936 PRINCIPAL AND AGENT. (3). Staying Proceedings. PRINCIPAL AND SURETY. to a subscription club, of the commit The Court will not stay the proceed-tee of which the defendants were ings in an action, on an affidavit that a former action had been brought between the same parties for the same cause of action, which was settled by the defendant paying the debt and costs; but the defendant must plead the former recovery in bar. Ross v. Jacques, 135 (4). Setting aside Proceedings, Time for. Judgment for want of a plea was signed on the 17th of April, and a summons was taken out for setting it aside, which was discharged on the 23rd. Execution issued on the 27th, and on the 28th defendant moved the Court to set aside the judgment for irregularity:-Held, that the application was too late. Shield v. Quick, 289 PRACTICE IN REVENUE An action brought in another court against a revenue officer for the value of goods seized by him for a breach of the revenue laws, will be removed into this Court, on the application of the Attorney-General, at any stage of the proceedings. And the affidavit in support of such application was held to be properly entitled as between the Attorney-General and the plaintiff in the action, proceedings having been commenced for the condemnation of the goods, although no information had yet been filed in this Court. The Attorney-General v. Kingston, 163 PRINCIPAL AND AGENT. Liability of Agent. (1). Committee-men of Club. In an action against the defendants, to recover the price of wine furnished members, it was proved that the wine was ordered by the house-steward, who stated that he had authority to do so from the members of the committee. It was not shewn that the defendants had either personally interfered in ordering the wine, or been present at any meeting of the committee when the authority to order the wine was given; but merely that they were members of the general body of the committee:-Held, that, under these circumstances, the question for the jury was not, whether the defendants, by their course of dealing, had held themselves out as personally responsible to the plaintiffs, but whether they had individually authorized the making of the contract in the ordering of the wine. Todd v. Emly, 505 (2). On Contract purporting to be made by him. In an action on a written agreement, purporting on the face of it to be made by the defendant and subscribed by him for the sale and delivery by him of goods above the value of £10, it is not competent for the defendant to discharge himself on an issue on the plea of non assumpsit, by proving that the agreement was really made by him by the authority of, and as agent for, a third person, and that the plaintiff knew those facts at the time the agreement was made and signed. Higgins v. Senior, 834 PRINCIPAL AND SURETY. Right of Action for Contribution. Where one of two persons, who, as sureties for a third, signed together with the principal a joint and several promissory note, on the note becoming due, paid the amount, although no demand had been made or action brought against him by the holder: (3). Variance of Writ from Judgment -Amendment of Writ. A writ of fi. fa., whereby the sheriff is directed to levy a sum different in amount from that mentioned in the judgment, although smaller, is irregular; unless the reason of the variance be shewn on the face of the writ. And the Court will not amend the writ, where the rights of third persons have intervened: as where the defendant has become bankrupt since the execution of the writ. Webber v. Hutchins, 319 PROCHEIN AMY. Who may be. Where an uncertificated bankrupt was procured to be appointed prochein amy for an infant plaintiff, the Court, on motion, removed him, and ordered another to be appointed. The father, as being the natural guardian of the infant, ought in the first instance to be appointed prochein amy, and if his evidence is likely to be required at the trial, an application ought to be made to the Court to release him, by the appointment of a proper substitute. Watson v. Fraser, 660 The affidavit in support of an application for a capias, under the 1 & 2 Vict. c. 110, s. 3, need not state that the deponent has probable cause for believing that the defendant is about Right of Occupiers of severed Lands to quit England; it is sufficient if the facts stated in the affidavit enable the Judge to form that belief. Snook, Willis v. 147 2. Discharge from, Time for. The Court refused, after the lapse of a year, to discharge a party who had been arrested under a ca. sa. in a wrong county, although he swore that he was not aware of that fact until ten months after his arrest, and that he then applied immediately for his discharge to a Judge, who refused VOL. VIII. RAILWAY ACT. to cross Railway. visions of the act"), at all times for the purpose of occupying the said land, without payment of toll, might pass and re-pass directly over and across such parts of the railway as should be made in or upon their respective lands. The 186th section prohibits all persons, except the company and their servants, from crossing the railway, "except only directly crossing the same at places to be appointed for that purpose, for the necessary occupation of the respective lands through which the said railway should pass." And by the 180th section, in case of dispute, the company are to make such communication as two or more justices of the peace shall, upon the application of any owners, &c., judge necessary and appoint:-Held, that until the company had made a communication, the owners of several lands had a right to cross the railway at any part within their respective lands. Grand Junction Railway Company v. White, 214 RAILWAY COMPANY. Liability of, as Carriers. A parcel was delivered, at Lancaster, to the Lancaster and Preston Junction Railway Company, directed to a person at a place in Derbyshire. The person who brought it to the station offered to pay the carriage, but the book-keeper said it had better be paid by the person to whom it was directed, on the receipt of it. The Lancaster and Preston Junction Railway Company were known to be proprietors of the line only as far as Preston, where the railway unites with the North Union line, and that afterwards with another, and so on into Derbyshire. The parcel having been lost after it was forwarded from Preston:-Held, that the Lancaster and Preston Railway Company were liable for its loss. Muschamp v. The Lancaster and Preston Junction Railway Company, 421 RAILWAY SHARES. Action for Non-acceptance of-Evidence-Damages. In an action for the non-acceptance of railway shares, which by the contract (made at Liverpool through brokers) were to be delivered in a reasonable time, a written rule of the Liverpool Stock Exchange, stated to be acted upon by all the Liverpool brokers-"that the seller of shares was in all cases entitled to seven days to complete his contract by delivery, the time to be computed from the day on which he was acquainted with the name of his transferree" — was held admissible on an issue whether the plaintiff within a reasonable time was ready and willing and offered to transfer the shares; although it was not proved that either of the parties, or their brokers, was a member of the Liverpool Stock Exchange. In such action, the proper measure of damages is the difference of the prices of the shares according to the contract, and on the day when they were resold by the vendor, such resale being within a reasonable time. Stewart v. Cauty, RECITAL. REFORM ACT. 160 (1). Right of Town Clerk to Remuneration under. The town-clerk of a borough cannot maintain an action of debt against the corporation for fees in respect of the performance of the duties imposed upon him by the Reform Act or the Municipal Corporation Act; although he received no stated salary as town-clerk, and although the then corporation, in several years before the passing of the Municipal Corporation Act, made payments to him for the performance of the duties imposed on him by the Reform Act. Jones v. Mayor, &c. of Carmarthen, 605 SCIRE FACIAS. A notice of motion for leave to sign (2). Expenses of Election. By the 2 Will. 4, c. 45, s. 68, it judgment on a scire facias was left with a person at a house at H., who stated herself to be the defendant's housekeeper, that defendant could not account for his absence, somewhere in London, and that she is enacted, that at every contested election, &c., the returning officer shall, if required thereto by or on behalf of any candidate, on the day fixed for the election, and if not so required may, if it shall appear to him expedient, cause to be erected, for taking the poll at such election, different booths, &c. And the 71st section provides, "that all booths erected for the convenience of taking polls shall be erected at the joint and equal of the several candidates:Held, that the "contested election" referred to in the 68th section, is the poll, and the candidates referred to in the 71st are candidates who go to or demand a poll. Therefore, where a candidate was put in nomination, but afterwards declined going to the poll: -Held, that he was not liable to any part of the expenses of erecting booths, Muntz v. Sturge, expense &c. REPLEVIN BOND. 302 The condition in a replevin bond, for prosecuting the suit with effect, means the prosecuting it to a not unsuccessful termination. In a declaration in an action on a replevin bond, the breach assigned was, that the defendant did not appear at the next County Court, and then and there prosecute his suit with effect:-Held, that the breach was not well assigned, it being consistent therewith that the suit might have been begun at the next County Court, and be still pending. Semble, that the words "then and there," usually inserted in the condi was except that he was concealing himself in order to avoid his creditors: Held sufficient. Dixon v. Thorold, 297 SEDUCTION. See BANKRUPTCY, (4), 2 SEPARATION DEED. Construction of Covenant of Indem nity against Wife's Debts. A deed of separation between husband and wife contained a covenant by the wife and her trustees, that she, her executors or administrators, or the trustees, or some or one of them, should and would at all times save, defend, and keep harmless and in demnified the husband from and against the debt or debts, sum or sums of money, which she the wife had then, at the time of the making of the indenture, contracted, or which she should at any time thereafter, during the separation, contract:Held, that this covenant included debts previously contracted by the wife for necessaries, while living with the husband. To an action on this covenant, assigning a breach in not indemnifying against a debt of the wife, the defendants pleaded, that the alleged debt in the declaration mentioned was not contracted within the true intent and meaning of the covenant; concluding to the country: -Held bad, as being Q Q Q 2 See APOTHECARIES' ACTS. How to be described in pleading. Where a statute is passed in a session of Parliament which commenced in one year of a reign but is continued into another, it is incorrect to describe the statute as passed in both years, but it may be described as a statute passed in a session of Parliament holden in both years. Gibbs v. Pike, 223 STOPPAGE IN TRANSITU. A cargo of eighty quarters of wheat was shipped in London, on the 6th December, 1839, on board a vessel bound to Barmouth and Tremadoc, and by the bill of lading, was to be delivered at the port of Barmouth and Tremadoc to L. T., or to his assigns, on his paying freight, &c. The cargo was paid for by L. T. partly in cash, partly by his acceptance at two months. On the 28th January, 1840, L. T. by deed assigned all his estate and effects to the plaintiff and A. B., in trust for the benefit of themselves and his other creditors. L. T. was at that time insolvent to the plaintiff's knowledge. The bill of lading was indorsed by L. T. to the plaintiff as follows (the indorsement being without date):-"I do hereby order that Captain J. do deliver the possession of the within-mentioned quantity of wheat to Mr. R. J. [the plaintiff, being one of my assignees, to be disposed of as he may think proper." On the 4th February, the vessel arrived at Barmouth with the wheat on board, and the plaintiff there went on board and took samples, and sold 70 of the 80 quarters, for which he paid the freight, and they were delivered to the purchasers: and he directed the master to take forward the remaining 10 quarters to Treniadoc. On the 9th February, L. T.'s acceptance became due and was dishonoured, and on the 10th the shippers gave notice to the captain, at Barmouth, not to deliver the wheat, but to hold it to their use. On the 23rd, the vessel arrived at Tremadoc, where the plaintiff demanded the remaining 10 quarters, tendering the freight, but the master refused to deliver it. Held, that under these circumstances, (even supposing the plaintiff to be in the same situation as L. T.) the right of stoppage in transitu was determined, as to the whole of the cargo, by the acts done by the plaintiff at Barmouth. Semble, that if the composition deed contained a release to L. T., the plaintiff was an indorsee for value of the bill of lading, and no right of stoppage in transitu therefore existed as against him. Jones v. Jones, 431 SURETY. See PRINCIPAL AND SURETY. TENDER. See CARRIER, (2). |