Common Law, Admiralty, &c.

8. Fraud.] By Coleridge, J., and Erle, J., that the replication was not proved, be-
cause the whole stipulation for a preference being a fraud on the part of the plain-
tiff towards other creditors, no part of it could be legally relied on by him as
forming a material inducement for this deed; and that the fact of the plaintiff
having obtained a preference for himself not vitiating the release as against him-
self, the defendant having also given a preference to others, was no fraud upon the
plaintiff. Ib.

9. Consideration.] To counts upon three several promissory notes, the defendants
pleaded that they were indebted to the plaintiff in 9891. 78., and had accepted four
bills of exchange for the amount, drawn by the plaintiff and payable to his order;
that the defendants compounded with their creditors, and that the plaintiff agreed
to the composition, receiving a preference beyond the other creditors, and executed
a release of his debt; that it was his duty to take up the four bills of exchange,
but that he neglected to do so, and the owners of the bills threatened to sue the
defendants, who, in order to induce the plaintiff to take them up, gave him the
promissory notes in these counts mentioned, and that there was no other considera-
tion for the giving of the notes. The plaintiff replied de injuria absque tali
Held, under the above circumstances, that the plea was proved; that, as the fraudu-
lent preference of the plaintiff did not make the composition void as against him,
there was no sufficient consideration for the giving the notes, as the plaintiff was
bound to protect the defendants from the consequences of liability upon these
bills. Ib.

causa: -

10. Right of Way - Certainty.] To a declaration in trespass quare clausum fregit,
the defendant pleaded that he was occupier of a close called Backside Mead, with
certain lands thereunto adjoining, and of another close called Mead, and divers, to
wit, two other closes next adjoining thereunto, and justified under a right of way
from the said Backside Mead over the locus in quo, and thence into the said Mead
for the better use, occupation, and enjoyment of the said Backside Mead, the said
lands adjoining thereto, and the said Mead and the said adjoining closes respec-
tively:-

Held, on special demurrer, that the plea stated with sufficient certainty the closes in
respect of which the said right of way was claimed. Holt v. Daw, 307.

11. Award Certainty Authority.] The declaration stated that a difference exist-
ed between the plaintiff and the defendant concerning certain shares bought by the
plaintiff for the defendant at his request, and for which the plaintiff had paid 122. ;
that they submitted themselves to the award of W. W. and R. P., concerning the
said difference; that the defendant promised to fulfil the award; that W. W. and
R. P. made their award concerning the said difference, and decided in favor of the
plaintiff, and found that 50l., which had been deposited by the defendant with the
plaintiff, was in part payment of the shares; and, "by their award," they “re-
quested" the defendant to pay the balance of the account:

Held, that it sufficiently appeared that the arbitrators had authority to make the
award, and to award a specific sum of money, although the nature of the differ-
ence was not stated. Smith v. Hartley, 383.

12. Request.] Held, also, that the "request" made by the award was equivalent to a
direction to pay. lb.

13. Balance.] Quare, whether the allegation that they awarded that the defendant
should pay the "balance" would have been good, if it had been pointed out on
special deinurrer that no specific sum was awarded. Ib.

14. Justification.] To a declaration which charged a pulling down a dwelling-house
in which the plaintiff was then actually inhabiting, a plea justifying the abatement
of the house by a commoner as a nuisance wrongfully erected upon the common,
alleged that the defendant had notice and was requested to remove his house,
which he refused to do:-

Held, that the plea was an answer to the action. Davies v. Williams, 269.

15. Interruption of Right.] Where, to an action of trespass, a claim of right acquired
by thirty years' user without interruption is set up extending over a space larger
than, but including, the locus in quo, and an interruption acquiesced in for a year,
is shown to have existed as to the locus in quo, but as to no other part of the space

Common Law, Admiralty, &c.

over which the right is claimed, the right under 2 & 3 Will. 4, c. 71, is disproved
as between the parties to the action, and affords no justification of the trespass
complained of. Ib.

16. Act of Stranger.] An interruption of a right acquired by user within the mean-
ing of 2 & 3 Will. 4, c. 71, s. 4, may be caused by the act of a stranger, and not
the owner of the servient tenement. Ib.

17. Prescription.] A plea claiming an immemorial right of common by prescription
in the occupiers for the time being of a messuage is bad in substance, and cannot
be supported even after verdict. Ib.

18. Issuable Plea.] A plea to the further maintenance of an action, brought by the
indorsee against the acceptor of a bill of exchange, stating that the defendant was
indebted to T. the drawer, that it was agreed between them that defendant should
pay by four instalments, and that the defendant should accept a bill; that the de-
fendant accepted the bill in the declaration mentioned as security for the payment
of the debt; that T. indorsed to the plaintiff to hold the bill as his agent; that the
defendant paid three of the instalments before action, and the fourth after action,
on the day when it became due, and that it became the duty of T. to return the
bill to the plaintiff:-

Held a bad and non-issuable plea. Besant v. Cross, 389.

19. Want of Consideration.] In an action by the payee against the maker of a prom-
issory note, the defendant pleaded that it was made by the defendant, at the request
of the plaintiff, as a collateral security for a debt due from J. B. to the plaintiff, and
that the defendant was not liable to pay the debt, or to give the note as security,
and that there was no other consideration:

Held, a good plea of want of consideration, after verdict. Crofts v. Beale, 408.
20. Libel — Aggravation.] In an action for a libel imputing to the plaintiff the
commission of a crime under aggravated circumstances, it is necessary to justify
the aggravating portion as well as the substantial charge of crime. Helsham v.
Blackwood, 409.

21. Justification of Whole.] So where the declaration set out a libel in which it was
alleged that the plaintiff was tried for murder, and that "it was understood that the
counsel for the prosecution were in possession of a damning piece of evidence,
viz., that he had spent nearly the whole of the night preceding the duel in practis-
ing pistol-firing;" and the plea stated that the plaintiff had committed murder, but
did not show that he had practised pistol-firing the night before, it was held that
the justification was insufficient. Ib.

22. Estoppel.] Semble, that a replication to such a plea by way of estoppel, stating
that the plaintiff was tried and acquitted, is not good. Ib.

See CARRIER. INDICTMENT, 1, 2,

POOR-LAW BOARD.

See Quo WARRANTO.

POOR RATES.

1. Vestry-men.] It is as competent to vestry-men de facto to join in making a rate for
the relief of the poor as vestry-men de jure. Scadding v. Lorant, 16.

2. Adjourned Meeting.] A meeting to make a poor rate was adjourned, but no further
notice of the adjourned meeting, or of the purposes thereof, had been given on the
doors of the churches and chapels of a parish, as required by a local act for that
parish:-

Held, that notice of the original meeting having been duly given, and the purpose for
which it was to be held, such notice extended to all adjourned meetings, such
adjourned meetings being held for the purpose of completing the unfinished busi-
ness of the first meeting, and, consequently, a poor rate made at such adjourned
meeting was valid. Ib.

3. Avowry.] In replevin, the defendant avowed especially under a distress for poor
rate assessed on plaintiff in respect of his dwelling-house, and as a collector of
such rate: -

Held, that the facts found as to the making the above rate sustained the avowry. lb.

Common Law, Admiralty, &c.

PRACTICE.

1. Right of Reply.] By a deed made between the Duke of B., of the first part, the
Marquis of C., his son, of the second part, and A. G. R., of the third part, it ap-
peared that the duke was entitled to certain estates for his life, with remainder to
the Marquis of C., and that he was also entitled to certain other real and personal
property, and that the real and personal property was subject to incumbrances
amounting to 1,027,282.; that the marquis covenanted with the duke to concur in
raising on mortgage upon the property the sum of 1,100,000l., to be applied in pay-
ment of the incumbrances; that the sum of 1,100,000l. should be considered as the
debt of the duke; that the marquis had proposed to the duke that the marquis
should take to, and absolutely purchase from, the duke all the equity of redemp-
tion, estate, title, &c., to the real and personal property comprised in certain
schedules to the deed, to which proposal the duke had acceded; that the duke
granted to A. G. R. all the lands, to hold the same, subject to the charges, in trust
for the marquis, and that the real and personal property should be the primary fund
for satisfying the debts and liabilities. There was also a covenant by the marquis
that he would apply all the moneys that should come into his hands in respect of
the said estates, chattels, &c., towards the relief and indemnification of the duke.
This deed having been stamped with the duty of 17. 15s., and nine progressive
stamps of 11. 5s. each, and the opinion of the commissioners of inland revenue hav-
ing been desired on the question under the 13 & 14 Vict. c. 97, they were of opin-
ion that the deed was chargeable under the 55 Geo. 3, c. 184, with the ad valorem
duty of 10007., and with nine progressive duties of 11. each, as a conveyance upon
the sale of property, but stated a special case for the opinion of this court:
Held, first, dissentiente Pollock, C. B., that the counsel for the appellant was entitled
to begin. Chandos v. Commissioners of Inland Revenue, 449.

Held, secondly, that the crown had the general right of reply; and, per Pollock, C. B.,
in the Exchequer the crown has the right to a general reply in all cases where the
crown has an interest. Ib.

2. New Trial.] A short-hand writer's notes of what took place at a trial cannot be
read on a rule to set aside the verdict. Stocks v. Mayor, &c., of Halifax, 491.
3. Sufficiency of Affidavit to enlarge peremptory Undertaking.] An affidavit in support
of a rule to enlarge a peremptory undertaking, on the ground of the absence of a
witness, is not sufficient if it does not state the name of such witness, nor allege
him to be a necessary as well as a material witness. Levien v. Heathwaite, 420.
4. Notice to Queen's Proctor.] Where the crown has an interest, and the queen's
proctor, on notice being given to him, neither consents to nor opposes the grant
prayed, he must be served with a decree. Hamilton, in the Goods of, (Ec.) 561.
5. Registry, Custody, and Examination of Papers.]

6. Probate of Will.]

See REGISTRY.

See WILL, 6,7. COSTS, 7. APPEAL. BILL OF EXCHANGE, 2.

1. Liability of Maker — Limited Authority.] The defendant agreed to join his brother
in making a promissory note on the representation that one R. would also join, and
that he, the defendant, should not be responsible unless R. also joined. The de-
fendant signed the note jointly with his brother; R. refused to sign, and the brother,
without the defendant's knowledge, delivered the note to the plaintiff for value: --
Held, that the defendant was not liable on the note. Awde v. Dixon, 512.

-

2. Pleading Consideration.] In an action by the payee against the maker of a
promissory note, the defendant pleaded that it was made by the defendant, at the
request of the plaintiff, as a collateral security for a debt due from J. B. to the
plaintiff, and that the defendant was not liable to pay the debt, or to give the note
as security, and that there was no other consideration:

-

Held a good plea of want of consideration, after verdict. Crofts v. Beale, 408.

QUARTER SESSIONS.

Court of.]

See COSTS, 2.

QUO WARRANTO.

Poor-law Board.] The office of clerk to a board of guardians, appointed by order
of the poor-law board, under sect. 46 of stat. 4 & 5 Will. 4, c. 76, is an office for
which an information in the nature of a quo warranto will lie. Regina v. Guardi-
ans of St. Martin's-in-the-Fields, 361.

Therefore, a mandamus to elect such a clerk, on the ground that an election which
had taken place was void, will not lie. Ib.

RAILWAYS CLAUSES CONSOLIDATION ACT.

See NUISANCE, 4.

RAILWAY COMPANY.

1. Injury to Lands.] Where a railway company do that which would be an actiona-
ble injury to land, unless done under the powers conferred by their act, the owner
or occupier is entitled to compensation under sect. 68 of stat. 8 & 9 Vict. c. 18.
Glover v. North Staffordshire Railway Co., 335.

2. Compensation.] A special verdict found that the only approach to the house of the
plaintiff was by a private road; that a railway, constructed under the powers of a
special act, crossed the road on a level, in an oblique direction, so that, at the point
where the railway intersected the road, a train coming along the railway at ordi-
nary speed could not be seen for more than seventeen seconds before it reached
that point; that there were gates on each side of the railway across the road,
which were kept locked, under the provisions of the act, a key being kept by a
servant of the company, whose business it was to unlock the gates when any per-
son had occasion to pass through them, and the plaintiff also having a key; and
that by reason of the above facts, and of the execution of the works by the com-
pany, the property of the plaintiff was depreciated in value:

Held, that the lands of the plaintiff were "injuriously affected," within sect. 68 of
stat. 8 & 9 Vict. c. 18, by the erection of the gates, and, per Lord Campbell, C. J.,
by the passage of trains along the railway. Ib.

-

Common Law, Admiralty, &c.

RAILWAY WORKS.

See NUISANCE, 5.

RATES.

Exemption Literary Society.] A society, called the London Library, established
for the purpose of lending to members books of a superior description, and to
which the members contributed a yearly subscription, was held to be a society for
the purposes of literature, supported by voluntary contributions under the 6 & 7
Vict. c. 36, s. 1, and, being certified as such under sect. 2, would be exempt from
local rates in respect of premises occupied for the purposes of the society. The
London Library, however, had let portions of its premises to three other scientific
societies, and it was held that this was not an occupation for the purposes of the
society, and that the premises, therefore, were not exempt from the rates. Claren-
don v. Rector, &c., of St. James, 393.

See LANDLORD AND TENANT. POOR RATES, 1.

REENTRY.

See LANDLORD AND TENAnt, 1.

REGISTRY.

Custody of Papers.] A testamentary suit was compromised, and a private act of Par-
liament, settling the rights of the several persons interested, obtained; the several
testamentary papers had, in the course of the proceedings in the cause, been
brought into the registry:-

:-

The court refused to order them to be delivered out for the purpose of being exam-
ined. Eyres v. Brodrick, (Ec.) 599.

1. Fraud of first Vendee - Subsequent Sale to innocent Vendee.] A sale of goods effected
by the fraud of the buyer is not an absolutely void transaction, but the seller may
elect to treat it as a contract. If he does not treat the sale as void before the buyer