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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, J., and Parke, J., that this was not such a fraud upon the general policy of the insolvent act, as would bar the action.

Quare, 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, quære whether or not it should be specially pleaded? Howard, Gent., One, &c. v. Bartolozzi, H. 3 W.

4.

555

2. An agreement by an insolvent about to take the benefit of the act, with his creditor, 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 discharge, was held by the Court of Exchequer to be fraudulent, and the cognovit and judgment signed, and execution issued thereupon after the discharge, were set aside with costs. Tabram, Gent., One, dc. v. Freeman, E. 3 W. 4. 887

INSURANCE.

See EVIDENCE, 1.

Goods and freight were insured at and from Liverpool to Monte Video and Buenos Ayres, if open, or the ship's final port of discharge in the River Plate, with liberty to wait two months at Monte Video, if needful, at a premium of five guineas per cent., to return 27. per cent. for risk ending at Monte Video on arrival. The vessel arrived on the 2d of August at Monte Video, which was then blockaded by an enemy's fleet to prevent Vessels passing to Buenos Ayres. The blockade did not cease till the 4th of October. The vessel afterwards sailed for Buenos Ayres, and was lost: Held, that the risk was at an end as soon as the vessel had staid two months at Monte Video, and that the underwriters were therefore discharged. Doyle v. Powell, 3 W. 4.

INTERPLEADER ACT,

1 & 2 W. 4, c. 58.

See PRACTICE, 5.

INVENTORY.
See EXECUTOR, 2.

IRREGULARITY.

See EJECTMENT, 1. EVIDENCE, 4.

JOINT TRESPASSER.

See TRESPASS, 2.

JUDGMENT.

267

See BANKRUPT, 2. WARRANT OF ATTORNEY,

1, 2.

By the act 11 G. 4, c. 70, s. 9, upon trials for felony or misdemeanor on a King's Bench record, judgment may be pronounced at the assizes, and shall have the effect of a judgment of the Court above, unless that Court, in the first six days of the term, grant a rule misi for a new trial, or for amending the judy

ament.

VOL XXIV.-26

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The delivery of food to a juryman after the jury were shut up to consider of their verdict, is no ground for setting the verdict aside, if it do not appear that such refreshment was supplied by a party to the cause, or that it was delivered to a juryman, whose holding out decided the event.

Affidavits of jurymen are admissible as to matters which pass openly in Court, but where there is a judge's report on the same points, that is conclusive. Everett v. Youells, E., 3 W. 4. 681

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1. By the insolvent act 7 G. 4, c. 57, s. 3, no distress for rent made and levied after the arrest of any person who shall petition the court for the relief of insolvent debtors for his discharge, upon the goods or effects of such person, shall be available for more than one year's rent. A distress taken before, but not sold till after the arrest of such insolvent debtor, is available for more than a year's rent. Wray v. The Earl of Egremont, M.,

3 W. 4. 122 3. A private dwelling-house was demised for forty years by lease, containing a covenant to repair and keep in repair the premises, and all such buildings, improvements, and additions as should be made thereupon by the lessee during the term, with a proviso for re-entry in case of breach of covenant. The lessee changed the lower windows into shop windows, and stopped up a doorway, making a new one in a different place in the internal partition of the house: Held, that no forfeiture was incurred, the lessee's covenant being only against non-repair, and it being implied by the terms of the lease that additions and improvements were to be made. Doe d. Dalton v. Jones, M., 3 W. 4.

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LEGAL ESTATE.

See EJECTMENT, 2.

LIBEL.

See EVIDENCE, 11.

1. The following words-"D. has had a tolerable run of luck. He keeps a well spread sideboard, but I always consider myself in a family hotel when my legs are under his table, for the bill is sure to come in sooner or later, though I rarely dabble in the mysteries of ecarte or any other game. The fellow is as deep as Crockford, and as knowing as the Marquis. I do dislike this leg-al profession"-will support a declaration for libel, without explanatory averments, for they tend generally to disgrace the plaintiff.

Quære, Whether a defendant, by demurring to a declaration for a libel to have been published with the intent ascribed to it in the declaration. Digby v. Thomson, E., 3 W. 4.

821

2. In an action for a libel charging an attorney with " disgraceful conduct" in having at an election disclosed confidential communications which he had acquired professionally, the defendant pleaded in justification that the plaintiff had disclosed many details and particulars professionally and confidentially communicated to him relating to three transactions (which were specified), two of them being instances in which he had been employed by mortgagors to manage mortgages, and a third where in the course of his employment as attorney, he had become acquainted with the nature of his client's title and his right to grant leases. At the trial it appeared as to the mortgages, that the plaintiff had acted as attorney both for mortgagors and mortgagees: Held, that it was a question for the jury whether the matters disclosed by the plaintiff were such the knowledge of which was acquired professionally, and not whether they were such as he would not be compellable to disclose if called upon as a witness in a court of justice.

Semble that the knowledge acquired by the plaintiff as to the right of his client to grant freehold leases, was of that privileged nature that he would not have been bound to disclose it if called on as a witness. Moore, Gent., One, &c. v. Terrell and Others, E., 3 W. 4.

LICENSE.

See PLEADING, 7.
LIEN.

See VENDOR And Vendee, 1.

870

1. A. purchased premises which were mortgaged to B., with a proviso for reconveyance at the costs and charges of the mortgagor, on payment of principal and interest. B. sold the premises, and was to pay off the mortgage on the completion of the purchase; but A.'s attorney, who held the title deeds, would not deliver them to B. till his own bill was also paid. The bill contained some items fairly chargeable on the occasion, as costs due from the mortgagor and others, which were properly payable by the mortgagee: Held, that the attorney might enforce his lien on the deeds against B. to the whole

extent of the bill; and that B. having been obliged to pay it for the purpose of releasing the deeds, could not recover back from the attorney the amount unduly charged. Ogle v. Storey, Gent., One, &c., E., 3 W. 4. 735

LOCOMOTIVE STEAM ENGINES.
See NUISANCE.

LONDON DOCK COMPANY.
See PRACTICE, 5.

MALICE.

See ACTION ON THE CASE, 2. EVIDENCE, 12. MANDAMUS.

See APPEAL, 4.

1. By stat. 11 G. 4, c. lxx., the Hungerford Market Company were empowered to purchase certain premises for the purposes of the act; and by sect. 6, it was enacted as follows: That if any person interested in such premises shall, for twenty-one days next after notice given him of their being required for the purposes of the act, refuse to treat, or not agree, for the sale thereof, in every such case the Company shall cause the value of, and recompense to be made for, such premises to be inquired of by a jury; and for summoning and returning such jury, they are empowered to issue their warrant to the High Bailiff of Westminster, who is required to impannel, summon and return such jury, and is empowered to swear twelve, and to examine witnesses before them, &c.: and they shall assess the damages and recompense, &c.:

Held, that the Company, having given such notice to an occupier, could not withdraw from it, though they offered to pay all reasonable costs incurred by him in consequence; but that the act obliged them, on his demand, to issue their warrant to the High Bailiff for summoning a jury. And the Court granted a mandamus to compel them so to do. The King v. The Hungerford Market Company, 3 W. 4.

327

2. It is discretionary in the Court either to determine the validity of a return to a mandamus on motion, or to order the case to be set down in the crown paper for argument.

The St. Katharine Dock Company were incorporated by act of parliament, which directed that all actions against the Company should be prosecuted against the treasurer or director for the time being; but that the body or goods, lands, &c., of such treasurer or director should not, by reason of his being defendant in such action, be liable to execu tion. An action having been brought by T. C. against the treasurer, as such, and another by the Company, in the name of the treasurer, against T. C., all matters in difference were referred to an arbitrator, who awarded that T. C. had cause of action against the defendant, as such treasurer, for a certain sum, and directed that the treasurer should pay T. C. that sum on demand: and, as to the other suit, he awarded that the treasuer, as such, had no cause of action, and ordered him, as such treasuer, to pay T. C. the costs on demand: Held, that a mandamus would lie to the treasurer and directors, commanding them to pay the sums

awarded. The King v. The St. Katharine Dock Company, M., 3 W. 4. 360 3. On motion for a mandumus to the master and wardens of an incorporated company of the city of London, to call a meeting of the company on the next annual day of election, for the purpose of electing a master and wardens according to the charters, it being suggested, as the ground of motion, that the said officers were at present improperly elected by a part only of the company, instead of the whole body; the Court refused the writ.

On motion afterwards for a quo warranto against the master elected in the manner complained of, it appeared that the practice, as far as it could be traced, from the year 1488, had been for the master, wardens, and a body called the court of assistants (which had varied in number from twenty-four to forty), to elect the master; and that he had asually been elected out of the court of assistants, and not out of the general body. The assistants, besides belonging to that court, had the same qualifications for being elected as the other members of the company. In some instances, but it was not stated how many or at what period, persons had been elected who were not of the court. The company had existed from time immemorial; by a charter of Rich. 2, they were empowered to elect a master de seipsis when and as they should please; and by a charter of 18 Hen. 7, (1502) all their liberties, franchises and customs, were confirmed:

Held, that if one entire by-law were to be presumed, for the master, wardens, &c., to elect, and to elect out of a restricted body, the latter part of such by-law would be bad, and vitiate the whole, but that no ground was laid for presuming such by-law, inasmuch as the elections from the particular body might have been made in every instance by choice, and not under any rule; and further, it appeared that there were exceptions, although these were not specifically stated; and that even the practice of electing by a limited body was not necessarily to be presumed part of a by-law, as it might have been a custom, incorporated by reference in the charter of Hen. 7.

Quære, Whether a quo warranto information lies at the instance of a private relator, against a person claiming to hold an office in one of the incorporated companies of the city of London? The King v. Attwood, 3 W. 4.

481 4. The Court of Directors of the East India Company sent to the Board of Control, for their approval, a draft of a dispatch headed "Political Department," which that board altered and returned to them, to be transmitted to India, pursuant to the 33 G. 2, c. 52, s. 12. The directors objected to the alterations, but not the jurisdiction of the commissioners to make them; and the alterations being insisted on by the board, the directors afterwards rescinded the resolution on which the despatch was founded, and lef. it to the commissioners to originate the dispatch pursuant to the sect. 15 of the statate. On motion for a mandamus to the directors to transmit the altered dispatch:

Held, first, that the conduct of the directors was equivalent to a refusal to transmit

the dispatch; secondly, that the directors could not in this case annul the resolution on which the dispatch had been founded; thirdly, that the despatch having been originated by the directors, and altered by the board of control, and ordered by them to be transmitted, and proceedings being so far regular, it was no answer to an application for a mandamus, that the board might by another proceeding, as by originating a dispatch, attain the same end: fourthly, that the directors having admited the jurisdiction of the board with respect to the dispatch, and only contested the alterations, were estopped from afterwards contending that the dispatch was not one over which the board had authority. H., 3 W. 4. 5. To ground a proceeding at petty sessions under 7 & 8 G. 4, c. 31, s. 8, for compensation in respect of felonious injury by rioters, the party or his servant must go before a justice within seven days after the offence committed, and submit to examination, &c., according to section 3 of the act, as well as where an action is to be brought. And the Court will not grant a mandamus to summon such petty session, where it does not appear by affidavit that these steps have been taken, though the party swear that he has duly served the notice required by section 8. King v. Bateman and Another, H. 3 W. 4.

530

The

552

6. The act 11 G. 4, c. lxx. (passed May 1830), incorporating the Hungerford Market Company, empowers them to purchase certain estates; and section 17, enacts, that every lessee or tenant for years or at will of any messuages, &c. to be purchased under the act, shall deliver up possession to the company at three months' notice, they making compensation to every such tenant, &c. who shall be required to quit before the expiration of his term such compensation, in case of dispute, to be assessed by a jury. Section 19, provides, that all tenants for years, from year to year, or at will, occupiers of any messuages, &c. comprised in the act, who shall sustain "any loss, damage, or injury in respect of any interest whatsoever for goodwill, improvements, tenant's fixtures, or otherwise, which they now enjoy, by reason of the passing of this act," shall receive compensation from the company, by such means as are provided in respect of the tenants of certain hereditaments mentioned in a schedule to the act; namely, by assessments, as before stated.

A lessee, whose term expired on the day the company came into possession (June 24th, 1830), obtained leave to hold on till the premises were wanted, and did so for a year and three quarters, at the end of which time he quitted, having received half a year's notice. His under-tenant, who came in at Christmas 1828, and had held from year to year, and who knew of the above proceedings, and also received notice to quit, was held entitled to compensation for good-will (to be assessed by a jury) under sect. 19. The King v. The Hungerford Market Company, E. 3 W. 4.

592 7. Under sections 17, and 19, of the Hungerford Market Act (see the preceding case) compensation was claimed by a party, who in 1823 became the assignee of a lease for

fourteen years, granted in 1818, of premises on the estate purchased by the company. The lease contained covenants to yield up the premises, with all fixtures and improvements, at the end of the term, and not to underlet or assign without leave; but this latter clause had not been introduced in contemplation of any advantage to be taken of it by the landlord with reference to the present act. The company suffered the lease to expire, and then turned out the tenant: Held, that he was entitled to have compensation assessed for the loss, if any, sustained by him in respect of good-will, or the chance of a beneficial renewal of his lease; but not for fixtures set up or purchased, or for improvements made by him, inasmuch as he had no legal interest in them.

Held, nevertheless, that these might be considered by the jury in estimating the chance of a beneficial renewal. The King v. The Hungerford Market Company (Ex parte Gosling), E. 3 W. 4.

MANGANESE. See POOR-RATE, 2.

MARKET.

596

Quære, if the grantee of a newly created market can, by virtue of such grant merely, maintain an action for disturbance of franchise against a person selling marketable articles in his own shop, within the franchise, but not within the limits of the market place on the market day.

But a claim by immemorial custom to exclude

others from selling such commodities on the market day, except in the market place, is valid in law.

And where a market for meat, &c. was proved to have been in existence in the reign of James the First, proof that the grantees of the market had for the last hundred years appointed market-lookers, that no butchers' shops had existed out of the market place until 1810, and that the shops then set up were objected to by the grantees, was held to be sufficient evidence of such immemorial right. The Mayor of Macclesfield v. Pedley, H. 3 W. 4.

MARRIAGE.

397

To render a marriage invalid, the 4 G. 4, c. 76, s. 22, which enacts, "that if any persons shall knowingly and wilfully intermarry without due publication of banns, the marriages of such persons shall be null and void," it must be contracted by both parties with a knowledge that no due publication has taken place. And therefore where the intended husband procured the banns to be published in a Christian and surname which the woman had never borne, but she did not known that fact until after the solemnization of the marriage: it was held that the marriage was valid. The King v. The Inhabitants of Wroxton, E. 3 W. 4.

640

MARSHAL OF THE KING'S BENCH. See ATTORNEY, 1.

MASTER AND SERVANT.

See EVIDENCE, 12.

MINES.

See POOR RATE, 2.

MISJOINDER OF ACTION.
See PLEADING, 3.

MISJOINDER OF COUNTS.
See PLEADING, 4.

MONEY HAD AND RECEIVED.
See ASSUMPSIT, 2, 4. BANKRUPT, 2.

MORTGAGOR AND MORTGAGEE.
See EJECTMENT, 2. LIEN, 1.

MUTUAL CREDIT.
See BANKRUPT, 6.
NEGLIGENCE.

See ATTORNEY, 2.
NOTICE OF APPEAL.
See APPEAL, 1, 2, 4.
NOTICE, SERVICE OF.

See PENAL ACTION.
NOTICE TO OVERSEERS.

See SETTLEMENT BY APPRENTICESHIP, 1.

NOTICE TO QUIT.

See MANDAMUS, 5, 6.

NOTICE TO REPAIR.
See EJECTMENT, 1.

NOTICE TO PURCHASE PREMISES.
See MANDAMUS, 1.

NOTICE OF WRIT OF ERROR.
See TRESPASS, 1.

NOTTINGHAM CASTLE.
See EVIDENCE, 3.

NUISANCE.

See HIGHWAY, 1.

By an act reciting that a railway between cer tain points would be of great public utility, and would materially assist the agricultural interest and the general traffic of the country, power was given to a company to make such railway according to a plan deposited with the clerk of the peace, from which they were not to deviate more than 100 yards. By a subsequent act the company or persons authorized by them were empowered to use locomotive engines upon the railway. The railway was made parallel and adjacent to an ancient highway, and in some places came within five yards of it. It did not appear whether or not the line could have been made, in those instances, to pass at a greater distance. The locomotive engines on the railway frightened the horses of persons us ing the highway as a carriage road. On indictment against the company for a nuisance, Held, that this interference with the rights of the public must be taken to have been contemplated and sanctioned by the legisla ture, since the words of the statute anthoriz. ing the use of the engines were unqualified; and the public benefit derived from the railway (whether it would have excused the alleged nuisance at common law or not), shewed at least that nothing was unreasona ble in a clause of an act of parliament giving

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ORDER OF REMOVAL. See APPEAL, 3.

OUTSTANDING TERM. See FINE.

OVERSEER.

863

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S. and E. were partners in alum works, for an indefinite period. E. was a dormant partner. In January 1829, it was agreed that the settlement of the partnership accounts, and all questions concerning the respective liabilities and the mode of winding up the affairs, and the manner and time of dissolving the partnership should be referred to an arbitrator; and it was afterwards agreed that S. and E. should respectively bid for the plant, utensils, and fixtures, and the referee was to declare the highest bidder to be the purchaser. In April 1829, S. having been declared the highest bidder, became the purchaser, and the works were entirely given up to him: Held, that the partnership was then determined, although the referee had made no order as to the dissolution; and that S. had no authority, after that time to bind E. by a promissory note. Heath v. Sansom, M. 3. W. 4.

PARTNERSHIP.

See BANKRUPT, 8. EVIDENCE, 13.

PARTY GRIEVED.
See APPEAL, 4.
PAWNBROKER.

172

PARTNER.

The pawnbrokers' act 40 G. 3, c. 99, s. 24,
enables justices, in case it shall be proved
before them that any goods pawned have
been sold contrary to the act, or have been em-
bezzled or lost, or are become or have been
rendered of less value than at the time of
pawning, through the default, neglect or
wilful misbehaviour of the person with whom
the same were pawned, to award satisfaction
to the owner as there specified:
Held, that justices have no power in the above

cases to commit in default of such satisfaction being made.

Quære, Whether a pawnbroker is answerable for pledges destroyed by accidental fire, as goods "lost" within the above clause. Semble, that the words "through the default," &c. apply to all the cases previously mentioned, and not only to that of the goods pawned having become of less value. Ex198 parte Cording, 3 W. 4.

PAYMENT.

See BANKRUPT, 8.

PAYMENT OF MONEY INTO COURT. See ASSUMPSIT, 1. EVIDENCE, 10. PENAL ACTION.

See APOTHECARY, 1, 2.

One calendar month before the commencement of an action for penalties against a clergyman for non-residence, a notice in writing of the intended writ and cause of action was delivered to the bishop's deputy registrar at his own house, and carried by him the next morning to the registry office, and there left: Held, that that was not sufficient to satisfy the 57 G. 3, c. 99, s. 40, which requires such notice to be delivered to the bishop of the diocese, by leaving the same at the registry of his diocese. Vaux v. Vollans, Clerk, H. 3 W. 525

4.

PENSION.

A pension during his Majesty's pleasure, granted by order in council on petition, for past services as advocate of the admiralty, and charged on the navy estimates, may be appropriated, under the insolvent act 7 G. 4, c. 57, s. 29, with the consent of the lords of the admiralty, for payment of creditors.

Quære, Whether this Court could have granted a prohibition to the insolvent debtor's court, against proceeding upon an order for such appropriation, if it had not been warranted by the statute? Ex parte Battine, E. 3 W. 4.

PETTY SESSIONS. See MANDAMUs, 5. PINDER.

690

See SETTLEMENT BY SERVING AN OFFICE, 1.

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