ACTION ON THE CASE.
1. A plaintiff is bound to accept from a de- fendant in custody under a ca. sa. the debt and costs when tendered in satisfac- tion of his debt, and to sign an authority to the sheriff to discharge the defendant out of custody. And an action on the case will lie against the plaintiff for hav- ing maliciously refused so to do; and the refusal to sign the discharge is sufficient prima facie evidence of malice in the absence of circumstances to rebut the presumption. Crozer v. Pilling and Moore, E. 6 G. 4. Page 26 2. Case against three defendants, proprie- tors of a stage coach. The declaration stated that the defendants so carelessly managed their coach and horses, that the coach ran against the plaintiff and broke his leg. It appeared in evidence that one of the defendants was driving at the time when the accident happened, and the jury found that it happened through his negligent driving: Held, that the plaintiff might maintain case against all the proprietors, although he might, per- haps, have been entitled to bring trespass against the one that drove the coach. Moreton v. Hardern and two others, E. 6 G. 4. 223
damages on the count in trover. Cotte- rill v. Hobby, T. 6 G. 4.
AGREEMENT.
See CoVANANT, 3.
An attorney, town clerk, and clerk of the peace for the borough of L. in the county of L., upon the dissolution of a partner- ship which had existed between him and two other persons, entered into an agree- ment to pay to one of them (C. D.) a certain sum of money, and to use his endeavors to procure for him one-fourth of the prosecutions arising in the town clerk's office. In an action by C. D. on this agreement, it appeared that the ma- gistrates of the borough of L. commit some offenders to be tried at the borough sessions, others at the county sessions, and others at the county assizes: Held, that the agreement extended to all prose- cutions arising in the town clerk's of fice," wherever they might be tried, and that letters written before the agreement was signed, could not be given in evi- dence to show that the parties intended the agreement to be applicable to the prosecutions at the borough sessions only: Held, also, that the defendant, as clerk of the peace of the borough, could not legally enter into such an agreement as that set out in the declaration.
Quære, Whether it would have been legal had he been town clerk only, and not clerk of the peace. Hughes, gent., one, &c. v. Stathan, gent., one, &c., E. 6 G. 4.
3. Case for an injury done to plaintiff's re- versionary interest in land, by cutting and carrying away branches of trees growing there. Second count in trover for the wood carried away. It appeared in evidence that the land was let by the plaintiff to the occupier under a written agreement: Held, that in order to support| the first count the plaintiff was bound to Debt on bond. produce it.
The plaintiff proved that the defend- ant carried away some branches of the trees, but gave no evidence of the value: Held, that he was entitled to nominal
Plea, that before the making of the bond plaintiff carried on the wine and spirit trade, and was induced by her two sons to sell it; that she did sell it, advanced the proceeds and what other money she had, amounting to 1000, to
her sons, to place them out in busi- ness, and thereupon, afterwards it was agreed that each of the sons should give her a bond with a surety to secure the payment of an annuity of 40l. per an- num. That the bond in question was given in pursuance of that agreement, and for the considerations therein men- tioned, and no memorial of it enrolled, wherefore, the bond was void. Replica- tion that the bond was not given in suance of the agreement, and for the con- siderations mentioned in the plea. The jury found that it was so given in the terms of the plea: Held, that the plea did not show the annuity to have been granted for a pecuniary consideration, so as to bring it within the 17 G. 3, c. 26, and the plaintiff had judgment.
There were other pleas upon which issue were taken, and the jury not hav- ing found any verdict, as to them, the court awarded a venire de novo. Keats, (in error,) E. 6 G. 4.
1. Where overseers' accounts, allowed by three justices, were delivered to the suc- cessors so late that they could not appea! to the next sessions: Held, that an ap- peal to the next practicable sessions was in time, and that the justices might then respite the appeal, although the respond- ents objected to the delay. The King v. Thackwell and others, E. 6 G. 4.
2. Where notice of appeal against an order for diverting a footway was given, and the order was not filed with the clerk of the peace for enrolment, but the justices who made it, before the next quarter ses- sions, gave the appellant notice that they abandoned the order: Held, that the jus- tices at sessions had no power to award to the appellant the costs of preparing to try the appeal.
Semble, that the right of appeal against such an order depends upon the 55 G. 3, c. 68, s. 3, and not the 13 G. 3, c. 78, s. 80. The King v. Wing, E. 6 G. 4. 184 3. In appeal against an order of removal, the justices at sessions were equally di- vided in opinion upon a question of fact on which the settlement of the pauper depended, the sessions thinking that it lay on the respondent parish to establish their case to the satisfaction of a majo- rity of the court, quashed the order of removal. The sessions having decided the case, this court refused a mandamus.
Quære, If the sessions ought to have adjourned instead of quashing the order. The King v. The Justices of Monmouth- shire, M. 6 G. 4.
ARBITRAMENT. Where two parties entered into an agree-
arrested B. on an affidavit of debt for money paid to his use, but did not de- clare until ruled to do so, and soon after- wards discontinued the action, and paid the costs: Held, that this was sufficient prima facie evidence of malice, and the absence of probable cause to support an action for a malicious arrest. Nicholson v. Coghill, E. 6 G. 4.
ASSAULT AND BATTERY. See TRESPASS.
A. being seised of an ancient mill, to- gether with a stream of water, diverted out of a river, and flowing from thence unto her mill, and B. being possessed of other mills, together with a stream of water diverted out of the same river, above the stream of A., by means of a head wear, and flowing from thence through the lands of A. down to B.'s mills, as appurtenant to the same: B. erected upon other lands, below the lands of A., and near the said watercourse, two other mills, whereby it becoming neces- sary for him (B.) to have a larger supply of water, he widened and deepened his watercourse in the soil of A., and raised and heightened the head wear, and there- by diverted the greatest part of the water into the watercourse for the use of his mills, so that the water was prevented from flowing down to the mill of A. so copiously as it had formerly done, and thereby A.'s mill became of no use. having recovered damages in one action against B. on this account, and having afterwards brought a second action for subsequent damages, in order to prevent all further disputes B. agreed to take a grant from A. of the use and benefit of the watercourse so widened and deepened, and of the liberty of diverting the water out of the river. By lease reciting these facts A., in consideration of 1500/ paid by B., demised to B. the use of the wa- tercourse so widened and deepened as aforesaid, and the free liberty of divert- ing so much of the water of the river into and along the watercourse as should be necessary for the use of B.'s mills habendum for the use of ninety-nine years, if three persons therein named
should so long live, at an annual rent. Soon after the execution of this deed, A.'s mill was destroyed. B., or those claim- ing under him, continued to enjoy the watercourse and the use of the water The during the term, and paid the rent. lease having determined by the death of the last surviving cestui qui vie, the per- son claiming under the grantee continued to enjoy the watercourse in the manner described in the grant, and paid rent for it. The reversion in the lands, upon which A's mill formerly stood, having vested in C., it was held that the latter might maintain indebitatus assumpsit for the use and occupation of the water- course and the water running therein, against the persons who claimed under B. Davis v. Morgan, E. 6 G. 4.
2. Where the plaintiff in assumpsit alleged that in consideration that he would buy a quantity of sheathing copper of the defendant, at a certain price, defendant undertook that it should be good, sound, substantial, and serviceable copper: Held, that this warranty was not proved by showing a purchase of copper sheath. ing at the ordinary market price, no ex- press warranty having been given.
Quare, Whether such evidence would have been sufficient to prove an allega- tion that the defendant promised that the article sold should be reasonably fit for sheathing copper. Gray and another v. Cox and others, E. 6 G. 4.
3 A. being indebted to B., gave him an order upon C., his (A.'s) tenant, to pay the amount out of the next rent that would become due. B. sent the order to C., but had not any direct communica- tion with him upon the subject. At the next rent day C. produced the order to A., and promised to pay the amount to B., and upon receiving the difference be- tween that and the whole rent, A. gave a receipt for the whole: Held, that B. could not recover the amount of the order from C. in an action for money had and re- ceived, or on an account stated. Wharton v. Walker, E. 6 G. 4.
4. By power of attorney, the colonel of a regiment appointed A. B. his true and lawful agent for him, and in his name to ask, demand, and receive from the pay- master general of the forces all such pay and allowances as might become due and payable unto him, the colonel, the commissioned officers, noncommissioned officers, and privates of the regiment. A. B. having received a sum of money from the paymaster general under this autho- rity, afterwards became bankrupt, the colonel being then indebted to him for clothing furnished to the regiment: Held, that A. B. must be taken to have received the money from the paymaster general in his character of agent to the colonel,
and that the latter was entitled to set off, in an action brought by the assignees for. a sum due for clothing, the monies re- ceived from the paymaster general by the agent before his bankruptcy. Knowles and others, assignees of Gilpin v. Sir A. Maitland, Bart., E. 6 G. 4,
By a turnpike act it was enacted, that no action should be commenced against any person for any thing done in pursuance of the act until twenty-one days' notice should be given to the clerk of the trus- tees, or after sufficient satisfaction or tender thereof had been made to the party aggrieved, or after six calendar months next, after the fact committed, and that every such action should be brought in the county or place where the matter should arise, and not elsewhere, and the defendant should and might, at his elec- tion, plead specially, the general issue, not guilty, and give in evidence that the same was done in pursuance and by the authority of the act: Held, in assumpsit against a toll collector, brought to recover back money alleged to have been exacted by him, improperly, as toll, that twenty- one days' notice of action ought to have been given, and that the action should have been brought in the proper county. Waterhouse and others v. Keen, E. 6 G. 4.
In assumpsit by an executrix on a prom- issory note for 100/. made in 1814, and payable to her testator, and for money had, &c. The defendant on being applied to for payment of interest, stated that he would bring her some on the following Sunday: Held, that although this was an admission that something was due, still, as it did not appear what the nature of the debt was, or that it was due to the plaintiff as executrix, or in her own right, or that it was one for which assumpsit would lie, the plaintiff was not entitled to recover even nominal damages, and a nonsuit was entered. Green Executrix of D. Boaz v. Davies, E. 6 G. 4. Where a declaration in assumpsit alleged, that in consideration that plaintiff would retain and employ defendants to lay out a sum of money in the purchase of an annuity, they undertook to do their duty in the premises; that plaintiff did retain and employ them, but defendants did not do their duty, but on the contrary took an insufficient security for the payment of the annuity, whereby plaintiff lost the money: Held, on motion in arrest of judgment, that the count was bad, inas- much as it did not state that any reward was to be paid to the defendants, or that they were employed in any particular character, so as to make them responsi ble for taking a bad security, although not guilty of negligence or dishonesty.
Other counts alleged that the defend-
ants at the time when they lent the mo- ney, knew that the security was insuffici- ent, but did not allege that the plaintiff had sustained any damage.
Semble, that on that ground those counts were also bad. Dartnall v. Howard, and another, T. 6 G. 4. 345
3. A judgment obtained in one of the supe- rior courts in Ireland, since the union, is not a record in England, and assumpsit is maintainable upon such a judgment. Harris v. Saunders, T. 6 G. 4. 9. Where in assumpsit plaintiff declared, that he had bargained and agreed with one J. E. for the purchase of certain free- hold houses at a certain price, and defend- ant, in consideration that plaintiff would sell and give up to him (defendant) the said bargain, and suffer him to become the purchaser of the houses, defendant promised to pay 401., and averred that 1. plaintiff did give up the bargain to de- fendant, and suffered him to become the purchaser, and that defendant did accord- ingly become the purchaser, and take the said bargain, and obtain a conveyance from J. E. on the terms aforesaid, but that defendant had not paid the 40: Held, after verdict for the plaintiff, that it must then be presumed that the bar- gain between plaintiff and J. E. was in writing; and that the giving up of that contract to defendant was a sufficient con- sideration for his promise. Price v. Sea- man, (in error) T. 6 G. 4.
10. Assumpsit for goods sold and delivered. Plea, that the goods sold and delivered to defendant by A., the factor and agent of plaintiff, with the privity of plaintiff, at and for the goods of A., and that the de- fendant did not know that the goods were not the property of A.; that at the time of the sale and delivery, A. was, and still is indebted to defendant in more than the value of the goods, and that defendant is ready and willing to set off and allow to plaintiff the value of the goods, out of the monies so due and owing from A.: Held, on special demurrer that the plea was good. Carr v. Hinchliffe, T. 6 G. 4. 547
1. An articled clerk to an attorney held the office of surveyor of taxes during the term of his clerkship. But it appeared upon affidavit that for more than three of the five years for which he was bound, his service had been given to the attor ney to whom he was articled. He after- wards bound himself to another attorney, and served him for two years; it was held that his service under the first arti- cles could not be coupled with his service under the second. In the Matter of Peter Taylor, Gent., one, &c., T. 6 G. 4.
341 2. An attorney of the superior courts can-
A. agreed with B. for the absolute pur- chase of a ship for the price of 7,8504. but A. being unable to pay the purchase money, it was stipulated that the sale and transfer of the ship should be deferred until he could pay the purchase money in the manner thereinafter mentioned, and that in the meantime B. should continue the legal owner of the ship, and should be responsible for her outfit, &c., so as to enable the ship to proceed on her intended voyage to India and back, under the com- mand of A. and on his account. Cove- nants by A. to pay to B. all monies, costs, and charges which, since the completion of the last voyage, had been paid by him on account of the outfit, or costs of sup- plying the ship, and the premiums of in- surance, until the transfer was made, and also that A. should pay all port charges and disbursements subsequent to the sail- ing of the ship on her then intended voyage, and to pay the purchase money in manner following: first, by two instal- ments of 500 each, the further sum of 4000l. by bills of lading and invoices for goods shipped on board the ship for her then intended voyage, and which goods were to be made deliverable to B. or his assigns, to the intent that he might dis- pose of the same in India, and invest the proceeds in other goods to be shipped on board the ship, and to be made deliver- able to B. in London, or invest the same in bills, and then the net amount of such goods or bills to be in further payment of the purchase money. Covenant by B., that at the expiration of three months next ensuing, the arrival and report in- wards of the ship in London, from her then intended voyage, and upon A.'s pay- ing the sum thereby intended to be se- cured, and performing the covenants therein contained, that he, B., would transfer to him the ship. At the time of the execution of the agreement, the ship was in the port of London, where she was
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