Non-performance of a condition in a rule of court, is no ground for an application to rescind Bayntun v. Bayntun, 15. Held also, that the company could not be called upon to carry coals to the extremity of their line (where it joined the Midland rail-it. way), and there shift them into other trucks or wagons, they having no convenience at that place for that purpose, and not affording such facility to any other person. Ib. 16. And, as to the first branch of the rule,Held, that the company were not common carriers of coal. Ib. 17. And, the complainant having asked by the rule more than he was entitled to, and the company having been partially in the wrong, the court refused to allow costs to either. Ib. 18. A railway company made arrangements, at one of their stations, with A., the proprietor of an omnibus running between the station and K., to provide omnibus accommodation for all passengers by any of their trains to and from K., and allowed A. the exclusive privilege of driving his vehicle into the station-yard for the purpose of taking up and setting down passengers at the door of the booking-office : II. 220 Attachment for disobedience of,—See AT TACHMENT. III. Service of. Where a rule cannot be served, it may be amended and enlarged, even though it has run out. Grissold v. Harding, Official Manager of the Royal British Bank, 556 And see ATTACHMENT,--JOINT STOCK COMPANY, I. 2. SALE OF GOODS. Contract within the 29 Car. 2, c. 3, s. 17. 1. The defendant went into the plaintiff's shop, and agreed to purchase certain goods in the aggregate exceeding the value of 101. The several articles, with their respective prices, were entered in the plaintiffs' "order book," on the fly-leaf at the beginning of which were written the names of the plaintiffs; and the defendant Held, that, in the absence of special circum-wrote his name at the foot of the entry, for the stances showing it to be reasonable, the granting of such exclusive privilege to one proprietor, and refusing to grant the like facilities to another who also brought passengers from K. as well as from other places beyond, was a breach of the prohibition against the granting of undue and unreasonable preferences contained in the 17 & 18 Vict. c. 31, s. 2. In re Marriott v. The London and South Western Railway Company, 499 19. As to costs, see In re Oxlade, 454, and In re Marriott v. The London and South Western Railway Company, 512 REASONABLE OR PROBABLE CAUSE. See BANKRUPt. REASONABLE TIME. purpose of verifying the bargain : Held a sufficient signature of the contract by both parties to satisfy the 17th section of the Statute of Frauds. Sarl v. Bourdillon, 188 2. One of the articles was described as "can dlestick, complete." It was proved, that, at the time the goods were selected, it was arranged that a "gallery" should be added to the top of the candlestick for the reception of a "mosquito-shade"-Held, that the memorandum was sufficient, without mentioning the "gallery." Ib. 3. At the time of the contract, it was agreed that the goods should be paid for by a check on the defendant's brother :-Held, that the omission of that stipulation did not vitiate the memorandum. 16. II. Warranty on sale of a specific chattel. The defendant sent to the plaintiff, the patentee of an invention called "Prideaux's Patent Self-closing Valve," and who carried on business under the name of "The Smoke Prevention Company," the following written order," Please prepare us a smoke-preventing valve," giving the dimensions of the furnacedoor to which it was to be applied. The plaintiff accordingly sent the defendant one of his patent self-closing valves, but it was found not to be of any use for the purpose for which it was designed. No fraud was imputed to the plaintiff; but the defendant, on being sued for the price of the article, relied on the statements contained in a circular which had been sent to him by the plaintiff,-to the effect that the patent article would consume smoke and effect a considerable saving in fuel,-as amounting to a warranty that it should be fit for the purpose to which it was to be applied: :- Held, That no such warranty could be implied; but that, the defendant having defined by the order the particular machine to be supplied, the plaintiff performed his part of the contract by supplying that machine, and was entitled to recover the price. Prideaux v. Bunnett, SCOTCH SEQUESTRATION. Force and validity of. 613 SURPRISE. See NEW TRIAL. TENDER. See COSTS, III. TRESPASS. Where maintainable. As to the right of a tenant to maintain trespass against his landlord for a forcible expulsion, where the landlord has a legal right to the possession of the premises,-quære? Delaney v. Fox, 166 UNDUE PREFERENCE. See RAILWAY COMPANY, II. VAGRANT ACT. Commitment under,-See PRISONER. WAIVER. Of forfeiture,-See BENEFIT BUILDING SOCIETY. WARRANTY. On sale of a specific chattel. The defendant sent to the plaintiff, the patentee of an invention called "Prideaux's Patent Self-closing Valve," and who carried on business under the name of "The Smoke Prevention Company," the following written order,-" Please prepare us a smoke-preventing valve," giving the dimensions of the furnacedoor to which it was to be applied. The plaintiff accordingly sent the defendant one of his patent self-closing valves, but it was found not to be of any use for the purpose for which it was designed. No fraud was imputed to the plaintiff; but the defendant, on being sued for the price of the article, relied on the statements contained in a circular which had been sent to him by the plaintiff,-to the effect that the patent article would consume smoke and effect a considerable saving in fuel,—as amounting to a warranty that it should be fit for the purpose to which it was to be applied : Held, that no such warranty could be implied; but that, the defendant having defined by the order the particular machine to be supplied, the plaintiff performed his part of the contract by supplying that machine, and was entitled to recover the price. Prideaux v. Bunnett, 613 WATERCOURSE. I. Rights of riparian proprietors. 1. Every proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any mate rial injury to the rights of the proprietors above, or below him on the stream, and may begin to exercise that right whenever he will. By usage, he may acquire a right to use the water in a manner not justified by his natural right: but such acquired right has no operation against the natural rights of a landowner higher up the stream, unless the user by which it was acquired affects the use that he himself has made of the stream, or his power to use it, so as to raise the presumption of a grant, and so render the tenement above a servient tenement. Sampson v. Hoddinott, 590 2. The plaintiff had immemorially enjoyed the benefit of irrigating certain meadows with the water of the Yeo, subject to the right of the occupier of a mill to detain the water for the use of his mill; and, although the natural flow of the river was prevented by the exercise of the miller's right, the water came down at such times that the plaintiff was enabled to irrigate his meadows effectually. But, of late, the defendant had, for the purpose of irrigating his own adjacent land, from time to time diverted the water after it had passed the mill, and before it reached the plaintiff's meadows; and, although it did not appear that the quantity of water which ultimately reached the plaintiff's meadows was thereby sensibly diminished, yet the effect was that the water was detained by the process of irrigation, and did not arrive till so late in the day that the plaintiff was deprived of the power to use it fully :— Held, that this detention of the water by the defendant was a use of it which was in its character necessarily injurious to the natural rights of the plaintiff as a riparian proprietor, and a ground of action. Ib. impregnating it with noxious substances, whereby the plaintiff's cattle were unable to drink the water, the defendant pleaded an immemorial right to use the water of the stream for the purposes of his trade of a tanner and fellmonger, and returning it polluted to the stream when so used, and also a prescriptive right for twenty and forty years respectively. The plaintiff new assigned "that he sued not only for the grievances in the pleas admitted and attempted to be justified, but for that the defendant committed the grievances over and above what the defences justified." At the trial, it appeared that the defendant and his father and grandfather had for a long series of years carried on the business of tanners at the place in question, using the water of the stream as they wanted it; but that, within the last twelve years, the tannery premises had been considerably enlarged, and the business (and consequently the pollution of the stream) increased fourfold. Without leaving any thing to the jury, the judge ruled that the defendant was entitled to a verdict on all the issues except the first and second : : WILL. Probate of,-See EXECUTORS AND ADMINIS TRATORS. WITNESS. Mandamus or commission for examination of. It is no answer to a rule for a mandamus to examine witnesses, that it is moved whilst issues II. Immemorial or prescriptive right to the use in law are pending for argument. Kelsall v. of running stream. Marshall, 5. To an action for polluting a stream, and And see ATTORNEY, II. 1. 266 22 14 INDEX TO THE REGISTRATION APPEALS. I. Cases decided upon the construction of the of the 6 & 7 Vict. c. 18, is not vitiated by the fact of the postmaster having received it out 62 REFORM ACT, 2 W. 4, c. 45. 23 II. Cases decided upon the construction of the 63 III. Disqualification of voter. 2. Where, therefore, a consolidated appeal Section 100.-Notice of objection. Ib. 3. Form of notice.]-A notice of objection to IV. Costs. De 3 END OF VOL. I. |