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-Consideration.-Although evidence is not admissible to show, contrary to the terms of a deed, that by the contract the consideration was not to be paid in money, as stated in the deed, but in goods, such evidence is admissible to show that, in point of fact, the consideration was so paid, and that goods were accepted in payment. Smith v. Battams, 26 Law Journ. Ex. 232.

EASEMENT [vol. 3, pp. 93, 260, 300, 319].— Water [vol. 3, p. 305]—Right of action for fouling water. Where a party has a right to water from a river, canal, &c., he has a right to have it, as against a third party, without pollution by such third party. The plaintiff, by permission of a canal company, made a communication from the canal to his own premises, by which water got to those premises, and with which water he fed his boilers. The defendant, without any right or permission from the canal owners, fouled the water in the canal, whereby the water, as it came into the plaintiff's premises, was fouled, and by the using of it the plaintiff's boilers were injured: Held, that the above facts established a right of action in the plaintiff against the defendant. Waley v. Laing, 29 Law Tim. Rep. 312.

INTERPLEADER.-Title of third party-Nonregistered bill of sale.-The case of Carne v. Brice (7 Mees. and W. 183) affirms the proposition that in interpleader cases on executions, the substance of the issue is, whether the execution creditor had any right to seize, and not to ascertain the strict legal rights of all parties. In such cases, the simple question is, whether the judgment creditor had a right to take the goods as the property of the person against whom he had obtained judgment, and it is wholly immaterial for the purposes of deciding this, which is the plaintiff and which is the defendant, the claimant or the creditor. Accordingly, it has been held, that in an interpleader issue between a claimant under a bonâ fide bill of sale duly registered, and an execution creditor of the assignor, the latter cannot set up a prior bill of sale to a third party, also bonâ fide, but void as against execution creditors for want of due registration under the 17 & 18 Vic. c. 36, s. 1. Edwards v. English. 26 Law Journ. Q. B. 193.

LANDLORD AND TENANT.— Rights and liabilities of assignees of the reversion on part of demised premises-Joinder of tenants in common-Evidence of usage as to the terms of letting on a particular estate.Tenants in common, assignees of the reversion on a lease, may join in suing, and be jointly sued, on covenants therein. Assignees of the reversion may be sued by an outgoing tenant on a contract or custom of the country by which he is entitled to receive, on the termination of his tenancy by notice from the landlord, reasonable allowance for the value

of labour bestowed on the land, and the benefit of which he loses by such termination of his tenancy, although he has paid all the rent to the original landlord and received notice from him, the assignees having renewed the notice after the conveyance to them, and possession having been given to them. A stipulation in a contract of tenancy that the tenant shall keep a certain proportion of the land demised for grass, and pay so much per acre for any deficiency below such proportion, is extinguished by severance of the reversion. The rule of law as to importing into the terms of the tenancy, the "custom of the country," does not admit of evidence of the usage of a particular estate, or the property of a particular individual, however extensive it may be, it not being shown that the tenant was aware of it. Womersley v. Dally, 26 Law Journ. Ex. 219.

HUSBAND AND, WIFE.-Contract for necessaries [vol. 3, p. 387; vol. 2, pp. 178, 375]-Credit to wife alone-Evidence of marriage—Nonsuit.— When goods for which a wife has ordinarily authority to contract on the part of her husband, such as articles of dress, are ordered by her and delivered at his residence, where she also resides, primâ facie the husband is liable, there being a presumption of law in favour of the plaintiff. And any evidence to rebut the presumption, as that the articles are unnecessarily costly in their character, or that the credit was given exclusively to the wife, must be submitted to the jury. The question whether the party who ordered the goods was the wife of the defendant must be raised at the trial; and the point is not raised, but rather waived, by an objection that the credit was given to the wife alone; and, semble, that if the parties live together, and the woman represents herself as the wife of the defendant, that is primâ facie evidence that they were married. The objection that credit was given to the wife alone, means that it was given to her to the exclusion of her husband's liability; and the circumstance that the goods were booked to her alone, but in her marriage name as the defendant's wife, is not sufficient to show this; on the contrary, the fact that she was known by the plaintiff to be a married woman, and supposed to be the defendant's wife, is rather prima facie evidence that the credit was given to the husband. Jewsbury v. Newbold, 26 Law Journ. Ex. 247.

LIBEL.-Justification— Demurrer.- Action for libel, imputing to plaintiff duplicity, and that nothing was too base for him to be guilty of; plea, justifying on the ground that the plaintiff had falsely and fraudulently asserted that his signature to a certain memorandum called an "I O U" was not his handwriting. On demurrer, held sufficient justification. Tighe v. Cooper, 3 Jur. N. S. 716.

LIFE INSURANCE [ante, pp. 71, 72].-Fraud in effecting-The life and his referees not the agents of the assured-Effect of company's prospectus · Evidence. The case of Wheelton v. Hardisty (ante, p. 71), upon the subject of life policy contracts, deserves particular attention. Loose dicta, and marginal notes hastily adopted into text-books, had led to an impression that referees are the agents of the party effecting an insurance, so as to bind him by misrepresentations or fraud on their part. Upon principle, it was difficult to understand why persons whose names were merely mentioned as being likely to give information to the office regarding the life insured should be clothed with so extensive an authority, while the hardship and inconvenience were obvious of allowing confidential answers, which the party insuring could neither know nor correct, to deprive him or his family of the provision which he had been endeavouring to make, by taking annual sums from his income during his life, or that of the cestui que vie. The Court of Queen's Bench, pressed by these considerations, and the want of real authority against them, decided, in the following case, that the referees are not the agents of the party insuring, and, also, that if the insurance be on the life of another, the life insured is not the agent of the party insuring. This relation, however, may of course be created between the parties by express contract; but, in the absence thereof, it is not to be raised by implication. The real question in all such cases is, what is the contract between the parties? It should also be observed, that a party employed by another to effect the insurance, as a broker, to make an insurance on a vessel; stands in a wholly different position from a referee. The decision of the court (which was not come to unanimously) was as follows:-Where a person insuring the life of a third party is, on negotiating the insurance, required merely to state his belief in the information furnished by the life and his referees, and the truth of such information is not made the basis of the contract, the person insuring is not affected by fraud of these parties, in furnishing information, it not appearing either that he was aware of the fraud, or that they were employed by him as agents in effecting the insurance. In the prospectus usually issued by an insurance company to its customers, it was stated that every insurance should be unquestionable, unless fraud was practised in obtaining it: Held (per Wightman, Erle, and Crompton, J.J., dissentiente Lord Campbell, C. J.), that this included fraud of the life and his referees, and was not confined to fraud of the assured. Quære, how far a policy ought to be controlled by such a prospectus. The mere fact that a prospectus has been usually circulated by a company, affords no evidence from which a

jury is entitled to infer that it has come to the knowledge of and has been acted upon by a party insuring, and positive evidence must be given that it has actually come to his knowledge (dissentiente Lord Campbell, C. J.). Wheelton v. Hardisty, 5 Week. Rep. 784.

PAYMENT.-Acceptance of bills in satisfaction— Suing for consideration without producing or accounting for bills.-If a bill of exchange has been given and received in payment of the price of goods, &c., the party to whom it was given cannot sue upon the consideration without producing or accounting for the bill. But if the bill has found its way back to the defendant, the plaintiff is at liberty to sue upon the consideration. This will explain the following decision:-The defendant, in payment of some goods, accepted two bills drawn on him by the plaintiff, the vendor, and returned them to him by post. The plaintiff, in a letter, to which a receipt stamp was affixed, acknowledged the receipt of the bills, and that they had been placed to the defendant's credit. The plaintiff afterwards sent the same bills by post to the defendant in a letter, requesting him to accept the bills payable at a banker's and then to return them. The bills never were returned to the plaintiff; the defendant denied having received them back, but there was other evidence that he had so received them. It was found as a fact, that the plaintiff had not accepted the bills as payment: Held, that the plaintiff might recover the price of the goods sold to the defendant in an action for goods sold and delivered, without producing the bills. Widders v. Gorton, 26 Law Journ. C. P. 165. MASTER AND SERVANT.-Action under Lord Campbell's Act (9 & 10 Vic. c. 93)—Liability of a master for injury to a servant in the course of his employment. The following is a more precise statement of the doctrines of the case of Dynen v. Leach, noticed vol. 3, p. 400:-Where an injury happens to a servant while in the actual use of an instrument, engine, or machine, in the course of his employment, of the nature of which he is as much aware as his master, and the use of which is, therefore, the proximate cause of the injury, he cannot, at all events if the evidence is consistent with his own negligence in the use of it being the real cause, nor in case of his dying from the injury can his representative, under Lord Cambell's Act (9 & 10 Vic. c. 93), recover against his master, there being no evidence that the injury arose through the personal negligence of the master. Nor is it any evidence of such personal negligence of the master that he has in use in his works an engine or machine less safe than some other which is in general use. Therefore, where a labourer was killed through the fall of a weight which he was raising by means of an engine

to which he attached it by fastening on to it a clip, and the clip had slipped off it, it was held that there was no case to go to the jury in an action by his representative against the master, although it appeared that another and safer mode of raising the weights was usual, and had been discarded by the orders of the defendant. Dynen v. Leach, 26 Law Journ. Ex. 221.

MORTGAGE.-Abortive treaty for mortgage— Liability for costs—Borrower and lender-No implied rule of law as to title on proposed loan on security.— The following decision is one deserving the attention of solicitors engaged in mortgage tranactions, and suggests the necessity of an agreement as to the costs of investigating the title upon a proposed loan, especially where the amount is considerable, and the title likely to be complicated; the Court of Queen's Bench having decided that a party proposing to borrow money on security, does not bind himself by implication of law to produce a security of any particular degree of safety, or of any particular title, as in the case of a contract of sale where primâ facie the vendor is to make out a title in fee. On the contrary, the transaction of borrowing implies that a security of any degree of safety may be made available by a term compensating for the increased risk. Therefore, where a treaty for a loan on specified securities goes off, the lender not being satisfied with the title, there being no contract by the proposed borrower to make any other or better title than he had, and the lender not being bound to accept the security unless he found it satisfactory, and no stipulation to pay costs in the event of the treaty going off, the proposed borrower is not liable for the costs incidental to the investigation of the title. Melbourne v. Cottrell, 29 Law Tim. Rep. 293.

SHERIFF.-Wrongful discharge of debtor-Pleading-Evidence-Authority to discharge—Negligence of plaintiff conducing to discharge.-In an action against a sheriff for wrongfully discharging the judgment debtor, the gist not being mere negligence as in an action for an escape, it is doubtful whether it is a defence that the plaintiff's negligence contributed to the injury, by his sending an order, which sheriff might have understood as authorising the discharge; and, semble, that the defence must be that the plaintiff authorised the discharge, and that it must be specially pleaded. Where it is so pleaded, and it is attempted to be supported by a written document, the construction of it being for the judge, if he leaves it to the jury, and it is not, in the opinion of the court, an authority to discharge (as if it was a mere countermand sent without knowledge that the writ had been executed), that being a misdirection, a verdict for the defendant cannot be sustained on the

general issue, the judge not having been desired to leave to the jury the question of negligence on the part of the plaintiff, even supposing such a question would be a proper one on that issue, which it should seem it would not be. Hodges v. Paterson, 26 Law Journ. Ex. 223.


WILL.-Unattested paper - Reference to, by subsequent duly executed codicil.-In the case of Feraris v. Lord Hertford (3 Curt. 468; on appeal, 4 Moo. P. C. 366), there were several codicils, some duly executed, and others unduly executed, and it was held that the expression in the last duly executed paper, "I hereby confirm all my wills and codicils," would only apply to the duly executed codicils, because such papers were in existence to satisfy the strict meaning of the word. But the case is different where there is nothing before where the testator has left but one paper, and that unattested, as appears by the following case in the Prerogative Court. A. signed a paper intended for her will, in 1851, which was attested by only one witness. In 1856, on the day before her death, she duly executed a codicil "to my last will and testament." The paper of 1851 was not produced at the time the codicil was executed, but was found after A.'s death in a locked chest in her room; the codicil in a drawer. On a view of the two papers, and on evidence of the circumstances attending the factum of the codicil: Held, that the paper of 1851 was sufficiently identified as the last will and testament referred to by the codicil, and that it acquired validity from the due execution of the codicil. Maddock v. Allen, 29 Law Tim. Rep. 299.


ARBITRATION.-Common Law Procedure Act, 1854 (17 & 18 Vic. c. 125), ss. 3, &c. [set out 1 Chron. 157, 158]-Compulsory arbitration [ante, f. 27]. A court of common law may, at least with the consent of the parties, refer a cause to arbitration under the compulsory clauses of the Common Law Procedure Act, 1854 (17 & 18 Vic. c. 125; see 1 Chron. 157, 158), although it has been sent from the Court of Chancery as one involving matters fit to be disposed of by a court of law. Where it was suggested that a cause proposed to be referred to the master under that statute turned almost entirely on a question of law, the court, with consent of the parties, referred it to the master, with a direction that, if that question arose before him, he should make an interlocutory report referring it to the court, which, in the event of the decision of that question being insufficient to end the dispute, would send it back to him to go into the rest of the account. Master v. Hamilton, 3 Jur. N. S. 722.

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-Error or misconduct of arbitrator, not apparent on the face of the award.-We have noticed the following case in vol. 3, p. 402, but the following will be found to be a clearer statement. It may be questionable, whether the old rule of law, that it is not open to the parties to a reference to complain of an error of the arbitrator, except when apparent on the face of the award, or in case of misconduct, as it rested on the principle that the parties must abide by the award of any arbitrator they had selected, applies to the case of a compulsory reference under the Common Law Procedure Act, 1854; or whether, as the arbitrator under such a reference is the officer of the court, and the reference is a procedure in the suit in place of trial in the ordinary way, the court has a jurisdiction to review his decision. And it may be doubtful how far an error arising from a wilful disregard of the pleadings or admissions in the case may amount to such misconduct in an arbitrator as will warrant the court, under the old rule of practice, in correcting the error. But where the error has been extremely trivial in amount, as compared with the total amount adjudicated upon by the arbitrator, the court will, in any case of arbitration, be reluctant to re-open the case, and will probably not do so unless there has been intentional injustice. Brown v. Hellaby, 26 Law Journ. Ex. 217.

COSTS.-Trover-Entry of verdict distributivelyPractice and costs as to issues.-Where a declaration is for articles distinguishable, and the verdict is generally for the plaintiff, and there is a rule to enter it for the defendant, and that is decided for the defendant as to some of the articles, there is no reason why the verdict should not be entered for the defendant as to such articles, and if possible the costs of trial should be apportioned. And it has been decided by the Court of Exchequer in the following case, that in actions for the conversion of goods, the verdict may, on the general issue, and a plea of not possessed, be entered distributively; and when a verdict has been taken for the plaintiff, subject to a point reserved, on which the defendant has leave to move to enter the verdict or to reduce the amount of damages, and the court, on the hearing of the rule, determine in favour of the plaintiff, except as to a portion of the chattels claimed, distinguishable, whether as fixtures or otherwise; this is equi-. valent to a direction that the verdict should be entered for the defendant for such portion, and not merely that the damages shall be reduced by the value of such goods, and the costs will follow such entry of the verdict as on a distributive issue. If a question arises as to the meaning and intention of the court the application should be made to the court to explain its direction; but if the question is as to the actual facts whether the goods are distin

guishable or not, or whether there was any separate parcel of goods, the reference should be to the judge who tried the cause, as the question can only be settled by a reference to the facts stated in his notes, and it will be for him to arrange the entry of the verdict. Freshney v. Wells, 26 Law Journ. Ex. 228.

DEATH OF PLAINTIFF [vol. 2, p. 182; vol. 3, pp. 8, 234, 386].-Ejectment-Entry of judgment nunc pro tunc.-Before the Common Law Procedure Act it was held that a motion might be made by executors to enter a verdict pursuant to leave reserved at the trial, the party having died after trial, the court making it a condition by rule that the executors should be liable for costs in the event of the judgment being against them (Freeman v. Rosher, 13 Q. B. Rep. 780; S. C. 18 Law Journ. Rep. Q. B. 340). In the following case, where it appeared that a claimant in ejectment had died after trial, but before argument of a special case, subject to which the verdict was taken for him, it was doubted whether section 194 of the Common Law Procedure Act, 1852, applies so as to require a suggestion to be entered of the death; but after decision in favour of the claimant, the court allowed the heir to enter judgment nunc pro tunc. Denison v. Holiday, 26 Law Journ. Ex. 227.

INJUNCTION [vol. 3, p. 159]—Ejectment.— The 82nd section of 17 & 18 Vic. c. 125, provides that the plaintiff at any time after the commencement of an action, and whether before or after judgment, may apply exparte to the court or a judge for a writ of injunction to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract complained of, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right. The 79th section provides that, in all cases of breach of contract or other injury, where the party injured is entitled to maintain, and has brought an action, he may claim a writ of injunction. It has been decided that a court of common law cannot grant an injunction in an action of ejectment under the above 82nd section of the Common Law Procedure Act, 1854, 17 & 18 Vic. c. 125. Baylis v. Legros, 26 Law Journ. C. P.


JUDGMENT, ACTION ON.-Application for costs on action on judgment should be made at chambers. -An application, on the part of a plaintiff, to be allowed costs in an action on a judgment under the statute 43 Geo. 4, c. 46, s. 4, must be made, in the first instance, at chambers, although, if it raises any question of difficulty, the judge may refer it to the court.—Claridge v. Wilson, 26 Law Journ. Ex. 246. NEW TRIAL.-Moving for in person by a prisoner-Habeas corpus to move for a new trial.—The

court will not grant a writ of habeas corpus to bring up a prisoner, in order that he may move in person for a new trial, in an action in which he is a party. Binns v. Moseley, 3 Jur. N. S. 694.

VENUE. Changing - Irregularity-Notice of trial-Judge's order-Trial in the wrong county.— Where an order has been made, by indorsement on a summons, either by a judge or by the opposite party, to change the venue to a different county, the trial in such county, after notice of trial for such county, is a mere irregularity, although the order has not been properly drawn up nor the venue in the declaration altered according to it; and the proceedings will not be set aside after judgment has been signed, or the first four days of the next ensuing term have elapsed.—Selwyn v. Smith, 26 Law Journ. Ex. 226.


ACT OF BANKRUPTCY.-Going abroad-Remaining abroad-Time-Bankrupt Act of 1849, ss. 67, 88, 89, 90, and 233-Disputing adjudication in colonial courts.-The 233rd section of the Bankruptcy Consolidation Act provides :-"That if the bankrupt shall not (if he were within the United Kingdom at the date of the adjudication), within two calendar months (1 Chron. 51) after the advertisement of the bankruptcy in the London Gazette, or (if he were in any other part of Europe at the date of adjudication) within three months after such advertisement, or (if he were elsewhere at the date of the adjudication) within twelve months after such advertisement, have commenced an action, suit, or other proceeding to dispute or annul the fiat or the petition for adjudication, and shall not have prosecuted the same with due diligence and with effect, the Gazette containing such advertisement shall be conclusive evidence in all cases as against such bankrupt, and in all actions at law or suits in equity brought by the assignees for any debt or demand for which such bankrupt might have sustained any action or suit had he not been adjudged bankrupt, that such person so adjudged bankrupt became a bankrupt before the date and suing forth of such fiat, or before the date and filing of the petition for adjudication, and that such fiat was sued forth or such petition filed on the day on which the same is stated in the Gazette to bear date." In the following case the bankrupt, a trader within the Act, being largely in debt, left England without any secresy, in November, 1853, for New Zealand. In March, 1855, a petition was filed against him, and he was adjudged a bankrupt: Held, that, notwithstanding the 89th & 90th sects. of the Bankrupt Act of 1849, and the length of time that had elapsed, the adjudication was valid, inasmuch as the bankrupt, by remaining abroad, must be assigned to have done so

with an intention "to defeat or delay his creditors," and had thus committed a fresh act of bankruptcy; and this, irrespective of the intention with which he might originally have left England. The property of the bankrupt in New Zealand having been seized under an authority from the assignees here, the bankrupt commenced an action in the Supreme Court of that Colony to set aside the adjudication. A demurrer for want of jurisdiction was allowed by that court, and from this decision the bankrupt appealed to the Privy Council: Held, that this was a proceeding which kept alive his right under the 233rd section to dispute the adjudication, and that an action for that purpose need not necessarily be brought in an English court, when the bankrupt was residing in any of the colonies. Re Bunny, 29 Law Tim. Rep. 318.

ARRANGEMENTS [ante, p. 28].--Bankrupt Law Consolidation Act, 1849-Arrangement clauses, 211, 222-Certificate-Refusal of composition, effect of -Creditor refusing composition cannot sue.-The 211th section of the Bankruptcy Consolidation Act, 1849, relating to arrangements by traders with their creditors, provides, that traders unable to meet the claims of their creditors may petition the Court of Bankruptcy for protection. The 215th section provides, that the creditors at the first sitting shall prove their debts; and if three-fifths in number and value of those who have proved debts to the amount of £10 and upwards, assent to the proposal made by the debtor, a sitting for confirmation is to be appointed. The 216th section enacts, "that at such second sitting, or at any adjournment thereof, the creditors may also prove their debts; and if threefifths in number and value of those who have proved debts to the amount of £10 shall agree to accept such proposal as was assented to at the first sitting, the terms thereof shall be reduced into writing, and the creditors shall sign the same; and such resolution or agreement (subject to such confirmation as is hereinafter mentioned) shall thenceforth be binding, and of full force, as well against such petitioning trader as against all persons who were creditors at the date of his petition, and who had notice of the said several sittings of the court." By the 221st section, it is provided, "that so soon as the said resolution or agreement shall have been carried into effect, and the creditors of such petitioning trader shall have been satisfied, according to the tenor thereof, the court shall give to such petitioner a certificate under the hand and seal of the commissioner, in the form contained in the schedule A c, to the act annexed, setting forth the filing of the petition, the resolution or agreement of the creditors, and that the said resolution or agreement has been fully carried into effect;

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