on summary conviction for assaults committed on females, or children under fourteen years, any person charged before them "sitting at a place where the petty sessions are usually held:"-Held, that a warrant of commitment for such offence, in the form given by the 11 & 12 Vict. c. 43, sched. (P. 1.), was good, although it did not state that the justices before whom the party was charged were sitting at a place where petty sessions are usually held.

As no certiorari issues out of the Court of Exchequer, a conviction is properly brought before it, if verified by affidavit.

A commissioner before whom an affidavit is sworn, ought to certify that any exhibit annexed is the document referred to in the affidavit. Allison, In re,

(2). Notice of Action.

561

In an action against a magistrate for having, in the execution of his office, acted maliciously and without reasonable and probable cause, he is entitled to notice of action as required by the 11 & 12 Vict. c. 44, s. 9. In such case, the question whether he acted bonâ fide, or used his office colourably, does not arise. Kirby v. Simpson, 358

MALICIOUS PROSECUTION. See CORPORATION AGGREGATE.

MAP.

See EVIDENCE, (4). MARRIAGE SETTLEMENT. See STAMP, (2). MASTER AND SERVANT. See PLEA, (1). MASTER OF SHIP. See BARRATRY.

MEMORANDUM, 397.

METROPOLITAN POLICE

ACT.

Under the 8th section of the Metropolitan Police Act, 2 & 3 Vict. c. 47, which enacts, "that it shall be lawful for the commissioners of police, if they shall think fit, on the application of any person or persons shewing the necessity thereof, to appoint and swear any additional number of constables to keep the peace at any place within the metropolitan police district, at the charge of the person or persons by whom the application shall be made, but subject to the orders of the said commissioner, and for such time as they shall think fit:" the appointment of a constable is an appointment of the person to act as a constable for all purposes, although the application to the commissioners mentions a particular purpose only, as, for instance, the necessity for an additional constable to execute distress warrants, to recover the amount due for parish rates. The necessity for such appointment is entirely a matter upon which the commissioners are to exercise their

own judgment. Allen v. Preece,

MINE.

(1). Cause of Action.

443

A declaration stated, that the plaintiffs were seised in fee of certain land and houses, which were contiguous to certain other land, and the plaintiffs were entitled to the support of their said land and houses by the said land to which the same were so contiguous, and by the strata under the same, and also by the strata of minerals under the plaintiffs' land; and the defendant wrongfully, and without leaving any

proper or sufficient pillars or supports, worked certain coal mines under the said land and houses of the plaintiffs, and under the land so contiguous to the same; by reason whereof, the soil and surface of the plaintiffs' land sank in, and the houses became ruinous.-Plea: that, after the committing of the alleged grievance, by an agreement between the plaintiffs and the defendant, after reciting that an action had been commenced against the defendant to recover compensation for the injury to the said land and houses by the defendant working the mines under the same, it was agreed that all further proceedings in the action should be stayed, on the terms that the defendant should make good all damage done to the premises, and should repair the same to the satisfaction of a surveyor, and should pay the loss of rent until the premises should be restored, and also the costs of the action and of the surveyor. Averment of performance in the terms of the agreement, and that the performance was accepted by the plaintiff in satisfaction and discharge of the claim in the declaration. New assignment: that the plaintiffs sue not for the damages and injury in satisfaction and discharge of which the agreement was entered into, but for that, after the repairing, by reason of the same acts which caused the damage, the land on which the said houses were erected further sank, by reason whereof the houses so repaired, and other houses of the plaintiffs being on the same land, became ruinous. On demurrer, Held-that the cause of action was not the damage done to the plaintiffs' land and houses by improperly working the mines, but the injury to the plaintiffs' right to have their land and houses supported by the contiguous land and strata of coal;

and, therefore, when any part of the necessary support was removed, although no actual damage, there was a complete cause of action for which the plaintiff's might have recovered prospective damage, and no new cause of action arose from the subsequent damage; consequently, the agreement stated in the plea and its performance were a bar to the action. Nicklin v. Williams, 259

(2). Measure of Damage.

The defendants covenanted with the plaintiff, that, if he would surrender to his lessor a certain lease, they would, within two years, or within such period as should be agreed in a new lease, which the lessor had agreed to grant to them, sink upon the demised premises a pit to the depth of 130 yards in search of coal, and in case a marketable vein of coal should be reached, pay to the plaintiff 2500. The plaintiff having sued the defendants for a breach of this covenant, gave evidence to shew that if the defendants had sunk the pit, marketable coal might have been found:-Held, that the plaintiff was entitled to more than nominal damages, and that the true measure of damage was the amount which he had lost by being deprived of the opportunity of finding marketable coal. Shearman,

(3). Construction.

Pell v. 766

In trespass for breaking and entering a tract of coal of the plaintiff, it appeared that commissioners, acting under the 1 & 2 Vict. c. 43, for regulating the working of mines in the forest of Dean, made an award, whereby they ascertained what persons were entitled to gales for coal within the said forest; and they caused plans to be made, upon which the situations of such gales were de

lineated, so far as the same could be conveniently ascertained; and they also made a schedule or description of the several gales, and they awarded that the gales should be of the extent and bounded as shewn and described in the said plans and schedule. The commissioners thereby also determined, that the defendant, as a free miner, was entitled to a certain gale, called "Prosper Free Level;" and that the plaintiff, as a free miner, was entitled to a certain other gale, forming part of a colliery called "Strip-and-at-it Colliery." The schedule thus described the "Prosper Free Level Colliery :" -"All that tract of coal in the Lowrey vein bounded as follows, that is to say, commencing at the point where the said level struck the coal, and extending in an eastward direction as deep as the said level will drain, to the line of stones numbered 48 and 49, to be set up as the western boundary of the Collingwood colliery, and in the land up to the old workings." The Lowrey vein ran in a diagonal direction from south to north, towards the surface of the land where it cropped out, and the Strip-and-at-it Colliery was below and immediately adjoining the "Prosper Free Level" on the south. It was the custom of miners, on obtaining a gale, to drive an adit or excavation from the surface of the land toward and into the coal in an horizontal direction, but at such an inclination upwards as to allow water to run and flow from the mine along the same to the surface of the land, and every miner who had driven such an adit or excavation was entitled to all the coal which could be drained by an adit or excavation continued from the point where the adit or excavation so made from the surface first struck the coal. Before the making of the

award, the Prosper Free Level Colliery had been worked for some distance eastwards by means of pits sunk from the surface. There was a level extending eastward from the point where the adit or excavation first struck the coal, and the defendant got coal at a point below that level, and at a depth which could not be drained by such level. According to the plan made by the commissioners, the defendant had exceeded the limits of his gale, and had worked coal within the limits of the gale awarded to the plaintiff:Held, in the Exchequer Chamber, that, in the description in the schedule of the "Prosper Free Level Colliery," the term "level" meant the then existing level, which was to be the measure of the southward workings, and was to afford an outlet for all the waters of the colliery merely by gravitation, and consequently there was no discrepancy between the schedule and plan, and the defendant, by working below that level, had trespassed on the colliery of the plaintiff.

Quare, whether, if there had been discrepancy between the schedule and the plan, the latter was to be wholly rejected. Brain v. Harris, 908

MINING COMPANY.

By indenture, E. granted to Y., his executors, administrators, co-adventurers, and assigns, full license, power, and authority to dig, work, mine, and search for ore, minerals, and metals in and throughout certain limits, and the same to carry away and dispose of to their own use, for twenty-one years. The adventure was a joint-stock company, conducted on the cost-book principle. P. was purser of the mine, which was purchased with money raised by calls on the shareholders. The mode of

transferring shares was by a certificate of the sale, addressed by the vendor to the purser and countersigned with an acceptance of the shares by the vendee; on the receipt of which certificate, the purser substituted the name of the latter in the costbook for that of the vendor. Sometimes the shareholders signed off their names in the cost-book ; in which case they ceased to be shareholders, and there was paid to them the value of their shares, estimated with reference to the machinery and ore, but not the mine :-Held, (per Martin, B., and Platt, B.), that shares in this company were not an interest in land within the 4th section of the Statute of Frauds; (per Parke, B., and Alderson, B.), that it was a question of fact for the jury, whether, under the above circumstances, the purser held the mine and machinery in trust to employ the machinery in working the mine and making a profit of it for the benefit of the co-adventurers, who were to share the profits only, in which case the shares might be bargained for and transferred by parol; or whether the purser held the mine in trust for himself and his co-adventurers, present and future, in proportion to their number of shares; and, if so, there was a direct trust in the realty, and consequently neither a bargain for, nor a transfer of, a share in such trust could be made without a note in writing.

A share in a joint-stock mining company is not goods, wares, or merchandise within the 17th section of the Statute of Frauds. Watson v. Spratley,

MONEY HAD AND RE

CEIVED.

See WAGER.

222

OVERSEER.

MONEY LENT.

See DEED.

MONEY PAID.

See GAMING CONTRACT. INTERROGATORIES, (3).

NECESSARIES. See SHIP, (2).

NEGLIGENCE.

See ATTORNEY.
SHIP, (1).

NEW TRIAL.

See COMMON LAW PROCEDURE ACT, (3).

NOTE.

See CONTRACT, (1).

NOTICE OF ACT OF BANKRUPTCY.

See BANKRUPT, (4).

NOTICE OF ACTION. See MAGISTRATE, (2).

NOTICE OF TRIAL. See COUNTERMAND OF TRIAL.

NOTING.

See WRIT OF SUMMONS, (1).

ORDER.

See JUDGE'S ORDER.

ORDER AND DISPOSITION.

See BANKRUPT, (1).

OVERSEER.

See BOND, (3).

PAROCHIAL FUNDS. See CHURCH.

PART OWNER OF SHIP. See BARRATRY.

PARTICULARS OF DEMAND. See COMMON LAW PROCEDURE ACTS, (1).

PASSENGERS ASSURANCE

COMPANY.

The plaintiff effected with the defendants a contract of assurance, which stated that the plaintiff was thereby assured by the Railway Passengers Assurance Company in the sum of 1000%., to be payable to his legal representatives in the event of death happening to the assured from railway accident whilst travelling in any class carriage on any line of railway in Great Britain or Ireland; or a proportionate part of the 1000l. will be paid to the assured himself in the event of his sustaining any personal injury by reason of such accident. The plaintiff was travelling in a railway carriage to a certain place, and on the arrival of the train at the railway station there, and after it had stopped, the plaintiff, in stepping out of the carriage, without any negligence on his part, slipped off the iron step, whereby he sustained an injury:-Held, first, that this was a "railway accident" within the meaning of the contract of assurance.

Secondly, that the damage could not be estimated by the proportion which the injury bore to the amount payable on loss of life.

Thirdly, that the plaintiff was entitled to recover damages for the expense and suffering occasioned by the injury, but not for his loss of

See PRINCIPAL AND AGENT. To an action by indorsee against acceptor of a bill of exchange for 551. the defendant pleaded, that he accepted the bill for the accommodation of the drawer, and without consideration; that the drawer indorsed it with other bills to the plaintiffs as a security for the repayment of 30%. then advanced by them to the drawer, and that after action the plaintiff's claim on the bill was satisfied and discharged by payment to them, by the acceptor of one of the other bills, of the sum of money so advanced, and all interest thereon; and that from thence hitherto the plaintiffs held and still hold the bill declared on, without value or consideration :-Held, on demurrer, that the plea was bad, both on the ground that it did not answer the damages in the action, and also, that the payment relied on as made by a stranger was not alleged to have been made for and on account of the debt,