INDEX.

ACCIDENT-Inevitable.—Where a vessel was sunk in a navigable
river, by accident or misfortune, an indictment cannot be maintained against
the owner for not removing it. Rex v. Watts

766

ANIMAL Dangerous Dog. 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. Brock v. Copeland.

730

ANNUITY—Sale of, by solicitor to his client set aside. Gibson v.

ARBITRATION.-1. Award set aside: the arbitrator having received
evidence after notice to the parties that he would receive no more, in which
they acquiesced. Walker v. Frobisher.

223

2. The Court will not make a submission to an award a rule of Court,
where part of the matter agreed to be referred has been made the subject of
an indictment. Watson v. M'Cullum

And see Partnership, 2.
ASSIGNMENT. See Lease.

433

ASSAULT-Damages. In trespass for assault and battery, and not
guilty pleaded, the jury are not at liberty to take into consideration the
circumstances of the assault and battery, with a view to reduce the verdict
below the amount of the damage actually sustained, if those circumstances
could have been pleaded. Watson v. Christie

. . 579
BANKRUPTCY-1. Discharge.-A discharge under a commission of
bankrupt in a foreign country is no bar to an action for a debt arising here
against the bankrupt by a creditor a subject of this country. Smith v.
Buchanan

499

2. Dividend.-Creditor having securities of third persons to a
greater amount than the debt, may prove and receive dividends upon the full
amount of the securities to the extent of 20s. in the pound upon the actual
debt. Bloxham, Ex parte
. 358
BANKRUPTCY-3. Purchase of estate by assignee.-Assignees of
a bankrupt removed on the ground, that one of them had purchased the

bankrupt's estates under the commission, for himself. A re-sale was directed;
and the purchaser to account for a profit gained by him upon a re-sale of
part: but he was discharged from the purchase only conditionally, in case
the re-sale should produce more. Reynolds, Ex parte .

4. Fraudulent preference. See Bill of Exchange, 3.
5. Of continuing partner. See Partnership, 5.
And see Mortgage, 2.

143

BARRISTER.-A barrister cannot be called as a witness, to prove what
was stated by him on a motion before the Court. Curry v. Walter. 743

BILL OF EXCHANGE—1. Discharge of Indorser.-A. makes a
promissory note in favour of A., B., and C. The note is endorsed by them
to C., E., and F., who, as holders, bring an action upon the note against B.
as indorser. The action will not lie; nor can it be made good by any
amendment in respect of parties. Mainwaring v. Newman .

554

2. Form.-A draft in these words, "Mr. N. will much oblige
Mr. W. by paying to J. R. or order 207. on his account," is a bill of ex-
change, and cannot be given in evidence without a stamp. Neither is such
draft, though taken without objection by the party at the time, any dis-
charge of a subsisting debt. Ruff v. Webb
723

3. Fraudulent preference of creditor.-The acceptor of a bill of
exchange two days before the expiration of the time for which the bill was
originally drawn, called upon the indorser and informed him privately that
he was insolvent; the indorser insisted on being paid the amount of the bill,
offering at the same time to become security to the creditors for so much as
the estate should produce, whereupon the acceptor paid it, and four days
after became bankrupt; it also appeared that the bill had been altered so as
to make it fall due before this transaction, but without the defendant's
knowledge. Held that this was sufficient proof of fraudulent preference to
defeat the payment of the bill. Singleton v. Butler

593

4. Specific appropriation.-A. abroad commissions B. in London,
to send him foreign coin; with particular directions as to the manner and times
of sending it; and remits bills; which B. discounts; and, the coin required
not being to be had in England, sends two remittances, not equal to the amount
of A.'s bills, to Lisbon, for the purpose of procuring it: with directions, if it
cannot be had, to return bills. The coin not being obtainable, bills, nearly to
the amount of the remittance to Lisbon, not indorsed by the correspondent
there, are returned; and, B. in the interval becoming bankrupt, are received
by his assignees. A. was held entitled to follow those bills under the par-
ticular circumstances: the Lord Chancellor expressing much doubt, whether
the same would hold in the case of a remittance to buy goods in the way of
trade. Sayers, Ex parte
. 17

5. Premature demand for payment.-Where by mistake payment
of a bill had been demanded from the acceptor the day before it became due,
in an action against the drawer he shall be nonsuited, the demand being
premature. Wissen v. Roberts
⚫ 737
6. Release of indorser by transaction between holder and
acceptor. If the indorsee of a bill having sued the acceptor to judgment,
and taken out execution, receive of him a sum of money in part payment,
and take his security for the remainder, with the exception of a nominal sum
only; he is thereby precluded from afterwards suing the indorser. English
v. Darley

543

BILL OF EXCHANGE-7. Unauthorised acceptance on partner-
ship account. See Partnership.

BILL OF SALE-Twyne's case.-The goods of A. being taken in
execution and put up to sale, B. became the purchaser and took a bill of sale

of the sheriff, but permitted A. to continue in possession; A. then executed
another bill of sale of the same goods to C. a creditor, under which the latter
took possession; whereupon B. brought an action against C. for the goods.
Held, that the first bill of sale was valid, and that B. was therefore entitled
to recover. Kidd v. Rawlinson
540

BOND-1. Form.-A. executed a bond as the joint and several bond of
himself and B., and signed it "A. and B.," having no authority from B. so to
do. Held that the bond was good as the several bond of A. Elliot v. Davis

616

2. Immoral consideration.-Voluntary bond during cohabitation
to a woman previously of a very loose life: soon afterwards another bond,
expressly securing a continuance of the connection by an annuity in case of
separation. Bill by the executor to have the bonds delivered up was dis-
missed with costs: the former being considered unimpeached: the latter void
at law, as pro turpi causâ. Gray v. Mathius

48

3. Post-obit.-A bond was conditioned that the obligor should
indemnify the obligee from all the sums the latter should pay, or be liable
to pay, on the obligor's account; and before the execution of the bond a
memorandum was thereon indorsed, that the obligee hath given an under-
taking not to sue upon the bond until after the obligor's death; " held that
this memorandum was to be taken as part of the condition; and made the
bond in effect payable only by the representatives of the obligor after his
death. Burgh v. Preston
416

4. A bond given for the payment of an annuity until the hop duties
should amount to a certain sum is voidable. Tappenden v. Randall

BURGLARY. See Criminal Law, 1.

662

CARRIER-1. Liability-Notice. The owners of vessels on the navi-
gation between A. and C. having given public notice that they would not
be answerable for losses in any case, except the loss were occasioned by
want of care in the master, nor even in such case beyond 107. per cent.
unless extra freight were paid, the master of one of the ships took on
board the plaintiff's goods, to be carried from A. to B. (an intermediate
place between A. and C.) and delivered at B.; the vessel passed by B. without
delivering the plaintiff's goods there, and sunk before her arrival at C.
without any want of care in the master; held that the owner of the vessel
was responsible to the plaintiff for the whole loss in an action on the con-
tract. Ellis v. Turner .
441

2. Liability for injury to passengers.-Coach owners are not
liable for injuries happening to passengers, from accident or misfortune,
where there has been no negligence or default in the driver. Where
there is no other carriage on the road, the driver may keep in the middle
of the road, and is not bound to keep on the left hand side of the road, even
though the accident might have proceeded from the coach not being on the
proper side. Aston v. Heaven
750
3. Warranty of safe delivery.-If A. send goods by B. who says
"I will warrant they shall go safe," B. is liable for any damage sustained by
the goods notwithstanding A. send one of his own servants in B.'s cart to
look after them. Robinson v. Dunmore

And see Lien.

CHAPEL-Gift to build. See Will, 27.

CHARITY. See Will, 27, 29.

635

CHILD, illegitimate, not entitled under description of "child."

See Will, 16, 28.

CHURCH. See Pew.

CITY OF LONDON.—The common seal of the city proves itself. Doed.
Woodmass v. Mason

718

CONTRACT-1. Illegal-Recovery back of money paid under.—
A. in consideration of 2007. paid by B. gave a bond for the payment of an
annuity to the latter of 100 guineas until the hop-duties should amount to a
certain sum. Before this event had taken place A. brought an action to
recover back the 2007. of B. Held that the action was maintainable.
Tappenden v. Randall

662

2. Penalty. By articles of agreement between the plaintiff and
defendant it was agreed on the part of the former that he should pay the
latter so much per week to perform at his theatres, with her travelling
expenses of removing from one theatre to another except extra baggage;
and on the part of the defendant, that she should perform at the theatres
such things as she should be required by the plaintiff, and attend at the
theatre beyond the usual hours on any emergency and at rehearsals or be
subject to such fines as are established at the theatres, and be at the theatre
half an hour before the performances begin, and abide by the regulations
of the theatres and pay all fines; and it was agreed by both parties that
"either of them neglecting to perform that agreement should pay to the
other 2001." Assumpsit upon this agreement stating several breaches, and
concluding to the plaintiff's damage of 2007.-Held that the sum mentioned
in the agreement was in the nature of a penalty, not of liquidated damages.
Astley v. Weldon

3. Against public policy. See Wager.

4. Immoral. See Bond, 2.

And see Evidence, 7, 8, and Vendor and Purchaser.

618

CORPORATION-1. Majority.- The Crown by letters-patent granted
to the master and wardens of the corporation of bakers (there being four
wardens), by themselves and their deputy or deputies, full power to overlook
and correct the trade of baking. Held, that the master and one warden
could not justify entering the house of a baker to overlook bread; for if they
acted as principals, they did not amount to a majority of the persons to
whom the power was given; and if they acted as deputies, it should have
appeared that they were appointed by the majority. Cook v. Loveland 533
2. Leave to inspect muniments in possession of. See Prac-
tice, 3.

COSTS—1. Of former action. See Ejectment, 2.

2. Security for. See Practice, 2.
And see Will, 19.

COVENANT-1. Construction.-The rule that the words of a cove-
nant are to be taken most strongly against the covenantor, must be
qualified by the observation that a due regard must be paid to the intention
of the parties as collected from the whole context. A. after granting certain
premises in fee to B. and after warranting the same against himself and his
heirs, covenanted, that notwithstanding any act by him done to the contrary
he was seised of the premises in fee, and that he had full power, &c. to con-
vey the same; he then covenanted for himself, his heirs, executors, and
administrators, to make a cart-way, and that B. should quietly enjoy with-

out interruption from himself, or any person claiming under him; and,
lastly, that he, his heirs, and assigns, and all persons claiming under him,
should make further assurance. Held, that the general intervening words,
'full power, &c. to convey,' were either part of the preceding special
covenant; or, if not, that they were qualified by all the other special
covenants against the acts of himself and his heirs. Browning v. Wright 521

COVENANT-2. Fair and usual-Not to Assign.-Covenant in a
lease not to assign or underlet without leave of the landlord in writing, is
consistent with a warranty that the lease (being that of a public-house) con-
tains none but fair and usual covenants. Morgan v. Slaughter

3. Breach of. See Landlord and Tenant, 1.

4. For renewal of lease. See Landlord and Tenant, 3.
5. To leave by will. See Settlement (Marriage), 1.

715

CRIMINAL LAW-1. Burglary.-Burglary cannot be committed in a
centre building used merely as a partnership counting-house, but having no
internal communication with the dwelling-houses which form the wings.
The assent of a prosecutor, to give facility to the commission of a larceny,
for the purpose of detecting the offenders, does not do away with the felony,
although the property was not taken against his will. Rex v. Egginton 689

2. Copy of Commitment.-Service of a demand of a copy of the
commitment on the turnkey of a prison is not sufficient to support an action
against the gaoler for the penalty incurred by him under the Habeas Corpus
Act, for not delivering the copy to the prisoner within due time after the
demand made, if the gaoler himself were in the prison. Huntley v. Lus-
combe

3. Description of defendants.-A conviction on the
laws against such an one and company cannot be supported.
Harrison

697
excise

Rex v.
424

4. Mens rea. In an information under the statute relating to the
embezzlement of public stores, the defendant is not bound to produce a Navy
Board certificate of the purchase of stores, but may prove by other evidence
that he became legally possessed of them. Rex v. Banks

726

5. Practice. In a criminal prosecution where the defendant calls
no witnesses, the counsel for the prosecution are not entitled to a reply.
Rex v. Lord Abingdon
733

6. Statutory offence.-A summary conviction for any offence
created by statute, must negative every exception contained in the clause
creating the offence; and a defect in omitting to do so, is not aided by a
proviso in the statute, That " no conviction for any offence in the act shall
be set aside for want of form, or through the mistake of any fact, circum-
stance, or other matter, provided the material fact alleged were proved;
for this in effect requires all material facts to be alleged: and it is a material
fact that the defendant did not come within any exception in the enacting
clause.

If a statute, authorising a summary conviction before a magistrate, give
an appeal to the sessions, who are directed to hear and finally determine the
matter, this does not take away the certiorari, even after such an appeal
made and determined. Rex v. Joseph Jukes .

And see Arbitration, 2.

445

CUSTOM. Under a claim of right by a custom for all the inhabitants of
a parish, evidence that a party claiming such right rented a tenement within
the parish, which he used occasionally, though he did not actually reside
within the parish, will support the custom.-Where a party claims a right