ASSAULT. See BROTHER, 1. 1. Assault by a master on his servant. Justification, molliter manus, to remove him from a house of which the master was possessed:Held, that evidence of another servant of defendant's having the key to let himself in to work, nobody living in the house, is sufficient evidence of the defendant's possession as against the plaintiff, to support the plea. Hall v. DaPage 33 vis. 2. In an action of assault, what was said by the magistrate to the plaintiff at a previous investigation of the circumstances before him, cannot be received in evidence at the trial on the part of the defendant, unless it drew any observation in reply from the plaintiff. Child v. Grace. ASSIGNEE. 193 An assignee of a lease under the insolvent debtor's act is entitled to a reasonable time in which to decide whether he will accept the lease or not; and during that time he may take such steps as he may think necessary for the purpose of trying to render the property productive. Lindsay v. Limbert. 526 ASSUMPSIT. See DAMAGES, 1.-WITNESS, 8. 1. The City of London Gas Light and Coke Company may maintain assumpsit for gas supplied to the occupiers of a wharf; and it is not necessary in such a case that there should have been any contract by deed executed by the company. The City of London Gas Light and Coke Company v. Nicholls. 365 2. The Southwark Bridge Company may maintain assumpsit for the use and occupation of premises held under them. The Southwark Bridge Company v. Sills. 371 ATTESTATION. See DEED, 1.-WILL, 2. ATTORNEY. See NEGLIGENCE, 1.-PRACTICE, 6.WITNESS, 2. 1. A charge for searching whether satisfaction of a judgment was entered, or whether an issue was entered, will not constitute an attorney's bill a taxable bill, so as to make it necessary to deliver it signed before action brought. Fenton, Gent., One, &c. v. Correia. Page 45 2. If an attorney has the money of a client in his hands, and pays such money to the credit of his private account at his banker's, and that banker fail, he will be liable for the amount to the client, although he does so bona fide, and have a large sum of money of his own at that banker's. His proper mode would be, to open a new account with a banker in his own name, but to the credit of A. B.'s estate. Robinson, Clerk, v. Ward, Gent., One, &c. 59 3. In an attorney's bill, it is not sufficient to charge the costs of an action brought for the now defendant by the plaintiffs as attorneys, at one sum in the lump, although the costs in that action had been taxed at that sum as between party and party. Drew and Others, Gents., Three, &c. v. Clifford. 69 4. In an action on an attorney's bill, it is sufficient, to bring the bill within the stat. 2 Geo. 2, c. 23, that some of the items upon the face of them are of such a nature as to shew that a cause must have been depending in some Court; and it is not necessary to prove aliunde that there was a cause depending. Watt v. Collins, Page 71 5. An attorney is not to lose the amount of his bill on account of any error in the execution of his duty, being such an error as a cautious man might fall into; but if the charges contained in his bill are brought upon the client by his inadvertence, he cannot recover them in an action. Montriou, Gent., v. Jefferys, 113 6. If an attorney, having given credit to a person for the costs of a suit, put forward such a person as a witness, and have him examined on the trial of the cause without a release (no objection being taken), he cannot afterwards maintain an action against him for the recovery of such costs.-If an attorney's clerk give a receipt for money on account of a different person from that to whom he gives credit, to enable such person to deceive others, such act of the clerk will not affect the master's right to recover the remainder against such person, though, if the attorney had done it himself, it would be good ground for nonsuit. Williams, Gent., One, &c. v. Goodwin. 257 AUCTION. If the owner of goods sold by auction employs a person to puff at the sale, he cannot recover against a bona fide purchaser, whose bidding was enhanced by such puffing. Crowder v. Austin, 208 AUTREFOIS ACQUIT. 1. If in a plea of autrefois acquit the prisoner were to insist on two distinct records of acquittal, his plea would be bad for duplicity. But semble, that if he insisted on the wrong, the Court would, in a capital case, take care that he did not suffer by it. Rex v. Sheen, 634 2. If the prisoner could have been legally convicted on the first indictment, upon any evidence that might have been adduced, his acquittal on that indictment may be successfully pleaded to a second indictment; and it is immaterial whether the proper evidence was adduced at the trial of the first indictment or not. Ibid. 3. Form of plea and replication. Ibid. AVERMENT. See AGREEMENT, 3.-WARRANTY, 4. AWARD. When a cause is referred to arbitration, the mode of conducting it must be left to the arbitrators; and if they, after the first or second meeting, exclude both the parties and their attornies, and examine witnesses privately, at their (the witnesses') houses, it seems that such conduct is no good ground of objection, provided it does not proceed from corrupt motives. At all events, if either party would take advantage of it, he must give notice at the time, that he intends to rely on it as an objection; and if he lie by and suffers other meetings to take place, and when the arbitrators are ready to make their award, revokes his submission, he is liable in an action to the other party, who was desirous of having the benefit of the award. Hewlett v. Laycock, BAIL. See ARREST, 1. BAIL BOND. See ARREST, 1.-PLEADING, 1. 574 BANK NOTES. See CHECK, 2.-PRACTICE, 7. 1. If a banker, in a small market town, change a 500l. bank of England note for a stranger, without any further enquiry than merely asking his name, he is liable in trover to a party from whose possession such note had been unlawfully obtained; and the question in such case is not, whether there was an honest holding on the part of the defendant, but whether under the circumstances there was a want of due caution. The plaintiff, however, in such case, must shew that he has done every thing which in reason he ought. A dividend warrant was paid into a banker's by a customer; the banker sent it by a porter of the house to the Bank of England, to get cash for it; he returned without the money, saying he had been robbed of it: Held, (the porter himself being dead) that proof of those facts was sufficient evidence of possession on the part of the bankers, to enable them to maintain trover for a 500l. note, part of the money, against a party into whose hands it had come, under circumstances which would not entitle him to retain possession of it. Snow v. Peacock, Page 215 2. The banker of one of the parties in a cause is bound to answer what such party's balance was on a given day, as it is not a privileged communication. Loyd v. Freshfield, 325 3. In actions for money had and received, brought by the owners of lost bank notes, against those who may have got them into their hands without giving value, it is not absolutely necessary for the plaintiff to give direct evidence of the loss. It is sufficient if such circumstances are shewn as satisfy the jury of the fact of the loss. Holiday v. Sigil, Page 176 4. In an action of trover, to recover bank notes belonging to the plaintiffs, which the defendants had taken without using due caution, if it appear that the plaintiffs' porter had different securities for money, to get turned into bank notes and cash; and that he came back with the odd cash, but alleged that the notes, which were the remaining proceeds of the securities, were stolen, it will be for the jury to say, whether the securities were stolen from him before they were cashed, or whether the bank notes were stolen afterwards, and when they were the property of the plaintiff's in his hands. If the latter, it is not material whether the porter purloined the bank notes himself, or was robbed of them by thieves. If the defendants received notice of the loss, that notice is not to be considered in point of law as operating as a notice for all time: and unless such notice be renewed, it will be for the jury to say, whether, if the defendants heard no more of the matter for a year or more, they might not fairly conclude that the notes had been got back. A mistake of the date of one of the notes in such a notice (the number and amount being correctly stated) will not avail the defendants, unless they were misled by it. And it is no answer to an action of this kind that the defendants were always in the habit of changing notes for strangers, without asking the names, &c. of those who brought them, nor even that other country bankers did so; provided the jury are satisfied that the defendants took those notes, under such circumstances as would awaken suspicion in the mind of a reasonable man acquainted with business. Snow v. Leatham, 314 BANKRUPT. Sec DELIVERY-ORDER, 1.-DISTRESS, 2. NOTICE, 3.-SIGNATURE, 1.WITNESS, 8. 1. If a trader, who is in the rules of the King's Bench prison, come to his own shop out of the rules, and is there denied to a clerk of a creditor, it appearing by the evidence that the shop was shut up for the evening, but at an earlier hour than usual, it is proper to be left to the jury to say, whether the bankrupt had himself denied to delay his creditor, or whether it was because the clerk called at an unreasonable hour. Hughes v. Gillman, Page 32 2. If it be necessary to prove a good petitioning creditor's debt on the 20th of May, it is not sufficient to shew that, on the 29th of January previous, a sum of 100l. was due, and that there were receipts and payments afterwards; but it must be proved, that on the specific day as much as 100l. was owing. Gresley v. Price, 48 91 3. A debtor to a bankrupt, when sued by his assignee, cannot set up the stat. of limitations as an objection to the petitioning creditor's debt. Mavor v. Pyne, 4. An allegation, stating that, before the execution of a certain release, the party who executed it "became and was a bankrupt," is supported by proof of his having executed it after an act of bankruptcy, which was not followed by a commission for nearly two years, it appearing that the execution took place while the party was in prison. Ibid. 5. If a debtor to a bankrupt estate, on being applied to by a person whom he knows to be the collector * of the debts for the assignee, says, "I will call and pay the money," such promise is an admission of the right of the assignee, and renders it unnecessary in an action for the 66 money to give the usual proofs in support of the commission. Pope v. Monk, Page 112 6. The messenger under a commission of bankrupt may recover from the petitioning creditor his fees for his services, before the party be declared a bankrupt, though the party was since declared a bankrupt, and the messenger's bill ordered by the commissioners to be paid by the assignees out of the esBurwood v. Kant, 123 7. A party, to become bankrupt, must be a trader at the time of the petitioning creditor's debt; but if that was contracted while he was a trader, and he leave off trade, he may still become a bankrupt. Doe dem. Barraud v. Lawrence, 134 tate. 8. If one procure orders for goods, having no stock, but buying them from those who have, he making out bills to his customers in his own name, and being himself debited by the person he buys of, that is a trading within the bankrupt laws; but if he procure orders for another, and is by that person paid a commission, the other person sending the goods to the customers, this was not a trading within the bankrupt laws antecedent to the stat. 6 Geo. 4, c. 16. Ibid. 9. If a person against whom a commission of bankrupt is sued out, apply to a judge at chambers, and obtain his discharge from custody, on the ground that his detaining creditors have proved under the commission, such person is, by so doing, precluded from disputing the validity of the commission in a court of law, but may apply to the great seal. Watson v. Wace, 171 10. An agreement was made, by which the funds of a bankrupt's estate were assigned to a certain person, who was to secure 5s. in the pound to all the creditors; in consequence of which the proceed ings under a commission which had issued, were to be stayed. The agreement contained a clause making the arrangement void, if any creditor, whose debt was above 101., should refuse to come in. A deed was afterwards prepared, in which however a similar clause was not inserted. The deed contained a release, but recited the circumstances as a consideration:- Held, that promissory notes given in pursuance of the agreement to a creditor, who executed the deed, could not be sued upon by him, it appearing that the commission went on; and the funds were withdrawn from the hands of the maker of the notes, in consequence of the refusal of one of the creditors to execute the deed and enter into the arrangement. Enderby v. Corder, Page 203 11. If a trader deny himself to a person, who desires that he may be told that a certain bill of exchange, mentioning the parties to it, is dishonoured, and that he wishes to see him in consequence, such denial is an act of bankruptcy, without further proof of the party's being a creditor, if the jury believe that the bankrupt so considered him. Bleas by v. Crossley, 213 12. If one lend another a check for 100l., such check is not evidence of a good petitioning creditor's debt, unless it be proved that it - was paid. Ibid. 13. A trader stopped payment generally, on the 5th of January, and on the evening of the 6th sent a 1007. note to a particular creditor, saying, it was to help him over his payments:-Held, that such trader afterwards becoming bankrupt, his assignees might recover the money in assumpsit; although it appeared that at the time of payment a bill for a larger amount was becoming due, which had been accepted by the creditor for the bankrupt's ac commodation, and for which he had promised to provide; and that the creditor could not be considered as the agent of the bankrupt to pay the money for the bill, because he being a party to it the payment operated pro tanto in his discharge. Guthrie v. Crossley, Page 301 14. In an action by the assignees of a bankrupt, communications made by the bankrupt to his attorney may be given in evidence to prove the act of bankruptcy, if the bankrupt consents; and it does not lie in the mouth of the defendant to take the objection to their disclosure. Merle v. Moore, 275 15. A warrant under the stat. 6 Geo. 4, c. 16, s. 29, to search for the goods of a bankrupt in the house of a third person, is not valid, if granted to any one except the messenger under the commission. Sly v. Stevenson, 464 16. If A. let a house to B., with a covenant that the lease shall determine on B. committing any act of bankruptcy on which a commission of bankrupt should issue. And by another deed of the same date A. grants the use of the furniture to B., in like manner, and with a similar covenant, to allow A. to resume the possession of the furniture on the commission of an act of bankruptcy. If B. become bankrupt, and the Jury find that B. was the reputed owner of the furniture, it will pass to the assignees notwithstanding these covenants. And if it be proved on the one side that several of the servants of B., and many of his customers knew that the goods belonged to A., and on the other side several of B.'s creditors prove that they considered the goods to belong to B., and gav him credit on the faith of them; and that he acted as master of the house, &c.; it will be for the Jury to say, whether B. was held out to the world as the owner of the |
