Death of Cresswell, J., 1.
Wightman, J., 581.
Promotion of Wilde, J., 1.
Appointment of Pigott, B., 2.
Shee, J., 581.
Attorney and Solicitor-General.
Resignation of Atherton, A. G., 2.
Promotion of Palmer, S. G., 2.
Appointment of Collier, S. G., 2.
Queen's Counsel.
Cooke, Gray, Powell, Loch, 2.
Patent of Precedence.
Ballantine, Serjt., 581.
Rights of adjoining mine-owners.
The owner of a mine at a higher level than an adjoining mine has a right to work the
whole of his mine in the usual and proper manner for the purpose of getting out the min-
erals in any part of his mine; and he is not liable for any water which flows by gra-
vitation into such adjoining mine from works so conducted. But he has no right by
pumping or otherwise to be an active agent in sending water from his mine into the ad.
joining mine. Baird v. Williamson, 376.
Compensation for damage in working,-See DEED, 2.
MISTAKE OF FACT,-See MONEY HAD And received.
MONEY HAD AND RECEIVED.
Money paid under mistake of fact.
Certain bales of cotton were consigned by merchants at Madras to London for the ac-
count of their correspondents, the plaintiffs, who were merchants at Liverpool, under bills
of lading having in the margin, pursuant to the course of business at Madras, a note of the
measurement and the amount of freight. On the ship's arrival, the plaintiffs' brokers sent
the cotton to a wharf with a copy of the bills of lading, another copy of the bills of lading
being forwarded to the plaintiffs. According to the ordinary practice, the wharfinger, on
receiving the cotton, measured it, and sent a note of the measurement to the defendants,
who were the ship's brokers (one of them also being the owner). The defendants as brokers
made out a freight-note, adopting the measurement from the wharfinger's note, which in
consequence of the swelling of the bales on the voyage was considerably more than the Ma-
dras measurement in the margin of the bills of lading. The freight-note so made out was
sent by the defendants to the plaintiffs' brokers, who, assuming it to be correct, paid the
amount, and received credit for it in their account with their principals; and the defend-
ants settled the ship's accounts upon the supposition that all was right. The plaintiffs,
on balancing their accounts with the Madras house at the end of the following year,
discovered for the first time that they had overpaid the defendants to the extent of 881. 88.
3d., and brought an action to recover it back:-Held, that, the money having been paid
under a mistake of fact, the plaintiffs were entitled to recover it back from the owner of the
ship, but not as against the two defendants as ship's brokers, who had settled accounts with
the owner in the bonâ fide belief that the payment bad been rightly made. Shand v.
Grant, 324.
MONEY PAID,--See GAMING.
NAVIGABLE RIVER.
Nuisance in,-See NUISANCE, 1.
NEGLIGENCE.
In navigating vessels.
The declaration stated that the plaintiffs were possessed of a telegraphic-cable for the
transmission of messages between Dover and Calais by means of electricity, part of which
cable was by charter of the Crown lying at the bottom of the sea within three marine miles
of the shore; that the defendants were possessed of a certain ship on the high seas, and
so carelessly navigated the same that their anchor fouled and injured the cable. Plea,
that the telegraphic-cable was lying in the high seas more than three marine miles from the
shore, and out of and beyond the realm, dominion, sovereignty, and jurisdiction of the
In navigating vessels (continued).
Queen; that the defendants were Swedes, and the vessel a Swedish vessel; that, in the
usual and ordinary course of navigation, she was proceeding on a voyage from Spain to
a port in Sweden, and in the usual and ordinary course of navigation cast anchor; that,
without any default of the defendants, the anchor dragged, and in being raised became
entangled with and injured the telegraphic-cable; that there was no buoy or mark to
show the spot in which the telegraphic-cable was lying, and that its position and exist-
ence were wholly unknown to the defendants and those having the management and direc-
tion of the vessel and anchor. Second replication, that the defendants could and ought
to have known, and had the means of knowing, and but for their negligence and want
of ordinary care would have known, the position and existence of the telegraphic-cable,
and that it was through the carelessness, negligence, and want of ordinary or any care that
they did not and would not know or use the means of knowing of its position and exist-
ence; that the anchor was not cast, got up, dragged, or entangled in the due course of
navigation, as alleged, but contrary to the due course of navigation; and that the defend-
ants, by their mariners and servants, with such means of knowledge, and with a culpa-
ble and unlawful omission to use the said means of knowledge, and out of and contrary to
the due course of navigation, by and through the carelessness, mismanagement, and cul-
pable want of knowledge of the defendants and their mariners and servants, committed the
grievances in the declaration mentioned. Third replication,-as to so much of the plea as
alleged the grievances complained of to have been committed out of the realm, dominion,
sovereignty, and jurisdiction of the Queen,-that one end of the said telegraphic-cable
was fastened to the soil of the county of Kent, and that the said grievances were commit-
ted within three miles of the shore, and not more than three miles from the shore, as in
the plea alleged. New-assignment (as to part of the plea), that the plaintiffs sued, not only
for causes of action in the plea admitted, but also for causes of action committed within
three miles of the shore; and also for that, after the servants and mariners of the de-
fendants were informed and had express notice of and knew the position and existence of
the telegraphic-cable, and were warned and cautioned that they would injure the same, the
defendants, through the carelessness and negligence of themselves and their mariners and
servants in that behalf, and contrary to their duty in that behalf, so negligently and in-
properly, and without using due or ordinary or any care, and with more force and violence
than was necessary, disentangled the anchor and cable of the defendants from the tele-
graphic-cable with such carelessness and negligence that by means thereof the same was
injured as in the declaration mentioned:-Held, on demurrer,-that the declaration was
good, by reason of the imputation of negligence; that the plea was good, as an argu-
mentative traverse of the negligence charged in the declaration; that the second replica-
tion was a good traverse of the plea; that the third replication was bad, inasmuch as it
traversed an immaterial allegation in the plea; and that the new-assignment was good.
The Submarine Telegraph Company v. Dickson, 759.
NEW-ASSIGNMENT,-See NEGLIGENCE.
It is not necessary to have a copy of the judge's notes at the time of moving for a new
trial in a case tried, under a judge's order, before a county court. Morrison v. Wookey,
NOTICE OF ACTION.
For an act done under the authority of a statute.
1. To entitle a defendant to notice of action under a statute, he must honestly intend to
put the law in motion, and really believe in the existence of a state of facts which if they
existed, would have justified him in doing as he did. Heath v. Brewer, 803.
2. The 24th section of the Hackney Carriage Act, 6 & 7 Vict. c. 86, empowers the pro-
prietor of a cab, if he has any complaint against his driver, to summon him before a mag-
istrate, who may endorse the nature of the offence on his license and the 47th section
provides that a notice of action shall be given where a party is sued for "anything done
under the authority of the act:"-Held, that a cab-proprietor who, without summoning
the driver before a magistrate, defaced his license by writing on it that he had been dis-
missed for damaging his cab and bringing home no money, was not entitled to a notice of
action, inasmuch as he could not have honestly intended to put the law in motion or really
believe that he was acting under the authority of the statute. Id.
NOTTINGHAM CANAL COMPANY,-See CANAL ACT.
NUISANCE.
In a navigable river.
1. One who erects or keeps erected on the shore of a navigable river between high and
low-water mark a work for the more convenient use of his wharf adjoining, which work,
either from its original defective construction or from want of repair, presents a dangerous
(hidden) obstruction to the navigation, is responsible for an injury thereby occasioned to a
barge coming to the wharf, without any default on the part of the persons in charge of it.
White v. Phillips, 245.
2. The defendants were possessed of a wharf abutting on the river Thames, the soil in
front of which was for the more convenient access thereto excavated by their predecessor,
who placed there a campshed, a structure of piles and planks to keep up the adjoining
soil. This campshed was originally improperly constructed, and was suffered to be out of
repair. A barge of the plaintiffs was brought to the wharf for the purpose of receiving
goods by means of the wharf crane from a schooner which was moored alongside and was
discharging her cargo at the wharf, and those in charge of her, not being aware of the ex-
istence or the condition of the campshed, so moored the barge, that, on the tide receding,
she came upon one of the piles, which forced a hole in her bottom, and the barge and its
contents were damaged :-Held, that these facts disclosed a duty in the defendants to keep
the campshed in repair or give notice of the danger, and a breach of that duty for which
they were responsible in damages; and that it was immaterial whether or not the plain-
tiffs paid for the use of the wharf or the crane.
Ib.
Adjoining a highway.
3. If a highway is dedicated to the public with a dangerous obstruction upon it, such as
would have been a nuisance if placed upon an ancient way,-as, a flight of steps, or a pro-
jecting flap, no action can be maintained against the person dedicating it for an injury
caused thereby. Robbins v. Jones, 221.
4. Nor will an action lie against the owner of a house having a covered area adjoining
a public footway, which area was in existence before and at the time of the dedication of
the highway, and was dedicated to the public before the last General Highway Act, for
an injury to an individual from the giving way of the covering of the area in consequence
of the wear and tear occasioned by public user. Ib.
5. In 1830, houses were erected on land adjoining a new road constructed at a high level
as an approach to a new bridge across the Thames. Between these houses and this road
was a space which was covered over (as a means of access to the houses) by a flagging in
which were gratings to let light and air to the lower part of the buildings, which formed
separate tenements, the entrance to which was upon the lower level at the rear.
The space
so covered had become, by dedication prior to the General Highway Act, 5 & 6 W. 4, c. 50,
a part of the public footway, and was used as such by the public. In 1862, in conse-
quence of a large number of persons congregating upon the spot, the flagging and grat-
ing in front of one of the houses (having become weakened by user) gave way, and se-
veral persons were precipitated into the area below (a depth of about thirty feet), and one
of them was killed :-Held,-in an action by the widow of the deceased, under Lord Camp-
bell's Act, 9 & 10 Vict. c. 93,-that, there being under the circumstances no legal liability
on the lessee of the houses to keep the surface of this way in repair, the action was not
maintainable, the gulph at the side of the causeway being the result of the road being
raised by the makers of it, not by the land at the side being excavated by the proprietors
of it: and that the artificial character of the flagging and grating did not make it more or
less a way to be repaired by the parish. Ib.
6. A landlord who lets a house in a dangerous state, is not liable to the tenant's cus-
tomers or guests for accidents happening in consequence during the term. Ib.
OBITUARY,-See MEMORANDA.
OFFICIAL ASSIGNEE.
Liability of, for contribution to costs of an action.-See BANERUpt, 3.
PAPER-BOOKS.
Delivery of,-See PRACTICE, 2.
PARTICULAR CHARGES,-See INSURANCE, 3.
PARTNERSHIP..
What constitutes.
A., B., and C., agreed that each should furnish 30002, worth of goods, to be shipped on a
join adventure, the profits to be divided according to the amount of their several ship-
ments:-Held, that this did not constitute a partnership between the three, so as to make
PARTNERSHIP.
What constitutes (continued).
B. and C. responsible for goods bought by A. to furnish his quota of the cargo. Heap v.
Dobson, 460.
The right of a patron to present to a benefice is a legal right, subject in its exercise
to the bishop's right to examine into the fitness of the presentee, and to reject him for suffi-
cient ground. Bishop of Exeter v. Marshall (H. of L.), 857.]
Power of sale, on default,-See CONVERSION.
POWER OF SALE,-See CONVERSION.
PRACTICE.
Pleading several matters.
1. A., assuming to be the owner of land over which eight other persons claimed rigb's
of common, enclosed it. In order to assert their claim, the eight signed a document pa-
fessing to authorize each other, and B. and C. as agents for all and each of them, to enter
upon the land and remove the fences, which B. & C. accordingly did. Separate actions
having been brought against the eight for this trespass,-each was allowed to plead sev
eral pleas justifying under the titles of the other seven, as well as under his own title.
Church v. Wright, 750.
2. The only proper place for the delivery of paper-books, is, the judges' Chambers, !!
Serjeants' Inn. Howells, app., Wynne, resp., 11.
Discovery and inspection of documents.
3. An application for a discovery of documents under the 50th section of the Common
Law Procedure Act, 1854 (17 & 18 Vict. c. 125), must be made upon the affidavit of the
party to the cause. Christopherson v. Lotinga, 809.
4. Herschfeld v. Clarke, 11 Exch. 712, confirmed. Ib.
5. Upon a motion for an inspection of the plaintiffs' books, which the defendant al-
leged to be necessary for the purpose of establishing a set-off in respect of commission
which he claimed on sales effected by the plaintiffs through his introduction,-The court
granted the rule, although the plaintiffs swore that there was no agreement to allow the
defendant any commission: but held that the plaintiffs were entitled to seal up all those
parts of the books which they pledged their oath that the defendant had no interest in.
Bull v. Clarke, 851.
Interrogatories under 17 & 18 Vict. c. 125, s. 51.
6. It is no objection to interrogatories under the 51st section of the Common Law
Procedure Act, 1854, that the answers, if given in the affirmative, will show that the exe-
cution of a deed upon which the defence is founded was obtained by fraud. Goodman v.
Holroyd, 839.
7. The defendant's goods having been taken under a fi. fa. after the debt and costs had
been paid by another party liable upon the same instrument, he applied to a judge to set
aside the execution. The judge made the order, but imposed as a term that the defendant
should bring no action. Having availed himself of the order so as to get the sheriff to with-
draw from possession,-Held, that the defendant could not afterwards move to set aside so
much of it as restrained him from bringing an action. Wilcox v. Odden, 837.
At Chambers.
8. Affidavit.]-Upon a motion for costs under the 15 & 16 Vict. c. 54, s. 4, after an un-
successful application to a judge at Chambers, the plaintiff must bring before the court
all relevant materials which were used before the judge. Bennett v. Benham, 616.
PRINCIPAL AND AGENT.
Agent's right to commission.
A., a clerical agent, was employed to sell an advowson for B. upon the terms contained
in a circular in which it was stipulated that the commission should become payable upon
the adjustment of terms between the contracting parties in every instance in which any
information had been arrived at, or any particulars had been given by, or any communi-
cation whatsoever had been made from A.'s office, however and by whomsoever the nego
tiation might have been conducted, and notwithstanding the business might have been
subsequently taken off the books, or the negotiation might have been concluded in conse
PRINCIPAL AND AGENT.
Agent's right to commission (continued).
quence of communications previously made from other agencies, or ou information other-
wise derived, or the principals might have made themselves liable to pay commission to
other agents; and that no accommodation that might be afforded as to time of payment or
advance should retard the payment of commission. A contract of sale having been ar-
ranged through A.'s agency, and duly executed, and a deposit paid on the 14th of Octo-
ber, 1862, the residue of the purchase-money being payable on the 31st of December,-
Held, that A. was entitled to his commission at all events on the 31st of December, al-
though the full purchase-money had not, for some unexplained reason, then been paid.
Lara v. Hill, 45.
PRINCIPAL AND SURETY.
Liability of surety.
1. The defendant executed a bond as surety to an insurance company for the fidelity of
A., who was appointed an agent of the company at Adelaide, and who was about to and
afterwards did enter into partnership (as merchants) with B., also an agent of the company
at that place. The condition of the bond was, that, if A., his heirs, executors, &c., should
well and truly pay and account for all moneys received by him, the obligation should be
void :-Held, that the defendant was not responsible under this bond for moneys received by
the firm of A. & B., notwithstanding he was aware at the time he signed the bond that A.
was about to become partner with B. Montefiore v. Lloyd, 203.
2. Held, also, that the surrounding or "co-existing" circumstances were admissible for
the purpose of explaining what might be ambiguous in the condition. Ib.
PRIVILEGED COMMUNICATION,-See LIBEL. SLANDER.
PROFIT A PRENDRE.
What amounts to a grant of.
A. agreed with B., that B. might dig and carry away cinders from a certain cinder-tip,
the property of A., B. paying A. a certain price per ton :-Held, that this agreement need
not be by deed. Smart v. Jones, 717.
PROMOTIONS,-See MEMORANDA.
PROVIDENT SOCIETY,-See FRIENDLY SOCIETY, 1.
PUBLIC COMPANY,-See JOINT-STOCK COMPANY. RAILWAY COMPANY.
PUBLIC HEALTH ACT,-See LOCAL GOVERNMENT ACT, 1858.
[QUARE IMPEDIT.
1. In quare impedit, upon a rejection of the patron's presentee, the bishop's plea must
state not only that the presentee is not a fit person, but also in what respect he is not fit,
and state it in such a manner as will enable the patron to take issue on the objection, and
a proper tribunal to judge of its soundness. Bishop of Exeter v. Marshall (H. of L.), 857.
2. An allegation in the plea that the bishop had good reason to believe that the pre-
sentee had been guilty of an attempt to commit simony is not sufficient:-Semble, that a
plea alleging presentation by the bishop as on a lapse must allege notice to the patron
of the circumstances under which the bishop would so claim to present. Ib.]
QUEEN'S PRISON ACT.
Judgment of the Common Pleas in Gore v. Grey, 13 C. B. N. S. 138, affirmed. Gore v.
Grey, 567.
RAILWAY COMPANY.
Conditions on which goods carried by.
1. Any condition limiting the liability of a railway company as carriers must be a
condition just and reasonable in the judgment of the court, and must be set out in a writ-
ten (or printed) contract signed by or on behalf of the consignor of the goods. Aldridge
v. The Great Western Railway Company, 582.
2. Certain packages called "empties" were delivered to a railway company to be car-
ried to a place beyond their line, the person by whom they were delivered signing on
the consignor's behalf a printed note containing the following among other conditions:-
"1. The company will not be answerable for the loss or detention of, or damage to, wrap-
pers or packages of any description charged by the company as empties.' 2. Nor in
respect of goods destined for places beyond the limits of the company's railway; and, as
respects the company, their responsibility will cease when such goods shall have been
delivered over to another carrier in the usual course for further conveyance. Any money
C. B. N. S., VOL. XV.-35
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