it void under the Insolvent Debtors' Act, and A. subsequently takes the benefit of that act, his assignees are not entitled to such goods.

Secus, if the agreement related to such goods as A. might have at the time of the execution of the assignment, their corpus not being ascertained at the time of the agreement. Mogg v. Baker, 195

2. Notice to Creditors by Insolvent.

To an action of indebitatus assumpsit in 1007. for goods sold and delivered, &c., the defendant pleaded his discharge from the cause of action under the Insolvent Act; to which the plaintiff replied, that although he, the plaintiff, was named and inserted by the defendant in his schedule, yet he had not any notice of the filing of the petition, or of the time appointed for the hearing upon it :-Held, on demurrer, that the replication was bad, as it did not allege that the plaintiff was a creditor to the amount of 5l., so as to be entitled to notice under the 42d section of the 7 Geo. 4, c. 57. Troup v. Boffi,

INSURANCE.

I. On Life.

615

(1). Concealment of Material Facts.

In an action on a policy of insurance effected by the plaintiff on the life of his wife, the declaration averred that the plaintiff had made statements, (inter alia), that the wife was not afflicted with any disorder which tended to shorten life, and that she had led, and continued to lead, a temperate life. The defendant pleaded, that before the making of the policy, and on divers times after that day, the wife had been and was afflicted with certain disorders, maladies, or diseases, to wit, delirium tremens and erysipelatous inflammation of the legs, all which the plaintiff before and at the

time of the making of the policy well knew. It appeared that at the time the policy was effected, the wife had been examined at the insurance office, and answered several questions put to her, but did not apprise the company of her having been affected with those complaints. The jury found that the plaintiff had not any knowledge of her having had these disorders: Held, that upon the issue raised on these pleadings, the wife not being the general agent of the husband to effect the policy, but only sent to answer particular questions, her knowledge was not in this respect the knowledge of the husband.

The wife had for several years been attended by A. B. up to her marriage with the plaintiff, and nearly to the time when the policy was effected. After her marriage, C. D., the medical attendant of her husband's family, had, on one or two occasions, when called in to the other members of the family, prescribed for her for a cold or some trifling matter. In answer to the question put to her at the office, "Who is your usual medical attendant?" she replied, C. D.:-Held, that the learned Judge ought not to have left it to the jury, on this evidence, to say which of the two was her usual medical attendant, but whether C. D. could be called her usual medical attendant at all. Huckman v. Fernie,

II. Marine.

(1). Deviation.

505

Assumpsit on a policy of insurance on the goods of a vessel called the Clipper, at and from Liverpool to any port or ports, place or places of loading and trade on the Coast of Africa and African Islands, during her stay and trade on the said coast and islands, and at and from thence to her port or ports of discharging in the United Kingdom, with leave to call at all

ports and places backwards and forwards, and forwards and backwards, without being deemed any deviation; with liberty for the said ship in that voyage to proceed and sail to and stay at any ports or places whatsoever, and with leave to load, unload, &c., goods wheresoever she might proceed to, with any ships, boats, &c., in loading and unloading included, particularly with liberty to tranship on board any vessel or craft in the same employ ; with an agreement that the vessel might be employed or used as a tender to any other vessel or ship in the same employ. The vessel arrived at Benin, in Africa, and stayed there thirteen months, during which time she was employed in conveying goods from a vessel in the same employ at the mouth of the river, to Camaroones, and putting them on board another vessel also in the same employ; but on her return with a homeward cargo was lost:-Held, that the learned Judge who tried the cause was right in telling the jury that the voyage to the Camaroones was a deviation, and that it was not an acting as a tender within the meaning of the policy:Held, also, that it was a proper question for the jury, whether her stay at Benin was unreasonable or no; and they having found in the affirmative, that it was warranted by the evidence. Hamilton v. Sheddon,

49

LANDLORD AND TENANT. 1. Payment of Rates by Tenant.

By a memorandum of agreement, certain marsh lands were demised by the plaintiff to the defendant, subject to a condition that the defendant should pay all outgoings whatsoever, rates, taxes, scots, &c., whether parochial or parliamentary, which then were or should be thereafter charged or chargeable upon or on account of the said marsh lands (the then présent land-tax only excepted):-Held, that an extraordinary assessment made by Commissioners of Sewers upon the lands, for a work of permanent benefit to the land, was within the meaning of the agreement.

The assessment was made in certain proportions upon the owners and

occupiers. For four years the defendant (the tenant) paid, in the first instance, both his own share and that of the plaintiff (his landlord), and upon each half-year's settlement of accounts for rent due, with the plaintiff's agent, who was ignorant of the agreement, the sum so paid was allowed towards the rent, and receipts were given for the balance:--Held, in an action brought upon the agreement, to recover the sums so allowed as arrears of rent, that the facts supported a plea of payment. v. Andrews,

2. Surrender.

Waller 312

LEGACY DUTIES.»›

1. The pendency of a suit in equity, at the instance of a legatee, praying that an account may be taken of the personal estate and effects of a testator received by the executors, and that the personal estate may be administered, and his legacy paid, is no answer to an application by the com missioners of stamps under the 42 Geo. 3, c. 99, if any duties have be come payable on legacies which have been paid, notwithstanding the 36 Geo. 3, c. 52, which provides that the Court in which such suit shall be instituted shall, in giving directions concerning the payment of legacies, take care that no allowance shall be made in respect of any legacy, &c., without due proof of the payment of the duties thereby imposed.

It is the duty of an executor to deduct the amount of legacy duty on payment of the legacy; and if he omit to do so, he will become personally responsible for it. In re Sam

2. A testator devised real estates to W. T. for life, with remainder to his first and other sons in tail, with remainder to T. P. for life, remainder to his first and other sons in tail, remainder to G. P. for life, with remainders over; and gave a power to the several persons who, by virtue of the limitations in the will, should be in actual possession of the estates, by deed or will to appoint any woman or women they should marry, by way of jointure, rent charges not exceeding 7501. per annum for life, to be issuing out of and chargeable upon the devised estates, clear of all taxes and deductions whatsoever. W. T. died without issue, and T. P. entered into possession of the estates, and by his will charged them with 750l. per annum by way of jointure to his wife, under the power, and died without

LIMITATIONS, (STATUTE OF).

(1). When it begins to run.

The defendant was indebted to the plaintiffs in a balance of 2245l., for which they held his overdue promissory note. In 1827, the plaintiff and defendant agreed that the defendant should pay the balance as follows:2457. in cash, and the remainder by annual payments of 300l. a year out of his salary as a consul abroad, and by the proceeds of certain wines consigned by him to India; and that the plaintiff should hold his promissory note as a security for the payment of the account. The 2451. was paid, and the 300l. was also duly paid in 1828 and 1829, but the defendant made default in payment of it in September 1830-Held, that the plaintiffs were entitled, at any time within six years from September 1830, to sue the defendant on the promissory note, or for the balance remaining due, on a count upon an account stated. Irving v. Veitch,

90

(2). Part Payment. Where a debtor draws a bill of exchange, to be applied in part payment

of the debt, and the bill is paid when due by the drawee to the creditor, it operates as part payment, to defeat the Statute of Limitations, only from the time of the delivery of the bill by the debtor, not from the time of its payment. Irving v. Veitch, 90 (3). What sufficient Acknowledgment within.

The following letter from the defendant to the plaintiffs' attorney was held not to be a sufficient acknowledgment of a debt to take the case out of the Statute of Limitations :— 'Since the receipt of your letter (and indeed for some time previously,) I have been in almost daily expectation of being enabled to give a satisfactory reply to your application respecting the demand of Messrs. M. against me. I propose being in Oxford to-morrow, when I will call upon you on the matter."

The construction of a doubtful document, given in evidence to defeat the Statute of Limitations, is for the Court, and not for the jury. If it be explained by extrinsic facts, they are for the consideration of the jury. Morrell v. Frith,

LIQUIDATED DAMAGES. See RESTRAINT OF TRADE.

MASTER AND SERVANT.

402

Declaration in case stated that the plaintiff was a servant of the defendant in his trade of a butcher; that the defendant had desired and directed the plaintiff, so being his servant, to go with and take certain goods of the defendant in a certain van of the defendant then used by him, and conducted by another of his servants, in carrying goods for hire upon a certain journey; that the plaintiff, in pursuance of such desire and direction, accordingly commenced and was pro

ceeding, and being carried and conveyed by the said van, with the said goods; and it became the defendant's duty to use proper care that the van should be in a proper state of repair, and should not be overloaded, and that the plaintiff should be safely and securely carried thereby nevertheless, that the defendant did not use proper care that the van should not be overloaded, or that the plaintiff should be safely and securely carried; in consequence of the neglect of which duties, the van gave way and broke down, and the plaintiff was thrown to the ground, and his thigh fractured: -Held, on motion in arrest of judgment, after verdict for the plaintiff, first, that it was sufficiently to be collected from the declaration that the defendant directed the plaintiff to go in the van; but, secondly, that, even in that case, the action was not maintainable. Priestley v. Fowler,

MONEY PAID.

1

L. & Co., being the bankers of K., received on his account a cheque for 100%. from one E. T., drawn by him upon the Bank of England, which cheque was lost by L. & Co. E. T., at the request of L. & Co., wrote to the Bank of England, requesting them not to pay the cheque if presented. E. T. was afterwards requested by L. & Co. to give them another cheque for the same amount, upon receiving an indemnity from all loss which he might sustain by so doing, which E. T. promised to do, and the indemnity was accordingly sent. E. T. subsequently wrote to L. & Co. to say he could not conveniently send the cheque, but that he would take the earliest opportunity of handing them the amount. L. & Co. were called upon and obliged to pay the amount of the lost cheque to K.:Held, under these circumstances, that an action by L. & Co. against E. T.,

for money paid, or on an account stated, could not be supported. Lubbock v. Tribe, 607

MONEY HAD AND RECEIVED.

1. The plaintiff having married a lady possessed of funded property, to which she was entitled by the settlement on her marriage with a former husband, they employed the defendant to dispose of it, and out of the proceeds first to pay off a mortgage of the former husband, and to prepare a settlement of the residue, the interest to be secured for the wife for life, with remainder to the plaintiff for life if he survived her, with reversion to her children: the defendant and two other persons to be trustees-Held, that although the defendant had paid over to the plaintiff certain sums out of the proceeds of the sale (after payment of the mortgage,) the plaintiff could not sue him for the residue, as money had and received to his use. Mileham v. Eicke, 407

2. Where an action was brought in the name of A. against B. on a bill of exchange, but it appeared that C., the drawer of the bill, was the real plaintiff, and that A. only lent his name because C. was unwilling that his should appear, and that A. gave no instructions to and had no communication with the attorney; and the attorney received a sum of money from B. on the settlement of that action:-Held, in an action for money had and received by A. against the attorney, to recover such sum, the jury having found that it was received for C. and not for A., that the plaintiff could not recover. Clark v. Dignam,

478

3. On the 1st September, 1834, a seizure of spirits was made by the officers of excise on the plaintiffs' premises. The plaintiffs applied to the Commissioners of Excise for the