WITNESS (a). Defence to an Action for not attending in pursuance of a Subpoena, that the Testimony of the Defendant was not Material. The testimony of the defendant was not necessary or material on behalf of the plaintiff on the trial of the said action [or, of any of the said issues]. (a) See "Witness," ante, p. 542. The defence that the evidence of the defendant was not material on the trial of the former action must be expressly pleaded. (See Needham v. Fraser, 1 C. B. 815; Mullett v. Hunt, 1 C. & M. 752, 764.) It is a good defence that a reasonable sum was not paid or tendered to the defendant for his expenses as a witness. (See Betteley v. M'Leod, 3 Bing. N. C. 405.) INDEX. NOTE.-The references to Forms are printed in italics. ABANDONMENT, of ship insured, notice of, 240. of ancient lights, 453. ABATEMENT, pleas in, abolished, 28, 546. actions not now abated by marriage, death, bankruptcy, &c., of abatement of nuisances, 934. ACCEPTANCE. See BILLS OF EXCHANGE; SALE OF GOODS. ACCIDENT, insurance against accidents, 247. claims by executors for accidental death caused by negligence, 426. And see ALTERATION; CARRIERS. ACCOMMODATION BILL, claim by the acceptor of an accommodation bill on the contract to defence stating that a bill or note was given for accommodation, 644, And see BILLS OF EXCHANGE; INDEMNITIES. ACCORD AND SATISFACTION, defence of accord and satisfaction by the delivery of goods, 605. the like, by work done, 608. the like, by substituted agreement, 609. the like, by giving a bill of exchange, 609. the like, by indorsing to the plaintiff a promissory note, 610. the like, by payment of a smaller sum by a third party, 610. defence of an agreement between the plaintiff, the defendant, and a third defence of accord and satisfaction by a composition made by a debtor with reply thereto that the deed or instrument was not registered, 685. what amounts to an accord and satisfaction, 605. payment of smaller sum in discharge of larger debt; some new giving negotiable instrument, &c., 606. L.B. 3 U ACCORD AND SATISFACTION-continued. mere accord is no defence, 606. accord and satisfaction by third party, adopted by defendant, 607. equity rule where such creditor acts in fraud of partners, 607. effect of accord and satisfaction as to contracts by specialty, 608. effect of accord and satisfaction, where further damage accrues accord and satisfaction procured by fraud, 608, 859. bills or notes given "in accord and satisfaction,' or "for and on accord and satisfaction by way of novation of a debt, 610. by a stranger, 859. a fresh cause of action not barred by satisfaction given for pre- accord and satisfaction by inserting apology in newspaper, 859. ACCOUNT, action of, at common law and by statute, 84. references to former pleadings in actions of account, 611. actions for taking accounts, assignment of, to the Chancery Divi- jurisdiction of Queen's Bench Division to order account, 84. exception of merchants' accounts from Statute of Limitations ACCOUNTS STATED, claim on accounts stated, 85. defence denying the statement of the accounts, 612. defence alleging that the amount found to be due on the accounts stated account stated; what mode of pleading, 85, 87. if merely relied on as evidence of other causes of action, not to be statement of account as to part of a larger debt claimed, 85. account stated by mistake; for debt without consideration; for how made; by writing, as by bill or note or I O U, or by oral must be before action, and of sum certain, 86, 87. to whom and by whom made, 87. account stated of future debt; of debt payable by instalments, or effect of an acknowledgment under seal, 87. defences applicable to claims on accounts stated, 612. ACKNOWLEDGMENT, 773. See LIMITATION, STATUTES OF. ACQUIESCENCE, 902, 909. See INJUNCTION; LACHES; LEAVE AND ACT OF GOD, 171. See CARRIERS. ACTION, the old forms of action abolished, 3. action on the case, what it included, 767, 919. actions upon contracts and actions for wrongs, 2. assignment of certain actions to particular Divisions of the High transfer of actions from one Division to another, 6: see COMPANY. local and transitory actions before the Judicature Acts, 66. present rules as to place of trial, 66–69: see VENUE. joinder of causes of action, 57. parties to actions, 19: see PARTIES TO ACTIONS. ACTION, NOTICE OF, 932. See NOTICE OF ACTION. ACTION PENDING, for same cause; application to stay proceedings, 546. ADMINISTRATOR. See EXECUTORS. ADMISSION, implied, of allegations not denied specifically, or by necessary infants and lunatics, &c. not within the rule, 547, 735, 737. admission by pleading in confession and avoidance, 552. express admissions in the pleadings: see ADMISSIONS IN PLEADINGS. ADMISSIONS IN PLEADINGS, defence containing admission of fact, 612. defence admitting some facts and denying other facts, 858. express admissions, 552, 562, 612, 858. implied admissions: see ADMISSION. AGENT, statements of claim: by an agent for remuneration for work done, &c., 87. by a house agent for commission, 88. by a share broker for commission, 166. by an agent against his employer for breach of agreement to accept a against an agent employed to sell goods, for not accounting or paying against an agent, for not using due care and diligence in collecting against an agent employed to purchase goods, for negligently disregard- against a del credere agent on his guarantee of the price of goods sold for breach of an implied warranty of authority to contract with the against an agent, to recover the amount of a secret commission received AGENT-continued. denial of agency, 613. denial of the alleged terms of employment, 613. defence to an action for commission, denying the alleged services, 613. defence to an action on a verbal agreement, that the defendant contracted denial of receipt of an alleged secret commission, 615. denial that the alleged commission was received corruptly, secretly or denial of an alleged warranty of authority to contract as agent, 615. defence to an action for the price of goods sold, alleging that they were contracts by agents; liability of principal, 87, 614. agent, when personally liable; signing contract in his own name gratuitous agent, liable for misfeasance, 88. revocation of agency, 88, 89. house agents, &c., when entitled to commission, 88. actions against agents for money received, or for account, 90, 95. del credere agency, 91, 92. implied warranty of authority by contracting as agent, 92. damages for breach thereof, 92, 93. suing principal and agent in the alternative, 93. principal's rights, where secret profits, douceurs, &c., received by mistake in written contract, 614. undisclosed principal; election to charge principal or agent, 614. And see MASTER AND SERVANT. AGISTMENT, claim for the agistment of horses and cattle, 95. for the keep of horses, 96. for the use of pasture, 96. duties and liabilities of an agister of cattle, 95. agisted cattle, in what cases privileged from distress, 417. AGREEMENTS, concise form of statement of claim for damages for breach of an agree- statement of claim for damages for breach of an agreement not under claim for a debt due under a covenant in a deed, 98. concise form of claim for damages for breach of covenant, 98. defence denying the making of an agreement not under seal, 616. defence denying the agreement, and alleging that it was subject to a |