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.

465

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.

66

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.

ANNUITY.

See PAYMENT, 2.

187

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

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.

APPEAL.

Hick v.

69

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.

62

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.

846

ARBITRAMENT.
Where two parties entered into an agree-

4.

1.

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.

ASSUMPSIT.

21

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

A.

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.

8

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.

108

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.

163

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,

5.

7.

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,

173

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.

200

235

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

411

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.

525

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

ATTORNEY.

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