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Law Procedure Act, 1860, succeed as to the one that the rule was positive, and that this Court
who was entitled to recover, subject only to the would not dispense with it. Ex parte Hay, Q.B.,
right of defendant to the costs occasioned by 375
such joinder. De Gendre v. Bogardus, C.P., 107

admission : articled clerk: intermediate era-
AMENDMENT (continued)--of misjoinder of defen. mination]-A member of the Unirersity of

dants on trial in County Court. See County Edinburgh, who has not taken the degree of

M.A., but has been enrolled on the General

Council by virtue of 21 & 22 Vict. c. 83. 8. 6,
of form of action. See Action,

is not entitled to be admitted an attorney after

three years' service under articles. Ex parte
ANIMALS—mischievous dog. See Negligence.

Stewart, Ex, 76

Quære, whether this Court has jurisdiction to

compel the examiners to grant a certificate to

an articled clerk that he has passed his inter-

mediate examination. Ibid.
ARBITRATION — award : evidence of arbitrator :
Lands Clauses Act : lands injuriously affected :

liability for negligence: duty to register lis
no land taken but only an easement appurtenant

pendens] –In an action against a solicitor for
to the lands injured)-In an action upon an

negligence, the declaration stated that plaintiff
award, the arbitrator's evidence is admissible to

was equitably interested in four-tenth parts of
shew in respect of what matters he allowed or

the lease of a colliery, that the lessee had en-
refused compensation, but not to explain his

tered into negotiations for the sale of the lease
reasons for awarding a particular sum in respect

to a company, and that plaintiff retained defen-
of any particular matter. The Duke of Buccleuch

dant, as solicitor, to file a bill in Chancery
and Queensberry v. The Metropolitan Board of

against the lessee and the company for the
Works (H.L.), Èx., 137

purpose of enforcing plaintiff's claim in respect
When lands are injuriously affected by the con-

of his shares, and praying that the lessed
struction of works authorised by an Act of

might convey and secure to plaintiff four-
Parliament, the owner is entitled to compensa-

tenths of the purchase money, and that the
tion if an easement appurtenant to the lands is

company might be decreed to do all things ne-
taken, just as he would be if part of the lands

cessary to confirm such conveyance and security

and might be enjoined from paying plaintiff's
was taken. Ibid.

proportion of the purchase money to the lessee.

Breach that defendant did not register the bill
Liability of Arbitrator. See Negligence-

as a lis pendens according to 2 & 3 Vict. c. 11. 9.
Pappa v. Rose.

7, whereby the lessee was enabled to dispose of

the lease to another company and to receive the

purchase money, and plaintiff was deprived of

his share in it:-Held, that the declaration was
ASSIGNOR AND ASSIGNEE-Right of assignee to

good, as the bill in Chancery which prayed for
sue. See Marine Insurance.

an equitable lien against the intended pur-
chasers of the lease was a lis pendens, which

ought to have been registered under the statute,
ASSUMPSIT—Promise to marry on happening of and that having regard to the terms of the bill

contingency. See Breach of Promise. And see it was the duty of defendant as a solicitor to

have registered it, without any express request

on the part of plaintiff. Plant v. Pearman,
ATTORNEY AND SOLICITOR—enrolment of articles

Q.B., 169
of service of clerk : binding to a firm]-A clerk
entered into articles of clerkship by which ho suspension : practice where an attorney has
bound himself to serve a firm of attorneys con- been suspended by another court]-Where an
sisting of two partners :—Held, that the bind-

attorney has been suspended for a limited period
ing was valid, and the articles must be enrolled.

by order of one of the Superior Courts, the
Re an articled clerk, Q.B., 141

Court of Common Pleas will not adopt such

order by suspending, in like manner, the attor-
omission to renew notices for examination ney from practising in that Court, without ex-
and admission)-An articled clerk gave the amining the facts on which the order was made,
proper notices for examination and admission and exercising its own discretion in the matter.
as an attorney in Easter Term. He passed his Re Brutton, C.P., 58
examination in that Term, but did not apply In a case in which the Master of the Rolls ordered
for admission, nor did he renew his notices as an attorney to be suspended for a certain period,
required by R. (atts.) of Hilary Term, 1853, and the misconduct was such that he might hare
8. 6:-Held, upon an application in Trinity been struck off the roll for it, the Common Pleas,
Term to be allowed to renew the notices, so after reading the affidavits used before the
that he might be admitted during that Term, Master of the Rolls, ordered the attorney to be
plaintiff's promises which had been entrusted to
them for sale, the declaration alleged as special
damago that defendants “well knew that if
plaintiff did not obtain a reasonable price, the
bankruptcy of plaintiff would be the necessary
and inevitable consequence," and further, that
in consequence the breach of duty alleged,
plaintiff was adjudicated bankrupt. Defendants
pleaded the bankruptcy of plaintiff:-Held, on
demurrer, by BLACKBURN, J., MELLOR, J., and
LUSH, J., on the authority of Hodgson v. Sidney
(35 Law J. Rep. (N.s.) Exch. 182), that the
plea was good, that the cause of action passed
to the assignees in bankruptcy, and that do-
fendant's knowledge that plaintiff's bankruptcy
would follow from their breach of duty made no
difference ; HANNEN, J., doubting whether Hodg-
son v. Sidney was not distinguishable on that
ground. Morgan v. Steble, Q.B., 260

suspended from practising in that Court, not
only for the period ordered by the Master of
the Rolls, but until the further order of the
Court. Ibid.

action without authority: order to pay costs :
composition with creditors)-Where an attorney
brought an action, knowing he had no authority
from the plaintiff, and on judgment for the de-
fendant a rule was granted ordering him, the
attorney, to pay the defendant's costs, and then
such attorney, under 32 & 33 Vict. c. 71, entered
into a composition with his creditors,—Held,
that he was not discharged from such payment
as the case was one of fraud within 32 & 33
Vict. c. 71. s. 49. Jenkins v. Feraday, C.P., 152

BAILMENT. See Carriers. Detinue.

BaiLOR AND BAILBE. Soe Negligence-Fowler v.


BANKRUPTCY-set-off: mutual credit : exccutor :

mortgage in fee : looms in a mill]—Where
the occupier, who is also owner in fee, of a
mill containing looms nailed to the floor, mort-
gages the mill and fixtures in fee and after-
wards assigns all his effects to a trustee for
the benefit of his creditors, the mortgagee is, as
against the trustee, entitled to tho looms as
part of the mill. Longbottom v. Berry (39 Law
J. Rep. (N.s.) Q.B. 37), affirmed. Holland v.
Hodgson (Ex. Ch.), C.P., 146

notice of cquities] - Plaintiff, as trustee under
the Bankruptcy Act, 1869, of K. & Co.,
bankers, sued defendant for money lent, the
balance due upon his private account. De-
fendant had another account with the bank as
executor of A., and at the time of the bank-
ruptcy the balance on this account was in his
favour. Under the will of A. defendant was
both executor and residuary legatee, and at the
time of the bankruptcy he had assets in his
hands exclusive of the balance in the bank,
more than sufficient to provide for all bequests
which remained unpaid, and to leave a balanco
due to him as residuary legatee :-Held, that
he was entitled to set off the balance due to
him on the executorship account, since the
bank might have sued him in his own name if
he had overdrawn the account due to him as
executor, and the only effect of opening the
account as executor was to give notice that
there might be equitablo rights as against the
person opening the account, though in the
present case there was no suggestion of any
equity against defendant. Bailey v. Finch, Q.B.,

execution : county court adjudication : trad-
ing in London: claim by trustee under 32 f:
33 Vict. c. 71. s. 87: evidence]—The goods of
M. having been seized and sold under an exo-
cution, notice was duly served on the sheriff
under section 87 of 32 & 33 Vict. c. 71 of a
petition in bankruptcy against M. ; this peti-
tion was, under the abovo statute, preferred in
the G. County Court against M., as a gentleman
residing within the district of that Court, and
not residing or carrying on busiuess in the Lon-
don district, and alleged an act of bankruptcy
which would render even a non-trader liable
to be made bankrupt; no opposition was offered,
and M. was adjudged bankrupt and a trustee
appointed. In an interpleader issue between
the trustee and the execution creditor, to try
whether the former was entitled to the pro-
ceeds of the sale as trustee of a bankrupt
trader,--Held, by the majority (Bovill, C.İ.,
BYLES, J., and GROVE, J.) of the Court (dis-
sentiente BRETT, J.), that the trustee might rely
on the copy adjudication in the Gazette as con-
clusive evidence of the bankruptcy, and also
give evidence that M. was a trader in London
in order to shew that the goods were the goods
of a bankrupt trader within the above section
of the statuto. Revell v. Blake, C.P., 129

license in bill of sale to seize after acquired
property: extinguishment of principal debt]-
Where a bill of sale given to secure a debt
contains, together with an assignment of existing
property, words which amount to a license to
seize after acquired property, but which do not
amount to an equitable assignment of the latter,
such license is co-extensive with the debt, and
cannot be exercised after the debt has been
barred by the bankruptcy of the debtor. Cole
v. Kernot ; Thompson v. Cohen, Q.B., 221

vesting of cause of action in assignees :
special damage]-In an action against attor-
neys for breach of duty in failing to procuro
the best price for the equity of redemption of the

execution under 501.: seizure by sheriff:
sale after adjudication : creditor holding a secu-
rity]—Section 18+ of the repealed Bankrupt
Law Consolidation Act, 1849, is not re-enacted
directly or indirectly in the Bankruptcy Act,

Evidence. Death of mother before the
hearing at petty sessions, The Queen v. Armi-
tage, Q.B., 376; M.C., Vol. 42, 1873

1869. Therefore under the latter Act, when
the sheriff has, under an execution for less
than 501., seized a debtor's goods before any
act of bankruptcy, the execution creditor's claim
to be paid out of the goods is not defeated by
the debtor's subsequent bankruptcy, though the
sheriff do not sell till after the avljudication.
Such an oxecution does not require the pro-
tection of section 95, sub-section 3, which applies
only where an act of bankruptcy has been com-
mitted prior to the seizure. Slater v. l'inder
(Ex, Ch.), Ex., 66

BANKRUPTCY (continued)--bankrupt assignee of

lease : lease deemed to have been surrendered :
liability of lessee)- A lessee of a messuage and
premises for a term of years assigned the un-
expired residue to one who was afterwards ad-
judicated bankrupt under the Act of 1869. The
trustee in bankruptcy disclaimed the lease under
section 23 of that Act :-Held, that the lessor
could maintain an action on the covenants in the
lease against the lessee for the rent which be-
came due between the adjudication and the dis-

claimer. Smyth v. North, Ex., 103
Semble, per Martin, B., and Pigott, B., that the

Court of Bankruptcy having made no order as
to the possession of the property disclaimed,
this action would be maintainable for rent due
after the disclaimer; Contra, per BRAMWELL, B.

BILL OF EXCHANGE-collateral security: appro-

priation : equity)-On the 14th of September
P. & Co. purchased from H. a floating cargo of
maize, and the same day resold it to the defen-
dant. On the 4th of October P. & Co., accord-
ing to the custom of the trade, paid H. (who
retained the shipping documents) a deposit of
8831. on account of the cargo, and the same day
drew a bill on the defendant for that amount,
which the defendant accepted. P. & Co. there-
upon discounted the bill with the plaintiffs.
On the arrival of the cargo in Norember, P. &
Co., acting on the defendant's instructions, sold
the cargo for him to C., who paid H. the
balance due from P. & Co. on the first sale, and
received direct from H. the shipping documents.
There was then remaining in C.'s hands a
balance of 4151. due to the defendant. On the
2nd of December P. & Co. executed a deed of
inspectorship; on the 17th the bill for 8831.
was dishonoured at maturity; and on the 20th
the defendant filed in Dublin a petition for ar-
rangement with his creditors. Had P. & Co.
not suspended payment, they would hare been
entitled, according to the regular course of busi-
ness, to have appropriated the balance of 415l.
to the taking up of the bill; and it would also
have been their duty towards the defendant to
have done so and to have retired the bill. C.
having paid the 415l. into Court,-Held, that
the money paid in ought to be applied towards
taking up the bill, and ought not to be paid
to the defendant or his trustees. The Bank of
Ireland v. Perry, Ex., 9

annulling of bankruptcy on appeal : mutual
crcdits, debts or dealings: reverting of pro-
perty to bankrupt]-An adjudication in bank-
ruptcy under the Act of 1869 having been
made against defendant, his trustee in bank-
ruptry sold part of the estate, and paid the pro-
ceeds into a bank to an account which he kept
as such trustee. The bank knew the circum-
stances, and also that an appeal against the ad-
judication was pending. The bank afterwards
became bankrupt, and subsequently the adjudi-
cation against defendant was annulled by the
Court of Appeal, on the ground that no act of
bankruptcy had been committed. The Court
made no order under section 81 as to the resting
of defendant's property. The trustee in bank-
ruptcy of the bank having brought an action
against defendant for a debt due to the bank
before defendant's bankruptcy;--Held, affirming
the judgment of the Court below, that defend-
ant could set off equitably the money paid by
his trustee into the bank. Bailey v. Johnson
(Ex. Ch.), Ex., 211

Order of Discharge. See Attorney and
Solicitor-Jenkins v. Feraday.

BILL OF LADING-construction of as to carriage

by steam ship]-Goods were shipped under a
bill of lading which commenced, “Shipped in
the steamship Hibernia . . . . with liberty to
call at any ports, in or out of the route, to
receive and discharge coals, &c., and to tranship
the goods by any other steamer.” The vessel
had only an auxiliary screw, and was propelled
by steam during a small part of the royage
only, which lasted for about double the time
which would have been taken by an ordinary
steamer. In an action for delay in delivering
the goods, the judge refused to direct the jury
that the contract in the bill of lading was for
& voyage by steam, but left to them the ques-
tion whether the voyage was performed in a
reasonable time, having regard to the fact that
the vessel had only an auxiliary screw :--Held,
that the jury had been misdirected, as it was an
implied term of the bill of lading that the
royage should be wholly or principally by steam.
Fraser v. The Telegraph Construction and Main-
tenance Company, Q.B., 249

See Debtor and Creditor.

BARON AND FEME. See Husband and Wife.

BASTARDY-Appeal. Second Order. Jurisdiction

of Justices. R. v. Glynne, Q.B., 57; M.C., 58

See Ship and Shipping.

BREAD—Adulteration of, by Alum. Conviction.

Guilty Knowledge – Core v. James, Q.B., 80;
M.C. 19

BROKER. See Negligence. Principal and Agent.


BILL OF SALE-residence of grantor: sufficiency of

description of in affidavit]-In an affidavit tiled
with the copy of a bill of sale, it was sworn that
the said bill of sale was made or given on the
5th day of December, 1870, being the day of the
date thereof: “that I was present, and did see
the said Isaac Anthony sign and execute the
said bill of sale, and that the said Isaac An-
thony resides at “Dyneror Lodge,' and is an
auctioneer." It was also sworn in the affidavit,
that “the paper writing hereto annexed is a
true copy of a bill of sale," mado or given by
Isaac Anthony, &c. The paper writing thus re-
ferred to and annexed commenced : “ This in-
denture, made the 5th day of December, 1870,
between Isaac Anthony, of Dynevor Lodge, in
the parish of Llanartliney, in the county of
Carmarthen, auctioneer, of the one part, and
David Jones, of Wern, in the said parish of
Llanarthney, in the county of Carmarthen,
gentleman, of the other part:" Held, that
although, if the affidavit was taken alone, the
description of the residence of the grantor
would be insufficient, the defect might be cured
by reference to the bill of sale.

Jones ۲.
Harris, Q.B., 6

- description of residence and occupation of
assignor and attesting witness)-S., who was
a clerk in the Admiralty, was described in
a bill of sale given by himself and in the affi-
davit filed pursuant to 17 & 18 Vict. c. 36. s. 1,
as a "gorernment clerk," and the attesting wit-
ness, of whose occupation there was no direct
evidence, was described as an “insurance clerk:”
---Held, that the descriptions were sufficient.
Grant r. Shaw, Q.B., 305

Canal-mines held as a separate tenement: right

of owner in working mines under canal : liability
of canal company] - A canal was constructed
by a company under a local Act, which enacted
that if any proprietor of mines under the canal
should be desirous of working them, he should
give three months' notice to the company, who,
if they failed to inspect the mines within thirty
days, should be considered as permitting them
to be worked, and if, on inspection, they re-
fused permission, they should be compelled
purchase the same, with a proviso that in work-
ing the mines “no injury be done to tho
navigation, anything therein contained to the
contrary notwithstanding." By the compensa-
tion clauses of the Act, compensation is pay-
able for damage which should be at any time or
times whatsoever sustained by the owners of
lands, &c., by reason of making, repairing, or
maintaining the canal, or by the flowing, leak-
ing, or oozing of the water over or through the
banks of the canal (if complaint be made within
six months of the injury). Plaintiffs (the mine
owners) gare notice of their intention to work
the mines within the prescribed distance of the
canal. Defendants (the canal company) did not
inspect the mines, and refused to purchase them.
Plaintiffs proceeded to work the mines, the canal
being then in good order and water-tight.
Plaintiffs worked the mines in the usual manner,
and the effect of such working was to crack the
bed of the canal, and to allow the water to flow
into and cause damage to the mines. De-
fendants during the working of the mines took
all proper precautions to keep the canal water-
tight:-Held, that defendants were not respon-
sible for the damage to the mines, as there was
no proof of any negligence on their part, or of
anything done in excess of their statutory power
--HANNEN, J., dissenting, on the ground that
it was the intention of the Legislature to pre-
vent any interference with the ordinary working
of the mines in case the defendants did not
exercise their option of purchasing them; and
Semble, by Cockburx, C.J., that the inability to
work the mines without danger of their being
flooded by the canal, was a damage for which
plaintiffs were entitled to compensation under
The local Act. Dunn v. The Birmingham Canal
Company, Q.B., 121

License in to seize after acquired property.
See Bankruptcy-Cole v. Kernot.

And see
Principal and Surety.

Bond—ale, porter, or spirit merchant : brewer) -


CARRIERS negligence as bailees : dog :

The traveller for a porter, ale, and spirit mer.
chant bound himself by a bond not to "travel
for any porter, ale, or spirit merchant, as agent,
collector, or otherwise," within a certain distance
of the town where the merchant carried on his
business. The traveller travelled within the
distance as agent and collector for a firm
of brewers in the same town, who brewed and
sold only beer, ale, and porter, and sold no
liquor but of their own manufacture :-Held,
that the brewers were not porter, ale, or spirit
merchants within the meaning of the boud.
Josselyn v. Parson, Ex., 60

Brraci or PROMISE—to marry on a contingency:

absolute refusal before happening of the event] —
An action for breach of promise of marriage may
be maintained against a man who has promised
to marry a woman after the death of his father,
and has afterwards absolutely declared his
intention never to fulfil his promise, although
his father be living at the time the action is
brought. Frost v. Knight (Ex. Ch.), Ex., 78

tributory negligence]—R. delivered a dog to
a railway company for carriage on their rail.
way. The company received it, not as com-
mon carriers, but as ordinary bailees. The
dog was delivered with a collar on it and a
strap attached thereto. During the journey

there was a change of trains; for security
during the interval of change a serrant of the
company fastened the dog up by means of the
strap, and the dog slipped through the collar,
got on to the railway, and was killed :-Held,
that the company were not liable. North
Eastern Railway Co, v. Richardson, C.P., 60

Carriers (continued)-damage to live stock : vice

delivery, to have the goods thrown on his hands.
The company did not deliver the goods till
after the timo stipulated in the contract, and
the consignees refused to receive them :-Held,
that the measure of damages to which the
company were liable was the difference between
the market price of the goods on the day when
they ought to have been delivered and on the
day on which they were delivered, and any in-
cidental expenses to which the consignor may
have been put in finding a customer and re-
selling the goods; but that the company, under
the notice which they had received, were not
liable to repay to the consignor the difference
between the exceptional price mentioned in the
contract and the price of resale. Ibid.

by barge : common carrier" : inland navi-
gation]-The owner of a lighter, hoy or fiat
which he uses regularly for carrying therein
for hire from place to place on the banks of
the Mersey the goods of such persons as choose
to employ him, though not plying regularly
between fixed termini, is a common carrier,
and may therefore, without negligence on his
part, be liable for the loss of goods delivered to
him for carriage and lost whilst under his charge,
notwithstanding that all the goods carried on
the journey when the loss occurs belong to one
and the same person. The Liver Alkali Co. v.
Johnson, Ex., 110

CASE--Action on the case.

See Damage.

CHANGING ORDER. See Judgment Debt.

of animal : liability without negligence]—The lia-
bility of a railway company as common carriers
of live animals as well as of goods is, in the
absence of any negligence, subject not only to
the exemption of the act of God or the Queen's
enemies, but to the further exemption of any act
wholly attributable to the development of a
latent inherent vice in the animal itself. The
Great Western Rail. Co. v. Blower, C.P., 268

damage to live stock: cause of accident : onus
of proof )-A saddled horse, delivered to a rail-
way company to be carried on a journey, was
placed by their servants in a proper horse box in
The usual manner. The saddle was left on the
horse according to the usual custom in such cases
with the stirrups hanging down. At the journey's
end the horse was found to be injured in the fore-
arm and fetlock. The horse was proved to be
free from vice, and it was shewn by the de-
fendants that nothing unusual occurred to the
train during the journey :--Held, by MARTIN, B.,
and BRAMWELL, B., that, in the absence of
further proof of the cause of the mischief, the
company were not liable. Contra, by Pigott, B.,
on the ground that, in order to relieve them-
selves from their common law liability, the
company must shex affirmatively the mischief
arose from the act of the animal itself. Kendall
v. The London and South Western Railway
Company, Ex., 184

late delivery of goods : non-acceptance of
goods by consignee : measure of damages] – A
common carrier is liable for the late delivery
of goods received by him in the amount of
damages which may reasonably be expected to
arise out of the breach of an ordinary contract;
but he is not liable to an unusual amount of
damages, arising out of exceptional circum-
stances, unless distinct notice is given to the
carrier by the consignor before the delivery, of
the exceptional circumstances touching the de-
livery of the goods. Horn v. The Midland Rail.

Co., C.P., 264
A consignor, having a contract with his consignees

for the delivery to the consignees of goods by
a particular day at an exceptional price, with
power in the consignees to reject the goods and
rescind the contract if not performed to the
day, delivered to a railway company goods
within the contract, in time for delivery to the
consignees within the time mentioned by the
contract, and at the timo of delivery the com-
pany had notice that the consignor was under
a contract to deliver by the time mentioned in
the contract, and was liable, in case of late

CHARTER-PARTY-blockade of port of destination:

dissolution of contract: "restraint of princes" :
liability of shipowner]—In an action for breach
of a charter-party, by which it was agreed that
defendants' vessel should proceed to a port of
loading, and after loading a cargo convey it to
a foreign port, the act of God, Queen's enemies,
restraints of princes and rulers, fire, and all and
every other dangers and accidents of the seas
... during the voyage excepted, it was pleaded
that before breach there was a war between
the country of the port of destination and
another country, so that the performance of the
charter-party became illegal, and defendants re-
fused to perform it :-Held, that the plea was
good, as the blockade was, within the meaning
of the exception, "restraints of princes,” and
that defendants were not bound to have pro.
ceeded to the port of loading, or to have waited
in anticipation of the removal of the blockade,
in the absence of anything to lead to the in-
ference that it would be removed within a
reasonable time. Geipel v. Smith, Q.B., 153

limitation of liability by charterer: delay
in loading cargo]-Declaration on a charter-
party, by which it was agreed that defendant
should load plaintiff's ship in regular turn,
and that the ship when loaded should pro-

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