Eng. Rep.]

This was an action to recover remuneration for medical attendance. The defendants denied their liability. The case was tried before Pigott, B., at the last Worcester Assizes, and the facts were as follows:-The plaintiff was a surgeon, exercising his profession near the Brettle Lane Station, upon the defendant's line. An accident occurred upon the line near that station, by which one Jones, a servant of the company, was injured. The station-master at Brettle Lane telegraphed to the company's general manager informing him of the accident. He telegraphed back, directing the station-master to secure medical attendance. The plaintiff was accordingly called in by the station-master to attend Jones. Upon this evidence it was objected for the defendants that there was no evidence to charge the defendants, the general manager having no sufficient authority for this purpose. A verdict was found for the defendant for the amount claimed, with leave for the defendants to move to enter a non-suit.

Huddleston, Q. C., now moved accordingly.A general manager has no authority to pledge the company's credit by employing a surgeon on their behalf. This was held in the case of a a station-master in Cox v. The Midland Railway Company, 3 Ex. 268. And the employment of a general manager is of the same character, though his duties are more extensive.

The Court refused a rule,

-Weekly Reporter

DIGEST.

Rule refused.*

DIGEST OF ENGLISH LAW REPORTS.

FOR THE MONTHS OF JULY, AUGUST, SEPTEMBER, AND OCTOBER, 1866.

(Continued from page 138.)

HUSBAND AND WIFE.

In an action for necessaries supplied to the defendant's wife while living apart, it is no defence that the wife has been found guilty of adultery in the divorce court, if the defendant also has been found guilty of adultery, and therefore no divorce has been decreed.-Needham v. Bremner, Law Rep. 1 C. P. 582.

See EXECUTOR, 1, 2; GUARDIAN; POWER, 3;
SEPARATE ESTATE, 1; WILL, 4, 18.

IMPLIED TRUST.-See TRUST.

INCOME.-See PARTNERSHIP, 2.
INDICTMENT.-See LARCENY.

INFANT.-See GUARDIAN; WILL, 13.

INJUNCTION.

The owner of land agreed to demise to A. the minerals under it to the west of a certain "fault,"

* Since the above was in type we have received the last number of the Law Reports, 2 Ex. 228, where a fuller report of the argument is given, to which the reader is referred.EDS. L. J.

supposed to run through the land in the direction indicated on a plan, the land being described as supposed to be eighty-three acres or thereabouts. The owner made a like agreement with B. as to the minerals under the land to the east of the fault, supposed to contain ninetyeight acres or thereabouts. The fault was afterwards found to run so as to leave on the west eight acres only. Held, on a bill by B. to restrain A. from working to the east of the fault, that as the court would not, in a suit by B. for specific performance against the owner, have decreed a demise of all the minerals to the east of the fault, he could not be deemed in constructive possession so as to maintain his suit against A.-Davis v. Shepherd, Law Rep.

1 Ch. 410.

See CARRIER, 2; LEASE, 2; LIGHT; NUISANCE; PATENT, 1; TRUST.

INSURANCE.

1. The defendant assigned machinery to secure advances by the plaintiff. The deed contained a covenant to insure, but no provision for the application of the policy moneys, in case of fire, in liquidation of the debt. The machinery was burnt, and the defendants became bankrupts. Held, that the plaintiff had no claim to the benefit of the policy as against the defendants.-Lees v. Whiteley, Law Rep. 2 Eq. 143.

2. Under an insurance policy on goods from L. to M., "including all risk to and from the ship," the policy to endure till the goods should be safely landed at M., there is no implied warranty of seaworthiness of lighters, not belonging to the ship, and used for landing the goods at M.-Lane v. Nixon, Law Rep. 1 C. P. 412.

3. A ship was chartered for a voyage, at a freight payable on arrival at the port of discharge. The owners insured the freight by a policy containing the usual suing and laboring clause, and also the following clause, warranted free from particular average, also from jettison, unless the ship be stranded, sunk or burnt." In the course of the voyage, the vessel put into a port of distress, so damaged by perils of the sea as to be not worth repairing, and she was sold. The cargo having been landed and warehoused, the master procered another vessel, the Caprice, to carry it on for an agreed freight, which the owners paid, receiving from the owners of the cargo the full charter-freight. Held, (1) that the owners could recover from the insurers, under the suing and laboring clause, the freight of the Caprice, and the expenses of conveying the cargo to her from the warehouses, although

there had been no abandonment; and (2) that the application of the suing and labouring clause was not excluded by the warranty against particular average. Semble, that evidence would be admissible to prove that by the usage among underwriters, the term "particular average" does not include expenses necessarily incurred in order to save the subjectmatter of insurance from a loss for which the insurers would have been liable.-Kidston v. Empire Insurance Co., Law Rep. 1 C. P. 535.

4. A ship under insurance was submerged; there was a common peril of destruction imminent over ship and cargo as they lay submerged; the most convenient mode of raising either or both was by raising them together; the cargo would be liable to a general average contribution for the cost of the raising, and the shipowner would have a lien on the cargo to secure payment of that general average. Held, that the cost of raising the ship must be reduced by the amount of the general average contributed by the cargo, in determining whether the ship was a constructive total loss.-Kemp v. Halliday, Law Rep. 1 Q. B. 520.

See PRINCIPAL AND AGENT, 1. INTEREST.-See PARTNERSHIP, 2; VENDOR AND PURCHASER, 6.

INTERPLEADER.

A. sued the defendants, to whom he had intrusted a policy for certain purposes and declared in trover, in detinue, and specially on the contract. B., who had pledged the policy with A., then sued the same defendants to recover the policy. Held, that an interpleader order, under 23 & 24 Vict. c. 126, § 12, direct ing proceedings in the first action to be stayed till further order, and also directing that A should be at liberty to defend the second action indemnifying the defendants, and that B. should give the defendants security for costs, was rightly made.-Tanner v. European Bank, Law Rep. 1 Ex. 261.

INTERROGATORIES.

1. Interrogatories will be allowed to be administered to a defendant, if they are put bond fide, though they may tend to criminate.Bickford v. Darcy, Law Rep. 1 Ex. 354.

2. In an action of slander, it appeared from affidavits, that the defendant had made imputations against the plaintiff, to the effect that he had committed forgery, but that persons in whose presence they were made refused to give the plaintiff any further particulars: interrogatories were allowed to be put to the defendant as to the precise words used.—Atkinson v. Fosbroke, Law Rep. 1 Q. B. 628.

3. In a suit relating to real and personal estate, in which, after interrogatories filed, but before answer, the sole plaintiff had died, the court, on the application of the heir and executor of the plaintiff, made an order to revive; and as the time for answering had expired, ordered the defendant to answer the interrogatories within twenty-eight days.—Earl Beauchamp v. Winn, Law Rep. 2 Eq. 302.

See COMMISSION TO EXAMINE WITNESSES. JURISDICTION.

1. In 19 & 20 Vic. c. 108, sec. 24, giving the county court jurisdiction of an action in which the debt consists of a balance not exceeding £50, after an admitted set-off, "an admitted set-off" means one admitted before action Walesby v. Goulston, Law Rep. 1

brought.

C. P. 567.

2. On the hearing of an information for re moving cattle without a license, the justices have no jurisdiction to inquire into the sufficiency of the evidence on which the license was granted.-Stanhope v. Thorsby, Law Rep. 1 C.P.

423.

LANDLORD AND TENANT.-See LEASE.

LARCENY.

The prisoner was sent by his fellow-workmen to their common employer for the wages due them all. He received the money in one sum, wrapped in paper, with the names of the men and the sum due each written inside. Held, that he received the money as the men's agent, and not as the employer's servant; and that, in an indictment against him for larceny, the money was wrongfully described as property of the employer. —The Queen v. Barnes, Law Rep. 1 C. C. R. 45.

LEASE.

1. In an action for breach of a covenant for quiet enjoyment in a lease, void for want of authority in the lessor to demise, the lessee can recover as damages the amount of premium paid for the lease, and also the difference between the value of the term professed to have been granted to him by the lease, and that of a shorter term which he obtained from the true owner of the premises. - Lock v. Furze, Law Rep. 1 C. P. 441.

2. A. sold an estate to B., who covenanted that no building to be erected thereon should be used as a beer-shop. B. erected a building thereon, and sold the estate to C., who sold to D., who let the premises to E., as tenant from year to year, without express notice of the covenant: it did not appear whether the deeds to C. and D. disclosed the covenant. Held, that the rule, that a purchaser, who does not inquire

into his vendor's title, is affected with notice of what appears on it, applies to a tenant from year to year, and that E. should be enjoined from using the premises as a beer-shop. Semble, that, if D. had told E. that there was no restriction on the premises, the covenant could not have been enforced in equity against E.Wilson v. Hart, Law Rep. 1 Ch. 463.

See INJUNCTION; POWER, 1. LEGACY.-See POWER, 2; VESTED INTEREST, 2, 3; WILL.

LEGATEE.-See WILL.

LEGITIMACY.-See DESCENT, 1; LEGACY, 9.

LIBEL.

Proceedings held in gaol before a registrar, in bankruptcy, on the examination of a debtor in custody, are judicial, and in a public court; and a fair report of them is protected, though they reflect on a third person.-Ryalls v. Leader, Law Rep. 1 Ex. 296.

See INTERROGATORIES, 2. LICENSE. See JURISDICTION, 2. LIGHT.

1. A bill for an injunction to restrain the erection of a building as obstructing the plaintiff's light will be dismissed, unless the plaintiff shows that he will sustain material damage; but it will be dismissed without prejudice to an action at law.-Robson v. Whittingham, Law Rep. 1 Ch. 442.

2. An injunction will be granted to restrain obstructions of light and air, in town or country, where there is such interference with comfort, and carrying on business, that substantial damages would be given at law and it is no defence that as much light remains as other persons find sufficient for the same purposes, or that the plaintiffs might make larger win dows, or that they have put up Venetian blinds, or that their premises are not good for the purpose for which they are used, or that the defendant offers to use glazed tiles; and, in de ciding whether sufficient damage is proved to sustain an injunction, the court is not bound by the finding of an appeal court on like facts as it would be bound by a decision on a point of law.-Dent v. Auction Mart Co., Law Rep. 2 Eq. 238.

3. If half of the sky area, which has been previously open to a certain window of a town house, used by the plaintiff as a shop, is shut out by the defendant's new building, and the plaintiff is obliged, in consequence, to remove his workmen to another part of the house, he is entitled to relief; and, if a mandatory injunction is not prayed, an inquiry will be directed

as to the amount of damage.-Martin v. Headon, Law Rep. 2 Eq. 425. LIMITATIONS, STATUTE OF.

A letter by a debtor to his creditor, written before the debt was barred by the Statute of Limitations, and saying, "I will try to pay you a little at a time, if you will let me. I am sure that I am anxious to get out of your debt. I will endeavour to send you a little next week," held (by BRAMWELL and CHANNELL, B.B., MARTIN, B., dissenting), a sufficient acknowledgment within 9 Géo. IV. c. 14, sec. 1, to take the case out of the statute.-Lee v. Wilmot, Law Rep. 1 Ex. 364.

See ADMINISTRATION, 2; CONTRIBUTORY, 4;
WILL, 12.

MARRIAGE.-See DESCENT; LEGACY, 9.
MARRIED WOMAN.-See HUSBAND AND WIFE; SEPA
RATE ESTATE.

A. hired Indians, the heads of gangs of laborers, to clear his lands of brush-wood, at a job price to be paid their gangs. Through the negligence of the persons employed, sparks a fire on A.'s land set fire to a neighboring house of B. A. interfered with the work, and directed the Indians where to work. Held, that A. was a "Commettant," and the laborers" Préposés," within the meaning of the Code Civil of Mauritius; and that A. was liable to B. for the damage caused.—Sérandat v. Säisse, Law Rep. 1 P. C. 152.

See CORPORATION, 3; EMBEZZLEMENT; NEGLI-
GENCE, 4.

MINES. See COMPANY, 4; INJUNCTION; POWER, 1;
WATERCOURSE, 1.

2. If, in an action on a bill of lading for loss of goods, a replication has alleged that the collision by which the goods were lost occurred through the "gross negligence" of the defen dants, it is not a misdirection to leave it to the jury to say whether the defendants exercised "due care and skill."-Grill v. General Iron Screw Collier Co., Law Rep. 1 C. P. 600.

3. A sheriff is liable to an execution debtor for his officer's negligence in not properly lotting at a sale the goods seized under a fi. fa., though the debtor has persuaded the officer not to advertise the sale, has induced him to postpone the sale to a later hour, and has directed him to sell also for a writ lodged with him on that day, under which he could not otherwise have them sold.-Wright v. Child, Law Rep. 1 Ex. 358.

4. The plaintiff having suffered injury from the negligence of persons in charge of a ship laid up in a public dock, under the care of a ship-keeper, sued the defendant. At the trial it did not appear by whom the ship-keeper was appointed. Held (MELLOR, J., dissenting), that the jury might, in the absence of other evidence, infer from the ship's register, on which the defendant's name appeared as owner, that the persons in charge of the ship were employed by the defendant.-Hibbs v. Ross, Law Rep. 1 Q. B. 534.

See CORPORATION, 3; DAMAGES, 2. NUISANCE.

A highway board will be enjoined from allowing any fresh communications to be made with a sewer constructed by their predecessors, which occasions a nuisance to the inhabitants of an adjoining parish, though, from the limited nature of the powers of the board, no order can be made against them which will compel them to close the sewer altogether.-AttorneyGeneral v. Richmond, Law Rep. 2 Eq. 306. PAROL EVIDENCE.-See WILL, 1.

PARTNERSHIP.

1. C. agreed with R. that R. should buy and sell goods on C.'s behalf, the business to be carried on as R. & Co., and R. to receive a salary, and a percentage on profits. R. managed the business, but C. had bought goods for it. Each become bankrupt. Held, that the book debts and stock in trade of R. & Co. were joint estate. In re Rowland, Law Rep. 1 Ch. 421.

2. Partnership articles between A. and B. provided that they should carry on business "for the mutual and common benefit of the partners, and risk of profit and loss in equal shares." A.'s capital to be £750, B.'s £1,500; the capital of each to carry interest at £5 per

cent., to be allowed yearly, before making up accounts. Sums brought in by either, above those amounts, to bear interest at the same rate, payable before any other interest, and to be withdrawable at three months' notice. The partners were to be at liberty to draw certain sums on account of their shares of profits; the remainder of each partner's share of profits to be added to his capital, and bear interest at £5 per cent., to be paid before division of net profits. On dissolution, after payment of debts, "the remaining capital, stock, moneys and credits belonging to the partnership, shall be divided, or received, or taken by the partners according to their respective shares or interests therein." On dissolution, the capital standing to A.'s credit was not much increased; that of B. greatly so, partly by accumulation of profits, and partly by cash brought in by him. After paying debts, the assets were insufficient to replace the capitals in full. Held, that B. should be repaid with interest the additional capital brought in by him in cash, and the residue should be divided between the partners in proportion to their capital.- Wood v. Scholes, Law Rep. 1 Ch. 369.

PATENT.

1. The defendant, in a suit to restrain the infringement of a patent, may dispute its validity, though the plaintiff has obtained a judgment against another person establishing its validity; but, till he has proved its invalidity, he will be restrained from infringing it.-Bovill v. Goodier (2), Law Rep. 2 Eq. 195.

2. The plaintiff, in a suit to restrain an infringement of a patent, contested on the ground of anticipation by prior user, is not entitled to discovery in answer to a general interrogatory as to the instances of prior user on which he relies.-Bovill v. Smith, Law Rep. 2 Eq. 459.

3. On the trial of issues in a patent case, the plaintiff may call evidence in reply to rebut a case of prior user set up by the defendant. But, after the defendant's evidence has been summed up, the defendant cannot adduce further evidence in answer to that given by the plaintiff in reply.-Penn v. Jack, Law Rep. 2 Eq. 314.

4. An objection to the validity of a patent, on the ground that a foreign patent for the same invention has expired, cannot be taken at the hearing of a suit to restrain infringement, unless raised by the answer.-Bovill v. Goodier (2), Law Rep. 2 Eq. 195. PLEADING.

1. A plea to the further maintenance of an action needs no formal commencement, if it dis

close on its face matter which arose since the commencement of the action.-Brooks v Jennings, Law Rep. 1 C. P. 476.

2. To a declaration for false representation, whereby the plaintiff was induced to pay £2,000 and "sustained loss, and was adjudicated bankrupt, and suffered personal annoyance, and was put to trouble and injured in character and credit," the defendant, except as to the claim in respect of the adjudication in bankruptcy, and the remainder of the personal damage alleged, pleaded that, before action, the plaintiff had been adjudicated bankrupt, that the loss sustained was pecuniary, and that the right to sue for it passed to the assignees. Held, that the plea was a good answer to the whole declaration, and might so have been pleaded.-Hodgson v. Sidney, Law Rep. 1 Ex. 313.

See BILLS AND NOTES, 2.

POWER.

1. Under a conveyance to trustees of land, together with the mines thereunder (the land containing both opened and unopened mines), and a power to grant leases for fourteen years without mentioning mines, none of the leases to be made dispunishable of waste, the trustees have no power to grant leases of unopened mines. Clegg v. Rowland, Law Rep. 2 Eq.

160.

2. A. gave personal estate to trustees, on on trust for L. for life, and, on her death, for the benefit of the heirs of the body of L., to educate the said heirs, and to pay to the said heirs said estate at their respective ages of twenty-one, in such proportions as L. might by deed or will appoint. Held, that the objects of the power were such of the statutory next of kin of L. as were descended from her.

L. by will appointed £100 to a stranger to the power, and the balance of the fund (after payment of legacies to objects of the power), amounting to £260, to pay her debts; and "should any surplus remain," she gave it to E., an object of the power. Held, that the £100 was unappointed, and did not pass to E., but that the £260 went to E., free from the charge of debts, which was invalid.-Jeaffreson's Trusts, Law Rep. 2 Eq. 276.

3. When the court of probate is satisfied that a bona fide question, whether a married woman's will is an execution of a power, is intended to be raised, it will grant limited probate of such a will, to enable the question to be determined in chancery.-Paglar v. Tongue, Law Rep. 1 P. & D. 158.

Sce SEPARATE ESTATE, 1; TRUST; WILL, 18.

PRACTICE (AT Law).

1. The venue of an information filed by the attorney-general to the Prince of Wales, to recover dues payable in Devon to the Prince as Duke of Cornwall, was laid in Middlesex. It appeared that all the witnesses to facts resided in Devon; but that, as the defendant disputed the Prince's right to the dues, the records of the Duchy in London would have to be produced at the trial; on these facts, and on the ground that the Crown could allege an interest and claim a trial at bar, an application by the defendant to change the venue to Devon was refused.-Attorney-General to the Prince of Wales v. Crossman, Law Rep. 1 Ex. 381.

2. If a defendant has a day's time to plead after an event, and the event happens on Friday, he can plead at any time before the opening of the judgment office on Monday; the rule ordering that service of pleadings, made after 2 P.M. on Saturday, shall be deemed made on Monday, not being intended to affect the rights of parties, but only to relieve the clerks.—Connelly v. Bremner, Law Rep. 1 C. P. 557.

3. The court will not, on the motion of the defendant, interfere with the discretion of a judge at chambers, who, on a summons to set aside an execution for irregularity, with costs has made the order as prayed, on condition that the defendant bring no action.-Bartlett v. Stinson, Law Rep. 1 C. P. 483.

See APPEAL; AWARD; INTERPLEADER; IN

TERROGATORIES.

PRACTICE IN EQUITY.-See EQUITY PRACTICE.
PRESCRIPTION.--See WATERCOURSE, 1.
PRINCIPAL AND Agent.

1. The defendant authorized an insurance broker at L. to underwrite policies in his name, not exceeding £100 on any one risk. The broker, without defendant's knowledge, underwrote a policy for the plaintiff for £150. The plaintiff did not know the limitation on the broker's authority; but it is notorious in L. that there is, in nearly all cases, a limit of some sort imposed on brokers which is not disclosed to third persons. In an action on the policy, held, that the defendant was not liable even to the extent of £100.—Baines v. Ewing, Law Rep. 1 Ex. 320.

2. A trader doing business as M. & Co. ordered goods of the plaintiff, and before their delivery executed a composition deed, of which the defendants were inspectors. The plaintiff afterwards wrote to the debtor, informing him that the goods were ready for delivery; and the defendants replied, requesting him to send the goods, and signing for M. & Co. The goods were sent, but not paid for. The deed allowed