of the goods, and is liable, not only for any act which amounts to a total abandonment of his character of a carrier, or for wilful negligence, but also for a conversion by a mis-delivery arising from inadvertence or mistake, if such inadvertence or mistake might have been avoided by the exercise of ordinary care. In case against carriers, the first count stated a delivery to the defendants, at their request, of a case containing certain maps, to be carried &c., and alleged a receipt thereof by the defendants, whereby it became their duty to take due and proper care thereof; but that they did not take due and proper care of them, whereby the goods were lost. The second count was in trover. Plea to the first count, that at the time of the delivery of the case and its contents, the defendants were common carriers for hire, and then gave notice to the plaintiff, who then had notice and knowledge, that the defendants would not be responsible for the loss of, or damage done to, certain goods and chattels, delivered to them for the purpose of carriage, and, amongst others, maps in packages or otherwise, unless the same were insured according to their value, and paid for at the time of delivery; that the said case was the package in which the said maps were contained; that they received the case and maps to be carried as aforesaid, upon the terms and conditions of the said notice, and upon no other terms whatsoever, of which the plaintiff at the time of the delivery had notice, and that the maps were not at the time of the delivery insured according to their value, or paid for. To the count in trover there was a similar plea, alleging the conversion to have been by a mis-delivery, through mistake and inadvertence. On special demurrer to both pleas:-Held, first, that the action being founded on a breach of duty ex contractu, the allegation in the pleas of a special contract was sufficient; and that as the defendants accepted the goods only on the terms of the notice, a special averment of the plaintiff's consent was unnecessary. Secondly, that the third plea was not an argumentative traverse of the facts in the declaration, from which the breach of duty was implied. Thirdly, that, as the declaration might apply to any kind of negligence, it was not necessary to allege in the third plea, that the loss was occasioned by such negligence as the defendants were not responsible for; and that if the defendants had committed negligence for which they were liable notwithstanding their notice, the plaintiff should have new assigned it. Fourthly, that the case was not separable from the maps. Fifthly, that the plea to the count in trover could not be supported, inasmuch as it admitted a conversion by inadvertent delivery, and did not shew that the inadvertence was such as was protected by the notice. Wyld v. Pickford, 443 CERTIFICATE OF JUDGE. See COSTS, VI. CHARTER. See BOROUGH. CLUB. See PRINCIPAL and Agent, 1. COGNOVIT. (1). What amounts to. 1. An action having been brought, and issue joined, and notice of trial given, the defendant signed a consent for a Judge's order for a stay of proceedings, on payment of debt and costs by a certain day, with the usual condition, that, in default of payment, the plaintiff should be at liberty to sign final judgment, and issue execution. No attorney attended on behalf of the defendant when the consent was given; but both parties appeared before the Judge when the order was given:-Held, that the consent did not amount to a cognovit, and did not require a stamp, or the attendance of an attorney at the time of its execution, pursuant to the provisions of 1 & 2 Vict. c. 110, s. 9. Bray v. Manson, 668 2. Where a defendant, on being served with process in an action, went to the plaintiff's attorney, and without any attorney attending on his behalf, signed a consent for a Judge's order for the payment of the debt and costs on a particular day, and in default thereof, that the plaintiff should be at liberty to sign judgment and issue execution; in consequence of which a Judge's order was subsequently obtained by the plaintiff's attorney ex parte, and default having been made, judgment was signed, and execution issued: -Held, that the consent did not amount to a cognovit, or require to be attested according to the provisions of 1 & 2 Vict. c. 110, s. 9. Baker v. Flower, 670 II. Of proving Document. Notice to admit. In an action by the coroner of the county of Lancaster for disturbance in his office, the plea set forth a charter granted by the Crown to the borough of Manchester, pursuant to the stat. 1 Vict. c. 78, s. 49, and the issue in the cause was, whether the petition for such charter was the petition of the inhabitant householders of the borough, and whether the charter was accepted by them. The defendant had witnesses in attendance at the trial, to prove the genuineness of the signatures to the original charter, which was lodged at the Privy Council office:-Held, that the charter was a document which the defendant ought to give a notice to admit and inspect, within the rule of H. T. 4 Will. 4, s. 20, and that, not having done so, he was not entitled to the costs of the witnesses above mentioned.-That rule extends to every document which a party proposes to adduce in evidence, and is not confined to documents in his custody or control. Rutter v. Chapman, 338 III. Of Declarations on Bills or Notes. The directions to taxing officers, authorizing them in cases to which the rule of T. T., 1 Will. 4, for short ening declarations, is applicable, to | VI. Certificate under 3 &4 Vict. c. 24. (1). Discretion of Judge thereon. The Court has no jurisdiction to review the discretion exercised by a Judge at Nisi Prius in granting a cer allow 11. 18s. for the declaration, do not extend to cases in which more than one action is brought on the same bill or note; but in such case, the taxing officer is to allow accord-tificate to entitle the plaintiff to costs, ing to the length of the declaration. under the stat. 3 & 4 Vict. c. 24, Cripps v. Field, Barker v. Holier, 659 s. 2. (2). When to be given. 513 1. In an action on the case for a IV. Of several Issues. In an action of trespass qu. cl. fr., the defendant pleaded first, not guil-nuisance to the plaintiff's market, ty; secondly, that the plaintiff was not possessed of the close; thirdly and fourthly, special pleas of prescriptive rights. The plaintiff, after joining issue on the first two pleas, traversed the right in the last two pleas, and new assigned excess. The defendant paid 10s. into Court on the new assignment, and the plaintiff accepted that sum in satisfaction, and entered a nolle prosequi as to the other causes of action:-Held, that the defendants were not entitled to the general costs of the cause. Benn v. Bateman, 666 V. In Trover. In trover for waggons, wheelbarrows, iron rails, &c. &c., a verdict was given for the plaintiffs at the trial for 18501., but afterwards, on the argument of a special case, was reduced by consent to 6007., and the following rule was drawn up::-"It is ordered, by consent, that the verdict found for the plaintiffs on the trial of this cause be reduced to the sum of 600l., and that as to the residue of the claim, the verdict be entered for the defendants:-Held, that this was the proper course, the issue being divisible, and that the plaintiffs were not entitled to have the verdict entered generally for them, but the defendants were entitled to a verdict and to their costs, as to so much of the cause of action as they had succeeded on. Williams v. The Great Western Railway Company, 856 which was the last cause tried at an assizes, the verdict was found for the plaintiff with nominal damages, and the Judge thereupon immediately adjourned the Court to his lodgings, and quitted the Court. No application was made in Court for a certificate under the 3 & 4 Vict. c. 24, that the action was brought to try a right; but the plaintiff's counsel followed the Judge to his lodgings, and there, within a quarter of an hour after the delivery of the verdict, obtained from him such certificate:-Held, that it was well given. Thompson v. Gibson, 281 2. On the execution of a writ of inquiry in trespass, the jury having assessed the damages at one farthing, the under-sheriff was applied to to certify under the stat. 3 & 4 Vict. c. 94, s. 2, that the trespass was wilful and malicious. He said that the trespass was wilful, but he would take time to consider whether he would certify that it was malicious. Court then adjourned, and on the same day, at 5 p. m., met again to take an inquisition under an elegit:Held, that a certificate given by the under-sheriff pursuant to the act, on the same day, but after the Court had so met again, was valid. Page v. Pearce, 677 (3). In Libel. The In an action for libel, the Judge has power to certify, under the 3 & 4 Vict. c. 24, s. 2, that the grievance DEBTOR AND CREDITOR. for which the action was brought was wilful and malicious. The words of the statute, "wilful and malicious," import personal malice and ill-will to the plaintiff, as contradistinguished from the malice in law which is essential to sustain an action for libel. Foster v.Pointer, 395 (4). Power of Arbitrator to grant. DEBTOR AND CREDITOR. 919 that the defendant, by certain articles of agreement under seal, (which recited that one R. M'G. had opened an account with the plaintiffs, a banking company), covenanted and agreed to guarantee and be accountable for the due payment of all sums of money which then were or thereafter should become due to the plaintiffs from R. M'G., by reason of any money, &c., Where an action of trespass was rethen advanced or owing, or thereafter ferred by order of Nisi Prius, which to be advanced or owing on the bankempowered the arbitrator to amend ing account from the said R. M'G., the pleadings, and to certify for costs, stating that such guarantie was li in the same manner as a Judge at mited to £500, and was to be a contiNisi Prius: and the arbitrator award-nuing guarantie, and providing that ed a verdict for the plaintiff with nominal damages, and certified in his award that the action was brought to try a right, &c.:-Held, that he had power to do so, and that the plaintiff was entitled thereon to his full costs. Spain v. Cadell, 129 not only the £500 should be paid to in case of bankruptcy or insolvency, the plaintiffs by the defendant, but that the plaintiff's should be at liberty to apply the whole of the dividends receivable on their whole debt in discharge of the part not guaranteed; that the sum of 5997. 13s. 4d. became and was and still is due upon the advance of monies by the plainAn application to review the tax- tiffs to R. M'G., yet that R. M'G. did ation of costs ought not to be made before the Master has made his allo- fendant became liable to pay the sum not pay the same, and thereby the decatur, as he has not, until doing so, of £500, the amount of his guarantie. finally decided what costs he will al-To this the defendant pleaded, selow. Sellman v. Boorn, VII. Taxation. 552 COURT OF EXCHEQUER. COVENANT. See LEASE. SEPARATION Deed. DAMAGES. DEBTOR AND CREDITOR. Composition between-Reservation of condly, that no part of the sum of 5997. 138. 4d. was due or owing from the said R. M'G. to the plaintiffs on the said banking account, modo et formâ. Another plea was, that, after the accruing of the debt of R. M'G. to the plaintiffs, he was indebted to them in £1100, of which the sum of 5991. 138. 4d. was parcel, and was also indebted to other persons in large sums of money, and was in bad and insolvent circumstances, and unable to pay the plaintiffs and his other creditors their debts in full, and that thereupon he agreed with the plaintiffs and his other creditors to pay, and the plaintiffs and the other creditors mutually agreed with each other and with the said R. M'G. to accept from him, a composition of 10s. 6d. in the pound, as a composition in full discharge of the said respective debts; and the plea then stated the payment by R. M'G. of the composition to the plaintiffs. Replication, that the plaintiffs entered into the composition with the knowledge of the defendant, and upon the agreement that it should not discharge the defendant from his liability upon the guarantie: which was denied by the rejoinder. At the trial, the facts stated in the replication were found by the jury, and the learned judge told them that under those circumstances they ought also to find the second issue for the plaintiffs, which they accordingly did. Held, that the second plea amounted to a denial that there was any originally existing debt, and not of a debt being due at the commencement of the suit. Held, also, on a rule to arrest the judgment, that the replication to the fourth plea was good, inasmuch as it did not appear that the reservation of the plaintiffs' rights against the defendant was unknown to the other creditors. Davidson v. M'Gregor, 755 DEED. Estoppel by. Where a distinct statement of a particular fact is made in the recital of a bond or other instrument under seal, and a contract is made with reference to that recital, it is not, as between the parties to the instrument, and in an action upon it, competent to the party bound to deny the recital; and a recital in an instrument not under seal may be such as to be conclusive to the same extent. But a party to an instrument is not estopped, in an action by another party, not founded on the deed, and wholly collateral to it, to dispute the facts so admitted; but evidence of the circumstances under which such ad By indenture of the 12th of April, 1804, and by a fine and recovery levied in pursuance thereof, certain hereditaments and premises were settled to the uses of such persons &c. as the settlor should by deed or will appoint; and in default of appointment, to the use of the settlor in tail general; remainder to J. L., the second son of the late Sir J. L., for life; remainder to the eldest son of J. L. in tail male; remainder to the second, third, fourth, fifth, and all and every other the son and sons of the body of the said J. L., in tail male; remainder to L. C. for life, with remainders over: subject to a proviso, "that in case J. L., or any issue male of his body, shall become entitled to the possession or to the receipt of the rents and profits of the family estates of the said Sir J. L., deceased, then and in every such case the uses and estates hereinbefore limited, expressed, and declared of and concerning the said hereditaments and premises whereof a fine and recovery are covenanted and intended to be levied and suffered as aforesaid, to or for the benefit of him or them who shall so become entitled to the possession or the receipt of the rents and profits of the family estates of the said Sir J. L., and to and for the benefit of the issue male of such person or persons so becoming entitled, shall cease, determine, and be absolutely null and void; and then, and in every such case, all and singular the said hereditaments and premises shall immediately thereupon, from time to time, devest out of the |