1818.

CARR against CLARKE.

1818.

11th April.

Master liable

for accident in

consequence of chain-stay of cart breaking,

away and da

by the evidence of one of the criminal parties, and therefore should be kept within close bounds. The declaration must state that the girl was the servant of the plaintiff. Lord Mansfield, in the case referred to, after looking into the cases said, that the action would not lie, unless it was laid per quod servitium amisit.

Scarlett then observed, that WOOD, B. was anxious that the motion should be brought before the Court. And,

ABBOTT C. J. observed, that it was very natural that any person should feel anxious, that the law upon this subject was rather different from what it is.

Rule refused.

WELSH against LAWRENCE.

NOLAN moved to set aside a verdict for the plaintiff for the value of a horse killed by driving defendant's cart. He questioned whether the eviwhen horse ran dence supported the declaration, which averred, that the cart was under the management of the defendant's servant. The proof was, that going down the hill the chain-stay broke, and the defendant's horse was frightened and ran away. It was averred in the counts, that it was damage by the negligence of the servant.

mage was done,

for his negligence, in not having the tackle good.

LORD ELLEN BOROUGH C. J. The master is bound to have good tackle, and is negligent if he does not.

BAYLEY J. If he is driving negligently as to the tackle, he is driving negligently.

Nolan. The question is, whether that is driving the horse negligently.

ABBOTT J. Clearly so.

Rule refused.

MONEY HAD AND RECEIVED.

ROBSON against ANDRADE.

SCARLETT moved for a new trial.

PER CURIAM. The plaintiff could not maintain his action against the defendant as a stakeholder, for the plaintiff's proportion of the sum deposited in the defendant's hands for the benefit of the plaintiff and others, without shewing the plaintiff's certain exact proportion.

(a) See 1 Stark. 372.

Rule refused.

1816.

12th Nov.

The plaintiff, to recover his

share of a stake

from a stake

holder, must shew his exact proportion (a).

MORTGAGOR AND MORTGAGEE.

1818.

26th Nov.

ANONYMOUS.

Rule granted OMYN moved, in an action of covenant upon a

for delivering up mortgage

deeds on payment of debt, interest, and

costs, in an action of covenant (a).

mortgage deed (a), for a rule calling upon the defendant to shew cause why it should not be referred to the Master to ascertain what was due for principal and interest upon the deed on which the action was brought; and why, upon payment of principal and interest, together with the costs of the action, the mortgagee should not be directed to give up the mortgage deed to the mortgagor.

BAYLEY J. To grant this motion seems to be converting this Court into a Court of Equity. However, the rule nisi may as well be granted, as cause may af

terwards be shewn.

THE COURT granted a rule nisi, which was afterwards made absolute, but without opposition.

(a) See statute 7 Geo. 2. c. 20. s. 2; and 7 T. R. 185; Berther v. Street, 8 T. R. 326. 410, where it was held that the Court may grant a rule for a reference to the Master to compute what is due for principal and interest, in an action of covenant; but it does not appear to have been usual to grant the rule in the extent to which it was carried in the principal case. The statute enacts, that where any action shall be brought on any bond, for payment of the money secured by such mortgage, or performance of the covenants therein contained; or where an action of cjectment shall be brought by any mortgagee, it shall be lawful for the party entitled to the equity of redemption, at any time pending such action, to bring into Court the principal money and interest, &c. and by rule of Court to obtain a reconveyance, &c.

MOTIONS.

PHILLIPS against WEYMAN.

THIS was a motion for staying proceedings on pay. ment of costs; and on a former day the case had been fully discussed by Counsel on both sides, and the rule discharged.

Abraham now moved to open the rule, on a suggestion that new matter had come to the knowledge of the agent in town, which would probably alter the former decision of the Court if the rule was again opened.

Campbell resisted the application, as being quite contrary to practice.

PER CURIAM. If we were to yield assent to this motion we should be called upon to discuss twice over almost every case which comes before us for decision. The time of the Court is abundantly too limited for the dispatch of ordinary business, and we have not leisure for works of supererogation.

Refused.

(a) See Rex v. Sheriffs of Middlesex, 1 Chitty, 445, rule of court and decisions; and Tidd, 7th ed. 528.

In re HELLYER and SNOOK.

CHITTY had obtained a second rule to set aside The Court will

an award, one having been obtained before and not grant a sedischarged.

aside an award, when a rule for

that purpose

LORD ELLENBOROUGH C. J. If a rule has once has already

(a) See the last case, and note.

been discharged (a).

1818. ANONYMOUS.

1816.

2d July. The Court will

been obtained to set aside an award, we must assume that the objections taken on that rule are all that can be taken to the award.

not, at the close BA

of the Term, grant a rule

nisi to shew

ANONYMOUS.

AYLEY J. The Court will not, at the close of the Term, grant a rule nisi to shew cause at Chambers, if it is the fault of the party that he has not come sooner. cause at Cham- The Court yesterday said they would not, under such circumstances, add to the pressure of business at Chambers.

bers, where the

party could have come carlier (a),

ABBOTT J. said the same the next day; and added, that the practice of shewing cause at Chambers was quite modern.

(a) See Tidd, 7th ed. 518. 531.