AN INDEX TO THE PRINCIPAL MATTERS. ACCIDENTAL FIRE. See PAWNBROKER. See MANDAMUS, 2. PRACTICE, 4. ACTION ON THE CASE. 1. A reversioner cannot maintain an action on the case against a stranger, for merely entering upon his land held by a tenant on lease, though the entry be made in exerciso of an alleged right of way, such an act during the tenaney not being necessarily injurious to the reversion. Baxter v. Taylor, M., 3 W. 4. 72 2. Plaintiff declared in case, that the defendants wrongfully and maliciously took his goods, of the value of 7007., as a distress for 1411. alleged and pretended to be due for a poor rate, whereby they levied an unreasonble and excessive distress for the said 1417.; and it was proved that the defendants, overseers, having a regular distress warrant for the rate, distrained cattle, &c., of the plaintiff, to the value of more than 6007.: Held, that the plaintiff was not bound to demand a copy of the warrant, pursuant to the 24 G. 2, c. 44, s. 6, before commencing his action, as the overseers had not acted in obedience to the warrant, and no action would have lain against the justices. Held, further, that it was not a question to be left to the jury, on these facts, whether or not the defendants acted maliciously. And, on motion in arrest of judgment, held that the declaration, though it did not expressly admit any poor rate to have been due, (on which ground it was objected that the action ought to have been trespass,) was sufficient, at least, after verdict. Sturch v. Clarke and two others, M., 3 W. 4. 113 3. Declaration stated, that plaintiff, being the inventor and manufacturer of metallic hones, used certain envelopes for the same, denot ing them to be his; and that defendants wrongfully made other hones, wrapped them in envelopes resembling the plaintiff's, and sold them as his own, whereby the plaintiff was prevented from selling many of his hones, and they were depreciated in value and reputation, those of the defendants being inferior: Held, that the plaintiff was entitled to some damages for the invasion of his right by the fraud of the defendants, though he did not prove that their hones were inferior, or that he had sustained any specific damage. Blofield v. Payne, H., 3 W. 4 410 4. After distress made by a broker, in a case within 57 G. 3, e. 93, the rent and charges may still be tendered to the landlord. Declaration contained six counts in case; the seventh charged, that the defendants took and distrained the goods of the plaintiff for rent, of more than sufficient value to satisfy the rent and costs, and then voluntarily abandoned the same; and afterwards wrongfully, injuriously, and rexatiously again took and distrained the same goods for the same rent, and refused to return the same, and converted them to their own use: Held on motion in arrest of judgment for misjoinder of case and trespass, that although this second taking of the goods was a trespass, yet the plaintiff might bring case for the conversion, and that the count was an informal one in case, and sufficient after verdict. Smith v. Goodwin, H., 3 W. 4. 413 5. The words, "He robbed J. W.," are actionable, as imputing an offence punishable by law. If they are used in any other sense, the defendant must show it. Per Denman, C. J., and Parke, J., Littledale, J. dubitante. Tomlinson, Gent., One, &c. v. Brittlebank, E., 3 W. 4. 630 ADMISSION. See EVIDENCE, 5. ADVERTISEMENT. See ASSUMPSIT, 5. AFFIDAVITS. See ARREST, 2. JUDGMENT. JURYMAN. MAN DAMUS, 5. AGREEMENT. See STAMP. AMENDMENT. See APPEAL, 3. PLEADING, 5. POOR RATE, 3. PRACTICE, 4. ANNUITY. See WARRANT ON ATTORNEY, 2. 1. By statute 1 & 2 G. 4, c. cxvii., incorporata gas light company, it was enacted that the directors should have the custody of the common seal, and power to use it for the affairs and concerns of the company, who were themselves, by another clause, empowered to make orders under seal at their meetings for the government of the company, and for regulating the proceedings of the directors. No power was expressly given by the act to grant annuities. At a special meeting of the company, a committee previously appointed for certain purposes, reported that it was expedient that the then clerk, whose health was bad, should be invited to retire upon a pension, on condition of abstaining from acts prejudicial to the company; that such proposal had been made to him, and that he had accepted it. The meeting voted, that the report should be received and entered on the minutes, and that the directors should carry into effect the committee's recommendation. No order to this effect was made under seal. The directors, by deed, in the name of the company, granted an annuity to the clerk on his retirement, subject to the conditions of the nature above stated, aud they put the corporate seal to it: Held, the seal was properly affixed by the directors; that the granting of such annuity was warranted by the statute; that it was a concern of the company, within the first-mentioned clause; and that no order of the company under seal was necessary to authorize it. Clarke v. The Imperial Gas Light and Coke Company, 3 W. 4. 315 2. A rector, after the statute 13 Eliz. c. 20, had been repealed, and before its revival by 57 G. 3, c. 99, demised his rectory to a trustee for ninety-nine years to secure an annuity. After the passing of 57 G. 3, c. 99, by deed reciting the grant of the former annuity, and that A. had agreed to purchase of the grantor an annuity of 5747. a year for 44002., and out of that sum to pay off the former annuity, and that that annuity, and the term created to secure the same, should be assigned to a trustee for A.'s benefit, the rector granted the said annuity of 5741. chargeable on his rectory, and the trustee of the term created to secure the annuity of 1813, assigned it to the trustee for the benefit of A.: Held, that inasmuch as the term was created after the passing of the 43 G. 3, c. 84, which repealed the 13 Eliz. c. 20, the assignment of it, though for the purpose of securing the payment of an annuity charged on the benefice after the passing of the 57 1. Notice was given of appeal against a poor rate, and the respondents attended at the sessions and prayed a respite, alleging that they had not had time to prepare their defence to the matters stated as grounds of appeal. The appellant opposed the respite: but it was granted, no notice of appeal having been proved or expressly admitted. An order of respite was made out embodying the grounds of appeal stated in the notice: Held, that, at the following sessions, the appellant was entitled to be heard without proving any notice of appeal. The King v. The Justices of Hertfordshire, H., 3 W. 4. 561 2. An order of removal "to the parish of L." was directed to the churchwardens and overseers of the parish of L." There were no such officers, but the parish was divided into three hamlets, A., B. and C., each maintaining its own poor, and having separate officers. The pauper, with the order, was delivered by the officers of the removing parish to the officers of the hamlet of A.: Held, that a notice of appeal given in the name of the officers of the hamlet of A., and reciting the order to be for removal to the hamlet of A., in the parish of L., could not, under these circumstances, be objected to by the respondents, and that the appeal ought to have been heard. The King v. The Justices of Carmarthenshire, H., 3 W. 4. 563 3. Paupers were removed to the township of Bingley: the township does not maintain its own poor, but is in the parish of Bingley, which does: Held, that the order was informal, but the sessions might amend it. The King v. The Inhabitants of Bingley, H., 3 W. 4. 567 4. In a notice of appeal against an order for stopping up a footway (under 55 G. 3, c. 68, 8. 3), it sufficiently appears that the appel lant is a party aggrieved, if it be stated that he and his tenants, occupiers of a farm and lands near the said way, and who have heretofore used, and have a right to use it, and also other persons, and the public will be put to great inconvenience. The statute requires "ten days'" notice of an appeal to the sessions against such order. By a rule of the West Riding sessions, in cases of appeal, "not otherwise directed by law," "ten days' " notice is to be given, exclusive of the day of notice and first day of the sessions: Held, that the statute meant ten days' notice, one inclusive and the other exclusive; that the sessions' rule did not apply to this case, or, if it were intended to do so, this Court would use its discretionary power of controlling the practice. The appellant gave notice of appeal against three orders, all of the same date; he attended the clerk of the peace to enter them, and the entry was in the following form: A., appellant, against an order of B. and C., esquires, dated, &c. for stopping up footways in, &c. He paid the fee as upon one appeal. At the sessions, the appellant's counsel being called upon to elect which appeal he would proceed with, proved his notices upon one, which was dismissed on a supposed defect of notice, and the order confirmed, as were the two others, nothing being said of the appeals against these, to which the same objections would have applied. On motion for a mandamus to enter continuances and hear the appeals, it appearing that the preliminary objection taken was unfounded, and that the appellant had in reality intended to enter his appeal against all the orders, this Court made the rule absolute as to all three. The King v. The Justices of the West Riding of Yorkshire, E., 3 W. 4. APPOINTMENT. See EVIDENCE, 6. TREASurer. See MANDAMUS, 2. PARTNERSHIP, I. 685 1. A defendant arrested on an irregular writ de contumace capiendo, was brought up by habeas corpus before a judge to be discharged. Immediately after his discharge, and before he had time to return home, he was again arrested on a similar writ for the same matter: Held, that he was protected from arrest redeundo. The second writ was sued out of Chancery without any return made to the first nevertheless it was held to be ragular. The King v. Blake, M., 3 W. 4. 355 2. The Court will interfere to discharge a party from arrest, or set aside the bail-bond, where it appears plainly on the face of the matter, that the arrest was groundless, but not where it would become necessary to try the merits of the case on detailed and contradictory statements in several affidavits. It is not sufficient ground for such interference, that the defendant, denying that he is indebted and advancing a number of facts in support of such denial, alleges his belief that the action is brought for the purpose of obtaining from him by intimidation a release of certain covenants; and states that the plaintiff, or his attorney in his presence, on being refused such lease a week before the arrest, declared that some strong measure must be adopted against the defendant. Burton v. Haworth, H., 3 W. 4. ARREST OF JUDGMENT. 460 ASSIGNEES OF INSOLVENT DEBTOR. See FRADULENT CONVEYANCE. ASSIGNMENT. See BANKRUPT, 5. ASSIGNMENT OF TERM. See ANNUITY, 2. ASSIZES. See JUDGMENT. ASSUMPSIT. See PAYMENT OF MONEY INTO COURT. 1. In assumpsit on a special contract, and for money had and received, &c., defendant pleaded the general issue, and to the common counts a tender; and he paid money into Court upon a rule in the common form, not applying in terms to any particular count: Held, that such payment could not be referred exclusively to the counts as to which a tender was pleaded, but that it applied to the whole declaration, and admitted the special contract. Bulwer v. Horne, M., 3 W. 4. 132 2. A. and others were part owners of a ship in the service of the East India Company. B. was managing owner, and employed C. as his agent for general purposes, and amongst others, to receive and pay moneys on account of the ship; and C. kept an account in his books with B., as such managing owner. In order to obtain payment of a sum of money due from the East India Company on account of the ship, it was necessary that the receipt should be signed by one or more of the owners, besides the managing owner, and upon a receipt signed by B. and one of the other owners, C. received on account of the ship 20007. from the East India Company, and placed it to B.'s credit in his books. The part owners having brought money had and received, to recover the balance of that account: Held, that C. had received the money as the agent of B., and was accountable to him for it; that there was no privity between the other part owners and C., and consequently that the action was not maintainable. Sims and Others v. Brittain and Others, M., 3 W. 4. 375 3. Declaration stated that W. P. owed the plaintiff 137., and that in consideration thereof, and that W. P., at the defendant's request, had promised defendant to work for him at certain wages, and also in consideration of W. P. leaving the amount which might be earned by him in the defendant's hands, he the defendant undertook and promised to pay the plaintiff the sum of 131. Averment, that W. P. performed his part of the agreement. Judgment arrested, because the plaintiff was a stranger to the consideration. Price v. Easton, H., 3 W. 4. 433 4. The solicitor to the assignees of a bankrupt received from them a sum of money, to be applied in payment of the costs of the petitioning creditor, up to the time of the choice of assignees. The solicitor offered to pay the money on condition that the bill should undergo a subsequent taxation, but to that the petitioning creditor would not assent: Held, that the latter could not maintain money had and received thereupon against the solicitor, though, after the above offer, he had authorized the solicitor to pay over part of the money in discharge of commissioners' fees. Baron v. Husband, E., 3 W. 4. 611 5. A., by public advertisement, stated, that whoever would give information which should lead to the discovery of the murder of B. should, on conviction, receive a reward of 201.: Held, that C., who gave such information, was entitled to recover the 201., though she was led to inform, not by the proffered reward, but by other motives. Williams v. Carwardine, E., 3 W. 4. 621 6. An auctioneer, employed by a supposed executrix, sold goods of the testator; but before payment, the real executrix claimed the money from the buyer: Held, that the auctioneer could not afterwards maintain an action against the buyer, though the latter had expressly promised to pay on being allowed to take away the goods, which he did. Dickenson v. Naul, E., 3 W. 4. 638 7. Where a party has employed two attorneys, partners, to manage a cause for him in the Palace Court, an action in the common form lies against him at the suit of both for the bill of costs, though one only was an attorney of the Court, and actually did the business there. Although the client gave a written retainer to the latter attorney only, and he only was mentioned in the rule for taxing costs, these facts were held not conclusive, there being evidence, aliunde, of a contract with both. J. and R. Arden, Gents., &c. v. Tucker, Gent., One, &c., E., 3 W. 4. 815 ATTACHMENT. ATTORNEY. See EVIDENCE, 5. LIBEL. PRACTICE, 3. WARRANT OF ATTORNEY, 1. 1. The rule of Trinity term, 21 G. 3, which empowers the marshal of the King's Bench to regulate the admission of persons to visit the prisoners, does not authorize him at his pleasure to prevent an attorney from visiting his client in the prison, but he must have some ground to show for so doing, provided the attendance of such attorney is on the client's business, and necessary to or required by him. Ex parte Matanle, M., 3 W. 4. 365 2. In an action against attorneys for negligence, it appeared that the plaintiff employed the defendants to conduct an action for him against a surveyor of turnpike roads, for alleged trespasses. The surveyor had seized and impounded plaintiff's sheep, as having been found straying on the road: the plaintiff regained possession of them, by promising the pound keeper to pay the proper charges, and drove them home; on the same day the surveyor retook the sheep in the plaintiff's field, and again impounded them. The first and second taking were in Surrey, but on an intermediate day the sheep had escaped, and been impounded in Sussex. The turnpike act 4 G. 4, c. 95, s. 75, only authorises surveyors to impound sheep found on a turnpike road. The general turnpike act 3 G. 4, c. 126, s. 147, (incorporated in the above statute by reference) requires that actions against any person for any thing done in pursuance of the act, shall be commenced within three months, and the venue laid in the county where the cause of action arose. The attorneys commenced the action within three months, and had a declaration drawn by counsel, who returned it with an observation indorsed, that it would have been prudent to have joined two other parties. The attorneys thereupon (with the plaintiff's assent) discontinued the action, and brought another after the expiration of the three months, laying the venue in Sussex. The declaration was settled by counsel, and the case afterwards submitted to a special pleader, who gave as his opinion, that the protecting clause of 3 G. 4, c. 126, did not apply to the trespass in seizing the sheep in the plaintiff's field. The plaintiff went to the trial, and was nonsuited, on account of the action being out of time and the venue improper, with leave to move, which was done without success: Held, that this was not a case of actionable negligence in the attorneys. Quare, whether the surveyor, in making the second seizure, was within the protection of 3 G. 4, c. 126, as acting in pursuance of that statute, or 4 G. 4, c. 95: Held, that at all events, there was so much doubt on this point, that the attorneys, if mistaken upon it, were not therefore culpably negligent. Kemp v. Burt and others, H., 3 W. 4. 425 3. An attorney's bill for business done in the county court is within the statute 2 G. 2, c. 23, s. 23, and must be delivered to the client one month before action brought. A charge for attesting a replevin bond is a charge relating to a suit in that court. An attorney not having delivered any bill to his client before action brought, but particulars of demand, containing some taxable items, after action brought, cannot recover for an item not taxable, if such item be in respect of business done or money paid to his client's use, in his character of attorney. Wardle v. Nicholson, H., 3 W. 4. 469 4. An attorney employed by a party about to take the benefit of the Insolvent Act, to prepare a list of debts, which were afterwards to be inserted in the schedule, omitted a debt due from the insolvent to himself, and sued for that debt after the party's discharge: Held, by Denman, C. J., and Parke, J., that this was not such a fraud upon the general policy of the Insolvent Act as would bar the action. Quære, whether, if he omitted to insert the debt in breach of his duty to his client, that would be a defence to an action brought by him against the latter to recover the debt, or whether it would only be the subject of a cross action? If a defence, quare whether or not it should be specially pleaded? Howard, Gent., One, &c. v. Bartolozzi, H., 3 W. 4. 555 5. Plaintiff's attorneys gave defendant's attor neys their own undertaking as security for costs; the defendant obtained a verdict and died, and judgment was entered up in his name within two terms: Held, that the attorney for such deceased party, having a claim against his estate in respect of the costs, might enforce the security to satisfy such claims, without any scire facias having been sued out by the personal representatives. Chauvel v. Chunelli, E., 3 W. 4. 590 6. Where an attorney has received money to the use of his client, and not accounted for it, and has afterwards become bankrupt and obtained his certificate, the Court will not, on motion, order him to repay the money so received, the amount being a debt barred by the certificate. But if the attorney committed fraud in the receiving and not accounting, the Court, in the exercise of its general jurisdiction over its officer, will enforce such payment, as a modification of the punishment which it might otherwise inflict for his misconduct. The case of fraud, however, ought to be clear, and the attorney should have notice by the form of the rule, that the application is of a penal nature. It is not enough to call upon him to show cause why he should not pay over the money. In re Bonner, Gent., One, &c., E., 3 W. 4. 811 7. Where a party has employed two attorneys, partners, to manage a cause for him in the Palace Court, an action in the common form lies against him at the suit of both, for the bill of costs, though one only was an attorney of the Court, and actually did the business there. Although the client gave a written retainer to the latter attorney only, and he only was mentioned in the rule for taxing costs, these facts were held not conclusive, there being evidence, aliunde, of a contract with both. J. and R. Arden, Gents., &c. v. Tucker, Gent., One, &c., E., 3 W. 4. 815 8. An agreement by an insolvent about to take the benefit of the act, with his creditor (his attorney), that the claim of the latter should be omitted in the schedule, and that a cognovit which he held shall be suspended, and revived after the debtor's dischaage, was held by the Court of Exchequer to be fraudulent, and the cognovit and judgment signed, and issued thereupon after the discharge, were set aside with costs. Tabram, Gent., One, &c. v. Freeman, E., 3 W. 4. AUCTION. See FRAUDS, STATUTE OF. STAMP. AUCTIONEER. See ASSUMPSIT, 6. BAIL BOND. See ARREST, 2. PRACTICE, 2. BANKER. See CHECK. BANKRUPT. 887 See ASSUMPSIT, 3. INDICTMENt, 1. 1. It is a good answer to a plea of bankruptcy that the certificate was obtained by fraud, though the enactment to that effect in 5 G. 2. c. 30, s. 7, is not repeated in 6 G. 4, c. 16. Horny. Ion, M., 3 W. 4. 78 2. The statute 1 W. 4, c. 7, s. 7, exempting judgments on cognovit, and by default, confession, or nil dicit, in any action commenced adversely and without collusion, from the operation of s. 108, of the bankrupt act, does not extend to judgments on warrants of attorney, though given without collusion or in tention of fraudulent preference. And a sheriff having seized and sold goods on an execution issued upon such judgment, and paying over the proceeds after notice of an act of bankruptcy committed by the defendant, is answerable to the assignees for money had and received. Crosfield and another v. Stanley, M., 3 W. 4. 87 3. A fieri facias was sued out on a judgment entered up under a warrant of attorney, and the sheriff seized the goods before ten in the forenoon of the 13th of August, and sold the same ten days afterwards. On the 13th of October following, about noon, a commission issued against the defendant, under which he was declared a bankrupt: Held, first, that the seizure of the goods by the sheriff was a sufficient executing or levying, within the meaning of those words in the statute 6 G. 4, c. 16, s. 81; secondly, that more than two calendar months had elapsed between the execution and the issuing of the commission; thirdly, that although the execution issued on a judgment entered up in pursuance of a warrant of attorney, yet, having been executed more than two months before the issuing of the commission, it was protected by s. 81, and not taken out of that section by the proviso in s. 108. Semble, that that proviso only applies to executions executed within two calendar months before the issuing of a commission. Godson v. Sanctuary, M., 3 W. 4. 255 4. The stat. 6 G. 4, c. 16, s. 127, which vests in assignees the future effects of a bankrupt who had before been bankrupt, or taken the benefit of an insolvent act, and has not paid 158. in the pound under the subsequent commission does not apply to a bankrupt who had obtained his certificate under such subsequent commission, before the statute passed; and, therefore, where A., after being discharged under an insolvent act, had a commission of bankrupt issued against him, and obtained his certificate before the passing of the 6 G. 4, c. 16, but did not pay 15s. in the pound, and he was afterwards sued on a bond executed before his discharge under the insolvent act, but not inserted in his schedule, it was held that his certificate did not bar the action. Carew v. Edwards, M., 3 W. 4. 351 5. A., who resided at Liverpool, was in the habit of making consignments of goods to B., his agent in South America, for sale, on the faith of and against which consignments, A. drew bills proportioned to their amount, to be paid by the agent out of the proceeds; and the bills were negotiated by the indorsements of C., A.'s correspondents in London. Some of the bills so indorsed were refused acceptance by the agent. C., on receiving information that they had been so dishonored, requested that A. would order his agent, in case he did not pay his, A.'s, drafts, immediately, to hand over to C.'s agent such property as he had of A.'s of an equivalent value to the bills that should not be paid by him. A. agreed to do so, but became bankrupt before his order to transfer the goods reached South America: Held, that the bargain between A. and C. did not operate as a legal or equitable assignment of the property in A.'s goods, held by B. his agent, but that they remained the property of A. at the time of |