Reports of Cases Argued and Determined in the English Courts of Common Law, [1845-1856]

MEMORANDA.

In the last Hilary Vacation, the Right Hon. THOMAS Lord DENMAN resigned the office of Lord Chief Justice of the Court of Queen's Bencn.

He was succeeded by the Right Hon. JOHN Lord CAMPBELL, who took his seat in Court on the first day of Easter Term, having first been called to the degree of Serjeant-at-Law, when he gave rings with the motto "Justitiæ tenax."

In Easter Term last, the following gentlemen were appointed Her Majesty's Counsel learned in the Law:

Michael Pendergast, of Lincoln's Inn, Esq.
Henry Bliss, of the Inner Temple, Esq.

Charles Sprengel Greaves, of Lincoln's Inn, Esq.
William Charles Townsend, of Lincoln's Inn, Esq.
Christopher Argyle Hoggins, of the Middle Temple, Esq.
William Carpenter Rowe, of the Inner Temple, Esq.
Thomas Colpitts Granger, of the Inner Temple, Esq.
Peter Frederic O'Malley, of the Middle Temple, Esq.
Barnes Peacock, of the Inner Temple, Esq.
Edwin James, of the Inner Temple, Esq.
Kenneth Macauley, of the Inner Temple, Esq.

INDEX

ΤΟ

THE PRINCIPAL MATTERS.

ACCIDENTAL DEATH.
Liability of Owner of Land for not fencing off
an Excavation.

1. A., being possessed of land abutting on a
public footway, in the course of building a
house on such land, excavated an area, which,
by the negligence of his work people, was left
unfenced, so that B., who was lawfully passing
along the way, the night being dark, without
any negligence or default of her own, fell into
the area, and was killed:-Held, that A. was
liable, under the 9 & 10 Vict. c. 93, to an
action by the husband, as administrator, for
the benefit of himself and B.'s infant child-
ren. Barnes v. Ward,

392
2. The declaration alleged that the defendant
was possessed of a messuage, with the appur-
tenances, near to a common and public foot-
way, and that, in front of and before the said
messuage, and parcel of the appurtenances
thereof, and close to, and by the side of, the
said footway, and abutting upon, and opening
into the same, there then was a large hole,
vault, or area, which hole, vault, or area,
the defendant, by reason of the possession of
the said messuage, with the appurtenances,
before and at the time when, &c., ought to
have so sufficiently guarded and fenced as to
prevent injury to persons lawfully passing in
and along the said footway:-Held, that the
duty of the defendant to fence the area was
properly alleged.

Ib.

3. Held also, that the judge at the trial was
justified in amending the declaration, by
adding the words in italics.
Ib.

Enrolment and Sufficiency of Memorial.

141

1. Where the consideration for an annuity is a
pre-existing debt, no memorial need be en-
229
rolled. Doe d. Church v. Pontifex,
2. The consideration for an annuity was stated
in the memorial thus:-"3000., part of a
sum of 31861. 28. 3d., due and owing from
[the grantor] to [the grantees] at the time of
granting the said annuity, as follows,-18821.
38. 6d. for work and labour and for goods sold
and delivered, and 13037. 188. 9d. for money
lent and advanced, and interest thereon, in
the sums and at the times following,-that is
to say, 2501. paid by the check of the [grant-
ees] on, and dated, the 29th of December,
1837, and drawn in the then name of their
trading firm, on Messrs. Smith, Payne &
Smith, their bankers,-5001. paid by a like
check, dated the 24th of February, 1838,-
231. 108. paid by a like check, dated the 28th of
February, 1838,-2701. paid by a like check,
dated the 25th of July, 1838,-2001. paid by
a like check, dated the 11th of January, 1839,
-interest on the above sums respectively up
to the 27th of April, 1839 (the date of the
grant), 607. 88. 9d. :"-Held, that, supposing
a memorial to be necessary, the above suffi-
ciently showed how and when the several
sums which constituted the consideration for
the annuity were paid.

And see BANKRUPT, II.

APPRENTICESHIP.

Indenture of,-See PLEADING, III.

ARBITRAMENT.

Ib.

Order for Payment of Money awarded, under
the 1 & 2 Vict. c. 110, s. 18.

1. The court will not make an order for pay-
ment of money directed by an award to be
paid, so as to enable the party entitled to re-
ceive it to avail himself of the 1 & 2 Vict. c.
110, s. 18, except where the case is clear and
Mackenzie v. The Sligo and
free from doubt.
250
Shannon Railway Company,
2. An action against a railway company was
referred to arbitration. The arbitrator made
his award on the 28th of April, 1849-direct-
ing the company to pay to the plaintiff a cer-

tain sum, by four instalments, on the 12th of June and 26th of November, 1849, and the 26th of February and 26th of May, 1850. On the 4th of May, 1849, the Vice-Chancellor made an absolute order for the dissolution and winding up of the company, under the 11 & 12 Vict. c. 45, and an official manager was duly appointed. On the 1st of August, 1849, the 12 & 13 Vict. c. 108, passed, declaring that the former act should not apply to Under these circumrailway companies. stances, the court refused to make an order upon the company (upon a service and demand upon the secretary and one of the directors), to pay the instalments which had become payable on the 12th of June and 26th of November, 1849, considering the matter to be too doubtful to be disposed of on a sumIb. mary application, Quare, whether an attachment, or an order, can be obtained on non-payment of an installb. 4. Attachment does not lie against a corporation (e. g. an incorporated railway company) for non-performance of an award.

ment.

ARREST OF JUDGMENT.
Motion in.

Ib.

Where on motion in arrest of judgment a clear
objection is not shown, the party will be left
Blacketer v. Gillet, 26
to his writ of error.
And see PLEADING, I.

ASSIGNMENT OF ERRORS.

See OUTLAWRY.

ASSURANCE.

See INSURANCE.

ATTACHMENT.
See ARBITRAMENT,
SHERIFF, 2.

ATTORNEY.

I. Changing Name on the Roll.

1. The Court of Queen's Bench having allowed an attorney to alter his name on the roll, this court (for the sake of uniformity) allowed it. 218 Ex parte Daggett,

The court permitted an attorney who had been admitted in the Courts of Queen's Bench and Exchequer by the name of "Thomas James Moses," to sign the roll of attorneys of this court (under the 6 & 7 Vict. c. 73, s. 27) by the name of "Thomas James," on the production of his admission in the Queen's Bench-upon an affidavit showing the circumstances under which he had changed his name, and also showing that the Courts of

1. Where money is paid by A. to B. to be applied by the latter pursuant to a binding contract between the parties, A. cannot revoke its destination. Yates v. Hoppe, 541 2. A., the drawer of an accommodation bill, a few days before its maturity, handed over money to B., the acceptor, for the purpose of meeting the bill. A fiat having been issued against A. between the day of such deposit and the maturity and payment of the bill:Held, that, the money having been handed over to B., in pursuance of a binding contract, upon a good consideration, viz., an implied contract of indemnity, the bankruptcy of B. was no revocation of A.'s authority to apply the money in satisfaction of the bill; and consequently that B.'s assignees could not recover it back from him in an action for money had and received to their use.

II. Proof of Debts.

lb.

alone, in the meantime and until any real or personal estate should devolve upon or vest in A. and B., in B.'s right, or any issue of the marriage, under the settlement of her father and mother, or otherwise, or together with the annual produce to arise from any such real or personal estate after any such devolution or vesting should take place, make up an annuity of 150%., payable halfyearly. The marriage took place. No real or personal estate had devolved upon or become vested in A. and B. in right of the latter, or in any issue of them. On the 24th of October, 1842, a fiat issued against C., under which he was declared bankrupt, and under which he obtained his certificate on the 6th of March, 1843. The trustees proved against C.'s estate, on the 25th of March, 1843, for 105., being partly for arrears due at the time of the bankruptcy, and partly for a proportionate part of the current half-year, up to the time of tendering the proof. They at the same time tendered a proof for the value of the annuity as a contingent debt, but such proof was rejected, on the ground that the contingencies were such that the value of the annuity could not be ascertained. The instalments of the annuity accruing after the date of the said proof, down to the 21st of September, 1848, amounted to 8237. 168. 8d.; on account of which C. had, since his bankruptcy, made payments amounting to 1207. In February, 1849, the trustees petitioned, praying to be admitted as creditors for the remaining 7037. 168. 8d., and to receive dividends thereon, not disturbing former dividends:-Held, that the trustees were not entitled to prove against the estate of C. in respect of such subsequent instalments. In re John Foster, 422

III. Arrangement under 7 & 8 Vict. c. 70, s. 13. 1. Form of Certificate.]—A certificate under the Debtors' Arrangement Act (7 & 8 Vict. c. 70, s. 13), must certify the filing of the petition, and not merely that a resolution or agreement was duly assented to, and approved and filed by the commissioner. Temple v. Sleigh,

348

Confirmation.]—Quære, whether a certificate under this act requires confirmation,―or whether a plea setting up such a certificate need show that the debt is not of the excepted classes mentioned in s. 2? 16.

Instalments of an Annuity.]-By a settlement made on the 13th of July, 1841, in contemplation of a marriage between A. and B., C. IV. Deed of Arrangement under 12 & 13 Vict.

covenanted to pay to the trustees, so long as A. and B., or either of them, or any issue of the said intended marriage, should be living, an annuity of such an amount as would, either

c. 106.

1. The 225th section of the 12 & 13 Vict. c. 106, enacts, "that no such deed or memorandum of arrangement (as mentioned in s.

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