1841. ATTWATERS v. COURTNEY. mind. I therefore think, that, in duty to myself, I ought to demand a compensation adequate to the time I have lost, and the trouble I have experienced during the time he was with me. Had he been regularly bound, the business would have demanded a handsome premium.” GURNEY, B., (in summing up).—The present claim on the part of the plaintiff is put on the ground, that, when this youth was placed with the plaintiff, the latter was to be paid for his being there; and the question for you to consider is, whether there was an agreement or understanding between the plaintiff and the defendant to that effect? So far as appears to us, the plaintiff never made any claim on the defendant for the board or the lodging, or for the teaching of the defendant's son, till the present action was brought; and in the letter that has been read, the plaintiff suggests that he ought to have a compensation for the trouble and annoyance he has had from the inattention of the lad; but he does not at all claim to be entitled to any thing for board, lodging, or teaching. You will say whether the board, lodging, and teaching, or either of them, were agreed to be paid for. That all depends on the evidence of Mr. King, who says, that, within six months after the son of the defendant went to the plaintiff, the defendant asked him what premium he ought to give. The plaintiff was then, and is now, a chemist and druggist; but he intended to go up to Apothecaries' Hall, and was delayed in so doing by the state of his health; and this appears to have been known to the defendant. Now, if the plaintiff had become a licentiate of the Apothecaries' Company, that would not only have been valuable to himself, but also valuable to this lad, as his apprentice; because, having served an apprenticeship to an apothecary, he would be himself entitled to go up to the examination, and, on passing it, would be entitled to practise as an apothecary himself. If you think that the lad went to the plaintiff on the terms that nothing was to be paid for him till the plaintiff became an apothecary, and that this lad was then to be apprenticed to him as such, you ought to find your verdict for the defendant. 1841. ATTWATERS V.. Verdict for the defendant (a). COURTNEY. Humfrey and G. Taylor, for the plaintiff. Thesiger and Corrie, for the defendant. [Attornies-Boydell, and Hopwood.] (a) See the cases of Wilkins v. Wells, 2 C. & P. 231, and Earratt v. Burghart, 3 C. & P. 381. Sittings at Westminster after Michaelmas Term, 1841. LUCKIE V. GOMPERTZ. ASSUMPSIT by the plaintiff, as indorsee, against the defendant as the acceptor of a bill of exchange, dated the Nov. 26. If in assumpsit on a bill of ex change by in acceptor, with an account stated, the de fendant plead 7th of August, 1841, drawn by John Osborn, payable to his own order, for £50 two months after date, and by him a count upon indorsed to the plaintiff. Second count upon an account stated. Plea to the first count, that the defendant did not accept the bill, (concluding to the country).-Replication, a similiter. There was no plea to the second count, and the award of the venire was in the usual form to try. C. Clark, for the defendant.-The record is imperfect, as there is no plea to the second count of the declaration; and there is no venire to assess damages, as upon a judgment by default, on the second count. Will your Lordship try the case in the present imperfect state of the record? to the first count that he did not accept, and do not plead at all to the second count, and the award of venire be in the usual form to try; the Judge at the issue joined, and, if a verdict Prius will try pass for the plaintiff, a nolle prosequi should be entered as to the count upon an account stated. 1841. LUCKIE v. GOMPERTZ. Lord ABINGER, C. B.-There is an issue properly joined as to the first count? Humfrey, for the plaintiff.-We can enter a nolle prosequi as to the second count. Lord ABINGER, C. B.-You can do so. The jury were sworn; and the acceptance being proved, there was a Verdict for the plaintiff for the amount of the bill of exchange, and interest. Humfrey. The plaintiff must enter a nolle prosequi as to the second count. Lord ABINGER, C. B.-That cannot be done at Nisi Prius. You shall have execution in a week; but you must make your record right (a). Humfrey, for the plaintiff. C. Clark, for the defendant. [Attornies-Taylor & Co., and J. Blachford.] (a) If a nolle prosequi be entered before issue joined, the plaintiff inserts it at the commencement of his replication, &c., and it consequently appears on the roll when it is made up; but if after issue joined, it is sufficient if it be entered at the time of entering final judgment.— Archb. Prac. by Chitty, Vol. 2, p. 1083. 1841. HEMMING V. BROOK. ASSUMPSIT by the plaintiff, as indorsee, against the defendant as the acceptor of a bill of exchange, dated May 1st, 1841, drawn by Edward Morris on the defendant, payable to the order of the drawer, for £250 three months after date, and by him indorsed to the plaintiff. Plea, that the defendant did not accept. the acceptor part of the The acceptance was proved, and the cause was un- amount, the defended. Taprell, for the plaintiff, stated, that a sum of £100 had been paid to the plaintiff by the drawer of the bill since the action had been brought. indorsee (unless for the balance Lord ABINGER, C. B.-Is your client suing as a trustee should give for the drawer of the bill? Taprell.-I am not aware that he is. Lord ABINGER, C. B.-That being so, your safest course is to take a verdict for the balance and interest only, and give the bill up to the drawer when you are paid. Verdict for the plaintiff-Damages 1537. 5s. 4d. Taprell, for the plaintiff. [Attornies-Hornby & T., and Wiglesworth.] the bill up to the drawer. 1841. Νου. 27. SMITH V. MARTIN. In an action by ASSUMPSIT by the plaintiff, as the indorsee, against the indorsee against the missory note, the defendant pleaded that the note was in the hands of G. V., and that, while it was so, the claim of G. V. on this note was by an order of Nisi Prius referred to an arbitrator; and that, before any award was made, the note was in violation of good faith delivered to the plaintiff; and that the plain tiff, at the time he took the note, had full know the defendant, as the maker of a promissory note for maker of a pro- 1281. 2s. 6d., dated the 1st of March, 1841, payable six months after date to Messrs. Fisher, Son & Co., and by them indorsed to Messrs. Vincent & Sherwood, and by Messrs. Vincent & Sherwood indorsed to the plaintiff. Plea—that the indorsement by Messrs. Vincent & Sherwood was an indorsement in blank, and that after that indorsement, and before the delivery of the note to the plaintiff, to wit, on the 9th of August, 1841, the note came to and was in the hands of one George Vincent, who then, and at the time of the making of the order of Nisi Prius hereinafter mentioned, was the lawful holder thereof; and that whilst the note was so in the hands of the said George Vincent as aforesaid, by a certain order of Nisi Prius made at the assizes at Croydon, holden on the 9th of August, 5 Vict., before the Right Hon. Sir N. C. Tindal, (stating the caption of the Nisi Prius side of the assizes), "it was ordered, with the consent of the said George Vincent, that, amongst other things, the said promissory note, and all claim of the said George Vincent in respect thereof, should be and the same was then and thereby referred to the award, order, arbitrament, and final determination of one William Bagley, Esq., barrister-at-law, in the said order mentioned, as by the said order, reference being thereunto had, will, amongst other things, fully appear; and the defendant further saith, that the said promissory note was delivered to the plaintiff after the making of the said last-mentioned order of Nisi Prius, before any award made by the said William Bagley, Esq., in respect thereof, and in violation of good faith, and in fraud and contempt of such order; and the defendant further saith, that, at the time the plaintiff took and received the said promissory note, he had full knowledge of all the premises ledge of all the premises: Replication, that the plaintiff had not any knowledge of the premises :Held, that, on these pleadings the defendant must begin, as the plaintiff's knowledge of the other facts was an essential part of the de fence. |