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CONTRACT OF SALE (continued)—of chattel on con-
dition: breach of warranty: rescission of con-
tract] The purchaser of a mare at an auction was
induced to buy her by the description that she had
been hunted with certain hounds. The conditions
of sale provided that horses not answering the de-
cription must be returned before a specified time,
otherwise the purchaser must keep them with all
faults. The purchaser paid the price, and was
casually told that the description was untrue.
Nevertheless, he removed the mare to his own
stables, and while being so removed, she ran
away and injured herself severely, without any
negligence on the plaintiff's part. The descrip-
tion was, in fact, untrue, and on that ground
the purchaser returned her to the seller within
the specified time:-Held, that since the pur-
chaser had in removing her done no more than
he was entitled to do under the contract, and
since the injuries were not owing to any negli-
gence on his part, he had not lost his right to
rescind the contract, and could recover the price
from the seller in an action for money had and
received. Head v. Tattersall, Ex., 4

rescission of fraud discovered after action
brought: election to rescind equitable plea:
stoppage in transitu]-A. having ordered goods
from the L. P. Company in London, paid them
687. in cash, and gave a bill for 135l., the
balance of the price, directing the goods to be
sent by the defendants' railway to C., his agent
at Liverpool. The railway company reported to
the L. P. Company that C. was not to be found
at the address given, and asked for further di-
rections; but before any reply was received, C.
claimed the goods at the station in Liverpool,
and the defendants thenceforward held them as
warehousemen for him. In the meantime, the
L. P. Company having discovered that A. was
a bankrupt, directed the defendants to return
the goods to London; but this direction did not
reach the Liverpool station till after the tran-
situs was at an end. The defendants being in-
demnified by the L. P. Company, afterwards
refused to deliver the goods to C., whereupon
he brought an action against them.
trial, the jury found-First, that A. obtained
the goods with the intention of not paying for
them; second, that the plaintiff had advanced
2507. (including the 687.) to A., but not bona fide;
and third, that he knew of A.'s fraudulent inten-
tion. A verdict was thereupon entered for
defendants, leave being reserved to move to
enter a verdict for the plaintiff, if the Court
should think defendants not entitled to the
verdict, either upon the pleas as they then
stood, 66
or upon any possible amendment of
them":- Held (reversing the judgment below),
that, upon the facts proved, a plea stating,
-"that the goods had been sold to A., and
delivered by L. P. Company to defendants,
to be delivered to the plaintiff under a con-
tract induced by A.'s fraud, to which the
plaintiff was privy; that the L. P. Company,
supposing the transitus to be still subsisting,

At the

had obtained from defendants the re-delivery
of the goods, but that afterwards, and after
action brought, the L. P. Company having dis-
covered the fraud and the plaintiff's knowledge
of it, elected to rescind this contract with the
plaintiff, and that they were ready to restore the
681. and the bill; that this took place before
any act was done by them affirming the con-
tract or otherwise determining their election;
that no interest had vested in any innocent third
person, rendering it inequitable or unjust to re-
scind the contract; and that the plaintiff was
inequitably proceeding with the suit for the
purpose of obtaining damages from the defen-
dants and the P. Company,"-would have been
proved, and would have furnished a complete
answer to the action on equitable if not on legal
grounds. Clough v. The London and North
Western Rail. Co. (Ex. Ch.), Ex., 17

condition precedent: arrival and delivery
at port: risks of navigation to be borne by pur-
chaser]-By an agreement in which C. was
described as vendor, and P. as purchaser,
C. agreed to ship a cargo of ice, and on the
same being shipped, to forward to P. bills of
lading, on receipt of which P. was to "take
upon himself all risks and dangers of the sea,
&c.," P. agreeing also "to buy and receive the
ice on its arrival" taking the ice from along-
side the ship, and paying for it in cash on
delivery at the rate of 20s. per ton, weighed on
board during delivery:-Held (reversing the
judgment of the Court of Exchequer, 39 Law
J. Rep. (N.s.) Exch. 150), that upon the true
construction of the agreement, the effect of the
clause as to risks and dangers of the seas was
not merely to save C. from liability for non-
delivery, but to bind P. to insure the cargo on
receiving the bill of lading; and that the ship
and cargo having been lost on the voyage
through perils of the seas, P. was liable to pay
C. the price or the value of the cargo. Castle v.
Playford (Ex. Ch.), Ex., 44

COPYHOLD —admittance of remainderman: right to
compel admittance of termor for years]-De-
fendant's uncle, who was tenant in fee of lands
in the manor of R., according to the custom of
the manor, devised his estate for a term of
500 years, upon certain trusts and subject to
the term, to defendant in fee. Upon the uncle's
death the lord of the manor admitted defendant,
who was an infant, and received a full fine in
respect of the admittance. The lord, however,
insisted that the trustees should also be ad-
mitted and pay a fine in respect of the term of
500 years, and upon their refusal, after pro-
clamation, to come in and be admitted, he
seized quousque and brought ejectment to try
his right to the additional fine:-Held, that the
lord having admitted the remainderman as
tenant on the roll, and received a full fine, could
not compel the trustees to be admitted, though
possibly he might be compelled to grant them
admission if they asked for it. Everingham v.
Ivatt, Q.B., 263

enfranchisement: valuation of facilities
for improvement]-Where the lord of a manor
requires the enfranchisement of copyhold
lands under the 15 & 16 Vict. c. 51, and the
consideration to be paid to the lord for the en-
franchisement is to be ascertained by valua-
tion under the Act, it is enacted, by section 16,
that "in making any valuation under this Act
the valuers shall take into account the facilities

for improvement. . and all other circum-
stances affecting or relating to the land which
shall be included in such enfranchisement, and
all advantages to arise therefrom, and shall
make due allowance for the same." Part of
certain land required to be enfranchised by the
lord of the manor was the subject of an unex-
pired lease granted with the license of the lord
for a term of twenty-one years, and with another
part of the same land was included in a testa-
mentary settlement, and was subject to the
trusts thereof. The settlement contained a
power of leasing in the trustees. The land was
building land, valuable as such by reason of
its situation and aptitude for building, except
that a portion of the land had no communication
with a highway but through the said other
lands or through lands belonging to third
parties:-Held, that in assessing the compensa-
tion or consideration payable to the lord on the
enfranchisement, such lease and settlement
were to be taken into consideration by the
valuers as obstacles in the way of the facilities
for improvement, and in reduction of any com-
pensation payable to the lord in respect of such
facilities. Arden v. Wilson, C.P., 273

-enfranchisement: special custom: deferred
payment: hardship]-Where a lord of a manor,
who takes proceedings under the Copyhold Acts
to compel a tenant to enfranchise, sets up a
special custom entitling him to one-third of the
timber, if there be evidence, it is the exclusive
province of the Copyhold Commissioners to de-
termine whether the custom is proved, and the
Court will not interfere with their decision; the
valuers acting under the second part of s. 8 of
21 & 22 Vict. c. 94, are not bound to state in
their award what proportion of the rent-charge
should be deferred, or such particulars as might
enable the Commissioners to defer payment of
the whole rent-charge or any part thereof; and
though the pecuniary circumstances of the
tenant ought not to be taken into account in de-
termining whether there is special hardship
under 15 & 16 Vict. c. 51. s. 35, and the Com-
missioners inquire into them, and though the
Court think, looking to the particular interest,
&c., of the tenant, that there is hardship, yet
the Court are not at liberty to interfere with
the decision of the Commissioners that there is
no such hardship. Reynolds v. The Lord of the
Manor of Woodham Walter, C.P., 281

CORPORATION-Liability for not keeping towing
path in repair. See Negligence-Winch v.
Conservators of River Thames,

COSTS

allowed by court after refusal of judge
at nisi prius to certify]-In an action of trespass
quare clausum fregit where defendant pleaded
several pleas foreign to the real question in
issue, plaintiff obtained a verdict for forty
shillings; and the judge refused to certify that
there was sufficient reason for bringing the
action in a superior Court. The Court after-
wards, being of opinion that there was sufficient
reason for bringing the action in the superior
Court, and that if it had been commenced in
the County Court it might undoubtedly have
been removed to the superior Court, allowed
plaintiff his costs by rule, notwithstanding that
the judge who tried the cause had, on the same
materials, refused to certify.-Hatch v. Lewis
distinguished. Hinde v. Sheppard, Ex., 25

COUNTY COURT-misjoinder of defendants: amend-
ment] When a cause after issue joined is
ordered to be tried in a County Court, under
19 & 20 Vict. c. 108. s. 26, the judge of the
County Court has at the trial the same power of
amending a misjoinder of defendants as a judge
of a superior Court sitting at Nisi Prius has
under s. 37 of the Common Law Procedure
Act, 1852. Renninson v. Walker, Ex., 43

effect of warrant of possession: trespass]-
A warrant of possession obtained under 19
& 20 Vict. c. 108. s. 50 by a landlord pro-
ceeding in the County Court against his
tenant, but not against the person actually in
possession, is not conclusive against the latter,
who may notwithstanding the warrant bring an
action of trespass against the landlord, if the
landlord had not in fact a right to the pos-
session of the premises. So held by CHANNELL,
B., and PIGOTT, B.; Contra by MARTIN, B.
Hudson v. Walker, Ex., 51

Jurisdiction in Admiralty cases. See Pro-

hibition.

COVENANT in restraint of trade: mode of mea-
suring distance]-In construing a covenant by
an assignor of a lease not to carry on the busi-
ness of a public-house keeper within the distance
of half a mile of the assigned premises, the
distance is to be measured in a straight line,
and not according to the nearest practicable
route. So held by MARTIN, B., and CHANNELL,
B., contra by CLEASBY, B. Moufflet v. Cole,
Ex., 28

lease for lives: lapse of one life: war
ranty of title]-Defendant assigned by deed
a lease for the lives of W., J., and H., to hold
for the lives of W., J., and H., and the survivors
and survivor of them, and covenanted that the
lease "was a good, valid, and subsisting lease
in the law for the lives of W., J., and H., and
the survivors and survivor of them, and was not
forfeited, surrendered, or become void or void-
able." It was proved that J. had died before

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The

DAMAGE―remoteness: proximate cause: frozen
water on a highway: liability for a wrongful
act] Defendant washed a van of his on the
part of the street opposite his coach-house, and
the water so used ran along the gutter by the
side of the street for about seventy feet down
to the corner of another street, where, meeting
an obstruction, it accumulated and expanded over
part of the roadway, instead of going as usual
into the sewer, and there being a sharp frost
at the time it shortly became frozen over.
cleaning a van in the street was an offence
under the Metropolitan Police Act, 2 & 3 Vict.
c. 47. s. 54. subs. 1, but defendant was not
shewn to have known of the obstruction at the
corner, and if he had cleaned the van in the
coach-house the water would also have gone
into the same gutter in the street :-Held, that
defendant was not liable to plaintiff for damage
caused to his horse by slipping whilst passing
over the frozen water at the corner, as such
damage was too remote, and was not the im-
mediate and proximate cause of defendant's
act. Sharp v. Powell, C.P., 95

remoteness: proximate cause: contribu-
tory negligence of third party] - Defendants
having contracted to supply plaintiff with a
service pipe, from their main to the meter
on his premises, laid down a defective pipe
from which the gas escaped. A workman, in
the employ of a gas fitter, engaged by plaintiff
to lay down pipes upon his premises, negligently
took a lighted candle for the purpose of
finding out whence the escape proceeded. An
explosion then took place, whereby damage was
occasioned to the plaintiff's premises, and the
plaintiff thereupon brought an action to recover
compensation from defendants:-Held, affirm-
ing the judgment of the Court below, 39 Law
J. Rep. (N.s.) Exch. 33, that he was entitled
to recover. Burrows v. The March Gas and
Coke Co. (Ex. Ch.), Ex., 46

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Lords Bailiffs of Romney Marsh v. Corporation
of Trinity House.

DEBTOR AND CREDITOR-composition deed: detinue
against surety: right of creditor to composition
after disputing validity of deed: power of court
of error to draw inferences]-Detinue does not
lie against the maker of a promissory note after
he has delivered it to a properly constituted
stakeholder, though he may have forbidden the
stakeholder to hand it over to the person claim-
ing it, and in whose favour it was drawn. Lat-
ter v. White (H.L.), Q.B., 342

The trustee of a composition deed holding the bills
or notes of the debtor or of his surety for the
benefit of creditors is such a stakeholder. Ibid.
Semble, by LORD CAIRNS, a creditor who has, as
between himself and the debtor, successfully
contested in a Court of law the validity of a
creditors' or composition deed executed by his
debtor, is not thereby precluded from afterwards
coming in under the deed, and obtaining the
benefits he would only be entitled to on the foot-
ing that the deed was valid. Ibid.

A Court of Error has no larger power to draw
inferences than had the Court of original juris-
diction. Where, in a special case, power for the
Court to draw inferences from the facts stated is
not reserved, neither the Court of first instance
nor the Court of Error can draw such infer-
ences. Ibid.

composition]-Where by an extraordinary
resolution under section 126 of the Bankruptcy
Act, 1869, creditors resolve to accept a com-
position in satisfaction of their debts, but the
debtor fails to pay the said composition, the
creditors are entitled to bring actions for their
original debts. Edwards v. Coombe, C.P., 202

Trust deed containing release subject to a
proviso. See Principal and Surety-Bateson
v. Gosling

DEFAMATION. See Libel. Slander.

DETINUE-goods at sufferance wharf: bailee of
goods]-Goods ordered by L. from plaintiff
abroad were shipped and consigned to L., the
bill of lading and invoice being forwarded in
due course. The vessel with the goods on
board arrived on the 12th of February at a
sufferance wharf kept by defendant in London.
Before she arrived L. had deposited the bill of
lading at the wharf, with directions to take
delivery, and warehouse the goods on his ac-
count. This was done, the goods being entered
in the name of L. subject to the freight.
the 19th of February L. gave notice to plaintiff
that the goods were not according to contract,
and that he refused to take them. It was agreed
on the 19th of April that plaintiff should take
them back, and L. promised to send the de-
livery order, but instead of doing so, he in-
dorsed the bill of lading to M. who took it to
defendant, and obtained a transfer of the

On

goods to his own name. On the 3rd of June M.
paid the freight; obtained warrants for delivery
to him or his order, and a transfer was made
from his name to 66 warrants." Plaintiff ten-
dered both to M. and also to defendant the
amount of all "charges" due for the goods. The
transaction between M. and L. was colourable,
and with knowledge on the part of M. of the
intention of L. to deprive plaintiff of the goods.
Defendant refused to deliver the goods to
plaintiff, and delivered them to another person
by order of M.:-Held, in an action to recover
the goods, that defendant held them in no other
relation than of ordinary bailee, and was liable
to plaintiff. Batut v. Hartley, Q.B., 273

against maker of promissory note delivered
to a stakeholder. See Debtor and Creditor-
Latter v. White.

See Judgment.

DEVISE. See Will.

DISTRESS-Action for excessive seizure. See Land-
lord and Tenant-Fell v. Whitaker.
EASEMENT implied grant of right of way]—In a
lease the demised premises were described as
"all that plot of land bounded on the east and
north by newly made streets, a plan whereof is
indorsed on these presents," and the lessee cove-
nanted to kerb the causeways adjoining the said
lands. The site of the new streets was marked
as such in the plan indorsed:-Held, that this
amounted to a grant of a right away along the
proposed new streets to the land demised.
Espley v. Wilkes, Ex., 241

EJECTMENT-Costs of former trial. See Staying
Proceedings. And see Interrogatories. Land-
lord and Tenant.

EQUITABLE DEFENCE-promissory note: principal

and surety: set-off]-It is a good equitable
defence to an action against the maker of a
promissory note, that the note was made by
the defendant and R. jointly and severally,
that the defendant, as the plaintiff knew, was
only surety for R., that afterwards, without the
defendant's consent, the plaintiff became in-
debted to R., in an amount equal to that of the
note and all moneys due from R., in the follow-
ing way, namely, that the plaintiff and R. were
partners, and the plaintiff sold to R. his interest
in the partnership debts, and the note was to
secure part of the price, but the plaintiff re-
ceived a large part of the debts though he
knew that the defendant made the note in con-
sideration that R. should receive them. Be-
chervaise v. Lewis, C.P., 161

See Principal and Surety.

ERROR-Power of Court to draw inferences. See
Debtor and Creditor-Latter v. White.

ESTOPPEL. See Sheriff.

EVIDENCE-Presumption from long payment. See
Lunatic Prisoner, and see Bankruptcy. Revell
v. Blake. And see Marine Insurance. Princi-
pal and Agent.

EXECUTION. See Bankruptcy-Revell v. Blake.

EXECUTOR contract of testator: liability of exe-
cutor of executor de son tort]-An executor of
an executor de son tort is not liable for breach
of contract committed by the original testator,
although the executor de son tort has actually
possessed himself of the particular property or
effects of the testator in respect of which the
contract was entered into. Wilson v. Hodgson,
Ex., 49

Liability of, as Partner. See Partners.
FIXTURES-Right of mortgagee as against trustee
in bankruptcy. See Bankruptcy-Holland v.
Hodgson.

FORFEITURE - waiver of. See Landlord and
Tenant-Tolman v. Portbury.

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FRAUDS, STATUTE OF--sale of goods for more than
101.: memorandum or note in writing]-On the
11th of January plaintiff verbally agreed with
defendant to buy his wool for a price exceeding
10., and wrote the terms in a letter, which de-
fendant took away. One of those terms was,
"the whole to be cleared in about twenty-one
days." In a letter sent to plaintiff on the 8th
of February, and signed by defendant, he said,
"It is now twenty-eight days since you and I
had a deal for my wool which was for you to
have taken all away in twenty-one days from
the time you bought it. I do not consider it
business to put it off like this, therefore I
shall consider the deal off, as you have not
completed your part of the contract.

On the 9th of February plaintiff verbally asked
defendant for a copy of the contract which
he had given him on the 11th of January,
and later on the same day defendant wrote
and signed a letter to plaintiff: "I beg to
enclose a copy of your letter of the 11th of
January, 1871." On the same paper and
underneath there was, in defendant's writing, a
copy of the letter of the 11th of January.
Plaintiff having sued defendant for not de-
livering the wool,- Held, affirming the deci-
sion below-Ex., 1), that rightly interpreted
defendant's two letters admitted the con-
tract, but alleged that defendant's construction
of the contract was the correct one; and that
taking the three letters together there was
a sufficient memorandum in writing to charge
defendant within section 17 of the Statute of
Frands. Buxton v. Rust (Ex. Ch.), Ex., 173

FRAUDS, STATUTE OF (continued)-See Work and
Labour.

FREIGHT. See Marine Insurance.

FRIENDLY SOCIETY-liability of treasurer to sum-
mary remedy for withholding money. Barrett
v. Markham, C.P., 201; M.C., 118

GAME-Prevention of Poaching Act: using any
article or thing for unlawfully killing or taking
game. Jenkin v. King, Q.B., 226; M.C., 145

GRANT. See Common.

GUARANTIE-consideration: withdrawal of peti-
tion in Chancery: double promise]—A guarantie
was given to plaintiff by defendants in the
following terms: "In consideration of your
withdrawing the petition you have presented
for winding up the A. Company (Lim.) we
agree to pay all the costs you have incurred
in reference to the petition. We further agree
to guarantee the payment to you within eighteen
months, by the company or the liquidator
thereof, of the principal of your debt of 7221."
To a declaration on this guarantie, alleging as
a breach the non-payment of the 7227., de-
fendants pleaded that after the alleged with-
drawal of the said petition, and before a rea-
sonable time had elapsed, and within the said
eighteen months, plaintiff presented another
petition for winding up the company, which
prevented the collection of the assets of the
company. At the trial, the jury found that the
presentation of the second petition did not
prevent the collection of assets :-Held, that the
withdrawal of the first petition was a sufficient
consideration for both promises of the guaran-
tors; that the plea, as proved, afforded no
defence; and that on the finding of the jury
plaintiff was entitled to recover. Harris v.
Venables, Ex., 180

See Principal and Surety-Phillips v. Foxall.

GUNPOWDER ACT-keeping cartridges without
license. Dealer but not manufacturer. Webley
v. Woolley, Q.B., 88; M.C., 38

duty to erect lightning conductors. Penal-
ties. Eliott v. Majendie, Q.B., 226; M.C., 147

HABEAS CORPUS-child under fourteen years of
age: guardianship for nurture]-The mother of
a child, between ten and eleven years of age,
although a Roman Catholic, had consented to
the child being placed in a Protestant school
for destitute children. Being ill, from consump-
tion, in a workhouse infirmary, she became, as
she alleged, anxious that the child should be
removed, and placed in a home for poor
children, so that she might be brought up in
the mother's own faith, and in that in which the
child had been baptized. She had, before being

in the infirmary, lived in lodging-houses, had
neglected the child, and had lived a drunken
and immoral life. The father of the child was
dead, and the child herself desired to remain
in the school:-Held, that under these cir-
cumstances the Court would not grant a
Habeas Corpus to remove the child.
In re
Turner, ex parte Turner, Q.B., 142

HACKNEY CARRIAGE-Plying for hire. What a
public place. Skinner v. Usher, Q.B., 220;
M.C., 158

Plying for hire. Construction of Town
Police Clauses Act, 1847. Curtis v. Embrey,
Ex., 241; M.C., Vol. 42, 1873

See Negligence-Fowler v. Lock.
HIGHWAY-Encroachment upon the carriage-way
or cart-way, or upon that part at the side which
has been dedicated to the public. Easton v.
The Highway Board of the Richmond Highway
District, Q.B., 41; M.C., 25

Right to carriage way across foot pavement.
The Vestry of St. Mary, Newington, v. Jacobs,
Q.B., 89; M.C., 72

Stopping up or diverting. Time for giving
notice of appeal to Quarter Sessions. Regina v.
Maule, Q.B., 120; M.C., 47

Obstruction of. Custom. Statute sessions.
Claim of right. Jurisdiction of justices. Simp-
son v. Wells, Q.B., 186; M.C., 105

in navigable lake. See Trespass.

HUSBAND AND WIFE-money borrowed and received
for improvement of wife's separate estate: parties
to action]-A married woman, entitled to pro-
perty for her separate use, was desirous of raising
money for the improvement of her estate, while
her husband also wished to raise money to
discharge a debt. They accordingly arranged
through defendant, their solicitor, to borrow
money upon mortgage of the separate estate,
and upon policies on the lives of each of them
respectively. The money was to be advanced by
instalments, and when the first instalment was
due, the husband and wife signed a joint au-
thority for defendant to receive it for them.
Defendant received the money, and claimed to
retain part of it in respect of a separate debt
due to him as solicitor of the husband:-Held,
in an action by husband and wife, that de-
fendant could not retain the money, or set it
off as a debt due from the husband, as it was
received by him upon the express understanding
that it was to be held for the husband and
wife jointly, so that there never was any re-
duction into possession on the part of the
husband. Jones v. Cuthbertson, Q.B., 145

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