MISDIRECTION. In an action on the case, for not transferring stock, it appeared in evidence that the stock had been transferred under forged powers of attorney, executed by the agent of the plaintiffs (a corporate body) under their common seal, without their knowledge or consent; the Judge told the jury, if they believed the evidence, the powers of attorney were forgeries, and that believing them to be so, they were bound to find a verdict for the plaintiffs, unless they should be of opinion that the use made of the common seal of the corporation, whereby the defendants were imposed on and defrauded, was caused exclusively by the neglect or default of the plaintiffs; and that in considering whether the use so made of the common seal was the exclusive cause of the imposition and fraud practised on the defendants, they should consider whether there was any neglect or default on the part of the defendants in examining the powers of attorney, or inquiring into their genuineness; and if they were of opinion that there was such neglect or default, and that same in any degree contributed to the imposition and fraud, they should find for the plaintiffs.-Held (affirming the judgment of the Exchequer Chamber, Ireland), that such direction was wrong, as there must be something that amounts either to an estoppel or to ratification, to make negligence an answer to the action. H. L. Bank of Ireland v. Evans' Charities 624 MISJOINDER. See HUSBAND AND WIFE. PLEADING. MONEY. See CHARGINg Order. Lodgment of Money. MONEY HAD AND RECEIVED. See PLEADING. those who have taken defence, as to assess damages against those who have suffered judgment to go by default, and the notice of trial should be expressed accordingly. C. P. Thompson v. Shanley 619 OATH. See WEIGHMASTER. OFFICE. See EVIDENCE. WEIGHMASTER. ORDER. See CHARGING Order. PARTIES TO ACTION. See HUSBAND AND WIFE. PARTNERS. See AGREEMENT. EVIDENCE. 3. The plaintiff, having brought an action in the Superior Court to recover the sum of £10, being the balance due on foot of a civil-bill decree for £20: it was Held, per MONAHAN, C.J., and BALL, J., that the action was properly maintainable (dissentientibus TORRENS, J., and JACKSON, J.), who held that an action did not lie in a Superior Court upon the decree of an Assistant-Barrister. C. P. Moffatt v. Burrowes 297 4. Where a release can be only by deed, it must be alleged in pleading such E. release, that it was by deed. Hutchins v. Hutchins 234 "If the Court see from the contract that 5. A tenant in common, demising his the intention was to create a partnership, it is not necessary to have the word mentioned in the contract."[Per GREENE, B.-E. Greenham Gray 509 share to his companion, may distrain the goods and chattels of such companion; therefore where a tenancy in common was created by lease reserving rent, and a distress was made for that rent on the property of the lessee-Held, that such distress was valid. Q. B. Brennan v. Flood 332 6. Held also, that the party distraining need not in pleading allege that he delivered a notice in pursuance of the statute 9 & 10 Vic., c. 111; the want of such notice is a matter of avoidance. (Madden v. Bryan, 1 Ir. Com. Law Rep. 322, doubted). Ibid 7. In a writ of revivor, it is sufficient to describe the plaintiff as assignee of the judgment, without showing how he is such assignee. Q. B. Stapleton v. Bergin 421 8. A married woman cannot plead sepaCorately from her husband. C. P. 442 pinger v. Quirk 9. Where a woman is possessed of a term of years, dum sola, marriage does not operate as an absolute assignment of the whole term to the husband 444 during his life. Therefore, where a feme sole, being possessed of a term of years, married, and after the marriage an action was brought against the husband and wife for a year's rent, one gale of which had accrued due before the marriage, and the other gale during coverture, it was Held, on demurrer, that the husband and wife were both properly joined as parties, inasmuch as the wife was liable as well as the husband for the gale which accrued during coverture. C. P. Copinger v. Quirk 10. A Railway Company having constructed a tunnel on their own land, thereby diverted the subterranean water from plaintiff's land contiguous to the tunnel:-Held, that the Company were not liable for the diversion of this underground water, same being done in the exercise of the ownership of their own land. Q. B. Galgay v. S. & W. Railway Company 456 11. A party issuing execution ought to mark the writ for such sum only as is due after making all equitable as well as legal deductions, of which he is aware, and to which the debtor is entitled with respect to that debt, although the amount of such equitable deductions may not have been previously ascertained. E. Spencer v. Thompson 514 tute, although the tenant for life derived his right to the estate after the statute. Q. B. Swan v. Bookey 582 15. Such right of apportionment exists on parol demises made by tenants for life; that being provided for by 23 & 24 G. 3, c. 46 (Ir.). [Knight v. Boughton (12 Beav., 412) observed Ibid upon]. 16. An agister of cattle may maintain trover for them. E. Clarke v. Roe 1 17. Where a declaration contains a count for an excessive distress, and a count in trover for the same matter, although the plaintiff is not bound to elect at the trial on which count he will proceed, yet he cannot have judgment on both, being inconsistent. Ibid (Summons and Plaint.) 18. Where a plaint is ambiguous, it not appearing whether the plaint was intended to include several causes or but one cause of action, and the defendant, treating it as including several, demurred to one and took issue on the others :-Held, that the proper course in such a case was, not to demur, but to apply to the Court to strike out so much of the plaint as created the ambiguity. Q. B. Longford v. Oldham 134 19. In an action on a replevin bond, the condition of which was, "that if the said A. (the defendant) should prosecute his suit against the said P. (the plaintiff), in the Court of Queen's Bench, for taking and unjustly detaining his goods, &e., or should return all the said goods and chattels to the said P., her executors or administrators, then the obligation to be void, but otherwise to remain in full force;" the summons and plaint averred that A. never did return the goods, and that although he did prosecute his suit, there was a verdict against him. To this the defendant demurred.Held, allowing the demurrer, that assuming the word "prosecute" to mean prosecute with effect," and that the plaintiff had accordingly averred a breach of one part of the condition-yet that it had not averred a breach of the alternative, inasmuch as the meaning of the words "return the said goods," &c., must be that he should return them, if a return was awarded (otherwise the bond would not have been assignable under the statutes); and the plaint did not aver that a return had been awarded. C. P. Powell v. Archer 279 20. The Court will not set aside a summons and plaint, on the ground that each cause of action has not been commenced in a new paragraph, as required by the 34th General Order, where it does not appear that the defendant had been thereby embarrassed in his pleading. C. P. Red mond v. Butler 287 (Defence and subsequent Pleadings.) 21. In an action for breach of contract, the plaint stated that the defendants had agreed with the plaintiff, in consideration of 9s. 9d. which he had was irregular, but that the rest formed but one defence. The Court allowed the judgment to be set aside, the defendants paying the costs of setting it aside, and also the costs of the motion. C. P. Byrne v. Magnetic Telegraph Company 94 22. In an action for slander, the plaint alleged that the words were spoken of the plaintiff in his profession as a surgeon, and averred, as special damage, that in consequence of such words, divers persons had ceased to consult him, especially A. B. The defence traversed the special damage. The Court refused to set aside the defence, but directed issues to be framed, raising the material question. Q. B. Custis v. Sandford 197 23. A portion of a defence pleading a release struck out as ambiguous, for not stating that the release was under seal. E. Hutton v. Hutchins 234 24. The Court refused to allow this defence to be amended, without an affidavit of merits. Ibid libel, defendant pleaded that the publication was not a libel, the Court refused to set aside such defence on motion. Q. B. O'Connor v. Fisher 246 paid them, to transmit a certain mes-25. Where, to a summons and plaint for sage by magnetic telegraph from Dublin to Ardrossan, and that they had failed to do so, and had moreover, by misrepresenting to the plaintiff that they had so forwarded the message, prevented the plaintiff from having the message transmitted in any other way. The defence, which was filed without the leave of the Court, stated that the defendants had not made such an agreement as in plaint mentioned, but that they had made a certain agreement, as set forth in the defence, and that they had performed it. The defence then stated that the defendants had tendered the said sum of 9s. 9d. to the plaintiff, that he had tiff marked judgment under the 45th 26. The indorsement of payment and setoff directed by the 41st section of the Common Law Procedure Act, will not be required by the Court, when, from the nature of the dealings between the parties, accounts of them were not kept by the defendant; and it is impossible for him to recollect them. E. Dixon v. Toole 261 27. A defence of payment will not be set aside where, from the nature of the dealings with the plaintiff, the defendant is unable to give in detail the dates or amounts of the various payments made by him. Ibid 28. In an action on a bill of exchange, drawn by defendant, and indorsed by him to the plaintiff, the Court set aside, with costs, a plea that the defendant never was indebted to the plaintiff in the amount claimed. C. P. Meade v. Morrow 284 29. Plaintiff, by a charter-party, agreed with the defendants to carry a cargo from B. to L., at the rate of 15s. per ton; the defendants agreeing to pay for 240 tons, whether that weight should be shipped or not; freight to be paid on right delivery of the cargo. The plaint brought for breach of this agreement alleged that plaintiff had made a right delivery to the defendants of the said cargo; that the freight amounted to £180, and that defendants only paid £146, and claimed as damages the difference. To this the defendants pleaded, that they tendered 240 tons for shipment, and that plaintiff refused to carry same, and received and carried only a portion, and absolutely refused to carry the remainder; which remainder the vessel could have reasonably received, and could have carried safely; and that they paid for the portion so carried :-Held, on demurrer, that this plea was a good answer to the action. Q. B. ments v. Russell Cle 318 30. To a plaint alleging that the defendants entered certain lands of the plaintiff called the sea shore of Ballyellery, and carried off sand therefrom, the defendants pleaded that the lands were the soil and freehold of the Queen, and that they, as occupiers of land in the barony of Corconroe, together with the other occupiers of land in such barony, have, from time immemorial, had and used and enjoyed the privilege, liberty, benefit and easement of entering on so much of said lands as lie between high and low water-marks of ordinary tides, and then and there to raise the soil and sand, and carry same away for the purpose of manure; and that in user and exercise of such right and privilege, they broke and entered such lands-Held, that such defence was bad, as alleging a custom for occupiers of land in a barony, to an easement therein, which should have been pleaded by prescription; there is no distinction in this respect between lands the property of the Crown and lands the property of the subject. Q. B. Macnamara v. Higgins 326 31. Where husband and wife were sued jointly in an action on a contract, and the Court made an order granting liberty to the wife to take defence separately, and to file a demurrer, without her husband, the Court subsequently, on the application of the plaintiff, set aside their order and the demurrer filed by the wife, without prejudice to the defendants pleading jointly afterwards. C. P. Copinger v. Quirk 442 33. To a summons and plaint for oral slander, imputing to the plaintiff that he lost his practice (as a surgeon) in D. by his drunkenness and ungentle-. manly conduct, the defendant denied the use of the words, and further pleaded that as chairman of a board of guardians, in whose district the plaintiff was medical attendant, he joined in a conversation at a meeting of the board, relative to the fitness for, and conduct of the plaintiff in, the office; and there stated that he had been informed that plaintiff had been addicted to and had been charged with intemperate habits; which statement he believed it his duty as such chairman to make; and defendant further pleaded that the words were spoken without malice, in the exercise of his office as chairman, and being so spoken were privileged.-Held, on demurrer, bad pleading, because it did not justify the words which the summons and plaint alleged to have been used, but other and different words, and because seeking to excuse the slander, the defence de |