:-

disapproved of and rejected; and that,
save as aforesaid, the plaintiff did not
prepare any probationary drawings for
the approval of the committee; and
that therefore they discharged him
from the further performance of the
agreement, as they lawfully might
Held, that the plea was proved, by
shewing that a reasonable time for pre-
paring the requisite probationary draw-
ings had elapsed, and that none were
prepared by the plaintiff except certain
drawings which the committee disap-
proved of and rejected. Ib.

4. And held, that, upon the true con-
struction of the contract, the plaintiff
was entitled to recover nothing until
the drawings had been approved by
the several parties whose approval was
by the statute required, and the subse-
quent drawings and estimates were all
completed. Ib.

5. Quære, whether the committee
had power to make a contract for plans
and drawings which should not be ulti-
mately approved of? Ib.

6. Quære, whether, assuming that
they had such power, the plaintiff's
remedy was by action or by mandamus?
Ib.

7. Quære, whether, assuming that
the contract was one upon which an
action might be maintained, it could
properly be brought against the clerk ?

Ib.

MALICIOUS TRESPASS ACT.
See NOTICE OF ACTION.

MANDAMUS.
See LUNATIC ASYLUM, 6.

MASTER AND SERVANT.
I. Dissolution of Contract of hiring.
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, declin-
ing to decide whether or not the judg-
ment was regular. Messiter v. Rose,
162.

II. Liability of Master for Negligence
of a Servant.

1. A master is responsible for an in-
jury resulting from the negligence of
his servant whilst driving his cart or
carriage, provided 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 accident
engaged in the business of his masters,
they were not responsible for the con-
sequences 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 im-
properly 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.

MEMORANDA.
Resignation of Lord St. Leonards,

372.

Appointment of Lord Cranworth as
Chancellor, 372.

Sir G Turner, V. C., appointed one
of the Lords Justices, 372.

Resignation of Sir F. Thesiger,
A. G., and Sir F. Kelly, S. G., 372.

Appointment of Sir A. J. Cockburn,
A. G., and Sir W. P. Wood, S. G.,
372.

Sir W. P. Wood appointed one of
the Lords Justices, and knighted, 372.
R. Bethell, Esq., appointed Solici-
tor-General, and knighted, 372.

W. M. James and H. A. Mere-
wether, Esqs., Queen's Counsel, 372.

MINE.

Removal of Barrier.

Case in the nature 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 com-
plained of might also be the subject of
an action for a breach of an express co-
venant. Marker v. Kenrick, 188.

MISDIRECTION.

See NEW TRIAL.

MONEY HAD AND RECEIVED.
Where Maintainable

Money paid under Compulsion.]-
An executrix having compelled a de-
visee to pay certain moneys to her be-
fore she would give up the title-deeds
of the premises to him:-Held, that
(assuming the executrix to have as-
sented to the bequest) the devisee was
entitled to recover back the amount in
an action for money had and received.
Gibbon, App., Gibbon, Resp. 205.

MUNICIPAL CORPORATION.
Execution against.

Execution cannot, by virtue of the
5 & 6 W. 4, c. 76, s. 92, be had against
the property of a corporation, acquired
since the passing of that statute, in
satisfaction of a debt contracted by the
old corporation. Arnold v. Ridge, 745.

NEGLIGENCE.
See CASE, I.

NEW TRIAL.

For Misdirection.

1. In an action for use and occupa-
tion, the under-sheriff told the jury
that "a constructive occupation" was

sufficient to entitle the plaintiff to re-
cover, without telling them what was
a constructive occupation:-Held, a
misdirection. Towne v. D'Heinrich, 892.

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 se-
cond week in September, it would suit
much best." On the 19th, A. wrote
again,-"The time is very important,
and ought not to be later than August:"
-Held, that these letters did not con-
stitute an absolute 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 misdirection.
Chevely, App., Fuller, Resp. 122.

3. In trespass for breaking and en-
tering the plaintiff's close, the plaintiff
relied upon the bare possession, though
it appeared that he had originally be-
come possessed as tenant to one W.
under a written agreement. The de-
fendant proved, that, five days after
the commencement of the trespass, he
obtained a lease of the close in question
from W., which he produced. The
judge told the jury, that, in the ab-
sence of proof of the quantum of the
plaintiff's interest in the premises (by
the production of the written agree-
ment), he was only entitled to no-
minal damages :-Held, no misdirec-
tion. Twyman v. Knowles, 222.

4. The judge further told the jury,
that, if they gave the plaintiff more
than 40s., he could not influence the
costs;
but that, if they gave less than

40s., each party would have to pay his
own costs:-Held, no misdirection. Ib.

NOT GUILTY, BY STATUTE.
See NOTICE OF ACTION.

NOTICE OF ACTION.
For a Thing done in Pursuance of a
Statute.

In order to entitle a party to notice
of action for a thing done "in pursu
ance" or "in the execution," of an act
of parliament, it is not necessary that
he should at the time of doing the act
be cognisant of the existence of the
statute giving him such protection, or
that he should be acting strictly in the
execution of it. Read v. Coker, 850.

NOTICE OF DISHONOUR.
See BILL OF EXCHANGE, I.

NOTICE TO QUIT.

See LANDLORD AND TENANT.

NOTICE OF TRIAL.
The plaintiff gave notice of trial for
the first sitting in London in Easter

-

Term, which was the 22nd of April:
on the 20th of April, he gave the de-
fendant notice that the cause would be
taken as an undefended cause at the
second sitting (which would be on the
29th): the cause was called on and
tried at the first sitting, and a verdict
found for the plaintiff,-the defendant
not appearing:-Held, that the de-
fendant was too late, on the 6th of
May, to move to set aside the trial and
subsequent proceedings. Ellaby v.
Moore, 907.

ORDER.

I. In Bankruptcy,-See BANKRUPT, III.
II.Judge's Order,-SceJUDGE'S ORDER.

PARTIAL LOSS.

See INSURANCE.

PAYMENT.

1. Particulars of Payments made by
Defendant,-See PRACTICE, I.

nor would continue to retain or employ
the plaintiff as such attorney or soli-
citor, on the terms aforesaid, but
wrongfully and without any reason-
able cause dismissed and discharged
him from such employment and re-
tainer, and thence hitherto refused to

PAYMENT INTO COURT.
Effect as to Costs,-See Costs, I.

PLEADING.

I. ASSUMPSIT.
Executory Contract.]-1. 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 com-
pany on all occasions in all matters
connected with the company, with
certain 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 promised to perform
the same in all things on their part, and
to retain and employ him as such attor-
ney and solicitor of the company, on
the terms aforesaid; and alleged for
breach, that the company, disregarding
their promise and agreement, did not

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 reversed,-that the count was
good after verdict; for, that it suffi-
ciently alleged an agreement by the
company creating the relation of attor-
ney and client, and a promise to con-
tinue that relation for at least a year.
Emmens v. Elderton, 495.

2. Traverse of Matter not alleged in
the Declaration.]-A declaration in as-
sumpsit against the defendant sued as
clerk to a committee of visitors ap-
pointed pursuant to the 8 & 9 Vict. c.
126, for the regulation &c. of a county
lunatic asylum, stated that it was agreed
by and between the plaintiff and the
committee of visitors, that, in consider-
ation that the plaintiff would render
his services as an architect, in examin-
ing the site for a proposed lunatic asy-
lum, and preparing the requisite pro-
bationary drawings for the approval of
the committee of visitors, and all other
drawings and documents required to be
submitted to the commissionersin lunacy,
and afterwards to the secretary of state,
pursuant to the statutes, and subse-
quently would prepare the whole of the
working-drawings, estimates, and spe-
cifications for an asylum to contain two
hundred patients, the committee agreed
that the sum of 4371. 10s. should be

paid to the plaintiff. The declaration
then alleged that the plaintiff did ren-
der his services in examining the site,
and did prepare the requisite proba-

tionary drawings for the approval of

the committee, and had always been
ready and willing to prepare all other
drawings and documents required to
be submitted to the commissioners in
lunacy, and secretary of state, and sub-
sequently to prepare the whole of the
working-drawings, estimates, and spe-
cifications, of which the committee
had notice; but that they refused to
permit him to complete the agreement,
and wrongfully discharged him from
the further performance thereof.

Third plea, that the plaintiff did
not prepare the working-drawings in
the count mentioned :-Held, bad on
demurrer, as being a traverse of a
matter not alleged in the declaration.
Moffatt v. Dickson, 543.

II. CASE.

Immaterial Allegation in Action for
Negligence.

A declaration in case for running
over the plaintiff and his wife, 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 im-
material and not traversable; and that,
under "not guilty," the defendants
might shew that the driver was not at

the time of the accident acting as their
servant. Mitchell v. Crassweller, 237.

III. COVENANT.

denture of the 20th of June, 1840, re-
1. Sufficiency of Breach.]-By in-
citing 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
assigns, licence to manufacture the
said patent improved machinery, and
exclusive 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
assigns, should make and sell in pur-
suance of the aforesaid licence; but
such patent rent to be paid, without
deduction, 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 exe-
cutors, administrators, and assigns,
covenant with A., his executors, &c.,
"that he, B., his executors, administra-
tors, 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 executors, 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