tion arose more than six years before the action 697 was commenced. Jones v. Pratt,

5621. 108., for payment, half in two months, and half in four months. In an action for not accepting the shares:- Held, that evidence was admissible of a custom among brokers in

(5). Sect. 61-Attachment of Debt. Where judgment is recovered against an exe-mining shares, that, in contracts relating to cutor, a debt due from a third person to the the sale and purchase of such shares, the delitestator's estate, may be attached under the very takes place at the time appointed for paygarnishment clauses of the Common Law Pro- ment. Field v. Lelean, cedure Act, 1854, and it is no answer that a decree has been made in a suit in Chancery for the administration of the testator's estate. Burton v. Roberts, Parker, Garnishee,

93

A judgment-creditor, who has taken his debtor in execution under a ca. sa., cannot attach his debts under the garnishment clauses of the Common Law Procedure Act, 1854. Jauralde v. Parker, 431

CONTEMPT.
See COMMITMENT.

CONTRACT.

(1). Evidence of.

617

(4). Construction of—By Partnership-to employ Agent.-Death of Partner.

A declaration stated that by agreement in writing between B., since deceased, and the defendant, of the one part, and the plaintiff of the other part, B. and the defendant, who at the date of the agreement were carrying on business as stone merchants in copartnership, appointed the plaintiff their sole London agent for a period of four years and a half, and the plaintiff in consideration of the premises agreed to accept the said appointment upon the terms (amongst others) that B. and the defendant should pay the plaintiff 21. 108. per cent. on all accounts received by them for stone sold by the plaintiff, or supplied by B. and the defendant to any person originally introduced to them by the plaintiff.-Breach: that the defendant did not nor would employ the plaintiff as his sole agent for the whole period of four

The master of a steam-tug, of which the defendants were owners, was employed by the plaintiff to tow his smack out of a harbour. In so doing the smack was stranded through the alleged negligence of the master. The plaintiff had on previous occasions hired the defend-years and a half, and did not nor would exeants' steam-tug, and on paying the charge had received a receipt, upon the back of which was printed a notice that the defendants would not be answerable for damage occasioned by any supposed negligence of their servants.-Held, that it was a question for the jury whether the contract was made on the terms printed on the back of the receipts. Symonds v. Pain, 709 (2). Consideration-Sufficiency of-Doing an act which a Party was already bound to do by Contract with another.

The performance of an act which a person has agreed with another to perform, is a good consideration to support a contract with a third person if the latter derives a benefit from the performance.

Therefore where a declaration stated that, in consideration that the plaintiff would deliver to the defendant a cargo of coals on board the plaintiff's ship, the defendant promised to discharge the same at the rate of forty-nine tons a day:- Held, that a plea was no answer which stated that the plaintiffs had made a previous contract with other persons for the delivery of the coals to their order in the same way, and they ordered the delivery to the defendant. Scotson v. Pegg, 295

(3). Evidence of Custom to explain. Upon the sale, by one broker to another, of shares in a mine, they respectively signed bought and sold notes, the former of which was as follows:-" Bought, T. F. 250/5120ths shares in Wheal Charlotte, at 21. 58. per share,

cute certain orders for stone procured by the plaintiff in his said capacity of agent. On demurrer:-Held, that the parties contracted with reference to the then existing partnership business, and that the contract was to employ the plaintiff for a period of four years and a half, subject to the condition that all parties so long lived. Per Channell, B., and Wilde, B. Martin, B., dubitante.

Quære, whether the case falls within the principle of those cases in which, the personal skill of the party being involved, the contract was put an end to by death. Tasker v. Shepherd,

575

[(5). Construction of—Stipulated Damages. Where a written contract had been made in

the following terms: "We undertake to ship for you by the Warrior Queen, guarantying that she sails not later than the first week in July, or forfeit 2s. 6d. per ton, 300 or 400 packages, onethird yarn, at a through rate of 48. 6d., free of commission, provided they are forwarded per Thompson, M'Kay & Co., on or before the 29th inst. ;" and the defendant, in answer to a declaration for breach of the said contract by reason of the non-shipment of a portion of the packages so sent, pleaded the payment of 2s. 6d. per ton on the said packages as and for the forfeit according to the agreement:-Held, on demurrer, that the plea was good.

Per Pollock, C. B., that the forfeiture referred only to the non-shipment.

Per Channell and Wilde, BB., that the forfeiture referred to both terms of the contract.

Liability of Railway Company for Imperfect cannot be deemed fraudulent within the sta

:

Secondly that there was evidence of the seisin of D. at the time of the execution of the settlement: Per totam Curiam. Clarke v. Wright, 849

(2). To Defeat Execution.

so interfered with those which would naturally | great rapidity by steam-power. This machine be made in favour of the husband, wife, and was originally constructed to be worked by issue, that it must be presumed to have been hand by means of an ordinary wynch-handle. agreed upon by all parties as part of the mar- In applying steam-power this handle was reriage bargain that the estate should be so set- moved, but an iron rod to which it had been tled. affixed was unnecessarily allowed to remain. The plaintiff, who had paid for permission to wash, was using this machine when the iron rod caught the sleeve of her gown, and she was dragged towards the machine and severely injured, without any negligence on her part. When it was proposed to apply steam-power to the machine, the defendants were told of its danger.-Held, that the defendants, by availing themselves of the provisions of the 9 & 10 Vict. c. 74, had undertaken a statutory duty which bound them to exercise ordinary care and diligence in providing machines reasonably safe for use, and that they, and not the town council, were liable for the injury sustained by the plaintiff. Mayor of Sunderland, Cowley v. The

See BILL OF SALE.

CONVICTION.

See ASSAULT.

SERVANT.

COPYHOLD.

(1). Custom in, to take Clay.

A custom in a manor, that the copyholders of inheritance may, without license from the lord of the manor, break the surface and dig and get clay without limit in, upon, and from and out of their copyhold tenements, for the purpose of making bricks to be sold by them off the manor, is good in law. The Marquis 123 of Salisbury v. Gladstone, (2). Fine-Description of Premises in Surrender-Evidence of Admission.

A lord of a manor cannot recover a fine not certain, unless it is reasonable, and assessed and demanded.

A surrenderee of copyhold premises has a right to have in his admittance a description of the premises corresponding with that in the surrender.

An entry by a steward of a manor in his book of the admission of a surrenderee of copyhold premises is a mere memorandum, and not such an admittance as will entitle the lord ta claim a fine. Hayward v. Raw and Bates. Hayward v. Cruden,

CORONER.

308

565

(2). In Action on Judgment under 201. The bringing an action on a judgment under 201. with the object of obtaining a judgment above 207. and issuing thereon execution against the person, is an evasion of the 7 & 8 Vict. c. 96, s. 57, and the Court, in the exercise of their discretion, under the 43 Geo. 3, c. 46, s. 4, will not allow the plaintiff his costs. Adams v. Ready, 261

A deputy coroner, appointed under the 6 & 7 Vict. c. 83, is privileged from arrest while preparing to hold an inquest. Ex parte The (3). Bankrupt Law Consolidation Act, 1849, 8, Deputy Coroner of Middlesex,

CORPORATION.

501

Municipal-Liability for Negligence-Baths and Wash-houses.

The defendants, a body corporate, erected baths and wash-houses under the provisions of the 9 & 10 Vict. c. 74. This Act vests the property in the baths and wash-houses in the corporation, but their management in the town council. For the purpose of drying clothes, there was a wringing machine, which consisted of a cylinder into which the wet clothes were pu., and which was made to revolve with

86.

793

meetings are held, and whence orders emanate. | plaintiff had a right of appeal from the decision --Held, that the Company "dwells" at Pad- of the judge in refusing to enter a verdict or dington within the meaning of that word in for a new trial. Foster v. Green, the 9 & 10 Vict. c. 95, s. 128; and consequent- (4). 9 & 10 Vict. c. 128- Where Public Com. ly that, where a plaintiff in an action against pany the Company dwelt more than twenty miles from Paddington, the superior Court had concurrent jurisdiction. Adame v. The Great Western Railway Company,

(5). Security for.

See PRACTICE, (2).

(6). On Appeal from County Court.
See APPEAL, (2).

COUNTY COURT.

404

"dwells."

See COSTS.

COURT OF ASSIZE.

See COMMITMENT.

COVENANT.

By Assignee of Reversion by Estoppel. An assignee of the reversion may establish his title against the lessee by way of estoppel.

J. B., being mortgagor in possession, on the 22d of February, 1848, by indenture executed by him and the defendant, demised to the defendant certain premises for seven years, and the defendant covenanted to repair. On the 2d February, 1854, J. B. executed an inden

(1). Jurisdiction—" Whole Cause of Action.” The plaintiff went to the defendant's residence, which was beyond the jurisdiction of a particular County Court, and there verbally agreed to purchase of him a horse for 281., to be delivered on the following day at the plain-ture, whereby, after reciting the mortgage and tiff's residence, which was within the jurisdiction of that County Court. On that day the defendant brought the horse to the plaintiff's residence, when he required a warranty which was given and the price paid. The plaintiff afterwards sued the defendant in the County Court for a breach of the warranty:-Held, that there was no complete contract until the warranty was given, and consequently the "whole cause of action" arose within the jurisdiction of the County Court. In the Matter of Aris v. Orchard, 160

(2). 9 & 10 Vict. c. 95, 8. 48—Treasurer's Right of Access to Books.

A registrar of a County Court rented offices in which he carried on his business as a solicitor and also the County Court business, he being allowed by the Treasury an annual sum for the part of the offices used for County Court purposes. The treasurer of the County Court gave the registrar notice of his intention to audit the accounts on a Saturday, when, by a County Court Rule, the office closed at one o'clock. The Treasurer went to the office after one o'clock, and finding it closed, broke the locks of an inner door and a cupboard in

which the books were kept, and having taken away the books and audited them, returned them to the office. The registrar having brought an action of trespass against him :Held, that he was justified in so doing under the County Court Acts. Burridge v. Nicholetta, 383

that he had sold the equity of redemption to the plaintiff, he "granted, bargained, and sold, aliened, released, and surrendered the premises, and all his estate, right, and title, both at law and in equity therein, to the plaintiff," &c. The plaintiff sued the defendant for a breach of the covenant to repair. The declaration, after stating the lease and covenant, alleged that J. B. by deed assigned the premises to the plaintiff, whereby the reversion thereof, subject to the term created by the lease, vested in the plaintiff. The defendant pleaded that J. B. did not assign the premises to the plaintiff; nor had he at the time of making the lease any reversion of and in the premises; nor did any reversion in the premises come to the plaintiff :-Held, by the Court of Exchequer Chamber (affirming the judgment of the Court to have the verdict on this plea entered for of Exchequer), that the plaintiff was entitled him: that the defendant was estopped from as would warrant the lease; and as no other denying that the lessor had such a legal estate legal estate or interest was shown to have been in the lessor, it must be taken as against the lessee, by estoppel, that the lessor had an estate in fee. Cuthbertson v. Irving,

CUSTOM.
Validity of.

See COPYHOLD.

DAMAGE.
When too Remote.

See FALSE REPRESENTATION.

135

(3). Appeal-13 & 14 Vict. c. 61, s. 14. On the trial of a cause before the judge of a County Court and a jury, the jury found at special verdict, on which the County Court judge entered the verdict for the defendant, giving leave to the plaintiff to move to enter (1). Measure of-For Non-completion of Con

a verdict or for a new trial. The application

was subsequently made and refused.-Held,

DAMAGES.

tract.

The defendant, on the 26th of July, sold by

that under the 13 & 14 Vict. c. 61, s. 14, the sample to the plaintiff 3000 gallons of nap

tha, at 28. 2d. On the 27th the plaintiff resold the same to one H., also by sample, at 2s. 6d. It appeared that the sample contained 73 per cent. of benzol, an article used in the manufacture of Magenta dye then newly discovered, and for that purpose was worth 56. 9d. a gallon. The defendants failed to deliver the naptha. It was proved that H. had claimed the difference between 58. 9d. and 2s. 6d. from the plaintiff. In assessing damages for the nondelivery of the naptha the jury gave this amount to the plaintiff as damages.-Held, that there must be a new inquiry, because it did not appear at what price the plaintiff could have procured naptha according to the sample at the time of the breach.

On a second inquiry it appeared that naptha known to contain 73 per cent. of benzol could not have been bought for less than 5. 9d. at the time of the breach. The learned Judge before whom the inquiry was executed, told the jury that the plaintiff would have no answer to an action by H. for the difference, and advised the jury to give such a sum as would enable him to pay H. The jury having given this amount:-Held, that the damages were rightly assessed, and that there was no misdirection. Josling v. Irving, 512

(2). Measure of, in Action against Carrier for

Non-delivery of Goods.

The plaintiffs delivered to the defendants, who were carriers, ten tons of cotton to be carried from Liverpool to Oldham. In the usual course the cotton should have been received on the following day, but it did not in fact arrive till four days afterwards. In consequence of the delay a new mill of the plaintiffs was stopped for want of cotton to go on with. At the time of the delivery of the cotton to the defendants nothing was said as to the particular inconvenience likely to result from the delay in forwarding it. But on the day before it was delivered to the defendants, and repeatedly on each succeeding day until it arrived at Oldham, one of the plaintiffs called to inquire about it; and on each occasion told the manager of the goods department at the Oldham station that the mill was at a stand, solely on account of the non-delivery of the cotton. In an action against the defendants for neglect in delivering the cotton, the plaintiffs proved that during the time the mill was at a stand they had paid in wages 71.; and that the profit which would have been made if the mill had been at work was 71. 108. The judge of the County Court told the jury, that when, as in the present case, by the neglect of a carrier, a man had no material to carry on his business, he had a right to charge as legal damage such loss as naturally and immediately arose from stopping the mill; that the plaintiffs were entitled to the money they had actually paid as wages, 7., and that the profit which the plaintiffs

would have made was a fair subject of calculation; and the jury should therefore give, over and above the sum of 7., such amount as would be the actual loss and detriment the plaintiffs had suffered by the non-arrival of the cotton in due course.-Held, that this was a misdirection, and that the plaintiffs were not entitled to the amount of wages paid and of the profits lost as legal damages, inasmuch as it assumed that the stoppage of the mill arose entirely from the non-delivery of the cotton, when in fact it arose partly from that and partly from the plaintiffs having no cotton to go on with.

Semble, that the jury might have properly given the amount of the wages and loss of profit as damages, if they had found as a fart that the stoppage of the mill was a consequence of the non-delivery of the cotton which, either from express notice or the course of business in the district, might have been anticipated by the parties at the time of making the contract.

Quære, per Bramwell, B., whether if, in the course of the performance of a contract, ono party gives notice to the other of any particular consequence which will result from a breach of the contract, and the latter, after that notice, persists in breaking the contract, the former may not hold him responsible in damage for the consequences if they result from the breach, though they are not such as would naturally arise, and were not in contemplation of the parties at the time of the contract. Gee, Appellant, v. Lancashire and Yorkshire Railway Company, Respondents,

(3). Exemplary.

211