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
parties, 30.

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.
accident, when prima facie evidence of negligence, 473, 474.
inevitable accident a defence to actions for negligence, 927.
also to actions for trespass, 930, 971 (where see Form).

And see ALTERATION; CARRIERS.

ACCOMMODATION BILL,

claim by the acceptor of an accommodation bill on the contract to
indemnify him, 232.

defence stating that a bill or note was given for accommodation, 644,
645, 656.

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
party, that the defendant should be discharged and the third party be
accepted by the plaintiff as his debtor instead, 610.

defence of accord and satisfaction by a composition made by a debtor with
his creditors, 684.

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
consideration necessary, 606.

giving negotiable instrument, &c., 606.

L.B.

3 U

ACCORD AND SATISFACTION-continued.
composition with creditors, 606.
substituted agreement, 606.

mere accord is no defence, 606.

accord and satisfaction by third party, adopted by defendant, 607.
accord and satisfaction by one of several joint-debtors, or with
one of several joint-creditors, 607.

equity rule where such creditor acts in fraud of partners, 607.
accord and satisfaction must be after breach, 608.

effect of accord and satisfaction as to contracts by specialty, 608.
equitable doctrines as to parol release, &c.; effect of the Judica-
ture Acts, 608.

effect of accord and satisfaction, where further damage accrues
subsequently, 608, 859.

accord and satisfaction procured by fraud, 608, 859.

bills or notes given "in accord and satisfaction,' or "for and on
account of a debt, 609.

accord and satisfaction by way of novation of a debt, 610.
effect of satisfaction by a joint tort-feasor, 859.

by a stranger, 859.

a fresh cause of action not barred by satisfaction given for pre-
vious damage, 859.

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-
sion, 84.

jurisdiction of Queen's Bench Division to order account, 84.
claims for an account in various cases, 84.

exception of merchants' accounts from Statute of Limitations
abolished, 767.

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
was a smaller sum than that claimed, 612.

account stated; what mode of pleading, 85, 87.

if merely relied on as evidence of other causes of action, not to be
pleaded, 85.

statement of account as to part of a larger debt claimed, 85.
as to cross demands, 86, 606, 797.

account stated by mistake; for debt without consideration; for
illegal debt; for debt within the Statute of Frauds, or the Sta-
tutes of Limitation, 86.

how made; by writing, as by bill or note or I O U, or by oral
statement, 86.

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
upon a contingency, 87.

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
LICENCE,

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.
actions partaking of both characters, 3.

assignment of certain actions to particular Divisions of the High
Court, 6: see ACCOUNT.

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.
discontinuance of actions, 690.

ACTION, NOTICE OF, 932. See NOTICE OF ACTION.

ACTION PENDING,

for same cause; application to stay proceedings, 546.
And see CROSS-ACTION.

ADMINISTRATOR. See EXECUTORS.

ADMISSION,

implied, of allegations not denied specifically, or by necessary
implication, or stated to be not admitted, 547, 549, 551, 552.
exception of allegations as to damages, 549, 856.

infants and lunatics, &c. not within the rule, 547, 735, 737.
the rule not applicable where joinder of issue implied under
O. XXVII. r. 13..563.

admission by pleading in confession and avoidance, 552.

express admissions in the pleadings: see ADMISSIONS IN PLEADINGS.
application for judgment on admissions, 552.

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
draft for the price of goods bought under the employment, 89.

against an agent employed to sell goods, for not accounting or paying
over, 90.

against an agent, for not using due care and diligence in collecting
moneys, 90.

against an agent employed to purchase goods, for negligently disregard-
ing his instructions, 91.

against a del credere agent on his guarantee of the price of goods sold
by him, 91.

for breach of an implied warranty of authority to contract with the
plaintiff, 92.

against an agent, to recover the amount of a secret commission received
by him from persons dealing with his employer, 94.

AGENT-continued.
defences:

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 against an agent for not accounting, that the plain-
tiff never requested the defendant to account, 613.

defence to an action on a verbal agreement, that the defendant contracted
solely as agent for a disclosed principal, 613,

denial of receipt of an alleged secret commission, 615.

denial that the alleged commission was received corruptly, secretly or
improperly, 615.

denial of an alleged warranty of authority to contract as agent, 615.
denial of the alleged breach of warranty of authority, 615.

defence to an action for the price of goods sold, alleging that they were
sold by the plaintiff's agent as apparent principal, and claiming to
set off a debt due from the agent to the defendant, 834.

contracts by agents; liability of principal, 87, 614.

agent, when personally liable; signing contract in his own name
as principal; usage of trade, or market; foreign principal, 87,
88, 614.

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.
agency for purchase of goods on commission, 91.

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
agent, 94.

mistake in written contract, 614.

undisclosed principal; election to charge principal or agent, 614.
when set-off against agent is pleadable in action by principal, 834.
pledges, &c. by agents in possession of goods; effect of Factors
Act, 913.

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-
ment not under seal, 96.

statement of claim for damages for breach of an agreement not under
seal, setting out the agreement more fully, 97.

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.
a like form, 617.

defence denying the agreement, and alleging that it was subject to a
formal contract being drawn and approved by the solicitors, 818.
denial of the making of the agreement alleged, with a statement of the
agreement actually made, 617.