Page images
[ocr errors]

The principal facts appearing on the affidavits on both 1862.

sides were, that a Captain B. as principal debtor, and Sir „'""""' 1 T> • • Edmonds

J. F. and the defendant, S. B., his sureties, had entered *

into a bond for securing 5,000/. to the plaintiff, and the defendant had also, as a further security,executed a warrant of attorney to the plaintiff, on which the judgment referred to was entered up against the defendant; and the defendant was in January, 1862, taken in execution for a sum exceeding 5,000/., for principal, interest and costs. Sir J. F., in discharge of his liability as co-surety on the bond, paid the amount indorsed on the ca. sa., and an agreement was signed, by which the defendant and Captain B. agreed to assign certain interests in property as security for sums (including the sum so paid) which Sir J. F. had paid, or was liable to pay as surety. The defendant had been requested to execute the assignment and warrant of attorney, but had not done so; and no part of the payments of Sir J. F. had been reimbursed, either by the principal or by the defendant. An action was pending at suit of Sir J. F. against the defendant, for a sum of 14,000/., including the money paid by him in January. On the 22nd of November instant the defendant was again taken on a ca. sa. issued on the judgment, the ca. sa. being indorsed to levy 2,500/. The affidavits, in opposition to the summons, stated that after the payment by Sir J. F. in January, the warrant of attorney and judgment against the defendant were held by the plaintiff and Joseph Joel, for whom, in fact, the plaintiff was really a trustee, on behalf of and in trust for Sir J. F.; and that the first ca. sa. was issued with their knowledge and consent, but for the sole benefit of Sir J. F., and reliance was placed on the provisions of the Mercantile Law Amendment Act.

Garth, in support of the summons, contended that the section referred to did not authorize the taking in execution a second time, and that, if it did, the second ca. sa.


1862. could not be issued until an assignment of the judgment should be executed by the judgment plaintiff; and that the agreement of January last, whereby particular security was to be given to Sir J. F., excluded the right to resort to this remedy.

Aspland, in opposition to the summons, contended that Sir J. F., as co-surety, paying the whole debt, had a right to resort to all securities given by the co-surety for the recovery of the moiety so unpaid, and referred to Thompson v. Parish(a), as showing that the former taking in execution did not satisfy the judgment, or extinguish the debt. The decisions in Equity, before the late statute, had laid down that a surety or co-surety could not have the benefit of a judgment where it was satisfied by payment, and the statute was expressly passed to alter this. Payment, therefore, did not preclude this remedy, and it could not be said that Sir J. F. had let the defendant out of custody. That was involuntary and was the act of the law (b), and was also in point to show that this remedy existed. No previous assignment of the judgment was necessary, and there was what amounted to an assignment.

Cbompton, J., said, he had at first had a doubt, whether the judgment creditor could confer a greater right than he himself possessed, but this seemed to be met by the express terms of the section. The circumstances showed an equitable assignment of the judgment remedy to Sir J. F., and there was nothing in the assignment of January to exclude the resort to the remedy in question; and dismissed the summons.

(a) 28 L. J., C. P. 153. L. J., C. P. 39, and 9 C. B., N. S.

(6) Batchellor v. Lawrence, 30 543.

[ocr errors]


ABDUCTION: taking girl out of streets. R. v. Green, 274.

ABUSE OP PROCESS, order for delivery up of property obtained by. Leverson v.
Schwubacher, 117.

ACCEPTANCE, evidence of what is, under Statute of Frauds. Bowes v. Pontifei,
740; Cawthra v. Billiut, 850. (And see cases collected in notis.)

ACCOUNT BOOKS, inspection of plaintiff's. Fergusson v. Coombe, 87.

ACCOUNTS, contract to render, pleading on. Great Ship Co.v. Russell, 94.

ACTION, right of, or liability to; liability of Secretary of State or public officer in the
exercise of his functions. Dickson v. Combermere, 527; Irwin v. Grey, 635.
(And see cases collected in notis.)

ADDING PLEA after issue joined. Carrick v. Holderness, 99.
defence arising since last pleading. Ibid,
without giving up prior pleading. Ibid.

ADJOURNMENT OF TRIAL, terms on which granted. Bremner v. Dando, 231.

ADMISSIONS OF DEED, explanation of. Painter v. Abel, 518.

ADVERSE POSSESSION of lands under the Statute of Limitations—possession not
adverse to the owner. Allen v. England, 49.
occupation on sufferance. Ibid. (And see Westbrook v. Kerrick, 59.)

AGENT, employment of, to obtain loan, right of action on. Green v. Reed, 226;

Thompson v. Clark, 181; Topping v. Htaley, 325; Mason v. Ctifion, 899.
action against, by principal, for breach of duty; selling principal's goods. Lienard

v. Dresslar, 212.
dealing with principal's shares. Dantra v. Stiebel, 951.
liability of, when "in charge" of a vessel. Holmes v. Clark, 336.
authority of, to receive payment. Breming v. Mackie, 197; Curlewis v. Birkbeck,

liability of, for misrepresenting his authority. Hughes v. Grame, 885.

AGREEMENT in writing, adding terms to, by oral evidence. Arbon v. Fussell, 152.
evidence to apply it. Bruff v. Conybeare, 56.
parol, afterwards reduced to writing; written proposal orally accepted. Laing v.

Smith, 97. (And see note on subject, p. 98.)
oral evidence as to extras. Franklin v. Darke, 65.
inspection of. Edwards v. Bond, 100.
construction of, as to computation of time. Turner v. Barlow, 948.

AMENDMENT: order for compulsory; pleading "embarrassing," terms of traverse
"is." Cottula v. Soames, 93.
terms of allegation; fraudulently; ambiguity. Great Ship Co. v. Russell, 94.
stating contract according to assumed legal effect. Taylor v. Smith, 91.
VOL. III. 3 T P.F.

AMENDMENT at Nisi Prius, "real question in controversy," what is to be considered
to be so; alteration of case at trial; omission of allegation of fraud. Cowan v.
Lasceltcs, 631.

ANIMALS, dangerous, or accustomed to injure mankind; action against owner for
injury. Line v. Taylor,TAX. Production of animal or article in Court for in-
spection of jury. Ibid. (And see cases in notis.)

APPARENT EASEMENT, evidence and law as to. Spanton v. Hinves, 52.
plans, &c. Ibid.

APPEAL from rule for new trial; special case; settling; delay. Hunt v. Allgood,

ARBITRATION, reference to, compulsory agreement for reference of future disputes;
Hatltrsley v. Hatton, 116.
a party not within such agreement, right to dismiss. Smith v. Allen, 156.
reference to; application to euforce agreement for; criminal matter. Bradford v.
Maningham, 88.

ARCHITECT, right of, to remuneration for making out quantities; building contract
not carried out. Lansdowne v. Somerville, 23C.

ARREST on mesne process; liability for, when malicious. Melia v. Neate, 757.
(See note on subject. Ibid. And add, to cases there collected, Pratt v. Gorcock,
9C.B., N.S. 710.)
on final process; trespass; arrest in wrong name; judgment recovered against now
plaintiff by a writ in wrong name; served by mistake. Kelly v. Laurence, 826.
(And see note collecting cases, p. 827.)

ARSON : setting fire to buildings and goods separate counts, all one continuous act;
right to put prosecutor to elect. R. v. Davis, 19. (And see note, p. 21.)

ASSAULT: justification. Chambers v. Miller, 203.

ASSIGNMENT OF GOODS: post-nuptial settlement; intent to delay or defraud.
Henderson v. Lloyd, 7.

ATTORNEY, liability of, to action; for improperly suing in a Superior Court instead
of in a County Court, for a small debt. Lee v. Diion, 744.
for neglecting to issue execution. Harrington v. Bums, 942.

ATTORNEY AND CLIENT: claim for costs; defence to; no benefit; improper
proceedings. Fletcher v. Winter, 138.

AUCTIONEER, application by, for interpleader, on claim by third party adverse to
employer. Best v. Heyes, 113. (And see note as to effect of C. L. P. Act,
charges of, usage as to; sale by private contract Marsh v. Jelf, 234.

AUTHORITY to raise money in name of blank acceptor. King v. Forbes, 41.
of master of ship to sign bills of lading at lower rate of freight than owner has agreed

for. Pickernefl v. Juubcrry, 217.
to deposit bills of exchange with bill broker. Herschfcld v. Broum, 219.
of partners to accept bills; nature of business; broker. Schweitzer v. Long, 687.
of partners to pledge partnership credit; bills. Leverson v. Lane, 221.
of ship's broker to enter into agreement to bind shipowner as to freight Peres r.
Alsop, 188.'

BAILIFF OF COUNTY COURT, liability of, after interpleader order. Lewis v.
Cole, 17.

BANKER, duty of, not to disclose state of customer's accounts. Foster v. Bank qj
London, 214.
right of, to retake money paid over counter by mistake. Chambers v. Miller, 202.

BANKRUPTCY, actions by assignees in; fraudulent preference. Graham v. Candy,
206; Graham v. Webb, 239.

BIGAMY, evidence on indictment for; prisoner's first and second marriages; evi-
dence of previous marriage of prisoner's first husband. R. v. Wilson, 119.
evidence of marriage. R. v. Cradock, 837.
absence for seven years. R. v. Heaton, 819.

BILL OF SALE, contract of warranty collateral to. Stuckey v. Bailey, I.
registry of description of assignor. Bellamy v. Saul, 318.

BILLS OF EXCHANGE, contract to pay by; damages. Morley v. Baker, 146.
authority to raise money on. King v. Forbes, 41.
deposit of, with broker. Herschfeld v. Brown, 219.
notice of dishonour. Hawkins v. Hill, 262.

drawing and indorsing, in name of deceased person. Ashpitel v. Bryan, 183.
payable after demand; presentment. Dodd v. Gill, 261.

BILLS OF LADING, authority of master to alter. Pickernell v. Jauberry, 217.

BOOKS OF ACCOUNT, inspection of. Fergusson v. Coombe, 87.

BROKER, notes of, when at variance; separate sales. Fisenden v. Levy, 477.
liability of, on contract, to effect insurance. Hurrell v. Bullard, 445.
authority of, as to freight. Perez v. Alsop, 188.

right of, to commission. Cousins v. Mitcheson, 236; Rucker v. Lunt, 959.
right of insurance brokers to discount by custom. Ibid.

BUILDING, contracts as to; oral evidence; extras. Franklin v. Darke, 65.
liability of employer on, to sub-contractor. Eccles v. Southern, 142.
liability of employer for materials supplied on guarantee. Smith v. Rudhull, 143.
liability of builder or employer for negligence in bad work or materials. Clothier v.
Webster, 4.

CARRIERS, liability of, for damage to goods; liquids in casks; contributory negligence
of sender in bad cask. Cox v. London tr ATorM Western Railway Co., 77.
liability of, for not sending on goods; delayed through want of moans of conveyance,

and damaged by weather. Cohen v. Gaudet, 455.
cheque post-dated, legality of. Key v. Muthias, 279. (And see note.)

COLLATERAL ISSUE, what is not so; admissibility of evidence as to any point
material to credit on the main issue. Re Dennis, 502. (And see cases in note.)
Fowkes v. Manchester Life Insurance Co., 440.

COMMISSION, liability of employer for. Green v. Reed, 226; Thompson v. Clark,
181; Topping v. Uealey, 325; Marsh v. Jelf, 234; Mason v. Clijlon, 899.

COMPARISON OF HANDWRITING in criminal cases. R. v. Aldridge, 781.
in civil cases. Roupcll v. Haws, 784.

CONSPIRACY, action on the case in the nature of. Dickson v. Combermere, 527.
law as to. (In not is, 528, 529.) Evidence in, 541, 550.

« PreviousContinue »