Digest of Cases.

COMMON LAW.

Comprising the Common Law Cases (not previously inserted) in the following

11 Queen's Bench, part 5.

12 Queen's Bench, part 3.

7 Common Bench, parts 3 and 5. 8 Common Bench, part 1.

4 Exchequer, parts 1, 3 and 4.

Reports:

1 Queen's Bench Practice, part 4.

6 Queen's Bench Practice, part 4. 19 Law Journal (N. S), parts 11 and 12. 20 Law Journal (N. S.), part 1.

ACTION.-Staying, where a tender is pleaded.-Where a plaintiff sued in a superior court for 91. 10s., and the defendant pleaded, except as to 81. 14s. 6d., never indebted, and to that sum a tender, and the jury found for the plaintiff on the first issue to the extent of 10s., and for the defendant on the plea of tender, the court refused to stay the proceedings in an action brought for a sum under 40s., but left the plaintiff to enter a suggestion under the County Court Act (9 & 10 Vict. c. 95, s. 129). Nurdin v. Fairbanks, 1 Q. B. P. 617.

ADVERSE POSSESSION.-Lands came to M., D. and E. as copartners by devise. M. married; and then M. and her husband and D. suffered a recovery of their portions to the uses respectively of M.'s husband for life, remainder to M. for life, remainder to the heirs and assigns of the survivor, and of D. in fee. Afterwards D. and E. married; and by agreement in 1759, recited to be "for drawing a deed of partition," the three husbands agreed to take the devised property and other premises which had come to the wives as coheiresses at certain specified values, and to share the money arising from the estates by means of that division, share and share alike, and it was declared that that agreement should endure till the deed of partition should be executed. The husbands and wives entered upon the respective portions; and they and persons claiming under them were possessed thereof respectively till ejectment was brought as after mentioned. The husband of E. died in 1798, having devised the estates so held by him (not being part of the first devised lands) to E. and to his son, the rents to be equally divided between them

VOL. XIV. NO. XXVI.-DIG.

B

during E.'s life; after her death, to the son in fee. The widow and son entered and took the rents accordingly. The son died in 1802, leaving T. T. M., his eldest son and heir at law. The widow died in 1818. From that time till 1832, T. T. M. received the rents of the premises held by E. and her son as above stated. In 1832 he brought ejectment for E.'s undivided third part of the original estate. A case was stated for the opinion of the court, with liberty to them to draw inferences as a jury might, the questions being, whether the plaintiff was barred by the partition begun 1759, or by the Statute of Limitations. The above facts were set forth; there was no evidence of fine or recovery, or of any other proceeding, to carry the agreement of 1759 into effect, except that in 1830 the defendant, then holding the lands mentioned in the declaration, had written to T. T. M., the lessor of the plaintiff, requesting him to execute a deed, and go through some legal forms, to which T. T. M.'s wife also was required to be a party. The lands held by the defendant were those appropriated by the agreement to D.'s husband, who had died intestate, and D. surviving him, had devised them to a party who had entered in 1801, and under whom defendant came in: Held, that on the express statements in the case, no adverse possession appeared, and therefore none which, before stat. 3 & 4 Will. 4, c. 27, could have barred the ejectment. That, even if the court could have presumed the suffering of a recovery from length of possession, that presumption was excluded here by the express evidence of a written agreement; and the court could at most only presume something done which would give effect to that instrument. But that, as no more appeared to be contemplated by the agreement than a deed which would not have barred the estate tail, the plaintiff was entitled to judgment. Doe d. Millett v. Millett, 11 Q. B. 1036.

AFFIDAVIT.-1. To hold to bail.-Upon an application to the court to rescind a judge's order for holding the defendant to bail, under the 3rd sect. of the 1 & 2 Vict. c. 110, no other affidavits can, in general, be used than those which were before the judge when he made the order. Therefore fresh affidavits cannot be used, on an application of this kind, to show either that the plaintiff had no cause of action, or that the defendant was about to quit the country. But fresh affidavits may be used on an application under the 6th section to discharge the defendant out of custody, although a previous application has been made to a judge at chambers under that section. Where the affidavit on which the order to hold to bail is granted disclosed a cause of action for unliquidated damages only, it should specify the amount of damage sustained by the plaintiff. Semble, where, however, a judge had granted an order to hold to bail upon an affidavit which did not contain such a statement, the court refused to rescind the judge's order, or to discharge the defendant out of custody, as the judge might have been satisfied, upon the facts stated in the affidavit, that the plaintiff had sustained damage to the amount for which he ordered the defendant to be held to bail. An affidavit to hold to bail, in an action for criminal conversation with the plain

tiff's wife, stated that she had been taken away from the plaintiff about two years ago, and the plaintiff had only recently discovered that she had been living ever since with the defendant in adultery, but omitted any positive averment that she was the plaintiff's wife when she was taken away, or that the defendant had committed adultery with her: Held sufficient. Where an order has been made to hold a defendant to bail, it is not necessary that the affidavit upon which it was made should show that a writ of summons has been first issued, as the court will intend that the fact was proved to the satisfaction of the judge. Bullock v. Jenkins, 1 Q. B. P. 645.

2. Irregularity-Prompt application.-A judge's order to allow the plaintiff to sue in formâ pauperis had been obtained on an affidavit which was defective for the want of an addition of the plaintiff's profession or occupation: Held, that the defect was a mere irregularity; and that, after several months had elapsed, in which the defendant might have examined the affidavit, and in which various steps had been taken in the cause, it was too late for the defendant to move to set aside the judge's order for the defect, and dispauper the plaintiff, although it was sworn that the defendant had only acquired knowledge of the defect three days before the motion. Seymour v. Maddocks, 19 Law J. (N. S.) Q. B. 525.

3. Suggestion under the County Courts Act.-Where the defendant's affidavits, on a motion for a suggestion under the County Courts Act to deprive the plaintiff of costs, stated that the residence of the plaintiff was within twenty miles of that of the defendant, and that the cause of action arose wholly within the jurisdiction of the County Court of B., which facts were denied by the affidavit of the plaintiff, the court refused to determine those questions on affidavits, and directed a suggestion to be entered. Lewis v. Forsyth, 20 Law J. (N. S.) Exch. 25.

And see JURAT. PRACTICE.

AGENCY BUSINESS. See ATTORNEY.

ALLOTTEE.-Recovery of Deposit-Evidence. In an action by an allottee of shares in a projected joint-stock company to recover back the deposit, the plaintiff gave secondary evidence of the letter of allotment, the original having been lost, but did not produce the letter of application. The letter of allotment was headed, "Not transferable." The plaintiff also gave in evidence the banker's receipt stamped with a 20s. stamp. The deposit was paid in the year 1841, and in the year 1842 the plaintiff wrote a letter complaining that he had not received his shares in exchange; to which an answer was returned that every effort was being made to apply to parliament. Nothing further was done: Held, in the Exchequer Chamber, on the exceptions to the ruling of Pollock, C. B., there was sufficient evidence of the abandonment of the scheme, and that the plaintiff was entitled to recover as upon a failure of consideration; for if there was no letter of application, the letter of allotment and payment of the deposit constituted the contract; if there was a letter of application

the words "not transferable" imposed a new term; also, that the banker's receipt so stamped was admissible in evidence. Chaplin v. Clarke, 4 Exch. 403.

AMENDMENT. See PRACTICE.

ANNUITY.-Setting aside of.-To induce the court to set aside a warrant of attorney given to secure an annuity, on the ground of an improper returning or retaining of part of the consideration money, the fact of such returning or retaining must be distinctly and unequivocally sworn to. At the time of executing an annuity deed, the grantor, an attorney, received the full amount of the consideration money, 170l., and immediately paid thereout 81. 6s. 6d. for the costs of preparing the securities and inrolling the memorial, and 20l. to the grantee's agent, in satisfaction of a liability to him (the agent) upon a bill of exchange drawn by the grantor upon and accepted by his father, and which was within a week of maturity: Held, that this was not such a transaction as would warrant the court in setting aside the securities eleven years after the date of the grant. Barber v. Thomas, 7 C. B. 612.

APPEAL.-1. Costs-6 & 7 Vict. c. 18.-Where the respondent appears, but the appellant does not, the court will affirm the decision, with costs. Borough of Newport, Isle of Wight, appellant, Pring, respondent, 8 C. B. 13.

2. Statement of grounds of.-The 11 & 12 Vict. c. 31, s. 9, which enacts, "that no appeal shall be allowed against any order of removal, if notice of such appeal be not given as required by law within the space of, &c.," does not require that the statement of the grounds of appeal should be given within the prescribed time. Reg. v. Derby, Recorder of, 1 Q. B. P. 657.

And see MANDAMUS.

APPRAISER'S LICENCE. See PLEADING.

ARBITRATION.-1. Direction to pay sum awarded—Excess.— By a deed of reference between L. and a railway company, it was referred to an arbitrator to determine what sum of money was the value of certain land required by the company, and should be paid by the company for the purchase of it; and it was agreed that the purchase money should be paid to L. within three days from the date of the award, and that thereupon L. should execute a valid conveyance of the land, subject nevertheless to the payment of the amount into Chancery under the provisions of the Lands Clauses Consolidation Act. There was also a provision that the company should pay the costs of the conveyance and arbitration, according to the provisions of section 82 of the above-named statute. The award found the price, and directed the company to pay it to L. within the three days from the date of the award, and that thereupon L. should execute a conveyance. The award then directed the company to pay the costs of the conveyance pursuant to the above-named act, and also to pay the costs of the reference and award. On a rule nisi being obtained on the part of

L., calling upon the company to pay him the purchase money awarded, the company objected that the rule could not issue as the submission made it optional on the company to pay it to L. or into Chancery; that consequently the direction in the award to pay it to L. was an excess of authority, that the payment of the money was to be concurrent with the execution of the conveyance, and that thereupon L. was not entitled to demand the money without having executed the conveyance or shown a readiness to do so; that he was not entitled to the whole purchase money, but only to damages for breach of the contract; and that there had been no demand made for the costs awarded. The court notwithstanding these objections made the rule absolute. Lindsay v. Direct London and Portsmouth Railway Company, 19 Law J. (N. S.) Q. B. 417.

2. Enlarging time-Submission-9 & 10 Will. 3, c. 15-Pleading.-The 9 & 10 Will. 3, c. 15, is not confined to references of existing controversies. The 3 & 4 Will. 4, c. 42, s. 39, enables a judge to enlarge the time for making an award to a period beyond that to which the power of the arbitrator to enlarge is limited by the submission. To a declaration stating that the defendant covenanted that he or A. would pay the plaintiff 68007. by certain instalments, with interest thereupon at 47. per cent., with a proviso that in a certain event there should be deducted from the five last instalments sums not exceeding 48007., and that in that event the plaintiff should repay to the defendant and A. all interest which should have been paid in respect of the sum deducted, and that in default of payment of any of the instalments the whole should be recoverable; and averring that default had been made, and that no sum was deductable under the proviso; the defendant set out the deed on oyer, which contained a mutual covenant between the plaintiff, defendant and A., that if any disputes or differences should arise touching the sums which should be deductable under the proviso it should be and was thereby referred to an arbitrator, and that the said parties should abide by his award, so as it should be made on or before a certain day, with power to him to enlarge the time to a period not exceeding the 1st of July, 1847, and that the present submission should be made a rule of court; and the defendant then pleaded as to the five last instalments and interest thereon, that certain differences had arisen between the parties to the deed touching the sums deductable from the five last instalments; and that the plaintiff, defendant and A. did, in pursuance of the covenants in the indenture contained, submit to, refer, and did then refer the said differences to the said arbitrator, and the same were then referred to him to determine what sum (if any) not exceeding 48007. should be deducted by the defendant and A., or either of them, from the said five last instalments; that the arbitrator duly enlarged the time for making his award until the 30th of June, 1847; that before that day a judge's order was made further enlarging the time until the 1st of December, 1847, and that before that day the arbitrator awarded that the whole of the 48007., being the total amount of the said five last instalments, should