Imágenes de páginas

tiorari from a county-court, is, as to of limitations stated, that, at the re-
the pleadings therein, governed by the spective times when the causes of ac-
rules prescribed by the common law tion accrued, the plaintiff was in parts
procedure act, 15 & 16 Vict. c. 76. beyond the seas, &c., and that he after-
Messiter v. Rose, 162.

wards returned from the said parts

beyond the seas into this kingdom, and
CESTUI QUE TRUST. which was his first return into this
How far affected by Fraud in Trustee, kingdom from the said parts after the
See HUSBAND AND WIFE, III. said causes of action accrued, and that

he commenced the suit within six years

next after his said first return into this
See LUNATIC Asylum, 1, 7.


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
Explaining a doubtful Will,- See the time of the accruing of the causes

of action, and which said causes of ac-

tion respectively first accrued to the
COMMISSIONERS IN LUNACY. plaintiff in France; that, more than


before the commencement of

this suit, the plaintiffs recovered judg.
COMMITTEE OF VISITORS. 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 es.

tinguished in the said judgments; and

that the defendant had been domiciled
I. Judge's Order under 15 & 16 Vict.

and resident in England for more than
c. 76, s. 80.
After judgment for the plaintiff on a

six years from the date and recovery
demurrer to a surrejoinder, on the

of the said judgments,-on the ground
ground that the plea was bad,—the that, so far as it related to the judg-

ments recovered in France, the re-
court declined, at the plaintiff's in-
stance, to rescind a judge's order als joinder was a departure from the plea;

and, as to the rest, that it was no an.
lowing the defendants to traverse and
demur to the surrejoinder, under the

swer to the replication,-the proviso
80th section of the common law proce-

in favour of persons under disabilities,

in the 21 Jac. 1, c. 16, 8. 7,
dure act, 15 & 16 Vict. c. 76. Sheehy

v. The Professional Life Assurance

as well to foreigners who have never

been in this country, as to parties re-
Company, 801.

siding abroad at the time of the accru-
II. Traverse and Rejoinder under 15 ing of the cause of action, and return-
8 16 Vict. c. 76, s. 81.

ing afterwards to England. Lafond v.
A replication to a plea of the statute Ruddock, 813.

III. Setting aside Judgment signed CONSTRUCTIVE SERVICE.
under s. 86.

By Apprentice,- See APPRENTICE.
To a count alleging an agreement by
B. to serve A. as his clerk, and not to

leave without notice, B. pleaded, that,

I. Construction of.
whilst he was in A.'s employ, A., with 1. A. contracted to sell 1000 tons of
out any just cause or provocation, in iron to B., and indorsed and delivered
sulted and abused him, whereupon he to him a document in the following
gave him notice that he should forth. form, addressed to A., and signed by
with leave his service. To this A. certain iron-masters : - We hold at
(without obtaining leave to reply dou your disposal 1000 tons of grey forge
ble) replied thus,—“A. takes issue on pig-iron, of 2240lbs. to the ton, which
B.'s plea, and further says that the we engage to deliver to your order,
notice intended in the declaration was free of all charge, into boats, on the pre-
a reasonable and proper notice, but sentation of this document, duly in-
that the notice mentioned in B.'s plea dorsed by you:”-
was not a reasonable or proper notice.” Held, that “presentation" meant
A. having signed judgment, under the • delivering up" the document to the
86th section of the common law pro iron-masters; and, consequently, that
cedure act, 15 & 16 Vict. c. 76,- the a plea that the defendant could not and
court set it aside, without costs, de did not procure the iron according to
clining to decide whether or not the the tenor and effect thereof, was not
judgment was regular. Messiter v. sustained by proof that the document

had been shewn to the iron-masters,
IV. Amendment, under s. 222.

and that they refused to deliver the iron
Adding a plea.]-Quære, as to the

unless the document was previously left

with them. Bartlett v. Holmes, 630.
power of the judge to add a plea at
the trial, under the 222nd section of

2. A. wrote to B. on the 15th of July.
the common law procedure act. Mit proposing a partnership, saying, “ As
chell v. Crassweller, 237.

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-
Wunt or Illegality of,- See BILL OF

lute agreement; and, the judge of the

county-court having left it to the jury

to determine whether B.'s letter of the
CONSTRUCTIVE OCCUPATION. 16th of July was a positive acceptance

See USE AND OCCUPATION. of A.'s proposal of the 15th,-Held, a

misdirection. Cheveley, App., Fuller, | versed,—that the count was good after
Resp., 122.

verdict; for, that it sufficiently alleged
II. Executory Contract for Services as

an agreement by the company creating
an Attorney and Solicitor.

the relation of attorney and client, and
A count in assumpsit against the a promise to continue that relation for
secretary of a joint-stock company,

at least a year. Emmens v. Elderton,

stated, that, on the 30th of November,
1814, it was agreed, by and between

III. Measure of Damages in Case of
the plaintiff and the company, that,

Breach of.
from the 1st of January then next, the

The measure of damages in the case
plaintiff, as the attorney and solicitor of a breach of contract to deliver goods
of the company, should receive and at a specified time, is, the difference
accept a salary of 1001. per annum, in

between the contract price and the
lieu of rendering an annual bill of costs market-price at the time of the breach
for general business transacted by him of contract, or the price for which the
for the company, and should and would vendee had sold: but the latter cannot
for such salary advise and act for the recover, as special damage, the loss of
company on all occasions in all matters anticipated profits to be made by his
connected with the company, with cer-

vendees. Peterson v. Ayre, 353.
tain exceptions. The count then stated

that, the said agreement being so made,

in consideration that the plaintiff had,

at the request of the company, promised One who contracts to do work upon
the company to perform the same in all

a large scale, employing labourers under
things on his part, the company pro-

him, is not an “artificer, workman, or
mised to perform the same in all things labourer," within the meaning of the

him as such attorney and solicitor of the superintends the work, and from time
company, on the terms aforesaid ; and

to time labours personally therein.
alleged for breach, that the company,

Sharman v. Sanders, 166.
disregarding their promise and agree-

And see Case, I, 5.
ment, did not nor would continue to
retain or employ the plaintiff as such

attorney or solicitor, on the terms afore- Surrender and Admittance.
said, but wrongfully and without any 1. In the absence of any special
reasonable cause dismissed and dis- custom to that effect, the lord cannot
charged him from such employment be compelled to take a surrender by
and retainer, and thence hitherto re- deed burthened with trusts. Flack v.
fused to retain or employ him as such The Master, &c., of Downing College,
attorney or solicitor :-

Held,-in accordance with the opi- 2. A surrender, therefore, to such
nions of eight judges against one, and uses as “A. B., his executors, admi-
in aflirmance of the judgment of the nistrators, or assigns, at any time, or
Exchequer Chamber, whereby that of from time to time during the lives of
the court of Common Pleas was re- the surrenderor and A. B., or the life


of the survivor of them, or within directed a verdict to be entered for the
twenty-one years from the day of the plaintiff on the first issue, damages 20s.,
decease (inclusively) of such survivor, and for the defendant on the second
shall by any writing or writings under issue :-Held, that the plaintiff was
his or their hand or hands appoint, and, deprived of costs, by the 3 & 4 Vict. c.
in default of and until such appoint- 24, s. 2, having “recovered by verdict
ment, to the use of A. B., his heirs and of a jury less damages than 40s.Reid
assigns for ever, according to the cus- V. Ashby, 897.
tom of the said manor,” &c.,-is not,
without some special custom in the

II. Suggestion under the London Small
manor to warrant it, such a surrender

Debts Act, 15 & 16 Vict. c. lxxvii,
as the lord is bound to accept. Ib.

8. 119.
3. A surrenderee (for a valuable

The 119th section of the London
consideration) of a copy hold tenement,

small debts extension act, 15 & 16 Vict.
who had never been admitted thereto,

c. lxxvii, is not repealed by the 120th
by his will devised it to A. B. :-Held, section, the latter provision not being

that A. B., though admitted, gained no

necessarily inconsistent with
legal title to the premises. Matthew

former,-the combined effect of the
v. Osborne, 919.

two being, that, if the plaintiff, in an

action on contract in the superior court,

for which a plaint might have been
Service of Process upon.

entered in the local court, recovers 201.,
Quære, as to the mode of service

and not more than 501. (or less than 51.
upon a corporation, under the Irish

in tort), a suggestion may be entered to
uniformity of process act, 13 & 14 Vict. deprive him of costs ; but that, if he
c. 18, ss. 8, 9? Sheehy v. The Pro-

recovers less than 201. in an action on
fessional Life Assurance Company,787.

contract (not being an action for breach

of promise of marriage), or less than

51. in trespass, trover, or case (not
I. Under Statute 3 do 4 Vict. c. 24, s. 2.

being an action for malicious prosecu-
The first count charged the defend-

tion, libel, slander, criminal conversa-
ants with injuring the plaintiff's party-

tion, or seduction), he loses his costs

, by excavating by the side of it, absolutely, unless the judge certifies
and raising and overloading it. The

under the 121st section. Castrique v.
defendants pleaded,---first, as to the

Page, 458.
raising and overloading, not guilty by

III. Taxation of
statute,-secondly, as to the residue, Costs of Witnesses.]—To debt for
payment into court of 301. The work and labour, &c., the defendant
plaintiff joined issue on the first plea, pleaded, -first,-except as to 591. 12s.,
and replied damages ultrà to the second.

never indebted, -secondly, except as
At the trial a verdict was taken for the to 591. 128., a set-off,--thirdly, except
plaintiff, subject to an award, but no as to 591. 128., payment,-fourthly,
power was reserved to the arbitrator payment into court of 591. 128., which
to certify for costs, under the 3 & 4 was taken out. The cause was re-
Vict. c. 24, s. 2. The arbitrator having | ferred, and the arbitrator found the

first issue for the plaintiff, and the rest

for the defendants :-Held, that the

I. For Payment of Rent.
plaintiff was not entitled to the ex.

Mortgagor and mortgagee of an un-
pense of his own attendance as a wit.

divided moiety of certain premises,
ness, if his evidence was applicable to jointly with the owner of the other
the second and third issues ; the de moiety, demised the whole for twenty-
fendant being entitled to the general

one years to one Green, the latter
costs of the cause. Clothier v. Gann,

covenanting with the three lessors

jointly and severally to pay the rent

reserved, but not saying to whom.
Jurisdiction of.

Green entered upon the premises, and
1. Detinue.] - The county-courts afterwards became bankrupte
have jurisdiction, under the 9 & 10

assignees having accepted the lease,
Vict. c. 95, and 13 & 14 Vict. c. 61, in

Held,--deferring to the authority of
actions of detinue. Taylor v. Addy | Wakefield v. Brown, 9 Q. B. 209,-
man, 309.

that the defendants were liable in
2. Devastavit.] — The county-court

covenant at the suit of the three
has no jurisdiction to try a question lessors for rent accruing since they
of devastavit. Winch, App., Winch,

became possessed of the premises.
Resp. 128.

Magnay v. Edwards, 479.
3. Cause removed by Certiorari.]
Semble, that a cause removed by certi. II. Effect of the Reddendum, with a
orari from a county-court, is, as to the subsequent express Covenant to pay.
pleadings therein, governed by the By indenture of the 20th June, 18-10,
rules prescribed by the common law reciting that a patent had been granted
procedure act, 15 & 16 Vict. c. 76. to A., his executors, &c., for improve-
Messiter v. Rose, 162.

ments in machinery or apparatus for
4. Title coming in Question.]-A. and manufacturing pipes, A., in considera-
B. had a conversation about the letting tion of the reservation and covenants
of a cottage which A. claimed as heir thereinafter contained, granted to B.,
at-law of his father, who had been in his executors, administrators, and as-
possession for fifty years before his signs, licence to manufacture the said
death, but no agreement was come to. patent improved machinery, and ex-
B. afterwards took forcible possession clusive liberty, licence, and authority
of the cottage ; and, in a plaint in the to make pipes or tubes of iron (but of
county-court, in which A. claimed two no other metal) by or with such ma-
years' rent, B. set up the title of the chinery, and to sell and dispose thereof
lord of the manor :-Held, that, inas. for his and their own use and benefit,-
much as there was no evidence of reddendum to A., his executors, &c., a
tenancy, the title properly came in royalty of 4l. 138. 4d. for every ton of
question ; and a prohibition was issued. the said iron pipes or tubes which B.,
Marwood v. Waters, 820.

his executors, administrators, or as-

signs, should make and sell in pur-
COUNTY-MAGISTRATES. suance of the aforesaid licence; “ but

such patent rent to be paid without de-

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