binding, must be in the particulars themselves; Hart v. Middle- ton, '-' Car. & K. 9 ; and therefore, where the particulars referred to a bill already delivered, in which credit was given for eertain payments, it was held that tiiis was not a case of admitting payments within the rule, and that payment should have been pleaded. Bosley v. Moore, 8 Dowl. 375. The ad- mitted payment is put on the same footing as if there had been a plea of payment; but it cannot be taken as an admission as against the defendant with respect to anyo£ the items in the entire account; Goatley v. Herring, 12 L. J. C. P. 32. See, also, Townson v. Jackson, 13 M. & \V. 374; Turner v. Collins, 20 L. J. Q. B. 250. As by the rule it is unnecessary for the defend- ant to plead payment of any sum or sums of money admitted by the particulars to have been paid, a plea of payment in such cases will be taken to apply to the balance demanded; and this will be the case though some of the payments admitted have been made after action brought; Eastwick v. Harman, 6 M. & W. 18; 8 Dowl. 399; Alexander v. Porter, 1 Dowl. N. S. 832; Kenningham v. Alison, 2 Dowl. N'. S. 658; Nbsotti v. Page, 10 C. B. 643; and such a plea will be prima facie supported by evidence in proof of any payments what- soever; such evidence being liable to be rebutted by proof upon the part of the plaintiff that these payments are no other than those for which he has already given credit. Lamb v. Micklethwaite, 1 Q. B. 400; 9 Dowl. 531. The above rule enables the plaintiff to give credit for a set-off; formerly he could not do so; Rowland v. Blakesley, 1 Q B. 403. See, also, Morris o. Jones, 1 Q. B. 397; Townson v. Jackson, supra; Kilner v. Bailey, 5 M. & W. 382. See Form of Particulars, where debt paid after action. Nosotti v. Page, IOC. B. 643. In an action of tort for injury to the person, the court may, if there be reason- able ground for the application, order particulars to be given. Wicks v. Macnamara, 3 II. & N. 568. [Under the Massachusetts practice act, the court may in all cases order either party to file a statement of such particu- lars as may be necessary to give the other party, and the court, reasonable knowledge of the nature and grounds of the action or defence. Genl. Sts. c. 129, § 58. See Commonwealth v. Snelling, 15 Pick. 321 ; Turner v. Twing, 9 Cush. 515 ; Babcock v. Thompson, 3 Pick. 446.] 1. Form of Particulars to be delivered with a Declaration ivhich contain* only the Common Money Counts, where the Writ has not been specially indorsed, (in) In the . ( A. B., Plaintiff, Between < and ( C. D., Defendant. This action is brought to recover the sum of £50 due [or, if the plaintiff (m) It is irregular to deliver particulars and the plaintiff may then avail himself of if the writ has been specially indorsed, hut his particulars. Fremont p. Ashlev, 22 L. '.his is waived by the defendant going to trial, J. Q. B. 237. 38 DECLARATIONS ON CONTRACTS. AGENTS. gives the defendant credit for any payment or for a set-off, "£70 10s. the balance clue "] from the defendant to the plaintiff, ujion the following items of account : 1856, June 20. To 50 sacks of flour, at 60s £150 June 21. To 1 load meadow hay 5 £155 By cash paid by defendant to plaintiff ") qa -in n [at different times] (n) ) Balance £70 10 And the said plaintiff also seeks to recover the said balance upon accounts stated by the defendant, (o) Above are the particulars of the plaintiff's demand in this action. Dated this day of , A. d. 1858. Yours, &c. To Mr. X. Y., defendant's attorney ) J. V., plaintiff's attorney. [or « agent."] ) [If the full particulars cannot be comprised within three folios, then, instead of copying the debtor side of the account, say, " for butcher's meat," or, as the case may be, " supplied between the day of , &c. and the day of," fyc. crediting as before the actual payments or set-off, and adding, " Above are such particulars of the plaintiff's dem nd as can be comprised within three folios," $c. as before. See Rule 19 Hil. T. 1853.] 2. Form of Particulars to be delivered with the Declaration which contains Special Counts as well as the common Money Counts. The following are the particulars of the plaintiff's demand in this action under the common money counts of the declaration in this cause [as in pre- ceding form~\. ACCOUNT — ACTION OF. Obs. — A form of action rarely used. Strictly, it lay only against a bailiff or re- ceiver, and required him to render an account of moneys received by him as such bailiff or receiver. But, being found a most convenient form of action, it was extended to cases where the person called upon to account was neither bailiff nor authorized receiver, if he had in any way received and retained money which it was his duty to hand over to the claimant. See Selw. N. P. Account. Henderson v. Eason, 12 Q. B. 987; in error, 17 Q. B. 701; Gorely v. Gorely, 1 H. & N. 144; 4 Ann. c. 16, s. 27. ADMINISTRATORS. See " Executors," post. AGENTS. 1. By an Agent for Commission, $c. (jo) Commencement, fyc. as in Form 1, ante, and then proceed as follows :] for (n) Or if plaintiff gives credit for a set- (o) Effect of omitting this, see Hay Vi off, say, "And the plaintiff <;ives the defend- Fisher, 2 M. & W. 722; Eisher v. Wain- ant credit for a set-off which he has against wright, 1 M. & W. 487. him, amounting to £ , in respect of the (p) See, in general, [2 Cliitty Contr. (11th following items : viz." (setting them forth). Am. ed.J 803, and note (c) and cases cited] • DECLARATIONS ON CONTRACTS. AGENTS. 39 She work, journeys, and attendances of the plaintiff, as the agent of the defend- ant, and otherwise, on his retainer, and for commission and reward payable to the plaintiff in respect thereof, and for {money paid, if claimed and account stated, fyc. as ante, 33, 34, Form 1]. 2. Against an Agent for not accounting for Goods, £c. intrusted to Jam to sell. (c[) Commencement, ante, 5.] For that the plaintiff, at the request of the de- fendant, delivered (r) to the defendant, and he received from the plaintiff, cer- tain goods of the plaintiff, that is to say, \8jc. describing them generally,'] to be sold by the defendant for the plaintiff, for reward to the defendant [" upon the terms that the defendant should, when requested, render to him a true and just account of the sale of the said goods, and of the moneys arising from such sale, and deliver up to the plaintiff such of the goods as should remain unsold by the defendant, after a reasonable time from the sale of the said goods," (*)] and the defendant afterwards sold the same for and on account of the plain- tiff, (t) for divers sums of money ; *and although the plaintiff hath performed all conditions precedent on his part, and all things have happened and oc- curred, and all periods of time have elapsed to entitle the plaintiff to a per- formance of the defendant's contract, and to enable the plaintiff to maintain this action, (a) *yet the defendant hath not rendered to the plaintiff a just and Storv on Agency. The common count for work done, ante, 33, Obs. would suffice. See Carruthers v. Graham, 14 East, 578; Solly v. Weiss, 8 Taunt. 371 ; as to an in- debitatus count for a del credere agent's com- mission. See the form of a special declara- tion in assumpsit, by an agent employed to buy goods and draw a bill on his principal for the amount, against the principal, for not indemnifying him against the bill. Huntley v. Sanderson, 1 Cr. & M. 467. [See form of declaration, pleas, and replication, in an action by an agent against his principal for not re- ceiving goods purchased by principal's order. Ireland v. Livingstone, L. R. 2 Q. B. 99 ; S. C. 36 L. J. Q. B. 50. By a factor employed to sell goods according to description, against his employer for delivering goods not equal to the description, whereby the plaintiff was unable to fulfil his contract. Johnson v. Usborne, 11 Ad. & E. 549.] Ev- idence in action for broker's commission ; Wilkinson v. Martin,' 8 C. & P. 1 ; Burnett v. Bomb, 9 C. & P. 620 ; [Rice v. Mayo, 107 Mass. 550 ; Erie C. J. in Green v. Bartlett, 14 C. B. N. S. 681, 685 ;] or ship-broker for commission; Hill v. Kitchin, 3 C. B. 299 ; Smith v. Boutcher, 1 Car. & K. 573 ; duty of insurance broker; Callendar v. Oelricks, 4 Bing. N. C. 58 ; commission recoverable by land agent; Murray v. Currie, 7 C. & P. 5*4. As to agent's right to commission or to sue on a quantum meruit where his authority has been revoked, or his principal has pre- vented him from earning his commission, see Prickett v. Badger, 1 C. B. N. S. 96 ; 26 L. J. C. P. 33 ; [Glen v. Davidson, 37 Md. 365, 367.] London brokers may sue for ad- vances, although not licensed pursuant to 6 Ann. c. 16, but not for commission. Jessop v. Lutwyche, 10 Ex.614; Smith v. Lindo, 4 C. B. N. S. 395. An unlicensed appraiser cannot recover commission. Palk v. Force, 12 Q. B. 666. [An agent was shareholder in a company, and was employed to sell land ; he sold it to the company. Held not entitled to commission from the vendor. Sal- omons v. Pender, 3 H. & C . 639 ; S. C. 34 L. J. Ex. 95.] (q) See form ; Crosskey v. Mills, 1 Cr., M. & R. 298 ; and see post, Declarations in Case, title, "Agents." [Washington v. Eames, 6 Allen, 417, 419.] (/) Or, if the goods were not delivered to the defendant, or in his power, allege that plaintiff employed defendant to sell, &c. (s) These are the terms implied by law, as " whenever one acts as bailiff' he promises to render an account ; " Bull. N. P. 148 ; and the law will also imply a promise to account for such goods as are not sold, and to return them to plaintiff. Topham v. Braddick, 1 Taunt. 572. The words in brackets may be omitted, as it is not now necessary to allege promises which need not be proved. Com. Law Pro. Act, 1852, s. 49. (t) This, if traversed, would require ev- idence of a sale by defendant ; Elbourn v. Upjohn, 1 C. & P. 572 ; but after a reason- able time a sale will be. presumed ; Hunter v. Welsh, 1 Stark. 224 ; [Burnap v. Partridge, 3 Vt. 144.] If the sale by defendant cannot be proved, the breach should be for not ac- counting for the goods on being requested. («) This averment is framed under the provisions of the C. L. P. Act, 1852, s. 57. If the defendant denies the performance of any condition precedent, he must plead it 40 DECLARATIONS ON CONTRACTS. AGENTS. true or any account of the sale of the said goods, or of the moneys (a;) arising from such sale, nor hath the defendant delivered up to the plaintiff any goods unsold as aforesaid [add the common count for money had and received, if provable, and the account stated~\. 3. Against an Agent for not using due Care in selling Goods. Commencement, ante, 5.] For that the plaintiff, at the defendant's request, employed the defendant, for reward, to sell and dispose of certain goods, that is to say, sugar, for the plaintiff, and delivered the goods to the defendant, who received the same for that purpose ; yet the defendaut did not use due care or diligence in endeavoring to sell or selling and disposing of the said sugar for the plaintiff, (y) but sold and disposed of the same for less than could and might have been gotten and received for the same, and thereby also the said sugar became wasted and deteriorated in value, and the plaintiff incurred expenses, in warehousing and keeping the same, and is otherwise damnified. [ Conclude as before.~\ [3a. Against an Agent employed to purchase Goods, for Negligence in accepting Goods not agreeing with the Description in the Contract. Zwilchenbart v. Alexander, 1 B. & S. 234.] 4. Against an Agent employed to sell Goods, for not obeying the Orders of his Principal. Commencement, ante, 5.] For that the plaintiff, at the defendant's request, employed him, for commission and reward, to sell goods, that is to say, sugar, for the plaintiff, upon the terms that the defendant should use due care and diligence in obeying the lawful and reasonable orders of the plaintiff to be given by him to the defendant in regard to the sale of the said sugar; and the defendant received, and had such sugars in his possession and charge upon the terms and for the purpose aforesaid ; and the plaintiff afterwards ordered and directed the defendant, as such agent, to sell the said sugar for the plaintiff, at a certain price, and not less, in case the same could be obtained by using due specifically ; see Rust v. Xottidge, 1 El. & from the purchaser, was held liable in the Bl. 99, where an allegation or an averment above form for the full produce of the goods ; of readiness and willingness of performance Brown v. Staton, 2 Chit. Rep. 353 ; but if ■was sufficient without. This general aver- the goods are sold on credit, with the consent ment is sufficient, if the condition has been of the seller, an action will not lie against dispensed with by the other party. See Cort the agent for not paying over the produce, v. The Ambergate &c. Ry. Co. 17 Q. B. unless the delay in the' payment has been oc- 127; Manby v. Cremonini, 6 Ex.808. See casioned by the agent's neglect, or the trans- Grey v. Quin, 15 Q. B. 901. If a request is action been closed. Varden v. Parker, 2 put in issue it must be proved. Topham v. Esp. 710. The remittance of the proceeds is Braddick, 1 Taunt. 572. at defendant's risk, as it is his duty to pay (x) It will be observed that this count does over. Lucas v. Groning, 1 Stark. 392. not charge the receipt or non-payment of the (y) If the defendant carelessly sold to an proceeds. The common count will be proper insolvent person, the form should be : " and in order to recover the moneys received by then carelessly and improperly sold the said defendant. Although no money may have sugar for the "plaintiff to a person in bad and been received so as to charge the agent with embarrassed circumstances, without receiv- the proceeds, he may be liable; for refusing ing the price of the said sugar, or taking to render an account of the sale; therefore security for the payment thereof; and the the special count should be inserted w hen it plaintiff, by reason of the premises, is likely can be maintained. An auctioneer who to lose the" price of the said sugar." delivered goods without receiving the price DECLARATIONS ON CONTRACTS. AGENTS. 41 and reasonable care and diligence in that behalf, the same being a lawful and reasonable order and direction in that behalf, as the defendant well knew; and although the defendant could, by using due care and diligence, have obtained, and ought to have obtained, for the said sugar, the said price, yet the defend- ant did not use due care or diligence in obeying the said order and direction of the plaintiff, and disobeyed the same, and neglected to sell the said sugar according to such order and direction ; and by reason thereof the plaintiff was forced to suffer the said sugar to be sold for a less price, and thereby the plaintiff sustained a great loss upon and in respect of the price and value of the said BUgar, and the said sugar was also wasted and deteriorated in value, and the plaintiff incurred expenses in warehousing and keeping the same, and was otherwise injured. 5. Against an Agent for disobeying Plaintiff's Directions in effecting a different Insurance on Goods shipped than the one required, and not giving Plaintiff Notice of the Failure to effect the latter In- surance. Callendar v. Oelricks, 4 Bing. N. C. 58. See a form in " case," Turpin v. Bilton, 5 M. & G. 455. 6. Against an Agent for Negligence in effecting a Policy on Goods. Cahill v. Dawson, 3 C. B. N. S. 106; 26 L. J. C. P. 252. 7. Against an Agent appointed to sell Goods at stated prices, for selling part at less prices ; for not accounting for those sold ; and not delivering up the remainder of the Goods. Commencement, ante, 5.] For that the plaintiff, at the defendant's request, employed him, for commission and reward, to sell certain chaises, gigs, and other carnages of the plaintiff, at and for certain prices respectively to be stated to the defendant by the plaintiff, and upon the terms that the defendant should render to him a just and true account of the sale thereof, and deliver to the plaintiff such of the chaises, gigs, and other carriages as should remain unsold by the defendant when requested ; and although the defendant received divers chaises, gigs, and other carriages of and from the plaintiff upon the terms aforesaid, and the plaintiff stated the prices of the same respectively to the defendant, yet the defendant, without the consent of the plaintiff, sold some of (he said chaises, gigs, and other carriages at much smaller prices than the prices so stated to him by the plaintiff, and the defendant hath not, although requested by the plaintiff so to do, rendered to the plaintiff a just and true or other account of the said sales, or delivered up to him the said plaintiff the residue of the said chaises, gigs, and other carriages which re- mained unsold, although a reasonable time from the delivery of the said goods to the defendant and the time of the said sales hath elapsed. [Add money had and received, if defendant has not paid over what he has received, and also account stated and breach, ante, 35, Form 2.] 8. Against a Factor for selling contrary to Orders. Smart v. Sanders, 3 C. B. 380 ; 5 C. B. 895. 4.- DECLARATIONS ON CONTRACTS. AGENTS. 9. Against an Auctioneer for selling on Credit, (z) Commencement, ante, 5.] For that the plaintiff delivered certain goods of the plaintiff to the defendant, and, at the defendant's request, retained the defendant as an auctioneer, to sell and dispose of the same for the plaintiff, for reward to the defendant, upon the terms that the defendant should not sell or dispose of the said goods otherwise than for ready money. And although the d< fendant accepted the said retainer, and received the said goods on the terms and for the purpose aforesaid, yet the defendant sold and disposed of the said goods on credit and otherwise than for ready money, without the plaintiff's consent, whereby the plaintiff hath hitherto lost and is likely wholly to lose the price and value of the said goods. 10. Against a Commission Agent, who undertook to sell a Library for Plaintiff, and to be responsible for the proceeds of the sale in con- junction with the Auctioneer. Cholmondeley v. Payne, 8 C. & P. 482. 11. Against the Captain of a Ship or an Agent at the suit of the Owner for not procuring a sufficient Cargo. Commencement, ante, 5.] For that the plaintiff was the owner of a vessel lying in the river Thames waiting for a cargo, to be conveyed therein for and upon freight and reward to be paid to the plaintiff, and bound from thence upon a certain voyage ; and the plaintiff, at the request of the defendant, retained and employed him to obtain and procure a cargo on freight for the said vessel for reward to the defendant in that behalf, (a) and although the defendant accepted the said retainer, yet the defendant did not use due dili- gence, care, nor attention in and about the endeavoring to procure such cargo on freight for the said ship or vessel ; but then so carelessly, negligently, and improperly behaved and conducted himself in and about the premises that by (z) See form in Earl of Ferrers v. Rob- Willes R. 406 ; Houghton v. Mathews, 3 B. & ins, 2 Cr., M. & R. 152; and see a form in P 489; [De Lazard v. Hewitt, 7 B. Mon. 697 ; case against a broker. Boorman v. Brown, Brigham v. Baehe, and Randolph i: Hollin^s- 3 Q. B. 510. An auctioneer cannot without worth, cited 1 Yeates, 487: Lausatt v. Lippen- express authority sell goods by auction on cott, 6 Serg. & R. 392 ; Delafield v. Illinois, 26 credit. Brown v. Staton, 2 Chit. R. 353. Wend. 192; S. C. 8 Paige, 527 ; 2 Hill, 159; [Nor can he take a bill of exchange. Wil- Byrnev. Schwing, 6 B. Mon. 199. 1 A factor, Bams v. Evans, 35 L. J. Q. B. 112; S. C. 1 without special instructions to sell for cash Q. 11.352. It is not usual to sell stock on alone and not on credit, may sell on credit for credit. Henderson v. Barnewall, 1 Y. & J. the period usual in the market. Forrestier v. 387; Wiltshire v. Sims, 1 Camp. 258. And Bordman, 1 Story, 43; Russell v. Phillips, 1 accordingly a stock-broker, or auctioneer, has Gall. 360 ; Goodenow v. Tyler, 7 Mass. 36 ; no authority to act in opposition to the cus- Clark v. Van Northwick, 1 Pick. 343 ; Hap- tom in this respect without the express order good v. Batcheller, 4 Met. 573, 576 ; Greely of his principal. See Delafield u. Illinois, 26 v. Bartlett, 1 Greenl. 172; Van Alden v. Wend. 192 ; S C. 2 Hill, 159 ; Ives v. Daven- Vanderpool, 6 John. 69 ; M'Kinstry v.Pear- pnrt. 3 Hill, 374. If an agent or factor, au- sail, 3 John. 319; Robertson v. Livingston, theorized to sell only for cash, sells on cred- 5 Cowen, 473 ; Leverick v. Meigs, 1 Cowen, it, he becomes immediately responsible to his 645; Symington v. McLin, 1 Dev. &B. 291; Jirincipal for the entire amount of the debt. M'Connico v. Curzen, 2 Call, 358 ; Hamilton 'arsons v. .Martin. 11 Gray. 115; Walker v. v. Cunningham, 2 Brock. 331 ; Barksdale v. Smith, 4 Dallas, 389.] "When customary Brown, 1 Nott & McC 517 ; Pourie v. Fraser, to -'11 on credit, an agent has implied author- 2 Bay, 269.] ity to sell on such terms. Scott v. Surman, (a) See ante, 39, note (s). DECLARATIONS ON CONTRACTS. AGENTS. 43 reason thereof the plaintiff was obliged to dispatch the said vessel on her said intended voyage with a much less cargo or quantity of goods than the said vessel was capable of receiving and containing, and the defendant might and ought to have procured for the same on freight as aforesaid, before the said vessel sailed ; and thereby the plaintiff lost freight and gains and profits which would otherwise have accrued to him. 12. Second Count for not properly Stowing the Cargo. (5) And also, for that the plaintiff retained and employed the defendant at his request to superintend and direct the loading and stowing of the cargo of a certain ship of the said plaintiff* bound on a certain voyage, in and on board the said ship, for reward to the defendant ; and although the defendant ac- cepted and acted upon the said retainer, yet the defendant did not use due care or attention, skill or diligence in and about the loading and stowing the cargo of the said ship in and on board the same, but caused the same to be loaded and stowed on board the same in so careless, unskilful, and improper a manner, that by reason thereof the said ship could not hold as much freight or cargo as the same would otherwise have reasonably held ; and the said plaintiff was compelled to dispatch the said ship on her said voyage with a smaller carijo than he otherwise would have had on board thereof, and was obliged to decline to receive on board woods which he otherwise would have taken on freight ; and thereby lost gains and profits which would have arisen to him from having a full cargo in and on board of the said ship. 13. Against a Shipping Broker, the Proprietor of a Shipping Office, for not forwarding Plaintiff's Goods by a Vessel proceeding abroad. Commencement, ante, 5.] For that the defendant was a shipping broker and agent, and the proprietor of an office for the reception of goods to be forwarded and sent by a vessel proceeding from the port of London to France, and for keeping such goods until the same should be delivered by the defend- ant, within a reasonable time, to the master or crew of such vessel, to be shipped on board for the purpose aforesaid, for reward to the defendant in that behalf ; and thereupon the plaintiff, at the defendant's request, delivered to the defendant, at his office, certain goods, upon the terms that the same should be by the said defendant kept in the said office until the same should be delivered by him, within a reasonable time, to the master or crew of a vessel about to proceed from the port of London to France, for the purpose aforesaid, for reward to the defendant in that behalf ; and although the defendant then re- ceived the said goods upon the terms aforesaid, and such vessel did, within a reasonable time, proceed from the port of Loudon to France, and the defend- ant could and might and ought to have delivered the said goods to the master or crew of such vessel for the purpose aforesaid, and such reasonable time hath elapsed, yet the defendant did not, within such reasonable time, deliver or cause to be delivered the said goods to the master or crew of such vessel (h) As to liability of captain for bad stow- liability of tbe captain in other respects, on aae where stevedore employed; Blakie v. contracts relating to the employment, &c. Stembridge, 6 C. B. N. S. 894*; [Swanston v. of the ship, see 1 Chitty PI. 41, note («), Garrick, 2 L. J. N. S. Ex. 255; as to the and cases ' nip, a.] 44 DECLARATIONS ON CONTRACTS. AGENTS. for the purpose aforesaid, and wrongfully and carelessly kept and detained the same in his office for an unreasonable time ; and the said goods were not carried in or by the said vessel, and perished, and became and were of no use or value, and the plaintiff thereby lost clivers gains and profits from the sale thereof, and was and is otherwise damnified. \If the defendant has been guilty of a conversion of the goods, a count for such conversion may be added.~\ And the plaintiff claims £ . 14. Against the Payee of a Bill of Exchange for not taking it up with Money furnished to him by the Plaintiff, whereby the Plaintiff was sued on the Bill. Commencement, ante, 5.] For that the plaintiff, at the defendant's request, delivered to him a certain sum of money, for the purpose of taking up and dis- charging, and upon the terms that the defendant would therewith take up and discharge when due, a certain bill of exchange, dated [$■£•]' an ^ m &de and drawn by the plaintiff upon and accepted by one J. "NY., whereby the plaintiff required the said J. W. to pay, two months after the date thereof, to the said defendant or order, the sum of £ , value received, and which bill of ex- change was indorsed by the defendant; and although the said bill of exchange afterwards became due and payable, whereof the defendant had notice, yet the defendant did not nor would take up or discharge the said bill of exchange when the same became due and payable, or at any time afterwards, but wholly refused and neglected so to do, and by reason thereof one X. Y., being the holder of the said bill, brought an action at law against the plaintiff here upou the said bill for the recovery of the amount thereof, and the plaintiff necessa- rily paid the amount of the said bill to the said X. Y., together with the costs of the said action, and thereby also the plaintiff incurred expenses in defend- ing the said action. [ When a count for money had and received is maintain- able, it should be added (Ehrensperger v. Anderson, 3 Ex. 148 ; 18 L. J. Ex. 132 ; Buchanan v. Findlay, 9 B. & C. 738; Fletcher v. Marshall, 15 M. & W. 755) and a count on an account stated.] [15. Against an Agent for not using Due Care and Diligence in collect- ing Moneys. That in consideration that the plaintiff would employ the defendant as his agent to collect certain moneys owing from divers persons to the plaintiff, for reward to the defendant, the defendant promised the plaintiff to use due care and diligence in endeavoring to collect the same for the plaintiff; and the plaintiff employed the defendant accordingly for the purpose and on the terms aforesaid, and a reasonable time for the performance of the said promise by the defendant elapsed ; yet the defendant did not use due care or diligence in endeavoring to collect the said moneys for the plaintiff, whereby the plaintiff has hitherto been deprived of the use of the said moneys, and is likely to lose the same. Against an Agent employed to get Bills discounted, for not discounting or returning them ; Mullett v. Hutchinson, 7 B. & C. 639 ; Alder v. Keighley, 15 M. & W. 116; for not applying the proceeds according to his Instructions ; Hart v. Miles, 4 C. B. N. S. 371. DECLARATIONS ON CONTRACTS. AGENTS. 45 Against an Agent employed as Manager of a Bank, for negligently advancing Money on Bad Security. Ward v. Greenland, 19 C. B. N. S. 527.] 16. Against an Agent on his Implied Promise that he had Authority from his Principal to sell Goods to the Plaintiff, (g) Commencement, ante, 5.] For that the defendant, by representing and war- ranting- to the plaintiff that he, the defendant, was the agent of E. F. for the sale of certain goods, as such pretended agent of the said E. F. bargained and agreed with the plaintiff to sell to him on behalf of the said E. F. and sold to the plaintiff certain goods to be delivered to the plaintiff by the said E. F. on [&cJ], at a certain price [fyc. stating the terms of the contract}. And the plain- tiff [here aver performance of conditions precedent as ante, 39, between the * *], yet the defendant was not the agent of the said E. F., and had no power or authority from the said E. F. to sell the said goods to the plaintiff, whereby the said agreement was void; and by reason thereof, and of the refusal of the said E. F. to deliver the said goods to the plaintiff on the terms aforesaid, the plaintiff was deprived of the benefit and advantages he would have derived and acquired from the completion of the said agreement, and incurred ex- penses in endeavoring to enforce the said agreement and in prosecuting an action against the said E. F. for the non-delivery of the said goods [or " in prosecuting a suit in equity against the said E. F. for the specific performance of the said agreement" (c?)]. And the plaintiff claims £ . (c) A person who contracts as agent can- not in general be sued as a principal on the contract. [Jenkins v. Hutchinson, 13 Q. B. 744. 752; Carr v. Jackson, 7 Ex. 382; Jefts v. York, 4 Crash. 371 ; S. C. 10 Cush. 392 ; Long v. Colburn, 1 1 Mass. 97 ; Ballou v. Talbot, 16 Mass. 461 ; Sherman v. Fitch, 98 Mass. 63; Kingman v. Kelsie, 3 Cush. 339 ; Harper v. Little, 2 Greenl. 14 ; Stetson v. Patten, 2 Greenl. 358 ; Ogden v. Ray- mond, 22 Conn. 385 ; McHeury v. Duffield, 7 Blackf. 41 ; Hopkins v. Mehaffy, 11 Serg. & R. 126 ; Abbey v. Chase, 6 dish. 56, 57 ; Moor v. Wilson," 26 N. H. 432; Draper v. Massachusetts Steam Heating Co. 5 Allen, 338 ; Taylor v. Shelton, 30 Conn. 122 ; Shef- field v. Ladue, 16 Minn. 388 ; Duncan v. Niles, 32 111. 532.] But a person so contracting impliedly warrants that he has the author- ity of his pretended principal to enter into the contract ; and if he has not such author- ity, is liable in damages to third parties who innocently contract with him — although he acted, bond fide, under a mistaken belief that lie had such authority. Lewis v. Nichol- son, 18 Q. B. 503 ; Collen v. Wright, 7 El. & Bl. 301 ; affirmed in error, 27 L. J. Q. B. 215 ; Randell v. Trimen, 18 C. B. 786; Simons v. Patchett, 7 El. & Bl. 568 ; [God- win v. Francis, L. R. 5 C. P. 295; Richard- son v. Williamson, L. R. 6 Q. B. 276; Smout v. Ilberv, 10 M. & W. 10 ; Polhill v. Walter, 3 B. & Ad. 114 ; Pow v. Davis, 1 B. & S. 220 ; Spedding v. Nevell, L. R. 4 C. P. 212 ; Taylor v. Shelton, 30 Conn. 128 ; Shaw C.J. in" Jefts 17. York, 10 Cush. 393, 395; Baltzen v. Nicolay, 53 N. Y. 469 ; Kingman v. Kelsie, 3 Cush. 341 ; Long v. Colburn, 11 Mass. 97 ; Webster v. Lamed, 6 Met. 528; Feeter v. Heath, 11 Wend. 477; Meech v. Smith, 7 Wend. 315 ; White v. Madison, 26 N. Y. 117, 124 ; Layng v. Stewart, 1 Watts & S. 222 ; Beattie v. Lord Eburv, L. R. 7 Ch. Ap. 777 ; Royce v. Allen, 28 Vt. 234 ; Dusenbury v. Ellis, 3 John. Cas. 70 ; Clark v. Foster, 8 Vt. 98 ; Sinclair v. Jackson, 8 Cowen, 543 ; Bank of Hamburg v. Wray, 4 Strobh. 87 ; Johnson v. Smith, 21 Conn. 627 ; Keener v. Harrod, 2 Md. 63. The agent, in this event, would be liable in a special action on the case. Jefts v. York, supra ; Bartlett v. Tucker, 104 Mass. 336 ; Noyes v. Loring, 55 Maine, 408 ; McCurdv v. Rogers, 21 Wise. 197, 202.] And if" he fraudulently misrepresent the existence or extent of his authority, he is liable to an action in tort for the "deceit. [Jervis C. J. in Randell v. Trimen, 18 C.B. 786, 794; Cherrv v. Colo- nial Bank of Australasia, L. R. 3 P. C. 24.] ('/) As to these damages, see Collen v. Wright, ubi supra. [The measure of dam- ages in this action is the loss which the plaintiff has sustained, by reason of the sup- posed contract not being binding ; thus, where the contract was for the sale of a ship at a certain price, which the plaintiff after- wards resold at a less price, the measure of damages was the difference in price. Simons v. Patchett, 7 El. & Bl. 568. And where the contract was for the purchase of goods, the measure of damages was the difference be- tween the contract price and the value of the goods, under the same circumstances. Hughes v. Graeme, 33 L. J. Q. B. 335. The •16 DECLARATIONS ON CONTRACTS. AGISTMENT. 17. Against a del credere Agent, on his Guaranty, (e) Commencement, ante, 5.] For that the plaintiff, at the defendant's request, retained and employed him, for commission and reward to him in that behalf, to sell and dispose of certain goods for the plaintiff, upon the terms that the defendant should be responsible to him for the price of the said goods, if sold, when the same should become due on such sale; and the plaintiff delivered the said goods to the defendant, and the defendant accepted the said retainer, upon the said terms, and sold and disposed of the said goods for the plaintiff to one E. F. for a large sum of money; and although the credit and time of payment for the price of the said goods by the said E. F. hath elapsed, and the plaintiff [here aver performance of conditions precedent, as ante, 39, between the * *], yet the said E. F. did not pay, nor hath the defendant paid to the plaintiff, the price of the said goods or any part thereof. \_If defendant has received the price, add a count for money had and received, and on accounts stated, and conclude .•] And the plaintiff claims £ . [Like counts. Randell v. Trimen, 18 C. B. 786 ; Simons v. Patchett, 7 El. & Bl. 568. Count against a broker on an implied warranty of authority to sell goods to the plaintiff. Hughes v. Graeme, 33 L. J. Q. B. 335. Count against an agent on a warranty that he had authority to let certain premises to the plaintiff, who was afterwards ejected therefrom by the owner Pow v. Davis, 1B.&S. 220.] AGISTMENT. (/) 1. Commencement, fyc. as in Form 1, ante, 33, and then proceed as fol- lows :] for the agistment, feeding, and taking care of horses and cattle by the plaintiff is entitled to recover as special afterwards sued in ejectment by the owner, damages the costs of an unsuccessful action he could not recover against the supposed against the alleged principal on the contract ; agent the costs of defending the ejectment. Randell v. Trimen, 18 C. B. 786; and see Pow v. Davis, 1 B. & S. 220; Spedding v. Richardson v. Dunn, 8 C. B. N. S. 655 ; or of Nevell, L. B. 4 C. P. 212 ; Godwin v. Fran- an unsuccessful suit for specific performance ; cis, L. R. 6 C. P. 295.] Collen v. Wright, 7 El. & Bl. 391 ; if such (e) See 1 Chitty Contr. (11th Am. ed.) 275, action or suit would have been a valid and and notes ; Story on Agency ; Smith's Mer- appropriate remedy against the principal cantile Law, 416; Morris v.'Cleasby, 4 M. & but for the want of authority in the agent Sel. 566. It is not necessary that his en- to bind him. Hughes v. Graeme, 33 L. J. gagement should be in writing. Couturier v. Q. B. 335; Pow v. Davis, 1 B. & S. 220. Hastie, 8 Ex. 40; 9 Ex. 102; 5 H. L. The liability to pay such costs is sufficient to Cas. 673 ; Wickham v. Wickham, 2 K. & J. sustain the claim for special damage ; Ran- 478; [Tanvaco v. Lucas, 1 El. & Bl. 581; dall v. Roper, 1 El., Bl. & El. 84 ; Spark v. Swan v. Nesmith, 7 Pick. 220 ; Wolff v. Heslop, 1 El. & El. 563 ; Josling v. Irvine, 6 Koppel, 5 Hill, 458 ; S. C. 2 Denio, 368 ; li. & N. 512, if properly charged in the Bradley v. Richardson, 23 Vt. 721 ; Sher- deelaration as a liability to pay and not as a wood v. Stone, 4 N. Y. 265 ; Lewis v. Brehme, payment made ; Pritchet >■. Boevey, 1 Cr. & 33 Md. 412 ; Cartwright v. Greene, 47 Barb. M. :;."-: the allegation thai the plaintiff had 9,16; Bramble v. Spiller, 18 W. E. 316; been "put to expenses," &c. was held suffi- S. C. nom. Bramwell v. Spiller, 21 L. T. N. dent to charge a liability though not paid. S.672; Ex parte White, L. R. 6 Ch. Ap. Richardson v. Chasen, 10Q.B.756. Whore 397,403; Titcomb v. Seaver, 4 Greenl. 542; the com met made with the alleged principal Hosmer C. J. in Redfield v. Davis, 6 Conn is defective in form, the plaintiff cannot re- 448 ; Holbrook v. Wight, 24 Wend. 169.] cover the costs of suing upon it ; as where (/) li the defendant had possession of the the plaintiff was let into possession of prem- land, the count should be for the use of land, fees by the defendant under a supposed au- &c. See a form for horse meat and sta- thority to let them, but upon a mere verbal bling, post. The duty of an agister of cattle agreement for a seven years' lease, and was is merely to take care of them, not " to DFXLARATIONS ON CONTRACTS. APOTHECARIES. 47 plaintiff, for the defendant, at his request, on land of tlie plaintiff [account stated, and conclusion, as ante, 33, 34.] [2. Indebitatus Count for the use of Pasture. Money payable by the defendant to the plaintiff, for the defendant's use, by the plaintiff's permission, of pasture land of the plaintiff, and the eatage of the grass glowing thereon for the depasturing of cattle. A like comtt. Sutton v. Temple, 12 M. & W. 52. 3. Against an Agister of Cattle for losing a Horse. That in consideration that the plaintiff delivered to the defendant a horse of the plaintiff, to be agisted, kept, and taken care of by the defendant for the plaintiff, for reward to the defendant, the defendant promised the plaintiff to agist, keep, and take care of the said horse for the plaintiff; yet the defendant did not keep and take care of the said horse for the plaintiff, whereby the same was and is lost to the plaintiff] ANNUITY. \_0n an Annuity Deed for Arrears. (#) That the defendant, by deed (h) dated the day of granted to the plaintiff an annuity or yearly sum of $ , payable half- yearly on the day of , and the day of , in every year, from the day of , A. d. , for and during the life of the plaintiff, and thereby covenanted with the plaintiff to pay the same to the plaintiff at the times and in the manner aforesaid ; of which said annuity $ , being the amount of , half-yearly payments thereof, is due and unpaid. Like counts. Randall v. Rigby, 4 M. & W. 130 ; Humphreys v. Jenkin- son, 8 Ex. 684 ; Howkins v. Bennet, 7 C. B. N. S. 507. On a covenant in a deed of separation between husband and wife, to pay an annuity to the ivife's trustee. Baynon v. Batley, 8 Bing. 256 ; Goslin v. Clark, 12 C. B. N. S. 681 ; Kendall v. Webster, 1 H. & C. 440.] APOTHECARIES. Obs. — The right to recover the charges of apothecaries and other medical practi- tioners has been materially altered by the medical act, 21 & 22 Yiet. c. 90; s. 1.") provides for the registration of physicians, surgeons, and apothecaries; s. .°>l enacts that "every person registered under this act shall be entitled, redeliver them." Corhett v. Packington, 6 a judgment for the penalty, and issue a scire B. & C. 2G8. If he leave the gate of his facias for subsequent arrears as they from field open, and the cattle stray out and are time to time accrue due. See post, "Bond." stolen, he must make good the loss. Broad- But where the plaintiff wishes to proceed water v. Blot, Holt N. P. C. 541 ; [1 Chitty expeditiously, an action on the deed is pref- Pl 70, 169; so, in any ease, where the cat- erable, as the execution of a writ of inquiry tie are injured or lost by the negligence or is thus avoided. carelessness of the agister. Rey v. Toney, (It) It would seem that this description 24 Miss. (3 Jones) 600; McCarthy v. Wolfe, of the deed is sufficient without alleging it 40 Missou. 520. See Sinclair v. Pearson, to have been made inter partis: or that it 7 N. H. 219], was sealed with the defendant's seal. Xo (g) Where there is an annuity bond it may profert or excuse for profert need now be be as well to proceed thereon in order to get made. Com. Law P. Act, 1852 s. 55. 48 DECLARATIONS ON CONTRACTS. APOTHECARIES. Obs. according to his qualification or qualifications, to practise medicine or surgery, or medicine and surgery, as the case may be, in any part of her majesty's dominions, and to demand and recover in any court of law, with full costs of suit, reasonable charges for professional aid, advice, and visits, and the costs of any medicines or other medical or surgical appliances rendered or sup- plied by him to Ids patients. Provided always that it shall be lawful for any college <>f physicians to pass a by-law to the effect that no one of their fellows or members shall be entitled to sue in manner aforesaid in any court of law; and thereupon such by-law may be pleaded in bar to any action for the pur- pose aforesaid commenced by any fellow or member of such college." By s. 32, ■• After the 1st day of January, A. D. 1859 (extended to 1st July, 1859, by 22 Viet. c. 21). no person shall be entitled to recover any charge in any court of law for any medical or surgical advice, attendance, or for the per- formance of any operation, or for any medicine which he shall have both pre- scribed and supplied, unless he shall prove upon the trial that he is registered under this act." The mode of proof of registration is pointed out by s. 2 7, which provides that a book to be called the "Medical Register " is to be printed and published by the registrar every year; and a copy of the Medical Register for the time being, purporting to be printed and published as afore- said, shall lie evidence in all courts, and before all justices of the peace, and others, that the persons therein specified are registered according to the act; and the absence of the name of any person from the register is evidence, until the contrary be made to appear, that such person is not registered. The act does not affect chemists, druggists, or dentists, and duly licensed apothecaries in Ireland, so far as the same extends to selling, compounding, or dispensing medicines. It would seem that the act is not retrospective; and that in an action to re- cover an apothecary's charges incurred before the act came into operation, proof of registration under the act is not necessary; but an apothecary, when suing for a claim wdiich accrued to him prior to the late act, must prove at the trial that he was in practice as such on 1st August, 1815, or produce a cer- tificate granted to him by the Apothecaries' Company, or he cannot recover any charges, not even for the phials in which medicines were supplied; Steed v. Henley, 1 C. & P. 574; though there be no plea denying that he is an apothecary. 55 Geo. 3, c. 194, s. 21, & 6' Geo. 4, c. 133, s. 5. The certi- ficate purporting to be sealed with the seal of the society, proves itself ; 14 & 15 Vict. c. 99, s. 8; and if granted to a person of the same name as plain- tiff, is prima facie proof of plaintiff's right to practise. Simpson v. Dismore, 9 M. & W. 4*7. An apothecary may recover for both medicines and attendances if the united charges are reasonable; Morgan v. Hallen, 8 Ad. & E. 489; and although supplied to a patient in London, although he has only a country certificate ; Young v. Geiger, G D. & L. 337 ; 6 C. B. 541 ; unless such defence be spe- cially pleaded, lb. But if an apothecary assume the character of a physi- cian, anil induce his patients to believe that he has a diploma, he cannot re- cover. Lipscombe v. Holmes, 2 Camp. 441. A physician cannot recover except upon an express contract ; Veitch v. Russell, 1 Car. & M. 362; unless being also a surgeon, he attend his patients and contract in that character, and not as a physician, but as a surgeon; Little v. Oldacre, 1 Car. & M. 370 ; but, a physician may now, if registered under the late act, recover his fees, unless the college which has granted him his diploma has passed a by-law under the 15th section of the act, debarring 1dm from suing. A surgeon, unless licensed by the College of Surgeons, could not practise or recover for work done as such, within London or seven miles thereof ; 3 Hen. 8, c. 11, s. 1 ; Cundall v. Dawson, 4 C. B. 376 ; D'Allax v. Jones, 26 L. J. Ex. 79; 2 Jur. N. S. 979; and, if not also an apothecary, cannot recover for medicines supplied unless they were ancillary to a surgical case, and therefore not for medicines in a case within the province of an apothecary, as typhus fever. Allison v. Haydon 4 Bing. 616; Wagstafft'. Sharpe, 3 M. & W. 522; Proud v. Mayall, 3 1). & L. 531 ; Apothecaries Company v. Lotinga, 2 Moo. & Rob. 4 95; Simpson v. Holfe, 4 Tyr. 325. As to the rights of pharmaceutical chem- ists, see 15 & 16 Vict. c. 56; Reg. v. Pharmaceutical Society, 5 El. & Bl. 138. [Wliere no restraint is imposed by statute, physicians and surgeons, in the DECLARATIONS ON CONTRACTS. APPRENTICES. 49 Ohs. American Btatee, have the same i • I -_r 1 1 1 as others to the benefit of the principle of the common law, that when services are performed on request, ana no spe- cial agreement is made in reference to them, the law raises an implied prom- ise to pay so much as the person performing them deserves to have, and an action lies upon such implied promise. Hewitt v. Wilcox, l Met. 154; Towle v. Manvtt, 3 Green! 22; Bailey v. Mogg, 4 Denio, 60 ; Warren v. Saxby, 12 \'t. 146; Judah v. McNamee, 3 Blackf. 269; M'Pherson v. Cheadell, 24 Wend. 15; M'Clallen v. Adams, 19 Pick 333; Mooney v. Lloyd, 5 Serg. & R. 4 Hi. In sonic Btates a license from some designated body or society lias been made necessary to the right of a physician to recover for his fees ami services, and in such cases it has been held that an unlicensed physician can- not recover for medical attendance, though he administers medicines for which he has obtained a patent; Smith U. Tracy, 2 Hall, 405; Jordan v. Dayton, 4 Ohio, 294; Thompson v. Staats, 15 Wend. 395; or uses only veg- etable remedies of domestic origin. Bailev v. Mogg, 4 Denio, 60. See Alcott v. Barber, 1 Wend. 526.] By a Surgeon and Apothecary for his Bill, (i) Commencement as in Form 1, ante, 5, and then proceed :] for the work, care, and attendance of the plaintiff, by him done and bestowed as a sur- geon (k) and apothecary, for the defendant, at his request ; and also for medi- cines and other necessary things provided and applied by the plaintiff for the defendant, at his request. \_Add account stated and conclusion, as ante, 5, Form 1.] [See form of declaration against a surgeon for negligence, post, " Declara- tions in Tort."l -J * APPRAISERS, post, "Auctioneers." APPRENTICES. Obs. — See forms of declarations in covenant upon indentures of apprenticeship, 2 Chit. PI. 7th ed. 370; Hughes v. Humphreys, 6 B. & C. 680. As to the law upon this subject, see Burn's J. ; Harr. Ind. and Fisher's Ind. tit. " Ap- prentices." The apprentice, if under age, cannot be sued upon the deed. Gilbert v. Fletcher, Cro. Car. 179. See Chit. jr. Cont. Index in voc. The common form of the indenture is not inter partes. It begins: " This indenture witnesseth, that, &e. binds himself," &c. and ends with a clause that " for the true performance of the indenture, each party binds himself to the other," &c. This clause constitutes a covenant, and binds the parties exe- cuting the deed according to their relative positions ; and if the father of the apprentice execute the deed, he is liable thereon for any misconduct of the apprentice in violation of its provisions, although it be not expressed in terms in the prior part of the instrument that the father thereby covenants with the master, &c. Branch r. Ewington, 2 Dougl. 518 ; dimming v. Hill, 3 B. & Aid. 59 ; [Whitley v. Loftus, 8 Mod. 190.] The common indenture often runs, that the master covenants (not stating with whom) to instruct the ap- prentice, &c.; and it seems that in such case the latter alone (if a party to the deed) should be the plaintiff in an action against the master for a breach of his covenant, although the father be also a covenanting party. See a form by an apprentice against his master, to whom he had been assigned, for not instructing him, &c. Morris v. Cox, 2 M. & G. 659. A contract between master and servant is not necessarily a contract of apprenticeship because it (i) See the form, Ring v. Roxbrough, 2 (k) Omit this, if the plaintiff be not a Cr. & J. 8 41 ; 2 Tvr. 468, and Obs. on the surgeon, or if he attended merely as an general issue, post, "Apothecaries." The apothecary, common count for work and materials would be sufficient. Ante, Obs. " Work." &c. p. 33. vol.. ii. 4 50 DECLARATIONS ON CONTRACTS. APPRENTICES. Ons. contains a stipulation about being " taught " or " instructed " in his -work. Reg. v. Northowram, 2 Now Sess. Cas. 437; 10 Jur. 1003. If the master aliandon part of the trade lie covenanted to teach, he cannot maintain an ac- tion for desertion by the apprentice against the father on his covenant, even though the father consented by parol to the discontinuance of the abandoned trade. Ellen v. Topp, 6 Ex. 424. The covenants in a deed of apprentice- ship are independent covenants, and misconduct of the apprentice does not justify the master in putting an end to the contract. Phillips v. Clift, 4 H. & X. 168; 28 L. J. Ex. 153 ; [Winstone v. Linn, 1 B. & C. 460. It is a good defence to an action for not teaching and providing for the apprentice, that he quitted the service without leave ; Hughes v. Humphreys, 6 B. & C. 680; or that he refused to be taught; Raymond v. Minton, L. R. 1 Ex. 244. As to the right to a return of the premium on the death of the master or ap- prentice, see Therman v. Abell, 2 Vern. 64 ; Ex parte Prankerd, 3 B. & Aid. 257 ; In re Thompson, 1 Ex. 864; Hirst v. Tolson, 2 Mac. & G. 134; Craven v. Stubbins, 24 L. J. C. 126.] [1. By an Apprentice against the Master, on the Indenture of Appren ticeship. That by an indenture of apprenticeship, dated the day of , a. d. -, (l) the plaintiff put himself apprentice to the defendant, to learn the defendant's trade and business of a , and with him, after the manner of an apprentice, to serve from the day of , a. r>. , for the term of years thence next following ; and the defendant thereby covenanted with the plaintiff to instruct the plaintiff in his the defendant's said trade and business, by the best means that he could, and to provide for the plaintiff suf- ficient meat, drink, lodging, and all other necessaries, during the said term ; and after the making of said indenture, the plaintiff entered into the said ser- vice of the defendant, with him after the manner of an apprentice, to serve for the term aforesaid, and has always performed all things in the said indenture contained on his part to be performed ; yet the defendant, after the maling of the said indenture, and during the said term, did not nor would instruct the plaintiff in his the defendant's said trade and business, nor did nor would pro- vide for the plaintiff sufficient meat, drink, lodging, (m) and other necessaries. Like counts by the father of the apprentice. Winstone v. Linn, 1 B. & C. 460 ; Hughes v. Humphreys, G B. & C. 680 ; Dunn v. Sayles, 5 Q. B. 685 ; Phillips v. Clift, 4 H. & N. 168 ; Raymond v. Minton, L. R. 1 Ex. 244. 2. By the Master against the Father of the Apprentice on the Indenture of Apprenticeship. That by an indenture of apprenticeship, dated the day of , A. d. , and made between G. B., therein described as the son of the defendant of the first part, the defendant of the second part, and the plaintiff of the third part, the said G. B., with the consent of the defendant, put himself apprentice to the plaintiff to learn his trade and business of a , and with him after the manner of an apprentice, to serve from the day of , A. d. , for the term of years thence next following ; and the defendant thereby (/) No profert or excuse for it is neces- (m) As to when a master can recover foi sary ; C. L.JB. Act, 3852, s. 55; describing board and lodging for a pupil before he is act> the agreement between the parties to be by ually apprenticed, see Attwaters v. Court- indenture, sufficiently- shows it was by deed, nev, 1 Car. & M. 51. See, also, as to washing, Phillips v. Clift, 4 II. & N. 168. Blackburne v. Davis, 1 C. & K. 167. DECLARATIONS ON CONTRACTS. ARBITRATORS. 51 covenanted with the plaintiff, amongst other things, that the said G. B. the plaintiff faithfully should serve, his secrets keep, his lawful commands obey and do, and that he should not absent himself from the plaintiff's service day or night unlawfully, but in all things as a faithful apprentice should behave himself towards the plaintiff and all his during the same term ; and after the making of the said indenture, the plaintiff received the said G. B. into the plaintiff's said service as such apprentice for the term aforesaid, and has always performed and been ready ami willing to perform all things in the said indenture on his part to be performed ; yet the said G. B., after the making of the said indenture and during the said term unlawfully absented himself from the service of the plaintiff. [State the breach according to the fact in the terms of the covenant broken.] Like counts. Cuming v. Hill, 3 B. & Aid. 59 ; Ellen v. Topp, 6 Ex. 424 ; Millership v. Brookes, 5 H. & N. 797 ; Cox v. Muncey, 6 C. B. N. S. 375. Count against a surely, a parly to the indenture of apprenticeship, for non- payment of the premium. Popham v. Jones, 13 C. B. 225.] ARBITRATORS. By an Arbitrator for his Fees, fro. for making an Award. Obs. — The common counts for work and materials and for money paid for the stamps, &c. would be sufficient. Ante, 33, 34. In general an arbitrator does not part with the award until he has been paid. [See Butman v. Abbot, 2 Greenl. 363.] If there be a prior or subsequent express promise to pay an arbitrator, he may maintain an action to recover his fees. Hoggins v. Gor- don, 3 Q. B. 466-474; Hardres v. Prowd, Styles, 465. But in the absence of such promise, semble, he cannot do so. Viranny v. Warne, 4 Esp. 47; Swinford v. Burn, 1 Gow, 7. If the arbitrator be a barrister it is clear he cannot recover in the absence of an express contract to pay him if he be em- ployed in his professional character. The arbitrator should not fix his own fees by the award, Re Coombes, 4 Ex. 839, unless power be given him by the submission. Roberts v. Eberhardt, 3 C. B. N. S. 482 ; [Threlfall v. Fan- shawe, 19 L. J. Q. B. 334; Parkinson v. Smith, 30 L.J. Q. B. 178.] The reasonableness of the fee fixed by him may be referred to the decision of an offi- cer of the court. Miller v. Robe, 2 Taunt. 461 ; Fitzgerald v. Graves, 5 Taunt. 342. If he compel payment of an excessive sum for taking up his award, the excess may be recovered back from him as money had and received. Barnes v. Braithwaite, 2 H. & N. 569. As to the right of a lay arbitrator to charge for professional assistance in preparing his award, see Galloway v. Keyworth, 15 C. B. 288. [In the American states, arbitrators and referees have the same right to recover payment for their services as other persons. Hinman v. Hapgood, 1 Denio, 188; Hassinger v. Diver, 2 Miles, 411; Butman v. Ab- bot, 2 Greenl. 361. If there are several referees, a separate action lies for each. Butman v. Abbot, 2 Greenl. 361; Hinman v. Hapgood, 1 Denio, 188. In Butman v. Abbot, supra, it is held that the aetion must not be brought against both parties to the suit jointly, but only against the party making the demand.] [1. Count on arbitration bond conditioned to perform the award. "Welch v. Ireland, 6 East, 613 ; Ferrer v. Oven, 7 B. & C. 427. 2. Count for breach of an agreement contained in a contract to refer to arbi- tration all disputes which might arise as to the contract. Livingston v. Ralli, 5 El. & Bl. 132 ; Beckh v. Fage, 5 C. B. N. S. 708. For refusing to choose an arbitrator. Marsack v. Webber, 6 II. & N. 1. For refusing to appoint a 52 DECLARATIONS ON CONTRACTS. ASSIGNEES. valuer to ascertain damages in pursuance of an agreement. Thomas v. Fred- erics, 10 Q. B. 775. For revoking the arbitrator's authority, "NVarburton v. Storr, 4 B. & C 103.] % ARREST. 1. Declaration against a Sheriff for carrying Plaintiff to Prison within Twenty-four Hours after Arrest upon Mesne Process. See 32 G. 2, c. 28, ss. 1-12. See the forms Silk v. Humfrey, 7 C. & P. 14; and see Dewhurst v. Pearson, 1 Dowl. G64 ; and Barsham v. Bullock, 10 Ad. & E. 23 ; Gordon v. Laurie, 9 Q. B. 60. 2. See Form against a Bailiff for Extortion, Plevin v. Prince, 10 Ad. & E. 594, which may easily be adapted to the pres- ent mode of pleading. The 7 TV 4 and 1 Vict. c. 55, gives the court the power of punishing summarily ; and see Curlewis v. Bird, 1 Dowl. N. S. 752. 3. Form against a Sheriff for refusing to accept Bail. Evans v. Moseley, 2 Cr. & M. 496; 2 Saund. 61 b, c; Matson v. Booth, 5 M. & S. 223. ASSIGNEES OF A BANKRUPT. Obs. — By the bankrupt law consolidation act, 12 & 13 Vict. c. 106, s. 153, as- signees, with the leave of the court, may institute or defend actions or suits which the bankrupt might have commenced, prosecuted, or defended. Ante, 8, note (t). They may also compound for debts, and submit disputes to arbitration. Assignees cannot be sued as such. If they enter into con- tracts or engagements, they become personally liable, and must be sued accordingly. They cannot be sued at law for dividends. Bank. Law Consol. Act, s. 190. [See bankruptcy act, 1861, §§ 116 and 117, as to choice and appointment of creditors' assignee. To what time title of assignees relates back. Stevenson v. Newnham, 13 C. B. 285. Vesting of cause of action in assignees. Hodgson v. Sidney, L. R. 1 Ex. 313. Proof of title. Kelly v. Morray, L. R. 1 C. P. 66 7. Under the United States bankrupt law it is pro- vided that the assignee shall have the like remedy to recover all the estate, debts, and effects in bis own name, as the debtor might have had if the de- cree in bankruptcy had not been rendered and no assignment bad been made. And the assignee may be admitted to prosecute or defend suits, by or against the bankrupt, pending at the time of the adjudication of bankruptcy. Rev. Sts. U. S. p. 981, § 504 7. Leave of the court is not required. So the as- signee may, under the direction of the court, compound and settle controver- sies respecting demands against the estate of the bankrupt, or of debts due to it; and may submit any such controversy to arbitration. Rev. Sts. U. S. ]). 983, § 5061. A copy, duly certified by the clerk of the court, under the seal thereof, of the assignment, is made conclusive evidence of the title of the assignee to take, hold, sue for, and recover the property of the bankrupt. Rev. Sts. U. S. p. 981, § 5049.] 1. For Goods sold, §c. hy the Bankrupt, alleging the Debt to have accrued to him before Bankruptcy, and Account stated with the Assignees, (n) Commencement as ante, 8, Form 7, and see notes there.~] For money pay- (n) This, and the two following counts, 14 L. J. Q. B. 50; Lackington v. Vines, 1 will be allowed together. Williams v. Vines, D. & L. 710, semble, 1 Chit. Arch. 213. DECLARATIONS ON CONTRACTS. ASSIGNEES. 53 able by the defendant to the said E. P. before he became a bankrupt, for goods sold and delivered by the said E. F. before lie became a bankrupt to the de- fendant, and for [slate any other debts in the same ivay, see ante, 33, Form 1, taking care to write throughout the name of the bankrupt, E. ¥.,for "the plain- till'.'' (p) If it is probable that a promise to the assignees can be proved, here insert the next form as a second count ; (p) if not proceed thus :] And also for money payable by the defendant to the plaintiffs, as assignees as aforesaid, for money found to be due from the defendant to the plaintiffs as assignees as aforesaid, on accounts stated between the defendant and the plaintiffs, as gnees as aforesaid. And the plaintiffs, as assignees as aforesaid, claim £ . 2. Second Count, alleging the Debt to be payable to the Assignees for a consideration moving from the Bankrupt, (g) And the plaintiffs also sue the defendant for money payable by the defend- ant to the plaintiffs, as assignees as aforesaid, for goods sold and delivered by tin' said E. F. before his bankruptcy to the defendant [stating any other debts in the same way], and for money found to be due from the defendant to the plaintiffs, as assignees as aforesaid, upon accounts stated between the plaintiffs, a> assignees as aforesaid, and the defendant. And the plaintiffs, as assignees as aforesaid, claim £ . 3. By Assignees on Causes of Action arising after the Bankruptcy, (r) Commencement as before.] For money payable by the defendant to the plaintiffs, as assignees as aforesaid, for goods sold and delivered by the plain- tiff, as assignees as aforesaid, to the defendant ; and for money paid by the plaintiffs, as assignees as aforesaid, for the defendant at his request ; and for money received by the defendant for the use of the plaintiffs, as assignees as aforesaid ; *and for money found to be due from the defendant to the plain- tiffs, as assignees as aforesaid, upon accounts stated between the defendant and the plaintiffs, as assignees as aforesaid. And the plaintiffs, as assignees as aforesaid, claim £ . 4. By the Assignees of a Bankrupt and the Solvent Partner of the Bankrupt. Commeneement as ante, 9, Form 8, and see the notes thereon, and Lewis v. (o) The above count maybe joined with payable " are in substitution of the old form both or either of the forms, 2, 3. An as- laying the debt as the consideration for the Bgnee cannot join with the above a count promise, the form 2 would seem proper. It for a debt due to him in his individual or would also be applicable where the goods private capacity. Richardson v. Griffin, 5 were sold on a credit, which had not expired M. & Sel. 297. at the time of the bankruptcy. It is often (/') It is a rule in actions by executors, highly important to prove a promise or ad- ndministrators, assignees of bankrupts, &c. mission, or part payment to the plaintiff in that a promise after the death of the tes- sneh capacity, to obviate the effect of the tator or intestate, or after the bankruptcy, statute of limitations, &c. cannot be received in evidence unless there (7) When proper to insert this count, su- be a count charging such a promise to have pra, note (/)). been made to the plaintiff in his representa- (/) This count may be joined with both or tive capacity; Sarell v. "Wind, 3 East, 409; either of the two preceding forms. liieh- Powley v. Newton, 6 Taunt. 453 ; Hickman ardson v. Griffin, 5 M. & Sel. 297. When t Walker, Willes R. 27 ; Pittam v. Forster, assignees can sue for rent due after bank- 1 B. & C. 248; and as the words "money ruptcy, see Graham v. AHsdp, 3 Ex. 186. 54 DECLARATIONS ON CONTRACTS. ASSIGNEES. Edwards, 7 M. & TV. 300]. For money payable by the defendant before the said 0. P. became a bankrupt, to the said A. B. and the said 0. P. for goods sold and delivered by the said A. B. and the said O. P. to the defendant, and for [proceed in the same manner with other causes of action. See ante, 33, Form 1, taking care to write "the said A. B. and the said 0. P." for "the plaintiff?' If necessary, add a count claiming money payahle by the defendant to A. B. and the other plaintiffs as assignees for goods sold, fyc. by A. B. and 0. P. before the bankruptcy, and an account stated by the defendant with A. B. and the other plaintiff as assignees. Conclude as ante, 10, Form 8.] 5. By the Assignees of a Bankrupt for not giving an Acceptance for Goods sold by the Bankrupt before the Bankruptcy. Groom v. West, 8 Ad. & E. 758. 6. By Assignees on a Contract partly executed by the Bankrupt to deliver Linseed at Odessa on Special Terms. Gibson v. Carruthers, 8 M. & W. 321. 7. For not delivering Railway Shares to Assignees, the Defendant having contracted to sell them to the Bankrupt. Lawrence v. Knowles, 5 Bing. N. C. 400. 8. Against Assignees on a Contract made by the Bankrupt and adopted by them after the Bankruptcy. Twemlow v. Askey, 6 Dowl. 597. BY THE ASSIGNEES OF AN INSOLVENT DEBTOR. As to the rights of Assignees of Insolvent Debtors, see in general Chit. Contracts; 1 & 2 Vict. c. 110, ss. 37, 45 ; 5 & 6 Vict. c. 116, s. 7 ; 7 & 8 Vict. c. 96, ss. 4, 5, 10, 11, 63. Obs. — Under the insolvent act, 1 & 2 Vict. c. 110, by the vesting order, all the real and personal estate, and effects of the prisoner (except the wearing ap- parel, bedding, and necessaries of himself and family, and his working tools and implements, not exceeding in the whole the value of 20/.), and all his fu- ture estate which shall accrue to him before his final discharge, and all debts due, or growing due (i. e. debts ascertained but payable in future. Skelton v. Mott, 5 Ex. 231) to such prisoner, or to be due to him before such dis- charge (as a debt which accrues to insolvent between the vesting order and final discharge, Williams v. Chambers, 10 Q. B. 337; Ford v. Dabbs, 5 M. & G. 309), vest in the provisional assignee without other conveyance being made: but a debt accruing to the insolvent for his personal labor during that period, does not pass. Williams v. Chambers, ubi supra. The assignees must sue in their own names as assignees for cause of action which so vest in them. Wetherell v. Julius. 10 C. B. 2G7; Rochfort v. Battersbv, 2 H.L. Cas. 388; Stanton v. Collier. 3 El. & Bl. 274; Breary v. Kemp, 26 L. J. Q. B. 64; Sprye v. Porter. 7 El. & Bl. 58; but the insolvent may sue for debts which accrue to him between the vesting order and final discharge unless the as- signees have interfered and claimed such debts. Jackson v. Burnham, 8 Ex. 173. Where the insolvent was discharged from prison without adjudication, but the DECLARATIONS ON CONTRACTS. ATTORNEYS. 55 Obs. petition was not dismissed, it was held the insolvent could not sue. Wearing v. Ellis, 26 L. J. Ex. 15 ; Tudway v. Jones, 24 L. J. Chan. 507. 1. On Causes of Action lohicli accrued to the Insolvent, and Account stated with the Assignees. Commencement as ante, 8, Form 7, and see notes thereon.'] For money pay- able by the defendant to the said L. M. before the estate and effects of the said L. M. became or were vested (s) in the plaintiffs, as such assignees as aforesaid, by order in that behalf made by tbe court for the relief of insolvent debtors in England, according to the form of the statutes in that case made and provided, for goods sold and delivered by the said E. F. to the defendant, and for \_§c. ; here state any other debts in the same way as ante, 33. Form 1, taking care to write the name of the insolvent, L. M., for "the plaintiff." If it is probable that a promise to the assignees can be proved, or in cases where the assignees are suing for a debt due to the insolvent before, but not payable until after the vesting order (Skelton v. Mott, 5 Ex. 231), here insert as a second count a form upon the principle of Form 2, ante, 53, and proceed thus :] And also for money payable by the defendant to the plaintiffs, as assignees as afore- said, for money found to be due [#c. as in Form 3, p. bZ,from the *]. 2. By the Assignees of an Insolvent Debtor, on a Cause of Action accruing after the Vesting Order, (f) Commencement as in last form. .] For money payable by the defendant to the plaintiffs, as assignees as aforesaid, after the estate and effects of the said L. M. vested in the plaintiffs, as assignees, by order of the court for the relief of insolvent debtors in England, for goods sold and delivered by the plaintiffs, as assignees as aforesaid, to the defendant, and for money received by the de- fendant for the use of the plaintiffs, as assignees as aforesaid, [inserting such other debts as may be due and can be included,] and for money found to be due from the defendant to the plaintiffs, as assignees as aforesaid, upon accounts stated between the defendant and the plaintiffs, as assignees as aforesaid. And the plaintiffs, as assignees as aforesaid, claim £ . BY AND AGAINST ATTORNEYS. Obs. — 1. By Attorneys. — The common count for work, as ante, 33, would suffice for the recovery of an attorney's bill of costs. But it is usual to state the plaintiff's capacity of attorney, and that he did the work in that character. See the law on this subject, [2 Chitty Contr. (11th Am. ed.) 810 et seq.,] and the notes to the pleas in actions by and against attorneys, post. An attorney, if he sue as such in person, may lay and retain the venue in Middlesex. Grace v. Wilmer, 6 El. & Bl. 9*2; ante, 9. The old doctrine, that an attorney is bound to continue a suit which he has been retained to prosecute or defend until its termination, although bis client refuse to supply the necessary pe- cuniary means, is overruled; and upon reasonable notice, and demand and refusal of the necessary funds, the attorney may decline further proceedings, and recover his bill to the extent to which he has, at the time of abandonment, conducted or defended the action, although such action be unfinished. Van- sandau v. Brown, 9 Bing. 402; 2 M. & Sc. 543; Wadsworth v. Marshall, 2 Cr. & J. 665 ; Rowson v. Earle, Mood. cS: Mai. 538 ; Hoby v. Built, 3 B. & Ad. 350 ; ,s) See 1 & 2 Vict. e. 110, ss. 37, and 45 ; bers, 10 Q. B. 337 ; Ford v. Dabbs, 5 M. & 6 & 6 Vict. c. 116, s. 7 ; Williams v. Cham- G. 309 ; 7 & 8 Vict. c. 96, s. 4. (t) See Observations, ante, 54. 56 DECLARATIONS ON CONTRACTS. ATTORNEYS. Obs. Hawkes v. Cbtterell, 8 H. & N. 243 ; [Gleason v. Clark, 9 Cowen, 578; Cas- tro v. Bennett, 2 John. 296; Bohannon v. Paterson, 9 Wind. 503.] But in such case it lies on the attorney to show satisfactorily why he has aban- doned the cause; Nichols v. Wilson, 11 M. & W. 106; and if he has done so wrongfully, he will he liable to an action, and disabled for suing for costs already incurred. Hoby v. Built, Nichols v. Wilson, supra. [It has-been held that if an attorney had reasonable ground for commencing an action, and it appears that he desisted only because he afterwards found that the cause could not be sustained, he will be entitled to recover for his work and labor. Tindal C. J. in Lawrence v. Potts, 6 C. & P. 428. See Pennington v. Yell, 6 Eng. 212. A lawyer who, with his client's consent, withdraws from a case, after having rendered beneficial services, may still recover for his ser- vices, unless at the time of withdrawing, he waives his claim to compensa- tion. Coopwood v. Wallace, 12 Ala. 790.] In general, however, an attor- ney's contract, on being employed in a suit, is that he will complete it ; and the statute of limitations runs against his bill of costs only from the time the suit is ended; Harris v. Osbourn, 2 Cr. & M. 629; Rothery v. Munnings, 1 B. & Ad. 17, unless he has, at an earlier period, given up the business in consequence of the client's refusal to supply him with funds. Whitehead v. Lord, 7 Ex. 691 ; Phillips v. Broadley, 9 Q. B. 744 ; Martindale v. Falkner, 2 C. B. 706. An attorney cannot recover, if his clerk alone conducted the business, and his clerk resided and carried on business at a distance from the attorney, and the clerk had the entire superintendence of the business, and the attorney had not the means of exercising his judgment in the matter. Hopkinson v. Smith, 1 Bing. 13. An attorney is bound by his agreement to charge only money out of pocket, although "he was misled by his client's statement as to his right of action; Thwaites v. Mackerson, 3 C. & P. 341; Mood. & M. 199 ; and he cannot recover even for money paid, if he has agreed to do the work on the terms of no cure no pay. Turner v. Tennant, 10°Jur. 429; Re Stretton, 14 M. & W. 806; Lewis v. Samuel, 8 Q. B. 685; Collins r. Brook, 28 L. J. Ex. 143. The master may tax his charges, though it was agreed he should be paid at a fixed rate. Drax v. Seroope, 2 B. & Ad. 581; Re Masters, 4 Dowl. 18 ; but see In re Vann, 15 C. B. 341 ; [2 Chitty Contr. (11th Am. ed.) 810, note (o).] He may recover his bill for issuing a fiat in bankruptcy, against a person who employed him to do so, but was not petitioning creditor, although no assets are received, &c. Pocock v. Russen, Mood. & Mai. 357. If his client sue in forma pauperis, he can only recover money out of pocket. Philips v. Baker, 1 C. & P. 533 ; Pr. Rules Hil. T. 1853, 121 ; Dooly v. Great Northern Railway Company, 24 L. J. Q. B. 25, Holmes v. Penney, 23 L. J. Ex. 132. When he may sue two persons jointly, if employed by them, though they were separately interested, see Hellings v. Gregory, 1 C. & P. 627. When a firm of attorneys may sue, although only one of the partners was admitted in the court in which the business was per- formed, see Arden v. Tucker, 4 B. & Ad. 815; Hill v. Sidney, 7 Ad. & E. 956. Employment by a corporation. Arnold v. Mayor of Poole, 4 M. & G. 860. Employment by and against guardians of poor and district boards of man- agement, 22 & 23 Vict. c. 49, s. 5. [An attorney, in the American states, who has been regularly admitted to practise in the courts, is presumed to have authority to institute a suit in the manner in which he prosecutes; his want of authority must be shown; Norris v. Douglass, 2 South. 817; even when he appears and defends a suit in behalf of a corporation. Osborn v. Bank of United States, 9 Wheat. 738; Proprietors v. Bishop, 2 Vt. 231. He is not bound to show his authority until it is disputed. See Osborn v. Bank of United States, 9 Wheat. 938; Jackson v. Stewart, 6 John. 34; Murray o House, 11 John. 464; Denton v. Noyes, 6 John. 296; Woodbury J. in East- man 17. Coos Bank, 1 N. H. 23; Harding v. Hull, 5 Harr. & J. 478; Henck v. Todhunter, 7 Harr. & J. 275 ; Noble v. Bank of Kentucky, 3 Marsh. 263; Huston J. in Lynch r. Commonwealth, 16 Serg. & R. 369.] As to remedy for business (lone in county court, see Leverson v. Shaw, 15 C. B. 282. As to attorney's lien on the judgment recovered for his client, and when client may comprc mise and release debt and costs, see Brunsdon v. Allard, 28 L. J. Q. B. 306 [Potter o. Mayo, 3 Greenl. 34; Hobson v. Watson, 34 Maine, 20; Wright v. Cobleigh, 21 N. H. 339; Shapley v. Bellows, 4 N. H. 347; Currier v. Boston DECLARATIONS ON CONTRACTS. ATTORNEYS. 57 Ous. & Maine R. R. 37 N. II. 223; Heart v. Chipman, 2 Aiken, 162 ; Ocean Ins. Co. v. Rider, 22 Pick. 210; Benjamin v. Benjamin, 17 Conn. 110. As to the mode of enforcing an attorney's lien on a judgment, see Woods '■. Berry, 4 Gray, 357; or on a bond, see Hobson t\ Watson, 3 1 .Maine, 20. As to an at- torney's lien on the papers, &c. of his client, see 2 Kent, 640, 'ill: Den- nett v. Cutis, 11 N. II. 103; Walker <\ Sar-'eant, 14 Vt. 2 17; Walton V. Dickerson, 7 Barr, 370; Hobson v. Watson, 31 .Maine, 20.] An attorney cannot recover any portion of his hill of costs for business done or money paid, if the proceedings taken by him have become wholly useless in conse- quence of his gross negligence, inadvertence, or want of skill. Lewis v. Samuel, supra ; Cox v. Leech, 1 C. B. N. S. 617 ; Long v. Orsi, 18 C. B. 610; Stokes v. Trumper, 2 Kay & J. 232; Bracey v. Carter, 12 Ad. & E. 373; Dax v. Ward, 1 Stark. 409 ; Lewis r. Collard, 1 1 C. B. 208 ; [Hop- ping v. Quin, 12 Wend. 517; Bredin v. Ringland, 4 Watts, 420. But it is otherwise if the failure occurred partly from accident, and not -wholly from the negligence of the attorney. See Dax v. Ward, 1 Stark. 409 ; and see Lewis v. Collard, 14 C. B, 208; Bowman v. Tallman, 40 How. Pr. 1. The retainer of an attorney does not imply an engagement for success. See Gal- lagher i\ Thompson, Wright, 466.] Where the business is not wholly useless, but some benefit has or may accrue to the client, this shall go merely to re- duce the amount; 2 Smith L. C. 15; [Cox v. Leech, and Long v. Orsi, su- pra;'] an entire item for work partly useful cannot be reduced by the jury; Shaw cArden, 9 Bing. 287 ; but the client must resort to across action. [All lawyers in the American states have generally the same right to recover for their services as attorneys have in England. Wilson v. Burr, 25 Wend. 386; Stevens v. Adams, 23* Wend. 57; Brady v. Mayor &c. 1 Sandf. 569; Vilas v. Downer, 21 Vt. 419; Newman v. Washington, Martin & Yerg. 79. An attorney is entitled to recover for his professional services what he rea- sonably deserves, taking into view the nature of the business performed by him, and his own standing in the profession for learning and skill, whereby the value of his services is enhanced to his client. For the purpose of aiding in the determination of this, evidence may be admitted to show the prices usually charged for similar services by other persons of the same profession, in the same vicinity and practising in the same court. Vilas v. Downer, 21 Vt. 419; Christy v. Douglas, Wright, 485. He cannot recover more than he has agreed to receive by proof that his services were worth more. Coop- wood v. Wallace, 12 Ala. 790. Nor can he recover on the mere proof of ser- vices performed; he must also prove his retainer. Burghart v. Gardner, 3 Barb. 64; Brigham v. Foster, 7 Allen, 420; Cooper v. Hamilton, 52 111. 119; Briggs v. Georgia, 15 Vt. 61.] 2. Against Attorneys. — The law implies a promise on the part of an attorney, that he will use a reasonable degree of care, skill, and dispatch in the execution of business intrusted to his management; [O'Barr v. Alexander, 37 Geo. 195;] if he is guilty of gross default, negligence, or ignorance, whereby his client is injured, he is liable to an action ; but if he acts to the best of his skill, and with a bond fide and ordinary degree of attention, he is not re- sponsible. [1 Chitty Contr. (11th Am/ ed.) 815, 816, and note (>•), 817- 820; Purves v. Landell, 12 CI. & Fin. 91 ; Swinfen v. Lord Chelmsford, 5 II. & N. 890; Chown v. Parrot, 14 C. B. N. S. 74; Stimpson v. Sprague, 6 Greenl. 470; Dearborn v. Dearborn, 15 Mass. 316; Crooker v. Hutchinson, 1 Vt. 73; Pennington v. Yell, 6 Eng. 212; Gilbert v. Williams, 8 Mass. 51; Grayson v. Wilkinson, 5 Sm. & M. 268 ; Dorrance v. Hutchinson, 22 Maine, 357; Cox v. Sullivan, 7 Geo. 144; Wilson v. Collin, 2 Cush. 316 ; Varnum v. Martin, 15 Pick. 440 ; Reillv v. Cavenaugh, 29 Ind. 435; Hart v. Frame, 6 CI. & Fin. (Am. ed.) 193, note (1) ; Chapman v. Chapman, L. R. 9 Ex. 276; Evans v. Watrous, 2 Porter, 205; Percy v. Millaudon, 20 Martin, 68, 75; Holman v. King, 7 Met. 384; Nesbit v. Lawson, 1 Kelly, 275; Parker v. Rolls, 14 C. B. 691; Hosmer C. J. in Brackett v. Norton, 4 Conn. 524; Fray v. Voules, 1 El. & El. 839; O'Barr r. Alexander, 37 Geo. 195; Wilson v. R.uss, 20 Maine, 421 ; Goodman r. Walker, 30 Ala. (N. S.) 482.] Upon the retainer of an attorney there arises also a legal obligation or implied duty on his part, independently of any contract to perform the business in a proper, skilful, and diligent manner. 58 DECLARATIONS OX CONTRACTS. ATTORNEYS. Obs. It was the practice to sue and declare against an attorney either in assumpsit for breach of the implied promise (or an express one if it existed), or in case for the neglect of duty (see per Littledale J. Burnett v. Lynch, 5 B. & C. 609) and ii seems a plaintiff may still do so; and in some instances it may be an advantage to sue in tort rather than on contract, as, where it may be doubtful whether the plaintiff may recover £20, and therefore might be de- prived of costs under the county court acts, if the declaration were in con- tract. See Legge v. Tucker, 1 H. & N. 500 ; ante, 27. The question of negligence is for the jury. Reece v. llighy, 4 B. & Aid. 202. If diligence would have been ineffectual the defendant must prove it. Green v. Jackson, 2 Chit. Ii. 311; Godefroy v. Jay, 7 Bing. 413. An attorney is liable if ignorant or not observant of the rules of practice of the courts; Ravenga v. Mackintosh, 2 B. & C. 693; but not for an error of judgment on a point of new occurrence or on the construction of the doubtful meaning of a rule of court. lb.; Godefroy v. Dalton, 6 Bing. 461; [Laid- leru. Elliott, 3 B. & C. 738; Lord Tenterden C. J. in Montriou v. Jeffreys, R. & M. 320 ;] or on a doubtful point of law ; Kemp v. Burt, 4 B. & Ad. 424 ; Elkington v. Holland, 9 M. & W. 659 ; Crosbie r. Murphy, 8 Ir. C. L. Rep. 301 ; [Bowman v. Talhnan, 40 How. Pr. 1 ; Watson v. Muirhead, 57 Penn. St. 161 ; or for a mistake in a nice point of practice, arising on the meaning of an act of parliament. Chapman v. Van Toll, 8 El. & Bl. 896.] The having acted upon counsel's opinion is not conclusive that there was no neg- ligence. Ravenga v. Mackintosh, Kemp v. Burt, Godefroy v. Dalton, ubi sujrra. It is an act of negligence on the part of an attorney to sue out a writ in a court of a peculiar construction without first ascertaining that the court has ma- chinery to carry out the object of the action. Cox v. Leech, 1 C. B. N. S. 617. Or, to bring an action in his client's name, as holder of a foreign bill, without ascertaining that his title was complete by special indorsement as required by the foreign law. Long v. Orsi, 18 C. B. 610; or, if an attorney omit to in- struct counsel to appear in the cause or to give him full instructions. Ireson v. Pearman, 2 B. & C. 799 ; or, if having delivered a brief to counsel he neg- lect to attend in court to give him necessary information. Hawkins v. Har- wood,4 Ex. 503. But he is not responsible for the absence, neglect, or want of attention of the counsel engaged. Lowry v. Guilford, 5 C. & P. 234. He is liable if he allow a cause to be called on without ascertaining if a mate- rial witness be present whereby the plaintiff was nonsuited; Keece v. Ri^hy, 4 B. & Aid. 2o2; if he omit to declare in time; Russell v. Palmer, 2 Wils. 325 ; Pitt v. Yalden, 4 Burr. 2061 ; if he suffer judgment by default when in- structed to defend an action, even though the plaintiff did not prove that he had a defence to the action, or semble, that he had sustained special damage; Godefroy v. Jay, 7 Bing. 413; [see Grayson v. Wilkinson, 5 Sm. & M. 268; Salisbury v. Gourgas, 10 Met. 442;] but not for omitting to plead a plea in abatement, which he was instructed to plead for the purpose of delay : John- son v. Alston, 1 Camp. 176 ; or for negligence and delay in bringing an ac- tion which is not sustainable. Aitcheson v. Padock, Peake, 162; Lee v. Ayr- ton, lb. 119 ; Cates v. Indermaur, 1 F. & F. 259. He is liable for delay in issuing execution; Russell v. Palmer, 2 Wils. 325; Pitt v. Yalden, 4 Burr. 2060 ; or not exercising a proper discretion in doing so. Shaw v. Arden, 9 Bing. 287 ; 2 M. & Sc. 341. He is also liable for negligence in taking an insufficient or invalid instrument as security upon an advance of money by his client ; but it is not his duty to as- certain the value of the proposed security unless that duty be specially cast upon him. Brumbridge v. Massey, 28 L. J. Ex. 59. An attorney employed generally has no power to sue, only to defend. Wright v. Castle, 3 Mer. 12. And though he may in general have power to enter into a reasonable and bona fide compromise of .an action in which he is re- tained, he cannot do so contrary to the express wish and instructions of his client, who is dominus litis. Fray v. Voulea, 1 El. & El. 839; Swinfen v. Swinfen, 1 C. B. N. S. 364; Churchyard i>. Watkins, 27 L. J. Ex. 13; Chambers v. Mason, 5 C. B. N. S. 59 ; is L. J. C. P. 10. [According to the American authorities, an attorney employed in the usual way to conduct a suit is not in general invested with authority to enter into a compromise without the bi DECLARATIONS ON CONTRACTS. ATTORNEYS. 59 Dns. sanction of his client. Bolker v. Parker, 7 Cranch, 430; Vail v. Jackson, 15 Vt. 314; Mayer v. Foulkrod, 4 Wash. C. C. 511 ; Huston v. Mitchell, H Serg. & R 307; Dodds v. Dodds, 9 Penn. St. 315; Davidson v. Rozier, 23 Misson, 287; Lockhart v. Wyatt, 10 Ala. 231; Derwort v. Loonier, 21 Conn. 245; Lewis v. Gamage, 1 Pick. 347; Abbe v. Rood, G McLean, 100; Langdon v. Potter, 13 Mass. 820; Nolan v. Jackson, 16 111. 272; Doub v. Barnes, 1 Md. Ch. 127; Stackhouse v. O'Hara, 14 Penn. St. 88; Filby v. Miller, 25 Penn. St. 264; Smock v. Dude, 5 Rand. (Va.) 039 ; Shaw v. Kidder, 2 How. Pr. 244; Bates v. Seabury, 1 Sprague, 433; Jones v. Ransom, 3 Ind. 327. But in Strauss v. Francis, L. R. 1 Q. B. 379, it was held that it is within the general authority of counsel, retained to conduct a cause, to consent to the withdrawal of a juror, and the compromise being within the counsel's apparent authority, is jinding on the client, notwithstanding he may have dissented, unless the dis- sent was brought to the knowledge of the opposite party at the time. See, also, Prestwich v. Poley, 18 C. B. N. S. 800; Swinfen v. Lord Chelmsford, 5 H. & N. 590; Swinfen v. Swinfen, 2 De G. & J. 381; Potter v. Par- sons, 14 Iowa, 286. See declaration against an attorney for compromising after judgment. Butler v. Knight, L. It. 2 Ex. 109; S. C. 36 L. J. 06.] An attorney is also liable, if guilty of a breach of professional confidence, for any damage thereby occasioned to his client. Taylor v. Blacklow, 3 Sc. 614; 3 Bing. 235. As to his duty to endeavor to refer cause under common law procedure act, 1854, see Chapman v. Van Toll, 8 El. & Bl. 396; 3 Jur. N. S. 1126. As to the liability of attorney employed without reward, see Elsee v. Gatward, 5 T. R. 143; «7 lb. 171; 1 H. Bl. 158. An attorney is bound to deliver up his client's papers to him when required, in a reasonable state of order. North Western Railway Co. v. Sharp, 10 Ex. 451. And if he negligently lose a client's deed, he cannot set up the loss as an answer to an action of detinue. Reeve v. Palmer, 5 C. B. N. S. 91. 1. By an Attorney for Ms Bill of Costs for prosecuting or defending Suits, or for Conveyancing, or otherwise. Commencement, fyc. as in Form ante, 33, and then proceed ••] For the work and labor, care, diligence, journeys, and attendances of the plaintiff by him done, performed, and bestowed,* as the attorney and solicitor of and for the defendant (u) and at his request, and for fees due and of right payable to the («) The common counts for work and senior counsel is necessary, is liable for the materials, and for money paid, are sufficient reasonable value of the services of a counsel- to enable an attorney to "recover the amount lor at law, who acts as senior counsel at the of his bill of costs. Ante, 28. If the busi- trial, in his presence, in consultation with ness were done on defendant's credit for a him and without objection from him, under third person, as to which see Hayward v. a retainer for that purpose by the attorney Fiott, 8 C. & P. 59 ; Grissell v. Robinson, 3 of record, although there was a secret agree- Bing. N. C. 10; state at the asterisk, " as an ment between him aud the attorney of re- attorney and solicitor in and about divers cord that such services should be paid for by businesses, at the request of the defendant, the latter.] When next friend liable to at- and for fees," &c. See Scrace v. Whitting- torney. Hawkes v. Cottrell, 3 H. & X. 243. ton, 2 B. & C. 11. If the third party were As to when an attorney for a mortgagee or to be responsible in the first instance, the lessor may sue the mortgagor or the lessee for defendant can only be charged upon a spe- the costs of preparing the mortgage or lease, cial count upon a" written guaranty, under see Smith w. Clegg, 28 L.J. Ex. 300 ; Gris- the statute of frauds. Noel v. Hart, 8 C. & sell v. Robinson, 3 Bing. N. C. 10. When P. 200. The question of credit is one for the the mortgage goes off through the default of jury, and it is not a question of usacje. Hay- the mortgagor, the mortgagee's attorney can- ward c. Fiott, vbi supra. A person maybe not recover bis costs from the mortgagor in liable to the attorney if he has given him the absence of an express contract to pay grounds for regarding him as his employer, them. Wilkinson v. Grant, 18 C. B. 819. although he lias no legal or equitable inter- The attorney for a defendant in one of sev- est in the subject-matter of the suit. South- era! actions which have been consolidated to all v. Keddy, 1 F. & F. 177. [And in Brigham abide the event of the one trial, and in which v. Foster, 7 Allen, 419, it was held that a the attorney was engaged, has a remedy party to a suit, in which the employment of against the defendants in the other actions, 60 DECLARATIONS ON CONTRACTS. ATTORNEYS. plaintiff in respect thereof, and for materials (x) and necessary things by the plaintiff provided in and about the said work and labor for the defendant and at his request, and for money paid \_fyc. ; add claims for money paid, and ac- count stated, and conclude, as ante, 33, Form 1]. 2. General Count against an Attorney for Negligence in conducting an Action at the Plaintiffs Suit against a Third Person. [That in consideration that the plaintiff retained the defendant, as and being an attorney (y) of the court of , to conduct an action in that court at the suit of the plaintiff against G. H. for the recovery of money claimed (z) to be due to the plaintiff from the said G. H., for reward to the defendant, the defendant accepted such retainer, and promised the plaintiff to conduct the said action with due and proper care, skill, and diligence ; (a) yet the defendant did not conduct the said action with due and proper care, skill, and diligence, (b) whereby the plaintiff was obliged to suffer himself to be nonsuited therein, and lost the costs and expenses incurred by him in prosecuting the said action, and was obliged [or " became liable "] to pay the costs incurred by the said G. H. in defending the same, and the plaintiff has been delayed in recovering the said monev, and is likely to lose the same. A like count for not instructing counsel to appear at the trial, whereby the plaintiff was compelled to withdraw the record. Hawkins v. Harwood, 4 Ex. 503. A like count for negligently conducting a chancery suit. Frankland v. Cole, 2 Cr. & J. 590. A like count for neglect in recovering the amount of a bill delivered to him for the purpose of suing the parties liable. Langdon v. Wilson, 7 B. & C. 640, note (b). as on a joint retainer from the time of con- debt, and it seems better not to do so. See solidation. Anderson v. Boynton, 18 Q. B Lee v. Ayrton, Peake's R. 115; Brown v. 308. In general it must be 'shown in order Jacobs, 2 Esp. R. 726. to charge a corporation that there was a re- (a) This is the promise implied by law ; tainer under the corporate seal. Arnold v. and as it need not be proved, it would seem Mayor of Poole, 4 M. & G. 860 ; Reg. v. not necessary to allege it. Com. L. Pract. Lichfield, 10 Q. B. 534. Aliter, in case of 1852, s. 49. But if there be any special con- quasi corporations, as joint stock commercial tract entered into between the plaintiff and companies incorporated by act of parliament, defendant by which the defendant has con- R. v. Justices of Cumberland, 1 7 L. J. Q. B. traded to perform any work or do any act not 102. [But in the American states it is not necessarily arising out of a simple retainer, necessary to prove a retainer under the cor- as to do work in some special manner, or at a porate seal, or even by vote of the corpora- special time, or upon the terms of " no cure tion. Angell & Ames Corp. §§282, 283; no pay," or" forcosts outof pocket," then the Union Manuf. Co. v. Pitkin, 14 Conn. 174; contract should be declared upon in terms. State Bankw. Bell, 5 Blackf. 127; Bridgton (6) The PI. Rules T. T. 1853,1. 1, pro- v. Bennett, 23 Maine, 422 ; 1 Chitty Contr. vide that several counts on the same cause (11th Am. ed.) 378, note (r), 379, note (t).] of action shall not be allowed; and it is If the action be by an attorney against his therefore expedient to lay the cause of ac- agent, the form maybe: "as "an attorney, tion in a general form. But in cases where and as the defendant's agent for him and at there is no difficulty in proving a particular his request, and for fees," &c. neglect, &c. it may be stated in a more spe- (x) This is correct. Fisher v. Snow, 3 eific shape. This may be effected by alleging Dowl. 27. that defendant did not use due care, &c. in (//) It need not be alleged that the defend- and about the bringing, &c. the said action, ant was an attorney of the court in which " in this, that be proceeded to trial in the action was pending. Peake's Rep. 237 ; 2 said action without taking due care to pro- Chit. Rep. 311. vide and adduce proper evidence on the (z) It is not necessary to charge an actual plaintiff's behalf in support thereof," &c. ac- DECLARATIONS ON CONTRACTS. ATTORNEYS. 61 3. Against an Attorney for Negligence in defending an Action, (c) That in consideration that the plaintiff retained the defendant, as and being an attorney of the court of , to conduct the defence of the now plaintiff in an action depending in that court at the suit of G. II. against the now plaintiff, for reward to the defendant, the defendant accepted such retainer, and promised the plaintiff to conduct the said defence with due and proper care, skill, and diligence ; (d) yet the defendant did not conduct the said defence with due and proper care, skill, and diligence, whereby the said G. II. recovered in the said action a judgment against the now plaintiff for a large sum of money as for the damages and costs of the said G. H. therein, and the plaintiff became liable to pay other costs and ex|ienses.] 4. Against an Attorney {employed to conduct an Action against another Attorney for Negligence') for carelessly omitting to adduce Proper Evidence, whereby Plaintiff was nonsuited. Godefroy v. Dalton, 6 Bing. 460 ; Hoby v. Built, 3 B. & Ad. 350. 5. Against an Attorney for Carelessness in investing Plaintiffs Money upon an Insufficient Annuity Security. See form, &c. Whitehead v. Greetham, 2 Bing. 464 ; and form and cases, Ireson v. Pearman, 3 B. & C. 799; Wilson v. Tucker, 3 Stark. R. 154; Kemp v. Burt, 4 B. & Ad. 424 ; [Dartnall v. Howard, 4 B. & C. 345 ; Hayne v. Rhodes, 8 Q. B. 342 ; Watts v. Porter, 3 El. & Bl. 743. See Harman v. Johnson, 2 El. & Bl. 61.] 6. Against an Attorney for suffering his Client to execute an unusual Covenant on assigning a Term. Stannardv. Ullithorne, 10 Bing. 491. [See Parker v. Rolls, 14 C. B. 691.] [7. Against an Attorney for not taking care of his Client's Papers. North Western Railway Co. v. Sharp, 10 Ex. 451. And so for disclosing a defect in his client's title. Taylor v. Blacklow, 3 Bing. N. C. 235.] 8. Against an Attorney by Trustees for not investigating Security upon which they were about to advance Trust Funds, and for not preparing Sufficient Securities. Brumbridge v. Massey, 28 L. J. Ex. 59 ; [Wigens v. Cooke, 6 C. B. N. S. 784.] 9. Against an Attorney for not taking Proper Measures to obtain a Prisoner's Discharge from Custody. Shilcock v. Pasman, 7 C. & P. 289. cording to the fact, " and by reason thereof," (c) Hoby v. Built, 3 B. & Ad. 350 ; Reece &c. as above. See specific allegations of v. Righy, 4 B. & Aid. 202 ; Godefroy v. Jay, negligence in the eases referred to in the Ob- 7 Bing. 413. See next form, servations, ante, 55-58. (d) Ante, 60, note (6). 62 DECLARATIONS ON CONTRACTS. AUCTIONEER. 10. By an Executor against the Executor of an Attorney for the Can !>ssnes8 of the latter in the Investigation of the Sufficiency of the Security for an Annuity purchased by the Plaintiff's Testator. See form in the last edition of this work, ivhich may he readily altered to the present system of pleading. 11. Against Attorney for not paying over to his Client Money levied under a Judgment. Bevins v. Hulme, 15 M. & W. 188 ; 3 D. & L. 309. [12. Against an Attorney of Plaintiff for misrepresenting to the Sheriff the Address of the Debtor. Childers v. Wooler, 2 El. & El. 287. 13. Against Attorney for neglecting to enforce a Judgment and accept- ing a smaller Sum in satisfaction, contrary to the Plaintiff' 's Direc- tions. Butler v. Knight, L. R. 2 Ex. 109. 14. Against an Attorney for compromising an Action contrary to the Directions of the Client. Fray v. Voules, 1 El. & El. 839 ; and see Chown v. Parrott, 14 C. B. N. S. 74.] AUCTIONEER AND APPRAISER. 1. By an Auctioneer and Appraiser for his Bill, (e) Commencement as ante, 5.] For money payable by the defendant to the plaintiff for the work, journeys, and attendances of the plaintiff by him done, performed, and given as an auctioneer and appraiser, and otherwise, in en- deavoring to sell, and in and about appraising, valuing, and selling, by auc- tion and otherwise, goods and chattels for the defendant at his request, and in other business of the defendant at his request, and for \_add for materials pro- vided or money paid, if applicable, and account stated, and conclude as ante, 33, Form 1]. (e) The common count for work and labor out annual licenses chargeable with a duty, would suffice. Ante, 33. An auctioneer may which is a condition precedent to recovering bring an action in his own name for the for commission. Palk v. Force, 12 Q. B. price of goods sold by him as auctioneer, al- 666. A vendee may maintain an action though the purchaser had paid the principal against the auctioneer to recover the deposit ; for whom the goods were sold. Robinson v. Duncan v. Cafe, 2 M. & W. 244 ; for he Rutter, 4 El. & Bl. 954. [An auctioneer, is a stakeholder between the parties. Har- employed to sell, may ordinarily maintain rington v. Hoggart, 1 B. & Ad. 577. [As to an action for the price or for the property sales by auction of land, and puffing, see itself. Thompson v. Kelly, 101 Mass. 296; 30 & 3l" Vict. c. 48. An auctioneer has no 2 Kent, 536; Beller v. Block, 19 Ark. 566; authority to take a bill of exchange. Wil- Tyler v. Freeman, 3 Cush. 261.] The 8 & 9 liams v. Evans, L. R. 1 Q. B. 352.] Vict. c. 76, s. 1, requires appraisers to take DECLARATIONS ON CONTRACTS. AWARDS. 63 2. Against an Auctioneer at a Sale, advertised as without reserve, by the Plaintiff, the Highest bond fide Bidder, for not completing the Sale to the Plaintiff, but knocking the Property down to the next Bidder, the Owner. Sec the law and form, and a form suggested per Willes J. Warlow v. Har- rison, [1 El. & El. 295, 309 ; Mainprice v. Westley, 6 B. & S. 420.] 8. Against a Bookseller, who undertook to manage a Sale for the Plaintiff, and to be responsible for the Proceeds, together with the Auctioneer. Cholmondeley v. Payne, 8 C. & P. 482. [4. Against the Purchaser, on the Conditions of Sale at an Auction, for not clearing away the Lots purchased.^ Green v. Baverstack, 14 C. B. N. S. 204. AWARDS. Obs. — See, in general, 1 Saund. 28; Watson on Awards; Russell on Awards; 2 Chit, on Pleading, in notes ; 2 Chit. Arch. Index, in voc. The remedy by action, for non-performance of an award, is cither on the submission or on the award. Where there is an arbitration bond the declaration may be framed on the bond as a common money bond; see post ; Ferrer v. Oven, 7 B. & C. 427; assigning a breach in the replication ; or suggesting a breach upon the roll, if the defendant suffer judgment by default ; or the breach may be as- signed in the declaration. See a form, Ferrer v. Oven, 7 B. & C. 427. ' Where the action is brought to recover money awarded to be paid, the indebitatus count, post, 67, will suffice. Crump v. Adney, 1 Cr. & M. 362; Sutcliffe v. Brooke, 3 D. & L. 302. But it may often be prudent to declare especially on the award in order to narrow the case in evidence at the trial; as never in- debted to the common count would put more in issue than if the defendant pleaded merely a denial of the submission, or some other allegation in the special count. An action also lies on the submission for revoking the arbitra- tor's power. See the stat. 3 & 4 W. 4, c. 42, s. 39, prohibiting such revoca- tion where the submission is by judge's order, or rule of court, &c. 2 Chit. Arch. 1544. [Count on an award made under an arbitration in conformity with conditions of sale. Boss v. Helsham, 36 L. J. Ex. 20; S. C. L. R. 2 Ex. 72.] 1. Upon an Award made in pursuance of a Submission between the Par- ties, where the Time for making the Award was enlarged, (f) For that by a certain agreement in writing, (g) [or "articles of agreement under seal," or " by an indenture sealed with the seals of the plaintiff and defendant,"] made by and between the plaintiff and the defendant, it was, amongst other things, agreed 'by and between the plaintiff and the defendant that [set out the material parts of the agreement] certain matters in differ- ence (h) between them should be and the same were thereby referred to the final award and determination of J. R. and T. B., arbitrators chosen by and (/) As to the effect of such an enlarge- (g) State " in writing," if the fact; but ment on the original promise to perform a verbal submission suffices, the award, see Armitage v. Coates, 4 Ex. (Ii) It is not essential to show the cause 641 • of dispute ; 2 Saund. 61 h, note (1) ; and 64 DECLARATIONS ON CONTRACTS. AWARDS. between the said parties, or in case they should disagree, then to the award aud determination of such person as the said J. R. and T. B. should by writing under their hands appoint as an umpire, before they should proceed upon the said reference, so as the said arbitrators or umpire should make their or his award, or umpirage, in writing, ready to be delivered to the said parties, or such of them as should require the same, on or before the day of , A. d. 186-, or on or before such other day as the said arbitrators or umpire should, by writing, from time to time appoint ; (i) and it was thereby agreed that the costs of the said reference should be in the discretion of the said arbi- trators or umpire ; *and the plaintiff says that the said J. R. and T. B., before they proceeded upon the said reference, by writing under their hands, ap- pointed one G. H. to be umpire (k) between the plaintiff and defendant con- cerning the said matters in difference so referred; and that the said J. R. and T. B. not agreeing in the said premises, the said G. H., afterwards, and before the time so appointed for making the said award or umpirage, took upon him- self the burden of the said arbitration, and before that time, by writing under his hand, enlarged the time for making his award and umpirage in the prem- ises until the clay of , A. d. , and before that day, the said G. H., having taken upon himself the burden of the said umpirage, made and pub- lished his award or umpirage, in writing, (I) of and concerning the said mat- ters in difference, so referred as aforesaid, ready to be delivered to the said parties, and did thereby award, find, and determine that there remained a bal- ance due from the defendant to the plaintiff of £ ; and he did therefore thereby award, order, and direct (m) the payment of such balance to be made by the defendant to the plaintiff on or before the day of then next ; and he did thereby further award, order, and direct that each of the said parties in difference should pay his own costs and charges attending the same reference ; («) and although all conditions in law have been performed, and all events have happened, and periods of time have elapsed to entitle the plaintiff to a performance of the said award, and to entitle him to maintain this action, (o) yet the defendant hath not paid the said sum of £ , or any part thereof. \_Add counts on the original debt and on accounts stated. See the award is binding if there were a mutual execute in the presence of each other, submission, though no good cause of action. Peterson v. Ayre, 15 C. B. 7:24; Wade v. Cook v. Songats, 1 Leon. 103; 4 Leon. 31 ; Dowling, 2 El. & Bl. 44. Chit. jr. Contr. ; or the claim was only of (w) If the award direct that the costs of an equitable nature. Gisborne v. Hart, 5 M. the award shall be paid in moieties or pro- & W. 50; Hawkins v. Benton, 8 Q. B. 479. portions by each of the parties, and that if (i) Ante, 63, note (/). one pays the whole amount, the other of (k) As to the appointment of an umpire, them should repay his proportion, the dec- Lord v. Lord, 5 El. & Bl. 404 ; 26 L. J. Q. laration should contain au averment to this B. 34 ; Com. L. Pr. Act, 1854, ss. 12, 13, 14. effect, and allege that the plaintiff paid the (/) If the award is required by the sub- whole amount, and that defendant has not mission to be in writing or under seal, the repaid his share. The amount paid by declaration should show that the award was plaintiff in excess of what he was bound to so, or it will be demurrable. Everard v. pay, is not recoverable as money paid. Paterson, 2 Marsh. 304. Bates v. Townley, 2 Ex. 152. (m) A request to pav is equivalent to a (o) This general averment is sufficient, direction to pay. Smith v. Hartley, 10 C. L. P. Act, 1852, s. 57, ante, 39, note (u), C. B. 800. As to the manner of making an and cases cited in notes in Appendix, award, see Be Beck, 1 C. B. 695, N. S. On Notice of the award need not be alleged or a reference to three arbitrators, or any two proved ; 2 Saund. 62 a, note (4) ; nor is a re- of them, an award executed by two in the quest or demand of payment necessary, un- absence of, and without finally consulting less the award direct the money awarded to the third, is bad ; and the two must also be paid on demand. DECLARATIONS ON CONTRACTS. AWARDS. 65 Form 1, ante, 84. An award is not, however, evidence of an account stated as between the parties to the submission. Bates v. Townley, 2 Ex. 152.] [la. Form 'prescribed by the Massachusetts Practice Act. And the plaintiff says the parties, by their agreement in writing, a copy whereof is hereto annexed, referred the matters therein mentioned to arbi- trators : and the arbitrators have made an award thereon in writing, a copy whereof is hereto annexed. [And performance of condition by plaintiff, when ssary to be proved, and the non-performance by defendant, tvltich is relied on. If it is for the mere payment of money, aver as follows :] And the defend- ant owes the plaintiff the amount of said award.] 2. Upon an Award made by Virtue of a Judge's Order in a Cause. For that differences having arisen and being depending between the plain- tiff and the defendant ["of and concerning divers sums of money claimed by the said plaintiff to be due to him from the said defendant and otherwise," (p)] the plaintiff commenced an action in her majesty's court of queen's bench, [or " common pleas," or " exchequer of pleas,"] at Westminster, against the defend- ant [" for the recovery from him of the said sums of money so claimed to be due to the plaintiff as aforesaid,"] which said action, at the time of making the order hereinafter mentioned, was depending and undetermined ; and there- upon, by an order of the Honorable Mr. Justice , one of the justices of the said court of " queen's bench," made in the said action, it was amongst other things ordered, with the consent of the attorneys on both sides in the said cause [set out the material parts of the order], that all matters in difference between the said parties thereto should be referred to the award, order, arbi- trament, final end, and determination of E. F., Esq., so that he should make and publish his award in writing of and concerning the matters aforesaid, ready to be delivered to the said parties, or either of them requiring the same, on or before the day of , a. d. ; and that the costs of the said action should abide the event of the said award to be made and published as aforesaid ; and that the costs of the said reference should be in the discretion of the said arbitrator ; and that the said parties should respectively in all things duly abide by and perform the said award as therein directed. [Pro- ceed, stating the award, fyc. as in the last form from the asterisk.] 3. For the Breach of the Provisions of an Aivard, which ordered Defendant not to pirate Plaintiffs Inventions. Stewart v. Nicholson, 8 Bing. N. C. 113. [3a. Upon an Award made under an Arbitration in Conformity with Conditions of Sale. Boss v. Helsham, L. R. 2 Ex. 72.] 4. On an Award made under a Rule of Court. Gisborne v. Hart, 5 M. & W. 50 ; Hawkins v. Benton, 8 Q. B. 479 ; [Sut- cliffe v. Brooke, 3 D. & L. 302 ; Dresser v. Stansfield, 14 M. & W. 822 : (p) Ante, 62, note (e). VOL. II. s 66 DECLARATIONS ON CONTRACTS. AWARDS. Harrison v. Creswick, 13 C. B. 399 ; Armitage v. Coates, 4 Ex. 641 ; Hat- ton v. Royle, 3 H. & N. 500 ; Lievesley v. Gilmore, L. R. 1 C. P. 570.] 5. On an Award for the Costs, $c. where the Arbitrator decided in Favor of the Defendant. Duckworth v. Harrison, 4 M. & W. 432. See Rich v. Unwin, 6 Ex. 908 ; [Law v. Blackburrow, 14 C. B. 77 ; Holdsworth v. Barsham, 31 L. J. Q. B. 145.] 6. Indebitatus Count on an Award. (^) Commencement as ante, 33, Form 1.] For money payable by the defend- ant to the plaintiff upon and by virtue of an award made by one E. F. on a submission made by the plaintiff and defendant to the award of the said E. F. concerning certain matters in difference depending between them, and upon which reference the said E. F. awarded that the defendant should pay to the plaintiff the sum of £ , at a day now past [if there be any doubt about the regularity of the award, insert counts on the original cause of action ; and on accounts stated, as ante, p. 34. But the award itself is no evidence under the count on an account stated. Bates v. Townley, 2 Ex. 152.] [Like counts. Sim v. Edmands, 15 C. B. 240 ; Everest v. Ritchie, 7 H. & N. 698.] 7. Indebitatus Count on an Umpirage. For money payable by the defendant to the plaintiff, upon and by virtue of an umpirage made by one E. F. by virtue of a submission made by the plain- tiff and defendant to the award, order, and determination of G. II. and I. K. concerning certain matters in difference then depending between the plaintiff and defendant, and thereby empowering the said G. H. and I. K., in case they should not agree in making such award, to appoint a third person to deter- mine finally the said matters in difference ; and whereupon the said G. H. and I. K., having taken upon themselves the burden of the said arbitration, and not agreeing in making the said award, by virtue of the aforesaid power, ap- pointed the said E. F. as an umpire (r) to award and finally determine the said matters in difference between the plaintiff and defendant, upon which said reference the said E. F., having taken upon himself the burden of the said umpirage, awarded that the defendant should pay to the plaintiff the sum of £ , at a day now past ; and for \_fyc. ; conclude as in the last form']. [ Count on a reference to a single arbitrator. Roberts v. Eberhardt, 3 C. B. N. S. 482 ; Smith v. Trowsdale, 3 El. & Bl. 83 ; Hatton v. Royle, 3 H. & N. 500. On a reference to three arbitrators. Duckworth v. Harrison, 4 M. & W. 432. On a reference by agreement to two arbitrators and a third appointed by them. Bates v. Townley, 1 Ex. 572; Wade v. Dowling, 4 El. & Bl. 44; Williams v. Wilson, 9 Ex. 90. Against executors. Dowse v. Coxe, 3 Bing. 20 ; Riddle v. Sutton, 5 Bing. 200 ; Williams v. Wilson, 9 Ex. 90.] (q) See Observation, ante, 63. must be appointed, see Lord v. Lord, 5 El (r) As to the mode in which an umpire & Bl. 404 ; and see ante, 64, note (k). DECLARATIONS ON CONTRACTS. BAILEES. 67 BAIL BOND, (s) Obs. — An action on a bail bond occurs so seldom that it has been thought sufficient to refer to the last edition of this work, where a form is given which may be easily adapted to the present rules of pleading and practice. See, also, Chitty's Forms. See a form of declaration where a judge had made an order for a capias, Barnes v. Keane, 15 Q. B. 75 ; also a form on a bond given by the defendant, a trader, and two sureties, under 1 & 2 Vict. c. 110, s. 8, to pay the debt and costs in an action, or to render, Hinton v. Acraman, 2 C. B. 367. BAILEES. Obs. — There are several descriptions of bailment which have been arranged by Sir William Jones in his treatise on bailments, under five heads, viz.: 1. Depositum, which is a naked bailment, without reward, of goods to be kept for the bailee; 2. Mandatum, or commission, when the mandatory undertakes, without recom- pense, to do some act about the thing bailed or simply to carry it ; 3. Commodatum, or loan for use, when goods are bailed, ivithout pay, to be used for a certain time by the bailee ; 4. Pignori acceptum, when a thing is bailed by a debtor to his creditor, in pledge, or as a security for his debt ; 5. Locatum, or hiring, which is always for a reward; and this bailment is either, 1. Locatio operis faeiendi, when work and labor, or care and pains are to be performed or bestowed on the goods delivered; and, under this head, may be considered the duties of innkeepers and warehousemen, with respect to goods intrusted to their care; 2. Locatio rci, by which the hirer gains the tempo- rary use of the thing ; 3. Locatio operis mercium vehendarum ; where goods are delivered to a public carrier or private person to be carried. See Jones on Bailments, 35, 36; Coggs v. Bernard, 2 Lord Raym. 912 ; [1 Chitty Contr. (11th Am. ed.) 661 et seq.f] Chitty & Temp, on Carriers. In general it is optional on the part of the plaintiff to declare against a bailee in form ex contractu, for the breach of the express contract entered into by him, or the promise implied from the act of bailment; or in tort for the breach of the duty which is by law impliedly cast on the bailee; but it seems that in whatever shape he may frame his declaration the action is still one of contract, wherever the liability of the defendant in fact arises out of a contract. Legge v. Tucker, 1 H. & N. 500 ; [1 Chitty PL 114, 150.] See the forms following these observations, also the titles " Carriers," " Farriers," " Hire of Goods," and the forms in tort against Bailees. As to criminal pro- ceedings against Bailees, see 20 &21 Vict. c. 54, s. 4. 1. Against a Bailee for Reward (viz. a Watchmaker) , for not using due care in repairing the (roods ; for not taking care of them ; and for not returning them on request (in one count). For that the plaintiff, at the request of the defendant, retained and em- ployed the defendant and delivered to him a certain watch of the plaintiff, to (s) See the law and practice ; Chit. Arch. Dowl. 34. As to the extent of liability of 753; Pr. li. H. T. 1853, r. 82 et seq. The bail, see Jonas v. Tepper, 28 L. J. Q. B. 85 ; plaintiff suing as assignee must necessarily Pr. B. Hill. T. 1853, r. 109, post, Appendix, set out the condition, to show his title under Common bail having made default, and then the statute 4 & 5 Ann. c. 16, s. 20, which rendered their principal, are liable to an ac- enables him to sue. Where the sheriff sues, tion on the bond for debt and costs, unless which lie may now do in any court, Pr. R. proceedings are stayed by a judge's order; H. T. 1853, r. 83, he may declare as on a and if the judge's order is not taken advan- common money bond. In an action on a tage of until judgment is signed, the bail bail bond, the debt and costs need not be can have no relief. Jallicks v. Costar, 28 L indorsed on the writ. Smart v. Lovick, 3 J. Ex. 209. 68 DECLARATIONS ON CONTRACTS. BAILEES. be repaired by the defendant in the way of his said trade or business of a watchmaker, for reward to the said defendant upon certain terms agreed upon between the plaintiff and defendant, that is to say, that the defendant should use due care, diligence, and skill in repairing the said watch, and take due and proper care thereof whilst the same should be in his the said defendant's pos- session for the purpose aforesaid, and redeliver the same to the plaintiff on request ; yet the defendant did not use due care, diligence, or skill in repair- ing the said watch, [but performed certain work under color of repairing the said watch in so careless, unworkmanlike, and unskilful a manner, that no benefit was derived therefrom by the plaintiff in that behalf, and the said watch was not improved,] and did not take due and proper care (t) of the said watch whilst the same was in his possession for the purpose aforesaid, and in consequence of the carelessness, negligence, and improper conduct of the said defendant the said watch became and was broken, injured, and deteriorated in value. And although the plaintiff requested the defendant to redeliver the said watch to him the plaintiff, and a reasonable time for the defendant so doing hath long elapsed, yet the defendant neglected and refused so to do, whereby the plaintiff was deprived of the use and value thereof. And the plaintiff claims £ . [_A count may be added for the conversion of the watch ; or for the detention of it, if the plaintiff seek to recover the watch itself. ~\ 2. Against a Bleacher for not bleaching Cloths properly, and for injuring them. See the form in the last edition of this work, which may be adapted to the present system of pleading. 3. Against a PaivnbroJcer for losing a Pledge, (u) For that the plaintiff, at the defendant's request, pawned with and delivered to the defendant, as and being a pawnbroker, goods of the plaintiff [that is to say, a gold watch], as and by way of pledge to the defendant for money ad- vanced thereon by the defendant to the plaintiff, and upon the terms that the defendant should take due and proper care of the said goods until the same should have been redeemed by the plaintiff and redelivered to him or sold by the defendant according to the statutes relating to pawnbrokers. Yet the defendant, whilst he had the custody of the said goods as such pawnbroker, and before the time had expired for redeeming the same, negligently lost the said goods \_or " damaged and spoiled the said goods."] (t) In all cases of bailment the duty of nard, 2 Ld. Raym. 917; or accidental fire, the bailee may be alleged in the declaration Rex v. Cording, 1 N. & M. 3,5; [1 Chitty to be "safely ami securely" to keep the Contr. (11 Am. ed.) 6G9, 670.] A pawn- goods. Ross v. Hill, 2 C. B. 877. [See 1 broker is not excused from liability though Chitty Contr. (11th Am. ed.) 672, G73, and his premises are burglariously entered into notes.] and the goods stolen, if he has left his (u) See per Parke B. Cheeseman v. premises in a very insecure state, and with- Exall, 6 Ex. 341-344. The pawnee in out protection at night. See Shackell v. this case is liable for ordinary neglect, and West, 8 W. R. 22, Q. B. The statutes, re- for a loss arising from anything except un- .lating to pawnbrokers are 30 Geo. 2, c. 24 ; avoidable force ; Jones, 5-79 ; Coggs v. Ber- and 39 & 40 Geo. 3, c. 99. DECLARATIONS ON CONTRACTS. BAILEES. 69 [4. Against a Bailee for not redelivering Goods bailed. That in consideration that tin- plaintiff delivered to the defendant cer- tain goods to be safely kept and taken care of by the defendant, and to be redelivered by the defendant to the plaintiff on request, for reward to the defendant, the defendant promised the plaintiff to safely keep ami take care of the said goods and to redeliver the same to the plaintiff on request ; and afterwards the plaintiff requested the defendant to redeliver to him the said goods, and a reasonable time for the redelivery thereof elapsed after such request, yet the defendant did not redeliver the said goods to the plaintiff, whereby [the plaintiff was prevented from letting the said goods to hire to G. II., and] the same are lost to the plaintiff. Like counts. Moss v. Smith, 1 M. & G. 228 ; Crossfield v. Inch, 8 Ex. 159 ; Corbett v. Paekington, 6 B. & C. 268 ; Van Toll v. South Eastern Eailway Co. 12 C. B. N. S. 75. Count on a bailment of a ship for not redelivering it according to the con- tract. European & Australian Royal Mail Co. v. Boyal Mail Steam Packet Co. 30 L. J. C. P. 247. Against a bailee for not redelivering goods pledged with him as security for advances of money. Stanton v. Collier, 3 El. & Bl. 274.] 5. Against a Bailee of a Horse, for not training, feeding, and returning same, according to Terms specially agreed upon. For that it was agreed by and between the plaintiff and defendant that the defendant should have the use of a horse of the plaintiff for a period which has now elapsed, and take care of and properly feed and keep the said horse during that time, and train the same for the plaintiff, for reward to be paid by the plaintiff to the defendant, and return the horse to the plaintiff at the ex- piration of the said time, and the defendant received the said horse from the plaintiff, and had the possession and use thereof for the purpose and on the terms aforesaid, and for the period of time aforesaid, \_here aver performance of all conditions precedent, as ante, 39, between the**] yet the defendant did not during that time take care of the said horse, or train or properly feed the same ; but the defendant so improperly fed and kept the said horse that the same became out of condition, and the defendant took so little care thereof that the same was through the neglect of the defendant injured, and the defendant hath not yet returned the same to the plaintiff. And the plaintiff claims £ . 6. G-eneral Count against a Bailee for not taking care of Goods, and for losing same. For that the plaintiff, at the defendant's request, delivered to the defendant, and the defendant had the care and custody of goods of the plaintiff, that is to say, [" household furniture,"] upon the terms that the defendant should take due and proper care thereof whilst they were in his custody ; yet the defend- ant, whilst he had the care and custody of the said goods, took so little and such bad care thereof that the same became damaged and injured and lost to the plaintiff. And the plaintiff claims £ . 70 DECLARATIONS ON CONTRACTS. BANKERS. BANKERS. 1. By a Customer against his Bankers for not paying the Customer's Check, (x) [That the defendant was :i banker, and carried on the business of a banker at a banking-house in ; and thereupon the plaintiff retained and em- ployed the defendant as his banker, and the defendant accepted the said retainer and employment, upon the terms (amongst other things) that the defendant would from time to time, out of any moneys of the plaintiff in his hands applicable to that purpose, pay on presentment any check which might be drawn by the plaintiff upon the defendant, and duly presented at the said banking-house of the defendant on payment by any person lawfully entitled to receive the amount of such check, not exceeding the amount of the moneys of the plaintiff in the hands of the defendant applicable to the payment thereof at the time of the presentment thereof; and thereafterwards the plain- tiff drew a check directed to the defendant, and thereby required the defendant to pay to G. H. or bearer $ , and delivered the said check to the said G. H. [in payment of a debt due to the said G. H. from the plaintiff], and the said G. H., being the lawful holder of the said check and entitled to receive the amount thereof, duly presented the said check at the said banking-house of the defendant for payment, and all conditions were fulfilled and all things happened and all times elapsed necessary to entitle the plaintiff to have the said check paid by the defendant when so presented as aforesaid ; yet the defendant did not pay the said check when so presented as aforesaid, whereby the plaintiff was injured in his credit and reputation, [and the said G. H. refused to deal with the plaintiff, and deliver goods to the plaintiff on credit as he otherwise would have done.] Against a banker for not presenting within a reasonable time a check on a third party paid in by a customer. Hare v. Harty, 10 C. B. N. S. 65. Against a banker for not complying with instructions as to the disposal of money deposited with him. Clerk v. Laurie, 1 H. & N. 452.] 2. Against Bankers by the Bearer of a Bank-note issued by them. Post, tit. " Promissory Note." (x) See a form for not honoring the plain- tomcr who pays money into the bank, is the tiff's acceptance made payable at his hank- ordinary relation of debtor and creditor with er's, liolin v. Steward, 14 C. 13. 595; also a a superadded obligation arising out of the form in tort for not paying a check, Tas- custom of bankers to honor the customer's Bell o.Cooper,9 C.B. 510; and other forms, checks. See Pott v. Clegg, 1C M. & W. 321, post, "Tort.'' [Liability of banker to re- 328 ; Hill v. Foley, 2 H. L. Cas. 28 ; Exparte fund money paid for unused circular notes. Waring, 36 L. J. C. 151. Where the usual The Conflans Stone Quarry Co. v. Parker, dealing of a hanker was to credit a customer L. R.3C.P. 1.] Bankers may be sued either in his book against bills, &c. paid in, and to in contract for the breach of their express or honor the checks of the customer, he was implied contract, or in tort for the breach of held liable for refusing to pay a check with- out^, which results from their employment'; out having given notice that he discontin- but in whichever form the declaration is ned such dealing. Camming v. Shand, 5 framed, the action is one of contract. The II. & N. 95. A hanker, paying a forged or jury may give more than nominal damages, altered check, cannot charge the customer though no special damage be proved. Mar- with the amount. Bull v. Fuller, 5 B. & C. zetti v. Williams, 1 I!. & Ad. 415; Rolin v. 750. A banker having paid a check in ignor- Steward, 14 r. B. 595. As to the payment ance that he then had no assets of the cus- of crossed checks, see 21 S 22 Vict. c. 79; tomer, cannot recover back the amount from Simmons v. Taylor, 2 C. B. X. S. 528, de- the payee. Chandlers v. Miller, 13 C. B. X. cided before that statute, and not now law. S. 125.] [The relation between a hanker and his cus- DECLARATIONS ON CONTRACTS. BILLS. 71 BILLS OF EXCHANGE. Jus. — Pleadings in actions on bills of exchange and promissory notes are not of su.li frequent occurrence as they formerly were; the remedies upon these in- struments having been greatly facilitated by the prevention of frivolous or fic- titious defences l>\ " The Summary Procedure on Bills of Exchange Act, is.').".," L8 & 19 Vict. c.67. Bui Btill in all cases where there is aprbnafa defence to the art inn. or where there are counts applicable to the original con- sideration for the bill or note (R. II. T. 185,8), there should be pleadings as in ordinary actions. An action under the act can only be brought by & bond fide holder; and it, has been made a question whether an executor of a party to a bill can sue or be sued under this act. Leigh v. Baker, 2 C. B. N. S. 367; In re Skiggs, 28 L. J. Chanc. 438. The action must be commenced within six months after the bill or note became due and payable; s. I ; Leigh v. Baker, 2 C. B. \. S. 367; and an action cannot be maintained under this acl upon a bill or note payable on demand, after the lapse of sis: months from its date, a promissory note payable on demand being due immediately upon the day of its date. Norton v. Elian, 2 M. & W. 461 ; Thorpe v. Coombe, R. & M. 388; Waters v. Earl of Thanet, 2 Q. B. 75 7-769. The plaintiff may proceed under this act, or by the ordinary action; but he can only adopt (he former course if the plain- tiff is within the jurisdiction. No other claim but that on ihe bill, and the original consideration for the bill, can be included in the writ. R. IL. T. 1858, see K. M. T. 1858. An action under the act must be commenced by writ of summons in the form given in tlu- schedule to the act, with the various indorsements and notices specified in that form, see post, 75. Robinson r. Cotterell, 1 1 Ex. 4 7 G ; Hall p. Coates, lb. Reg. Gen. M. T. 1855. As to what amendments may be made in the indorsements without vitiating the service of the writ, see Knight v. Pocock, 17 C. B. 17 7. The holder of any bill or note may issue one writ against all or any number of the parties to such bill'or note; and such writ shall be the commencement of an action or actions against the parties named respectively, and all sub- sequent proceedings against such respective parties shall be in like man- ner, so far as may be, as if separate writs had been issued (s. 6), so that if leave be given to appear and defend, the pleadings must be against each •defendant separately. [1 Chitty PL 50, note (6).] The service of the writ must be personal (s. 1), unless dispensed with under s. 17 of the C. L. P. Act, 1852. The defendant may, within twelve days from the service of the writ, apply to a judge at chambers (whose decision may be reviewed by the court, Pollock o. Turnock, 1 II. & X. 741), for leave to appear and defend. S. 2. Upon payment into court of the sum indorsed upon the writ, or upon affidavits sat- isfactory to the judge disclosing a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the judge may deem sufficient, the judge shall grant such leave to ap- pearand defend. S. 2. This application is made ex parte ; but the judge may grant only a rule n /.<.■/. 2 Chit. Arch. L059. Sunday is not included in days for appear nice, if it is the last day, as 11. 1 7 1. II. T. l.S.j.1, applies. Lewis v. Calor, 1 F. & F. 306. Leave will be given to appear and defend, although the defence disclosed be strictly technical, or even doubtful. Matthews e. Marsland, 27 L. J. Ex. 148. The affidavit need not show a defence with the same certainty as is required in a plea. It is sufficient to disclose reasonable and plausible grounds for supposing there is a defence. Clay '•. Turley, 27 L. ,). Ex. 2. This order to appear and defend will lie set aside if obtained fraudulently. Pollock V. Turnock, 1 II. & N. 741. The plaintiff may sign judgment if the defendant has not ap- peared, upon filing an affidavit of personal service of the writ, or ah order to proceed under s. 17 of the C. L. P. Act, L852. The judgment maybe set aside, or execution stayed or set aside, Or leave may be given to appear and defend after judgment upon term. S. 3. The judgment may be signed for any sum not exceeding that indorsed on the writ, together with interest, if any, at the rate specified, to the date of the judgment, and a sum for costs 72 DECLARATIONS ON CONTRACTS. BILLS. Obs. fixed by the masters; see R. G. M. T. 1855; unless the plaintiff* claim more than such fixed costs, in which case the costs are to be taxed in the usual way. S. 1. Error does not lie upon the judgment (s. 1), and execution thereon may be issued forthwith. S. 1. The plaintiff may be ordered to de- posit the bill, and give security for costs. S. 4. The expenses incurred in not- ing for non-payment or non-acceptance, or otherwise by reason of the dis- honor of the bill or note, may In- recovered under the act in the same way as the amount of the bill or note. S. ■ >. The C. L. P. Acts, 1852 and 1854, and all rules made pursuant thereto, shall extend so far as applicable to proceed- ings under the act, s. 7 ; and sec Leigh v. Baker, 2 C. B. N. S. 367 ; Knight v. Pocoek, 1 7 C. B. 17 7. A writ which has been sued out under the act in a case not within the act may be amended under s. 222 of the C. L. P. Act, 1852, to make it a good writ under that act. Leigh v. Baker, supra. By s. 8, the act applies to the C. P. of Lancaster and Durham, and by s. 9 can be made applicable to the county courts, which has been done. In an action in the county court under tins act, the defendant may avail himself of any defence of which the facts admit, and is not confined to that disclosed on the alrida- vit on which he is let in to defend. Saul o. Jones, 1 El. & El. 59. As to the operation of the City of London Small Debts Act, 15 Vict. c. 77, on bills for less than 20/. see Healey v. Jones, 27 L. J. Q. B. 183. 1. Form of Writ of Summons. Victoria by the grace of God [#c] To C. D., (y) of , in the county of . We warn you, that unless within twelve days after the service of this writ on you, inclusive of the day of such service, you obtain leave from one of the judges of the courts at Westminster to appear, and do within that time appear in our court of , in an action at the suit of A. B., the said A. B. may pro- ceed to judgment and execution. Witness [fyc.] • Memorandum to be subscribed on Writ. N. B. This writ is to be served within six calendar months from the date hereof, or, if renewed, from the date of such renewal, including the day of such date, and not afterwards. Indorsement to be made on the Writ before service thereof This writ was issued by E. F., of , attorney for the plaintiff [or " this writ was issued in person by A. B., who resides at" [mention the city, toion, or parish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence]. Indorsement. The plaintiff claims £ , principal and interest [or " £ , balance of principal and interest"], due to him as payee [or "indorsee," fyc.~] of a bill of exchange or promissory note, of which the following K a copy : [Here copy bill of exchange or promissory note and all indorsements upon it (2).] And also shillings for noting [if noting has been paid] and for costs, (a) And if the amount thereof be paid to the plaintiff or his attorney within four (b) days from the service hereof, further proceedings will be stayed. (y) The writ may be directed to all or (a) This claim for noting and costs is not any of the parties to the bill or note. Ante, in the form prescribed by the act, but was Obs. p. 71. added by R. M. T. 1855. («) Maker's name omitted may be amended (b) The number of days was tilled up by under 15 & 16 Vict. c. 76, s. 20*, on payment the judges by K. M. T. 1855. of costs by plaintiff. Knight v. Pocoek, 17 C. B. 177. DECLARATIONS ON CONTRACTS. BILLS. 73 Notice. Take notice that if the defendant do not obtain leave from one of the judges of the courts within twelve days after having been served with this writ, inclu- sive of the day of such service, to appear thereto, and do (c) within such time cause an appearance to be entered for him in the court out of which tins writ issues, the plaintiff will be at liberty at any time after the expiration of such twelve days to sign final judgment for any sum not exceeding the sum above claimed, ami the sum of £ for costs, and issue execution for the same. Leave to appear may be obtained on an application at the judge's cham- bers, Serjeant's Inn, London, supported by affidavit showing that there is a defence to the action on the merits, or that it is reasonable that the defendant should he allowed to appear in the action. Indorsement to be made on the Writ after Service thereof. This writ was served by X. Y. on F. M. (the defendant the defend- ant's) (c) on Monday, the day of 18—. By X. Y. I. IX ORDINARY CASES — ON INLAND (d) BILLS. 1. Drawer, being Payee, v. Acceptor, (e) Commencement, ante, 5.] For that the plaintiff, (/) on [#c], (g) by his bill of exchange, (h) now overdue, ({) directed to the defendant, (k) required the (c) Sic in Act. (d) The 19 & 20 Vict. c. 97, s. 7, provides that a bill or promissory note made in any part of Great Britain and Ireland, the Isle of Man, Guernsey, Jersey, Alderney, and Sark, and adjacent islands, part of the dominions Of her majesty, shall be deemed to be an inland bill, but does not alter or affect the stamp duty, if any, which, but for that act, would be payable in respect thereof. (e) It will be observed that in this form If necessary, the judge would amend the date stated. Bentzing v. Scott, 4 C. & P. 24. As to the effect of the words " due the day of ," written upon a bill, they may ex- plain the date, but do not qualify the accept- ance when written by the acceptor. Fitch v. Jones, 24 L. J. Q. B. 293 ; Fanshaw v. Peet, 2 II. & N. 57; 26 L.J. Ex. 302. (/<) If the instrument be in so ambiguous a form that it cannot with confidence be con- sidered a bill or note, the judge, at the trial, no presentment to the acceptor (the defend- will amend the declaration by allowing it to ant) or demand of payment is stated. The be treated as a note if necessary. Axmfield reason is, that he is liable, although no pre- sentment or demand has been made. See Turner v. Haydon, 4 B. & C. I. So, also, no proof of presentment is requisite where a person, not a party to the bill, guaranties the payment by the acceptor. Hitchcock v. Humfrev, 5 M. & G. 557 ; Walton v. Mas- catl, 13 M. & W. 452 ; Bailey v. Porter, 14 M. & W. 44. (/) May state that plaintiff drew, though he drew by agent. Heys v. Heseltine, 2 Camp. 604. Where defendant drew a bill In the name of A. & Co. held, that to make him liable on the bill, proof of want of au- thority from A. & Co. was requisite. Wil- son v. Barthrupp, 2 M. & W. 863; and see Thomas v. ilewes, 2 Cr. & M. 530, note. ('/) This form dees not allege that the bill bears date on the day named; if, therefore, the bill, when produced at the trial, do not bear date on the daynamed in the declaration, there will be no variance under the above tllegation. Smith v. Lord, 2 D. & L. 759. v. Allport, 27 L. J. Ex. 42 ; Moilliet v. Pow- ell, 6 C. & P. 233 ; Worlev v. Harrison, 3 Ad. & E. 669; Hay r. Fisher, 2 M. & W. 779. Distinction, &c. Shelton v. James, 1 Car. & K. 136 ; S. C. 5 Q. B. 199. In some cases the instrument may be declared upon either as a bill or note. Forbes v. Marshall, 11 Ex. 166; Beeman v. Duck, 11 M. & W. 251. As to when instrument a bill or note, see Conic v. Sliding, 6 El. & BI. 333 ; Lloyd v. < diver 18 Q. B.471. (/) It is not, it seems, necessary, to avei that the bill became due before "the com- mencement of the suit. Owen v. Waters. 2 M. & W. 91 ; Padwick v. Turner, 11 (,>. 15. 124; Shepherd y. Shepherd, 1 C. B. 847. (/.•) If the bill is not addressed to the defend- ant, he would not be liable as acceptor, even though he had actually accepted the bill; Gray v. Milner, 8 Taunt. 739 ; Davis v Clarke, 6 Q. B. 16; Polhill v. Walter, 3 B. & Ad. 114; but if addressed to him with others, and he individually accept it, he is 74 DECLARATIONS ON CONTRACTS. BILLS. defendant to pay to the plaintiff [or " to the order of the plaintiff" (/) one hundred pounds, (/») two months [or "days," or "weeks"] (n) after date [or "after sight"] ; ami the defendant accepted the said hill, (o) hut did not pay the same. [ // it be thought advisable, add a count on the consideration, (p) mid on an account stated, ante, 35, Form 2, and conclude :~] And the plaintiff claims £ . 2. Drawer, not being Payee, and having taken up the Bill, against Acceptor. Commencement, ante, 5.] For that the plaintiff, on [eye], by his bill of exchange, now overdue, directed to the defendant, required the defendant to pay to one E. F. (q) or to order £ , two months after date [or " after sight"] ; and the defendant accepted the said bill, but did not pay the same (r), ersonally liable; Owen v. Van Uster, 10 C. 318 ; and when a bill is addressed to the acceptor, and he accept it, he is personally liable, though he add accepted "tor the com- pany;" Mare v. Charles, 5 El. & B1.978; where the secretary of a limit' d company- accepts a bill on behalf of the company, not describing the company as " limited," he is personally liable for the amount of the bill. See Penrose v. Martyr, Eh, Bl. & El. 499, and form of declaration there. (/) It need not be alleged that the plain- tiff made no order. Frederick v. Cotton, 2 Show. 8; Fisher v. Pomfret, Carth. 403; Smith v. M'Clure, 5 East, 476. Bill " pay to my order," allegation " pay to A. or order," no variance. Bluett v. Middleton, 1 D. & L. 376 ; Beaman v. Duck, 11 M. & W. 251. (m) It is not necessary to add "for value received," although these words are in the bill ; and even if a particular consideration, as " value received in lead," &c. be stated in the bill and declaration, it is not neces- sary to prove it otherwise than bv putting in the bill. Fox v. Frith, 1 Car. & M. 502. (n) Some certain period for payment must be specified in a bill, or the bill is had. Alexander v. Thomas, 20 L. J. Q. B. 207. (o) This is correct, although the bill be accepted payable at a particular place, if the words "and not otherwise or elsewhere " be not also added. Blake v. Beaumont, l Dowl. N. S. 698. The above form suffices, although the acceptance preceded the draw- ing. Molloy /■. Delves, 7 Him:-. 428. As to liability of acceptor who accepts a blank bill, Armfield v. Allporr, 27 L. J. Ex. 42. As to pleading specially that the acceptance was qualified, see Lyon v. Wall, 2 M. & Sc. 736. It is not necessary to aver presentment to the acceptor. Turner ,-. Hay don, 4 B. & C. 1. By 19 & 20 Vict. c. 97, s. 6, the accept- ance of inland or foreign bills must be in writing on the bill, or, if in sets, on one of them, signed by the acceptor or some person duly authorized by him. (/)) If the consideration of a bill be stated in the particulars (as to which see ante, 35, uote (I)), plaintiff may prove it, to avoid a verdict being entered against him on the common counts; Ryder v. Ellis, 8 C. & V. 357 ; but in general a plaintiff can only re- cover on one count if he have only one cause of action. Ante, 5, note (a). The bill itself would be evidence in the case in the text — [but not by indorsee against acceptor ; Eales v. Dicker, 1 Mood. & Mai. .'321 ; nor if the payee and drawer be not the same partv. Early v. Bowman, 1 B. & Ad. 889] — bl money bad and received, Thompson v. Mor- gan, 3 Camp. 161, and also under the ac- count stated; Rhodes v. Gent, 5 B. & Aid. 245 ; and therefore those counts should at all events be inserted. An indorsement is also evidence under an account stated ; Way- man v. Bond, 1 Camp. 175, provided it be between immediate parties; Bentley v] Northhouse, 1 Mood. & Malk. 66; and" like- wise of money lent. Wells v. Girling, Gow, 22, note. As to when a promise to pay be- tween parties not immediate, is evidence under the account stated, see Oliver v. Do- vat t, 2 M. & R. 230; Breckon v. Smith, 1 Ad. & E. 488 ; Burgh v. Legge, 5 M. & \V. 418. A count on the consideration should be added, 1. When the bill has been given to secure an actual debt for goods sold, &c. 2. When the bill itself is evidence of such contract between the plaintiff and de- fendant. ( hy his bill of exchange, now overdue, directed to the defendant, required the defendant to pay to the plaintiff £ , two months afterdate [or "after Bight"], and deliv- ered ilif said bill to the plaintiff; and the defendant accepted the same, but did not pay the same. [Conclude as directed in Form I, ante, 74."] 4. Indorsee against Acceptor. Commencement, ante, 5.] For that E. F., (t) on [#c], by his bill of ex- change, now overdue, directed to the defendant, required the defendant to pay to the said E. F. [or " G. II."] or order (u) £ , two months after date [or "after sight"]; and the defendant accepted the said bill, and the said E. F. Tor " G. H." (x)~] indorsed the same to L. M., (x) who indorsed the same to N. 0., (y) who indorsed (z) the same to the plaintiff; (a) but the defendant did not pay the same. [ Conclude as directed, with a count on the original consid- eration for the bill, Form 1, ante, 74.] flefendant, he being acceptor, is not neces- sary ; bui ii is necessary to show the defend- ant did not pay the bill, and that it was re- turned to the plaintiff, as he has no title except by virtue of those facts. (s) As to designating the drawer's name by initials or contractions, see ante, 74, note (rsr) See Mellish v. Rawdon, 9 Bing. 423 ; B. 751. Where the bill is directed to the Shute v. Robins, 1 M. & M. 133. payee at his private residence, and is ac- (7) See 1 & 2 Geo. 4, c. 78. fepted by him payable at his banker's, pre- (r) Amendment allowed by striking out sentment at the banker's is necessary to these words. Higgins v. Nicholls, 7 Dowl. 78 DECLARATIONS ON CONTRACTS. BILLS. same to L. M., who indorsed the same to the plaintiff; and the said bill was duly presented for payment at (s) the said Messrs. G. and H., bankers, Lon- don, aforesaid, and was dishonored ; of all which the defendant had due notice, but did not pay the same. [Add count on the consideration, as ante, Form 1, p. 74.] 12. Indorsee against Drawer in such Case. Commencement, ante, 5.] For that the defendant, on [#c], by his bill of exchange, now overdue, directed to E. F., required E. F. to pay to the defend- ant or order £ , two months after date; and the said E. F. accepted the said bill payable [at Messrs. G. and H., bankers, London, and not otherwise or elsewhere^ ; and the defendant indorsed the said bill to [one I. K., who in- dorsed the same to] the plaintiff; and the said bill was duly presented for payment at the said Messrs. G. and H., bankers, London, aforesaid, and was dishonored ; of all which the defendant had due notice, but did not pay the same. [Add count on the consideration, as ante, Form 1, p. 74.] 18. Indorsee against Drawer on Bill drawn and accepted, payable at a particular place. (t.~) Commencement, ante, 5.] For that the defendant, on [$■^ . Terry v. Parker, 6 Ad. & E. 502. It seems |*i-. nil the last case that the excuse stated would also lie a valid one for want of presentment. The plaintiff may succeed upon the common form alleging due presentment And notice of dishonor, without strict proof of those facts, if he can show a subsequent promise by defendant [even though condi- tional (Campbell v. Webster, 2 C. B. 258)] to pay the bill. Hicks v. Duke of Beaufort, 4 N. C. 229; Croxon v. Worthen, 5 M. & W. 5; Goodall v. Dolley, 1 T. "R. 742. | In Harrison v. Bailey, 99 Mass. 620, it was held that in an action by an indorsee against the indorser on a promissory note, evidence of a waiver of demand and notice is sufficient to support an allegation in the declaration of demand and notice. Other cases support the same, doctrine. Taunton Bank r. Richardson, 5 Pick. 436, 444; Jones r. Kales, 4 Mass. 245 ; Andrews v. Bovd, 3 Met. 434 ; Citv Bank v. Cutter, 3 Pick. 414; North Bank v. Abbot, 13 Pick. 4G5 ; Kent V. Warner, 12 Allen, 561 ; Norton v. Lewis, 2 Conn. 478 ; Williams v. Matthews, 3 Cowen, 252 ; 2 Greenl. Ev. § 197 ; Stewart v. Eden, 2 Caines, 121 ; Shirley v. Fellows, 9 Porter, 300; Patton v. McFarlane, 3 Penu. St. 419, 42.").] But if there be evidence that in point of fact notice of dishonor was not given to defendant, then the subsequent promise will not avail the plaintiff, as the promise is only prima facie evidence that such notice had been given, and is not a dispensation with notice. Lundie v. Eobertson, 7 East, 231 ; Allen v. Edmundson, 2 Ex.719; Carter v. Flower, 16 M. & W. 749 ; [Rabev v. Gilbert, 30 L. J. Ex. 70 ; 6 H. & N. 536. 'See Dorsey r. Watson, 14 Missou. 59; Loose v. Loose, 36 Penn. St. 538, 545 ; Woods v. Dean, 3 B. & S. 101 ; Harrison v. Bailey, 99 Mass. 620 ; Lary v. Young, 13 Ark. 401 ; Landrum i: Trowbridge, 2 Met. (Ky.) 281.] Present- ment of foreign bill also excused. Green- way v. Hindley, 4 Camp. 52. But a count in the common form will not suffice where the notice is excused, and there is no prom- ise to pay. Buro-h v. Legge, 5 M. & W. 418 ; i Irr v. Matrinnis, 7 East, 359 ; Legge v. Thorpe, 13 Last, 171 ; Cory v. Scott, 3 B. & Aid. 619; Sharp v. Bailey, 9 B. & C. 44. That there were no effects in the drawee's hands, is no excuse as against an indorser for want of presentment and notice of dishonor. Saul v. Jones, 1 El. & Bl. 59. [See 3 Kent, 109, 110; French v. Bank of Columbia, 4 Cranch, 153, 154 ; Dickins v. Beal, 10 Peters, 572 ; Case v. Morris, 31 Penn. St. 100 ; Wol- enweber v. Ketterlinus, 17 Penn. St. 389; Mehlberg v. Fisher, 24 Wise 607; Greai v. McDonald, 9 Gill, 350; Blankenship v Rogers, lo [nd. 333; Durrum v. Hendricks, 4 Texas, 495 ; Coyle v. Smith, 1 E. 1). Smith, 400; Oliver v. Bank of Tennessee, 11 Humph. 74; Allen v. King, 4 McLean, 128; Torrey v. Foss, 40 Maine, 74; Bar- barous v. Waters, 3 Met. (Ky.) 304; Mal- tass v. Siddle, 6 C. B. N. S.*494, 500, 501, and note. With regard to a subsequent promise to pay, Chancellor Kent says: "If due notice of non-acceptance or non-payment be not given, or a demand on the maker of a promissory note be not made, yet a subse- quent promise to pay, by the party entitled to notice, be he either drawer or indorser, will amount to a waiver of the want of de- mand or notice, provided the promise was made clearly and unequivocally, and even under a mistake of law, if it was with full knowledge of the fact of a want of due diligence on the part of the holder," 3 Kent, 113; Leonard v. Gary, 10 Wend. 504; Thornton v. Wynn, 12 Wheat. 183; Rey- nolds v. Douglass, 12 Peters, 497; Robbins v. Pinckard, 5 Sm. & M. 51 ; Brooklyn Bank v. Waring, 2 Sandf. Ch. 1 ; Story Prom. Notes, § 362 ; Hopkins v. Liswell, 12 Mass. 52 ; Creamer v. Perry, 17 Pick. 332 ; McPhetres V. Halley, 32 Maine, 72 ; Chitty Bills (12th Am. ed.) 501, note (4); Siger- son v. Mathews, 20 How. (U. S.) 496; Ed- wards v. Tandy, 36 N. H. 540 ; Byram v. Hunter, 36 Maine, 217; Meyer v. Hibsher, 47 N. Y. 265 ; Harvey v. Troupe, 23 Miss. 538; Golladay v. Bank of the Union, 2 Head, 57; Campbell v. Varney, 12 Iowa, 43; Blodgett v. Durgin, 32 Yt. 361 ; Mor- gan v. Peet, 32 111. 281. It is indispensable that this waiver should be made with a full knowledge of the want of due notice of the dishonor of the bill or note. Jones v. Sav- age, 6 Wend. 658 ; Storv Prom. Notes, § 362 ; Miller v. Hackley, 5 John. 385 ; May v. Coffin, 4 Mass. 341 ; Warder v. Tucker, 7 Mass. 449 ; Garland v. Salem Bank, 9 Mass. 408 ; Martin v. Ingersoll, 8 Pick. 1 ; Towns- end v. Wells, 32 'Maine, 416; Spurlack v. Union Bank, 4 Humph. 336 ; Richter v. Selin, 8 S. & R. 426; Sussex Bank v. Bald- win, 2 Harr. 487 ; Crutchers v. Wolf, 2 Monroe, 88; Kennon v. M'Rea, 7 Porter, 175; Edwards v. Tandy, 36 N. H. 540; Otis v. Hussey, 3 N. H. 343; Rogers v Hackett, 21 N. H. 100 ; Farmington v. Brown, 7 N. H. 271 ; Woodman v. East- man, 10 N. H. 359; Trimble v. Thorn, 16 John. 152 ; Martin v. Winslow, 2 Mason, 241 . The weight of authority, Chancellor Kent says, is that this knowledge of the want of -ACTS. BILLS. •,. : and the defendant indorsed and plaintiff; and the said bill was duly presented time when the said bill was drawn, and from when the said bill became due and pay- ,nt had no effects in the hands of E. F., , . asouable ground for expecting that the said such effects, or that the said bill would be paid :. nor hath the defendanl sustained any dam- had notice of the said presentment and ill ; and the defendant hath not paid the same. [Add mte, Form 1, p. 74.] Default Payment where the Drawee could not befound. (a) .5.] For that tl udant, on [#c], by his bill of ected to E. F., by the description and addition of Pimlico,] required the said E. F. to pay to the de- , months after date ; and the defendant indorsed the ind when the said bill became due and payable, due i and inquiry wire made for and after the said E. F. in ico, and elsewhere, in order that the said bill might be pre- d.-tr F the holder, may • imis with- rmative p K : '. 113; Lnndie v. 231 ; i. Hooker, 1,12 .Mass. '>•! ; Williams . Pinckard, 5 Sm. 6 Pi -uii roe of •• . the jur r or indorser knew irly chat .■Tl : Le 1 rowen, 1 7 12 Maine, lial this km >\. n re promise I maturity from loss ■ itj of the ■ '.'!: lit • I il. it is • require proof Dt, 1 13 : Mead I '.:mk V. Farnham, . ". ( !onn. .1 - Porter, 155; 17 \t.l. 154; Lewis v. Miller, 3 r V. 1 l;ir\ !■ . , I 7 Wend. 489 ; Burrows v. Hanegan, 1 McLean, 309; Kyle v. Green, 14 Ohio, 495; V. man v. Eastman, 10 X. II. .'359; Pasi Decatur Bank, 12 Ala. S0i> ; Marston v. Bank of Mobile, 10 Ala. 284; Holman v. Whiting, 19 Ala. 708 ; Creamer v. Perry, 17 Pick. 332, 334, 335; Develing n. Ferris, 18 Ohio. 170; Marshall v. Mitchell, 34 .Maine, 227 : Lewis v. Kramer, 3 Md. 265. Nor is taking any assignment of property after irity of the note. Walters v. Munroe, 17 Md. 154; Gawtry v. Doane, 48 Barb. 148; Otsego County Bank v. Warren, 18 Barb. 290. But where an indorser of a note arity of the maker, before it is due, tn indemnify him against his liability as in- dorser, and alter it is due receives back from the maker the property for which the note was given, and thereupon promises to deliver up the note to him without further compen- sation, he thereby waives demand on the maker ami notice of non-payment by him, although the property so received back is not worth the sum due on the note. The taking back of the property in such ease, after the due, and the promise to deliver up the note, are also evidence from which a jury may infer that the indorser had received due notice of non-payment by the er. Andrews v. Boyd, 3 Met. 434.] (z) The plaintiff need not prove this at the trial. Fitzgerald v. Williams, 6 Bing. \. ( '. 68 ; and see Carter v. Flower, 1G M. & W. 743. («) Chit. jr. B. 49; Byles on B. ; Rose. Ev. Ignorance of place of residence. Chap- cott v. Curlewis, 2 M. & li. 484. DECLARATIONS ON CONTRACTS. BILLS. 81 sented for payment, but the said E. F. could not on search and inquiry, or Bince, be found, nor could his place of abode be discovered, oor hath he paid the said bill; of all which the defendant had due notice, but the defendant did not pay the same. [Add a count on the consideration, as ante, Form 1, p. 78.] 17. Indorsee against Drawer, where Drawee was dead. (1>) Commence in<- itt, ante, 5.] For that the defendant, on [#&]» by his l>ill of exchange, now overdue, directed to E. F. [by the description of K. F., Esq., Mill Street, Poplar], required E. F. to pay to the defendant or order £100, two months after date, and the defendant indorsed the same [to one G. H., who indorsed the same] to the plaintiff.* And after the making of the said bill, and before the same became due, E. F. died, and when the same became due [" and at the time this action was commenced," if the fact be so,] no per- son or persons had proved the last will or testament of E. F. [if any] or become executor or executors thereof, nor had any letters of administration of the estate and effects which were of the said E. F. at the time of his death been granted to any person or persons, nor had any person or persons admin- istered thereto; and the said bill was duly presented and dishonored; of all which the said defendant had due notice, but did not pay the said bill. [Add a count on the consideration, and conclude as directed, ante, 74, Form 1.] 18. Indorsee against Drawer, where the Defendant dispensed with Presentment, (c) As in the last form to the asterisk, except that the address of the drawee need not be stated.] And when the said bill became due, the plaintiff was ready and willing duly to present the said bill for payment, and would have duly presented the same ; but the defendant requested the plaintiff not to present the said bill for payment, and wholly dispensed with such presentment, and discharged the plaintiff from presenting the said bill for payment ; and the said E. F. hath not paid the same ; of all which the defendant had due notice, but hath not paid the same. [Add a count on the consideration, as ante, Form 1, p. 74.] ILL ON BILLS IN THE CASE OF EXECUTORS, ASSIGNEES, HUSBAND AND WIFE, &c. 19. By Executor of Drawer against Acceptor, (c?) with the Common Counts laying a Debt to the Testator; and also on an Account stated ivith the Plaintiff as Executor. Commencement as ante, 13, Form 23.] For that E. F. in his lifetime, on [fyc], by his bill of exchange, now overdue, directed to the defendant, re- (b) See Chit. jr. B. 49; Byles on B. 116; was given. Burgh v. Legge, 5 M. & YV and see ante, 79, note [y). 420 ; Carter v. Flower, 16 M. & W. 749 75-' (<) See Chit. jr. B. 49, 60; 1 Wentw. note; Caunt v. Thompson, 7 C. B. 400 -'ante' 322 It is necessary to state this in the 79, note (»/). declaration, and it cannot be given in evi- (d) Observe the notes to the forms, post, dence under an allegation that actual pre- "Executors." The above form may readilv sentment was made, or notice of dishonor be adapted, with the assistance of the form VOL. II. NTBACTS. BILLS. .;..,- £100, two months [or "days," or r date, and the defendant accepted (e) tine. he defendant for money payable by the defend- ae , for goods sold and delivered by the said • any other cause of action as ante 34, throughout the name of the deceased "E.F." for money payable by the defendant to the plain- 1. for money found to be due from the defendant to said, upon accounts stated between the plain- i :i nd the defendant. And the plaintiff as executor — • inistra Drawt r against Acceptor. ;. ! ms 1 to 4.] For that the said E. F. in his d as in the last form, using the word "administrator" ''"J- ■_\./;, Or i i r, fc. against the Executor or Administrator of the Acceptor. , 13, Forms 6, 25, describing defendant's repre- I '..!■ that the plaintiff heretofore, in the lifetime of the : 1. I.. .], by his bill of exchange, now overdue, directed to the i i . lir.-d ill, said E. F. to pay to him the said plaintiff £100, two . and the Baid E. F. accepted the said bill, but did not pay plaintiff also sues the defendant as executor as aforesaid for money i E. F. in his lifetime, to the plaintiff, for goods sold and lid plaintiff to the said E. F.. and for \_proceed as in the ! ntors," attending to the directions there given]. And also by the defendant as executor as aforesaid to the plaintiff ted between the plaintiff and the defendant as executor as And the plaintiff claims £ . / 'for of Drawer against Acceptor. • ante, 7">, Form I. except that instead of the alleged by th er to the plaintiff", the following should be inserted :] thai "ii the day of , a. d. [the date of ■ / is not material], the said E. F. [the drawer] made and i- stament in writing, and thereby appointed G. H. executor nd th , . ] . afterwards, and after the drawing of the said bill, . \. i>. [exact day not material], died, and the aid will, and took upon himself the burden of thereof, and became executor as aforesaid, and as such executor (c) Must prove on this an acceptance in or of the testator's lifetime. Sarell v. Wine, 3 Last.. tnenl and 409. i ■ . DECLARATIONS ON CONTRACTS. BILLS. 83 indorsed the said l>ill to the plaintiff. \_A profert of the trill is not necessary See Stone v. Rawlinson, Willes, 559. The above indorsement, if traversed nnii/ be proved by the production of the probate, and proof of the executor $ handwriting."] -'■\. By Indorsee of Administrator of Drawer against Acceptor. See last form and observations thereon. The allegation of the indorsement to the plaintiff will be thus:'] "And the plaintiff saith, thai afterwards, on the day of , a. d. [exact day immaterial], the said E. F. \thc drawer] died intestate; and administration of all and singular the goods, chat- tels, and credits, which were of the said E. F., deceased, at the time of his death, was thereupon duly granted in due form of law by [ William by Divine I'mritlriire Archbishop of Canterbury, Primate of all England and Metropol- itan] to one G. H. ; and the said G. II., as such administrator, indorsed the said bill to the plaintiff." 24. By the Assignees of a Bankrupt Draiuer against the Acceptor ; with the common Count, for the Consideration payable to the Bank- rupt, and an Account stated with the Plaintiffs. Commencement as ante, 8, Form 7.] For that the said E. F., before he became a bankrupt, on [#c], by his bill of exchange, now overdue, directed to the defendant, required the defendant to pay to him the said E. F. or order £100 5s. Qd., two months after date, and the defendant accepted the said bill, but did not pay the same. And the plaintiffs, as assignees as aforesaid, also sue the defendant for money payable by the defendant to the said E. F. before his bankruptcy, for goods sold and delivered by the said E. F. to the defendant, and for [insert any other cause of action as ante, 39, Form 2, taking care to write throughout the name of the bankrupt, E. F.,for " the plaintiff"]. *And also for money payable by the defendant to the plaintiffs, as assignees as aforesaid, for money found to be due from the defendant to the plaintiffs, as assignees as aforesaid, upon accounts stated between the defendant and the plaintiffs, as assignees as aforesaid. And the plaintiffs, as assignees as afore- said, claim £ . 25. Another Count, laying a Promise on the Bill to the Plaintiffs, and an Account stated with them. And also for that the defendant, having so accepted the said bill drawn by the said E. F. before he became bankrupt, in manner and form as in the \_first] count mentioned, and the said bill being unpaid, the defendant in con- sideration thereof, after the bankruptcy of the said E. F., promised (/) the plaintiffs, as assignees as aforesaid, to pay them the said money on request. And the plaintiffs also sue the defendant for money payable \_as in the last form from the asterisk, unless it be necessary to insert a count on causes of action arising after the bankruptcy, in which case the Form 3, ante, 53, may be added as a further count, commencing it, "And for money payable," 8?c] (f) Although non-assumpsit is not in bill, it would seem that in this form the de- general a good plea to a declaration on a fendant might deny the promise alleged. CONTRACTS. BILLS. ; l> i >er, an Insolvent Debtor, against tor. j I ;;1 7.] For that the said E. F. heretofore . d in the plaintiflfe, as assignees as afore- . ,,,, u overdue, directed to the defendant, biro the sai.l E. F. £100, two months after sting of the estate and effects of the - aforesaid, accepted the said bill, but 71 the last form, with the necessary alter- v instead of bankruptcy, attending to the re.] Drawer against the Acceptor, with the common J)ebt i Plaintiff and Deceased jointly, and an rith the Plaintiff as Survivor. (g) . 15, Form 32.] For that the plaintiff, and one E. F, me of the said E. F.. on [#c], by their bill of ex- ted to the defendant, required the defendant to pay id E. F. £ , [two] months after date; and the id bill, but did not pay the same. [Add such part ipplies, laying the debt "to the plaintiff and E. F., d." Jt may also frequently he advisable to add a count for debts to the plaintiff. See post, " Partners."] trviving parti/ to a bill is not given, it being unnecessary - /■ specially as such. He may be sued as if he alone cepted the bill, 8$c. He cannot plead the non-joinder in not aver that the other party is alive ; and no objection can at the trial on the ground of a variance. Mountstephen v. 1 B. & Aid. 224 B // I and Wifi . on a Bill drawn by and payable to the Wife befon Marriage, against the Acceptor. a» "i■. Stephen, 6 Q. B. 937.] 8< e Jell v. Douglass, 4 B. & Aid. 374. DECLARATIONS ON CONTRACTS. BILLS. 85 Where a bill or note is payable on the face of it to a married woman, the husband may sue alone or the wife may be joined with him. Philliskirk v. Pluckwell, 2 M. & S. 293; Bidgood v. Way, 2 Bl. 1236. Husband's indorse- ment of such bill or note, passes legal estate. Baker r. Bank of Australasia 1 C. B. N. S. 015 ; Dawson v. Prince, 27 L. J. Ch. 169 ; 2 De G. & J. 41. 29. Against Husband and Wife, on Bill accepted by her before Mar- riage. Commencement against defendant ''and E. his wife" [fyc. as ante, 14]. For that (i. II.. whilst the said 10. was unmarried, on [$' c -]' by his bill of exchange, now overdue, directed to the said E. whilst she was unmarried, required the said E. to pay to the said G. H. or order £ , two months after date; and the said E., whilst she was unmarried, accepted the said bill, and the said G. II. indorsed the same to one I. K., who indorsed the same to the plaintiff, but the said E. did not pay the said bill, and the same is still unpaid. [Add a count on the original debt, "for money payable by the said E. whilst she was unmarried to the plaintiff," for, fyc. See post, " Husband and Wife." A conn! laying a promise by both the defendants since their marriage cannot be inserted. See Morris v. Norfolk, 1 Taunt. 212 ; Pittam v. Foster, 1 B. & C. 248.] IV. ON FOREIGN BILLS. 30. Drawer (or Indorser) against Acceptor. Commencement, ante, 5.] For that the plaintiff [or " one E. F."], on [Sfc], in parts beyond the seas, (h) to wit, at Paris, by his bill of exchange, now over- due, directed to the defendant, required the defendant to pay [" that his sec- ond of exchange (according to the bill), first and third of the same tenor and date, not paid" (?')] to the plaintiff [or "one G. II."] or order £100 5s. 6c?. sterling [or " 3,000 francs "], two months (k) after date [or " at two usances, (/) that is to say, at two calendar months (/) after date," according to the bill,] [if the action be by an indorsee, state the draiver's, E. F.'s, indorsement (m) to the plaintiff in the common form], and the defendant accepted (•«) the said bill, but did not pay the same when due. [ When the hill is to be paid in foreign money, add the following averment : (o)] "And the plaintiff says that the sum (h) As to what are inland bills and what (/) As to this condition, see Holdsworth foreign, see 19 & 20 Vict. c. 97, s. 7, ante, r. Hunter, 10 B. & C. 449. 77, note (a). As to stamps on foreign bills, (/.) If payable ajler sight, see ante, 77, see 2.'! Vict. c. 15. This is a necessary aver- Form No. 10. ment though a foreign town be mentioned, (I) See Buckley v. Campbell, 1 Salk. 131 ; otherwise the 1 >i 1 1 will be taken to be an in- Smart v. Dean, .3 Keb. 645. land bill. Sprowle v. Legge, 1 B. & C. 16 ; (m) As to a transfer abroad of a foreign Kearney v. King, 2 B. & Aid. 301; and bill, Trimbly ». Vignier, 1 Bing. X. C. 151; the defendant might treat it as such in fLebel v. Tucker, ."57 L. J. Q. B. 46; S. C. pleading, and deny thai he indorsed, &c. L. R. 3 Q. B. 77 ;] ornote, Bent ley v. North- " the said inland bill ;" Armani vt Castrique, house, l Mood. & .M. 66. 2 1). & L. 440; S. ('. 13 M. & W. 443; and (n) An acceptance of a foreign bill must may show even as against a bond Jia\ holder be in writing on the bill, or, if in sets, on that the bill, though purporting to be drawn one of the parts of such bill, and signed by abroad, was drawn in England, and so bad the acceptor or some person duly authorized for want of a stamp Steadman v. Duhamel, by him. 19 & 20 Vict. c. 97, s. 6. 1 C. B. 888. (o) See Simmonds v. Parminter, 1 Wils LABATIONS ON CONTBACTS. BILLS. lid bill mentioned, at the time of malting the said bill, came due, was and is of the value of [£ ■] of lawful mt, on the consideration and on an account led, ante, 33, Form No. 1.] 1 1 er oj Foreign Bill — J >< fan It Acceptance. ,] For that the defendant, on [$«.], in parts beyond . 1,\ his bill of exchange, nov< overdue, directed to II. ! 1 . to pay O) to the said defendant [or "one £100 5s. I d. sterling, (y) two months after date, (r) And I th< said bill [to one G. 11.. who then indorsed the 1. K.. who then indorsed the same] to the plaintiff. And the said bill ated (s) to the said E. F. for acceptance, and the said E. F. «pt the same, (t) \ If the bill be drawn in sets, add this : did nor would he accept the said first or third of exchange 4n r bill mentioned," («)] whereupon the said bill was then duly pro- Qon-acceptance thereof, of all which the defendant had due notice; and the plaintiff, by reason of the premises, incurred expenses in and be noting, protesting, and reexchange of the said bill, and for com- »es incidental thereto ; (y) and the defendant hath not paid the said bill or exj against Drawer of Foreign Bill — Default Payment. 1 ■ nt. m,i, . 5. ] For that the defendant, on [4*c.], in parts beyond ill'- wit, at [Paris], by his bill of exchange, now overdue, directed to I.. I'., requiri d the said E. V. to pay to the said defendant or order £100 terling, (z) two months after date, (z) And the defendant indorsed aid bill to [one G. II.. who indorsed the same to] the plaintiff. And the • • • did not pay the said bill, although the same was presented to him whi n due, whereupon the said bill was duly protested for non-payment thereof, which the defendant had due notice. against Acceptor of Foreign Bill, supra Protest, (a) ■ '. ante, 5.] For that one E. F., on [#c], in parts beyond the Aid. 301 ; diately on non-acceptance, protest, and no- C. 16. tice. Whitehead v. Walker, 9 M. & W. 506. mandthenoti (u) Starke ». Cheeseman, Carth. 509; i in money, observe "We^ersluiie r. Ivicnc, Stra. 214. (.<■) As to the omission of this averment, ■ e the see Salomons v. Stavely,3 Doug. 298; Chit. jr. B. 423. See Witherley v. Sarsfield, 1 . payable after Bight, Sho. 127 j ('hit. jr. 15. 17.3"; lb. 61. A sub- eptance within a Bequent promise by defendant to pay the 1 a mixed question bill, even though conditional, is evidence in 1 of presentment support of this averment. Campbell v. " of the drawer con- Webster, 2 C. B. 258 ; and see /) See Kendrick v. Lomax, 2 Cr. & J. 407. Mulliek ,-. Badallis- If payable in foreign money, or at usances or after sight, or drawn insets, oh- - that the hill is overdue 1 orm No. 30T ante, 85. (c);inthec (o) See form Mitchell v. Baring, 4 C. & uea imme- P. 35 ; S. C. 10 B. & C. 4. DECLARATIONS ON CONTRACTS. BONDS. 87 seas, to wit, at [Paris], by his 1*111 of exchange, now overdue, directed to one G. II., required the said ( i. EL to pay (/>) to the Baid E. F. or order £ , (e) two months after date. (<■) Ami the said ED. F. indorsed the Bame to [L. .M., who indorsed the sum' to] the plaintiff, and the said bill was presented to the Baid G. H. for acceptance, and he refused to ai pi the same, whereupon tli<; said bill was protested for non-acceptance thereof, of all which the defendant had notice. And thereupon the defendant, in order to prevent, the said bill from being sent back and returned to the said E. F. [//"- drawer], did under the said protest accept the said bill, and the said ('<. II. [the original drawee] did not pay the said bill, although the same was presented (d) to him for pay- ment when due. whereupon the said bill was then duly protested (e) for non- payment thereof, of all which the defendant had due notice, but did not pay the said bill. [Add a count upon an account stated, and conclude as ante, 34, Form 1.] FOR BOARD AND LODGING. (/) Commencement as ante, 33, Form 1.] For the use and occupation of cer- tain rooms, apartments, and furniture of the plaintiff, by the defendant [" and other persons," if the fact be so,] at his request, and for meat, drink, attend- ance, and other necessaries and goods by the plaintiff found and provided for the defendant ["and other persons"] at the defendant's request, and for [state money paid or other debt, and conclude with account stated, fyc. as ante, 33]. [Form prescribed under the Massachusetts Practice Act. And the plaintiff says the defendant owes him dollars for board and lodging furnished by the plaintiff for the defendant. See Raymond v. Eldridge, 111 Mass. 390, 391.] BONDS. Obs. — Bonds may, for the purpose of considering the rules of pleading thereon, be divided into — 1. Common Money Bonds ; •_'. Bonds having special conditions for the performance of any covenant or agreement in another instrument, Sfc. within the statute 8 fr'd W. 3, c. 11, .«. 8. 1. The plaintiff has no occasion to assign any breach of the condition of a com- mon money bond in his declaration or oilier pleading (unless the defendant plead specially that he has performed the condition), and need never suggest such breach on the roll. These bonds are regulated by the statute 4 &5 Ann. c. L6, s. 12. At common law the penalty was the debt for which execution might be is- sued; but by the statute of Anne, s. 12, " where an action of deht is brought (b) Observe Form No. .30, p. 85. an entire contract for board and lodging. (c) If payable in foreign money, or at Attwaters v. Courtney, 1 C. & M. 51. It is usances, or after sight, or drawn in sets, vide n< ssary for the plaintiff to prove thai the Form No. 30, p. 85. d< fendant and be came first together on the ('/) Presentment for payment to the drawee terms thai the board and lodging was to be is necessary. Williams r. Germaine, 7 B. & paid for. and thai it was nol to be furnished C.468. gratuitously. Davies v. Davies, 9 C. & P. 87 (< ) The second protest is necessary. Hoare Where the defendant was only a lodger, see !•. Cazenove, 16 East, 391; VandenwaU v. the form post, tit. "Landlord" and Tenant." Tyrrell, l Mood. & M. 87. The plaintiff should declare for necessaries (/) This is the proper form where the as post, tit. " Necessaries," it' the defendant defendant was an inmati in the plaintiff's were not an inmate, but was casually supplied, house, and was hoarded and lodged under as in the case of an innkeeper's guest, &c. : IRATIONS ON CONTRACTS. BONDS. lition or defeasance to make void the same certain, if the obligor, his heirs, . action brought, paid to the rs, the principal and interest due by the h bond, though such payment was not made lition or defeasance, yel it shall and may never- : such action (see post, 'Payment'), and shall y had been paid at the day and or defeasance, and had been so pleaded." if at any time pending an action upon ialty, the defendant shall bring into court where the the principal, money, and interest due on such ; such costs as have been expended in any suit or suit> in I, the t dd money so brought in shall be deemed - isfaction and discharge of the said bond, and the crive judgment to discharge every such defendant of and lingly." Wheelhouse v. Ladbrooke, 3 II. & X. 291. This, authorize the payment of the money into court being . Watson, 9 M. & W. 333; London [Bishop of] v. B inson v. Wyatt, 1 I). & L. 66. Upon demurrer id, the indorsement of the court is upon the dec- m the breaches assigned. Kingsford o. Dutton, 1 Prac. Is havh conditions of the nature alluded to are regu- 3. 8. [By s. 8 of this statute it is r in all actions upon any bond or on any penal sum for non-per- covenants or agreements in any deed or writing contained, .sign as many breaches as he shall think fit, and the jury mly such damages and costs of suit as were before usually . but also damagesfor such of the said breaches as the plaintiff shall prove to hav.- been broken; and that the like judgment .-hall be entered on the bad been usually entered on such actions: and that, if • shall be given for the plaintiff on demurrer, or by confession, or nil '. he maj ' upon the roll as many breaches as he shall think fit, i which shall issue a writ to the sheriff to summon a jury before the jus- of assize (or now by the 3 & 4 W. 4, c. 42, s. 16, before iif) to inquire of the truth of those breaches, and to assess the dam- tbat the plaintiff shall have sustained thereby. The section then pro- ise the defendant shall pay into court the damages assessed stay of execution shall be entered; or if the plaintiff is a, the defendant shall be thereby discharged, but, not- _. in each case the judgment shall remain as a security against • be-, upon which the plaintiff may have a scire facias. Ac- . y the judgment is entered in the usual form for the whole penalty ith the addition, " that the plaintiff have execution against the : the ilania.;e- aforesaid to by the jury assessed, according I- P. ■ 3 not affect the proceedings under the 8 & 9 W. 3, • the assignmenl or suggestion of breaches, or as to judgment urity for damages in respect of further breaches." C. W. 3 applies (and breaches must therefore be assigned in tea on the roll) in cases where a bond (though on the :iitnon bond) i< executed contemporaneously with a sepa- which it i< declared by the parties that the bond shall be a se- tlien or thereafter to be due, &c. Hurst v. Jennings, ends also to annuity bonds; Walcot v. Goulding, 8 T. on bonds; Welch v. Ireland, 6 East, 613; Banbury /-.Guest, ad to bonds conditioned to pay a sum of money by instalments, led that the whole sum shall become due in "case of any one •'■ I mas, 5 B. & Ad. 40; Smith v. Bond, 10 Bing. 125; B. 678; Hodgkinson v. Wyatt, 1 1). & L. 668. W« 3 ' nd to common money bonds, which are pro- DECLARATIONS OX CONTRACTS. BONDS. 89 Ons. vided for by 4 & 5 Ann. c. 16, s. 18 ; Cardozo v. Hardy, 2 Moore, or to post orbit bonds for the paymenl of a gross sum a1 one time; Murray y. Earl of Stair, 2 B. & ('• 82, 89, 3 D. & R. 78, S. C. ; of a bail bond; Moodj Pheasant, 2 B. ,v P. i 16; or a replevin bond; 2 Saund. 187, note (2); Middle- ton p. Bryan, 8 M. & S. L55 ; or a petitioning creditor's bond; Smith v. Broomhead, 7 T. R. 800; Smithey u. Edmonson, 8 East, 22; or a bond to replace stock. Savill v. Jackson, 13 Price, 815. And although the statute applies i" bonds to pay money al different periods, where part has not ac- crued due (see Vansandau v. Burt, 1 B. & AM. 214; Tighe v. Crafter, 2 Taunt. 887), yel it does not apply to a bond conditioned for the payment of a principal sum on a named day, and interest at fixed periods before that day, pursuant to the stipulations in a replication, ii is advisable for the plain- nil for want of a rejoinder, and state the plead- Shaw, a Q. 11. 322. [Under the Massachu- !n a a bond, or other conditional obligation, contractor idition is to be deemed a part of the obligation, I must be set forth; breaches relied on must be assigned, lie right of the party relying thereon are to be formed, or his excuse for the non-performance • s. c. 129, § -'. pt. l". S . Eurther, as to the remedy M chusetts, Genl. - s i-. e. 133, §§ 9-13; Leonard v. SpeideL Fisk v. Gray, l" 11 Mass. 191 ; Leighton v. Brown, 98 Mass. i ;■•. 97 Mass. L5; Austin v. Moore, 7 Met. 116; Merrill v. 57; Battey v. Holbrook, 11 Cray. 212; Wright v. Quirk, Davis v. Harding, 3 Allen. 302. In New York, when an on any bond, for the breaches of any condition other than :n \. or for any penalty for the non-performance of any cov- nrritten agreement, the complaint must contain averments of the for which the action is brought. 2 R. S. 378, § 5; Reed v. Wend. 345; People v. Brush, 6 Wend. 454; People v. Russell. 4 i Bank v. Sherwood, 29 Barb. 383. This rule does not - for the payment of money by instalments. Spaulding v. Millard, Harmon v. Dedrick, 3 Barb. 192. Xor to bonds for the pay- 's annuity. Wood v. Wood, 3 Wend. 454; Nelson v. Bostwick, 5 I si vera] breaches are in the nature of distinct causes of action. B h . Barons, 13 Barb. 305. In an action on a penal bund the judgment, in! .. Western Bank v. Sherwood, 29 Barb. 383.] 1. <>n which the said E. F. had so neglected to . of all conditions precedent, as ante, dant hath no1 well or sufficiently saved, defended, or kept i the plaintiff from the said loss, charges, and damages . paid, expended, suffered, and was put unto as aforesaid, and come unto him for and by reason and means of the curity for the said E. F. as aforesaid, but hath I so to do, whereby the said bond became \ . plaintiff claims £ . .}. i '/,. Guardians of the Poor for the due Supply and PI i of Dispensation of the Condition. Elliott v. .Martin. 2 M. & W. 13. Churchwardens for the Performance of the Hates Collector, and Pleas. . Fletcher, L. R. 1 C. P. 217 ; L. R. 2 C. P. 469.] On Bonds in Restraint of Trade. W 5 M. & W. 548; Mercer v. Irving, EL, Bl. & El. 563; His, 1 El. .v HI. 391. .// a Bond given for the Fidelity of an Agent to '/•/fin the Plaintiff intrusted Goods to sell, (jf) . ( loodfellow, 1 Nev. & Man. 202. 7. it the Surety in an Annuity Bond. W bite v. Corbett, EL, Bl. & El. 1103. I ' .'// Administration Bond assigned by Order of the Probate Court. , 4 H. & X. 76 ; Archbishop of Canterbury v. Robertson, 1 < r. ^ \\ BRIBERY. /' natty of £100 for bribing a Voter at a Par- liann ntary Election, (r) '■ 5.] For thai the defendaat, after the passing of •'• Q. B. 514; Chapman v. Beckinjrton, 3 Q. B. Wake- 703; Mayor of Berwick v. Oswald, 1 E1.&B1. See cases in Fisher's Index, "Bond." I >.. M. & (r) See a form, Cooper v. Slade, 6 El. & n liability discharged. BL 417 : -il L. J. Q. B. 449, II. of L. See Bold, 6 post, " Statutes." DECLARATIONS ON CONTRACTS. BROKER. r X) a certain act of parliament, passed in the 17th and 18th year of the reign of QiiMMi Victoria, called an act to consolidate and amend the laws relating to bribery, treating, and undue influence at elections of members of parlia- ment, and before this Buit, promised [or gave] money to or for one A. B., who was a voter within the tine meaning and intent of the said statute for and at an election for a member [or members] of parliament for the borough of [or county of ], in order to induce the said A. B. to vote at tin- said election, contrary to the form of the statute, whereby the defendant became liable to forfeit for his said offence the sum of £100. And the plaintiff claims £ 1 00. BROKER. See "Agent," ante, 38, and post, " Insurance Broker." [Who is a broker within 57 Geo. 3, c. 60, Scott v. Jackson, 19 C. B. N. S. 134.] 1. Against Share Brokers for not purchasing Shares for the Plaintiff at the Market Price, according to Order. Williams v. The London Commercial Exchange Company, 10 Ex. 569. 2. Against a Broker for not giving his Principal a true Account of the Purchases which he had effected for him. Form and law. Thorn v. Bigland, 8 Ex. 725. [3. Against Client by Broker for not ratifying Sale. Biederman v. Stone, 36 L. J. C. P. 198 ; S. C. L. R. 2 C. P. 504 ; and see Grissell v. Bristowe, L. R. 3 C. P. 112 ; 37 L. J. C. P. 89; and Paine v. Hutchinson, L. R. 3 Ch. Ap. 388. 4. Against Broker employed to purchase and accept Goods, for accept- ing Goods not agreeing ivith the Contract Description. Zwilchenhart v. Alexander, 1 B. & S. 234. 5. Indebitatus Count by a Broker for Commission, $c. Money payable by the defendant to the plaintiff for work done by the plain- tiff as a broker, and otherwise, for the defendant, and at his request, and for •ommission and reward due from the defendant to the plaintiff in respect thereof, and for stock, shares, scrip, and goods sold and delivered by the plain- tiff to the defendant. Like counts. Knight v. Cambers, 15 C. B. 562 ; Knight v. Fitch, 15 C. B. 566 ; Smith v. Lindo, 4 C. B. N. S. 395. Count by broker fur a share of commission payable for introducing business. Gibson v. Crick, 1 II. & C. 142; Allan v. Sundius, 1 H. & C. 12,3. By a broker against Ins employer on the implied promise that shares delivered In' ni to sell were genuine, the shares being in fact forged, and the plaintiff having been compelled to replace them by genuine ones. Westropp v. Solomon, 8 C. B 345. CONTRACTS. CARRIERS. . phyer on an implied warranty that he hod author- W ,. Miers, LOG B. N. S. 348.] . \i;l;!KKS BY LAND. , ; The remedy is on contract or tort Sec Tort, lit. •• Carrier," where the Law on this sub- Marsh, 10 Sm. & M. 376; Bern. Sales (1st Am. ed.) . , Chit) | an d cases cited; Krulder v. Ellison, son r. Fargo, 49 N. V. 188 ; Southern Express Co. ». Ca- l ; Lawrence v. Minturn, 1 7 How. ( U. S. ) 100;] except where snoti ssedtohim. Coates ». Chaplin, 3 Q.B. 483; [1 Chitty I I bittj Contr. (llth Am.ed.) 723; Price w. Powell, 3 I i . Graves, 9 Yerger, 446 : Goodwyn v. Douglass, 1 Cheves, i & Maine R. R. 19 N. II. 122, 128. The consignor may has contracted Eor safe conveyance, although the title may have . Booperi;. Chicago &C.R.R. Co. 27 Wise. 81.] Incase bailment by A. and B.of 2 Is partly A.'s, and partly B.'s, A. and B. • the loss. Metcalf v. London & Brighton Ry. Co. 4 C. (fieient to sue one of several carriers in partnership. 1 \\ b. ... At common law a public carrier is liable absolutely for ,),. Rcepl in ease of loss by the act of God or the king's ene- ,„;. Bailm. 104; Chit. & Temp, on Car. 3C ; Oakly v. Ports- ;: Steam NavigationCo.il Ex. 618; [1 Chitty Contr. (llth aote (a).] By the carriers* act, 1 W. 4, c 68, s. 1. "no mail contractor, stage-coach proprietor, or other common carrier by r hireahall be liable for the loss (Hearn v. London & Southwestern 3; Pianciani v. London & South Western Ry. Co. 18^ C. B. • any article or property of the description following, ib I or silver coin of this realm, or of any foreign state, or :m_\ gold or silver in a manufactured or unmanufactured state, or any precious ewelry, watches, clocks, or time-pieces of any description, trinkets, bi, Dor and company of the banks of England, Scotland, I Ireland, or of any other bank in Great Britain or Ireland, orders, note-. or payment of money, English or foreign stamps, maps, writ- Is, paintings, engravings, pictures, gold or silver plate or plated china, silks in a manufactured or unmanufactured state, and wl lit up or not wrought up with other materials, furs or lace, or them, contained in any pureed or package which shall have been de- carried for hire or to accompany the person of any passenger in any mail or eh or other public conveyance, when the value of such articles or property contai 1 in such parcel or package shall exceed i 10; unless al the time of the delivery thereof at the office, ware- • iving-house of such mail contractor, coach proprietor, or other bis, her, or their book-keeper, coachman, or other ser- the purpose of being carried or of accompanying the person of any dd, the value and nature of such article or article- or shall have been declared by the person sending or delivering the Bo; . Pink, 8 C. & P. 361; and such increased charge as is mentioned, or an engagement to pay the same, be accepted by i\ ing Buch parcel or package " t that when any parcel or package containing any of .ill be so delivered, and its value and contents declared as ich value shall exceed the sum of £10, it shall be lawful for il contractor < h proprietors, and other common carriers, to in increased rate of charge, to be notified by some notice affii ■ rs in some public and conspicuous part of the office, DECLARATIONS ON CONTRACTS. CARRIERS. 95 Dbs. warehouse, or other receiving-house where such parcels or packages are re- ceioed by them for the purpose of conveyance, Btating the increased rate of charm' required to be paid over and above the ordinary rate of cai is a compensation for the greater risk and care to be taken for the safe convey- ance of such»valuable articles; ami all persons sending or delivering parcels or packages containing such valuable articles at such office shall be bound by such notice without further proof of the same having come to thru- knowledge." By the third section, " when the value shall have been so declared, and the in- creased rate of charge paid, or any engagement to pay the same shall have been accepted, the person receiving such increased rate of charge, or accept- ing such agreement, shall, if thereto required, Bign a n ipt for the package or parcel, acknowledging the same to have been insured (which receipt shall not be liable to any stamp duty); and if such receipt shall not be given when required, or such notice as aforesaid shall not bave been affixed, the mail contractor, stage-coach proprietor, or other common carrier as aforesaid, shall nol be entitled to any benefit or advantage under the act, but shall be liable as at the common law, and be liable to refund the increased rate of charge." The fourth section provides, "that no public notice or declaration shall limit or in anywise affect the liability at common law of any such mail contractors, stage-coach proprietors, or other public common carriers, for or in respect of any goods to be carried and conveyed by them ; but that they shall he liable as at the common law, to answer for the loss of or injury to any articles and goods inrespect whereof thai may not be entitled to the benefit of ike act, any pub- lic notice or declaration by them made and given contrary thereto, or in any wise limiting such liability, notwithstanding." Section six provides, "that nothing in the act contained shall extend or be construed to annul or in any wise affect any special contract between such mail contractor, stage-coach proprietor, or common carrier, and any other parlies, for the conveyance of goods." By the seventh section it is enacted, " that where any parcel or package shall have been delivered at any such office, and the value and contents declared, and the increased rate of charges been paid, and such parcel or package shall have been lost or damaged, the party entitled to recover damages in respect thereof shall also be entitled to recover hack such increased charges in addi- tion to the value of such parcel or package." The eighth section provides, "that nothing in the act shall protect any mail contractor, stage-coach proprietor, or other common carrier for hire, from liability to answer for loss or injury to any goods or articles whatsoever, aris- ing from the felonious (see The Great Western Ely. Co. v. Rimell, 18 C. B. 5s;,) acts of any coachman, guard, book-keeper, porter, or other servantin his employ ; nor to protect any such coachman, guard, book-keeper, or other servant, from liability for any loss or injury, occasioned by his own personal neglect or mis- conduct." By the ninth section, " such mail contractors, stage-coach proprietors, or other common carriers for hire, are not to be concluded as to the value of any such parcel or package by the value so declared as aforesaid, but that he or they shall in all cases be entitled to require from the plaintiff' proof of the actua, value of the contents by the ordinary legal evidence; and that the mail con- tractors, stage-coach proprietors, or other common carriers as aforesaid, shall be liable to such damages only as shall be so proved as aforesaid, not exceeding the declared value, together with the increased charges." The statute applies even to bulky goods of the description mentioned in the act ; and there is no distinction between gross and ordinary negligence, the carrier being equally protected in either case. Hinton v. Dibden, 2 Q. l'>. 646; he would, however, be responsible, notwithstanding the provisions of the stat- ute, for unreasonable delay or negligence in delivering the goods; Boys o. Pink, supra; or for wilful misfeasance, as sending the goods by a wrong con- veyance, or by a different route, or beyond the place of their desffation. Hearn v. London & South Western Ely. Co. 10 Ex. 79.'5; Chit. iSc Temp. Car. 50. The liability of railway and canal companies as carriers is regulated by the rail- way and canal traffic act, 1854, 17& 18 Vict. c. 31. It is enacted by section 7 of LABATIONS ON CONTRACTS. CAEEIEBS. ,pany as aforesaid Bhall be liable for the lossof or . or other animals, , or to any articles, eceiving, forwarding, or delivering thereof, occa- ilt of Mich company or its servants, notwith- .,,r declaration made and given by such com- :• in any wise limiting such liability; every such notice .raii.-u being hereby declared to be null and void: Provided lined shall be construed to prevent the said . ; conditions with respect to the receiving, for- any of the said animals, articles, goods, or things, ; or judge, before whom any question relat- ,e jusl and reasonable: Provided always, that - shall be recovered for the loss of or for any injury done to h annuals, beyond the sums hereinafter mentioned; that is to ty pounds; for any neat cattle, per head, fifteen pounds; .. per head, two pounds; unless the person sending or de- i pany shall, at the time of such delivery, have ptively of higher value than as above mentioned; dl be lawful for such company to demand and receive by Eor the increased risk and care thereby occasioned a upon the excess of the value so declared above the re- imited as aforesaid, and which shall be paid in addition to 2 : and such percentage or increased rate of charge du ied in the manner prescribed in the statute 11 Geo. 4 and 1 v 3, and shall be binding upon such company in the manner th( ied: Provided also, that the proof of the value of such ani- ls, and tilings, and the amount of the injury done thereto, - lie upon the person claiming compensation for such loss or ivided also, that no special contract, between such company and lecling the receiving, forwarding, or delivering of any as aforesaid shall be binding upon or affect - ch party un tine be signed by him or by the person delivering ii animals, arti( Is, or things respectively for carriage: Provided nothing herein contained shall alter or affect the rights, privileges, or liabilities of any such company under the said act of 11 Geo. 4 and 1 W. l. c. 68, with resp articles of the descriptions mentioned in the -aid ; [Beal i?. South Devon Railway Co. 3 H. L. Cas. 337. A npany is no! 1 to demand an increased charge, under s. 7. valuable horse, unless a declaration be made by the sender th an intention that it Bhould so operate. Robinson v. South Western Rail- w. I.. .1. ( . ]'. 234; 19 ('. B. N. S. 51. Declaration against com- _• nee in receiving a horse. Hodgman v. West Midland Rail- 1.. .1. Q. B. 233; 5 15. ,S: S. 173.] is not a reasonable condition, see McManus v. The Lancashire i uhire Ry. Co. 4 H. & X. 327; Pardington v. The South Wales Ry. I ■■ l II. & X v. Greal Western Ry. Co. 18 C. B. 805; Dunham tforthWestern Rv. Co. 18 C. B. 826; 26 L.J. C. P. 31; Wise Western Ry. Co. 1 11. &: N. 63; White v. Great Western Ry. C. B. N. S. 7; Peek v. North Staffordshire Rv. Co. 27 L. J. Q. B. 4<;:>; [EL, I . lo II. L. Cas. 173, 494; Martin v. The Great In- Railwi L. J. Ex. 27; L. R. 3 Ex. 9 ; Booth v. North East- L. J. Ex. 83; L. R. 2 Ex. 173; Allday v. Great Western i. .1. Q. B. 5; S. C. 5 B. & S. 903; Lord v. The Midland L .1. ( . ]'. i 70; L. 11. ■> C. P. 339; Robinson v. Great West- L. J. C. P. 123; 1 Chittv Contr. (11th Am. ed.) 690, cited, 6 q. ; Railroad v. Manuf. Co. 16 Wal- V. < entral R. R. 3 Wallace, 107; Western Trans- ill Wallace, 129; Graham v. Davis, 4 Ohio St. '•• Penn. R. R. 32 Penn. St. 414; Indianapolis & C. R. R. : Southern Express Co. v. Caperton, 44 Ala. 101; Crook, 44 Ala. 468; Beal v. South Devon Rail- S. ( 1. 3 E.& C. 338; Sager v. Portsmouth, S. & ■ ••ad Co. 31 Maine, 228; Aldridge v. Great Western Rail- ♦ DECLARATIONS ON CONTRACTS. CARRIERS. 97 Obs. way Co. 15 C. B. N. S. 582; T. P. & W. R. 11. Co. v. Merriman, 52 111. 123; Wilson v. Chesapeake & Ohio 11. R. Co. 21 Grattan, 654; Rixford v. Smith, 52 N. II. 355, 364, and cases cited; Louisville &c. \l. K. Co. v. Hedger, 13 Am. Law Reg. N. S. 145, and note ad finem. A special contract between the shipper of goods and a common carrier, for the carriage at the shipper's risk during transportation, does not exempt the carrier from liability for an injury caused to the goods, during transportation, by his own negligence. School District in Medfield v. Boston &c. R. U. Co. 102 Mass. 552; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 344, 3S3; Squire v. New York Central R. R. Co. 98 Mass. 239, and cases there cited; Pennsylvania R. R. Co. v. Butler, 57 Penn. St. 335; Welsh v. Pittsburg &c. R. R. Co. 10 Ohio St. 65; Wyld v. Pickford, 8 M. & W. 458; 1 Chitty Contr. (11th Am. ed.) 690, note (/), and cases cited; Willis t>. Grand Trunk Railway Co. 62 Maine, 488, and cases cited:- Western Transportation Co. v. Downer, 11 Wallace, 129; Powell v. Pennsylvania R. R. Co. 32 Penn. St. 414; Indianapolis & C. R. R. v. Cox 29 Ind.*360, 362; Indianapolis & C. R. R. v. Allen, 31 Ind. 394; Cooper v. Berry, 21 Geo. 526; Bissel v. New York Central R. R. Co. 25 N. Y. 442; Hawkins v. Great Western R. R. Co., 17 Mich. 57; Grace v. Adams, 100 Mass. 506; D'Arc v. The London & North Western Railway Co. L. R. 9 C. P. 325; Robinson v. London & S. Western Railway Co. 35 L. J. C. P. 123; Sa^er v. Ports- mouth, S. & P. & E. R. R. Co. 31 Maine, 227; New York Central R. R. v. Lockwood, 17 Wallace, 35 7.] 1. By a Carrier for the Carriage of Goods by Land, (r) Commencement as ante, 33, Form 1.] For the carriage of goods by the plaintiff for the defendant, at his request [conclude with account stated]. 2. For Freight of Goods. (s) Commencement as ante, 33.] For freight ["primage and average," if claimed'], for the conveyance by the plaintiff for the defendant, at his request, of goods in ships [conclude with account stated, as ante, 34, Form 1]. 3. For Lighterage, (f) Commencement as ante, 33.] For the lighterage and the shipping, convey- ance, and landing of goods by the plaintiff for the defendant, at his request [account stated, as ante, 34, Form 1]. 4. For the Tonnage of Goods, (u) Commencement as ante, 33.] For the tonnage of goods carried by the plaintiff on a certain canal in boats and vessels for the defendant, at his re- quest [conclude with account stated, as ante, 34]. (r) The common count for work suffices, v. Young, supra; 18 & 19 Vict. c. Ill ; when Ante, 28. But if money is not to be paid for to declare specially ; Amos v. Temperlev, the carriage of the goods, the above account supra; either the owner or master may sue will not be supported. Bracegirdle v. Hincks, for the freight ; when freight pro rata can be 9 Ex. 381. recovered, see Vlierboom v. Chapman, 13 M. (s) See, in general, Abbott on Ship.; Chit. & W. 230; Christv v. Row, 1 Taunt. 300: & Temp, on Carriers, 191, 209. This is the Orgood v. Groning, 2 Camp. 466. [Lien on form given by the C. L. P. Act, 1852, but a cargo for freight. Tamvaco v. Sampson. L. delivery must be proved where it is sought to R. 1 C. P. 303. As to liability of indorsee charge the consignee or indorsee of the bill of of bill of lading Avho has indorsed over before lading; Moller v. Young, 5 El. & Bl. 755; arrival of ship. Smurthwaite v. Wilkins, 31 Amos v. Temperlev, 8 M. & W. 798 ; the L. J. C. P. 214.] above common form suffices against the in- (t) As to the liabilities of lightermen, see dorsee of a bill of lading ; Dougal v. Kern- Chit. & Temp, on Carriers, ble, 3 Bing. 383; when such indorsee liable, (») 3 Went. 70. see Sanders v. Vanzeller, 4 Q. B. 260; Moller VOL. II. 7 l.ARATI CONTRACTS. CARRIERS. ;,. /' r Demurrage. (x) For the demurrage of a ship of the plain- _.. by the defendant [conclude with account stated, as /• ; . H7,,, ■ „./ Wan house Room, (y) ...:;.] For wharfage and warehouse-room for goods plainti£F for the defendant, at his request [account stated and 7. /•'•'/■ Passage Money, is ante, 38.] For the passage of the defendant on board the plaintiff, at the request of the defendant [account stated and ■ [«../;./'/-■ ' of a Ship against the Shipper and Consignee of ing the Goods within a reasonable time. (z) 1 n consideration that the plaintiff received on board of his ship 1 the defendant, to be by the plaintiff carried in the said ship 1 to . and there delivered to the defendant (certain perils and septed), the defendant paying freight for the same as agreed upon, the defendant promised the plaintiff to receive the said goods at I from the plaintiff within a reasonable time after the defendant should have notice of the plaintiff being ready to deliver the same as aforesaid, and the plaintiff accordingly carried the said goods in the said ship from to lid, and all conditions were fulfilled, and all things happened, and all • jed, necessary to entitle the plaintiff to have the said goods : by the defendant as aforesaid ; yet the defendant did not nor would the Baid goods within Buch reasonable time as aforesaid, whereby the , tras detained at aforesaid for a long time, and the plaintiff was deprived of the ose of the said ship, and incurred expense in maintaining the . ill the time last aforesaid. unt, $ee J< sson v. Solly, 1 Taunt. 52; Evans v. Forster, 1 B. & Ad. 11-: Mdner 9. Ifoung, 5 El. & HI. 755. generally, see Chit, made against the owner in respect of such • above count charges. Somes v. British Empire Shipping re there is :i contract ex- Co. 8 II. L. Cas. 3.38.] > ; Lear v. [z] In the absence of any stipulation in tract, and the the bill of lading as to the time when the • lip longer than goods are to he cleared from the ship, no ac- the port of discharge, tion is maintainable hy the master for the lal (per Paj detention of the vessel! Evans v. Foster, 1 I C. & B. & Ad. 118; Brouncker v. Scott, 4 Taunt. Iv I] v. An- I. But the owner may maintain a special ac- [f the detention is tion for the detention" of the ship. See Horn be proper, v Bensusan, 9 C. & P. 709; 2 M. & Rob. 707. 320; ante, 98, note (x). See a form by the of wharfingers, -ce owner of a lighter for not accepting and un- [When a chat- loading g Is therefrom, Granger v. Bacre, urn of lien against 12 M. & W. 431 ; and see forms on Bills of urred in keep- Lauing, post, 103, 104. vim can be DECLARATIONS ON CONTRACTS. CABB1EBS. 99 Hy master of ship against consignor on the bill of lading, stipulating that the vessel should take her regular turn in unloading, for not unloading in turn. Cawthron t\ Trickett, 15 ('. B. N. 8. 754 By the carrier against the shipper upon the implied warranty that the goods "hipped were not dangerous. Brass v. Maitland, G El. & Bl. 470.] 9. Against a Railway Company or other Common Carrier for Losing or Injuring Goods. Commencement as ante. 5.] For that the plaintiff, at the defendant's request, delivered to the defendant, (a) then being a common carrier (b) of goods for hire, (c) goods of the plaintiff to he taken care of and safely and securely carried hy the defendant, as such common carrier, from to , ( a bailee for losing goods out of his warehouse, Cairns v. Robins, 8 M. & W. 25S. ('■) [As to the hire of common carrier, 1 Chitty Contr. (11th Am. cd.) 687.] ((/) This averment does not appear to be necessary, and, at all events, a variance would be amended at the trial. As to the LARATIONS ON CONTRACTS. CARBIEBS. iln-, . .1 1 . v the defendant ml in that behalf (/) Y.-t the Chit. & •r. (llih Am. Where railway la beyond .mi niiiway, they are Muschamp v. 3 M. & W. - flbrdshire By. i U; I ach r. London & Bris- -. : II. L. .i . \ S 1367; Mytton v. i 11. & V 615; 28 L. Blake v. Great Western Ry. - ;. -. is: I Groat West- V 274 : Shepherd v. Ry. I L. R.3 Ex. 195; ireat Western Ry. Co. 3 H. - John v. Van Santvoord, Becher v. Great Eastern Ri i o I. l; " Q B. 241 ; Illinois Cen- 34 1 I. 389, 394 : Illi- ■ . l; i. 32 111. 116 ; Illin i R R.Co.». Copeland, 24 III. •;.. R. R. Co. v. Franken- - East Tennessee & Va. R. R. ■ Heisk. (Tenn.) 143; Western v McElwee, 6 Heisk. Nashville R. R. Co. v. ... 7 Heisk. 253;] though the goods artk liv water ; Wilby o. West -: L. J. Ex. 181; 2 II. & y limit their responsibility nt. [See Van Santvoord 6 Hill, 158 ; Farmers' & Mer- . Lake Champlain Transpor- ter V*t. 1,40; 8. C. 23 Vt. 186, 209; K - i lowen, 223. A com- iii">.'. ■_ goods within the realm, . r\ them i" a place without the realm, to the duties of a common carrier Crouch v. London Ry. Co. U C. B. 22a. ived without the realm, Bee ! ■.-• rn Ry. ( !o. 12 ( '. B n - tu v. L.& s. W. liv. I- R i Q B 54. Where goods are i railway company to be carried ond their line, subject to special for the plaintiff', for reward, (e) to the defendant did not take care of or safely conditions restricting their liability, the con- ditions apply throughout the whole distance. Collins r. Bristol & Exeter Ry. Co. 11 Kx. 790; S. C. 7 H. L. Cas. 194; but see .Etna Insurance Co. v. Wheeler, 5 Lansing, 480. Where a contract is made with one company to carry over the lines of other com- panies, the latter are no parties to it, and can- not be surd upon it; Coxon v. Great West- ern Ry. Co. 5 II. & N. 274 ; unless where the circumstances are such as to consti- tute the several companies partners in the transaction. lb. 5 II. & N. 274, 279; 1 Chitty Contr. (11th Am. ed.) 704, note (d). The American cases generally concede that a com- mon carrier may, by agreement, render him- self liable to deliver goods at a point beyond the limits of his own line of travel ; and that it is not ultra vires, but within the powers implied in the incorporation of a company established for the transportation of goods and merchandise, to make such an agree- ment, if not expressly prohibited. Noyes t'. Rutland & Burlington R. R. Co. 27 Vt. 110; Schraeder v. Hudson River R. R. Co. 5 Duer, 55 ; Fov v. Troy & Boston R. R. Co. 24 Barb. 382; Hill Mannf. Co. v. Boston & Lowell R. R. Co. 104 Mass. 133, 134; Per- kins v. Portland, Saco & Portsmouth R. R. Co. 47 .Maine, 573; Barter v. Wheeler, 49 N. II. 9, 28; Nashua Lock Co. v. Worcester & Nashua R. R. Co. 48 N. H. 139 ; Najac v. Boston & Lowell R. R. 7 Allen, 329, 333; Wilby v. West Cornwall Ry. Co. 2 H. & N. 703; South Wales Ry. Co*, v. Red- mond, 10 C. B. N. S. 675 ; Kessler v. New York Central R. R. Co. 7 Lansing, 63 ; Gray v. Jackson, 51 N. H. 9 ; Maghee v. Camden & Amboy R. R. Co. 45 N. J. (Law) 514; Baltimore & Phila. Steamboat Co. v. Brown, 7)4 l'enn. St. 77 ; Root v. Great Western R. R, Co. 45 N. Y. 524 ; but see Hood v. New York & New Haven R. R. 22 Conn. 502; S. I'. 22 Conn. 1 ; Elmore v. Naugatuck R. R. 23 Conn. 457; Naugatuck R. R. v. Button Co. 24 Conn. 468. But the case of Muschamp r. Lancaster & Preston Junction Railway Co. and other English cases cited above, and those cited below, go much further, B l: ■ i lent, 1 ind l rank R. R. It ii the del-, of a ( i- to carry for a rca-oii- ■ r them within a rea- o. London \ B S. 66.] ibsolute and exten- ougibility, B i - v. Hill, m plied by omrnon carrier a duty r, and i> liable in and the qu, en » 8 Chit. 1 emp. 15; |l (11th Am. ed.) I , a, l( | Kohannau v. Hammond, 42 Cal. 227;] and being the con- tract implied by law resulting from the bail- ment, it is not necessary to aver apromis< in the declaration to the above effect; Com. L. P. Act, 1852, s. 4; [1 Chitty PI. 397 ;] a carrier may, however, limit his liability by special agreement, but then he ceases to be a com- mon carrier; see note (b) ; and tin- special contract must be alleged in the declaration. See post, 106; |1 Chitty Contr. (11th Am. ed.) 690 it sir/. • notes and cases; Nelson J. in New Jersev Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 382; Sager v. Ports- mouth, Saco, P. & Eastern R. R. Co. 31 Maine, 228; Kansas &c. Co. v. Reynolds, 8 Bans. 623.] DECLARATIONS ON CONTRACTS. CARRIERS. 101 and securely carry or deliver the said goods for the plaintiff, but lost [or in- jured] {y) the same. And the plaintiff claims £ . and decide that a common carrier, receiving goods directed to places beyond the terminus of his route, and giving acceptances tin- the same without limiting his responsibility to his own route, will be, prima facie, liable for the loss of such goods, at, any point of the transit, even alter their delivery to other for- warders. And hence, it seems to he settled in Bach case that the carrier to whom the goods are first delivered is alone liable in the event of the goods not being safely de- livered. Thus it was said by Martin 15. in Shepherd v. Bristol & Exeter Rv. Co. L. II. 3 Ex. 19.-): "When two railway companies are connected in business to- gether, so that one of them receives cattle to be conveyed over the line of the other, L think there is hut one contract, and that is made between the customer and the receiv- ing railway company, and that their liability is just the same as if they had been the own- ers of the railway the whole way upon which the cattle are to be conveyed." Collins r. Bristol & Exeter Rv. Co. 11 Ex. TOO; S. C. I H. & N. 517, 519; 27 L. J. Ex. 47; 7 H. L. Cas. 194 ; Crouch r. Great Western Ry. Co. 2 H. & N. 491, 503 ; Mvtton i\ Mid- land Rv. Co. 4 H. &N. 615; Becher v. Great Eastern Ry. Co. L. R. 5 Q. E. 241 ; Webber r. Great Western Ry. Co. 3 H. & C. 771 ; Illinois Central R. R. v. Cowles, 32 111. 116; Illinois Central R. R. v. Johnson, 34 111. 3s<.i, 394 ; Wilson v. York, Newcastle & Berwick Ry. Co. 18 Eng. Law & Eq. 557 ; Condict o. Grand Trunk R, Co. 54 N. Y. 500, 502; Ward v. Vanderbilt, 4 Abb. N. Y. App. Dec. 521; Williams v. Vanderbilt, 28 N. Y. 217 ; Buskirk v. Roberts, 31 N. Y. 661. The American decisions, on this point, not onlv differ from the English, but they are not entirely in harmony with each other. See Elmore r. Naugatuck R. It. Co. 23 Conn. 457; Nutting v. Conn. River R. It. Co. 1 (irav, ;Vr_> ; Burroughs r. Norwich & Worce.-ter It. R. ( 'o. loo Mass. 26; Hill Manuf. Co. v. Huston & Lowell R. R. Corp. lo-t Mass. 122: tiassv. New York, Providence & Boston R. R. Co. 99 Mass. 220; Mosher V. Southern Express Co. 38 Geo. 37; Cutts v. Brainard, 45 Vt. 466; Condict v. Grand Trunk Ry. 4 Lan- sing, 106; Woodward v. Illinois Central R. R. Co. 1 Biss. 403 ; Cohen v. Southern Ex- press Co. 45 Geo. 148; Pennsylvania IJ. R. Co. v. Berry, 68 Pcnn. St. i'72. In Barter v. Wheeler, 49 N. 11. 9, Bellows C. J. said : " Where several railroads make a business arrangement, by which a continuous line is formed, and each sells tickets over the whole line, and contracts to convey goods through the entire route, receives the price for it in one entire sum, which is to be divided in stipulated proportions among the several roads, there is a decided weight of authority here in favor of the rule that the company receiving goods to any point in said continu ous line is responsible, as carriers, for their loss or injury on any part of the line." Locke Co. v. Worcester & Nashua R. R. Co. 48 N. H. 339 ; Condict v. Grand Trunk Ry. 4 Lansing, 106. But, on the other hand, in Burroughs v. Norwich & Worcester R. R. Co. 100 Mass. 26, it is said by Gray J. that "the law is well settled in Massa- chusetts, and in most of the United States, that a corporation established for the trans- portation of goods for hire, between certain points, and receiving goods directed to a more distant place, is not responsible beyond the end of its own line, as a common carrier, but only as a forwarder, unless it makes a (q) [Loss of goods, measure of damages. O'ilanlan v. The Great Western Ry. Co. 19 C. B. N. S. 310; Rice v. Baxendale, 7 II. & N. 96.] It is not necessary to prove negligence on the part of the carrier although it be averred ; Richardson v. London & South Coast Ry. Co. 7 C. B. 832; unless in a case where there is a special contract ; Chit. & Temp, on Carriers, 142, 233 ; [1 Chitty Contr. (11th Am. ed.) 688, 689. Proof of negli- gence is unnecessary to charge him ; and proof of diligence will not excuse him. McCall t\ Brock, 5 Strobh. 119. See Mershon v. Hohensack, 2 N. J. 372. As to the burden of proof, see Hubbard v. Harnden Express Co. 10 R. I. 244, 254; Story Bailments, §§ 529, 573; Sager v. Portsmouth, Saco, P. & Eastern R. R. Co. 31 Maine, 228; Patterson v. Clyde, 67 Peun. St. 500; The J. Russell &.c. v. New Haven Steamboat Co. 50 \. Y. 121 ; Kansas &c. Co. i\ Reynolds, 8 Kans. 623 ; Arend v. Liverpool Steamship Co. 6 Lansing, 457; S. C. 64 Barb. 118. Proof of a delivery of the goods to the com- mon carrier, and a failure on his part to deliver them at their place of destination, is prima facie evidence to charge him, and the burden then falls on the carrier to exempt himself from liability. 2 Greenl. Ev. § 219; McCall V. Brock, 5" Strobh. 119; Hastings v. Pepper, 1 1 Pick. 41 ; Lewis v. Smith, 107 Mass. 334 ; Cobb v. McMechen, 10 John. 160 ; Clark v. Spence, 10 Watts, 335 ; King v. Shepherd, 3 Story, 849; The Mary Wash- ington, 1 Abb. (U. S.) 1 ; Whitesidesw. Rus- sell, 8 Watts & S. 44 ; Westcott v. Fargo, 6 Lansing, 319; S. C. 63 Barb. 349; Bazin v. Steamship Co. 3 Wallace jr. 229; Chap- man v. New Orleans &e. R. R. Co. 21 La Ann. 224; Midland Ry. Co. v. Bromley, 17 C. B. 372; Atwood v. Reliance Transp. Co. 9 Watts, 87; Murphv v. Staton, 3 Munf. 239; Ewart v. Sweet, 2 Bailey, 161 ; M' Ar- thur v. Sears, 21 Wend. 190. The Ori- flamrae, 1 Sawyer, 176; The Live Yankee, Deady, 420. So where the goods are found to have been damaged daring the voyage Clark v. Barnwell, 12 How. (U. S.) "272 , Aldeu v. Pearson, 3 Gray, 342 ; Hunt v. The Cleveland, 6 McLean, 76.] LARATIONS ON CONTRACTS. CARRIERS. [9^, Vedarai r negligently shipping and carrying. Scurr, I- U. 2 Q. B. 8G ; Laveroni v. Drury, 8 Ex. ICG; [umphwy> i, q. i, ,.; ; Kay *. Wheeler, L. R. 2 C P. 302.] its liability, t. Co. 1 Gray, rn l;. R. Co. 4 Alleu, - r I;. R. 1 \i kins V. ismouth R. R. I to. 47 - . toga & W bite- i McMillan v. - iilicru ^ Northern Indiana K. h. 119, 120; Brigga o. Boston , k. Co •■ Allen, 244; Pratt v. Chainplain R. R. Co. \, v. York & Provi- . , , i9 Mass 226; Hill Manuf. i; R. ( o. 104 Mass. 11 III. 407 ; Stratton v. , Haven R. R. 2 E. 1>. - . , Is ,-. Hr.«,k>. 1 Edm. Bel. Bowman v. Hilton, 11 Ohio, 303 : . dcrbilt, 19 Barb, -l-ll ; Skinner ii Maine, 477. From this it follows unpanies associate for the portatio rer the entire route Quoua line, an intermediate company Mr the loss oi the goods happening : the line. See Barter v. v.< N. 11. 9, 25 ; Converse v. Nor- I 1 N. II ■• Knight v. P. S. S P. It. Co. 56 Maine, cited ; Lamb <-. Cam- R. U. ( o 2 Daly (N. Y.), 454; Great Western Ry. Co. 65 • . Railroad v. Manuf. Co. 16 Wal- Milwaukee &c. R. R. | 619; B ■ . Lake Shore N V. 491. When Beveral together, and form a con- ol transportation for freight and m mon carriers, each being i for In ight and paasen- ■■ hole line, and to receive pay- me, which is to be divided i ■ tain stipulated propor- liable for Losses or ii I m .11 an> part of the line. Barter • V II. 9, and cases cited ; H R. ( ij. v. rlanna, . Boston & Worcester II All. i - Parmeke v. < , 26 Wise. 439. I not to prevail • ni made between them ■.. er the whole ball !).■ de- acceeding car- ier .-o receiving them shall pay to his jiredecessor the amount already due for the carriage, and the last one eolleet the whole from the consignee. In such case each carrier has been held liable only for the transit of the goods upon his own part of the line. Darling v. Boston & Worcester It. It. Corp. 11 Allen, 295; Judson v. Western R. K. Corp. 4 Allen, 520; C, H. & 1). & D. & M. R. It. Co. v. Porteus, 19 Ohio (N.S.),221 ; .Etna Ins. Co. v. Wheeler, 5 Lansing, 480; . New York &c. R. R. Co. 99 Mass. 220. Where goods in a box were shipped by sev eral successive carriers, and when delivered to the consignee (although there were no ex- ternal indications of the fact), the box was found ti> have been opened, and certain goods taken therefrom, it was held that the jury might presume, in the absence of evidence to the contrary, that the box remained un- opened until it came into the possession of the last earrier, and that the loss occurred through his fault. Laughlin v. Chicago &c. K. R. Co. 2* Wise. 204. By the rule as now established in Massachusetts, when a com- mon carrier is a corporation, whose business it is to transport goods over a particular route, goods delivered to such corporation, directed to a more distant place, are pre- sumed to be received for the purpose of being eanied by it over its own route only, and then forwarded by another carrier, employed on behalf of the consignor, to their place of destination. Pendergast v. Adams Express Co. 101 Mass. 123; .Jacobs v. Hooker, 1 Edm. Sel. Cas. 742 ; Root v. Great Western R. H. Co. 45 N. Y. ">24. For other cases upon this Bubject, see 1 Chitty Contr. (11th Am. ed.) 7(14, note (V New i >rleans Steamship Co. 106 Mass. 468; Cutting v. Grand Trunk R. R. Co. 13 Allen, 381, 386. But a different rule was applied where the carrier had full knowledge that the goods were sold, if forwarded seasonably. Drilling v. Grand Trunk R. R. Co. 48 N. H. 455. See, further, as to the measure of dam- ages for non-delivery, delay in the delivery, or deterioration of goods intrusted to a carrier, Rice v. Ontario Steamboat Co. 56 Barb. 384 ; Rome R. R. Co. v. Sloan, 39 Geo. 636; Cutting v. Grand Trunk Rv. Co. 13 Allen, 381 ; Smith v. New Haven &c. R. R. 12 Allen, 531 ; Hamilton v. McPher- son, 28 N. Y. 77; King v. Woodbridge, 34 Vt. 565; Wilson v. Lancashire &c. Ry. 9 C. B. (N. S.) 632; Gee v. Lancashire *&c. Rv. Co. 6 H. & N. 211; Collard v. South Eastern Ry. 7 H. & N. 79 ; Great West- ern Ry. v. Redmayne, L. R. 1 C. P. 330 ; Smeed v. Foord, 1 El. & El. 602; Bovd v. Fitt, 14 Irish C. L. 43; Sisson v. Cleve- land &c. R. R. 14 Mich. 489; Vroman v. The American Merchants' Union Express Co. 9 N. Y. Sup. Ct. 512; Home v. Mid- land Ry. Co. L. R. 8 C. P. 131 ; Rice v. Baxendale, 7 H. & N. 96 ; Hadley v. Bax- endale, 9 Ex. 341. If there is no market value for such goods at the place of deliv- ery, the jury must ascertain their value by taking the cost price, together with the cost of carriage, and allowing a reasonable sum for importer's profit. O'Hanlan v. Great Western Railway Co. 6 B. & S. 484. Loss of hire of goods sent for hire cannot be re- covered, unless the carrier had notice that they were sent for that purpose. Hales v. London &c. Ry. Co. 4 B. & S. 66. Nor loss of profit by a sale at a particular mar- ket, unless the carrier had notice that they were sent there to be sold. Great Western Ry. Co. v. Redmayne, L. R. 1 C. P. 329. An agreement may be made by the parties as to the value to be put upon the goods in case of loss or injury. See McCance v. London &c. Ry. Co. 3* H. & C. 343. As to damages for injury to goods transported, see Winne r. Illinois Central R. R. Co. 31 Iowa, 583. Rule where carrier had lost machinery for which he was notified the consignee was waiting. Cincinnati Chronicle Co. v. White Line Transit Co. 1 Cine. (Ohio) 300. See V irk slung- &c. R. R. Co. v. Ragsdale, 46 Miss. 458.] LARATIONS ON CONTRACTS. CARRIERS. [ 1(1; /,. Nation for refusing to carry a Passenger. \ rtheni Railway Co. L. B. 1 Q. B. 7.] \\ \ m mo n Carrier for the Loss of or Damage to Groods. Bite, 5.] For that the defendant lost [or damaged] the s, thai : ■ , which the plaintiff had delivered to the is a common carrier of goods for hire, and which he had received ich carrier to be carried by him for the plaintiff, for reward dant And the plaintiff claims £ . [See Syras v. Chaplin, 5 12. A wrier for carelessly delaying the Carriage and Deliv- ery of a Parcel. I r ihat the plaintiff delivered to the defendant, as and being a common f the plaintiff, upon the terms that the same should be carried .1 by the defendant from to , and there delivered by the ndant t.i the plaintiff within a reasonable time in that behalf, for reward to the defendant ; and although such reasonable time elapsed before the com- iii. in-. ni« nt of this Buit, yet the defendant did not deliver the said goods within i&onable time, and the said goods were not delivered to the plaintiff until the expiration of a long and unreasonable time after the time when the »uld have been delivered to the plaintiff, and by reason of the premises tl„. said :_'"•..] For that the plaintiff delivered to the defend- rier of goods for hire, goods of the plaintiff to be carried by tin- defendant for the plaintiff from to , and there to be delivered f..r tin- plaintiff, for reward to the defendant in that behalf, upon and subject other terms and conditions agreed upon by and between the plain- md defendant, the terms and conditions following, that is to say [here set • 'inns as are material]. And the plaintiff says that he has performed all conditions precedent [#c. as ante, 39, between the **]. And » ; Devon Ry. Co. cases citerlin note (f); Sager v. Portsmouth. : H:il- o. London &C. Ry. Saco, P. & Eastern 'R. R. Co. 31 Maine, 228.] They may make "just and reasonable coudi- may, in general, limit his tions " for receiving, forwarding, and deliver- uice <>r Bpecial eon- ing animals, articles, goods, or things ; 17 & rial companii can- 18 Vict. c. 31, s. 7; Chit. & Temp, on Car- ,h "" olntely against the riers, 70; ante, 96, 97 ; under the above act a ''' "' aaioned special contract is not binding, unless signed v;u " »r default, by the partv contracting or person deliver- ..ntr. (11th Am. ed.) 690, and ing the cattle or goods for carriage. DECLARATIONS ON CONTRACTS. CARRIERS. 105 the plaintiff further says that the defendant did not deliver the said goods for the plaintiff at aforesaid, on aforesaid [this must depend upon the >i,,ie agreed upon by the terms of the special conditions']. And the said goods, by and through the carelessness and negligence of the defendants, (,/) became and were damaged and injured, although the said goods were not damaged or in- jured by or through [8?c. ; here negative any damage or injury to the goods through any of the causes against which the carrier is protected by tin' terms of the special conditions']. And by reason of the premises the said plaintiff [fyc. ; here aver any special damage that the plaintiff has sustained, and conclude:] And the plaintiff claims £ . 14. Against a Booking-office Keeper for not taking Care of Goods, and safely delivering them to the Proprietor of the Wagon by which they were directed to be forwarded, (o) For that the plaintiff, at the request of the defendant, caused to be deliv- ered to him a parcel containing goods of great value, and which said parcel was directed to C. A. Esq., of- -, upon the terms then agreed upon between the plaintiff and defendant, that the said parcel should be taken care of and safely and securely kept by the defendant for the plaintiff until the same could be delivered by the defendant to the proprietor of a certain wagon commonly called [S?c], or his servant, in order that the same might be safely and securely carried and conveyed in and by the said wagon from a certain inn called [S>-c], situate and being [Sfc], to , and there be safely and securely delivered to the said C. A., pursuant to the direction aforesaid, for reward to the defendant in that behalf, and the defendant had and received the said parcel and its con- tents upon the terms and for the purpose aforesaid [here aver performance of all conditions precedent, as ante, 39, between the **], yet the defendant did not nor would take due or proper care of the said parcel and its contents afore- said until the same could be delivered, nor did nor would deliver the same to the proprietor of the said wagon, or his servant, for the purpose aforesaid, but negligently lost the same. And the plaintiff claims £ . [15. Against a Carrier for not delivering according to the Directions of the Plaintiff. That in consideration that the plaintiff would deliver to the defendant, as and being a carrier for hire, certain goods to be by the defendant carried from t0 > an(i there delivered according to the directions of the plaintiff, for reward to the defendant, the defendant promised the plaintiff to carry the said goods from to aforesaid, and there deliver the same according to the directions of the plaintiff in that behalf ; and the plaintiff delivered the (n) [In a declaration in contract against a fondants" [the carriers] while in their care common earner, it is common, though not and custody, and before delivery to the plain- necessary, to allege that the goods were in- tiff, and it 'was held that the plaintiff mi-ht jured by the negligence of himself and his recover for an injury to the goods through servants. And, under such a declaration, their actual negligence 1 actual negligence may be given in evidence. (o) See another form against a booking- Gray J. in School District in Medfield v. office keeper and law. Gilbart v. Dale, 5 Boston &c R R. Co. 102 Mass 555. In Ad. & E. 543 ; and see Muschamp r. La* tins case the declaration alleged that the in- caster & Preston Ry. Co 8 M & W 4<>2 liny occurred "through the fault of the de- LABATIONS ON CONTRACTS. CARRIERS. dant. and the defendant received the same for the pur- o the terms aforesaid, and the plaintiff directed the defendant to al a certain place in aforesaid, called ; and all , fulfilled, and all things happened, and all times elapsed, ~.irv m entitle the plaintiff to have the said goods delivered by the ist-mentioned place; yet the defendant did not deliver the the last-mentioned place, whereby the plaintiff lost the said to (lie destination of t//>< goods being altered by the consignee, see Harden. 7 EL & X. 400.] - thorn v. South Staffordshire Ry. Co. 8 Ex. 341. for Damages done to Furniture in removing it. That in consideration that the plaintiff would employ the defendant to iv from to certain furniture of the plaintiff, for ad to the defendant, the defendant promised the plaintiff to use due care, I, and diligence in removing and carrying the said furniture as aforesaid, and the plaintiff employed the defendant for the purpose, and on the terms the defendant did not use due care, skill, and diligence in re- . rying the Baid furniture as aforesaid, but in so doing broke and injur.d the same, whereby the said furniture was much damaged and lessened in value. 17. .1 Railway Company for not safely keeping Goods left in tit, ir < 'ustody at one of their Stations. That in consideration that the plaintiff would deliver to the defendants cer- tain goods "if the plaintiff, to be by the defendants safely and securely kept, and redelivered to the plaintiff on request, for reward to the defendants, the promised the plaintiff safely and securely to keep the said goods, ■ 'I. liver the same to the plaintiff on request; and the plaintiff deliv- the defendants and the defendants received the said goods for the pur- I on the term- aforesaid, and the plaintiff afterwards, and within a ble time in that behalf, requested the defendants to redeliver the same t'i the plaintiff; and all conditions were performed, and all things happened, all time - elapsed, oe ary to entitle the plaintiff to have the said goods ecureJy kept, and redelivered by the defendants to the plaintiff as the defendants did not safely and securely keep the same, and liver the same to the plaintiff as aforesaid, whereby the said goods were lost t.. the plaintiff, and he was put to expense in endeavoring to recover pos- n nt' them. A I' '■ Van Toll v. South Eastern Ry. Co. 12 C. B. N. S. 75.] CARRIERS BY WATER. 1. Against n Carrier h>j Water for losing Goods. iffe v. Bourne, 2 Bing. N. C. 314; S. C. in error, 3 M. & G. 643. A iid count might be added for losing the goods between the place of land- ed the plaintiff's place of business. James v. Bourne, 4 Bing. N. C. 420. DECLARATIONS ON CONTRACTS. CARRIERS. 107 2. Against a Carrier by Water for damaging a Cargo. Bennion v. Davison, 3 M. & W. 183. And see post, "Tort," "Carriers.' Form in tort against a ferryman for neglect in landing goods, Walker v. Jackson, 10 M. & W. 161. 3. Against a Carrier by Water, by the Consignor (with whom the Con- tract was made), for not giving the Consignee Notice of the Arrival of the (roods or forwarding them to him. (p~) For that the plaintiff, at the request of the defendant, delivered (\ Ackerland, 15 111. 474 : McAndrews v. Whitlock, 52 N. V. 40; Mills v. Michigan &C. R. R. Co. 45 N. V. 622; Mai-nan v. New Orleans &c. R. K. Co. 24 La. Ann. 333; Zinn v. New Jersey Steamboat Co. 49 N. Y. 442; Redmond ^.'Liverpool &c. S. S. Co. 56 Barb. 320; The Marv Washington, 1 Abb. (U. S.) I ; Mierson v. Hope, 2 Sweeny, 561 ; Solomon v. Philadelphia Steamboat &c. Co. 2 Daly, 104; Lamb v. Camden &c. It. R. Co. 2 Daly, 454; Shenk v. Phila- delphia Steam Propeller Co. 60 Penn. St. 109. The carrier will continue liable as such until the consignee has received, from some source, information of the arrival of the goods, and has opportunity to remove them. The Mary Washington, 1 Abb. (U. S.) 1. In the case ut' railroads, they continue liable as carriers until the expiration of a reasonable time for delivery of the goods after arrival at their place of destination. Winslow r. Vermont &c. R. R. Co. 42 Vt. 700. When a common carrier undertakes to transport g Is, consigned to a person residing beyond his route, at a point to which there is no regular carrier, his liability is terminated by delivery of the poods to a warehouseman, at the point upon his route nearest to the resi- dence of the consignee, and giving notice to the Latter. Salinger o, Simmons, 8 Abb. Pr. N. S. As to the duty of a common carrier of goods by water, when he cannot find the consignee, or some person to represent him at the place or port of delivery, see Hamilton v. Nickers. »n, 1 1 Allen, 308, 309, 310. As to duty of carrier where consignee i< not found, sec American Express Co. v. Hockett, 30 Ind. 25(t; Salinger a. Simmons, 2 Lansing, 325. .Measure of damages for delay in giving notice. See New Orleans &c. R." R. Co. v. Tyson, 46 Miss. 729.] (7) A bill of lading is evidence of a ship- ment as against a ship-owner in favor of a shipper of goods or of an indorsee for value. Berkeley r. Watlin-. 7 Ad. & E. 29. See Chit. & Temp, ou Carriers, 167; post, 109, note (t). LABATIONS ON CONTRACTS. CARRIERS. rding and Bending or delivering the same, or notifying ; before the commencement of this suit, yet the send or deliver the Baid goods for the plaintiff to i ^ or, within Buch reasonable time or at any other time, e notified to the said F. S. within such reasonable time, :!„■!• time, Buch arrival of the said goods ; but the defendant wrong- ... in bis possession for a long and unreasonable time, r forwarding or delivering or causing to be delivered the I . S. for the said plaintiff, or otherwise notifying or ,1 to the Baid F. S. the arrival of the same ; and by reason rwards refused and declined to accept and purchase tl„. gai be otherwise would have done, whereby the plaintiff leprived of gains and profits which would otherwise have accrued . hath lost other opportunities of disposing of the said goods, and the benefit of the profits which would otherwise have arisen therefrom, and hath incurred expenses in endeavoring to obtain the goods, and the same are injured and lessened in value. And the plaintiff claims £ . 1. / i Bill f Lading Ig the Consignee against the Master for not livi ring or for damaging the Cargo. For that the defendant, by a bill of lading made by him on the day , A. D. - — . and delivered to the plaintiff acknowledged certain goods therein mentioned to have been shipped in good order and well conditioned .m board a ship called . of which the defendant was the master, and thereby promised the plaintiff that the same should be delivered (in like order and well conditioned) to the plaintiff at , [the act of God, the queen's mies, fire, and all and every other dangers of the seas, rivers, and naviga- tion, of whatever nature and kind soever, excepted, (r)] he paying freight for th<- same, with primage and average accustomed; and although all conditions • d. nt have been performed, and all events have happened and periods of time have elapsed to entitle the plaintiff to a performance of the defendant's and to maintain this action, and the delivery of the said goods was ted, and no loss of or damage to the said goods arose by any of the l and dai o excepted, yet the defendant did not deliver the said ds to the plaintiff at aforesaid, but wholly lost the same [or did not. <},<■ taid goods to the plaintiff at aforesaid in the like good order ""'t ■" i" which llt'ii were so shipped, but in a wet and damaged state']. And the plaintiff claims £ . (s) •. Bradley v. Dunipace, 7 EL & N. 200. A like count, charging Lloyd v. General Iron Screw Collier Co. 3H.&C. I.] nd upon the terms of or loss by fire or robber v ; lb. 8.510; unless : other special exceptions the exceptions are introduced into the bill of .-_ introduced in the margin of lading. should also be («) [As to the damages, sec The Boston, 1 I emp. Lowell, 464 ; Sturgess v. Bissell, 46 N. Y. i to the ship-owners 46a ; Merchant Shipping Act, 1862, s. 67. e by fire oi loss by Declaration by consignee for not delivering ' 1 * Vict. c. 104, 1 503; but goods, Wilson v. London &c. Navigation • d against damage Co. L. It. l C. P. 61. [ DECLARATIONS ON CONTRACTS. CARRIERS. 109 5. Upon a Bill of Lading, by an Indorsee against the Master, for not delivering or for damaging the Cargo, (f) For that the defendant, by ;i bill of hilling made by him on the day of , a. d. , and delivered to A. B., acknowledged certain goods of the said A. B. to have been shipped in good order and well conditioned, on board a ship called , of which the defendant was the master, and thereby prom- ised the said A. B. that the said goods should be delivered (in the like good order and condition) at , [the act of God, the queen's enemies, lire, and all and every other dangers of the seas, rivers, and navigation, of whatever nature and kind soever, excepted, («)] unto the said A. B., or to his assign-, he or they paying freight for the same, with primage and average accustomed; and the said A. B. indorsed and delivered the said bill of lading to the plain- tiff', and the property in the said goods thereby passed to him. And although all conditions precedent have been performed, and all events have happened and periods of time have elapsed to entitle the plaintiff to a performance of (t) A bill of lading is now a negotiable Barber, L. R. 2 C. P. 38. Fraud on part of instrument transferable by indorsement, and sliipper. Valieri v. Bayland, L. R. l C. P. an action may be maintained upon it against 382.] An indorsee of a bill of lading may the master by the consignee of the goods, or also be sued upon it; he is subject to the by an indorsee to whom the property in the same liabilities in respect of the goods, as if goods therein mentioned shall pass, as if the the contract contained in the bill of lading had been made by himself. 18 & 19 Vict. c. 1 1 1 , ss. 1 , 2. [A bill of lading, in the usual form, is both a receipt and a promise ; and so far as it is a receipt, in a suit between the parties to it, being the shipper and the mas- ter who signed the bill for the delivery of the goods, it is open to the master to show that the quantity of goods received was less than that acknowledged in the bill. O'Brien r. Gilchrist, 34 Maine, 554; Dickerson v. Ledge, 12 Barb. 102; Grimes v. Harwood, 9 Barb. 447 ; Wolfe v. Myers, 3 Sandf. 7 ; Wayland v. Mosely, 5 Ala. 430; McTyer v. Steele, 26 Ala. 487 ; Bissel v. Price, 16 111. 408; Shepherd 17. Navlor, 5 Gray, 591 ; Sutton v. Kettell, 1 Sprague, 309; The J. W. Brown, l Biss, 76; Abbe v. Baton, 51 N. Y. 410. So it may be shown by parol that the goods, though admitted in the bill of lading to have been "in good order," were not in fact in good order when received. Ellis v. Willard, 5 Selden, 529; Barrett v. Rogers, 7 Mass. 297; Clark r. Barnwell, 12 How. (U. S.) 272. But, inasmuch as a "clear" bill of lading, that is to say, a bill of lading which is silent as to the place of stor- age, imports a contract that the goods are to be stored under deck, parol evidence of an agreement that they were to be stored on deck is inadmissible; The Delaware. 14 Wal- 579; The Wellington, 1 Biss. 279; Creesj v. Holly, 14 Wend. 26; nor can such a bill he contradicted as to the course desig- nated in it which the vessel is to take. Bar- ber v. Brace, 3 Conn. 9 ; May v. Babcock, I Ham. 334; Savward v. Stevens, 3 Gray, 97 ; Fitzhugh v. Wiman, 5 Selden, 559 ; Ellis v. Willard, 5 Selden, 529, 531 ; Barrett v. Rogers, 7 Mass. 297.] (u) See ante, 103, note (r). contract therein mentioned had been made with him ; 18 & 19 Vict. c. Ill, s. 1 ; [Short v. Simpson, L. R. 1 C. P. 248; Dracachi v. Anglo-Egyptian Co. L. R. 3 C. P 190; Coventry v. Gladstone, L. R. 6 Eq. 44;] alitor, before that statute; Howard v. Shep- herd, 9 C. B. 297 ; Thompson v. Dominy, 14 M. & W. 403. [Aside from the above stat- ute, the effect of an indorsement of a bill of lading is only to transfer the property in the g Is, and not the right upon the contract itself, and the indorsee cannot maintain an action on the bill itself in his own name, nor an action on the case for the non-delivery of the goods. Dows v. Cobb, 12 Barb. 310; Howard r. Shepherd, and Thompson r. Dom- iny, ubi supra; Lineker v. Ayeshford, 1 Cal. 75; Stanton v. Eager, 16 Pick. 474. | As against the master or person signing the bill of lading, such bill of lading, representing goods to have been shipped on board, is, in the hands of a consignee or indorsee for a valuable consideration without notice of non- shipment, conclusive evidence of such ship- ment, unless the master can show that the misrepresentation was caused without any default on his part, and wholly by the fraud of the shipper or the holder of the bill of lading, or some person under whom he claims; 18 & 19 Vict. c. Ill, S. 3; but the ship-owner is not liable even to an innocent third person bj the master signing bills of lading for goods which have never shipped on hoard; Grant v. Norway, 10 C. B. 665; Coleman v. Riches, 10 C. B. 104; or by his signing a second bill of lading for the same goods; Hubberstv /•. Ward. 8 Ex. 330. [As to fraudulently disposing of third »ill to one person after having raised money upon first two from another, Meyerstein r. n ,, IKTBAOTS. CHARTER-PARTIES. ,„1 to maintain this action, and the delivery of the ; . and no loss of or damage to the said goods y of the perils and dangers so excepted, yet the defendant did ..U to the plaintiff at aforesaid, [or did not deliver , i in the like good order and condition in which ■ the Bame were [damaged or] wholly lost to the jdain- Ai.d the plaintiff claims £ • » [CARREERS OF PASSENGERS, post, " Declarations in Tort."] CHARTEB PARTIES. — h does DOt DOW often occur that a charter-party is under seal, but where it j. . leclaration must be framed specially upon the deed; Atty v. Par- j s h, ] \ ,. 104; White v. Parkin, 12 East, 578; Fletcher v. Cillespie, - the plaintiff's claim arises out of a collateral agreement, - or implied, after the contract of charter-party; when the r-party is not under seal, and the plaintiff's claim is simply for freight or for demurrage, the indebitatus counts for freight or demurrage may |. g t. . \<7. 98, lit. '• Carriers." As to the parties to be made :: lants in actions on charter-parties, see in general Abbott i Chit PI. 6-8; Can- o. Jackson, 1 Ex. 382; Downman v. Williams, Q i;. | is. Where persons sign as agents for named charterers, they are e sued as principals; Deslandes v. Gregory, 29 L. J. Q. B. 93; when plaintiff may sue, he having signed the charter-party as agent for the ighter; Schmalz v. Avrey, 20 L. f. Q. B. 228; Humble v. Hunter, 12 Q. B. 810; when defendant liable to be sued on a charter-party signed by his ;ent for him, " pec procuration," he having received special instruc- bich he has exceeded; Smith v. M'Guire, 3 H. & N. 554; 27 L. J. Ex. 1. •. Wright, 13 East, 343; winter V. Trimmer, 1 Bl. Rep. 395; Dimech v. Cor- lett, 33 L. T. 21. 11 -J DECLABATIONS ON CONTRACTS. CHARTER-PARTIES. -part y (not under Seal) for not discharging the Cargo within the laying Days, and for Demurrage and Detention. • . ... and proceed as in Form 1 to the *, and then as And tli'' said ship afterwards sailed to R., and was there loaded |,v the 'in with tli.' agreed cargo, which she carried to H. aforesaid. vmance of all conditions precedent, as ante, 39, between the • the defendant did not discharge the said cargo at H. aforesaid within illowed by the said charter-party, but detained the said ship demurrage after she was ready to discharge (h) such cargo, and the defend- ant bad thereof, for the space of ten days over and above the said ten • i.i\~ allowed for discharge, and the defendant also detained the said ship for a j time after the expiration of the days allowed for loading, unloading, and whereby the plaintiff lost the use of his ship and the profits and incurred expenses in keeping and maintaining the said ship and the master and crew thereof, and in paying dock, harbor, and other dues, in of the said ship, (k) [Add a common count for demurrage, post, u Demurrag And the plaintiff claims £ . [Like counts. Brown v. Johnson, 10 M. & W. 331 ; Benson v. Blunt, 1 Q. B. B70; Jackson v. Galloway, 1 C. B. 280 ; Lennard v. Robinson, 5 El. & Bl. 125 inder '•. Howie, 1 H. & N. 152. '■■n before loading. Esposito v. Bowden, 4 El. & Bl. 963 ; Erich- p. Barkworth, •'! II. & N. 6.] . . i .-/ a ( 'harterer for not having an Agent at a Foreign Port, ac- cording to Agreement, amended at the Trial. Whitwill v. Scheer, 8 Ad. & E. 312. (I) I. By C >rt, rer against Ship-oivnerfor deviating from and abandoning tin 1 Voyage to the Port of Loading. That the plaintiff and the defendant agreed by charter-party that the de- ship. , then at , should with all convenient speed, having liberty to take an outward cargo for owner's benefit, sail to , or so near thereto as B he could safely get, and there load from the factors of the plaintiff — . which she should carry to , and there deliver on pay- ment of freight (certain perils and casualties in the said charter-party men- ■•'•• '1 '• ■ Kcepted); and the said ship was not prevented by any of the Baid perils and casualties from completing the said outward voyage, (m) and a ship is readv to dis- (k) See ante, 111, note (g). wn v. Johnson, 10 Bl & \V. (/) Where the vessel is consigned to the r;il the lav .lays <■ nience run- charterer's agents, and there is no clause period of the ship's arrival, stipulating that the ship is to be "free of me when Bhe gets to her commission," the agents arc, in general, en- Lindsoy t>. Janson, 4 H. titled to commission on the freight lithe '- •'• Ex. 815; and in the agents of the charterers compel, by detention "n or contract "Sundavs" of the ship's papers, payment of charges to are included, unless the which thev are not entitled, counts should K.-ll r. Andcr- be added "for money had and received, and Niemann v. Moss, money paid. '' •' '•■', B '-""'I (m) [It has been held that, in an action • ' ■ Blunt, I G. & I). 449. by the charterer against the ship-owner, the DECLARATIONS ON CONTRACTS. CHARTER-PARTIES. 113 all conditions were fulfilled, and all things happened, and all times elapsed, ne.vssai-y to entitle the plaintiff to have the said charter-party performed by the defendant on his part; yet the said ship did not with all convenient speed sail to aforesaid, or so near thereto as she could safely get, and the defendant caused the said slip to deviate from her said voyage, and abandon the said voyage. Like counts. Schilizzi v. Derry, 4 El. & Bl. 873 ; Pope v. Bavidge, 10 Ex.73. For delaying and deviation in the voyage to the port of landing. M' An- drew v. Adams, 1 Bing. N. C. 29 ; Porter v. Izat, 1 M. & W. 381. For refusing to proceed to port of ultimate destination according to orders. Pole v. Cetcovich, 9 C. B. N. S. 430. By charterer against ship-owner for not repaying freight paid in advance upon failure to deliver cargo. Charles v. Altin, 15 C. B. 46. Count by charterer against ship-owner on a warranty in the charter-parly that the ship was classed A\, at Lloyds. Routh v. Macmillan, 2 H. & C. 705.] 5. On a Charter-party, setting out the Charter in Terms, (n) For that a certain agreement or charter-party of affreightment was made between the plaintiff and defendant, which was and is in the words and figures following: [ Here set out the charter-party verbatim.'] And the plain- tiff says that the said person therein described as A. B. is the plaintiff, and the person therein described as C. D. is the defendant; and that all conditions [Sfc. averring performance of all conditions precedent, as ante, 39, and alleging breaches as in the preceding forms]. 6. On a Charter-party under Seal. For that by an indenture of charter-party, made between [Sfc. stating the parties to the deed}, and sealed with the defendant's seal, the defendant cove- nanted with the plaintiff that the ship should, with all convenient speed [$c. ; here set out the. material covenants and clauses in the charter-party upon the principle of the preceding forms, averring performance of conditions prece- dent, and alleging breaches according to the circumstances of the particular case]. 7. Form of Declaration upon a Charter-party by the Ship-owner against the Charterer for not loading the Ship upon her Home- ward Voyage. Freeman v. Taylor, 8 Bing. 124; 1 M. & Sc. 182. 8. Other Forms for not loading the agreed or a full and complete Cargo. Irving v. Clegg, 1 Bing. N. C. 53 ; Reid v. Hoskins, 4 El. & Bl. 979 ; Cuth- bert v. Cumming, 10 Ex. 809 ; Croockewit v. Fletcher, 1 H. & N. 893 ; Tar- rabochia v. Hickie, 1 H. & N. 183 ; Smith v. McGuire, 3 II. & N. 55 1. ' plaintiff need not negative the exceptions in 359 ; Browne v. Knill, 2 B. & B 395 • Crow the charter-party ; and if the defendant relies v. Talk, 8 Q. B. 467 471 ■ 1 Chittv p'l 311 1 .ipon such exceptions, he must plead that he (n) Where the terms of the charter-party Z L* J 1 " them - Whcccr »- Bav.d-e, 9 are very special, and it is difficult to dete/- i,x 668; but see as to pleading provisos mine what are conditions precedent to be and exceptions. Dawson v. Wrench, 3 Ex. performed bv the plaintiff, this form may be vol. n. 8 adopted with advantage. 114 DECLARATIONS OK CONTRACTS. CHECKS. Coals " in the Customary Manner, or in Regular Turn" .1 Mai] Steam Packet Co. 5 C. B.N. S. 492; Hudson v. . 18 G I'.. 218, 1". For not loading before the expiration of the Lay Days. Bowden, 5 EL & Bl. 714 ; Barwick v. Buba, 2 C. B. N. S. 563. 11. />*,/ tl rs of Ship against a Person to whom the Freighter the Is, and who promised to perform the Charter-party I > images in detaining the Ship beyond the Days of Demurrage, Freight, Primage, and Demurrage. J Cl.it. PI. 7th ed. 165 ; Benson v. Blunt, 1 G. & Dav. 449. 1l\ Against the Ship-owner for not carrying according to Charter- party. Vanghan v. Glenn, 5 M. & W. 577 ; 8 Dowl. 396. 1:'.. Against the Muster of a Ship by the Charterer for Deviation. .M. Andrew v. Adams, 1 Bing. N. C. 29. 14. On a Charter-party against Ship-owner for not performing Six Successive Voyages. Wheeler r. Bavidge, 9 Ex. 668 ; Pope v. Bavidge, 10 Ex. 73. 1"». .1 s ner for proceeding on the Voyage after his Vessel },,/,/ become in . note («)], who thereby became the bearer thereof, (s) lid check was duly presented for payment and was dishonored, of whi.-h the defendant had due notice, but did not pay the same. /. /: \gamst an Indorser, not being the Maker, (t) A. 1'... on SfC."], by his check, directed to certain bankers, to wit, Messrs. . required them to pay to the defendant or bearer [or "to the - in check], £ , and delivered the same to the defend- ant, and the defendant indorsed and delivered the said check to the plaintiff, nil-- the bearer and holder thereof [or transferred and delivered (t) the aaid check t" the plaintiff, who became the bearer thereof]. And the said duly presented for payment and was dishonored, of which the de- fendant had due notice, but did not pay the same, (u) [Add a count on the ation uikI upon acrounts stated, as ante, 35.] [4. Indorsee of Check against Indorser. (x) That < '. II.. on the day of , A. D. , by his check or order for (he payment of money, directed to Messieurs J. K. & Co., bankers, required them t'> pay to I>. M. or order, S , and the said L. M. indorsed the said check to the defendant, who indorsed the same [to N. O., who indorsed the same] to tin; plaintiff, and the said check was duly presented for payment, and was dishonored ; whereof the defendant had due notice, but did not pay the same. A Hie count. Keene v. Beard, 8 C. B. N. S. 372.] COMMISSION. See " Agents," ante, p. 38. COMPANY. See post, " Public Company." COPYHOLD FINES, (y) Commmrrmcnt as Form 1, ante, 33.] For fines payable by the defendant as tenant '•(' i ustomary tenements of the manor of (Hampstead) to the plain- tiff I of the said manor, for the admission of the defendant into the iry tenements. [Add a count on accounts stated, and conclude as ante, .Il.i I Bemp Co. v. Ballantine, 16 N. Bing. N. C. 267 ; ante, 116, note (r) ; 3 Kent, •'• (1 I 88, 104; 4 lb. 549, in note. [Sherman v. tlw action maintainable Comstock, 2 McLean, 19; Harker v. Ander- Sinafcrrer who does not indorse? son, 21 Wend. 372; True v. Thomas, 16 694. | A check on Maine, 36 ; Salter v. Burt, 20 Wend. 205.] i- a negotiable (x) [Although the check is drawn payable ument, and passes by indorsement, so "to bearer," it may be indorsed so as to t^' no' 1 ie the maker make the indorsee liable. Keene v. Beard, 8 l '" : Keener. C. B. N. S. 372.] : -l (»/) This form is given by Com. L. P. Act, nent and notice of dis- 1852, sch. B, 11. See a form, Pochin v. Dun- \ G'J4; 4 combe, 1 H. & N. 842. As to the fees due DECLARATIONS ON CONTRACTS. DEMURRAGE. 117 CORPORATION. See ante, 13, and post, " Public Company." CROPS. 1. Indebitatus Count for Crops sold to the Defendant, (z) Commencement as ante, 33.] For crops bargained and sold by the plain- tiff to the defendant. [ Add account stated, as ante, 34.] 2. By an outgoing against an incoming Tenant to recover the Amount of a Valuation of Crops, Tillages, $c. relinquished to the Incomer, (a) For that the plaintiff was possessed of and entitled to a certain a farmlands, and premises, upon which certain crops of the plaintiff were growing, and upon divers parts of which said farm, lands, and premises, the plaintiff had done, performed, and bestowed work and labor, and used and expended mate- rials in and about the preparing and making the same ready for tillage, of which said work and labor and materials the plaintiff had not derived the ben- efit, and thereupon it was agreed by and between the plaintiff and defendant that the plaintiff should relinquish and give up to him the defendant the said crops and the benefit of the said work and labor and materials, to be paid for by the defendant, according to a valuation thereof to be made by a certain person to be appointed by and on behalf of the plaintiff, and a certain other person to be appointed by and on behalf of the defendant, to value the same [here aver performance of conditions precedent as ante, 39, between the **] ; and the plaintiff saith, that afterwards the said growing crops, work, and labor, and materials were fairly valued by one J. D., a person for that purpose duly appointed by and on behalf of the plaintiff, and one W. P., a person for that purpose duly appointed by and on behalf of the defendant, (b) at a certain sum of money, yet the defendant has not paid to the plaintiff the said sum of money [add count as last form, and account stated]. DEMURRAGE, (c) Commencement as ante, 33.] For the demurrage of a ship of the plaintiff to the steward of a manor under the lands away qrowing crops arises either by the cus- clauses consolidation act, Cooper v. The Nor- torn' of the country, or bv express agreement lolk Ky. Co. 3 Ex. 546. When the stew- and in the absence of efther they vest in the ard is entitled to separate fees for separate landlord as part of the land. Caldecott v tenements, Evans v. Usscher, 16 M. & W. Smithies, 9 C. & P. 805. See post, " Land- 6,5 ; R. „ Eton ColL 8 Q. B. 526; R. v. lord and Tenant," for forms bv and against Everdon, 16L.J.Q. B.18. landlords and tenants -upon customs of (z) &ee form, &c Earl of Falmouth v. the country — agreements and covenants in 1 homas, 1 Cr. & M. 89, and next note ; May- leases. field v. Wadsley, 3 B. & C. 357. When a (6) If the defendant would not appoint a eon tract for crops is within the statute of valuer on his part, then aver that fact. See frauds, [1 Chitty Contr. (11th Am. ed.) 414 Thumell v. Balburnie. 2 M & W 786 • Latti- et seq. and notes.] more v. Garrard, 1 Ex. 809. (a) See form &c. Earl of Falmouth v. (c) This form is given by Com. Law P. Thomas, 1 Cr. & M 89. It seems the com- Act, 1852, sch. B, 14. See, In general, Abb. nontndeb count suffices Leeds v. Burrows, on Shipping; Chittv & Temp, on Carriers, I .; conclude with account stated, ante, in 1]. * DRAMA. ! , /', „„///, g for acting Unlicensed or Prohibited Plays are gulated by 6 & T Vict. c. 68, ss. 15 ^ 19. / . /-, Meg for infringing Dramatic Literary Property. Planch** r. Braham, 8 < • & I'. G8 ; Lee v. Simpson, 3 C. B. 871 ; Shepherd .nqueet, -•"■ 1- •'• ( ■ P- ] - 7 - 3 & 4 W. 4, c. 15, is the act for the pro- ipyright in dramatic literary property ; and 4 & 5 Vict. c. 45, s. 20, - musical compositions. See Russell v. Smith, 12 Q. B. 217 ; Russell v. C.R 836 : 1 latum v. Kean, 29 L, J. C. P. 20; [7 C. B. N. S. 268.] -. L ■ .it. •■ Copyright." < [ENTRY. Writ of Entry to recover the Possession of Land. In a plea of land, wherein the said P. P. demands against said D. D. one met situated in [describe it], whereof the said D. D., unjustly, and with- out judgment, disseised the said P. P., within twenty years now last past; and thereupon the said P. P. says that he was seised of the messuage afore- said, with the appurtenances in his demesne as of fee, and thereof the said 1>. I)., unjustly, and without judgment, disseised him, the said P. P., within aty years last past. Plea of General Issue. And now the said D. D. comes and defends his right when, S?c. and says that be did not disseise the said P. P. of the messuage aforesaid, as the said P. P. has above in his writ and declaration alleged against him; and of this he puts himself on the country.] • at the port of Bhipment or discharge of lading, by accepting the goods, may be r ih<- expiration of the time allowed for liable to be sued for demurrage at the port of the loading <>r nnloading of the cargo by the discharge ; Mollerv. Young, 5 El. & Bl. 755; i Kent, 203.1 If there be no Smith v. Sieveking, 5 El. & Bl. 589 ; Sanders tracl i" pay demurrage, a ship- v. Vanzeller, 4 Q. B. 260 ; Stindt v. Roberts, si cannot, "" ! '"t suffices, unless the Evans v. Eostcr, 1 B. &Ad."ll8; Moller v. in which case it must Young, 5 El. & Bl. 855; Granger v. Dacre, on. Where, by the bill of lad 12 M. & W. 432; and see form, ante, 112; as pressfy made- payable, to demurrage on railways, see Oxlade v. are deliverable " to the The North Eastern Ry. Co. 26 L. J. C. P. r bis assigns," he or they paying 129. [And as to demurrage generally, see, rr-party, which provides further, Gray v. Carr, L. It. 6 Q. B. 522, the consignee, or, Bince the 528,544; The Hvperion's Cargo, 2 Lowell ; 18 S 19 Vict c. ill, the indorsee of the bill Clendaniel v. Tuckerraan, 17 Barb. 184.] DECLARATIONS ON CONTRACTS. EXECUTORS. 119 EXCHANGE. 1. For not delivering Goods and paying Money on a Contract of Exchange, (c?) For that it was agreed by and between tbe plaintiff and defendant that the plaintiff should deliver to the defendant a horse of the plaintiff, in exchange (e) for a horse of the defendant to be delivered by the defendant to the plaintiff, and £ to be paid by the defendant to the plaintiff. And although the plaintiff delivered the said horse of the plaintiff to the defendant, and \Jtere aver performance of conditions precedent, as ante, 39, between the **], (f) yet the defendant hath not delivered to the plaintiff the said horse of the defendant, or paid to the plaintiff the said sum of money. [Add account stated, ante, 34.] 2. For Money payable on an Exchange of Goods. Commencement, ante, 33.] Foi money agreed by the defendant to be by him paid to the plaintiff, together with [describe goods~\ of the defendant, in exchange for goods of the plaintiff delivered by the plaintiff to the defendant. [Add account stated, as ante, 34.] EXECUTORS AND ADMINISTRATORS. Obs. — As to the parties to be made plaintiffs and defendants in actions by and against executors and administrators, see 1 Chit. PI. [22, 58; 2 Wins. Exrs. (7th Eng. ed.) pt. V. bk. I. c. i. p. 1864 et seq.~\ An action for the breach of a mere personal contract or covenant, not running with the land, made with one person who is dead, must be brought in the name of his executors or ad- ministrators. For the breach of a covenant relating to the realty, the heir or devisee must in general sue, unless the executor or administrator can show spe- cial damage to the personal estate of the testator or intestate. Executors and administrators cannot sue for the breach of a contract occasioning only per- sonal suffering to the testator or intestate and no damage to his estate, as a breach of promise of marriage. If a personal contract be made jointly with several persons, during the life of a survivor the action must be brought in his name, and at his death by his executors and administrators. If an exec- utor die after he has proved the will, his executor, or the executor of such ex- ecutor, is the party to sue on the contract of the original testator to recover money being assets of his estate ; Anderson v. Martindale, 1 East, 497; but in the case of the death of an administrator, his executor does not in gen- (d) Nature, &c. of this contract, [Benj. livered his goods. Upon an agreement to Sales (1st Am. ed.), § 2, note (e), and eases ; exchauge goods, lapse of time \yill not entitle Bigelow J. in Commonwealth v. Clark, 14 the person in whose favor there is a balance Gray, 372 ; Howard v. Harris, 8 Allen, 297 ; to bring an action for goods sold. The 1 Chitty Contr. (11th Am. ed.) 518.) See proper form of action is for not delivering forms, Parker v. Rawlings, 12 Moore, 529 ; the goods. Harrison v. Luke, 14 M. & \Y. 4 Bing. 280; Siboni r. Kirkman, 1 M. & W. 139; Bracegirdle v. Hincks, 9 Ex. 361. 423. In general the declaration must be (e) [Proof of an exchange will not support special; [Mitchell v. Gile, 12 N. H. 390; an averment of a sale of goods. Vail v. Vail . Strong, 10 Yt. 457 ; Loomis v. Wain- Strong, 10 Vt. 457 ; Mitchell v. Gile, 12 N. wright, 21 Vt. 520 ;] but if the defendant has H. 390.] delivered the goods the plaintiff was to re- (f) A contract of exchange is an entire ceive, the money he was to pay may be re- contract, and the plaintiff must aver a deliv- sovered on the common count for goods sold, ery or tender of all the goods to he delivered Sheldon ». Cox, 3 B. & C. 420; Atkinson v. bv him A delivery of part of the goods Smith, 14 M. & W. 695. But the special which the plaintiff was to deliver will not be Count would even then be advisable, omitting sufficient. Atkinson v. Smith, 14 M. & VY the allegation that defendant has not de- 139. ,,, . g s CONTRACTS. EXECUTORS. i bate of tin- intestate, but an administrator de bonis non ted and be made plaintiff, tion and title of executors and administrator- vest in them from ,tLe time of the death of the testator or intestate ; Woolley , Ud. 744; W'elehman p. Sturgis, 13 Q. J'». 552; Foster v. | & \\ . 226; Bodger v. Arch, 10 Ex. 333; 24 L. J. Ex. 19; Mass. 353; Lawrence v. . "Wright , 23 Pick. 128;] an ld action before probate; [Strong v. Perkins, 3 \ H ;. H ; ., bins - Hank. 12 Met. 421; Gay p. Minot, 3 Cush. 352: . S N. II. HI;] but an administrator cannot do so until - of administration. [Woolley p. Clark, supra;"] Stallwood, 5 M. & G. 760; 1 D. & L. 24; as to the effect & 21 Vict C. 77. s. 22. [But an administrator may have ss or tmver for goods of the intestate taken before inted. When the wrong-doer has sold the property taken, the ad- ministrator may waive the tort and recover in contract for money had and re- ived. Colt J. in Batch p. Proctor, 102 Mass. 353. By the law of 18 laid down in Alvord p. Marsh. 12 Allen. 603, the letters tration. by operation of law, make valid all acts of the admin- tratorin settlement of the estate from the time of the death. They he- me bi relation lawful acts of administration for which he must account. ( ■ .1. in Hatch p. Proctor, 102 Mass. 354. In Missouri an executor has authority until be has qualified; although if he intermeddles and nth qualifies, his letters will relate back and cover his former . Green, 47 Mi -sou. 500.] All the executors named in the will must ne made plaintiffs, though some of them be within the age • nteen years, or have not proved, unless they have actually dis- claimed and renounced probate in the ecclesiastical court; 1 Saund. 291 i; v. Spencer, 3 B. & Aid. 360; Venables v. East India Co. 2 Ex. Muni ''• S I T. K. 565; Hensloe's case, 9 Co. Pep. 37 a; Pem- Chapman, 1 EL & 151. 210, per BramweU B.; [2 Wins. Exrs. (7th Eng. ed.) pt. V. bk. I. c. i. p. 1867 et seq.; 1 Chitty PI. 22;] but the non- joinder of another co-executor as plaintiff can only, it seems, be taken ad- vantage of by plea in abatement. 1 Saund. 291 u k; Tuckey v. Hawkins, ; ( . B. 655: Com. L. Pr. Act, 1852, s. 36. The character in which executors or administrators are stated to sue or be sued is admitted unless specially lied. PL K. Tr. T. 1853, r. 5. As to the description of executors and ad- ministrators in the writ, ante, 3, Obs. Executors and administrators, suing in righl of their testator or intestate, are liable for costs to the defendant unless the court or a judge otherwise order. 3 & 4 W. 4, c. 42, s. 31; Lysons v. Bai . 2 Dowl. 807; observed upon in Ashton v. Poynter, 3 Dowl. 465 ; 1 I M. & I:. 738; I.akinc. Massie, 4 Dowl. 239; Jobson v. Foster, 1 B. & Ad. - •• . Lawson, lb. 893. to contracts bind not only themselves but their personal representatives, though not named in the contract; [2 Wins. Exrs. (7th Eng. ed.) pt. IV. bk. II. c. i. i ! . p. 17_'t;] executors and administrators may therefore, as ral rule, be sued as Buch on all contracts of the testator or intestate, upon which the latter would be liable, if living, whether the breach hap- il in their lifetime or after their decease; but executors cannot be sued or bre ches, after the testator's death, of contracts requiring the personal performance, skill, or taste of the deceased; per I'arke B.; Siboni v. Kirk- man, l M. \ W. H8, 128; [2 WmB. Exrs. (7th Eng. ed.) pt. IV. bk. II. c. i. i I, P. 1724 i . Wentworth v. Cock, 10 Ad. & El. 45; Robinson p. Davi- 174;] as a contract to marry; Chamberlain p. Williamson, •-' M - i Wms. Exrs. (7th Eng. ed.) pt. II. bk. III. c. i. § 1, p. 800 et 1 itl I ontr. (11th Am. ed.) 792; but see Shuler v. Millspaps, 71 N. 1 to write a book ; Marshall p. Broadhurst, 1 Cr. & J. 405; B ■ c. Burfield, 2 Stra. 1266; or for other personal services. u Humphreys, 2 M. & G. 853; Campanari p. Woodburn, 15 C. B. 500. ^ "'" "' -'-ver:il joint contractors die, his executor or administrator is dis- frorn liability at law, and the survivors only can be sued ; if the con- . or joint and several, the executor or administrator of the 1 contra, tor may be Bued, but not jointly with the survivor, because DECLARATIONS ON CONTRACTS. EXECUTORS. 121 Obs. one is chargeable de bonis testatoris, the other de bonis propriis. See post •• Partners;" I (Int. PI. •• Exrs.;" Can].. 171; Hall p. Hubfarn, 2 Lev. 228; Richards v. Heather, l 15. 8c AM. 29; ('aider v. Rutherford, ■'; Br. & 15. 802: Prior v. Hembrow, 8 M. & W. 878. All the executors named in the will should be sued, but if one hath not proved nor administered, he may be omitted. 2 Wms. Exrs. 1 7 r> < > ; Com. Dig. Abatement, P. i<»; Ryalls v. BramalL l Ex. 784. A person who, as exec- utor, intermeddles with (Edward c. Harben, 2 T. R. 587) or takes posse-ion of or deals with goods of a. person deceased, becomes an executor de son tort, and may he sued as though he were lawful executor; Mevrick v. Ander- son, 14 Q. 15. 749; [l Wms. Exrs. (7th Eng. ed.) pt. I. bk.lll. c. v. p. 2.07, etseq., 265 et seq. ; Lee v. Chase, 58 Maine, 482; 1 Ohittv PI. 59j] though the person died intestate, or there he a lawful executor; [1 Wms. Exrs. (7th Eng. ed.) 261, and note (//):] and he may he joined as defendant with a law- ful executor, though not with a lawful administrator. 1 Saund. 265, note (2); [1 Wms. Exrs. (7th Am. ed.) 266J What acts are suffieient to charge a de- fendant as executor de sou tort. Serle v. Waterworth, 4 M. & W. 'j ; Seallv v. Powis. 1 liar. & W. 2; Paull v. Simpson, 9 Q. B. 365 ; [1 Wms. Exrs. (7th Eng. .d.) pt. 1. bk. III. c. v. p. 257 elseq. ■ Leach v. Pillsbury, 15 X. II. 13!): Willard r. Hammond, 21 X. H. 885; Haskins v. Hawkes, 108 Mass. 381.] A person ordering the funeral of the deceased, or selling goods or re- ceiving debts sufficienl only to pay for the funeral expenses, mil not render himself executor de son tort. Harrison v. Rowley, 4 Ves. jr. 216; Camden V. Fletcher, 4 M. & W. 378; Samuel v. Morris, 6 C. & P. 620; Hobby v. Ruel, I Car. & K. 716; [1 Wms. Exrs. (7th Eng. ed.) pt. I. bk. III. c. v. p. 261 et seq. A person who deals with the goods of a testator as agent of exec- utors who afterwards prove the will, cannot be treated as executor de son tort. Sykes v. Sykes, L.B. 5 C. P.113: 1 Wins. Lxrs. (7thEng. ed.)264. So it has been held with regard to the acts of a person as agent for one who after- wards becomes administrator. Hill v. Curtis, L. R. 1 Eq. 90; but see Par- sons r. Mayesden, 1 Freem. 152. In an action by a creditor the execuor de ^ son tort is to be deemed executor generally. 1 Wms. Exrs. (7th Eng. ed.) 265.] Executors are only liable to the extent of "the assets which come to their hands. An executor is not liable personally for a debt of his testator, except upon his promise in writing signed by him or his agent, and founded upon a new and sufficient consideration. 29 Car. 2, c. 3, s. 4 ; 1 Chit. Contr. r(llth Am. ed.) 371,372.] LV ' As to the remedy against " Heirs and Devisees," see those titles, post. By or against Husband and Wife, executrix or administratrix, ante, 7, 13, and post, " Husband and Wife." 1 Common Count by an Executor or Administrator on Causes of Action accruing to the Deceased, with an Account stated with the Plaintiff as Executor. Commencement as ante, 13, Form 23.] For money payable by the defend- ant to the said E. F. in his lifetime, for goods sold and delivered by the said E. F. to the defendant, and for [insert any other debts, as ante, 33, Form 1, taking care to write throughout the name of the deceased, " E. F." for " the plaintiff." If it is probable that a promise to the plaintiff can be proved, here insert the next form as a second count ; (g) if not, proceed thus:] And also for money payable by the defendant to the plaintiff as executor [or "as adminis- trator "] as aforesaid, for money found to be due from the defendant to the plaintiff, as executor [or "administrator"] as aforesaid, on accounts stated be- tween the plaintiff, as (h) executor [or "as administrator"] as aforesaid, and the defendant, And the plaintiff, as executor as aforesaid, claims £ . (i) !?! 5? a " tr ' r '3, note (/»). ,-. Watts, 6 East, 405; Henshall v. Roberts, (h) 1 be word as is here necessary, to 5 Last. 150; Ferguson v. Mitchell, 2 Cr M. ■now that the plaintiffdaims the debt strictly & K. G87. m his representative character. See Cowefi (i) Profert of the will or letters of admin- 122 DECLARATIONS ON CONTBACTS. EXECUTORS. _ ; r Count, alleging the Debt to be payable to the Plaintiff for ■it'cu moving from the Deceased, (k) the plaintiff also bum the defendant for money payable by the defend- er plaintiff, aa executor as aforesaid, for goods sold and delivered by the laid E. F. in hia lifetime to the defendant [stating any other debts in the :,,; eted in tin- last form], and for money found to be due from ,)„ , lt to the plaintiff, as executor as aforesaid, upon accounts stated the plaintiff, aa (&) executor as aforesaid, and the defendant. And the plaintiff, aa executor as aforesaid, claims £ . Administrator on Causes of Action accruing to him after the Death. (7) t as ante, 13 or 7, Forms 23 or 1.] For money payable by the defendant to the plaintiff, as executor [or " as administrator "] as afore- :■ jold and delivered by the plaintiff, as executor [or "as adminis- aa aforesaid, to the defendant, and for [insert anrj other cause of action, p. 33, taking care to write throughout the words "plaintiff, as executor rid," or " plaintiff, as administrator as aforesaid," for " plaintiff "J. And the plaintiff, aa executor aa aforesaid, claims <£ . 4. By an /:'.>■ ctUorfor Use and Occupation, to recover a Quarter's Rent, where the Testator died during the currency of the Quarter. For money payable by the defendant to the plaintiff, as executor as afore- . for the defendant's use, partly in the lifetime of the said E. F. and partly his death, of a messuage, lands, and premises, with the appurtenances, of the said K. F. in hia lifetime, and of the plaintiff, as executor as aforesaid, after the death executor as aforesaid, after the death of the said E. F. Utration is nol now necessary. Com. L. P. Cr. & J. 403; or money paid; Ord v. Fen- of the causes of action wick, 3 East, 104; or had and received; ■ >r :t may be inserted here, and Heath v. Chilton, supra; or on an account iith those in the count in the text. stated with him in that character; Dowbig- I When to insert this count, gin v. Harrison, 9 B. & C. 666; Jobson v. '/')• Forster, 1 B. & Ad. 6; perhaps also for ■ l2I,note(A).] money lent; Webster v. Spencer, 3 B. & Ad or administrator may de- Aid. 360; Richardson v. Griffin, 2 Chit. R. /. en a contract made with him 325. See, further, Siboni v. Kirkman, 2 M. & whenever the sum claimed W.42.S; 2 Saund. 117 d. [But the executor issets; Heath v. or administrator may, in such cases, sue as i \V. 633; Cowel] v. Watts, such, or not, at his option. 1 Wins. Exrs. ipinall o. Wake, io Bing. (7th Eng. ed.) pt. II. bk. III. c. ii. p. 878 Num. ,n, 4 M. & Be. 417; et seq. ; 2 lb. 1870 et seq. ; Moulton v. Wen- uhton, 3 B. & Aid. 101 ; [lChittv dell, 37 X. II. 406; 1 Chitty Contr. (11th . ed.) 376 a seq ; Haskell v. Am. ed.) 376 ; Sherburne v. Goodwin, 44 N. sold by 11 274, 275; Haskell v. Brown, 44 Vt. 579. to the testator; Cowel] The plaintiff cannot join, in the same dec- nired by the taxation, a demand, as executor or admin- "ii testator's business, istrator, with another which accrued in his "-: Aspinall v. own right; and such misjoinder is a defect for clothes ord, red of in substance. It is, however, now settled, shed and delivered by the after much contrariety of cases, that if the Humfreyg, 2 M. & (i. money recovered on each of the counts will [Duff v. Gard- he assets, the counts may be joined in the ration. 2 Wins. Exrs. 1873 etseq.; 1 lb. 881. | work dour; same declaration. 2 Wins. Exrs. (7th Eng. 1 '■'• 190; or ma- ed.) 1872, ir rovided ; Mar-hall v. Broadhurst, l DECLARATIONS ON CONTRACTS. EXECUTORS. 123 respectively ; and for [fyc. ; add account stated ivith plaintiff as executor, and conclusion as in Form 11. 5. By Executors to recover the Value of Work, £c. done partly by the Testator, and finished by the Executors after his Death, in pursuance of Defendant's Contract with him. (m) ^ Commencement as ante, 13, Form 23.] For that, in the lifetime of the said E. F., it was mutually agreed by and between the said E. F. and the defend- ant that the said E. F. should do for the defendant certain works in and aboul the taking down, altering, and repairing certain houses, buildings, and prem- ises, and should provide materials for the same works, and should be paid by the defendant for the same works and materials the reasonable prices and value thereof when the said works should be completed; and the plaintiffs say that the said E. F. entered upon and proceeded with the said works, and found and provided materials for the same, and in part performed the same, and that the said E. F. died before the same works were completed, and thereupon the plaintiffs, as executors as aforesaid, and in performance of the said agreement, proceeded with and performed the remainder of the said works, and found and provided certain materials of the plaintiffs, as executors as aforesaid, for the same ; and the said works so agreed to be done were completed by the plain- tiffs, as executors as aforesaid [add accounts stated with plaintiffs']. And the plaintiffs, as executors as aforesaid, claim £ . 6. Against an Administrator for not receiving Goods sold to the Intes- tate. Wentworth v. Cock, 10 Ad. & E. 42. See, also, Campanari v. Woodburn, 15 C. B. 400. 7. Common Count against an Executor or Administrator alleging a Debt from the Testator, with an Account stated by the Defendant. Commencement as ante, 13, 8, Forms 25, 6.] For money payable by the said E. F. in his lifetime to the plaintiff for goods sold and delivered by the plaintiff to the said E. F., and for {insert any other cause of action, as ante, 33, Form 1, writing the name of the deceased, " E. F.," for " the defendant." If it is probable that a promise from the defendant as executor, fyc. can be proved, here insert the next form as a second count, see ante, 53, note ( p) ; if not, pro- ceed thus :] And for money payable by the defendant, as executor as afore- said, to the plaintiff, for money found to be due from the defendant, as execu- tor as aforesaid, to the plaintiff, upon accounts stated between the plaintiff and the defendant, as executor as aforesaid. And the plaintiff claims £ . 8. Second Count laying the Debt by the Executor on a Consideration moving from the Deceased, (w) And also for money payable by the defendant, as executor as aforesaid, to T ( si Se n M 1 a '' s,,: ! 11 ''■ Broadhurst, 1 Cr. & Shew, 3 M. & W. 350; an). DECLARATIONS INTBACTS. EXECUTORS. [lu . Ill;l ; : and delivered by the plaintiff to the said E. F. in >... if,; case of action against the defendant as ■• - / after the death, insert the next form]. m Executor on a Caust Eh eutor had retained by Agreement with the Legatee. AY hit » -house v. Apperley, 1 Car. & K. 642. (p) (0) An executor is liable, and may be iued for money paid for his use. Ashb At . 7 B. \ C. 144; Prior v. Hem - MC ■ W. B73 ( >r on an ac- tated by the defendant as 1 tecutor tin.' moneys due from the testator; and counts apon Bucb causes of action may ]•<■ joined with counts alleging a debt from the testator in hi> lifetime. I'm an execu- tor i* not liable in In- representative char- .'1- sold to ( ,r work done for him; Cornet >•. Shew, 3 M. & W. 350 (ex- i, for tin- i' -'aior's funeral) ; or m to or had ami received !>v him as Waite v. < inle, 2 I). & L. 925, ■saund. 117 ■. Newman, or for i; ■ r money for- ■11 o. Harpur. 4 Ex. 77.') ; el occupation by him after the - death : Atkins >\ Humphrey, 'i < B I >i . Wigley <■. Ashton, 2 Ii. & Aid. 101 ; for bta he i- ,/ liable, •si charging him in his rep- tpacity, will he treated ascharg- >nally, and would create a mis- diT if joined with counts properly charg- l.ini •;> Bignel] v. Harpur, A*hby, 7 15. & C. 444; '• ' Ex. 49 ; [2 Wms. IV. !,k. 11. c. ii. p. 1771 i Ironan a. < lotting 1 I- I'. Act, 1852, b ii, onlj • the ioiuder of differenl causes of Hi ihey are against m ami in tie \ .., w 1,,.,, an ■ for the fum ra] of the I.. 349 note ; Corner v. Shew, 8 M. & W. 350 ; an infant widow is liable on her contract for the funeral of her insolvent husband. Chappie v. Cooper, 13 M. & W. 252. (p) In general an executor cannot be sued at law by a legatee for recovery of a legacv ; Deeks v. Strutt, 5 T. R. 690; Jones v. Tan- ner, 7 B. & C. 542 ; [see Kent v. Somervell, 7 Gill & J. 458; Sutton v. Craine, 10 Gill & J. 458 ; Beecker v. Beecker, 7 John. 99 ; Van Orden v. Van Orden, 10 John. 30 ; Pelletreau v. Hathbone, 18 John. 428 ; 2 Wms. Exrs. (7th Eng. ed.) pt. V. bk. I. c. i. p. 1931 et seq. ; 1 Chitty PI. 113;] unless he has admitted the receipt of it, and that he retains it to the use of the legatee, in which case he is personally lia- ble for money had and received to the legatee's use ; Hart v. Minors, 2 Cr. & M. 700 ; Waite v. Gale, 2 D. & L. 925 ; Gregory v. Harman, 1 M. & P. 209 ; Wasney v. Earnshaw, 4 Tyr. 806 ; or upon an account stated ; Topham v. Moieeral't, 8 El. & Bl. 972; Braithwaite v. Skinner, 5 M. & W. 513. | In Massachusetts, every Legatee may recover his legacy in an action at common law; Genl. Sts. c. 97, § 22; Miles r. Bovden, 3 Pick. 213; Prescott v. Parker, 14 Mass. 431 ; Cowdin r. Perry, 11 503 ; Jones v. Richardson, 5 Met. 247 ; ColweU v. Alger, 5 Gray, 67 (specific leg- acy) ; Brooks i;. Lynde, 7 Allen, 64; Whit- ing v. Cook, 8 Allen, 63 ; Kent v. Dunham, 106 Mass. 586 ; Prescott v. Morse, 62 Maine, 447 ; 1 Chitty PI. 113, note; after a demand upon the executor. Brooks v. Lvnde, 7 Al- len, 64, 68; Miles v. Boyden, 3 Pick. 213, 218; Prescott r. Parker, 14 Mass. 431. It seems the action will not lie sooner than one DECLARATIONS ON CONTRACTS. FACTOR. 125 12. Against Executors for Use and Occupation of Premises held by them as Executors under a Demise to the Testator. Atkins v. Humphrey, 2 C. B. G54 ; 3 D. & L. 612; ante, 124, note (o). See other forms by and against executors for recovery of rent, &c. under leases, post, " Landlord and Tenant." 13. By Husband and Wife, Administratrix or Executrix. See ante, 7, 13 ; and post, " Husband and Wife." EXTORTION. Obs. — See forms of declarations against the sheriff for extortion and law, Holmes v. Sparkes, 12 C. B. 242; Scarfe v. Halifax, 7 M. & W. 288; Evans v. Moseley, 2 Cr. & M. 490 ; 2 Chit. Plead. 7th ed. 358; Martin v. Bell, 6 M. & S. 220; Ashby v. Harris, 2 M. & W. 673; S. C. 5 Dowl. 742; Usher v. Walters, 4 Q. B. 553 ; and see 1 Vict. c. 55, which regulates sheriff's fees on an execution; and Davies v. Griffiths, 4 M. & W. 377; Slater v. Hawes, 7 M. & W. 413; Curlewis v. Bird, 1 Dowl. N. S. 752; Masters v. Lowther, 9 C. B. 948; 1 Chit, Arch. Pr. 598. The remedy against a sheriff for extortion under the stat. 28 Eliz. c. 4, is not repealed by 1 Vict. c. 55. Pilkington v. Cook, 1G M. & W. 615. The declaration should state what ought to be taken, and what was the excess. Wrightup v. Greenacre, 10 Q. B. 1 ; Berton v. Laurence, 5 Ex. 816; [Livermore v. Boswell, 4 Mass. 437 ; Moore v. Boswell, 5 Mass. 306.] If an officer of any of the courts at Westminster be guilty of extortion, or of taking an improper fee, he is liable to an action. Figgins v. Wyllie, 2 Bl. II. 1187; Worgate y. Knatchbull, 2 T. R. 148; Scarfe v. Halifax, 7 M. & W. 288. Money paid under duress or extortion may in some cases be recovered back as money had and received. Ante, 29. FACTOR. See "Agents," " Brokers." See form of declaration against a factor for selling contrary to orders, Smart v. Sandars, 3 C. B. 380 ; 5 C. B. 895. Plea, that the sale was made after notice, to reimburse defendant for advances, held no defence. lb. year from the appointment of the executor, v. Morse, 4 Met. 523. So in New Hampshire. Brooks v. Lynde, 7 Allen, 64, 67 ; Howland Perrv v. Hale, 44 N. H. 363 ; Piper v. Ben- V. Howland, 11 Gray, 469, 476; Pollard v. nett.,'2 N. II. 439. But in this case, it is not Pollard, 1 Allen, 490, 491. But there is no necessary to a recovery to prove a demand limit of time within which the action may he of the legacy, nor a promise on the part of brought. Kent v. Dunham, 106 Mass. 586, the defendant to pay. Pickering v. Picker- 591. In Connecticut it has been decided ing, 6 N. H. 120.] See a form against an that an action will lie for a legacy against an executor on a promise by him to pay a leg- executor, upon a promise implied from his acy in consideration of forbearance, post. having assets. Knapp v. Hanford, 6 Conn. The legatee of a speci/fc chattel may recovei 170. So in New Hampshire. Pickering v. it from the executor after the latter has as Pickering, 6 N. II. 120 ; Piper v. Piper, 2 N. sented to the bequest. Doe v. Guy, 3 East, H. 439. In Massachusetts an action lies for 120. A demand not exceeding ".£50," a legacy against a devisee, or terre-tenant, of which is the amount or part of the amount land charged with the payment of it. Swa- of a distributive share under an intestacy or sey v. Little, 7 Pick. 296; Felch v. Taylor, of any legacy under a will, mav be sued' for 13 Pick. 133 ; Adams v. Adams, 14 Allen, in the countv court. 9 & 10 Vict. c. 95, s. 65; Sheldon v. Purple, 15 Pick. 528; Taft 65; 13 & 14 Vict. c. 61. - DECLARATIONS OH CONTRACTS. FEIGNED ISSUE. FARRIER. ■ ,• [or I ' vry Surgeon] for not using due Care, £c. ; n kit 7 tht Plaintiff' 8 Horse, which was lame. (5-) I ii .ration that the plaintiff employed the defendant, as and . farrier [or veterinary Burgeon], to treat and endeavor to cure a horse plaintiff, then laboring under [lameness], for reward to the defendant, the defendant promised the plaintiff to use due and proper care and skill in ttine and endeavoring to cure the said horse, (r) ; yet the defendant did doe or proper care or .skill in treating and endeavoring to cure the -v. ignorantly, and unskilfully treated it, (s) that by me thereof it became and was [more lame and wholly] incurable, and of doe to the plaintiff]. FEIGNED ISSUE. (0 1. In the : to wit. Whereas A. B. affirms, and C. D. denies, that the ijnestion to be tried, xohich may be as follows :~\ certain goods and day of , a. d. , (x) the And the chaU Dtioned [4rc], were on the - and chattels of him the said A. (q - - land. 312, note (2) ; Chit. jr. ■• Bailment." A smith or far- ad may be sued for refusing to being tendered satisfaction, rs, 2 Show. 327; Lane v. ii, 12 Mo I. -4-1, per Holt C. J. A far- rier mat recover bis bill on the common r work and materials. Clarke v. Mumford, 3 Camp. 37 j Meeke v. Oxlade, 1 (r) Th are the terms of the contract h from the retainer; but, in- ■l\ of any contract, the law casta d Earners, carriers. Burgeons, attor- ■ and -kill in their may, therefore, be sued in tort for a breach of such duty. See Legge • tucker, 1 H. & N. 500. (* i to specify the nature (I) Thu form Is nearly in the terms of d in the schedule to the 8 & 9 Vict. ibstituted fur the old . alleging a wager be- n the plaintiff and defendant ; but the form in. iv still be adopted. Luard v. S D. & L. 815. It is irticular in seeing that by ' n " of ihequi ! admissions which are nol intended. In i Q. B. 762, where a ques- tion creditor and as- t a banknipl as being "whether the i execution was valid id fiat," it was In Id that the if dispute the bankruptcy. l5 '" ille,3 M. X G.40 ; 3 Scott N. It. 346, whire the question was "whether B. as against the said C. D. the plaintiffs were entitled to the goods seized as against and free from the defendant's ex- ecution, and whether they were liable to be seized as against the plaintiffs," it was held that the plaintiffs, claiming as assignees un- der the bankruptcy of a judgment debtor, were bound to prove the trading, petitioning creditor's debt, and act of bankruptcy, though no notice had been given to dispute them. See form to try a disputed title to goods under the interpleader act; Morewood v. Wilkes, 6 C. & P. 144. See, as to the construc- tion of the form of feigned issues, Bosan- quet v. Woodford, 5 Q. B. 310; Cummings v. Ince, 11 Q. B. 112 ; Gadsden v. Barrow, 9 Ex. 514; 2.3 L. J. Ex. 134. Where the is- sue was whether goods at the time of the seizure by the sheriff under aji. fa. were the goods of the plaintiff (a claimant under a valid bill of sale to him) : held, that the de- fendant, the execution creditor, might de- feat the plaintiff's title by proving a prior bill of sale to a third person. Gadsden v. Bar- row, supra ; but see Carne v. Brice, 7 M. & W. 183; Belcher r. Patten, 6 C. B. 608; Bopcrs v. Kenney, 9 Q. B. 592. («) The rule or order directing the issue, generally specifies where the issue is to be tried. [Reasonable order. Tanner v. The European Bank, L. R. 1 Ex. 261.] (x) This should be the date of the seizure by the sheriff; the delivery of a writ of/I. fa. to the sheriff does not now bind goods as against a bona fide purchaser for a valuable consideration without notice of the writ. 19 & 20 Vict. c. 97, s. 1 ; Williams v. Smith, 4 H. & N. 559 ; Withers v. Parker, 4 H. & N. 524. DECLARATIONS ON CONTRACTS. FEIGNED ISSUE. 127 court of is desirous of ascertaining the truth by the verdict of a jury Now let a jury [#c] [2. Order for Issues. " Inasmuch as it does not satisfactorily appear to the court that any agree- ment has been made by and between the parties, as to the amount of such damages and compensation \_in dispute'], to the end that the same may be sat- isfactorily ascertained, it is further ordered, adjudged, and decreed, that an :-mi lifetime and during all the time alleged in said bill of complaint, viz: [state rime] was seised in his demesne as of fee, and held in common and undivided with Baid I). P. a certain other parcel of real estate [describe it] ; the Bhare <>r proportion of said G. H. was [state share] ; and the share or pro- portion of Baid D. P. was [state share] during the time aforesaid. And this i .1. II. is ready to verify. By his solicitors. And now the said D. P. comes and denies that the said G. H. held the [escribed premises in common and undivided in manner and form as above averred by said J. H. And of this he puts himself on the country. By his solicitors. And the plaintiff doth the like. By his solicitors. March — . I860. now it is ordered that the above issues be duly signed by the solicitors ; i«- respective parties, and that the same stand for trial before a jury at the liar of the Bupreme judicial court, at the term thereof next to be holden within .•m. I for the county of E . G. T. B., J. S. J. C. • '. /--"■ 'hrvhavit vel non, Modem English Form. art being desirous of having the following question of fact de- ckied by a jury, thai is to say, "whether the paper writing dated [# be is on the proponent of the will.] controlled, and Leaving the burden still with (.r 2 ) [As to tliis issue the burden of proof the proponent. j is on the proponent of the will, notwithstand- (.c 1 ) [As to this issue the burden of proof ing the presumption in favor of sanity, which is on the contestant.] VOL. II. 9 DECLARATIONS ON CONTRACTS. FIXTURES. A the said K. M. P itrix, comes and -ays that said T. P., deceased, : to make and execute said paper writing propounded for pro- - last will and testament [or as and for a codicil to his last undue and unlawful influence. And of this she puts By her attorney, J. C. P. 8. 1'. G.. appellant, doth the like. By her attorney, S. B. L, Jr.] ♦ FISHERY. - ante, 33.] For the defendant's use by the plaintiff's per- of the plaintiff, (y) FIXTURES. — A- •" ili<- law upon tin.- subject of fixtures, and contracts respecting them, \ 1". on Fixtures; [1 Chitty Contr. (11th Am. ed.) 489 et seq., :. and ri"t>' ( /'), and cases; 495 et seq. and notes and cases cited; Wad- lei Janvrin, il N. H. 503; Voorhies v. McGinnis, 46 Barb. 243; •v o. Felt, 65 Barb. 22<» ; Quinby v. Manhattan Cloth &c. Co. 9 i . F. Green, 260; Stockwell v. Campbell, 39 Conn. 362; Fifield D.Maine Qtral &c. IF R. Co. 62 Maine, 77,80, and cases cited ; Alvord Carriage I I ison, 36 Conn. 86; Cromie v. Hoover, 40 Ind. 49; Allen v. Ken- i" Ind. 142 :] Woodfall's Land. & Ten. ; and see the authorities collected in Walmsley v. Milne, 7 C. B. N. S. 115. It seems a written con- tract is nol necessary under the statute of frauds. Hallen o. Kunder, 1 Cr., M. Be EL 266, 278; Horsfall v. Kay, 17 L.J. Ex. 266; Hodgson v. Johnson, Bl. & EL 685 ; Strong v. Doyle, 110 Mass. 92, 93 ; Bostwick v. Leach, 3 .., 476.] The price of fixtures cannot be recovered upon a count for sold; Lee p. Risdon, 7 Taunt. 188; Pitt v. Shew, 4 B. & Aid. 206; un- less they have been severed before the sale. Dalton v. Whittem. 3 Q. B. 961 ; W2 :• . Walters, 1 G C. B. 637. The acceptance of a demise of a house con- taining fixtures dm-s not raise an implied contract to pay for such fixtures. 1 . Harris, 5 M. & G. 578. Where a tenant agreed with his landlord that he should forbear removing his fixtures at the end of his tenancy, on condi- tion that the landlord should take them at a valuation, and the valuation was made the day after the tenant quitted, it was held the tenant might recover on the common count. Hallen v. Kunder, 1 Cr., M. & K. 266. In order to • an admission of part of the plaintiff's case, it may sometimes be advisa- ble to declare specially. In such case the declaration should state that the plaintiff was possessed of, and entitled to remove or sell, certain fixtures and et: . being in a certain house, and that it was agreed between plaintiff and defendant that plaintiff Bhould bargain, sell, and relinquish said fixtures to defendant, and that he should buy same at a valuation to be made, &c. showing agreement fur valuation, the valuation that plaintiff relinquished, . and non-payment of price. See Form 2, ante, 117. See form by outgoing -! incoming tenant for fixtures left on premises by license of landlord ; H aderson, 17 Q. B. 574. See other forms relating to fixtures as between landlord and tenant, post, "Landlord and Tenant." u ante, 33, Form 1.] For fixtures and effects bargained l up by the plaintiff to the defendant [add account stated. ion v. V. 1 Moore, 73]. (y) This form i- given by the C. L. P. prant license to fish, Mills v. Mayor of Col- • IF I". See Holford v. Bai- Chester, L. R. 2 C. P. 476.1 18Q.B.426. | Frcl, ration for refusal to DECLARATIONS ON CONTRACTS. FORBEARANCE. 131 FORBEARANCE TO DEFENDANT. Ous. — An agreement to forbear absolutely; Mapes v. Sidney, Cro. Jac. C8.'!; or for a given time; Semple v. Pink, 1 Ex. 74; to commence or to prosecuU (Wade v. Simeon, 2 C. B. 548, 565, 567) proceedings at law or in equity for a well-founded legal or equitable demand; Jones v. Asbburnham, 4 Bast, 155; Edwards '•• Baugb, n M. & W. 641; is ;i good consideration tor :i promise by the debtor or a third person ; Maud r. Waterhouse, 2 C. & P. 579; Smith v. Algar, 1 B. & Ad. 603 ; to pay the debt or more, or do any other legal acl ; Wade f. Simeon, 2 C. B. 548; Llewellyn v. Llewellyn, 3 1). & L. 31*; Bid- well v. Calton, Hob. -216; Parker v. Leigh, 2 Stark. R. 229 ; Poolley v. Gilberd, 2 Bulst. 41; [1 Chitty Contr. (11th Am. ed.) 35 el seq. There must be a bona fide claim. Cook v. Wright, 1 B. & S. 559; Callisher v. Bischoffsheim, L. R. 5 Q. B. 449; Wade v. Simeon, 2 C. B. 548; Could v. Armstrong, 2 Hall, 266; Palfrey v. Portland, Saeo & Portsmouth R. R. Co. 4 Allen, 55, 5 7.] But forbearance of such claim is no consideration unless there be a person liable to be sued. Jones v. Asbburnham, supra: Bacher v. Fox, '1 Saund. 136; Hunt v. Swaine, 1 Lev. 165 ; [Nelson v. Searle, 4 M. & W. 795.] Forbear- ance by the assignee of a bond, or of a debt, or other chose in action, is a suf- ficient consideration, being as beneficial to the debtor as if the assignee had been the original creditor, and had forborne. Morton v. Burn, 7 Ad. & E. 19; 1 Saund. 210; Fish v. Richardson, Cro. Jac. 47; 1 Roll. Ab. 20, pi. 11. The abandonment of a doubtful claim or a suit to try a question upon which a reasonable doubt existed ; Llewellyn v. Llewellyn, Edwards v. Baugh, supra; Longridge v. Dorville, 5 B. & Aid. 117; Walters r. Smith. 2 B. & Ad. 889 ; Stracy v. Bank of England, 6 Bing. 754 ; Bridgman v. Dean, 7 Ex. 199; Tempson v. Knowles, 7 C. B. 651 ; [Stewart v. Stewart, 6 CI. & Fin. (Am. ed.) 911, and note (1), and cases cited; 1 Chitty Contr. (11th Am. ed.) 46, and note (wi 1 ) and cases cited ;] or an agreement to give up proceeding in a pending reference; Smyth v. Holmes, 10 Jur. 860 ; are sufficient considera- tions to support a promise. [The surrender or discharge of a claim which is utterly without foundation, and known to be so, is not a good consideration for a promise. Kidder v. Blake, 45 N. H. 330 ; Pitkin v. Noyes, 48 N. H. 304. Nor does a discharge from an oral contract inoperative under the statute of frauds. North v. Forest, 15 Conn. 400.] As to promises in con- sideration of forbearance, &c. to third persons, see post, " Guaranties." 1. On Defendant' 's Promise to pay Debt and Costs if the Plaintiff would suspend an Action against him. For that an action had been commenced and was pending by and at the suit of the plaintiff against the defendant in the court of ["queen's bench"] at Westminster for the recovery of a certain sum of money, due and owing (z) from the defendant to the plaintiff, and thereupon, in consideration that the plaintiff would stay (a) all further proceedings in the said action until the day of then next, (b) he the defendant promised the plaintiff to pay (z) It is not necessary to state the subject- (b) A suspension of proceedings for a matter of the debt ; Com. Dig. Action on given time, Semple o. Pink, 1 Ex. 74, or for the Case on Assumpsit; but there must in a reasonable time, suffices to constitute a general be a legal or equitable claim. See good consideration ; [Sage *;. Wilcox, 6 Obs. supra. Conn. 81 ; Silvis v. Ely, 3 Watts & S. 420; (a) As to the mode of laving the promise, Watson v. Randall, 20 Wend. 201 ; Jennison see Payne v. Wilson, 7 B. & C. 423 ; Tan- v. Stafford, 1 Cosh. 168 ; Robinson o. Gould', ner v. Moore, 9 Q. B. 1. If the defendant's 11 Cush. 55 ; Bixler v. Ream, 3 Perm. 282 ; promise be in consideration that plaintiff Oilman v. Kibler, r> Humph. 19 ; Colgin v. would not sue him, the declaration may Henley, 6 Leigh, 85 ;] there need not be a be as follows: "For that in consideration total abandonment of the suit. Chit. Contr. ; that the plaintiff would forbear to sue the Oldershaw v. King, 2 II. & X. 517. [The defendant lor recovery of a certain debt of better opinion seems now to be, that an £■ , due and owing from the defendant agreement to forbear, in which no time is to the plaintiff, until, &ct" mentioned, is good; and that, in declaring IATI0N6 OH CONTRACTS. FRAUDULENT CONVEYANCES. him 1 debt and the ■ ) of the plaintiff by him incurred in com- the said action, on the day of then next; plaintiff Bays, thai he ceased to prosecute, and hath hitherto stayed all - in ili.- >ai.l action, and that the plaintiff's costs of the said action , u ;, [,, £ .. and that all conditions precedent have been per- and all events have happened, and periods of time have elapsed to entitle the plaintiff t" maintain this action ;(<£) yet the defendant hath not i debt and costs or any part thereof [Add account stated, fyc. as \bligor of <' Bond on the Forbearance by the Assignee to ■-uf htm ; and Law. Morton v. Burn, 7 Ad. & El. 19. Fruis on the Forbearance by the Grantee of a Warrant of Attorney or Cognovit. itt, 2 Dowl. N. S. 4; Payne v. Wilson, 7 B. & C. 423. 4. Against an /.' ■ on his Promise to pay a Legacy in Considera- tion of Forbearance. ... . (hit. PL (7th ed.) 179 ; and see Deeks v. Strutt, 5 T. R. 690 ; Jon< ranner, 7 B. & C. 542; Topham v. Morecraft, 8 El. & Bl. 972; ithwaite p. Skinner, 5 M. & W. 313; ante, 124, note (p). FRAUDULENT CONVEYANCES. ' /.'..-. 5, to recover the Penalties for making a Fraudulent < '■'iiveyance. (e) Butche; '•• Harrison, 4 B. & Ad. 129. ent, it may be treated as an (c) If there was any agreement as to the ar for a reasonable time, costs being costs between attorney and 2 II. vV X. 517 ; and per client, or costs to be taxed, the declaration J. in < tales o. Pack, L. should be framed accordingly. 71 j King v. Upton, 4 GreenL (d) Where in consideration of forbearance Vanderlyn, 4 John. 237; defendant promised payment on a particular rly, 2 Binn. 506. Bnt it day, the stay of proceedings nntil that day a lit- was held a condition precedent. Kolt v. -■•in.- time, is too indefinite Cozens, 18 C. B. 673. asideration for a con- (e) As to when conveyances are fraudu- lrown,4 Wash. C. C. lent, see [1 Chittv Contr. (11th Am. ed.) - I It there 57 a seq. ; Spirettw. Willows, 3 De G., J. & to the time of forbearance S.(Am.ed.) 293, and notes.] A bond Jide sale tion may allege it i> not fraudulent merely because it "is made ■ time which has long with the intention to defeat the expected ex- Sidney, Cro. ecution of a judgment creditor. Wood v. I -'" 1 B own, 4 Wash. C. Dixie, 7 Q. B.' 892; and see Thompson v. I Penn. 885; Webster, 28 L. J. Ch. 700; Michael v. Gay, le, 69 ; Hakes v. 1 F. & F. 409 ; [Darvill v. Terry, 6 H. & N. Nt 231.] 807; 1 Chitty Contr. 575.] DECLARATIONS ON CONTRACTS. GENERAL AVERAGE. 133 FRAUDULENT REMOVAL. By a Landlord on 11 Geo. 2, c. 19, s. 3, for Penalties for assisting a Tenant in fraudulently removing his Goods to prevent a Distress. See a form and law, 2 Chit. PI. 345 ; and see Dibble v. Bowater, 2 El. & Bl. 504. FREIGHT. See ante, " Carriers." GARNISHEE. See ante, 16. GENERAL AVERAGE. 1. By the Owner of a Ship against the Oivner of Goods on Board for his Proportion of General Average Loss accruing from Injury done to the Ship by the loss of an Anchor, $c. cut aivay to preserve the Ship> and Cargo, and Expenses incurred in putting hack to preserve the Ship. (/) For that the plaintiff was owner of a ship called the , and of her tackle, anchors, masts, boats, and appurtenances, which ship was proceeding on a certain voyage, from towards , with certain goods of the defend- ant on board thereof, to be carried therein on freight during the said voyage. And thereupon, during the said voyage, one of the anchors of the plaintiff, belonging to the said ship, was by storms and tempest forced and driven over- board, and became and was suspended on the side of the said ship, and en- tangled in the rigging thereof; and thereupon, in order to preserve the said ship and the goods on board thereof, it became and was expedient and neces- sary to cut away the said anchor and parts of the rigging belonging to the Said ship, and the same were accordingly cut away, and were wholly lost to the plaintiff; and by means of the said damage and loss, and other damage to the said ship occasioned by the said storms and tempest, the said ship be- Came and was so greatly damaged that it became and was necessary, in order to preserve the said ship and her cargo, for the said ship to put back again to aforesaid, and to repair the said damage ; and the said ship with the said goods of the defendant so on board thereof, thereupon put and sailed back again to aforesaid, and the said damage was there repaired, and the necessary expenses incurred by the plaintiff in the premises amounted to the sum of £ ; and whilst the said ship was so repairing as aforesaid, the plaintiff necessarily incurred expenses in the payment of the wages and the (/) See forms, 2 Chit. PI. 7th ed. 159; erage; Goulds Oliver, 4 Bing. N. C. 134; Birkley v. Presgrave, 1 East, 220; Price v. Ilallett v. Wigram, 9 C. B. 580 j Hall v. Noble, 4 Taunt. 124; damage done to t he Janson, 4 El. & Bl. 508; Job v. Langton, ship by tempest falls on the owner. As to 6 El. & III. 77'.i ; Morau r. Jones, 7 El. & Bl. the law of " average/' see Abbott on Ship- 52.J ; and wst, title " Insurance." [What is ping, Holt on Shipping, .Marshall on IiiMir- recoverable as general average, see Wilson nnce, Arnould on Insurance, Stevens on Av- v. Bank of Victoria, L. R. 2 Q. B. 203.] CLARATIONS OH CONTRACTS. GOOD-WILL. £ the said ship, in the whole amounting to £ ; j means of the premises, saved and preserved, and the hands and possession of the defendant, of all which the \,\ notice; and by reason of the premises the defendant, as such ras and is liable to pay and contribute to the said | expenses, in a general average, the sum of £ [here litiont precedent as .ante, 39] j yet the defendant said Bum of £ to the plaintiff. 2, / bitatus Count for General Average. (g) to, 134. Form 1.] For general average due and pay- m tli.- defendant for and in respect of goods of the defendant having irried by the plaintiff on board a ship of the plaintiff upon a certain the defendant at his request; and in respect of certain losses, dam- I expenses incurred by the plaintiff in and about the preservation of I ship and her cargo, and the said goods of the defendant from damage and loss during the said voyage [add account stated and conclusion, as ante, 34]. GOODS SOLD. See " Sale of Goods," post. GOOD-WILL. Dtract for the transfer of the good-will of a business is good in law; ; r. G-ay, 1 East, 190; Wyburd v. Stanton, 4 Esp. 179; and though in • ase there is do implied contract on the part of the vendor not to set Dp again in a similar business, equity will in some cases interfere and restrain liini from doing so. Churton v. Douglass, 1 Johns. 174 ; 28 L. J. Chanc. 841 ; Benwell v. Inns. 24 Bear. 807; Davies v. Hodgson, 25 Beav. 127; [Spier v. Lambdin, 45 Geo. 819; Hall's A]. peal, 60 Penn. St. 458. As to the mean- of the term" good- wilL see Austen r. Boys, 2 De G. & J. 626 ; 2 Lindley Parte. (2d Eng. ed.) 884-890; Collyer Parte. (5th Am. ed.) §§ 161- L, and notes; Bradford v. Peckham, 9R. I. 250.] An ■ at which operates in general ;mi\ universal restraint of trade is void eing contrary to public policy. Pilkington v. Scott, 15 M. & W. 657; Hilton v. Bckenley, ^ EL I 18; Benwell o. tens, 24 Beav. 307; [Vaughan B. in Young v. (_'/) No- ante, I'M, note (/'i, and post, "Insurance." DECLARATIONS ON CONTRACTS. GOOD-WILL. 1 :',.", Ous. Timmins, I Tyr. 226, 241; Daffy r. Shookey, 11 Ind. 70; Grasselli v. Low- den. 11 Ohio St. 849; Holmes t>. Martin, 10 Geo. 503.] The adequacy of the consideration is not, however, the test of the reasonableness of the restriction. Sainter v. Ferguson, 7 C. B. 706, jm r Coltman J.; [Pilkinton v. Scott, 15 M. & W. C57; Hitchcock r. Coker, 6 Ad. & El. 488.] The restraint must only be partial^ not Larger than is necessary for the protection of the party with whom the contract is made. Tallis /•. Tallis, Mallan r. May, supra; [James \'. C. in Leather Cloth Co. v. Lorsont, L. K. 9 Eq. 845, 854; Lawrence v. Kidder, 10 Barb. 641; Lange v. UVrk, 2 Ohio (X. 6.) 519; California Steam j\av. Co. v. Wright, G Cal. 258.] It may he indefinite as to the duration of time, if limited as to space, anil in other respects reasonable. Elves '•. Croft, 10 C. B. 251; Hitchcock v. Coker, supra; Hastings v. Whitley, •> Ex. 611, 615; Mallan v. May, 11 M. & W. 653; Pemberton v. Vaughan, L0 (,). 15. 87; Sainter v. Ferguson, supra ; Jones v. Lees, 189; 26 L. J. Ex. 9; [MeClurg's Appeal, 58 Penn. St. 51; Butler v. Burleson, 16 Vt. '176. As to the mode of measuring distances in such case, 2 Chitty Contr. (11th Am. ed.) D>io, note (#).] If the only limit be as to time, and none as to space, it will be considered void. See Ward v. Byrne, 5 M. & W. 541; Hinde v. Gray, 1 M. & G. 195; Mum- Ion 1 v. Gething. 7 C. B. N. S. 305. [An agreement not to use certain ma- chines in any of the United States, except two, was held good in Stearns v. Barrett, 1 Pick. 443.] Agreements in restraint of trade are divisible, and may be enforced in part, though some stipulation may be void as in restraint of trade ; as in the case of a covenant not to carry on a business -within the city of London or Westmin- ster, or within the distance of 600 miles from the same ; the latter restriction would be void, but the other portion of the clause may be enforced. Price v. Green, 16 M. & W. 346; Mallan v. May, supra ; [Erie Railway Co. v. Union Loco. & Express Co. 6 Vroom, 240. A contract to sell the secret of making a certain medicine, and binding the vendor not to disclose the secret to any other person than the vendee, and not to use it himself, is valid. Hardy v. Seeley, 47 Barb. 428; Jarvis v. Peck, 10 Paige, 118; Billings i>. Ames, 32 Missou. 265.] 1. Common Count for the Good-will of a Business, (li) Commencement as ante, 33.] For the good-will of a business of the plain- tiff, sold and given up by the plaintiff to the defendant, and for [add goods sold, if applicable, account stated, as ante, 34, Form 1.] 2. By the Purchaser of the Good-will of a Business against the Vendor on his Covenant not to carry on Business within a certain Limit as to Distance, or of Time. For that the defendant, by deed dated the day of , a. d. , for a good and valuable consideration in the said deed mentioned, (i) covenanted with the plaintiff that he the defendant would not, during the space of years then next following [or "during the lifetime of the plaintiff," or "dur- ing such time as the plaintiff should reside and carry on business at ," or " at any time thereafter," according to the terms of the covenant in the particular case'], directly or indirectly, by himself, or by any agent or agents, or in co- partnership with any other person or persons, carry on or exercise the practice oi profession of a " surgeon and apothecary," or either of them, either by residing, (h) This form is given by the C. L. P. a special count for the price of a good-will Act, 1852, sch. B, 8. If the plaintiff's claim &c. Smart v. Harding, 15 C. B. 652. is also for the " Lease " of the premises, see (i) See supra, Obsf as to the necessity for a form post, " Vendor and Purchaser." See such consideration to suppcrt a contract of this kind. : ^RATIONS ON CONTRACTS. GUARANTIES. . patient, within the distance of miles (/.) from ,(k) : any breach or non-performance of the said covenant, he .,, would pay to the plaintiff the full sum of £ , to be recov- 5 , him the Baid defendant as and for liquidated damages, and not as (/) [Acer performance of conditions precedent, $c. as ante, 39.] • . :• the making of the Baid deed, and during the said term according to the terms of the covenant in the particular case], ,1 the practice and profession of a " surgeon and apothe- , the said distance of miles from aforesaid, (m) and not paid the plaintiff the said sum of £ . And the plaintiff claims -. Air. 1 1, i. nt not to exercise a Trade within Certain Limits. r that by aii agreement made and entered into by and between the plain- ind the defendant, after reciting that the plaintiff had taken the defendant bis Ben ice as an assistant, at a certain annual salary, upon condition, among other things, that the defendant should enter into and observe and perform the ement thereinafter contained, the defendant did, in and by the said agree- :. promise and agree with the plaintiff, that if the defendant should at any time tli. .(") directly or indirectly, either in his own name or in the name of any other person, use, exercise, carry on or follow the trades or busi- • a chemist and druggist, or either of them, within the town of , in the county of - — , or within three miles thereof, then that he the defendant dd on demand pay t<> the plaintiff £ as and for liquidated damages, (o) and although [aver performance of conditions precedent, as ante, 39], yet the de- fendant afterwards, (p) in his own name, used and exercised, and carried on and followed the trades and businesses of a chemist and druggist within [or "within - miles of"] the town of aforesaid. And although the plaintiff after- ward- demanded the said sum of £ , yet the defendant hath not paid the And the plaintiff claims £ . (q) GUARANTIES. the treatises on principal and surety by Fell and Theobald; 3 Chit. Com. Index, tit. •• Guarantee; " [1 Chitty Contr. (11th Am. ed.) 738 et seq.~\ '< i-v . 1 1 i . . 1 1 - , supra; and see cost, (o) Ante, 136, note (I). (]>) See the last form. If the restriction this clause tbe sum is recover- was for a limited time allege the breach to ■■I damages sustained by have happened within such time. : . 1 Ex. 659 ; (7) See other forms in the following cases : Rawlinson Hitchcock v. Coker, 6 Ad. & E. 438 (Chemisl M & W. 1-7 ; Saint. t e. Fer- and Druggist) ; Archer v. .Marsh. 6 Ad. & E. : '"- 595 (Carriers) ; Mallan v. May, 11 M. & W. il is a breach of such a cove- 653 ; Rawlinson v. Clarke, 14 M. & W. 187 ton v. Clarke, 14 M. & W. (Surgeons); Atkyns v. Kinnier, 4 Ex. 776; ince 1- to be measured by a Reynolds ». Bridge, 6 El. & BL 528 ; Mercer '■ '-a a horizontal plane, i. <. ,: a. ,-. Irving, El., Bl. & El. 563 ; Sainter v. Eer- " and not |, v tin- nearest prac- fruson, 7 C. B. 716; Galsworthy v. Strutt, 1 in v. Walker, Ex. 659 (Attorney) ; Green v. Price, 13 M. 1 ■'■ Lei 1 v. Hinde, 9 B. & C. & W. 695 (Perfumer); Elves v. Crofts, 10 C. P.. 241 (Butcher); Tallis v. Tallis, 1 El last form. This will depend & Bl. 391 (Publisher? l at in the particular case. DECLARATIONS ON CONTRACTS. GUARANTIES. ' 137 3bs. It is necessary to declare specially on a guaranty or promise to pay or answer for die i lei >t or default of a third person. The common count will no! suffice; 1 Saund. 211 a, b : Mines r. Sculthorpe, 2 Camp. 21 ■> : hut the declaration need not state, that the contract was in writing or signed, l Saund. 276, note (1); ChaliCv. Belshaw, ii Bing. 529. The statute of frauds, 29 Car. 2. <•. 3, s. 4, enacts " that no action shall he hroii^ht whereby to charge the defendant upon any special promise to answer for the in the «:.y of the plaintiff's business of a " if the mem- Zrud] to one A. J. on credit (0 ["until the plaintiff should • , the " mtrary from the defendant," insert this or any other par- m which may be contained in the memorandum], the defendant .nd promised the plaintiff to be answerable to him for the due pay- the prices of the Baid [-porter," "to the extent of £100," if in the n] ; and the plaintiff did afterwards [add " and before the day v . d. ." if it were a continuing guaranty and acted upon accord- .. 11 and deliver to the said A. J. on credit [or "such credit as aforesaid," ticular en dit were fixed by the guaranty'], certain [" porter " or "goods," ■]. the prices whereof amounted to £ , which the said A. J. had for and required of the plaintiff, and that although [here aver per- •• conditions precedent, as ante, 39, between the **], yet the said A. .1. bath not (u) nor hath the defendant paid the same. [Add account stated, as [On 'i guaranty for the due fulfilment of a charter-party. Rein v. Lane, I., l;. 2 Q. B. l li. a continuing guaranty for the running balance of an account. Brad- Siorgan, 1 EL & C. 249.] (r) I; the written memorandum contains ity parti; good cinder the statute - and partly bad (see an instance, Benson, 2 Cr. & J. 94, observed npon by Patteson J.; Williams v. Burg B. 501 ). and the bad part be capo- on from the good, take can- to insufficient part (sec Com. Diur. Assumpsit, 15. 13) ; otherwise, if be laid as an entire one, the onsideration ml] afford I bomas f. Williams, 10 B. & C. n v. Wallace, 7 Ad. & E. 49; Baldrey, 6 Ad. & E. 459; Thomas i 1 I on 2 Q B. B51. See post, "Obser- ibi Plea of Nmi Assumpsit." to aso rtain whether, in cases on this subject, tlie considered a continuing be from time to time transaction only. Sec 1 (11th Am. ed.) 769, (tin ' Wright, G Q. B. '•'17 ■ ' W. 605; John- i ' B. 251; Solvency Mut- ty v. York, 27 L. J. Hnmfrey, 5 M. & G. Broom v. Batchelor, l H. & N. a- to whether future advances. □tinning guaranty. Wood v. r, I. R. 2 Ex. • 6, 282.] (/) If any particular or fixed credit be specified in the guaranty, this allegation must be conformable thereto. It is generall) better to set out the guaranty in its own terms (see Morrison v. Trenchard, 4 M. &G. 709) ; because, though the legal effect, if coi rectly stated, would suffice, yet the judge might probably reserve the question of vari- ance at the trial, which would occasion in- creased delay and expense. See an instance, Johnston v. Nicholls, 1 C. B. 251. If the guaranty was subject to any exception or condition, it should be so described, The performance of conditions precedent contained in the guaranty may be averred generally. C. L. P. Act, 1852, s. 57 ; ante, 39 between the **. Where a declaration set forth the circumstances under which a guaranty was given, and which explained that it was given in consideration of a future supply of goods, and then set forth the guaranty in words, and the defendant demurred, it was held that the statement of the circumstances might be looked at to explain the writing. Bainbridge v. Wade, 16 Q. B. 89. («) Request to and non-payment by the principal, and notice thereof to the defend- ant, appear not to be necessary averments. 1 Sid. 178; 2 Roll. 733, 1. 15; Little If. Hewitt, 11 Price, 494; White v. Woodward, 5 C. B. 810 ; 17 L. J. C. P. 209. [1 Chitty Contr. (11th Am. ed.) 742, note (6 1 ).] DECLARATIONS ON CONTRACTS. GUARANTIES. 109 2. On a Guaranty for the Fidelity of a Clerk or Servant. For that in consideration that the plaintiff would employ A. B. (or allow A. B. to continue in his the plaintiff's employ) as "clerk" (x) to the plaint ill [••in his business of "], to collect and receive moneys fur and on account of the plaintiff, (y) the defendant promised the plaintiff to be answerable to him ["to the extent of £ "] for the said A. B.'s paying over to the plain- tiff all moneys which the said A. B. should so receive in the course of such em- ployment ["during the space of one year then next following," if the guar- anty was so limited, (z) And the plaintiff employed the said A. B. as such " clerk " in the capacity and on the terms aforesaid, and the said A. B., whilst he was in the plaintiff's employ as such " clerk" ["and during the said period of one year "] received for and on account of the plaintiff £ , which he has never paid over to the plaintiff, although all events have happened and conditions precedent have been performed and all periods of time have elapsed for his so doing, and to entitle the plaintiff to maintain this action. Yet the defendant has not paid the same to the plaintiff. And the plaintiff claims £ ." 3. On a Guaranty in Consideration that the Plaintiff would let a House to a Third Person, the Defendant would be answerable for the Rent, (a) For that in consideration that the plaintiff would let to one T. S. a mes- suage and premises, No. [# C- ]> t0 h°ld tne same as tenant thereof to the plaintiff from Michaelmas Day, A. D. , at the yearly rent of £ , payable quarterly on the usual quarter days, commencing on the day of , A. d. , the defendant promised the plaintiff that if the said T. S. should not pay the said rent, he the defendant would pay the same to the plaintiff; and the plaintiff let the said tenements to the said T. S., who held the same as tenant to the plaintiff on the terms aforesaid, until the day of , A. D. , when £ for quarters of the rent aforesaid be- came due from the said T. S. to the plaintiff; and although [here aver per- formance of conditions precedent, as ante, 39, between the **], yet the said T. S. has not, nor has the defendant, paid the said £ to the plaintiff, and the same is in arrear and unpaid. [Add account stated, as ante, 35, Form 2.] (x) The nature of the service should be wald, 3 El. & Bl. 653 ; Eastern Union By. described as " clerk," " agent," " traveller," Co. v. Cochrane, 9 Ex. 197 ; Holland v. Lea, "salesman," &c. See Lvall v. Higgins, 4 Q. 9 Ex. 430; Pattison v. Belford Union, 1 H. B. 528; Norton v. Powell, 4 M. & G. 42 ; & N. 523; [Grocer's Bank v. Kin-man, 16 Stewart v. McKean, 10 Ex. 675-689. A Gray, 473, 475 et seq.; Owen r. Iloman, change in the nature or terms of the cm- 3 Mac. & G. 400, cases in note (1).] As to a ployment, or the amount of salary paid to change in the plaintiff's firm, supra, Observa- the principal, may discharge the defendant, tion. Anderson v. Thornton, 3 Q. B. 271 ; Pyhus (y) Sec ante, 139, note [x). v. Gibb, 6 El. &B1. 902 ; North Western Ry. (z) See Bamford v. lies, 3 Ex. 380 ; Kit- Co. v. Whiniay, 10 Ex. 77; per Parke B. son v. Julian, 4 El. & Bl. 854; Mayor of Stewart v. McKean, ubi supra. Sec the cases Berwick v. Oswald, 5 H. L. Cas. 586, supra. collected [I Chittv Contr. (11th Am. ed.) (a) See another form, Cabcllero u. Slater, "65, note (o), 766 ;]"andpo8«," Pleas," "Guar- 14C.B.300; 23 L J. C. P. 67. antics;" and see Mayor of Berwick v. Os- LARATI - NTRACTS. GUARANTIES. ,-.... pay a Debt in Consideration that ge his I' '■ ■ - .*' Custody. Butcher v. Stenart, 1 D. & L. 308; 11 M. & W. B. & A .-. - 3 -rnith v. Monteith. 13 M. & W. 42, : . t-1: Hasleham v. Young. 5 Q. B. 833: Lane |£ * < V man r. Chase. 1 B. £ Aid. 297: Bird r. • Bing. X. C 833. -,j : ,/ payhtmArr f Rent due from - fa Distress, in Consideration that he the Pit i.(F) Y >r that the plaintiff had lawfully distrained the goods [chattels and grow- ; f one R. C. then being upon certain premises, for £ arrears from the said R. C. to the plaintiff, in respect of the said premises, ation that the plaintiff would withdraw (c) the said dist:- - •it promised the plaintiff that he the defendant would pay him the • I arrears of rent as well as the costs of the said distress, arnount- :• to the sum of £ in one month from the day of , . in case the said R. C. should then make default in paying the same he terms of the defendant's contract']. And the plaintiff says thdrew the dist ss, and delivered up possession of the said goods, ~Sj ■. : here aver performance of conditions precedent as ante. 39. the **]. yet neither the said R. C nor the defendant has paid the I arrears of rent or the costs aforesaid. [Add account stated, as . >rm 2.] 6. I " ' " Banker* that a Third Person should pay hi* if they would open an Account with him.(d) I " thai the plaintiffs carried on the business of bankers in copartnership. and -ideration that the plaintiffs, at the request of the defendant, would at with and honor the checks of one H. B. on a certain account, I the " mill account." to be therefore opened by him the said H. B. - - i'h bankers, the defendant promised the plaintiffs to be hem for any balance which might thereafter be or become due 9 it relates 1 (c) If the promise were in consideration on the with- that plaintiff would forbear to distrain, see fund in plaintiffs Thorns o. Williams, 10 B. & C 664. h.- medium of -which he {d) Howell r. Jones, 1 Cr.. M. & R. 97 ; \ according to Davidson v. M'Gregor, 8 M. & W. 755, Williams 10 B. jc C. where the liability was limited by deed to a f frauds ; but that certain amount. See another similar form, ;•' the case of Green v. where the guaranty was to secure past as E. 453 : and Bee Har- well as future advances, Chapman v. Sutton, M ,v W. 561 ; and see 2 C. B. 634 ; 3 D. & L. 646, S. C. ; and form, 13S. In con- another form in Boyd r. Moyle, 2 C. B. 1 withdraw a 644. As to whether a clause in such a con- - if a bankrupt tract as to the amount of advances to be 1 that plain- made operates as a condition to the defend- amonnt distrained for ant's liability, or merely a limit to such lia , *>ds dis- bilitv, see Gordon v. Rae, 8 El. & Bl. 1065. '.1, 4 Tvr. 6. DECLARATIONS ON CONTRACTS. GUARANTIES. 141 from the said H. B. to the plaintiffs as such hankers upon such account and in respect of such checks [set out the guaranty in its precise terms or according to its legal effect']; and the plaintiffs say that they opened an account with the said H. B. [on the said mill account], and honored his checks on the said mill account, and paid and advanced money on account of the said checks, and otherwise on the said account, and that the said H. B. became and was in- debted to the said plaintiffs in the sum of £ upon the balance of the said account so opened and the said checks so honored and advances so made as aforesaid ; and although [aver performance of conditions precedent, as ante, 39, between the **], yet the said H. B. has not nor has defendant paid to the plaintiff the said sum of money last mentioned, but the same is still due and unpaid to the plaintiffs. [Add account stated, fyc. ante, 35, Form 2.] 7. On a Promise to pay a larger Sum than the Debt, in Consideration of Plaintiff's forbearing to execute a Fi. Fa. against a Third Per- son. Smith v. Algar, 1 B. & Ad. 603 ; and see the cases referred to, Form 4, ante, 140. 8. On Defendant' '« Promise to pay the Debt of a Third Person in Con- sideration that Plaintiff would not sue him. (e) For that one E. F. was indebted to the plaintiff in £ (f), and in con- sideration that the plaintiff would forbear to sue, and would give time to the said E. F. for the payment of the said sum until the day of then next [as the case mag be], the defendant promised the plaintiff to be answerable to him for the payment of the said sum by the said E. F., and to pay him the same on the said day of then next, in case the said E. F. should make default in paying the same ; (g) and the plaintiff did forbear and give time to the said E. F. for the payment of the said sum until the said day of , A. d. , but that the said E. F. hath not as yet paid the said sum of money, or any part thereof, to the plaintiff ; and although [here aver per- formance of conditions precedent, as ante, 39, between the **], yet the defend- ant hath not paid to the plaintiff the said sum of £ , but the same is still due and unpaid to the plaintiff. [Add account stated, as ante, 35, Form 2.] (e) The forbearing to press for immediate see Jones v. Ashburnham, 4 East, 455 ; Mar- payment, means giving the debtor reason- shall v. Birkenhart, 1 N. R. 172 ; Com. Dig. able time, and a promise to give reasonable Act. on Case, Assumpsit, F. 8, H. 3 ; Hob. time for payment of a debt is a good consid- 18. eration for a contract. Oldershaw v. King, (g) If there be any condition precedent 2 H. & N. 517. As to the law, &c. see Obs. before plaintiff was to be paid the money on ante, 131. 137. The form, No. 1, ante, 131, the guaranty, such as sending a letter to in- may readily be adapted to a declaration on a form defendant of the default of the third promise to pay the debt of another in con- person, or a notice to pay, or a demand in siderari m of forbearing a pending suit, tak- writing, it should be averred, or there will ing care to aver the default of the third party, be a fatal omission. Higgins v. Dixon, 3 D. &c. See next form, and see Rolt v. Cozens, & L. 1 24 ; Batson v. Spearman, 9 Ad. & E. 18 C. B. 673 ; ante, 132, note (d). 298. A promise, " in consideration of plain- (/) Not necessary to state subject-matter tiff having agreed to stay proceedings against of debt. Barrett v. Trussell, 4 Taunt. 117. B. I hereby undertake "to pay, &c." held an Better not. Peake, 117. Amount not ma- executory contract. Tanner v. Moore, 9 Q. terial. Bray v. Freeman, 8 Taunt. 197; and B. 1. : ORATIONS ON CONTRACTS. GUARANTIES. \hyth Massachusetts Practice Act, on a Promise to pay the Debt of Another. be plaintiff Bays that one E. F. owed him the sum of for ontiff was about to sue the said E. F. to recover the same; uliil „ that the plaintiff would forbear to sue said E. F., the an agreement to pay the same to the plaintiff, a copy whereof , ,1 ; and the plaintiff did forbear to sue the said E. F., and the aim that Bum.] ,, /; //.. ,,./ Wife, on Promise by Defendant as Bail for a Third p nderation that Plaintiff would not sue out Execution ■ ■'■ . // hi /• to render him on a certain Day or pay the Debt. \ i ,: Wills. 4 B. & Ad. 739 ; 1 Ad. & E. 65 ; post, 149, in note. I , /■ pay Debt and Costs in Consideration that Plain- I suspend Proceedings on a Cognovit against a Third Per- ! ( ) V .r that our C. V. was indebted to the plaintiff in £ , for the recovery of which tin/ plaintiff had commenced an action against the said C. V. in the B. at Westminster, and in which action the said C. V. had signed n i.) the plaintiff a cognovit for the payment of the said debt, together „;,), £ fo r the costs of the action, at certain times therein mentioned, and dow elapsed ; and the said C. V. having made default in payment of the whole of the Mini at the times specified in the said cognovit, the plaintiff was about to take proceedings on the said cognovit, and thereupon, in consideration tha,t tli.- plaintiff would consent to suspend proceedings against the said C. V. on tin- said cognovit until [#c], he the defendant promised the plaintiff to be ible to the plaintiff for the payment to him of the sum of £ on of the -aid debt, on the day of then next; and the plaintiff did Buspend all further proceedings against the said C. V. on the said cognovit until [4"c] i and although [aver performance of conditions precedent, as ante, the **], yet the said C. V. hath not paid the plaintiff the said sum — . nor hath the defendant paid the same. [Add account stated, as ante, 1 '.nu 1'.] 11. On ■' /'/■■•in ise to pay the Debt of Another, in Consideration that /'/■lint give up a Lien on Goods which he held as a urity. i i > 1 E. 1". deposited with the plaintiff certain goods, that is to say, [ a deedV] to be held by the plaintiff as a security for the repayment to him DECLARATIONS ON CONTRACTS. HEIRS. 143 by the said E. F. of £ , then advanced by the plaintiff to the Baid E. F., and the plaintiff had a lien on the said goods for the said sum of £ , (<') and thereupon, in consideration that the plaintiff would relinquish the pos- session of the said goods to , and give up his said lien thereon, the defend- ant promised the plaintiff to be answerable to him for the payment of the said sum of £ on or before the day of , a. d. , and the plaintiff accordingly relinquished and gave up the possession of his lien on the said goods, and that all conditions have been performed and all events have hap- pened and periods of time have elapsed to entitle the plaintiff to maintain this action ; yet the said sum of £ has not been paid to the plaintiff by the said E. F. or by the defendant, and is still unpaid. And the plaintiff claims £ . 12. By a Receiver in Chancery upon a Promise to pay him a Debt due to the Estate from a Third Person, in C consideration of For- bearance. Willatts v. Kennedy, 8 Bing. 3. 13. On a Guaranty to make up any Deficiency arising upon the Sale of Mortgaged Property, if it failed to realize the Sum advanced, with Costs and Expenses. Moor v. Roberts, 3 C. B. N. S. 830. 14. On a Bond guarantying Payment of Interest on a Debt, and Pre- miums on a Policy securing the same, and Costs and Expenses aris- ing therefrom. Wodehouse v. Farebrother, 5 El. & Bl. 277. See " Bonds," ante, 87. HEIRS AND DEVISEES. 1. Against an Heir on the Bond of his Ancestor. A. B., by his attorney, sues C. D., heir (k) of E. F., deceased. For that the said E. F. by his bond acknowledged himself and his heirs (I) to be bound to the plaintiff in the sum of £ , to be paid to the plaintiff by the said E. F. or his heirs, (w) but the said E. F. in his lifetime did not pay nor hath the defendant paid the same. And the plaintiff claims £ . terms of the contract the liability of the he so described. lb.; Cro. Car. 151. It original defendant was to be discharged, need not be averred that the defendant had See Ohs. ante, 137 ; Thomas v. Williams, 10 assets by descent. Dyer, 344 b. B. & C. 664. See form of declaration on a (/) It must be shown that the heir was promise, in consideration that plaintiff would expressly bound. 2 Saund. 134, note (1), release a ship detained by him on a claim 136; Com. Dig. Pleader, 2 E. 2; otherwise for damages. Longridge v. Dorville, 5 B. & the heir is not liable at law upon specialty aid. 517. debts of his ancestor; though these debts (h) The defendant must be described as are now charged in equity upon the land of neir, but it need not be shown how he be- the ancestor after his decase by 3 & 4 W. 4, nme so ; whether as son, grandson, cousin, c. 104 ; specialty debts by which the heir is &c. 2 Saund. 7, note (4) ; Com. Dig. expressly bound taking priority. Pleader, 2 E. 2 ; Vin. Abr. Heir, K. 2; (m) See the forms and Observations, ante, Denham v. Stephenson, 1 Salk. 1355. If 87, "Bonds," as to when the condition the defendant be heir of an heir, he should should be set out and breaches assigned. in DECLABATIONS ON CONTRACTS. HIRE. int against an Heir and Devisee, (n) \ i; ], v hia attorney, sues C. D., heir of G. H. deceased, [and if Uu u which Baid <■• BL in hia lifetime was heir of X. Y. (the E. F.. devisee of the said G. II. of divers lands and tene- of the- Baid G. II. deceased, at the time of his death, by •umiit." For that the said G. EL by deed dated [#c], for itore,and administrators, covenanted [#c], with the .tiff, that he the Baid G. IF. his heira [fyc. ; set out the covenant as usuul~\, would pay to the plaintiff the sum of £ , together with interest for the m the daj and year aforesaid, at the rate of £5 per centum per annum, un the day of , a. v. , which elapsed before the death of the ( ,. ii. . . , But the said sum of £ , and £ for interest thereon, till unpaid. And the plaintiff claims £ . HIRE. 1. Against the Hirer of Goods for the Price of Hire thereof. ■ nt as ante, 33.] For the hire of [as the case may be~\ (/•) by the plaintiff let to hire to the defendant, and for [add account stated as I]. 2. Against the Hirer of Goods for Carelessness, (s) 1 or that in consideration that the plaintiff, at the defendant's request, would |»i) At common law there was no remedy ceased debtor in cases where such lands shall, QSt the devisee of lands upon the spe- by descent or otherwise than by devise, be • ■•: the testator, but by II vested in the heir or co-heirs of such deceased 1 W. 4, c. 47, all wills and testa- person, subject to an executory devise over imitations, dispositions, or appoint- in favor of a person or persons not existing, of or concerning any lands, or not ascertained. The former stat. 3 & 4 hereditaments, or any runt, W. & M. c. 14, did not extend to actions of rin, or charge out of the same, covenant. Wilson v. Knubley, 7 East, 127. any person at the time of his de- See the excellent note on this subject, and zed in fee in possession, re- the pleadings connected therewith, 2 Saun- mainder, or have power to dis- ders, 7 ; and Farley v. Briant, 3 Ad. & E. ill, shall be taken as against 839, cited infra ; Hunting v. Sheldrake, 9 M. ith whom the testator shall have & W. 256 ; and see Morlev v. Morley, 25 L. it., any bond, covenant, or other J. Ch. 4; Koddam v. Morley, lb. 329; 26 L. to be fraudu- J. Ch. 438. Action by heir on a lease, post, ■ id B * . .very creditor by "Leases." other specialty, may (o) This is necessary when the declaration anv action of debl or covenant seeks to charge the heir of the heir of the ■ / - isees, or the obligor. 2 Saund. 7; Cro. Car. 151; Yin. ' • ntioned devisees, Abr. tit. Heir, K. 2, pi. 16. shall be liable for (/-) The heir is not liable, unless the cove- inanner as the heir nantor expressly bound his heirs. 2 Saund. ising the lands or 134, note (1), 136. B s. i, if there is no (q) It was decided in Farley v. Briant, 3 be maintained against Ad. & E. 839, npon the former statute of 3 Hunting v. Sheldrake, 9 & 4 W. & M. c. 14, that a devisee was not the heir and liable, unless the debt was due before the able for debts, death of the testator; and semble, the same ■ ite before ac- construction would be put on 11 (ieo. 4 and due of the lands sold. 1 W. 4, c. 47. 'visions in the (r) This is the form given by the Com. L. ent of debts out of P. Act, 1852, sch. B, 12. d to lands, &c. of a de- (s) See other forms against bailees of DECLARATIONS ON CONTRACTS. HIRE. 145 let to hire and deliver to him [" a certain horse," or " certain goods "], to be used by the defendant in that behalf for reward to the plaintiff, lie, the defend- ant, promised the plaintiff to use the same in a careful, moderate, and reasona- ble manner, whilst he had the same on hire ; and the plaintiff says that he let to hire and delivered to the defendant, who received the said [" horse " or " goods "' on the terms and for the purpose aforesaid, yet the defendant did not use the said [-'horse" or "goods"] in a careful, moderate, and reasonable manner, whilst he had the same on hire as aforesaid, whereby the same became dam- aged and deteriorated iu value. And the plaintiff claims £ . \_If any hire be due, add an indebitatus count, as Form 1, with an account stated. If the defendant has converted the goods or refused to return them, a count for the conversion or detention may be addedJ\ [2 a. Immoderate Driving. And the plaintiff says the defendant hired of him a horse to ride from B to C , and from thence back to C , in a proper manner, and the defendant drove said horse so immoderately that he became sick and lame, and was greatly injured in value.] 3. Against an Omnibus Proprietor for refusing to receive on Hire Omnibuses built for him by the Plaintiff, to be let by him to Defend- ant, and for returning Others before the Time agreed upon. For that in consideration that the plaintiff, at the request of the defendant, would finish and complete three omnibuses for the defendant, and would let such omnibuses to hire to the defendant when the same should be finished and completed, for the purpose and in order that such omnibuses might be used by the defendant in performing certain journeys, for hire and reward to the plain- tiff, the defendant promised the plaintiff to receive such omnibuses on hire when finished and completed, and to continue to keep the same on hire as aforesaid, until the expiration of one month's notice to be given by the defend- ant to the plaintiff of the defendant's intention to cease and discontinue to hire the same ; and the plaintiff says, that he finished and completed the said three omnibuses for the purpose and upon the terms aforesaid, and delivered one of thern to the defendant, and the defendant received the same, to be by him kept goods for not taking cave of and returning whose attendance he requires ; aliter, if he them. Ante, 69. A bailee of poods on hire himself prescribes for the horse ; Dean v. is bound to use only an ordinary degree Keate, supra ; if the hirer of a horse use it of care, and is not liable for loss by acci- for a different purpose or on a different ;jour- dental fire. Jones on Bailm. 86 ; Cooper v. ney than that lor which it was let, he will lie Barton, 3 Camp. 5, note ; Longman v. Gal- responsible for any accident that may occur lini, Abbott on Ship, loth ed. 292, note ; [1 to it. [Mayor of Columbus v. Howard, 6 Chitty Contr. (11th Am. ed.), 679, and notes Geo. 213; Rotch v. Hawes, 12 Pick. 136; (?') and [k).] The hirer of a horse is bound Duncan v. Railroad Co. 2 Rich. 613; Har- to discontinue the use of it if it becomes rington v. Snyder, 3 Barb. 380. Generally, exhausted and refuse its food ; Bray v. in a bailment of this kind, the burden of Mayne, Gow, 1 ; evidence that a horse was proof is on the bailor to show negligence, returned with broken knees, is not sufficient Story's Bailments, § 410; Clark v. Spruce, to support an action for negligence. Dean 10 Watts, 335 ; Beekman v. Shouse, 5 Kawle, v. Keate, 3 Camp. 5; Cooper ?•. Barton, lb. 179 ; Foote v. Storrs, 2 Barb. 326 ; Piatt v. 5, note. [See Logan v. Matthews, 6 Barr, Hibbard, 7 Cowen, 500 ; Schmidt v. Blood, 417; Harrington ;•. Snyder, 3 Barb. 380.] 9 Wend. 268; Runyan v. Caldwell, 7 Humph. The hirer of a horse is not responsible for 134. J its wrongful treatment by a regular farrier VOL. II. 10 ECLABA1 rRACTS. HUSBAND AND WIFE. :. and the plaintiff was always ready and willing to deliver ,.laiit the said two ether omnibuses for the purpose and upon the [here av< r performance of all conditions precedent, as ante. 39] ; ndaut refused to n eeive the said two other omnibuses, or either of '.. and without giving the plaintiff any notice of his, intention or discontinue to hire the omnibuses so re- ., him said, refused any longer to retain the same on hire, and line to tli-- plaintiff, whereby the plaintiff hath lost the benefits, ..,,1 ;i ,h which he otherwise would have derived from the per- | lV th. lant of his said promise, and hath uselessly incurred the • building the said omnibuses, and the same are of little or no use the plaintiff, and he is otherwise injured. [Add a count for the if any he due, ante, Form 1, and account stated, and conclusion, as ante, 4. /' fing a Vessel let to Hire in an illegal Manner contrary to I by Law, ichereby the Vessel was seized and detained. Bleaden v. Eapallo, 3 Scott N. R. 564; 3 31. & G. 116. HORSE MEAT. (0 mencement as ante, 33.] For horse meat, stabling, care, and attendance the plaintiff provided and bestowed in feeding and keeping horses and cat- r the defendant, at his request, and for [add account stated, and condu- its ante, 34, Form 1]. HUSBAND AND WIFE, (u) ral rights and liabilities. — A husband is liable to be sued with his wife u|«>n all the contracts of his wife before coverture; but he cannot be sued D on an express promise by himself, except upon some new consider- Her death destroys his liability, unless he become her personal repre- sentative; if she survive him, she is solely liable upon her contracts before marriag A husband is also entitled to sue with his wife upon choses in action arising out of Dtered into by her dum sola; but her death befcre he has reduced them into possession destroys his right of action, and they can only be en- Eorced by her personal representative. K the wife survive the husband, be- has reduced her chose in action into possession, she is entitled to it, and oal representative has no claim. h n sband is entitled to the benefit of, and may enforce in his own name, all red into by his wife during coverture; and as a general rule all icquired by her veBtsin her husband; see Messenger v. Clarke 5 Ex. 388; Brooke v. Brooke, 25 Beav. 342; Barrack v. McKullock, 3 K. & tun where she is the meritorious cause of action, as where the claim im the wife's personal skill or labor, or upon a bond, bill, or note, ■ payable to the wife, the interest of the husband is not absolute, but Uh survives to the wife unless he have previously reduced the "i into possession. 10, note (/). ^ 7 . Remarks of Foster J. in Putton v. Rice, ' u) I/' : >*>n lt,is subject, 1 Chittv 53 N. II. 496, 502.1 Pb; : tr. (11th Am. ed.) 223 k DECLARATIONS ON CONTRACTS. HUSBAND AND WIFE. 147 Obs. A married woman cannot contract bo as to make herself Liable at law (aliter in equity, as to her separate estate; Vansittart t>. Vansittart, 2 De (i. & J. 249); her coverture is a defence to her if sued on such a contract. Post, see " Cov- erture." [See 1 Chitty PI. 465, notes.] A husband as a general rule is not liable upon the contracts of his wife entered into by her during coverture, un- less she be proved by the plaintiff to be hisagent to contract for him. which is a question for the jury upon all the facts « »f tit*- case ; Lane v. Ironmonger, 18 M. & W. 368; Freestone v. Butcher, 9 C. & P. 643; Jewsbury v. New- bold, 26 L. J. Ex. 247; such agency is revoked by the husband's death, but . not by his lunacy. [1 Cliitty Contr. (11th Am. ed.) 231 el seq. and notes.] A divorce, declaring the marriage void at, initio, destroys the implied agency of the wile as to subsequent contracts. During cohabitation there is a strong presumption that the husband assents to his wife's contracts, with reference to such matters as are usually under the control of a wife, as the supply of necessaries for his household or other goods which he permits her to receive at his house, and for the hiring of ser- vants, &c. suitable to the station in life, which the husband or the wife, by his permission, assumes; Ruddock v. Marsh, 1 H. & N. 601; Jewsbury V. Newbold, 26 L. J. Ex. 247; Reid v. Teakle, 13 C. B. 627; [1 Chitty Contr. (11th Am. ed.) 234 et seq. and notes; Eames v. Sweetser, 101 Mass. 78;] and her agency is presumed during cohabitation, even though she have been guilty of adultery ; but such presumption may be rebutted, as by proof that the husband disapproved of and repudiated her acts, or that credit was given to the wife and not to the husband ; Jewsbury v. Newbold, supra, or that the husband gave express notice to the plaintiff not to trust his wife. [1 Chitty Contr. (11th Am. ed.) 235-239, and notes.] But a husband is not liable upon a bill or note signed by his wife without his express authority, nor for money lent to her, though it be expended by her for necessaries, for the supply of which he would have been liable. Knox v. Bushell, 3 C. B.N. S. 334; [1 Chitty Contr. (11th Am. ed.) 240, and notes.] A man who cohabits with a woman, and allows her to pass as his wife, incurs the same liabilities during such cohabitation as though he were her husband. Ryan v. Sams, 12 Q. B. 460; Gomme v. Franklin, 1 F. & F. 465. After separation. — The presumption of agency ceases and the onus lies on the tradesman to show either an express or implied authority from the husband to the wife to pledge his credit. When a husband wrongfully turns his wife away, or compels her by his cruelty to leave his roof, ami she has no means of her own, and is unable to maintain herself, she has authority of necessity to pledge his credit for necessaries ; Johnston v. Sumner, 3 H. & N. 261 ; [1 Chitty Contr. (11th Am. ed.) 241 et seq. and cases in notes.] If husband and wife part by mutual consent, and she has no means of her own, and the husband makes her no allowance, a jury may infer that her husband meant that his credit should be pledged; lb. ; Jenner v. Hill, 1 F. & F. 269; but no such authority can be implied where they part on terms negativing such authority and making some provision for her not shown by the plaintiff to be insufficient; lb.; Mallalieu v. Lyon, 1 F. & F. 431; and the wife's ob- taining an order for protection under the 20 & 21 Vict. c. 85, discharges the husband from liability for necessaries. Tempany v. Hake will, 1 F. & F. 438. But if a wife elope or be absent from her husband without his consent, or be ex- pelled from his roof, on the ground of her adultery, or if whilst living apart from her husband under such circumstances as would render him liable for necessaries supplied to her she commits adultery, in neither of these cases is the husband liable. Iletherington v. Graham, 6 Bing. 135; 3 M. & P. 399; Manby v. Scott, 1 Sid. 109; Atkyns v. Pearce, 2 C. B. N. S. 763; Cooper v Lloyd, 6 C. B. N. S. 519; [1 Chitty Contr. (11th Am. ed.) 348 et seq. and notes.] Parties to actions as plaintiffs — irli< n they may sue alone or jointly. — During cov- erture a woman cannot be sole plaintiff, even though her husband be an alien and has left the country; Stretton v. Busnack, 1 Bing. N. C. 139; Barden v. Keverberg, 2 M. & W. 61 ; or he be an alien enemy; De Wahl v. Braune, 1 H. & N. 178; or has absconded or become permanently resident abroad : Wil- DECLARATIONS OM CONTBACTS. HUSBAND AND WIFE. p . . , Bii \ 292; Boggett r. Frier, 11 East, 301; or they be living apart under a deed of separation; Marshall v. Button, 8 T. R. 545; under :t judicial separation. Lewis v. Lee, 8 B. & C. 291. But if the liUfband 1 w, she can maintain an action alone for causes of .•nt to the husband becoming so. Co. Litt. 133; and see Ex ! . |; 762; Carroll v. Blencow, 4 Esp. 27. If . . pued tti the wife dum sola, she must be joined, and t l lt . J,,.. mnol BUe alone. So, also, if she is executrix or administra- trix, whether before or after marriage. Thomson v. Pinchell, 11 Mod. 177. pstein r. Clarke, 4 T. K. 616; Middlemore v. Goodall, Cro. Car. there a - in which, at the election of the husband, she may or may ined as co-plaintiff with him; as, where the cause of action com- I before marriage, bu1 was not completed until after; Com. Dig. iron an.l F. x.: as where a bill or note is given to her dum sola, but oe due and payable until after marriage, even though the wife have not indorsed it: McNeilage v. Holloway, 1 B. & Aid. 218; and on a md, bill, or promissory note given to her after marriage. Philliskirk p. I\ rckwell, 2 M. & S. 898; Burrough v. Moss, 10 B. &C. 558; Mason v. M g in, 2 Ad. & E. 80. So, if it appear by the declaration that she has an interest in the cause of action, an account stated to her and her husband may be declared on by both. Johnson v. Lucas, 1 El. & Bl. 659. B i husband and wife may sue jointly to recover dividends arising from stock purchased with the wife's own earnings, and registered in her name. Dalton r. Midland Ry. Co. 13 C. B. 474. joinder or non-joinder frequently affects a right of set-off. Thus, if the wife be not joined the defendant may set off a debt due from the husband, ami if the wife be joined a debt due from her dum sola may be set off. Bur- rougb '•• Moss, 10 B. & ('. 558. If the wife sue alone on a contract made with her during coverture for a cause of action in which she has an interest, the defendant can only object to the D-joinder of her husband by plea in abatement. Dalton v. The Midland Ry. Co. IS C. B. 474; Bendix v. Wakeman, 12 M. & W. 97; Guyard v. Sutton. 3 C. 11. 153 ; Morgan v. Cubitt, 3 Ex. 612. If she is wrongfully joined with her husband the defendant may demur; John- I ts, 1 El, & Bl. ) Where the wife is the meritorious "•. x. V.; Wills v. Nurse, 1 cause of action she maybe joined as plain- Philliakirk v. Pluckwell, 2 M. till' in an action on a contract made with her ">pkii an, 7 limvl. 360; during her coverture, as for her personal l B. A Aid. 680; France V. skill ami labor; but her interest in the debt or claim must distinctly appear. Bidgood v. hi, connl i- sustainable if it be Way, 2 131. R. 1236 {ante, 148, Obs., and icwife bad an interest in the ante, 149, note (x). on, aa that the account was (c) Presumptive evidence of the mar- eraing moneys payable to her riage sufficient. Tracev v. M'Arlton, 7 Dowl. marriage. Johnson v. Lucas, 1 El. & 532 ; Chit. Head. ; Chit. jr. Contr. Both must be sued in this case. A debt from or DECLARATIONS ON CONTRACTS. INDEMNITY. 151 whilst she was sole and unmarried to the plaintiff, for goods sold and delivered by the plaintiff to the said [Mary], and for [state any other debt, as ante, 33, ^substituting the name "Mary" fur "the defendant"]. And the plaintiff claims £ . 8. Against Husband and Wife on a Bill accepted by her before Mar- riage. Ante, 85, Form 29. 9. Against Husband and Wife on a Judgment obtained against the Wife. Dick v. Tolhausen, 4 H. & N. 695. 10. Against Husband and Wife, Administratrix or Executrix. A count may easily be formed from the directions given as to Form 5. INDEMNITY. Obs. — As to contracts of indemnity, see, in general, Chit. Contr. index, " Guar- anties." They are express or implied; when express, they are by parol, or by deed or bond, and in some cases must necessarily be in writing, in com- pliance with the statute of frauds. See Observations, ante, 137, " Guaran- ties ; " Spark v. Heslop, 1 El. & Bl. 5G3; Batson v. King, 4 H. & N. 739 ; Thomas v. Cook, 8 B. & C. 728. [On the question whether a promise by a surety, or other person, to a third party to indemnify him if he will become surety for the principal, is within the statute, the authorities are divided. See Thomas v. Cook, 8 B. & C. 728; Batson v. King, 4 H. & N. 739; Jones v. Shorter, 1 Geo. 294 ; Chapin v. Merrill, 4 Wend. 059 ; Chapin v. Lapham, 20 Pick. 467; Bessig v. Britton, Sup. Ct. Missou. Feb. Term, 1875, 2 Cen- tral Law Journ. 296; Cripps v. Ilartnoll, 2 B. & S. 679; S. C. 4 B. & S. 414; Smith v. Say ward, 5 Greenl. 504; Dunn v. West, 5 B. Monr. 382; Lucas c. Chamberlain, 8 B. Monr. 276; Jones v. Letcher, 13 B. Monr. 363; Holmes v. Knight, 10 N. H. 175; Draughan v. Buntin, 9 Ired. 10; Brown v. Adams, 1 Stew. 51; Green v. Cresswell, 10 Ad. & E. 453; Aldrich v. Ames, 9 Gray, 76; Wildes v. Dudlow, 23 W. R. 435; 2 Central Law Journ. 317.] Express contracts must be declared upon according to the nature of the par- ticular instrument, and the terms of the contract. See an instance, Spark i;. Heslop, supra. In many cases the law implies a promise of indemnity, as for instance, to an accommodation acceptor or indorser of a bill, or maker of a note; Reynolds v. Doyle, 2 Scott N. R. 45; 1 M. & G. 753; by a principal to his surety or bail; Toussaint v. Martinnant, 2 T. R. 100, 104; Jones v. Or- chard, 16 C. B. 614; [Holmes v. Weed, 19 Barb. 128;] by one surety to his co- surety; Thomas v. Cook, 8 B. & C. 728; Davies v. Humphreys, 6 M. & W. 153, 168; Knight v. Hughes, 3 C. & P. 467; by a principal to his agent in the exercise of his authority to do lawful acts, or those not known to be or apparently unlawful; Westropp v. Solomon, 8 C. B. 345; Toplis v. Grane, 7 Scott, 620, 643; 5 Bing. N. C. 636; Betts v. Gibbins, 2 Ad. & E. 57; Collins v. Evans, 5 Q. B. 820; Preston v. Peeke, [El., Bl. & El. 336; Powell v. New- burgh, 19 John. 284; Hill v. Packard, 5 Wend. 375; Rogers v. Kneeland, 10 Wend. 219; Greene v. Goddard, 9 Met. 212; Stocking v. Sage, 1 Conn. 522; D'Arcy v. Lyle, 5 Binn. 441 ; Ramsay *;. Gardner, 11 John. 439 ; Gowen v. Emery, 18 Maine, 79; Jacobs r. Pollard, 10 Cush. 287; Moore v. Appleton, 26 Ala. 633; Acheson v. Miller, 2 Ohio (N. S.), 203. It is otherwise as to an act known to be illegal or immoral. See Kneeland v. Rogers, 2 Hall, 579 ; promise by husband and wife after mar- Taunt. 212 ; Pittam v. Forster, 1 B. & C. riage cannot be laid. Morris v. Norfolk, 1 248. DECLARATIONS ON* CONTRACTS. INDEMNITY. A : .! 181; Stone v. Hooker, 8 Cowen, 154; Hodsdon v. u en l. U3; Churchill v. Perkins, 5 Mass. 341; Aver v. Ilutelnns, Johnson, 43 Vt. 78;] by a lessee to his under tenant: Grifl Daubuz, 5 El. & Bl. 746; against a distress by the superior mdlord for rent due to him; Bancock v. Caffyn, 8 Bing. 358; Bnant v. Richer 16 I • B. 354; >* tlie underlease is by deed ; Schlencker v. M by the assignee of a lease to his assignor against ,f rent, and non-performance of covenants running with the it,-' Burnett v. Lynch, 5 B. & C. 589 ; Groom v. Bluck, 2 Scott N. R. 665; : Smith v. Peat, 9 Ex. 161; Humble v. Langston, 7 M. & W. other instances of implied indemnities in the following forms and nol ., ~ . , nn t for " money paid," ante, 28-33, is generally sufficient to the principal debt which the plaintiff has been compelled to pay; iver r. Burton, 17 Q. B. 989; Sleigh v. Sleigh, 5 Ex.514: but to recover initial damages or costs, the declaration must be special. Seaver v. I P. 673. As to the right to recover such costs, see post, 152, f). As to the extent of liability, and how liability is discharged, i .-. •• Indemnity." I. By tfu Acceptor of an Accommodation Bill against the Party for wh »«< I r se he accepted it, for not indemnifying him. I or that iu consideration that the plaintiff would accept, for the defendant's •.inundation, a bill of exchange, dated the day of , A. d. , drawn by the defendant on the plaintiff, and requiring the plaintiff, iths after the date thereof, to pay to the order of the defendant the sum of £ , and would deliver the same, so accepted, to the defendant, in order that the defendant might negotiate the same for his own benefit, the defendant promised the plaintiff to indemnify and save harmless the plaintiff from any loss or damage by reason of his acceptance of the said bill as aforesaid; and the ] plaintiff accepted the said bill, and delivered the same, so accepted, to the defendant, for his accommodation and for the purpose aforesaid; and the said bill vras negotiated by the defendant for the purpose aforesaid, yet the defend- ant did not indemnify or save harmless the plaintiff from any loss or damage by reason of his acceptance of the said bill, and the plaintiff, as acceptor of the -aid bill, was oblige.) to pay and paid (d) to one , the holder thereof, the amount of the said bill, together with certain interest thereon, and the costs of an action brought on the said bill by the said against the plaintiff, in the whole amounting to £ , and thereby also the plaintiff incurred expenses in defending and settling the said action ; (e) and all conditions [fyc. as ante, I r,,n nis fur money paid, and on accounts stated, as ante, 33, 34]. [I like count by the accommodation drawer of a bill. Batson v. King, 4 II. vV N. 789. Count by one joint maker of a bill against the other on a cov- pajf the bilL Loosemore v. Radford, 9 M. & W. 657.] • x - to this a Collinge v. except perhaps the costs of the writ; Pierce I. '■> A.I I A- to laying v. Williams, 23 L. J. Ex. 322; but if the <• when- plaintiff has int tared without defence be undertaken at the request or with id loss, Prickel v. Bovey, the sanction of the person for whose accom- S|.:irk <-. Heslop, l El. & EL modatioo lie contracted, the costs may be lull i Ilaper, El., BL & EL -i. recovered as monev paid to his use; Beech v. 1 "i"' :t " of indem- Jones, 5 C. B. 696; Garrard v. Cottrell, 10 rubtful whether the plaintiff can Q. B. 679 ; Blyth v. Smith, 5 M. & G. 405. don against him. DECLARATIONS ON CONTRACTS. INDEMNITY. 153 2. For not indemnifying the Plaintiff as Defendant' 's Surety in a Maltster's Bond to the Crown, whereby Plaintiff's Goods were taken upon Crown Process, founded on a Judgment upon the Bond. See form in the second edition of this work, p. 134, and see a form and law, on a promise of indemnity to the plaintiff in consideration that the plaintiff would join defendant as surety in a bond of indemnity to a third person against debts of a late partnership. Thomas v. Cook, 8 B. & C. 728. [3. On a Promise to Indemnify the Plaintiff against taking up a Bill and bringing an Action upon it. (/) That in consideration that the plaintiff would pay the amount of a bill of exchange indorsed by the defendant to the holder thereof, and take up the same, and bring an action in the name of the now plaintiff against G. II., the acceptor of the said bill for the amount due thereon, the defendant promised the plaintiff to indemnify and save harmless the plaintiff from all loss and costs which he might incur by reason of such payment and of such action as afore- said ; and the plaintiff accordingly paid the amount of the said bill to the said holder thereof, and took up the same, and brought such action as aforesaid in his own name against the said G. H. for the amount due thereon, and such proceedings were had in the said action that the said G. H. obtained a verdict therein against the plaintiff, whereby the plaintiff became liable to pay his own costs and the costs of the said G. H. in the said action ; and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to enable the plaintiff to maintain this action for the breach hereinafter alleged ; yet the defendant did not indemnify and save harmless the plaintiff from the loss incurred by him by reason of the said payment or from the said costs.] 4. On a Promise to Indemnify the Plaintiff against all Costs and Expenses of an Action against A., if the Plaintiff would try such Action before another pending Action against B. for the same Debt. See form and law, Wilson v. Bevan, 7 C. B. 673. 5. Upon a Promise to Indemnify the Plaintiff if he would defend an Action against him for Money (or Goods') in which the Defendant claimed an Interest. (#) [That G. H. had brought an action against the plaintiff to recover a sum of money in the hands of the plaintiff which was claimed by the defendant; and thereupon, in consideration that the plaintiff would defend the said action, the defendant promised the plaintiff to indemnify and save harmless the plaintiff (/) See the form in Spark v. Heslop, 1 to a nominal plaintiff in case he should be un- £1. & El. 563. In Spark v. Heslop, the de- successful, Hankin v. Bennett, 8 Ex. 107. fendant's express contract was to be "an- ( pay the same, and also incurred other costs and expenses (h) in defending the said action.] 6. Pr 'se to idemnify Plaintiff from Personal Liability for JSx- i incurred in the Formation of a Company if Plaintiff would t>ih.- Share* in the Company and become one of the " Provisional C '■■■ ■ ." 1 ir that in consideration that the plaintiff would allow his name to be placed <»ii the list of the provisional committee of a projected railway com- pany, and lmld himself out as one of the provisional committee of the said company, and would take shares in the said company, and pay the de- posits thereon, the defendant promised the plaintiff to indemnify him against all personal responsibility, and hold him harmless against all costs, charges, and expenses which had been or might be incurred in the formation of and < :irr\ ing on the said company, and against all actions and suits, and all loss, or damage, or costs he might sustain by reason of his becoming one of such com- tnittf. (i) and the plaintiff accordingly allowed his name to be and the same inserted in the said list, and the plaintiff became and held himself out as of Buch provisional committee of and took shares in the said com- pany, and paid the deposits thereon ; and that A. B. afterwards sued the plain- titf for and recovered by judgment against him a debt of £ contracted by and on behalf of the said company with the said A. B. in the formation of the -aid company; and the plaintiff was compelled to and did pay to the said A. B. ili-- -aid debt of £ , and £ for the said A. B.'s costs of the said a : and the plaintiff also necessarily incurred expenses (i) in defending and Bottling the said action ; and although all conditions \_fyc. as ante, 39], yet the defendant hath not indemnified or saved the plaintiff harmless in this be- half, or reimbursed to the plaintiff the said moneys so paid and the expenses so incurred by him as aforesaid. And the plaintiff" claims £ . to when these expenses may be plaintiff was sued unsuccessfully by a claim- actually paid, see ant upon the company, it was held that the I El. & El. 563 ; ante, 148, plaintiff's own extra costs incurred in defend- ing the action were not recoverable. Lewis (i) Upon ;i similar guaranty omitting the v. Smith, 9 C. B. 610. form in italics, where the DECLARATIONS ON CONTRACTS. INDEMNITY. 155 [7. F«r not indemnifying a Surety in a Bond, in consequence of which the Surety paid the Bond to prevent a Suit. For that the said plaintiff [the surety], at the request of the said D. [the principal and defendant] and for the said D.'s proper debt, together with the said D. and one A. A., by their bond duly executed, bound themselves jointly and severally to one B. B., his heirs &c. in the sum of $ , to be paid on or before &c. and the said D. in consideration thereof, promised the plaintiff to pay the said B. B. the said sum of $ , at the time aforesaid, and thereby indemnify and save harmless the plaintiff against the bond aforesaid. Now the plaintiff says that, although the said time has long since passsed, yet the said D. has never jjaid the said B. B. the aforesaid sum of $ , nor has he in any manner satisfied the said B. B. or his heirs &c. therefor. And the plaintiff further says that after the said bond became due, and while it was still unsatisfied, the plaintiff, to prevent his goods and estate from being at- tached, and his body from being arrested, was compelled to pay and satisfy the said bond, and to spend divers sums of money in and about the premises. And so the plaintiff says that the said D., though often recptested, has not in- demnified and saved harmless the plaintiff from the bond aforesaid, but has refused and still refuses so to do.] 8. On Implied Contract to indemnify the Plaintiff as Vendor to De- fendant of Mining Shares against Future Calls on such Shares. Walker v. Bartlett, 17 C. B. 446 ; 18 C. B. 845, S. C. in error. Equity will enforce a contract for indemnity in such a case. Cheale v. Kenward, 4 Jur. N. S. 984 ; 3 De G. & J. 27. 9. On an Implied Contract by a Landlord to indemnify his Under- tenant against payment of G-round-rent. (Je) For that the defendant held certain premises as tenant thereof to A. B., at the yearly rent of £ , payable by the defendant to the said A. B. ; and in consideration that the plaintiff would become under-tenant to the defendant of the said premises at a certain yearly rent of £ , the defendant promised the plaintiff during the continuance of the plaintiff's tenancy to indemnify and save him harmless from and against the payment of the said rent payable by the defendant to the said A. B., and from and against any distress or action, costs, charges, or expenses by reason of the non-payment thereof; and the plaintiff became and was tenant to the defendant of the said premises upon the terms aforesaid. And all conditions (I) \_fyc. as ante, 39], yet the defend- (k) Where the underlease to the plaintiff against outgoing tenant on a contract for .i by deed, the remedy is on the express cov- the transfer of tenancy and purchase of enant for quiet enjoyment, or that implied plant, &c. at a valuation : held to be a con- by the word " demise " (post," Landlord and tract within the statute of frauds for an in- Tenant)," as there is no other implied con- terest in land. tract of indemnity. Schlenckor v. Moxey, 3 (/) The payment of the plaintiff's rent to B. & C. 789. Assignees of a bankrupt tin- the defendant is not a condition precedent, der-tenant may maintain an action for breach Briant V. 1'ilcher, 16 C. B. 354, where see a of an implied contract of indemnity for dam- form of declaration and pleas; and see other age to bankrupt's estate. Hancock v. Caffyn, forms and law, 2 Chit. PI. 7th ed. 230 ; 8 Binir. 358. See a form in Hodgson v. John- Bandy v. Cartwright, 8 Ex. 913; Ridley v. son, El., Bl. & El. 685, by an incoming Plymouth Baking Company, 2 Ex. 711. DECLARATIONS ON CONTRACTS. INDEMNITY. ant did not perform his Baid promise in this, that during the continuance of the . . . ,. tenanti a a distress was lawfully made by the said A. B. on the the plaintiff upon the said premises for £ for arrears of the said ,1 payable by the defendant to the said A. B. And the plaintiff Bpelh-.l. in onlrrto iv.Uvm his goods, to pay, and necessarily paid [or I t ] lt . . :t i,l g Is <-f the plaintiff were sold under the said distress to ■v"]. the Baid sum of £ for rent and £ for the costs and ex- jaid distress; and the plaintiff also suffered great trouble and . . uid incurred expenses in getting rid of the said distress. [Add •• money paid " (m) and on an account stated, as ante, 35, Form 2.] 10. For not ind< mnifying the Plaintiff, who assigned a Lease held by him to tli. /'.''■ ndant, against the Covenants, and alloiving the Plain- I / /,. left on the Premises, to be distrained. Groom v. Black. 2 M. & G. 567; post, " Landlord and Tenant." 11. On an Indemnity to a distraining Broker if he would seize Goods I pp ..., d to be privileged, showing Damage by Actions brought at the Suit of the Owners. Toplis v. Grane, 5 Bing. N. C. 636; 7 Scott, 620; Preston v. Peeke, EL, BL vv EL 836 j and see a form in tort. Rawlings v. Bell, 1 C. B. 951; imson '•. Jarvis, -1 Bing. 66 ; and post, Tort, " Fraud." 1:!. On 'in Indemnity to a distraining Broker, given by a Landlord on the Representation that Rent was due from his Tenant, showing Spt cial Damage by Reason of the Tenant bringing an Action. I xv. Bailey, 6 M. & G. 193 ; [Ibbett v. De Salle, 30 L. J. Ex. 44; 6 II. vv N. 238.] * 13. On Covenants to Indemnify. The declaration should be framed on the covenant, showing that defendant by deed [after reciting, fyc. if the covenant requires explanation by the recitaT] • oanted with the plaintiff that [fyc. stating shortly the terms of the covenant], that the plaintiff was damnified, that all conditions have been performed, and that th<- defendant has not indemnified the plaintiff [as in the preceding forms], S< • forms of declarations on covenants of indemnity. Saward v. Anstey, 2 Bing. 519; Amory v. Brodrick, 5 B. & Aid. 712; 2 Chit. R. 329, S. C. ; . W< Mi. 1 B. & C. 29 ; Nash v. Palmer, 5 M. & S. 374; [Haddon '. /Lyres, I BL & EL 118.] By administrator for not indemnifying intestate list annuity granted to third party. Carr v. Roberts, 5 B. & Ad. 78. For Dot indemnifying the plaintiff against liabilities incurred by him under a for- iii. -r deed. Gillett >: Abbott, 7 Ad. & El. 783. Against the vendor of an abject to B mortgage on his covenant to indemnify the plaintiff, the pnrcha _- inst payment of the mortgage debt. Allard v. Kimberley, 12 (m) Where tbe plaintiff redeems his goods Moore v. Pyrke, 11 East, 52; but see this lymenl to the ground landlord of de- case observed upon in Rodgers v. Maw, 15 fendant'i rent, he can sue for money paid ; M. & W. 444, 448. [See England v. Mars- 1 o. Partridge, B T. I;. 808 ; alitt r, where den, L. R. 1 C. P. 529 ; S. C. 35 L. J. C. P. the _ ) in the ship called , and on the freight (y) thereof, beginning the adventure upon the goods and a from the loading thereof on board the said ship as above, until -aid goods and merchandises should be safely discharged and landed, (V) valui £ -.•• on freight and cargo, including deck load," against perils of the . tu in the policy, but it is unnecessary to enumerate all the perils insured against : when the loss is plainly attributable to only one of them, that one only (o) When the insurance is on a voyage 25 L. T. N. S. 739, 742 ; Barber v. Fleming, "a port, the ri per cent. ; and all other goods, also the ship and freight, were warranted free from average under £3 per cent, unless general, or the ship should be Btranded;(«) [and by a certain other memorandum thereunder written, it was declared that the said insurance was on goods] (t) [any other express warranties as to the ship itself, or the time or mode of its sailing, shoidd be stated here~] ; and the defendant, in consideration of certain premiums of insurance paid (or agreed to be paid) by the plaintiff to the defendant, became an insurer to the said plaintiff, and duly subscribed [or if by agent, " by one G. II., his agent in that behalf duly subscribed"] the said policy, as such insurer to the plaintiff for the sum of [£100], upon the said premises (n) in the said policy mentioned. And the said policy being made, goods (x) of great value had been and were shipped and loaded at aforesaid, in and on board of the said ship, to be carried therein as cargo on the said voyage for certain freight, (y) and that the plaintiff was [or if the policy ivere effected by him only as agent " that one A." (the principal) " was," or if there be any doubt as to the parties in whom the interest was vested, state " and that A., B., G, and D.," naming the parties probably interested, " or some or one of them, were or was " (z) then at the time of the commencement of the risk and from thence until and at the time of the loss hereinafter mentioned, interested in (s) This is the common memorandum at the foot of the policy (see Park, 20, 21, 101 ; Marsh, 240), and protects the underwriter from making good any partial loss whatever upon the class of articles first specified, and any loss under £5 per cent, on the class secondly specified, unless in either case the were incurred in consequence of a gen- eral average, or the ship be stranded ("sunk or burnt"); but, according to the case of Wells v. Hopwood, 3 B. & Ad. 34, every average or partial loss becomes a charge upon the underwriters where a stranding has taken place, whether the loss has been in reality occasioned by the stranding or not. As the memorandum is part of the policy, its contents may be so stated, without adopt- in.; the word " memorandum." As to what is a stranding, see Magnus v. Buttermere, 11 C. 15. 876. (/) The general terms of the insurance, in the printed part of the policy, are quali- fied by the insertion, either in the body or at the foot of the policy, of the words " on ship," or "on goods," or "on freight, &c." and when inserted at the foot, such memorandum is generally described as in the above prece- dent ; but in the form in the text, which states the effect of the policy to be on goods, not setting out the policy, the averment within brackets may be omitted. See infra, note (u). In some policies on goods, &c. the particular goods insured are enumerated in the margin of the policy, or by a separate declaration, in which case the averment of the insurance thereon maybe as follows: VOL. u. 11 " And the said insurance was on of rice marked , valued at £ bags of rice marked -, in the margin of the ■bags •, and -, valued at said policy enumerated, and separately valued, and the total value of the said goods and merchan- dises was thereby declared to be £ ." See an instance, Entwistle v. Ellis, 27 L. J. Ex. 105. (u) Where a policy in the common printed form on ship and goods contains a written memorandum, declaring the insur- ance to be on goods, the effect is the same as if goods only were mentioned in the policy ; Robertson v. French, 4 East, 141, per Lord Ellenborough ; and a general averment that the defendant became an insurer on the premises in the policy mentioned is proper. Baughton ». Ewbank, 4 Camp. 89; but see Entwistle v. Ellis, 2 H. & N. 549; and see Form 9, post, 168, setting out the policy ver- batim. i r) [f the policy is on particular goods, aver that such goods were put on board. De Svinonds r. .Johnston, 2 N. H. 77; De Sy- monds v. Sneddon, 2 B. & P. 153; and see Wilkinson ■•. Hyde, 27 L. J. C. P. 116. [y) Where the policy is on freight, and the loss arises before the goods are actually shipped, but after they are contracted for, declaration should be framed accord- ingly. See form, Devaux v. ['Anson, •"> Bing. N. C. 519. (z) See Obs. ante, 159; Rules on Plead- ing, Trin. T. 1853, r. 9; post, Appendix; Pirn v. Reid, 6 M. & G. 1. DECLARATIONS ON CONTRACTS. INSURANCE. i1h . :i(1 freight [<»■ " premises ,- ] insured, to the value and amount ; the n. by [him] ever insured thereon [or in a valued policy "to rolue in the Baid policy mentioned;" add, if the policy were made in the . •• and that the said insurance was made for the use aud mdonthe account of the person or persons so interested " (a)], and . ship, with the said g Is on board thereof, departed and set sail from her Baid voyage, and during such voyage, and before her lt aforesaid [or, "and during the continuance of the said ri>k." if (If risk was to continue after, or did not depend upon arrival], the p and g 1- were by the perils and dangers of the seas (b) wholly (a) ; Dixon v. Sadler, 5 M. & W. 405, 414 ; S. C. 8 M. & W. 895; Biccard v. Shepherd, 14 Moore P. C. 471, 493; Nelson v. Suffolk ;. | ■ otl <<■). •■ by tin- perils insured against," - not show all the ri-ks at si in] »1 v the risk which The ; . and not oss should !'<■ stated. Bopper, 6 El. & 111. 17^. per . U ; Montoya v. London Assurance i Ex. 4.".1 ; if any doubt, State all t: and aver that the lo-s was by sured against. The cause of uerally taken from the protest. See different causes, \ Bhip not heard of within a rea- ifter Bailing is presumed to -.- u Koster i . Reed, G B. 19 ; [Paddock v. Franklin Jns. Co. 11 ; ; Gordon /•. Bowne, 2 John. A- 10 tin- time "hen tin- loss is pre- 1 t" have occurred, Clifford v. Thom- a Mm. Ins. <'". i Maine) 4 Am. Law l; _ N 8.) 594 : Brown v. Neilson, 1 I i25.J Aa to what are losses by f- e, in general, Arnould on ; . . v. ; they mean strictly a-daroage, as by stress ofweather, wind- and waves, lightning and tempest, nds, &c. as a loss by being run 1>\ another vessel, though through Smith v. Scott. 4 Taunt. 126 : Bale v. Wash. Ins. Co. 2 Story C. C. l~6;] or through misfortune running foul : Buller V. Fisher, 3 Esp. it - e De Vinix o. Salvador, 4 Ad. & j the barratry of the master : Iley- ' ;ii-h. 2 Camp. 149; [see Waters Louisville In-. Co. 11 Peters, - by animals being killed a ship in a storm; Law- . 5 B. & Aid. Ki7 ; Gabay •• Lli I 793; i amage in a har- bor or tideway by the vessels taking the ind and bilging on the tide falling, isnot rail) a loss by peril.- of the sea, unless usual swell. Thompson >-. Whi Taunt. 227; Phillips v. Bar- ; 161; Fl tcher v. Ing] s, 2 I. ; ''i"' : Magnut - . Buttermere, 11 i lery o. New Eng. ins. It. | Then- 'may be a loss by within the policy, though remoteL caused by the negligence of the ; Walker /•. Maitland, 5 B. & Aid. 171 ; ntland, 7 B. & C. 219 ; Shore w, Bental, lb. 798, note, [3 Kent, .300, note Ins. Co. 8 Cush. 477, 496; Patapsco Ins. Co. v. Coulter, 3 Peters, 222 ; Columbia Ins. Co. v. Lawrence, 10 Peters, 507 ; Waters v. Merchants' Louisville Ins. Co. 11 Peters, 213; Copeland v. New England Marine Ins. Co. 2 Met. 432; Perrin v. Protection Ins. Co. 11 Ohio, 147 ; Henderson v. Western M. & F. Ins. Co. 10 Rob. La. 164 ; General Mut. Ins. Co. v. Sherwood, 14 Peters, 351 ; S. C. 1 Blatchf. 251 ; Hale v. Wash. Ins. Co. 2 Story, 176 ; Parkhurst v. Gloucester Mut. Fishing Ins. Co. 100 Mass. 301 ; (in which it was held that the usual marine risks include barratry of master ;) Davidson v. Burn and, L. R. 4 C. P. 117; Street v. Augusta Ins. Co. 12 Rich. 13 ; American Ins. Co. v. Insley, 7 Penn. St. 223 ; Georgia Ins. & T. Co. v. Dawson, 2 Gill, 365 ; Ha- gar v. New Eng. M. M. Ins. Co. 59 Maine, 460; Mathews v. Howard Ins. Co. 1 Ker- nan, 9, 15 ; Fireman's Ins. Co. v. Powell, 13 B. Mon. 311; Potter v. Suffolk Ins. Co. 2 Sumner, 197 ; St. Louis Ins. Co. v. Glasgow and Missouri Ins. Co. v. Glasgow, 8 Missou. 713, 725 ; 2 Arnould Ins. (2d Am. ed.) 767, et seq. :] or the mistake of the master, beinj; of competent skill when the policy was effected ; Phillips v. Headlam, 2 B. & Ad. 380; or by negligent loading. Redman v. W r ilson, 14 M. vV W. 476. It is not a loss by perils of the sea if a ship be worm or rat eaten ; Rohl v. Parr, 1 Esp. 445 ; Hunter v. Potts, 4 Camp. 203 ; [Aymar v. Astor, 6 Cowen, 266 ; 3 Kent, 300, 301 ; Laveroni v. Drury, 8 Ex. 166 ; Hazard v. New England Mar. Ins. Co. 1 Sumner, 218, 228; S. C. 8 Peters, 557 ; Garrigues v. Coxe, 1 Binn. 592, is contra;] or be sunk by another English ship, mistak- ing her for an enemy and firing on her. Cul- len ;;. Butler, 5 M. & S. 461. A sale of goods by the master for defraying the neces- sary repairs of damage hy storm to the ship is not a loss of the goods. Sarquy v. Hob- son, 2 B. & C. 7; 4 Bing. 131, S. C. ; hut see Parfitt v. Thompson, 13 M. & W. 392. As to what is a stranding, Magnus v. Butter- mere, 11 C. B. 876 ; loss by seizure or cap- ture, Kleinwort v. Shcpard, 1 El. &, El. 447; Powell v. Hyde, 5 El. & Bl. 607 ; Lozano v. Janson, 28 L. J. Q. B. 337 ; [2 El. & El. 160 ;] loss by restraint of princes, Crow v. Falk. 8 Q. B/467. DECLARATIONS ON CONTRACTS. INSURANCE. 163 lost, (c) and did never arrive at aforesaid, whereby the plaintiff lost the freight of the said goods (d) [or if the loss were by capture, " were on the high 6eas, with force and arms and in an hostile manner, captured, seized, and taken by certain enemies of our lady the now queen"]. And although all con- ditions precedent have been performed, and all events have happened, and things exist, and periods of time have elapsed to entitle the plaintiff to a per- formance by the defendant of his contract, and to entitle the plaintiff to main- tain this action, (e) yet the defendant has not paid the plaintiff the said sum (c ) As to this, see Hills v. London Assur- ance Company, 5 M. & W". 569; Benson v. ( lhapman, 7 Scott X. R. 625 ; Rosetto v. Gur- nev, II C B. L76; Moss v. Smith, 9 C. B. 94*; Ralli v. Jtmson, 6 El. & Bl. 422; Lo- zano v. Janson, 28 L. J. Q. B. 337; Man ning v. Irving, supra ; Irving v. Manning, supra. A partial loss may be recovered on a declaration claiming a total loss. Gardi- ner r. Croesdale, l W. Bl. 198; Benson v. Chapman, 8 ('. B. 950 ; [Watson v. Ins. Co. of N. Amer. 1 Binn. 47.] A loss may be total or partial; a total loss may be actual or constructive ; if the thing insured is cither totally destroyed, or so damaged as to be worthless, and the adventure thereby wholly frustrated, it is a total loss; so if the thing, though existing in fact, is lost for all useful purposes, so as to justify the assured in aban- doning all his interest in it to the insurer, this is a constructive total loss. And the fact that possession may possibly be resumed by the owner will not reduce it to a partial loss ; the subject of insurance must be in ex- istence under such circumstances that the assured may, if he please, have possession, Mid may reasonably be expected to take possession of it ; M'lver v. Henderson, 4 M. & S. 576; Holdsworth v. Wise, 7 B. & C. 798 ; Lozano v. Janson, 28 L. J. Q. B. 337 ; 3 Kent Com. 318. [As to abandonment; by the English law, even although the facts were such as to justify the assured in giving notice of abandonment at the time he did so, yet he cannot insist on such notice, and re- cover as for a total loss, if the thine- insured be restored, before he commences his action, in such a state that he may reasonably be expected to take possession of it. 2 Arnould Ins. (2d Am. ed.) 994. But by the law in the United States, an abandonment once rightfully made is conclusive, and the rights following from it are not divested by any subsequent events which may change the situation of the property. 3 Kent, 324, 325 ; Bradlee v. Maryland Ins. Co. 12 Peters, 378 ; Peele v. Merchants' Ins. Co. 3 Mason, 27 ; Lovering v. Mercantile Ins. Co. 12 Pick. 348; 2 Arnould Ins. (2d Am. ed.) 993, 994, and cases in note (1). It is a general rule in the United States, that if the ship or e-ooiU injured be damaged to the extent of more than half the value, by any peril in- sured against, the insured may abandon and recover for a total loss; for if the ship or cargo be damaged so as to diminish their value above half, they are said to be con- structively lost. " The rule," says Mr. Chan- cellor Kent, "came from the French law, and is to be found in the treatise of Le Guidon, where it is applied to the case of goods, and in respect to both ship aid cargo, the rule has been incorporated into Ameri- can jurisprudence." 3 Kent, 329 ; 2 Arnould Ins.' (2d Am. ed.) 1052, note (1) and cases cited: Cettell v. Alliance Ins. Co. 10 Gray, 144, 154. See Wallerstein v. Columbia Ins. Co. 44 N. Y. 204, 217; Lockwood v. San- gamo Ins. Co. 46 Missou. 71.] Auy destruc- tion or injury arising to part of a cargo of goods all of the same species, as a cargo of linseed, does not amount to a total loss of part, but a partial loss of the whole ; but this is not so where the insurance is upon any kind of goods, and several distinct parcels of goods of different species are shipped, or where there are several parcels of goods, and each is the subject-matter of a separate insurance. Entwistle v. Ellis, 2 H. & N. 549 , Duffv. Mackenzie, 3 C. B. N. S. 16; Wil- kinson v. Hyde, 3 C. B. N. S. 30 ; [Newlin v. Ins. Co. 20 Penn. St. 312; Ralli v. Jan- son, 6 El. & Bl. 422, 446 ; Kettell v. Alli- ance Ins. Co. 10 Gray, 144, 154 ; Hernandez v. Sun M. Ins. Co. 6 Blatchf. 317 ; Silloway v. Neptune Lis. Co. 12 Gray, 73, 85 ; Wal- lerstein v. Columbia Ins. Co. 44 N. Y. 204, 216 ;] as to what amounts to a total loss of freight ; Moss v. Smith, 9 C. B. 94 ; Michael v. Gillespy, 2 C. B. N. S. 627 ; [Philpott v. Swann, 1 1 C. B. N. S. 270, 282 ; Allen v. Mercantile M. Ins. Co. 44 N. Y. 437, 441 ; Lord v. Neptune Ins. Co. 10 Grav, 109; Parsons v. Manuf. Ins. Co. 16 Grav, 463, 468 ; Potter v. Rankin, L. R. 5 C. P. 341, 374, 379.] Upon an insurance on profits of a cargo against perils of the sea, no liability attaches upon the underwriters unless the profits themselves are lost by a peril insured against, and therefore not in a case where the carrying ship is lost, but the cargo is safely delivered by auother vessel, or where the vessel is lost before any goods are put on board. Halkead v. Young, El. & Bl. 312; [Abbott v. Sebor, 3 John. Cas. 39; Smith v. Revnolds, 1 H. & N. 221 ; Chope v. Reynolds, 5 C. B. N. S. 642; Wilson v. Jones, L. K. 2 Ex. 139, 146; 3 Kent, 273.] (d) As to what is a total loss of freight. ('hope v. Reynolds, 5 C. B. N. S. 642; Michael v. Gillespy, 2 C. B. N. S. 627; 26 L. J. C. P. 306. (' ) As to the general averment of per- formance of conditions precedent, Bamber- ger v. Commercial Credit Mutual Assurance Society, 15 C. B. 676 ; ante, 39. \u[ DECLARATIONS ON CONTRACTS. INSURANCE. at upon the policy cannot be added ; but a count for recover back the premium upon a contract implied Pleading Rules, T. T. 1853, r. 1 ; post, Appendix. any ground for claiming a return of the premium, (/) . mi for money hud and received, and on an account stated, as -•] is) 'icy insuring against damage payable by the ship-owner for Thompson v. Reynolds, 7 El. & Bl. 172; Taylor v. Dewar, 5 B. & ring against seizure and detention, for a toted loss caused by Fowler v. Scottish .Murine Ins. Co. 18 C. B. N. S. 818.] i Policy of Insurance upon Goods, to Recover a Particular Average. (A) For thai the plaintiff by a policy of insurance \8?c. as in preceding form, //is of the policy, that the defendant subscribed the policy, the ■ sailing of the ship with the goods on board, and the plaifitijf's "/.*. . absolute destruction of the thing insured be brought in the name of will amount to a total loss. Navone v. II.nl- ime the policy was ef- don, 9 C. B. 30. [As to the meaning of principal for whose " particular average," seethe great Indian ; Martin v. Peninsula Ry. Co. v. Saunders, 1 B. & S. ■ ■ 1 1 Chuty PL 9, note 41 ; Oppenheim v. Fry, 5 B. & S. 348 ; Kid- iould sue where the policy stony. The Empire Marine Ins. Co. Lim b * 8 ' a,l(i «'■ i has be- L.K.I C. P/535- 2 lb 357] DECLARATIONS ON CONTRACTS. INSURANCE. 165 8. For a Total Loss of Part of the Goods, where the Policy contains a Memorandum against Particular Average. Jansou v. Ralli, 6 El. & Bl. 422 ; and see Entwistle v. Ellis, 2 H. & N. 549. 4. On a Policy of Insurance upon Goods, to recover for a General Average Loss. For that the plaintiff by a certain policy of insurance caused himself to be insured, lost or not lost, at and from to , upon certain goods in the -hip , beginning the adventure upon the said goods from the loading thereof od board the said ship as above, until the said goods should be safely discharged and landed, valued [$' c -] at £ , against the perils of the seas [fyc. as in the policy~\, and the said goods were warranted free from average unless general, or the ship should be stranded, and the defendant in considera- tion of certain premiums [fyc. as in Form 1, showing that the defendant sub- scribed die policy, the shipment of the goods, the interest therein, and the sailing of the ship with the goods on board, as in Form 1, and then proceed as follows :] And that during the said voyage and the continuance of the said risk, the said ship, with the said goods on board the same, was by perils of the seas, and the perils insured against, brought into great distress and in danger of being lost, wherefore the master and crew of the said ship, for the general safety and pres- ervation of the said ship and the goods and merchandise on board thereof dur- ing the said voyage, were necessarily obliged to cut away and did cut away and cast into the sea, masts, yards, sails, cables, anchors, ropes, and buoys of and belonging to the said ship, whereby they were lost ; (i) by reason whereof the plaintiff, in respect of his interest in the said goods so insured, became liable to bear and pay a proportionable part of the value of the said masts, yards, sails, cables, anchors, ropes, and buoys, so lost as aforesaid, and thereby sustained a general average loss, amounting to a large sum of money, to wit, the sum of £70 by the hundred for each and every £100 so by him insured as aforesaid, whereby the defendant became liable to pay to the plaintiff the sum of £70, for and in respect of the said sum of £100 so by him insured as afore- said. And all conditions have been performed [_8fc. as in Form 1, to the con- clusion']. 5. Upon a Voyage Policy on a Ship for a Total Loss. [For that on the day of A. D. , the plaintiff was the owner of the ship John, then lying in the harbor of ; and the said company [the defendants], in consideration of a premium therefor paid to them by the plaintiff, made a policy of insurance on the said ship, for a voyage from the said to Cadiz, in Spain, and at and from said Cadiz to her port of dis- charge in the United States, (k) and thereby promised to insure for the plain- tiff ien thousand dollars upon the said ship, for the said voyage, against the perils of the seas, and other perils, in said policy mentioned ; and the plaintiff («') See several forms of averments of Lindsay v. Janson, 4 H. & N. 699 ; [Whit- average losses, 2 Chit. PI. 148 ; and see the well v. "Harrison, 2 Ex. 127 ; Meigs v. Mut. eases referred to, ante, 133, note (/). Mar. Ins. Co. 2 Cush. 439; Bramhall v. (k) As to when a ship has arrived, see Sun Mut. Ins. Co. 104 Mass. 510. | LABATIONS ON CONTRACTS. INSURANCE. dd ship did on the day of , a. d. , sail (I) from the voyage described in said policy, and whilst proceeding there- in !ht . perfla of t! wrecked and totally lost ; (m) of which the the Baid insurance company, on the day of , a. d. . md were bound to pay the same on demand [or in sixty days] ; have never paid Baid sum of ten thousand dollars, though requested though sixty days have .lapsed). / hit Massachusetts Practice Act : 1st. On a Ship for a Total Loss. laintiffsays the defendants made to him a policy of insurance, a \|,i,h i- hereunto annexed, for the sum often thousand dollars, on the »hip John, against the perils of the seas, and other perils therein mentioned, in n, Boston to Cadiz, in Spain, and at and from Cadiz to her port in the Inked States; and while proceeding on said voyage, the was wrecked and totally lost by the perils of the seas; and the defendants had noti Jaid loss on the day of , and were bound to pay the amount of Baid loss to the plaintiff, within sixty days after said notice; and the defendants owe the plaintiffs therefor the said sum often thousand dollars. 2 /. For a Partial Loss and Contribution to General Average. [Stat--, as in the last count, to the description of the voyage inclusive.] A ; in said policy the defendants agreed that in case of any loss or misfor- tune to Baid ship, it should be lawful for the plaintiff and his agents to labor : md in the defence and recovery of said ship, and that the defendants would tribute to the charges thereof in proportion as the sum assured by them should be to the whole sum at risk. And while proceeding on said voyage said ship was, by perils of the seas, dismasted, and otherwise damaged in her hull, rigging, and appurtenances, and it was necessary, for the preservation of said ship and her cargo, to throw a pari of her cargo, and the same was thrown over for that purpose, and the plaintiff was obliged to expend the sum of two thousand dollars for repair- ing' -aid ship at Cadiz, and the sum of five hundred dollars as a contribution for the 1"-- occasioned by throwing over a part of said cargo; and the ship red much other damage that was not repaired at Cadiz; and the defend- had notice of said loss and charges, on the day of , and were bound by the terms of said policy to pay the same within sixty days after Buch notice, and the defendants owe the plaintiff therefor the sum of dollars.] the words " lost or not lost" are & C. 799; Lozano v. Janson, 28 L. J. Q. B. in almost all policies, it is not ncc- 337 ; [2 El. & El. 160J ante, 163, note (c) ; : that the ship sailed alter the Manning v. Irving, 1 C. B. 168; Irving v. Peppin v. Solomons, Manning, 2 lb. 784; 6 lb. 391 ; [1 II. L. Cas. BnstOW, 6 Taunt. 287;] Moss v. Smith, 9 C. B. 94; [Fam- tunl, 2 New R. 308. worth v. Hyde, 18 C. B. N. S. 835;] as to •' ' ' her moorings before loss by abandonment, Knight v. Faith, 13 ig, the averment should be to that ef- Q, B. 649; as to amount of damage recov- . 2 March Rep. erable when vessel injured and repaired, see Manning v. Irving, and Irving v. Manning, what amounts to a total loss, supra. [As to what expenses maybe taken loi S Kin.-. N. C286, per into account, Farnworth v. Hyde, L. R. 2 A' B.j Boldaworth p. Wise, 7 B. C. P. 204.] DECLARATIONS ON CONTRACTS. INSURANCE. 167 G. Upon a " Time'''' Policy of Insurance of a Ship. Michael v. Tredwin, 17 C. 15. 551 ; Gibson v. Small, 1G Q. 15. 128; 4 H. L. Cas. 353 ; Milward v. Hibbert, 3 Q. B. L20 ; Fawcus v. Sarsfield, 6 El. & Bl. 1 92; Thompson v. Hopper, lb. 172; Michael v. Gillespy, 2 C. B. N. S. 627; [Hollingsworth v. Brodrick, 7 Ad. & El. 40; Russell v. Thornton, 4 H. & N. 788; Tobin v. Harford, 13 C. 15. X. S. 791.] 7. Upon a Policy of Insurance of a /Ship against Fire. Baines v. Woodfall, 28 L. J. C. P. 338. As to what is a loss by fire for which underwriter is liable, see Gordon v. Rimington, 1 Camp. 123; Busk v. Ro} r al Exchange Assurance Company, 2 B. & Aid. 72 ; Boyd v. Dubois, 3 Camp. 133. [7a. Form prescribed by 3Iassachu setts Practice Act. — For a Total Loss of Cargo by Fire. And the plaintiff says the defendants made to him a policy of insurance for the sum of ten thousand dollars, on the cargo of the brigantine William, against the perils of fire and other perils therein mentioned, at and from Bos- ton, and in a voyage from thence to Hamburg, or any other port or ports in the north of Europe ; and while said brigantine was proceeding on said voy- age the cargo was totally destroyed by fire ; and the defendants had notice of said loss on the day of , and were bound by the terms of said policy to pay the plaintiff the amount of said loss, and the defendants owe the plain- tiff therefor the sum of ten thousand dollars.] 8. Upon a Voyage Policy upon a Ship, to recover a General Average Loss paid by Ship-owner to Owner of Goods thrown overboard. Milward v. Hibbert, 3 Q. B. 120 ; [Miller v. Titherington, 6 H. & N. 278.] For that [state the making of the policy on the ship, defendant's subscription thereof, the plaintiff's interest, §c. as ante, 165]. And that the said shij) (after the making of the said policy, and) during the said risk, departed and set sail on her said voyage with divers goods on board thereof to be carried therein on freight upon the said voyage ; and that during the said voyage the said ship, having the said goods on board, by the perils of the seas, became leaky, strained, and distressed, whereby it became necessary, for the preservation of the said ship and cargo, and for the benefit of all concerned therein, to lighten the said ship, and throw part of her cargo overboard, whereupon the master of the said ship, for the purpose aforesaid, cast and threw overboard part of the said cargo, to wit, , of the value of £ , which was thereby lost. By reason whereof the plaintiff, in respect of his interest in the premises insured, became liable to bear and pay, and necessarily paid a proportionable part of the value of the said goods so lost as aforesaid, and thereby sustained a general av- erage loss of £ upon the premises insured by the said policy so valued as aforesaid, at £ [or, " being of the value of £ "] ; and in consequence thereof the defendant became liable to pay to the plaintiff £ , being the defendant's proportion of the said average loss in respect of the said sum of £ by him assured as aforesaid. And all conditions precedent have been LABATIONS OX CONTBACTS. INSURANCE. U1 ,l (J] have happened and exist, and all periods of time : to entitle the plaintiff to a performance of the defendant's con- . and to enable him to maintain this action. Yet the defendant hath not . to the plaintiff the Baid sum of £ . it. Upon a Policy of Insurance upon a Ship and Goods, setting out the Policy vr rhat i hi. (ji) 1 :■ that the plaintiff [or if the policy were effected in the name of a third aintiff's agent, add, " by one E. F., the plaintiff's agent in that behalf or it' the policy were effected in the name of a third person as agent for f and other persons interested, say, " that one E. F. as agent, as here- inafter mentioned], on the day of , a. d. , caused to be made a tin policy <'f insurance with certain memoranda written thereon and there- under, in the words and figures following, that is to say [here set out t fie policy 'It nil its blanks, and with the memoranda, marks, and figures upon ii : nml it una/ be useful iii some cases to set out the policy as printed with its b, written in black ink-, and the memoranda, marks, fyc. in red ink, with ,n, averment as follows: ••and that the words of the said policy copied above in red ink air written in the original policy, and the rest of the policy is printed.' 1 - Balkead v. Tonng, 6 El. & Bl. 312-315.] And the defendant, in consideration of certain premiums of insurance paid to him by the plaintiff, me an insurer to the plaintiff, and duly subscribed [or "by one , his agent in that behalf, duly subscribed"] the said policy, as such insurer to the plaintiff for the sum of £ , upon the premises in the said policy mentioned. And the plaintiff says that divers goods (o) were shipped and loaded on board the -aid Bhip at aforesaid, to be carried therein upon the said voyage. [ //• re "'■ /• the interest in the premises insured, and that the policy was effected I'm- the person int '-rested, and the sailing and loss of the ship and cargo, and w ni of performance of conditions precedent, and breach of contract, as ante, I'd. 162, Form 1.] 1". Upon a J'"!iry of Insurance upon Money expended for Provisions and Stores for the Use of Emigrants, and Money advanced on / • iffht. Kleinwort v. Shepard, 1 El. & El. 447; Wilson v. Martin, 11 Ex. 684. 11. / pon a Policy of Insurance upon Advances for Repairs and Dis- bursements. linbank v. Fenning, 11 C. B. 51 ; Stainbank v. Shepard, 13 C. B. 418; held not an insurable interest, the advance having been made under an invalid hypothecation bond. \1. I !■ -a -I Policy of Insurance upon Freight due under a Charter- party. Horncastle v. Stuart, 7 East, 400. Dolicv was trader Beal it must ferred to in the Obs. ante, 159, as to the i- in the cases re- mode of' suinp: public insurance companies, (o) Ante, 161, note (x), 163, note (c). DECLARATIONS ON CONTRACTS. INSURANCE. 169 13. Upon a Policy of Insurance upon Freight due under an Agree- ment. Truscott v. Christie, 2 B. & B. 320. 14. Upon a Policy of Insurance upon Advances made on Account of Freight. Wilson v. Martin, 11 Ex. 684 ; Kleiuwort v. Shepard, 1 El. & El. 447. 15. Upon a Policy of Insurance upon Passage Money. Willis v. Cooke, 5 El. & Bl. G41 ; Gibson v. Bradford, 4 lb. 586. 16. Upon a Policy of Insurance upon Bounty to he allowed by the French Government to a Whaler. De Vaux v. Steel, 6 Bing. N. C. 358. [16a. Upon a Policy of Insurance Dependent on the Laying of a Sub- marine Cable. Wilson v. Jones, L. R. 1 Ex. 193 ; L. R. 2 Ex. 139.] 17. Upon a Policy of Insurance upon Profits to arise upon Goods carried as Cargo, as upon Profits of Palm Oil. Chope v. Reynolds, 5 C. B. N. S. 642 ; Smith v. Reynolds, 1 H. & N. 221. 18. Upon a Policy of Insurance upon Profits on Rice. Halhead v. Young, 6 El. & Bl. 312 : M'Swiney v. Royal Exchange Assur- ance Company, 14 Q. B. 634; and see Stockdale v. Dunlop, 6 M. & W. 224. 19. Upon a Policy of Insurance upon Money lent, on Respondentia on Ship and, Goods. Glover v. Black, 2 Burr. 1394 ; 1 Went. 431 ; 2 Chit. PI. 138. 20. Upon a Policy of Insurance on a Bottomry Bond. Simonds v. Hodgson, 3 B. & Ad. 50. 21. Upon a Policy of Insurance upon Goods and Canal Boats against Canal Risks and Navigation. Crowley v. Cohen, 3 B. & Ad. 478. 22. For Premiums of Insurance on Ships and Goods, (js) Commencement as ante, 33.] For premiums of insurance due and payable by (p) As to this count, see Jonk v. Pinsacke, written by the testator with such broker • 2 Lev. 153 ; 2 Chit. PI. 7th ed. 60; Dalzcll v. although, had it been a case of bankruptcy! Mair, 1 Camp. 534, note (a); and see Beck- the circumstances would have supported *a with v. Bullcn, 8 El. & Bl. G33. In case of plea of mutual credit ; lb. ; nor is there, the death of the underwriter there is no it should seem, any custom at Lloyd's that right, either at law or in equity, in an action in case of the death of an underwriter, pre- bv his executors against a broker for pre- miums payable to him should be retained miums, to deduct a loss en a policy under- until all his risks had run off. lb. 170 DECLARATIONS ON CONTRACTS. INSURANCE. the defendant to the plaintiff for and in respect of the plaintiff's having, at meat, underwritten and subscribed, for and on account of the defendant, p of insurance for large sums of money on ships, goods, and merchandise, by the plaintiff insured for the defendant [add counts for money paid, and on accounts stated]. II. ON POLICIES OF INSURANCE AGAINST FIRE. 1. Upon r insuring against loss or damage by fire the sum of £ on bis tin- plaintiff's dwelling-house, 'which was and is, as in the said policy de- scribed, brick built [fyc. as in policy'], and £ on household goods, and linen, wearing apparel, and printed books, and plate, -in such dwelling-house [here describe the nature of the property insured, and the premises in which it was, as in tlie policy with any express warranties as to the nature of the house <■!■ goods ( what misdescription of the prem- Ins. Co. 12 Cush. 472, 474; Joyce v. Maine a |M.]iry,see Sillem *;. Ins. Co. 45 Maine, 168; May v. Buckeye Mat. I. & Bl. 868 ; Glen v. Lewis, 8 Ins. Co. 25 Wise. 291, 306 ; Giliiat v. Paw- Lendale v. Barding, 4 H. & N. tucket Mat. Ins. Co. 8 R. I. 282 ; Stokes v. *** • ■"■■■ ■ ■ '■ !'•• as, " Insurance." [As to Cox, 1 II. & N. 533.] iption, how far a warranty (r) Or "that the plaintiff should he paid ange in the condition of the build- out of the capital stock and funds of the - Houghton v. Manuf. Mut. Ins. said company," according to the terms of 11,1 if. Co. v. the policy ; as to the effect of this clause, see n. 82; Crocker v. the cases referred to in the Obs. ante, 159, Cush. 79. Descriptive as to the mode of enforcing policies restrict- ined to the time when ing the liability to payment out of the stock ''"•I" 1 "' • || - Smith r. Mechanics* and funds of the company. I Co. 32 X. Y. 399 ; Aurora (s) As to the law on this subject, see post, P.Eddjr,5S [11.213; Schmidt v. Pleas, "Insurance." feoria Ins. I ... 41 111. 295; Blood v. Howard (t) See Obs. ante, 158. It is necessary to DECLARATIONS ON CONTRACTS. INSURANCE. 171 the making of the said policy, and during the said risk, and whilst the said policy was in force, the premises insured were destroyed by fire (u) [" which did not happen by invasion, foreign enemy, nor tumult, civil commotion, or any military or usurped power," according to the exceptions in the policy'], whereby the plaintiff sustained damage and loss on the said premises insured, to the amount [or " the several amounts "] insured thereon as aforesaid. And although all conditions have been performed and fulfilled, and all events and things existed and happened, and all periods of time have elapsed, to entitle the plaintiff to a performance by the defendants of their said contract, and to enable the plaintiff" to maintain, and nothing existed or has occurred to pre- vent the plaintiff from maintaining this action, (v) yet the plaintiff hath not out of the stock and funds of the said company, or in any other manner, been paid or made good the said damage and loss so sustained by him as aforesaid [if the policy gives an election to the defendants to reinstate, that clause must be set out in the declaration, and the following breach added here:] nor have the defendants reinstated the premises so insured and destroyed as aforesaid. And the plaintiff claims £ . (to) 2. Upon a Policy of Insurance against Fire, giving the Insurers an Option of Reinstatement in Preference to the Payment of Claims, for not properly reinstating as they elected to do. Brown v. The Royal Insurance Co. 28 L. J. Q. B. 275. ghow an interest in the subject-matter in- penses incurred in the removal of articles sured ; 14 Geo. 3, c. 48 ; such interest need insured are covered by the policy. 3 Kent, not be the absolute property. An insolvent 375. The policy covers a loss by fire occa- may insure the house in which he lives, sioned by negligence, if without fraud. Shaw though his assignees are entitled to it ; v. Robberds, 6 Ad. & E. 75 ; Goulstone v. Marks v. Hamilton, 7 Ex. 323 ; and an in- Royal Ins. Co. 1 F. & F. 276. solvent retains an insurable interest in goods (v) As to this general averment of per- concealed from his creditors. Goulstone v. formance of conditions precedent, see ante, Royal Insurance Co. 1 F. & F. 276. Ware- 163, note (e). As to the effect of a clause housemen ; Waters v. Monarch, 5 El. & Bl. that, in case of disputes touching any loss 870; [Eastern R. R. Co. v. Relief Eire Ins. or damage, the matter shall be referred to Co. 98 Mass. 423 ;] and carriers; London & arbitration, and that until the arbitrators North Western Ry. Co. v. Glyn, 1 El. & El. have determined, no action shall be brought; 652 ; [Eastern R. R. Co. v. Relief Fire Ins. Scott v. Avery, 5 H. L. Cas. 811 ; [Elliott v. Co. supra ,-] may insure goods in their posses- Corporation of Royal Exchange Assurance, sion as such, and recover the whole value L. R. 2 Ex. 237 ;] Roper v. Lendon, 1 El. & under a policy on "goods held in trust or El. 825; Worsley v. Wood, 7 T. R. 710; on commission." So a husband may insure [Hurst v. Litchfield, 39 N. Y. 377; Rowe v. goods settled to the separate use of his wife, Williams, 97 Mass. 163 ; Elliott v. Roval But of which he has the joint use with her. Exchange Ass. Co. L. R. 2 Ex. 237; Smith Goulstone v. Royal Ins. Co. 1 F. & F. 276. v. Boston, C. & M. R. R. 36 N. H. 458, 487 ;] (u) Or, if the insurance were on buildings and see ]>ost, Pleas, " Insurance," as to the partly damaged by fire, "were partly dc- non-performance of other conditions prece- stroyed by fire, &c. and the residue of the in- dent. Bured premises was rendered unsafe and dan- (w) [For like counts, see Roper w. Lendon, gerous, and were necessarily pulled down." 28 L. J. Q. B. 260 ; Pini v. Reid, 6 M. & G. If during a fire goods be feloniously pillaged, 1; Sillem v. Thornton, 3 El. & Bl. 868; insurers of the goods are liable to make good Stokes v. Cox, 1 H. & N. 320; Glen v. the loss. Levy v. Baillie, 7 Bing. 349. A Lewis, 8 Ex. 607 ; Mason v. Harvey, 8 Ex. valued policy is considered an open one if 819; Baxendale v. Harvey, 4 H. & N. 445.] the loss be not total. Damages and ex- [72 DECLAKATIOXS ON CONTRACTS. INSURANCE. HI. OX LIFE POLICIES. 1. A : ■ , ,v' ,,,. 1: ' ';'/•• on a Policy upon the Life of a Third Person. l-\>r that by a certain policy of insurance bearing date the clay of A . p. , made and entered into by and between the defendant and plaintiff, [or u by a policy of insurance [#c] made [#c] and sealed with imon Beal of the defendants " (a;)] after reciting that the said plain- having an interest in the life of T. B. of [#c], had proposed to effect an insurance thereon with the said defendants, and for that purpose had depos- with the said defendants a declaration signed by himself, bearing date tating, among other circumstances, the age and state of health of the I'. B., and had paid to the said company the sum of £ as a consider- i for the insurance of the sum therein mentioned on the life of the said T. B. for one year from [#c], and had agreed to pay the like sum, whether issured should be in health or not, on the day of in each suc- ling J ear during the life of the said T. B., (z) it was and is thereby declared that if the said T. B. should depart this life at any time within the said term ae year, or at any time within the years that should follow, provided such payments as aforesaid should have been duly made, the capital stock and funds of the said company should stand charged and be liable to pay to the plaintiff, or to his executors, administrators, or assigns, within three calendar months !• the decease of the said T. B. should have been duly notified to the direc- of the said company by declaration on oath, by the certificate of burial, . See a form against a party for making void an insurance on bis life by going beyond the limits covered bj the pol- icy, Vyse i'. Wakefield, 6 M. X: AV. 4l'2 ; 8 Dowl 377 ; S. < '. in error, 7 .M. & W, 126. [See, also, Hawkins v. Ooulthurst, 5 15. & S. 343. | (:-) By the conditions indorsed upon poli- cies it is usually provided that the policy will be void if the life assured die By his own hands (or by suicide), or by the hands of justice, or by duelling; but if any third party have acquired a l>ona fide interest therein by assignment or by legal or equita- ble lien for a valuable consideration, the as- surance to the extent of such interest shall nevertheless be valid. [See Moore v. Wool- sey, 4 El. & HI. 243, 255.] Where a person who had insured his life became bankrupt and committed suicide, it was held his as- signees in bankruptcy were not such third persons as were contemplated by such a con- dition, and that they could not sue upon the policy; Jackson v. Foster, 28 L. J. Q. H. 166 ;\S. C. in error, 29 lb. 8; [1 El. & El. 463, 470 ;] but an equitable charge to a cred- itor by a mere letter or by deposit is an as- signment within the exception, and the in- surance company are liable, even without notice of the change. Jones v. Consolida- tion Investment Assurance Co. 26 Beav. 256; Dufaur v. Professional Life Assurance Co. 25 Beav. 599. Suicide includes all vol- untary self-destruction, though not felonious, and therefore the unsoundness of the party's mind is immaterial. Clift v. Schwabe, 3 C. B. 437; Dormay v. Borradaile, 5 lb. 380; but see Dufaur v. Professional Life Assur- ance Co. supra. [In Borradaile v. Hunter, ."> M. & (I. 639, the words of the proviso iu the policy were, "if the assured should die by his own hand." He drowned himself iu the River Thames ; and the jury found that he did it voluntarily, but that he was not capable of judging between right and wrong. It was held that the proviso was not limited to acts of felonious suicide, and that the policy was void. Tindal C. J. dissented. But the jury were instructed that it must appear that the assured was conscious of the probable consequences of his act, and did it for the express purpose of destroying him- self voluntarily, Inning at the time sufficient mind and will to destroy his own life. See Hartman v. Keystone Ins. Co. 21 Penn. St. 466 ; St. Louis Life Ins. Co. v. Graves, 6 Bush, 268. In Clift v. Schwabe, 3 < !. B. 437, the words of the proviso were, ' Should commit suicide." The assured swallowed a quantity of sulphuric acid, sufficient to cause taath, for the purpose of killing himself, and died the next day iii consequence of it. It was held by Parke, Rolfe, Alderson BB. and Patteson J. to be immaterial whether h ■ was a responsible agent. Pollock C. B. and Wightman ,). dissented. But Aider- son B, Bays the words do not apply to cases in which the will is not exercised at all, as when death results from an accident or de- lirium; but when the destruction is volun- tary, though the will may he perverted. Gay o. Union &c. Ins. Co. 9 Blatchf. 142. In Dean r. American Ins. Co. 4 Allen, 90. the words were like those in Borradaile v. Hun- ter, 5 M. & G. 639, " Shall die by his own hand." The assured cut his throat with a razor. The plaintiff, however, alleged and offered to prove that the act by which the death was caused, was the direct offspring of insanity ; that the insanity was what is called suicidal depression, impelling him to take his life, and that suicide is the necessary and direct result of such insanity or disease ; but it was held that this avoided the policy. I!ut Bigelow C. J. in giving the opinion of the court, says that if the death is caused in the madness of delirium, or under any com- bination of circumstances from which it may be fairly inferred that the act of self- destruction was not the result of the will and intention of the party adapting the means to the end, and contemplating the physical nature and effects of the act, it would not be within the proviso of the policy. See Borradaile v. Hunter, 5 M. & G. 639 ; Breasted v. Farmers' L. & T. Co. 4 Hill N. Y. 73; 4 Seldcn, 299; Gay v. Union &c. Ins. Co. 9 Blatchf. 142. This subject was thoroughly discussed by Appleton C. J., de- livering the opinion of the court, in East- abrook v. The Union Mut. Life Ins. Co. 54 Maine, 224. The words of the proviso in this case were, "shall die by his owu hand." The jury found that the self-destruction was the result of a blind and irresistible impulse over which the will had no control, and was not an act of volition. It was held that this did not avoid the policy ; and the learned chief justice declares the decision to be in entire conformity with the law as stated in Dean v. American Mut. Life Ins. Co. referring to the limitation stated above. Kent J. dis- sented. See Gay v. Union Mut. Life Ins. Co. U. S.C. C.Conn.l871;2Bigelow,4,9Blatchf 142 ; Tenny v. Life Ins. Co. 1 Dillon, 403 ; S. C 15 Wallace, 580 ; St. Louis Mut. Life Ins. Co. v. Graves, 6 Bush, 268 ; 2 Central L. Journ. 651. _ The (fleet of like words : " Should die by his own hand," in the proviso of a policy of lite insurance, was the subject of decision in Breasted /•. Farmers' Loan & Trust Co. ■I Selden, 299 ; S.C. 4 Hill (X. Y.), 74. The majority of the court of appeals, three of the justices dissenting, held iu that case, that if i he insured was insane, and incapable of discerning between right and wrong, his suicide did not avoid the policy. This de- cision is at variance with the interpretation given to the same words in Dean r. Ameri 17 ARATIONS ON CONTRACTS. INSURANCE. the said policy, and during the said risk, and at the time of the : 1 . l;.. was interested in the life of the said T. B. to the full nit insured thereon as aforesaid, (a) and that during the said risk and whilst the said policy remained in force the said T. B. died ; and all conditions . been performed, and all things and events have existed and ested therein, or for whose use or benefit 01 on whose account it is made, must be inserted therein. Hodson v. Observer Life Assurance pra, but substan- ! it m;i1 &C. Ins. Co. - Mut. Life Ins. Co. L02 iction on a policy i who vol- - provided in ■ The plaintiff, " in proviso," that •' the assured at the ommittu s - struc- cted under the in- • insanity, and that his ion was the direct result ■ • judge ruled that such entitle the plaintiff to re- d a verdict for the defend- ined. Chap- ticed the above c • I consideration of the discussion of the matter, in the ited, by the dissenting jm majority, we think • this case, there is no sub- I « I diffi ■: unification between his own hand,' 'shall commit suicide,' and 'shall die by and that they include self-destruc- ander the influence of insanity, within ibove stated." See, also, White :i>h Empire Mut Life Ass. Co. L. R. I : Nimick v. Mut. Benefit Life Ins. - C.3 Pittsb. (Pa.) 293 j - 102. But if no excep- • made in the policy, it is - i le committed by the Ithough felonious Bui- ld probably avoid such a policy on i d of public policy. Morn o. stralian & Univ. F. L. Ins. Co. 7 •Inr. !.. .(. X. s. Ch. 511; 2 Bige- tuian r. Keystone [ns. Co. -21 : and the remark upon it by Hunt J. in I. Co. v. Terry, 15 Wal- livea conditioned 1. if the assured die in known vio- •i o. Mut. Hen. Life 1 J; S. C. 99 Mass. .317; Mut. Life I I o. 39 122 : I! Phoenix Ins. Co. Missou. 109; Mut. B [ns. Co. 15 V. Death Ins. Co. - " aote (r). Bv ■ ance son, or herein the person lor or on v. .ount shall have no in- ling or wagering. person inter- ety, 8 El. & Bl. 40 ; every one has an insurable interest in his own life; Waine- wright v. Bland, 1 M. & Rob. 481 ; [Campbell r. New England Mut. Life Ins. Co. 98 Mass. 381 : Provident Life Ins. & Fire Co. v. Bauni, 29 Ind. 236 ;] so has a wife in her husband's life; Reed v. Royal Exchange Assurance Co. Peake's Add. Ca. 70 ; [Thompson v. American Tontine L. & S. Ins. Co. 46 X. V. 674 ; Baker v. Union Mut. Life Ins. Co. 43 X. Y. 2S3 :] a husband in his wife's; Huck- man v. Fernie, 3 M. & W. 505 ; [see Wight v. Brown, 11 Ct. of Sess. 2d Sess. 459 ;] and a creditor in his debtor's life. Anderson v. Edie, Park Ins. 640 ; [Morrell v. Trenton Mut. Life & Fire Ins. Co. 10 Cush. 282.] Except in the above cases, an insurer's in- terest must be pecuniary ; Halford v. Kymer, 10 B. & C. 724 ; and the insurer can only recover to the amount or value of his inter- est. 14 Geo. 3, c. 48, s. 3. [Some of the cases go to sustain the proposition that one pi has an insurable interest in the life of an- other, whenever there is a reasonable | bility that he will ^ r aiu by the continued life of the latter, or will lose by his death. Mil- ler v. Eagle Life & II. Ins. Co. 2 E. D. Smith, 268, 294 ; Hoyt v. X. Y. Life Ins. Co. 3 Bosw. 440.] The interest, of a creditor in- suring his debtor's life must exist at the time of making the policy, and the fact that it afterwards ceases or is satisfied aliunde, does not vitiate the policy or prevent the creditor from recovering the amount of his intere>t at the time when he effected the policy. Dalby v. India & London Assur- ance Co. 15 C. B. 365 ; 24 L. J. C. P. 2. In this respect a policy is not in the nature of an indemnity. [If the insured had an inter- est at the time the policy was issued, it is not ssary that he should have one at the time of the death. See Hebdon v. West, 'i B. & S. 579, 581 ; Rawle v. American Mut. Life Ins. Co. 27 X. Y. 2S2 ; Mowrv v. Home Ins. Co. 9 R. I. .346; Ins. Co. v. Bailcv, 13 Wallace, 616, 619 ; Robert v. New Eng.Mut. Life Ins. Co. 2 Disney, 106 ; Loomis v. Eagle Life Ins. Co. 6 Grav,*396, 401 ; Law v. Lon- don Indisputable L. P. Co. 1 K. & J. 223. So it is not necessary that a bona fid* as- signee of a policy, valid in its origin, should have any interest in the life insured. Walton r. National L. F. L. Ass. Soc. 22 Barb. 9; S. C. 20 N. Y. 32; St. John v. American Mut. Life Ins. Co. 13 X. Y. 31] A policy of insurance on the lives of cattle is an in- surance on lives within 55 Geo. 3, c 184. Attorney Gen. v. Cleobnry, 4 Ex. 65. [As to what is an insurable interest and amount ■. Hebden v. West, 32 L. J. Q. B. 85; 3 B. & S. 579-1 DECLARATIONS ON CONTRACTS. INSURANCE. 175 happened, and all periods of time have elapsed, to entitle the plaintiff to pay- ment of the said sum of £ , and to maintain this action for the same ; yet the plaintiff has not been paid or satisfied the said sum of £ , or any part thereof, out of the capital stock and funds of the said company or otherwise, and the same is wholly due and in arrear and unsatisfied. [Add count for mono/ had and received, and account stated, as ante, 34, 35.] And the plain- tiff claims £ . 2. Upon a Policy of Insurance on the Life of a Third Person against an Insurance Company, setting the Policy out verbatim. (6) For that by a policy of insurance made by the defendants \_or " signed by of the directors, and sealed with the common seal of the said company," according to the mode of execution] it was agreed between the plaintiff and defendants as therein contained; and the said policy is in the words and figures following, that is to say [here set out the whole of the policy verbatim, with the conditions or such of them as are material; see ante, 168, 172-175]. And the plaintiff says that the person in the said policy called "A. B." and "the assured" was the plaintiff; and that the company called "The Com- pany" were and are the defendants [aver the plaintiff's interest in the life and the death of the said , the life insured, whilst the policy was in force, and the performance of all conditions precedent, and the non-payment of the sum assured, as in Form 1]. 3. By Executors against an Insurance Company upon a Policy of Insurance under Seal effected by the Testator on his own Life. Commencement as ante, 13, Form 23.] For that the said company, by a policy of insurance under their common seal, dated [4*c], covenanted with the said 0. P. (the testator), that they, the said company, or their successors, if their corporate funds, property, and effects for the time being, including the amount of capital subscribed for, and not paid up, if any, after satisfying all prior claims and charges thereon, should be sufficient for the purpose, and if the current premium should have been paid, and the other regulations in- dorsed thereon should have been observed by the person entitled to the benefit of that assurance, would, within two calendar months next after satisfactory proof should have been made according to the rules, regulation, and practice of the said company for the time being, of the death of the said 0. P., pay unto his executors or administrators the full sum of £ sterling, and all such other sums, if any, as the said company, by their directors, might have ordered to be added to such amount by way of bonus or otherwise, according to their practice for the time being : provided always, that that policy was made subject to the conditions and regulations thereon indorsed ; and the said conditions and regulations indorsed upon the said policy were, amongst others, as follows : [here set out such of the conditions as amount to warranties, or exceptions to the defendants' liability, or relate to acts or events which are con- ditions precedent] and the said 0. P. afterwards and during the said risk, and whilst the said policy was in force, departed this life; and that all the condi- (b) See another form where the policy is Society, 3 C. B. N. S. 622. [See Hodson v set out verbatim, Pritchard v. Merchants' Observer Life Ass. Co. 8 El. & 131. 40.] & Tradesmen's Mutual Life Insurance 176 DECLARATIONS ON CONTRACTS. JUDGMENTS. _ daturas indorsed upon the said policy were observed and per- . conditions have been fulfilled, and all events have happened : . and a l| periods of time have elapsed, to entitle the plaintiffs, as have tlic said sum of £ paid to them as execu- L; \.t the Baid plaintiffs have not been paid the said sum of the said policy, and the same still remains wholly due and UI1 . . And the plaintiffs, as executors as aforesaid, claim £ . | . ; M ;ill , tester & London Life Assurance Ass. 3 B. & S. 917.] L / Assignees of a Bankrupt upon a Policy effected by him iili" n his own Life. I .-. The British Equitable Assurance Co. 6 C. B. N. S. 437 ; Jack- 1 EL & EL 463; ante, 173, note (z 2 ). IV. ON POLICIES OF INSURANCE AGAINST DEATH OR INJURY BY ACCIDENT. forms of declarations and law in the following eases: Hooper v. The A« cidental Death Insurance Company, 29 L. J. Ex. 340; [5 H. & N. 546;] Tiv.v .-. The Railway Passengers' Assurance Company, 5 H. & N. 211 ; 29 L. J. Ex. to what is accidental death, Shilling v. The Accidental Death [nsurance Company, 2 H. & N. 42; 27 L. J. Ex. 16; Theobald y. The Railway 1' -' Assurance Co. 10 Ex.45; Simpson v. The Accidental Death Insurance Co. 2 C. B. N. S. 257. [As to what is an accident, see - .lair r. Maritime &c. Co. 30 L. J. Q. B. 77.] An insurance against the death of a third person by accident is within the 14 Geo. 3, c. 48, s. 2, as to interest. Shilling v. The Accidental Death Insurance Co. 1 F. & F. 116, and V. ON POLICIES OF INSURANCE AGAINST COMMERCIAL LOSSES. B rger v. The Commercial Credit Mutual Assurance Society, 15 C. B. S Lvency Mutual Guarantee Society v. York, 3 H. & N. 588. ON JUDGMENTS. — An action of contract is maintainable upon judgments, although the trans- tion in its origin was wholly unconnected with any contract, the law imply- in the legal obligation, a contract or promise on defendant's part, to pay the Bum recovered; 3 151. Com. 163; [1 Chitty Contr. (11th Am. ed.) 87,88;] B 1 v. Smyth, 9 M. & W. 810, 818; as upon judgments of the superior he inferior courts of record in this country; Read v. Pope, 1 Cr., M. : Williams v. Jones, 13 M. & W.-628; 2 D. & L. 680; but an U nol maintainable in the superior courts on judgments of the modern rts; Austin v. Mills, 9 Ex. 288; Berkley v. Elderkin, 1 El. & Bl. li county courts on the judgments of the superior courts. 19 & ■> 7. ■ lies upon tin* judgment of a foreign court; Walker v. Witter, I Hall v. Odber, 11 East, 118; Smith v. Nicholls, 5 B. & C. 208; 7 Meeug v. Thellusson, 8 Ex. 638; Reynolds v. Fenton, 3 C. ''•• ::: [1 Chitty Contr. (11th Am. ed.) 87, and note (.?/);] unless it be • natural justice, or to the law of the country in which the judg- piven, country where the original contract was made; Bee- McCarthy, 2 B. cV Ad". 951; Novelli v. Rossi, 2 B. & Ad. 737; Rei- DECLARATIONS OX CONTRACTS. JUDGMENTS. 177 Obs. mers v. Druce, 23 Beav. 145; Barber t>. Lamb, 8 C. B. X. S. 95; 29 L. J. C. P. 231; Sheehy »-. Professional Life Assurance Co. 3 C. B. X. S. 397; Cam- mell v. Sewell,":; II. & X. 670; [Messina v. Petrococchino, L. R. 4 P.O. 1 ii;J as upon an Irish judgment; Harris v. Saunders, A B. & C. ill; Sheeny v. Professional Life Assurance ('<>. supra; upon a Scotch decree for costs; Douglass v. Forrest, I Bing. 686; i M. & P. 663 ; Russell v. Smyth, 9 M. & W. 810; Cowan v. Braidwood, l M. & G. 882; Patrick v. Shedden, 2 El. & Bl. 1 i; Robertson o. Struth, 5 Q. 15. 951; a colonial judgment or decree find- ing a sum certain due to the plaintiff as a balance on partnership accounts, and ordering payment thereof to the plaintiff; Henderson v. Henderson, 6 Q. B. 2S8; 2 Chit.* PI. 7th ed. 305; Henly i>. Soper, 8 B. & ('. 16; on the judg- ment of a court baron; Dawson r. Gregory, 14 L. J. Q. B 286; on a decree of the high court of chancery for payment of a specific sum founded on equitable considerations only. Henderson v. Henderson, supra; Carpenters. Thornton, 3 I!. & Aid. 52; Henly v. Soper, 8 B. & C. 20. [It, has, however, recently been held that it is no bar to an action on a judgment of a foreign court, in personam, that it appears on the face thereof, that the foreign tri- bunal has put a construction on an English contract, which was erroneous according to English law. Godard v. Gray, L. R. 6 Q. B. 139. See Houl- ditch v. Donegall, 2 CI. & Fin. (Am. ed.) 470, note (2) and cases cited ; Uon t7. Lippmann, 5 CI. & Fin. (Am. ed.) 1, and note (4); 1 Chitty Contr. (11th Am. ea.) 87, note (//).] An action is not generally maintainable on mere interlocutory orders or decrees of courts of law or equity; Carpenters. Thornton, supra; Fry v. .Malcolm, 4 Taunt. 705; Patrick v. Shedden, supra; Sheehy v. Professional Lite As- surance Company, 2 C. B. N. S. 211, and supra; or upon a rule of court or upon a judge's order; Dent v. Basham, 9 Ex. 469; even though made by con-_ sent, and containing an undertaking on defendant's part to do some act; Hookpayton v. Bussell, 10 Ex. 24 ; The Thames Iron Works &c. Co. v. Patent Derrick Co. [1 Johns. & H. 93;] 29 L. J. Chanc. 714 ; but an action lies on the final order of the privy council for payment of the costs of an appeal. Hutchinson v. Gillespie, 11 Ex. 798. In an action on a judgment debt, the writ may be specially indorsed under Com. L. P. Act, 1852, s. 25, and final judgment signed if the defendant does not appear. Hodsoll v. Baxter, 28 L. J. Q. B. 61, Ex. Ch. [Verdict for plaintiff in action for personal injuries. Judgment signed after his death is regular. Common Law Procedure Act, 1852, s. 39. Kramer v. Waymark, L. R. 1 Ex. 241.] Costs. — In an action upon a judgment recovered in any court in England or Ireland, the plaintiff is not entitled to costs, " unless the court in which such action on the judgment shall be brought, or some judge of the same court shall otherwise order." 43 Geo. 3, c. 46, s. 4. This does not apply to actions on judgments of nonsuit, &c. recovered by defendants. Bennet v. Neale, 14 East, 343. The plaintiff will not in general be allowed his costs if he might have issued execution or realized his judgment by other means. AVood v. Silleto, 1 Chit. Rep. 473; Hanmer v. White. 12 M. & W. 519; Mason v. Nicholls, 14 M. & W. 118. Alder where defendant has acted vex- atiously by pleading a false plea; Samuel v. Barker, 5 Taunt. 264; or the defendant has no goods, and the original judgment debt was under £20, so that the defendant could not be taken in execution. The application for an order for costs cannot be made at nisi prius; Jones v. Lake, 8 C. & P. 395 ; but must be made in the first instance to a judge at cham- bers, not to the court; Claridge v. Wilson, 26 L. J. Ex. 246; by summons, or rule nisi, supported by affidavit; Rcvell v. Wetherell, 3 C. B. 321 ; it ought not to be granted ex parte. Lomax v. Berry, 2 H. & N. 12 7. As to proceed- ings upon judgments by writ of revivor, see C. L. P. Act, 1852, s. 131, 132 ; post, Appendix. 1. On a Judgment of either of the Superior Courts at Westminster. Commencement as ante, 5. The venue must be laid in Middlesex, (c)] For (c) In actions on judgments of courts of tions on foreign judgments the venue 'may l>c record the venue is local and must be laid laid in any county. in the county where the record is ; in ac- VOL. II. 12 |78 LABATIONS ON CONTRACTS. JUDGMENTS. that the plaintiff, on the - day of- -. a. d. , in the court of Q. B. i i • "Ex. of Pleas"'] at Westminster, by the consideration and judgment of th< mrt, recovered against the defendant the sura of £ , bis costs of suit, whereof the defendant was convicted, (e) h judgment still remains in force unreversed and unsatisfied, and upon which the plaintiff hath not obtained any execution or satisfaction. And the plaintiff claims i." •(.' I 2. | . df Foreign or Colonial Courts, or Inferior ( 'ourt8 of Record. in- of declarations in the several cases referred to in the Obs. supra. [3. ( 'ount on a Judgment of a French Court. That "ii the day of , a. d. , in the Empire of France, in a suit depending between the now plaintiff and defendant in the court of , being a court of the said empire duly holden, and having jurisdiction in that behalf, the plaintiff recovered against the defendant by the judgment of the court, and according to the laws of said empire, the sum of francs, which is equivalent in money of the United States to $ , and which the dow defendant was by the said court adjudged and ordered to pay to the now plaintiff; and the said judgment is still in force and unsatisfied. Lih counts. Valine v. Dumergue, 4 Ex. 290; De Cosse Brissac v. Rath- bone, 6 II. & X. 301. ( './///,/ on a judgment obtained in a French tribunal of commerce by the repre- sentative of the deceased er re- and recover of the defendant the balance due xrdam i- not necessary. thereon and interest, is sufficient on de- fy") | A declaration, setting forth the recov- murrer. O'Neal v. Kittredge, 3 Allen, 470. DECLARATIONS ON CONTRACTS. LANDLORD, ETC. 179 Like counts. Douglas v. Forrest, 4 Bing. G8G ; Cowan v. Braidwood, 1 M. & G. 882; Patrick v. Shedden, 2 El. & BL 14. Count for costs awarded by a decreet of the court of session in Scotland in a suit for divorce. Russell v. Smyth, 9 M. & W. H10. Count on a judgment of the court of queen's bench in Ireland. Sheehy v. Professional Life Assurance Co. 13 ('. B. 787. Count on a colonial judgment. Kobertson v. Struth, 5 Q. B. 941. On a decree of a colonial court of equity. Henderson v. Henderson, 6 Q. B. 288.] LANDLORD AND TENANT. Obs. — At common law a demise, except of incorporeal hereditaments, such as of a right to shout, Bird v. Higginson, 6 Ad. & E. 824, or fish, Jones v. Rey- nolds, 4 Ad. & E. 805, or a demise of tithes, Gardiner V. Williamson, 2 l>. & Ad. 336, need not have been in writing. But by the statute of frauds (29 Car. 2, c. S, s. 1), all leases, estates, interests of freehold, or terms of years, or any uncertain interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only; and shall not, at law or in equity, have any greater effect, notwithstanding any consideration for mak- ing such parol leases or estates. As to the sufficiency of a memorandum under this section, see Bayley v. Fitzmaurice, 8 El. & Bl. 664; 27 L.J. Q. B. 143, Ex. Ch.; affirmed in House of Lords, 8 W. R. 750. Section 2 excepts " all leases not exceeding the term of three years from the making thereof, where- upon the rent reserved to the landlord, during such term, shall amount unto two-third parts at the least, of the full improved value of the thing demised." By the 8 &9 Vict. c. 106, s. 3, it is enacted, " that every lease, required by law to be in writing, of any tenements or hereditaments, made after the 1st day of October, 1845, shall be void at law unless made by deed." But an instrument, though void as a lease, governs the terms of the holding: and at the end of the term the tenant is bound to quit without notice. Tress i>. Sav- age, 4 El. & Bl. 36; Lee v. Smith, 9 Ex. 662, 665, per Martin B.; Parker v. Taswell, 2 De G. & J. 559; 'Looker 'v. Smith, 1 H. & N. 732 ; [Bond v. Ros- ling, 1 B. & S. 371; Tidy v. Mollett, 16 C. B. N. S. 298.] No action lies against a lessee under a parol demise for not entering. Edge e. Strafford, 1 C. & J. 391. Until the passing of the Com. L. P. Act, 1852, which dispensed with the necessity for mentioning the form of action in the writ, there were nice distinc- tions as to the proper form of action to be adopted. Where the contract was not under seal, either assumpsit or debt was the remedy. Thus, when the action was for rent due on a lease executed by the lessee, either debt or cov- enant might be maintained by the lessor or hi* assignees, or representatives against the lessee or his assignees, or representatives; with this exception, that where the landlord had accepted rent from the assignee, and had thus recognized the assignment, he could not sue the lessee in debt. 1 Saund. 241 ; 2 Saund. 29 7; 1 Chit. PI. 7th ed. 126., Where the claim upon a lease was not for rent, an action thereon by the lessor or lessee, or by or against either of their personal representatives, must have been in covenant. Though these technical forms of action are now abolished, where the contract is under seal, it must be declared upon according to its terms and legal effect. Sec an exception. Form 3, post, 1*4. But counts on the contract may be joined with any other claim a landlord may have against his tenant, as in tort for waste. &c. See Marker v. Kenrick, 1 :i ('. B. 198. The renin is transitory in actions on leases founded on the privity of contract between the parties, as by the lessor or his personal representatives against the lessee, or by the lessee against the lessor; by the assignee of the rever- sion against the lessee, or by the lessee against the assignee of the. rever- LABATIONS ON CONTRACTS. LANDLORD, ETC. rion. Bui the venue is local where the cause of action arises out of the .,,,1 not by reason of the privity of contract, as by the of tin- lessor against the lessee; by the lessor or his per- r the assignee of the reversion againstthe assignee of inst the executor oi the lessee where the executor is charged : and by the assignee of the lessee against the lessor. 1 Saund. l Chit. PL 7th ed. 284. See, as to the statement of md the consequences of misstating it, ante, 2. Obs. (d). In Boyes v. Hewitson, 2 Bin". N. C. 575 ; 7 ('. & P. 127, S. C; in a local action of cov- in on a lease' the plaintiff laid the venue in a wrong county, but as the locality of the premises did no1 appear on the declaration and no issue was raised thereon, li was decided that the defendant was not entitled to a non- suit: the defendanl ought, it seems, to have pleaded that the venue was , laid. Richards v. Easto, 3 D. & L. 515. if the objection appears upon tin- record it seems that defendant may demur. Simmons v. Lillystone, - Ex. 131; Mayor of Berwick upon Tweed v. Shanks, 3 Bing. 459; 16 &17 I he .; aund. 112 h, note (1); lb. 234; though since the Com. L. P. Act, l- -. probably a general averment that the reversion was assigned to the plaintiff might Buffice, subject to an application to the court as above; and Obs. DECLARATIONS ON CONTRACTS. LANDLORD, ETC. 181 to tin- disadvantage, that on a traverse of Bucb averment the plaintiff would ll( ' compelled to be prepared at the trial with evidence of the whole title- whereas, if be deduced the title step by step, the proof mighl be narrowed by a pari only of the title being put in issue by the defendant. See post, 198, note (A). As to the mode of describing the estate and quantity of interest, and showing the derivation of title, see Steph. 4th ed. 334, 842; i Chit. PL 7th ed. [ndex, Title Pleaded. In deducing a title it is the established rule, that conveyances are to be pleaded as they operate. Per Parke B Price v. Williams, j M. ,v W. i i : Moore v. Earl of Plymouth, 5 B. cSc Aid. 70. Thus, it a deed operate in law as a surrender, it should be pleaded as such, though it purport to be a conveyance. 1 Saund. 235 b, note (9). Use axd Occupation. — As to this count, see, generally, [1 Chitty Contr. (llth Am. ed.) 510 el seq.;} Woodfall's Landlord and Tenant; Rose. Evi- dence. At common law an action of debt was maintainable for use and oc- cupation, even though there was an actual demise, if not under seal; Gibson v. Kirk, 1 Q. B. 850; and by 11 Geo. 2, c. 19, s. 14, it is enacted, "that it shall be lawful Eor a landlord, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occu- pied by the defendant in an action on the case (i. e. assumpsit), for the use and occupation of what was so held or enjoyed ; and if in evidence on the trial oi such action, any parol demise, or any agreement (not being bv deed), whereon a certain rent is reserved, shall appear, the plaintiff shall not there- fore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered." See per Holroyd J. Hall v. Burgess, 5 B. & C. 333. [Assumpsit for use and occupation of land, by permission and assent of the plaintiff, on an express promise to pay a certain sum, or in general to pay to the plaintiff's satisfaction for such use, lies at common law Independent ly of this statute. Eppes v. Cole, 4 Hen. & M. 171. It also lies on an implied promise. See 1 Chitty Contr. (llth Am. ed.) 511, note (x 1 ) and cases cited ] lhis count may be used though there be an express written demise not bein^ by deed. But the plaintiff can only recover according to the terms of the express contract. Collett a. Curling, 10 Q. B. 785; Watson v. Kino- 3 C B. 603 ; but see Smith v. Eldridge, 13 C. B. 236. If there be a demise under seal, the plaintiff must declare for rent on a demise, as post, Form 3, or on the covenant for payment of rent, as post, Form 4; [Warren v. Ferdinand 9 Allen, 357; Richards v. Killam, 10 Mass. '243; Codman v. Jenkins, 14 Mass! 93;] but a lease under seal executed, but never delivered so as to operate as a lease, will not defeat the action for " use and occupation." Gudgen v. Bes- sett, 6 El. & Bl. 986. Where there is a written agreement or demise, it must be produced by the plaintiff duly stamped, and parol evidence of the ten- ancy is not admissible; and if it appear on his own showing, or on cross- examination of his witnesses, that there was such writing m reference to the claim in question, and plaintiff did not produce and prove it, duly stamped, he. will be nonsuited (if never indebted has been pleaded).' See Brewer 1?. Palmer. 3 Esp. R. 213; Ramsbottom 0. Tunbrid^e, 2 M. & S. 434- Hodges r. Drakeford, 1 New R. 273; Fenn 0. Griffiths,°6 Bing. 533. If' however, the plaintiff can get through his case without disclosing that fact, it is no ground of nonsuit if it afterwards appears that there is such a written agreement; Fry v. Chapman, 5 Dowl. 265; and the defendant cannot then put in such written agreement without producing it stamped. Fielder v. Ray 6 Bin- 332; Rex v. Inhabitants of Padstow, 4 B. & Ad. 208. This count may be used whether a specific rent were agreed upon, or the rent is claimed on a quantum meruit. Collett 0. Curling, ubi supra. The action is one of contract, and is founded on the relation of landlord and tenant, and it requires evidence of an occupation by the permission of the plaintiff, and under a contract, with him. Churchward v. Ford, 2 II. & N. 446- 26 L. J. Ex. 354; Sloper 0. Saunders, 29 L. J. Ex. 2 75; [5' II. & N. 964- Boston v. I'.inuey, 11 Pick. 1; Featherstonhaugh v. Bradshaw, 1 Wend. 134- Smith v. Stewart, 6 John. 46; O'Conner v. Tyves, 3 Rich. 276; Ward v Ball, 1 Branch, 271 ; Stoddert v. Newman, 7 Harr. & J. 252; Vandenheuvel v. Storrs, 3 Conn. 203; Bancroft V. Wardwell, 13 John. 489; Levi v Lewis 9 C. B. X. S. 872. 876 ; Tew v. Jones, 13 M. & W. 12 ; 1 Chitty Contr. (llth Am. ed. oly.] This contract may be implied in favor of a person who has a 182 DECLABATIONS ON CONTRACTS. LANDLORD, ETC. title to the premises held by the defendant, although there was no demise by the plaintiff to the defendant, and the title of the former accrued :n the defendant's Landlord pending tin- defendant's tenancy, and the de- fendant has not attorn.-. I; as in the case of a mortgagee, or a trustee, &e. . t hristmas, 10 Q. B. 135; Turner v. Cameron's Coal Co. 5 Ex. v . Gallimore, Dougl. 279; Rennie v. Robinson. 1 Bing. 147; Bur- ' Iraden, l D. & L. 218. But in such case the plaintiff must prove a legal titl.' t" the premises; Stephens v. Lynn. 8 C. & P. 389; Cornish p. J B. & C. 471 ; a contract will not be implied in favor of a person who has a men ■ title, but where there is an express demise the tenant will be from disputing the title of his lessor or his lessor's assignees. II.. k nan r. Machin, 28 L. J. Ex. 310; [4 II. & N. 716; ante, 180; 1 Chitty I nt r. (11th Am. ed.) 462, and note (f), 4G4-4G6; Towne v. Butterficld. 97 Mass. 105; Gallowaj v. Ogle, 2 Binn. 268; George v. Putney, 4 Cush. 351.] As by the assignee of a mortgagor who had subsequently to the mortgage let the defendant into possession as his tenant; Hickman v. Machin, 28 L.J. 10; [4 II. & X. 716;] and this count maybe maintained by the as- - .'i the reversion, though the demise to the defendant was by parol. S inden <\ Christmas, >d>i supra; or against the assignees of the tenant. II . . Keimeit. 3 Ad. & E. G59; Hellier v. Sillcox, 19 L. J. Q. B. 295. A ii. I where a tenant held over after his own term and that of his landlord, having applied to the superior landlord for a fresh term, and be referred to his landlord as being still tenant, and the hitter subsequently paid rent to the Buperior landlord; held, that this was evidence from which a jury might inter a contract by the tenant to pay his landlord for the occupation. Levy v. Lewi.. [6 C. Hi X. S. 760; S. C. 9 C. B. N. S. 872.] This i^ not a proper form of action to try a title in the absence of the relation ol landlord and tenant; [Boston v. Binney, 11 Pick. 1 ; Binney v Chapman, 5 Pick. 127; Codman v. .Jenkins, 14 Mass. 96; Williams v. Mayor, 6 Harr. & J. 850; W\ man v. Hook, 2 Greenl. 338;] and the presumption in favor of a contract arising from ownership on the one hand, and occupation on the other, or even from payment of rent, Knight v. Cox, 18 C. B. G45 ; Harden v. Hesketh, 4 II. & X. 175, may be destroyed by any evidence negativing a contract, as that the defendant entered under a contract with a third person; Marquis Camden v. Batterbury, 28 L. J. C. P. 335; [see Buell v. Cook, 4 Co wen, 238;] or as a trespasser; Turner v. Cameron's Coal Co. 5 Ex. 932; or adversely to the plaintiff; Tew v. -Jones, 13 M. & W. 12; [Boston v. Bin- ney, ll Pick. 1; Featherstonhaugh v. Brad-haw,! Wend. 134; Smith v. Stew- art. 6 John. 46; O'Conner v. Tyves, 3 Rich. 276; Ward v. Ball, 1 Branch, 271 : Stodderl o. Newman, 7 Harr. & J. 252;] so an intended purchaser or intended lessee who has entered under an agreement tor sale or for a lease to him, and ha> occupied beneficially, until the contract has gone off for want of title, is not on these grounds alone liable in this form for the period of his occupation up to the time of the contract going off; Winterbottom v. Ing- ham, 7 Q. B. 611; [Greenup v. Vernon, 16 111. 26; 1 Sugden V\ & P. (8th . •-'•Hi, 283; hut see Smith v. Eldridge, 15 C. B. 236; and where there is a demise of premises by a mortgagor in possession, mere notice to the tenant by the mortgagee to pay rent to him will nol make the occupier tenant to the mortgagee. Hickman v. Machin, 28 L. J. Ex. 310; [l II. & N. 716;] Cuthbertson v. [rving, [I H. & N. 742; 6 II. & NT. 135,] and supra. It suffices to establish a holding or tenancy, without showing actual occupation by the defendant; his constructive possession is enough to Bupport this count; Pinero i>. Jndson, U Bing. 206; How v. Kennett, 3 Ad. & E. 663 ; Wooley v. Watling, 7 C. & P, 610; but not unless there has been an actual entry by him; Lowe v. Ross, 5 Ex. 553; Towne v. D'Heinrich, 13 C. B. 892; aider where defendant is assignee. How v. Kennett, supra. Where two persons enter into an agreement for a lease to them, an entry by one upon the prem- ises may operate so as to render them both liable for use and occupation. Glen r. Dungey, 4 Ex. tj l . But occupation by one of two executors, of prem- ises held 1))' the testator, will not make both liable. Nation v. Tozer, 1 Cr., M. & 11. 172. One joint tenant holding over after expiration of term, will not make both liable in this form. Tancred v. Christy, 12 M. & W. 316; Draper v. Crofts, 15 M. & W. 166. One co-tenant of a house or a farm, who occupies the entirety, and takes all the profits, but without excluding his co- tenant, is not impliedly liable to his co-tenant for use and occupation. Hen- derson v. Eason, 12 Q. B. 9st> ; [Gowen v. Shaw, 40 Maine, 56. But when one tenant in common has received more than his share of the rents of the estate owned by them in common, in money, or as bailiff of the other, the lat- ter may maintain an action for his share. Sargeant v. Parsons, 12 Mass 148; Sturdivant v Smith, 29 Maine, 387; Munroe v. Luke, 1 Met. 153; liuck v. Spofford, .">l Maine, :j t ; Stinton v. Richardson, 13 M. & W. 17.] A hus- band cannot be sued in use and occupation to recover half a year's rent of premises occupied by his wife partly before and partly alter marriage. Richardson v. Hall, 1 B. & B. 50. It lies though defendant underlet; Bull i>. Sibley, 8 T. R. 327; Bertie r. Beaumont, 16 East, 33; or the premises were burnt, defendant being bound to repair, &c. Izon v. Gorton. 3 Bing. N. C. 501 ; Ibbs v. Richardson, 9 Ad. & E. 849; 1 P. & D. 61. S; Packer v. Gib- bins, 12 Q. B. 421; Bennett v. Ireland, 28 L. J. Q. B. 48; [Baker v. Holt- zapffel, 4 Taunt. 45; Davis v. Alden, 2 Gray, 313; Kramer v. Cook, 7 Gray, 550; Foster v. I'evster, 9 Cush. 247; Fowler v. Bott, 6 Mass. 63 ; Leavitt V. Fletcher, 10 Allen, 119, 121; Beach v. Gray, 2 Denio, 84; Pollard v. Shaaffer, 1 Dall. 210; Neidelt v. Wales, 16 Missou. 214; Warner v. White, 4 Harr. & J. 564;] or the premises have become unfit for occupation, or for the purpose for which they were let ; Hart v. Windsor, 12 M. & W. 68 ; Sut- ton v. Temple, lb. 52; [Libbey i>. Tolford, L8 Maine, 317; Foster r. Peyster, 9 Cush. 242, 247; Welles v. Castles, 3 Gray, 323, 326 ; Cleves v. Willoughby, 7 Hill, 83; Dutton v. Gerrish, 9 Cush. 94; Leavitt v. Fletcher, 10 Allen, 119, 121 ; Anlen v. Pullen, 10 M. & W. 321; Moffatt i». Smith, 4 Comst. 126; Royee o. Guggenheim, 106 Mass. 201, 202 ;] aliter perhaps in the case of furnished apartments infested with bugs. lb.; Smith v. Marrable, 11 M. & W. 5. [See Howard o. Doolittle, 3 Duer, nil; Dutton v. Gerrish, 9 Cush. 89, 94. In Royce v. Guggenheim, 106 Mass. 202, 203, Gray J. said: "The English authorities, ancient and modern, are conclusive, that even where the landlord is bound by custom or express covenant to repair, and by his failure to do so the premises become uninhabitable, or unfit for the purposes for which they were leased, the tenant has no right to quit the premises, or to refuse to pay rent according to his covenant, but his only remedy is by action for damages ; " and he there cites the ancient and modern authorities relied upon.] So it lies against a corporation for actual occupation by them, though there be no contract under their seal. Finlay v. Bristol & Exeter Ry. Co. 7 Ex. 409; Lowe v. London & North Western liy. Co. 18 Q. B. 632. 1^} LARATIONS ON CONTRACTS. LANDLORD, ETC. there has been an actual enjoyment, the common count is maintainable i,, at of incorporeal hereditaments; Mayor of Carmarthen r. - and even for a right of working mines; Jones v. Rey- g, E. 805; Bird u. Hiu-iiiMin, 2 Ad. & E. 096 ; or a mere personal i _ 1 , i to fish. Ilolford v. Pritchard, 3 Ex. 793; ante, 130, note (y). 1. mmon Count for Use and Occupation. (#) ,/ cu ante, 33.] For the defendant's use, by the plaintiff's permission, of messuages and lands of the plaintiff [or "of a fishery of the plaintiff," 8fc. at the case may be]. [\a. Another Form. r the use :ind occupation of a certain tenement hired of the plaintiff by the defendant.] •_'. For th Rent of Furnished or Unfurnished Lodgings. (A) For money payable by the defendant to the plaintiff for the defendant's use, by the plaintiff's permission, of rooms and apartments being part of a mes- suage of the plaintiff, with certain furniture, and effects, and chattels of the lintiff therein, and for [add account stated and conclusion, ante, 34, Form 1]. - 3. Upon a Lease for Rent, (i) For thai the plaintiff let to the defendant a house, No. 401 Piccadilly, for ii years, to hold from the day of , a. d. , at £ a year, payable quarterly, (/) of which rent quarters are due and unpaid. And the plaintiff claims £ . 4. By a Zn •-•-■>• against his Lessee on his Covenant for Non-payment of Rent, (/c) :■ thai the plaintiff, by deed, (7) let (m) to the defendant a house, land, (;/) This form is given by the Com. L. P. demise of incorporeal hereditaments; it will 1852, sch. B, 9, 1". Tin' local situation he observed the lease is not set out; see of the premises need nol be stated ; King v. 1 Saund. 276, note (1), 202, 325, note (4) ; 2 Frazi • I st, 848; Egler v. Marsden, 3 lb. 297, note (1) ; Atty v. Parish, 1 New R. i. 12S ; ])a\ is v. Edwards, 3 M. & Sel. 104, 109 ; the lease may yet be given in evi- - transitory; Kirtland v. dence to support the demand at the trial, if 2 Taunl 145; Egler v. Marsden, the demise be denied by the plea. A lease, Mortimer v. Preedy, even though cancelled, if cancelled by con- W. 604. sent of the parties after the rent accrued due, (A I l"<>r board and lodging, iinte,87. A ma\ be given in evidence. Ward v. Lumley, I and lodging is not a con- 5 H. & X. 87. an interest in land within the stat- (j) Pent is payable yearly unless other- el- Wright v. Stavart, 29 L. J. wise reserved. Gray v. Chamberlain, 4 C. & Q B i' i There is no duty on the part of P. 260 ; Com. Dig. Kent, B. 8. a lodging-houBe keeper to take care of his (/,-) The lessee is liable at all times upon Houlder v. Sonlby, 29 L. J. his express covenants contained in the lease, 1 notwithstanding he has assigned the term, (•) '■ en by the Com. L. P. and he may be sued in the above form; but • _*cli B supra, Observa- not in the preceding form on the mere » an ai lalous form ; but it is reservation of rent, where the lessor has ible to ose and occupation, adopted the assignee as his tenant by receiv- lant cannot change the venue ingrent from him. Ante, Obs. ; 1 Saund. 240 ; adopted. Herring v. Watts, 8 Wadham r. Marlowe, 1 H. Bl. 437, note ; 8 - !l I- 609. It applies East, :!14, note. i-»«i- under m-si1, except in a case of a (/) The word " indenture " would import 1 '"• '* ■-•■' ited. W'il- 1B.&C. 694 ; Isherwood v. Oldknow. 3 M. B amhall, I V. \ .1. 2; |i Chitty PI. & S. 382; Yellowly v. Gower, 11 Ex. 274; | A* to mode of describing leases Morris v. The Rhydydefed Colliery Co. •'! under powers to ll aM, see 1'ortmore v. Bunn, II. & N. 885, Ex. Ch. ; 19 & 20 Viet. c. 120. DECLARATIONS ON CONTRACTS. LANDLORD, ETC. 185 and premises, (//) situate in the county aforesaid, (o) to hold to the defendant from the day of , A. d. , for years, (p) at £ per year, payable quarterly, that is to say, ou [fyc. slating the days of -payment (y)] ; and the defendant thereby covenanted with the plaintiff to pay him the Baid rent, as aforesaid ; (r) yet two quarters of the said rent are in arrear and unpaid. And the plaintiff claims £ . 5. By Lessor against Lessee upon a Covenant to Repair, (s) For that the plaintiff, by deed, let to the defendant a house, No. 401 Picca- dilly, to hold for seven years from the day of A. D. and the defendant, by the said deed, covenanted with the plaintiff well and substantially to repair the said house during the said term [according to the covenant] ; (t) an instrument in writing under seal ; Aveline r. Whi-son, 4 M. & G. 801 ; ante, 50, note (/) ; it is not necessary to state the date of the lease ; Hall v. Cazenove, 4 East, 477 ; it i> generally unnecessary to state the parties to the deed, hut it may he so in some cases where title has to be deduced from the les- sor, or where the covenant is nut with the lessor. If thev he described, see Mayelston r. Palmerston, 2 C. & P. 474; M. & M. 6 ; Arnold o. lie von It, 1 B. & B. 433, as to the mode of description. No profert of the deed is necessary. Com. L. P. Act, 1852, s. 5.-). (//) It is unnecessary to describe the prem- ises fully. 1 Sannd. 233, note (2) ; 2 Saund. 366, note (1) ; [1 Chitty PI. 311.] A vari- ance would he amendable at the trial. (o) As to the statement of the local de- scription, &c. see supra, Obs. When the venue is transitory, it need not be stated in the declaration where the premises are sit- uate. (/>) The term for which the premises are demised should he stated. Turner v. Lamb, 14 M. & W. 412 ; 2 D. & L. 871. Some- times the habendum runs, " determinable nevertheless as hereinafter mentioned," and the lease subsequently contains a clause for determining the lease by written notice at the end of seven or fourteen years. In this case add the words, " determinable," &c. and set forth the clause alluded to in the declaration, ami after showing the lessee's entry, if the lease has been determined by the notice, show the fact as follows: "And the plaintiff avers that afterwards and dur- ing the said term of twenty-one years, to wir, at the expiration of the first seven years of the said term, that is to say, on [ MellX, 4 B. & < '. D . 7 Taunt. 646 : Baylis j, 4 C. B \ S. 537 ; 4 Jur. N. S. Mantz v. Goring, 4 • a : it' breaches are assigned on • •• nants, the damages from old !»• separately stated. Wright .1 B Ad. & I'.. 144. 14S. (u) A covenant to keep in repair is broken by non-repair during the term, though the . be not ended ; Luxmore v. Robson, 1 - 1 : and the landlord, in an ac- tion brought during the term, is entitled to than nominal damages : Bell v. Hay- • l; I . I.. Rep. 301, Q. B. ; the measure 9 in general the amount re- quired to put the premises in repair; in some cases the amounl to which the rever- I at the time of action brought by the premie a out of repair. Doe I I • P. 734 : Smith v. Peat, ed upon in Dai ies v. I'n- 2 II. ,v N. 570. As to the measure ■■ here the premises have been ; by fire, and nave to be rebuilt, I funster, 1 1 Kx. 15. In actions of _■ and condition of the prem- the time when the tenancy com- mem • onsidered. Mantz v. < ior- i.">l : Stanlej v. Towgood, v. Witl,, rs, 7 Ad. & E. r, \2 M. & W. 77. per I ! Payne v. Haine, 16 M. & W. there i~ an express and un- ■• pair and keep in r. the tenant is bound to do bo, althpugh the premises be destroyed by tire, or other nt. Paradine v, Jane, Alej n, 27 ; Bull, ck v. ] '...;.. etl '.I K. 650 ; Digby v. i I lamp. 27.") ; rule rei agnized in Bald terra, out of good and substantial £ . Spence v. Chadwick, 10 Q. B. 517, 530. " It has been the established rule of the common law for ages that an express covenant to repair binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevita- ble accident, or the act of a stranger." Gray .!. in Leavitt t>. Fletcher, 10 Alleu, 121 ; Wells v. Calnan, 107 Mass. 517, 518; Fowl- er r. Bott, 6 Mass. 63; Kramer v. Cook, 7 Gray, 550; Warren v. Hitchins, 5 Barb. 66; Proctor v. Keith, 12 15. Mon. 252; Jaques v. < iould, 4 Cash. 384, 388 ; Wilde J. in ow v. Collamore, 5 Cush. 220, 231; Allen v. Culver, 3 Denio, 294; Dermott v. Jones, 2 Wallace, 7, 8; 3 Kent, 468; Til- den v. Tilden, 13 Grav, 103, 109; Graves v. Berdan, 26 X. Y. 498; S. C. 29 Barb. 100; Womack v. McQuarry, 28 Ind. 103. But where A. agreed with B. to L'ive him the use of a music hall on certain specified days, for the purpose of holding concerts, with no express stipulation for the event of the de- struction of the music hall by tire, it was held that, upon the occurrence of such event, both parties were excused from per- formance of the contract. Tavlor v. Cald- well, 3 B. & S. 826. The principle of the distinction is stated in this case bv Black- burn J. See, also, Appleby v. Myers, L. R. 2 ( !. P. 651 ; Lord v. Cotesworth, L. R. 5 Q. B. 544, 548 ; Lovering v. Buck M. Coal Co. 54 Penn. St. 291 ; Kerr v. Merchants' Ex- change Co. 3 Edw. Ch. 315; Winton v. Cor- nish, 5 Ohio, 477; StockweU v. Hunter, 11 Met. 448; Buerger v. Boyd, 25 Ark. 441 ; Ainsworthv. Ritt, 38 Cal.*89; McMillan v. Solomon, 42 Ala. 356.] There is a distinc- tion between a covenant to kep in repair and a covenant to put in repair; in either case the tenant is not bound to substitute new for old premises; Soward w. Leggatt, 7 C. & P. 613; Belcher v. Mcintosh, 2 M. & Rob. 1st;; Maltyn v. Clue, 18 Q. B. 661, 674; but a tenant under a covenant "well and substantially to repair and keep in good substantial repair, and so well and substan- tially repaired to give up at the end of the term," is bound to give up the premises in od a state as when he took them, and it will be inferred that they were then in a tenantable state. Brown v. Trumper, 26 Beav. 11. A covenant to keep in repair, does not extend to repair of damage clone before the lease was executed, though alter the date fixed for the commencement of the term. Shaw v. Kay, 1 Ex. 412. As to the meaning of the term "habitable repair," Belcher v. Mcintosh, 8 C. & P. 720. Breach in non-repair of external walls, &c. Green v. Eales, 2 Q. B. 225. DECLARATIONS ON CONTRACTS. LANDLORD, ETC. 187 [6. Lessor against Lessee upon a Covenant to repair, subject to certain Exceptions. That the plaintiff by deed let to the defendant a house, to hold for years from the day of a. d. , and the defendant by the said deed covenanted with the plaintiff to k<< | > the said house in good and substan- tia] repair (x) during the term, casualties by lire or tempest &c. [according to the covenant] excepted; yet the said house during the said term was not in good and substantial repair, although no casualty by fire or tempest oce. [according to the covenant], happened thereto. [The covenant should be stated accurately, with all the exceptions contained in it, as, casualties by fire &c. ; Browne v. Knill, 2 B. & B. 395; reasonable wear and tear; Wright v. Goddard, 8 Ad. & El. Ill; and the breach must follow the terms of the covenant in this respect.'] 6a. For not delivering up the Premises in good Repair. That the defendant became and was tenant to the plaintiff of a messuage and premises of the jilaintiff* for a term of years from the day of , A. d. , upon the terms, amongst other things, that the defendant should, at the expiration of the said term, deliver up to the plaintiff the said messuage and premises, with all fixtures thereon, in the same state and condi- tion as they were in at the time of the defendant becoming such tenant as aforesaid, reasonable wear and tear only excepted; and the said term expired, and all conditions were performed, and all things happened, and all times elapsed, necessary to entitle the plaintiff to a performance by the defendant of the said terms ; yet the defendant did not, at the expiration of the said term, deliver up to the plaintiff the said messuage and premises with all the fixtures thereon, in the same state and condition as they were in at the time of the defendant becoming such tenant as aforesaid, reasonable wear and tear only excepted.] 7. By Landlord, on an Agreement for renting Apartments against the Tenant for not paying his Proportion of Rates and Taxes as agreed. Hooper v. "Woolmer, 10 C. B. 370. Declaration for not paying taxes. Tre- meere v. Morrison, 1 Bing. N. C. 89; Ilurst r. Hurst, 4 Ex. 571. 8. Against a Tenant for not keeping the Premises in Tenantable Re- pair, contrary to his express Agreement not under Seal. (^) For that the plaintiff let to the defendant a messuage and premises, with the appurtenances, of the plaintiff, to hold for one year from the day of , (x) A covenant in a lease to repair all & N. 793. A covenant to repair and amend buildings then standing or to be erected dnr- does not include a covenant to paint. Dar- ing the term, extends to buildings erected by lington o. Hamilton, 24 L. J. 33, V. 0. YV. the tenant daring the term, partly on the (//) The venue is transitory. Buckworth demised land and partly Oil the waste land v. Simpson, 1 Cr., M. & R. 834. See form, ^c. adjoining. Newbury in re White v. Wakley, Richardson v. Giffbrd, 1 Ad. & E. 52. It 28 L. J. Chan. 77. An assignee, though not was there held to be applicable where the de- named, is- liable to repair buildings erected fendant took the premises for three years and during the term. Minshull v. Oakes, 2 II. a quarter, and engaged to keep them in g 1 ^s \. D. LABATIONS ON CONTRACTS. LANDLORD, ETC [and bo "ii from year to year so long as they should respectively m that the- defendant should during his tenancy [put premises in good and tenantable repair [according to the ; s, t the defendant did not during such tenancy [put and] premises in good or tenantable repair, and the same h tenancy OUt of good and tenantable repair [this will depend ,'ndaiit's contract], and still are in bad and untenant- form, which may be added as a second count.~\ /• ■ • is ing the Premises in a Tenant-like Manner. (6) the defendant became and was tenant to the plaintiff of a messuage : the plaintiff upon the terms that he should use the same in riant-like and proper manner during the said tenancy; yet the defendant, during the Baid tenancy, used the said messuage and premises in an untenant- like and improper manner, (c) In. Against a '/' nant for not Repairing, §c. who held over at an in- ert /-■ / /.'• nt. hut <>ii the same Terms in other Respects as those con- tain. I in .in "hi Lease granted by Plaintiffs Predecessor. Walliss v. Broadbent, 4 Ad. & E. 877. M .._ '|'ii ,. declaration may allege that the defendant became and was tenant to the plaintiff of a messuage or farm and lands, &c. upon the terms that tating those terms of the holding which have been broken by the defend- Brown v. Crump, 6 Taunt. 300, the declara- tion srated, that in consideration that the defendant had become and was tenant to the plaintiff of a certain messuage (not adding " upon the terms," &c. as above), he prom- ised to keep it in tenantable repair, and to uphold and support, and to leave the premises in ili< state lie found them. This was held bad [after verdict), such a promise not resulting, or being implied by law, from the relation of landlord and yearly tenant. See other simi- lar instances. Granger v. Collins, 6 M. & W. 458 ; and Jackson v. Cobbin, 8 M. & W. 790. (z) If there be any condition or exception to the defendant's agreement it should be stated, ante, 185, note (s). (a) Damages for not being able to re-let may be laid and recovered. Woods v. Pope, 6 C. & P. 782 ; 1 Bing. N. C. 467. (/;) This form is founded on the promise implied by law; see supra, note (y) ; where there is no express contract as to repairs. Standen v. Christmas, 10 Q. B. 135; Colley r. Streeton, 2 15. & C. 273; White v. Reeves, i M. & (I. 95. The plaintiff would not be allowed to recover on the last count as well as on this. Holford v. Dunnett, 7 M. & W. 348 ; ante, 5, note (a) ; Dare v. Ivey, 3 G. & D. 470. (e) This amounts to an allegation of vol- untary, and does not include permissive waste. Martin o. Gilham, 7 Ad. & E. 540; post, Declarations in Tort, tit. " Landlord," &C. J and see Marker v. Kenrick, 13 C. B. 98. :-; but the agreement being unsigned, under the Statute of frauds as re- 1 the duration of the term. See an- . I lietrichsen o. < riubelei, 14 .M. & W. 845. If th or written agree- ment as to repair-, the declaration should be tided thereon. See forms 5 and 6. Where . mi-e i- not under seal, the lessor may nant on his contract to repair, al- igh the lessor has assigned the reversion, m, 5C. B. 920. As to the ility of a tenant to repair, in tile absence • spri S6 covenant or agreement, see 57 a : 2 Sannd. 352, note (7) ; [1 nt r. (1 1th Am. ed.),466 et sea. :\ per J. in Wise <■. Metcalfe, 10 B. & C. h v. Johnson, 5 C. & P. 239. 1M d r. Brow n, 6 Cowen, 475 ; I as, 1 Watts & S. 530 : 18 Maine, 318.] A yearly lant not under agreement to - I bound impliedly to keep the repair, |, t. tO keep t he . nratei tight, repair broken -. to pri nut injury ; Tor- P - I [arnett v. ind, 16 M. & W. 257 ; and the Mate of the time of the demise is rani B ird( tl ■ . Withers, 7 Ad. S !•'.. rations in Tort, " Land- lord and Tenant." There is also an implied promise to use the premises in a tenant-like manner (see m-xt form), which should in nil count in ndamagt has been wantonly done. In DECLARATIONS OX CONTRACTS. LANDLORD, ETC. 189 Dbs. ant, and assigning a breach, as in the preceding forms). In such c both i In- fact of defendant's continuing t<> bold over as tenant, and also on what terms be held over, are for the jury. Johnson v. Churchwardens of St. Peter, I Ad. & E. 526, per Lord Denman; and Jones v. Shears, lb. 137; Elgai v. Watson, l Car. & M. 194; Drurj Lane Company v. Chapman, 1 Car. &JL 14. In the absence of evidence to the contrary, a tenant under a lease hold- ing over becomes tenant from year to year, subject to such covenants in the lease as are applicable to and nol inconsistent with that species of estate. Doe v. Amey, 12 Ad. & B. 176; Thomas v. Packer, l II. & N. 669; looker v. Smith, l II. & X. 732; Clarke u. Smarridee, 7 <<>• B. 957; Hyatl v. Grif- fiths, 17 Q. B. 505; [Oakley v. Monck, S II. & C. 70G; S. C. L. 11. 1 Ex. L59;] Mayor of Thetford r. Tyler, 8 Q. B. 95; Finch p. Miller, 5 C. B. 428. And it' the breach happened during the term created by a lease under seal, the tenant could not be sued on the new implied promise to repair the premises that were in the very condition when he beca tenant, in which he is sup- posed by the implied promise to have undertaken they should never fall into. Johnson r. The Churchwardens of St. Peter, Hen-ford, 4 Ad. & E. 526. A new tenancj is not necessarily created by an increase or decrease of rent. Doe o. Geekie, 1 Car. & K. 307; 5 Q. B. 841, S. C; Digby v. Atkinson, 4 Camp. _'7."i ; Clarke r. Moore, 1 Jones & hat. 723 (Irish). One joint tenant cannot hind the other by himself holding over. Christie v. Tancred, 9 M. & W. 438; 12 M. & \V. 316, S. C; Diaper v. Crofts, 15 M. & W. 16tj. 11. Similar Form against a Neiv Tenant who came in on the Terms of the Old Holding. Arden v. Sullivan, 14 Q. B. 832; Buckworth v. Simpson, 1 Cr., M. & R. 834. Ons. — Semble, forms 8 and 9 would suffice both for this and the last case. See a form on an agreement' to farm land in the same way that an outgoing ten- ant had farmed it. Lord Hood v. Kendall, 17 C. B. 2G0. As to charging the assignee of a termor, see How v. Kennett, 3 Ad. & E. 659. Assignees of a bankrupt, Thomas v. Pemberton, 7 Taunt. 206; Hanson v. Stevenson, 1 B. & Aid. 303; Clarke v. Hume, Ry. & Moo. 207; a tenaney from year to year is a term that may vest in them by the statute, per Littledale J. in How v. Kennett, supra. And see Naish v. Tatlock, 2 II. Bl. 319. So a tenaney under a parol agreement. Slack v. Sharp, 8 Ad. & El. 366 ; 3 N. & P. 390; and see Lambert v. Norris, 2 M. & W. o'S'3. 12. Against a Tenant, for not cultivating a Farm according to the Custom of the Country, (cf) For that the defendant became and was tenant to the plaintiff of a farm, lands, and premises, situate in the county aforesaid, [or, " county of ,"] upon the terms that he the defendant should manage, use, and cultivate the said farm, lands, and premises in a good and husbandlike manner, and accord- ing to the custom of the country where the said farm, lands, and premises were situate; (e) yet the defendant did not during the said tenancy manage, use, or (d) See forms, &c. Earl of Falmouth v. not apply ; see Webb v. Plummer, 2 B. & Thomas, 1 Cr. & M. 19; Angerstein v. Aid. 746 ; Holding v. Piggott, 7 Bimr. 465 ; ITamlson, 1 Cr., M. & R. 789. This form is Roberts v. Barker, 1 Cr. & M. 808; unless the founded on the implied promise of the tenant lease be not inconsistent with the custom. of a farm. See lb.; rowley o. Walker, 5 Hutton v. Warren, 1 M. & W. 466; Clarke T. R. 373; Horsefal] v. Mather, Bolt X. 1'. v. Royston, C5 M. & W. 752; Muncey v. 11.7, S; |1 Chitty Contr. (11th Am. ed.) Dennis, I II. & N. 216. 471, 472 ; Lewis v. Jones, 17 Penn. St. 262 ; Evidence is not admissible of the cus- Bell J. in Moulton u. Robinson, 27 N. II. torn of a particular estate, or tin 1 property of 561 ; Nesmith J. in Perry /•. Carr, 44 X. II. a particular person, however extensive it 120.] Where there is a least! or particular may be, it not being shown that the tenant agreement on the subject of cultivation, the was aware of it. Womersley v. Dally, 26 rustom — and consequently this form — docs L.J. Ex. 219. |90 DECLARATIONS ON CONTRACTS. LANDLORD, ETC. cultivate the said farm, lands, and premises in a good ami husbandlike manner, ling to the Baid custom.*(/) 13, .1 5 milar Form, but alleging Specific Breaches. u ; n ( / n , , ,, form to the asterisk, and then as follows:"] In this, that defendant, daring the said tenancy, had more than one half of the said demised arable land in corn. And that the defendant omitted and neglected to have one fourth or any part whatever of the said arable land in seed eaten cattle And that the defendant suffered and permitted a small portion and much less than on- fourth of the said arable land, to be in fallow or turnips ■ any other breaches of the customary mode of farming], whereby farm and lands became exhausted, unproductive, and diminished in ie. 14 Written Demise (not under Seal) for not fallowing or man- uring ; for removing Manure, and yielding up the Lands in a De- l State, $c. (<7) I !• that by agreement made by and between the plaintiff and defendant the plaintiff agreed to let and the defendant agreed to take certain arable and other lands and tenements, to hold the same to the said defendant from the |, for the term of [three] years (h) thence next ensuing, at the yearly rent : and the defendant thereby agreed with the plaintiff that he the defend- ant would, during the said tenancy, after every crop of wheat that should be grown on any pari of the said arable land, let such land remain in fallow and out of tillage for one year at least, or sow the same either with clover, tares, pease, or beans, and if of either of the two latter description of crops should and would drill and keep the same perfectly clear; and also would in a hus- bandlike manner spend and employ in and upon the said lands thereby let, all the manure arising from the hay and straw that should grow and be made Where a declaration had this allega- &c. but, if stated, and traversed by the de- held that evidence that the fendant (see Pleas, post), it must be proved it was to farm the land in a 1ms- as laid. See Angerstein v. Handson, lCr., bandlike manner, " to be kept constantly in M. & R. 789. In Harris v. Mantle, 3 T. R. could not be received. Saunderson 307, the declaration charged that the de- 109. rhe declaration fendant had not used the farm in a husband- framed on such particular like manner, "but on the contrary thereof stipulation. An amendment at the trial may had committed waste;" aud it was held dlowed. The breach a- laid in the that it was not sufficient for him to prove \>ad cultivation. If defend- merely that defendant had used the farm ant has not cultivated the land at all, the in an unhusbandlike manner, but that the e to that effect. The breach form of allegation bound the plaintiff to by showing a breach of the prove that defendant had committed waste; mi the neighborhood; ashy ami see Edgev. Pemberton, 12 M. & W. 187; g half, no other farmer tilling more 1 D. & L.467. n a third, though some tilled only a ('/) See other forms on farming leases, nli. Lcgh v. Ih we;i, 4 East, 154; Dalby Hammond v. Colls, 1 C. B. 916; 3 D. & L. ■ i B ■: B. 224. tnthe Earl of Fal- L64 ; Kindle v. Pollett, 6 M. & W. 529; month v. Thomas, i Cr. 110, 111, Lowndes v. Fountain, 1 1 Ex.487; 25 L.J. lered doubtful Ex. 49; Tooker r. Smith, 1 H. & N. 732; whether ch in this form, not Fuller v. Eenwick, 3 C. B. 705 ; Lord Hood custom of the country, v. Kendall, 17 C. B. 260. or in 'ieular it has been violated, (A) A demise for more than three years sufficient iW demurrer ; and §em- from the making thereof must be under seal ndenl in cases where there is no Ante, 179, <)bs. Ufficulty aa to the facta to set out the custom, DECLARATIONS OX CONTRACTS. LANDLORD, ETC. 101 thereon during the continuance of the said agreement, or in case any pari of bucIi hay and straw should be sold, then would expend so much of the money arising from such sale in purchasing as much good dung and manure as the said hay and straw would have produced if the same had been used and con- sumed on the said Lands thereby let; and also would, from time to time and at all times during that agreement, immediately alter every crop of potatoes on any part of the said lands thereby let, lay out, expend, and spread in a husbandlike manner, on each and every acre of such land, as much good lime or dung as should at such time or times be of the value of £3 at the least for each acre of potatoes as therein aforesaid; and also should and would, at the expiration of the term, peaceably and quietly leave, surrender, and yield up to the plaintiff the lands, hereditaments, and premises thereby let, in the same or the like good state and condition as the same then were. And the defendant entered upon and held the said premises and was tenant thereof to the plain- tiff upon the terms aforesaid for and during the said term, and although the plaintiff hath performed [general averment of all conditions precedent, as ante, 39] ; yet the defendant disregarded the said agreement in this, that although a crop of wheat was, during the first year of the said term and tenancy, grown on part of the said demised arable land, he the defendant did not, after such crop of wheat, let such land remain at fallow and out of tillage for one year at least or otherwise, or sow the same either with clover, tares, pease, or beans; and although the defendant did, during the said term, sow a certain other part of the said arable lands with a crop of beans, a crop of wheat having immedi- ately before that time and during the said term been grown on the said last- mentioned part of the said arable lands, yet the defendant did not drill the said last-mentioned part of the said arable land and keep the same perfectly clear ; and although divers, to wit, 500 cart-loads of manure, from time to time during the said term, arose from the hay and straw that were during that time grown and made on the said lands, yet the defendant did not nor would, during the said term, in a husbandlike manner or otherwise, spend or employ in and upon the said lands (i) any part of the said manure. And although a crop of potatoes was, during the last year of the said term, grown on and taken by the defendant from a certain part of the said land, yet the defendant did not, during the said term, at any time after such crop, lay out, expend, or spend in a husbandlike manner or otherwise on any part of the land on which the potatoes were grown, as much good lime or dung as was at that time of the value of £3, or any other sum, for each of the said acres of potatoes. And the defendant further disregarded the said agreement in this, that he the defendant, at the end of the said term, left the said demised premises in a much worse state and condition than the same were in at the time of the mak- ing of the said agreement, whereby the said lands were deteriorated in value, and the plaintiff was unable to re-let the same. And the plaintiff claims (*) When the terms are that the tenant breach, Hindle v. Pollett, 6 M. & W. 529 shall not sell any straw or manure without As to breach for selling hay and straw, see Jie landlord's license, he is disabled from Lowndes v. Fountain, 11 Ex. 487; Leigh jelling it, even after the tenancy has expired, v. Lillie, [6 H. & N. 165 ;] 30 L. J. Ex. 25 Massey v. Goodall, 17 Q. B. 310. As to this infra. LARATIONS ON CONTRACTS. LANDLORD, ETC. ! - p , /,- , ; nant not to plough up or convert Pasture I y - to pay an increased Rent for every Acre ■ 1 thai the plaintiff by deed let to the defendant a certain farm and lands - i. Form 1. staling the demise to the defendant, and the defend- f which is complained of ; if the covenant be to pay tme time that the reserved rent is payable, then the . ,,!,( show how the reserved rent was payable; this will not be payment in the nature of a penalty is reserved, (k) And then ling to the ivords of the covenant, as folloics ;] yet the [uring the said term, that is to say, in and during the year a. d. f ploughed up and converted into tillage acres of the said demised thereby he became liable to pay to the plaintiff the said in- • of £5 for each of the said acres so ploughed up and converted . - ;.. say, at the first and next rent day which happened after the said forfeiture. And [although all conditions, S,-c. as ante, 39] yet £ lii.1 in respecl of such increased rent for quarters ending on the day f . \. i>. . and then last elapsed, is now due and unpaid to the plaintiff. And the plaintiff claims £ . 16. /-' I r against Lessee on Covenant not to cut down or lop top Trees under a Penalty of ,£20 for each Tree cut, lopped, -■ — Plaint if! may proceed for the penalty, or for unliquidated damages. If in hit ition he does not allege non-payment of the penalty, it must be as- oed thai the plaintiff sues for the breach of covenant in cutting and lop- j »i ii _r . and nol for non-payment of the penalty, and the jury are not bound to nve the whole penalty. Hurst v. Hurst, 4 Ex. 571 ; Leigh v. Lillie, 30 L. J. k. ■:■>. 17. By a Landlord against his Tenant, for not delivering up Pos- session, win reby the Superior Landlord recovered Double Rent and ■.< against the Plaintiff. (I) r that thf plaintiff was possessed of a certain warehouse and premises as •it thereof to one E. F., for the remainder of a term of years, ending on the — day of , a. d. , at a yearly rent of £ , payable quar- foi every acre of land form 27. Where the covenant is not to do up maj ered as liquidated an act except under a penalty or increased i it lie termed a pen- rent, the declaration must allege non-pay- 3 V. & .1. 304 : Birch menl of the penalty or rent, as the covenant ■ • ■: Farrant v. is, in effect, a license to do the act on pay- Fuller v. Fenwick, ment of such penalty or rent. Leigh v. Goodsoil, 8 Lillie, 6 II. & N. 165." 71. Where the sum i- reserved as ;i (/) Where a tenant holds over after notice furl: on the same days as the to quit, his landlord may recover against the increased rent at- him the damages and costs which he the I is payable until landlord has been compelled to pay a third term. B Nixon, 12 party to whom he had agreed, to the tenant's is a user of land, knowledge, to let the premises, and to whom ire or meadow, he wa- unable to give possession. Bramley Howard, I M. & G. 921 ; post, v. Chesterton, 2 C. B. N. S. 592. DECLARATIONS ON CONTRACTS. LANDLORD, ETC. 193 tnly by the plaintiff to the said E. F. ; ami the plaint ill' lei to the defendant the said warehouse [<$■'".], and the defendant became tenant thereof to the plaintiff upon the terms that he the defendant would quil and yield up pos- session of the said warehouse [$c.~\ to the plaintiff, on demadd, at the expira- tion of the said term, and of tlic plaintiff's said interest, therein; yet the. defendant did not quit or yield up the said warehouse [# c -] to the plaintiff at the expiration of the said term, although then requested by the plaintiff so to do, but wrongfully withheld the possession thereof from the said plaintiff and the said E. F., for a long time after the expiration of the said term, and of the said interest of the plaintiff therein; by reason whereof the said E. F., after the expiration of the said term, brought an action againsl the plaintiff for the recovery of double the value of the said premises to which he was entitled for the holding over of the said warehouse [4*^-] by the defendant as aforesaid. and the plaintiff was compelled to and did pay to the said E. F. £ , being the amount of the damages payable by the plaintiff in respect of the possession of the said warehouse [_$c.~\ being withheld and held over as aforesaid, and of the costs of the said E. F. in the said action; and the plaintiff also incurred expenses in resisting and settling the said action. And plaintiff claims £ . 18. By a Landlord for Double Value against his Tenant for holding over after Notice to quit given by the Landlord, (m) Commencement, as ante, 5.] For that the defendant was tenant to the plaintiff of a messuage and premises, to wit, from year to year, (n) for so long a time as the plaintiff and defendant should respectively please, [or " for a cer- tain term of years ending on the day of , a. d. ,"] the rever- sion of the said premises, with the appurtenances, during all that time belong- ing to the plaintiff; and thereupon, during the said tenancy, and whilst the said reversion thereof belonged to the plaintiff as aforesaid, the plaintiff gave (m) By the stat. 4 Goo. 2, c. 28, s. 1, " in expires by efflux of time, or a yearly ten- case any tenant' for life, lives, or years, or ancy is determined by notice to quit given other persons who shall come into possession by "the landlord, the latter is entitled to of any lands, tenements, or hereditaments, double the yearly value of the premises, under by, from, or under, or by collusion with the 4 Geo. 2. Where the tenant holds over such tenant or tenants, shall wilfully hold after he. has given notice, the claim is tor over .any lands, &c. after the determination double rent under 11 Geo. 2, c. 19, s. 18. See of their term, and after demand made and post, 194, form 19. It is only the landlord notice in writing given for delivering the or person who stands in the relation of land- possession thereof by his or their landlord lord to the defendant at the end of the ten- or lessor, or the person to whom the remain- ancy who can bring this action ; a person to der or the reversion of such lands, &c. shall whom the landlord has re-let the premises belong, his or their agents thereunto law- cannot sue. Blatchford v. Cole, 28 L. J. C. fully authorized, such persons so holding P. 140. Tenants in common cannot sue over shall, for the time he or they shall so jointly for double value for holding over, un- hold over or keep the person or persons en- less there has been a joint demise by them. titled out of the possession of the said lands, Wilkinson v. Hall, 1 Bing. N. C. 713 ; 3 Bing. &C pay to the person or persons so kept N. C. 510. Husband and wife cannot join out of possession, their executors, adminis- in action where there is a parol demise l>v trators, or assigns, at the rate of double the husband alone of land of which he is seised yearly value of the said lands, &c. for so in right of his wife. Harcourt v. Wvman, long time as the same arc detained, to be 3 Ex. 817. As to whether one joint tenant recovered by action of debt in one of the is liable for the holding over of the other, queen's courts of record." Chitty's Stat- see Hirst v. Horn, 6 M. & W. 393. ntesbyWelsby, tit. "Landlord and Tenant;" (n) A. quarterly tenancy will not support Woodfall, Land, and Tenant. Where a term this allegation. Wilkinson v. Hall, supra. VOL. II. 13 DECLARATIONS ON CONTRACTS. LANDLORD, ETC. .. in writing to the defendant, (o) and thereby then demanded (p) and required the defendant to quit ana deliver up the possession of the said tene- ments, with the appurtenances, of the plaintiff, on the said day of , -hereby the tenancy was duly determined on the last-mentioned day by the said" DOtice, and that after [or « upon," a* the case may be~\ the determin- ation of the said term as aforesaid, the plaintiff being entitled to the possession lid premises, by a certain notice (q) in writing given by him to the de- lIlt . demanded and required the defendant to deliver the possession of the said premises to the plaintiff; yet the defendant wilfully (r) held over the said ment8 for months after the determination of the said term and ten- . . and after the said notice had expired, and after the said demand so made foresaid, during which time the defendant kept the plaintiff, being the per- Bon entitled to tin- possession thereof, out of such possession, and by reason of the premises and by force of the statute in such case made and provided, the odant became liable to pay the plaintiff the sum of £ , (s) being at the rat.- of double the yearly value of the said tenements, with the appurtenances, for so long as the Bame were so detained as aforesaid. [A count for use and occupation may be added if there be any doubt as to the plaintiff's right to recover under the statute, Thornton v. Whitehead, 1 M. & W. 14; 4 Dowl. 7 17. S. I • and one on an account stated, and conclusion as ante, 35.] (s) 19. By Landlord for Double Rent under 11 Geo. 2, c. 19, s. 18, where '/'■ nant holds over after Notice to quit given by him. (t) For that the defendant was tenant to the plaintiff of a house and premises from year to year [or as the case may be~\, at the yearly rent of £ , payable quarterly, and the defendant's said tenancy was duly determined by a notice (u) given by him to the plaintiff of his the defendant's intention to quit the said premises on the day of , a. d. (or " on a day mentioned in such See Eamberstone v. Dubois, 10 M. & tention to quit the premises holden by him \V. 765; 2 Dowl. N. S. 506. at a time mentioned in such notice, and (/.) Evidence of authority to make this shall not accordingly deliver up the posses- demand. Poole V. Warner, 8 Ad. & E. 582 ; sion thereof at the time in such notice con- Wilkinson v. Colley, 5 Burr. 2694. tained, then such tenant, his executors or (7) It seems the written notice to quit is a administrators, shall thenceforward pay to demand within the Statute. Wilkinson v. the landlord double the rent or sum which 5 Burr. 2694; Lake v. Smith, 1 be 'should otherwise have paid, to be levied, l;. 174, 17'.) : Cobb v. Stokes, 8 East, sued for, and recovered, at the times and in llir-t v. Ih.rn. 6 M . & W. 393. In the the same manner as the single rent or sum, in Poole v. Warner, ubi supra, this alle- before the giving of such notice, could be m is omitl levied, &c. and such doable rent or sum (r) Wh. re a tenant holds over under a shall continue to be paid during the time claim of right, though misfounded, this is such tenant shall continue in possession. not a wilful holding over within the statute ; See other forms, 2 Chit. PI. 7th ed. 40; Wright v. Smith, 5 Esp. 203; the holding Crocker v. Fothergill, 2 B. & Aid. 652. r must amadous. Swinfen v. (») The notice to quit under this statute Bacon, [6 II. & N. 184;] 30 L. J. Ex. 33. need not be in writing. Timmins v. Rawlin- I tact amount need not be stated, but son, 3 Burr. 1603. But the statute only lay enough. Bee Anon. Lofft R. 275. As applies where a valid notice sufficient to de- the dam iverable, see Cobb v. termine the defendant's tenancy has been Btol i-t. 861 ; Robinson v. Learoyd, given. Farrance v. Elkington, 2 Camp. 7 M rhe value of the land, with 591; Johnstone v. Hudlestone, 4 B. & C. ementt only, is to l>e estimated, 922. See a form of an avowry for double in power let with it. lb. rent, Humberstone v. Dubois, 10 M. & W. lunded on the stat. 11 765; 2 Dowl. N. S. 506; post, tit. "Re- Geo -'. e 19, -. 18, which enacts "that if plevin." U] H nant, &c. ^hall give notice of his in- DECLARATIONS ON CONTRACTS. LANDLORD, ETC. 195 notice, which has long elapsed "), hut the defendant did not accordingly de- liver up the possession of the said premises at the time in such notice con- tained, but continued to hold the same thence hitherto [or "for "], and by force of the statute in such case made ami provided, the defendant became liable to pay double the rent aforesaid, of which one quarter is in arrear and unpaid. [Add account stated, fyc. as ante, 34, 35.] 20. Lessee against his Assignee, for a Breach of Covenant to pay the Rent to the Lessor, whereby the Plaintiff was obliged to pay it. (x) Commencement, ante, 5.] For that E. F., by deed, let to the plaintiff and his assigns a certain messuage and premises to hold [fyc] at the yearly rent [#c], and the plaintiff thereby covenanted [fyc. ; set out covenant to pay rent], and the plaintiff, being possessed of the said premises during the said term, by deed, assigned to the defendant all his the plaintiff's estate and interest therein, subject nevertheless (y) to the payment of the said yearly rent, and to the per- formance and observance of the several covenants and agreements which, on the lessee's or tenant's part, were and are thereby required to be performed and observed. And the defendant thereby covenanted with the plaintiff that he the defendant should and would well and truly pay [fyc. ; set out the cove- nant to pay the rent and perform the covenants and indemnify the plaintiff] ; (z) yet the plaintiff says that after the defendant became such assignee, and dur- ing the said demised term, £ for one quarter of a year of the rent afore- said became due ; yet the defendant did not pay the same, whereupon the plaintiff was called upon to pay and paid the same to the said E. F. [or " to a certain person, to wit, G. H., who then had lawful right and title to the said tenements subject to the said lease, and had the estate and right of the said E. F. therein, and lawful right and title to demand and receive tne said sum of £ from the plaintiff as such lessee upon the said lease "], of which the defendant had notice, but the defendant hath not repaid the same to the plain- tiff. And the plaintiff is now damnified to the amount thereof. 21. By a Lessee against his Underlessee for not repairing, whereby a Forfeiture was incurred, and the Superior Landlord entered. Obs. — The value of the lease forfeited cannot be recovered, unless the forfeiture was solely owing to the underlessee's non-repair. Clow v. Brogden, 2 M. & G. 39 ; 2 Scott N. R. 303; unless the underlease contains a covenant to indem- nify, the underlessee is only liable for such damages as necessarily result from the breach of his own covenants; though the covenants in the original • lease and those in the underlease are identical in their terms ; the lease is (x) See Neale v. Willie, 3 B. & C. 533 ; of the lease to the original lessor. Grecn- and Obs. to the next form. wood v. Taylor, 9 Jur. 480. (y) It has been decided that these words, (z) Where an undeiicssce covenants to " subject, &c." do not constitute a covenant ; observe the covenants in the original lease, so that the action of covenant does not lie it is the same as if those covenants had been except upon the express covenant of the les- inserted at length in the underlease ; Pig- see, and case, in the absence of such cove- gott v. Stratton, 29 L. J. Chan. 1 ; [Brabant nant, is the proper remedy. See Wolveridge v. Wilson, L. R. 1 Q. B. 44] ; but such cove- *■ Steward, I Cr. & M. 644, in error ; Bur- nant is limited in its operations to the period nett v. Lynch, 5 B. & C. 589. A reassign- during which the original lease is subsisting ment by the assignee does not destroy the unsurrendered. lb. A breach should be assignor's right of action against him upon assigned upon the covenant to indemnify if the covenant to indemnify ; see Harley v. the plaintiff has been put to any costs or ex- King, 2 Cr., M. & R. 18 ; nor the surrender penses. See the Obs. next form. LARATIONS ON CONTRACTS. LANDLORD, ETC. forfeited bv the breach of the plaintiff 'a covenants, not the defendant's cov- ;;;;' | ■„',„,, i, a n. 4 «'.n.^ ; Walker*. Hatton, 10M.&W.249. See i tw v. Broaden, 2 M. &G. 39; 2 Scott N. R. 303 ; Smith v. Howell, - itfa v. Peat, 9 Ex. 161. ■2-2, l; I. lainst Sub-Lessee for not repairing, $c. stating Reason of the Lessor having sued the Plaintiff '; \e% of mt. Walker v. Hatton, 10 M. & W. 249 ; 2 Dowl. N. S. 263. — It was held in that case that the plaintiff could not recover the costs of de- din» the action brought against him by the lessor, but it would seem he niLdn recover such costs if he received the sanction of the underlessee for defending it: see Blyth v. Smith, 5 M. & G. 405, 412; ante, 152; he may the amount of dilapidations recovered against himself, and occasioned the underlessee's neglect. Penley v. Watts, 7 M. & G. 001. /; , /. - /• against Assignee for Non-payment of Rent, and not Repairing, (a) ' mtnencement, ante, 5.] For that the plaintiff, by deed, let to A. B. [pro- as in the preceding forms to the end of the statement of the lease granted t,, (I iming him, and covenants by him applicable to the case~\ ; and the plaintiff says, that after the making of the said deed, and during the said term, all the estate, interest, and term of years of the said E. F. of, in, and to the said demised premises, vested in the defendant by assignment; (b) yet the (a) See form. &c. Harley v. King, 2 Cr., R. |\ As i" the liability of the as- ■ nf a lease, see Harrison's Woodfall, •: " post, Pleas in Contract, Landlord and Tenant." The liability .lined to breaches of covenant running with the laud, committed while the party continues to be assignee, lb.; Minshull v. Oakes, 2 II. & X. 793; Martyn v. Clue, 18 Q. B. 661. An heir; Derisley v. Custance, 4 T. R. 75 : a devisee : Isherwood v. Old- kiH.w. 3 .M. & S. 382; Mayor of Carlisle v. Blamire, 8 East, 4^7 ; or an executor right- ful or de son tort, or administrator of the ■ or an ; 1 Saund. 1 a, note ; k 309,317; Wollaston v. llakewill, 3 M. 8 G 297; Paul] v. Simpson, 9 Q. B. Buckworth v. Simpson, I Cr., M. & R. Nation v. Tozer, l Cr., M. & R. 172; Landlord and Tenant;" or the assignees of a bankrupt lessee where they have unequivocably elected to take the : the leas ; < loodw in v. Noble, 27 I- J. Q B. 204 : may be charged in this form for breach of covenant after lie becomes interested; but not an nnderlessee; Hol- Doug. 183, 445; Karl of Derbj p. Taylor, l East, 502; nor can a person who becomes a men- equitable ■ r nf ;i lease by contract, between him- and the lessee, but who takes no legal B uiie ut. in the absence of special circum- ned in equity by the lessor for rent or breach of covenant accrued or com- mitted whilst he is in possession. Cox v. Bishop, 26 I. .1. Ch. 389. A mortgagee who tak' ;_'nment of the whole of the lessee's term, by way of security, is liable as assignee to the lessor, although he never en- tered or took possession. Williams v. Bo- sanquet, 1 B. & B. 238. In order to change the assignee in this form, the original cove- nant with the lessor need not contain the word " assigns." Smith v. Arnold, 3 Salk. 4 ; Martvn v. Clue, 18 Q. B. 661 ; Minshull v. Oakes* 2 H. & N. 793. (b) As the lessor is supposed not to know precisely how the defendant became assignee, and that fact is more peculiarly within the defendant's knowledge, this general state- ment of the title and liability of the latter suffices as against him. See 1 Saund. 112 b, note(l); Steph. PL 4th ed. 250. It is the proper form against any party who is charged as assignee in law, as an executor or administrator of the lessee, &c. Acland v. Bring, 2 M. & G. 937; Wollaston v. llakewill, 3 M. & G. 297 ; Hopwood v. Wha- ley, 6 C. B. 744. And an executrix of an assignee may be charged in this form, though she has never entered or taken the profits. Wollaston o. Hakewill, 2 M. & G. 321 ; post, Pleas, "Landlord and Tenant." Where the defendant is assignee of part only of the premises, he should be declared against ac- cordingly. See Curtis v. Spitty, 1 Bing. N. C. 756 ; Merceron v. Dowson, 5 B. & C. 479 ; Heap v. Livingstone, 11 M. & W. 91 ; post, Pleas, " Landlord and Tenant." It is not necessary to allege an entry against a lessee or assignee for years; 1 Saund. 203, note (1); or that they became possessed of the term. Ante, 185, note (r) ; Turner v. Rich- ardson, 7 East, 340, note (a). Where the DECLARATIONS ON CONTRACTS. LANDLORD, ETC. 197 plaintiff says that [_§c. ; state the breaches as in the preceding forms, taking care to show that the breach occurred after the assignment, as that " during the said term and after the said assignment, two quarters of the said rent became due from the defendant," (c) or " that during the said term and after the said as- signment the said house was out of good and substantia] repair"]. 24. By the Heir of the Lessor against the Lessee. (JT) Commencement, ante, 5.] For that one E. F. now deceased, being seised (e) in his demesne as of fee (f) of and in certain tenements, by deed, let the same tn the defendant \_fyc. ; state the lease and the covenants h-oken, as in the preceding forms, alleging them to have hern made with the said E. F. and his heirs'], and the said E. F. afterwards, and during the said term, died so seised of the said reversion of and in the said demised premises, whereupon and whereby the said reversion descended to the plaintiff as \_son] (g) and heir of the said E. F. deceased ; yet \_fyc. ; assign breaches as usual, showing that they were committed, "after the death of the said E. F."]. 25. By the Heir of Lessor against Assignee of Lessee for not keeping Premises in Repair, held under an Agreement not under Seal. Alderman v. Neate, 4 M. & W. 704. 26. By the Devisee of the Lessor against the Lessee. (A) Commencement, ante, 5.] For that \_fyc. ; state the lessor's seisin in fee, the demise, the defendant's covenants, alleging them to have been made xoith and to the said E. F. and his assigns, as in Form 24, supra'] ; and the said E. F.. being so seised of the said reversion of and in the said premises, died, having first duly made and published his last will and testament in writing, and thereby devised the said reversion of and in the said demised premises to the plaintiff, to hold the same unto and to the use of the plaintiff, his heirs and assigns for- ever; yet \_fyc. ; assign breaches as in the preceding forms, showing that they occurred " after the death of the said E. F. and during the said term "J. 27. By a Plaintiff, ivho was partly Devisee and partly Heir of a Lessor, for increased Rent (under a Penal Clause) for converting Pasture Land to other Purposes than ivere allowed by the Lease. Aldridge v. Howard, 4 M. & G. 921; ante, Form 15. declaration alleged that defendant continued (/) As to the statement of a freehold in possession until the end of the term, and title, see Steph. 4th ed. 343. In Harris v. whilst he was in possession as such assignee Bovan, 4 Bing. 646, the action was by the suffered non-repair, and the proof was, that assignee of the reversion, and the declaration he ceased to be assignee before the end of alleged that the " lessor was seised," without the term, held no variance. Burnett v. stating of what estate, and being so seised, Lynch, 5 B. & C. 589. devist a, &c. to plaintiff in fee. Aftt r a rdict, (c) | Sic Dubois v. Van Orden, 6 John, held a sufficient allegation of title. The 105; 1 Chitty PL 244, note (It).] allegation in the text suffices, though the I'/'l See 2 Sannd. 45 a, 305 a, note (13), fee were conditional or determinable' on a 418; 2 Chit. PI. 7th ed. 413, note (n) ; 1 certain event. Dt. PL 287. Har. Ind. tit. " Covenant ;" Jones v. King, [g) .Must show how heir, &c. Lidgbird 4 M. & S. 188. And see a form on a con- v. Judd, 7 1). & R. 517. tract not under seal. Alderman v. Neate, (It) 2 Sannd. 235, 253, 276 a, note (a) ; t M. & W. 704, and Picas. Steph. 4th ed. 341 ; 1 Har. Ind. tit. " Cove- (r) That is, seised at the time of the de- nant." misc. Per Parke B. Smith v. Adkins, 8 M. & W. 369. 198 DECLARATIONS OX CONTRACTS. LANDLORD, ETC. 28. By th Assignee of the Reversion in Fee against the Lessee. (J) . 5.] For that whereas one G. H., being seised in his ! ) of and in certain -messuages" [>. describing the prem- e, 184, Form 4], by deed, let the same to the defendant (>. ; and covenants " with the said E. F. and his assigns," as in the 1 ,/ 5, ante, 185, and then proceed as follows :] And the said E. F., -, ,1 of the said reversion as aforesaid, afterwards and during the said term granted, conveyed, and assigned to the plaintiff the said reversion in the -aid demised premises ; yet [#c; state the breaches, as in Forms 4 and 5, that they occurred after "the plaintiff became seised as afore- said "]. 29. By th Assignee of a Lessor being a Termor, against the Lessee. (7) „„„ ncement, ante, 5.] For that one E. F., being possessed of a house [#c. . L84, Form 4], for the residue of a certain term of years, commenc- ing from the — _ day of , a. d. , by deed, let the same to the de- fendant [4r. ; here state the lease and covenants broken, alleging them to have /„,.„ „„„ L /,. by the defendant with the said E. F. and his assigns, as ante, 184, I m 4]. and the said E. F., being possessed of and in the said reversion therein, by deed, assigned to the plaintiff the said reversion of and in the said demised premises; yet the plaintiff says that [state the breaches, as in the Forms 1. 5, and 6, showing that they occurred "during the term and after the plaintiff became possessed of and in the said reversion as aforesaid "]. 4i) See the Obs. ante ; 2 Saund. 10, 275 ; to kill game. Hooper v. Clark, L. R. 2 Q. W.M.tt.m r. Steffinoni, 12 M. & W. 129. B. 200-1 \ of the reversion can only sue and (k) Tenants in common, assignees of the be 3i irtue of the stat. 32 Hen. 8, c. reversion, may sue and be sued jointly on TlnVart applies onlv to leases by deed, the covenants in the lease. Wornersley v. Standen d. Christmas; 10 Q. B. 135. Parol Dally, 26 L. J. Ex. 219. The assignee > of contracts do ool run with the reversion; the reversion of part of the premises demised where the lease is not under seal the assignee may sue for not repairing. Twynam v. of the reversion cannot sue the lessee for Pickard, 2 B. & Aid. 105. By the assignee breach of his contract to repair ; but in such of the reversion against the executor or ad- h may sue notwithstanding the ministrator of the lessee. Perry v. Watts, _ urn -lit . Bickford v. Parson, 5 C. B. 3 M. & G. 775; Badely v. Vigurs, 4 El. & 920, And in cases where the assignee can Bl. 71. By assignee of reversion against determine the tenancy, the continued hold- assignee of lessee. Minshull v. Oakes, 2 H. ifthetenanl wider him is evidence of & N. 793. By assignee of reversion by es- rreement on the part of the tenant with toppel. Cuthbertson v. Irving, 28 L. J. Ex. oee to hold on the old terms. Buck- 306 ; [4 H. & N. 742 ;] 29 L. J. Ex. 485 ; [6 th v, Simpson, 1 Cr., M. & R. 834; H. & N. 135.] Where a termor of mines de- Sullivan, 14 Q. B. 832. In strict- mised them by deed to the defendant^ reserv- it should be Bhown what was the nature ing a rent for a longer term than his own, of the l< ssor's title, and how it has passed to and then assigned his interest and the rent, the plaintiff; but see Cuthbertson v. Irving, it was held that the assignee could sue the 28 L. •!. Ex. 306; (4 II. & N. 742;] affirmed, defendant for the rent reserved. Williams 29 !.. .1. Ex. 485 ; [6 1 1. & N. 135.] The les- v. I lay ward, 28 L. J. Q. B. 374. ■'- title a- alleged is traversable. Weld v. (I) In general the commencement of par- B Kter, 1 II. & N. 568. See several forms ticnlar estates must be shown, that is, oftitlesandi pleaded, 2 Chit PI. 7 th traced from the title in fee ; but there is an ed. 403 et seq.; I Saund. 251, 258; 2 lb. exception, where, as in the above case, the 275. The remedj given by the statute only action is mainly grounded on the lease, and to covenants running with the land, the title is alleged as matter of inducement I g, 27 L. J. Ex. 37 ; [2 II. v< N. onlv. Stephen, 4th ed. 337 ; ante, 181. An | Martin v. Williams, 1 H. & N. 817. underlessee of a termor may enforce a cove- [Covenant running with the land. Declara- nant entered into with the latter by a pre- tion by assignee of reversion against licensee vious under-tenant. Wright v. Burroughs, C. P. Nov. 10, 1846. DECLARATIONS ON CONTRACTS. LANDLORD, ETC. 199 30. By the Executor of the Lessor, a Termor, against the Lessee, (m) Commencement as Executor, ante, 13, Form 23.] For that [#c. ; state that the lessor was possessed of a term (n) as in the Form 29, ante, 198, unless the action be confined to breaches of covenant committed in the lifetime of the testa- tor ; and after showing the lease and covenants as in the Forms 4 and 5, ante, 184, 185, proceed thus .•] and the said E. F., being possessed of and in the said reversion of and in the said premises, during the said term so demised to the defendant, died, having duly made and published his last will and testament in writing, and thereby appointed the plaintiff executor thereof, after whose death the plaintiff duly proved the said last will and testament, and took upon him- self the burden of the execution thereof; (o) and the plaintiff, as executor as aforesaid, became possessed of the said reversion of and in the said tenements ; yet [jfyc. ; state breaches as usual, showing whether they occurred " in the lifetime," or "after the death, of the said E. F."]. 31. By the Legatee of a Termor, who was the Lessor, against the Lessee. Commencement, ante, 5.] For that E. F. \_§c. ; state that the lessor was pos- sessed of a term, the lease, and the defendant's covenants, alleging them to have been made with the said E. F. and his assigns, as ante, 198, Form 29] ; and the said E. F., being so possessed of the said reversion as aforesaid, afterwards and during the said term so granted to the defendant, died, having duly made and published his last will and testament in writing, and thereby given and bequeathed the said reversion of and in the said demised premises, with the appurtenances, unto the plaintiff and his assigns, and by his said will appointed G. H. executor thereof, after whose death the said G. H. duly proved the said will, and, as such executor, assented (p) to the said bequest to the plaintiff; yet [<^c. ; state breaches as usual, showing they were " after the plaintiff became possessed of the said reversion as aforesaid "]. 32. For not granting a Lease to Plaintiff pursuant to Agreement. Wright ». Colls, 8 C. B. 150. (m) See forms, Baker v. Gostling, 1 ecutor of a tenant for life may recover for Bing. N. C. 18 ; 4 M. & Sc. 539, S. C. By the breach of covenant to repair committed the executor of the lessor against the ex- by the lessee of the testator in his lifetime, ecutor of the lessee ; Penley v. Watts, 7 M. without averring damage to the personal k W. 601 ; and see a form by the executor estate. Ricketts v. Weaver, 12 M. & W. of the lessor against the lessee for cutting 718. trees in the lifetime of the testator, Lid- (o) It has been usual, but sernble, it is not dard v. Holmes, 2 Cr., M. & R. 588. necessary, to insert the averment within («) This is essential where the breach is brackets, the plaintiff being described in the after the testator's death, because the prop- commencement of the declaration as exec- erty and right of action would pass to the utor or administrator of the deceased, heir or devisee, if the testator had a free- (./*) Iu the case of leasehold property, the hold estate. See Muckay v. Mackreth, 2 executor's assent to the bequest is essential, Chit. R. 461 ; 4 Doug. 213. When execu- and must be alleged; 1 Saund. 278, note tors may sue on lease or covenant, &c. lb.; (5); whether this assent has taken place is Kiugdon v. Nottle, 1 M. & S. 355. See 10 matter of fact for the jury. Mason v. Far- Bing. 533; 2 Cr., M. & R. 588. The ex- nell, 12 M. & W. 674. LARATIONS ON CONTRACTS. LANDLORD, ETC. ■ . . 1 //-, , ment to r< cover a Sum of Money agreed to be paid by [, ■ ■ Plaintiff, Plaintiff agreeing^ upon Payment, to grant a I. /' nt. . I ...(. i',. N. S. G37. [Declaration on an agreement for a l mt for title. Stranks v. St. John, L. R. 2 C. P. 376.] /; y f against Landlord upon a Contract, not under Seal, of 1 1 ■:.. Plaintiff, with an Option of Purchase, for not making I Title. Worthington v. Warrington, 5 C. B. 635. ' putting Plaintiff into Possession, the Defendant having let the Premises to him by a present Demise, not under Seal. . (lav. 3 M. & P. 57 ; 5 Bin-. 440 ; Drury v. Macnamara, 5 El. & Bl. 612 ; Jinka v. Edwards, 11 Ex. 775. By a Tenant against a Landlord, for not sending Furniture into a House pursuant to an Agreement under which the Plaintiff had becomt T> ii'int. Mechelen v. Wallace, 7 Ad. & E. 49. 37. Form, showing that the Landlord had not Title to demise. Brashier v. Jackson, 6 M. & "W. 549 ; Messent v. Reynolds, 3 C. B. 194. 38. By a Lessee against his Lessor for Breach of his Covenant for Quiet Enjoyment, alleging a Distress by the Ground Landlord, (jf) For that the defendant, by deed, demised and let to the plaintiff a messuage [SfC.~\ and premises to hold to the plaintiff for years, from the day of - .A.D. — — . and the defendant thereby covenanted with the plaintiff that he, the plaintiff, his executors, administrators, and assigns, paying \_fyc.~] (r) and observing \_fyc. as in the covenant], should and might peaceably and quietly (./) [Lock w. Furze, 19 C. B. N. S. 96.] not for good title. Bandy v. Cartwright, 8 word "demise " implies this covenant; Ex. 813; [Hall v. City of London Brewery a, 5 Bing. N.C. 183 ; 6 Scott, Co. 31 L. J. Q. B. 257.] As to the con- ord "grant." Bar- struction of covenants for title and quiet en- Barris, 9 Ad. I E. 532; [Moore v. joyment, see Young v. Raincock, 7 C. B. Wetx r. 71 Penn. St. 129 ; Gallup v. Albany 310, 340. [The implied covenants for title R. R. 7 I i7i. Thai is, these words and quiet enjoyment are limited to the dura- imply a covenant for quiet enjoyment dur- tion of the lessor's estate, ami erase upon in- the period of the lessors interest in its determination. Adams v. Gibney, 6 Penfold v. Abbott, 32 L. .1. Bing. 656; and see Williams v. Burrell, 1 Q. B 67.] But in deeds executed since 1st C. B. 402; Penfold v. Abbott, 32 L. J. Q. the words "give" and 15. 07. The measure of damages for a 1 not imply any covenant in breach of the covenant for quiet enjoyment law 4; the words is the value of the lease. Williams v. Bur- d defend," occurring in a lease, nil, i C. B. 402; Lock v. Furze, 34 L. J. C. renant. Williams P. 201 : 35 Lb. 141 ; 19 C. B. N. S. 96.] '•• I'.nrrill, i C. B. 102. An implied cove- (r) The payment of the plaintiffs rent is oant i- qualified and restrained by an ex- not a condition precedent to the perform- preas covenant for quiet enjoyment. On a ance bj defendant 'of his covenant. Dawson there i- an implied agreement v. Dyer, 5 B. & Ad. 584; Briant-v. Pilcher, for quiel enjoyment during the term, but C C.'li. 354; ante, 155, note (/). DECLARATIONS ON CONTRACTS. LANDLORD, ETC. 201 have, hold, occupy, possess, and enjoy the said demised premises for and during the said term, without the let, Buit, trouble, denial, interruptions, pro- testations, or disturbance of him, the defendant, his heirs or assigns, or any other person or persons lawfully claiming or deriving, or to claim or derive, by, from, or under, or as trust for him or them, or any or either of them, or 1)\ or through their or either of their acts, means, defaults, or procurement; and although the plaintiff hath performed all conditions \_§c. as ante, 391, *vet. after the said demise and during the said term, a distress was lawfully made by A. 15. on the goods of the plaintiff upon tin- demised premises for £ arrears of rent then due and owinir from the defendant to the said A. 15., as ground landlord of the said premises, whereby the plaintiff was put to great trouble and inconvenience, and disturbed in his possession of the said premises, and was obliged to and did pay the said sum of £ , and £ for the charge of the said distress. 39. A Similar Form, but alleging as a Breach that Plaintiff ivas evicted, (s) As in the preceding form to the *.] Yet after the said demise and during the said term, A. 13., who, at the time of the demise to the plaintiff and thence hitherto, claimed to have and had lawful right and title to the said demised premises and the possession thereof by, through, and under the defendant, en- tered into the said premises and evicted the plaintiff therefrom [or " molested and disturbed the plaintiff in the possession thereof," if there has been no act- ual eviction ; see Carpenter v. Parker, 25 L. J. C. P. 78-88, per Willes J.]. 40. By a Tenant against his Landlord, for not allowing him for Off- going Crops, according to the Custom of the Country, (£) See a form in such case on a covenant in a lease. Newson v. Smythies, 28 L. J. Ex. 97; 3 H. & N. 840 ; Hutton v. Warren, 1 M. & W. 466. (s) See a form of declaration in Carpen- and disturbance by. the lessor in working ter v. Parker, 3 C. B. N. S. 206. As to iron-stone between the mine and surface, and what is an eviction, lb. ; [1 Chitty Contr. causing roof of mine to fall in ; Shaw v. (11th Am. ed.) 512, note (6); 2 lb. 1081, Stenton, 27 L. J. Ex. 253; 2 H. & N. 858; note (c); Upton v. Townend, 17 C. B. 30, form by lessee against lessor for breach of 64; Lounsbery v. Snyder, 31 N. Y. 514; the covenant for quiet possession; Dawson Gilhooley v. Washington, 4 Comst. 217; v. Dyer, 5 15. & Ad. 584 ; by the assignee of Edgerton v. Page, 1 Hilton, 320; 20 N. Y. a lessee v. lessor for eviction; Brookes v. 281; Royce v. Guggenheim, 106 Mass. 201; Humfrey^5 Bing. X. C. 55; 7 Dowl. 118; Elliot v. Aiken, 4~> X. 11. 30; Greton v. Stanleys. Hayes, 3 Q. B. 105; against ex- Smith, 33 N. Y. 245, 249; Jackson v. Eddy, ecutor of lessor in such case ; Adams v. Gib- 12 Missou. 209 ; 3 Kent, 454,uote (/).| An nev, 6 Bing. 656 ; see form, &c. by a mort- em ry and distress for land-tax due from the gagor against a purchaser, for not keeping lessor before the demise to plaintiff is not a plaintiff indemnified against the mortgagee; disturbance by any one claiming under the Allard v. Kimberley, 12 M. & W. 4ln; and lessor; it is a claim against him; Stanley other Eorms on indemnities, ante, 155, 156, v. Hayes, 2 Q. 15. 105; semble, plaintiff a refusal by the defendant to let the plaintifl might have paid the tax, and sued for into possession will not support a declaration money paid. The entry by the third party charging that defendant evicted the plaintiff, claiming lawful title is tiol the less a breach Hawkes r. Ilorton, 5 Ad. & E. 367. of covenant, because the plaintiff maj have (t) Where, by custom, the incoming ten- instigated him to enforce his claim; Young ant pays the value of the fallows, &c. and v. Raincock, 7 C. 15.310; see Neale o. Wil- the tenancy is determined so that there is no lie, 3 B. & C. 533 Form by a lessee incoming tenant, there is an implied con- ofa mine against the lessor for breach of tract on the part of the landlord to pay the covenant for quiet enjoyment by molestation value. Faviell v. Gaskoin, 7 Ex. 723. LARATIONS OX CONTRACTS. LIMITATIONS. 41. // 'ng '/'■ r a t against the Assignees of the Reversion on a ,,, of the Country by which, on notice to quit by the /. . Ten int is • ntiik > I to be paid for Tillages. Womersley v. Dally. 26 L. J. Ex. 219. 42, By ' I. against the Assignee of the Lessor for a Breach of i ' ■■■ nant in not destroying Rabbits on a Farm. - S v. Wingfield, 15 L. J. Ex. 212; 15 M. & W. 224; Martin v. Williams, 1 B. & NT. L87. /.. 8 against Lessor, on Covenant by Defendant in Consid- eration of the Surrender of the Term to pay for Manure, Tillages, r ,/ Valuation. NewBonr. Smythies, 28 L. J. Ex. 97 ; 3 H. & N. 840; 1 F. & F. 447. 44. By Assignee of the Lessee against the Lessor for Breach of his Cor, nant to repair, whereby the Plaintiff was injured in his Trade and compelled to remove, (it) Green v. Eales, 2 Q. B. 225. LIMITATIONS, STATUTE OF. Count on a Conditional Promise to pay a Debt barred by the Statute of Limitations, (x) For that win reus heretofore and more than six years next before the mak- ing of the defendant's promise in this count mentioned, to wit, on the 1st day of January, a. D. 1839, the defendant was indebted to the plaintiff in £100 for money payable by the defendant to. the plaintiff \_fyc; state the debt as usual], and six years from the time the plaintiff's cause of action thereon accrued had elapsed, and the right of action of the plaintiff against the defendant for the r< covery of the said money had, by reason of such lapse of time, but not otherwise, become barrefl by virtue of the statute in such case made and pro- vided, and at the time of the making of the promise next mentioned, and thereupon the said money being wholly unpaid and in arrear to the plaintiff, (uj A landlord is under no obligation to 14 M. & W. 1 ; Hart ;•. Prendergast, 14 M. ed premises unless he has >"■ whei uditional contract has be- fund, or at a certain time alter demand. e, creatine a liability to pay the Waters v. Earl of Thanet, 2 Q. B. 757; debt inetanter. See Humphreys v. .Jones, [2 Chitty Contr. (11th Am. ed.) 1263 et seq.) Chitty Contr. (11th Am. l'-!''! a form, &c. Lechmei rs v. Ea DECLARATIONS ON CONTRACTS. LIQUIDATED DAMAGES. 203 and the plaintiff being justly entitled to receive the same ; the defendant, within Bis years next before the commencement of this suit, to wit, on the 1st day of January, A. D. 1845, in consideration of the premises, by a certain memorandum in writing, then signed by him, promised the plaintiff to pay the said moneys to him, the plaintiff when \_fyc. ; state the terms of the defendant's vromisel; and although [aver the happening of the condition], and all con- ditions have been performed and fulfilled, and all events and things have existed and happened, and all periods of time have elapsed to entitle the plaintiff to a performance of the defendant's contract, and to enable him to maintain this action; yet the defendant hath not paid the plaintiff the said sum of £ [or, hath not made or delivered to the plaintiff a "bill," or " promissory note," fyc. according to the terms of the contract. Add account stated], 4 LIQUIDATED DAMAGES. Obs. — Whether a specified sum is to be treated as a " penalty," i. e. a sum merely intended to cover any damage which maybe actually incurred, or as " liqui- dated damages," i.e. a sum agreed to be paid for a breach of contract, without reference to the extent of the injury sustained, depends in each particular case on the intention of the parties, to be collected from the language they have used. The intention is not determined by the mere use of the word " pen- alty," or the words " liquidated damages," but by the nature of the provi- sion and the language of the whole instrument. But if the instrument contains many stipulations, of varying importance, or relating to objects of small value calculable in money, there is the strongest ground for supposing that a stipula- tion, applying generally to a breach of all or any of them, was intended to be a penalty and not liquidated damages. Dimech v. Corlett, 12 Moore P. C. 199; Sparrow v. Paris, 31 L. J. Ex. 137; [7 II. & N. 594 ;] Keinble v. Farren, 6 Bing. 141 ; Green v. Price, 13 M. & W. 695 (in error). 16 M. & W. 346 ; see forms, ante, 135, 136, and Sparrow v. Paris, ubi sup. , Galsworthy v. Strutt, 1 Ex. 659; Mercer i). Irving, El., Bl. & El. 563 ; 2 ('bitty on PI. 219, 7th ed.; [2 Chitty Contr. (11th Am. ed.) 1314 et seq. : Whitefield v. Lew, 6 Vroom, 149; Bagley v. Peddie, 5 Sandf. 192; Perkins v. Lyman, 11 Mass. 70; Wil- liams v. Dakin, 17 Wend. 44 7. 455; S. C. 22 Wend. 2Q1 ; Heard v. Bowers, 23 Pick. 455; Shaw C. J. in Shute v. Taylor, 5 Met. 61, G7; Hodges v. King, 7 Met. 583, 588; Beale v. Hayes, 5 Sandf. 640; Hoag v. McGinnis, 22 Wend. 163; Chamberlain v. Bayley, 11 N. H. 234, 240; Brewster v. Edgerly, 13 N. H. 275; Gammon v. Howe, 14 Maine, 250; Lingley v. Cutler, 7 Conn. 291; Davis v. Gillett, 52 N. II. 126, and cases cited. Upon the breach of a con- tract secured by a penalty, the plaintiff may either sue for the penalty, assign- ing the breach — in which case he can recover the damage actually sustained, not exceeding the amount of the penalty: or lie may sue for unliquidated dam- ages for the breach, to be assessed by the jury irrespectively of the penalty. In the former case the recovery of the full penalty will be a satisfaction for all breaches of the contract, but in the latter the plaintiff may sue toties quoties there are breaches, and recover a full indemnity. See per Lord Mansfield in Lowe v. Peers, 2 Burr. 2225, 2228; Winter v. trimmer, 1 W. Bl. 395; Har- rison v. Wright, 18 East, 343; Astley v. Weldon, 2 B. & P. 346: 1 Wms. Saund. 58; Bramwell 15. in Betts v. Burch, 4 H. & N. 506, 510. Where the plaintiff sues for liquidated damage's the non-payment of the damages must lie assigned as a breach of the contract, otherwise the count will be taken as claiming unliquidated damages, and the jury may assess a smaller sum ; Hurst v. Hurst, 4 Ex. 571 ; where the contract is alternative, either to do a thing or to pay a liquidated sum, the breach must negative both the alternatives. Leigh v. Lillie, 6 H. & N 165. The plaintiff cannot sue for the liquidated damages payable on a breach of the contract and also claim an injunction to restrain the breach, but he may sue for unliquidated damages for a breach DECLARATIONS ON CONTRACTS. MANDAMUS. bum ;m injunction. Carnes o. Nesbitt, 7 II. & X. 778. On a bond aditioned not u> carry on a business within certain limits or to pay liqui- n injunction may be granted to enforce the condition. Iward, 34 L. .1. Ch. 47. mi in a Deed of Sale of a Business, to pay I. ■■ .< in the event of Defendant carrying on the I '■ That by a deed bearing date the day of , a. d. , made be- tween tin- plaintiff and tin- defendant, the defendant assigned to the plaintiff all tin- interest, benefit, ami profit to lie henceforth made from the profession or practice of a surgeon and apothecary as theretofore carried on by the defend- ant at , or from any of the patients belonging thereto, and by the said ; the defendant covenanted with the plaintiff that the defendant would not at any time afterwards, directly or indirectly, by himself or in copartnership with any other person or persons, carry on or exercise the practice or pro- Mi of a Burgeon and apothecary, or either of them, either by residing or by visiting any patient within the distance of three miles from the then place of business "f the defendant at aforesaid, and that in case of any breach of the last-mentioned covenant, the defendant would pay to the plaintiff the sum of s , to be recovered against him as and for liquidated damages, and DOt as a penalty: and the defendant afterwards carried on and exercised the practice or profession of a surgeon and apothecary, within three miles of aforesaid, by visiting - , within the said distance from that place, G. H., a patient of the defendant, in Ins character, practice, and profession of a surgeon and apothecary; yet the defendant has not paid to the plaintiff the said sum of S . Like counts. Rawlinson v. Clarke, 14 M. & "W. 187; Green v. Price, 13 M. o. W. 695 : Mallan v. May, 11 M. & W. 653; Hitchcock v. Croker, 6 Ad. & E. 438; Reynolds v. Bridge, 6 El. & BL 528. ' "Hit on a contract for the services of the defendant as a commercial trav- . stipulating that if he travelled over the same ground for any other person he should pay the /ilniittiff a stated sum. Muni ford v. Gething, 7 C. B. N. 8. I ralsworthy v. Strutt, 1 Ex. 659 ; Leighton v. Wales, 3 M. & W. 545. ( ount "a a covenant in a lease not to top trees under a penalty for each tree pped. Hurst v. Hurst, 4 Ex. 571 ; Farrant v. Olmires, 3 B. & Aid. 692; Aldridge v. Howard. 4 M. & G. 921 ; Leigh v. Lillie, 6 H. & N. 165; Spar- n.w v. Pari-. 7 H. & X. 594.] ♦ MANDAMUS. n. L. P. Act. 1854, s. 68 et seq., and post, Tort, "Mandamus." DECLARATIONS ON CONTRACTS. MARRIAGE. 205 MARRIAGE, (y) 1. Count for Breach of a General Promise of Marriage, (z) For that the plaintiff and defendant agreed to marry one another, (y) and a reasonable time for such marriage has elapsed,* and the plaintiff has always (i/) See, in general, [2 ('him- ( lontr. ( 1 1th A hi. ed.) 790 el seq.] tit. " Marriage : " de- fences and evidence, post, Pleas, tit. "Mar- riage." The promise must be mutual, ex- cept that an infant may sue, though not lia- ble .in his promise to marry ; Holt v. Ward, Stra. 937 ; [Perry v. Orr, 6 Vroom, 295] ; hut see Harvey v. Johnston, 6 C. B. 695 ; where the defendant's promise was alleged to be "in consideration that the plaintiff would go to Ireland for the purpose of mar- rying the defendant." The plaintiffs prom- ise to marry the defendant is a sufficient consideration for the defendant's promise, though defendant were then a married man, and the plaintiffs promise, therefore, not binding on her, she having no notice. De- fendant cannot take advantage of his own wrong and iion constat that his wife might not. have died before the time arrived for his marrying the plaintiff. Wild v. Harris, 7 C. B". 999; MOlward v. Littlewood, 5 Ex. 775 ; [Kelley v. Kiley, 106 Mass. 339.] But quaere, whether a promise by a married man to marry another woman after his wife's death, is good. lb. The action is sustaina- ble by a man against a woman. Harrison v. Cage, Carth. 467; 1 Salk. 24; 1 Ld. Raym. 386; 5 Mod. 511, S. C. But an executor cannot sue for the breach of a promise to marry made to his testator, and in whose lifetime it was violated, unless he alleges and proves special damage to the testator's estate. Chamberlain r. Williamson, 2 M. &S. 408; [1 Ciiitty PL 22; Hoveyv. Page, 55 Maine, 142 ; Smith v. Sherman, 4 Cash. 408, 413.] Nor can an executor be sued for non-performance of the testator's promise to many a person, not brokeu in his life- time. Hi. [See Kellev i\ Kiley, 106 Mass. 339; Shuler v. Millspaps, 71 N. Car. 297.1 The promise need not be in writing; Thill- pot v. Wallett, 3 Lev. 65 ; Harrison v. Cage, I Ld. Raym. 380; Bui. N. P. 180; [see Derby v. Phelps, 2 N. II. 515; Clark v. Pendleton, 20 Conn. 495; Lawrence v. Cooke, 56 Maine, 187]; nor need a writing containing the promise be stamped. Orford v. Cole, 2 Stark, li. 351. (z) This form, and form No. 2, are uiven by the C. L. P. Act, 1852, sch. B, Nos. 19, 20 ; and it is better to adopt it when it is not clear that the promise was to marry at a particular period, or upon a condition, &c. J in which latter cases the declaration should be framed accordingly. In the absence of an express stipulation as to the period with- in which the marriage should take place, the law infers a promise to marry " within a reasonable time after request." Harrison >-. Cage, Carth. 467; I Ld. Raym. 386, S. C. ; Pottery. Deboos, 1 Stark. R. S2 ; At- chinson v. Baker, Peake Ad. C. 103. [In such a case, it is sufficient for a female su- ing for a breach to allege her readiness to many the defendant; that a reasonable time had elapsed ; the defendant's failure to marry her, and his continued neglect and refusal to do so. Clements v. Moore, (I Ala. 35. | If the defendanl has married another, a requesl to marry plaint ill' is not necessary; see forms 2, 3; Caines v. Smith 15 M. &W. 189; Short v. Stone, 8 Q. B. 358; [see Clements v. Moore, 11 Ala. 35; Greenup v. Stoker, 3 Gil. 202 ; Blattmacher v. Saal, 29 Barb. 22;] and notice that de- fendant does not intend to perform his promise has been held a sufficient breach. Gough v. Farr, 2 C. & P. 631. | As to the effect of a positive refusal to perform a con- tract to marry, although the time specified in the performance has not arrived, see Burtis v. Thompson, 42 N. Y. 246 ; Hol- loway v. Griffith, 32 Iowa, 409; Frost v. Bought, L. R. 5 Ex. 322.] In a case where only one promise was proved, viz. to marry after the death of defendant's father, and the declaration charged only a general prom- ise, Lord Kenyon held there was a fatal variance. Atchinson v. Baker, ubi sup. But where the defendant stated to the plaintiff's father that "he had pledged himself to marry his daughter in six months or a month after Christmas," Lord Kllenborough left it to the jury, " whether they would not presume, from the circumstances, ;i general promise to marry (which the law would con- sider as a promise to marry within a reason- able time), and whether the declarations of the defendant had any other effect than to render that definite and certain which before was uncertain." Potter v. Deboos, 1 Stark. R. 82. And in Phillips v. Crutchley, 3 C. & P. 178, it was held that the jury might, from circumstances, infer and find a promise so as to support a verdict on the above gen- eral form of count, though the proof was that defendant said he would marry the plaintiff " in July." If the promise be con- ditional to marry the plaintiff within a con- venient time after the death of the defend- ant's father, it should be so declared upon. See Cole i: Cottingham, 8 C. & P. 75 ; Har- rison v. Cage, Carth. 467, 1 Ld. Raym. 386 ; Seymour v. Gartside, 2 1). & R. 55; [Clark v. Pendleton, 20 Conn. 495.] Any variance, however, may now be amended at the trial. 1 DECLARATIONS OX CONTRACTS. MARRIAGE. i.lv and willing(a) to marry the defendant; yet the defendant has lected and refused to many the plaintiff, (b) [la. Form prescribed by the Massachusetts Practice Act. And the plaintiff Bays that she and the defendant mutually promised to marry each other; and Bhe has always been ready to marry the defendant, but the defendant refusi a to perform his promise.] J. /' r Bn ' h of a Promise to marry on a Particular Day. 1 ir that the plaintiff and defendant agreed to marry one another on a day elapsed, and the plaintiff was ready and willing to marry the defendant on that -lav : yet the defendant neglected and refused to marry the plaintiff. 3. For ■ Swift, 13 Allen, I n ; Kelley v. Riley, 106 - . I looke, .")''. Maine, 1-7; Sherman o. Rawaon, i«rj Mass. 395, mo, and cases ; Grant v. Wiley, 101 M - 336; Thorn v. Knapp. 42 N. Y. 474; Smith v. Woodfine, 1 C. B. X. S. 660; Berry v. Da Costa, 1 L. R. C. P. 331 ; Greenleaf v. McColley, 14 N. H. 303 ; Frost v. Knight, L. R. 5 Ex. 322 ; Southard v. Rexford, 6 Cowen, 254. The fact of plain- tiff's seduction by the defendant, if it exists, may be taken into consideration by the jury on the question of damages. Sherman v. Rawson, 102 Mass. 395; Kelley v. Riley, 106 Mass. 339 ; Paul v. Frazier, 3 Mass. 73 : Coil?;. Wallace, 24 N. J. (Law) 291 ; Mat thews v. Cribbett, 11 Ohio St. 330; Good- all v. Thurman, 1 Head, 209 ; Matteson v. Curtis, 1 1 Wise. 424 ; Wells v. Padgett, 8 Barb. 323 ; Kniffen v. McConnell, 30 N. Y. 285 ; Tubbs v. Van Kleek, 12 111. 446 ; but see Weaver v. Bachert, 2 Penn. St. 80 ; Baldyw. Stratton, 11 Penn. St. 316. The length of time during which the engagement of marriage subsisted is an element tor the consideration of the jury. Grant v. Willey, 101 Mass. 356.] And the defendant's affluent circumstances may be given in evidence in aggravation. Per cur. Hamlin v. The Great Northern Ry. Co. 1 II. & N. 408 ; [by gen- eral evidence. Kniffen v. McConnell, 30 N. Y. 285 ; Lawrence v. Cooke, 56 Maine, 187. As to the evidence admissible in miti- gation of damages, see Button v. McCau- ley, 5 Abb. Pr. N. S. 29 ; Palmer v. An- drews, 7 Wend. 142; Thorn v. Knapp, 42 N. Y. 474 ; Johnson v. Jenkins, 24 N. Y. 252 ; Kniffen v. McConnell, 30 N. Y. 285.] (c) Where the defendant has married another, it is not necessary to allege or prove a request to marry the plaintiff. Short v. Stone, 8 Q. B. 358; Caines v. Smith, 15 M. &W. 189; Lovelock v. Frankly n, 8 Q. B. 371; [2 Chitty Contr. (11th Am. ed.) 792, and note (/).] The discharging a defendant from his promise to marry, is a sufficient consideration for a promise to pay a sum of money, and it is sufficient in declaring to aver "generally that the plaintiff did dis- charge the defendant without showing how. Baker v. Smith ; cited in Aglionby v. Tow erson, Sir T. Raym. 400. DECLARATIONS ON CONTRACTS. MASTEB AND SERVANT. 207 and willing to marry the defendant until he broke his contract as hereinafter mentioned, yel the defendant, after the said agreement, married another person. [Like counts. Caines v. Smith, J"> M. & W. 18!) ; Short v. St< , 8 (,>. B. 358. 4. For Breach of a Promise to marry, subject to the Consent of Another Person. That the plaintiff and defendant agreed to marry one another upon condi- tion that G. II. would consent to the said marriage; and the said G. H. consented to the said marriage, whereof the defendant had notice, and a rea- sonable time for such marriage afterwards elapsed, and the plaintiff has always been ready and willing to marry the defendant ; yet the defendant has neg- lected and refused to marry the plaintiff.] 5. On a Contract to pay Money to the Plaintiff in Consideration of his marrying a Certain Person, (d) For that in consideration that the plaintiff, at defendant's request, would marry A. B. [on or before the day of , a. d. ], the defendant promised the plaintiff to pay him £ within (e) after his marriage. And the plaintiff says that he did ["before" or "on" the said day of , A. D. ] marry the said A. B., of which defendant had notice, and that the period for payment of the said sum of £ has elapsed ; yet the defendant has not paid the same. [_A like count, setting out the promise verbatim. Shad well v. Shadwell, 6 C. B. N. S. 679 ; 9 lb. 159.'] MASTER AND SERVANT. 1. Indebitatus Count for Wages as a Clerk or Servant. (/) For the wages (or salary) of the plaintiff payable by the defendant to the plaintiff, for work and services by him clone and rendered as the hired [" ser- (d) By the 4th section of the statute of If a man promises another that if he will frauds, 29 Car. 2, c. 3, no action shall be marry his daughter he will give him as brought "to charge any person upon any much as he should give to any of his other agreement made upon consideration of mar- daughters, and dies, Leaving one of the latter nage." unless the agreement, or some mem- a sum of money, his executor or adminis- orandnm or note thereof, shall be in writing, trator may be sued on his promise. 2 Leon, and signed by the person to be charged 3; Cro. Eliz. 59. therewith, or some other person thereunto ( /') See a special count for non-payment by him lawfully authorized. As to what is of wages. Cuckson v. Stones, L"E1. & Bl. 240. a sufficient writing to satisfy the statute, see Under the above indebitatus count, wages 2 Vent. 361; 2 Vera. 600; Barkworth v. earned and due maybe recovered. Where Young, 26 L. J. Ch. 153 ; Warden V. Jones, the servant has been wrongfully dismissed 2 De G. & J. 76 ; Shadwell v. Shadwell, 9 C. during the currency of the period for which B. X. S. 154. See a form of declaration and the wages are payable, one of the special notes, 2 Chit. PI. 7th ed. 188; and see 1 counts following must be adopted. And'see Roll. Abr. 6 M. PL 1; Cro. Car. 194. If note (k), post, 209 ; [Wallis v. Warren, 4 Ex. the defendant's contract be under seal, the 361 ; 2 Chitty Contr. (11th Am. ed.) 855; covenant should be declared on thus: "For Harris r. Separks, 71 N. Car. 372.1 Where that the defendant by deed covenanted with a servant improperly leaves his master's em- the plaintiff to pay him £ , &c." follow- ploy ; Iluttman v. Boulnois, 2 C. & P. 510 ; ing the terms of the covenant. [2 Chitty Contr. (11th Am. ed.) 844, and (e) This may be varied to meet the terms note (d*), 845-847, and note (d 4 )] ; oris justi- of the particular contract, as to pay on the fiably dismissed during the currency of the day of marriage or to pay a sum annually, period for which the wages are payable, this - - INTRACTS. MASTER AND SERVANT. r "clerk"] of the defendant, at his request, and for [account stated, fyc. . : in 1]. 2. i - .. Murray, : Williams v. Byrne, 7 Ad. & K. 177: Gould v. Webb, 4 El. & HI. 933; 8 C. B. X. S. I'd- : 29 I.. .1. C 1'. 251; Wilkinson v. Gaston, 9 Q. B. Ba row, I Ex. 804; and oeral, 2 Chitty Contr. (1 lth Am. . When the salary i- payable quarterly, or at period, ami tin- dismissal j "f Bucb period, tiff, though he lias Berved during part of the period, Baa b rnted ".■/ the v. pari of such quar- ter's Balarj can !>'• recovered on the common indebitatus count; Smith >-. Hayward, 7 Ad. :.44 ; Ridgway <■. Hungerfbrd Market ■ I. i7i . I ■ wings v. Tia dal, 1 Ex. 295; Lilley v. Elwin, 11 Q. B. 742; even though the action lie brought after the expiration of the quarter. Goodman v. Poeock, 15 Q. B. 570, 581 ; Emmens v. El- derton, 13 C. B. 495, 507. [See Derby v. Johnson, 21 Vt. 17; Hall v. Rupley, 10 Barr, 312; Clark v. Marsiglia, 1 Denio, 317; Moulton v. Trask, 9 Met. 577; Web- ster v. Enfield, 5 Oilman, 298; Sloan v. Hay- den, 110 Mass. 141; Partington v. Wamsutta Mills, 110 Mas-. 467.] Aiit, ,\ when the dismissal takes place by mutual consent ; Thomas v. William-, 1 Ad. & E. 685; Lam- burn v. Cruden, 2 Scott X. R. 533 ; 2 M. &G. 253 ; and see Turner v. Robinson, 6 C. *.<: P. 16 ; 5 B. & Ad. 789; Lacy v. Oshaldi.-ton, 8 B. & Ad. 87, note ; in which case a new agreement to pay pro mtd may be inferred. lb. ; and see Robins v. Power, 4 C. B. X. S. 77-: [Cranmer v. Graham, 1 Blackf. 407; Rogers v. Steele, 24 Vt. 513.1 On the other hand, wages actually due before the dismis- sal cannot be recovered under this count. Hartley v. Harman, 11 Ad. & E. 798. [But where the employer has broken and deter- mined the contract on his part, the party employed may treat it as determined, and may recover on the common counts the value of his services previously earned. See Canada v. Canada, 6 Cash. 15 ; Cranmer v. Graham, 1 Blackf. 407; 2 Greenl. Ev. § 104.] As to the various remedies and the times at which they may he enforced, see notes to Cutter v. Powell, 2 S. L. Ca. 1. (h) The capacity is material here; not so the amount of the salary. Cooper v. Blick, 2 Q. B. 915. (/) The time during which the service was to continue is a material averment. Beck- ham v. Knight, 1 M. & G. 738. It would be a variance to describe the contract as an ab- solute hiring for a year, if there was any stipulation or any usage of trade for deter- mining the hiring at any earlier period, or by any particular notice. lb. ; Parker v. Ibbetson, 4 C. B. X. S. 346 ; Metzner v. Bol- ton, 9 Ex. 518 ; Baxter v. Nurse, 6 M. & G. 935 ; Lilley v. Elwin, 1 1 Q. B. 742. A gen- eral hiring is usually a hiring for a year, Beeston v. Collier, 4 Bing. 311, but there is no inflexible rule on the subject, as every case depends on its own peculiar circum- stances, and is fur the jury to determine; Fairman v. Gakford, 5 H. & X. 535 ; 29 L. DECLARATIONS ON CONTRACTS. MASTER AND SERVANT. 209 retain him in such employment on tli<' terms aforesaid during the said year, and the plaintiff entered into such employ and continued therein until he was dismissed as hereinafter mentioned. And although the plaintiff was always ready and willing (/•) to continue in the employ of the defendant on the terms aforesaid [-and to furnish such reports as aforesaid for the purpose aforesaid, for the remainder of the said year,"] and has performed all conditions [ i. 3. By a Printer of a Neivspaper against the Publisher. Cunningham v. Fonblanque, 6 C. & P. 44. 4. By an Editor of a Periodical. Baxter v. Nurse, 1 C. & K. 10 ; 6 M. & G. 935 ; and see Holcroft v. Bar- ber, 1 C. & K. 1. 5. By a Secretary. Wilkinson v. Gaston, 9 Q. B. 137. 6. By an Usher in a School. Fillieul v. Armstrong, 7 Ad. & E. 557. 7. By Governess. Todd v. Kerrick, 8 Ex. 151. 8. By Actor against the Manager of a Theatre, and Plea of Mis- conduct. Lucy v. Osbaldiston, 8 C. & P. 80 ; Webster v. Emery, 10 Ex. 901. 9. By Actor against the Manager of a Theatre for Salary. Frazer v. Bunn, 8 C. & P. 704, and by manager against actor for not per- forming according to agreement, Batty v. Melillo, 10 C. B. 282. 10. By Scene Painter. Harmer v. Cornelius, 5 C. B. N. S. 236. 11. By Accountant. Baillie v. Kell, 4 Bing. N. C. 638. 12. By Commercial Traveller. Mctzner v. Bolton, 9 Ex. 518. See Spotswood v. Barrow, 5 Ex. 110; Hart v. Denny, 1 H. & N. 609. 13. By Country Traveller to a Wine Merchant for refusing to allow him to make the stipulated Journeys. Brown v. Symonds, 8 C. B. N. S. 208. 14. By Agent or Representative of Defendant in his Business of Woollen Manufacturer. Parker v. Ibbetson, 4 C. B. N. S. 346. 15. By Manager of a Shipping Business. Smith v. Thompson, 8 C. B. 44. DECLARATIONS ON CONTRACTS. OTHER FORMS. 213 16. By Manager of a Cotton Factory, £c. Cussons v. Skinner, 11 M. & W. 1G1 ; Ilobson v. Cowley, 27 L. J. Ex. 205. 17. By Foreman of Type Founders. Beckham v. Knight, 1 M. & G. 738. 18. By Foreman and Manager of Foreign Smelting or other Manu- facturing Works. Down v. Pinto, 9 Ex. 327 ; Lomax v. Arding, 10 Ex. 734. 19. By Superintendent of Coal Works. Hartley v. Harman, 11 Ad. & E. 798. 20. By Mercantile Clerk, and Plea that Plaintiff set up a Claim of Partnership ivith Defendant. Amor v. Fearon, 9 Ad. & E. 548. 21. By Attorney against a Public Company for Breach of an Agree- ment to employ him permanently at a Salary in lieu of rendering a Bill of Costs. Emmens v. Elderton, 13 C. B. 495. 22. By Attorney's Clerk. Mercer v. Whall, 5 Q. B. 447. 23. By Courier engaged to travel Abroad, and Pleas. Fischer v. Aide, 3 M. & W. 486 ; Hochster v. De la Tour, 2 El. & Bl. 678. 24. By Ship's Carpenter, for wrongfully putting him on Shore, and Plea that he mutinied. Renno v. Bennett, 3 Q. B. 768. 25. For refusing to take Plaintiff into Defendant's Service as Farm- ing Bailiff. Snelling v. Lord Huutingfield, 1 Cr., M. & R. 20. 26. For refusing to receive Plaintiff into Defendant' s Service as Shep- herd. Clarke v. Allatt, 4 C. B. 335. 27. For not employing Plaintiff in a certain Trade, or using best Endeavors to procure him Similar Employment. Rust v. Nottidge, 1 El. & Bl. 99. 28. Against a Surgeon tvho had engaged to go on board a Ship in that Capacity for not performing his Engagement, and Pleas. Richards v. Hay ward, 2 M. & G. 54. 214 DECLARATIONS ON CONTRACTS. MORTGAGE DEEDS. inst Ms M>*ter on a Custom of the Trade, ng his 1 ses back from the Country where his Mas- him, and Plea of Misconduct. Read v. Dunsman, 9 C. & P. 588. MEDICAL ATTENDANCE. See "Apothecary," ante, 48. BONES. 1. F«r the Use of Land and Veins of Minerals. — S i form, Jones v. Reynolds, 4 Ad. & E. 805; where a person enters into the occupation of a mine, under an agreement to grant Mm a lease thereof, he takes not a mere license, but such an hereditament in respect of which use and occupation will he. lb. 2. For Non-payment of G-aleage Rent of Coal Mines. See a form, 2 Chit. PL 7th ed. 400. MORTGAGE DEEDS. 1. On the Covenant in a Mortgage Deed. (€) For that the defendant, by deed dated the day of , A. D. Formerly the remedy was by action of or covenant on the mortgage deed; by 'Alien' the covenant was ah-olute, Ev- Jones, 5 M. & W. 295, but not where it was collateral, as to pay if A. or B. did <> so: Harrison v. Matthews, 10 M. & W. 708; n, 10 Q. B. Ill ; White c. Handcock, 2 C. B. 830; though iatinctioi en the forms of action are abolished, the terms of the particular attended to in framing the declaration. If tin- money was only | in writing, it will of course e the covenant and to such demand. See Trott v. Smith, 10 12 M. ,<: W. G88; and see , ( rreenhill, G M. & G. oanl was to pay the ■ a certain time and place, it was rial variance to omit all lncn- out tin- covenant. I Dowl. 191. Declaration .■intdl f,, r himself, his : tic- covenant did not contain rord" ln-irs; "held not a variance. 11am- ' it. K. 518; 4 M 474. : form for not paying the a policy of insurance which de- ianted in the mortgage deed to an additional securitv, Bennett turton, 12 Ad. I.. I 57. Si e a .- form, Brown r. Price, 4 C. B. N. S. 598, and also Warburg v. Tucker, 5 El. & Bl. 384 ; Wodehouse v. Farebrother, 5 El. & Bl. 277. As to the amount of damages recoverable, lb.; National Ins. Co. v. Best, 2 H. & N. 605. If a mortgage deed contain no cove- nant for the payment of the principal or in- terest, an action for money lent will lie not- withstanding. Yates v. Aston, 4 Q. B. 1S2 ; Matthew i^Blackmore, 1 H. & N. 762, and see Brown v. Price, ubi sup., and ante, 28. A mortgagee may sue although he has never executed the deed. Morgan v. Pike, 14 C. B. 473 ; The Northampton Gas Light Co. v. Parnell, 15 C. B. 690. But see the dis- tinction in cases of demise by indenture. Pit- man v. Woodburn, 3 Ex. 4 ; Cooch v. Good- man, 2 Q. B. 580 ; see post, deed pleas. A municipal corporation may be sued on a covenant in a mortgage deed under their common seal, though the mortgage may hare been ultra vires, and it is no answer that the corporation has no property liable to execution in such action. Pavne v. The Mayor of Brecon, 3 II. & N. 572. By 7 I reo. 2, c. 20, s. 1, where no foreclosure suit i- pending, if the mortgagor render the principal, interest, and costs into court, it shall be deemed a satisfaction, and the court may compel the mortgagee to surrender the premises. See post, " Ejectment ; " C. L. P- Act, 1852, s. 219. DECLARATIONS ON CONTRACTS. PARTNERS. 215 covenanted with the plaintiff [this should correspond in substance with the defendant's covenant contained in the deed"], that he the defendant would pay to tlio plaintiff £ , with interesl a1 the rate of [£5] per cent, per annum, upon the day of then next ensuing, but the defendant did not pay the same. [Add a count on an account stated, which would or proper, per Lord Denman, Simmons v. Wood, 5 Q. 15. L73.] (m) 2. Declaration on a Mortgage Deed for securing the Re-transfer of Stock. Morgan v. Pike, 14 C. B. 473. NECESSARIES, (a;) For meat, drink, washing, lodging, attendance, and other necessaries, and goods found, supplied, and provided by the plaintiff for the defendant ["and other persons," if the fact] at his request, and for \_add money paid, if appli- cable, and account stated]. PARTNERS. Obs. — All cases of partnership depend on the same principles as cases of agency. [See 1 Lindley Partn. (3d Eng. ed.) 40 et seq. : 1 Chitty Contr. (11th Am. ed.) 328, 344; Lord Cranworth and Lord Wensleydale in Wheatcrofil i>. Hickman, 9 C. B. N. S. 47, 92, 99; Cox v. ffickman, 8 II. L. Cas. 268; Kilshaw v. Jukes, 3 B. & S. .S47; Bullen v. Sharp, L. R. 1 C. P. SO; East- man v. Clark, 53 N. H. 276, in which the cases are fully reviewed.] One partner cannot sue his copartner at law in any matter connected with the partnership business accounts; [1 Chitty Contr. (11th Am. ed.) 339 et seq. : Collyer Partn. § 264 et seq. ; Lawrence v. Clark, 9 Dana. 257; Gridley v. % Dole, 4 Comst. 486; Leidy v. Messinger, 71 lVnn. St. 177; Klase v. Bright, 71 Penn. St. 186, 192; Chase v. Garvin, 19 Maine, 211; Chadsey v. Har- rison, 11 Bl. 151; Kennedy v. M'Faden, 3 llarr. & J. 194; Causten v. Burke, 2 H. & Gill, 295; Bevans v. Sullivan. 4 Gill, 383; Chandler v. Chand- ler, 4 Pick. 78; Johnson v. Ames, 6 Pick. 330; Brinley v. Kupfer, 6 l'ick. 179; Henshaw v. Williams, 12 Pick. 59; 2 Lindley Partn. (3d Eng. ed.) 919 et seq.;] except in the county court, when the whole or part of the un- liquidated balance of a partnership account dues not exceed £50; 9 & 10 Vict. c. 95, s. 65; 13 & 14 Vict. c. 61, s 1. But partners may sue each other on express contracts or covenants between them, as on a covenant to account; Foster v. Allanson, 2 T. R. 482; Owston v. Ogle, 13 East, 538; Venning v. Leckie, 13 Last, 7; Elgie t>. Webster, 5 M. & W. 518; Brown v. Tapscott, 6 M. & W. 119; [2 Lindley Partn. (3d Eng. ed.) 910 et. seq.; («) A sum sufficient to cover principal remain in arrear, by half-yearly payments, ami interest. The interest which has ac- the breach may be framed rims: " Yet the crued since the day 6xed for payment is in defendant did not pay the said sum of £ strictness claimable only as • , and and the interest thereon on the said dav the declaration should therefore conclude by of , v. n. , and there is now due and claiming an amount sufficient to cover all owing £ of the said principal, and £ such interest. Simmons v. Wbod,5Q. P>. 170. for interest thereon, to the said day of The jury can give as the debt, only the prin- .v. D. . If the interest reserved by cipal and the exact arrears of interest to the the deed be £10 per cent., and the principal day on which defendant covenanted to pay be not paid at the day, interest continues the interest. See Watkins r. Morgan, 6 C. payable at the same rate of £10 percent. & P. 651 ; 3 & 4 W. 4, c. 42. If the cove- Morgan v. Jones, 8 Ex. 620. uant be to pay the principal on a day cer- (ar) For board and lodging, see ant , 87; tain, and in case of non-payment to pay in- furnished apartments, ante, 184; Chit, jr tcrest on the principal, so long as it should Cont. Index, "Infant," "Husband and Wife." DECLARATIONS ON CONTRACTS. PARTNERS. v, M. & W . 545; Barker v. Allan, 5 H. & N. 61 ; Green- ; l,-. Com. Law Rep. 501;] or on any other agreement or tr , u-ated from the partnership afEairs as not to involve any ,. ril ;il . Brian, 8 Bing. 54 ; Jackson v. Stopherd, 2 C. & In : dshaw, 9 C. B. 620; [Gibson v. Moore, 6 N. H. 547 ; 2 Vt. 480; Lawrence v. Clark. 9 Dana. 257; Gridley v. , : Gulick v. Gulick, 2 Green, 578; Clark v. Dibble, 16 u [.601; McColI v. Oliver, 1 Stewart, 510;] thus an action lies for . by one partner to the separate use of the other, but wrong- fully carried to the partnership account; Smith v. Barrow, 2 T. R. 746; or which one partner lias been compelled to pay in satisfaction of a wrongfully made by his copartner in the name of the firm. and triven For bis own debt; Cross v. Cheshire, 7 Ex.43; ante, 28 ; or a partner's share of money paid by plaintiff bis partner, in taking up a prom- made and negotiated by them for raising moneyfor the partner- shi - ; wick v. Daniell, 2 H. & N. 319; or money advanced by one partner for his ner, as bis share of the capital of the firm. French v. Styring, 2 C. B. N. S. 357; ante, 28. And if upon winding up of the business and striking a final balance of all partnership accounts, money be found due from one partner to another, it may be recovered at law; Bovill v. Hammond, 6 B. &C. 149; Coffee v. Brian, 3 Bin*. 54 : Foster v. AUanson, 2 T. R. 482; without any express promise to pay the same. Wray v. Milestone, 5 M. & W. 21; Middleditch v. Ellis, 2 27; Sedgwick v. Daniell, 2 H. & X. 319, per Bramwell B.; [1 Chitty Contr. (lltb Am. ed.) 342, and note (b) ; Fanning r. Chadwick, 3 Pick. 423; Williams v. Henshaw, 11 Pick. 82; S. C. 12 Pick. 378; Collyer Partn. § 281, in notes.] Subscribing creditors to a deed of assignment are not partners as to third per- s. Hickman v. Cox, [8 H. L. Cas. 268; S. C. 3 C. B. N. S. 522,] Dom. Tick;. A partner in a private partnership as in a mining company conducted on the -i-book principle, cannot be sued for calls due to the partnership, either by any other partner in the firm, or by the purser, though, by the rules of the company, calls in arrear shall be considered to be debts due from defaulting shareholders to the purser, one partner not being liable to be sued at law by his copartner, and there being no privity or consideration between the de- fendant and purser. Hybart v. Parker, 4 C. B. N. S. 209. It is no answer to an action on an agreement to enter into a partnership with A., thai A. bad been guilty of fraud and dishonesty towards a former partner. which w;i- unknown to the defendant at the time of entering into the agree- ment. Andrewes v. Garstin, [10 C. B. N. S. 444.] - . further, as to the law of partners, Waugh v. Carver, 1 S. L. Ca.; Smith's Mercantile Law. tit. Partners; Story's Equity Jurisprudence; Seton on D . ub voce.; Lindley on Partnership; [Collyer on Partn.; Bullen v. Sharp, L. R. 1 G. P. 86 ; st. 28 & 29 Viet. c. 86.] 1. By a surviving Partner for Goods sold, 8rc. by the late Firm, and Account stated with the Survivor, (jf) ' tmmencement in the ordinary form, not untieing the deceased. See forms mmencement where the death occurs after (he writ, ante, 15.] For money (_ V i mi on a bill of exchange by veck v. Shaftoe, 1 Esp. R. 468; Lloyd v. iving drawer ceptor, ante, 84, Archbowle, 2 Taunt. 324 ; and that even a Form 27 f the deceased part- nominal or ostensible partner, having no n. r ciiii ed as a plaintiff, l Chit, interest, and not iii fact contracting, i d I. 7th ed.22 L19, 120. In gen- not be joined as a plaintiff; Kell v. Nairi- when living, must join, by, 10 B. & C. 20; [Spurr v. Cass, L. R. 5 or the plaintiff may be nonsuited. SeePleas, Q. B. 656 ; l Lindley Partn. (3d I'm.-, ed.) "Partnei ; C. L. P. Act, 1852, ss. 490, 491]; but a partner really interested And now by G. L. P. Act, I860, s. may be joined as plaintiff, though not a con- 19, all persons supposed to be legally enti- tracting partner. Garrett v. fclandley, 4 B. tied ma;, be joined. But it seems that a & C. 664 ; Cooke v. Seeley, 2 Ex. 746; and oer ma;, be omitted. See Le- a Burviving partner must sue specially as DKCLARATIONS ON CONTRACTS. PARTNERS. 217 payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff and one E. F., since deceased, to the defendantj and for [staling any other debt, as ante, 33, Form 1, writing the words "plaintiff and the Baid E. F." for " plaintiff," "/"< proceed thus :] and for money found to be due from the defendant to the plaintiff and the said E. V. on accounts stated between them, and for money found to be duo from the defendant to the plaintiff on accounts stated between them. (~) Against a Surviving Partner. Obs. — It is never necessary to declare against a surviving partner ns such; he may be sued as having solely contracted, and in such form debts due from him in- dividually and from the late linn may lie recovered. Richards V. Heather, 1 B. & Aid". 29; ante, 15. If the cause of action were joint, and not joint and several, the executor of the deceased is not liable at law. 1 Chit. Plead. 58, 7th ed. ; ante, 119. A dormant partner may be sued, hut need not if no party to the contract. See lb. 49; Chit. jr. Contr. tit. "Partners;" Farrer v. Duflinne, 1 Car. & K. 580; De Mautort v. Saunders, B. &Ad.398; Beckham v. Knight, 1 JVI. & G. 738. Form against three partners on an agreement signed by two only, Beckham v. Drake, 9 M. & W. 79. BY ONE PARTNER AGAINST HIS COPARTNER. [1. By one Partner against his Copartner on a Stipulation to render an Account and divide Profits. Owston v. Ogle, 13 East, 538.] 2. On a Deed of Dissolution of Partnership between Plaintiff and Defendant, by which Defendant covenanted not to carry on Busi- ness within Certain Limits during a period of Seven Years, or to pay <£ 1,000 as Liquidated Damages. Galsworthy v. Strutt, 1 Ex. Go 9. 3. By a Partner against his Copartner, for improperly closing the Business Premises, in Breach of the Covenant of the latter. Hodges v. Gray, 4 Dowl. 733. 1. Against Surviving Partner on a Contract to Employ, for not con- tinuing to Employ. Tasker v. Shepherd, 6 II. & N. 577. 5. For Breach of an Agreement to enter into Partnership. Andrewes v. Gaistin, 31 L. J. C. P. 15 ; 10 C. B. N. S. 444. luch for a debt due to the firm. Jell v. date of the contract. Boyd v. Moyle, 2 ('. Douglas, 4 B. & Aid. 374; Israel v. Sim- B. G44. Dions, 2 Stark. R. 356; [1 Lindley Partn. (z) A count may also be added on a cause (.'5d Eng. ed.) 505.] But a contract with A. of action accruing entirely to the plaintiff & Co. may he described as a contract with only. Hancock v. Haywood, 3 T. 11.433; A. only if he was surviving partner at the Slipper r. Siidstone, 5" T. 11. 493; Jell v. Douglas, 4 1). ,<: Aid. 374. DECLARATIONS ON CONTRACTS. PATENT. PARTY WALLS. a wall separating adjoining lands belonging to different that the wall and the land on which it stands lining lands in equal moieties as tenants in . - B. \ . : : "3 Kent. 487, I But this • mption will be rebutted if it can be shown that all stands upon the land of each. Matts v. Hawkins, o Taunt. amon pull down the common party wall in order to r cannot maintain trespass. Per Crompton J. Stedman - El. ,\ BLl. the general law relating to party walls. Gale on Easements 5,411; Wbodfall's Landlord and Tenant. Murley v. McDermotl . - . & E. 13£ S hnan v. Smith, ubi supra. But where party walls are situ- ithin the metropolis and its neighborhood, many qi - relating to lated by "The Metropolitan Building Act, 1859," 18 & 19 ind •• The Metropolitan Building Act (amendment), 18o0," Vict. c. Tb t the building and adjoining owner respectively with regard to re- ilding party walls in the metropolis and its neighborhood are ,84. Section 88 lays down rules as I th« ses • - to be borne by the building and adjoining ov - lively. By section 89 the building owner is to deliver to the adjoining owner an account in writing of the expense to be borne in who!' in part by him. By section 90, within one month after the delivery of such djoining owner may object to such account, and in such case the dispute is to be referred as directed by s. 8-3. But if he do not object within one month then he shall be deemed to have accepted the same, and if fail to pay it on demand, it may be recovered as a debt. As to payment of i, vide s. 97. The plaintiff may recover in the c. pr ir by the act on a count for money paid. Peck v. Wood, 5 T. R. : Barrett v. Duke of Bedford. 8 T. R. 2. A c atract for the erection of a building in contravention of the building acts, cannot be enforced. St. - . 7 C. I'.. N. S. 99. In many provincial towns local acts regulate the structure of party walls; they m: inrse, be looked into before framing a declaration in an action arising thereon. *ee foi hit. on Pleading, 7 ed.; and see post, "Tor;-." PATENT. 1. Ind i Count for R numeration for License to Use. (a) I • r : • . i tyable by the defendant to the plaintiff for the license and Chanter v. Hop- C7 ; [Warner v. "Willington, 3 Drew. 523 : . Deedhnrst, Reusa v. Picksley, 2 R.X Ex. 342.] If the 12 M. & W. 82 in, 14 M. license be bv deed, the deed is an estoppel E1.&B1. 930; to the defendant's disputing the validity of :■ the pateir - >. S ,6 C. B. S. S. : Hall v. 771 : 28 L. J. C. P. 325. A> to warrani Hoi- that the patent is valid, see Hall v. Co:. - ott, 6 2 C. 15. N. S. 22 j Smith v. Scott, 6 ( to use a pa- N. S. 771. The assignor of a patent, who ; has sold it as valid, cannot, as between him- dfand the assignee to whom he has sold it, •quire a raise any question as to the patent being U M. & W. void for want of novelty. Walton v. I .uon has ater, 29 L. J. C. P. 272 B. N. S. 163; from him, [nor can the assignee dispute the validity of t was void is the patent as against the assignor. Hills an executed con- Laming, 9 Ex. 256 : Smith v. Neale, 2 C. B. . Purser, 9 El. & Bl. N. S. 67 : Lawes >■. Parser, 6 El. & Bl. 930; ■ th r. .Neale, 2 C. B. N. - -lev v. Dixon, 10 H. L. Cas. 293.] DECLARATIONS OH CONTRACTS. PENAL STATU! I 219 permission of the plaintiff, by him granted to th< .•hint at his request, to a certain patent invention, of which the plaintiff was the owner and pro- prietor, and for the defendant's use thereof under such license and pen 2. On a Deed by which Plaintiff licensed the Defendant to u*i the Plaintiff's Patented In mention for making Win il . D covenanii nil to pay £1 per T all Rope manufactured by hi to render periodically an Account of the Quantity of Ropt vred, and to allow the Plaintiff to inspect Defendant's Books, assign- ing Breaches of each of the Covenants. Smith v. Scott, 6 C. B. N. S. 771. 3. On a Deed of Covenant to pay a Royalty for every Ton of Articles manufactured under a License granted to Use a Patent, and to ren- der Accounts. Bower v. Hodges, 13 C. B. 765. ±. By Patentee of Improvements in Slubbing Machines, against Licensee on his Covenant, not to Make or Sell any Machines without applying Plaintiff's Patented Improvements. Jones v. Lees, 1 H. & N. 189. 5. On a' Covenant by a Public Company to pay a Sum of Money to the Plaintiff out of the first Calls on Shares of the Company, in consid- eration of Plaintiff covenanting to convey his Patent to the Defend- ant. Pi lb row v. Pilbrow's Atmospheric Railway Company, o C. B. 440. 6. For Breach of an Agreement to do all that was necessary for obtain- ing and perfecting a Patent about to be taken out by the Plaintiff, on the occasion of the Assignment to the Defendant of a Share then Hill v. Mount, 18 C. B. 7% 7. On an Agreement for the Sale by the Plaintiff to the Deft ndant, of a Moiety of the Plaintiff's Interest in a Patent which he had obtained, assigning Breaches for Non-payment of the Purchase-money, §c. Hall v. Conder, 2 C. B. N. S. 22. S. On an Agreement by which Plaintiff's Patent was to be assigned to and worked by the Defendant, the Plaintiff receiving Percentages upon all Goods sold to which the Patent applied, and the Defend- ant agreeing to make the necessary Periodical Payments for Stamp Duty, to keep the Patent alive, for not making such Payments, whereby Plaintiff's Patent ceast d. Smith v. Neale, 2 C. B. N. S. 67. PENAL STATUTES. See " Statutes." CLARAT10SS ON CONTRACTS. PROMISSORY NOTES. PENAL IV. See •• Liquidated Damages." PHYSICIAN. — The rule that a physician Bhall not recover his charges in an action, is founded on die genera] custom of the profession not to charge. [But see American law upon this subject IS, 49.] There is nothing to prevent his making a special contract that he shall be paid for his services, and recover- ) under such contract. The Attorney General v. The Royal College of Physicians, L -1. Ch. 757. Now by 21 & 22 Vict. c. 90, s. 31, every per- il regisfc -red under that act may recover his reasonable charges, but it is led thai any college of physicians may pass a by-law to the effect thai is their fellows or members shall be entitled to sue, and such by-law may be pleaded in bar. and see ante, " Apothecaries," Obs. -17-49. POUNDAGE. See " Sheriff," post, 244. PRINCIPAL AND SURETY. See " Guaranties," ante, 136, 137. PROMISSORY NOTES IN ORDINARY CASES, the Obs. and notes to the forms on Bills, ante, 73. 1. Payee against Maker. (6) For that the defendant, (c) on the day of — A. D. -, (d) by his promissory note, (e) now overdue, promised to pay to the plaintiff (/)•£- (//) This form is the one given bv the C. L. P. Act, L852, sch. B, 15. (c) Although the note he made by many • . yet if one only that " he" (only) without noticing the. other makers. Mountstephen v. Brook, l 15. & '. d Jones, 5 Jur. X. S. I'- echam v. Smith, El., Bl. & El. 442. b\ several persons jointly, A, by which the ri>k of a plea in abatement will !>.■ incurred, unless tli'- ■ "i- out of the jurisdiction ■ art, it should h | that the made the note. On ;i prom- ordinary form " we prom- by the' members describ- ing them - i: months after the date thereof* and the said note was duly 1 at [Messrs. E. F. and Co., Lombard Street,] for payment thereof, but has oot been paid. [Add count, #c] .-,./■ InstMa Jeer of Note fay able on Demand, or after Notice. (n) For that t!i<- defendant, on [#c], by his promissory note, now overdue, promised to pay to the plaintiff on demand £100, but did not pay the same. \IfpayaUe u — — months after notice" state the note accordingly, and aver ■•and afterwards notice was given by the plaintiff to the defendant to pay the -aid money months after notice, and the time for payment thereof elapsed before the commencement of this suit, but the defendant did not pay the same.''] 6. Against a Maker of a Note payable by Instalments where the whole Sum is due. (o) For that the defendant, on [#c], by his promissory note, promised to pay to the plaintiff £100 in manner following, viz. £20 on the 1st day of Feb- (m) When a note is made payable at a immediately, and the statute of limitations particular place in the body of the note, the begins to run from its date. No demand is note must be so described and a present- necessary ; Norton v. Ellam, 2 M. & W. 461 ; : at the particular place must be averred ; even though the defendant be only a surety. Vand :■ Donckt v. Thellusson, 8 C. 15. 812; Whitworth v. Mayor, 2 Mont, D. & D. 8. Emblin v. Dartnell, 12 M. & W. 830 ; Spin- But the notice in the second case is essential. dler v. Grellet, I Ex. :^i ; Sanderson v. Dixon v. Nuttall, 1 Civ, M. & R. 307. And B, I l l'.ast. 500; Dickinson v. Bowes, a presentment is necessary where a note is I lo ; even though the maker be not payable at or after sight. Holmes v. Kerri- at the named place to pay, or may have ab- son, 2 Taunt. 323. A promissory note pay- led and left no effects there" or other able on demand cannot be treated as over- of payment Sands v. Clarke, 8 C. due, so as to affect an indorsee with any B. 751. A promise by defendant to pay the equities against the indorser, merely because against him of due present- it is indorsed a number of years after its ment. Croxen v. Worthen, 5 M. & W. 5. date, and no interest had been paid on it ■ oil the statement that for several years before such indorsement. the note was thus specially payable, pro- Brooks v. Mitchell, 9 M. & W. 15. See I that defendant plead that he did not Bartrum v. Caddy, 9 Ad. & E. 275. An make ib id take the objection at the additional signature to a note payable on trial. Trinder v. Smedley, 1 H. & W. 104. demand placed there some years after its If the particular place ot payment be men- date, is not an alteration making the note tinned only at the foot or in the margin of void, but an addition in the nature of an in- the note, it is merely a memorandum which dorsement though on the face of the note. Ex doc- not form part of the contract, and the parte Yates, 2 De G. & J. 191. A note pay- inary form of declaration suffices. .Mas- able on demand is within the bills of ex- t.-r- etto, S C. B. 433; Williams v. change act. Maltby v. Murrells, 5 H. & N. Waring, 10 B. & C 2; Exon v. Kussell, 4 813. M (o) A promissory note payable by instal- (n) A note payable on demand is payable ments is a negotiable instrument within the DECLARATIONS ON CONTRACTS. PROMISSORY NOTES. 223 raary in the year aforesaid, £40 on the 1st day of March in the year aforesaid, and the remainder of the said sum of £100 on the 1st day of April in the year aforesaid, all which periods had elapsed before the commencement of this suit, but the defendant did not pay any of the said instalments. 7. The like, where the Times for Payment of some only of the Instal- ments have i lapsed. The form will be like the last, except thai instead of the allegation "all which periods had elapsed,"^- it should be stated, ••and although the periods for payment of the said first and second instalments \jhe instalments in arrear, according to the fact\ had elapsed before the commencement of this suit, the defendant hath not paid the same. \_Jfby the terms of the note the whole of the principal is at once to become clue if any instalment be not paid, set out the note accordingly, and show the non-payment of the instalment first in arrear, and the breach at the end ivill be that defendant hath not paid "any of the said moneys."] 8. On Note payable to E. F. or Bearer. For that the defendant, on [#c], by his promissory note, now overdue. promised to pay to E. F. or bearer £100, two months after the date thereof, and the plaintiff is the lawful bearer thereof; but the defendant did not pay the same. [Add count, and conclude as directed, ante, 220, Form l.J [8a. Form prescribed by Massachusetts Practice Act, on Note payable to Bearer. And the plaintiff says the defendant made a promissory note, a copy of which is hereto annexed, payable to G. IT. or bearer; and the plaintiff is the bearer of said note, and the defendant owes him the amount of said note and interest thereon. \_If payments are indorsed on the note, the declaration should be varied as follows: " a copy whereof, with the indorsements thereon, is hereto annexed, and the defendant owes the plaintiff* the balance of said note and in- terest thereon." If payments have been made which are not indorsed on the note, the allegation should be varied accordingly.^ 9. On a Country Bank-note payable in the Body in Toivn or Coun- try, (jp) For that the defendants, on [<.3 - c.], by their promissory note, promised to pay the hearer, on demand, at the [Truro Union Bank], or at [Messrs. E. F. and Co., bankers, Lombard Street, London], £100; and the plaintiff became the lawful hearer thereof, and the said note was duly presented for payment at the said [Messrs. E. F. and Co., bankers, Lombard Street, London, aforesaid. statute 3 & 4 Ann. c. 9; Orridge v. Slier- Oliver, 10 Q. B. 704. See Chambers v. .Mil- borne, 11 M. & W. 374; and an indorsee ler, 32 L. J. C. P. 30. If a man take a may sue on it whether all or some only of hank note or other negotiable security bond the instalments have become due. Carlon v. f'le, i.e. giving value for it, and without no- Kenealy, 12 M. & W. 139. The maker is ticc that the party from whom he takes it entitled to the days of grace for payment of has no title, he is entitled to recover upon each instalment. lb. it, although he may at the time have had the (p) As to the law of hank-notes, &c. means of knowledge of that fact, and neg- ^iven before the failure of a bank, see Tur- lected to avail himself of it. Raphael v. uer v. Stones, 1 D. & L. 122; Kobson v. Bank of England, 17 C. B. 161. DECLARATIONS ON CONTRACTS. PROMISSORY NOTES. or at the Baid Truro Union Bank (a Iment at one place only suffices)'], bat has not been paid. [Add a count on the original debt, if any ; at all events, 10. Against !' ng Tndorser, who had not due Notice of Dis- honor, but had no Effects with Maker. lit' form will be like Form 3, ante, 221, omitting the averment, " whereof the defendant had due notice," and inserting instead the following allegation, ••ami tin.- plaintiff says that neither at the time when the said note was made," to the principle, ante, Form 15, p. 79, which may easily be adapted, and add a count on the original debt and on the account stated, tyc. : see ante, 221. Form 3. IX CASE OF PARTICULAR PERSONS. 1. By h'.r. rufor or Administrator of Payee against Maker, (if) ■i,iii as inde, 7 or 13.] For that the defendant in the lifetime of the said E. F., on [#c.], by his promissory note, now overdue, promised to pay to the said E. F. £100, two months after the date thereof, but hath not paid the Bame. [Proceed as directed in Forms 19, 20, ante, 81, 82, declaring, cpedient, in another count, as there suggested."] 2. Against tin- Executor or Administrator of the Maker. Commencement as ante, 8 or 13.] For that the said E. F. in his lifetime, on [&e.]. by his promissory note, now overdue, promised to pay to the plain- tiff £l(Hi. two months after the date thereof; but the said E. F. in his lifetime did not pay. nor hath the defendant as executor as aforesaid paid the said note. [Proceed as directed, ante, 82, Form 21.] 3. By the Assigiiees of a Bankrupt Payee against the Maker. <'<>tamencement as ante, 8, Form 7.] For that the defendant, before the bankruptcy of the said E. F. on [4'^-]' by his promissory note, now overdue, promised to pay to the said E. F. £100, two months after the date thereof, but the defendant has not paid the same. And the plaintiffs also sue the defendant for money payable [fyc. ; proceed as directed, ante, 83, Forms 24, 25]. 4. By a Surviving Payee against Maker, (r) < "inmencement as ante, 15.] For that the defendant in the lifetime of one E. I nice deceased, on [<$•m- panv -hall he entitled to recover what shall be due upon such call, with inter- est thereon, unless it .-hall appear either that any such call exceeds the pre- ribed amount, or that due notice of such call was not given, or that the prescribed interval bet ween two successive calls had not elapsed, or that calls amounting i" more than the sum prescribed for the total amount of calls within one year, had been made within that period." By section 28, the production of the register of the shareholders shall be prima fad evidence of such defendant being a shareholder, and of the number and amount of his shares. See note (x), infra. Bv section 16, •■ Xo shareholder shall be entitled to transfer any share, after any call shall have been made in respect thereof, until he shall have paid all calls for the time being due on every share held by him." Where a person was a shareholder at the time the call was made, but transferred his shares before the day upon which the call was payable, it was held that he, and not the person who accepted the transfer, was liable for the amount of the call: sbury Ry. Co. v. Mount, 2 Dowl. N. S. 143: 4 M. & G. 651; Aylesbury Ry. Co. v. Thompson, 10 L. J. Q. B. 124. This decision was upon clauses of' the Aylesbury Railway Act, similar to the clauses in the more recent gen- eral act." [See'llubbersty v. Manchester &c. Ry Co. L. R. 2 Q. B. 59, 471.] See, further, post, Pleas, title, "Public Company." And as to the legality of the sale of shares, post, 227, note (/;). [Declaration against a dock com- pany for not docking vessel according to contract. Wilson v. Newport Dock Co. L. R. 1 Ex. 17 7. Power of directors to bind company. Totterdell v. The Fairham Blue Brick and Tile Co. L. R. 1 C. P. 674.] 2. Declaration for Calls. Commencement, ante, 11, Form 17.] For that (u) the defendant is the holder (x) of [100] shares in the said company, and is indebted to the said (u) In some of the railway acts passed 739; [East Gloucestershire Ry. Co. v. Bar- • the general companies clauses con- tholomew, L. R. 3 Ex. 15.] But a defendant solidation act, then; were clauses containing is not liable to pay calls unless the shares similar forms for declarations. See a form which have been allotted to him are specifi- <>f declaration on such an act, Edinburgh, cally numbered and appropriated by num- fi Newhaven Railway Company v. ber. The Irish Peat Co. v. Phillips, 1 B. & Hebblewhite, 6 M. & \Y. mil'." The form in S. 598; Wolverhampton New Waterworks the text is that authorized bv the companies Co. v. Bawksford, 11 C. B. N. S. 456. But chin- - 15, 8. 26, and should be strictly if the defendant was a shareholder when the forma and law, The Newport calls were made, but transferred them before Rawes, 3 Ex.476; Birkenhead L. the calls became payable, he and not his trans- Wilson, Hi. 478 ; Wilson v. fereeis liable for the calls. Aylesbury By. Birkenhead L. & C. Ry. Co. 6 Ex. 626; Co. v. Mount, 4 M. & G. 65l"; Aylesbury Wolverhampton New Waterworks Co. v. Ry. Co. v. Thompson, 10 L. J. Q. B. 124; Hawkesford, 29 L. J. C. P. 121. Wolverhampton New Waterworks Co. v. tx) The defendant must have been a Hawkesford, 29 L. J. C. P. 121 ; 31 L. J. C. holder of -bans when the call was made. P. 184; [6 C. B. N. S. 336; 11 C. B.N. Wolverhampton New Waterworks Co. v. S. 456.] A transferee may, however, be a Hawkesfoi [6 C. B. N S. .5.36 ; 11 C. B. shareholder though his name is not on the N. S. a:,i) ;| S8 L.J. C. P. 2V1; Belfast & register of shareholders, if it is on the regis- Connty Down R. Co. V. Strange, 1 Ex. ter of transfers when the calls is made. lb. DECLARATIONS ON CONTRACTS. PUBLIC COMPANY. 227 company in £500, in respect of a call (y) of £5 upon each of the said shares, [or "two several calls, the first of the Baid calls being a call of £ upon each of the said shares, and the other of the said calls being a call of £ upon each of the said shares"] duly made by the said company, whereby an action hath accrued to the said company by virtue of "The Companies Clauses Consolidation Act, 184.0," and also by virtue of an act of parliament made and passed in a session of parliament held [4"c], and intituled "An act [tyc], (z) [the special railway act of the company], to demand from the defendant the said sum of £ , yet the said defendant has not paid the said sum. (a) 3. For refusing to transfer Railway Shares or Scrip bought by the Plaintiff from the Defendant. (6) Tempest v. Kilner, 2 C. B. 300 ; Stephens v. De Medina, 4 Q. B. 422 ; This form docs not apply in an action against an executor for calls made in the testator's lifetime. Birkenhead L. & C. Ry. Co. v. Cotesworth, 5 Ex. 22G. See Ness v. Armstrong, 4 Ex. 21 ; Wills v. Murray, lb. 843. An infant may become a shareholder in a railway company, and if sued as in the form for calls, a plea of infancy when the calls were made will lie no defence, unless it be shown that he is still an infant or has re- pudiated the shares ; North Western Ry. Co. V. Sir Michael, 5 Ex, 114; Birkenhead" L. & C. Ry. Co. v. Rilcher, lb. 121 ; Cork & Ban- don Ry. Co. v. Cazenove, 10 Q. B. 535. As to the liability of a bankrupt or his assignees for calls made on shares of the bankrupts, see The South Staffordshire Ry. Co.?;. Burn- side, 5 Ex. 129. The company cannot sue an original subscriber for such calls, as upon a common law liability arising upon the subscription contract — the covenants there- in being made with third persons — not with the company. Wolverhampton New Waterworks Co. v. Hawksford, 28 L. J. C. P. 242 ; [6 C. B. N. S. 336 ; 7 lb. 795; 11 lb. 456.) It seems that defendant must be on some register of shareholders, lb. 29 L. J. C. P. 121 ; 81 L. J. C. P. 184, with the name of Such holder inserted therein, as the holder of shares numbered and specifically appropriated to him ; but it is not necessary that such register should have been sealed at the ordinary meeting of the company. lb. ; The Irish Peat Co', v. Phillips, 1 B. & S. 598; 30 L. J. Q. B. 114. If the book of shares of the company be made by statute prima facie evidence of the propietorahip, it must have had the seal of the company when the call was made. Cheltenham & Great Western Union Ry. Co. v. Price, 9 C. & P. 55; and see London Grand Junction Ry, Co. v. Freeman, 2 M. & G. 607; and Lon- don & Brighton Ry. Co. r. Fairclough, 2 M. & G. 674. But a non-compliance with mere directory regulations of the statute, as to the mode of keeping such book, or the time within which it is to be made or scaled, would not render it inadmissible; South- ampton Co. v. Richards, 1 M. & (i. 44S ; nor because it does not contain the names of all the shareholders. London Grand Junction Ry. Co. v. Graham, 1 Q. B. 271 ; London Grand Junction Ry. Co. v. Freeman, 2 M. & G. 606. A book bond fide intended to be valid and to operate as such may be valid de facto, as a register. Wolverhampton New Waterworks Co. v. Hawksford, 29 L. J. C. P. 121 ; 31 L. J. C. P. 184; [7 C. B. N. S. 795 ; 11 lb. 456.] Although the regis- ter is prima facie evidence against a defend- ant, it is not conclusive: he may show that de jure he is not a shareholder. Shropshire Union Ry. Co. ?•. Anderson, 3 Ex. 401 ; Waterford, Wexford, Wicklow & Dublin Ry. Co. v. Pidcock, 22 L. J. Ex. 146. As to actions on the covenant on the deed of set- tlement, Smith v. Geldsworthy, 4 Q. B. 430 ; Hutts v. Giles, 12 M. & W. 492. (y) If the action is brought to recover the amount of several calls, the declaration should be framed accordingly. So where the calls are payable by instalments, which they may be; The North Western Ry. Co. v. Mc- Michael, 6 Ex. 273; The Birkenhead L. & C. Ry. Co. v. Webster, 6 Ex. 277 ; but all the instalments must be due before an action can be brought for any one instalment. Am- bergate &e. \iy. Co. V. Coulthard, 5 Ex. 459 ; see forms, Cork & Bandon Ry. Co. v. ( roode, 13 C. B. 618; Belfast &" County Down Ry. Co. v. Strange, 1 Lx. 739; New- port &c. Ry. Co. v. Ilawes, 3 Ex. 476. A gem r.il meeting is not necessary to enable the directors to make a call. Sheffield, Ash- ton-under-Lyne & Manchester Lv. Co. v. W Icock, 7 M. & W. 574. (; i This allegation, that the action accrues by \ i it i f the genera] and special acts, is necessarj to entitle plaintiff to this statutory form of remedy. Moore v. The Metropoli- tan Sewage Manure Co. 3 Kx. 333. (a) The plaintiffs are entitled to interest upon the calls tine by virtue of the statute, s. 2."> ; and a count for interest, therefore, is not necessary. But the sum claimed here must be sufficient to cover the debt and all interest due up to the time of trial, vid. Obs. ante, 225. (/') If the transfer requires a deed, then an allegation to the effect that the deed was 228 DECLARATIONS ON CONTRACTS. PUBLIC COMPANY - . Powell v. JesBOpp, 18 C. B. 336; Watson v. Spratley, 10 Ex. 222 ; Stray v. Russell, 1 El. & El. 888, 916. [4. By Vendor of Shares against Purchaser for not accepting. That in consideration that the plaintiff would sell to the defendant shares in the Company at the price of f> per share, and would do all things necessary on the plaintiff's part to transfer the said shares to the defendant on the day of then next, the defendant promised the plaintiff that he would at the time aforesaid accept the transfer of the said shares, and do all things necessary on his part in that behalf, and pay the said price for the same upon the transfer thereof ; and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plain- tiff to have the said promise of the defendant performed by him ; yet the defendant did not accept the transfer of the said shares, nor do all things neces- sary on his part in that behalf, nor pay the said price for the same, and by reason thereof the plaintiff, as the legal owner of the said shares, became liable to pay and paid calls made upon the said shares, subsequently to the said breach by the defendant of his said promise. \_Such calls must be claimed specially, and are not recoverable under the common count for money paid. Sayles v. Blane, 14 Q. B. 205.] 5. Against a Railway Company upon a Judgment of the Sheriff for the D.amages assessed by his Jury as Compensation in respect of the Plaintiffs Lands having been injuriously affected by the Defend- ant' 's Paihvay, and for the Costs of the Inquiry. Mortimer v. The South Wales Ry. Co. (c) 1 El. & El. 375 ; Fletcher v. Great Western Ry. Co. [4 H. & N. 242]. (d) prepared and tendered is necessary. By grave & Hart's case, L. E. 5 Eq. 204 ; King's "The Companies' Act, 1862," s. 22, the Case, L. E. 6 Ch. Ap. 196.] The proper mode of transferring shares is provided by measure of damages is the difference be- the regulations of each particular company, tween the price agreed on, .and the market Shares in companies which require an act price when the contract was broken, but not of parliament to carry them into effect, such for a further advance, which took place af- as railways, &c. may be legally sold by parol terwards at the time of the actual issuing of during provisional registration. Young v. the scrip. Shaw v. Holland, 15 M. & W. Smith, 15 L. J. Ex. 81 ; [15 M. & W. 121.] 136 ; Tempest v. Kilner, 3 C. B. 253. See Afterwards the transfer must be by deed, 8 other forms, Stewart v. Cautv, 8 M. & W. & 9 Vict. c. 16, s. 16, but cannot "be made 160; Hibblewhite v. M'Morine, 6 M. & W. until the transferrer has paid up all calls 212 ; Hare v. Waring, 3 M. & W. 362 ; [Field due. lb. See Wordsworth on Joint Stock v. Lelean, 6 H. & N. 617.] Companies, 5th ed. 362. If the transfer be (c) Where the lands are injuriously af- not legally completed, there is no implied fected to some extent, the quantum of dam- liability on the part of the purchaser to re- ages given by the jury cannot be disputed imburse the seller for calls which he is sub- — the inquisition is conclusive. [Liability of sequently obliged to pay. Humble v. Lang- a railway company to pay compensation in ston, 7 M. & W. 517. A shareholder may respect of mines lying under land taken by transfer to a man of straw, and so get rid of them. Great Western Eailway v. Bennett, his liability if the transfer is made bona fide. 36 L. J. Q. B. 133.] Re The Phoenix Life Assurance Co. ex parte (d) But it may be shown by defendant Hatton ; 31 L. J. Ch. 340 ; [2 J. & H. 441 ;] that the lands are not injuriously affected Ex parte Costello, 30 L. J. Ch. 113; [2 De G., within the meaning of the act, and that the F.& J. (Am. ed.) 302, and cases in note (1).] subjoined matters of complaint are nol In re Mexican & South American Co. ex within the 68th section. Chapman v. Mon- parte Hyam, 29 L. J. Ch. 243 ; [1 De G., F. & mouthshire Railway & Canal Co. 2 H. & N J. 75, and cases in note (1) ;] Ex parte Budd, 267. 31 L. J. Ch. 4 ; [3 De G., E. & J. 297 ; Mus- DECLARATIONS ON CONTRACTS. PUBLIC COMPANY. 229 Ons. — There is a right to compensation under the act, where the injury is done under the powers given to the company by act of parliament. ' Winn- the cause of injury is uot authorized by the companies' act, the common law remedy by action remains. Imperial Gas Light &C. Co. v. Broadbent, H II L. Las. 600. J L 6. Against a Railway Company for the Amount awarded to the Plain- tiff upon an Arbitration under the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18, ss. 23-68, as Compensation for Lands inju- riously affected. Evans v. Lancashire & Yorkshire Ry. Co. 1 El. & Bl. 754. [What is the subject of compensation under lands and railway clauses consolidation acts, Riekett v. Metropolitan Ry. Co. L. R. 2 H. L. 175 ; Brand v. Hammersmith Ry. Co. L. R. 1 Q. B. 130; L. R. 2 Q. B. 223; Beckett v. Midland Ry. Co. L. R. C. P. 241 ; L. R. 3 C. P. 82. As to what the sections as to costs under lands clauses act apply to, Copp v. The Midwales Ry. Co. L. R. 1 Q. B. 342. When verdict was returned for less than the offer made by company, that offer including plaintiff's costs, Balls v. Metropolitan Ry. Co. L. R. 1 Q. B. 337.] 7. Declaration for recovery of the Costs of an Arbitration under s. 34 of the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18. Martin v. The Leicester Waterworks Co. 3 H. & N. 463. Obs. — The costs are recoverable by action, although the plaintiff had not eiven any notice to the company of the amount of compensation claimed, and the company in consequence had not offered any sum to the plaintiff. Martin v. ihe Leicester Waterworks Co. 3 H. & N. 463. THE COMPANIES' ACT, 1862. Obs. -"The Companies' Act, 1862," 25 & 26 Vict. c. 89 (which is now the act regulating trading companies), s. 70, enacts that, "In any action or suit brought by the company against any member to recover any call or other moneys due from such member in his character of member, it shall not be necessary to set forth the special matter, but it shall be sufficient to allege that the defendant is a member of the company, and is indebted to the com- pany in respect of a call made or other moneys due, whereby an action or suit hath accrued to the company." The calls on shares depend upon the regulations for management made by each company, which, of course, must be considered before commencing or de- fending an action. See ss. 14, 15, and 16, and Table A in the first schedule Ot 1116 not competent to the adventurers or shareholders in a cost-book mine to stipulate by their rules that unpaid calls shall be recovered as a debt due from the defaulting shareholder to the purser of the mine. Hybart v. Parker, 4 C. 11. X. S. 209. A call founded on colonial acts is a simple contract debt. The Welland Railway Co. v. Blake, 6 II. & N. 410, and form. For Calls due to a Company registered under the Companies' Act, 1862. The Company, Limited, being a company completely registered accord- ing to the ••Companies' Act, 1862," by , their attorney, sue . For that the defendaut is a holder (e) of shares in the said company, and is indebted to the plaintiffs in £ for a call of £ \_or " for two calls of the respective sums of £ and £ "] upon each of the said shares duly made by the company upon the defendant, as holder of such shares, in accord- ance with the said act ; and the defendant has not paid the same. REAL PROPERTY. See "Vendors and Purchasers." RECOGNIZANCE OF BAIL. (/) On a Recognizance of Bail in Q. B., C. P., or Ex. The venue is local, and shoidd be laid in Middlesex ; the recognizance, when entered, being a record. The sum demanded will be the amount recovered by the judgment against the principal, unless the recognizance were taken in 0. P., and in such case the recognizance is taken in a sum certain, which is to be demanded in an action thereon.~\ For that the defendants, on [<$•l. B. [As to cases in which this action lies, in the American states, see 1 Chitty PI. 181 el seq. and notes; 3 Kent, 483, note (/).] It lies against him who takes or commands the taking of the goods, or both together. Com. Dig. Repl. C. ; Jones v. Johnson, 5 Ex. 962. Hut it does not lie for goods taken in execution ; Com. Dig. Repl. D. ; the claimant must, in that case, interplead. [A creditor at whose suit an attachment is made of goods not the property of the debtor is not, in Massachusetts, liable in replevin for the goods attached, either alone or jointly with the attaching officer. Rich- ardson v. Reed, 4 Gray, 441. In this case Metcalf J. said : " In our opinion, replevin cannot be maintained, in this commonwealth, against a person who has no possession or control of the goods to be replevied. Replevied goods cannot be restored and returned to a person from whom they were never taken, and such person cannot rightfully be made a defendant, sole or joint, in an action of replevin." Hall v. White, 106 Mass. 599. But see Allen v. Crary, 10 Wend. 349; Stewart v. Wells, 6 Barb. 79; Sharp v. Whittenhall, 3 Hill, 5 76.] The sheriff used to grant replevin and take replevin bonds. Now, however, by 19 & 20 Vict. c. 108, s. 63, the powers and responsibilities of the sheriff have ceased, and the registrar of the county court of the district in which any distress subject to replevin shall lie taken is empowered, subject to certain regulations, to approve of replevin bonds, and to grant replevins, and to is- sue all necessary powers in relation thereto, and such replevin is to be ex- la) Be particular in making this sura not be amended. Davis v. Dunn, 1 Dowl. igree with the record, as a variance would N. S. 317. 232 DECLARATIONS ON CONTRACTS. REPLEVIN. Obs. ecuted by the high bailiff. Actions on replevin may be commenced in the superior or in the county courts, and in both cases the registrar shall, at the in- Btance of the person whose goods have been distrained, cause the same to be replevied to such party on his giving securities (s. 64), in the former case as pointed out by s. G5, and in the latter by s. 66. Replevins may, at the in- stance of the defendant, be removed into any of the superior courts by cer- tiorari in certain cases. S. 6 7. There is an appeal on questions of law from the county court, where the amount of rent or damages exceeds V.20. S. 68. The security to be given by the replevisor is in the form of a bond with sure- ties given to the distrainor at the costs of the replevisor, subject to the con- ditions of ss. 65 and &6 respectively. S. 70. The duty of the registrar under s. 70 is only to see that the bond is executed by the party to the cause with sureties. And as to the sufficiency of the sureties, it is incumbent on the registrar to exercise proper and vigilant discretion; but he is not called upon to examine further, nor can he incur any liability. Young v. The Brompton &c. Waterworks Co. [1 B. & S. 675]. By the C. L. P. Act, 1862 (23 & 24 Vict. c. 126), s. 22, the provisions of the 19 & 20 Vict. c. 108, which relate to replevin, shall be deemed and taken to apply to all cases of replevin in like manner as to the cases of replevin of good's distrained for rent, or damage feasant. By s. 23, the plaintiff in re- plevin may. in answer to an avowry, pay money into court in satisfaction in like manner and subject to the same proceedings as to costs and otherwise as upon a payment into court by a defendant in other actions. And by s. 24, such pa\ nient into court in replevin shall not, nor shall the acceptance thereof by the defendant in satisfaction, work a forfeiture of the replevin bond. 1. On a Replevin Bond conditioned to sue in a Superior Court. (#) For that the defendants, by their bond, made the day of , A. D. , acknowledged themselves to be bound to the plaintiff in £ , to be paid to him, subject to the condition that if the defendant A. B. should, within one week from the date of their said bond, commence an action of replevin against the plaintiff in her majesty's court of , at Westminster, for taking and unjustly detaining certain goods and chattels of the plaintiff in the said bond mentioned, and prosecute such action with effect and without delay, and unless judgment be obtained thereon by default, should prove before the said court of that he, the said defendant A. B., had good ground for believing that the title to the hereditament, in respect to which the distress was made, was in question, [or " that the title to the toll, market, fair, or franchise in respect of which the distress was made was in question," or " that the rent or damage in respect of which the distress was made exceeded £20,"] and should make a return of the said goods and chattels if return thereof should be awarded ; and the said defendant A. B. did not, within one week from the date of the said bond, commence an action of replevin against the said plain- tiff, [or "and although the said defendant A. B. did commence an action of replevin within one week from the date of the said bond, yet he did not pros- ecute such action with effect and without delay,] (h) [or set out the breach com- plained of, according to the particular facts, and conclude :] whereby the said bond became forfeited. 2. On a Replevin Bond conditioned to sue in a County Court, (i) A count may be readily framed from the above, reference being had to the bond itself and the section of the act of parliament. (g) 19 & 20 Vict. c. 108, s. 65. defendant. Tummons v. Ogle, 6 El. & Bl. (It) These words mean, to carry the suit to 571 ; 25 L. J. Q. B. 403. a successful termination, and are applicable (i) 19 & 20 Vict. c. 108, s. 66. to a case removed to a superior court by the DECLARATIONS ON CONTRACTS. REWARD. 2:;h KHWAHI). 1. For a Reward offered by the Defendant by Public Advertisement for the Discovery of an Offender, (/c) For that the defendant puhlished an advertisement, whereby, after reciting that W. C. had been robbed, and that there was great reason to suppose that he had been murdered, the defendant promised that whosoever would give such information as might lead t<> a discovery of the murderer of the said W. C. should, on conviction, (I) receive a reward of £20, and that any person concerned therein, or privy thereto, except the person who actually committed the offence, should be entitled to such reward, and every exertion used to pro- cure a pardon ; and by the said advertisement, the defendant directed that the said information should be given, and application for the said reward be made, to him, or Mr. W., solicitor, Hereford ; and the plaintiff, not being the party who actually committed the said offence, gave (m) to the defendant such in- (k) Williams v. Carwardine, 5 C. & P. 566; 4 B. & Ad. 621, S. C. ; [England v. Davidson, 11 Ad. & E. 856 ; Neville v. Kelly, 12 C. B. N. S. 740; Tamer v. Walker, L. K. 1 Q. B. 641 ; S. C. L. R. 2 Q. B. 301 ;] and see forms of declarations in Lancaster V. Walsh, 4 M. & W. 16; [Neville v. Kelly, 12 C. B. N. S. 740 ;] and other forms in the cases cited infra. For offering premium for best plan for a building ; Ward v. Lowndes, 28 L. J. Q. B. 265 ; [for discovering a lost child ; Fallick v. Barber, 1 M. & S. 108.] When a person gives the required informa- tion, he may sue as upon a contract, although there is no express agreement to which the plaintiff and defendant were parlies. Roll. Ab. 6 M. PI. per Martin B. ; Warlow v. Harrison, 1 El. & El. 295 ; per Lord ('amp- bell, Gerhard v. Bates, 2 El. & Bl. 488. [In Loring v. Boston, 7 Met. 411, Shaw C.J. said : " The offer of a reward for the detec- tion of an offender, is an offer or proposal on the part of the person making it, to all persons, which any one capable of perform- ing the service may accept at any time be- fore it is revoked, and perform the service ; and such an offer on one side and acceptance and performance of the service on the other, is a valid contract, made on a good consider- ation, which the law will enforce." See Bymmes v. Frazier, 6 Mass. 344 ; Freeman v. Boston, 5 Met. 56 ; Crawshaw v. Rox- bury, 7 Gray, 374; Wentworth v. Day, 3 Met. 352; Gilmore v. Lewis, 12 Ohio, 2*81 ; Furman v. Parke, 1 N. J. 310 ; Denton v. Great Northern Railway Co. 5 El. & Bl. 860, 865, 868. The offer or proposal should be acted upon within a reasonable time. Loring v. Boston, 7 Met. 409. Such an offer may be withdrawn or revoked at any time before acceptance. Sanford J. in Crocker v. New Lond. Willimantic & Palmer R. R. Co. 24 Conn. 261 ; Freeman v. Boston, 5 Met. 56, 57.] In general the person to sue is he who Jirst gives the required information ; Lancaster v. Walsh, 4 M. & W. 16 ; Thatcher v. England, 3 C. B. 254 ; though led to in- form, not by the proffered reward, but by other motives. W illiams v. Carwardine, 4 B. & Ad. 621. A constable, may give the in- formation and claim the reward. England v. Davidson, 11 Ad. & E. 856. The infor- mation must be given with the intention of its being acted on, and not in the course of cursory conversation ; Lockhart v. Barnard, 14 M. & W. 674 ; Tullock v. Barber, 1 M. & S. 10S; and if two give it, both must join in the action. Lockhart v. Barnard, ubi sup. If A. communicate the means by which the c. Parker, 2 DowLN. S. 845; ante, I l 9, >(e made and signed by the parties to be charged by such contract, or their agents there- unto lawfully authorized." And by 9 Geo. 4, c. 14, s. 7, it is enacted, after referring to the 1 7th section of the statute of frauds, li That the said enact- ment shall extend tO all contrails for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, procured, or provided, or lit or ready for delivery, or some act may he requisite for the making or completing thereof, or rendering the same fit for delivery." As to the law of cases upon these enactments, see Smith's Mercantile Law; Blackburn on the Contract of Sale; [1 Chitty Contr. (11th Am. ed.) 540 et sea. and notes; Benj. Sales (1st Am. ed.), § 90 et seq. ; Gibson v. Holland, L. 11. 1 C. P. 1; Vanderberg v. Spooner, L. R. 1 Ex. 316; Noble v. Ward, L. R. 1 Ex. 117 ; L. R. 2 Ex. 135; Wilkinson v. Evans, L. R. 1 C. P. 407.] Damages. — In actions for not accepting goods, the measure of damages is the difference between the contract price and the market price on the day when the goods ought to have been received by the purchaser, for the seller may sell his goods and obtain the market price for them. Boorman v. Nash, 9 B. & C. 145 ; Barrow v. Arnaud, 8 Q. B. 595, 610 ; Phillpotts v. Evans, 5 M. & W. 475; [Benj. Sales (1st Am. ed.), § 758 et seq. and cases in notes; Gor- don v. Norris, 49 N. H. 376; Allen V. Jarvis, 20 Conn. 38; Haskell v. Hunter, 23 Mich. 305 ; Whelan v. Lynch, 65 Barb. 329 ; Griswold v. Sabin, 51 N. H. 167; Northup v. Cook, 39 Missou. 208; Orr v. Bigelow, 14 N. Y. 556; Ballantine v. Robinson, 46 Penn. St. 177; Dana v. Fiedler, 12 N. Y. 40; 2 Chitty Contr. (11th Am.ed.) 1331, and cases in note, (s); Whitmore v. Coates, 14 Missou. 9; Thompson v. Alger, 12 Met. 428, 443; Ganson v. Madigan, 13 Wise. 37.] And if no difference is proved, the plaintiff is only entitled to nominal damages. Valpy v. Oakley, 16 Q. B. 941; Griffiths v. Perry, 1 EL & El. 680. In an action for the non-delicery of goods, the damage is the difference between the contract price and the market price of similar goods at the time when the delivery ought to have taken place. Gainsford v. Carroll, 2 B. & C. 621 ; Chinery v. Viall, 5 H. & N. 288 ; Leigh v. Paterson, 8 Taunt. 540; Josling v. Irvine, 6 II. & N. 512; Startup v. Cortazzi, 2 Cr., M. & R. 165 ; [Benj. Sales (1st Am. ed.), § 758; 1 Chitty Contr. (11th Am. ed.) 621, and note (c); 2 lb. 1331; Worthen v. Wilmot, 30 Vt. 555; Clement & Hawkes Manuf. Co. v. Meserole, 107 Mass. 362; Deming o. Grand Trunk R. R. Co. 48 N. H. 455; Cutting '•. Grand Trunk R. R. Co. 13 Allen, 381; Gordon v. Norris, 49 N. II. 376; McNaught v. Dodson, 49 111. 446.] If there is no difference the damages will be only nominal; supra. [Where there is no market for such goods to which the buyer can resort to replace them, the seller is liable for the special damage caused by his breach of contract, which the buyer cannot prevent accruing by purchasing the goods elsewhere. Borries v. Hutchinson, 18 C. P. N. S. 445; Benj. Sales (1st Am. ed.), t; 876; Furlong v. Polleys, 30 Maine, 493, 494; McHose t\ Fulmer, 73 Penn. St. 365. Where the buyer has contracted to resell the goods at a greater price than the market price at the time of de- livery, he cannot in general recover the additional profit of his bargain as dam- ages. Williams v. Reynolds, 6 B. & S. 495; and set: Josling i>. Irvine, 6 II. & N. 512; Randall v. Baper, EL, I>1. & Kl. 84. It cannot be taken into con- sideration in assessing tne damages that an enhanced price was agreed for and paid in consideration of delivery at the time specified. Brady v. Oast- ler, 33 L. J. Ex. 300.] If a person contracts with another for the sale of a particular article, and 236 DECLARATIONS ON CONTRACTS. SALE OF GOODS. Obs. breaks his contract, the proper damages are such as may fairly and reason- ably be considered either as arising naturally from the breach of contract, or such as mnv reasonably be supposed to have been in the contemplation of the parties al the time they made the contract as the probable result of it. Hadley o. Baxendale, 9 Ex. 341; [Wilson v. Newport Dock Co. L. R. 1 Ex. 177:] Smeed v. Toord, I El. & El. 602; Portman v. Middleton, 4 C. B. N. S. 322; [Scott '•. Boston & New Orleans Steamship Co. 106 Mass. 468; Wil- liams r. Reynolds, 6 B. & S. 495; Cate v. Care, 50 N. H. 149; Home v. Midland Railway Co. L. R. 8 C. P. 131, and remarks in this case on Hadley v. Baxendale, supra; 2 Chitty Contr. (11th Am. ed.) 1325, and note (h), where this subject is fully discussed, and the cases cited ; Osde v. Vane, L. R. 2 Q. B. 275; L. R. 3 Q. B. 272; Cory v. Thames &c. Co. L. R. 3 Q. B. 181; British Columbia Saw Mill Co. v. Nettleship, L. R. 3 C. P. 499.] In Fletcher r. Taylcur, 17 C. B. 21, Jervis C. J. and Willes J. were of opinion that, as in the case of breach of a contract to pay money, the interest of the money is the measure of damages; so in the case of a breach of contract to deliver a chattel, the measure of damages should be the average profit made by the use of such chattel. See, also, Ger v. The Lancashire & Yorkshire Railway Co. 6 H. & N. 211. The purchaser has now a further remedy than by action for non-delivery. He may have a specific delivery of the goods. By the mercantile law amend- ment act, 1856, 19 & 20 Vict. c. 97, s. 2, it is enacted, "In all actions and suits in any of the superior courts of common law at Westminster, or Dublin, or in any court of record in England, Wales, or Ireland, for breach of con- tract tu deliver specific poods for a price in money, on the application of the plaintiff, and by leave of the judge before whom the cause is tried, the jury shall, if they find the plaintiff entitled to recover, find by their verdict what are the goods in respect of the non-delivery of which the plaintiff is en- titled to recover and which remained undelivered; what (if any) is the sum the plaintiff would have been liable to pay for the delivery thereof; what damages (if any) the plaintiff would have sustained if the goods should be delivered under execution, as hereinafter mentioned, and what damages if not so delivered; and thereupon, if judgment shall be given for the plaintiff, the court, or any judge thereof, at their or his discretion, on the application of the plaintiff, shall have power to order execution to issue for the delivery, on payment of such sum (if any) as shall have been found to be payable by the plaintiff as aforesaid, of the said goods, without giving the defendant the option of retaining the same upon paying the damages assessed; and such writ of execution may be for the delivery of such goods; and if such goods so ordered to be delivered, or any part thereof, cannot be found, and unless the court, or such judge or baron as aforesaid, shall otherwise order, the sheriff, or other officer of such court of record, shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, or within the juris- diction of such other court of record, till the defendant deliver such goods, or, at the option of the plaintiff, cause to be made of the defendant's goods the assessed value or damages, or a due proportion thereof; provided that the plaintiff shall, either by the same or a separate writ of execution, be en- titled to have made of the defendant's goods the damages, costs, and inter- est in such action or suit." 1. Indebitatus Count for Goods bargained and sold. Ante, 33, 34. (o) 2. Indebitatus Count for Goods sold and delivered. Ante, 33, 34. (p) (o.) This form is given by the C. L. P. (p) As to when the common indebitatus Act, 1852, sch. B, 1. As to when it lies, count lies, see ante, 27. see ante, 28. DECLARATIONS ON CONTRACTS. SALE OF GOODS. 237 3. Vendor against Vendee of Goods sold, for not accepting them. ( Skinner, 2 B. & P. 447 ; ante, 172, note (/) 240 DECLARATIONS ON CONTRACTS. SALE OF GOODS. are ready and willing to deliver the same at Hull to the defendant, and the plaintiffs delivered to the defendant an invoice of the said hemp, and drew a bill of exchange for the amount of the purchase-money of the said hemp, pay- able at six months date, and requested the defendant to accept the same accord- ing to the terms of the said bargain and sale ; and although [here aver per- formance of conditions precedent, as ante, 39], yet the defendant did not accept the said bill of exchange, and has not paid for the said hemp. 11 . Vendee against Vendor, for not delivering Goods, (c) For that the plaintiff bargained and agreed with the defendant to buy of him, and the defendant then sold to the plaintiff, certain goods [or " chests of tea"], at £ , to be delivered by the defendant (d) to the plaintiff on [fyc. or " on request," or " at," according to the fact], and to be paid for by the plaintiff to the defendant on delivery [or " as follows," Sfc. ; if it be paid for by bill, state the fact, alleging a readiness to accept or give it, Sfc.~\ ; and although [here aver performance of conditions precedent, as ante, 39], (e) yet the defend- ant did not deliver the said goods to the plaintiff, whereby the plaintiff hath been deprived of the gains and profits which would have accrued to him from the delivery of the said goods. [Add account stated.] [11a. Another Form for Same. And the plaintiff says he purchased of the defendant the following goods, viz : , for the sum of one hundred dollars, to be paid therefor on delivery thereof ; and the defendants promised to deliver the same on the day of , at the defendant's store in ; and on said day the plaintiff de- manded said goods at said store, and tendered to the defendant said sum of one hundred dollars in payment of the same, and the defendant refused to deliver the same to the plaintiff. Like counts. Ramsden v. Gray, 7 C. B. 961 ; Porritt v. Baker, 10 Ex. 759. For not delivering goods agreed to be delivered as required ; Jones v. Gibbons, 8 Ex. 920 ; to be delivered in certain quantities weekly ; Josling v. Irvine, 6 H. & N. 512 ; for not delivering the residue after part delivery under the con- tract ; Bentley v. Dawes, 9 Ex. 666 ; for not delivering timber under contract to deliver at a foreign port ; Gabriel v. Dresser, 15 C. B. 622. Wb. Purchaser against Vendor on a Contract for the Sale of (roods expected by a Certain Ship, for not delivering. That it was agreed by and between the plaintiff and the defendant, that the defendant should sell and deliver to the plaintiff, and that the plaintiff should buy from the defendant, tons of [Petersburg hemp], expected to arrive at by the ship , at the price of $ per ton from the quay, and (c) See another form, &c. Wood v. Tas- the fact, and that be was ready and willing sell, 6 Q. B. 234 ; and see Chit. jr. Contr. to take them away, with a request to defend- Index, " Sale." See another form, Salter v. ant to be allowed to take them, &c. Woollams, 2 M. & G. 651. Form with spe- (e) A tender of the price need not 1»' cial damages for not being able to fulfil sub- stated ; but a request of delivery must be contract. Josling v. Irvine, G H. & N. 512 ; alleged where the contract is that the goods Smeed v. Foord, 28 L. J. Q. B. 178. When should be delivered on request. Bach V, the vendee may sue for non-delivery, vide Owen, 5 T. R. 409 ; Radford v. Smith, 3 M. Obs. sup. 234. [As to time of delivery, Cod- & W. 254. Demand of delivery by servant jington v. Palaeologo, L. R. 2 Ex. 193.] Squier v. Hunt, 3 Price, 68. (d) If plaintiff was to send for them, state DECLARATIONS ON CONTRACTS. SALE OF GOODS. 241 on the terms that if the ship should be lost or the [hemp] should be damaged on the voyage, the said agreement should he considered void for such quan- tities as might be lost or damaged, the quality to be of fair average of the season, and payment to be made by the plaintiff by six months' acceptance, or cash in fourteen days, less two and a half per cent, discount, at the plaintiff's option ; and after the making of the said contract, the said ship arrived at aforesaid with tons of the said [hemp] on board not damaged ; and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plaintiff to the delivery of the last mentioned goods as aforesaid, yet the defendant did not deliver to the plaintiff the said tons of the said [hemp], (f) lie. Purchaser against Vendor on a Contract for the Sale of Goods sold by Description, for delivering Goods inferior to the Description. That it was agreed by and between the plaintiff and the defendant, that the defendant should sell and deliver to the plaintiff, and that the plaintiff should buy and accept from the defendant, sacks of flour, at the price of shillings per sack, of the same quality as certain flour which the defendant had then lately sold and delivered to G. H. ; and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plaintiff to have such flour delivered as aforesaid, yet the defendant did not deliver to the plaintiff any such flour as aforesaid, but delivered to the plaintiff, as and for the flour so agreed to be sold and delivered as aforesaid, certain flour not of the same quality as the flour which he had so sold and delivered to the said G. H., but of an inferior quality, whereby the plaintiff lost the price paid by him to the defendant for the said flour, and the profits which he would have derived from the performance of the said agreement by the defendant. (#)] 12. Vendee against Vendor, on his Promise to return a Sum deposited with him, if Plaintiff should, on Trial of a Horse, decline to pur chase it. For that the defendant was possessed of a certain horse, and was desirous of selling the same, and it was agreed between the plaintiff and the defendant that the plaintiff should pay to and deposit with the defendant a certain sum of money, and that the defendant should let the plaintiff have the said horse on trial, on the terms that if the plaintiff did not upon such trial like the said horse, and declined buying the same, he the defendant would take back tho said horse, and would return the said sum of money to the plaintiff, when he ( f) [Like counts. Moore v. Campbell, he delivered on the safe arrival of " a cer- 10 Ex. 323 ; Fischel v. Scott, 15 C. B. 69. tain ship; Hale v. Rawson, 4 C. B. N. S. Like counts on contracts for the sale of 85. [All held absolute on the arrival of the goods " on arrival " by a certain ship ; Boyd ship, although without the goods on hoard.] ». Siffkiit, 2 Camp. 326; "on arrival" be- Count on a contract of sale of 500 tons of fore a certain day ; Idle v. Thornton, 3 nitrate of soda, to form the full cargo of Camp. 274 ; "to arrive" by a certain ship ; a ship named, for delivering only the full Lovatt v. Hamilton, 5 M. & W. 639; John- cargo, bein<^ less than the quantity, Bourne son v. Macdonald, 9 M. & W. 600. [All v. Seymour, 16 C. B. 337.] held to be conditional on the arrival of the (*), 361, note (i 1 ) ; Bain v. Fothergill, L. R. 7 H. L. 158 ; Drake v. Baker, 5 Vroom, 358 ; King v. Buekman, 9 C. E. Green, 298; 1 Cbitty Contr. (11th Am. ed.) 435, and note (n), 437, and note (p). 1. Indebitatus Count for the Purchase-money of an Estate sold and conveyed. ("s ; Winton r. Sherman, 20 Iowa, 295; l'aul &c. v. Brown, 9 Minn. 157; Seeley v. Howard, 13 Wise. 336; Guthrie v. Thomp- son, 1 Oregon, 353 ; Arledge v. Rooks, 22 Ark. 427 ; Tavlor v. Longworth, 14 Peters, 175.] 252 DECLARATIONS ON CONTRACTS. VENDORS, ETC. the defendant's part, and thereby also the plaintiff afterwards was forced to resell (h) the said tenements at a loss, and also incurred expenses, and is other- wise injured [add account stated], 4. For not accepting a Lease according to Agreement. Forster v. Rowland, 30 L. J. Ex. 396 ; [7 H. & N. 103 ; Bond v. Rosling, 1 B. & S. 371 ; De Medina v. Norman, 9 M. & W. 820.] 5. Vendor against Vendee, on a Public-house Agreement, for not accept- ing an Assignment of the Term, and paying the Amount of the Val- uation of Stock, Sfc. (i) For that the plaintiff was possessed, (k) for the residue of a term of years, of a tenement and premises, with the appurtenances, and of certain beer and other licenses, and household goods, fixtures, stock in trade, and effects then being on the said premises ; and thereupon, by an agreement made between the plaintiff and the defendant, it was agreed that [here copy the material parts of the agreement in the past tense and aver performance of conditions precedent, as ante, 39 ;] yet the defendant [slate the breaches according to fact], whereby the plaintiff has been deprived of the benefits which would have accrued to him from the completion of the said agreement by the defendant, and has been put to great expense in preparing papers and writings, and paying brokers' and appraisers' (I) charges, and other things relative to the sale and assign- ment and valuation of the premises, and was compelled to sell and assign the premises, together with the fixtures, goods, and effects, at a loss, and is other- wise injured [add account for fixtures bargained and sold and delivered, and account stated]. 6. Vendor against Vendee of a Term of Years, for the Premium agreed to be paid for the Assignment of the Lease. For that the plaintiff was possessed of a certain messuage, lands, and premises, with the appurtenances, for the residue of a term of years then unexpired (m) [or, if the plaintiff, although he was the seller, had not the legal (h) See this special damage more fully tion, for not completing, Laythoarp v. Bry- Btated, Home v. Wingfield, 3 M. & G. 35. ant, 1 Bing. N. C. 421 ; and another form, The proper measure of the damage is that Maylam v. Nbrris, 2 D. & L. 829; Wilson v. actually sustained bv the vendor in conse- Wilson, 14 C. B. 616. quence of the vendee not accepting the con- (k) As to proof of this, if traversed, veyance, such as the costs he has been put Laythoarp v. Bryant, supra. Lessor's title to by reason of the non-completion of the to be proved. Souter v. Drake, 5 B. & Ad. contract, and the decrease of the value of 992 ; Hall v. Betty, 4 M. & G. 410 ; and see the lands, if an v. Where default was made Brashier v. Jackson, 6 M. & W. 549 ; Coe v. by th«' purchaser, and the property resold Clay, 5 Bing. 440. It is sufficient if the plain.. ■m a reduced price, the vendor can recover tiff can procure a title at the time when he from the defaulter, in addition to the deposit, calls upon the defendant to complete. De which was forfeited by the conditions, only Medina r. Norman, 9 M. & W. 820 ; Salis- so much of the difference between the two bury v. Hatcher, 2 Y. & C. N. C. 54._ As to prices, and of the expenses of resale as the an agreement by parol for an assignment deposit did not cover; Ockenden v. Henlev, of a leasehold interest not exceeding three El., Bl. & El. 485; not the whole amount of vears, see Barrett v. Rolph, 14 M. & W. the purchase-money. Laird v. Pim, 7 M. & 348; see, also, Pollock v. Stacy, 9 C. B. 10, W. 4«2. See Worthington v. Warrington, 33, and notes to Spencer's case, 1 S. L. C. 8 c. B. 184. (/) See Thurnell v. Balbirnie, 2 M. & W. (i) Observe the notes to form 3. See 186 ; Carpenter v. Blandford, 8 B. & C. 576. form against the. vendee of a lease by auc- (m) The averment of the kind of interest DECLARATIONS ON CONTRACTS. VENDORS, E'IC. 253 title, and was only beneficially interested, state that "before and at [#c], the plaint ill" was well able and entitled to sell and cause to be assigned a certain messuage [#&], for tbe residue " [<$•) .See forms, Wilde v. Fort, 4 Taunt, law to show the lessor's title, unless there 334; Hodges v. Earl of Litchfield, 1 Bing. be an express stipulation to the contrary. N. C. 492. For not deducing a good title, Hall v. Betty, 4 M. & G. 410; Souter v. or conveying. Rippinghall v. Lloyd, 5 B. Drake, 5 B. & Ad. 992. See Ogilvie v. & Ad. 742; Simmons v. Ileseltine, 5 C. B. Foljambe, 3 Mer. 53. But a contract for N. 8.554. the sale of an agreement for a lease does 254 DECLARATIONS ON CONTRACTS. VENDORS, ETC. tenements according to the said conditions aforesaid [if the action be for not making a good title : "yet the defendant did not on the day of , a. d. -, (q) deduce or make, or cause to be made to the plaintiff a good title (r) to the said tenements "], whereby (s) the plaintiff has lost the benefits and advantages which would have accrued to him from the completion of the said purchase by the defendant, and has been put to charges and expenses in nego- tiating and a< r reeino- for the purchase of the said tenements, and having the ' same conveyed, and in investigating the title thereto, and in endeavoring to procure the completion of the said agreement on the defendant's part, and has lost the use of the said money paid as a deposit, (t) and of money provided for the completion of the said purchase [add money had and received, if appli- cable, and account stated~\. (q) If no time be fixed by the. agreement for making a title, the declaration must aver that a reasonable time for doing so has elapsed. Sansom v. Rhodes, 6 Bing. N. C. 261. (r) The vendee has a right to have the title for which he contracted, and not any good title the vendor may offer to make in- stead. Foster v. Boggart, 15 Q. B. 155. See Stevens v. Austen, 30 L. J. Q. B. 212. The court will not consider whether the title is of a doubtful description, such as a court of equity would not compel an unwilling purchaser to take, but simply whether the defendant has or has not a legal title to convey. Boyman v. Gutch, 7 Bing. 379. But in a subsequent case, it has been held that "a good title" meant such a title as the court of chancery would adopt as a ground for compelling specific perform- ance, and such a title as would be a good answer to an action of ejectment. Jeakes v. White, 6 Ex. 881. But a title to an es- tate which is dependent on a question of fact which it is impossible to regard as rea- sonably certain, cannot be deemed a good and sufficient title as between vendor and purchaser ; and the latter, when such is the case, is entitled to treat the title as insuffi- cient, and recover back his deposit. Sim- mons v. Heseltine, 5 C. B. N. S. 554. (s) Form, &c. Hodges v. Lord Litchfield, 9 Bing. 713. In that case (see 1 Bing. N. C. 492), it was held, that in an action for damages brought by the vendee against the vendor for not making a good title to an es- tate, the vendee cannot recover for expenses incurred in negotiating the purchase, or for having the estate surveyed. 2d. That he is entitled to recover charges incurred in inves- tigating the title, including the searching for judgments, but not the costs of drawing and engrossing a conveyance of the estate, the same having been prematurely pre- pared. 3d. That the vendor, having filed a bill in equity against the vendee, for a spe- cific performance of the contract, which was dismissed with costs, and which were paid by the vendor, the vendee could not recover his extra "costs beyond the taxed costs. 4th. That the vendee could not recover costs incurred in investigating the title to the estate after the filing the bill in equity. 5th. That the vendee is entitled to be paid at the rate of £5 per cent, for interest on his deposit money, although the court of chancery had ordered payment at the rate of £4 per cent. Han-lip v. Padwich, 5 Ex. 615. In Sherry ». Oke, 3 Dowl. 349, it was held that interest, paid by a purchaser upon money borrowed by him to complete the purchase, and kept idle pending an en- deavor by the vendor to clear up the title, may be recovered as damages against the latter in an action for breach of his con- tract. See Hanslip v. Padwich, supra. If the vendor without fraud is unable to make a title, the vendee can only recover the money he has paid, with interest and ex- penses. Pounsett v. Fuller, 17 C B. 660; Walker v. Moore, 10 B. & C. 416 ; and not for the loss of his bargain ; Sikes v. Wild, 1 B. & S. 587 ; Pounsett v. Fuller, [17 C. B. 660 ;] 25 L. J. C. P. 145 ; otherwise if he knew at the time he made the contract that he had no title. Robinson v. Barman, 1 Ex. 850 ; Hopkins v. Grazebrook, 6 B. & C. 31 ; [Engell v. Fitch, L. R. 3 Q. B. 314; Lock v. Furze, 19 C. B. N. S. 96 ; S. C. L. R. 1 C. P. 441 ; 1 Chitty Contr. (1 lth Am. ed.) 435, and note (n), 437, and note (p) ; 1 Sugden V. & P. (8th Am. ed.) 358, and notes (c) and (c 1 ), 361, note (i 1 ).] See, further, Chit. jr. Contr. Index, " Vendors." The auctioneer is liable only for the deposit paid on a sale by auction, and not for interest or expenses, and should be sued for money had and received. Chit, jr. .Contr. tit. "Vendors;" Harrington v. Boggart, 1 B. & Ad. 577. (t) If the contract is rescinded, the de- posit may be recovered as money had and received." Simmons v. Heseltine, 5 C. B. N. S. 554. See Evans v. Robins, 31 L. J. Ex. 465. Contra, if vendee makes default, and the deposit is forfeited by the condi- tions. Beavan v. M'Donnell, 9 Ex. 309. DECLARATIONS ON CONTRACTS. WAGER. 255 [9a. On an Agreement to convey Land on a Certain Day, Plaintiff to pay One Hundred Dollars Cash and give a Note for Four Hundred Dollars, secured by a Mortgage of the Land. And the plaintiff says the defendant made an agreement with the plaintiff, in writing, a copy whereof is hereto annexed ; and on the day of , the plaintiff tendered to the defendant one hundred dollars, and also a note for four hundred dollars [describing it'j, and a mortgage of said land, to secure the payment of said note, and demanded of the defendant a conveyance of said land [following the terms of the agreement], (u) OTHER FORMS BY VENDEE AGAINST VENDOR. 10. For not delivering Abstract according to Conditions of Sale. Smith v. Panner, 1 M. & G. 802. 11. For Violation of a Contract to sell free from all Incumbrances. Ballard v. Way, 1 M. & W. 526. 12. On an Agreement stating that Defendant had waived the Con- ditions of Plaintiff's delivering an Abstract. Seaton v. Booth, 4 Ad. & E. 528. 13. For not making a Good Title, averring Plaintiff's Readiness to complete and pay the Purchase-money on having one. Metcalf v. Fowler, 6 M. & W. 830; Sansum v. Rhodes, 6 Bing. N. C. 261. 14. By an Administratrix against the Vendor of a Freehold Estate, for not delivering an Abstract of Title to the Intestate, whereby he incurred Expense, Spc. See form held good on demurrer, Orme v. Broughton, 10 Bing. 533 ; see 1 Williams on Executors, 5th ed. 717. 15. Vendee against Vendor of a Life Interest in Stock, sold by Auction, to recover Expenses, $c. the Title being defective, $c. Boyman v. Gutch, 7 Bing. 379. WAGER. Post, Pleas in Contract, " Gaming." («) [In England, it is incumbent on the expense, unless there is a stipulation to the sendee to prepare the conveyance, even contrary. Such is the rule iu Massachusetts, where the agreement is silent on the subject. Maine," Pennsylvania, Illinois, Mississippi, Poole v. Hill, 6 M. & W. 835, 841 ; 1 Sug- Ohio, Texas, Iowa, Minnesota, Wisconsin, den V. & P. (8th Am. ed.) 241. But the and Oregon, Arkansas, and other states. rule is otherwise in most of the American See the authorities cited in 1 Chitty Contr. states, where it is held that under a contract (Uth Am. ed.) 424, and note (t), 425; 1 to convey real estate, the vendor is bound to Sugden V. & P. (8th Am. ed.) 241, note (m) ; prepare the deed of conveyance at his own ante, 251, note (g).\ 256 DECLARATIONS ON CONTRACTS. WARRANTY. WAGES. See " Master and Servant," ante, 212. WAREHOUSE ROOM. For work done by the plaintiff, and for warehouse room by him provided in the stowing, keeping, and taking care of certain goods for the defendant, at his request, and for [add account stated]. WARRANTY. Obs. — " Every affirmation at the time of sale of personal chattels, is a warranty, provided it appears to have been so intended." 1 S. L. C. 161; [1 Chitty Contr. (11th Am. ed.) 639, 640, and note (& 1 ) and cases cited; 643, notes (q) and (r) and (s) and cases cited; Benj. Sales (1st Am. ed.), § 613, and notes (/■) and (rn) and cases cited.] Such representation, to be binding, must be made pending the contract. Hopkins v. Tanqueray, 15 C. B. 130; West v. Jackson, 16 Q. B. 280; [1 Chitty Contr. (11th Aimed.) 646; Vin- cent v. Leland, 100 Mass. 432; Roscorla v. Thomas, 3 Q. B. 234; Tuttle v. Brown, 4 Gray, 457; Congar v. Chamberlain, 14 Wise. 258; Benj. Sales (1st Am. ed.), § 611, and note (c) ; Shaw C J. in Hogins v. Plympton, 11 Pick. 97, 99, 100.] Thus, a representation of the soundness of a horse, made the day before a sale by auction, is no part of the contract. Hopkins v. Tan- queray, ubi supra. [See Wilmot v. Hard, 11 Wend. 584; Bryant v. Crosby, 40 Maine, 9. Construction of a warranty of soundness of a horse for one month, seller to be notified of unsoundness within the month. Chapman v. Gwyther, L. R. 2 Q. B. 463.] In a sale of specific goods, the vendor war- rants the existence of the goods. Coutourier v. Hastie, 5 H. L. Cas. 673; Hastie v. Coutourier, 9 Ex. 102; Risbourg v. Bruckner, 3 C. B.N. S. 812; [1 Chitty Contr. (11th Am. ed.) 517, note (g l ) and cases cited, 625, and note (»i); Allen v. Hammond, 11 Peters, 63; Rice v. Dwight Manuf. Co. 2 Cush. 80, 86; Wilde J. in Thompson v. Gould, 20 Pick. 139; Benj. Sales (1st Am. ed.), § 77.] But there is no implied warranty of title from the mere contract of sale of a personal chattel, and a vendor is not liable for a bad title, unless there be fraud on his part, or an express warranty, or what is equivalent thereto by declarations or conduct. Morley v. Attenborough, 3 Ex. 500; [but see Eichholz v. Banister, 17 C. B. N. S. 708; Benj. Sales (1st Am. ed.), § 639.] And such warranty may be raised by the usage of trade, or by the nature of the trade carried on by the vendor. Morley v. Atten- borough, supra. And where goods are bought in a shop professedly carried on for the sale of goods, the shopkeeper must be considered as warranting that any purchaser will have a good title to keep the goods purchased. lb. So also if the vendor know and conceal that he has no title. Early v. Garrett, 9 B. & C. 928. [It is very generally held in the American states that upon all sales of personal property by one in possession, the law implies a warranty of title. 2 Kent, 478; Shattuck v. Green, 104 Mass. 42; Mc&night v. Devlin, 52 N. Y. 399, 401; Hoe v. Sanborn, 12 N. Y. 552; 1 Chitty Contr. (11th Am. ed.) 626, note (o) and cases cited; M'Coy v. Artcher, 3 Barb. 323; Benj. Sales (1st Am. ed.), § 641, note («'); Whitaker v. Eastwick, 75 Penn St. 229. But where the goods sold are in the possession of a third party at the time of the sale, there is no such warranty, and the purchaser buys at his peril. Hunting- don v. Hall, 36 Maine, 501; McCoy v. Artcher, 3 Barb. 323; Dresser v. Ains- worth, 9 Barb. 619; Edick v. Grim, 10 Barb. 445; Long v. Hickingbottom, 28 Miss. 7 72; Scranton v. Clark, 39 N. Y. 220.] In general, a warranty of qual- ity, or soundness, or goodness, or value of goods sold is not implied, however lar. 523; or by proof of the breach of warranty in reduction of damages; Mondell v. Smith, 8 M. & W. 858; Street v. Blay, 2 B. & Ad. 456; but he cannot _;ive evidence of consequential damage. lb.; [Benj. Sales (1st Am. ed.), § 898 ; Harrington v. Stratton, 22 Pick. 510 ; Dorr v. Fisher, 1 Cush. 275; Mixer p. Coburn, 11 Met. 561; Goodwin v. Morse, 9 Met. 278; Cook v. Castner, 9 Cush. 266; Carey v. Guillow, 105 Mass. 18; Wells J. in Starr DECLARATIONS ON CONTRACTS. WARRANTY- 259 Obs. Glass Co. v. Morey, 108 Mass. 573; Walker v. Boisington, I:; \'t. 608; Muller v. Eno, 14 N. Y. 597; Reab v. McAllister, 8 Wend. L08; Still p.Hall, 20 Wend. 51 ; Batterman v. Pierce, 8 Hill, 171; Butler t^ Northumberland, 50 N. II. 83; Barker v. Plingle, 2 Strobh. 242.] In instances of broken warranty, where the price has been paid, the vendee may recover it back upon the common indebitatus count for money bad and received, as <>n a failure of the original consideration, in either of the follow- ing cases: 1st. If there he an express stipulation in the original agreement that the contract should be rescinded and void if the warranty be untrue. 2dly. If both parties subsequently agree to rescind the bargain; or, 3dly, in cases of fraud, with an niter to return the goods. See Gompertz v. Denton, Cr. & M. 207; Street v. Blay, 2 B. & Ad. 459; Edwards v. Chapman, l M. & W. 231 ; [Bcnj. Sales (1st Am. ed.), § 8S8, and note (a) ; 1 Chitty Contr. (11th Am. ed.) 648, 649, and notes. In Massachusetts and some other states, the purchaser may rescind the contracl and return the goods in all cases of breach of warranty express or implied. Bcnj. Sales, § 888, note (u). In Dorr?;. Fisher. 1 Cush. 271, 274, Shaw C. J. said: "To avoid circuity of action, a warranty may be treated as a condition subsequent, at the election of the vendee, who may, upon a breach thereof, rescind the contract and re- cover back the amount of his purchase-money, as in case of fraud." Fos- ter J. in Morse v. Brackett, 98 Mass. 209 ; Boardman v. Spooner, 13 Allen, 361; Conner v. Henderson. 15 Mass. 319; Kimball v. Cunningham, 4 Mass. 502 ; Perley v. Balch, 23 Pick. 283; Bartlett v. Drake, 100 Mass. 176; Tay- mon v. Mitchell, 1 Md. Ch. 496 ; Hyatt v. Boyle, 5 Gill & J. 121; Franklin v. Long, 7 Gill & J. 407, 419 ; Butter v. Blake, 2 Harr. & J. 353 ; Marston v. Knight, 2!> Maine, 341 ; Cutler v. Gilbreth, 53 Maine, 176 ; Matteson v. Holt, 43 Vt. 299.] In other cases the declaration must be special to try the ques- tion of warranty. If the goods have been returned, the vendee can recover the whole price ; if not, the difference between the value and the price. Cas- well v. Coane, 1 Taunt. 566. Where the title fails and there is no warranty proved, the vendee may recover the price paid by him under the indebitatus count, as upon a failure of consideration. Chapman v. Speller, 14 Q. B. 621 ; Morley v. Attenborough, 3 Ex. 500; [Benj. Sales (1st Am. ed.), §§ 423, 633.] A special action for the breach of a warranty lies without offering to return the goods, or complaining of the breach; see Patteshall v. Tranter, 3 Ad. & E. 103 ; [Benj. Sales (1st Am. ed.), § 899, and cases in note (r) ; Vincent v. Leland, 100 Mass. 432 ; Kellogg v. Denslow, 14 Conn. 411: Osborne v. Fuller, 14 Conn. 529 ; Douglass Axe Manuf. Co. v. Gardner, 10 Cush. 88; Warin. Blay, 2 B. & Ad. 459. By 25 & 26 Vict. c. 88, s. 19, it is enacted, that when any person, after 31st December, 1863, sells or contracts to sell any chattel or article with a trade- mark thereon, the sale or contract shall be deemed to have been made wjth a warranty or contract that such trade-mark is genuine and true, and not forged - or counterfeit, and not wrongfully used, unless the contrary is ex- pressed in writing. And by section 20, in such case w r hen there is any description, statement, or other indication upon any cask, bottle cover, &c. of or respecting the num- ber, quantity, measure, or weight of such chattel or article, or the place or country in which such chattel or article shall have been made, manufactured, or produced, the sale or contract shall be deemed to have been made with a warranty or contract by the vendor, that no such description, statement, or other indication is in any material respect false or untrue unless the contrary is expressed in writing. 260 DECLARATIONS ON CONTRACTS. WARRANTY. 1. Declaration for the Breach of a Warranty of the Soundness of a Horse, (x) For that the defendant, by warranting (y) a horse to be then sound and quiet to ride, sold the said horse to the plaintiff; yet the said horse was not then (r) sound (a) and quiet to ride, (b) [Add any special damage that may be applicable, e. g. : ] And the plaintiff, in the bond fide belief that such war- ranty was true, afterwards sold the said horse to L. M. by warranting the same to be then sound and quiet to ride, and thereby the plaintiff was com- pelled to repay (c) the price thereof to the said L. M. [and also damages to compromise an action at law which the said L. M. brought against the plaintiff on such last-mentioned warranty] ; (d) and the plaintiff has thereby incurred expense in causing the said horse to be examined by a veterinary surgeon, and in keeping (e) and taking care of the same.] [If the price has been paid to the defendant, add a count for money had and received, (f) and on an account stated.'] [la. Count for the Breach of a Warranty of a Horse (framed expressly in Assumpsit). That in consideration that the plaintiff would buy of the defendant a horse, (x) See Obs. supra. (y) [See Cooper v. Landon, 102 Mass. 58, 60.'] (z) This means at the time of the sale. Bailey r. Forest, 2 C. & K. 131. (a) Meaning of the term " sound." Kid- dell v. Burnard, 9 M. & W. 668 ; Holyday v. Morgan, 28 L. J. Q. B. 9 ; [Woodbury v. Robbins, 10 Cush. 520 ; Stephens?;. Chappell, 3 Strobh. 80; Roberts v. Jenkins, 21 N. H. 116, 119, 120; Kornegay v. White, 10 Ala. 255 ; Brown v. Bigelow, 10 Allen, 244, 245 ; Fondren v. Durfee, 39 Miss. 324 ; Hook v. Stovall, 21 Geo. 69; Crouch v. Culbreath, 11 Rich. 9 ; Merrick v. Bradley, 19 Md. 50 ; Thompson v. Bertrand, 23 Ark. 349 ; Wash- burn v. Cnddihy, 8 Gray, 430 ; Walker v. Hoisington, 43 Vt. 608 ; Benj. Sales (1st Am. ed.), §§ 619, 620; 1 Chitty Contr. (11th Am. ed.) 654, 655, and notes and cases cited.] The substance and meaning or exact terms of the warranty must be stated. If it were a warranty, with an exception as to a par- ticular defect, &c. the exception should be stated. See Jones v. Cowley, 4 B. & C. 445. See, farther, Poltherd v. Puncheon, 2 D. & B. 10; Button v. Corder, 7 Taunt. 405; Gray v. Cox, 4 B. & C. 108; [Deming v. r,42 N. H. 165. Meaning of the term "gentle." Bodurtha v. Phelon, 2 Allen, 347, 348.] [b) This form is thus far given by the C. L. P. Act, 1852. (<•) [Special damage. Mullett v. Mason, L. R. 1 C. P. 559.] See this special dam- age stated, Clare v. Maynard, 8 Ad. & E. 519. The loss of a bargain in the resale cannot be recovered. lb. (d) As to recovering the costs of an action irising out of the warranty if the buyer of a horse with a warranty, relying thereon, resell him with warranty, and being sued thereon by his vendee, offers the defence to his vendor, who gives no directions as to the action, the plaintiff defending that action is entitled to recover the costs thereof from his vendor as part of the damages occasioned by his breach of warranty. Lewis v. Peake, 7 Taunt. 153 ; and see, particularly, Collen v. Wright, 7 El. & Bl. 301 ; 8 El."& Bl. 647 ; Bramley v. Chesterton, 2 C. B. N. S. 592; Poor r." Davis, 30 L. J. Q. B. 257 ; Randall v. Roper, 1 El., Bl. & El. 84. See, also, Josling v. Irvine, 6 H. & X. 512; Dingle v. Hare, 7 C. B. N. S. 145 ; [Reggio ». Brag- giotti, 7 Cush. 166; Armstrong v. Perry, 5 Wend. 535.] But he cannot recover such costs if by reasonable examination of the article he could have discovered the breach of warranty before the resale. Wrightup v. Chamberlain, 7 Scott, 598. (e) This expense may be recovered if the horse was tendered to the defendant within a reasonable time after the unsoundness was discovered, otherwise not. Caswell v. Coare, 1 Taunt. 566 ; Ellis v. Chinnock, 7 C. & P. 169 ; Chesterman v. Lamb, 2 Ad. & E. 129. But in any event the keep can be recovered only to the time when a fair opportunity of reselling occurs. M'Kenzies ". Hancock, R. & M. 436, per Littledale J. ; [Shaw C. J. in Reggio v. Braggiotti, 7 Cush. 169, 170; 1 Chitty Contr. (11th Am. ed.) 658.] If the horse' is returned, the measure of damage is the price paid for him ; if he is not re- turned, it is the difference between his real value and the price given. Caswell v. Coare, ubi sup. (f) This count will be allowed with the special one. Cahorn v. Burford, 13 M. & W. 136. DECLARATIONS ON CONTRACTS. WARRANTY. 2G1 at the price of $ , to be paid by the plaintiff to the defendant for the same, the defendant promised the plaintiff that the said horse was then sound; and the plaintiff bought the said horse of the defendant and paid him the said $ for the same; yet at the time of the making of the said promise by the defendant the said horse was not sound, whereby the said horse was of no use or value to the plaintiff, and the plaintiff has lost the expense incurred by him in keeping and feeding the said horse and attempting to cure the same.] ( Bing, 270; Mabcrley V. Shep- Serd, 10 Bing. 99; Elliott v. Pybus, 10 Bing. 512 ; Alexander v. Gardner, 1 ling. N. C. 671. A contract tor goods of the value of £10 or upwards must be in writing, and signed by the party charged, although the goods are to be made, &c. al a future time. 9 Geo. 4, e. 11, 8. 7. As to a parol agreemenl for additions, see Iloadley v. Maclain, 10 Bing. 482. [Where a contract stipulates that no extra work shall be paid for unless ordered in writing, the price of extra work done without such order cannot be recovered ; Russel v. Viscount 8a da Bandiera, i:> C. B. N. S. 149; and the mere want of writ- ing gives no claim in equity. Kirk v. Bromley Union, 2 Phil. 640. The want of the previous order cannot be supplied by an order given subsequently to performance. Lamprell v. Billericay Union, 3 Ex. 283. Where by the contract the architect was to certify the proper stun to be paid for work and extras, and his decision was to be final, it was held that his certificate that a sum was due precluded the defendant from raising the question whether there was a sufficient order in writing. Goodyear v. Mayor of Weymouth, 1 H. & R. 67; 35 L.J. C. P. 12. Form of count for extra work provided to be done under the contract according to a written order, Lamprell o. Billericay Union, 3 Ex. 283; count, averring waiver of the writing; Rigby v. Mayor of Bristol, 29 L. J. Ex. 359 ; count on a contract under seal to build a ship, with a stipulation that no alterations should be made unless ordered in writ- ing, averring a discharge of the stipulation, and claiming for alterations; Thames Iron Works & Shipbuilding Co. v\ Royal Mail Steam Packet Co. 13 C. B. N. S. 358; count under a contract for work to be paid for upon the architect's certificate, charging that the architect neglected to certify in collusion with and by procurement of the defendant. Batterbury v. Vyse, 2 H. & C. 42.] 1. Special Form for Work done under an Agreement. (o~) For that by an agreement made between the plaintiff and the defendant, the plaintiff agreed to make for the defendant [a three-horse power portable threshing machine, to be worked by a four-horse engine, to thresh from twenty to twenty-five quarters of wheat in a day ; to put up the new machine at Tan- holt, where an old one then stood, in a complete workmanlike manner, and to take down, at the plaintiff's own expense, the old one then standing at Tan- holt, the defendant to deliver the old machine at the plaintiff's yard at P., and also to fetch the new one to T., the old one to be taken by the plaintiff at £20, and the defendant to pay to the plaintiff £30 in exchange for the new one, and the new machine to be put down in a -complete working state in two months from the date of the agreement] ; and although the plaintiff has per- formed all conditions precedent on his part, and all events have happened, and all times have elapsed, to entitle the plaintiff to a performance of the defend- ant's contract, and to enable the plaintiff to maintain this action, of which the defendant had notice, and the defendant was requested by the plaintiff to pay him the sum of £30, according to the said agreement, yet the defendant has not paid the same. [Add account stated.^ (o) See form, &c. Varley v. Man ton, 9 for work done in getting up a company. Bing. 363. [Declaration against company Savin v. The Hoylake Ry. Co. L. R. 1 Ex. 9.] 266 DECLARATIONS ON CONTRACTS. WORK, ETC. 2. For discharging the Plaintiff from completing Work according to Agreement. (p~) For that, in consideration that the plaintiff agreed with the defendant to perform and complete certain work for the defendant, that is to say [state the material terms'], the defendant promised the plaintiff to permit him to perform and complete the said work on the terms aforesaid ; and the plaintiff did com- mence and in part perform the said work upon the terms aforesaid, and has always been ready and willing to perform and complete the whole of the said work upon the said terms, whereof the defendant always had notice ; yet the defendant would not permit the plaintiff to proceed with or complete the said work, and wrongfully and absolutely discharged and hindered and prevented the plaintiff from jjerforming and completing the residue of the said work, whereby the plaintiff has lost the profits which would otherwise have arisen and accrued to him from the completion of the said work, and the price and value of the work by him so done. \_Add account stated.] 3. Against a Workman, for employing Bad Materials and Workman- ship, (q) For that, in consideration that the plaintiff employed the defendant as a [wheelwright], to make a [cart] for the plaintiff at a certain price, the defend- ant promised the plaintiff that # the said [cart] should be made of good and proper materials, and in a workmanlike and proper manner; and although the defendant, under color of the said employment, made for and delivered to the plaintiff a [cart] as and for a [cart] made of good and proper materials, and in a workmanlike and proper manner, and the plaintiff paid the defendant for the same ; yet the said [cart] was not made of good or proper materials, or in a workmanlike or proper manner, whereby the same was of no use to the plaintiff, and he has incurred expenses in repairing the same, and hath been deprived of the use thereof for a long time. [Add count for money had and received, and on an account stated.] 4. From discharging Plaintiff from fitting up a Brewery and Offices, (r) Pontifex v. Wilkinson, 2 C. B. 346. [5. For not building and delivering a Ship by a certain Bay accord- ing to a Contract. That it was agreed by and between the plaintiff and the defendant, that the defendant should build for the plaintiff a new iron ship, in accordance with a specification then agreed on between them, and should deliver the said ship (p) See ante, Obs. ; [Paulding v. Mayor of (r) [Count for discharging the plaintiff Dover, 10 Ex. 753; Linegar v. Pearce, 9 from completing a contract to make and Ex. 417.] deliver goods. Cort v. Ambergate Ry. Co. {q) There is an implied warranty to the 17 Q. B. 127. On a contract for man uf act- effect stated in this form. See ante, " War- uring goods and delivering them at a certain ranty," Obs. [See form in Elsee v. Gatward, place, for not accepting them. Bull v. Robi- ■> T. R. 143 ; Times Fire Ass. Co. v. Hawke, son, 10 Ex. 342. Count for preventing the 1 F. & F. 406 ; Rigge v. Burbidge, 15 M. & plaintiff from completing a contract to build W. 598.] houses. Hitching v. Groom, 5 C. B. 515.] DECLARATIONS ON CONTRACTS. WORK, ETC. 2(57 Onished to the plaintiff on or before the day of , a. d. , and that the plaintiff should pay to the defendant for the said ship the sum of $ , by the following payments, that is to say [state te?ms of payment'] ; and all conditions were fulfilled, and all things happened, and all times elapsed, neces- sary to entitle the plaintiff to have the said agreement performed by the de- fendant on his part; yet the defendant, did not deliver the said ship finished as aforesaid to the plaintiff on or before the said day of , A. D. , whereby the plaintiff was deprived of the profits which he would otherwise ha ve gained from the use of the said ship, (s)] (s) [A like count. Fletcher v. Tayleur, 17 unable to deliver the machine according to C. B. 21. Count for a breach of a cove- a contract. Port man v. Middle ton, 4 C. nant to do certain work in a specified time, B. N. S. 322. On a bond conditioned for and in a workmanlike manner. Nortbamp- the performance of a contract to execute ton Gas light Co. v. Parnell, 15 C. B. 630. railway works according to a specification. For not. making part of a machine by a The South Eastern Ity. Co. v. Warton, 6 H. time agreed upon, whereby the plaintiff was & N. 520.J PLEAS IN CONTRACT. I. IN ABATEMENT, (a) Dbs. — A plea in abatement does not admit or deny the cause of action, but showa facts which defeat the present action; and in doing so it must point out the plaintiff's error and show him how it may be corrected. Pleas of abatement for misnomer are now abolished, 3 & 4 W. 4, c. 42, s. 11. See ante, 2 (e). The general rule is that where the contract is joint (not joint and several), all the parties must be joined. Eccleston v. Clipsham, 1 Wins. Saund. 153. But who are to be parties depends upon the construction of each particular contract. Where the legal interest and cause of action of the covenantees are several they should sue separately, though the covenant be joint in terms, but the several interest and the several ground of action must clearly appear. Sorsbie v. Park, 12 M. & W. 154; Foley v. Addenbrooke, 4 Q. B. 197; [Thompson r. Hakewill, 19 C. B. N. S. 713;] Haddon v. Ayers, 1 El. & El. 118; Keithley v. Watson, 3 Ex. 716; [1 Cbitty PL 10, and notes; 2 Chitty Contr. (11th Am. ed.) 1340, 1341; Hall v. Leigh, 8 Cranch, 51; Evans v. Sanders, 10 B. Mon. 291;] but where the interest of the covenantees is joint, although the covenant is in terms joint and several, the action must be brought in the names of all the covenantees so as to follow the nature of the contract. Pugh v. Stringfield, 3 C. B. N. S. 2; [1 Chitty Contr. (11th Am. ed.) 1340, 1343; 1 Chitty PI. 9, and notes; Thompson v. Hakewill, 19 C. B. N. S. 713; Capen v. Barrows, 1 Gray, 579; Haughton v. Bay ley, 9 Jred.337; Sweighart v. Berks, 8 Serg. & R. 308; Evans v. Sanders, 10 B. Mon. 291; Wright v. Post, 3 Conn. 142; Calvert v. Bradley, 16 How. (U. S.) 580.] Before the C. L. P. Act, 1860, a misjoinder of plaintiffs was fatal, but now by s. 19 of that act " The joinder of too many plaintiffs shall not be fatal, but every action may be brought in the name of all the persons in whom the legal right may be supposed to exist; and judgment may be given in favor of the plaintiffs by whom the action is brought, or of one or more of them, or, in case of any question of misjoinder being raised, then in favor of such one or more of them as shall be adjudged by the court to be entitled to recover: provided always, that the defendant, although unsuccessful, shall be entitled to his costs occasioned by joining any person or persons in wbose favor judg- ment is not given, unless otherwise ordered by the court or a judge." This section does not apply when it appears on the face of the proceedings that the action ought to have been brought by some of the plaintiffs only. Bel- lingham v. Clark, 1 B. & S. 332. The amendment may be made before the trial; C. L. P. Act, 1852, s. 34; and at the trial in the same way as an amendment of a variance under 3 & 4 W. 4, c. 42, s. 23 (C. L. P. Act, 1852, s. 35), which it appears should be made during the trial and before verdict. See Robson v. Doyle, 3 El. & Bl. 396. The non-joinder of a person who should be a plaintiff is, in actions on contracts where there is no amendment, a ground of nonsuit under the general issue; Chanter v. Leese, 4 M. & W. 295; 5 M. cS; W. 698; [1 Chitty PI. 14 468;] except in actions of detinue; Broadbent v. Ledward, 11 Ad. 6c El. 209; or in the case of executors; Cabell v. Vaugfon, 1 Wins. Saund. 291, K.; see Jones v. Smith, 1 Ex. 831; and in an action of contract by the assignees of a bankrupt the proper mode of taking advantage of the non-joinder of another assignee is by a traverse that the plaintiffs are assignees modo et forma and (a) See forms of commencement and conclusion, ante, 16, 17 et seq. PLEAS IN CONTRACT. ABATEMENT. 269 3bs. not by plea in abatement. Jones v. Smith, l Ex. 881. It' the objection ap- pears on the face of the pleadings, the defendanl may demnr or bring error, or move in arrest of judgment. (1 Chitty PI. 14,468.] But practically the defendant seldom resorts to cither of these remedies, as an amendmenl may now lie made in case- of non-joinder as well as in the ease of misjoinder, supra, and C. !>. 1*. An. 1852, bs. 84, • ;■">, unless the defendanl has given notice under S. 85. C. L. P. Act, L852 3. '■'<>■■ As to amendments of this kind, see R. G. Hil.T. 1858, 2, G. The misjoinder of a defendant in an action on contract is fatal unless the name is struck out before verdict. Etobson v. Doyle,:! El. &B1.396; Wickens v. Steel. 2 ('. B. N. S. 488; [1 Chitty PL 51.] It is a variance, and is, therefore, a defence under a plea in denial. Elliot v. Morgan, 7 C. & P. 834. But may now be amended in actions on contract by striking out the name of the misjoined defendant either before or at the trial, if it shall appear that injustice will not be done by such amendment; C. L. P. Act, 1852, s. 37; even where the misjoined defendant has Buffered judgment by default. Greaves r. Humphreys, 4 El. & Bl. 851. See Johnson v. Goslett, 18 C B. 728. If the judge at the trial refuse to Strike out the name of a misjoinded de- fendant, on the ground that he is not satisfied that the misjoinder was not made for the purpose of obtaining an undue advantage, the court has no power to review his decision. Hold. mi v. Ballantyne, 29 L. J. Q. B. 148. As to the costs to which a defendant who has been struck out is entitled, see Redway v. Webber, 32 L. J. C. P. 84. The non-joinder of a defendant in actions of contract can only be taken advan- tage of by plea in abatement. Price r. Shute, 1 S. L. C. 492; Eccleston v. Clipsham, 1 Wins. Saund. 154, n. 1; Cabell v. Vaughan, lb. 291, b, f, and g; [1 Chitty PI. 53. 468; Shelton v. Banks, 10 Gray, 401; Edler v. Thomp- son, 13 Gray, 91 ; Kendall v. Weaver, 1 Allen, 27 7'.] By 3 & 4 W. 4, c. 42, s. 8, " no plea in abatement for the non-joinder of any person as a co-de- fendant shall be allowed in any court of common law, unless it shall be stated in such plea that such person is resident within the jurisdiction of the court, and unless the place of residence of such person shall be stated with convenient certainty in an affidavit verifying such plea." By section 9, " to any plea in abatement in any court of law for the non-joinder of another per- son, the plaintiff may reply that such person has been discharged by bank- ruptcy and certificate, or under an act for the relict' of insolvent debtors." And section 10 enacts, " that in all eases in which, after such plea in abate- ment, the plaintiff shall, without having proceeded to trial upon an issue thereon, commence another action against the defendant or defendants in the action in which such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, if it shall ap- pear by the pleadings in such subsequent action, or on the evidence at the trial thereof, that all the original defendants arc liable, but that one or more of the persons named in such plea in abatement or any subsequent plea in abatement, are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judgment, or to a verdict and judgment, as the ease may be, against the other defendant or defendants who shall appear to be liable, and every defendant who is not so liable shall have judgment, and shall be entitled to his costs as against the plaintiff, who shall be allowed the same as costs in the cause against the defendant or defendants who shall have so pleaded in abatement the non- joinder of such person; provided that any such defendant who shall have so pleaded in abatement shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such plea in abatement." The plea must be accompanied by an affidavit, see post, 270, form 2, and notes; and the plea must be pleaded within four days, exclusive of the delivery of the declaration. Byland v. Wbrnland, 5 Dowl. 581. Upon this plea the writ of summons and the declaration may be amended without any order. C. L. P. Act, 1852, s. 38. See Rice v. Shute, 1 S. L. C. 493, and notes. 270 PLEAS IN CONTRACT. ABATEMENT. 1. Plea that a Person jointly liable with the Defendant is not sued with him. (6) Commencement as ante, 16.] That the said promise was (c) [or "promises were"] made by the defendant jointly with G. H., (d) who is still living, and who at the time of the commencement of this suit was and still is resident within the jurisdiction of this court, and not by the defendant alone. [Con- clude as ante, 16 and 17 ; add affidavit of truth, as infra.~\ [la. Form prescribed by Massachusetts Practice Act, as an Answer in Abatement. And the defendant comes and says that if he is indebted to the plaintiffs for the goods mentioned in their bill of particulars, he is indebted to them jointly with one G. H., who is still alive, and ought to be sued with him in the writ, and therefore he ought not to be held to answer to the plaintiffs' writ.] 2. Affidavit of Truth of Plea in Abatement, (e) In the . ( A. B plaintiff, Between-} and ( C. D. (/) . . . defendant. I, C. D., of Fleet Street, in the city of London, the defendant in this cause, (g) make oath and say, that the plea (h) hereunto annexed is true in (6) This plea may be pleaded to part of plaintiff's demand, and a plea in bar to the residue may be pleaded with it ; if that be the state of facts, and defendant do not so plead, the plaintiff will succeed. Hill v. White, 6 Bing. N. C. 26 ; and see 2 Wms. Saund. 220. A new assignment would, it seems, be improper. lb. The commencement must pray judgment of the writ and decla- ration, otherwise it is bad. See ante, 16, note (h). (c) If the action were for a debt, the form is "that the said alleged debt was [or debts were] contracted by the defendant jointly with one G. H., who is still living [frc. as above]." Or if the action is upon a bill or note, " that the said acceptance of the said bill, -.). "and that the said G. H. mentioned in the said plea resides at No. , in street, in the parish of , in the county of ■" (/')]• Sworn (/) [4-e.] C. D. 3. Replication that the Defendant is solely liable. (m~) Commencement, ante, 17.] That the said promises [as in the plea~\ were not made by the defendant jointly with the said G. II. as alleged. [ Con- clude as ante, 17.] 4. Replication that the Party not sued is resident out of the Jurisdic- tion of the Court. Commencement, ante, 16.] That the said G. H. was not, at the time of the commencement of this suit, resident within the jurisdiction of this court, as alleged. [Conclude as ante, 17.] 5. Replication to a Plea of Non-joinder, that the other Contractor is a Certificated Bankrupt, (ri) Commencement, ante, 16.] That after the accruing of the causes of action in the declaration mentioned, and before the commencement of this suit, G. H. became a bankrupt within the true intent and meaning of the statutes in force concerning bankrupts, and was discharged from the said causes of action by bankruptcy and certificate. [Conclude as ante, 17.] 6. Plea that a Bill of Exchange was accepted by the Defendant jointly with Another. Bleakley v. Jay, 13 M. & W. 464. 7. Plea by Assignee of a Lease, that the Lease vested in Another jointly with the Defendant. Heap v. Livingstone, 11 M. & W. 896; 1 D. & L. 334. "plea," lias been held bail. Garratt v. haps irregular, if the affidavit be sworn be- Hooper, 1 Dowl. 28. fore defendant's attorney. Horsefall v. Mat- («') This form should be adhered to ; affi- thewman, 3 M. & S. 154. davit that "the plea is time," insufficient. (m) As it appears to be doubtful whether Onslow i'. Booth, Stra. 705. the C. L. P. Act, 1852, applies to a plea in (/>) The residence, stated must be the resi- abatement, it would not be sufficient merely deuce at the time of plea pleaded. White to take issue upon the pleas (see the stat- v. Gascoyne, 3 Ex. 36. utc). It is better to enter a cassetur breve, if (/) If the affidavit is sworn before the it be probable the plea can be sustained; declaration is delivered, the plaintiff may and no costs are payable on such cassetur. treat the plea as a nullity. Bower v. Kemp, And see ante, 17, note (lc). 1 Dowl. 281 ; 1 Cr. &"J. 287 ; Johnson v. («) By 3 & 4 W. 4, c. 42, s. 9, it is en- Popplewell, 2 Cr. & J. 545. But an affidavit acted " that to any plea in abatement in any sworn in Liverpool on the day the declara- court of law of the non-joinder of another tiou was delivered in London, was held not person, the plaintiff may reply that such to be a nullity. Lang v. Comber, 4 East, person has been discharged by bankruptcy 340. See Baskett v. Barnard, 4 M. & S. and certificate, or under an act for the relief 332. The plea is not a nullity, though per- of insolvent debtors." 272 PLEAS IN CONTRACT. ABATEMENT. 8. Plea of the Non-joinder of a Co-executor as a Defendant, (o) Commend ment, mite, 16.] That the said J. L. made his last will in writing, and thereby appointed the defendant and one T. L. executors thereof, and after his death, and before the commencement of this suit, the said T. L. and the defendant duly proved the said will, and took upon themselves the execu- tion thereof, and administered divers goods and chattels which were of the said J. L. at the time of bis death, (p) and T. L. is still living and resident within the jurisdiction of this court. [Conclude as ante, 16 and 17, and affi- davit of the truth of the plea, as ante, Form 2.] 9. Plea of the Coverture of Plaintiff. Qf) Commencement, ante, 16.] That the plaintiff, at the commencement of this suit, was and yet is married to one G. H., who is still living [conclude as ante, 16 and 17; add affidavit of truth, Form 2]. [9a. Form of Answer in Abatement under Massachusetts Practice Act. And the defendant comes and says that when the plaintiff's writ was sued out, the plaintiff was a married woman, and that E. F. her husband was then alive, and therefore he ought not to be held to answer to the plaintiff's writ.] 10. Plea of the Coverture of Defendant, (r) Commencement, ante, 16, in person, and not by attorney, (s)] That at the-' commencement of this suit she was and still is married to one E. F., who is still living [conclude as ante, 16 and 17 ; add affidavit of truth {not of resi- dence), (r) as ante, Form 2]. (o) See Cabell v. Vaugham, 1 Wins. Wakeman, 12 M. & W. 97 ; Guyard v. Sut- Saund. 291, note (h); see, also, 2 Williams ton, 3 C. B. 153. A plea of coverture to an on Executors. action for the escape of a debtor is a plea in (n) This is the proper form. See a form, abatement. Morgan ?;. Cubitt, 3 Ex. 612. Kvalls v. Bramall, 1 Ex. 734. See post, "Coverture." The wife of an alien "(q) The plaintiff's coverture after the con- enemy cannot maintain an action in her own tract was mad.', and at any time" before final name on a contract made before or during judgment, can only be pleaded in abatement; coverture. De Wahl v. Braume, 1 H. & N. Milnes v. Milnes, 3 T. R. 627; Dalton v. 178; 25 L. J. Ex. 343. Marriage pendente Midland (..unties. Rv. Co. 13 C. B. 474; lite does not abate the suit. C. L. P. Act, Morgan v. Cnbitt, 3" Ex. 612; Walker v. 1852, s. 141; see Obs. ante, 147; see the v. Golling, 11 M. & W. 78 ; [Hayden v. At- Divorce Acts, 20 & 21 Vict. c. 85, and Obs. tleborough, 7 Gray, 338; 1 Chittv Contr. ante, 147. As to outlawry of plaintiff, see (11th Am. ed.) 226; Parker v. Way, 15 N. Somers v. Holt, 8 Dowl. 506. II. 51 ; Lyman v. Ellery, 7 Vt. 508;] her (r) The defendant's coverture at the time coverture at the time of the contract may be of the contract may he pleaded in bar. See pleaded in bar. Milnes v. Milnes, supra : ante, form, post, " Coverture; " marriage after the Obs. 148; [lChittj PI. 464.] Ifahusband contract must be pleaded in abatement; sue alone when his wife ought to be joined, Milnes v. Milnes, 3 T. R. 631 ; an affidavit the objection should be taken by plea in of the residence of the defendant is not nec- abatement. Wallis u. Harrison, 5 M. & W. essary in this plea, as it is not within 3 &4 142; Howard v. Oakes, 3 Ex. 136; [1 W. 4, c. 42, s. 8 ; Jones v. Smith, 3 M. & Chitty PL 37.] If a wife sue alone on a W. 526 ; but there must be an affidavit of deed made to her when solo, the plea must truth, or the plaintiff may sign judgment. be in abatement; though this may be Lovell v. Winstanley, 9 M. & W. 209. See pleaded in bar, if the plea go on to show notes to last form. that the husband has by some operative act (s) As to suing in person and not by at- vested the interest in himself. Bendix v. torney, see ante, 16, note (<;)■ PLEAS IN CONTRACT. ABATEMENT. 273 [10a. Form of Answer in Abatement ; Coverture of Defendant. And the defendant comes and says that when the plaintiff's writ was sued out, she was and still is a married woman, and thai J. II. her husband was then alive, and therefore she ought not to be held to answer to the plaintiff's writ.] 11. Replication that Defendant is not married. (£) Commencement, ante, 17.] That the defendant is not married to G. II. in the plea mentioned, as alleged [conclude as ante, 17]. 12. Plea, another Action pending for the same Demand, (u) Commencement, ante, 1 6.] That before the commencement of this suit, the plaintiff issued a writ of summons out of the court of queen's bench against the defendant in an action for the same identical causes of actkm in the declara- tion in this suit mentioned, as by the record (./•) and proceedings thereof remaining in the said court appears, and the parties in this and the said former suit are the same parties, and the said former suit is still depending in the said court [conclude as ante, 16 and 17, and add affidavit of truth, as ante, Form 2]. 13. Plea by an Attorney : Privilege of being sued, in another Court, (j/) In the . On [£-ir ; jost, " Judgment recovered ; " and semble, if the plaintiff has settled with any other party jointly liable with the defendant, that would be a good plea in bar also. King v. Hoare, 13 M. & W. 494; [1 Chitty IT. 48, note (m), 49, note («).] The pendency of an action against a person jointly liable is not a good plea in abatement. Henry v. Goldnev, 15 M. & W. 494. See Newton v. Blunt, 3 C. B. 675. The bankruptcy of the plaintiff will not abate the action. C. L. P. Act, 1852, s. 142. See Drake v. Beckham, 11 M. & W. 315; Rogers v. Spence, 13 M. & W. 571. It' defendant has non prossed the plaintiff in the first action, he cannot plead it in abate- ment in the second. Pepper v. Whalley, 3 Dowl. 579. In answer to the above plea the plaintiff may deny the former suit. Colson v. Selby, l Esp. It. 452. (x) This averment, if traversed, is satis- fied by producing a record of a writ only ; but if it has not been served, the court will not allow it to be made available to support this plea. Kirby v. Siggers, 2 Dowl. 659, 813. (y) Form, &c. Lewis v. Kerr, 2 51. & W. 226. See ante, 9, as to actions by an attor- ney. This is still a good plea notwithstand- ing 1 Vict. c. 56, s. 4, provides that an attor- (2) This may be pleaded by attorney ; not to be pleaded in person. Hunter v. Neck, 3 M. & G. 181 ; and ought Wortham, 2 Dowl. N. S. 657. TOL. II. 18 Groom v. 27-4 PLEAS m CONTRACT. PLEAS IN BAR. at Westminster, and during all that time has prosecuted and defended suits and pleas in the said court for subjects of our lady the queen as their attor- ney, and the defendant and all other attorneys of the said court ought, by an ancient custom of such court, from time immemorial used and approved of, to be free from being compelled, and have not at any time been used to be com- pelled, to answer any plea in any action personal, pleas of freehold, felony, and appeals only excepted, before any justice or minister of our lady the queen, or any judge of any court, except before the justices of the said court of Q. B. [or " C. P." or " exchequer of pleas"] ; (a) and this the defendant is ready to verify ; (a 1 ) wherefore he prays judgment if the court here will or ought to take cognizance (0) of the said plea [add affidavit of truth of plea, (c) as ante, Form 2.] 14. Replication, that the Defendant is an Attorney of the Court in 9 which he is sued. (c2) South Staffordshire Ry. Co. v. Smith, 5 Ex. 473 ; 19 L. J. Ex. 356. 15. Plea, that Plaintiff is an Alien Enemy. See post, "Alien." II. PLEAS IN BAR. Observations on the Plea of Nunquam Indebitatus. The abolition of special demurrers does not extend the effect of the general issue so as to make that admissible now which would not have been so before the passing of the C. L. P. Act, but only prevents a pleading which would otherwise have been bad, for instance, as amounting to the general issue, from being bad on that ground ; it is, therefore, still necessary to consider the effect of the general issue. Formerly it was usual, in declaring on the common counts, to allege that the defendant promised to pay ; and the promise alleged or the matter of fact from which the alleged promise might be implied by law was put in issue by the plea of non assumpsit. But this is no longer the case, for now " That he ney admitted in one court may practice in & 13 Vict. c. 101, s. 18. He has no privilege tin- others. If the attorney has waived his as to venue. Yeardley v. Roe, 3 T. R. 573. privilege, that should be replied. Prior v. (a) There need not be an allegation, that Smith, 6 Dowl. 299. An attorney sued the defendant is not an attorney of the court jointly with an unprivileged person loses his in which the action is pending — that he is privilege of being sued in his own court; mav be replied. Percival v. Cook, 5 M. & W. Rastrick v. Beckwith, 7 M. & G. 905 ; 2 D. 293; Walford v. Fleetwood, 14 M. & W. 449; & L. 624 ; Robarts v. Mason, 1 Taunt. South Staffordshire Ry. Co. v. Smith, 5 Ex. 254 ; see Ramsbottom v. Harcourt, 4 M. 473. & S. 585 ; and an attorney of two courts (a 1 ) [See ante, 273, note (z).] may be sued in either at the option of the (b) See Chatland v. Thornley, 12 Fast, plaintiff. Walford V. Fleetwood, 14 M. & 544. W. 449; 14 L. J. Ex. 271. But he has no (c) A plea of privilege cannot be distin- privilege as against the crown. Kirkham v. guished from a plea in abatement, and must Whaley, 1 Ld. Ray m. 27. So also an attor- therefore be accompanied by an affidavit of ney cannot have his privilege against a fur- verification. Davidson v. Wakins, 3 Dowl. eign attachment in London. Ridge v. Hard- 129 ; Davidson v. Chilman, 1 Bing. N. C. 297. castle, 8 T. R. 417. An attorney is not (d) See, also, as to the conclusion of this exempt from being sued under the county replication, Groborn v. Ingleby, 2 Ex. 442 ; eourts act6, by reason of his privilege. 12 and C. L. P. Act, 1852, s. 67. PLEAS IN CONTRACT. PLEAS IN BAR. 275 never was indebted as alleged " is given in sched. B to the C. L. P. Act, 1852, as the plea applicable to the common counts for money payable, such aa those numbered from 1 to 14 in that schedule. By Reg. Gen. T. T. 1853, r. 11, the plea of nil debit is not allowed in any action. By Reg. Gen. T. T. 1853, r. 6, it is provided that "To causes of action to which the plea of 'never was indebted' is applicable as provided in schedule B of the C. L. P. Act, 1852, and to those of a like nature, the plea of non assumpsit shall be inadmissible, and the plea of ' never was indebted' will operate as a denial of those matters of fact from which the liability of the defendant arises." "That he did not promise as alleged" is the plea given as applicable to other declarations on simple contract, such as for "breach of promise of mar- riage," " warranty of a horse," or " for not loading pursuant to a charter- party ; " and in these cases "did not warrant," "did not agr^e," or any other appropriate denial would be unobjectionable. C. L. P. Act, 1852, schedule B, 37. A defendant may either traverse generally such of the facts contained in the declaration as might have been traversed by one plea, or may select and traverse separately any material allegation in the declaration, although it might have been included in a general traverse. C. L. P. Act, 1852, s. 76. Reg. Gen. T. T. 1853, r. 6, provides that "In all actions on simple contract, except as hereinafter excepted, the plea of non assumpsit or a plea traversing the contract or agreement alleged in the declaration shall operate only as a denial in fact of the express promise, contract, or agreement alleged, or of the matters of fact from which the contract, promise, or agreement alleged may be implied by law. Exempli gratia : In an action on a warranty, such pleas will operate as a denial of the fact of the sale and warranty having been given, but not of the breach, and, in an action on a policy of insurance, of the sub- scription to the alleged policy by the defendant, but not of the interest, of the commencement of the risk, of the loss, or of the alleged compliance with war- ranties. Thus, in an action on a warranty of a horse, this plea will not deny that it was unsound (Smith v. Parsons, 8 C. & P. 199) ; nor enable the defendant to set up as a defence that there was to be reference by consent to a veterinary surgeon. Watson v. Denton, 7 C. & P. 85 ; and see Ellis v. Chinnock, 7 C. & P. 169. In an action on a policy of assurance, the defendant may under this plea deny that it was effected on plaintiff's behalf, and the payment of the pre- mium by him. Sutherland v. Pratt, 11 M. & W. 296; Redmond v. Smith, 7 M. & G. 457; Hallett v. Dowdall, 18 Q. B. 2; see post, "Insurance." " In actions against carriers and other bailees, for not delivering or not keeping goods safe, or not returning them on request, and in actions against Igents for not accounting, such pleas will operate as a denial of any express or implied contract to the effect alleged in the declaration, but not of the preach." Reg. Gen. T. T. 1853, r. 6. Thus it would deny that defendant received the goods in the character of a common carrier, and for the purpose of being carried, &c. (Webb v. Page. 276 PLEAS IX CONTRACT. PLEAS IN BAR. 5 If. & G. 199) ; also the property of the plaintiff in the goods, and whether he as consignor or consignee be the person to sue. Gilbart v. Dale, 5 Ad. & E. 545. It would also deny any qualification of the common law contract, such as that the plaintiff agreed to watch the goods. Brind v. Dale. 2 M. & W. 775. •• In every species of actions on contracts, all matters in confession and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law, on the around of fraud or otherwise, shall be specially pleaded. R. G. T. T. 1853, r. -. - In all actions upon bills of exchange and promissory notes, the plea of non assumpsit and never indebted is inadmissible." R. 7 ; see post, Pleas, " Bills of Exchange." The objects of thus restricting the operation of the general issue are three- fold : 1 ~t, by separating questions of law from questions of fact, to prevent as much as possible the former being submitted to a jury (per Lord Abinger C. B. in Gutsole r. Mathews, 1 M. & W. 502) ; 2d]y, to prevent parties being taken by surprise at the trial, an object which is gained by compelling defences which a plaintiff could not be reasonably supposed to anticipate, to be placed on the record in the form of special pleas ; (e) and 3dly, to diminish the expense of trials, by reducing disputes between litigants to single points, and thus, by throwing off, as it were, the extraneous facts, relieving parties from the necessity of bringing witnesses to prove what was never intended to be disputed. The first object is much advanced by the rule requiring that all matters must be pleaded "which show the transaction to be void or voidable in point of law, on the ground of fraud or otherwise, ex. gr. illegality of consideration either by common law or statute." See post, tit. "Illegal Consideration." What amounts to a defence of illegal consideration is a question much more fit to be decided by the court on demurrer than to be submitted to a jury. See instance, Hibblewhite v. M'Morine, 5 M. & W. 462. The second and third' objects are gained by requiring matters in confession and avoidance, as well as those in discharge, to be pleaded; the- examples under this head, given in the rules themselves, are : •■ Infancy, coverture, release, payment, performance, illegality of considera- tion either by statute or common law, drawing, indorsing, accepting, &c. bills or notes by way of accommodation, set-off, mutual credit, unseaworthiness, misrepivxntation, concealment, deviation, and various other defences." R. 8. See those various titles, post. As the operation of non assumpsit is less extensive when applied to a special count than -never was indebted" is to an indebitatus count, it will be proper to advert concisely to the difference between those counts. The points which have been decided as to non assumpsit, when pleaded to the common counts, will in general be applicable to the substituted plea of " never was indebted." A special count in contract usually contains : First. An inducement or statement of prefatory matter, tending to explain, (e) See per Lord Abinger, in Isaac v. Farrer, 1 M. & W. 70 ; and per Park J. in Barnett r. Glossop, 1 Bing. N. C. 636. PLEAS IN CONTRACT. PLEAS IN BAR. 277 and sometimes forming the foundation for, the contract; as, in an action on a guaranty for the debt of another, that the latter was indebted, &c. See ante, 136 et seq. Secondly. The statement of the contract, that is, of the consideration and the defendant's promise thereon (as that, in consideration plaintiff would for- bear to sue E. F., defendant promised to be answerable, &c). Thirdly. The allegation of the plaintiff's performance of conditions prece- dent, or of his readiness, &c. to perform his part of the bargain in case of a concurrent consideration, &c. Ante, 39, note (u). Fourthly. The statement of the defendant's breach of contract. Fifthly. The consequent damage, if special, to the plaintiff. The common indebitatus count only contains three allegations: First. That plaintiff sues for money payable, showing a past or executed consideration. Secondly. A statement of what it is payable for. Thirdly. The amount claimed. It will be convenient to consider the effect of pleading the general issue to these counts separately. And first as to the special count.'] — 1. The inducement, when existing antecedently to and independently of an express contract, is not put in issue by non assumpsit. Thus, in Shilcock v. Passman, 7 C. & P. 289, where the declaration stated that the plaintiff was a prisoner in execution for less than £20, and, in con- sideration that plaintiff would employ defendant (an attorney) to obtain his discharge under the statute, the defendant promised to use due diligence to do so, Alderson B. held that the prefatory allegations were not in issue. In Da Pinna v. Polhill, 8 C. & P. 78, where the declaration stated that the plaintiff had composed an opera, and that, in consideration that the plaintiff would sell his copyright in it, the defendant undertook to buy it; breach, that he refused so to do, and plea of the general issue ; Tindal C. J. held, that under this plea the defendant could not show that the plaintiff did not sell by deed (if that were necessary), or that he did not compose the opera, or that he had not the right of selling it. Bennion v. Davison, 3 M. & W. 179; Bell v. Welsh, 9 C. B. 154. In the case of a guaranty of an existing debt in consideration of forbear- ance, where there is an inducement that the third party was indebted, this latter fact would be admitted under non assumpsit ; see plea denying it, post, " Guaranty." 2. The contract, that is, the consideration as alleged in the declaration, and the promise made in consequence, are both denied by non assumpsit or a plea traversing the contract or agreement alleged in the declaration. It may therefore be shown under that plea, to an action on a guaranty, that the writing produced in evidence to prove it does not support the same consid- eration as that set out in the declaration. Raikes v. Todd, 8 Ad. & E. 854. 'If you disprove the consideration laid, you of course disprove the contract," oer Lord Denman, lb. ; and see Beach v. White, 12 Ad. & E. 670. In Lyall v. Higgins, 4 Q. B. 528, where the declaration stated that the plaintiff had engaged C. as collecting clerk, and that in consideration that plaintiff would 278 PLEAS IX CONTRACT. PLEAS IN BAR. employ him as such, defendant guarantied his fidelity, a plea was held bad which stated that, before the defendant's agreement with the plaintiff, the plaintiff was bound to employ C. under another agreement to that effect with him, which latter agreement was subsisting at the time of defendant's promise, and therefore that there was no consideration for the defendant's guaranty. If a consideration which existed in all its integrity, as stated in the declara- tion at the time of the promise, afterwards fails, either wholly or in part (where the promise is entire), it would seem to be proper to plead such a defence in confession and avoidance. See Chanter v. Leese, 4 M. & W. 295 ; 5 M. & W. 698 ; Head v. Baldrey, 6 Ad. & E. 459 ; Franklin v. Miller, 4 Ad. & E. 599 ; Skeate v. Beale, 11 Ad. & E. 983. So that the plaintiff has not performed the alleged consideration (Gibson v. Harris, 8 C. & P. 378), unless where there is an averment in the declaration that the plaintiff performed the con- sideration, in which case a traverse of that averment would let in evidence that he only partially performed it. Ante, 119, note (/). Matter of cross- action must, however, be distinguished from failure of consideration. See Fran- cis v. Baker, 10 Ad. & E. 642. Under this plea the defendant may show that the policy declared on was not caused to be made by or on behalf of the plaintiff (Sutherland v. Pratt, 11 M. & W. 296 ; Redmond v. Smith, 8 Scott N. P. 250) ; or that the plaintiff did not pay the premium nor promise the defendant to observe the terms and conditions of the policy. But a defence that the plaintiff has no interest must be specially pleaded. Miles v. Campbell, 2 Y. & C. 389. Misdescription of contract.'] — The contract as stated is denied by non as- sumpsit or plea traversing the contract or agreement, and therefore any defence grounded on the fact that the real contract between the parties varies from that set out may be given in evidence under such plea. Thus, if the plaintiff misdescribes the terms, or mistakes the meaning of the contract on which he sues, non assumpsit or a plea traversing the contract is the proper plea to let in the objection ; as where the declaration complained of the breach of an absolute agreement on the part of the defendant to buy a house and pay for the fixtures, and the contract really was that the plaintiff was to execute an assignment of the lease, and put the defendant in possession on his paying for the fixtures, which the plaintiff was not ready or willing to do, the proper plea would be the general issue. Nash v. Breeze, 11 M. & W. 352. The case of Kemble v. Mills, 1 M. & G. 757, further illustrates this principle ; iu that case a condition, which, according to the true construction of the agree- ment between the parties, was a condition precedent, was described as a con- current condition, and the court held that this might be objected under non assumpsit. So, upon an issue denying the agreement, the defence is admis- sible, that a document was signed without any intention of making a present contract, but that it was to be conditional only upon the happening of an event which has not occurred. Pym v. Campbell, 6 El. & Bl. 370 ; Furness v. Meek, 27 L. J. Ex. 34. See Evans v. Bremridge, 25 L. J. Ch. 334. Term of contract omitted.'] — So, where the whole of the contract is not stated, that may be objected on non assumpsit or a plea traversing the con- tract. Smith v. Dixon, 7 Ad. & E. 8. Thus, in an action for not paying for goods by giving bills with security, the defendant under this issue may show PLEAS IN CONTRACT. PLEAS IN BAR. 279 a custom of trade that such security was only given when it was demanded before the goods were delivered. VTbittaker v. Mason, 2 Bing. \. C. 359. And so in an action against a carrier for losing goods, defendant may Bhow that when lie received them it was agreed that the plaintiff should accompany and watch the goods. Blind v. Dale, 2 M. & W. 775; and see per Littledale J. Williams v. Byrne, 7 Ad. & E. 183. In an action on a policy of insurance, the defendant may show under the general issue that hy a contemporaneous memorandum it was agreed that the policy should include only capture in case of war, and that the capture complained of was not of that description. Heath v. Durant, 12 Al. & W. 438 : Mounsey v. Perrott, 2 Ex. 522. Debt payable on request.'] — The defence that the goods, &c. were sold on a credit which had not expired when the action was commenced, is properly admissible under non assumpsit or a traverse of the contract. See Hayselden v. Staff", 5 Ad. & E. 159 ; Broomfield v. Smith, 1 M. & W. 542. Inconsistent contract.] — Defendant can show that a material term has been omitted (Stephen on Plead. 152), or a contract inconsistent with the contract declared on. Thus, in Morgan v. Pebrer, 3 Bing. N. C. 457, where the defend- ant pleaded to a count for money paid, that it was paid by the plaintiff (a stock- broker) for the defendant on stock-jobbing differences ; and that the original agreement between the parties was, that the defendant should deposit bonds with the plaintiff" to cover such differences, which the plaintiff might sell to repay himself after notice to the defendant, with an averment that the plain- tiff had done so without such notice, Tindal C. J. observed, " What is the plea in effect but saying, you ought not to have declared in an indebitatus contract, because you have entered into another contract inconsistent with it? In other words, as to the contract declared on, defendant says non assumpsit." So, where, in assumpsit by a purchaser against the vendor for not delivering a proper abstract of title, the declaration alleged that the sale was subject to a condition that the vendor should deliver an abstract showing a good title, and assigned for a breach the non-delivery of such abstract, the defendant was held entitled to show under this plea that it was agreed as part of the contract that the defendant should deliver an abstract commencing with a particular deed oith/. The plea demurred to particularly stated that the terms of the agree- ment there set up were part of the contract declared on. Sharland v. Leifchild, 4 C. B. 529; Heath v. Durant, 12 M. & W. 438; see Weedon v. Wood bridge, 13 Q. B. 462. Where the defence set up is quite consistent with the contract alleged in the declaration, it should be pleaded. Where it is a denial of the contract declared on by the statement of a contract inconsistent with it, it is admissible under these general pleas. lb. ; see, also, Parker v. Palmer, 4 B. & Aid. 387 ; Sieveking v. Dutton, 3 C. B. 331. 3. Condition precedent, non-performance of.] — This would seem not to be denied under non assumpsit, whenever the consideration for the promise is executory. In Gibson r. Harris, 8 C. & P. 378, where the plaintiff declared that, in consideration that the plaintiff would assign certain shares, so that the agreement might be produced in chancery, and would accept £70, plaintiff promised, &c. and averments accordingly, Lord Abinger C. B. held that under non assumpsit the defendant could not insist that any part of the con- sideration was unperformed. If the defendant relies on the non-performance 280 PLEAS IN CONTRACT. PLEAS IN BAR. of a condition precedent not set out in the declaration, he may set it out in his plea, and deny that it has been performed. See post, Pleas, " Condition Prece- dent;" see Coulson v. Attwood, 26 L. J. Ex. 244. But where the consideration is executed, as is always the case in indebita- tus counts, the plea of non assumpsit denies the performance of any condition precedent that it may be necessary for the plaintiff to prove he has per- formed, before he can sustain the action. Alexander v. Gardner, 1 Bing. N. C. 661 ; Groundsell v. Lamb, 1 M. & W. 352 ; post, 281. See ante, " Misdescrip- tion of Contract," and "Inconsistent Contract." But a stipulation in the nature of a defeasance of the liability to damages, unless a required notice was given (per cm: Weedon v. Woodbridge, ubi sup.), was held admissible under non assumpsit. In Walmsley v. Matthews, 3 M. & G. 133, the plaintiff declared on a con- tract, that in consideration that he had entered his horse for a race, and paid a certain subscription towards the stakes, the defendant promised to pay over the stakes to him if a certain horse won, and it was held that under non assumpsit the defendant could not show that there was a dispute as to whether the horse was qualified, and that one of the conditions was, that disputes should be referred to a committee, who had not yet made any decision. Facts whence promise implied.'] — Sometimes, even in a special count, the plaintiff is unable to prove any express promise on the part of the defendant like that which he has set out in his declaration, but he can prove facts from which the law will imply such a promise ; for instance, if he proves that the defendant is a carrier, and that he delivered goods to be conveyed by him, the law will imply a promise on the part of the defendant to deliver them safely. Ante, 94, Obs. In such cases the matters of fact from which the promise is to be implied are, by the express terms of the R. G. T. T. 1853, denied by non assumpsit ; and in the above instance one of such matters of fact is the delivery of goods of the plaintiff, and therefore his property in the goods was held in the above instance to be denied by non assumpsit. Gilbart v. Dale, 5 Ad. & E. 545, per Coleridge J. So in AVallis v. Broadbent, 4 Ad. & E. 877, where a landlord sued a tenant on an implied promise, arising from his holding over a farm after a lease had expired, to hold on the terms of the lease (see ante, 189), it was held that the lease being one of the matters of fact from which the promise was to be implied, was denied by non assumpsit, and that it could not be produced to prove such promise unless properly stamped. In an action against an attorney for negligence, the fact of the defendant being an attorney is one of the matters of fact from which his promise to transact the business skilfully would be implied by law ; it is therefore denied by non assumpsit. Aldis v. Gardner, 1 Car. & K. 564. Upon the same prin- ciple a defence that the promise declared on was only to be deduced from a judge's order, and that that order was afterwards set aside, being in effect merely a circuitous mode of asserting that no promise was to be deduced from the order, may be given in evidence under this plea. "Wade v. Simeon, 2 C. B. 548. Statutory disability. — Statute of Frauds. — Stamp.] — Sometimes, by the operation of the express provisions of a statute, the plaintiff is prevented from proving the matters of fact from which the promise is to be implied, though PLEAS IN CONTRACT. PLEAS IN BAR. 281 they may exist in reality ; thus, there may have been a contract for the sale of land, or of goods of a greater value than £10, and nothing given to bind the bargain, or a contract which was not to be performed within a year; in these cases, as the plaintiff has not evidence sufficient to show that there was such a contract, unless he produces a writing satisfying the statute of frauds, he is prevented from getting through his case, and the p*lea, therefore, of non assumpsit, or any other denying the contract, will be sufficient to let in this defence. Buttermere v. Hayes, 5 M. & W. 460; Eastwood v. Kenyon, 11 Ad. & E. 441 ; Tricker v. Thomlinson, 1 M. & G. 772 ; Reade v. Lamb, 6 Ex. 130; [Gibson v. Holland, L. R. 1 C. P. 1 ; Noble v. Ward, L. R. 1 Ex. 117 ; L. R. 2 Ex. 135 ; Vanderberg v. Spooner, L. R. 1 Ex. 316; Wilkinson v. Evans, L. R. 1 C. P. 407 ; Newell v. Radford, L. R. 3 C P. 52.] See Leroux v. Brown, [12 C. B. 801. But see 1 Chitty PI. 506, note («).] Upon this principle, any objection that the writing necessary to evidence the contract declared on is not stamped, or is insufficiently stamped (Mason v. Bradley, 11 M. & W. 590), that a transfer of a ship was not in accordance with the merchant shipping acts (see Benyon v. Creswell, 12 Q. B. 899), may be taken under the general issue or other plea denying the contract, for in such cases the plaintiff's case is stopped in limine, and he is unable to prove the contract at all. Calvert v. Baker, 4 M. & W. 417 ; Morgan v. Ruddock, 4 Dowl. 311. See Young v. Geiger, 6 C. B. 541. Breach. — Damages.~\ — The breach of the contract is not denied under non assumpsit. Pleading Rules, T. T. 1853, r. 6. In Smith v. Parsons, 8 C. & P. 199, which was an action for the breach of a warranty of ownership of a horse, Tindal C. J. held that under this plea the defendant could not show that the horse was sound. In such case there should be a denial of the breach in the terms in which it is alleged, and the plea should not be applied to any special damage laid as resulting from such breach. Porter v. Izott, 1 M. & W. 381 ; Warre v. Calvert, 7 Ad. & E. 143; see distinction between denial of a con- tract and excuse for breach, Lara v. General Apothecaries' Co. 26 L. J. Ex. 225. A plea to damages only is bad. Reindel v. Schell, 4 C. B. N. S. 97. Common counts^] — The plea of never was indebted operates as a denial of those matters of fact from which the liability of the defendant arises (r. 6) ; for example, in actions for goods bargained and sold, or sold and delivered, the plea will operate as a denial of the bargain and sale, or sale and delivery in point of fact ; in the like action for money had and received, it will operate as a denial both of the receipt of money and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff. Goods sold."] — Thus, to a count for goods sold, it denies that there was such a sale and delivery as would create a legal debt, as that the goods were sold on a credit which had not expired at the commencement of the suit (Broomfield v. Smith, 1 M. & W. 574) ; because that negatives the existence of a present debt, which is the meaning of the words " money payable " at the commencement of the common count (Place v. Potts, 8 Ex. 705) ; that defendant, an undisclosed foreign principal, by the course of dealing, never incurred any liability (Smyth v. Anderson, 7 C. B. 21, 42) ; that the goods do not fulfil a condition under which they were bought, such as good quality (Dicken v. Neale, 1 M. & W. 556) ; that they were useless (Dawson v. Collis, 282 PLEAS IN CONTRACT. PLEAS IN BAR. 10 C. B. 523 ; that a machine was manufactured by the plaintiff for the defendant under a condition that if it did not work nothing should be paid for it, and that it could not be made to work, and was useless to the defend- ant (Groundsell v. Lamb, 1 M. & W. 352) ; that it was a conditional sale (Lamond v. Davall, 9 Q. B. 1030) ; non-delivery of all the goods contracted for. Skeate v. Beale, 11 Ad. & E. 985. If the goods have been kept and appropriated by the defendant, a new implied contract to pay arises, on which the plaint ill' may recover, as on a quantum meruit. Cousins v. Paddou, 2 Cr., M. & R. 547 ; Fitt v. Cassanet, 5 Scott N. R. 902. The adultery of the wife, in an action against a husband for goods supplied to her, may be shown under this plea as negativing his implied authority to her to contract in his name. Symes v. Goodfellow, 2 Bing. N. C. 532. But where there has been a sale in point of fact, the defendant cannot show that the plaintiff had no title to the goods at the time of the sale. Walker v. Mellor, 11 Q. B. 478. Work and Materials.'] — The principles regulating the effect of the general issue to an indebitatus count for goods sold {ante, 281) equally apply to an indebitatus count for the price or value of work and materials. It may be shown under the general issue, that the work was done unskilfully (Hill v. Allen, 2 M. & W. 283 ; Bracey v. Carter, 12 Ad. & E. 373 ; Mondel v. Steel, 8 M. & W. 858 ; Cox v. Leech, 1 C. B. N. S. 617 ; Long v. Orsi, 18 C. B. G10) ; but the plaintiff could still recover under a new implied contract for the value of any work, &c. that the defendant adopted (see ante, 281) ; or that the remuneration was not to be in money (Collingbourne v. Mantell, 5 M. & W. 289) ; that the work was not to be paid for until the certificate of a surveyor had been obtained, which had not been done (Milner v. Field, 5 Ex. 829) ; or that no remuneration should be claimed except for disbursements or money out of pocket (see Jones v. Reed, 5 Dowl. 216; Jones v. Nanny, 1 M. & W. 333) ; or that the work was done by an unqualified person in plain- tiff's name. Parker v. Riley, 3 M. & W. 230. So the defendant may show that he supplied the plaintiff's men with beer to reduce the rate of wages for the work (Granger v. Raybould, 9 C. & P. 229) ; or that he did the work himself for the plaintiff (Turner v. Diaper, 2 M. & G. 241) ; or supplied materials for it. Newton v. Foster, 12 M. & TV. 772. To an indebitatus count for wages or salary, any defence which establishes that before the money became due the plaintiff was properly discharged from his service, may he shown under this plea (Turner v. Robinson, 6 C. & P. 15; Ridgway v. llun- gerford Market Co. 3 Ad. & E. 171) ; unless, however, the dismissal actually took place, the question of misconduct cannot be gone into under the general issue. Cooper v. Whitehouse, 6 C. & P. 545. So the defendant may show that the plaintiff cohabited with him as his mistress, as that tends to negative a contract of service (Bradshaw v. Haywood, 1 C. & M. 591) ; or that the defendants, being a corporation, did not contract uuder seal, or with the formal- ities required by the act of incorporation. Cope v. Thames Haven Ry. Co. ? Ex. 841 ; Frend v. Dennett, 4 C. B. N. S. 576. Money had and received.^ — In an action for money had and received, the plea of never was indebted will operate as a denial both of the receipt of money and the existence of those facts which make such receipt by the defend- ant a receipt to the use of the plaintiff (R. G. T. T. 1853, r. 6), such as that PLEAS IN CONTRACT. PLEAS IN BAR. 263 the money was received not entirely for the plaintiff's use, but that defendant might reimburse himself a debt out of it (Solly v. Neish, 2 Cr., M. & R. 355 ; Owen v. Cliallis. 6 C. B. 115) ; or that it was received for the use of a third person (Clarke v. Dignam, 3 M. & W. 478) ; or that defendant had a lien on it (Williams v. Vines, 6 Q. B. 355) ; or any facts which show that the con- tract made was not one to pay on request. Brownrigg v. Rae, 5 Ex. 489. Account stated.] — Never was indebted, to a count upon an account stated, denies that the parties came to an account, and that the defendant was in- debted to the plaintiff thereon (Jacobs v. Fisher, 1 C. B. 178) ; the defendant may therefore prove, under this plea, that he was not in reality indebted because there are errors in the account (Thomas v. Hawkes, 8 M. & W. 140 ; Wilson v. Wilson, 14 C. B. 616) ; or that the items were such that he was not primarily, but only collaterally liable (Gould v. Coombs, 1 C. B. 543) ; but not that a subsequent account was in his favor. Fidgett v. Penny, 1 Cr., M. & R. 108. To any of the common counts defendant may show that the plaintiff and defendant were partners (Payne v. Hales, 5 M. & W. 598 ; Brown v. Tap- scott, 6 M. & W. 123 ; Worrall v. Grayson, 1 M. & W. 166) ; it is a defence when one firm is suing another, that either of the parties is a member of both firms. Post, " Partners ; " Chitty on Contracts. See post, " Account stated." As to the effect of non-joinder and misjoinder of plaintiffs, see ante, Pleas, " Abatement." Payment.'] — Payment shall not in any case be allowed to be given in evi- dence in reduction of damages or debt, but shall be pleaded in bar. R. G. T. T. 1853, r. 14. See post, " Payment." As to where, from goods being sold for ready money and paid for at the time, or where, from the state of dealings between the parties, no debt arises, and therefore a plea of payment is un- necessary, see Bussey v. Barnett, 9 M. & W. 312; Littlechild v. Banks, 7 Q. B. 739; 18 Q. B. 722, per Lord Campbell; note to Coldham v. Showier, 3 C. B. 320 ; Smith v. Winter, 12 C. B. 487 ; Baker v. Heard, 5 Ex. 959 ; [1 Chitty PL 504.] Pleas of payment and set-off, and all other pleadings capable of being construed distributively, shall be taken distributively ; and if issue is taken thereon, and so much thereof as shall be sufficient answer to part of the causes of action proved shall be found true by the jury, a verdict shall pass for the defendant in respect of so much of the causes of action as shall be answered, and for the plaintiff in respect of so much of the causes of action as shall not be so answered. C. L. P. Act, 1852, s. 75. Where to a general count a gen- eral traverse is pleaded, the issue may be treated distributively ; and if the plaintiff succeeds in part only, and recovers less than his demand, the defend- int has a right to have the verdict entered for him as to the residue, and to wave his costs, if any, allowed of his successful defence to any distinct part of the plaintiff's claim. Treherne v. Gardner, 8 El. & Bl. 161 ; Paterson v. Harris, [1 B. & S. 336.] See, further, Day's Common Law Procedure Act, 70, and Gray on Costs. S. 74 of the C. L. P. Act, 1852, enacts that " Whereas certain causes of action may be considered to partake of the character both of breaches of con- tracts and of wrongs, and doubts may arise as to the forms of pleas in such 284 PLEAS IN CONTRACT. PLEAS IN BAR. actions, and it is expedient to preclude such doubts ; any plea which shall be good in substance shall not be objectionable on the ground of its treating the declaration either as framed for a breach of contract or for a wrong." By r. 8, H. T. 1853, the defendant shall not be at liberty to waive his plea, or enter a relictd verificatione after demurrer, without leave, unless by con- sent If any pleading be so framed as to prejudice, embarrass, or delay the fair trial of the action, the opposite party may apply to the court or a judge to strike out or amend such pleading, and the court or any judge shall make such order respecting the same, and also respecting the costs of the application, as such court or judge shall see fit. C. L. P. Act, 1852, s. 52. The power of the courts or judges to set aside pleadings tending to embarrass is limited to such as are at once embarrassing and irregular, informal, or tricky, and con- trary to the rules and practice of pleading, and does not extend to such as merely put the opposite party to difficult, expensive, and needless proof. Wel- land Ry. Co. v. Blake, 6 H. & N. 410. See, further, Day's Common Law Pro- cedure Act, 48, 49. It seems that if an act of parliament gives a party a general form of declaration, and enacts that it shall only be necessary to prove certain matters in support of it, the plea of the general issue requires the plaintiff to prove all such matters. Edinburgh Ry. Co. v. Hibblewhite, 6 M. & W. 707 ; Brighton Ry. Co. v. Wilson, 6 Bing. N. C. 135 ; post, Pleas, " Public Company." See Welland Ry. Co. v. Blake, 6 H. & N. 410, in which case the company was incorporated by a colonial act. 1. Plea of Nunquam Indebitatus to the whole Declaration. The defendant, by , his attorney, (/) [or " in person "] says, (g) that he (A) never was indebted as alleged, (i) 2. The like to Part of a Declaration. (¥) As to the [first] count (I) [or " as to the causes of action so far as they relate to the sum of £ ," or " except as to the sum of £ parcel of the money claimed"], says that he never was indebted. 3. The Similiter. Ante, 20, Form 2. 4. Non Assumpsit. That he did not promise as alleged, (m) [For this class of cases the Massachusetts Practice Act prescribes the fol- lowing forms of answer : — (/) Ante, 19, note (o). erse the whole of any plea or subsequent (g) Ii the form is not restricted in the pleading of the defendant by a general de- commencement, it will be taken as pleaded nial, or admitting some part or parts thereof to the whole declaration. to deny all the re.-t, or to deny any one^or (h) See the form where one defendant more allegations. C. L. P. Act, 1852, s. 77. onlv pleads, others being sued, ante, 20. (m) This is the form given by C. L. P. (t) This is the form given by C. L. P. Act, 1852, sch. B, 37, and is applicable to Act, 1852, sch. B, and is applicable to decla- declaration on simple contracts, not on hills rations like those numbered 1 to 14 in that or notes, numbered 19 to 22. In that sched- schedule. ule " did not warrant," " did not agree," or (Ic) See other forms, ante, 20, variations any other appropriate denial would be unob- and see notes (f) and (g), supra. jectionable. lb. (/) A plaintiff shall be at liberty to trav- PLEAS IX CONTRACT. PLEAS IX HAR. 285 Money had and received. — And the defendanl comes and upon hi> personal knowledge denies that he received the money mentioned in the plaintiff's bill ;>f particulars, or any part thereof. [Or, if the case be so,] admits that he received the money mentioned in the plaintiff's declaration, but denies that, he received it to the plaintiff's ii And the defendant comes and says, upon bis personal knowledge, that he received the money mentioned in the plaintiff's bill of particulars, hut upon bis information and belief he denies that he received the same or any part thereof to the plaintiff's use. And the defendant comes and upon ins personal knowledge denies that he has received to the plaintiff's use the money mentioned in the plaintiff's bill of particulars, except the sum of fifty dollars. Statute of Limitations. — And the defendant comes and answers that the cause of action mentioned in the plaintiff's writ did not accrue within six years before the suing out of the plaintiff's writ. Payment. — And the defendant comes and answers that he has paid the plaintiff the sum of dollars, which was the full amount of the account stated in the plaintiff's bill of particulars. If there are several items, add: And he annexes hereto a bill of particulars of said payment. Account annexed. — Goods sold and delivered. — And the defendant comes and answers as follows, viz. As to the first ten items of the plaintiff's bill of particulars, upon his personal knowledge he denies that the plaintiff sold and delivered the same to the defendant. As to the eleventh item, upon his personal knowledge he denies that the price was to be more than ten dollars. Work. — As to the twelfth item, he is ignorant personally, and by informa- tion and belief, whether the plaintiff performed the day's labor there charged or not, and also of the price thereof, if any, so that he can neither admit nor deny the plaintiff's allegation, but leaves the plaintiff to prove the same.] Non est Factum. In actions on specialties and covenants, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable. R. 10. And by r. 11, "all matters in confession and avoidance shall be pleaded specially as above directed in actions on simple contracts." This plea, properly speaking, - not amount to the general issue; it merely denies the execution and effect of the deed as set out. If that be proved, the plaintiff must recover, as the plaintiff's other allegations and the breach are admitted. This alleged effect of the deed, as well as its' execution, are put in issue by this plea- North p. Wakefield, 13 Q. B. 536; Fazakerly v. M'Knight, [6 El. & Bl. 795;] 26 L. J. Q. B. 30. The necessity for profert and oyer is now abolished, but by C. L. P. Act, 1852, s. 56, a party pleading in answer to any pleading in which any document is mentioned or referred to, shall be at liberty to set out the whole or such part thereof as may be material, and the matter so set out shall be deemed and taken to be part of the pleading in which it is set out 286 PLEAS IX CONTRACT. GENERAL ISSUE. It puts the plaintiff upon proof of the execution of the instrument as de- scribed in the declaration, and of such collateral circumstances (such as, in the case of a company executing a deed, that they have complied with the private act) necessary to give the execution validity. Hill v. Manchester &c. Co. 5 B. & Ad. 866. It admits the breach alleged in the declaration. As to an alteration, see post, 298. Where the defence is, that the damage on a bond arose from something extra on the contract, this may be set up on non est factum. Warre v. Calvert, 7 Ad. & E. 143. Declaration against W. F., sued as W. B. Plea, non est factum. Proof of execution in the name of W. B. by defendant, and that he was known by the name of W. B., held no variance ; and that if it were, it should have been pleaded specially. "Williams v. Bryant, 5 M. & W. 447. It seems doubtful whether an inconsistent contract can be set up on non est factum. Trott v. Smith, 12 M. & W. 688. The plaintiff must, at the trial, on non est factum pleaded, produce the instrument duly stamped ; and as it is now no longer necessary to call the attesting witness except to those instruments to which attestation is still neces- sary (17 & 18 Vict. c. 125, s. 26), such as wills and instruments under pow- ers, &c. the execution may be proved in any manner. See Taylor on Evi- dence, 3d edit. § 1638. Frequently the necessity of proof is dispensed with by the defendant's admission of the execution of the instrument, on the plain- tiff taking out, as he should do, a summons calling on defendant to admit such execution. If the defendant (in court) does not plead non est factum, the execution of so much of the deed as is expounded on the record is admitted ; but if the plaintiff wishes to avail himself of any other part of the deed, he must prove it in the usual way. Williams v. Sills, 2 Camp. 519. Upon non est factum, the defendant may rely upon a material variance between the deed and the description of it in the declaration (Smith v. Scott, 6 C. B. N. S. 770) ; but in ordinary cases of variance not material to the merits, the judge will allow an amendment at the trial, under C. L. P. Act, 1852, s. 222, and C. L. P. Act, 1860, s. 36. As to obtaining inspection, see Chitty Arch. Plea, non est Factum. That the alleged deed is not his deed, (n) III. GENERAL ISSUE BY STATUTE. Obs. — There are several statutes which allow the general issue to be pleaded in cer- tain cases, and at the same time enact that special defences may he given in evidence under that plea. Thus by the 21 Jac. 1, c. 4, s. 4, " In any action against the form of any /" mil law, it shall he lawful for the defendants to plead the general issue, that they are not guilty, or that they owe nothing, and to give such special matter in evidence to the jury that shall try the same, which matter being pleaded had been a good ami sufficient matter in law to have discharged the defendants (n) The plea should describe the instrument by the same name by which it is designated in the declaration. PLEAS IN CONTRACT. GENERAL BSUE. 287 Dbs. against tin- said action." An action of debt Eor penalties for no! Betting out tidies was held within this enactment : Lord Spencer v. Swannell, 3 M. & VV. 160; and it applies to subsequent statutes, and therefore was allowed to be pleaded to an action of debt on the n Greo. 2, c. 19,8. 4, for double value of goods fraudulently removed by a tenant ; Junes v. Williams, l M. & \Y. ;;7;j; and also to an action on the 22 Greo. 2, c. 46, s. 14, against a deputy clerfc of the peace for practising as an attorney; Faulkner v. Chevell, 5 Ad. & E. 213 ; but it onlv applies to informers, and not to actions brought by the party grieved; Fyfe v. Bousfield, 2 D. & L. 181; S. ('. 6 (J. 15. 100; and an action for pound breach under 2 W. & M. c. 5, is not within it. Castleman c. Hicks, 1 Cr. ,\ M. 266; S. C. 2 M. & R. 422. By 21 Jac. 1, c. 12, s. 5, "Magistrates, mayurs, constables, churchwardens, or overseers, and their deputies and others acting in aid of them, may, when sued in case of trespass for doing anything concerning their ollice, plead the general issue and give the special matter in evidence." By 5 & G Viet. c. 97, s. 3, " So much of any clause or provision in any act or acts commonly called public local and personal, or local and personal, or in any act or acts of a local and personal nature, whereby any party or parties are entitled or permitted to plead the general issue only, and to give any special matter in evidence without specially pleading the same, shall be and the same is hereby repealed." This does not apply to subsequent statutes. Bodcn v. Smith, G C. B. 7. An act for establishing a local court of re- quests was held within this enactment, though the act contained a clause making it a public act. Cock v. Gent, 12 M. & W. 234. See, as to what acts are local and personal, Shepherd v. Sharp, 24 L. J. Ex. 29. In error, 25 L. J. Ex. 254. See, also, Carr v. The Royal Exchange Assurance Co. 31 L.J. Q. B. 93; [1 B. & S. 95(5.] The plea of nil debet, as we have seen, ante, 275, is now abolished in all cases, and although there is no exception made in favor of cases where the general issue by statute is given, it is conceived that it would still be a proper mode of pleading the general issue by statute. In Week v. Argent, 16 M. & W. 817, it was held that whereas by the 5 & 6 Vict. c. 122, s. 40, the general issue might be pleaded, and that act and the special matters given in evidence in defence of an action on a security given by a bankrupt with intent to persuade a creditor to forbear opposing bis cer- tificate ; that non assumpsit (by statute) might be pleaded under this enact- ment on an action on a bill or note, notwithstanding Reg. Gen. H. T. 4 W. 4 (which made non assumpsit inadmissible to bills and notes), on the ground that the 5 & 6 Vict., subsequently to the Keg. Gen., authorized the pleading of the general issue, which in that action could only be non assumpsit. As all the actions to which the plea of not guilty by statute was given by 21 Jac. 1, c. 4, s. 4, were either tort in the common sense of the word, or offences against a penal statute, it would seem that not guilty by statute would be a good plea in any of those cases. It has been decided in Coppin qui tarn v. Carter, 1 T. R. 4G2, that not guilty to an action of debt on a penal statute is not such a nullity as warrants judgment to be signed for want of a plea; and indeed it would rather seem from that case that this was a good plea. In Langley v. Haynes, Mo. 302, such a plea was held good. A plea formed on the authority of Heaver <•. Mayor of Manchester, 2G L. J. Q. B. 311; [8 El. & Bl. 41,] would perhaps, in most cases, avoid any doubt, and give the defendant the full benefit of plea, not guilty by statute; as Erie J. there said, " Why should not all the public have the same advantage given them by the common law procedure act as, by certain acts of parlia- ment, is already given to particular individuals and classes. It appears to be the general practice now, to plead not guilty by statute in all cases where general issue by statute is allowed to be pleaded. The general issue by statute lets in not only defences given by the statute, but also those which would have arisen at common law : Uoss v. Clifton, 11 Ad. & E. G31; S. C. 9 Dowl. 1033; and Langford v. Woods, 7 M. & G. 629; and likewise defences resting partly on the statute and partly at common law; lb. ; and Maund v. Monmouthshire Canal Co. 1 Cr. & M. GOG ; and it extends also to new assignments. Mason v. Newland, 9 C. & P. 574. Special pleas, tak- ing defences which by the statute might be given in evidence under the 1>S PLEAS m CONTRACT. ACCORD AND SATISFACTION. Obs. above plea, will not he allowed along with it. Legge v. Boyd, 1 M. & G. 902 ; S. C. 9 Dowl. 59; and see Williams v. Jones, 11 Ad. & E. 643; Eagle- ton v. Gutteridge, n M. & YV. 465. Plea of the General Issue by Statute. By statute, (o) — That he is not guilty. IV. ACCORD AND SATISFACTION. Obs. — Accord and satisfaction must be specially pleaded. R. G. T. T. 1853, r. 8. Accord is an agreement between the contending parties to give and accept something in satisfaction and discharge of the cause of action. Bac. Abr. tit. Accord and Satisfaction. There cannot be a good accord and sat- isfaction of the whole of a liquidated debt by payment by the debtor of a part, unless there be a good consideration for giving up the remainder: Evans v. Powis, 1 Ex. 601, 606; Cooper v. Parker, 14 C. B. 118; 15 C. B. 822; Fitch v. Sutton, 5 East, 230; [Seymour o. Minturn, 17 John. 169; Geiser v. Kershner, 4 Gill & J. 305; Hardey v. Coe, 5 Gill, 189; Brooks v. "Whit-. 2 Met. 283; Wheeler v. Wheeler, 11 Yt. 60; Bailey v. Day, 26 Maine, 88; Lee v. Oppenheimer, 32 Maine, 254; Eve v. Mosely, 2 Strobh. 203; Walen v. Kirby. 99 Mass. 1, 3; Twitchell v. Shaw, 10 Cush. 48; Tat- tle v. Tuttle, 12 Met. 554; Warren v Skinner, 20 Conn. 557; Hays v. David- son, 70 N. Car. 573; Bryan v. Foy, 69 N. Car. 45 ; McKenzie v. Culbreath, 66 N. Car. 534; Mitchell v. Sawyer, 71 N. Car. 70; Bliss v. Swartz. 7 Lansing 186; Miller v. Holden, 18 Vt. 337; Fellows v. Stevens, 24 Wend. 294 ; Vance v. Lukenbill, 9 B. Mon. 249 ; Ryan v. Ward, 48 N. Y. 204 ; Clif- ton i'. Litchfield. 106 Mass. 34; 1 Chitty Contr. (11th Am. ed.) 62, 63;] but this is different where there is an unliquidated demand of pecuniary dam- ages. See notes to Cumber v. Wane, 1 S. L. C; [Wilkinson v. Byers, 1 Ad. &°E. 106; Sibree v. Tripp, 15 M. & W. 23; McDaniels v. Lapham, 21 Vt. 223; Donohue v. Woodbury, 6 Cush. 148, 150, 151; Palmerton v. Huxton, 4 Denio, 166 ; Hiern v. Carren, 11 Sm. & M. 361 ; Stockton t>. Frey, 4 Gill, 406.] An agreement may be accepted in satisfaction of an existing cause of action ; Flockton v. Hall, 14 Q. B. 380; 16 Q. B. 1039; hut the agreement itself must be accepted in satisfaction and not only the performance of it. Evans o. Powis, 1 Ex. 601; [2 Chitty Contr. (11th Am. ed.) 1123, 1124, and notes; Babcock v. Hawkins, 23 Vt. 561; Goodrich v. Stanley, 24 Conn. 613 ; Bige- low v. Baldwin, 1 Gray, 254; Woodward v. Miles, 24 N. H. 289; Perkins v. Lockwood, 100 Mass." 249 ; Billings v. Vanderbeck, 23 Barb. 546.] Upon a mere simple contract a negotiable security may be a satisfaction of a claim for a larger amount. Sibree v. Tripp, 15 M. & W. 23; [Conkling v. Kino-, 10 Barb. 3 72; Sanders v. Branch Bank, 13 Ala. 353; Brooks v. White, 2 Met. 233; Boyd v. Hitchcock, 20 John. 76; Lee v. Oppenheimer. 32 Maine, 353; Bliss v. Swartz, 7 Lansing, 186.] So also the payment of a smaller sum than due, and abandoning a plea of infancy, whether true or (o) By Reg. Gen. T. T. 1853, r. 21, "in plea itself so pleaded in its effects and con- every case in which the defendant shall plead sequences remains altogether unaltered by the general is^ur, intending to give the spe- this rule. Bartholomew v. Carter, 3 M. & cial matter in evidence by virtue of any act of G. 125. In Edwards v. Hodges, 15 C. B. parliament, he must insert in the margin of 477, the court allowed the defendant to the plea words ' hv statute,' together amend a plea of not guilty by statute by with the year or years o? the reign in which inserting in the margin statutes necessary to the act or acts of parliament upon which justify the trespass complained ot alter ver- he relies for that purpose were passed, and diet for the defendant, and a rule nisi to set also the chapter and sections of each of such it aside. Upon affidavit that the plaintiff acts, aud shall specify whether such acts are cannot discover the statute, the court will public or otherwise, otherwise such plea shall order the defendant to point it out, or else \ be taken not to have been pleaded by virtue that the words " by statute " be struck out of any act of parliament ; and such memo- of the margin of the plea. Coy v. Lord randum shall be inserted in the margin of Forrester, 8 M. & W. 313; S. C 9 Dowl. the issue, and of the nisi prius record." The 770. PLEAS IN CONTRACT. ACCORD AND SATISFACTION. 289 false. Cooper v. Parker, vbi supra: [2 Chitty Contr. (11th Am. e) and cases cited;] still less is an agreement for an accord. Smart '•. ('hell, 7 Dowl. 781. In Gilford v. Whittaker, 6 Q. B. 249, a plea to an indebitatus count, which stated that plaintiff was to pay himself out of some of defendant's moneys which he was to receive, and that through his own default he received nothing, was held bad as being neither an accord nor a satisfaction. See another instance, Grif- fiths v. Owen, 13 M. & W. 58. But an agreement subsequent to and inconsistent with the agreement declared on is a good defence, if made before breach of the. latter; Rippingale v. Llovd, 5 B. & Ad. 742 ; Taylor v. Hillary, 1 Cr., M. & R. 741 ; S. C. 7 C. & P. 30; where see form of plea; and see, also, post, title "Rescinded Contract;" provided such subsequent agreement be made on a new consideration. Col- lingburne r. Mantell, 5 M. & W. 289. Accord and satisfaction after covenant broken is a good plea; Blake's case, 6 Co. 44 ; but not before breach. May v. Taylor, 6 M. & G. 262, note (a). As to pleading accord and satisfaction to a special!;/ demand, see Preston v. Christman, 3 Wils. 86 ; Kaye v. Waghorn, 1 Taunt. 428 ; Drake v. Mitchell, 3 East, 251; Scholey v. Mearns, 7 East, 147; Worthington v. Wigley, 3 Bing. N. C. 454. See post, tit. " Payment." To a specialty claim defendant can- not plead a parol agreement by which the deed was abandoned. West v. Blake way, 2 M. & G. 729. See, in general, [2 Chitty Contr. (11th Am. ed.) 1102, 1103, 1122 et seq. ;] Cumber v. Wane, 1 S. L. Ca. 288. 1. Plea of Accord and Satisfaction after Breach, (p) That he delivered to the plaintiff, and the plaintiff accepted (q) and received from the defendant * [here mention the thing given in satisfaction] (r) in satis- faction f and discharge of the plaintiff's claim. [la. Form of Answer of Accord. And the defendant comes and says he delivered to the plaintiff one wagon, (p) If the accord and satisfaction were should he of equal value " (with the deht), after writ, the plea should be altered accord- " for the party receiving it is always taken ingly. See post, " Payment after Action." to be the best judge of that in matters of un- fCorbett i\ Swinburne, 8 Ad. & E. 57.3.] certain value. Andrew v. Boughey, Dyer, (q) The acceptance, as an act of the will, 72 a ; " per Lord Denman C. J. in Tboinp- by the party receiving, must be clearly son v. Percival, 5 B. & Ad. 932 ; [Douglass proved, the jury cannot infer it from the v. White, 3 Barb. Ch. 621; Watkinson v. course of business between the plaintiff and Inglesby, 5 John. 386 ; Eaton v. Lincoln, 13 i defendant. Hardman v. Bellhouse, 9 M. & Mass. 424 ; Dewey J. in Brooks v. White, 2 I W. 596. Met. 285, 286.] (r) " It is not required that the chattels VOL. II. 19 290 PLEAS IN CONTRACT. ACCORD AND SATISFACTION. which the plaintiff received in full satisfaction of the note mentioned in the plaintiff's writ.] 2. That a Bond has been taken in Satisfaction, (s) As in last form to the asterisk.] — The bond of the defendant in the penal sum of £ , conditioned for the payment by the defendant to the plaintiff of £ , and interest in satisfaction \_Sfc. as in last form from the f], 3. Plea to a Note, Satisfaction by Work, Goods sold, and Money lent, under an Agreement to that effect. That after the said note became due, by agreement between the plaintiff and the defendant, the defendant did work, and provided materials for the same for the plaintiff"; and sold and delivered goods and chattels to the plaintiff, and lent moneys to him in satisfaction and discharge of the principal and interest due on the said note, and the interest to become due until the same should be paid off and satisfied ; and the plaintiff accepted such work and materials, goods and chattels, and moneys lent, in such satisfaction and discharge as aforesaid, (t) 4. Plea to Money paid for Defendant' 's use, that he became liable thereto as Defendant'' s Surety, and that he deposited Goods with the Plaintiff with a Power of Sale to cover his Liability, and that Plain- tiff sold the same in Satisfaction of the Demand. (ii) As to the sum of £ , parcel, &c. the defendant says that the plaintiff, before this suit, became surety for the defendant, at his request, to E. F. for £ ; and that the defendant deposited with the plaintiff certain goods of the value of £ , and it was agreed between them, that, if the plaintiff should pay the said sum of £ for the defendant, he the plaintiff should sell such goods, and apply the proceeds in satisfaction and discharge of the money he should have so paid for the defendant ; and the plaintiff as such surety paid the same for the defendant, and sold the said goods and applied the proceeds (s) Post, "Deed." This defence must be v. Poyer, 1 C. B. 782; by an agreement to specially pleaded where the bond is given refer certain matters to arbitration and per- after the original debt has been contracted, formance of the agreement; Williams v. See Weston v. Foster, 2 Bing. N. C. 693. London Commercial Exchange Co. 10 Ex. Aliter, where the bond is given at the time 569 ; by the settlement of a former action such debt accrues ; in the latter instance, for the same cause on payment of the debt the specialty security excludes the implied and costs; Power v. Butcher, 10 B. & C. promise, and the general issue suffices. lb.; 329; Ross v. Jaques, 8 M. & W. 135; by Mathew v. Blackmore, 1 II. & N. 762. As paying a smaller sum and withdrawing a de- to merger of a debt in a higher security, see fence to an action and paying costs ; Cooper 3 M. & G. 213 ; Yates v. Aston, 4 Q. B*. 182. v. Parker, 14 C. B. 118 ; 15 C. B. 822 ; by Winn promissory note not merged in sub- delivering possession of a house and a pay- sequent warrant of attorney, Bell v. Banks, ment of money ; Lavery v. Turley, 6 II. & 3 M. & G. 264. See the pleadings and law N. 239 ; by delivery of other negotiable in- where a bill or note has been taken in sat- struments, in an action on a bill of exchange ; is/action of the debt. Sard v. Rhodes, 1 M. James v. Williams, 13 M. & W. 828; by ac- & W. 153. The plaintiff could not reply ceptance of other goods in place of those that the bond or bill was unpaid. Post, contracted for; Gabriel r. Dresser, 15 C. B. " Bill taken." 622 ; to an action for breach of condition of (t) [Plea of accord and satisfaction by de- bond ; Field v. Robins, 8 Ad. & E. 90.] livering goods; Hall v. Poyser, 13 M. & W. (w) See a similar plea, Ross v. Moses, 1 600 ; by a set-off of mutual debts ; Wallace C. B. 227. See, also, a form by delivering v. Kelsall, 7 M. & W. 264 ; Learmouth v. possession of a house and paying money, Grandine, 4 M. & W. 658 ; by delivering Lavery v. Turley, 6 H. & N. 239. goods to a third party for the plaintiff ; Stead PLEAS IN CONTRACT. ACCORD AND SATISFACTION. 291 thereof received by him upon such sale in satisfaction and discharge of the said sum of £ , parcel, &c. 5. Plea of a Guaranty of a Third Person, given in Satisfaction of ihr Debt sued on. Pope v. Andrews, 9 C. & P. 564 ; and see Alexander v. Strong, 9 M. & W. 734; 2 Dowl. N. S. 256. 6. Plea that the Defendant was indebted to Plaintiff and a Third Per- son, and that he gave them jointly a Warrant of Attorney for their Debts in full Satisfaction. That whilst the defendant was indebted to the plaintiff as alleged, and be- fore this suit, the defendant was also indebted to one T. W., and the defendant then, at the request of the plaintiff and the said T. W., signed, sealed, and as his act and deed delivered to them, a warrant of attorney to confess judg- ment, bearing date on [4* 6 '-]> directed to certain persons therein named, as and then being attorneys of her majesty's court of queen's bench at Westminster respectively, or to any other attorney of the same court, and thereby empow- ered them [fyc. set out the warrant of attorney and the defeasance], and the defendant then, at the request of the plaintiff and T. W., delivered to them, and they then accepted and received of and from the defendant, the said war- rant of attorney in full satisfaction and discharge of the moneys then owing to them, and of all causes of action in respect thereof. 7. Plea of Satisfaction to one of three Plaintiffs. Wallace v. Kelsall, 7 M. & W. 264. (x) 8. Plea that Plaintiff and E. F. ivere indebted to Defendant, and Agreement that such Debt should be set off against the Debt sued for, Defendant paying the Difference. That after the plaintiff's claim became due, and before this suit, one E. F. and the plaintiff were indebted to the defendant in £ , and it was agreed by and between the defendant, E. F., and the plaiutiff, that the defendant should abandon all claim against the plaintiff and E. F. for the said debt so due as aforesaid, and that the same should be set off against an equal amount of the debt due from the defendant to the plaintiff in the declaration men- tioned, and that the defendant should pay to the plaintiff the difference, and that the causes of action in the declaration mentioned should thereupon be sat- isfied and discharged ; and the defendant in pursuance of the said agreement abandoned all claim for the said debt against the said plaintiff and the said E. F. or either of them ; and the said respective debts were set off against each other as aforesaid, and the defendant paid to the plaintiff, and the plaintiff* re- ceived from him the said difference upon the terms aforesaid ; and all claims and causes of action in the declaration mentioned were thereupon satisfied and discharged. (x) It was held in that case that authority from the other plaintiffs to make the settle ment need not be averred or proved. 292 PLEAS IN CONTRACT. ACCORD AND SATISFACTION. 9. That Plaintiff was indebted to one T. J., and Agreement that De- fendant should pay T. J. the Debt sued for, Plaintiff's Debt to T. J. and Defendant's Debt to Plaintiff being respectively extinguished, (j/) That the plaintiff, after the cause of action herein pleaded to had accrued, and before this suit, was indebted to T. J., and T. J. was indebted to the plain- tiff, and thereupon it was agreed by and between the plaintiff, the defendant, and the said T. J., that an account should be stated by and between the said T. J. and the plaintiff, and that the plaintiff should be accredited in such account with the sum due from the defendant to the plaintiff herein pleaded to, and should be allowed the same in such account as though the same were a debt due from the said T. J. to the plaintiff; and that the said T. J. should accept the defendant instead of the plaintiff as his debtor, and that all claims and causes of action of the plaintiff against the defendant in respect thereof should be thereby discharged and satisfied ; and that as to such sum so to be allowed in such accounts, all claims and causes of action of the said T. J. against the plaintiff in respect thereof should be thereby discharged and satisfied ; and in pursuance of such agreement an account was had and stated by and between the said T. J. and the plaintiff as aforesaid, and the plaintiff was accredited in such account as aforesaid, and the plaintiff was allowed by the said T. J. the amount of the sum due from the defendant to the plaintiff as aforesaid, as though the same had been a debt due and owing from the said T. J. to the plaintiff, and the said account was then finally stated and settled in pursuance of the said agreement, and the said T. J. then accepted the defendant as his debtor on the terms aforesaid, and the plaintiff then accepted such premises in full satisfaction and discharge of the causes of action herein pleaded to. (z) 10. Plea that Defendant was indebted to one F. P., and Agreement that Plaintiff should accept F. F. as his Debtor, in lieu of Defend- ant, (a) That after the plaintiff's claim became due, and before this suit, one F. F. was indebted to the defendant in £ ; and it was then agreed by and be- tween the plaintiff, the defendant, and F. F., that the defendant should relin- (y) In Cochrane v. Green, 9 C. B. N. S. ascertained debt due from A. to B., and a 448, a similar plea was held bad for not debt of the same or a larger amount due showing that the plaintiff agreed to dis- from C. to A., and it is agreed between them charge the defendant. that C. shall be B.'s debtor instead of A.; (c) Where a plea averred a set-off on ac- B. may maintain an action against C. Fair- count of a debt due from plaintiff to defend- lie v. Denton, 8 B. & C. 395. See per Bul- ant, and then alleged that an account and ler J. Tatlock r. Harris, 3 T. R. 180. See settlement of that debt and of the debts in Crowfoot v. Gurney, 9 Bing. 372 ; and Liv- the declaration was accepted by plaintiff in ersidge v. Broadbelt, 4 II. & N. 603. But accord and satisfaction, it was held sufficient the debt must lie extinguished so as to in the replication to allege merely that plain- amount to a satisfaction of it. Cuxon v. tiff was not indebted in manner and form, Chadley, 3 B. & C. 591. The acceptance by &c. Learmouth v. Grandine, 4 M. & W. a creditor of the separate liability of one of 658. several persons jointly liable is a sufficient (a) Seethe cases, [2 Chitty Contr. (11th consideration for the discharge of the others Am. ed.) 912-914, 1371-1381, and notes; from their joint liability, and maybe pleaded Griswold v. Griswold, 7 Lansing, 72; Helms in accord and satisfaction. Lyth v. Ault, 7 v. Kearns, 40 Ind. 124.] Although the gen- Ex. 669 ; 21 L. J. Ex. 217, where see form, eral rule of law is that a debt cannot be See Cochrane *-. Green, 9 C. B. N. S. 448 ; assigned, yet where there is a defined and Pott v. Lomas, 6 II. & N. 529. PLEAS IN CONTRACT. ACCORD AND SATISFACTION. 293 quish his said claim against F. F. for the s:ii. Woodfall, G C. B. N. S. 65 7; or if tin- seal had been torn from a deed by a child; Argoll v. Cheney, Palm. 403; [see Powers v. Ware, 2 Pick. 451, 458-460;] or if the deed be destroyed by accident; Bolton v. Tie- Bishop of Carlisle, 2 II. Bl. 259; or by accident and time; Bead v. Brook- man, 3 T. R. 151; and see per Lord EUenborough, llendy v. Siephcnson, 10 East, 60; an action can still be brought on it in its original form. The in- strument will not in general be vitiated where all the parties consent to an alteration. [Stewart v. Preston, 1 Florida, 10; Wilkes v. Caulk, 5 Harr. & J. 36; Boston v. Benson, 12 Cush. 61; Wright v. Wright, 7 N. J. (Law) 175; Camden Bank v. Hall, 14 N. J. (Law) 533; Lewis v. Payn, 8 Cowen, 71 ; Wilson v. Henderson, 9 Sin. & M. 375. As to the respective provinces of the court and of the jury, the burden of proof and the presumptions, in regard to alterations, see 2 Chitty Contr. (11th Am. ed.) 1163, and note (e) and cases cited; Hunt v. Gray, 6 Vroora, 237 ; Haydon *>. (ioodnow, 36 Conn. 164; Leake Contracts, 433.] Sac post, " Rescinded Contract." 1. That a written Contract was altered and made void. [That the said contract was made in writing and signed by the defendant ; and afterwards, and whilst the said contract in writing was in the possession and custody of the plaintiff, it was rendered void by being materially altered without the consent or knowledge of the defendant, that is to say, by \Jiere stale the alteration made, as affixing a seal by and near the signature of the defendant as and for the seal of the defendant, or altering the words twenty shillings per bushel into thirty shillings per bushel, or as the case may be, so as to show the materiality of the alteration. If the declaration shows that the contract was in loriting, the first allegation may be omitted.'] (a)] 2. Replication that the Deed tvas altered by inserting the Amount. Fazakerly v. M' Knight, 6 El. & Bl. 795. AMBASSADOR. Obs. — An ambassador of a foreign state, accredited to and received by the queen, having no real property in England, and having done nothing to forfeit the privileges of ambassadors, cannot be sued in this country for a debt while he remains ambassador. The Magdalena Steam Navigation Co. v. Martin, [2 El. & El. 94.] And a secretary of legation, acting in the absence of his am- bassador as chargd-d' affaires, is entitled to all the privileges of his ambassa- dor (Taylor v. Best, 14 C. B. 487, where all the law is collected); and this Srivilege is not forfeited by his engaging in mercantile transactions. Taylor v. lest, 14 C. B. 487. See 7 Anne, c. 12. But where the servant of an ambas- sador did not reside in his master's house, but rented and lived in another, part of which he let off in lodgings, his goods in that house, not being neces- sary for the convenience of his ambassador, are liable to be distrained for poor rates. Novello v. Toogood, 1 B. & C. 554. (a) [For a like plea, see Mollettu. Waeker- 18 M. & W. 343 ; that a charter-party was barth, 5 C. B. 181. Plea that the agree- altered by the insertion of material words; ment was altered by affixing a seal so as to Croockewit v. Fletcher, 1 H. & N. 893. make it purport to he a deed of the defend- Oilier tonus, see Stobart v. Dryden, 1 M. & ant; Davidson v. Cooper, 11 M. & W. 778; W. 615; Harden v. Clifton, 1 Q. B. 523.] 800 PLEAS IN CONTRACT. ARBITRAMENT AND AWARD. 1. Plea to an Action of Debt, that the Defendant is an Ambassador. The Magdalena Steam Navigation Co. v. Martin, 28 L. J. Q. B. 310; [2 El. & El. 94.] ANNUITY. Obs. — The general issue non est factum to an action on an annuity deed, denies the execution of the deed. The 17 & 18 Vict. c. 90, repeals the 53 Geo. 3, c. 141, which required the enrolment of a memorial of annuity deeds. For forms in cases arising under the repealed acts, see the 2d edition of this work, 445. APOTHECARIES. Obs. — In an action for an apothecary's bill, the defendant may, under never in- debted, put the plaintiff on proof that he is registered according to 21 & 22 Yict. c. 90, s. 30. Sect. 27 points out the mode of proof. See ante, 47, " Apothecaries." Since the 21 & 22 Vict. c. 90, a physician, not a fellow of the college, may, if registered, recover his fees without a special contract, no by-law having been passed to restrain the general members from doing so. Gibbon M. D. v. Budd, 32 L. J. Ex. 182. It is sufficient if the registration has taken place at any time before trial, Turner v. Reynall, [14 C. B. N. S. 28 ;] and, per Erie C. J. and Byles J., it is sufficient if one of two partners is registered. lb. APPRAISER. Plea that Plaintiff ivas not duly licensed. Palk v. Force, 12 Q. B. 666. APPRENTICE. See ante, 49, Obs. 1. General Issue, Non est Factum. Ante, 285. 2. That, up to a certain time Defendant did teach, $c. and that then the Apprentice without leave quitted the Defendant' 's Service and never returned. Hughes v. Humphreys, 6 B. & C. 680. See Winstone v. Linn, 1 B. & C. 460. [2a. That Apprentice would not be Taught. Rayment v. Minton, 35 L. J. Q. B. 153.] 3. That the Plaintiffs were Partners when Apprentice Deed was ex- ecuted, and that they have since dissolved. Lloyd v. Blackburn, 9 M. & W. 363 ; 1 Dowl. N. S. 647. ARBITRAMENT AND AWARD. See post, « Award." PLEAS IN CONTRACT. ATTACHMENT OP DEBT8. 301 ASSIGNEES. See post, "Bankrupt." ATTACHMENT OF DEBTS. Obs. — By the C. L. P. Act, 1854, s. 60, •■ It shall be lawful for any creditor who has obtained a judgment in any of the superior courts, to apply to the court or a judge for a rule or order thai the judgment debtor should be orally examined as to any and what debts are owing to him before a master of the court, or such other person as the court or judge -hall appoint ; and the court or judge may make such rule or order for the examination of such judgment debtor, and for the production of any books or documents; and the examination shall be conducted in the same manner as in the case of an oral examination of an opposite party before a master under this act." By s. 61, " It shall be lawful for a judge, upon the ex parte application of such judgment creditor, either before or after such oral examination, and upon affidavit by himself or his attorney stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, to order that all debts owino; or accruing from such third person (hereinafter called the garnishee) to tin' judgment debtor shall be attached to answer the judg- ment debt; and by the same or any subsequent order, it may be ordered that the garnishee shall appear before the judge or a master of the court, as such judge shall appoint, to show cause why lie should not pay the judgment cred- itor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt." By s. 62, " Service of an order that debts due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee, in such manner as the judge shall direct, shall bind such debts in his hands." By s. 63, " If the »arnishee does not forthwith pay into court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, and does not dispute the debt due or claimed to be due from him to the judg- ment debtor, or if he does not appear upon summons, then the judge may order execution to issue, and it may be sued forth accordingly, without any previous writ or process, to levy the amount due from such garnishee towards satisfaction of the judgment debt." By s. 64, " If the garnishee disputes his liability, the judge, instead of making an order that execution shall issue, may order that the judgment creditor shall be at liberty to proceed against the garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment debtor, if less than the judgment debt, and for costs of suit; and the proceedings upon such suit shall be the same, as nearly as may be, as upon a writ of revivor issued under the Com- mon Law Procedure Act, 1852." By s. 65, " Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the judgment debtor, to the amount paid or levied, although such proceeding maybe set aside, or the judgment reversed." By s. 66, " In each of the superior courts there shall be kept at the master's office a debt attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovered, and otherwise; and the mode of keeping such books shall be the same in all the courts ; and copies of any entries made therein may be taken by any person upon application to any master." By s. 67, " The costs of any application for an attachment of debt under this act, and of any proceedings arising from or incidental to such application, shall be in the discretion of a court or a judge." And by the C. L. P. Act, lsiii), s. '28, •• In proceedings to obtain an attachment of debts under the C. L. P. Act, 1854, the judge may, in his discretion, refuse to interfere wdiere, from the smallness of the amount to be recovered, or of the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious." 302 PLEAS IN CONTRACT. ATTACHMENT OF DEBTS. Obs. By s. 29, " Whenever in proceedings to obtain an attachment of debts under the act above mentioned it is suggested by the garnishee that the debt sought to be attached belongs to some third person, who has a lien or charge upon it, the judge may order such third person to appear before him and state the nature and particulars of his claims upon such debt." By s. 30, " After hearing the allegations of such third person under such order, and of any other person whom By the same or any subsequent order the judire may think fit to call before him; or in case of such third person not appear- ing before him upon such summons, the judge may order execution to issue to levy the amount due from such garnishee, according to the provisions of the common law procedure act. 1854 ; and he may bar the claim of such third person, or make such other order as he shall think fit, upon the terms, in all cases, with respect to the lien or charges (if any) of such third person, and to costs, as he shall think just and reasonable." By s. 31, "The provisions of the common law procedure act, 1854, so far as they are applicable, shall apply to any order and the proceedings thereon made and taken in pursuance of the berein next before mentioned powers under this act." What may be attached. — The object of the act is, that where a person is not able to pay his creditors by reason of not being paid what is owing to him, if judgment is obtained against him, debts due to him should be attached to relieve him from the burden of the judgment. Kennet v. The Westminster Im- provement Commissioners, 11 Ex. 349. But the debt attached must not be a merely gratuitous payment, or one that cannot be enforced; Innes v. The East India Co. 17 C. B. 351; nor a debt of which the judgment debtor, before judgment, has made a bona, fide assignment; Hirsch v. Coates, 18 C. B. 757; and where by the terms of a bond the property, and not the com- missioners who executed it, is charged with its payment, and the agreement which was entered into between the commissioners and the bondholders only gave a limited right to recover, it was held that it was not such a debt as could be attached, because the compelling immediate payment would give a preference over the other bondholders, contrary to the agreement. Kennet v. The Westminster Improvement Commissioners, 11 Ex. 349. See Johnson v. Diamond, 11 Ex. 73. An executor of a judgment creditor who has not revived the iudrnnent or entered a sutio-estion according to the C. L. P. Act, ■J O CO o * 1852, s. 129, does not come within the meaning of the act. Baynard v. Sim- mons, 24 L. J. Q. B. 253. But it appears doubtful whether money in the hands of the judgment debtor's bankers merely as such can be attached ; Seymour v. Corporation of Brecon, 29 L. J. Ex. 243 ; and where the plain- tiff sued in the county court on a judgment in the superior court, and has obtained an order for payment by instalments, some of which have been paid, it was held that he could not take advantage of the act. Jones v. Jenner, 25 L. J. Ex. 319, hcesitante, Bram well B. But on a joint judgment against several, a debt due to one or more judgment debtors may be attached; Miller v. Mynn, 28 L. J. Q. B. 324; so where judgment is recovered against an ex- ecutor, a debt due to the testator's estate may be attached; Burton v. Rob- erts, 6 H. &N. 93; 29 L. J. Ex. 484; even though there is a decree in chan- cery for the administration of the estate. lb.; Fowler v. Roberts, 2 Giff. 22G. The proceeds of a call under the winding-up acts to provide for a debt of the company may be attached to answer a judgment against the creditor; In re The Warwick & Worcester Ry. Co.; In re Pritchard. ex {)arte Turner, 2 De G., F. & J. 354 ; but a judgment creditor cannot without eave attach moneys in the hands of a receiver of the court of chancery who lias been directed to pay them to the judgment debtor. De Winton v. Mayor &c. of Brecon, 28 Beav. 200. A verdict in an action of contract for unliquidated damages without judgment cannot be attached; Jones t>. Thomp- son, El., Bl. & El. 63; Dresser v. Johns, 6 C. B. N. S. 429; and a judgment creditor who has taken his debtor under a ca. sa., cannot attach his debts. Jauralde v. Parker, 6 H. & N. 431. But the fact of a debtor having been taken in execution, does not prevent his debt being attached. Marples v. Hartley, Hartley v. Shemwell, 1 B. & S. 1. The effect of the order of attachment. — The debt due to the judgment debtor is bound in the hands of the garnishee from the service of the ex parte order of PLEAS IN CONTRACT. ATTACHMENT OF DEBTS. 303 Ob9. attachment, subject to the provisions of tin- bankrupt acts for the distribu- tion of the bankrupt's property. Holmes v. Tutton, 5 EL & Bl. 65; Tilbury v. Brown, 30 L. J. Q. B. 46; [Wood v. Dunn, L. R. 1 Q. B. 77; S. C. L. R. 2 Q. B. 7:5.] A garnishee order ciinnot be reviewed by the admiralty court. The Olive, 1 Swab. 428; 5 Jur. N. S. 445. The garnishee cannot substitute a different mode of discharging his debt to that already existing between the judgment creditor and the judgment debtor; Turner v. Jones, 1 II. & N. 878; but if he pays the debt before service of the order, he is protected. Cooper v. Brayne, i?7 L. J. Ex. 446. As to the practice, see Chit. Pr. As to for- eign attachments in the lord mayor's court, see Locke on the Law and Practice of Foreign Attachment, Ashley's Practice of the Lord Mayor's Court. The custom of the city of London in reference to foreign attachment cannot be pleaded as a custom on a plaint being entered in the mayor's court to attach a debt due to the defendant from a third person on the bare fact of 4he debtor being found within the jurisdiction, although none of the parties • are either citizens or resident in the city, and neither the original debt nor that of the garnishee accrued within the city, for such a custom has been held to be bad. Cox v. The Mayor &c. of London, 32 L. J. Ex. 65, affirmed in error. A foreign attachment operates only upon the moneys in the hands of the garnishee between issuing the attachment and the entry of the pleas of the garnishee; Webster v. Webster, 81 L. J. Ch. 655; and a creditor who, after the debtor's death, obtains a foreign attachment against part of the assets, gains no priority over the fund attached as against the other cred- itors of the deceased. Redhead v. Walton, 29 Beav. 521. Execution exe- cuted upon a foreign attachment is a good plea in bar of the further mainte- nance of the action in an action against the garnishee. Webb v. Hurrell, 4 . C. B. 287. Service of notice of attachment out of the lord mayor's court does not excuse the holder of goods so attached from delivering them to the true owner. Pillot v. Wilkinson, [2 II. & C. 72; 3 H. & C. 345.] 1. Plea to a Declaration against Garnishee, (e) In the . E. F. ) The day of , A. d. . t ats. >- The said E. F., by , his attorney, says, that he never was A. B. ) indebted to the said C. D., as alleged. 2. Plea that Plaintiff (the Judgment Creditor') took the Judgment Debtor in Execution. (/) That before the issuing of the said writ of attachment in the declaration mentioned, the plaintiff sued out a writ of execution called a capias ad satis- faciendum, to take the body of the said A. B. [the judgment debtor^, to satisfy the plaintiff the sum recovered by the said judgment and interest, and before the issuing of the said writ of attachment, caused the said A. B. to be taken in execution to satisfy him the sum recovered by the said judgment and interest. 3. Plea of Payment to a Judgment Creditor of the Plaintiff. (g~) That after the accruing of the plaintiffs claim herein pleaded to, A. B. re- covered a judgment against the plaintiff in the court of , at Westminster, for the sum of £ , and was a judgment creditor of the plaintiff, within the meaning of the C. L. P. Act, 1854, to that amount, and afterwards and in pursuance of the said act, A. B., as such judgment creditor, made an ex parte (e) This form is given by R. G. M. V. (g) See form, Lockwood v. Nash, 18 C. B. 1854. 536. (/) See form, Jauralde v. Parker, 30 L. J. Ex. 237. 304 PLEAS IN CONTRACT. ATTORNEYS. application to Sir , one of the judges of the court of , upon affidavit duly made, statiim that such judgment had heen recovered and still remained unsatisfied [or, " to the amount of £ "] ; and that the defendant was in- debted to the plaintiff, and was within the jurisdiction of the said court; whereupon it was duly ordered by the said Sir , that all debts due, owing, or accruing from the defendant to the plaintiff should be attached to answer the said judgment debt, and that the defendant should appear before the said Sir to show cause why he should not pay the said A. B. the debt due from the defendant to the plaintiff, or so much thereof as would satisfy the said judgment debt ; and such order was duly served on the defendant [follow the terms of the order as to service'] ; and the defendant paid into court the amount due from him to the plaintiff, being the claim herein pleaded «to, in pursuance of the said order [or u and the defendant did not pay into court the amount due from him to the plaintiff, or any part thereof, and did not dispute the said debt "] ; whereupon it was duly ordered by the said Sir that ex- ecution should issue to levy the amount due from the defendant to the plaintiff [follow the terms of the order] ; and such last mentioned order was duly served on the defendant, and thereupon the defendant paid the said amount to the said A. B., being the amount of the plaintiff's claim herein pleaded to [or, " and such execution issued, and the said amount was levied thereunder being the amount of the plaintiff's claim herein pleaded to "]. 4. Plea of Foreign Attachment in the Lord Mayor's Court. Webb v. Hurrell, 4 C. B. 287. ATTAINDER. See post, "Felony." ATTORNEYS. Obs. — In an action of indebitatus assumpsit upon an attorney's bill of costs, the defence that the bill ought to have been, but was not, delivered signed a month before action, must be pleaded specially, post. Never indebted puts in issue that the plaintiff was an attorney, the retainer of the plaintiff by the defendant, that the services were in fact rendered, and the reasonableness of the charges; Jones v. Nanny, 1 M. & W. 333; Hill v. Allen, 2 M. & W. 283; ante, 282; and under that plea neither party is bound by the allocatur of the master in the taxation of the bill. Beck v. Cleaver, Dowl. 111. It may be shown on never indebted, that the plaintiff's work was utterly worthless by reason of his incompetency or neglect, &c. See Hill v. Allen, 2 M. & W. 284; Hill v. Feather stonehaugh, 7 Bing. 569; Shaw v. Archer, 9 Bing. 287; CV\ r. I,...t1i, 1 C. B. N. S. G17; Long v. Orsi. 18 C. B. G10; [2 Chitty Contr. (11th Am. ed.) 813 et seg. ;] or that he agreed to do the business for costs out of pocket, paying the amount into court: Jones v. Nanny, 1 M. &* W. 333; Jones v. Reade, 5 Dowl. 11. 216; or that the work was done by an unqualified person in plaintiffs name. Parker v. Riley, 3 M. & W. 230. Maintenance and champerty must be specially pleaded. Findon v. Parker, 11 M. & W. 675. See post." When- the defence is, that the business was done in preparing and enforcing an illegal agreement, there must be a special plea. Potts v. Sparrow, 1 Bing. N. C. 594. See Tabram v. Warren, 1 Tyr. & Gr. 153. In H. B. Roberts v. Barber, which was an action by an attorney for his bill of costs for bringing an action and preparing a deed of assignment at the defendant's request, it PLEAS IN CONTRACT. ATTORNEYS. 305 Ons. was proposed to show that the deed, which was an assignment of goods from one Sni'll to the defendant, was fraudulently antedated for the purpose of gaining a priority over a bon&Jide execution against Snell's goods, and that the action was an action of trespass brought by the defendant, on the strength of this deed, against the Bheriff for seizing under the execution against Snell. Pearson objected thai these facts were inadmissible under non assumpsit, but Tindal ('. J. held that as they went to show that plaintiff's services were entirely useless, they might lie given in evidence under that plea, and he left it to the jury to say whether the plaintiff was aware of the facts when lie prepared the deed, &c. : verdict for the defendant. M. S. C. P. London Sittings after T. T. 1841. In an action against an attorney for negligence, noti assumpsit would put in issue the fact of the plaintiff being an attorney, Aldis v. Gardner, 1 C. & K. 564, the promise, and the retainer. The denial of the negligence must be specially pleaded. See the law respecting attor- neys, ante, Obs. 55; [2 Chitty Contr. (11th Am. ed.) 810 et seq.;~\ Chit. Arch. Pr. Never indebted, ante, 284 ; Non assumpsit, ante, 284. 1. Plea to an Action on an Attorney 's Bill, that the Plaintiff had taken out no Certificate. (Ji) Commencement as ante, 9. (t)] That this action is brought for the recov- ery of fees, rewards, and disbursements for business, matters, and things done by the plaintiff for the defendant as an attorney [or " solicitor " ], in carry-, ing on certain causes, suits, and proceedings (k) in the superior courts at Westminster, without having previously obtained a stamped certificate then in force, contrary to the form of the statute in such case made and pro- vided. 2. Plea that the Bill tvas not delivered a Month before Action. (T) Commencement as ante, 9. (m)] That this action was commenced after the passing of an act of parliament made and passed in the session of parlia- (/<) By 6 & 7 Vict. c. 73, s. 26, " No per- (k) Or "suing," or "prosecuting," or son who as an attorney or solicitor shall sue, "defending," as the case may be. prosecute, defend, or carry on any action or (/) See tonus, Taylor v. Hodgson, 10 L. suit, or any proceedings in any of the courts J. Q. B. 310; Engleheart v. Moore, 4 D. & aforesaid, without having previously ob- L. 60 ; 15 M. & W. 548. This defence must tained a stamped certificate, which shall he be specially pleaded. Lane v. (ilenny, 7 Ad. then in force, shall be capable of maintain- & E. 83; Robinson v. Rowland, 6 Dowl. inj; any action or suit at law or in equity for 271 ; and it is an issuable plea; Wilkinson the recovery of any tee, reward, or disburse- v. Page, 1 D. & L. 913; 6 M. & G. 1012. merit, for or in respect of any business, mat- By 6 & 7 Vict. c. 73, s. 37, "No attorney ter, or thing done by him as an attorney or or solicitor, nor any executor, administrator, solicitor as aforesaid, whilst he shall have or assign of any attorney or solicitor, shall been without such certificate as last afore- commence or maintain any action or suit for said." The 23 & 24 Vict. c. 127, s. 26, im- the recovery of any fees, charges, or dis- poses a penalty for wrongfully acting as an bursements for any business done by such attorney or solicitor. This defence must be attorney or solicitor, until the expiration of specially pleaded. Hill v. Sydney, 7 Ad. & one month after such attorney or solicitor, E. 956. This is an issuable plea. Wilkin- or executor, administrator, or assign of Buch son v. Page, 1 D. & L. 913. If the certifi- attorney or solicitor, shall have delivered cate is not in force at the time the business unto the party to be charged therewith, or is done, the attorney is not entitled to tax sent bv the post to or left for him at his his costs. In re Duke of Brunswick and countmg-hoose, office of business, dwelling- Crowl, 4 Ex. 492. house, or last known place of abode, a bill (i) As to answering the account stated, of such fees, charges, and disbursements, and see ante, 294. which bill shall either be subscribed with the (m) As to answering the account stated, see ante, 294. vou n. 20 306 PLEAS IN CONTRACT. ATTORNEYS. ment holden in the sixth and seventh years of the reign of her majesty Queen Victoria, intituled. " An act for consolidating and amending several of the laws relating to attorneys and solicitors practising in England and Wales," and is maintained for the recovery of fees, charges, and disburse- ments * for business done by the plaintiff as an attorney [or " solicitor " ] for the defendant And the plaintiff did not, one calendar month before the com- mencement of this suit, deliver to the defendant, being the party to be charged therewith, or send by the post to, or leave for him at his (n) counting-house, office of business, dwelling-house, or last known place of abode, a bill of such charges, fees, and disbursements, subscribed with the proper hand of the plain- tiff either with his own name or with the name or style of any partnership of which he was at any time a member, or inclosed in or accompanied by any letter subscribed in like manner referring to any such bill as by the said stat- ute is required. Plea that the Plaintiff was never admitted, or that he teas not en- rolled, as an Attorney, (o) As in last form to the asterisk.'} — on account of prosecuting, carrying on, and defending by the plaintiff for the defendant of certain actions, suits, and proceedings in courts of law and in equity in the plaintiff's own name [or •• in the name of a certain other person " ] without being admitted [or " en- rolled"] (p) as required by the said statute, (q) proper hand of such attorney or solicitor ant has given a bill or note for the charges, (or, in case of partnership, by any of the partners, either with his own name or with the name or style of such partnership), or of the executor, administrator, or assign of such attorney or solicitor, to be inclosed in or accompanied by a letter subscribed in like manner, referring to such bill." The same section provides, " That it shall not in anv case be necessary in the first instance for such attorney or solicitor, or the exec- utor, &c. in proving a compliance with this act, to prove the contents of the bill he may the above plea would afford no defence to an action on the bill. Jeffrevs v. Evans, 14 M. & W. 210; S. C. 3 D. &L. 52. (n) Tate v. Hitchins, 7 C. B. 875. (o) This must be speciallv pleaded. Hill v. Sydney, 7 Ad. & E. 956. ' By 6 & 7 Vict. c. 73, s. 35, " In case any person shall, in his own name, or in the name of any other person, sue out any writ or process, or com- mence, prosecute, or defend any action or suit, or any proceedings in any court of law or equity, without being admitted and en- have delivered, sent, or left, but it shall be rolled as aforesaid, or being himself the sufficient to prove that a bill of fees, charges, or disbursements, subscribed in the manner aforesaid, or inclosed in or accompanied by such letter as aforesaid, was delivered, sent, or left in manner aforesaid ; but neverthe- less it shall be competent for the other party to show that the bill so delivered, sent, or bit. was not such a bill as constituted a bond fide, compliance with this act." It is plaintiff or defendant in such proceedings respectively, every such person shall and is hereby made incapable to maintain or pros- ecute any action or suit in any court of law or equity for any fee, reward, or disburse- ments, on account of prosecuting, carrying on, or defending any such action, suit, or proceeding, or otherwise in relation thereto." This section as well as the 26th section {ante, sufficient to deliver a signed bill to one of 320, note (a)), applies only to fees, rewards, al joint contractors. Mant v. Smith, 4 and disbursements for any business, matter, H. & N. ".24. As to the heading and con- or thing done as an attorney or solicitor in of the bill, Haigh v. Ouslv, 7 El. & some suit or proceeding in one of the courts Bl. 578 ; Pigot v. ('adman, 1 H. & N. 837 ; Pilgrim o. Uirschfeld, 3 N. R. 36. An at- torney may set off the amount of his costs, although he has not delivered a bill of such one month before the action. Brown v. Tibbits, 31 L. J. C. P. 206. If the defend- mentioned in the act, and not for business done which had no reference to such suits or proceedings. Richards v. Suffield, 2 Ex. 616 ; Greene t\ Reeve, 8 C. B. 88. (p) Humphrvs v. Harvey, 2 Dowl. 827; 1 Bing. N. C. 62." See Chit." Arch. This plea (q) The replication may be that the said action, &c. in any court of law or (see Moore fees, &c. were not, nor were any of them, v. Boulcott, 3 Dowl. 145) equity. See, also, for or on account of the prosecuting, &c. any Beck v. Penn, 7 C. & P. 397. I' LEAS IN CONTRACT. ATTORNEYS. 307 4. Replication, that the Plaintiff did deliver a Bill, (r) That he did, one calendar month before this suit, deliver to the defendant "or " send by the post to the defendant," or " leave for the defendant at his dwelling-house," as the case may be, following the words of the plea'], a bill in writing of the said charges, fees, and disbursements, subscribed with the proper hand of the plaintiff with his own name \_<>r u with the name and style of a partnership of which the plaintiff was a member," or " inclosed in a certain letter, (s) &c." as the case may be], as required by the said statute. 5. Plea of Maintenance to an Attorney's Bill, (t) Findon v. Parker, 11 M. & W. G75. 6. Plea to an Action against an Attorney for Negligence, frc. — Denial of the Negligence, (u) That he did use due and proper care, skill, and diligence in ["bringing, prosecuting, and conducting the said action," according to the terms of the promise laid in the declaration]. 7. Plea by an Attorney, Privilege of being sued in another Court. Ante, 273. is to be pleaded where the party never was admitted or enrolled as an attorney ; it will be observed that it adheres closely to the words of the statute ; a plea adding to this that the plaintiff was not authorized or qualified to practice as a solicitor, was held had for duplicity, as letting in matter be.- yond the clauses in the statute. Williams !■. Junes, 2 Q. B. 276. Indorsee against ac- ceptor of a bill. Plea, that the bill was given to drawer, an attorney, for work, &c. that he was not admitted, and that it was indorsed to plaintiff after due. Middleton v. Chambers, 1 M. & G. 97; S. C. 8 Dowl. 54'). (r) See forms, En^leheart v. Moore, 4 D. &L. 60; 15 M. & W. 548; Mant v. Smith, 4 H. & N. 324. A joinder of issue on the plea would put every material allegation in issue. (s) See Tavlor v. Hodgson, 3 D. & L. 115. (t) An agreement by an attorney that he shall have half the proceeds of a suit, and hold his client harmless as to costs, is illegal and void as amounting to maintenance. Re Masters, 4 Dowl. 18. And a contract whereby an attorney stipulates with a client that the attorney shall advance money to carry on a suit, and that, if successful, the attorney shall receive from the. client a sum in a proportion to the benefit to him from success over and above the legal charges, is also void, as amounting to maintenance. Earle v. Hopwood, 9 C. B. N. S. 566 ; and see O'Brien v. Lewis, 32 L. J. Ch. 569. So the purchase of the verdict by an attorney made pendente lite, and not for the purpose of enabling the client to carry on the suit, is void. Simpson v. Lamb, 7 El. & Bl. 84. But it appears that an assignment of the subject-matter in dispute to the attorney by the client, if made after the verdict, al- though before judgment, is not void, since it was not an absolute sale, but only security for past advances. Radcliffe v. Anderson, El., Bl. & El. 806; S. C. 28 L. J. Q. B. 32 ; 29 lb. 128. If there be an agreement for a gross sum, an attorney cannot recover a larger sum than would be allowed by the master on taxation. Pbilbv v. Ilazle, 8 C. B. N. S. 647; In re Ingle, 2"5 L. J. Ch. 169. [See Dickinson v. Burrell, L. R. 1 Eq.337.] («) Effect of non assumpsit, ante, 275. See other forms, Wright v. Newton, 3 Scott, 595. On this issue the plaintiff must prove the negligence. See ante, 60. It is not every mistake or misapprehension of an attorney that will make him liable to an action for negligence. The question, in such an ac- tion, is, whether the attorney has used rea- sonable skill and rare. See Shilcoek v. Pass- man. 6 c. & P. 289. See cases cited, ante, 57, Obs. 308 PLEAS IN CONTRACT. AWARDS. AUCTIONEER. The forms of pleas to actions against agents for not selling for the best price, not accounting, &c. may readily be applied to declarations against auc- tioneers. See ante, 295. AWARDS. Obs. — See pleas, 7 Wentw. 611; and for law, Russell on Awards, Watson on Awards, 2 Chit. Arch. Index in voc. ; ante, 64, Obs. Non assumpsit to the special counts on an award, forms, 1, 2, ante, 63, 65, would only put in issue the submission or agreement to refer. It would not deny the appointment of the umpire, the due enlargement of the time for making the award, that it was in fact made, or the non-performance of its provisions by the defendant; separate traverses of all or any of these allegations may be easily framed. Never indebted, pleaded to an indebitatus count; ante, 66, form 6; would in- clude a denial of all these allegations as matters of fact from which the prom- ise was to be implied; ante, 281. Where in fact an award was made, and the defence to a special count is that the arbitrator would not deliver it to the defendant within the prescribed time, the plea should not be a traverse of the making of the award, but a special form stating that defendant re- quested the arbitrator to deliver the award to him according to the submis- sion, but that he refused, &c. 1 Saund. 327 b, note (3). Where the dec- laration itself shows that the award is defective, the defendant should demur; or, if the declaration avoid showing the defect, but it appears on the face of the award itself, without showing extrinsic matter, the defendant might set out the award, leaving the plaintiff to demur. See Sim v. Edmands, [15 C. B. 240.] The plaintiff's non-performance of a condition precedent should be pleaded specially; see form, &c. Hanson v. Boothman, 13 East, 23; 2 Saund. 183-188; so must defendant's performance of the award. 1 Saund. 324; post, " Payments," &c; [2 Chitty Contr. (11th Am. ed.) 1182, 1183.] Cor- ruption or partiality or misconduct on the arbitrator's part cannot be pleaded. See Braddick v. Thompson, 8 East, 344; In re Cargey, 2 B. & C. 170; Swin- ford v. Burn, Gow's R. 5; 1 Saund. 327 b; Whitmore v. Smith, [5 II. & N. 824; 7 lb. 509.] Revocation of the arbitrator's power (when it affords a defence) should be pleaded specially. See form and law, Mills v. Bayley, [2 H. & C. 36 ; Marsh v. Bulteel, 5 B. & Aid. 507; Northampton Gas Co. v. Parnell, 15 C. B. 638.] But by 3 & 4 W. 4, c. 42, s. 39, the power of any arbitrator appointed by rule of court, judge's order, or order of nisi prius, or by submission containing an agreement that it shall be made a rule of court, shall not be revocable without the leave of the court or of a judge. 1. Plea, Denial of the Award. (#) [Declaration, ante, 63.] That the said did not make the said supposed award [or " umpirage "J of and concerning the said matters in difference, as alleged, (y) (x) Under this plea the defendant might worth v. Harrison, 4 M. & W. 434 ; Perry v. show that the award made by the arbitrator Mitchell, 12 M. & W. 799; S. C. 2 D. & L. was not made pursuant to the submission to 458; Armitage v. Coates, 4 Ex. 641 ; and refer. Dresser v. Stansfield, 15 L. J. Ex. see Gisborne v. Hart, 5 M. & W. 58, per 274; 14 M. & W. 822. Several pleas may Lord Abinger. Such pleas, however, are only be found in the reports, showing specially argumentative denials of making the award. that the award is bad by reason of facts not Adcock v. Wood, 6 Ex. 814 ; and see Rob- disclosed in the declaration ; as that the erts v. Eberhardt, 3 C. B. N. S. 482. arbitrator neglected to award on some of (y) The production of the award and rule the matters brought before him. Charle- of court will prove this i-sue on the part of ton v. Spencer, 2 Q. B. 695 ; King v. Bowen, the plaintiff in the first instance, subject to the 8 M. & W. 625; Dresser v. Stansfield, vbi proof being rebutted by the defendant. Gis- sup. ; or that the award is not final. Duck- borne v. Hart. See last note. PLEAS IN CONTRACT. AWARDS. 309 2. Plea of Arbitrament and Award (without Performance), to a Declaration upon a Contract to recover General Damages, (z) That after the accruing of the causes of action in the declaration mentioned, certain differences arose and were depending respecting the same between the plaintiff and the defendant, and thereupon they mutually (") referred the said matters in difference to the award, order, and arbitrament of W. II. and T. F., and in case they should not agree, then to the umpirage of T. P., and agreed that the decision of the said arbitrators or umpire should be final, so as the said award or umpirage should be made in writing ready to be delivered to the said parties, or such of them as should desire the same, on or before the day of then next ; and the said W. H. and T. F. having respect- ively taken upon themselves the burden of the said arbitration, and not having agreed upon the matters so referred to them, the said T. P. thereupon in due time took upon himself the burden of the said arbitration and umpirage, and duly made and published his award and umpirage in writing, of and concern- ing the premises, ready to be delivered to the said parties, and did thereby award and declare of and concerning the said matters, that the defendant (z) See, in general, Rol. Ab. Arbitra- ment, V. ; Com. Dig. Accord, A. 1 ; Bac. Abr. Arbitrament; [2 Chitty Contr. (11th Am. ed.) 1179 et seq. ;] Russel on Arbitra- tion ; Allen v. Milner, 2 Cr. & J. 47, and form there. Gascovne v. Edwards, 1 Y. & J. 19 ; Whitehead v. Tattersall, 1 Ad. & E. 491. These cases establish that it is no plea to an action to recover a del)t, that the par- ties referred the claim to arbitration, and that the arbitrator awarded a certain sum to be paid in money, unless payment or a tender of that sum be alleged ; but that in an ac- tion to recover general unliquidated damages on a special contract, arbitrament and award, without performance, may be pleaded to a count on the original contract. And see Edwards v. Baugh, 11 M. & W. 641, as to this plea, puis darrein continuance. Stow v. Bloxam, 2 Esp. 804. A plea of a pending arbitration cannot be pleaded in bar to the original cause of action. Harris v. Rey- nolds, 7 Q. B. 71; [2 Chitty Contr. (1 1th Am. ed.) 1186; Smith v. Boston, Concord & Montreal K. R. 36 N. H. 458.] But an action will lie for the breach of an agree- ment to refer. Livingstone v. Ralli, 5 El. & Bl. 132. And by the C. L. P. Act, 1854, 8. 11, if there is an agreement to refer, and an action is brought, the court, or a judge, may order a stay of proceedings. See, as to this section, Peunell v. AValker, 18 C. B. 651 ; Daunt v. Lazard, 27 L. J. Ex. 399 ; Hirsch v. Imthum, lb. C. P. 254; Wiekham v. Harding, 28 L. J. Ex. 215; Roper v. Len- don.Ib. Q. B. 260; Blythe t\ Lafone, lb. Q B. 164. It is now decided that where a con- dition precedent to the bringing of an ac- tion is created, the remedy which is afforded ay the courts cannot be resorted to until the condition precedent has been performed ; and therefore if parties agree to refer the amount of damages, or any matter of that kind, they do not oust the courts of their jurisdic- tion, and an action will therefore lie for breach of such agreement. Averv v. Scott, 5 H. L. Cas. 81 1 ; llorton v. Saver, [4 H. & N. 643 ;] Braunstein v. The Accidental Death In- surance Co. ]1 B. & S. 782 ;] Tredwen v. Hol- man, [I H. & C. 72 ;] Westwood v. The Sec- retary for India, 1 N. R. 262; [Elliott v Royal Exchange Assurance Co. L. R. 2 Ex 237 ; Hemans v. Picciotto, 1 C. B. N. S. 646 Lowndes v. Stamford, 12 Q. B. 425 ; Lau man v. Young, 31 Penn. St. 306; Snod grass v. Gavit, 28 Penn. St. 224; Smith v Boston, Concord & Montreal R. R. 36 N. H 458, 487; 1 Dan. Ch. Pr. (4th Am. ed.) 670, 671, and cases in notes ; To bey v. Bristol, 3 Story, 800. In Cobb v. New England Mut. Marine Ins. Co. 6 Gray. 192, 204, Thomas J. said : " The invalidity of the condition requiring the insured to submit the question of loss to arbitration seemed to have been settled, and upon grounds of public policy, which the contract of the parties could not control. Kill v. Ilollister, 1 Wils. 129 ; Thomas v. Charnock, 8 T. R. 139; Gold- stone v. Osborn. 2 C. & P. 550 ; Robinson v. George's Ins. Co. 17 Maine, 131 ; Gray v. Wilson, 4 Watts, 39 ; Arnould on Ins. 1249 ; 2 Story Eq. § 1457. The recent cases, how- ever, of Scott v. Avery, 8 Ex. 487, and 5 H. L. Cas. 811 ; Livingston t?. Ralli, 5 El. & Bl. 132; and Russell v. Pellegrini, 6 El. & Bl. 1020, may possibly lead to some revision and qualification of the doctrine as heretofore understood." See Brown v. Overbury, 11 Ex. 715; Scott v. Liverpool, 3 De G. & J. 334. Eorm of plea, see Scott v. Avery, 8 Ex. 487.] (a) As to the averments showing the sub- mission and award, see ante, 63-65, forms 1 and 2. [McCreary v. Taggart, 2 S. C. 418.] 310 PLEAS IN CONTRACT. BAIL BONDS. should pay the plaintiff the sum of £ on the day of then next ""and the defendant, on the said day last aforesaid, paid the said sum of £ in performance of this award]. 3. Replication thereto. [The replication via;/ be, if the reference to arbitration be denied, "that the plaintiff and defendant did not submit themselves to, or agree to refer, or refer the said matters in difference to the award, order, or arbitrament of the said W. H. and T. F., or in case they should not agree, then to the umpirage of the said T. P. in manner and form as alleged ;" or, if the award be denied, " that the said did not make the said supposed award," fyc. ; or the plain- tiff may reply a revocation of the submission (see ante, Obs. 308), or new assign that the matters in dispute mentioned in the declaration are other than and dif- ferent to the matters referred.^ (b) BAIL BONDS, (e) See "Bail Bond," Obs. ante, 67. 1. Non est Factum. Ante, 286. (d) 2. That there was no Writ in the Original Action, (e) That no writ of capias whereon E. F. could or might be arrested or holden to bail, was issued out of the said court in the said action in the said condition mentioned, before the making of the said bond. 3. Plea that the Bond was not assigned by the Sheriff. (/) Says that the said bond was not duly assigned by the sheriff to the plain- tiff according to the form of the statute in such case made and provided. 4. Plea that Bail was put in and perfected. (#) That the said E. F. did cause special bail to be put in for him to the said (h) A joinder of issue would deny every in the declaration mentioned was issued. material alligation. Where the defence is, that the writ is void, (c) The bail may, of course, plead non est it would perhaps be judicious to point out in factum if they deny their execution of the the plea the particular objection to or defect bond. Illegality of the bond at common law in the writ, admitting that it issued. It has or by statute should be pleaded specially, been usual to plead that no writ whereon the See requisites of the bond under 23 II. 6, party could be arrested or holden to bail was c. 9, s. 7, &c. Tidd, 9th ed. 233; Chit. Pr. ever issued in the action, &c. See Gurnev Index, " Bail." How far bail liable. Ih. v. Hopkinson, 1 Cr., M. & R. 587 ; Finch v. Plea that a bond was given for ease and Cocken, 2 Cr., M. & 11. 196. Bail cannot favor. 3 Chit. PI. 7th ed. 193. Bail cannot plead the principal was not arrested. Tay- plead matters merely affording ground for lor v. Clow, 1 B. & Ad. 223 ; Bates v. Pil- equitablc relief in reference to the practice ling, 2 Cr. & M. 375, per Bayley J. of the court, but should apply to the court (f) See form in Phillips v. Barlow, 6 C. by motion. Ball v. Swan, 1 B. & Aid. 393 ; & P. 781 ; general form, Dawes v. Papworth, Hinton v. Acraman, 15 L. J. C. P. 52. Willes R. 408 ; 2 Saund. 61, note. In (d) Non est factum denies only the making Phillips v. Barlow, it was decided by of the bond. Ante, Obs. 285. Vaughan J. that it suffices that the sheriff (. Roberts, 1 Myl. & K. 4; Casborne v. Banham, 6 Sim. 317. Section 233, as varied by 17 & 18 Vict. c. 119, s. 124. "If the bankrupt shall not (if he were within the United Kingdom at the date of the adjudication) within two calendar months after the advertisement of the bankruptcy in the London Gazette, or (if he were in any other part of Europe at the date of the adjudication) within three months after such advertisement, or (if he were elsewhere at the date of the adjudication) within twelve months after such advertisement, have commenced an action, suit, or other proceeding to dis- pute or annul the fiat or the petition for adjudication, and shall not have prosecuted the same with due diligence and with effect, the Gazette contain- ing such advertisement shall be conclusive evidence in all cases as against (/) When a bailor mortgages a chattel right of the bailee to set up the jus tertii and bailed, and the mortgagee has a right to form, see Thorne v. Tilbury, 3 H. & N. 534; demand possession from the bailee, and does Sheridan v. The IV \v Quay Co. 4 C. B. N. S. demand it, the bailee may refuse to give the 618 ; Anderson v. The Midland Ky. Co. 30 chattel to the bailor. European & Aus- L. J. Q. B. 94. [Bight of pawnee to re- tralian Mail Co. v. The Boyal Mail Steam pledge. Plea by second pawnee. Donald v. Packet Co. 30 L. J. C. P. 247. As to the Sackling, L. B."l Q. B. 585.] PLEAS IN CONTRACT. BANKRUPTCY. 313 Ob8. such bankrupt, and in all actions at law or suits in equity brought by the assignees for any debt or demand for which such bankrupt might have sus- tained any action or suit had he not been adjudged bankrupt, that such per- son so adjudged bankrupt became a bankrupl before the date and suing forth of such fiat, or before the dale and liling of the petition for adjudication, and that such fiat was sued forth, or such petition filed, on the day on which the same is stated in the Gazette to bear date." A copy of the Gazette is suili- cient evidence of any matter contained therein. S. 240. Section 23-1. " In any action, other than an action brought by the assignees for any debt or demand for which the bankrupt might have sustained an action had he not been adjudged bankrupt, and whether at the suit of or against the assignees, or against any person acting under the warrant of the court, for anything done under such warrant, no proof shall be required, at the trial, of the petitioning creditor's debt, or of the trading or act of bank- ruptcy respectively, unless the other party in such action shall, — if defend- ant, at or before pleading, and if plaintiff, before issue joined, — give notice in writing to such assignees or other person that he intends to dispute some and which of such matters; and in case such notice shall have been given, if such assignees or other person shall prove the matter so disputed, or the other party admit the same, the judge before whom the cause shall be tried may (if he think fit) grant a certificate of such proof or admission; and such assignees or other person shall be entitled to the costs occasioned by such notice; and such costs shall, if such assignees or other person shall obtain a verdict, be added to the costs, and if the other party shall obtain a verdict, shall be deducted from the costs which such other party would otherwise be entitled to receive from such assignees or other person." 1. Denial that Plaintiffs are Assignees, (w) _ ' * , ' That the plaintiffs were not nor are assignees as A. B. and another, suing V ,, , as assignees, &c. ) 2. Notice to be given with the above Plea, (n) In the . A. B. and G. H. suing as assignees of E. F. an alleged bankrupt, plaintiffs, and C. D., defendant. (m) Porter v. Walker, 1 M. & G. 686. son v. Liversedge, 11 M. & W. 517. Under See form, &c. Scott v. Thomas, 6 C. & P. 611. this plea defendant may, in actions of con- [What is evidence of title of assignees, Kelly tract, show the non-joinder of another as- v. Morray, L. R. 1 C. P. 667.] In Inglis v. signee. Jones v. Smith, 1 Ex. 831. Spence, 1 Cr., M. & R. 432, it was decided, (n) See ante, Obs. and last note. This that in an action by the assignees of a bank- notice must be specific; notice of intention rupt, admissions of their title as assignees by to dispute " the bankruptcy " is insufficient, the defendant, in letters addressed to the so- Trimley v. Unwin, 6 B. & C. 5.37. It' the licitor to the commission and to one of the notice be to dispute " the act of bankruptcy " assignees, are prima facie evidence of title, only, and the plaintiff succeed at the trial in so as to dispense with strict proof, though proving an act of bankruptcy, then a trad- there is a plea denying the title of the plain- ing, and a petitioning creditor's debt, co-ex- tiffs as assignees, and notice to dispute has intent with that act, but no others, are admit- been given. See ante, Obs. Under this plea ted. Porter v. Walker, 1 M. & G. 686. If and the notice (which must in all cases be the notice to dispute be not given in due delivered with the plea), the plea alone being rime, the party should obtain a judge's order insufficient, Moon v. Raphael, 7 C. & P. for leave to withdraw his plea, &c. pleading 115, the trading, the petitioning creditor's de novo, with such notice. See De Charme debt, the act of bankruptcy, and the validity v. Lane, 2 Camp. 324; Radmore v. Gould, 1 of the fiat, may (all or any of them) be put Wightw. 80; Poole v. Bell, 1 Stark. It. 328. in issue, Butler v. Hobson, 4 Bing. N. C. The notice seems to be requisite, although 290; and the same holds in trover; Buck- the assignees sue or are sued with another ton v. Frost, 8 Ad. & E. 845; and eject- person. Gilman v. Cousins, 2 Stark. R. 282 ; ment, brought by assignees. Doe d. John- Smith v. Nicholson, 2 Stark. Ev. 3d cd. 314 PLEAS EN T CONTRACT. BANKRUPTCY. Take notice that the above-named defendant intends, on the trial of this cause, to dispute the trading, petitioning creditor's debt, and act of bankruptcy [or, if one only of such matters be disputed, name it according to the plea~\ of E. F. above named. Dated [#c] , defendant's attorney [or " agent "]. To A. B. and G. H., the above-named plaintiffs, and to , their attorney [or "agent"], (o) 3. Plea to an Action by Assignees for Money had and received to their Use, that the Defendant paid over the Money to bond fide Creditors of the Bankrupt by his Command, without Notice of any previous Act of Bankruptcy, (p) Commencement, ante, 20, 21.] That the money herein pleaded to was re- ceived by the defendant after the said E. F. committed an act of bankruptcy, and before the filing of the petition for adjudication of bankruptcy against the said E. F. ; and that while he the defendant held the said money for the use of the said E. F., and before the filing of such petition, he the defendant, on behalf of the said E. F., really and bond fide, and not by way of fraudulent preference, paid over the sum of money herein pleaded to to , then being a creditor of the said E. F., to the amount of the same. And the defendant says that he had not at the time of such payment notice of any prior act of bankruptcy by the said E. F. committed. notwithstanding any prior act of bankruptcy by such bankrupt committed, provided the person so dealing with or paving to, or being paid by such bankrupt, or at whose suit, or on whose account such execution or attach- ment shall have issued, had not at the time of such payment, conveyance, contract, deal- ing, or transaction, or at the time of so ex- ecuting or levying such execution or attach- ment, or at the time of making any sale thereunder, notice of any prior act of bank- ruptcy by him committed." Proviso that nothing therein contained shall give validity to payments, &c. by way of fraudulent pref- erence. In Kynaston v. Crouch, 14 M. & W. 266, the defendant, as foreman of a bank- rupt, carried on his business after a secret act of bankruptcy, and in so doing received money due to the bankrupt and made bond fide payments for him ; in an action for the former money by the assignees, k was held that he could not protect himself under the ordinary pleas of non assumpsit and set-off; and see Pennell v. Aston, 14 M. & W. 415. See next form. As to answering an account stated, see ante, 294. As to what is sufficient notice of an act of bankruptcy, and gener- ally as to notice, see Christie v. Winnington, 8 Ex. 287 ; Brewin v. Short, 24 L. J. Q. B. 297 ; Pike v. Stevens, 12 Q. B. 465 ; Hope v. Meek, 10 Ex. 829 ; Brewin v. Briscoe, 28 L. J. Q. B. 329 ; Broadbent v. Varley, 12 C. B. N. S. 214 ; Edwards v. Gabriel, 30 L. J. Ex. 245 ; Edwards v. Scarsbrook, 32 L. J. Q. B. 45 ; Young v. Roebuck, 32 L. J. Ex. 260. And see Bramwell v. Eglinton, 4 N. R. 56, Q. B. note ; or are not described as assignees on the record ; Simmons v. Knight, 3 Camp. 251 ; but it is not necessary on an issue di- rected by the court. Lott v. Melville, 3 M. & G. 40"; and ante, 126, note (t). If the assignees are strangers to the record and their title comes only incidentally in ques- tion, it must be regularly proved, though no notice has been given by the opposite party. Doe v. Liston, 4 Taunt. 741. Unless notice be given to dispute the petitioning creditor's debt, the debt upon the proceedings must be taken to be admitted for all purposes. Her- naman v. Barber, 14 C. B. 583. (o) A like notice, to be given on the part of a plaintiff, to be given before issue joined can be readily framed from the above. (p) The 12 & 13 Vict. c. 106, s. 133, en- acts, " that all payments really and bond fide made by any bankrupt, or by any person on his behalf before date .of the fiat or the filing a petition for adjudication of bankruptcy, to any creditor of such bankrupt, and all pay- ments really and bond fide made to any bank- rupt before the date of the fiat or the filing of such petition, and all contracts, dealings, and transactions by and with any bankrupt really and bond fide made and entered into before the date of the fiat or the filing of such petition, and all executions and attach- ments against the lands and tenements of any bankrupt bond fide executed by seizure, and all executions and attachments against the goods and chattels of any bankrupt bond fide executed and levied by seizure and sale before the date of the fiat or the filin'j: of such petition, shall be deemed to he valid, PLEAS IN CONTRACT. BANKRUPTCY. 315 4. Plea of Payment to a Bankrupt after, but without Notice of an Act of Bankruptcy, and before Petition filed. (q) Commencement, ante, 20.] That after the accruing of the plaintiff's claim herein pleaded to, and after the said E. F. committed an act of bankruptcy, and before the filing of the petition for adjudication of bankruptcy under which the plaintiffs now sue as such assignees as aforesaid, he the defendant really and bond fide, and not by way of fraudulent preference, paid to the said E. F., who then accepted and received from the defendant divers sums of money to the amount of the claim herein pleaded to, in full satisfaction and discharge of the said claim. And the defendant says that he had not at the time of such payment notice of any prior act of bankruptcy by the said E. F. committed, (r) 5. Plea to an Action by Assignees, that the Bankrupt assigned the Debt to a Third Person before Bankruptcy, (s) That before the said C. (the bankrupt) became bankrupt, by a deed (t) made the day of , between the said C. of the one part, and one D. of the other part, after reciting that the said D. had lent and advanced to the said C. £ , and that [set out any further recitals that may be necessary to explain the transaction'] the said C, before he became bankrupt, on [#c], in pursuance of the said agreement, and for the considerations aforesaid, and of 10s. to the said C. paid by the said D., did bargain, sell, assign, transfer, and set over unto the said D. and Co., their executors [#c], all and every [fyc ; set out the operative part of the deed'], and all right, title, and interest, property, benefit, claim, and demand whatsoever at law or in equity of him the said C, of, in, and to the same premises, and every part thereof, to have, hold, recover, receive, take, and enjoy \8fc.~\, and all and singular other the remedies thereby assigned or intended so to be unto the said D., his executors [#y the certificate or order of dis- charge, see Bankrupt Law Consolidation Act, 1849, s. 165 and ss. 172- 182; Temple v. Pullcn, 8 Ex. 389; Young v. Winter, 16 C. 13. 401 ; [Metcalfe v. Hanson, L. R. 1 H. L. 242; Muge V. Rowan, L. R. 3 Ex. 85 ; Betteley v. Stainsby, L. R. 2 C. P. 568;] Warburg v. Tucker, 5 El. & Bl. 384; El., Bl. & El. 914; Ex parte Barwis, 25 L. J. Bank. 10 ; Ex parte Bateman, 15 L. J. Bank. 19 ; Maples v. Pepper, 18 C. B. 177; Boyd v. Robins, 4 C. B. N. S. 749; Parker v. Ince, 4 H. & N. 53; White v. Corbett, 1 El. & El. 692; Thomas i\ Hopkins, 7 C. B. N. S. 711; Adkins v. Farrington, 5 II. & N. 586; Ex parte Boddam, 29 L. J. Bank. 20; Elder v. Beaumont, 8 El. & Bl. 353; Betteley v. Stainsby, 31 L. J. C. P. 337; Re Moor, 3 N. R. 546, L. C; Bankruptcy Act, 1861, ss. 149-154; Deacon's Bankruptcy by Langley, and Shelford on Bankruptcy ; [Rev. St. U. S. tit. LXI. c. 4, § 5067 et seq. c. 5, § 5119, p. 993. Under the United States bankrupt law, no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy ; but the debt may be proved, and the dividend thereon shall be a payment on account of such debt. Rev. St. U. S. tit. LXI. c. 5, § 5117, p. 993; Morse v. Hutchins, 102 Mass. 439; Cronan v. Cutting, 104 Mass. 245; In re Kimball, 6 Blatchf. 292; In re Seymour, 1 Ben. 348; In re Kimball, 2 Ben. 554.] A public officer of a company can- not plead his own bankruptcy in bar of an action in which he is sued as representative of the company. Steward v. Dunn, 11 M. & W. 63. The defendant cannot give his bankruptcy in evidence under the general issue. Gowland v. Warren, 1 Camp. 363; Stedman v. Martinnant, 12 East, 664 ; R. G. T. T. 1853, ante, 276 ; [1 Chitty PI. 506.] The plaintiff need not re- ply specially to a plea of the defendant's bankruptcy pleaded generally under the statute; under a joinder of issue he may show any special matter proving the invalidity of the certificate or order of discharge, or defeating or avoid- ing its operation. Wilson v. Kemp, 2 M. & S. 549; Hughes v. Morley, 1 B. & Aid. 22 ; Horn v. Ion, 4 B. & Ad. 78. See Bankruptcy Act, 1849, s. 201, repealed by Bankruptcy Act, 1861, s. 159 of the latter act being substituted. [The provisions for testing the validity of a discharge in bankruptcy under the United States bankrupt law, are exclusive; the validity of such discharge cannot be impeached in a suit in a federal or a state court, on a debt prov- able in proceedings against the defendant under that law, and of a nature to be barred by a valid discharge in those proceedings. Way v. Howe, 108 Mass. 502; Burpee v. Sparhawk, 108 Mass. 112, 113; Corey v. Ripley, 57 Maine, 69; Ocean National Bank v. Olcott, 46 N. Y. 12; Rev. Sts. U. S. tit. LXI. c. 5, § 5119, p. 993; Simons v. Slocum, 3 Cranch, 300, 308; Crockery. Marine National Bank, 101 Mass. 240; Payne v. Able, 7 Bush, 344 ; but see Beardsley v. Hall, 36 Conn. 270; Batchelder v. Low, 43 Vt. 662.] To support the plea of bankruptcy, the defendant has only to produce his certificate or order of discharge duly allowed. Taylor v. Welsford, Moody & M. 503. See Bankruptcy Act, 1849, s. 205, and Bankruptcy Act, 1861, s. 161, supra. [Under the United States bankrupt law, the certificate is made conclusive evidence, in favor of such bankrupt, of the fact and the regularity of his discharge. Rev. Sts. U. S. tit. LXI. c. 5, § 51 19, p. 993.] The plea puts merely the certificate or order of discharge in issue. The order of discharge does not release or discharge any person who was a partner with the bankrupt at the time of the bankruptcy, or was then jointly bound or had made any joint contract with him. Bankruptcy Act, 1861, s. 163. [Corre- sponding to this, the United States bankrupt act provides that the discharge shall not release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise. Rev. Sts. U. S. tit. LXI. c. 5, § 5118, p. 993.] In the case of 318 PLEAS IX CONTRACT. BANKRUPTCY. Obs. the bankruptcy and certificate or order of discharge of one of several debtors, he need not be made a defendant. Form 5, ante, 271, note (n). If joined, and he plead his certificate or order of discharge, the plaintiff may reply; see lb.; or may enter a nolle prosequi as to him, and proceed against the other debtors. Noke o. Ingham, 1 Wils. 89; Moravia v. Hunter, 2 M. & Sel. 444; 2 Rose, 264, S. C. ; Grant v. Jackson, Peake R. 203. A proof or claim by a creditor under the bankruptcy, operates of itself as a relinquishment or dis- continuance of any action previously brought against the bankrupt. Bank- rupt Act. 184H, s. 182. [See Rev. Sts. U. S. tit. LXI. c. 5, § 5105, p. 990; Bennett r. Goldthwait. 109 Mass. 494.] And when a creditor has been al- lowed to prove, it seems that the bankrupt is not entitled to have an entry or suggestion of the election put on the record in which the action is brought. Kemp v. Potter, 6 Taunt. 549; Sainter v. Fergusson, 8 C. B. 619. The proof of the debt cannot be pleaded in bar of the action ; but the bankrupt may applv to the court in which the action is, to stay proceedings. Harley r. Greenwood, 5 B. & Aid. 95; Woodward v. Meredith, 2 D. & L. 135. Proof for part of a judgment debt is the same as proof for the whole. Geikie v. Hewson, 4 M. & G. 618; Sainter v. Fergusson and Woodward v. Mere- dith, ubi sup. When the bankrupt is sued jointly with any other person, the relinquishing of the action against the bankrupt does not affect it against such other person. Bankrupt Act, 1849, s. 182. 1. Plea of Defendant's Bankruptcy and Order of Discharge before Action. That he became bankrupt within the meaning of the statutes in force con- cerning bankrupts, and that the causes of action (x) in the declaration men- tioned accrued before the defendant so became bankrupt, (y) [See supra, Obs.] 2. Plea of Defendant's Bankruptcy and Discharge after Action brought, (z) That after the accruing of the alleged causes of action, the defendant being liable to become and be adjudged bankrupt within the meaning of the statutes in force concerning bankrupts, such proceedings were had and prosecuted in the court of bankruptcy for the district [or in the county court of , holden at ], being the court having jurisdiction in that behalf, according to the said statutes, (a) that the defendant became and was by the said court duly adjudged bankrupt under and according to the provisions of the said statutes, and the said court afterwards and after the commencement of this suit (b) made and granted to the defendant an order of discharge pursuant to the said statutes, which said order has taken and remains in effect. (x) This form must be adhered to. Charl- ante, 316, 317; but the order of discharge ton v. King, 4 T. R. 155 ; Sheen v. Garrett, after it has taken effect, discharges the bank- 6 Bin^-. 688, 689 ; Wheatley v. Williams, 1 rupt from all debts provable under the bank- M. & W. 537, ]>er Parke B. ruptcy, and should be pleaded as above, or (y) Xon assumpsit might also be pleaded ; puis darrein continuance, according as it takes but this is not advisable whttre the certifi- effect before or after plea pleaded. See Todd cate affords a clear defence, and there is no v. Maxfield, 6 B. & C. 105; [1 Chitty PI. 689, ground for disputing the debt, as defendant, 690.] if he failed, would be liable to costs of prov- (a) See Bankruptcy Act, 1861, s. 88. And ing it. If the plaintiff is proceeding for a as to the jurisdiction of the county courts, cause of action accruing after the bank- see ss. 3, 4, 94, 98, 99, 101, and 109; In re ruptcy, he must new assign. See form, Harrison, 312 L. J. Ex. 159 ; In re Coombs, 32 Elder v. Beaumont, 27 L. J. Q. B. 25. L. J. Q. B. 65. (z) The preceding statutable form of plea (h) If pleaded pttis darrein continuance, is only applicable when the action is com- say, " after the last pleading in this action." menced after the bankrupt has obtained his See " Puis darrein continuance," post. order of discharge ; see s. 161, and Obs. PLEAS IN CONTRACT. BANKRUPTCY. 319 3. Plea of the Defendant's Bankruptcy and Certificate under the Bankrupt Law Consolidation Act, 1849. Betteley v. Stainsby, [12 C. B. N. S. 477.] 4. Pleas under the same Act, setting out the Proceedings. Warburg v. Tucker, 5 El. & Bl. 384 ; Young v. Winter, 16 C. B. 404 ; Elder v. Beaumont, 27 L. J. Q. B. 25. 5. Pleas of Defendant's Discharge under Foreign Bankruptcy Pro- ceedings, (c) Under proceedings in the United States. Potter v. Brown, 5 East, 124. Under a Scotch sequestration. Sidaway v. Hay, 3 B. & C. 12. Under the insolvent law of the Cape of Good Hope. Frith v. Wollaston, 7 Ex. 194. Under the insolvent law of Victoria. Bartley v. Hodges, 1 B. & S. 375. 6. Plea under ss. 164 and 166 of the Bankruptcy Act, 1861. (d) That after the 11th day of October, a. d. 1861, he, the defendant, became bankrupt within the meaning of the statutes in force concerning bankrupts and the alleged cause of action accrued pending proceedings in bankruptcy. 7. Similar Special Pleas under the Bankrupt Law Consolidation Act, 1849. Under s. 202 (repealed). Goldsmid v. Hampton, 5 C. B. N. S. 94. Under s. 204 (repealed). Kidson v. Turner, 3 H. & N. 581. 8. Plea of the Plaintiff's Bankruptcy before Action, (e) That after the accruing of the alleged .causes of action, and before this suit, the plaintiff, being liable to become and be adjudged bankrupt within (c) The general rule applicable to such a Hammond, 40 Maine, 204 ; Peck v. Hibbard, case is, that if the debt was contracted in the 26 Vt. 698.] country where the discharge has been ob- (d) Under the corresponding sections tained, the discharge will be a discharge in (204 and 202) of the bankrupt law consoli- every other country, but a discharge of a dation act, 1849, which are repealed, the gen- contract by the law of a place where the eral issue might be pleaded, and the act and contract was not made or to be performed, special matters given in evidence. A?ite, Obs. will not be a discharge of it in any other 316, 317 ; Weeks v. Argent, 16 M. & W. country. Accordingly, a discharge by for- 817 ; Goldsmid v. Hampton, 5 C. B. N. S. eiirn law is no bar to an action in England 94. The above sections are not retrospec- for an English debt. Smith if. Buchanan, 1 tive. Reed v. Wiggins, 12 C. B. N. S. 220. East, 6; Phillips v. Allan, 1 B. & C. 477; (e) [See Hodgson v. Sidney, L. R. 1 Ex. Lewis v. Owen, 4 B. & Aid. 654; Bartley v. 313.] The bankruptcy of a sole plaintiff is Eodges, ubi supra; Story'B Conflict of Laws, an issuable plea; Willis v. Hallett, 5 Bing. s. 342 ; Deacon's Bankruptcy, by Langley, N. C. 465 ; but not the bankruptcy of one of 794 et seq. [This subject was very thor- two plaintiffs. Staples v. Holdsworth, 4 oughly discussed, by the counsel and by Bing. N. C. 144; S. C. 6 Dowl. 196. If Shaw C. J. in May v. Breed, 7 Cush. 15 ; the bankruptcy arose after action brought, Shepherd v. Breed, 7 Cush. 44 ; Marsh v. but before plea pleaded, the plea should be Putnam, 3 Gray, 551. See Blanchard v. so pleaded; if after plea pleaded, the plea Russell, 13 Mass. 1 ; Pitkin v. Thompson, 13 must lie puis darrein continuance. The right Pick. 64 ; Verry v. Mcllenrv, 29 Maine, 206 ; to plead such pleas is, however, subject to 2 Chitty Conti-. (11th Am! ed.) 1301, 1302; the provisions of the 142d section of the C. M'Milkin v. M'Neill, 4 Wheat. 213 ; Long v. L. P. Act, 1852, by which it is enacted that 320 PLEAS IN CONTRACT. BANKRUPTCY. the meaning of the statutes in force concerning bankrupts, became and was duly adjudged bankrupt under and according to the provisions in that behalf of the said statutes, and thereupon and before this suit assignees of the estate and effects of the plaintiff, as such bankrupt, were duly appointed and chosen under and according to the said statutes, whereupon the alleged causes of action became and were, before and at the time of the commencement of this suit, vested in such assignees as aforesaid, as part of the estate and effects of the plaintiff, as such bankrupt as aforesaid. 9. A like Plea under the Bankrupt Law, Consolidation Act, 1849. Houghton v. Kcenig, 18 C. B. 235. 10. Plea to an Action by Husband and Wife, of the Husband's Bank- ruptcy after the Marriage. Richbell v. Alexander, 10 C. B. N. S. 324. 11. Plea of a Deed under the 192c? Section of the Bankruptcy Act, 1861. Obs. — The bankruptcy act, 1861, enacts, — S. 192. " Every deed or instrument made or entered into between a debtor and his creditor, or any of them, or a trustee on their behalf, relating to the debts or liabilities of the debtor and his release therefrom, or the distribution, in- spection, management, and winding up of his estate, or any of sueh matters, shall be as valid and effectual and binding on all the creditors of such debtor, as if they were parties to and had duly executed the same, provided the fol- lowing conditions be observed, that is to say, — 1. A majority in number representing three fourths in value of the cred- itors of such debtor, whose debts shall respectively amount to ten pounds and upwards, shall, before or after the execution thereof by the debtor in writ- ing, assent to or approve of such deed or instrument: 2. if a trustee or trustees be appointed by such deed or instrument, such trustee or trustees shall execute the same : 3. The execution of such deed or instrument by the debtor shall be at- tested by an attorney or solicitor: 4. Within twenty-eight days from the day of the execution of such deed or instrument by the debtor, the same shall be produced and left (having been first duly stamped) at the office of the chief registrar, for the purpose of being registered : 5. Together with such deed or instrument there shall be delivered to the chief registrar an affidavit by the debtor, or some person able to depose thereto, or a certificate by the trustee or trustees, that a majority in number representing three fourths in value of the creditors of the debtor, whose debts amount to ten pounds or upwards, have in writing assented to or approved of such deed or instrument, and also stating the amount in value of the prop- erty and credits of the debtor comprised in such deed : 6. Such deed or instrument shall, before registration, bear such ordinary and ad valorem stamp duties as are hereinafter provided: 7. Immediately on the execution thereof by the debtor, possession of all "The bankruptcy or insolvency of the plain- be stayed until such election is made, and in tiff in any action" which the assignees might case the assignees neglect or refuse to con- maintain" for the benefit of the creditors, tinue the action and give such security with- ahallnotbe pleaded in bar to such action, in the time limited by the order, the defend- unless the assignees shall decline to continue ant may within eight days after such neglect and give security for the costs thereof, upon or refusal plead the bankruptcy." This sec- a judge's order, to be obtained for that pur- tion does not apply to actions commenced pose within such reasonahle time as the after the bankruptcy or insolvency of the judge may order, but the proceedings may plaintiff. Stanton v. Collier, 3 El. & Bl. 274. PLEAS IN CONTRACT. BANKRUPTCY. 321 Obs. tne property comprised therein, of which the debtor can give or order pos- session, shall be given to the trustees." S. 193. " The date, names, and descriptions of the parties to every such deed or instrument, not including the creditors, together with a short statement of tin- nature and effect thereof, shall be entered by the chief registrar in a book to be kept exclusively for the purposes of such registration. Such en- try shall be made within forty-eight hours after the deed shall have been left with the registrar as aforesaid, ami a copy of such entry shall be. published in the London Gazette within four days alter the making of such entry." The deed takes effect from its date as if the debtor had been adjudicated bankrupt on that day. Re Moor, 3 N. R. 547, L. C. S. 194. " Every deed, instrument, or agreement whatsoever, by which a debtor not being a bankrupt conveys, or covenants, or agrees to convey his estate and effects, or the principal part thereof, for the benefit of his creditors, or makes any arrangement or agreement with his creditors or any person on their behalf, for the distribution, inspection, conduct, management, or wind- ing up of his affairs or estate, or the release or discharge of such debtor from his debts or liabilities, shall within twenty-eight days from and after the exe- cution thereof by such debtor, or within such further time as the court in London shall allow (Wishart v. Fowler, 33 L. J. Q. B. 125), be registered in the court of bankruptcy, and in default thereof shall not be received in evi- dence." This section applies to all deed-; whatsoever, which are, or profess to be, or are obviously on the face of them intended to be deeds of arrange- ment between a debtor and the whole body of his creditors. Hodgson v. Wightman, 1 H. & C. 810; [Prichard v. Timothy, 35 L. J. Ex. 165.] S. 195. " No deed or instrument whatever required to be registered as afore- said shall be registered unless, in addition to the ordinary stamp duty, it also be impressed with or have affixed to it a stamp denoting a duty com- puted at the rate of five shillings upon every hundred pounds or fraction of a hundred pounds of the sworn or certified value of the estate or effects com- prised in or to be collected or distributed under such deed or instrument, provided that the maximum of ad valorem duty payable in respect of any such deed or instrument, shall be two hundred pounds." S. 196. " Every such deed, on being so registered as aforesaid, shall have a memorandum thereof written on the face of such deed, stating the hour of the day at which the same was brought into the office of the chief registrar for registration." S. 197. " From and after the registration of every such deed or instrument in manner aforesaid, the debtor and creditors and trustees, parties to such deed, or who have assented thereto, or are bound thereby, shall, in all matters re- lating to the estate and effects of such debtor, be subject to the jurisdiction of the court of bankruptcy, and shall respectively have the benefit of, and be liable to all the provisions of this act, in the same or like manner as if the debtor had been adjudged a bankrupt, and the creditors had proved, and the trustees had been appointed creditors' assignees under such bankruptcy; and the existing or future trustees of any such deed or instrument, and the cred- itors under the same, shall, as between themselves respectively, and as be- tween themselves and the debtor, and against third persons, have the same powers, rights, and remedies with respect to the debtor and his estate and effects, and the collection and recovery of the same, as are possessed, or may be used or exercised, by assignees or creditors, with respect to the bankrupt or his acts, estate, and effects in bankruptcy; and except where the deed shall expressly provide otherwise, the court shall determine all questions arising under the deed according to the law and practice in bankruptcy, so far as they may be applicable, and shall have power to make and enforce all such orders as it would be authorized to do, if the debtor in such deed had been adjudged bankrupt and his estates were administered in bank- ruptcy." The title of the trustees relates back to an act of bankruptcy prior to the date of the deed. Topping v. Keysell, 12 W. R. 756; 4 N. R. 197, C. P.; [33 L. J. C. P. 225. As to the effect of the section, Porter v. Kirkus, L. R. 2 C. P. 590; Williams v. Cadbury, L. R. 2 C. P. 453. And see end of note (/), post, 324.] S. 198. " After notice of the filing and registration of such deed has been VOL. II. 21 322 PLEAS IN CONTRACT. BANKRUPTCY. Obs. given as aforesaid, no execution, sequestration, or other process against the debtor's property, in respect of any debt, and no process against his person in respect oi any debt, other than such process, by writ or warrant as may be had against a debtor about to depart out of England, shall be available to any creditor or claimant without leave of the court; and a certificate of the filing and registration of such deed, under the hand of the chief regis- trar and the seal of the court, shall be available to the debtor for all pur- poses as a protection in bankruptcy." The certificate of registration is no protection unless the deed itself is valid. Dewhurst v. Kershaw, 1 H. & C. 726; Ilderton v. Castrique, 32 L. J. C. P. 206; Ilderton v. Jewell, 32 L. J. C. P. 256; Leigh v. Pendlebury, 33 L. J. C. P. 172; [but see Lloyd v. Harrison, 34 L. J. Q. B. 97; 35 lb. 153; and Ames v. Colnaghi, 37 L. J. C. P. 159.] S. 200. " If a debtor cannot obtain the assent of a majority in number repre- senting three fourths in value of his creditors, by reason of his being unable to ascertain by whom bills of exchange, promissory notes, or other negotiable securities accepted, drawn, made, or indorsed by him are holden, or by rea- son of the absence of creditors in a foreign country, or other similar cir- cumstances, it shall be sufficient if he obtain the consent of a majority in number representing three fourths in value of all his other creditors to such deed or instrument as aforesaid, provided that notice shall have been in- serted by or on behalf of the debtor in one or more newspapers published in the county or place at which he shall have carried on business, immediately prior to the date of such deed or instrument, requiring his creditors to sig- nify their assent to or dissent from such deed or instrument, by notice in writing addressed to the trustee or trustees thereof, within fourteen days from the insertion of such notice, and that the affidavit or certificate of the trustee or trustees shall state the circumstances of the case, and the same shall be allowed by the court, and provided the deed or instrument be in such form as is expressed in schedule D to this act annexed, which shall vest all the estate and effects of the debtor in the trustees of such deed, and provided that all such other conditions as are hereinbefore required be duly complied with." These sections are in substitution for ss. 224-229 of the act of 1849, which are now repealed, but many of the cases upon deeds under the latter sections will be found of service with respect to deeds under the act of 1861, and will be found all collected, post, 324, 325. The law with respect to the requisites of a valid deed under the 19 2d section, is still in an unsettled state, the decisions of the courts being somewhat con- flicting. They all, however, agree in holding that a deed, to be within the act, must profess to be, and be for the benefit of nil the creditors impartially, as much for one as for another, and a deed which excludes any creditor or gives one an advantage over another, is not binding on non-assenting cred- itors. Wells v. Hacon, 4 N. R. 99; 12 W. R. 790. Accordingly, non- assenting creditors are not bound by a deed for the benefit of those creditors who shall execute it within a certain time; Ex parte Morgan, in re Woodhouse, 2L. J. Bank. 15; Berridge v. Abbott, 1 N. R. 437, C. P.; Dewhurst v. Ker- shaw, 1 H. & C. 726; Copeman v. Hart, 2 N. R. 126, C. P.; or providing for £ayment to those creditors only who shall execute it; Ilderton v. Castrique, 32 , J. C. P. 206; Ilderton v. Jewell, 32 L. J. C. P. 256; 33 L. J. C. P. 148; Ex parte Godden, in re Shettle, 32 L. J. Bank. 37; Dingwall o. Edwards, 33 L. J. Q. B. 161 ; or providing for trade creditors only ; Walter v. Adcock, 7 H. & N. 54; or where non-executing creditors are placed in a situation inferior to that of the majority of the creditors. Ex parte Cockburn, re Smith & Laxton, 3 N. R. 227 ; 4 N. R. 1, L. C; Clapham r. Atkinson, 33 L. J. Q. B. 81. [See, also, Thompson v. Knight, L. R. 2 Ex. 42 ; Tetley v. Wanless, L. R. 2 Ex. 21, 275; Peel v. Webster, 36 L. J. Ex. 188; McLaren v. Bax- ter, L. R. 2 C. P. 559 ; Isaacs v. Green, L. R. 2 Ex. 352. [When the deed is within the meaning of the 192d section, and there is no inequality as between the creditors, and no fraud, the court will not decide upon the reasonableness of the provisions of the deed, that being only matter for the consideration of the creditors. Jacobson v. Lamont, 36 L. J. Ex. 222: L. R. 2 Ex. 394; Bailey v. Bowen, L. R. 3 Q. B. 133; In re Richmond PLEAS IN CONTRACT. BANKRUPTCY. 323 Obs. Hotel Co_ (Limited) ex parte King, L. R. 3 Eq. 10; Pitzpatrick v. Bourne, Jj.Jt.8U B. 283. A deed whereby the creditors bind themselves person- ally to indemnify the trustees, is do) within the section. Wfcfield ,• Nichol son, Weekly Notes, 1868, p. 115. A deed providing for separate creditors only; J-x parte Glen I, R. 2Ch. A,,. 670; 36 L. J. Q. B. 51; or joint cred- itors only ; Iomlin v. Dutton, \\ eeklv Notes, 1868, p. us, Q. B. ; is not with- in- the section, nor is a mere letter of license. Latham v. Lafone L R 2 Jix. 115.] A covenant to indemnify the debtor against negotiable instru- ments indorsed or put into circulation by the creditors, is unreasonable. Woods v Foote, Ex. Ch 32 L. J. Ex. 199; I If. & C. 841 [Oldis v. Arm- ston, L. R S Ex. 406:] In-elbach ,.. \i,bolls. 2 N. R. 75, C. P. ; Nicholson v. Potts 4 N. R. 70, Ex. Ch.; Balden r. Pell, 4 N. R, 186, Q. B. Scis- sions subjectong the creditor to theloss of W^ debt on breach of a covenant not to sue 5 DeTl r king. 2 H. & C. 84 ; Leigh v. Pendlebury, 33 L. J. C. P. 172, that he shall verify his debt by solemn declaration or otherwise to the satisfaction of the trustee, or lose all benefit under the deed. Leijrh v Pen- dlebury, ubi sup And see Kidson v. Barclay, Strick v. De Mattos,°and Dew- hurst v. Jones, Ex. June 1, 1864. A power in the deed enabling the trustees to make such arrangements as they may deem expedient with the creditors whose debts are under £10, is incon- sistent with the act. Ex parte Spyer, re Josephs, 32 L. J. Bank. 62. In that case the lord chancellor rejected the power as repugnant to the cen- tral tenor of the deed, and held its existence no objection to the validity of the deed; but see contra, Woods v. Foote and Dell v. Kin-, u bi sup ,La " c * mo J onoriim "is not necessary to the validity of a deed under the Y»2d section, can scarcely at present be considered as 'finally decided. Under tne corresponding sections of the bankrupt act 1849 (ss. 224-229") the Ian guage of which differs but very slightly from that of the sections cited above, t was held in Tetley v. Taylor, 1 El. & Bl. 529 (reversing the judgment of the queen s bench), followed by a number of other cases, that a « cfssio bono- rum was necessary, and that a reservation of any part of the debtor's prop- erty excepting his necessary wearing apparel, Spitzer v. Chaffers, 33 L. J. w li '•' P r ^ ent 1 od . t ! ie deed froin being binding upon non-assentin- creditors, following the decisions under the act of 1849, Pollock C. B. and Martin B. in Walter v. Adeock, 7 H. & N. 541, held that a « cessio bonorum " was required by the 192d section of the act of 1861, but the lord chancellor, in Jix parte Morgan, in re Woodhouse, ubi supra, disapproved of Tetley v. Tay- lor, ami held that that section did not require that a deed should comprise the whole of a debtor's property, and in Ex parte Cockburn, [33 L. J. Bank, if, J i N. K. 227, he stated that it was in his opinion well settled and clear according to the intent of the bankruptcy act, 1861, that an assignment or surrender of the debtor's estate was not necessary for the validity of a deed ot composition or release under the 192d section, and this has since been fol- lowed by all the courts. As the only provision in the statute as to the operation of the deed itself is that it shall be as valid and effectual and binding on all the creditors as' if they had executed it, it is necessary, in order that the deed may afford a good answer to an action by way of plea, that it should contain a release a covenant not to sue, or some provision, rendering the deed pleadable in bar to an action. labor, Edwards, 4 C. B. N. S. 1; Legg v. Cheesbrough, 5 wi • , \ ' ^^o 11 ^ 8 I;,r k Company v. Pattinson, 2 H. & C 8*9- Whitehead v. Porter, 4 N. R. 99, Q. B. ; Wells r. Hacon, 16 C. B. N. s! 638 ; Reyes v. Llkins, 34 L. J. Q. B. 25 ; Eyre v. Archer, 16 C. B. N. S. 638 ; Jones v. Morns, 34 L J. Q. B. 90 ; (lark, v. Williams. 34 L. J. Ex. 60; Lx. Ch. 189; Kay v. Jones, 19 C. B X. S. 416. But a composition deed, providing that the composition shall be taken in discharge is if the composition be tendered and the tender pleaded, a good anlwer Gar- rod [v. Simpson, 34 L. J. Ex. 70. A deed under the 200th section of the act n the form expressed in the schedule 1) to the act is not pleadable in bar to an action Eyre » Archer, Jones v. Morris, and Clarke v. Williams, ubi H^l > f r . wo " ,d a PP ear "! be ! " ^ better position than a bankrupt ItZl f ? T' ^ 0n , k ' r 1 0f dischar ge. and the only way to take ad- vantage of such a deed, or a deed not containing a release or provision plead- B24 pliSas in contract, bankruptcy. Obs able in bar, is under the 198th section, rendering a certificate of the filing and registration of the deed available to the debtor for all purposes as a pro- tection in bankruptcy. But if the deed is pleadable, and there was an op- portunity for the defendant to plead it, he must plead it in order to have the benefit of it. Whitmore v. Wakerley, 34 L. J. Ex. 83 ; Couston v. Robins, 12 W. R. 1012 ; but see Hartley v. Mare, 34 L. J. C. P. 187 ; [The Stafford- shire Bank v. Emmott, L. R. 2 Ex. 208.] Protection for person and prop- erty in bankruptcy is not sufficient ground for staying an action. Naylor v. Mortimore, 10 C. B. N. S. 566. The assent of each creditor must be absolute ; it will not be sufficient if condi- tional. Secured creditors must be reckoned in calculating the requisite num- ber ; Ex parte Godden, 32 L. J. Bank. 37 ; Turquand v. Moss, 17 C. B. N. S. 15 ; Ex parte Smith, 10 L. T. N. S. 803 ; and the value of their securities is not to be deducted in estimating their value. Ex parte Godden, and Tur- quand v. Moss, ubi supra : Whittaker v. Lowe, L. R. 1 Ex. 74 ; Re Stark, 35 L. J. B. 15. They cannot prove without allowing for the value of their security. Ex parte Morgan, 32 L. J. Bank. 15 ; and see King v. Randall, 14 C. B. N. S. 721. A trust deed may operate as a good conveyance as against an execution creditor, though not assented to by the requisite number of creditors under s. 192; Symonds v. George, 33 L. J. Ex. 231 ; 34 lb. 137 ; and a deed under the 192d section assigning the debtor's property is not fraudulent within the statute of Elizabeth. Evans v. Jones, 34 L. J. Ex. 25. (/) That after the passing and coming into operation of the bankruptcy act, 1861, the defendant was indebted to the plaintiff, and the plaintiff was a cred- itor of the defendant, in respect of the alleged claim, and the defendant was also indebted to divers other persons, bis creditors, and thereupon a deed, dated the day of , was made and entered into between the defend- ant and his creditors [or ''between the defendant of the first part, and A. B. and C. D., trustees on behalf of the creditors of the defendant, of the second part, and his creditors of the third part," as the case may be\ relating to the debts and liabilities of the defendant, and his release therefrom \or " the dis- press been held valid and pleadable in Strick v. Ex parte Oldfield, 11 L. T. N. S. 756; The De Mattos, 3 H. & C. 22 ; Woods v. De Mat- European Central Ry. Co. v. WestalL 35 L. tos, L. R. 1 Ex. 91 ; Dewhirst v. Jones, 3 H. & J. Q. B. 9. As to what claims are provable C.60; Stone v. Jellicoe, 3 H. & C. 263 ; Keyes or barred, Mare v. Underhall, 4 B. & S. v. Elkins, 5 B. & S. 240 ; Walker v. Nevill, 3 566 ; Ex parte Mendel, 33 L. J. Bank. 14 ; H. & C. 403 ; Hidson v. Barclay, 3 H. & C. Ex parte Kempson, 34 L. J. B. 21 ■ The 361, (reversing the decision of the exchequer, General Discount Co. v. Stokes, 30 L. J. C. 3 H. & C. 9 ;) Hemnlewizc v. Jav, 6 B. & S. P. 25 ; Saunders v. Best, 17 C. B. N. S. 731 ; 697; Bailc v r. Bowen, L.R. 3 Q. B. 133; Coles Woods v. De Mattos, L. R. 1 Ex.91. As v. Turner, L. R. 1 C. P. 373 ; Bond v. Weston, to setting aside execution, Stone v. Jellicoe, L. K. 1 Q. B. 169 ; Jobnson v. Barratt, L. R. ubi sup. ; Baerselman v. Langlands, 34 L. J. 1 Ex.65; Gresty v. Gibson, L. K. 1 Ex. 112; Ex. 3. As to effect of certificate, Lloyd Corner v. Sweet, L. R. 1 C. P. 456 ; Blum- v. Harrison, 6 B. & S. 36 ; L. 11. 1 Q. B. berg v. Rose, L. R. 1 Ex. 232; Greenberg 502. As to extending time for registration, v. Ward, L. R. 1 C. P. 585. Invalid or not Re Skinner, 34 L. J. Hank. 9. As to re- pleadable in Davis v. Raphael, 13 W. R. scinding registration and leave to issue exe- 185; Armitage v. Baker, 10 L. T. N. S. cution, Re Ellis, 35 L.J. Bank. 12. As to 526; Benham v. Broadhurst, 34 L. J. Ex. registration, Prichard /•. Timothy, 35 L. J. 61 ; Martin v. Gribble, 3 H. & C. G.i 1 ; Lyne Ex. 165 ; Pearson v. Pearson, lb. 172 ; Re v. Wyatt, 18 C B. N. S. 593; The Chester- Savin, lb. Bank. 37. As to joint debtors, field Co. v. Hawkins, 3 II. & C. 677 ; Gurriu Andrew v. Macklin, 6 B. & S. 201. As to v. Kopera, 3 H. & C. 694 ; Buvelot v. Mills, jurisdiction under the 197th section, Re L. R. I Q. B. 104 ; Boulnois v. Mann, L. R. Brooks, 33 L. J. Bank. 41 ; Re Beale, 32 L. 1 Ex. 28 ; Giddings v. Penning, L R. 1 Ex. J. Bank. 61 ; Re Thinn, lb. 55 ; Re Redway, 325. See, as to tender of composition, Fes- 35 lb. 20 ; Re Marks, lb. 22. As to mutual sard v. Mugnier, 18 C. B. N. S. 286 ; Gar- credit, Stanger v. Miller, L. R. 1 Ex. 58. PLEAS IN CONTRACT. BANKItlTTCV. 325 tribution, inspection, management, and winding-up of his estate," as the case may be], which said deed is in the words and figures following [set out the deed, which in general will be more convenient than stating the effect of the material varts of it], (g) And the defendant says that the several conditions required by the 192d section of the said act to be observed, in order to render the said deed as valid and effectual, and binding on all the creditors of the defendant, as if they were parties to and had duly executed the same, were before action duly observed, and the said deed became, and was, and is, as valid and effectual and binding on the plaintiff, as if he had been a party thereto, and had duly executed the same, (h) 12. Plea under ss. 211-223 of the Bankrupt Act, 1849, and Law. Alcard v. Messon, 7 Ex. 753 ; 8 Ex. 260 ; Tindall v. Hibbert, 2 C. B. N. S. 199. 13. Pleas under ss. 224-229 of the Bankrupt Act, 1849. Phillips v. Surridge, 1 L., M. & P. 458 ; 19 L. J. C. P. 337 ; Stewart v. Col- lins,' 10 C. B. 634; Drew v. Collins, 6 Ex. 670; Tetley v. Taylor, 1 El. & Bl. 521; Cooper v. Thornton, 1 El. & Bl. 544; Fisher v. Bell, 12 C. B. 363 March v. Warwick, 1 H. & N. 158; Macnaught v. Russell, 1 H. & N. 611 Bloomer v. Darke, 2 C. B. N. S. 165 ; Tabor v. Edwards, 4 C. B. N. S. 1 Irving v. Gray, 3 H. & N. 34; Leonard v. Sheard, 1 El. & El. 667 ; Legg v. Cheesbrough, 5 C. B. N. S. 741 ; Snodin v. Boyce, 4 H. & N. 391 ; Gardner v. Chapman, 7 C. B. N. S. 317 ; Dunlop v. Cruger, 7 H. & N. 525; Spitzer v. Chaffers, 33 L. J. C. P. 7. 14. Plea of an Arrangement after Adjudication under the 185th and subsequent Sections of the Bankruptcy Act, 1861. (i) Obs. — As to change from bankruptcy to arrangement, the Bankruptcy Act, 1861, enacts, — S. 185. " At the first meeting of creditors held after adjudication, in manner herein provided, or at any meeting to be called for the purpose, and of which ten days' notice shall have been given in the London Gazette, three fourths in number and in value of the creditors present or represented at such meet- ing may resolve that the estate ought to be wound up under a deed of ar- rangement, composition, or otherwise, and that an application shall be made to the court to stay proceedings in the bankruptcy for such period as the court shall think fit." S. 186. " The registrar shall report such resolution to the court within four days from the date of such resolution, and the bankrupt, or any creditor, nominated in that behalf by the meeting, may then apply to the court, that the proceedings in bankruptcy may be stayed in the terms of such resolution, and the court, after hearing the bankrupt and such creditors as may desire to be heard for or against the resolution, and if it shall find that the resolu- tion was duly carried, and that its terms are reasonable and calculated to benefit the general body of the creditors under the estate, shall confirm the (. Harvey, 15 Maine, 357; Ames v. Colburn, 11 Vt. 390; Wilson v. Henderson, 9 Sm. & M. 375; Hill v. Barnes, 11 N. H. 395; Grimstead v. Briggs, 4 Iowa, 559 ; Hunt v. Adams, 6 Mass. 519; Aldous v. Cornwell, L. R. 3 Q. B. 573 ; ante, 298 ; Ratcliffe v. Planters' Bank. 2 Sneed, 425 ; Boyd ». Brotherson, 10 Wend. 93; Cole v. Hills, 44 N. H. 227; Wheat v. Arnold, 36 Geo. 479.] If a bill has been altered, so as to render it void either at common law (as to which see Crotty v. Hodges, 4 M. & G. 561 ), or under the stam|) laws (as to which see Chit, on Bills, 65-79, 10th ed.; Byles on Bills, 300, 8th ed.), and it be declared upon in its altered form, that defence may be taken under pleas denying the drawing, &c; Cock v. Coxwell, 2 Cr., M. & R. 291; Cal- vert v. Baker, 4 M. & W. 417; and if any material alteration be apparent on the face of the bill when produced in evidence, it will then lie on the plain- till' to prove that it was made under such circumstances as not to render it void. Knight v. Clements, 8 Ad. & E. 215; Clifford v. Parker. 2 M. & G. 909. The plaintiff must show that the alteration was made previously to the bill being issued. Johnson v. Duke of Marlborough, 2 Stark. 313; Glenman v. Dickenson, 5 Bing. 184; [2 Chitty Contr. (11th Am. ed.) 1163, and note (c), where many of the authorities upon this point are cited ; Wheat v. Arnold, 36 Geo. 479; Simpson v. Stackhause, 9 Penn. St. 186; Paine v. Edsell, 9 Penn. St. 178; Clark ». Eckstein, 22 Penn. St. 507; Hoffner v. Wenrich, 32 Penn. St. 423 ; Hills v. Barnes, 11 N. H. 395. The doctrine that an alteration in an instrument is presumed to have been made after its execution, or under circumstances to vitiate it, does not meet with universal assent. See 2 Chitty Contr. (11th Am. ed.) 1163, note (c); Cumberland Bank v. Hale, 7 N. J. (Law) 215 ; Ault v. Fleming, 7 Iowa, 143; Crabtree v. Clark, 20 Maine, 337; Davis v. Jenny, 1 Met. 221; Harlan v. Berry, 4 Greene (Iowa), 212; Jones v. Ireland, 4 Iowa, 63; Norlleet o. Edwards, 7 Jones (N. Car.), 455; Agawam Bank v. Sears, 4 Gray, 95; Hayden v. Good- now, 39 Conn. 164; Welch v. Coulborn, 3 Houst. (De'l.) 647. That the ques- tion whether the alteration was made before or after execution, and whether made with or without the assent of the adverse party, is properly to be de- cided by the jury, see 2 Chitty Contr. (11th Am. ed.) 1163, note (c) and cases cited; Crabtree v. Clark, 20 Maine. 337; Beaman v. Russell, 20 Vt. 205; Pullen v. Hutchinson, 25 Maine, 249; Hunt v. Gray. 35 N. J. (Law) 227.] But this is not so if the making of the bill, as described, is admitted on the record. Sibley v. Fisher, 7 Ad. & E. 444. But if the bill be declared on in its original state, the subsequent alteration must be specially pleaded. Da- vidson v. Cooper, 18 M. & W. 343; S. C. 1 D. & L. 377; Mason v. Bradley, II M. & W. 590; lb. 388. See form, &c. post, 338. Where the subsequent alteration is such that it affords a defence under the stamp laws, then a plea in denial will suffice to let in that objection. Mason v. Bradley, supra. 332 PLEAS IN CONTRACT. BILLS OF EXCHANGE. Obs. The defendant can neither compel a plaintiff to produce a hill at the trial, nor go into secondary evidence of its contents, if he pleads only pleas in confes- rion and avoidance, and gives no notice to produce it; Godered v. Armour, 3 Q. B. 956; Lawrence v. Clarke, 15 L. J. Ex. 40; S. C. 3 D. & L. 87; un- less on a plea impeaching the bill on the ground of alteration. Barker v. Mal- colm. : M. & W. 101. By 17 & 18 Vict. c. 125, s. 87, "In case of any action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the court or a judge in order that the loss of such instrument shall not be set up, provided an indemnity is given to the satisfaction of the court or judge or a master, against the claims of any other person upon such negotiable instrument." Otherwise the loss of a negotiable instrument is a defence to an action on it — alitor, if it is not negotiable. Clay v. Crowe, 5 Ex. '295; 16 L. J. Ex. 280; 9 F.x. 604; per Lewis C J.; Charnley v. Grundy, 23 L. J. C. P. 122; [14 C. B. 608. As to giving bond of indemnity in action on lost note, see, fur- ther. Fales v. KuBsell, 16 Pick. 315; Higgins v. Watson, 1 Mich. 428; Des- mond v. Rice, 1 Hill, 530; Meeker v. Jackson, 3 Yeates, 442 ; Snyder v. Wolfley, 8 Serg. & It. 331; Smith v. Rockwell, 2 Hill. 482; Bisbing v. Gra- ham, 14 Penn. St. 14; Almy r. Reed, 10 Cush. 421 ; Jones v. Fales, 5 Mass. 101; Freeman v. Boynton, 7 Mass. 486; Tuttle v. Standish, 4 Allen, 481.] The court of chancery will not entertain a bill for the payment of money due upon a bill of exchange which is proved to have been destroyed, the Elaintiff having a sufficient remedy at law. Wright v. Lord Maidstone, 24 i. J. Ch. 623. [But in Massachusetts, where there is no statute providing protection for parties sued at law upon lost or destroyed bills and notes, it has been decided that the owner of bank bills, which, cannot be identified or distinguished from other similar bills, cannot maintain an action against the bank which issued them, upon circumstantial evidence that they have been destroyed, and a tender of a bond of indemnity. Tower v. Appleton Bank, 3 Allen, 387. So it was held that the owner of a lost note cannot maintain an action at law against the indorser, in a case where a bond to indemnify the defendant against being called upon a second time to pay the note would not afford to him an adequate protection. Tuttle v. Standish, 4 Allen, 481. In Savannah National Bank v. Haskins, 101 Mass. 370, 376, Colt J. said: " Since the late case of Tuttle v. Standish, supra, it can no longer be con- tended that a recovery at law can be had against an acceptor or indorser, upon a simple bond protecting the defendant from being called on to pay a second time to a bond fide holder. The acceptor of a bill of exchange not only has a right to such protection, but he has a right to have the bill surren- dered to him on its payment, to be used as a voucher in his settlement with the drawer. The remedy afforded by a court of equity in such cases is ap- propriate and complete. A demurrer to a bill in equity seeking such remedy in this case, was overruled. As to the jurisdiction in equity in such cases, see, also, 1 Dan. Ch. Pr. (4th Am. ed.) 392, and note (2); Burrows v. Good- hue, 1 Greene (Iowa), 48; Thayer v. King, 15 Ohio, 242.] 1. Drawer or Indorsee against Acceptor ; Denial of Acceptance. (£) That he did not accept the said bill as alleged. \_If the declaration contain (t) This plea merely denies the acceptance Duck, 11 M. & W. 251; Armani v. Cas- of the hill as set out in the declaration. As trique, 13 M. & W. 443 ; Roberts v. Tucker, to alteration, ante, 330, 331; improper stamp, 16 Q. B. 560. It is not necessary in the first ante, 327. By proof of the acceptance, instance to prove the identity or the defend- the drawing will he admitted, hut not the in- ant with the party who accepted the hill. doraements. Pet Parke B. Blind v. Hamp- Roden v. Rydo, 4 Q. B. 626; Sewell v. Ev- shire, 1 M. & W. 371. If, therefore, the ac- ans, lb. The defendant will succeed on the ceptor t instance. Mills v. Barber, supra; Lewis v. Parker, 4 Ad. & E. 838; Fitch v. Jones, 5 El. & Bl. 238, and post, 341, note (/>). It seems that the plaintiff may reply, setting out what the precise consideration was, as goods sold, &c. in which case he would have to begin ; Low v. Burrows, 2 Ad. & E. 483 ; Edwards v. Jones, 7 C. & P. 633; Batley v. Cattcrall, 1 M. & Rob. 379 ; the defendant might then rejoin, that the goods were paid for. Per Alderson B. Rowlandson v. Roan tree, 6 C. & P. 551. 340 PLEAS IN CONTRACT. BILLS OF EXCHANGE. 2~. Indorsee against Acceptor; Plea that the Bill was accepted for ihi A mmodation of the Drawer, and was taken by Plaintiff after due. Ac. (7) That the said bill was accepted by the defendant before the same became due. for the accommodation of E. F. [the drairer], to enable him to raise money thereon or indorse the same for his own use and benefit before the same should become due and payable, and not otherwise, and that there never any value or consideration for the said acceptance, or for the payment by the defendant of the amount of the said bill or any part thereof ; (£) and the said bill remained and was outstanding in the hands of E. F. \jhe drawer], and not sdven up to the defendant, as it ought to have been, until and after the time when the same became due and payable, without any fault or negligence on the part of the defendant, and without any authority or permission from the dant to negotiate the said bill after the same became due or payable ; and after the said bill became due and payable. (/) and before the defendant could procure the return thereof to him, E. F. [the drawer] indorsed and deliv- ered the said bill to the plaintiff, who received the same with notice of the premises. 28. Indorset against Acceptor ; that Defendant deposited G-oods with the Drawer as Collateral Security for Pay/ I if the Bill; that Drawer sold Groods and applied Proceeds to the Bill, and after it was overdue indorsed it to Plaintiff. Holmes r. Kidd, [3 H. & N. 891.] 29. Indorsee against Acceptor; Plea that the Drawer violated his Agreement with the D lant to get the Bill discounted for him, and that Plaintiff has no better Title than the Drawer, (w) That the defendant gave the said bill to the said E. F. [the drawer], who received the same from the defendant and always held it for a special purpose only, (n) that is to say. that he might get it discounted for the defendant, and (i) Transfer of a bill after it is due, ex- the latter allegation being essential. Car- cept -where for less than £5 (17 Geo. 3, c. ruthers v. West, 11 Q. B. 143. See forms of is valid. Chit, on Bills, 152, 10th plea. Robinson v. Little, 9 Q. B. 602 ; Stein ed. But the transferee takes it with all its v. Yglesias. ubi sup. equities, because it is his duty to make in- (/„-) The defendant 's father owed the payee quiries concerning it. Sturtevant v. Ford, 4 of a note-e sum of money, and the defendant M. ft G. 101. But although the indorsee of gave his note for the amount; it was held an overdue bill takes it with all the equities that as the deht was actually due when the ari^ini' out of the transaction itself, he does note was given, and there was a considera- not take it subject to any collateral claim, tion of family affection, the above facts such as set-off existing between the earlier would not support this plea. Cooke v. parti-s. Whitehead v. Walker, 10 M ft W. Long, 1 Car. & M. 510. 696 ; Burrou-h i\ Moss, 10 B. & C. 558. (/) This is an essential allegation. Cripps When the action is by an indorsee, the plea v. Davis, 12 M. & W. 159. Evidence of it. should show that by agreement between the Bounsall v. Harrison, 1 M. & W. 611. The defendant and the drawer, the bill was only proof lies on defendant. Parkin v. Moon, 7 to be negotiated daring its currency, and C. & P. 408. that without the defendant's consent ; see (m) See forms, L'ther v. Rich, 10 Ad. & Stein v. Yglesias, 1 Cr., M. ft R. 5.65 ; the E. 784 ; Dobie v. Larkin. 10 Ex. 776 ; Hall drawer negotiated it after it was due, and v. Featherstone, 3 If. & N. 2-4. that the plaintiff took it from him with notice; («) That the drawer took as well as that Parr v. Jewell, 16 C. B. 684, where see form ; the defendant gave him the bill for the spe- PLEAS IN CONTRACT. BILLS OF EXCHANGE. 341 pay him over the proceeds ; but the said E. F. did not get it discounted for the defendant, nor pay over any of the proceeds thereof, (o) and in fraud of the defendant, and without his consent, and in violation of the said purpose, indorsed the said bill to the plaintiff ; and the defendant further says, that, except as aforesaid, there never was any value or consideration for the defend- ant's accepting or paying the said bill [impeachment of plaintiff's title~\ ; and that there never was any value (p) or consideration for the indorsement of the said bill to the plaintiff, or for his being the holder thereof [or " when the said bill was first indorsed to the plaintiff, he had notice of the premises," or '• the said bill was overdue when it was first indorsed to the plaintiff'']. [If more than one indorsement, each must be impeached in one or other of these ways.~] {q) cial purpose, must be proved. Eden v. Jurtle, 10 M. & W. 835. (o) Or the special purpose may be " that the said E. F. should take care of the bill for the defendant, and should not negotiate or part with it to anv other person." See Braraah v. Roberts, l" Bing. X. C. 469. In an action on a bill or note, where the de- fence is want of consideration, the defend- ant, whether he be the acceptor, maker, or indorser, must show affirmatively under what circumstances, or upon what terms, or for what purpose the instrument w;is given, that is, he must show the facts from which the absence of consideration would appear. Per Parke B. Mills v. Oddv, 2 Cr., M. & K. 103 ; [Greer r. George, 8 Ark. 131 ; Phelps v. Younger, 4 Ind. 450 ; Prior v. Coulter, 1 Bailey, 517 : Coburn v. Odell, 30 N. H. 540; Doe'r. Burnham, 31 N. H. 430; Horn v. Fuller, 6 N. H. 511 ; Adams r. Hackett, 27 N. H. 293 ; Sawyer r. Vanghn, 25 Maine, 337, 339; Emery v. Estes, 31 Maine, 155 ; Parish v. Stone", 14 Pick. 198, 201 ; Jennison v. Stafford, 1 Cush. 168, 169; Mitchell v. Rome R. R. Co. 17 Geo. 574; Feagan v. Cureton, 19 Geo. 404; Camp u. Tompkins, 9 Conn. 545 ; Mandeville a. Welch, 5 Wheat. 277 ; Kennedv v. Murdick, 5 Harr. (Del.) 263 ; MiddleburV v. Case, 6 Vt. 165 ; 1 Chitty Contr. (11th Am. ed.) 25, 26 ; but see Delano v. Bartlett, 6 Cush. 364 ; Morris v. Bowman, 12 Gray, 467.] A plea simply alleging the want of consideration, is bad on demurrer, though good after verdict. Easton v. Pratchett, 1 Cr., M & R. 798 ; Stoucrhton v. Lord Kilmorey, 2 Cr., M. & R. 72 ; S. C. 3 Dowl. 705 ; Stephens v. Underwood, 4 Bing. N. C. 656 ; Trinder v. Smedley, 3 Ad. 6 E. 522. At chambers such a plea has been held to be non-issuable. See Chit. Prac. 11th ed. 248. A plea negativing considera- tion for the plaintiff only, was held bad on general demurrer. Graham r. Pitman, 3 Ad. & E. 521. If the facts are such that the indorsee got hold of the bill without the drawer having ever had any intention to de- liver it to him so as to enable him to use it for any purpose, then denv the indorsement. See Marston v. Allen, 8 M. & W. 494. If A. deliver or transfer a bill to B. for a partic- ular purpose, to be effected through the me- dium of the bill for A.'s benefit (as to dis- count the bill, &c.), B. cannot, by indorsing the bill to C, even for a valuable considera- tion, as a debt, &c. give C. any right of ac- tion thereon against A., if C. at the time he received the instrument had notice of the cir- cumstances, and the transfer to him be in violation of good faith, and will, if upheld, defeat the purposes for which B. held the bill. Delaunav v. Mitchell, 1 Stark. 439 ; Evans >:. Kvmer. 1 B. & Ad. 529; Chit, on Bills, 9th ed. 72, 80, 238. (p) Value, as well as consideration, must be negatived. The plaintiff would recover, if it appeared that he gave any value for the bill, as his knowledge of or privity with pre- vious misconduct of the drawer, would not be in issue. Uther v. Rich, 10 Ad. & E. 784. Though the defendant prove the whole plea except this averment, that will not be sufficient to call upon the plaintiff to prove consideration ; Brown v. Philpot, 2 M. & R. 286 ; ante, 339, note (g), nnless there is proof of circumstances of suspicion which might be left to the jurv as evidence of fraud. Hall v. Featherstone, 3* H. & X. 284 ; Smith v. Brave, 16 Q. B. 244 ; Berrv r. Alderman, 14 C. B. 95 ; Harvey i\ Towers, 6 Ex. 656. Evidence of fraud or illegality, or that the bill was lost or stolen, puts the plaintiff on proof that he is a holder for value. See cases last cited, and Raphael v. Bank of Eng- land, 17 C. B. 161 : Mather r. Lord Maid- stone, 1 C. B. X. S. 273 ; and post, 345, note (a); [Smith v. Livinsrston, 111 Mass. 343, 344 ; Clark v. Thayer, 105 Mass. 216 ; Tucker v. Morrill, 1 Allen, 528 ; Smith t. Edgeworth, 3 Allen, 233 ; Sistermans v. Field, 9 Gray, 331 ; Monroe v. Cooper, 5 Pick. 412 ; Worces- ter County Bank v. Dorchester i Milton Bank, 10 Cu-h. 4s^ : Wyer c. Dorchester & Milton Bank. 11 Cush. 51 ; Bailev v. Bid- well, 13 M. & W. 73.] (q) Any one of these three allegations is sufficient to impeach the plaintiff's title, and it is now not unusual .to make them all in one plea (instead of in separate pleas), al- though such a plea would formerly have been bad on special demurrer for duplicitv. Leaf v. Robson. 13 M. & W. 651. Where there are several indorsements, a great mul- tiplicity of pleas may be thus avoided. :'.42 PLEAS IN CONTRACT. BILLS OF EXCHANGE. 30. Indorsee against Acceptor ; Plea that the Acceptance was for the Drawer s Accommodation, who indorsed it to A. to discount it for him, but that A., in Violation of that Purpose, indorsed to the Plaintiff with Notice. Lees v. Hoffstadt, 9 C. & P. 559. 31. Indorsee against Drawer ; Plea that the Bill was drawn for the Acceptor's Accommodation, and indorsed by the Defendant to A. to discount for the Acceptor, and that A., in Violation of that Purpose, indorsed to the Plaintiff with Notice. Lewis v. Parker, 4 Ad. & E. 838. 32. Indorsee against Acceptor ; Plea that the Defendant accepted with- out Value, and that the Bill was settled in an Account with a prior Indorsee, and that Plaintiff took the Bill after it was due. (r) That he accepted the said bill for the accommodation of the said E. F. [the drawer], and that there never was any value or consideration for such accept- ance, and that there never was any value or consideration for the indorsement of the said bill by the said E. F. to the said G. H. [the first indorsee'] ; and the defendant further says that the said J. K. [the plaintiff's indorser] was the holder of the bill when the same became due and payable, and that after the said indorsement to the said J. K. and whilst he was the holder of the said bill and before it was indorsed to the plaintiff [here state the settlement between the first and second in dor sers, which may be as follows : (s) "the said G. H. and the said J. K. had accounts depending between them, and were respect- ively indebted to each other, and an account was stated and settled between them respecting such accounts and debts, including the said bill, and the said J. K. then had credit in such account for the full amount of the moneys then due and claimable upon and in respect of the said bill, and the amount or balance then found to be due upon such account from the said J. K. to the said G. H., after giving such credit, was paid and satisfied, and all claims thereon of the said J. K. were then extinguished "] ; and the defendant fur- ther says, that, after such satisfaction of the said bill as aforesaid, the same remained in the hands of the said J. K. without consideration or value and without the consent of the defendant, and the said J. K., in violation of good faith and without the consent of the defendant, indorsed the said bill to the plaintiff, and the plaintiff first took the same long after the same became due, and after the same had been satisfied and paid as aforesaid. (r) It would seem that this defence might specially pleaded. Similar defence to a note, be taken under the stamp laws, on a plea of Bartrum v. Cuddy, 9 Ad. & E. 274. non accepit, as the payment by an accommo- (s) See another form, Cripps v. Davis, 12 dation drawer is equivalent "to payment by M. & W. 159, or it would suffice, instead of the acceptor, and renders the bill incapable the part within the brackets, to state a pay- of being reissued without a fresh stamp, ment of the bill by the first indorsee to the See Lazarus v. Cowie, 3 Q. B. 459 ; Parr ». second, as ante, form 18, or to state an accord Jewell, 16 C. B. 684, where the facts were and satisfaction according to any of the pre- cedents, ante, 289, mutatis mutandis. PLEAS IN CONTRACT. BILLS OF EXCHANGE. 343 33. Indorsee against Acceptor ; Plea that the Bill was indorsed to the Plaintiff after it was due, and that the Defendant paid Part to a Prior Holder, and gave him another Bill in Renewal. That at the time the said bill became due and payable, it was in the hands of the said G. II. in the declaration mentioned, as the lawful holder thereof for value, and before the bill became due, and whilst the said G. H. continued to hold the same, it was agreed between the defendant and G. II. that the defend- ant should pay to the said G. H. part of the amount of the said bill, and that the defendant should accept a bill of exchange for the residue of the amount of the said bill, to be drawn by the said G. II. upon him the defendant ; and afterwards, and before the said bill became due, and whilst the same was in the hands of the said G. H. as the holder thereof, and before the same was indorsed to the plaintiff, the defendant, in pursuance of the said agreement, paid to the said G. H. part of the amount of the said bill, and accepted and delivered to the said G. H. such bill of exchange as aforesaid, for and on account of the residue of the said bill ; and the said G. H. accepted and re- ceived on the terms aforesaid the said sum, and the bill so accepted by the defendant as last aforesaid, and the defendant then became liable to pay the said last mentioned bill ; (t) and the defendant further says [as ante, 340, Form 29]. 34. Plea that the Plaintiff accepted a Composition for the Bill from a Prior Holder, without Defendant's Consent. Houlditch v. Cauty, 4 Bing. N. C. 418. 35. Indorsee against Indorser ; Plea that the Plaintiff indorsed the Bill away before due, to a Person unknown, who presented it to the Acceptor, by ivhom it was refused, of which Defendant had no Notice. Bartlett v. Benson, 14 M. & W. 733 ; 15 L. J. Ex. 23. 36. Drawer against Acceptor ; Plea that the Bill was accepted on a Consideration to be received in future, ivhich failed before it took effect (e. g. that the Plaintiff should sell Goods to the Defendant, which he failed to do. (u) That the bill was drawn and accepted by the defendant for and on account (t) If the defendant has paid the hill given the plea should aver, that there was never any in renewal, state the fact thus : " and paid consideration. In the latter, the plea should the same when the same became due ; " or, show as above the original consideration and if not due when the action was commenced, its failure. The total failure of considera- allege that " the time for payment of the tion on a bill may arise where the considera- same had not elapsed at the commencement tion for the bill was to be carried into effect of this suit." at a future time, and failed in being so ; as, (u) See other forms, "Wells v. Hopkins, where a man gives another a promissory note 4 M. & W. 7 ; Camac v. Warriner, 1 C. B. for the trouble he will have in being his ex- 356; Astley v. Johnson, [5 H. & N. 137 ;] Gil- editor, and the maker dies first. Solly v. lett i'. Whitmarsh, 8 Q. B. 966. It is mate- Hinde, 2 Cr. & M. 516. Thus it would be a rial to attend to the distinction between good plea to a bill, that it was given for the original absence of a consideration, and a purchase-money of an estate which had not failure of the consideration upon which the been conveyed to the defendant, that there instrument was given. In the former case was no writing within the statute of frauds, 344 TLEAS IN CONTRACT. BILLS OF EXCHANGE. of the price of certain goods (x) sold by the plaintiff to the defendant, and which goods were to be delivered to the defendant before the bill should he- come payable, and that there never was any value or consideration for the defendant's acceptance of the bill, or for his paying the amount thereof except as aforesaid ; and although he was always, before the bill became due and pay- able, ready and willing to accept and receive the said goods upon the terms aforesaid, yet the plaintiff did not deliver such goods or any part thereof to the defendant, but wholly neglected and refused so to do. (y) 37. Draiver against Acceptor ; Plea that the Bill was accepted subject to an Investigation of Accounts between the Parties, and that it was afterwards found that there was no Balance against the Defendant. That before the said bill of exchange was drawn and accepted, there were accounts between the plaintiff and the defendant, which were then open and unsettled, and it had not then been ascertained whether or not the balance was in favor of the plaintiff ; and when the bill was drawn and accepted, it was agreed between the plaintiff and defendant that the said accounts should be investigated by the plaintiff and defendant, and an account stated between them respecting the same, before the bill should become due, and that in the event of its being found, upon the settlement of such account, that the defend- ant was not indebted to the plaintiff on such accounts, the defendant should not be called upon by the plaintiff or be liable to pay to him the said bill ; and the plaintiff then drew and the defendant then accepted the said bill, and the plaintiff received the same upon the terms of the said agreement; and afterwards, and before the bill became due, and before this suit, the said and that the plaintiff had refused to give pos- tion of the price, even on a note given, as session of or convey the estate; Jones v. between the original parties, in cases of Jones, 6 M. & W. 84 ; or that it was on condi- sales with warranty, or false representation, tion plaintiff would pay debts for defendant, though the article has not been returned; which lie had not done. Cole v. Cresswell, and this is allowed to prevent circuity of ac- 11 Ad. & E. 661 ; Chit, on Bills, 10th ed. 49. tion. 1 Chitty Contr. (11th Am. ed.) 652, The partial failure of consideration involv- 653, and notes ; Harrington v. Stratton, 22 ing a question of unliquidated damages, af- Pick. 510 ; McKnight v. Devlin, 52 N. Y. ("ids no defence, as in the case of a bill for 402 ; Rasberry v. Move, 23 Miss. 320 ; Benj. the price of an unsound borse warranted Sales (1st Am. ed.), § 902, note («) ; Hill sound, but which has not been taken back; v. Southwick, 9 R. I. 299; Goodwin v. 7 East, 483 ; 14 East, 486 ; Mann v. Lent, Morse, 9 Met. 278 ; Wright v. Roach, 57 10 B. & C. 877 ; Spiller v. Westlake, 2 B. & Maine, 700 ; Mixer v. Coburu, 11 Met. 561 ; Aid. 155; or for work which has been badly Westcott v. Nims, 4 Cush. 215; Perley v. done ; Trickey v. Larne, 6 M. & W. 278 ; S. Balch, 23 Pick. 283 ; Stacy v. Kemp, 97 C. 8 Dowl. 174; or for goods sold with a Mass. 166, 168; Cook v. Castner, 9 Cush. warranty which has been broken ; Warwick 277; Burnett v. Smith, 4 Gray, 50; Coburn i'. Nairn, 10 Ex. 762 ; Horsfall v. Thomas, [1 v. Ware. 30 Maine, 202 ; Hanimatt v. Emer- H. & C. 90;] Camac v. Warriner, ubi supra ; son, 27 Maine, 308 ; Albertson v. Halloway, nor can the failure of part of the considera- 16 Geo. 207 ; Lane v. Oldham, 22 Ind. 51; Hon be pleaded as a defence to the whole bill. Butler v. Northampton, 50 N. H. 33 ; Hitch- Clarke v. Lazarus, 2 M. & G. 167 ; Chit, on cock v. Hunt, 28 Conn. 343 ; 2 Kent, 474.] Bills, 10th ed. 49 ; Camac v. Warriner, 1 C. (x) Or "in consideration that the plain- B. 356. The above plea might readily be tiff would lend and advance money," &c. or adapted to a case where the plaintiff was an "perform certain services." In the latter indorsee, by adding one of the averments at case it should be averred that the time for the end of form 29, p. 340, observing the performing the services had elapsed. Abbott notes there. [But generally, in the American v. Hendricks, 1 M. & G. 791. This may states, a partial, as well as a total failure of readily be adapted accordingly, the consideration may be given in evidence (y) If goods of a different quality were by the maker of a note, to defeat or mitigate, delivered by the plaintiff and accepted by as the case may be, a recovery. So, the true the defendant, that should be replied. Wells value of articles may be shown in reduc- v. Hopkins, 4 M. & W. 7. PLEAS IN CONTRACT. BILLS OF EXCHANGE. 345 accounts were investigated by the plaintiff and defendant, and an account was stated and settled between them, and it then appeared and was found by them that the defendant was not indebted to the plaintiff in respect thereof, nor is the defendant indebted to the plaintiff in respect of the said accounts or other- wise, nor has he the defendant received any value for the said bill ; and by reason of the premises, the plaintiff, at the commencement of this suit, held and now holds the said b'\\\ without any value or consideration, and seeks to enforce payment thereof in violation of the said agreement. 38. Drawer against Acceptor, or Indorsee against his Indorser ; Plea that the Acceptance or Indorsement was obtained by Fraud. (z) That the defendant's acceptance [or "indorsement"] "of the said bill was ob- tained and procured by the plaintiff by fraud. 39. Indorsee against Acceptor; Plea that the Drawer obtained the Acceptance by Fraud, and that Plaintiff took the Bill ivith Notice thereof, or without Value, or after due. (a) That the acceptance of the said bill was obtained from him by the said C. S. [the drawer'}, by fraud. \_Impeach the plaintiff's title as in Form 29, ante, 341.] (2) See post, title " Fraud." If it be shown that the bill was obtained of the plaintiff by fraud or illegality, or duress, or that it has been lost or stolen, that compels the plaintiff to prove consideration, but not otherwise; Mills v. Barber, 1 M. & W. 426 ; Harvey v. Towers, 6 Ex. 656 ; [ante, 341, note (p) ;] so if it be shown that the person who indorsed to plaintiff parted with it in violation of good faith. Smith v. Braine, 16 Q. B. 244. So, a man who signs a note on the represen- tation that he is not to be liable unless an- other person signs it, who refuses to do so, is not liable on it. Awde v. Dixon, 6 Ex. 869 ; and see Southall v. Rigg, [11 C. B. 481.] Where the action is by an indorsee and the fraud was committed by the. drawer or a prior indorser, the plea should state such fact, and then show that the plaintiff took the bill with notice of the fraud or without consideration. Bramah v. Roberts, 1 Bing. N. C. 469 ; per Tindal C. J. Foster v. Pearson, 1 Cr., M. & R. 849 ; Lewis v. Rcilly, 1 Q. B. 349. See next form and notes, and Chit, on Bills, 10th ed. 50. (a) Supra, note (z). In this case the proof, by the defendant, of the fraud, puts the plaintiff on proof of the consideration given by him, &c. Duncan v. Scott, 1 Camp. 100; Baylev v. Bidwell, 13 M. & W. 73. See Hall v. Felitherstone, 3 H. & N. 284 ; [ante, 341, note (p)]. If a person takes a negotiable instrument bond fide, and for full value, he can recover on it, although it had been stolen and he took it negligently. Raphael v. Bank of England, 17 C. B. 161 ; [Smith v. Livingston, 111 Mass. 342 ; Good- man v. Simonds, 20 How. (U. S.) 343.] But the presumption that the holder of a bill gave value for it is rebutted, if it appear that the acceptance is a forgery — the holder must then prove that he gave consideration for it. Mather v. Lord Maidstone, 1 C. B. N. S. 273 ; 26 L. J. C. P. 58. See Flitch v. Jones, 5 El. & Bl. 338 ; ante, 339, note (A), 341, note (/;). It is not sufficient to allege that the plaintiff was guilty of gross negli- gence in taking the bill; Uther v. Rich, 10 Ad. & E. 788; [Smith v. Livingston, 111 Mass. 342 ; Goodman v. Simonds, 20 How. (U. S.) 343 ;] as the holder of negotiable se- curities, transferable by delivery, or indorse- ment in blank, may give a title which he does not himself possess, to a person who takes them bond fide for value before they are due. Haynes v. Foster, 2 Cr. & M. 237 ; Foster v. Pearson, 1 Cr., M. & R. 849. Gross negligence may, however, be evidence under the above plea, as one of the ingredi- ents from which a jury may infer mala fides. Goodman v. Harvey, 4 Ad. & E. 870. But unless the jury come to the conclusion that the plaintiff was in privity with, or had knowledge of, the conduct of a previous in- dorser, it will be no defence to an action on the bill, even that such previous indorsei stole it; lb.; and Arbouin v. Anderson, 1 Q. B. 504 ; Robinson v. Reynolds, 1 G. & D. 526 ; S. C. 2 Q. B. 196, confirmed by Thied man v. Goldschmidt, 1 De G rmed by in , F. & J. 4. 346 PLEAS IN CONTRACT. BILLS OF EXCHANGE. 40. Plea to a Note, that it was signed by Defendant as a Surety for A, B., to whom Plaintiff was to advance a Sum of Money, and that Plaintiff, without Defendant's Consent, advanced a Less Sum. Stone v. Compton, 5 Bing. N. C. 144 ; and see Green v. Gosden, 3 M. & G. 44G ; Brown v. Wilkinson, 13 M. & "VV. 14. 41. Indorsee against Acceptor (or Drawer) ; that Plaintiff has in- dorsed away the Bill. (5) That after the hill was indorsed to the plaintiff, and before this suit, he in- dorsed it (the same being payable to order and transferable by indorsement) (c) to a person to the defendant unknown [or " to one G. H." ], who thenceforth has been and is the holder thereof. 42. Indorsee against Maker; that Payee became Bankrupt before he indorsed it to Plaintiff. Green v. Steer, 1 Q. B. 707. 43. Drawer or Indorsee against Acceptor ; that the Bill has been lost by the Plaintiff, (c?) That the plaintiff, after he became the holder of the said bill, lost the same, and the same still is out of his control and possession, the same being payable to order and transferable by indorsement, (e) 44. Plea to a Declaration averring no Effects with Drawee instead of Notice of Dishonor (ante, 79, Form 15), that one P. was liable to Defendant for the Amount of the Bill, and that there were Mutual Accounts between P. and the Acceptor, and that Defendant drew and the Acceptor accepted for and on Account of the Premises, and in the Belief that the Acceptor would pay when due, and Replication in Denial. Terry v. Parker, 6 Ad. & E. 503. (/) (6) See forms, &c. Arthur v. Beales, 1 sard v. Robinson, 7 B. & C. 90 ; Ramuz v. Ex. 608; Jones v. Studd, 4 Bing. 663; and Crowe, 1 Ex. 167 ; and the loss even after see Wright v. Watts, 3 Q. B. 89. This plea dishonor is a good defence (lb.), and in an cannot fairly and effectually be pleaded in answer to a count on the consideration. cases where" the plaintiff has had the bill Crowe v. Clay, 8 Ex. 295 ; » Ex. 604 ; [2 returned to him, and is the holder. It com- Chitty Contr. (11th Am. ed.) 1138.] But pels him, however, in his replication, to the bill need not be produced after judgment reply that he afterwards took it up, or he by default. Lane v. Mullins, 1 Dowl. N. S. may reply that the plaintiff was the holder at 562; S. C. 2 Q. B. 254. But the loss cannot the time of the commencement of this suit, be pleaded to a non-negotiable note. Wain See form, &c. Erazer v. Welsh, 8 M. & W. v. Bailey, 10 Ad. & E. 616. By the C. L. P. 629. Instances of bad replications to this Act, 1854, s. 87, "In case of any action plea. Schild v. Kilpin, 8 M. & W. 676 ; founded upon a bill of exchange or other Basan v. Arnold, 8 Dowl. 357 ; S. C. 6 M. negotiable instrument, it shall be lawful for & W. 559. If an overdue bill be indorsed the court or a judge to order that the loss of after action brought, the indorsee, with no- such instrument shall not be set up, provided tice of the action, has no right of action on an indemnity is given, to the satisfaction of the bill. Jones v. Lane, 3 You. & Col. 281. the court or judge, or a master against the (c) This allegation is necessary if it does claims of any other person upon such nego- not appear on the declaration. tiable instrument." (d) Sec the law upon this subject, Chit. (e) See note (c), supra. on Bills, 10th ed. 178. The holder of a bill (f) It would also be an answer to a decla- must produce it, in order to enforce it ; Han- ration containing such an averment, to show PLEAS IN CONTRACT. BILLS OF EXCHANGE. 347 45. Indorsee against Drawer ; Plea of Discharge by Time given to the Acceptor, (ff) That after the said bill became clue, and whilst the plaintiff held the same, it was, without the defendant's consent, for a good and sufficient consideration, agreed by and between the plaintiff and the said E. F. (h) [the acceptor^, that the plaintiff should give the said E. F. time for payment of the amount due upon the said bill ; and in pursuance of such agreement the plaintiff gave time to the said E. F. for payment of the said bill, without the defendant's con- sent, (i) 46. Plea of Discharge by talcing a Cognovit. (Je) Hall v. Cole, 4 Ad. & E. 577. 47. Indorsee against Indorser ; Discharge by giving Time to a Party Intermediate between the Plaintiff and the Defendant. Lyon v. Holt, 5 M. & W. 250. N. B. It was held in that case that the indorsement of the party to whom the time was given was material to be proved. 48. Indorsee against Acceptor ; Plea that an Intermediate Indorser was a Married Woman ; and Replication that she indorsed with the Authority of her Husband. Prince v. Brunatti, 1 Bing. N. C. 435. 49. Plea that the Plaintiff is a Convicted Felon. Bullock v. Dodds, 2 B. & Aid. 258 ; and see, as to the law on this subject, Lambert v. Taylor, 4 B. & C. 138; Doe v. Pritchard, 5 B. & Ad. 765 ; Re Saunders, Saunders v. Warton, 32 L. J. Ch. 224. See " Felony," post. that the defendant had a remedy over against as in the text, an agreement to forbear, then, some third person, in which case he is enti- it seems, that the fact that the agreement tied to notice. Norton v. Pickering, 8 B. & was by a judge's order, and that no longer C. 610; Cory v. Scott, 3 B. & Aid. 619; time was given than the acceptor would have Chit, on Bills, 10th ed. 187. had by the practice of the court, should be (g) See forms. Isaac v. Daniel, 8 Q. B. specially replied. Isaac v. Daniel, 8 Q. B. 500; Smith v. Winter, 4 M. & W. 461. As 500. But Wightman J. seemed to think to this defence, see Price v. Edmunds, 10 B. in that case that those facts might be proved & C. 583 ; Whitfield v. Hodges, 1 M. & W. under a replication denying the forbearance. 679 ; Chit, on Bills, 10th ed. 286. Mere for- See, also, James v. Williams, 13 M. & W. bearance or inactivity on the part of the 828. creditor, is no discharge. Strong v. Foster, (h) An agreement with a stranger to give 17 C. B. 201 ; [1 Chitty Contr. (11th Am. time to the principal, does not discharge ed.) 779, and note (m 1 ), in which the Ameri- surety. Fraser v. Jordan, 8 El. & Bl. 303. can cases, to the same effect, are cited.] It (i) In general, a mere binding agreement is necessary to show that the holder legally to give time between prior parties to the bill, bound himself to give time, and, therefore, if founded upon afresh and sufficient considera- the time was given by consenting to a judge's Hon, would seem ipso facto to discharge the order, it must appear by the order, if set out subsequent parties. Clark v. Wilson, 3 M. in the plea, that proceedings were in the & W. 208 ; Lyon v. Holt, 5 M. & W. 250 ; mean time stayed ; Michael v. Myers, 6 M. [1 Chitty Contr. (11th Am.ed.) 781, note (x), & G. 702 ; and that a longer time was thus in which the American cases, to the same given than that in which, by the practice of effect, are cited.] the court, judgment might have been obtained (k) See other forms, Moss v. Hall, 5 Ex. against the acceptor. Kennard v. Knott, 4 46 ; Kennaid v. Knott, 4 M. & G. 474 ; M. & G. 474. But if the plea merely aver, Michael v. Myers, 5 M. & G. 702. 348 PLEAS IN CONTRACT. BILL TAKEN. 50. Indorsee against Acceptor; Plea no Consideration for Accept- ance, and that by Agreement between the Drawer and Plaintiff, the latter was only to enforce the Note on certain Conditions, which the Drawer had not complied with. Edwards v. Jones, 2 M. & W. 414 ; S. C. 5 Dowl. 385. 51. Indorsee against Indorser ; Plea that the Drawer (who indorsed to Defendant^) and the Plaintiff were the same Persons ; (I) Repli- cation that the Defendant indorsed for the Acceptor's Accommoda- tion, to whom Plaintiff gave Consideration. Wilders v. Stevens, [15 M. & W. 208;] and see Boulcott v. Wooloott, 16 M. & W. 584; Williams v. Clark, 16 M. & W. 834. BILL TAKEN" FOR THE DEBT. Obs. — In the case of a simple contract debt or money demand, if the creditor accepts from the debtor or a stranger a bill or note for and on account of the debt, that operates as a conditional payment. Bottomley v. Nuttall, 5 C. B. N. S. 144 ; James v. Williams, 13 M. & W. 828 ; Kearslake v. Morgan, 5 T. R. 513 ; Belshaw v. Bush, 11 C. B. 191 ; 22 L. J. C. P. 24 ; Kendrick v. Lomax, 2 Cr. & J. 405 ; Simon v. Lloyd, 2 Cr., M. & R. 187; [2 Chitty Contr. (11th Am. ed.) 1133 et seq~\. But the remedy on the original demand is only sus- pended, and revives upon the dishonor of the bill. Per cur. Crowe v. Clay, 9 Ex. 608 ; 23 L. J. Ex. 151 ; [Butler v. Haight, 8 Wend. 535.] Where it is agreed that the bill shall be taken as payment of the debt, the right of suing for the debt is lost, and the only remedy is upon the bill. Sayer v. Wagstaff, 5 Beav. 415; Said v. Rhodes, 1 M. & W. 153. [Many cases to the same effect, decided in the American courts, are cited in note (x) to 2 Chitty Contr. (11th Am. ed.) 1135; Coburn v. Odell, 30 N. H. 540, 557 ; Bonnell v. Chamberlin, 26 Conn. 487; Lyman v. United States Bank, 12 How. (U. S.) 225 ; Vail v. Foster, 4 Comst. 312 ; Steamboat Charlotte v. Ham- mond, 9 Missou. 59; Miries v. McDowell, 4 Geo. 182 ; Geiser v. Kersher, 4 Gill & J. 305 ; Hutchins v. Olcott, 4 Vt. 555 ; Kean v. Dufresne, 3 Serg. & R. 233. In Massachusetts, and some other states, the ffivins: a negotiable note for a simple contract debt is held to be prima facie evidence of payment of it, liable to be rebutted by circumstances showing a different intent. See Reed v. Upton, 10 Pick. 525 ; Wallace v. Agry, 4 Mason, 342 ; Marston v. Boynton, 6 Met. 127; Shaw C. J. in Melledge v. The Boston Iron Co. 5 Cush. 158, 170 ; Descadillas v. Harris, 8 Greenl. 298; Newall v. Hussey, 18 Maine, 249 ; Camp v. Gullett, 2 Eng. 524; Costar v. Davies, 3 Eng. 213.] But to debt on a bond conditioned for payment of money, pleas that after the day of payment, and before action, the obligor received certain bills of ex- change not yet due, on account of part of the sum due on the bond, and certain moneys in satisfaction of the residue, were held ill. Worthington v. Wigley, 3 Bing. N. C. 454. So, a promissory note given and received for rent does not extinguish the claim for such rent, which is a debt of a higher degree than that arising upon the note. Nor does the receipt of such note of itself suspend the right of distraining. Davis v. Gyde, 2 Ad. & E. 623. So, a plea of bill taken will not be good in a case of unliquidated damages. Griffiths v. Owen, 13 M. & W. 58. See, further, on this subject, [2 Chitty Contr. (11th Am. ed.) 1113 et seq.~] (I) As to this defence, see Bishop v. Hayward, 4 T. R. 470 ; Steel v. Harmer, 14 M, feW. 831. PLEAS IN CONTRACT. BILL TAKEN. 349 1. Plea that the Defendant accepted a Bill of Exchange not yet due on account of the Debt, (w) That before this suit the plaintiff made his bill of exchange, («) bearing date [#c], and thereby required the defendant [two months] after the date thereof, which period had not elapsed at the commencement of this suit, (o) to pay to the plaintiff or order (p) £ , and the defendant then accepted the said bill and then delivered the same to the plaintiff, who then received the same from the defendant (q) for and on account of the said debt and the causes of action in respect thereof. 2. Replication (to a Plea that the Defendant accepted a Bill drawn by a TJiird Person) that the Bill ivas dishonored when due. (r) That before this suit the said bill of exchange became due and payable, but the defendant has not paid the same ; and the plaintiff, at the time of the com- mencement of this suit, held and now holds the said bill unpaid and unsatis- fied, (s) (m) Where the action is on a bill or note, the plea should show that both the one given in substitution and also the one on which the action is brought were outstanding at the commencement of the suit ; Goldshede v. Cottrell, 2 M. & W. 20 ; Boydell v. Champ- neys, 2 M. & W. 435 ; or else the second bill should be pleaded as having been given, Crisp v. Griffiths, 2 Cr., M. & R. 159, and taken in accord and satisfaction of the debt and damages. In the latter case, as the remedy would not revive with the dishonor of the second bill, a replication that it was so dishonored was held bad. Sard v. Rhodes, 1 M. & W. 155, and see form of plea there ; and see Thompson v. Perceval, 5 B. & Ad. 925; Kir wan v. Kirwan, 2 Cr., M. & R. 617. See form, &c. of plea of accord and satisfac- tion by delivering another bill to a prior holder before the indorsement to the plain- tiff, Lewis v. Lyster, 2 Cr., M. &3> R. 704. Plea of bill given " to take up " and " in lieu of" another. Goldshede v. Cottrell, 2 M. & W. 20. In such case it is a question for the jury whether the bill is given in substitu- tion or only to gain time for payment. lb. Evidence necessary to show that a bill has been accepted in satisfaction. Baker v. Jub- ber, 1 M. & G. 212 ; [2 Chitty Contr. (11th Am. ed.) 1135, note (x).] The presumption in the first instance will be, that the bill was given " for and on account." Saver v. Wag- staff, 5 Beav. 415. [In Massachusetts and some other states, the giving of the bill or note is prima facie evidence of payment. Ante, 348; 2 Chitty Contr. (11th Am. ed.) 1135, note (x).] Payment by bill to an agent of th» plaintiff, and replication that the agent took it without plaintiff's authority, and that it was returned to defendant. IIuxlcv v. Bell, 7 M. & G. 51. (n) If a blank stamp was accepted by the defendant and remitted to the plaintiff to 311 in his name, it should be so pleaded. Baker v. Jubbcr, 1 M. & G. 212. (o) It is necessary to show this, where de- fendant, as acceptor, was the primary debtor. See Simon v. Lloyd, 2 Cr., M. & R. 187, cited post, form 3, and note (t) ; Price v. Price, 16 M. & W. 232 ; and it must be proved also where the bill is not given in satisfaction of the debt. Goldshede v. Cot- trell, 2 M. & W. 20. Where a third person is a party to the bill, it is sufficient in the first instance to state the delivery and ac- ceptance, and it is not necessary to show that the bill is running or was paid by the defendant or indorsed away before action by the plaintiff. Mercer v. Cheese, 4 M. & G. 804. Such an averment would be proper where the bill was overdue before action. See form, &c. Maillard v. Duke of Argyll, 1 D. & L. 536 ; S. C. 6 M. & G. 40 ; Emblin v. Dartnell, 1 D. & L. 591 ; Wright v. Watts, 3 Q. B. 89 ; Belshaw v. Bush, 11 C. B. 191. For form, &c. that plaintiff has lost the bill, Crowe n. Clay, 8 Ex. 295 ; 9 Ex. 604. (p) It must appear that the instrument was a negotiable security, and that the plain- tiff took an interest in it. James v. Wil- liams, 13 M. & W. 828 ; S. C. 2 D. & L. 713. (g) It must be distinctly alleged that the bill was given by defendant and received by plaintiff on account, &e. Simon v. Lloyd, 2 Cr., M. & R. 187. A plea stating that 'the bill was taken " for and on account and in payment, &e." was held good on special de- murrer ; the court said that the word " pay- ment " did not necessarily import accord and satisfaction. Maillard v. Duke of Argyll, 1 D. & L. 536 ; S. C. 6 M. & G. 40. So the words "in discharge," similarly occurring in a plea of this nature, will be taken to mean " for and on account." Emblin v. Dartnell, 1 I). & L. 591. (r) See Atkinson v. Hawdon, 2 Ad. & E. 628, and note (o), supra.- (s) Semble, this allegation is necessary, because it would be a defence to an action for a debt, that a bill has been given for it by 350 PLEAS IN CONTRACT. BILL TAKEN. 3. Plea that the Defendant accepted a Bill not due, in Payment of the Debt, and for Plaintiff's Accommodation, and delivered it to the Plaintiff' without a Draiver's Name attached thereto. Simon v. Lloyd, 2 Cr., M. & R. 187 ; S. C. 3 Dowl. 813. (t) 4. That the Defendant indorsed a Bill to the Plaintiff on account of the Debt. That before this suit the defendant indorsed and delivered to the plaintiff a bill of exchange, bearing date [#c], drawn by the defendant (u) on and accepted by one E. F., and whereby the defendant requested the said E. F. to pay to him the defendant or order [two months] after the date thereof [add, if the fact be so, " which period had not elapsed when this action was com- menced "] the sum of £ , and the plaintiff then received [<$r. / proceed and conclude as in Form 1, p. 349]. (x) 5. Replication to last Plea, that the Bill is overdue and unpaid. That before this suit the said bill became due and payable, and was duly presented for payment, and was dishonored, of which the defendant had due no- tice, but did not pay the same, and the plaintiff at the time of the commence- ment of this suit held and now holds the said bill unpaid and unsatisfied, (y) 6. That Defendant indorsed to the Plaintiff on Account a Bill upon a Third Person, and ivas discharged from it by Laches, (z) That [S$c. ; proceed as in Form 4 to the end, showing that plaintiff took the defendant, and is outstanding in the hands the defendant, or otherwise renders the bill of another party. Per Parke B. Boydell v. worthless, he loses his remedy both on the Champneys, 2 M. & W. 435 ; and see Gold- bill and on the debt. Bridges v. Berry, 3 shede v. "Cottrell, lb. 20. The defendant Taunt. 130; Soward v. Palmer, 8 Taunt. being the acceptor is not entitled to present- 277 ; Camidge v. Allenby, 6 B. & C. 373; merit or demand of payment. If the de- Peacock v. Pursell, 14 C. B. N. S. 728.] fendant were the drawer or indorser of the (z) This must be specially pleaded, and bill, it should be averred that it was pre- cannot be relied on under turn assumpsit. sented for payment when due, and that de- Green v. Smithies, 1 Q. B. 798. It is suffi- fendant had due notice of dishonor. See cient in this plea to show merely that the forms, ante, 70-78. plaintiff took the bill on account; see ante, (t) The plaintiff replied that the bill re- 350, note (u) ; because it will be presumed mained in his hands unnegotiated and un- that it has operated as satisfaction for the paid, and without any drawer's name put to debt until the contrary be shown. Hebden v. it. Held, that the replication was no answer Hartjak, 4 Esp. 46; Mercer v. Cheese, 4 M. to the plea, and that the plea was good, at & G. 804 ; S. C. 2 Dowl. N. S. 619 ; check, hast as i; was not demurred to. Semble, it Griffiths v. Owen, 13 M. & W. 58. The was no( open even to a demurrer. The plea plaintiff by joining issue would deny that lie may easily be adopted to the case took the bill for and on account of the debt, where the defendant indorsed a bill to the but must reply specially that the bill was pre- plaintiff on account "of the debt. sented for payment when due, but was dis- (u) < »r, it a third person were the drawer, honored, of which the defendant had due no- aver that tart and state his indorsement to tice ; see form 5; so that the plaintiff was the defendant. See form, &c. Peacock v. restored to his former rights. Where, how- Pnrsell, 14 C. B. N. S. 728. ever, the defendant has a clear defence by (x) [A like plea, as to a bill drawn by a reason of the bill having been satisfied before third party, Peacock p. Pursell, 14 C. B.N. action, or the plaintiff having indorsed it 5. 728.] away, and not then being the holder, or on (_y) For form, &c. see Belshaw v. Bush, 11 account of laches in presenting it or giving C B. 191, and note (s), supra. [If the plain- notice of dishonor, it may be better at once tiff takes a bill indorsed by the defendant on to plead such matter also, upon the principle account of the debt, or merely as collateral of the above form. Some prolixity and de- securitv for the debt and it is dishonored, and lay may thus be avoided. he neglects to give notice of the dishonor to PLEAS IN CONTRACT. BONDS. 351 bill on account, and then proceed :] and the said bill became due before this 6uit, but was not duly presented for payment [or " but the defendant had not due notice of the non-payment thereof," according to the fact (a)]. BONDS. Obs. — See supra, " Annuity," " Bail Bonds," and post, " Illegal Considerations," " Fraud." If the defendant deny his execution of the bond, or rely on a variance, he must plead non est factum, ante, 285. If he rely on payment, he must plead accordingly. So, in the ease of performance of the condition in other cases. If there be a set-off it must be pleaded specially. So also illegality of consideration at common law or by statute must be specially pleaded. Alteration, ante, 298. Harden v. Clifton, 1 Q. B. 522 ; Davidson v. Cooper, 13 M. & W. 3 43. Cancellation. Alsager v. Close, 10 M. & \V. 57(i ; Gummer v. Adams, 13 L. J. Ex.40. " A party pleading in answer to any pleading in which any document is men- tioned or referred to, shall be at liberty to set out the whole or such part thereof as may be material ; and the matter so set out shall be deemed and taken to be part of the pleading in which it is set out." C. L. P. Act, 1852, s. 56. See Sim v. Edwards, 15 C. B. 240. 1. Creneral Issue Form. (6) Ante, 286. 2. Plea to a Count on a Money Bond of Payment according to the Condition (ad Dierri). (c) That the said bond was and is subject to a condition thereunder written, whereby the said bond was to become void upon payment of £ , and in- terest on the same at £ per cent, per annum, on the day of , A. D. .* And the defendant on the said day paid to the plaintiff the said sum of £ , with interest as aforesaid, according to the said condition. 3. To a like Count, Plea of Solvit post Diem, (d) As in last form to the asterisk.'] And the defendant, after the said day, and before this suit, paid to the plaintiff the said sum of £ , with all interest then due thereon. (a) Or, "that the said bill, &c. was duly (b) Non est factum denies only the making paid by the said E. F. when due ; " or, if of the bond. Ante, Obs. 285, 286. paid afterwards, see form 18, ante, 336; or (c) See statute of Anne, &c. cited, ante, if the plaintiff altered the bill, show that 87, 88, Obs. Where the declaration is on a fact. See ante, 338, forms 21, 22; Alder- bond and assigns a breach, the plea should son v. Langdale, 3 B. & Ad. 660; Atkinson merely negative such breach, unless there v. Hawdon, 2 Ad. & E. 628. In the latter be matter in confession and avoidance. To case it was held, that though plaintiff alter an action on a bond conditioned to pay and thus avoid a bill accepted by defendant money on demand, the defendant pleaded and drawn by plaintiff for goods sold, plain- no demand, and to that plea a replication tiff may yet sue for the price. Plea, that that there was a demand, was held good, the plaintiff kept a bill delivered to him an Thome v. Jenkins, 12 M. & W. 614, where unreasonable time before presentment for see a form. acceptance. Straker v. Graham, 4 M. & W. {d) See the preceding form, and note 722. If a creditor who holds a bill as col- thereto. The defendant may plead as to lateral security for a debt, by his laches part payment in satisfaction post diem, un- •enders the bill worthless or deteriorated in der 4 &S Anne, c. 16, s. 12 (wdiich see ante, value, this has the same effect, as between Obs. 87). Husband v. Davis, 10 C. B. 645; the debtor and creditor, as payment of the but see contra, Aahbee v. Pidduck, 1 M. & bill. Peacock v. Pursell, [14 C. B. N. S. W. 654 ; Wbrthington v. Wyley, 3 Bing. N. 728.J C. 454; Marriage d. Marriage, i C. B. 761. 352 PLEAS IN CONTRACT. BONDS. 4. Plea of Set-off to an Action on a Bond, (e) As in Form 2 to the asterisk.'] And at the commencement of this suit there was truly and justly due from the defendant to the plaintiff upon the said bond according to the said condition thereof £ , (f) for principal and interest. And the plaintiff at the commencement of this suit was and still is indebted to the defendant in an amount equal to the plaintiff's claim in respect of the said sum of £ for [state the subject-matter of the set-off, as post, " Set-off"], which amount the defendant is willing to set off against the plain- tiff's claim. 5. Plea of Release of a Bond. (#) Post, " Release." 6. That Bond was delivered merely as an Escrow. Murray v. Earl of Stair, 2 B. & C. 82. 7. Plea that Bond was made in France, and was bad because the Law of France had not been complied with. Benham v. Earl of Mornington, 3 C. B. 133. 8. Plea of Payment into Court. (K) As in Form 2 to the asterisk.] And the defendant brings into court £ [_ principal and interest], and says that the said sum is enough to satisfy the plaintiff's claim in respect of the matter herein pleaded to. 9. To Debt on a Bond within Statute 8 1 , where the subject is gence of himself or his servants. Hinton v. fullv discussed, and Brenl v. Midland Ry. Dibbin, 2 Q. B. 646. See Chit. & Temple, Co. 33 L. -J. Ex. 187. If the goods are de- 51, 82. By section 8, the carrier (ante, 95) clared, it is the carrier's duty to demand the is liable for loss arising from the felonious extra charge; audit' he neglects to do so, acts of servants in his employ. Great he is Liable for loss or injury, although the Western Ry. Co. v. Rimell, 18 C. B. 575 j extra charge is not tendered. Behrens v. Metcalfe v. London, Brighton & South Great Northern Ky.Co. 6 H. &N. 366. The Coast Ry. Co. 4 C. B. N. S. 307 ; where see Btatute relates only to carriers by land ; but a form of replication, that the loss arose when a carrier is so partly hy land and partly from the felonious acts of the defendants by sea, the statute protects him, if the loss servants. or injury occur during the land carriage. ■' PLEAS IX CONTRACT. CARRIERS. 357 creased charge nor any engagement to pay the same was accepted by the per- son receiving the same. 6. Replications thereto. The replication may be~\, " that the goods were not [jewelry] as alleged within the meaning of the act " [that is, if the declaration do not so describe them']; or, 2, "That at the time the said goods were delivered at the said office, there was not affixed in legible characters, in a public and conspicuous part thereof, the notice in the plea mentioned, as therein alleged ; " or, 3, " That the value and nature of the said goods were, at the time of the delivery there- of at the said office, declared by the plaintiff, who delivered the same, and that the increased charge was then paid ;" or, 4, " That an engagement to pay the increased charge was then accepted by the person receiving the same." (u) Or the plaintiff" may reply, under the 8th section of the carriers' act ; see ante, 95, Obs. ; 5, " That the loss [or loss and injury] of the said goods was occa- sioned by the felonious act of the defendant's servants, and not otherwise." (x) 7. That the Goods were carried under a Special Contract, (j/) That the said goods were delivered to and received by the defendants to be (u) Forms, Boyce v. Chapman, 2 Bing. N. C. 222 ; Metcalfe v. Loudon, Brighton & South Coast Ey. Co. 4 C. B. N. S. 307; Machin v. London & South Western Ey. Co. 2 Ex. 417. (x) The carriers' act (1 W. 4, c. 68, s. 8) provides that nothing contained in it is to protect the carrier from the felonious acts of his servants ; therefore the above replica- tion, without alleging negligence on his part, is sufficient where the carrier relies on the statute as a defence. "The rule is, un- der the statute, felony by a servant is a suffi- cient answer to the defence set up by the carrier, and negligence has no effect oneway or the other. Where the defence is inde- pendent of the statute " (i. e. under a special contract), "negligence alone is a sufficient answer." Per Jervis C. J. Great Western Ev. Co. v. Eimell, 18 C. B. 57; Metcalfe v. London & Brighton Ey. Co. 4 C. B. N. S. 307. (y) By the railway and canal traffic act, 17 >!c 18 Vict, c. 32, s. 7 (which see at length, ante, Obs. 96), no general notice given by a railway company shall be valid in law for the purpose of limiting its common law lia- bility as carriers ; but such common law liability may be limited by just and reasona- ble conditions embodied in a special written contract signed bv the owner of the goods, nr Minn' nut' on his behalf. See Peek v. The North Staffordshire Ev. Co. [El., Bl. & El. 958; 10 H. L. Cas. 473;] Simons v. Great Northern Ey. Co. 18 C. B. 805 ; M'Manus v. The Leeds & Yorkshire Ev. Co. [4 H. & N. 327; ante, 96 ; 1 Chitty Contr. (11th Am. ed.) 691 et scq. and notes.] It is necessary, therefore, to consider in each case whether the conditions embodied in the special contract are just and reasonable. That is a question for the judge at nisi prius in the first instance, but his decision may be reviewed by the court. See Lewis v. Great Western Ey. Co. 5 H. & N. 867 ; Beal v. South Devon Ey. Co. 5 H. & N. 875 ; affirmed in exchequer chamber, 21st June, 1864. In Simons v. The Great Western By. Co. 18 C. B. 105, a condition that the company should not be responsible for loss or damage from any cause whatso- ever to goods conveyed at a special mileage rate, was held reasonable. "But then, as it seems, to bring a case within this principle, it must appear that the customer really had an alternative; that he had power, if he pleased, to have sent his goods at the ordi- nary rates and on the ordinary terms as to liability, and having that option, elected to send them otherwise." Per Blackburn, in Peek v. North Staffordshire Ey. Co. [El., Bl. & El. 958; 10 H. L. Cas. 473.] A condi- tion that the company would not under any circumstances be liable for loss of market or other delay arising from detention, has been held reasonable. White v. The Great West- ern Ey. Co. 2 C. B. N. S. 7. " No claim for deficiency, damage, or detention shall be allowed unless made within three days after delivery of the goods, nor for loss unless made within seven days after the time when they should have been delivered ; " and " the company will not be answerable for the loss or detention of any goods untruly or incorrectly described or declared in the declaration or receiving note furnished by the company," have been held just and rea- sonable. Lewis v. The Great Western By. Co. 5 H. & N. 867 ; [1 Chitty Contr. (11th Am. ed.) 693. See Southern Express Co. v. Caperton, 44 Ala. 101 ; Southern Express Co. v. Crook, 44 Ala. 468 ; Wolf o. Western Union Telegraph Co. 62 Penn. St. 83.] So, 358 PLEAS IN CONTRACT. CARRIERS. carried under a special contract signed by the plaintiff [or " by A. B. on be- half of the plaintiff"], and containing certain just and reasonable conditions, and among others that [here set out the necessary conditions]. And [state facts showing the conditions to be an anstoer]. 8. Pica to an Action for not delivering Goods, that the Defendants could not ascertain to whom they were to be delivered. That the plaintiff delivered the said goods to the defendants, directed and to be delivered at B. to a certain person there, to the defendants unknown, without any information to the defendants, at any time, whereby the defend- ants could ascertain who the said person was, or where in B., or elsewhere, the said goods could be delivered to him ; and the defendants by reason of the premises not having been able to ascertain who the said person was, or where the said goods could be delivered to him, and the said person having made no application for the same, the defendants, without any default on their part, have been unable to deliver, and have not delivered, the said goods, which is the alleged non-delivery thereof in the declaration mentioned. a condition that the company shall not he responsible under any circumstances for loss of market, or other" loss or injury arising from delay or detention of trains, exposure to weather, stowage, or from any cause whatever other than gross neglect or fraud, was held reasonable. Beal v. The South Devon Ry. Co. 5 H. & N. 875 ; affirmed in exchequer chamber, 21st June, 1864. A condition " that the company will not be lia- ble in any case for loss or damage to any horse or other animal above the value of £40, or any dog above the value of £5, unless a declaration of its value, signed by the owner or his agent at the time of booking, shall have been given to them ; and by such decla- ration the owner shall be bound, the com- pany not being in any event liable to any greater amount than the value so declared. The company will in no case be liable for injury to any horse or other animal, or dog, of whatever value, when such injury arises wholly or partially from fear or restiveness. If the declared value of any horse or other animal exceed £40, or any dog £5, the price of conveyance will, in addition to the regu- lar fare, be after the rate of £2 10s. per cent., or 6d. per pound upon the declared value above £40, whatever may be the amount of such value, and for whatever distance the horse or other animal is to be carried," is n asonable. Harrison v. The London, Brigh- ton & South Coast Ry. Co. [2 B. & S. 122, 152.] So, it was held reasonable for a com- pany to make a condition that the company is to be held free from all risk or responsi- bility, in respect of any loss or damage to c it tic arising in the loading or unloading, from suffocation, or from being trampled on, bruised, or otherwise injured in transit, from . N. S. 45; that there was delay in the (/) See Crow v. Tulk, 8 Q. B. 467; 15 arrival of the ship at the port of loading, L. J. Q. B. 183. Another form, Barrick v. whereby the object of the voyage was fru's- Buba, 2 C. B. N. S. 563 ; 26 L. J. C. P. 280. trated; Clipsham v. Venue, 5 Q. B. 265; (???) See, also, for forms and law, Avery Tarrahochia v. Hickie, 1 H. & N. 183; v. Bowden, 5 El. & Bl. 714 ; 26 L. J. Q. B. breach of warranties in the charter-party 3 ; Esposito v. Bowden, 4 El. & Bl. 963 ; 7 as to the then place of the ship; Ollive v. lb. 763. [Plea that the liability of the char- Booker, 1 Ex. 416 ; that the ship was not terer was to cease on loading a cargo worth classed as " A 1 " at Lloyd's as warranted the freight, on which the captain was to have bv the charter-party ; Hurst v. TJsborne, 18 a lien. Bannister v. Breslauer, L. R. 2 C. P. C. B. I 14 ; Routh v. Maemillan, 2 H. & C. 497; Oglesby v. Yglesias, EL, Bl. & El. 933; 750 ; that the ship was not of the size stipu- Milvain v. Perez, 3 El. & Bl. 496. Plea to lated for in the charter-party; Windle v. action 'for freight to be advanced on sailing Barker, 25 L. J. Q. B. 349; Pust v. Dowie, of ship, that the ship did not sail pursuant 5 B. & S. 20 ; that the ship was not tight, to the charter-party. Thompson v. Gillespy, staunch, and strong, as agreed in the charter- 5 El. & Bl. 209. Plea to count for freight, party, whereby the object of the voyage was that the plaintiff, the ship-owner, was not frustrated. Tarrahochia v. Hickie, 1 H. & ready and willing to deliver the cargo. tf. 183. See Taylor v. Clay, 9 Q. B. 713.] Paynter v. James, L. R. 2 C. P. 348.] (k) Schilizzi v. Deny, 4 El. & Bl. 872 ; PLEAS IN CONTRACT. CIRCUITY OF ACTION. 363 Dbs. 704; [ante, 115, and note (r); Howes v. Austin, 36 HI. 396; Pack v. Thomas, 18 Sm. &M. 11; Willetts v. Paine, 43 111. 432; 3 Kent, 88 ; Mohawk Bank v. Broderick, 10 Wend. 304; S. C. 13 Wend. 133; Keene v. Beard, 8 C. B. N. S. 372, 381 ; Smith v. Miller, 43 N. Y. 171. A person not a party to a check, received on account of his debt, is discharged by a failure to present it within a reasonable time, if his position is thereby altered for the worse. Hopkins v. Ware, L. R. 4 Ex. 2G8; Smith v. Mercer, L. R. 3 Ex. 51.] So, a country banker, who receives a check from a customer for presentment upon another country banker not resident in the same town, is not bound to transmit it for presentment by the post of the day on which he receives it, but has until post-time on the next day to do so. Hare v. Henty, 10 C. B. N. S. 65. And see, as to presentment by post and notice of dishonor, Bai- ley v. Bodenham, 16 C. B. N. S. 288. The 19 & 20 Vict. c. 25, enacts that " In every case where a draft on any banker made payable to bearer or to order on demand, bears across its face an addition in writing or stamped letters, of the name of any banker, or of the words ' and company,' in full or abbreviated, either of such additions shall have the force of a direction to the bankers upon whom such draft is made, that the same is to be paid only to or through some banker, and the same shall be payable only to or through some banker." Under that statute it was held that the crossing was no part of the check, but only an independent addition, and that therefore an alteration of it was no forgery; therefore, where the crossing had been erased, and the bankers had paid it across the counter without negligence on their part, it was held that the payment was authorized, and that the drawee could not recover from them. Simmonds v. Taylor, 4 C. B. N. S. 463. It was then enacted by 21 & 22 Vict. c. 79, s. 1, " That the crossing was to be deemed a material part of a check, and that a banker is only to pay it to the banker whose name is crossed on it, or if crossed without a banker's name, then only to a banker. And the lawful holder of an uncrossed check or crossed ' and Co.' may cross it with the name of a banker (s. 2). Persons obliterating, adding to, or altering the crossing, &c. with intent to defraud, are declared guilty of felony (s. 3). The banker is not to be responsible for paying a check which does not plainly appear to have been crossed or altered (s. 4)." A check is within the bills of exchange act. 18 & 19 Vict. c. 67, ante, 71; Eyre v. Waller, 5 H. & N. 460; 29 L. J. Ex. 246. [CIRCUITY OF ACTION. Obs. — Whenever the rights of the litigant parties are such that the defendant would be entitled to recover back from the plaintiff the same amount of dam- ages which the plaintiff seeks to recover, the defendant may plead the facts which constitute such right as a defence, for the purpose of avoiding circuity of action. Turner v. Davies, 2 Wms. Saund. 150; and see lb. note (2), where pleas held good in avoidance of circuity of action are collected; Charles v. Altin, 15 C. B. 46; Cannop v. Levy, 11 Q. B. 769; Schloss v. Heriot, 14 C. B. N. S. 59. A claim for unliquidated damages cannot be so pleaded, where the measure of damages is not necessarily identical in both cases. Charles v. Altin, supra; Minshull v. Oakes, 2 H. & N. 793; Alston v. Her- ring, 11 Ex. 822; Jackson v. Isaacs, 3 H. & N. 405; Dakin v. Oxley, 15 C. B. N. S. 646. A covenant or agreement not to sue for the same cause of action may be pleaded in bar to avoid circuity of action. It operates between the parties to the covenant or agreement as a release of the cause of action, and may be so pleaded. 2 Wms. Saund. 47 gg, 15, note (2); Ford v. Beech, 11 Q. B. 852, 871. But a covenant not to sue one of two joint debtors, does not operate as a release of the other ; Dean v. Newhall, 8 T. R. 168; Hut- ton v. Eyre, 6 Taunt. 289; Willis v. De Castro, 4 C. B. N. S. 216; and a release in terms of one of two joint debtors, reserving all remedies against the other, amounts only to a covenant not to sue and not to a release. Willis v. De Castro, supra. A covenant or agreement not to sue for a limited time cannot be pleaded. Thimbleby v. Barron, 3 M. & W. 210 ; 2 Wms. Saund. 364 PLEAS IN CONTRACT. COMPOSITION WITH CREDITORS. Obs. 150 a; unless accompanied by a proviso that it may be pleaded in bar to an action brought during the time. Walker v. Nevill, 3-1 L. J. Ex. 73; Cor- ner v. Sweet, 35 L. J. C. P. 151. Plea to an Action by Executors, that the Testator contracted to in- demnify the Defendant against the Causes of Action. Coimop v. Levy, 11 Q. B. 769.] COMPOSITION WITH CREDITORS. Obs. — If a creditor under an arrangement with the other creditors (not necessarily all) and the debtor accept or agree to accept part of his debt as a composi- tion or in full for his demand, his claim to the remainder is in law extin- guished, even although there be not any release by deed. Norman v. Thompson, 4 Ex. 755; Massey v. Johnson, 1 Ex. 241-255; Good v. Cheese- man, 2 B. & Ad. 328; Lewis v. Jones, 4 B. & C. 506; Harry v. Wall, 1 B. & Aid. 103; Tatlock v. Smith, 6 Bing. 339; [Dauchy v. Goodrich, 20 Vt. 127; Wells J. in Perkins v. Lockwood, 100 Mass. 249; Eaton v. Lincoln, 13 Mass. 424; Steinman v. Magnus, 11 East, 390.] A creditor who joins in a composition which purports that all the debts of the debtor are thereby set- tled and released, cannot by signing for part of his claim privately keep back and sue for the remainder ; Britten v. Hughes, 5 Bing. 460; and when a cred- itor releases a debt by executing a composition deed, he loses the right to retain a written instrument deposited by the debtor as a security for the debt; and if the debtor has previously accepted bills for the original debt, and the creditor has negotiated them, it is his duty to take them up at maturity. Cowper v. Green, 7 M. & W. 638; Mallalieu v. Hodgson, 16 Q. B. 689; 20 L. J. Q. B. 339 ; Hawley v. Beverley, 6 M. & G. 221. If bills be given for the composition, and there be a covenant not to sue the debtor until default in payment of them, the creditors are remitted to their original rights on such default. Leake v. Young, 5 El. & Bl. 955; 25 L. J. Q. B. 266. Any private agreement between the debtor and one of the creditors who professes to join in the general arrangement that the former, or a third person for him, shall pay a further sum of money or give a better or further security, is void as a fraud on the other creditors. Gibson v. Bruce, 5 M. & G. 399; [Daug- lish v. Tennent, L. R. 2 Q. B. 49 ; 2 Chitty Contr. (11th Am. ed.) 1050, et seq. /] Wilson v. Ray, 10 Ad. & E. 82; Cockshott v. Bennett, 2 T. R. 763; Jackson ». Lomas, 4 T. R. 166; Leicester v. Rose, 4 East, 371; Jackson v. Davison, 4 B. & Aid. 695, 697; Wells v. Girling, 1 B. & B. 447; Lewis v. Jones, 4 B. & C. 511, 515; Geere v. Mare, 33 L. J. Ex. 50; [2 H. & C. 339.] And if one creditor do make any such stipulation, the effect will be to destroy any security which may have been given to him even for the amount of the composition. Howden v. Haigh, 11 Ad. & E. 1032; Knight v. Hunt, 5 Bing. 432; Higgins v. Pitts, 4 Ex. 312, 324; [Case i\ Gerrish, 15 Pick. 50; Payne v. Eden, 3 Caines, 213; Wiggin v. Bush, 12 John. 306; Clark v. White, 12 Peters, 178; Trumbull v. Tilton, 21 N. H. 128.] A gratuitous payment, or an additional security made or given to a particular creditor after he has signed the composition deed, is not a fraud on the other creditors, provided it was not made or given in pursuance of a prior fraudulent agreement. Knight v. Hunt, 5 Bing. 432, 434. As to recovering back money paid to induce a creditor to sit. 1*3 ; [1 Chitty Contr. 271.] To constitute duress by imprisonment, the imprisonment must be unlawful and tortious. See Smith v. Monteith, 13 M. & W. 4-27: 14 L. J. Ex. 22; [Tilley v. Bonney, 11 Cush. 247; Soule v. Bonney, 37 Maine. 128; Stouffer v. Latshaw. 2 Watts, 167 ; Richardson v. Duncan, 3 N. H. 518; Taylor v. Cottrell, 16 111. 93; 1 Chitty Contr. (11th Am. ed.) 270, 271; Fisher v. Shattuck, 17 Pick. 252. So, to avoid acts done under menace of imprisonment, it must appear that the threat was of an un- lawful imprisonment. Alexander v. Pierce, 10 N. H. 494 ; Wilcox v. How- land, 23 Pick. 167 ; Worcester v. Eaton, 13 Mass. 371; Foss v. Hildreth, 10 Allen, 76, 80; Whitefield v. Longfellow, 13 Maine, 146 ; Eddy v. Herrin, 17 Maine, 338; Waller v. Cralle, 8B. Mon. 11.] Duress upon goods will not avoid a contract, for " the fear that goods may be taken or injured does not deprive any one of his free agency who possesses that ordinary degree of firmness which the law requires all to exert." Skeate v. Hale, 11 Ad. & E. 990; [1 Chitty Contr. (11th Am. ed.) 271, and note (q), 272; Robinson v. Gould, 11 Cush. 55.] But money extorted by duress of goods and paid un- der protest, to get them back, may be recovered as money had and received. "Wakefield v. Newbon, 6 Q. B. 276; Parker v. Great Western Railway Co. 7 M. & G. 253; [Oates v. Hudson, 6 Ex. (Am. ed.) 348, note; Chase v. Dwinal, 7 Greenl. 134; Alston v. Durant, 2 Strobh. 257; Elliott r. Swartwout, 10 Peters, 138; Baltimore v. Lefferman, 4 Gill, 425; Smith v. Readfield, 27 Maine, 145 ; Joyner v. School District in Egremont, 3 Cush. 567; Henry v. Chester, 15 Vt. 460.] As to a bill obtained by duress, see Duncan v. Scott, 1 Camp. 100, and plea, Stevens v. Underwood, 4 Bing. N. C. 655. A contract made under duress is voidable only, and may be ratified. 2 Inst. 483; 1 Po- thier, by Evans, 15; vide Cummins v. Mee, 11 Q. B. 112; [Ormes v. Beadel, 2 De G., F. & J. 333; Lewis v. Bannister, 16 Gray, 500. See, as to a surety in the contract, Fisher v. Shattuck, 17 Pick. 252.] [1. Answer of Duress in an Action on a Promissory Note. And as to the contract mentioned in the plaintiff's third count, the defend- ant says that at the time of its execution he was kept in imprisonment by the plaintiff, and executed the contract through the force of that imprisonment. 2. Plea that the Defendant was induced to contract by Duress of Threats. That he was induced to make the alleged promise [or " agreement," or " to execute the alleged deed," or, to an indebitatus count, " to contract the alleged debt "] by duress of the plaintiff, that is to say, by the plaintiff threatening the life of [or " to do bodily harm to "] the defendant unless he would make [or " execute," or " contract "] the same ; and the defendant then made the said promise [or "agreement," or "executed the said deed," or "contracted the alleged debt"] in fear that the said threats would be immediately carried into execution and to preserve his life [or "to avoid the said bodily harm"].] EQUITABLE PLEAS, REPLICATIONS, &c. Obs. — The C. L. P. Act, 1854, enacts, — JBy s. 83, " It shall be lawful for the defendant or plaintiff in replevin in any cause in any of the superior courts in which if judgment were obtained, he would be entitled to relief against such judgment on equitable grounds to PLEAS IN CONTRACT. EQUITABLE PLEAS, ETC. 371 Dbs. plead the faets which entitle him to such relief by way of defence and the saidco Urt lu ; ,vl,v ,.,„,,„*,„.,! to ,,.,.„ iv( . me i (|( . i( ., R . e J™J ™ d he provided that such plea sin 11 begin with the word. . for defence on\- ui able grounds,' or words to the like effect." eqmtaDie V t fV 7 he '• 1 i linti , ff "V^y. in answer to any plea of the defendant cat on S T "*£ I! 1 " 1 U,, '; n 6 S uitable ^«nd8, provided that such rep£ SS ^Jlefcffect? ^ ' '° r ^^ ° D 6< * uifcable *«»V « B ^L 8 ( 6 ;r Pr0 f Vk t 1 1 ed / aIWaySt 1 llatin Case ifc BhaU a PP ear to the court or any deaft w^th bv « ^t« 7 fT h equitabl 1 Pl - ea ° r e ^ table "*"«**» ™™?ll el w , fn7 ? °f aW S ? aS t0 d ° U8tice between fche Parties, it shall tern \ "5**.,°* JUdge t0 ° rder thc samu to be struck out, on such terms, as to costs and otherwise, as to such court or judge may seem reason- T1 tlH^!i; t , S , h n a r e 1 reStriCted I 1 ' 6 a PP lit!ation of ■&» 83d section to cases in which the plea ami decision and judgment of the court upon it will work out and complete all the equity that belongs to the matter to which the pea refers and do complete and final justice between the parties. Accon n. y an ' equitable plea must disclose matter upon which a court of equity would £rant E1.&B1. 277; [Buvelo t t:°Mi5ls 35lTiT e 3 h T e R f ?%■! 2 I-°n- T he 9° PP ? r MlneiV Co - 17 C - B - 5 ^ Drain ,. &££ l/ C B ] f!I F a t y - n^Vo & £ Ex - 3H - 38 ' Elliott '• Mason, 26 L. J Ex! hil? 'in S "' & !r y ' 3 C -, B - N - S - 320; and if the P lea is i» the nature of a ! Bis! I "! 116 C °r ^ that SOTt of conditional and manifold awa.d winch is in the nature of a decree in equity, and not a iudament at erldge J.""' ^^ ***"** * Gee * Smarfc ' « El. & »■• VlSf per Col - ^ndbnStfv W^ f T rCnt "^ r n - repai1 "' a P'ea of an agreement to sur- T Pa f? y P erformed ™*s not allowed, as the court could not compel the defendant to execute a surrender. Mines Royal Society v. Maanay ubi suv rtfeS^^ 1 d ? C1 ' e ? aDd injUncti ° n had beyn obtained i/'equtfn respect of the same subject-matter as the action, held bad. Phelps J Pro- thero ubi sup. A plea to an action on a bond, that the defendant was merely a surety, and was willing and had offered to pay all that was due upon having certa in collateral securities handed over to Mm, wS tht Plamtiff refused held bad. Wodehouse v. Farebrother, ubi sup. A plea of the pendency of an arbitration under an agreement of reference by wMch no act .on was to be brought between the parties, and the arbitrator had power Wd bad* °m o a d Tt^ 0011 ^ d6 A lared ° nWaS t0 be P ut an ei ^ " TlinXth 11 !'i a C °, PI f r Mines Co - uhi SU P- A P lea to an action on a bill at three months, dated the 12th July, that the bill oun issue, unless specially denied. 225; 1 Saund. 265, note (2). Evidence of (m) Com. Dig. Administrator, B. 1 ; this, Serle v. Waterworth, 4 M. & W. 9. Pleader, 2 D. 13; Plowd. 182; 2 Saund. Ordering funeral not sufficient, Camden v. PLEAS IN CONTRACT. EXECUTORS, ETC. 383 nor ever have been executors, nor is nor lias either of them bce*n " ] executor of tlic last will and testament of the said E. F., nor ever administered ["nor did either of them ever administer "] any of the goods or chattels which were of the said E. F. deceased, at the time of his death, as alleged, (o) 4. Never Indebted, (j.?) That the said E. F. in his lifetime never was indebted [if the declaration contain a count on a claim against the executor, state, " that neither the said E. F. in his lifetime, nor the defendant, as executor as aforesaid, ever was in- debted "] as alleged. 5. Plea by an Executor of Never Indebted, except as to Part ; Con- fession thereof ; and Plene Administrav.it. ( only liable for assets which actually come to his hands. Yardley v. Ar- nold, 1 Car. & M. 434. Tbe plaintiff may either have execution on his judg- ment, or proceed by action thereon, suggesting a devastavit. On issue joined on the above plea, it is incumbent on the plaintiff to prove affirmatively that defendant had. or might by due caution have had, assets before writ; Cooper v. Taylor, 6 M. & G." 789 ; and then the defendant must show a due admin- istration of assets, before the commencement of the suit, to the extent proved. See 2 Wms. on Ex. 1786 ; Stroud v. Dandridge, 1 Car. & K. 455. Where the action was in assumpsit, the plea admitted a debt, but not its amount ; otherwise when the action was in debt. 2 Wms. Ex. 1786. The defendant i* onlv liable to the amount of assets proved to be in his hands, though less than "the debt. Harrison v. Beccles, 3 T. R. 688 ; 2 Wms. Ex. 1790. If there be several executors defendants, who plead plene administravit jointly, it seems that the plaintiff may succeed against one only, who is shown to have assets. 1 Saund. 336, note ; 2 Wms. Ex. 1792 ; Parsons v. Hancock, 1 M. & Mai. 330. If one of several executors plead no assets, and be defeated, he alone is liable. lb. In Stearn v. Mills, 4 B. & Ad. 657, the inventory ex- hibited in the ecclesiastical court by an executor for the purpose of obtain- ing probate, was held not to be, generally, even prima facie evidence of his having received assets. It seems to have been considered by Park J. in that case, that where the inventory only described effects on a farm with which the executor was acquainted, it may he prima facie evidence, but that this is rebutted if it appear that no effects actually came to the executor's hands, though his co-executor has with his knowledge intermeddled with the property. See 2 Wms. Ex. 1781-1784. In the same case Littledale J. and Park J. appear to have entertained an opinion that a probate stamp is not prima facie evidence that the executor has received assets to the amount cov- ered by the stamp ; but the contrary is laid down in Foster v. Blakelock, 9 B. & C. 328. See Mann v. Long, 3 Ad. & E. 689. The probate is, at all events, evidence only of the smallest amount wdiich the stamp would cover. Curtis v. Hunt, 1 C. & P. 180. Outstanding specialty debts or judgments (or payments on account of such claims after action brought), must be specially pleaded, and cannot be set up on plene administravit. See 1 Saund. 333 a, note (8) ; 2 Wms. Ex. 1770 ; Oxenham v. Clapp, 2 B. & Ad. 314, per Little- dale J. Plene administravit in the following form may be pleaded to a judg- ment debt, without alleging that the judgment was not docketed. See 2 Wms. Ex. 901, 902 ; Hall v. Tapper, 3 B. & Ad. 655 ; Gaunt v. Taylor, 3 Scott N. R,. 700 ; 2 & 3 Vict. c. 10. Where a defendant, in an action against him as administrator, being under terms to plead issuably, pleads first, plene ad- ministravit, and secondly, his own bankruptcy, the plaintiff may sign judgment as for want of a plea ; the latter being a bad plea and not issuable. Serle v. Bradshaw, 2 Cr. & M. 148 ; 2 Dowl. 289, S. C. Plead never indebted, Form 1, if the debt can be successfully denied, otherwise not (ante, 383, note (p)).] That he has fully administered the goods and chattels which were of the said E. F. deceased, at the time of his death and which have ever come to the hands of the defendant as executor [or " admin- istrator "] as aforesaid to be administered, and that the defendant had not [if several defendants, state " the defendants had not nor had either of them "] at PLEAS IN CONTRACT. EXECUTORS, ETC. :'.S." the commencement of this suit, (r) or at any time since, nor has he [" nor have they, nor has either of them"] any (s) goods or chattels which were of the said E. F. at the time of his death, in the hands of the defendant as executor [or " administrator," or " executors," or " administrators "] as aforesaid to be administered. 7. Replication joining Issue and Award of Venire ; where the Debt is not denied, and the Plaintiff joins Issue upon the Defendant' 's Plea. (£) \_After joining issue, proceed:'] And inasmuch as the defendant hath not denied the said causes of action, or that the plaintiff ought to recover in tins action by reason thereof, the plaintiff prays judgment and his [" debt and " damages aforesaid to be levied of the eoods and chattels which were of the said E. F. at the time of his death ; but because it is not known what damages the plaintiff hath sustained in this behalf, or whether or not the defendant will be convicted upon the issue so joined between the parties, let the giving of judgment herein be stayed until the said issue is determined, and as well to try the said issue as to inquire what damages the plaintiff hath sustained by reason of the said premises, let a jury come [$•)], and the defendant's claim in respect thereof remains unsatisfied to the defendant; and the defendant further says that the said E. F. in his lifetime duly made and published his last will and testament in writing, and thereby constituted and appointed the defendant executor thereof, and afterwards the said E. F. died without revoking or alter- ing his said will as to the said appointment ; after whose death the defendant proved the said will; and the defendant further says that he hath fully admin- istered [Sfc; plene adm. prceter, as ante, Form 10, to the asterisk], which are not sufficient to pay or satisfy the defendant's said claim, and which he retains in his hands towards and in part satisfaction and payment thereof. 16. Replication thereto, Denial of the Debt retained for. (g 1 ) That the said E. F. was not indebted to the defendant, as in the said [ ] plea alleged. 17. Form of Judgment by Cognovit against an Executor. (V) And on [day of signing judgment] the defendant, by his attorney [or "in person"], says that he cannot deny the action of the plaintiff; nor but that the plaintiff is entitled to recover against him as executor [or " admin- istrator"] as aforesaid £ , besides his costs of suit; and hereupon the plaintiff prays judgment for the said £ ■ so acknowledged, together with his costs aforesaid ; therefore it is considered that the plaintiff do recover against the defendant as executor [or "administrator"] as aforesaid the said £ , in form aforesaid acknowledged, and also £ for his costs of suit by the court here adjudged to the plaintiff, which said moneys in the whole amount to £ , to be levied of the goods and chattels which were of the said at the time of his death in the hands of the defendant as executor [or " administrator "] as aforesaid, to be administered if he hath so much thereof in his hands to be administered, and if he hath not so much thereof in his hands to be administered, then £ , being for the costs aforesaid, to be levied of the proper goods and chattels of the defendant. 18. Plea to an Action by an Executor, that the Testator died before breach of the Agreement sued on. Wentworth v. Cock, 10 Ad. & E. 42. (o) A rightful executor, but not an exec- admit the debt, or that there are not assets utor de son tort, may retain for his own for him. debt, it not being of an inferior degree to (p) A debt of equal degree with that sued that sued for. See 2 Wms. E'xors (7th ed.), for must be shown. For form of pleading a 10,39 et seq. ; [Boyd v. Brooks, 34 Beav. 7.] retainer for a specialty debt, Jones v. Har- The retainer may be relied upon under plene vey, 4 Price, 89. administravit ; 1 Saund. 333, note (6); [2 \q) Or the plaintiff may reply assets tdtra Wms. Ex'ors (7th ed.), 1050 ;] but it is better the debt. A joinder of issue would traverse to plead it, as it may drive the plaintiff to every material allegation in the plea. (r) See Chitty's Forms, 9th ed. 696. 390 PLEAS IN CONTRACT. EXECUTORS, ETC. [19. Plea to an Action charging the Defendant for Rent as Assignee of the Term, that the Defendant hecame Assignee only as Execu- tor, and that the Premises yielded no Profit, and Plene Adminis- travit. («) That after the making of the alleged deed and during the term thereby- granted the said G. H. died possessed of the said demised premises, having first duly made his last will, and thereby appointed the defendant executor thereof : and the defendant afterwards as such executor duly proved the said will, and entered into the said demised premises, and became possessed thereof for the residue of the said term as such executor as aforesaid and not otherwise ; and the estate of the said G. H. therein did not at any time vest in the defend- ant by assignment otherwise than as such executor as aforesaid ; and the de- fendant has not at any time since the death of the said G. H. received or de- rived, nor could he during any part of that time receive or derive any profit from the said demanded premises, and the said demanded premises have not since the death of the said G. H. yielded any profit whatever ; and the de- fendant had not at the commencement of this suit, nor has he since had, nor has he. any personal estate or effects which was or were of the said G. H. in the hands of the defendant as executor as aforesaid to be administered. 20. Plea to a like Action, that the Defendant became Assignee only as Administrator, that the Premises yielded only $ , and Plene Administravit Prater. That after the making of the alleged deed and during the term thereby granted the said G. H. died intestate, possessed of the said demised premises, and, after the death of the said G. H., letters of administration of the personal estate and effects which were of the said G. H. were duly granted to the de- fendant [by her majesty's court of probate] ; and the defendant afterwards entered into the said demised premises and became and was possessed thereof for the residue of the said term as such administrator as aforesaid and not otherwise, and the estate of the said G. H. therein did not at any time vest in the defendant by assignment otherwise than as such administrator as aforesaid ; (s) For rent incurred in the lifetime of be no profits at all, he may so plead, and that the testator, the action must be brought he has no other assets, as in (2) ; if the prof- azainst the executor in his representative its cover a part only of the rent, that part character, and the judgment must be de bonis should be confessed, and the plea pleaded to • tatoris. For rent incurred after the death, the remainder, as in (3). Rubery v. Stevens, if the executor enters on the premises, the 4 B. & Ad. 241 ; Wollaston v. HakewiU, may either sue him as executor or 3 M. & G. 297; Hornidge v. Wilson, 11 charge him personally as assignee without Ad. & E. C45-C55 ; Hopwood v. Whaley, 6 naming him executorin respect of the per- C. B. 744 ; 18 L. J. C P. 43 ; 2 Wrns. Ex ors, ception of the profits. 2 Wins. Ex'ors, 1587 ; 1590 ; 1 Saund. 1, note (1 ). If the value is 1 Saund. 1, note (1). If the executor does less than the rent, and there is a deficiency not enter, he is still chargeable as executor, of assets, the executor may waive the lease. because he cannot so waive the term as not to Reid v. Lord Tenterden, 4 Tvrw. 118-120; be liable for the rent, so far as he has assets. 2 Wins. Ex'ors, 1591. The value is what the Where the executor is sued as assignee, he executor might have got by the exercise of cannot plead plane administravit; for the reasonable diligence. Hopwood w. Whaley, land being prima facu of more value than ubi sup. This qualification of the personal the rent, so* much of the profits as make up liability of an executor in respect of rent, the rent i- appropriated to the lessor, and does not extend to a covenant for repairs, •annot be applied to anything else. If there Tremeere v. Morison, 1 Bing. N. C. 89. and the defendant has not since the death of the said G. H. received or de- i. nor could he during any part of that time receive or derive, any profit from she said demised premises except to the amount of $ ; and the said premises have not since the death of the said G. H. die sai'i $ ; ind the defendant had not at the commencement of it nor has be since had. nor L jjiv personal estate or effects which was or were of the said G. H. in the hands of the defendant as admin- istrator as aforesaid to be admin:- rxcept the said rents and profi:- the amount of S ; and the defendant brings here into court the said $ Lovr. — -::':'.: : " - - - "' -- - L [2 IL & C. ~ :'.' : where held that the outlawry of the plaintiff on civil process is the subject of a plea in abatement. A felon is :.~Hker muwtmts and forfeits to the crown all his personal pr: of action accruing to him either before or after attainder. Bolloek r. Dod i . B. i Aid. 338. An 1 ~:-. if die wife of a felon die fearing property acquired i-'-'.^r :z.-c : z • '. .:'. z :: It r i z~~~ :.z 1 i: ' e"» - _■- : zz-. :-:-*- i~i z - -.-: :~z- m of kin of the wife- Coom Ifi Jar. » . i the proper - in the crown, norwithstandin? a conditional free par- don in a penal colony. Be T. Cinur rfemxre dates from the conviction. Whkaker Luatary settfement of personal property made by a felon before conviction, but a the felonious act violent and void as against the crown. Be Sanni es;^: S tars ^Vharton, 32 L. But an executor who, .i::-;T :_- : v s: .-■:? ? . r.'z Li :;-v:;:.- ; ; : v Li ez:::lr-i : --''i--. Qm t lkuiA . . L. J. P. 269. See :-. I " Bui right of a convicted person to sue and contract is o: - s- ' :■-: - ".-- - - : . ". . z\:.-- :- : : -: -- . ': / x - -.-•[ ; - ": _ ----.- C - : - • • -*- a, - _.; I . xad he may be sued on a contract made dt r'Srfeiture of a lease by conviction for felon Pritch- ard. 5 B. \ • ; > couTictkm :'-- : - 7i: !■::: & S S* p. 233. atr. (11th Am. ed.) 2*1, note (a 1 ). JPtea . - Fefomy.(t) '£• .:;;.. k :■. : .■: "i. l : i Aid .:* 7 r.*:-z.L?..-.y;z Ons. — See observations, w. and form 5. am.v. 141. JV"v» qypnyrw mereb/ >' ' - :~. : .: :':.-. ~:~ :z\a .:■!:. :z ;':.-. Lr-. ..Lr.«::;~ — ..» ev^r ~:. :•. 1: zz: Lstence or validity of the debt to be forborne be denied, the plea should be - dal. It is also nee ess > plead specially that the plaintiff did not for- bear, or that the defendant paid the moc - Isaac r. D±zz. - & B. 500 I.Q.1 See, ah :. note v 1. X.n Asmtmf . - r. and swpra. Obs. (*) A^- , ' For a form replvmg a pardon, see 3 Chit, on PL « r*e. PLEAS IX CONTRACT. FRAUD. 2. PU '. Denial of the Debt forborne. («) That he never was indebted to the i^laiutiff in the said sum of£ as alk-_ 3. Plea that Plaintiff did not forbear, $c. That the plaintiff did not cease to prosecute the said action [or "stay all proceedings therein"] as alleged. 4. Ph a '!■ nying that the Plaintiff had any Cause of Action against the Defendant, (x) That the plaintiff never had any cause of action against the defendant in respect of the subject-matter of the action brought as alleged, which he the plaintiff at the time of the making of the alleged promise well knew. FOREIGN ATTACHMENT. Obs. — See ante, " Attachment," Obs. 302 and 304; also Crosby v. Hetherington, 4 M. & G. 933; 12 L.J. C. P. 261. Quaere, whether a notice of attachment out of the lord mayor's court, is an answer to an order under the garnishee clauses of the C. L". P. Act, 1854. Newman v. Rook, 4 C. B. N. S. 434. And see, as to the effect of a notice, Pillot v. Wilkinson, 32 L. J. Ex. 201. FOREIGN JUDGMENT. See post, "Judgment." FRAUD. Obs. — " The term fraud (dolus) is applied to every artifice made use of by one person for the purpose of deceiving another." 1 Pothier, by Evans, 19 ; [2 Chitty Contr. (11th Am. ed.) 1038, 1039, and notes (/-) and (z).] Fraud gives a right to avoid a contract (ab initio) both at law and in equity. " Fraud and covin may in judgment of the law avoid every kind of act. Many instances are put in Fermor's case, 3 Co. 77," per Lord Mansfield. Bright v. Eynon, 1 Burr. 395 ; [2 Chitty Contr. (11th Am. ed.) 1035 ; Hoitt v. Holcomb, 23 X. II. 535]. But it is not necessary that the fraud should arise from either party personally, for the fraud of an authorized agent will vitiate a contract made on behalf of his principal, although he does not per- Bonally take anv part in the fraud. Udell i>. Atherton, 30 L. J. Ex. 336 ; [7 H. & N. 172 ; Barwick v. English Joint Stock Bank, L. R. 259 ; Proudfoot v. Montefiore, L. R. 2 Q. B. 511 ;] Doe d. Willis v. Martin; 4 T. R. 39; Fitzherbert v. Mather, 1 T. R. 12. See Cornfoot v. Fowke, 6 M. & W. 358 ; [1 Chitty Contr. (11th Am ed.) 281, note (I) ; 2 lb. 1036, and notes (h) and (/ ■): 1 Sugden V. & P. (8th Am. ed.) 2, and note (g), 250, and note (q) ; Wheelton v. Hardisty, 8 El. & Bl. 232, 260 : Bowman v. Caruthers, 40 Ind. 90, 91, and eases; Fitzsimmons v. Joslyn, 21 Vt. 129, 140-142.] But the party guilty of the fraud cannot take advantage of it, and it is solely at the option of the party aggrieved whether he will be bound or not. Murray v. Mann, 2 Ex. 538 ;" 17 L. J. Ex. 256; White v. Gordon, 20 L. J. C P. 166 ; [Whin- v. Hunter, 23 N. H. 128 ; Ayers v. Hewett, 19 Maine, 281 ; Taylor v. («) This plea admits the promise, but puts (x) Wade v. Simeon, 2 C. B. 548; 15 L. the plaintiff on proof of the original de- J. C. P. 114; [Hooper v. Bristol &c. Co. 35 mand. It would sometimes he necessary to L.J. C. P. 299 ;J and sec Cook v. Wright, traverse the allegation in the declaration ac- 1 B. & S. 559 ; Cooper v. Parker, 15 C. B. cording as it is framed. 822. PLEAS IN CONTRACT. FRAUD. 393 Obs. Weld, 5 Mass. 116 ; Woods v. Kirk, 28 N. H. 324.] Rut if, after the fraud is discovered, it is acquiesced in, the party aggrieved cannol take advantage of it. Campbell v. Fleming, l Ad. ,\: E. 40 ; Selway v. Fogg, 5 M. & W. The Deposit & General Life Company v. Ayscough, 8 El. & 111. 70 1 ; [Treat v. Orono, 26 Maine, -217; 2 Chitt \ Contr. (11th Am. ed.) 1037, and cases in note (o).] If both parties are guilty of fraud, neither can take advantage of it. Doe d. Roberts v. Roberts, 2 B. & Aid. 367 ; per Lord Tenterden, Jones v. Yates, 9 B. & C. 538 ; [Bessy v. Windham, 6 Q. I!. L66 ; Dyer o. Bomer, 22 Pick. 253; Reichart v. Castator, 5 Binney, 109; Thompson v. Moore, 36 Maine, 47.] Misrepresentation or concealment of a material fact, which it is the duty of the partv knowing it to disclose, amounts to fraud. Pidcock v. Bishop, 3 B. & C. 605; [Bramwell B. in Horsfall v. Thomas, 1 H. cS: C. 90, 100 ; Irvine v. Kirkpatrick, 7 Bell Sc. Ap. 186 ; Otis v. Raymond, 3 Conn. 413; Van Arsdale v. Howard, 5 Ala. 596; Paddock v. Strobridge, 29 Vt. 470 ; Hanson v. Edgerly, 29 N. H. 343 ; Sides v. Hilleary, 6 Hart. & J. 86 ; Matthews v. Bliss, 22 Pick. 48; Nickley v. Thomas, 22 Barb. 652.] Repre- sentations made by a man to induce another to enter into an agreement . which are untrue to his knowledge, will constitute fraud, but not if they are be- lieved at the time and afterwards turned out differently. Per Tindal C. J. Neeley v. Lock, 8 C. & P. 532. And "if an ignorant person be induced to execute an instrument, supposing it to operate [in one way] and it really operates in another, such instrument is invalid." Per Coleridge J. Doe d. Lloyd v. Bennett, 8 C. & P. 124. [Public company. Misrepresentation in prospectus. Kennedy v. Panama &c. Co. L. R. 2 Q. B. 580. See 2 Chitty Contr. (11th Am. ed.) 1035 et seq.}, and post, Torts, " Fraud." 1. Plea that the Agreement or Promise was obtained by Fraud. (y) That the defendant was induced to enter into and to make the said agree- ment [or " promise "] by the fraud of the plaintiff. 2. Plea of Fraud to an Action on a Specialty. (z~) That he was induced to execute the said supposed deed by the fraud of the plaintiff. 3. Plea that the Defendant's Acceptance to a Bill was obtained by the Fraud of the Plaintiff, (a) That he was induced to accept the said bill by the fraud of the plaintiff. (//) Fraud must be specially pleaded. R. holder, after he became aware of the fraud. 8, T. T. 1853. It has been generally con- The Deposit &c. Assurance Co. v. Ayscough, lidered that the particulars of the fraud 6 El. & £1. 761. There may be considerable need not be stated, but that this general risk in pleading the fraud specially. See form is correct, " because covin is secret, Tooke v. Tuck, 4 Bing. 227 ;S. C. 9B.& C. whereof by intendment another man can- 444. [Plea of fraud, stating the particulars. not have knowledge." 9 Coke Rep. 110; Canham v. Barry, 15 C. B. 597.] Plowd. 54 b. But in Connop v. Holmes, 2 (z) See Spencer v. Handley, 4 M. & G. Cr., M. & R. 720, Parke B. observed, " It is 414 ; also, Evans v. Edmonds, 13 C. B. 777 ; not clear that the authorities bear out that Raphael v. Goodman, 8 Ad. & E. 565 ; [Red- position to its full extent." Sed vide Rob- man v. Wilson, 14 M. & W. 476 ; on a con- BOn r. Luscombe, 2 1). & L. 859 ; Raphael v. tract of indemnity; Way v. Ilearne, 13 C. Goodman, 8 Ad. & E. 565 ; and see Hill v. B. N. S. 292 ; on a contract of guaranty ; Montague, 2 M. & S. 378 ; Mason v. Ditch- North British Ins. Co. v. Lloyd, 10 Ex. 523 ; bourne, 2 Cr., M. & R. 720; D'Aranda v. Lee v. Jones, 17 C. B. N. S. 482.] Houston, 6 C. & P. 511 ; Edwards v. Brown, (a) Form, Stone v. Compton, 5 Bing. N. •'? V. & ,]. 423. An order for particulars of C. 142. See ante, 345, note (z). As to what the fraud relied on may in most cases be amounts to obtaining a bill by fraud, see obtained. The plea of fraud in the usual Lewis v. Cosgrave, 2 Taunt. 2; Green v. lorin to the common counts is good, and Beavan, 3 Stark. 134 ; Archer v. Bamford, leave was refused to reply and demur. Law- lb. 175. ton v. Elmore, 27 L. J. Ex. 141. Share- TLEAS IN CONTRACT. FRAUDS, STATUTE OF. 4. Plea in an Action for Calls, that the Defendant was induced to },, . . , Shareholder by Fraud, and had repudiated the Con- tract. (6) That he was induced to become the holder of the said shares by the fraud of the plaintiffs, and that within a reasonable time after he discovered the fraud, and before he had received any benefit from or in respect of the said shares, he repudiated the .-aid shares and gave notice thereof to the plaintiffs, (c) ["). Plea that the Defendant was induced to contract by Fraud, and aftemvards repudiated the Contract. That he was induced to make the alleged contract [or " agreement "] by the fraud of the plaintiff, and within a reasonable time after he had notice of the -aid fraud, and before he had received any benefit under the said contract [or "agreement"] he repudiated and abandoned the same, and gave notice of his repudiation and abandonment thereof to the plaintiff. 6. Replication of Fraud and Repudiation to a Plea of a Bill of Ex- change given on account, or in discharge, of a Debt. That he was induced to receive the said bill as alleged by the fraud of the defendant, and within a reasonable time after he had notice of the said fraud, and before he had received any benefit from the said bill, the plaintiff repudi- ated the said bill and the receipt thereof by him, and refused to have or retain the same for and on account [or "in satisfaction and discharge"] of the said debt and the cause of action in respect thereof, and then gave notice thereof to the defendant, and delivered back [or " tendered and offered to deliver back"] the same to the defendant.] FRAUDS, STATUTE OF. Obs. — A defence founded on any section of the statute of frauds (29 Car. 2, c. 3) may be given in evidence under the general issue. Buttermere v. Hayes, 5 M. & W. 456 ; Eastwood v. Kenyon, 11 Ad. & E. 438 ; Reed v. Lamb, 6 Ex. 130; [Reuss v. Picksley, Q. R. 1 Ex. 342 ; Smith v. Neale, 2 C. B. N. S.67,] decided on the 4th section of the act ; Elliott v. Thomas, 3 M. %**■ in evidence under the general issue non as- )'{ i nte > 286. sumpsit. Taylor v. Hillary, 7 C. & P. 30 (&) bee Bacon v. Chesney, 1 Stark. R. To an action for not indemnifying against 192; 2 Stark. R. 426; Holt v. Hadley, 5 the fraudulent conduct of a clerk T ante King. 54 ; Chit, on Contr. in voc. This plea form 2, p. 138 ; defendant might plead that 1 be proper when the credit on which the plaintiff did not en^o-e the clerk &c we goods was actually supplied was a differ- and see Norton v. Powell 4 M & G 46~ ent credit from that stipulated for in the note (a). Plea to a declaration for not in- guaranty. Ihe defence could not be given denmifying for goods purchased by a prin- 398 PLEAS IX CONTRACT. GUARANTY. 3. Plea that the Credit was unreasonable. (J) That the defendant guarantied the payment of the price of goods to be sold and delivered by the plaintiff to the said E. F. upon the terms that the plain- tiff should Bel] ami deliver such goods upon a fair, reasonable, and usual credit; and that the plaintiff, after the defendant's promise, sold and delivered the ^aiix partners, and was in the habit of drawing short bills on London, without proof also that they so carried on their business as bankers, within the prohibited distance of sixty-five miles from the metropolis. Ransford v. Copeland, 6 Ad. & E. 482. So in Findon v. Parker, 11 M. & W. 6 75, where to an action on an attorney's bill, the defendant pleaded that the bill was in- curred for defending a tithe suit, which the defendant and others had agreed (contrary to the law of maintenance) to defend, it was held that a traverse of the illegality of the agreement put in issue the facts whether the different persons defending the suit had reasonable ground for believing that they had a common interest in it; for that if they had, they could not be guilty of maintenance. When the violation of a statute is a defence. See the judgment in Cope v. Rowlands, 2 M. & W. 157; Smith v. Mawhead, 14 M. & W. 452. Every contract the consideration for which is tainted with illegality, is void. And '• when the cause for which the engagement is contracted is repugnant to justice, good faith, or morals, the engagement and the contract containing it are null." Pothier on Obi. 43 ; [2 Chitty Contr. (11th Am. ed.) 971 et seq. and notes; Planters' Bank v. Union Bank, 16 Wallace, 483, 500 ; King v. Winants, 71 N. Car. 469; Whitaker v. Bond, 63 N. Car. 290; Blythe v. Lov- inwood, 2 Ired. 20; Ingram v. Ingram, 4 Jones, 188; Brooks v. Martin, 2 Wallace, 70; Sharpe v. Farmer, 4 Dev. & Bat. 122; McRea v. Atlantic & N. Car. R. R. Co. 5 Jones Eq. 395; Pearce v. Brooks, L. R. 1 Ex. 213.] Thus a contract may be illegal. 1. If contrary to public policy or morality. [2 Chitty Contr. (11th Am. ed.) 982 el seq. and notes; Union Bridge Co. v. Troy & Lansingburgh R. R. Co. 7 Lansing, 240.] 2. If con- trary to the special requirements of a statute. Cope v. Rowdands, 2 M. & W. 149; 6 L. J. Ex. 65; per Parke B.; Gas Light Co. v. Turner, 5 Bing. N. C. 666, 675; [2 Chitty Contr. (11th Am. ed.) 1001 el seq. and notes.] And when a contract is made on general considerations, one of which is illegal, the whole contract is void. Waite v. Jones, 1 Bing. N. C. 662; Shackell v. Rosier, 2 Bing. N. C. 634 ; [1 Chitty PI. 301, and note (w) and cases cited; 2 Chitty Contr. (11th Am. ed.) 973, and note (/•/), 1001, and note (£).] But the merely selling goods, knowing that the buyer will make an illegal use of them. i< not sufficient to deprive the vendor of his just right of payment; but, to effect that, it is necessary that the vendor should be a sharer in the illegal transaction. Hodgson v. Temple, 5 Taunt. 181 ; [Smith v. Godfrey, 28 N. H. 379; Hill v. Spear, 50 N. H. 253, 261, 262; M'Intyre v. Parks,"3 Met. 207; Kreiss v. Seligman, 8 Barb. 439; Tracy v. Talmadge, 4 Kernan, 162: Merchants Bank of New York v. Spalding, 5 Selden, 53.] The illegal- ity may be taken advantage of by either party. Ilolman v. Johnson, Cowp. 343 ; [Bailey v. Taber, 5 Mass. 296; Wheeler r. Russell, 17 Mass. 258. The law in such cases leaves the parties where it finds them. Ilorton v. Buffing- ton, 105 Mass. 400; Sampson r. Shaw, 101 Mass. 149. 150; King v. Green, 6 Allen, 139; Buck v. Albee, 26 Vt. 184; Foote v. Emerson, 10 Vt. 338; Dixon v. Olmstead, 9 Vt. 310; 2 Chitty Contr. (11th Am. ed.) 975. In Myers v. Meinrath, 101 Mass. 367, Wells J. said: " In such cases, the defence of illegality prevails, not as a protection to the defendant, but as a disability of the plaintiff."] PLEAS IN CONTRACT. ILLEGAL CONSIDERATION. 403 Obs. See Chiton Contr. "Illegal Contracts," "Maintenance;" ante, 307, note (<), and post. 1. Plea to a Bill of Exchange, that it was given in Pursuance of an Illegal Agreement between a Petitioning Creditor and a Bankrupt to abandon the Prosecution of the Fiat. (?/) Davis v. Holding, 1 M. & W. 159. 2. Plea to a Note, that it was given for Money lent to Game with, (z) Slegg v. Phillips, 4 Ad. & E. 852 ; Foot v. Baker, 5 M. & G. 335. 3. Plea to an Action by the Transferee of a Banker's Check, that it was given to an Intermediate Party on a Gr ambling Consideration, of which Plaintiff had Notice. Bingham v. Stanley, 9 C. & P. 375 ; S. C. 2 Q. B. 117. See form, ante, 429. 4. Plea to an Action for Money lent, that it was lent in furtherance of an Illegal Contract to abandon a Petition against the return of one A. B. to Parliament, and for other Illegal Considerations connected therewith. Coppock v. Bower, 4M.&W. 361. 5. Plea to a Declaration for not opening a Theatre according to Agree- ment, that the Theatre was within Twenty Miles of Westminster and London, and that it was not in Westminster, or any place where the Sovereign resided, and therefore was illegal under 10 Geo. 2, e. 28. Levy v. Yates, 8 Ad. & E. 129. 6. Plea to a Declaration for Work done, that it was done under an Illegal Contract, contrary to the Building Act. Stevens v. Gourley, 7 C. B. N. S. 99. 7. Plea to an Action for Use and Occupation, that the Land was demised to deposit Night Soil on, within certain Limits prohibited by a Local Act. (a) Flight v. Clarke, 11 M. & W. 155. 8. Plea to an Action on Contract, that the Goods were sold by Illegal Weights. (5) Jones v. Giles, 10 Ex. 119 ; 11 lb. 393 ; 23 L. J. Ex. 292. (y) Another form, Warner v. Haines, 6 C. (a) See Andeil v. Dawson, 4 C. B. 376. fe P. 666 ; and see ante, 319, form 7, and \b) See 5 & 6 W. 4, c. 63 ; Rosseter v. Chit, on Bills, 10th ed. 55. Cahlman, 8 Ex. 361 ; Hughes v. Humphreys, (z) See ante, 395, " Gaming." 3 El. & Bl. 954. 404 PLEAS IX CONTRACT. ILLEGAL CONSIDERATION. 9. Pha that a Promise to pay Money roas made to stifle a Prosecution for an Offence of a Public Nature, and Law. (c) Keir v. Leeman, [6 Q. B. 308; 9 Q. B. 371 ;] 13 L. J. Q. B. 259; and see Ex part. Critchley, 15 Law J. Q. B. 124 ; and Ward v. Lloyd, 1 D. & L. 763 ; [Fivaz v. Nicholls, 2 C. B. 501 ; Clubb v. Hutson, 18 C. B. N. S. 414.] 10. Plea that a Note was given to secure Money lent to satisfy Illegal Stock-jobbing Wagers, (d) Slegg v. Phillips, 4 Ad. & E. 852. 11. Plea that the Sale and Removal of Goods was illegal, because no Permit was taken out under the Excise Laws. Nicholson v. Hood, 9 M. & W. 365. 12. Plea to an Action for Work, $c. by a London Broker, that he was not licensed, (e) Cope v. Rowlands, 2M.&W. 149. 13. Plea of an Illegal Agreement to antedate the Indentures of a Sur- geon's Apprentice, in order to make it falsely appear that he had served Five Years. Prole v. Wiggins, 3 Bing. N. C. 230; and see Reg. v. Barmston, 3 N. & P. 167 ; S. C. 7 Ad. & E. 858. 14. Plea of Maintenance to an Attorney 's Bill. Findon v. Parker, 11 M. & W. 675, cited ante, 307, and note (t) ; Law, &c. Flight v. Leman, 4 Q. B. 883 ; Pechell v. Watson, 8 M. & W. 691. Em- bracery, Doe d. Williams v. Evans, 14 L. J. C. P. 237. 15. Plea to Action on a Bond, that it tvas given in Consideration of future Illicit Cohabitation. (/) That the said bond was executed and delivered to the plaintiff by the defend- ant in consideration of the plaintiff then agreeing unlawfully and immorally to cohabit and commit fornication with the defendant. [See Walker v. Perkins, 1 W. Bl. 517.] For other pleas of illegality, see Porritt v. Baker, 10 Ex. 759; Atten- borough v. London, 8 Ex. 661 ; Hamilton v. Grainger, 5 H. & N. 40 ; Ritchie v. Smith, 6 C. B. 400 ; [Hindley v. Marquis of Westmeath, 6 B. & C. 200 ; Pearce v. Brooks, L. R. 1 Ex. 213 ; Hilton v. Eckersley, 6 El. & Bl. 47.] (c) See Fivaz v. Nicholls, 2 C. B. 501. Friend v. Harrison, 2 C. & P. 584; but in (d) Sec Knight v. Fitch, 15 C. B. 566. no case is such a contract not under seal (e) See ante, 319. Also, Smith v. Lindo, valid. Beaumont v. Reeve, 8 Q. B. 483 ; 4 C. B. N. S. 395. Binnington v. Wallace, 4 B. & Aid. 650. As (/) It is necessary to plead this specially, to contracts for the support of illegitimate A bond under seal ^iven in consideration of children, see Crowhurst v. Laverach, 8 Ex. past cohabitation is valid. Hall v. Palmer, 3 208; Smithe v. Roche, 6 C. B. N. S. 223; Hare, 532 ; Nye v. Moseley, 6 B. & C. 132. Follitt v. Koetzow, 29 L. J. M. C. 128; [2 Aliter, if given in contemplation of future El. & El. 730.] cohabitation; Smith v. Griffin, 13 Sim. 245; PLEAS IN CONTRACT. INDEMNITY. 405 INCOME TAX. Obs. — See, generally, Chit. Contr. " Landlord and Tenant." When it can be de- ducted from rent, see Taylor v. Evans, 1 H. & N. 101. When it can be deducted from purchase-money payable by instalments, Foley v. Fletcher, [3 H. &N. 769;] 28 L. J. Ex. 100. See, also, Andrews v. Hancock, 1 B. & B. 37; Spragg v. Hammond, 2 B. & B. 59; Stubbs v. Parsons, 3 B. & Aid. 516. Plea of Payment of the Income Tax. (/*) Franklin v. Carter, 1 C. B. 750 ; 3 D. & L. 213. INDEMNITY, (g) Obs. — As to the effect of non assumpsit, and the necessity of denying the alleged consideration specially, see ante, 275-277. It is essential to plead specially that the defendant indemnified the plaintiff, &c. See form, infra ; and see the pleas, ante, p. 397, " Guaranty." To an action for not indemnifying plain- tiff for all moneys which plaintiff's agent received in his service, the defend- ant might traverse the receipt of the money by the agent, and in another plea state that the agent did account or pay over the moneys, &c. according to the fact. Ward v. Suffield, 5 Bing. N. C. 381. As to set-off, see post, " Set-off." 1. General Issue. That he did not promise as alleged ; (h) or That the alleged deed is not his deed, (i) 2. Plea to Form 1, ante, 152, that Defendant did indemnify the Plaintiff. (Je) That he did indemnify and save harmless the plaintiff from any loss or dam- age by reason of [" his said acceptance of the said bill of exchange," traversing the declaration according to the averments. See ante, 151. See form, &c. Groom v. Black, 2 M. & G. 567]. 3. Plea to an Action for Indemnity, Payment of a Certain Sum in Satisfaction, whilst the Damages were unliquidated. Field v. Robins, 8 Ad. & E. 90. 4. Traverse that the Plaintiff was damnified. (7) That the defendant was not damnified, as alleged. 5. Plea that Plaintiff was damnified by his own Wrong. White v. Ansdell, 1 M. & W. 348. [See Warre v. Calvert, 7 Ad. & E. 143, 155.] if 1 ) See Smith v. Humble, 15 C. B. 321. must prove that he was damnified, as alleged g) See forms of declaration, 151-157. in the declaration. See another form and h) Ante, 284. law, Jones v. Williams, 7 M. & W. 495. j) A £ te > 286 - (I) As to the plea of non damnificatus, see (k) bemble, that plaintiff upon this plea 1 Saund. 115, 116, note (1). 106 PLEAS IN CONTRACT. INFANCY. INFANCY. Obs. — Infancy must be specially pleaded. R. 8, T. T. 1853. As a general rule all contracts made by infants are void or voidable, except where the contract is for necessaries. Bac. Abr. Infancy J. 3. The contracts of infants may bo divided into three classes: 1. Those absolutely void, be- cause positively injurious to the interests of the infant, and which can only operate to his prejudice. And such a void contract, it would appear, is inca- pable of ratification, because a promise cannot revive that which never ex- • isted. Bac. Abr. Infancy J. 3. 2. Those which may be avoided or affirmed when he comes of age, because they air such as may inure to his benefit as an infant. Bac. Abr. Infancy, J. 8. Such contracts may be ratified on his coming of a. Bellord, ■'!-' L. J. C. 646. 647; although he cannot bind himself by contract to convey an estate vested in him as trustee. Il>. ; 1 Chitty Contr. 207.] As to the liability of an infant [or his tortious acts, see post, Torts, " [nfants." [1 Chitty Contr. (11th Am. ed.) 208, note (/'), 209, note O); Beni. Sales (1st Am. ed.), 22, note (1); 1 Chitty PI. 85, 188. An infant is liable for tort or fraud wholly unconnected with contract. Fitts v. Hall, 9 N. II. ill; Eaton ». Hill, 50 X. II. ".'-v. l'rrscntt r. Xnnis, 32 X. IL 101 | Walker v. Davis, 1 Gray, . 006; Baxter v. Bush, 29 Vt. 165; Hartfield v. Eloper, 21 Wend. 615; Wallace v. Morss, 6 Hill, 391 ; 2 Kent, 241; Lewis v. Littlefield, 15 Maine, 233.] 1. Infancy of Defendant, (m) And the defendant, by his attorney [or, if the defendant be still an infant, state "by E. F., admitted by the said court here as guardian (») of the defendant to defend for him, he being an infant within the age of twenty-one years "], says that at the time of the making of the said contract [or " promise," or "agreement," or "accepting the said bill"] (o) he was an infant within the age of twenty-one years. [la. Another Form in Answer to Action on Promissory Note. And the defendant comes and answers, as to the note mentioned in the plaintiff's second count, that at the time of making the same he was a minor under the age of twenty-one years.] (m) " Infancy " must he specially pleaded, ance of an infant by attorney is error, of [1 Chitty PI. 503.] Ths plaintiff's infancy which the defendant (but not the plaintiff) affords iio defence. When an infant's con- may avail himself by writ of error. 2 tract is not binding on him, Chit. jr. Contr. Saund. 117./', note (1), 212a, 4, 5 ; Bird v. Index, '• Infancy." When father liable for Pegg, 5 B. & Aid. 418; [1 Chitty PI. 444, necessaries furnished to his infant son, note (/•), and cases cited.] And the court Qrmston v. Newcomen, 4 Ad. & E. 909; will set aside an appearance entered for the Law v. Wilkins, 6 Ad. & E. 718; and 1 Cr., defendant (an infant) by the plaintiff, even M. & R. 710, note; Mortimore v. Wright, 6 after judgment. Stephens v. Lowndes, 14 L. M. & W. 482; Clements v. Williams, 8 C. & J."C. P. 229. In an action against two on P. 58. Form, &c. Burghart v. Angerstein, 6 joint promises, if one plead infancy and O. & P. 691, note; [1 Chitty Contr. (11th plaintiff enter a nolli prosequi as to him, he Am. ed.) 210 et sea., 21-"i, and note (/,■)] cannot recover against the other, his admis- Evidence, if the plaintiff deny the infancy, sion on the record being conclusive evidence post, note (p). An infant defendant is lia- that there was no joint promise. Boyle v. bletocosts. Tidd, 9th ed. 101. [As to lia- Webster, 17 Q. B. 950. See Gibbs v. Merrill, bility of infant, plaintiff for costs, sec 1 3 Taunt. .{07 ; Burgess v. Merrill, 4 Taunt. Chitty PI. 291, note (e).] An infant may 468, note (a), [The rale is otherwise in some plead infancy to part and another plea to the of the American states. So- Cutts r. Gor- rest of the claim. don, 13 Maine. 474 ; Hartncss r. Thompson, (») See Arch, by Chit. Ind. "Infancy;" 1 5 John. 160; Woodward >■ Xewhall, 1 l'i.-k. Saund. 117 g, note (1); Chit. jr. Contr. 500, 502; Tattle v. Cooper, 10 Pick. 288; As to the power of guardians, Gilbert a. Walmsley o. Lindenberger, 2 Kami. (Va.) Schwank, 14 L. J. Kx. 317. See ante, 14, 473; Alien v. Butler, 9 N't. 122; Collyer viote (a). A. prochein ami maybe removed l'artn. § 720, and notes; 1 Chitty PI. 50, if he become insolvent, unless there he no note (i/).\ other person who can be properly appointed. (o) |Sce fbrra in Harrison v. Cotgreave, 4 Lees v. Smith, 5 H. & N. 632. The appear- C. B. 562.] 408 PLEAS m CONTRACT. INFANCY. 2. Replication, Denial of Defendant's Infancy, (p} That the defendant, at the time of the making of the said contracts, was of the full age of twenty-one years, and not within the age of twenty-one years, as alleged. 3. Replication, that the Action is partly for Necessaries, and Nolle Prosequi as to the Remainder of the Demand. ('.>: ; Wells v. Wells, 6 Ind. 447.] The plaintiff may reply denying the infancy as to part, and as to the remainder of the claim that it was for necessaries or was con- firmed after full age, &c. See post, form 5. An infant purchaser of railway shares may, while under age, suspend his liability to pay calls until he is of age, by disclaiming the property in them altogether, or by showing that the contract for them was prejudicial to him ; if over age he can only by such dis- claimer defeat an action for calls. London & North Western Ry. Co. v. Michael, 5 Ex. 114. See, also, Cork & Bandon Ry. Co. v. Cazenove, 10 Q. B. 935; Dublin & Wicklow Ry. Co. v. Black, 8 Ex. 181 ; Newry & Enniskillen Ry. Co. v. Combe, 3 Ex. 364. (q) Form, &c. Burghart v. Angerstein, 6 C. & P. 692, note. As to the law on this subject, see Chit. jr. Contr. Index, " Infancy." The nolle prosequi is in general proper to a count on a bill of exchange or for money lent, or on an account stated, &c. (if in the declaration), because for such claims an in- fant is not liable. [1 Chitty PI. 606, 607.] (r) He need not, on issue joined on this averment, prove that they all were necessa- ries. Tapley v. Wainwright, 5 B. & Ad. 399, per Denman C. J. (s) Meaning of this. Peters v. Fleming, 6 M. & W. 43 ; post, note (/). (t) Or sometimes it may be better, instead of this nolle prosequi, to put the infancy in issue as to the remainder of the claim, if any doubt as to the fact; or plaintiff may pro tanto reply a new promise after twenty-one. It must be remembered, however, that after a nol pros, the plaintiff" can bring a fresh action for that part. Amor v. Cuthbert, 3 M. & G. 1; S. C. 1 Dowl. N. S. 160; post, " Nolle Prosequi." PLEAS IN CONTRACT. INSOLVENT ACT. 409 [3a. Another Form of Replication. And the plaintiff replies that he is ignorant of the fact, so that he can neither admit nor deny that the plaintiff was a minor, as stated in his answer, but leaves the defendant to prove the same. He further says, the articles mentioned in his bill of particulars were necessaries for the defendant, and suitable to his estate and degree.] 4. Rejoinder, that the Goods, ^c. were not Necessaries. (iC) And the defendant, as to the replication to the plea, so far as it relates to \_§c. as before], say that the said meat \jfyc.] were not, nor was any part thereof, necessaries suitable to the then degree, estate, circumstances, and con- dition of the defendant [nor was the said money so paid by the plaintiff, or any part thereof paid by him in the purchase of necessaries fit and suitable to the then degree, estate, and condition of the defendant], as alleged. 5. To a Plea of Infancy, that Defendant confirmed his Promise after he became of Age. (V) That the defendant, before this suit, and after he attained his age of twenty- one years, by a writing made and signed by him, ratified and confirmed the said contract [as in the declaration'] in the declaration mentioned. INSANITY. See post, " Lunacy." INSOLVENT ACT. (x) See the last edition of this work, pp. 332-335. (m) The usual course would now be to join plaintiff has to prove it, and defendant must issue upon the replication. On this issue it prove he was under age when he made such will be sufficient for the plain tiff to prove subsequent promise, or the contrary will be that the goods were proper for the defend- inferred. Barthwick v. Carruthers, 1 T. R. ant's rank in life. If he was supplied with 648 ; Hortley v. Wharton, 11 Ad. & E. 934. money aliunde, it will be for him to prove When the declaration contains counts, such it; Burghart v. Hall, 4 M. & W. 731; un- as the account stated, &c. which are not less the goods were of such a nature that properly for necessaries, and the defendant they are not prima facie necessaries, when has ratified the promise since he came of the onus of proof will lie on the plaintiff, age, it was left unsettled in Williams v. Brooker v. Scott, 11 M. & W. 67 ; Wharton Moor, 11 M. & W. 258, whether the ratifica- v. Mackenzie, 5 Q. B. 606 ; [Ryder v. Womb- tion should be replied, or whether the plain- well, L. R. 4 Ex. 32; Johnson v. Lines, 6 tiff should new assign. If the ratification or Watts & S. 80 ; 1 Chitty Contr. (11th Am. second promise did not correspond with the ed.) 195.] An infant widow is liable on her original promise, it would be safer to declare contract for her husband's funeral, though specially, stating the facts. See ante, " Lim- he left no assets. Chappie v. Cooper, 13 M. itations," form, p. 202. If the promise were & W. 252. ^ conditional, the declaration should, it seems, (v) See, in general, Chit. jr. Contr. Index, be framed specially thereon. "Infancy." The new promise must be in (x) By the bankruptcy act, 1861, ss. 19, writing, and signed by the infant himself. 20, the jurisdiction of the court for the relief 9 Geo. 4, c. 14, s. 5. And should be made be- of insolvent debtors ceased. It has not fore action. Thornton v. Ulingworth, 2 B. therefore been thought necessary to insert & C. 824. Letter dated after full age suffi- the forms applicable to the insolvent act, cient. Hunt v. Massey, 5 B. & Ad. 902. If but merely to refer to the former editions of the defendant traverse the new promise, the this work. 410 PLEAS IN CONTRACT. INSURANCE. INSURANCE. I. MARINE POLICIES. Obs. — See the declarations, ante, 166. If the policy is not under seal the general - ie non assumpsit puts in issue the subscription to the alleged policy by the defendant (R. 6, T. T. 1853), and also whether the policy was effected on plaintiff 's behalf, and the payment of the premiums by him; Sutherland v. Pratt. 11 M. & W. 296; Redmond v. Smith, 7 M. &" G. 457; S. C. 2 D. & L. 280; the affirmative of which the plaintiff would have to prove, and would bv so doing establish his case upon that plea. But non assumpsit does not deny the interesl : Stainbank v. Fenning, 20 L. J. C. P. 226 : [11 C. B. 51 ;] the commencement of the risk, the loss, or the alleged compliance with warranties; R. 1, T. T. 1853: such as unseaworthiness; Small r. Gibson, [16 Q. 15. 128;] 20 L. J. Q. B. 152; deviation (lb.), concealment, misrep- resentation. &c. These must be specially pleaded. R. 8, T. T. 1858. The non-compliance with a warranty should be pleaded specially. The follow- ing traverses will suffice to show the mode in which pleas in denial to such actions should be framed: the defendant might plead in addition to these denials, traverses that the goods were loaded on board, that they were placed on board the ship to be carried on the voyage, or that the ship was lost. Reid v. Rew, 2 Dowl. N. S. 543. See other traverses, Devaux v. Jan- son. 5 Birvj. N. C. 519. There should of course be a plea to the common count, if any. If the defendant be entitled to recover back the premium, it should be paid into court upon a plea of payment of money into court on the common count. See Park Ins. ; Marshall ; Hughes Ins. 439 ; Arnould Ins.; Duckett v. Williams, 2 Cr. & M. 348. As to getting the benefit of the payment into court on the common count in diminution of the damages on the count on the policy, see Carr v. Montefiore, 34 L. J. Q. B. 21. If the policy be under seal, the general issue will be non est factum. The averment of persons interested in accordance with 28 Geo. 3, c. 56, s. 1 (ante, 158). is a material averment and may be traversed. Bell v. Janson, 1 M. & S. 201. As to the mode of pleading by the London Assurance and the Royal Ex- change Assurance Companies, see Carr v. The Royal Exchange Assurance Corporation, 31 L. J. Q. B. 93; [1 B. & S. 956.] 1. Non Assumpsit. Ante, 284. 2. Non est Factum. Ante, 286. 3. Denial of Plaintiff's Interest in the G-oods when lost, (y) That the plaintiff (z) was not interested in the said goods [or "ship"] as alleged. 4. Denial that the G-oods were damaged or lost, (a) That the said cotton [or " ship "] was not [nor was any part thereof] dam- aged [or u lost"], as alleged. (y) See 19 Geo. 2, c. 37, s. 1 ; ante, 158; (z) When a person who has assigned his Pirn v. Reid, 6 M. & G. 1 ; Smith v. Rev- interest after insurance may sue, Povvles v nolds, 1 II. & N. 221, and form of plea. Innes, 11 M. & W. 10; a*s to loss before Proof that the contract for the goods insured policy effected, Sutherland v. Pratt, 1 M. & was verbal only and incapable of being en- W. 296. "orced, establishes this plea. Stockdale v. (a) See Dawson v. Wrench, 3 Ex. 359. Danlop, 6 M. & W. 224. PLEAS IN CONTRACT. INSURANCE. 411 5. That the Damage was an Average Loss within the Usual Exception in the Policy, (h) That the supposed loss of the said goods was an average loss under three pounds per cent, within the meaning of the said policy, and not a general average loss, and the said ship during the said voyage was not stranded. [5a. Answer, denying Loss to be total. And the defendants come and say that they deny, upon information and belief, that said loss was actually total, and they deny that any abandonment was made.] 6. Plea to a Declaration on an Insurance on a Ship ; Denial that it was lost by the Perils of the Sea, Spc. (6) Redman v. Wilson, 14 M. & W. 476. 7. That the Plaintiff did not incur the Expenses alleged, (a 7 ) That the plaintiff did not, in suing, laboring, or travelling for, in, or about the recovery of the said goods, or in preventing or recovering the loss of the said freight, expend the said sum of money, or any part thereof, as alleged. 8. That the Ship was not seaworthy, (e) That at the time of the commencement of the said risk (/) the said ship was unseaworthy. (b) See Corcoran v. Gurnev, 1 El. & Bl. 456; Stewart v. Steele, 4 M. & G. 669. Average loss on freight, Benson v. Chapman, 6 M. & G. 792. (c) Negligence in loading, which produces unseaworthiness, rendering it necessary to run the vessel on shore to prevent her sink- ing, is a loss by perils of the sea, so as to render the insurers liable as for a total loss. Redman v. Wilson, 14 M. & W. 476. {d) This plea applies where the policy contains a stipulation for the payment of these expenses, and the plaintiff declares for them. See Stewart o. Steele, 4 M. & G. 669. (e) This must be pleaded specially. Ante, 158, Obs. See another form, Redman v. Wilson, 14 M. & W. 476. As to the law, see Abbott on Ship, by Serjt. Shee; Maude & Pollock on Ship. Unseaworthiness by overloading. Weir v. Aberdeen, 2 B. & Aid. 320; Gould v. Oliver, 2 M. & G. 213. In time policies there is not an implied war- ranty that the ship is seaworthy at the com- mencement of the risk. The above plea would therefore be no defence on such a policv. Small v. Gibson, 16 Q. B. 128 ; 4 H. of L. 353; Michael v. Tredwin, 17 C. B. 551 ; [Capen v. Washington Ins. Co. 12 Cush. 517 ; Hoxie v. Pacific Mut. Ins. Co. 7 Allen, 211, 217; Jones v. Insurance Co. 2 Wallace, jr. 278.] And this is so whether the ship at the commencement of the risk be at sea on her voyage, or be at the date of the policy in a port about to sail where there are means of making her seaworthy. Fawcus v. Sarsfield, 6 El. & Bl. 192. But if she sail on her first voyage after the policy in an unsea- worthy condition, the underwriter is not lia- ble for repairs necessary, not by the perils of the sea, but by the bad condition of the ship at the commencement of the risk. lb. [It was held in a recent case in Massachusetts, that in a time policy on a vessel which at the commencement of the risk is in a foreign port, where full repairs may be made, there is an implied warranty of seaworthiness, both for port and in setting out therefrom. Hoxie v. Pacific Mut. Ins. Co. 7 Allen, 211. This case was argued with great learning and a full citation of authorities, and the opinion by Bigelow C. J. is able and exhaustive. But, in an earlier case, it was decided by the same court that there is no implied warranty of seaworthiness under a policy upon a ves- sel which is at sea at the inception of the risk. Capen v. Washington Ins. Co. 12 Cash. 517; Macy v. Mut. Mar. Ins. Co. 12 Gray, 497.] A plea that the plaintiff know- ingly, &c. sent the ship to sea in an unsea- worthy state is a good plea. See a form, Thomson v. Hopper, 6 El. & Bl. 172 ; 25 L. (/) The implied warranty of seaworthi- the crew. Per Patteson J. Hollingsworth v. i-ess refers to the commencement of the risk, Brodrick, 7 Ad. & E. 40. except where pilots are necessary as part of 412 PLEAS IN CONTRACT. INSURANCE. [Sa. Ansirrr denying Seaivorthiness. And the defendants come and say they deny, upon information and belief, that said ve~ - seaworthy for the voyage in said policy mentioned, at the inception of said voyage.] 9. Plea that the Ship improperly deviated. (#) That before the alleged loss the said ship was unnecessarily delayed in pros- ecuting the said voyage, and departed and deviated therefrom. [9,/. Answer that Vessel was not proceeding on Voyage insured. And the defendants come [#c], but deny, upon information and belief, that said vessel was lost while proceeding on the voyage in said policy described.] 10. Plea that Material Facts were concealed at the Time of effecting the Insurance. (K) That a material fact known to the plaintiff, and not known to the defendant, wa- concealed from the defendant, and was not communicated to him by the plaintiff, namely, that the ship had been aground, and was in the port of requiring repairs. 11. Plea of a Custom between the Insurance Broker and the Under- writers to settle the Loss by way of Discharge by the Defendant crediting the Broker with the Amount, (i) Stewart v. Aberdein, 4 M. & W. 226. J Q B. 240; 26 L. J. Q. B. 18 ; 27 L. J. Q. 227 ; Starbuck v. New Eng. Mar. Ins. Co. 15. 441 : [Michael v. Gillespy, 2 C. B. N. S. 19 Pick. 198; Cope v. New Eng. Mar. Ins. 627.] The mere fact of goods being stowed Co. 2 Met. 432, 439; 3 Kent, 288. This on deck, is not sufficient of itself to exempt duty to keep the vessel seaworthy is not, the underwriters ; Milvvard v. Hibbert, 3 Q. however, a technical warranty. See Capen B. 120; [1 Arnould (1st Am. ed.), 70 ; Lap- v. Washington Ins. Co. 12 Cush. 517,540; ham v. Atlas Ins. Co. 24 Pick. 1 ; Taunton Dabney v. New Eng. Mar. Ins. Co. 14 Allen, Copper Co. v. Merchants' Ins. Co. 22 Pick. 300,30*5.] A plea alleging unseaworthiness 108;] and they are liable for the wilful, but after the commencement of the risk and a not barratrous, act of the master and crew neglect to repair, must also show knowledge in rendering the vessel unseaworthv during and opportunity to repair. Hollingsworth v. the voyage by. throwing ballast overboard. Brodrick, 7 Ad. & E. 40. Seaworthiness is Dixon v. Sadler, 5 M. & YV. 405; S. C 8 M. a relative term depending on the nature of & \V. 895. See, also, Redman v. Wilson, the ship as well as of the voyage insured for. supra, and cases cited in that case. [Bic- Bureess v. Wickham, 33 L. J. Q. B. 17; card v. Shepherd, 14 Moore P. C. 471, 493; Bouillon v. Lupton, [15 C. B. N. S. 113; Thompson v. Hopper, 6 El. & Bl. 172, 181 ; Lane v. Nixon, L. R. 1 C. P. 412.] Bouillon o. Lupton, 15 C. B. N. S. 113, 139 ; (g) This must be specially pleaded. Ante, 1 Arnould Ins. (1st Am. ed.) 655, 656.- The 410, Obs. See form, &c. Lindsay v. Janson, great leading principle of the English doc- 4 H. & N. 699 ; Hamilton v. Sheddon, 3 M. & trine of seaworthiness is, that there is no W. 50, and a form of plea that the ship was implied warranty of seaworthiness except at employed on different purposes than those the commencement of the risk. On this mentioned in the policy. lb. As to the point the law of the American states is at law, sec Park Ins. ; Marshall ;_ Hughes, 180; variance with the English, and gives a wider Arnould. See Phillips v. Irvine, 7 M. & G. extent to the implied warranty. The rule 325, as to when delay is equal to deviation, under the American decisions, is that the (h) Forms, Russell v. Thornton, 4 H. & assured must not only have his vessel sea- N. 788; 29 L. J. Ex. 9; 30 L. J. Ex. 69; worthy at the commencement of the voyage, [Ellis v. Lafone, 8 Ex. 546 ;] Elkin v. Jan- but must keep her so, as far as it depends on son, 13 M. & W. 655 ; [Bates v. Hewitt, L. himself during the continuance thereof, and R. 2 Q. B. 595.] See Mackintosh v. Mar- at the commencement of all its subsequent shall, 11 M. & W. 116. For law, 1 Arnould stages. See 1 Arnould Ins. (1st Am. ed.) Ins. 584 et seq. 666; Paddock v. Franklin Ins. Co. 11 Pick. (i) See 1 Arnould Ins. 120; Sweeting v. PLEAS IN CONTRACT. INSURANCE. 413 12. Plea that the Voyage is illegal. Cunard v. Hyde, 27 L. J. Q. B. 408 ; 29 lb. Q. B. 6 ; [El., Bl. & El. 670 ; Wilson v. Rankin, 6 B. & S. 208.] 13. Plea of Cancellation of Time Policy. Baines v. Woodfall, 6 C. B. N. S. 657 ; 28 L. J. C. P. 338 ; [Xcnos v. Wickham, 13 C. B. N. S. 381.] 14. Plea that the Claim in the Policy sued on had been discharged by Payment of another Policy on the same Risk. Morgan v. Price, 4 Ex. 615; 19 L. J. Ex. 201; Bruce v. Jones, 33 L. J. Ex. 132. 15. Plea of a Custom that Underwriters are not liable to General Average on Account of Jettison of Timber stowed on Deck. Miller v. Titherington, 30 L. J. Ex. 217 ; [6 H. & N. 278.] 16. Plea that the Ship and Goods were lost by Perils from ivhich they were warranted free. Powell v. Hyde, 5 El. & BL 607 ; 25 L. J. Q. B. 65. II. FIRE POLICIES. 1. General Issue. Ante, 410. 2. Denial that the Goods were burnt, (k) That the said household goods, utensils [#c], were not burnt or destroyed by fire, as alleged. 3. That the Plaintiff would not produce Proofs of his Loss accordiug to the Policy. (V) That the plaintiff did not, although he was, after the alleged loss, and before this suit, reasonably required by the said company so to do, in or by his books of accounts or other proper vouchers, make proof of his alleged loss and dam- age, according to the conditions of the said policy. [See " Replication," Form 10.] 4. That the Plaintiff did not give Notice of the Loss. That the plaintiff did not forthwith give notice of the said loss to the de- fendants at their office [in Lombard Street], as alleged [or " according to the conditions of the said policy "]. Pearce [7 C. B. N S. 449; 9 lb. 534;] 29 by the conditions of the policy the plaintiff r. J " u V 2 ™- T ^ee also > Macfarlane v. was to make proof of the loss "without being Gianocopulo 28 L.J. Ex 72. required so to do, then of course the decla- (k)Ante, 170. norm denying plaintiff's ration must allege that he did so, and the loss by the fire, London & North Western plea should then traverse the fact. See Pirn Ry /„ C o l \S lyun ' ] EL & EL 652 - »• Reid, M. & G. 16. (/) bee Worsley v. Wood, 6 T. R. 710. If 414 PLEAS IN CONTRACT. INSURANCE. 5. That the Plaintiff did not give in an Account of his Loss to the Office. That the plaintiff did not, as soon as possible aftor the said loss [or "within (j a ya ,- i deliver in as particular an account of his said loss or damage as the nature of the case did admit, as alleged [or "according to the conditions of the said policy "]. G. PUa that the Defendants were induced to make the Policy by Fraud. That the defendants were induced to make the said policy by the fraud of the plaintiff. 7. That there was Fraud in Plaintiff's Account of the Loss. That after the said fire, and before this suit, the plaintiff, with intent to defraud the defendants, and to cause them to pay him a larger sum than the loss sustained on occasion of the said fire, made and delivered in to the defend- ant- a false and fraudulent account of the alleged loss and damage as and for such account as in the said conditions mentioned; in which said account he represented and stated that insured goods and property of him the plaintiff to the amount of £ had been burnt and destroyed by the said fire ; whereas the said loss and damage were of much less amount than the said amount of £ , as the plaintiff well knew. 8. Plea of Alteration of Risk not communicated to the Defendants, (rn) Pirn v. Reid, 6M.&G.1; 12 L. J. C. P. 299. 9. That the Plaintiff made a False Affidavit of his Loss. That the plaintiff, to support his claim for the loss and damage in the decla- ration mentioned, went before S. T., Esquire, then being one of the justices of the peace of our lady the now queen, sitting at the public office in Worship Street, in the county of Middlesex, and then made an affidavit in support of the said claim for the said loss and damage ; and that in the said affidavit so made by the plaintiff there was false swearing within the true intent and meaning of the tenth article of the printed proposals in the policy of insurance mentioned and referred to, that is to say, false swearing in this, to wit, that the plaintiff thereby then swore that the estimate or account annexed to the said affidavit contained, to the best of his knowledge and belief, a true and faithful account of the loss and damage sustained by him on his said household goods, utensils [$•£.], and on his fixtures, stock, and utensils, and that all of (m) See, also, Sillem v. Thornton, 3 El. & the effect of descriptive words in a policy, Bl. 868; Baxendale v. Harvey, 4 H. & N. see Smith v. Mechanics' & Traders' Ins. Co. 445, S. C. ; Baxendale v. Harding, 28 L. J. 32 N. Y. 399 ; Aurora Fire Ins. Co. v. Eddy, Ex. 2.36 ; Stokes v. Cox, 1 li. & X. 533 ; 25 55 111. 213; Blood v. Howard Ins. Co. 12 L. J. Ex. 291; 26 lb. Ex. 113; Glen v. Cush. 472, 474 ; Joyce v. Marine Ins. Co. 45 Lewis, 8 Ex. 607; [Williams v. New Eng. Maine, 168; Gilliat v. Pawtucket M. Ins. Mut. Fire Ins. Co. 31 Maine, 219 ; Houghton Co. 8 R. I. 282 ; May v. Buckeve Mut. Ins. 9. Manuf. Mut. Ins. Co. 8 Met. 114, 122; Co. 25 Wise. 291, 306 ; Stokes "v. Cox, 1 H. Crocker v. People's Mut. Fire Ins. Co. 8 & N. 533 ; Luce v. Dorchester Mut. Fire Ins. Cush. 79; Jones Manuf. Co. v. Manufact- Co. 105 Mass. 297; S. C. 110 Mass. 361.] urers' Mut. Fire Ins. Co. 8 Cush. 82. As to PLEAS IN CONTRACT. INSURANCE. 415 them were his own property and were in his premises, situate \jfyc-~] aforesaid, when the said fire happened, and were burned, lost, or destroyed by the said fire ; and that his real and just loss on the said household goods, utensils [$•> v III. PLEAS, &c. IN ACTIONS ON POLICIES ON LIFE, (n) 1. General Issue. Ante, 410. 2. Denial of Plaintiffs Interest in the Life insured, (o) That the plaintiff was not, at the time of the making the policy [or before or at the time of the death of E. F.], interested (p) in the life of E. F., as alleged. 3. Plea that the Declaration as to the Health of the Person whose Life was assured was false, (p) That the declaration in the said policy mentioned was untrue (q) in this, (n) Ante,^ 172. other, the above statute, permits him after (o) Shilling v. Accidental Death Co. 2 the death to recover from the company so H. & N. 42 ; 29 L. J. Ex. 266; 27 lb. 16; much of the sum insured and no more, as ante, 174, note (a). The statute 14 Geo. 3, c. his interest in the life extended to at the 48, s. 1, enacts " that no insurance shall be time of effecting the policy, and it is node- made on lives or any other event wherein fence that the interest had ceased during the person for whose benefit the policy shall life. lb.; Law v. The London Indisputable be made shall have no interest, and that Life Policy Co. 24 L. J. Ch. 196; and see every such assurance shall be void ; " and Hebden v. West, 32 L. J. Q. B. 85 ; [3 B. & by section 3, " that in all cases where the S. 579.] insured hath interest in such life or event, (p) Form, Palmer v. Powell, 9 Bing. 320. no greater sum shall be recovered or re- (q) This was pleaded in a case where the ceived from the insurers than the amount or policy contained an express stipulation that the value of the interest of the insured in such declaration as to health should be true ; and life or other event." In order to render a when that is the case, the proof lies on policy on the life of a third person valid plaintiff, and therefore he has the right to within the meaning of this act, the party for begin at the trial. Rawlins v. Desborough, whose benefit it is effected must have upecu- 2 M. & R. 70 ; Jones v. Provincial Insurance niary interest in the life or event insured ; Co. 3 C. B. N. S. 65 ; Foster v. The Mentor and therefore a policy effected by a father in Life Assurance Co. 3 El. & Bl. 48 ; Geach v. his own name on the life of his" son, he not Ingall, 14 M. & W. 95, sed qu. ? Erie J. haying any pecuniary interest therein, is ruled otherwise at Lewes, July 15, 1856. void.^ Halford v. Kymer, 10 B. & C. 724. The form of this plea will vary according to But in Reed v. Key, Peake Add. Cases, 70, the terms of the policy, which should in each -iOrd Kenvon held that a wife might insure case be followed. For forms of like pleas, ner husband's life. Insurance by a husband see Wood v. Dwarris, 11 Ex. 493 ; Wheelton on his wife's life. Huckman v. Fernie, 3 M. v. Hardisty, 8 El. & Bl. 232 ; 26 L. J. Q. B. & W. 505. Insurance by a creditor, see 265 ; 27 lb. 241 ; Cazenove v. British Equit- Dalby v. The India & London Life Assur- able Co. [6 C. B. N. S. 437 ;] 28 L. J. C. P. ance Co 15 C. B. 365; overruling Godsall 259 ; Fowkes v. Manchester Assurance Asso- v. Boldero, 9 East, 72 ; 2 S. L. Cas. Where ciation, [3 B. & S. 917 ;] 32 L. J. Q. B. 153. a person effects an assurance on the life of an- 416 PLEAS IX CONTRACT. INSURANCE. that by tli-- said declaration it was stated that the said T. B. at the time of the making of the same was in a sound and perfect state of body; whereas the said T. B. was not then in a sound and perfect state of body, but had been and then predisposed to a disease tending to shorten life, (r) 4. Equital lication to like Plea, that the Policy ivas effected upon tin Faith ufa Prospectus stating that Policies should be indisputable, ■ in case of Fraud. Wood v. Dwarris, 11 Ex. 493; Wheelton v. Hardisty, 8 El. & Bl. 232 ; and see ante, " Equitable Pleas," Obs. 373, and Form, 379. 5. That the Declaration as to Health was not signed by the usual Medi- cal Attendant of the Party, (s) That before the granting of the insurance and making of the policy the said company caused to be delivered to the plaintiff a document, being one of the documents mentioned and referred to in the said policy, containing divers mat- ters therein, to be signed by the [usual (i)~\ medical attendant of the said T. B. before the said company would make the said policy [and the plaintiff then had notice that the said company required that the said document, the same being material in reference to the health of the said T. B., should be signed by his usual medical attendant (f)] ; and thereupon the said document, with the matters therein contained, was afterwards delivered by the plaintiff to the said company, signed by one G. R. as and for the [usual] medical attendant of the said T. B., and being one of the documents in the said policy mentioned and referred to ; and the defendant further says, that the said company and the defendant, confiding in the authenticity of the said document, and believing the same was signed by the [usual (t)~\ medical attendant of the said T. B. as afore- said, the defendant made the said policy ; whereas in truth and in fact at the time the said G. R. signed the said document and the matters therein contained as aforesaid, the said G. R. was not the [usual (<)] medical attendant of the said T. B. according to the true intent and meaning of the said policy [but a certain other person then living then had been and was his usual medical attendant (<)]. 6. Plea that a Material Pact, viz. a Pernicious Habit of the Per- son whose Ufe was insured, was not communicated to the Defend- ant, (u) That before and at the time of the making of the policy of insurance in the (r) Another plea was " afflicted with a (t) The above plea was framed by an able disease tending to shorten life ; " and an- pleader, and settled by counsel. It did not other " afflicted with symptoms of a disease contain the words between the brackets. tending to shorten life." (u) The concealment or even non-commu- (s) See Everett v. Desborough, 5 Bing. nication of a material fact known to the per- 503 ; 3 M. & P. 190, S. C. Even where the son assuring, or to the person whose life is office does not expressly require that the cer- insured, or the medical referee, will avoid tificate as to health be signed by the usual the policy, though effected for the benefit of medical attendant, the policy maybe avoided a third person not acquainted with the facts, by a wilful omission to refer to him and a &c. and though no fraud be intended, and reference to another medical person less ac- the party knowing the fact were not aware quain ted with the state of health. Maynard that it was material. Morrison v. Muspratt, v. Rhode, 1 C. & P. 360. 4 Bing. 60 ; 12 Moore, 231 ; Von Lindenau v. PLEAS IN CONTRACT. INSURANCE. 417 declaration mentioned, the said earl had heen and was in the habit of swallow- ing and taking frequently and from time to time large and excessive doses of opium, laudanum, and other pernicious substances and drugs, having a mate- rial tendency to impair the health and shorten the life of the said earl, of all which the plaintiff, at the time of the making of the said policy, had full knowledge, (a;) and which said habit was a fad material and necessary to he made known to the said company Ik -fore the making of the, said policy, in order to enable them rightly and adequately to estimate the risk to be by thorn in- curred in the event of their making the said policy of insurance, and for their due security in that behalf; and the defendant further says that the plaintiffs did not communicate to the said company the said last mentioned fact, but the said company, at the time of the making of the said policy, were wholly igno- rant of the same. 7. That a Material Fact, viz. a known Malady, was not communi- cated. (y~) That at the time of making of the said policy, the said earl had been and was subject to and also frequently and from time to time afflicted with a cer- tain disorder or malady, that is to say, rheumatism, as he well knew, which was a fact material and necessary to be made known to the said company before the making of the said policy, to enable them rightly and adequately to estimate the risk to be by them incurred in the event of their making the said policy of insurance, and for their due security in that behalf ; and the defend- ant further says, that the plaintiff neglected and omitted to inform the defend- ants of such fact, and the same was not at any time before the making of the said policy of insurance in any manner communicated to the said company, but the said company were, at the time of the said policy, wholly ignorant of the same. 8. That the Policy was obtained by Fraud, (z) That they were induced to make and enter into the said policy by the fraud of the plaintiff. 9. Plea that Plaintiff departed beyond Europe, contrary to the Terms of the Policy. Reis v. The Scottish Equitable Life Assurance Co. 2 H. & N. 19 ; 26 L. J. Ex. 279. 10. Plea that he died by his own Hand. («) Moore v. Woolsey, 4 El. & Bl. 243 ; 24 L. J. Q. B. 40. Desborough, 8 B. & C. 586 ; 3 C. & P. 350, (x) As to this .allegation, see Huckman v. S. C. ; Everett v. Desboromrh, 5 Bing. 503 ; Fernie, 3 M. & W. 507. 3 M. & P. 190; Williams w.^Duckett, cited 6 (y) See Gcach v. Ingall, 14 M. & W. 95. C. & P. 3 ; Rawlins v. Desborough, 2 Mood. [Particulars must be given. Marshall v. The & Rob. 328. Non-communication by a party Emperor Life &C. L. R. 1 Q. B. 35.] of his former insanity. Swete v. Pairlie, 6 (z) See Whcelton v. Hardisty, 8 El. & BI. C. & P. 1. Intemperate habits. Craig v. 232 ; 20 L. J. Q. B. 265; 27 lb. 241. Fenn, 1 Car. & M. 43; Southcombe v. Mer- (a) Form, Borradaile v. Hunter, 5 M. & riman, 1 Car. & M. 286. Meaning of clause G. 639. See, also, as to the effect of suicide, in a policy rendering it void if the assured Dufaur v. The Professional Life Assurance should "die by his own hands." Borra- Co. 27 L. J. Ch. 817 ; [25 Beav. 599 ;] Jones daile v. Hunter, 5 M. & G. 639; [ante, 173, v. The Consolidated Investment & A-sur n «te (='-).] ance Co. 28 L. J. Ch. 66; [26 Beav. 256;] vol. ii. 27 418 PLEAS IN CONTRACT. JUDGMENT. JUDGMENT (ACTION ON). (6) 1. Plea of Nul Tiel Record. That there is not any record of the said supposed judgment remaining in the said court here [or " the said court of "]. 2. /,' ' that there is a Record of the Judgment where it was recovered in the same Court, (c) That there is such a record of the said judgment remaining in the said court here as the plaintiff has above alleged, and he prays that the said record may be seen ami inspected by the court here. But because the court here are not ,.i\ ised what judgment to give in the premises, a day is therefore given to the parties aforesaid here until to hear judgment thereon, (d) 3. Replication that there is a Record of the Judgment where it was recovered in another Court. That there is such a record of the said judgment remaining in the said court of , as the plaintiff has above alleged, and he prays that the said record may be seen and inspected by the court here ; and because the plaintiff has not the said record now here in court, it is commanded that he have the same here on , the day of , and that he fail not at his peril. The same day is given to the defendant at the same place. 4. Plea that the Judgment was satisfied by the Plaintiff taking the Defendant in Execution on a Ca. Sa. issued thereon, (c) That after the recovery of the said judgment, and before this suit, the plain- Horn v. The Anglo-Australian &c. Life As- signed to it under a videlicet in the declara- surance Co. 30 L. J. Ch. 511. See, also, tion, is immaterial; Wright v. Egan, C. P. Jackson v. Forster, 28 L. J. Q. B. 166 ; 29 May 7, 1846; and when there appears a L. J. Q. B. 8, as to the effect of an assign- variance between the sum recovered, or the ment of the policy. [As to the effect of sui- date of the judgment as stated in the decla- cide, see ante, 173, note (z'-').] ration, and on the record an amendment will (U) Ante, Ohs. 176. Payment may be be allowed. Noble v. Chapman, 14 C. B. pleaded. 4 Anne, c. 16, s. 12. Accord and 400 ; Hunter v. Emmanuel. 15 C. B. 400. satisfaction cannot be pleaded. Drake v. (c) On an issue of nul tiel record the fact Mitchell, 3 East, 251. See, further, Com. of its existence must be tried by the court Dig. Pleader, 2 W. 13. A release may be and not by a jury, and on the trial the rec- pleaded. Barker v. Quintan, 12 M. &W. 441. ord itself must be produced. But a party Where the judgment is irregular, or there may take issue upon a plea, involving mat- are facts upon which the judgment would be ters of fact as well as of record. Chitty's set aside, the course is to apply to set it aside. Forms, 9 th ed. 463 ; Boyce v. Webb, 15 Q.B. No facts em be pleaded which might have 84. been pleaded to the original action — nor (d) When the plaintiff replies to a plea of can matter which is ground of error. Com. nul tiel record he concludes his replication as Dig. Pleader, 2 W. 39 ; Vin. Abr. tit. Debt, above, and the pleadings are completed. The X. pi. 3; Dick v. Tolhausen, 4 H. & N. 695. plaintiff may then make up and deliver his " Never indebted" would be a bad plea, ex- issue, and with it a notice that he will pro- cepl to an action on a foreign or Irish judg- duce the record on the day named in the rep- ment, or judgment here not of record, lication. Forty-eight hours' notice is suffi- [1 Chitty PL 510, note (6).] What a vari- cient. Hopkins t\ Doggett, 1 L.,M.& P. 541 ; ance in setting out the judgment; Cocks v. 19 L. J. Q. B. 417. A notice on Saturday Brewer, 11 M. & W. 51 ; but it is no vari- for Monday is good ; Maguire v. Kincaid, 21 ance, if the judgment were by default on a L. J. Ex." 264; and see 1 Chit. Prac. 11th jndge'e order, and the debt thereby made ed. 925, and Chit. Forms, 9th ed. 464, as to payable by instalments. Hopkins v. Francis, the form of notice, proceedings, &c. 13 M. & W. 668; 2 D. & L. 382. A vari- (e) For forms, see Collins v. Beaumont, 10 ance between the actual date and that as- Ad. & E. 225 ; McCormick v. Melton, 1 Cr., PLEAS IN CONTRACT. JUDGMENT. 419 tiff, for obtaining satisfaction thereof, sued and prosecuted out of the said court of a writ of capias ad satisfaciendum against the defendant, directed to the sheriff, by which said writ our lady the queen commanded the said sheriff that he should take the defendant, if he should be found in his bailiwick, and him safely keep, so that the said sheriff should have his body before our said lady the queen (or in the common pleas before the justices of our said lady the queen, or in the exchequer before the barons of the exchequer of our said lady the queen) at Westminster, immediately after the execution of the said writ to satisfy the plaintiff, the damages and costs, and charges so recovered, by virtue of which said writ the said sheriff afterwards, and before this suit, took and arrested the defendant by his body, and kept and detained him in custody, and in execution under and by virtue of the said writ. 5. Replication that the Ca. Sa. was irregular, wherefore the Defendant was discharged out of Custody by a Judge's Order. (/) That afterwards, and whilst the defendant was kept and detained in cus- tody, and in execution under and by virtue of the said writ of capias ad satis- faciendum, the defendant applied to and obtained an order of the honorable , whereby it was ordered that the defendant should be discharged out of the custody of the said sheriff as to the said action, for an irregularity ; and the defendant was in pursuance of the said order discharged out of the custody aforesaid, for an irregularity, and for no other cause whatever. JUDGMENT (ACTION ON FOREIGN). Obs. — See ante, Obs. 176. A foreign judgment on the merits is conclusive, and therefore the defendant cannot plead to an action on such judgment here matter which he might have pleaded in the foreign courts. Henderson v. Henderson, 6 Q. B. 288; 13 L. J. Q. B. 274; Bank of Australasia v. Nias, 16 Q. B. 217; 20 L. J. Q. B. 284 ; Bank of Australasia v. Harding, 19 L. J. C. P. 345 ; [9 C. B. 661;] Castrique v. Imrie, 8 C. B. N. S. 405; [L. R. 4 H. L. 414;] Munroe v. Pilkington, 31 L. J. Q. B. 81, 89; [2 B. & S. 11;] Castrique v. Behrens, 30 L. J. Q. B. 163, 168; [2 El. & El. 709;] Vanquelin v. Bouard, 33 L. J. C. P. 78; [Kelsall v. Marshall, 1 C. B. N. S. 241; Ricardo v. Garcias, 12 CI. & Fin. 368; Houlditch v. Donegall, 2 CI. & Fin. M. & R. 525 ; National Assurance Associa- his securities. If the defendant die, escape, tion v. Best, 2 H. & N. 695. The effect of or be rescued, the judgment is not satisfied. taking the debtor in execution is to bar all After an arrest and discharge, on the ground other remedies against him, but it is not an of privilege, the debtor may be re-arrested, absolute extinguishment of the debt. Thomp- Barrack v. Newton, 1 Q. B. 533 ; Towers v. son v. Parish, 5 C. B. N. S. 685 ; Taylor v. Newton, lb. 319 ; Baker v. Ridgway, 9 Mod. Waters, 5 M. & S. 104; Foster v. Jackson, 122; 2 Bing. 41. An arrest on a ca. sa. Hob. 59. If the creditor voluntarily dis- afterwards set aside for irregularity, does not charge the debtor out of custody, the debt discharge the judgment. Merchant v. Franks, is wholly extinguished, and the debtor cannot 3 Q. B. 1 ; Atkins v. Beaumont, 10 Ad. & E. be re-arrested, although he may agree that 225; McCormick v. Melton. 3 Dowl. 215; 1 he may be so. Cattlin v. Kernot, 3 C. B. Cr., M. & R. 525. So, if the discharge be N. S. 796. Debts due to the debtor cannot procured by fraud. Baker v. Ridgway, ubi be attached after he has been taken in exe- sr/p. ; Cattlin v. Kernot, ubi sup. [Composi- cution. Janralde v. Parker, 30 L. J. Ex. 237, tion deed. Braun v. Weller, L. R. 2 Ex. where see form of plea. After arrest the 183.] judgment cannot be set off in an action ( /') See last note. See forms, McCor- brought by the debtor. Taylor v. Waters, ubi mick v. Melton, 1 Cr., M. & R. 525 ; Collins sup. By 1 & 2 Vict. c. 110, s. 16, if a judg- v. Beaumont, 10 Ad. & E. 225; Rankin v. rnent creditor take the person of his debtor De Medina, 1 C. B. 183; 2 D. & L. 813. in execution, he relinquishes the benefit of 420 PLEAS IN CONTRACT. JUDGMENT. Ous. 470, note (2) and cases cited; De Cosse Brissac v. Rathbone, 6 H. & N. 301; Appleton C. J. in Rankin v. Goddard, 51 Maine, 28, 33; Reimers v. Druce, Beav. 150; Cammell v. Sewell. 3 H. & N. 617; 5 II. & N. 728; Simpson ,-. 1 I I.. ,1. Ch. ^57; S. C. 1 J. & H. 18; 1 H. cS: M. 195; Monroe w. Douirh S tndf. Ch. 1 2G ; Cummings v. Banks, 2 Barb. 602; Lazier v. Westcott, 20 X. V. 116; Scott v. Pilkinton, 2 B. & S. 11; Barrow v. West, . 270; Norwood >'. Cobb. 20 Texas, 456; Gleason v. Dodd, 4 Met. 33tl; Middlesex Bank v. Butman, 29 Maine, 19; Taylor /•. Barron, 30 1ST. H. 78.] And it is no answer to plead that the defendant became a party to it rely to prevent his property being seized, and that the judgment is erro- neous in faet and in law on the merits, or that the enforcement of the judg- ment in England is contrary to natural justice, on the ground that the de- fendant has discovered fresh evidence, showing that the judgment is errone- ous in faet and law on the merits, or that evidence was improperly admitted. ] ), Cosse Brissac >■. Rathbone, 6 H. & N. 301. Want of jurisdiction, or that tin- defendant was never served with process, or that the judgment was fraudulently obtained, [Bowles v. Orr. 1 Y. & C. 464,] may be shown; Bank of Australasia v. Nias, ubi sup. ; sed vide Castrique v. Behrens, nhi sup. : [Bischoff r. Wethered, 9 Wallace, 812; Schibsby v. Westenholz, L. R. 6 Q. B. 155; Gleason v. Dodd, 4 Met. 333; Starbuck v. Murray, 5 Wend. 158; Hall v. Williams. 6 Pick. 232; Aldrich v. Kenney, 4 Conn. 380, and other eases cited in 2 Chitty Contr. (11th Am. ed.) 1177, note (b) ; Dobson v. Pearce, 2 Kernan, 156; Shedden v. Patrick, 1 McQ. 535; Appleton C. J. in Rankin v. Goddard. 54 Maine, 28, 33; Houlditch v. Donegall, 2 CI. & Fin. 470, note (2); RomillyM. R. in Reimers v. Druce, 26 L. J. Ch. 198;] or that the J'udgment was not a final judgment. Emerson v. Lashley, 2 H. Bl. 648; Fry v. Jaleohn. 4 Taunt. 705; Patrick v. Shedden, 2 El. & Bl. 14. Error appear- ing on the face of the judgment itself may be an answer. Xovelli v. Rossi, 2 B. & Ad. 757; Reimers v. Druce, 23 Beav. 150; Munroe v. Pilkington, ubi sup. [But it has recently been held otherwise, in the case of a foreign judg- ment in personam. Godard v. Gray, L. R. 6 Q. B. 139.] And see other grounds, ante, Obs. 176. The pendency of an appeal in the foreign court is no answer, although it might afford ground for staying proceedings on terms; Munroe v. Pilkington, ubi sup. ; and at chambers proceedings have been stayed on security for the amount of the judgment being given. [As to the conclusive effect of a foreign judgment in rem, see Castrique v. Imrie, L. R. 4 H. L. 414,448; 2 Chitty Contr. (11th Am. ed.) 1178, 1179; Simpson v. Fogo, 32 L. J. Ch. 249, 257.] 1. Never Indebted. ((/) Ante, 284. 2. Plea to an Action on an Irish Judgment, that Defendant was not served with or had Notice of Process, and did not appear. Ferguson v. Mahon, 11 Ad. & E. 179; Sheehy v. Professional Assurance Co. 2 C. B. N. S. 211 ; 3 lb. 597 ; 26 L. J. C. P. 301 ; 27 lb. 233. 3. Like Plea to an Action on a Scotch Decree. Cowan v. Braid wood, 1 M. & G. 882 ; 9 Dowl. 26. 4. Like Plea to an Action on a Foreign Judgment. Reynolds v. Fenton, 3 C. B. 187; Ricardo v. Garcias, 12 CI. & Fin. 338, Vallee v. Dumergue, 4 Ex. 200 ; Meeus v. Thellusson, 8 Ex. 638 ; Vanquelin v. Bouard, 33 L. J. C. P. 78 ; [15 C. B. N. S. 341.] {(j) Nul tiel record is a bad plea to an L. J. Ex. 421 ; and cannot be supported as a action on a foreign judgment; Walker v. traverse of a material allegation in the decla- Witter, 1 Dougl. 1 ; Philpott v. Adams, 31 ration. PLEAS IN CONTRACT. JUDGMENT RECOVERED. 421 5. Like Plea to an Action on a Judgment of a Colonial Court. Bank of Australasia v. Nias, 16 Q. B. 717; 20 L. J. Q. B. 284. 6. Plea to an Action on a Scotch Decree, that it was not final. Patrick v. Shedden, 2 El. & Bl. 14. JUDGMENT RECOVERED. Obs. — By a judgment recovered against the defendant the cause of action transit in rem judicatam, and is merged in the judgment, and the judgment, may be pleaded in bar. [Higgen's case, 6 Co. 45 b; King v. Hoare, 13 M. & W. 494, 504; Smith v. Nicolls, 5 Ring. N. C. 208, 220.] The judgment must be for the same identical cause of action, but it will be taken against the plaintiff that he recovered all he could recover on the record in the former action. Todd v. Stewart, 9 Q. B. 759; Lord Bagot v. Williams, 3 B. & C. 235; Had- ley v. Green, 2 CI. & Fin. 374; [Phillips v. Berick, 16 John. 137; Secor i Sturgis, 16 N. Y. 548.] The former judgment is no defence if it be shown to have related to a different breach of the same contract; Bristowe v. Fair- clough, 1 M. & G. 143; Thornton v. Jenyns, 1 M. & G. 143; Florence v. Jenings, 1 C. B. N. S. 584 ; [Butler v. Wright, 2 Wend. 369 ; S. C. 6 Wend. 284;] nor if the plaintiff failed in the former action, because it was prema- turely brought. Palmer v. Temple, 9 Ad. & E. 379. A judgment not fol- lowed by satisfaction by an indorsee of a bill against an acceptor is no de- fence to an action by the drawer who has taken up the bill; Tarleton v. Atkinson, 2 Ad. & E. 32 ; and a plea of judgment recovered on account of a promissory note given for and on account of "the debt was held a bad plea to an action for the debt. If the causes of action in the two suits are identical, a judgment recovered is a defence although the forms of action may be differ- ent. Slade's case, 4 Co. 946 ; Com. Dig. Action, K. 3; Thrustout v. Craf- ter, 2 Bl. 827; Phillips v. Berryman, 3 Dougl. 286 ; Buckland v. Johnson, 15 C. B. 145 ; Routledge v. Hislop, 29 L. J. M. C. 90; [2 El. & El. 549 ; King v. Chace, 15 N. H. 9 ; Doty v. Brown, 4 Comst. 71 ; Agnew v. McElroy, 10 Sm. & M. 552 ; Young v. Black, 7 Cranch, 565 ; Pinney v. Barnes, 17 Conn. 420.] And as to what claims a judgment covers, and as to the plea gener- ally, see The Duchess of Kingston's case, 2 Smith L. C. 5th ed. 642; 1 Saund. 92, note (1); [Chitty Contr. (11th Am. ed.) 1171 et seq. and notes.] As to effect of evidence in former action, Stafford v. Clarke, 2 Bing. 382. Judgment recovered in a county court is a good plea in bar; Austin °u. Mills, 9 Ex. 288; and where the plaintiff in order to proceed to the county court has abandoned a part of his claim, the judgment recovered will be a good bar to any action for the abandoned part. Vines v. Arnold. 8 C. B. 632." [See Mer- rick v. Dawson, 2 Harring. (Del.) 50. So, where a creditor has chosen to compel payment of part of a single and entire demand, it operates as an ex- tinguishment of the balance. 2 Chitty Contr. (11th Am. ed.) 1172, and note (c 1 ).] Proceedings in rem in the admiralty are no bar to proceedings in the common law courts. Nelson v. Couch, 33 L. J. C. P. 46; [15 C. B. N S 99.] A. foreign judgment recovered against the defendant is no bar, for being consid- ered here a simple contract debt only, it does not operate as a merger of the original cause of action. Hall v. Odber, 11 East, 124; Smith u° Nicolls. 5 Bing. N. C. 208; Bank of Australasia v. Harding, 9 C. B. 661; Bank of Aus- tralasia v. Nias, 16 Q. B. 717; [Lyman v. Brown, 2 Curtis, 559.] But fol- lowed by satisfaction of the judgment it is an answer. Barber v. Lamb. 8 C. B. N. S. 95. A judgment recovered against the plaintiff' must be pleaded by way of estoppel. See ante, " Estoppel." And a judgment against the plaintiff in a foreign court is a good plea by way of estoppel, if the judgment is final and conclusive be- tween the parties by the foreign law, and this should appear by the plea, 122 PLEAS IN CONTRACT. JUDGMENT RECOVERED. Obs. Plummer v. Woodburne, 4 B. & C. 625; General Steam Navigation Co. v. Guillou. 11 M. &W. 87: Ricardo v. Garcias, 12 CI. & Fin. 368; Frayes v. \\ g] 10 C 1'.. N. S. 149; see" Estoppel," ante, 379. [See Brown v. Lexing- ton & Danville EL R. Co. 2 Beasley (N. J.), 191; Low r. Mussey, 41 Vt. 393: Christmas v. Russell. 5 Wallace, 290 ; Dobson v. Pearce, 2 Kernan, 156. But in pleading a foreign judgment it is not necessary to set forth the proceeding and judgment at Length. Ricardo v. Garcias, 12 CI. & Fin. 368.] By the Pr. Rules of II. T. 1853, r. 10, " Where a defendant shall plead a plea of judgment recovered, he shall, in the margin of such plea, state the date of such judgment ; and if such judgment shall be in a court of record, the 7mm- ber of the lull on which such proceedings are entered, if any ; and in default of his so doing, the plaintiff shall be at liberty to sign judgment as for want of a plea: and in case the same be falsely stated by the defendant, the plain- tiff, on producing a certificate from the proper officer or person having the the custody of the records or proceedings of the court where such judgment is alleged to have been recovered, that there is no such record or entry of a judgment as therein stated, shall be at liberty to sign judgment as for want of a plea."' This rule does not apply to the case of a plea by an executor that another cred- itor has recovered judgment against him, &c. ; or that the debt had been recovered as a set-off in a former action. Indeed, its only object was to pre- vent the common sham plea of judgment recovered for the same demand. Brokenshir v. Monger, 9 M. & W. 112. If it appear from comparing the marginal notes with the declaration, that the judgment could ?iot apply to the causes of action, the plea will be bad on the general demurrer. Few v Back- house, 8 Ad. & E. 789. The marginal note may be thus : " The judgment mentioned in this plea was signed on the day of , a. d. . The number of the roll is ." 1. Plea of Judgment recovered for the Debt. That the plaintiff heretofore on the day of , a. d. - — , in the marginal \ court of Q. B. [or " C. P." or " exchequer of pleas "] at West- note, ante, > minster, impleaded the defendant in an action for the same iden- Obs. ) tical debt [or " cause of action "] (h) in the declaration mentioned, and such proceedings were thereupon had in the said action, that afterwards, and before the commencement of this suit, the plaintiff, by the consideration and judgment of the said court, recovered (i) in the said action against the defendant £ for his damages and his costs of suit in that behalf ; which said judgment is in full force unreversed and unsatisfied. [la. Answer of Judgment recovered. And the defendant comes and says, that at the supreme judicial court, held [<§"£•]' the plaintiff recovered judgment against the defendant for dollars and cents damages, and for costs, and that said judgment was ren- dered upon the same cause of action mentioned in the plaintiff's declaration.] 2. Plea of Judgment recovered by the Assignees of a Bankrupt. Biggs v. Cox, 4 B. & C. 920. 3. Plea that in a Former Action Defendant paid a Sum into Court with Costs in Satisfaction. Power v. Butcher, 10 B. & C. 329. (h) The averment of identity between the default on a judge's order, and the debt two causes of action must be distinct. Todd thereby made pavable bv instalments. Hop- t;. Stewart, 9 Q. B. 759. kins v. Francis, "l3 M."& W. 668; S. C. 2 (t) No variance, if the judgment were by D. & L. 382. PLEAS IN CONTRACT. JUDGMENT RECOVERED. 42o 4. Plea that the Debt was due from the Defendant and A. B., and Judgment recovered against A. B. King v. Hoare, 13 M. & W. 494 ; S. C. 2 D. & L. 382. (k) The judgment was entered on the day of 5. Plea of Judgment recovered in a County Court. That the plaintiff heretofore in the county court of , holden at , entered his plaint against the defendant for •A.D. the number of the plaint is .(0 the same identical debt [or "cause of action"] as in the ► declaration mentioned, the same being a debt [or "cause of action " ] in which the said county court had jurisdiction, and such proceedings were thereupon there had, that it was adjudged by the said court that the plaintiff should recover against the defendant £- - for the said debt and his costs of suit in that behalf; which said judgment is in full force and unsatisfied. 6. Replication of Nul Tiel Record to Plea of Judgment recovered in the same Court, (ni) Obs. — This is the proper replication where the judgment has been set aside. Nash v. Swinburne, 3 M. & G. 855. When the plaintiff thus replies he should give the plaintiff a four days' notice, requiring him to produce the record, otherwise judgment, see 11. H. T. 1853, r. 38, which provides that "on a replication or other pleading denying the existence of a record pleaded by the defendant, a rule for the defendant to produce the record shall not be necessary or used, and instead thereof a four days' notice shall be substituted, requiring the defendant to produce the record, otherwise judgment." The notice may be thus : In the . Take notice that you are required on the A. B. v. C. D. - day of A. D. to produce the record pleaded by you herein, otherwise judgment will be entered for the plain- tiff. Dated this day of , To Mr. E. F. Yours, &c. Defendant's attorney [or " agent."] G. H. Plaintiff's attorney [or "agent."] That there is not any record of the said supposed recovery in the said plea mentioned remaining in the said court here, as the defendant has above (k) The 11th section of the mercantile law amendment act, 1856, prevents a judg- ment recovered against one co-contractor op- erating to discharge another when the latter is beyond seas, and provides that a person " shall not be barred from commencing and sninLr any action or suit against the joint debtor or joint debtors who was or were beyond seas at the time the cause of action or suit accrued after his or her return from beyond seas, by reason only that judgment was already recovered against any one or more of such joint debtors who was not or were not beyond seas at the time aforesaid." (/) This is required by r. 10, H. T. 1853, Bee supra, Obs., the county court being a eourt of record. 9 & 10 Vict. c. 95, s. 3. And see No. 45 of the county court forms. S. 89 of the 9 & 10 Vict. c. 95, provides that every judgment of the county court shall be final and conclusive, subject to the power of the judge to nonsuit or to order a new trial. (m) Practice, &c. hereon and on next replication. 2 Arch, bv Chit. 11th ed. 824 ; Hopkins v. Francis, 13 "M. & W. 494 ; S. C. 2 D. & L. 382. Forms, &c. Chit. Forms, 9th ed. 463, 464. See forms of replication deny- ing that the causes of action are the same, Todd v. Stewart, 9 Q. B. 759; Gordon v. Whitehouse, 18 C. B. 747; Florence v. Jen- ings, 1 C. B. N. S. 584 ; though according to Parke B. in King v. Hoare, 13 M. & W. 494, the plaintiff should in such case new assign, and see Palmer v. Temple, 9 Ad. & E. 379. 424 PLEAS m CONTRACT. LANDLORD AND TENANT. alleged ; and because the court here are not yet advised what judgment to of and upon the premises, a day is therefore given to the parties afore- said lien- until to hear judgment thereon, for that the said court here are not yet advised thereof [<$'c.]. 7. Replication of Nul Tiel Record to Plea of Judgment recovered in Another Court, (n) Commencemt nt, ante, 20, 21.] That there is not any record of the said sup- posed recovery in the said plea mentioned remaining in the said court of , as the defendant has above alleged; and hereupon the defendant is commanded that he have the said record here on , and that he fail not at his peril ; the same day is given to the plaintiff at the same place. 8. Neiv Assignment to a Plea of Judgment recovered, (o) That he sues not [or not only as the case requires'] for the debt [or " causes of action "] in the said plea mentioned ; but [or but also] for debts [or " causes of action "] other than those in respect whereof the said judgment was recov- ered. LANDLORD AND TENANT. Obs. — Declarations and law, ante, 179. The general issue to the common count is nunquam indebitatus, ante, 281-284. It denies the tenancy and the amount of rent due. Beech v. White, 12 Ad. & E. 668. An eviction ; Prentice v. Elliott, 5 M. & W. 606 ; Selby v. Browne, 14 L. J. Q. B. 307 ; Upton v. Town- end, 17 C B. 30 ; a surrender ; Dodd v. Acklon, 6 M. & G. 672 ; Washing- ton v. Harthan, 6 Jur. 127 ; or that the defendant quitted because the premi- ses became uninhabitable ; Smith v. Marrable, 11 M. & W. 5 ; Sutton v. Temple, 12 M. & W. 64 : and see Hart v. Windsor, 12 M. & W. 68, [but see Royce v. Guggenheim, 106 Mass. 202, 203 and cases cited ; De Witt v. Pierson, 112 Mass. 8 ; ante, 183;] may be shown under it. So, also, the defendant may show the existence of a lease under seal, although if the ten- ancy were created by contract not under seal the common count for use and occupation would be sufficient. Gibson v. Kirk, 1 Q. B. 850. So, the defence that before the rent became due a mortgagee of the plaintiff gave the defend- ant notice to pay the rent due after the notice to him is admissible under the general issue, because such defence amounts to a denial of the use and occu- pation by the permission of the plaintiff; Waddilove v. Barnett, 2 Bing. N. C. 538 ; Pope v. Biggs, 9 B. & C. 245 ; see, also, Doe v. Bucknell, 8 C. & P. 566 ; but the mortgagee's claim must be pleaded specially as to arrears of rent which accrued due before he gave the defendant notice, because in this case the plaintiff's right of action had vested, and the defence is matter in con- fession and avoidance. Waddilove v. Barnett, 2 Bing. N. C. 538 ; see Evans v. Elliott, 5 Ad. & E. 142 ; Partington v. Woodcock, 6 Ad. & E. 690 ; John- son v. Jones, 9 Ad. & E. 809. So, a defence that the defendant had paid the rent to a person who had recovered in ejectment, and had given him notice to pay the rent to him under a threat of turning him out must be spe- cially pleaded. Newport v. Harley, 2 D. & L. 921 ; 14 L. J. Q. B. 242 ; Johnson v. Jones, 9 B. & C. 809. But the assignee of a mortgagor who has let a tenant into possession after the mortgage, can sue such tenant for use and occupation, notwithstanding notice from the mortgagee to pay rent. Hickman v. Machin, 4 H. & N. 716 ; Wilton v. Dunn, 17 Q. B. 294 ; and see Emery v. Bartlett, 4 C. B. N. S. 423. (n) See last note. tion is disputed, not the existence of the (o) This seems to be the proper course to judgment, see note (m), ante, 423. adopt when the identity of the causes of ac- PLEAS IN CONTRACT. LANDLORD AND TENANT. 425 Ons. If the action is brought upon an instrument under seal, the general issue is rum est factum, ante, 285, 28G. It' the action is brought on a special agreement not under seal, the general issue varies according to the facts, and consists generally in a mere traverse. 1. General Issue to Indebitatus Count for Use and Occupation. He never was indebted, as alleged, ante, Obs. 2. Denial of Demise by Deed. Non est factum, ante, Obs. 3. Denial of Demise not by Deed. That the plaintiff did not let [or " demise "] the said to the defendant upon the terms (p) alleged, (q) 4. Denial of Tenancy, not being by Lease under Seal. That he was not tenant to the plaintiff of the said upon the terms (p) alleged. 5. Denial that the Rent was due. That the said rent had not, nor had any part thereof, become due at the commencement of this suit. 6. Plea of Payment of Rent, (r) 7. Plea that the Rent was satisfied by a Distress. («) Aldridge v. Howard, 4 M. & G. 921. ~» v 8. Plea that the Demise was subordinate to the Gtrant of an Easement, and was not under Seal. Bird v. Higginson, 2 Ad. & E. 696; 6 Ad. & E. 824. (t) (p) It is important to include the "terms" against his landlord for breach of the cus- in the traverse, otherwise the fact of the torn of the country on his leaving the farm, tenancy only would be in issue. Halifax v. Hutton v. Warren, 1 M. & W. 466 ; and see Chambers, 4 M. & W. 662 ; S. C. 7 Dowl. a form in case denving the tenancy, Bacon v. 343; and see Beech v. White, 12 Ad. & E. Smith, 1 Q. B. 346. 670 ; and see Carter v. James, Q. B. cited in (r) See post, " Payment." 13 M. & W. 137 ; S. C. 2 D. & L. 236. (s) The plea must show that the rent was (g) According to the form of the declara- satisfied. Lear v. Edmonds, 1 B. & Aid. tion. See a form of plea, that the lessor did 157. not execute the lease sued on, Swatman v. (t) The declaration was in contract on a Atnbler, 8 Ex. 72 ; 22 L. J. Ex. 81 ; Pitman written agreement, not under seal, to let a v. Woodbury, 3 Ex. 13. If a lease, contain- messuage together with a right to shoot, in;: a covenant to repair be executed by the sport, &c. over a manor, at an entire rent, lessee, but not by the lessor, the former is the plaintiff declared specially, but the de- not bound by the covenant, even thongh he fendant entered, &c. but did not pay the had enjoyed the premises for a time equal to rent; the court held that the grant being a the term in the lease. Pitman v. Woodbury, part of an incorporeal hereditament should supra. The plea in the text would be appli- have been under seal, and that as no occupa- cable to a declaration in which the demise tion was alleged no rent could be recovered was alleged as an executory consideration for on it. See Mayor, &c. ot Carmarthen v. the defendant's promise. Where the tenancy Lewis, 6 C. & P." 608. It may be question- is alleged as an executed consideration, the able, however, whether the plea is not an ar- tenancy on the terms alleged would seem to gumentative traverse of the demise. See be denied by the general issue. Sec several Johnson v. Hodgson, 2 M. & W. 657 ; per forms of traverses in an action by a tenant Lord Abinger. 42G PLEAS IX CONTRACT. LANDLORD AND TENANT. 9. Plea to a Special Declaration by a Landlord against his Tenant for Rent, an executed Agreement that the Defendant should give up Pos- sessioyi of the Premises and Plaintiff abandon the Rent. Gore v. Wright, 8 Ad. & E. 118. («) 10. To the like ; Plea of Surrender by operation of Law. (x) That before the said rent became due, it was agreed between the plaintiff and the defendant that the said term and tenancy should be put an end to, and in pursuance of such agreement the defendant gave up to the plaintiff, and the plaintiff took possession of the said demised premises. 11. To the like ; Plea that before the Rent became due, Plaintiff en- tered and resumed Possession of the Premises, by reason of the De- fendant having committed a Breach of the Agreement for the Demise, involving a Forfeiture. Oldershaw v. Holt, 12 Ad. & E. 592 ; and see Franklin v. Carter, 1 C. B. 750; 14 L.J. C. P. 241. 12. To the like ; Plea of Discharge under Title paramount in Assignee of Plaintiff, an Insolvent Debtor. Partington v. Woodcock, 6 Ad. & E. 690. 18. To the like ; Plea of Eviction, (jf) That before the said rent became due (z) and before this suit, the plaintiff, (u) This plea was held good. The court said that it was not to be taken as setting up a surrender, so as to require a memorandum in writing, but that it afforded a valid excuse for non-payment of the rent, by showing the agreement, and the giving up possession. a similar plea, Turner v. Hardy, 9 M. & W. 770; 1 Cr. & M. 449; Smith v. Lovell, 10 C. B. 6 ; and see Dunn v. Di Nuovo, 3 M. & G. 107 ; 9 Dowl. 841. A surrender other- wise than by operation of law must be in writing, &c under the statute of frauds, 29 Car. 2, c. 3, and by deed, unless the interest is copyhold, or one which might by law be created without writing, 8 & 9 Vict. c. 106, s. 8, and must in a plea be shown to be in writing and signed, see 1 Saund. 235, 6, note (9); 276 a, note (2). Mode of pleading a surrender by deed, &c. lb.; ,2 Saund. 22; Barnard v. Duthy, 5 Taunt. 27. As to sur- render, see Chit, on Contr. " Surrender." A surrender by act of law is when the owner of a particular estate has done some act, the validity of which he is in law afterwards estopped from disputing, and which would not be valid if the particular estate had con- tinued to exist. Phene v. Popplewell, 31 L. J. C. P. 235 ; Lvon v. Reid. 13 M. & N. 285 ; Reeve v. Bird, i Cr., M. & R. 31 ; [Talbot v. Whipple, 14 Allen, 177, 180.] Surrender by delivery of the key by the tenant, and ac- ceptance thereof by the landlord before the rent became due. Dodd v. Acklon, 6 M. & G. 672. (x) Cannon v. Hartlev, 9 C. B. 634 ; 19 L. J. C. P. 323 ; Smith v. Lovell, 10 C. B. 6. This need not be specially pleaded to the common count for use and occupation. Dodd v. Acklon, 6 M. & G. 672 ; 13 L. J. C. P. 11 ; Walls v. Atcheson, 3 Bing. 462. As to what amounts to a surrender bv operation of law, Phene v. Popplewell, 31 "L. J. C. P. 235. (#) The entry of the lessor, or any one claiming through him, to take possession operates as a suspension of the rent, and therefore entry, into any part or the whole, and eviction is a good plea to an action for rent. Morrison v. Chadwick, 7 C. B. 266 ; 18 L. J. C. P. 189 ; Upton v. Townend, 17 C. B. 30 ; 25 L. J. C. P. 44 ; 1 Saund. 204, note (2), but it does not put an end to the (z) This is necessary, as an eviction, to be a good defence, must have taken place before the rent became due. Boodle v. Cambell, 7 M. & G. 386 ; S. C. 2 D. & L. 66. See, fur- ther, as to pleas of eviction, 1 Saund. 204, note (2); post, Replevin, tit. "Landlord and Tenant." PLEAS IN CONTRACT. LANDLORD AND TENANT. 427 against the will and consent of the defendant, wrongfully entered into and upon * the said messuage and premises, and ejected, and expelled, the defend- ant (a) from the possession, use and occupation thereof, and kept him so ejected and expelled from thence hitherto. 14. A Similar Plea, shoiving a Partial Eviction, whereupon Defendant quitted the Remainder of the Premises. (6) As in the preceding form to the asterisk, and proceed :] a certain close, par- cel of the said premises demised by the plaintiff to the defendant, and which was then holden by the defendant as part of the tenements in the declaration mentioned, and then ejected and expelled the defendant from the possession and enjoyment thereof, whereupon the defendant then requested the plaintiff to restore to him the defendant the possession of the said close, but the plain- tiff refused so to do, whereupon the defendant then and before the said sum of £ , or any part thereof, accrued due, gave up the possession of the residue of the said tenements and premises. 15. Plea, except as to £ , that no Part of the Pent claimed became due except that Sum. Bright v. Beard, 4 Q. B. 832. 16. Plea of a Notice to quit before the Rent became due, and Replica- tion that the Notice was waived. Jones v. Shears, 4 Ad. & E. 832. 17. Plea to Declaration for Use and Occupation, that Plaintiff was satisfied part of the Arrears of Rent under a Distress made by him. (. & Aid. 241 . where there is a form of plea ; Hopwood v. Whaley, 6 C. B. 944; 18 L. J. C. P. 43 ; Tremeere v. Morison, 1 Bing. N. C. 89 ; Paul v. Simpson, 15 L. J. Q. B.382. So, also, an administrator; but the latter, who has fully administered, and who is chargeable with no default or laches, may iu general discharge himself from liability to a greater extent than the real value of the premises. Hornidge v. Wilson, 11 Ad. & E. 655 ; \\ ollaston v. Ilakewill, 3 M. & G. 321. I pon bankruptcy, leaseholds vest in the official assignee ; 12 & 13 Vict. c. 106, ss. 141, 142; but upon the appointment of a cred- itor s assignee they vest in him. 24 & 25 Vict. c. 134, s. 117. The assignees may elect to take the leaseholds. 12 & 13 Vict. c. 106, s. 145. See, also, 24 & 25 Vict. c. 134, s. 131. But the assignees are not liable, unless they have done some act which uneiiuirocablv in- dicates to the lessor that they have elected to take the benefit of the lease. Goodwin v. Noble, 8 El. & Bl. 587; Copeland v. Ste phens, 1 B. & Aid. 593 ; Turner v. Richard- son, 7 East, 335. When they hare elected to take the lease, they are liable to the rent and covenants that run within the laud. Holford v. Hatch, 1 Dougl. 1*4. But they can get rid of their liability bv assigning over, see YVoodfall on Landlord and Tenant, by Cole, 215. In Thomas v. Bradbury, 1 Bing. N. C. 326, the assignees of a bankrupt sued on a release for rent were allowed to plead, 1st, that the lessee's interest did not pass to them; and, 2d, that they abandoned and renounced .such interest. (i) See last note, form, Harlev v. King, 2 Cr., M. & R. 18, and replication that breaches were committed before assignment. lb. Though semble the plea would be bad without this averment. This is a defence although the assignee covenanted not to assign, and the assignment be to a pauper lor the express purpose of obviating future liability. Taylor v. Shuin, 1 B. & P. 21 ; Paul v. Morse, 8 B. & C. 486. But the re- assignment does not discharge the assignee from liability to the lessor, or the assignee of the reversion for breaches committed whilst the interest of the assignee as such existed. Hai'ley v. King, supra. A re-as signment was held to be complete and to pro- ted the assignee who had executed it, al- though the deed remained in the hands of his solicitor under a claim of lien for prepar- ing it. Odell v. Wake, 3 Camp. 394. No- tice to the landlord of the assignment need not be alleged or proved. Pitcher v. Tovey, 1 Salk. 81 ; Taylor v. Shum, supra. (/>) Although the lessee cannot deny that his lessor had any title, or the title shown by the lease, he may show anything not in- consistent with the estoppel. See pleas and 430 PLEAS IN CONTRACT. LANDLORD AND TENANT. 27. Plea to an Action by an Assignee of the Reversion, denying that Lessor had the Reversion alleged. That such reversion of, and in the said demised premises did not belong to the said A. 15. as alleged, (k) 28. Plea that the Lessor assigned the Reversion before Breach. (V) Green v. James, M. & W. 656. 29. Plea that Defendants, Assignees of a Bankrupt, had not elected to take the Lease. Goodwin v. Noble, 8 El. & Bl. 587 ; [Porter v. Kirkus, L. R. 2 C. P. 590.] 30. Plea in Abatement, that the Premises vested in the Defendant and Another. Heap v. Brooks, 1 D. & L. 334. (m) 31. Pleas to an Action for Non-repair, $c. — 1. That the Non-repair occurred through the unforeseen Act of a Third Party. 2. That the Defendant teas ready to repair, but that a Reasonable Time to do so had not elapsed. 3. That the Plaintiff repaired himself, and so prevented the Defendant from repairing. Green v. Eales, 2 Q. B. 225; 11 L. J. Q. B. 63. [In an action against executor of reversioner, on a covenant to repair made between original owner and bankrupt. Coward v. Gregory, L. R. 1 C. P. 153.] 32. Plea to an Action for Rent by a Transferee of a Lease, Payment to the Transferor without Notice of the Transfer, (n) Lucas v. Jones, 5 Q. B. 949. 33. Plea to an Action for Rent, a Clause of Re-entry in the Deed under which the Plaintiff entered. Hartshorne v. Wilson, 4 Bing. N. C. 178 ; 6 Dowl. 404. 34. Plea to an Action on a Covenant for Rent, that the Plaintiff com- mitted a Breach of Covenant, in Consequence of which the Superior Landlord brought Ejectment and compelled the Defendant to pay the Rent to him. Franklin v. Carter, 3 D. & L. 313 ; 1 C. B. 750. (o) law, Weld v. Baxter, 11 Ex. 816; 1 H. & Foley v. Addenbrooke, 4 Q. B. 197; 12 L. N. 568; 25 L.J. Ex. 214; 26 L.J. Ex. 112; J. Q. B. 163. Phelps v. Prew, 3 El. ,.<: B1.430; Cuthbertson (n) Like plea in action by mortgagee of v. Irving, 4 H. & N. 742 ; 28 L. J. Ex. 306 ; payment to mortgagor without notice ; Cork Williams v. Hayward, 28 L. J. Q. B. 374; v. Moylan, 1 Ex.' 67 ; 5 D. & L. 101 ; and as [1 Chitty PI. 630, and cases in note (m).] to the rights of mortgagor and mortgagee as (/) See Bickford v. Parson, 5 C. B. 920 ; against tenants, see Moss v. Gallimore, 1 17 L. J. C. P. 192 ; Pargeter v. Harris, 7 Q. Dougl. 279 ; 1 Sm. L. C. 5th ed. 542. B. 708. (o) [A plea in an action on a covenant for (m) Plea setting up the interest of a third quiet enjoyment, that plaintiff never en- party in the premises not joined as plaintiff, tered into possession, is bad.] PLEAS IN CONTRACT. LIMITATIONS. 431 LEAVE AND LICENSE, (p) LIMITATIONS, STATUTE OF. Obs. — At common law lapse of time is no bar to an action, although it may raise a presumption of payment. Dowthwaite v. Tibbuts, 5 M. & S. 75; [2 Chitty Contr. (11th Am. ert.) 1103, 1104, and notes, 1214, and notes.] But by the 21 Jac. 1, c. 16, called the statute of limitations, it is enacted by s. 3, " That all actions of account and upon the case " which includes assumpsit, Battley v. Faulkner, 3 15. & Aid. 294, u other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, and all actions of debt, grounded upon any lending or contract, without spe- cialty, and all actions of debt for arrearages of rent shall be commenced and sued within six years next, after the cause of such action or suit, and not after." The exception in the above section as to merchants' accounts applies only to the action of account, or on the case for not accounting, and not to an action on the common counts. Inglis v. Haigh, 8 M. & W. 768; Cottam v. Partridge, 4 M. & G. 271. Now, since 19 & 20 Viet. c. 97, s. 9, which enacts that " All actions of account or for not accounting, and suits for such accounts as concern the trade of merchandise between merchant and mer- chant, their factors and servants, shall be commenced, and sued within six years after the cause of such actions or suits, or when such cause has already arisen then within six years after the passing of this act: and no claim in respect of a matter which arose more than six years before the commencement of such action or suit, shall be enforceable by action or suit, by reason onh, of some other matter of claim comprised in the same account, having arisen within six years next before the commencement of such action or suit; " the exception in the act of James is abolished altogether. [See 2 Chitty Contr. (11th Am. ed.) 1217-1220, and notes.] By 21 James 1, c. 16, s. 7, " If any person or persons, that is, or shall be, en- titled to any such action of accounts or actions of debts, shall be at the time of any such cause of action given or accrued, fallen, or to come, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or be- yond the seas, such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited, after their coming to or being of full age, discovert, of sane memory, at large and returned from beyond the seas, as other persons having no such impedi- ment should have done." But now a plaintiff being beyond the seas or in prison is no disability. 19 & 20 Vict. c. 97, s. 10; Cornill v, Hudson, 8 El. & Bl. 429; [2 Chitty Contr. (11th Am. ed.) 1221-1225, and notes.] By 4 Anne, c. 16, s. 19, actions against persons gone beyond the seas may be brought after their return within the time limited by the act of James. And the 19 & 20 Vict. c. 97, s. 12, enacts that Great Britain and Ireland, the Isles of Man, Guernsey, Alderney, and Sark, and the islands adjacent to any of them, being part of the dominions of her majesty, are not to be deemed to be beyond the seas. The period of limitation runs as to joint debtors in the kingdom, though some are beyond the seas. 19 & 20 Vict. c. 97, s. 11. This act has been held not to be retrospective. Jackson v. Woolley, 8 El. & Bl. 778; Williams v. Smith, 2 H. & N. 443 ; but see Cornill v. Hudson, 8 El. & Bl. 429; Flood v. Patterson, 30 L. J. Ch. 486. The limitation on actions on deeds, specialties, &c. is regulated by 3 & 4 W. 4, c. 42 ; s. 3, enacts " That all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance, and also all actions of debt upon any award where the submission is not specialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied (p) A plea of leave and license before 2 H. & N. 79 ; 26 L. J. Ex. 240. See, also, cause of action in an action on a contract is Harris v. Goodwin, 2 M. & G. 416 ; West v. oad, as not amounting in substance to a plea Blakeway, lb. 741 ; Rawlinson v. Clarke, 14 of waiver or exoneration. Dobson v. Espie, M. & W. 187. 432 PLEAS IN CONTRACT. LIMITATIONS. Obs. on any fieri facias, and all actions of penalties, damages, or sums of money given to the party grieved by any statute now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of parliament, shall be commenced and sued within the time and limitation hereinafter expressed, and nol after; that is to say, the said actions of deht for rent upon an indenture of demise or covenant, or debt upon any bond or other specialty, actions of debtor scire facias upon recognizance within tea UTS alter the end of this present session, or within twenty years after the cause of such actions or suits, but not after; and the said other actions within three years after the end of this present session, or within six years after the ca ch actions or .-uits, but not after; provided that nothing herein con- tained shall extend to any action given by any statute where the time for bring- ing Mich action is or .-hall be by any statute specially limited." S. -1. •• That if any person or persons, that is, or are, or shall 'he entitled to any such action or suit, or to such scire facias is, or are, or shall be, at the time of any such cause of action accrued, within the age of twenty-one years, feme covert, non compos mentis, or beyond the seas, then such person or ]•■ rsons shall be at liberty to bring the same actions, so as they commence the same within such times after their comincr to or being: of full ao-e, dis- covert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should, according to the provisions of this act, have done; and that if any person or persons against whom there shall be any such cause of action accrued, beyond the seas, then the person or persons entitled to .any Midi cause of action shall be at liberty to bring the same against such person or persons within such times as are before limited after the return of such person or persons from beyond the seas." S. 5, " Provided always, that if any acknowledgment shall have been made either by writing, signed by the party liable by virtue of such indenture, specially, or recognizance, or his agent, or by part payment or part satisfac- tion, on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such actions to bring his or their action for the money remaining unpaid, and so acknowledged to be due, within twenty years after such acknowledgment by writing, or part payment, or part satisfaction, as aforesaid, or in case the person or persons entitled to such action shall at the time of such acknowledgment be under such disability as aforesaid, or the party making such acknowledgment be, at the time of making the same, beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have re- turned from beyond the seas, as the case may be; and the plaintiff or plain- tiffs in any such action, or any indenture, specialty or recognizance, may, by way of replication, state such acknowledgment, and that such action was brought within the time aforesaid, in answer to a plea of this statute." Actions for penalties given to a common informer must be brought within one year. :J1 Eliz. c. 5, s. 5; [Dyer v. Best, L. R. 1 Ex. 152.] The period of limitation runs from the time the plaintiff might have brought his action, unless he was subject to any of the disabilities specified. Hemp v. Garland, 4 Q. B. 519. And if it once commences to run no subsequent dis- ability will stop its running. Rhodes v. Smethurst, 6 M. & W. 351-356; \jper cur. Homfray v. Scroope, 13 Q. B. 509, 512; Pendergrast v. Foley, 8 Geo. 1; Young v. Machall, 4 Md. 362; Coventry r. Atherton, 9 Ohio, 34; Dillard v. Philson, 5 Strobh. 213; Smith v. Newly. 13 Missou. 159; Ruff v. Bull, 7 Ilarr. i\ J. 11.] In actions on special contracts the period of limita- ii runs from the breach of the contract. Battley r. Faulkner, 3 B. & Aid. 288; Short v. McCarthy, lb. 62G. [In computing the six years the day on which the cause of action arose is always included, because the action might have been commenced on that day. Little v. Blunt, 9 Pick. 491; Presbrey v. Williams. 15 .Mass. 193; Cornell v. Moulton, 3 Denio, 12; but see Smith v. Cassity, 9 B. Mon. 192.] The fraudulent concealment of the cause of action by the party liable does not prevent the statute of limitations running from the accrual of the right of action. The Imperial Gas Co. v. The Lon- don Gas Co. 10 Lx. 39; 23 L. J. Ex. 303; Hunter v. Gibbons, 1 H. & N. 459; [1 Chitty PI. 231, 232. The prevailing rule in the American states is that to a plea of the statute of limitations, in an action on the case for fraud, PLEAS IX CONTRACT. LIMITATIONS. 433 Obs. it is sufficient for the plaintiff to reply generally, thai he did Dot discover the fraud till within six years. See •_> Chitty Contr. (11th Am. ed.) 1235, and note (0 and cases cited; Homer v. Fish, 1 Pick. 435; Sherwood <•. Sutton, 5 Mason, l 13; Nudd r. Hamblin, 8 Allen. L30; Rouse v. Southard, 39 Maine, 401 ; Way v. Cutting, 20 X. II. 187.] By 9 Geo. 4, c. L4, s. 1, in actions of debt, or upon the case grounded upon any simple contract, uo acknowledgmenl or promise by words only, shall be deemed sufEcienl evidence of a new or continuing contract, wherebyto ta any case out of the operation of the statute of James I, or to deprive any party of the benefil thereof, unless such acknowledgment or promise shall be made or contained by, or in some writing, to be signed by the party charge- able thereby; or by pari payment; and co-contractors and executors and ad- ministrators shall imt lose the benefil of the act of .lames 1, so as to be charge- able in respect, or by reason only of any written acknowledgment or promise made, and signed by any other or others of them: provided thai in actions againsl two or more joint contractors, executors, or administrators, it shall appear at the trial or otherwise, that the plaintiff, though barred by the act as to one or more of them, shall nevertheless be entitled to recover against the other or others, by virtue of a mere acknowledgment or promise. This proviso, and also the 3 & i W. 4, c. 42, s. 3, are extended by 19 & 20 Vict, c. 07, s. 11, which enacts that part, payment by one contractor, &c. shall not deprive his co-conl raetor, &c. of the benefil of the said acts. And by s. 13 of the same act, "the provisions of 9 Geo. 4, c. 14, ss. I, * are extended to acknowledgments by agents. By 9 Geo. 4, c. 14, s. 2, if a defendant pleads in abatement the non-joinder of another person, if that person is within the statute of James 1, the plea, shall be found against the party pleading the same. By s. 3, "No indorsement of payment on a promissory note, bill of exchange, or other writing, shall be sufficient proof of such payment, so as to take the case out of the operation of the statute of limitations. And by s. I, the acts applies to a case of set-off. The intention of the act of 9 Geo. 4, c. 14, is well put by Tindal C. J. in Haydon v. Williams, 7 Bing. 166, and should be constantly borne in mind when considering the effect of the statute. He says " The statute did not intend, as it appears to us, to make any alter- ation in the legal construction to be put upon acknowledgments or promises made by defendants, but merely to require a different mode of proof, sub- stituting the certain evidence of a writing signed by the party chargeable, instead of the insecure and precarious testimony to be derived from the mem- ory of witnesses." To take a case out of the statute of limitations there must be a writing containing either an express promise or an acknowledgment, from which a promise can be implied. Per Parke B. Williams v. Griffith, 3 Ex. 342; Tanner v. Smart, 6 B. cS: C. 603; Smith v. Thome, 18 Q. B. 134. [The American cases are generally in harmony with this rule. See them cited in 2 Chitty Contr. (11th Am. ed.) 1238, note (/>), 1240, note (»)■] And the amount of the debt maybe supplied. Cornforth v. Smithard, 29 L. J. Ex. 228; Sidwell v. Mason, 2 H. & N. 306. But a mere proposal, Francis v. Hawkesley, 28 L. J. Q. B. 370; [1 El. & El. 1052], or qualified acknowl- edgment and promise will not be sufficient. A'Court v. Cross, 3 Bing. 328; Tanner v. Smart, 6 B. & C. 603; Collinson v. Margesson, 27 L. J. Ex. 305; Everett v. Robertson, 1 El. & El. 16; Goate v. Goate, 1 H. & N. 29; [2 Chitty Contr. (11th Am. ed.) 1242-1244.] So, a conditional acknowledgment is not sufficient unless there is proof that the condition has been performed. Hart v. Prendergast, 14 M. & W. 741-745; see Collis v. Stack, 1 H. & N. 605; [2 Chitty Contr. (11th Am. ed.) 1246; Betton v. Cutts, 11 N. H. 170; M'Lellan v. Albee, L7 -Maine, 184; Angell Limit. §§ 235-239, 280; Hum- phrey v. Jones, 14 M. & W. 1.] And sec. generally, Goode v. Job, 1 El. & El. 6; Holmes v. Mackrell, 3 C. B. N. S. 789; Godwin v. Culley, 4 H. & N. 373; Moodie v. Bannister, 28 L. J. Ch. 881; Amos v. Smith, [1 H. & C. 238;] 31 L. J. Ex. 423; Hartland v. Jukes, 32 L. J. Ex. 162; [1 H. & C. 667:] Bush v. Martin, [2 H. & C. 311;] 33 L. J. Ex. 17. When an unstamped note was inclosed in a letter as follows: "1 have sent you a note for the money due to you," it was held no acknowledgment, because the note could not be looked at. Parmeter v. Parmeter, 30 L. J. Ch. 508. The acknowl- edgment must be made by the party to be charged or his authorized agent. vol. ii. 28 134 PLEAS IN CONTRACT. LIMITATIONS. Ous. 19 ft 20 Vict. c. 07. p. 13; 9 Geo. 4, c. 14, s. 1, supra. As to acknowledg- ments by co-contractors, see supra. [2 Chitty Contr. (11th Am. ed.) 1248, note (I 1 ). \ infant inav effectually sign an acknowledgment, provided the debt be for necessaries. Williams v. Smith. 4 El. & Bl. 180. An executrix of a surety in a bond may acknowledge the debt. Moodie v. Ban- nister. 28 L. J. C'h. 881. But to a plea under 3 & 4 \V. 4, c. 42, s. 5, that t),. if action on a deed did not accrue within twenty years, a replica- tic:, alleging a written acknowledgment need not set out the writing in its terms. Kempe i?. Gibbon, 9 Q. B^609. Sin. - . l. c. 11. it lias been a matter of doubt whether an acknowledg- ment to a third person is sufficient, but the better opinion appears to be that it will not; Givnfell 17. (iirddlestone, 2 Y. & C. 662; per Alderson B. Good- win o. Cnllev, 4 II. ,v N. 380, per Bramwell B. [Generally, in the Ameri- can Btates, it is not necessary that the new promise should be made to the creditor, but it may be effectual, though made to a third person in the cred- it.. r"> absence. Oliver v. Gray, 1 H. & Gill, 204; Whitney v. Bigelow, 4 Pick. 11": Soulden v. Van Rensselaer, 9 "Wend. 293; Philips v.Peters, 21 Barb. 351 ; Bloodgood v. Bruen, 11 Barb. 427; St. John v. Garow, 4 Porter, 223; Betton v. Cutts, 11 N. II. 170; Frye v. Barker, 4 Pick. 582; Kisler v. Sanders, 40 Ind. 78, 83, and cases cited. In Pennsylvania the new promise must have been made to the creditor or his agent. Christy v. Flemington, 10 Penn. St. 129; Farmers' & Mechanics' Bank v. Wilson, 10 Watts, 261.] Part payment takes a case out of the statute, because it is evidence of a fresh promise. Gowan v. Forster, 3 B. & Ad. 511; [2 Chitty Contr. (11th Am. ed.) 1252, and cases in note (/)■] So, if it is made to an agent. Meg- gin son n. Harper, 2 Cr. & M. 322; [Hill v. Kendall, 25 Vt. 528; Kisler v. Sanders, 40 Ind. 78, 83, and cases cited.] But the part payment must be made under circumstances which warrant a jury in inferring a promise to pay the residue. Wainman v. Kynman, 1 Ex. 118; [Lee v. Wilmot, L. R. 1 Ex. 364; Foster v. Uawber, 6 Ex. 839, 853; Jones v. Jones, 21 X. II. 219; Whip- ple v. Stevens, 22 N. H. 226; Sigourney v. Drury, 14 Pick. 387; Arnold v. Downing, 11 Barb. 554; White v. Jordan, 27 Maine, 370; Steel v. Matthews, 7 Yerger, 313; Allen J. in Shoemaker v. Benedict, 1 Kernan, 176; Kisler v. Sanders, 40 Ind. 78, 80, and cases cited; Atwood v. Coburn, 4 N. H. 315; Smith v. Eastman, 3 Cush. 355; Exeter Bank v. Sullivan, 6 N. H. 124.] A payment of interest, qua interest, is a good part payment. Sims v. Brutton, 5 Ex. 809; per Parke B. 20 L. J. Ex. 41; Scholey v. Walton, 12 M. & W. 510; see Harding v. Edgecombe, 28 L. J. Ex. 313; [Welton v. Robinson, 5 Ired. 341; Frvburg v. Osgood, 21 Maine, 176; Sanford v. Haves, 19 Conn. 591; Jones v. Hughes, 5 Ex. 104; Bradfield v. Tupper, 7 Ex. 27; Maber v. Maber, L. 11. 2 Ex. 153; Amos v. Smith, 1 H. & C. 238. Part payment hi goods, see Cottam v. Partridge, 4 M. & G. 271; Hooper v. Stephens, 4 Ad. & E. 71; Blair v. Ormond, 17 Q. B. 423, 435; Badger v. Arch, 12 Ex. 333 ; Randon r. Tobey, 11 How. (U. S.) 443; Sibley v. Lumbert, 30 Maine, 253.] See as to what is a payment, [2 Chitty Contr. (11th Am. ed.) 1252 el seq.~] As to payment by co-contractor, &c. 19 & 20 Vict. c. 97, s. 14, supra; Cockiill v. Sparke, 32 L. J. Ex. 118; Jackson v. Woolley, 8 El. & Bl. 778; [2 Chitty Contr. (11th Am. ed.) 1256, note (f 1 ), 1257.] As to renewing the writ to save the statute, 15 & 16 Vict. c. 76, s. 11. Anony- mous, 32 L. J. Ex. 88. As to bringing an action against an executor or administrator where the action being before the C. L. P. Act, 1852, s. 135, had abated. Waters v. Earl Thanet, 2 Q. B. 757; Curlcwis v. Mornington, 7 El. & Bl. 283; [(Am. ed.) note, ad finem .] 26 L. J. Q. B. 181 ; 27 lb. 439 ; Sturgis v. Darell, 4 H. & N. 622; 6 lb. 120. PLEAS IN CONTRACT. LIMITATIONS. 435 1. Plea of the Statute of Limitations, (q) That the alleged cause of action did not accrue within [six] years (r) before this suit. [la. Answer of the Statute of Limitations. And the defendant comes and answers that the cause of action mentioned in the plaintiff's writ did not accrue within six years before the suing out of the plaintiff's writ.] 2. Replication that the Defendant was abroad when the Cause accrued, (s) That at the time when the alleged cause of action accrued to the plaintiff the defendant was in parts beyond the seas, that is to say, ; and the plaintiff commenced this suit within six years next after the defendant's first return from parts beyond the seas after the accruing of the said cause of action. 3. Replication to a Plea of the Statute of Limitations (to a Declara- tion by an Executor), that the Testator issued a Writ within Six Years, and that the Executor sued within a Reasonable Time after the Death, (t) Waters v. Lord Thanet, 2 Q. B. 757. 4. Plaintiffs Infancy. Gery v. Coke, Lutw. 242, 243; Chandler v. Villetti, 2 Saund. 118. 5. That Plaintiff obtained a Judgment, tvhich ivas arrested or re- versed, and that he now comes within a Year after such Reversal. 2 Saund. 63 h. 6. Replication in Action against Husband and Wife. Pittam v. Foster, 1 B. & C. 248. 7. That the Plaintiff was imprisoned ivhen the Cause of Action accrued. Pigot v. Rush, 4 Ad. & E. 912. (q) The limitation in cases of simple con- on an indenture, Kempc v. Gibbon, 12 Q. B. tract is six years. 21 Jac. 1, s. 16, s. 3. In 662 ; 17 L. J. Q. B. 298. actions and suits relating to real property it (/•) The statement of when the writ was is twenty years (3 & 4 W. 4, c. 42, s. 42), ex- issued in the commencement of the record, cept that by s. 3 no more than six years' or writ of trial is conclusive evidence of this. arrears of charges thereon can be recovered. Whipple o. Mauley, 1 M. & W. 432. Hunter v. Nockold, 19 L. J. Ch. 177. In ac- (s) 4 Ann. c. 16, s. 19, as to joint debtors, tiODB on a deed, such as for arrears of rent see Obs. ; 19 & 20 Vict. c. 97, s. 11. The ef- due on a lease, Paget v. Foley, 2 Bing. N. feet of the absence of a plaintiff, Obs. ante, 0. 679 ; or a rent-charge, " Strachan v. 431, 19 & 20 Vict. c. 97. s. 10. Forms, Fan- Thomas, 12 Ad. & E. 558; recognizance or nin v. Anderson, 7 Q. B. 811 ; 14 L. J. Q. .'i\v;ird, or on a statute by party grieved, it is B. 282 ; Lane v. Bennett, 1 M. & W. 70. twenty years. lb. For a penalty under a (/) Bui. N. P. 15; Chit, on Contr. ; 2 by-law of a corporation it is six years. Saund. 64 n. See other forms, Curlewis v. Tobacco Pipe Makers v. Loden, 20 L.*J. Q. Mornington, 7 El. & Bl. 283 ; 26 L. J. Q. B. B. 415. Form of a plea on a monev bond, 181 ; 27 lb. 439 ; Stur^is v. Darrell, 4 II. & Blair v. Ormond, 20 L. J. Q. B. 445 ; Tuckey N. 622 ; 6 lb. 120 ; 28 L. J. Ex. 366 ; 29 lb. v. Hawkins, 4 C. B. 655 ; 16 L. J. C. P. 201 ; 472. 436 PLEA? IN CONTRACT. .MAINTENANCE. 8. Plaintiff's Insanity. Tarbuck v. Bispham, 2 M. & W. 2 ; 6 L. J. Ex. 49. 9. Replication in an Action on a Specialty, an Acknowledgment within Twenty Years. Qui) Forsyth v. Bristowe, 3 Ex. 348. [10. Replication of an Acknowledgment in Writing within Six Years. And the plaintiff replies as follows, viz. he says that within six years before the suing out of this writ the defendant executed a writing, a copy whereof is innexed, by which he acknowledged said debt, and agreed to pay the same.] > LUNACY. Obs. — The lunacy of the defendant, and that the plaintiff had notice of it (Dane v. Kirkwall, 8 C. & P. 679), at (he time of making the contract, would seem proper to he pleaded specially, as being a matter ■• sh the transaction either void or voidable in point of law, on the ground of fraud or otherwise." lb. r. 8, T. T. 1853. See form of plea, Harrison v. Richardson, 1 M. & Rob. 504 ; and see Alcock v. Alcock, 3 M. & G. 268 ; Sentance v. Poole, 3 C. & P. 1. As to this defence in general, see [1 Chitty Contr. (11th Am. ed.) 187-191, and notes; Kendall v. May, 10 Allen, 52 ; Sceva v. True, 53 X. II. 627. 630 :] Baxter v. Lord Portsmouth, 5 B. & C. 170. But where a person apparently of sound mind, and not known to be otherwise, enters into a con- tract which is fairly and bona fide executed and completed, and the subject matter of the contract cannot be restored, so as to put the parties in statu quo, such contract cannot be afterwards set aside either by the alleged lunatic or by those who represent him. Molton v. Camroux, 2 Ex. l.S 7 ; -1 Ex. 17. A lunatic is. in law. incapable of stating an account. Tarbuck v. Bispham, 2 M. & TV. 2. The lunacy of the defendant, subsequent to his entering into the contract sued on, is no defence. Jones v. Evans, 8 Dowl.425. [Liability of lunatic on contracts for necessaries, see Sawyer v. Lupkin, 56 .Maine, 308 ; 1 Chitty Contr. (11th Am. ed.) 188, and eases in note (Z 1 ) ; Kendall v. May, 10 Allen, 59 ; Sceva v. True, 53 N. H. 627, 630.] If the;/"/////// lie a lunatic, any one may sue for him in his name. Com. Dig. Ideot, B. 7 ; Rock v. Slade, 7 Dowl. 22. Plea that at the Time of making the Contract, Defendant was a Lunatic. Qx) That at the time when the defendant contracted the said debt [according to the fact] he was lunatic and of unsound mind, and thereby incapable of con- tracting or understanding the meaning of the said contract, as the juaintiff well knew. MALNTEXAXCE. (//) (>/) 3 & t W. 4, c. 42, s. 5. Ex. 94-326 ; replication that the goods sup- Form, Read v. Lejrard, 6 Ex. 037; plied were necessaries. Read v. Legard, 20 L. J. Y.\. 309. See a form of replication supra. that plaintiff was lunatic, and rejoinder that (//) Ante, 307, note (/). See forms of plea, tic- defendant did not know it, Beavan /•. Mc- Spryc v. Porter, 7 El. & Bl. 58; Findon v. Donnel, •■> Ex. 50'J ; 10 Ex. 184; 23 L. J. Parker, 11 M. & W. 675. PLEAS IX CONTRACT. MARRIAGE, ETC. 137 MARRIAGE, BREACH OF PROMISE OF.(z) 1. General Issue. Non assumpsit, ante, 284. 1. Plea to an Action for Breach of Promise of Marriage^ that the Plaintiff misconducted herself after the Promise. That, the defendant made the said promise on the faith and under the sup- position that the plaintiff had been and was a chaste and modes! woman, and a son of correct habits ami demeanor, hut that after (a) the making of the Baid promise, and before any breach thereof, the defendant discovered thai the plaintiff had no! been and was QO t a. .-hush, and modesl woman, and a person of correct habits and demeanor, for which reason the defendant rrfused to marry the plaintiff. 3. Plea that Plaintiff had had Carnal ],i terco urse loith a Third Per- son before the Promise, which Defendant did not discover until of ter- wards; and similar Plea that she had had a Child. Young v. Murphy, 3 Bing. N. C. 58. (z) See Declarations, anti , 205, and notes. Pleas of misconduct should nol lie pleaded without the strongest ground to expe. on them, as the pleading them doubtless much enhance the damages. See other tonus, Bench v. Merrick, I C. & K. 463. Non assumpsit would put the contract between the parties in issue, and it would therefore seem to be the proper plea where the cont racl was uot binding on the de aut by reason of its nol being mutual o part of the plaintiff. Se ■ Harrison v. I Ld. Ray. 386; Holt v. Ward, Stra. 850, Daniel v. Bowles, 3 ('. & P. 553; ant . 212. Evidence of the promise. Stark. Ev. Mar- : Chit. jr. Contr. Where the p as to marry on request, or conditio: a plea denying the request or performance of the condition would be good; Short v. Stone, s Q, B. 58 ; but if the defendan put it out of his power to perform his prom- t marrying the plaintiff by mar. another woman, then, if that be averred in the declaration, a plea stating I hai plaintiff quested defendant to m would be bad. Short v. Stone, 8 Q. B ('aims v. Smith, 15 L. J. Kx. 106; [15 M. & W. L89 ;] and see Lovelock v. franklin, 15 L. J. Q. B. 146; ante, 206, note (c). Clements v. Moore, 1 1 Ala. 35 ; Gre inup v. Stoker. 5 Gil. 202; Blattmacher v. Saal 29 22.] Plea of fraud. Wharton >-. Lewis, l C. & P. 529 ; Foote o. Hayne, [b. 546; form a 393, I rat d PJ i thai plaintiff contracted a disease an ne in Sad health. Atchinson v. Baker, Peake Add. ('as. L03. 124, S. C. This was held to be a bad p ea. Hall v. Wright, El., Ml & El. 746 ; 27 L. J. Q M. 345; 29 II.. 43. Plea that plaintiff "absolved, exonerated and discharg d " defendant from his prom, ise. King v. Gillett, 7 M. & W. 55. Under • <1|rl1 a plea, the defendant must prove the proposition to rescind on the part of the plaintiff, and that that proposition was ac- I i" by the defendant ; I i bat iu Eacl it comes to the same thing as the plea of rescinded contract. Post, 138. \ ■ plaintiff was a person of gross manners and tittle feeling, wherefore defendant de- clined the in., ri-i.i ' da y. Cook, 4 Esp. B. 257. [f the plaintiff since the contract has engaged herself to anoth r p. rson, then traverse the averment in the declarati. her readiness to marry the defendant, \ plea of plaintiff's pre-contract with another is bad ; Beechy v. Brown, El., Bl EL 796; and so also is a plea that the defendant had afterwards discovered that the plaintiff had been lunatic. Baker v. Cartwright, 30 L. J. C P. 364. The marriage of a woman, plain- tiff or defendant, will not abate the action. I 352, s. ui : ante, 272, notes. It she is taken in execution, Bhe would be '. id if she have no separate prop Thorpe v. Anjrli s, l D. & L, 831 ; EdwarSs V. .Mania, 21 I.. .1. Q. B. 86. In 8U< therefore, it would b to pr< agairfst the husband also by suggestion or writ of revivor under C. L. P. Act, 1852, ss. 129, 130; and see 2 Saund. 72/.-. As js in erro n;7. misconduct ma\ be set up, averring that defendant had no knowledge ins of knowledge thereof. See Irving rood, 1 < P. 350; [2 Chitty I 'ontr. (Uth Am. ed.) 793, 794 ;] JB< a< Ii v. Merrick, 1 C:tv. & K. 463. form of : that the plaintiff was of intemperate h Harbert i>. Edgington, I C. & K. 464 to bad character, see 2 Chitty Contr. (llth Am. ed.J 793, 794; Van Storch, 71 Penn. St 245.] 438 PLEAS IN CONTRACT. MASTER AND SERVANT. 4. Plea that the Time for the Marriage had not elapsed. That the day agreed on [or " a reasonable time "} for the marriage had not elapsed before this suit. 5. Plea of Mutual Rescission of Contract, (b) That before breach the agreement was mutually rescinded by the plaintiff and the defendant. ♦ MASTER AND SERVANT. Obs. — See ante, 207, Declarations, and notes thereto. 1. General Issue. Non assumpsit, ante, 284. 2. Plea to an Action for discharging, that the Plaintiff was incom- petent, (c) That at the time of the making of the said agreement the plaintiff repre- sented to the defendant that he was reasonably competent and had sufficient skill and ability to perform the said service, and that he the defendant entered into the said agreement upon the faith of such representations ; whereas the plaintiff was not reasonably competent or able to perform the said service, wherefore the defendant discharged the plaintiff from his said service, which is the alleged breach. "» v 3. Plea that the Plaintiff misconducted himself and was dismissed on that Account, (d) That after the making of the said contract, and before the alleged dismissal, (6) Forms, Hall v. Wright, 27 L. J. Q. B. Cussons v. Skinner, 11 M. & W. 161 ; Spots- 315; Short v. Stone, 8 Q. B. 358 ; Davis v. wood v. Barrow, 5 Ex. 110. [See Durgin v. Bomford, 30 L. J. Ex. 139 ; [6 H. & N. 245.] Baker, 32 Maine, 273 ; Morrell v. Bums, + See King v. Gillett, 7 M. & W. 55 ; 10 L. J. Denio, 121.] Unless this defence be pleaded Ex. 164. An exoneration by the plaintiff it cannot be given in evidence, even in miti- from the promise may be implied from the gation of damages. Speck v. Phillips, 5 M. conduct and demeanor of the parties, and & W. 279. See plea that a clerk set up a the total cessation of intercourse and corre- claim to partnership with his master, where- spondence is evidence of such exoneration, fore the master dismissed liim, Amor v. Davis v. Bomford, supra. Fearon, 9 Ad. & E. 548 ; and see form of (c) See Harmer v. Cornelius, 5 C. B. N. plea justifving the dismissal of an articled S- 236. clerk, Mercer v. Whall, 5 Q. B. 447, and (d) See [2 Chitty Contr. (11th Am. ed.) other pleas in the forms referred to, ante, 211 843, and note [d) ;] Cooper v. Whitehouse, 6 et seq. ; Spotswood v. Barrow, 5 Ex. 110; C. & P. 545. See other forms of similar 19 L. J. Ex. 226. That plaintiff absented pleas, Baillie v. Kell, 4 Bing. N. C. 638 ; and herself from her service all night. Turner v. a form of plea justifying the dismissal of a Mason, 14 M. & W. 112. See Burgess v. surgeon's assistant. Wise r. Wilson, 1 C. & Beaumont, 7 M. & G. 962. That the plain- K. 662; and see Phillips v. Clift, 28 L.J. tiff got drunk contrary to his undertaking. Ex. 153 ; [5 II. & N. 168.] It is sufficient Monkman v. Shepherdson, 11 Ad. & E. 411 ; to prove part only of the plea, if the part Clarke v. Allatt, 4 C. B. 335. Discharged proved be enough to justify the dismissal. lb. for seducing defendant's female sen-ant, And the motives of the master in dismissing Atkins v. Acton, 4 C. & P. 208. As to the the servant cannot be inquired into, provided form and particularity of the plea, see Hor- a cause of justifiable dismissal existed, Ridg- ton v. M'Murtry, 5 H. & N. 667 ; 29 L. J. way v. Hungerford Co. 3 Ad. & E. 171, al- Ex. 260. though not known to the master at the time. PLEAS IN CONTRACT. NEW ASSIGNMENT. 439 the plaintiff wilfully misconducted himself by [according to the fact], where- fore the defendant dismissed the plaintiff, which is the alleged breach. 4. Plea of Misappropriation of Money. Smith v. Thompson, 8 C. B. 44. 5. Plea denying the Dismissal, (e) That the defendant did not dismiss the plaintiff, as alleged. 6. Plea to a Declaration for discharging a Servant, that he was dis- missed by due Notice. (/) That one calendar month before the defendant put an end to the said ser- vice he gave to the plaintiff one calendar month's notice of his intention to put an end to the said service, and to discharge the plaintiff therefrom. 7. Plea that the Plaintiff a Seaman suing for Wages had Deserted. (g~) Robins v. Power, 27 L. J. C. P. 257 ; [4 C. B. N. S. 778.] MONEY HAD AND RECEIVED. Ante, 29. MONEY LENT. Ante, 28. MONEY PAID. Ante, 28. MORTGAGE. Ante, 214. Greneral Issue. Non est factum, ante, 285. NEW ASSIGNMENT. Obs. — A new assignment is in general necessary, where the plaintiff has, or has had, two causes of action against the defendant, either of which the decla- ration will fit, and the defendant having a supposed answer to one such cause of action, pleads that answer. See Steph. and 1 Chit. PI. 7th ed. p. 653, &c. ; Taylor v. Cole, 1 Sm. L. C. 5th ed. Ill, and Wins. Saund. 299, 300/. In such case the plaintiff must reply, by repealing, as it were, the declaration, (e) See Powell v. Bradbury, 7 C. B. 201 ; as it would seem to be bad to add that term Lnsh v. Russell, 5 Ex. 203 ; 19 L. J. Ex. 56, by special plea. See Williams v. Byrne, 7 2U -, a Ad. & E. 177; ante, p. '213. If any wages (/) See another form, &c. Nowlan v. Ab- are due, plead payment into court to that lett, 2 Cr., M. & R. 55 ; Parker v. Ibbetson, part of the declaration. 4 C. B. N. S. 346 ; 27 L. J. C. P. 236. See (e pleaded together withoni leave. See post, Tons, " New Assignment," " Tre 1. New Assignment to a Plea to Money Counts. (A) That he sues not [or " not only," as the case requires'] for the debts [or "causes of action "] in the said plea mentioned, but [or "but also"] for other debts [or "causes of action"]. '2. New Assignment of Breaches of Another Agreement. That he sues not for breaches of the agreement [or "contract," or "prom- ise "] in the said plea mentioned, but for breaches of another agreement [or " contract," or " promise "]. (i) 3. New Assignment of other Breaches. That he sues not [or " not only," as the case may require'] for the breaches of the said agreement [or " contract," or " promise"] in the said plea admitted, but [or "but also "] for other breaches of the same, (k) NOLLE PROSEQUI. Obs. — As to a nol. pros, in general, see 2 Chit. Arch. 11th ed. 1499; Chitty's Forms, 9th ed. 840; 1 Saund. 207. If entered before trial, its effect is to withdraw that part of the claim from the consideration of the jury in that cause; but it does not prevent a second action being brought for that part of the claim. Amor v. Cuthbert, 3 M. & G. 1 ; S. C. 2 Dowl. N. S. 160. If entered after judgment it operates as a retraxit and bars any future action for the same cause. A nol pros, may be entered at any time even after the trial. Fallows v. Bird, 2 Cr., M. & R. 457„ And where no issue has been joined as to a particular count, the proper course is to enter a nol. pros, on it after trial of the other issues. Luckie v. Gompertz, 1 Car. & M. 55 ; Allsop v. Smith, 7 C. & P. 708. A nol. pros, cannot be entered after verdict or judgment against the plaintiff. Where the defendant has demurred to the whole (Drummond v. Dorant, 4 T. R. 36) or to part (Butler v. Mapp, 10 Bing. 391), of a declaration, the plain- tiff cannot in general rectify his error by entering a nol. pros, to the part ob- jected to. In Quarrington v. Arthur, 11 M. & W. 491; S. C. 2 Dowl. N. S. 1036; [1 Chitty PI. 228, and cases in note (n);] he was allowed to do so as to issues in fact, the defendant having succeeded on other issues in law, and having then moved for judgment, as in case of a nonsuit. By 3 & 4 W. 4, c. (h) See forms given in schedule B of (k) It will be advisable in this and the the C. L. P. Act, 1852, post, Torts, "New last case to distinguish by date or otherwise, Assignment," "Trespass." the agreement or breaches, new assigned (i) As the count in a case of this kind from those pleaded to. See forms new as- would include om agreement only, the plain- signing to a plea of bankruptcy breaches tiff could not new assign that he was suing of covenant after the bankruptcy, Elder v. not only on the agreement pleaded to but Beaumont, 8 El. & Bl. 353; 27 L. J. Q. B. also on another. The proper course in such 25 ; and to a plea of eviction breaches before '. caseistohave separate counts in the deela- the eviction, Davies v. Underwood, 2 H. & N. ration on each agreement ; and see 1 Wins. 570; 27 L. J. Ex. 113. Saund. 29 ( J a. 442 PLEAS IN CONTRACT. PARTNERSHIP, ETC. Obs. 42, s. 32, "when several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, every such person shall have judgment for and recover his reasonable costs; "and by s. 83, " where any nolle prosequi shall have been entered upon any count, or as to any part of any declaration, the defend- ant Bhall be entitled to, and have judgment for, and recover his reasonable ts in that lnhalf." This applies where the nol. pros, is entered as to part of the sum claimed. Williams v. Sharwood, 3 Bing. N. C. 331; 5 Dowl. 371. S. C. When entered in consequence of a demurrer, the costs of the demurrer must be paid; Goddard v. Smith, 2 Salk. 456; but such costs need not lie paid or deducted until the final taxation. Bertram v. Gordon, 6 Taunt. 441. Where the plaintiff in effect abandons his cause of action as to the other issues as well as to the one on which the nol. pros, is entered, the de- fendant will he entitled to the costs of those other issues also. Godee v. Goldsmith. 2 M. & W. 102; 5 Dowl. 288, S. C.; Coates v. Stephens, 2 Cr., M. & R. 118; 3 Dowl. 784, S. C.; Topham v. Kidmore, 5 Dowl. 67G. In actions ex contractu the plaintiff cannot enter a nol. pros, as to one defend- ant without releasing the others, [1 Chitty PI. 594,] except when the one defendant pleads some plea which goes to his personal discharge, such as bankruptcy- discharge under the insolvent act, or the like. 1 Wnis. Saund. 207 c. But a plea of infancy is not within this rule. Boyle v. Webster, 21 L. J. Q. B. 202. [A different rule prevails in some states. Ante, 407, note (h); 1 Chitty PI. 50, note (#).] 1. Nolle Prosequi to the Whole or Part of a Plea. Replication to the other pleas, as usual.~\ And the plaintiff says that he will not further prosecute his suit in respect of the causes of action in the \_second~\ plea pleaded to [or, if the whole plea be not admitted, say "so far as the said plea relates to," stating the portion^ ; therefore as to those causes of action let the defendant be acquitted, and go thereof without day [$■£•]• 2. The like, as to One of Several Defendants. And as to the plea of the defendant, A. B., by him above pleaded, the plain- tiff says that he will not further prosecute his suit against the said A. B. ; therefore let the said A. B. be acquitted of the premises in the declaration mentioned, and go thereof without day [#c.]. (I) NON-JOINDER. See li Abatement," ante, 268, Obs., and Forms 1, 3, 5, 6, 7, 8, and notes thereto. PARTNERSHIP OF THE PLAINTIFF AND DEFENDANT. Obs — See ante, 215 et seq. The defence that the plaintiff and defendant are partners, and that the claim forms part of their unsettled partnership account is available under never indebted. Worrall v. Grayson, 1 M. & W. 166; Gregory v. Hartnoll, 1 M. & W. 183; Pearson v. Skelton, 1 M. & W. 505: Bosanquet v. Wray, 6 Taunt. 597. "If the plaintiff was one of the pur- chasers of goods sold, he cannot say that the defendant was indebted to him." Payne v. Hales, 5 M. & W. 599. See the cases and law on the point that one partner cannot sue another at law, in reference to the unsettled partnership accounts, [1 Chitty Contr. (11th Am. ed.) 339 et seq.; ante, 215.] It is a defence when one firm is suina; another that either of the parties is a member of both firms. [1 Chitty Contr. 343, and note (/), 344.] Form of (/) As to the effect of this and costs, see Obs. supra. PLEAS IN CONTRACT. PAYMENT. 443 Dbs. plea, Mainwaring v. Newman, 2 B. & P. 124; 2 Chit. R. 539; Harvey v. Kav, 9 B. & C. .036, Bedford v. Brut ton, 1 Bing. N. C. 399. One partner may sue the other when there is a balance struck although it do not extend t« every partnership account, provided it relate to every part of a particular transaction between the partners as such of an insulated and separate nature, and there need not be any express promise to pay the balance struck. Wrav v. Milestone, 5 M. & W. 24; Green ». Beesley, 2 Bing. N. C. 112; [ante, 215, 21(5.] As to the rights of partners in the county courts, see the county court acts. Plea to an Action against a Retired Member of a Firm, that when he retired another Partner came in, and that by the Consent of all Parties the Debts of the Old Firm were transferred to the New. (m) Hart v. Alexander, 7 C. & P. 746 ; S. C. 2 M. & W. 484. PATENT. Obs. — See Form of Declaration, ante, 218. The plea of the general issue will vary according to the forms of declaration. In actions for money due for a license to use a patent, the defendant cannot dispute the validity of the patent. Lawis v. Purser, 6 El. & Bl. 930; Smith v. Scott, 28 L. J. C. P. 325. So, also, for the assignment of patents, Smith v. Veale, 2 C. B. N. S. 67; Hall v. Conder, 2 C. B. N. S. 22. See Hills v. Laming, 9 Ex. 256. PAYMENT. Obs. — By Rule of T. T. 1853, s. 14, " Payment shall not in any case be allowed to be given in evidence in reduction of damages or debt, but shall be pleaded in bar." S. 13, " In any case in which the plaintiff (in order to avoid the expense of the plea of payment) shall have given credit in the particulars of his demand for any sum or sums of money therein admitted to have been paid to the plain- tiff, it shall not be necessary for the defendant to plead the payment of such sum or sums of money. " But this rule is not to apply to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance, with- out giving credit for any particular sum or sums." See, as to how the par- ticulars are affected by this rule, ante, 36. Unless pleaded, payment cannot be given in evidence even for the purpose of showing that no interest was due on an admitted debt; Adams v. Palk, 3 Q. B. 2; nor can it be shown in mitigation of damages, though a set-off on an account stated be pleaded; Cooper v. Morecroft, 3 M. & W. 500; and the defendant prove entries of payments in the handwriting of the plaintiff; Lin- ley v. Polden, 2 Dowl. 780; indeed, the reason for making the rule, was to prevent a defendant who had a case of false payment, pleading only the general issue and losing the costs of that issue, but reducing the plaintiff's claim to nominal damages by the surprise thus effected. Per Alderson B. Speck v. Phillips, 5 M. & W. 282; and see Lord v. Ferrand, 1 D. & L. 630. Payment must be pleaded in all cases where payments, as such, are not cred- ited in the particulars. Mercy v. Galot, 3 Ex. 851; 18 L. J. Ex. 347; Sme- thurst v. Taylor, 12 M. & W. 545. See ante, 35. The plea will be taken to apply to the plaintiff's demand, whatever it may be proved to be, and there- fore it is not in general necessary for the plaintiff to new assign. Freeman (m) As to pleading to a bill the partner- them, sufficient to defeat the action. Gor- ship of plaintiff and defendant, see Fox v. don v. Ellis, 7 M. & G. 607 ; S. C. 2 D. & L. Frith, 10 M. & W. 131 ; and see a form of 308. Subsequent partnership no defence tc plea, in an action by two partners, of an an action for a loan. Garrard v. Harding, 5 agreement between the defendant and one of M. & G. 477. 444 PLEAS IN CONTRACT. PAYMENT. . v. Crafts, A M. & W. I : James v. Lingham, 5 Bing. X. C. 553. See ante, New Assignment," and Obs. 440. The defendanl therefore cannot by (n . Liner payment of a sum which the plaintiff does not claim in the pr, j tion, gain any advantage. Dyte p. Hawker, 1 D. & L. 181); Ken- ningham v. Alison, 2 Dowl. N. S. 658. Pleas of paymenl to bills, anU . 336, 337. fendant will not be compelled to give particulars under a plea of payment. Phipps '•. Southern, 8 Dowl. 208. See, also, Ireland v. Thompson, 4 Bing. X. C. 71G. be C. L. P. Act, L852, s. 75, "Pleas of payment shall be construed dis- tributively, and if issue is taken thereon, and so much thereof as shall be sufficient answer to part of the causes of action proved shall lie found true by the jury, a verdict shall pass for the defendant in respect of so much of the causes of action as shall be answered, and for the plaintiff for so much of the ran-'- of action as shall not be so answered. The above section in fact ex- tern!- the doctrine of Cousins v. Paddon, 2 Cr., M. ^ R. 547, to all descrip- tions of pleadings. The common plea of payment will suffice when the payment has been made lier by check, Pearce v. Davis, 1 M. & R. 366, per Patteson J.; see Hough v. May, 4 Ad. & E. 054; or by bills of exchange which have since ome due and have been paid; Smart v. Nokes, 6 M. & G. 911; or by the delivery of goods as money; Caiman v. Wood, 2 M. & AY. 467; [Borah v. Curry, 12 111. 66; Hooper, v. Stevens. 4 Ad. & E. 71;] or by the transfer of money in account; Eyles v. Ellis, 4 Bing. 112; Stewart v. Aberdein, 4 M. & \Y. 218; see Bodenham v. Purchas, 2 B. 6c Aid. 39; or by money which the defendant has paid to a third person, and which has been afterwards allowed by the plaintiff in a written account with the defendant: Walker v. Andrews, 3*M. & W. 312; and see Lawes v. Eastmore, 8 C. & P. 205; Bramston v. Robins, 4 Bing. 14; or on an agreed set-off; Foster v. Dawber, 6 Ex. 839; 20 L. J. Ex. 385; or by proof that a creditor received the proceeds of a check drawn in his favor. Mountford v. Harper, 1G M. & W. 825; 1G L. J. Ex. 184. But a written receipt is not conclusive even though the parties agree that it shall be 'so. Foster v. Dawber. ubi sup. ; [1 Chitty Contr. (11th Am. ed.) 8, and cases in note (e 1 ); 2 lb. 1118, 1119, and notes (it) and (y) and cases cited.] The plea will also suffice where it has been agreed between the parties that the debt of one shall be deducted from that of the other. Per Parke B. Pinnock v. Harrison, 3 M. & AY. 537; and if two parties state an account, and it is allowed and settled between them, that amounts to pay- ment, and not to set-off. Per Alderson B. Sinclair v. Baggeley, 4 M. AY. 314. And if money is sent as ordered by the creditor, or in the usual course _ of business it will be a good payment. Walter v. Haynes, R. & M. 149; AYar- wick v. Noakes, 1 Peake, 07." See Kington v. Kington, 11 M. & W. 233-235; 12 L. J. Ex. 248 ; see, also, Gordon v. Strange, 1 Ex. 4 77. and Caine v. Coul- son, 32 L. J. Ex. 97; [Crane v. Pratt, 12 Cray, 348; Gurney v. Howe, 9 Gray, 408; Williams??. Carpenter, 36 Ala. 9; Wakefield v. Lithgow, 3 Mass. 249.] And if a creditor order his debtor to pay third party he must do so according to order, otherwise it is no payment. Smith v. Ferrand, 7 B. & C. 19-21. Where, however, it is doubtful whether the facts amount to pay- ment or set-off, it will bo better to plead both pleas. See Fidget! r. Penny, 1 Cr., M. & lb lo.s; Palmer v. Costerton, 4 Q. 13. 525; see Lucas <-. Wilkin- », 1 H. c\ X. 42o ; The Lichfield Union v. Green, 1 II. & X. 884. The payment may be made by anyone as agent for and on account of the debtor; Simpson r. Eggington, 10 Ex. 845 ; 24 L. J. Ex. 312; who may ratify at tin; trial a payment. lb. [And when payment is so made, the creditor and the person making the payment may rescind the transaction at any time before the debtor has affirmed the payment. See Martin B. in Walter v. James, L. R. G Ex. 124, 128.] The payment must lie made to title creditor or his agent for the purpose. And if a general agent receive money in the ordinary course of business, it will be a good paymenl ; Capel v. Thornton, 3 ('. & J\ 352; but not otherwise. Kaye v. Brett, 5 Ex. 269. [See Patten v. Fullerton, 27 Maine, 58; Catterall v. Hindle, L. II. 2 C. P. 368. So it will be a good payment for goods sold, if made to the. person to whom it was agreed payment should be made, at the time of sale, the authority of that PLEAS IX CONTBACT. PAYMENT. 4 i~ Obs. person not being in the mean time revoked. Marsh v. Laforest, 7 La. Ana. 7.] So payment may be made t le of two partners. Porter v. Taylor, 6 ML & S. 156; Kingw. Smith 4 C. & I'. L08; frarrer v. Hutchinson, 9 Ad. & E. 641; [2 Chitty Contr. (11th Am. ed.) 1098, 1099.] So to one executor or trustee. Husband v. Davis, I 1 **'. B. 645; [Lord Hardwicke, in Carr v. Read, 8 Atk. 695; Pemberton v. Chapman, 7 El. & Bl. 210; S. C. El., Bl. & El. 1056.] So payment under process of court is good. Place <•. Potts, 8 Ex. 705; l<» Ex. 370. The authority to paj must have come from all the de- fendants expressly or impliedly; Mclntyre <•. Miller, 13 M. ^ W. 72.">. hut if ;i payment be made by one of two defendants, Walters^. Smith, _' 15. ^ Ad. 889, or by one of two makers of a note, Beaumont <•. G-reathead, 2 C. B. 494, the authority of the other will be implied, Thorne v. Smith, 20 L. J. C. P. 71, [lo C. B. 659,] ami ii should lie pleaded as a paymenl by both. If separate actions be brought againsl two for a joint debt, ami one pay it, the court will siav the action againsl il ther without costs. Bailey v. Haines; Bailey v. Bracebridge, 13 <,>. B. 815-832. Paymenl will sometimes be presumed without a plea of the statute of limita- tions, see [2 Chitty Contr. (11th Am. ed.) 1103, 1104.] In regard to the appropriation of payments, the party paying has a right to apply the payment as he sees lit, and if he owe- several debts he can desig- nate to which the payment shall be applied. But if he do not at the time of payment specifically appropriate it, the person to whom ii is paid may apply it as he pleases. Waller v. Lacy, 1 M. & G. 54; 9 L. J. C. 1". 21 7: see Sim- son v. Ingham, 2 B. & C. 65: [2 Chitty Contr. (11th Am. ed.) 1111-1118, and notes: Haynes v. Nice, 100 Mass. 327, 329 and cases cited; Ramsay r. Warner. 97 Mass. 8, 13. "The general rule of law, in case of payments by a debtor to one who is his creditor upon distinct transactions, or for distinct amounts, when neither party makes an appropriation at the time. i-. thai the payments are applied by law to the liabilities of earliest date.'' Crompton v. Pratt, 105 Mass. 255, 257; Worthleyu. Emerson, L16 .Mass. 374; 2 Chitty Contr. (11th Am. ed.) 1110, and note (it 1 ), 1111, and note (o), and cases cited.] Payment of a smaller sum cannnot he pleaded in satisfaction of a greater; Down v. Hatcher, 10 Ad. & E. 121 ; [2 Chitty Contr. (11th Am. ed.) 1101, and note (?/) ; ante, 28.S; and Seymour v. Minturn, 17 John. 169, and the fol- lowing cases there cited; Walen v. Kirby, 99 Mass. 1, 3; Twiehell v. Shaw, 10 Cush. 48;] unless some agreement, founded on good consideration, he shown for giving up the residue, such as the payment of part be/on the day, or by a stranger out of his own moneys; Lewis v. Jones, 4 B. & C. 506; [Brooks v. White, 2 Met. 283; Lee v. Oppenheimer, 32 Maine. 253; Good- now v. Smith, 18 Pick. 414; Reid v. Bartlett, 19 Pick. 273; Rose v. Hall. 26 Conn. 392; Smith v. Brown, 3 Hawks, 580; Kellogg v. Richards, 14 Wend. 116 ; Sanders v. Branch Bank, 13 Ala. 35:1; Boyd v. Hitchcock, 20 John. 76;] or under a creditor's composition; ante, 36 I. note (o); [Huston J. in Milliken t\ Brown, 1 Rawle, 397, 398; Hinckley v. Arey, 27 Maine, 362; Cutter v. Reynolds, 8 B. Mon. 596; Shaw C.J. in Langdon v. Langdon, 4 Gray, 189;] or then; be a release under seal of the residue. But the damages and costs tra the debt, are not to be estimated as a part of the debt given up in this sense, and therefore payment of the amount of the debt may be well taken in satisfaction of both debt and damages] and even too it seems of costs incurred. Corbet t v. Swinburne, 8 Ad. & E. 673. " If a claim be a liquidated and ascertained sum, payment of part cannot be satis- faction of the whole, although it may be under certain circumstances evidence of a gift of the remainder. But the gifl of a thing of uncertain value may he a satisfaction of any sum due on a simple contract." Per Parke B. Sibree i>. Tripp. 15 M. & W. 33 ; 15 L. J. Ex. 318. See Cooper v. Parker. 15 C. B. 822; 24 L. J. Ch. 68; [M'Kean C. J. in Musgrove v. Gibbs, 1 Dallas, 217; Brooks v. White, 2 Met. 285, 286; Perkins r. Lockwood, 100 Mass. 249; Bowker v. Harris, 30 Vt. 424; Eaton v. Lincoln. 13 Mass. 424; Watkinson v. Inglebv, 5 John. 386; Blinn v. Chester, 5 Day, 359; Jones t>. Bullitt, 2 Litt. 49.] 446 PLEAS IN CONTRACT. PAYMENT. 1. General Plea of Payment to the whole of a Count, or to the whole Declaration, (n) That before action he satisfied and discharged the plaintiff's claim by pay- ment, (o) [la. Answer of Payment. And the defendant comes and answers that he has paid the plaintiff the sum of dollars, which was the full amount of the amount stated in the plain- tiffs hill of particulars.] '1. Plea of Payment after Action, (jp) That after action he satisfied and discharged the plaintiff's claim [and all damages and costs in respect thereof] by payment. (n) C. L. P. Act, 1852, sch. B, 40. As to what is payment, see ante, Obs. Where no time for payment of a debt is provided by the parties, it impliedly accrues due immediately the consideration for it has attached, with- out demand : and if payment is made before action tin- creditor is not entitled to nominal damages; Beaumont v. Greathead, 2 C B. 494 ; 15 L.J. C. P. 130; unless pleaded it cannot be given in evidence, vide Obs. R. 14, T. T. 1853; Speck v. Phillips, 5 M. & W. 282. As to part payment, ante, 20. Where there is no doubt about the sum which the defendant can prove he has paid, it is advis- able to plead to part only, because if the defendant prove payment of the part he pleads as having paid, he will get the costs of that issue, though he lose the cause. If he prove less than he pleads as having paid, he will be allowed for as much as he does prove in the estimate of the extent to which his defence reaches. Cousins v. Paddon, 2 Cr., M. & R. 547 ; S. C. 4 Dowl. 438 ; Lord v. Ferrand, 1 D. & L. 630 ; and if, with the help of his other pleas, the aggregate of his defence is enough to equal the plaintiff's claim, the defendant will get the costs of the plea of payment with the others; but if the ■ ■of his defence is not enough to equal the plaintiff's claim, the defendant will not in such case get any costs on his plea of payment, even though he has been put to expense in proving that portion of it which he does prove, and which nevertheless counts for him in reduction of the damages. Tuck v. Tuck, 5 M. & W. 109; Moore v. Bntlin, 7 Ad. & E. 597 ; Kilner v. Bayley, 5 M. & W. 384. Where the plea is to part only of the cause of action, it is necessary to allege with certainty in the commence- ment the sum to which it is intended to be pleaded. Dunn v. De Nuovo, 3 M. & G. 107. Take care that it is not pleaded to more than is answered in the body, otherwise the de- fendant may demur ; Wright v. Acres, 6 Ad. & E. 726 ; and the plea would be bad after verdict; Down v. Hatcher, 10 Ad. & E. 121 ; but the plaintiff could not sign judgment ; Wood v. I'arr, 5 Bing. N. C. 247 ; outer, if there be not pleas on the record applied in their commencement to even/ part of the plaintiff's demand, so that some part is left unanswered, in that case judgment may be signed for the unanswered part. Chittv v. Dendv, 3 Ad. & E. 319 ; Henrv v. Earl, 8 M. & W" 228 ; Chit. Arch. Pr. 8th ed. p. 265. The defendant need not prove payment of the whole sum stated in the plea ; if he prove payment of sufficient to cover plaintiff's real demand that will suffice ; Falcon v. Benn, 2 Q. B. 314 ; and if he prove less than the sum stated in the plea, he will be allowed so much in reduction of damages. Lord v. Ferrand, 1 D. & L. 630. (o) If there be two joint plaintiffs, a pay- ment to one would in general be a payment to both, and may be pleaded as such. Beau- mont v. Greathead, 2 C. B. 494 ; Porter v. Taylor, 6 M. & S. 156 ; Farrer v. Hutchin- son, 9 Ad. & E. 641. If the payment has been made to a person whose receipt of it makes it a good payment against the plain- tiff, it should be pleaded as though made to plaintiff himself. A plea of payment t© plaintiff's wife was held bad for not averring that she was his agent to receive it. Offlev v. Clay, 2 M. & G. 172 ; [Thrasher v. Tnttle", 22 Maine, 335.] (/<) If the debt be paid and accepted after action, the plaintiff cannot further maintain his action to recover nominal damages. Beaumont v. Greathead, 2 C. B. 494 ; 15 L. J. C. P. 130 ; Thorne v. Boast, 12 Q. B. 808 ; 17 L. J. Q. B. 340; Hills v. Mavnard, 10 Q. B. 27.3 ; 16 L. J. Q. B. 306 ; and that though nothing be said when such payment was made of a satisfaction for costs incurred ; Horner v. Dcnham, 12 Q. B. 813 ; see Cooke v. Hopewell, 11 Ex. 555; but such pavment must be pleaded or plaintiff will be entitled to a verdict for the whole debt due when action brought. Nosotti v. Page, 20 L. J. C. P. 81 ; [Ash v. Pouppeville, L. R. 3 Q. B. 86.] See Goodwin v. Cremer, 22 L. J. Q. B. 31. Indorsee may go against acceptor to recover costs though pending action amount of bill be paid by third party. lb. PLEAS IN CONTRACT. PAYMENT INTO COURT. 447 3. Plea of Payment on a Judgment, (ff) That after the said judgment was recovered, and before action, he satisfied and discharged the said judgment by payment. [4. Plea of Payment by a Set-off of Cross Demands in an Account stated and Payment of the Balance. Sutton v. Page, 3 C. B. 204; Callander v. Howard, 10 C. B. 290. See Smith v. Page, 15 M. & W. 683; Livingstone v. Whiting, 15 Q. B. 722. 5. Plea to an Action for Goods sold, of Payment of Part of the Price to the Plaintiff, and of the Residue to Trustees by Agreement with the Plaintiff to abide the Adjustment of a Dispute as to the Goods being equal to the Contract. Page v. Meek, 3 B. & S. 259.] PAYMENT INTO COURT. Obs. — By the C. L. P. Act, 1852, s. 70, " It shall be lawful for the defendant in all actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant), and, by leave of the court or a judge, upon such terms as they or he may think fit, for one or more of several de- fendants to pay into court a sum of money by way of compensation or amends (b) : provided that nothing herein contained shall be taken to affect the provisions of a certain act of parliament passed in the session of parlia- ment holden in the sixth and seventh years of the reign of her present majesty, intituled ' An act to amend the law respecting defamatory words and libel.'" By s. 72, "No rule or judge's order to pay money into court shall be necessary, except in the case of one or more of several defendants; but the money shall be paid to the proper officer of each court, who shall give a receipt for the amount in the margin of the plea; and the said sum shall be paid out to the plaintiff or to his attorney, upon a written authority from the plaintiff, on de- mand." The effect of these sections is, that no rule or order is necessary, except where one or more of several defendants pay into court. Section 71 gives the form of plea to be followed as near as may be, mutatis mu- tandis. By s. 73, " The plaintiff, after the delivery of a plea of payment of money into court, shall be at liberty to reply to the same by accepting the sum so paid into court in full satisfaction and discharge of the cause of action in respect of which it has been paid in, and he shall be at liberty in that case to tax his costs of suit, and, in case of non-payment thereof within forty-eight hours, to sign judgment for his costs of suit so taxed, or the plaintiff may reply that the sum paid into court is not enough to satisfy the claim of the plaintiff in re- spect of the matter to which the plea is pleaded ; and, in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit." By R. H. T. 1853, 11, " No affidavit shall be necessary to verify the plaintiff's signature to the written authority to his attorney to take money out of court, unless specially required by the master." R. 12, "When money is paid into court in respect of any particular sum or cause of action in the declaration, and the plaintiff accepts the same in satis- faction, the plaintiff, when the costs of the cause are taxed (a), shall be entitled (?) This plea is given by 4 Anne, c. 16, s. 12. See ante, "Bonds," 351. 448 PLEAS IX CONTRACT. PAYMENT INTO COURT. ■ in respect of that part of his claim so satisfied, up to the time the money is so paid in and taken out, whatever may be the re- sult of any issue or issues in respect of other causes of action, and if the de- fendant succeeds in defeating the residue of the claim, he will be entitled to th. use in respect of such defence, commencing at instructions for plea . but not before." 18. •• Where money is paid into court in several actions, which are consoli- dated, and the plaintiff, without taxing costs, proceeds to trial on one and fails, he shall be entitled to costs on the others up to the time of paying ey into court." '..\ ('. L. P. Act, I--':", s. 25. " In any action brought upon a bond which has a condition in defeasance to make void the same upon payment of a lesser sum at a day or place certain, with a penalty, and in any action for detaining the goods i)t the plaintiff, it shall be lawful fur the defendant, by leave of a court or a judge, and upon such terms as they Or he shall think fit, to pay into court a sum of money to answer the claim of the plaintiff in respect of such bond in the former case, and in the latter case to the value of the goods al- leged to lie detained, and such payment into court shall be made and pleaded in like manner, and according to the provisions of the common law proced- ure act. 1852; and the like proceedings may be hail and taken there- upon, as to costs and otherwise." See Bishop of London r. McNeill, 9 Ex. ^490. Care must be taken to pay into court a sum sufficient to satisfy the full claim to damages to the tinu th plea is pleaded. If interest be claimable, it must be calculated to the time of payment, and not merely to the time the writ was ied. Kidd v. Walker, 2 B. & Ad. 705; 1 Dowl. 331, S. C. [If the pay- ment is of too small an amount by only a few cents, though by mistake, the object and effect of it are defeated. Boyden v. Moore, 5 Mass. 365; Patnote V. Sanders. 41 Vt. 66.] If money be paid into court, but the defendant omit to plead the payment, the defendant is not entitled to costs. Adelaide '•. Booth, 1 Bing. X. C. G93; and if less be paid in than is admitted to be due by the plea, such payment would be bad. Tattersall r. Parkinson, 16 M. & W. 752; Grimsley v. Parker. 3 Ex. 610; An amendment by adding a plea of payment into court, or by increasing the sum before paid in on a plea of payment into court, would in general be allowed on terms. If money be offered by the defendant and refused by the plaintiff, on a summons be- fore declaration (Cumming r. Cohmibino, 6 D.iwl. 373; Parsons v. Pitcher, lb. -132), the defendant will not be entitled to the subsequent costs unless such money be afterwards paid into court on a plea. Gover v. Elkins. 3 M. & W. 210; S. C. G Dowl. 335; 4 Bin-. N. C. 30G, S. C. But if plaintiff refuse to accept the money on summons, and afterwards lake it out of court, it is con- sidered primafacie as vexatious conduct on his part, and therefore disen- titling him to the costs after the offer, unless explained; see "Willis v. Darke, Tyr. & (Jr. 503; Jones v. Owen, 1 Dowl. 565; 2 Cr. & J. 479, S. C: Hale V. Baker, 2 Dowl. 1 25; Kelly /•. Flint, 5 Dowl. 293 ; as by showing on affidavit that be could not sooner ascertain the amount of damages; Ackroyd v. Beed, 5 M. & W. 5 12; but the court will not interfere to give defendant his costs unless lie have made a previous application to the master. Roe v. Cobham, 6 Dowl. 628. On the other hand, an abandoned summons of the defendant offering more than he afterwards pays into court, may lie used as evidence against him at the trial. Dommett v. Young, 1 Car. & M. 465. Where money is paid into court, and the plaintiff accepts it in satisfaction of his claim, he '• recovers *' the amount within the meaning of 13 & 14 Vict. c. 61, s. 11 . which deprives a plaintiff of costs where he ■• shall recover a sum nol ing £20." Parr r. Lillicrap, 32 L. J. Ex. 150; [1 II. & C. 615;] overruling Chambers v. Wiles, 24 E. J. Q. B. 267. \N hen- tlere are several counts for several causes of action, or several breaches are assigned in an action on a covenant, the defendant may plead payment into court of one entire sum. in satisfaction of all the counts or breaches. Marshall v. Whiteside, l M. & W. 188; Mitchell v. Townelev, 7 Ad. & E. 164. Effect of \ as an admission. — 1. When pleaded loan indebitatus count.'] h ad- mits that defendant was indebted on the causes of action as described in those counts to the extent of the money paid in on them; Kingham v. Robins, 5 M. PLEAS IN CONTRACT. PAYMENT INTO COURT. 4 4 i » Ous. & W. 94 ; [Jones v. Hoar, 5 Pick, 285;] but no further, though the plaintiff 1 prove a Bingle contracl exceeding in value the amount paid into courl ; Stea- venson v. Corporation of Berwick, 1 Q. 15. 154 ; Goff v. Harris, 5 M. & G. 573; it admits, also, the validity of every species of claim mentioned in the particulars act ipanying the counts on which il is paid in, and thai some damages are due on each ; Edgar u. Watson, I Cr. & IM. 494; [but Bee Hub- bard v. Enous, 7 Cush. 556; Bacon v. Charlton, 7 Cush. 582,583;] and it ad- mits the plaintiff's character in which be sues; Lipscombe v. I Inline--, 2 ( 'amp. ■l 1 1 ; and his Bole right to the money sued for ; Walker v. Rawson, l Mnol. & Rob. 250 : S. ('. 5 ('. & P. 186 ; and thai the defendants are properly sued jointly : Ravenscroft v. Wise, l ('v., M. & It. 203 ; it' the plea be pleaded Lv all the defendants ; Stapleton o. Noel, 6 M. & W. 9 ; S. C. 8 Dowl. 196 ; aliter, if pleaded by only one defendant; Elliot v. Morgan, 7 C. & P. 334; it also admits that the action is nol broughl too sunn ; Harrison v.- Douglas, 3 Ail. & E. ;!'.Mj ; hut, all these admissions only operate to the extent of the amount paid into court. Archer c. English, 1 M. & G. 873 ; [Hubbard v. Knous, 7 Cush. 55(1.] 2. When pleaded to a special count."] — It admits the contract as laid ; McCance v. London & North Western Railway Co. 31 L. J. Ex. 65; [3 H. & C. 343 ;] Israel v. Benjamin. 3 Camp. 46 ; [Huntington »'. American Bank, 6 Pick. 340 ; Hubbard v. Knous, 7 Cush. 557, 558 :] and that nominal dam- ages are due on it ; Archer v. English, 1 M. & G. 873 ; and this the defend- ant cannot give evidence to controvert : Lloyd v. Walkey, 9 C. & P. 771 ; still less will be be allowed to give evidence of facts under this plea even in mitigation of damages, which, it' pleaded before, would have been a bar to the action ; Speck v. Phillips, 5 M. & W. 279 ; S. C. 7 Dowl. 470 ; and it admits all the material, but not the immaterial, averments in the declaration, as sums of money laid under a videlicet. Cooper v. Blick, 2 Q. B. 915. In use and occupation it admits plaintiff's title and Ins sole title. Dolby v. lies, 11 Ad. & E. 335 ; and see Attwood v. Taylor, 1 M. & G. 280. If paid in on a promissory note payable by instalments, it only admits the amount of instal- ments as due which the money paid in will cover, and does not preclude the statute of limitations beim: pleaded to the others. Reid v. Dickons, 5 B. & Ad. 499 ; Jourdain v. Johnson, 2 Cr., M. & R. 566. Where some money is due on the indebitatus counts, and the declaration con- tains also special counts, as to which the defendant wishes to make no admis- sions, he may secure that object by expressly restricting the plea of payment into court to the former counts. Charles v. Branker, 12 M. & W. 743 ; S. C. 1 D. & L. 989; Bonne v. Thompson, 4 Q. B. 543. Where the plaintiff lias two counts in his declaration, upon either of which he can recover his de- mand, as a count for goods sold, and upon an account stated as to the price, it suffices to pay monev into court upon one only of such counts. Early v. Bowman, 1 B/& Ad. 89; Stafford v. Clarke, 2 Bing. 377 ; 1 C. & P. 703, S. C. ; Evereth v. Bell, 7 Taunt. 450. By payment into court the defendant loses any right he might have had to move in arrest of judgment. Wright v. Goddard, S Ad. & E. 144. When the declaration comprises several causes of action, and money is paid into court generally, the court will not in general order particulars stating to what items of the plaintiff's claim the money is paid into court. The Thames Iron Works & Ship Building Co. v. The Royal Mail Steam Packet Co. 30 L. J. C. P. 265; [10 C. B. N. S. 375 ;] Baxendale v. Great Western Rail- way Co. 30 L. J. Ex. 63; [6 H. & N. 94.] As to payment into court in actions on tort, see post, " Torts." For the prac- tice and mode of proceeding, see Chit. Circt. Pr. 1. Plea of Payment into Court, (r) The defendant, by his attorney [or " in person," ^c], [if pleaded to (r) This form is given by the C. L. P. As also the damages to the extent of the Act, 1852, s. 71, and no order is necessary money paid in; Robinson v. Harman, 1 Ex. except in the case of one or more of several 850 ; Story v. Finnis, 6 Ex. 123 ; and it has defendants, s. 72. It admits the cause of the same effect in actions of tort. Schreger action as if judgment had gone by default, v. Carden, 11 C. B. 851; Perren v. Mon vol. ii. 29 450 PLEAS IX CONTRACT. PAYMENT INTO COURT. , v u M t , ( £ , parcel of the money claimed*'] brings into court the rnim of i." , and says that the said sum is enough to satisfy the claim of the plaintiff in respect of the matter herein pleaded to. 2. /,'. <. Fairclough, 6 Bing. X. C. 270. And even a plea that the shares had been forfeited before the making the calls in question, would, it seems, be bad, as amounting to an argumentative traverse of the defendant's being a shareholder; lb. ; such forfeiture is not complete until confirmed at a general meeting of the company, held according to the act of parliament ; see 8 & 9 Vict. c. 16, s. 31 ; Birmingham, Bristol & Thames Junction Ry. Co. v. Locke, 1 Q. B. 256, 271, 282; therefore, until confirmed, it is no defence to an action for calls. It is no defence that between the day when the call was made and that upon 'which it was payable, the defendant transferred his shares, although such transfer was duly entered and indorsed according to the provisions of the act of parliament ; as in all cases the per- son holding the share at the time when the call is made is liable. Aylesbury Ry. Co. v. Mount, 7 M. & G. 898. And under the general issue it maybe shown that the defendant is not a shareholder. Shropshire Union Ry. Co. v. Anderson, 3 Ex. 401; 18 L.J. Ex. 232. As to who are shareholders, see ante 226, note (r). In an action against a shareholder for calls, in the general form given by s. 26 of 8 & 9 Vict. c. 16, twenty years is the period of limitation within which the action may be brought. Cork & Bandon Ry. Co. v. Goode, 13 C. B. 826 ; 22 L. J. C. P. 198. But see Welland Ry. Co. v. Blake, 30 L. J. Ex. 161, as to calls under foreign or colonial statutes. [As to personal liability of promoters of non-existing company, Kelner v. Baxter, L. R. 2 C. P. 1 74. Plea that claim is not bona fide will not be allowed. Hooper v. Bristol &c. Co. 35 L. J. C. P. 299. Plea that land had not been injuriously affected. Beck- ett v. The Midland Ry. Co. L. R. 1 C. P. 241 ; L. R. 3 C P. 82. Misrepre- sentation in prospectus of public company. Kennedy v. The Panama &c. Co. L. R. 2 Q. B. 580.] 1. G-eneral Issue to an Action for Calls. Never indebted, ante, 284. 2. Denial that the Defendant is the Solder of the Shares. That he was not at the time of the making of the said call the holder (y) of the said shares in the said company, or of any of them, as alleged. 3. Denial that the Company is registered. Agricultural Cattle Insurance Co. v. Fitzgerald, 16 Q. B. 432; 20 L.J. Q. B. 244. (z) (>/) Or " proprietor," according to the term Advance Co. v. Smith, 3 H. & N. 543 ; 27 L. used in the declaration. See The Belfast & J. Ex. 479. Traverse that the company is County Down Ry. Co. v. Strange, 1 Ex. incorporated. Liverpool Borough Bank v. 738. As to the evidence, see The Chelten- Mellor, 3 H. & N. 551 ; 28 L. J. Ex. 78. ham & Great Western Union Ry. Co. v. Pleas relating to the appointment of liqui- Daniel, 2 Q. B. 281. dators. Anglo-Californian Gold Mining Co. (z) See other like forms, London Monetary v. Lewis, 30 L. J. Ex. 50; [6 H. & N. 174.] PLEAS IN CONTRACT. PUIS DARREIN CONTINUANCE. 458 4. Plea that the Calls made were in Excess of the Company's Powers. The Welland Ry. Co. v. Berrie, 6 H. & N. 416; 30 L. J. Ex. 163. 5. Plea that the Contract was not under Seal. London Dock Co. v. Sinnott, 8 El. & Bl. 347. (a) [5a. Plea that Defendant was induced to become Holder of Shares through the Fraud of the Plaintiffs, never had any Benefit, $>c. and repudiated and disclaimed the Shares, and gave Notice thereof. Bwlch y Plwm, &c. Co. v. Baynes, L. R. 2 Ex. 324.] 6. Plea that Plaintiff was a Director and interested in the Contract. Stears v. South Essex Gas Co. 9 C. B. N. S. 180 ; 30 L. J. C. P. 49. (b) PUIS DARREIN CONTINUANCE. Obs. — See ante, 318, form 2, note (&). By C. LP. Act, 1852, s. 68, " Any defence arising after the commencement of any action shall be pleaded according to the fact, without any formal com- mencement or conclusion ; and any plea which does not state whether the defence therein set up arose before or after action, shall be deemed to be a plea ot matter arising before action." By s. 69, "In cases in which a plea puis darrien continuance has heretofore been pleadable in banc or at nisi prius, the same defence may be pleaded with an allegation that the matter arose after the last pleading and such plea may, when necessary, be pleaded at nisi prius, between the tenth of Au- gust and twenty-fourth of October ; but no such plea shall be allowed unless accompanied by an affidavit that the matter thereof arose within eio-bt days next before the pleading of such plea, or unless the court or a iud'e shall otherwise order." J ° And by R. T. T. 1853 22 & 23, " A plea containing a defence arising after the commencement of the action maybe pleaded together with pleas of de- fences arising before the commencement of the action, provided that the plaintiff may confess such plea, and thereupon shall be entitled to the costs ot the cause up to the time of the pleading such first mentioned plea. When a plea is pleaded with an allegation that the matter of defence arose after the last pleading, the plaintiff shall be at liberty to confess such plea, and shall be entitled to the costs of the cause up to the time of pleading such plea ■ provided that this and the preceding rule shall not apply to the'case of such plea pleaded by one or more only out of several defendants ' ' Any defence which arises after plea and before verdict, and within eio-ht days after such defence arises (unless further time be allowed by the court or" a judge), may be pleaded as arising puis darrien continuance. Todd v. Emly, (a) Other like pleas, and (hat the contracts Mavor &c. of Brecon 3 H & N 57^ • 97 t Knifr 10'C' l°N% ?#* I? 7 " F% V - I ^ I 95 " • Wh6re a11 the capi'tfl' I'as'not £1, : 1 ' ^ ^ & - ^ 75; Royal Bnt " becu subscribed, see London & Continental ish Bank v. Turquand, 6 El. & Bl. 327 ; 24 Assurance Co. v. Red-rave 4 C B N S four\ Inesf U L jVptfo "K ^ ?* [C ° mpany f™ 5 ^ ^^1 K% p'ni ■ v \ . 24 Maine, 584 : Culver Partn. 5 606, and notes and c Walker v. McCulloch, 4 Greenl. 421 ; Shaw v. Pratt, 22 Pick. 308 : Pond o. Wil- liams, 1 Gray, 630, 630 ; Wiggin v. Tudor. 23 Pick. 444 : Harrison o. I 2 John. 449; Rowley v. Stoddard. 7 John. 209 : Putnam v. Lew'.-. - John. 304 : Johnson v. Weed, 9 John. 310 : Frink v. Green, 5 Barb. 450 : Mason . Jewett, 2 Dana. 107:] unless it appear by the deed that it was not intern so to operate; North v. Wakefield, 13 Q. B. 7>36 ; but the court will set suxh a release aside if the reiver was only a trustee, and had no real ini lease. Rawstorne v. Gandell, 15 M. & W . 3 ■>. [A release of one j debtor, which discharges all, must be a technical release under seal. Shaw v. Pratt. 22 Pick. 308 ; Harrison v. Close. 2 John. 449 ; 1 Chitty Contr. (11th Am. ed.) 346, note (.<). But a mere di- _ by operation of law, of one of several debtors, without the consent of tin- ere liter, will not ( away his remedy against the others. Ward v Johnson, 13 Mass. 152 ; Robertson v. Smith, 1* John. 45y : Hosack v. Rog -s, - P ig 22 ; Town- d v. Riddle. 2 X. H. 449.] A pauper may release to the prejudice of his attorney. Jones v. Bonner, 2 Ex. 230. As to the distinction between a release to, and a covenant not to sue one of several debtors, see Price v. Barker, 7 £1. \: Bl. 76 '-7 7 7 ; Dean v. Xev. 8 T. R. 168 ; Twopenny v. Young, 3 B. & C. 212 ; Willis v. De Castro. 4 C. B. N. S. 216. The court will only set such a r< side when there is fraud between the releasor and defendant; fraud upon rele dd be replied; Wild v. Williams, 6 M. & W. 490 : and see Crook .-. Stephen, 5 Ring. X. C. 688 ; Phillips v. Claggett, 11 M. & W. 84 : and they will not hue a party releasing has any interest at all to release, though the effect of his release may be to bar innocent co-plaintiffs. Raws Gandell, ubi sup. \l< ' ase defeating attorney's lien on a judgment Barker v. St. Quintin, 12 M. & W. 441 : Perry v. Allen. Ex. M. T. 1845. A release from any plaintiff on the record is a bar. even though the action is brought for the it of others, wbo have no mode of enforcing their claim except by suing in plain- tiff's name. Per Parke B. Wilkinson . Lind •. 7 M. & W. 87; and see, also, Gibson v. Winter, 5 B. & Ad. 96. See Chit. Contr. in voc. A covenant not to sue mav amount to a release : 2 Wms. Saund. 4 799 : Fori] v. Beech. 11 Q. B. 852 ; [2 Chitty Contr. (11th Am. ed.) 1146. note (e 1 ) and cases cited :] but it cannot be pleaded in bar if it is only not to sue for a lim- (g) See ante, 418, note (d). PLEAS IX CONTRACT. RELEASE. : Thin . Barron. 3 M. & W. 21" j 2 Wms. Saund. 150 a; h Am. ed.) 1147, and note (//) and cases cited;] unless it it maj - pleaded in case, «sn action be brought w j V d, 8 i . B. I shaw v. Bush, 11 C. B ... -■ ]■.. - \ L.J. Q B. 25 ; Walker v. Nev- | | I.M. Ex. 73 : [2 Chitty Contr. (11th Am. ed.) 1147, ited : Winans v. II isl »n, 6 Wend 471 ; Pearl r. : : White o. Dingley, 4 M .--. 433.] 1. Pit ■ (/<) a accrued, and before this suit, the plaintiff, by adant therefrom. n a< r l; to the further Maintenance of the Action. T< • Wanless, L. R. 2 Ex. 275.] _. Replication to Plea of Release, (i) That the alleged release is not the plaintiff's deed. 3. .7 n thai the Release teas obtained by Fraud. (Jc) That the -aid release was procured by the fraud of the defendant 4. Plea that the Manager of a Banking Company released the Debt, which the C // (the PI rwards ratified. ! v. Tuckett. 3 M. & G. 783. 5. Plea of the Release of a Co-contractor. (7) {Thompson v. Lack. 3 C B. 5 tO ; North v. Wakefield. 13 Q. B. 536 ; Price (A) C. L. P - ^ch. B, 42. The hall, ami Twopenny v. Young, supra, Obs. ; • part only of the [ante, 455.] Release by giving time on a if the whole claim he not admitted, guaranty. Howell v. Jones, 1 Or.. M. & R. the r.lea must then be confined 97; and see Combe v. "Wolf, 8 Binjr. 156. If this plea be By releasing the principal. Barr v. Cooper, i count on a bill, add, "and 8 M. & W". 751; ante, "Guaranty." Re- [or '-indorsement," lease by appointing a joint debtor executor. lid bill. - - Chethara v. Ward, 1 B. & P. 630, and see _ ". I. A release by there form of plea to a bond: [2 Chitty - , Contr. (11th Am. ed.) 1156, note (m); 1 .re> as a Chitty PL 60, and cases in note (c).] Release out. Wilson v. Braddyll, of a note by giving time to one for whose accommodation defendant had made it. B. 50. This Smith v. Winter, 4 M. & W. 454. Rel execn- by withdrawing an execution which plaintiff • had against the principal debtor. Mayhew -. the proper repli- v. Crickett. 2 Swanst. 185. Band consent ised in on the part of the defendant, that the re! Part B. of the other joint debtor should not operate M. £ V North t( him, cannot d to are! - ; a covenant not tu I ts Mash, 9 Bing. 431 ; but in such ich a consent under seal may; Cowper v. E. 216. Smith, 4 M. & W. 519. R< one joint . Jubb v. debtor bv proceeding to judgment against the other. King v. Hoare, 13 M. & W. 494; B, 51. | Manle J. in Bell v. Bankes, 3 .M. & G. 267 ; • and BayleyJ. in Lechmere '-.Fletcher, 1 Cr. & I.itt. ii. 634; Story J. in United States v. Cush- ■i man, •> Snmner, 437-441 ; Trafton v. United " Smart, S - . 646 ; Pierce v. Kearney, 5 ;] but a covenant Hill, 86 ; Ward' '-.Johnson, 13 Mas-. 151, 152; not t Dean v. New- Robertson r. Smith, 18 John. 459 ; Moale v. PLEAS IN CONTRACT. RESCINDED CONTRACT. 457 v. Barker, 4 El. & Bl. 760 ;] Willis v. De Castro, 4 C. B. X. S. 216; 27 L. J C. P. 243; [reserving remedi. -. ante, 399, note (s 1 ).] 6. Replication to a Plea of Release, setting out the Releasing Deed in Hcec Verba, by which it appeared that the Release was to be void in Certain Circumstances, and averring those Circumstances. Hyde v. Watts, 12 M. & W. 25 1. (m) REPLEVIN BOND, (n) 1. General Issue, (o) Non est factum. 2. Plea to a Declaration on a Replevin Bond, that it ivas taken by a Person not duly deputed by the Sheriff for the Purpose, (p) That the said supposed bond was taken from the defendants in the name of the sheriff of the county of , by one M. G., under pretence that the said M. G. was then the deputy of the said sheriff of the said county, but that at the time of the taking thereof the said sheriff had not deputed or appointed the said M. G. as his deputy, nor had the said M. G. any authority in the sheriff's name to make replevies and deliverance of distresses. 3. Plea that the Suit abated by the Death of the Plaintiff in Replevin. Morris v. Matthews, 2 Q. B. 295. RESCINDED CONTRACT. Obs. — At common law, an agreement (whether reduced to writing or not is imma- terial) not under seal may before breach be wholly waived" or rescinded by the mutual consent of the parti,-, even by parol, and without any accord or satisfaction. Goss v. Lord Nu-ent, 5 B. & Ad. 58 : Rippinghall v. Llovd, 5 B & Ad. 742; Taylor v. Hilary, 1 Cr., M. & R. 741; Franklin r. .Miller, 4 Ad. & E. 599-606; Fitt v. Cassanet, 1 M. & G. 898. See Lewi. v. Clifton 14 C. B. 245; 23 L. J. C. P. 68; [1 Chittv Contr. (11th Am. ed.) 154 155~ and cases cited in note (rf); 2 lb. 1147.] But not after breach. Edwards v Chapman, 1 M. & W. 231 ; and see Cooper v. Phillips, 1 Cr., M. & R. 649. Hollins i, 11 Gill & J. 11 ; Ward v. Mutter, 2 (») Sec form, &c. Faulkner v. Johnson, 11 Rob. (Va.) 559, 560; 2 Clntty Contr. (11th M. & W. 581. Am. ed.) 1173, and note (e) ; Ilolman v. (o) The bail may also plead md tiel record Langtree, 40 Ind. 349 389.] if the declaration show a jm _ in the (m) Neville v. Boyle, 11 M. & W. 26. replevin suit. If the bond be Conditioned to Replication, that the release was altered, prosecute without delay, and no iud<»ment Fazakerly v Knight 6 El. & Bl. 795; 20 L. against the principal is shown, the/ may -I. y. JS. 30. bee lorin of replications on plead a prosecution of the replevin suit with- equitable grounds, De Pothonierw. De Mat- out delay. See form, &c. Harrison r. Wardle tos, 2, L . Q B. 260 • [El Bl. & El 461 ;] 5 B. & Ad. 148. As to ppearance at i:- va ' .'■• | L, l i .; vai '' 1 ,V 30 L /- Ex. 193; [6 H. & the county court, see Rider v. Edwards, 3 JN. 33i ;] Ihe .Thames Iron Works & Ship M. & G. 202 Building Co. v. The Royal Mail Steam (/») See 1 Ph. & M. c. 12 s. 3 ■ Griffiths v Packet Co. 31 L. J. C. P. 169; [13 C. B. N. Stevens, 1 Chit. R. 196 ' ' S. 358 ;] ante, " Equitable Pleas." PLEAS IN CONTRACT. RESCINDED CONTRACT. scind musl 1"- executed in accord and satisfaction. . R] -. I M. & W. 153; Bayley v. Bonan, 3 Bing. X. C. M M. & W. 21 ; | . . Fosfe r r. Dawber, 6 Ex . Nich Is, 19 Pick. 275; 2 Chitty Contr. (llth Am. ed.) A mere agreement for an accord, not executed, will lijit oi action. Lynn v. Bruce, 2 II. Bl. 317; l; • .M. & \Y. 323; [ante, 288.] A partial ; i sideration does not entitle the other party to rescind a Franklin v. Miller, 4 Ad. & E. 599; Jonassohn v. Young, Keenan v. Brown, 21 Vt. 86;] but an unqualified refusal by :tor to perform his part does; . when the refusal is quali- '.: .1 Jur. ■ of a defendanl to rescind a contract for the delivery of goods, md of the plaintiff refusing to pay for the firsl pari delivery of them, Ivey v. Xoung, l M. & R. ">45. See Bartholomew v. Markwick, 33 L. .1. C. P. 1 15 : [15 ( • B. X. S. 711.] And as to rescinding contract founded S : v. Littledale, 27 L. J. Q. B. 201 ; [8 El. & Bl. 815; 2 t itr. (llth Am. ed.) 1034.] If one party refuses absolutely to per- mtract, the other may rescind the contract. Hbchster v. De la 2 El. & 111. 678; Avery v. Bowden, 6 EL & B1.953; [Barwick v. Buha, 2 ( B. X. S. 563; Eteid v. Hoskins, 6 El. & Bl. 961; Xenos v. Danube Co. I.. .1. C. P. ; [11 C. B. X. S. 152;] and notes to Cutter o. Powell, 1 Sin. L. C 1 : [Sargent J. in Clark v. Manchester, .")l X. II. 594, 596; BellJ. in Webb v. Stone, 24 N. II. 288; Allen v. Webb, 24 N. H. 278; W ■ ■ .- . Robie, 12 X. 11. 316, and cases cited; Danforth v. Dewey, 3 X. EL 79. If the act of one party be such as necessarily to prevent the other party from completing his part of the contract according to the terms of it. the latter may treat the contract as rescinded. Dubois v. Delaware & Hud- i Canal Co. 4 Wend. 285; Hall v. Rupley, 10 Barr, 231; Moulion v. I ... 9 Met. -"'77; Derby r. Johnson, 21 \'t. 17; Hoagland v. Moore, 2 Blackf. 167; Webster v. Enfield, 5 Gilman, 298; Blanche v. Colburn, 8 Bing. 11; Burton v. Pinkerton, L. R. 2 Ex. 340; Revbold v. Voorhees, 30 116; 2 Chitty Contr. (llth Am. ed.) 828-830, and note (/); Bas- Sanborn, :i Cush. 58,65. When a contract maybe rescinded for fraud, see 1089, and note (m) : or because there is a complete difference in buI letween the thing bargained for and that obtained under the con- tr- Kennedy v. Panama &c. Mail Co. L. R. 2 Q. B. 580; Azemar v. (a . i.. I:. 2 C. 1'. 431, 077; Pooley v. Brown, 11 C. B. X. S. 566; Gard- 12 Allen. 39; 9 Allen, 192; Gurney v. Wormersley, 4 El. & Bl. Sales ( I -t Am. ed.), § 600 et seq. : or' lor breach of warranty, see 1 I h Am. ed.) 648, and note (7 1 ) ; Day v. Tool. 52 N. Y. 416, 419; i v. Sanson, 35 Iowa. 284, 286, 287; Scranton r. Tilly, 16 Kuntzman v. Weaver, 20 Penn. St. 422; Matteson v. Holt, 45 penter v. Minturn, 65 Barb. 293; Benj. Sales (1st Am. ed.), md note (a); Don- v. Fisher, 1 Cush. 271, -_ ; 7l: Foster J. in Morse ■ B 18 Mass. 209; and in Boardman v. Spooner, 13 Allen, 361; or t-performance of condition precedent, see 2 Chitty Contr. (llth Am. ed.) 1 ■(/■)■ Frosl ''■ Jackson, 7 Cowen, 24.] of an agreemenl required to be in writing under the statute of . a parol agreement, even before breach that it shall be abandoned iii void. Go p.Lord Nugent, supra ; Earl of Falmouth v. Thomas, 1 Cr. >' ■': Harvej v. Grabham, 5 Ad. & E. 61. [See Noble v. Ward, 4 H. & C. S.< ■ I., b. 1 Ex. 117: S.C. l' [b. 135; Moore v. Campbell, 10 Ex. 323, 332; Wallace, 254; Stead v. Dawber. 10 Ad. & E. 57; Dana ■• H I Vt. 616; Ogle v. Vane, 7 B. & S. 855; L. 11. 2 Q. B. 275; 9 L. lb 3 (i. B. 272; Emmet v. Dewhurst, 3 Mac. & G. 5s: : L79, 111 et seq. The law is settled otherwise in bere it is held thai parol evidence may lie admitted to pn oral agreement, enlarging the time of performance of a simple varying its terms, or to show a waiver or discharge, although the ' '"tit 1. required by the statute of frauds to be in writing. Hall, 9 (i.d,. 31; Cummings v. Arnold, 3 Met. 486. The decisions in Maine and Maryland have a bearing in the same direction. Richardson PLEAS IN CONTRACT. SALE OF GOODS. |/,'.i Obs. v. Cooper, 25 Maine, 450; Blood v. Bardy, 15 Maine, 61; Franklin v Lona 7 (iil! &J. 407; Watkins /•. Hodges, 6 Han-. & J. ::■ \\ here a contrad has been rescinded 3 M - & W - 24 ° : s '»'"th (.!/) hee 29 Car. 2, c. 7, s. 1, and cases v. Bean, 15 N. H. 577: Myers v Meinrath hereon; [Benj. Sales (1st Am. ed.), §§ 553- 101 Mass. 3G8; Hall L'CoSan 107 Mass.' 558 and notes; 1 Chitty Contr. (11th Am. 259; Cranson v. Goss, 107 Mass. 441 ; Hor- ed ) 588 and note (fi), 590, and note , , ton v. Buffington, 105 Mass. 399; King v. 9 and note (ji), 592, and note (o) ; 2 lb. Green, 6 Allen, 139; Bradley v. Bea,° 14 1017 etseq. and notes; Rawlins v. Over- Allen, 20; Stebbins v. Peck 8 Gray 553- gets of Derby, 15 L. J. C. P 70 A sale on Boutelle „! Melendv, 19 N H. ?96, Sumner ounciav, not in the course of the vendor's v. Jones 24 Vt °17 1 ordinary calling, is good. lb. ; Scarfe v. Mor- 4.;-J PLEAS IN CONTRACT. SET-OFF. SEAMAN. Obs. — See ante, 243, Obs. 1. PUa to an Action by a Seaman for refusing to allow him to serve, that the Agra ment was ottered into under 5 $ 6 W. 4, c. 19, and thai Plaintiff was guilty of Mutiny. Renno v. Bennett, 3 Q. B. 768. 2. Plea to a Special Count for Wages, that they were forfeited by Plaintiff's Desertion of the Ship. M'Donald v. Jopling, 4 M. & W. 285. SET-OFF. Obs. — Bv 2 Geo. 2, c. 22, s. 13, " where there are mutual debts between the plain- tiff and defendant, or if cither party sue or be sued as executor or adminis- trator, whore tlicrc are mutual debts between the testator or intestate and either party, one debt may be set against the other." [But a set-off is not a defence. Curran v. Curran, 40 Ind. 473.] Bv 8 Geo. 2, c. 24, s. 5. " mutual debts maybe setoff, notwithstanding that such debts are of a different nature, unless in cases where either of the said debts shall accrue by reason of a penal/// contained in any bond or specialty, where the debl intended to be set off shall be pleaded in bar, in which plea shall be shown how much is truly and justly due on either side; and in case the plaintiff shall recover in any such action, judgment shall be entered for no more than shall appear to be truly and justly due to the plaintiff after one debl being set against the other as aforesaid." By the bankrupt law consolidation act, 1849 (12 & 13 Vict. c. 106), s. 171, "that where there has been mutual credit given by the bankrupt and any ii her person, or where there are mutual debts between the bankrupt and any other person, the court shall state the account between them, and one debt or demand may be set against another, notwithstanding any prior act of bankruptcy committed by such bankrupt before the credit given to or the debt contracted by him; and what shall appear due on either side on the balance of such account, and no more, shall be claimed or paid on either side respectively; and every debt or demand hereby made provable against the estate of the bankrupt may also be set-off in manner aforesaid against such estate, provided that the person claiming the benefit of such set-off, had not, when such credit was given, notice of an act of bankruptcy by such bank- rupt committed." I'.;, the C. L. L'. Act, 1860 (23 & 24 Vict. c. 126), s. 19, the joinder of too many plaintiffs shall not be fatal; and by s. 20, "upon the trial of such cause a defendant who has therein pleaded, a set-off may obtain the benefit of his set- off by proving either that all the parties named as plaintiffs are indebted to him, notwithstanding that one or more of such plaintiffs was or were improp- erly joined, or on proving that the plaintiff or plaintiffs who establish their right to maintain the cause is or are indebted to him." By EL 8, T. T. L853, set-off musl be specially pleaded; Graham v. Partridge, 1 M. & \V. 895; and such plea Bhall be taken distributively. C. L. P. Act, 1852, s. 75. Particulars of the set-off must be delivered with the plea. R. 19, Hi!. T. 1858. These particulars should specify items, dates, and amounts, and Bhould also mention what the balance is; though such particulars need no i mention the items mi the credit side. Chit. Arch. Pr. They should be such a mislead a reasonable man as by confusing a claim of salary with one u,r commission. Law v. Thompson, 15 M. & W. 545. See Prichard v. Nelson, 16 M. & \V. 772. A set-off can only be pleaded in respect of mutual debts ; Isbergv. Bowden, 22 L. J. Ex. 322; [8 Ex. 852; 2 Chitty Contr. (11th Am. ed.) 1268, and note (<7 X ),] and does not apply to a claim PLEAS IN CON TRACT. SET-OFF. 463 Dbs. founded in damages. Morley v. Inglis, 4 Bing. X. C. 58; Roll v. Carey 8 C. B. 887; Castelli v. Boddington, 22 L. J. Q. B 5; [l El. & Bl. 66.] Thus a liability on a. guaranty, Morley v. [nglis, supra, even though it be under seal, Williams v. Flight, 2 Dowl. N. S. 11, cannot; be set, off. So, it cannol be pleaded to an action on a bond conditioned to indemnify generally: Att- wool v. Attwool, 2 El. k Bl. 23; 22 L. J. Q. J!. 287; nor to an action for detention oi a ship; Seeger v. Duthie, 29 L. J. C. P. 258; 30 L. J. C. P. 65; nor to an action for unliquidated losses on a policy of insurance ; Thompson v. Redman, 11 M. & W. 487; Castelli v. Boddington, supra; nor to a special count for not indemnifying an accommodation acceptor; Hardcastle v. Neth- erwood, 5 B. & Aid. 93; except as to so much of the claim as is in respect of the payment of the amount of the bill. Crampton V. Walker, 30 L. J. Q. B. But if money is actually paid under a guaranty, it mar be set off. Hutchinson v. Sidney, 10 Ex. 438. When the set-off accrues on a judgment ; Turner r. Pell, 2 Ex. 793 ; Amor v. Cuthbert, 3 M. & G. 1; see Simpson v. Lamb, 26 L. J. Q. B. 121 ; [17 C. B. 603 ; 2 Chitty Contr. (11th Am. ed.) L273, and note (7/ 1 ) ;] or bond ; Dobson v. Lockhart, 5 T. R. 133 ; Lee v. Lister, 7 C. B. 1008 ; the sum really due on the penalty or otherwise must he shown Symons v. Knox, 3 T. R. 65 ; Grimwood v. Barritt, 6 T. R. 460. A joint- stock company may setoff calls ; .Moore v. Metropolitan Sewage Company, 3 Ex. 333 ; 18 L. J. Ex. 164 ; Milvain v. Mather. 5 Ex. 55; 19 L. J. Ex. 227- and under the 17th section of 21 & 22 Vict. c. 60, a debt due from the com- pany may be set off in an action for calls against a contributory. The Garnett &c. Company v. Sutton, 32 L. J. Q. B. 47. When a debtor has advanced moneys for necessaries to the deserted wife of the creditor in equity, he can set off such moneys against the creditor's legal demand. Jenner v. Morris, 30 L. J. Ch.361. A judgment recovered in the name of a trustee, which, if recovered in the name of the cestui que trust, would have been a aood -et-off inlaw against the plaintiffs demand, may be pleaded byway of equitable set- oft. Cochrane v. Green, 30 L. J. Q. B. 97 ; [9 C. B. N. S. 448.1 So, also, may money due under an equitable assignment. Elkin v. Baker, 31 L. J C i r 177 ;-?,™, 1 f ee ante ' " E( l uita We Pleas/' An attorney may set off his costs before bill delivered. Brown v. Tibbits, 31 L. J. C. P. 206 ; [11 C. B. 2v T . S. 855.] The debt must be due at the time of action brought. Richard v James, 2 Ex. 471 ; [Carpenter v. Butterfield, 3 John. Casl 1 15 ; Jefferson County -Bank v. Chapin, 19 John. 322; Stewart v. United States Insurance Co. 9 Watts, 126 ; Edwards v. Temple, 2 Hairing. 322 ; Carpreu- r. Carra- yan 4 How. (Miss.) 370 ; Hardy v. Corliss, 21 N..H. 356 ; Kelly v. Garrett, 1 Gilman, 649. Money paid by the defendant as a surety for the plaintiff a fier action brought, but on an obligation entered into before, cannot be set- t V n V' Coo P er > 3 Ala - 25 6; but see Clark v. Magruder, 2 Harr. & J. 77.] The debt must continue due down to the time of trial. Evton r Littledale, 4 Ex. 159 ; [2 Chitty Contr. (11th Am. ed.) 1276, 1277 ] The debts must be mutual, and in the same right. Thus, a joint debt due from the plaintiff and another cannot be set off against a debt due to the plaintiff solely. Arnold v. Bainbridge, 9 Ex. 153. [So, in an action by two or more partners, the defendant cannot set off a debt due to him from one of the firm even although the defendant, at the time the debt was contracted, did not know that that one was not dealing with him on his own account merely Gordon v. Ellis, 2 C. B. 821. See Fuller v. Wright, 18 Pick. 403 ; Banks v. Bike, Id Maine 268; Ross v. Knight, 4 N. H. 236 : Watson v. Hensell, 7 Watts, 344 ; Jones v. Gilreath, 6 Ired. 338; Vose v. Philbrook, 3 Story 33o. One of several defendants cannot set off a debt due to him alone from the plaintiff. 2 Chitty Contr. (11th Am. ed.) 1278, and note (»■).] But the plaintiff- s joint and several note payable to the defendant may be set off Owen v. Wilkinson, 5 C. B. N. S. 526. When defendant is entitled to set- off when plaintiffs improperly joined, see supra. To a declaration for money had and received by the defendant to the use of the plaintiff, as administrator, and on accounts stated between them the de- fendant cannot plead a set-off of money lent by him to the intestate. Rees v. Watts, 11 Ex. 410 ; Schofleld v. Corbett, 11 Q. B. 779. And an executor sued as such for a debt due from the testator in his lifetime, cannot set off a PLEAS IX CONTBACT. SET-OFF. for money had and received to defendant's use as executor, and money due on an account stated with him as executor since the death of the testa- tor. Mardall v. Thellusson, 6 El. & Bl. 976. In ■ ankruptcv, supra. Mutual credits to be within the bankruptcy laws ii : : h as by their nature terminate in debts. Rose v. Hart. 8 Taunt. \ see the notes thereto, 2 Sm. L. ('. .">th ed. 251. Mutual credit . to a claim for unliquidated damages. Bell v. Carey, 8 C. B. - - See Chitty Contr. in roc. But a claim on a policy of insurance is a lit. Beckwith v. Bullen, S El. & 151. 682; Lee v. Bullen, 8 El. & Bl. 1. Plea of Set-off. (z) 1 it the plaintiff at the commencement (a) of this suit was and still is (b) indebted to the defendant in an amount equal to the plaintiff's claim for [here tin ca\ ''. as in a declaration, (c) see forms, ante"], which amount the defendant is willing to set off against the plaintiff's claim. _. /' i that tit,' Debts sued for accrued jointly from Defendant and a Third /'■ rson, and Set-off against the Plaintiff of a Debt due from him to the Defendant and that Third Person jointly, (c) Stackwood v. Dunn, 3 Q. B. 822. (z) C. L. P. Act. 1852, sch. R, 41, particu- ; with this plea. AnU , If thei i rial counts in the di c- laration for unliquidated damages, take care that the plea oi Bel off be restricted in its commencement, so as not to apply to those counts. The plea need not be pleaded to any par ticular count or sum. Noel v. Davis, 4 M. & W. 138. But where there is no doubt as to the amount which the defendant will 1 o prove, it is betti r to plead the I to that sum only, as in that ease the lant will be entitled to a verdict on that issue, and therefore to the costs of that . Butcher, C. £ P. 725), whatever he th* event of the cause ; whereas, d to 1 he \\ bole declaration, the idant (though lie prove part of the set- oft') will only lie entitled to the costs of that '.sheu he is entitled to the general costs of t! : for i hr material part of the ; '. admitting, as it docs, some- thing to he dm' on count to which it is is whether the defendant's u claim on tin- record, taking into account all ilc- i as, i quals "i- not the whole claim of the plaintiff. Moore v. Ratlin, 7 : lick v. Tuck, 5 M. & \Y. '<■ Bail v, II,. 384; Roche v. Champagne, 1 Ex. 10; 10 L. J. Ex. 249. Where, however, the plea is pleaded to the whole declaration, and the defendant proves that part will in any case be allowed him in reduction of damages. Cousins v. Paddon, - I i; 547 ; Barnes v. I'. 7l'.-,. It should also be bome in mind that where there are several b te, a different pari of the declara- tion, the plaintiff will obtain a verdict for tic difference, if tic- proof under each plea do nut eon,, ii], to that to which it is pleaded, even though there be such an excess of proof on some of the pleas as to show that the plaintiff's claim is in reality discharged, for such excess cannot be taken to help the de- ficiency of the others. Green v. Marsh, 5 Dowl. 675 : Newhall o. Holt, 6 M. & W. 662. Where, therefore, there are several such pleas not overlapping each other, it will generally be safer to plead also the general issue to the whole declaration, as in Cousins v. Pad- don, ubi supra; and see Harrington v. McMorris, 5 Taunt. 2S2. (a) "At the time of the declaration," or " plea pleaded," would be bad. Evans v. Prosser. .3 T. R. ISO ; Eland v. Carr, 1 Fast, 376 : Braithwaite v. Coleman, 4 Nev. & M. 654 ; [ante, 463.] [b) The plea would be bad if these words were omitted. Dendy v. Powell, 3 M. & W. 442 ; [ante, 463.] {<•) Of course any other ground of set-off may be here stated; such as that defendant is indebted to plaintiff on a judgment, in which case set it out as in the form of decla- ration in debt on judgment, post: and see form in Amor v. Cuthbert, •'! M. & G. 1 ; and see Jaques 0. Wit hey, 1 T. R. r>57 ; or on a bond, Dobson v. Lockhart, 5 T. R. 133; 1 Wils. 155, in which case the sum due by virtue of the penalty must be shown; Syin- mons v. Knox, 3 T. R. 65 ; Grimwood v. Bar- ritt, 6 T. R. 400; or on a bill or note, or for use and occupation, &c. In these the causes of set-off must be set out in the plea, as though the defendant were declaring upon them against the plaintiff. Other forms may therefore be taken from the various forms of declarations, taking care to write "plaintiff" for " defendant," and vice versa. See, also, rnanv of these forms in 3 Chit. PI. 7th ed. 119-122. PLEAS IN CONTRACT. SET-OFF. 465 3. Plea that the Debts sued for formed the Subject of a Plea of /Set- off in a Former Action by the Defendant against the Plaintiff, in which a Verdict passed against the Present Plaintiff'. Eastmure v. Lawes, 5 Bing. N. C. 445; S. C. 7 Dowl. 431. See, al bo, Mondel v. Steel, 8 M. & W. 858 ; S. C. 1 Dowl. N. S. 1 ; and another form, Bronkenshir v. Monger, 1 Dowl. N. S. 378. 4. Plea of Set-off on a Bill accepted by Plaintiff. Upon a bill of exchange bearing date the day of , A. T>. , now overdue, (d) drawn by the defendant upon, and accepted by, the plaintiff, requiring the plaintiff to pay to the defendant £ months after date. 5. Plea of Set-off on a Bill indorsed by Plaintiff to Defendant. Upon a bill of exchange bearing date the day of , a. d. 18 — , drawn by the plaintiff upon E. F., whereby the plaintiff requested E. F. months after the date thereof, to pay to the plaintiff or order £ , which said bill was indorsed by the plaintiff to the defendant [_if intermediate indorsees state them'], and was duly presented for payment, and was dishonored, of which the defendant had due notice. 6. Plea of Set-off upon a Judgment. Stanton v. Styles, 5 Ex. 578 ; 19 L. J. Ex. 336. 7. Replication to a Plea of Set-off denying the Debt. That he was not nor is indebted as alleged. 8. Replication of the Statute of Limitations to a Plea of Set-off. (e) That the alleged set-off did not accrue within six years before this suit. 9. Plea to an Action for Goods sold, that the Defendant bought them of Plaintiff's Factor, as the Apparent Principal, and a Set-off against him. (/) That the plaintiff sold and delivered the said goods to the defendant by and (d) See ante, 73, note (i). the defendant would have to show a debt due (e) C. L. P. Act, 1852, sch. B, 52. The within six years equal to plaintiff's claim; statute must be replied specially, or it can- Fairthorne v. Donald, 13 M. & W. 424 ; S. not be relied upon at the trial. Chappie v. C. 2 D. & L. G75 ; or a written memoran- Durston, 1 Cr. & J. 1 ; Gale v. Capern, 1 Ad. dum taking an older debt out of the statute & E. 103. This replication admits a debt as 9 Geo. 4, c. 14, s. 4. stated, but denies that it accrued within six if) [As to this form and the requisites of it, years, and therefore under it the plaintiff Seiiaenza v. Brinsley, 34 L. C. P. 161.1 See cannot show a payment of any part of the forms, &c. Carr v. Hinchliff, 4 B. & C. 547 ; set-off. Moore v. Wood, 2 M." & Rob. 407. Purchcll v. Salter, 9 Dowl. 511; S. C. 1 Q. The plaintiff might reply the statute as to B. 197 ; Warren v. M'Kav, 1 M. & W. 591 ; part of the debt set off and deny the re- Schofield v. Corbett, 11 Q. B. 779; Adding- mainder thereof, adding an averment that ton v. Magan, 10 C. B. 576 ; 20 L. J. C. P. the part denied docs not exceed the plain- 82. The proper mode of replying would be tiff'o claim ; Blakesley v. Smallwood, Q. B. "that the said goods were not," with the con- Hil. T. 1846; but see Briscoe v. Hill, 10 M. sent," &c. of the plaintiff, sold and dcliv- & W. 735 ; the form in the text would seem ered by the said J. S., then being the factor sufficient in such a case, because on that issue of the plaintiff, in J. S.'s name, as owner VOL. II. 30 PLEAS IX CONTRACT. SET-OFF. through the medium of one J. S., who at the time of such sale and delivery •r and agent of the plaint ill' in that behalf, and intrusted (g) by him with the said i_ r ""'l>. and the said J. S., with the consent of the plaintiff, 1 eroods to the defendant in his the said J. S.'s own name, as the true ii.T of the said goods, and the said J. S. then appeared to be such tru owner, by the plaintiff's consent, and the plaintiff did not Dor was lie known by the defendant at or hefore the time of the said •lie proprietor of or to be interested in the said goods, and the defend- ant then bought and received the said goods of and from the said J. S. as his pro; :id did not know and had not the means of knowing that the plaintiff was the owner of the said goods or interested therein, or that the said .1. S. was only an agent in that behalf; and the defendant saith that the said .!. v. the defendant had any knowledge or notice (h) that the plaintiff the real owner of the said goods, before and at the time of the said sale, and .-till is indebted to the defendant an amount equal to the plaintiff's claim \JSfC. stating the debt as in Form 1.] BANKRUPTCY. 1 ". /'/, a of St f-off to an Action by the Assignees of a Bankrupt, (i) That the said E. F. at the time of his bankruptcy was indebted to the octant in an amount equal to the plaintiff's claim for \Jiere state set-ojf~], which amount was. at the commencement of this suit, and still is due to the idant, who is willing to set off the said amount against the plaintiff's claim. 11. Action by Assignees. Plea, Set-off on a Judgment against the I'xinknipt; Replication, that it ivas on a Warrant of Attorney, not filed within Twenty-one Days. Everitt v. Wells, 2 M. & G. 269. TJ. Replication to a Set-off on a Bill accepted by the Bankrupt and indorsed by the Draiver to the Defe?idant, that the Causes of Set-off were only Legal, and not both Legal and Equitable Debts, inasmuch as the Indorsement was a Fraud between the Drawer and the De- fendant to obtain a Set-off for the Former. (k~) Lackington v. Coombs, 6 Bing. N. C. 71. such case, therefore, a set-off of money due from the bankrupt cannot be pleaded ; Groom v. Mealy, 2 Bing. N. C. 138 ; or they 39; Learoyd v. may recover money received after the bank- M. W. 745; Bonzi v. Stew- ruptcy, in which case a set-off for money due from "the bankrupt would be equally bad. - of Parke B. 1 Wood v. Smith, 4 M. & W. 522. See, in Q l; general, Chit, on Contr. "Set-off" If the that this plea is pleaded cause of set-off accrued after the act of ints of the declaration to bankruptcy, plead mutual credit, as in form pplicable. Where as- 13 ; and see, further, as to the distinction bc- • ie for money had and received to tween set-off and mutual credit, Forster v. or on an account Wilson, 12 M. & W. 203. with them in that character, they (Ie) See, as to right of setting-off notes ot m»y recorer in that form of action money bankrupt bankers which came to defendant's fendant by way of fraudu- hands before Jiat, Forster v. Wilson, 12 M lent preference before the bankruptcy; in & W. 191. and .!,-. modo et forma, &c. ' I orn, 9 Dowl. 511 ; - ' \2 Ad. o E 715. PLEAS IN CONTRACT. SET-OFF. 467 * 13. Plea of Set-off and Mutual Credit, in an Action by the Assignee* of a Bankrupt. (J) That before and at the time when the said E. F. became bankrupt, (m) the said E. F. was indebted to the defendant (n) [here state the debts and credits, which may be as follows: for goods bargained and sold, and goods sold and delivered by the defendant to the said E. F., and for work done, &c. [The usual counts.] And the defendant for and on account of the said E. F., and at his request, had in his own name contracted and agreed with divers persons to pay and become liable to pay to the said persons divers sums of money, which said sums the defendant afterwards and before this suit was called upon, and was obliged to pay to the said persons. And the defendant further says that the said E. F. had employed the defendants as the brokers and agents of him, the said E. F., to sell in their own names divers large quantities of goods. and to receive the proceeds of the sale thereof, and the defendant did there- upon sell the said goods, and after the said E. F. became bankrupt received the proceeds of the sale thereof, which is the money in the said count (o) mentioned, and in respect whereof the accounts in the said count (p) mentioned were stated, (q) And the defendant says that mutual credit had been and was given by the defendant, and the said E. F. in respect of the said proceeds, and the claims herein pleaded to, and of the debts so due to the defendant, and sums of money so contracted and agreed to be paid by the de- fendant as aforesaid], and that he had not at the time of giving such credit and contracting such debts as aforesaid, notice of any act of bankruptcy by the said E. F. committed. And the defendant says that the amount of the said debts and credits is equal to the claim of the plaintiff herein pleaded to, and at the commencement of this suit was, and still is, due and owing to the defendant, and the defendant is willing to set off the said amount against the claim of the plaintiffs herein pleaded to. (I) This defence is given by 12 & 13 bankruptcy. See form of mutual credit on Vict. c. 106, s. 171. See form, &c. Gibson v. bills indorsed by the defendant before the » j \K l ng " \-\ 743 ' Groom v - West - 8 bankruptcy for the bankrupt's accommoda- Ad. & L. 758 ; Bittleston v. Timmis, 1 C. B. tion, Hulme v. Muggleston, 3 M. & W 30 ■ 389 ; Lee v. Bullen, 27 L. J. Q. B. 161. Kussell v. Bell. 8 M. & W. 277 ; S. C. 1 Dowl' (m) It must be shown that the mutual N. S. 107 ; and a plea to an action for money credit existed before bankruptcy. Boyd v. had and received to the use of the assignees Mangles 16 M. & W. 337-344. that the defendant paid a bill which hi had (n) ihe debt must be due to the defend- accepted for the bankrupt's accommodation ant in his own right, and not as a trustee for who gave defendant another bill to receive another. Collins v. Jones, 10 B. & C. 777. the proceeds of, which he did after the bank- (o) Count for money received for the use ruptcv. Bittleston v. Timmis. 1 C. B 389 ■ of the assignees after the bankruptcy. S. C. 2 D. & L. 817. The proper way of (») Count on accounts stated with the replying, see Alsager v. Currie, 11 M. & W assignees. u . " A replication would be bad which at- (7) It is necessary to state the mode in tempted to put in issue both the fact of which the credit was given. Alsager v. Cur- mutual credit being given and also the exist- r.e, 11 M. & W 14 ; S. C. 12 M. & W. 751. ence of debts of such a nature as could by It the plea is pleaded to a count for money law be the subject of mutual credit. Hulme received to the use of the assignees after the v. Mugglestone, 3 M. & W. 30. The as- bankruptcy, it should be shown that it was signees cannot reply a fraudulent delivery ol bo received, in consequence of credit given goods, for the price* of vt nich they sue. Bus before adjudication or notice of an act of sell v. Bell, 8 M. & W 277 PLEAS IN CONTRACT. SPIRITUOUS LIQUORS. EXECUTORS. ADMINISTRATORS. fcc. 14. p a an Action by an Executor, (r) That die said E. F. at the time of his death was indebted to the defendant in an amount equal to the plaintiff's claim for [here state the debt as • " Executors," 123, Form 7]. which said amount was at the commencement of this suit and still is due from the plaintiff as executor as aforesaid to the defend- ant, and the defendant is willing to set off the same against the plaintiff's claim. 15. }• PjS - • by an Executor to an Action against him. (s) That the plaintiff at the time of the death of the said E. F. was indebted to the sai I E. F. in an amount equal to the plaintiff's claim for [here state the claim, as ante. - Executor?.'* 121, Form 1]. which said amount at the commence- ment of this suit was and still is due from the plaintiff to the defendant as jtor as aforesaid, and the defendant as executor as aforesaid is williug to ff the same against the plaintiff's claim. SHIP. See " Seaman," ante, 462; " Ship," ante, 244. Pit i to am Ad I against the Captain for excluding Plaintiff, a Pas- ■•. from ih that the Plaintiff conducted himself in an Unbecoming and L'ngentlemanly Ma •. and threatened the Cap- tain with Personal Violence. (£) Prendergast v. Compton. 8 C. & P. io-L. SOLICITOR. See ante, 55, 61, 304, 307. SPIRITUOUS LIQUORS. Plea to a Declaration for Goods sold, that they consisted of Spirits I'.trary to the Tippling Act. (ii) That the said debt is for and on account of spirituous liquors delivered by plaintiff to the defendant at various times, not amounting at any one time be value of 205., and was not really and bond fide contracted at one time to See the statute, ante. 462, Obs. A (s) As to when and to what claims this debt due from the plaintiff's testator cannot and the preceding plea can be pleaded, see be set ofl a debt which accrued to ante, 463, Obs. the plaintiff as executor after the death. (f) And see plea to an action again?: a Hutchinson - -' R e p. 263, commander for false imprisonment, of rea- Shipman r. Thompson, lb. 103 ; Bull, sonable and probable cause to suspect the N. P. ISO; Underwood v. Robertson, 4 plaintiff of felony. Broughton v. Jackson, 18 Camp. 342 : D .-. Ladbrooke, 1 Q. B. 378. Bing. 93 v r. Robertson, 6 Taunt. (u) 24 Geo. 2, c. 40, s. 12 ; 25 & 26 Vict. . Corbett, 6 N. & M. c. 38; [30 & 31 Vict. c. 142, s. 4.] See a Care must be taken, therefore, to re- form under the former act, Hughes v. Done, strict this plea to a count charging a debt to 1 Q. B. 294 ; 10 L. J. Q. B. 65. the deceased. PLEAS IX CONTRACT. TENDER. 469 the amount of 20s. or upwards, and no part of such spirituous liquors was sold to be consumed elsewhere than on the premises where sold, and delivered at the residence of the defendant, the purchaser thereof, in cpjautities not less at any one time than a reputed quart. STAMP. Obs. — See ante, 330. It is doubtful whether the want of a stamp can in any case be pleaded, but at all events such a defence can only be pleaded in cases where the instrument cannot be made good before the trial. See Bradley v. Bardsley, 15 L. J. Ex. 115. STATUTES (ACTIONS ON). See " General Issue by Statute," ante, 286; " Statutes Penal," ante, 245. STOCK-JOBBING. See " Gaming," ante, 395. SUBSTITUTED CONTRACT. See ante, " Rescinded Contract." SUNDAY. See ante, " Sale of Goods," Form 9, and notes. SURETY. See ante, " Guaranty," 137 and 397. SURGEON. Obs. — See ante, "Apothecaries," 48 and 300 ; "Physician," 220 and 451. See, also. Gibbons v. Budd, 32 L. J. Ex. 182 ; Alvarez De la Rosa r. Prieto, 33 L. J. C. P. 262. SURRENDER, (z) TENDER. Obs. — See. in general. Com. Dig.: Bac. Abr.: 2 Stark. Ev. : and [2 Chitty Contr. (11th Am. ed.) 1184 et seq. tit. " Tender."] •• The principle of a plea of tender is this, that the defendant has always been ready at all times to pay upon request, and on a particular occasion offered the monev." Hesketh r. Faweet't, 11 M. & W. 356; S. C. 2 Dowl. N. S. B29; [2 Chitty Contr. (11th Am. ed.) 1185, note (£) and cases cited.] Accordingly, where a tender ha? been actually made, the effect of it may be defeated, by showing a prior or subsequent demand and refusal of the identical sum tendered; because thereby (x) See ante, 426, forms 10 and 11, and notes thereto. 470 PLEAS IN CONTRACT. TENDER. Obs. the plaintiff negatives that the defendant was always ready to pay. See 1 Saund. S86, note (2); Bull. N. P. 156; [2 Chitty Contr. (11th Am. ed.) 1197; Besancon v. Shirley, 9 Sm. & M. 457; Lanier v. Trigg, 6 Sm. & M. 641.] A replication to a plea of tender, that a larger sum was due than that ten- dered, is good, if it appear or be alleged that it was due in respect of a single entire cause of action. Tyler v. Bland, 9 M. & W. 338; S. C. 1 Dowl. N. S. - : 1 '.in in Inn v. Newington, 3 Q. B. 915; Cotton v. Godwin, 7 M. & TV. U7: 1 >ixon v. Clark, 5 C. B. 365 ; Searles v. Sadgrove, 5 El. & Bl. 639. The law i-. that if A. Ik- indebted to B. on several distinct contracts, he may ten- der any one of the sums due. Bac. Abr. Tender, 449 ; Jones v. Owen, 5 Ad. x E. -A"-': Hesketh v. Fawcett, ubi sup.; Smith v. Manning, 5 C B. N. S. _ : Robinson v. Ward, 8 Q. B. 920. But where the sum demanded is due upon a single entire contract, a tender of part is bad, and a set-off cannot be deducted so as to make a tender of the balance sufficient. Searles v. Sad- grove, ubi supra; Philpotts v. Clifton, 10 W. R. 135. It. must, however, ap- pear upon the pleadings that the contract was indivisible. Hesketh v. Faw- cett, ubi supra, Brandon v. Newington, ubi supra. And so it should seem that a plea of tender of part to a declaration on a bill of exchange or a prom- ■iv note would be bad. Cotton v. Goodwin, ubi supra;, Hesketh v. Faw- cett. 'ubi supra; Wain v. Baily, 2 P. & Dav. 307; S. C. 10 Ad. & E. 616. Nor can a tender be pleaded to a bill or note at all, or to a bond conditioned fur payment on a day certain, after it becomes due; Poole v. Tunbridge, 2 M. & W. 225 ; Hume v. Peploe, 8 East, 168 ; Dixon v. Clark, ubi supra ; Do- bie v. Larkan, 10 Ex. 776; 2 Wms. Saund. 486 i; unless to a note payable on demand. Norton v. Ellam, 2 M. & W. 463. The debtor is bound to ten- der "ii the precise dav, and cannot plead a tender made afterwards. But the drawer or indorser of a bill may tender the amount without interest upon notice of dishonor. Siggers v. Lewis, 1 Cr., M. & R. 370 ; Walker v. Barnes, 5 Taunt. 240. If the plaintiff intends to set up that the debt was payable on a day certain, and that the tender was not made on the day he should so re- ply, where it does not appear by the declaration that the debt was so payable. Smith v. Manners, 5 C. B. N. S. 632. Tender of a larger sum will support a plea of tender of a smaller ; Dean v. James, 4 B. & Ad. 548 ; but an actual tender and production of the money, unless especially dispensed with, must be proved. Finch v. Brook, 1 Scott, 70-76; 1 Bing. N. C. 253; Douglas v. Patrick, 3 T. R. 683; Read v. Gold- ing, 2 M, & G. 86. [As to the money in which a tender is to be made, see 2 Chitty Contr. (1 1th Am. ed.) 1196, and note (6), 1197, and note (e 1 ). Effect of creditor not objecting to the quality of the tender, 2 Chitty Contr. 1196, 11!J7. and note (e 1 ).] Moreover, the tender must not be clogged with any condition : therefore, an offer to pay £10 as the balance of a disputed account, upon condition of receiving a receipt in full, is an insufficient tender. Foord v. Noll, 2 Dowl. N. S. 618 ; Jennings v. Major, 8 C. & P. 67; Bowen v. Owen, 11 Q. B. 13; [2 Chitty Contr. (11th Am. ed.) 1194 et seq. ; Thayer v. Brackett, 12 Mass. 450; Richardson v. Boston Chemical Laboratory, 9 Met. 42; Gassett v. Andover, 21 Vt. 342.] But a mere declaration, such as ■ this is the amount of your bill," will not invalidate a tender. Henwood v. Oliver, 1 Q. B. 409. See, also, Bull v. Parker, 2 Dowl. N. S. 345. Whether the tender has been conditional or not is a question for the jury. Eckstein v. Rej nolds, 7 Ad. & E. 80. Tender is not pleadable to a claim for unliqui- dated damages. Dearie v. Barrett, 2 Ad. & E. 82. « l ,: ' :i n< tender is an issuable plea, and maybe pleaded after time obtained. See Moore v. Smith, 1 H. Bl. 369; Kilwick v. Maidman, 1 Burr. 59. Where there is any doubt as to the formality or proof of the tender, the proper course is to plead payment of money into court ; Leatherdale v. Sweepstone, 3 C. & P. :; 12 ; because if defendant fail on his plea of tender, he will have to pay all co-is, whereas on the plea of payment of money into court, defend- ant only pa; 3 up to the time of his plea, if plaintiff take it out and pro- ceed no fun her ; r . 12 II. T. 1853; and defendant obtains all his subsequent costs if plaintiff unsuccessfully proceed further after the plea of payment of money into court. As to staying proceedings on payment before declaration, &c. <>! debl and costs, see 2 Chit. Arch. Ind. " Staying," &c. The tender, if pleaded to a special count, admits the contract therein stated; if pleaded to PLEAS IN CONTRACT. TENDER. 471 Ons. the common count, it is .an admission only to the extent of the sum tendered Cox v. Brian, 3 Taunt. 95 ; Buhner v. Home, 1 N. & M. 117, [ante, 440.] Nc other plea to the same course of action will be allowed. Maclellan v. Howard, 4 T. R. 194 ; Orgill v. Eemshead, 4 Taunt. 459. The sum tendered must be paid into court, or plaintiff may sign judgment as for want of a plea as to the sum tendered, but not for the residue of the demand stated in the declaration. Chapman v. Hicks, 2 Dowl. 641. [See post, 471, note (z).] Money deposited in court in lieu of bail cannot be transferred to the account of a payment into court on a plea of tender. Stultz v. Hencage, 10 Bing. 5G1. The amount tendered is not to be considered as recovered in the action. James v. Vane, 29 L. J. Q. B. 169 ; and see Beard v. Perry, 31 L. J. Q. B. 30. 1. The Gceneral Issue, except as to Part, and a Tender of that Part. The defendant, {y) except as to the sum of £ [the exact sum tendered'], parcel of the money claimed, says that he never was indebted as alleged, (z) And as to the said sum of £ , parcel, [<§•'••]. to the plaintiff, as in the said plea alleged, in this, to • that after the accruing of the said causes of action as to the said sum of £ . parcel [#/, that is, his title, to make the convey- v. Pirn, 7 M. & W. 482 ; and see Jones v. ance at the time when the defendant was Barkley, 2 Doug. G84. called upon to accept it; De Medina r. Nor- (g) Under this plea the defendant may man, 9 M. & W. 820 ; and Kirtley v. Cope- show any objections which existed to the land 1 Cr. & M. 379 ; and under it any act lease constituting the plaintiffs title to the which disqualifies the plaintiff from perform- term which he professes to sell. If the de- ing the contract, such as his insanity, may feet of title occurred from matter posterior be uiven in evidence. lb. See Isherwood v. to that lease, that should be specially pleaded. Whitmore, 10 M. & W. 757 ; S. C. 11 M. & Wheeler v. Wright, 7 M. & W. 360. W. 7. If the declaration do not aver spe- (h) See Poole v. Hill, 6 M. & W. 840. cifically that the plaintiff had a title, or was In Vonhollen v. Knowles, 12 M. & W. G02, ready to convey at the time of the breach of it was held that the defendant might show the agreement, it will be proper to introduce under this plea that the lease actually ten- that restriction into the traverse. As it is dcred contained untrue recitals which might sufficient if plaintiff can procure a title be- afterwards have operated, against the defend- fore he is called on to complete, a plea which ant, and therefore that he was not bound to traversed an averment in the declaration that execute it. he had a title at the time he made the agree- 474 PLEAS IN CONTRACT. VENDORS, ETC. G. {' lor, for not delivering an Abstract, $c; that th, /> • ndant discharged him from so doing. (J) That ! after the making of the said agreement, and before and on the said day of , a. d. , and always afterwards, ready and willing and able to deliver to the plaintiff, or his solicitor, at his the defend- gut's an abstract of his title to the said tenements, and to deduce such good title thereto as aforesaid, and to complete the said purchase, accord - ement on his part, and was about so to do, but the plaintiff, ind on the said day of , a. d. . and before this suit, dis- charged and prevented the defendant from offering to deliver or delivering swell abstract and deducing such title, and completing the said purchase on his part, and the plaintiff has not since and before this suit offered to perform the •ement on his part, or required the defendant to deliver such abstract to the plaintiff or his solicitor, or deduce such title, or complete the said pur- -•■ on his the defendant's part. (i) The late case of Rippinghall v. Lloyd, 5 B. i A - atains much information on the subject. The vendor covenanted with the vendee that he would, on or before the 30th of November, deduce a good title to the premises sold, and would, on or before the 8th of January, execute a r conveyance for conveying the fee- Edmple, and it was stipulated that the con- ,ce should be prepared by and at the use of the vendee; and further, that if the vendor should not verify the title to the vendee or t by production of deeds, &c. at Norwich, Lynn, or London, before the 30th of November, the agreement should be void. In an action of covenant by the ven- dee two breaches were assigned ; first, that the vend' t, on or before the 30th of • a good title ; secondly, that the defendant did not, on or before the 8th of .January, execute a proper convey- ance. PI ; hat the vendor did, before : uber, produce and show divers in part deducing a good title, and that until and upon that day he was i willing to produce and show to ■ completing such title, and ■ : or before that day have pro- - to the vendee or : ndee had notice, but that he would not by himself or agent ' il demurrer, that the the vendor's cov- 1, and therefore the facts - : and that if the cov- enant could be read as qualified by the snb- ation a- I lace, the rred notice to the vendee at which of the three places the vendor his deeds. Plea, i. that by a subse- ;ent, made before any breach committed, the time of deducing title had been enlarged, and that the vendor was ready to deduce title within such enlarged time. Thirdly, the defendant pleaded a sim- ilar agreement after breach, and that plain- tiff accepted such agreement, as a substitu- tion for the former, and as a satisfaction of the damages resulting from the breach, and that the defendant was ready to fulfil such agreement, but plaintiff refused, &c. Held, on special demurrer, that the second plea was bad in not stating the new agreement to have been under seal. Leave was given to amend the second plea by stating the new agreement to have been in writing ; but qucere, if it were so, whether the facts amounted to a good accord and satisfaction. Plea to the second breach of covenant that the vendor until and on the Sth of January was r and willing to execute proper conveyances, and would have executed the same, if the plaintiff would have prepared and tendered them, but that he did not do so. Replication, the vendor did not deduce a good title, wherefore the vendee did not prepare the conveyance. Rejoinder, that although the vendor within reasonable time before the Sth of January was ready and willing and offered to deduce a good title, so that the vendee might, before the 8th of January, have prepared and tendered conveyances, whereof the vendee had notice, yet the ven- dee refused to have such title deduced, and discharged the defendant from deducing such title. S that the vendor was not ready and willing to deduce, On general demurrer, held, that upon this breach the matter pleaded by the vendee was no answer to the pleas of the vendor, and that the latter was entitled to judg- ment. PLEAS IN CONTRACT. WARRANTY. 475 [7. Plea by Vendor, that he made a Good Title according to the Con- ditions of Sale. Simmons v. Hazeltine, 5 C. B. N. S. 554. See Smith v. Tanner, 1 M, & G. 803.] WAGES. See ante, 395. WAIVER OF PLEA. Obs. — By R. 8, H. T. 1853, " The defendant shall not be at liberty to waive his plea, or enter a relicta verificatione after a demurrer, without leave of a court or a judge, unless by consent of the plaintiff or his attorney. Under the old practice, waiving a plea was a mode of evading paying costs on a demurrer. Cooper v. Paynter and Hutton v. Turk, cited in M' In tyro v. Miller, 13 M. & W. 725-734, note. WARRANTY. Obs. — See declarations, ante, 256. Non assumpsit does not deny the breach, but only the sale and warranty. R. 6, T. T. 1853; Smith v. Parsons, 8 C. & P. 199. Where only a denial of the unsoundness, and non assumpsit were pleaded, Tindal C. J. held that the defendant could not show that the plain- tiff entered into reference of the question of unsoundness to two veterinary surgeons, and that they signed a paper containing their decision, by which the plaintiff was bound. Watson v. Denton, 7 C. & P. 85; and see Ellis v. Chinnock, lb. 169. 1. General Issue. Non assumpsit, ante, 284. 2. Denial of the Warranty. That he did not warrant, as alleged. 3. Plea to Declaration on the Warranty of a Horse; Denial that the Horse was unsound. That the said horse was at the time of the making the said warranty sound. 4. Plea to a Declaration on the Warranty of a Horse, that the Defend- ant took it back, and delivered Another to the Plaintiff in Satisfac- tion. That after the accruing of the said causes of action, and before this suit, it was agreed between the plaintiff and the defendant that the defendant should take back from the plaintiff the said horse, and should deliver to the plaintiff a certain other horse of the defendant, in satisfaction and discharge of the said alleged causes of action ; and the defendant afterwards, and before this suit, in pursuance of the said agreement, took back from the plaintiff the said horse, and delivered to the plaintiff, and the plaintiff received the said other horse, in satisfaction and discharge of the said alleged causes of action. 476 PLEAS IN CONTRACT. WORK AND MATERIALS. WITNESS. Ante, 263. WORK AND MATERIALS. Effect of non assumpsit and never indebted, ante, 284. Plea to a Count for Work in composing a Farce for the Defendant, that it teas an Indecent and Libellous Production. (&) That the said work and labor of the plaintiff were performed and bestowed by the plaintiff for the defendant in writing and composing a farce for the defendant at his request ; and that the said farce was designed to be by the plaintiff, and the defendant respectively, a farce of an indecent and immoral nature and tendency, and to contain and does contain libellous, scandalous, in- decent, and immoral passages, sentiments, words, and matters, and was not nor is a farce fit, legalj or proper to be performed, read, or published. (a) Illegality of consideration must be bring it about, may be entitled to compensa- dly pleaded. Ante, 401. A contract as tion for his trouble. Wells v. Porter, 2 Bing. between two persons may be illegal and void, N. C. 722. and yet an agent, innocently employed to PRECEDENTS, Etc. PART II. DECLARATIONS IN TORT. ACCIDENT. See post, " Negligence." AGENTS. Obs. — An action of tort lies against an agent at the suit of his employer for neg- lect or unskilfulness in the execution of the business which he was retained to perform. Courtney v. Earle, 10 C. B. 73; 20 L. J. C. P. 7. See Samuel v. Judin, 6 East, 333; Elsee v. Gatward, 5 T. R. 143; see, also, Boorman v. Brown, 3 Q. B. 510; 10 L. J. Q. B. 273; 11 L. J. Ex. 437; 11 CI. & Fin. ix.; [Washington v. Eames, 6 Allen, 419. But not for injuries caused by his mistake in a doubtful matter of law. Mechanics' Bank v. Merchants' Bank, 6 Met. 13; Hicks v. Minturn, 19 Wend. 550.] The forms of declaration in contract, part 1, 38-47, will assist in framing a declaration in tort against an agent. In tort a promise or undertaking to use due care, &c. should not be alleged. See Corbett v. Packington, 6 B. & C. 268 ; Smith v. White, 6 Bing. N. C. 218. Where a declaration, after stating certain facts, alleges that it thereupon became the duty of the defendant, &c. the allegation is to be un- derstood as a mere exposition of the legal liability supposed to result from the previously stated facts, and as an assertion that tha defendant became there- by bound by law to do the act, and not as a distinct substantive allegation. Brown v. Mallet, 5 C. B. 599; 17 L. J. C. P. 227; [1 Chitty PL 397, 398.] Unless the duty results in all cases from stated facts, the declaration so framed is bad. The allegation of duty is superfluous where the facts stated show a legal liability, and it is useless where they do not. lb. See, also, Sey- mour v. Maddox, 16 Q. B. 326; 20 L. J. Q. B. 327; Roberts v. Great Wes- tern Ry. Co. 4 C. B. N. S. 506; 27 L. J. C. P. 266. Since the Com. L. Pr. Act, 1852, counts in contract and tort may be joined in the same declaration (s. 41) ,so that it is now comparatively of little consequence whether a count be framed in tort or contract. [May v. Western Union Telegraph Co. 112 Mass. 90.] See, generally, as to the liability of agents, [1 Chitty Contr. (11th Am. ed.) 274 et seq. ; 2 lb. 803 ;] Paley on Agency, by Lloyd; Story on Agency. See forms, " Attorneys," " Bailees," post, 483, 484. 1. Against a Broker for selling on Credit, (a) For that the plaintiff employed the defendant for reward to sell goods for (a) Boorman v. Brown, 3 Q. B. 510; 10 L. to sell has an authority to sell on credit or J. Q. B. 273; 11 L.J. Ex. 437; 11 CI. & F. cash, according to the usage of the trade. 1 ; [ante, 42, note (z).] An agent authorized But the credit must not be beyond the usual 478 DECLARATIONS IN TORT. AIR. the plaintiff for ready money, and the defendant received the said goods for such purpose, and afterwards sold the said goods on credit, whereby the plain- till' has been deprived of the price of the said goods, and is liable to lose the same. 2. Against a West India Agent for improperly drawing a Bill in Plaintiff's Name, on which the Plaintiff was sued to Judgment. Pickwood v. Neate, 10 M. & W. 206. 3. Against an Accountant for so negligently making out his Accounts that Plaintiff paid Money ivhieh he was not liable to pay. (6) Story v. Richardson, 6 Bing. N. C. 123. 4. Against an Insurance Broker for not effecting an Insurance pur- suant to his Instructions, (c) Turpin v. Bilton, 5 M. & G. 455; 12 L. J. C. P. 167; Cahill v. Dawson, 3 C. B. N. S. 106 ; 26 L. J. C. P. 253. 5. Against a Commission Agent for selling for less than Invoice Prices. Raleigh v. Atkinson, 6 M. & W. 670 ; 9 L. J. Ex. 206. 6. Against an Agent for falsely and fraudulently representing that he had Authority to make a contract for a TJiird Person. Randell v. Trimen, 18 C. B. 786; 25 L. J. C. P. 307. (d) 7. Against Defendant for misrepresenting the Character of an Agent. Foster v. Charles, 6 Bing. 396; 7 lb. 105; Wilkin v. Reed, 15 C. B. 192; 23 L. J. C. P. 193. [8. Against a Surveyor and Valuer for Loss arising from Ignorance and want of Skill in his Profession. Jenkins v. Bentham, 15 C. B. 168. AIR. Obs. — The enjoyment of air is governed by the same principles as those which govern the enjoyment of light. See Gale on Easements, by Willes. The pre- period, nor given to a notoriously insol- (c) It is now decided that an agent may vent person. Scott v. Surman, Willes, 407 ; insure for himself and for his principal. Houghton v. Matthews, 3 B. & P. 489; Waters v. The Monarch Life Insurance Com Anon. 12 Mod. 514, per Holt C. J. ; Paley pany, 5 El. & Bl. 870; 25 L. J. Q. B. 102 on Agency, by Lloyd ; [ante, 42, note (z).] But it appears an agent is not positively (b) An agent is bound to keep regular ac- bound to do so without orders, or unless counts. White v. Lady Lincoln, 8 Ves. 369 ; authorized by the usages of trade, or the Morgan v. Lewes, 4 Dow's R. 52. See Ladv mode of dealing between him and his prin- Ormond v. Hutchinson, 13 Ves. 47-53; cipal. See Paley on Agency, by Lloyd, [Eaton v. Welton, 32 N. H. 352; Clarke v. 18-20. Moody, 17 Mass.- 145;] Paley on Agency, by (d) And see ante, 45, note (c) ; and Pow Lloyd, 47, 48; [Story Agency, §§ 203, 204, v. Davis, 1 B. & S. 220; 30 L. J. Q. B. 257 332, 333.1 Hughes v. Graeme, 33 L. J. Q. B. 335 DECLARATIONS IN TORT. ANCIENT WINDOWS. 479 Obs. scription act does not apply to a right to the free passage of air. Webb v. Bird, 30 L. J. C. P. 384. ANCIENT WINDOWS OR LIGHTS. Obs. — An action is maintainable by the tenant in possession, or the owner of the immediate reversion (Com. Dig. Action on the Case for a Nuisance, B.) of a house or other building to recover damages from the erector (Rosewell v. Prior, 12 Mod. 636) or occupier (Payne v. Rogers, 2 H. Bl. 350) of any build- ing which obstructs the light from his windows, if the plaintiff can prove a valid grant of the privilege, or can show twenty years' undisturbed enjoyment • of the light by the occupiers of his house, and the defendant should fail to establish that such enjoyment was in consequence of some deed or written instrument. See Gale on Easements, 14 7, 148. By s. 3 of 2 & 3 W. 4, c. 71, " When the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding; see Salter's Co. v. Jay, 3 Q. B. 109; Mer- chant Taylors' Co. v. Truscott, 11 Ex. 855; Frewen v. Phillips, [11 C. B. N. S. 449;] 30 L. J. C. P. 356; unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or li-riling." See the decisions on s. 2, collected in Gale on Easements, by Willes, p. 145 ; and particularly Bright v. Walker, 1 Cr., M. & R. 211; Tickle v. Brown, 4 Ad. & E. 369; Flight v. Thomas, 11 Ad. & E. 690; 8 CI. & % Fin. 231. See per Lord Campbell, Eaton v. Swansea Waterworks Co. 17 Q*. B. 272. It is observable that the 3d section does not require an enjoy- ment '■ as of right," or under a "claim of right thereto," and therefore a verbal permission to enjoy the lights ensuing for twenty years will confer a right. Mayor of London v. Pewterer's Co. 2 M. & R. 409. By the 4th section, " each of the respective periods of years hereinbefore men- tioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter, to which such period may relate, shall have been or shall be brought into question; and no act or other matter shall be deemed to be an interruption within the meaning of this statute, unless the same shall have been or shall be acquiesced in for one year after the party interrupted shall have had or shall have notice thereof and of the person making or authorizing the same to be made." Under this section it is held that the acquiescence for a year, is not limited to obstructions preceded and followed by portions of the twenty years. Flight v. Thomas, ubi sup. ; and see Gale on Easements, by Willes, pp. 149, 150, and notes. By the 5th section, " in all actions upon the case, and other pleadings, wherein the party may now by law allege his right generally, without averring the ex- istence of such right from time immemorial, such general allegation shall be deemed sufficient; and if the same shall be denied, all and every the matters in this act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation." See Halford v. Hankinson, 5 Q. B. 584. The 7th section enacts, that where the right is by the act deemed to be " abso- lute and indefeasible " {aide sect. 2, and sup. sect. 3, as to light enjoyed for twenty years), the proviso, or exception, as to infants, &c. and in the case of enjoyment against tenants for life only, &c. shall not be applicable. The words are, " provided, also, that the time during which any person otherwise capable of resisting any claim to any of the matters before mentioned shall have been or shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible." Clayton v. Corby, 2 Q. B. 813; Pye v. Mumford, 11 Q. B. 666. [For cases showing the extent DECLARATIONS IN TORT. ANCIENT WINDOWS. , to which the English law respecting ancient lights has b*en ■**>&** °J renudiated in the American states, see 3 Kent. 448; Parkei i. roote, 19 : Mv,r* r. Jemmel, 10 Barh. oST^Bank^ v Amencan 1 ract Socx- Palmer ». \\ etniore, kins r. Fieri t Gray, and cases cited. Clawson o. Prunrpse, la Am. Law Keg. (A. is.) 6, 2b. Mr. Washburn in his work on Easements &c. p. [498] 583, says, " It will be found, it is believed, that in New York. Massachusetts, South Carolina. Maine. Mary- land. Pennsylvania. Alabama, and Connecticut, the doctrine of gaining a pre- scriptive right to light and air. by mere length of enjoyment, has been dis- carded: while the English rule in" this respect has been retained in Illinois, New Jersey, and Louisiana," and the learned author examines the cases at length.] A party entitled to the enjoyment of ancient lights will be deemed to have abandoned his privilege it' lie suffer the windows to be permanently blocked up for twenty years: Lawrence v. Obee. 3 Camp. 514; see Stokoe v. Singers, 8 El. o* Bl. 31; or in lieu of windows, build a blank wall, and allow it to re- main for many) seventeen years, when his neighbor erects a house. Moore v. Paws, n. 3 B. & C. 332: [Washburn Easements &c. (2d ed.) 631 [542]; Perkins v. Dunham, 3 Strobh. 224: Dver v. Sanford, 9 Met. 395; Taplin v. Jones, 11 H. L. Cas. 290. Sec CrossleV v. Lightowler, L. P. 3 Eq. 279; S. C. 2 Ch. Ap. 4.S2: Cook v. Bath. L. R. 6*Eq. 177.] And he may so alter the mode in which he has been allowed to enjoy the easement as to lose the right altogether: and. therefore, where a person entitled to light through certain apertures in a barn, converted the barn into a malt-house and cut windows where the apertures had been, it was decided that the judge, at the trial of an action for a subsequent obstruction, ought not to have rejected evidence offered to show that the mode of enjoying the light had been thus altered to the defendant's prejudice. Garritt v. Sharp, 3 Ad. & E. 325; Blanchard v. Bridges, 1 Ad. & E. 536. See Renshaw v. Bean. 18 L. J. Q. B. 112; [18 Q. B. 112;] Cawkwell v. Russell, 26 L. J. Ex. 34 : Hutchinson v. Copestake, 31 L. J. C.P. 19; [9 C. B. N. S. B63;] Jones v. Tapling, [11 C. B. X. S. 283;" 31 L.J. C. P. 110; 34 L.J. C. P. 342: [11 C. B. N. S. B26; 11 H. L. Cas. 290;] overruling Renshaw r. Bean, and Hutchinson v. Copestake: Binckes v. Pash, 31 L. J. C. P. 121 ; [11 C. B. N. S. 324: Martin v. Gohle, 1 Camp. 310; Lanfranchi (-.Mackenzie. L. R. 4 Eq. 411-429. The right is not losl merelv by the owner of the dominant tenement slightly obscuring his own lights. Arcedeckne v. Kelk, 2 Giff. 981 ; Staight v. Burn, L. R. 5 Ch. Ap. >. The owner of the servient tenement will be bound by acquiescence in the alteration of ancient lights. Cotchino- v. Basset, 32 Beav. 101; Johnson v. Wyatt, ■-' De <;.. J. & S. 18.] But where no injury is occasioned to a neighbor, a window may be enlarged without losing the right to its original quantity of light. Chandler v. Thomp- son, 3 Can - [An ancient window may be replaced by one of the same size which will have the same privilege as the old one ; see Luttrel's case. 4 B Hutchinson v. Copestake, 9 C. B. X. S. 863; but the dominant owner must not exceed the old limits; Turner r. Spooner. 1 Dr. & Sm. 467: Curri. i rbett, 2 Dr. & Sm. 35: and see Martin v. Headon. L. R. 2 Eq. 425; otherwise the occupier of the servient tenement may obstruct such parts of the new window or windows as are not privileged, but he must be careful in so doing not to obstruct the privileged portion. Taplin r. Jones, 11 H. L. Cas. 290; Weatherley i\ Ross, 1 H. & M. 349; Wilson v. Townend, DECLARATIONS IN TORT. ANCIENT WINDOWS. 481 Obs. 1 Dr. & Sm. 324; Binckes v. Pash, 11 C. B. N. S. 324; Cooper v. Hubback, 30 Beav. 160.] See, as to extinguishment of easements, Gale on Easements, by Willes, 469, 512; [Washburn Easements &c. (2d ed.) 605 et seq.~] An action lies for darkening ancient lights, although tbe building by which they were darkened was erected under the provisions of the building act, 14 Geo. 3, c. 78, s. 43, and the action was not commenced within the time pre- scribed by that act, and no notice of action given. Wells v. Ody, 1 M. & W. 452; 7 C. & P. 410; Cotterill v. Griffiths, 4 Esp. 69. See Arcedeckne v. Kelk, 2 Giff. 683. For however short a period light may have been enjoyed, a vendor, lessor, or one claiming under him, cannot obstruct the light of a building in the possession of his vendee, lessee, or one claiming under either of them, where the window through which such light has access existed at the time of the sale or demise, for this would be in derogation of his own grant; Palmer v. Fletcher, 1 Lev. 122; Compton v. Richards, 1 Price, 27; Swansborough v. Coventry, 9 Bing. 305 ; [Washburn Easements &c. (2d Am. ed.) 579 et seq. ; Story v. Odin, 12 Mass. 157; 3 Kent, 448 ;] nor can a tenant obstruct the light of a house adjoining to the land he rents, and in the possession of his landlord, &c. enjoyed at the time of the execution of his lease. Riviere v. Brown, 1 R. & Mo. 24. As to licenses to open windows, see Bridges v. Blanchard, 3 N. & M. 691; 1 Ad. & E. 536; Blanchard v. Bridges, 4 Ad. & E. 176. As to effect of conduct amounting to acquiescence, 31 L. J. C. P. 61. If the obstruction be continued, a second action may be brought even by a reversioner; Shadwell v. Hutchinson, 2 B. & Ad. 97; Battishill v. Reed, 18 C. B. 696; 25 L. J. C. P. 290; though the first ob- struction were before the plaintiff's possession of the property. Thompson v. Gibson, 7 M. & W. 456. See Todd v. Flight, 9 C. B. N. S. 377; 30 L. J. C. P. 21. No diminution of light is a sufficient cause of action, unless it render the build- ing less fit for the purposes for,which it was before used. Parker v. Smith, 5 C. & P. 438; Back v. Stacey, 2 C. & P. 465; Martin v. Gabb, 1 Camp. 322 j 4 Esp. R. 69. It is not sufficient that a ray or two of light should be ob- structed. The question is, whether in consequence of the obstruction, the plaintiff has less light than before to such a degree as to injure his property in point of value or occupation. Pringle v. Wernham, 7 C. & P. 377; Wells v. Ody, 1 M. & W. 452 ; 7 C. & P. 410. [With regard to the important question, what amount of damage or injury must be sustained to give a right of action or suit, it was observed by Wood V. C. in Dent v. Auction Mart Co. L. R. 2 Eq. 245, that the doctrine established in Attorney General v. Nieholl, 16 Ves. 343, and recognized by Lord Westbury in Jackson v. Duke of Newcastle, 10 Jur. N. S. 688-690, was this, that " there are many ob- vious cases of new buildings darkening those opposite to them, but not in such a degree that an injunction could be maintained or an action upon the case, which however might be maintained in many cases which would not support an injunction." V. C. Wood further observed, adopting the ruling of Best C. J. in Back v. Stacey, 2 C. & P. 465, " that at law, in order to give a right of action and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, or to prevent the plaintiff from carrying on his accustomed business on the premises as ben- eficially as he had formerly done." In llobson v. Whittingham, L. R. 1 Ch. Ap. 442, also, it was held, that there must be a material (see judgment of Bruce L. J.) amount of damage to support a bill for injunction in such cases. See, also, Martin v. Headon, L. R. 2 Eq. 425, 434; Lvon v. Dilli- more, 14 W. R. 511; Webb v. Hunt, 15 W. R. 725; Stokes v. City Off. Co. 2 H. & M. 650; Durrell v. Pritchard, L. R. 1 Ch. Ap. 244 ; Johnson ». Wy- att, 2 De G., J. & S. 18, and cases in notes to Am. ed.; Jackson v. Duke of Newcastle, 3 De G., J. & S. 275. The owner of a building containing ancient lights is entitled to all the light he enjoyed previous to the interrup- tion complained of, without any material diminution of it. Yates v. Jack, L. « R. 1 Ch. Ap. 295. There is no distinction between the rights in town and in the country. Martin v. Headon, L. R. 2 Eq. 425 ; Dent v. Auction Mart Co. L. R. 2 Eq. 238; but see Clarke v. Clark, L. R. 1 Ch. Ap. 16.] As to an injunction to restrain the obstruction of ancient lights, see post, " In- junction." VOL. II. 31 482 DECLARATIONS IN TORT. ASSIGNEES. [1. For obstructing the Plaintiff y & Windows, (e) The venue is local'] For that the plaintiff was possessed (/) of a dwelling- house, (g) and was entitled to have the light and air enter therein through a certain window in the said dwelling-house; and the defendant prevented and obstructed the light and air from entering through the said window into the .-aid d\v idling-house by erecting (h) a wall [or by keeping and continuing a wall before them wrongfully erected] near to the said window, whereby the said dwelling-house has been rendered dark, unwholesome, and of less value, ami the plaintiff has incurred expense in opening other windows to obtain light and air in the said dwelling-house.] 2. By a Reversioner of a House against a Railway Company for erecting a Station, whereby his Ancient Lights were obstructed, (t) Turner v. Sheffield & Rotherham Company, 10 M. & W. 425 ; [Salters* Co. v. Jay, 3 Q. B. 109 ; Metropolitan Association &c. v. Patch, 5 C. B. N. S. 504 ; Stokoe v. Singers, 8 El. & Bl. 31.] APPRENTICE. See, as to enticing away and harboring plaintiff's apprentice, Cox v. Mundy, 6 C. B. N. S. 375 ; Lumley v. Gye, 22 L. J. Q. B. 463 ; 2 El. & Bl. 216 ; Evans v. Walton, L. R. 2 C. P. 615 ; 36 L. J. C. P. ; post, " Master and Ser- vant." ARREST. See ante, part 1, p. 52, and post, " Trespass to the Person ; " " False Im- prisonment." ♦ ASSAULT. Post, " Trespass to the Person." ASSIGNEES. See post, "Trover," ante, part 1, p. 54, and tit. "Bankruptcy." (e) See forms, Flight v. Thomas, 11 Ad. & " messuage," proof of part only of a house, E. 690; Wells v. Ody, 1 M. & W. 452; viz. certain rooms therein; variance imma- Davies v. Marshall, 3l' L. J. C. P. 61; [10 terial. Fenn v. Grafton, 2 Bing. N. C. 617. 'C. B. N. S. 697 ; Glare v. Harding, 27 L. J. (h) See Shadwell v. Hutchinson, 2 B. & Ex. 286 ; Wale v. Westminster Palace Hotel Ad. 97 ; Thompson v. Gibson, 7 M. & W. Co. 8 C. B. N. S. 276 ;] Merchant Taylors v. 456 ; Brent v. Haddon, Cro. Jac. 555 ; Pen- Truscott, 25 L. J. Ex. 173; 11 Ex. 855; ruddock's case, 5 Co. R. 100; Winsmore v. [White v. Bass, 7 H. & N. 722-1 Greenbank, Willes R. 583 ; Salmon v. Bens- (/) Possession, in fact, is sufficient to sus- ley, R. & M. 186. tain the action, and no title need be stated. 2 (t) Other forms, Metropolitan &c. v. Saund. 113 a, note (1) ; Com. Dig. PI. C. 39. Patch, 5 C. B. N. S. 504 ; 27 L. J. C. P. (g) Or " workshop," or " malthouse," &c. 330 ; Stokoe v. Singers, 8 El. & Bl. 31 ; 26 28 the case may be. Declaration stated a L. J. Q. B. 257. DECLARATIONS IN TORT. ATTORNEYS. 483 ATTORNEYS. Obs. — See Obs. ante, 55-59, and 304. An action of contract or tort may be brought against an attorney for carelessness or unskilfulness to his client's prejudice in violation of the implied promise or duty created by the retainer of the attorney in his professional capacity. Shilcock v. Pasman, 7 C. & P. 289 ; Lampbier v. Phipos, 8 C. & P. 479; [ante, 55-59; 2 Chitty Contr. (11th Am. ed.) 815-821, and cases in notes; Reilly v. Cavenaugh, 29 Ind. 435; Purves v. Landell, 12 CI. & Fin. (Am. ed.) 91; Hart v. Frame, 6 CI. & Fin. 193, and note (1); Jennings v. McConnel, 17 111. 148; Holmes v. Peck, 1 R. I. 242; Cox v. Sullivan, 7 Geo. 144; Derrickson v. Cady, 7 Barr, 27; Weimer v. Sloane, 6 McLean, 259; Evans v. Watrous, 2 Porter, 205; Pen- nington v. Yell, 11 Ark. 212; Wilson v. Russ, 19 Maine, 421; O'Barr v. Alexander, 37 Geo. 195; Bowman v. Tallman, 27 How. Pr. 212; Phillips v. Bridge, 11 Mass. 246; Oldham v. Sparks, 28 Texas, 425; Stevens v. Walker, 55 111. 151; Harter v. Morris, 18 Ohio St. 492.] When tort is adopted, the forms in contract (ante, 60 et seq.) may be readily applied, alleging a duty in- stead of a promise. An attorney is liable for arresting a party on a capias, which is afterwards set aside for irregularity; Codrington v. Lloyd, 8 Ad. & E. 449; Jones v. Wil- liams, 8 M. & W. 356; or for issuing execution against the wrong party. See Davies v. Jenkins, 11 M. & W. 745; Green v. Elgie, 5 Q. B. 99. As to evi- dence sufficient to fix him, see Bowles v. Senior, 15 L. J. Q. B. 231. Tbe client is also liable in such case as the act done by the attorney would be within the scope of his authoritv. Jarmain v. Hooper, 1 D. & L. 769 ; 6 M. & G. 827; Collet v. Foster, 26 L. J. Ex. 412 ; 2 H. & N. 356 ; and see Wil- son v. Turanian, 6 M. & G. 236. But an action will not lie against an attor- ney without proof of malice, for wrongfully suing a different person from the one indicated by his instructions. Davies v. Jenkins, 11 M. & W. 745. See Yearsley v. Heane, 14 M. & W. 322 ; Ewart v. Jones, lb. 774. If an attorney commences an action without plaintiff's authority, he is liable in a summary way or by action. See Hubbart v. Phillips, 2 D. & L. 707 ; 14 L. J. Ex. 103 ; Robson v. Eaton, 1 T. R. 62. 1. Against an Attorney for letting Judgment go by Default after In- structions to Defend. (&) For that the plaintiff retained and employed the defendant, as an attorney of the court of , to defend an action in the said court, at the suit of A. B. against the now plaintiff, for reward to the defendant; (I) and the defendant accepted such retainer and employment ; yet the defendant so negligently defended the said action, that thereby judgment by default was signed in the said action, by the said A. B. against the now plaintiff; and the said A. B. recovered in the said action, and the plaintiff otherwise incurred costs and ex- penses in relation thereto. 2. Against an Attorney for compromising contrary to the Directions of his Client, (m) Fray v. Vowles, 28 L. J. Q. B. 232 ; [1 El. & Bl. 839 ; Butler v. Knight, L. R. 2 Ex. 109.] {k) Godefroy v. Jay, 7 Bing. 413. see Slater v. Mayor &c. of Sunderland, 33 (/) [See Cavillaud v. Yale, 3 Cal. 108.] L. J. Q. B. 37 ; Butler v. Knight, 36 L. J. (m) An attorney has authority to eompro- Ex. 66 ; [L. R. 2 Ex. 109.] As to the power mise an action under his ordinary retainer to and duty of counsel in compromising a suit, bring or defend an action, unless he is ex- see Swinfen v. Swinfen, 25 L. J. C. P. 303 ; pressly forbidden by the client to do so. 18 C. B. 485; lb. 1 C. B. N. S. 364; 26 L. Chown v. Parrott, 32 L. J. C. P. 197; [14 J. C. P. 97; Chambers v. Mason, 5 C. B. N. C. B. N. S. 74;] Prestwich v. Polev, 34 S. 59; 28 L. J. C. P. 10; Strauss v. Fran- L. J. C. P. 189 ; [18 C. B. N. S. 806 ;] and cis, 35 L. J. Q. B. 133; [L. R. 1 Q. B. 379; 484 DECLARATIONS IN TORT. BAILEES. 3 Aqainst an Attorney for negligently conducting a Suit in Chancery commenced before he ivas retained, whereby the Bill was dismissed, Frankland v. Cole, 2 Cr. & J. 590. 4. Against an Attorney for disclosing to a Third Person a Defect in his Client's Title. Taylor v. Blacklow, 3 Bing. N. C. 235. 5 . . I a Person who was Plaintiff in a Former Action and his At- / for not releasing the Plaintiff (Defendant in the Former Action) out of Prison after satisfaction of Debt and Costs. Croyzer v. Silling & another, 4 B. & C. 26. 6. By the Sheriff against an Attorney for misrepresenting the Address of a Debtor, ivhereby the Sheriff levied on the Wrong Person. Childers v. Wooler, 29 L. J. Q. B. 129. BAILEES AND BAILMENTS. Obs. — A bailee of goods may in general be sued either in contract or tort for vio- lation of his implied promise or duty. See ante, part 1, p. 67 et seq. and p. 144, -where forms will be found which may easily be altered. See, also, ante, part 2, tit. " Agents " and " Attorneys." See Corbett v. Packington, 6 B. & C 268; Mostyn v. Coles, 31 L. J. Ex. 151; [7 H. & N. 872.] 1. Against a Hirer of Certain Carvings for Public Exhibition, for not taking care of them, (n) For that the plaintiff, at the request of the defendant, let to hire and deliv- ered to the defendant certain carvings in wood, to be by the defendant kept and exhibited for profit for a certain time ; yet the defendant took so little and such bad care of the said goods whilst he had them on hire, and used the same in so unreasonable and improper a manner, that the same became and were destroyed, injured, and deteriorated in value, and the plaintiff has been de- prived of gains and profits which he would otherwise have derived therefrom. 57-59 ; Holker v. Parker, 7 Cranch, Corbett v. Packington, 6 B. & C. 268 ; [Mos- « v. Rood, 6 McLean, 106; Shaw tyn v. Coles, 7 H. & N. 872; Bonneberg v. v. Kidder, 2 How. (X. Y.) Pr. 244; Bates Falkland Islands Co. 34 L. J. C. P. 34. In ■■y. 1 Sprague, 433; Derwort v. a case, where it appeared that the defendant 21 Conn. 245; Nolan v. Jackson, agreed for hire to store the plaintiff's car- 272 : I.i v. is v. Gamage, 1 Pick. 347 ; riages, and the carriages were put in a barn, Rosier, 23 Missou. 387; Filby the roof of which, being overloaded with V. Miller, -±:> Penn. St. 364; Vail v. Jackson, snow, fell in and crushed them, it was held 15 Vt. 314 : Smock v. Dude, 5 Rand. ( Va.) that the defendant was liable only in case he . Morrill, 57 Maine, 368.] knew, or might, by the use of ordinary care, (n) See a form for not taking care of goods have discovered, that the roof was unsafe. delivered to the defendant for that purpose, Moulton v. Phillips, 10 R. I. 218.] DECLARATIONS IN TORT. BAILEES. 485 2. Against the Hirer of a Steam Vessel for employing it for an Illegal Purpose, whereby the Master and Crew were imprisoned and the Vessel detained. Bleadon v. Rapallo, 3 M. & G. 116. 8. By the Oivner of Goods left in the Defendant'' s Mouse, for suffering them to be distrained and sold for Rent due from him. (o) See a form in the last edition of this work. 4. Against a Printer for pawning Paper delivered to him to print on. South v. White, 8 Dowl. 254. 5. Against a Person intrusted ivitli a Dog, for losing it. Mackenzie v. Cox, 9 C. & P. 632. 6. By a Hackney Driver against the Registrar for defacing his License. Hurrell v. Ellis, 2 C. B. 295. (p) 7. Against an Engraver for using for his own purposes Plates engraved by him for Plaintiff, (jf) Murray v. Heath, 1 B. & Ad. 804. 8. Against a Gratuitous Bailee or Lender. (r~) Wilson v. Brett, 11 M. & W. 113 ; Blakemore v. The Bristol & Exeter Ry. Co. 8 El. & Bl. 1035 ; 27 L. J. Q. B. 167 ; McCarthy v. Young, 6 H. & N. 329 ; 30 L. J. Ex. 227. (o) Goods in pledge for advances are not of a gratuitous bailee, see Jones on Bail- liable to be distrained for rent. See Swire v. ments ; Story on Bailments; Wilson v. Leecb, 18 C. B. N. S. 479; 34 L. J. C. P. Bett, 11 M. & W. 113 ; Coggs v. Bernard, 150. In an action by the pawnbroker, the Smith's L. Cas. The duties of a gratui- damages are the full value of the goods. lb. tous lender and borrower of a chattel are in See Gilman v. Elton, 3 B. & B. 75; Thomp- some degree correlative. " The lender must son v. Mashiter, 1 Bing. 283 ; Bandy v. Cart- be taken to lend for the purpose of a bene- wright, 8 Ex. 913-922, and Jex. 285, and ficial use by the borrower ; the borrower, note p. xi. ; Ralli v. Schofield, 36 L. J. C. P. therefore, is not responsible for reasonable (p) See Rogers v. Macnamara, 14 C. B. wear and tear; but he is for negligence, for 27 ; 23 L. J. C. P. 1. misuse, for gross want of skill in the use, (q) See Smith v. Mundy, 29 L. J. Q. B. above all, for anything that may be denned 172. as legal fraud. So, on the other hand, as (r) A gratuitous lender of a chattel is not the lender lends for beneficial use, he must liable for a personal injury sustained by the be responsible for the defects in the chattel person to whom it is lent, or by any other with reference to the use for which he knows person by his permission, arising from the the loan is accepted, of which he is aware, defective construction of the article, the and owing to which directly the borrower is lender not having notice of the defect, al- injured." Blakemore v. Bristol & Exeter Ry. though guilty of negligence in its con- Co. 8 El. & Bl. 1035; 27 L. J. Q. B. 167-170, struction. McCarthy v. Young, 30 L. J. where see a form ; [2 Kent, 573-577 ] Ex. 227 ; 6 H. & N. 329. As to the liability 486 DECLARATIONS IN TORT. CARRIAGES, COLLISION OF. 9. Against the Defendant for not delivering up a Ship's Register when required, (s) Wiley v. Crawford, 29 L. J. Q. B. 244; 30 L. J. Q. B. 319 ; [1 B. & S. 253.] ♦ BANK OF ENGLAND — BANKERS. (0 1. Against the Bank of England for not transferring Stock to the Plaintiff's Vendee and Pleas. Stracey v. Bank of England, 6 Bing. 754 ; Henley v. Mayor of Lyme, 5 Bing. 91-108; Sutton v. Bank of England, 1C.&T 193; Foster v. Bank of England, 15 L. J. Q. B. 212 ; Coles v. Bank of England, 10 Ad. & E. 437 ; Partridge v. Bauk of England, 15 L. J. Q. B. 395. 2. Against the East India Company for not transferring Stock. Gregory v. East India Company, 7 Q. B. 199 ; 14 L. J. Q. B. 226. (u) 3. For not providing for and honoring Customer s Check. dimming v. Shaw, 5 H. & N. 95 ; 29 L. J. Ex. 129. (a:) BOOKING-OFFICE KEEPER. Obs. — The duty of a booking-office keeper is to deliver to a carrier, and evidence must be given showing specifically a breach of that duty, and it is not suffi- cient to prove that the goods never reached their destination or were ac- counted for. Gilbart v. Dale, 5 Ad. & E. 543, where see a form. BRIBERY. See post, "Parliament." CARELESSNESS. See_pos/, "Negligence." CARRIAGES, COLLISION OF. See post, » Negligence.*' (s) See merchant shipping act, 17 & 18 England, [8 Q. B. 689;] 15 L. J. Q. B. 213. Vict. c. 104, s. 50. See, also, Coles v. The Bank of England, 10 (0 If the Bank of England refuse to trans- Ad. & E. 437 ; Partridge v. The Bank of Eng- fer 6tock, an action may be maintained land, 13 L. J. Q. B. 281 ; 15 L. J. Q. B. 395 ; against them. Henley v. Mayor of Lyme, Sloman v. The Bank of England, 14 L. J. 5 Bing. 108. So, if the Bank of England Ch. 226. See ante, 70 ; and Grant on Bank- make unreasonable delay in the passing of ers. a power of attorney to transfer stock, an («) This declaration was held bad for not action lies against them. Sutton v. Bank of averring the name of the proposed trans- England, 1 C. & P. 193. See a form for not feree. paying dividends, Foster v. The Bank of (x) Ante, pt. 1, 70, note (x). DECLARATIONS IN TORT. CARRIERS. 487 CARRIERS OF GOODS BY LAND. Obs. — See ante, part 1, 94. Carriers may be sued for the consequences of their neglect in regard to the carriage or delivery of goods either in contract or tort. [Gray J. in Medfield v. Boston, Hartford & Erie R. R. Co. 102 Mass. 555.] The leading distinction between contract and tort as regards carriers is, that in contract a promise to perform the duty required by the express or implied contract of the parties is laid in the declaration. In tort the decla- ration does not charge a promise, but after stating the delivery to defendant as a common carrier, alleges the breach of duty as in contract. The forms in contract may, therefore, be readily applied to tort. [See 1 Chitty PL 397- 399 ; Medfield v. Boston, Hartford & Erie R. R. Co. 102 Mass. 552, 554- 557. 1. Against a Carrier on his Common Law Liability, for losing Goods. (?/) For that the defendant was a common carrier (z) of goods for hire from A. to B., aud the plaintiff delivered to the defendant certain goods, and the defendant received the same as such carrier to be carried from A. to B. and there delivered by the defendant for the plaintiff for reward in that behalf; yet the defendant did not safely and securely, and within a reasonable time, carry and deliver the said goods for the plaintiff, and the said goods were lost to the defendant, (a) 2. Against a Common Carrier for Injury to Goods. (b~) For that the plaintiff delivered to the defendant, and the defendant received from the plaintiff certain goods to be carried by the defendants as common carriers from A. to B. and there delivered for the plaintiff for reward to the defendant ; yet the defendants so negligently carried the same, that by means thereof the said goods were damaged and spoiled. 3. Against a Railway Company for negligently injuring Cattle carried under Contract, (c) Carr v. The Lancashire & Yorkshire Ry. Co. 21 L. J. Ex. 261. {y) See forms, Coombs v. Bristol & Ex- Co. 30 L. J. Ex. 153; affirmed, 31 L. J. Ex. eter Ry. Co. 27 L. J. Ex. 269 ; 3 H. & N. 1 ; 299 ; [6 H. & N. 366 ; 7 lb. 950.] The plain- Metcalfe v. London, Brighton & South Coast tiff is entitled to recover the fall in price and By. Co. 4 C. B. N. S. 307 ; 27 L. J. C. P. deterioration in market value, and is not 205 ; [Sanquer v. London & South Western confined to the parts actually damaged. Ry. Co. 16 C. B. 163; Simons v. Great Collard v. South Eastern Ry. Co. 30 L. J. Western Ry. Co. 2 C. B. N. S. 620; Har- Ex. 394 ; [7 H. & N. 79,] where see a form, rison v. London & Brighton Ry. Co. 2 B. [See 1 Chitty Contr. (11th Am. ed.) 725; 2 & S. 122.] Form against a carrier from the lb. 1325, note (h).] London terminus of a railway for the loss (c) As to the liability of railway carriers of goods delivered to the railway company of cattle, see ante, pt. 1, 95, 96, Obs. ; Har- at B. Coats v. Chaplin, 3 Q. B. 483. rison v. London & Brighton Ry. Co. 31 (z) As to who are common carriers, see L. J. Ex. 113, in error; [2 B. & S. 122, 152;] ante, pt. 1, p. 99, note (b). Hodgman v. The West Midland Ry. Co. 33 (a) If there be any reason to suppose that L. J. Q. B. 233 ; 35 lb. Q. B. 85 ; [5 B. & the goods were lost by a misdelivery through S. 173; 6 B. & S. 560;] Gregory v. West the wilful negligence of the defendant, a Midland Ry. Co. 35 L.J. Ex. 155 ; [2 H. & C. count in trover should be added. Wyld v. 944 ;] Allday v. Great Western Rv. Co. 34 L. Pickford, 8 M. & W. 443 ; 10 L. J. Ex. 382 ; J. Q. B. 5 ; [5 B. & S. 903 ;] Robinson v. South Stephenson v. Hart, 4 Bing. 476 See Dev- Western Ry. Co. 34 L. J. C. P. 234; Rob- ereux v. Baillay, 2 B. & Aid. 702 ; [1 Chitty inson v. Great Western Ry. Co. 35 L. J. C. PI. 174, and notes, 180.] P. 120 ; [19 C. B. N. S. 51 ; I Chitty Contr. (b) Form, Behrens v. Great Northern Ry. (11th Am. ed.) 689, note (a), 721, 722 ; Rix- DECLARATIONS IN TORT. CARRIERS. [oa. Against a Company for Negligence in receiving a Horse. Hodgman v. West Midland By. Co. 33 L. J. Q. B. 233.] 4. Against a Common Carrier for not delivering Goods within a Reasonable Time. ((T) I " tr that the plaintiff delivered to the defendant, then being a common carrier of g Is for hire, and the defendant received from the plaintiff goods of the plaintiff, to be carried by the defendant as such common carrier from A. to B. and there to be delivered by the defendant for the plaintiff for reward to the defendant : yet the defendant neglected to deliver the same within a reasonable time, whereby the plaintiff was deprived of the use of the same, and they were of much less value. 5. Against a Carrier for not carrying and delivering Goods in Time for a Certain Market, (e) For that the defendant was a common carrier of goods for hire, and the plaintiff delivered to the defendant, and the defendant received from the plain- tiff as such carrier certain goods to be carried from A. to B. and there deliv- ered by the defendant for the plaintiff in time for the market on the day of , a. D. , for reward to the defendant; yet the defendant did not deliver the said goods for the plaintiff in time for the said market, whereby the plaintiff lost the profits that he would have otherwise have made, and the said goods were deteriorated and injured, and greatly diminished in value, and the plaintiff was put to cost in attending the said market to sell the said goods. 6. Against a Carrier for not talcing care of Goods after the Con- signee had refused to accept them. Hudson v. Baxendale, 2 H. & N. 575 ; 27 L. J. Ex. 93. (/) 7. Against a Common Carrier for refusing to carry Goods. For that the defendant was a common carrier of goods for hire from A. to B., and the plaintiff tendered at the defendant's place of business at a proper . Smith. 52 N. H. 355, 363, and cases ble time, see Great Northern Ry. Co. v. Lake Shore & Michigan Southern &c. Tavlor, 35 L. J. C. P. 210; [L. R. 1 C. P. K. R. Co. r. Perkins, 25 Mich. 329; Michi- 385; ante, 103, note (h).] pan Southern & Northern Indiana R. R. v. (e) This form is in contract, and was McDonogh, 21 Midi. 165; Clarke v. Roch- accidentally omitted from part 1. Other rater & Syracuse U.K. Co. 14 N. Y. 570; forms, Pickford v. The Grand Junction Rv. Hull v. Renfro,3 Mete. (Ky.) 51 ; Smithy. Co. 12 M. & W. 766; Walker v. York & N. JI. S \. i:. K. Co. 12 Allen, 531 ; Ameri- North Midland Rv. Co. 23 L. J. Q. B. 73; »*n Express Co. v. Sands, 55 Penn. St. 140; [2 El. & Bl. 750;]" White v. Great Western Louisville &c. It. R. Co. ». Hedger, 13 Am. Ry. Co. 2 C. B. N. S. 7; 26 L. J. C. P. Beg. N. S. U5, and note ad finem; 158; [Hughes v. Great Western Ry. Co. 14 ;! ' ' ■ W. I!. R. Co. L. R.7 C. P. 655; C. B. 637.1 Jfcj «•<* "• l ( ;':":'"» & N. W. Ry. Co. 7 H. (/) There is not any rule of law com- i / i.'' ' ' w '■' ' '^ 3 '1 pelling the carrier to give notice to the con- (") ! \Vise v. The Great Western signor that the consignee refuses to receive r , "; - ' , L : ;'■ Kx - 258 ; 1 H. «& N. 63; the goods. He is merely bound to do what Baphae] v. I lckford, 5 M. & G. 551. See, is reasonable in the particular circumstances. also, ante, pt. 1, p. 103, form 10, and notes. Hudson v. Baxendale, 2 H. & N. 575; 27 L. and as to duty to carry within a reasona- J. Ex. 93; [ante, 107, note (/>).] DECLARATIONS IN TORT. CARRIERS. 489 time certain goods of the plaintiff to be carried by the defendant, (g) for reward, from A. to B., and was then ready and willing, and offered to pay to the de- fendant proper reward in that behalf; yet the defendant, although he had the means of carrying the said goods, would not receive and carry the same. [7a. For refusing to carry a Horse unless the Value was declared and insured. Robinson v. South Western Ry. Co. 19 C. B. N. S. 51. See Cranch v. Great Northern Ry. Co. 11 Ex. 742.] CARRIERS OF GOODS BY WATER. Obs. — See ante, Part 1, p. 106. 1. Against a Ship-owner for the Loss of Goods. (Ji) For that the plaintiff delivered to the defendant, who received the same, certain goods to be carried in a ship of the defendant from A. to B. and there delivered to the plaintiff, for freight payable by the plaintiff to the defendant, certain perils and casualties only excepted ; yet the defendant, although not prevented by any of the said excepted perils and casualties, and a reasonable time in that behalf elapsed, did not carry and deliver the said goods as afore- said, and the same were lost to the plaintiff. 2. Against a Ship-owner for damaging Goods, (i) Alston v. Herring, 25 L. J. Ex. 177 ; [11 Ex. 822.] (g) Actual tender of money not necessary, a readiness and willingness is sufficient. Pickford v. The Grand Junction Ry. Co. 8 M. & W. 373; 9 Dowl. 766, where see a form. See Crouch v. The Great Northern Ry. Co. 9 Ex. 556 ; 23 L. J. Ex. 148, where it was held that the defendants were not en- titled to charge the plaintiff more than they did others. See, also, Johnson v. Midland Ry- Co. 4 Ex. 267. Common carriers are hound to carry goods tendered to them to be carried if accompanied with the proper charge, and they have no right to insist upon the sender signing unreasonable con- ditions, neither have they a right to refuse goods tendered with the proper price by one person, when at the same time they receive goods of the same class from another per- son. Garton v. Bristol & Exeter Ry. Co. 30 L. J. Q. B. 273; [1 B. & S. 112,] "where see a form. See, also, Baxendale v. The Eastern Counties Rv. Co. 4 C. B. N. S. 63 ; 27 L. J. C. P. 137 ; Crouch v. The Great Northern Ry. Co. 11 Ex. 742 ; 25 L. J. Ex. 137 ; Sutton v. Great Western Ry. Co. 35 L. J. Ex. 18; [1 Chitty Contr. (11th Am. ed.) 684, 685, and cases in notes; 3 H. & C. 800 ; L. R. 2 Ap. Ca. 226 ;] Sutton v. South Eastern Ry. Co. [L. R, 1 Ex. 32 ;] Baxen- dale v. South Western Rv. Co. [L. R. 1 Ex. 137 ; Pickford v. Grand Junction Ry. Co. 8 M. & W. 372; Hales v. London & North Western Ry. Co. 4 B. & S. 66 ; Padding- ton v. South Eastern Ry. Co. 5 C. B. N. S. Ill ; Branley v. South Eastern Ry. Co. 12 C. B. N. S. 63.] (h) See forms, Newberry v. Colvin, 7 Bing. 190; 1 Cr. & J. 192; Morewood v. Pollock, 1 El. & Bl. 743; 22 L. J. Q. B. 250. On a bill of lading, Colvin v. New- berry, 8 B. & C. 166. Where the bill of lad- ing described the goods as " one box con- taining about 248 ounces of gold dust," it was decided that it was not a declaration of the true nature and value, within the mer- chant shipping act, 17 & 18 Vict. c. 104, s. 503, so as to render the ship-owner liable for a loss without his actual fault or privity. Williams v. The African Steam Ship Com- pany, 1 H. & N. 300 ; 26 L. J. Ex. 69. See Gibbs v. Potter, 10 M. & W. 70; 11 L. J. Ex. 376. (i) This form may easily be framed by reference to the last form. Damage done by rats is not within any of the exceptions in the bill of lading. Laveroni v. Drury, 8 Ex. 166; 22 L. J. Ex. 2; Kay v. Wheeler, [L. R. 2 C. P. 302 ;] 36 L. J. C. P. 180. See Dale i'. Hall, 1 Wils. 281. 490 DECLARATIONS IX TORT. CARRIERS. 3. F t delivering to Plaintiff '' s Assignees. Jones r. Jones, 8 M. & W. 431 ; 10 L. J. Ex. 481. (A) 4. 4 1 in*< Ship-owner for Negligent Stowage. (I) For that the plaintiff delivered to the defendant, who received the same, certain goods to he properly stowed in the ship of the defendant, and safely carried in the said ship from A. to B. and there delivered to the plaintiff for freight, payable bv the plaintiff to the defendant, certain perils and casualties onlv excepted ; yet the defendant so negligently stowed the said goods that the same were thereby, and not by any of the said excepted perils and casual- greatly damaged. [Like count. Anderson v. Chapman, 5 M. & TV. 483. Count for damage done to goods by stowing them on deck. Sargent v. Morris. 3 B. & Aid. 277. For negligence in loading goods on board under special contract. Cooke v. Wilson. 1 C B. X. S. 153. T7ie like on a contract made abroad. Cohen v. Gaudet. 3 F. & F. 455.] 5. Against the Defendant for shipping Dangerous Goods without giving Notice thereof. Qui) Brass v. Maitland. 6 El. & Bl. 474; 26 L. J. Q. B. 49 ; [Williams v. East India Co. 3 East. 192.] 6. Against the Owner of a Ferry for Injury to Goods. Walker v. Jackson, 10 M. & W. 161. (n) [7. Against the Master of a Steam-tug for Negligence in towing the Plaintiff's Ship. That in consideration that the plaintiff would employ the defendant with a 6team-tug of the defendant to tow a certain ship of the plaintiff from the port (k) See, in this case, a plea of stoppage in P. I. Forms, Major v. White, 7 C. & P. 41 ; Anderson v. Chapman, 5 M. & W. 483 ; 7 (/) See a form, Hutchinson v. Guion, 5 C. Dowl. S22. B. N. S. 14'.< : 28 L. J. C. P. 63. The mas- (m) Bv s. 329 of the merchant shipping ter of a ship is not liable to the owner of act. the carrying of dangerous goods is pro- goods sent to be shipped on board a general hibited without due notice. Brass v. Mait- !br damage done to them for the neg- land, 6 El. & Bl. 741 ; 26 L. J. Q. B. 49. And of a stevedore appointed by it is the duty of the person shipping to gire the charterer, such stevedore not being a information. Alston v. Herring, 1 1 Ex. 8'22 ; _ont of the master. Nor is" he 25 L. J. Ex. 177 ; Farrant v. Barnes, 31 L. J. of the stevedore, though it C. P. 137; [11 C. B. N. S. 553.] See forms. by the charter-partv that the Hutchinson v. Guion, 28 L. J. C. P. 63 ; [5 U be paid by and act under the C. B. N. S. 149.] See Williams v. East India ••r's orders, except such acts are done Company, 3 East, 192. By 8 Yict. c. 20, s. the execution of the master's orders. 105. a penaltv is imyiosed upon anv pe Blail - - L. J. C. P. 333; knowindv sendins dangerous goods" bv rail- affin ror, 29 L. J. C. P. 212; [S. C. way without distinctly marking their nature 6 t G I! :] Sack v. Ford, 13 C. B. on'the outside of the package. As to pas- : 32 L. J. C. P. 12 j A Jo- African senger ships, see 18 & 19 Vict. c. 119, s. 29. 1 . ■ Lamzed, 35 L. J. C. P. 145; (n) See a form against the master of a 3* ' ;] Sandeman v. Scurr, 36 barge who deviated "from his course, show- *-■ J ■ R. - Q- B. 86;] Phillips in? that a storm arose, and that the plain v. Clarke, 2 C. 15. X. S. 156 ; 26 L. J. C. P. tiff's goods were injured, &c. Davis v. Gar- ; The Helene, L. R. 1C.R; 35 L. J. C. rett, 6"Bine. 716. DECLARATIONS IN TORT. CARRIERS. 491 of out to sea, for reward to the defendant, the defendant promised the plaintiff so to tow the said ship in a careful, skilful, and proper manner ; and the plaintiff employed the defendant, and the defendant accepted and entered upon the said employment, for the purpose and upon the terms aforesaid, and all conditions were performed, and all things happened, and all times elapsed, necessary to entitle the plaintiff to have the said ship so towed by the defend- ant in a careful, skilful, and proper manner; yet the defendant towed the said ship in a negligent, unskilful, and improper manner, whereby the said ship became and was stranded and damaged. A like count. Symonds v. Pain, 6 H. & N. 709.] CARRIERS OF PASSENGERS BY LAND. 1. For refusing to carry. For that the defendants were common carriers of passengers for hire from A. to B., and the plaintiff, at a reasonable time and place, and in a fit and proper state, tendered himself to be carried as a passenger from A. to B. aforesaid for hire, and was ready and willing, and offered to pay the said hire ; and the defendants had the means of carrying the plaintiff, and were able to have done so, yet refused to, and did not, nor would carry the plaintiff. [2. Against a Raihvay Company for Delay in a Train. That the defendants were carriers of passengers in carriages on a railway from to , for reward to the defendants, and thereupon, on the day of , A. d. , in consideration that the plaintiff, at the request of the defendants, would pay them a sum of money as and for the price of their carrying the plaintiff as a passenger in one of the said carriages from to aforesaid, by a train which the defendants advertised in their published train bill, and represented to the plaintiff to be a train that would start from to aforesaid at o'clock in the [afternoon], and arrive at aforesaid at o'clock in the [afternoon] of the said day, the defendants promised the plaintiff that they would use reasonable care and diligence that the said trains should start and arrive at the respective times aforesaid ; and the plaintiff accordingly paid the defendants the said sum of money for the purpose and on the terms aforesaid, and became such passenger to be so carried by the defendants as aforesaid by the said train ; yet the defendants did not use reasonable care and diligence that the said train should start and arrive at the respective times aforesaid, and for want of such care and dili- gence the said train started from aforesaid and arrived at aforesaid respectively at much later times than the respective times aforesaid, whereby the plaintiff was delayed and put to expense and inconvenience, and was pre- vented from attending to his business at aforesaid, as he otherwise would have done. A like count. Hamlin v. Great Northern Ry. Co. 1 H. & N. 408 ; (o) and see Hurst v. Great Western Ry. Co. 19 C. B. N. S. 310.] (o) This form was in contract, but may tion for loss of time, as a part of the dam- easily be framed in tort. [As to compensa- ages, in such case, see Ward v. Vanderbilt, 492 DECLARATIONS IN TORT. CARRIERS. 3. For Injury to a Passenger. (^) For that the defendants were common carriers of passengers for hire from A. to B. and received the plaintiff as a passenger to be carried from A. to B. for hire ; yet the defendants so negligently conducted themselves in and about carrying the plaintiff, that by reason thereof he was greatly and permanently injured, and has been put to expense in endeavoring to be cured of his said injuries and prevented for a long time from attending to his necessary affairs and business, and deprived of the gains and profits he would otherwise have derived therefrom. 4. Against a Carrier for Negligence, by the Executor of Deceased Passenger, under 9 & 10 Vict. c. 93. (g) A. B., executor of the last will and testament of C. D., deceased, by his attorney sues . For that the defendants were common carriers of passen- gers for hire from E. to F., and received C. D., since deceased, to be carried from E. to F. for hire ; yet the defendants so negligently conducted them- selves in and about carrying the said C. D., that by reason of such negligence the said C. D. was injured, and died within twelve calendar months next before this suit ; and the plaintiff, as executor as aforesaid, for the benefit of [state follow, whether wife or children (r)] of the said C D. 4 N. Y. Court of App. Dec. App. 521.] For not running an advertised train, sec Denton v. Great Northern Ry. Co. 5 El. & Bl. 860; 25 L. J. Q. B. 129. "It was held in Kurst v. The Great Western Ry. Co. 19 C. B. N. S. 310, that the mere taking of a ticket for a journey by railway does not amount to a contract on the part of the railway company, or impose upon them a duty, to have a train ready to start at the time at which the pas- Benger is led to expect it. This subject was discussed at considerable length in Gordon v. Manchester & Lawrence R. R. 52 N. H. 596, and the liability of a railroad company for failure in the departure and arrival of their cars at the times indicated in their time- tables is based upon the ground of neg- ligence and not upon an absolute obligation to conform to their times, irrespective of cir- cumstances.] (//) See Carpue v. London & Brighton 5 Q. B. 747; [Withers v. North Kent Ry. Co. 27 L. J. Ex. 417; Readhead >-. Midland Ry. Co. 36 L. J. Q. B. 181.] Del a coach proprietor for negligent driving, Curtis v. Drinkwater, 2 B. &'Ad. 169; against omnibus proprietor, Brien v. net, 8 C. & P. 724; [against railway company, Martin v. Great Northern Ry. Co. 16 C. B. 179; against the owner of a steamer, Dalyell v. Tyrer, Bl., Bl. & El. 899.] See post, " N< gligence." (q) Or, " administrator," as the case may be. (r) 9 & 10 Vict. c. 93, s. 2, directs for whose benefit the action is to be brought, and by s. 4, full particulars of the persons for whom this action is brought, and of the nature of the claim, must be delivered with the declaration. By 27 & 28 Vict. c. 95, s. 1, if there shall be no executor or adminis- trator of the deceased, or there being one, no action shall have been brought in his name within six calendar months after the death, an action may be brought in the name or names of all or any of the persons (if more than one) for whose benefit the action would have been if brought by an executor or administrator. By s. 2, money may be paid into court in one sum without regard to its division. [It has been held that, at com- mon law, the death of a human being is not the ground of an action for damages. Carey v. Berkshire Railroad, 1 Cush. 475 ; Eden v. Lexington & Frankfort Railroad, 14 B. Mon. 204 ; Connecticut Mut. Life Ins. Co. v. New York & New Haven Railroad, 25 Conn. 265 ; Hubgh v. New Orleans & C. R. R. 6 La. Ann. 495 ; Worley v. Cincin- cinnati, Hamilton & Dayton R. R. 1 Handy, 481 ; Palfrey v. Portland, Saco & Ports- mouth R. R. Co. 4 Allen, 56 ; Osborn v. Gil- lett, L. R. 8 Ex. 88; Hyatt v. Adams, 16 Mich. 180 ; Richardson v. New York Central R. R. Co. 98 Mass. 89 ; Nickerson v. Har- riman, 38 Maine, 279 ; State v. Railway 58 Maine, 1 78 ; Wyatt v. Williams, 43 N. H. 102, and cases cited, 105, 106 ; State v. Man- chester & Lawrence R. R. 52 N. H. 528, 548.] DECLARATIONS IN TORT. CARRIERS. 493 [5. Against a Railway Company for not running a Train, as adver- tised by the Time Tables. Denton v. Great Northern Ry. Co. 5 El. & Bl. 860.] 6. Against a Carrier for Loss of Luggage, (s) For that the defendants were common carriers of passengers and their lug- gage for hire, and the plaintiff became, and was received by the defendants as a passenger, with his luggage, to be carried from A. to B. for hire ; yet the defendants did not use due and proper care in carrying the plaintiff's luggage, and thereby the same was lost. [Baggage of troops. Declaration for negligence, and pleas. Martin v. The Great Indian &c. By. Co. L. R. 3 Ex. 9.] 7. Against a Cabman for losing the Luggage of his Fare. Ross v. Hill, 2 C. B. 877 ; 15 L. J. C. P. 182. (s) Forms, Marshall v. York, Newcastle &c, Rv. 11 C. B. 655; 21 L. J. C. P. 34; Edwell v. Grand Junction Ry. 5 M. & W. 67. A railway company, as common car- riers of passengers and their luggage, are bound, on the arrival of a train, to deliver a passenger's luggage into a carriage to be carried to its destination, if required so to do, and if such is their usual practice. Butcher v. London & South Western Ry. Co. 16 C. B. 13 ; 24 L. J. C. P. 137 ; Richards v. London & South Coast Ry. Co. 7 C. B. 839; 18 L. J. C. P. 251 ; Munster v. South Eastern Ry. Co. 27 L. J. C. P. 308 ; [4 C. B. N. S. 676. Common carriers of passengers and their luggage, are bound to deliver to each passenger, at the end of his journey, his trunk or luggage. The passenger is not obliged to expose his person in a crowd, or endanger his safety, in the attempt to desig- nate or claim his property. Cole v. Good- win, 19 Wend. 251 ; Hollister v. Newton, 19 Wend. 234 ; Bomar v. Maxwell, 9 Humph. 621. These carriers are liable for the lug- gage until its safe delivery to the owner; its delivery upon a forged order will not dis- charge them. Powell v. Myers, 26 Wend. 591; Trowell w.Youmans, 5 Strobh. 67. It must be luggage strictly, i. e. such articles of necessity and personal convenience as are usually carried by travellers. Pardee v. Drew, 25 Wend. 459. The goods or lug- gage should, however, be demanded within a reasonable time after their arrival at their place of destination. Powell v. Myers, 26 Wend. 591 ; Goold v. Chapin, 10 Barb. 612.] If a passenger by a third-class train carry merchandise packed up with his luggage, the company are not responsible if it is lost. Cahill v. London & North Western Ry. Co. 30 L. J. C P. 289; 10 C. B. N. S. 154; Munster v. South Eastern Ry. Co. 4 C. B. N. S. 676; 27 L. J. C. P. 308. Where a stipulation is made that by excursion trains ■he company shall not carry luggage, or that it shall be at the passenger's risk, they are not liable. See Rumsev v. North East- ern Ry. Co. 32 L. J. C. P. 224 ; Stewart v. London & North Western Ry. Co. 33 L. J. Ex. 199 ; [3 H. & C. 135.] But if it be so packed as to be visible, and the company do not tnake any charge for the carriage, they will lie responsible for the loss. Great North- ern Ry. Co. v. Shepherd, 8 Ex. 30; 21 L. J. Ex. 114. See Great Western Rv. Co. v. Goodman, 21 L. J. C. P. 197. See \Villiams v. Great Western Ry. Co. 10 Ex. 15. Where, by a traffic arrangement between two com- panies, passengers are booked through, the contract is an entire contract between the passenger and the company issuing the ticket. " Mytton v. Midland Ry. Co. 28 L. J. Ex. 385 ; [4 H. & N. 615 ; ante, 99, and note (d) ; 1 Chitty Contr. (11th Am. ed.) 704, and note (d) and cases cited ; Martin B. in Shep- herd v. Bristol & Exeter Ry. Co. L. R. 3 Ex. 195; Barter v. Wheeler, 49 N. H. 9, 25.] See a form against stage-coach proprietors, Miles v. Cattle, 6 Bing. 743. As to what is "a loss," see Hearn v. London & North Western Ry. Co. 24 L. J. Ex. 180. Against the same for loss of a parcel not luggage, Macklin v. Waterhouse, 5 Bing. 212. Refer- ence should be had to the company's partic- ular act, as provisions as to luggage may sometimes be found. [As to the articles in- cluded in the term luggage or baggage, see 1 Chitty Contr. (11th Am. ed.) 698, and note (h) ; Phelps v. London & North Western Ry. Co. 19 C. B. N. S. 321 ; Merrill v. Grin- nell, 30 N. Y. 594; Dibble v. Brown, 12 Geo. 217; Hickox v. Naugatuck R. R. 31 Conn. 281 ; Smith v. Boston & Maine R. R 44 N. H. 325 ; Cincinnati &c. Air Line R. R. v. Marcus, 38 111. 219; 111. C. R. R. v. Copeland, 24 111. 332 ; Mississippi C. R. R. v. Kennedy, 41 Miss. 671. Documents and bank-notes carried by an attorney attending a county court. Phelps v. London & North Western Ry. Co. 34 L. J. C. P. 259 ; 19 C. B. N. S. 321.] 494 DECLARATIONS IN TORT. COMMISSIONERS, ETC. CARRIERS OF PASSENGERS BY WATER. 1. For refusing to carry Passengers. BeDett v. Peninsular & Oriental Steam Boat Co. 6 C. B. 775. 2. For Loss of a Passenger's Luggage. Wilton v. Royal Atlantic Mail Steam Co. [10 C. B. N. S. 453;] 30 L. J C P. 309. (0 CARRIERS OF MESSAGES. [Against an Electric Telegraph Company for not transmitting a Mes- sage correctly. That the defendants carried on the business of transmitting messages by tel- egraph, for reward to the defendants ; and thereupon, in consideration that the plaintiff would pay to the defendants shillings, the defendants promised the plaintiff that they would transmit correctly for the plaintiff from to [the master of a ship then lying at ] the message following, that is to say, ["Proceed to Hull direct"]; and the plaintiff paid to the defendants the said shillings, and all conditions were performed, and all things hap- pened, and all times elapsed, necessary to entitle the plaintiff to have the said message correctly transmitted by the defendants as aforesaid ; yet the defend- ants did not correctly transmit to the master of the said ship the said message as aforesaid, and transmitted to him another and different message, in the terms following: ["Proceed to Southampton direct"], whereby [the said master of the said ship proceeded directly with the said ship to Southampton instead of to Hull, as he would otherwise have done, and the plaintiff lost the ben- efit of the said ship proceeding to Hull in pursuance of the said message, and incurred great expense by reason of the said ship so proceeding to Southamp- ton as aforesaid]. A like count. MacAndrew v. Electric Telegraph Co. 17 C. B. 3. Count for injury done to telegraphic cable by negligent navigation. Sub- marine Telegraph Co. v. Dickson, 15 C. B. N. S. 759.] COLLISION. See " Negligence, "post. COMMISSIONERS OF PUBLIC WORKS. Obs. — The law as to the liability of trustees of public works, who do not receive any personal benefit for acting as trustees, has been lately settled and thor- oughly considered in the case of The Mersey Docks & Harbor Board v. Gibbs, [11 H. L. Cas. 686 ; L. R. 1 H. L. 83,] and The Mersey Docks & Harbor Board v. Penhallow, 35 L. J. Ex. 225 ; [3 H. & C. 1035;] which have ilccided that trustees appointed by statute for public purposes, having power (0 See Pianciani v. London & South teur v. London & South Western Ry. Co. W-tern Ry. Co. 18 C. B. 226; [Le Con- L. R. 1 Q. B. 54.] DECLARATIONS IN TORT. COMMISSIONERS, ETC. 495 Obs. to levy tolls, but not deriving any personal benefit, are liable in their corpo- rate capacity for damage sustained by reason of the default of their servants or agents to the same extent as absolute owners levying tolls for their own profit, although there is no improper conduct on the part of the truster;-. Sec the opinion of the judges. in the above case, delivered by Mr. Justice Black- burn, where all the cases are reviewed. [See Duncan v. Find later, 6 CI. & Fin. (Am. ed.) 894, and note (1), and cases both English and American there cited ; Stanton v. Haverill Bridge Co. 14 Am. Law Keg. (N. S.) 4G9; Winch v. Conservators of the Thames, L. R. 9 C. P. 378 ; Oliver v. Worcester, 102 Mass. 489, 500, 501 ; Mayor &c. of Lyme Regis, 2 CI. & Fin. (Am. ed.) 331, and note (1) ; Water Co. v. Ware, 16 Wallace, 566 ; Coe v. Wise, L. R. 1 Q. B. 711 ; Collins v. Middle Level Commissioners, L. R. 4 C. P. 279 ; Bloom- ington v. Bay, 42 111. 503 ; Robbins v. Chicago, 4 Wallace, 657 ; Nebraska City v. Campbell, 2 Black, 590; VVeightman v. Washington, 1 Black, 39; Richmond v. Long, 17 Grattan (Va.), 375; Carlton v. Franconia Iron & Steel Co. 99 Mass. 216, 218. Whether trustees may repay themselves, out of the trust funds, for damages recovered of them, in consequence of injury done to third persons, while acting in the due discharge of their duties as such trustees, see Duncan v. Findlater, 6 CI. & Fin. (Am. ed.) 894, note (2).] But if the trustees employ fit and proper contractors (not servants) to execute their works, and injury accrues by reason of the negligence of such contract- ors and their servants, and without any interference on the part of the trus- tees, the contractor and his servants will be liable, and not the trustees. Holliday v. St. Leonard's, Shoreditch, 11 C. B. N. S. (Am. ed.) 192 ; [and note ad jinem, and cases cited ;] 30 L. J. C. P. 361 ; Jones v. Bird, 5 B. & Aid. 837 ; Clothier v. Webster, 31 L. J. C. P. 317. See Whitehouse v. Fel- lowes, 30 L. J. C.P. 305; [2 Chitty Contr. (11th Am. ed.) 861, and note (£ 4 ), 862. and notes (tfi) and (£•«), 863, note (k s ) ; Cuff v. Newark & New York R. R. Co. 6 Vroom, 17 ; Kelly v. New York, 11 N. Y. 432 ; Pack v. New York, 8 N. Y. 222 ; Hilliard v. Richardson, 3 Gray, 349 ; Reedie v. London & N. W. Ry. Co. 4 Ex. 244, 256 ; Forsyth v. Hooper, 11 Allen, 419 ; Blake v. Fer- ris, 1 Selden, 48 ; Painter v. Pittsburgh, 46 Penn. St. 213 ; Eaton v. Euro- pean & N. A.R. R. Co. 59 Maine, 520, 531 ; Pickard v. Smith, 10 C. B. N. S. 470, 480 ; Kellogg v. Payne, 21 Iowa, 575 ; Schwartz v. Gilmore, 45 111. 455 ; Brackett v. Lub'ke, 4 Allen, 138, 140 ; Sadler v. Henlock, 4 El. & Bl. 570, 578.] For forms, see post, " Negligence." [Counts against Corporate Bodies, Commissioners, Trustees, $c. of Public Works, for Negligence. Against the trustees of a harbor for negligence in allowing it to become choked with mud ; Metcalfe v. Hetherington, 11 Ex. 257 ; Gibbs v. Trustees of Liverpool Docks, 1 H. & N. 439 ; 3 lb. 164 ; L. R. 1 H. L. 93 ; Thomp- son v. North Eastern Ry. Co. 2 B. & S. 106 ; Penhallow v. Mersey Docks Board, L. R. 1 H. L. 93 ; against the trustees of a canal for keeping a dan- gerous bridge, whereby a person fell in and was drowned ; Manley v. St. Helen's Canal Co. 2 H. & N. 840 ; against commissioners of a canal naviga- tion for want of repair in a lock, whereby the plaintiff's barge was delayed ; Walker v. Goe, 3 H. & N. 395 ; against commissioners of sewers for negli- gence in constructing a sewer, whereby the plaintiff's house was injured ; Jones v. Bird, 5 B. & Aid. 837 ; Ruck v. Williams, 3 H. & N. 308 ; Grocers' Com- pany v. Doune, 3 Bing. N. C. 34 ; against commissioners under an act of parliament for the making of certain navigation works, for negligence, where- by the plaintiff's land was flooded; Allen v. Hay ward, 7 Q. B. 960; against the trustees of a turnpike road for negligently maintaining the drains of the road; Whitehouse v. Fellowes, 10 C. B. N. S. 765.] 496 DECLARATIONS IN TORT. COMMON OF PASTURE. COMMON OF PASTURE. Obs. Common of pasture is a right of feeding beasts on the land of another, and it is either appendant, appurtenant, or in gross. Co. Litt. 122 ; 2 Bl. Com. Com, Dig.; and Bac. Abr. "Commons;" Musgrave v. Cave, Willes Rep. 819. i mmon appendant is a right belonging to the owners or occupiers of arable land to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough or such as manure the ground. 1 Bl. Com. 32, 33. It must, at com- mon law, have existed from time immemorial. Selw. N. P. Common appurh nant arises from no connection of tenure, nor from any absolute necessity, but may be annexed to lands in other lordships, or extend to other beasts besides such as are generally commonable, as hogs, goats, or the like, which neither plough nor manure the ground. This, not arising from any natural propriety or necessity like common appendant, is therefore not of gen- eral rijit, but can only be claimed by immemorial usage and prescription, which the law esteems sufficient proof of a special grant or agreement for this purpose. 1 Bl. Com. 33 ; Selw. N. P. Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person, being granted to him and his heirs by deed ; or it may be claimed by prescriptive right, as by a parson of a church, or the like corporation sole. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor. 1 Bl. Com. 34 ; Selw. N. P. It maybe granted for all manner, and for an unlimited, or for a certain number of, cattle. lb. It is not necessary in pleading to distinguish between these different sorts of common. Musgrave v. Cave, Willes Rep. 319. By the prescription act, 2 & 3 W. 4, c. 71, s. 1, it is enacted, " That no claim which may be lawfully made at the common law by custom, prescription, or grant to any right of common or other profit or benefit, to be taken and enjoyed from or upon any land (except such matters and things as are herein specially provided for, and except tithes, rent, and services), shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated, or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years ; but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated, and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty gears, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing." The proof of the right lies upon the person claiming it, and evidence of enjoy- ment for twenty-nine years will not satisfy the former part of this clause. Bailey v. Appleyard, 8 Ad. & E. 161-778. And where A. claims a right of common over a crown forest, in respect of an allotment of waste land made to him under an inclosure act in 1810, and relies on an uninterrupted enjoy- ment lor thirty years, lie may be defeated by showing that the enjoyment of the righl commenced in 1810, and that the grant of any right over the forest was made absolutely void by a statute previous to 1810. Mill v. The Com- missioners of New Forest, 18 C. B. 60; 25 L. J. C. P. 212. And in that case it was doubted whether the statute applied to a case in which the right claimed could not have been legally granted, by reason of an express prohi- bition contained in a statute. lb. A mere intermission of the user will not amount to a hostile interruption suffi- cienl to defeal a claimant. Carr v. Foster, 3 Q. B. 581 ; 11 L. J. Q. B. 284. See Bailey v. Appleyard, 8 Ad. & E. 165. See Addison on Torts, 106, 107; and s. I of the act, which is set out at length, ante, "Ancient Lights," p. 479. A declaration by a deceased tenant of a farm, unaccompanying an act, that he is not entitled to common of pasture in respect of the farm, is not admissible DECLARATIONS IN TOKT. COMMON OF PASTURE. 497 Obs. evidence against the reversioner. Fapendick v. Bridgwater, 5 El. & Bl. 166 ; 24 L. J. Q. B. 289. The 4th, 5th, and 7th sections of the act have been already cited at length, ante, Obs. p. 479. The venue is local. For obstructing the Plaintiff's Right of Common, (u) For that the plaintiff was possessed of a messuage and land, (x) and by reason thereof (y) was entitled to have (z) common of pasture for all his com- monable cattle, levant and couchant, (a) in and upon bis said messuage and land in a certain common, situate at , called , every year, and at all times of the year, as to the said messuage and land belonging and appertaining. And the defendant on divers days and times disturbed and hindered the plain- tiff in his enjoyment and rightful exercise of his said right of common, by wrongfully and injuriously (b) [erecting and continuing fences in and upon the said common, and thereby inclosing a part of the same] [or by digging up and subverting the soil of the said common, and carrying away the same], [or by planting and placing, and continuing, in the said soil of the said common, divers trees and shrubs], [or by putting and placing a large number of sheep in and upon the said waste and common, and there keeping the same for a long time], whereby the plaintiff was prevented from having the use and enjoyment of the said waste and common of pasture, as he otherwise might have had. (c) (m) Form for impoverishing common by removing the manure of the cuttle. Pindar v. Wadsworth, 2 East, 154. By putting on cattle. Bowen v. Jenkin, 6 Ad. & E. 911 ; Nichols v. Chapman, 29 L. J. Ex. 461 ; [5 H. & N. 643.] (x) Proof of possession of land will suf- fice, Bicketts v. Salvvey, 2 B. & Aid. 360; 1 Chit. R. 104-112, S. C., where see a form. (y) These words appear unnecessary, and should be omitted if the plaintiff claim by grant. Ante, Obs. (z) The general form of showing the title was sufficient before the late act shortening the time of prescription, and is expressly sanctioned thereby. Ante, Obs. Still the right should be stated accurately, and if it be subject to any condition precedent, as a money payment to the lord ; Bolam v. At- kinson, cor. Bayley J. Northumberland or Northampton Summer Assizes, 1827, 2 Stark. Ev. (3d ed.) 315, note (c) ; or be sub- ject to restriction or qualifications as to the number of cattle ; see 1 Saund. 28, note (4) ; 346 b, c ; 2 Saund. 327 ; Brook v. Willett, 2 H. Bl. 234 ; How v. Strode, 2 Wils. 269 ; Manifold v. Pennington, 4 B. & C. 161 ; or the time of employment ; 2 Saund. 2, 3 ; Musgrave v. Cave, Willes, 320; Smith v. Flower, 3 Bing. 401 ; the restriction should be stated. But an allegation of a right "at all times," means all " usual times " of the day. Brook v. Willett, 2 H. Bl. 224, 234. The right alleged should not be larger than can be proved. See Beardsworth v. Torking- ton, 1 Q. B. 782. As to a statement of the right in a common field enjoyed with other vol. ii. 32 persons, Cheeseman v. Hardman, 1 B. & Aid. 706; Pigott v. Bayley, 6 B. & C. 16. A claim to " turn cattle out in a field," would, it seems, be too vague. Bailey v. Appleyard, 8 Ad. & E. 161, 778. As to common per cause de vicinage, see Heath v. Elliott, 4 Bing. N. C. 388. How to plead it. Jones v. Bobin, 15 L. J. Q. B. 15 ; [10 Q. B. 581 ;] Clarke v. Tinker, [10 Q. B. 604. J It may be claimed by prescription under 2 & 3 W. 4, c. 71. Pritchard v. Powell, 15 L. J. Q. B. 166. As to levaucy and couchancy, see Scholcs v. Hargreaves, 5 T. R. 46 ; Benson v. Chester, 8 T. R. 396 ; 1 Saund. 28, note (4) ; 346 6 ,• Carr v. Lambert, 35 L. J. Ex. 121; [L. R. 1 Ex. 168;] Selw. N. P. tit. " Common." It need not be proved the land was actually used for supporting the cattle. Bolam v. Atkinson, Carr v. Lambert, ubi supra. (a) Ii the right be for a number certain, this should be varied. 1 Saund. 28, note (4); 346 b, c; 2 Saund. 327. As to the meaning of these words, Whitelock v. Hutch- inson, 2 M. & R. 205 ; Carr v. Lambert, 35 L. J. Ex. 121; [L. R. 1 Ex. 168.] (b) Of course only such of the following modes of obstruction as apply to the par- ticular case will be stated. A general alle- gation of obstruction should be avoided as improper. Tebbutt v. Selby, 6 Ad. & E. 787. (c) No proof of actual or specific injury is requisite. Pindar v. Wadsworth, 2 Ea-t, 154; 2 Stark. Ev. 3d ed. 317. Therefore the plaintiff need not prove he used or attempted to use his right at the time. Wells v. Watling, 2 Bl. 1233. 498 DECLARATIONS IX TORT. COPYRIGHT. COMPANY. B e post. "Public Company," and ante, part 1, pp. 225-229 and 451. CONSPIRACY, (d) Qn~. — I '!,,- old writ of conspiracy has now become obsolete, and an action for a ospiracy is now the usual remedy, and may be brought against one. 1 I. note (b); Mills v. Mills, Cro. Cas. 239; [Eason v. Westbrook, Murph. (X. Car.) 329 ; Bigelow J. in Parker v. Huntington. 2 Gray, 126, 127 ; Jones . Baker, 7 Co wen, 445 ; Hutching v. Hutehins, 7 Hill, 104 ; Page p. Cushing, 88 Maine, 523 ; Page v. Parker, 40 N. H. 47; Randall p. Hazelton, 12 Allen, 412, 414.] See Barber v. Lesiter, 7 C. B. N. S. 175 ; 29 L. J. C. P. 161, where it was held that the declaration was bad, on the ground that, if it was a declaration on the case in the nature of a conspiracy, it did not show that the damage to the plaintiff was intended by the defend- ant, or was tlic legitimate result of his acts ; and that, if it was a declara- tion for a malicious prosecution, it did not show that the defendant caused the prosecution to be instituted, nor a termination of it in the plaintiff's favor. 1 Saund. 230 a, note (b). One of two parties to an agreement to suppress a prosecution for felony cannot maintain an action for a conspiracy for an in- jury arising out of the transaction, in which they have both been illegally en- gaged. Fivaz v. Nicholls, 2 C. B. 501 ; 15 L. J. C. P. 125. See Castrique > . I'., lirens, [3 El. & El. 709 ;] 30 L.J. Q. B. 163. [No action lies for a mere conspiracy unless it results in actual damage. Herron v. Hughes, 25 Cal. 555. The damage and not the conspiracy is the gist of the action. Hutch- ins v. Hutehins, 7 Hill, 104; Tappan v. Powers, 2 Hall (N. Y.), 277 ; Hinch- man v. Richie, Bright (Pa.), 143 ; Chapman J. in Bowen v. Matheson, 14 Allen, 502 ; Bigelow J. in Parker v. Huntington, 2 Gray, 127 ; Page v. Par- ker, 40 N. H. 66, 67. As to the damage, see Patten v. Gurney, 17 Mass. 186 ; Swan v. Saddlemire, 8 Wend. 676. This action cannot be sustained against a principal and agent jointly for the unauthorized fraudulent acts and representations of the agent alone. Page v. Parker, 40 N. H. 47; Parsons v. "Wine-hell, 5 Cush. 592. The acts of conspirators, as affecting each other, see Page r. Parker, 40 N. H. 47 ; S. C. 43 N. H. 363 ; Hinchman v. Richie, su- pra; Tappan v. Powers, 2 Hall (N. Y.), 277. As to the necessity for aver- ring the means by which the injury was intended to be effected, see Setzar v. Wilson, 4 Ired. (Law) 501.] Declaration for conspiring to hiss an Actor. Gregory v. The Duke of Brunswick, 6 M. & Gr. 205. COXTRACTORS. See ante, " Commissioners," and^os^, " Negligence." CONVERSION. Seepos*, "Trover." COPYRIGHT. Obs. — Copyright appears now to depend entirely upon statute. See Jefferys v. Boo- sey. l II. L. Cas. 815 ; Reade v. Conquest, 9 C. B. N. S. 766. [See Wheaton ''■ - I'etera, 591 ; Clayton v. Stone, 2 Paine, 382; Bartlett v. Critten- den. .", McLean, 32.] The law is now regulated by 5 & 6 Vict. c. 45. By s. (d) Bee, also, Fivaz v. Nicholls, 15 L. J. 29 L. J. C. P. 161 ; Castrique v. Behrens, 30 C. P. 126 ; [2 C. B. 501 ;] Barber v. Lesiter, L. J. Q. B. 163 ; [3 El. & El. 709.] DECLARATIONS IN TORT. COPYRIGHT. 499 Obs. 2, the period of copyright extends for forty-two years, or seven years after the author's death (whichever term shall lie the Longest). [Copyright ie reg- ulated entirely by acts of Congress in the United States. See Rev. Sts. U. S. tit. lx. c. 3, ]). 965 et xeq. And the courts of the United States have ex- clusive jurisdiction of cases arising under these acts. Rev. Sts. U. S. tit. xiii. c. 12, p. 135. Copyrights are granted for the term of twenty-eight year? from the time of recording the title thereof, with a right of continuance in the author at the end of that term, in himself if he be then living, or, if not, then in his widow or children. Rev. Sts. U. S. tit. lx. C. 3, p. 966, §§ 4953, 4954. See Pierpont v. Fowle, 2 Wood. & M. 42.] And it appears that a foreign author, residing abroad, who first publishes his work here, has not, nor has his assignee here, any copyright in this country. Chapped n. Purday, 14 M. & W. 303 ; 14 L. J. Ex. 258. But an alien who whilst resident in any possession of the British crown, first publishes his work in England, acquires a copyright throughout the British dominions. Low v. Routledge, 33 L. J. Ch. 717 ; [S. C. L. R. 1 Ch. Ap. 42 ; S. C L. R. 3 II. L. 100. See Boucicault v. Wood, 7 Am. Law Reg. N. S. 539.] A gratuitous cir- culation is a publication for which a person is liable as an invasion of the property of the proprietor. Novello v. Sudlow, 12 C. B. 177; 21 L.J. C. P. 169. The 11th section [5 & 6 Vict. c. 45] provides that a book of registry for the proprietorship of copyrights and the assignment thereof shall be kept at' Stationers' Hall ; and a certified copy of the entries in such book under the hand of the officer of the company, and impressed with their stamp, shall be " prima facie proof of the proprietorship or assignment of copyright or license as therein expressed, but subject to be rebutted by other evidence." And by s. 24, "No action can be maintained for the infringement of the copy- right of any book which shall be first published after the passing of the act, unless such entry has been made." [For corresponding provisions in the copyright laws of the United States, see Rev. Sts. U. S. tit. lx. c. 3, §§ 4948, 4956, 4957, 4962.] It would appear doubtful in an action for an infringement whether there should be an allegation that the copyright had been registered pursuant to the act ; but, at all events, the non-registration should be pleaded. Chapped v. Davidson, 18 C. B. 194 ; 25 L. J. C. P. 225. [In all actions arising under the United States laws respecting copyrights, the defendant may plead the general issues, and give the special matter in evidence. Rev. Sts. U. S. tit. lx. c. 3, § 4969.] Sect. 13 [5 & 6 Vict. c. 45] provides for the form of entry of proprietorship, [see Rev. Sts. U. S. tit. lx. c. 3, § 4957,] and enacts that " it shall be lawful for every such registered proprietor to as- sign his interest, or any portion of his interest therein, by making entry in the said book of entry of such assignment, of the name and place of and abode of the assignee thereof in the form given in the schedule, and such as- signment so entered shall be effectual in law to all intents and purposes what- soever, without being subject to any stamp or duty, and shall be of the same force and effect as if such assignment had been made by deed." [For pro- visions respecting assignments of copyright, and recording the same, in the United States, see Rev. Sts. U. S. tit. lx. c. 3, § 4955.] As to registration, see Stevens e. Wildy, 19 L. J. Ch. 190 ; AVood v. Boosey, 36 L. J. Q. B. 103; [L. R. 3 Q. B. 223.] To entitle any one but the author to register, there must be an absolute assignment of the copyright ; Ex parte Bastow, 14 C. B. 631 ; Cumberland v. Copeland, 7 H. & N. 118; and if an entry has been improperly made, the court may order it to be varied or expunged. lb. But the court will not order it to be expunged unless it is clearly false, or vary it unless satisfied that they would be making a true entry by so doing. Ex parte Davidson, 18 C. B. 297 ; 25 L. J. C. P. 237. See Ex parte Davidson, 2 El. & Bl. 577; see s. 14 of the act. As to the proper description of the pro- prietor's place of abode, see Lover v. Davidson, 1 C. B. N. S. 182 ; and see Graves v. Ashford, 36 L. J. C. P. 139; [L. R. 2 C. P. 410.] Sect. 15 enacts that " if any person shall print, or cause to be printed, either for sale or ex- portation, any book in which there shall be a subsisting copyright, without the consent in writing of the proprietor thereof, or shall import for sale or hire any such book, so having been unlawfully printed, from parts beyond the sea, or knowing such book to have been so unlawfully printed or imported, shall 500 DECLABATIONS IN TORT. COPYRIGHT. Obs. pell, publish, or expose to sale or hire, or cause to be sold, published, or cx- posed to Bale or hire, or shall have in his possession for sale or hire any such book mi unlawfully printed or imported, without such consent as aforesaid, such offender shall be liable to a special action on the case at the suit of the proprietor of such copyright." [For corresponding provisions in the laws of the Cnited Stat Rev. Sts. U. S. tit. lx. c. 3, §4904.] Ai to what is an infringement of copyright, see Jefferys v. Boosey, 4 H. L. i - B76; Reade v. Conquest, 9 C. B. N. S. 755 ; Reade v. Conquest, 11 C. B. N S. 179 : Tinsley V. Lacy, 32 L. J. Ch. 535; [1 H. & M. 747;] Hot- ten v. Arthur, 32 L. J. Ch. 771 ; [1 H. & M. (503 ;] Smith v. Johnson, 33 L. J. Ch. 137 ; [4 Giff. 632 ;] Kelly v. Morris, 35 L. J. Ch. 423 ; [2 Dan. Ch. Pr. ( 1th Am. ed.) 1G45 et seq. ; Folsom v. Marsh, 2 Story, 100 ; Hodges r. Welsh, 2 Irish Eq. 266 ; Gray v. Russell, 1 Story, 11; Scott v. Stanford, L. R. 3 Eq. 718 ; Pike c- Nicholas, L. R. 5 Ch. Ap. 251 ; Emerson v. Davies. ;; Sto > . 768, 787 ; Greene v. Bishop, 1 Cliff. 186 ; Story v. Holcombe, 4 Mc- 1 , ,306; Webb v. rowers. 2 Wood. & M. 497, 512; Stowe v. Thomas, 2 \V dlace jr. 547 : Atwill v. Ferrett, 2 Blatchf. 39; Van Hook v. Pendleton, 2 Blatchf. 85; 1 Watson Comp. of Eq. 122, 123. In Folsom v. Marsh, 2 - IV . LOO, Judge Story laid down the general proposition, in reference to what would constitute an infringement of copyright, that if so much of a work be taken in form and substance, that the value of the original work is Bensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, it constitutes, in point of law, piracy pro tanto. This rule has been adopted or supported in subsequent cases. Sec Emerson v. Davies, Webb v. Powers, Greene v. Bishop, above cited, and Lewis v. Fullerton, 2 Beavan, 6 ; Jarrold v. Houldston, 3 K. & J. 708.] As to the drama and musical pieces, see also 3 & 4 W. 4, c. 15. As to engrav- ing- and prints, see 8 Geo. 2, c. 13 ; 7 Geo. 3, c. 38 ; 17 Geo. 3, c. 57 ; ex- tended to lithographs, 15 & 16 Vict. c. 12, s. 14, and 6 & 7 W. 4, c. 59. See Graves v. Ashford, 36 L. J. C. P. 139; [L. R. 2 C. P. 410,] as to photo- graphs. As to busts and sculpture, see 38 Geo. 3, c. 71 ; 54 Geo. 3, c. 56. As to designs for ornamenting articles of manufacture, Sarazin v. Hamel, 32 L. J. Ch. C 378, 380; [32 Beav. 151;] Windover v. Smith, 32 L. J. Ch. 561; McCrea v. Holdsworth, L. R. 1 Q. B. 264; lb. 2 H. L. 380; [5 B. & S. 495;] 5 & 6 Vict. c. 100; 6 & 7 Vict. c. 65; 13 & 14 Vict. c. 104; 21 & 22 Vict. c. 70. As to lectures, 5 & 6 W. 4, c. 65. As to international copyright, 7 & 8 Vict. c. 12; 15 & 16 Vict. c. 12 ; Boucicault v. Delafield, 33 L. J. Ch. 38 ; [1 H. 6 M. 59 7 :] Wood v. Boosev, 36 L. J. Q. B. 103 ; [L. R. 2 Q. B. 340 ; S. C. L. R. 3 Q. B. 223] See ante, part 1, p. 368. 1. For printing for Sale Pirated Copies of a Boole, (e) For that the plaintiff" was the proprietor of the subsisting copyright in a book intituled ; yet the defendant, after the passing of the act of par- liament passed in the sixth year of the reign of Queen Victoria to amend the law of copyright, wrongfully and without the consent in writing of the plain- tiff, printed and caused to be printed for sale [or "exportation"] divers copies of the said book (/) contrary to the said statute, whereby the profits of the plaintiff in his said copyright therein have been diminished and lessened, and he baa been otherwise injured. (e) Form, Sweet v. Benning, 16 C. B. dav, 4 Ex.145; 18 L. J. Ex. 378 ; Chappcll 459; 24 L. J. C. 1'. 175. A "sheet of v. Davidson, 18 C. B. 194; 25 L. J. C. P. music" i- comprised in the term "book." 225; Novello v. Sudlow, 12 C. B. 177; 21 .") & i', Vict. e. 45, s. 2. See, further, as to L. J. C. P. 169, where see various forms. racj of music, Clementi v. Walker, 2 ( f) The declaration need not state that C. 861 ; White v. Geroch, 2 B. & Aid. defendant published plaintiff's hook. It Jefferys v. Boosey, :±4 L. .1. Ex! 81; states a good cause of action if it avers pub- I i II- I- 1 '•■-■ 815 jj Cocks v. Purday, 5 C. lication of parts of a book. Kooney v B. 860; 17 L. J. C. B. 273 ; Boosey V Pur- Kelly, 14 Ir. C. L. Rep. 158. DECLARATIONS IN TORT. CORPORATIONS. 501 2. For selling, $c. Printed Copies. (#) For that the plaintiff was the proprietor of the subsisting copyright in a book intituled . And after the passing of the act of parliament passed in the sixth year of the reign of Queen Victoria, to amend the law of copy- right, divers copies of the said book had been wrongfully, and without the consent of the plaintiff in writing, and contrary to the said statute, printed by A. 13.. [or " by a person to the plaintiff unknown "] for sale [or "imported for sale from parts beyond the seas into England "] ; yet the defendant, after the passing of the said act, and without the consent in writing of the plaintiff, and contrary to the said act, sold divers copies of the said book, whereby the prof- its [conclude as in last form']. References to other Forms, Sfc. For pirating a print, contrary to 8 Geo. 2, c. 13, s. 1, see, also, 7 Geo. 3, c. 38 ; 17 Geo. 3, c. 57 ; West v. Francis, 5 B. & Aid. 737 ; Brooks v. Cock, 3 Ad. & E. 138. See Moore v. Clarke, 9 M. & W. 622 ; Page v. Townsend, 5 Sim. 305 ; Martin v. Wright, 6 Sim. 297. [For infringing the copyright in a print by means of photography. Gambart v. Ball, 14 C. B. N. S. 306 ; Graves v. Ashford, L. R. 2 C. P. 410.] No action for the piracy of a print can be sustained unless the date of the first publication was engraved on the plates. See Brooks v. Cock, 3 Ad. & E. 138 ; Colnaghi v. Ward, 12 L. J. Q. B. 1 ; Avanzo v. Mudie, 10 Ex. 203. A knowledge of the print being spurious is not necessary. Gambart v. Sumner, 5 H. & N. 5 ; 29 L. J. Ex. 98). For piracy of the model of a bust, see Gahagan v. Cooper, 3 Camp. 112. Piracy of dramatic literary property. Cumberland v. Planche, 1 Ad. & E. 580; Shepherd v. Conquest, 17 C. B. 427 ; 25 L. J. C. P. 127; Morton v. Copeland, 16 C. B. 517 ; Hatton v. Kean, 7 C. B. N. S. 268 ; 29 L. J. C. P. 20; Reade v. Conquest, 3 C. B. N. S. 755 ; 30 L. J. C. P. 209 ; Cumberland v. Copeland, 7 H. & N. 118 ; 31 L. J. Ex. 19, 353. Debt for penalties. Planche v. Braham, 8 C. & P. 68 ; Fitzball v. Brooke, 6 Q. B. 873. Of designs for manufacturers. Millengen v. Picken, 1 C. B. 799 ; McCrea v. Holdsworth, 33 L. J. Q. B. 329 ; [L. R. 1 Q. B. 264.] Of registered designs under 5 & 6 Vict. c. 100, see Harrison v. Taylor, 3 H. 6 N. 301 ; 4 lb. 815; 27 L. J. Ex. 315 ; Heywood v. Potter, 1 El. & Bl. 439 ; Norton v. Nicholls, 28 L. J. Q. B. 225 ; [4 K. & J. 475.] Under international copyright act. Wood v. Boosey, 36 L. J. Q. B. 103 ; [L. R. 3 Q. B. 223.] CORPORATIONS. Obs. — See ante, " Commissioners." Corporation is included in the words " person or persons." Mayor of Hereford v. Morton, 15 L. T. N. S. 187; [Boyd v. The Croydon Ry. Co. 4 Bing. N. C. 669. So by statute, in Massachusetts, Genl. Sts. c. 3, § 7, div. 13.] A corporation is liable for a tort, if the act complained of is within the purpose of the corporation, and is committed in such a manner as to constitute an actionable wrong if done by an individual, (g) Form, Wright v. Tallis, 1 C. B. 893 ; 14 L. J. C. P. 283. 502 DECLARATIONS IX TORT. CORPORATIONS. Obs. Green v. London General Omnibus Co. [7 C. B. N. S. 290;] 29 L. J. C. P. l;; : \. n _■ 11 \ Ames Corp. § •ill, and cases cited ; Ranker v. Great Western i; v . Co. 5 H I. I is. 72, 87; New York & New Haven R. R. y. Schuyler, 34 \ Y Brokaw v. New Jersey R. K. & Transp. Co. 3 Vroom, 328, 330: Atlanta & 1 1. W. R. Co. v. Dunn, 19 Ohio St. 162; 1 Chitty PI. 86, note (u) and cases cited.] So a corporation maybe made responsible for the negligent or unskilful conduct of its servants in the execution of the ordinary :k and business of the corporation, without proof that the work was ordered under the corporation seal. Scott v. Mayor &c. of Manchester, 1 H. & N. 59 : -J I!.. 204; 26 L. L. J. Ex. 132-406; [2 Kent, 284; Thayer v. Bos- ton. 19 Pick. 516, ">1 7. A railroad corporation is liable, to the same extent as an individual would be, for an injury done by its servant in the course of his employment. Moore v. Fitchburg R. R. Co. 4 Gray, 465; Hewitt v. Swift, 3 Allen, 120; Holmes r. Wakefield, 12 Allen, 580; 1 Chitty PI. 86, note (w); B innds v. Delaware, Lackawanna &c. R. R. Co. 5 N. Y. Sup. Ct. 475, 483. If tin- act of the servant is within the general scope of his employment, the master is equally liable, whether the act is wilful or merely negligent; Howe c. Newmarch, 12 Allen, 49; or even if it is contrary to an express order of the master. Philadelphia & Reading R. R. Co. v. Derby, 14 How. (U. S.) B. Such a corporation is liable for an assault and battery committed by the conductor of one of its trains upon a passenger in seizing or attempting to Beize 1 1 1 -~ property to enforce payment of his fare. Ramsden v. Boston & Albany R. R Co. 104 Mass. 117;" 1 Chitty PI. 92, note (q). And in other ses, corporations maybe held responsible in actions for assault and battery. See Brokaw v. New Jersey R. R. & Transp. Co. 3 Vroom, 328; Hewitt v. Swift. 3 Allen, 420; St. Louis. A. & C R. R. v. Dalby, 19 111. 353; Rounds v. Delaware. Lackawanna & Western R. R. Co. 5 N.'Y. Sup. Ct. 475.] A corporate In ill v may be liable for negligence of their servants, although there i> no improper conduct on the part of the corporation. Mersey Docks & Har- bor Board v. Gibbs, 35 L. J. Ex. 225; [11 H. L. C»s. 686 ; L. R. 1 H. L. 83 ; ante, 494, 495.] An action is maintainable against a corporation aggregate for a libel published by the order of the corporation, and in such an action it i- not necessary to show that the defendants had any ill-will, or that they meant to injure the plaintiff. AVhitfield v. South Eastern Ry. Co. 1 El., Bl. & El. 121: 27 L. J. Q. B. 229. See Stevens v. Midland Ry. Co. 10 Ex. 352; 23 L. J. Ex. 328; [Aldrich :•. Press Printing Co. 9 Minn. 133; Philadelphia &c. R. R. Co. v. Quigley, 21 How. (U. S.) 202; Maynard v. Firemen's Fund Ins. Co. 34 Cal. 48. So a corporation maybe liable "for malicious prosecution. Goodspeed v. East Haddam Bank, 22 Conn. 530 ; Vance v. Erie R. R. Co. 3 Vroom, 334; but see Owsley v. Montgomery R. R. Co. 37 Ala. 560. Coulter v. Dublin & Belfast Junction Ry. Co. Ir. L. T. Rep. 209 ; Carmichael v. Waterford & Limerick R. R. Co. 13 Ir. L. Rep. 313.] So a corporation may maintain an action for a libel. Metropolitan Saloon Omnibus Co. v. Hawkins, 4 H. & N. 87; 28 L. J. Ex. 201; [The Trenton Mut. Life & Fire Ins. Co. v. Perrine, 3 Zabr. 402.] So a trading corporation may be liable in trover. Giles v. Taff Vale Ry. Co. 2 El. & Bl. 831. [As to municipal corporations, it has been held that a private action cannot be main- tained against a town, or other quasi corporation, for a neglect of corporate duty, unless such action lie given by statute. Mower v. Leicester, 9 Mass. "Jt7; Riddle V. Proprietors of Locks '& Canals on Merrimac River, 7 Mass. 169, 187; Holman v. Townsend, 13 Met. 297, 300; Brady v. Lowell, 3 Cush. 124; Adams v. Wiscassel Lank, 1 Greenl. 361; Oliver W.Worcester, 102 Mass. 189, 196; Reed v. Belfast, 20 Maine, 248; Eastman v. Meredith, 36 N. II. 284; Commissioners of Hamilton Co. v. Mighels, 7 Ohio St. 109; Ward '•■ County of Hartford, 12 Conn. 404; Pray v. Jersey City, 32 N. J. 394; Freeholders v, Strader, 3 Harr. (N. J.) 108; Bigelow v. Randolph, 14 Gray, 641, 548; Dillon v. Munic. Corp. 716-723, §§ 761-765; 1 Chitty PI. 86, note ) and cases cited. In the above ease of Bigelow W.Randolph, 14 Cray, 548, Mr. Justice Metcalf said: " This rule of law, however, is of limited ap- plication. It is applied in the case of towns only to the neglect or omission oi a town to perform those duties which are imposed upon all towns, without their corporate assent, and exclusively for public purposes, and not to the neglect oi those obligations which a town incurs when a special duty is im- posed upon it, with its consent express or implied, or a special authority is DECLARATIONS IN TORT. DISTRESS FOR EENT. 503 Obs. conferred on it, at its request. In the latter cases, a town is subject to the same liabilities, for the neglect of those special duties to which private cor- porations would be, if the same duties were imposed or the same authority conferred on them, including their liability for the wrongful oe^lect as well as the wrongful acts of their officers and agents." See, also, Conrad v. Ithaca, 16 N. Y. 158; Hafford o. New Bedford, 16 Gray, 297; Barry v. Lowell, 8 Allen, 127; Sawyer v. Northfield, 7 Cush. 494; Walcott v. Swamp- scott, 1 Allen, 101; Hyde v. Jamaica, 27 Vt. 443; Jones v. New Haven, 34 Conn. 1.] See post, " Public Company." DEATH BY ACCIDENT. See '< Carriers," p. 491, « Negligence." DECEIT. See "Fraud." DETINUE. See " Trover." DEFAMATION. See " Libel and Slander." DILAPIDATIONS. See post, « Rector," " Landlord and Tenant." DISTRESS FOR RENT, &c. Obs. — See Bullen on Distresses; Woodfall's Landlord and Tenant, by Cole. By the common law, a party making a distress for rent became a trespasser ab initio if he were guilty of any irregularity in conducting it, although his ricdit to distrain was undisputed. The Six Carpenters' Case, 8 Co. 146° Bac. Abr Trespass, B.; Dye r. Leatherdale, 3 Wils. 20. This rule still prevails in the case of distress taken, damage feasant ; lb.; Wilder v. Speer, 8 Ad. & E. 547; but is annulled as to distresses for rent by 11 Geo. 2, c^ 19, s. 19, which enacts that "where any distress shall be made for any kind of rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not therefore be deemed unlawful, nor the party making it deemed a trespasser ab initio, but the party ac-orieved by such wilful act or irregularity shall recover full satisfaction for thTspecial damage he shall have sustained, and no more, in an action of trespass, or on the case, with full costs." Section 20 provides that tender of amends may be made. The object of the act was to limit the claim to damages for the specific injury received, and no more. The correct practice in actions for irregular distresses is to make either the landlord alone, if he can be fixed (see Crabb v. Killick, 6 C. & P. 216), or the landlord and the broker defendants, and not to join appraisers, &c. ; and if a plaintiff do join them, the judge will oblige him to make out his case by strict rule, and not allow questions to be put to a witness who has been cross-exam- ined, or a witness to be called back with a view to fixino- such appraisers, &c. Child v. Chamberlain, 6 C. & P. 213-484 ; 5 B. & Ad. 1049. In replevin against a broker, if it be proved that the landlord employs the attorney to defend the broker, that is sufficient evidence of the broker's authority to dis- train in the absence of any written warrant, Duncan v. Meikleham, 3 C. & P. 172. A count in trover may and should be added where the validity of DECLARATIONS IN TORT. DISTRESS FOR RENT. the distress ie denied, and then the plaintiff may without notice proceed on thatcount - Obs. 506; 2 Stark. E v. 288, 2d ed. When the land- lord i> liable in trover for the acl of the bailiff, Lewis v. Read, 13 M. & W. I ies where a party pays money to redeem Lis goods illegally any right of distress. Shipwick v. Blanchard, 6 T. R. -. Frivolous actions of this kind are discouraged, and if the damages be under 40*. the plaintiff will get no costs unless the judge certify. I justify lew in- and ili<. there musl be an actual tenancy; Anderson v. land Ry. do. 30 L. J. Q. B. 94 : How v. Scarott, 28 L. J. Ex. 325; and there must also be an ascertained rent. Gardiner v. Williamson, 2 B. & Ad. • : Neale , Mackenzie, l M. c\ W. 763. And the renl must also be due; ,: Smith, 9 Ex. 665; 23 L. J. Ex. 198; Co. Litt. 161 a; or the ten- mav resisl the distress by force, and if the goods be taken, may rescue them. lb. A mortgagor in possession may distrain for rent; Trent v. Hunt, :'•_' I.. .1. Ex. 318; ami also his assignee. Snell v. Finch, 32 L. J. C. P. 117; 13 ('. B. X. S. 651. Sec, also, Brown v. Metropolitan Ry. Co. 28 L. J. Q. B. 286 \ to ri°ht to distrain under an agreement for a lease, Anderson v. Midland Ry. do. 30 L. J. Q. B. 94. A landlord by distraining for rent affirms the continuance of the tenancy up to the day when the rent so dis- trained for became due. Coteswortb v. Spokes, 30 L. J. C. P. 220. ^ The landlord may distrain after the termination of the tenancy within six months of such termination, and during the continuance of the landlord's title, and during the possession of the tenant. 8 Anne, c. 14, ss. 6 and 7. B il where a tenant at will died leaving rent in arrear, and the next day the landlord distrained on the premises which were then occupied by the de- rvants, and his widow subsequently took possession the day after, and afterwards administered, it was held that the distress was not justified by the act, as not being made "during the possession of the tenant from whom the rent became due." Turner v. Barnes, 31 L. J. Q. B. 170. B 3 & I W. 4, c. 42, ss. 37, 38, executors anil administrators of a lessor or landlord may distrain for rent due in the deceased's lifetime. A :.nder of the rent before a distress is levied, although the warrant is issued, renders the execution of such distress wrongful ab initio. Bennett v. Bayes, 29 L. J. Ex. '-'24. A tender after levy amfbefore impounding or sale makes the subsequent proceedings wrongful. Johnson v. Upbam, 28 L. J. Q. B. 252; and see post, form 15. '• Before sunrising or after sunset no man may distrain but for damage feas- ant "' The Mirrour of Justices, 100; Co. Litt. 142 a; Tutton v. Darke. 5 H. & N. 654; I'ii I,. J. Ex. 271. The rent is not due until midnight, ami there- fore a distress cannot be levied before the day following. Duppa v. Mayo, 1 Saund. 285. A landlord, under a warrant of distress, is not justified in breaking open an outer door. Brown v. Glen, 20 L. J. Q. B. 205 ; 16 Q. B. 254. Nor in open- ing a window fastened by means of a hasp. Hancock v. Austin, 32 L. J. C. P. 252. But he may open an outer door which is not fastened. Ryan v. Shilcock, 21 L. J. Ex. 55; 7 Ex. 72. And if he enters in an unlawful way, he is a trespasser, and the value of the goods is the measure of the damages. Attack v. Bramwell, 32 L. J. Q. B. 146. The 11 Geo. 2, c. 19, s. 19, which enacts that distresses for rent shall not be unlawful for any irregularity in the disposition of them, does not apply where the original entry was unlawful. lb. Where the person lawfully in possession leaves the distress for a temporary purpose, and is locked out, he may break open the outer door to obtain pos- Bession. Bannister v. Hyde, 29 L. J. Q. B. 141. B; '• Anne. c. 12, s. 3. the goods of ambassadors and their domestic servants are exempt from distress. Goods in pawn are privileged from distress. Swire v. Lea b, 34 I... I. C. P. 150; [18 C. B.N. S.479.] Goods of a stranger on the pi' in'.' - to be manufactured or worked upon are not distrainable. Wood v. I larke, 1 Cr. & J. 184; (iibson v. Ireson, 3 Q. B. 39; Brown v. Shevill, 2 Ad. & E. 188. See Eteeve *■. Whitmore, 32 L. J. Ch. 497. So, also, goods in the hand- of a factoi'. or warehouseman. Ralliw. Scholefield, C. P. 36L. J.J Gilman v. Elton. 3 B. & 1'.. 7.".: Thompson v. Mashiter, 1 Bin-. 283. So, also, fixtures attached to the freehold. Pitt v. Shew, 4 B. & Aid/ 207; Dalton V. \\ bittern. :; n. B. 96] j Hellawell v. Eastwood, 6 Ex. 309; 20 L. J. Ex. 155. DECLARATIONS IN TORT. DISTRESS FOR RENT. 505 Obs. A landlord who gives a broker a general authority t<> distrain is liable equally with the broker. Lewis /•. Head, 13 M. & \V. 837; (iauntlett V. King, 3 C. B. N. 8. 59; Hart v. Leach, 1 M. &W. 560. Even though the broker is guilty of an irregularity. Baseler v. Lemoyne, 28 L. J. C. 1*. 103; [5 C. B. N. S. 530.] See, also", an authorized agent. Bennett v. Laves. 29 L. J. Ex. 224; [5 II. & N. 391.] A mere License to distrain does not entitle- the land- lord to distrain goods of a stranger. Reeve v. Whitmore, 32 L. J. Ch. 497. 1. For distraining, $c. where no Rent was due, to recover Double Value. (Ji) For that the plaintiff was tenant to defendant of a messuage and prem- ises, (i) at a rent payable by the plaintiff to the defendant; (IS) and the defend- ant wrongfully, and contrary to the statute in that behalf, seized the goods of the plaintiff in the said messuage and premises, as a distress for rent pretended to be in arrear and due in respect of the said messuage and premises, and sold the same as such distress, whereas at the time of making such distress and sale of the said goods no such rent was due or in arrear. (I) 2. For taking an Excessive Distress. Obs. — See form, &c. Yates v. Tearle, 6 Q. B. 283. This count was formerly framed on the statutes of Marlbridge, 52 H. 3, c. 4, when the landlord could not sell the distress ; now, since 2 \V. & M. c. 5, it would be proper to aver a (A) See forms, &c. Yates v. Tearle, 6 Q. B. 282 ; Hoare v. Lee, 5 C. B. 754 ; 17 L. J. C. P. 196. By 2 W. & M. sess. 1, c. 5, s. 5, " in ease any such distress and sale as afore- said shall be made by virtue or color of this present act for rent pretended to be in arrear and due, where in truth no rent is in arrear or due to the person or persons distraining, or to him or them in whose names or right such distress shall be taken as aforesaid, that then the owner of such goods or chattels dis- brained and sold as aforesaid, his executors or administrators, shall and may by action of trespass, or upon the case to be brought against the person or persons so distraining, any or cither of then), his or their executors or administrators, recover double of the value of the goods or chattels so distrained and sold, together with full costs of suit; " and the jury ought to be directed to give such double value if they find for the plain- tiff at all. Masters v. Fan-is, 1 C. B. 715. The distress is absolutely void where no rent was due when it was taken, and trespass or trover may be maintained. (t) In general the tenancy should be shown to be subsisting when the grievance was com- mitted. Rideley v. Etyle, 10 M. & W. 106. The venue being transitory, the situation of the premises need not be stated; but, if stated, should be stated correctly. Harris v. Cooke, 2 Moore, 587. (k) In Salter v. Brunsdcn, 4 Mod. R. 231, and see Com. Dig. Distress, D., G., it was held, qft( v> rdict, that a declaration in tres- pass on 2 W. & M. c. 5, for making a colora- ble distress, need not state a demise in form, but that it is sufficient to aver that the goods were taken nomine districtionis ; but, as the tenancy is a material and traversable allega- tion (Yates v. Tearle, 6 Q. B. 282), it would be safer to aver it as above. If inserted, it ought to be described correctly. Ireland v. Johnson, 1 Bing. N. C. 162. (/) If it be doubtful whether some rent may not have been due, but the distress was for more rent than was in arrear and was excessive, it will be as well to insert counts adapted to such charges. See form 2. Add a count in trover if the existence of a tenancy, at a fixed rent, be doubtful, or if fixtures (Darby v. Harris, 1 Q. B. 895; Dalton v. Whitten, 3 Q. B. 961) or other goods not legally distraiuable be taken. A distrainer is not liable for assuming to distrain fixtures unless he actually removes them. Beck v. Denbigh, 29 L. J. C. P. 273. The right to insist upon an illegality of a distress is not waived by bringing trover for fixtures severed and distrained. Dalton v. W bitten, ubi supra. In Hoare v. Lee, 5 C. B. 754 ; 17 L. J. C. P. 196, the court refused to allow a count for trespass, sed vid. the case. Distraining for a greater amount of rent than is due is not per se actionable. Tancred v. Levland, 16 Q. B. 669; 20 L. J. Q. B. 316 ; French v. Phillips, 1 H. & N. 564 ; 26 L. J. Ex. 82 ; Stevenson v. Newnham, 13 C. B. 297 ; 22 L. J. C. P. 110. See, also, Phillips v. Whitsed, 29 L. J. Q. B. 164. If a landlord distrains for more rent than is due, the tenant's proper course is to tender the amount really due; and if the landlord refuse to accept that sum to replevy the goods and try the dis- puted question of amount in an action of replevin. Glynn v. Thomas, 11 Ex. 870; 25 L. J. Ex. 125. See Lucas v. Tarleton, 27 L. J. Ex. 246*; [3 H. & N. 116 ;] or if the land- lord sells after such tender, the tenant may have his action on the case. See post, form 15. DECLARATIONS IX TORT. DISTBKSS FOR RENT. i sale if i has taken place. Thompson v. W I 4 Q. B. 493. Trover does n..t lie in the above case ; Lynn v. bloody, Fitzg. 89 ; 2 Str. 851 ; Hutchins Chambers, 1 Hun-. 590 : whitworth v. Smith, l M. & Rob. 19S, Tenterden t .: ild and silver be taken to excess, for they are of tn Hi.: ami per Lord Kenyon, Crowther v. Ramsbottom, 7 T. R. - :•. . I... S90, note ( />)■ 3d ed. See Hutchins v. >\'hit:*ker, 2 Ld. |^ . , entitle a plaintiff to maintain this action, the distress must . disproportionable and excessive. Roden v. Eyton, 6 C. B. 430 ; 18 L.J. « P. l. landlord and broker distraining are bound to use due care and reasonable judgment, skill, and discretion, in regard to the quantity and value of the ;ke. in reference to the amount of rent for which the distress is If from gross carelessness or error in judgment, though without mal- . Mitchell, 6 Esp. 71), they levy goods manifestly of much greater ie (Field v. Mitchell, 8 Stark. Ev. 283, 3d ed.; Crowder v. Self, 2 M. & B 10) than the arrears of rent and probable costs of the distress, ap- praisement, and sale, the tenant, being the owner of the goods (Fisher v. Al- 2 C. & P. 87 t). may maintain an action against them, or any one of them, to recover damages. Where there are several goods upon the premises, the landlord is liable it* be take one article or chattel of much greater value than the rent and costs, the other effects being of less value than the chattel dis- trained, but sufficient to Batisfy his claim, as if he take a cow, there being a -herp clearly of sufficient value ; but, however large the value of the chat- tel may be, the landlord is justified if there be no other article sufficient for his purpose. See Field v. Mitchell, 6 Esp. 71 ; Avenell v. Croker, M. & M. 172. As to excessive seizure of growing crops, Piggott v. Birtles, 1 M. & W. 441. In order to maintain this action, the goods taken need not be sold; but it" there has Keen a sale, it ought to be averred, or damans cannot be re- covered for it. Thompson v. Wood, supra. An action will lie for an exces- sive distress, although the sale (minus the expenses) does not realize the rent due. Smith <•. Ashworth, 29 L. J. Ex. 259. The tenant is injured, and may sue, if a man be left in possession, and all the goods be subject to the coer- cion of the distress, although the effects be not so completely taken from the tenant's control as to prevent him from carrying on his business. Baylis v. Fi-her, 7 Bing. 153. And a cause of action once acquired for an excessive distress, is not dive-ted by a subsequent arrangement with the landlord as to tin- gale. Willoughby v. Backhouse, 2 B. & C. 821 ; and see Holland v. Bird, 1" I5i„_r l.o : Branscomb v. Bridges, 1 B. & C. 145; 3 Stark. R. 171. If a i : i t in trover lie added, the plaintiff may at the trial abandon the special nit fur the excess, ami dispute the tenancy, and recover on the count in trover (the issue thereon being sufficient to let in such a case), without prior notice thai he will take that course. SpargO V. Brown. 9 B. & C. 935. At the trial of an action for an excessive distress, the question is what the fjoods ized would have sold for at a broker's sale ; if it lie excessive, the plaintiff entitled '<> recover the fair value of the excess. Wells v. Moody, 7 C. & 1'. 59. Wli.ie there has been an action of replevin stayed by consent, and the plaintifl has recovered the taxed costs, he cannot in this action recover damages the extra costs occasioned to him by the replevin. Grace v. Morgan, l' Bing. X. C. 534. See Phillips r. Berryman, 3 Dougl. 286. In an action tor an excessive distress, the plaintiff is entitled to nominal damag although he proves no actual damage. Chandler v. Doulton, 84 L. J. Ex. 89, and cases cited therein. To a declaration for an excessive distress for rent, the defendant pleaded that the whole sum distrained for was due ; held, on lined thereon, defendant was not precluded from insisting on certain arn fai I thai since they became due. other arrears had become due and been distrained for ; and this, although on the first distress the warrant and notice Btated the distress to be for rent due up to a named day, being quenl to those on which the arrears now in question accrued, and al- though in tie- distress the defendant stated it was for rent due since the last diatn GambreU v. Lord Falmouth, 4 Ad. & E. 73. A lodger may maintain this action if his goods are taken on an excessive dis- tresa by the landlord of his landlord. Fisher v. Algar, 2 C. & P. 374 ; Bail v. .Mcllor. ID L. J. Ex. 279. DECLARATIONS IN TORT. DISTRESS FOR RENT. 507 For that the plaintiff was tenant to the defendant of a messuage and prem- ises at :i rent payable by the plaintiff to the defendant; and the defendant wrongfully (m) distrained for arrears of rent goods of the plaintiff of greater value than the amount of the said arrears, and of the charges of the said dis- tress, and the appraisement and sale of the said goods, although a part only of the said <.<-<><>ds was of suilieient value to have satisfied the said arrears, and the costs, expenses, and charges of the said distress, and the appraisement and hale thereof, and thereby took an excessive distress for the said arrears, con- trary to the statute in that behalf, (n) 3. For taking an Excessive Distress for a Poor Rate. Starch v. Clarke, 4 B. & Ad. 113; and see The Governors of Bristol Poor 1-. Wait, 1 Ad. & E. 264. 4. For distraining and selling ivithout Notice. Obs. — See a form for impounding the goods off the premises, and not giving notice thereof, 2 Chit, on PI. 539, 7th ed. and see note there. It would seem to he necessary to give notice of distress, although there were no removal or sale. See lb. ; Com. Dig. Distress, 1). 7. A paro notice is insufficient. Wilson v. Nightingale, 15 L. J. Q. B. 309. The omission to give notice would not be sufficient to enable the tenant to support trespass. The form here given is founded on the equity and provisions of the statutes 2 W. & M. c. 5, s. 2 ; 11 Geo. 2, c. 19, s. 10. By the former statute it is enacted that, " Where any goods shall be distrained for any rent reserved and due upon any demise, lease, or contract whatsoever ; and the tenant or owner of the goods so dis- trained shall not, within five days next after such distress taken and notice thereof (with the cause of such taking) left at the chief mansion-house, or other most notorious place on the premises, charged with the rent distrained for, replevy the same ; then, after such distress and notice as aforesaid, and expiration of the said five days, the person distraining shall and may, with the sheriff or under-sheriff of the county, or with the constable of the hun- dred, parish, or place where such distress shall be taken (who are hereby re- quired to be aiding and assisting therein), cause the goods so distrained to be appraised by two sworn appraisers, to appraise the same truly, according to the best of their understanding; and, after such appraisement, shall and may lawfully sell the goods so distrained, for the best price that can be gotten for the same, towards satisfaction of the rent for which the said goods shall be distrained, and of the charges of such distress, appraisement, and sale, leaving the overplus (if any) in the hands of the said sheriff, under-sheriff, or constable for the owner's use." By 11 Geo. 2, c. 19, s. 10, it is enacted, " that any person lawfully taking any distress for any kind of rent may impound or otherwise secure the distress so made in such place or in such part of the premises chargeable with the rent, as shall be most fit and convenient for impounding and securing such dis- tress : and may appraise, sell, and dispose of the same upon the premises, in like manner and under the like directions and restraints as any person taking a distress for rent mav now do off the premises by virtue of 2 W. & M. c. 5, s. 2, or of 4 Geo. 2, c. 28." As to the form of notice of distress, see Woodfall's Landlord and Tenant, by Cole; M<><< v. Gallimore, 1 Dou^l. 279; Bullen on Distresses, 135 ; Wakeman v. Lindsey, 14 Q. B. G25; 19 L. J. Q. B. 166 ; Kerby v. Harding, 6 Ex. 234 ; 20 L. J. Ex. 163. It need not state when the rent became due. lb. Notice to the tenant personally is good. Walker v. Rumbal, Lord Raym. 53; 12 Mod. 76; Salk. 247. A landlord may distrain for one cause, and justify or (m) Express malice need not be proved, see ante, form 1, p. 505, note (/). See form Field v. Mitchell, 6 Esp. 71. for excessive distress where a portion of the (h) Add any special damage for loss of goods belonged to a third person, Bail v. business, &c. As to adding a count in trover, Mellor, 19 L. J. Ex. 269. DECLARATIONS IN TORT. DISTRESS IkJR RENT. Obs. avow for another. See Crowther v. Ramsbottom, 7 T. R. 658 ; Gambrell v. ! of Falmouth, 4 Ad. \ E. 73. Notice where growing corn is distrained, ll Geo. 2, c. 9, s. 8. For that the plaintiff was tenant to the defendant of a messuage and prem- ie 3, at a rent payable by the plaintiff to the defendant, and the defendant d the L r '»»l- of the plaintiff in the said messuage and premises as a dis- - for rent in arrear, and wrongfully sold the same as such distress towards satisfaction of the rent, for which the same were so distrained, and of the costs ami charges of the said distress, and of the appraisement and sale of the said goods, without having given to the plaintiff notice of the distress, and of tho cause of taking the same, or left such notice at the chief mansion-house or other most notorious place on the said premises five days before the sale of the said goods, contrary to the statute in that behalf. [Add special dam- age, (o)] 5. For not selling the Goods for the Best Price. Obs. — This action is founded on 2 W. & M. sess. 1, c. 5, s. 2, cited ante, 507, Obs. to form 1. The price at which the goods were appraised will be presumed to be the best until the contrary appear. Walter v. Rumbal, 4 Mod. 390 : Com. Dig. Distress, D. 8 ; 2 Stark. Ev. 391, note (y), 3d ed. Reasonable care and diligence must be used to obtain the best price, and perhaps the landlord is not justified in parting with the goods for a price manifestly inadequate to their value, although no better be offered at the time, but ought, if only such a price be offered, to defer the sale by analogy to the instance of a sheriff selliii"' under a venditioni exponas. Keightly v. Birch, 3 Camp. 521 ; Barnard v. Leigh, 1 Stark. R. 43. In Poynter v. Buckley, 5 C. & P. 512, Tindal C. J. allowed a plaintiff, upon the above form of count, to prove that the goods were improperly lotted, and were allowed to stand in the rain. In general, no particular order is required by law to be observed on the sale of goods of different descriptions, as that beasts of the plough should be postponed to other goods, and the sale of such beasts first does not furnish a cause of action. Jen- ner v. Yolland, 6 Price R. 5 ; 2 Chit. R. 167. A landlord who has distrained his tenant's hay, made on the premises, and has sold it, subject to a condition that it shall be consumed on the premises, by reason of Avhich it sold for less than the usual price, is liable for not selling for the best price, although the tenant was under covenant to consume all hay on the premises. Ridgway v. Lord Stafford, 6 Ex. 404 ; 20 L. J. Ex. 226. For that the plaintiff was tenant to the defendant of a messuage and prem- ises, at a rent payable by the plaintiff to the defendant ; and the defendant seized the goods of the plaintiff in the said messuage and premises as a distress for rent in arrear, and sold the same towards satisfaction of the said rent, and of the costs and charges of the distress, and of the appraisement and sale of the said goods* but did not sell the same for the best price that could have been gotten for the same, contrary to the statute in that behalf. [Add special damage. {p)~\ 6. For selling without having the Goods appraised by Two Ap- praisers, (q) Same as Form 5 to the *], without causing the said goods to be duly ap- (o) Actual damage must be proved, other- ( p) See ante, 508, note (o). wise the plaintiff is not entitled even to nomi- (q) See form, &c. Yates v. Tearle, 6 Q. B. nal damages. Sec Ropers v. Parker, 25 L. J. 283. The action is founded on 2 W. & M. C. P. 220 ; 18 C. B. 112; Lucas v. Tarleton, sess. 1, c. 5, s. 2. It seems, on the con- 27 L. J. Ex. 246 ; 3 H. & N. 116. struction of 57 Geo 3, c. 93, that two ap- DECLARATIONS IN TORT. DISTRESS FOR RENT. 509 praised by two sworn appraisers, contrary to the statute in that behalf. \_Add special damaged] 7. For making Extortionate Charges and selling the Groods for them, (r) Child v. Chamberlain, 5 B. & Ad. 1049. 8. For not taking due care of Goods distrained, (s) For that [as in Form o, to the *], and by the said sale satisfied the said arrears of rent and the charges of the said distress and sale ; and the defend- ant under the said distress had the charge and possession of the said goods until the sale, and after the said sale had the charge and possession of the remainder of the said goods not then sold ; yet the defendant did not, while the said goods were in his charge and possession, and until the said sale, take proper care of the same, nor did after the sale, and until the return of the said remainder of the said goods, take proper care of the said remainder, so that the goods so sold as aforesaid were greatly injured and deteriorated in value, and did not sell for so much as they otherwise would have done, and the said goods that remained unsold were injured and deteriorated in value, and were returned to the plaintiff greatly damaged. 9. Against a Distraining Broker for not giving the Tenant a Copy of the Charges of the Distress. (£) Hart v. Leach, 1 M. & W. 560. 10. For not leaving the Overplus of the Proceeds of a Distress with the Sheriff, $c. (ii) For that the plaintiff was tenant to the defendant of a messuage and prem- praisevs are in all cases necessary. Allen against a broker who receives excessive v. Fricker, 10 Ad. & E. 640; Bishop v. Bry- charges, although the tenant had obtained ant, 6 C. & P. 484. The broker distrain- time to prevent a sale. Hills v. Street, 5 ing should not be one of the appraisers. Bing. 37. The 57 Geo. 3, c. 93, regulates Lyon v. Weldon, 2 Bing. 334; Westwood v. and fixes the charges where the sum due docs Cowne, 1 Stark. Kep. 172; Bull. N. P. 81. not exceed £20, though the goods are ap- The latter should be sworn before the con- praised at a loss. Child v. Chamberlain, 5 B. stable of the parish in which the distress is & Ad. 1049 ; 6 C. & P. 213. Where the rent made; Avenell v. Croker, M. & M. 172; and exceeds £20, the reasonableness of the charges the constable should attend at the time of the is a question for the jury. lb. See Lyon v. appraisement, and then, before it is made, Tomkies, supra. should administer the oath. Kenny v. Mav, (s) See Evans v. Wright, 2 H. & N. 527 ; 1 M. & Rob. 56. See a form on 13 Eliz. c. 37, 27 L. J. Ex. 50. for distraining by other persons than by bai- (t) See a form in extenso in the last edition liffs duly sworn. Child v. Chamberlain, 6 C. of this work, p. 542. By 57 Geo. 3, c. 93, & P. 213 ; 5 B. & Ad. 1049. The value of s. 6, every broker or other person who shall the goods, minus the arrears of rent, is the make and levy any distress whatsoever shall measure of damage, with special damage if give a copy of his charges, and of all the laid and proved. Knotts v. Curtis, 5 C. & P. costs and charges of any distress whatsoever, 322 ; Biggins v. Goode, 2 C. & P. 364. signed by him to the person or persons on (r) Form in extenso, see the last edition of whose goods and chattels any distress shall this work, p. 539. A similar count was some be levied. A landlord who does not person- few years ago adopted in practice; and see ally interfere in the distress is not liable for per Lord Abinger C. B. Lyon v. Tomkies, the neglect of his broker in not delivering a 1 M. & W. 608. It was there held that the copy of his charges. Hart v. Leach, 1 M. & reasonableness of the charges might be ques- W. 560. See 1 W. & M. c. 12, s. 2, which tioned upon a count for not leaving the over- enacts that a copy must be given if sum dis- plus with the sheriff. See form 10, post. An trained for is under £20. iction for money had aud received also lies (u\ This action is founded on 2 W. & M. 510 DECLARATIONS IN TORT. DISTRESS FOR RENT. . at a rent payable by the plaintiff to the defendant; and the defendant . ,1 tin- goods of the plaintiff in the said messuage and premises as a distress for rent in arrear, and sold the same as such distress towards satisfaction of the rent, for which the same were so distrained, and of the costs and charges of the said distress, and of the appraisement and sale of the said goods, for a Bum more than sufficient to discharge the said arrears, costs, and charges, and the defendant received the said sum, but did not leave the overplus of the said Bale in the hands of the sheriff or under sheriff of the county, or of the constable of the parish, hundred, or place where the said distress was taken, although a reasonable time for that purpose elapsed, contrary to the statute in that behalf. [Stale special damage. {x)~\ 11. For distraining Beasts of the Plough and Sheep, there being other Sufficient Goods. Obs. — " Unqore est purveu que null home de religion n'autre, soit distreinte per bestes, que gai^nent sa terre, ne per ses brebis, taunt come lem trove autre destresee et autres chateux suffisant." 51 H. 3, st. 4. See form of declara- tion, Keen v. Priest, 28 L. J. Ex. 157; 2 Chit. PI. 535, 7th ed.; Burn's J. tit. " Distress;" Bradby, by Bullen, 193. This action does not lie if there were reasonable ground, upon the appraisement of competent persons, to suppose at the time that the other chattels upon the premises would not be sufficient, and the other effects need not first be sold to ascertain the fact. Je nner v. Yolland, 6 Price, 3; 2 Chit. R. 167. And beasts of the plough may be taken, if there be nothing else but growing crops. Pi.. .: - ; . 6 Ad. & E. 752. 16. For selling the Goods within the Five Days. o. Waddington, 18 L. J. Q. B. 250; 13 Q. B. 753. This is mded en ill-' equity of 2 W. & M. Bess. 1, e. 5, s. 2, fully cited, ante, form 1. 01 b. Trespass or trover will lie where an unripe crop of growing corn tal distress is sold within the five days, such sale being void. See I h, 3 I!. & Aid. -170. The five days given by the statute to re- plevy a distress for rent are to be reckoned exclusively both of the day of dis- - and the day of sale. Robinson v. Waddington, supra. 17. For a ving the Goods within a Reasonable Time after the Lapse of the Five Bays. . — Form. 8tc. 2 Chit. PL 542, 7th ed. This action is on the equity of 2 W. & M. 38. 1, c. 5, s. 2, and 11 Geo. 2, c. 19, s. 10, cited, ante, form 4, Obs. See Winterborne v. Morgan, 11 East, 395; Ludd v. Thomas, 12 Ad. & E. 12G. A isonable time is allowed by law after the five days to remove and sell. The reasonableness of the time is a question for the jury. Pitt v. Shew, 4 B. & Aid. 208. Of course, if the tenant consent verbally or by writing to the de- lay, be has no ground of action. See Harrison v. Bray, 7 Price, 610. 18. For selling a Growing Crop before it teas gathered and ap- praised. form, &c. 2 Chit PI. 543, 7th ed. This action is on 11 Geo. 2, c. 19, s. 8. See Owen v. Legh, 3 B. & Aid. 470; supra, form 16 ; see Proudlove v. alow, 1 Cr. & M. 326, as to the damage, which it appears must arise from the irregularity and no more. In such action with a count in trover the landlord was held entitled to deduct the rent due to him from the difference between the price which might have been obtained had the sale been regu- lar, and thai which was obtained under the irregular sale; so that where no ti h difference existed, from the crops having been sold for their full value, while the n nt due exceeded the produce of that sale, the tenant recovered inal damages only. lb. 19. For Belling more Goods than zvas necessary under a Distress for Rent. I ■■•in. co\ •_' Chit PI. 544, 7th ed. It would seem doubtful whether trover In Batchelor v. Vyse, 1 M. & Rob. 331, Tindal C. J. held that trover ( 1''J not lie • the sheriff to recover the value of goods sold in excess what was necessary to satisfy the execution; but it seems the court aon pleas inclined on a motion for a new trial to think that trover in mch a case. lb.; 4 M. & Sc. 552 ; and see Whit- lith, 1 M. & U. 193 ; 5 C. & P. 250. Where the overplus is not iff, Form 10, ante, 509, might be sustained. 20. For i nt /founding Sheep in an Improper Pound. Bignell >: Clarke, (y) 29 L. J. Ex. 257; 5 H. & N. 485; Wilder v. Speer, 8 Ad. & E. 547. »n w ho impounds cattle damage the place in which he impounds them is in a nd nt Id- peril to take care that fit and proper state, and is liable for the con- DECLARATIONS IN TORT. EXECUTORS, ETC. 513 DITCHES. See "Fences." EASEMENTS. Ob8. — See " Ancient Lights," " Common of Pasture," "Fences," "Support," " Watercourses," " Ways," " Trespass; " Prescription act, 2 & 3 W. 4, c. 71 ; ante, 479, and Obs. ante, 479-481. In general the declaration must show an obstruction in the place or thing wherein the plaintiff is entitled; and therefore a declaration for obstructing the plaintiff in his enjoyment of a right to take water from a cistern was held bad in arrest of judgment, be- cause it alleged that the obstruction consisted in wrongfully locking up a door leading to the cistern, without stating that the plaintiff bad any right to pass throuifh the door in question. Tebbutt v. Selby, 6 Ad. & E. 786; Man- ning v. Wasdale, 5 Ad. & E. 758. So a plea justifying a nuisance on the ground that the defendant had a twenty years' right of keeping a mixen on his own land, and thus to cause offensive smells, was held bad, because it did not allege the right to cause the smells to pass on to the plaintiff's prem- ises. Flight v. Thomas, 10 Ad. & E. 590. Disturbance of franchise, see 2 Chit. PI. 6:28, 7th ed. Form for obstructing a lodger in the use of a bell, knocker, outer door, &c. and law, Underwood v. Burrows, 7 C. & P. 26. See, generally, on the subject of " Easements," Gale on Easements, by Willes; [Washburn Easements, &c. Servitudes.] ELECTION. See "Parliament." ESCAPES. See post, « Sheriff. ' ' EXECUTORS AND ADMINISTRATORS. Obs. — See form of commencement by or against executors, ante, pt. 1, p. 13; by or against an administrator, ante, pp. 7, 8. By the common law the right to recover damages for an injury done to property or person did not survive to executors or administrators. But an executor, 4 Ed. 3, c. 7, or executor of an executor, 25 Ed. 3, st;it. 5, c. 5, or adminis- trator, 31 Ed. 3. stat. 1, c. 11, now has the same right of action for an injury to the personal estate of the deceased in bis lifetime, as the deceased would have had. Wheatley v. Lane, 1 Saund. 217, note (1). But this act does not ex- tend to injuries to the person or freehold of the testator. But a remedy as to the freehold is given by 3 & 4 W. 1, c. 42, s. 2, which enacts, •' that an action of trespass or trespass on the case, may be maintained by the executors or ad- ministrators of any person deceased for any injury to the real estate of such person committed in his lifetime, for which an action might have been main- tained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person." And by the same section actions may be brought against executors or admin- istrators tor injuries committed by their testator to real or personal property. [See 1 Chitty PL 77 ct seq. and notes, 100, and notes, for cases showing what sequences if it is not ; lb. ; [Brightman v. Against him for pound breach or rescue. Gnnnell, 9 Pick. 14 ; Adams v. Adams, 13 Smith v. Wright, [6 H. & N. 821 ;] 30 L. J. Pick. 384 ;] and if a distrainer abuses a dis- Ex. 313, where see a form for pound breach tress by working it, the owner may interfere or rescue, and prevent it, and no action can be brought vol. ii. 33 514 DECLARATIONS IX TORT. EXECUTORS, ETC. actions survive in the American states; Soule v. X. Y. & N. H. R. R. 24 i osylvania R R. v. McCloskey, 23 Penn. St. 526/] A- to injuries resulting in death, the 9 & 10 Vict. c. 93. s. 1 (Lord Campbell's oacts, • That, whenever the death of a person shall be caused by wrongful act, ueglect, or default, and the aet, neglect, or default is such as ,1,1. if death had nol ensued, have entitled the party injured to maintain trer damages in respect thereof; then, and in every such -.-. the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circum- is amount in law to felony." By s. 2. " every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death -hall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such don the jury may give such damages as they may think proportioned to the injury resulting from Buch death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury, by their verdict, shall find and direct." [See ante, 492, note (r). Statutes intended to attain a similar result have been passed in many of the American states. See Genl. Sts. Mass. c. 1G6, § 34; Richardson v. New York Central R. R. Co. 98 Mass. 85; N. V Acts of 1847, c. 450, and of 1849, c. 256. In Massachusetts, Maine. New Hampshire, Connecticut, and Rhode Island, the remedy is by indictment. In Maryland, the action must be brought in the name of the state, but is in form civil, and is for the benefit of the person entitled to damages. In most of the other states, as well as in England, the statutes authorize a civil action for damages in behalf of widow, child, or heir. But in all their different forms of proceeding the same end is to be attained, and substantially the same rules are to be applied as though they were civil actions for damages. Sargent C. J. in State v. Manchester & Lawrence R. R 52 X. II. 528, 547; State v. Railway. 58 Maine, 176. For form of indictment, and the averments necessary, see State v. Manchester & Lawrence R R 52 X. II. 528; Commonwealth v. Boston & Worcester R R Corp. 1 1 Cush. 512; Corey r. Bath, 35 X. H. 530. The right conferred, however, can be enforced onlv within the jurisdiction of the respective statutes. Richardson v. New York Central R. R. Co. 98 Mass. 85; Woodward v. Mich. Southern & Northern End. R. R. 10 Ohio St. 121; Whitford v. Panama R. R. 23 X. V. 465; tfeedham v. Grand Trunk R. R. 38 Yt. 294.] By the 27 & 28 Vict. c. 95, s. 1 (which is to be read together with Lord Campbell's act as one act), if there shall be no executor or administrator of the person de- ceased; or, if there being such executor or administrator, no such action, as in Lord Campbell's act mentioned, shall, within six calendar months after the death of Mich deceased person as therein mentioned, have been brought by and in tie name of his or her executor or administrator, then and in every such case such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been, if it bad been brought by and in the name of such executor or administrator; and every action so to be brought shall be for the benefit of the same person or persons, and shall be subject to the same regulations and procedure, a- nearly as may be, as if it were brought by and in the name of such executor or administrator. And by s. 2 it shall be sufficient if the de- fendant U advised to pay money into court, that he pay it as a compensation, in one sum, to all persons entitled, under Lord Campbell's act, for his wrongful act. neglect, or default, without specifying the shares into which it he divided by the jury: and if the said sum be not accepted, and an taken by the plaintiff as to its sufficiency, and the jury shall think the ..u,i,. sufficient, the defendant shall be entitled to the verdict on that is- sue. B) B. :; of Lord Campbell's act, not more than one action shall lie for and in respeel of the same suhject-mattcr of complaint, and the action must ommenced within twelve months after the death. By s. 4, the plaintiff on the record shall deliver with the declaration a full particular of the person or persona for whom and on whose behalf the action is brought, and of the DECLARATIONS IN TORT. EXECUTORS, ETC. 515 One. nature of the claim in respect of which damages shall be sought to be recov ered An action cannot I,, maintained andel this act on belatf of a batSS child. Dickenson o. North Eastern Kv. Co. 2 II. & < . 785 Under- tins act the defendant is „„, liable, except in cases where the deceanai toe deceased s negligence, or d there was tributory neebVence the o£- ass .if hi n?f -; ;,"«■: . ; :"" ''• w,h Ea8tern Kv - c °- 28 l. j. q. b now. i r. «, u Hlntlord v. Panama I. R •>•( V V ice • v n ,< , Trunk R R 18 V* o<» i • > ' , '" , ' : Needham t>. Grand 315] ' Penns y lv ama R- R- ft Henderson, 51 Penn. St. ^Ste g can e be a mT' ^ ^ T T M t0 in J uries " f whi <* * Pecuniary !,7fw?, • m;,1( ' : " ul ^ nn °t take into their consideration the mental Bntoring occasioned to the .survivor. Blake v. Midland Ry. Co 18 Q.B v 21 L J. Qli. 233 ; [P vm ... Great Northern Ry. Co. 4 B. & S 3% T ' worth v. Johnson 4 H & NT r.^-i ■ v; i * „ . . lX ' • •'• " i ^»<'k- Sr, tv> a r I o d ' Nlc kerson v. Harriman, 38 Maine 279 1 esuact ot the deceased from his bem<» una if to ur..n ' ' ' ' ■ Vln ''■ Grea < Northern y. Ex 87 • reH&N'li' -i v T ' Q- B - « 9 - »»'« Riley »■ Baxendale, 30 L.J. K^lfctf "^W^ ^&S R° See pa) ; Lyons v. Merrick, 105 Mass, 71, 75, 76 ; Cate v. Cate, 50 N. H. 146.] The remedy being against the occupier of the land. Cheetham v. Hampson. 4 T. R. 318. But where cattle had strayed from a field through a fence, which A. was liable to repair, and ultimately strayed into A.'s close, and were there taken damage feasant, it was held that A. was in the wrong, the trespass of the cattle being the re- sult of his own negligence in not keeping the fence through which they first passed in repair. Singleton v. Williamson, 31 L. J. Ex. 17 ; [7 H. & N. 410. See Lyons v. Merrick, 105 Mass. 71 ; Cate v. Cate, 50 N. H. 144, 146.] If a man dig a pit in his own close, he is not under any obligation to fence, it, but if the pit be substantially adjacent to a highway, he is bound to do so. See Barnes v. Ward, 9 C. B. 392 ; 19 L. J. C. P. 195 ; Hardcastle v. South Yorkshire Ry. Co. 28 L. Ex. 139 ; [4 H. & N. 67 ; Jordin v. Crump, 10 M. (b) The declaration need not negative the the action is brought. Barnes v. Ward, 9 C existence of any other relations entitled to B. 392 ; 19 L. J. C. P. 195. recover, other than those on whose behalf DECLARATIONS l\ TORT. FTSH1 n \',n ) Mi; Obs. & W. 988 ; Hounsell v. Smyth, 7 C B tf . 8 see Bowland v. Vincent, 10 Mi I 87] ; Kn. sec, also, /><>f making and ma conjunction with that act, the same rule of law affecting private individual I ,-t & \\ Ry. Co. \2 C. I'.. 160 : Manchester Stc, r. As to ditches, no man making a ditch can i to the very extremity of bis own \ ■ M it has been held in Massachusetts thai partit placed on the lands of both parties equal The venue is local. See, generally, Ga 2 Chit, on PL 7th ed. ; Powell o. Salisbury, 2 "> \ - 1 H 1 B. & Aid. 59. For forms, sit Marfell v. South W 'al. • I: don & South Western Ry. Co i II. ,\ \. : .• ; , North Midland Ry. Co. 16 Q. B. 610. S . I'. fj Ry. Co. 8 C. 15. X. S. S68 : Sharrod o. Londi 4 Ex. 580. FERRY Obs. — See Hussey v. Field. 2 Cr., M. \ R I 12, for a form for the plaintiff to prove thai he was in possession of th« when the cause of action arose. Peter k id B - ' v. Harris, 2 Y. & J. 285. And it i< nol ment of any specified stun for passage-money. 703. The owner of a terry musl have the right I" u of the water for the pur] ■ of embarking his have anv property in the Boil. lb. Blacketer v. Gillett, 9 I , B. 26; 19 L J. C P. B. 721 ; 17 L. J. Q. B. 823; Newt.,., r. Cubitt, J. C. P. 176. See a form for Ic carry, Walker v. Jackson, 10 M. & W. 161 : LI L .1 I The venue is local. \CounJt for disturbing the Plaintiff"* F Venue local.'] That the plaintiff wa Ferry, for the carriage [of fool | >>el tie r i ver f r0 m to , taking for the earria- goods] across such ferry certain reasonable I »£•*«; : « defendant wrongfully disturbed the plaintiff in t 1 by carrying divers [foot-passengers and tie- river near to the said ferry of the plaintiff, whereby the pi profits of his said ferry.] • ■ risilKKY AND FISHING. -ad fiab* II Obs. Trespass may be maintained f'T erv though no fish are taken, and though i H Bailey 8 Q. B. 1000 : in error, i Q B Steam Navigation Con pan; * S L. J. Q. I for all the inhabitai parish I a bad custom. Bland - I * " : :i: - <•"••• -' ' 155, note. The venue is local. Where a plaintiff, while fishing for pi 518 DECLARATIONS IN TORT. iRAUD. Obs. with a net. and the defendant, by rowing his toat to the entrance, disturbed the fish and prevented the capture, it was held that he could not maintain trespass, a~ he did not prove any special custom of the fishery. Young v. Hichens, 6 Q. I!. 606. As to the whale fishery, and where a fish may be considered fast, see Fenmngs v. Grenville, 1 Taunt. 241 ; Littledale v. Scaith, lb. 243, note ; Hogarth v. Jackson, 2 C. & P. 595 : Skinner v. Chapman, 1 M. & M. 59, note. Where a statute confers a right, and annexes a penally for its infringement, no rem- edy is available to tin- party aggrieved but that prescribed by the statute. Stevens v. Jeacocke, 11 Q. B. 741 ; 17 L. J. Q. B. 163. See a form of trespass in a fishery, Mannall v. Fisher, 5 C. B. N. S. 856. See a form for injuring oyster beds, Mayor of Colchester v. Brooke, 7 Q. B. 339 ; 15 L. J. Q. B. 59. See the statutes 24 & 25 Vict. c. 109, applicable to salmon fisheries in England ; 29 & 30 Vict. c. 85, applicable to Great Brit- ain ; and 29 & 30 Vict. c. 97, applicable to Ireland. [See Garnett p. Back- house, L. R. 3 Q. B. 30 ; Rawstorne ». Backhouse, L. R. 3 C. P. 67.] See a form in trespass for throwing down a weir appurtenant to a fishery, Williams v. Wilcox, 8 Ad. & E. 314. [Count for Tresjiass to Plaintiff's Fishery. Venue local.'] That the defendant, on divers days and times, broke and entered the several fishery of the plaintiff in the river , and fished in the said fishery for fish, and chased and disturbed the fish therein, and caught, took, and carried away and converted to his own use divers quantities of the plaintiff's fish therein. Like counts. Smith v. Kemp, 2 Salk. 637 ; Richardson v. Mayor of Orford, 2 H. Bl. 182.] FIXTURES. See post, " Landlord and Tenant." FRAUD. Obs. — Either an action on contract or tort lies for the breach of an express war- ranty. Williamson v. Allison, 2 East, 446. See ante, "Warranty," 256 el seq.; [Fisk v. Hicks, 31 N. H.535, 540, 541 ; Webster v. Hodgskins. 25 N. H. 128, 142; Cooper v. Landon, 102 Mass. 58, 60.] The rule is now settled that, "Where upon the sale of goods the purchaser is satisfied, without re- quiring a warranty, he cannot recover upon a mere representation of the quality by the seller, unless he can show that the representation was bottomed in fraud ; if, indeed, the representation was false to the knowledge of the party making it, this would, in general, be conclusive evidence of fraud ; but if the representation was honestly made and believed at the time to be true by the party making it, though not true in point of fact, this does not amount to fraud in law ; the rule of caveat emptor applies, and the representation it- self does not furnish a ground of action." Ormrod ». Huth, 14 M. & W. 664. See Horsfall v. Thomas, 1 H. & C. 90 ; 31 L. J. Ex. 322 ; [Mahurin v. Hardin", 28 N. H. 128 ; 1 Chitty Contr. (11th Am. ed.) 639, 640; Childers v. Woofer, 2 El. & El. 287 ; Behn v. Kemble, 7 C. B. N. S. 260 ; Pettigrew v. Chellis, 41 N. H. 95 ; Page r. Parker, 40 N. H. 47; S. C. 43 N. H. 363 ; Bicrelow C. J. in King p.Eagle Mills, 10 Allen, 548,551,552; Collins v. Evans, 5 Q. B. 826 ; Attwood v. Small, 6 CI. & Fin. (Am. ed.) 232, and notes; Colt J. in Milliken v. Thorndike, 108 Mass. 385 ; Stone v. Denney, 4 Met. 151 ; Pa^e v. Bent, 2 Met. 371 ; Hanson v. Edgerly, 29 N. H. 343 ; Tryon v. Whitmarsh, 1 Met. 1 ; Russell v. Clark, 7 Cranch, 69 ; Lord v. God- dard, 13 How. (U. S.) 196 ; Weeks v. Burton, 7 Vt. 67 ; Young v. Covell, 8 John. 25; Boyd v. Brown, 6 Barr, 810; Marshall V. Gray, 47 Barb. 414; Staines v. Shore', 16 Penn. St. 200 ; Taylor v. Frost, 39 Miss. 528 ; Holmes DECLARATIONS IN* TORT. FBAUD. 5ig Obs. r. Clark, 10 Iowa, 423 ; Bendnrant v. Crawford, 22 Iowa, 10: Mien » Wan maker, 2 \ room ,870 : Morton v. Scull, 23 Ark. 289; Bond p. Clark':;. Vt. 577; Peers v. Davis, 29 Missou. L84 ; Zebner v. Kipler, 16 [nd 29 bimar p. Canaday, .53 X. V. 298, 306, 807; Collina p. Denison, 12 Met 549 "An action cannot be supported, for telling a bare naked lie, where no lose or damage is caused ; bul if ii be attended with damage, it then becomes the subject of an action." Pasley v. Freeman, 3 T. R. 65 ; 2 Smith's L. Cases; pubbardJ.inMedbury p. Watson, 6 Met. 246 ; Tryon p. Whitmarsh, i Met! 1; Colt J. m Randall p. Hazelton, 12 Allen, 112,414 et sea. « Tlw «,•«,•«. meno the charge is, that the plaintiff has been deceived to his hurt; nol hat the defendant has gained an advantage." Wells J. in Fisher p. Mellen 108 Mass. 505 ; Stiles p. White, 11 Met. 856.] Where a representation, false to the knowledge of A., has been made by him for his benefit to B. and is acted on by B. to B.'s injury, an action will Ii,- at his suit a-ainst A. Ha.l.-v v. Walford, 9 Q. B. 197 ; 15 L. J. Q. ii. 869. See RawUnls p. BelL I C B 951 ; Langridge v. Levy 2 M. & W. .52:, ; Levy v. Langridge, 4 M. & W. •>..* , Bel.., r. Kniible, i C B. N. S. 260. And if such false representation be communicated by B. to C. with notice to A., and C. acts upon it, an action will be by C. against A. Pilmore v. Hood, 4 Bing. X.C. 97. [See Irvine p Thomas, 18 Maine, 418; Paddock v. Strobridge, 29 Vt. 470; Crocker v Lewis, 1 Sumner, 1, 8; Bowens v. Johnson. 10 Sm. & M. 169: Hunt v. iiT'ui J"'"' 1 :' : ' : n TI ';"" '; Bi - lan ' 1 - 8 Kx - 726 ' 731 ' CtariiKd «>. Bates, 2 STn n '\ ; Bedford ».Bagshaw, i II. & N. 538; New Brunswick &c. K. Co. v. Conyheare. 9 II. L. Cas. 711.] Where there is no express warranty but a representation false to the knowledge of the maker of it, an action lies tor the fraud and deceit, Powell p. Edmunds. 12 East, 11 ; Mever r J'v.rtli 4 Camp. 28 ; Onnrod v. Huth, ubi sup. So, if the false representation suh- ?> o n vt? '° th(> gmn S credit for g° ods - w *de ''■ Tatton, 25 L. J. C r. 240. [Ihe presumption, in the absence of evidence to the contrary, would be that the vendor did rely on the representation. Holbrook p. Hurt. 22 ttck. 546.] If a party makes a representation for a fraudulent purpose, and intending to induce another to do something which, when done, is to his preju- dice, an action will he ; and it is not necessarj that the defendant knew the representation to be false if he communicated it for a deceitful purpose Tav- lor v. Ashton, 11 M. & W. 401; 12 L. J. Ex. 363 ; [2 Chitty ('„ur. (11th Am. ed.) 1044, 1045, and note (,/).] A statement is fraudulent it made dis- honestly or with a reckless ignorance of whether it is true or false. Behn v Burness, 32 L. J. Q. B. 204; [3 B. & S. 751 ; ffazard o. [rwir is lVk 95* stone v. Denny, 4 Met. 151 ; Ames J. in Cooper p. Loverine, 106 Mass 79 : Brown v. Castles. 11 Cush. 348 ; Attwood p. Small. 6 CI. & Fin. | \,„ ed ) 233, note (1) and cases cited to this point; Fisher p. Mellen, 108 Mass. 503 o06 ; Pager. Bent, 2 Met. 371 ; Hammatt v. Emerson, 27 Maine, 3<>.s ;;-,; ■ Harding v. Randall, 15 .Maine, 332; Smith v. Mitchell, 5 Ceo. 158; Mitchell v. Zimmerman, 4 Texas, 7.5 ; Bennett v. Judson, 2] X. Y 288 : Wilcox r The Iowa Wesleyan University, 32 Iowa, 367 ; Rawlins p. Wickham 3 De g' & J. 313; 2 Chitty Contr. (11th Am. ed.) 1045, note (») an d cases cited; Atwooil v. Wright, 29 Ala. 346; Craig p. Ward, 36 Barb. :;7 7; Sharp v New York, 40 Barb. 2.56; Evans v. Edmonds, 13 C. B. 777; Mason «■. Chapl pell, 15 (.rattan. 572; Cabot P. Christie. 42 \'t. 121, 126. But, if the false representation was made bona til. , the defendant believin* in its truth, the plaintiff cannot maintain an action. Shrewsbury v Blount 2 M. & G. 47.5; Rawlins p. Wiekham. 28 L. J. Ch. 188; [8 De G. & J. 304-1 Shmu. Crouch, [1 De G. , F. &J. 518;] 29 I, J. Ch. 278; [2 Chitty Contr. (llth Am ed.) 1044, and cases in note ( m ).] And an untrue representation not embodied in a contract, will not render it void unless it also be fraudu- lent Cornfoot v. Fowke, 6 M. & W. 858; Collins p. Evans .5 O 15 *•»„. Childers p. Wooler, 29 L. J. Q. B. 136 : [2 El. & El. 287.] In order to maintain the action, it must be proved that the plaintiff acted on the ta.thot the False representation, and sustained damage arising therefrom Eastwood v. Bain 28 L. J Ex. 74. [If the plaintiff cho?e to act on his own judgment, with full knowledge or mean- of knowledge of the facts he cannot be heard to Bay he was deceived by the defendant's repiesentations respectina them. Attwood v. Small, 6 CI. & Fin. (Am. ed.) 233, and note (2) an,] 520 DECLARATIONS IN TORT. FRAUD. Obs. cases cited. Hoitt v. Holcomb, 32 N. H. 202-205 ; Aberaman Iron Works t; Wakens, L. R. 4 Ch. Ap. 101; Veasey v. Doten, 3 Allen, 380: Stephens v. Orman, 10 Florida, 9 ; Mooney v. Miller, 102 Mass. 220; Dickinson v. Lee. 106 Mass. 557; 2 Chitty Contr. (11th Am. ed.) 1039, and note (z), 1040, note (a). But see, how far one, who has received from another a positive representation respecting a material fact, is bound to inquire into the truth of it, 2 Chitty Contr. (11th Am. ed.) 1041, and note (c); Attwood v. Small, 6 CI. & Fin. (Am. ed.) 233, note (2); Rose v. Hurley, 39 Ind. 83; Mead i.\ Bunn, 32 N. Y. 275 ; Vandewalker v. Osmer, 65 Barb. 556.] There is no necessity for any privity between the parties. Gerhard v. Bates, 2 El. & Bl. 746; 22'L. J. Q. B. 364'. [See Thomas v. Winchester, 2 Selden. 397 ; David- son v. Nichols, 11 Allen, 514; McDonald v. Snelling, 14 Allen, 290, 295.] The alleged damage must arise from the alleged wrongful act. Collins v. Cave, 6 H. & N. 131 ; 30 L. J. Ex. 55. As to false representations made by directors, see Scott v. Dixon, 29 L. J. Q. B. 69, note; Clarke v. Dixon, 7 C. B. N. S. 453; 28 L. J. C. P. 225; Bedford v. Bagshaw, 29 L. J. Ex. 59 ; [4 H. & N. 538.] As to false representation of authority by agents, see Collen v. Wright, 8 El. & Bl. 64 7 ; 26 L. J. Q. B. 147; 27 lb. 215; Fow v. Davis, 7 El. & Bl. 220; 30 L. J. Q. B. 257; Oxenham v. Smythe, 6 H. & N. 690; 31 L. J. Ex. 110; Hughes v. Graeme, 33 L. J. Q. B. 335; [ante, 45, note (c).] False and fraudulent representation made by an agent do not affect the principal unless the principal adopts them with knowledge. Udell v. Atherton, 7 H. & N. 181; 30 L. J. Ex. 337; [Bennett v. Judson, 21 N. Y. 238 ; Crans r. Hunter, 28 N. Y. 389; Mundorff r. Wickersham, 63 Penn. St. 87; Haseler v. Le- moyne, 5 C. B. N. S. 530; Barvvick v. English Joint Stock Bank, L. R. 2 Ex. 259; 2 Chitty Contr. (11th Am. ed.) 1036, and note (h); 1 Chitty Contr. (11th Am. ed.) 281, note (/), 291, and notes («) and (/«) ; Grant v. Beard, 50 N. H. 129. As to the effect of the fraud of an authorized agent in negotiating a contract on behalf of his principal, see ante, 392.] As to the use of trade-marks, see 25 & 26 Vict. e. 88 ; and see The Leather Cloth Co. v. The American Cloth Co. 33 L. J. Ch. 199 ; [11 H. L. Cas. 523;] M' Andrew v. Bassett, 33 L. J. Ch. 568; Hall v. Burrows, [10 Jur. N. S. 55;] 33 L. J. Ch. 204; [Perry v. Truefitt, 6 Beav. 66 ; Seixo r. Provezende, L. R. 1 Ch. Ap. 192, 196; 2 Chitty Contr. (11th Am. ed.) 1043, note (i) ; Bradley v. Norton, 33 Conn. 157; Emerson 0. Badger, 101 Mass. 82; Edel- sten t\ Edelston, 1 De G., J. & S. 185, and cases in note (z) ; Walton v. Crowley, 3 Blatchf. C. C. 440; 10 Am. Law Reg. N. S. 694, 707, 708, in note; Hostetter v. Vowinkle, 1 Dillon, 329; Burnett v. Phalon, 3 Keyes, 594; Lord Westbury L. C. in Leather Cloth Co. v. American Leather Cloth Co. 4 De G., J. & S. 137, 139.] As to what amounts to fraud in obtaining a deed, see Spencer v. Hardley, 4 M. & S. 414; ante, pt. 1, p. 392. A contract procured by fraud is voidable only at the election of the party defrauded ; Murray r. Mann, 2 Ex. 538; 17 L. J. Ex. 256; and if a sale of goods be not avoided before the goods are re- sold, the property passes. White v. Garden, 20 L. J. C. P. 1K6; [10 C. B. 919; Kingsford v. Merry, 11 Ex. 577, 579; Titcomb v. Wood, 38 Maine, 561; Stevenson v. Newnham, 13 C. B. 285, 303; Parke B. in Powell v. Hoyland, 6 Ex. 67, 72; Load v. Green, 15 M. & W. 216, 219 ; Bean v. Smith, 2 Mason, 252; Hall v. Hicks, 21 Md. 406; Hardman v. Booth, 1 H. & C. 803; Oakes v. Turquand, L. R. 2 H. L. 325; Sinclair v. Healy, 40 Penn. St. 417; 1 Chitty Contr. (11th Am. ed.) 566, and note (e) ; Williams v. Given, 6 Grat- ton, 268.] But where goods are delivered to one person upon a fraudulent representation that he is purchasing for or is another person, no property passes, and the goods or their proceeds may be recovered from a bond fide holder for value. Higgons v. Burton, 26 L. J. Ex. 342; Hardman v. Booth, 32 L. J. Ex. 105; [1 H. & C. 803;] and see Milne v. Leisler, 31 L. J. Ex. 257. A fraud of the testator is a good answer to an action by the executor Connop t;. Levy, 11 Q. B. 769; 17 L. J. Q. B. 125. DECLARATIONS IN TORT. FRAUD. 1. Agaimt the Seller of Good* / r a Fait W For that the defendant, I. \y and fraudulent]} to be then sound, induced the plaintiff to purchase the same fi he then paid to the defendanl ; yel the said hone was not lound, i tin ant then well knew, (/) whereby the -aid hone was a to tho ; and he was put to expense, and incurred lose in keeping and reselling tl, [la. Against the Seller of Goods for falsely he the thru, r. And the plaintiff says the defendant -.Id to him ten b induce the plaintiff to buy the Bame the defendant falsely repi him that said coffee was the property of the defendant ; and the plaintiff, !•• that said representation was true, waa thereby indaced to pm purchase said coffee, and paid therefor to the defendant tin- mm i I hun- dred dollars; and tin: said coffee waa not tin- property of ||„. ,|,;. odant, wi the defendant then knew, but waa the property of on.- A. .1.. who ha the same from the plaintiff. 16. Against Seller of Ohattt il / ■/■ Fa '■■■ R And the plaintiff says the defendant sold him ■ hoi which ■ '■ tiff paid him one hundred dollars ; and to induce the plaintiff to buj the defendant falsely represented to the plaintiff that said h far as the defendant knew; and the plaintiff, believii was true, was thereby induced to buy, and did buy said b< horse was not sound, but had a certain di8ease called , which ant then knew.] 2. For using Fraudulent Means to prevent the Plaint eovering the Unsoundness of a II '■;! the /' the Plaintiff. (e « . 1. and I (d) See a form for exhibiting false sam- ples, ami thereby inducing plaintiff to buy, Ac Ormrod v. Hath, 14 ML & W. 651 ; [for M.ihurin i Belling a cargo of wheat by a false reprcsen- 131 I N. 1 tation that il accorded vritb report and sim- ples, Russell t». Nicolopulo, 9 C. B N. S. without i 362; for selling the car.'" ol a ship by n form false representation that the ship was on u voyage, Risboorg v. Bruckner, 3 C. B N S. 812; and a form in tort, that manufact- till ured goods were fit far the purpose for which II I \ they were bonght, Jones v. Bright, 5 II M 533"; for manufacturing a rope for citic purpose, which was not Bl for that pur- by frnudul pose, and which broke, Brown I ton, 2 M. & G. 279 ; ante, 260, note (/). 261, il note (h) u " 522 DECLARATIONS IN TORT. FRAUD. induced the plaintiff to purchase the same for £ then paid to the defend- ant, and the said horse afterwards died of the said disease, and was lost to the plaintiff, whereby the plaintiff lost the said £ and was put to expense in keeping and endeavoring to cure the said horse. 3. For Deceit in selling a Picture as painted by a particular Master, which it was not. (K) For that the defendant, by falsely and fraudulently representing to the plaintiff that a certain picture was painted by , induced him to purchase the same for £ , which he paid to the defendant ; yet the said picture was not painted by , as the defendant then well knew, whereby the plaintiff lost the said £ . 4. For inducing Plaintiff to purchase Defendant' s Practice as a Sur- geon, §c. by misrepresenting the Extent of the Business, fyc. (i) For that the defendant was possessed of a shop, and the lease thereof, and carried on the business and profession of a surgeon and apothecary therein, and was also possessed of fixtures, drugs, medicines, and stock in the said shop ; and the defendant, by falsely and fraudulently representing to the plaintiff that the defendant's business and practice were more extensive than they really were, and that the defendant made £ per annum by the said business and practice, and that he had as many as 400 patients, as such surgeon and apoth- ecary [add any other false representation"], induced the plaintiff to enter into a certain agreement with the defendant, whereby the plaintiff purchased the said practice and business with the said fixtures, drugs, medicines, and stock, and also took an assignment of the said lease for £ , and paid the same to the defendant ; yet the defendant's business and practice produced him less than £ per annum, and the defendant had not as many as 400 patients [nega- tive the false representations'], as the defendant well knew, whereby the plain- tiff lost the said sum of £ , and the said business and practice, and lease of the said premises were of no value to him, and he has lost the expenses incurred by him in endeavoring to carry on the same. 5. For falsely representing to the Purchaser of a Lease and Fix- tures that the latter were the Vendor's Property, (k) For that the defendant was possessed of a messuage by virtue of a lease thereof for years unexpired, and also of fixtures in and upon the said messuage ; and the defendant, by falsely and fraudulently representing to the plaintiff that the said fixtures were the property of the defendant, and that (h) Power v. Barham, 4 Ad. & E. 473; Mummery v. Paul, 1 C. B. 315; 2 D. & L. 7 C. & P. 350. 582. According to Dobell v. Stevens, supra, (i) See forms of declaration for misrep- an action lies for a fraudulent misrepresenta- resenting the business of a public house tion, although there be a written agreement purchased by the plaintiff of the defendant, between the parties, not noticing such rep- Dobell v. Stevens, :i B. & C. 623; Meyer v. resentation. See D'Aranda v. Houston, 6 Everth, 4 Camp. 22; Pewtriss v. Austin, 6 C. & P. 511 ; Pearson v. Wheeler, R. & M. Taunt. 522 ; Roles v. Davis, 4 H. & N. 484 ; 303 ; Ormrod v. Huth, 14 M. & W. 664. 28 L. J. Ex. 287; Richardson v. Dunn, 8 (k) See a form for fraudulently represent- C. B. N. S. 655 ; 30 L. J. C. P. 44; the sale ing that land was unincumbered, whereby of a baker's business, Tavlor v. Green, 8 the plaintiff was induced to become the pur- C. & P. 316; ditto of a potato salesman, chaser. Sikes v. Wild, 30 L. J. Q. B. 325. DECLARATIONS in rOBT. FRAUD. he was entitled to dispose of the said lease and the -aid fixtun plaintiff to buy the defendant's unexpired interest in ili«- said fixtures, for £ , which the plaintiff paid to the defendant; pel said fixtures were not the property of the defendant, n<»r was he ■ sell the same, as he well knew. And the plaintiff, after thi Bald, lease, surrendered and yielded up the said messuage, and ws and did surrender, and yielded up the said fixtures t" A. B., then I* ground landlord of the said messuage as and being ti\' freehold, and which could not be lawfully removed, without rec< iviii or compensation for the same, whereby the plaintiff lost the — . 6. For selling to the Plaintiff a Policy of Ineur thick thi l> fendant had fraudulently effected on th\ L anotht P (his Debtor), and which the Tnsuranct Offi refused I See a form in the 2d edition of thi> work, p. 5 I REFERENCES TO OTHER FORMS, &c. 1. By an Auctioneer against his Employer, upon hit Implied H'/r- ranty that he had Authority to 8< // Gro ids put ij to A ing that the true Owner recovered their Vol I th* Pla ntiff. Adamsou v. Jarvis, 1 Bin 2. For falsely pretending to be the Princij iZ, D mi being •■nly Agent, and thereby inducing the Plainti± l:'e p. Lew. 2 M. & W. 519; S. C. in error, 4 M. & W. 337 ; (m) [Langmeid v. Holliday, 6 Ex. 761.] 13. For employing an Agent to sell a Mouse, who falsely represented that it ivas Rate Free. Fuller v. Wilson, 3 Q. B. 58 ; and see Cornfoot v. Fowke, 6 M. & W. 358 ; Collins v. Evans, (n) 5 Q. B. 804. (m) See this case commented on, Winter- (n) Observed npon by Campbell C. J. in bottom v. Wright, 10 M. W. 109 ; [Alton v. "Wheelton v. Hardistv, 26 L. J. Q. B. 265, Midland Rv. Co. 19 C. B. N. S. 213 ; Collis 275 ; [8 El. & Bl. 232]. j. Selden, L. R. 3 C. P. 495.] DECLARATIONS Q) i ,,];[. fg 14. For falsely representing < ■ .!.. who i Public House for 1> nt, the Amount* o) ■■ I; afterwards, with th B "' /> such Representation to Plaintiffs wh a Purchaser. Pilmorev. Hood, 1 Bing. N. < . 15. Against the Director of a Bat to its Solvency, and thereby indu ing I' in it. Taylor v. Ashton. 11 M. & W. 101 3 Gerhard 9. B Scott v. Dixon, 29 L. J. Ex. 62, note. 16. Against a Chairman of a Mining C represented to the Committee of the v E thirds of the Shares had bet n ' procured the Shares to b>' Plaintiff was induced to purehat Bagshaw v. Seymour, 32 L. T. 81 ; II. of I... •' . shaw, 4 II. & N. 538; 29 I- .1. Ex. 59 ; La another form, Clarke v. Dickson, 28 L. -I. < '. 1'. I 17. Against the Directors of a />' ■' falsely representing that th>\>/ !• Exchange. Eastwood v. Bain, 28 L. J. Ex. 7 1. 18. For falsely representing the & Company, whereby J' Pontifex r. Bignold, 3 M. & - N I 19. For falsely Plaint Handkerchiefs, which he had sent to D one, and that PI and thereby inducing I Barley v. Walfbrd, 9 Q. B. 197 j 1 "• I. •'■ Q B 20. For falsely representi ernmei Id be . Money to such Thi '.'/• Turnleyr. M . 1 I ' ,v 1 21. For False Representai Obs. — An action lies a- comm credit, or circuiust.. 526 DECLARATIONS IN TORT. FRAUD. Obs. &c. provided the party making the representation fame it was untrue, and the party to whom it was made relied upon the representation, and sustained an injury by trusting the person recommended. Pasley v. Freeman, 3 T. R. 51; Smith's Leading Cases; Sheen v. Bumpstead. 32 L. J. Ex. 271; [1 H. & C. 358;] and the cases supra ; [Tryon v. Whitmarsh, 1 Met. 1; Patten v. Gur- ney, 17 Mass. 182; Adams v. Anderson, 4 Harr. & J. 558; Medbury v. Wat- son, 6 Met. 246.] In such case it is not necessary to prove that the defendant was actuated by direct malice against the plaintiff, or anticipated any pecu- niary advantage to himself. See Foster v. Charles, 6 Bin^. 396; 7 Bin«\ 105. As to the nature of the credit given, and injury resulting in consequence of the representation, in order to fix the party making the representation, see Cor- bett v. Brown, 1 Bing. 33; De Graves v. Smith, 2 Camp. 533; Hutchinson v. Bell. 1 Taunt. 558. By 9 Geo. 4, c. 14, s. 6, "No action shall be brought to charge any person upon or by reason of any representation or assurance made or given concern- ing or relating to the conduct, credit, trade, ability, or dealing of any other person to the intent or purpose that such other person may obtain credit, money, or goods upon, unless such representation or assurance be made in writing signed by the party to be charged therewith." The memorandum need not be stamped by s. 8. [Statutes requiring a writing signed by the party to be charged, have been passed in several of the American states, Maine, Massachusetts, Vermont, Virginia, Michigan, Indiana, Kentucky, Missouri, and Alabama. Browne St. of Frauds, § 181 et sea. A representation by one member of a firm, as to the trustworthiness of the firm, is within the meaning of this act.] See Devaux v. Steinkeller, 6 Bing. N. C. 84; Clarke v. Dick- son, 28 L. J. C. P. 225; 6 C. B. N. S. 453; Tatton v. Wade, 25 L. J. C. P. 243; 18 C. B. 3 71. [For other cases upon this subject, see Haslock v. Fer- guson, 7 Ad. & E. 86; Tryon v. Whitmarsh, 1 Met. 1: Medbury v. Watson, 6 Met. 246; Norton v. Huxley, 13 Gray, 285, 287; Wells v. Prince, 15 Gray, 562; Kimball v. Comstock, 14 Gray, 508; McKinney v. Whiting, 8 Allen, 207; Mann v. Blanchard, 2 Allen, 386; Hearn c. Waterhouse, 39 Maine, 96.] A representation by the defendant that money might be safely lent to A. B. because the title-deeds of an estate, which belonged to A. B., were in the de- fendant's possession, and that nothing could be done without the knowledge of the defendant, and that plaintiff would be safe in making the loan, is with- in this statute. Swann v. Phillips, 8 Ad. & E. 457; Turnley, v. Macgregor, 6 M. & G. 46, where see a form of declaration. [So is a fraudulent represen- tation, made concerning a corporation, in order to induce a person to give up property to a corporation and take its notes in payment, within the corre- sponding statute of Massachusetts, although the one who makes the represen- tation is himself the treasurer of the corporation. McKinney v. Whiting, 8 Allen, 207. See Patten o. Gurney, 17 Mass. 182.] In Lyde o. Barnard, 1 M. & W. 101, the court were equally divided in opinion in regard to the true construction of the word ability in this enactment; two of the judges, Lord Abinger and Gurney B. thinking it applied to a misrepresentation of the ex- tent of the incumbrances upon the interest of a third person in certain funds, proposed to be transferred by him to the plaintiff as a security for the pay- ment of an annuity to be granted to him; and Parke and Alderson BB. being of opinion that it did not apply to such case. It is observable that the stat- ute renders the signature, of an agent insufficient. See Hyde v. Johnson, 2 Bing. N. C. 7 76. [An agent lawfully authorized may sign the writing in Massachusetts. Genl. Sts. c. 105, § 4."] The declaration need not show that the representation was in writing. 1 Saund. 276, note (1). The statute is satisfied if a material part of the representation be in writing. Tatton v. Wade, ubi sup. [In Hunter v. Randall, 62 Maine, 423, 426, Peters J. said: The statute of Maine "does not require that the plaintiff must, in terms, declare upon the representation. The true test whether the cause of action, in whatever form alleged, comes within the stat- ute is, whether the action can be sustained without proof of the representa- tion. If such proof is essential to the action, the statute applies."] DECLARATIONS in rOBT. B1 NDI 22. For inducing the Plaintiff to tuppl by a Fraudulent Misrepn Corbett v. Brown, 8 Bing. 83; Pasley p. I I B Dunsford, 1 East, 818; Haycrafl v, ( I [22a. For falsely representing a Third P Property, /> And the plaintiff says the defendant, to induce the plaintiff I on credit to one S. C, falsely repn the plaintiff in n said S. C. was a man possessed of a large property, (acopy of which writing is hereto annexed); and i! believing said representation to be true, was induced to sell, ■ said S. C. the goods mentioned in tin- account hen said S. C. credit for the price of >- .- 1 i < i g \-. being L. J. Ex. '250: Mackinnonu. Pi ] ' v. The Vestry of St Matthew, I. R ' J. Ex. 344; Highway Vcti Viet. e. 101 : [Hubbard J. in Whii Bemis, 2 M B< njamin p. U HUNDRED. Obs. — By 7&s Geo. I, c. Bl tioii for damage done by riol ceede E30. 9 lendar months. S. 1. S towe 9 B & Ad v Bristol, 8 Ad \l Bex ». B N - 528 DECLARATIONS IN TORT. INDEMNITY. Obs. ford, 11 M. & W. 391; 13 L. J. Ex. 361. The writ may be served on the constable. 2 W. 4, c. 39, s. 13. HUNTING. Obs. — See post, Pleas, " Trespass to Land; " Com. Dig. Chase; Geush v. Mynns, Cro. Jac. 321; see a form, 2 Chit. PI. 665, 7th ed. see post, " Shooting." HUSBAND AND WIFE. Obs. — A husband is liable for the torts of his wife during marriage, as also for all causes of action against her which accrued before the marriage. And this is so, even though they may be permanently living apart. Head v. Briscoe, 6 C. & P. 484. On the other hand, he has a right of action against any one committing a wrong to her, or to her personal or real property during or before coverture. Milner v. Millies, 3 T. R. 627; Avlins: v. Whicher, 6 Ad. & E. 259. See Came v. Brice, 7 M. & W. 183; Bird v. Peagrum, 13 C. B. 649 ; Den-ate p. Gardner. 4 M. & W. 6 ; [1 Chitty PI. 82-85.] The action should be brought in the names of husband and wife; but if the wife sues alone, the non-joinder of the husband must be pleaded in abatement, Milner v. Milnes, supra: Dalton v. The Midland Ry. Co. 13 C. B. 4 74. And the husband suing; with his wife in tort may add claims in his own rijjht. Common Law Procedure Act, 4852, s. 40. A husband mav be jointlv sued in trespass for the joint act of himself and wife. Vine v. Saunders, 4 B'ing N. C. 96; Keyworth v. Hill, 3 B. & Aid. 685. As to the frauds of the wife, see Adelphi Loan Association v. Fairhurst, 9 Ex. 422, 23 L.J. Ex. 163; Wrignt v. Leonard, 30 L. J. C. P. 365; [11 C. B. 258, and note adjinem: Keen v. Coleman, 39 Penn. St. 299.] After the death of the wife, the husband is discharged from all liability for the tortious acts of the wife. Vine v. Saunders, 4 Bincr. N. C. 162. After a divorce a vinculo matrimonii, a man is not liable to be sued jointly with his former wife for a tort committed bv her during the coverture. Capel v. Powell, 34 L. J. C. P. 168: [17 C B.'N. S. 743.] Where the husband is bankrupt his assignees must join with the wife in suing in respect of causes of action, such as a conversion of the wife's goods before the marriage, and the husband must not join. Richbell v. Alexander, 10 C. B. N. S. 324: 30 L. J. C. P. 268. By 20 & 21 Vict. c. 85, s. 59, the action for criminal conversation is abolished. [By statute in Massachusetts, a married woman may sue and be sued in ac- tions of tort in the same manner as if she were sole, and her husband shall not be liable to pay the judgment against her for damages or costs in any such suit, but the same may be collected out of her property, real or per- sonal; and all sums recovered by her in any such suit, shall be her sole and separate property. St. 1871, c."312; St. 1874, c. 184, § 3. See 1 Chitty PI. 82, note (cf), 83-85, and notes; Michigan Central R. R. Co. v. Coleman, 28 Mich. 440, 444, and cases there cited; Berger v. Jacobs, 21 Mich. 215; Em- erson v. Clayton, 32 111. 493 ; Berger v. Belsley, 45 III. 72.] See post, " Trespass to the Person and to Property." For enticing away Plaintiffs Wife. Winsmore v. Greenbank, Willes, 577. IMPRISONMENT. See " Trespass to the Person." INDEMNITY. See " Landlord and Tenant," post, 537. DECLARATIONS IN TORT. INJUNCTION'. IXF.W I Obs. — See ante, 14, 406; and post, Pleas, "Infancy." INJUNCTION'. Obs. — By the common law procedure act, L852 (15 & L6 Vict. c. 76), after re- citing, that it is expedient that injunctions and orders to rtaj prooeedingi should be rendered more effectual, it is enacted as follows: Section 226. "In case any action, suit, or proceeding in any court of law or equity shall be commenced, sued or prosecuted, in disobedience of and con- trary to any writ of injunction, rule, or order of either of the superior courts of law or equity at Westminster, or of any judge thereof, in any other court than that by or in which such injunction may have 1 n issued, or rule or order made, upon the production to any such other court or judge thereof of such writ of injunction, rule, or order, the Baid other court (in which action, suit, or proceeding may be commenced, prosecuted, or taken), or any judge thereof, shall stay all further proceedings contrary to any such injunc- tion, rule, or order; ami thenceforth all further ami subsequent proceedings shall lie utterly null and void to all intents and purposes: provided al- that nothing herein contained shall be held to diminish, alter, abridg vary the liability of any person or persons commencing, Buing, or prosecuting any such action, suit, or proceeding contrary to any injunction, rule, or order of either of the courts aforesaid, to any attachment, punishment, or other proceeding to which any such person or persons are. may. or shall be liable in cases or contempt of either of the courts aforesaid, in regard to the com- mencing, suing, or prosecuting such action, suit, or proceeding." And by the common law procedure act, 1854 (ir \ 18 Vict. c. 125), by sec- tion 79, " In all cases of breach of contract or other injury, where tin- party injured is entitled to maintain and has brought an action, he may. in like . and manner a- hereinbefore provided with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contract. or other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract, or relating to the Bame property or right; and he may also in the same action include a claim for damages or other redress." Section 80. " The writ of summons in such action shall be in the Bame form as the writ of summons in any personal action, b cry Midi writ and copv thereof there shall be indorsed a notice that in default of appearance the plaintiff may. besides pro ding to judgment and execution for dams and costs, apply for and obtain a writ of injunction." For form of Lndoi ment on writ under this section, Bee EL M. V. 1854, Sch '■'••■. Section 81. " The proceedings in such action shall be the same, as near' may be, and subject to the like control. ;•- the proceedings in an anion to obtain a mandamus under the provisions hereinbefore contained; and in action judgment may he given that the writ of injunction do or do not ;- as justice may require; ami in case of disobedience such writ of injunction may I"' enforced by attachment by th jurt. or. when BUCh I not lie sitting, by a judo Section 82. " It Bhall be lawful for the plaintiff at any time after tin- i mencement of the action, and whether before or after judgment, t<> apply ex parte to the court or a judge for a writ of injunction to restrain the defendant in such action from the repetition inuancc of the wrongful a< breach of contract complained of. or th.' committal of any breach of or injury of a like kind, arising out of th.- -aim ntract, or relating to the same property or right; and such writ may be granted or denied by the ■ or judge up m BUch terms a- to the duration of the writ. keepin_ r an account, giving security, or otherwise, ;r< to inch court or judge shall seem n . ■ and just, and in case of disobedience such writ may be enforced bl attach- ment by the court, or. when Buch courts shall not lie Bitting, by a judge: vided always, that any order for :\ writ of injunction made by a judge, or any vol. ii. 34 530 DECLARATIONS IN TORT. INJUNCTION. Obs. writ issued by virtue thereof, may be discharged or varied or set aside by the court, on application made thereto by anv party dissatisfied with such or- der." And by the common law procedure act, 1860 (23 & 24 Vict, c 126), it is enacted by s. 32 : " In all cases in which a writ of mandamus, or of injun- tion, is issued under the provisions of ' The Common Law Procedure Act, 1854,' such writ shall, unless otherwise ordered by the court or a judge, in ad- dition to the matter directed to be inserted therein, command the defendant to pay to the plaintiff the costs of preparing, issuing, and serving such writ; and payment of such costs may be enforced in the same manner as costs pay- able under a rule of court are now by law enforceable." Section 33. Writs of injunction against a corporation may be enforced either by attachment against the directors or other officers thereof, as in the case of a mandamus, or by writ of sequestration against their property and effects, to be issued in such form, and tested and returnable in like manner as writs of execution, and to be proceeded upon and executed in like manner as writs of sequestration issuing out of the court of chancery. By 15 & 16 Vict. c. 83, s. 42, the courts of common law may grant injunctions for infringing patents. It appears that the above powers will only be put in force to enforce legal rights. And under s. 82 of the common law procedure act, 1854, the court will grant only a rule nisi, in the first instance, for an injunction against a defendant in an action for infringing a patent ; and on cause being shown, it will give such directions as would be given by a court of equitv. Gittens v. Symes, 15 C. B. 362 ; 24 L. J. C. P. 48. When a declaration, claiming a writ of injunction, did not disclose facts show- ing clearly that there could not be an injunction, the court refused to allow the defendant to demur to so much of the declaration as claimed the writ. Bilke v. London, Chatham & Dover Ry. Co. 33 L. J. Ex. 206. So a defend- ant cannot plead to so much of a declaration as claims a writ of injunction, the claim being in the nature of a notice only that the plaintiff intends sub- sequently to ask for the writ. Booth v. Tavlor, 35 L. J. Ex. 56 ; [Booth v. Taylor, L. R. 1 Ex. 51.] When a writ of injunction has been granted by a court of common law to re- strain the defendant from committing nuisances for which the action has been brought, such injunction continues until it has been got rid of by the defend- ant. De la Rue v. Fortescue, 2 H. & N. 324 ; 2(3 L.J. Ex. 339. And where a court of equity has issued an order for an injunction to restrain an action, a court of common law will enforce such order by staying proceedings under the common law procedure act, 1852, s. 226, although no writ of injunction has actually been issued. Cobbett v. Ludlam, 11 Ex. 446 ; 25 L. J. Ex. 25. In Mayall v. Higbey, 31 L. J. Ex. 329, the court granted an injunction to re- strain the making and selling of photographic copies. Under what circumstances an injunction will be granted for obstruction to litrht, see Clarke v. Clark, 35 L. J. Ch. 151; [L. R. 1 Ch. Ap. 16;] Yates v. Jack, 35 L. J. Ch. 539 ; [L. R. 1 Ch. Ap. 295 ;] Dent v. Auction Mart Company, 35 L. J. Ch. 555 ; [L. R. 2 Eq. 245;] R. v. Darlington, 35 L. J. Q. B. 45; t2 Dan. Ch. Pr. (4th Am. ed.) 1638, and cases cited in note (2); Jackson v. )uke of Newcastle, 3 De G., J. & S. 275, and cases in note (1).] A court of common law cannot grant an injunction in an action of ejectment. tylia v. Legros, 2 C. B. N. S. 316; 26 L. J. C. P. 176. When, by the t'-rms of a contract, a sum by way of liquidated damages is made payable in case of breach, no injunction will be "ranted. Carnes v. Nisbett, 3*0 L. J. Ex. 348; 31 L. J. Ex. 273. Where a plaintiff in an action for a nuisance obtained an order for an injunction ex parte under s. 82 of common law procedure act, 1854, which was silent as to costs ; and a writ was also issued under s. 32 of common law procedure act, 1860, for payment of the costs, the plaintiff was not allowed to proceed to recover the costs of the injunction before the trial. Grindley v. Booth, 34 L. J. Ex. 135. • J DECLARATIONS IN* TORT. INNKEEPER. 581 Claim of Writ of Injunction. At the end of the declaration, after the claim of damage) add the claim ofth* tcrit of injunction, according to the facts of tin 1 a And the plaintiff also claims a writ of injunction to restrain the defendant from practising aa a sur- geon within miles of without the consenl in writing of the plaintiff, contrary to the above mentioned agreement (o) INNKEEPER. Obs. — An inn is a house where the traveller is furnished with everything he has occasion for while on his way. Thompson v. Lacy, "> B. & Aid. 288. Thus, a coffee-house, where beds and provisions ;uv furnished (lb.; Jones v. Os- born, 2 Chit. R. 484). is held to be an inn. •• A person who makes it bis lousi- ness to entertain travellers and passengers, and provide lodging and neces- saries for them ami their horses and attendants, i- a common innkeeper : and it is no way material whether he have any Bign before li i s door or not." Bac. Abr. Inns and Innkeepers, B. But if the landlord only prof* Bupply refreshment, and not beds, his house i~ not a common inn. Dor r. Laming, 4 Cam. :;. See Calye's case, 8 Coke, ::•-' : 1 Smith's L. C. [One who en- tertains strangers only occasionally is not thereby shown to hi- an inns although he receives a compensation. Lyon v. Smith, l Morris (Iowa), l-i : State v. Matthews. -J Dev. & Bat. 124. And where a person boarder at an inn. the innkeeper's peculiar liability either does not attach or ceases. Manning v. Wells, 9 Humph. 746.] An innkeeper is bound by tin- custom of the realm to receive travellers and rriusts at all hours and times if they tender and are ready to pay tin- custom- ary charge, an- in a til and proper condition as to conduct and health, and if there is accommodation for them. And if he refuse to admit them, h< liable to an action. Fell 0. Knight, 8 M. & V7.269 : 1" L.J. Ex.277 : Haw- thorn v. Hammond, i C. & K. 104 ; or to an indictment. B C. & P. 219 : per Holroyd J. Ansel! o. Waterhouse, 6 M. & S. 28 has no right to select a particular room, or to occupy a bedchamber aa a -i-- ting room, so long ;i> the innkeeper provides him with a proper room for tliat purpose. Fell v. Knighl 8 M.& W. 269 ; 10 I.. .1. Ex. 277. [An innkeeper would not be bound to entertain an agent of a rival inn. who Bought to away hi- customers. Story •'. in Jencks ». Coleman, •-' Sumner, 221. And if it appear to be necessary for the protection of himself or his guests, the inn- keeper may prohibit a person from entering his inn. until the -round oi ap- prehension be removed ; and may even treat >m b a p. 1SCT if he enter after such prohibition. Markham v. Browi 5 J5 BL The liability of innkeepers has been greatly modified by - & 41. Section l enacts, that " No innkeeper shall be liable ton, I toanj of such innkeeper any I— of or injury to goods or property brought to bis inn, not being a horse or other live animal, or any -.ar appertaining th( or any carriage, to a greater amount than the sum of £ pt in tl lowing cases ( that is to .-a\ \ : 1. » Where such goods or property shall have been through the wilful act. default. 0T 1 if BUch innkeeper, or any servant in his employ : 2. " Where Buch goods or property Bhall have been dep custody with such innkeeper: "Provided always, that, in the b deposit, it shall be lawful for such innkeeper, if he think tit. to require, as a condition of his liability. goods or property shall be deposited in s box or other receptacle tasl led by the person depositing the Ban (o) Carnes o. Nisbett, SI I •' Ex. 278; injunction In an anion for infi t 7 H. ft N. 1> 778 It form of writ of a patent 532 DECLARATIONS IN TORT. INNKEEPER. Obs. By ?. 2, the innkeeper is obliged to receive the property of guests for safe cus- todv. or Bhall not be entitled to the benefits of the act in respect of such goods or property. By s. 3, " Every innkeeper shall cause at least one copy of the first section of this act, printed in plain type, to be exhibited in a conspicuous part of the hall or entrance to his inn, and he shall be entitled to the benefit of this act in respect of such goods or property only as shall be brought to his inn while such copy shall be so exhibited." By s. 4, " ' Inn ' shall mean any hotel, inn, tavern, public-house, or other place of refreshment, the keeper of which is now by law responsible for the goods and property of his guests ; and the word ' innkeeper ' shall mean the keeper of any such place." Subject to the provisions of this act, an innkeeper is bound to use the greatest diligence in regard to the goods and chattels of his guest; Calye's case, 8 Co. R. 32; 1 Smith' 8 L. C; and he is liable for the frauds and defaults of his ser- vants and his guests. lb.; Kent v. Shuckard, 2 B. & Ad. 803. In short, he appears to be prima facie liable for any loss not occasioned by the act of God or the queen's enemies. Richmond v. Smith, 8 B. & C. 11; [Sibley v. Aid- rich, 33 N. H. 553.] But the innholder shall not be charged unless there be a default in him or his servants in the well and safe keeping or custody of his guest's goods and chattels within his common inn. Calye's case, 8 Co. R. 32. [And so it was held in Cutter v. Bonney, Michigan, 14 Am. Law Reg. N. S. 445; and in Merritt v. Claghorn, 23 Vt. 177 ; Metcalf r. Hess. 14 111. 129. But in Sibley p. Aldrich, 33 N. H. 553, it was maintained by Perley C. J. who gave the opinion, that the innkeeper cannot discharge himself from liability by showdns; that the damage did not happen through his actual nejrliffence or that of his servants. And there are many other cases which bear in the same direction, some of which are cited in Sibley v. Aldrich, supra, and see, also, Pinkerton v. Woodward, 33 Cal. 557; Hulett r. Swift, 33 N. Y. 571; Wilkins v. Earle, 44 N. Y. 172; Norcross v. Norcross, 53 Maine, 163; Shaw v. Berry, 31 Maine, 478; Fullers Coats, 18 Ohio St. 343; Mason v. Thompson, 9* Pick. 280; Piper v. Manny, 21 Wend. 282; Grinnell v. Cook, 3 Hill (N. Y.), 485; Manning v. Wells, 9 Humph. 746; Fowler v. Dorlon, 24 Barb. 384 : Thickstun v. Howard, 8 Blackf. 535 ; Chamberlain v. Masterton, 26 Ala. 371 ; 2 Kent. 592: Day v. Bather, 2 H. & C. 14; Oppenheim v. White Line Hotel Co. L. R. 6 C. P. 515.] " The loss of the goods while at an inn will be presumptive evidence of negligence on the part, of the innkeeper or of his domestics; [Cutter v. Bonney, Michigan, 14 Am. Law Reg. N. S. 445; Mer- ritt v. Claghorn, 23 Vt. 177; Shaw v. Berry, 31 Maine, 478; Johnson v. Rich- ardson, 17 111. 302 ; McDaniels v. Robinson, 26 Vt. 316; Read v. Amidon, 41 Vt. 15, 18; Kelsey v. Berry, 42 111. 469 ; Laird v. Eichold, 10 Ind. 212;] but he may, if he can, repel the presumption and show that there has been no negligence whatever, or that the loss is attributable to the proper negli- gence of his guest, or that it has been occasioned by inevitable casualty or superior force." Story on Bailments, c. 6, s. 470; Dawson v. Chamney, 5 Q. B. 164 ; 13 L. J. Q. B. 33; [but see Sibley a. Aldrich, 33 N. H. 553.] An>l he is liable even for the money of his guest. Kent v. Shuckard, 2 B. & Ad. 803; Doorman v. Jenkins, 2 Ad. & E. 256. [There is no distinction in this respect between goods and money. Fletcher J. in Berkshire Woollen Co. v. Proctor, 7 Cush. 417, 427; Eppes v. Hinds, 27 Miss. 657; Quinton v. Courtney, 1 Hay. 40; Sneider o. Geiss, 1 Yates, 35. The innkeeper is liable for the horse, carriage, and harness of -his guest. Mason v. Thompson, 9 Pick 280; Piper r. Manny, 21 Wend. 282; Clute v. Wiggins, 14 John. 175. His liability extends to all the money and goods of the guest that are placed within his control. Berkshire Woollen Co. v. Proctor, 7 Cush. 417; 2 Kent, 598; McDonald v. Edgerton, 5 Barb. 560; Taylor v. Monnot, 4 Duer (N. Y.), 116: Weisenger v. Taylor, 1 Bush (Kv.), '275; Pinkerton v. Woodward, 33 Cal. 557: Sasseen v. Clark, 37 Geo. 342; Treiber v. Burrows, 27 Md. 130; Dickinson v. Winchester, 4 Cush. 114.] The innkeeper is not liable if the goods be stolen by the guest's own servant or companion. Calye's case, supra; Burgess v. Clements, 4 M. & S. 306, 310; or if the guest "himself is guilty of negligence which conduces to the loss. Morgan v. Ravey, [6 H. & N. 265;] 30 L. J. Ex. 131; Cashill v. Wright, 6 El. & Bl. 891; Armistead DECJ.ABATIONS IX TORT. INNKKKl'l B. Jbs. v. Wilde, 17 Q. B. 261. [And so it was held iii Cutter o, Bonney, Michi- {'an, 14 Am. Law Reg. X. S. 445, thai the innkeeper Is nol liable where the oss happens by an accidental fire or other casualty coming from without, or of such a nature aa to negative his negligence. The law casta no duty on a lodging-house keeper to take, care at the goods of his lodgers. Holder v. Soulby, 8 C. 15. X. 8. 254.] An innkeeper lias the righl of lien on the Inggage, horses, or carriages of nil guest for a debl Incurred while they are in his custody, t >u t nol for a debt crued prior to thai time. Jones v. Thurloe, 8 Mud. 178. And his lien ex* tends to 'Mods brought to his inn by a guest, though they belong to a third party, provided they are Buch as a person mighl ordinarily travel with. Snead V. Watkins, 1 C. B. N. S. 2C7: 'I'urrill v. Crawley, 13 Q. B. 197; and Broadwood p. Granara, lo Ex. 417. This righl of hen depends upon tin- fact that the articles detained came into the defendant's possession in the charac- ter of innkeeper, as belonging to a guesl a1 his inn; bo thai it is always im- portant to ascertain whether me owner of the goods occupies the position <>f a guest. Smith v. Dearlove, 6 C. B. 182; 17 L. J. C. I". 219; Binns v. Pig- gott, 9 C. & P. 208. The innkeeper has no righl to detain the person of his guest. Sunbolf v. Alford, 3 M. & W. 248; Wolf v. Summers, l Camp. 681. If the lien is once parted with, it is gone forever. Jones v. Peale, l Str. "'57; Jones v. Thurloe. 8 Mod. 173. He cannot Bell for the amount due except by the custom of London and Exeter, lb.; Moss v. Townsend, 8 Bulst 271; Robinson v. Walter, Ih. 269. See per Lord Ellenborough, Chast , West- more, 5 M. & W. 185. To render the innkeeper liable the goods must he- those ( ,f g guest. Bac. Abr. Inns and Innkeepers, C; York v. Grindstone, l Salk. 888; .Jelly.-. Clarke, Cro. Jac. 188; Bennett v. Mellor, 5 T. R. -273; [Towson i>. Havre de Grace Bank, 6 Harr. & J. 47. The goods, however, an- lor this purpose sufficiently those of a guest, and will he protected and the innkeeper liable, if they are at the inn in possession of a <_ r uest, who is a servant or friend of tin- owner; and one who has hired the goods is a Bervant within this rule. Mason V. Thompson,!) Pick. 280; Berkshire Woollen Co.». Proctor, ' Cush. 417; Tow- son v. Havre de Grace Hank. 6 Harr. & J. 47. 88; Dickinson v. Winchester, 4 Cush. 114, 121.] But an innkeeper is not liable for g Is lost out -t a private room ia the inn chosen by the guest tor the purpose of exhibiting them to his customers, the use of which was granted by the innkeeper, who at the same time gave him a key of the room to lock the door, which the guesl n lected to do. Burgess v. Clements, I M. & S. 806 : Farnwork v. Pat 1 Stark. 2i:i. 251, note. See Richmond v. Smith. 8 H & C. '•»; Armistead v. Wilde, 17 Q. B. 261. It is said that if a person hire a room in an inn for a term, he is no <_ r uest, hut a lodger, and therefore the innkeeper i- no; liabl such. Walbroke v. Griffith, Moore, 877; Holder v. Soulby, '." L. J. C. P. 246; [8 C. B. N. S. 254. See per Lord Campbell C. J. and Coleridge J. in Dansey r. Kichardsoii, 8 EI. & BL lit. A- to who an- to I lered guests, see Chamberlain o. Masterton, 26 Ala. 871; Mc Daniels <•. Robi 26 Vt.316; Peet». McGraw, 25 Wend.658 Grinnell r. ( B N.Y.), 485; Thickstun v. Howard. 8 Blackf. 585; McDonald v. Edgertoi • Barb, 560. A person is none the less a guest, because he m ikes a particular tract respecting the price of hi- hoard and lodging. Berkshin W Hen Co. v. Proctor, 7 Cush. 417; Pinkerton v. Woodward, I :. ■'■•"■:.] See"Lodg» ing-house Keeper," posL An action will lie againsl the executors of an innkeeper for loss of tin- g la of the guest, if brought within the time limited hy :i \ 1 W. I. 6. u Morgan p. Bavey, supra. 1. Against Defendant as. an Innkeeper J the Plaintiff as ' a ■ st, ( /' ) Hawthorne r. I laiiunond. 1 C. & lv. I 11 !. (p) See form for turning a gnesl out of an inn, and pleas justify lag, Fell r. Knight, 8 SL & W. 269 ; L. J. Ex. 277. 534 DECLARATIONS IN TORT. JUDGE. 2. By a Guest against an Innkeeper for the Loss of his Goods, (q) That the defendant was an innkeeper and kept a common inn for the accom- modation and reception of travellers, and received the plaintiff, being a trav- eller, into the said inn as a guest therein, together with a trunk of the -plain- tiff's containing his goods ; yet the defendant, while the plaintiff was a guest therein, with his said trunk and goods, did not keep the said trunk and goods safely and securely, but he and his servants so negligently conducted them- selves in that behalf, that by reason thereof the said trunk and goods were wrongfully taken and carried away by some person to the plaintiff unknown, and are wholly lost to the plaintiff. JUDGE AND JUSTICES OF THE PEACE. Obs — " By the law of England, if an action be brought against a judge of record for an act done by him in his judicial capacity, he may plead that he did it as judge of record, and that will be a complete justification. So, if the in- jury complained of had been done by the defendant as a judge, though it arose in a foreign country, where the technical distinction of a court of record does not exist, yet, sitting as a judge in a court of justice subject to a superior re- view, he would be within the reason of the rule which the law of England says shall be a justification ; but then it must be pleaded." Per cur. Mostyn v. Fabrir the defendant." S. 2. " That for any act done by a justice of the peace in a matter of which by law he has not jurisdiction, or in which he Bhall have exceeded his juris- diction, any person injured thereby, or by any acl done under any conviction or order made or warrant issued bj such justice in any such matter, may maintain an action against such justice in the same form and in the Bam< case as he might have done before the passing of this act, without making any allegation in bis declaration that the act complained of was done mali- ciously, ami without reasonable and probable can-.-: provided nevertheless that no Buch action Bhall be brought for anj thing done under Buch conviction or order, until after Buch conviction Bhall have been quashed, either upon appeal or upon application to ber majesty 's court of queen's bench, nor Bnall any such action be brought f<>r anything done under any Buch warrant which shall have been issued by such justice to procure the appearance of Buch party, and which shall have been followed by a conviction or order in the same matter, until after such conviction or order -hall have been bo quashed as aforesaid, or if such last mentioned warrant Bhall not have been followed by any such conviction or order, or if it be a warrant upon an information Eoi an alleged indictahle offence, nevertheless, if a Bummons were issued pre- viously u> such warrant, and such summons were served upon BUch person, either personally or by leaving the Bame for him with Borne person at bis last or most usual place of abode, ami lie did not appear according to the exi- gency of such summons, in such case no Buch action -hall be maintained against such justice for anything done under rach warrant." Byl G, after a conviction or' order has been confirmed on appeal, no action can be brought for anything done under a warrant upon it. Bys. 8. the action must he brought within six month- next after the thing com- plained of shall have been committed, and bj -• '■'■ not until after a month's notice of intention to bring such action. Sec post, " Notice oi Action. Ss. 1 & 2 are to be read together, and the latter only applies to a case where the act for which the action is brought i- of itself an excess of jurisdiction. Barton v. Bucknell, 13 Q. B. 393; 20 L. .1. M. C. I. And it would appear that the words " exceeding his jurisdiction." in b. •-'. mean- assuming to do somethiii" which the acl under which he is proceeding could by no possibility justify. 'Per.Iervis C. J. Ratt v. Parkinson, 20 1. J M. C. 208 212. - Kendal v. Wilkinson, 24 L. J. M. C. 89; Pedley v. Davis, 10 I B. V 9 492; 30 L. -I. C. P. 374; Pease v. (hay. or. l B. & S. 658; 8] L J. M. < l L. J.M. C. 121. And where the justice has committed a mere irregularity, and not an excess of jurisdiction, an action will not lie against him. Bote 0. Ackroyd, 28 L. J. M. C. 207; [i Chitty PL 206.] See form for a malicious conviction, Gelan v. Bali, 27 L. J. M. I ■-: -'II. >v N. 879. I Taylor w. Nesfield, 23 L.J. M C. 169; 8 El. & Bl. 72; Pease >■. Chaytor, [1 B. & S. 658;] 31 L. J. M. C 1 : 32 L. J. Bl C. 121. LANDLORD AND TENANT. See " Distresses," •• Reversion." Obs. — An action li-s by a landlord against his truant. mger, for rolm waste committed during his tenancy, or bj ■ party entitle! to the imn reversion against the tenant for lite, 8m.; see i Saund. 82 Baund. S provided the plaintiff have a rested interest at the time of the commit- ting of the waste. Bacon v. Smith, 1 Q. B. 846; [1 Chitty PL l- '• Waste is a Bpoil or destruction of houses, gardens, trees, or other cor] hereditaments, to the dishonor of him who hath the remainder or revei It is cither voluntary, which is a crime of commission, as by pulling down ■ bouse, or it is permissive, which i- a matter of omission only, as bj suffering it to fall for want of necessary reparations. Whatever does to t he freehold or inheritance is waste." -' BL Ch. 18 Tenants for life OT for years arc liable : 11 . I, and 6 I 536 DECLARATIONS IN TORT. LANDLORD AND TENANT. Obs. 5; Yellowby v. Gower, 11 Ex. 294; 24 L. J. Ex. 299; but a tenant at will or from year to year is not liable for permissive waste; Harnett v. Maitland, 16 M. & W. 257; 16 L. J. Ex. 134; Gibson v. Wells, 1 Nev. R. 290; Tori- ano v. Young, 6 C. & P. 8; Martin v. Gillham, 7 Ad. & E. 542; nor a truant for a term not under a covenant to repair. Heme v. Benbow, 4 Taunt. 764. An action fur commissive or volunlary/wa.ste lies against a tenant, although he hold under a lease with a covenant to repair; Kenlyside v. Thornton, '2 W. Bl. 1111; 2 Saund. 252 a, note (6); see Jones v. Hill, 7 Taunt. 392: Bur- nett v. Lynch, 5 B. & C. 603; or commit waste while holding over after notice to quit. Burchell v. Hornsby, 1 Camp. 360. One tenant in common cannot maintain this action against'another tenant in common who is not in possession. Martvu v. Knowllys, 8 T. R. 45. See Fennings v. Lord Gren- ville, 1 Taunt. 241. In the instance of a tenant neglecting to keep the prem- ises in repair, or to cultivate according to good husbandry, an action on contract would appear to be the proper remedy, see forms ante, 187-190; but the mortgagee of a lessee for years may maintain a count in tort against the assignee of the tenant. Hitchman v. Walton, 4 M. & W. 409. As to what is waste, see Phillips v. Smith, 14 M. & W. 589. A tenant who plants fruit- trees for sale, may remove them if not too aged to be transplanted. Wardell t>. Usher, 3 Scott N. R. 508. The venue is local. 1. By a Landlord for Voluntary Waste, by injuring the Premises, and taking down and removing the Plaintiff's Fixtures, (j) For that the defendant was tenant to the plaintiff (s) of a dwelling-house, and the defendant during the said tenancy wrongfully damaged parts of the said dwelling-house, and wrongfully pulled down the fixtures affixed thereto, (t) and disposed of the same to his own use, and at the termination of the said tenancy delivered the said dwelling-house to the plaintiff greatly damaged, (u) [la. Count for Permissive Waste in a Dwelling-house. That the defendant was tenant to the plaintiff of a dwelling-house for the term of years from the day of , a. d. , and during the said (r) See other forms, Martyr v. Bradley, the legal title. Valance v. Savage, 7 Bing. 9 Bing. 26 ; Taylor v. Stendall, 3 D. & L. 595. Mortgagor tenant to mortgagee. Part- 161. Case for inclosing waste land, part of ridge v. Bere, 5 B. & Aid. 604. It is not a the premises demised. Queen's College, Ox- material variance to allege, contrary to the ford, c llallctt, 14 Bast, 489. For opening fact, that the tenancy and reversion still con- a door in a wall demised, and as to form of tinue. Vowles v. Miller, 3 Taunt. 137. declaration, &c. Young v. Spencer, 10 B. & (t) The nature or kind of waste should be C. 145. By an incoming against an outgo- stated according to the facts, see 2 Saund. ing tenant on the custom of the country for 252 d, e, f; forms in trespass, post, " Tres- not leaving a third of the off go ing crop, &c. pass;" and if any permissive waste be in- Boraston v. Green, 16 East, 71. If by the tended to be charged, the declaration should express covenant in the lease, all future fix- contain words accordingly; Martin v. Gil- tures, &c. set uj> on the premises, are to be ham, 7 Ad. & E. 546; for cutting trees, 2 delivered up at the end of the term to the Chit. PI. 7th ed. 595. Where trees are ex- landlord, see West v. Blakeway, 2 M. & G. cepted from the demise, trespass, and not T 2H> this will override any right which the case, for cutting them, is the proper form of tenant would otherwise have to remove them, action for the landlord. Goodright v. Vivian, on the ground of their bein^ trade fixtures 8 East, 190; 1 Saund. 322, note (5) ; Ward or otherwise, see Chit. Contr. Ind. "Fix- v. Andrews, 2 Chit. II. 636; 2 Camp. 491. tun-;" Naylor v. Collinge, 1 Taunt. 19; Whether the trees be excepted or not, the Mostyn '-. Bradley, 9 Bing. 24; Ex parte landlord may in general maintain trespass or Bentii-y, 2 Mont., Dea. & I)e Gex, 591 ; and trover against a person who removes them an action will lie against all concerned in after severance. lb. When otherwise, see the removal. See Walmsley v. Milne, 7 C. Channon v. Patch, 5 B. & C. 897. B. N. S. 115 ; Hitchman v. Walton, 4 M. & (w) Omit this last allegation, if the ten- W. 409. ancy was not at an end when the action was (s) No variance, though cestui que trust brought, or the action be against a stranger, actually let, but plaintiff was his trustee with not against the tenant. DECLARATIONS IN TOBT. LANDLORD AND TENANT. tenancy wrongfully permitted waste to the raid dwelling-house, bj nrifi the same to become ami be ruinous and in decay, in the doors, windows, and roofs of the said dwelling-home, for the want of needful and necessary repair- ing thereof. See Gibson v. Wells, 1 B. & P. N. R. 290 ; Harm. 11 p. Maitland, 16 M. & W. 257.] • 2. Landlord against a Tenant for not talcing care of JShtrniture, fie. See ante, "Hire," p. 144, and " Bailees," |>. I s 1. where will be found (Minis which may be easily adapted. 3. Tenant against Landlord for not indemnifying him against a Dis- tress for Ground Kent. See form, dec. Hancock v. Caffin, 8 Bing. 358. Tort seems to be the appro- priate form of action. See Burnett v. Lynch, 5 B. & C. 609. The common count in contract for money paid for defendant at 1*1-- request would lie, where the plaintiff has paid the arrears to prevent a rale, otherwise nut ; and in recover damages for a sale under a distress, Sec. or expenses, the declara- tion must be special. Exall v. Partridge, 8 T. R. .'5o,s ; Moore v. Pyrke, 1 1 East, 52. 4. By the Assignor against the Assignee of a Lease for not indt fying him against the Breaches of Covenant after the Assignment. See form, &c. Burnett v. Lynch, 5 B. & C. 589. An action on contract also would, it seems, be sustainable. An action of covenant does doI lie, where the assignee does not execute the assignment, or it contains no enant by him to pay the rent and perform the covenants ; and the usual Wi of assignments, "subject to the rent." &o. do not constitute a covenant by the assignee. See Wolveridge v. Steward, I Cr. A; M. 644; ante, 195, note hend in Slander, pp. 35, 45, 68, and 237; Christianey J. in Weiss v. Whittemore, 28 Mich. 371. A corporation aggregate may sue or be sued for a libel. Ante, 502; Aldrichr. Press Printing Co. 9 Minn. 133. As to the liability of pub- Ushers of newspapers, see Commonwealth v. Morgan, 107 Mass. 199; Sny- der v. Fulton, 34 Md. 128; Buckley v. Knapp, 48 Missou. 152; Fry v. Ben- nett, 28 N. Y. 324; Smart v. Blanchard, 42 N. H. 137.] As to costs, see 3 & 4 Vict, c. 24; ante, 462. A judge may certify to give the plaintiff his costs when the damages are under 40s. Foster v. Painter, 8 M. & W. 395. The new county courts have no jurisdiction in these actions. Ante, 462, Obs. Verbal Blander is actionable, without special damage. 1. Winn it contains an imputation of some crime liable to temporal punish- ment; Fleming v. Power, 10 M. & W. 564: Alfred v. Farlow, 8 Q. B. 854; 4 Co. Rep. 16; [Blackburn J. in Watkin v. Hall, L. R. 3 Q. B. 399; Spooner v. Keeler, 51 N. Y. 527; Mayer v. Schleichter, 29 Wise. 646; Haynes v. Ritchley, 30 Iowa, 76; Murray v. Murray, 1 Cine. (Ohio) 290; Filben v. Daughtermann, 26 Wise. 518; Miller v. Parish, 8 Pick. 385; Lukehart v. Byerly, 53 Penn. St. 418; Murray v. McAllister, 38 Vt. 167; Redway v. Gray, 31 Vt. 292;] as theft, &c. ; Curtis v. Curtis, lOBing. 447; Rowcliffe v. Edmunds, 7 M. & \V. 12; [Simmons v. Holster, 13 Minn. 249; Van Akin v. Caler, 48 Barb. 58;] keeping a bawdy house. Brayne v. Cooper, 5 M. & W. 250; [Peterson v. Sentman, 37 Md. 140; Huckle v. Reynolds, 7 C. B. N. S. 114: Widrid v. Oyer, 13 John. 124; Martin v. Stillwell, 13 John. 275; Young v. Miller, 3 Hill . 22; trade or business; fb. 1». 25; [Blackburn J. in Watkin v. Hall, L. Li. 3 Q. B. 399, 400; Fitzgeral i>. Red ield, 51 Barb. 184 ; Fowlea v. Bowen, 30 N. V. 20; Weiss ». Whittemore, 28 Mich. 866,877 378; and is calculated to injure him in such character, as by imputing to him unfitni for the office, profession, &c. in consequence of want of skill; Redman v. Pyne, 1 Mod. L9; or dishonesty, but not men- immorality, unless connei with the exercise of the profession; Ayre v. Craven, 2 Ad. & I'.. 2; Lumby v. Allday, supra; [see Miller >-. David", L. R. 9 C. P. 118;] or trade, A Bryne v. Cooper, 5 M. & W. 249; e. g. by imputing to a physician wan: legal qualification to practise his profession; Collin- p. Carnegie, l Ad. & L. 695; Southeev. Denny, l Ex. 196; [Jones v. Diver, 22 [nd. 184; Carrol , White, 33 Barb. 615;] or to an attorney, misconduct in his professi dell v. Jones, 4 M. &W. 446; Doyley w. Roberts, 8 Bing N. I md see Hcarne r. Stowell 12 Ad. & E. 719; or to a tradesman, insolvency, 8to. in trade: Eaton v. Jones. 1 Dowl. N. S. 602; J - v. Littler. 7 M \ W. 42::: as to Bay falsely and maliciously, " he is indebted to me, and if be does not come and make terms with , I will make a bankrupt of him and ruin him." even without special damage; Brown v. Smith, 22 I J C. P. 151; Lt C. B. 599; or to a ship-owner, that hi- ship was iwoithy; Ingram v. Lawson, 6 Bing. ST. C. 212; or to a tradesman, that he sell - thai he knows to be bad. Evans V. Harlow. 5 <«> B. 6 18 Is to imputations upon clergymi n, Bee Pemberton v. Colls, 1 I Q B. 161 ; 16 I. J. Q B Gall- wey v. Marshall, 9 Ex. 295; 28 L. J. Ln- 28 j Walker v. Brogden, 19 * N". S. 65. \- to the mod,, of declaring in such ca i < bitty PL 410 etaeq. ; Dicken v. Shepherd, 22 Md. 89 Verhal slander is actionable, with special dams 3. If the words themselves be oi a disparaging nature, such rindler," "rogue," 8tc.; Kelly v. Partington, 6 B a Ad. 645; and they and malicious, though they do DOt impute any .-rime, nor are spoken of the : tiff in the wav of his office, &C. -■ . Harnett r Allen. 8 II. \ \ L. J. Ex. 412. [See Neil i». Allenhofon, 26 W - R ""if* person to 1"- a villain, a rascal, and a cheater, are not actional' i ■ne actionable if Bpoken of one in reference to bis trade or Nelson ■ Borchenius, 52 01.236. So of words imputing insolvency, way v. Gray, 31 Vt. 292. To render an oral charge oi insanitj actionable, 540 DECLARATIONS IN TORT. LIBEL. Obs. there must be an averment of special damage. Joannes v. Burt, G Allen, 236. But a statement false and malicious, but not in itself defamatory, made by one person in regard to another, whereby that other may probably, under some circumstances, and at the hands of some persons, Buffer damage, will not, even though damage has resulted in fact, support an action for defama- tion. Miller v. David. L. R. 9 C. P. 118.] A written libel is actionable which contains imputations coming under any of the preceding heads, or which imputes conduct to the plaintiff disgrace- ful: Digby v. Thompson, 4 B. & Ad. 821; immoral; Tuam r. Robeson, 5 Bing. 17: irreligious or hypocritical; Leicester v. Walter, 3 Camp. 214, note; Churchhill v. Hunt. 2 B. *& Aid. 685; [Adams v. Lawson, 17 Grattan, 250:] or indeed which tends in any way to degrade the plaintiff, as by averring that he had insulted a female and was guilty of gross misconduct; Clement v. Chivis, 9 B. & C. 172; or to write of a man that he is an infernal villain; Bell v. Stone, 1 B. & P. 331 ; or that a landlord was colluding with an insol- vent tenant: Haire v. Wilson. 9 B. & C. 645; or to disparage; Cheese v. Scales, LO M. 6c YV. 488; [Fray v. Fray, 17 C. B. N. S. 603; Brown i\ Rem- ington, 7 Wise. 462;] as being insolvent; Metropolitan Omnibus Co. v. Haw- kins, 4 H. & X. 146; see Hoare v. Silverlock, 12 Q. B. 624; Greville v. Chapman, 5 Q. B. 744: or even to ridicule him; Cook v. Ward, 6 Bing. 409; Villers v. Mousley, 2 Wils. 403; Digby v. Thompson, 4 B. & Ad. 821; [Adams v. Lawson, 17 Grattan, 250; Lansing v. Carpenter, 9 Wise. 540; or state that he is insane. Perkins v. Mitchell, 31 Barb. 461.] As to libels on public characters, Parmiter v. Coupland, 6 M. & W. 105. The libel or words must be false, and the declaration always charges their fal- sity, but probably the word wrongfully or maliciously would be sufficient, at least, if there were no demurrer. See 1 Saund. 242 a, note (2) ; Rowe v. Roach, 1 M. & S. 304. The charge must be malicious in fact or in law; but it seems that any equiva- lent expressions, as " wrongfully and falsely," &c. published, &c. would suf- fice. 1 Saund. 242 a, note "(2) ; Com. Dig. Act. for Def. G. 5; De Medina v. Groves, 15 L. J. Q. B. 284; 10 Q. B. 168. [See Keesling v. McCall, 3G Ind. 321.] The malice is implied from the falsity; O'Brien o. Clement, 15 M. &W. 437; 15 L.J. 285, Ex. per Parke B.; but where the occasion on which the words complained of are spoken or written, is privileged, the law will not infer malice, but malice in fact must be found. [See Hagan v. Hen- dry, 18 Md. 177; Garrett v. Dickerson, 19 Md. 418.] As to proof of ex- press malice, see Bromage v. Prosser, 4 B. & C. 256; [Fowles v. Bowen, 30 N. Y. 20.] A subsequent libel, though itself actionable, may be given in evidence to prove malice. Pearson v. Le Maitre, 5 M. & G. 700; and see Barnwell v. Adkins, 1 M. & G. 807; Barrett v. Long, 3 H. L. Cas. 395; Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J. Ex. 227; [Baldwin v. Soule, 6 Gray, 321; Robbins v. Fletcher, 101 Mass. 115; Markham v. Russell, 12 Allen, 573; Clark v. Brown, 116 Mass. 504, 508; Schrimper v. Heilman, 24 Iowa, 505; Smith v. Lovelace, 1 Duvall, 215; Fry v. Bennett, 28 N. Y. 324; Garrett v. Dickerson. 19 Md. 418; Taylor v. Moran, 4 Met. (Ky.) 127; Parmer v. Anderson, 33 Ala. 78. And it is no objection to a recovery for slanderous words charged', that the utterance of the same slanderous words has been proved against the defendant in a former action for the purpose of proving 'malice in the utterance of other slanderous words charged in such former suit. Nor, on the other hand, is it any objection to the proof of slanderous words not charged in the declaration, for the purpose of showing malice in the utterance of those charged, that the same slanderous words have been proved and recovered for in a former action of slander between the parties. Swift v. Dickerman, 31 Cona. 285.] As to when the alleged libel and slander is privileged, see post, pleas, " Libel and Slander." * By G & 7 Vict, c 96, in an action against a newspaper for libel, the defendant may plead that it was inserted without malice, and without gross negligence, and that . before the commencement of the action, a full apology was inserted in die newspaper; and this must be accompanied by payment of money into court. If the case proceed to trial, and the plaintiff recovers less than the sum paid in. the defendant is entitled to the balance. See Lafone v. Smith, 3 H. & X. 735; 28 L. J. Ex. 33; and 8 & 9 Vict. c. 75. DECLARATIONS IN TORT. LIBEL. ".IT Obs. The Declaration. — No inducement is now necessary since the common law procedure act, L852 (16 & L6 Vict, c 76), which, bj s. 61, enacts, "Inactions of libel and Blander the plaintiff shall be ftl liberty to aver thai the words oi matter complained of were osed In a defamatory sense, specifying such de- famatory sense without any prefatory averment to show now such words <>r matter were used in thai sense, and such averment shall be put ia issue by the denial of the alleged libel or slander; and when the words or matter set forth with or without the alleged meaning show a cause of action the declaration shall be sufficient." It is doI now necessary that there should beany colloquium ^ bul the plaintiff may set out the wool- and put any con- struction be pleases upon them. Semmings v. Gasson, 27 L. •'. Q. B< 222; [1 El., Bl. & El. 846; Watkin v. Flail, L. R. B <>. B. 896, 101, 102. fjnder the New York Code (§ 164), it is provided that in an action for libel or Blan- der it shall not be necessary to Btate in the i plaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter mil of which the cause of action arose.] A statement that the libel was composed and published, or the slander tp and published, " of and concerning the plaintiff," Is < ntial although it averred that defendant published '* with intent " to impute the offence, 8cc. to the plaintiff See l Saund. 242 b, note ( 3) ; B Wilkinson, I Cur. &M. 400; O'Brien v. Clement, [16 M. & W. 159 :] 16 L. J. Ex. 77: I 1). 8t L. 568. And a declaration which stated that defendant published a libeL containing the false and scandalous matter following, without alleging that such matter was '• of and concerning the plaintiff," and then set out the libri, which did not on the face of it relate to the plaintiff, and did not connect nun with it by innuendo, was held bad on a writ of error. Clement r. Fisher, 7 B. &C. 459; [Baldwin v. Hildreth, n Cray. 221; l Chitty PL lis. 1 1 .9.] The Statement of th Scandalous Matter. — It is a rule that in an action for defamation, the libel or slander must be set out in hox verba. The very words must be stated, in order that the court mav Bee that the charge be action tl as a libel or slander. [Taylor v. Moran, I Met (Ky.) 127; I Chitty PL » 19.] "If it w.re sufficient to' state merely the effect of the words, any pen would 1).' at liberty to to the effect of the words, without Btating any precise words; and even if the witness did state precise words, the jury would have to judge of their legal effect, whereas thai is generally to be decided bj the court. Words innocent in themselves might by the witness be perverted from their true meaning, or be by the jury so interpreted as to make a de- fendant clearly liable at law. It' is not expedient to hlend questions of and fact together; the most useful object of all systems of pleading is to sep- arate them; It oughl therefore to appear to the curt upon the face of the deelartion. by the words or signs themselves, that they are sufficient to sup- port such innuendoes or averment- as may be necessary to apply to the sub- ject; that they mav hear the interpretation put on them, and present the in- jury which is charged to have resulted from them;" per Lord Abin# B. in Gutsole v. Mathers, l .M. & W. 195. Therefore, in ti- the words were actionable only in respect of -pedal damage, the arrest.d the judgment after verdict, because the declaration only charged that the defendant " falsely and maliciously a* the presence. &c. that the tulips were Btolen property." V ! v. Bevington, 8 C. & !'• 708; and Solomon vA I \ laration is also bad if it state that the defendant published libellom " in substance as follow! as out the libel; Wright v. Clenw ,v Aid. 508; or "jjurp " tint. fee. W 1 v. Brown, •'• Taunt So a declaration for slander, thai defendant falsely and maliciously " ch i and asserted &nd accused plaintiff of being in insolvent circumstances," i Cook p. Cox, 3 ML & 8. 110. E B lard s. Kelly, i B. I The judge mav amend a variance at the trial, or direct the precis) indorsed on the record. Smith v. Know L&< ■ ' A to setting out part of a sentence, Rutherford s>. Evans, 6 Binz 151; i C. & P. 74. A> to setting ont continuouslj irhich are dividi others in the libel, see I Stork. Sla. 2d ad I It. PL note. Defamation in a foreign language should be set out in that I Xenohio ,-. Axtell, 6 T. R. L62; l Saund. 242 a, note; l Chit. PL 7th ed. 542 DECLARATIONS IN TORT. LIBEL. Obs. 421; Jenkins v. Phillips, 9 C. & P. 766; with an averment "that the words aforesaid signified and meant, and were then understood to mean, in the Ensrlidi l;ui'_rii;i'_ r e, as follows, that is to say. &e." and there must be an aver- ment that the hearers understood the language. Amann v. Damm, 8 C. B. N. S. 597; 1 Win. Saund. 242, note (1). In action for words casting imputa- tions on professional men, it must be averred and proved that the plaintiff carried on such profession at the time of the slander. Bellamy r. Burch, 16 M. & W. 590. [In Massachusetts the declaration in slander need only set forth the substance of the language in which the imputation was made; and only the substance of the alleged words importing the offence stated need be proved. Bobbins v. Fletcher, 101 Mass. 115. See Lukehart r. Byerly, 53 Penn. St. 418. But there must be no substantial variance between the words alleged and those proved. Doherty v. Brown, 10 Gray, 250; Payson v. Ma- comber, 3 Allen, 69. The words must be proved substantially as laid. Mer- rill v. Peaslee, 1 ' N". II. 540; Taylor v. Moran, 4 Met. (Kv.) 127. See Baker V. Young, 44 111.42; Swartzel v. Dev, 3 Kansas, 244; Wilborn v. Odell. 29 111. 456; Coghill v. Chandler, 33 Miss. 115; 1 Chittv PI. 420; Smith r. Hol- lister, 32 Vt. 695; Burford v. Wible. 32 Penn. St. 95. Enough of the words alleged to constitute the slanderous charge must be proved. It is not enough to prove other and equivalent words. Tucker v. Call, 45 Ind. 31.] Where the scandal is susceptible of one of two meanings, as fraud or felony, an innuendo, which adopts one meaning and gives a specific character to the slander, and which innuendo is not therefore on the face of the declaration a bad one, becomes a material part of the issue, and cannot be rejected. Smith v. Camden, 3 Camp. 461; Day v. Robinson, 1 Ad. & E. 554; Williams ?'. Stott, 1 Cr. & M. 687; Harvey v. French, 1 Cr. & M. 11; May v. Brown, 3 B. & C. 128; and see Hughes v. Rees, 4 M. & W. 204. An innuendo is very frequently used without occasion. Where there is an alle- gation that the words were spoken "of and concerning the plaintiff," and the words as set out either state his name or mention him thus, " you " or " he," and the slanderous matter is charged absolutely and affirmatively, an innuendo, ns ("meaning the plaintiff ") would seem to be unnecessary. [See Carson v. Mills, 69 N. Car. 122.] Where the words import a charge of crime, and the action is for that charge, an innuendo explaining their meaning is not necessary : as "he is a thief," or " he robbed me ; " Tomlinson v. Brittle- bank, 4 B. & Ad. 630; or, " you have done an act for which I can transport you." Curtis v. Curtis, 10 Bing. 447; Harvey v. French, 1 Cr. & M. 11. See Homer v. Taunton, [5 H. & N. 661;] 29 L. J. Ex. 318. The innuendo must not introduce new facts quite distinct from the words charged to have been spoken, or it will be bad. See Day v. Robinson, 1 Ad. & E. 554 ; Griffiths v. Lewis, 15 L. J. Q. B. 249 ; [1 Chitty PI. 422.] But where the words are put interrogatively, as " who stole the horse? " an innuendo applying them to the plaintiff, and stating that defendant meant that he stole the horse, is essential. Jackson v. Adams, 2 Bing. N. C. 408. Where in an action for a libel, containing matters and criticisms of a general nature evidently not al- luding to the plaintiff, and also a specific charge against him, the plaintiff, in his declaration, set out the general matter, and introduced in so doing a great variety of superfluous innuendoes, by which the plaintiff applied such matter to himself, though evidently not meant to refer to him; Denman C. J. at the trial refused to strike out such innuendoes, and the jury gave a general ver- dict negativing the latter innuendoes. Prudhomme v. Fraser, 1 M. & It. 435. The court, however, afterwards allowed the plaintiff to retain his verdict for that part of the libel which related specifically to him, and which was capable of separation from the rest, but gave the defendant costs as to the part neg- atived by the jury. Prudhomme v. Frazer, 2 Ad. & E. 615. The Damage. — Where particular damage is the gist of the action, it must be specially laid, and, if traversed, proved as charged, the general or common statement of injury in the declaration will not suffice. See Bui. N. P. 6; Giere v. Britton, Bui. N. P. 7; 1 Saund. 243, note (5); [Joannes v. Burt, 6 Allen, 286; Wier v. Allen, 51 N. H. 177; Bassil v. Elmore, 65 Barb. 627; McQueen r . Fulgham, 27 Texas, 463; 1 Chitty PI. 423, and note (o 1 ); Weiss v. Wliittemore, 28 Mich. 366; Roberts v. Roberts, 5 B. & S. 384. The decla- ration must specify how the alleged special damages resulted to the plaintiff DECLARATIONS IN TORT. LIBEL. ■ 18 Obs. from the defendant's slanderous words. Cook v. Cook, 1 00 Ma >4; Swan v. Tappan, 5 Cosh. 104; Snell v. Snow, IS Met. 2' Thus, it' the injury be that certain persons declined to deal with the plaintiff, their Dames matt be stated, and the loss of oust era ii"i named cannot lie proved at the trial. lb.; Hartley v. Herring, 8 T. EL. 180; Malachy v. Soper, S Bi N I and see Guv r. (Jre^ory, n C. >v 1'. 584. Bui where the Btatemenl oi special damage with great particularity would, from the nature of the case, be at- tended with difficulty and prolixity, a Tin. re genera] allegation i- allowed. Thus, where a declaration tin" slander, imputing incontinence to the plaintiff, stated that he was a preacher in a chapel, and derived profit from hi- preach- ing, and by reason of the Blander "the said persons frequenting his chapel had refused to permit him to preach then', and had discontinued '_'i\in_ r him the gains which they usually had and otherwise would have given," held sufficient withoul Baying who those persons were. Hartley <•. Herring, 8 T. R. 130. "Where the declaration Mated that in consequence "I" the libel the plaintiff lost the profits of certain performances at the theatre, it was held that the lioxkeeper might he asked whether the receipts of tin' house had not diminished, hut not whether particular persons had not in consequence given up their boxes. Ashley v. Harrison, l Esp. 18; Delegal v. Higbleji 8 C. & P. 441. And where there i> a general allegation of I"-- "i business, i ; is com- petent to the plaintiff to prove a general loss or decrease of trade, although the declaration alleges the loss of particular customers, which is not proved. Evans v. Harries, 1 II. & X. 251; 26 I.. .1. Ex. 81; [Foster J. '" Weir -.Al- len, 51 N. II. I-::; Weiss v. Wnittemore, 28 Mich. 866; Trenton &c. Ins. Co. v. Perrine, 8 Zabr. 102.] Special damage musl be the direct or immediate consequence of the defendant's act. and it seems must arise wholly therefrom. See Bang v. Wan-. 8 C. & P. 614; [Poster J. in Weir/'. Allen, 51 \*. II. 188; Olmsted p. Brown. 12 Barb. 657; Dixon v. Smith, 5 H. & N.450.1 Where the plaintiff's master discharged him partly in consequence of the defendant's scandal, and partly on account of his having been dismissed by a former master, it seems the action does not lie. An allegation that by reason of the word- one 1). refused to trust the plaintiff, is not supported by evidence that defendant spoke the words to E., who repeated them to l>. a< the defendant's words. Ward >■. Weeks, 7 Bing. 21 1. An averment that •• by reason of the premises, pen who would otherwise have, retained ami employed the plaintiff', declined to do so," is not proved by showing that other person- would ha ■ led the plaintiff, and that the persons named in the declaration would have em- ployed plaintiff mi such recommendation. Sterry v. Foreman, 2 t . .\ P. 5 'The declaration should have laid the loss of the recommendation also. It is not essential in these cases that the part] refusing t<> deal with or tru-t the plaintiff, or dismissing him in consequence of the -lander, should it is true. Knight v. Gibbs, 1 Ad. & E. 13; I I V II. lis.] It is necessary to call such party, and not sufficient to prove merely his di larations as to the can-.- of his declining to deal, &c. i Saund Tilk v. Parsons, 2 C. >v P. 201. It has been decided that if the dama in For that the defendant falsely and maliciously printed and published tin plaintiff [in relation to lit- "trad.\" or "profession," or M offl may be, of a "butcher," which he then exercised and carried on] in a certain (.r) Sec form, Common Law Procedure admits the publication, the plaintiff • , >, i, r, prove the manner th a (v) Sec i Saund. - Jt2, note (/); 1 Chit PL *i'W t" the amount of damages. Vinee v. 7th" cd. 45G, note (6). Although the plea Bert II. 7 C. 4 1'. 1 544 DECLARATIONS IN TORT. LIBEL. newspaper (r) called '' The Times," the words following, that is to say, (a) " he is a regular prover under bankruptcies," the defendant meaning thereby that the plaintiff had proved and was in the habit of proving fictitious debts against the estates of bankrupts, with the knowledge that such debts were fictitious. [If there was a subsequent libel, add:~\ (b) And in a certain other number of the said newspaper the defendant falsely, &c. [If there be any special damage, here state it with such reasonable particularity as to give notice to the defendant of the peculiar injury complained of; for instance :] (c) whereby the plaintiff lost his situation as gamekeeper, in the employ of A. [or " whereby A. B. and C. D. (d) refused to deal with or recommend the plaintiff in the way of his trade as a butcher," or " refused to lend him a sum of money," or " to sell him goods on credit," or " to take him into their service as clerk."" [See Tighe v. Cooper, 7 El. & Bl. 639 ; Hemmings v. Gasson, El., Bl. & El. 346.] [la. Count for a Libel in a Foreign Language. That the defendant falsely and maliciously wrote and published of the plain- tiff, in the Welsh language, the words following, that is to say [here set out the libel verbatim in the Welsh language~\, which said words being translated into the English language, have, and were understood by the persons to whom they were so published to have, the meaning and effect following, that is to say [here set out a literal translation of the libel in the English language, and add any innuendo which may be necessary, as in the preceding form~]. See Zenobio v. Axtell, 6 T. R. 162 ; Jenkins v. Phillips, 9 C & P. 766. lb. Count for Libel imputing Felony to the Plaintiff. That the defendant falsely and maliciously wrote and published of the plain- tiff the words following, that is to say, " He is the person who took my horse," the defendant meaning thereby that the plaintiff feloniously stole a horse of the defendant. \c. Forms prescribed by Mass. Prac. Act. Slander. — And the plaintiff says that the defendant publicly, falsely, and maliciously accused the plaintiff of the crime of perjury, by words spoken of (=) As to proof of libels in newspapers, newspaper called &c." Held, that this was a 6 & 7 W. 4, c. 76 ; Baker v. Wilkinson, 1 C. separate count. Hughes v , Rees, 4 M. & W. & Marsh. 400; Holcroft v. Hoggins, 2 C. B. 204 ; and see Griffiths v. Lewis, 15 L. J. Q. 188. It cannot be shown in mitigation of B. 249. Unless, however, a different date of damages that the libel was communicated by the time of speaking the words which follow a correspondent ; Talbntt v. Clarke, 2 M. & the statement that the defendant "further Bob. 312; [see 1 Chitty PI. 523 ;] but it is contrived, &c." be assigned, the whole will a good defence that the libel was a fair re- be taken as one count. Alfred v. Farlow, port of judicial proceedings. Hoare v. Sil- 15 L. J. Q. B. 259. verlock, 2 C. B. 20 ; 19 L. J. C. P. 215; (c) No allegation or proof of damage is Lewis r. Levy, 27 L. J. Q. B. 282 ; As to necessary where the words are actionable of proceeding against the sureties of news- themselves, and not in respect only of spe- paper proprietors, Ex parte Duke of Bruns- ci^il damage. Tripp v. Thomas, 3 B. & C. wick, Ex. 22. 427; Malachy v. So per, 3 Bing. N. C. 382, (a) See Boydell v. Jones, 4 M. & W. 447, per Tindal C. J. As to special damage, for the mode of setting out an ironical libel ; see ante, 543, Obs. The general statement 2 Ch. PI. 7th ed. }si>. of damage will not be sufficient to let in evi- (b) A declaration, after setting out a libel, dence of special damage, and will not aid went on thus : "And the defendant further even after verdict where special damage is contriving as aforesaid, afterwards, to wit, on necessary. Ayre v. Craven, 2 Ad. & E. 2. &c." "in a certain other number of the said (d) See post, 548, note (m) and (n). DECLARATIONS IN HUM'. LIBEL. the plaintiff substantially as Follows {here set forth the words; no inn are necessary!. (If the natural imporl of the words is ool intelligible without further i planation, or reference to facts understood but not mentioned, or parts of the conversation not stated, in either of those cases, after setting forth the words, the declaration should contain a concise and cl< men) of such thins are necessary to make the words relied on intelligible to the court and jury in the same sense in which they were Bpoken. This rule is applicable to actions for written and printed as well as oral Blander.) Libel. — And the plaintiff says the defendant caused to be published in a newspaper [describing it] a false and malicious libel concerning the plaintiff, a copy of which is hereto annexed. (Or if It be a picture, it may be described.)] 2. Other Forms for Libel, charging Crimes. 1. For charging a gardener with larceny in Btealing plants. &C. Gardiner v. Williams, 2 Cr., M. & R. 78 ; S. C. in error, I M. & \V. 2 1-".. 2. For a libel in a newspaper containing a report of legal proceedii Duncan v. Thwaites, 3 B. & C. 556; and Bee Delegal v. Highley, 3 Bing. N. C. 950; 8 C. & P. 444; Lewis v. Levy, 28 L. J. <>. B. 282 ; [EL, Bl. & El. 537,] as to the right to report legal proceedings. 3. For a libel upon the plaintiff in regard to the evidence he bad given a witness under a commission of lunacy. Roberts v. Brown, 1" Bing. 519; 4 M. & Sc. 407. 4. For a libel imputing forgery or fraud in obtaining a hill of ezchai Stockley v. Clement, 4 Bing. 162. 5. Fox a libel in saying plaintiff had Bet fire to bis own property. apple v. Jesse, 5B.& Ad. 27 ; West v. Smith, I Dowl. 703. [6. For slander imputing bigamy to a married woman. Herring ''. Power, 10 M. & W. 564 7. For slander imputing unnatural practices. Thompson V. Nye, 16 Q. B. 175. 8. For a libel calling plaintiff a "truck master." Homer p.Taunton, •< H. & N. 6G1. 9. For slander in calling a person a "blackleg," imputing that he cheated at cards. Barrett v. Allen, .'! II. iV X. 876. 10. Against a railway company, for publishing a notice that the plaintiff had been convicted of an offence against their by-laWS. Alexander v. North Eastern Ry. Co. 6 1'.. & S. 840.] 3. For a Libel imputing Tmmoralit Q ■>' tfi For a libel charging that the plaintiff obtained money by unfair play. Digby v. Thompson, 1 B. a. Ad. 821. For imputing that plaintiff, by furious driving, Ac. drove his carriag another, and occasioned death, &C Lord Churchill p. Hunt. 'J I'.. A AM. For imputing to the plaintiff unfair practices connected with horse raci Greville v. Chapman, .'> Q. B. 781. vol. ii. 35 546 DECLARATIONS IN TORT. LIBEL. For a libel charging that plaintiff was a "black sheep," with an innuendo. M (, g ' -'»ry, 11 M. & W. 287; 2 Dowl. N. S. 769; [O'Brien v. Clement, L6 UL& W. L59.] 4. /' /• a hibel niton the Plaintiff in his Office, (e) 1 ' »r a libel upon plaintiff in his office of mayor, imputing peculation in regard to charity funds. Godburne v. Bowman, 9 Bing. 532 ; 2 M. & Sc. 700. For a libel on a justice of the peace. Adams v. Meredew, 3 Y. & J. 219 ; rruling _ V. & -I. 117. On overseers of the poor. Cannell v.' Curtis, 2 Bing. N. C. 228; Wood- wanl v. Dowsing, .' M. & R. 74; Cheese v. Scales, 10 M. & W. 488. On churchwardens. Jackson v. Adams, 2 Scott, 599 ; 2 Bing. N. C 402. On an alien Turkish Dragoman. Pisani v. Lawson, 6 Bing. N. C. 90. 5. For a Libel upon the Plaintiff in his Profession. (/) Upon a proctor, charging extortion. Clarkson v. Lawson, 6 Bing. 266. On an attorney and vestry clerk of a parish. May v. Brown, 3 B. & C. 113. On physicians, see cases cited, ante, Obs. 6. For a Libel on the Plaintiff in his Trade or Occupation. (#) See general form for " Slander," post, 547, Form 9. 7. For Libels on and by Companies. See the last edition of this work, p. 572 ; [ante, 502, 538.] By a joint stock company. Metropolitan Saloon Omnibus Co. v. Hawkins, 4 11. & N. 89; 28 L. J. Ex. 201. Against a railway company, [for a libel published by means of a message sent through an electric telegraph.] Whit- field >: South Ka^tern Ry. Co. 27 L. J. Q. B. 229 ; [1 EL, Bl. & El. 115.] Com. Dig. and Bac. Ab. Libels; ficient prima facie evidence of the party being .. SI. 115; Lamb; v. AJlday, 1 Cr. & J. an attorney of that court. Sparling o. Hed- Mill-r v. David, L. R. 9 C. P. 12;-).] don, 9 Bing. 11. Where the libel itself ad- other cases as to libels on medi- mits plaintiff was an attorney, no other evi- cal men, Smith v. Taylor, 1 N. R. 196; dence thereof is requisite. As to what puts • Etyarf, 9 Bing. 533; Ayre v. in issue the plaintiff's general professional E. 2. Libel, that physician character, Jones v. Stevens, 11 Price, 235. it qualified, and evidence. Collins v. As to words of general abuse, not relating to l A.I. & E. 695; Rose. Ev. 6th ed. plaintiff as attorney, Tomlinson v. Brittle- Apothecary. Edsall v. Russell. 2 DowL hank, 1 IT. & W. 573. 641; 1 M. & <;. 1090. What matter (,,) [See Weiss v. Wbittemore, 28 Mich. as a libel or Blander of an at- 306.] The general rule is, that any libel or fP™ • Buller, 3 Wils. 59; Phil- slander of a tradesman, though not of the "P? ' R.624; May v. Brown, goods which he sells, is actionable without ' H3; 4 I). & ]{. 679; Stark, special damage. Evans v. Harlow, 5 Q. B. See a form feu- accusing an 624. So of a party seeking a livelihood by Bharp practice," with innuen- any occupation (though not a trader subject Howl, 11 „. Jones,4 M. &W.446; to 'the bankrupt law) ; Whittington v. Glad- c to prove that plain- win, 5 B. & C. 180; and imputing to him in- t denied by plea) an en- solvency, want of capacity, or dishonesty in "H of attorneys, signed by his calling, and calculated to prejudice him ifficient. So the l k from therein. Bac. Ab. Slander, B. 4; Stark. ontaining the names of SI. 2d ed.; Selw. N. P. tit. Slander; Biggins torneys, produced by the officer in v. Cogswell, 2 M. & S. 349; Saville v. »tpdy it is kept, is good evidence, Sweeny, 4 B. & Ad. 514 ; Jones v. Littler, 7 "^w pro ilaintiff practised M. & W. 423. Charge of immorality against the word- spoken, a tradesman, supra. Partners in trade may ! C r J ■'■■ 526 ; Lewis v. join for a libel upon or slander of them in ,: ,: " r ;; H »■ Stevens, 11 their business ; Cook v. Batchellor, 3 B. & P. '■ And the stamp office certificate, 150 ; or each mav sue separately. Harrison countersigned by the master of Q. B. is euf- v. Bevinjrton. 8 C. & P. 708. DECLARATIONS IN TORT. LIBEL. 5 1 7 8. Other Forms for Libels on Parties in their Business, Trade, Occu- pation, $c. ; see post, 548. Upon a banking firm, charging that they had stopped payment Forster v. Lawson, 3 Bing. 452; Bromage v. Prosser, 4 B. & C. 247. The like, by one of a firm, for a similar charge. Robinson v. Marchant, 7 Q. B. 918 ; L5 I,. .1 Q. B. 135. Upon plaintiff as a stage-coach proprietor. Clement v. Chivis, 9 11. & C. 172. For a libel charging that a commercial linn were a swindling concern. Clarke v. Taylor, 2 Bing. N. C. 654; [Taylor v. Church, 1 E. D. Smith. 279 ; S. C. 4 Selden, 452.] Against a society for the protection of trade, for publishing the plaintiff's name in a list of persons who were deemed swindlers in trade by the society. Goldstein v. Foss, in error, 4 Bing. 489 ; Humphreys v. Miller, 4 C. & P. 7. For a libel on plaintiff as surveyor, &c. to a company. Rutherford v. Evans. 6 Bing. 451. For a libel on plaintifF as a civil engineer, with special damage. Brooks v. Blanchard, 1 Cr. & M. 779. For a libel on plaintiff as the vendor of a medicine. Morrison v. Harmer, 3 Bing. N. Cr. 759. By a servant against his late master, for a libel, whereby plaintiff lost a sit- uation. Pattison v. Jones, 8 B. & C. 578. Form for a libel in giving a governess a false character, and law, &c. Foun- tain v. Boodle, 3 Q. B. 5. For a libel on plaintiff as a cook. Prudhomme v. Fraser, 1 M. & Rob. 435 ; 2 Ad. & E. 645. [For libel on a certificated master of a ship, imputing that he was drunk while in command of a ship. Irwin v. Brandwood, 2 H. & C. 960.] 9. For Slander. (Ji) For that the defendant falsely and maliciously spoke and published of the plaintiff [in relation to his "trade," or "profession," or ■• uflice," as the case may be, of " a butcher," which he then exercised and carried on], the words following, that is to say, (i) " he is a thief," or " he is insolvent." [If there be any special damage, (k) here slate it with such reasonahh' particularity as to give notice to the defendant of the peculiar injury complained of; for in- stance:'] whereby (I) he lost his situation as gamekeeper in the employ of A. (h) See Common Law Procedure Act, or not, otherwise the plaintifF cannot prove 1852 s. 61 sch. B. it, to enhance tin' damage, l Sannd, 243 (i) The 'precise words used must be set note (5). It is absolutely necessary to main out. Gutsole v. Blathers, l -M. & W. 405. tain the action, if the words be only of a See Stannard v. Harper, 5 M. & R. 295 ; n'ce disparaging nature, without imputing any versa R. v. Berry, 4 T. R. 217. See, also, crime, or are not Bpoken of the plaint ill in MTherson v. Daniels, 18 B. & C. 274 ; Bell his office, &c. Kelly v. Partington, 5 B. A v. Byrne, 13 East, 554 ; [ante, 541.] Words A.I. 645; Ayro v. (raven. 2 Ad. & I spoken at different times may be given in [Roberts v. Roberts, 5 B. & S. 3S4.] evidence on one count. Charher v. Barret, (/) This means entirely from the slander, Peake, 32. Bing a. Watts, 8 C. & P. 614, though A. B, (it) Special damage, when it exists, should may not have believed it. Knight v. Gibbo, be alleged, whether the slander is actionable 1 Ad. & E. 43 ; [ante, 543.] 548 DECLARATIONS IN TORT. LIBEL. [or - whereby A. B. and C. D. (m) refused to deal with or to recommend (n) the plaintiff in the way of his trade as a butcher," or "refused to send him a sum of money," or "to sell him goods on credit," or "to take him into their service as clerk "]. 10. Other Forms for Slander of Plaintiff in his Business, Trade, or Occupation ; see ante, 546, 547. ('• ±44 ; unless leading to the plaintiff. Ward v. Weeks, 7 Bing. 211. ].n,l i xnv ; and the parties themselves See Sterrv v. Foreman, 2 C. & P. 592. I, th-ir declarations not being (o) Spoken words imputing to a man mis- Mitlicient. 1 Saund. 243 u. 13; Cooper v Qtterbach, 89 Md. 282; Besson '■. Southard, l" N. ^ Center v. Spring, 2 ('Luke (Iowa), 898; Israel o. Brooks, 28 III. 575; A-li v. Marlow, •_'<> Olii.i, ll!»: Mitchell r. Wall, 11] Mass. 492; Good v. Trench, 115 Mass. 201.] It is incumbent on the plaintiff to adduce Bome evidence, though Blight, and prima" facu testimony will Buffice of the wanl of probable cause for the action or prosecution ; [see (Irani v. Moore, 644; Cloon v. Gerry, 18 Gray, 201;] and then, semble, it will lie on the defendanl to rebut malice, to show that he was ignorant of or bad mistaken the facts; Mitchell v. Williams, 11 M.& W. 205; rBrigham v. Aldrich, l"., Mass. 212;] bul proof of the most express malice will nol perse establish the absence of reasonable cause for the proceeding. Taylor v. Willans, 2 1!. & Ad. 857; Johnson v. Sutton, 1 T. R. 193; Turner v. Turner, Gow R. 20; [Mitchinson v. Cro 58 111. 366; Morton J. in O'Brien v. Barry, L06 Mass.303, 304; Casperson v. Sproule, 3:> Missou. 89; Parker v. Farley, 10 Cush. 281 ; Stone v. Crocker, 24 Piek. 83; Spengler v. Davy, 15 Grattan, 381.] " What shall amount to such a combination of malice and want of probable cause, is so much a matter of fact in each individual ease as to render it impossible to lay down any general rule on the subject ; but there ought to be enough to satisfy a reasonable man that the accuser had no ground for proceeding but hi- desire to injure the accused." Williams v. Taylor, 6 Bing. 186, per Tindal C."J. Circumstances of mere suspicion will not be sufficient. Bussi v. Gibbons, ■'! L. J. Ex. 75; Heslop v. Chapman, 23 L. J. Q. B. 49; [Josselyn v. McAllister, 25 Mich. 45. To constitute "probable cause" there must be a reasonable ground of -u j picion, supported by circumstances sufficiently strong in themselves to lead a man of ordinary caution and prudence to believe that the plaintiff was guilty, or liable to the process or procecdiii'_ r against him. Mowry V. Whipple, * K. I. 360; Shafer v. Loucks, 58 Barb. 426; Shaul v. Brown, 28 Iowa, Cole v. Curtis, 16 Minn. 182; Hays v. Blizzard, 30 End. 157; Callahan v. ta, 39 Missou. 136; Lacy v. Mitchell, 23 [nd.67; Bumphries v. Parker. 52 Maine. 502; Ross v. Innis, 35 111. 487; Bacon v. Towne, I Cush. 217: Spengler v. Davy, 15 Grattan, 381; Scanlan v. Cowley, 2 Hilton, 189; Mitchell v. Wall, 111 Mass. 492. The burden of proof to show a want of probable cause, and also malice, is on the plaintiff, wdio is hound to allege them. Morton J. in Stone v. Crocker, 21 Pick. 84; Shaw C. J. in Cloon o. Gerry, 13 Gray, 201, 202; Grant v. Moore, 29 Cal. 644; Ritcheyv. Davis, ll Iowa, 124; Wheeler v. Nesbitt, 24 How. (U. S.) 544; \Y:elc v. Walden, 23 111. 125; Israel v. Brooks, 23 111.575; Mitchell v. Wall, 111 Mass. 492; Levi v. Brannan, 39 Cal. 185; Good v. French, 115 Mass. 201.] Malice (which is of two kinds, viz. malice in law and malice in fact, or a malice) must also be proved by the plaintiff to maintain an action for an un- founded arrest or prosecution. He must prove malice in fact, independently of the act itself done by the defendant. From proof of want of probable cause the fury may, however, inter malice; such proof is p ridence of malice; hut this is an inference not of law, but of fact, which the jury are not bound to draw, and the presenting to the jury the absence of probable cause, as conclusive evidence of legal malice is a misdirection. Mitchell v. Jenkins, 5 B. & Ad. 588. See Weston v. Beeman, 27 L. J. Ex. 57; [Levi v. Brannan, 89 Cal. 185; Burnaps v. Albert, Taney, 244; Cloon v. Gerry, 18 Gray, 201; Wiggin v. Coffin, 8 Story, 1; Mowry p. Whipple, 8 R I. 360; Straus v. Young, 36 Md. 246; Closson u. Staples, 12 Vt. 209; Ammerman v. Crosby, 26 Ind. 451; Scofield v. Ferrers, 17 Penn. St. 194; Malone v. Murphy," 2 Kansas, 250; Humphries v. Parker. 52 Maine. 502; Cecil Clarke, 17 Md. 508.] The proceedings in the former suit must 1"- proved, and its determination in favor of the plaintiff. Barber v. Lissiter, 29 L. J. C. P. 161; 7 C. B. X. - 175; Whitworth v. Hall, 2 B. & Ad. 695; [Redway v. McAndrew, L. R9 Q. B. 74; Castrique v. Behrens, 8 E1.&E1. 709; Bacon v. Towne, I Cush.217; Brown v. Randall, 36 Conn. 56; Meyer v. Walter, hi Penn. St. 283; < Mm Br stead v. Partridge, 16 Gray, 881; Driggs v. Burton, ll Vt. 124; O'Bn ,rry, 106 Alas.-. 800; Bacon V. Water-. 2 Allen. 400; Wheeler P. Nesbitt, Barry DECLARATIONS IN TORT. MALICIOUS ARREST. Obs. U How. (I\ S.) 544; Gorrell v. Snow,3l Ind. 215; Hays v. Blizzard, 30lnd. ;: Grant v. Moore, 29 Cal. 644; Wood o. Laycock, 3 Met. (Ky.) 192. As to what amounts to a termination of the suit, see Bacon <•. Towne, 4 Gush. 7: Parker . Farley, 10 Cush. 279 ; Brown v. Lakeman, 12 Cush. 482; .( Shove, 6 Gray, 498; Stancliff v. Palmeter, 18 Ind. 321.] But this rule d i !'!'l v "'hire the proceedings in respect of which the action brought are ex parte, and must, of necessitv, terminate unfavorably to the Intitr. Steward v. Gromett, 39 L. J. C. P." 170 ; 7 C. B. N. S. 191. The arrest and consequent damage must also be proved. Cotterill v. Jones, 11 C. B. 713; 21 L.J. C. P. 2. action will lie against a judgment creditor for. maliciously and without rea- probahle cause indorsing a writ of ca. an. issued on such judgment for a larger sum than due, and causing the plaintiff to be arrested. Gilding v. Eyre, 10 ('. B. N. S. 592; 31 L. J. C. P. 174 : Churchill v. Siggers, 3 El. & I Jenings v. Florence, 26 L. J. C. P. 277; 2 C. B. TSf. S. 467; [see Barnett v. Reed, 51 Penn. St. 190;] and it is not necessary to the action that the plaintiff should have been discharged by the court. A railway company, or corporation, is not liable in this action in respect of criminal proceedings instituted by their servant without their knowledge or direction. Stevens v. .Midland 11 v. Co. 23 L.J. Ex.328; 10 Ex. 352. And see Eastern Counties Ry. ( i. v. Broom, 6 Ex. 314; 20 L. J. Ex. 196; Roe v. Birkenhead Ry. Co. 7 Ex. 86; 20 L. J. Ex. I); Gofr v. Great Northern Ry. Co. 30 L. J. Q. B. 148. B il that a corporation may be liable in an action for malicious prosecution, . 502.] •ial damage must be alleged and proved in an action for maliciously prose- cuting civil proceedings, and extra costs, beyond the taxed costs, allowed in the suit, are not sufficient special damage. Cotterell o. Jones, 11 C. B. 718. This action cannot be brought in the county courts. !) & 10 Vict. c. 95, s. 58. nerally. 3 Bl. C. 126; Bac. Abr. Action on the Case, H.; Com. Dig. Ac- tion upon the Case for a Conspiracy; Heywood v. Collinge, 9 Ad. & E. 268; Addison on Torts. [Actions of this sort are not favored. Laville v. Bigue- naud, 15 La. An. 421; Cloon v- Gerry, 13 Gray, 201; Kidder v. Parkhurst, 3 Allen, 393.] 1. For maliciously and without Probable Cause for believing that the Plaintiff was about to quit England, procuring a Judge's Order for a Capias (under 1^2 Vict. c. 110, s. 3), on which Plaintiff was am sted. ( p) For that the defendant having commenced an action against the plaintiff, in the court of al Westminster, maliciously and falsely represented by f a false affidavit to one of the judges of the said court, (q) that the plaintiff was about to quit England, unless forthwith apprehended, and thereby maliciously, (r) and without reasonable or probable cause, obtained from the rder directing the plaintiff to be held to bail for the sum of £ • And thereupon and in pursuance of the said order, the defendant caused to be issued out of the said court, a writ of capias directed to the said iff of , whereby the said sheriff was commanded by our lady the (/-; S v. Lament, 3 M. procured the order, &c. was held good after N. !.'. 435; as to where verdict. Daniels v. Fielding, 16 M. & W. _ as ,-urli, is liable, 200. W. 745. (r) If malice or falsehood be not averred ('/' Th some imposi- the count will he had in arrest of judgment. tion, . practised upon the Dc Medina v. Groves, 15 L. J. Q. B. 284; judge, to maintain this action, and the mere Saxon >■. Castle, 6 Ad. & E. 652. See, also, rder for : being after- 1 Saund. 242 a, note (2) ; and see Pryce v. wards r not sufficient, though Belcher, 15 L. J. C. P. 305; Gibbons v an allegation that the defendant "falsely" Maynal, 3 C. B. 181. DECLARATIONS IN TOUT. MALICIOUS AIM:, queen, that [set out tcrit], (s) And the defendant caused the said wril to be indorsed for bail for £ , and to be delivered to the said sheriff to be i cuted, and caused the plaintiff to be arrested, (t) under and by virtue of the said writ, and to be detained for a Long time until («) he obtained his discharge by an order of a judge [or of the said court] duly made in that behalf, on the ground that he was not aboul to quil England, whereby the plaintiff Buffered pain and anxiety of mind, and was prevented from transacting his business, and was injured in his credit and circumstances, and incurred expenses (z) in ob- taining Ins release from such arrest and imprisonment 2. For maliciously causing Plaintiff to be arrested for a Larger Smn than teas really due. (?/) Jcnings v. Florence, 26 L.J. C. P. 277; 2 C. B. N. 8. 467; Churchill v. Siggers, 3 El. & Bl. 929; Gilding v. Eyre, 31 L.J. C. P. 174; 10 C. B. N. S. 592; Buffer v. Allen, 2 L. R. Ex. 15 ; 30 L. J. Ex. 17. 8. Against the Plaintiff in a former Action, "'ho having issued two concurrent Writs of Capias into different Counties, one of which was executed and the Debt thereupon paid, neglected to countermand the Second Writ, whereby it tvas executed, :> ; Spaids v. Bar- rett, 57 111. 289 : malice musl be alleged. Danchy v. Salisbury, 29 Conn. 124.] Tho legjal termination of the former suit must be alleged. See ante, Obs. 551. The omission to show that the suit has been determined is cured by verdict. See l Saund. 228 i \ general allegation that the suit was ended and determined, not showing how, would no doubt be sufficient after verdict, and perhaps on gem ral demurrer, but would probably be held insufficient on special demurrer. See forms. &c. referred to 2 Chit. PI. 7th ed. If the declaration state how the suit was termined, the particular mode alleged must, if denied, be proved. Coombe v. Capron, I M. & 18. Termination b sus by consent. Wilkinson v. Howell, M. & M. 495. Sufficient if by rule of court and payment of debt and. costs. Brook p. Carpen- ter, •". Bing. 297. Or by rule. &c. to dfe tinue. lb. 408 : < radd v. Bennett, 5 Price, 540; Tierce --.Strut,.". B. & Ad. 397 ; Bristow v. Heywood, I Stark. R. 48 : 4 Camp. 213; Webb o. Bill, 3 C. & P. 185; ML. & M. . r. Morgan, 13 Bast, 5 17 ; Brandt v. ock, 1 U. & ( '. 6 19. - : in which the original action is determi need not be such as in itself shows a wai nable cause. See pi t risb r. Richards, 3 A.d I, 7.".7 ; Wil- kinson c. Howell, supra. If no &c. in the original action, the defendant therein cannot sue for a malicious arrest till the piration of the time for declaring, the action not being otherwu mined, [b. writ of capias is no longer a step ill th< tion, and therefore the plaintiff i- not bound to declare before the end of tl term after the arrest I id v. Berry, 5 Q. B.551. Rule to discontinue sufficient pro ;. without producing the judgment roll. Watkii Lee, 7 Dowl. 498; S. C. G M. 6 W. 270. 554 DECLARATIONS IN TORT. MALICIOUS ARREST. essential ingredient in an action of the above nature. See form of declaration in Lewie v. Morris for neglecting to countermand a ca. sa.; and see Smith v. 1. rineton, 7 Ad. iV E. L67. See a form for refusing to receive a debt and costs for which plaintiff had been taken on a ca. sa. and which he tendered to defendant, and for refusing to direct the sheriff to discharge the plaintiff. Crozer r. Pilling, 4 B. & C. 26. 4. Other Forms for Malicious Injuries in Actions and other Civil Proceedings. It must be remembered that many of the under-mentioned forms were framed before the 1 & 2 Vict. c. 110, s. 3, rendered it necessary to obtain a judge's order before issuing a capias. The forms supra will enable the pleader to make the proper alterations in the following when necessary. A similar order may be obtained under the bankruptcy law consolidation act, 1849, 12 & 13 Vict. c. 106, s. 99, and the absconding debtors act, 14 & 15 Vict. c. 52. ■ 5. Against a Client and his Attorney for not releasing the Plaintiff after Satisfaction of Debt and Costs in an Action. Crozer v. Pilling, 4 B. & C. 26. 6. For a Malicious Arrest, without regard to a Set-off. Austin v. Debnam, 3 B. & C. 139. 7. For a Malicious Arrest on a Warrant of Attorney, without regard to the Defeasance. Saxon v. Castle, 6 Ad. & E. 652. («) 8. For maliciously issuing Execution on a Warrant of Attorney for a larger Sum than was really due. Gough v. Cribb, 11 M. & W. 497. (z) 9. For maliciously issuing Execution on a Cognovit. Wentworth v. Bullen, 9 B. & C. 840. 10. For a Malicious Arrest 'pending another Suit betiveen the same Parties. Hey wood v. Collinge, 9 Ad. & E. 268. 11. For maliciously causing the Plaintiff to be outlaived. . Drummond v. Pigou, 7 C. & P. 228 ; 2 Bing. N. C. 114. 12. Fo? maliciously causing an Extent to issue against Plaintiffs Groods. Craig v. Hassell, 4 Q. B. 481. (:) The word "maliciously" must be alleged in the declaration in these forms. Do Medina v. Grove, 15 L. J. Q. B. 284. DECLARATIONS IN TORT. MALICIOUS ARREST. 566 13. For maliciously obtaining a Warrant to arrest the Plaintiff for Poor Rates. Phillips v. Naylor, 3 II. & N. 14 ; 27 L. J. Ex. 222 ; 28 lb. 225. 14. For arresting a Privileged Witness, (a) Stokes v.White, 1 Cr., M. & R. 223 ; and see Magnay v. Burt, 5 Q. B. 381. 15. For maliciously issuing a Fiat in Bankrn/>try. Whitworth v. Hall, 2 B. & Ad. 695 ; Mellor v. Baddeley, 2 Cr. & M. 675 Hay v. Weakley, 5 C. & P. 8G1 ; Atkinson v. Raleigh, 3 Q. B. 79 ; Farley v. Danks, 4 El. & Bl. 493. See Dimtnock v. Bowley, 2 C. B. N. S. 42 ; 26 L. J. C. P. 231. Averment as to the termination of the proceedings. Kemp v. King, 1 Car. & Marsh. 396. FOR MALICIOUS PROSECUTIONS OF A CRIMINAL NATURE. (6) 1. For maliciously procuring a Warrant for Felony "gainst the Plain- tiff, on which he was arrested and remanded, and afterivards pre- ferring an Indictment against him, which ivas ignored, (c) For that the defendant falsely and maliciously, and without reasonable or probable cause, (d) appeared before a justice of the peace, and charged (e) the plaintiff with having feloniously stolen [describe the subject of the felony], and upon such charge procured the said justice to grant hia warrant for apprehend- ing the plaintiff and bringing him before the said justice, to be dealt with according to law, and by virtue of the said warrant caused the plaintiff to be arrested and imprisoned, and afterwards to be conveyed in custody (/) before (a) This action does not lie, though the towards brought for maliciously prefei arrest was made maliciously and with knowl- it, the action is sustainable if some of tl edge of the privilege, the privilege being that Bignments were preferred witl bable of the court and not of the person. Seethe cause. Ellis y. Abrahams, 8 Q. B. 709; 15 cases cited above, and Yearsley v. Heane, 14 L. J. Q. 1!. i^-'t. M. & W. 422 ; Phillips v. Naylor, ubi supra. (c) See forms, &c. Byne v. Moon (b) As to the law upon this subject, see Taunt. 187; Elsee v. Sm:; : ; . 2 Chit. 304. ante, Obs. ; Musgrove v. Newell, 1 M. & W. Against railway company, Mid- 587 and the authorities there referred to. land Ry. Co. 10 Ex.352; 23 L.J. Ex.328. The county courts have no jurisdiction in Form for maliciously charging plaintiff with this action". 9 & 10 Vict. c. 95, s. 58. To uttering threats againsl defendant's life, L0 support an action for an unfounded criminal Bing. 301. For obtaining a Bearch warrant, prosecution, the plaintiff must show, 1st, the and searching plaintiff's house, Hemsworth prosecution, and that defendant was prosecu- v. Fowkes, 4 B. & Ad. 149. [f the warrant tor, and the unfounded nature and want of was not procured until after arrest, say " that probable cause for the proceeding; 2dly, defendanl falsely [ire.], charged the plaintiff malice on the part of the prosecutor ; Sdly, with [^.], and upon such charge falsely the legal termination of the prosecution in [&c.J, procured the plaintiff to be an the* plaintiff's favor ; 4thly, injury resulting and taken into custody before a justice from the prosecution, by imprisonment or ex- [jj-c], and falsely [#-c.l, accused the plain- perise, or (if the charge be of a nature calcu- tiff of [■}■<■■}. before the said justice, and fated so to injure the plaintiff] prejudice to caused him to -rant bis warrant [jj him in his reputation. Ante, note; Bull. V showing arrest, sc. as in the text. P.13,14. The declaration must state all these ('/) [See Spaids v. Barrett, 57 HI. points, and such of them as are denied by the I - sufficient, and it is n< defendant's pleas must be proved by the - thai plaintiff gave information plaintiff at the trial. See the Obs. and notes, on oath; but, if stated.it must be pr at)t< ; and post, pleas, tit. "Malicious Ar- Gregory v. Derby, 8 C. & P. 749. rest." Where an indictment contains several (/) If before another justice, say 'betore assignments of perjury, and an action is af- one other justice [<$"c.]." ~>6 DECLARATIONS IX TORT. MALICIOUS PROSECUTION. the said ju i and procured the said justice to remand the plaintiff to i ml to be afterwards again conveyed before the said justice, when the odant caused the said justice to commit the plaintiff for trial and to prison. afterwards the defendant caused a bill of indictment (h) to be preferred the plaintiff at the central criminal court, Old Bailey [as case may re the grand jury, which was returned by the said grand jury not found ; (fl and the said prosecution was so ended, and the plaintiff was dis- charged from custody, whereby the plaintiff has been injured in his credit and atation, and has suffered in mind and body, and has been prevented from carrying on his business, and has incurred expenses in defending himself and obtaining his release from custody. OTHER FORMS FOR CRDIINAL PROSECUTION. 2. For a Malicious Prosecution for Perjury. Delisser v. Towne, 1 Q. B. 333 ; Ellis v. Abrahams, 8 Q. B. 709 ; Fitzjohn Mackinder, 8 C. B. N. S. 78 ; 29 L. J. C. P. 167. 3. For maliciously procuring Another to make a False Charge before a Magistrate. Delegal r. Highley, 3 Bing. N. C. 951 ; 5 Scott, 154. 4. For a Malicious Charge before a Justice, who discharged Plaintiff. Biggs v. Clay, 3 N. & M. 464. 5. For maliciously procuring, $c. a Search Warrant. Hensworth v. Fowkes, 4 B. & Ad. 449 ; Wyatt v. White, 5 H. & N. 371. 6. For maliciously procuring a Conviction before a Magistrate. Mellor v. Baddeley, 6 C. & P. 374 ; 2 Cr. & M. 67. 7. For maliciously exhibiting Articles of the Peace, $c. Venafra v. Johnson, 10 Bing. 307; Steward v. Gromett, 29 L. J. C. P. 120; 7 C. B.N. S. 191. 8. For a Malicious Prosecution before a Court Martial, (fc) Sutton v. Johnstone, 1 T. R. 493, 784. 9. By a Tenant against his Landlord, for maliciously charging him a Magistrate under the Police Act with having {Three Months ) wilfully damaged his Premises. Dowell v. Beningfield, 1 Car. & M. 9. If the plaintiff was then discharged, (h) If plaintiff were indicted before the ie justice having heard and con- petit jury, and acquitted, see form, Dubois him touching the v. Keats, 11 Ad. & E. 329. ■J™ V M ' ! l and decided (i) See Bvne v. Moore, 5 Taunt. 187; that the plainl not guilty thereof, and [Stanliffe v. Palmeter, 18 Ind. 321.] ilaintiff, fully acquitted of the (/„) This was held not to be a good cans* wme; and to dant hath not further of action. prosecuted the same, but the same is fully ended and determined." DECLARATIONS iN TOBT. MANDAMUS. 557 MANDAMl'S, WRIT OF. Obs. — By the common law procedure act, 1854, s. 6ft, " The plaintiff in any ac- tion in any of the superior courts, except replevin and ejectment, may Lndo upon thewril and copy to be served a notice thai the plaintiff intend claim a writ of mandamus, and the plaintiff may thereupon claim in the dec- laration, either together with any other demand which may now be enfon e I in such action, or separately, a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally inter- ested;" s. 69, "The declaration in such action shall sel forth sufficient o-rounds upon which the claim is founded, ami shall set forth thai the plain- tiff is personally interested therein, and that he sustains or may sustain dam- age by the non-performance of such duty, and that performai thereof has been demanded by him, and refused or neglected;" s. To. " The pleadings and other proceedings in any action in which a writ of mandamus j s claimed shall be the same in all respects, as nearly as may be, and costs shall be re- coverable by either party, as in an ordinary action for the recovery ol dam- ages;" s. 71, "In case judgment shall be given to the plaintiff thai a man- damus do issue, it shall be lawful for the court in which Buch judgi given, if it shall see fit, besides issuing execution in the ordinary way Eor the costs and damages, also to issue a peremptory writ of mandamus to tic de- fendant, commanding him forthwith to perform the duty to be enforce 1: " 3. 72, "The writ need not recite the declaration or other proci or the matter therein stated, but shall simply command the performance of the du and in other respects shall be in the form of an ordinary writ of execution. except that it shall be directed to the party and not to the sheriff, and may be issued in term or vacation, and returnable forthwith, and no return thereto, except that of compliance, shall be allowed, but time to return it may. upon sufficient grounds, be allowed by the court or a judge, either with or without terms;" s. 73, " The writ of mandamus so issued as aforesaid shall have the same force and effect as a peremptory writ of mandamus issued out of the court of queen's bench, and, in case of disobedience, may be enforced by attach- And by the common law procedure act, 1860, 23 & 24 Vict. c. 126, b. 32, " In all cases in which a writ of mandamus is issued under the provisions of the common law procedure act, 1854, such writ shall, unless otherwise or- dered by the court or a judge, in addition to the matter directed to be in- serted therein, command the defendant to pay to the plaintiff the costs ot pre- paring issuing and* serving such writ; and payment ol such costs may be enforced in the same manner as costs payable under a rule of court are now by law enforceable." Sect. 68 only facilitates the mode ot proceeding in cases in which, before the passing of this act, a writ of mandamus would have lain. Therefore, it does not extend to a duty arising out ol a mere per- sonal contract. Benson v. Paul. 6 EL & BL 273; 25 L J. Q. B. 274. See, also, Norris v. The Irish Land Company. 8 EL & Id. 512; 23 L.J. < >. B. 115, where see a form. Nor will it lie where there is any other remedy. Bush V. Beavan, 32 L. J. Ex. 54, where see a form. See, also, Burland v. Local Board of Kingston, 32 L. J. Q. B. 17; Fotherby ». Bfctropohtan Ry. .Co. 36 L.J. C. P. 88. See, also, Ward v. South Eastern Ry. I o. 29 L. J. Q. B. L77. When a mandamus will he granted againsl a local board, R. v. Darlington, 35 L. J. Q. B. 45; Worthington v. Hulton, 35 L.J. <>■ B. 61 : . I. . U. l ^. B.63. Mandamus to railway company, to issue warrant to Bheriff under lands clauses act. Fotherby v. The Metropolitan Ry. Co. L. R. 2 C. P. 188. J A declaration for a mandamus to levy a rate to pay a I gCK>d, though it does not state the amount of the debt. Ward v. Lowndes, 29 L. J. (J. i». 40- 28 L. d. Q. F>. 265, where Bee a form. The commencement of the declaration is as usual. The body oi the declara- tion must set out the -rounds upon whieh the writ is demanded, and that the plaintiff is interested in the performance of the duty, and will he damaged by the non-performance, and that a performance has been demanded, and that there has been a refusal or neglect, and alleged performance ot condi- tions precedent, and conclude : » and the plaintiff claims a writ ot mandamus 558 DECLARATIONS l.\ TORT. MASTER AND SERVANT. Obs. to command the defendant," setting out what is required by the mandamus shortly and clearly. If necessary, a count may be added for a claim, besides the writ of mandamus, in the usual form, the claim at the end being only in respect of the last count. See a form, Copeland v. North Eastern Ry. Co. 6 El. & Bl. 27 7. MARKETS. Obs. — As to what is a market, see Com. Dig. Market. The owners of a market mav bring trespass for an injury to their freehold. Mayor of Northampton V. Ward. 1 Wils. 107. See the markets and fairs clauses act, 10 Vict. c. 14. See forms of declaration for disturbance of a market by opening a new one, 2 Chit, on PI. 7th ed. 626. The lord of an ancient market may by law have a right to prevent other persons from selling goods in their private houses situ- ate within the limits of his franchise. Mosley v. Walker, 7 B.& C. 40, where see a form. See, also, Mayor of Devises v. Clark, 3 Ad. & E. 506; Bridg- land v. Shapter, 5 M. & W. 376. But the grantee of a newly created mar- ket cannot, by virtue of such grant merely, maintain an action for disturbance against a person selling marketable articles in his own shop, within the fran- chise. Mayor of Macclesfield v. Chapman, 12 M. & W. 18. See Mayor of Macclesfield v. Pedley, 4 B. & Ad. 397. As to where a market may be held, see De Rutzen v. Lloyd, 5 Ad. & E. 456. Form, Brid»;land v. Shapter, 5 M. & W. 375; 8 L. J. Ex. 246. See, also, Thompson v. Gibson, 7 M. & W. 456; 10 L. J. Ex. 330. The venue is local. MASTER AND SERVANT. See " Negligence," post. 1. For seducing Plaintiff's Daughter and Servant. Obs — As to the law upon this subject, see, generally, Bac. Ab. Master and Ser- vant, O. ; 2 Stark. Ev. 3d ed. 288, tit. Seduction. The new county courts have no jurisdiction. 9 & 10 Vict. c. 95, s. 58. An action of this kind, founded on the supposed relationship of master and servant, is the only rem- edy provided by law for a parent for the seduction of his child. There must be some proof of the daughter's service of the slightest kind, or of her liabil- ity to serve, or at least that she was living with her father as part of his family, and liable to his control and command. Maunder v. Venn, M. & M. 324, per Littledale J.; [Terry v. Hutchinson, L. R. 3 Q. B. 599;] Manlv v. Field, 7 C. B. N. S. 96 ; 29 L. J. C. P. 79 ; [Robinson v. Burton, 5 Harring. 335; Ellington v. Ellington, 47 Miss. 329; Sutton v. Huffman, 3 Vroom, 58; Patterson v. Thompson, 24 Ark. 55 ; 1 Chitty PI. 69, note (,?/);] Harris v. But- ler, 2 M. & W. 539, where see a form for seducing defendant's own appren- tice. A contract to serve, or payment of wages, need not be shown; and the circumstance of the daughter being of age, or being at the time absent on a vi-i!. i~ immaterial, if she intended to return home. lb. ; [Greenwood v. Green- wood, 28 Md. 370; Griffiths v. Teetgen, 15 C. B. 344; Manly v. Field, 7 C. B. N. S. 96. In Sutton v. Huffman, 3 Vroom, 58, the daughter was over twenty-one. Lipe v. Eisenlord, 32 N. Y. 229.] But where the daughter was i" th< of another person at the time of her seduction; Dean v. Peel, 5 Bast, 45; or was in the defendant's service; Harris v. Butler, supra ; unless he hired her for the purpose of seduction; Speights. Oliviera, 2 Stark. R. 498; [Dab v. Wickoff, 18 N. Y. 46; S. C. 3 Selden, 191;] no action lies for seduction, though the daughter returns home and occasions expense, &c. See v. Williams, 10 Q. B. 725; 16 L.J. Q. B. 369; Eager v. Grimwood, Ex. c>\ ; 16 L. J. Ex. 236; [Terry v. Hutchinson, supra;'] Thompson v. 5 H. & X. 16; 29 L. J. Ex. 1; [Evans v. Walton, L. R. 2 C. P. 615. Especially where the daughter is of age and is absent from home under a contract made by her for her own benefit; Lee v. Hodges, 13 Grattan, 726. But see 1 Chitty PI. 69, note (y) ;] and although she had the intention of re- turning to the father's service after she had quitted the defendant's. Blay- DECLARATION'S IN TORT. MASTEB AKD BEBVANT. 559 Obs. mire v. Haylcy, G M. & W. 55; [and though, during any leisure time, Bhe had been in the habit, with the permission of her master, of assisting in the work by which her parent earned a livelih I. Thompson v. Ross, :, II. & N. 16. Sec Hedges v. Tagg, 41 L. .1. \. S. Ex. 169; S. C. L. R. 7 Ex. 283. Bui ac- cording to numerous decisions of the courts of New York, Pennsylvania, and some other of the American Btates, the relation of master and Bervanl be- tween a father and his daughter in Buch cases is sufficiently proved by evi- dence that the daughter was a minor and thai the father had a right to her services. Those decisions also lay down the rule thai the effcel of Buch evi- dence is not impaired by the fact, thai at the time of the injury. Bhe was living in her father's family, but was in the actual employmenl of another person; and they hold that such a fact would not justify the inference that the father had abandoned any of his paternal rights, unless the daughter has been actually bound out as an apprentice. In oilier words, the relation results constructively from his right to reclaim the custody of her person, from his responsibility for her education, and from his obligation to support her if she should become sick or disabled while bo absenl from home. Martin v. Payne, 9 John. 387; Nickleson v. Stryker, 10 John. 115; Clark v. Fitch. 2 Wend. 459; Bartley v. Richtmyer", 4 Comst. 38; Sargenl v. ■ 5 Cowen, 106; Fn- gersoll w.Jones, 5 Barb. 661; Mulvehall o. Millward, 1 Kernan, 343; Horn- fceth v. Barr, 8 Serg. & R. 36 ; Van Horn >-. Freeman, i Halst. 322; South v. Denniston, 2 Watts, 474; Boyd r. Byrd, S Mackf. 114: Bolton v. Miller. 6 Ind. 262; Roberts v. Connelly^ 14 Ala. 241; Parker v. Meek, 3 Sneed, 34; Mercer v. Walmsley, 5 Harr. & J. 27; 1 Chitty PI. 69, note (>/). In Ken- nedy v. Shea, 110 Mass. 147, which was an action by a father for the seduc- tion of his daughter, it appeared that she was employed by a third person, but that the plaintiff required her to spend a part of every Sunday at hoi and that while there she did work for him. It was held thai the relation of master and servant existed, so that he could maintain the action. See Bist u. Fuax, 4 B. & S 409.] Expense only will not suffice, the loss of service is, in law, the gist of this action. Boyle v. Brandon, 13 M. & W. 738; Grinnell w.Wells, 7 "M. & G. 1033; 2 D. &" L. 610. A master, though no relation, Fores v. Wilson, Peake R, 55, or an aunt, or person who has adopted the party seduced, may be the plaintiff. Sec Edmonson v. Machell, 2 T. R. 4: Irwin v. Dearman, 11 East, 23; [Ball v. Bruce, 21 111. 161. So may the widowed mother. Gray v. Darland, 51 N. Y. 424; Damon v. Moore, 5 Lansing, 454; Sargent v. , 5 Cowen, 106; Parker v. Meek, 3 Sneed. 34; Felkner o. Scarlet, 29 Ind. 194. So may a step-father. Maguinay v. Saudek, 5 Sneed. 146; Bracy ». Kibbe, 31 Barb. 273. In Iowa, by statute, the person Beduced may prosecute as plaintiff, an action for her own seduction. So the lather, and in certain cases the mother, mav prosecute for the seduction of the daugh- ter, and the guardian may sue for the seduction of his ward; thoogh the daughter or ward be not living with, nor in the service of the plaintifl at the time of the seduction, or afterwards, and thee be no loss of service ; but when the action is brought bv the guardian, the damages recovered shall inure to the benefit of the ward, haws of Iowa (i860), p. 492, §§ 2790, 2 , 91. It is not necessary that the defendant should have used any artifices or false promises to accomplish his purpose if the Beduction has been accomplished, whether by deception or solicitation, the action may be maintained. Reed v. Williams, 5 Sneed, 580. So although it was accomplished by force, and against the consent of the seduced. Damon v. Moore. 5 Lansing, 454; Ken- nedy v. Shea, 110 Mass. 147; Furman v. Apple-ate. 3 Zabr. 28; but see Ho^an o. Cregan, 6 Rob. (N. Y.) 138.] Remoteness of damage* Boyle v. Brandon, supra. [As to damages, Bee further, Berry v. De Costa, L. R. 1 C. P. 331; Terry v. Hutchinson, L. R. 3 Q. B. 599.] 1. For loss of Services caused by the Seduction of the Plaintiff's Ser- vant. That the defendant debauched and carnally knew A. B., then being the [daughter and] servant (I) of the plaintiff, whereby she became pregnant and (I) This allegation of service is sufficient. Martinez v. Gerber, 3 M. & G. 89. ."till DECLARATIONS IN TORT. MASTER AND SERVANT. was delivered of a child, (???) and the plaintiff thereby lost her services, and incurred expense in nursing and in obtaining medical assistance for her. (??)] 2. For , ntieing away the Plaintiff's Workmen, whereby he was unable to complete an Agreement, $c. (o) For that E. F. was and is the servant of the plaintiff in his trade of ; yet the defendant, well knowing (p) the same, wrongfully enticed and pro- cured the Baid E. F. unlawfully, against the will of the plaintiff, to leave his said Bervice, whereby the plaintiff has been deprived of the service of the said E. F. [state special damage, if any, see last edition of this work, p. 591, ■m 2.] 3. For enticing away the Plaintiff' 's Servant. Evans v. Walton, 36 L. J. C. P. 307 (?) ; [L. R. 2 C. P. 615; Cox v. Muncey. 6 C. B. N. S. 375.] [3a. Count for receiving and harboring the Plaintiff' 's Servant, (r) That (j. II. was and still is the servant of the plaintiff in his business of a and unlawfully and without the consent and against the will of the plaintiff departed from the service of the plaintiff; and the defendant, well knowing the premises, wrongfully and without the consent and against the will of the plaintiff, received, harbored, and detained the said G. H., and refused to deliver the said G. II. to the plaintiff, although requested by the plaintiff to do so ; whereby the plaintiff lost the service of the said G. H. in his said business.] 4. By the Master for an Injury done to his Servant, (s) By careless driving. Martinez v. Gerber, 3 M. & G. 89 ; "Williams v. Hol- land, 10 Bing. 112 ; Hall v. Hollander, 4 B. & C. 660. (?/i) [Richardson v. Touts, 11 Ind. 466 ; used need not be particularized. Willes, Whitney v. Elmer, 60 Barb. 250. But there 577. are many cases in which it has been held that (7) [S. C. L. R. 2 C. P. 615; Stowe v. it i- not Decessary to the support of this ac- Heywood, 7 Allen, 118.] Service de facto is tionthat thedaughter or servant should have sufficient, and proof of contract of service is been delivered of a child or become preg- not necessary. Evans v. Walton, 36 L. J. nant. Abrahams v. Kidney, 104 Mass. 222; C. P. 307 ; [S. C. L. R. 2 C. P. 615.] Vanhorn v. Freeman, 1 Balst. 322 ; Boyce v. (r) [See Blake v. Lanyon, 6 T. R. 221 ; ■ N. V. 644, 046.] Forbes v. Cochrane, 2 B. & C. 448; Sykes [Other like forms, Davits/-. Williams, v. Dixon, 9 Ad. & E. 693.] 1" . Smith, 413; Van Leuven v. Lyke, 1 Comst. 515; S. C. I Denio, 127; Wheeler v. Brant, 23 Barb. 324; Buckley v. Leonard, 4 Denio, 500; Scribner v. Kcl- ley, 38 Barb. 14. But a declaration charging that the defendant wrongfully kept a horse accustomed to bite mankind, and thai the defendant knew it, need not aver that the injury complained of was received through the de- fendant's negligence in keeping the horse. Popplewell v. Pierce, 10 Cush. 509; May v. Burdett, 9 Q. B. 101; Jackson r. Smithson, 13 M. & V. Card v. Case, 5 M., G. & S. 622; Kelly r. Wade. 12 Ir. Law Rep. 424.] For the vicious acts of an animal of an ordinarily quiet nature, the owner is. gen- erally speaking, not liable. [Fairchild v. Bentley, 80 Barb. 147; Van Leu- ven v. Lyke, 1 Comst. 515; Vrooman v. Lawyer. 13 John. 339.] For such acts as are in accordance with his ordinary nature he is liable: and he is also liable for his vicious acts if he knew thai the animal was accustomed or was likely to commit any such acts. [Steel V. Smith, 8 E. D. Smith, 821; Dearth v.Baker, 22 Wis. 73; Vrooman v. Lawyer, 13 John. 889; Van Leuven ,-. Lyke, 1 Comst. 515; S. C. 4 Denio, 127; Auchmuty v. Hani, l Denio, 195; Smith v. Causey, 22 Ala. 568; Decker v. Gammon, n Maine, 822; Bewes v. McNamara, 106 Mass. 281; Frazer v. Kinder, 9 X. Y. Sup. Ct. 514; Vinton v. Schwab, 82 Vt. 612. As to bees, see Earl v. Van Alstyne, 8 Barb. 630; 1 Chitty PI. 93, note O 3 ).] For the acts of an animal ordinarily vicious the owner is liable. Cox v. Burbidge, 32 L. J. C. P. 89; [18 C. B. N. S. 430.] A man has a righl to keep a fierce dog for the protection of his property, [Logue v. Link, I E. 1>. Smith. 63; Laverone v. Mangianti, 44 Cal. 138,] but he has no right to put the dog in such a situation, in the way of access to his house, that a person innocently coming for a lawful purpose may be injured by it. He has no righl to place a dog so near to the door of his house, that any person coming to ask for money. 01 on any other business, mighl be bitten. And so with respecl to a foot- {>ath, though a private one, a man has no right to put a dog with such a ength of chain, and so near that path, that he can hit.' a person going along it. °And if there is a notice, it is no defence, unless the party is in such a vol. n. 36 DECLARATIONS IX TORT. MISCHIEVOUS ANIMALS. Obs. situation in lit'.' as to 1"' able to avail himself of it. Per Tindal C. J. Sarch v. Blackburn, 4 C. & P. 300. [If an owner of a mischievous dog permits it to be at larg< bis premises, and a person is bitten by him in tbe daytime, the- owner is liable in damages notwithstanding the injured person was tres- passing on Lis grounds by Hunting in his woods without bcense. Loomis v. I itv. 17 Wend. 496; Sherfey v. Bartley, 4 Sneed, 58; Maule J. in Barnes Ward, 9 C. B. 120; Bird v. 1 1, ill. rook, 4 Bing. 628; Lynch v. Marden, 1 Q, B. 37; Norris v. Litchfield, 35 N. II. 271, 278, 279.] As to plaintiff having been warned of the dog, see Curtis v. .Mills, 5 C. & P. 489. It is not essential that the animal should be the property of the defendant. If he harbors it. or permits it to be on his premises, that is sullicient. McKone v. W(y I, 5 C. & 1'. 1. [Or has charge of it. Wilkinson v. Parrott, 32 Cal. 102; Frammell v. Little, 16 Ind. 251. An agister of cattle is liable for dam- • done by them. Sheridan v. Dean, 8 Met. 284. See Barnum v. Vandu- . 16 Conn. 200.] The owner of a vicious animal, after notice of its hav- ing done an injury, is bound to secure it ar all events, and is liable, if the mod.- he has adopted to secure it is insufficient. Blackmail v. Simmons, 3 C. & P. !.;-: Charlwoodw. Greig, 3 C. & K. 48; [McCaskill v. Elliott, 5 Strobh. 196; Pickering v. Orange, 2 111. 492; McManus v. Finan, 4 Iowa, 283; Stumps v. Kelly, 22 111. 140; Woolf v. Chakler, 31 Conn. 121; Koney v. Ward, 86 How. Pr. 255; Marsh v. Jones, 21 Vt. 378; Wheeler v. Brant, 23 Barb. 324; Kittredge v. Elliott, 16 K H. 77; Arnold v. Norton, 25 Coun. 92; Lav. ion, • v. Mangianti, 44 Cal. 138; Frazer v. Kimler, 5 N. Y. Sup. Ct. 16.] Where a bull injured the plaintiff, who wore a red neckerchief, a declaration by the owner that he knew the bull would run at anything red. was held to be evidence of the scienter. Hudson v. Roberts, 6 Ex. 699; 20 L. J. Ex. 299. S.e. also, Stiles v. The Cardiff Steam Navigation Co. 33 L. J. Q. B. 310. As to when a man is justified in killing a ferocious dog belonging to another. Morris v. Nugent, 7 C. & P. 572; 1 C. & P. 104; [1 Chitty PI. 188, note (/). Or any other ferocious beast, see Williams o. Dixon, 65 N. C. 416. As to trespasses by cows, sheep. &c. of one person upon the land of others, see 1 Chitty PL 93, 202, and notes; Cate v. Gate, 50 N. II. 144; Lyons v. Merrick. 105 Mass. 71 ; McBride v. Lynd, 55 111. 411; Keenan o. Cavenaugh, 44 Vt. 268. As to injuries done by several animals of different owners, see 1 Chitty PL 93, note (u 1 ); Shearman & Red. Negligence, § 198.] A general averment in the declaration that the dog was of a ferocious and mis- chievous disposition, and accustomed to bite and attack men or animals, is sufficient. Hartley v. Harriman, 1 B. & Aid. 620; Jenkins v. Turner, 2 Salk. 661. By the 28 & 29 Vict. c. 60, s. 1, the owner of a dog which does any injury to Bheep or cattle is made liable in damages, without any proof of previous mis- chievous propensity in the dog, or of any knowledge on the part of the owner, or thai the injury was attributable to the neglect of the owner. If the dam- ages claimed do not exceed £5, they shall be recoverable summarily before a justice of the peace. By s. 2. the occupier of any house, or part of a house or premises, where the do;: was kept, or permitted to live or remain at the time of the injury, is to be deemed the owner, in the absence of any proof to the contrary. 1. For suffering a Ferocious Dog to go at large, ivhich injured the Plaintiff, (t) That the defendant wrongfully kept a dog of a ferocious and mischievous (}) B i.ilar form for keeping a mis- knowingly keeping disease. I sheep which in- chi.vou- ram, Jackson r. Smithson, 15 M. fected the sheep of the plaintiff, Cooke v. i monkey, May v. Burdett, 9 Waring, 2 II. & C. 3.32; for fraudulently '.! '■■ i" :: "■ L. J. Q. B. 64; 15 L. J. Ex. Belling a cow as sound, knowing it to tw dis- 311; and other forma in Hartley v. Hani- eased, which infected other cows of the plain- Ud. 620; (unis v. Mills, 5 C. tiff, Mullett v. Mason, L. R. 1 C. P. 559.] ft P. 489. Where the damage done is not to As to evidence, see [Thomas v. Morgan, cattle or sheep, thi is die gist of the supra;] Gettring v. Morgan, 5 W. R. 536; action, [b. ; Thomas v. Morgan, 2 Cr., M. Rose. & Harr. Ind. See, further, test, pleas. & B. 496; 28 & 29 Vict. c. 60. [Count for DECLARATIONS IN TOBT. MINKS. nature, well knowing thai the said dog was accustomed to bite mankind '•'knowing that the said dog was of a ferocious and mischievous natui and the said dog, whilst the defendant kept the Bame, attacked and l>it and wounded the plaintiff, and thereby the plaintiff was for a long time unable te do his business, and incurred expenses in getting cured of the said wounds. [A like count. Worth v. Gilling, L. R. 2 ( '. P. I ; against a corporation, Stiles v. Cardiff Steam Nav. Co. 33 L. J. Q. B. 310.] 2. Under 28 $ 29 Vict. c. 60, for keeping a Dog which worried Plain- tiff's Sheep, (x) That at the time of the committing of the grievances hereinafter mentioned the defendant was the owner of a certain dog, and injury was done to divers cattle \or sheep, or cattle and sheep] of the plaintiff by the said dog of the defendant. 3. By a Master for an Injury done to his Apprentice by Defendant' 'a Dog, stating Special Damage for the loss of the Apprentice 1 s Services during the whole Time he was to serve. Hodsoll v. Stallbrass, 11 Ad. & E. 301 ; 9 C. & P. 63. 4. For Injuries occasioned by Defendant's Ox running at the Plain- tiff- GO That the defendant was possessed of a wild and vicious ox, and it was unsafe and improper to drive, or permit the said ox to go through any public high- way, of all which the defendant had notice; yet the defendant wrongfully and negligently, by his servants, drove the said ox, so being wild and vicious as aforesaid, in a certain public highway, whereby the said ox ran at and against the plaintiff, who was then passing in and along the said highway, and wounded and injured him [state damage as in Form 1]. MINES. Obs. — The owner of a mine must not work it so as to let down the surface. See Humphries v. Brogden, 12 Q. B. 739; Rowbotham v. Wilson, 8 H. L. 3G0; Caledonian Ry. Co. v. Sprot, 2 McQ. Sc. Ap. 451; Gale on Basements, by Willes, p. 310; and see post, " Support." As to breaking and entering mines, see post, " Trespass to Realty." As to the law relating to the duties of land-owners, see Fletcher v. Rylands, 35 L. J. Ex. 154; I.. It. 1 Ex. 265; Groucott v. Williams, 32 L. J. Q. B. 237. [As to the liability ol railway company to pay compensation in respect of mines lying under grounds taken by them, Great Western Ry. Co. r. Bennett, 36 L. J. Thomas v. Morgan, 2 Cr., M. & R. 496; bull through a Street, knowing that it ran Card v. Case, 5 C. B. 622. at anything red, Hudson r. Roberts, 6 Ex. (y) Where the defendant employed a li- 697 ; 20 L. J. Ex. 299. 5 Gray, 501; Lucas v. New Bedford &c. R. R. 6 Gray, 64; Todd v. Old Colony & Fall River R. R. 3 Allen, 21; Bigelow J. in Wright v. Maiden .X Melrose R. R. Co. A Allen, 280; Beisiegal v. N. Y. Central R. R. Co. 10 V V. 9; Stublej i>. North Western Ry. Co. L. R. 1 Ex. 13; Pittsburgh &c. R. R. Co. v. McClurg, 56 Penn. St. 29*4; Glassej v. Hestonville &c. R Co. 57 Penn. St. 172; Crafterw. Metropolitan Ry. Co. L. R. 1 C. P. 300; Biles v. Holmes, il [red. (Law) 1G ; Gilman c. Deerfield, 15 dray. ."i77. •■ A scintilla of evidence, or a mere surmise that there may have been negligence on the pan of the defendants, clearly would not justify the judge in leaving the case to the jury; there must be evidence upon which they might reasonably and prop- erly conclude that there was negligence." Williams J. in Toomey '•. Lon- don &c. Ry. Co. 3 C. B. N. S. 1 16, 150; Avery v. Bowden, 6 El. & Bl. Mellors v. Shaw, 1 I>. & S. 443 : Cornman v. The Eastern Counties Ry. Co. 4 H. & X. 781; Mauled, in Peachey u Rowland, 13 C. B. 186; Wittkowsky v. Wasson, 71 X'. Car. 451, 154, 155; Ryder v. Woombwell, L. R. I Ex. 32; Beaulieu v. Portland Co. 48 Maine. 291, 296. As to what this and means, see the explanation given by Chapman J. in Denny v. Williams, 5 Allen, 5.] It has been held that the breaking down of a coach is presump tive evidence of the unskilfulness of the driver, or the insufficiency of the coach. Christie v. Griggs, 2 Camp. 78; Curtis o. Drinkwater, •_' B. & Ad. 169; Israel/-. Clark. I Esp. 259. In actions against railway companies for negligence, for not safelj carrying, the onus may be upon the defendan explain the cause of the occurrence. Carpue o. London >X Brighton Ry. Co. 5 Q. B. 571; 18 L.J. Q. B. 183. Thus, a collision between train- of the same company is prima evidence of negligence, skinner o. London 6 Brighton Ry. Co. 5 Ex. 787. [ s "' Brehm v. Great Western R R. 34 Barb. 256. For other causes of accidents which create presumptive evi- dence of negligence in carriers of passengi Ware v. Gay, il Pick. 106; Edgerton v. Harlem R. R. Co. 89 X. V. 227; S. C. 35 Barb. Yonge v. Kenney, 28 Geo. Ill; Stockton r. Frey, 4 Gill, 406; McKi Neil, l McLean'. 540; Faircbild v. California Stage Co. 13 Cal. 599; Farish v. Reigle, 11 Grattan, 697; Sullivan v. Reading L. K. Co. 80 Penn. S 566 DECLARATIONS IN TORT. NEGLIGENCE. Chicago, B. & Q. R. R- Co. v. George, 19 111. 510.] If a railway company place beyond their own line, they are liable for the nt- who own the line over which thev pass. ern " II. & X. 991 : 31 L. J. Ex. 346; [Birkett p. Whitehaven II. .\ X. 730; Thomas v. Rhvninev Rv. Co. L. B 5 Q. B. 226; S. Buxton . North Eastern Ry. Co. L. R- 3 Q. 1 Cai Penn. R. H. Co. 21 Wis , 582; Wheeler v. San Francis . R. R I QHnois Central R. R. Co. v. ( nd, 24 111. I _ See, as .iont. and Connecticut. Xu:-; _ . Connecticut Farmer- :_'.-: . Champlain Trausp. Co. :; . \ • Havc-n R. R. I __ an. 1. As to New York. them Ex] - a, 41 Miss 2 S itht-rn E -- .SI 58 G . 519; Carey .11. K. Buffit p. Troy & Boston R. R. Co. 36 Barb. 42 : Quimby ; Willi ms . Vanderbilt, 28 X. Y. 217.] Biit negbg by proving that the accident arose through the wilful an _ 2 Latch v. Rumner Rv. I .27 L. J. Ex. 155. sed by vis major and not by the u 2 2 ce of th- Marsland, Ex. 2 Central L. J. 523.] A railway company are bound, in the formation of their line, to construct their works in such a manner as to be capable of : 2 lenee of weather which in the clin. tntry through which the line runs, might be expected, although, perk :eur; and where the accident is allesed to have happened in consequence or improper c - :ion. th _ 5 way will amomv .ence of its insufficiency, and this evidence may becom- from the absence of any proof on the part of the company to rei stern Rv. of Canada p. Fa". - Braid. 1 Moo. P. - Jut. X. S. 339. See Withers p. North Kent Ry. Co. 27 L. J. Ex. ? H. &N. . S Virg ic R. R. Co. v. Sanger, 15 Gr i fee. R. R. Co. p. II _ . Bush, 141;] and see per Bramwdl B. Ruck p. Williams. 3 H. & X. J; 27 L. J. Ex. 357. And in mal-: 3 line the company must employ proper and competent engine a and woi I Holyhead Ry. Co. 2 Ex. 251. railway companies do not. by their contract to carry, impliedly warrant that their ear: 1 . - re roadworthy, and if an injury is caused by a hidden . their carriage, which no amount of care or jver. thev are not liable to a pa-- an injury. Read- head p. Th 1 I 36 L. J. Q. B. 181; L. R 2 Q. B". 412: [L. R. 4 Q. 1 lithe cases. Blackburn J. however, in this c differed from the court, and held that a company :nd. at its peril, to 2 - with carriages reasonably sufficient for the journ ar. in injury r. _ from a latent del- 1 _ B. ::.rer in a coach received an injury solely by reas ne of the iron axle-trees, in which ther.- was a very small: rounded by sound iron one fourth of an inch thick, and ■*"! scovered by the most careful .it was he proprietors of the coach were not responsible for the injury tl. - Grote v. < 2 Ex. 255; Simmon- p. Stage I " 1 Grattan. Maine, 279; Flint v. Norwich & N. Y. T. Co. 34 L R. N'. Y. v D p. N B nnibal seph R. Penn. R. It. 4 Penn. St 225; Fran ;k- . Baron. L. R. 5 C. P. 137; B mi igton >: nn p. London & Xorth ^ v . J. Q. I;. : S/C. 1 Lunl p. Lon 1 rth Wes L. R. 1 Q.B. 277; I . London. Brighton, & Soirh 1 - - - . ■•,. x N u . J. Ex. . ::. 1 Ex.: - pley v. London & North W( - : L. It ! Ex. 2! : Skelton »•. Lon 1 n &B 36 L. J. C. P. 249; [L. R. 2 C. P. 631; North Eastern Rv. Co. r. -. L. R. 7 H. L. "jrth Eastern Rv. Co. L. R."9 DECLARATIONS IN' TOBT. KBGUG1 Obs. Q. 15 409; K BL 9 C. ] Western By. C . I.. mere f .. :nan drii D,- in an action fo L!~ joy v. Dola side, lie must use mow sarv if he were on his right driver of a which is on I law of the ro;. bv him fro i with a careles?lv and re< nnard v. B - ' Main-.-, nd-owner wl such a nature that if it escapes thereon, has an absolute dutv impo- him to pr . Rylan J. Ex. • [L. R. 3 H. L. 330. But - - •'- 523 B rn r. Colli - [The law regards proximate and not remou acts of negligent of injury from a d law re- nceofth ■ - - Lund p. Tyngsborongh, 11 C McGr - Penn. - R. 52 N. H. 528, -.of ' proximate cause ' by the eo urallv led to. and which might have been • in producing the Benn- I, 20 Wend. 223 ; Ryan atralR. R, Co. River Bv. Co. r. Keighron, 74 Penn. St. 31 Ken • ' Pem St. 353 ; 399: Conn. Life Ins. Co. p. N o. Berkley, 1 Strobh. 525, I - fire c:. - one of th . - of a railro ,.39 MI. 115. 141 . R. R. l,hio R - L Sh : 1-] Tr . — Parties joint* in the Uable. notwithstanding a'private anangement ma E 4B. & C. 223. of horses to draw i: for th ne Quarman v. Bm Chi" r. (11th Am. act which caused the note (6).] And wh« it was.. thatth. - in the carriage, had, at the time crer, who was _ Bootl. ndant mav i the latter c ■ •ton r. Harder: 223: Wi r. Edwards. 5 T. R - S T. R. i'iul an : of tl L B. & Aid. 590. 1 of the servant which caused the accider. of his master, the latter is Uable. Limpus r. The London Ge:. aibus 568 DECLARATIONS IN TORT. NEGLIGENCE. Obs. Co. 1 II. & ( . ."-26; 32 L. J. Ex. 34; Greenwood v. Seymour, 7 H. & N. 355; 30 L. J. Ex. 327; [Rounds v. Delaware, Lackawanna & Western R. R. Co. 5 \. V. Sup. Ct. 475; Howe v. Newmarch, 12 Allen. 49; O'Brien v. Boston & Worcester R. R. Co. 15 Gray, 20; Moore v. Fitchburg R. R. Co. 4 iv. 465; Ramsden v. Boston & Albany R. R. Co. 104 Mass. 117; Hi"-"-ins Watervliet T. & R. R. Co. 46 N. Y. 23; Jackson v. Second Avenue R. R. t i. 47 X. V. 274.] There must be blame on the part of the servant, and there is it' he do nol exercise a sound judgment. Jackson v. Tollett, 2 Stark. 39; Mayhew v. Boyce, 1 Stark. 423. And the servant is bound tc warn the passeng< r of a danger of which the servant is cognizant. Dudley v. Smith, 1 Camp. 167. One of the questions to be left to the jury is. whether, at the time of the act complained of, the servant was driving on his master's busi- ud with his authority. Patten v. Rea, 2 C. B. X. S. 60G; 26 L. J. C. P. 235. N >c< of Fellow Servants. — But although the master is liable to third per- ns for the negligence of his servant, as we have seen, yet he is not liable to his servant for the negligence of a fellow servant engaged in a common em- ployment; there is no implied promise on the part of the master not to expose his servant to extraordinary risk. Griffiths v. Gidlow, 3 H. & N. 648; 27 L. J. Ex. 404: Riley v. Baxendale, 6 H. & N. 445; 30 L. J. Ex. 87; Rriestly v. Fowler. 3 M. & W. 1 ; Wigmore v. Jay, 5 Ex. 354; 19 L. J. Ex. 300; Wig- .11 Ex. 832; 25 L. J. Ex. 188; Waller v. South Eastern Rv. Co. 32 L. J. Ex. 205, [2 H. & C. 102:] Hutchinson v. York &c. Rv. Co. *5 Ex. 353; 19 L. J. Ex. 296; Potter v. Faulkner, 31 L. J. Q. B. 30; [1 B. & S. 800, 806;] Abraham v. Reynolds, 5 H. & X. 143; Lovegrove r. London, Brighton & South Coast Ry. Co.; Gallagher v. Piper, 33 L. J. C. P. 329: [16 ('. B. X. S. 669; Lawler v. Androscoggin R. R. Co. 62 Maine, 463; Tun- ney v. .Midland Rv. Co. L. R. 1 C. P. 291 : Morgan r. Vale of Neath Ry. Co. 5 B. & S. 736; S. C. L. R. 1 Q. B. 149; Beaulieu v. Portland Co. 48 Maine, 291; Farwell v. Boston & Worcester R. R. Corp. 4 Met. 49: Gillshannon v. Stony Brook R. R. 10 Cush. 228: Have- «. Western R. R. 3 Cush. 270; Albro I?. Agawam Canal Co. 6 Cush. 75; King v. Boston & Worcester R. R. 9 Cush. 112; Seaver v. Boston & Maine R. R. 14 Gray, 4 66; Couch v. Steel, 3 El. & Bl. 402; Brown v. Maxwell, 6 Hill (X. Y.),594; Carle v. Bangor & Piscataquis (anal & R. R. Co. 43 Maine, 269; Cook v. Parham, 24 Ala. 21; Fort v. Union Pacific R. R. Co. 2 Dillon, 259. 268-270, and cases in note adftnem; S. C. 17 Wallace, 553; 2 Dillon, 64; Haskins v. New York &c. R. R. Co. 65 Barb. 129; Honnor v. Illinois Central R. R. Co. 15 111. 550; Ryan v. Cumberland Valley R. R. Co. 23 Penn. St. 384; Shields r. Yonge, 15 Geo. 349; Coon v. Svracuse & Utica R. R. Co. 6 Barb. 231; Boldt v. New York Central K. R. Co. 4 Smith (X. TV), 432; Murphy '■• Smith, 19 C. B. X. S. 361'; Degg v. Midland Rv. Co. 1 H. & N. 773; Vose c. Lanca- shire & Yorkshire Ry. Co. 2 II. & N. 728'; Searle v. Lindsay, 11 C. B. X. S. 429.] And the common employment embraces all ca«es where the risk of injury from the negligence of the one is so much a natural and necessary con- sequence of the employment which the other accepts, thai it must be included in the risks which are to be considered in his wages. Morgan t>. Yale of Neath Ry. Co. 33 L. J. Q. B. 260; 35 L. J. Q. B. 23; [5 B. & S. 736; S. C. L. R. l Q. B. l 19; Tunney v. The Midland Uy. Co. L. R. 1 C. P. 291. Che nil.- ol law is the same, though the servant, or employee causing the in- jury, is engaged in a different department of the same general service, or ex- higher grade of authority, and the plaint ill' was acting under his direction at the time of the injury. Lawler v. Androscoggin R. R. Co. 62 Main Gallagher v. Piper," n; C. B. X. S. 669; Feltham '■. England, I- ■•' '.'■ B. .;::; Gillshannon i>. The Stony Brook R. R. Corp. 10'Cush. Cumberland Coal & Iron Co. v. Scally, 27 Md. 589; Hall v. Johnson, 3 H. Caldwell v. Brown, .".:; Penn". St. 453; Carle r. Bangor & Pis- cataquis Cnial & R. ];. (,,. 43 Maine, 269; Farwell r. Boston & Worcester R R. Corp. I Met. 19; Hayes <\ Western K. R. Corp. 3 Cush. 270; King B ton .v Worcester 1!. R. Corp. 9 Cush. 112; Hard v. Vermont &c. R. ,: ( 32 \'i. 17.;: Albro v. Agawam Canal Co. 6 Cush. 75; Wilson r. Merry, 1.. R. i II. L. Sc. 326; Sherman v. Rochester &c. R. R. 17 N. Y. 153. See, further, as to who are to be deemed fellow servants within the DECLARATIONS IN TOUT. NEGLIG1 Obs. rule, Warburton t«. Great Western Ey. Co. L. E. 2 ] ah Eastern Ry. Co. 2 II. & C. 102; Coon p. Syracuse &c. R. R. Co. i - 49-2; Rohback v. Pacific R. R. Co. 13 Missou. 187; Wright p. N< ■ STork &c. R. R Co. 25 X. V. 562; Shanck v. Northern &c. R. R. Co. 25 Md. L< Conlin U.Charleston, L5 Rich. (S. Car.) L. 201; Morgan v. Va itb Ey.Co. 5 B. & S. 570, 736; S. ('. L. R. l Q. B. I I And although the servant, to exempt the master, musl be a pi compe- tent skill: Tarrant p. Webb, 18 C. B. 787; 25 I.. J. C. P. 261; [Lawler v. Androscoggin R. R. Co. 62 Maine, 463, 466; Gilman p. Eastern R. R. I orp. 10 Allen, 233, 238, and capes cited; Warner p. Erie R. R. Co. 39 N. Y. It Wilson r. Merry, L. R. 1 II. L. Sc. 826; Potter v. Faulkner, I B. & S. 806; Searle v. Lindsay, ll C. B. X. S. 129; Illinois Central R. R. Co. v. Jewell, 46 111. 99;] yet where the accident happened through the alleged inadequacy of the number of servant-', the master was not held responsible. Skipp v. Eastern Counties Ry. Co. 9 Ex. 223; 23 L.J. Ex. 23. But the master would liable if lie knew that the servant habitually violated his duty. Seniorp. Ward. 281... I. Q. B. L39; [1 El. & El. 385; Gilman v. Eastern R. E. Corp. I" Allen. 233; C. & A. R. R. Co. p. Sullivan. 63 111. 293. Where the servant undertakes to hold the master for his negligence in not procuring suitable servants, the charge of this negligence should be duly alleged in an appropriate count. Law- let- p. Androscoggin R. R. Co. 62 Maine, 163; Harper p. End. & Si. Louis K. R. Co. 47 Missou. 567; Moss v. Pacific R. R. 49 Missou. 167.] And where machinery is required to be fenced, and the protection is defective, the owner. having notice of the defect, is responsible to one who entered his service when the Fencing was in good order, and continues in the service, Eecting the defects to be repaired. Holmes p. Clarke. 80 L. J. Ex. L85; 86 .. J. Ex. 356; [fi II. & N. 349; S. C. 7 II. & X. 937. The principle is well established, that an employer is under an implied contracl with those whom he employs, to adopt and 'maintain suitable tackle, machinery, instrumei means, and appliances with which to carry on the business in which he requi their services; and this includes an obligation to provide a suitable place in which the servant . being himself in the exercise of due care, ran perform Ins dutv safely, or at least without exposure to dangers that do not come within the obvious scope of his employment; and if from any negligence in to these requirements damages arise to the servant, the master or employer is responsible. Coombs v. New Bedford Cordage Co. 102 Mass. 572,584; Ford v. Fitchburg E. E. Co. 11" Mass. 240; Northcoate p. Bachelder, 111 Mass. 322; Huddleston v. Lowell .Machine Shop. 106 Mass. 282; Paterson v. Wallace, l Mac,. 748; Cavzer p. Taylor. 10 Gray, 274; Seaver p. Boston & Maine E. E. 14 Gray, 466; Snow p. Housatonic R. R. Allen, ill; Gilman p. Eastern E. E. Co. 10 Allen, 233; S. C. IS Allen, 133; Clarke p. Holmes, 7 II. & X. 937; O'Byrne v. Burn, L6 Cas. inCt.o S 1025; Indermaur p. Dames, L. R. 2 C. P. 311; Grizzle v. Frost, 3 F. & Fin. 622; Hackettv. Middlesex Manuf. Co. 101 Mass. 101, L04; Felch p. All 98Mass. 572, 574; Bartonsville Coal Co. o Reid, 3 Macq. 266; Mellors p. Shaw, l 15. & S. 437; Ormond p. Holland. 1 EL, Bl. & El. 102; Buzzell Laconia Manuf. Co. 48 Maine, 113; Lawler ». Androscoggin R R. I Maine, 463; Indianapolis 11. R. Co. p. Love, L0 Ind. 554; Warner p. Erie R E Co 39 X. Y. 168; Wrighl p. New York &c. R. R. Co. 25 N. I. Kee°an«. Western E. E. Co. t Selden, 175; Hayden p. Smithfield Manuf. Co. 29 Conn. 548; Fifield v. Northern 1!. R. 42 N. H. 225; Mad River & ErieE. E. Co. v. Barber, 5 Ohio (X. S.), 541; Sizer p. Syracuse, Bingh. & N Y E R. 7 Lansing 67; Anderson p. New Jersey &c. Co. i Rob. (X. ^ | 611- Shanck p. Northern &c. R.E Co. 25 Md. 162; Salters p. D Hudson (anal Co. 5 X. Y. Sup. Ct. 559, 560; Laning p. New R Co. 49 N. Y. 521; 2 Chitty Contf. (llth Am. ed.) - Hofnad,. p. New York C. & EL R. R. K. Co. 50 X. Y. 610; Ardesco Oil Co. v Gibson, 68 Penn. St. 146; Johnson p. Bruner, 61 Penn. St. 58; I Hamilton Manuf. Co. it Allen. 193; Harrison p. Central R. R. 2 Vi 293; McGlynn p. Brodie, 81 Cal. 876; Gibson p. Pacific R. R. Co I 163- Chicago & N. W. R. R. p. Swett, 45 111. 197; Chicago* N. W. R R Co v. Jack°son, 55 111. 192; O'Donnell p. Allegany Valley R. R. 59 I St. 239; Brown p. Accrinton Cotton Co. 3 II. & 0. 511. But if the servant, 570 DECLARATIONS IN TORT. NEGLIGENCE. Obs. well knowing the default of his employer, as in providing defective machinery, &c. voluntarily enters upon, or continues in his employment, he assumes the risk, and, if injured, lias no remedy against his employer. Buzzell v. Laconia Manuf. i o. 18 .Main.-, 113; Hayden v. Smithfield Manuf. Co. 29 Conn. 548; Dynen v. Leach, 26 L. J. 221; Devitt v. Pacific R. R. Co. (Missouri) 12 Am. I.' . .. R . N. S. 104; Chicago &c. R. R. Co. v. Swett, 45 111. 197. See Snow v. Housatonic R. 11. Co. 8 Allen, 441. The obligation of the employer, towards those in his employment, does not extend beyond the use of ordinary re and diligence. King v. Boston & Worcester R. R. Co. 9 Cush. 112; Ryan v. Cumberland Valley R. R. Co. 23 Penn. St. 384; Sherman v. R. R. Co. 15 Barb. 574; Walker v. Boiling, 22 Ala. 294. As to the liability of one servant, to another in the same employment, for negligence, see Albro v. Jaquith, 4 Gray, 99. In a suit for damages to an employee or servant, arising from the neglect of the employer, in the use of defective machinery or tools, the declaration should allege that the defect was unknown to the plaintiff, and was known to the defendant, and that it arose from want of proper care and diligence on the part of the defendant. Buzzell v. Laconia Manuf. Co. 48 Maine, 113; Noyes v. Smith, 28 Vt. 59; Williams v. Clough, 3 H. & X. 258. But in Watling v. Oastler, L. R. 6 Ex. 73, it was held that the servant's ignorance of the danger or defects need not be alleged in terms, but that the averment that the injury was caused " by reason of the negli- gence and default of the defendants " must be taken as equivalent to an aver- ment in the old form that it was by their mere negligence and default. If it were not so in fact, that will be matter of defence under the general issue. Mellors v. Shaw, 1 B. & S. 437. To the same effect is May v. Princeton, 11 Met. 442; Chapman C. J. in Steele v. Burkhardt, 104 Mass. 59, 62, and cases cited.] Contributory negligence prevents the plaintiff from recovering, even though the defendant is guilty of negligence. " The rule of law is, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of the de- fendant's negligence, he is entitled to recover. If bv ordinary care he might have avoided them, he is the author of his own wrong." Per Parke B. Bridge v. The Grand Junction Ry. Co. 3 M. & W. 244: Davies v. Mann, 10 M. & W. 546; 12 L. J. Ex. 10. See Butterfield v. Forrester, 11 East, 60; Holden v. Liverpool Gas Co. 3 C. B. 1; 15 L. J. C P. 301; Clayards v. Dethick, 12 Q. B. 439. If the damage is not occasioned entirely by the neg- ligence or improper conduct of the defendant, the plaintiff is still entitled to recover if he have not so far contributed to the misfortune by his own neg- ligence or want of proper care, that but for such negligence the misfortune could not have happened, and if the defendant could by the exercise of ordi- nary care and caution have avoided the consequences of the neglect or care- lessness of the plaintiff. Tuff v. Warman, 5 C. B. N. S. 573; 27 L. J. C. P. 322; Thompson v. The North Eastern Ry. Co. 30 L. J. Q. B. 67; 31 L. J. <>. B. 194; Senior v. Ward, 28 L. J. Q. B. 139; Martin v. Great Northern Ry. Co. l»i C. B. 192; Wise v. Great Western Ry. Co. 1 H. & N. 63; 25 L. J. Ex. 261; [State v. Manchester & Lawrence R. R. Co. 52 N. H. 528, 554- • r ..-,7 : Dowell v. Steam Navigation Co. 5 El. & Bl. 206; Scott v. Dublin & Wicklow Ry. Co. 11 Irish Com. Law, 377; Spofford v. Harlow, 3 Allen, 176; Isbell v. R. R. Co. 27 Conn. 393; Kerwhacker v. Cleveland &c. R. R. Co. 3 Ohio St. 172; Steele v. Burkhardt, 104 Mass. 59; Wright v. Brown, 4 Ind. 95; R. R. Co. v. Adams, 26 Ind. 76; Louisville &c. R. R. Co. v. Collins. 2 D .all. 116; Morrisseyv. Wiggins Ferry Co. 43 Missou. 380; Brown v. R. R. Co. 50 Missou. 161; Needham v. San Francisco & S. J. R. R. 37 Cal. 409; Flynn v. San Francisco & S. J. R. R. 40 Cal. 14; Fitch v. Pacific R. R. 45 Missou. 322; R. R. Co. v. State, 36 Md. 366; Foster v. Holly, 38 Ala. N. S. 76 ; R. R. Co. v. Still, 19 111. 499; Trow v. Vermont Central R. R. Co. 24 \ i. 487; Lovett v. Salem & South Danvers R. R. Co. 9 Allen. . r >57; Beers o. Housatonic R. R. Co. 19 Conn. 56*6 ; Johnson v. Hudson River R. R. Co. 20 N. .'>ndon, Brighton & South Coast Ry. Co. v. Walton, It Law Times (N. ). 253; Greenland v. Chaplin, 5 Ex. 248; Austin v. New Jersey Steamboat Co. 43 N. Y. 75; Aycock v. Wilmington &c. R. R. 6 Jones (Law), 231 ; Bal- com t'. Dubuque &c.R.R. Co. 21 Iowa, 102; Macon &c. R. R. Co. v. Davis, 18 DECLARATIONS IN TORT. NEGLIGENCE. ."-71 Obs. Geo. 679; East Tenn. &c. R. R. Co. v. St. John, 5 Sneed, 524; QlinoU Cen- tral R. R. v. Middlesworth, 46 Ql. 494; Robinson v. New Yoi R. I: Co. 65 Barb. 146; Norris v. Litchfield, 85 V II. 271, 277, 278; Kennard v. Bur- ton, 25 Maine, 89 ; Daniels©. Gn Mich. 82; Plati w. Ferry R. R. I 4 N. Y. Sup. Ct. 406. In Murphy v. Deane, 101 Mass. 155, Mr. .1 Wells criticises the above proposition, and su that itdo ufficiently impose upon the plaintiff the burden of proving the necessary elements of his case: " Wethink," the learned judge observes, •• it is manifest thai the rule thus laid down in Tuff v. Warman, is not the correct rule of lawwhich gov- erns ordinary cases of injury by negligence; but whenever there i i ace on the part of the plaintiff, contributing direct ly, or as a proximate cause, to the occurrence from which the injury arises, such negligence will prevent the plaintiff from recovery; and the burden is always upon the plaintiff to estab- lish either that he himself was in the exer< ise of due care, or that the injury is in no degree attributable to any want of proper care on his part. Trow v. Vermont Central R. 11. Co. 24 Vt. 187; Birge v. Gardiner, L9 Conn. 507; Adams v. Carlisle, 21 Piek. 146; Parker r . Adams, 12 Met. U5; Lucas v. Taunton &c. R. R. 6 Gray, 64; Wilson v. Charlestown, 8 Allen. 188; Gay- norw. Old Colony & Newport Ry. Co. 100 Mass. 208, 211; Merrill v. Eamp- den, 26 .Maine, 234; Dickey o. Maine Telegraph Co. 13 Maine, 192; Park v. O'Brien, 23 Conn. 339; Dyer v. Talcott, 16 111. 300; Walter v. Berron, 22 Texas, 55 ; Welling v. Judge, 40 Barb. 193; Owings v. Jones, 9 Md. 108; Northern Central R. R. Co. v. State, 31 Md. 357; Milwaukee &c. R. It. Co. v. Hunter, 11 Wise. 160; Evansville &c. R. I!. Co. v. Hiatt, 17 Ind. 102; Gahagan v. Boston & Lowell R. It. Co. 1 Allen, 190; Gilman v. Deerfield, 15 Gray, 577; Gavett v. Manchester & Lawrence R. It. Co. 16 Gray, 501 ; Michigan Central R. R. v. Coleman, 28 Mich. 440, 447, and c ited; Kelly v. Hendrie, 26 Mich. 255; Mitchell v. New Yo I , R. It. Co. 5 N. Y. Sup. Ct. 122, 124, and cases cited; S. ('. 9 \. Y. Sup. Ct. 535, and cases cited ; Davis v. New York Central &c. R. I! Co. 17 X. V. : Pennsylvania R. R. Co. v. Ackennan, 71 Penn. St. 265. In som s, it is the rule that the plaintiff's negligence is matter of defence, the burden of pleading and proving which rests upon the defendant, although if the plain- tiff's evidence discloses the fact he cannot recover. See Beatty v. Gilm 16 Penn. St. 463 ; Pennsylvania R. R. Co. v. McTighe, 16 Penn. St. 816; Penn. Canal Co. v. Bently, 66 Penn. St. 30 : Durant i\ Palmer,5 I> itch. 544; Johnson v. Hudson River It. R. Co. 5 Duer, 21. Such was the rule adopted in the supreme court of the United States in It. It. Co. v. Gladmon, 15 Wal- lace, 401. It is not necessary to allege that the injured person did not con- tribute to the accident. Watling v. Oastler, L. It. 6 Ex. 78,88; May v. Princeton, 11 Met. 442; post, 575, note (e).] So also a passenger in a public conveyance, who is injured by the negligent management of another conveyance, cannot maintain an action against the owner of the latter, if the driver of the former, by the exercise of proper care and skill, might have avoided the accident which caused the injury. Thoro- good v. Bryan, 8 C. B. 131 ; 18 L. J. C. P. 336; Rigby v. lie win.':) Ex. 240 ; [Peck v. Neal, 3 McLean, 22, 26; Lockhart v. Lichtenthaler, 16 Penn. 151.] And contributory negligence in an infant has tl effect as in the case of an adult, Abbott v. Macfie, 2 B. & C. 744; 88 L. J. Ex. 177. In that case the defendants placed a shutter of their cellar against the wall of a public street. The dress of the plaintiff, who was jumping off the shutter, caught the corner of it, when it tell and injured the p . and it was held, upon the above rule of law, that the plaintiff could nol recover; and r was further held, that the defendant's liability for injury to another child depended upon -whether the children were playing together, so as to be joint actors: and to the like effect is, Mangan v. Atherton, 85 I.. J. Ex. 161; l L. R. Ex. . and seeWaitew. The North Eastern Ry. Co. EL, Bl. & El. 718; '-'7 I.. J. Q. B. 417; 28 L. J. Q. B.^258. [The supreme curt of the Unite IS .in R. R. Co. (•■■ Gladmon. 15 Wallace, 101, 108, maintained that the rule of law in regard to the negligence of an adult, and the rule in regard to that of an infant of tender years, are <|uite different. Of an infant of tender ye discretion is required, and the degree depends upon his age and knowli 572 DECLARATIONS IN TORT. NEGLIGENCE. Obs. Of a child of three years of age less caution would be required than of one of seven, and of a child of seven less than of one of twelve or fifteen. The caution required is according to the maturity and capacity of the child, and tlil termined in each case by the circumstances of that case. This rule has been supported by <_n-eat force of reason and authority. The decis- ions are not, however, entirely harmonious. See Robinson v. Cone, 22 Vt. 213; Daley v. Norwich &c. R. R. Co. 26 Conn. 591 : North Penn. R. R. Co. v. Mahoney, 57 Penn. St. 187; Smith », O'Connor, 48 Penn. St. 218; Belle- fontaine &c. R. R. Co. v. Snyder, 18 Ohio St. 399 ; Daniels v. Clegg, 28 Mich. 32: Birge t'. Gardiner, 19 Conn. 507; Kerr v. Forgue, 54 111. 482; Karr v. Parks. 40 Cal. 188; Sheridan v. Brooklyn &c. R. R. Co. 36 X. Y. 39; Mangam v. Brooklyn &c. R. R. Co. 36 Barb. 230; Glassey v. Hestonville &c. K. B. Co. 57 Penn. St. 172; Pittsburg A. & M. Pass. By. Co. v. Cald- well. 74 Penn. St. 421 : Wyatt v. Citizen's Ry. Co. 55 Missou. 485; Cressey V. Hestonville &c. Ry. Co. 75 Penn. St. 83, 86, and cases cited : Philadel- phia &c. R. It. Co. v. Long, 75 Penn. St. 259; Philadelphia &c. Ry. Co. v. Hassard, 75 Penn. St. 367: Chicago v. Starr, 42 111. 174; Chicago v. Mayor, 18 111. 349; Bolaml v. Missouri R. R. Co. 36 Missou. 484: Ilavcroft v. Lake Shore & Mich. Southern Ry. Co. 5 N. Y. Sup. Ct. 49; S. C. 9 N. Y. Sup. Ct. 489; McMahon v. North Central Ry. Co. 39 Md. 438; Lynch v. Smith. 104 Mass. 52 ; Elkins v. Boston & Albany R. R. 115 Mass. 190 ; Dowd v. Chico- pee, 116 Mass. 93; Mulligan v. Curtis, 100 Mass. 512; Munn v. Reed, 4 Allen, 431; Chicago, Burl. & Quincy R. R. Co. v. Dewev. 26 111. 255; Leslie v. Lewiston, 62 Maine, 468, 472, 473: Wright w.Malden & Melrose R. R. Co. 4 Allen, 283; Callahan v. Bean, 9 Allen, 401; Lovett v. Salem & South Dan- s R. R. Co. 9 Allen. 557; Holly v. Boston Gas Light Co. 8 Gray, 123; Hartfield v. Roper, 21 Wend. 615; 'Lafayette &c. R. R. Co. v. Hoffman, 28 Ind. 287. As to concurring causes : where the injury is the result of two con- curring causes, the party responsible for one of these causes is not exempt from liability because the person who is responsible for the other cause, unless he be the plaintiff, may be equally culpable, or because the other cause was a mere accident. Lake v. Milliken, 62 Maine, 240; Chapman v. New Haven R. R. Co. 19 N. Y. 341; Ricker v. Freeman, 50 N. H. 420: Webster v. Hud- son River R. R. Co. 38 N. Y. 161; Brehm v. Great Western R. R. Co. 34 Barb. 256; Paulmier v. Erie R. R. Co. 34 N.J. (Law) 151 : Lockhart v. Lich- tenthaler, 46 Penn. St. 151; Harrison v. Great Northern R. R. Co. 3 H. & C. 231.] The executor cannot recover, where the deceased could not, by reason of contributory negligence, have recovered. Senior v. Ward, 28 L. J. Q. B. 139; [1 El. & El. 385.] Trustees of docks for public purposes, receiving tolls, but not receiving any personal benefit, are liable, in their corporate capacity for damages caused by the default of their servants to the same extent as private individuals levying tolls for their own profit. The Mersey Docks & Harbour Board v. Gibbs; Same v. Penhallow, 35 L.J. Ex. 225;' L. R. 1 H. L. 93; 7 H. & N. 329; 30 L. J. Ex. 329; Coe v. Wise, L. R. 1 Q. B. 711: [ante, 494, 495; Lyme Regis v. Benley, 2 CI. & Fin. (Am. ed.) 331, note (1): Duncan v. Findlater, C CI. k Fin. (Am. ed.) 894, note (1). See Hickok v. Plattsburgh, 16 N. Y. 161; Conrad v. Ithaca. 16 N. Y. 158; Hover v. Barkhoof, 44 N. Y. 113.] So, also, if the works are for trading purposes. Scott ?-. Mayor c\c of Manches- ter, 2 H. & X. 204; 26 L. J. Ex. 406. So statutable commissioners are liable for injuries arising from the execution of works which they order, and which ier precaution against danger. Ruck v. Williams, 3 II. 27 L J. Ex. 357. [See Wendell v. Troy, 4 N. Y. Court of App. 63.] But it would appear the damage muel flow from the breach of the particular duty. Brownlow v. The Metropolitan Board of Works, 33 L. •'• C. P. :;:;: [S. C. 13 C. B. N. S. 768;] Walker v. Goe, 4 II. & X. 350; -" i--'- Ex. 184. SeeOrbyv. The Ryde Commissioners, 33 L. J Q. B. icy are liable if they personally interfere in the carrying out of the I'll'- Company &e. of "the Southampton & Itchin Floating Bridge v. T1 ' '■ Board of Health of Southampton, 8 El. & Bl. 801 ; 28 L. J. Q. B. 4 1 . 1 "ml Sub-contractors. — A person who employs another to do a law- ful act. i presumed, in the absence of evidence to the contrary, to employ DECLARATIONS IN TORT. NEGLIGENCE. Obs. him to do it in a lawful and reasonable manner, ami therefore, unless the parties stand in the position of master and servant, the employer is nol re- sponsible for damages occasioned by the negligent mode in which tb done. Butler v. Hunter, 81 L.J. Ex. 214; [7 II. & X. 826;] Readie i;. Lon- don & North Western Ry. Co. 4 Ex.244; [2 Chitty Contf (11th Am. ed.) 861 et sci/. and notes and cases cited; Wright v. Hoi brook, 52 X. II. L20, in which Sargent J. discusses this poinl at length; Milliard v. Richardson, '■'< Gray, 349; Cuff v. Newark & X. V. R. R. Co. 6 Vroom, 17; Overtone Freeman, 11 C. B. 867; Gayford u.Nicholls, 9 Ex. 702, 707; Peachey v. Row- land, 13 C. B. 182; Eaton v. European & X. A. R. R. Co. 59 Maine, 520; Brackett v. Lubke, 4 Allen, 138, 140; Pickard v. Smith, 10 ('. B. X. S. 170, 480; Kellogg v. Payne, 21 Iowa, 57.">; Chicago v. Robbins, 2 Black, H8; Al- len v. Willard, 57 Penn. St. 847; Schwartz v. Gilmore, 15 111. 155; Sadler v. Henlock, 4 El. & Bl. 570, 578; Blake v. Thirst, 2 II. & ('. 20.] Bui if the thing contracted to be done of itself, and without negligence on the pari of the contractor, causes the injury, the person for whom it is done is responsi- ble. See Hole v. Sittingbourne &c. Ry. Co. 6 II. & X. 188; 30 L. J. Ex. 81. And if the thing to be done is an unlawful act, the employer is liable. Ellis v. Sheffield Gas Company, 2 El. & Bl. 767; 23 L.J. Q. B. 42; [Creed v. Ilart- mann, 29 N. Y. 591; Cuff v. Newark & New York K. R. Co. 6 Vroom, 17.] See, as to statutable duty, Grey v. Fallen, 34 L. J. Q. B. 265; [5 B.& S. '.< , As to warehousemen, see Murphy v. Caralli, 34 L. J. Ex. 14; [8 II. & C. 461.] As to liability of vestry, Holliday v. St. Leonards, 11 C. B. X. S. 192; 30 L. J. C. P. 361. [As to liability of contractor after execution of bis work, see Hyams v. Webster, L. R. 2 Q. B. 264.] Volunteers. — A master is not liable for injury to a person volunteering assist- ance to his servant; Degg v. The Midland Ry. Co. 1 II. & X. 77:;; 26 L. J. Ex. 171 ; even if he is invited by the servant to assist him, for the Strang by volunteering his assistance, cannot impose upon the master a greater lia- bility than that in which he stands towards his own servant. Totter -•. Faulk- ner, 31 L. J. Q. B. 30; [1 B. & S. 800.] See Abraham v. Reynolds, 5 II. \ N. 143; Blackemore v. Bristol & Exeter Ry. Co. 8 El. & Bl. 1035. [But wb one volunteers to assist another in a piece of work, the I itter being present, they will stand in the relation of master and servant, and the Eormer will be liable for a trespass committed by the latter, through negligence or wanl of information. Hill v. Morey, 26 Vt. 178.] " When an excavation is made adjoining to a public way, so that a person walk- ing on it might, by making a false step, or being affected by sudden giddi- ness, or, in the ease of a'horse or carriage, who might by sudden Btarting of ahorse be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences. But when the excavation is made at some distance from the way. and the person tailing i it would be a trespasser upon the defendant's land before he reached it, the case seems to be different." Hardcastle v. South Xbrkshire Ry. Co. i II. & N. 67; 28 L. J. Ex. 139-141, per Martin B.; [Howland V. Vincent. 10 Met. 371; Binks v. South Yorkshire R. R. Co. 3 B. & S. 244; Hadley v. Taylor, L. R, 1 C. P. 53; Vale v. Bliss, 50 Barb. 358; Corby v. Bill, 1 C. B. N. S. 556, 568, note ami eases; Stone v. Jackson, 16 C. B. 199.] In Ham- v. \\ ard, 9 C. B. 392; l!) L. J. C. P. 195, it was held that where an excavation is \ public nuisance, an individual injury arising from it is the subject-matter of an action. And see Hounsell v. Smyth, 7 C. B.N.S. 781; 29 L.J.C. P. 208; [ante, 517.] But where land with an obstruction on it, or immediately ad- joining it, is dedicate. 1 to the public as a way, the dedication is Bubiect to the inconvenience or risk arising from the obstruction. Cornwall v. Metro- politan Commissioners of Sewers, 10 Ex. 771: Fisher v. Prowse, 31 L. J. Q. B. 212; [2 B. & S. 770;] Robbins v. Jones, 88 L. J. C. P. l ; [15 C. B. V 8. 221.] If a person uses the land of another by his permission, the owner cannot be made liable for an injury arising to the person so using it. unless hi ime wrongful act, such as digging a trench, or making any misrepresentation which mi. 327: South. Stanley, 1 H. & X. 247: 25 L. J. Ex. 339; Bolch v. Smith. 7 II. & X. 735; 31 L. J. Ex. 201; Gautret r. Egerton, 36 L. J. C. P. 191; [L. R. 2 C. P. ampbell v. Portland Sugar Co. 62 Maine 552; Carlton v. Fran- conia Iron Co. 09 Mass. 216; BinksV South Yorkshire By. Co. 3 B. & S. 244:] and see Blakemore v. Bristol & Exeter By. Co. 8 El. Ox Bl. Iu35; M'Carthy r. Younsr. 30 L. J. Ex. 227 : 6 H. & X.329: Chapman v. Roth well, El.. Bl. .x E!. 168 ; 27 L. J. Q. B. 315; where the plaintiff was lawfully re- turning through the regular passage from the defendant's brewery, and fell into a cellar improperly guarded, it was held that the defendant was liable. Where the defendant, by permission of the owner, plaeed an obstruction in a private way, which was not properly lighted by night, he was held liable for injury to the plaintiff being lawfully there. Corby v. Hill. 4 C. B. X. S. 556: 27 L. J. C. P. 318. And if the plaintiff resorts to a building in the oecupa- tion of the defendant, upon the defendant's invitation, express or implied. the defendant is bound to exercise rea?onable care to prevent damage hap- pening from unusual danger, of which he has or ought to have knowlex El. 168. Where the defendant left a shoot in his sugar refinery unprotected, and the plaintiff bein? lawfully there on business fell down the shoot, the defendant was held liable. Indermaur v. Dames, L. R. 1 C. P. 274: 2 lb. 311. But where the plaintiff fell down a staircase on defendant's premises, by reason of his moving about there in the dark, he was held not to be entitled to re- cover, although he was lawfully there on business. Wilkinson v. Fairrie. 1 H. & C. 633. The occupier of premises is not liable to servants in his em- ployment who take the risk of the dangerous state of the premises; Seymour v. Maddox. 16 Q. B. 326: nor, it is said, is he liable to mere visitors. South- cote v. Stanley, 1 H. & X. 247.] As to the duty to fence mines, see the subject fully discussed and all the cases collected. "Groucott v. Williams. 32 L. J. Q. B. 235. The declaration must show facts on which a duty is founded, which it is incum- bent on the defendant to perform. Gautret v. Egerton, 36 L. J. C. P. 191: [L. R. 2 C. P. 371; Collis v. Selden, L. R. 3 C. P. 495.] 1. Against the Owner of a Carriage for negligent driving, (a) For that the defendant ["by his servant" (5)] so negligently drove his horse (a) See forms, Williams v. Holland, 10 Qui facit per ahum facit per se. In some 1 12 ; C C. & P. 501 ; Croft v. Alison, 4 cases it would be expedient to allege that the B. & Aid. 590 ; Moreton v. Hardern, 4 B. & defendant was possessed, &e. which was un- I 223 ; [Davits v. Mann, 10 M. & W. 546 ;] der the control of his servant. &c. as in illing a horse, Patten v. Rea, [2 C. B. Mitchell v. Crassweller, 22 L. J. C. P. 100, :] 26 L. .1. ( 1'. 235; and see a in which case, without a special travera form by a master lor an injury to his ser- the service, it would be admitted. [Count Martinez v. Gerber, 3 Scott X. R. 86 ; against the hirer of a driver and hoi>e< for G. 88. S roft v. Alison, 4 an injurv caused by the negligence of the B. & If the plaintiff had let the driver. Laugher v. Pointer. 5 B. £ C. 547 : carri unexpired term, and was not Quarman v. Burnett, 6 M. £ W. 499 : [where entitl .but was owner in re- the hirer was held not to be liable;] he declaration should be framed M'Laughlin v. Pryor, 4 M. & G. 48 ; [where accordingly. - a, " Reversion." the hirer was held"to have made himself liable (k) But under an allegation that defendant by personal interference.] Count against an had t: -uilty of neglect, proof omnibus proprietor for injuries caused by that his servant was the driver, &c. would be the negligence of his driver. Cotton >"• admissible. Brucher v. Fromont, 6 T. R. Wood, 8 C. B. N. S. 568 ; Limpus v. London .M.Man us v. Crickett, 1 East, 110; General Omnibus Co. 32 L. J. Ex. 189, 327 ; Wheatley v. Patrick, 2 M. & W. 650. Evi- 1 H. & C. 526. Against a master for an dence of this, Joyce v. Capel, 8 C. & P. 370 injury done by a servant in the course of the DECLARATIONS IX TOUT. NEGLIGENCE. and carriage, that the same struck against the carriage and horse of the plain- tiff, whereby (c) the plaintiff was burr and prevented from following his busi- ness, and incurred expense in endeavoring to be cured, and the carri horse (d) of the plaintiff were damaged, and he incurred expense in repairing the said carriage, and in curing the said horse, and was obliged to hire another carriage and horse. [State any special damage thai has arisen. ] [la. Negliqence of Railroad Corporation. And the plaintiff says the defendants are a corporation owning a railroad between A. and B. ; that plaintiff was a passenger on said railroad, ami by reason of the insufficiency of an axle of the car in which be was riding the plaintiff was hurt; that the defendants did not use due care in reference to said axle, but plaintiff did use due care, (e) (This form may be varied to adapt it to many cases, simply by changing the allegation as to the cause of the accident. The party is not restricted to one cause, if there are several concurrent causes.) lb. Negligence of Town respecting Highway. And the plaintiff says there is in the town of a public highway leading from to , which said defendants are bound to keep in repair ; that the same was negligently suffered by defendants to be out of repair, whereby the plaintiff travelling thereon and using due care (/) was hurt.] 2. For Injury to a Passenger. Ante, 492, Form 3. 3. By the Executor or Administrator of Deceased Passenger. Ante, 492, Form 4. [4. For negligent driving where the Damage occurred in endeavoring to avoid a Collision. That at the time of committing the grievances hereinafter mentioned the plaintiff was possessed of a carriage and horses, and was driving the same along a public highway, and the defendant then so negligently and violently drove a wagon and horses along the same highway, and so unskilfully and improperly conducted the said wagon and horses that the same would then necessarily and inevitably have been driven and forced against the said cur- work which he was employed to do. Scott another horse. Hagtaes v. Quentin, S C. & o. Mayor of Manchester," 1 II. & X. 59. P. 707. Count "asainst the owner of a public convey- (e) (As t<> tlii- allegation, Bee a ance for want of care in his servant in re- 571 ; May '■. Princeton, 11 Met, 442: •! moving the plaintiff from the conveyance for v. Andover, 10 Allen, It >. P.urk- misconduct. Sevmour v. Greenwood, 6 II. hardt, l"i !, and cases; Mellons & X. 359.] v. Shaw, 1 B. & S. 437 Smith v. Eastern (c) [See Watling v. Oastler, L. R. 6 Ex. Railroad, 85 N. II. 356.] "3, 76.] ( f) [See note (e) above; Carey v. Bath. 35 (d) Where a horsi was damaged, held that X. II. 530, 548 ; Clark v. Barrington, 41 X. H. the proper measure of damages was the keep 44; Tucket '•. Eenniker, 41 X. 11. at the farrier's, the amount of his bill, and Michigan Central R. R. Co. v. Colemai the difference in value of the horse at the Mich. 440. 447 : Indianapolis &c K. EL Co. end of the time when he was cured and at v. Rutherford, 29 Ind. 82 ; Cunningham n the time of the accident, but not the hire of Lynes-. 22 Wise, 245.] 576 DECLARATIONS IN TORT. NEGLIGENCE. riage and horses of the plaintiff and have damaged them, if the said carriage and horses of the plaintiff had then continued and remained upon the said highway as aforesaid ; wherefore the plaintiff, in a reasonable and necessary endeavor under the circumstances to avoid the said damage, reasonably and :ly and with proper and reasonable care and skill in that behalf guided and conducted his said carriage and horses to and off one side of the said high- way, and in so doing his said carriage and horses, without any negligence, un- skilfulness, or default of the plaintiff, but solely and immediately in consequence of the uegligence, violence, and improper conduct of the defendant as aforesaid, upsel and injured; whereby the plaintiff w T as put to expense in repairing aid carriage, and in curing his said horses, and was deprived of the use of aid carriage and horses for a long time, and was put to expense in hiring another carriage and other horses. For negligence in driving a coach, whereby the plaintiff, a passenger, was obliged to jump off to avoid danger, and was injured. Jones v. Boyce, 1 Starkie, 493. For an injury arising from the negligence of the defendant in leaving his horses unattended. Quarman v. Burnett, 6 M. & W. 499. For spurring a horse while passing close to the plaintiff on a highway, whereby the plaintiff was kicked by the horse. North v. Smith, 10 C. B. N. S. 572.] 5. Against a Railivay Company for negligently running a Train against the Plaintiff. (g~) That the defendants were possessed of a railway locomotive engine and train of carriages attached thereto, and were by their servants driving and conduct- ing the same upon a certain railway, and the plaintiff was lawfully crossing the said railway; and the defendants by their servants so negligently drove and conducted the said engine and train that thereby the same ran and were driven _ nst the plaintiff and severely injured him. (h) 6. Against a Railway Company for neligently maintaining and keep- ing a Crossing. Lunn v. London & North Western Ry. Co. 35 L. J. Q. B. 105; S. C. nom. Lunt v. London & North Western Ry. Co. L. R. 1 Q. B. 275 ; Stubley v. London & North Western Ry. Co. L. R. 1 Ex. 21 ; 35 L. J. Ex. 3; Stapley t;. London, Brighton, & South Coast Ry. Co. L. R. 1 Ex. 13; 35 L. J. Ex. 7 ; Skelton v. London & North Western Railway, 36 L. J. C. P. 249 ; [L. R. 2 C. I'. 631.] 7. For negligently keeping a Railivay Station in a Dangerous Con- dition. To v. London, Brighton, and South Coast Railway Company, 3 C. B. N. S. 146; 27 L.J. C. P. 39. (i) i>i) Form, Waite v. North Eastern Ry. man v. Eastern Counties Ry. Co. 29 L. J. 27 L -I Q. B. 117: [El., Bl. & El. 718.] Ex. 94 ; [4 H. & N. 781 ; Longmore v. Great (/') [See Smith ,,lony & Newport Western Ry. Co. 19 C. B. N. S. 183 ; Nich- B B. Co. 10 R. I. 22, 28.] olson p. Lancashire &c. Ry. Co. 3 H. & C. (t) See similar forms, Martin v. Great 534.] Northern Ry. Co. 24 L. J. C. P. 209 ; Corn- DECLARATIONS IN TORT. NEGLIGENCE. 577 [7a. For negligently alloiving a Dog to be on the Station, which bit Plaintiff. Smith v. Great Eastern Ry. Co. L. R. 2 C. P. 4. lb. For negligently providing a Defective Carriage. Readhead v. Midland Ry. Co. 3G L. J. Q. B. 181. 7c\ For negligence in not keeping the Line in a Proper State for the Traffic. Blake v. Great Western Ry. Co. 7 H. & N. 987. Id. For not providing Proper Means for alighting from the Train. Foy v. London & Brighton Ry. Co. 18 C. B. N. S. 225. 7e. For not providing Proper Means of Departure from the Train. Nicholson v. Lancashire &c. Ry. Co. 3 II. & C. 534. If. For negligently keeping an Obstruction on the Platform of a Sta- tion, which the Plaintiff fell over. Cornman v. Eastern Counties Ry. Co. 4 II. & N. 781.] 8. Against the Owner of a House for placing Gravel on a Road, by which the Plaintiff in driving along the Road was injured. (&) Burgess v. Gray, 1 C. B. 578. (k) See form, &e. Burgess v. Grav, 1 C. S. C. 106 Mass. 194.] There seems to be a B. 578; and another similar form," Gold- difference in the liability of the possessors thorpe v. Hardman, 13 M. & W. 377; 2 D. & of .fired property, and that of the owners of L. 442; the facts of the former case were, goods, in respect of their being answerable that the defendant employed a third person for the acts "I their contractors or workmen. to make a drain for his house, and the work- Per Parke I'.. Quarman o. Burnett, G M. & men of that third person placed the gravel W. 499; post, Obs. Bee, also, Randleson v. on the road ; hut inasmuch as the defendant Murray, 8 Ad. ,v E. 209, wherethe defendant, personally superintended the work, it was a warehouseman, was held liable for the fall held that'he was responsible ; though, semble, of a barrel, which a master porter, whom he would have been liable without any such he had engaged to hoist it to his warehouse, superintendence. Bush v. Steinman, l B. & occasioned by his negligence : and P. 404; and Master v. Temuerley, 4 Q. B. B. 593, note (a), and 1 C. B. 585, note (<0. 298, 5B.&C.560. Form against A surveyor. The trustees under a public road act are not Davis v. Curling, 15 L. J. Q. B. 5f>. As to responsible for an injury occasioned by the the liability of the occupiers of houses for negligence of the men employed in making accidents of this kind, see in general, Com. or repairing the road. Duncan v. Find- Dig. Act. Case; Burn's J. tit. " Nuisance." later, 6 CL & Fin. B94: [anU . 494, 495, IThe defendant owned a building with a roof See, also, Bollidaj -. St. Leonards, n I so constructed that snow and ice collected N. S. 192; SO 1.. J. < \ 1'. 361 : Harris v. on it from natural causes were liable to fall Baker, 4 M. a S. 2, ; 1 ( Int. PL Index, into the adjoining highway. He let the " Agents " and " Trustees." Where a tenant, whole building to a tenant who covenanted on quitting a honse, gave notice to a gas com- to make all repairs, external and internal, pany that he should require no i A fall of snow from the roof of this building the company neglected to turn off the injured the plaintiff while travelling on the which exploded (after the tenant had quit- highway witn due care, and it was held that ted), in consequence of the interior the defendant was not liable. Leonard v. having been wrongfully removed by Bome Storer, 115 Mass. 86; Kirby r. Boylston, one. it was held the company was n Market Association, 14 Gray. 249. See sponsible to the owner of the house. Holden Shipley v. Fifty Associates, 101 Mass. 251 ; p. Liverpool New Gas Co. 15 L. J. G P.SOl. vou n. 37 578 DECLARATIONS IN TORT. NEGLIGENCE. 9. Against a Public Company for negligently taking up the Pavement of a Street, and depositing the Materials so that Plaintiff was in- jured. Drew v. New River Company, 6 C. & P. 754. (/) 10. Against a Railway Company for negligently setting fire to Stacks, $c. near which their Trains passed, (ni) Aldridge v. Great Western Ry. Co. 3 M. & G. 515; 1 Dowl. N. S. 247; Pigott v. Eastern Counties Ry. Co. (w) 15 L. J. C. P. 235; [3 C. B. 229;] Vaughan v. Taff Vale Ry. Co. 28 L. J. Ex. 41 ; [5 H. & N. 679.] 11. For so negligently constructing a Hay-rick on Defendant's Land, that in consequence of its Spontaneous Ignition his Neighbor's House was burnt. Vaughan v. Menlove, 3 Bing. N. C. 468 ; 5 C. & P. 525. [11a. For negligently lighting a Fire which spread to the Close of the Plaintiff. Filliter v. Phippard, 11 Q. B. 347.] 12. For leaving a Cart and Horse unattended in the Street, whereby the Plaintiff (a Child), by interfering with them in Play, ivas in- jured. Lynch v. Nurdin, 1 Q. B. 29. (o) 13. For negligently lowering a Barrel from a Warehouse, which fell and injured Plaintiff. Randleson v. Murray, 8 Ad. & E. 109. 14. For so negligently tying up Defendant's Cow in a Slaughter-house, that it got loose and killed Plaintiff's Cow. Lloyd v. Walkey, 9 C. & P. 771. 15. For negligently working a Mine under the Land of Plaintiff and his Tenant, whereby the Support ivas weakened. Harris v. Ryding, 5 M. & W. 60. (/) When proper to sue the contractor, in- (n) It was held that the mere fact of a stead of the company, Allen v. Hayward, fire having been caused by a spark from a 15 L. J. Q. I?. 99 ; [7 Q. B. 960.] And see steam engine, was prima facie evidence of ante, Obs. ")72, 57.3. negligence ; and see as to this point, Carpue (m) A railway company are not liable for v. London & Brighton Ry. Co. 5 Q. B. 747 ; accidental fires caused by their engines if cited ante, Obs. 564, 565. they are not guilty of negligence, and have (o) The form in Lynch v. Nurdin is still taken all reasonable precautions. Vaughan good, though the principle of contributory v. Taff Vale Ry. Co. 29 L. J. Ex. 247 ; [5 negligence therein laid down is overruled H. S V 679;] Preemantle v. London & by Abbott v. Macfie, 33 L. J. Ex. 177 ; 2 H. North Western Ry. Co. 31 L. J. C. P. 12; & C. 744, where see a form. See, also, 10 C. B. N. S. 89. [See Smith v. Old Col- Mangan v. Atherton, 35 L. J. Ex. 161 ; L. ony & Newport R. R. Co. 10 R. I. 22.] R. 1 Ex. 239. DF.CLARATIONS IN TORT. NEGLIGENCE. ".79 16. For not keeping the Shaft of a Mine fenced, whereby Plaintiff'* Horse fell in. Sybray v. White, 1 M. & W. 43.".. [17. By a Servant against his Master for employing him to work upon an Unsafe Scaffolding. That the plaintiff was employed [as a bricklayer] by the defendant to-do certain work for the defendant upon a certain Bcaffolding constructed l>y the defendant for that purpose, which said scaffolding was, by the negligence and default of the defendant, constructed unsafely and with defective and improper materials, and was in an unsafe condition and unfil fur the purpose aforesaid, which the defendant well knew, but of which the plaintiff was ignorant : and by reason of the premises, whilst the plaintiff was so employed [as such brick- layer] as aforesaid doing the said work upon the said Bcaffolding, the Baid scaffolding broke and gave way, and thereby the plaintiff was thrown to the ground, and his leg was broken, and he was permanently injured aud rendered unfit for work, and incurred expense for medical attendance. Like counts. Tarrant v. Webb, 18 C. B. 707 ; Roberts v. Smith, 2 II. & N. 213. Like count for providing an unsafe ladder for the servant's use ; Williams v. Cloiifdi, 3 H. & N. 258 ; for employing the servant to work in an unsafe building; Brown v. Accrington Cotton Spinning Co. 3 II. & C. 511. Like count for employing the plaint iff to cut up carcases of cattle which de- fendant knew to be diseased, whereby plaintiff became infected with the disease. Davies v. England, 33 L. J. Q. B. 321. Like count for employing the servant to work in a mine in a dangerous state. Mellors v. Shaw, 1B.&S. 437 ; Hall v. Johnson, 3 II. & C 589. Like count for negligently keeping the machinery at the mouth of the mine in a dangerous state. Griffiths v. Gidlow, 3 II. & N. 648 ; Senior v. Ward, 1 El. & Bl. 385 ; Ashworth v. Stanwix, 30 L. J. Q. B. 183. 18. For Damage to the Plaintiff's Rouse by the Defendant negligently pulling down the Adjoining House, (p) {Venue local.) That the defendant so negligently and unskilfully pulled down a house, adjoining the dwelling-house of the plaintiff, that the walls, floors, and ceilings of the said dwelling-house of the plaintiff were shaken. cracked, and damaged, and bricks, tiles, wood, dust, and rubbish fell from the said house into and upon the said dwelling-house of the plaintiff, and broke the windows thereof, and damaged the furniture and goods of the plaintiff therein; whereby the plaintiff incurred expense in repairing the said walls floors, ceilings, and windows of his said dwelling-house, and his said furniture and goods, and lost the use and enjoyment of his said dwelling-house, g< and furniture for a long time. (p) [An action may be maintained for any port to which the plaintiff was enl damage caused to the plaintiff's house by Dodd v. Holme, 1 Ad. A E. 498; Lanj pulling down the adjoining house in n negh- v. Woods, 7 M v< Q. 625 ; Bradbee v. Christ! gent and improper manner, as distinct from Hospital, 4 M. ft <;. 714 ; Trower v. ( bad- the damage done by the removal of the sup- wick, 3 Bing. N. C. 334 ; 6 lb. l.| 580 DECLARATIONS IN TORT. NUISANCE. Like counts : Dodd v. Holme, 1 Ad. & E. 493 ; Langford v. "Woods, 7 M. & G. 625 ; Trower r. Chadwick, 3 Bing. N. C 334 ; Emblen v. Myers, 6 H. & N. 54 ; Butler v. Hunter, 7 H. & N. 826. A like count, with a count for injuries done to the plaintiff's house by negligently underpinning the party-wall. Bradbee v. Christ's Hospital, 4 M. & G. 714. For injuries done to the plain- tiffs house by negligently constructing a sewer in the neighborhood. Jones v. Bird, 5 B. & Aid. 837 ; Grocers' Company v. Doune, 3 Bing. N. C. 34 ; Ruck v. Williams, 3 H. & N. 308. For negligently keeping a sewer on the defendant's land, whereby an overflow of the contents was discharged on the plaintiff's premises. Alston v. Grant, 3 El. & Bl. 128.] NUISANCE. Obs. — Anything offensive erected or done, so as to render the house or land of another useless and unfit for occupation, is a private nuisance, for which an action will lie. [Smoke, noise, and smells, may severally constitute a nui- sance, and be the ground for an action or for an injunction. Crump v. Lam- bert, L. R. 3 Eq. 409. A material addition to a previously existing nuisance is separately actionable. Crump v. Lambert, supra.'] For a public nuisance no action will lie unless the plaintiff has sustained some particular damage more than the rest of the public. Winterbottom v. Lord Derby, 36 L.J. Ex. 194; L. R. 2 Ex. 316; Rickett v. Metropolitan Ry. Co. 36 L. J. Q. B. 205; [5 B. & S. 156;] L. R. 2 H. L. 175; Wilkes v. Hungerford Market Company, 2 Bing. N. C. 281; Dimes v. Petley, 15 Q. B. 276; 19 L. J. Q.B.449. [See Hartshorn v. South Reading, 3 Allen, 501 ; Willard v. Cambridge, 3 Allen, 574; Quincy Canal p. Newcomb, 7 Met. 276; Brainard v. Connecticut River R. R. 7 Cush. 510, 511; Brightman v. Fairhaven, 7 Gray, 271; Harvard Col- lege v. Stearns, 15 Gray, 1; Stetson v. Faxon, 19 Pick. 147; Thayer v. Bos- ton, 19 Pick. 511, 514; "Smith v. Boston, 7 Cush. 255; Fall River Iron Works, v. Old Colony &c. R. R. Co. 5 Allen, 221 ; Water Co. v. Ware, 16 Wallace, 574; Griffin v. Sanbornton, 44 N. H. 246, 248, 249; Eastman v. Meredith, 36 N. H. 284; Farnum v. Concord, 2 N. H. 392; Lyme Regis v. Henley, 2 CI. & Fin. 331. The rule was stated with some limitations and qualifications in Wesson v. Washburn Iron Co. 13 Allen, 95.] See, in general, 9 Co. 53 b, 59 a; Com. Dig. Action on the Case for a Nuisance; Bac. Abr. Nui- sance; 3 Bl. Com.; St. Helens Smelting Company v. Tipping, 11 H. L. Cas. 642; 35 L. J. Q. B. 66. How to state the injury, see Fitzsimons v. Encjlis, 5 Taunt. 534 ; King v. Wil- liamson, 1 D. & R. 35 ; 1 Chit. PI. 7th ed. 401-403. The action may be brought either against the person who originally caused the nuisance, or against the person occupying the land and permitting the nui- sance. R. v. Pedley, 1 Ad. & E. 822; Penruddock's case, 5 Co. Rep. 101 a. See Bartlett v. Baker, 34 L. J. Ex. 8; [3 H. & C. 153 ;] Salmons v. Bensley, Ry. & M. 189; [Angell Watercourses, §§ 402, 403; Sewall J. in Staple v. Spring 10 Mass. 74; Hodges v. Hodges, 5 Met. 205; Curtice v. Thompson, 19 N. H. 471 ; Eastman v. Amoskeair Manuf. Co. 44 N. H. 143, 156; Baldwin v. Calkins, 10 Wend. 167; Beidelman v. Foulke, 5 Watts, 308; Pillsbury v. Moore, 44 Maine, 156; Hughes v. Mung, 3 II. & MeHen. 441. As to notice to a purchaser, see Noves v. Stillman, 24 Conn. 15; Denio J. in Brown v. Ca- yuga &c. R. R. Co. 2'Kernan, 492; Woodman v. Tufts, 9 N. H. 88; East- man v. Amoskeag Manuf. Co. 44 N. H. 143; Johnson v. Lewis, 13 Conn. 303; Branch v. Doane, 17 Conn. 402, 418; Pillsbury v. Moore, 44 Maine, 156, 157. Where the nuisance is caused by real property or the use of real property, the occupier is prima facie liable, and not the owner merely as owner; the lat- ter can be charged only on some special ground of liability. Russell v. Shen- ton, 3 Q.B. 448; Chauntler v. Robinson, 4 Ex.163, 169; Cheetham t-.Hamp- son, 4 T. R. 318; Bishop v. Trustees of Bedford Charity, 1 El. & Bl. 697; Pickard v. Smith, 10 C. B. N. S. 470; Robbins v. Jones, 15 C. B. N. S. 221. DECLARATIONS IN TORT. NUISAN- 581 Obs. If the damage arises from the non-feasance or the misfeasance of tin- land- lord of t lie premises demised, the party injured maj Bne him. Todd v. Plight, 9 C. B. N. S. 377. 389; Rosewelt v. Prior, 2 Balk. 160; Rex v. Pedley, l A. I. & E. 822; Rich v. Basterfield, 4 C. B. 788; and see (randy v. Jubbi i • B & S. 78. Where the landlord is bound to repair and neglects to do bo, he ii liable for an injury occasioned by a want of repair; Payne v. Roberts, 2 II. Bl. 350; but not otherwise; Cheetham v. Sampson, 4 T. It. 818; Russell v. Shenton, 3 Q. B. 449. The landlord is nol liable for nuisances caused by the mere use of the premises. Rich v. Basterfield, I C. B. 788.] As in the lia- bility of a contractor, see Gray i>. Pullen, 32 L.J. Q. B. 169, 265; [5 B. & "2 f " 1 1 i 1 1 \ Contr. iloy- om- mon of Pasture," " Reversion," post; " Watercourses," post : " Ways," post. Dility 01 a coniraeior, see way v. i mien, .11 u.o. v o. iojf, «ou, S.970;] Ellis v. The Sheffield Gas Company, 2 El. & B1.967; [2 Chittj C01 (llth Am. ed.) 861 et seq. and notes.] As to the liability of those empl ing a contractor, see ante, Obs. 572, 573. See " Ancient Windows," " Cc 1. For obstructing a Highway, (g) That the defendant wrongfully and unlawfully dug a hole or trench in a public highway, and threw stones and earth thereon, which obstructed the same, whereby the plaintiff, who was lawfully passing thereon, was thrown down and injured. [la. For keeping an Obstruction on a Highway unguarded, whereby the Plaintiffs Carriage was upset. ( Venue local.) That the defendant wrongfully suffered certain earth and rubbish, which had been placed by him in a heap on a public highway, to remain there during the night, without any lights or means to prevent persons from driving against the same; whereby the plaintiff, whilst he was lawfully driving along the said highway in the night time, [and using due care,] drove his horse and carriage against the said earth and rubbish, and upset the said carriage and broke the same, and lamed the said horse, and the plaintiff and his wife, who were then riding in the said carriage, were thrown out and injured, and the plaintiff incurred expense for surgical and medical attendance, and for repairing the said carriage and curing the said horse, and was deprived for a long time of the use thereof, and was hindered in his business. Like counts. Peachey v. Rowland, 13 C. B. 182 ; Burgess v. Gray, 1 C. B. 578 ; Hardwick v. Moss, 7 H. & N. 136.] 2. For keeping an Area or Cellar adjoining a Public Highway in a Dangerous State, (r) That the defendants were possessed of an area [" or cellar "] adjoining a pub- lic highway, and wrongfully permitted the same to be unguarded and unsafe to (a) Forms, Winterbottom v. Lord Derby, (r) Similar forms. Bishop 9. Bedford 86 L. J. Ex. 194; L. K. 2 Ex.316; Ellis v. Charity, 28 L J. Q. B. 215; [1 BL ft EL Sheffield Gas Co. 2 El. & 151. 767 ; 27 L. J. 697 ;| Barnes 0. Ward. 9 C. B. 392 ; 19 L. Q. B. 42; [Cooper v. Walker, 2 B. & S. 770; J. C. P. 195; ('..upland .-. Hardman, 8 Richardson v. Loeklin, 6 B. & S. 777 ; Sad- Camp. 898; Proctor 0. Bams, 4 C. A P. ler v. Henlock, 4 El. & Bl. 570.] For leav- 3.'!7 ; Daniells ''. Potter, -J C. • P. 262 J ing excavation without a light. Hardwick v. [Fisher v. Prouse, 2 B. £ S. 770: Jaxvta Moss [7 H. & N. 136;] Newton v. Ellis, 5 v. Deane, 3 Bing. 447; Stone v. Jackson, El. & Bl. 115. Against trustees of roads. 16 C. B. 199 ; Iladley v. Taylor, L. K. 1 C. Harris v Baker 4 M. & S. 27. Surveyor of P. 53 j Hardcastle 0. South Yorkshire Ry. highways. Davis v. Curling, 8 Q. B". 286. Co. 4 II. & N. 67 ; Cornwellv. Metropolitan [Against a contractor for not smoothing the Comm. of Sewers, 10 Ex. 771.] surface of highway, after opening it. Hyams v. Webster, L. R."2 Q. B. 264.] 582 DECLARATIONS IN TORT. NUISANCE. persons lawfully passing along the said highway, whereby the plaintiff, while lawfully passing, fell into the said area or cellar. [State special damage."] 3. For making an Excavation and leaving it unprotected. («) Hardcastle v. South Yorkshire Ry. Co. 28 L. J. Ex. 139 ; [4 H. & N. 67.] 4. For placing Floating Timbers on the Thames, whereby the Access to Plaintiff's Public House, which abutted on the River was ob- structed. (£) Rose v. Groves, 5 M. & G. 613 ; 1 D. & G. 61. [4a. For Nuisance in a Public Navigable River, by leaving Wreck. White v. Crisp, 10 Ex. 312; Brown v. Mallett, 5 C. B. 599. By driving piles &c. White v. Phillips, 15 C. B. N. S. 245.] 5. For obstructing a Highway so as to interfere with Plaintiff's Omni- buses. Green v. London Omnibus Co. 29 L. J. C. P. 13 ; [7 C. B. N. S. 290. See Tanner v. South Wales Ry. Co. 5 El. & Bl. 618.] 6. For obstructing a Private Way, Plaintiff having a Right to pass along the same. Corby v. Hill, 27 L. J. C. P. 318 ; [4 C. B. N. S. 556; Gallagher v. Hum- phrey, 10 W. R. Q. B. 664.] 7. For leaving a Mine uncovered, whereby Plaintiff's Horse fell in, $c. Sybray v. White, 1 M. & W. 435 ; Williams v. Groucott, 4 B. & S. 149 ; 32 L. J.Q. B. 237. [7a. For negligently leaving a Trap Door in a Private Passageway open. Chapman v. Rothwell, El., Bl. & El. 168. lb. For negligently keeping a Shoot in a Sugar Refinery in an unpro- tected state, through which Plaintiff, being lawfully on the Premises, fell. Indermauer v. Dames, L. R. 1 C. P. 274. 1c. By a Guest against the Owner of a House, for Negligence in keep- ing a Door in a Dangerous State, whereby the Plaintiff, opening the Door, was injured. Southcote v. Stanley, 1 H. & N. 247 [held a bad count]. See Seymour v. Maddox, 16 Q. B. 326 ; Gautret v. Egerton, L. R. 2 C. P. 371.] (s) [Against a waterworks company for Market Co. 2 Binqr. N. C. 281 ; Blagrove v. keeping a fire plug; uncovered in a highway, Bristol Waterworks, 1 H. & N. 369 ; 26 L. and damage in consequence. liavley d. J. Ex. 57 ; [Rose v. Groves, 5 M. & G. 613 ; WolTerampton Waterworks Co. 6 H. & N. Davis v. Walton, 8 Ex. 153; Simmons v. 241 I , Lillystone, 8 Ex. 431.] (t) Similar forms, Wilkes v. Hungerford DECLARATIONS IN TORT. NUISANCE. 583 8. For setting Spring Guns. 7 & 8 Geo. 4, c. 18, s. 1 ; Forms, Ilott v. Wilkes, 3 B. & AM. 804j Bird v. Holbrook, 4 Bing. 628. Dog spears, &c. Deane v. Clayton, 7 Taunt. 489 ; Sears v. Lyon, 2 Stark. R. 317 ; Townshend v. Wathen, 9 East. 277 ; Jordin v. Crump, 8 M. & W. 752. 9. For Injury by a Grun being intrusted to an Unfit Person. Dixon v. Bell, 5 M. & S. 198 ; 1 Stark. R. 287, S. C. [9a. For Negligence in lending a Machine with a Known Defect in it, in using which the Plaintiff was injured. Blakemore v. Bristol & Exeter Ry. Co. 8 El. & Bl. 1035 ; M'Carthy v. Young, 6 H. & N. 329.] 10. For wrongfully placing Scythes in a Public Street, whereby Plain- tiff tvas injured. Marriott v. Stanley, 1 M. & G. 568; [Hughes v. M'Fie, 2 H. & C. 744 ; Mangan v. Atterton, L. R. 1 Ex. 239.] 11. For annoying Plaintiff by placing Lighted Brimstone in a Church Tower where Plaintiff was ringing the Bells. Evans v. Lisle, 7 C. & P. 562. 12. For not repairing a Privy adjoining Plaintiff's House. 3 Lord Raym. 324 ; Russell v. Shenton, 3 Q. B. 449. The occupier is the person prima facie liable. lb. 13. For erecting a Mound, $c. on a Hill above Plaintiff's House, whereby it was unsafe, £c. Norris v. Daniell, 4 M. & Scott, 383 ; S. C. 10 Bing. 507. 14. For erecting adjoining House so that it projected over the Plain- tiff's, and the Bain, $c. fell thereon. Fay v. Prentice, 1 C. B. 828; see Thomas v. Thomas, 2 Cr.. M. vV R. 35. Similar form by a reversioner, Tucker v. Newman, 11 Ad. & E. 405. [Against the landlord of the adjoining house, who had demised it with :i dan- gerous chimney, which fell on to the plaintiff's house. Todd v. Flight, 9 C. B. N. S. 377. ^ n 15. For folding a Well. ( Venue local.) That the plaintiff was possessed of certain land and of a well therein, and of water in the said well, and me entitled to the use and Denefit of the said well and of the said water therein, and to have certain springs and streams of water which flowed and ran into the said well to Bupply the same, to flow and run without being fouled or polluted ; and the defendant wrongfully fouled and polluted the said well and the said water therein, and the said springs and streams of water which flowed into the said well, whenl.v " - 1 DECLARATIONS IN TORT. NUISANCE. the said water in the said well became impure and unfit for domestic and other necessary purposes, and the plaintiff and his family were and are deprived of the use and benefit of the said well and water. A like count. Ilipkins v. Birmingham &c. Gas Co. 5 H. & N. 74 ; 6 H. & N. 250.] 16. For a Nuisance to a Dwelling-house, (u) That the plaintiff was possessed of a dwelling-house in which he dwelt, and the defendant wrongfully built a brick kiln near thereto, and caused noxious and unwholesome smells, whereby the plaintiff's dwelling-house became unfit to live in. [16a. For a Nuisance in carrying on a Noxious Manufacture on Land adjoining the Plaintiff's. ( Venue local.) That the defendant wrongfully caused to issue and proceed from certain smelting works, carried on by the defendant, large quantities of offensive, poisonous, and unwholesome smoke, and other vapors and noxious matter, which spread and diffused themselves over and upon certain lands of the plaintiff, and impregnated and corrupted the air, and settled and were deposited on the soil and surface of the said lands, whereby the trees, hedges, herbage, and crops of the plaintiff growing on the said lands were damaged and deteriorated in value, and the cattle and live-stock of the plaintiff on the said lands became unhealthy and diseased, and divers of them were poisoned and died ; and by reason of the premises the plaintiff was unable to depasture the -aid lands with cattle and sheep as he otherwise might have done, and was obliged to remove his cattle, sheep, and farming stock therefrom, and has been ented from having so beneficial and healthy a use and occupation of the said lands as he otherwise would have had. .1 like count. St. Helens Smelting Co. v. Tipping, 4 B. & S. 616.] 17. For a Noisy Nuisance to a Dwelling-house in manufacturing Iron. ESliotson v. Feetham, 2 Bing. N. C. 134; Simpson v. Savage, 1 C. B. N. S. 84' : 26 L. J. C. P. 50; Mumford v. Oxford, Worcester & Wolverhampton By. Co. 1 II. & N. 35. (x) 18. For raising a Bank, whereby Water flowed over Plaintiffs Land. Brine v. ( keat Western Ry. Co. 31 L. J. Q. B. 101 ; [2 B. & S. 402.] 19. For stopping up a Watercourse along which Plaintiff had a Right to let Water flow. Roberts v. Rose, 33 L. J. Ex. 241 ; [3 H. & C. 162.] ran. Hole -•. Barlow, 27 L.J. C. ford v. Oxford, Worcester & Wolvcrhamp- ' B. -V S. 884; Flight t\ Thomas, ton Ry. Co. 25 L. J. Ex. 265; [I H. & N. 1" A 90. And see Bamford v. Turn- 34 ;1 Tipping v. St. Helens Smelting Com- ]••>. 81 L. .1. Q. 1', 28G; [3 B. & S. 62;] pany, 4 B. & S. 608. Hole P. Harlow, sup. Form (x) For a form for working a steam-en- ""'' :i wn [ " : injunction, Delarne v. For- ginc and keeping up large fires in a building •• •' Ex. 339 ; \2 II. &. N. 324;] adjoining plaintiff's premises, see last ed. of port Waterworks v. Potter, 81 L.J. this work, p. 598. For manufacturing can- ; |. H. •. N. u,0;] Simpson v. Savage, dies. 2 Chit. PI. 7th ed. 586. For keeping 1 L. 15. N B. 347 ; 26 L. J. C. P. 50; Mum- a slaughter-house. 2 Chit. PI. 7th ed. 587. DECLARATIONS IN TORT. PATENTS. 585 20. For permitting Seioer to overflow on to Plaintiff 's Land. Alston v. Grant, 23 L. J. Q. B. 163 ; [3 El. & Bl. 128. For allowing noxious matters from a tan-pit of defendants to flow into plain- tiff's premises. Chadwick v. Marsden, L. R. 2 Ex. 285.] 21. For keeping Offensive Drains. Russell v. Shenton, 3 Q. B. 449 ; 11 L. J. Q. B. 289. 22. For negligently constructing a Sewer so as to be a Nuisance. The Company of Proprietors of the Southampton & Itchin Floating Bridge and Road v. The Local Board of Health of Southampton, 28 L. J. Q. B. 41 ; [8 El. & Bl. 801.] » PATENTS. Obs. — A grant of a patent-right is not ex debito justitice, but an act of royal favor, conferring a privilege upon the grantee, who must be the first inventor of some new contrivance in manufacture. To confer upon any individual the ex- clusive right of carrying on any particular trade or manufacture amounted, at common law, to an offence called monopoly, and the first statute on the subject of patents (21 Jac. 1, c. 3, called the Statute of Monopolies), declares it to be " altogether contrary to the laws of this realm; " an exception was, however, made in favor of the authors of new inventions: '• All letters-patent for the term of fourteen years or under, by which the privilege of sole work- ing or making any new manufactures within this realm, which others, at the time of granting the letters-patent, shall not use, shall be granted to the first and true inventor thereof, so as they be not contrary to law, nor mischievous to the state, nor to the hurt of trade, nor generally inconvenient." Bl. Com. The principal statutes relating to patents are, the Statute of Monopolies, 21 Jac. 1, c. 3; 11 & 12 Vict. c. 84; 12 & 13 Vict. c. 109; 15 & 1G Vict. c. 83; 16 & 17 Vict. c. 115; and 22 Vict. c. 13. [For the patent laws of the United States, see Rev. Sts. U. S. tit. lx. § 4883 < t s. 7 .] For the law on the subject, see Com. Dig. tit. Patents; and treatises by Godson, "Webster, Smith, Hindmarsh, and Lund; Har. Ind. tit. Patents; Bl. Com. vol. ii.; and post, pleas, tit. •• Patents." [Curtis Patents; cases cited in Rev. Sts. U. S. lit. lx. § 4886 ; 2 Kent, 366 et seq. Courts of the United States have exclusive jurisdiction uf controversies arising under patent laws. Rev. Sts. U. S. c. 12, p. 135, § 711.] The subject of a patent must be a manufacture. Cornish v. Keene, 3 Bing. N. C. 586 ; Rex v. Wheeler, 2 B. & Aid. 345. The manufacture must be new within this realm. Kay v. Marshall. 5 Bing. X. C. 492; Carpenter v. Smith, V M. & W. 300 ; Sellers r. Dickenson, 5 Ex. 312; Re Adamson's Patent, 25 L. J. Ch. 457; Heath v. Smith, 3 El. & Bl. 256; Oxley v. Holden, 8 C. B. N. S. 666; Ralston v. Smith, 11 H. L. C. 223 ; Jor- dan v. Moore, 35 L. J. C. P. 268; L. EL 1 C. P. 624; Barwood v. Great Northern Railway, 35 L. J. Q. B. 27 ; Penn v. Bibby, L. R. 2 Ch. Ap. 127. The grantee must be the first and true inventor. Nickels V. Koss, 8 C. B. 679; Lewis v. Marlin, 10 B. & C. 22 ; Walker v. Congnvc, Cudson, 68, note, ed. 1832. [As to who is the first inventor, Bee 2 Kent. 369, note (b): Joyler v. Wilder, 10 How. 477; Seymour <•. Ashorne, 11 Wallace, 516; Neilson v. Betts, L. R. 5 H. L. 1 ; L. R. 3 Ch. Ap. 129.] The right to a patent may he assigned, and the assignment should be by writ- ing under hand and Beal, and must he perfected by registration. Chanter v. Le°ese, 5 M. & W. 700. [See Rev. Sts. U. S. tit. lx. p. 956, § 4898.] The use of a patent may also be granted by license. Chanter v. Dewhurst, 12 M. & W. 823. The license need not be under seal to enable the grantor to 586 DECLARATIONS IN TORT. PATENTS. Obs. recover royalties for the enjoyment of the patent. Ante, 218. There is no implied warranty of goodness in the patent. lb. Nor can the licensee kn- peach the validity. lb. A license to a person to manufacture is an authority to his vendees to vend without the consent of the patentee. Thomas v. Hunt, 17 C. B. X. S. 183. As tu what is infringement, Unwin v. Heath, 16 C. B. 713; Curtis v. Piatt, 35 L. J. Ch. 852; [Brown v. Duchesne, 19 How. (U. S.) 183; Walton v. La- vater, 8 C. B. N. S. 162.] As to what constitutes user, Betts v. Nielson, 34 L. J. Ch. 537; [L. R. 5 H. L. 1.] Where A. and B. were tenants in common of a patent assigned to them, and B. dies, actions for infringement survive to A., who is entitled at law to recover the whole damages. Smith v. London & North Western Railway, 2 El. & Bl. 69. A count for " Exposing to sale " is bad. Winter v. Williams, 4 Ad. & E. 251. Bv 5 & 6 W. 4, c. 83, s. 1, any person having obtained letters-patent for any invention, may enter a disclaimer of any part of his specification, or a mem- orandum of any alteration therein, which, when filed as therein mentioned, shall be deemed part of such specification; and that section provides that a caveat may be entered as heretofore, that the disclaimer shall not affect ac- tions, save a proceeding by sci.fa., pending at the time, and that the attor- ney-general may require the party to advertise his claim. See Thomas v. Welch, 35 L. J. C. P. 200; 1 L. R. C. P. 192. As to the object and mean- ing of a disclaimer, Ralston v. Smith, 11 H. L. C. 223. The original pat- entee may enter a disclaimer, though he may have assigned his right. Wall- ington v. 'Dale, 6 Ex. 284; 23 L. J. Ex. 49; Spilsbury v. Clough, 2 Q. B. 467; and see 7 & 8 Vict. c. 69, ss. 5 & 6. The 2d section points out the mode of proceeding, where the patentee is proved not to be the real inventor, though he believed himself to be so. In Perry v. Skinner, 2 M. & W. 471, it was held that where a patent is originally void, but amended under this statute by filing a disclaimer of part of the invention, the act has not a retrospective operation, so as to make a party liable for an infringement of the patent prior to the time of entering the disclaimer, al- thougfi the infringement related to a part of the invention not disclaimed. See Stocker v. Warner, 1 C. B. 148. By the 3d section, if in any action respecting an infringement of a patent, a verdicl shall pass for the patentee, the judge may grant a certificate that the validity of the patent came into question, which being given in evidence in any other action touching such patent, the patentee, if he have a verdict, shall have treble costs, unless the judge, in such second action, shall certify he ought not to have treble costs. The 5 & 6 Vict. c. 97, s. 2, provides that, instead of Buch costs, a full and reasonable indemnity as to all costs, charges, and ex- penses, incurred in and about any action, only shall be payable — on these sections, and s. 43 of 15 & 16 Vict. c. 83. See Bovill v. Hadley, 17 C. B. N. S. 486 Davenport v. Rylands, 35 L. J. Ch. 204; L. R. 1 Eq. 302; and Gray on Costs, 181. Where the defendant consented to a verdict, no certificate was granted. Stocker v. Rodgers, 1 C. & K. 99; Bovill v. Hadley, 17 C. B. N. s. 185. See Gillett v. Green, 7 M. & W. 347; Gillett v. Wilbv, 7 C. & 1'. Til- ;;li b< ction, amended and extended by 2 & 3 Vict. c. 67, and 7 & 8 Vict. e. 69, points out the mode of proceeding^ in case of application for the pro- it iun of the tenn of the patentee. For the conditions upon which a pro- ition will be -ranted, see Re Markwick's Patent, 13 Moore P. C. 310; [n re Trotman's Patent, L. R. 1 P. C. 119; 3 Moore's P. C. C. N. S. 588; In Patent, L R. 1 P. C. 308; 4 Moore's P. C. C. N. S. 175 ; In re Patent, L. Q. 1 P. C. 506; In re Goucher's Patent, 2 Moore's P. C. ( N -': In re Allan's Patent, L. R. 1 P. C. 507, and the cases cited therein. An extension may be granted to an assignee; Ledsam v. Russell, II M. & \V. 57 1; 1 II. L. C. 687; or to the assignee and patentee con- jointly. In re Herbert's Patent, L. R. 1 P. C. 399; 4 Moore P. C. C. N. S. 800; 7 &8 Vict c. 69, s. 4. ion, amended by 15 & 16 Vict. c. 83, s. 41, in any action for the Infringement of letters-patent, particulars of the breaches must be delivered with tie declaration, and particulars of objections with the pleas. Palmer v. DECLARATIONS IN TORT. PATENTS. 587 DBS. Cooper, 9 Ex. 231 ; Heath v. Unwin, 10 M. & W. 684; Leaf v. Topham, 10 M. & W. 116. 'Hie particulars must be precise; Fisher v. Dewick, 1 Brag. N. C. 706; and no evidence can he given in support of the alleged infringe- ment or objections which is not contained in such particulars. Daw v. Kiev, L. K. 1 Eq. 38; but see Chollett v. Hoffman, 7 El. & Bl. 686. For particu- lars of breaches, see Talbot v. La Roche, 15 C B. 310; Jones v. Lee, 25 L. J. Ex. 241; Curtis v. Piatt, 35 L. J. Ch. 852; Thomas v. Welch, L. 11. 1 C. P. 192 ; 35 L. J. C. P. 200. By the 7th section, a penalty is inflicted for using without authority the name of a patentee. The grant of the patent is conclusive evidence against the de- fendant in an action under this section. Myers v. Baker, 3 H. & N. 802; 28 L. J. Ex. 90. By the 15 & 16 Vict. c. 83 (the patent law amendment act, 1852), power is given to any of the superior courts of common law in which an action for the infringement of a patent is pending, to grant orders for an injunction, inspec- tion, or account. In the application for inspection, the plaintiff must show that it is material and for the purposes of the cause. Amies v. Kelsey, 22 L. J. Q. B. 34; Meadows v. Kirkman, 29 L. J. Ex. 205. For a form for an or- der to account, see Walton v. Lavater, 8 C. B. N. S. 191. The cyder should not extend to sales before action until after final judgment. Vidi v. Smith, 3 El. & Bl. 969. An injunction may also be granted under 17 & 18 Vict, c 129, s. 82. Gittins v. Symes, 24 L. J. C. P. 48. See, also, Day's C. L. P. A. 240. Proceedings for an injunction should be taken without delay. Bovill v. Crate, L. R. 1 Eq. 388. In seeking for an injunction, an inclusive licensee has a right to use the name of the patentee. Renard v. Levinstein, 2 H. & M. 628. The 8th and 9th sections refer to depositing provisional and complete specifica- tions of the invention with the law officer of the crown; a form of specifica- tion is contained in the schedule to the act. See Thomas c Welch, 35 L. J. C. P. 200. A provisional specification, if allowed by the law officer of the crown, cannot be impeaced as too general. Penn o. Bibby, L. R. 2 Ch. Ap. 127. The filing of a provisional specification is not a publication within the statute. Oxbey v. Holden, supra. A grant of letters-patent to a subject does not exclude the crown from using the in- vention without the license of the patentee. Feather r. Reg. 35 L. J. Q. B. 200. If the plaintiff in an action for infringement is successful, he is entitled to an account of sales. Trotman v. Wood, 16 C B. N. S. 479. An assignee is entitled to an account of profits from the time his title was completed. El- wood v. Christy, 34 L. J. C. P. 130. As to rights of co-patentees to profits, see Mathew v. Green, 35 L. J. Ch. 1. As to damages in a suit to restrain, Betts v. De Vitre, 34 L. J. Ch. 289. As to damages, Penn v. Bibby, L. R. 3 Eq. 308. See ante, part 1, pp. 219, 443, " Patents," and post, pleas, " Patents." 1. For Infringement of a Patent ( Common Law Procedure Act, 1852, Schedule B, 31). (#) That the plaintiff was the first and true inventor of a certain new manu- facture, that is to say, of certain improvements in the manufacture of sulphuric acid, " and thereupon her majesty Queen Victoria, by letters-patent under the great seal of England, granted the plaintiff the sole privilege to make, use, exercise, and vend the said invention within England, for the term of fourteen years from the day of , a. D. -, subject to a condition that the plaintiff should, within six calendar months next after the date of the said letters-patent cause to be enrolled in the high court of chancery, an instrument (y) For other counts, see Tetlev i*. Easton, 522 ; 16 lb. 713 ; Holmes v. London & North 26 *L. J. C. 1\ 269 ; Muntz v. Forster, 6 M. Western Rv. Co. 12 C. B. 881; Bovffl v. &G. 734; Meyers v. Bilker, 3 H. & N. 802 ; Pimm, 11 Ex. 718; Smith v. London & 28 L. J. Ex. 90; [Heath v. Unwin, 12 C B- North Western Ry. Co. 2 El. &. Bl. 69-1 588 DECLARATIONS IN TORT. PATENTS. in writing under his hand and seal, particularly describing and ascertaining the nature of his said invention, and in what manner the same was to be and might be performed ; and the plaintiff did, within the time prescribed, fulfil the said condition,* and the defendant during the said term did infringe the 6aid patent-right, (r) -. For Infringement ; Claiming an Injunction and an Account. Thomas v. Hunt, 17 C. B. N. S. 183; [Hills v. London Gaslight Co. 5 II. & N. 312 ; Walton v. Lavater, 8 C. B. N. S. 162.] 3. For Royalties under a License to use Patent. Oxley v. Holden, 8 C. B. N. S. 666 ; Trotman v. Wood, 16 C. B. N. S. 479. 4. For Infringement of a Renewed Patent. Russell v. Ledsam, 14 M. & W. 574. 5. By the Original Patentee and the Assignee of one Moiety, for In- fringement, setting out the Assignment, and a Disclaimer of Part. Commence as in Form 1 down to asterisk, putting " plaintiff A. B." instead of " plaintiff," and proceed:"] And afterwards, by deed under the hand and seal of the said A. B. {one of the plaintiffs), duly registered and enrolled according to the statutes in such case made and provided, the said A. B. assigned one moiety of his interest in the said letters-patent and invention to the said C. D. (the other plaintiff), and afterwards by leave of Sir , her majesty's solicitor-general, duly certified in that behalf, according to the form of the statute then in force in such case made and provided, duly entered with the clerk of the patents of England, a disclaimer or alteration under their hands and seals of certain parts of the said specification, stating the reason of such disclaimer, the same not being such an alteration as extended the exclu- sive right granted by the said letters-patent; and the defendant, after the making, entering, and enrolling of the said assignment and disclaimer, and during the said term of fourteen years, did infringe the said patent-right as limited by the said disclaimer. 6. For Infringement, stating Disclaimer or Alteration of Part under Pat. Law Amend. Act, 1852, s. 39. Talbot v. La Roche, 15 C. B. 310. 7. For the same, stating two Disclaimers. Tetley v. Easton, 26 L. J. C. P. 269 ; [2 C. B. N. S. 706.] 8. By an Assignee, for Infringement. i bollet r. Boffman, 7 El. & Bl. 686; 26 L. J. Q. B. 249 ; [Schlumberger t-. lister, 29 L. .1. Q. B. 157. By the assignee of a patent stating a disclaimer of part. Spilsbury v. Clough, 2 Q. V, 466.] (*) Wot urignment of breaches, see Cornish v. Keene, 3 Bing. N. C. 570; Schlumberger i Lister, 29 L. J. Q. B. 156. DECLARATIONS IN TORT. PEWS. 589 9. By an Assignee for Infringement of Renewed Patent. Russell v. Ledsam, 14 M. & W. 574. 10. By an Assignee of Two Several Moieties of a Patent for its In- fringement. Walton v. Lavater, 29 L. J. C. P. 275 ; [8 C. B. N. S. 162.] 11. By an Assignee of a Separate and Distinct Part. Dunnecliffe v. Mallett, 29 L. J. C. P. 70. 12. By the Survivor of Two Tenants in common for Infringement during the Lifetime of Deceased Tenant. Smith v. London & North Western Ry. Co. 2 El. & Bl. 69. 13. By the Holder of an Undivided Moiety of a Patent, and the Assignee of the other Moiety, jointly, for an Infringement. Cornish v. Keene, 3 Bing. N. C. 570. 14. Count on an Agreement for an Assignment of a Patent. Lewin v. Brown, 14 W. R. 640. 15. For imitating Plaintiffs Trade-mark. See ante, " Fraud ; " and post, " Trade-marks." 16. Form for Particulars of Breaches under 15 v \\ . 3. For not paying Money to the Plaintiff whv a Duty tn pay, ( c | Cane v. Chapman, 5 Ad. & E. 647 ; and see Pardee r. I *i i« . .11 \I. J U . RECTOR. Obs. — By the common law, an incumbent of a living !■ bound age house and chancel in good and substantia) repaii when necessary, according to the original form, without improvement; but he is ool bound to supply or main ure of ornament, such as painting (unless oei timber from decay), and whitwashing, and papering. Wiser. M & C. 299; Radcuffe v. D'Oyley, 2 T. B pulling down old buildings, and erecting new ones m ncial to the living. Huntley v. Russell, 18 Q. B 572; 18 L.J An action is maintainable by the >rs ol .i d< ■■ the executors of his predecessor for dilapidations vrhicli incumbency of the predecessor. Bunbury II Ex. 258; Bird v. Ralph, 2 Ad. & E. 773. ' But tit.- claim in idations is to be postponed in the distribution specialty and simple contract debts. Bryan o. Clay, i I 5c 1 J. Q. B. 23. Upon an exchange of living, an agreem for dilapidations is valid, and maybe pleaded. Goldham i J. C. P. 223; 24 L.J. C. P. 189; Downes v. Craig, 9 M. \ w 11 L J. Ex. 239. A lay rector cannot maintain an action i the vicar for removing a lock placed by the rector apon a door li ulin chancel. Griffin v. Deighton, 5 B. & 8. 1 - 1 Q B liaras on Executors; 2 Saund. 235. S rms in tin- • 2 Chit. PI. 7th ed. 597. The venue is local. REPLEVIN. Obs. — See, in general, Bacon's Abr. Replevin; 2 Sannd. I [The action of replevin lies, it is said, when taken out of the posses-ion of the owner. Com I 1 v. Bird, 4 Bing. 299; Mellor v. Leather, l EL \ B bers, 11 M. &^V. 149; Allen v. Bharp, 2 Bs &S.425. But it is not usual to have recoorse to thi of goods unlawfully distrained; and it lias been q ever applicable in any other case. Rlennii Replevin consists in the" redelivery of the goods taken I '6) See ante, "Corporation," p. 501. (c) fi 592 DECLARATIONS IN TORT. REPLEVIN. Obs. formerly made by the sheriff, who took the goods from the distrainor, and redelivered them to the owner upon the execution of a replevin bond by the owner and two sun-ties, conditioned to prosecute his suit with effect and with- out delay against the distrainor, and to return the goods if a return should be awarded. IStat. Marlbridge, 52 Hen. 3, c. 21; Stat. Westm. 2d, 13 Edw. 1, c. 2 ; 11 Geo. 2, c. 12, s. 23. By the act 19 & 20 Vict. c. 108, ss. 63-66, the powers and responsibilities of the sheriff with respect to replevin bonds and replevins were taken away; and the same or similar powers were transferred to the registrar of the county court, who now grants replevin upon security being given for prosecuting the suit, under §§ 64, 65, and 66 of the above act. Formerly the action of replevin could not be commenced in the superior courts. It was commenced in the old county courts, from which it might be removed bv either party into the superior court. The law in respect to the jurisdiction and practice in replevin has been considerably changed by stats. 9 & 10 Vict, c. 95, s. 119, and 19 & 20 Vict. c. 108.] An action of replevin cannot be joined with any other form of action. Com- mon Law Procedure Act, 1852, s. 41. The plaintiff must, as in trover (pott), be the general owner or a special owner, and must have the possessory rijdit. See, in general, 3 Bl. Com. 147; Wil- kinson on Replevin; 1 Saund. 347 b, note (2); 1 Chit. PI. Ind. Replevin; 2 Stark. Ev. Replevin ; Selw, N. P. tit. Replevin. Replevin is the proper form to recover possession of a specific chattel; Dore v. Wilkinson, 2 Stark. R. 288; and it lies for goods taken bv distress under a magistrate's warrant; George v. Chambers, 11 M. & W. 149; Mellor v. Leather, 1 El. & Bl. 619; 22 L.°J. Q. B. 169; see Allen v. Sharpe, 2 Ex. 352; 17 L. J. Ex. 209; also, for an illegal taking in the first instance, or for an unlawful detention after a legal taking. Evans v. Elliott, 5 Ad. & E. 142. But there must be an un- lawful taking. Galloway v. Bird, 4 Bing. 299. As also a taking out of the possession of the owner. Mennie v. Blake, 6 El. & Bl. 842 ; 25 L. J. Q. B. 399. See post, pleas. As to judgment, damages, and costs in replevin, see 2 Chit. Arch. Ind. in voc. [As to the cases in which replevin may be maintained in the American states, and the practice therein, see 1 Chitty PI. 181, note (a 1 ), and cases cited.] 1. Declaration in the Superior Court. Venue local, (c?)] That the defendant in a certain die elling -house [or "in a certain close," or " common "], called , (e) took the [" cattle "] goods and chattels of the plaintiff, that is to say, ten tables, (/) and unjustly detained the same against sureties and pledges, until [#c], whereby the plaintiff has sustained damage to the amount of £ . (g) (d) The venue may be in the county where other the goods, to wit, ," or " the cat- the distress was originally taken, or in a tie, to wit, ," &c. Com. Dig. Pleader, countv in which the goods were in the de- 3 K. 10. The plea of non cepit disputes the fendant's custody upon the occasion. Wil- correctness of the declaration as to the place son v. Kersop, 2*Wils. 354; 1 Saund. 347. of seizure. (e) The place, as whether it was a house, (/) The goods, &c. must he described yard, or close, must be stated accurately; with at least as much certainty as in t\ and it seems the names or abuttals of the See 3 Saund. 74 b; Banks v. Angell, 7 Ad close should be specified; 1 Saund. 347, & E. 855. [What is a sufficient descripti"ji note (1) ; Potten v. Bradley, 2 M. & P. 78 ; of goods in replevin, see Litchman v. Potter, or the declaration would formerly have been 116 Mass. 371. The value of the goods demurrable. Banks v. Angell, 7 Ad. & E. plevied need not be stated in the writ 855. The caption may be stated to be in Blake v. Darling, 116 Mass. 300; Litchman the place where the original seizure was, or v. Potter, 116 Mass. 371.] The following in a close or place wherein the distrainor form describes the seizure of standing afterwards led or had the goods or cattle in under 11 G. 2, c. 19, s. 8, " in a certain i the way to the pound. 1 Saund. 347, note there called , took the corn of the plaiu- (1 ) ; Walton v. Kersop, 2 Wils. 354. Where tiff, to wit, acres of standing wh at I different effects are taken in various places then growing." Replevin does nut lie lor fix- the form should be "in a certain dwelling- tures qua fixtures. Niblet v. Smith, 4 T B house there took the goods, to wit, , and 504 ; Amos Fix. 252, 257. in a certain yard [or 'close'], there took (g) A sum covering the real damage. DECLARATIONS IN TOBT, REV] .', ,,; REVER8K Ors. — A landlord or person having the immediate ■ may maintain an anion against a party who commit isesof so permanent a nalurt that the n the wrong-doer is also liable to the tenant to th< tains Ln reference to his | — -■„•. right and li may sue for an injury to the land, 8tc. arisin ing to ancient lights or privileged win I v. Gifford, 1 Bur. 2141, where the earlier autl the stopping up a right of waj attached to the | Chit. PI. nil ed, 589, note (n)\ i Baun I Btruction, &c. of a watercourse running th< & W. 77; Greenslade <•. Balliday, 6 King. 35 i; K V. 177; Talk r. Skinner, is < v >. I;. .68; .■.: L. J. Q I; against a tenant for opening a d • in a wall. t.> the j reversion, although actual damage to the h that the jury ought to have been directed to inquin interest had or had not been injured, which might I Btroving evidence of title, &c. although the \ Spencer, 10 li. & C. H- r >. A reversioner m.i\ sue for n i reversionary interest, although no other present in aance be such that it is capable of removal possession. Bhadwell v. Hutchinson, M. \ M . I t>. Newman. 11 Ad. & E. I""-. lie may sue n though the tenant concurred in committing ii and r. Pulman, M, & M. -1<>1 ; ami the mortgagee ol of the tenant. Bitchman '•. Waltman, i M & \\ 109. tenancy laid in the declaration, Bee ante, i mised a cottage without exception of mine-, it was held thai case for an in jury occasioned to the cottage bj a coal, though it was not clear under whose premises the i Elaine o. Alderson, 4 Iiiir_ r X. ('. 702. Si e a form for * a house in which the plaintiff had a reversionary int ing the foundations, Hinton v. Lord Granville, 5 Q. B • I I tion must allege the act to have been d ■ to the dan reversion, or must state an injury of such a permanent i sarily injurious to his reversion, otherwise the judgment verdict. Mumford v. Oxford, Worcester & VVolverhami I Ex. 265; [1 H. &N. 34;] Simpson v. Savage, 26 L. J. I I' S. 347.] Therefore, a reversioner cannot Bue tor the • of way, unless it he such as permanently to injure hi- i denial of the right. Hopwood v, Scofield, 2 M. & H v. Taylor, 4 B. & Ad. 72. And when' the plaintiff dec of a yard and part of a wall occupied by his tenant, and tl. wrongfully placed bricks. &c. on the said part of the height, and placed timber thereon overhanging the yard, lost the use of the wall, and rain. &c flowed into th yard, were injured, to plaintiff's damage, &c. wit sion was injured, the court arrested the judgment. & Sel. 284. In Hare v. Horton, ■'< B. \ Ad. 71.'-. the d< a foundry, messuages and cranes, boilers < l oilier t were described, were in the possession of the plaint belonging to plain tiff; ami that the defendant, contriving to in his reversionary interest, broke ami entered the foundn and messuages with the appurtenants, cran prostrated the same, seized, carried away, and converted ;1 and the crane-. &C. affixed to plaintiff- and spread the same with ruhhi-h. greatly injuring lie tate. Plea, not guilty. At the trial it appeared that thi to the fixtures; held, nevertheless, that enough ap| vol. ii. 38 594 DECLARATIONS IN TORT. REVERSION. Obs. to support a verdict for the plaintiff for unnecessary damage done in remov- ing the fixtures, of which proof had been given. See " Landlord and Tenant," ante, 535. Gale on Easements, by Willes. 1. For an Injury to the Plaintiff's Reversion in a Dwelling-house. (K) Venue local.~] That A. B. was tenant to the plaintiff of a dwelling-house [or "land," as the case may be], the reversion thereof being the plaintiff's; and the defendant wrongfully injured the plaintiff's said reversion by pulling down a portion of the said house [according to the fact]. 2. For Injury to the Plaintiffs Reversion by digging Holes in the Sand for quarrying. Rogers v. Taylor, 26 L. J. Ex. 203 ; 1 H. & N. 706. 3. For Injury to the Plaintiffs Reversion by cutting off the Eaves of a Building belonging to him, and erecting a Wall with a Drip over his Premises, (i) Bathishill v. Reed, 18 C. B. 696; 25 L. J. C. P. 290. 4. For Injury to Plaintiff's Reversion by obstructing Ancient Lights. The Metropolitan Association, &c. v. Petch, 5 C. B. N. S. 504 ; 27 L. J. C. P. 330. 5. For Injury to Plaintiff's Reversion by obstructing a Right of Way by locking a Grate. Kidgill v. Moor, 19 L. J. C. P. 177 ; (k) [9 C. B. 364.] 6. By a Landlord for Injury to his Reversion by erecting a Raised Footpath, Posts, $c. through Fields occupied by his Tenants, in order to exercise a Pretended Public Right of Way. (V) See form in the last edition of this work, p. 609. 7. By the Owner of Goods in Reversion for injuring them, §c. Qm) That the plaintiff was the owner of goods, that is to say [describe them], let (h) Form for opening a new door, and The owner can sue for a permanent injury ; thereby weakening the building. Young v. Mears v. London & South Western Rv. Co. Spencer, 10 B. & C. 145. For cutting and 31 L. J. C. P. 220; [11 C. B. N. S." 850,1 carrying away branches of trees. Cotterill where see the cases collected. It is a rule v. Hobby, 4 B. & C 465. that in order to maintain trover for an injury (i) Similar form. Tucker v. Newman, to or conversion or detention of goods, the 1 1 Ad. & E. 40. plaint iff must have had at the time the cause (k) This action cannot, in general, be of action accrued the actual possession of. or brought bj a reversioner unless the disturb- the right to the immediate possession of the ance be of a permanent character. Sec, also, goods, and he must have once had possession Polk v. Skinner, 18 Q. B. 568 ; 22 L. J. Q. B. of the goods, the right to obtain the custody 27; Bell v. Midland Ry. Co. 30 L. J. C. P. 273. only is not sufficient. Addison v. Round. 4 (/) This form was used in a case in which Ad! & E. 803; 1 Ch. PI. 170, 7th ed. If he the plaintiff hail a verdict. be the general owner, but has only a title or (m) See forms, Jenkins v. Cooke, 1 Ad. interest in reversion, and the possessory rw & E. 372 ; Hare v. Horton, 5 B. & Ad. 715; is vested in another person by virtue of a Lancashire Wagon Company v. Fitzhugh, letting to hire, &c. a special action ou the 30 L. J. Ex. 231 ; [6 H. & N. 502 ;] Tancred case in the above form for an injury to the v. Allgood, 4 H. & N. 438 ; 28 L. J. Ex. 362. reversion must be brought See Goulon » DECLABATIONS IN TOBT. BHEBIFP& °" ^ e to ^ B ; for/ time onexpired, the reversion of the plaintiff; and the defendant wrongfully injured the plaiutifl by breaking and damaging the Baid goods. 8EAMAN. Ons. — There is no implied obligati , the pari of the owner of seaman on board, that the ship is in a I , rill „„. therefore, without, an express warranty damage or personal blarm on the part of a ship-own tain an action for injury. Couch V. St- See "Negligence," M 8hip." SEDUCTION. See ant.. •• M teter and - SERVANT. See " Master and Servant. " - r i SHERIFFS Obs. — Actions for breach of duty of tli.' uili,,. ,,f sheriff must be bi the high sheriff, though the under sheriff or bailiff or defaulter. Cameron v. Reynolds, Cowp. 103; u K T. R. 149. The sheriff is liable for the act of I of his warrant. Anon. Lofft, 81; Jonea v. Parchard, 2 E*p R where his officers arrest under color of a J ,/a.S II 568. It has also been considered that he is res made by an acknowledged town agent employed by tit*- und country. Thomas v. Bearce, 5 race, 578. Bee G 2 Camp. 189. So where the debtor paid the d< was held good as against tin- slu-rilf. Greeorj I 25 L. J. Q. B. 33. So also the high bailiff of a county court is liable in the tame « H Le Gros, 34 L. J. Q. B. 91. But the sheriff is not liable for ti officer not within the scope (as knowingly arresting a privile nay v. Burt, 5 Q. B. 381), or having the color of the autl delegated to the latter, and not afterwards sanctioned or recov sheriff; Underhill v. Wilson, 6 Bio I Harper, 7 T. R. 9 ; Paine v. Sheriff of Mid- Jenkins v. < looke, i v R.& M. 99; 1 Chit.Pl. 7th ed. 394. Bale not in mai After the death of a tenant for life of plate, and vo the remainderman may maintain trover an inju against a person to whom the truant for to su life had pawned it without notice of ill" iiin- int- tod right of the pawner. Hoare v. Parker, 3fi >T. R.376. Trover by a landlord for trees M 6 •• cut down during a lease, &c. 1 Saund. 322, II - I. .t 1 note (5) ; l Chit. PI. 7th ed. 152. If it were merely a gratuitous loan the owner might sue .1 I in trover. 1 Chit. PI. 7th ed. 152. When- lui the goods have not been injur, ,1, but defend- Bale to ant lias converted them to his own use by chaser * -ale, &c. to another, &c. this alleg itioo tntes a would seem to be proper ; and see the form, W . ■*• "+■ 596 DECLARATIONS IN TORT. SHERIFFS. Obs. Crowder v. Long, 8 B. & C. 598; Pitcher v. King, 5 Q. B. 758; as where a supersedeas was issued; Brown v. Copley. 2 D. & L. 332: 7 M. & G. 558; or where the officer is the special bailiff of the plaintiff. Alderson v. Daven- port, 13 M. & W. 42. .See Wright v. Child, 35 L. J. Ex. 209; [L. R. 1 Ex. 358. See Hammond v. Koot, 15 Gray. 516, 517.] But the sheriff is liable for the safe custody of the prisoner when arrested by a special bailiff. Tay- lor v. Richardson. 8 T. R. 505. If the execution creditor colludes with the officer to depart from the ordinary course of business the sheriff is not liable. Raphael v. Goodman, 8 Ad. & E. 5G5. It is no part of the sheriff's duty to receive payment from a judgment debtor in his custody, and if his officer does so and neglects to pay it over, the sheriff is not liable. Woods v. Fur- nis, 7 Ex. 363; 21 L. J. Ex. 138. The sheriff is justified in letting a person he has arrested go at large upon his producing a certificate of a deed of arrangement, although the deed of arrangement is invalid; Lloyd v. Harri- son, 35 L. J. Q. B. 153; but not when he has notice or might with reasonable care have known that the plaintiff was not a creditor under the deed. Wil- liams v. Rose, 2 Weekly Notes, 270, Ex. Evidence to establish the connection between the sheriff and his bailiff, so as to affect the former with the acts of the latter, see Koscoe on Ev. 11th ed. 798; 3 Stark, on Ev. 3d ed. 1028. The recital of the fi.fa. in the warrant to levy is sufficient without putting in the writ itself or the judgment. Bessey v. Windham, 6 Q. B. 166. A direction not to execute the writ is equivalent as against another writ coming in in the meantime to a withdrawal altogether. Hunt v. Hooper, 12 M. & W. 664. As to the summary remedy against a sheriff or Ins officer for extorting, on the execution of writs, more than the le<;al fees, see 7 W. 4, and 1 Vict. c. 55; Slater v. Haines, 7 M. & W. 413; 9 Dowl. 221; Phillips v. Lord Canterbury, 11 M. & W. 619; 1 D. & L. 283; poundage on an elegit; Nash v. Allen, 4 Q. B. 784; ditto, where there has been a sale and Tent due, &c. Davies v. Edmunds, 12 M. & W. 31. Summary remedy for extortion of, where the levy is colorable. Ball v. Hutchinson, 2 D. & L. 43. 1. For falsely returning Nulla Bona to a Fieri Facias, after a Seizure and Sale of Groods sufficient to satisfy Plaintiff's Execution, (n) That the plaintiff, on the day of , A. D. , by the judgment of the court of at Westminster, recovered £ against A. B. ; and there- upon the plaintiff, on [#c], sue( l ou * °f the sa ^ \Jf ^ ie ac ^ on oe i n a different court, say "wherein the said judgment was so recovered"] a writ of fen facias \or " a testatum," fyc. according to the fact], directed to the sheriff of •, whereby our lady the queen commanded the said sheriff that, of the goods and chattels of the said E. F. in his the said sheriff's bailiwick, he should cause to be levied £ aforesaid, together with interest for the same at the rate of four per cent, per annum, from the day of , a. d. , from which day the judgment aforesaid was entered up, and that he should have that money, with such interest as aforesaid, before our said lady the queen forth- with [or "on ," as in the writ], to render to the plaintiff; and that the said sheriff should have there and then that writ, which said writ afterwards, and before the deliveVy thereof to the said sheriff on \_fyc.\ aforesaid, was duly indorsed with a direction for the said sheriff to levy [£ , besides sheriff I poundage, officers' fees, costs of levy, and all other incidental expenses {p)], (n) 2 Chit. PI. 7th ed. 562 ; Stubbs v. & L. 722 ; [Bottomley v. Hey ward, 7 H. & Lainson, 1 M. & W. 728 ; Drewe v. Lainson, N. 562.1 11 Ad. & E. 529. See Bevins v. Hulme, 3 (o) Copy indorsement. A sheriff may D. & L. 309, where see also a form where levy the fees allowed by 1 Vict. c. 55, the writ was issued in the County Palatine though not indorsed on the writ. Curtia v. of Lancaster; 15 M. & W. 89; and 3 D. Mayue, 2 Dowl. N. S. 37 DECLARATIONS l.\ rOHT. Mil 1.1 and being so todorsed, wai then deUvered to the , from thence nn.,1 and al and after the time said writ hereinafter mentioned, wai iheriff of .1,.- . executed in due for.,, of law,« by rfrtue of which as such shenfl, seized and took in execution divei saidE. F., of the value of the money bo ind wid, besides poundage, officer.' I penses, (p) directed to be levied ai aforesaid, and then oiU;(g) yet the defendanl had qoI the laid mon any part thereof in the said [lasl mentioned] court of the said writ, as he mighl and oughl to hav« don. Bent of this suit, nor hath the defendant paid such ... to the plaintiff, and the defendanl afterwards, and I of this suit, falsely returned to the -ai.l [last uivmiuii.il writ, tint the said E. F. I, a,] qoI .u,\ goods or chattels in he could cause to be levied tin- damag. a afbn lid, or at by the said writ and the return thereof remaining of rei ord in mentioned] court appears, whereby the plaintiff i- depi obtaining the said moneys so indorsed on the i, and ,. unpaid. 2. For not levying when there was an Opportunity ^ ing Nulla Bona. Proceed as in the last form l<> tin asterisk,"] \ d although th.-re wu t. and whilst the said writ was in force, and before the comn suit, divers goods and chattels of the said E. F. within thi defendant as such sheriff, ami the defendanl as Bucfa shi the moneys so indorsed on the said writ, and a reasonable tin elapsed before the commencement of this Bnit,(f) when notice; yet the defendant did not lew the monej m thereof, but wrongfully neglected ami refused bo t" do, and dori last-mentioned time wrongfully neglected tl. the defendant afterwards and before [^c. " fa! . 1, supra, stating false return, §c.~\. (p) The word "moneys" would imply M '■'. " thi.-, but it is as well inserted. Slade v. ii Bawley, 13 M. & W. 757 ; 2 I). & L. 700. hands I (q) Thi'se words mean not only that then Kii a seizure and sale, but that the Bheriff Bale, i"- L. J C P ill- proceeds in hi- hand- t'M- tin- par- B8I ; W pose of handing them over to the plaintiff. A n v. Lainson, 11 Ad. & E. 529 It" the (r) < irn in i! fchirifF did not sell, though aid.- to do bo, the declaration should he framed accordingly. W. 188; II next form. It i- essential to state cor- B recti v hoio the return is False, Lewi- v. Al- l •• cock; 3 M. & W. 188 ; Wright v. Lainson, i Han I; flD.*L Too. 598 DECLARATIONS IN TORT. SHERIFFS. VARIOUS FORMS AGAINST SHERIFFS FOR NEGLECT OF DUTY, See ante, " Escapes." 3. For falsely returning that the Goods remained in the Plaintiff'* Hands for want of Buyers, after a Seizure. See forms, &c. Pitcher v. King, 9 Ad. & E. 288 ; 5 Q. B. 758 ; Roue v. Ames, 6 M. & W. 747 ; 8 Dowl. 750 ; Wylie v. Birch, 4 Q. B. 566 ; and a form for not selling goods within a reasonable time after seizure, with special damage that the creditor became bankrupt, and thus the plaintiff lost the pro- ceeds of his execution, Gore v. Lloyd, 12 M. & W. 463. See, also, Jacobs v. Humphrey, 2 Cr. & M. 413 ; Aireton v. Davis, 9 Bing. 740 ; Carlile v. Per- kins, 3 Stark. 163. 4. For seizing Goods equal in Value to the Moneys indorsed on the Writ, and levying only a Portion. Slade v. Hawley, 13 M. & W. 757 ; 2 D. & L. 700. 5. For taking Insufficient Bail where the Capias was issued against Defendant in a Wrong Name, (u) and Plea. Brunskill v. Robertson, 9 Ad. & E. 840. 6. For not arresting on the Earliest Opportunity, (x) Brown v. Jarvis, 1 M. & W. 704. [See Randell v. Wheble, 10 Ad. & E. 719.] 7. For an Escape on Mesne Process, (y) That the plaintiff had a cause of action against A. B. to the amount of £20 [and upwards], (z) and the defendant had commenced an action against him for the same, and in due course of law had procured from a judge of the court of , at Westminster, an order directing A. B. to be held to bail for £ ; and in pursuance of such order, the plaintiff sued out of the said court a writ of capias directed to the defendant as sheriff of , whereby [set out writ as in Form 1] ; and the writ was duly indorsed for bail for £ , and was delivered to the defendant to be executed ; and the defendant arrested the said A. B. accordingly, but, without the consent of the plaintiff, and without due cause, allowed the said A. B. to escape without putting in bail as aforesaid, whereby the plaintiff is delayed in recovering his said claim and costs, and is liable to lose the same. (u) As to discharge on ground of copy (y) Form, Rogers v. Jones, 7 B. & C. 86 ; served, varying in name from original writ, [Whitehead v. Reyes, 1 Allen, 350; S. C 3 see Macdonald v. Mortlock, 2 D. & L. 963. Allen, 495.] There must be an allegation (x) See Williams v. Griffith, 3 Ex. 584; of an existing suit at the time of the order. 18 L. J. Ex. 195. For not arresting on final Williams v. Griffiths, 3 Ex. 584; 18 L. J. process, see Hooper v. Lane, 27 L. J. Q. B. Ex. 195; Alexander v. Macaulay, 4 T. B. 75; [6 H. L. Cas. 443; Clifton v. Hooper, 611 ; Barnes v. Reane, 15 Q. B. 75; 19 L.J. 6 Q. B. 468. What constitutes an arrest. Q. B. 309. Only actual damages can be re- Whitehead v. Reyes, 3 Allen, 495, 501 ; Gold covered. Williams v. Mostyn, 4 M. & W. ■j. Bissell, 1 Wend. 215; Emery v. Cheslev, 145. 18 N. H. 198; Field v. Ireland, 21 Ala. 240; (z) See 1 & 2 Vict. c. 110, s. 3, and Chit. Jones v. Jones, 13 Ired. (Law) 448 ; Cooper Arch. Pr. Mesne Process. v. Adams, 2 Blackf. 294.] DECLARATIONS IN TOBT. MI!. 1:1. 8. For an Escape on Fin U Pr Hemming v. Hale, 7 C. 15. \. S. 187 ; 29 I.. J. ( . I' l 27 \| 35 L. J. C. P. 247 ; L.R 1 ('. |-. m, . Bromfield v. J Merry v. Chapman, 11 A-i. ,v I 966; I!,,;,., .11 Dignam v. Bayley, 37 L. .1. <{. \\. 71.] 9. For not returning the Writ, whereby Plaintiff vxu put I I Woodman v. Gist, fi < . *v 1'. 2] 1. 10. For an Excessive Levy and net »• lling for the B \P r ■ ' / ' - Phillips v. Bacon, 9 East, 298. [See GawL I tplin, 2 ] 11. For Negligence in conducting the s,,i, Wright v. Child, 35 L. .1. Ex. 209 ; L ft. 1 I 12. By a Landlord against a Sheriff on 8 At « . ■•. 11. Goods taken in Execution without satisfying ■ ) ■■■ I: Thurgood v. Richardson, 7 Bin- 128 : Andn in <•. Dixon. :; !'. . \ but be careful in using those fornix See Riseley '■• Etyle, 1" M. >v u 11 M. & W. 16; Smallman v. Pollard, 1 D. & I.. 901 ; 8 M. A I Foster v. Cookson, 1 Q. B. 417. (6) 13. For not executing a Writ of Possession <" ! '■ "■ l Reasonable 7'i, Mason v. Paynter, 1 Q. B. 974» 14. For not discharging a Party privileged from Ar Writs which were in the Sheriff's Off -t him, "Watson v. Carroll. 4 M. ,v \\ 15. For refusing to tah B Milne v. Wood. 5 C A P. 587. [15a. For False Imprisonment and to recov s Bail. DeMesnil v. Dakin, L. R 8 Q. B. I (a) Oilier forms, Jackson v. Hill, 10 Ad. according to what & E. 477. Form tor n wrongful discharge <>f sustain* a debtor. Hodges v. Pateraon, 26 L.J. Ea 223. A count may easily be framed from to the mcai form 1, ante. By 5 ft 6 Vict. c, 98, - 31, re, 11 C B "i " if any debtor in execution shall escape out Hemming r». H of custody, the Bheriff, bailiff, or other per- J. C. P 137; M ■on baring the custody of such debtor, shall P. 947 L K. 1 C P be liable only to an action upon the case, for ! damages unstained by the person or persom onli m the • k< it at wh Buil Mich debtor was taken or fii imprisoned, and shall not l>c liable to anj Eiction of debt in consequence of such ape." The jury may assess the dam.: 600 DECLARATIONS IN TORT. SHIPS. 16. By a Sheriff against his Bailiff for refusing to replevy on a Bis' tress for a Poor Rate, (e) Sabourin v. Marshall, 3 B. & Ad. 440. 17. For Extortion. 2 Chit. PI. 7th ed. 635 ; and see form in Usher v. "Walters, 4 Q. B. 553 ; [Liverniore v. Boswell, 4 Mass. 437 ; Moore v. Boswell, 5 Mass. 306.] 18. For taking Plaintiff to Prison on an Arrest within Twenty-four Hours, Plaintiff having consented to be carried to a House of her own Nomination. Silk v. Humfreys, 4 Ad. & E. 959. 19. Against the High Bailiff of a County Court, for negligently selling Goods for less than they were worth. Burton v. Le Gros, 34 L. J. Q. B. 91. 20. By Sheriff against the Execution Creditor, for deceiving him. Childers v. Wooler, 29 L. J. Q. B. 129. SHIPS. Obs. — The owner, as well as the master of a ship, is liable for negligent or unskil- ful navigation. Hugojett v. Montgomery, 2 N. R. 446; Ogle v. Barnes, 8 T. R. 188; Bowcher v. Nordstrom, 1 Taunt. 568; Williams v. Holland, 10 B. 112. [Separate actions cannot be maintained against the master and owner for same cause of action. Priestly v. Fernie, 3 H. & C. 977.] The action is not maintainable unless the injury arose entirely from the fault of the defendant ; if both the plaintiff and defendant were in fault, and the plaintiff's carelessness or unskilfulness partly led to the collision, no action lies. See Vennall v. Garner, 1 Cr. & M. 21 ; Smith v. Dobson, 3 M. & G. 59 ; Vanderplank v. Miller, Moo. & M. 169; Collinson v. Larkins, 3 Taunt. 1 : Luck v. Seward, 4 C. & P. 106 ; Luxford v. Large, 5 C. & P. 421 ; Raisin v. Mitchell, 9 C. & P. 613. But if the plaintiff has not so far contributed to the misfortune by his own negligence or want of ordinary care, that but for such negligence the misfortune could not have happened, and if the defendant could by the exercise of ordinary care and caution have avoided the cor quences of the neglect or carelessness of the plaintiff, the plaintiff is entitled to recover. Smith v. Voss, 26 L. J. Ex. 233 ; 2 H. & N. 97; Tuff v. War- man, 27 L. J. C. P. 322; 2 C. B. N. S. 740; Thompson v. North Eastern Rv. Co. 30 L. J. Q. B. 67; 2 B. & S. 106 ; [Chamberlain v. Ward, 21 How. (U. S.) 548; Kelley v. Thompson, 1 Lowell, 124.] See Contributory Negli- gence, ante, "Negligence," p. 570; Chadwick v. Dublin Packet Co. 6 Ad. & E. 771. By the merchant shipping amendment act, 1862, 25 & 26 Vict. c. 63, ss. 25, 26, Table C in the schedule, certain rules are laid down for preventing col- lision at sea: — Preliminary. Art. 1. In the following rules, every steam ship which is under sail, and not under steam, is to be considered a sailing ship; and every steam ship which is under steam, whether under sail or not, is to be considered a ship under steam. (c) See a form by sheriff against his bailiff, Bowdon v. Hall, 4 Q. B. 840. DECLARATIONS IN TORT, gfl Rules concerning I. Dbs. Art. 2. The lights mentioned In the following ardeli i, ud i carried in all weathers between sunset and Art. 3. Seagoing strain ships, when undi («) At the foremost head, a bright white lighl and unbroken lighl over an arc of the horizon ol fixed as to throw the lighl 10 point* on each ahead to 2 points abafl the beam on either to be visible on a dark oighl with a clear atraos] live miles: (b) On th starboard side, a green light, and unbroken lighl over an arc of the h fixed as i,, throw the lighl from right ahead the Btarboard side, and of nich chai ■with a (dear atmosphere at a distance "i at least t» (c) On the port side, a red light, so constructed broken light over an arc of tin' boriz I L< as to throw the light from right ahead t.. •_' point aide, and of such a character as to be visible mi a dark atmosphere at a distance ■>!' at leasl two mill (d) The said green and red side lights shall be fitted with projecting at least three feet forward from tin- light lights from being -ecu across the bow. Art. 4. Steam ships, when towing other ships shall mast-head lights, vertically, in addition to their sid< guish them from other steam Bhips. Bach of these mast of the same construction and character a- the mast-head 1: Steam ships are required to carry. Art. 5. Sailing ships under weigh, "r being towed, shall carry ■ as steam ships under weigh with the exception of th.- white i which they shall never cany. (<• pr screens, (e) Art. 7. Ships, whether steam ships or Bailing -hip-, when at an steads or fairways, shall, between Bunrise and sunset, • xhibtt w] best seen, but at a height not exceeding twenty feet ah light in a globular lantern of eighl inches in diameter, a: to show a clear uniform and unbroken light, risible all r.. ind ;i. at a distance of at least one mile. Art. 8. Sailing pilot vessels -hall not carry the lights requin vessels, but shall carry a white liiht at the ma-t h.-id. riail horizon, and shall also exhibit a Bare-up fight every tit-. Art. 9. Open fishing boats, and other open boats, shall carry side li'_dit< required for other but -hall, if ti such lLdits. r;u-vy a lantern having a green slide "U the slide on the other Bide; and on the approach of or i tern shall he exhibited in sufficient time to pn i fight shall not be seen on the port -id.-. DOT the red li side. Fishing vessels and open boats, when a: am I net- and stationary, shall exhibit a bright whit.- li Open boats -hall, however, not I Dted from addition, if considered expedient. The Margaret v. The Tuscar, 15 L. (<•) The .Marvel > S. 86. \ 86. A 602 DECLARATIONS IN TORT. SHIPS. Rules concerning Fog Signals. Obs. Art. 10. Whenever there is a fog, whether by day or night, the fo^ signals described below shall be carried, and used, and sounded at least every five minutes, viz. : (a) Steam ships under weigh shall use a steam whistle placed before the fun- nel not less than eight feet from the deck. (6) Sailing ships under weigh shall use a fog horn, (c) Steam ships and sailing ships when not under weigh shall use a bell. Steering and Sailing Rules. Art. 11. If two sailing ships are meeting end-on, or nearly end-on, so as to in- volve risk of collision, the helms of both shall be put to port so that each may pass on the port side of each other. Art. 12. "When two sailing ships are crossing so as to involve risk of collision, then, if they have the wind on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side, except in the case in which the ship with the wind on the port side is close-hauled, and the other ship free, in which case the latter ship shall keep out of the way, but if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward shall keep out of the way of the ship which is to leeward, (f) Art. 13. If two ships under steam are meeting end-on, or nearly end-on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other, (g) Art. 14. If two ships under steam are crossing so as to involve risk of collision, the ship which has the other on her own starboard side, shall keep out of the way of the other, (g) Art. 15. If two ships, one of which is a sailing ship, and the other a steam ship, are proceeding in such directions as to involve risk of collision, the steam ship shall keep out of the way of the other ship. Art. 16. Every steam ship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse; and every steam ship shall, when in a fog, go at a moderate speed. Art. 17. Every vessel overtaking any other vessel shall keep out of the way of the said last-mentioned vessel. Art. 18. Where, by the above rules, one of two ships is to keep out of the way, the other shall keep her course subject to the qualifications contained in the following article: Art. 19. In obeying and construing these rules, due regard must be had to all dangers of navigation; and due regard must also be had to any special cir- cumstances which may exist in any particular case rendering a departure from the above rules necessary in order to avoid immediate danger. (A) Art. 20. Nothing in these rules shall exonerate any ship, or the owner, or mas- ter, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look-out, or of a neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case, (i) By s. 28, it is enacted that " in case any damage to person or property arises from the non-observance by any ship of any regulation made by or in pursu- ance of this act, such damage shall be deemed to have been occasioned by the wilful default of the person in charge of the deck of such ship at the time, unless it is shown to the satisfaction of the court that the circumstances of the case made a departure from the regulation necessary. But the master and owners are only liable for the negligent act of their servants, therefore, where they are compelled by law to take a pilot, he is not a servant (/) On this article see Dean v. Mark, (h) The Great Ship Company v. Sharpies, The Constitution, 2 Moore P. C. C. N. S. 3 Moore P. C. C. N. S. 31 ; and notes (/) 453; The Spring, L. R. 1 Adm. 99. and (g), supra. (g) Onus of proof, that a departure is (i) See The Ida v. The Wasa of Nico- uecessary, lies on the defendants. The Con- laistadt, 15 L. T. N. S. 103. cordia, L. K. 1 Adm. 93. DECLARATIONS IN TORT. SHOOTING. 608 Obs. in the ordinary sense, and they are, therefore, not responsible for hia default Sec t lie Merchant Shipping Act (17 & 18 \'i«t. .-. L04, B. 8 c. G3, ss. 89-41; The Maria, I \V. Huh. 95; Johanna Stoll, l Lush. 812 L. J. P. M. & A. 201. It is in. i enough to prove thai there irai fault oi > ligence on the pilot's part, hut the owner must show thai there was do default upon the part of the master ami eivw, which might have in any dec been conducive to the damage. The I,, mi. I.. R. l P. ('. 626; The V. quez, L. R. I C. P. 494. [On the other hand, if a pilol is injured on board of a vessel by the negligence of one of the seamen, the owners cannot defend on the ground of an implied contracl between owners and the pilot .whom they are compelled to employ thai the pilol shall take the risk at in- i'uryfrom the negligence of his fellow servants. Smith v. Steele, L. K. L0 Q J. 125.] But to exempt the master and owners from liability, the acl complained of must be solely that of the pilot. Hammond v. Rogers, 7 M <■ p. c. c. i Rodrigues v. Mellish, 10 Ex. 110; 24 L. J. Ex. 26; The Carrier Dove, l B. & L. 113. See, also, as to compulsory pilotage lex 6 Geo. t. c. I and the Merchant Shipping Act, 1854, The Hanna, L. R. i Admt & Ecc. 283; and The Tyne Improvement Commissioners v. The General Steam Navi- gation Company, 36 L. J. Q. B. 22; L. R. l (,». B. 65. And ii has also been held that the act causing the damage musl be within the scope of the idiot's duty. The Diana, 1 W. Rob. 135. As to exemption, where one of the ships is foreign, The Vernon, 1 \V. Rob. 316; 17 & 18 Viet. c. 104, s. 527. As to the limitation of the money extent of liability, 25 & 26 Viet. ,-. 68, s. 54, and 17 & 18 Vict. c. 104, s. 506; The Obey, L. R. 1 Adm. L02. As to liability for loss of life occasioned by collision, Glaholm v. Barker. L. R. 1 Ch. App. 223; 35 L. J. Ch. 259. As to register being prima facie evidence of ownership. Hibbs v. Ross, L. R. 1 Q. B. 534; 35 L. J. Q. B. 193. See, generally, Lowndes on the Admiralty Laws of Collisions at Sea. Ante, " Carriers." 1. For negligently navigating a Ship and causing a Collision. That the defendant so negligently managed and directed his ship, that she ran foul of the ship of the plaint ill', whereby the said ship of the plaintiff was sunk, and the cargo of the same lost and injured, and the plaintiff Incurred expense in raising and repairing the said ship and cargo, ami lost the use of the said ship and the freight that he might have earned therefrom. 2. Against the Owner of a Ship for negligently leaving a Hatchway uncovered. Hibbs v. Ross, L. R. 1 Q. B. 531 ; 35 L. J. Q. B. L93. 3. Against the Owner of a Steam Vessel for causing a Dangerous Swell in the Thames, ivhereby the Plaintiff* \',ss,l was swamped. Luxford v. Large, 5 C. & P. 121. SHOOTING. Obs. — The venue is local. See a form for trespass for the purpose of trilling game, and law, Lonsdale r. Rigff, ii Ex. 654; 25 L. J. Ex. 78; Rigs v. Lonsdale, l II. \ X. :•_<;;; ;u; l.j. i; x . 1: „;. - Graham v. Ewart, n Ex. 1.. J. Kx. 42; l H. & X. 550; 26 L. J. Ex. 97; affirmed, Ewart v. Grahai H. L. Cas. 881; 29 L. J. Kx. 88; Bruce v. Belliwell, S II. ,v X. 609; i I I. J. Ex. 297; Jeffrys v. Evans, 34 L. J. C. P. 261. 604 DECLARATIONS IN TORT. SUPPORT. Obs. A person who, on his own land, shoots a pheasant on the land of another, and goes on such land to pick it up. commits a trespass of entering land in pursuit of game within 1 & 2 W. 4, c. 32, s. 30 — the shooting and picking up the bird being one transaction, but it seems doubtful whether entering land for the purpose of picking up dead game is within that act. Osbond v. Meadows, 31 L. J. M. C. 338; [12 C. JB. N. S. 10.] If rabbits be started and killed on the land of another, they are the property of the owner of the land on which they were killed, but there might be a dif- ference if started on the land of A. and killed on that of B. Blades v. Hi<™-s, T12 C. B. N. S. 501;] 31 L. J. C. P. 151; 32 L. J. C. P. 182; 34 L. jfc. g . 286; 11 H. L. Cas. 621. SLANDER. See " Libel and Slander." SLANDER OF TITLE. See " Libel and Slander." STOCK. See ante, " Bank of England," also ante, part 1, p. 246. STOPPAGE IN TRANSITU. Obs. — See post, pleas. See a form of declaration for a wrongful stoppage in transitu, and pleas, Wilmhurst v. Bowker, 7 M. & G. 883. SUPPORT. Obs. — The right to support from adjacent or subjacent soil is a natural right of property apart from any question of negligence. Wyatt v. Harrison, 3 B. & Ad. 871; Humphries v. Broaden, 12 Q. B. 739; 20 L. J. Q. B. 10; Hunt v. Peake, 29 L.J. Ch. 787; [H. R. V. Johns. 705;] Smart v. Morton, 5 El. & Bl. 30; and see Bonomi v. Backhouse, El., Bl. & El. 655; 9 H. L. Cas. 503; Nicklin v. Williams, 23 L. J. Ex. 335; [10 Ex. 259; M'Guire v. Grant, 1 Dutch. 356, 368; Farrand v. Marshall, 19 Barb. 380; S. C. 21 Barb. 409, 415; Foley v. Wyeth, 2 Allen, 131; Napier v. Bulwinkle, 5 Rich. 311, 323; Beard v. Mur- phy, 37 Vt. 101; Lasala v. Holbrook, 4 Paige, 169; Panton v. Holland, 17 John. 92; Howland v. Vincent, 10 Met. 371, 373; Hay v. Cohoes Co. 2 Comst, 159; Radcliff v. Mayor &c. 4 Comst. 195; Richardson v. Vermont Central R. R. Co. 25 Vt. 465; Charless v. Rankin, 22 Missou. 566.] As to how this right may be qualified or abandoned, see Rowbotham v. Wilson, 30 L. J. Q. B. 49; [8 El. & Bl. 123, 152.] But if any additional weight be placed on land, the owner cannot maintain an action if his house fall by reason of the adjacent or subjacent owner dii_ r L r iii'_ r so near that the house fell, unless he did so negligently. Dodd v. Holme. 1 Ad. & E. 493; Wyatt v. Harrison, ubi supra. See Gayford v. Nicholls, !) Ex. 702; [Thurston v. Hancock, 12 Mass. 226; Lasala v. Holbrook, 4 Paige, 169; Richart v. Scott, 7 Watts, 460; Moody v. McClelland, 39 Ala. 45; Foley v. Wyeth, 2 Allen, 131, 133. The owner of two adjoining plots of land sold one to the plaintiff, and the other to the defendant, — the latter under a cov- enant to build according to a certain elevation. Excavations were made by the defendant so as to enable him to carry out the contract, in consequence of which the plaintiff's building fell in. It was held, that the plaintiff had no ground of action. Murchie v. Black, 19 C. B. N. S. 190.] But although the weight upon the land has been increased by buildings, an action will he, unless it be shown that the adjacent land gave way on account of such DECLARATIONS IN TORT. SUPPORT. Obs. increased weight. Hamero. Snowies, Stroyan v. Knowles, 6 II. ft V i:.i; and Bee WysM v. Harrison, ubi supra; [Brown v. Bobins, I ll & N I Hunl r. Peake, II. R. V. Johns. 705.] This right to support may also be acquired, as where bona .. buill that thej rest for support the one upon the other. For mutual support tin:. either, by a presumed grant or a presumed reservation, a righl to such mutual support, which is qoI affected by subsequent subdivision of tin- property on which they were originalh built. Richards v. Rose, 9 Ex. 218; IS L. J. Ex. 3; but see Solomon '•. Vintners' Company, i II. & \. 585: 28 I.. .1 370. So the same right to support may he gained by lapse of time. Partridge <•. Scott, :: M. & \V. 220; Bee Brown v. Robins, 28 I.. .1. Ex. 250; also Rogen Taylor, '_' II. & \. 828. [A man i- not prevented from draining bis own land because it will dimish his neighbor's support by withdrawing the percolating water, if his doing so dc«-s not derogate from the express or implied terms of his own grant. Popplewell i>. Hodkinson, L. R t Ex. 248. See Elliot v. North Eastern Ry. Co. 10 II. L. Cas. 888.] It is a good cause of action thai a aext neighbor conducts himself so carei negligently, and unskilfully, in pulling. down his own house, &c. as to injure thereby his neighbor's house, although the complainanl may not, in respect of the latter house, have acquired any absolute righl to the support of the building pulled down, or the adjoining Boil. See Trowert;. Chadwick, 8 Bin ■. \. I . 334 \ 6 Bing. N. C. 1; [Piercer. Musson, 17 La. An. 889; Panton v. Holland, 17 John. 92; Richartw. Scott, 7 Watts, 460; M'Guire v. Grant, l Dutch. 856, 861; Shrieve v. Stokes, B. Mon. 45:J.] See the curlier cases upon this point, Pey- ton v. Mayor of London, 9 B. & C. 725; particularly, Dodd v. Holme, I Ad. &E.493; Plant w. James, 5 B. & Ad. 791. See a form (sen i in Lloyd v. Wigney, 6 Bing. 489. And it Beems that if the defendant has been guilty of actual negligence, and thereby occasioned the injury, he is liable, although the plaintiff himself did nol use those precautions he oughl to b adopted against such injury. Walter- v. Pfeil, M. & M. 86 !. - Smith <■. Hardest y, 31 Missou. 412.] In order to entitle the owner of land tq BUCCOed in an action against a neighbor for excavating near bis boundary, it is net sary that appreciable damage should have been caused thereby. Smith v. Thakerah, 85 L. J. C. P. 270"; and L. 11. i C. P. 564. The damages should be to the amount of the plaintiff's old house thrown down by the defendai carelessness, and not the whole expense of building a new one. I.ukin p. Godsall, Peake Add. C. 15. See Dodd v. Holme, supra. It i- not settled whether a party about to pull down hi> house is bound to give notice of his intention to his next door neighbor (who has nol acquired a legal right to the support of the house, &c.) if he does not Bhore up hi< neighbor's bom Peyton v. Mayor of London, supra; Massey v. Goyder, i I . & P. 161; ami per Tindal C. J. in Trower v. Chadwick. 8 Bing. N. C. 853. In order to raise this question, the declaration should specially charge the omission to '_ r i\c notice, and the pulling down withoul Bhoring up. See form, 3 Bing. X. C. 837; post, form 3. Sec a lorin of declaration against commissioners of Bowers for undermining the j>laini iff's house by improperly making a Bewer, The Gro- cers' Company v. Donne :; Bing. N. C. 34. Aa to the right to the support of adjoining property, Bee generally, Gale on Easements, by Willi 1. For removing Subjacent Land and depriving the Plaintiff's Land of its support. { I: ) That the plaintiff was possessed of land under which the defendant wto fully excavated and mined, and deprived the plaintiff's land of natural and sufficient Bupport, whereby the plaintiff's land gave way and fell in. [Like counts. Humphries v. Brodgen, 12 Q. B. 740; Smart p. Mono! . El. & 111. 80. (k) Venue local. Sec a form, Adams v. Lloyd, 27 L. J. Ex. 499 ; [3 H. & N. 851.1 606 DECLARATIONS IN TORT. SUPPORT. 2. For taking away the Adjacent and Subjacent Support of the Plain tiff's Land and of the Buildings thereon. ( Venue local.) That the plaintiff was possessed of land with houses and other buildings erected and standing thereon, and was entitled to have the said land, houses, and buildings supported by the land adjacent thereto, and by the soil and minerals under the said land, houses, and buildings of the plaintiff; and the defendant wrongfully dug away and removed the said land adjacent to the said land, houses, and buildings of the plaintiff, and the said soil and min- erals under the same, without leaving proper and sufficient support for the said land, houses, and buildings of the plaintiff; whereby the same sank and gave way, and the said houses and buildings were weakened, cracked, and injured. Like counts. Micklin v. Williams, 10 Ex. 259 ; Rogers v. Taylor, 2 H. & N. 828 ; Richards v. Rose, 9 Ex. 218 ; Stuart v. Morton, 5 El. & Bl. 30 ; Brown v. Robins, 4 H. & N. 186; Richards v. Harper, L. R. 1 Ex. 199. Like counts at the suit of a reversioner. Harris v. Ryding, 5 M. & W. 60 ; Hilton v. Granville, 5 Q. B. 701 ; Roberts v. Haines, 7 El. & Bl. 625 ; Bononi v. Backhouse, EL, Bl. & El. 622 ; Bibby v. Carter, 4 H. & N. 153 ; Hamer v. Knowles, 6H.&N. 454. 3. For taking away from the Plaintiff's House the Support to which it was entitled from the Adjoining Souse. (7) ( Venue local.) That the plaintiff was possessed of a house adjoining a cer- tain other house and certain walls thereunto belonging, and was entitled to support for his said house from the said adjoining house and the said walls ; and the defendant deprived the plaintiff of the said support for his said house from the said adjoining house and the said walls [by wrongfully taking down and removing the last mentioned house and walls without shoring or propping up, or otherwise securing or taking reasonable and proper precautions to sup- port and secure the said house of the plaintiff] ; whereby the said house of the plaintiff fell in and was destroyed, and the goods of the plaintiff then being therein were damaged and broken, and the plaintiff incurred expense in pro- curing another house, and in removing and repairing his said goods, and in removing the ruins of his said house, and in rebuilding the same. Like counts. Langford v. Woods, 7 M. & G. 625 ; Brown v. Windsor, 1 C. & J. 20 ; Hide v. Thornborough, 2 C. & K. 250 ; South Metrop. Cemetery Co. v. Eden, 16 C. B. 42 ; Wyatt v. Harrison, 3 B. & Ad. 871 ; Solomon v. Vintners' Co. 4 H. & N. 585.] (?) Venue local. See a form for injuring tive; see Wyatt v. Harrison, 3 R. & Ad the foundations of plaintiff's house by dig- Dodd v. Holme, 1 Ad. & K. 493; for where R ging mines, &c. Hilton v. Lord Granville, 5 party has not acquired an absolute right ti Q. B. 701. The form in Trower v. Chad- such support for his house by twenty y wick, [3 Bing. N. C. 334; 6 lb. 1,] was held uninterrupted enjoyment thereof, or good on general demurrer. See another legal means, his neighbor may dig into o form, Hide v. Thornborough, 2 C. & Kirw. use his own soil to the extremity thereo 250. Where the declaration does not show without shoring up the house, and is not H that the plaintiffs house was ancient, or that ble (reasonable care and skill beinjr used he had acquired a right to have it supported although such house fall down. See fy; and by the adjoining wall or soil, and merely Partridge v. Scott, 3 M. & W. 220. It ia " charges (without laying negligence, &c. see necessary to aver in the declaration that tl form 1, supra) that defendant dug into the soil plaintiff had aright to have the building and foundation of the adjoining land so near supported by the soil under which the de- the plaintiffs house that it fell, &c. it is defec- fendant worked. DECLARATIONS IN TORT. li 4. Against Persons employed in making a I: #c. in performing the Work*, whereby Plaintiff jured. (m) SURGEON, (m) Against a Surgeon or Apothecary for Negl in hie T the Plaintiff. For that the plaintiff, at the defendant's reqn defendant as a surgeon and apothecary to attend a] the plain til deavor to cure him of an illness under which he then labon And the defendant accepted and entered upon the said ment; yet the defendant conducted himself in an ignorant, negligent manner in that behalf, whereby the plaintiff i greatly injured in his health and constitution, and suffer vented from following his usual employment, and his recovi rj I ill now tvas greatly delayed. TRADE M IRKS. 3bs. — An action may be maintained by a plaintiff irho 1 tomed trade-mark, againBl adefendanl who adopU a mark bling his as to be calculated to deceive and to induce peopli the defendant sells goods made by the plaintiff, tl mark intending to deceive, and selling the poods as <>( 1 1 1 • - facture. Rodgers v. Now-ill, 5 ('. B. 110. c 4 M. & G. 386, note; Manton v. Bales, I I B. 444 - 541; [Lord Westbury in Leather Cloth Co. v. American I 4 De G., J. &S. 137, 139; S. C. 11 II. L. I semblance must be such that ordinary pun caution are likely to be misled. Seixo v. Provezende, I . II 192; [Merrimack Manuf. Co. v. Garner, I E. D. Smith, White Lead Co. v. Masury, 25 Barb. 416; Partridge 622; Shrimpton v. Laight, 18 Beav. 164; Etlelsten I J & S. 185; Leather Cloth Co. v. American Leather < b I II II. I. 535; Loekwood v. Bostwick. _' Daly. 521 j Bi idJi Burnett v. Phalon, 3 Keyes, 594; W . Crowli tetter v. Vowinkle, 1 Dillon, 829 ' D o. Brunt Wotherspoon v. Cunrie, L. It. 5 II. I.. •'>"-; < '•■; ■ I (m) Seo The Grocers' Company r. Donne, ways a rdinai and N ( '. 34; Brine v. Great Western skill. Lanpl [2 B. & s. 402;1 31 L. J. Q. B. ChittyConti II. h i- juffi< i (n) Ante " Fraud," form 4, " Apothecary," plo; (oj This form was used in a case in which for reward to !> 6 defendant had a verdict. Set; post, plea-, plaintiff, and jeon." Forms and law, Slater v. Ba- i •r. -j Wils. 359; Seare v. Prenl st, undertakini: »; Pippin v. Sheppard, il Price, 400; words tl kneke v. Hooper, 7 C. & P. Bl : see Chit, skilfull Contr. Ind. in voc. A medical man i> 400 ible for gross negligence or unskilfnlness, Ston H P%'h lie act gratuitously. II. ; Seidell v. [So< S ackburne, 1 II. Bl. 158. He must al- 608 DECLARATIONS IN TORT. TRADE-MARKS. Obs. 138; Richards v. Williamson, 22 TV. R. 765; 30 L. T. N. S. 746.] And there need not be anv proof of special damage. Rodgers r. Nowill, nbi supra : Blofield v. Payne, 1 B. & Ad. 410. And where a plaintiff agreed with the defendant that he should make bricks for the plaintiff, and the defendant in- fringed the mark of a third person, who moved for an injunction against the plaintiff, who had to pay costs, it was held that there was a good cause of action. Dixon v. Fawcus, 30 L. J. Q. B. 137. As to the principle of the right of property in trade-marks and protection, see The Leather Cloth Co. v. The American Leather Cloth Co. 11 H. L. Cas. 523; 35 L. J. Ch. 53; [S. C. 4 De G.. J. & S. (Am. ed.) 137, and note (1), and cases cited; Rodgers v. Nowill, 3 De G., M. & G. 614, 618, note (1), and cases cited; Burgess ' . Burgess, 3 De G., M. & G. 896, and note (1), and cases cited; 2 Dan. Ch. Pr. (4th Am. ed.) 1648, 1649; Taylor v. Carpenter, 3 Story, 458; Amos- keagManuf. Co. v. Garner, 55 Barb. 151; Congress Spring Co. v. High Rock Spring Co. 45 N. Y. 291 : Gillott v. Esterbrook, 48 JST. Y. 375; Stone- breaker v. Stonebreaker, 33 Md. 252. Property in a trade-mark is the right to an exclusive use of some mark, name, or symbol, in connection with a particular manufacture or vendible commodity. Lord Westbury L. C. in Leather Cloth Co. v. American Leather Cloth Co. 4 De G., J. & S. 137.] As to the fraudulent assumption of the name of a bank, see form in Lawson v. The Bank of London, 18 C. B. 84; 25 L. J. C. P. 188. [So, as to the right to the name of a business, see Colonial Life Ass. Co. v. Home & Colonial Ass. Co. 33 Beav. 548; so, as to the name of a partnership, see Banks v. Gibson, 34 Beav. 566: and see Ainsworth v. Walmsley, L. R. 1 Eq. 518.] See an act to amend the law relating to the fraudulent marking of merchandise, 25 & 26 Vict. c. 88; ante, " Warranty," Obs. 259. [A recent act of Con- Eess provides for the registration and protection of trade-marks. Rev. Sts. . S. tit. IX. c. 2, p. 963 et seq. They are protected by statutes of Massa- chusetts. Genl. Sts. c. 56, &c. Parties are punished for forging or counter- feiting them under Genl. Sts. Mass. c. 161, $ 55.1 As to restraining the de- 1 T fendant in the common law courts, ante, " Injunction." 1. For infringing the Plaintiff's Trade-mark and selling Goods marked therewith, (p) For that the plaintiff carried on business as [a shot belt and powder flask] manufacturer, and sold for profit [shot belt and powder flasks], which he was accustomed to mark [describe the mark'], in order to denote that they were manufactured by him, and in order to distinguish them from the like articles manufactured by other persons ; and the plaintiff enjoyed great reputation with the public, on account of the good quality of the said articles, and made great gains by the sale thereof. And the defendant wrongfully and fraud- ulently, and against the will, and without the consent of the plaintiff, made great quantities of the said articles, and caused them to be marked with the said mark of the plaintiff aforesaid, in imitation of the said mark so made and used by the plaintiff as aforesaid ; and in order to denote that the said articles were of the manufacture of the plaintiff. And the defendant wrongfully and fraudulently sold the said articles so made and marked, as and for articles of the manufacture of the plaintiff, whereby the plaintiff was prevented from selling a great quantity of the said articles manufactured by himself, and was injured in his reputation in his said business, by reason of the said articles manufactured and sold by the defendant, being of inferior quality to those manufactured by the plaintiff. [Add claim for injunction, as ante, 531.] (p) Bykes v. Svkes, 3 B. & C. 541 ; [Bio- Salmon, 2 M. & G. 385 ; Rodgers v. Nowill feld v. Payne, 4 B. & Ad. 410; Crawshay 6 C. B. 109.] j. Thompson, 4 M. & G. 357 ; Morison v. DECLARATIONS IN TORT. TBESP.A 2. For imitating the Labels which Plaintiff put on th R his Thread for Sale was wownd. < 7 ) See last edition of this work, p. 556. TRESPASS. Qua. — See, in general, Vin. Abr. and Bac. Ahr. Com. Iff;, tit. IV In trespass, for an injury to the person at personal property, th< tory, except in certain actions against justices, constable cting in public capacity, &c See, as to il 1 < hit. PI. 7th ed. In trespass to realty the venue is local, and by R. 18, T. T. 1858, " In actions for trespass to land, the close or place in which, &c. musl be 'I I in the declaration by name, or abuttals, or other description, in failuri whereof the plaintiff may be ordered to amend, with costs, or give such particulars a< the court or a judge may think reasonable." Two abuttals are in general suffi- cient, North v. [ngamells, 9 M. >v W. 251, provided they are correct. Web- ber v. Richards, 1 Q. B. 439. So the description of a field by name. Brown- low v. Tomlinson, 1 M. & G. 484. Bow to describe a party wall, Bee Morley v. M'Dcrmott, 8 Ad. & E. 138. If there be any ambiguity in the description defendant should apply to a judge to compel the plaintiff to rectify it. North v. Ingamells, ubisupra ; [1 Chitty PI. 390, 391, and notes.] The object of the rule was the prevention of the necessity for a new assignment by the plaintiff giving a particular description of the locus in quo, upon a plea of liberum tenementum. See 1 Saund. 299, b, c, note (G). It will be observed that the description of the close or place may be either by rtarm . or or other description. It is not correct to describe a dose as alnittin_ r •• tow; instead of "on" another close, &c; a demurrer for the uncertainty would hold good; but if, instead of demurring, the defendant plead libt ru •■ ■ turn, this mode of description could not be impeached. Lempriere .Hum- phrey, 3 Ad. & E. 181; Banks ». Angell, 7 Ad. & E. 846. " The words abutting towards are perfect nonsense, the place mentioned might !»• thirty miles from the locus in quo: abutting 'upon' would be a different thing." Per Patteson J. lb. Abuttal on " A. or B." Lethbridge r. Win 49. Abuttals are not construed with great strictness. [1 Chit note (6)]. Thus Heath J. in Roberts v. Earr, I Taunt, ud, that it premises be described as abutting on a house to the east, "n may be north or southeast; and it suffices to describe correctly that part of the close in which the trespass occurred. Bassett v. Mitchell, 2 B. & A. I. 99. It the plain- tiff give an accurate description of his close byname or abuttals, he is safe, and need not new assign on a plea of liberum tenementum, although the de- fendant happen to have another close in the parish with a similar nam' abuttals. Cocker v. Crompton, 1 B. & C. 489; Cooke v. J 9 1 »• & R. 495; Lempriere/'. Humphrey, ubisupra. [See Providence v. A. lam-. 10 R. I. 184, 190.] In Walford v. Anthony, 8 Bing. 75, the declaration stated tl defendants, A. and B., broke a close of the plaintiff abutting on a closi fendants, but it abutted on a close of the defendant A. only: held an ambi- guity, and not a variance. Two abuttals are in general sufficient; it" there be any real ambiguity the defendant may apply to a judge on affidavit North v. Ingamells. 9 M. & W. 249. Where the plaintit; is mil '• it seems the proper course for the defendant ls to trav< ree his pom Bsion • I the close, see Patteson J. Lempriere a. Humphrey. Where tl •■'■"■'- described as abutting on five places landwards, and seawards on the Bea, and (o) See other forms and law, Sykes v. the imitation. Singleton r. Boll Sykes, 3 B. & C. 541 ; Blofield v. Payne, t 293; Delondre v. Shaw, a Sim. 237. B. & Ad. 410 ; Crawshay v. Thompson, 4 M. the principle on which equity ml & G. 357. For makim- counterfeit mdi- prevent the use of trade-marks, Croft v. cines to imitate plaintiff's. Morison v. 7 Beav. B4; a ' , Oba., where the itatosei Salmon, 8 M. & G. 385. Who to sue for will be found referred to. vou ii. 39 G10 DECLARATIONS IN TORT. TRESPASS. was really in contact landwards with one only of those places, it was held that thi> waa a substantial misdescription. Webber v. Richards, l ( v >. B 439. A Btrip of ground recently added to a 6eld adjoining a highway may be de- ibed by the name of the field. Brownlow v. Tomlinson, l M. & G. 484. Bow to describe the abuttals of a party wall. Murley v M'Dermott, 8 Ad. & E. 138. In Bowell i?.Thomas, 7 C. & P. 342. Coleridge J. allowed an amendment of the record at the trial by substituting " Moor Hill" for 14 Clover Hill:' see, further, .'! Harr. Ind. Trespass. Though trespasses in several closes be laid, plaintiff may recover as to one only. Phythlan v. White, l M. & W. 216. I. TO THE PERSON. Obs. — In main commencing an action against a justice, constable, cus- toms nr excise officer, public company, &e. it is necessary, by statute, to give the defendant a written notice that such action will he brought. See the form, law. Sic. post, pleas, " Notice of Action." A- to the costs iii trespass, by 3 & 4 Viet. c. 24, s. 2, "If the plaintiff in any action of trespass, or trespass on the case, shall recover by the verdict of a jury less damages than forty shillings, such plaintiff shall no1 he entitled to recover or obtain from the defendant in respecl of such verdict any costs whatever, whether it shall lie given upon any issue Or Issues tried or judgment shall have passed by default, unless the judge or presiding officer before whom such verdict shall be obtained shall immediately afterwards, that is, within a reasonable time (Thompson r. Gibson, 8 M. \ W. 281; Jone- <■. Williams, 13 M. & W. t20; 14 L. J. Ex. 76). certify on the back of the record, or on the writ of trial, or writ of inquiry, that the action was really brought to try aright besides the mere righl to recover damages for the trespass or griev- ance, for which the action shall have been brought, or that 'he trespass or grievance in respect of which the action was brought was wilful and mali- cious." This statute does not apply to a demurrer; Poole v. (iranthain, 2 Dowl. N. S. 622; or to a writ of inquiry thereon. Tavlor o. Rolfe, 5 Q. B. 337. And by s. 3, where a trespass to realty has been committed after notice not to trespass, and the judge refuses to certify to give the plaintiff his costs under the above statute, it would seem that the plaintiff's course would be to enter a suggestion on the record. Daw v. Hole, 15 L. J. Q. B. 32; Sherwin v. Swindall, 12 M. cV W. 783; 1 C. & K. 402; 1 D. & L. 999. And see Bourne v. Alcock, 4 Q. B. 621; Bowyer v. Cook, 4 C. B. 236. And by 23 & 24 Vict. c. 126, s. 34, "When the plaintiff in any action for an alleged wrong in any of the superior courts recovers by the verdict of a jury less than five pounds, he shall not be entitled to recover or obtain from the defendant any costs whatever in respect of such verdict, whether given upon any issue or issues tried, or judgment passed by default, in ca.-e the judge or presiding officer before whom such verdict is obtained shall immediately after certify on the back of the record, or on the writ of trial, or writ of inquiry, thai the action was not really broughl to try a righl besides the mere tight to recover damages, and that the trespass or grievance in respecl of which the action was brought was not wilful and malicious, and that the action was not fit to be brought." And now by the county courts act, 1867, 30 & 31 Vict. c. 1 12, s. 5, " If any action commenced after the passing of this act (lsi Jan. 1868) in any of her majesty's superior courts of record the plaintiff shall recover a sum not exceeding £20 if the action is founded on contract, or £10 if founded on tort, whether by verdict, judgmenl by default, or on demurrer, or otherwise, he shall not be entitled to any costs of suit, unless the judge certify on the record thai tin-re was sufficient reason for bringing such action in such supe- rior court, or unless the court or a judge at chambers shall, by rule or order, •allow such cost-. ' And by s. 29, " Where any action or suit shall he brought in any other court than the Buperior courts of law, which could have been brought in a county court, and the verdid recovered is for a less sum than £10, the plaintiff shall not recover from the defendant a greater amount of costs than he would have DECLARATIONS IX TORT. TRF.Si'AS 'ill Obs. been allowed if the acti >r -nit had been bronght In such county court, un- less the judge shall certify thai the acti< r Buil wat a lit one in Bucb other court ." Where there are several defendants in trespass, it one obtain entitled to his costs, whether he pleaded alone or jointly with the • less the judge certify that there was reasonable ant; S s i W. i, c. 12, s. 32; calculation of Bucb Jones, 2 Cr., M. & R. 338; Starling v. Cozens, 2 Cr., M \ R. See, in Li'fiici-al. Lac. Al». Assault; Com Dig. Battery; Burn's J. l Selw. X. P. 27; 3 I'.l. Com. 120. i. An assault is an a lence to 'I" a person some bodily harm, as by holding up a fist, striking another with a stick which does not touch the Latter, or throwing anythin ■ a person which misses him, or by anj similar art of inchoate violence, -I. ing an intention to 'I" injury, and the aggressor being within such a dial from tlu' party assaulted that the intention might possibl) be executed. [United States v Hand, 2 Wash. 135; People v. 5 v. Tompkins, l Baldw. 571, 600; Etichels v. State, i Sne Myers, 19 Iowa, 517; State v. Malcolm, > s Iowa, 113; State v. Hampton, N. Car. 13; State ,-. Davis, l [red. (Law) 125; Stan- v. Sims, 3 Strobh. I St»te v. Morgan, 3 fred. (Law) 186; Barnes v. .Martin. L5 Wise. 240 - v. Davis, I [red. (Law) 125; United States v. Ortega, 4 Wash. 5 quo animo is materia! in the case "f an assault, and, therefore, where a party halt' drew his sword, but said, "if it were QOt time I would run voti through the body," it was held there was no assault, the words negativing intention to do violence. Tuberville v. Savage, 1 Mod. l;. :;: Bac. Ab. sault, A.; Blake v. Laniard, 9 C. & P. 626; Reg. v. St. George, P 483; [Commonwealth v. Eyre, 1 Serg. & R.347; State v. Crow. 1 [red | Law ) 375; Lawsonv. State, 30 Ala. l4;.Woodruff v. W Iruff, 22 Geo United States v. Myers, l Cranch C. C. 310.] The riding after a person and obliging him to run away into a garden, to avoid being beaten, is an sault. Morton v. Shoppee. 3 C. & J'. 373. [One, who was engaged in an angry altercation with another, aimed a gun at him in an excited and 1 1n • ening manner, and snapped it twice. The ;run was not in tart loaded, but this was not known to the person at whom it was aimed This was held to be an assault. Beach v. Hancock, 27 X. II. 223; State v. Shepard, 1" Iowa. 126; State v. Cherry, 11 Ired. (Law) 475. See, further, as to assault with a gun, Higginhotham v. State, 23 Texas, 574; State v. Epperson, 27 Miss 255; State v. Myerfield, Phill. (N. C.) Law. L08; United States v. Kierman, 3 Cranch C. C. 435.] Mere words of abuse and threats do no itute an assault. [Smith v. State. 39 Miss. 521; State v. Mooney, Phill. I \ C.) Law. 434.] In Stephens/'. Myers, 4 C & P. 349, Tindal C. J. said, "It is art every threat, when there is actually no personal violence, that COI an assault, there must in all cases be the means of carrying the threat into The question is, whether the defendant wasadi at the time in a threat- ening attitude to strike the chairman, so that his blow would have almost im- mediately reached the chairman if he had not been Stopped, then, though he was not near enough at the time to have struck him. yet it he were advanc- ing with that intent, 1 think it amounts to an assault in law. If he W( :■ advancing, that within a second or two of time he would have reached the plaintiff, it seems to me an assault in law." 2. A batter;/ is an unlawful touching another bj the aggressor himself with his hand or any instrument, or by hi- servant by his command, or by any - stance put or continued in motion by him. 1 Chit. <■ P. 87. S lins v. Till. 8 M. & W. 28; 6 Dowl. L59; [Respublica p. De Longchamps, I Dall. 114; State, i'. Davis, l Hill, 46; Johnson v. State, 17 Texas, 515; D tille v. Oliver, 2 N. J. (Law) 880.] Even throwing water upon a party amounts to a battery. Pursell v. Horn. 8 Ad. & E. 602. It the injn from inevitable or unavoidable accident or necessity, and there be no want of care, no action lies: as if a horse being frightened, run away with the rider and hurt the plaintiff or the injury arise from the accidental exp gun, or in cutting wood with an axe, &c. Wakeman v, Robinson, t B But the act neeofnot be wilful to maintain the action, nor is the d( violence material. Leame v. Bray, 3 East, 602; Lac Ab. ftc 012 DECLARATIONS IX TORT. TRESPASS. Obp. [Welch v. Durand, 36 Conn. 182.] But to constitute an assault and batterj the act complained of must be done with a hostile intent. Merely laving a hand on a man to callhis attention to something is not an assaull and battery. ward . Baddeley, I EL & X. 47^: 28 L. J." Ex. 200. Bruises are where tin' skin i- nut broken. 3. A insists in giving another a cut or even a scratch, opening the it G. 1'. 38 ; or breaking the skin. Moriarty v. Brooks, 6 C. & 1'. 4. A mayhem is defined to be the deprivation of a member proper for defence in fight, and which are not only an arm, leg, finger, eye, and a fore tooth, but ue others : Inn not as it has been said a jaw tooth, or the ear, or a nose, because they have been supposed to be of no use in fighting. 3 Bl. Com. 121. 1. Count for Assault, Battery, and Wounding. (?•) For that the defendant assaulted and beat [and wounded] the plaintiff, (s) whereby he inclined expense in obtaining medical and other assistance, and prevented from carrying on his necessary business, and had to enrploy and pay for assistance to enable him to do so. 2. Count against Husband and Wife for an Assault, $c. by the Wife. See commence mi n >. ante 1 1, Form 28.] That the defendant A. assaulted and beat the plaintiff, whereby \as in Form 1]. 3. By a Jlusbawl if ml Wife for an Assault, §c. on the Wife, (t) Commence as ante, 14, Form 27. That the defendant assaulted and beat the said B., whereby she became sick and ill, and suffered great pain for a long (r) Upon one count for one assault, no the violence. Frantz v. Leahart, 56 Penn. second assault can be proved. See 1 Saund. St. 365; Little v. Tingle, 26 Ind. 168; 299, note (6) ; Stante v. Prickett, 1 Camp. United States v. Eickett, 1 Cranch C. C. 473. 164. All who direct or order the commission (s) Only so much of statement of special of a trespass, or assist upon the occasion are damage should be inserted as can be proved, in general liable as principals, though they but if the plaintiff prove only part the de- may not be benefited by the act. 1 Chitty fendant cannot have the verdict entered for PI. 90, and cases cited in note (m) ; Berry v. him as to the residue. Myers v. Goodchild, Fletcher, 1 Dillon, 67.] 8 C. & P. 313. The plaintiff can recover for (t) By s. 40 of the common law proced- expenses incurred though not paid. See are act, 1852 (15 & 16 Vict. s. 76), it is pro- Richardson v. Chasen, 10 Q. B. 756 ; Pritch- vided that " in any action brought by a man ett v. Boevey, 1 Cr. & M. 775. Damages and his wife for an injury done to the wife, naturally arising from the act complained in respect of which she is necessarily joined rid stated may be proved; Bull. N. P. as co-plaintiff, it shall be lawful for the hus- 89; Holt, 699; 1 Stark. R. 98 ; 1 Ch. PI. band to add thereto claims in his own right, Ind. "Damages;" but not damages for and separate action- brought in respect of incurred in setting aside a warrant of such claims may be consolidated if the court attorney and subsequent proceedings, under or a judge shall think fit; provided that, in which ih -es were committed. Hollo- the case of the death of either plaintiff, such way v. Turner, 6 Q. B. 928. Damages must suit, so far only as relates to the causes of be a- jainst all the defendants equally action, if any, which do not survive, shall -t whom there is a verdict. Elliott v. abate." Damages may be recovered in the n, 1 C. B. 18. Plaintiff may be called same action in respect of injuries to the hus- on to elect against which of the defendants band alone, and in respect of injuries to the he will go on at the close of his case. Davis wife. As to consolidating, separate actions v. Moseley, 1 Car. & K. 710; Howard v. of this sort, see Hempstead v. Phoenix Gas Newton. 5 M. & Bob. 509, but this is in the Co. [3 H. & C. 745.] Itwould seem that this discretion of the judge. White v. Hill, 2 section would not imply to actions of con- ]). & L. 537 ; Sewell v. Campion, 6 Ad. & tract, e.g. for goods sold to the wife before E. 407. [One who is present at and en- marriage. France v. White, 1 M. & G. 731 ; courages the commission of an assault and Nurse v. Wills, 4 B. & A. 739 ; 1 Ad. & E. battery, may be held liable as principal, al- 65 ; Dengate v. Gardiner, 4 M. & W. 5. though he does not take any active part in DECLARATIONS IX rORT. 1 1 : 1 61;] time. And the plaintiff A. also sues the defendant for ilia'. 1. grievances in the first counl mentioned, the plaintiff A. losl I i >:I ],[ wife for ;i long time, ami incurred expenses in medical ance to cure her: and the plaintiffs claim, under the first count, £ ; and tht) plaintiff A. claims, under the second count, 1* . [3a. Count by a Woman for an Assault, charging a Raj , Wellocku. Constantine, -' II. & C 1 16.] 4. For driving a Carriage -, i) That the defendant drove a carriage, in which the defendanl was, again carriage of the plaintiff, in which the plaintiff was. ami there ly dam- aged the same, whereby [as in Form 1]. 5. For debauching Plaintiff's Daughter, (x) IMPRISOXMKVr. Obs. — What shall he deemed a Ealse imprisonment, see 1 Chit. G. 1'. 17: :; Siark. Ev. 111:3, 3d ed.; 2 Selw. N. P. tit. Imprisonment; 8 I'.!. Com. 138. Bare words do not in general amounl to an impris tent. There must be soini' act whereby the plaintiff was deprived of lii- i »me portion of time, however short ; there must !><• a laving hold of the ] or some actual restraint or submission without force; and in this i actual laying on the hand is no1 iry. 3 Stark. E I. 111.'. It" an officer or other person say, " You are my prisoner, &c." <>i- -tat.- that he holds a warrant, and that the party must accompany him, and he submit, in either case there is a sufficient imprisonment, lb. and I; Bull. P. G2; Pocock v. Moore, Ely. & M. 321; Chinn v. Mori Bridgett v. Coynev. 1 M. & Ry. --Ml. Where, upon a m being shown to the plaintiff, he" voluntarily ami without commilsi< ded the constable, held no imprisonment. Arrowsmith ». Mesurii And it is not enough merely to show that the defendan stood before the plaintiff and said, " Von cannot go away till th( comes," if it appear that he relinqui hed that attitu part of the oilice befoiv the plaintiff had made any attempt to depai v. Parsons, 6 C & P. 504; hut if a partj goes with another who have authority to arrest him, not voluntarily, hut under the beli other had the power to compel, thai Ls aD arrest; Wood o. i 774; and thai is a question of facl for the jury. Ih. [As to what i statutes an arrest, sec cases cited, ant . 598, note (.<:)•] If a man direct a policeman to take a party into custody, the action wilt Wheeler v. Whitino-, 9 C. & P. 262; hut if he merelj the p..!!,-, .man toactashe i the actionwill not lie.ui put the law in motion without reasonable and probable cause. Hopki P. i!7;); Barker v. Rollinson, I Cr. & M. 330; Grinham v. Willey, Ex. 242; 4 II. & N. 496. An imprisonment includes a,, assault; but batten,. See Stark. &c. supra ; Selw. X. P. 8th -1. 905. 1 he f. tion of -a party in the street against hi- "ill is an imprisonment C J 22 V-' fob 10, pi. 105; hut not the preventing his going in ular direction; Bird v. Jones, 7 Q. B. 742; 15 L. -I Q. B. 8 Wright v. Wilson, l Ld. Ray. 739; Jonea v. Wyhe, I v . fifabel, 9 ( . & 1". 474. Trespass is the proper remedy for an il i the previous imprisonment was lawful. M (u) See a form, Lcame v. I East, act of postilion. M'LaugbJ 393. See Wakcman v Bobinson, 1 B.213; i: i M. [Hall v. Feamley, 3 Q. B. 919.] Bvidem (*) £ to fix defendant \\ it h having sanctioned the 614 DECLABATIONS IX TORT. TRESPASS. Ons. B. 381. Imprisonment by military force abroad. Glynn v. Houston, 2 M \ Q When mag are liable, see Harr. 1ml tit. Trespass; Rose. 1. . Tresp is made under process, which i< afterwards Bet aside for irregu- larity, both the attorney and the party who put it in force is liable to an action. Codrington v. Lloyd, 8 Ad. & E. 449 ; Jarmain v. Hooper, 6 M. & ; ( llel . E\ ster, 2 H. & X. 356 : 26 L. J. Kx. 412. [('.. For Assault and False Imprisonment "it a Charge of Felony. That the defendant assaulted the plaintiff, and gave him into custody to a policeman upon a false charge, then made by the defendant, that the plaintiff had committed a felony, and compelled him to go to a police station, and there caused him to be imprisoned, and to be kept in prison for a long time, until he was brought before a police magistrate upon the said charge, whereby (y) the plain tiff suffered great pain in body and mind, and was exposed and injured in his credit and circumstances, and was prevented from carrying on his business, and from providing for his family by his personal care and attention, and in- curred expense in obtaining his liberation from the said imprisonment. 6a. Another Form. And the plaintiff says the defendant made an assault upon him, and struck him on his head, and kept him imprisoned for the space of one day.] 7. Against a Railway Company for imprisoning Plaintiff. Chilton v. London & Croydon Ry. Co. 1G M. & W. 212; Manning v. Eastern Counties Ry. Co. 12 M. & W. 237. 8. For causing Plaintiff to be confined in a Lunatic Asylum, (z) Fletcher v. Fletcher, [1 El. & El. 420 ; In re Oakes, 5 Law Rep. 122 ; Elliot v. Allen, 1 C. B. 18.] II. PERSONALTY. Ob.s. — To maintain trespass de bonis asportatis, the goods must have been in the actual or constructive possession of the plaintiff at the time of the injury- Per Lord Abinger, Taylor v. Rowan, 7 C. & P. 74 ; Hurrell v. Ellis, 2 C. B. 295. See Nelson v. Cherrill, 8 B. 31G. The property in goods is sufficient withoul actual possession. Smith v. Milles, 1 T. R. 480 ; Thomas v. Phil- lips, 7 ('. & 1'. 573 : Lotan v. Cross, 2 Camp. 464. See Turner v. Hard* tie, 31 L. J. C. P. 193 ; [S. C; 11 C. B. X. S. 683 ; 1 Chitty PI. 188-190, and notes, and cases cited.] But the merely locking goods up, de- prive plaintiff of access to them, is not sufficient to enable him to maintain an action of trespass. Hartley v. Moxham, 1 Cr. & M. 504; 3 Q. B. 701. b lies for taking privileged g I- as a distress. Nargetl v. Nias, 28 L. J. Q. B. 143 ; i l El. & Bl. 439.] (y) A remand being the act of the magis- N. 496. Charging handcuffing. Wright v. annot be recovered in Court, 4 B. & C. 596. Count against a jus- thisaction; otherwise in an action lor ma- fcice of the peace for false imprisonment. ution. Lurk v. Ashton, 12 <,>. Groome ». Forrester, 5 M. & S. 314; L B -71 : Boltum v. Lotun,6 Car. & P. 726. v. Jones, 3 B. & C. 409; Davis .Capper, in for imprisonment for false pre- 1" II. & I '• 28 ; < lave v. Mountain, 1 M. & G. v. Biddulph, 3 M. & G. 257 ; Mills v. Collett, 6 Bing. 85d 390. [For other foi ! adtr.Crad- (=) [Scott v. Wakem, 3 Foe Finl.328; , 27 L. J. Ex. 314 ; Huntley v. Simson, Anderdon v. Burrows, 2 C. & P. 210 ; Look •j 11. & N. 600; Grinham v. Willey, 4 II. & v. Dean, L08 Mass. 116.] DECLARATIONS IX TORT. TRESP \ 61;j Obs. Other forms for chasing cattle, shooting dog, For abusing a distress, and putting il in a muddy pom 8 Ad. & E. .".17. By ;; & i W. 1, c. 1-', s. 29, the jury may give dai in the aatun ol in- terest. 1. It, /;>.,!/',- . [sjmrtatis. < a I Tliat the defendant seized and took the goods of the plaintiff, th i [describe them], and carried awaj and injured am I disposed of them to his own use. 2. For cutting a Mope, wherrhg Plaintiff's Boat was driven on SI and damaged. That the defendant cut a rope of the plaintiff, with which a boat of the plaintiff was fastened and secured to the shore, whereby the - ; • i< I boal floated and was driven against the shore, and was damaged and Bpoiled, and the plaintiff incurred great expense in and about the getting the Baid boal off the said shore, and in repairing and mending the said boat, and was deprived of the use of the said boat for a long time, and of the profits which he would otherwise have acquired from the use of the said boat. 3. For removing a Tombstone and erasing the Inscription. Spooner v. Brewster, 3 Bing. L36. 4. For talcing and impounding Cattle in an Improper Pla Bignell v. Clarke, 29 L. J. Ex. 257 ; [S. C. 5 II. & N. I ley, 2 Wils. 313 ; Wilder v. Speer, 8 Ad. & E. 547.] REALTY. Obs. — An unwarrantable entry on the land of another is a trespass, for which an action will lie. Selw. N. P. tit. Trespass. The action is a pi action, and possession in the plaintiff is prima facit sufficient against a wro doer, even though the possession be only constructive. Topham v. I Bin<>\ 516; Graham v. Peat, i East, 246. See Jacks &B1. 8 ; 27 L. J. Q. B. 37 ; [1 Chitty PI. 195, and notes.] But the act will not lie against a person dispossessed by a tr< spass. Browne v. I 1 12 Ad. & E. 624 ; [1 Chitty PI. L96, L97, and notes.] An heir I ntry cannot maintain this action, Eor he has not ; i. Com. Dig I pass, B. o. The owner of land on whirl, a Btranger builds a pull it down and eject him. Burling v. Bead, M Q. B. L. J. Q. B 291. The venue is local. 1. For Trespass to Land. (6) That the defendant broke and entered certain land of the plaintiff, called (a) See a form, Brewer v. Dew, 11 M. & ante, Obs. If any special da W 625; 12 L J Ex.448. See form by an beset out. The measure ol tl administrator, Tharpe v. Stallw I. I D. actually done, nol the ai L. 24. By an executor, for injury to real of money it would tak nroperr testator, Lockin v. Patter- Jones G lay, 8 M. u Son; 1 C. & K. 271 ; and see 3 & 4 W. 4, W. 736 ; 1 Dowl. S 3 and in lb c. 42, s. 2 ; Powell v. Rees, 7 Ad. & E. 426. chattels, the value of them at the i lb) This form is riven by the common injury. Martin v. P M. * w . law procedure act, 1852 (15 & 16 Vict. Wild v. I c. 76), sch. B, 25. The venue is local, - C16 DECLARATIONS IX TORT. TRESPASS. the " Big Field," (c) and depastured the same with cattle, and continued there a long time, and injured th< ea and gates thereof, and cut down the trees and underwood, and dug holes and pits therein, (d) j La. Another Farm far Trespass to Land. For that the defendant, on [4' c -]' an( ^ °" other days and times between that day and the day of the purchase of this writ, (e) broke and eutered the plain- tiff's close, situated in [fyc. ; describe it, and state damage]. lb. Another Form. And the plaintiff says the defendant forcibly entered the plaintiff's close [descriliiiii/ it] and ploughed up the soil [t" allegation of special (f) irts v. Taylor, 3 D. & damage, thai the goods were seized under an L. 1 ; 1 C. B. 117. Form for erecting a unfounded claim for a debt, whereby plain- building on plaintiff 's wall, whereby the light tiff's customers thought him insolvent, and was obstructed. Wells v. Ldy, 2*Cr., M. & his lodgers left the house. Brewer v. Day, 11 R.128. B ecutor.ante. Form for pull- M.&W.625; 1D.&L.383. ing down a house while the plaintiff 's family (i) This conversion is only aggravation, within; Perry v. Fitzhowe, 1 5 L.J. Q. and, therefore, must be newly assigned if B. 239 ; thai circumstances may destroy a necessary. Pratt o. Pratt, 17 L. J. Ex. 299 ; right to pull the house down, which might f. D. & L. 20. So, also, a forcible entrv othi ist B>. Davison v. Wilson, 11 Q. B. 890; 17 L. J (g) Lane v. Dixon, 3 C. B. 776; 16 L. J. Q. B. 197. DECLARATIONS IX TOBT. TRESPASS. ''.IT the goods may be omitted, and a substantive count for thai i « Trover."] [Count for a trespass iii breaking and entering the plaintiff' Lane v. Dixon, 3 C. B. 776. For a trespass in entering the plaintiff't h and continuing therein, and hindering his business. Mayh i^ Bl. 347 ; Percival v. Stamp, 9 Ex. L67. For entering the plaintiff' to search for goods which the defendant charged the plaintiff with havin Bracegirdle v. Orford, - M. & S. 77. For breaking and entering the plain- tiffs house and pulling it down whilst he and his family wen within. P< v. Fitzhowe, 8 < v >. B. 757 ; Burling v. Read, li Q. !'>. 904; Jonet v. J 1 II. & C 1. By one tenant in common against his co-tenant, for <> trespass in destroying the property. Creswell '•. I ledges, 1 II. & C. '121.] 3. Trespass to a Iii The Duke of Beaufort v. Vivian, 21 L. J. Ex. 204 ; [7 Ex. 580. S< e Med- way Navigation Co. v. Earl of Romney, 9 C. B. N. S. 375. Conn! for breaking and entering a landing-stage moored to a wharj river. Eastern Counties Ry. Co. v. Dorling, 5 ('. 15. X. S. 821. F pass to a bridge. Harrison v. Parker. 6 East, L5 1. For trespass on the shore with bathing machines. Blundell v. Catterall, 5 B. & Aid. 268 ; Mace v. Phil 15 C.B. N. S. 600.] 4. Trespass to a Party Wall. Stedman v. Smith, 26 L. J. Q. B. 314 ; [8 El. & Bl. 1 ; see Cubitt v. Por- ter, 8 B. & C. 257 ; Murly v. McDermott, 8 Ad. & E. 138.] 5. Declaration for an Expulsion. That the defendant broke and entered a certain dwelling-house of the plain- tiff, situate at , in the parish of , in the county aforesaid, ami and expelled (/.-) the plaintiff and his family from the possession ami enjoy- ment of the said dwelling-house, and kept them bo ejected ami expelled t long time, whereby the plaintiff during all that time losl and was d( ; riv< d oi the use and benefit of his said dwelling-house, and was put venience and much expense in procuring and removing to another resid for himself and his family. 6. For Mesne Profits and Costs of an /,'/. ctment. < 1 1 That the defendant broke and entered messuages [#c] (to) of the plaintiff. (/j) In trespass for breaking and entering Coom B. 787 j 19 i.. • '. C B and expelling plaintiff, the expulsion i^ Trespass is the property form • I primdfacii mere matter of aggravation, and where a tenant i- it suffices that defendant justify the breaking c. 74. Darlit P hard, 4 M. and entering only, and if plaintiff rely on 783; 2 Dowl. V S. 664. the a substantive trespass, and the common la rendering defendant a ser ah initio, he 1 852 1 1 5 must now assign it. Taylor v. Cole, 2 T. R. of an ej< ctment between lai 292; 1 II. Bl. 555; but see Meriton v. the jury may give dam (m) The premises are usually described as Pleading Rules it seems in the declaration in ejectment, in which Bcribe ynameoi judgment was obtained. But under the Obs., " I: -kiss. 618 LARATIONS IN TORT. TROVER. situate in the parish of . in the county aforesaid, and ejected the plaintiff from hi- and occupation thereof, and kept him so ejected for a long time, and during that time took and received to the use of him the defendant all the i- ad profits of the said tenements, (/<) whereby the plaintiff during all the time aforesaid lost the issues and profits of the said tenements, and was deprived of the use of and of the means of repairing and cultivating the same, and : ily incurred divers expenses (o) in and about recovering possession of the said tenements. TROVER AND DETINUE. Obs. — Trover (from irouvcr), which is a special action on the case, per Park. J. Smith v. Goodwin, 4 B. & Ad. 42". was originally a form of action designed a remedy for the loser against the finder or who refused to restore them on demand, and converted them to his own use. If the defendant has been guilty of a conversion, it is immaterial how he became possessed of the goods, whether rightfully or wrongfully, in the first instance. In this action, the plaintiff does not, as in detinue, claim the rotoration of the goods them- selves, but only damages for a com- and it lias become the usual mode of trying a disputed question of title to goods. See 3 Bl. Com. 15 i: 1 Chit. PI. 7th ed. Trover; Bac. Ab. Trover; 3 Stark. Ev. 3d ed. Trover: [Mock- ford v. Taylor, 19 C. B. N. S. 209.] This action lies for the conversion of any kind of personal property, or the un- divided part of a chattel, but it does not he for the conversion of a record (which is not private property), or for fixtures eo nomine, not severed from the freehold. Minshall ». Lloyd, 2 M. & W. 150; Wilde v. Waters, L6 C. B. 637; 24 L. J. C. P. 193. 'But an action will lie for depriving the plaintiff of the use and possession of fixtures. London ik.c. Loan Company v. Drake, 6 C. B. N. S. 798; 28 L. J. C. P. 297. The action will not lie for money. Ortan v. Butler, 5 B. & Aid. 652. As to the distinction between trespass and trover, see Weeton v. Woodcock, 5 M. & W. 587; 7 Dowl. 853. In order to maintain trover the plaintiff must prove, if contested by the defend- ant's pleas. 1st. his property in the goods; 2d, a conversion by the defendant. 1. Properly in a chattel is either absolute or special: Mackintosh v. Trotter. :; M. & W. 184; Sheen v. Richie, 5 M. & W. 180; either the absolute owner or the special owner (that is, a bailee, carrier, factor. &c), may sue in trover. with this distinction, that the former must sue specially for an injury to his reversion (see - 3), if the conversion occur whilst a third person has an outstanding special title or interest; in such case the absolute or general owner may sue as reversioner for the tort, if it affect his reversionary property, and may recover damages to the extent of his loss; and the special owner may also sue separately for the damage he sustains. It is essential in trover that the to the time of the verdict, or to some pre- all the expenses he lias been necessarily put ceding day mentioned specially in the writ, to in the ejectment, and is not limited to the provided that the landlord .-hall not Debarred taxed betwei n party and party. Doe from bringing any action for t; pro!'- v. Hnddart, 2 Cr , M. & li. 316 j [1 Chitty its which shall accrue from the verdict, or PL 215 et seq.] The action is to be brought the g] day down to the day of recov- against the party actually withholding pos- ering '.n. They need not be claimed session, and it lies against a tenant tor the in the writ. Smith v. Tett, 23 L. J. Ex. 93 ; holding over of his under-tenants, if the •I. ■" - Genl Sts. Mass. c. 134, § 13 former identity himself with the latter. in the above form is the Burne v. Richardson, 4 Taunt. 720; Doe v. owner of land, after a recovery Harlow, 12 Ad. & E. 40. As to evidence, in ejectm nsation for oc- see Ad. Ej. M\> ; 2 Stark. Ev. 434, 3d ed. ; cupatios from the time the party u / Doer. Hnddart, -i Cr., M.. ,v K. 316. held i until possession was regained, (n) If the defendant committed waste or with dan any waste com- injury, here state it. See the preceding in the declaration), and forms. the ineiit. Where there i- (o) Can only recover costs as between 'udgment by default, in ejectment, the plain- party and party. Doe v. Filliter, 13 M. & tiff may, in trespass i profits, recover W. 47. DECLARATIONS IN TORT. TROVEB. 619 Obs. plaintiff should have thej thai is, the possession of the goods; Addison v. Round, I Ad. & E where a bill of sale coi I thai the assignor should rel in goods until default in paymenl of a debt, it was held thai th having demanded it, could nol maintain trover for the be sheriff for taking them in execution. Bradlej v. Copley, i C. B. 685 B the general owner, and, il seems, the Bpecial owner, Buing in troy< p, ai i d pot show thai he was in actua \ — ession ai the time of the convi i si m, tl to possession is sufficient. 2 Saund. 1 7, notes; l Chit. PI. and 8 S Ind. '• Trover;" [^ inship v. Neale, LO Gray, 382.] In th< i pie bailmenl of a chattel, it may be recovered in trover either by th( or bailee. Nichols v. Bastard, 2 Cr., M. & R. 659; Gordon v. Harper, : I. R. 12; Manders v. Williams, -l Ex. 839; 18 L. J. Ex. Waggon Company v. Pitzhugh, 30 L. J. Ex. 281. Bui a mere li( does not. give a right to maintain trover. L< ;g v. \ ■ M. & \\ L. J. Ex. L02; Milgate v. Hebble, 3 M. & G. LOO. The declaration claim* ,-i -lit of possession in the plaintiff, at the tinn I'- P son J. White v. Teal, L2 Ad. ,s. E. L12. Possessi nly ia suffici ao-ainst a mere wrong-doer. Jeffries v. Greal Western B B 802; 26 L.J. Q. B. 107; Bourne v. Fosbrooke, 34 L.J. C. P. 164; Armory v. Delamirie, I Smith's L. < !. The finder of j Is bas a good title as against everyone bul the true owner. Bridges v. Hawksw irth, 21 L. J. Q. B. See Buckley v. Gross, 32 L. J. Q. B. 129; [19 C. B. N". S Medina. 11 Allen, 548; Lawrence v. The Sti e, i Humph. 228; Kincaid <•. Eaton, 98 Mass. 139; Wentworth w. Day. 3 Met. 354; Mathews v. Harsell, 1 E. D. Smith, 393.] The gratuitous bailor 5 may sue a wrong-doer, who takes them from the bailee. Nichollsr. Bastard, 2 Cr., M. & R. 659. This action also lies against a mere doer (nol deriving any power or author- ity from the real owner) at the suit of a person who had only the actual p session of the goods at the time of the wrongful taking or conversion, as the finder or gratuitous bailee, or borrower of -•»"]>. [b. And it lies ai the Buit of a bailor of goods againsl the innocenl purchaser from the bailee. Cooper v. Wilmott, 1 C. B. G7-J; Metcalfe v. Lumsden, 1 C. & K. 2. The conversion is the gist of this action. A conversion does not m< struction of the goods, nor does it necessarily import an acquisition oj y erty in the defendant, or a total or absolute loss of the g 1- to the plaint but it consists in any tortious act by which the defendanl deprives the plain- tiff of his o-oods, either wholly or but for a time. 2 Stark. Ei 46, 47. Bui the merely wrongful asportation of a chattel does ool amount a conversion, unless done with intent to converl it to the use of defendanl or another, or unless it either changes or destroys the quality oJ the chattel. Fouldes v. Willoughby, 8 M. & W. 840. So a mere refusal to allow plain- tiff's servant to come 'on the close of the defendant to take away property the plaintiff does not amount to a conversion. Thorowg 1 v. Robins B. 769; and see Needham v. Rawbone, 6 Q. B. 771. note: and Milgate v. Kebble, 3 M. & G. 100. A conversion may be either, 1st, by wrongfully fafc- inn goods; 2d, by some other illegal assumpti mershxp, or by [legally using or misusing goods; or 3d, by a wrongful see 1 ( hit 1 I. Ind. "Trover."' where these grounds of conversion are discussed; 2 baund. notes; 3 Stark. Ev. 3d ed. Trover. What acl will amount to a com sion when proved is a question of law. [b. The ordinary presumptiv, of a conversion consists in evidence of a demand ol the goods by th< m- tiff, and a refusal to deliver then by the defendant, who has them. A conversion is. it seems, a presumption, which, in poinl ol law, a iurv OUghl to make from such evidence, unexplained by Circums but It is a presumption in law and Eact, and if the jury simply find th I a >\r mana and refusal, the conn cannol infer a conversion, fbis | necessary where th< iwfuUy into the defendanl s pos by finding, or upon a bailm. lelivery by the owner, but it sarvwd.erea tortious taking of the g Is can be proved. Pre proof of a demand and refusal evidence oi the \ ssion bv the h essential; and proof of a possession by a servant ol the ,;■ sutlicient, unless it be proved that he WM falS a,ent Eor the pm 620 DECLARATIONS IN TORT. TROVER. Obs. the agent was employed, and the goods delivered in the coarse of trade. Thus, a delivery to the servanl of a pawnbroker in the shop is evidence of a delivery to a pawnbroker. 2 Stark. Ev. 3d ed. tit. Trover. The demand and refusal must be absolute and unqualified. Philpott v. Kelley, 8 Ad. & E. IOC; Rushworth v. Taylor. 3 Q. B. 699. But an offer to deliver up property, accompanied by a condition which the holder has do right to impose, amounts to a conversion. Davies v. Vernon. 6 Q. B. 4 13. Refusal on account of the ods having been attached in the defendant's hands by a foreign attachment. verrell v. Robinson, 2 Cr., .M. & It. 495; and see Pillol v. Wilkinson, 32 L. J. Ex. 201; ." i lb. 22. A refusal founded on a claim of right is evidence of a conversion, though defendant have a lien on the goods. Cannee v. Spar ton, 8 Scotl X. R. 714; Weeks v. Good, 6 C. B. N. S. 367. But when there is a bonafdc doubt as to the title, the defendant has a reasonable time in which to ar ii up. Vaughan v. Watt, 6 M. & AY. 497; Towne v. Lewis, 7 C. I!. 608: Pitt v. Wilkinson, ubi sup. As to the damages generally, see Addison on Torts. The damages should be the value of the goods at the time of the conversion; Mercer v. .Jones, 3 I mp. 477; Davis v. Oswell, 7 C. & P. 804; [1 Chitty PI. 181, note (y) ; and interest; Robinson v. Hart ridge, 13 Florida, 501; Northern Transp. Co. v. 111. 249;] or, it seems, at any subsequent time, at the discretion of the jury. Greening v. Wilkinson, 1 C. & P. 625. The defendant cannot, on not guilty, prove title in another to mitigate damages. Finch v. Blount, 7 C &P. 478. If the plaintiff claim special damages, that is, damages not necet rilv consequent on the conversion, he should charge them in his declaration. Moon v. Raphael,2 Bing. N. C. 310; Davis v. Oswell. 7 C. & P. 804; Bodley v. Reynolds, 15 L. J. Q. B. 219. Damages in trover by assignee of bankrupt against sheriff. Whitehouse v. Atkinson, 3 C. & P. 344. In trover for an unstamped guaranty, it was held that the damages should equal what might have been recovered on it if properly stamped. M'Leod v. M'Ghie, 2 M. & G. 326. See Turner r. Hardcastle, 31 L. J. C. P. 193; [11 C. B. N. S. 683;] Chinery v. Viall, 29 L. J. Ex. 180; [5 H. & N. 288;] Johnson v. Stear, 33 L. J. C. P. 130; [15 C. B. N. S. 330.] Special damage must be stated in the declaration, if any. The jury may give interest as damages if they please. 3 & 4 W. 4, c. 42, s. 29. 1. Wrongful Seizure or Conversion of Goods, (j?) That the defendant converted (g) to his own use, and wrongfully deprived (p) This form is given by the common precedent to the plaintiff's right of posses- law procedure act 1852, 15 & 16 Vict. c. sion, such as the defendants making default 76, sch. B, 28, except that "or" is used in- in payment of a debt, the ahove count will I," apparently with the inten- not lie. Bradley v. Copley, 1 C. B. 685; don that one or other of the statements Manders v. Williams, 4 Ex. 339; 18 L. J. should be used. See per Willis J. in The Ex. 437. Aetna! possession, Bridges v. on & Westminster Eoan Co. v. Drake, Hawksworth, 21 L. J. Q. B. 75, even though 28 L. .I.e. P. 297, 298; [6 C. B. N. S.798;] obtained fraudulently, is sufficient against a and see Baker p. Gray, 17 C. B. 402. The wrong-doer ; Newnham v. Stevenson, 20 L. J. general practice, however, is to declare as in C. P. Ill; [13 C. 15. 285j] and the true the text. >rm, &c. bv husband and owner may recover goods stolen ; Scatter- wife. Ayling v. Whicher, 6 Ad. & E. 259. good v. Sylvester, 15 Q. B 506 : 19 L. J. Q. ast husband and wife on a conversion 15. 447; or illegally pledged; Cheeseman bythi al v. Kenyon, 3 Q. 15. v. Exall, 6 Ex.341; 20 L. J. Ex. 209 j or 310. This count is proper when the plain- improperly sold ; Langton v. Higgins, 4 EL tiff had actual possession of the goods at the 6c N. 402;' 28 L. J. Ex. 252. And one tenant time rsion. Davis r. Danks, 3 in common may sue another who disposes of Ex.435; 18 L. J. 229. If he had only the the property. '.Max hew v. Herrick, 7 C. B. right of ii. the form in detinue 229; 18 I,. J. C. i'. 179. What a conver- Bhould be used. Addison v. Round, 4 Ad. sion, see Tear v. Freebody, 4 C. B. N. S. & I.. 803. If he be only a reversioner, 22s. What is evidence of a joint conversion ■ of real or personal property, that by several, see Atkin v. Slater, 1 C. & K. should be siated, and an injury to 'the re- 350. on shown. Ante, " Reversion," p. 594 ; (7) That i<, intentionally converted. Dobson v. Blackman, 9 Q. 15. 99] ; n; L.J. Fouldes v. Willoughby, 8 M. & W. 540; Q. B. 233 : B 364; 19 Powell v. Iloyland, 6 Ex. 67 ; 20 L. J. Ex. L. J. ('. P. 177. W there he any condition 82. DECLARATIONS IN rOBT. fROVl I:. the plaintiff of the use and possession (r) of the plaintiff's g iron, hops, household furniture [or as the case may be j. (*) [Count for the conversion of carpenter** tools, stating as special dam the plaintiff was prevented from working. Bodley v. Reynol Of a ship, tackle, stores, $c. Reid v. Fairbanks, LS C. B. 692. mill. Flory v. Denny, 7 Ex.581. For the conversion of dead grouse. I. dalew. Rigg, 11 Ex. 669; I EL & N. 928. Of rabbits. Blades v. II C. B. N. S. 501 ; 11 II. L. C;is. 621. la. Another Form fm- name. And the plaintiff says the defendant has converted to bis nun use ■ ho the property of the plaintiff [or " the goods mentioned in the schedule hi annexed "]. 2. By Assignees for a Conversion before Bankruptcy. (€) That the defendant, before A. B. became bankrupt, converted t<- hi- own use, and wrongfully deprived A. B. of the use and possession of his good., that is to say [describe the goods according to the fact], 3. By Assignees for a Conversion after Bankruptcy. That the defendant, after A. B. became bankrupt, converted to his own and wrongfully deprived the plaintiffs as assignees as aforesaid, of the use and possession of the goods of the plaintiffs as such assignees, that is to say [ the goods']. 4. By Executor for a Conversion in the Testator's Lifetime, t /> i That the defendant, in the lifetime of the said A. B., converted to his own use, and wrongfully deprived the said A. B. of the use and po n of his goods, that is to say [describe goods]. (r) That is seised, but not merely by his servant without the defendant's knowledge; Gordon v. l!"lt, 4 Ex. 3G5 ; 18 L. J. Ex. 432; Freeman v. Rosher, 13 Q. B. 7S0; 18 L.J. Q. B. 340; unless the defendant after- wards ratified the act. which even a corpora- tion may d<> if for their benefit. Eastern Counties I!v. Co. v. Broom, 6 Ex. 314; 20 L. .1. Ex. 196. (s) A gem ral description of a deed or bill is sufficient, and the date nee] not be men- tioned. Cro. Car. 262; Bac.Ab. Detinue, B. In an action for an injury to, or for the ersion of goods, a general description of their nature, as in the form, should be given. i Saund. 333, note (7); 2 Saund. 74, i (1); 1 Chit. PL 7th ed. 391 ; Steph. Lndex. A declaration in trover for "(livers g Is and chattels" would be substantially had. lb.; Pope v. Tillman, 7 Taunt. 642. Intro ver for " a ship with the apparel and appur- tenances," the plaintiff having failed as to the shij), was not allowed to set an a distinct title to a new boat and cordage. Shannon v. Owen, 1 M. & R. 392. Trover for " twenty acres of barley," held good, as only desig- nating the quantity of corn. Joyce r. Ear- man, 1 Alcock & Napier, 22. Irish. It is not advie idant may ha rdicl entered for him as to those not proved. Williams v. Great Western Ry. Co. 1 Howl. X S. 16. (t) Commence as ante, p. B. This form is Or where there \\ Psion before the act of bankruptcy for which the bankrupt might have maintained trover. In most instances the next form i- appro] i where there is any doubt whether the version was not after the bankruptcy, and it may be added a~ a second count without pleading rules. Lackio Vim -.1 1 1. & I.. 716 What evidi ncc will support the latter count. Edwards .11 11 M. ,< W. 366. When, ver the ban] could have maintained the action, i' bankruptcy had intervened, the dei were conclusive evidence nnder <'■ i 16, s. 92. Alsager v. < ( 'otumetiee as anU , p 7 or 1 ; . A -un- ilar form by an administrator in:i) I framed. DECLARATIONS IX TORT. DETINUE. .*). I!// an 7-.V' rut")- for a Conversion after the Testator's Death. That the defendant, after the death of the said A. B., converted to his own use. and wrongfully deprived the plaintiff, as such executor [or "admin- istrator"] as aforesaid, of the use and possession of goods of the plaintiff as BUCh executor [or - administrator"], that is to say [descrihe goods']. 6. Tr jainst an Executor for a Conversion by the Testator. That the said A. B. in his lifetime, and within six calendar months next before his death, converted to his own use, and wrongfully deprive, 1 the plain- tiff of the use and possession of his goods, that is to say [describe them], and the plaintiff savs that this action was commenced within six calendar months next after the defendant, as executor as aforesaid, took upon himself the admin- istration of the estate and effects of the said A. B. DETINUE. Obs. — In this form of action the plaintiff claims the specific recovery of goods and chattels, or deeds, or writings, detained from him by the defendant, with damages for the detention. Special form, Atkinson v. Baker, 4 Taunt. R. 229. See 3 Bl. Com. 146, 152 ; Co. Litt. 296 b ; 1 Chit. PL 121 : Steph. ; 2 Stark. Ev. tit. Detinue, 280 ; Selw. X. P. Detinue. This action lies for a wrongful deten Hon, whether the taking were in the first instance lawful or wrongful, II)., and it is sufficient to maintain the action if the plaintiff is entitled to the possession of goods wrongfully detained. Gledstane v. Hewitt. 1 C. & J. 565 : Newton v. Beck, 27 L. J. Ex. 272 ; [3 H. & N. 220 ;] Oliver v. Oliver, 31 L. J. C. P. 4 ; [11 C. B. N. S. 139 ; Eyre v. Higbee, 15 How. Pr. 45 ; S. C. 22 How. Pr. 198.] And it lies though the defendant have wrongfully parted with the goods before action brought. Jones v. Dowle, 9 M. & Wri9 ; 1 Dowl. N. S. 391. In trover, damages (only) for a conversion are recoverable, the goods themselves cannot be obtained ; though this is obviated in practice by the jury being directed, by consent, to give damages greater than the value (if the goods, with a condition that they are to be reduced to 40*. if the uoods are restored. In detinue the plaintiff claims the goods in specie. The judgment is. in effect, that he recover the goods if they can be obtained from the defendant by the sheriff, and a certain sum assessed by the jury for damages for the detention ; and if the goods cannot he had. then a certain sum alsessed by the jury as their value, besides the damages for de- tention, with costs. Therefore, in case the plaintiff is anxious to get posses- sion of the identical goods or deeds churned, detinue is a better form of actioD than trover. The jury must assess the value of each of the goods, &c. separately, because some of them may be forthcoming, others not. when exe- cution issues. Phillips v. Jones, 15 Q. B. 780; 19 L. J. Q. B. 374. See Wil- liams /■. Archer. 5 C. B. 318 ; 17 L. J. C. P. 82 ; and if the jury omit to do (his, the error cannot be corrected by a writ of inquiry. Pawly v. Holly. ■> Bl. K. 854; Anderson v. Passman, 7 C. & P. 193, Coleridge d. In detinue for several things, the court would not on motion assess the damages as to one article, and strike it out of the declaration nil its being delivered up to the plaintiff; Phillips /•• Hayward, 3 Dowl. 862; but in practice orders are made both in detinue and trover, that upon delivery up of the goods and paymenl of nominal damages and costs the action lie stayed by writ, and that ua case the plaintiff should elect to proceed for greater damages or other ods, and should fail, he should pay costs subsequently incurred. See 2 (hit. Pr. 1 1 ill ed. 1367; Chit Forms, 9th ed. 796. As different causes of actions may now be joined, provided they he by and against the same parties and in the same ri<_dits, but not accruing to the plaintiff in different rights, such as assignees, executor, &c. a count in trover may be joined to one in detinue; 15 & 16 Vict. c. 76, s. 41; but unless there he some special reason for both, one or other maybe ordered to be struck DECLARATIONS IN l him or theii may have judgmenl to recover dam ir their detention if he li any damage, and may have judgmenl t" recover the residue of tL their value, and damages for their detention. Crossfield and other A I trators v. Such, 22 L. J. Ex. 65; | : Ex. 159.] The courts of common law have now power to compel the delivering up < chattels in specie by 17 & 18 Vict. c. L25, 9. 78, which ena court or a judge Bhall have power, if they or he Bee tit so to do, upon the application of the plaintiff in any action for the detention ol anj • order thai execution shall issue Eor the return of the chattel detained, with giving the defendant the option of retaining such chattel upon | the value assessed, and that if the Baid chattel cannot be found, and unless tin- court or a judge shall otherwise order, 1 1 j * ■ sheriff Bhall distrain ill by all his lands and chattels in tin' Baid sheriff's bailiwick, till the defend render such chattel, or, at the option of the plaintifl that he cause to I"- made ot the defendant's goods the assessed value of Buch chattel, provided that the plaintiff shall, either by the same or a separate writ ol i be entitled to have made of the defendant's goods, the dam ind interest in such action." But this rule as to option does not apply where, at the trial, the value of the article has not been assessed. Chilton >■. Carrington, 2J L. J. C. I Jur. N. S. 477. See the form of a writ of execution under this s( i Reg. Mich. 1854, Nos. 34, 35. These writs do not contain any clause directing the damages, costs, or interest in the action to be levied. Ch - frits can- not he issued without a rule of court or order of a judge. Se< i Chit. Arch. Pr. 11th ed. 698. 1. Count in Detinue, (x) That the defendant detained from the plaintiff big title-deeds of land, called Belmount, in the county of , that is to say [describe deeds], 2. Form stating Special Damag , That the defendant detained from the plaintifl' hia goods, that lease of premises in Street, in the county of , and by reason of the premises the plaintiff was prevented from selling, and lost divers opportunities of selling on advantageous terms the said premises, and the term and interi st therein, and was prevented from obtaining and receiving the price for which he might have sold the same; and by reason of the matte,- aforesaid, and the said detention of the said lease, was prevented from selling the term and inter- est of the plaintiff in the said premises to one A. B., who would have bo the same, and the plaintiff claims a return of the said lease, and £ detention. (x) This form is given hv the common 548. [As to replevin, law procedure act, L852 (15 & 16 Viet. e. ter, 11 i Ma $.371; ■ 76), Bched. B, 29. ,1:1I <' of :1 deed need nol he mentio (y) This action lies, though the defendant corn v. Westbrook, l Wile. 1 16. A have wrongfully parted with the goods be- detinue for a bill, and one for m fore suit. 'Jones v. Dowle, 9 .M. & W. 19. received, would be all The goods, &c. are usually described as in Bank of England, 8 Dowl. trover. And it is said more certainty is re- of each article Bhould quired in the description of the goods in by the jury. Phillips detinue than in trover. 2Saund.74c; Co. 780; L9 L.J Q B 174; an Litt. 286 b; Graham v. Grade, 18 Q. B. V. Archer, R C B. 818; 17 L. J.G.I 621 DECLARATIONS IX TORT. WATEBCOUB TRUSTEES OF PUBLIC WORKS. See ante, " Commissioner," " Negligence." TURBARY. See ant' . " Common of Pasture," said post, pleas, ' ; Trespass to Realty." Form for disturbance of common of turbary, Greenhow v. Qsley, Willes R. 619; 2 Chit, i a PL 7th ed. 611. Turbary is a privilege of cutting and carrying away turf, and is appendant to an ancienl the right being limited to the requirements of the house. B. It does not confer the right to use otherwise than for burning. Valentine v. Penny, Noy's It. 145 : Wilson v. Willes, 7 East, 121. WAGON, OR COACH, OR BOOKING OFFICE KEEPER. Obs. — See a form in contract, ante, pt. 1, p. 105, form 14. Gibbart v. Dale, 5 Ad. & E. 543. Form for losing passengers' luggage, ante, 493, form 6. Miles v. Cattle. 6 Bing. 744. The contract of a booking office keeper is only to deliver safely to a carrier, and it is not sufficient evidence of neg- ligence on the part of such office keeper to show merely that the goods did not reach their destination; Gibbart v. Dale, ubi sup.; nor does trover lie against the office keeper in such case; Williams v. Jessey, 5 Scott, GG; unless the soods he lost by wilful negligence. Wyld v. Pickford, 8 M. & W. 4 13. But it is otherwise with a warehouseman. Devereux v. Barclay, 2 B. & Aid. 702. See Chitty & Temple on Carriers, 18-60. WAREHOUSEMAN. Obs. — See the common count for warehouseroom, ante, pt. 1, p. 256. Trover lies against a warehouseman for the misdelivery of goods, even though it is by mistake. Devereux v. Barclay, 2 B. & Aid. 702. Warehousemen and wharfingers may insure their customers' goods against fire, and may recover the whole value* under a policy on goods " held in trust or on commission." Waters v. Monarch Assurance Co. 5 El. & Bl. 870; 25 L. J. Q. B. 102. See post, pleas, tit. "Lien." • WARRANTIES. See " Fraud," ante, 518 et seq. and "Warranty," ante, part 1, pp. 256-262, 475. WASTE. See " Landlord and Tenant," " Rector," " Dilapidation," " Reversion." WATERCOURSES. Obs. — See Gale on Easements, by Willes. The right to the enjoyment of a water- course is an easement and not a profit a prendre in the soil of another. In Manning v. Wasdale, 5 Ad. & E. 758, it was held that the right of an occu- pier of an ancient messuage to water his cattle at a pond, and to take the water thereof for domestic purposes for the more convenient use of his mes- DECLARATIONS IN TORT. WATEBOOUB1 Obs. suage, is an easement. See Race v. Ward, I El. ft Bl. ! yard, 8 Ad. & E. L61. [Mr. Angell in his work on Watei says, " The right to the use of the flow of the water, in it- natural i and to the momentum of its fall on the land of the proprietoi called an easement, because i1 is inseparably connected with, and inherent in, the property in the land; il is parcel of the inheritance and p it." In Johnson v. Jordan, 2 Met. -' ; ''. Shaw C. - 1 s, a natural course "is inseparably annexed to the soil, and pa th it. not easement, uor as an appurtenance, but as parcel. Use do and disuse cannot destroy or suspend it. Unity of ion and title Buch Land with the Lands above il or below il does not extinguish it." In a Later case, Cary v. Daniels, 5 Met. 238, Wilde J. ["he righl which a party lias to the use of water flowing over bis own land is un- doubtedly identified with the realty, and is a real or corporeal hereditament, and nut an easemenl ; bul the right of a party to have the water oi a -• ream or watercourse flow to or from his Lands or mill, over the land of anothei an incorporeal hereditament, and an easement, or a prsedial servi defined by the civil law. And it is immaterial whether the wat be natural or artificial; orwhether the right is derived • -inn- natorce,orbj grant or prescription." This language is quoted, as a correct statement of the I by Hubbard J. in the still later case of Crittenton v. Alger, 11 Met. 284. : the remarks of Erie J. in Stokoe o. Singers, 8 El. & Bl. 86; Pollock C. B. in Dickinson v. Grand Junction Canal Co. 7 Exch. 299,300; Parke B. in Rawstron v. Taylor. 11 Exch. 3S2; Wightman .!. in Chasemore v. Richards, 7 II. L. Cas. 349; 5 H. & N. 984, 985; and Lord Wensleydale in the Bame case; Holsman v. Boiling Spring Bleaching Co. ] McCarter, 843; Wheatlev v. Baugh, 25 Penn. St. 528, 531, and other cases cited in note (1) to Angell Watercourses, § 90.] The law respecting the right to water is explained in Mason v. Hill, ■"» B. & Ad. 1; 3 B. ,\: Ad. 904. Running water is originally pub a 1 an indi- vidual can in general only acquire an exclusive righl to it. enabling Lin sue for an obstruction or injurious interference with the stream to his preju- dice, by applying so much of it as he requires for a beneficial purp Chatfield v. Wilson, 27 Vt. 670; S. C. 31 Yt. 358 : Tillotson v. Smith, 32 V H. 90; Parker v. Griswold, 17 Conn. 288; Corning v. Troy Iron & Nail Fac- tory, 40 N. Y. 191; Van Hoesen v. Coventry, 10 Barb. 518.] Each owner of land on the banks of a river or stream has a righl to the enjoyment ol the water flowing in its natural course, and is entitled to use it Eor any pur;. not inconsistent with similar enioymenl in the owners above and below. Sampson v. Hoddinott, 26 L.J. C. P. 147; [1 C. B. N. - abrey v. Owen, 6 Ex. 369. [As to the uses a party maj make ol a natural water- course running through his land, see Elliott v. Fitchburg R R. Co. l 191 ; Springfield v. Harris, 4 Allen. 194 ; Gould r. Boston Duck Co. l 442; Pitts v. Lancaster .Mills, 13 Met. 156; Miner p. Gilmour, 12 M< P C. 131, 156; Snoww. Parsons, 28 Vt. 159; Chatfield v. Wilson, 31 \ Haves v. Waldron, 44 N. H. 580; Davis v. Getchell, 50 Maine. 602; \\ h ley v. Chrisman, 24 Penn. St. 298; Gerrish v. New Market Manuf I N. H. 478, 483; Gilletl r. Johnson, 80 Conn. 180; Wadsworth v. rulotson, 15 Conn. 366; Stein u. Burden, 29 Ala. 127; tfuttall v. Bracewell, L. B 1: Merrifield v Worcester. 110 Mass. 216, is an important ease upon this point.] He cannot, however, acquire a right to throw the water back on the proprietor above, ortodhcrt n tmin the proprietor below, witl from such proprietor, or an enjoyment uninterruptedly for years; and the right of appropriation to particular purposes cannot be acquired a against the owners of lands on the banks of the stream by an user for a lest period. See Mason v. Hill, ubi sup.; Williams r. Morland. 2 B L0; Wright v. Howard, i Sim. & Stu. 190 : and Bee the statute 2 & 8 A T3 Kent, 439; Angell Watercourses (6th ed.), ch. iv. § 90 et J. in Johnson c. Jordan. 2 Met. 289; Wheatley v. Baugh, 25 1 enn. - 531: Holsman v. Boiling Spring Bleaching Co. I McCarter, 885; He, v. Johnston, 6 Porter, 472; Pugh v. Wheel,,-. 2 Dev. & Bat j Omelvany v. Jaggers, 2 Hill (S. Car.). 684; Tdlotoon v. Smith 32 N -1 94; Jones v. Stevens, 3 Vt. 308, 316; KantVinan v. Gne» 1 I "" VOL. II. 40 62G DECLARATIONS IX TORT. WATERCOURSES. Ou>. 407,413.] See, however, per Alderson J. in Frankum v. Falmouth, 6 C. & P. .- : ,i Kim „. Fisk, -' C. & J. 126. A right may be acquired whether the watercourse is natural or artificial. Magor v. Chadwick, 11 Ad. & E. 586; Be< Bton v. Weate, 25 L. J. Q. B. 115; Gould v. Martyn, 84 L.J. Q. B 358; Greatrex v. Haywood, 8 Ex. 29; Sutcliffe i». Booth, 32 L. J. Q. B 186; Arkwri^ht v. Gell, 5 M. & W. 203; [Angell Watercourses (6th i; Earl v. De Hart, l Beasley (X. J.). 280, 285; White v Chapin, 12 Allen. 516,520; Shields v. Arndt, 2 Green Ch. (N. J.) 234, t; Dickinson r. Miller, 7 Allen, 19, 22; Smith r. .Miller. 11 Gray, 145; , Penn. R. R. Co. 51 Penn. St. 351; Jessup v. Louckes, 55 Penn. St. : Dunklee v. The Wilton R. R. Co. 24 N. II. 506; Townsend v. McDon- ald. 2 Kernan, 381; Gaved v. Martyn, 19 C. B. X. S. 732; Ivimey v. Stocker, 1 \[_ i Ch. 396.] As to the diversion of surface drainage, see Broadbent v. l; unsbottom, 11 Ex. 602; 25 L. J. Ex. 115; Rawstron v. Taylor, 11 Ex. 369; I.. .1. Ex. 33. [Angell Watercourses (6th ed.), § 108 a et seq., and notes, and cases cited, Popplcwell v. Hodkinson, L. R. 4 Ex. 248; Gannon v. Har^adon, 10 Allen, 106, 109, 110; Luther v. Winnisimmet Co. 9 Cush. 171; Plago v. Worcester, 13 Gray, 601; Parks v. Newburyport, 1" Gray, 28, Li J. in Wheeler v. Worcester, 10 Allen, 591, 602, 603; Ashley v. Wolcott, 11 Cush. 192, 195; Dickinson v. Worcester, 7 Allen. 1!): White v. Chapin, 12 Allen. 516, 518; Buffuin v. Harris. 5 R. I. 243, 253; Goodale v. Tuttle. 29 X. Y. 459; Curtis v. Ayrault, 47 X. Y. 73, 78; Waffle v. Xew York Central R. R. 58 Barb. 413; Rylands v. Fletcher. L. R. 3 H. L. 330; Hoyt v. Hudson, 27 Wise 656; Sweet v. Cutts, 50 X. H. 437; Greeley v. Maine Central R. R. 53 Maine, 200; Pettigrew v. Evansville, 25 Wise. 223, 226; Kauffman v. Griesemer, 26 Penn. St. 407; Martin v. Riddle, 26 Penn. St. 415, in note; Lattimore v. Davis, 14 La. 161; Adams v. Harrison, 4 La. An. 165; Bellows v. Sackett, 15 Barb. 96; Laumier v. Francis, 23 Missou. 181 : Bentz v. Armstrong, 8 Watts & S. 40; Butler v. Peck, 16 Ohio St. 334; Beard v. Murphy, 37 A r t. 99; Miller v. Laubach, 47 Penn. St. 154; Earl v. De Hart, 1 Beasley Ch. (X. J.) 280; Bowlsby r. Spear. 2 Vroom, 351; Tillotson v. Smith, o ; 2 X. H. 90, 96; Livingston v. McDonald, 2G Iowa, 160, 172; Stone v. Augusta, 46 Maine, 127; Turner v. Dartmouth, 13 Allen, 291; Barry r. Lowell, 8 Allen, 127; Franklin v. Fisk, 13 Allen, 211. 212; Bangor v. Lausil, 51 Maine, 521; Bassett v. Salisbury Manuf. Co. 43 X. II. 569.] As to the right to subterranean water, see Acton v. Blundell, 12 M. & W. 324; Chasemore v. Richards, 29 L. J. Ex. 81; 7 H. L. Cas. 349; 2 H. & X. 168; Reo-. v. The Metropolitan Board of Works, 32 L. J. Q. B. 135; 3 B. & S. 710; Hodgkinson v. Ennor, 32 L. J. Q. B. 231; 4 B. & S. 229; [Wheatley v. Baugh, 25 Penn. St. 528, 531; Haldeman v. Bruckhardt, 45 Penn. St. 519; Arnold v. Foote, 12 Wend. 330; Xew River Co. v. Johnson, 2 El. & El. 445; Frazier v. Brown, 12 Ohio St. 300; Brown v. Illius, 25 Conn. 583, 594; Roath v. Driscoll, 20 Conn. 533; Whetstone v. Boneser, 29 Penn. St. 59; Smith v. Adams, 6 Paige, 433; Bennett J. in Chatfield v. Wilson, 28 Vt. 55; Clarke v. Conroe, 38 Vt. 473; Radcliff r. Mayor &c. 4 Comst. 195, 200; Harwood v. Benton, 32 Vt. 724; Ellis v. Duncan. 21 Barb. 230; Greenleaf v. Francis, 18 Pick. 121; Parker v. Boston & Maine R. R. Co. 3 Cush. 107; Rylands v. Fletcher, L. R. 3 H. L. 330; Wilson v. Xew Bedford, 108 Mass. 261; Monson & Brimfield Manuf. Co. v. Fuller, 15 Pick. 554; Ball v. Nye, 99 Mass. 582; Fuller v. Chicopee Manuf. Co. 16 Gray, 46; Pixley v. Clark, 35 X. Y. 520.] By the Mat. 2 cV :;" W. 4. c. 71, s. 2, it is enacted, "that no claim which may be lawfully mad. al the common law by custom, prescription, or grant, to any rca;i or other easement, or to any watercourse or the use of any water, to be en- joyed or derived upon, over, or from any land or, water, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, Bhall be defeated or destroyed by showing only that such way or other matter was firsl enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefea- DECLARATIONS IN TORT. WATERCOUB 627 3bb. siblc, unless it shall appear thai the same was enjoyed b agreemenl expressly given or made for thai purposi The 4th. 5th, and 7th sections of the act, which Bhow how thi are to be calculated, and poinl oul w in the case ol p< i ability, as infancy or enjoymenl againsl tenants for life, &c. h ■ . il« ready cited fully, ante, 479, Obs. See, further, /«<*<'. " •• Watercourses," where the recenl cases on thi eel are full) citea. Wrighl '■• Williams, l M. & W. 77. it was held tb I im by uu a copper mine to sink pits on his ov< n land, to fill such pits with u cover the same with wain- pumped from the mine, for the purpose oi pn i ipi- tatin" the copper contained in such water, and afterward to lei off tb impregnated with metallic substances into a watercour e upon the land another, is a claim to a •• watercourse " « ithin the 2 & 3 W. i. As to licenses to make drains, &c. see Hewlins v. Shippam, 5 B I timan v. Smith, 4 East, 107; Mason '•. EM, supra. The plain) by oral license, permitted the defendanl t<> lower the l>ank of a river, and make a weir above plaintiff's mill, wherein' Less water than before flowed to plaintiff's mill, held, that plaintiff could nol sue defendanl for continuing the weir. Lia-o-ins v. Inge, 7 Bing. GS2; and see Wood v. Leadbitter, LS M W. 828. It is no defence to an action for obstructing a watercourse, in violation oi a acquired, that slighl alterations have been made by the claimanl in the m of enjoyino- his privilege. «N-e. See Saunders c. Newman, 1 B. & Ud. 2 Greensladi^. Ilallidav. 6 Bing. 379; Hall v. Swift, 1 Bing. X. I jell Watercourses (6th ed.), § 224 et seq. and cases cited: Gilford v. Winnipu gee Lake Co. 52 X. II. 262.] Nonuser for sixteen yen-. Bower v. Sill, 1 Bin«\ N. C. 549. [See Angell Watercourses (6thed.),§ 240 etseq. ; Browne v. M. E. Church, Baltimore City. 37 Md. 108.] It is sufficient to declare generally upon the plaintiff's p< ion and enjoyment of the use of the water as of right, as in the above form. Thh before the 2 & 3 W. 4, c. 71, and the 5th section sanctions such d alleging the claim; see ante, 479, Obs. As to the form of claiming and tifymg under aright of this kind in a plea, see post, " Trespass," plea. •• \\ a- tercourses." Ward v. Robins, 15 M. & W. 237. It has been usual to cha in the declaration that the plaintiff was possessed of a mill or close, "an reason thereof '" of right oughl to have enjoyed. &c.: this allegation ol ri resulting from possession is inapplicable where the righl arises Erom a grant, or license, or agreement. See Fentiman v. Smith, l East, 107; Bewlins Shippam, 5 B. & C. 221; 3 Stark. Ev. 3d ed. L248. And where the decla- ration charged that the plaintiff was possessed of a and by reason thereof" was entitled to a watercourse, but the proof was, thai the nghl isted only in respect of plaintiff's land, and could uo1 have arisen from Ins possession of his mill, as it was built within twenty year-, the judge at tnal would not permit an amendment; and although the jury found the plaint, rio-ht specially, and it was indorsed on the postea under 3 &4 YY. I. C. 42, s.°24, yet the court above would not give judgment im- the plaintiff on that finding because if the declaration had bee, accurate the defendant might have pleaded differently. Frankum v. Earlol Falmouth, 6 U & I Ad. & E. 452: and see Stockport Waterworks Company v. Potter, 3 M C. 300; [Nuttall v. Bracewell, L. R. 2 Ex. l. See AngeO \\ atercoura ed.), § 405 et seq.] It seems advisable in general to omit the words, •• by son thereof," &c. . , , . , , Care should be taken to describe the caus< ol the injury accurately in th laration. A count lor diverting water is nol supported byevidence nine back and causing an overflow. Griffiths v. Marson, 6 1 nee. i. \ for erecting a dam, and thereby preventing water from supplying a null, was held to be sustained by proof that the dam prevented the regular sup] the water, but did not diver, the stream, as the water returned to u course before it reached the mill, and caused no wt bl ars v. \\ Moore, 345. And where the charge was the digging a sewer and water from a pond, and the evidence was that the water was divert» gin- the sewer, but previously to making it. and that since the maSe, the water could not rise to its former height; held not I vana:. DECLARATIONS IN TORT. WATERCOURSES. Ons. regarded the continuance of the Bewer. Dukes v. Gostling, 1 Bin^. N. C. [See Angell Watercourses (6th ed.), jj 418 et -r that the plaintiff was possessed of certain bleaching works, and there carried on the trade and business of a bleacher, and was entitled to the flow of water of a certain stream of good quality, and used by the plaintiff in his said trade and business [and also to water his cattle], and the defendant fouled the -aid stream, whereby the water became unfit for the use of the plaintiff in his said trade and business, and he lost great profits thereby [and has also been prevented from watering his cattle in so commodious a manner as he would otherwise have done], and has been obliged to procure water elsewhere for the purposes aforesaid at a great expense, and his said premises have been and are much deteriorated in value. (:). See the form given by the common law procedure act, 1852, sched. B, 30; see another form, Wood v. Waud, 3 Ex. 48 ; 18 L. J. Ex. 305 ; Dudden v. The Clut- ten Union, 1 II. & X. 027 ; 26 L. J. Ex. 146 ; Hall v. Swift, 4 Bing. X. C. 381 ; [Northam v. Huxley, 1 El. & Bl. 665 ; Insole v. James, I H. & X. 243 ;] Beesto v. Weate, 25 L. J. Q. 1!. 115; [5 El. & Bl. 986.1 For dimin- ishing supply. Blagrove v. Bristol Water- works, 26 L. J. Ex. 57. For taking more water than authorized to take. Penarth & Co. v. Cardiff Waterworks Co. 29 L. J. C. P. 230; [7 C. B. X. S. 816.] The venue is local, but a local description is not necessary. Mersey Navigation v. Douglas, 2 East, 497. Variance in describing the situation of a weir; Gibson v. Wells, 1 New R. 290; but a mistake of this kind not misleading the i'lant, &c. would probably be amended at tin- trial. Qucere, whether a temporary and slight obstruction, occasioning no real ensible damage, would be actionable. I lor v. Bennett, 7 C. & P. 329 ; ante, t-1. Semhle not, if the right were not put in litigation by the defendant. See 2 Stark. Ev. 3d e.l. 1254, note (y). But in general the mere invasion of a right, which might become prejudicial, is actionable without proof of any specific injury. lb.; 1 Saund. 346 6. _ (a) These words arc inapplicable if the right did not result from the possession of the mill. Frankuni v. Falmouth, 2 Ad. & E. 452 ; 6 C. & P. 529, where see a form. (b) The right to the water force for a ben- eficial purpose must be shown. See Williams v. Mbrland, 2 B. & C. 910 ; Manning v. Was- dale, 5 Ad. & E. 758, in which latter case see as to the allegation of a claim of water, for culinary and domestic purposes, lor the convenient use of a house. (c) See a statement complaining of the discharge into a stream, of water, &c. from pit s containing iron and copper water, Wright v. Williams, 1 M. & W. 77. Form, Moore v. Webb, 1 C. B. X. S. 673. For pol- luting a stream. Whaley v. Laing, 26 L. J. Ex. 327 ; 27 L. J. Ex. 422 ; [2 H. & X. 476 : | Stockport Waterworks Co. v. Potter, 3 II. & C. 300; Hodgkinson v. Ennor, 4 B. { - 229 ; 32 L. J. Q. B. 231 ; [Holsman v. Boil- ing Spring Bleaching Co. 1 McCartcr, 3.35, 342; Merrifield v. Lombard, 13 Allen, 16; Snow v. Parsons, 28 Vt. 459; Wheatley v. Chrisman, 24 Penn. St. 298; Howcli v. M'Cov, 3 Rawle, 397 ; Housee v. Hammond, 39 Barb. 89; Jones v. Crow, 32 Penn. St. 398, 406; Hayes v. Waldron, 44 X. BL 5S5 ; Crossley v. Lightowler, L. R. 2 Ch. Ap. 478; Merrifield v. Worcester, 110 Mas-. 216; Hall v. Lund, 1 H. & N. 676; Hodg- kinson v. Ennor, 4 B. & S. 229; Stockport Waterworks Co. v. Potter, 7 H. & X. 160. Count, for polluting an artificial water- course. Whaley v. Laing, 2 H. & N. 476.] DECLABA1 IONS IX rOBT. WAIl Ri JEg. 3. Against the Occupier of Land for improperly keeping open the Batch of a Reservoir connected with a Stream, wherel Mill was not sufficiently supplied with Water. See a form in the last edition of this work. 4. Against Commissioners of a Level for stopping up a Drain which drained Plaintiff's Land, (d) For that plaintiff was possessed of land, and entitled to have the wal from time to time collecting and being in and upon the said land drained carried away from the same through a certain drain, and from thence thi other drains into [the sea] ; yet the defendant wrongfully placed large quan- tities of earth, stones, and rubbish in the said drain, and wrongfully Btopped and obstructed the said drain, and kept and continued the same bo stopped up and obstructed, whereby large quantities of the waters which from tin time during that time collected, and wen- in and upon the said laud of the plaintiff, were obstructed and prevented from running away from the same through the said drain, as they otherwise would have done, and were penned and driven back upon the said land of the plaintiff, and accumulated thereon, and by reason thereof the said land of the plaintiff is rendered wel and .swampy. and unproductive; and thereby also cattle and sheep of the plaintiff, depas- turing upon the same land, became diseased, and were injured and destroy* d : and also by reason of the premises, divers crops of corn, grain, and hay of the plaintiff, growing upon his said land, wire spoiled, damaged, and destroyed; and also by reason of the premises the plaintiff has incurred expenses in en- deavoring to cultivate his said lands, and to restore the sain.' to their former good state and condition, and the plaintiff has been and is otherwise much injured. 5. Against the adjoining Occupier for discharging Rain the Eaves of a Roof on to the Plaintiff's L-nnl. \ That the defendant was possessed of a building abutting on the land of the plaintiff, and wrongfully built the eaves of the said building hanging over the plaintiff's land, whereby the rain-water poured on to the said land and made it wet and useless. 6. For obstructing the Plaintiff from discharging Hah the adjoining Land of the Defendant. Battishill v. Reed, 25 L. J. C. P. 290 j [18 C. B. 696.] 7. For mooring a Vessel in the Thames opposite Plaintiff's R and thereby preventing the access of Vessels thi / ) Rose v. Groves. 5 M. & . 23. For disturbing the Plaintiff's Right to a St w< r. Lee v. Stevenson, 27 L. J. 263 ; [El., Bl. & El. 512 ; Cooper v. Pegg, 16 C. B. 264.] 24. For obstructing a Watercourse from a Colliery made by the Plain- tiff over the Land, and by the License of an Adjacent Ownt r. (A) Roberts v. Rose, 33 L. J. Ex. 1 ; [3 II. & C. 162.] WAYS. Obs. — See, in general, as to public and private ways. Yin. Al.r. and Com. I>i_r. tit. Chimin; Bac. Abr. Highways; I Saund. 326, note (6); Burn's J. tit. High- ways; Gale on Easements, by Willi No action lies for an obstruction in a common highway, unless the plaintin show special damage; seethe cases cited, ante, " Nuisances," Obs. 619. A private way is claimed either by grant, reserva . or from sity. The provisions of the late act, 2 & 3 W. I. c 71, >. 2, the claim of a right of way by prescription, have been fully noticed, a Obs. 496. The decision- explaining the provisions of the Btatute (Brighl v. Walker, 1 Cr.,M. & R. 211; Beasley v. Clark, •-' Bing. N. I 705, &c), are fully cited in the note to the plea in ZV< ipass, " Way," post, justifying under a ri«ht of way. Case is the only remedy for obstructing a righl of waj . and it seems that form of action mighl be adopted where tic obstruction from a building erected by the defendant at one time, partly upon the plain- tiff's land ami partly upon the defendant's over which the waj See per Lord Abinger C. 1!. and Parke 1'.. Wella v. (My, l M. & W. See "Nuisances." ante, 580, " Watercou ,62 1. (A) See, also, in same case, pleas, " New Assignment," and " Replication." 602 DECLARATIONS IN TORT. WAYS. 1. For obstructing a Private Right of Way. (7) That tli«' plaintiff waa possessed of a messuage \_as the case may be], and was entitl. <1 to a way from the said messuage over a close to a public highway, and bark again, for himself and his servants on foot, and with horses, cattle, carts, and carriages at all times; yet the defendant wrongfully obstructed the said way. [1) Common Law Procedure Act, 1852 H. & C. 484.] See a plea of accord and (15 & 16 Vict. C 76), sch. B, 43. satisfaction by one of several defendants. (c) " They are," or if in an action against Haiiibrid^-e r. Lax, 9 Q. B. 819; 16 L. J. Q. and and wife for the tort of the latter, B. 85. See, also, Thurman v. Wilde, 11 Ad that the '• defendant A." (the wife), is not & E. 453 ; [Hey v. Moorhouse, 6 Bing. N. C guilty. 52.] (dj Sec Obs., ante, 288 ; [Boosey v. Wood, 3 PLEAS IX TORT. ANCIENT LIGHT8. A.GENTS Obs. — See " Attorneys, " ante, 804. Not guilty would deny the br< charged :is neglect, misconduct, 8tc. but no! the retainer of the d< the character alleged, aor the deliver) 1"- (old, character. Webb v. Page, 6 M. & G. 196; l D. & L. 581; R. G T. I ante, Oh-, [n case against an agenl for improperly drawing ;i bill in tiffs name, a plea that he drew u Eor a purpose to which lii- authoi tended was held bad, as amounting to the general issue. Pii 10 M. & W. 206. See post, " Carriers." Plea denying the Retainer, $c. (e) Tliat the plaintiff did not retain or employ him [or "deliver to biro the Baid goods and chattels or any part thereof, for the purpose or upon the terms,' the case may be~\ as alleged. ANCIENT LIGHTS. (/) Obs. — Not guilty denies the mere fact of obstruction, admitting the plaintil session of the house, and that he was entitled to the right to the enjoyment of the light. Frankum v. Lord Falmouth, 2 Ad. & E. 152. S( • R. G. T. T. r. 16, 1853. The right to an ancient light, since the passing of 2 & 8 W. 4, c. 71, s. 3, depends upon that statute, ami not on any presumption of a "rant or fiction of a license having been obtained from the adjoining proprie- tor. Tapling v. Jones, 84 L. J. C. P. 342; L. R. 1 II. L. 260. 1. Denial that Plaintiff was jwssessed of the Mouse, (g) That the plaintiff was not possessed of the said messuage as alley 2. Denial of the alleged Right to the Light, $c. (A) That there were not of right any or either of the said windows through which the light or air ought to have entered as alleged. 3. Plea justifying Obstruction under an Act of Parliament. Turner v. Sheffield Ry. Co. 10 M. & W. 425. (e) See form by a broker, Turpin v. Bil- plaintil)' himself to defendant's prejudice, &C. ton, 5 M: & G. 46*0. See I rarritl Sharp, 5 Ad. & E. 825. - (/) See forms of declaration and notes, another form (with a special indai ante, 479. Effect of not guilty. Ante, 635. and law, Flight v. Thomas, n Ad. & E. i This plea would be properwhere the 690, and another, though id is incorrectly brought by a landlord traverse, Garritt v. Sharp, pra. A upon his possession, instead of charging an special plea of mere non-user won! injury to his reversion ; see ante,594,form l ; See Manning v. Wasdale, 5 Ad. & I the house having been in the occupation or The statute 2 & 3 W. 4, which sanction* holding of a tenant when the grievance ex- the general form of claiming the rigl isted. "The next form is proper where the light in a declaration for obstructin exclusive right tothelight isdenied. 179, 180, Obs.), provides that "if the (h) This plea puts the plaintiff on proot '1 allegation be denied, all ai of his right by twenty wars' uninterrupted the matter- in this act mentio I and enjoyment, &c. See 2 & 8 "W. 4, c. 71, vided, which shall be applicable to the s. 3 ; onto, Obs. 479 ; or by grant. It would shall be admissible in evidem seem to be the proper form where the de- rebut such allegation." - fendant contends that the ri-ht has been obstructing ancient Lights under .. lost, by the mode of the enjoyment of the act. Turner v. Sheffield 4 Rothernam By. light having been essentially altered by the Co. 10 M. & W. 426. 638 PLEAS IN TORT. BANK AND BANKERS. 4. Plea on Equitable Grounds that the Plaintiff acquiesced in the Building causing the Obstruction. Davies v. Marshall, 10 C. B. N. S. 692 ; 31 L. J. C. P. 61. (i) [5. Ph-i justifying an Entry on the Plaintiff's Land to remove ar. Obstruction to the Defendant' 's Ancient Light*. That at the time of the alleged trespasses the defendant was possessed of an ancient dwelling-house adjoining the said close of the plaintiff, and by reason thereof was entitled to have the light and air enter into the said dwelling-house through a certain ancient window therein ; and because the said building in the said close wrongfully obstructed the light and air, and prevented the same from entering into the said dwelling-house through the said window, the de- fendant entered the said close of the plaintiff and pulled down the said building in order to remove the said obstruction, doing no more than was necessary for that purpose, which are the alleged trespasses. A like plea. Thompson v. Eastwood, 8 Ex. 69.] ANIMALS. See "Mischievous Animals," post. ASSAULT. See post, "Trespass to the Person." ATTORNEYS. See ante, " Agents," as to the effect of not guilty, and " Attorneys," ante, Pleas in Contract, p. 304. AVOWRY. See post, "Replevin. BAILEES. Obs. Effect of not guilty, ante, "Agents," and Pleas in Contract, ante, 311. The bailment if denied must be specially traversed, as that the plaintiff did not let to hire, fyc. to the defendant. See post, " Carrier." BANK OF ENGLAND AND BANKERS. Obs. Bee pleas in the forms referred to, ante, 486, particularly, Coles v. Bank of England, 10 Ad. & E. 437; and see Pickwood v. Neate, 10 M. & W. 206. The plea of not guilty would merely deny the default or breach of duty, and would admit the inducement of plaintiff's" title or right. See form of plea by bankers sued for not paying a check of their customer. Whittaker v. Bank of England, 6 C. & P. 700, 702. (i) See replication thereto. PLEAS IN TORT. CABRH BOOKING OFFICE KEEPER See an! CARELESSNESS. See " Negligenc< " CARRIAGES, COLLISION OF. Post, " Negligence." CARRIERS. Obs. — See generally, ante, 94 and 355. An example is given, It. G. T. T.r. 1G, 1853. "In actions against a carrier, the plea of not guilty will operate as a denial of the loss or damage bul not of the receipt of the goods by the defendanl as carrier for hire, or of the pur- pose for which they were received." Of the effect of not guilty. Where the defence is founded upon the provit of the carriers' act, 1 W. 4 c. 68, cited, ante, 94, requiring that the value of goods of a certain description should be declared, &c. there Bhould I- special plea accordingly. Syms v. Chaplin, 5 Ad. & E. 634. See Form ■"-. ante, 378, and another form "in contrail, where the g Is were delivered to B servant of the defendant, not a1 a receiving house. Syms v. Chaplin. S Boyce v. Chapman, 2 Bing. X. C. 222. These Eorms will equally apply in case. See a plea of a contract (not within the carriers' act) limited by pre- vious notice. Wylde o. Pickford, 8 M. & W. 443. Plea by a carrier (charg as a wharfinger) thai the goods were destroyed by an accidental fire. Bourne v. Gatliffe, ?M. & G. 850. Money may be paid into court by a carrier sued for the loss of or injury to goods. See " Payment," post. The replications su<_ rr -iested. ante, 3.") 7," would in general be applicable to pie led on UK- carriers' act. Where there has been an arrangement between the bailor and a sub-carrier without notice to the carrier, the carrier was held not liable for the carelessness of the sub-carrier in not carrying out the arrangement. Butterworth v. Brownlow, 34 L. J. C. P. 2G6; 19 C. B. X. S. 409. 1. Plea by a Carrier denying the Receipt by him of the Q fc) That the plaintiff did not deliver to him, nor did he receive the said goods and chattels from the plaintiff, or any of them for the purpose alleged. 2. Plea that the Defendant ivas not a Common Carrii r. That he was not a common carrier [of goods, or of passengers and their luggage] as alleged. 3. Plea that the Plaintiff did not pay the < 'arriage. (7) That the plaintiff did not pay, nor was he ready and willing to pay to the defendant his reasonable charge for the carriage and delivery of the said g Is. fife) See forms, &c. Palmer v. Grand and refusal to pay the carriage by the plain. Junction Ry. Co. 4 M. & W. 750; Davey tiff. Crouch I ■ Great Western H v. Mason, 1 C. & Marsh. 4G ; supra, Obs.; 26 L. J. Ex. 418; [2 H. 8 V 91 I form of plea by ship-owner, Major v. White, an action agamsl a company for refusing 7 C & 1' 42: Quiggin v. Duff, l M. 4 W. receive and carry a horse, that I 174. What is a sufficient delivery, or is a declared the value of the borsi receiving house of a carrier. Sims v. Chap- £50, and that the company i lin, 5 Ad. & E. 534; ante, 99, and notes, increased tare, under 17 & 18 • The above plea puts the plaintiff on proof of s. 7. which he refused to pay ; and ne a delivery to the carrier or his servant for the company to make BUch demand. K«. purpose alleged. »■ 8outh Westen M L.JJ l (/) See a plea of tender of the goods to [\'J C B. N. 8. 51.] 640 PLEAS IN TORT. COMMON OF PASTURE. 4. Pica by a Carrier, sued on hi* Common Law Liability, that the G h ( Oil) were lost by being put in an Insecure Cask. (???) As to the not safely and securely delivering the said hogshead of oil for the plaintiff, the defendants say thai at the time the said oil was delivered to them a> aforesaid the same was contained in a cask, which was then bad and insuf- ficient, and not properly secured and coopered, withoul any default on the part of the defendants, for which reason, and not otherwise, the said cask or hogs- head afterwards, and alter the defendants had conveyed the same to , and before the defendants could safely and securely deliver the said oil there for the plaintiff as aforesaid, broke, burst, and gave way, and the said oil therein then escaped from the said cask or hogshead, and was wholly wasted and lost without the defendants' default. 5. Plea by a Carrier by Water, that the Goods lost were Silver, within the 26 Geo. 3. . & L. 531, it was held that R. 3 C. P. 14. under the general issue the defendant could (n) See, now, 17 & 18 Vict. c. 104. s. 503, not show that the less of the goods arose and Williams v. The African Steam Ship from the plaintiff 's own negligence in jack- Co. 1 H. & N. 300; 26 L. J. Ex. 69; De ing them, or from the plaintiff having mis- Rothschild v. Royal Mail Steam Packet Co represented their weight so as to induce the 7 Ex. 7.'i4 ; 21 L. J. Ex. 273 ; and ante, 360. defendant to employ an insufficient van. (o) See, also, ante, 359, 360. PLEAS IN TORT. COMMON OF PASTURE, 641 Obs. must be a spccia. plea accordingly. A~ to encroachment i nmon l>v license, Bee Doe v. Wilson, n cast, 66; Barvej v. Reynold . 12 P 1 C. & P. 141; Doe o. Wilkinson, SB. &C. LIS; Doe v. Clark, 8 B x< 717. In some cases a plea of license to obstrucl (eeepost, "License") may tx dicious. Plea that defendant bad a rigbl of common for cattle l< i tn1 and couchant, justifying under it. Bowen p. Jenkin, 6 Ad. & E. 911. A charge should be new assigned, [b. Plea of approvement o( a common by the owner. Patrick v. Stubbs, !) M. & W. 881. And sccpost, •• Tresp and ante, "Common of Pasture," 496. 1. Denial of Plaintiff '' s Bight of Common. That the plaintiff was not of right entitled to such common of pastor* alleged. 2. Denial of Plaintiff's Possession of the Land, (p) That the plaintiff was not possessed of the said land as alleged. 3. Plea of Right of Common of Pasture. (7 ) That the defendant at the time of the alleged trespass was possessed of land, the occupiers whereof for thirty (V) years before this suit enjoyed as of right, (s) and without interruption, common of pasture over the said land of the plaintiff, for all their cattle, levant and couchant, upon the said laud of tin- defendant, at all times of the year as to the said laud of the defendant apper- taining, and that the alleged trespass was a use by the defendant of the said right of common. (p) Of course the traverse will be in the words of the declaration, negativing the allegation therein. See pleas to a declara- tion by a member of a municipal corpora- tion, Beardsworth v. Torkington, 1 Q. 15. 784; Parry v. Thomas, 5 Ex. 37 ; 19 L. J. Ex. 19S. (g) This form is given by the common law procedure act, 1852 (15 & 16 Vict. c. 76), sch. B, 47. This plea is founded on the prescrip- tion act, 2 & 3 W. 4, c. 71, the provisions of which, in relation to rights of common, have already been cited. Ante, Obs. 496. The form of plea is sanctioned by the 5th section of that act, which, with the decisions thereon, see post, tit. " Ways." See a form for a certain number of cattle, Nichols v. Chapman, 29 L. J. Ex. 461. If the defend- ant have not enjoyed the right of common during any portion of the thirty years next before suit, add a plea of immemorial right ; Bichards v. Fry, 7 Ad. & E. 698 ; Ward v. Bobins, 15 M. '& W. 240; but such immemo- rial right cannot be claimed to exist in occu- piers. Davies v. Williams, 20 L. J. Q. B. 331. See a form, Jones v. Richard, "> Ad. & E. 414, 415. Where a plea claimed an immemorial right of herbage for the defend- ant and his ancestors, it was held that this was not proved by proving a grant eighty- One years ago from one who then had the right. Welcome v. Upton, 5 M. & W. 402 ; VOL. II. 41 7 M. & W. 536; 7 Dowl. -i7;». Bee I: v. Stevens, 31 L. J. C. P. 226. As t<> rights of common in general, and the remedy by action for disturbing them, see " "Common of Pasture," Obs.j Bowen >•. Jenkin, Ad. & E. 911. See the forn pleas in trespass of prescriptive righl common, prescribing in a que < ; Ar- lett v. Ellis. 6 15. & C. 672: 9 I'. C. 671; Tapley v. Wainwright, ."> IV 8 Ad. ::■>:, ; and see various pleadings and points decided thereon. lb. Plea "!' common u . 1'.. 584 ; Bi v. Walker, l-Cr., M.& B. 211. 642 PLEAS I* TORT. COPYRIGHT. 4. Plea of a Right to dig and carry away Marl or Sand, (t) Glover v. Dixon, [9 Ex. 158.] 5. Plea justifying pulling down a Building erected on a Common, (u) Davies v. Williams, 20 L. J. Q. B. 330. 6. Replication denying the Right of Common, (x) That the occupier of the said land did not for thirty [or sixty] years before this suit, enjoy as of right and without interruption the alleged right of common. 7. Replication that the Cattle were not the Defendant's Commonable Cattle. ( t y) Bowen v. Jenkins, 6 Ad. & E. 911. CONSTABLES. See " Trespass to the Person." CONVERSION OF GOODS. See post, « Trover." COPYHOLDER. Plea by a Copyholder justifying taking Coals under a Custom. Anglesea v. Atherton, 10 M. & TV". 218. COPYRIGHT. (z) 1. Plea denying the Copyright. That the plaintiff was not the proprietor of the said copyright as alleged. ft) Other forms, to dig minerals, Pad- 4, c. 71, ss. 5 and 7, a life estate should be dock v. Forrester, 3 M. & G. 903 ; Hoyle v. specially replied. Pve v. MumTord, 11 Q. Coupe, 9 M. &W. 450; Clayton v. Corby, 3 B. 666; 17 L. J. Q. B. 138. Form, &c. Q. B. 813. Pleas, stones ; Peppin v. Shake- Cooke v. Blake, 1 Ex. 220 ; 17 L. J. Ex. 371. speare, 6 T. R. 748 ; coal ; Anplesea v. See post, " Way." < Atherton. 10 M. & W. 281. See Wilkinson (?/) Under this issue the plaintiff cannot v. Fund, 11 M. & W. 33. Plea of common insist on a surcharge. lb. That the right of turbary; Grant ;;. Gunner, 1 Taunt. 435; of common has been extinguished by pro- Wilson i'. Willes, 7 East, 121 ; rijrht of com- ceedings under the general inclosure act mon under inclosure act. Bailiffs &c. of must be replied specially. Parry v. Thomas, Godmanchester v. Phillips, 1 Ad. & E. 554. 5 Ex. 37 ; 19 L. J. Ex. 198. Replication to (u) A commoner may pull down a build- a plea setting up a prescriptive right of ing wrongfully erected upon the common, common, and justifying entry on wrongfully and which prevents him exercising his rights inclosed and separated lands, that they had thereon, provided he use no unnecessary vio- been inclosed and separated more than l ence> twenty years. Tapley v. Wainwright, 5 B. (x) A similar form is given by the com- & Ad. 395. See, also, Hawke v. Bacon, 2 mon law procedure act, 1852 (15 & 16 Vict. Taunt. 156; Richards v. Peake, 2 B. & C. c. 76), sch. B, 54. Peter v. Daniel, 5 C. B. 918. 568 -17 L. J. C P. 177. Under 2 & 3 W. (r) That the book was not first published PLEAS IN TORT. C01*Yl;l<;il I . 2. That the Title of the Book ivas an Attempt t<> impose it on til' lie as the Production of a Celebrated Author, who had not writtt n it. Wright v. Tallis, 1 C. B. 893. Notice to be given with the Pleas in an Action for 'pirating . | a > In the A. B., Plaintiff, C. D., Defendant. Take notice that the defendant means to rely on the trial of tlii> action upon the following objections, viz. : — 1. That he is not guilty of the grievance laid to his charge ; 2. [describe the several points to be relied on in separate para- graphs according to the fact\. (b) Dated in England. Chappell v. Punlav, 12 M. & YV. 303 ; 1 D. & L. 458 ; Boosey v. Purday, 5 Ex. 145 ; 18 L. J. Ex. 378. That the book was printed, published, and sold without the printer's name, eontrary to 2 & 3 Vict. c. 12. Chappell v. Davidson, 18 C. B. 194 ; 25 L. J. C. P. 225. Declaration, law, &c. ante, 368, 498. Not guilty would deny only the mere fact of the infringement of the copyright ; hut it would not deny that the book was the sub- i'ect of copyright property; Millingen v. 'icken, 1 C. B. 799 ; either on the ground of its immoral or irreligious character, or in the case of copyright in designs (mite, 498), that it was not the subject of a certificate of registration under the statute. lb. Other pleas similar to the above would he allowed, denying, 1. That the plaintiff was t lie pro- prietor when the book was printed ; 2. That there was any subsisting copyright in the book ; and 3, stating that the book was not printed in the British dominions. Chappell v. Purday, 12 M. & W. 305 ; S. C. on argu- ment as "to the last plea, 14 M. & W. 303. Plea to declaration for pirating a print, that the date of the first publication was not en- graved thereon. Brookes v. Cock, 3 Ad. & E. 138. A person selling a copy of a print from a spurious plate is liable to an action at the suit of the proprietor under the statute 17 Geo. 3, c. 57, although he sells it inno- cently, not having any knowledge of the piracy. Gambart i-. Sumner, 29 L. J. Ex. 98. No copyright of a book is acquired un- der 5 & 6 Vict. c. 45, by the registration before actual publication. Correspondent &c. Company V. Saunders, 11 Jur. N. S. 540. As to rights of compiler of a direc- tory, see Kelly v. Morris, L. U. 1 Eq. 697 35 L. J. Ch. 423. (a) By 5 & 6 Vict. c. 45, s. 16, it is en- acted, "That after the passing of this act, in any nction brought within the British do- minions against any person for printing any such book for sale, hire, or exportation, or for importing, selling, publishing, i ing to saleor hire, or causing to be imported, sold, published, or exposed to sale or hire, any such book, the defendant, on pleading thereto, shall give to the plaintiff a noti writing of any objections on which he means to rely on the trial of such action ; and il nature of defence be, that the plaintiff in such action was not the author or first pub- lisher of the book, in which he ghall by action claim copyright, or is not the pp tor of the copyright therein, or that some other person than the plaintiff was the author or first publisher of Buch book, or is the pro- prietor of the copyright therein, then tie- de- fendant shall specif \ in Mich notice the name lit' the person who he alleg - to have the author or first publisher of such i •< •■ 'k, or the proprietor of the copyright tin-rein, to- gether with the title of Mich I k and the time when and the place where Mich was first published, otherwise the defendant in such action shall not, at tie- trial or hear- ing of such action, !>• any evidence that the plaintiff in such action was not the author or tirst publisher of the !«mk in which he claims such copyright said, or that he was not the proprietor of the copyright therein; and at such trial or hear- ing" no other objection shall be allowed to be made on behalf of such defendant than the objections Btated in such notice, or that other person was the author or ; lisher ol Mich book, or the proprietor of the copyright therein, than the ]., ill Mich notice, or give in evidence m BUp- port of his defence any other book thai substantially corresponding in title, time, and place of publication with title, time place specified in such notice. - ' (6) See leader r. Purday, 7 C. B • Boosev c. Davidson, 4 D. & L. 147 Purday, hi Jur. 103S ; Sweet v. Ben 16 C B."459. 644 PLEAS IN TORT. DISTRESSES. COUNTY COURTS. See " Trespass to the Person," and " Notice of Action." CUSTOM. Obs. — " It is an acknowledged principle that to give validity to a custom, which has been weD described to be an usage, which obtains the force of law, and is, in truth, the binding law, within a particular district, or at a particular Elace, of the persons or things which it concerns (see Le Case de Tanistry, >aw"> Reports, 31-32), it must be certain, reasonable in itself, commencing from time immemorial, and continued without interruption." Per Tindal C. J. Tyson v. Smith, 9 Ad. & E. 421. Thus, a right claimed by the inhabit- ants "of a township to enter upon the land of a private person, and to take water from a well for domestic purposes, is a good custom. Race r. Ward, 4 El. & Bl. 702; 24 L. J. Q. B. 153. So, also, a custom for all the freemen and citizens of a neighboring city to hold horse-races over the close of M. on As- cension Dav in every year, is good, and in pleading such a custom, it being claimed for "a day certain, it need not be alleged that the day is a seasonable dav. Mounsey v. Ismay, 32 L. J. Ex. 94. See Blewitt v. Jenkins, 12 C. B. N." S. 16; The Marquis of Salisbury v. Gladstone, 6 H. & N. 129; 30 L. J. Ex. 3. See, also, as to void customs, Blackett v. Bradley, 1 B. & S. 140; 31 L. J. Q. B. 65, and the cases there cited; Hilton v. Lord Granville, 5 Q. B. 701; 13 L. J. Q. B. 193; Christchurch v. Buckingham, 16 C. B. N. S. 391. [As to custom for all the inhabitants in one place to exercise rights, as to train horses, at all seasonable times in another, see Sowerby v. Colman, L. R. 2 Ex. 96.] As to custom in a manor to dig and get clay, Salisbury v. Glad- stone, 9 H. L. Cas. 692; 34 L. J. C. P. 222. See, also, Clayton v. Corby, 2 Q. B. 813; and see Elwood v. Bullock, 6 Q. B. 383, cited post, "Way;'" and see a form in replevin, justifying taking cattle under a custom of the Forest of Dartmore, to cause drifts to be made of cattle depasturing in the forest, in order to take them to a pound where it might be ascertained whether they were estrays, &c. Mortimer v. Moore, 15 L. J. Q. B. 118. Plea justifying under a Custom to erect Stalls on a Common at a Fair. Tyson v. Smith, 6 A. & E. 745 ; in Error, 9 Ad. & E. 406. DAMAGE FEASANT. See post, 646, 647, " Distress," " Replevin." DEFAMATION. See^os^, " Libel and Slander." DETINUE. See post, "Trover." DISTRESSES. Obs. — By 11 Geo. 2, c. 19, s. 21, landlords and bailiffs, when sued for making a distress, or seizure or sale thereon, may plead the general issue and give the special matter in evidence. See ante', 286, Obs. This does not extend to a distress made off the premises upon goods fraudulently removed. Vaughan v. Davis, 1 Esp. R. 257; Furneaux v. Fotherley, 4 Camp. 136; Postman v. Harrell, 6 C. & P. 225. But it renders the plea of not guilty " by statute " PLEAS IN TOBT. DISTRESSES. !", Obs. (ante, 286), sufficient in actions on the case for irregularities mi- mitted in making or conducting a distress or sale of goods seized upon the premises demised, and that plea puis in issue the tenancy and the ownership of the goods. Williams v. Jones, n Ad. & E. 648. a distraining who is turned out, and afterwards forcibly reenters, maj pive those fai ti in evidence under that pica, Kagleton v. Gutteridge, 11 M. \ W. 66 D wL N. S. 1056. The tenancy may, however, be disputed by a Beparate plea. \ v. Tearlc, 6 Q. B. 282; and to an action agamsl a Landlord for nol giving ■ copy of the charges, he may plead thai he did nol personally interfere with the distress. Hart v. Leach, 1 M. cS: \V. 560. Plea thai the whole renl de- trained for was due. Gambrell v. Earl of Falmouth, t Ad. & B. 78. W I there is a count in trover, upon which the validity of the distress ah disputed, the plea of not guilty by statute will be Bufficienl by virtue of 11 Geo. 2, but a special plea may sometimes be judicious. The defendant will not in general be allowed to plead not guilty by Btatute, and also justifications whieh exist either at common law or under the statute. Ross v. Clifton, 11 Ad. & E. 640; ante, 286, 287, Obs. It will be proper to pay money into court upon any count or part of a count for an excess or irregularity really com- mitted. By s. 20 of the above act, "no tenant or tenants, lessee or lessees, Bhall recover in any action for any such unlawful act or irregularity as aforesaid, if tender of sufficient amends" hath been made by the party or parties distraining his or her or their agent or agents before such action brought." This tender may be shown under the general issue. But if all the trespasses in the declaration cannot be justified under a dial for rent, then it may be necessary to plead a special justification. See forms Twigg v. Potts, 2 Cr., M. & R. 08; Hooker v. Nye, 1 Cr., M. & EL 258; Neale v. Mackenzie, 2 Cr., M. & R. 84; in error, 1 M. & W. 747; I. add v. Thon 12 Ad. & E. 117. See Welsh v. Rose 6 Bing. 688; 4 M. & P. 184; Whii- worth v. Smith, 5 C. & P. 250. Form of plea and replication where the d< laration charges the removal of fixtures, Twigg v. Potts, supra. The I ancy is a material and traversable fact. Norman v. Whitcombe, 2 M. & W. 357; Bowler v. Nicholson, 12 Ad. & E. 341. The allegation that the ten- ancy continued up to the time of the distress is material. Drewe V. Avery, 13 M. & W. 399; 2 D. & L. 371. Where the defendant pleads specially, the plaintiff, instead of joining i< B. 458 ; man v. Wescombe, 3 M. & W 349 ; A Bowler v. Nicholson, 12 Ad. & E. 341. Sec son ». The Midland By. < SO I Ashmore v. Hardy, 7 C. & P. 501; Cart- 94. Replication, that the remoi Wright v. Smith, 1 Mo. & Rob. 284 ; 2 Saund. fore the rent was due (Kami v. \ 646 PLEAS IN TORT. DISTRESSES. certain messuage at the yearly rent of [£100], payable [half-yearly], and that [£50] of the said rent, for a [half year] of the said tenancy, was then due and in arrear from the said A. B. to the defendant ; and whilst the said rent was due and in arrear from A. B. he fraudulently and clandestinely conveyed away and carried off certain of his goods from the said messuage, to prevent the defendant from distraining the same for the arrears of rent aforesaid, and placed the Bame in the said premises of the plaintiff; and thereupon the defendant, whilst the said rent was due, and within the space of thirty days next ensuing such conveying away and carrying off the said goods, entered into the said premises of the plaintiff, and took and seized the said goods there, as a distress for the said arrears of rent. 3. Plea of Tender of Amends to a Declaration for an Irregular Dis- tress, (d*) That after the committing of the alleged grievances, and before this action, the defendant tendered and offered to pay to the plaintiff £ , as and being sufficient amends for the said alleged grievances, which the plaintiff refused to receive. 4. To a Plea justifying taking Goods under a Distress for Pent ; Replication that they were privileged, as being on the Premises in the Way of Trade, (e) That before and at the time of the making of the said distress the said G. D. was, and carried on the trade and business of, a [coach painter~\ upon the said workshops and premises in the said plea mentioned, and being such [coach painter], the plaintiff -sent to the said G. D. the said carriage, and the said G. D. then accepted the same, for the purpose of the same being painted for the plaintiff by the said G. D., in the way of his said trade and business, for reward to the said G. D. in that behalf, in and upon his said workshops and premises, and it remained thereon in the way of his said trade and business and not otherwise, until the defendants, before the said carriage was painted, and before a reasonable time for that purpose had elapsed, seized and carried away the said carriage and converted and disposed of the same to their own use, as in the declaration alleged. 1 Bine. X. C. 767 ; Watts v. Thomas, 1 Jur. before action brought. In Williams v. Price, 919), in which case the landlord cannot dis- 3 B. & Ad. 695, where in trespass the de- train. See Dibble v. Bowater, 2 El. & Bl. fendant pleaded that he tendered a certain 564; 22 L. J. Q. B. 396. Form of plea, rep- sum, being sufficient amends, it was held liiation, and new assignment, where doors that the plaintiff could reply that the de- broken open under a justice's warrant, fendant did not tender the sum named, or uniler 11 Geo. 2, c. 19, s. 7, which gave land- that the sum was insufficient, and not that Lords power to break open houses, &c. in lie did not tender sufficient amends. See which goods are locked up and fraudulently per Tindal C. J. 3 Bing. N. C. 418 ; see post, secunil. Norman v. Wescombe, 2 M. & W. "Tender of Amends," and ante, Obs. 349. See, also, Rich v. Wolley, 7 Bing. 651. (e) See a similar form in the case of a (>justify- be taken while the animals were actually ing or omitting to plead to an alleged conver- doing damage, or if it be necessary to detain sion, see Taylor v. Cole, 1 II. I'.l. 555, in them to prevent their doing further damage, error; in K. It. 'i T. K. 292. It seems ooti Worner v. Biggs, 2 C. &. K. 31. See forms, essary to nam ■ particularly dea Dye v. Leatherdale, 3 Wils. 20; Singleton close." S,r I',. .ml r. Downton, 2 Ad. v. Williamson, 31 L. J. Ex. 287; 1 Saund. In that case the close was named, and plain- 221, note (1); and see a similar form in tiff replied that the defendant was not pos- trover, Weeding v. Aldritch, 9 Ad. & E. Bessed "of the close in the plea menti 861. For impounding: a railway engine, wherein the -aid pigs were all g Ambergate &c. Ry. Co. v. Midland Ry. eating;" and it was held the plaintifl Co. 23 L.J. Q. B. 17. See a plea under 5 not only bound to prove his po & 6 W. 4, c. 59 (now repealed. See 12 & close or tin- name stated, but that 13 Vict. c. 92 ; and 17 & 18 Vict. c. 60, s. 1), the close in which the cattle justifying selling the animal to pay for hav- As to impounding under certain drcum- ing supplied it with food. Layton v. Hurry, stances, and recovering exp 8 Q. B. 811 ; 15 L. J. Q. B. 214. Some- of sale, see 17 & is \ i r. times it may be necessary to except some of Hurry, 8 Q. B. 811 ; 15 I. J. Q B 648 PLEAS IN TORT. DOGS. Obs. into the close by the defendant. Lyons v. Martin, 8 Ad. & E. 512. Right of common. 1 Saund. 222. See replication that the horse and cart seized were in the actual use of the plaintiff; Field v. Adams, 12 Ad. & E. 649; but be careful in using that form. See Bunch v. Kennington, 1 Q. B. 679. That the cattle were being driven along a road, and the defendant's hedges were de* fective. Goodwyn v. Cheveley, 4 H. & N. 631; 28 L. J. Ex. 298. See Car- rnthers v. Hill, 8 Ad. & E. 113. Replication that defendant sold, by writing, to plaintiff a crop of grass, and entry to cut it ; if the contract of sale was not in writing, license should be replied, to which the defendant might rejoin a countermand. Per Parke B. lb.; and see Wood v. Leadbitter, 13 M. & W. 838. Tender after impounding is no answer to the plea. Singleton v. Wil- liamson, 31 L. J. Ex. 287. OTHER FORMS, JUSTIFYING UXDER A DISTRESS FOR OTHER CAUSES. 1. Plea justifying under a Justice's Warrant for Non-payment of a G-as Rent ; Replication, no Summons before Conviction. Painter v. The Liverpool Oil Gas Light Co. 3 Ad. & E. 433. 2. For Parochial Rates. Burrell v. Nicholson, 6 C. & P. 202. See the forms for avowries for ditto, post, " Replevin." many of which may easily be adapted to pleas for trespass. 3. For a Rate under an Inclosure Act. Haggerstone v. Dugmore, 1 B. & Aid. 82. 4. For a Sewer's Rate. Wingate v. Waite, 6 M. & W. 739 ; and see Ramsay v. Nonabell, 11 Ad. & E. 383. 5. For a Rate for Surveyor's Salary, under 13 Geo. 3, c. 78. Morell v. Harvey, 4 Ad. & E. 684 ; and see 5 & 6 W. 4, c. 50, s. 29. 6. For a Fine for Contempt of Court. Aldridge v. Haines, 2 B. & A. 395. 7. Seizure of Defective Weights under Authority of a Leet. Sheppard v. Hall, 3 B. & A. 433 ; Wilcock v. Wridler, 2 B. & A. 395. DOGS. See " Mischievous Animals." 1. Plea justifying taking a Trespassing Dog. Bunch v. Kennington, 1 Q. B. 679. 2. Plea justifying settling Dog Spears. Jordin v. Crump, 8M.&W. 782. PLEAS IN TORT. ESOA?] 648 3. Plea justifying shooting a Dog for trcHjnixsing on Plaint 'use after Notice to the OtffTU r. Cann v. Facey, I Ad. & E. C8. 4. The Like for attacking Plaintiff. Morris v. Nugent, 7 C. & P. 572 ; Clark p. Webster, 1 C. & P. L06. 1 Saund. 84 ; 2 Lutw. 1494. 5. The Like for worrying Sheep. 3 Chit. PI. 7th ed. 356 ; 1 Saund. 84 EASEMENTS. Obs. — Not guilty would deny the mere fact of obstruction, admitting the plaintiff's title or possession of the tenements in respect of which the easemenl is claimed, or the right to the easement itself. Frankum v. Lord Falmouth, 2 Ad. & E. 452. It is necessary to plead specially where the defence is that the trespasses an justifiable by virtue of the defendant's right to an easement, as a righl of common, watercourse, or way, &c. in the locus in quo. Litt. Com. Dig. Pleader, E. 15; 2 Saund. 402, note (1). In case for disturbance of an easement, a general form of declaring on the plaintiff's / allowed, see tit. " Ancient Lights," ante, 481, 482; " Com i," ante, I "Watercourses," ante, 628; "Ways," ante, 681; and notes, [b. the late prescription act it was necessary in a plea to Bel forth the title to an easement specially by immemorial prescription in a que estate; bul that act authorizes a general form of plea, founded on and showing only an uninter- rupted use or enjoyment of right for the required number of years, Bee tit. "Common," ante, 640; and part, "Watercourses;" " Wa; See tit. "Easements," ante, 513; and various claims to easements, 1 Chit. PL Index, tit. "Prescription." > EQUITABLE PLEAS. Ante, 370. ESCAPES. Obs. — See ante, 595, tit. " Sheriff." " In actions for an escape, ' not guilty ' will operate as a denial of the neglect or default of the sheriff or his officers, but not of the debt, judgment, or preliminary proceedings." Et <;. T. T. I - r. 16. Thus, in an action for not taking a debtor when the Bheriff had an opportunity, the general issue would deny the opportunity. Guesl v. El 5 Ad. & E. 118. See Howden v. Standish, 6 C. B. 504; is L. J. C. P. Under that plea might also be Bhown the appointment of a Bpecial bailiff. Forde v. Leecke, 6 Ad. & E. 699; Cobbetl v. Brown, 6 DowL 1 be escape itself would, therefore, be in dispute under that plea. A- to what is an escape, see Rose. Ev.; [Whithead v. Keyes, 1 Allen. 850; 8. I en, 495.] Therefore there must be separate Bpecial pleas denying: I, the i gations of the debt stated to be due from the defendanl in the original a 2, the affidavit for the arrest; 8, the judge's order thereon; i. the writ capias issued thereon; 5, the indorsement on it: 6, its delivery to the snerifl to be executed (as to which Bee Woodland v. Puller, H A.I. \ 7, the arrest itself, where any Buch matter of inducement is meant in issue. See forms, 3 Chit. PL 262 267. A plea of recaption mui special. See 8 & 9 W- 3, e. 27, s. 6; Jackson v. Hill. 1" Ad. ft B 650 PLEAS IX TORT. ESCAPES. Obs. In an action for an escape on fnal process, the defendant may plead the four last pleas, and also deny the judgment, which he may impeach, if the origi- nal debtor could have done so. Lane v. Chapman, 11 Ad. & E. 966. The protection which a certificate of registration of a deed under the bank- ruptcy act, L861, affords to a sheriff who has discharged a debtor, does not end to process issued in respect of debts accruing due after the date of registration of the deed. "Williams v. Rose, L. R. 3 Ex. 5; Di^nam v. Bailey, W. X. 1 B68, Q. B. 18; [37 L. J. Q. B. 71.] 1. Plea to an Action against the Sheriff for an Escape, or for not taking a Person on Mesne Process, that he was not indebted to Plaintiff. GO That the said E. F. was not at the time of the issuing of the said writ of capias indebted to the plaintiff in the said sum of £ , as alleged. 2. Plea to an Action against the Sheriff for an escape on Mesne Proc- ess, that he took a Bail Bond which he assigned to the Plaintiff. See Holden v. Raphael, 4 Ad. & E. 228 ; Mendez v. Bridges, 5 Taunt. 325. 3. Plea that the Escape was by the Fraud, $c. of the Assignee of the Judgment. Hiscocks v. Jones, 1 M. & Mai. 260 ; and see Merry v. Chapman, 10 Ad. & E. 516. 4. Plea that the Escape was without the Knowledge of the Defendant, and that the Debtor voluntarily returned into Custody. Form held bad for not averring that the defendant was ignorant of where the debtor was during any period of his absence. Davis v. Chapman, 5 Bing. N. C. 453 ; and see 2 M. & G. 921 ; 9 Dowl. 645. 5. Plea showing that the Custody of the Prisoner was not legal. Constant v. Chapman, 2 Q. B. 771. 6. Plea that the Debtor was discharged bg a Bankrupt Commissioner under 5 $ 6 Vict. c. 116, and 7 >f tin- | ceedincs in ejectment to the defendant, or thai a writ of p ted or executed. Wilkinson v. Kirov, 15 C. B. 480; 28 L. .1. C. I'. 224. estoppel may be replied to a plea of liberum tenementum. Feveraham >-. Emerson, [11 Ex. 385.] See form of replication, Doe v. Wright, 17 Ad. & E. 763. EXECUTION. Seepost, "Trespass to the Person."' FAIRS. See "Market." FALSE REPRESENTATION. See " Fraud. " FENCES. Plea in Trespass for entering Close and with Cattle depasturing, £c. that Defendant's Cattle escaped from his adjoining Land '/>>■■. u,,h the Defect of the Fences of Plaintiff's Close, which //-• ought to have repaired. [That at the time of the alleged trespasses he was posses-. ,1 of a close adjoin- ing the said close of the plaintiff, and the plaintiff and all other tin- tenants and occupiers of the said close of the plaintiff then ami at all times of right ought to have maintained and repaired the places between the said clo- the defendant and the said close of the plaintiff, so as to prevent rattle law- fully being and depasturing in those closes respectively from escaping out of the one into the other of them through defects of the said fences ; and because the said fences at the time of the alleged trespasses una- ruinous and in di for want of repair thereof, the said cattle then lawfully being and depasturing in the said close of the defendant escaped out of the said do-,- of tin- defend- ant into the said close of the plaintiff through tin- defects of tin- said 1 between the said closes, and were in the said .lose of tin- plaintiff, which are the alleged trespasses.] If the plaintiff's case be thatdefendant turned the cattle on tin- bcu» in . or that they were wrongfully put and left in a highway adjoining, 2 H. Bl. 527 ; 2 Saund. 284; or were unruly, &c the replication should be special. See another form, Carruthers v. Hollis, 8 M. & W. 111. >> 516. 652 PLEAS IN TORT. FRAUD. When the owner or occupier of copyhold inclosure is liable for injuries caused by non-repair of fences. Barber v. Whiteley, 34 L. J. Q. B. 212. FISHERY. Plea justifying fishing Oysters in a Navigable River. Mayor of Maiden v. Woolnett, 12 Ad. & E. 13. See other forms, 3 Chit. PI. 370, and in the cases referred to in Harr. Index, tit. Fish ; and Mayor of Colchester v. Brooks, [7 Q. B. 339 ;] Holford v. Bailey, [8 Q. B. 1000 ;] Manuall v. Fisher, 5 C. B. N. S. 856; [Shuttleworth v. Le Fleming, 19 C. B.N. S. 687;] ante, 517. FIXTURES. See post, " Landlord and Tenant." FRAUD. Obs. — In actions for fraudulent warranty, as for deceit on a warranty of a horse, not guilty denies both the fraudulent warranty and also the unsoundness, but not the bargain and sale. Spencer v. Dawson, 1 Mood. & R. 552. Where, however, the sale is not alleged as inducement, and is not capable of separa- tion from the misrepresentation and deceit, it would appear that all those facts are denied by not guilty; Mummery v. Paul, 1 C. B. 316; 2 D. & L. 582; as in an action for misrepresenting the value of a business sold by assignment of a lease. lb. See, also, Evans v. Collins, 12 L. J. Q. B. 339; 5 Q. B. 805. In any case the terms of the misrepresentation would seem to be in issue under that plea. Mash v. Denham, 1 Mood. & Rob. 442. In cases where the scienter is the gist of the action, it is denied by not guilty. Thomas v. Morgan, 2 Cr., M. & R. 496; post, " Mischievous Animals." See the decla- rations, ante, 518, &c. In an action for falsely representing a third person to be trustworthy, the defendant cannot plead specially that the representation was not in writing and signed by the defendant according to 9 Geo. 4, c. 14, s. 6. Turnley v. M'Gregor, 6 M. & G. 46. See the Observations, ante, 394, " Frauds, Statute of." See several pleas in Lyde v. Bernard, 1 M. & W. 101 ; and Langridge v. Levy, 2 M. & W. 519; but, semble, they all amount to not guilty. A person by his acts causing another to believe that he is the pur- chaser of goods, may be precluded from disputing that he is not, although his acts were not intended to induce that belief. Cornish v. Abingdon, 28 L. J. Ex. 262; [4 H. & N. 549.] As to damage, see Eastwood v. Bain, [3 H. & N. 738;] Mullett v. Mason, L. R. 1 C. P. 555; 39 L. J. C. P. 299. ["It is now well settled that, in actions for deceit, or breach of warranty, the meas- ure of damages is the difference between the actual value of the property at the time of the purchase, and its value, if the property had been what it was represented or warranted to be." Gray J. in Morse v. Hutchins, 102 Mass. 440; Re^gio v. Braggiotti, 7 Cush. 166; Stiles v. White, 11 Met. 356; Jones v. Just, L. R. 3 Q. B. 197; Dingle v. Hare, 7 C. B. N. S. 145; Loder v. Kekule", 3 C. B. N. S. 128; Bartlctt v. Blanchard, 13 Gray, 429; Tuttle v. Brown, 4 Gray, 457; Goodwin v. Morse, 9 Met. 278; Whitmore v. South Boston Iron Co. 2 Allen, 52; Grose v. Hennessey, 13 Allen, 389; Brown v. Bigelow, 10 Allen, 242; Houghton v. Carpenter, 40 Vt. 588; Woodward v. Tfiacher, 21 Vt. 580; Muller v. Eno, 4 Kernan, 597; Cary v. Gruman, 4 Hill, 625; Sharon v. Mosher, 17 Barb. 518; Voorhees v. Earl, 2 Hill, 288; Worthy v. Patterson, 20 Ala. 172; Sherwood v. Sutton, 5 Mason, 1; Moul- ton v. Seruton, 39 Maine, 287; Overbay v. Lighty, 27 Ind. 27; Cothers v. Keever, 4 Barr, 168; Fisk v. Hicks, 31 N. H. 535; Page v. Parker, 40 N. EL 47. Where the warranty is fraudulent, the vendor is responsible for all the PLEAS IN TORT. IN1'AN< V Obs. consequences of the plaintiff acting upon the faith of the warranty; il where the defendant Bold a cow, and fraudulently warranted it to when he knew it to have an infectious disease, and the plaintiff placed it with other cows, which caught the disease and died, the plaintifl was hi Id • to recover as damages the value of all the cows. Mullen v. Mason, L. EL l C. P. 559. A like case is Bradley v. Etea, 1 1 Allen, 20.] Plea denging the Bargain and Sale in Case for a False Warra or Fraudulent Misstatement. (It) That the plaintiff did not bargain with the defendant to buy of him, nor did the plaintiff buy of the defendant, the said , upon the terms and in man- ner alleged. GAME. Post, " Trespass to Realty," ante, 603, " Shooting." GENERAL ISSUE. Ante, 636, "Not Guilty." HIGHWAY. Ante, 527; post, " Way." HOUSES. See "Nuisances," "Reversion." HUNDRED. Pleas in an Action against the Hundred for Damage done by Rioti r«. Obs. — Ante, 527. The defendants might plead denying the riot, the beginning to demolish, &c. the examination of plaintiff before a justice, or his entering into recognizances to prosecute. They might also plead that (hough plaintiff knew one of the rioters, he did not disclose his nana- to the justice, or that the damage did not exceed £30. See several of these pleas, Birley v. Sal- ford Hundred, 11 M. & W 391. HUSBAND AND WIFE. Ante, 146, 272, and note (7), 401, 528. IMPRISONMENT. Post, " Trespass to the Person. INFANCY. Obs. — Ante, 14, 406. An infant can only appear to defend by guardian. Arch. Pr. invoc. If an appearance be entered for an infant in his own name, the court will set it aside, but will require him to nndertake to appear bj guar- dian; Leech V. Clabburn, 21 L. J. Ex. 37; and that even after jo Ih) See form, &c. Shepherd v. Pybus, 3 horse sound, Ac. cause and procure plain- M. & G. 870; and another traverse "that tiff to agree to sell, 4c ; ted .- U to tins defendant did not by warranting the said latter plea, ante, Ob>. 654 PLEAS IN TORT. JUDGMENT RECOVERED. Obs. the plaintiff . Kennedy, 2 B. & P. 70; but must be specially pleaded. Day v. Porter, 2 M. & Rob. 151. But a provocation, though not arising at the time of the trespass, goes in mitigation of damages, and may therefore be given in evidence under not (i) Not guilty would deny the breach of true. Pleas, that the loss arose from the duty or wrongful act only. That plaintiff plaintiff's neglect, &c. 3 Chit. PI. 7th ed. brought goods into the inn, being matter of 260, and other pleas referred to in the cases inducement, should be specially denied if un- cited, ante, 531. PLEAS IN TORT. LANDLORD AND TENANT. Obs. guilty. Frazer v. Berkeley, 2 Mood. & Rob. 3. The qui L hai held that it is no answer to an action in case for an exi that a verdict has been obtained for a trespass for the Bami Bainbridge v. Bonrne, Nov. 1846, See form of plea of jud m< in admiralty court, Harris r. Wllles, 15 C. B. 71": 24 L. J. I also, Nelson v. Couch, [15 C. 15. N. S. 99;] 83 L. J. C. P. 16, and Obs. [Foreign judgment against plaintiff Ln respect of the General Steam Nav. Co. v. Guillou, 11 M. >">:. \V. B78.] S Buckland v. Johnson, 15 C. P. 145; Cooper v. Shepherd, 8 C. B. 2 LANDLORD AND TENANT. Obs. — In actions for irregular distresses, the plea of not guilty " by statu). 286, would generally suffice; ante, "Distresses," 644; and that plea would deny the tenancy and the ownership of the. goods. Williams i\ Joni . 11 Ad." & E. 643. In an action for an injury to a reversionary inter* guilty would admit the tenancy as laid in the declaration, and that the prem- ises were in the possession of the tenant named, the demise t<> him by the plaintiff, and that the reversion belonged to the plaintiff; Elaine v. Alderson, 4 Bin". N. C 702; it would deny ^ie actual commission of thi I injury charged, as waste, &c. but not that they were acts of a wrongful character. Bacon v. Smith, 1 Q. B. 364, note (a); Frankum v. Lord Falmouth, l A I. 8k E. 452. In an action for continuing a nuisance to plaint ill's reversionary interest it would merely deny the fact of continuing it, but would admit that it was wrongfully continued, if at all. Greenfield i>. Edgcombe. 11 L. J. Q. B. 322. In actions for waste it is necessary that there must be a constant diminution of the value of the estate, or an increased burden upon it. or an impairing of the evidence of title. Huntley v. Russell, 13 Q. B. 588; "and sec, further, Co. Litt. 546; Bac. Ab. Waste, G* 3. A yearly tenant is bound to keep and leave the premises wind and water-tight, and to use them in a tenant-like manner. Ferguson's Esp. Horsefallu. Mather, Holt N. P. 7; Pomfret v. Ricroft, 1 Win. Saund 323 a. See " Distresses," " Reversion," " Effect of Not Guilty," ante, 286, " Declara- tions," ante, 535. 1. To a Count for an Injury to Plaintiff's Reversion, Picas denying 1. The Possession of the Property by the Tenant of Plaintiff ; 2. Tiiat the Reversion was in Plaintiff. That the said [messuage] was not, nor was any part thereof, in the ; session or occupation of the said E. F. as tenant thereof to the plaintiff, ( alleged. That the reversion of the said premises with the appurtenances, or any part thereof [or of the said several things, or any of them, so fixed, fastened, and set up in or upon the same as aforesaid], was not in the said plaintiff, nor did the same belong to him, as alleged. 2. Landlord against Tenant, for Waste, $c. Plea denying tl ancy. That he did not become tenant of or hold or enjoy the said dwelling-hi (k) If there be a written demise, it must 465; Strothex v. Barr, 5 Bing be produced and proved, it seems, by the Merthyr Tydvil, IB plaintiff. See Cotterill v. Hobby, 4 B. & C. 656 PLEAS IN TORT. LANDLORD AND TENANT. [or messuage and premises], with the appurtenances or any part thereof, as tenant thereof to the plaintiff, on the terms (I) alleged. 3. Plea to a Count by a Landlord for injuring a House, and removing Fixtures, that they were put up by the Tenant for the Purposes of his Trade, (m) And for a plea as to the pulling down, prostrating, and destroying the said oven, and pulling down, prostrating, damaging, and destroying a small part of the said walls, partitions, and other parts of the said messuage, the defendant Bays that the said W. H., before and at the said times when [<£c], was law- fully possessed of the said messuage, and long before and at the said several times when [#c], had used, exercised, and carried on, in and upon the said messuage, the trade and business of a baker, the said messuage with the appur- tenances having before that time been let and demised to him for the purpose of his using, exercising, and carrying on his said trade and business therein as aforesaid ; and that he the said TV. H., in the course of his said trade and busi- ness, and for the purpose of carrying on the same in and upon the said mes- suage as aforesaid during the said tenancy, before the said times when [#c], set up and erected in and upon the same the said oven in the declaration men- tioned, in a due, careful, usual, and proper manner [and in such a manner that the same could be removed without doing extensive or substantial damage to the said messuage], doing as little damage as possible to the said messuage upon that occasion. And the defendant further saith, that the said TV. H., being so possessed of the said messuage, and so using, exercising, and carrying on his said trade and business therein, he the defendant, during the said ten- ancy, to wit, at the said times when [$•: Yin. Al. Manley, 1J Ad. 8c The revocation may be specially replied. Adams V. Andrews, 15 ',> I vol. ii. 42 658 PLEAS m TORT. LIBEL AND SLANDER. Obs. 20 L. J. Q. B. 33. Evidence of a license. Feltham v. Cartright, 5 Bing. N. C. 56r>. Where a license to take possession is part of the original bargain in a demise of property, that should he specially pleaded, as it cannot In' relied (in under tin- general plea of license (Tompkins r». Lawrence, 8 C. & P. 781; Hammond v. Colls, 3 C B 212; 14 L. J. C. P. 288), unless the deed contain a clause authorizin'_ r the above form. Kavanairh r. Gudge, 1 D. & L. 928: 7 M & (i. S16. Where there are several trespasses laid in the declaration, and the defendant pleads license, it seems that he must prove a license commen- surate with and covering all the trespasses proved upon the declaration, and will tail as to Buch as are not shown to have been licensed, and that in such case a • to assignment is not necessary. Barnes v. Hunt, 11 East, 451; Hay- ward r. Grant, 1 C. & P. 44S. But in Bracegirdle v. Peacock, [8 Q. B. 174:] 15 L. J. Q. B. 73, Patteson J. expressed a doubt whether those cases could supported; and see 1 Saund. 300, /, g. In general a replication or new assignment of excess is not necessary. Symons v. Hearson, 12 Price, 369, un- less the plaintiff goes for substantial damages for what in the declaration is onlv laid as aggravation, such as an assault committed with an entry into a house, &c Kavanagh v. Gudge, supra. Where the trespass is a continuing one. the plaintiff may deny the license, and also new assign. Loweth v. Smith. 12 M. & W. 582; 2 D. & L. 212. It seems that where there has been a revocation of the license before the .trespass, it should he replied. See 1 Saund. 300 a, 2 lb. 5, note (3); Feltham v. Cartright, 5 Bing. X. C 569. Acquiescence to a trespass may be pleaded on equitable grounds. Davies v. Mar-hall. 31 L. J. C. P. 61; [10 C. B. N. S. 697. See Bankart v. Ilaughton, 27 Beav. 425; Cotching v. Basset, 32 Beav. 101; Johnson v. Wyatt, 2 De G., J. & S. 18.] 1. Plea of Leave and License, (n) That he did what is complained of by the plaintiff's leave. 2. Replication of a Revocation of the Leave and License. That before the grievances complained of the plaintiff revoked the said leave and license as the defendant well knew. LIBEL AND SLANDER. Obs. — See the notes and observations to the declarations, ante, 538. "In an action for slander of the plaintiff in his office, profession, or trade, the plea of not guilty will operate in denial of speaking the words, of speaking them maliciously, and in the defamatory sense imputed, and with reference to the plaintiff's office, profession, or trade; but it will not operate as a denial of the fact of the plaintiff holding the office, or being of the profession or trade alleged." R. G. T. T. 1853, r. 16. The same principles apply to libel, as not guilty denies that the words were used on an unjustifiable occasion. Per Parke B. O'Brien v. Clement, 15 L. J. Ex. 285. [On certain occasions a person is privileged to write or speak according to the best of his belief, and he is not liable to an action for matter written or spoken on such privileged occasions, although it be false; unless he has written or spoken maliciously in fact and not by reason of the privilege, as where he has asserted false "and defamatory matter knowing it to be false. On such occasions of privilege it is not sufficient for the plaintiff to prove the falseness of the matter merely, but he must also show that the defendant acted or spoke on the occasion with a malicious intent. Taylor v. Hawkins, 16 Q. B. 308; Hemmings v. Gasson, Eh, Bl. & El. 346.] Under the plea of not guilty the defendant may show facts tending to negative the malice such as that, though really false, the words, were used bond fide, and in the belief of their truth by way of a privileged communication. Lillie (n) Form given by the common law procedure act, 1852 (15 & 16 Vict. c. 76), sen. B, 44. PLEAS IN TOUT. LIBEL AND SLANDER. Ons. v. Price, 5 Ad. & E. 645; Homing v. Trenery, 9 Ad. \ I. Smith, 1 II. & X. 181. " A communication made bona in which the party i ununicating baa an interest, or in ref< has a duty, is privileged it made i<> a person having a com ipon or (Iiiti/, although it contains criminatory matter, which, with lege, would he slanderous and actionable;" Harrison . B I I 348; Soiimurville v. Hawkins, 10 C. B igood v. Spyring, l I &E. 181; [Krehs v. Oliver, L2 Gray, 248; Klinch v. Colby, 16 N . Whitelej v. Adams, L5 C. B. X. S. S92; Fryer v. Kinnersley, i . < B N 422; Force v. Warren, L5 C. B. X. 8. 806; Swan v. Tappan I .. 104; Gassett v. Gilbert, 6 Gray, 94; Bro* v. Hathaway, L3 Allen, 289; Hatch Lane, 105 Mass. 394; Xott v. Stoddard, 88 \ i. 25; Mayor v. Sample, Iowa, 806; Fowle v. Bowen, 3 Tiffany (X V). 24; Dale v. Han Mass. 193; 1 Chitty PL 519, 520, and notes; Smith v. Kerr. I Edm. (N. Y.) Sel. Cas. 190; Lawler v. Earle, 5 Allen, 22; ■• Joannes " v. Benni • A 1G9; as a complaint to a person thai hi- property had been Btolen by another made in a proper quarter to obtain redress; Toogood v. Spyring, i Cr., M. & R. 181; Amann v. Dainm, 8 C. B. N. S. 597; or made to the Buppo thief himself , though in the presence of a third party; Toogood v. Spyring, 1 Cr., M. & R. 181; Padmore v. Lawrence, 1 Ad. & E. 880; <>r made to I servants of the complainant by way of warning. Sommerville v. Hawkins, 10 C. B. 583. The privilege is nol defeated by the mere facl that 1 1 » * - -t nients were made in the presence of others than the parties immediately in- terested; nor that they were intemperate or excessive from over excitement. Wells J. in Brow v. Hathaway, 13 Allen, 242; Manby v. Witt, L8 C. B. 544. But see, as to excess, Erie C. J. in Fryer v. Kinnersley, L5 C. B. X S i-"-'. 431. As to the communications of a mercantile agency, Bee Beardt Tappan, 5 Blatchf. C. C. 497; Jeffras v. McKillop, 4 X. Y. S ip. I . (1874) 578; Ormsby v. Douglass, 37 N. Y. 477. The occasion of privilege is a q tion for the judge; the existence of express malice i- one for the jury. v. Wildes, 5 El. & BL 328; Huntley v. Ward, 6 C. B. N. S. 514; Cowlei Potts, 34 L. J. Q. B. 247.] In cases of privileged communications, if the plaintiff prove express malice, the defendant may be deprived of the privilege. Pearson o. Le Maine. 5 M. & G. 700; Harris v. Thompson, 13 C. B. 333; Taylor v. Hawkins, 16 Q B. [" The law is, that, if the plaintiff gives evidence from which the jury may infer malice, — which I take to mean, if he casl imputations which he did nol believe to be true, or was acting from sinister or corrupt motives, and not with the bona fide intention of discharging a duty social or moral, the plain- tiff may sustain the action, notwithstanding the words Were Bpoken upon occasion which prima facie justified them. viz. in answer to an inquiry." Erie C. J. in Jackson v. Hopperton, 1G U. B. X. S. 829, 837. - p.Douglass, 37 X. Y. 477; Garrett v. Dickerson, 19 Bid. U8 I libel it- self ma"v he evidence of malice. Gilpin v. Fowler, 9 Ex. 615.] The ruli privileged communications does not justify defamatory comments <>n thi tive orconduct of the plaintiff. Tuson v. Evans, 12 Ad. & E. 1 Holt v. Parsons, 23 Texas, 9. The only effect of privilege on actionable words is to rebut the legal inference or presumption of malice, and to that ex- tent constitute an answer to an action upon them. Garrett o. Dickerson, 19 .M.I. 418. The burden is then shifted and rests on the plaintifl to Bhow ex- press or actual malice. Hagan v. Hendry, 18 Md. 177. The plaintifl prove statements made by the defendant subsequently to the libel, as to show malice in the defendants at the time of its puhlication. Hemminga v. Gasson, 1 Eh, BL & EL 846.] . A letter written confidentially by B. to persons who employed A. as their - itor, containing charges injurious to his professional character in I agement of their affairs in which B. was also interested, was held to be privi- leged. McDougall v. Claridge, ] ('amp. 267. But where a ma frrst letter withoui a previous application, and then a sec 1 in answ« quiries made of him as to plaintiff's character, the jury found that tli munication was maliciously made, and the court upheld the rerdict I son o. Jones, 8 B. & C. 578. The court of common pleas were equally divided m opinion U Her it is 660 PLEAS IX TORT. LIBEL AND SLANDER. Obs. actionable, honestly, and with reasonable ground of belief that it is true, to I inteer information (otherwise libellous) to a stranger affecting the inter- ests of the latter where the danger to him is not imminent. Coxhead v. Rich- ards, 2 C. B. J*J!». [See Krebs v. Oliver. 12 Gray, 243.] But such a commu- nication to another to protect a man's own interests, would not be actionable. Blackham v. Pugh, 2 C. B. 611. [Confidential communications made by way of advice to protect the interests of the persons to whom they are made, at their request, are privileged: as the character of a servant given to a person asking it; Weatherstone y. Hawkins, 1 T. It. llo: Child v. Affleck, 9 B. & C. 403; or the voluntary commun' tion to the latter of a fact subsequently discovered; Gardner r. Slade, 13 Q. B. 796; and the presence of a third person on such occasions does not take away the privilege. Taylor v. Hawkins. 16 Q. B. 308; Manby v. Witt, 18 C. B. 544. It would seem that such statements voluntarily made to a person respecting the conduct of a person in his employ, or whom he was likely to take into his employ, or with whom he is otherwise connected, are privileged. - e Pattison v. Jones, 8 B. & C. 578; M'Dougall v. Claridge, 1 Camp. 267. And see Coxhead v. Richards, 2 C. B. 569; Amann v. Damm, 8 C. B. N. S. 597. A statement of opinion made to a trade-man in answer to his inquiry respecting the handwriting of a fictitious order for goods, which purported to have been sent by the person making the statement was held to be privileged. Croft v. Stevens. 7 H. & X. 570. A character of a person who was a candi- date for the office of trustee of a charity given to a person canvassing on hi< behalf, was held privileged. Cowles v. Potts, 34 L. J. Q. B. 247. A clergy- man is not privileged in circulating imputations on the character of a person about to set up a school in his parish. Gilpin v. Fowler, 9 Ex. 615.] The defendant gave notice to his footman and cook, who separately went to him and asked him his reasons for discharging them; he told each (in the absence of the other) that he or she was discharged because both had been robbing him. This was held to be privileged. Manby u. Witt, 18 C. B. 51 1 ; and see Frver v. Kinnersley, 15 C. B. X. S. 422: Whitely v. Adams, 15 C. B. X. S. 392. A petition presented to the secretary for war by a creditor of an officer in the army, bond fide with a view of obtaining the payment of a debt, and contain- ing a statement of facts, which, though derogatory to the officer's character, the creditor believed to be true, is not libellous. Fairman v. Ives, 5 B. & A. 642; Woodward v. Lander, 6 C. & P. 548. Xor is an application by a bor- ough elector to the secretary of state, imputing misconduct to a magistrate. Harrison v. Bush, 5 El. & El. 344; and see Blagg v. Sturt, 10 Q. B. 899. Xor a representation to the postmaster-general, respecting the conduct of a person under him when made bond fide. Woodward v. Lander, 6 C. & P. 588; and see, also, Beatson v. Skene, 5 H. & X. 838; 29 L. J. Ex. 430. [Complaints made to a wife of the conduct of her husband are not privileged. Wenman v. Ash, 18 C. B. 836.] A report of an examination in bankruptcy is privileged. Ryalls v. Leader, L. R. 1 Ex. 296. Words spoken by an M. P. in parliament; [Rex v. Creevey, 1 M. & S. 278; Lake v. King, 1 Wms. Saund. 131 b; Stockdale v. Hansard, 9 Ad. & E. 1; Campbell J. in Davidson v. Duncan, 7 El. & Bl. 229;] or by a judge or counsel; Hodgson v. Scarlett, Holt's X. P. Ca. 621; 1 B. & A. 232; Revis v. Smith, 18 C. B. 126; [Mackav v. Ford, 5 H. & X. 792; Xeedham v. Dowling, 15 L. J. C. P. 9; Jekyll v. Moore, 2 B. & P. X. R. 341;] or witnesses in a legal proceeding; [Revis v. Smith, 18 C. B. 126; Henderson v. Broomhead, 4 EL & X. 569; Dawkins v. Lord Rokeby, House of Lords, 2 Central Law J. 491 ; Barnes v. McCrate, 32 Maine, 442; Dunlap v. Glidden, 31 Maine, 485; Calkins v. Sumner. 13 Wise. 193; Osborne v. Forshee, 22 Mich. 209; White v. Carroll, 42 X. Y. 161; see Cook v. Cook, 100 Mass. 194;] are privileged; or by a coroner in addressing a jury impanelled before him; Thomas v. Chur- ton, 2 B. & s. 175; 31 L. J. n. B. 139; or by a man for the purpose of ob- taining redress; King v. Sew. -11, :s M. & W. 297: Finden v. Westlake, M. & M. 461 : or forwarding the ends of justice, as giving a man in charge; John- son v. Evans, 3 Esp. 32; and see Force v. Warren, 15 C. B. X. S. 806; or where the words are used honestly (Kelly v. Partington, 5 B. & Ad. 645), by PLEAS IX TORT. LIBEL AND BLANDEB. Obs. way of advice to persons asking it, or who have a right toexpe I it 'I v. Spyring, i Cr., .M. >s; R. 181; Warren v. Warren, i Cr., M. 81 I: in answer to an inquiry; but not officious gossip, Etumsej v. Web M. 104, respecting the character of h servant, 8cc. Fountain 1 B B. 5; Child v. Affleck, 9 B. & C. 408; and see Eellj 0. Pai Where A. was trustee of a charity, and also a bailifl to B., B ■ ■. with C. in reference to the trusteeship, when C. said A. was a id bad been guilty of discreditable conduct, Sec. all thai was said navii to A.'s trustworthiness as a trustee, and B. in consequence of 1 1 * ■ — di \. from his employment; tl >urt held this to be a privileged communi Cowles v. Potts, 84 L. J. Q. B. 247. When- words are used by a person b ing an interest in the transaction to which they relate (Tuson 0. E i, L2 Ad. & E. 736), to another person interested in conducting it ; Padmori Law- rence, 11 Ad. & E. 380; or by a person having sustained a sunn 1 ance to a person believed capable of redressing it (per Cresswell J. B ackham v. Push, 15 L. J. C. P. 293; 2 C. B. 611), they are privileged; but accordi to a decision of the queen's bench such application, to be privileged, must be to a competent tribunal, having jurisdiction in the subject-matter; Bis irt, 16 L. J. Q B. 39; 10 Q. B. 905; Affidavit in exchequer chamber, June L847. ["The decisions, ancient and modern, are uniform, that no proceeding in a regular course of justice is to lie deemed an actionable libel." Metcali J. in Kidder v. Parkhurst, 8 Allen, 393; Cutler 0. Dixon, 1 Co. 11 b; Lake v. King, 1 Saund. 181; Watson v. Moore, 2 Cush. 188; Hill v. M I N. BL 14.] To say of a clergyman that he came to perform divine Bervice in a tow- ering passion, &c. is libellous. Walker v. Brogden, L9 C. B. X- S. A plain account of the proceedings of a court of justice is not a libel; Carry v. Walker, 1 B- & P. 525; Smith v. Scott, 2 C. & K. 580; Boare v. Silver- lock, 9 C. B. 20; Woodgate». Ridout, 4 F. & F. X. P. R. 202; I Scotl J. in Cincinnati &c. Co. v. Timberlake, 10 Ohio N. S. 548; Lewi- v. Lew. 1 LI., Bl. & El. 537; Cosgrave v. Trade Auxiliary Co. 8 Irish R. C. L. 849. , Nor is fair newspaper comment on a place of public entertainment Bignell v. Buzzard, 3 H. & N. 217; Dibdin v. Swan. 1 Esp. X. P. C. 28. Fair literary criticism is also privileged. Carr v. Hood, 1 Camp. 855; [Tabart 0. Tipper, 1 Camp. 350.J Criticism on handbills and placards. Paris v. Levy, 9 < '. B. N. S. 342. But it is said the sermons of a clergyman publicly preached are not the subject of comment; Gathercole 0. Myall. L5 .M. & W. 81 '. quaere; and as to comments on sermons published in newspapers, and provo- cation by plaintiff, see Kelly v. Sherlock, L. R. 1 Q. B. 686; Kellj v. En- ling, L. R. 1 Q. B. 699. Every subject has a right to comment on those acts of public men which con him as a subject of the realm, if he does not make his commentary a cloak foi malice. Parmiter v. Coupland, 6 M. & W. 108; Gathercole v. Myall, 15 Bl & W. 319; [Cooper 0. Lawson, 8 Ad. & E. 746; Lucaa r. Smith, 1 BL & N. 481; Kelly r. Tinling, L. R. 1 Q. B. 699; Commonwealth Pitts. (Pa.) 449; Wilson v. Fitch, 41 Cal. 363; Davis v. Duncan, L R. I C. P. 396 ;] and see, also, Seymour v. Butterworth, S F. & F. X. P. R. 872. And a writer in a public periodical has no other right than that oi any other person of freely discussing the public acts of another. Campbell ,-. Spottis- woode, [3 B. & S. 769; Aldrich 0. Press Printing Co. 9 Minn. 188. » Hie privilege of criticising and discussing the words and acts oi public men has in modern times been very widely extended." Erie C. J. in \\ lutelv r. Adams, 15 C. B. N. S. 418. Public meetings, Hearne v. Stowell. 12 Ad. & B. 720, and reports d public meetings are not privileged. Davidson-'. Duncan. 7 LI. & BL Payment into court and an apology may now be made in certain cases, and must be specially pleaded, see post, form 5, and note. Where the speaking or publication of the words or libel 1- admitted, and the defendant intends to rely on their truth as a justification, he musl specially. Smith v. Richardson, Willes, 20; 1 Saund. L80 (n.); L- N< w- man, 1 El & BL 577; Rumsej v. Webb. Car. & M. 104; Prior v. WiUon, 1 C. B. N. S. 95. See, also, Helsham ». Blackwood, 11 C. B. 111. cial plea in justification of oral slandc- sets forth the truth of the words men and in respect to words spoken, the truth is a defence although they were G$-2 PLEAS IX TORT. LIBEL AND SLANDER. Obs. spoken maliciously and without reason on the part of the defendant to think them true. Foss v. Hildreth, 10 Allen, 76; Fry v. Bennett, 3 Bosw. (N. Y.) Che defence that the words used were privileged by the occasion is not open in Massachusetts, unless it is distinctly set forth in the answer. Good- win v. Daniels, ' Allen. 61. See, however, under the common law, Hagan ,-. Bendry, 18 Bid. 1 77.] If the pica of justification is pleaded, and no evidence is adduced in support of it. the damages may thereby be enhanced, and this may afford evidence of express malice. Wilson v. Robinson, 7 Q. B. 68; Simpson t;. Robinson, 12 Q. B. 511. See, also, ]>ost, 662, note (7). A plea thai through mistake the defendant's letter was addressed to the plain- tiff's employ er instead of to the plaintiff himself was held bad; the letter, even had it been addressed to the plaintiff, not being a privileged communication. Fox r. Brodrick, 14 Ir. Com. Law. 453. [A telegram has not the privilege of a sealed letter. Williamson v. Freer, L. R. 9 C. P. 393.] In action by the plaintiff and his wife, a plea that the female plaintiff was not the wife of the male plaintiff was held a good plea in bar. Chantler v. Lind- >av, 16 L. J. Ex. 16. A plea of accord and satisfaction was held good. Boosey v. Wood, [3 II. & C. 484.] Generally, as to what amounts to defama- tory matter, see Fray v. Fray, 34 L. J. C. P. 45. As to" interrogatories in an action for libel and slander, see Stern v. Sevasto- pulo, 32 L.°J. C. P. 268; Baker v. Lane, 34 L. J. Ex. 57; Bickfordu. D'Arcy, L. R. 1 Ex. 354; Atkinson v. Fosbroke, L. R. 1 Q. B. 628; 35 L. J. Q. B. 182; [Tupling v. Ward, 6 II. & N. 749.] Ante, 538, " Not Guilty," ante, 635, " Limitations," post, 666. 1. Plea to an Action for Slander of the Plaintiff in his Trade, §c. ; Denial that he exercised such Trade. (0) That the plaintiff did not use, exercise, or carry on the trade or business of [following the words in the declaration], nor was he a [linendraper], as alleged. [la. Denial that Defendant made the Accusation charged. And the defendant conies and upon his personal knowledge denies that he accused the plaintiff of the crime of perjury, as set forth in the plaintiff's writ.] 2. Plea denying that Defendant used the Words in the Sense im- puted. (£>) That he did not use the words [black sheep] for the purpose of expressing or meaning, nor were they by the said persons in the declaration mentioned, or any of them, understood as expressing or meaning [S>-c. following the words in the declaration], as alleged. 3. Plea that the Matter published is true, (q) That the plaintiff, before the publication of the alleged libel [or " before the (0) Sec another form, Cannell v. Curtis, 2 (7) Truth must be specially pleaded. 1 Bing. N. C. 228. Saund. 130 ; and see Rumsey v. Webb, 1 [p] See form, &c M'Gregor v. Gregory, Car. & M. 104. But it should not be pleaded 11 M. & W. 287. The defendant cannot without good ground for believing that it avail himself of this plea when the words will be proved, as the pleading it unsuccess- complained of arc actionable in themselves, fully would enhance the damages. Wilson because the plaintiff in such a case need not v. Robinson, 14 L. J. Q. B. 196; [7 Q. B. prove in what sense they were used. Cora- 68.] Where libellous matter can be divided 111011 Law Procedure Act, 1852, s. 61. into two parts, each actionable, the defend- PLEAS IX TORT. I.IIT.I. AND BLANDEB. said words were spoken"] feloniously did steal, take, :ih<1 carry a* goods and chattels of one E. F. [following at nearly at p the declaration]' (/) ant may plead separate plena to each part; Clarkson v. Dawson, S Bing. 587 ; and if the rest of the libel be not actionable Ingram v. Lawson, 5 Bing. \. S. 66), thi fendant will Bucceed thereon <>n not guilty. Clarke v. Taylor,2 Bing. N.C.664 ; [Mount- ney v. Watton, 2 1?. & Ad. 673; M'Gregorv. Gregory, ll M. & W. 287; Walker o. Brog- den, I '.»"('. B. N. S. 65.] But defamation is not divisible where many statements tend to one conclusion and imputation, and a single sentence, or portion of a .sentence, cannot in such ease he selected and separately dealt with by plea or demurrer. Per Lord Abin- ger, Eaton v. Jones, 1 Dowl. N. S. 602 ; and Gregory v. Duke of Brunswick, 1 D. & L. 518; 6M. &G.205; Smith v. Parker, 2 D. & L. 394. In general it suffices that the gist and substana of the libellous matter charged are justified and covered by the matters of facts stated in the plea, and constituting the offence charged. In Morrison r. Manner, 3 Bing. N. C. 759, the main charge against the plaintiffs was, that they compounded and sold poisonous and deleterious pills, and that defendant had crushed the system of poison- ing pursued by the scamps and rascals; and the plea (which was pleaded to the whole declaration) chiefly charged that the pills were dangerous, &c. and the terms of gen- eral invective and reproach, as "scamp," " rascal," were not expressly noticed in the plea ; it was held that the plea was sufficient, the court saying, that they could not under- stand those words, however offensive, as con- taining any charge different and distinct from that of which the truth had been justi- fied in the first plea, and that they were not aware of any authority by which it is deter- mined that the justification of the truth of the substantial imputation contained in a libel is not sufficient unless it extend also to every epithet or term of general abuse which may be found in the description or state- ment of such imputation. Where the charge against the plaintiff is in itself, on the face of the libel, of a certain and specific nature, and states the facts imputed in so perspicu- ous a shape, that the plaintiff must know at the trial what evidence he has to adduce to rebut the accusation, and the plea of justifi- cation can afford no further information, it is sufficient to allege generally in the plea that the plaintiff committed the offence, or was guilty of the misconduct, using the words of the charge; as if the words be, that plaintiff stole a sheep of E. F., the plea may be, "that he did on, &C. steal the said Bheep," &C. But where the charge is general, as that plaintiff is a "scoundrel," or "swin- dler," or had defrauded van.. guilty of neglect, extortio torney, a general plea mi rely i charge, and not showing tie- / >ion or instance of misconduct, l ■ !i-, Sbc. i- bad. See I Saunri /\ note (,„ ) ; i Chit. PI. 7th ed 563 . i Ind. Defamation. See J'Anson v. Stuart l T. R. :i- : -' Sm. I.. C. 6th v, Stevens, 1 1 Price, 235 ; Hickin otham v. Leach, 10 M. >< W. 361 ; 2 Dowl N - The plea should not repeat general chi made iii the libel, but should state particular aet - of misconduct. Holmer v. Cat Taunt. 543; Hickinbotham v. Leach, 10 M 8 W. 361 ; | Vauwvek o. Guthrie, 4 Duer, 268; S. ('. 17 \. V. 190; Ormsby p D lass, 5 1 >uer, 665 ; Fi 54; Anibal v. Hunter, 6 How. Pr. 255; Bud- dipgton v. I >a\T, 6 How. l'r. im ; ||. v. Stubbs, 7 C. B. X. S. 555. The New York Code has not changed the rule of law which requires certainty and particularity in ing the offence charged against the plaintiff in a plea of justification in an action of - der. The answer must state specifically the offence of which the plaintiff is alleged to have been guilty, giving time, place, and cir- cumstances. Billings v. Walker, 28 B Pr. 97 ; Wachter v. Quenzer, 29 X. V Tilson v. dark. 15 Barb. 178. But the form in which the plea will he allowed depend in great measure on the nature of the charge in the declaration. s ■ I' brens v. Allen, 8 Jur. N. S. C. P. 118.1 A which professes to justify the whole, but jus- tifies only a part, is had. Johns v. Gitl Cro. Eliz. 239 ; Clarkson v. Law-.,,. 6 B 260; M'Gregor v. Gregory, n M & W. Walker r. Brogden, 19 C. B. N. S.65. [The answer should cover the whole charg v. Ruscoe, i \'. V. 162; McKinbj v. K John. 351 ; BisseU v. Cornell, 24 v7end land v. Hoamer, 8 How. Pr. 215 ; Herr v.Bamberg, 10 How. Pr. 128.] If the jus- tification substantially meets and answers the chaj against the plaintiff', it is suffi- cient. Helsham v. Blackwood. II C. B. Ill : Tighe v. Cooper, 7 El. & I'd. 639. I' upon and effect of a plea that the libel b true " in substance ana effect." x '. Lloyd, 2 B. & I 578; 1 C. A P. 2 15 A plea in this general form i- frequently al- ii, and it i> often convenii i pt it. See Bi bx< i v. Allen, s Jur. V- 118; but i: ass v. Stubbs, : I B x ^ - s< e, also, J'Anson v. Stuart, l> 8m. I ' ed. 67, ii|pon this mode of pleading. S plea is good after verdict. Bdmond Stark. 7 ; 1 Chit. 291. Ml 8 (r) Clarke v. Taylor, 2 Bing. N. C. 664. plea should of com When a comment, following previous libel- much a> the defendant can iu-t.t Ions matter, should be separately justified, son v. Lawson, 6 Bing. - Cooper v. Lawson, 8 Ad. & E. 746. The Watton, 9 B. A Ad, 673. 6G4 PLEAS IX TORT. LIBEL AND SLANDER. [3a. Another Form for Same. And the defendant says the plaintiff did feloniously steal, take, and carry away ten dollars, the property of one S. T., in the possession of said S. T. heing found, and converted the same to his own use, and so the plaintiff was guilty of the crime of theft, and the defendant's accusation was true.] 4. Plea justifying a Charge of Insolvency on the Ground that it is true, (s) That hefore the publication of the said libel divers persons had given credit to and were then creditors of the plaintiffs in their said trade and business, and the plaintiffs were then indebted to and liable to pay in that behalf their said several creditors divers large sums of money, and the plaintiffs were then under divers pecuniary engagements and liabilities in and relating to their said trade and business, and were unable to meet their said several pecuniary engage- ments and liabilities in their said trade and business, and were then in bad, embarrassed, and insolvent circumstances, and unable to pay or satisfy their said several creditors their debts in full, and were then about and likely to fail in and be forced and obliged to break up and cease their said trade and busi- ness. [5. Plea to a Libel imputing a G-eneral Charge of Baseness, that the Libel was published in reference to a Particular Transaction, and justifying it. Tighe v. Cooper, 7 EL & Bl. 639. Special pleas that the matter was a fair and bond fide comment in a news- paper article upon the conduct of the plaintiff in a public capacity. Lucan v. Smith, 1 H. & N. 481 ; Cooper v. Lawson, 8 Ad. & E. 746 ; Kelly v. Tin- ling, L. K. 1 Q. B. 699. Plea that the libel was a correct report of a prelim- inary inquiry before a justice of the peace in which the plaintiff was summoned to answer a charge of perjury and was discharged. Lewis v. Levy, El., Bl. & El. 537.] 6. Plea that Plaintiff was a Swindler, as charged in a Libel. Clarke v. Taylor, 2 Bing. N. C. 654. 7. Plea to a Declaration for a Libel on a Vendor of Quack Medicines, that the Matters are true. Morrison v. Planner, 3 Bing. N. C. 759. 8. Plea to a Libel on a Proctor, that he had been suspended. Clarkson v. Lawson, 6 Bing. 587. 3d ed. Ev. 643, observes, in regard to the evi- When a publication, libellous on its face, dence in support of a plea of justification in can only be excused or privileged on the slander, that " there seems to be little if any ground that certain events happened, the difference between the evidence in proof of answer must allege that these events did a specific charge thus involved in a civil pro- happen, in order to lay the foundation of ceeding, and the evidence which is essential the defence of privilege. Fry v. Bennett, 5 to support an indictment for a similar Sandf. 54 ; Buddington v. Davis, 6 How. Pr. charge." Cook v. Field, 3 Esp. C. 133; 401.] Chalmers v. Shackle, 6 C. & P. 475 ; Will- (s) [See Watkin v. Hill, L. R. 3 Q. B. mott v Harmer, £ C. & P. 695. [Privilege: 396; loss v. Hiklreth, 10 Allen, 76, 79.] PLEAS IN TORT. LIGHTS. T. 9. Plea to a Libel on o. 10. The Like on a Medical Man. Edsall v. Russell, -1 M. & G. 1090. 11. Plea that Plaintiff did keep out of the Way to evade /'rocess. Lay v. Lawson, 4 Ad. & E. 795. 12. That Plaintiff broke into Defendants Cellar, and got drunk. Toogood v. Spyring, 1 C, M. & EL 184. 13. Plea justifying a Libel imputing Polygamy. Willmott v. Harman, 8 C. & P. 69 G. 14. Plea of Justification in an Action by a Clergyman on the gro of the Truth of the Facts contained in the alleged Libel. Walker v. Brogden, 19 C. B. N. S. 65. (t) 15. Plea of Accord and Satisfaction. Boosey v. Wood, [3 H. & C. 484.] SLANDER OF TITLE. Ante, 549. Obs. — If the defendant make the statement contained in the declaration in relation to matters in which he is interested bona Jul , and on reasonable grounds, he is not liable in an action for slander of title. Pitt v. Donovan, 1 M. 8k S Watson v. Reynolds, M. & M. 1. As to the truth of the libel being given in evidence under the general issue, see Watson v. Reynol Where the defendant stated that oil made by the plaintiff was inferior in qual- ity to oil made by the defendant, and gave a feeble Light, it was held that action was maintainable. Young v. Macrae. 8 B. & S. 264; and see. ante, 549. " Not Guilty," ante, 635. LIBERUM TENEMENTUM. See post, " Trespass to Realty." LIEN. See post, "Trover." LIGHTS. See ante, " Ancient Lights." (0 In the same case a plea that a second letter was a fair comment upon facts set forth in a former letter was held bad. 666 PLEAS W TORT. LIMITATIONS. LIMITATIONS. Obs. — In contract, ante, 431. In actions relating to real property the limitation is twentj years. 3 & 4 W. 4, c. 27, s. 2. See 2 & 3 W. 4, c. 71. By 3 & 4 W. 1. c. 42, B. 8, " Anions of debt for rent upon an indenture of demise or covenant, or debt upon any bond or other specialty, actions of debt or scire upon recognizance, must be brought within twenty years after the i such actions or suits." " Actions of debt upon an award, where the submission is not by specialty, or for any fine in respect of any copyhold estate, or for an escape, or for money levied upon any fieri facias, must be brought within m\- years after the cause of such actions and suits." " And actions for penalties, damages, or sums of money given to the party grieved, mnst be brought within two years after the cause of such actions or suit-.'' And it the penalty is sued for by and given to a common informer within one year. 31 Eliz. c. 5, B. 6. Thus, in actions on a deed, such as arrears of rent due on a lease, Paget u. Fo- ley. •_' Bing. X. C. 679, or a rent-charge, Strachan v. Thomas, 12 Ad. & E. 5, recognizance or award, lb., it is twenty years. A distress cannot be made tw.nty years after any receipt of rent. See a plea to that effect, Col- lier v. Clarke." 5 Q. B. 467; Musgrove v. Emmerson, 10 Q. B. 326; 16 L. J. Q. B. l 75; De Beauvoir v. Owen, 5 Ex. 166; 19 L. J. Ex. 177. For a pen- alty under a by-law of a corporation it is six years. Tobacco Pipe Makers v. Loder, 20 L. J. Q. B. 415. Form of plea on a money bond. Blair v. Or- mond, 20 L. J. Q. B. 445; Tuckey v. Hawkins, 4 C B. 655; 16 L. J. C. P. 201. On an indenture. Kempe v. Gibbon, 12 Q. B. 662; 17 L. J. Q. B. 298. Actions of trespass, detinue, and replevin for goods or cattle, and trespass quare clausumf regit, must be brought within sLx years. 21 Jac. 1, c. 16, s. 3. Actions for assault, battery, wounding, and imprisonment, must be brought within four years. lb. Actions of verbal slander must be brought within two years. lb. This does not apply to actions for written slander or libel, nor to slander of title, in which cases the limitation is six years. lb.; Law v. Harwood. Cro. Car. 141. [In an action of slander the burden of proof is on the plaintiff to show that the words were spoken within two years before the suing out of his writ. Pond v. Gibson, 5 Allen, 19.] As to disabilities and their removal, see 21 Jac. 1, c. 16, s. 7; 4 Anne, c. 16; 19 & 20 Vict. c. 97; ante, 431. By 5 & 6 Vict. c. 97, s. 5, " the period within which any action maybe brought for any thing done under the authority or in pursuance of any public, local, and personal, or local and personal acts, or other acts of a local and personal nature, shall be two years, or in case of continuing damage, then within one year after such damage shall have ceased." This does not apply to subse- quent acts. See Boden v. Smith, 18 L. J. C. P. 121. As to what acts are local and personal within the above statute, see Cock v. Gent, 12 M. & W. 234; 13 L. J. Ex. 24; Moore v. Shepherd, 10 Ex.424; 24 L. J. Ex. 28; Bur- nett v. Cox, 16 L. J. Q. B. 80. By the copyright act, 5 & 6 Vict. c. 45, s. 26, the limitation is twelve calendar in' nths. By Lord Campbell's act, 9 & 10 Vict. a. 93, s. 3, the action must be brought within twelve months from the time of death. Against justices the limit is six months. 11 & 12 Vict. c. 44, s. 8. Under the metropolitan police act, 2 & 3 Vict. c. 71, s. 53, the. limitation is three months. Under the highway act, 5 & 6 W. 4, c. 50, three months; county courts act, 9 & 10 Vict. c. 95, s. 138, three months. Under the pub- lic health act, 11 & 12 Vict. c. 63, s. 132, six nths. Under the metropolis management act, 25 & 26 Vict. c. 102, s. 106, six months. Actions for anything done in pursuance of the larceny act, 24 & 25 Vict. c. 96, s. 113, must be brought within six months; as also under the malicious injury to property act, 24 & 25 Vict. c. 97, s. 7, and the coinage act, 24 & 25 Vict. c. 99, s. 33. The period of limitation commences from the accrual of the cause of action, or damage, and not necessarily from the time of the act which causes such dam- PLEAS IN TORT. M VGISTRATE. Obs. age. Bonomi v. Backhouse, [EL, Bl. & El. 622;] Backho B L. Cas. 503 mi u. Backhouse, [EL, Bl. & El. 622;1 Backl B ; Whitehouse <•. Fellowes, 10 C. I'.. N. 8. ' where see all the cases collected. A replication to a plea ol the statute that tin' wrongful taking was frau concealed will nol be allowed, Hunter v. Gibbons, i II fraudulent concealmenl of the cause >>( action by the party liable d< prevent the Btatute of limitations running from the accrual action. The Imperial Gas Company r. The London G I 89. [Bui the genera] and prevailing rule in the American See 2 Chiity Contr. (11th Am. ed/) L285, note (/) and i i As to what amounts to an acknowledgment of a trespa te the • of the statute, Bee Hunt v. Parker, i B. & ALL 92. As to pleading that a nuisance had been carried on by the defendant tw< ,cars before the plaintiff had an interest in his pren • Elliots Teetham, 2 Bing. N. C. 134; Bliss v. Hay, 4 Bing. X. C. S 1. Plea of the Statute of Limitations, (u) That the alleged cause of action did not accrue within [state the period of limitation applicable to the case~] years before this suit. 2. Plea to a Cognizance for Rent, that the Distress was made within Twenty Years next after the Time when /In' Right accrued to a /' son through whom Title is claimed, and that such Person a tinued Receipt of Rent more than Twenty Years before Distress. Collier v. Clarke, 5 Q. B. 467. 3. Declaration. — Breaking and entering plaintiff's close. Plea. — Seisin of W. in fee, who demised to J. II. for a term, entry of Q. H., devise to W. H. and assent of executors, and justification aa W. II. servant. Replication. — That the entry was for recovering the close, ami defend- ant's entry did not accrue within twenty years before. Rejoinder. — That no acknowledgment of title had been given before 4 W. 4, c. 27; that W. H. was entitled when act passed ; that the cl not then possessed adversely to right of W. II., and entry made within years of passing of the act. Surrejoinder. — That one S. possessed the close adversely to W. II.. issue thereon. Holmes v. Newland, 11 Ad. & E. 44 ; in error, 8 Q. B. 67 LUNAGY. See post, '■'■ Trespass to the Person." MAGISTRATE. See " Notice of Action," and " Tender of Amends." (u) This form is given by the common law procedure act, 1852 (15 & 16 \ c. 76). 668 PLEAS IN TORT. MASTER AND SERVANT. MALICIOUS ARREST AND PROSECUTION. Ons. — Not guilty denies the malice, and the want of probable cause; Hounsfield v. Drury, LI A.d. & E. 98; James v. Phelps, 11 Ad. & E. 433; also the prose- cution or arrest itself. Cotton v. Browne, 3 Ad. & E. 312; [Mitchell v. Jen- kins. 5 I>. \ Ad. .">**.] Thus in an action for maliciously issuing execution on a warrant of attorney for £103 when only £27 was due, it was held that it lay on the plaintiff to prove that not more than the £27 was due. Gough v. Cribb, 11 M. & W. 497; [Haddrick v. Heslop, 12 Q. B. 267.] The determination of the proceedings, when necessary to be alleged, must be denied by special {)lea. Watkins v. Lee, 5 M. & W. 270. So in an action for malicious out- awry, the general issue would not deny the allegation of the reversal of the outlawry; Drummond v. Pigou, 2 Bing. N. C. 114; nor in an action for ma- liciously issuing a fiat in bankruptcy would it deny the annulling of the fiat. Atkinson v. Raleigh. 3 Q. B. 79. A declaration for maliciously preferring an indictment, containing several assignments of perjury, is supported by showing that some of the assignments of perjury were preferred without prob- able cause, although there may have been probable cause for the others. Ellis v. Abrahams, 15 L. J. Q. B. 221. [In an action for malicious prosecu- tion the defendant, for the purpose of rebutting malice and to show probable cause, may introduce evidence to prove that he acted upon the advice of counsel, having in good faith fully laid the case before him. Eastman v. Keasor, 44 N. H. 518; Ravenga ». Mackintosh, 2 B. & C. 693; Snow v. Al- len, 1 Stark. 502; Hewlett v. Cruchley, 5 Taunt. 277; Stone v. Swift, 4 Pick. 389; Bacon v. Towne, 4 Cush. 217; "Williams v. Vanmeter, 8 Missou. 339; Laird v. Davis, 17 Ala. 27; Stevens v. Fassett, 27 Maine, 266; Ash v. Mar- low, 20 Ohio, 119; Walter v. Sample, 25 Penn. 275; Hall v. Suydam, 6 Barb. 83; Ames v. Rathbun, 55 Barb. 194; Collins v. Hayte, 50 111. 337: Alexan- der v. Harrison. 38 Missou. 258; Bartlett v. Brown, 6 R. I. 37; Wills v. Noyes, 12 Pick. 327; Wilder v. Holden, 24 Pick. 8. But the defendant is not pro- tected by the advice of counsel unless he made to him a full and fair disclos- ure of the facts; Sappington v. Watson, 50 Missou. 83; Cooper v. Utter- bach, 37 Md. 282; Ash v. Marlow, 20 Ohio, 119; Hewlett v. Cruchley, 5 Taunt. 277; Hill v. Palm, 38 Missou. 13; and acted in good faith upon the advice. Cole v. Curtis, 16 Minn. 182; Center v. Spring, 2 Clarke (Iowa), 393. Proof that the defendant acted under the advice of a person not learned in the law is not admissible for the purpose of rebutting malice. Straus v. Young, 36 Md. 246; Olmstead v. Partridge, 16 Gray, 381. As to the proof of facts tending to show the plaintiff guilty of the charge imputed to him in order to prove probable cause, and to mitigate damages, although it does not appear that such facts were known to the defendant at the time of the prose- cution, see Bacon v. Towne, 4 Cush. 217.] Plea to an Action for Malicious Prosecution that it was not deter- mined, (x) That the said prosecution was not determined as alleged [or the said indict- ment was not returned to the said court by the said jurors " not found"]. MASTER AND SERVANT. Obs. — In actions for seduction, or for enticing away servants or apprentices, or for injuries to servants, not guilty denies the wrongful act and the accruing loss, but admits that the party seduced, &c. was the servant of the plaintiff. Tor- fa:) Describe the proceedings according to the suit is alleged to have been determined the fact. See Obs. and declarations, ante, 550 by "judgment as appears by record," mil tiel et seq. Another form of plea, Coombe v. record would appear to be the proper plea. Capron, 1 M. & R. 398, in which the words See Brown v. Jones, 15 M. & W. 191. within the brackets were omitted. Where PLEAS IX TOUT. MISCHIEVOUS ANIMALS. Cms. rence v. CH.1m.ik. 5 Q. B. 297; Eager v. Grimwood, 1 Ex.61; 16 I J 236. The service must !,«• Bpeciafi) denied if necessan Horner, 7 EI. & Ml. 628; 26 L. J. Q. B. 21 i. In actions for negligence, see post, •• Negligence," 670; ante, "Ma Servant," 558; and ante, " Negligence," 664. 1. Plea that the Parti/ injured is not the S< want of the PI That the said A. B. was not the Bervant of the plaintiff aa alii j 2. Plea jit stift//' hi/ Moderate Oorrrrfi„n of an Apprentice for l> obedience. (2) That, the plaintiff was the apprentice of the defendant in his trade and busi- ness of a , and behaved an.l conducted himself saucily and contumaciously towards the defendant, and refused to obey his lawful commands relating his duty as such apprentice, whereupon he, the defendant, then mod corrected him, the plaintiff, for his said misbehavior. MESNE PROFITS. Post, " Trespass to Realty." MISCHIEVOUS ANIMALS. Obs. — Law. &c. ante, 5G1. In an action for injuries done by defendant's dog or eattle. &c. not guilty denies that the animal did the act complained of, that it belonged to the defendant, and that it was of a savage disposition, Ho v. Sharpe, 7 C. & P. 755, and that the defendant kept ii knowing it to Thomas v. Morgan, 2 Cr., M.& R. 496. See Gerard v. Dicken See declarations, &c. ante, 562, 563. Where the owner of a dog accustomed to kill game allowed the dog to be at large near a wood, wherein the owner knew game was kept, and the dog strayed into the wood and did damage to the game, the owner was held lia- ble.' Read v. Edwards, 17 C. B. N. S. 243. [See form in tin 1. Plea that the Defendant's Dog attached the Plaintiff ' he irritated it. That the plaintiff, without the leave or license and against the wiil of the defendant, and without any reasonable cause or lawful occasion, teased, and irritated the said dog; and that the attacking and biting of the plaintiff by tin- said dog were entirely caused and occasioned by the Baid teasing and irritating of the said doff. (y) Form, &c. Harris v. Butler, 2 M. & &R.338; S.C.4 Dowl. 215. Of a son. Win- W.'539; Torrencc v. Gibbons, 5 Q. B. 2\n. terbourne ». Brookes, 2 C. & K. 16. Pica that the plaintiff was a servant of the like of a mariner acting mutinous! defendant with the negligent servant. Wig- v. Dalrymple, R. & M. 11-: Man gett v. Fox, 11 Ex. 832. A similar plea, triou, 6 C 8 P. 171 ; Lamb Burnett, l Griffiths v. Gidlow, 3 H. & N. 648. Plea C. & J. 291 ; Johnson v. Bridge that the plaintiff was a volunteer assisting If thecoma for any correction, &c. I defendant's servant. Degg v. Midland Ry. issue ma] be joined on the plea; bnl il Co. [1 H.&N. 773.] See t'otter r. Faulkner, plaintiff contend that then- was an tl B. & S. 800;] Hutchinson v. York, &c. correction, 4c. he waul new !y. Co- 5 Ex. 353. V Ward, supra ; or other rej.h (z) See form, &c. Penn v. Ward, 2 Cr., M. 670 PLEAS IX TORT. NEGLIGENCE. 2. Plea that the Plaintiff was warned not to go near the Dog, frc. lid did so, wherefore, $*c. That the defendant bad caused the said dog to be tied and fastened up in a careful and proper manner in and upon a certain part of certain premises of him the defendant, where the plaintiff had not any [right or] occasion to pass; and that the plaintiff was warned and cautioned against going near to the said dog, or teasing and inciting the same: yet the plaintiff went near to the said dog, and teased the same, and thereby caused the said dog to attack and bite the plaintiff. NEGLIGENCE. Ons. — See ante, 564, 578, 579. Not guilty denies the wrongful act charged, i. e. the negligence and the damage. 11. G. T. T. 185.1, r. 16. In collision of car- riages, &c. it would, the iv fore, admit that the defendant was in possession by himself or his servant, but would deny that it was caused by any negli- gence of himself or servants. Durnford v. Trattles, 12 M. & W. 530. The form of the declaration may, however, be such that the plea of not guilty will put in issue that the carriage was being driven by the defendant's servant. Mitchell v. Crasswaller, 16 C. B. 237; 22 L. J. C. P. 100. There must be separate pleas, if the facts warrant them, traversing the plain- tiff's possession of the damaged carriage; Woolfe v. Beard, infra; Emery v. Clark. 2 M. & Rob. 260; as likewise the defendant's possession of the car- riage which did the injury. Taverner v. Little; Wheatley v. Patrick, 5 M. & W. 652; Hart v. Crowley, 12 Ad. & E. 378. If on the' latter traverse it be proved that the carriage which did the injury was the defendant's, it then lies on him to show that it was not under his management when the accident occurred, which he may do under not guilty. Mitchell v. Crasswaller, 16 C. B. 237; 22 L. J. C. P. 100; Joyce v. Cassell, 8 C. & 1'. 370. So under this plea it maybe shown that the injury arose from the plaintiff's negligence; Ellis v. South Western Ry. Co. 2 H. & N. 42-1; 26 L. J. Ex. 349; or, in the case of a public conveyance, by the negligence of those conducting it. Thorogood v. Bryan, 8 C. B. 131; Bridge v. Grand Junction Ry. Co. 3 M. & W. 244. As to the negligence of those in the care of infants, see Waite v. North Eastern Ry. Co. 27 L. J. Q. B. 417. No action lies where both parties are in fault and contributed to the injury, ante, 570, and this may be shown under not guilty. Bridge v. Grand Junction Ry. Co. 3 M. & TV. 245. And it is not necessary to plead that it was caused partly by the plaintiffs negligence. Norton v. Scholefield, 9 M. & W. 665; Gough v. Bryan, 2 M. & W. 770. [The contributory negligence or wrong of a third party is no defence. Illidge v. Goodwin, 9 C. & P. 190; Lynch v. Nurdin, 1 Q. B. 29; Abbott v. Macfie, 2 H. & C 744; Harrison v. Great Northern Ry. Co. 3 H. & C. 231.] The same applies to collision of ships. Woolfe v. Beard, 8 C. & P. 374; Ven- nel v. Garner, 1 Cr. & M. 21; The Ligo, 2 Hagg. Adm. Rep. 356. So where the negligence consists of a breach of admiralty rules, it may be shown under not guilty; Dowell v. Steam Navigation Co. 26 L. J. Q. B. 59; also it may be shown under not guilty that the defendant was a member of a quasi French corporation to whom a vessel, which ran down another, belonged, and which, by the law of France, was alone accountable for the act of the mas- ter. Steam Navigation Co. v. Guillou, 11 M. & W. 87 7. 1. Plea traversing that the Carriage, $c. was the Plaintiff's. That the said carriage and horses [as the case may be~] was not the plain- tiff's [or defendant's] as alleged. PLEAS IN TORT. NEW ASSIGNMENT. 671 2. Plea travertin,/ that the Carriage was under th I of the Defendant?* Servant. That the said carriage and horses [as the case may &«] were nol an care and control of the defendant's Bervanl as alleged. [3. Plea to a Count for a Trespass, that it was caust d by Pla own "Negligence, (a) That the alleged trespass was caused by the n ce :tn\ new matter of fact; and. th< like any other matter of confession and avoidance, must l»- specially p Where the plaintiff seeks to avoid any !■ -a! excuse for a tresp matter subsequent, which makes the defendant a trespasser ab bound to plead such matter, and cannot take advantage of it under t! eral traverse de injuria, &c.| Bee the authorities collected in I Saun in note; and the case is the same upon principle, whether th< by the defendant is precedent or subsequent to the execution of the writ, and the reason is undoubtedly the Bame in each case, \i/. thai the ought not to be taken by surprise at the trial." Declaration of two counts for assault and imprisonment. Plea, that d< (a) [See M'Laughlin ». Pryor, 4 M. & C. St. 463; Durant v. Palmer, 5 D 48; ante, 570; Railroad Co. v. Gladmon, i"> Plea of compulse Wallace, 401 ; Beatty v. Gil more, 16 Penn. waters. The Hall. v. I. K Adiu. 3.j 672 PLEAS IN TORT. NEW ASSIGNMENT. Obs. being bail for plaintiff arrested him to render him in discharge, and detained him till he had satisfied the demand in the action. Replication, de injuria,. It appeared that defendant, in addition to detaining plaintiff till he satisfied the demand in the action, detained him ait hour lunger, till lie paid the ex- D< QSl - ol the defendant becoming hail. &C. Held, that this was one. Continu- ing trespass, and that, therefore, in order to recover for that part of it which was unjustifiable (namely, the additional detention for the hail's expenses), the plaintiff ought to have new!)/ assigned. Lambert v. Hodgson, 1 Bing. 317. So where to trespass for imprisoning the plaintiff, the defendant justi- fied (as churchwarden), for indecenl behavior in a church, and to prevent its renewal, and the plaintiff replied de injuria, and also newly assigned an im- prisonment after the expiration of a reasonable time, &c; it was held this mode of replying was good and was not double. Worth v. Terrington, 13 M. & W. 781; 2D. & L. 352. See Atkinson v. Mattcson, 2 T. E. 172, 177; 1 Saund. 299, note (6). A new assignment in trespass to realty is necessary where the declaration is general and the subject-matter divisible, and the plea apparently sets up mat- ter of justification, covering the trespasses to which the plea is pleaded, but realli/ onlv answers a part; in such case, the part not answered must be new assigned.' 1 Saund. 299, 300; Bracegirdle v. Peacock, [8 Q. B. 174.] So, where the plaintiff cannot deny the cause of justification, and either relies on another distinct trespass, or upon an excess committed by the defendant in exercising his right, he should new assign. The onus of proving that the trespasses were distinct will lie on the plaintiff. Darby v. Smith, 2 M. & Rob. 184. In trespass to the person, where the plaintiff relies on excess, it is usual to reply it. In trespass to realty, where the plaintiff relies on excess it is usually new assigned. Sometimes the plaintiff may deny the justification and also new assign, without committing the fault of duplicity. Thus in trespass to land, laid to have been committed on divers days, so that distinct trespasses may have been com- mitted at separate periods, where the defendant pleads a right of way, &c. the plaintiff may traverse the right, and also new assign other trespasses extra viam, or on totally different occasions and for other purposes. See 1 Chit. PI. 7th ed. GG1. So where a plea justified (by leave and license) a tres- pass, in entering, &c. a house, it was held, that a replication traversing the justification, and also newly assigning continuing in the house and excess, was good. Loweth v. Smith, 12 M. & W. 582; Playfair v. Musgrove, 14 M. & W. 239; and see Worth v. Terrington, 13 M. & W. 781. Trespass for breaking and entering a house, and breaking locks, &c. Plea justifying as sheriff under process, stating that defendant was lawfully in the dwelling- house, and that he could not get out or remove the goods without breaking, &c. New assignment that action brought for breaking the outer door, &c. Plea justifying as before, and as no one was in the house, defendant opened door. Second new assignment that action brought for breaking locks, &c. belonging to outer door. Held good, as the substance of the second new assignment was contained in and might be proved under the allegation of the first. Pugh v. Griffiths, 7 Ad. & E. 827. But in such cases, on account of costs, it is injudicious for the plaintiff to traverse the right set up in the plea, unless there be good reason to dispute it. In trover the form will be nearly as in trespass, stating that the plaintiff, on, &c. another and different occasion, &c. converted, &c. the goods. See Brown v. Copley, 7 M. & G. 570, note (a); 2 D. & L. 332. Trover for ten barges and ten pieces of timber, &c; plea justifying removing them because they obstructed the navigation of the Thames; held, that the plea being general, and apparently answering the whole of a divisible number of things in the declaration, the plaintiff might traverse, and also new assign that he brought bis action for other pieces of timber converted on another occasion. Page v. Hatehett, 8 Q. B. 187; 15 L. J. Q. B. 68. New assignment in an action against a sheriff, justifying under a fi. fa., that the plaintiff sues for converting other goods. Aldred v. Constable, 6 Q. B. 370. It was held in that case that this is the proper mode of replying where the sheriff sells under color of the writ under which he legally justifies more than sufficient to sat- isfy that execution. Sed quaere ? whether a new assignment in trover can PLEAS IX tout. Ni:\V ASSIGNM1 NT. Obs. in any case be correct. Weeding v. Aldrich, 9 Ad. 8 I J.; and see Bawthorne v. Newcastle, &c. R . Co ■ Q, B One new assignmeni can now only be pleaded, and that m i with the particulars. Common Law Procedure lict, U s. 88, '• No pica which has already been pleaded to the pleaded to such new assignment, except a pica in denial, unless by : the court or a judge, and Buch leave Bhall only \»- granted upon proof that the repetition of Buch plea is essential to a trial on the If a man abuse an authority given to him by the law, he becomes u ii ab initio ; and if in an action of trespass the authority be pleaded, thi quent abuse Bhould be replied as being an answer to the plea, and n assigned. 'The Six Carpenters, and note- thereto, I Sm. L. C. 6th ed. ' Oxlev v. Watts, l T. l; 12; Ellis v. Taylor, 8 M. & W. 11 Thomas, 12 Ad, & E. 117; West o. Nibbs, I I . B. L72. 1. New Assignment to Pleas of Right of 11'"/, Right of Com The plaintiff, as to the [second] and [third] pleas, says that I do) for the trespasses therein admitted, hut for trespasses committed by the defendant in excess of the alleged rights, (c) and also in other of the said land-, (d) and on other occasions, and for other purposes than those referred to in the said pleas. 2. If the Plaintiff replies and neiv assigns, the New Assignment i be asfolloivs. (e) And the plaintiff, as to the [second] and [third] pleas, furthi !. it he sues not only for the trespasses in those pleas admitted, bul also for, &c 8. If the Plaintiff replies and new assigns to some of tfo I' . md neio assigns only to the others, the Form may he as follows. I And the plaintiff, as to the and ■ pleas, farther saya, that : not for the trespasses in the pleas [the pleas not replied to] admitted, hut for the trespasses in the pleas [the pleas replied to] admitted, and for, &c. (b) This form is given by the Common matter of discharge there r. Law Procedure Act, 1852, sell. B, 55. Where Lees, 8 < '. B. L13. there have been two trespasses, either of (c) Such as self-defe: Daw, which will fit the declaration and particulars, 3 Ad. & E. 71 1 ; or n it' anv ; sec Common Law Procedure Act, a school-boy ; Penn v. Ward, 2 /) This is proper when 16 M. & W. 289. [See Cator v. Lewisham way is truly pleaded, ami the plaintiff Board of Works, 5 B. & S. 115; South Met- tends that the tn ro 42 opolitan Cemetery Co. v. Eden, 16 C. B. viam. Webb - larks. 10 2; Henningw. Burnet, 8 Ex. 187; Roberts Glover v. Dixon, 9 Ex. 158; I llison .. Rose, L. R. 1 Ex. 82.1 If the defendant n At Omit these won cannot prove a material allegation in his action be not foi i to land. idea, such as in justification by a sheriff, (e) Common Law P lore Act, that the outer door was ..pen when he en- Sched. B, tercd, the plaintiff should take issue on the (/) Common Law Procedure A plea; Duke of Brunswick v. Sloman, 8 C. seh. B, '-■' B. 317 ; but not if his answer to the plea IS vol. ii. 43 674 PLEAS IN TORT. NOTICE OE ACTION. 4. Nt w Assignment of Trespass to the Person. (#) Commence as in form 1.] But for trespasses committed upon another and different occasion, ami purpose, than in that plea alleged. 5. X> w Assignment to a Plea of Justification under a Fi. Fa. by a Sheriff, stating that he continued in the House an Unreasonable Tim>\ fie. Play&ir v. Musgrove, 14 M. & W. 239 ; Ash v. Dawnay, 8 Exch. 237. 6. Similar New Assignment that the Sheriff broke open an Outer Door. Pugh v. Griffiths, 7 A. & E. 830. NOLLE PROSEQUI. Ante, 441, 442. NOTICE OF ACTION. Obs. — There are several statutes which enact that no action shall be brought against persons acting in pursuance of their provisions (/<) until the expiration of a certain time, after notice in writing has been given to the defendant, that such action will be brought. By 5 & 6 Vict. c. 97, s. 4, it is enacted, that in all cases where notice of action is required, such notice shall be given one. calendar month at least before any action shall be commenced; and by s. 5, the period during which any action may be brought for anything done under the authority of or in pursuance of any public, local, and personal, or local and personal acts, and divers other acts of a local and personal nature, shall be two years; or in case of contin- uing damage, then until one year after such damage shall have ceased. By the provisions of certain statutes the general issue is allowed to be pleaded in certain cases, and special defences, including the want of notice of action, may be given in evidence under that plea, but by s. 3 of the above act, " So much of any clause or provision in any act or acts, commonly called public, local, and personal, or local and personal, or any acts of a local and personal (<7) See form, Brancker v. Molyneux, 1 bona fide, and reasonably believed himself to M. & G. 726; and see a form of new assign- be authorized (Carter v. Filliter, Car. & Mar. ment to a plea by a sheriff justifying under 498) by the statute, or to be doing his duty, process, that the trespasses were committed Hughes v. Buckland, 15 M. & W. 346; after an order from the execution creditor Booth v. Clive, 20 L. J. C. P. 151 ; 10 C. to withdraw from the goods. Walker v. 15. 827; Jones v. Howell, 29 L. J. Ex. 19; Hunter, 2 C. B. 324; and see Playfair v. Reed v. Cowmeadow, 7 C. & 1'. 821 : Smith Musgrove, 14 M. & \V. 239. • v. Hopper, 9 Q. B. 105; and see Kine v. Ev- (/, I As to what acts come within these ershed, 10 Q. B. 143; Gosden v. Elphick, 19 words, l Bar. Dig. tit. Action; Rose. Ev. L. J. Ex. 9; Jones v. G lay, 9 M. & W. llth ed. 750; Stark. Ev. 3d ed. vol. ii. p. 736; Huggins v. Weyday, 15 M. & W. 357. 580, and vol. iii. p. 729; 3 Burn's J. tit. Whether he had reasonable ground for he- Justice; Elliott v. Allen, 1 C. B. 18. Rate lieving he was acting under the statute, Cann collectors. 27 Geo. 2, c. 20, s. 2; Charring- r. Clipperton, 10 Ad. & E. 582. The ton v.Johnson, 13 M. & W. 356; ShatweU fides is a question for the jury. Horn v. v. Halt, 10 M. & W. 52:5; 2 Dowl. X. S. Thornborough, 8 Ex. 846 ; Arnold v. Hamel, 567. The omission to do. an act is equiva- 9 Ex. 404; Kirby v. Simpson, 23 L.J. M. Lent to doing or intending to do an act, so as ('. 165 ; 10 Ex. 358 ; White v. .Morris, 11 C. to entitle a public bodyto noticeol action. B.1015; 21 L. J. C. P. 151 ; Rudd v. Scott, 2 Wilson r. The Mayor of Halifax, 37 L. J. Scott N. K. 631 ; Haseldine v. Grove, 3 Q. B. Ex. 4 1. It i- no* necessary that the defend- 997. It is not necessary that the defendant ant should be acting in strict pursuance of should know of the existence of the statute, the statute. It is sufficient if he was acting Reed v. Coker, 13 C. B. 830. PLEAS IN TORT. NOTICE OF A OB8. nature, whereby any party or parties are entitle 1 or i tl,r general issue only, and to give any Bpecial matter in cially pleading the Bame, -hall l>e and the -mum- i- i \\ acts are within this section. Cock v. Gent, L2 .M . & vY. 284 II Easto, 15 M. & W. 244; Moore t>. Shepherd, 10 Ex.424; ! L. J. M. C l'7. 1i is not meant to apply to future acts. Bod L.J. C. P. 121. The want of notice of action must generally be pleaded specially. I , Great Western Railway, LI C. B. >88; Davej v. Warne, i- Law v. Dodd, 17 L. J. M. C 65; Smith /-. Pritohard, is not necessary where the general issue bj Btatute may be ante, 286, " NTol guilty by Btatute." Kirby v. Simpson, 10 E v. Nesfield. 8 El. & BL 724. Health {Public).— ll & 12 Vict, c. 68, s. 189. Newton v. Ellis, Bl. 115; 24 L. J. Q. B. 337; Mason v. The Birkenhead Commissioners, I II N. 72. Highways. — 8 Geo. 4, c. 126, s. 117: 5 & 6 W. i. c. 50, b. 109. L Southall, 5 M. &W.416; Huggins v. Weyday, L5 M. & W. 857; D Curling, 8 Q. B. 286; Stamp v. Sweetland, 8 Q. B. L8; Newton I L.J. Q. B. 337; Hardwick v. Moss, 7 II. & \. 136; 31 L. J. I Justices. — By ll & L2 Vict. <•. 44, s. 9, " No action -hall be commence any justice of the peace until one calendar month at least after a in writing of such intended action -hi 11 have been delivered to him, or left him at his usual place of abode by the party intending to commence such action, his attorney or agent ; (t) in which Baid notice the cause of action, and the court in which the same is intended to be brought, shall be clearly and explicitly stated, and on the hack thereof shall be indorsed the name and place of ahode of the party so intending to 3ue, and also the name and pi of abode or of business of the attorney or agent, if such notice has ^rn by such attorney or agent. See the cases on this statute collected in l liar. Dig. tit. Action; Rose. Evid. 11th ed. 769; Stark. Evid. 3d ed. vol. ii. p. 580, and vol. iii. p. 729, Constables. Greenway v. Burd, l T. B Hughes v. Buckland, 15 M. & W. 855; Wallace v. Smith, "I ; Kirby v. Simpson, 25 L. J. M. C. 165; 10 Ex. 358. Railway Company. — No notice is requisite when the company licence in the conveyance of passengers; Carpue o. London & Bright Co. 5 Q. B. 747; or as carriers for the loss of goods. Palmer tion Ry. Co. 4 M. & W. 719; but should be ■/\\<-n when ti jht to recover excess of char, r others similarly circun Great Western Ry. Co. 3 C. B. 71 l: L6 L. J. C. P. 72. Notice i .ry in an action against a company for obstructing a way in carrying their into effect. Boyd v. London & Croydon By. Co. l Bing;. V I word "person" in the clause requiring notice was, in thi elude the company itself . Upon this point see, also, the M v. Morton, 15 L. T. N. S. 187. Special Constables. — I & 2 W. 4, c. 41, s. 19; J tficholls, 13 M. & W 361; 2 D. & L. 420; Surfling v. Ovenden, 9 J. P. Form of Plea that no Notice of Action was gm n as n quirt d b s ute. (I) That the alleged grievances were committed by the defendant after the (») No proof of plaintiffs handwriting to L C. .1. M < . the notice is requisite, as it is sufficient it" want of these requisites is not i served on his behalf. Fm-nuui >•. Davies, 1 magistrate pleading a te Car. & Mar. 127. Notice bv attorney as Martin o. upcher, I prochein mini of infant plaintiff. Goudoin intend v. Lewis, 10 Ad. & E. 117. Pricbett - "• (k) The plaa of th.- fi mast be Brugh, 2 Cowp. 196. Bpecified. .Martin r. Upcher, 3 Q. B. 662; \ Bimilar plea in a I Dowl. N. S. 555; Jacklinr. Fytche, 14M. received was held bad. I' &W. 381. But not where the warrant was M . G signed by the justice. Prichett v. Gratrex, Co. 27 L. J. Q. B 676 PLEAS IN TORT. NUISANCE. passing of a certain act [or acts] of parliament made and passed in the year of the reign of [<-5" c -' se ^ out ^ ie ^ e °f ^ ie statute or statutes], and were and each of them was done in pursuance of [_or. by the authority of or under and by virtue of] the said statute [or statutes], and that no notice of commencing this action was given to the defendant one calendar month hefore the same was commenced pursuant to the said statute [or, the statutes in that behalf.] NUISANCES. Obs. — See "Ancient Lights," "Common," "Reversion," "Watercourses," •• Wavs." By r. 16, T. T. 1853, in an action for a nuisance to the occupa- tion of a house by carrying on an offensive trade, the plea of not guilty will operate as a denial only, that the defendant carried on the alleged trade in such a way as to be a nuisance to the occupation of the house, and will not operate as a denial of the plaintiff's occupation of the house. Under not guilty the plaintiff must prove that the defendant was the person who caused the nuisance. Dawson v. Moore, 7 C. & P. 25; also that the plaintiff sus- tained an injury from the acts complained of; thus in Norton v. Scolefield, 9 M. & W. 661, winch was a case for keeping a cesspool which fouled plaintiff's well, it was held that not guilty denied both the fact of keeping the cesspool, and also that the plaintiff's well was thus rendered foul. See, also, Mum- mery v. Paul, 2 D. & L. 585, per .Manic J.: 1 C. B. 316. In an action for continuing a nuisance, the continuance only is denied by not guilty. Green- field v. Edgcombe, 7 Q. B. 661. See Grew v. Hill, 3 Ex. 801. If the de- fence is that the nuisance, if any, is of a public nature, and that the plaintiff has sustained no special damage enabling him to sue. then the special damage may be traversed in terms. Ante, " Libel; " and Hobson v. Thellusson, 36 L. J. Q. B. 302. The inducement or assertion of right ought also to be trav- ersed specially. Frankum v. Lord Falmouth, ante, 635. In a declaration for a nuisance, the inducement, or assertion of right to the thing affected (see per Patterson J. Cotton v. Brown, 3 Ad. & E. 312), as that the plaintiff was entitled to the enjoyment of the support of defendant's house or foundations, &c. or was entitled to the enjoyment of water, &c. or was possessed of a house, &c. is not denied by not guilty, and therefore must be specially traversed in the words of the averment. And see per Tindal C. J. in Ross v. Groves. 5 M. & G. 613. Thus to an action for removing land which supported plaintiff's house, the defendant might plead: 1, that the land on which the plaintiff's house stood was not supported, &c. by the other land; 2, that the plaintiff was not entitled as of right to his land being supported, &c. by the other land. See these forms, Hide v. Thornborough, 2 C. & K. 252; and similar forms, Trower v. Chadwick, 3 Bing. N. C. 339; Partridge v. Scott, 3 M. & W. 220. It is no answer to an action for a nuisance that the act which caused it was done in a proper and convenient spot, and was a reasonable use of the land. Bamford v. Turnley, [3 B. & S. 62; Cavey v. Ledbitter, 13 C. B. N. S. 470; St. Helen's Smelting Co. v. Tipping, 4 B. & S. 608, 616; 11 II. L. Cas. 632}] overruling Hole v. Barlow, 4 C. B. N. S. 334; and see Stock- port Water Works v. Potter, [7 H. & N. 160;] Nuttal v. Hracewell, L. R. 2 Ex. l. Prescriptive right to cause a nuisance. Flight v. Thomas, 10 Ad. & E. 590. As to acquiescence, Davies v. Marshall, 31 L. J. C. P. 61. See ante, 580, Obs. [1. Plea justifying the Removal of [Coping Stones'] because they over- hung Defendant' 's Land. That at the times of the alleged trespasses he was possessed of lands adjoin- also, Kent r. Great Western Ry. Co. 3 C. B. of a county court. Tarrant v. Baker, 14 C. 714; 10 L. J. C. P. 72; and see a plea in B. 200. By commissioners under a local Braham p. Watkins, L6 L.J. Ex. 9; Rich- act, .Mason v. Birkenhead Commissioners, ards v. Easto, 15 M. & W. 2-U. By bailiff 6 H. & N. 72. PLEAS IN' TORT. PATENTS. ing the said land of the plaintiff, and the plaintiff bad 1 mil t tl, the extremity of his said land oexl to the Baid land of the di Fend had wrongfully so placed the said | coping Btones] on the Baid [wall j th then wrongfully extended beyond the Baid [wall] and overhung i bered the said land of the defendant, wherefore the defendant n the said [coping stones] from and off liis Baid land to :i -mall and con tance into and upon the said land of the plaintiff, which was th< place for putting the same, and there left them for thi plaintiff's use, doing no unnecessary damage in thai behalf, which are the alleged trespa Plea justifying obstructing u watercourse used />>/ plaintiff' through land ■ third party, because it discharged water mi t<> the defendants land. S B erts v. Rose, L. R. 1 Ex. 82. 2. Plea justifying a Tresjiass to aba/< ,i Nuisaru That before and at the times of the alleged tresp i- be I J ] ■•• • messuage and premises adjoining the said messuage and premises of the plain- tiff, and the said [pipe and flue] were used by the plaintiff for the emission of smoke and sparks therefrom], and were wrongfully a nuisance to the defend- ant in the use and occupation of his said messuage and premises, and dangerous to his said messuage and premises, and prevented him from con- veniently and safely enjoying the same; and although before the alleged ti passes, or any of them, the defendant requested the plaintiff to remove the said [pipe and flue] and abate the said nuisance, and a reasonable time in that behalf had then elapsed, yet the plaintiff neglected and refu to do ; wherefore the defendant afterwards, for the purpose of abating the -aid nui- sance, took the said [pipe and flue] and removed them to a short and con- venient distance and there left them for the plaintiff's use, doing no more than was necessary for the purpose aforesaid, which are the tr< spasses.] PATENTS. Ante, part 1, pp. 218, 443, "Patents;" part 2, " Injunctions," • P 1. General Issue, (n ) "Not Guilty." ante, 635. (m) A plea justifying entering into an- In) The plea of not guilty denies only the other's close to abate a nuisance, mas! show fact of the infringement, that is, the previous notice to remove it, that the plain- as alleged in the declaration, and tiff was a wrong-doer in placing it there, or the defendant might show thai th< that it was immediately dangerous to life or made or the pnrsned bj I health. Jonesi>. Williams, 11 M. & "W. 176. substantially different from the plain [Form of plea where plaintiff wrongfully v. ■-. 114, n placed his goods in defendant's close, where- CTnwin, 13 M fore defendant entered to remove them to issue the intention, plaintiffs close. Rea v. Sheward, 2 M. & W. C. B. 806 ; and Be ft. G I 424.] The law respecting the right to abate The validity of the p a private nuisance will be found much dis- puted bv a defem sed [in Perry v. Fitzhowe, 8 Q. B. 757 ;] altiea under B fi 6 w and see Jones v. Williams 11 M. & W. 176, Myers v. Baker, 3 II. N and ante, 580; 3 Bl. Com. 5; Yin. Abr. a deed of License that th Nuisance, W. 2, I'l. 3. worl the kip. <;;> PLEAS IN TOKT. PATENTS. 2. Plea traversing that the Plaintiff ivas the Inventor. (0) That the plaintiff was not the first and true inventor of the said manufact- ure, as alleged. 3. Plea denying that the Invention was new. (jo) That the said [undisclaimed part of the said (t the letters-patent A. B. and others publicly used and exercised a part of the said inven- tion, were not allowed. Bentley v. Keighley, ubi supra. (s) See a form in Nickels r. Ross, 8 C. B. 686; [Harwood v. (heat Northern liv. Co. 2 B. & S. 194 ; Jordan v. Moore, L. R. 1 C. P. 624.] This defence could not be taken under any other plea. Gillett v. Wilby, 9 C. & P. 334; Walton v. Bateman, 3 M. & G. 77:'.; Spilsbury v. Clough, 2 Q. B. 474. If the specification is not set onl in the declaration, it might be in this plea, when the question could be decided on demurrer. Per Tiudal C. J. Gibson v. Brand, 4 M. & G. 197. (t) Other forms, Stead v. Anderson, 4 C. B. 806; Bedells v. Massey, 7 M. & G. 631; 13 L. J. C. P. 176. In Nickels v. Ross, 8 C. B. 684, this was allowed to be pleaded in two pleas, one denying that the manufacture was an improvement, and the other that it was of any use to the public; for" the invention may be an improvement, and yet may be of no PLEAS IN TOUT. l'ATJ 7. Plea that the Invention was j injudicial to th /' Morgan v. Seaward, 2 .M. & \Y . ."»!". ; Cornish v. B B Stead v. Williams, 7 M. & G. 821. 8. Plea denying the Grant of the PaU ,,i. < ., ( •• Xmh concessit" That her majesty did not, by Letters-patent, granl the plaintiff thi ilege to make, use, exercise, and vend the said invention, as alii 9. Plea denying the Enrolment of a sufficient Sp< That the plaintiff did not, within six calendar months after the d the said letters-pa lent, cause to be enrolled in (he high courl of chancen an instru- ment in writing under his hand and seal, particularly describing and asct rtain- ing the nature of the said invention, and in what manner the Bame u and might be performed, as alleged. 10. Plea that the Specification does not sufficiently describe th I tion. (z) That the plaintiff did not, within six calendar months nexl after the date of the said letters-patent, describe or ascertain the nature of the said invention, and in what manner the same was and is to be or might be performed, alleged. - 11. Plea that the Description of the Invention was too vague, and i variance with Description of the Invent ion in the Specification. I Stead v. Anderson, 4 C. B. 811 ; Beard v. Eg rton, 15 I.. J. C. P. 270. nse, or prejudicial to the public." Per Tin v. Fairrie, 2 Cr., >r & R, 476 dal C J. Bedells v. Massey, ubi supra; and will nut let in thi see, also, per Maule J. same case. See, also, larger than I iption; I Russell w.Iiedsam, 11 M. & W. 647 ; I \). & Lord \ < B L. 347. B. in Cook v P - Q B 104 1; nor that (u) See note to the last form, and 2 1 Jac. the invention i that 1, c. 3, s. 6. it is the s (./■) See form, Bedells v. Massey, 7 M & Webs, on PatentR, 111 G. 631. Where the action is by the assignor longer Form, Stead . I I C. of a patent, this plea will be allowed, together The meai with a traverse of the assignment. Bunnett court, the words of art being fir y. Smith, 13 M. & W. 552. The plea of nul preted by a jury. \ H tiel record cannot be pleaded to a declaration M I W, for the infringement of a patent See Hind- under thi- • make ■ marsh on Patents, 263. irly. Bickford v. Skewer, l Q (y) This is a traverse of a material fact. As to what i- a sufficient ' : Bentley o Goldthorp, 1 C. B. 368. A plea son o. Harford, - M was held bad a< argumentative which stated disclose the m"~ - beneficial • that plaintiff enrolled an instrument in knows. D>. When the title was I writing as follows, &c. [setting it out], and ments, and the specification d - thai he enrolled no other. Mum/ v. Pons- improvement, il was I. tcr, 6 M. & G. 734. For other forms, and invalidate the patent N for a form denying that thi was duly M S G. 337 \ • ■ described, Nickels v. Ross, 8 C. B. 687. enerality, Booth o. K I H (:) See form, Stead v. Williams. 7 M. & (J. s-2i ; Bentley v. Goldthorp, I C. B \ Under this plea plaintiff must give ><>u\>- there h.\< been fraud on Blight evidence of what his invention was. dice t'> the public. I 2 U Turner v. Winter,! T. R. 602; Derosne 1044 On' pleas in tort, patents. 12. Plea that the Invention was known, published, (7>) and used before the Grant of the Letters-patent. Stead v. Anderson, 4 C. B. 811. 13. Plea that the Letters-patent were altered, and thereby became null and void ; and Replication. Nickela v. Ross, 8 C. B. 680 ; Thomas v. Welch, 35 L. J. C. P. 200 ; L. R. 1 C. P. 192. 14. Ph a thai the Report of the Judicial Committee of the Privy Coun- cil and the Letters-patent thereupon were procured by Fraud, Covin, and Misrepresentation. Russell v. Ledsam, 11 M. & W. 647 ; [Bedells v. Massey, 7 M. & G. 630.] 15. Plea that the Letters-patent were obtained upon a False Suggestion in the Plaintiff' 's Petition, (c) Nickels v. Ross, 8 C. B. 680, 723. 16. Plea that the Disclaimer extends the Exclusive Right granted by the Letters-patent. Seed v. Higgins, 8 El. & Bl. 757 ; Ralston v. Smith, 35 L. J. C. P. 49. 17. Plea that the Invention described in the Specification as altered by the Disclaimer is another and different Invention from that for which the Patent was granted. Seed v. Higgins, [8 El. & Bl. 757. See Bateman v. Gray, 8 Ex. 906 ; Hancock v. Noyes, 9 Ex. 388 ; Hills v. London Gas Light Co. 5 H. & N. 312.] 18. Plea that the Infringement was before the Disclaimer, $c. men- tioned in the Declaration. Perry v. Skinner. 2 M. & W. 471. 19. Particulars of Objections to be delivered with the Pleas in an Action for the Infringement of a Patent {Patent Law Amendment Act, 1852, 15 ^ 16 Vict. c. 83, s. 41). (d~) In the '). B. [C. P. or Ex. of Pleas]. A. B., plaintiff, against C. D., defendant. (})) Publication does not mean a use by (d) These particulars are neee-.sary under the public, bul a use in public; Bentley v. 5 & 6 W. 4, c. 83, s. 5, and the act above Fleming, 1 C. & K. 587; so as to come to cited. See, also, ante, p. 586, "Patents." the knowledge of others than the inventor, They must be delivered with the pleas, but as distinguished from the use <>f it by him- they do not form part of the record. self in private. Carpenter v. Smith. 9 M. & Reg. v. Mill, 1 L., M. & P. 695 ; 20 L. J. C. W.S00. As!', previous publication sufficient P. 16. If the particulars delivered are too to avoid the grant, Morgan v. Seaward, 2 M. general, the party objecting must procure an & \V. 544. order f,.r better particulars (Hull v. Bollard, {<■) See, also, Morgan v. Seaward, 2 M & 1 H. & N. 134; Bulnois v. Mackenzie, 4 Bing. W. 544. N. C. 127), as he cannot object at the trial PLEAS IN TORT. PATEN Take notice, that the defendant in this acti besides denyii infringed the letters-patent in the declaration mentioned, will mi u. on the following objections In support of the pleas in thi i : — 1. That the defendant did nol infringe the alleged patent ru: 2. That the alleged inventor was qoI the first and true inventor. 3. That the alleged invention was not new. 4. That the alleged invention was nol for the working or mail manufacture for which letters-paten! could by law be granted. ."). That the alleged invention was not any manner of improvement (i. That the alleged invention was not useful or beneficial or advant to the public 7. That the invention was prejudicial to the public. 8. That her majesty did nol grant the said privilege, a.^ alleged. 9. That a sufficient specification was not enrolled. 10. That the specification so enrolled as alleged did not sufficiently di the invention. (/) 11. That the specification so enrolled claims a principle, and i- not confii . to the proper suhject of letters-patent. 12. That prior to the date of the said letters-patent th d invention was published^) at in the following manner [state mode of publica- tion]. 13. That prior to the date of the said letters-patent the alleged invention was used (A) at in the following manner [state mode of use']. that they are too general; Nielson v. Har- ford, 8 M. & YV. Nil',; in- uo heyond ll which have lieen delivered. Maenamara r. Hulse, 1 Cr. & M. 471 ; Patent Law Amend- ment Act, 1852, s. 41. Either party will he allowed to amend on application to a judge. Patent Law Amendment Act, 1852. A de- fect in them will not be aided by the partic- ulars of breaches delivered by the plaintiff. Palmer v. Cooper, 9 Ex. 231 ; Palmer v. Wagstaffe, 9 Ex. 494. The defendant may object to the validity of the assignment of the patent, though no notice of any o tion to it has been given by him. Cholletl v. Hoffman, 36 L. J. (.,>. B. 249. The partic- ulars must be precise and definite. Fisher r. Dewick, 4 Bing. N. C. 706 ; Wehs. P. C. 264; Heath v. Onwin, 10 M. & W. 684 ; 15 Sim. 552; Jones v. Berger, 5 M. & G. 208; Clark r. Kenrick, 12 M. & W. 219. If the tion be that the patent is not new, the tor should specify whether lie objects to the patent generally on that ground or to part only ; and if so, to what part. Russell v. Ledsam, 11 M. & W. 647. So if he obj that the [latent was obtained by fraud, he ought to state the species of fraud on which he intends to rely. lb. See Bentlei v. Keigh- ley, 1 1). & L. 946. 5 & 6 W. 4, 6, enacts that in taxing the costs of Bucb ons regard shall be had to the pari of such case which has been proved tit the trial, winch shall be certified by the presiding judge, and the costs of each part of the case shall be given according as cither party 1ms succeeded or failed tie had to the notice of objei counts in the declaration, and without gard to the general result of the trial, effect of ; he Btatut is to make I ate issues, and the to the dctermin; objection of which notice has and not a< to tbi Losh v. Hague, 5 M 8 >' Patent Law Amend at A the plaintiff, after ui\ ing notice of tri dons the action, the defendant, h&\ ! ered with his pleas particulars • is entitled to his costs of i par- ticular- and the e\ idence in sup hem. . es v, Eastern ( 'ounti L. J. Q. B. 290. < >ih' rwise wl after trial commenced, eli Buited. Honiball v. Bl uer, 10 i 24 I- -1. Ex. ll. • and trie r Heal Qnwin, 10 M 11 M. 8 W 647. I if v. Topham, 1 1 M S W ((/) If the notio hat the i published in books, 1 1 named. S( d <■■: I . .1 :• ■ I '■ (h) The place where t! must be nan , i ,. 208 . 1 he Hon- Webs. Pat i . 682 PLEAS IN TORT. PAYMENT INTO COURT. 14. That after the alleged letters-patent were granted as alleged they were altered in the following manner [state how altered']. \_Other objections may be similarly stated according to the nature of the par- ticular case.] Yours, &c. E. F.. defendant's attorney [or " agent "]. To Mr. C. D.j plaintiff's attorney [or "agent"]. See forms, last edition of this work, p. G67. Chitty's Forms, 9th ed. 825 ; Hullr. Bollard, 1H.& W. 134. PAYMENT INTO COURT. Obs. — See rni.f, 447, " Payment into Court" in actions on contract. By the common law procedure act, 1852 (15 & 16 Vict. c. 7G, s. 70), " It shall be lawful for the defendant in all actions (except actions for assault and bat- tery, false imprisonment, libel, slander, malicious arrest or prosecution, crim- inal conversation, or debauching of the plaintiff's daughter or servant), and, by leave of the court or a judge, upon such terms as he or they shall think fit, for one or more of several defendants to pay into court a sum of money by way of compensation or amends." Payment into court in libel is not effected by the above statute being excepted from it, but is regulated by 6 & 7 Vict. c. 95. This power of payment into court is further extended by the common law procedure act, 1860, 23 & 24 Vict. c. 126, s. 25, to actions of detinue "To the value of the goods alleged to be detained;" but the leave of the court or a judge must be ob- tained. And by the common law procedure act, 1852, s. 73, " The plaintiff, after a delivery of a plea of payment of money into court, shall be at liberty to reply to the same by accepting the sum so paid into court in full satis- faction and discbarge of the cause of action, in respect of which it has been paid in, or he may reply that the sum paid into court is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded." In replevin " The plaintiff may in answer to an avowry pay money into court in satisfaction." as in other actions. Common Law Procedure Act, 1860, s. 23. And such payment " Shall not, nor shall the acceptance thereof by the defendant in satisfaction work a forfeiture of the replevin bond." S. 24. There are several statutes enabling particular persons to pay money into court in particular actions. As in the case of justices, 11 & 12 Vict. c. 44, s. 11; see Aston v. Perkes, 15 M. & \V. 385; Thompson v. Shephard, 4 El. & Bl. 53; assignees of bankrupts, 12 & 13 Vict. c. 106, s. 158; local boards of health, 11 & 12 Vict. c. 140, s. 139. Payment into court in actions on tort has the same effect as in actions of con- tract. It admits a cause of action with damages amounting to the sum paid into court. But it does not necessarily admit the cause of action stated in the declaration. Schreger v. Carden, 11 C. B. 851; Story v. Finnis, 6 Ex. 123; Robinson v. Harman, 1 Ex. 850. Thus, if the declaration is genera] and unspecific, although it admits a cause of action, it does not admit the cause "i action sued lor, and therefore the plaintiff must give evidence of that Cause of action before he can recover larger damages than the sum paid into Court. IVrren c. The .Monmouthshire &c. Co. 22 L. .7. C. P. 162. On the other hand, if the declaration i< specific, so that nothing can lie due from the defendant to the plaintiff, unless the defendant admits the particular claim made by tin- declaration, it admits the cause of action sued for and staled in die declaration. lb.; [Bacon v. Charlton, 7 Cush. 581; Hosmer v. Warner, 7 Gray, 186; 2 Chitty Contr. (11th Am. ed.) 1185, 1186, and note (F).] If the plea of payment into court be pleaded to part only of the claim, plaintiff will not be allowed to pass over the pleas to the other part without trial, or PLEAS IN TORT. REPLEVIN. Obs. — paving the costs of a nol. pros, on them. Bumbelow v. Wl | B 397. Pleas in denial will aot be allowed to any pari >>t the cause i I by the plea of payment into court. Thompson v. J Dowl. 591; Gales v. Bolland, 7 El. & HI. 836; Hart D . l 11. 609. The forms in contract, ante, l 19, may easily be adapted. PROCESS. See post, " Sheri , UKLKASE. Obs. — See form in contract, ante, 45."<, which will apply in tort, that '' after the committing of the grievances in the declaration mentioned, and before, &e." RELINQUISHMENT OF PLEA. Obs. — Ante, " New Assignment." See a form confessed to be bad after :i de- murrer to it. M'Intyre o. Miller, 13 .M. & W. 725; 2 D. & L. 708. B H. T. 1853, "The defendant shall nol be al liberty to waive bis plea, or enter a relicta verificatione after a demurrer withoul leave of the courl or ;i judge, unless by consent of the plaint ill' or hi> attorney." S David Bohn, 5 C. B. 170. REPLEVIN. Obs. — See ante, 231, Obs.; 591, Obs. By the common law procedure a (15 & 16 Vict. c. 76), s. 67, " No formal defence Bhall be required in ;i p avowry, or cognizance," and no formal conclusion Bhall be neceasar the common law procedure act, 1860 (23 & 24 Vict. C. 12 the plain- tiff in replevin in answer to an avowry may pay money into court her actions; and by s. 24, such payment into i rl or acceptance thei the defendant in satisfaction shall" not work a forfeiture of the repl nd. Non cepit is the proper plea where the defendanl denies tha party distraining; or that he took or had the distress in the p in the declaration, and relies on a mistaken description of the but in this latter case, in order to have judgment tor a return ol the the defendant should plead that he took the goods or cattle in another ; describing it, not in the place mentioned in the declaration, and then add avowry of the taking, showing the cause, l Saund. 847, note ti I Bullythorpe v. Turner, Willes, 475; 3 Chit. PL 7th ed. this "instance must amend his declaration or traverse the taking in the mentioned in the plea; he cannol traverse the A taking alle avowry. lb. Non cepit does not enable the defendant to dis] pla tiff's property in or possession of the g Is (see form 2, I 1 •' M. & Rob. 544), or to justify the caption. It is suffici prove on this issue that the defendanl originallj ir afterwards h, detained, the -oods i.i the /.»<■«*/« quo. But there must b. the possession of the owner. Mennie v. Blake, 6 El. & BL B. 399. See lb.; 3 Stark. Ev. 3d ed. 970; Com. D P wler, 13. Where the defendant made Beparate avowries as to a hou a plea in bar that the defendant took one joinl diBtreaa ia bad. i Whitsed, 29 L. J. Q. B. 164. 684 PLEAS IN TORT. REPLEVIN. PLEAS. 1. Plea of Non Cepit. On the day of , A. D. And the defendant, by , his attorney, [or " in person,"] says that he did not take the said cattle, goods, and chattels [as in declaration^, or either of them, as alleged. 2. Plea denying the Plaintiff's Property in the Goods, (i) That the said goods and chattels were the goods and chattels of the defend- ant [or " one E. F."], and not of the plaintiff, as alleged. AVOWRIES, COGNIZANCES, ETC. Obs. — Where the defendant admits the taking, but justifies it in bis own right, he does so by an avowry : if in right of another, by a cognizance. Many of the forms in trespass, post, justifying distresses, &c. may easily be converted into avowries, and vice versa. ANNUITIES. Avowry, ^c. for an Annuity or Rent-charge. Obs. — See forms, James v. Salter, 2 Bing. N. C. 505; 3 Bing. N. C. 544; Richard- son v. Tomkies, 9 Bing. 51; Caunt v. Ward, 7 Bing. 608; [Owens v. Wynne, 4 El. & Bl. 579.] Cognizance as bailiff of the grantee of an annuity charged upon the locus in quo, and granted by a tenant for life. Millers. Green, 2 C. & J. 142; in error, 8 Binp;. 92. The plaintiff might reply that no memorial of the annuity was enrolled. See ante, 300; and Hogarth v. Penny, 14 M. & W. 494, where, also, see subsequent pleadings. [Darlow v. Edwards, 1 H. & C. 547.] Avowry for a rent-charge. Beaupark v. Hutchinson, 7 Bing. 178; Johnson v. Faulkner, 2 Q. B. 925. If the plaintiff holds under a demise made prior to the rent-charge, that should be specially replied. lb. ; and see Saffery v. Elgood, 1 Ad. &E. 191. DAMAGE FEASANT. Avowry or Cognizance for Distress for Damage Feasant. (&) That before the said alleged taking, the said close was the close, soil, and freehold of the defendant [or " of one E. F."], and because the said cattle were [then wrongfully] in (/) the said close eating the grass there and doing damage to the defendant [or " to the said E. F."], he the defendant well avows [or (i) Bull: N. P. 52, 54; Carth. 244; evi- 8 M. & W. 369; and then show that lie de- dence, 1 M. & 11. 301. In order to entitle mised the said place in which, &c. or a cer- the defendant to a return of the goods they tain part of it; see 1 Saund. 347 d, note must be alleged to he his. Com. Dig. PI. (5) ; the entry of defendant, and that he was 3 K. 13. possessed until the said time, when, &c. and (/.•) Form, Jones r. Richard, 5 Ad. & E. conclude as in the text. Avowry bv com- 413 ; [Prichard v. Powell, 10 Q. B. 589.] See moner, 3 Chit. PI. 7th ed. 308. Pleas in bar, 1 Saund. 347 d, note (6); 2 Saund. 284tf; lb. 2 Harr. 1ml. tit. Distress. In trespass the (/) The party distraining must pet into defendant may rely only upon his possession the close before the cattle have left ir; Clem- in the above instance, bat in replevin a. title ent v. Milner, 3 Esp. R. 95; but when the to the close must be Bhown. If the defend- distress is once made, a tender is too late to ;mt were the lessee or yearly tenant of the entitle the plaintiff to maintain replevin. Teeholder, state that the latter was seised in Gulliver v. Cozens, 1 C. B. 788. Tender ois demesne as of fee, see Smith v. Adkins, before the distress makes the distress tor- PLEAS IN rORT. REPLEVIN. "as bailiff of the said E. V. wtll acknowledges"] the takii g ol in the said close ;uid justly [^'''-J :1 s1 for a distress for th< Ous. ■ IIICMW AY I! \ I I — Where a constable justifies under a justice's warran, must show thai the justice had jurisdiction over the f. Martin, 3 M. & G. 594; Jones v. Chapman, 14 M. & W. 124 2 D. 907. As to a surveyor's assessment, see Morrell v, Barvi 5 & (i W. I. C 50, b. 29. JUSTIi ES. Avowry for a Distress by Justices ( under 18 Q-eo. 3, e. L9 I, ordered to be p aid on Complaint heard befort them. George v. Chambers, 1 1 M. & \Y. 1 LANDLORD AND TENANT. 1. Common Avowry or Cognizance for Rent in am ar. ( m » That the plaintiff [or "one G. H." accord 'in g to the fact], (n) for all time during which the rent hereinafter mentioned to be distrained for was cruing due, and from thence until the time of the said taking, (0) held the tious. 'render after the distress, and before the impounding, makes the detainer wj ful, and detinue may he brought. After the impounding a tender is of no avail. Thomas r. Barries, 1 M. & G. 695; Singleton v. Wil- liamson, [7 II. & N. 410.] (in) To remedy the difficulty a landlord was under at common law in stating a title in detail, the statute 11 Geo. 2, e. 19, s. 22, enacted, that " all defendants in replevin may avow or make cognizance generally, that the plaintiff, or other /< nant of the lands and tenements whereon such distress was made, enjoyed the same under a grai demise at such a certain rent during the time wherein the rent distrained for in- curred, which rent was then due and sill re- mains due; or that the place where the dis- tress was taken was parcel of such certain tenements held of such honor, lordsh manor, for which tenements the rent, relief, h. riot, or other service distrained for, was at the time of such distress and si ill remains due ; without further setting forth the grant, tenure, demise, or title of such landlord or 1 nuUords, lessor or lessors, owner or owners such manor." See Poole v. Longrid Saund. 284c; Banks v. Angell, 7 Ad. S E. 84:;. See forms, &c. 3 Chit. PI. 7th ed. 294; Innes v. Colquhon, 7 Bing. 265, and decision there as to the form ; Daniel v. Gracie, 6 Q. B. 145. See a form where rent partly due from defendant's intestate, and the rest after his death. Braithwaite o. Cooksey, 1 H. Bl. 465. The statute I I 2, c. 10", s. 22, applies although the rent wire payable i>\ special agreement in advance. Charters v. Sherrock, 1 Alcock & Napier, 17, 506, Irish. But the statute, though it .vat-rants a general avowry, does not dis- wiih the necessity ol of holding; as to the parties who « lord and tenant, the amount when payable. / imes useful to a\ ow as at common setting out tb specially, in order to compel the plaint take issue on a portion only of in ant's case, and thus admit th it it must be remembered that the BF in replevin maj plead in bai and thus this object is often frustral avowry admits the plaintiff's tit! g Is ; ( lai ke V. D i/ur the locus in quo. An avowry bj at in his own right as yearly tenai cognizance bj - bailiff • tenant in fee, « dl be allow ■ an- ,-. Davi« },8 Ad Wh( i taking, or the plaintiff" denied by the landlord, th , 684, tonus 1 and 2. \ or cognizanci iznnce '| the said » 1 1 I in a bouse and brewery, wh< n justified the taking in the houi B, rei sed at the trial to ment Bupplyin ; I M (n) It is was. Banks Ai (•>) If the tenancy expired I - and the di-t c ii|u hicb wai the end landlord's inl in default remain in | ; Peters, 7 A 686 PLEAS IX TORT. REPLEVIN. dwelling (p) house as tenant thereof to the defendant [or " E. F."(<7)] by virtue of a demise thereof at the yearly rent of £100, (r) payable half-yearly [or "quarterly"], on the [24th] day of [June] and on the [25th] day of [Decem- ber] [this must correspond with the facts (r)] in every year, by even and equal portions ; and because the sum of [£150 (s) of the rent aforesaid was in arrear from the plaintiff [or " the said G. H."] to the defendant [or " the said K. F."], he the defendant well avows [or "as bailiff of the said E. F., well acknowl- edges "]. the taking of the said [cattle], goods and chattels in the said dwelling- . and justly [4" c «]> as for a distress for the said rent so in arrear, and which still remains (t) due and unpaid. 2. Avowry for Double Bent for holding over after Notice. Humberston v. Dubois, 10 M. & W. 765; [Johnstone v. Huddlestone, 4 B. & C. 922.] above form will not apply; Williams v. Stiwn. 15 L. J. Q. B. 321 ; Com. Dig. Dis- tress, A. 2 ; and sec form in such case, 3 Chit. PL 7th ed. 298. If the landlord had no re- versionary interest at the time of the, distress, and this be pleaded in bar, the plaintiff will succeed. See Preece v. Corrie, 5 Bing. 24; Hooker v. Nye, 1 Cr., M. & R. 258; and forms, Ih. (p) Page v. Church, 10 Moore, 264; Har- greave v. Shewin, 6 B. & C. 34. (q) The strictest accuracy is essential in stating of whom the tenant field. See a case of variance, Philpott v. Dobbinson, 6 Bing. 104; and see Drew v. A very, 13 M. & W. 399. But this may he avoided where the distress has been for manorial services, as by 21 Hen. 8, c. 19, s. 2, an avowry or cogni- zance without naming the landlord is good, if the distress be alleged to be within his fee or seigniory ; and sec Banks u.Angell, 7 Ad. & E. 846, as to stating the landlord to be a per- son unknown. lb. Coparceners must join in an avowry for rent; tenants in common must sever except on a distress damage feas- ant; a joint tenant may distrain for the whole rent, but should avow for part only in his own right, and make cognizance as bailiff to the rest; a husband may avow in his own name for rent due to his wife. 2 Bing. 71 : I Chit. PL 7th ed. 593; Harrison v. Barnby, 5 T. \l. 246. Form of avowry by joint tenant, Pullen v. Pilmer, Carth. 328. One or two joint tenants may demise his or their portion to another so as to create the n of landlord and tenant be- tween them, with a right to distrain in re- Of rent in arrear. Cowper o. Fletcher, 34 L. J. Q. B. 187. In ea-e of doubt, add ting the tenancy under another party, of whom probably plaintiff held. As to a ratification by a landlord of a distress not authorized by him, Taylerson v. Peters, 7 Ad. & E. 110. So by an ex- r. Whitehead v. Taylor, 10 Ad. & B. 210. (r) In order to support a distress there Trust; be a demise at a specified fixed rent; there can be no distress except for an agreed rent ; Dunk v. Hunter, 5 B. & Aid. 322; and a demise of a marl pit,' and 8d. a solid yard for all marl got, is sufficiently certain ; Dan- iel v. Gracie, 6 Q. B. 145, where see form of avowry ; as to right to distrain where there is an agreement for a lease ; Anderson v. Midland llv. Co. 30 L. J. Q, B. 94; or for sale. Yeoman v. Ellis, 36 L. J. C. P. 326. A variance as to the yearly amount of rent, or the times when payable, would formerly have been fatal ; Brown v. Savce, 4 Taunt. 320; Cossey v. Diggons, 2 B. & Aid. 546; Smith v. Walton, 8 Bing. 235 ; Sergeant v. Chafv, 5 Ad. & E. 356; unless the judge per- mitted an amendment at the trial, which now would be allowed almost as a matter of course, and if necessary, the conversion of this general avowry into one at common law. Roberts v. Snell, 'l M. & G. 577. Where rent is at a certain sum per annum, and no express agreement is made in regard to the times of payment, it seems that it is payable yearly, and that an avowry, not stating the time of payment, would be deemed au alle- gation that the payment was to be annually only. Latch, 264 ; Laycock v. Tuffeell, 2 Chit. K. 531. (s) It is not necessary to prove that all thai is here laid was due. The action is de- feated if less than the amount distrained for and here claimed was in arrear. Forty v. Itn- ber, 6 East, 434 ; Johnstone v. Hudlestone, 4 15. & C. 938. As to whether a jury may find a verdict for a less sum due on an apportion- ment, Neale v. .Mackenzie, 2 Cr., M. & \l. 84 ; but reversed on error, 1 M. & W. 747. A man may distrain for one :ause and avow lor another. Short r. Bubbard, 2 Bing. 446 ; Phillips v. Whitsed, 29 L. J. Q. B. 164. It t. to admit a part payment and avow for the sum really due, to avoid the expense of a plea in bar of part not due. 3 Chit. PL 7th ed. 477. (t) This allegation is not material or trav- ersable. Clarke v. Davies, 2 Marsh. 386 ; 7 Taunt. 72. PLEAS IX fORT. REPLEVIN. 3. By Executors for Rent due to their 3 Moore, 638. See 3 & 4 W. I. <•. 12, .81 I Ad. 849 ; Staniford v. Sinclair, 2 Bin LIEN. Avowry by Carrier* justifying uruh r a (<< m rul !.'>■ n. Galloway v. Bird, 4 Bing. 2'.)'J. See the pleas of lien, post, • I MORTGAGE DEED. Avowry zvhere the Riyht to distrain was created by ■> M ■' /■ between Plaintiff and Def ndant. Chapman v. Beecham, 3 Q. B. 7'2~. < PLEAS IN BAR. 1. Plea to an Avowry for Rent ; Denial of the T, nancy. < y ) That the plaintiff [or " the said (J. B."] did nol hold the said [dwellii house] as tenant thereof to the defendant, as alleged. (u) A cognizance by defendant a- bailiff of an executor, for rent due to the testator, is supported by proof of a distress by him in the name of the testator by his direction, but after his death, such distress having been made before probate, but adopted and rati- fied by the executor. Whitehead v. Ta 10 Ad. & B. 210. (./•) A mortgagor in possession is prce- sumptu juris entitled to distrain as bailiff of the mortgagee. Trent v. Hunt, 9 Ex. 14 ; 22 L. J. Ex. 318. ( :i in Bar. P • i * in Arrear. (z) That no part of I supposed rent in the said avowry and cognizance may b<~\ mentioned was in arrear from the plaintiff to the said I lant vas JBaUiff. (a) Th:." rendant was not the bailiff of the said E. ¥.. as alleged. 4. . 'Payment to a M • Premii 9, ..nson r. Jones. 9 Ad. & E. 9 \f Payment into Court. (6) The plaintiff, as to the defendant's avowry [or •• cognizance "] by him above pleaded, brings int I the sum of £ . and says that the said sum is enough to - he claim of the defendant in respect of the matter in the I avowry [or- _ .'.leged. n Bar. Dt *f the Lai UoroTs Seversionarg Interest. S •:- forms. A:c. and law. Pascoe v. Pascoe. 3 Bin^. X. C. 808 ; and Preece v. Corrie. ■:> Bing. ~2±. the ted; 3 B. & Ad. 586; [Smith v. Mapleback, 1 T. R. 445.] Qu. whether non tenuit or non demisit would be sufficient. See Pa- Hooker v. Nye, 1 Cr.. M. & R. 258, 260. 7. Plea in Bar, that the Good privileged as being on the Prem- i in the way of t' t '.- Z! S e forms. Muspratf r. Gregory. 1 31. i TV. 633 : Thompson v. ATashiter, IB:. 2? nd a form in trover. Gibson v. Ireson. 3 Q. B. 39 ; post. Pleas in T --." Plea of privilege, the goods being implements of husi - . Aston, 1 C. B. 746: lb. being in the hands of a corn- mi; gent for sale. Findon v. M'Claren. 6 Q. B. 891. v . P- i '/ B '/• t ■ an A ■ Rent in Am r * the B>7it a the taking and I 'impounding, (c) S e form. Evans v. Elliot c E. 142; Thomas v. Harries, 1 M. & G. him the rent. Franklin r. Carter, 3 D. & Eggintan, 8 C. & P. 74t - -ark. Ev. 3d ncy npon the (a) Evidence of a prior authority ti rain, or of a snbseqnent approval and and ■ rent was ognition of the act, without sh _ rrior due. - the d>: will succeed command, will be necessary to support this -jn if any sum were du- _ - '. -a. Trevillian p. Pine. 11 Mod. 112: Yin. than Evidence of Ab. Bailiff, D. ; 2 Stark. Ev. 3d ed. 975 the ; _ compelled to pay See Taylerson v. Peter-. 7 Ad. & E. 110. other the land- Authority to receive rents no author: - a, and no distrain." Ward v. Shew, 9 Bing. C - ilmit proof of S mmon Law Procedure Act, such pa - Ex. I- 23, and ante, Oba, 684 But Bocfa ; often specially (c) After impounding, and any time before plea B The plaintiff sale, the tenant may tender the rent and ex- must prove t. and penses,andan n afterwards is wrong- therefore must begin at the trial. Cooper r. ful. Johnson v. Upham, 28 L. J. Q. B. 252 PLEAS IX TORT. REVERSION. 695 ; and see Loring v. Warburton, [EL, BL ov Kl. 507.] Plea the distress. 3 Chit. PI. 7th ed. 486. Tender on the land, [h v. Field, [8 El. & Bl. 336;] and see replication of tender. 1 • &c. Ry. Co. 3 H. & N. 809. Release of the rent ( v. Robin .. 10 M. & W. 694 PLEAS IN BAR TO AN AVOWRY FOB A\ ANNUITY BEQUEATHED BY WILL. 1. Denial of the Will. That the said D. R. did not make and publish his last will and b I in writing, as the defendant has in his said avowry alleg 2. Denial of the Bequ That the said D. R. did not give and bequeath to the defendant I.. EL, her assigns, one annuity of £ , for and during the term of her natural life, if she should so long continue a widow and unmarried, as the defendant h his said avowry alleged. 3. That the Testator was non compos. That the said D. R. at the time of making and publishing the said will and testament in the said avowry mentioned, was not of sound and disposing mind, memory, and understanding. 4. That the Annuitant (a Widou>~) committed Adultery ; and Repli- cation, Absence of the Husband for Seven Years with /<;/ heard of. Wynne v. Wynne, 9 Dowl. 397 ;2M.& G. 8. REVERSION. Obs. — Ante, 593. " Not guilty " admits the tenancy as laid, and that the pre: were in the possession of the tenant named, the demise to him by the plain- tiff, and that the reversion belonged to the plaintiff. B . 4 Bing. X. C. 702. It would deny the commission of the acts of injury chars as waste, nuisance, &c: Young v. Spencer, 10 B. & C. 145; Kidgill o. M 9 C. B. 365; but not that they were art- of a wrongful character. Bacon v. Smith, 1 Q. B. 364, note (a); Prankum v. Lord Falmouth, 2 Ad. & E. Semble, defendant might plead liberum tenementum. Where th< plained of are justified, of course there must be a Bpecial pli see Griffiths v. Jones, 1 M. & W. 781; as it" the defendant justify down a chimney, on the ground that it was a public or privati Sanford v. Woods, 7 M. ,v G. 625. A plea that the dam;!. by in- evitable accident l>y the wall of the adjoining hone ring to the defend- ant falling, and that the defendant repaired it forthwith, was held bad not alleging that the defendant entered en plaintiff's land without the lie. of the tenant. Taylor v. Stendall, 3 D. X L. 1 -;■-'. 1. For an Injury to the Plaint in" '■< /.' Plea, Denial of its T'c . That the plaintiff was not the owner or proprietor of the said vol. ii. 44 090 PLEAS IN TORT. SHERIFF. chattels, nor did the said supposed reversionary property and interest therein belong to the plaintiff, us alleged. 2. Plea that the Injur// complained of ivas a Sale by the Defendant, as Sheriff, not in Market Overt. (cT) Tancred v. Allgood, 4 H. & N. 438 ; The Lancashire Wagon Co. v. Fitz- hugh, [G H. & N. 502.] 3. To a Count for an Injury to Plaintiff's Reversion ; Pleas denying the Possession of the Property by the Tenant of the Plaintiff. That the said [messuage] was not in the possession of the said A. B. as tenant to the plaintiff, as alleged. 4. Denial that the Reversion was in the Plaintiff. That the reversion of the said [messuage] was not in the plaintiff, as alleged. [5. Plea in an Action by a Landlord against his Tenant for removing Fixtures, justifying the Removal of them as Tenant's Fixtures. That the said fixtures were tenant's fixtures belonging to the defendant, which he as tenant of the said dwelling-house was lawfully entitled to pull down and remove during his tenancy of the said dwelling-house ; and the defendant during his said tenancy carefully pulled down and removed the same, and in so doing unavoidably a little damaged the walls of the said dwelling-house, doing no unnecessary damage thereto, and the defendant be- fore the end of his said tenancy repaired and restored the said walls, which are the alleged grievances.] » SEDUCTION. See " Master and Servant," ante, 668. SERVANTS. See "Agents," ante, 637; "Master and Servant," ante, 668. SHERIFF. Obs. — As to the effect of the general issue, see R. G. T. T. 1853, r. 16, and Hodges v. Patterson, 26 L. J. Ex. 223. It would admit the judgment, the issuing of the writ, the indorsement thereon, its delivery to the defendant, that lie was sheriff, and also that lie levied the moneys. In an action for falsely returning nulla bona to a/?. /a., not guilty denies that the sheriff made the return alleged. Wright r. Laiiison, 2 M. & W. 739. The bankruptcy of the debtor before execution, or that he assigned the goods to a third person, would not be admissible under it. lb.; and Lewis V. Alcock, 3M.&W. 1S8; 6 Dowl. 389. In an action for falsely returning want of buyers, the general issue would deny that the sheriff was able to sell or raise {d) See ante, p. 594, note (m). PLEAS IN TORT. BHEBIPF. G91 Obs. the money. Rower. Ames, 6 M. & W. 747; 8 Dowl. ! put in issue on ;i plea of Qot guilty in an action for wrongful - debtor arrested on a ca. sa. Walunger v. Gurney, lit'. I;. L. J. C. P. 55. X"t guilty by Btatute in an action against the the county court. Burton v. Legros, 84 I- J. Q. B. 91; White p. M 11 C. B. 1015; 21 L. J. C. P. 185. In an action for not aire process, the plea of not guilt) will nut admit evidence to Bhow thai the plain- tiff directed the officer ool to make the arrest under the cii i I den v. Standish, G C. B. 504. Under a traverse of the levy the sheriff might Bhow thai the 1 in the assignee before the seizure could be made. II iwe v, Ann--, $w As to a plea of leave and license in an action of negligence for carelessly i ducting a sale under a Ji. fa. Wrighl v. Child, L. R. i I. and replications thereto of the production by the execution debt< tificate of the registration of a deed under the bankruptcy act, 1861, I. v. Harrison, 3-1 L. J. Q. B. 97; 85 L. J. Q. B. 153; L. R. 1 Q. B. 502; Wil- liams v. Rose, 27 L.J. Ex. 12; Dignam v. Bailey, 87 L. J. Q. B. 71; and a plea to the damage alleged. Hobson v. Thellusson, 36 L. J. Q. B. 302; [L. R. 2 Q. B. 642.] In an action of trespass, where the plaintiff proved thai the sheriff had seized the goods under an execution, and had sold them to the plaintiff, the defend- ant may show under the plea of not possessed, that -ueli sale was fraud- ulent, and that he seized under another execution. Ashby v. Minnitt. 8 A I. &E. 121. Ante, "Sheriff," "Not Guilty," "Not Possessed," "Leave and License," •'Nul Tiel Record." 1. Plea denying the suing out of the Process. That he did not sue or prosecute the said writ out of the said court, as alleged. 2. Plea denying the delivery of Process to Deft ndant. That the said writ was not delivered to the defendant, as alleged. 3. Plea that Debt ivas unthr I'l^O. That the plaintiff had not a cause of action to the amount of £20, or up- wards, as alleged, (e) 4. Plea to a Declaration for falsely returning Nulla Bona to a /''. !'>.. that the Defendant did not levy. (/) That he did not, under or by virtue of the said writ of execution, as such (e) According to the statement in the dec- th< I of the plaintiff, either laration, sec 1 & 2 Viet. c. 110, s. 3, and there was a writ prior ante, declarations, " Sheriff," form 7. which exhausted all the g is; winter v. (/) See the declaration, form 1, ante, p. Freeman, 11 Ad. i 596. This plea denies that there was any sheriff was obliged to pay, out seizure under the plaintiff's writ; Drewe v. Beized, a year's rent to the landlord, u Lainson, 11 Ad. & E. 538; that is, any 8 Anne, c. i i. b. l, which left do seizure of goods liable to execution at the [b.j u suit of the plaintiff. Beenan v. Evans, 3 M. Q. B. 365 ; or that th & . B. 642. 14. Pleas to an Action by a Landlord against a Sheriff for n m *ving Groods taken in Execution, without satisfying a Tear*s Rei ante, 599, Form 12. 1. That Defendant had not Notice of any Rent being Plain- tiff being ivilling to go to a House of her oivn nomination, that De- fendant acted on request of Plaintiff. Silk v. Humphreys, 4 Ad. & E. 959. (1) See ante, Obs. 690, and see the cases nied nnder either of these pleas, and th referred to, ante, 691, form 1. Sec forms fore no evidence ia accessary to the of pleas: 1. That the judgment was pn a aheriff with the party who seised beyond warrant of attorney, and that the execu- the declaration or the latter to thai en tion debtor became a bankrupt, and a fiat Reed v. ThoyU issued against him before the sale; and aim- Bullock, l 11 A.d. & E. rms, ilar pleas showing, ■>. That plaintiff had Riselej v. Ryle, 11 M. & W. 16. I notice of the bankruptcy before the Bale, v. Cookson, MS. Patl J and defendant before the return, and that chambers, in addition to the the assignees had claimed the goods; and a denial that the defendant t<« House. That at the time of the alleged trespasses he was possessed of a dwelling- house adjoining the said close and wall of the plaintiff, and the respective occupiers of the said dwelling-house for twenty [or forty] years before this suit enjoyed as of right and without interruption the right and easemei having certain parts of the said dwelling-house buill into and supported by certain parts of the said close and wall of the plaintiff*, and of breaking and entering the said close and wall of the plaintiff 1 for the purpose of repairing and maintaining the said parts of the said dwelling-house, and of doing tl all things necessary in that behalf from time to time a- occasion should re- quire ; and the said trespasses were an exercise by the defendant of the Baid said right.] » SURGEONS. Obs. — In an action against a medical man for neglect, sei 607, the ■not guilty would put the plaintiff upon proof of die breach of d of the retainer, which, if disputed, musl be denied by a Bpecial "Agents," "Apothecaries," '* Physicians," and Gladwell ,S N. C. 793. 696 PLEAS IX TORT. TRESPASS TO PERSON. TENDER OF AMENDS. Obs. — In general a tender before action cannot be pleaded in an action ex delicto. But in many cases, by statute, such as the criminal law consolidation act, 24 & 25 Vict. c. 66, s. 113; lb. c. 97, s. 71; lb. c. 99, s. 3; 11 & 12 Vict. c. 44, b. 11. a tender of amends before action may be effectually made and pleaded. According to the decision in Jones v. Gooday, 9 M. & W. 744; 11 L. J. Ex. 297, tlif defendant need not pay the money tendered into court, or, if the statute gives him the privilege of pleading the general issue, plead tender of amends. See plea of tender of amends in an action for an irregu- lar distress, ante, 6.46, form 3, and note ( com- plained of] in his own defence. [2a. Another Form. And the defendant comes and says the plaintiff first assaulted him, and ho only defended himself.] 3. Plea that the Defendant assaulted the Plaintiff in endeavoring to prevent him from assaulting, £c. a Tliird Person, and to preserve the Peace, (r) That the plaintiff first assaulted E. F. (s) " the son," or •• wife," or - servant " of the defendant [as the case may be'], and was continuing to 'I" BO, whereupon the defendant gently (t) laid his hands on the plaintiff, in order "to preserve the peace [if the plaintiff teas assaulting the defendants son, SfC. instead of these last words say, "to defend the said E. F., the son <>f the defendant"], doing no more than was necessary for that purpose, which is the all< sault. (q) Common Law Procedure Act, 1852, sell. 15,45. If the plea be pleaded to part only of the declaration, it must he limited accord- ingly. 'Take care that the plea he not made to answer mere matter of aggravation, an instance, Griffiths v. Dunnett, 8 Scott N. R. 83G. Where there are several assaults there should be a separate plea of son a ih mesne to each count, if each assault be jus- tified in self-defence. Declaration, that de- fendant assaulted plaintiff and wrenched a stick from his hands, and with the said stick and with his fists gave the plaintiff blows. &c Plea, as to the assaulting the plaintiff with the stick and with his fists giving him blows, &c. sow assault demesne. Held, after verdict, thai the pica sufficiently justified the battery with the stick as well as the assault. Blunt v. Beaumont, 2 Cr., M. & R. H2. A wounding may be justified in se//^defence ; bul in defence of the possession of property the plea must be only moUitt r manu it, un- less there be resistance, &c. on the plaii part. [b. : Alderson v. Waistell, 1 C. & K. 358. If a man be attacked, he has a ri-ht to defend himself by Striking blows in return, but not to revenge by subsequently staking mi unnecessary blow. Reg. v. 1 (rise. .11. l C. & M. 214. (r) See another similar form, stating in- stead of the name here, "a certain DOT whose name is to the defendants unknown ; and replication that the boy was plain! sou, and that he \va- mo him. Wintciboiiine o. Brooks, - Car. 16. It is said to have been merelj to co lar a man to prevent his fijd with another is an assauli or battery. Griffin v. Parsons, is.! Y 1' 27 (n). Taki to plead this plea to the u it contain allegations which the defendant cannot justify by the plea. S plea thai plaintiff assaulted the • w ho then e him inl ard v. Baddeley, 28 L. J. E* 2i orbishley, 5 Kb & Bl. 188; 24 1. J Q. B. 313. (») See plea justifying an assault captain of a vessel I uger, fighting with another | N.i.i. ti v. Johnson, 16 Q. B B. 95 ; and see Scruton v. la lor, - I L10. (t) See Com. Dig. Pleader, 3, m. S \i. ,* B. 712 ; I' - 60S PLEAS m TORT. TRESPASS TO PERSON. 4. Meplic /Excess, to a Plea of Son Assault Demesne, (w) That the defendant committed the trespasses in the said declaration men- tioned to a greater degree and extent, and with more force than was necessary for the purpose in the plea mentioned. [5. Retaking a Runaway Apprentice. And the defendant comes and says the plaintiff was his apprentice, and deserted and run away from him, and he retook the plaintiff and forcibly brought him back, using no more force than was necessary.] 6. Justification by a Railway Company for arresting a Passenger, (x) Chilton v. London & Croydon Ry. Co. 16 M. & W. 212. 7. Plea of Justification to an Action for Assault and False Imprison- ment, that Defendant was an Attorney, and as such sued out a Writ of Alii ■< Capias, under which Plaintiff was arrested; and Replica- tion thereto, that the Writ was irregular. Codrington v. Lloyd, 8 Ad. & E. 449. 8. Plea justifying Imprisonment under a Warrant of a Stipendiary Magistrate. Bancroft v. Mitchell, L. R. 2 Q. B. 549. 9. Justification of an Assault in Defence of Possession of Person- alty. (?/) [That before and at the time of the alleged trespasses the plaintiff had wrong- fully in his possession goods of the defendant [or " of J. K."], that is to say [naming the goods], without the leave and against the will of the defendant] [or " of the said J. K."], and the plaintiff was then about wrongfully and un- lawfully to take and carry away the said goods and convert them to his own use ; and the defendant [as the servant of the said J. K. and by his command] then requested the plaintiff to refrain from carrying away and converting the said goods and to give up the possession thereof to the defendant, which the plaintiff then refused to do ; and thereupon the defendant [as the servant of the said J. K. and by his command] gently laid his hands upon the plaintiff in order to take [and took] the said goods from him, doing no more than was necessary for that purpose, which are the alleged trespasses. hike pleas. Morant v. Chamberlain, G H. & N. 540 ; Wisdom v. Hodson, 3 Tyrwh. 811; Chambers v. Miller, 13 C B. N. S. 125; Hudson v. Slade, 3 Fos. & Finl. 390.] (u) Where the plaintiff does not proceed of issue upon the plea in form 2, excess for a totally different trespass to that at- may be shown withoul a special replication, tempted to be justified, hut contends that Dean v. Taylor, 11 Ex.68. _ the defendant, though justified to some ex- (x) Plea justifying arrest for refusing to tent, was guilty ( . he should not new give up a ticket. Eastern Counties Ry. Co. assign, but i ove. See form and re- v. Broom, 6 Ex. 314. joinder. Bone o. Daw. 3 Ad. & E. 711 ; anc" rvations of Patteson J. lb. ; Penn v Ward, 2 Cr., ML & K. 338. Under a joinder and (y) Form, Blades v. Higgs, 10 C. B. N. S. 713. PLEAS IN TOUT. TBESPASS TO PERSON. 10. Replication to a Plea of Justification under a( ; against the Party, Plaintiff in a former Action, thai the Writ ■ irregular. Collett v. Poster, 2 II. & N. ■ 11. The like, that the Arrest was irregular, Sandon v. Jervis, El., Bl. ^v EL 985. 12. Justification of an Assault, frc. in resisting << /.' trained l> overcome his n committed the trespasses. Bailey B. observed, " Thi (z) See Field v. Adams, 12 Ad & E and Bee another plea justifying in defeno oi 6( S P.M. 700 PLEAT IX TORT. TRESPASS TO PERSON Obs. four imprisonments laid in the declaration; the party justifying is bound to cover the whole. I see uo reason which you give for assaulting him six times. You profess to justify lour imprisonments; you should have shown that cir- cnmstances existed by which you had a right to imprison him, whereupon you imprisoned him once; and then that such and such circumstances occurred whereby you had a right tu imprison him again, wherefore you imprisoned him on the Becond occasion, and so throughout; hut here you do not show any different occasions.' 9 On the other hand, it is sufficient to prove so much of a plea as substantially sustains the cause of justification, and covers the trespasses winch the plea professes to answer. In Atkinson v. Warne, 1 Cr., M. \ R. *27; 3 Dowl. 483; to a declaration for assault and imprison- ment, the plea justified the apprehension of the plaintiff on a charge of felony, alleging Ins resistance, wherefore defendant beat him, &e. The evi- dence supported the justification as to the arrest for felony; but the plaintiff's resistance was not proved. The court held that the verdict was right, the defendant having proved as much of his plea as was necessary to cover the declaration, and it not being necessary for him to prove what was unneces- sarily alleged. 1. Justification by Defendant that the Assault was committed in Defence of his own Souse or Land, (a) That he was possessed of land (b) [or " a dwelling-house "], whereon the plaintiff was trespassing and doing damage ; whereupon the defendant re- quested (c) the plaintiff to leave the said land [or " house "], which the plain- tiff refused to do, and thereupon the defendant gently (d) laid his hands on the plaintiff in order to remove him, doing no more than was necessary for that purpose, which is the alleged trespass [if a wounding is to be justified, add'] ; and thereupon the plaintiff, being still in the said house, resisted and assaulted (e) the defendant, who thereupon necessarily committed the said trespasses in his own defence, and in defence of the possession of his said house. («) [Like pleas, Weaver u. Bush, 8 T. R. Parker, 1 Bing. N. C. 72. A wounding, or 78 ; Gregory v. Hill, 8 T. R. 299 ; Wisdom the striking several blows, and several times v. Hodson, 3 Tyrwh. 811 ; Timothy v. Samp- knocking down (Gregory v. Hill, 8 T. R. son, 1 Cr., M. & E. 757; Webster v. Watts, 299 ; Johnson v. Northwood, 1 Moore, 420; 11 Q. B. 311.] 7 Taunt. 689), cannot be justified merely to (b) This is necessary; Roberts v. Taylor, expel a person, without showing resistance, 1 < '. B. 117 ; as to whether a rigid to the pos- &c. The expulsion may be justified, but not ■ a will suffice, see Newton v. Harland, an imprisonment, unless there he a breach of 1 M. >£ G. 044; Harvey v. Bridges, 14 M. & the peace, &c. Green v. Barn-am, 4 C. & P. W. 437. Possession is not proved by show- 308. See Wheeler v. Whiting, 9 C. & P. ing that the defendant was a lodger and pos- 202. See, also, Timothy v. Simpson, 1 Cr., 1 of some rooms onlv. Monks v. Dykes, M. & R. 757 ; Howell v. Jackson, 6 C. & P. 4 M. & W. 567. 733. (c) Where the first entry is peaceable, (e) This is necessary to justify a wound- there musl be a request to leave; Tulley v. ing ; Oakes v. Wood, 8 M. & W. 151; Bush ! I P. 6; Jelley v. Bradley, 1 Cr. v. Parker, 1 Bing. N. C. 72 ; or it may be jus- & M. 270; plea showing forcible entry, &c. tified by showing that plaintiff forcibly at- Weaver v. Bush, 8 T. It. 78; Polkinhorn v. tempted to enter the house, lb., from, &c. Wright, 8 Q. 15. 197. Polkinhorn v. Wright, 8 Q. B. 197. An im- (■. Brewster, 2 Q. B. 735; greater di i iolence on the defendant's but not for merely refusing to leave the house. part than would otherwise have- been justi- Wheeler /■. Whiting, 9 C. & P. 269. See liable, it is proper to state the facts accord- forms and law, Timothy v. Simpson, 1 Cr., ingly. Oakes v. Wood, 3 .M. & W. 151; M. & R. 757. Form showing that plaintiff Reeve v. Taylor, 4 IS'. & M. 470; Bush v. caused a riot. Ingle v. Bell, 1 M. &W. 516; PLEAS IN TOBT. TBESPAS8 1" PI 70] 2. Justification by Defendant as Servant of tht Occupier ■ /> „■/- house. | / ) That at the time of tin' said alleged trespasses one A. I'.. ■ dwelling-house, wherein the plaintiff was trespassing, making a disturbs against the will of the said A. B., whereupon the defendant, aa the x n u A. B., and by his command, requested the plaintiff to cease making the disturbance, and to deparl from and leave the said dwelling-house, which the defendant refused to do, whereupon the defendant, at the command of the A. B., and in defence of A. B.'s possession of the said dwelling-ho utly laid his hands upon the plaintiff to remove, and did remove him from the said dwelling-house, using no more force than was necessary for that pun which is the alleged trespass. 3. Replication to a Plea of Srlf-ih ■f,-n<;\ that the Assault was com.' mitted in removing Defendant from l'lntijf's L,/.(e, which is the alleged first assault by the plaintiff. OTHER FORMS JUSTIFYING IN DEFENCE OF PROPERTY, &c. 1. Expulsion from a Public House. Howell v.Jackson, 6 C.& P. 723 ; Webster v. Watts, 11 Q. B. 311 ; [Oakes t\ Wood, 2 M. & W. 791 ; Ingle v. Bell, 1 M. & W. 517.] 2. From a Select Vestry. Dobson v. Fessy, 7 Bing. 305 ; 5 M. & P. 11 2. 3. From a Church for Indecent Behavior during Service. Worth v. Terrington, 13 M. & W. 781; 2 D. & L. 352 ; and Hartley r. Cook, 9 Bing. 728; 3 M. & Sc. 230; Williams v. Glenister, 2 B & 4. Justifying Assault in turning Clerk out I Jackson v. Courteuay, 8 El. & Bl. Cohen v. Huskisson, 2 M. & W. 477. Effect 540.] It would not I replication ii of inability to prove the riot. lb. Other plaintiff show , andnotmci forms, &c. Oakes v. Wood, 2 M.&W.791; Bion of the hon Vivian v. Jenkin, S Ad. Ilow.-ll r. Jackson, 6 C. & P. 733 ; Grant v. & E. 741. Where the plaintiff * Moser, 2 Dowl. N. S. 923; 5 M. & ('•■ 123 ; s»w violence on defendant's part, i Wooding v. Oxlev, 9 C. & P. 1 ; Baynea i>. swer to the justification, he should m Brewster, 2 Q. B.*375. or reply sm (/) Pic-ott v. Kemp, 1 Cr. & M. 197. to evi I this pl< See Bardons v. Selby, 1 Cr. & M. 500; Bradley, 1 Cr. ft M. 970. 'Bnsh v. Parker, 1 Bing. N. C. 72; Holmes v. Common Law Procedure Act, M Bagge, l El. & Bl. 782; Hayling v. I »kej . - sch. B, 53. Ex. 531 ; Morant o. Chamberlain, 6 H. & N. 702 PLEAS IN TORT. TRESPASS TO PERSON. 5. From a Police Office. Collier v. Hicks, 2 B. & Ad. 663. 6. From a House, and Law as to the Right of a Landlord to expel a Tenant holding over. NewtoD v. Harland, 1 M. & G. 644; Harvey v. Brydges, 14 M. & W. 437 ; and see Wright v. Burroughs, [3 C. B. 685;] Davison v. Wilson, 11 Q. B. 890. 7. To prevent Forcible Entry into House. Weaver v. Bush, 8 T. R. 78 ; [Grant v. Moser. 5 M. & G. 123. Or into the defendant's close. Looker v. Holcomb, 4 Bing. 183 ; Polkinhorn v. Wright, 8 Q. B. 197.] 8. The like into a Close; and Replication of an Agreement entitling Defendant to cut Teazles. Kingsbury v. Collins, 4 Bing. 202. 9. Expulsion of Plaintiff, who was Defendant' 's Servant, from his House, which he refused to leave. Donaldson v. Williams, 1 C. & Mar. 345. 10. From a Raihvay, and justifying taking Plaintiff before a Magis- trate, under 3 £ 4 Vict. c. 97, for trespassing on the Railway. Manning v. South Eastern Ry. Co. 12 M. & W. 237. 11. Justification of an Assault in Defence of Defendant' 's Sheep, which Plaintiff with a strong hand attempted to take. Alderson v. Waistell, 1 C. & K. 358. 12. Similar Plea. Polkinhorn v. Wright, 15 L. J. Q. B. 70. FELONY, OR SUSPICION THEREOF. Obs. — There is a material distinction between arrest without warrant by private individuals, and arrests by peace officers on suspicion of an offence. In order to justify the former in causing the imprisonment of a person ivithput a warrant, be must not only make out a reasonable ground of suspicion, but must prove that a. felony has been actually committed by some one. West v. Baxendale, 9 C. B. 141 : Ex parte Kran, 1 B. & C. 258. Thus, a constable cannot legally take a person into custody on a charge of felony made by another, if the charge rests on no reasonable ground, or on grounds which are unreasonable. Therefore, where on the statement made to the constable it ought to have appeared (from the lapse of time and other circumstances) doubtful, whether a felony had been committed, and that there was no reason for suspecting the person charged, the arresl was held unjustified; Hogg '-. Ward, [3 H. & N. 417;] Allen v. Wright, 8 C. & P. 522 ; Matthew v. Biddulph, 3 M. & G. 390; 1 Dowl. X. S. 216; except in the case of hue and cry on an indictment found against the party; whereas a constable, having reasonable ground on a PLEAS IX TORT. TB J TO l'l RS( Obs. charge preferred by another person to rasped thai ted, is authorized to arresl the Buspected party wit] before a magistrate or other proper authority, although n i mitted. Beckwith v. Philby, 6 B. • I , muel v. I' White v. Taylor, I Esp. 80; Cald. 291. I of his own accord, takes a person Into custody on suspicion, 1 neral, like a private individual, prove thai :i crime • by some one; Hobba v. Branscombe, 8 Camp, i.' where by statute suspicious persons may be arrested. tinn what is reasonable ground for suspicion, is a mixed proi and fact. Whether the circumstances alleged to Bhow it n are true and existed is a matter of fact : but whether, - ippo i they amount to a reasonable ground for suspicion, is a qu Davis r. lfnssfll, ■> Ming. 854; Chit. Burn's Just, tit. Am The power of arresting without warrant is confined to the par: A. cannot therefore arrest B. because C. bas just cause to bu peel B Bac. Abr. Trespass, D. 8; and see 2 Hawk. P. C c. IS, 8. 11; but a prii person may arresl persons actually fighting, or who are c iming i i th ance of others fighting, but not after the affray is over, unless a party h received a dangerous wound in it. So a private person may at poinl of committing treason or felony. Lb. A plea of justification by a private individual must state fa j the ground oi suspicion (that the court may judge of its reasonable™ • |. I it is sufficient to prove such facts as constitute a reasonable and probable ca for the charge, although the defendant may have acted not merely on th facts which are proved, but also on others, the truth of which, although al- leged in this pica, arc either not proved or are disproved. II ill i V. M 30 L.J. Ex. 389. In Mure v. Kaye, 4 Taunt. 84, the plea justified an im- prisonment only by stating that a forgery had been committed, and that af- terwards the plaintiff was " suspiciously possessed " of the document, and did " in a suspicious manner" dispose of the sa to A. B., and then "in a suspicious manner " left England; wherefore defendant had reasonabl to suspect, and did suspect, plaintiff, &c. and this plea was held bad on gen- eral demurrer. There is an important distinction between J in reference to a constable's powers of arrest. In the case of treason and felony, a • ble may, by virtue of his office and without warrant, arrest a party upon :i reasonable charge or suspicion of these offences, although in fa ntually appear that none was committed, and the constable ha see, any part of the transaction. Hale 1\ C. 587; 1 Bast P. C. Just. tit. Constable, iv. ; Lewis v. Arnold, I ('. & P. 854. A and is bound at his peril to arrest for felony upon a reasonable suspicion arising from facts within his own knowledge or communicated to him by others; and upon a reasonable charge of felony he Is protected and j in arresting, although before he can take the suspected person before a mag- istrate he discovers that no offence has been in fact committed, and tl. discharges him without going before a justice. Ledwich v. Catch; . < aid. 291; Whiter. Taylor, 4 Esp. 80; Stonehouse v. Elliot, 6 T. U. 315; K- x o. Akenhead, Holt N. P. R. 473. But in the case of affrays (see Burn's Just. tit. Constable, iv.; A Coke i". Nethercote, 6 Car. & 1". 723; and the authorities collect. Lm- othy v. Simpson, 1 Cr.. M. & \l. 760) and breaches of the p pears that a constable has no power to arrest without warrant. • positive charge, if the affray did not take place in his presence, and • over when he arrived, and there was no chance of its renewal. constable's duty to preserve or prevenl a breach of the p it, and his arresting after the affray has ended cannot conduce to th object. So a constable at com n law is not justified in imj ■son in the belief that he has committed a misdemeanor. Griifin • I 28 L. J. Ex. 184. [f there be an affray, a person who witness; the spot where it was committed, and while then' is danger tl tinued or renewed, deliver the affrayers in charge to a quentlv the latter may, although he did not witness the ori 704 PLEAS IX TORT. TRESPASS TO PERSON. Obs. arrest the party bo given in charge in such case. Timothy v. Simpson, ubi si'/ v EL v. Light, 27 L. J. M. C. 1. And if an affray has happened, and a wound has been given which there is reasonable ground to suppose may end in felony, a constable may take the party who has given such wound into custody. Cowpey ». Henley, 2 Esp. 11. 540; Price v. Healey, 10 CI. & Fin. 28. But where a person assaulted a police constable, who went away, and after two hours' time returned with assistance, he was held not to be justified in arresting him after that interval. K. v. Walker, 23 L. J. M. C. 123. If A., having no right to apprehend 1>.. direct a police officer to take B., and he do so, II. may maintain trespass; but if A. merely make a statement to the officer, leaving it to him to act or not, as he thinks proper, trespass does not lie against A. Hopkins v. Crowe, 7 C. & P. 375. A plea, justifying an arrest for an affray without warrant, must contain a direct averment that there was an affray or breach of the peace continuing at the time of the arrest, or a well founded apprehension of its renewal. Price v. S eley, 10 CI. & Fin. 28. See form of plea defective in these respects, Baynes ■. Brewster, 2 Q. B. 37/}. Military and naval officers, &c. acting officially, 6 Geo. 4, c. 108, s. 97; con- stables, 7 Jac. 1, c. 5; special constables, 1 & 2 W. 4, c. 41; the metropoli- tan police, 10 Geo. 4, c. 44, s. 41, 2 & 3 Vict. c. 47, s. 5; the Thames police, 3 & I \V. 1. c. 19; the horse patrol, 6 & 7 W. 4, c. 50, s. 1; and police constables, &c. in corporate boroughs, 5 & 6 W. 4, c. 76, s. 19; and per- sons acting in their aid, may in actions against them for anything done in the execution of their office, plead the general issue and give the special matter in evidence. Ante, 405. It is, however, often judicious for these parties to plead specially, in order to compel the plaintiff to new assign, &c. if he rely on excess, &c. or to admit a warrant if there be one. These persons should take care not to join in a defective special plea with a co-defendant not priv- ileged to plead the general issue. See Hodges v. Chapman, 2 Bing. 523. A private individual giving a party in charge is not in general privileged by these enactments. See Nathan v. Cohen, 3 Camp. 257; M'Cloughan v. Clay- ton, Holt N. P. K. 478. It is unwise to plead a justification directly charging a party with felony, unless there is probable ground for proving it, as the placing an unfounded plea of this nature on the record is matter of aggravation of damages. Warwick v. Foulkes, 12 M. & W. 507. A plea stating only ground of suspicion stands on a different footing. Per Lord Abinger, lb. A plea, justifying on the ground that a felony has actually been committed, must be tried as though the plaintiff were undergoing a trial for it in the crim- inal court, and therefore the evidence of a witness who admits that he stole property at the same time should receive confirmation, as though he were an •omplice. Richards v. Turner, 1 Car. & Marsh. 414. The question of reasonable and probable cause on a plea of justification is one of law and not of fact, in an action for false imprisonment. Hailes v. Marks, 30 L. J. Ex. 389. The plea may be amended either by striking out so much as is not proved, or by correcting the plea in accordance with the evidence. lb. 1. Plea justifying an Arrest, ^c. on Suspicion of Felony. (7i) That before any of the alleged trespasses the defendant's goods were felo- niously stolen by some person unknown to the defendant, and the said goods were shortly afterwards found concealed in the plaintiff's house [state the grounds of suspicion as that, "who falsely said he had bought the same of A. 13."], whereupon the defendant, having reasonable and probable cause for Bospecting, and suspecting that the plaintiff had feloniously stolen the said goods, gave him into the custody of a constable duly authorized, and caused (h) Other forms, Hailes V.Marks, [7 H. Lister, L. R. 3 Ex. 197 ; Perkins v. Vaughan, & N. 56;] Currie v. Almond, 5 Bing. X. C. 4 M. & G. 988 ; Wright v. Court, 4 B. & C. 224; [Smith v. Shirley,:; C. B. 142; West 596.] v. Baxendale, 9 C. B. 141 ; Ferryman v. PLEAS IX TORT. TRESPASS l" P] him to be imprisoned [as in declaration], bo thai he might be c. on Grown ( rime. Hailes v. Marks, 7 H. & N. 56; Perryman v. Lister, L. I: ■ I West v. Baxendale, 9 C. B. 141 ; Smith v. Shirley, 8 C. B. I I. 5. Plea justifying Arrest, Handcuffing, and Detent in, Fein,,;/. Wright v. Court, 4 B. & C. 596 ; Broughton v. Jackson. 21 L J. Q. B. 7. The like, on Suspicion that Plaintiff had stolen a Horse. Hedges v. Chapman, 2 Bing. 523. 8. Other Forms. Hall v. Booth, 3 N. & M. 316 ; 3 Chit. PI. 7th ed. 327-337. 9. Plea showing Felony committed. Warwick v. Foulkes, 12 M. & W. 507; Atkinson v. Warne, 3 DowL 488; 6 C. & P. 687 ; Merry v. Green, 7 M. & W. 623. 10. That Plaintiff forged an Acceptance. Perkins v. Vaughan, 4 M. & G. 988. (I) 11. Plea justifying Imprisonment by a Military Officer abroad, the Plaintiff acting mutinously ; Replication, \' £ , and thi sucli judgment being in full force and unsatisfied, the said • \ I; sued and prosecuted out of the said court of [queen's b< m ad satisfaciendum directed to the defendant ( . I).. Bheriff of the counts , by which said writ the defendant C. D. was command* the plaintiff, if found in his bailiwick, and Bafely keep him and render his bodj before the justices of [queen's bench] at Westminster, immediately after the execution of the said writ, to satisfy the defendant A. B. the said £ , with interest upon the same at four per cent per annum from the i of the said judgment, and the said writ was duly indorsed, directing the ;~ai. delivered the said writ to E. F., his bailiff, to be executed, and the said I . I accordingly, and within the said bailiwick, took the plaintiff and detained him in custody, which are the alleged trespasses. 2. Replication to a Plea of Justification tinder th* Judgment Creditor had by Deed released the Plaint Judgment, $c. and gave Notice thereof to the J' int, and /, joinder thereto, (n) Barker v. St, Quintin, 12 M. & W. 111. 3. Replication to a Plea of Justification under a ' that tic Sum due under the Judgment had been paid. Futcher v. Hinder, 28 L. J. Ex. 28. 4. Under Writ of Detainer, and Replication no Affidavit / l> '. other Pleadings, §c. Young v. Beck, 1 Cr., M. & EL 148 ; 3 Dowl. 2 5. Plea Molliter Manus Imposuit, to serve Plaintiff with a Writ, Repli- cation, yc. Harrison v. II , 10 B. & C 4 15. (m) See ante, " Sheriff." See other forms. Wooler, 29 L. J. Q. B. 199 Codriuirton v. Lloyd, B Ad. & E 449; Kir- similar justification un bey v. Bendy, l M. & W. 331. See a form , under! of "justification where the person taken bad Bee Com represented herself to be the person again rnee, 10 ; whom the writ was directed; Dunston v. \'>.^ C. > Paterson,2 C. B. N. S.495; 26 L. J. C. P. (») And Bee Walker » 267; with a, new assignment and rejoinder 324. A rejoinder thereto; lb.; but where a wren- person of order I the same name is taken without anymisrep- held bad. Barker resentation, the sheriff is liable. < Ihilders v. 710 PLEAS IN TORT. TRESPASS TO PERSONALTY. 6. By an Attorney. Oakley v. Davis, 16 East, 82 ; and see Hunt v. Hooper, 12 M. & TV. 672. 7. Under an Attachment out of the Queen's Bench. Phillips v. Howgate, 5 B. & Aid. 220. 8. The like out of Chancery, and Replication, $c. Smith v. Egginton, 7 Ad. & E. 167. 9. Commitment for Contempt of Court of Bankruptcy. Van Sandau v. Turner, 6 Q. B. 773 ; Green v. Elgie, 5 Q. B. 99. 10. Justification under Process of a County Court, (o) Walley v. McConnell, [13 Q. B. 903 ; Banning v. Buchanan, 8 B. & C. 271 ; Hayes v. Keene, 12 C. B. 233.] 11. Replication that the Judgment under which the Defendant justifies was set aside by Rule of Court. (jo) Jones v. Williams, 8 M. & W. 349. [12. Plea justifying under a Capias in which the Plaintiff was mis- named, averring that the Plaintiff tvas commonly known by the name in the Capias, and was the Person intended. De Mesnil v. Dakin, L. R. 3 Q. B. 18.] JUSTIFICATION UNDER CRLMINAL PROCESS. Justification under a Judge's Warrant on an Indictment for Perjury. Gladwell v. Blake, 1 Cr., M. & R. 636. (g) E. PERSONALTY. 1. Not Guilty. Ante, 635. Obs. — In an action of trespass for taking goods in execution under a judgment which has been set aside for irregularity, evidence is not admissible under the (o) See Davis v. Fletcher, 22 L. J. Q. B. v. Jones, sup-a. A writ of execution issued 429. on a judgment more than a year old, without ()>) Tn this case both the attorney and a sci. m fa. is only voidable, and until avoided, plaintiff in the suit are trespassers. Codring- is a justification to parties who caused it to ton /•. Lloyd, 8 Ad. & E. 449. Brown v. be executed. Blanchenay v. Hurt, 4 Q. B. Jones, 15 M. & W. 191, where see other 707; [Huffer v. Allen. L. R.2 Ex. 15.] Rep- forms of similar replications. It is necessary lication that the plaintiff was in his dwell- in a replication, Bhowing that the capias un- ing-house, and that the outer door was closed der which the defendant justifies was set until defendant broke it open for the purpose aside, to show the grounds on which it was so of arresting bim. Newton v. Holford, 1 C. set aside ; Prentice v. Harrison, 4 Q. B. 857; B. 141. Or the writ or warrant may be de- because if the writ were erroneous, and set nied. See Jarmain v. Hooper, 6 M. & G. 30. aside on that -round, no action would lie. lb. (q) The plea there was held bad after ver- But an allegation that the writ was "irreg- diet for not Bhowing that the constable acted ularlv " issued is sufficient. Rankin v. I)e within his jurisdiction; and see Grant v. Medina, 1 C. B. 183 ; 2 D. & L. 813 ; Brown Moser, 5 M. & G. 123. PLEAS IN TOUT. TBI 5PASS TO PEB80 71 1 Obs. plea of not guilty, to Bhow that Bince action brought the \ cutiou have been paid over to the plaintiff. Rundli ■ L 13 L. .). Q. B. SI i. 2. Plea of Payment into ( '■. Cherril, 8 Bing. 316; bul the fad thi third person had a better title to the goods than the plaintiff, i- no defence in answer to the plaintiffs prima facu case of possession, unless such third | son is shown to have authorized the defendant in his act of trespass, ter i?. Johnson, 2 Mood. & Rob. 263; 2 Saund. 47 c, d. Si I B row, 9 Ex. 514; 23 L. J. Ex. 134. A- to setting up the Sheri- dan v. New Quay Company, I ('. B, X. S. 618; I I 341; Thorne v. Tilbury, 3 H. & N. 534; Biddle o. i: I. .: i I.. .1. Q : 6 B. & S. 225. A plea by a sheriff was held had as an argumentative denial of the plaintiff's property, which justified Beizing tie- g Is under against a third person. Harrison v. Dixon, 12 M. & W. l 12; 1 1>. -n. L. i 4. Justification for seizing Cattle, G-ood*. .y<-. — D Ante, 64G, 647; [Goodwyn v. Cheveley, 1 H. & S. 681 ] 5. Plea of Plaintiff s Bankrupt <■;), in Trespass f Brewer v. Day, 11 M. & W. Obs. — Where the personal injury to a bankrupt is the primary as trespass for entering his house, Beizing his nd annoying hi- I (before his bankruptcy), the assignees cannot buc for it. but the bankrupt may. Rogers v. Spence, 13 M. & W. 571; L2 CI. & Fin. 720. B of action which is exclusively confined to injury to property w assignees, but there i- a difficulty when there is a mixed case of injur-. person and injury to property, it may be that in Buch a case the law wi an action to the bankrupt for the personal injury, an 1 an action to the siv;nees for the injury done to the property, rex Lord Campl Spence, ubi sup. ' A righl of entry vested in husband and the wife, passes to the assignees of the husband if he 1 me Bing. 689. See Ruchbeil v. Alexander. 30 L.J. C. P. 268 - vations in trover by and against assignees ■■• a bankrupt, which most part applicable in trespae ■■ Forms bj assignees, post, 727, form 2. 712 PLEAS IX TOUT. TBESPASS TO PERSONALTY. 6. Pica justifying driving Plaintiff's Sheep into a Highway because they were in D mi's Close; Replication, Defect "/Fences be- tween tl- I from which tiny escaped and the Plaintiff's, which Defendant was bound (" repair. Carruthers v. Hollis, 8 Ad. & E. 113 ; Goodwvn v. Cheveley, 4 II. & N. 631. 7. Plea justifying the Removal of Goods encumbering Defendant's Premises, (r) That at the time of the said trespass he was lawfnWy possessed (s) of a cer- tain close, (t) and the said goods and chattels were then wrongfully in the said close, encumbering the same, and doing damage there to the defendant, where- upon the defendant took the same and removed and carried them to a small and convenient distance, (u) and there left the same for the plaintiff's use, (v) doing no more damage than was necessary, which is the alleged trespass. [8. Plea that the Plaintiff had mixed up his Goods with those of the Defendant so that they could not be separated, and the Defendant unavoidably committed the alleged Trespasses in (■iking possession of his own Goods. Wyatt v. White, 5 H. & N. 371.] PLEAS OF JUSTIFICATION IN ACTIONS AGAINST SHERIFFS, (x) JUSTIFICATION UNDER CIVIL PROCESS. 1. Plea by a Sheriff, his Bailiffs, and an Execution Creditor, sued together for breaking, fyc. a House and seizing Goods, a Justification under a Pi. Pa. (?/) The following fun ii setting out the payment, the writ, and the warrant thereon, is applicable when the sheriff, the officers, and the execution creditor, all join in the plea. If only the sheriff and officers join, (z) say "That before [$£•], a certain writ of our lady the queen, called a fieri (r) See forms, Neville v. Cooper, 2 Cr. & ( («) This plea is disproved if it. be shown M. 329; Pratt v. Pratt, 2 Ex. 413 ; [Melling that defendant locked up the goods in the . Leak, 16 C. P. 652 ;] Drewell v. Fowler, 3 place where they were seized, and took away Ail 735; Ackland v. Lntley, 9 Ad. & the key. James v. Lewis, 7 C. & P. 343. E. 87'J, and in the cases cited infra, in the (.r) If the sheriffs defence be that the hai- notes. - form in trespass for stopping, liff's act be not binding on him (as to which &c. wagon and horses, and replication that see 1 Chit. PI. Iml. "Sheriff") either by plaintiff went upon the close to remove corn, reason of its having Keen done after a sup t- as outgoing tenant, under a custom of the sedeas has issned, Brown v. Copley, 7 M. & country. Holding v. Piggott, 7 Bing. 465. G. 558, or because he has exceeded his au- (s) Or the defendant may show tiilt in fee thority, the plea of not guilty will suffice for in himself, or in another person, al a him; so it will suffice when he is sued for an demise from him, a- in Vivian v. Jenkin, 3 act done judicially, as issuing process out of a Ad. & E. 741. county court of which he is judge. II).; and (/) It is not necessary to narm the close. Tunno v. Morris, 2 Cr., ML & R. 298; and Bond v. l)owntou. 2 Ad. & E. 26. sec Dicas o. Lord Brougham, 6 C. & P. 249. (u) If A. wrongfully places goods in B.'s (y) See, in general, as to the mode of fram building, B. may lawfully go upon A. 's close ing these pleas, 1 Saund. 296,298; 1 Chit. adjoining the building for the purpose of re- Plead. 7th ed. 760; Com. Dig. Pleader, 3 M. moving and depositing the goods there for 24. A.'s use. Rea v. She-ward, 2 M. & \V. 424. (z) If there be any doubt as to the writ PLEAS IX TORT. TRESPASS l'> PERSO 71:; facias, was issued out of the cniai of [queen's bench] al W< to the sheriff of tlie county of , by which Baid writ ' from the as/en's/:]. The officer, if pleading alone, need only begin with the warrant, thoa '•Thai before [#c], one R. S., then being the Bheriffof the c ivy], to wit, on [c$v.], made his certain warrant in writ from the f]. If tli.' attorney be joined in 1 1 • - - action, Bay, after the Btatement o£ thi at tin- place in the text marked ** "That before and at [#. .M. i' 1 ; Britton v. Cole, 1 Salk. 409. 2. Plea of Justification under a /•'/. Fa. | <*) That before the alleged trespasses, and before thi- suit. (A) th,. defendant A. B. [the execution creditor'] recovered, by a judgmenl against the plaintiff in the court of [queen's bench] at Westminster, the sum of £ ** ami thereupon, the said judgment being in fidl force and unsatisfied, the -aid A. l'». sued and prosecuted out of the said court of [queen's bench] a writ facias, directed to the sheriff (c) of the county of , by which Baid writ he was commanded* that of the goods and chattel- of the said plaintiff (rf) in his bailiwick [S?c. set out the tor it of execution, (e) ///.• indor ' the delivery to the sheriff (f) to be executed as ante, 596, rl such All these pleas were pleaded tn I arnahy v. 6M. S G Welby, 8 Ad. & E. 872. If the sheriff has ll seized the goods of A. I'.. undi r a ft. fa. specially, l Saun against him, and ('. D. bring an action for (/) The allegation Bnch seizure, claiming the property in the wril to the Bheriff is n goods under a bill of Bale, or conveyance l Saund, S from A. Ii., which there is reason to 1" lieve 714 PLEAS IX TOUT. TEESPASS TO PERSONALTY. thereupon the defendant R. S. [the sheriff'], as aud being such slierifFas afore- said, afterwards and before the return of the said writ of [S-r.]. and whilst the Bame was in force, duly made his warrant, (g) t directed to the defendants K. and G. [the bailiffs], bailiffs of the said sheriff, and thereby commanded them that [set out the warrant], wdiich said warrant, afterwards and before the return of the said writ, was delivered to the defendants K. and G. [the bailiffs], to be executed; (A) and thereupon the said K. and G. (/) did then, by virtue of the said writ and warrant, and within the said bailiwick of the said sheriff, enter (k) peaceably and quietly into the said messuage or dwelling- house, in which [3,-c] [the outer door thereof being then open], (I) in order to seize and take, and did then seize and take in execution the said goods and chattels of the plaintiff, the same then being in the said messuage or dwelling- house for the purpose of levying the moneys so directed to be levied as afore- said, which are the alleged trespasses. 3. Plea to Declaration for entering House and taking Goods, that the Goods therein were the Property of Plaintiff and M. G., that Defendant recovered a Judgment against M. G., justifying the Sale of a Moiety under a Pi. Pa. against him. (wt) That before and at the said time wdien [fyc], the plaintiff and one M. G. were jointly possessed of the said goods and chattels in the declaration men- tioned as of their own proper goods and chattels, and that heretofore and before the said time when [§c; here state the recovery of the judgment against M. G., the m (i) If one only be a bailiff, say, "the said R. as such bailiff as aforesaid, and the said G. as his servant in that behalf, and at his command, &c." (k) If the plaintiff's interest in the house be leasehold, the term remains in him, not- withstanding the lease may be seized, and therefore the sheriff cannot justify staying in an unreasonable time after such seizure. Playfair v. Musg'rove, 14- M. & W. 289. But such continuance in possession must be newly assigned. lb. (/j This is a necessary allegation. 11 Moore, 40. Law of breaking open doors, &c. Cooke v. Birt, 5 Taunt. 769; Whalley v. Williamson, 7 C. & V. 294 ; 1 Chit. Arch. 12th ed. 622-624 ; 1 Bing. N. C. 721. See form of plea by a sheriff justifying breaking open an outer door, because he could not otherwise remove from the house -jjoods which he had seized. Pngh v. Griffiths, 7 Ad. & E. 840. As fco what amounts to break- Lag an outer door, see Whalley v. William- sun, supra. (m) See Johnson v. Evans. 7 M. & G. 240; 1 ]).,<: L. 935. In an execution against one of two joint tenant-, sheriffs should seize the whole of the property which is the subject of the joint tenancy, but sell only defendant's moiety undivided." Johnson v. Evans, 1 D. & L. 935 ; and see, also, Garbett v. Vale, 5 Q. B. 408 ; Burnell v. Hunt, Arch, by Chit. 1 2th ed. 660. (g) It is only necessary to state the war- rant when the officers justify ; the execution creditor or the sheriff may state at once that the latter seized and entered. &c. under and by virtue of the said writ, &c. without men- tioning the warrant. See Com. Dig. Plead- er, 3 M. 24. Seal of office not necessary to be stated. 2 Saund. 305, note (13) ; Bull. N. P. 83 ; Padfield r. Cabell, Willes, 411. (/() If the entry into plaintiff's house was under a fi.fa. against a third person, insert here, " And the said defendants further say, that before and at the same time when, &c. divers goods and chattels of the said [third m], liable to be taken in execution in that behalf under the said writ and warrant, weir in the said dwelling-house in which, &c." This averment is essential. Cooke v. Birt, 5 Taunt. 76 ; White v. Wiltshire, Palm. 52 ; Johnson v. Leigh, 6 Taunt. 246. Of course in the former part of the plea the judgment and execution niu.-t lie stated to have been against the third person, and in the latter the seizure will be stated to be of the- goods of such third person. See 1 Chit. Arch. L2th ed. 623 ; and see form of plea in Carnaby v. Welby, 8 Ad. & E. 872. If the action be brought by the third person, who claims also the goods, plead justifying as above the entering the house, ami ;is to the Is, deny the plaintiff's property in them. Similar justification under a ca. sa., defend- ant having reasonable ground to believe that the debtor was in the house. Whallev v. Williamson, 7 C. & P. 294. PLEAS IN TORT. TBESPASS I" PEB80NA1 71", issuing of the xorit offi.fa.. reciting it, stating the indorsement on the delivery thereof to the sheriff as ante"]', by virtue of which laid wril the defendant, as sheriff as aforesaid, afterwards entered into the said .1 ■ house in which [<$•£•] hy the outer door, the said on »r then in order to levy the damages aforesaid of one undivided moi< goods and chattels in the declaration mentioned, the sam< then being in the said dwelling-house, and did necessarily carry away the said goods and chattels (m) for the purpose aforesaid, a lawful for the defendant to do, and sold the said moietj belong M. G. of the said g Is and chattels in satisfaction of the -aid dan. rhich are the supposed trespasses in the declaration mentioned. 4. Similar Justification under a Fi. Fa. is.su> •/ /> A>r,ird. Jones v. Williams, 8 M. & W. 857. 5. Justification under Process of I '///'. />'■■/■ < '■■arte. Green v. Davis, 3 B. & Aid. 601 ; Dyson v. Wood, 3 B. 6b C. 1 19, Manor Court ; Lowell v. Champion, 6 Ad. & E. 407. [6. Flea that the Trespass was committed und, r Civil I' hich was subsequently set aside upon the Term* that the, Plaintiff eh bring no Action. Perkins v. Plympton. 7 Bing. 676. 7. Replication to a Plea of Justification und< r a Wit ri I Obs. — The plaintiff may join issue upon the plea or specifically deny the ju writ, or warrant, according to the fads; or admitting th< q, re] residue. Form, &c Carnaby v. Welby, 8 Ad. & E. 874. W been excess, &c. it should be replied or new i. The plaintiff mi reply (as against all but a sheriff or his bailiff), thai the wril of «■■ was' set aside by rule of court. Form, &c. Jones v. Willia \\ 356. Excuse for breaking open an outer door. Pugh v. Griffith, 1 Ad. & 840. Where the fieri facias is against the goods ol a third person and defendants entered plaintiff's house, a replication "thai the g 1- m each of them was the goods of the plaintiff," denying thai the ju< debtor had any -nods in plaintiff's house, would be a good ans verto 1 but would admit the judgment and execution. See Jones v. I I N. C. 489, per Tindal C. J. Form of replication thai a wi allowed before the fieri facias. Belshaw v. Marshall, 1 B. 8k A L j and see Perkins v. Pympton, 7 Bing. G7G. 8. Flea by a Sheriff to Trespass by Aseigm seizing the Bankrupt's Good*, that th D hn&ani Fi. Fa. before Fiat, and without TS a Pri r Ad B ruptcy. Cheston v. Gibbs, 12 M. & W. Ill; 1 D. & L. 120. (n) This form was held bad, for not show- a war! N l ing that the execution was by rule of court, & W. S65 : 2 < hit. Ai i. calling upon the defendant "to perform the 716 PLEAS IN TORT. TRESPASS TO REALTY. Obs. — Similar forms in Edmunds v. Lawley, G M. & W. 286; Moore v. Phillips, 7 M. & W. 586; Whitmore b. Robertson 8 M. & W. 463; Unwin v. Be. Quintin, 11 M. & W. 277; 2 DowL N. S. 796; and Belcher v. Magnay, 12 M. & W. 102; 1 D. & L. 420; Aldred u. Constable, 6 Q. B. 370. These forms were in trover, but may easily be adapted to trespass. It would seem thai this defence might be taken under the plea of " no property" (ante, 685), in those eases where the sheriff has actually sold the goods before adjudication, as in such s changed, but if the trespass be merely the seizin;/, then. though the sheriff is justified in seizing, yet inasmuch as the property remains in the bankrupt, and is in the assignees by relation, the sheriff should plead specially. See the Obs., per Parke B. in Samuel v. Duke. 3 M. & W. 622, which seem applicable in trespass though not in trover, post, 723; and see Ed- wards v. Hooper, 3 M. & W. 363. 9. Replication as against a Party sued with the Sheriff, that the Judgment was on a Warrant of Attorney given by way of Fraud- ulent Preference. Aldred v. Constable, 4 Q. B. 676. 10. Replication that the Judgment was on a Warrant of Attorney that the Fiat issued within Two Months of the Execution and Sale, and that the Sheriff sold with Notice of the Act of Bankruptcy and Fiat. Cheston v. Gibbs, 12 M. & W. Ill ; and similar form in Whitmore v. Rob- ertson, 8 M. & W. 466. 11. Similar Replication that the Judgment was on a Cognovit given by way of Fraudulent Preference. Scott v. Lewis, 7 C. & P. 347 ; and similar form that it was on a warrant of attorney given by way of fraudulent preference, Rawdon v. Wentworth, 2 Dowl. N. S. 287 ; 10 M. & "W. 36. 12. Plea by a Bailiff that he acted under an Attachment out of the County Court to compel the Plaintiff to appear there by seizing his G-oods ; Replication, a Supersedeas issued. Brown v. Copley, 7 M. & G. 558. III. REALTY. Ante, 615. Obs. — Not guilty in trespass to realty. See ante, 635. By R. G. T. T. 1853, r. 19, " In actions for trespass to land, the plea of not guilty shall operate as a de- nial that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession, or right of possession, of that place, which if intended to be denied, must be traversed specially." The plea of not guilty, in this action, therefore, admits the plaintiff's title and possession, and simply denies the alleged fact, thai the defendant, by himself or his servant or cattle, as the charge may be, committed the trespasses laid in the declaration, and no excuse or justification can be set up under it. PLEAS DENYING PLAINTIFF'S TITLE. Obs. — The plea denying the plaintiff's possession means that the plaintiff had not at the time of the trespass such a possession of the close, &c as will enable, him to maintain thai action. Heath v. Millward, 2 Bing. N. C 98; Wheeler v. Montefiore, 2 Q. B. 133. It is negatived by the plaintiff proving an actual possession in himself; see 1 Chit. PI. 7th ed. 196; however slight, such as by overseers who inclose a waste; Matson v. Cook, 4 Bing. N. C. 392; by a ten- PLEAS IX TOBT. TRESPASS I" Rl '.IV. 717 Obs. ant (even againsl his landlord) who land un lease; Alexander v. Bonnin, l Bing. NT. I session of her bedroom; Lewis -. Ponsford, B C. & P. wrong-doer the mere pi m will Buffice, th avail against one having a better title; 1 Chit. P I. I9i Young, :: M. & W. 288; Beath v, Millward, 2 I sory right Bufficienl to sustain tr< may be i app) ared that the plaintiff has in tad no legal titl I J. Ex. 344. But the mere right to po ■ ion is not Bufficienl withoul enl Ready, 5 Ex. 989; Turner v. C imi rou I Co. 5 1 plaintifE prove no more than that, he will be defeated on this lessee, before entry cannot supporl trespass; Bee 3 - 1 Chit. PI. 197; bul the entry of an heir relates back to the of entry. Barnett v. Guildford, 11 Ex.19. See And !: L.J. Q. B. L28. But possession in man\ cases implied! erty; Hebbert v. Tin. mas, 1 Cr., M. & \i. 861; Rex v. Mayo T. R. 26; and (he party entitled is constructively in possession and tain trespass. lb. This applies, it would Beem, particularly in where from the nature of the property constant manual occupation • well be had. Thus the lord of a manor claiming the wastes, or i' the soil of a public highway, may maintain tresp ainst pe jurinj the soil, &c. of the waste or highway, on proof of title, withoul si ual possession, it not being proved by defendant to ha another person. Lade v. Shepherd, l W'ils. 110; Mayor of N irthau Ward. 1 W'ils. 107; 2 Stark. Lv. ubi supra. And a party having the strict legal title and p y right may. acquire a suflicient constructive possession to enable him to sustain ti against a wrong-doer in actual possession. Thu> in Butcher v. B itch r, i B. & C. 399, where the plaintiff having the legal title entered on the land going thereon and beginning to plough, &e.) with intent to t although he did not declare that such was his intention, it was held he maintain trespass against a person wrongfully in p in at the tim entry, and who without quitting possession desired the owner I ml in fact continued his wrongful possession afterwards; Harland, 1 M. & G. 644. In these cases entry, &c. upon part and par. the estate in the name of the whole, gives sufficient constructive pos the whole for this purpose. Bulwer v. Bulwer, 2 B. & Aid. 17". It is therefore evident that in trespass a question ol raised and decided, although ejectment is more commonly resorted to, and is generally more appropriate for the purpose. [As to how far a judgment in this action of trespass to realty creates an estoppel on the matter "t' titl 1 Chitty PI. 195, note (?<); Providence v. AdamB, L0 K. I. I Prior actual possession (see Devetl v. Brown, 5 Bing. ~; Ball i>. Davis, I P. 33; Dyson v. Collick, 5 B. & Aid. 601 ) is ol itself sufficient to enabl possessor to maintain trespass against a wrong-doer, that is a party wh ters and cannot prove a superior or better title or possessory right in hi: or in another person who can be proved to have authorized hi- entry. other words, a new trespasser cannot, by the wry ately and without acquiescence gain a sufficient possession t" enable him t-» maintain trespass, and drive the person whom he ejects to prove his title. Browne v. Dawson, 12 Ad. &. E. 629. Bul actual void lease, or of crown land, suffices. Graham i. Peat, 1 E bers v. Donaldson, ll East, 68; Barper v. Charlesworth, I B.& ( teris v. Cowper, 4 Taunt. 547. In trespass quare clausum /regit, under this plea the defendant may Bho* himself or some other person under whose authority he claims to bai Jones v. Chapman, 2 Kx. 80S; Slocombe v. I.yall. 6 Ex. l L9 sion is title against a wrong-doer; Parnell v. xoung, ■ M 8c "W J8; B sonr. Dixon, 12 J\I. & W. 142; 1 D. vM L. 454; L3 L. J. Ex. 247; bul be safer to plead liberum tenementum, together with the plea that th not the plaintiff 's. These two plea-, with not guilty, and the ; 718 PLEAS IX TOUT. TRESPASS TO REALTY. Obs. post, 719, will all be allowed together. Morse v. Apperley, 6 M. & W. 145; 8 Dowl. 203; Sloeorube v. Lvall, ubi sup. Under not possessed the defendant may show that the part on which the alleged trespass was committed is bis, and it is not necessary that he should prove a title to the whole. Bassett v. Mitchell, 2 B. & Ad. 99. Plea denying Plaintiff's Possession, That the said close [or " messuage "] was not the plaintiff's, as alleged. 1. Liberum Tenementum. Obs. — Sec Harvey v. Brydges, 14 M. & W. 437. The plea of liberum tenementum is supported by proof of any estate of freehold, whether in fee, in tail, or for life only, and whether in possession or expectant on the determination of a term of years; but it does not apply to the case of a freehold estate in re- mainder or reversion, expectant on a particular estate of freehold, nor to copy- hold tenure (1 Saund. 347 d, note (6) ; 1 Chit. PI. 7th ed.), nor is the plea sus- tained by evidence of a tenancy in common. Voyce v. Voyce, Gow R. 201. Its effect is to admit that plaintiff is in possession, and that defendant is prima facie a wrong-doer, but he can prove title to himself by deed or twenty years' possession; Grice v. Lever, 9 Dowl. 246; Lempriere v. Humfrey, 3 Ad. & E. 186; Morse v. Apperley, 6 M. & W. 1*9; 9 L. J. Ex. 61; Brest v. Lever, 7 M. & W. 593; 10 L. J. Ex. 337; in some part of the demised close, and that it is on this part all the acts complained of have been done; tbe defend- ant, therefore, is not bound on this plea to prove a title to the whole close. Smith v. Royston, 8 M. & W. 381; 10 L. J. Ex. 437; Morse v. Apperley, ubi sup. [See Providence v. Adams, 10 R. I. 184.] Where in trespass to land, the removal of plaintiff's goods is also charged, and the defendant claims title to the land, he should plead it and justify the re- moval; and it seems to be insufficient as to the goods, to plead only that the close was not the plaintiif's; and care should be taken to except from the plea any trespasses charged in the declaration which relate only to personal property (not stated to belong to the close), or to the person, to which, of course, this plea can be no answer. Roberts v. Taylor, 1 C. B. 117; 3 D. & L. 4. And then in another plea as to the goods, deny that they were the goods of the plaintiff, if they were not so; or. if they were, plead as to the goods that defendant was possessed of a close, and because the goods were there doing damage, &c. defendant removed them; or the defendant might plead title justifying the removal, ante, 712, form 7. In trespass for entering a house and taking goods, if defendant claim both, he may plead that the house and goods were not, nor was either of them the house and goods of plaintiff. See form, Haigh v. Belcher. 7 C. & P. 389. The issue on this plea is to be taken distributively, and defendant may succeed as to one close and plaintiff as to another. Pbythian v. White, 1 M". & W. 216. Where the free- hold title was in the defendant, the plaintiff cannot safely deny lib. ten., but should plead specially, showing his possessory interest by demise, &c. Since 3 & 4 W. 4, c. 27, the right of property is dependent for its very exist- ence upon the right of entry, and therefore if the defendant's case be thai he has been in possession of the close for twenty years, this would seem the proper plea. 1. Plea of Liberum Tenementum. That at the time of the alleged trespasses the said close [or " messuage "] was the freehold of the defendant. [la. Answer of the Same as to Part, and General Denial of Trespass on any other Part. And the defendant comes and says that a part of the close mentioned in the plaintiff's writ was the soil and freehold of the defendant, the same being de- PLEAS IN TORT. TRESPASS 1" REALTY. 719 scribed as follows [4-c]. Upon his own knowledge he denies thai he broke or entered any part of said close, excepl the pari ah ribed. 2. Another Form; justifying as the St want of th Fr ■ \ I That at the time of the said all< ged tres| dd close w&s the »"■• hold of A. 1>. [and that the said gates [as in the declaration ] were afl the said freehold], and the defendant, as the Bervanl and bj the command of the said A. 15. broke and entered the said close and committed the said all trespasses, (p) 3. Replication to a Plea of IAberum Tenementim, stating a l> mi Defendant to Plain tit)'. < q ) Wilkins v. Boutcher, 3 M. & •) Kavanagh v. Gudge, 5 M. & G. 727; [Vivian v. Jenkin, 3 Ad. & E. 741; (o) See similar pleas justifying as the ser vant of a copyholder, stating the copyhold grant. Brown v. Story, 1 M. & G. 11"; Dar- lington v. Pritchard, 4 M. & G. 783. ( />) If the freeholder and his servant plead together, say, "the defendant A. B. in his own right, and the defendant ('. D. as the servant, &c." The plaintiff may reply, denying that defendant was the servant, or had the authority of the freeholder; Cham- bers i;. Donaldson, 11 East, 65; hut under such a replication he cannot show a lease from the freeholder; Ewer o. Jones, 16 I>. -f. Q. B. 42; and tins replication will not he supported by proof that the freeholder is an infant, and the defendant the receiver of his rents appointed by the court of chancery, [b. (>/) See a form, Ryan v. Clark, 14 Q. B. 65, pleaded by way of estoppel. Darlington v. Pritchard, 4 M. & G. 783. If the defend- ant in his rejoinder deny the demise, he can- not give in evidence that the plaintiff at the time it was made had agreed to give up pos- session to the defendant when he wished. Tomkins v. Lawrence, 8 C. & P. 729. Where a lord pleads lib. ten. to an action by a copy- holder, the latter should not traverse it, hut should reply the copyhold grant. Thomp- son v. Harding, 1 C. B. 940; Kevse v. Pow- ell, 2 El. & Bl. 132. See form of such a replication, Brown v. Story, 1 M. & G. 117. (/■) See, as to this plea, Com. Dig. Pleader, 3 M. 40; Vivian v. Jenkin, 3 Ad. & E. 742; special form, Phythian i\ While, 1 M. & \V. 216 ; and see another form of sub-demise and replication of entry (under a power), if rent unpaid, &c ; Kavanagh v. Gudge, suj and see a form stating a demise from the freeholder for sixty years, and assignment of the residue of the term to A., justifying as A.'s servant, and replication of sub-demise from A. Wilkins i?. Boutcher. 3 M. & G. 807, and Phythian v. White, 1 M. & W. 217. In trespass to land, if the defence he that the plaintiff, who has the freehi ses ion by a demi defendant to rebut the presumption thai : □ fol- lows the freehold, by clearly proi ins misc. If the locus in quo (a yard] be -ur- rounded bv sei sral b J by t lie plaintiff, the mere fad thai the t< nai I the houses use the place in whicl some purposes referable to an i sement, is no c\ i :mise of the land or with the houses ; and there b< ing no •■•■ i ber the yard formed par) of ; or not, the i m held thai the : idge ought not to have left it to the jury to sa\ whi the landlord, at the lime of the ol the houses, had reserved the yard ; the question being whether he bad demised it, nol wh he had 1 1 si ■ d it. Hebberl v. Thomas, l Cr., M. & K. 861. As to the issue taken distributive!/, and plaintiff ing as to one close, and defendant other, where there a; Phythian v. White, ubi supra. S ailar form thai the fn eholder demised to an inter- mediate party for twenty-one years, who demised to the defendant. Replication that such intermediate party demis fox three years before the said demise to thi fendant, and thai P. assigned to the plaintiff. Rejoinder, that the lasi demise was of keeping in repair ami ■ repair. &c Wrighl v. Burroughs, "• C B 685 ; 16 L. J. < IV 6. Ther< 1 that sii ;. c. [01 li\ ery of » lisin is no longer n< therefore thai this mode of L r ivl now incorrect, jection, hut it was nol tak. murrer, Bee a form denying demu agenl of plaintiff's, Wilkin- i B M, & G 807 The plaintiff must denying the seisin in Vivian v. Jenkin, 3 Ad. &E reply a prior demise to him from or thr 7 20 PLEAS IX TOUT. TRESPASS TO BEALTV. Dyne v. Nutley, 14 C. B. 122; Mayhew v. Suttle, 4 El. & Bl. 348 ; Holmes v. Newland, 11 Ad. & E. 44.] 5. Plea in Justification of a Trespass on Plaintiff's Close, that Plaintiff placed Defendant' 's Goods there, and Defendant entered to / them, (s) Patrick v. Colerick, 3 M. & W. 483 ; [Wood v. Manley, 11 Ad. & E. 3 1 ; Anthony v. Haneys, 8 Bing. 196.] 6. Plea that Defendant entered Plaintiffs House to reclaim his Wife, who was wrongfully harbored there, (f) Lewis v. Ponsford, 8 C. & P. 687. 7. That Defendant entered Plaintiffs House in perambulating the Boundaries of a Pai'ish under a Custom to that effect. Taylor v. Devey, 7 Ad. & E. 408. 8. That Plaintiff had sold Croods to Defendant, and had thereby given him a License to come and take them from and out of his House. Wood v. Manley, 11 Ad. & E. 34. [See Toms v. Wilson, 4 B. & S. 442.] 9. Plea justifying entering a House because it was let on the Terms that if the Tenant did not repair, $c. the Landlord might reenter without Legal Process ; and averring Non-repair, §c. That before the plaintiff was possessed of or had any title, estate, or interest in the said house, the defendant (u) was seised in his demesne as of fee (x) of and in the said house, and being so seised, demised to the plaintiff the said house as tenant thereof to the defendant, for [one] year then next following, and so on from year to year for so long as they should respectively please, the first year to commence from the day of then last past, and under the yearly rent of £ , payable quarterly on the 24th day of June, the 29th day of September, the 25th day of December, and the 25th day of March in each and every year, by even and equal portions, on the terms that the plaintiff should [as in the instrument of demise'] repair and keep in tenant- able repair the said dwelling-house during the continuance of the said demise and tenancy, and that if the said plaintiff should not repair or keep in ten- antable repair the said house during the continuance of the said demise and tenancy [or -'if the said rent, or any part thereof, should be unpaid fourteen days next after any day on which such rent, or any quarterly part thereof, should become due "], then it should be lawful for the defendant to enter on the freeholder, or that the demise to defend- M. & G. 1055. See, also, Pratt v. Pratt, 2 ant was surrendered, &c. and a subsequent Ex.413; [Welling v Leak, 16 C. B. 652.] demise bythe freeholder to him, the plaintiff. (n) Or the pica might state that a third So the plaintiff may reply a sub-demise by party demised, and justify a reentry under the defendant to the" plaintiff before the tres- bis authority. See form, Roberts v. Taylor, oasses were committed. 3 D. &L. 4 ; 1 C. B. 117. (s) See Anthony v. Haneys, 8 Bing. 186. (x) Or title might bederieed from the free- It] As to right to enter to reclaim goods holder. See Wnght v. Burroughs, 3 C. B. tvhich have been stolen, Webb v. Bcavan, 6 685 ; 16 L. J. C. P. 6. PLEAS IX TORT. rBESPASS TO BEAM ! . the said house without any ejectment or process at law, and un and repossess the same, ami all occupiers thereof to expel and plaintiff entered into tlic said house under and by virtue of • and became possessed thereof for the Baid term and tenauc reversion of and in the said house then and during all the time hen tioned being in the defendant ; and afterwards and during the con t bus the said demise and tenancy, and before the Baid alleged tr< itiff omitted and neglected to, and did nol nor would, repair (y) nor keep io antable repair the -aid [house], and the Bame was then Buffered to lie. an. I in bad and untenantable repair, and continued 30, whereupon the del entered into and upon the said house, the outer dour thereof being then open, and took possession thereof, (z) which are the alleged tresp 10. Replication to the last Form, showing Facts making 1 1> D ant a Trespasser ab initio by converting Goods which he found in the House. Roberts v. Taylor, 3 D. & L. 4 ; 7 M. & G. 660. Ons. — See, also, Kavanagh v. Gudge, 5 M. & G. 727; 1 I). & L. 928; and a the right of forcible reentry against a person wrongfully withholding |> sion, see lb. and Newton v. Harland, 1 M. & <1. 644; and, also, Barn Brydges, 14 M. & W. 437; 3 1). v I,. 1 1 ; I C. 1!. 117 U (z) A plea which went on to justify as- seem these deft I saulting the plaintiff because he resisted be- evidence under a general plea ing turned out of the house, was held bad, license. Tomkins v. Lawz inasmuch as such an assault can only be jus- 731. tified in defence of defendant's possession ; vol. n. 46 722 PLEAS W TORT. TRESPASS TO REALTY. 14. Plea of Justification of Entry into a Close to hunt, S^c. under a Right granted by a Freeholder whose title accrued before Plain- tiff's. Wlckham v. Hawker, 7 M. & W. 63. 15. Similar Pica under a Right created by a Tenant for Life by virtue of a Power contained in a Will. Dayrell r. Hoare, 12 Ad. & E. 356. [16. Plea justifying Entry on Plaintiff's Land by Churchwardens under Acts of Parliament. Foster v. Dodd, 35 L. J. Q. B. 136.] COMMON OF PASTURE. Obs. — See ante, 496, 640; turbary; Wilson v. Willes, 7 East, 121 ; Grant v. Gunner, 1 Taunt. 435; Arlett v. Ellis, 7 B. & C. 346; to dig stones ; Peppin v. Shake- speare, 6 T. R. 748; minerals; Hoyle v. Coupe, 9 M. & W. 450; Paddock v. Forrester, 3 M. & G. 903 ; of a copyholder to dig coal ; Anglesea v. Hather- ton, 10 M. & W. 218, and see Wilkinson v. Proud, 11 M. & W. 33 ; to dig clay for making bricks; Clayton v. Corby, 2 Q. B. 813; right of common un- der the award of an inclosure act. Bailiffs of Godmanchester v. Phillips, 4 Ad. & E. 554. DI STRE S SE S. A nte , 6 44 et seq. EASEMENTS. Ante, 649. FENCES. Ante, 651. FISHERY. Ante, 652. GAME. Plea in Trespass for hunting, $c. on Plaintiffs Close, justifying as Servant of the Plaintiff's Landlord, under a Reservation of the dame in Plaintiff 's Lease, (a) Wickham v. Hawker, 7 M. & W. 63. LANDLORD AND TENANT. Ante, 655. LICENSE. Obs. — See plea and replication, &c. ante, 057, Obs.; and see the law on this sub- ject, Wood v. Leadbitter, 13 M. & W. 828. A license to reenter in case rent be unpaid, reserved by the instrument of demise, with a clause that such reentry may be pleaded as leave and license, may be given in evidence under this plea. Kavanagh v. Gudge, 5 M. & G. 727; I D. & L. 928. Form of license to enter, because; rent unpaid, &c. ante, 657. Form of plea of license by deed to sink pits, &c. and replication, Roberts v. Davey, 4 B. & Ad. 664. Plea of license to enter under a power to sell, and a covenant for quiet pos- (a) See form, last edition of this work, for the lands demised to take birds of warren, justifying by grant, &,<•. Pickering v. Noyes, Pannell v. Mill, 2 C. B. 625. Animals/era 4 B. & C. 639 ; Moore v. Earl of Plymouth, natural belong to the man on whose land they 7 Taunt. 614; 3 B. & Aid. 66; \ Pannell v. are; but immediately they leave it his pos- Mill, 3 C. B. 625.] " Royalties " excepted sessory title is gone. See Rigg v. Lonsdale, in a demise will not enable the lessor to enter 1 H. & N. 923. PLEAS IN TOUT. TB0V1 B. Obs. — session, conferred by plaintiff, the freeholder, on a trust* • i>t. Watson v. Waltham, 2 .VI. & B. 185. MENSE PROFITS. Obs. — In trespass for mense profits (see declaration, ante, 61 7), the defend plead not guilty, which would deny thai defendant occupied am plaintiff from possession; be mighl also plead b a l . -i that die premises were the plaintiff's. And see Jeffries v. D; S 960. Upon tlir latter plea, the defendant might give evidence of title in bi self, though he has let judgment go by default in the ejectment; the ju ineiit. therein not being conclusiv< evidence of title, Dot bei of estoppel. Doe v. Huddart, 2 Cr., M. & R. S16. See Bucn a replication in estoppel, Doe v. Wright, 10 Ad. & E. 763. NEW ASSIGNMENT. Ante, 671. NUISANCE. Ante, 676. PAYMENT INTO COURT. Ante, 682. SHERIFF. Ante, 690. TENANCY IN COMMON. Obs. A license from one who is tenant in common with the plaintiff to com the trespasses complained of, may be pleaded; the plea denying tl to be the plaintiff's (ante, 718), does not put in issue the plaintiff' ■ pot- session of it. Wilkinson v. Haygarth, 12 Q. B. 837. WAYS. Post, "Ways." [Other pleas to actions of trespass to land, see " I ^stresses," ante, 644 et »< >/■■ "Easements," ante, 649, "Fences," ante, 651, " Fishery," ante, 652, u land- lord and Tenant," ante, 655, " New Assignment," ante, 671, " Nuisai ." ante, 676, "Payment into Court," ante, 682, "Sheriff," ante, 690, "Ways," | « Ways."] » TROVER AND DETINUE. PLEAS, &c. IN TROVER. Obs. — 1. Not Guilty.— "In actions for taking, damaging, or converting the phun- tiff's woods, the plea of not guilty shall ..p-ratr as a denial oi the defendant bavins committed the wrong alleged, by taking, damaging, or converting the goods mentioned, but not of the plaintiff's property therein. K '■■ L. i » Conversion " means a tortious act, by which the defendant deprives the plain- tiff of his .roods. 2Saund.46. The plea of " not guilty then issue not only the conversion in fact, but the ^version leaalitv of such conversion. Young r. ( ooper, i. Ex. 1 15, 20 L. • Mayhewr.Herrick,7C.B.247; 18 L. J. C. P. 179 But the pi the" property of the plaintiff in the g Is. Notiung, therefore, can in evidence under not guilty that does Inul such, Davies, 6 Ex. 663; 20 L. J. Ex. 133; Barton v. Brown, 5 M. 8c \\ . 2 Tn Wilkinson v Wlnllev 5 M. & G. 590, the plaintiff dehvered a bill to the In d^rVV^n;t!,;nn.,d.,hi,hl HV,Jd. and ,h,n the plain,,, trover for it and i, was held thai the defendanl was entitled to th ESple^ofnot possessed, and per Cresswel] land , aniltv also In Hiffffins v. Thomas, 8 < ■ B. 908; 15 L. J. Q '• &\enh^hfa?I defendant were joint owners of -1 Ii on the ground that under the declaration tWO kinds 7"24 PLEAS IX TORT. TROVER. Obs. might be proved: first, a mere taking of the goods, and second, their total destruction; new the first would be justified if the plaintiff ami defendant were joint owners, but in that ease the plea would confess only a conversion in/act, and not one of a wrongful character; and the second could not be justified at all. S Thomas <•. Brown, 25 L. J. Ex. 34.".. But under not guilty the plaintiff's property in the goods cannot lie contested. Barton v. Brown, 5 M. & W. 298; Jones v. Davies, ubi s\ In conformity with the above principles, it would Beem that the defendant might show under not guilty the facts pleaded specially in Bonzi v. Stewart, 7 M. & (.. 746 : i' D. & L. 83G; viz. that the defendant bought the goods of plaintiff's agent, intrusted (under 5 & G Vict. e. 39) with authority to sell them: so leave and license either from the plaintiff himself, or from a person who was jointly interested in the goods with him, pleaded speciallyin Keiran v. Sanders, 5 Ad. & E. 515, or by a bankrupt or insolvent whom the plaintiff represents as assignee (pleaded specially in Jackson ,-. Thompson, 2 Q. B. 887; and similar special pleas in Hunt v. Robins, 3 Q. B. 300), would seem (as negativing a wrongful conversion) to be admissible under not guiltv; as would also a justifiable taking of the goods, such as a distress for rent, or for damage feasant (pleaded specially in Weeding v. Abitbol, 9 Ad. & E. 861; see the observations of Parke B. on this case, Unwin v. St. Quintin, 11 M. & W. 281 ; and Gregory v. Duke of Brunswick. 6 M. & G. 218, note (a)), or toll due (see Webb v. Trip, 1 Dowl. N. S. 589; Com. Dig. Act. on Case, Trover, G. 6), or by a sheriff under a,f. fa. (pleaded specially, Whitmore v. Robertson, 8 M. & AY. 463; Rawdon v. Wentworth, 10 M. & W. 36; 2 Dowl. N. S. 287; Ascue v. Sanderson, Cro. Eliz. 433: Bacon's Abridg. Trover. F. 2). The observations in Samuel v. Duke, 3 M. & W. 630, can scarcely be supported consistently with more recent cases. By an execution creditor set- ting such sheriff in motion. Pleaded specially in Kelsev r. Winter, 1 Bing. N. C. 721; Legg v. Evans, 6 M. &W. 36; Turquand v. Hawtrey, 9 M. & W. 727 ; Cheston v. Gibbs, 12 M. & W. Ill; 1 D. & L. 420. See plea to trover by assignees, justifying under a/, fa. against the bankrupt before fiat, and without notice of the act of bankruptcy, and replication that the judgment was, on a warrant of attorney, given by way of fraudulent preference. Al- dred v. Constable, 4 Q. B. 676; Scott v. Lewis, 7 C. & P. 347. By a bailiff that he acted under an attachment out of the county court, to compel the plaintiff to appear there by seizing his goods. Pleaded specially in Brown v. Copley, 7 M. & G. 558. where the plaintiff replied that a supersedeas had issued, and the court held that the sheriff was not liable for the tort of the bailiff after the supersedeas had issued. 2. Not possessed. — This plea denies, 1, the plaintiff's right of property in the goods; and 2, his right of possession at the time of the conversion. If the defendant has a lien on the goods, that negatives the latter of these proposi- tions, and therefore may be given in evidence under this plea. Owen v. Knight, 4 Bing. N. C. 54; White v. Teal, 12 Ad. & E. 113; and see Mason v. Farnell, 12 M. & "W. 674; Scarf e v. Morgan, 4 M. & AV. 273; Brandao v. Barnett, 1 M. & G. 908; Broadwood v. Granara, 10 Ex. 417; 24 L. J. Ex. 1; but see per Alderson B. in White v. Spettigue, 13 M. & W. 603; and see Barnewall v. Williams, 7 M. & G. 403. So may a detention, because the goods are subject to a toll which has not been paid. Turquand v. Hawtrev. 1 Dowl. N. S. 925. As instances that the plaintiff had no right of property in the goods at the time of the conversion, may be mentioned the following: that before the conver- sion he had parted with his property, title, or possessory right, and had none left to enable him to sue. Vernon v. Shipton, 2 M. "& W. 11. That the goods really belong to third persons; thus, in trover by a bankrupt against a sheriff for seizing his goods, the latter may show that the goods really be- long to the plaintiff's assignees. Leake v. Lovedav, 4 M. & G. 972; 2 Dowl. N. S. 632; and see Unwin v. St. Quintin, 11 M."& W. 277; 2 Dowl. N. S. 796. So in trover against the assignees of a bankrupt, the defendants may show under this plea that the goods were in the bankrupt's possession as re- puted owner, and thus passed to the assignees. Isaac v. Belcher, 5 M. & W. 139; 8 C. & P. 714; Edwards v. Scott, 1 M. & G. 962; Bingham v. Clements, 12 Q. B. 260; 17 L. J. Q. B. 289. So where a party conveys his goods to an- PLEAS IN TORT. 1 1:"\ I Obs. other by a deed or bill of sale which Lb fraudulent agaii which, Bee Chit, on Contr. Index, Fraud; Chit. Coll. v i veyances, vol. ii. p. I7:t; •_> Harr. Ind. Deed properly in the goods, and therefore :i sherin under a acainsl the assignor is bound to Beize the g Is; [mi W. 27") ; and it' afterwards sued in trover by the p give the facts in evidence under the above plea. Howarth v. I M. cV G. 129; Nicholls v. Bastard, 2 Cr., M. & K. 659, p P sheriff, when Bued bj the assignees of a bankrupt, may give i der this plea, thai be seized the goods under a /< before fiat and without notice of the bankruptcy, tjnwin - M. & W. 277; Belcher v. Magnay, 12 M. & W. 102. in" this defence in the preceding ■ ind in Edmuc L \\\ 286; Moo,,. ,-. Phillips, 7 M. & W. 586; Aldred v. Constabli 370; Belcher v. Magnay, 12 M. & W. 102; and Bee replication in ( Gibbs 12 M. & W. L 11, thai the judgment was on a ecuted by the bankrupt after the acl of bankruptcy, within two mo be sale, and that the sheriff sold after The defendant might also show under this plea thai the pi i let the goods for an unexpired term, or thai he had voluntarily third person to sell them to thi inl . Gregg v. V. or a stoppage in transitu before the) reached the plaintiff; Jac Nicholl, 4Bing.N. C. 508; YVentworth v. Outhwaite, 10 .M. & W. 186; an sale by sheriff of goods lei to hii Ti red v. Allg I. 28 I. J 362; 4 II. & N. 438; Lancashire &c. Co. v. Fitzhugh, 80 I.. J. E H. &N. 502; 1 Chit. Arch. 12th ed. 667. The mere possession of goods is Bufficienl to maintain trov* doer. Jeffries v. The Great Western Ry. Co. 5 El kB » L. J. B. 802. But the defendant can justify under the I . Til bury, 27 L. J. Ex. 407; 3 II. & N. 534; Sheridan v. New Quay < I B N. S. 618; Cheesman v. Exall, 6 Ex. 34; Freshney v. W 129; Biddle v. Bond. 34 L. J. Q. B. 137; 6 B. & S. 225. Under ti may also be shown that the conduct of the plaintiff estops him from main- taining the action. Pickard v. Sears, 6 A-l. \ 1. 169; and • Cornish r. Abin' U. I That the said goods and chattels were not, nor were any of them, the plain- tiff's, as alleged. [la. Answer denying Property and ' '■•»>■■ rsion. And the defendant comes and upon his personal knowledge deni [horse] mentioned in the plaintiff's writ was the property of the plaintiff, also denies that he converted the same to his own use.] (b) Not guilty will not put the plaintiff's and may be found parti title to thesis in issue'even to mitigate partly -for th< Wages. Finch r. Blount, 7 Speck w. Phillips, 5 M. & W. 286, per AM. r- Samuel v. Moms, 6 \ fcP. 65 son J. The issue in this plea is distributive, 726 PLEAS IN TORT. TROVER. 2. Plea of Property in the Defendant, namely, that the Tree grew on a Close, of which Defendant ivas seised in Fee, wherefore he cut it and delivered it to R. R., who delivered it to Plaintiff, from whom Defendant took it. (c) [3. Answer of Special Property. And the defendant comes and upon his knowledge and belief admits that said [horse] is the general property of the plaintiff, but avers that the defend- ant has a special property therein by reason of his having attached the same as the plaintiff's property, by virtue of a writ \_here describe it], which was deliv- ered to the defendant, who was then a deputy sheriff in the said county of , for service, and the action is now pending ; and so the defendant denies upon his personal knowledge that he has converted said [horse] to his own use.] ASSIGNEES OF A BANKRUPT. Obs. — The observations made on the effect of the plea of not guilty, ante, 636, and the plea of " not possessed," ante, 725, apply in general to pleas in actions of trover by and against assignees of a bankrupt. In trover by assignees to recover goods claimed by them as having been fraudulently assigned by the bankrupt before his bankruptcy, if the defendant rely upon the validity of the transfer to him, he may dispute the title by a simple denial of the allega- tion, that the bankrupt, or the plaintiff as assignee, as the case may be, was possessed of the goods. In trover by assignees, a plea denying that the plain- tiff's are assignees, &c. see ante, 312, will put in issue tbe trading, act of bank- ruptcy, petitioning creditor's debt, fiat, and proceedings, provided notice to dispute those. facts be also given. Buckton v. Wray, 8 Ad. & E. 844; Butler v. Ilobson, 4 Bino\ N. C. 290. These facts cannot be disputed under a plea denying that plaintiffs were possessed, &c. Byers v. Southwell, 9 C. & P. 320. In trover against assignees, a plea that the plaintiff was not possessed, will enable the assignees to contend that the property in the goods has passed (c) This form was held good on demurrer therefore a confession so far as to admit some in Morant v. Sign, 2 M. & W. 95 ; and see sort of apparent right or color for the action, the above case commented on in Acraman v. and the plea consequently complies with the Cooper, lo .M. £ W. 585; 2 Dowl. N. S. 495. terms of the rule now under consideration See a plea framed on the same principle in (that pleas in confession am! avoidance should an action by a lord of a manor against a give color), and is sufficient. Leyfield'a case, copyholder, justifying taking coals on the 10 Co. Rep. 88 ; Reg. Plac. 304. So to an ground of :i custom for the copyhold tenants action of trespass for taking the plaintiffs to have them. Anglesea v. Hatherton, lu M. sheep, the defendant may plead in confession & W. ills: and see Unwin v. St. Quintin, 11 and avoidance that J. P. was possessed of M. & W. 217 : and Cooper v. Shepherd, 15 them and sold them to him, the defendant, in L. J. C. P. 237. Formerly it was necessary market overt, for though this does not admit that a special plea of this kind should give the sheep to have been the plaintiff 's when what was called color. In some eases the the defendant took them as alleged in the real facts themselves invest the plaintiff with declaration ; yet it admits them to have been a colorable title. Ward v. Robins, 15 M. & his subject to the effect of tlu sale in market W. 237. To an action of trespass for taking overt, and therefore gives some color to the the plaintiff's corn, the defendant may plead plaintiff's claim. Comyns v. Boyer, Cro. in confession and avoidance that he was rec- Eli/.. 485; Fancourt v. Bull, 1 Bing. N. C. tor, and thai the corn was set out for tithe, 681. But formerly if to a similar declara- and thai he took it as such rector. Now it tion the defendant were to ['lead that J. S. is to be observed, that this is not an absolute was possessed of the sheep as his own prop. confession thai he took the plaintiff's corn as erty, and sold them to him in market overt, alleged in the declaration. The defendant the plea would be bad, because it tends to 1 1 - on i he contrary a title to the corn in deny that the property was ever in the plain- himself. But still lie admits that the plain- tiff, and gives no color to the claim. Vin tiff was the original owner and entitled against Abr. Color, G. ; Doct. PI. 77. ill tlm world except the defendant. There is PLEAS i\ rOBT. DETIN1 i . 7-J7 Obs. to them as being in the reputed ownership of thel inkrup bankruptcj ; and thi< plea «ill also suffice in : h • < i < > ■ i tlir bankrupt to trj the validity of the fiat. A era! issue "by Btatute." Knight '•. Turquand, ■_' M. 8c W, goods may be considered to 1»- in 1 1 1 -der and disposition 3Toung v. Matthews, L. R. 8 ('. P. 127; Green v. [ngham, I.. I; 3 < , I Priestly v. Pratt, L. R. 8 Ex. LO 1. Plea in Trover />>/ Assignees that the Plaintiffs wen i n of the goods would erty the plaintiff must have to maintain det- to be inapplicable in detinue. Gregson inue. 1 Chit. PI. 7th ed. He must show a v. Ru-h, 4 Q. B. 745. And it is no defence right to have the goods delivered to him. that other persons, co-tenants with the plain- Land v. North, 4 Doug. 266. tiff, are not joined as plaintiffs. Broadbent PLEAS IN I "I; |. DETINUE. Obs goods for the price of Buch work and necea ary mab see Scarfe v. Morgan, 4 M. & N ■ Jacob I vided there be no outstanding security not due; II N. C. 759; or other agreement inconsistent "i'l> the lien have the righl to the uninterrupted p i of the ch Cummins, 5 M. & W. S42. As to the lien of innkeei Lacy, 5 B. & AM. 283; Proctor v. Nicholson, ~> C. the true ownei olen horse, provided the innkeeper did i theft. Ba ion's Abridg. [nns, l>.; Burn's J. AL ho > \ II. [The artificer to whom are delivered for the purp up into Eorm, and fche farrier by whose skill an anim and the horse breaker by whose skill he is rendered in them in reaped of their charges. Scarfe v. Morgan, W. ! Parke B. in Jackson ».Cummins,5 M. & W. 342,849; Steadman 11 15 M & W, 553, 556; Hollingswortb v. Dow, i I ray 3 Vt. 302; Partridge v. Dartmouth < 5 N. Ii Cook, 3 Hill. 491. A carriage-maker has a lien for the re] riase delivered to him to be repaired. Gr - "■ ■>77~ The keeper of a stallion has a lien on a mi Scarfe v. Morgan, 4 M. & W. 270. So, if a pe horse to keep and cure, he has a lien on the horse for I Lord I?. Jones, 24 Maine, 139. A trainer of racehoi c haro-e for keeping and training them; Bevan v. Waters, M Forth" 0. Simpson, 18 Q. B. 680; Jacobs o. Latour, 5 Bin owner expressly stipulated for the possession of his horse where required, the Ser has no lien. See Scarfe v. Wgan, iM&W. 270 2 Cummins, 5 M. & W. 342, 350. So a livery stabl keep of a horse, because the owner impUedfy, if not expr. the possession when required; Judson 0. Ethendge, l r. & M v. Wood^ate, 11. & M. 193; Miller v. Marston, 35 M md in l manner,°an agister .of cattle has no lien, because the oal is inconsistent with a detention by him. Ja * Cumnun 342; Goodrich r. Willard, 7 Gray, L83; Miller ».M Grinnell 0. Cook, 3 Hill, 491, 192. An innkeeper has a hen on tb Ms guest for the amount of his biU, also on'the b gj occasionally taken out for use; Allen «. Smith £ lien extends to goods brought to the inn byth ™ out to be the property of a third person, Sn ad r. Watkins, . • 267, provided they be such as a person ml manly ^travel w v. Watkins, 1CB.N. S. 267; Broad* I v. Gran i innkeeper has no Uen upon a horse put into his sub or hrnuaht there bv, a miest. Binns 0. Pigot, :> i . \ \ ■ - », ' GreZ 1 iBarb -.1 See Johnson 0. HiUTs Stark. ter^opham, 127; Grinnell v. Cook, 3 Hill, 487. Anmnk. ■> the goals of a boarder for the price ol his I ■ Ewart .. (8. Car.) 423. A lien is given for such a ... benhStic. 151, § 29; see Mills 0. Shirlev, 1 rill 10 Allen 360. See. further, as to innkeeper - hen, bmith I bC B 18^ Sunbolf ,• Uford.SM. 8c W. 248; P lcP.G7 ^.rill';,('raw., y ,.:;<>.U. V :, A .-any .,, lien on the g Is carried for the sum due ,n , oftheca ^^;",:V;;;;-:;;n,,,,uas^a 7 :. "with and in respect of » d. held *ha upon the d Is for his charges Eor the business 730 PLEAS IX TORT. DIM IV"! i.. Obs. abandonment of the possession of the property. King v. Indian Orchard Canal Co. 11 Cash. 231; Morse v. Androscoggin It. It Co. 39 Maine, 285. But the bailee does not lose his lien by claiming it for other charges besides that for which he is entitled to hold it, or by claiming it for too great an amount, unless the proper amount is tendered. Scarfe o. Morgan, i M. & W. 270; A a v. Smith, 12 C. B. N. S. 638; Jones ,-. Tarlton, 9 M. & YV. 675. Where a (battel is detained for a lien, and charges are incurred in keep- ing and taking care of it, no claim can be made for those charges. Somes v. British Empire Shipping Co. 8 II. L. Cas. 338. A lien cannot lie avoided by an offer t" set-off a debt against the amount for which the lien is claimed. See Clarke r. Fell, 4 15. & Ad. 404; Pinnock v. Harrison, :j M. & W. 532. By express agreement, or by the usage of particular trades ami professions, a lien may be created for the general balance of account between the parties: thus an attorney bas a lien for bis general balance on the deeds and papers of bis clients which have come to bis bands in the course of bis employment. See 1 Chit. Pr. 12th ed. 135. A banker bas a general lien upon the securi- ties of his customer. Davis v. Bowsher, 5 T. B. 488; Barnett v. Brandao, 6 M. & G- 630; as to what is a security within the banker's general lien; see W'ylde v. Badford, 33 L. J. C. 51 ; and as to the right of a banker to retain a customer's balance against bills discounted for him, see Agra & Master- man's Bank v. Hoffman, 34 L. J. C. 285. A factor has a general lien upon all goods consigned to him as factor. Dixon v. Stansfeld, 10 C. B. 398. A wharfinger or warehouseman has a similar lien. Holderness ». Collinson, 7 B. & C. 212. A warehouseman cannot assert a general lien against all goods deposited by a factor in his own name whether his own or not. Leuckhart v. Cooper, 3 Bing. N. C. 99: and see Dresser <•. Bosanquet, 4 B. & S. 460. Stockbrokers have a general lieu upon the securities of their customers. Jones v. Peppereorne, 1 Johns. (Eng.) 430. As to lien between principal and agent, see Bock v. Gorrissen, 29 L. J. C. 673; 30 lb. 39. An auctioneer has a lien on the price of property sold by him for his commissions and charges. Bobinson v. Butter, 4 El. & Bl. 954; "Coppin v. Craig, 7 Taunt. 240. A mere lien gives no right of sale, and is not assignable; M'Combie v. Davies, 7 East, 5; Thames Ironworks Co. v. Patent Derrick Co. 1 Johns. & H. 93; Bradley t?. Spofford, 23 N. H. 446, 447; D'Aubigney v. Duvall, 5 T. B. 606; but a pledge or bailment of goods to secure a loan gives a power of sale upon de- fault of the borrower, and is assignable before default. Pothonier v. Dawson, Holt, 383; Martin v. Reid, 11 C. B. N. S. 730; Johnson v. Stear, 15 C. B. N. S. 330; Pigot v. Cubley, 15 C. B. X. S. 701; Donald v. Suckling, L. B. 1 Q. B. 585. The defendant may be ordered to deliver particulars under the plea of lien. Owen v. Ndckson, 30 L. J. Q. B. 125.] 1. Plea of Lien by a Tradesman for Work. (/) That the . said goods were delivered by the plaintiff to the defendant, to be by him, in the way of his business of a , repaired [as the case may be~\ for the plaintiff for reward, (g) and the defendant received the said goods and chattels, and supplied materials for and repaired the same, and the reasonable (/) See forms, &c. Judson v. Etheridge, fendant under distinct contracts (see Chase v. 1 Cr. & M. 74:; : Coombes v. Noad, 10 M. & Wcstmore, 5 M. & S. 180), for work to be W. 127 ; 2 Dowl. X. S. .315. This plea will done in respect of each article, it seems there be allowed along with " no property " and must he a seji\wn for work and labor done by defendant, as such attorney, solicitor, and conveyancer, for the plaintiff and upon his retainer, and at his request, and for fees payable to the di fendanl in respect thereof, and for money paid, laid out, and expended bj the defendant as such attorney, solicitor, and conveyancer, for the plaintiff, and at his wherefore the defendant detained and still detains the same. 4. Plea of General Lien by Woolfullers, they earryh the Terms of such Lien. Cumpston v. Haigh, 2 Bing, N. C. 4 I'.'. Replication, [b.j [Coombs N 10 M. & W. 127.] 5. Plea of General Lien by a Warehouse Keep< r in L ndon. Leuckhart v. Cooper, 3 Bing. N. < !. 99. (») [6. Plea by Bankers of a General Lien on Q U depos/ffd irith them. O'Connor v. Majoribanks, 4 M. & G. 435; Harnett v. Brand 630. Plea by an insurance broker of a general lien on a for a balance of account. Hewison v. Guthrie, 2 Bing. N. I general lien by a factor. Dixon v. Stanafeld, 10 C. B. 8 18. P in transitu and lien by unpaid vendor. Cooper v. Bill, 8 BL & C ' (h) See other forms, Lightfoot v. Keane, 1 M. &W. 745; Robertson v. Showier, 2 D. the right to the fii &L 687; 13 M. & W. 609. Attorneys have has a ri a general Hen against their clients, see Tidd, deeds. Austin u • :nh ed. 337; Chit. Arch. 12th ed. 135; II u Hair. Ind. Attorney; Davies v. Vernon, 6 11 481 Irish. Q. B. 44.3; Wakefield o. Newbon, 6 Q. B 276. The legal owner of an estate, Phillips I I 732 PLEAS IN TORT. DETINUE. [7. Plea to a Count for the Detention of Deeds, that they were deposited as Security for a Debt. That before the alleged detention the plaintiff deposited the said deeds and instruments in writing with the defendant, to be by him kept as a pledge and security for and until the repayment by the plaintiff to the defendant of S , then lent by the defendant to the plaintiff upon the security of the said deeds and instruments in writing, and the defendant received and had the same for the purpose and on the terms aforesaid, and at the time of the alleged deten- tion the said $ was and still is due and unpaid to the defendant, where- fore the defendant detained [and still detains] the said deeds and instruments in writing, which is the alleged detention. Like pleas. Gledstane v. Hewitt, 1 Cr. & J. 565 ; Chilton v. Carrington, 15 C. B. 95 ; Owen v. Nickson, 30 L. J. Q. B. 125.] 8. Equitable Plea that Deeds were deposited by the Plaintiff by way of Equitable Mortgage to secure an Advance to a Third Person. Ante, 377, Form 15. [9. Plea of Lien by a Coachmaker. Pinnock v. Harrison, 3 M. & W. 532. By an engraver. Marks v. Lahee, 3 Bing. N. C. 408. By a carver and gilder. Legg v. Evans, 6 M. & W. 36. By a warehouse keeper. Leuckhart v. Cooper, 3 Bing. N. C. 99. By an innkeeper. Allen v. Smith, 12 C. B. N. S. 638. By an accountant. Sea Atwood v. Ernest, 13 C. B. 881.] 10. A like Plea of a Deposit of G-oods in Exchange for other Goods on which the Defendant had a Lien. (Jc) Sheppard v. Union Bank of London, 31 L. J. Ex. 154 ; 7 H. & N. 661. 11. Replication that the Plaintiff tendered the Amount of the Lien. (J) That before the said detention the plaintiff tendered and offered to pay to the defendant £ , in satisfaction and discharge of the said lien, such sum being sufficient to satisfy and discharge the same, and then requested the defendant to deliver up to the plaintiff the said goods, and the defendant refused to accept the said sum or to deliver up the said goods. (k) See 5 & 6 Vict. c. 39, s. 2. value of nil the work actually done on a chat- (/) See another form, &c. Marks v. La- tel, though that lie not all contracted for, hee, 3 Bing. N. C. 408. The rejoinder de- puts an end to nil lien on it. Lillie v. Barns- nied that the sum tendered was sufficient to ley, 1 Car. & K. 344; 2 Mood. & Rob. 548. Batisfy the lien; it was held that this was A repudiation of plaintiff's title l<> the chat- nut an immaterial issue, although the repli- tel operates as a waiver of a lien against cation laid the sum tendered under a scilicet ; him. Dirks u. Richards, 4 M.. & G. 574 ; 1 the sum is material, and the rejoinder should Cr. & M. 626; and a tender of a specific be as above, or that the plaintiff did not ten- lien is waived, if defendant, claim a right der the sum named, and not that a sufficient of retainer for a general balance. Jones v. sum was not tendered. lb. See, also, Wil- Tarleton, 9 M. & W. 675. The plaintiff Hams v. Price, 3 B. & Ad. 695 ; and Coombes might reply a release of the debt. Cooper v. Noad, 10 M. & W. 127. A tender of the v. Green, 7'M. & W. 633. PLEAS IN TOBT. WAN l:< 01 1: 12. To a Plea of Lien ; Replication thai Defendant wroi ered the Q-oods to other I' m ) That after the said goods had been delivered by the plaintiff 1 t" the ant as in (lie last plea alleged, and \\ liil-i the defendanl held tin said, the defendant wrongfully, without the plaintiff' with to other persons than the plaintiff ill'' 3aid ind chattels in tin- declaration mentioned. 13. Plea of Lira by a Carrier. That the said goods were delivered to the defendant, who receivi same to be carried as a common carrier, and at the time of their detention the defendant had a lien upon the said goods for money payable !>y the plain- tiff to the defendant for the carriage of the said goods as aforesaid, which money has not been paid, wherefore the defendant detained the said goods. 14. Other Replications to Ple«s of Lit n. Replication to a plea of lien for a sum for work done to several goods, that the works were done under separate and distinct contracts. Mark v. I.. 3 Bing. N. C. 408. To a general plea of lien, replication that the goods were not delivered on the terms stated, &c. Cumpston v. Haigh, 2 Bing. N. C. 449; 2 £ J4. WAGON OFFICE KEEPER. Obs. — In an action against a wagon office keeper for not forwarding or l< goods (see ante, 624), not guilty would deny the ueglecl or breach of duty, but not the receipt of the goods for the purpose stated in the ktion. See forms of pleas, and Obs. ante, 624, " Cani WARRANTIES. See declarations in fraud, ante, 518; pleas, ante, 652. WASTE. See " Landlord and Tenant," ante, 655 ; « Reversion," a \ - to waste of ornamental fixtures, see Avery v. Cheslyn, 8 Ad. A K. - 5. WATERCOURSK. Obs.- See ante, 624. In an action for diverting, &o. a waterc "Moh j* tiff was entitled, not guilty denies the mere fact of diverdon (m) In this case the owner's right of re- & eves v. Capper, possession revives. Scott v. Newington, 1 Uiat without tender ol thi Mood. & Rob. 252 ; and see Howes v. Ball, Cliff, 1 <- ■*. ^v M •■«" 7 B. & C. 481 ; Ryall v. Rolle, 1 Atk. 165; 734 PLEAS IN TORT. WATERCOURSE. Obs. by the defendant. See South Shields Waterworks Co. v. Cookson, 15 L. J. Ex. 315. It admits the plaintiff's possession and his title or right to the en- joyment of the water. Frankum V. Lord Falmouth, 2 Ad. & E. 452. And Dukes r. Gostling, 1 Bing. N. C. 588. As to the right to obstruct a watercourse bv which water was wrongfully discharged on the defendant's land. s,e Roberts v. Rose, 3 H. & C. 162; L. R. 1 Ex. 82. 1. Denial of Plaintiff's Right to the Use of the Water, (n) That the plaintiff was not entitled to enjoy the benefit and flow of the said stream or watercourse to the said mill [as in the declaration], as alleged. 2. Denial of the Plaintiff's Possession. That the plaintiff was not possessed of the said mill [as in declaration], as alleged. 3. Plea of Immemorial Right at Common Law. (o) That the defendant at the time of the alleged grievances was seised in fee of a mill, and he and all those whose estate he had therein from time imme- morial enjoyed the right of diverting and using the water of the said stream for working the said mill, and the alleged grievances were a use by the defend- ant of the said risdit. .- 4. Plea (under 2 ) [See a plea justifying (under a rail- But when the declaration is framed on the way act) the obstruction of ancient lights, plaintiff's possession only, and not on the Turner v. Sheffield & Rotherham Ry. Co, 10 ription act, that statute does not apply to M. & W.426; and see a general pleajustify- the jileas. Per Parke B. Ward v. Robins, ing under a statute, Beaver v. Manchester 15 M. & W. 240; std qu.t The defendant 8 El. & Bl. 44.] PLEAS IN TOBT. WATEBCOl I: 5. Plea (under 2 ft 3 W. 4, c. 71 ) of a Prescript Water for Agrt cultural Pur} That the defendant ;tt the time of the alii land, the occupiers whereof for twenty [or "forty" enjoyed as of right, and without interruption, the right of d the said stream for agricultural purposes for the more advani tion of the said land of the defendant, and thai thi uses by the defendant of the said right. 6. Plea to a Declaration for lowering a Wt ir and th r< by I he Water from flowing to Plaint iffs Mill, that for 7 I before Suit the Defendant had a Right to lower the Weir for the purpose of Irrigation. Ward v. Robins, 15 M. & W. 287. (y) 7. Plea justifying Trespass Quare Clausum Fregit because th ' of a Mill had the Easement of going on to the Close to repair B of a Stream which flowed to the Mill. Clay v. Thackrah, 9 C. & P. 47; 2 Mood. & Rob. 2 1 1. 8. Plea of the Right t<> fctrh Water from a Public P Manning v. Wasdale, 5 Ad. & E. 764 ; and see Form 1. post, " \\ [9. Plea, by a Tenant, of a Right by Xon-crisfing Q the Water for a Mill. That at the times of the alleged grievances J. K. was • mill called Mill; and long before the times of the alleged grievances, by a deed made between [L. M.] the then owner of the said land new of the plain- tiff, and which said owner [or " L. M."] was then Beised thereof in fee, and [N. O.] the then owner of the said mill who was then Beised u mill, and whose estate therein the said J. K. had at the time- of the all- grievances respectively (but which said deed has been lost or -I I by accident), the said then owner of the land now of the plaintiff [or "the L. M."] granted to the said then owner of the said mill [or ~ the aaid N. and to his heirs and assigns the right for himself and themselves, his and their tenants and servants, of diverting and using the water of the -aid river for the working of the said Mill; and by virtue of the said -rant, the defendant, at the times of the alleged grievances respectively, as and being the tenai the said J. K. of the said mill, was entitled to the right of diverting and uai the water of the said river for the working of the -aid mill, and th. grievances respectively were uses by the defendant of the said rigl (q) This plea was held good on special de- inconsistent with th mnrrer, alleging that it was an argumenta- time of the commit tive traverse of the plaintiff's right, on the Sampson v. 1 . I « . i- gronnd that the defendant's right under 2 L J C. 1M < &3 W. 4, c. 71. was not complete antil tk Bl. 665. E 1 *«onal Manow commencement of the suit, ami therefore not Donald, [4 H. « H 736 PLEAS IN TOKT. WAYS. defenihutt is himself seised in fee, instead of being a tenant, the plea must be ■modi fed accordingly. Plea of an express grant of a right to discharge refuse from bleaching works into the strain/, justifying pollution under the right. Hall c. Lund, 1 H. & C. 676. PL a by a mill-owner of a prescriptive right to take water from a canal for the use of steam-engines and other 2)urposes. Rochdale Canal Co. v. Rad- cliffe, 12 Q. l'>. 'J' s 7. Plea justifying the use of the water of a stream as a riparian proprietor. Embrey v. Owen, 6 Ex. 353. Plea of a prescriptive rigid to discharge noxious water into a stream. Wright v. Williams, 1 M. iV: W. 77 ; Moore v. Webb, 1 C. B. N. S. 673. Plea of a prescriptive right to scour and amend the channel of a watercourse. Peter v. Daniel, 5 D. & L. 501. Plea justifying the obstruction of a watercourse because the plaintiff thereby wrongfully discharged water on to the defendant's land. Roberts v. Rose, L. R. 1 Ex. 82.] WAYS. Obs. — See declaration, &c. in case for disturbing a right of way, and notes, ante, 632. See 2 & 3 W.4, c. 71; 1 Chit. PI. tit. Prescription; Gale on Ease- ments, by Willes. Before that statute a right of way could only be claimed on the ground of its having existed continuous!// from time immemorial. But this continuity of enjoyment could be defeated by evidence of any fact (such as unity of seisin at any time of the several properties in the same person), which actually negatived it. To obviate this, the plea of non-ex- isting grant of way from a former freeholder was adopted. See Blewett v. Tregonning, 3 Ad. & E. 554. On proof that the pretended grantor and gran- tee (for it was necessary to mention names; Hendy v. Stevenson, 10 East, 55) were concurrently freeholders, with evidence of long enjoyment of the way, the grant of the latter was presumed. See 1 Saund. 323 a. These difficulties are obviated by the 2d and 4th sections of the statute (cited ante, 479, and 624, Obs.), which provide that proof of enjoyment for twenty years next before suit (but for no less time, s. 6), as of right (post, 737. note (s)), and without adverse (Carr v. Foster, 3 Q. B. 581) interruption acquiesced in for a whole year (s. 4), shall not only be deemed presumptive evidence of the right (unless in the case of a tenancy for life, disability from infancy, &c), but shall not be defeated merely by showing that the enjoyment frst took place at a time prior to that period, and that a forty years such user shall confer an absolute right (even against disabilities, s. 7), unless it was origi- nally granted by writing, or unless in the case of a tenancy for life. S. 8; Clayton v. Corby, 2 Q. B. 817. 1. Not Guilty. Ante, 636. Obs. — By r. 16, T. T. 1853, "In an action for obstructing a right of way, such plea will operate as a denial of the obstruction only, and not of the plaintiff's right of way." The plaintiff's right of way therefore must be specially traversed. 2. Traverse of the Right of Way. (V) That the plaintiff was not entitled to the said right of way, as alleged. (r) The plaintiff might also deny that assign extra viam ; may deny that defendant ''the said fences, &c. and posts were erected was the occupier of the close in respect of or standing, or were in, upon, or across any which the way was claimed at the times the part of the said footway," &c. and also new trespasses were committed, or may traverse PLEAS IN TORT. WAYS. \V 3. Plea (under 2 ^ 3 W. 4, t\ 71) of a Privat /,' .;■<'■ R enjoyal for Twenty )'■ ar • That the, defendant at tin; time of the alleged in- land, the occupiers whereof I'm- twenty years before this luil • i (V( n: ;, ai - before I lie In - ; ;i«Ki plained of. w 77 ; Richards v. Fry, 7 Ad period i- i ■■■•• ntj • or action wherein the claim t" • brought into question, and is not limif the period of twenty pending Buit or action I 12 C. B. N. S. 456. I ui.- is to legalize, by relation back, all within the prescribed period, if bucIi p< elapBed before suit, althouj were committed thev were tn might l»' bo treated, if, when the actioi brought . there had not been for the requisite term. Instead ol the right here t" have from timi memorial, it is now sufficient to alleg enjoyment as of righl by ill scupn the tenement for twenty or • case ma] be) years. 9 i 3 W. 4, i 71. b. 5 The words " as of right tial here, and t he omission would m cured by verdict. Eolford v. Banians Q, !'.. 584. " If the way h:is been by the claimant, not openly and in the man- ner a person rightfully entitled would used it, but by Btealth, as air. have done — if he should havi asked the permission of the occupier of the land — no title would be acquit was not enjoyed ' as of right : ' for I lid not, if there had I of possession during all or part for then the claimant would not h <■•• ■ joyed 'as of right' the easement, bu soil itself." Bright v. Walker, l I 1!. 211. Evidence of enjoyment with all manner of carria - irily prove a right of way for all manm tie ; but it is evidence of a d jury to consider together with the ■ donee ; for the extent of the dence of a right only commi the user. Buflard v. Dyson, 1 Tannl The termini of a pul in the Dig. Chimin, D. 2; Ba waj - < ' ; 2 Sannd 158 d Bal it is . to describe all the closes int< between the two termini. Tht i the claim was in the form in the t appeared that the way was from • close d of third \ into the defendant that the plea was sufficiently p Lewthwaite, 3 B \ as above the right of way. Under this trav- erse the plaintiff may show, without new assigning, that the defendant had a righl of way for certain purposes only, and that li»; used it for other pur poses ; Cowling v. Big- ginson, 4 M. & V7. 245 ; or that the way claimed has been extinguished by unity of posses-ion. Onlev r. ( ianliner, 4 M. & \V. 496; Clayton v. Corby, 2 Q. B. 815. And the same applies to a similar traverse of the forty years' plea. Clay v. Shackery, 2 M. & Rob. 244 ; England v. Wall, it) M. & W. 701. The plaintiff also might show under this traverse any fact inconsistent with the enjoy- ment of the way "as of right," sueh as that it was enjoyed by stealth, as a trespasser would have done, or by grant ; Bright v. Walker, 1 Cr., M. & R. 211 ; or in the ab- sence or ignorance of the parties interested in opposing the claim ; lb. ; and Beasley ». Clarke, 2 Bing. N. C. 705 ; or by leave occa- sionally asked. Post, 742, form 11. The principle and decisions upon the statute 2 & 3 W. 4, in regard to the ell'eet ami operation of the general denial of the right of way are noticed. As to replying specially the i tions in the statute, see lb.; Wright v. Wil- liams, 1 M. & W. 77. According to the cases it is rarely necessary to reply specially. Where there is an undoubted right of way, but the defendant has deviated from the track, or been guilty of excess, the plaintiff should new assit/n (as ante). See lb. as to replying excess. The interruption to defeat a prescrip- tive right must be an adverse interruption, not a mere discontinuance of user by the claimant, and this is a question for the jury. Carr v. Foster, 3 Q. B. 531. (s) Form as given by the common law procedure act, 1852 (15 & 16 Vict. c. 76), sch. B, 46. See forms, Pavne v. Shedden, 1 M. & R. 382; Jones v. Price, 2 Bing. N. C. 52; Winship v. Hudspeth, 10 Fx. 5; [Williams v. James, L. R. 2 C. P. 577.] Justification by trustees of a road under a local act to make a new road. Lister v. Lob- ley, 7 Ad. & E. 124. The plea claiming by virtue of forty years' enjoyment will be pre- cisely similar to the above, only substituting the word forty for twenty. A previous user of fifty years not carried later than four years before suit, will not support such a plea. Parker v. Mitchell, 11 Ad. & E. 7ss. The word "next" is not essential. Jon- Price, 3 Bing. N. C. 52. Though by the 4th section of the prescription act, ante, 479 and 625, Obs.,the twenty year- must be counted as those next before the action (see Ward v. Robins, 15 M. & W. 240), it is sufficient to allege an user for twenty years before the commencement of the suit ; it would be incorrect to allege it to have vol. ii. 47 v. Louch, 6 Q B 904 There i lays down that ; acute angle in order l does not lead " towsur • minus. Rex v. Mar- h '38 PLEAS IN TORT. WAYS. right and without interruption a way on foot, and with cattle, from a public highway over the said land of the plaintiff to the said land of the defendant, and from the said land of the defendant over the said land of the plaintiff to the said public highway, at all times of the year, for the more convenient occu- pation of the said land of the defendant, and that the alleged trespasses was a use by the defendant of the said way. (t) 4. Plea justifying the Removal of Obstructions in Exercise of a Right of Way to water Cattle. That at the said times when [#c], he, the defendant, was possessed of land, the occupiers whereof for twenty [or "forty"] years before this suit enjoyed as of ri^ht and without interruption the right of watering their cattle levant and couchant on the said land of the defendant, at a certain watering-place Ad. & E. 232, 240. If the user and right he limited to particular periods or purposes, the plea must state the fact accordingly, A right of way for agricultural purposes is a limited and" qualified right of way, and does not necessarily confer a right to use such way for general and universal pur- poses. Jackson ?'. Stacey, Holt N. P. R. 455 ; Cowling v. Higginson, 4 M. & W. 245. Bight of way to carrv minerals. Monmouth Canal Co. v. Harford, 1 Cr., M. & R. 614; David v. Kingscote,6 M. & W. 174. [As to the proof of qualified rights of way, see Cowling v. Higginson, 4 M.& W. 245 ; Dare v. Heathcote, 25 L. J. Ex. 299. Any use of the way beyond what is justified by the right is a trespass. Colchester v. Roberts, 4 M. & W. 769; Henning v. Burnett, 8 Ex. 187; Skull v. Glenister, 16 C. B. N. S. 81 ; Wil- liams v. James, L. R. 2 C. P. 577.^ A right of way to a piece of land is prima facie re- stricted to the purposes necessary for the ordinary and reasonable use of such land. Williams v. James, L. R. 2 C. P. 577 ; Dav- enport v. Lamson, 21 Pick. 72 ; Washburn's Easements (2d ed.), 87, 240 et seq.; Shroder v. Brenneman, 23 Penn. St. 348. Pleas of rights of war for special purposes, Parker v. Mitchell, 11 Ad. & E. 788 ; Bennison v. Cart- wright, 5 B. & S. 1.] Upon a plea of right of way to fetch water and goods from a river, the jury having found the right to fetch water and negatived the right to fetch goods, the court ordered judgment to be entered for defendant as to the right to fetch water, and for t he plaintiff as to the right to fetch goods. Knight v. Woore, 3 Bing. N. C. 3 ; Phy- thian v. White, 1 M. & W. 216. To enable the verdict to be entered distributively, the plea must contain within itself the ri^lit found by the jury ; a general right of way •will not, in this sense, include a ri«rht for carting timber only ; Hicham v. Rabbett, 5 Bing. N. C. 627 ; 7 Dowl. 653; nor will a claim of a right of way to lead and carry away manure include a rijrht of way on foot and for horses and cattle. Brunton v. Hall, 1 Q. B. 792. And see as to taking pleas dis- tributively, Common Law Procedure Act, 1852, 8. 75. Proof of a way over any part of the close will support this allegation, and plaintiff must new assign if he goes for dam- ages for destroying the posts, &c. they not being situated on the way in question. Web- ber v. Sparkes, 10 M. & W. 485; and see Smith v. Rovston, 8 M. & W. 381 ; Wood v. W T edg\vood,"2 D. & L. 809; 2 C. B. 276; Bracegirdle v. Peacock, 15 L. J. Q. B. 73. In the case of a private way there is no right to go out of the way because the way is impas- sable, unless it was the duty of the owner of the land to repair the way, and it was impas- sable through his default; Bnllard v. Harri- son, 4 M. & S. 387 ; Taylor v. Whitehead, 2 Doug. 475 ; aliter in the case of a public way. Add a plea claiming by virtue of forty years' enjoyment ; other pleas should also be added, one claiming the right by non-existing grant, post, form 7, if it be probable that the right really claimed may be defeated by any facts, such" as unity of possession, which shows that there has not been a continuous enjoy- ment as of right for the twenty years. See Onley v. Gardiner, 4 M. & W. 501. Another plea may sometimes be judiciously added claiming the right immemorially. The plea is not proved by evidence of a long enjoy- ment not carried later than two years before suit. Lowe v. Carpenter, 6 Ex. 825. In an action against a railway for obstructing a right of way under the canal clauses act, special damage must be shown. Watkins v. Great Northern Ry. Co. 20 L. J. Q. B. 391. Eorm of plea of right of way by grant, Ackrovd v. Smith, 10 C. B. 164 ; [Senhouse v. Christian, 1 T. R. 561 ; Campbell v. Wil- son, 3 East, 294 ; Plant v. James, 5 B. & Ad. 791 ; Henning v. Burnet, 8 Ex. 187; Pear- son v. Spencer, I B. & S. 571 ;] by non-exist- ing grant, Tatton v. Hammersley, 3 Ex. 279 ; 18 L. J. Ex. 163. (t) [A plea, justifying a trespass on the ground of a right of way, will not protect Ben ants, unless it is alleged therein that the privilege of passing in the way extends to them. Bartlctt v. Prescott, 41 N..H. 493, where see a form of plea, which was held defective on demurrer, because this allega- was not made.] PLEA8 IX TOBT. WA1 S. and brook in and upon the said close of the plaintiff, and for that : right of going on fool and with cattle in and upon and over th the plaintiff to the said watering-place and brook al all tim< the more convenient occupati I' the Baid land of the defendant, said times when [^c], the defendant broke and entered the said ■ plaintiff tor tin- purpose aforesaid, and because at tin- said timet wh( the said fences had hern placed and were then wrongfully in and upon tin- said close obstructing and preventing the defendant from water! i cattle at the said watering-place and brook, the defendant necessarily th down, and removed, and damaged, and injured the said fences for the pun of exercising, and. in exercising the Baid rights doing no unnecessary dam in that behalf [which arc the alleged trespasses]. 5. Replication traversing a Right of Way, ( u > That the occupiers of the said land did not for twenty [or "forty," case may be~\ years before this suit enjoy as of right and without interruption the alleged way. 6. Replication (to a Plea of Forty Years' Enjoyment of a Way) the Plaintiff iv as a Tenant for !/ n B ner,4 M. & W. 496; England v. Wall, I" Tickle v. Brown, mipra.] M. & W. 699; Clayton v. Corby, 2 Q. B. 740 PLEAS IN TORT. WAYS. Obs. son. 1 R. &P. 371) or by deed. Campbell v. Wilson, 3 East, 294; Senhouse r. Christian, 1 T. R. 561. Where there is reason to fear that a prescriptive right of way has been extinguished by unity of seisin, it would then be advis- able to insert a plea claiming by non-existing grant. Form, evidence, &e. Livett v. Wilson, 3 Ring. 115; Plant v. James, 5 R. & Ad. 791 ; 3 Chit, Plead. 7th ed. 39.:. See ante, 73.5. 736, Obs. per Parke R.; Harr. Ind. tit. Way; Livett v. Wilson, 3 Ring. 115; 1 Saund. 323a; Plant v. James, 5 B. & Ad. 791; 4 Ad. & E. 749, 765; Rlewett v. Tregonnintr, 3 Ad. & E. 554. Bight of way under a local act and award. Logan v. Rurton, 5 R. & C. 513; Rasset v. Mitchell, 2 R. & Ad. 99. That the defendant at the said time when [<^rc], was seised in fee of a close called , and before the said time when [^e.], by a deed made between E. V., who was then seised in fee of the said close, now of the plaintiff, and G. II., who was then seised in fee of the said close called , whose estate therein the defendant had at the said time when [4* e -]" which deed has been lost or destroyed by accident, the said E. F. granted to the said G. IT., and to his heirs and assigns, a way on foot, and with cattle and carriages, from a pub- lic highway over the said close now of the plaintiff to the said close called . and from the said close called over the said close now of the plain- tiff to the said public highway, at all times of the year, for the more convenient occupation of the said close called , and the defendant being by virtue of the said grant entitled to such way as aforesaid, committed the alleged tres- passes in exercise of the said right of way. (x) 8. Might of Way claimed by Immemorial Prescription. Obs. — Forms, Arlett v. Ellis, 7 R. & C. 346; Tapley v. "Wainwright, 5 R. & Ad. 395; and see, in general, 1 Saund. 339-353; 2 Saund. 1, 324. It is neces- sary in this plea to deduce title from the freeholder, or to justify as his ser- vant, and then to prescribe in a que estate, that is, in right of the freeholder's " and those whose estate he had." See Attorney General v. Gauntlett, 3 Y. & J. 93. Refore the prescription act, a right of way or common, or other easement or profit, to be enjoyed or taken in the soil of another, could not be established without showing that it existed from time immemorial, or, in pleading language, "from time whereof the memory of man runneth not to the contrary " (being in legal contemplation the whole period of time from the reign of King Richard the First; see the recital in the act). It is true that the courts held that proof of twenty years adverse user or enjoyment of the easement furnished a presumption that the right had existed from time im- memorial. Still this presumption was subject to be rebutted by evidence that at any one given period of time since the commencement of legal memory the right had become extinguished, as by unity of seisin of the several properties in the same person, and thus the continuity of enjoyment from time immemo- rial had been destroyed. See Stamford v. Dunbar, 13 M. & W. 822. The above plea is therefore, upon a traverse thereof, always open to be defeated at the trial, by such proof. It was to obviate this difficulty that it became the practice to plead a right of way by what was termed a " non-existiny grant." Supra, form 6. That at the time of the alleged trespasses he was seised in fee of land, and he and all those whose estate he then had therein from time immemorial en- joyed a way on foot and with cattle and with carriages from a public highway (x) Before the common law procedure act, ably be held sufficient to state the deed to 1852, it was necessary to give the date of be between a certain person and a certain and parties to the deed; see Hendy <•. Ste- other person. [A like plea by a tenant, phenson, 10 East, 55; Blewett v. Tregon- Bailey v. Stevens, 12 C B. N. S. 91.] ning, 3 Ad. & E. 554 ; but it would now prob- PLEAS IX TORT. WAYS. 7 1 1 over the said land of the plaintiff to the Baid land of the defei the said land of the defendant over the said land <>f the plaintiff I public highway, at all times of the year, for the more con veal of the said land of the defendant, and the alleged trespa defendant of the said way. 9. Right of Way of ZVS eessity. Obs. — See Forms, &c. 3 Chit Plead. 7th ed. 895; Harr. Ind. Way, XII. S and 2 Bine. 76.; Proctor v. Hodgson, 10 Ex. 824; Pinnington G ind, 9 I forms in cases there cited. Buckby v. Coles, 5 Taunt. 311; Holn Pearson v. Spencer, 1 B. & S. 571; Eastern Counties Ry. Co. v, \> C. B. N. S. 821. [A right of way of necessity is an incident to a grant of land, where there is no access to the land granted except over remaining land of thi ■where there is no access to remaining Land ol the grantor i he Land granted, l Wins. Saund. 323 (C); Ilowton r. l-'icarson, B T. B Pin- nington o. Galland, 9 Ex. 1; Brigham v. Smith, 4 Gray, 297; Seymour Lewis, 13 N.J. 444; White v. Bass, 7 II. & N. 782; Collins v. Prentice Conn. 39; Brice v. Randall, 7 Gill & J. 849; Mar-hall v. Trumbull, Conn. 183; Kimball v. Cocheco R. R. 27 X. II. 449; Nichols p. I Pick. 102; Wissler v. Hershey, 23 Penn. St. 883. Mere from the relation of grantor and grantee does nm give any right of way over the land of another. Billiard v. Harrison, I M & Sel.387; and Bee Pro Hodgson, 10 Ex. 824; Tracy v. Atherton, 85 Vt. 52. And thi right of way of necessity must show how it arises by way of grant. Bullard v. Harrison, 4 M. & Sel.387. This right of way continues onlj bo long as the necessity lasts, and is extinguished by the grantor or grantee obtaining to the land by other ways; Holmes v. Goring, 2 Bing. 76 ; Pierce Is 18 Conn. 321 ; Viall v. Carpenter, 14 Gray, 126; Nichols v. Luc< k. 102; Gayetty v. Bethune, 14 Mass. 49; Dodd v. Burchell, lEttl 122; Collins v. Prentice, 15 Conn. 39; White v. Leeson, 5 H. & \. 53; hence the plea must show a necessity, by reason of no other way at the time of the tr pass. Holmes v. Goring, 2 Bing. 76; Proctor v. Hodgson, 10 Ex. B24; I etty ». Bethune, 14 Mass. 49; M'Donald v. Lindall, S flawle, 192. I that the way of necessity is the way most convenient for the pur Morris v. Edgington, 3 Taunt. 24. As to the selection of the course in which the way of necessity is to pass, see Nichols v. Luce, 24 Pick. 102; 11": t7. Seely, 19 Wend. 507; Capers v. Wilson, 3 McCord, 170; Smiles v. II tings, 24 Barb. 44; Pearson o. Spencer, 1 B. cS: S. 584. A right of « 11 I be Implied by reason of necessity, upon the devise of Lands in several par- cels. Pearson v. Spencer, 1 B. & S. 571; 3 ll>. 761. 9a. Plea of Private Bight of Way of X. a tsity. That at the time of the alleged trespass he was Beised in fee of a close called -, next adjoining to the said close of the plaint ill'; and J. K.. whoi in the said close called the defendant then had, was at the time of the making of the conveyance hereinafter in. mi d Beised in fee as well of the said close of the plaintiff as of the Baid close called -. and the Baid J. K. being so seised of the said closes respectively, before the allegi granted the said close of the plaintiff to L. M. and his heirs and ti and at the time of the said grant the Baid J. K. had not, nor had he at any time afterwards, nor had the defendant, or any other person bavin- t' the said J. K. in the said close called . at any time any « ij the said close called otherwise than from or to a public highway said close of the plaintiff; and by reason thereof the said J. K. and persons having the estate of the said J. K. in the said dose railed 742 PLEAS IN TORT. WAYS. the said defendant so having the estate of the said J. K. therein as aforesaid, from and after the time of the said grant necessarily had and of right ought to have had a way on foot and with horses and carriages from the said public highway over the said close of the plaintiff to the said close called , and from the said close called over the said close of the plaintiff to the said public highway, at all times of the year, for the necessary use and occupation of the said close called , the same way being the nearest and most con- venient way over the said close of the plaintiff to the said close called , and the alleged trespass was a use by the defendant of the said way. Like pleas. Howton v. Frearson, 8 T. R. 50 ; Buckby v. Coles, 5 Taunt. 311 ; Holmes v. Goring, 2 Bing. 76. Plea of a right of way of necessity cre- ated by devise of the tenements to separate devisees, there being no way to the one except over the other. Pearson v. Spencer, 1 B. & S. 571 ; 3 lb. 761.] 10. New Assignment extra viam. (j/) Ante, 673. 11. Replication to a Plea of Twenty Years' Enjoyment of a Way, that it was enjoyed by Leave and License of the Plaintiff extending over the Whole Time. Obs. — See Colchester v. Roberts, 4 M. & W. 769; [Bennison v. Cartwright, 5 B. & S. 1.] A parol license must be replied to a twenty years' plea, if it cover the whole of that time, because under such a license the party may be said to enjoy the way " of right and without interruption " for the jK-riod mentioned in the plea; and therefore the replication must be in confession and avoid- ance. Tickle v. Brown, 4 Ad. & E. 383. But if the license has been renewed from time to time, on applications by the defendant to use the way during the twenty years, then since every time such applications were made the occupiers admitted that the former license had expired, and that the continuance of the enjoyment was thereby broken, that may be shown on a simple traverse of the twenty years' right. Monmouth Canal Co. v. Harford, 1 Cr., M. & R. 614 ; [Bennison v. Cartwright, 5 B. & See an instance of a replication in confession and avoidance falling within this principle, and showing that the defendant could not have exercised the right by custom, prescription, or grant. Kinlock v. Neville, 6 M. & W. 795. But the Ucense must be in writing to defeat the forty years' plea. See 2 & 3 W. 4, c. 72, s. 2; Tickle v. Brown, xu/tra. Under a simple denial, there- fore, of that plea, the plaintiff may show that the previous enjoyment of the way was by parol license. Beasley v. Clark, 2 Bing. N. C. 709. 12. Plea of Justification under a Public Might of Way. (;z) That before and at the time of the alleged trespasses there was and of right ought to have been a certain common and public highway (a) into, through, over, and along the said close, for all persons to go, return, pass, and re-pass, on foot and with horses and other cattle and carriages, at all times of the year, (y) If it i3 alleged that the acts com- (a) The plea for a footpath will be simi- pluincd of were not done in exercise of the lar, substituting the word " footway " for right set up, a new assignment is necessary. " highway," and omitting the averments A joinder of isene would merely deny the de- about horses, cattle, and carriages, &c. A jendant's possession and the existence of the simple denial of this plea, would let in evi- right See Eastern Counties Ry. Co. t\Dor- dence that the way had ceased by the award ling, 28 L. J. C. P. 202 ; 5 C. B. X. S. 821. of inclosure commissioners under a local [z\ Pipe v. Fulcher, 28 L. .1. (,>. B. 12; statute. Williams v. Wilcox, 8 Ad. & E. El. & El. Ill; Petrie v. Nuttall, 25 L. J. Ex. 331. 200 ; 11 Ex. 569. PLEAS IX TOUT. \V1T.\; at their free will and pleasure ; when-fore the defendant, havii use and using the said way, committed the alleged trespasser. (>>, [13. Plea of a Public Highway justifying the Rem That at the time of the alleged trespasses there was and have been a common and public highway over the Baid land of the i for all ])ersons to go and return, on loot and with horses, cattle, and at all times of the year, at their free will and pleasure; and the del having occasion to use the said way, then entered into and upon tie- laid of the plaintiff and along the said highway, then using 1 1 * • - same a, be lawfully might for the cause aforesaid, and because the Baid [wall] had been and then was wrongfully in and across the -aid highway, obstructs and preventing the convenient use thereof, the defendant necessarily pulled down and destroyed the said [wall] lor the purpose of using the said highv doing no unnecessary damage in that behalf, which are the alleged treepa Like pleas. Webber v. Sparks, 10 M. & W. 485 ; Elwood v. Bullock Q. B. 383; Bracegirdle v. Peacock, 8 Q. B. 171 ; Dawee v. BawtLns, 8 C B. N. S. 848; Morant v. Chamberlain, 6 H. & N. 540. Plea of a public right of way along a navigable river, justifying the destruction of a weir fixed in tit' channel. Williams v. Wilcox, 8 Ad. & E. 314. A like plea justifying passes on a landing-stage of the plaintiff. Eastern Counti* ^ 1 I , Dor- ling, 5 C. B. N. S. 821.] 14. Replication to a Plea of Right of Way justifying the & n Obstructions, that the Obstruction removed was a Booth which Plain- tiff had erected at a Fair under a Custom, and thai in ■ n ding the Booth the Plaintiff had left sufficient Space for the Public I Elwood v. Bullock, 6 Q. B. 383; Webber v. Sparks, 10 M. & W. L85; Dawes v. Hawkins, [8 C. B. N. S. 848;] see Morant v. Chamberlain, [6 H. & N. 541. \_Replication of a prescriptive right to place goods upon the public Morant v. Chamberlain, 6 H. & N. 541.] WEIRS. Plea that a Weir was wrongfully erected across a fl BtW, and Laiv. Williams v. Wilcox, 8 Ad. & E. 314. WINDOWS. See " Ancient Lighi Y\ ITNESSES. Obs.- See the declarations against a witness for aot obeying ajjbpcei and law, &c. in the notes. Forms of pl< B tteley o. M I (6) If the removal of an obstruction is to be justiti.-i - 744 PLEAS IN TORT. WITNESSES. Obs. C. 405. Not guilty would put in issue only the default or breach of duty, i. e. the non-attendance alleged, and not the inducement of the preliminary proceedings. It is necessary to traverse specially the allegation in the dec- laration, that the plaintiff had a good cause of action, and that he could have proceeded to trial ■without "the testimony of the defendant, otherwise those facts will be conclusively admitted. Needham v. Fraser. 3 D. & L. 190; 1 C. B. 815; ante, 634, note (p). The defendant might also traverse any other of the material allegations in the declaration, as that the plaintiff pros- ecuted out of the said court the said writ of subpoena, that he caused to be shown or made known such writ to the defendant a reasonable time before, &c; see Barber v. Wood, 2 Moo. & R. 172; ante, 633, note (/); that he paid a reasonable sum for his costs and charges, &c. ; ante, 634, note (o); that the defendant's testimony was material, &c. ; ante, 634, note (q); or in the case of an action for not attending on a subpoena duces tecum, he might deny that he could have produced the documents, &c. or that they were material. Plea that the Evidence of the Defendant was not material or necessary. That the evidence and appearance of the defendant were not material on behalf of the plaintiff on the said trial, as alleged. INDEX. If. B. — THE ROMAN TYPE REFERS TO THE FORMS GIVEN IN THE TETT AND NOTES, AND TO! ITALIC TO Til* NOTES AND OBSERVATIONS. ABANDONMENT OF CONTRACT. See Rescinded Contract. ABATEMENT. Form of declaration after plea in, 5. Plea in, 16, 268. Replication thereto, 17. Time for delivering, 16, note (e). prayer of judgment in, 17, note (;'). entry of cassetur breve to plea in, 17, note (£). plea in does not admit or deny cause of action, 268. who should sue where interest in contract several, 268. where joint, 268. misjoinder of plaintiffs , 268. amendment after misjoinder, 268. non-joinder of plaintiff, 268. if objection appear on face of pleading, 269. amendment after non-joinder of plaintiff*, 269. misjoinder of defendant fatal unless struck out before verdict, 269. amendment after misjoinder of defendant, 269. non-joinder of defendant, plea in abatement, 269. plea in, must be accompanied by affidavit, 269. Statutes relating to pleas in abatement. 3 §• 4 W. 4, c. 42, 268. Common law procedure acts , 1852, 1854, 1860, 268. Pleas. 1. Plea that a person jointly liable with the defendant is not sued with him, 270. la. Form of answer in abatement in Massachusetts, 270. 2. Affidavit of truth of plea in abatement, 270. 3. Replication that the defendant is Bolely liable, 271. 4. Replication that the party not sued is resident out of the jnrisdictioo "f the court, 271. 5. Replication to a plea of non-joinder that the other contractor i- l certi- ficated bankrupt, 271. 6. Plea that a bill of exchange was accepted by the defendant jointly another, 271. 7. Plea by assignee of a lease that the lease vested in another jointly •■•■ the defendant, 271. 8. Plea of the non-joinder of a co-execntor as a defendant, -"-. 9. Plea of the coverture of plaintiff, 272. 9a. Form under Massachusetts practice act, 272. 10. Plea of the coverture of defendant. 272. 10a. Another form, 273. 11. Replication that defendant is QOt married. 27;?. 12. Plea that another act inn is pending for the same demand, -■ 13. Plea by an attorney, privilege of being sued in another court, 273. 746 INDEX. ABATEMENT. — Continued. 14. Replication that the defendant is an attorney of the court in -which he is sued, 274. 15. Plea that plaintiff is an alien enemy, 274, 297. ABSTRACT. count for not delivering abstract of title according to conditions of sale, 255. ABSTRACT OF PLEADINGS. must accompany summons to plead, 21, note (/). ABUSIVE LANGUAGE. See Trespass to Person. ABUTTALS. See Trespass, 609. ACCEPTANCE OF GOODS SOLD. See Sale of Goods, 27, 28, 234, 459. ACCEPTOR <>!•' BILL. Set Bills. ACCIDENTS. See Carriers, 94, 487; Insurance, 176; Negligence, 564, rt70. ACCESS. See Ways, 631. declaration for obstructing plaintiff's access to his house on a river, 582, form 4. to his wharf, 629, form 7. ACCOMMODATION BILL. See Bill, 338 et seq. count for not indemnifying against, 152. plea that bill was given for accommodation, 338, 339. ACCORD AND SATISFACTION. See Pleas, 288. plea of, in tort, 636. plea of, by one of several defendants, 636, note (d) ACCOUNT. action of, 38. that defendant never was bailiff, 294. that he has accounted, 294. defendant cannot pay money into court, 294. must be commenced and sued within six years, 294. ACCOUNT STATED. when common count on, lies, 32, obs. 8. cause of action is agreement of parlies to pay the amount due on account- ing, 34, note (A). this amount may be made up of various items, 34, note Qi). evidence to support this count may be partly in toriting, partly parol, and partly in each, 34, note (h). as to bill of particulars under this count, 34, note (h). effect of never indebted 294. where a special count added to, but particulars disclose but one cause of action, 294. where there is a separate cause of action, special plea desirable, 294. Common count on, 34. ACCOUNTANT. See Agent, 39, 477. ACKNOWLEDGMENT. of debt, to take it out of statute of limitations, 433. what sufficient, 433. See Limitations. in writing, 433. qualified and conditional, 433. by infant, 434. to whom to be made, 434. See Limitations, Statutes of; Part Payment; and Payment. iCTION. plea of action pending, 273, and note (w). See Pendency of Former Action. ACTION, NOTICE OF. See Notice of Action, 674. ACTIONS. personal, commencement of, 1. by assignees do not abate on death of assignee, 8, note (i). by feme sole does not abate in marriage, 14, note (z). by sole plaintiff does not abate on death, 15, note (6). several forms of, abolished, 27. different forms may be joined, 27. exceptions, 27. 1X1 •IX. ACTIONS. — Continued, of account, 38. seven// counts on same caun of, not aUov • (b). cause of not admitted or denied by plea in abatt m nt, form of commencements and conclusions of declaraii of i \>: ACTOR. counts by, for salarv, 212. ACTS OF PARLIAMENT. See Statute ADDRESS. necessary in hill to charge acceptor, 7:>, aote (k). ADJOINING HOUSE. See Support, 604. ADMINISTRATION. LETTERS OF. prqfert of. no longer necessary, 7, note (_/"). ADMINISTRATOR. Sec Executors. commencement and conclusion of declaration by and against, 1 ADVERTISEMENT. See Reward, 283, 459. ' ADULTERY. See Sale of Goods, 459. AFFIDAVIT. must accompany plea in abatement, 269. AFFRAY. See Trespass. AGENT. See Account, 38, 294; Attorney, 304; Baii.i i . 67, SI I \ Cabri 94,355,487,639; Sale of Goods, 459; Mastkb akt> Servant, 138; Work, 476. when agent may sue on a quantum meruit, •'!*, ii effect of now assumpsit in actions against, 295. in actions by, on common counts, 295. actions of tort will lie against, for negligi run . 17 7. facts stated in declaration must show a duty, 477. effect of not guilty in actions against, 637. lien of, 730. how far may give credit, on sales, 42, note (z). liability for giving credit, when authorized to sell ■ IS, note (z). effect of usage, 42, note (z). cannot be sued as principal on the contract. 45, note | impliedly warrants, he has the authority he assumt 8, 15, i> liable to innocent third parties if he has not, 45, note l in a special action on the cast . I 5, note (<•). in tort, if he fraudulently misrepresents the extent of his at. 45, note (c), 520. damages in such an action. 16, note (d). mode of stating, 46, note (d). how principal affected by false representations of, ".20. Counts by and against. In contract. common count for commission, 33. 1. By agent for commission, 88. indebitatus count for del credere agent's commission, declaration by agent against principal f<>r not indemnify a^ent against bill which :i^ plead, plea of alien enemy not a" action of trespass by alien, 790. Plea in abatement. that plaintiff is an alien enemy. 297. ALTERATION OF WRITTEN COX lit ACT. defence of, under general issue, 298. when it must be special/// pleaded, 298. contract rendered void by, 298. as to alterations of hills if exchange. See post, BlLl - "i Ex< it \s as to effect on surety of alteration of contract helm, en creditor and principal, 399^ note (q). addition, to promissory note expressing no time for pa demand," 298. as to alteration of guaranty. 298. effect of alteration by stranger, 298. if made without fraud, with <<>ns.n< if party claiming un where original contents ofth docutm >' ca effect of wilful alteration in material part, by party claiming under ;!<■ ment, 298. made by accident or mistake, 299. seal torn off by child, deed destroyed by accident, . where all parlies consent to all' ration, 299. burden of proof , and presumptions in refereir Pleas. that a written contract was altered and made void, replication that deed was altered by insertins; amount, that, agreement was altered by affixing a seal, 299, note (a). that charter party was altered by inserting material w 0- other forms, 299, note («). change in salary, 399, QOte (7). 750 INDEX. ALTERATION OF WRITTEN CONTRACT.— Continued. change in duties, 399, note (o). in tenure of office, 399, note (q). AMBASSADOR. cannot generally be sued for a debt, 299. secretary acting as charge' d'affaires, 299. goods of, privileged from distress, 504. distress of goods of servant living apart from, 299. Plea. that defendant is ambassador, 300. AMENDMENT. of declaration, 34, note (i). of declaration after non-joinder and misjoinder, 269. of pleadings, 3. See Pleas. by adding or striking out parties, 3, 268, 269. in Massachusetts and New York, 3. AMENDS. See Tender of Amends, 696. ANCIENT WINDOWS OR LIGHTS. when action lies for obstruction of, 479. twenty years' 1 enjoyment may give indefeasible title, 479. interruption must be acquiesced in for one year, 479. general allegation of right, 479. proviso as to infants, 479. American law on this subject, 479, 480. abandonment of privilege, 480. acts amounting to, 480. when window enlarged without loss of light, 480. replaced by one of the same size, 480. must not exceed old limits, 480. vendor and vendee, 481. license to open windows, 481. what is sufficient cause of action, 481. what amount of damage must be sustained, 481. injunction to restrain obstruction, 529. effect of not guilty, 635, 636. right to, depends on statute, 679. Counts. 1. For obstructing plaintiff's windows, 482, and note (e). 2. By a reversioner of a house against a railway company for erecting a station whereby his ancient lights were obstructed, 482. Pleas. 1. Denial that plaintiff was possessed of the house, 637. 2. Denial of the alleged right to the light, 637. 3. Plea justifying under an act of parliament, 637. 4. Plea on equitable grounds that plaintiff acquiesced in the building causing the obstruction, 638. 5. Plea justifying an entry on the plaintiff's land to remove an obstruction to the defendant's ancient lights, 638. ANIMALS. See Dogs, 648 ; Mischievous Animals, 561, 669. ANNUITY. Count for arrears of, 47. on a covenant in a deed of separation between husband and wife, to pay an annuity to the wife's trustee, 48. General issue, 300. Count by an executor of an attorney for the carelessness of the latter in the investigation of the security for an annuity purchased by the plaintiff's tes- tator, 62. APOLOGY. See Libel and Slander, 658. plea of, to action against newspaper, 540. APOTHECARIES. when debarred from suing, 48. medical acts, 47. proof . APPORTIONMENT OK ItKNT, 687, note («). APPRAISER. .See Auctioneer. pica that plaintiff was not duly licensed, '100. APPRENTICE. See Master and Servant. form of indenture, 49. father of, executing deed is liable for violation of its provisio who should be parties in suing on the deed, 49. defences of master, 50. of father, 50. Counts. by apprentice against master. 1. For not instructing or providing for apprentice] 50. like counts by father of apprentice, 50. 2. By master against father of apprentice on the indenture, like counts by master against father, 51. count against surety a party to the indenture, for non-payment of pre- mium, 51. by an apprentice against his master, 49. Pleas. 1. General issue, 285. 2. That up to certain time defendant did teach, and that the apprenl without leave, quitted defendant's service, and did ii"t return, .'■ 2a. That an apprentice would not lie taught, ■><)0. 3. Plea of dissolution of partnership of plaintiff's, .'>00. APPROPRIATION OF PAYMENTS. See Paymi wts. by party paying, ivhen, 445. by creditor paying, ichen, 445. leqal appropriation on distinct accounts, 4 1.",. ARBITRAMENT AND AWARD. See Award, 68, 808. Count on arbitration bond conditioned to perform tin- award. .". |. Count for breach of stipulation in contract to refer to arbitration, &C. 51. for refusing to choose an arbitrator, 51. for refusing to appoint a valuer. &c. 5] . 52. for revoking the arbitrator's authority, 52. ARBITRATOR, 51. count by an arbitrator for fees, 33. a barrister acting professionally cannot recover, except on a lay arbitrators, 51. in the American states arbitrators and referees I same right I for their services as others, 51. if there are several referee.-:, a separate action lies for each, 51. against whom to bring action, 51. ARREST. See Malicious Arrest, 550; Sheri Trespass ro l'i r- son, 610. what constitutes an arrest, 598, note (x). count against sheriff for carrying plaintiff to prison within tn after arrest on mesne process, 52. against a bailiff for extortion, 52. against a sheriff for refusing to accept bail, 52. ARTICLES OF THE PEACE. declaration for maliciously exhibiting, •• ARTIFICER. lien of 729. ASSAULT. See Trespass to Person, 610. payment into court may not be pleaded to, 417. ESDEX. ASSET- 5 Exec - ASSIGNEES S Bankruptcy. 312 : Set-off. Trover. 621, 726. I. Of a bankrupt. See Bankruptcy. cornm-. ... of declaration by. 8. action does not abate on death of. S. note (f). cannot be declared against as assignees, 8, note (i). 52. nor jo- "2. when official must sue, B, not i). wh- ional may sue. 8. note (k). zracter as admitted, if not specially denied, 8, note (I). 312. joir. 'vent partners in action by. 9, note (m). :h bankrupt might ha':-:. 52. under U - :? bankrupt act . 52. to tchat time tide of assignee- 52. vesting of cause of action in assign- ' .. pr_ . I Si "2. under U States bankrupt a .ees, by direction of court, may com- pound or settle cor - i debts or demands and submit to arbitration, 52. :ts not necessary, but leave of court, 8. note (f), 52. lee mot necessary in the U x ,52, note (j). provisions of bankruptcy law consolidation ■■• 13 Vict. c. 106, 312. when they may sue in trespass, 711. guilty, 636. "25. C. 1. Declara: Ear goods £ bankrupt, alleging: tbe debt to bave accrued to bim before tbe bankruptcy, and account stated tbe assign* • ' - - - .." .ebt to be payable to tbe assignees for a con- . : _ the bankrupt. 53. 3. By _ -.on causes of action ar _ "he bankruptcy. 53. 4. Bj the assignees fa bankrupt and tbe solvent partner of tbe bank- 5. I . : a bankrupt, for not giving an acceptance for goods the bankrupi: 6. By a -- . nted by tbe bankrupt, to deliver -?a on special ter 7. For not del: ring railway shares to assignees, tbe defendant having c-: " sell them to the banknr ■-._..- ract made by the bankrupt, and adopted by ankruj P. B; _ _ s of a bankru: 1. Denial that the plaintiffs ar^ assignees. 313. 2. 2 be given with the above plea, 313. 3. Plea to an ::r money had and received to their use, that tin lant pa: :he money to bona, fide creditors :he bankrupt by his command, without notice of any previous ■ of bank: il4. : to a bankrupt after, but without notice of, an act bankruptcy, and before pet; I. 315. - rig oankru: _ .ed the debt • a third person before bankr 15. n. ' ■ ■ tor goods sold by ir. 55. the like or. can n accru' ISS1 - »F A BOND. SeeBo [GNEE OF LESSOR AND LESSEE. See Landlord and Tenant. LSSIGXMEHT. of pate INDKX. ASSIGNMENT. — Continued. new assignment, 439-671. of lease 42'). ASSUMPSIT. See Contract. special form of action in, abolished, 27. ATTACHMENT OF DEBT. provisions of common law procedure act, 301, 465. what may be attached, 302. effect of the order of attachment, 302. Pleas. 1. Plea to a declaration against _ r ;irni»hee, 303. 2. Plea that plaintiff (the jud_ reditor) took the judgment-debtor in execution, 303. 3. Plea of payment to a judgment-iTcditor of plaintiff, 303. 4. Plea of foreign attachment in the lord m;i\ ATTACHMENT, FOREIGN. See Attai hmim oi Dbbt. ATTAINDER. See Felony. ATTORNEY. See Lawyers. commencement, §*c. of declarations by, 9. interest on bills of, not prima facie payable, 31. not bound to continue client's suit. o~>. liable to action for wrongfully abandoning suit, ■ must show why he has abandoned suit, 56. may recover for services, though he has abandoned suit, when, 56. refusal by client to advance finds. 5.~>, 'j6. statute of limitations running against bill of 56. cannot recover bill, if clerk did business, 56. when can recover only money out of pocket, 56. employment of by two persons. 56. firm suing when partners in different courts, 56. employment by corporation, 56, 59, note («). by and against guardians. 56. in American states, regularly admitted, presumed to have authority, till trary is shown, even in behalf of corporation, 56. lien of on a judgment, 56, 57. general lien of, 731, and note (h). cannot recover if proceedings have become wholly useless, through his n gence. 57. promise to use reasonable skill implied, 5 7. does not engage for success, 57. liable for gross negligence, 57. for breach of professional confidence, 59. for loss of client's papers, 59. implied duty, 57. not liable for mere error of judgment in doubtful cases, 58. or for mistake in nice point of practice, 58. instances of negligence for which he is liable, 58. form of action against. "' N . when liable for negligence, 57, 58, W3. summary remedy against in some cases, 483. general employment as attorn power to defend, 58 retainer under corporate seal, when necessary, when not, 59, note (u). when he can compromise. 58, 59. and 4S3. note (m). by American author bill not delivered a tnonth before action, SO I. never indebted, 304. maintenance and champerty mu riaUjf pleaded, 304. what amounts to maintenance. S07, note (/). non assumpsit in action for negligence, 305. stamped certificate under act. 305, note (A). VOL. II. 4S 754 INDEX. ATTORNEY.— Continued. when client bound by acts of, 483. effect of not guilty in action against, see Agents, 637. Counts by and against. In contract. 1. By an attorney, for his bill of costs for prosecuting or defending suits, or for conveyancing, or otherwise, 59, and note (u). 2. General count against an attorney for negligence in conducting an action at the plaintiff's suit against a third person, 60.. A like count for not instructing counsel to appear at the trial, &c. 60. A like count for negligently conducting a chancery suit, 60. A like count for neglect in recovering the amount of a bill deliv- ered to him, &c. 60. 3. General count against an attorney for negligence in defending a cause at the trial, 61. 4. Against an attorney (employed to conduct an action against an- other attorney for negligence), for carelessly omitting to adduce proper evidence, whereby plaintiff was nonsuited, 61. 5. Against an attorney, for carelessness in investing plaintiff's money upon an insufficient annuity security, 61. 6. Against an attorney, for suffering his client to execute an unusual covenant on assigning a term, 61. 7. Against an attorney, for not taking care of his client's papers, 61. 8. Against an attorney, by trustees, for not investigating security upon which they were about to advance trust-funds, and for not pre- paring sufficient securities, 61. 9. Against an attorney, for not taking proper measures to obtain a prisoner's discharge from custody, 61. 10. By an executor against the executor of an attorney, for the care- lessness of the latter in the investigation of the sufficiency of the security for an annuity purchased by the plaintiff's testator, 62. 11. Against an attorney, for not paying over to his client money levied under a judgment, 62. 12. Against an attorney of plaintiff, for misrepresenting to the sheriff the address of the debtor, 62. 13. Against an attorney, for compromising after judgment, 62. 14. Against an attorney, for compromising an action contrary to the directions of the client, 62. Count for neglecting to enforce a judgment, and accepting a smaller sum in satisfaction contrary to plaintiff's orders, 62. In tort. 1. Against an attorney for letting judgment go by default after in- structions to defend, 483. 2. Against an attorney for compromising contrary to the directions of his client, 483. 3. Against an attorney for negligently conducting a suit in chancery, commenced before he was retained, whereby the bill was dis- missed, 484. 4. Against an attorney for disclosing to a third person a defect in his client's title, 484. 5. Against a person who was plaintiff in a former action and his attor- ney for not releasing plaintiff (defendant in former action) out of prison after satisfaction of debt and costs, 484. 6. By the sheriff against an attorney for misrepresenting the address of a debtor, whereby the sheriff levied on the wrong person, 484. Pleas. In contract. 1. Plea to an action on an attorney's bill, that the plaintiff had taken out no certificate, 305. 2. Plea that the bill was not delivered a month before action, 305. 3. Plea that the plaintiff was never admitted, or that he was no' enrolled as an attorney, 306. INDIA'. ATTORNEY.— Continued. 4. Replication thai the plaintiff did deliver a bill, 5. Plea of maintenance to an attorney'! bill, S07. 6. Plea to an action againsl an attorney for negli the negligence, 307. 7. Plea by an attorney, privilege of being sued in anoU Plea of lien by an attorney, 781, form AUCTIONEER. See Agents, 295. when liable for < goods, 10, note ( i )• mail sustain action for goo Is, or the pria of tin m ha* no authority to take bill of> • )■ us- a stakeholder, for deposit, 62, note (• ). cannot sell on credit, unless specially authorized, 12, noti agent authorized to sell for rash only, becom \ m ( liable \J credit. 42, note (z). connt against for delivering goods withouj being paid for them, for selling on credit, 12, and note | by, for his bill, 38,62. against, for knocking property down to the owner, 63. against, who promised to be responsible tor proceeds, 68. against the purchaser, on the conditions of Bale al an auction, for not i "away the lots purchased, 03. AUTRE ACTION PENDANT. Plea of, 273, form 12. See PENDENCT of FORMER Action. AVERAGE LOSS. See Insurance. AVOWRIES. See Distress; Landlord and Tbnaht; ft VIMYXM. AWARD. remedy for non-performance of, 63. when on the bond, 03. assigning of breach, 63. indebitatus count, when sufficient, 63. realms for declaring specially on the award, 63. for revoking arbitrator's power, 63. non assumpsit, 3u8. never indebted, 308. inhere special plea necessary, 308. Sere fcfaJL *»» — / « *tf '•"■'-• ' '° 8 ' power of arbitrator not revocable ml/tout leave, .108. C Tupon an award made in pursuance of a submission where the time for making the award was enlarged, la Form prescribed in Massachusetts, 65. s. ^£3E£3Si2i*-- i i i*^-**- of sale, 65. t a ri^r £*£ ?£?&«**>> ' •■ ■- the defendant, 66. 6. Indebitatus eount on an award, 7. Indebitatus count on an umpirage, I Count on a reference to a single arbitrator, W. 2 \1SS^^X^STZ^m i ■ *« -r pointed by them, 66. against executors, 06. Pleas. SSteS-3?^S<-»-p-*- >»•* general damages, 809. replication to last plea, 310. 756 INDEX. BAGGAGE. See Luggage. BAIL BOND. non est factum, 310, note (c). declaration on, 67. Pleas. 1. Plea, non est factum, 310. 2. Plea, that there was no writ in the original action, 310. 3. Plea, that the bond was not assigned by the sheriff, 310. 4. Plea, that bail was put in and perfected, 310. 5. Replication thereto, nul tiel record, 311. 6. Pleas to a bond given under 1*& 2 Vict. c. 110, s. 8, 311. 1. No writ of ca. sa. in the original action, 311. 2. That the time for rendering was extended by rule of court to a cer- tain day. before which the render was made, 311. BAIL, RECOGNIZANCE OF. count on recognizance of bail in the queen's bench, common pleas, or ex- chequer, 230. BAILEE AND BAILMENTS. See Agent; Broker; Carriers; Hire; Negli- gence; Trover, 798. Jive descriptions of, 67. declarations may be in contract or tort, G7, 311. effect of not guilty in actions against, see Agents, 637. care to be observed by one who stores goods for hire, 484, note (n). where roof of building fell in and crushed goods, 484, note (n). Counts by and against. In contract. against a bailee for not using care in repairing goods, and for not re- turning, 67. against a bleacher for improperly bleaching and injuring clothes, 68. against a pawnbroker for losing. pledge, 68. against a bailee for not redelivering goods bailed, 69. like counts, in other cases, 69. count on a bailment of a ship for not redelivering it accord- ing to the contract, 69. against a bailee of a horse for not training, &c. according to agree- ment, 69. general count against bailee for not taking care of goods, 69. In tort. 1. Against a hirer of certain carvings for public exhibition for not taking care of them, 484, and note («). 2. Against the hirer of a steam vessel for employing it for an illegal purpose, whereby the master and crew were imprisoned and the vessel detained, 485. 3. By the owner of goods left in the defendant's house, for suffering them to be distrained and sold for rent due to him, 485. 4. Against a printer for pawning paper delivered to him to print on, 485. 5. Against a person intrusted with a dog for losing it, 485. 6. By a hackney driver against the registrar for defacing his license, 485. 7. Against an engraver for using for his own purposes plates engraved by him for plaintiff, 485. 8. Against a gratuitous bailee or lender, 485. 9. Against the defendant for not delivering up a ship's register when required, 486. Pleas. In contract. non assumpsit, 275, 276, 311. that defendant did take due care, 311. to an action against livery stable-keeper that carelessness consisted in tying up horse with an halter at request of plaintiff, 312. that money in defendant's hands was feloniously stolen, 312. that bailor had mortgaged chattel, and mortgagee had demanded it from defendant, 312. INDEX. BAILEE AND BAILMENTS. — Continued. In tort. not guilty, *i38. denial of bailment, (J.'SS. BAILIFF: See Distress; Execution; Notice ok Action-, 874 B Sheriff. plea in action of account thai defendant never was bailiff, 284. BAILOR. See Bailees, 07. BANK OF ENGLAND. See Bankers. BANK-NOTE. See Promissory Notes, 223. BANKERS. right of, to lien, 730. may be sued in contract for breach of tht ir express or implu d contract, tort for their breach of a duty resulting from tht ir < mploynu m. jury may give more than nominal damages, though no ■ note (x). as to the relation between banker and customer, what it is, 70, note (z). when liable for refusing to pay a check, To. note (x). paying forged or altered check, 70, note (x). paying check, without assets, no r< medy against payt < . 70, note (x). Declaration. by customer against banker for not paying check, 70, and i against a banker for not presenting within a reasonable time a cheek on a third party paid in by a customer, 70. against a banker for not complying with instructions as to the disposal i I money deposited with him, 70. against bankers by bearer of note issued by them, 70, 228. for not honoring plaintiff's acceptance payable at his hank, r's. To, note (*). against the Bank of England for not transferrin- stock to plaintiff's ven- dee and pleas, 486. against East India Company for not transferring stuck. 186. for not providing for and honoring customer's check, 186. Pleas. effect of not guilty, 311. forms of pleas referred to, 486. by banker sued for not paying customer's check, 638. of lien by bankers, 731, Form 6. BANKERS' CHECKS. See Checks, 115, 362. BANKING COMPANY. See Public Company. BANKRUPTCY. See Assignees. commencement and conclusions of declarations by assign..* of, 8, 9. creditors' assent not necessary for assignees to bring action, 8, note (i). official assignee of, must be made a plaintiff, 8. note ( / ). when assignee of, dies, action does not abate, 8, note (k 1 ). acts concerning, 8, notes (/) and (k), 316. where order of discharge takes effect afU r action, 31 i . after plea, 317. what provable under bankruptcy, 317. under United States bankrupt act, 317. bankruptcy must be specially pleaded. 817. what plaintiff may show und* r joindt r of issue, 317. what will support the plea of bankruptcy, 81 7. production of certificate qfdischargt ,817. order of discharge only, put in issut h,, the pi 8, 817. nolle prosequi against one of several deft ndantt who plead* bankruptcy, 317, qi ft order of discharge does not release others than the bankrupt i - the samt debt, 317. proof of claim against, is a discontinuance of action, 31B. staying proceedings on proof of claim, 818 deed Uder s. 192, banltruptcy act, iMl.prai * «*>■ certificate of registration no protection unlets deed u ootid, m. must be for benefit of all the creditors, 822, 883. 758 INDEX. BANKRUPTCY. — Continued. , provisions of, must be reasonable, 322, 323, and Addenda. covenant to indemnify against negotiable instruments, 323. loss of debt on breach of covenant not to sue, 323. verification of debt by solemn declaration , 323. cessio bonorum. 323. should contain clause rendering it pleadable in bar, 323. assent of creditor must Id- absolute, 324. secured creditors must be reckoned, 324. provisions of statute respecting an arrangement after adjudication under s. 185 et seq., 325. when assignees of, may sue in trespass, 711. Pleas. 1. Plea of defendant's bankruptcy and order of discharge before action, 318. 2. Plea of defendant's bankruptcy and discharge after action brought, 318. 3. Plea of defendant's bankruptcy and certificate under the bankrupt law consolidation act, 1849, 319. 4. Pleas under the same act, setting out the proceedings, 319. 5. Pleas of defendant's discharge under foreign bankruptcy proceedings, 319. rule as to the effect of a foreign discharge in bank- , ruptcy, 319, note (c). 6. Plea under ss. 164 and 166 of the bankruptcy act, 1861, 319. 7. Similar special pleas under the bankrupt law consolidation act, 1849, 319. 8. Plea of the plaintiff's bankruptcy before action, 319. 9. A like plea under the bankrupt law consolidation act, 1849, 320. 10. Plea to an action by husband and wife, of the husband's bankruptcy after the marriage, 320. 11. Plea of a deed under s. 192 of the bankruptcy act, 1861, 320. 12. Plea of an arrangement under the control of the court, under ss. 211-223 (now repealed) of the bankruptcy act, 1861, 325. 13. Pleas of deeds of arrangement under ss. 224-229 (now repealed) of the bankrupt law consolidation act, 1849, 325. 14. Plea of an arrangement after adjudication, under the 185th and subse- quent sections of the bankruptcy act, 1861, 325. 15. Pleas of a composition after adjudication and last examination under 9S. 230, 231 (now repealed) of the bankrupt law consolidation act, 1849, 327. 16. Plea of a petition for arrangement under the control of the court under s. 211 (now repealed) of the bankrupt act, 1849, and adjudication of bankruptcy under s. 223, and a composition after the last exami- nation under ss. 230, 231, 327. 17. Plea of an arrangement under the 7 & 8 Vict. c. 70, and certificate un- der s. 13 of that act, 328. 18. Replication to a plea of plaintiff's bankruptcy, that he assigned the debt before the bankruptcy, 328. 19. Replication to a plea of the bankruptcy of one of the plaintiffs, that he assigned his share and interest to the other plaintiffs before the bankruptcy, 328. Pleas. Under the old bankruptcy acts. 1. To an action for money paid, the bankruptcy of defendant, and that the money was paid by plaintiff as a surety for a debt of de- fendant before his bankruptcy, 329. 2. To a note, that a prior indorser became bankrupt before the in- dorsement to plaintiff, 329. Replication, that it was received by plaintiff before fiat, without notice of prior act of bankruptcy, 329. good replication, that the interest in the contract or demand in suit was vested, before assignment, in third party, and suit for his benefit, 328, note (7). INDEX. BANKRUPTCY. — Continued. 3. That the plaintiff has been twice a bankrupt, ind thai pay \'<<. in a pound on the second fiat, 4. The bankruptcy of the plaintiff before i 1 i and thai the defendant afterwards paid th< 5. To a bill, that it was accepted by tli<- defendant, in tin- plaintiff, the petitioning creditor, t'» abandon I of the fiat, S29. BARON AND FEME. Se< Husband un> Wife. BARGAIN AND SALE. Se< Saw of Goods. BARRISTERS SIGNATURE. no longer required to pleading, 19, note (/>)■ BATTERY. .See Trespass to mi. Person. BEASTS OF THE PLOUGH. Set Distri BETTING. Set Gaming. BILLS OF EXCHANGE. See Bankers, 70; Promissory Notes, 2- Trover, 799. summary procedure on bills oft tchangi act, 71. action under this act only brought by In ma fide holder, 71. count for original consideration may be added, 7 1 . amendments to indorsements on writ, 71. leave to defend given within twelve days of writ, 71. leave given after judgment, 71. what expenses nun/ be recovered, 72. a check is a bill of exchange under this act, 115. City of London small debts act, 72. form of writ of summons under S. P. Act, 72. memorandum to be subscribed on writ, 72. indorsement on writ before service, 72. indorsement, 72. notice, 73. indorsement after service, 73. non assumpsit and never indebted inadmissible, 330. plea should be confined to particular count, 330. effect of pleading general issue to count on the bill, 330. effect of joining issue on the general issue, 330. when bill only stated as inducement, general issue may be pleaded, 330. objections to stamp may be tab n undt r ph a in a\ nial, bill not duly stamped cannot be given in evidence, 330. payment into court waives objection to stamp, 330. stamps onforeiqn bills, 330. alteration of bill, 330, 331, and 297. any alteration in material part, fatal, 330. as to what is alteration in matt rial part. SSI. when alteration, though in mat( rial part, does not SI. burden of proving that material alteration on face of bill does not r- it void, 331. whether question of time of alteration and assent of adverse party u the jury, 331. when alteration must be specially pleaded, 331. when notice to produce should be given, 332. enactment respecting lost bill, '■'■'■'•2. when lost '.bill is a defence, 332. ... ... acceptor or indorser cannot deny drawing or prior indorsement, 538, note (r;. bills payable at a particular place, 74, notr (o), 884, note staying proceedings in actions again bill cannot be transferred oft, r paym m at maturity, 88 1 . note (»)■ accommodation 7nusl be pleaded. 388, note (< )• want of consideration at every stagt , 889, note (a). transfer of bill for more than £5 aft, r it is dm . 840, note (■). value as well as consideration must h, „. gativt d, SI distinction between absence and failure of constat V >• bill obtained by fraud, 345, note (c). 760 INDEX. BILLS OF EXCHANGE.— Continued. plaintiff in suit on, may recover, if he took it for value and bona fide, though it teas stolen, 345, note (a). effect of gross ntgligence in taking a bill forged or stolen, 3-45, note (a). Counts. On inland bills, 73. 1. Drawer being payee against acceptor, 73. drawing by agent, may state plaintiff drew, 73, note (/). date of bill, statement of, in declaration, 73, note (g). ambiguous, whether bill or note, 73, note (h). must be addressed to defendant to render him liable as acceptor, 73, note (£). as to statement of value received, 74, note (m). of particular acceptance, 74, note (o). when bill itself evidence under money counts, 74, note (j>). acceptor liable though no presentment or demand is made, 73, note (c). no proof of presentment necessary where third person guaranties pay- ment by acceptor, 73, note (e). 2. Drawer not being payee against acceptor, 74. necessary allegation when initials of name only known, 74, note (q). tchen drawers a firm, 75, note (s). 3. Payee not being drawee against acceptor, 75. 4. Indorsee against acceptor, 75. consequence of not staling all the indorsements, 75, note (y). omission to state indorsement to plaintiff, lb, note (z). 5. Payee against drawer — default acceptance, 76. presentmerd to be stated, 76, note (e). 6. Indorsee against drawer — default acceptance, 76. 7. Indorsee against indorser — default acceptance, 76. 8. Indorsee against drawer — default payment by drawee, 76. acceptance need not be stated in this form, 11, note (k). 9. Indorsee against indorser — default payment by drawee, 77. 10. Indorsee against drawer or indorser of bill payable after sight, 77. In particular cases. 11. Indorsee against acceptor — on bill payable at particular place, 77. 12. Indorsee against drawer — in the like case, 78. 13. The like on bill draicn and accepted payable at particular place, 78. not necessary in such case to state presentment to acceptor, 78, note 14. Drawer against acceptor — on bill payable on contingency, 78. 15. Indorsee against drawer — where no notice of dishonor, and drawer no effects, 79. subsequent promise, evidence of notice, 79, note (y). when evidence of waiver of demand and notice will support allegation of demand and notice, 79, note (?/). effect, as to subsequent promise, of evidence that in point of fact notice of dishonor was not given, 19, note (y). excuse of presentment of foreign bill, 79, note (y). count when the notice is excused, and no promise to pay, 79, note (y). no effects in drawee's hands, when no excuse for want of presentment, and notice, 79, note (y). effect of subsequent promise to pay, when made with full knowledge of want of diligence, See. 79, note (y). waiver to be effectual must be made with full knowledge of the want of notice, ice. 79, note (y). how far this knowledge may be inferred from the promise to pay, and when, 79, note (y). taking sufficient collateral security, or an assignment of all the prop- erty of the maker of a note, effect of as a waiver, Arc. 79, note (y). effect of indorser receiving security and taking back property for which note was given, awl promising to deliver up note, in suit by the in- dorser against the maker, 79, note (y). INDEX. . • I BILLS OF EXCHANGE. — Continued. the taking back <>/ the property in such case, am! up the note, aflt dm , effect of at M>iice, 79, note (y). 16. The like against drawer — where 'I' it found 17. Indorser against drawer -drawee dead, 81. 18. Presentment dispensed with. Bl. special count by acceptor of accommodation bill for n him, 152. In the case of executors, assignees, husband and w 19. Executor of drawer against acceptor, 81. 20. Administrator of drawer against acceptor, - 21. Drawer against executor "1 acceptor, - 22. Indorsee of executor of drawer against acceptor, 88. 23. Indorsee of administrator of drawer against acceptor, 83. 24. Bv assignees of bankrupt drawer against acceptor, 25. Second count laying promise to plaintiffs, - 26. By assignees of insolvent drawer against acceptor, 27. By surviving drawer against acceptor, 84. 28. By husband and wife against acceptor, on hill drawn hy the wife dum sola, 84. 29. Against husband and wife, on bill accepted by her dum sola, 85. On foreign lulls, n:>-S7. 30. Drawer or indorser against acceptor, 85. necessary to aver that bill made abroad, 85, note (A). transfer' abroad of foreign bUl, 85, note (m\ what amounts to acceptance of 85, note I payable after sight, within what time to be presented, 80, note (»)• 31. Indorsee against drawer, default acceptance, 86. 32. The like, default payment, 86. 33. Indorsee against acceptor, supra protest, 86. Other forms. count against vendee of goods for refusing to pay by, '-M9. count against an agent for not taking up, 44. count against an agent employed to gel bills discounted, for DO* counting or returning them, 44. for not applying the proceeds according to instructions, u. count for money paid on promissory note fraudulently given m plain- tiff's name, 29. . . when particulars qfconsidt ration must I iriiculars of demand, 35, note (I), 74, note fj»), 78, note Pleas. ^Drawer or indorsee against acceptor ; denial of as to the effect of this plea, ami the evulence m note (/). 2. Indorsee against acceptor ; denial of indorsement, 3 as to the effect of this plea, and the evidence under it, 333, note (u). 3. Indorsee against drawer ; denial of the drawn . evidence required under this 4. The like : denial that hill was presented fo '»• evidence necessary undt • thu ■ ( 5 The like ; denial of presentment for payment. 534. evidence under this pit a, 884, note (-)• 6. The like ; denial of notice of non-payment. proof required to defeat this i ')• what notice must as to the sufficiency of the n 7 Payee or indorsee against acceptor of a lull with ■£ ceptaneeiFonn l" p. 77); denial of pre- -hug tc acceptance, 884. proof under this plea, 331. note (M. 762 INDEX. BILLS OF EXCHANGE.— Continued. 8. Drawer against acceptor of a bill accepted payable on a contingency (Form 14, p. 78); denial tbat the event has occurred, 334. 9. Drawer, not being payee, and having taken up the bill against acceptor (Form 2, p. 78); denial that the bill was returned, 335. 10. Indorsee against drawer, default acceptance (Form 6, p. 76); that drawer did accept, 335. 11. Indorsee against drawer of bill payable after sight, default accept- ance (or payment) ; denial that bill was presented for acceptance in due time, 335. 12. Indorsee against drawer, default acceptance ; that the defendant had not due notice of non-acceptance, 335. 13. Against drawee, default payment, alleging that drawee could not be found (Form 16, p. 80); that due search and inquiry were not made for him, 335. 14. Indorsee against drawer, alleged to have dispensed with present- ment (Form 18, p. 81); that he did not dispense therewith, 335. 15. Indorsee against drawer, alleging the latter had no effects in drawer's hands, and that no notice was given (Form 15, p. 79); that there were effects, 336. 16. In the like case ; that there was a consideration for the bill, 336. burden of proof on the question of consideration, 341, note (o). proof that plaintiff is holden for value, when required, 341, note (/?), 345, notes (z) and (a). 17. Indorsee or drawer of foreign bill, default acceptance (or payment) (Forms 32, 33, p. 86); that the bill was not protested, or due no- tice given, 336. In confession and avoidance. 18. Indorsee against drawer or acceptor; payment by defendant to plain- tiff, 336. by what proof this bill toill be sup- ported, 336, note (q). payment before due does not avail any party as against a bona fide holder, 336, note (r). 19. Indorsee against acceptor ; payment to drawer, showing facts to make it a good payment as against the plaintiff, 337. 20. Indorsee against drawer ; payment by acceptor to plaintiff after due, 337. 21. Indorsee against acceptor ; that the bill was altered as to its date by the drawer, 338 and note (a). 22. Payee against maker of a note ; that it was given by the defendant for a bill (on which he was once liable), in ignorance that the bill had been subsequently avoided by alteration, 338. 23. Indorsee against acceptor ; that the bill was given in ignorance, to renew a prior forged bill, 338. 24. Drawer against acceptor; that the acceptance was for plaintiff's accommodation, and without value, 338, 339, notes (/) and (g). 25. Indorsee against acceptor ; that the acceptance was for the accom- modation of the drawer, who indorsed without value, 339, and note (li). 26. Similar plea in the above case, that the acceptance was for the accommodation of the plaintiff, 339. 27. Indorsee against acceptor; that the bill was accepted for the ac- commodation of the drawer, and was taken by plaintiff after due, &c. 340. 28. Indorsee against acceptor; that defendant deposited goods with the drawer as collateral security for payment of the bill, that drawer sold goods and applied proceeds to the bill, and, after it was overdue, indorsed it to plaintiff, 340. 29. Indorsee against acceptor; that the drawer violated his agreement wiih the defendant to get the bill discounted for him, and that plaintiff has no better title than the drawer, 340. INDEX. BILLS OF EXCHANGE. — Continued. 30. Indorsee against acceptor ; that the act • accommodation, who indorsed il to A to d thai A., in violation of that purpose, indorsed to ill notice, 3 12. 31. Indorsee against drawer; that the bill was drawn I accommodation, and indorsed by defendant to \ the acceptor, and thai A., in violation of thi to the plaint ill, with notice, 8 12. 82. Indorsee against acceptor; that the defendant accent* h and that the bUl was settled in an account with a prior in and that the plaintiff took the bill after it was d 33. Indorsee against acceptor; that the bill was indorsed after it was due, and that defendant paid part to a prior hold and cave him another bill, 34. Plea that plaintiff accepted a composition for the bill from a p holder, without defendant's consent, 34 35. Indorsee against indorser ; thai the plaintiff indorsed the I before due, to a person unknown, who n I it to tl ■ by whom it was refused, of which defendanl bad no i 36 Drawer against acceptor; that the bill « pted on tion to be receive! in fvturo, which failed (c. g. that the plaintiff ahould Bell g 1- to the defendant, which he failed to Wo), 343. 37. Drawer against acceptor; that the bill was accepted sub vesti*ation of accounts between the parties, and tl ward^ found that there was no balance against the defendant, 38. Drawer against acceptor, or indorsee against his u acceptance or indorsement was obtained by fraud. 3 39. Indorsee against acceptor; that the drawer obtained by fraud? and that plaintiff took the bill with notice without value, or after due, 845. 40. Plea to a note, that it was signed bj defends A. B., to whom plaintiff was to advance a sum ... i plaintiff, without defendant's consent, advanced a 41 InCrsee against acceptor (or drawer); thai plaint 42 InS^dn^l- that payee l amebankrm 43 d^o!-!:;:!^ 1 " 2£, t^****™ U.P^a^ KT«=ai^ Se^aml in the belief that the a ptor would pay when d« and replication in dcnal. 346. . „•„,,, 45. Indorsee against drawer; plea oJ discnarg( dj acceptor, 34 7. thority of her husband, 847. 49. Plea, that the plaintiff is a c *»*£*£&] 60. Indorsee againsl acceptor; no •;;':*,, tint bv aereemenl between the draweT ana piainu S'toeXrce the note on certain conditions, which had not complied with, 848. m Indorsee against indorser; plea that the draw 51, defendant and the plainfifi were the same | 764 INDEX. BILLS OF EXCHANGE. — Continued. that the defendant indorsed for the acceptor's accommodation, to whom plaintiff gave no consideration, 348. BILL TAKEN FOR THE DEBT. is a conditional payment in simple contracts or money debts, 348. original remedy only suspended, 348. when remedy only on the bill, 348. effect of in Massachusetts, and some other states, 348, 349, note (m). bad plea to debt due on bond, 348. promissory note given for rent, 348. no answer in case of unliquidated damages, 348. Pleas of. 1. Plea that the defendant accepted a bill of exchange not yet due, on account of the debt, 349. 2. Replication (to a plea that the defendant accepted a bill drawn by a third person), that the bill was dishonored when due, 349. 3. Pleas that the defendant accepted a bill not due, in payment of the debt, and for plaintiff's accommodation, and delivered it to the plain- tiff without a drawer's name attached thereto, 350. 4. That defendant indorsed a bill to plaintiff on account of the debt, 350. 5. Replication, to last plea, that the bill is overdue, and unpaid, 350. 6. That defendant indorsed to plaintiff on account a bill upon a third per- son, and was discharged from it by laches, 350. BILL OF LADING. See Carriers. count on, by consignee for damaging cargo, 108. a like count, charging loss of goods by a collision, 108. count on, by indorser for same, 109. declaration by consignee for not delivering goods, 108 note (s). what it is evidence of, 109 note (i). now, a negotiable instrument, by statute in England, 109, note (t). aside from statute, the effect of an indorsement is only to transfer the property, and not the right to sue on the contract itself, 109, note (t). in the usual form is both a receipt and a promise, 109, note (f). as a receipt may be open to parol proof , 109, note (i). otherwise as a contract, 109, note (t). under a " clear " bill of lading imports that goods are to be stowed under deck, and parol evidence that they are to be stored on deck is inadmissible, 109, note (<). cannot be contradicted as to course vessel is to take, 109, note (z). BILL BROKER, OR OTHER AGENT. count against, for not discounting a bill intrusted to him, or returning it, 44, 45. BLEACHER. count against for not bleaching properly, 68, Form 2. BOARD AND LODGING. common count for use and occupation of room, 34, 87 and note (./"). for necessaries, 215. by a schoolmaster for, 242. contract for, not within statute of frauds, 184, note (h). no duty resting on lodging-house keeper to take care of the lodger's goods, 184. BOARDING-HOUSE KEEPER. count for slander of, 548. BOND. I. Common money bonds. no assignment of breach of condition necessary, 87. penalty at common law, 87. by statute, 87. payment into court, 88. statute of Anne, 87. H. Bonds having special conditions, assignment of breaches, 88. bond executed contemporaneously with separate deed, 88. when breaches assigned in replication, 89. judgment signed in default of rejoinder, 90. INDEX. BOND. — Continued. statute of William 3, 88. declaration on bond, under Massachusetts practice act, condition deemed part of flu md wmt set forth, 90. breaches relied on must be assigned, so performance of conditions must bt \ non-performance, 90. in New York, complaint must contain averments of tin tpedfic brea^ for which action is brought, 90. rule does not apply to bonds for payment of mow,, by instal- ments, 90. nor to bonds for payment of on annuity, 90. several breaches are in nature of distinct causes of action, 90. on penal bond, judgment is for penalty, 90. plea of bill taken for the debt is bad to an action on a bond, 848. Counts. 1. On a common money bond, 90. the damages are limited to penalty, 90, note (k). 2 On a motWe bond, or bond for the performance of covena 2a. On a bond with condition to pay certain debts of plaintiff, and prw for bis support, 91. 3 By a surety on a bond of indemnity for Bdelity of clerk, 91. 4. On a bond given to guardians for due supply ol prOTUHOns, 92. 4a. On a bond given to churchwardens for the performance of the da of rates collector, and pleas, 92. 5. On bonds in restraint of trade, 92. 6 Against a surety on a bond for fidelity of agent, 9i. Pleas 7. Against a surety on an annuity bond, 92. w„™„rt 09 8. By assignee of administration bond, assigned by order of probate court, 92. s. Y. J, gmtr.u i 10. T^fona bond conditioned to perform the covenants in another in- denture, general plea of performance, 853. 11. Nondamnificatus, to an indemnity bond, ,»* , ;in ,, 12 - ^rS,':^™? £S?5i &* 13. Replication, assigning breaches, 3oo. BOOKING-OFFICE KEEPER. See Carriers. duty of to deliver to carrier, 486. form of declaration against, 486. count against for not taking care of goods, 105. BOOKS, See Copyright. BREACH. noo denied under non assumjmt, -J»i. BREACH OF PROMISE. See Marriage. BREACH OF THE PEACE. See Trespass, 696. BRIBERY. See Parliament. count for penalty for bribing voter, 92. statutes relating to, 92, note (rV »»*• . „ 54 aeW issue, 6y statute, 286, 287, 288, note (o), 354. 766 INDEX. BROKER. See Agent; Notice of Action, 6 74. evidence in action for commission of, 38, note (p). count against, for not purchasing shares, 93. for not giving true account of purchases, 93. against client by broker for not ratifying sale, 93. again>t broker employed to purchase and accept goods, for accepting goods not agreeing with the contract description, 93. indebitatus count by broker for commission, &c. 93. like counts, 93. count by broker for a share of commission payable for introducing busi- ness, 93. by a broker against his employer on implied promise that shares delivered him to sell were genuine, &c. 93. by broker against employer on implied warranty that he had author- ' ity to sell, 93. count against broker on an implied warranty of authority to sell goods to the plaintiff, 4 7. count by and against insurance broker, 157. who is within acts relating to, 354. unlicensed, cannot recover commission, 354. statutes, 354, 355. plea that plaintiff was not a duly licensed broker, 358. BROKER DISTRAINING. counts bv, on indemnity, 156. BUILDING." liability of owner of, in respect to snow, &c. falling from roof of, while let to a tenant, 577, note (k), 583, Form 14. BUSTS. piracy of. See Copyright. CAB. See Carrier. CALLS BY COMPANY. See Public Company. CANAL. See Carriers, 94, 355, 489, 639. CAPIAS. See Distress; Sheriff. CARELESSNESS. See Agent; Negligence, 564; Nuisance. CARRIAGE MAKER. lien of, for repairing, 729. CARRIAGES, COLLISION OF. See Negligence; Trespass, 564. CARRIERS. See Freight; Ship. declaration in contract or tort, 94, 355, 487. who should be plaintiff in actions against, 94. in general, the consignee, 94. except where property in goods has not passed to him, 94. consignor may sue when he has contracted for safe conveyance, though property may hare passed, 94. in case of joint bailment, 94. sufficient to sue one of several carriers in partnership, 94. liability at common law, 94, and 100, note (/). carrier's act, 94, 96. liability of railway and canal companies, 95. railway and canal traffic act, 95, 357, note (y). special contract, reasonable condition, 96, 97, 104, note (in), 357, note (y). when delivery must be proved, 97, note (s). as to what is a delivery, 99, note (a). merely leaving goods at place from which carrier starts is not sufficient, 99, note (a). delivery in the ordinary course of business, generally sufficient, 99, note (a). where constant usage for carrier to receive properly left for transpor- tation at a particular place, 99, note (a). generally express notice that goods are left for carrier should be given him, 99, note (a). goods left in warehouse of railroad corporation for their convenience, risk of, 99, note (a). INDEX. CARRIERS. — Continued. where kept in warehouse for conveni nee of owner. 99 note (mp, i note («/). where cad, line is to pay preceding line, whole of consigi presumption, when 1 goods tola n up as to the carriers on whosi liru don>\ 99, note (•/). in. New York, win re through been paid. 99, note | where through chargi 99, note '(), i note (/). as to carrier's negligence in such casi . 97, 104, note (m). as to what is or is not a reasonabb con (m). when proof of negligence necessary, 101, note (•/). duty to deliver within a reasonable time, 103, note (A)- a time specified by contract must be declared upon, li 3, note (h). wJiat is reasonable time, 103, note (A). as to duty of master to give notice to consignee of ship 1 . \"~, note (/>). when consignee refuses goods, 107, note (/'). notice to consignor that consignee refuses to rea ive, 107, note (/>). carrier not justified' in taking goods back, 107, note (/>). duty of master is to deliver to consignee, on customary who notice, 107, note (p). notice indispensable, 107, note (p). how long carrier continues liable, 107, note (/>). where consignee lives off route of carrier, at a point to which there u no n ■.- lor carrier, 107, note (/?). as to carrier's duty when he cannot find i [07, m what bill of lading is evidence of, 107, note (7). 1 I Wit of Lading. effect of non assumpsit, 275, 355. may be sued for neglect, 487. effect of not guilty, 639. defence under carriers' act must be pleaded, G39. lien of, 729. measure of damages for not delivering goods in time, where goods ha\ and Cat for non-deli 'where no marh I note (A). 768 INDEX. CARRIERS. — Continued. loss of hire of goods sent for hire, 103, note (£). loss of prof ts, 103, note (£). agreed value, 103, note (k). loss of machinery for which carrier knew consignee was waiting, 103, note (£). for carrier's delay in giving notice to consignee of arrival of goods, 107, note (p). loss of goods, 101, note (a). Counts by and against, 97-109. In contract. 1. Common count for carriage of goods, 97. 2. For freight, 97. 8. For lighterage, 97. 4. For tonnage of goods, 97. 5. For demurrage, 98. 6. For wharfage and warehouse room, 98. 7. For passage money, 98. 8. By owner of ship against shipper and consignee of goods for not receiving goods within a reasonable time, 98. By master of ship against consignor, on a bill of lading, stipulating that the vessel should take her regular turn in loading, for not unloading in turn, 99. By carrier against shipper on implied warranty that the goods were not dangerous, 99. 9. Against carrier for losing goods, 99 and 104. 9a. Declaration for negligently shipping and carrying, 102. 10. Against carrier for not delivering within a reasonable time, 103. 10a. Declaration for refusing to carry a passenger, 104. 11. Against carrier for loss of or damage to goods, 104. 12. Against carrier for careless delav in delivering, 104. for negligence in receiving a horse, 96. carrier's negligence need not be proved though averred, 101, note (g). unless there be a special contract, 101, note (a), as to the burden of proof , 101, note (a). where there is damage to the goods or a failure to deliver, 101, note (<7)- 13. Under special contract for non-delivery, 104. 14. Against booking-office keeper for not taking care of goods, and for not delivering them to carrier, 105. 15. Against carrier for not delivering according to directions, 105. 16. Against a carrier for damages done to furniture in removing it, 106. 17. Against railway company for not safely keeping goods left in their custody at their station, 106. Against carriers by water. 1. For losing goods, 106. 2. For damaging cargo, 107. 3. Bv consignor for not giving consignee notice of arrival of goods, 107. J © ©CO ©' 4. By the consignee, upon a bill of lading for not delivering, 108. 5. Same by indorsee, 109. Other form. by owner of lighter for not accepting and unloading goods, 98, note (2). Of goods by land. In tort. 1. Against a carrier on his common law liability for losing goods, 487. 2. Against a common carrier for injury to goods, 487. 3. Against a railway company for negligently injuring cattle carried under contract, 487. 3a. Against a company for negligence in receiving a horse, 488. 4. Against a common carrier for not delivering goods within a rea- sonable time, 488. 5. Against a carrier for not carrying and delivering goods in time for a certain market, 488. i x r - . CARRIERS.— Continued. 6. Against a carrier for nol taking care of • <• had refused to accept then 7. Against a com d carrier for refusing I la. For refusing to carry a hone unless tin- valu< insured, IS Of goods by water. 1. Against a ship-owner for the loss .if 2. Against a Bhip-owner for damaging 3. For not delivering to plaintiffs assi| 4. Against Bhip-owner f or negligenl towage, V Like count, 490. Count for damage done to goods by Btowing them oi For negligence in stowing goods on board undi 490.° The like on a contract made aim .ad. I 5. Against the defendant for Bhipping d notice thereof, 190. 6. Against the owner of a ferry for injury to g Ii 7. Against the master of a Bteam-tug, for i .••<• in towing in* tiff's ship. 490. Of passengers by land. 1. For refusing to carry, 491. 2. Against a railway company for delay in a train. 191. 3. For injury to a passenger, I '■'-'. 4. Against a carrier for negligence by tie' executor of decease ■! pai imder 9 & 1" Vict. c. 93, 492. death of human being, not ground of act- (v). 5. Against a railway company for not running a train. M a.'. the tables, 493. 6. Against a carrier for loss of luggage, 193. 7. Against a cabman for losing tie' In. his fir. against a coach proprietor, omnibus proprietor, railway °or owner of a steamer, for injury b; Of passengers by water. 1. For refusing to carry passengers, 494. 2. For loss of a passenger's luggage, 494. Of iug^sh^gs. Agamst an electric telegraph company for not transmitting a m correctly, 494. Pleas. In contract. 1. General issue, non assumpsit. 355. 2. Never indebted, to the indebitatus counts, 855. 2a. Plea to an action for freight that defendant had indorsed -1. lading to a third person, ••;.">■">. 3. Traverse of delivery and receipt of the g Is, 1 4. Plea that defendant did safely carry and deliver the 5. Plea by a carrier by land, that he is protected bj • 11 Geo. 4, and 1 W. 4, c. 68, the i Is b £10, and the value not declared or insured, 6. Replications thereto. .!.">:. 7. Plea that the goods were earned undi as to conditions u ^Pleatoanactionfor^'diC %*%£**< not ascertain to whom .ley w^ to 1* delivered ,3 " 9. Plea to a like action, thai th under a ,i. fa. on a judgment lentlv assigned them to the plaintifl vol. n. 49 770 INDEX. CARRIERS.— Continued. conditions that they would not be responsible if their value ex- ceeded £10, and that they did exceed £10, 359. 11. Plea to an action by the consignee of goods, for not delivering them, that the consignor gave notice to the carrier and stopped the goods in transitu, 359. 12. Plea that the goods were seized by the plaintiff's landlord, as having been fraudulently removed to avoid a distress, and so defendants were prevented from delivering them, 3G0. 13. Plea that the goods were received subject to a condition that the defendants were not to be liable for loss or damage from the act of God, 360. 14. Plea that the goods were carried and tendered to the plaintiff, who refused to pay for the carriage, 360. 15. Replication to the above, that within a reasonable time plaintiff was ready and willing to receive the goods, and offered to pay for the same, 360. 16. Plea of payment into court to a count for non-delivery or loss of goods, 360. 17. Plea to a declaration for negligently stowing goods shipped on board plaintiff's ship, that the goods were of a destructive character, 360. 18. Plea by a carrier by sea, that the nature and value of the goods were were not declared, 360. 18a. Pleas to an action, by an indorsee of a bill of lading for wrong delay, that delay took place after plaintiff had indorsed the bill of lading to another person, and replication reindorsement to plain- tiff, 361. 18 J. Plea by a railway company, setting up a by-law, 361. In tort. Not guilty, 639. 1. By a carrier denying the receipt of the goods, 639. 2. That defendant was not a common carrier, 639. 3. That plaintiff did not pay the carriage, 639. 4. By a carrier, sued on his common law liability, that the goods (oil) were lost by being put in an insecure cask, 640. 5. By a carrier by water, that the goods lost were silver within the 26 Geo. 3, c. 86, s. 3, that their value was not declared in the bill of lading, and that they were stolen without defendant's default, 640. 6. Piea of notice and stoppage in transitu by an unpaid vendor, 640. Other forms, 639, and 639, notes (k) and (I). Avowry by carriers justifying under general lien, 687. Pleas of lien by, 805. CASSETUR BREVE. entry of, to plea in abatement, 17, note (IS). CATTLE. See Carriers; Common of Pasture, 496. CAVEAT EMPTOR. See Fraud, 518. CERTIFICATE. See Public Company, 591. plea to an action on an attorney's bill, that plaintiff had taken out no certificate, 305. plea of defendant's bankruptcy and certificate for costs in trespass, 610. See Bankruptcy. CHAMPERTY. See Maintenance, 309, note (t). CHANGE OF VENUE. See Venue, 2. CHARACTER. See Libel and Slander, 658. representations respecting, to charge party making, must be in writing when, 526. declaration need not show that the representation was in writing, 526. counts for falsely representing, 527. CHARTER-PARTY. when special count only necessary, 110. parties to actions on, 110. warranty of seaworthiness under, 110, note (y). INDEX, TT1 CHARTER-PARTY. — Contintu averment ofpt rformtm litiotu / measure of damages, 111, note I what are conditions prt a di nt u exceptions in, 111, uote ('/). common counts for freight and demurrage, 97, Counts. On charter-party. 1. Not under seal, for aot loading, 110. la. For not loading a full cargo, 111. 16. Fur nol supplying broki o cargo. 111. lc. For not loading in regular turn according to 111. Id. For not loading with "usual dispatch" accordi 111. 2. Not under seal, Eor nol discharging within laying da; and demurrage, 1 1 2. 2a. For dot (.-nt inn before loading, 112. 3. Not under seal, againsl charterer Eor not havii port, 112. 4. Not under seal, against ship-owner Eor aol ing, 112. 4a. For delay and deviation in the < 113. 4ft. For refusing to proceed to port of ultimate destination, Ac. By charterer against ship-owner Eor uol repaj in advance, upon Eailure to deliver cargo, 1 13. 4d. By charterer against ship-owner on a warranty in ens that ship was of certain class, 1 18. 5. Setting out the charter-party in terms, 118. 6. On a charter-party under seal, 113. 7. By ship-owner against charterer, Eor notloadinj age, 113. 8. For not loading agreed cargo, 1 I 9. For not loading in a customary manner, 114. 10. For not loading before the expiration oi lay day, 114. 11. By owner against assignee ol Ereighter f or demun 114. 12 Against owner for not carrying, 114. 13 Bv charterer against master Eor deviation, 114. 14. Against ship-owner for not performing six , 15. A? ainst ship-owner for proceeding on vo; Eternis* 16.]*5552E ^aiust charterer on a contra charter-party. 114. > Pleas. 1. Non assumpsit, 284, 361. t pt &A*£L Id I I « ego, *• - Plea thai defendant waa anta°rrfna e dtoload,361. ^ ^.^ J lca tliat in i Ml '" " , p^form his contract under ^the cnarter-partj CHECKS. See Bankers; Bulb oi Exchako*. require a stamp, 114. crossed check, 114, 362. 772 INDEX. CHECKS. — Continued. are substantially sa7ne as inland bills of exchange; they pass by delivery, and same rules govern as to presentment, frc. 115, note (?•). are bills of exchange within summary proceedings act, 115, 363. time for recovering in. 115, note (r), 362. effect of delay in presenting, 115, note (r). non assumpsil and never indebted cannot be pleaded to, 330, 362. stamp must be cancelled, 362. post dated, 362. presentment and notice of dishonor, 362, 363. alteration of crossing, 363. on a banker, payable to bearer, negotiable, and passes by indorsement, and holder may sue maker thereon, 116, note (7). Counts on. 1. Payee against drawer, 115. 2. Bearer not being payee against drawer, 115, 116, and note (*)• 3. Bearer against indorsee, 116, and note (x). ■1. Indorsee df .heck against indorser, 116, and note (a;). CHRISTIAN NAME, should be correctly stated in declaration, 2, (e). irh< ii initials may be used, 74, note (7). CHURCH. See Pews, 589. plea justifying expulsion of plaintiff from a church, 701. plea in trespass that plaintiff was making disturbance in, 708, Form 4. CHURCH-WARDENS. commencement and conclusion of declaration by, 11. when they must sue for general parish purposes, 11, note (r). CIRCUITY OF ACTION. pleas allowed to avoid, 363. unliquidated damages, 363. covenant not to sue, 363. CLAIM OF DEBT. See Damages, 4, 5. CLERK. action by clerk of trustees, 10. count on guaranty for fidelity of, 138, Form 2. plea of variation of risk to a bond for faithful services of, 353, note (m). CLOSE. See Trespass to Realty, 615, 716. CLUB. ] ilea justifying removal of plaintiff from, 708, Form 5. COACH PROPRIETOR. See Negligence, 564, 670. liability of, for damage, 566. COGNIZANCE. See Replevin. 683. COGNOVIT. See Malicious Arrest, 550, 668. COHABITATION. See Husband and Wife. plea to an action on a bond, that it was given in consideration of future illicit cohabitation, 404, Form 15. COLLISION. See Negligence, 564, 670; Ships, 600, 694. COMMENCEMENTS AND CONCLUSIONS OF DECLARATIONS. See Declaration. _ _ OF PLEAS. See Plea; Re- joinder. COMMISSION. evidence in action for, 38, note (]>). recoverable by land agent, 38, note (p). recoverable by an unlicensed appraiser, 38, note (/>). count by agent for, 38, Form 1. COMMISSION AGENT. See Agent. COMMISSIONERS. See Negligence, 564; Notice of Action, 674. liability .j. horse and carriage hire, 85. account annexed, 85. for money lent, •'! I. for money paid, 3 I. for money received, 8 I. for interest, 34. on accounts stated, :: l, 35. where declaration contains prior sp cial ones, •'(•'). for use and occupation, .'>">, 87. Principals, when they will lie — goods sold and delm r< d, '27. whether sold at a fixed price or not — actually or con ered, 27. on the order of defendant and at hie request, 87. when delivered on sale or return, 27. tvhen goods obtained on a fraud ub nt sale, 28. when goods to be paid for by bill, .w. 28. interest, 28. bargained and sold, 28. where proper/;/ in goods has passed by M nor any act equivalt ni to a d< Km re- constructive acceptance, or written memorandum, or part payment, a*. 28. work and materials, 28. done under special agreenu nt, ifU rms haw bt ■ n com) attorneys, surgeons, §'c. may recover under this c»un'. for the value of any mental labor and skill, money lent, 28. I U no evidence under this count, 28. money paid, 28. instances, 28. contribution, 29, or as surety, or on any other legal liability, 29. instances, 29. from what request to pay implied, actual money, 29. under mistake or forgetfulness of fa extorted, 29. or obtained by same fraud ub nt practices, 29. property taken and converted into money, 29. on a consideration that has failed, on a bargain which has gont off, '■'<•'■ other instances, 30. illegal wagers, 30. money authorized to be applied to an to a witness, wh / money paid, umbra contract rescinded, 80. money paid under c frauds, i '•«*« not complete, 30. in what cases and how by a joint tenant or tenant in common no request to pay will b 1*1' 29. See pos\ Im>i mm i v. 774 INDEX. COMMON COUNTS. — Continued. money received. 29. money obtained by fraud, ichen, 31. where no money actually received, 31. against agent, 31. must be privity between plaintiff and defendant, 3 . privity resulting from one person holding the money of another without right, 31. interest, 31, 32. vhere contract or usage of trade, 31. surety entitled to, 31. cases where prima facie not payable, 31. as to judgments, 31. payable on bills, notes, and bankers' checks, 31. on over charges made by railway company, 31. compound interest, 31. payable after demand made, 32. t money advanced, lent, or expended for use of another, 32. in action for money had and received, ivhen recoverable, 32. stakeholder, agent, trustee, bailee, fyc. 32. on money of one person wrongfully detained or used by another, 32. open accounts, 32. when no other demand is made, payable from time of action brought, 32. demand to be alleged in writ, 32. account stated, 32. 1 U is evidence under, 32. ichen bill is evidence, 33. when parol, 33. implied promise on executed consideration, 33, note (a). when agents may sue on, 40, note (x). COMMON OF PASTURE. See License. is either appendant, appurtenant, or in gross, 406. proof of right to, 496. intermission of user, 496. declaration by tenant concerning right a, 496, 497. effect of not guilty, 640. license must be specially pleaded to an action for disturbance of, 640, 641. surcharge, 641, 642, note (»/). Prescription act, 640, 642, note (y). Count for obstructing the plaintiff's right of common, 497. Pleas. 1. Denial of plaintiff's right of common, 641. 2. Denial of plaintiff's possession of the land, 641. 3. Plea of right of common of pasture, 641. 4. Plea of a right to dig or carry away marl or sand, 642. 5. Plea justifying pulling down a building erected on a common, 642. 6. Replication denying the right of common, 642. 7. Replication that the cattle were not the defendant's commonable cattle, 642. COMPANY. See Public Company, 225, 451. commencement and conclusion of declai-ation by public officer of. 11. by railway, 11. by joint stock, 11. by limited, 12. by banking, 12. commencement and conclusion of declaration by official liquidator of, 12. by or against a corporation, 13. court will lake judicial notice of, created by act of parliament, 10, note contracts by, how entered into, 11, note (s). suggestion of change of name of, during action, 11, note (s). registration of, 11, note (I). COMPENSATION. .See Public Company. INK COMPOSITION- WITH CREDITORS arrangement for composition creditor cannot sign for , hill given-for debt, default in private arm,,,/, m nt with om additional security after signing money paid to induct en /). CONDITION OF BOND. .See Rom.. CONDITION PRECEDENT. performance of, if denied, must bt form of averment of performance of, 39, and no plea of condition precedent and non-performani when consideration executed, 279. in a charter-party, 111, note ( . (. CONFESSION AND AVOIDANT K. - Plkas. CONSIDERATION. See Bills oi Ex< a ln< executed, promise to pay implit d in, for bill, when particulars of, must note (I). nonassumpsit and never indebted, deny exi denial of performance of conditions > defence of want of, to I'M or plea simply alleging want of, 341, note i distinction between original ai i \dfailu partial failure of involving a suit on bill or note, 348, note («). as in case of a bill or noU for ' • • >rse or other i • . warranted sound, 343, note <'/). 776 INDEX. CONSPIRACY. action of, 498. damage, not mere conspiracy, gist of the action, 498. against principal and agent, 498. acts of conspirators as affecting each other, 498. count for conspiring to hiss an actor, 498. CONSTABLE. See Notice of Action, C74. Trespass to the Person, 610; a-hen he may arrest without warrant, 767. Plea of no notice of action, 675. CONTINUING NUISANCE. when defendant liable for, 580. CONTRACT. See Alteration of Contract, 298. what actions are in, 27. firms of action in, may be joined, 27. exceptions, 27. simple contract debts recovered under money counts, 27. CONTRACTORS. See Negligence, 564,670. CONTRIBUTORY NEGLIGENCE. See Negligence. CONVERSION OF GOODS. See Trover, 618, 620. CONVICTION. plea of, in abatement for felony, 391. plea of, before magistrates in action of assault, &c. 698. plea that plaintiff is a convicted felon, 34 7. COPYHOLD. count for fines, 116. plea justifying taking coals under a custom, 642. where the lord pleads lib. ten. plaintiff' should reply the copyhold grant, 719, note (q). COPYRIGHT. See Drama, 118 ; Injunctions, 529. defence that assignment of, was not in writing need not be specially pleaded , 368. assignments respecliny dramatic production need not be by deed or registered, 368. depends upon statute, 498. regulated entirely by Congress, in the United States, 499. United States courts have exclusive jurisdiction over, 499. granted for twenty-eight years, Sec. 499. book of registry, 499. non-registration should be pleaded, 499. what is infringement of, 500. effect of not guilty, 642, note (z). statute 5^6 Vict. c. 45, 368, 643, note (a). Counts. for printing for sale pirated copies of a book, 500. for selling printed copies, 501. other forms, 501. Pleas. 1. Plea denying the copyright, 642. 2. That the title of the book was an attempt to impose it on the public as the production of a celebrated author who had not written it, 643. notice to be given with the pleas in an action for pirating a copyright in pursuance of statute, 643. CORPORATION. See Public Company, 225, 451. must sue by attorney appointed under common seal, 4. court will take judicial notice of, under .act of parliament, 10, note (js). included in words '■'■person or persons," 501. when liable for a tort, 501, 502. for negligent acts of servants, 502. action by and against for libel, 502. in trover, 502. for assault and battery, 502. for malicious prosecution, 502. municipal corporations, when liable to action, 502. declarations by and against, 13. INK CORPORATION. — Continued. counts againsl corporate bodies, commissioners, trust negligence, 495. CORRECTION. See Masti b am- 81 b\ urr, I plea justifying moderate, of an apprenl assignment of excess, ( j 7 2 . COSTS. in actions by assignees, 9, note (/")• on demurrer, 17, note (/.). on entry of cassetur breve, 17, note (/.)• plaintiff's, on confession of plea, 22, note (./•). tn actions of trespass, 610. COUNT. See Declaration. several, when allowed, 5, note (a). joinder, or for separate causes of action, 27. in contract and tort, in same declaration, 477. See Forms oi A< now. COUNTY POLICE. .See Notice of Action, 674. COURT, COUNTY. See Notice of A< now, 674; Replevin, 591 I PASS TO Person, 776. COURT, PAYMENT INTO. See Payment otto Court, U in action of libel against newspapers, 661. COURT-MARTIAL. count for malicious prosecution before, 556, Form 8. COVENANT. See Landlord and Tenant. special form of action in, abolished, 27. covenant not to sue not pleadable in bar, 369. reasonable in composition deed, S22, running with the land, 198, note (£). implied, quiet enjoyment, 200, note (7). " demise," " grant," during period ', 200, n construction, 200, note (7). damages, 200, note (7). /;-/■ repair, Sfc. 186, note («), 187, note (x). COVERTURE. See Husband and Wife. pleaded in abatement or bar, 368, note (//), 225, note plea of, is an issuable pint, :><;s. note (//). must be specially pleaded, 368, note (y). proof of marriage, 368, note (z). replication, 368, note (z). plea of defendant's coverture when contract was made, COUNSEL'S SIGNATURE. no lonqer necessary to pleading, 19, note (/*). CREDIT UNEXPIRED. evidence of may be given under geih special plea, 368. CREDIT, MUTUAL. See Bankrupt, 316 j - plea of, in action by assignee of bankrupt. 167, Form CREDITORS. See Bankruptcy ; Composition, declaration by judgment, against garnishee, 16. CRIM. CON. action of, abolished, 528. CRIM. STATUTES. See Notice of Action, 674. CROPS. See Landlord and Tenant. common count for crops sold, 117. count by an outgoing againsl incoming tenant. 117. CRUELTY TO ANIMALS. See Not* CULTIVATION. See Landlord ind Tenant. counts against tenant for bad, 189, 192. CUSTOM. right to take away growing crops what necessary to constitute a valid, 6 1 i- instances of good, 64 1. 77^ INDEX. CUSTOM. — Continued. plea justifying taking coals under, 042. form in replevin justifying taking cattle under, 644. plea justifying under custom to erect stalls on a common at a fair, 644. CUSTOM AND KM [SE OFFICERS. See Notice of Action, 494,674. DAMAGE FE \ued, 15. commencement of declaration where one of the plaintiffs died after issuing of the writ. 15. the like, when one of the defendants died after issuing of the writ, 15. of intestate, title of executor relates back to, 515. DEATH BY ACCIDENT. See Carriers. 492; Negligence, 564. not ground of action at common law, 492, note (r). DEBT. See Contract. special form of action in, abolished, 27. simple, recovered under common counts, 27. DECEIT. See Fraud, 392. DECLARATIONS. Commencements and conclusions of. preliminary observations, 1. title, of the court, 1. consequence of mistake in, 1. date of declaration, 1. ivhen to declare, 1. should be properly entitled, 2. venue, 2. plaintiff's name, 2. consequence of mistake in, 2. identity of plaintiff if his name be wrongly slated, 3. correction of mistake in declaration, 3, 4. writ general, declaration particular, and vice versa, 3. same parties in icrit and declaration, 3. declaration in person, or by attorney, 4. infants, idiot.-:, corporations, &fc. 4. defendant's name, 4. mistake of, in writ, 4. summoned, Sfc. 4. form of action, 4. • variance of writ with declaration, 4. conclusion of, 4, 5. when plaintiff omits to state whether he sues by attorney or in person, 19, note (o). is demurrable if it omits words " money payable," §*c. 33, note (a), form of declaration after plea in abatement, 5. 1. In action commenced in superior court-. 1. Declaration after a writ of summons, 5. 2. Declaration against two defendants, where, in a former action against one of them, he pleaded the non-joinder of the other in abatement, 5. 3. Declaration where there are several defendants, and the writ has been specially indorsed, and judgment has been signed against one defend- ant, who has suffered judgment by defatdt, and the plaintiff proceeds against the other defendants, 6. INDEX. DECLARATIONS. — Co 2. Declarations in actions removed from Inf 1. Commencement of declaration In an rim- court . 6. 2. Commencemenl of a dec! iration in replevin, R 3. In actions by and I particular | 1. Commencement and conclusion 2. Declaration by an administrator with the will ai ing appointed, &c. 7. 3. By an administrator with the will annexed, by an executor de< i i ed, 7. 4. By an administrator during the minority of i 5. By husband and wife, administratri 6. Against an administrator, B. 6a. Another form, 8. 7. By tho assignees of :i bankrupt or insolvent debt 8. By the assignees of a bankrupt partner :mv land, &c. held Geo. 3, c. 12, s. 12, 11. 16. By the public officer of a company authorized I or letters-patent granted pursuant to i Vict ■-. i LI. 17. By railway and other companies under the S .11. 18. By a joint stock company completely i I under companies' act, 20 & 21 Vict. c. 14, 11. 19. By or against companies having Limited liability and 47, and 20 & 21 Vict, c. 14, 12. 20. By a banking company registered under the joinl Btock ; panics' act, 1857, 20"& 21 Vict c. 19, 12. 21. By an official liquidator appointed under the joi (winding-up) acts, 1856, 1857, 12. 22. By or against a corporation, 13. 23. By an executor, 13. 24. By a surviving executor, 13. 24a. By an executor of an executor, 13. 25. Against an executor, or husband and wife, executrix, 25a. Against a surviving executor, IS. an executor de son tort, how sued, l t. 25b. Against heir and devisee, 14. 26. Against hundredors, 14. 27. By a husband and wife, 14. 28. Against husband and wife, 14. 29. By or against an infant. 1 1. 29a. Another form, 1 I. 30. By an informer, 15. 31. Against peers and members of parliament, 15. 82. By or against a surviving plaintiff or defendant, wl curred before writ issued, 15. 33. Commencement of declaration wh< issuing of the writ, 15. 34. The like, where one of the defendant 35. Declaration by judgment credit debt in his 1 1 .- 1 1 1 ' 1 - . i ,; . DECREE OF COURT OF EQUITY. >■ Ji 780 INDEX. DEED. See Bankruptcy, 322; Bond, 87; Composition, 364. deft nee that contract arose upon a deed, 369. defence that remedy on a simple contract has merged in a subsequent deed, 369. tvliere deed is collateral to contract, 369. covenant not to sue not pleadable in bar, 369. DEFAMATION'. See Libel and Slander, 538, 658. DEFECT OF FENCES. See Fences, 516; Replevin, 683. DEFENCE. See Trespass, 609, 696. DEFENDANT. See Parties to Actions. DEL CREDERE AGENT. See Agent, 46, and note (e). not necessary his engagement should be in writing, 46, note (e). indebitatus count for his commission, 38, note (p)> DELIVERY OF BILL OF EXCHANGE. See Bills. DEMAND. See Particulars of Demand; Trover, 618. DEMISE. See Landlord and Tenant. DEMURRAGE. common count for, 98, 117. when this count suffices, 117, note (c). ichen special declaration necessary, 117, note (c). when master can sue for, and ivhen owner must, 117, note (c). meaning of term, 117, note (c). when consignee or indorsee of bill of lading liable to be sued for, 117, note as to demurrage on railways, 117, note (c). as to demurrage generally, 117, note (c). DEMURRER, 24. form of, to declaration, 25. form of, to part, 25. to a plea, 26. joinder in demurrer, 26. error in date of pleadings not ground for, 1. token no venue is laid in declaration, 2. when the plea is defective, 17, note (&). time to plead after amendment, 18. general, is an issuable plea, 19. and pleading to same matter, 21, note (C). special demurrers abolished, 24. judgment on, 24. costs on, 24. marginal note, 25, note (b). demurrer book, 25, note (b). points for argument, 25, note (b). trivial and frivolous, 25, note (6). to issuable pleas, 25, note (b). must be confined to defective part of pleading, 25, note (c). consequence of not so confining it, 25, note (c). notice to join in demurrer, 26, note (d). plaintiff cannot add joinder for defendant, 26, note (r/). will lie to declaration for omission of " money payable, Src." 33, note (a). when to the ivhole declaration, 25, note (c). how plea, good in part and bad in part, to be construed on demurrer, 25, note (c). who to begin an argument of, 26, note ((Z). DE SON TORT. See Executors and Administrators. DETENTION OF GOODS. See Trover and Detinue, 622. DETINUE. See Trover, 622, 727. DEVIATION. See Insurance, 412, Form 9, and note (g). DILAPIDATIONS. See Landlord, &c; Rector, 591. DIRECTOR OF COMPANY. See Public Company, 225, 451. DISCHARGE. See Accord, 288 ; Bankrupt; Payment, 488. plea in action for escape that debtor was discharged by bankrupt commissioner, 650. INDEX. 781 DISCHARGE.— Continued. of bankrupt, validity of, to ! ' visions of the bankrupt act, '■'■it- certificate of , madt conclusivt under V I Si ' DISCLAIMKi: OF A PATENT. S* Patbmt. DISCOUNT. Srr I'.n OS. DISHONOR OF l'.ILL. See Bn i 880. DISTRKSS. trespass* r, ab initio, 503. damage feasa nt, 508 . for rent', U Geo. 2, c. 19, 508. appraisers not to be joined in action ij m broker's authority to distrain, 508. as to adding a count in trover, 504. requisites to justify levying and distress, 504. rw/Ats "/' " mortgagor and his assignee, 504. ajjiriiiahm; of tenancy by distress, 504. ?««y oe ??mc/e tet&in .*■<> //»<"'//.<, 504. executors of a lessor may distrain, 504. breaking open outer door, 504. as to tfoor/s o/ ambassador, 504. <7O0(/s in ^a«TO are exempt from, 504. aooc/s o/ a stranger, 504. w/jen landlord gives general authority, 504, /or taifctti^ excessive distress, 505. /or distraining and selling without notice, 507. for not selling for the best price, 508. for distraining beasts, £c. fAere &«'«£ o"««- *"./'"'" " r **" '• '' " /or distraining tools of trade, 510. jsiea o/ aenerai mwe % landlords and bailiffs, 287, mi. tender o/ amends, 645. w/ien special pleas of justification should be pleaded, 645. replications, 645. new assignment, 671. C ° W t'For distraining, &c. where no rent was due to WOO** doobk value, 505. 2. For taking an excessive distress, 505. 3 For taking an excessive distress for a P°oM»te, 4 For distraining and selling without ootid y tl I. int. but brokers employed by the plaintiff and d< eluded in the boughl and Bold note 2. Plea to an action for ool paying for iz< m ».1~. p taken, and for nol accepting tht sample, and that the brokers acting for ; mistake omitted that term from the 784 INDEX. EQUITABLE PLEAS.— Continued. defendants, in ignorance that the goods were not equal to sample, took delivery of part, but refused to accept the residue, which was still under the control of the plaintiff, and had paid into court, upon a count for goods sold and delivered, the value of the goods taken, 375. 3. Plea to an action on a charter-party, that by mistake, contrary to the intention of plaintiff and defendant, it was signed so as to make the defendant, who was only an agent, personally liable, 375. 4. Plea to an action for breach of a covenant not to prastise as a sur- geon within a certain district — that the practising was in a part of the district which had been treated as not within the district, and never intended by the parties to be included in the covenant, and which was so included by mutual mistake, 375. 5. Replication to a plea of release, that the release was by mistake worded to include the claim sued on, 376. 6. Replication in an action by a co-surety for contribution, to a plea of discharge by the plaintiff of the principal, that the agreement by which it was alleged the principal was discharged was worded by mistake so as to include the claim in respect of which contribution was sought, and that the true agreement had been performed, 376. Set-off. 7. Plea of a set-off of a judgment debt recovered in the name of a trustee who never had any beneficial interest in it, 376. 8. Plea of set-off of money in the hands of the plaintiff equitably as- signed to the defendants with the plaintiff's assent, 376. Principal and Surety. 9. Plea to an action on a promissory note, that the defendant made the note as surety only for another maker, to whom the plaintiff gave time, 376. 10. Plea to an action by an indorsee against the acceptor of a bill for the accommodation of the drawer, that the plaintiff, by entering into a deed of arrangement, had given time to the drawer, 376. 11. Plea to an action on a promissory note, that the defendant joined in it as surety for E. , the other maker, and that the plaintiff, know- ing this, agreed that he would call in the note within three years, but, having omitted to do so, he lost the means of obtaining pay- ment from E., who had since become insolvent, 376. 12. Plea to an action on a promissory note, that the plaintiff was surety only for a loan by the plaintiff to one E., and that the plaintiff had neo-lio-entlv sold goods sufficient to cover the loan under a bill of sale which, together with the note, had been given as security for the loan, 377. 12a. Plea to an action on a bill of exchange, that bill was accepted by defendant as payment for goods agreed to be sold and shipped, &c. by the drawer to the defendant, that part only was shipped, that drawer paid plaintiff's amount of bill, and that defendant has a set-off against drawer, 377. 125. Plea to an action for not letting, &c. that the purposes for which &c. were not legal, 377. 13. Plea to a bond of guaranty to the extent of £100, to secure a bank- ing account, that advances were not to be made beyond that sum, and that greater advances had been made, 377. 14. Plea to an action on a guaranty for the completion of work, that the completion had been prevented by fire, and that the plaintiff had contracted with the principal to insure against fire, but had not done so, 377. Generally. 15. Plea, to detinue for deeds, &c. against the registered officer of a banking company, and equitable mortgage to secure advances to a third party, 377. INDEX. EQUITABLE PLEAS. — Continut d. 16. Plea, to an action on a covenant in :i m principal money and interest, thai tin been sola l.y the plaintiff under tb( realized to pay the debt, Si 17. Plea, to a like action, thai defendant and wil gaged the property, being the wife's, and payoff a debt to die defendanl contracted by i marriage, and thai the plaintiff, aa the wif< titled in the equity of redemption, a 18. Plea setting up a -rant of i cheated property, and contrary to good faith, 878. 19. Plea, to an action For obstructing lights, was occasioned by tin- pulling down of old buildings and I ing of new, at a greal expense, with the know and consent of the plaintiff, 878. 20. Replication, that the plaintiff acquiesced, upon tin- faith of I representations made bj defendant, '■■■ 21. Plea, to an action on an agreement, for non-paymenl of tin- pri bark, that plaintiff was merely an agent, and thai the defend- ant agreed to pay at a rate mentioned in th( assurance that he should only lie called upon to paj a a rl in i i and the actual expense incurred, and that tin- di with the principal, who had notice, on the real ti tract, 378. 22. Plea, to an action by a joint st.uk company for calls, a performed agreement between tin- di fendant, v. a director, and the other directors, that In- Bhould transfer his shares to the secretary, fur the benefit "t to pany, 379. 23. Plea, to breaches of covenanl fm- non-paymen1 of premiun bad accrued <.\\tr after certificate in bankruptcy . <■■•■ a j to secure a debt, that the plaintiff proved a greal par; .a' • under the petition, and elected to take the benefit of it. 24. Replication to a plea of untrue statement in an policy that the policy was effected upon tin- faith stating thatjiolicies should be indisputable c\c j,: j 379. 25. Replication to a plea of release, thai it was > nominal plaintiff and the defendant to defeat the claim, for whose benefit the action was brought EQUITABLE PLEAS OF LIEN. See Tboveb am- Detini e, 728, lit. EQUITY. See Judgment, 176, 177. ESCAPE. See Sheriff, 595. Effect of not guilty, 649, Pleas. 1. To an action against the sheriff for an escape or for not takil on mesne process, that he was not indebted to p lain ti ff , I 2. Plea, to an action against the sheriff for an escap ■ he took a bail bond which he assigned to the plaintiff, i 3. Plea, that the escape was by the fraud, &c. of the a ment, 650. 4. Plea, that the escape was without the know!. that the debtor voluntarily returned into custodj 5. Plea, showing that the custody of the prisoner was not L 6. Plea, that the debtor was discharged by a bankruptcy under 5 & 6 Vict. c. 116, and 7 & 8 Vict c. 7. Plea, that the debtor produced a certificau under bankruptcy act, 1861, whereupon defendant disch and replication, 650. ESTATE. See Slandek of Title, 549, 1 ESTOPPEL, 379, 651. what is meant by, 379. vol. n. 50 786 INDEX. ESTOPPEL. — Continued, are three kinds of — by matter of record : by matter in writing : by matter in pais, 379. matter of record or toriting conclusive tohen pleaded, 380. matter in pais need not be specially pleaded, 380. appearing on face of pleadings, 380. does not bind a stranger, 380. deed bar to an action, 380. effect of recovery of judgment, 380. as to the manner and form of pleading estoppel, 380. when and how far it must be pleaded, 380. Pleas. 1. Commencement and conclusion of a plea of matter of estoppel, 381. 2. Replication by way of estoppel to a plea, 381. 3. Plea, by way "of estoppel, that tbe plaintiff brought an action against the defendant for the same cause of action, and that the defendant had judgment, 381. EVICTION. See Landlord axd Tenant; Replevin, 685. plea of, 426, Form 13. plea of partial, 427, Form 14. for law, see notes to above Forms. EXCEPTION. in a lease, 185, note (). bound (hough not nam d in when they may be sued, 120, 121. r»< as to contracts requiring personal pi rformance. skill 120. of joint or several, or joint and several cc ,1 20, L21. a/Z ?/je executors must be sued, except, frc. 1 - 1 . executor de son tort, 121. wAo is, anr/ /iow sued, 14, 121. mew/ be joined with lawful executor, but nut until adm 121. w^a< acta sufficient to charge a person as executor de son tort, l 21. providing for funeral or funeral expi n tate is not, 121. agent of the executors, who afterwards prove the will _'l. executors only liable to extent of assets, 121. when liable for debt of testator, 121 . /*as $e same right of action for injury to personal as to injuries resulting in death, 514. damages, 514, 515. cannot maintain action for assault, 8rc. 515. when death of plaintiff" or defendant does not a] commencements and conclusions of declarations by and against, 7, 8, 13. Counts by and against. 1. By an administrator, 7. 2. With the will annexed, 7. 3. Of goods left unadministered, 7. 4. During the minority of an executor, 7. 5. By husband and wife administratrix, 7. 6. Against an administrator, 8. 23. By an executor, 13. 24. By a surviving executor, 13. 24a. By an executor of an executor, 13. 25. Against an executor or husband and wife executrix. 25a. Against a surviving executor, 13. Counts. In contract. 1. Common count by an executor or administra accruing to the deceased, with an a< I with tin as executor, 121. See 122, note (/). 2. Another count, alleging the debt to 1"' payable to tl a consideration moving from the deceased, 122. 3. By an executor or administrator, him after the death, 122. he may so dt '"" clean be assets, 122, aote (/). as for goods sold by him which were tl. note (/). or were acqum d by the executor in managing ness, 122, aote (/)• for clothes ordered by ! note (/). for work done, materials pr ceived, account stated, 122, n but the executor or administrator may, in or not, at his option, 122, no 7>> INDEX. EXECUTORS AND ADMINISTRATORS.— Continued. count on a demand as executor or administrator may be joined with another in his own right, when, 122, note (/). 4. Bv an executor, for use and occupation, to recover a quarter's rent, where the testator died during the currency of the quarter. 122. 5. By executors, to recover the value of work, &c. done partly by the testator, and finished by the executors after his death, in pursu- ance of defendant's contract with him, 123. it is necessary to declare specially in such case, 123, note (ni). See 122, note (/). 6. Against an administrator, for not receiving goods sold to the intes- tate. 128. 7. Common count against an executor or administrator alleging a debt from the testator, with an account stated by the defendant. 123. 8. Second count, laying the debt by the executor on a consideration moving from the deceased, 123. 9. Against an executor, on a cause of action arising after the testator's death. 124. in what cases an executor may be sued as such, and in what he may not. 124, note (o). what counts against may be joined, and what may not, 124, note (o). 1}. Against an executor, on his promise to pay a sum of money in con- sideration that the plaintiff would rescind a contract for the hire of a carriage, made with the testator, 124. 11. Form of an indebitatus count against an executor for a legacy which the executor had retained by agreement with the legatee, 124. when an executor may be sued at law for the recovery of a leg- acy, 124, note (p). in Massachusetts every legatee may recover his legacy in an action, 124, note (/>). which may be brought upon demand after one year succeeding executor's appointment, 124, note no limit to the time for bringing the action, 124, note (/>). when action lies for legacy in Connecticut and New Hamp- shire, 124. note (p). 12. Against executors, for use and occupation of premises held by them as executors under a demise to the testator. 125. 13. Bv husband and wife, administratrix or executrix, 125. In tort. 1. Bv an executor or administrator for an injury to the real estate of the testator or intestate, 515. 2. Bv an executor for trover and conversion in the testator's lifetime; &C. .".16. 3. Bv the executor of a passenger who was killed by the negligence of the defendants as carriers of passengers, 516. Pleas. 1. Plea that plaintiff is not executor or administrator, 382. 2. Plea that defendant is not administrator, 382. 3. Plea that defendant is not executor, 382. 4. Never indebted, 383. 5. Plea by an executor of never indebted except as to part; confession thereof; and plene administravit, 383. 6. Plea of plene administravit, 384. General observations thereon, 384. 7. Replication joining issue, and award of venire, where the debt is not denied, and the plaintiff joins issue on defendant's plea. 385. 8. Replication, that defendant received assets after the commencement of the suit, 385. 9. Issue, where there is a plea denying the debt, besides plene administravit and plaintiff takes judgment of future assets, upon the latter plea, 385. INDKX-. EXECUTORS AND ADMINISTRATORS. C 10. Plene admiimtravit prceler, 886. 11. Flea of an outstanding judgment t or specialty and ph ne administravil prceh r, 386. 12. To a plea (if plene administravil and an outstanding the testator, — replication, thai the testator satisfied and thai it is fraudulently kfpt on foot, 887. 13. Plea of judgment recovered againsl an executor, and pay i by him after action brought, 887, 14. Replication thereto, that the judgment is fraudulei 15. Plea of retainer by an executor for his own debt, ■ 16. Replication thereto, denial of the debl retained fo 17. Form of judgment by cognovit against an execute 18. Plea, to an action by an executor, that the testator « i i • - ■ 1 ]•• I of the agreement sued on, 19. Plea to an action charging the defendant for rent term, that the defendant became assignee onlj ir, and l the premises yielded no profit, and plene admini 20. Plea to a like action, that the defendant became assignee onlj ai idmin- istrator, that the premises yielded onlj , and prceter, 390. Avowry in replevin by executors, for rent due to theil EXONERATION. See Accord and Satis i- a. noi Keli lu, 4 scinded Contract, 457. EXPULSION. See Trespass. after peaceable entry, must be a request to leave, 700, note (c). pleas justifying, see Trespass, 699 el seq. EXTENT. count for causing, to issue against plaintiff's goods, 554, Furin 12. EXTORTION. form of declaration for, 125. should state what ought to be taken, and whal was the • action against bailiff for, 51, Form 2. for making extortionate charges and selling goods for them, for libel, charging a proctor with, 546. against sheriff, for, 600, Form 17. summary remedy against a sheriff for, 59 EXTRA VIAM. new assignment of trespasses, 671. FACTOR. See Agents; Brokers. sales by, when may be made on credit, 42, note (z). giving credit, when authorized to sell only for eas '.'/ of, 42, DO I form of declaration for selling contrary to orders, 1 -'•">. plea, that sale was made after notice no defence, 1 25. plea to an action for goods sold, that the defendanl bought them d plan. factor as principal, and set-off against him, 466. plea of lien under factors' act, 804. FAILURE OF CONSIDERATION. See Bills Oi Exohan. pleas of, to bills of exchange, 343, Form 36 el seq., and note (tt). FAIR. See Market, 558. .... , ■ , , , , . replication to a plea of right of way, justifying the removal of , that the obstruction removed was a booth winch plaintiff had 8P under a custom, &c. 818, Form 14. FALSE IMPRISONMENT. See Trespass po thi Person, 610. payment into court may not be pleaded vn aett ,447. what is it, 613. FALSE REPRESENTATION. See Fraud ; WARRANTY. FALSE RETURNS. See Sheriff, FARMS. See Landlord and Tenant. FARRIER. count against, for not using care about a horse, l iB. may be sued for refusing to shoe, 126, note (q). 790 INDEX. FABBIER.— Continued. may recover his bill under common count, 126, note (' claim and a suspi nsion of prod i dings for a givi n firm ,181, i there need not be a total abandonrru rU of wit, IS when no time of' forbearanci is rm n promise to forbear " for a little timt ' as to the declaration in ref ,181, ooti what must appear under a plea offorbt aram 847, note ({/). effect of non assumpsit, 891. plea of < vistence or validity of debt must that plaintiff did not forbear, 891. ordinary form of count in consideration tha °"'l!"On defendant's promise to pay debl and '1"- pW pend an action against him, 181. 2. Against the obligor of a bond on the forbearance bj thi him, and law, 132. 3. Similar forms on the forbearance by the grai 4. Against an executor on his promise to pay a b forbearance, 132. Pleas. 1. Non assumpsit, 391. 2 Denial of the debl forborne, 392. 3. Plea that defendant did nol forbear, 392. 1 Plea denying that plaintiff had an) ca fendant, 392. VO-RCTBLE ENTRY. See Trespass to Realty, 719. FOREIGN ATTACHMENT, 392. S« A, , > n >■„; Di *i FOREIGN BILLS. See Bills of Exch w.i FOREIGN JUDGMENT. See Judgment, 1 « 6. irnRVFlTTTRE 430. See Landlord and Lenant. F0 ^Son by lessee a,:,i„ S « l,is ."..l-H tor « -1-K - P of life premises by ,,- of iefeadu>l taring • FORGERY. . S^!^::£^ , „„, ,,i ;iil „i,n,,. i 10. FORM OF ACTION. different forms may be joined, exceptions, 27. characters of when action partakes of the < li.ua, .. FRAUD. See Statute of 1 aAl ds, ti'/ia< & is, 392. 792 INDEX. FRAUD. — Continued. avoids a contract, 392, 518. of agent, 392. guilty party cannot take advantage of, 392. acquiescence by party aggrieved, 392. loth parties girilty of the fraud, 393. misrepresentations of material fact, 393. concealment, 393. ignorant person induced to execute an instrument under a misapprehension of the nature of its contents, 393. must be specially pleaded, 393, note (y). when action lies for, 518. gravamen of the charge, 519. false representation made to one and communicated to another, 519. false representation to knowledge of party making it, 519. false representation which leads to giving credit for goods, 519. presumption that party relies upon false representation, 519. false representation made for a deceitful purpose , 519. made dishonestly, or with reckless ignorance, 519. where plaintiff choose to act on his own judgment, with knowledge of facts, 520. false representation of authority by agents, 520. contract obtained by, voidable only, when, 520. when void, 520. false representation made bona fide, 519. when made by directors, 520. by agents, 520. as to use of trade-marks, 520. in obtaining a deed, 520. when property passes after, 520. when not, 520. fraud of testator, answer to action by executor, 520. false representation as to character of third person, 526. effect of not guilty, 652. damage, 652. evidence of, puts holder of bill or note to proof that he is holder for value, 341, note (p), 345, note (z). Counts. 1. Against the seller of goods for a false warranty, 521. la. Against the seller of goods for falsely representing himself to be the owner, 521. lb. Against seller of chattel for false representation of soundness, 521. 2. For using fraudulent means to prevent the plaintiff from discovering the unsoundness of a horse sold by the defendant to the plaintiff, 521. Form for falsely representing a ship to be copper fastened, 521. For fraudulently concealing defect in property sold, 521, note (g). 3. For deceit in selling a picture as painted by a particular master, which it was not, 522. 4. For inducing plaintiff to purchase defendant's practice as a surgeon, &c. by misrepresenting the extent of the business, &c. 522. 5. For falsely representing to the purchaser of a lease and fixtures that tho latter were the vendor's property, 522. 6. For selling to the plaintiff a policy of insurance, which the defendant had fraudulently effected on the life of another person (his debtor), and which the insurance office refused to pay, 523. For falsely representing the business of a public house, inducing the plaintiff to purchase of the defendant, 522, note (/). on the sale of a baker's business, 522, note (l). For falsely representing land sold to the plaintiff to be unincum- bered, 522, note (k). For inducing plaintiff to buy, by exhibiting false samples, 521, note (d). or by falsely representing that the property sold agreed with report and samples, 521, note (d). INI. I X. FRAUD. — Coniiiuo',1. For manufacturing :i rope for a specific hut broke, 521 . note (■ taken a an illegal consideration, 359. contracts and agreements relating to, void, •'195. money lent, where game not unlawful, :>95. debts contracted abroad recoverable here, 395. actions against stakeholder for stakes, 39 what is betting place, 395. what are lawful games, 395. Pleas » 1. To money had, &c. that it was deposited with d result of an illegal lottery (a Derby BweepBtakei 2. That the contracts were time bargains in bL c. 109, 396. 3. Plea to a bill, that it was given on a gaming considerao GAS RENT. plea, justifying distress under a justice's warrant, for non-payment and replication thereto, 648. GARNISHEE. See Attachment of Debt, 801. declaration against, by judgment creditor, 16. GENERAL AVERAGE. See Insurance. ivhat is recoverable as, 133 note (/). declaration by owner of ship against owner of goods for, 138. common count for, 134. GENERAL ISSUE. See Pleas, 274. nunquam indebitatus, 274. plea of, 284. non assumpsit, 284. non est factum, 285. plea of, 286. by statute, 286. plea of, 288. not guilty, 635. non cepit, 684. non detinet, 728. who mart give special evidence under m actions oj mmmAmm GOODS. See Fraud; Illegal Conbidebation; 8ai l to Goods; Trover and Detinue. GOODS BARGAINED AND SOLD. 28. S Sale oi GOODS SOLD AND DELIVEUKD. •_•:. - << - 796 INDEX. GOOD-WILL. as to the meaning of the term, 134. contract for transfer of 134. restraint of vendor in equity, 134. agreement for general restraint of trade bad, 134. partial restraint good, 134, 135. must be founded on good consideration, 134 adequacy of consideration not a restraint of the reasonableness of the restraint, 135. time and space, 135. in any of the United States, except two, held good, 135. agreements in restraint of trade are divisible, 135. how distance measured, 135, 136, note (?«). agreement to sell the secret of making a certain medicine, binding vendor not to disclose, 135. Counts. 1. Common count, 135. 2. By purchaser of the good-will of a business against the vendor on his covenant not to carry on business within a certain limit as to dis- tance or of time, 135. 3. On an agreement not to exercise a trade within certain limits, 136. Other Forms. special count for the price of good-will, 135, note (h). and see, 136, note (q). GOVERNESS. action for libel for giving a false character to, 547. GRANT. See Ancient Lights, 637; Ways. vendor cannot derogate from his own, 480. plea of lost grant, 739. plea of express grant, 739, Form 7. GROUND RENT. See Landlord and Tenant. count by lessee against lessor for breach of covenant for quiet enjoyment, alleg- ing a distress by the ground landlord, 200, Form 38. count by under-tenant against landlord on an implied contract to indemnify him against pavment of ground rent. 155, Form 9. GROUNDS OF DEMURRER. See Demurrer. GROWING CROPS. See Landlord and Tenant. common count 117. count by an outgoing against an incoming tenant, 117. GUARANTY. statute of frauds, 137. mercantile law amendment act, 137 when it must be declared on specially, 137. to answer debt, Sfc. of third person must be in writing, 137. must contain names of plaint iff' and defendant, 137. need not state consideration, 137. when a guaranty does not come within the statute, 137. where the effect of new pro7iiise is to extinguish the old debt, Sfc. 137, 142, note (i). to or for a firm, ceases on change of firm, 137. where guaranty partly good and partly bad, 138, note (?•). continuing, 138 note (s). averment of performance of conditions precedent, 139, note (b), 141, note request to and non-payment by the principal, and notice to the defendant, whether necessary averments, 138, note (u). effect of general issue, 397. performance of conditions precedent shoulel be specially traversed, 397. effect of alteration in, 399, note (7). Counts on. 1. On a guaranty for the price of goods to be supplied to a third person, 138. INK GUARANTY. — Continued. \d. On a guaranty, for 1 1 » < - due fulfilmi 16. On ;l ttinuing guaranty for the runnii L88. 2. On a guaranty for the fidelity of a rink i natun of the man " should be described, 189, not as to discharging the guaran mi n/, L89, null- (j). 3. On a guaranty in consideration thai the plaintiff to ;i third person, tin- defendant would !><• a 139. 4. On a promise to <_ r ive :L i,ill for or pay a debl in plaintiff would discharge his debtor ly, l i". 5. By a landlord on a promise to paj him ain third person ami the costs of a distress, in considcrati ll withdraw the distress, l i". 6. Upon a guaranty to bankers thai a third person count with them it' they would "pen an account with 1 * i ■ - note (r p*J 142. 10. On a promise to pay debt and costs, in i Bideration would Buspend proceedings on a cognovit a| i third . 142. promise by defewhint in pun ca sideration of suit bt i">/ finished withi 11. On a promise to pay the debt of another, in consul would "jive up a lien on goods which he held at 'y. l 12. By a receiver in chancery, upon a promise to paj Li- the estate, from a third person, in consideration • I 13. On a guaranty to make up any deficiency ariai mortgaged property, if it failed to realize the -urn costs and expenses, 1 13. 14 On a bond guarantying payment of intei on a policy securing the aame, i n I therefrom, 143. Other Forms. against a del credere agent on his guaranty, •!«;. on a promise in consideration that plaintiff « tained by him on a claim for damages, L45 Pleas. 1. General issue, 397. 2. Flea that the plaintiff did not Bupply the gOC ■ the guarn according to its term-. 3. Plea thai the credil was unre laon il ' 4. Plea that the principal paid the prii 5. Plea thai the guaranty was discha fendanl for a different mode ol dealing, 6. Plea that the plaintiff released the principal, 7. Plea that the principal was indebted 8. Plea of discharge by taking a « (position from ti cation, that it was taken with defendani 798 ixdex. GUARANTY. — Continued. 9. Plea that the guaranty waa altered, by being converted into a specialty without the defendant's consent, 399, and note (q). 10. Plea of discharge by giving time to tbe principal, 399. 11. Plea that the guaranty was obtained by fraud, 399. 12. Replication to tbe plea of time given to tbe debtor, that tbe remedies against the surety were reserved, 399. That a creditor may reserve his remedies against a surety, 399, note (.s 1 ). GUARDIAN OF INFANT. when prochien ami liable to attorney, 59, note (u). in/ant citn only appear by, 653. special admission of, limited, 654. GUARDIAN OF POOR. See Overseers. may sue and be sued, 11, note (r). GUEST. See Ixxkkei-er, 531, 654. GUNS. count for selUng a falsely warranted gun to A. for the use of tbe plaintiff', -which burst and injured plaintiff, 524. Form 9. count for setting spring guns, 583, Form 8. for injury by a gun being intrusted to an unfit person, 583, Form 9. HABERE FACIAS POSSESSIONEM. See Sheriff. count against sberiff for not executing writ of, within a reasonable time, 599, Form 13. HATCH. count for removing, wherebv plaintiff could not work his mill, 630, Form 16. HEALTH, PUBLIC. See Notice of Action, 674. HEDGES. See Fences and Party Walls. HEIR AND DEVISEE. when heir liable, 144, note (/>), 144, note (n), and 11 $f 12 Vict. c. 87. devisee only liable when debt due before death of testator, 144, note (fl). statutes relating to remedies against, 144, note (//). Counts by and against. ao-ainst heir on bond of ancestor, 143. against beir and devisee on covenant, 144. Pleas. by an beir sued on tbe covenant of bis ancestor, of riens per descent, 400. replication to last plea, 400. by a devisee sued on tbe covenant of bis testator, of riens per devise, 400. HIGHWAY. See Negligence, 564; Notice of Action, 675; Way, 631. surveyor under 5 #* 6 W. 4, c. 50, is not liable for non-repair of, 527. trespass on, 616, 1 Chitty PI. 194, and note (x 1 ). avowry in replevin for a highway rate, 685. HIRE. See Bailee, 67. degree of care required of bailee for hire, 144, note (s). hirer of horse bound to discontinue the use of it if it becomes exhausted and refuses food, 144, note (s). not responsible for wrongful treatment of a regular farrier called by him, 144, note (s). aliter, if he himself prescribes for the horse, 144, note (.s). responsible for accident if he goes on a different journey, or uses for dif- ferent purpose, than that hired for, 144, note (s). i/i this bailment burden generally on bailor to show negligence, 144, note (s). 1. Common count for, 144. 2. Count against hirer for carelessness, 144. 2a. Immoderate driving, 145. 3. Count against an omnibus proprietor for refusing to receive omnibuses ac- cording to agreement, 145. 4. for employing vessel let to bire, in an illegal manner, 146. effect of general issue, 401. plea to an action against hirer for carelessness, denying, 401. HIRING. See Master and Servant. HOLDING OVER. See Landlord and Tenant, 193. END HORSE. See Warranty, 256, i common count for meat, 16, 146. duty ofagisU r, 46, qo! breaker, trainer, .w. lien of, 7' HOTEL KEEPER. Set [nnkj i pi a, BOUSE. Se< Tresra 16. HUNDRED. damage by rioters, 527. in ocrions against, writ may picas in actions againBt, for damage done by riotoi declarations against hundredors, 14. HUNTING. See Shooting, 608; Tri si plea of justification of entrj into a close to hu a freeholder, whose title accrued before plainti rm 14. plea, in trespass for hunting, &c. on plaintin . justify plaintiff's landlord under a reservation of th( Form 1. HUSBAND AND WIFE. See Coverture, 868; 'I Property, 610. General rights and liabilities. husband liable with wife for contracts of husband may sue with wife on sola, 146. if husband dies before reducing chose in a husband may enforce contract's ofwij I into during interest of husband where wife meritorio\ married woman is not liable at bm- on contract by ' l 7. to render husband liable wife must be his ag nt t 1 17. divorce destroys implit da 117. presumption of agency during cohabitation, 147. liability of husband on bill signed by wift . 147. liability of husband for goods supplu d to wifi ,117. cohabitation of woman, not wife, 1 17. After separation. presumption of agency ceases, 147. parting by mutual consent, 117. elopement or adultery of wife discharges husband, 147. Parties to actions. As plaintiffs. during coverture woman cannot be sole plainti J, 147, ] husband civiliter mortuus, l 18. when wife must be joined, 1 18 and 7. when wife may or may not ', 148. effect of non-joinder on set-off, 1 18. non-joinder, plea of, in abatement, 1 18, misjoinder, how taken advan husband becoming bankrupt, I joinder of claims by husband and < tract, 148. where wife can sue after death oj hu ■ ■ 18. As defendants. husband must be joined, 148. when husband attainted, Ice. 148. when husband a for when wife pi ' under 20 x 21 1 rt. c. B5, I after death of husband, I 19. after death of wife, 149. marriage pendente lite d when marri, d woman may be tak effect of general ixsvu "< action) •"'■ when dissolution of marri M>1. married woman must plead in JH when husband liable in i . cUoJ w, . 800 INDEX. HUSBAND AND WIFE. — Continued. when husband has right of action in tort in respect oficife, 528. as to frauds oficife, 528. discharge of husband after wife's death, 528. after divorce a vinculo, 528. husband bankrupt, when assignees must join with wife, 528. action for crim. con. abolished, 528. may sue and be sued in actions of tort in 3Iassachusetts, as if sole, 528. commencements of declarations by and against, 7, 13, 14. Counts. In contracts. 1. By husband and wife, for goods sold, &c. by the wife, and account stated with her before marriage, 149. 2. Second count, for money payable to the plaintiffs on a consideration moving from the wife before marriage, 150. 3. Count upon accounts stated by the defendant with husband and wife respecting moneys due to the wife whilst sole, 150. 4. By husband and wife, for the personal skill and services of the wife during coveture, 150. 5. By husband and wife, administratrix or executrix, 150. 6. By husband and wife, on a bill drawn by and payable to the wife before marriage, against the acceptor, 150. 7. Against husband and wife, for goods sold to her, &c. before mar- riage, 150. 8. Against husband and wife on a bill accepted by her before mar- riage, 151. 9. Against husband and wife, on a judgment obtained against the wife, 151. 10. Against husband and wife, administratrix or executrix, 151. In tort. for enticing away plaintiff's wife, 528. Pleas. In contract. general issue, 274, 275. plea of husband's discharge under insolvent act, 401. plea of wife's discharge durn sola, 401. IDENTITY. of plaintiff with party suing, 3. of defendant as acceptor of bill, 332, note (t). plea to an action on a bill of exchange, that the drawer (who indorsed to de- fendant) and the plaintiff were the same persons, 348, Form 51. IDIOT. must sue in person, 4. ILLEGAL CONSIDERATION. See Gaming, 395. must be specially pleaded, 401. plaintiff's participation in illegality must be shown, 402. is compounded of law and fact and therefore traversable, 402. violation of statute, 402. every contract tainted with is void, 402. contrary to public policy, 402. to a statute, 402. pari of consideration illegal, 402. illegality may be talcen advantage of by either party, 402. evidence of, in bill or note, puts plaintiff to proof that he is holder for value, 341, note (p); 345, note (z). Pleas of. 1. Plea to a bill of exchange, that it was given in pursuance of an illegal agreemenl between a petitioning creditor and a bankrupt, to abandon the prosecution of the fiat, 403. 2. Plea to a note, that it was given for money lent to game with, 403.^ 3. Plea to an action by the transferree of a banker's check, that it was ini»i:x. ILLEGAL CONSIDERATION. given to an intermediate part) on .1 gambll plaintiff had notice, 108. 4. Plea to an action for m y lent, that il illegal contract to abandon a petitii to parliament, and for other ill. 408. 5. Plea i" a declaration for not openi ig a thai the theatre was « ithin i went) mi and that it waa not in Westmi resided, and therefore waa ill<-_r:il under th< 6. Plea to a declaration for work done, that i contract, contrary to the building act, I 7. Plea to an action for use and occupation, tl deposit night-soil on, within certain limits prohibi 403. 8. Plea to an action on contract, that the goods were - M i 403. 9. Plea that a promise to pay money ■■ an offence of a public nature, LO I. 10. Pl«'a that, a note was given to secure money li i jobbing wagers, 404. 11. Plea that the sale and removal of g Is was illegal, i was taken out under the excise laws, 104. 12. Plea to an action for work, &c. bj a London brak licensed, 104. 13. Plea of an illegal agreemenl to antedate the indentun apprentice, in order to make- it falsel} appear that b< ha I years, 404. 14. Plea of maintenance, to an attorney's bill, 404. 15. Plea to an action on a bond, that it , illicit cohabitation, 40 I. IMPLIED COVENANTS, for quiet enjoymenl : the word "demise" 200. note (q). "grant," 200, note ( Dbtaht. Express. hi/ parol or deed, 151. when 7nust be writing, 151. statute of frauds, 151. whether promise to indemnify a person if he will t-come sur ■ tht statute, 151. must be declared on, 151. Implied. to accommodation acceptor, 151. by principal to sun ty, 151. by surety to co'Surety, 151. by principal to agt nt, 151. by lessee to under t< nant, 1 52. by assignee of lease to assignor, 152. when common count will lie, 152. to recover cons, qui ntial dan, vol. n. 51 802 INDEX. INDEMNITY.— Continued. as to recover// of costs under an implied contract of indemnity, 152, note (e). effi '■' ofgt in ml issut . -405. what pleas may be pleaded, 405. Counts on. 1. Bv the acceptor of an accommodation bill, against the party for whose use lu' accepted it. for not indemnifying him. 152. A like count by the accommodation drawer of a bill, 152. count by one joint maker of a bill against the other on a covenant to pay the bill, 152. 2. For "not indemnifying plaintiff as defendant's surety in a maltster's bond to tin- crown, whereby plaintiff's goods were taken npon crown prbci founded <>n a judgment upon the bond, 153. 3. Upon a promise to indemnify the plaintiff if he would take up a bill and sue a party thereto, against any costs or expenses he might sustain in consequence of such action, 153. 4. On a promise to indemnify plaintiff against all costs and expenses of an action against A., if plaintiff would try such action before another pending action against lb for the same debt, 153. 5. Upon a promise to indemnify the plaintiff if he would defend an action against him for money (or goods), in which the defendant claimed an interest. 153. 6. On a promise to indemnify plaintiff from personal liability for ex- penses incurred in the formation of a company, if plaintiff would take shares in the company and become one of the provisional com- mittee, 154. 7. For not indemnifying a surety in a bond, in consequence of which the suretv paid the bond to prevent a suit, 155. 8. On an implied contract to indemnify plaintiff as vendor to defendant of mining shares, against future calls on such shares, 155. 9. On an implied contract by a landlord to indemnify his under-tenant against payment of gi-ound-rent, 155. 10. For not indemnifying plaintiff, who assigned a lease held by him to the defendant, against the covenants, and allowing the plaintiff's goods, left on the premises, to be distrained, 156. 11. On an indemnity to a distraining broker, if he would seize goods sup- posed to be privileged, showing damage by actions brought at the suit of the owners, 156. 12. On an indemnity to a distraining broker, given by a landlord on the representation that rent was due from his tenant, showing special dam- age by reason of the tenant bringing an action, 156. 13. On covenants to indemnify, 156. 14. On bonds of indemnity, 157. 15. On bond of indemnity to plaintiff, on his transferring his share in a ship to defendant, against all actions, &c. in respect of debts and claims on the ship, 157. 16. On a bond to indemnify a nominal plaintiff suing for the benefit of a third person, against the costs of the action, if unsuccessful, 157. Other Form. on indemnity to defend vicar's equity suit for tithes, 153, note (g). I*l€(lS» 1. General issue, 284-286. 2. Thai defendant did indemnify the plaintiff, 405. 3. Of payment of a certain sum in satisfaction whilst the damages were unliquidated, 405. 4. Traverse, that the plaintiff was damnified, 405. 5. That plaintiff was damnified by his own wrong, 405. INDENTURE. See Deed, 369; Landlord and Tenant. INDICTMENT. plea that a promise to pay money was made to stifle a prosecution for an offence of public nature. 404, Form 9. counts for maliciously preferring. See Malicious Prosecution, 555. INDORSEMENT. See Bills. 1 N 1 ' 1 X . INDUCEMENT. forms pari of the contra 177. u not put in issut by g> ru ral what it is, 686. ENFANT. must sue by guardian or nextfrit nd, L. prob ill not be granted to, 7, n cm, si ni of, not nect wary to guardian infancy of plaintiff admitted "-/on not trover ed, 1 L, n Contracts made by — 1. Those absoluU ly void, 406. 2. Those voidabh or affirmable, 106. :;. Thost binding, as for ratification most bt in writing, i" ,; - writing must I" signed by infant him not liable for fraudulent equitable replication to plea of infancy, 106. infancy must be specially pleaded, 107, note | when father liablt for necessaries suppli plea of infancy to part of claim, 107, nob can only appear to defend by guardian, 407, not special admission of prochein ami, limited, 654. liable for his tortious acts, 407. commencement and conclusion of declaration by, 1 I. P/eas. 1. Of infancy of defendant, 407. la. Another form in answer to action on pTomissorj nol 2. Replication denying, 408. 3. Replication, that pari of claim is for i remainder, 408. 3a. Another form of replication, 109. 4. Rejoinder, that goods were nol necessarii 5. That defendant confirmed his promise after he I '■"»• INFERIOR COURT. See Repi bvih. declarations in actions removed from, 6. INFORMER. commencement and conclusion of declarations by, 10. INITIALS OF NAME. in a bill of exchange, 74, note (7). INJUNCTION. ' provisions of common law procedure act, 180/, I81 in the case of infringement of pi tl} - only granted to enforce legal rigl demurrer to claim for writ of, 530. continuance of writ of, 530. to restrain sale of photographic • -''0. for obstruction to light, 580. none granted in action of ej* '30. claim for writ of, 581. in an action for infringement ot a patent, 687. INNKEEPER. what is an inn, 581. is bound to receive guests, 581. liability of, under 26 £27 Vict.e. 11. 581. must exhibit copy of act, 532. duty o/, 532. prima facie liability, 582. right of lien on luggage, • '»• liahiliin of. relates to '.'/• 533 - action against executors of, 6 B04 INDEX. [NNKEEPER.— Continued. Co" 1. Against, for not receiving plaintiff as a guest, 533. 2. By :i guesl againsl an innkeeper for the loss of his goods, 534. 1. Plea that defendant was not an innkeeper, 654. 2. Plea that plaintiff did nut bring the goods into defendant's inn, 654. 3. Special plea to counl fur refusing to lodge the plaintiff, that the defendant offered the plaintiff reasonable and proper accommodation, which the plaintiff refused to aecept, 654. 4. Plea of lien by innkeeper on plaintiff's goods, for the amount of charges incurred as guest, 654. INNUENDO. See Libel and Slander, 538. INSANITY. >■■ Lunacy, 436. INSOLVENCY ACT, 409. INSTALMENTS. See Bills; Promissory Notes. indorser may sue on a note payable by, 222, note (o). count against the maker of a note payable by, where the whole sum is due, 222, Form 6. the like, where the times for payment of some have elapsed, 223, Form 7. LNSUPtANCE. See Agent. Public Company. general terms in printed policy, how qualified by written memorandum, 161, notes (/) and («). enumeration of goods, 161, note (7). policy on goods free from particular average, 164, note (h). as to meaning of " particular average,'''' 164, note (K). words •• lust or not lost," 166, note (I), by whom action must be brought, 158. proximate, not remote cause, of loss stated, 162, note (b). averments respecting risks and loss, 162, note (b). presumption when vessel not heard from within a reasonable time, 162, note (b). presumption as to time of loss, 162, note (b). as to what are losses by perils of the sea, 162, note (b). usual marine risks include barratry of master, 162, note (b). or mistake of the master, 162, note (6). ship worm or rat eaten, not loss by perils of sea, 162, note (b). being sunk by another vessel firing into her by mistake, 162, note (b). stranding, seizure, restraint of princes, 162, note (b). policy not sufficient proof of interest, 158. on private ships of war, 158. policies on goods, Sec. from certain places, 158. interest must be such as law can take notice of, 158. what is a sufficient interest to give right to insure, 158. equitable interest in goods or chattels, as mortgagor, 158. interest of a carrier of goods, 158, 171, note (t). a lien on a cargo, 158. goods purchased after a partial loss of them without knowledge of the loss, 159. policy on goods warranted free from capture, Sfc. 164, note (g). on deck goods against loss by jettison only, 164, note (g). on cargo with liberty to barter, 164, note (g). on advance made on account of freight, 164, note (g) averment of interest, 159. when assignor or assignee of policy can sue, 159. separate liability of underwriters, 159. who must be sued, 159. no action against company for discontinuing business, 159. action by member of mutual insurance company, 159. actions against underwriters may be consolidated, 160. damages, 160. double insurances, 160. commencement of risk ll at andfrorn," 160, note (o). when riA£s acquirt d una note (c). ru/e o/ constnit-iirt: loss, giving right to ; note (c). r»to «,7;en joa?7 o/ a car<70 of goods, all of the stroyed, 163, note (c). of different species, 168, note | as to damagt s n coi expenst s that may b ,'. 1 7.;. note (z). effect of gem nil issue, 110. when special pleas necessary, 1 1 0. Counts on policies of insurance. Marine Policies. 1. Upon a policy of insurance upon t' for a total 1m-.. 160. Cotini i m ;i policy insuring agai owner for collisions, 164. on a policy insuring agaii In-- caused by an embargo, 164. 2. Upon a policy of insurance upon average, l 6 I . 3. For a total loss of .pari of the memorandum against particular avi 4. On a policy of insurance upi age loss, l r>. Upon a voyage policy on a Bhip, I 5a. Forms prescribed by practice acl in M for total 1"". 2d. For a parti average, 166. 6. Upon a ti policy of insurance of a ship, K 7. Upon a policy of insurance of a ship :,,. Form prescribed by practi : of cargo by fire, 167. 8. Upon a v.. a a Bhip, paid by ship-owner to owm r 167. 9. Upon a policy of insurance upon a si policy vi rbatim, if policy und 10. Upon a policy of insurance u] and store- for the freight, U 11. Upon a policy of insurance upon advan 12. Upon a 'policy of insur 168. 806 INDEX. INSURANCE. — Continued. 13. Upon a policv of insurance upon freight due under an agreement, 168. 14. Upon a policy of insurance upon advances made on account of freight, L68. 15. Upon a policy of insurance upon passage money. 1G8. 16. Upon a policy of insurance upon bounty to be allowed by the French government to a whaler, 168. 16a. Upon a policy of insurance dependent on the laying of a fubmarine cable, 169. 17. Upon a policy of insurance upon profits to arise upon goods carried as cargo, as upon profits of palm-oil, 169. 18. Upon a policy of insurance upon profits on rice, 169. 19. Upon a policy of insurance upon money lent on respondentia on ship and o-oods, 169. 20. Upon a policy of insurance on a bottomry bond, 169. 21. Upon a policy of insurance upon goods and canal boats, against canal risks ami navigation, 169. 22. For premiums of insurance on ships and goods, 169. Fire Policies. as to ivhat misdescription of the premises will avoid the policy, 170, note <*>• • • « how far words of description are a warranty, 170, note (q). descriptive words usually confined to the time when policy was issue/1, 170, note (q). interest in subject-matter must be shown, 170, note (/). insolvent may insure house he lives in, 170, note (7). goods concealed from his creditors, 170, note (0- . . T . warehousemen and carriers may insure goods in their possession, 170, note (/). mode of describing loss under policy on buildings partly destroyed, 171, note (u). goods feloniously pillaged during afire, 171, note («). policy covers loss by fire occasioned by negligence without fraud, 171, note (w). valued policy, when considered open, 171, note (u). damages and expenses incurred in removing articles insured, 171, note («). as to effect of clause stipulating that disputes regarding loss shall be referred to arbitration, 171, note (v). 1. Upon a policy of insurance upon a dwelling-house and furniture, &c. against an insurance, company, 170. 2. Upon a policy of insurance against fire, giving the insurers an option of reinstatement in preference to the payment of claims, for not properly reinstating, as they elected to do, 171. Life Policies. every one has an insurable interest in his own life, 174, note (a). a wife has an insurable in/' rest in In r husband's //'/'•, 1 74, note (a). a husband bus in bis wife's, 174, note («). a creditor in bis debtor's life, 1 74, note (a). in other cases how far insurer's interest must be pecuniary, 174, note (a), and what degree of pecuniary interest he must have, 174, note at what time the interest must exist, 174, note (a). 1. Against an insurance office, on a policy upon the life of a third person, 172. 2. Upon a policy of insurance on the life of a third person, against an in- surance company, setting out the policy verbatim, 175. 3. By executors against an insurance company, upon a policy of insurance under >i-.A effected by the testator on his own life, 175. 4. By the assignees of a bankrupt, upon a policy effected by him upon his own life, 176. INI.. INSURANT];. Continued. policy againsl death or accidental injury, 1 policy of insurance againsl comma Pleas. Marine Policies. I. X . .11 assumpsit, 28 I. ■_'. Non esl factum, 1 10. S. Denial of plaintiff's interesl in th •I. Denial thai i Ii. I.- were d 5. That the damage was an avei in the policy, HI. 6. Plea to a declaration on an insurance on ■ ship lot by ili>' perils of thi 11. 7. Plea thai the plaintiff did nol incur i : 8. Plea that the ship was not Reaworthy, ill. 8o. Answer denying seaworthiness, I] 9. Plea that the ship improperly deviated, 1 1 2. 9a. Answer thai vessel was nol 10. Pica, thai material facts were eonceale I insurance, 1 1 2. 11. Plea of a custom between the in writers to settle the loss bj waj of die crediting the broker with the amount, 1 1 .'. 12. Plea thai the voyage was illegal, U8. 13. Plea of cancellation ol time-policy, 413. 14. Plea that the claim in the po payment of another policy on the • 15. Plea of a custom thai underwriters an. nd li.i!.! on account of jettison of timber Btowed on 16. Plea thai the >li i j » and goods were 1" were warranted free, 1 18. Fire Policies. 1. General issue, -1 1 8. 2. Denial that the goods were burnt, US. 3. That plaintiff would nol produi policy, 413. 4. That plaintiff did nol 'jive notice .>f the 1 5. That plaintiff iliil nol give in an accounl 414. 6. That defendants were induced t.> make the p 7. That there was fraud in plaintiff 1 8. Alteration of risk, nol communicated lo tl 9. That plaintiff made a false affidavit of b 10. Replication (to Form 9), denying thai the Life policies. 1. General issue, 1 15. 2. Denial of plaintiff's interesl in the lii 3. Plea thai the declaration as to the health of tl> was insured was false, 1 15. 4. Equitable replication to like plea, thai tl the faith of a prospectus stating thai putable except in case of fraud, I 1 5. That the declaration as to health wa Leal attendant of the partj . 1 1 6. 6. Plea that a material fact, vil whose life was insured, H6. 7. That a material fact, \ i/. a known m 117. 8. That the policy was obtained by fraud, H7. 9. That the assured departed beyond K the policy, 1 1 7. 10. That the assured died by hi 808 INDEX. INSURANCE BROKER. See Agent, 38; Broker. lien of , for general balance, 157, note (u). count against, for nol effecting proper insurance, 41, for negligence in effecting policy, 41. gainst an insurance broker, who had undertaken to effect an insurance for plaintiff, statin:; hi* implied duty t<> give the plaintiff notice incase he could not effect it, 157. common count for brokerage, ami premiums paid by plaintiff for underwriting, 157. INTEREST. Set Common Counts, 31. when recoverable, 31, d'2. damages ll should cover, 34, note (i). enactment relating to. in insurance, 160. ' of, in insurance, 161. common count for, 34. verablejrom date of writ only, unless declaration alleges a special demand before that time, 34, note (g). plea denying plaintiff's interest in a life insurance, 415. INTESTATE. ".See Executors. INTOXICATION. plea to an action on a bill, that defendant was drunk when he indorsed, 369. INVENTION. See Copyright ; Fraud ; Patent. I O U. when evidence under common counts, 28, 32. IRONY. See Libel and Slander, 538. ISSUABLE PLEAS. order to plead, issuably not complied with, 19. ISSUES. See Feigned Issue. ISSUE, JOINDER OF, 20. JOINDER IN DEMURRER. See Demurrer. JOINDER OF COUNTS. See Forms of Action. when several allowed, 5, and note (a), ivhen not, 60, note (V). for s< i>n rate causes of action, 27. JOINDER OF ISSUE, 20. JOINDEK OF PARTIES. See Abatement; Misjoinder; Parties. JOINT AND SEVERAL. promissory note, how to declare on, 220, note (c). covenants, 268. release to one of several joint and several debtors is a discharge of all, 456, note (/). JOINT STOCK COMPANY. See Public Company. JOINT TENANCY. See Partners; Trespass, 723. JUDGE AND JUSTICES OF THE PEACE. pica, that defendant is judge of record, 534. doing act beyond authority, 534. aclin'i beyond jurisdiction, 534. tvho are judicial officers, 534. act concerning justices, 11 §" 12 Vict. c. 44, 534, 535. JUDGMENT. final, recovered by plaintiff succeeding on plea in abatement, 17, note (k). prayer of, when necessary in plea, 17, note (/). when, may be signed after aim ml, d <1, claration, 18. for "-on/ if i ilea after order to plead issuably, 19. may be signed when abstract of plea and pleas do not agree, 21, note (<)• JUDGMENT, ACTION ON. in contract, maintainable, 176. not maintainable in superior courts on judgment in county courts, 176. when, of foreign courts, lies, 176. exceptions, l 76, 177. 7io bur to action on foreign judgment, that it shows a misconstruction of Eng~ lisli law, 17 7. not maintainablt on interlocutory orders, §'c. 177. action lies on the final order of the privy council for payment of costs of ap- peal, 177. INI- JUDGMENT, A ( HON ON. writ spi daily indorsi ■!, and as to costs in a 'ion o ■ 177. writ ofn vor, i vi h u chen local and wh n tra count on a judgment of Buperioi mi judgments of forei a, colonial, and ■ count on judgment of a French court, count mi a judgment obtained in I representative of the d 17s. count mi a decree of the tribunal of commi count on a judgment of the Bupreme court count on a Scotch decree, I count (<>r cost - awarded bj a i a suit for divorce, 1 79. count mi a judgment of the court "t' qui count mi a colonial judgment, I on a decree ol a colonial i Pleas. 1. Plea of nul tit I record, I 18. 2. Replication, that there is a record of the ju I ered in the same court .II s . 3. Replication, thai there is a record of th( ered in another court, I 18. 4. Plea thai the judgment was 1 by th< ■ ant in execution on led ther< 5. Replication, thai the ca. sa. was irregular discharged oul of niMu.lv by a judge's ord< JUDGMENT, FOREIGN. action on, wh n it lies, 176. Se< Ji DGMI N on the merit* is conclusivi . i L9. want of jurisdiction or fraud ma 120. so ihatjudgnu nt wa error on fan 'I 11 - pendency of appeal is no answer, 420. is a simph contract debt hen , 121. followed by satisfaction is •- 1 - Pleas. 1. Never indeliteil. I _'". 2. Plea to an action on an Irish judgment, with or had notice ol proc< ss, and did 3. Like plea to an action on a S 4. Like plea to an action on a I 5. Like plea to an action on a judgment 6 Plea to an action on a Scotch de< re JUDGMENT RECOVERED. Sa Estoppi may be pleaded in bar, 121. when form r fudgm nt r on a bill, not followed by sa '■ on a bill, no answer to a -'■ in a count// curl, is a good , ''-'• foreign must be pleaded by way \ '-'• Pleading rules — marginal note: num ssion of: signing jua rule dors not apply, to am ■ lien of attorney on, 57. pleading in 654. 1. Plea of jud°ment n la. answer of judgment rec 810 INDEX. JUDGMENT RECOVERED. — Continued. 2. Pica of judgment recovered by the assignee of a bankrupt, 422. 3. Plea that, in a former action, defendant paid a sum into court, with costs, in satisfaction, 422. 4. Plea thai the debt was due from the defendant and A. B., and judg- ment recovered against A. 15. 423. 5. Plea of judgment recovered in a county court. 423. G. Replication of nul tiel record to a plea of judgment recovered in the same court, 4 23. 7. Replication of nul tiel record 'to plea of judgment recovered in another court. 42 1. 8. New assignment to a plea of judgment recovered, 424. JURISDICTION. allegation, thai cause of action arose within, not necessary in declaration, 6, note (//). when plea, to is a plea in abatement, 16, note (e). pit as to, must be pleaded in person, 16, note (g). JUS TERTII. when defendant may justify under, in trover, 725. when set up by a bailee, 312, note (I). JUSTICES. See Judge, 534; Libel, 538; Notice of Action, 675; Replevin, i;n5. JUSTICES' WARRANT. plea in trespass justifying under, 698, Form 8. JUSTIFICATION .See Distress; Landlord and Tenant; Libel and Slan- der; Replevin; Sheriff; Trespass. LABELS. See Trade-mark, 607. action for imitating the labels which plaintiff put on the reels on which his thread for sale was wound, 609. LACHES ON A BILL. See Bill taken, 342, 350. plea that defendant indorsed to the plaintiff on account a bill upon a third per- son, and was discharged from it by laches, 350, Form 6. LADING. BILL OF. See Carriers, 108, 109, note (<)• LAND AGENT. commission recoverable by, 38, note (p). LAND, SALE OF. See Vendors and Purchasers, 249, 472. LAND TAN. See Replevin. LAND, TRESPASS TO. See Trespass to Land. LANDLORD AND TENANT. See Broker; Distress; Reversion. demise at common law need not be in writing, 179. provisions of statute of frauds as to leases, fyc. 179. all leases required to be in writing must be by deed, 179. forms of action before 1852, 179. contracts under seal must be declared on, 179. venue, transitory, when actions arise out of privity of contract, 179. local, when actions arise out of privity of estate, 180. declaration on a lease must in general show title, 180. when defendant t stopped from denying title, 180. as to the rule that tenant is estopped to deny landlord's title, 180. exceptions to if, 180. mesne assignments should be stated, 180. conveyances should be pleaded as they operate, 181. Use and occupation — when demise not under seal, 181. if demise under seal, must be declared on, 181. when there is a written agreement, it must be produced and stamped, 181. action for, one of contract, 181. not a proper action to try a title, 1 82. when contract will be implied, 181, 1*2. as to inti nded purchaser or lessee, ivho has entered under agreement for sale or lease, 182. where occupies only to time contract goes off, 182. ixin .X. LANDLORD AND TENANT. - where occupu a irln re contra where contn irln re vendor n main when presumption of contract when no action on dt mise, I tenancy without occupation suffici occupation by ■ xecutors, joint U minis, i ■ when defendant under-lets, i or pri raises are burnt, tin U nant pn raises In conn unfit for o< tin y in n let, 18 as to furnished apartment inj against a corporation when no contract und*< • when common count lies for rent ofir> effect of general issue, 124. as to mortgagee's claim befon notice to ■' 24. payment of rent to successful claimar, assignee of mortgagor, 124. action-' iii tort, for voluntary waste, 535. r, mir local, •"'•'! , ». effect of not guilty, 287, 055. right of landlord to expel tenant holding over, 702, i as in liability of owner of bui di\ roof, when let to tenant, 577, not< D 14. Counts. In contract. 1. Common count for use and occupation, l la. Another form, 184. 2. For rent of furnished or unfurnished lod 3. Upon a lease, for rent, 184. 4. By a lessor against his lessee, on 1 rent, 184. 5. By a lessor against lessee, upon a covenant to rep duty of tenant, undi r repair, I B6, note (u). how and when covenant by 186, note («). measure of damages, 186, nol where premises destroyed by note («). circumstances to ' ■ ■ ' 86, D distinction between ■■ in repair, 186, note l tO What run mint tO keep in Hole (./'). as to meaning of term " hal as to th air '" '"' . 188, note I 6. Lessor againsl lessee upon i ceptions, 187. Rn For nol delivering up the premises in covenant fin lease £ repair, con 7 ByllndloXon^anag, mentforre, ' Lt, for not paying his proportion ol 8 Againsta tenant, for nol keepina th. Contrary to his express agreement, not S.FornotuWtbepreunsesmatenan-l, 10. Againsl a tenant for not repairing, sc. wn 812 IN I. EX. LANDLORD AND TENANT. — Continued. rent, but on the same terms in other respects as those contained in an old lease granted by plaintiff's predecessor, 188. 11. Similar form against a new truant, who came in on the terms of the old holding, 189. 12. Against a tenant, for not cultivating a farm according to the custom of the country. 189. L3. A similar form, but alleging specific breaches, 190. 14. On a written demise (not under seal), for not fallowing or manuring, for removing manure, and yielding up the land in a deteriorated e. &C. 190. 15. For breach of a covenant not to plough up or convert pasture-land into tillage, or to pay an increased rent for every acre ploughed up, 192. 16. By lessor against lessee on covenant not to cut down or lop or top trees, under a penalty of £20 for each tree cut, lopped, or topped, 192. 17. By a landlord against his tenant, tor not delivering up possession, whereby the superior landlord recovered double rent and costs against the plaintiff. 192. 18. By a landlord, for double value, against his tenant, for holding over after notice to quit given by the landlord, 193. 19. By landlord for double rent under 11 Geo. 2, c. 19, s. 18, where ten- ant holds over after notice to quit given by him, 194. 20. Lessee against his assignee, for a breach of covenant to pay the rent to the lessor, whereby the plaintiff was obliged to pay it, 195. 21. By a lessor against his under-lessee, for not repairing, whereby a for- feiture was incurred, ami the superior landlord entered, 195. 22. By a lessee against sub-lessee, for not repairing, &c. stating special damage by reason of the lessor having sued the plaintiff for breaches of covenant, 19G. 23. By lessor against assignee, for non-payment of rent, and not repair- ing, 196. As to the liability of an assignee of a lease, 196, note (a). who treated as assignees, 196, note (a). heir, devisee, executor, assignees of a bankrupt lessee, &fc. 196, note (a). mortgagee, when, 196, note (a), in order to charge the assignee, the original covenant with the lessor need not contain the word "assigns," 196, note (a). 24. By the heir of the lessor against the lessee, 197. 25. By the heir of the lessor against assignee of lessee, for not keeping in repair premises held under an agreement not under seal, 197. 26. By the devisee of the lessor against the Lessee, 197. 27. By a plaintiff who was partly devisee and partly heir of a lessor, for increased rent (under a penal clause), for converting pasture-land toother purposes than were allowed by the lease, 197. 28. By the assignee of the reversion in fee against the leasee, 198. •/'J. By the assignee of a lessor, being a termor, against the lessee, 198. By ih'- executor of the Lessor, a termor, against the Lessee, 199. 31. By the legatee of a termor, who-was the Lessor, against the lessee, 199. :;•_'. For not granting a lease to plaintiff, pursuant to agreement, 199. 33. On an agreement, to recover a sum of money agreed to he paid by defendant to plaintiff, plaintiff agreeing, upon payment, to grant a lease to defendant, 200. declaration on an agreement for a lease, implied covenant for title, 200. 34. By tenant against landlord upon a contract, not under seal, of demise to the plaintiff, with an option of purchase, for not making a good till-. 200. 35. For not putting plaintiff into possession, the defendant having let the premises to him by a present demise not under seal, 200. 36. By a tenant against a landlord, for not Bending furniture into a house pursuant to an agreement under which the plaintiff had become tenant. 200. LANDLORD AND TEN IM 9 ■ • Form Bhow ing thai the land 38. By a Li ainsl his 1. j 13 ment, allegin the word " nu nt for quit I t njoyrru nt , ' (?)• as to flu- construction how implu d covi nants for noU' (1/). nu asun of damagt 9 for the I 39. A similar form, but alleging as a brea* b thai | as to what is an < viction, 201 , not< 40. By a tenan! againsl his land! crops, according to the custom of th 41. By outgoing tenant, againsl the ;> 'trad or custom of tin' country, lis which, 1 landlord, the tenant i- entitled 1 42. By a lessee againsl tin' assign) t' the in nni destroying rabbits on a farm, 43. By Lessee againsl lessor, on covenant of the surrender of the term, t" paj for ra inure, 1 valuation, ■_'"■_'. 44. By assignee of tin' lessee againsl the to repair, whereby the plaintiff was injured in pellea to remove, 202. Other counts. by landlord for removing goods i<> prevenl d by landlord on guaranty to pay rent on removal by landlord <>n guaranty to pay n m ij note (c). In tort. 1. By a landlord for voluntary waste, by injuring the | down and removing the plaintiff's ft la. Count for permissive waste in a dwelling 2. Landlord against a tenant for not taking 3. Tenant against landlord for nol indemnifying ground rent. .">37. 4 Bv the assignor against the 1 against the breaches of covenant after 1] 5. By°a tmant, not 1iuu.pI to repair, agai menced repairing, for not doing repairs in a 6. By a lodger against his landlord fi ■<> '» « bell, &<•. 53 Pleas. In contract. , . 1. General issue to indebitatus count for 2. Denial nt' demise by deed, 425. 3. Denial of demise nol by deed, I 4. Denial of tenancy, nol I" ing bj lease under 5. Denial that the rent was du 6. Pleaof payment of rent, 125. 7. Plea that the nut was satbficd bv d, 8. Plea that the d.-...i • ibordwate to the and was nol under bi al, 125. 9 Plea 10 a special declaration by a lanril ,11 rent, an executed agreement thai the .1 possession of the premises and plaint 814 INDEX. LANDLORD AND TENANT.— Continued. 10. To the like, plea of Burrrender by operation of law, 426. 11. To the like, plea that, before the rent became due, plaintiff entered and resumed possession of the premises, by reason of the defend- ant having committed a breach of the agreement for the demise, involving a forfeiture, -126. 12. Tu the like, plea of discharge under title paramount in assignee of plaintiff, an insolvent debtor, 426. 13. To the like, plea of eviction, 426. 14. A similar plea, showing a partial eviction, whereupon defendant quitted the remainder of the premises. 427. 15. Plea, except as to £ — , that no part of the rent claimed became due except that sum, 427. 16. Plea of a notice to quit before the rent became due, and replication that the notice was waived, 427. 1 7. Plea to a declaration for use and occupation, that plaintiff was sat- isfied part of the arrears of rent under a distress made by him, 127. 18. Plea that defendant kept the premises in tenantable repair, 427. 19. Plea that defendant used the premises in a tenantlike manner, 428. 20. Plea to an action for not cultivating, &c. in the manner prescribed, denial of the breaches, 428. 21. Plea to a declaration for not cultivating a farm according to the custom set out, — denial of the custom, 428. 22. Plea to an action for not cultivating according to the custom of the country, that defendant did so cultivate, 428. 23. Plea to an action on a covenant to pay rent, that the defendant paid the rent when due, 428. 24. Plea by an assignee of a lease, denying the assignment, 429. 25. Plea by defendant charged as assignee of a lease, that he assigned his interest over before breach, 429. 26. Plea to an action by the assignee of the reversion, denying the as- signment, 429. 27. Plea to an action by an assignee of the reversion, denying that the lessor had the reversion alleged, 430. 28. Plea that the lessor assigned the reversion before breach, 430. 29. Plea that defendants, assignees of bankrupts, had not elected to take the lease, 430. 30. Plea in abatement, that the premises vested in the defendant and another, 430. 31. Pleas to an action for non-repair, &c. — 1. That the non-repair occurred through the unforeseen act of a third party; 2. That the defendant was ready to repair, but that a reasonable time to do so had not elapsed; 3. That the plaintiff repaired himself, and so prevented the de- fendant from repairing, 430. 32. Plea to an action for rent, by a transferee of a lease, payment to the transferror, without notice of the transfer, 430. 83. Plea to an action for rent, a clause of reentry in the deed under which the plaintiff entered, 430. 34. Plea to an action on a covenant for rent, that the plaintiff com- mitted a breach of covenant, in consequence of which the supe- rior landlord brought ejectment, and compelled the defendant to pay the rent to him, 430. Pleas. In tort. 1. To a count for an injury to plaintiff's reversion, pleas denying — 1. The possession of the property by the tenant of plaintiff, 655 2. That the reversion was in plaintiff, 655. 2. Landlord against tenant for waste, &c. plea denying the tenancy, 655. 3. Plea to a count by a landlord for injuring a house and removing INI- LANDLORD and TEN \\T C fixtures, thai they were pul up l his trade, 6 I. Replication thereto thai the tern lliu\ ;il. 656. ">. Plea thai the pn mi tenancy was det< rmined under i I Ac 2 Vict. c. • Oilier forms, 656, notes (/) and (m), an LAWYERS. Se< A.ttorni r. (ill lawyers In (In' A nu ri in ys may in I ' g circumstances afft cting tl cannot r< covt r mart (ha 57. must prove retaint r, 57. bui not nect ssary in I under corporal I, note (»)• ir/n ii inn ji r> COVt r for - attornt y ofn cord, 59, note | win ii may recovt r ofparty who a LEASEHOLD ESTATE. S« V] wdor. LEAVE AND LICENSE. See Trespass, 722. evidence of, in action of assault and trover, 757. replication of revocation of, 657. wh a plead* il to sea ral trespass when in w assignment necessary aj plea, of leave and license, 658. replication of a revocation of th and license, LEGACY. mo?/ ?>e recovered m action at law, win n, 12 I )• in Massachusetts, Connecticut, and M o Ha may I" recovered against devise* of land ■ note (]>)■ so of terre-tenant, 124, no ho demand orpromist to pay m T Vf 1 ATEE count a*ains1 an executor on his promise to pay a sum of tion that the plaintiff would rescind a contract for the hm with the testator, 124, Form 10. by, of a termor -who was lessor against l< LESSOR AND LESSEE. Sei Landlord and Cenaht. LETTERS PATENT. See Pa mm. LEVY. Se< Distress. LIBEL AND SLANDER. coste in action of, 5S8. _ ip/ic/i Sender I* actiauuhk withnu- with when action lies for libel, 589. in actions against newspapers money may bi patd the declaration, 5 ! ". no inducemi ni ru cessary, 540. statement of scandalous matter, 541. iiiinii iiiln. 5 12. S£n&£*< action for, by and against public compa effect of nut '/'"'////. 658. . privileged communication, wi when express ma instances of privileged co confidential communications , • 816 INDEX. LIBEL AND SLANDER. — Continued. words spoh n by an M. I 3 , in parliament, G60. by a judgt . on counsel, or witnesses in legal proceedings, 660. other instances, 660, 661. proceedings in a court, or an account of them, 661. comment on of public entertainment, 661. icisms, •''''■I • on s< rmons, GG1. nments and criticism* in the nets of public men, 661. public met tings and reports of them, GUI. justification must bt specially pleaded, 661. 'accord and satisfaction, 662. ■rogatories in action of, 662. slander of title, 549, 665. on / hip, 548. Counts. 1. For a libel, 543. la. Count for libel in foreign language, 544. lb. Count for libel imputing felony to the plaintiff, 544. lc. Forms prescribed by Mass. Prac. Act, 544. 2. Other forms for libel, charging crimes, 545. 3. For a libel imputing immorality or general misconduct, 545. 4. For a libel upon the plaintiff in his office, 546. 5. For a libel upon the plaintiff in his profession, 546. 6. For a libel on the plaintiff in his trade or occupation, 546. 7. For libels on and by companies, 546. 8. Other forms for libels on parties in their business, trade, occupation, &c. 547. 9. For slander, 547. 10. Other forms for slander of plaintiff in his business, trade, or occupation, 548. 11. Counts for slander in respect of words not actionable in themselves, but only in respect of the special damage caused thereby, 549. JPIgcis. 1. Plea to an action for slander of the plaintiff in his trade, &c. denial that he exercised such trade, 662. la. Denial that the defendant made the accusation charged, 662. 2. Plea denying that defendants used the words in the sense imputed, 6G2. 3. Plea that the matter published is true, 662. 3a. Another form for the same. 4. Plea justifying a charge of insolvency, on the ground that it is true, 664. 5. Plea to a libef imputing a general charge of baseness, that the libel was published in reference to a particular transaction, and justifying it, 664. Special pleas that the matter was a fair and bond fide comment in a newspaper article upon the conduct of the plaintiff in a public capacity, GG4. Plea that the libel was a correct report of a preliminary inquiry be- fore a justice of the peace in which the plaintiff was summoned to answer a charge of prying and was discharged, 664. 6. Plea that plaintiff was a swindler, as charged in a libel, 664. 7. Plea to a declaration for a libel on a vendor of quack medicines, that the matters are true, 664. 8. Plea to a libel on a proctor that he had been suspended, 664. 9. Plea to a libel on an attorney, 665. 10. The like on a medical man, G65. 11. Plea that the plaintiff did keep out of the way to evade the process, 665. 12. That plaintiff broke into defendant's cellar and got drunk, 665. 13. Plea justifying a libel imputing polygamy, 6G5. 14. Plea of justification in an action by a clergyman, on the ground of the truth of the fads contained in the alleged libel, G65. 15. Plea of accord and satisfaction, 665. INDEX. LIBERUM TENEMENTUM. SwT] plea of, 718. LICENSE. See Leave ind License. LIEN. See Ti:<»\ i:k, 7_'s ,■ of attorney, on a judgment, by voharfingi r, 780 78] , note (<). by banki r, 780. artificer., farrier, hoi carriagi maker for repairs, ■ keeper of a stallion, 729. //•<;//<( ;• of raa horses, 729. one eoAo W.-<.< «/ /aw or sick horse t<> keep innkeeper, 729; Aas none '»< ;/<< ■'/■< ■•/ boa carrier, 729. by expn ss agrt • m> ut, 730. factor, 780. stockbrokers, 730. agent, 730. auctioneer, 730. Zj'w??-,y staMe keeper has none, 729. //or /m/n '/// agister of cattle, 729. chattel detained under claim of, against owner, cha recoverable of him, 98, nob 10. principle and nature of tin: li, n how lost, 729, 730. no Wr//t/ q/" w/V, toAen, 730. avowry by carriers justifying under a general lien, 8 pleas of, — See Trover and Dei in it.. 780 1 1 as to Me ?ttWe of pleading a lien, 142, n LIFE POLICIES. See Insurance. LIGHTERAGE. See Carriers. LIGHTS. See Ancient Windows wi> Lights ; I\" m ri( LIMITATIONS, STATUTES OF. executor allowed to be joined as pluintitj in a 3. cown/ on conditional promise to pay debt ban- when ordinary form of declaration on contra when a special count should be framed, 202, a /a»se q/" 4. payment /mist be made under circumstance to warrant inference of promise to pay the residue, 434. payment of interest, as interest, 434. part payment in goods, 434. by co-contractor, 434. renewing writ to save statute, 434. Pleas. In contract. 1. Plea of the statute of limitations, 435, 436. la. Answer of the statute of limitations, 435. 2. Replication, that the defendant was abroad when the cause accrued, 435. 3. Replication, to a plea of the statute of limitations (to a declaration bv an executor), that the testator issued a writ within six years, and that the executor sued within a reasonable time after the death, 435. 4. Plaintiff's infancy, 435. 5. That plaintiff obtained a judgment, which was arrested or reversed, and that he now comes within a year after such reversal, 435. 6. Replication in action against husband and wife, 435. 7. That plaintiff was imprisoned when the cause of action accrued, 435. 8. Plaintiff's insanity, 43G. 9. Replication, in an action on a specialty, an acknowledgment within twenty years, 436. 10. Replication, of an acknowledgment in writing within six years, 436. In tort. 1. Plea of the statute of limitations, 667. 2. Plea to a cognizance for rent, that the distress was made within twenty years next after the time when the right accrued to a per- son through whom title is claimed, and that such person discon- tinued receipt of rent more than twenty years before distress, 667. 3. Other form of pleas, replication, rejoinder and surrejoinder, 667. LIQUIDATED DAMAGES. See Statutes Penal, 245. when a specified sum is to be treated as, or as a penalty, 203. count on a covenant in a deed of sale of business, to pay liquidated damages in the event of defendant carrying on the business, 204. like counts, 204. count on a contract for the services of the defendant as a commercial traveller, stipulating that if he travelled over the same ground for any other person he should pay the plaintiff a stated sum, 204. count on a covenant in a lease not to top trees under a penalty for each tree so topped, 204. LITERARY PROPERTY. See Copyright. LOAN SOCIETY. commencement and conclusion of declaration by treasurer of, 10. LOCAL ROARD. commencement and conclusion of declaration by, 10. LODGING-HOUSE KEEPER. See Innkeeper. no duty on, to take care of lodgers goods, 550. only liable for misfeasance, 550. LOSS. See Lnstjb \\ l, 558. MANOR. See Copyhold; Custom; Trespass. MANUFACTURED GOODS. See Sale of Goods; Warranty. count on a warranty that they were fit for the purposes for which they were bought, 261, Form 3. MARGINAL NOTE. in plea of general issue by statute, 288, note (o). in demurrer, 25, note (b). in plea of judgment recovered, 422. MARINE POLICY. See Insurance. MARKET. what is, 558. declaration for disturbance of, 558. venue local, 558. effect of not guilty, 287. MARRIAGE. See Husband and Wife. the promises must be mutual, 205, note (?/). plaintiff" s promise good consideration Jor defendants, 205, note (y). INDEX. MARRIAGE. — Continued. defendant married man, 205, note (y). action may be sustained by man against woman, 205, note (y) when executor may sue, 205, note (//). promise need not be in writing, 205, note ( defendants failure to marry her, and his neglect and , no request necessary where defendant has marru d anoth notice that defendant does not intend to perform his pi as to effect of positive refusal before time of performs promise to marry after a certain event, how to be declared upo readiness and willingness to marry is a material a no defence, that at lime of promise to defendant, the plaintifi another, 206, note (a), prior lunacy is no defence, 206, note (a). promise void, if parties are related within prohibited degree, 206, i no request to marry plaintiff is necessary where defendant has man 206, note (c). implied ability to marry, 206, note (a). subsequent disease and inability to marry, no defence, 206, note (a). damages, 206, note (b). action, as to damages, classed with torts, 206, note (b). injury to plaintiff's feelings, loss of advantageous settlement in considered though not laid as special damages, 206, note (b). seduction of plaintiff may be considered, 206, note (//). so length of time of engagement, 206, note (b). so defendant's affluent circumstances, 206, note (b). as to evidence admissible in mitigation, 206, note (b). promise to pay money as a discharge, 206, note (c). contract to pay money in consideration of marriage, 207, note (//). Counts. 1. Count for breach of a general promise of marriage, 205. la. Form under Massachusetts practice act, 206. 2. For breach of a promise to many on a particular day. 206. 3. For breach of a promise of marriage, "where the defendant has married another person, 206. 4. For a breach of promise of marriage, subject to rther person, 207. 5. On a contract to pay money to the plaintiff, in consideration of lii- mar- rying a certain person, 207. Pleas. 1. General issue, 284. 2. Plea to an action for breach of promise of marriage, thai the plaintiff misconducted herself after the promise, 437. and note (a). 3. Plea that plaintiff had had carnal intercourse with a third person tx the promise, which defendant did not discover until afterwards: and similar plea that she had had a child, 437. various matters of defence considt r< d, 137, note (:). 4. Plea that the time for the marriage had not elapsed, I- 5. Plea of mutual recission of the contract, 438. MARRIED WOMEN. See Abatement; Husband am. Win ; BIarsiagi MARSHAL OF LONDON. See Sheriff. MASTER AND SERVANT. See Agent; Apprentice; Negi.i.i w< WOBZ. justifiable dismissal of servant, 207, note (/). servant improperly leaving service, 207, note (/)• forfeiture of what icages, 207, note (/). rule in Maine, fyc. 207, note (/). action for wrongful dismissal requires a special count, 207. note (r/). form of particulars of demand, 207, note (/). remedy for wages by commissioner under local paving act, 207, note (/ ). 822 INDEX. MASTER AND SERVANT. — Continued. by officer of municipal corporation, 207, note (/)• what recoverable under common count, 208, note (g). where dismissal occurs during currency of period for which stated salary is to be paid 208, note (g). wh> re dismissal takes place by mutual consent, 208, note (<7). /,> w implied agreement to pay pro rata, 208, note (^7). wages actually due befon dismissal, 208, note (g). tutu a mat' rial averment, 208, note (t). marly hiring, what is, 108, note (i). implied ability to continue in service, 209, note (k). right of party who beconies disabled from sickness, fyc. to recover wages for services actually performed, 209, note (£). where employing firm dissolves, 209, note (/). damn./' 5, 209, note (m), 210, note (c), 211, note (r), 559. domestic servant. 210, note (c). law respecting seduction, 558. proof of service, 558. control of father, 558, 559. daughter in service of third person, or of defendant, 558. daughter returning home and causing expense to father, 558. what proof of service held sufficient in American states, 559. constructive relation of master and servant between father and daughter, 559. expense not sufficient; loss of service is gist of action, 559. who may be plaintiff in action of seduction, 559. person seduced, by statute, in Iowa, 559. means of accomplishing seduction unimportant, 559. effect of not guilty, 668. special plea denying service, 669. Counts. In contract. 1. Indebitatus count for wages as a clerk or servant, 207. 2. By a servant against his master for discharging him before the end of his term of service, 208. 3. By a servant against his master for breach of a special agreement as to the terms of service, 210. 4. By a menial or domestic servant entitled to a month's warning or a month's wages, against a master for a wrongful dismissal, 210. 5. By an employer for refusing to receive a hired servant into his em- ploy, 211. Other forms referred to, 211, note (s). 6. By master against his servant for leaving his employ without notice or before the expiration of his term of service, 211. 7. By an employer against his servant for doing work under a contract negligently, 211. Other forms. 1. By an editor of a newspaper, 211. 2. By a reporter to a newspaper, 212. 3. By a printer to a newspaper against the publisher, 212. 4. By an editor of a periodical, 212. 5. By a secretary, 212. 6. By an usher in a school, 212. 7. By a governess, 212. 8. By an actor against the manager of a theatre, and plea of miscon- duct, 212. 9. By an actor against the manager of a theatre, for salary, 212. 10. By a scene painter, 212. 11. By an accountant, 212. 12. By a commercial traveller, 212. 13. By country traveller to a wine-merchant, for refusing to allow him to make the stipulated journeys, 212. 14. By agent or representative of defendant in his business of woollen manufacturer, 212. 15. By manager of a shipping business, 212 INK MASTER AND SERVANT. C L6. By main rer "t" :i 1 1 7. By foreman of tj p< 18. By foreman and mai 1 9. Bj superintendent 20. By a mercantile clerk, and plea il> nership with defendant, 21 21. By attorney against .1 publi to employ him permanently at of costs, 213. 22. By attornej "- clerk, 213. 28. By < rier engaged to trav< 1 ab 24. By Bhip's carpenter, for « j fully putting hiu that be mutinied, 213. 25. For refusing to take plaintifl into bailiff, 218. 26. For refusing to receive plaintiff into dcfc herd, 218. 27. For not employing plaintiff in a certain ors i" procure him similar emploj meat, 28. Against a surgeon who had ■ capacity, for not performing lii- 29. By a journeyman against his d not paying his expenses back from th< had sent him, ana plea of miscondi In tort. 1. For loss of servii 2. For enticing away the plaintiff's workn* to complete an agreement, & 3. For enticing awaj the plainti 3a. Count for receiving and harboring the plain 4. By Hi*' master for an injury done to hii By careless driving By the defendant's dog, 561. By being assaulted and beaten, By being shot, 561. Pleas. In contract. 1. General issue. 43*. . 2. Pleat., an action for discharging, thai the plaintifl 3. pKhat plaintiff mi nducted himself, and account, 438. other matters of 1 ntttm if cam deffle'e of misconducts thai plaintiff a (hat plaintiff got drunk, 438, not that 4 Plea of misappropriation 439. In tort. 1 h2S2&? juredUnott 2! }>!:.;; juMif, in 'n^lera,. ence, 669. 824 INDEX. MAYHEM. See Trespass to Person. what is, 612, obs. (4). MEDICAL ATTENDANCE. See Apothecary, 48; Surgeon. medical act, 48. can now sue for fees, 48. in American states, 48, 49. when debarred from suing, 48, 49. proof of registration necessary, 48. common count for fees, 33, 49. MEMBER OF PARLIAMENT. See Bribery; Parliament. MEMORIAL OF AN ANNUITY. Acts requiring, repealed by 17 & 18 Vict. c. 90, 300. MENTAL SERVANTS. See Master and Servant. clerks are not menials, 208, note (i). count by a menial or domestic servant entitled to a month's warning or a month's wages, against a master for a wrongful dismissal, 210, Form 4. MERCHANT'S ACCOUNTS. exceptions as to, in statute of limitations, 431. MERGER. See Deed, 369. when promissory note not merged in subsequent warrant of attorney, 290, note of remedy upon a simple contract in a deed must be specially pleaded, 369. MESNE 'PROCESS. See Escapes, 649; Sheriff, 595, 690. count for an escape on, 598, Form 7. MESNE PROFITS. See Trespass to Realty, 617, 723. counts in trespass for, and costs of an ejectment, 617. MESSUAGE. See Landlord and Tenant; Trespass. METROPOLITAN MANAGEMENT AND BUILDING ACTS. See Notice of Action, 674. METROPOLITAN POLICE. Sec Notice of Action, 674. plea under the metropolitan police act, justifying giving plaintiff into custody for ringing a bell without lawful excuse, 708. MILL. See Watercourse. MINE. See Support; Trespass to Realty. owner of, must not let down surface, 563. law relating to, 563. Counts. 1. For negligently working a mine under the land of the plaintiff and his tenant, whereby the support was weakened, 564. 2. For injuring foundations of plaintiff's house by digging mines, 564. 3. By the owner of a mine against the owner of an adjacent one for having removed the seam of coal belonging to the plaintiff which separated the mines, and then neglecting his duty to prevent plaintiff's mine from being flooded, 564. 4. For leaving a mine uncovered, whereby plaintiff's horse fell in, 564. Other forms. for use of land and vein of minerals, 214. for non-payment of galeage rent out of coal mines, 214. MISCHIEVOUS ANIMALS. See Dogs, 648. person keeping, liable for damage done by, 561. as to negligence, ground of liability, 561. owner liable for damage done by vicious animal, 561, 562. as to animals not ordinarily vicious, 561. when owner liable for acts of, 561. dog kept for protection of property, 561. when notice to plaintiff of ferocity is a defence, 561, 562. when plaintiff warned of presence of, 562. when plaintiff is trespasser on premises of owner by whose mis- chievous dog he is bitten, 562. not necessary defendant should be actual owner of the dog, 562. notice office to owner, 562. when dog of another may be killed, 562. INDEX. MISCHIEVOUS ANIMAL8. - new enactnu nt, agist of cattle i as (a trespasses by co as to injuries don, /. . effect oj m, t guilty, < Counts. 1. Foruiffering aferociou dog to 2. Under 88 & 29 Vict. S. By a master for an injurv done to b stating special damage For th« 4. JJoriniunesoccasm I by defend Uor keeping a mischievous ram count for knowingly !. plaintiff's Bheep, 562, note i fraudulently Belli eased, &e. 562, note m. Pleas. Not guilty, 287, 669. 1. Plea thai the defendant's dog attacked th tated ii . 669. 2. Plea that the plaintiff was warned not I so, wherefore, &c. 670. MISDESCRIPTION OK COXTRAl fS. See B MISJOINDE It OF COUNTS. 5* Joinder o MISJOINDER OF PARTLES. S'a A,-.u,m,m: l\,.. misjoinder of plaintiff, 268. amend/ ,-. 268, misjoindi r ofdefi ndant, 269. variance, available wider general amendment after, 269. wn/ess injustice would result, 269. may Je refused, if misjoinder ma as to costs of defendant whoi MISNOMER. See Parties. MODELS. See Copyright. MODERATE CORRECTION. plea justifying, of an apprentice, 6 assignment of excess, 671. MOLITER .MAMS [MPOSUIT. SeeTuzspxt plea of , in serve plaintiff with a writ, 7i MONEY COUNTS. See Common Counts. MONEY LENT, 28, and Common Couni MONEY PAID, 28, and Common Counts. MONEY RECEIVED, 29, and Common I MORTGAGE DEED. Se< Landlord ind I when deed contains no i pay pr will lie, 214, note I mortgagee mag site though he has municipal corporation ultra vires, 214, note (t). what amount should be claim Counts. 1. On covenants in a hut! I, 81 1. 2. < >n a deed to secure re-transfer ol count on a morto , a°'e bond for the n indenture assigning a breach, 9 I on a covenant to keep policj of insurance ai • note (t). Pleas. general issue, 284, 285. 826 INDEX. MUNICIPAL CORPORATIONS. when liable to action, 502. MUSIC. See Copyright. MUTINY. plea in trespass, justifying imprisonment by a military officer abroad, the plain- tiff acting mutinously, 707, Form 11. MUTUAL CREDIT. See Assignees; Set-off. pica of, in an action by the assignees of a bankrupt, 167. NAME. See Declarations; Parties. NECESSARIES. See Board; Infancy; Rent; Use and Occupation. common count for, 215. NECESSITY. right of way of when incident to a grant, 741. mere necessity does not give, 741. what plea of, must show, 741. how long continues, and how extinguished, 741. most convenient for the purpose, 741. selection of course of, 741. implied upon demise of land in parcels, 741. plea of ri^ht of way of, 740, 741, Form 9. NEGLIGENCE. in keeping mischievous animals, 561. action for, founded on duty, 564. evidence of, 564. some affirmative evidence must be given, 564. when presumed, 564, 565. explanation by defendant, 565. evidence of, evenly balanced, 565. mixed question of law and fact, 565. duty of court when facts in dispute, 565. when facts undisputed, 565. when but a scintilla of evidence, 595. rebutted by showing accident arose from wilful act of strange?; 566. vis major, 566. duty of railway in constructing ivories to resist effects of climate, 566. liability of company carrying passengers beyond their own line, 566. warranty of road-worthiness of carriage, 566. negligence connected icith level crossings, 566. (J vicing on wrong side, 567. proximate and not remote acts of, regarded, 567. as in case of defect in highway, 567. in case off re caused by engine of railroad, 567. Who liable, 567, 577, note (k). defendants jointly interested, 56 7. owner of carriage hiring horses and driver, 567. damage done by wilful act, 567. when servant acts contrary to regulations, 567. servant bound to warn passenger, 568. an agent may be liable in tort for negligence, ±11. Of fellow servant, 568. master's liability in cases of common employment, 568. ichal cases common employment embraces, 568. servant causing injury engaged in a different department of same gen- eral service, 568. inadequacy of number of servants, 569. allegation of inadequacy, 569. habitual neglect of servant, 569. fencing of machinery, 569. rule of duty and obligation of master to servant in respect of negligence, 569. servant entering employment, knowing the danger, 569, 570. liability of one servant to another in same employment, 570. Contributor;/ negligence, 570. prevents plaintiff' from recovering, 570. INDEX. NEGLIGENCE.— Continued. mi, respecting, i I. in some stat urri ng caust in cast of infants, 57 1 , 6 Uab'diiji of trustees of doc of statutable commit contractors and sub-cont 172. liability of m stry, 57:;. volunteers, •"'7;;. excavations near public way, 57:;. permission by oumt r (o usi lane .' i. leaving open trap door, 574. leaving shoot unprotected, 574. "'"'// to fence mines, 574. declaration must show fads in which duty and that inj\ 570. ej^ec< of not guilty, G70. tran rsi s of possession, ! A. NEW ASSIGNM ENT. — Continu d. ('.Hints againsi corporate bo lii public works for m NEWSPAPERS. >-,,. I. ,,11 i. \m. , , : . NIL DEBET. plea of, not allowed, 275. NOLLE PROSEQUI. does not bar future action if entered i :u. if enteral ajt( rjudymt nt, ill. costs upon, 442. as to pari of claim, 442. toAen several defendants, 1 12. 1. To whole or part of a plea, 1 12. 2. The like as to one of several defendants, i : NON ASSUMPSIT. See Pleas, 284. NONAGE. See Infancy. NON CEPIT. See Replevin, 684. . NON COMPOS MENTIS. s» Lunacy. NON DAMNIFICATUS. See Hum,: Km mm,, NON DETINET. See Trover and Dbtinur, < NON EST FACTUM. Set Pleas, ' NON-JOINDER OF PARTIES, s. e Abatement, o/an executor, when his name will bt of an assignee of bankrupt, 3. plea of, in abatement, 16, note (e). declaration must be amended after plea of, 1 ' . non-joinder of plaintiff, 268. objection to non-joindt r of plaintiff taken by demurrer, May v. H .1/ass. 90. non-joinder of defendant, 269. amendment after, 269. NON-PAYMENT OF BILL. notice of, when to be stated, 76, note (V ). NON-PERFORMANCE OF CONDITION PRECEDENT, NON TENUIT. .See Replevin, 687. NOTES, PROMISSORY. See Bin-; Promissory Noi NOT GUILTY. .See Pleas, 286, 635. NOTICE OF ACTION. time for giving, 674. want of, must generally be special!;/ pleaded, 6 but not with general issue by statute, . acts done in pursuance of statutes, 674, note (/<)• statutes of most frequent occurrence, 674, form of plea, that no notice of action was given at required by the NOTICE OF DISHONOR. See Bills, 7 NOTICE OF DISTRESS, 507. NOTICE OF NON-PAYMENT OF BILE. - Bill. NOTICE TO PLEAD. must be given before judgnu ntfor want • not required after amendment ofdeclaratt m, 18. NOTICE TO QUIT. See Landlord u*d Tenant. count by a landlord for double value against bis tenant for hi notice to quit, 193, Form 18. plea of notice to quit before the rent became d m i plea that the premises were held at a rent Under determined under notice to quit and entry under 1 A Form 5. , . iustification in trespass for entering l farm, on tl, had let the farm on the terms that, alter notice to quit I might enter on averring Buob notice, and that del tenant, 721, Form 12. 830 INDEX. NOTICE OF TRIAL. when delivered with replication, 20, note (s 1 ). NOTING BILLS. See Bills. NUISANCES. See Ancient Windows, 479; Common of Pasture, 496; Neg- LIGENCE, 5G4; REVERSION; WATERCOURSE; WATS. what is a nuisance, 580. action for, only founded on damage, 580. statement of the injury, 580. against whom action must be brought, 580, 581. liability of contractor, 580, 581. of those employing contractor, 581. effect of not guilty, 676. prescriptive right to cause a nuisance, 676. as to acquiescence, 676. Counts. 1. For obstructing a highway, 581. la. For keeping an obstruction on a highway unguarded, whereby the plaintiff's carriage was upset, 581. Like counts, 581, and notes (a) and (?•). For leaving excavation without a light, 581, note (q). against trustees of roads, 581, note (q). against a contractor for not smoothing the surface of a highway, after opening it, 581, note (q). 2. For keeping an area or cellar adjoining a public highway in a dangerous state, 581, and note (r). 3. For making an excavation and leaving it unprotected, 582. against a water-works company for keeping a fire plug uncovered in a highway, and damage in consecpuence, 582, note (s). 4. For placing floating timbers on the Thames, whereby the access to plain- tiff's public house, which abutted on the river, was obstructed, 582. 4a. For nuisance in a public navigable river, by leaving wreck, 582. 5. For obstructing a highway so as to interfere with plaintiff's omnibuses, 582. 6. For obstructing a private way, plaintiff having a right to pass along the same, 582. 7. For leaving a mine uncovered, whereby plaintiff's horse fell in, &c. 582. la. For negligently leaving a trap-door in a private passageway open, 582.° 76. For negligently keeping a shoot in a sugar refinery in an unprotected state, Through which plaintiff, being lawfully on the premises, fell, 582. 7c. By a guest against the owner of a house for negligence in keeping a door in a dangerous state, whereby the plaintiff opening the door was injured, 582. 8. For setting spring guns, 583. 9. For injury by a gun being intrusted to an unfit person, 583. 9a. For negligence in lending a machine with a known defect in it, in using which the plaintiff was injured, 583. 10. For wrongfully placing scythes in a public street, whereby plaintiff was injured, 583. 11. For annoying the plaintiff by placing lighted brimstone in a church tower where plaintiff was ringing the bells, 583. 12. For not repairing a privy adjoining plaintiff's house, 583. 13. For erecting a mound, &c. on a hill above plaintiff's house, whereby it was unsafe, &c. 583. 14. For erecting adjoining house, so that it projected over the plaintiff's, and the rain, &c. fell thereon, 583. similar form by a reversioner, 583. against the landlord of the adjoining house, who had demised it with a "dangerous chimney, which fell on to the plaintiff's house, 583. ^ landlord of a building with a roof so constructed that snow and ice col DID] NUISANCES. — Continued. lected "a ii Erom Qatar i highway , and did bo fall and injur.- a j 15. For fouling a well, ■ 1G. For a nuisance t<> a dwellin 16a. For :i nuisance in carrying on ■ i iri >_r the plaintiff' 17. For a nuisy 1 1 u i - .- 1 1 1 . ■ < ■ to a dwelling-hou 18. For raising ;i bank, whereby water flow* 19. For stopping up a watercourse along which water flow, 58 i. 20. For permitting sewer to overflow in plaintiff's land, ■ji . For seeping offensive drains, ■ 22. For negligentlj constructing Pleas. 1. Flea justifying the removal of [copii fendanl 's land, 676. 2. Plea justifying a fcre NULLA BONA. See Sherd count againsl a sheriff for falsely returning, to of goods sufficient to satisfy plaintiff's executii plea to a declaration, for falsely returning nii fendant did not levy, 691. NULTIEL RECORD, plea of, 41 s. replications to plea of, 418. NUNQUAM INDEBITATUS. 274. Set l'i i is. OBSTRUCTION. See Common, 197; Nuisance, 580; W Ways, 631. OFF-GOING CROPS. See Landlord ind Tenant. count by outgoing against incoming tenants, 1 17. OFFICER. See Shekiff. OFFICIAL MANAGER. See Public Company. OFFICIAL LIQUIDATOR. See Publk Company. commencement and conclusion of declaration by, 12. OMISSION OF TERM IN CONTRACT. may be shown under non assumpsit, 278. OUTLAWRY. of plaintiff in an action is (he subj\ ct ■ OUTSTANDING DEBT. plea of, on judgment or specialty againsl tl OVERSEERS. commencement and conclusions of declaration by, 1 1. plea by, justifying imprisonment on the gro ind 70 7,' Form 12. OWNER OF CARRIAGE. See Ne< liability of, for negligence . 567. count against, for negligenl driving, 574, Form 1. /-vv " "count for injuries occasioned by defendant's ox nmnin 563, Form 4. , . count for negligently tying up defends i PACKED PARCELS. Set Carriers PARISH BOUNDAIMKS. plea that defendant entered plaintiff's house in 720, Form 7. PARISH OFFICERS. See Overseers. PARLIAMENT. See Bribery. declarations against peers and members of, PARTICULARS "OF DEMAND. under the common counts. 35. 832 INDEX. PARTICULARS OF DEMAND. — Continued. in Massachusetts, 35, note (I). count not accompanied icith, may be amended, 35, note (I). what information it should give, 35, note (/). under New York Code, and office of, 35, note (I). form of and what to be specif ed, 36. crediting payments, 36, 37. set-off, 37. under count on account stated, 34. when terit not specially indorsed, 37. when writ specially indorsed, 37, note (m). when declaration contains special counts, 38. when count on bill of exchange or other special count, 35, note (I). when they should contain particulars of the consideration for a bill, 35. when they contain credit for set-off, 38, note (n). court may order other particulars to be furnished, 37. PARTICULAR ESTATES. commencement of should be shown, 198, note (l). $ PARTIES. See Non-joinder of Parties. Plaintiff. plaintiff's name in declaration, 2. misnomer of plaintiff, 3. when plaintiff sues in a representative capacity, 3. name of plaintiff may be added or struck out, 3, 268. when executor not joined as plaintiff, 3. plaintiff in person or by attorney, 3. who must sue in person, 3. when solvent partner must be joined with assignees of bankrupt as plaintiff, 9, note (m). declaration by or against a surviving plaintiff or defendant, when the death oc- curred before writ issued, 15. when one plaintiff died after issuing of the writ, 15. effect of omission to state whether plaintiff sues by attorney or in person, 19, note (o). Defendant. defendant's name in declaration, 4. defendant executing deed by wrong name, should be sued by it, 4. amendment by striking out name of defendant, 4, 268. declaration where one of defendants died after issuing of the writ, 15. when defendant sued by wrong name, 19, note (n). whom to sue on a charter-party, 110. in actions by and against executors and administrators, 119. non-joinder and misjoinder of parties, 268, 269. amendment after, 268, 269. PARTNERS. cases of partnership depend on the same principles as cases of agency, 2L5. joinder of solvent partners as plaintiff with assignee of bankrupt, 9, note (m). one partner cannot sue his copartner on business accounts, 215. may sue on covenants between them, 215. on any matter so separated as not to involve a general account, 216. instances and cases, 216. where, common count will lie by one partner against his copartner, 215. final balance may be recovered at law, 216, 442, 443. subscribers to deed of arrangement are partners against third persons, 216. partners in mining company, 216. surviving partner must be declared against as such, 217. cause of action joint and not several, executor not liable, 217. dormant partner may be sued, 217. defence of partnership of plaintiff and defendant available under never in- debted, 442. where parties members of two firms, 442. INI'' M| PARTNERS. — Continued. Counts. 1. By a survivtoe partner, for stated wnii the survivor, 216. 2. Against a surviving partner, :'i;. 3. By a partner against bis copartner, on ■ itip ..... and divide profits, 21 7. 4. On a deed of dissolution of partnership between : ant, by which defendant covenanted n certain limits during a period of liquidated damages, '.'17. 5. By a partner against bis copartner, forimprop premises, in breach of the covenant of the latu 6. Against surviving partner, on a contract t. to employ, _M 7. 7. For breach of an agreement to enter Into partni ; :. plea to an action against a retired membei another partner ca in, and that by consent ol a the old firm weft transferred to the new, 1 1 PART PAYMENT. taking a case out of the statute oflim i::i. See Payment: Limitations, Stati PARTY WALLS. See Fenci 9. common use of, evidence of character. 218. when within metropolis, 218. rights of building, and adjoining oumt r in when common count lies by building owm r, 2 local acts, 218. PASSENGER. See Carrier; Nkgligeni i. PASTURE. See Common of Pasture, 196. PATENT. S,e Injunction. licensee cannot plead invalidity of, 218, note (a), warranty of validity of, 218, note (a). assignment of patents, AA'.i. statutes relating to, 585. subject of, must be a manufacture, 585. must be new. 585. grantee must be first inventor, 585. right to, may be assignt 85. assignment should be by deed, 585. registration of, 585. infringement, what, 586. disclaimer, 586. treble costs, 586. prolongation of term, 586. particulars of breaches and objections, 586. vijunctions, 530, 587. deposit of specif cation, 587. right of crown to use, 587. successful plaintiff entitled to account nfsnhs, 587. damages in action for infringer// Counts. In contract. 1. Indebitatus count for remuneration for lii • 2. On a deed by which plaintiff licensed defendai tiff's patented invention for making w enanting to pay k J i per ton for all rop< render periodically an account of the quantii ured, and to allow the plaintiff to in-j assigning breaches of each of thi 3. On a deed of covenant to p manufactured under a lii render account-. 21 '. VOL. II. 53 834 INDEX. PATENT. — Continued. 4. By a patentee of improvements in slubbing-maehines, against licensee, on his covenant not to make or sell any machines without applying plaintiff's patented improvements, 219. 5. On a covenant by a public company to pay a sum of money to plain- tiff out of the first calls on shares of the company, in consideration of the plaintiff covenanting to convey his patent to the defend- ants, 219. 6. For breach of an agreement to do all that was necessary for obtain- ing and perfecting a patent about to be taken out by the plaintiff, on the occasion of the assignment to the defendant of a share therein, 219. 7. On an agreement for the sale by plaintiff to defendant of a moiety of the "plaintiff's interest in a patent which he had obtained, as- signing breaches for non-payment of the purchase-money, &c. 219. 8. On an agreement by which plaintiff's patent was to be assigned to and worked by defendant, the plaintiff receiving percentages upon all goods sold to which the patent applied, and defendant agreeing to make the necessary periodical payments for stamp-duty to keep the patent alive, — for not making such payments, whereby plain- tiffs patent ceased, 219. In tort. 1. For infringement of a patent (common law procedure act, 1852, schedule B, 31), 587. 2. For infringement, claiming an injunction and an account, 588. 3. For royalties under a license to use patent, 588. 4. For infringement of a renewed patent, 588. 5. By the original patentee and the assignee of one moiety for infringe- ment, setting out the assignment, and a disclaimer of part, 588. 6. For infringement, stating disclaimer or alteration of part under patent law amendment act, 1852, s. 39, 588. 7. For the same, stating two disclaimers, 588. 8. By an assignee for infringement, 588. 9. By an assignee, for infringement of renewed patent, 589. 10. By an assignee of two several moieties of a patent for its infringe- ment, 589. 11. By an assignee of a separate and distinct part, 589. 12. By the survivor of two tenants in common for infringement during the lifetime of deceased tenant, 589. 13. By the holder of an undivided moiety of a patent, and the assignee of the other moiety, jointly, for an infringement, 589. 14. Count on an agreement for an assignment of a patent, 589. 15. For imitating plaintiff's trade-mark, 589. 16. Form for particulars of breaches under 15 & 16 Vict. c. 83, s. 41, in an action for infringement of letters-patent, 589. Pleas. 1. General issue, 677. 2. Plea traversing that the plaintiff was the inventor, 678. 3. Plea denying that the invention was new, 678. 4. Plea that two parts of an invention were not, nor was either of them, new, 678. 5. Plea that the invention was not an invention of any manufacture which could be the subject of a patent, 678. 6. Plea that the invention was not an improvement, 678. 7. Plea that the invention was prejudicial to the public, 679. 8. Pica denying the grant of the patent, 679. 9. Plea denying the enrolment of a sufficient specification, 679. 10. Plea that the specification does not sufficiently describe the invention, 679. 11. Plea that the description of the invention was too vague, and is at vari- ance with description of the invention in the specification, 679. 12. Plea that the invention was known, published, and used before the grant of the letters-patent, 680. 13. Plea that the letters-patent were altered, and thereby became null and void, and replication, 680. I x. PATENT. — Continued. 14. Plea thai the report of ;li" judicial comtniti the letters-patent thereupon were pr 15. Plea that the letters-patent were obtained tlie plaintiff's petition, 6 16. Plea thai the disclaimer extendi the exclu i ters-patenf . 680. 17. Plea thai the invention described in th< i ait. r«- 1 by Um disclaimer is another and different inventl patent was granted, •J*"- 18. Plea that the Infringemi nl was before the disclaimi the declaration, 680. 19. Particulars of objection to l»>- delivered with the pl*M, *J80. PAWN. S«? Bailer; Lien. PAWNBROKER. care required of him, CS, note (t/). plea of lien by, 7^1 , Form 2. PAWNEE. what degree of cm-, is required of him, 68, note («). right to repledge, 312, note (/). plea by second pawnee, 312, note (/). PAYEE OF NOTE. See Bills. PAYMENT. See Accohd and Satisfaction; Paymim imo Court; I FOKMANCE. plaintiff cannot be made to admit. where credit given in particulars ofa\ rnand, 86, and -143. admission of, must be in the / i *, 1 18. plea of, when balance only claimed, 448. must be specially pleaded, l I8i to a count on a bill, 336, 337. particulars need not be given under this pin, 444. pleas of, construed distributively, -111. when made by bills, 444. by cheek. 144. by goods taken as money, 44 I. by transfer of money in account, 1 14. b>i money paid to third person, 444. agreement between parties that debt of one shall be « from that of the other, 444. money sent as ordered by creditor, 411. written receipt not conclusive, 41 1. may be made by agent, 44 I. when good to agent, 444. when payment presumed, 445. party payinq has right to appropriate, 445. 6u1 i/A« e/o not, the i» rson receiving payment, • appropriation, when payment made to pa 445. of smaller sum no satisfaction for greater, part payment, taking a case of the statute of hmtta evidence of fresh promisi . 134. made by an agent, 184. . . • under bircumsta oarrant an i . I promue to pa, As rem- due, 484. payment of interest, 484. part payment in goods, 184. //// c< when no time provided for paym plea of payment to) to one of two joint plaintiffs, I debt paid and payment a, ,. .*. ... SpTylntmustbepi \* debt, u* note (/')• 836 INDEX. PAYMENT. — Continued. if pleaded to part on the whole sum paid in should equal that to which it is pleaded and interest, 449, note (?•). if pleaded to part only the plea must give some answer as to the residue, 449, note (r). Pleas. 1. General plea of payment, 446. la. Answer of payment, 446. 2. Plea of payment after action, 446. 3. Plea of payment on a judgment, 447. general plea of performance, 352. 4. Plea of payment by a set-off of cross demands in an account stated and payment of the balance, 447. 5. Plea to an action for goods sold, of payment of the price to the plain- tiff, and of the residue to trustees by agreement with the plaintiff to abide the adjustment of a dispute as to the goods being equal to the contract, 447. PAYMENT INTO COURT. in what actions it may be pleaded, 447, 682. no order necessary except in case of one or more of several defendants, 447. how made and taken out, 447. costs on plea of, 44 7. in actions on a bond, 448. should be sufficient to cover damages to time of plea, 448. money so paid is recovered within 13 8f 14 Vict. c. 61, s. 11, 448. to several counts, 448. effect of, as an admission — 1. To common counts, 449. 2. To special count, 449. defendant cannot move in arrest of judgment after, 449. particulars under plea of, not generally necessary, 449. in replevin, 682, 683, 684. in actions of libel, 682. in detinue, 682. under particular statutes, 682. effect of, in actions of tort, 682. Pleas. of payment into court, 449. replication, taking money out of court in satisfaction, 450. replication, claiming further sum, 450. PEACE, ARTICLES OF, 556. PEACE, BREACH OF. See Trespass. PEERS. commencement of declaration against, 15. PENAL ACTION. See Statutes, Penal, 245. PENAL RENT. declaration by plaintiff, who was partly devisee and partly heir of a lessor, for increased rent (under a penal clause) for converting pasture land to other purposes than were allowed by the lease, 197, Form 27. PENAL STATUTES. See Statutes, Penal, 245. PENDENCY OF FORMER ACTION. beliveen the same parties for the same cause, 273, and note (w). foreigner sued abroad for a cause of an action pending against him at home, 273, note (u). against a person jointly liable, 273, note (w). bankruptcy of the plaintiff , 273, note (u). plaintiff non prossed in the first action, 21 Z, note (w). PERFORMANCE. See Bonds, 353, note (k); Rescinded Contract, 279. of conditions precedent, if denied, must be pleaded, 39, note (w), 353, note (k), 367. to debt on a bond within 8 & 9 W. 3, general plea of performance, 352. to debt on a bond conditioned to perform the covenants in another indenture, general plea of performance, 353. replication assigning breaches to a plea of performance, 354. »] X. PERTLY F 7 H , 1: S1:A , S « ChABT«»-Pa«TT iJi.itJUK,i. See Libel; Dbebpass. count for malicious prosecution for perjurr, 556. PElSlT Cati ° n Qnder * Jl " 1 '""' " w:,,T:l,,L "" M Indictment tor i 10. plea that the sale and removal of goods was ill. ,. r:Mt Wii uk— out under the excise laws, 504. Form 1 1 ■■■■ PEWS. right to, must be annexed to a house, ■■ mode of proving right to, 590 prescription act, 590. extra-parochial persons, 590. proof of prescriptive right, 590. forms of declarations for disturbance of, 590. venue local, 590. seats and pews after 1818, 590. statutes relating to, 590. count for disturbing plaintiff in the enjoyment of a pew to which he had a ">*, PHYSICIAN. See Apothecary. can recover his fees on an express contract, 220. or by registration under medical act, 48, 220. PILOT. See Ships. PIRACY. See Copyright, 498. PLAINTIFF. See Parties. proof of character of as assignee, 8, note (i). becoming insolvent after action brought, 8, note (Jfc). rfeatft of sole, does not cause action to abate, 1 ; b). has final judgment if he succeeds on a plea in 17, note (J.-). misjoinder of, 268. non-joinder of, 268. amendment after, 269. PLEADINGS, COMMENCEMENTS AND CON< LU81 >F, 1. Declarations, 1-16. See DECUSSATIONS. 2. Pleas, 17-23. See Pleas. 3. Demurrer, 24-26. See Pleas. PLEAS. bankruptcy of plaintiff after action brought, 8, note (X). that plaintiffs are not assignees must he pi aided, 8, noto (i). #ood in part and bad in part, 25. note (c). Aoec construed on demurrer, _'5. note I Commencements and conclusions of Pleas, Rep ications, fcc. 1. Pleas in abatement, 16, 270, and mf, replication thereto, 17. 2. Pleas in bar and replications, &c. 17, and inf form of commencement of a plea in bar to •'. !.\r.ition, SO. variations in particular 20. when one of two defendants pleads -husband i when plea is to part only of can joinder of issue and replications, 20. replication when plea contain- new matter, commencement of a second ". farther plea, 81. plea in bar, showing defence arising after action OOCBSMBOad, and before plea, 22. commencement of a plea setting up an equil the rejoinder, 23. surrejoinder, 23. rebutter, 23. surrebutter, 23. Of Demurrers. commencement of a demurrer to a declaration or jv\ to a part of a di to a plea or rejoinder, - joinder in demurrer, 26. 838 INDEX. PLEAS.— Continued. Practice respecting. time for delivering , 16, 17, 18. notice to plead, 16, note (e), 17. judgment when no plea pleaded, 16, note (e). plea cannot be delivered during vacation, 18. what days not to be included in time for pleading, 18. after amendment of declaration, 18. a month's time is a lunar month, 19. issuable pleas, 19. no formal conclusion necessary, 19, note (p). when joinder of issue may be added, 20, note (s). pleading several ]deas, 21, note (f). abstract, 21, note (t). plea must be confined to part answered, 22, note (u). confession of plea by plaintiff, 22, note (x). defence on equitable grounds, 22, note (*/). pleading and demurring together, 24. issuable pleading may be demurred to, 25. plea bad in part is bad altogether, 25, note (e). covenant not to sue cannot be pleaded in bar, 369. In contract. Pleas in abatement, see Abatement, 270. Pleas in bar. Nunquam indebitatus. nil debet not allowed, 274. when applicable, non assumpsit inadmissible, 275. effect of 275. general and several traverses, 275. as to pleading matters in confession and avoidance, 276. objects of restricting effect of general issue, 276. contents of special counts in contract, 276-277. effect of pleading general issue to special count and common count, 277. /. To special count. 1. To inducement, 276, 277. 2. To the contract, 277. 3. To condition precedent, 279. 4. Breeich, damages, 281. II. To common count, 281. 1. Goods sold, 281. 2. Work and materials, 282. 3. Money received, 282. 4. ^ccomm^ stated, 283. payment must be pleaded. 283. pleadings construed distributively, 283. declarations treated as in contract or tort, 283, 284. embarrassing pleadings, 284. pleading rules T. T. and H. T. 1853, 274-276. iVion est factum, effect of, 285. matters in confession and avoidance to a deed must be specially pleaded, 285. attesting witnesses need not be called, 286. effect of variance between deed and the description of it in declara- tion, 286. General issue by statute. in what cases may be pleaded, 286. non assumpsit, when pleadable, 287. what defences admitted under, 287. Accord ami Satisfaction. must be specially pleaded, 288. of a liquidated debt, 288. i.M.l.X. PLEAS. — Continued. eon be no accord and m • of an unliquidated demand acceptance of agreement one I . J defendant should pay T. J. the debt Bued for T. J. and defendant's debl to plaintiff i«i:. guished, 292. 10. Plea that defendant was indebted to • I plaintiff should accept f. F. aa his debtor in lieu ant, 292. 11. Plea that the contract was made with an agi against whom the defendant had a set-off, and i credited the agent with the amount of the plaintiff accepted in satisfaction, 198. 12. Plea of accord and satisfaction bj living a bill of 13. Plea of accord and satisfaction by tndoi issory note, 298. 14. Plea of accord and satisfaction by paji third party, 298. Replication, 293. 840 INDEX. PLEAS. — Continued. Forms of pleas in contract. See Pleas in Bar, supra, and under various titles. Forms of pleas in tort. See under various titles, plea of not guilty, 636. plea of not guilty by statute, 287. plea in abatement, 368. plea of non delinet, 800. plea of non tenuit, 687. PLEA PUIS DARREIN CONTINUANCE, 453. PLEADING SEVERAL MATTERS. See Pleas, 21, note (*). PLEDGES. See Detinue; Lien. PLENE ADM1NISTRAVIT. See Executors, 384. PLOUGH, BEASTS OF. See Replevin. POINTS OF DEMURRER. See Demurrer, 25, note (b). POLICE. See Notice of Action, 674 ; Trespass to Pfrson, 767. plea justifying assault in turning plaintiff from a police office, 702, Form 5. plea justifying an arrest, &c. of felony committed by the plaintiff, 707, Form 2. plea that a burglary had been committed in defendant's house, that plaintiff was found in a suspicious manner near the house, wherefore defendant gave him in charge of a constable, and caused him to be taken before a magis- trate, who remanded him, &c. 705, Form 3. plea justifying arrest, &c. on suspicion of felony. 707, Form 6. plea under the metropolitan police act (2 & 3 Vict. c. 47), justifying^ giving plaintiff into custody for annoying defendant and his family by ringing the door-bell without lawful excuse, 708, Form 8. POLICY OF INSURANCE. See Insurance. POND. See Watercourse. POUND BREACH AND RESCUE. See Distress, 503. forms for, 590. statutes relating to, 590. POUNDAGE. See Sheriff, 244, note (I). count by a sheriff for poundage and fees, 244. PRAYER OF JUDGMENT. See Judgment, 17, note (t). PRESCRIPTION ACT. See Ancient Lights, 479 ; Common of Pasture, 496 ; Watercourses, 733 ; Ways, 736. PRESENTMENT. when averment of, necessary in declaration, 76, note (e). of bill payable at a particular place, 77, note (r), 78, note (s). count by indorsee against drawer, where notice of dishonor was not given or presentment made, but the drawer had no effects in the drawer's hands, &c. 79, Form 15. Pleas. indorsee against drawer, denial that the bill was presented for acceptance, 333. indorsee against drawer, denial of presentment for payment, 334. payee or indorsee against acceptor of a bill with a qualified acceptance (Form 11, p. 77), denial of presentment according to acceptance, 334. indorsee against drawer of bill payable after sight, default acceptance denial that bill was presented for acceptance in due time, 335. indorsee against indorser, plea that the plaintiff indorsed the bill away before due, to a person unknown, who presented it to the acceptor, by whom it was refused, of which defendant had no notice, 343. PRIMAGE. See Carriers. PRINCIPAL AND AGENT. See Agent, 38, 295, 477, 637. PRINCIPAL AND SURETY. See Guaranty. _ surety entitled to interest on money paid for principal, 31. PRIVILEGE. See Attorney ; Libel. plea by attorney of privilege of being sued in another court, 273. PROBABLE CAUSE. See Malicious Prosecution ; Trespass to Person. PROBATE. See Executors. form of issues in probate proceedings to establish a will; due execution; sanity of testator; undue influence, 129. PROCEEDINGS IN BANKRUPTCY. See Assignees ; Bankruptcy. index. -a PROCESS. See Sheriffs; Trespass. PROCHEIN AMI, 14, note (a). when liable to attorney, 55, aote («). maij sue without authority from infant, 14, Dots (a). PROCTOR. count for ;i libel on, charging extortion plea to a Libel on, that he had been suspended, I PROFERT. of a will or letters of administration no longer necessary, I f). nor of deed, 17, note (//). PROMISE TO PAY. Set BiIXS. PROMISE OF MARRIAGE Se< Marria< PROMISSORY NOTES. See Bu i - oi Excfl ujqi . when one su oih d in /■■■ waiver must be made with full knowli note 0). ). general issue cannot be pleaded, 493. Counts on. 1. Payee against maker, 220. la. Form under Massachusetts Practice Act, 221. 2. Indorsee against maker, 221. 3. Indorsee against payee or other indorser, 221. 3a. Form under Massachusetts Practice Act, 221. 4. Payee against maker of note made in the body payable Si S cular "dIrcg 222. 5. Payee against maker of note payable on demand, or afu r 6. Against" a maker ol a aote payable by instalments, sum is due, 222. 7. The like, where the times of payment of some only ot t: SSSM have elapsed, 223. 8. On note payable to E. F. or bearer, 223. 8a. Form under Massachusetts Practice Art. 223. 9. On a country bank-note payable in the body in t< 10. Against payee, being indorsee, who had not doe had no effects with maker, 224. In case of particular persons. by executor or administrator of payee agan ■ '• against the executor or administrator ol the ma* by the assignees of a bankrupt p unst the bv a survivinB payee against maker, 224. by husband anHiferon a note payable to the against the maker, 225. , ci- w r bvhusband and wife on a note given to the wife ^insfeSmute, where some of them became due aglTh^dandwifeonanotSE-d.byl 225. on foreign promissory notes, -'25. 542 INDEX. PROMISSORY NOTES. - Continued. Pleas. 1. Drawer or indorser against maker, denial of making, 451. 2. Indorsee against maker, denial of indorsement, 451. 3. Plea, on equitable grounds, that the defendant made the note as surety for a joint maker, and that the plaintiff gave time to such joint maker, 451. PROSECUTION. Plea to a bill of exchange, that it was given in pursuance of an illegal agree- ment between a petitioning creditor and a bankrupt to abandon the prose- cution of the fiat, 402. PROSECUTION. MALICIOUS. See Malicious Arrest. PROTEST OF BILLS. See Bills, 86, 87. PUBLIC COMPANY. trans/error liable when calls were made and shares transferred be/ore they were payable, 226, note (x). liability of bankrupt for calls, 226, note (x). interest on calls, 227, note (a). call founded on colonial acts is simple contract debt, 230. companies clauses act, 225. companies act, 1862, 227. effect of general issue, 451. what pleas not allowed, 452. transfer of shares between day when call was made and became pagable, 452. as to who are shareholders, 226, note (a;). Counts by and against. In contract. 1. For calls by a railway or other public company under the companies clauses consolidation act, 1845, 226, note (u). 2. Declaration for calls, 226. 3. For refusing to transfer railway shares or scrip bought by the plain- tiff from the defendant, 227. 4. By vendor of shares against purchaser for not accepting, 228. 5. Against a railway company upon a judgment of the sheriff for the damages assessed by his jury as compensation in respect of the plaintiff's lands having been injuriously affected by the defend- ants' railway, and for the costs of the inquiry, 228. 6. Against a railway company, for the amount awarded to the plaintiff upon an arbitration under the lands clauses consolidation act, 1845, 8 & 9 Vict. c. 18, ss. 18-68, as compensation for lands in- juriously affected, 229. 7. Declaration for recovery of the costs of an arbitration under s. 34 of the lands clauses consolidation act, 1845, 8 & 9 Vict. c. 18, 229. For calls due to a company registered under the companies act, 1862, 230. Common count for shares sold, 244. In tort. 1. By the managing committee of an intended railway against an en- gineer for not preparing proper plans, &c. in time to be deposited to enable them to apply to Parliament for an act, 591. 2. Against the secretary for not delivering to plaintiff a certificate of shares purchased by him, 591. 3. For not paying money to the plaintiff which a statute rendered it a duty to pay, 591. Pleas. 1. General issue, to an action for calls, 452. 2. Denial that the defendant is the holder of the shares, 452. 3. Denial tbat the company is registered, 452. 4. Plea that the calls were made in excess of the company's power, 453, and note (a). 5. Plea that the contract was not under seal, 453, and note (a). 5a. Plea that defendant was induced to become holder of shares, through the fraud of the plain tiffs, never had any benefit, &c. and repudiated and disclaimed the shares and gave notice thereof, 453. 1NDKX. gig PUBLIC COMPANY. — Continue d. 6. Plea that plaintiff was :i director, and i plea under a railway act, justifyin 784, note {p). PUBLIC HEALTH, bee Commissionebs, 4 Action, 674. PUBLIC HOUSE. count Tor falsely representing to A. who li .■! a for defendant, the atnounl <■!' the receipts, A. i,.i. knowledge of the defendanl . communicated who was thereby induced i" become a purcb . 14. PUBLIC OFFICER, LI, L2. PUBLIC WAV. sr, Wats, 631, PUIS DARREIN CONTINUANCE. plea of matter arising after <<>mmencement of action, \ time ofpleiuliii;/, 453. plea may be pleat/' d "'ill* otJu r», 153. plaintiff may confess the plea and ha\ plea is a waiver of other pleas tut'/ a r< taxit <>i r a ! : not destroying rabbits on a farm, 202, Form 12. RAILWAY COMPANY. See Notice oi A M; l'i . 451, 591. RATES. See Replevin-. G85; TRESPASS. count for taking excessive distress for poor, 507. RATIFICATION. by a landlord of a distress not authorized by him, G86, note (. REALTY. See Landlord, &c.; Trespass; Vendor*. REBUTTERS AND SURREBUTTERS, 28. RECEIPT. plea, by carrier denying, 639. written' receipt not conclusive evidence of payment. RECOGNIZANCE OF BAIL. count on, in a superior court, 230. plea of nul tiel record, 418, 454. that there was no case against the principal, 4M< replication that there was a ca. to, 154. RECORD. See Judgment, 418. RECTOR. See Waste. duty of incumbent of living, as to repavrs, 691. action by executor of deceased incum _.■.,.„ claim for dilapidations postpc *B «'"' "'".' J "- venue is local, 591. REDEMPTION OF AN ANNUITY. Sm Ann. my. 844 INDEX. REJOINDER. gratis, 20, note (s). form of, 23. RELEASE. See Accord ; Payment. must be specially pleaded, 455, by agreement or operation of law, 455. of contract under seal, 455. consideration for, when not under seal, 455. under composition, 455. to joint and several creditors, 455, 456, note (7). a release to one, ivhich discharges all, must be under seal, 455. discharge by operation of law, effect of, 455. fraud upon releasor should be replied, 455. covenant not to sue may amount to, 455, 456, note (I), by giving time on a guaranty, 456, note (/). on accommodation note, 456, note (I), by appointing joint debtor executor, 456, note (I). of one joint debtor by proceeding to judgment against the other, 456, note (J). Pleas. 1. Plea of release, 456. la. Plea of release to the further maintenance of the action, 456. 2. Replication to a plea of release, 456. 3. Replication that the release was obtained by fraud, 456. 4. Plea that the manager of a banking company released the debt, which the company (the plaintiffs) afterwards ratified, 456. 5. Plea of the release of a co-contractor, 456. 6. Replication to a plea of release, setting out the releasing deed in hozc verba, by which it appeared that the release was to be void in certain circumstances, and averring those circumstances, 457. that release was altered, 457, note (m). RELINQUISHMENT OF PLEA. See New Assignment. under what circumstances a plea may be ivaived, 683. REMAND. damages for, cannot be recovered in action for assault, Sfc. 614, note (y). in action for malicious prosecution, 614, note (y). REMEDIES. reservation of aqainst surety, 399, note (s 1 ). REMOVAL OF GOODS. plea in trespass justifying the removal of goods, incumbering defendant's premises, 712, Form 7. plea justifying under a distress for rent due for other premises, the plaintiff havino- fraudulently removed his goods to the locus in quo to prevent distress, 645. RENT. See Landlord and Tenant ; Replevin. Counts. count for use and occupation, 184. count on a guaranty in consideration that the plaintiff would let a house to a third person, that defendant would be answerable for the rent, 139. count by an executor for use and occupation, to recover a quarter's rent when the testator died during the currency of the quarter, 122. count for the rent of furnished or unfurnished lodgings, 184. count upon a lease for rent, 184. by a lessor against his lessee on his covenant for non-payment of rent, 184. count for penal rent, 197. plea denying that the rent was due, 425. plea of payment of rent, 425. Pleas. plea that the rent was satisfied by a distress, 425. plea to a special declaration by a landlord against his tenant for rent, an executed agreement that the defendant should give up possession of the premises and plaintiff abandon the rent, 426. plea of a notice to quit before the rent became due, and replication that the notice was waived, 427. INI'l X. RENT. — Continued . plea that plaintiff was satisfied part of the made by him, 127. plea to action on a covenant to pay rent that d( due, 428. plea to an action for rent hy a tran-lVn ferror without notice of il" plea to an action for rent, a el. m-.- of reentry in tin- >r construt to keep in repair, how broh n, 1 B6, note (u). REPLEVIN. what it is, 231. lies of all goods unlawfully taken and detained, 281, f plaintiff should have general or sp< rial prop rty in / 231. how far trespass and replevin are concurrent r< . II. as to the cases in which this action lies in the . I does not lie for goods of plaintiff taken on i liability of officer or creditor, or both , in cannot be maintained in Massachusetts against a -o po-tmom or control of the goods, 231. but it is otherwise in New York, under the Code, 1 Chitty PL 181, •')• replevin bond, 231. statutes relating to replevin bonds — 19 §-20 Vict. c. 108, 231, 592. 24 §' 25 Vict. c. 126, 232. when mil tiel record may be /'leaded, 457, note (o). action of, in county court. 592. action of, may be brought in superior con cannot be joined with any other form of action, plaintiff in, must hare possessory right, 592. _ • there must be a taking out of th pout man oj the owner, 683. for goods tab n l>u distress, 592. for an illegal taking or unlawful detention, S judgment, damages, and eels. :> plaintiff may pay m s3 > c84 - the plea of non cepit, 684. avowries and cognizances — what, 684. Cu business with. WJU T0 , being contrary to public policy, 159. RETAIN Kit. plea of, by an executor for his own debt, -TS9. RETURN, FALSE. Sec Sherifj , RETURN OK BILL. See Bill. REVERSION. See LANDLORD a.m. Tin \nt, 535. when action for injury to, will I when no "present injury accru when tenant concurs in committing injur;/, 593. allegations in declarations for injur// effect of not guilty, 689. Counts. 1. For an injury to the plaintiff's reversion in a dwellin 2. For injury to the plaintiff's reversion by diggin quarrying. 594. 3. For injury t<> the plaintiff's reversion by cutting off ing belonging to him, and erecting a wall mtfa ises, 594. 4. For injury to plaintiff's reversion by obstructii • u 5. For injury to plaintiff's reversion by obstructing locking a gate, 594. 6. By a landlord for injury to his reversion 1> posts, &c. through fields occupied by his tenant a pretended right of way, 594. 7. By the owner of goods in reversion for injuring thee Pleas. 1. For an injury to the plaintiff's reversionarj his title, (i!»9. 2. Plea that the injury complained of w sheriff, not in market overt 3. To a count for an injury to plaintiff*! possession of the property by the tenant of j.l 4. Denial that the reversion was in the plaintifl 5. Plea in an action bv a landlord against In- i justifying the removal of them M h D ml REWARD, 233, 505. who may sut for, 233, note (£). principle and rule of liability upon an i note (n). offer of, should he acted on within a r offer of, may be withdrawn I how information (•> he given, •-'.'>:, m given by tiro or more count for a reward For discovery of offender, 1 for lost property, 8 .. on a promise made by an advertisement offei who should produce the best plan for n hull i RIENS IN ARREAR. plea of in replevin, 688. 848 INDEX. RIENS PER DESCENT. See Heirs and Devisees, 400. RIENS PER DEVISE. See Heirs and Devisees, 400. RIGHT. See Trespass ; Watercourse ; Way. RIOTERS. See Hundred, 653. RIVER. See Watercourse, 624, 733. ROAD. See Negligence, 564, 670; Way, 631, 736 SAILOR. See Seaman, 243, 462; Ships, 600, 694. SALE OF GOODS. See Agent, 38; Auctioneer, 62 ; Fraud, 392; War- ranty, 256. when common counts will lie, 27, 28. declaration should be special — 1. When action against party guarantying price, 234. 2. Where there has been no delivery or acceptance, 234. 3. Where goods to be paid for by bill, 234, 237, note (t). goods stored in elevators, 234. goods paid for partly in money and partly in goods to be delivered, declaration should be special, 234, 235. where the goods are delivered in part performance, money may be recovered under common count, 235. goods sold under contract of " sale or return," 239, note (z). contract for goods, Sfc. above value of £10, 235. damages for not accepting goods, 235. for not delivering goods, 235. where there is no market for such goods in which buyer can get them, 235. where buyer has contracted to resell at a price above the market price at the time of delivery, 235. for breach of contract in sale of a particular article, 235, 236. resale, where vendee refuses to pay for goods, 237, note (>-). vendee justified in refusing goods when more sent than ordered, 237, note (r). right to reject specific goods, 237, note (q). specific delivery of goods, 235. form of broker's note, 239, note (a). see forms on bought and sold notes, 237, note (§). statutes relating to sale of goods — Statute of frauds, 29 Car. 2, c. 3, s. 17. 9 Geo. 4, c. 14, s. 7. mercantile law amendment act, 19 &f 20 Vict. c. 97, s. 2. effect of general issue, 459. in actions against husband and wife, 460. Counts. common counts for goods sold and delivered, 33, 34, 236. for goods bargained and sold, 33, 34, 236. against agent for not using care in selling goods, 40. for not selling according to order, 40. for selling at price below that fixed, 41. for not accepting goods deliverable at a particular place, 239, note (a). 1. Indebitatus count for goods bargained and sold, 236. 2. Indebitatus count for goods sold and delivered, 236. 3. Vendor against vendee of goods sold, for not accepting them, 237. 4. Vendor against vendee, on his promise to pay for goods by a good bill of exchange, 237. 5. Vendor against vendee, for not giving security for the price of goods sold by auction, according to the conditions, the credit not having ex- pired, 238, and note (u). 6. Vendor against vendee, for not accepting goods which were to have been delivered in parcels on different days, and to be paid for on de- livery, with a discount, &c. 238. 7. For not accepting goods which were to be manufactured for a railway company, showing a wrongful discharge from further proceeding with the manufacture, 238. 8. For not taking away from plaintiff's land timber sold by him to defend- ant, 239. WD SALE OF GOODS Continued. 9. Fornol paying tor or returning a 1 10. On a contract forthe purchase of hemp to 1 ■■ '• in the months of September and Oetolx buyer's acceptance, paj months livery, 289. 11. Vendee againsl vendor fornol delivering goods, lla. Another form for Bame, 240. 116. Purchaser against vendor on a contracl forth* by a certain ^ 1 1 i j > , for not delivering, 240, 241, lie. Purchaser againsl vendor, on a contracl for the description, for delivering goods Inferior to the 12. Vendee against vendor, on bis pro him, if plaintiff should on trial of a 241. 12a. Purchaser against vendor, for not delivering a n agreed upon, stating Bpecial damage, 242, and i l 13. For not supplying machinery for a Bteam v< — 1 — ■ 14. For not supplying girders according to dr&wii Pleas. 1. General issue. 460. 2. Plea to a special declaration, for nut accepting, thai thi accept, 460. 3. Plea to a similar declaration, that plaintiff ■■ deliver the goods, 460. 4. Plea that the plaintiff did nol Bend the ■_• \- within t! .«•*« not ready and willing to '1" bo, 160. 5. Plea to a special declaration for nol paying f< p ti.' fendant did pay for them, 460. 6. Vendee against vendor, for not delivei 7. Plea to goods sold and delivered, that the . -be contract rescinded, 461. 8. Plea to a declaration for goods sold and delivered, thai sold by the plaintiff under the false pretence thai hi of A. 13., and payment to the rightful execul 9. Plea, that uoods were sold upon a Sunday, 161. SALE OF LAND. See Vendors and Pub< iia-'i kg "SALE OR RETURN." goods sold under contracl of, right of suit if nol returned within reason ). SAMPLE. count on a warranty of goods sold by, 26 1 plea that goods were not according t". 460 ■'). count f of exhibiting false samples, 521, note (./). SANITY. of testator, form of issue for trial of, 1 29. SATISFACTION. See Accord and Satisfaotk SCANDAL. See Libel and Slandeb. SCHOOLMASTER. common count for tuition, 'hoard, &C. 242. SCINTILLA OF EVIDENCE. in cases of negligence, and meaning of, SCRIP IN PUBLIC COM TAN V. See Public Com pahi 101. SEAMAN. See Negligence, i J0\ Ship >4. when remedy for wages is before jtutt is in siij ••'. - 18. who must be sued when ownership ha no express obligation on owner that ship .- ■>$■ master and owner may both I"- sued for ;•(• master has same remc , SHARES. See Public Company, common count for Bhares Bold, 244. SHEEP. See Mischievous Animals, 661. SHERIFF. See Extortion; Leavi ind Lh WulTii ud. may maintain action, or leoy for fees, 244, i. officer of, may maintain action against att actions against, must be against / liable for act of officer under warrant, ■ high bailiff of count// court, 595. when act of officer not within scojn of /, .095. execution creditor colluding with office certificate of deed of on nt, 696. summary remedy against, for i ctortion, B refusal to levy before rent />ai"rt unit ing nulla bona, 597. Various Forms against sheriffs for m g 'it>j. 3. For falsely returning that the goodt hands for want of buyers after a seiza 4. For seizing goods equal in value t" the mo writ, and levying only a portioi 5. For taking insufficient bail where the capiat was issued a. fendant in a wrong name, and plea, 6. For not arresting on the earliest opportunity, 6a. For not arresting on final pro what constitutes an ■> 7. For escape on mesne process, 8. For an escape on final procec 9. For not returning the writ, whereby the p lalntHf was j pense, 599. 10. For an excessive levy, and not selling for tie fieri facias, 599. 11. For nen«erotM in the Thames, whereby the plaim Pleas. 1. Not guilty. G36. 2. Plea to a declaration for carelessly running the defendant was Dot | I of th( 3. Plea that the loss was occasioned by thi . whoM cmp: ment was compulsory, 694. To an action againsl the captain for excluding plaintiff i tjiat the plaintiff conducted himself in an un threatened the captain, 168. SHIP AGENT. See Agkvi : Broki ft. count against, for not procuring cargo, 48. for not stowing, l 3. for not forwarding, 13. SHIP OWNER. See Carkif.k ; Ship. count by, against captain or his agent for not properly utowin -, 43. SHOOTING. See Trespass. venue local, 603. trespass for purpose of killing game, I SIGHT. See Bills of Exchange, 77, 8U, not SIMILITER, 20, 284. SIGNATURE. of barristers no longer necessary to pleading, 19, note (p). SLANDER. See Libel and Si.anim b SLANDER OF TITLE, 665. See Lnsi i. am. 6j un>] '.49. Forms and law, 549. Not guilty, 635. SOLICITOR. See Attorney, 55, 304. SON ASSAULT DEMESNE. See Trespass. •♦SOUND." meaning of the term, 260, note (a). SPECIAL DAMAGE. See DAMAQB, i. 5. SPECIAL DEMURRER AIJOUSHKD, 24. SPECIALTY. See Debt; Deed; Nom aflSUMpanr. merger of simple contract debt in, 369. SPIRITUOUS LIQUOR. Plea to a declaration for goods sold, thai they con I epirit* contrary to tippling act, 468. SPRING GUNS. count for setting spring guns, 583. STAGE COACH. See Carriers. STAKEHOLDER. See Gamin.;; M-.\ty klmvip. STALLAGE. See Tolls, 248, and note (y). count for, 261. STALLION. keeper of, has lien on mare sent to be covered, 7 '29. STAMP. want of, when if ever it may be pleaded, 469. 854 INDEX. STATUTES PENAL. See Aerest, 52; Bribery, 92; Extortion, 125. declaration must state words, " against the form of the statute," 245. necessary allegation in a qui tarn action, 245. exceptions in enacting clause of statute must be negatived, 245. venue local if action by common informer, 245. venue transitory where action expressly given to party grieved, 245. time for bringing an action on, — see Limitations, 431. Counts on. 1. On the Gravesend Pier act, against a clerk, for acting as treasurer, 245. 2. On a by-law of a corporation (since the municipal act), against the corporation, for money arising from the funds of the corporation, ordered by the by-law to be paid to a burgess, 245. 3. On a by-law by a London company against a liveryman, for a penalty for a breach of one of the regulations of the company, 245. 4. Against a landlord, to recover poor-rates under local statutes, 245. 5. Against a commissioner, for acting in a matter in which he was person- ally interested, contrary to the provisions of a local act, 246. 6. Against a person for having acted as councillor of a borough whilst un- qualified, 246. 7. Against an overseer, for not making out a burgess list, 246. 8. Against an overseer, for selling goods for the use of a workhouse, 246. 9. Against a guardian of the poor, for supplying goods for, his own profit, 246. 10. Against a share-broker, for acting without being admitted, 246. 11. For delivering sacks of coals in London of deficient weight, contrary to 1 & 2 W. 4, c. 76, 246. 12. Against an apothecary, for penalties for practising without a certificate, 246. 13. Against a pound-keeper for taking more than 4s. on a distress, 246. STATUTES. general issue by statute, 286. penal statute, 245. fraud, 96, 235. limitations, 432. STEVEDORE. master of a vessel is not liable for negligent storage by, when, 490, note (J). STOCKS. Counts. 1. Indebitatus count for stock sold and transferred, 246. 2. Against the purchaser of Spanish certificates, for not accepting them, whereby plaintiff sustained a loss on the re-sale, 247. 3. For not delivering foreign stock, 247. STOCK JOBBING. See Gaming, 395. STOLEN. proof that bill was, puts plaintiff to prove himself holder for value, 341, note (p), 345, notes (z) and (a). STOPPAGE IN TRANSITU, 604. STREET. See Negligence; Nuisance; Ways. SUBPCENA. count against a witness for not attending on his subpoena at a trial, 633. SUBSTITUTED CONTRACT. See Rescinded Contract, 457. SUGGESTION OF BREACHES. See Bond. SUICIDE. committed by person whose life is insured under policy, providing that it shall be void if the life insured is destroyed by suicide, Sfc. effect of, 173, note on third person who has acquired a bona fide interest in the policy, 173, note (z 2 ). on assignee of bankrupt suicide, 173, note (z 2 ). on equitable assignee, 173, note (z 2 ). what it includes, 173, note (z 2 ). DOM SUICIDE. — Contint what degra of mental unseumdm suicide from vitiating tl„ , eases undt r proviso in a hand," " should commU '..,, . 173, note (z»). summon 1 ^ w , i , : i i , -r ,, t , 'v;.-; v: " Iif " I- 11 --*- ■ ii - 1 SUNDAY. See Sale oi Goods, 161. note fri SUPRA PROTEST. S» Biu - r '.I'..r.,.3. trade v ,ll :. ,r;l, " i ''-'- «"'••'■• i-iM^.,1,.: . , J.iV.HM,. ,V , ( .i.i>|i\vii I ||- I >IV. TRADE-MARKS £& DK ^ An action for adopting km ' ■7" cta * ' / "'"".'/- no/ $«ff'*«**u>nptionof* to $ 20 I ,,7. c. Goun/s. L F Sei^f 8 .' 1W »* ■ „»*«, TKAP Ll¥^>^^ TRAMJis]-:. Set l'i i TREASURER. TRESPA J s1 i0n ^M a8UreP0fal 2 a, det 7. ' venue, in trespass to '" trespass to rt description o/propt rty by abulia amendment in description, 609. 610 ab initio, 503, G7;j. 721. To the person. costs in trespass, »iio. when there are several defendants, Gil. what is an assault, Gil, 696. what is a batter//, 611. what is a wounding, 61 -'. w/ia/ is mayhem, 612. tt'fort damages may be recover,,!. 618, i, damages when many defendants, 612 . «*» '» ^ ^W as /„•/,„■/,. ( , )# cfam ty husband for injury to to what is imprisonment, 618. arra< mar/e tWer /woe* M 97. 3. Plea that the defendant assaulted the plaintiff. ■ prevent him from assaulting a third 4. Replication of excess to a plea 5. Ketaking a runaway apprentice, 1 6. Justification by a railway compa.n .,,- ,■ 7. rieaot justification to an action f that defendant was an attorney, an I alias capiat under which plain: thereto that the writ was irregular, 8. Plea justifying imprisonment under u warrant istrate, 698. 9. Justification of an assault in defence { nenafudtr 698. 10. Replication to a plea of justification under against the party, plaintiff in a tor:. irregular, 699. 11. The like that the arrest was irregular, I 12. Justification of an assault, &c. in resisting trained damage feasant, 699. Plea justifying arrest for refusing to give upatl Defence of a house. 1. Justification by defendant that the assault wai . :'. :. ..• of his own house and land, 700. 2. Justification hy defendant as servant of the 1 house, 701. 3. Replication to a plea of Belf-defenoe to U thi . ill was committed in removing defendant from plaintiff's land, . Other forms justifying in defend of property. 1. Expulsion from a public house, 701. 2. From a select vestry, 701. 3. From a church for indecent behavior duri 4. Justifying assault ii; turning clerk out 5. From a police office, 6. From a house, and law as to 1 1 1 • - ri.hi of a landl x too* ant holding over, 702. 7. To prevent forcible entry into 8. The like into a close and replication of an ■greeaaeni fendant to enter to cut teazles, 702. 9. Expulsion of plaintiff, who was defendant's » which he refused to leave. 702. 10. From a railway, and justifying taking plaintiff under 3 &4 Vict. C 97, for tresp 11. Justification of an assault in defem • <-p. wl. plaintiff with a strong band attempts I to Ink 12. Similar plea, 702. 860 INDEX. TRESPASS. - Continued. Felony or suspicion of felony. I 3: $%^SS t °oVS pieion ° f ** «"• 705. • ° rest ' "■ o£ 'e 1 ™/ committed by the plaintiff fee defendant ga« hta ta eS£rfT£ TT, ,lle "T^ " h ere- to be taken before a n ",;?,?, f a oonst »Me and caused him <• That a gun had been s to h K" ' V° "*"** "», te. 70S. snspicfon a,ai„ s J plaintiff "J, pa ' VM "' imd reasonable .round of 5- Other plena justifying arre ' , & on ^^ rf ^^^ ^ 6 ' ^fotff t! S arreSt ' *-*** — Mention, on suspicion of 8.' Other form" ToT"" 1 ** P lai "' i£t bad "^n a horse, 707. jJKp^-^n-70, ,; S a?rasstts» ,he plaiatiff - *• «^ ; i'-a^lrs^*-^ ,o pre ™' drf - da °' 3 Sea IS,!? defMCe . of "'W>r ! „U 70S. '' ^'SijKMSSL-Sp- «"•«* to enter and eansed a 8- Plea under the Metropolitan Police Act f2 * « v . ,,x . Justification umler tijl P Z£"? door-bell without lawful excuse, 708. '' P bortd n ,he Ct 'b?r ff Tor "" 16 "'' &C ' <*"-' *e execution cred- Xr pSda^^Jof d -pheation'nn affidavit of debt, and ^5£SSwP" *■"»»* <° «"• P'-ntiff with a writ; repli- J- % an attorney, 710. 8. S^ < ^S^*^ rf j^V»« , «bw^ 710. «• J-nc like out of chancery and renlioatinn 7in ' ^SSSffi^Jy BK «"* *• P^tiff was misnamed, the «pL, a„d , ts P !he n, 1 le f rs:ri„3:d , :^o nOWa ^ "" "™ '" TRESPASS. ,— Continued. Justification under a criminal Justification under II. I'l RSO> \i I v. 1. Nut guilty, 7 1 n. 2. Plea of paj men( into court, ~i i . 3. Denial thai the - ■1. Justifil ation for -■ izi 5. Plea ui' plaintiff's bankru| 6. Plea justifying were in defendant the close from trhiqh il fendanl was bound t 7. Plea justifying the romo\ i ises, 712. 8. Pie;: that plaintiff had mixed up fendanl bo that they could unavoidably committed 1 1 ». - a , of his own goods, 712. Pleas qfjustification in ac 1. Plea by ;i sheriff, his bailil together for br< cation under a fi. fa. 71 2. 2. Plea of justification und< 3. Plea to declaration for entering I goods therein h i re the pro fendanl recovered a judgnu of a moiety under a //. ( 4. Similar justification undi 5. Justification under [ 6. Plea that the trespass was ■•■:: was subsequently set aside ujkjii tin- i bring no 715, 7. Replication to a pie i ol ' istifi 8. Plea by a sheriff to tres] tin' bankrup - •_ ods, that the ■ ; before Hat, and witho it notice ■ 9. Replication as against a part) su< I incut was on a warrant ■' •'* preference, 7li>. 10. Replication that the judgment the fiat issued within i *•**" that the Bhi rifl Bold with m 716. 11. Similar replication that tin- judsim nt « way of fraudulent preference, 716. 12. Plea' by a bailiff, that In' a. te I • county court to compel th< his goods; replication, a III. Realty. Pleas deni/iiu/ plaintiff's That the said close was not th 1. Plea of libt I la. Answer of the same as to | any other part, 718. 2. Another form, justifying 3. Replication t<> a defendant to plainti 4. In trespass quan to tin- freeholder, 71 . ., 5. Plea in justification placed defendan them, 720. 862 INDEX. TRESPASS. — Continued. 6. Plea that defendant entered plaintiff's house to reclaim his wife, who was wrongfully harbored there, 720. 7. That defendant entered plaintiff's house in perambulating the boundaries of a parish under a custom to that effect, 730. 8. That plaintiff had sold goods to defendant, and had thereby given him a license to come and take them from and out of his house, 720. 9. Plea justifying entering a house because it was let on the terms that if the tenant did not repair, &c. the landlord might reenter without legal process, and averring non-repair, &c. 720. 10. Replication to the last form, showing facts making the defendant a trespasser ab initio by converting goods which he found in the house, 721. 11. Similar justification for entering a farm on the ground of breach of the conditions of cultivation, and also for mortgaging the lease, 721. 12. Similar justification on the ground that the landlord had let the farm on the terms that after notice to quit the incoming tenant might enter, and averring such notice, and that defendant was the incoming tenant, 721. 13. Plea justifying entry into a dwelling-house under a power in a deed from a lessee, who possessed the premises before plaintiff, 721. 14. Plea of justification of entry into a close to hunt, &c. under a right granted bv a freeholder whose title accrued before plaintiff's, 722. 15. Similar plea under a right created by a tenant for life by virtue of a power contained in a will, 722. 16. Plea justifying entry on plaintiff's land by churchwardens under acts of parliament, 722. Common of pasture, 722. . Distresses, 644. Easements, 649. Fences, 651. Fishery, 652. Game. Plea in trespass for hunting, &c. on plaintiff's close, justifying a ser- vant of the plaintiff's landlord, under a reservation of game in plaintiff's lease, 722. Landlord and tenant, 792. License, 657, 722. Mesne profits, 723. New assignment, 671. Nuisance, 676. Payment into court, 682. Sheriff, 690. Tenancy in common, 723. Way, 736. TRESPASSER AB INITIO, 503, 673, 721. TRIAL. .See Witness. TROVER AND DETINUE. Trover. lies for the conversion of a chattel, 618. when it lies for fixtures, 618. 1. Property in the goods. is either absolute or special, 618. when absolute or special owners can sue, 618. right to possession sufficient, 619, 725. bailor or bailee may sue, 619. against a wrong-doer, 619, 620, note (p), 725. right of finder of goods, 619. bailor against innocent purchaser from bailee, 619. action of by and against a public company, 502. INDEX. 068 ?ROVER AND DETINUE. - Continued. 2. Conversion. is the gist of the action, 619. what is a conversion, 619, 630, note (p), demand and refusal, presumptivt proof of, 819. evidence of possession by defi ndanl v, <,l'J. when there crisis a doubt as to title, 6S0. by tenant in common disposing „( tfu common property, GliO, not* (p\ damages, 620. yr '' special damage must be stated, 620. . interest may be givi /< by the jury, <;■_'". effect of not guilty, 728. not possessed, 724. assignees of a bankrupt, 636, 726, 727. bailees having special title, 727. bills of exchange, 727. Detinue. See Payment into Couht, 682. specific recovery of goods, 622. lies for wrongful detention, 622. M>/je/i a better fonn of action than trover, 622. counte m trover and detinue, when they may be laid together, C. when chattels delivered %p before action, I compulsory delivery of chattel, 'Jl'-'I. writ of execution under order for compulsory delivery, 69 what plaintiff must prove, 727. e/fec£ q/" non detinet, 728. common law procedure act, 728. lien and pledge, 728. several pleas of lien allowed together, 730, note (/). separate liens on separate chattel, 730, note (/>). Counts in trover. 1. Wrongful seizure or conversion of goods, 620. what description of goods tuQ (s). Count for the conversion of carpenter's took, Btating a> special d .image that the plaintiff was prevented from working, 621. Count for the conversion of a ship, tackle, 121. for the conversion of dead grouse, 621. of rabbits, 621. la. Another form for same, 621. 2. By assignees for conversion before bankruptcy, 621. 3. By assignees for conversion after bankruptcy, 621. 4. By executor for a conversion in the testator a lifetime, 621. 5. By executor for a conversion after the testator*! death, I 6. Trover against an executor for a conversion by the t> Other forms. by husband and wife, 620, note (p). against husband and wife for conversion by wifi | p). Counts in detinue. 1. Count in detinue, 623. 2. Form stating special damage, 623. Pleas in trover. Plea of not guilty, 636. 1. Plea that the plaintiff was not p la. Answer denying property and conversion, 75 2. Plea of property in defendant - - namely, that the tr. < of which defendant was Beized in fee, when ered it to R. K., who delivered it t<> p l ai n ti ff , bom whoa de fen dant took it, 726. 8. Answer of Bpecial property, i Assignees of a bankrupt. 1. Plea in trover by assignees, that the plaintiffs were not as assignees, 727. 2. Plea to a declaration by asd "P 1 ' or ; 864 INDEX. TROVER AND DETINUE. — Continued. ing to them poods with which the bankrupt had intrusted them; that the bankrupt transferred them before fiat, and without notice on the part of the transferrer of any prior act of bankruptcy, 727. 3. Plea of payment of money (for damages) into court in trover by the assignees of a bankrupt, 727. Bailees, 311, 727. Bills of exchange, 727. Pleas in detinue. 1. Plea of non detinet, 728. 2. Denial that the goods are the plaintiffs, 728. 3. Pleas of redelivery of the goods after action and payment into court of damages for the detention, 728. Lien and pledge. 1. Plea of lien by a tradesman for work, 730. 2. Plea of lien by a pawnbroker, 731. 3. Plea of general lien by an attorney, 731. 4. Plea of general lien by wool fullers, they carrying on business on the terms of such lien, 731. 5. Plea of general lien by a warehouse-keeper in London, 731. 6. Plea by bankers of a general lien on goods and securities deposited with them, 731. 7. Plea to a count for the detention of deeds, that they were deposited as security for a debt, 732. 8. Equitable plea that deeds were deposited by the plaintiff by way of equitable mortgage to secure an advance to a third person, 732. 9. Plea of lien by a coach maker, 732; by an engraver, 732; by a carver and gilder, 732; by a w T arehouse-keeper, 732; by an inn- keeper, 732; by an accountant, 732. ■ 10. A hike plea of a deposit of goods in exchange for other goods on which the defendant had a lien, 732. 11. Replication that the plaintiff tendered the amount of the lien, 732. 12. To a plea of lien; replication, that defendant wrongfully delivered the goods to third person, 733. 13. Plea of lien by a carrier, 733. 14. Other replications to pleas of lien, 733. TRUSTEE. commencement and conclusion of declaration by, 10. TRUSTEES OF PUBLIC WORKS. See Commissioner, 494, 495; Negli- gence, 564, 577, note (k). who receive no personal benefit for acting as such, liability of, 494, 572. whether trustees may repay themselves out of trust funds for damages re- covered of them for acts done in discharge of their duties, 495. employing Jit and proper contractors to execute their works, <§*c. 495. forms of counts against for negligence, 495. under public road act, as to acts of men employed in making or repairing road, 5 77, note (k). TRUTH. See Libel and Slander. TUITION. See Schoolmaster. TURBARY. See Common of Pasture, 496; Trespass, 722. what it is, 824. form for disturbance of common of turbary, 624. UMPIRAGE. See Arbitration. UNDERMINING HOUSE. See Negligence; Nuisance; Support. UNDUE INFLUENCE. Form of issue for trial of, 129, 130. UNDERTAKE K. count for undertaker's bill, 249. USANCE. See Bills, 85. ! V USE and 0< I i PATION. common count for, 184. USl RY. Set ( ! lmino, S95. VALUATION. > \i i ii< .m VALUE RECEIN BD Bn not necessary to rtaU in i ',» prove that ht is I VENDOES AND PI Rl II \M.: forms for breach friction , '_' 19. by and against, in England, w ndi • /"■ , m (A( .1 pare thi effect of general issiM . 172. Counts. 1. Indebitatus counl for the pui veyed, --'lit. 2. Special form for the pri< [ a 250. 2a. Grantee againsl grantor in a comn of covenant, 250. 3. Vendor againsl vendee of an i I I contract . for not completing the ■ 4. For not accepting a lease accordii 5. Vendor against vendee, on :i public-b an assignment of the term, and paying tl the stock. &c. 252. 6. Vendor againsl vendee of a term of paid for the assignmi at ol the leas, 7. For a sum of money agreed to be paid i defendant's favor a contract befr the sale of a house, 8. Vendor againsl vendee, on an e r the .--i for a Lease, 258. 9. Vendor againsl vendee of a freehold 9a. On an agreement to convey land on a certain part of the price in < the land for the remainder, 10. Vendee againsl vendor, fornot delii tions of sale, 2 , . , 11. Vendee against vendor, for no cumbrances, 255. 12. Vendor against vendee, on an waived the condition of plaintifl 13. For not making a • l title, av« and Day the purchase-money on havii U. By aVlminisfratrix against th delivering an abstract of tide to tl expense, &c. 255. ... _ 15 VenSee against vendor , cover expenses, &c. the tide being Pka \. Vendor against vendee, make a "(Kid title, I Vendor against vend readv t" convey, A ■ piSby vendor, that her, ■ P n tained in the conditioi s 4 VeS aga that plaintiff was not pos 55 2. 3. VOL. II. 866 INDEX. VENDORS AND PURCHASERS. — Continued. 5. Vendee against vendor, for not completing; that no conveyance was ten- dered, 473. 6. Vendee against vendor, for not delivering an abstract, &c. ; that the de- fendant discharged him from so doing, 474. 7. Plea by vendor, that he made a good title according to the conditions or ^«i1p 4 7 ^) VENDORS AND VENDEES OF GOODS. See .Sale of Goods. VENUE. local and transitory, 2. consequences of neglect in stating, 2. liow it should be stated, 2. if error in , appear on face of record, 2. when laid in either of tivo counties, 2. when improperly laid, objection may be pleaded, 2. VICINAGE. See Common of Pasture, 641, note ( Counts. 1. Count for the breach of a wa la. Count for breach of warrant} tract), 260. 2. On n wiirrant v on a 3. On a warranty that m which they were bought, 21 4. On a warranty of thfl qualitj 5. For Belling picturi • i Canaletti 6. On a warranty of a horse, on ■■■ 7. Upon a warranty of a vendor fendant bad power to sell th Other forms, 261, notea (g) and Pleas. 1. General issue, 475. •2. Denial of the warranty. 475. 3. Plea to declaration on the warrant;. was unsound, 475. 4. Plea to a declaration on the wan-.. took it back,and deliv< ■ WASTE. See Landlord and Tenant, siox, 593, 689. WATERCOURSE. exclusive right to running water, how in rig ' ** right of appropriation must be .grfc prescription act, 2 * 8 W. 4, c. 71, 1 licenses to make drains, 627. alterations by claimant in mod right arising out of possession or from venue local, 628, and note (:)• effect of not guilty, 788. Counts. . si! 1. For diverting water from a mill, 6 co „,„ tetaj*, 2rorsp „m„,,i ,--' '**« r a v i .in "" "• ■ •• . matter into a 8trea> J^2 ] ::im ****** £$T, ■ 868 INDEX. WATERCOURSE. — Continued. 8. For diverting water from plaintiff's mill, &c. by making cuts from the stream and not keeping the banks in repair, &c. 630. 9. For throwing rubbish into a stream, 630. 10. General count not showing mode of diversion of water from mill, 630. 11. For lowering kinks and making a weir, and thereby causing water to flow irregularly to plaintiff's mill, 630. 12. For suffering a ditch to be choked (which it was defendant's duty to cleanse, as occupier of an adjoining close) whereby the water over- flowed plaintiff's close, 630. 13. For stopping a gutter in defendant's yard, tbrough which the refuse water and eaves droppings from plaintiff's house were carried away, 630. 14. For stopping up a drain and sewer, through which tbe plaintiff had a right for rain and water to flow, 630. 15. For injuring plaintiff's land by causing a watercourse to flow with un- usual force, 630. 16. For removing a hatch whereby plaintiff could not work his mill, 630. 17. Against a miller for an improper elevation of his hatch and mill head, 630. 18. For an injury to the plaintiff's reversion in a close, by an interruption of a right to irrigate the same by a watercourse, 631. 19. For the like injury and for discharging into tbe stream water from cop- per-works, and from pits in which iron was deposited, 631. 20. For obstructing plaintiff in his right to water cattle at a pond, and take the water for domestic purposes, 631. 21. For making public works so carelessly that water flowed over plaintiff's land, 631. 22. Against a canal company for not managing the canal according to an act of Parliament, 631. 23. For disturbing the plaintiff's right to a mill, 631. 24. For obstructing a watercourse from a colliery made by the plaintiff over the land, and by the license of an adjacent owner, 631. how far obstruction or diversion icithout real damage is action- able, 628, note (z). Pleas. 1. Denial of plaintiff's right to the use of the water, 734. 2. Denial of the plaintiff's possession, 734. 3. Plea of immemorial right at common law, 734. 4. Plea (under 2 & 3 W. 4, c. 71) of a prescriptive right to use water for a mill, 734. 5. Plea (under 2 & 3 TV. 4, c. 71) of a prescriptive right to use water for agricultural purposes, 634. 6. Plea to a declaration for lowering a weir, and thereby obstructing the water from flowing to the plaintiff's mill; that for twenty years before suit, the defendant had a right to lower the weir for the purpose of ir- rigation, 735. 7. Plea justifying trespass quare clausumf regit, because the occupiers of a mill had the easement of going on to the close to repair banks of a stream which flowed to the mill, 735. 8. Plea of tbe right to fetch water from a public pond, 735. 9. Plea by a tenant of a right by non-existing grant to use the water for a mill, 735. Plea of an express grant of a right to discharge refuse from bleaching works into a stream, justifying pollution under tbe right, 735. Plea by a mill-owner of a prescriptive right to take water from a canal for tbe use of steam-engines and other purposes, 735. Plea justifying the use of the water of a stream as a riparian proprietor, 735. Plea of a prescriptive right to discharge noxious water into a stream, 735. Plea of a prescriptive right to scour and amend the cbannel of a water- course, 736. INDEX. "'•■' WATERCOURSE. — Continued. Plea justifying the obstruction thereby wrongfully dis< WAYS. See Nuisances, 580; Watj public van, special dame private way, novo claimed, 631. prescription act, 196, 78 case the only remedy for obst\ venue local, 632, note (<)■ plea of non-existing grant, 786. oflost qrant, 789. binding effect of advi unity o}p\ssesmnprevenU evidence under plea of forty yea effect of not guilty, 786. new assi'inimiii, extra viam, 61 interruption must bt a 736, note (.-). during tenancy for life, 870 INDEX. WAYS. — Continued. 14. Replication to a plea of right of way justifying the removal of obstruc- tions, that the obstruction removed was a booth which plaintiff had erected at a fair, under a custom, and that in erecting the booth the plaintiff had left sufficient space for the public to pass, 743. Replication of a prescriptive right to place goods upon the public way, 743. WEIGHTS, FALSE. plea justifying under a distress, seizure of defective weights under authority of a leet, 648, Form 7. WEIR. form of declaration for throwing down the plaintiff's weir appurtenant to his fishery, 633. WELL. See Watercourse. WHARF. See Carrier, 98; Watercourse, 624. count against wharfinger for losing goods, 262. right of wharfinger to lien, 730, 731, note («*). WILFUL TRESPASS. See Trespass. WIFE. See Husband and Wife, 146, 401. WILL. profert of, no longer necessary, 7, note (/). probate of, not to be granted to an infant, 7, note (g). plea in bar in replevin, denial of the will. 689. denial of the bequest, 689. plea that testator was non compos, 689. that the annuitant (a widow), committed adultery, and replication, absence of husband for seven years, &c. 689. forms of issues, for trial of questions of execution of, sanity of testator and undue influence, 129, 130. WINDOWS. See Ancient Lights, 481. WITNESS. cannot in general recover for loss of time, 263. public duty and private necessity, 263. distinction between case of a man called to prove a fact he has seen or known and one who is called merely to give an opinion in a matter in which he is skilled. 263. the party who selects the latter must pay him, 263. remedy of witness, and icho liable, 263. attorney not liable to pay charges of skilled witness retained by him for his client, 263. conduct money, 263. witness in town cause or assize cause, 263. where witness does not attend, conduct money may be recovered back, 263, 633. may be attached for not obeying a subpoena, 633. may be sued for non-attendance, 633. damage must be sustained by plaintiff, 633. plaintiff must have had a good cause of action, 743. traverse of allegations in declaration, 743. Counts. 1. Against a witness for not attending on his subpoena at a trial, whereby tin- plaintiff was obliged to withdraw the record before the cause was called on, 633. 2. Against a witness for breach of contract to give evidence, 634. Other counts. by a witness for his expenses, 263. against a witness for not appearing, 263. for not appearing in an action of ejectment, 633, note (J). Form of pleas by, 743. WOOLFULLER. See Trover and Detinue, 731. WORK AM) .MATERIALS. See Agent; Broker; Common Counts; Mas- ter and Servant. as to when common count for lies, 28. when declaration should be special, 264. WOm Ap MATERIALS. -, //■/. n special coi ■ a I ha contract to when ma a work; 26 l. Uract '/<■■ order giiu n fm n i count averring i 265. Counts for. special form For work done an I for discharging plaintiff from com,, againsl workmen for emplo " ' ' *• for discharging plaintiff from I f01 tl ';;:;^;;' , " 1 il " li — " || - Plea. othercountfl ' '• to a count &» work in .posing a ■ indecent and libellous produ< WRITS. of ca. sa. and fi. fa. Se< Sherd i . of habere facias possession) of summons, l . declaration eight days after, 1. tin* it -, when no aon pros., ?5 Me cominemi an nt if tht action, l. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. Form L9-Series 4939 LAW LIBRARY AA