formation for having such in his possession could discharge himself, was by producing the Navy Board certificate, granted at the time of the sale, as that was the only evidence of the legal possession of them. Lord KENYON said, that it was clear, that in prosecutions under the statutes in question, it was sufficient for the Crown to prove the finding of the stores with the King's mark in the defendant's possession, to call upon him to account for that possession, and the manner of his coming by them; so that of course, the onus lay on the defendant, of proving that he had legally become possessed *of them; but that it could not bear a question, but that the defendant had other means of shewing that he had lawfully become possessed of them, than by the production of the certificate from the Navy Board: as for example, he might shew that he had bought them from another person who was in the practice of buying stores at the navy sales, and who therefore might fairly be presumed to have had the regular certificate, but who, when he sold part to the defendant, could not, consistent with his own safety, part with the certificate he had obtained, of his having been the purchaser of the whole lot. His Lordship said, he recollected a case in which this doctrine had been held by Mr. Justice FOSTER, who was one of the best Crown lawyers that had ever sat in Westminster Hall. That if the defendant therefore could shew either a navy certificate, or prove the purchase of the stores mentioned in the declaration, from any person who might be presumed to have been possessed of the proper certificate, from the circumstance of such person's having frequently been a purchaser at such sales, he was of opinion that it was such evidence as ought to induce the jury to find the defendant not guilty. The defendant did give such evidence, and was acquitted. Bearcroft, Mingay, and Brodrick for the Crown. Garrow for the defendant. REX v. BANKS. [ *147 ] 1794. July 18. At Guildhall. [172] [173] K. B. (AT NISI PRIUS) TRINITY TERM. BRISTOW AND ALT. ASSIGNEES OF CLARK AND (1 Espinasse, 172–174.) An action for money had and received, will lie against an infant, to recover money which he had embezzled. Infants are liable to actions ex delicto, but not to actions ex contractu, unless they arise from fraud. Contra Beal v. Hiscox, E. 39 G. III. ASSUMPSIT for money had and received to the use of the plaintiffs, with the usual money counts. The case as it appeared in evidence was, that the defendant had been apprentice to the bankrupts before their bankruptcy : that his principal employment, while he was in their service, had been in passing the ships engaged in their trade at the Custom-house, in making payments, and receiving money in that employment: but that in making out his returns to them of the monies expended on that account, he had made many very considerable overcharges, by which he had defrauded them of a very considerable sum of money; to recover back which was the object of the present action. Mingay for the defendant, rested his defence (inter alia) upon the point, that during the time that he had been so employed by the bankrupts, he was an infant, and therefore an action for money had and received, which was founded on a contract, could not be maintained against him. Lord KENYON said, That he was of opinion, that infancy was no defence to the action: that infants were liable to actions ex delicto, though not ex contractu; and though the present action was in its form an action of the latter description, yet it was of the former in point of substance: that if the assignees had brought an action of trover for any part of the property embezzled, or an action grounded on the fraud, that unquestion + Re Seager, Seeley v. Briggs (1889) 60 L. T. 663. ably infancy would have been no defence; and as the object of the present action was precisely the same, that his opinion was, that the same rule of law should apply, and that infancy was no bar to the action. The plaintiff had a verdict. Garrow and Lambe for the plaintiff. Mingay and Marryat for the defendant. C. P. (AT NISI PRIUS) TRINITY TERM. KNIGHT v. CROCKFORD. (1 Espinasse, 190—194.) An agreement beginning "I A. B." though not otherwise signed by the party, is good within the Statute of Frauds. THIS was an action brought by order of the Court of Chancery, to try the validity of an agreement for the sale of a public-house and premises. The plaintiff at the trial produced a memorandum of the agreement, beginning "I, James Crockford, agree to sell," &c. but signed only by the plaintiff, and witnessed by one Mills. [Evidence having been given as to the facts,] Adair, Serjt. of counsel for the defendant, objected, inter alia, That the agreement was void within the Statute of Frauds, as not being signed by the defendant, as required by the statute, it only beginning "I, James Crockford, agree," &c. and not having his name subscribed to it, which he contended the statute required. EYRE, Ch. J. said, That the agreement contained a sufficient signing within the Statute of Frauds, by beginning in the defendant's own hand-writing: "I, James Crockford, agree,” &c. 1794. At Westminster. [190] [192] [193] 1794. Nov. 11. At Westminster. [203] [ *204] K. B. (AT NISI PRIUS) MICHAELMAS TERM. BROCK v. COPELAND.† (1 Espinasse, 203-204.) In an action on the case for keeping a dog used to bite, if the dog was kept on the defendant's premises, and the injury received in consequence of the plaintiff imprudently going on them, the action cannot be maintained. But where there is a public way, or the owner of a mischievous animal suffers a way over his close to be used as a public one, if he keeps such animal in his close, he shall answer for any injury any person may sustain from it. THIS was an action on the case, to recover damages for an injury received from the defendant's dog. The declaration stated, that the defendant knowingly kept a dog used to bite; and then set out the injury received by the plaintiff. The defendant pleaded not guilty. It was given in evidence that the defendant was a carpenter, and that the dog was kept for the protection of his yard: that he was kept tied up all day, and was at that time very quiet and gentle, but was let loose at night. It was further proved that the plaintiff, who was foreman to the defendant, had gone into the yard after it had been shut up for the night, and the dog let out; at which time the injury happened, the dog having then bit and torn him. On this evidence Lord KENYON ruled, that the action would not lie. He said that every man had a right to keep a dog for the protection of his yard or house: that the injury which this action was calculated to redress, was where an animal known to be mischievous was permitted to go at large, and the injury therefore arose from the fault of the owner in not securing such animal, so as not to endanger or injure the public: that here the dog had been properly let loose; and the injury had arisen from the *plaintiff's own fault, in incautiously going into the defendant's yard after it had been shut up. † Cited in Bird v. Holbrook, 4 Bing. 628, 638, and confirmed by Sarch v. Blackburn, 4 C. & P. 297.-R. C. BROCK บ. His Lordship added, that in a former case, where in an action against a man for keeping a mischievous bull, that had hurt the COPELAND. plaintiff, it having appeared in evidence that the plaintiff was crossing a field of the defendant's where the bull was kept, and where he had received the injury, the defendant's counsel contended, that the plaintiff having gone there of his own head, and having received the injury from his own fault, that an action would not lie: but that it appearing also in evidence that there was a contest concerning a right of way over this field wherein the bull was kept, and that the defendant had permitted several persons to go over it as an open way, that he had ruled in that case, and the Court of King's Bench had concurred in opinion with him, That the plaintiff having gone into the field, supposing that he had a right to go there, and the defendant having permitted persons to go there, as over a legal way, that he should not then be allowed to set up in his defence the right of keeping such an animal there as in his own close; but that the action was maintainable. In the chief case the plaintiff was nonsuited. Erskine and Henderson for the plaintiff. Garrow for the defendant. AMERY v. ROGERS. (1 Espinasse, 207-209.) Where there is a joint insurance directed to be made on a ship and cargo, and part only attaches, the assured is only entitled to recover proportionately. THIS was an action of assumpsit, on a policy of insurance on the ship Dart, from St. Kitts to London: the defendant had underwritten 2001. 1794. Dec. 18. At Guildhall. [207] No question arose concerning the loss; the only doubt was, how far the plaintiff was entitled to recover. [ 208 ] The policy was on the ship and cargo. The evidence was, That Amery the plaintiff, who was the proprietor of the ship and cargo, had written from St. Kitts in the |