Superior Courts: Queen's Bench.-Q.B. P. Court.-Common Pleas.-Exchequer. 235 Jan. 12, 13.-Moffatt v. Dickson, clerk-Cur. pursued, and to which she was driven by stress Jan. 11.--Regina v. Vestry of St. PancrasLeave to deliver to Judges written copy-order of Poor Law Board, where order out of print. 12.-Tallis v. Tallis-Judgment for the plaintiff on demurrer to plea. 12.-Mayor of Berwick v. Oswald-Judgment for plaintiff. 12.-Regina v. Wilson-Rule nisi to set aside side-bar rule for taxation of costs. 12.-Regina v. Barnet - Rule nisi to quash inquisition found by coroner's jury. · 12.—In re John Smith-Rule discharged on payment of costs to strike attorney off the roll. 11.-Regina v. Smith-Rule nisi for quo warranto on councillor of borough of Leeds. 11.-Regina v. Carr-Rule nisi for quo warranto on eouncillor of Oxford. 11.-Exparte Boram-Rule for habeas corpus to bring up body of infant. 17.- Regina v. Newhurst - Application refused for taxation of defendant's costs on indictment for libel, where verdict for defendant on plea of Not Guilty, and for the Crown on the plea of justification. 14.-Volaut v. Soyer and another-Rule refused for new trial. 14.-Dalton v. Midland Railway Com|pany-Rule nisi to enter verdict for defendants or for a nonsuit. 17.-Quartermain and others v. Bittleston and others-Cur. ad. vult. new 18.-Peterson v. Eyre-Rule absolute for trial. 18.-Duncan v. Tindal-Stand over. Court of Exchequer. Price v. Hewitt. Jan. 12, 1853. RULE FOR LEAVE TO PLEAD AND DEMUR. Rule absolute for leave to the defendant to THIS was a rule nisi on the defendant to be at liberty to plead and demur to the declaration under the 15 & 16 Vict. c. 76, s. 80. It appeared that the proposed plea traversed an averment in the declaration, but the affidavit in support did not allege the traverse was true. Petersdorff showed cause against the rule. The Court held, that it was only necessary to swear to the truth of the matters pleaded where they were pleaded by way of confession and avoidance, and not where the plea merely traversed an averment in the declaration, and the rule was therefore made absolute. Jan. 11, 12.-Morgan v. Clifton, Bart.Arrangement come to. 13.-Waters v. Towers-Rule absolute to increase verdict. Which enacts, that "either party may, by leave of the Court or a Judge, plead and demur to the same pleading at the same time, upon an affidavit by such party, or his attorney, if required by the Court or Judge, to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several matters sought to be pleaded as aforesaid by way of confession and avoidance are respectively true in substance and in fact, and that he is further advised and believes that the objections raised by such deJan. 11.-Mitchell and wife v. Crassweller-murrer are good and valid objections in law, Rule nisi to enter verdict for plaintiffs. 18.-In re Boram-Cur. ad. vult. Court of Common Pleas. and it shall be in the discretion of the Court 11.-Evans v. Edmonds-Rule nisi for or a Judge to direct which issue shall be first 236 Superior Courts: Exchequer.-Analytical Digest of Cases: Bills of Exchange. Jan. 14.-Anderson and others v. Thornton- Jan. 15.-Simmons v. Lillington-Rule nisi Rule nisi for new trial on the ground of verdict to enter verdict for defendant on leave rebeing against evidence and of misdirection-served. Cur. ad. vult. - 18.-Hills v. Nutson-Cur. ad. cult. 15.-Waterford, Wexford, Wicklow, and Dublin Railway Company v. Peacock-Rule re- other—Part heard. fused to set aside nonsuit. ANALYTICAL DIGEST OF CASES, BILLS OF EXCHANGE. 1. Indorsee against acceptor.-Plea issuable. -In assumpsit by indorsee against acceptor of a bill of exchange, the defendant-being under terms-pleaded, to the further maintenance of the action, that he was indebted to the drawer in a sum less than the amount of the bill; that, before the acceptance, it was agreed between him and the drawer, that he should pay him such lesser sum by four instalments; that he duly paid three of such instalments before, and the fourth after, the commencement of the action; and that the bill was indorsed to the plaintiff without value or consideration: Held, not an issuable plea. Besant v. Cross, 10 C. B. 895. 2. Parol contract inconsistent with. It is not competent to the acceptor of a bill of exchange to set up a parol contract inconsistent with the contract upon the face of the bill. Besant v. Cross, 10 C. B. 895. Ayloffe v. Skrimpshire, Carth. 65; Comberbach, 124; Gibbons v. Vouillon, 8 C. B. 483; Fowell v. Forrest, 2 Saund. 48; Stracey v. Bank of England, 6 Bingh. 754; 4 M. & P. 639; Ford v. Beech, 11 Q. B. 852; Overton v. Harvey, 9 C. B. 324; Griffith v. Owen, 13 M. & W. 58, 61; James v. Williams, 13 M. & W. 828, 833; Davis v. Gyde, 2 A. & E. 623; Worthington v. Wigley, 3 New Ca. 454; 4 Scott. 558; Jones v. Broadhurst, 9 C. B. 173. 4. Denial of authority to draw or indorse. -The acceptor of a bill of exchange, payable to the order of the drawer, cannot deny the authority of the drawer to draw or indorse such bill. Therefore, to an action on a bill of exchange drawn by A. B. & Co., and payable to their order twelve months after date, and accepted by the defendant, and indorsed by A. B. & Co. to the plaintiff's, a plea, that A. B. & Co., before, and at, and since the time of the making and indorsing the said bill, were and 3. Plea of conditional payment by a stranger tain letters patent; and that the bill purported have been a body corporate, by virtue of cer giving the plaintiff his acceptance for the debt, the in the hands of an indorsee. To debt on simple and not otherwise; and that the said body bill so given being at the time of suit outstanding to be, and was drawn by the said body corporate, and as such accepted by the defendant, contract for goods sold and delivered, work and labour, &c., the defendant pleaded, corporate as to 337. 10s., parcel of the debt in the declaration mentioned, and the cause of action in respect thereof," that, after the accruing of the causes of action in the declaration mentioned, and before the commencement of the suit, the plaintiff drew a bill on C. for 33l. 10s., payable to the plaintiff's order three months after date; that C. accepted the bill, and delivered it to the plaintiff, and the plaintiff received it, for and on account of the said sum of 337. 10s., parcel of the debt in the declaration mentioned, and the causes of action in respect thereof; and that the plaintiff indorsed and delivered the bill to one D., who was, before and at the time of the commencement of the suit, the holder of the bill, and entitled to sue C. thereon. had not at any time any authority to indorse, issue, or negociate any bill of exchange, or to transfer the right to receive pay ment thereof by indorsement, in the name of the said company, or otherwise; was held bad on demurrer. Hallifax v. Lyle, 3 Exch. R. 446. Cases cited: Drayton v. Dale, 2 B. & C. 293; Delivery of bill. Cause of action.-A bill of exchange was drawn and accepted, and the indorser put his name upon it, within the city of London, but it was delivered to the indorsee in the county of Middlesex: Held, that the cause of action did not arise within the city of London. Buckley v. Hann, 5 Exch. R. 43. 6. Delivery of.-Pleading.—Admission.—To Held, that the giving of the bill by C. must an action upon certain bills of exchange, drawn be taken to be a conditional payment on behalf by M. & Sons upon, and accepted by the de of the defendant; that the condition to defeat fendant, and payable to the plaintiff at certain it not having happened, it operated as an abso- periods after date, the defendant pleaded that, lute payment; and that it might be, and had after the bills became due, M. & Sons made an been, adopted by the defendant in his plea, and consequently that it barred the action. Bel-on receiving 2s. 9d. in the pound upon, inter agreement with the acceptor to discharge him shaw v. Bush, 11 C. B. 191. Cases cited in the judgment: Wankford v. Wankford, 1 Salk. 299; Freakly v. Fox, 9 B & C. 130; Harmer v. Steele, 4 Exch. R. 1; alia, the said acceptance, in consideration of the payment of a certain specified sum in settlement of their differences of account, and that the plaintiff took the bills after the agreement. Analytical Digest of Cases: Bills of Exchange.-Promissory Notes. The plea contained averments, that M. & Sons were the holders of the bills at the time the agreement was made, and that they afterwards delivered them to the plaintiff. The replication traversed the former of these allegations: Held, that although the replication admitted a delivery of the bill by M. & Sons to the plaintiff after the making of the agreement, that it did not admit such a delivery as to give the plaintiff a new title to the bills, and, consequently, the replication was good as putting in issue a substantial averment in the plea. Corlett v. Booker, 5 Exch. R. 197. 7. Bill of exchange, when complete.· - Acceptance, place of-The acceptance of a bill, though revocable at any time before delivery, is, if unrevoked, complete as soon as written on the bill; and the contract is made in that place where the bill is accepted, not where it is issued. Regina v. Birch, in re Wilde v. Sheridan, 1 L. & M. 56. Cases cited in the judgment: Roff v. Miller, 19 terest. 474. PROMISSORY NOTES. 66 237 the trusts of the said will; which they" had "agreed to do upon " the grandsons executing the indenture, "in order to indemnify" the plaintiffs against any loss or diminution that" might "happen to the said trust estate and moneys, or the interest or income thereof, by the failure of the said securities;" and there was a covenant by the grandsons, in consideration of the premises, to indemnify the plaintiffs accordingly; and a further covenant by the two other grandsons, that E., who was then a minor, should execute the indenture on attaining his majority. The security referred to, as set forth in the schedule, consisted of the promissory note in the declaration, and other notes payable also on demand, with interest. The plaintiffs were present at the execution of the deed, assented to it, and acted upon it. A verdict was found for the defendant. Held, by the Court of Queen's Bench, that the plaintiffs were bound by the indenture, the meaning of which was, that the securities mentioned in the schedule should remain outstanding until E. attained 25; and that the plea was proved. Held, by the Court of Exchequer Chamber, on error, that the agreement in the indenture 1. Contemporaneous agreement between plain-was collateral to the agreement in the declaratiff and defendant.-Assumpsit on a promissory tion, because, though stated to be contemponote made payable by defendant to the plain- raneous, it was not stated to be parcel of it, tiffs, as executors of S., on demand, with in- and was not between the same parties; that, as a collateral agreement, it was invalid for want of consideration, and was no defence, being, at most, a covenant not to sue for a limited time, and also a covenant with other covenantees than the defendant alone; and that the plea was bad, and the plaintiffs entitled to judgment, notwithstanding the verdict. Webb v. Spicer, 13 Q. B. 886, 894; Same v. Salmon, ib. Case cited in the judgment: Ford v. Beech, 11 Q. B. 852. Plea, that, at the same time as the making of the note, an agreement in writing was made, between the defendant and other persons and the plaintiffs, that the note should not become due and payable until one E. attained the age of 25 years; or, if he should die under that age, then upon certain moneys becoming divisible under the will of S., and that E. was still living and under 25. Issue was joined upon a replication traversing the agreement. It appeared on the trial that S., by her will, had bequeathed half of her residuary personal estate to her daughter, defendant's wife, and had directed the plaintiffs, as her executors, to place out at interest the remaining half, until the said E., one of her three grandsons, should attain the age of 25, and to divide the same, on that event, equally between her grandsons. After the death of testatrix, the plaintiffs paid over half the residue to defendant; and, E. being then under 25, the plaintiffs invested the remaining half of the residue in promissory notes payable on demand and bearing interest, one of such notes being the note mentioned in the declaration. At the time of making this note, an indenture, to which the defendant, the grandsons, and the plaintiffs were parties, was executed by all the parties thereto except the plaintiffs. The indenture, after reciting the will and death of testatrix, and the payment of half the residue to the defendant, recited that the grandsons had requested the plaintiffs to invest the remaining half of the residue upon the security set forth in the schedule to the deed, "until the same "would "be divisible under 2. Effect of security under seal given by one of two makers. If one of two makers of a joint and several promissory note gives the holder a deed of mortgage to secure the amount, with a covenant to pay it, the other maker is not thereby discharged; for the remedy on the specialty is not co-extensive with the remedy on the note. Ansell v. Baker, 15 Q. B. 20. Cases cited in the judgment: Solly v. Forbes, 2 Brod. & B. 38; Twopenny v. Young, 3 B. & C. 208, 211. 3. Payable to maker's own order, with memorandum at foot for payment at a particular place and indorsed by maker in blank.-A note payable to the order of the maker, and by him indorsed in blank, may be treated as a note payable to bearer; and that notwithstanding there is a memorandum at the foot of the note, indicating a particular place of payment. Masters v. Baretto, 8 C. B. 433. 4. Given for the debt of a third party.-Suf ficiency of consideration. In assumpsit by payee against maker, on a promissory note payable on demand, with interest, the defendant 238 Analytical Digest of Cases: Promissory Notes.-Law of Arbitration. pleaded, that the note was made by the defendant as a collateral security for a debt due from one J. S. to the plaintiff; that the defendant was not at the time of making the note, or ever, liable to pay the debt, or to give the note as a security for the same; and that there never was any other consideration for the making of the note, save as aforesaid: Held, a sufficient plea of no consideration, after verdict. Crofts v. Beale, 11 C. B. 172. 5. Personal liability of directors of jointstock company. The defendants, who were directors of a joint-stock newspaper company, gave the plaintiff the following promissory note, in part payment for the purchase of a newspaper, which the company had agreed to purchase of him :: "On demand, we jointly and severally promise to pay to Mr. L. H., or order, the sum of 250l. value received, for and on behalf of the Wesleyan Newspaper Association." Signed by the defendants," Directors:" Held, that the words "jointly and severally" were equivalent to jointly and personally; and that the defendants were therefore personally liable to the plaintiff on the note. Healey v. Story, 3 Exch. R. 3. 6. Form of.-The following document, "Nottingham, August 5, 1844. Borrowed of Mr. J. W. the sum of 2007., to account for, on behalf of the Alliance Club, at months' notice, if required,"'-was held not to be a promissory note. So also, a similar instrument, with the blank filled up with the word "two," was held not to be a promissory note. White v. North, 3 Exch. R. 689. Case cited in the judgment: Horne v. Redfearn, 4 Bing. N. C. 433. 9. Inland note.-Notice of protest unnecessary.-7 Geo. 4, c. 67.—Return to stamp office under that Statute not condition precedent to right to banking company on note. In an action by the manager of a joint-stock banking company, upon a note indorsed by the defendants to the company, the declaration stated, that one L. made his promissory note at L., in Scotland, to the order of the defendants, and delivered the said note to them, and that they indorsed it to the company; that the note was not paid, although duly presented for payment, and that it was protested for payment, whereof the defendants had notice. Pleas, 1st, that the defendants had no notice of the said note being so protested, modo et formá; and 2ndly, that the company, between the 25th of May and the 25th of July, 1847, did not deliver at the Stamp office a return in pursuance of the 7 Geo. 4, c. 67. Verification. Held, that the word "whereof." after verdict, was not confined to the allegation of protest, and that the declaration was good in arrest of judgment. Held, also, that both the pleas were bad nos obstante veredicto: the first on the ground that no protest of an inland note, which it was to be taken to be, was necessary; and the second plea, on the ground that the due making of the return mentioned in that plea was not a condition precedent to the company's right to recover upon the note. Bonar v. Mitchell, 5 Exch. R. 415. LAW OF ARBITRATION. 1. Attachment for non-performance.-Affida vits impeaching award.-Evidence.-In showing 7. Signed as "widow."-Plea of coverture. cause against a rule for attachment for non-Estoppel. In an action on a promissory performance of an award, affidavits cannot be note, to which the defendant pleads her cover-used to show that the award is impracticable, ture only, it appeared the note was signed by uncertain, or not final, nor can the award be the defendant "widow:" Held, that such re- impeached, except for defects apparent on the presentation did not bind her by way of estopface of it. In re Butler and Masters, 13 Q. B. pel. Cannam v. Farmer, 3 Exch. R. 698. 341. 2. Setting aside.-Mistake of arbitrator.Matter in difference omitted.—It is not an in variable rule that the Courts will not set aside an award on the ground that the arbitrator has, by mistake, adjudicated wrongly on a matter in difference. 8. Statute of Limitations. Payment of interest on note.-A parish vestry having resolved to borrow money for the purpose of building almshouses, the money was in 1830 advanced by the plaintiff upon the security of a promissory note payable to him, or bearer, on demand, with interest, and signed by the Where, on a question of account, both parties defendants thus:-"J. H., churchwardens; to a suit agreed before an arbitrator, that a J. E., Overseer, or others for the time being." The interest had been regularly paid by the overseers for the time being up to 1847, but the defendants had never paid the interest, or in express terms authorised the parish officers to pay it for them. The defendants having pleaded the Statute of Limitations to an action on the note,-Held, that it was a question for the jury, whether, by the form of the note, the defendants had not constituted the parish officers for the time being their agents for the payment of interest, so as to take the case out of the statute. Jones v. Hughes, 5 Exch. R. 104. given sum was due to the plaintiff on a par Cases cited in the judgment: In re Hall and 3. Covenant to refer differences.-Rule of Analytical Digest of Cases: Law of Arbitration. Court.-Enlargement of time by Judge. - A covenant by indenture, that any differences which may thereafter arise between the parties touching the matters of the indenture shall be, and they are thereby, referred to an arbitrator named, constitutes a submission which may be acted upon and made a rule of Court, under Stat. 9 & 10 Wm. 3, c. 15, when such differences arise. 66 239 sum, L. tendered a conveyance to H., and demanded the money of him; but he would not pay. The Court refused to grant an attachment against H. as for non-performance of an award under Stat. 9 & 10 Wm. 3, c. 15. Hemingway's Arbitration, 15 Q. B. 305, n. 6. What is a dispute that hinders making an award, within Stat. 6 & 7 Wm. 4, c. 71, s. 45.Who is in possession of the tithe, for the purpose of an award.-The award to be made by Tithe Commissioners under the Commutation Act, 6 & 7 Wm. 4, c. 71, is for the purpose only of settling disputes only between tithe-owner and land-owner, and not of deciding questions of title between rival claimants of tithe. Although the covenant to abide the award be expressly subjected to the proviso, so as the award be made, &c., within a given time, with power to the arbitrator to enlarge the time, but "so as " the enlargement shall not extend beyond a day named, yet if the submission can, by the agreement, be made a rule of Court, a Judge may, before the expiration of the limited period, or of such enlargement, extend the time for making the award to a day later than the last day named in the submis- Held, on return to a mandamus, that the sion. Parkes v. Smith, 15 Q. B. 297. Commissioners were not bound so to determine, 4. Covenant to refer future differences.- the difference not being one, within sect. 45, by Plea of award.-Bar.-Estoppel.-Declaration which the making of the award was hindered; in covenant stated that, on a dissolution of but that they would do rightly in awarding partnership between plaintiff, defendant and rent-charges for the tithes, including that of another, defendant, by a certain indenture, agistment, to the parties respectively in poscovenanted that he and the other party last session, leaving them to litigate the title submentioned would pay plaintiff, as the outgoing sequently, as they might do, under section 71, partner, 6,8007. by instalments; but five in- notwithstanding the award. stalments, amounting to 4,800l., parcel of the 6,800l. were made, subject to reduction in a specified ratio, if the profits which the partnership had derived from connexions of the plaintiff should fall short of a certain amount. Nonpayment of the 4,800l., as well as of the other instalments, amounting to 2,000l., was assigned as a breach. Therefore, where tithes of agistment were claimed by both rector and vicar, and the vicar called upon the Commissioners to determine such claims before making their award, Plea, as to the 4,800l. (setting out the deed on oyer), that, by a further covenant, it was agreed that, if any difference should arise touching the sums to be deducted, it should be referred to J. P., an arbitrator, to award what amount, not exceeding 4,8007., should be deducted; that such difference did arise, and thereupon plaintiff, defendant, and the other parties submitted themselves to refer, and did refer, the said difference to J. P., who awarded that 4,800l., being the whole amount of the said five instalments, should be deducted from the 6,8001.; and that defendant, before the commencement of this action, in pursuance of the said award claimed to deduct, and did deduct, the said 4,800l., "from the said five instalments," whereby the said 6,8001., before the commencement of this suit, was reduced to 2,000l., to be paid to plaintiff pursuant to the indenture. Held, on demurrer, that the matter alleged was not merely an estoppel, but that the plea was a good plea in bar. Parkes v. Smith, 15 Q. B. 297. 5. Submission, what is, within Stat. 9 & 10 Wm. 3, c. 15.-H. and L. agreed, by deed, that H. should purchase property of L., at a price to be ascertained by arbitration; the conveyance to be made on payment of the money. The agreement was made a rule of Court. The arbitrator having awarded the No statement appearing as to the receipt of agistment-tithe by any party: Held, that the Commissioners might properly consider the rector as the person in actual possession, with sect. 12 of the Statute. Regina v. Tithe Commissioners, 15 Q. B. 620. 7. Time for moving to set aside award.-Taxation of costs.-A cause and all matters in difference between the parties were referred by an order of Nisi Prius, by which a verdict was taken for the plaintiff, subject to an award,— the costs of the cause to abide the event, and the costs of the reference and award to be in the discretion of the arbitrator. The arbitrator by his award ordered that the verdict entered for the plaintiff should stand, and directed that the defendant should pay to the plaintiff the costs of the reference and award; Held, that the plaintiff was not entitled to have an allocatur for the costs, or to sign judgment, until the expiration of the proper time for moving to set aside the award. Jones v. Ives, 10 C. B. 429. Case cited in the judgment: Hobdell v. Miller, 2 Scott, N. R. 163. 8. Finality of award.-Order under 1 & 2 Vict. c. 110, s. 18, in the discretion of the Court, and grantable only where an attachment would be granted.—A cause and all matters in difference were referred to an arbitrator, who awarded as follows:-" Having heard and duly and maturely weighed and considered the several allegations, vouchers, and proofs brought before me in pursuance of the said reference, I do make and publish this my award in writing of and concerning the several premises so referred as aforesaid." He then disposed of the several issues, ar directed that the defendant |