IX. Replication de Injuriâ.

against him upon the same bill (setting out the declaration in such former action),—that the defendant pleaded to the count on the bill, that, after the acceptance and endorsement thereof, and whilst the plaintiffs were the holders, and before it became due, it was agreed between the plaintiffs and the defendant, that, in the event of the bill being dishonoured, the plaintiffs should receive from the defendant a warrant of attorney for the amount of the bill, with interest and expenses, and that judgment should be entered up thereon, but that no execution should issue upon such judgment until the 25th of December, 1848, and that the time for payment of the bill should be extended until that day; that the bill became due on the 22d of September, 1847, and that the defendant was ready and willing to give and execute, and then tendered and offered to the plaintiffs, his warrant of attorney, pursuant to the agreement, and requested them to accept the same, and to extend the time of payment of the bill until the 25th of December, 1848, but that the plaintiffs refused and neglected so to do, and, in violation of the agreement, sought to enforce payment of the bill; that the plaintiffs replied de injuriâ to such plea; and that the defendant obtained judgment in the said action. The plea then proceeded to aver the identity of the bill and the causes of action in both cases.

To this plea the plaintiffs replied, that they did extend the time for payment of the bill until and after the said 25th of December, 1848, and that they had not, since the said recovery in the said plea mentioned, sought to enforce the payment of the bill, which still remained unpaid, and that the defendant had not given or executed to the plaintiffs a warrant of attorney :

Held, on demurrer to the replication, that the plea, though containing unnecessary details of the pleadings in the former action, was a good answer to this action; and that the replication was bad. Overton v. Harvey, 324

VIII. New Assignment.

To trespass for breaking and entering the plaintiff's dwelling-house, ejecting and expelling the plaintiff and his family therefrom, and seizing his goods, the defendants pleaded, "as to the trespasses in and to the dwelling-house, and seizing and taking the goods," liberum tenementum. The plaintiff traversed the libe. rum tenementum, and new assigned the expulsion :-Held, on demurrer, that the new assignment was bad, the pleas justifying the expulsion, as well as the breaking and entering of the dwelling-house and the seizure of the goods. Meriton v. Coombes, 787

of two bills of exchange, the defendants pleaded, that the bills were accepted by them and one B., and not by them alone; that, before the bills became due, and before the delivery thereof to the plaintiff, they were and continually from the time of their aeceptance had been in the hands of the drawers for value, and had not been during all that time delivered over to the plaintiff by the drawers, and so continued from the times of their becoming due until the making of the agreement after mentioned; that, whilst the bills were so in the hands of the drawers, and before the delivery thereof to the plaintiff, it was agreed between the drawers and the defendants and B., that, in consideration of the defendants and B. paying the drawers 500. in settlement of their accounts, the drawers engaged to accept their (the defendants' and B.'s) dividend of 2s. 9d. in the pound on (amongst others) the bills in question, and which the drawers bound themselves to deliver to the defendants and B. within oLe month, receiving the said dividend on each acceptance as it should be delivered up, the defendants and B. being at liberty to pay the said composition on the said bills at any time within one month, and to tender the same at a certain place; that a penalty of 5007. was to be paid on default by either side; that the 5001. were paid by the defendants and B. the drawers in settlement of the said accounts, and the composition duly tendered; that the drawers refused to accept the dividends tendered, and failed to deliver up the acceptances, but afterwards, in fraud and violation of the agreement, delivered the bills declared on to the plaintiff; and that the plaintiff took, and held the bills with notice of the premises :-

Held, that, assuming the plea to contain a defence to the action,-which the court inclined to think it did not,-it was well put in issue by the general replication de injuriâ.

To a similar plea, alleging the agreement to have been made between the plaintiffs, through the drawers as their agents, and the defendants and B., and averring the payment of the 500l. and the tender of the dividend to the drawers, with notice to the plaintiff,—but not alleging that the agreement to take the dividend was accepted by the plaintiff in satisfaction or substitution of the contract on the bills, the plaintiff replied, "that it was not agreed by and between the plaintiff, by and through the drawers as their agents, and the defendants, in manner and form as in the plea alleged:"

Held, that the plea was bad in substance. Whether the replication was good, quære. Buttigieg v. Booker, 689

I. Liability of Company under 8 & 9 Vict. c. 16, 8. 65.

By the 65th section of the Companies Clauses Consolidation Act, 1845,-8 & 9 Vict. c. 16,it is provided that all the money raised by the company, whether by subscriptions of the shareholders, or by loan, or otherwise, shall be applied, firstly, in paying the costs and expenses incurred in obtaining the special act, and all expenses incident thereto, and, secondly, in carrying the purposes of the act into execution :-Held, that the expenses of obtaining the special act were recoverable against the company in an action of debt. Hitchins v. The Kilkenny and Great Southern and Western Railway Company, 536

The court refused to compel the plaintiff to give security for costs, upon affidavits stating that he was in insolvent circumstances, and had mortgaged or assigned to a third party all his interest in the subject-matter of the action. Parker v. The Great Western Railway Company, 766

SHERIFF.

Extent of Liability for Escape.

1. The amount of fine to be imposed on the sheriff for the negligent escape of an execu

2. The declaration stated, that the defendant was owner of a ship bound for Bombay, and received on board the same divers goods and merchandises, to wit, &c., then shipped on board thereof by J. S., to be carried by the defendant to Bombay for freight; that the master signed and delivered to J. S. two bills of lading, acknowledging the shipment of the goods, and undertaking to deliver them at Bombay, to the order of J. S. or to his assigns, for certain freight; that, at the time of the shipment of the goods, and of the signing and delivering of the said bills of lading, there was, and is, a custom amongst merchants, traders, and shipowners at London and Bombay, that, when goods are shipped for conveyance on board ship for freight, and for and relating to which goods a bill of lading is signed and delivered to the shipper by the master, such goods are deliverable at the place in that behalf therein mentioned, by the master to the bonâ fide holder, endorsee, and assign of the bill of lading, on production thereof by him, according to the terms thereof, and that the duty of the owner of such ship by whose captain and servant such bill of lading hath been so signed and delivered, is, to deliver the goods at the said place to the bona fide holder, endorsee, or assign of such bill of lading, on production thereof by him, according to the terms thereof; that J. S., upon the delivery to him of the said bills of lading, bona fide, and for valuable consideration, endorsed, assigned, and delivered the said bills of lading to the plaintiff, as a security for moneys advanced to J. S.; that the plaintiff then became and was, and still continued to be, the bona fide holder and endorsee and assign of the bills of lading, and of the said goods, and lawfully entitled to the possession of the bills of lading and of the

said goods; that the freight, &c., were duly paid in London; that the ship sailed for Bombay with the goods on board, and it became the duty of the defendant according to the terms of the bills of lading and the custom, to deliver the goods to the bond fide holder and endorsee and assign of the said bills of lading, according to the terms of the said bills of lading and the custom of merchants in that behalf; yet, that, although the ship arrived at Bombay, having the goods on board, and although the plaintiff was the bonâ fide holder and endorsee, and lawfully entitled to the said bills of lading, and was the assign af the said bills of lading, and of the said goods, according to the terms of the said bills of lading, and according to the custom of merchants in that behalf, and lawfully entitled to the possession of the goods, on production of the said bills of lading, the defendant, wrongfully, and contrary to the terms of the said bills of lading, and contrary to his said duty, and to the custom of merchants in that behalf, delivered the goods to other persons, to the plaintiff unknov.n, not being the bona fide holders or endorses or assigns of the said bills of lading, and not to the plaintiff, or any person on his behalf,whereby the goods were lost to the plaintiff, &c.:-Held, that the declaration was bad in substance,-bad, as a declaration in case, as founded upon a supposed breach of duty arising out of a contract not by law transferable; and bad as a count in trover, as it did not allego a conversion, or state any facte which amounted to a conversion.

Ib.

3. The defendant pleaded, that J. S. was the agent of M. & Co., merchants at Bombay, and in the habit of receiving consignments, and purchasing goods in London on their account; that the plaintiff was employed by J. S., as a broker, to purchase and ship, aud dia purchase and ship, the goods in question for M. & Co., in J. S.'s name, under the bills of lading in the declaration mentioned; that the plaintiff sent an invoice to J. S., and gave him notice of the shipment in order that he might advise M. & Co. of the purchase and shipment, and transmit then a copy of the invoice, which invoice J. S. did send out to M. & Co., with a letter of advice of the shipment; that, upon the shipment, the bills of lading were delivered by the master to the plaintiff as agent for J. S.; that the plaintiff did not deliver the bills of lading to J. S. nor did he transmit the same, or suffer J. S. to transmit them to M. & Co.; but that he, after the ship had proceeded on her voyage with the goods on board, fraudulently procured J. S. to endorse the bills of lading, for the purpose of securing a debt alleged to be due from J. S. to th plaintiff; that, upon the ship's arrival at

Bombay, the master, during the space of four months, used all reasonable diligence to discover the holder, endorsee, or assign of the bills of lading, but was unable to do so, and there was during all that time no person ready at Bombay to produce the bills of lading and receive the goods; and that, at the expiration of that time, the vessel being about to leave Bombay, and M. & Co. producing the invoice and letter of advice of the shipment so sent to them by J. S., and demanding the goods, the master delivered the goods to M. & Co.:-Held, that the plea was bad. Howard v. Shepherd, 297

SPECIAL JURY. See PRACTICE, IV.

SPECIFICATION.

See LETTERS PATENT.

STAMP.

On Agreement.

A., the manager of a theatre, proposes to B., an actor, an engagement at 21. per week, determinable by a month's notice. B. performs under this proposal. Notice is given by letter to B. to determine the employment, unless B. will consent to a reduction of salary. In a third letter, A. writes, "I have received your letter, and upon reconsideration, will give you the same terms, 21., for the summer season:"-Held, that the first and third letters contained merely proposals, and that as no agreement was constituted between the parties until those proposals had been expressly accepted, or tacitly acquiesced in, by B., the correspondence was admissible in evidence without an agreement stamp. Hudspeth v. Yarnold,

STOCK.

625

of the rooms to the office of the official assignee, where it is left with a clerk, who is told that it is the key of the rooms which A. had occupied. A. immediately quits possession, and no further communication takes place. Held, not to amount to a surrender by act and operation of law. Cannan v. Hartley, 634

TIME.

Computation of,-See BANKRUPT, IV. 1.

TOTAL LOSS.

See INSURANCE, II.

TRESPASS.

Plea of Justification.

1. Liberum Tenementum.]-To trespass for breaking and entering the plaintiff's dwelling-house, ejecting and expelling the plaintiff and his family therefrom, and seizing his goods, the defendants pleaded, "as to the trespasses in and to the dwelling-house, and seizing and taking the goods," liberum tenementum. The plaintiff traversed the liberum tenementum, and new assigned the expulsion :-Held, on demurrer, that the new assignment was bad, the pleas justifying the expulsion, as well as the breaking and entering of the dwellinghouse and the seizure of the goods. Meriton v. Coombes,

787

2. Suspicion of Felony.]-In trespass for false imprisonment, a plea justifying the apprehension of the plaintiff on suspicion of felony, set out various circumstances of suspicion, and, amongst others, stated a conversation alleged to have been had by the plaintiff with one A. At the trial, the whole of the plea was proved, except that the conversation alleged to have been had by the plaintiff with A., was had with B.

In leaving the case to the jury, the judge told them they must exclude from their consideration the statement as to the conversation with A., and say whether the facts which were proved, and which were known to the defendant at the time he caused the plaintiff to be apprehended, were sufficient to cause a reasonable and cautious man, acting bond fide, and without prejudice, to suspect the plaintiff of the offence charged :

Held, a misdirection,-inasmuch as it was leaving to the jury what it was the province of the judge to determine. West v. Baxendale,

And see COVENANT, II.
TRESPASS, VI. 2.

UNSATISFIED JUDGMENT.

See COUNTY COURT, II. 3.

141