AN

[See PLEAS AND PLEADING, and PRACTICE.] Whether the 17 Chas. 2. c. 8. (which prevents the abating of suits by the death of either party between verdict and judgment,) extends to cases where there has been no verdict, but the plaintiff has been nonsuited-quære. Dowbiggin v. Harrison, 8 Law J. K.B. 75, s. c. 10 B. & C. 480.

The defendant died after a nonsuit, and after a rule nisi for setting it aside, but before the rule came on for argument:-Held, that the suit did not thereby abate. Bull v. Price, 9 Law J. C.P. 28, s. c. 7 Bing. 237, s. c. 5 M. & P. 2.

On the hearing of a cause, the bill was dismissed with costs as against the defendants, such costs to be taxed, and, when taxed, to be paid by the plaintiffs. Before the costs were taxed, one of the plaintiffs died; the Master proceeded with the taxation, and made his certificate, notwithstanding the surviving plaintiffs objected to the taxation, on the ground that the suit was abated. On an application to quash the certificate, the Court held that the proceedings were regular. Meredyth v. Hughes, 3 Y. & J. 188.

ABORTION.

On an indictment for administering a drug to a woman to procure abortion, she not being quick with child, if it appear that the woman was not with child at all, the prisoner must be acquitted, although it appear that the prisoner thought that she was with child, and gave her the drug with an intent to DIGEST, 1828-1831.

destroy such child. Rex v. Scudder, 3 C. & P. 605. [Garrow]

ACCORD AND SATISFACTION.

In an action in the King's Bench by bill, payment to the plaintiff of a sum in satisfaction of the debt and costs, and paid after the writ and before the declaration, may be given in evidence under the general issue; and will be an answer to the action, unless the jury find that the transaction was in fraud of the plaintiff's attorney. Worswick v. Beswick, 8 Law J. K.B. 504, s. c. 10 B. & C. 676.

It was pleaded, in answer to an action of assumpsit, that a former action had been brought for the same cause of action; that the defendant had paid a sum of money into court under a rule for that purpose; that it was therefore agreed by the plaintiff and defendant, that the plaintiff should take out the money, and have his taxed costs; that the costs were accordingly taxed and paid, and that the plaintiff received them, together with the sum paid into court, in full discharge of the cause of action. It appeared in evidence that the money had never been taken out of court; and that, the plaintiff having altered his mind, his attorney offered to return the costs, which were refused; that he then took out a rule to discontinue on payment of costs, upon which rule the defendant's costs were taxed and paid :— Held, that the plea was not proved, and that the plaintiff was entitled to judgment. Power v. Butcher, 8 Law J. K.B. 217, s. c. 10 B. & C. 329.

B

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ACCOUNT.

(A) BILL FOR.
(B) ACCOUNT stated.

(A) BILL FOR.

Some individuals of a class may file a bill on behalf of themselves and the others of that class, praying an account, though the plaintiffs have executed separate releases which would bar their right, the bill charging that those releases were obtained fraudulently. Williams v. Smith, 7 Law J. Chanc. 129.

A had long employed B as his steward, professional adviser, and general confidential agent; disputes having arisen between them, an agreement was entered into between B and a clergyman, acting on behalf of A, by which a gross sum was to be paid to B, in lieu of all his claims, but no accounts or vouchers were rendered or produced by A, nor was there any bill of costs delivered; that agreement will not protect B from rendering an account to his principal. Jenkins v. Gould, 3 Russ. 385.

An information alleging that a corporation bad received grants of property, on condition of providing for the peace and security of the city, a bill was filed for an account of the property so held by it, in order that the surplus might be applied towards the defraying of certain public expenses; a demurrer to the bill was overruled. Attorney General v. Mayor of Carlisle, 8 Law J. Chanc. 46.

In a lease, the lessor covenanted, at the time thereinafter mentioned during the term, to cause any quantity of square oak-wood to be set out within some part of the lands or grounds then belonging to the lessor, as should be wanted for the benefit of the lessee, and to be used in the buildings intended to be made on the demised premises; and the lessee covenanted to pay and allow to the lessor, interest for the total amount or value thereof, after the rate of 41. per cent. on the value, and so in proportion for a greater or less quantity. Bill by assignees of the lease, for an account of what was due under that covenant, and for an injunction to restrain an action brought for a breach of it. A demurrer, for want of equity, was overruled. Pearson v. Hoghton, 3 Y. & J. 413.

A receiver of an estate in Jamaica, appointed by the Court of Chancery there, in a suit, by a second incumbrancer, to have the proceeds of the estates applied in satisfaction of the incumbrances, was ordered, out of the first proceeds, to pay to A, the first incumbrancer, in London, the interest on her charge, and to consign the produce to B, the plaintiff, a merchant in England, for sale. The receiver on making the first consignment, sent the bill of lading to A, with directions to deliver it to B, ou payment of her interest. The consignments were afterwards made, by B's direction, to other merchants, who, for several years, continued to pay A her interest, but afterwards ceased to do so; upon which she filed a bill in this country against them, the receiver and the owners of the estate, for an account of the consignments and payment of her interest, charging collusion between the consignees and the receiver. Demurrer, by the consignees, for want of equity, overruled. Fitzgerald v. Stewart, 2

Sim. 333.

Demurrer to a bill for a general account to be taken of all dealings and transactions between the parties, and for an injunction to restrain the defendant from taking out execution on a judgment recovered by him in an action at law-allowed, on the grounds that the statement in the bill did not furnish such a case of matter of account between the parties, as to entitle the plaintiff to the interference of the Court, on the principles of equity; in that it was nothing more than matter of set-off, or other defence at law, and if it had been a stronger case, the plaintiff, after having suffered the action at law to be tried and determined at Nisi Prius, had come too late to ask the interference of the Court. Moses v. Lewis, 12 Price, 502.

Where a bill for specific performance is dismissed on the ground of inadequacy of consideration, the Court will not aid a party in recovering his deposit, or giving him compensation for his loss, by decreeing an account. Kendall v. Beckett, 9 Law J. Chanc.

24.

If a possessory bill, filed for recovering an estate wrongfully retained, pray an account of the intermediate rents and profits, the general rule is, to decree the same from the time of filing the bill.

Prayer of bill decreed without costs. Edwards. Morgan-Morgan v. Edwards, 13 Price, 782.

Although a decree direct that all accounts be taken, the Master will not take the accounts of a partnership, unless especially directed so to do. Woolley v. Gordon, 1 Tam. 11.

If an error in a settled account is discovered and corrected before suit, and a bill be subsequently filed to surcharge and falsify, the corrected error is not a ground for a decree to surcharge and falsify. Datis v. Spurling, 1 Russ. & M. 64, s. c. 1 Tam. 199.

Upon a bill by the assignee of a judgment against the conusor, stating an award, in which a certain sum was found due upon the judgment, and praying that accounts might be taken against conusor upati the foot of the award and the judgment, the defendant, the conusor, cannot by his answer impeach the award, and raise questions which had been discussed before and decided by the arbitrators, as to the state of accounts between the defendant as conusee, and the conusor of the judgment. Hill v. Ball, 2 Bligh, N.S. 1, s. c. 1 D. & C. A.C. 164.

(B) ACCOUNT STATED.

[See LIMITATIONS, STATUTE OF.] A party may recover the amount of an I. O. U on a count upon an account stated. Payne v. Jenkins, 4 C. & P. 324. [Tenterden]

Proof of a mere offer by the defendant, before action brought, to pay a certain sum, unaccompanied by an admission that the debt is due, is not sufficient to support a count upon an account stated. Wayman v. Hillyard, 9 Law J. C.P. 30, s. c. 7 Bing. 700, s. c. 4 M. & P. 729.

An acknowledgment of a debt, without specifying any amount, is not sufficient to entitle the creditor to nominal damages on a count upon an account stated. Bernasconi v. Anderson, 2 M. & M. 103. [Tenterden]

In assumpsit on the money counts, and an account stated, it appeared that the plaintiffs' demand arose on a promissory note for 1504. given by the defendants to the plaintiffs' testatrix, written on a receipt

stamp. Evidence was given of an acknowledgment by the principal defendant, that he owed the deceased 150l. The consideration for the note was goods sold, but the declaration contained no count for goods sold :-Held, that the defendant's acknowledgment of the debt was sufficient to support the account stated. Ashby v. Ashby, 7 Law J. C.P. 221, s. c. 3 M. & P. 186.

In the years 1758 and 1764, H had paid the sums of 400l. and 2,000l. of the debts of A, and had from time to time, and at the period of these payments, received various monies belonging to A from his agents. A bill being filed by the representatives of A, to ascertain and raise certain charges upon A's estate, H, in his answer, made no claim in respect of the payments of the 2,000l. or the 400l.; and in two successive charges, sent in by him before the Master, he did not make any such claim; but at last, in the year 1817, he produced a charge, in which those sums were claimed with interest.

Held, in the Court below, and on appeal, that under these circumstances, the claims were barred by laches and length of time, notwithstanding the pendency of the accounts; and were properly disallowed in the same account in which H was charged with monies from time to time, and during the period in question advanced to him by the agents of A. Gore v. Lord Lorton and others, 2 Bligh, N.s. 286, 8. c. 1 D. & C. A.C. 190.

ACCOUNTANT.

A deputy assistant commissary-general beld to be a public accountant within the meaning of the statutes, subjecting the property of certain accountants with the Crown to seizure and sale, by satisfaction of the balance against them. Rex v. Fernandez, 12 Price, 862.

An accountant, who has been employed in a bankruptcy, has no lien on the bankrupt's certificate for the payment of his costs. Anon. 1 Russ. & M. 330.

ACCOUNTANT GENERAL.

By the statute 23 & 24 Geo. 3, of the parliament of Ireland, for securing the monies of suitors of the Courts of Chancery and Exchequer, by depositing the same in the national bank, which provides for the appointment of an Accountant General for the Court of Exchequer, it is enacted that-" so long as he observes the rules thereby or by the Court to be prescribed, he shall not be answerable for any monies which he shall not actually receive, but that the bank shall be answerable for all monies deposited with them"; and regulations for the transfer of stock are specified in the Act.

Under this Act A was appointed Accountant General of the Court of Exchequer in the year 1796. In the year 1810, A executed a power of attorney, authorizing S. B., his chief clerk, to make transfers in the bank books of any stock of which A should first have executed a transfer draft under his hand, ou cheque paper, pursuant to the orders of the Court. power was deposited at the transfer office at the bank.

This

Under this power S. B. producing a certificate or

3

transfer draft, purporting to be signed by A, but, in fact, forged, and in several respects not conformable to the particulars required by the power and the statutory regulations, obtained a transfer of stock from one cause to another, for the purpose of supplying deficiencies in the stock in the latter cause, which bad been caused by transfers under certificates formerly forged by S. B. Upon the discovery of this transfer from the first to the second cause, two creditors in the first cause, who had proved their debts, made a motion in the cause, calling upon A to refund the stock transferred; which, after hearing affidavits of the appellant and the Bank of Ireland, was ordered by the Court. Upon appeal against this order, it was questioned whether the Court of Exchequer had jurisdiction to make such order by a summary proceeding, not in a cause, and whether the House of Lords had jurisdiction to entertain such appeal; but eventually the order was reversed. O'Neill v. Fitzgerald, 3 Bligh, N.s. 24.

The value of paper, made for the purpose of forg ing assignats upon, to be exported to France, may be recovered in our courts, although the plaintiff knew to what purposes the paper was to be applied. Smith v. Marconnay, Pea. A. Č. 81.

Where the plaintiff, though he may have a primá facie case against the defendant, in one form of action, would be liable over to him in another form in respect of the same subject-matter, the plaintiff, in order that circuity of action may be avoided, will not be able to recover. Carr v. Stephens, 7 Law J. K.B. 336, s. c. 9 B. & C. 758, s. c. 4 M. & R. 590.

Where a party, by his own negligent or wrongful act, deprives another of sufficient presence of mind to take advantage of a warning given to avoid any danger or accident that may happen to him from that act, such warning will not discharge the wrong-doer from liability. Woolley v. Scovell, 7 Law J. K.B. 41, s. c. 3 M. & R. 105.

Where an act of parliament gives power to a company of proprietors of water-works to open the highway, in order to put on and repair pipes for the supply of water, they are liable to answer in damages for an injury occasioned in consequence of the highway being rendered foundrous through the want of repairing one of the pipes; although, by arrangement between them and their customers, the pipe in question was one of a class which were paid for, and were the property of the customers. Tucker v. the Chelsea Water-works Company, 8 Law J. K.B. 195.

Semble-That a man may lawfully pull down his house adjoining to that of his neighbour, without taking means to provide, a support for his neighbour's house, equal to that which was given by his

own.

But, whether it is not incumbent on him to give reasonable notice to his neighbour of his intention, in order that his neighbour may bimself take means to provide adequate support for his own housequare. Peyton v. the Governors of St. Thomas's Hospital, 7 Law J. K.B. 322, s. c. 9 B. & C. 725, s. c. 4 M. & R. 625.

Where notice was given to the occupier of adjoining premises of an intention to pull down and remove the foundation of a building, on part of the footing of one of the walls of which one of the walls of such adjoining premises rested:-It was held, that the party giving the notice was only bound to use reasonable and ordinary care in the work, and was not bound in any other way to secure the adjoining premises from injury, although from the peculiar nature of the soil he was compelled to lay the foundation of his new building several feet deeper than that of the old. Massey v. Goyder, 4 C. & P. 161. [Tindal]

In 1803 the plaintiff's house was built against the pine-end wall of the defendant's house, by permission. In 1829, the defendant made an excavation, in a careless and unskilful manner, in his own land, near to his pine-end wall, by which he weakened his pine-end wall, and, consequently, injured the house of the plaintiff :-Held, that an action on the case was maintainable for this injury. Brown v. Windsor, 1 C. & J. 20.

A tradesman, who has a cellar opening upon the public street, is bound, when he uses it, to take reasonable care that the flap of it be so placed and secured, as that, under ordinary circumstances, it shall not fall down; but if the tradesman has so placed and secured it, and a wrong-doer throws it over, the tradesman will not be liable in damages for any injury occasioned by it. In an action for an injury to the person, occasioned by the negligent and careless placing of such flap, the declaration of one defendant, who had suffered judgment by default, cannot be used as evidence against the other defendants. Daniels v. Potter, 4 C. & P. 262, s. c. 1 M. & M. 501. [Tindal]

A publican, who has a flap-door in the foot pavement of the street, opening into a cellar underneath his house, is bound, when he uses it, to conduct his business with such a degree of care as will prevent a reasonable person, acting himself with an ordinary degree of care, from receiving any injury by it. Proctor v. Harris, 4 C. & P. 337. [Tindal]

Where a person who is charged with negligence seeks to discharge himself by shewing that there was negligence in the plaintiff, inasmuch as he had warning of the danger, the defendant must shew that such warning came either from himself, or under circumstances which rendered it the duty of the plaintiff to act upon it.

Accordingly, in an action for injury done to the plaintiff's vessel by the anchor of the defendant's vessel striking her, it appeared that one of the crew of the plaintiff's vessel had been informed by one of a third vessel that his (the informant's) vessel was about to leave her then station, because there was an anchor somewhere near her; and, this being relied upon to charge the plaintiff's party with negligence in not avoiding the danger :-Held to be no answer to the action. Venus v. Pearson, 8 Law J. K.B. 263.

If, in an action for the negligence of the defen

dant's servants in managing a barge, so that the plaintiff's barge was run down, it appear that the accident happened from circumstances which persons of competent skill could not guard against; the plaintiff will not be entitled to recover; nor will he, if his men had put his barge in such a place, that persons using ordinary care would run against it; nor, if the accident could have been avoided, but for the negligence of the plaintiff's own men, it not being on board his barge at a time when it was lying in a dangerous place. Lack v. Seward, 4 C. & P. 106. [Tenterden]

A person misrepresenting the credit of another, though without any intention of defrauding the party to whom he makes the representation, is liable to make good damage occasioned by that party's giving credit in consequence of the representation; but only to the whole extent of the loss in consequence of credit reasonably given on the representation. Corbett v. Brown, 2 M. & M. 108. [Tindal]

A brought an action, for an attorney's bill, against B, but only recovered a small sum for money lent, as there had been no bill delivered :-Held, that A might recover the amount of the attorney's bill in another action, brought after the bill was delivered, although this was part of his demand in the first ac tion, and that it was not necessary that he should have been nonsuited in the first action, to entitle him to bring the second. Heming v. Wilton, 5 C. & P. 54. [Parke]

A became indebted to B in a sum not exceeding 40s., for the carriage of a parcel of goods; and in a month afterwards incurred another debt to B, not exceeding 40s., for the carriage of a second parcel. A brought two actions in the county court for the respective debts:-Held, that the causes of action were distinct, and that A was entitled to sue sepasrately for each demand, and this Court refused a prohibition. The King v. the Sheriff of Herefordshire, 1 B. & Ad. 672.

(B) PARTIES.

If one, being the owner of a shop and goods, allow A to be at this shop, and in his own name to sell and dispose of the goods as he pleases, and a portion of these goods be destroyed by the negligent driving of the coachman of B, while the servant of A is carrying them, A has such a qualified property in these goods, as will entitle him to maintain an action on the case against B. Whittingham v. Blorem, 4 C. & P. 597. [Patteson]

(C) NOTICE OF.

The plaintiff was employed by a private indivi dual in making a new road across common lands belonging to a township. The fenn-reeve, or person having the care of the town lands, finding the plain tiff thus trespassing, desired him to desist, and on his refusing so to do, caused him to be apprehended and taken before a Magistrate, who refused to receive the charge. The plaintiff thereupon brought tres pass against the defendant:-Held, that the latter was entitled, under the 41st section of the 7 & 8 Geo. 4. c. 30, to a month's notice of action. Wright v. Wales, 7 Law J. M.C. 20, s. c. 5 Bing. 336, s. c. 2 M. & P. 613.

The 136th section of the 57 Geo. S. c. 29, requir ing twenty-one days' notice of action, applies to the