Page images
PDF
EPUB
[blocks in formation]

P. & Co., owners of a cargo of tobacco, on the arrival of the vessel, placed the bill of lading, indorsed in blank, in the hands of W., as their factor for sale. W. entered the goods at the Custom-House in his own name, and, before the cargo was weighed, and without the knowledge of P. & Co., obtained a dock warrant for it in his own name, which he pledged with H. & Co. as a security for money advanced by them to him: -Held, on error in the Exchequer Chamber, that W. was not, under the circumstances, by reason of his being intrusted with the bill of lading, necessarily and impliedly intrusted with the dock-warrant, &c., within the meaning of the Factors' Act, 6 Geo. 4, c. 94, s. 2; but that whether he was so intrusted or not was a question of fact for the determination of the jury.

Held also, that the judge was not bound to state to the jury what was an intrusting in point of law. Hatfield v. Phillips,

FEIGNED ISSUE.
See NAVIGATION Act, 2.

647

[blocks in formation]

The defendant ordered goods of H., the del credere agent of the plaintiff, at a stipulated price, to be paid for on delivery; and on receiving notice that the goods had arrived at H.'s warehouse, went there, and directed a boy whom he saw there to put a certain mark on the goods. On the defendant's refusal to receive the goods by reason of a dispute about the price, an action was commenced against him by the plaintiff; after which, at H.'s request, the defendant wrote in H.'s ledger, at the bottom of a page, containing the statement of the goods in question, and headed with the plaintiff's name, the words "Received the above," which he signed:-Held, that there was no evidence to go to the jury of a delivery and acceptance, sufficient to satisfy the Statute of Frauds.

A memorandum in writing of a contract, to satisfy the Statute of Frauds, must have been made before action brought. Bill v. Bament.

36

ILLEGAL CONTRACT.

FREIGHT.

Goods were shipped at Bombay on board a ship of the plaintiff, a shipowner in Liverpool, and by the bill of lading were to be delivered "unto order, or to his and their assigns, on paying freight for the same." The bill of lading was indorsed by the shipper, and forwarded to defendants, East India agents in London, who indorsed it in blank to C. & Co., their factors in Liverpool. On the arrival of the goods at Liverpool, C. & Co. presented the bill of lading to the plaintiff, and received the goods; the plaintiff debiting C. & Co. with the freight. Afterwards C. & Co. became bankrupt without having paid the freight, whereupon the defendants claimed the goods from them, and took possession of them:-Held, on error brought upon the judgment of the Court of Exchequer, that the defendants were not liable to the plaintid for the unpaid freight; affirming the judgment of the Court below. Tobin v. Crawford,

716

[blocks in formation]
[blocks in formation]

INSOLVENT DEBTORS' ACT.
See EXECUTION, (2), 1.

PLEADING, III. (8), 2. Arrest of remanded Insolvent. Where a defendant has been conditionally discharged under the Insolvent Debtors' Act, 1 & 2 Vict. c. 110, s. 84, and is again arrested under a writ of capias, issued pursuant to the 85th sect. of the same act, it is not necessary that a judge's order should have been taken out for the defendant's arrest under the 3rd section of the act. Bilton v. Clapperton, 473

INSURANCE.

See PLEADING, I. (1), 2.

INTERPLEADER ACTS.
See EXECUTION, (2), 3.
(1). Costs.

1. Jurisdiction as to. Where an application for an interpleader rule is made to a judge at chambers, pursuant to the stat. 1 & 2 Vict. c. 45, s. 2, a judge at chambers only, and not the Court, has au

[blocks in formation]

(1). Action by. Description of Co-partnership in Declaration.

A declaration described the plaintiff as "one of the present public officers of certain persons united in copartnership for the purpose of carrying on the trade and business of banking in England, according to the stat. 7 Geo. 4, c. 46:"-Held bad on special demurrer, for not stating that the co-partnership was carrying on the trade and business of bankers, or had carried on such trade. Fletcher v. Crosbie, 252

JUDGMENT.

Jurisdiction under 1 & 2 Vict. c. 110, 8. 14.

A judge at chambers only, and not the Court, has authority, under the stat. 1 & 2 Vict. c. 110, s. 14, to make an order to charge a fund with the payment of money recovered by a judgment: if he makes an absolute order, the Court has jurisdiction to set it aside if wrongly made; but if he only makes an order nisi, the Court has no authority to entertain the question, although the judge expresses his desire to refer it to the Court. Brown v. Bamford, 42

JUDGMENT AS IN CASE OF NONSUIT.

See PRACTICE, (8).

JURY.

See WRIT OF Trial, (1). Defective Jury Process, effect of.

The Court refused, on motion, to set aside a verdict for the plaintiff, on the ground that no distringas jura

tores had been returned before the trial, although the objection had been taken before verdict. Gee v. Swann, 685

LANCASTER COURT OF COM-
MON PLEAS.
Executions on Judgment in-Form of
Affidavits.

On an application under the stat. 4 & 5 Will. 4, c. 62, s. 31, for leave to issue execution on a judgment in the Court of Common Pleas at Lancaster, the affidavit must state distinctly that the defendant was a resident within the jurisdiction of that Court at the time of the judgment or of action brought, and then had goods and chattels there, which he has since removed out of the jurisdiction. It is not sufficient to state that he is not now a resident in the county of Lancaster, and has not any goods or chattels within the jurisdiction; or, that he is not now a resident there, and has removed all his goods and chattels out of the jurisdiction since the judgment.

The affidavit must be intitled in the superior Court. Wigden v. Birt,

LANDLORD AND TENANT. See COSTS, (3).

COVENANT TO REPAIR.

50

[blocks in formation]

In 1829, B., being one of the assessors for the land-tax in the parish, signed an assessment, in which he was named as the occupier of the farm, and A. as the proprietor:Held, that this was evidence whence the jury might infer that a new tenancy at will had been created between the parties. Turner v. Doe d. Bennett, 643

(2). Notice to quit-Disclaimer. Lands being held by G. as tenant from year to year to D., D., who died in 1837, devised the same to trustees for the term of 140 years, upon trust (inter alia) to permit his wife E. D. to take the rents and profits thereof during her life. G. paid the rent to E. D. the widow, after D.'s death, from 1837 to 1840, and on receiving a notice to quit from her in March 1840, stated that he did not think she would turn him out of possession, as she had promised he should continue on as tenant from year to year: -Held, in an action of ejectment brought by the trustees for the recovery of the premises, that this was sufficient evidence of a disclaimer by G. of the title of the trustees, to warrant the jury in finding a verdict for the plaintiff. Doe d. Davies v. Evans, 48

LEASE.

See COVENANT TO REPAIR.

LEGACY. See EXECUTOR AND ADMINISTRATOR, (1).

LIMITATIONS, STATUTE OF. 863

LIEN.

See TENDER.

LIMITATION ACT. To what Rents it applies. The stat. 3 & 4 Will. 4, c. 27, s. 2, does not apply to rent reserved on a demise. Grant v. Ellis, 113

LIMITATIONS, STATUTE OF. See PLEADING, III., (2).

(1). Part Payment.

In an action on a promissory note by the payee against the maker, the note, when produced in evidence by the plaintiff at the trial, bore upon it an indorsement as follows:-"4th Aug. 1837,-Received of J. S. £6— B. X E." The whole of this entry, except the cross, was in the handwriting of the defendant, and there was no attestation, nor any proof that the cross was the mark of B. E., nor any proof of the fact of payment:Held, that the indorsement was not evidence of part payment, to take the case out of the Statute of Limitations. Eastwood v. Saville,

(2). Acknowledgment.

615

Debt on a bill of exchange by payee against acceptor for 201.Pleas, first, except as to 107. 11s., parcel &c., a set-off for board and lodging; and as to the sum of 107. 11s., payment of that sum into Court. -Replication, that the alleged debts and causes of set-off did not accrue within six years before the commencement of the suit, concluding to the country: to which the defendant, by his rejoinder, added the similiter. At the trial, the plaintiff having proved his case, and the defendant his set-off, the latter put in a letter from the plaintiff to the defendant, in which the following passages were relied upon, to take the case out of the sta

tute:" Before closing this, I have to request you will be pleased to send me in any bill or what demand you have to make on me, and if just, I shall not give you the trouble of going to law. If you refer to your books, you will find the last payment I made you was in May 1839; the day I have forgot. I shall leave town to-morrow, but shall be back in a few days, for a month, and if you will bring my bill in here to me by eleven, I shall be at your service:"-Held, that this was not a sufficient admission to take the case out of the Statute of Limitations.

Held, also, that the issue joined on the replication of the Statute of Limitations was no proper issue, and that there ought to be a repleader. Spong v. Wright, 629

LIQUIDATED DAMAGES. See PENALTY.

MASTER AND SERVANT.

The defendant, a builder, was employed by the committee of a club to execute certain alterations at the

club-house, including the preparation and fixing of gas-fittings. He made a sub-contract with B., a gas-fitter, to execute this part of the work. In the course of doing it, through B.'s negligence, the gas exploded, and injured the plaintiff:-Held, that the defendant was not liable in case for this injury. Rapson v. Cubitt, 710

MINE.

Proof of Possession of.

In trespass for breaking and entering the plaintiff's mine and taking coals, evidence of working by the plaintiff in another part of the same mine, within eighty yards of the place of the alleged trespass, coupled with a statement by the defendant, that he had got the coal, and was

[blocks in formation]

MONEY HAD AND RECEIVED. See ACCORD AND SATISFACTION, 1. (1). Appropriation of Payments. The plaintiff sold goods to B., taking his acceptances for the price, and sent them to the defendant as B.'s agent, who consigned them to his partners abroad for sale. While the acceptances were running, the plaintiff, doubting B.'s solvency, required further security; whereupon it was agreed between the plaintiff, B., and the defendant, that B. should write and deliver to the defendant a letter

authorizing him, out of any remit tances he might receive against the net proceeds of the above consignments, to pay the acceptances as they became due, if not honoured by him, B., previously to the receipt of such net proceeds. The letter was accordingly delivered to the defendant, and he assented to the terms of it. Before the bills were due, B. became bankrupt, and the defendant, having received the net proceeds of the goods, refused to pay any part thereof to the plaintiff, but handed them over to B.'s assignees:-Held, that the plaintiff was entitled to recover the amount of the acceptances from the defendant in an action for money had and received; this being an appropriation irrevocable except by the consent of all parties, for which the existing

« PreviousContinue »