the jurat:-The court refused to allow it to be filed. In re Tierney, 761

IV. Affidavits in Answer to "New Matter," under the 17 & 18 Vict. c. 125, 8. 45. Practice as to allowing affidavits to be filed in answer to "new matter," under the 45th section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. Simpson v. Sadd, 757

AGREEMENT. See CONTRACT.

ALDERMAN.

See LANDLORD AND TENANT, IV.

AMENDMENT.

I. Of Record at Nisi Prius.

1. The declaration in an action for giving a false character of one P., a clerk, alleged that the defendant fraudulently represented to the plaintiff that the reason why he had dismissed P. from his employ, was, the decrease in his business, and that the defendant recommended the plaintiff to try P., and knowingly suppressed and concealed from the plaintiff the fact that P. had been dismissed. from his employ on account of dishonesty.

It appeared at the trial, that P. had been guilty of dishonesty while in the defendant's employ, but that the defendant had not mentioned that fact to the plaintiff when he recommended him to try P. It further appeared, however, that P. had not been dismissed from the defendant's employ on account of his dishonesty, but really for the reason which the defendant had assigned to the plaintiff.

The judge at the trial refused to allow the declaration to be amended by inserting an allegation "that P., whilst in the defendant's employ, was guilty of dishonesty," instead of the allegation "that P. had been dismissed from the employment of the defendant on account of dishonesty:"-Held, that the amendment was properly refused, -the matter in controversy between the parties being, not whether the defendant had fraudulently suppressed the fact that P. had been guilty of dishonesty, but whether he had given the true reason for having dismissed him. Wilkin v. Reed, 192 2. Semble, that it is for the judge at the trial, looking at the record and at the evidence, to say what is "the real question in controversy between the parties," within the meaning of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, s. 222.

two jointly and severally, but only jointly;" that, after the accruing of the causes of action in the count mentioned, the plaintiff sued A. for money had and received and in trover, and recovered a judgment against him for 1007. and costs; and that the causes of action in respect of which the plaintiff so recovered that judgment against A. included all the causes of action to which the plea was pleaded.

It appeared in evidence, that the defendant and A. had wrongfully converted the goods of the plaintiff, by selling them; that the proceeds of the sale (1507.) were received by the defendant alone; and that the plaintiff had sued A., and recovered a verdict for 1001., as the value of the goods so converted; but that, in consequence of A.'s insolvency, he had obtained no satisfaction.

Upon its being objected, at the trial of this action, that these facts did not sustain the plea, the judge allowed the defendant to amend by substituting for the words above in inverted commas, the following, "the said money was money received for and as being the proceeds of the sale of the goods in the last count and hereinafter mentioned :"—

Held, that the amendment was properly allowed, though the judge imposed no terms on the defendant,-and that the amended plea afforded a complete answer to the claim of the plaintiff in this action. Buckland v. John8on, 145

II. On Trial by the Record. Upon a trial by the record, the court amended the declaration by inserting therein the true amount recovered by the judgment, under the 15 & 16 Vict. c. 76, s. 222. Hunter v. Emmanuel, 290

III. Of Special Case. The court will not allow a special case to be amended, by raising a point which the parties have not raised for their consideration. Hills v. Hunt, 1

IV. Of Pleadings after Argument,—See Canham v. Barry, 621

APPEAL.

3. To a count for money had and received, the defendant pleaded, that the "said debt for money received became due from, and was contracted by, the defendant jointly with A., and not by the defendant alone, nor by the

APPRAISEMENT.

See ARBITRAMENT.

ARBITRAMENT.

I. Submission.

1. What amounts to.]-The plaintiffs declared against the defendants, as sureties, upon a deed, dated the 30th of March, 1853, between A., of the first part, the plaintiffs (a corporation) of the second part, and the defendants of the third part, whereby A., in consideration of a certain sum of money to be paid as therein mentioned, covenanted with the plaintiffs that he would, on the execution thereof, commence, and, within three months from the date of the deed, finish in a workmanlike manner, a gas-holder tank for the plaintiffs, -with a penalty for default; and the defendants, as sureties for A., covenanted for the due performance by A. of all the covenants, &c., in the deed contained on the part of A., which should be subsisting and not annulled or avoided, and that they would, in case of default, pay the plaintiffs such sum as and for liquidated damages as J. E., the plaintiffs' engineer, should in his opinion adjudge to be reasonable and proper to be paid for such default, not exceeding 3007. The declaration alleged a default by A., and that the said J. E. had in his opinion adjudged 300%. to be reasonable and proper to be paid to the plaintiffs as and for liquidated damages for A.'s default.

The defendants further pleaded,-that, before the adjudication of J. E., the defendants and A. gave him notice that they respectively revoked any submission or reference to arbitration contained in the deed:-Held, bad; the adjudication by J. E. being a mere appraisement, and not an award. The Northampton Gas-Light Company v. Parnell,

630

2. By Bankrupt.]-It is competent to a bankrupt, if he will, to become party to a reference concerning a matter which has passed to his assignees; and, if the bankrupt be ordered by the arbitrator to pay costs, the court will enforce the payment by rule under the 1 & 2 Vict. c. 110, s. 18. In re Milnes and Robert8011, 451

II. Execution of Award.

1. A cause and a Chancery suit to which A. and B. were parties were by an order of Nisi Prius referred to an arbitrator. C., who was a party to the Chancery suit, but not a party to the action (which arose out of it), refused to become a party to the reference :-Held, that his refusal was no ground for allowing A. to rescind the order of reference. Wilson v. Morrell, 720 2. Where a matter is referred to the award of three arbitrators, or any two of them, the two who execute the award must do so at the same time and place, and in the presence of each other, otherwise it is not what the parties stipulated for, viz. the joint judgment of the two. Peterson v. Ayre, VOL. XV.-70

III. Certainty and Finality of Award. 1. An action of ejectment in which there were two several demises by A. and B., was referred, with power to the arbitrator, "in the event of his finding for the lessors of the plaintiff," to order immediate possession to be given of the land and premises in question in the action to the lessor of the plaintiff A., and also how and in what manner such possession should be given, and, if not given, how it should be taken, and who should be at the expense thereof.

The arbitrator made his award as follows:"I do award in favour of the lessors of the plaintiff, and do order that immediate possession be given of the land and premises in question in this action to the lessor of the plaintiff A., and that the defendant do consequently, and at his own proper cost and expense, pull or take down the wall or brick-work forming a gable-end of a long room, and which said wall or brick-work he has erected upon the land and premises of the said lessors, or so much of the said wall or brick-work as now stands four inches and a half, or thereabouts, over and upon the land and premises of the said lessors, and upon a certain wall or fence which divides the property of the said lessors from that of the defendant: And I do further award, that, should the defendant refuse to pull or take down the said wall or brick-work the subject of this action and reference, that the said lessors shall, by themselves or servants, have full power to pull or take down the said wall or brick-work in question, or so much thereof as aforesaid, and, if necessary for such purpose, to enter in and upon the premises of the said defendant, and that he shall pay and be answerable for all expense incurred in their so doing :"

Held, that the award was not bad, for deciding "in favour of the lessors of the plaintiff;" and that it was sufficiently certain in the direction as to how and in what manner, and at whose expense, possession was to be given or taken. Mays v. Cannell, 107 2. A cause and all matters in difference between the plaintiff and the defendants were by an order of Nisi Prius and a subsequent rule of court, referred to an arbitrator, the costs of the cause to abide the event, and those of the reference and award to be in the discretion of the arbitrator, who was to be at liberty to make two several awards at different times, by the first of which he was to raise questions of law for the opinion of the court; and it was by the rule of court ordered "that neither party should enforce payment of anything which might be found due by the arbitrator, under the first award, until the arbitrator should have made his final award."

The arbitrator stated a case for the opinion of the court; and, in the result, the plaintiff

became entitled to 22721. 28. damages. The defendants afterwards obtained an act of parliament for regulating their affairs, and under that act the plaintiff received an allotment of shares in lieu of the damages so awarded to him. It having become unnecessary and impracticable to proceed further with the reference, no second award was ever made. The plaintiff, however, signed judgment, and issued an execution against the defendants thereon, for the costs of the action :—

The court set aside the judgment, with costs, holding, that, in the absence of a final award, the plaintiff was by the rule of court precluded from enforcing his remedy for such costs. Wood v. The Copper Miners' Company,

464

IV. Expenses of Witnesses,-See COSTS, I. 2, 3. V. Expenses of Award.

The

of costs and charges to be paid to attorneys in the county courts shall be prepared, and submitted for the approval of certain of the judges, and that, "from and after a day to be named by such judges," the scale so allowed shall be in force in every county court. act then goes on to provide, that "all costs shall be taxed by the clerk of the court ;" and that "no attorney shall have a right to recover at law from his client any costs or charges not so allowed or taxation." Business was done by an attorney in a county court, and an action brought in respect thereof, before the allowance of any scale of costs under the above act:-Held, that he was not precluded from recovering his costs. Leverson v. Shaw, 282

ATTORNMENT.

See EJECTMENT, I. 2.

AUTHORITY.

228

1. Delivery of]-An attorney, being consulted by a client who was under a charge of criminally assaulting a female child of tender years, obtained from the client a sum of 2007., to do the best he could for him, but with an understanding that no account of the transaction should be kept or rendered. Having succeeded in procuring the prisoner's discharge, the attorney was called upon after the lapse of nearly six years to deliver a bill: -The court refused to order him to do so; but referred the whole matter to the master, who in the result discharged the rule, but without costs. In re Edward Vann, 341 2. Taxation.]-An order for the taxation and payment of an attorney's bill (after a previous order to change the attorney) cannot be made upon an ex parte application. Gillow v. Rider, 729 3. For Business done in a County Court.]-The 15 & 16 Vict. c. 54, s. 1, provides that a scale

ADMINISTRATORS.

AWARD.

See ARBITRAMENT.

BAD DEBTS. See INSURANCE, 4, 5.

BAILIFF.

Fees of,-See COUNTY COURT, III.

BANKRUPT.

I. Trading.

Cowkeeper.]-A case stated by an arbitrator for the opinion of the court, found, that A., & farmer, who was under covenant with his landlord to "consume the whole of the turnips and other roots upon the premises;" that part of the stock kept by A. upon the farm consisted of cows; that his intention in keeping them was to sell a considerable quantity of the milk obtained from them, which he did by daily sending a man to sell and deliver it at a neighbouring town to customers some of whom were regular and others chance customers; that he sometimes made butter from the surplus milk, and sold it in like manner; that keeping cows to the extent A. did, was a good, proper, and husbandlike, as well as a profitable way of managing the farm as he did; and that cows were the most profitable stock he could keep :-Held, that A. was not a cowkeeper within the bankrupt act, 12 & 13 Vict. c. 106, s. 65. Bell v. Young, 524

II. Submission to Arbitration by.

It is competent to a bankrupt, if he will, to become a party to a reference concerning a matter which has passed to his assignees;

and, if the bankrupt be ordered by the arbitrator to pay costs, the court will enforce the payment by rule under the 1 & 2 Vict. c. 110, 8. 18. In re Milnes and Robertson, 451

BARON AND FEME.

See HUSBAND and Wife.

BILL OF EXCHANGE.

What amounts to Payment. The word "retire" in reference to a bill of exchange, is susceptible of various meanings, according as it is applied to various circumstances: if the acceptor retires the bill at maturity, he takes it entirely from circulation, and it is in effect paid; but if an endorser retires it, he merely withdraws it from circulation in so far as he himself is concerned, and may hold it with the same remedies as he would have had if he had been called upon in due course, and had paid the amount to his immediate endorsee; and this latter is the ordinary meaning of the word "retire." Elsam v. Denny,

BILL OF LADING. See SHIP AND SHIPPING, L.

BURIAL-GROUND. Rate.

87

It appeared at the trial, that P. had been guilty of dishonesty while in the defendant's employ, but that the defendant had not mentioned that fact to the plaintiff when he recommended him to try P. It further appeared, however, that P. had not been dismissed from the defendant's employ on account of his dishonesty, but really for the reason which the defendant had assigned to the plaintiff:

Held, that this evidence did not support the declaration. Wilkin v. Reed, 192 2. The first count of the declaration alleged that the plaintiff was the first and true inventor of "improvements in the manufacture of fire-arms, also of cartridges, of priming, and of wads or wadding for fire-arms," and had petitioned for a patent; that his petition had been referred to the solicitor-general; that the solicitor-general had required and allowed the title of the said invention to be amended, as an invention for "improvements in the manufacture of cartridges and of wads or wadding for fire-arms," and given a certificate of allowance; and that the defendant, well knowing the premises, but maliciously intending to injure the plaintiff, and to prevent him from obtaining letters-patent for his said invention, falsely, fraudulently, maliciously, and wrongfully, and without any reasonable or probable cause, represented to the solicitor-general that he had an interest in opposing a grant of letters-patent to the plaintiff, and gave notice that he had applied for a patent and obtained provisional protection for an invention for "improvements in cartridges," and that, in consequence of the alteration in the title of the plaintiff's patent, he had reason to apprehend that such alteration in the title might admit of his invention being embraced in the plaintiff's patent; whereas, in truth, the alleged invention for which the defendant had obtained provisional protection was not his invention, but a fraudulent imitation of the plaintiff's invention, and the defendant had no interest in opposing a grant of letters-patent to the plaintiff.

There was a second count alleging that the defendant's knowledge of the plaintiff's invention was derived from a confidential communication thereof from the plaintiff, and that the defendant was seeking a patent in breach of such confidence: and the declaration concluded with a general allegation of special damage, that, by means of the premises, the solicitor-general refused to allow the plaintiff's application for letters-patent to proceed, and the plaintiff was thereby prevented from obtaining and failed to obtain a patent for his said invention, and was put to expense in opposing a grant of letterspatent to the defendant, &c. :

Held, that the special damage alleged did not naturally flow from the grievances charged

1. By a charter-party for a voyage from Sundswall to Southampton, it was stipulated that the owner should receive "the highest freight which he could prove to have been paid for ships on the same voyage when the vessel passed Elsinore, but not less than 90s. per St. Petersburg standard hundred:"-Held, that this did not contemplate strictly legal proof; but that the owner would be entitled to the highest rate of freight which the master, to the knowledge of the freighter, was in a position to prove, by reasonable evidence, to have been paid. Gether v. Capper,

39 2. By a charter-party for a voyage from Sundswall to Southampton, it was stipulated that the owner should receive "the highest freight which he could prove [or 'prove by evidence'] to have been paid for ships on the same voyage or passage by water when the vessel passed Elsinore, but not less than 90s. per St. Petersburg standard hundred :-Held, that the charter-party did not contemplate strict legal proof of the actual payment of the higher rate of freight, but reasonable evidence that such higher freight had been paid or contracted to be paid: and (dubitante Jervis, C. J.,) that the owner could not entitle himself to a higher rate of freight than the 90s., by proving that other vessels had been chartered at such higher rate for a voyage to London,-that not being, within the fair intendment of the charter-party, the same voyage. Gether v. Cooper, And see PLEADING, VI.

CIRCUITY OF ACTION. Plea in Avoidance of,-See PLEADING, VI.

CODICIL. See DEVISE.

COMMISSION.

696

For taking the Acknowledgment of a Married

Woman. Enlarging Return,-See HUSBAND AND WIFE.

COMMON LAW PROCEDURE ACT, 1852.
Construction of.

s. 11,-See PRACTICE, II. 4.
ss. 55, 56,-See PLEADING, IX.
s. 17,-See PRACTICE, I.

s. 138,-See PRACTICE, III. 2.
s. 170,-See EJECTMENT.

8. 222,-See AMENDMENT.

COMMON LAW PROCEDURE ACT, 1854.
Construction of.

ss. 34, 35,-See APPEAL, I.
8. 45,-See AFFIDAVIT, IV.
s. 82,-See LETTERS-PATENT.

COMPANIES CLAUSES CONSOLIDATION ACT, 1845.

See JOINT-STOCK COMPANY, 2.

CONDITION PRECEDENT.

The plaintiffs declared against the defendants, as sureties, upon a deed, dated the 30th of March, 1853, between A., of the first part, the plaintiffs (a corporation) of the second part, and the defendants of the third part, whereby A., in consideration of a certain sum of money to be paid as therein mentioned, covenanted with the plaintiffs that he would, on the execution thereof, commence, and, within three months from the date of the deed, finish in a workmanlike manner, a gas-holder tank for the plaintiffs, -with a penalty for default; and the defendants, as sureties for A., covenanted for the due performance by A. of all the covenants, &c., in the deed contained on the part of A., which should be subsisting and not annulled or avoided, and that they would, in case of default, pay the plaintiffs such sum as and for liquidated damages as J. E., the plaintiffs' engineer, should in his opinion adjudge to be reasonable and proper to be paid for such default, not exceeding 3007. The declaration alleged a default by A., and that the said J. E. had in his opinion adjudged 3007. to be reasonable and proper to be paid to the plaintiffs as and for liquidated damages for A.'s default.

The defendants pleaded,-that the plaintiffs did not execute the deed until after the expiration of three months from the date thereof: Held, bad, inasmuch as the execution of the deed by them was not a condition precedent to their right to sue for a breach of any covenant therein contained; and that the circumstance of their being a corporation made no difference in this respect. The Northampton Gas-Light Company v. Parnell, 630