Court of Common Pleas.--Holding v. The Liverpool Gas Company. tinct issue on each of the counts in the succeeded in pointing out a material disdeclaration; and therefore, according to tinction between this case and that of the decision in Kilburn v. Kilburn, 13 Kilburn v. Kilburn; and I should not be Mee. & W. 671, there should be a dis- disposed to go further than the strict terms tinct finding on each of these six issues. of that decision. In that case there was That case is, however, very distinguish-no finding in terms on any of the issues, able from this. The arbitrator in that case made no award on the separate issues, but merely found that the defendant was indebted to the plaintiff in 697. The court, in giving judgment in that case, say, that though this finding disposes of the issues of payment and set-off, yet it leaves the issue on the plea of non-assumpsit undisposed of. The issue on the plea of non-assumpsit is here, however, distinctly found in favor of the plaintiff. There is but one promise, and whatever is the extent of that promise, whether divisible or not, it is put in issue by the plea of non-assumpsit; and whatever is the effect of that plea, it is all found in favor of the plaintiff. In Stonehewer v. Farrer, 14 Law Jour. N. S. Q. B. 122, the point was not decided; but it is clearly intimated by Wightman, J., in his judgment, that this finding would be sufficient. In Cooper v. Langdon, 9 Mee. & W. 60, an award of a general verdict for the defendant was held sufficiently final. It is therefore submitted, that the arbitrator has disposed of all the issues. Lush, in support of the rule.—It is submitted, that Kilburn v. Kilburn, 13 Mee. & W. 671, is not distinguishable from this case, and that the arbitrator has not decided upon all the issues. The counts were the same in that case as in this, with the exception of the plea of tender. There are, therefore, three distinct issues upon each count of the declaration. Nonassumpsit is admitted to raise a distinct issue on each count of the declaration. The defendant, by that plea, denies that he promised on either count, not on all the counts put together; and the arbitrator finds the plea of non-assumpsit for the plaintiff, or, in other words, that he did promise, but does not say on which count. The ruling in the case of Kilburn v. Kilburn, decides that this is not a sufficient finding. That case has been since held good law in Morgan v. Thomas, 9 Jur. 92, in the same court. but only a general finding, that the defendant owed the plaintiff a certain sum of money, which left it uncertain upon which count the plaintiff was entitled to recover. Let us see what are the issues in this case. There are three counts and four pleas, on each of which issue is joined; and the finding of the arbitrator is, on the first, third, and last issues for the plaintiff; and on the second, for the defendant. There can be no doubt what is meant by the first, third and last issues; and the only question raised is as to the plea of non-assumpsit : and it appears to me that that is equally clear, and that the arbitrator meant by the first issue, all that is comprised under the plea of non-assumpsit. This is the reasonable construction of the words. But an objection is made, that the first issue is divisible and raises several subissues, and no doubt it does so; and if any reason could be shown, upon the face of the award, that he meant to fix the finding upon any particular sub-issue, there might be something in the objection; but it is clear he meant it to apply to all the sub-issues which the plea of non-assumpsit raises, all of which he finds for the plaintiff. Then it is said, we cannot tell how much he considers owing to each count; but that can make no difficulty. The only object of the separate finding is to dispose of the question of costs, and for that purpose it must be taken, that the arbitrator has found that the defendant owes something on each of the counts. Rule discharged. Court of Common Pleas. Before the Right Honorable Sir NICHOLAS C. HOLDING V. THE LIVERPOOL GAS COM- NEGLIGENCE-GENERAL ISSUE. COLERIDGE, J.-I think Mr. Mellor has In the absence of any express statutory enactment Court of Common Pleas.—Holding v. The Liverpool Gas Company. there is no precise duty imposed upon a gas com- was by a tube or pipe, which communipany supplying gas to a dwelling-house, to con-cated with the main in the street, and which struct a stop-cock on the pipe outside the house, so that, upon receiving a notice no longer to passed through the outer walls into the supply the gas, the company may cut off the meter, and from this supplied two lamps supply completely from the house. in the house, to each of which it was fitted. Where, therefore, a fire occurred in an uninhabited There was a stop-cock to each, between house, owing to the escape of gas, a previous the inside of the wall and the meter, of notice having been given to the gas company, that no further supply was wanted, and it appeared which the tenant had the key, and he that there was a stop-cock inside the house, could stop the gas entering the house, if which if turned, the escape could not have taken such stoppage was required; but the complace. Held, that the owner of the house could pany had no stop-cock to the gas on the not recover against the company for the damage outside of the meter. Upon this evidence, done by the fire. Held, also, that the general issue raised this de- the learned judge ruled, that no neglect of any duty cast by law upon the defendants had been shown; and the plaintiff was accordingly non-suited. A rule having been obtained on the part of the plaintiff, calling upon the defendants to show cause why the nonsuit should not be set aside, and a new trial had on the ground of misdirection. fonce. Talfourd, Serj't., showed cause :— THE declaration in this case stated, that the plaintiff was possessed of a house, and that thedefendants were possessed of large quantities of dangerous gas, and that the defendants took so little and such bad care of it, that it passed into the house of the plaintiff and exploded, and damaged the plaintiff's house. Plea, not guilty. At the trial, which took place before Creswell, J., at the summer assizes at Liverpool, in 1845, it appeared that the plaintiff was the owner of a house which had been let out to successive tenants, the last of whom had been in possession for TINDAL, C. J., delivered the judgment about two years, the house having been of the court.-The plaintiff in this case supplied with gas by the defendants dur- having been nonsuited upon a trial that ing the whole term of his tenancy, by came before my brother Creswell, at the means of pipes and fixings, which were Liverpool assizes, a rule to show cause put up and fixed within the house, at the was granted, why such a nonsuit should expense of the plaintiff, the landlord, and not be set aside, and a new trial had, on all of which were his property. The last the ground of misdirection. The declatenant had quitted the house about ten ration stated, that the plaintiff was posdays before the explosion took place. sessed of a house, and that the defendants Previously to his quitting, he gave notice were possessed of large quantities of danto the company that no further supply gerous gas; and that this the defendants would be wanted by him, and requested took so little and such bad care of, that it them to remove the lamp from the dining passed into the house of the plaintiff, and room, which was his property. The plain- exploded, and damaged the plaintiff's tiff left the house in the care of a servant house. There was upon the record a on the 21st March, and there was no ap-general issue of not guilty; and the learned pearance of the pipe having been left im- judge ruled, on the evidence brought forproperly, and there was no smell of gas ward, that the injury was not occasioned in the house. No explanation was given by the neglect of any duty cast by law as to the mode in which the escape of gas upon the company. We think, on the facts or the explosion, which took place on the 1st produced at the trial, such direction was April, was occasioned; but it might fairly right. The plaintiff was the owner of a be inferred, that the inside pipe, between house which had been let out to succesthe gas meter and the burner, had been sive tenants, the last of whom had been cut by some wrong-doer during the time in possession for about two years, the the house was empty. The mode by house having been supplied with gas by which the gas was conveyed to the house, the defendants during the whole term of his In Bankruptcy.-Ex parte Gover re Humphreys. tenancy by the means of pipes and fixings, though it appeared in evidence that a difwhich were put up and fixed within the ferent company had been formed in the house at the expense of the plaintiff, the same town, and that such company had landlord, all of which were his property. used an outer stop-cock in the same way; The last tenant had quitted the house but they had no obligation, as it appears about ten days before the explosion took to us, to do so; and as the legislature is place. Previously to his quitting, he gave silent on this point, the common law would notice to the company that no further sup- impose no precise duty on the defendants, ply would be wanted by him, and re- or any other duty than that which is exquested them to remove the lamp from pressed in the doctrine generally held, the dining room, which was his property. the duty of using proper and sufficient The plaintiff left the house in the care of care in the supply of gas. Now, looking a servant on the 28th March, and there to the liability of the defendants in this was no appearance of the pipe having point of view, it appears to us that the been left improperly, and there was no injury sustained by the plaintiff is not smell of gas in the house. No explanation solely applicable to the want of due care was given as to the mode in which the es- on the part of the defendants, but that the cape of the gas or the explosion which took plaintiff has by his own voluntary act, place on the 8th April, was occasioned; been contributory to it himself. The plainbut it might fairly be inferred, that the in- tiff knew that the pipe which brought the side pipe, between the gas meter and the gas into the house, still remained as before, burner, had been cut by some wrong- with the stop-cock in the inside of the doer, who had entered the house during house, which would prevent the gas from the time it was empty, and during the in- being supplied to the house if properly terval between those days. The mode turned off; and the house being without by which the gas was conveyed to the a tenant, was under his own charge and house, was by a tube or pipe, which com- care. We think, therefore, the plaintiff municated with the main in the street, was himself wanting in ordinary care, in which passed through the outer walls into not seeing that the stop-cock in the inside the meter, and from thence supplied two was closed, which would effectually have lamps in the house, to each of which it prevented the gas from escaping, and this was fitted. There was a stop-cock to defence, in accordance with the decision each, between the inside of the wall and in the case of Bridge v. The Grand Juncthe meter, of which the tenant had the key, tion Railway, 3 Mee. & W. 244, can be and he could stop the gas entering the made under the general issue. We therehouse altogether, if such stoppage was re- fore, think the nonsuit right and the rule quired; but the company had no stop-for setting it aside must be discharged. cock to the gas on the outside of the meRule discharged. ter. On the part of the plaintiff, it was contended, that it was the duty of the defendants, on notice by any tenant of the house that the supply of gas was no longer wanted, to turn off the gas completely In Bankruptcy. COURT OF REVIEW, from the house; that they had no right EX PARTE GOVER re Humphreys.—1st to introduce the gas into the house after Aug. 1846. ASSIGNEE-BIDDING AT SALE OF BANK- Where an assignee, without leave, bids at the given to the company by the legislature, THIS was the petition of the creditor of Notices of New Books. the bankrupt, for the purpose of obtaining in the profession. The object of the ing the order of the court that the assignee, author is thus expressed in his preface. who had bought in part of the bank- "There has not been heretofore any rupt's property at sale by auction, might complete compendium of the law of this be held to his bargain. The bankrupt state, relating to the office of surrogate, was the proprietor of an hotel in the Hay- and the rights, duties and liabilities of exmarket, which was held subject to a mort-ecutors, administrators and guardians. gage. The hotel had been advertised for The want of such a compendium has been sale by public auction, and at this, the frequently expressed, and this want the biddings had been offered up to 6007., one of following pages are intended also to supply. the assignees (the respondent) bade 6501. "The book consists, as its title indicates, A protest was entered by the mortgagee of the statutes and a summary of the juagainst the right of the assignee to bid at dicial decisions of New-York, having reall, without leave of the court. The as-ference to the subjects which it proposes signee ultimately bade 6707. for which sum the hotel was knocked down to him. Shapter, for the petitioner, cited ex parte Lewis, 1 Glyn & J. 67. Forster, for the mortgagec, cited ex parte Cuddon, 3 Monk. D. & De G. 302. to consider, with directions and suggestions for practice in the surrogates' courts, and for facilitating the safe performance. of their duties by executors, administrators and guardians. The whole is arranged in the form of a treatise, and recourse has been freely had to the standard elementary authors, for such rules of law other than those expressly laid down in the statutes and decisions which have been mentioned, as were deemed applicable to the subjects within the immediate scope of the work, and requisite to be included to complete the design with which it was undertaken. The elegant, learned, and comprehensive treatise of Mr. Williams, on the law of executors and adminThe CHIEF JUDGE.-Then let the pro-istrators, and Mr. Troubat's valuable notes perty be re-sold, and let the assignee to the American edition of that treatise, make good such loss, if any, as may be have contributed important aid in this paroccasioned by the re-sale. ticular." Swanston and Rogers, for the respondent, (the assignee.) The bidding had been bona fide for the benefit of the estate. The CHIEF JUDGE inquired whether the respondent wished for a re-sale. The counsel stated that he did. NOTICES OF NEW BOOKS. THE OFFICE OF SURRogate, Surrogates, and SURROGATES' COURTS, and executors, administrators and guardians, in the State of New-York. A compilation of the statutes and a summary of the judicial decisions of the State of New-York, relating to the office of surrogate, the proving of wills, the granting of probate, administration and guardianship, and the rights, duties and liabilities of executors, administrators and guardians, arranged in the form of a treatise. By ISAAC DAYTON, Counsellor at law, with an Appendix, containing several decisions upon the above named subjects, not elsewhere reported, and Forms and Precedents for Practice in the Surrogates' Courts, and for the use of executors, administrators and guardians. NEW-YORK: BANKS, GOULD & Co., 144 Nassaust.; VAN NORDEN & KING, 45 William-st.-ALBANY GOULD, BANKS & GOULD. We have examined the work with some attention, and we think that Mr. Dayton has presented to the profession a very valuable book. Whatever change may be made by the new constitution with reference to the office of surrogate, Mr. Dayton's Book will have to be consulted in all matters connected with the administration of the effects of a testator or intestate. It is certainly the best book on this subject extant, and will, we have no doubt, be found in the office of every practising lawyer. HUNT'S MAGAZINE. We are glad to find this work finding its way into the lawyer's office as well as the merchant's. The number for January, fully supports the reputation it has so THIS is a work that has long been want-justly acquired. THE New-York Legal VOL. V.] NEW-YORK, MARCH, 1847. PRIVILEGE. DISTINCTION BETWEEN THE CASE OF A DE- Observer. [MONTHLY PART. His Lordship having laid down the general rule, as to the necessity of unreserved disclosure by defendants, proceeds to deal with the difficult question, how far and under what circumstances shall this geneACCORDING to the general rule, every de- ral rule be departed from, where profesfendant is bound to discover all the facts sional confidence is attempted to be set up within his knowledge, and produce all as an impediment. "The arguments," he documents in his possession, which are remarks," in some late cases seem to have material to the case of the plaintiff. assumed that concealment of the truth, However disagreeable it may be to make was, under the plausible name of protecthe disclosure, however contrary to his tion or privilege, an object which, it was personal interests, however fatal to the particularly desirable to secure, forgetting, claim upon which he may have insisted, as it would seem, that the principle upon he is required and compelled, under the which the court has always acted, is to most solemn sanction, to set forth all he promote and compel the disclosure of the knows, believes or thinks, in relation to the whole truth relevant to the matters in matter in question. The plaintiff being question, and that every exception requires subject to the like obligation on the re- a distinct and sufficient justification. quisition of the defendant in a cross-bill, singular that it should have become necesthe greatest security, which the nature of sary to observe, that cases of discovery from the case is supposed to admit of, is afforded defendants in courts of equity, which are for the discovery of all relevant truth, and the only cases now under consideration, by means of such discovery, a court of relate to the admissions of parties, and equity, notwithstanding its imperfect mode not the testimony of witnesses; that these of examining witnesses, has at all times are not cases in which parties in all courts, proved to be of transcendent utility in the are held entitled to insist (as their own administration of justice. It need not be privilege,) that their legal advisers shall observed, that what risks must attend all not be permitted to disclose confidential communications." attempts to administer justice, in cases where relevant truth is concealed, and important it must be, to diminish those risks; and that, if there be any cases in which, for predominant reasons, parties ought to be permitted or to be held privileged to conceal relevant truth, those cases ought to be strictly defined and strictly limited by authority." These are the general remarks which fell from the Master of the Rolls, (Lord Langdale), in disposing of an important case on privilege, recently reported by Mr. Beavan, Flight v. Robinson, 8 Beav. 22. VOL. V. 7 We are, therefore, to keep in view the distinction here pointed out, between the rules which apply where the question is, what discovery shall be demanded from a defendant, and the maxims which govern in those other cases where the court has to decide, how far testimony may be required from a witness. In other words, the privilege of a party is one thing; the privilege of a witness is another, and it may be, a very different thing. The best public consequences result from compelling an unreserved disclosure by defend |