926 NOTICE OF ACTION. MERCHANT SEAMEN'S ACT. The Merchant Seamen's Act, 7 & 8 Vict. c. 112, is an Act relating to trade or navigation, and therefore all penalties recovered under it are payable to the Merchant Seamen's Society, as being within the proviso of the 5 & 6 Will. 4, c. 176, which disentitles certain boroughs to penalties recovered under any Act "relating to the Customs, Excise, and Post-office, or to trade or navigation." The Seamen's Hospital Society v. The Mayor, Alderman, and Burgesses of the Borough of Liverpool, MINE. Transfer of Share in. See STAMP, (5). MINUTES. 180 Of Board of Directors. See PROVISIONAL COMMITTEE-MAN. MONEY HAD AND RECEIVED. See BANKRUPT, (3). NEGLIGENCE. By Contractor's Workmen. See MASTER AND SERVANT. NOTICE OF ACTION. Verbal, when sufficient. In an action for the breach of an agreement, by which the defendant undertook to produce one A. B., "if he received seven days' notice, requiring the appearance of the said A. B., at a place to be in the said notice named:"-Held, that a verbal notice satisfied the agreement, and therefore, that the declaration was good, although it did not state that a written notice had been given. Thompson v. Ayling, 614 PALACE COURT ACT. "OWNER OF GOODS." Meaning of Term in Charter. See PORT DUties. Owner and Proprietor. A declaration stated, that a certain messuage was in the occupation of S., as tenant to the plaintiff, the reversion thereof belonging to the plaintiff; that the defendant was the owner and proprietor of another messuage adjoining, and by reason thereof, as such owner and proprietor, ought to have repaired and kept repaired in a substantial manner the messuage secondly mentioned. Breach, non-repair. Plea, that the messuages were contiguous and abutting on each other, and were divided by a party wall, whereof the plaintiff was seised of an undivided moiety; that the wall was in a ruinous state, and, being parcel of the messuage in the declaration secondly mentioned, had fallen on the first-mentioned messuage. Replication, that the wall was not a party wall, nor was it a wall whereof and wherein the plaintiff was seised:Held, on special demurrer, first, that the replication was good; secondly, that the declaration was bad, inasmuch as there is no obligation towards a neighbour, cast by law on the owner of a house merely as such, to keep it repaired in a substantial manner, his only duty being to prevent it from being a nuisance. Also, that the term "owner," as well as "proprietor," might mean, that the defendant had the whole legal interest in the premises, so that no one also had any estate in possession or reversion, or that he had the subsisting legal interest at the time of the wrong complained of, or that he was the owner of the whole or some interest as distinguishable from that of the tenant in possession. Chauntler v. Robinson, 163 PALACE COURT ACT. PARTIES TO ACTION. PARTICULARS OF DEMAND. PARTIES TO ACTION. In Action under Deed. By an indenture between A. B., C. D., and others, subscribers to a certain projected Company of the first part, E. F. and G. H. of the second part, and C. D. and others of the third part, (being also some of the parties of the first part), after reciting that the parties of the third part had acted as managing ditectors, that the parties of the first part had become respectively subscribers, and had paid their respective deposits into the hands of certain bankers of the Company, appointed by the parties of the third part, the receipt of which the said bankers did thereby acknowledge; it was witnessed, that, for the more complete formation of the Company, "the parties hereto of the first part do hereby mutually agree with each other and every of the persons, companies, and corporations who have subscribed, or should become subscribers, &c., and each of them doth hereby for himself and herself, his and her heirs, executors, and administrators, and so far as the parties hereto of the first part consist of companies, &c., for itself and its successors, and as to and concerning only the acts, deeds, and defaults of himself, herself, and itself respectively, and his, her, and its respective heirs, executors, administrators, and successors, covenant with the said E. F. and G. H., their executors and administrators, in the manner expressed in the several clauses hereinafter expressed." The deed then set out the several clauses. The 1st clause was to the effect, that the parties of the third part should be managing directors. The 7th and 8th clauses were, that the managing directors should have absolute discretion to do what was necessary to obtain an Act of Par PAVING RATES. 927 liament, and that they should have absolute discretion, subject to certain provisoes, over the funds until such Act should be obtained. The 9th clause was, that the managing directors for the time being should have power, before such Act should be obtained, to dissolve the Company, and that, upon such dissolution, the several deposits of the persons of the first part respectively should be paid to them respectively without any deduction whatever. The 10th clause stated, "that if within three years of the date or the deed no Act should be obtained, then that the said deed shall be null and void to all intents, &c., and thereupon the deposits so paid by the parties of the first part shall be returned to them respectively, without any deduction." In an action of covenant upon the preceding deed, brought after the termination of the three years, no Act having been obtained, by the plaintiffs, viz. A. B. of the first part, and E. F. and G. H., trustees, of the second part, against C. D. of the third part:-Held, that, assuming the plaintiffs were the proper parties to sue (which, semble, they were not), the action, was not maintainable, inasmuch as there was no covenant by the parties of the third part as managing directors, but merely as subscribers; or, assuming that there was a covenant amounting to a stipulation that the directors would return the deposits, each director was only bound for his individual act, and to concur in ordering a return of the deposits on applicacation made to the body of directors. Higginbottom v. Burge, 667 PARTNERSHIP. Guarantee in Name of See GUARANTIE. PAVING RATES. See PROHIBITION. PENALTY. See MERCHANT SEAMEN'S ACT. SHERIFF, (2). PENSION. See COMMISSIONER. PEREMPTORY UNDERTAKING. (1). How satisfied. An affidavit in support of a rule to enlarge a peremptory undertaking stated, that the record was withdrawn by the deponent, owing to the absence of a material witness, who was unable to attend from illness; the affidavit described the deponent as a solicitor, but did not state that he had the management of the cause, or was particularly acquainted with it; and it did not state that the witness was likely to be present at the next Assizes:-Held, that affidavit was nevertheless sufficient. The Eastern Union Railway Company v. Symonds, 502 (2). Postponement of Trial by Judge: Where the plaintiff is under a peremptory undertaking to try at a particular sittings, and, when the cause comes on to be tried, applies to the Judge and obtains leave to postpone it, and it is thereupon postponed, the defendant is not entitled to make absolute the rule for judgment as in case of a nonsuit. Jackson v. Carrington. 41 PLEADING. Misjoinder of Counts. A count which states that the defendant, as executor, was indebted to the plaintiff for interest, for the forbearance at interest by the plaintiff to the defendant, as such as executor as (1). In Scire Facias against Public Officer of Banking Company. A declaration in scire facias stated, that, by the judgment of the Court, the plaintiff recovered against B., one of the public officers of certain persons united in copartnership "for the purpose of carrying on" the business of bankers in England, according to the 7 Geo. 4, c. 46, a debt of 3000l., whereof B., as such public officer, was convicted, as by inspecting the rolls of our Exchequer appears. Plea, that S. was a member of the copartnership, and that the defendants were the executors of S., and as such entitled to the share of S., and members of the copartnership by reason of their share and interest as executors and not otherwise, and that they had fully administered the goods of S. :-Held, on special demurrer, first, that the plea was bad, as amounting to an argumentative denial that the defendants were members. Secondly, that, on general demurrer, the declaration was good, although it did not allege that the copartnership were actually carrying on the business of bankers. Ness v. Bertram, (2). In Action for Calls. 195 In an action by a Railway Company against a shareholder for calls, the declaration stated, that the defendant, before the commencement of the suit, was and from thence hitherto hath been, the holder of divers shares, to wit, &c., and then at the time of the commencement of the suit, was and still is indebted to the said Company in respect of divers shares, to wit, &c., in respect of three calls, whereby an action had accrued to the said Company by virtue of the 8 & 9 Vict. c. 16, and also by virtue of another Act (naming it), and of the (setting out the title of another special Act):-Held good on special demurrer, for that, if the declaration were objectionable, the superfluous words might be rejected. The Midland Great Western Railway of Ireland v. Evans, 649 (3). Christian Name-Omission of. In an action upon a policy of insurance, the declaration stated, that "the plaintiffs, by certain persons using and carrying on business, and in the said policy of insurance designated and described by the names, style, and firm of Dewar & Cullinford, the agents of the plaintiffs in that behalf" caused to be made with the defendants a certain policy of insurance, &c.-Held bad on special demurrer, on the ground that the declaration omitted to state the christian names of the plaintiffs' agents, or to allege any excuse for such omission. Sturge v. Rahn, 646 (4). Breaches in Declaration, when Insufficient-Surplusage. A declaration stated an agreement whereby the defendant agreed to employ the plaintiff as a journeyman baker, for four years, and to pay him certain weekly wages, and also certain additional sums in the three last years of the term. Breaches, that the defendant, before the expiration of the term, wrongfully discharged the plaintiff from his employ: that the defend ant did not pay the plaintiff the weekly wages for the remainder of the term: that the defendant did not pay the plaintiff the additional sums which he would have been entitled to if he had continued in the employ of the defendant. General demurrer to the two last last breaches, and joinder therein :-Held, that the proper course was to have applied to a Judge to strike out those breaches, and that, upon this record, they could not be treated as surplusage. Lush v. Russell, 637 (5). Arrest of Judgment. See JOINT-STOCK COMPANY, (2). II. PLEA. Argumentative Plea to Scire Facias against Public Officer of Banking Company, that Defendants not Part ners. See PLEADING, I., (1). Nunquam Indebitatus in Action for Calls-Its Effect. See RAILWAY COMPANY, (2). Nul Tiel Agard-Plea amounting to. See AWARD, (2). Immaterial Traverse. (1). A Plea in Bar of Matter properly pleadable Puis darrein Continuance is good after Verdict See TRESPASS, (3). In an action for wrongfully discharging the plaintiff from the defendant's employ, the declaration alleged that the plaintiff had always been ready and willing and offered to remain in the employment of the defendant. Plea, that the plaintiff did not offer to remain in the employment of the defendant:-Held bad, as To an action upon a bill of exchange by the indorsee against the acceptor, the defendant, being under terms of pleading issuably, pleaded that the bill was drawn by one M., at the request and for the accommodation of the defendant, and without any consideration or value whatever; and that the bill was indorsed by the said M. without any consideration or value given by the plaintiff for such indorsement to the defendant or the said M., or to any other person whomsoever:-Held, that the plaintiff was entitled to sign judgment.. Hunter v. Wilson, 489 III. REPLICATION. De Injuria-when good. See INSURANCE. New Assignment-Right of Way. To a declaration in case, for obstructing the plaintiff's right to get clay in a certain close, by the building of a certain wall and fence by the defendant, the defendant pleaded, as to so much as related to the erection of the wall and fence, and thereby causing the said obstruction, that the soil upon which the wall was erected was the soil and freehold of the defendant; that the wall and fence were erected upon the edge and boundary of the said land; and that clay, in and under the land whereon the wall and fence were erected, was worked out and exhausted. The plaintiff replied by traversing that the clay was worked out and exhausted, modo et formâ; and he also new assigned that the piece of land in which the plaintiff had such right abutted on, &c., (describing the abuttals on three sides); and that it abutted on the east side on the plaintiff's close; and that the wall and fence were erected on the edge and boundary to the east side, and upon and along the whole of the east side; and that his right was obstructed in other parts than where the wall and fence were erected:-Held, that the plea was bad non obstante veredicto; and, on special demurrer to the new assignment, for not alleging a right of way in the plaintiff over that part of defendant's close on which the wall and fence were erected, that the new assignment was good. Withers, To Plea of Set-off. See SET-OFF. Grove v. POLICY OF INSURANCE. See INSURANCE. PORT DUTIES. Newcastle-upon-Tyne. 875 A charter of James 2 granted to the master pilots and seamen of Newcastle-upon-Tyne certain dues, to be paid "by all persons being owners of any goods which should be brought in any ship from beyond the seas into the river Tyne," in manner following, "that is to say, aliens and strangers born, and other such persons who, with their ships, should arrive within the said port, and not belong to the same, before they depart with their said ships from the said port, should pay the duties aforesaid, and every free merchant and other inhabitant of Newcastle, arriving with their said ships within the river Tyne, should pay the duties aforesaid within ten days after the |