ACTION—when maintainable: obstruction of flow of
water: liability of owner of land for wrongful
act of strangers]—In an action for obstructing
the flow of water from a stream to certain works
of plaintiff, the evidence shewed only that defen-
dants were owners of the soil of the stream, and
that the obstruction had been placed there in
order to use the water for certain works before
it came to plaintiff's works, but without the
sanction of defendants and by persons who were
strangers to defendants, and between whom
and defendants there was no connexion by title
or otherwise. Defendants derived no advantage
from the continuance of the obstruction, and
offered to allow plaintiff to enter and remove it,
but they declined to do so themselves:-Held,
that there was no evidence of a wrongful con-
tinuance of the obstruction by defendants, and
that under these circumstances plaintiff was
rightly nonsuited. Saxby v. the Manchester,
Sheffield and Lincolnshire Rail. Co., C.P. 153

when maintainable: customary right of inha-
bitant householders of a district to flow of water:
diversion action by individual inhabitant
without proof of actual damage]—An individual
inhabitant householder of a district may main-
tain an action against one who infringes a
customary right to the flow of water common
to the inhabitant householders of such district,
without proving actual damage to himself per-
sonally by reason of such infringement, where
the acts done by the person infringing such
right would, if repeated and continued, be evi-
dence of the existence of a right in such person,
in derogation of the right of the inhabitants of
the district. Harrop v. Hirst, Ex. 1
The principle laid down in the notes to Mellor
v. Spateman, 1 Wms. Saund. 346, b, viz., "that
NEW SERIES, 38.-INDEX, Com. Law.

wherever any act injures another's right, and
I would be evidence in future in favour of the
wrongdoer, an action may be maintained for
an invasion of the right without proof of any
specific damage," approved and followed. Ibid.

when maintainable: right to support where
land supported by water contained in spongy soil:
rights of owners of adjacent lands derived from
common grantor]-The owner of a piece of land
of a wet and spongy character, in the neigh-
bourhood of a town, conveyed a portion of it
to plaintiff, with a stipulation that buildings
of a certain aggregate value should be erected
upon it. He subsequently conveyed the remain-
der of the land to persons, from whom it came
to church trustees, who employed defendant to
build a church on it. To obtain a firm founda-
tion for the church, defendant was obliged to
excavate to a considerable depth, the effect of
which, from the spongy nature of the soil, was
to drain off not only the water in the land on
which he was excavating, but that in plaintiff's
land, and to cause plaintiff's land and certain
cottages, which he had built on it without
draining it, to subside and crack. His land
would have subsided even if it had not been
weighted with cottages. Defendant was guilty
of no negligence or unskilfulness:-Held, that
defendant was not prevented from draining the
land by any general principle of law, nor by
any covenant in plaintiff's favour, on the part
of the common grantor of the lands, to be
implied from the doctrine that a man cannot
derogate from his own grant. Popplewell v.
Hodkinson, (Ex. Ch.) Ex. 126

when maintainable. See Contract.

Form of, trespass or case. See Trespass.
A

ANCHORAGE TOLLS-consideration for: legal origin:
port]-Although an alleged custom to receive
dues or tolls from vessels anchoring on land
covered with navigable water as 66 'customary
dues or tolls for the use of the soil" is illegal,
and cannot be enforced, except upon proof of
a legal origin for the custom, as was decided in
Gann v. the Free Fishers of Whitstable (35 Law
J. Rep. (N.s.) C.P. 29), yet such legal origin
may be shewn by evidence that immemorial
payments were made as dues or tolls for anchor-
age within the precincts of a port. Foreman
v. the Company of the Free Fishers and Dredgers
of Whitstable (House of Lords), C.P. 345
The mere fact of the payment of anchorage dues
or tolls from time immemorial is in itself strong
(and, per Lord Chelmsford, unless contradicted,
conclusive) evidence that the anchorage ground
was within the precincts of some port. Ibid.
The fact that the anchorage ground is neither
wholly nor partially artificial; i. e., that no
particular service connected with the toll is
rendered, is immaterial; as also are the ques-
tions whether the vessel was anchored volun-
tarily or of necessity, for the purposes of trade
or otherwise. Ibid.

ANCIENT LIGHTS-enjoyment for twenty years:
unoccupied house. -The right to light may be
acquired by actual enjoyment thereof under the
Prescription Act (2 & 3 Will. 4. c. 71), s. 3,
the house having been structurally complete,
the floors laid and the windows put in for a
period of more than twenty years, although the
internal fittings had not been completed nor
the house put in a state fit for habitation, nor
in fact inhabited until a period within twenty
years. Cortauld v. Legh, Ex. 45

ANIMALS-liability of owners of dogs for injuries
to cattle or sheep: "cattle" includes horses]-By
28 & 29 Vict. c. 60. s. 1, after reciting that it
is expedient to amend the law as to the liability
of the owners of dogs for injuries done to
cattle and sheep by such dogs, it is enacted,
that "the owner of every dog shall be liable in
damages for injury done to any cattle or sheep
by his dog; and it shall not be necessary for
the party seeking such damages to shew a
previous mischievous propensity in such dog,
or the owner's knowledge of such previous
propensity, or that the injury was attributable
to neglect on the part of such owner":-
Held, that horses are included under the term
"cattle" in the section. Wright v. Pearson,
Q.B. 312

ANNUITY-when a provable debt in bankruptcy.
See Debtor and Creditor.

APPORTIONMENT-of rent. See Metropolis Roads

Act.

APPRENTICE-Covenant for personal service: per-
formance impossible by act of God]-A covenant
in an apprenticeship deed that the apprentice
will honestly remain with and serve his master
for a certain term is, though in terms absolute,

subject to an implied condition that the appren-
tice shall continue in a state of ability to per-
form his contract. To an action, therefore, by
the master for breach of the covenant, a plea
that the apprentice was prevented by the act
of God, to wit, permanent illness, which arose
after the making of the deed and before breach,
is good. Boast v. Firth, C.P.1
ARBITRATION-boat-race: jurisdiction of referee:
stakeholder]-K. and S, two watermen, agreed
to row a 66
right-away sculler's race" upon the
river Thames, the start to take place at half-
past two p.m., the rowing to be according to
the recognized rules of boat-racing, and a referee
to be chosen at the last deposit, "whose deci-
sion shall be final." In watermen's races it is
the practice for the men to start themselves.
A referee was appointed, and the race com-
menced; but a foul having taken place, the men
were ordered by the referee to row over again.
On the following day they came to the starting-
place. After several fruitless attempts to start,
K. rowed up to the referee's steamboat, which
had drifted out of sight of the men, and com-
plained that S. would not start. The referee
looked for S, but not seeing him, told K. to
inform S. that he must start, and that if he
would not to row over without him. K. then
went away, and the referee afterwards saw him
row over the course, but did not hear him speak
to S. The referee having decided that K. was
entitled to the stakes, it was found by the jury,
in an action against the stakeholder, that the
referee's order was not communicated to S, and
that a fair opportunity of starting was not given
to him:-Held, that under the agreement it
was necessary, to empower the referee to award
the stakes, that there should be a race or a start;
and, assuming that the referee had power in
certain cases to direct one of the men to start
without the other, yet, as the terms of his order
were not conveyed to S, there never had been
a start. The referee was therefore without that
which was the foundation of his authority to
award the stakes, and his decision was void.
Sadler v. Smith, Q.B. 91

sending back award: admitted mistake of
arbitrator]-A cause was referred to a Master.
At the arbitration it was admitted that some-
thing was due to the plaintiff. The Master certi-
fied that nothing was due. It was admitted on all
hands and stated by the Master that he had made
a mistake. The defendant, however, objected
to the matter going back to the arbitrator :-
Held, that the Court had power, and ought to
send it back. Flynn v. Robertson, C.P. 240

Appointment of umpire by a Judge. See
Company. And see Lands Clauses Consolidation
Act.

ARREST-privilege of person accused of criminal
charge out on remand]-The privilege from
arrest on civil process of a person whose atten-
dance in court is required for the due adminis-
tration of justice, extends to the party accused

of a criminal charge when out on bail on remand,
as well as to the prosecutor and witnesses.
Gilpin v. Benjamin, Ex. 50

See Bail. Irish Bankruptcy.

ASSIGNMENT. See Lease.

ATTORNEY-lien for costs]-The lien of an attorney
for costs is confined to cases where there are
fruits of the litigation actually acquired, such as
a clean verdict or a judgment or an acknowledg
ment of a debt; but the Court will not interfere
to cause it to attach where after verdict and
before judgment a rule for a new trial has been
obtained, so as to prevent a settlement of the
action between the parties, without a prior
satisfaction of the attorney's costs. Sullivan v.
Pearson, Q.B. 65

re-admission of]-Where an attorney has
been struck off the roll for misappropriation of
his client's money, it is a condition precedent to
the Court entertaining an application for his
re-admission that it be shewn he has made
reparation, if he can, or, if he cannot, that he
has used sincere and earnest efforts to make
reparation as far as possible. Ex parte Poole,
C.P. 216

AUDITOR-Money certified to be due. Mode of
recovery. Bankruptcy. R. v. Master, Q.B. 104;
M.C. 73

BAIL-arrest on mesne process: render to Queen's
Prison or county gaol]-The provisions of
11 Geo. 4. & 1 Will. 4. c. 70. s. 21, enabling
defendants held to bail on mesne process to be
rendered in discharge of their bail to the prison
of the court out of which the process issued, or
to the common gaol of the county in which they
were arrested, apply to arrests by virtue of writs
of capias under 1 & 2 Vict. c. 110. Mainwaring
v. Milner, Q.B. 49

M. having been arrested in Yorkshire upon a
capias under 1 & 2 Vict. c. 110, the defendants
executed a bail-bond, by which they undertook
that if he should be condemned in the action
he should satisfy the costs and condemnation or
render himself to the custody of the keeper of
the Queen's Prison :-Held, in an action on the
bond, the declaration alleging that M. did not
render himself to the custody of the keeper of
the Queen's Prison, that a plea that M. in due
time rendered himself to the common gaol of
the county in which he was arrested, was good.
Ibid.

BANKER-Cheque. See Bills and Notes.
BANKRUPTCY act of bankruptcy: fraudulent
transfer by bill of sale to execution creditor]-
Execution was levied upon goods on the pre-
mises of a trader, who was in insolvent circum-
stances and had ceased to carry on his trade,
for a debt exceeding 501. The trader executed a
bill of sale, by which he mortgaged all his stock-
in-trade and effects to secure the judgment debt,
and the sheriff withdrew :-Held, that whatever

might have been the case before the passing of
the Bankruptcy Act, 1861, s. 73, the bill of sale
was now an act of bankruptcy, for it prevented
the creditors from treating the seizure and sale
as an act of bankruptcy and obtaining a distri-
bution of the property seized by means of an
adjudication in bankruptcy; and that any benefit
which might be expected to arise from post-
poning a forced sale was a benefit only to the
execution creditor, and not to the rest of the
creditors, who took no benefit under the secu-
rity. Woodhouse v. Murray (Ex. Ch.), Q.B. 28

trover by assignees where bankruptcy on
debtor's own petition: fraudulent preference]—
Where an adjudication in bankruptcy is on the
debtor's own petition, and goods of the bank-
rupt have been delivered by him to a creditor by
way of fraudulent preference and sold or other-
wise disposed of by the creditor before the
petition, the assignees cannot recover the value
of these goods either in an action of trover or
for money had and received. Marks v. Feldman,
Q.B. 220

fraudulent preference: partnership: joinder
in action of solvent partner and assignees of bank-
rupt partner]-Where one of two partners has,
in fraud of the other and by way of fraudulent
preference, indorsed bills of exchange of the
firm to a separate creditor of his, in payment of
a private debt, and has afterwards become
bankrupt, his assignees may treat the indorse-
ment as void as against them, and, if the
indorsement be invalid also as against the sol-
vent partner by reason of the creditor having
taken the bills with knowledge of the fraud, the
assignees and such solvent partner may sue
jointly in trover for the recovery of the bills
from such creditor. Heilbut v. Nevill, C.P. 273

act of bankruptcy: "fraudulent transfer or
delivery": removal of goods]-Eight days before
his bankruptcy, a trader caused his household
furniture and stock-in-trade to be removed from
his premises, in defendant's van, to the ware-
house of the defendant, who advanced money on
the security of the goods without any knowledge
of the state of the trader's affairs:-Held, that
neither the removal of the goods nor the deli-
very of them to the defendant, in the absence of
anything shewing an intention to transfer the
property to him, was a "fraudulent delivery or
transfer," so as to constitute an act of bank-
ruptcy within the meaning of section 67. of the
Bankrupt Law Consolidation Act, 1849. Isitt v.
Beeston, Ex. 89

agreement for mortgage of fixtures: right of
assignees to remove]-Plaintiff and B. agreed
that B, on payment of 1,000l. premium and
putting up fittings to the value of 500l., should
have a lease from plaintiff of certain premises,
and that plaintiff should advance 1,000l. to be
secured by the premises so fitted up. B. entered,
put up the fittings, and continued in possession;
but nothing more was done. B. became bank-
rupt, and his assignees, under an order of the

Court of Bankruptcy, severed and sold the
fittings:-Held, that plaintiff was equitable
mortgagee of the premises and fittings; that the
12 & 13 Vict. c. 106. s. 12. conferred no title on
the assignees; and that the assignees had no
right to remove the fittings. Tebb v. Hodge,
C.P. 217

BANKRUPTCY (continued)-mutual credit: deposit
of bills of exchange as collateral security for
advance]-The defendants accepted two bills of
exchange drawn by J. & Co., who undertook
to provide funds before maturity, and as col-
lateral security deposited with the defendants
cotton, coffee and certain bills of exchange.
The defendants discounted away the bills so
deposited, and obtained the assent of J. & Co.
to their selling the goods and receiving the
proceeds, and acted thereon. But after the
cotton was sold, and before the coffee was sold,
J. & Co. became bankrupts. The proceeds of
the deposited bills and goods left a balance
in the hands of the defendants after payment
of the two bills accepted by them, but a larger
balance was owing by J. & Co. to the defen-
dants on other matters. The plaintiffs, who were
assignees in bankruptcy of J. & Co., brought
an action to recover the balance of the proceeds
of the deposited bills and goods :-Held, that
the plaintiffs were not entitled to succeed, inas-
much as the only question was whether at the
time of the bankruptcy of J. & Co. there was
such a mutual credit between them and the de-
fendants as to entitle the latter to retain the
proceeds of the coffee against the larger balance
owing to them, and that after the arrangement
authorizing the sale of the cotton and coffee
there was such a mutual credit. Astley v. Gurney,
(Ex. Ch.) C.P. 357; in the Court below, 111

debt or demand provable: contingent liability:
interest]-In January, 1866, a sum of money
in consols was lent to the promoters of a bill
before parliament. The plaintiffs, the defendant
and others entered into an undertaking with
the lenders that if the bill was thrown out the
consols should be returned, and that if it passed
(which was the event that happened) an equal
amount of stock should be transferred to the
lenders, and a sum in the nature of interest on
the value of the consols at the time they were
lent, from the end of six months to the date of
the transfer, should be paid to the lenders. In
the following April the defendant was adjudged
bankrupt. In July he obtained his order of
discharge. In August the bill was passed, but
the consols were not transferred till the May
following, and the plaintiffs were thereupon
compelled to pay, under their agreement, a sum
of money as the equivalent for interest :-Held,
in an action against the defendant for contri-
bution in respect of the amount so paid, that
his bankruptcy afforded no answer to the claim,
as his liability could not have been valued at
the date of the adjudication so as to be provable
either under the 12 & 13 Vict. c. 106. s. 178, or
24 & 25 Vict. c. 134. s. 154. Cary v. Dawson,
Q.B. 300

-

discharge, when a bar to an action: "con-
tract or promise": "demand in the nature of
damages"]-Plaintiff rented a room of defen-
dant, who was tenant of the whole house under
P, the owner. Defendant's rent being in arrear
P. put in a distress, and seized plaintiff's goods.
To obtain the release of his goods plaintiff was
obliged to pay 15l. to P. Defendant then became
bankrupt, and obtained his order of discharge;
subsequently to which plaintiff commenced an
action to recover from defendant compensation
for the injury and loss sustained by plaintiff in
consequence of defendant allowing the rent
to be in arrear :-Held, that the right of action
was not barred by the discharge in bankruptcy,
inasmuch as the defendant was not liable" by
reason of any contract or promise to a demand
in the nature of damages," within the meaning
of the 153rd section of the Bankrupt Act, 1861,
so as to make the claim of the plaintiff provable
under the bankruptcy, Johnson v. Shapte, Q.B.

318

detention of bankrupt after production of his
certificate of protection: liability of gaoler]—
The Bankrupt Law Consolidation Act (12 & 13
Vict. c. 106), s. 113, which makes "any officer"
who shall detain a bankrupt in custody after
he shall have produced his protection liable
to penalties, does not apply to the gaoler or
governor of a prison where the bankrupt is
taken after his arrest, but only to the officer
actually arresting the bankrupt. Myers v. Veitch,
Q.B. 316

resolution of creditors to suspend bankruptcy
proceedings: rights of execution creditor and of
bankrupt's assignee]-At a meeting of the cre-
ditors of a bankrupt held after the appointment
of the creditors' assignee, the majority passed
a resolution that no further proceedings should
be taken in bankruptcy, on the ground that it
was advisable to accept an offer by the bankrupt
to take all his estate and effects, and pay all
his creditors a certain composition in one month
from that time. This resolution having been
confirmed at an adjourned meeting, held pur-
suant to section 110. of the Bankruptcy Act,
1861, the assignee directed the messenger to
withdraw from possession. The day after he had
so withdrawn, and before the bankrupt had
obtained his order of discharge, a non-assenting
judgment creditor seized the bankrupt's goods
in execution:-Held, on an interpleader issue,
that the goods were the assignee's as against
such creditor, since the assignee had never
given up possession of them, nor had his pro-
perty in them been divested out of him, whether
the resolution was or not within the said 110th
section. M'Donald v. Thompson, C.P. 364

See Irish Bankruptcy.

BANKRUPTCY AMENDMENT ACT - Retrospective
operation of. See Execution.

Baron and FemE—chose in action: money received

for use of wife: declaration not shewing wife's
interest in money claimed]-Defendant received
money for the use of a married woman, and
wrote offering to forward it to her if required.
The wife shortly afterwards died, and there was
no evidence that her husband, who survived her,
had in any way interfered, either to allow his
wife to have the control of the money, or to
prevent her from dealing with it. The wife's
administratrix having brought an action against
defendant for money had and received to the
use of the wife,-Held, by the majority of the
Court (Channell, B., Keating, J., Montague
Smith, J. and Cleasby, B.), that plaintiff was
entitled to recover, as the right to the money
was a chose in action, like a bond or promissory
note, and had never been reduced into possession
by the husband. But held, by Kelly, C.B., that
plaintiff was not entitled to recover, as the hus-
band and wife could not have joined in an action
for money had and received against defendants,
and because no action could be maintained by
the representative of a married woman in respect
of a chose in action where the wife's interest
did not appear on the face of the record. Fleet
v. Perrins (Ex. Ch.) Q.B. 257

BILLS AND NOTES-time for presentment: notice of
dishonour country banker and customer]-The
payee of a cheque drawn upon a bank at Fal-
mouth paid it on Tuesday to the credit of his
account in a bank at Truro, which is about ten
miles from Falmouth. The Truro bank, having
no agent at Falmouth, sent the cheque by the
post of the same day to their London agents,
who received it on Wednesday morning. On
the same day the cheque was handed by the
agents through the clearing-house to the London
agents of the Falmouth bank, and by the latter
forwarded by the post of the same day to the
Falmouth bank, who received it on Thursday
morning. On the same morning the London
agents of the Falmouth bank failed, and the
agents of the Truro bank wrote at once to
the Falmouth bank requesting them to pay the
cheque or return it. The Falmouth bank replied
by letter on Friday refusing to pay the cheque
or return it. On Saturday the Falmouth bank
stopped papment. On the same day the manager
of the Truro bank informed the payee of the
non-payment of the cheque, and subsequently
informed him that his account had been debited
with the amount of it, though it was not debited
till about a fortnight afterwards. It appeared
that it was the usage of bankers when a cheque
is paid in by a customer to enter the amount of it
to his credit, and if the cheque is not paid, then
immediately upon its dishonour to return it to
the customer, and upon so doing to debit his
account with it. It also appeared that with
regard to cheques drawn upon one Cornwall
bank and paid into another, there had been
during several years an arrangement by which
the cheques were sent by post to the bank upon
which it was drawn, and the accounts between
the two banks adjusted at a weekly settlement.
The Truro bank had never been a party to this
arrangement, and if they had followed it the
NEW SERIES, 38.-INDEX, Com. Law.

cheque in question would have been received
by the Falmouth bank on Wednesday, and the
payee credited with the amount :-Held, follow-
ing Hare v. Henty, 30 Law J. Rep. (N.8.) C.P.
302, that the Truro bank was entitled to debit
the payee with the amount of the cheque, as the
cheque had been presented within reasonable
time, and the payee had received reasonable
notice of its dishonour. Prideaux v. Criddle,
Q.B. 232

presentment: notice of dishonour: reasonable
expectation of payment]-The drawer of a cheque,
the state of whose account with the drawee is
such that he has no reasonable expectation that
the cheque will be paid on presentment, is not
entitled to notice of dishonour before being sued
by the holder of the cheque. Carew v. Duck-
worth, Ex. 149

notice of dishonour, where excused: ostensible
place of business]-A bill of exchange was ac-
cepted by a joint stock company and indorsed
by defendant, who was a director of the com-
pany. The bill was accepted and indorsed at
the office of the company, which defendant was
in the habit of attending. A notice of dishonour
was sent by the holders to defendant, addressed
to him at the office of the company, but as he
had ceased to attend the office it did not reach
him until some time afterwards. The holders
also made inquiries, as to defendant's private
residence, of other directors of the company, and
at an office with which the company had had
dealings, but not at the office of the company
itself:-Held, that there had been sufficient
notice of dishonour. Berridge v. Fitzgerald,
Q.B.. 335

acceptor charged in execution by holder after
payment by indorser: indorser's remedy over
against acceptor]-The drawer or indorser of a
dishonoured bill of exchange becomes entitled,
by paying the amount of it to the holder, to an
immediate right of action against the acceptor,
although the holder continues to retain the bill
as security for costs; and the right of such
drawer or indorser to sue the acceptor is not
affected by the circumstance that the holder,
after receiving the amount and before payment
of his costs, has charged the acceptor in exe-
cution for the amount of the bill and then
released him from custody. Woodward v. Pell,
Q.B. 30

signature obtained by fraud without negli-
gence: action by bona fide holder]-In an action
by a bona fide holder for value of a bill of ex-
change against defendant as indorser, the Judge
directed the jury that if defendant's signature
was obtained upon a fraudulent representation
that the instrument was a guarantie, and defen-
dant signed it without knowing that it was
a bill, and under the belief that it was a gua-
rantie, and if defendant was not guilty of any
negligence in so signing, he was entitled to
the verdict:-Held, a right direction. Foster v.
Mackinnon, C.P. 310

B