misdirection. Cheveley, App., Fuller, | versed,-that the count was good after
Resp., 122.
II. Executory Contract for Services as
an Attorney and Solicitor.
A count in assumpsit against the
secretary of a joint-stock company,
stated, that, on the 30th of November,
1844, it was agreed, by and between
the plaintiff and the company, that,
from the 1st of January then next, the
plaintiff, as the attorney and solicitor
of the company, should receive and
accept a salary of 1007. per annum, in
lieu of rendering an annual bill of costs
for general business transacted by him
for the company, and should and would
for such salary advise and act for the
company on all occasions in all matters
connected with the company, with cer-
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
the company to perform the same in all
things on his part, the company pro
mised to perform the same in all things
on their part, and to retain and employ
him as such attorney and solicitor of the
company, on the terms aforesaid; and
alleged for breach, that the company,
disregarding their promise and agree-
ment, did not nor would continue to
retain or employ the plaintiff as such
attorney or solicitor, on the terms afore-
said, but wrongfully and without any
reasonable cause dismissed and dis-
charged him from such employment
and retainer, and thence hitherto re-
fused to retain or employ him as such
attorney or solicitor :-
Held,—in accordance with the opi-
nions of eight judges against one, and
in affirmance of the judgment of the
Exchequer Chamber, whereby that of
the court of Common Pleas was re-
verdict; for, that it sufficiently alleged
an agreement by the company creating
the relation of attorney and client, and
a promise to continue that relation for
at least a year. Emmens v. Elderton,
III. Measure of Damages in Case of
Breach of.
The measure of damages in the case
of a breach of contract to deliver goods
at a specified time, is, the difference
between the contract price and the
market-price at the time of the breach
of contract, or the price for which the
vendee had sold: but the latter cannot
recover, as special damage, the loss of
anticipated profits to be made by his
vendees. Peterson v. Ayre, 353.
And see MASTER and Servant, 1.
RAILWAY COMPANY, I.
One who contracts to do work upon
a large scale, employing labourers under
him, is not an "artificer, workman, or
labourer," within the meaning of the
truck-act, 1 & 2 W. 4, c. 37, though he
superintends the work, and from time
to time labours personally therein.
Sharman v. Sanders, 166.
Surrender and Admittance.
1. In the absence of any special
custom to that effect, the lord cannot
be compelled to take a surrender by
deed burthened with trusts. Flack v.
The Master, &c., of Downing College,
915.
2. A surrender, therefore, to such
uses as "A. B., his executors, admi-
nistrators, or assigns, at any time, or
from time to time during the lives of
the surrenderor and A. B., or the life
of the survivor of them, or within
twenty-one years from the day of the
decease (inclusively) of such survivor,
shall by any writing or writings under
his or their hand or hands appoint, and,
in default of and until such appoint-
ment, to the use of A. B., his heirs and
assigns for ever, according to the cus-
tom of the said manor," &c.,-is not,
without some special custom in the
manor to warrant it, such a surrender
as the lord is bound to accept. Ib.
3. A surrenderee (for a valuable
consideration) of a copy hold tenement,
who had never been admitted thereto,
by his will devised it to A. B. :-Held,
that A. B., though admitted, gained no
legal title to the premises. Matthew
v. Osborne, 919.
Service of Process upon.
Quare, as to the mode of service
upon a corporation, under the Irish
uniformity of process act, 13 & 14 Vict.
c. 18, ss. 8, 9 ? Sheehy v. The Pro-
fessional Life Assurance Company,787.
And see MUNICIPAL CORPORATION.
I. Under Statute 3 & 4 Vict. c. 24, s. 2.
The first count charged the defend-
ants with injuring the plaintiff's party-
wall, by excavating by the side of it,
and raising and overloading it. The
defendants pleaded,-first, as to the
raising and overloading, not guilty by
statute, secondly, as to the residue,
payment into court of 301. The
plaintiff joined issue on the first plea,
and replied damages ultrà to the second.
At the trial a verdict was taken for the
plaintiff, subject to an award, but no
power was reserved to the arbitrator
to certify for costs, under the 3 & 4
Vict. c. 24, s. 2. The arbitrator having
directed a verdict to be entered for the
plaintiff on the first issue, damages 20s.,
and for the defendant on the second
issue-Held, that the plaintiff was
deprived of costs, by the 3 & 4 Vict. c.
24, s. 2, having "recovered by verdict
of a jury less damages than 40s." Reid
v. Ashby, 897.
II. Suggestion under the London Small
Debts Act, 15 & 16 Vict. c. lxxvii,
s. 119.
The 119th section of the London
small debts extension act, 15 & 16 Vict.
c. lxxvii, is not repealed by the 120th
section, the latter provision not being
necessarily inconsistent with the
former, the combined effect of the
two being, that, if the plaintiff, in an
action on contract in the superior court,
for which a plaint might have been
entered in the local court, recovers 201.,
and not more than 50%. (or less than 57.
in tort), a suggestion may be entered to
deprive him of costs; but that, if he
recovers less than 207. in an action on
contract (not being an action for breach
of promise of marriage), or less than
57. in trespass, trover, or case (not
being an action for malicious prosecu-
tion, libel, slander, criminal conversa-
tion, or seduction), he loses his costs
absolutely, unless the judge certifies
under the 121st section. Castrique v.
Page, 458.
Costs of Witnesses.]-To debt for
work and labour, &c., the defendant
pleaded,-first,-except as to 597. 12s.,
never indebted,-secondly, except as
to 597. 12s., a set-off,-thirdly, except
as to 597. 12s., payment,-fourthly,
payment into court of 591. 12s., which
was taken out. The cause was re-
ferred, and the arbitrator found the
2. Devastavit.]-The county-court
has no jurisdiction to try a question
of devastavit. Winch, App., Winch,
Resp. 128.
3. Cause removed by Certiorari.]—
Semble, that a cause removed by certi-
orari 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.
4. Title coming in Question.]—A. and
B. had a conversation about the letting
of a cottage which A. claimed as heir-
at-law of his father, who had been in
possession for fifty years before his
death, but no agreement was come to.
B. afterwards took forcible possession
of the cottage; and, in a plaint in the
county-court, in which A. claimed two
years' rent, B. set up the title of the
lord of the manor :-Held, that, inas-
much as there was no evidence of
tenancy, the title properly came in
question; and a prohibition was issued.
Marwood v. Waters, 820.
COUNTY-MAGISTRATES.
See LUNATIC ASYLUM.
I. For Payment of Rent.
Mortgagor and mortgagee of an un-
divided moiety of certain premises,
jointly with the owner of the other
moiety, demised the whole for twenty-
one years to one Green, the latter
covenanting with the three lessors
jointly and severally to pay the rent
reserved, but not saying to whom.
Green entered upon the premises, and
afterwards became bankrupt His
assignees having accepted the lease,—
Held,-deferring to the authority of
Wakefield v. Brown, 9 Q. B. 209,-
that the defendants were liable in
covenant at the suit of the three
lessors for rent accruing since they
became possessed of the premises.
Magnay v. Edwards, 479.
II. Effect of the Reddendum, with a
subsequent express Covenant to pay.
By indenture of the 20th June, 1840,
reciting that a patent had been granted
to A., his executors, &c., for improve-
ments in machinery or apparatus for
manufacturing pipes, A., in considera-
tion of the reservation and covenants
thereinafter contained, granted to B.,
his executors, administrators, and as-
signs, licence to manufacture the said
patent improved machinery, and ex-
clusive liberty, licence, and authority
to make pipes or tubes of iron (but of
no other metal) by or with such ma-
chinery, and to sell and dispose thereof
for his and their own use and benefit,-
reddendum to A., his executors, &c., a
royalty of 4l. 13s. 4d. for every ton of
the said iron pipes or tubes which B.,
his executors, administrators, or as
signs, should make and sell in pur-
suance of the aforesaid licence; "but
such patent rent to be paid without de-
duction, on or before the twenty-first
day after each successive quarter of a
year from the date thereof:" and B.
did thereby for himself, his executors,
administrators, and assigns, covenant
with A., his executors, &c., "that he,
B., his executors, administrators, and
assigns, would, within seven days after
the end of each successive quarter of a
year from the date thereof, deliver to
A., his executors, &c., a just and true
account of the quantity in weight of
iron pipes or tubes which B., his execu-
tors, administrators, or assigns, should
have sold in the quarter then ending,
in pursuance of the licence, and would,
within twenty-one days after the end
of each successive quarter, pay A., his
executors, &c., such sum as should
upon the face of such account be pay-
able by way of royalty as aforesaid."
On the 4th of May, 1842, B. assigned
his interest in the licence to C. On
the 11th of September, 1845, C., by a
deed reciting that D. and E. intended
to carry on the business of making and
selling iron tubes under the licence,
that the business was to be carried on
under the style or firm of The Patent
Welded Iron Tube Company, and that,
by a deed of even date therewith, the
licence had been assigned to F. and G.,
in trust, D. and E. covenanted with
C., that they, their executors, adminis-
trators, and assigns, would pay all
sums of money, and perform all cove-
nants, which should, from the 25th of
December then last, respectively be-
come payable and to be performed in
respect of the said licence and letters
patent, &c.
In covenant by C. against D. and
E., the declaration stated, that, after
the 29th of September, 1847, and
during the continuance of the licence,
the persons carrying on the said busi-
ness under the firm or style of The
Patent Welded Iron Tube Company
made and sold, in pursuance of the
licence, great quantities of the said
iron tubes, whereby certain royalties
became due to A.; and alleged for
breach that D. and E. did not pay the
money, or render any account of the
pipes so made and sold :—
Held, on demurrer, that the declara-
tion disclosed a sufficient cause of ac-
tion, although it did not in terms aver
that any iron tubes were made by B.
or his assigns; and that the covenant
to render an account and pay the
royalty, did not control the covenant
to pay contained in the reddendum.
Bower v. Hodges, 765.
Fraud and Immorality,-See
HUSBAND AND WIFE, III.
And see APPRENTICE.
1. For Breach of Contract.]-The
measure of damages in the case of a
breach of a contract to deliver goods
at a specified time, is, the difference
between the contract price and the
market price at the time of the breach
of contract, or the price for which the
vendee had sold: but the latter cannot
recover, as special damage, the loss of
anticipated profits to be made by his
vendees. Peterson v. Ayre, 353.
2. In Trover.]-See SHIPPING.
And see NEW TRIAL, 4.
Production of-See ATTORNEY, I, 1.
And see HUSBAND AND WIFE, III.
DELIVERY ORDER.
See CONTRACT, I, 2.
I. Of Rent,-See LANDLORD AND
II. In Detinue,-See DETINUE, I.
III. Particulars of.
Better Particulars.]-In ordering
further and better particulars, the
court will not compel the plaintiff to
give particulars of payments made by
the defendant. Fussell v. Gordon, 847.
I. Demand by One of Two or more
Joint-Tenants of a Chattel.
Where two or more who are jointly
interested in a chattel, deposit it with
a stranger, a demand by one in his
own name only, and not on behalf of
all, will not entitle such one to main-
tain detinue for it. Atwood v. Ernest,
881.
II. Jurisdiction of County-Courts in.
The county-courts have jurisdiction,
under the 9 & 10 Vict. c. 95, and 13
& 14 Vict. c 61, in actions of detinue.
Taylor v. Addyman, 309.
The county-court has jurisdiction to
try a question of devastavit. Winch,
App., Winch, Resp., 128.
1. Executory Bequest.]—A testator,
by his will, made in the year 1820,
gave and bequeathed to his daughter
Mary, her executors, administrators,
and assigns, certain leaseholds, for life,
and, from and after her decease, he gave
and bequeathed the same "unto and
amongst the lawful issue of his said
daughter Mary, equally, share and
share alike, with benefit of survivor-
ship; and, in default of such issue, he
gave and bequeathed the same unto
his son George, for his natural life,
and, after his decease, to his children
equally, share and share alike, with
the benefit of survivorship."
He afterwards made a codicil, which
contained a recital that he had by his
will given and bequeathed the lease-
holds to his son George "after the de-
cease of his daughter Mary, and in de-
fault of her leaving lawful issue," and
then went on to provide, that, in the
event of his son not indemnifying his
estate from a liability he the testator
had incurred on his account, all the
bequests to his son (but so far as con-
cerned the son only) should be re-
voked :-
Held, that, interpreting the will by
the codicil, the gift over in the former,
"in default of such issue," being capa-
ble of importing a bequest over on
failure of issue living at the death, it
must be inferred from the latter that
the testator employed it in that sense,
inasmuch as in the codicil he referred
to it as if it were a gift over in default
of his daughter's leaving issue, which
as regards personalty, is tantamount
to a gift over on failure of issue living
at the death: and, consequently, that,
assuming the limitation in the will if
it stood alone would have conferred an
absolute interest on the daughter, upon
the true construction of the will and
codicil taken together, such a gift was
subject to a good executory bequest
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