OYSTER FISHERY.

Construction of Rules and Orders.

1. The Faversham Oyster Fishery,-a company in the nature of a prescriptive corporation,— had power by its constitution (confirmed by an act of parliament of 3 Vict. c. lix.) at certain courts called water-courts to make orders, rules, and regulations for the government and management of the company, and for imposing and levying fines and penalties on its members for the breach or non-observance of such orders, rules, and regulations; and also to appoint a foreman and a jury of twelve who should have the management and regulation of the fishery, and of the affairs of the company.

By a water-court order of the 31st of July, 1790, it was ordered amongst other things, "that all such tenants [free men or members of the company] as have boats shall work for the company in regular turn, unless that he or his boat should be incapable of doing business, that is to say, each man, being so capable, shall succeed him who worked last, as he stands in the company's list." And by a subsequent order of the 29th of July, 1797, reciting the order of the 31st of July, 1790, it was "declared, ordered, and decreed that nothing in the said recited orders, or either of them, contained, was meant or intended to deprive or hinder, or shall deprive or hinder, the foreman and jury of this company, or the major part of them assembled on the company's affairs, from exercising at all times their ancient and accustomed discretionary powers of regulating the business of the said company, by postponing or setting aside the turn of any of the tenants of this manor and hundred, in doing any business of the said company, for reasons appearing to the said foreman and jury, or the major part of them, to be satisfactory, expedient, or proper, for that purpose."

On the 12th of July, 1852, an order to the following effect was made by the foreman and jury:-"As the commencement of the season for the selling of oysters is drawing near, in order to provide salesmen, it is ordered that the foreman put out a notice for persons, freemen of the company, who are desirous of going to London as salesmen, to give in their names to him or any one of the jury, on or before the 19th instant; and that the jury proceed to the electing of such on or as soon after that time as convenient. And, in order that the company may be provided with fitting and proper vessels to take the oysters to market, it is ordered that notice be posted at the usual place, to require those freemen that have boats fitting and proper, to give notice to the foreman or any one of the jury of their intention of working for the company."

There was no evidence of the giving of such notice by the foreman under the above order; but the plaintiff had notice of it on the 14th of July.

On the 19th, a further order was made by the foreman and jury, as follows:-"It is ordered that three men (naming them) go to Billingsgate, as salesmen. The following are the names of those that have given notice, according to the notice of the 13th of July, of their intention of carrying oysters for the company (naming the men and their boats): and it is ordered that the above-named boats do carry the oysters to Billingsgate Market, and that no boats be allowed to take a turn with them until the 31st of October."

The plaintiff not having given notice of his intention to carry until the 18th of August, the defendant,-acting under the order of the 19th of July, refused to employ him and his boat until after the 31st of October.

Before the year 1850, the practice had been, that the foreman and jury ascertained, either by notice or by personal application, before the commencement of each season, who could carry, and then the freemen, after they had ceased to be employed elsewhere, gave notice, and came in after standing by one turn. The plaintiff himself had, however, been excluded in the year 1851, by reason of his omission to give notice of his readiness.

In an action against the foreman for excluding the plaintiff and his boat from turns of carrying, under the above circumstances:-

Held, that the order of the 31st of July, 1790, was properly alleged in the declaration as giving the freemen having boats an absolute right to work in turn, and that the incapacity of the man or his boat, not being in the nature of a qualification or limitation of the right, need not be noticed. Hills V. Hunt,

1

2. The defendant justified under the orders of the 12th and 19th of July, 1852, stating, that, by the former, those freemen who intended to work for the company were thereby required to give notice of such their intention on or before the 19th of July; that the plaintiff omitted to give such notice; that, by the order of the 19th, notice yas given that such only of the freemen as had given notice should be employed in carrying oysters for the company, and that those who had not given notice should be excluded until after the 31st of October; and that, by reason of the last-mentioned order or regulation, the defendant, as foreman, refused to employ the plaintiff, as he lawfully might, &c.: Held, that the plea was not sustained by the production and proof of the order above set forth; and that the plea could not be made good by striking out the order of the 12th of July. Ib. 3. Quare, whether the foreman and jury had

power to make the order of the 19th of July, 1852, and whether, if they had, it was a reasonable one,--the notice of the 12th giving no intimation of the time at which the freemen were required to give notice of their in.

PERFORMANCE.

See PLEADING, IV.

PLEADING.

PARTNERS.

What constitutes a Partnership.

1

The defendant and others met for the purpose of forming a company for working a mine on the cost-book principle, the concern to consist of 60,000 shares, of which 15,000 were to be appropriated to the owner of the mine, 33,750 to A., B., and C., and the remainder allotted to other parties in proportion to certain capital subscribed by them,-1125 being allotted to the defendant, for which he paid 1007.: and it was at that meeting resolved, amongst other things, that the requisite capital to work the mine for the first six months should be found by A., B., and C. The same resolution also stated that the mine had been purchased of the owner for the sum of 10007. in cash, and 15,000l. to be paid in cash or shares at the end of six months, should it be deemed desirable by the adventurers to continue operations, such payment of 15,000l., or surrender of the mine to the owner, being optional by the said adventurers :-Held, that, by this arrangement, each adventurer became a partner in the concern from the commencement, and liable as such for goods supplied for the working of the mine. Peel v. Thomas, 714

PATENT.

See LETTERS-PATENT.

PATENT OF PRECEDENCE. See PROMOTIONS, I.

PAYMENT.

Of Money into Court."

The plaintiff brought an action for 127. 58. 7 d., for goods sold and delivered. The defendant paid 107. on account, and before declaration took out a summons calling on the plaintiff to show cause why the proceedings should not be stayed on payment of the further sum of 68. 44d. and costs. The plaintiff claiming more, no order was made. A declaration was afterwards delivered, and the defendant paid 78. into court, which the plaintiff accepted:-Held,-dissentiente Cresswell, J.,-that the plaintiff's acceptance of 78., after his refusal of 68. 44d., did not disentitle him to the costs incurred subsequently to the offer. Shaw v. Hughes, 660 II. Of a lesser in Satisfaction of a larger Sum, -See PLEADING, III. 2, 3.

-See CASE, I. 1.

II. Statement of Consideration. The plaintiff declared, in the first count, in debt for railway shares; in the third, in trover for certificates for shares; in the fourth, in detinue for the certificates for shares mentioned in the third count.

The fifth count stated, that, at the time of the writing the letter and making the contract therein and in that count mentioned, the claims of the plaintiff in the first, third, and fourth counts had severally arisen and accrued in manner and form as therein expressed, and the defendant ought to have paid or satisfied the plaintiff for and in respect of those several claims; that the defendant had from time to time requested the plaintiff to give him time, and to forbear and grant to him indulgence for the payment or satisfaction of the said claims, which the plaintiff had done; and that the defendant, being insolvent and unable to pay or satisfy those claims, and to obtain further time, wrote to the plaintiff as follows,-"That I have wronged you in not having (because incapable) repaid or returned that which you lent me (thereby meaning and referring, amongst other loans, to the said loan of the said certificates in the first count mentioned), it were useless for me to deny: but, how I have wronged you in feeling, seeing that I have ever, as do now, entertained for you the sincerest gratitude and regard, I know not, beset as I am in difficulties on every side, not resulting from extravagance, but from bad fortune. I know how worthless are promises of reparation, how wholly disregarded are entreaties for indulgence (thereby meaning that the defendant did then entreat and ask for indulgence from the plaintiff for the payment or satisfaction of the claims of the plaintiff). Yet will I say that the most anxious endeavour and hope of every future day shall be, to prove my regard and gratitude in the only way in which the world esteems the proof, by restoring to you all that I owe (thereby meaning, amongst other things, the payment or satisfaction of the said claims of the plaintiff)." The count concluded with an averment, that, in pursuance of that letter, and on the faith of the promise of the defendant therein contained, the plaintiff, at the request of the defendant, did continue to give him time, and to forbear and grant him indulgence and further time for the payment or satisfaction of the said claims; but that, although a reasonable time had elapsed for

the performance by the defendant of his said contract in the said letter contained, yet the defendant had not restored to the plaintiff all he owed, but had neglected and refused so to do, &c. :

Held, on demurrer to the fifth count, that the letter showed no request for forbearance, nor any consideration for a fresh promise by the defendant to pay what he already was liable to pay; and that, if it did amount to a fresh promise to pay, it was a promise without consideration. Deacon v. Gridley,

295

III. Accord and Satisfaction. 1. To a declaration upon a contract for the delivery of 600 loads of timber at Dantzic, the defendant pleaded, that, after the accruing of the causes of action, and before suit, it was agreed between the plaintiffs and the defendant, that the defendant should deliver to the plaintiffs in London certain other timber, and that such other timber should be accepted and received by the plaintiffs in full satisfaction and discharge of all causes of action upon the contract in the declaration mentioned; that the defendant, in part performance of such agreement, delivered to the plaintiffs, and they accepted and received of him, 143 loads, on the terms aforesaid, in full satisfaction and discharge of the causes of action in the declaration mentioned, so far as they related to 143 loads of timber in the contract mentioned; and that the defendant, within a reasonable time, tendered the plaintiffs the residue of the timber to complete the contract:

Held, on demurrer, that the plea was neither good as a plea of accord and satisfaction, for want of an averment of satisfaction; nor as a plea of performance, there being no averment, express or implied, that the substituted agreement was accepted in satisfaction. Gabriel v. Dresser,

622

822

2. Payment of a smaller sum, with an agreement to abandon a defence and pay costs, may be pleaded in satisfaction of a larger demand, whether liquidated or unliquidated. Cooper v. Parker (in error), 3. To debt for work and labour, money lent, &c., the defendant pleaded, that, after the accruing and during the subsistence of the causes of action, and before suit, the plaintiff levied a plaint in a certain county court to recover 501. claimed to be due to him from the defendant for money lent, &c.; that the defendant defended himself against the said plaint, and, being an infant at the time of the accruing of the causes of action for which the plaint was levied, gave notice of a defence on that ground; that, before trial, and before the commencement of this suit, it was agreed between the plaintiff and defendant that the defendant should pay the plaintiff 307., and the costs of the plaint, and that the plaintiff VOL. XV.-72

should accept the said sum of 301., and the performance by the defendant of the agreement in this plea mentioned, respectively, in full satisfaction and discharge of the causes of action, &c.; and that the 301. was paid to and received by the plaintiff, and the costs of the plaint paid by the defendant, &c. :Held, by the Exchequer Chamber, affirming the judgment of the court of Common Pleas, that, assuming the claim in the county court to have been for a liquidated demand, the plea was a good plea of satisfaction. Cooper v. Parker (in error),

822

IV. General Averment of Performance. The rules of a society established for the mutual assurance of traders against bad debts, after stipulating for the payment of premiums, provided, amongst other things, that, "if the premiums on any policy should not be paid within fifteen days after the same should fall due, the directors might, with the approbation of the council, either declare such policy void, or enforce the payment of such premiums." In an action on a policy, the plaintiffs averred that they had done all things necessary on their part, and had been ready and willing to do all things according to the said policy, rules, and regulations, which it was necessary that they should be ready and willing to do, and that all things had happened which it was necessary should happen, to entitle them to be paid by the society the loss thereinafter mentioned, and that a reasonable time for payment thereof had elapsed. It then went on to aver that a loss had been incurred, and that the defendants refused to pay :-Held, that this general averment was sufficient, without showing the various steps required by the rules of the society to entitle the assured to recover a loss. Bamberger v. The Commercial Credit Mutual Assurance Society, 676

V. Plea of Fraud. To a count upon an agreement whereby the defendant agreed upon certain terms to sell to the plaintiff "all his unexpired term and leasehold interest in a farm then in his occupation," with immediate possession,-the defendant pleaded, that he held the farm under a lease containing a covenant not to assign without the consent in writing of the lessors; that, being desirous to part with the farm, he applied to the agent of the lessors for their consent to his doing so, and had obtained an assurance, that, if he found an eligible tenant, who could give satisfactory references, the consent would not be withheld; that the agreement was made for the purpose of one Main becoming the occupier of the farm; and that the defendant was induced by the plaintiff to enter into the agreement, and did so, upon the faith and assurance, as the plaintiff knew, and the plaintiff, in order to induce the

defendant to enter into the agreement, represented and induced the defendant to believe, that Main was a person of respectability, and eligible as tenant of the farm, and could give references that would be satisfactory to the landlords; whereas, in truth, he was not a person of respectability, and could not and did not give such references:-Held, a good plea, inasmuch as it showed that the defendant was induced to enter into the contract by a false representation of the plaintiff as to a fact within his knowledge, and which was material to the subject-matter of the contract. Canham v. Barry,

597

VI. Plea in Avoidance of Circuity of Action. 1. To constitute a good plea in avoidance of circuity of action, it must show that the sum which the defendant is entitled to recover from the plaintiff is necessarily the same as that in respect of which the plaintiff is suing. Charles v. Altin, 46

2. By a charter-party it was agreed between the master and the charterers that one third of the stipulated freight should be paid before the sailing of the vessel,-the same to be returned, if the cargo was not delivered at the port of destination,-the charterers to insure the amount at the owners' expense, and deduct the cost of doing so from the first payment of freight. The charterers paid the one-third freight, deducting the premium of insurance. The vessel and cargo did not reach their port of destination. In an action by the charterers to recover back the freight so paid, the owner pleaded that the loss of the part of the freight to be returned, was such a loss as was by the charter-party to be insured against by the charterers at the owners' expense, and such insurance, if effected, would have indemnified the defendant against the loss of the freight stipulated to be returned; that, although the plaintiffs might, with the use of reasonable care and diligence, have effected an insurance whereby the defendant and the owner of the ship would have been fully indemnified against the loss of the onethird freight so to be returned, the plaintiffs effected the insurance so negligently and out of the usual course of business, that the same became of no use or value, and the defendant by reason of such improper conduct had sustained damages to the amount of the said third freight so insured, and the plaintiffs thereby became liable to the defendant for the same, and liable to make good to the defendant such amount as he should have to return to the plaintiffs under their charterparty, and any sum paid or returned by the defendant to the plaintiffs in respect of the freight would be the damages sustained by the defendant by reason of such improper conduct and deviation, and the defendant would be damnified to that extent :

1. 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 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 that 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 1007., 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 the 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. Johnson, 145

2. In trespass for mesne profits, the defendant pleaded, first, not possessed, secondly, that, before the several times when, &c., A. was seised in fee, and, on the 27th of December, 1846, demised the premises to B. for twenty-one years; that B. entered by virtue of that demise, and, on the 28th of January, 1847, demised to the defendant for one year from the 25th of March then next, and so from year to year, &c., and that the defendant entered by virtue of the last-mentioned demise.

Replication (by way of estoppel), as to so much of the pleas as related to the trespasses complained of in the count since the 26th of October, 1853,-that the plaintiff on that day sued out a writ of ejectment for

the recovery of the premises in question (setting out the writ); that Emily Kirby in the same writ mentioned was the defendant in this action, and was at the time of the issuing of the said writ the tenant in possession of the premises in question; that the premises in the said writ and in this action were the same, and that the plaintiff in the said writ named was the now plaintiff; that no appearance was entered or defence made to the said writ; that, after the issuing of the said writ, and whilst the ejectment was pending, and in pursuance of the act of parliament in that behalf, the plaintiff, by the consideration and judgment of the court, obtained possession of the said premises, &c.; that the said judgment was still in force; and that, afterwards, and before the commencement of this suit, and by virtue of the said judgment, the plaintiff entered into and upon the possession of the premises,-wherefore the plaintiff prayed judgment if the defendant ought to be admitted, against the said recovery, record, and proceedings, to plead the said pleas, or either of them, as to the trespasses in the count complained of since the said 26th of October, 1853:

Held, on demurrer, a good replication by way of estoppel to both pleas; that it was not necessary to aver notice to the defendant

VIII. Not Guilty "by statute." Upon a plea of not guilty "by statute," where the defence arises upon several statutes, one or more of which are omitted from the margin, their insertion is an amendment which may be allowed, upon terms, within the Common Law Procedure Act, 15 & 16 Vict. c. 76, s. 222, at any time. Edwards v. Hodges, 477 IX. Informal Demurrer.

In an action upon an award, the declaration alleged that certain differences between the plaintiff and defendant had been referred, and that the arbitrator had awarded that certain sums should be paid at certain times by the defendant to the plaintiff, and assigned for breach the non-payment of an instalment. The defendant pleaded, setting out the award verbatim, and concluding in the form of a demurrer, "that the said declaration is not sufficient in law ;" and the plaintiff joined in demurrer :

Held, that the demurrer was informal,the instrument as set out (since the Common Law Procedure Act, 1852) forming part of the plea, and consequently there being nothing to show the declaration bad. Sim v. Edmands, 240

POLICE MAGISTRATE.

430

3. Held, also, that if it were necessary, the replication contained a sufficient averment of entry by the plaintiff.

Ib.

4. Held, also, that the plaintiff's title by estoppel related back to the date of the writ of ejectment, and would be presumed to continue until shown by rejoinder to have been determined. Ib. 5. To an action for an injury to the plaintiffs' vessel by a collision in the river Thames, the defendants pleaded, that the merits in respect of the demand by this action sought to be enforced, had been already tried and determined, and certain proceedings, to which the plaintiffs and the defendants were parties, had been had in the Admiralty Court, and that the merits upon which the plaintiffs sought to recover in this action were thereby and then tried, and, after due proceedings had and taken in the said court, and in due form of law, determined by that court in favour of the defendants; and that it was then held and adjudged by the said court that the collision occurred through the negligence of the plaintiffs, and not through the negligence of the defendants:

Held, that the plea was no answer to the action, inasmuch as it did not show upon the face of it that the Admiralty Court had jurisdiction over the matter in question. Harris v. Willis,

710

LANDLORD AND TENANT, IV.

Ib.

2. At all events, an irregularity in that respect is waived by a subsequent attornment. 3. Service on a Lunatic.]—Where the defendant is a lunatic, the court has no power, under the 15 & 16 Vict. c. 76, s. 17, to allow the plaintiff to proceed as if personal service of the writ of summons had been effected, unless it can be made to appear that the writ has come to the defendant's knowledge, or that he wilfully evades service. Holmes v. Service,

4.

293

Renewal of Writs.]-By the 11th section of the Common Law Procedure Act, 15 & 16 Vict. c. 76, the original writ of summons is described to be in force only "for six months