PROTHONOTARY.
Practice on reference to―(Continued.)
to him to be re-heard, on the gronnd that an absent witness has since been discovered. Edgington v. Nixon, 509.
2. Upon a reference to the prothonotary to inquire into the circum- stances attending the settlement of an action, the prothonotary re- ported that the settlement was fraudulent as against the plaintiff, stating some of the facts that led him to that conclusion. On motion to confirm the report:-Held that it was not competent to the counsel on the other side to impeach the facts found by the prothonotary, though they were at liberty to dispute his deductions therefrom. Corry v. Wharton, 664.
3. Semble that such a report should be in writing. Id.
To Arbitration-see ARBITRATION.
To the Prothonotary-see PROTHONOTARY.
REGULÆ GENERALES.
Hilary, 3 Geo. 2.
Easter, 51 Geo. 3.
Hilary, 2 Will. 4, r. II.
Fleet prison-Rule for regulation of, 500. Practice-Notice of trial, 231.
Practice Indorsement on process of debt and costs, 197, 205.
Hilary, 4 Will. 2, r. 33. Practice-Time for moving for irregularity,
A repleader cannot be awarded in a court of error. Per Bolland, B., in Gwynne v. Burnell, 44.
REPLEVIN see ANNUITY, 1—Sheriff, 1.
1. A right of way claimed by the plaintiff, by reason of his possession of a close, from the said close unto and along a stream or watercourse into a navigable river, for himself and his servants to pass and repass in boats &c., is not supported by evidence of an user of the way by the occupier of an inn and yard held as one entire subject, from which yard the plain- tiff's close had recently been severed. Bower v. Hill, 535.
RIGHT OF WAY-(Continued.)
2. Quære, whether such a claim, even by the occupier of the entire pre- mises, would be sustained by proof that goods were brought to the inn along the watercourse in boats not belonging to the occupier, or navigated by his servants properly so called? Id.
Obstruction of-see CASE, 3.
RIGHT, WRIT OF -see WRIT OF RIGHT.
Transfer, where Complete.
1. Le C., a trader in Guernsey purchased goods of the plain- tiffs, directing them to be forwarded to him at Guernsey. The goods were accordingly sent by waggon to Southampton-ad- dressed "J. Le C., Guernsey, care of W. S. Le F. (the defen- dant), Southampton." The goods arrived at Southampton on the 10th May, and were taken from the waggon-office by the defendant, who was the general shipping agent of Le C. at that port, and who paid the carriage, and shipped them for Guern- sey on the 14th. On the 15th, a letter from Le C. to the de- fendant (written at the plaintiffs' request) was received by the clerk of the defendant at Southampton, requesting the defen- dant to delay the shipment of the goods; and on the same day one of the plaintiffs arrived there for the purpose of stopping the goods-the vendee being insolvent and in prison. Arrived at Southampton, the plaintiff went with the defendant's clerk on board the vessel in which the goods were, and caused them to be re-landed and conveyed to the defendant's warehouse; the defendant's clerk giving the plaintiff a letter wherein he en- gaged on the defendant's behalf to hold the goods subject to the order of the owners:-Held, that the transitus of the goods was not ended on their arrival at Southampton and being taken possession of by the defendant, so as to entitle him to treat them as the property of the vendee, and hold them in assertion of a right of lien for the general balance due to him for business done for the vendee. Slater v. Le Feuvre, 146.
2. The plaintiff, having purchased certain timber growing on the land of B., felled it, and afterwards sold it to one J. at a certain price per cubic foot, J. to be at liberty to convert the timber on the land. The trees were marked and measured by J., the number of cubic feet in each tree being ascertained, but the total contents were not summed up. Some of the trees were taken away by the purchaser:-Held, that the transfer of the whole was complete, and consequently that the vendor had no right of lien for the unpaid price of the timber. Tansley v. Turner, 238.
An irregularity in the proceedings upon the ca. sa. against a principal, may be taken advantage of by the bail on motion, and need not be pleaded to the sci. fa. Goldney v. Laporte, 670.
To a count in debt by the assignees of a bankrupt for money had and received by the defendant to the use of the plaintiffs as assignees (not stating whether received before or since the bankruptcy), the defendant pleaded a set-off for money due to him on an account stated with the bankrupt before his bankruptcy:-Held, that the plea was bad, for that it did not shew that the debts were mutual. Groom v. Mealey, 171.
SHERIFF.
Duties and Liabilities.
1. In an action on the case against the sheriff for taking insuffici- ent pledges in replevin, the proper measure of damages is, the penalty of the bond, viz. double the value of the goods distrained. Hall v. Goodricke, 363.
And see EVIDENCE, 2-TROVER, 1.
Fees payable by the Party on Arrest.
2. The only fee allowed by law to be taken by the officer from a party arrested, is 4d., the fee prescribed by the statute 23 Hen. 6, c. 9: if he take more, he is liable to be sued for the penalty imposed for extortion by the 32 Geo. 2, c. 28. Innes v. Levi, 189.
Motions under the Interpleader Act-see Costs, 7—Practice, 14, 15. Practice on Trials before-see PRACTICE, 19.
SHIP AND SHIPPING.
Liability of Part-owners for Insurance.
1. One of several part-owners of a ship, without any express autho- rity from the others, effected a joint insurance upon the entire ship, charging the premium and commission in the ship's accounts, which were open to the inspection of and were actually inspected by the other owners, and not objected to:-Held, that the jury were war- ranted in finding that the managing owner had a joint authority to effect an insurance for the whole; and that, consequently, all the owners were liable to the broker, notwithstanding the credit was in the first instance given to the managing owner alone-it appearing that the broker was ignorant of the names of the other owners. Robinson v. Gleadow, 250.
2. The plaintiff entered into a charterparty with the defendants, by which it was agreed that the ship Jane should receive on board a cargo and proceed therewith to Buenos Ayres and there deliver the same, and reload a cargo and proceed therewith to a port between Gibraltar and Antwerp; freight for the voyage out and home 13007. in full, if delivered at Gibraltar, a port in Spain, London, or Liver- pool, and 5. per cent. additional if delivered at a port in France or at Antwerp: the freight to be paid, 2001. in cash on the vessel being dispatched from Portsmouth, cash for the necessary expenses of the vessel in the river Plata to be advanced there, and the remainder in cash on the final delivery of the homeward cargo. The vessel pro- ceeded to Buenos Ayres, and there took on board a quantity of hides under a bill of lading by which they were to be delivered at Gibral- tar to E. & Co., they paying freight for the same at the rate of 41, 10s. per ton. The 2001. were paid on the vessel leaving Portsmouth, and 667. 3s. 11d. were advanced by the freighters to the master at Buenos Ayres. The Jane sailed for Gibraltar, and put into Fayal in dis- tress. The cargo was there landed, and the ship condemned as unseaworthy, and sold. About one third of the hides, being da- maged, were there also sold. The master sailed to England with the proceeds of the hides so sold, leaving instructions with the Brit- ish vice-consul to forward the remainder to Gibraltar by the earliest opportunity. After the departure of the master, the vice-consul entered into a charterparty, on behalf of the owners of the hides, for their conveyance to Gibraltar by the Flora for a freight of 360l., with 57. per cent. primage. The hides shipped on board the Flora under this charterparty were duly delivered to E. & Co. at Gibraltar, and they paid the freight and primage according to the bill of lading:-Held-first, that the plaintiff was not entitled to recover the full freight agreed to be paid by the charterparty; the voyage thereby prescribed never having been performed-Secondly, that he was not entitled to freight pro ratâ itineris for the outward voyage from Portsmouth to Buenos Ayres, or for the voyage from Fayal to Gibraltar-Thirdly, that he was entitled to freight pro ratâ for the conveyance from Buenos Ayres to Fayal of that portion of the cargo which came to the freighters' hands, and was accepted by them, his claim resting upon an implied contract to remunerate him for service performed, not according to the agreement, but a service from which the freighters had received a benefit. Mitchell v, Darthez, 771.
1. In an action for slander, imputing to the plaintiff that he, whilst church- warden, stole the parish bell-ropes:-Held, that, inasmuch as an indict- ment for larceny could not be supported against a churchwarden for steal- ing the bell-ropes of the parish of which he is churchwarden, he having
as such the possession of the goods of the church, the action was not main- tainable. Jackson v. Adams, 599.
2. But, as the second count of the declaration did not import on the face of it that the plaintiff stole the bell-ropes of the church whereof he was warden, but generally that he stole bell-ropes-The court refused to arrest the judgment. Id.
3. The second count contained an averment by way of innuendo, "that the plaintiff, whilst in his said office of churchwarden, had been guilty of stealing ropes, and that the subjects of our lord the king then understood that that was the meaning of the said words:"-Held, that the word "stealing" could not by any reasonable intendment have any other mean- ing than that of the commission of the offence of larceny; and therefore that the innuendo was negatived by the plaintiff's own evidence that the defendant had intended to impute to the plaintiff that he had defrauded the parish on the sale of the bell-ropes. Id.
4. In an action of slander, words spoken by the defendant in relation to the same transaction, on a former occasion, are receivable in evidence to shew the animus.
5. In an action of slander, a plea stating that the words were spoken in the course of a confidential communication to a person who had made in- quiries respecting the solvency of the plaintiff, and that at the time of speaking the words the defendant believed them to be true-is bad on de- murrer: it should either expressly negative malice, or state the communi- cation to have been made honestly and bona fide, which would probably amount to an implied denial of malice. Smith v. Thomas, 546.
6. A plea negativing the special damage alleged in the declaration, in slander for words actionable per se, is bad on demurrer. Id.
7. In an action of slander, the existence of express malice is only a matter for inquiry where the words complained of are spoken upon a jus- tifiable occasion. Hooper v. Truscott, 672.
8. The plaintiff had lived in the employ of the defendant and his part- ner, linendrapers at Devonport, and had left them with a written charac- ter in which he was described by the defendant as "steady, honest, and industrious." Shortly afterwards some goods that had been stolen from the defendant's shop were found in the possession of a female servant (a person of notoriously bad character), which she stated to have been given to her by the plaintiff. The defendant thereupon went to the house of the plaintiff's uncle in the neighbourhood of Devonport, and there saw the plaintiff's cousin, and in the course of conversation with her said of the plaintiff "He has stolen my goods: he has taken our goods, and given them away: we always suspected him of dishonesty." These words were afterwards repeated in the presence of the uncle. A letter was despatched by the defendant to the plaintiff in London, desiring him to go down to Devonport to meet the charge: but in the meantime the plaintiff's brother had been prevailed upon to settle the affair by giving the defendant 50%.;
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