plaintiff had received the bill fraudu-
lently and without value, evidence was
offered to shew that the defendant had
been defrauded of it, that one H., the
person from whom the plaintiff received
it, had, in the year 1847, stood in the
dock at the Old Bailey, that he retired
thence, and was seen no more at large
for eighteen months, and that the
plaintiff had admitted that he "had
known H. for a considerable time :
Held, no evidence to go to the jury,
that the plaintiff was aware of H.'s
conviction or disreputable character.
Berry v. Alderman, 674.
[Upon a second trial, the defendant
obtained a verdict upon both issues,
and retained it. Ed.]
BOTTOMRY.
See SHIPPING, II.
In driving Carriages.]—1. A master
is responsible for an injury resulting
from the negligence of his servant
whilst driving his cart or carriage, pro-
vided the servant is at the time engaged
in his master's business, even though
the accident happens in a place to
which his master's business did not call
him: but, if the journey upon which
the servant starts be solely for his own
purposes, and undertaken without the
knowledge or consent of his master,
the latter is not responsible. Mitchell
v. Crassweller, 237.
2. The defendants' carman, having
finished the business of the day, re-
turned to their shop in Welbeck
Street, with their horse and cart, and
obtained the key of the stable, which
was close at hand; but, instead of going
there at once, and putting up the horse,
as it was his duty to do, he, without
his masters' knowledge or consent,
drove a fellow-workman to Euston
Square; and, in his way back, ran
over and injured the plaintiff and his
wife :-Held, that, inasmuch as the
carman was not at the time of the acci-
dent engaged in the business of his
masters, they were not responsible for
the consequences of his unauthorised
act. Ib.
3. The declaration alleged that "the
defendants were possessed of a certain
cart and horse, which was being driven
by and under the care and direction of
their servant,"-not saying, at the time
of the grievance complained of; and
that, "whilst the plaintiff was crossing
a certain street, &c., the defendants,
by their servant, so negligently and
improperly drove and directed the said
cart and horse along the said street,
that the plaintiff was knocked down
and injured: "-Held, that the first
allegation was immaterial, and not tra-
versable; and that, under "not guilty,"
the defendants might shew that the
driver was not at the time of the acci-
dent acting as their servant. Ib.
In Navigation.]-4. By the 26th sec-
tion of the 14 & 15 Vict. c. 79, the
commissioners of the Admiralty are
authorised to make regulations re-
quiring the exhibition of such lights
by such classes of vessels, whether
steam or sailing vessels, within such
places and under such circumstances
as they think fit; and provides, that
all owners and masters or persons
having charge of vessels shall be bound
to take notice of such regulations, and
shall exhibit such lights, and no others,
at such times, within such places, in
such manner, and under such circum-
stances as are injoined by such regula-
tions; and that, in case of default, the
master or other person having charge
of any vessel, or the owner of such
vessel, if it appear that he was in
fault, shall for each and every occasion
upon which such regulations are in-
fringed forfeit and pay a sum not ex-
ceeding 201.
And the 28th section of the statute
provides, that, "in case any damage to
person or property be sustained in con-
sequence of the non-observance of any
of the said rules, the same shall in all
courts of justice be deemed, in the
absence of proof to the contrary, to
have been occasioned by the wilful de-
fault of the master or other person
having charge of such vessel, and such
master or other person shall, unless it
appear to the court before which the
cause is tried that the circumstances of
the case were such as to justify a de-
parture from the rule, be subject in all
proceedings, whether civil or criminal,
to the legal consequences of such de-
fault."
A count in case, after setting out the
26th section of the above statute, and
averring that the commissioners had
made a regulation that "all sailing
vessels at anchor in roadsteads or fair-
ways shall be bound to exhibit, between
sunset and sunrise, a constant bright
light at the mast-head," proceeded to
allege that the plaintiffs were possessed
of a certain steam-vessel called the A.,
then proceeding, between the hours of
sunset and sunrise, down the river
Thames, in a certain roadstead or fair-
way thereof, called Gravesend Reach;
that the defendant was then possessed
of a certain sea-going and sailing vessel
called the V., then being at anchor in
the Thames, in the same roadstead or
fairway, between the said hours of sun-
set and sunrise, and under the care and
management of the servants of the de-
fendant; that it was their duty to ex-
hibit a bright light at the mast-head of
the defendant's vessel; but that they,
not regarding their duty in that behalf,
neglected to exhibit such bright light,
&c.; and that, while the said steam-
vessel of the plaintiffs was so proceed-
ing, &c., the same, by and through the
carelessness and neglect of the defend-
ant, in not exhibiting the bright light
at the mast-head of the vessel of the
defendant, ran foul of and struck the
vessel of the defendant, and greatly
broke and damaged the said steam-
vessel of the plaintiffs :—
Held, on demurrer, that the declara-
tion disclosed no breach by the defend-
ant of any duty imposed upon him by
the statute; and that, striking out the
allegations as to the statute, the de-
claration shewed no cause of action, it
being consistent with the statements
therein that the damage resulted from
the plaintiff's own negligence. The
General Steam Navigation Company v.
Morrison, 581.
Sub-Contractor.]-5. If one employs
another to do an act which may be
done in a lawful manner, and the latter
in doing it unnecessarily commits a
public nuisance, whereby injury re-
sults to a third person, the employer
is not responsible. Peachey v. Row-
land, 182.
6. A. employed B. to construct a
drain in a public highway; B. em-
ployed C. to fill in the earth over the
brick-work, and to carry away the sur-
plus: C., in performing his work, left
the earth raised so much above the
level of the road, that D., driving by
in the dark, was thereby upset, and
sustained injury:-Held that A. was
not responsible for the negligence of
C. Ib.
II. For Non-feasance.
One who gratuitously accepts the
office of steward of a horse-race, is not
responsible for a loss resulting to one
who enters a horse for the race, from
his mere non-feasance in omitting to
appoint a judge,—at all events, unless
it appears that he has actually entered
upon the duties of the office. Balfe v.
West, 466.
III. For Illegal Distress.
1. A count in case for distraining for
more rent than was due, is bad, though
it alleges it to have been done mali-
ciously,-for, an act which does not
amount to a legal injury, cannot be
actionable because it is done with a
bad intent. Stevenson v. Newnham, 285.
2. A. obtained certain goods by pur-
chase from the sheriff under a writ of
fi. fa. at his own suit, founded on a
warrant of attorney for 6007. given to
him by one S. The writ was put into
the sheriff's hands on the 25th of May,
1839, and a bill of sale given to the
plaintiff by the sheriff on the 21st of
June, for 600l. On the 29th of May,
another writ against S. was put into
the sheriff's hands, at the suit of one M.,
for 621. A. paid M.'s debt; and the as-
signment to him was under both writs.
A. took possession of the goods;
and on the 5th of October, 1849, B.
seized and sold them as a distress for
rent due to him from S.
In an action by A. against B. for an
irregular and excessive distress of the
goods obtained by him, the defence set
up by B. was, that A. had procured the
goods by way of fraudulent preference,
and that S. caused them to be taken
in execution with intent to defeat or
delay his creditors, being then indebted
to some in a sum sufficient to constitute
a good petitioning-creditor's debt: and
it was proved, that, on the 14th of June,
1851 (which was after the commence-
ment of this action), the assignees
under the fiat gave notice to A. that
they meant to treat the warrant of
attorney, judgment, and execution, as
void, and should claim the goods against
B., as being wrongfully taken under a
distress; and that they also gave notice
to B. that they had brought an action
against A. to try the validity of the
warrant of attorney, and had recovered
2307., the value of the goods seized
under A.'s writ, and requiring B. to pay
A. the value of the goods distrained,
and claiming from B. the damages
for the illegal distress, the subject of
this action:-
Held,-Erle, J., dissentiente,-that,
inasmuch as the subsequent interfer-
ence of the assignees had no relation
back to the original delivery of the
goods to A., so as to avoid the trans-
action ab initio, A. had an undoubted
right of action against B. for the illegal
distress. Ib.
IV. In Nature of Waste.
Lessee of a Mine.]-Case in the na-
ture of waste will lie against a lessee of
a mine, for an injury to the reversion,
by the removal of a barrier or boundary
between it and an adjoining mine,
although the act complained of might
also be the subject of an action for a
breach of an express covenant. Marker
v. Kenrick, 188.
To remove a Cause from the County-
Court.
Semble, that a cause removed by cer-
tiorari from a county-court, is, as to
the pleadings therein, governed by the
rules prescribed by the common law
procedure act, 15 & 16 Vict. c. 76.
Messiter v. Rose, 162.
CESTUI QUE TRUST.
How far affected by Fraud in Trustee,
See HUSBAND AND WIFE, III.
CLERK TO JUSTICES.
See LUNATIC ASYLUM, 1, 7.
Explaining a doubtful Will,-See
DEVISE.
COMMISSIONERS IN LUNACY.
See LUNATIC ASYLUM.
COMMITTEE OF VISITORS.
See LUNATIC ASYLUM.
COMMON LAW PROCEDURE
ACT.
I. Judge's Order under 15 & 16 Vict.
c. 76, s. 80.
After judgment for the plaintiff on a
demurrer to a surrejoinder, on the
ground that the plea was bad,-the
court declined, at the plaintiff's in-
stance, to rescind a judge's order al-
lowing the defendants to traverse and
demur to the surrejoinder, under the
80th section of the common law proce-
dure act, 15 & 16 Vict. c. 76. Sheehy
v. The Professional Life Assurance
Company, 801.
of limitations stated, that, at the re-
spective times when the causes of ac-
tion accrued, the plaintiff was in parts
beyond the seas, &c., and that he after-
wards returned from the said parts
beyond the seas into this kingdom, and
which was his first return into this
kingdom from the said parts after the
said causes of action accrued, and that
he commenced the suit within six years
next after his said first return into this
kingdom.
The court refused to allow, in addi-
tion to a traverse (under the 15 & 16
Vict. c. 76, s. 81), a rejoinder that the
plaintiff was and is a Frenchman born
in France, and was domiciled there at
the time of the accruing of the causes
of action, and which said causes of ac-
tion respectively first accrued to the
| plaintiff in France; that, more than
six years before the commencement of
this suit, the plaintiffs recovered judg
ments against him in France, in respect
of the same causes of action, whereby
according to the law of France the
causes of action were merged and ex-
tinguished in the said judgments; and
that the defendant had been domiciled
and resident in England for more than
six years from the date and recovery
of the said judgments,-on the ground
that, so far as it related to the judg-
ments recovered in France, the re-
joinder was a departure from the plea;
and, as to the rest, that it was no an-
swer to the replication,-the proviso
in favour of persons under disabilities,
in the 21 Jac. 1, c. 16, s. 7, applying
as well to foreigners who have never
been in this country, as to parties re-
siding abroad at the time of the accru-
II. Traverse and Rejoinder under 15 ing of the cause of action, and return-
& 16 Vict. c. 76, s. 81.
A replication to a plea of the statute
ing afterwards to England. Lafond v.
Ruddock, 813.
III. Setting aside Judgment signed
To a count alleging an agreement by
B. to serve A. as his clerk, and not to
leave without notice, B. pleaded, that,
whilst he was in A.'s employ, A., with-
out any just cause or provocation, in-
sulted and abused him, whereupon he
gave him notice that he should forth-
with leave his service. To this A.
(without obtaining leave to reply dou-
ble) replied thus,-"A. takes issue on
B.'s plea, and further says that the
notice intended in the declaration was
a reasonable and proper notice, but
that the notice mentioned in B.'s plea
was not a reasonable or proper notice."
A. having signed judgment, under the
86th section of the common law pro-
cedure act, 15 & 16 Vict. c. 76,-the
court set it aside, without costs, de-
clining to decide whether or not the
judgment was regular. Messiter v.
IV. Amendment, under s. 222.
Adding a plea.]—Quære, as to the
power of the judge to add a plea at
the trial, under the 222nd section of
the common law procedure act. Mit-
chell v. Crassweller, 237.
COMPANIES CLAUSES ACT.
See RAILWAY COMPANY.
CONSIDERATION.
Want or Illegality of,-See BILL OF
EXCHANGE, II, III.
CONSTRUCTIVE OCCUPATION.
See USE AND OCCUPATION.
CONSTRUCTIVE SERVICE.
By Apprentice,-See APPRENTICE.
CONTRACT.
I. Construction of.
1. A. contracted to sell 1000 tons of
iron to B., and indorsed and delivered
to him a document in the following
form, addressed to A., and signed by
certain iron-masters :- "We hold at
your disposal 1000 tons of grey forge
pig-iron, of 2240lbs. to the ton, which
we engage to deliver to your order,
free of all charge, into boats, on the pre-
sentation of this document, duly in-
dorsed by you:"-
Held, that "presentation" meant
"delivering up" the document to the
iron-masters; and, consequently, that
a plea that the defendant could not and
did not procure the iron according to
the tenor and effect thereof, was not
sustained by proof that the document
had been shewn to the iron-masters,
and that they refused to deliver the iron
unless the document was previously left
with them. Bartlett v. Holmes, 630.
2. A. wrote to B. on the 15th of July.
proposing a partnership, saying,—“ As
to the time, I certainly should wish it
by the end of August." To this B.
answered, on the 16th,-"I am ready
to accede to your proposal. With
regard to time, if you could possibly
defer my coming until the second week
in September, it would suit much best."
On the 19th, A. again wrote,—“ The
time is very important, and ought not
to be later than August :"-Held, that
these letters did not constitute an abso-
lute agreement; and, the judge of the
county-court having left it to the jury
to determine whether B.'s letter of the
16th of July was a positive acceptance
of A.'s proposal of the 15th,-Held, a
|