AN INDEX. OF THE PRINCIPAL MATTERS. I. ABATEMENT. See JOINDER IN ACTION, No. 3. ACCORD AND SATISFACTION. "A CCEPTANCE of a lefs cannot be 230 ACTION ON THE CASE. charged in full fatisfaction and discharge ACTION ON THE CASE. 294 1. An action on the cafe for debauching ་ The ftat. 39 G. 3. c. 69. S. 184. directs that the West India Dock Company fhall fue in the name of their treasurer in all actions by or on behalf of the Company, and that he fhall be fued for the recovery of any claim or demand upon, or of any damages occafioned by the Company; and . 185., after extending the protection of the ftat. 24 G. 2. c. 44. for privileging juftices of peace in actions brought against them, as fuch, to the lord mayor and aldermen of London acting under this act beyond the limits of the city; directs that " no ac. tion fhall be commenced against any perfon or perfons for any thing done in purluance or under colour of this act, until after 14 days' notice in writing, or after tender of amends," &c.: held that the treasurer of the company is a person within the faid claufe; and being fued for an act done by the Company which induced an injury to the plaintiffs, was entitled to fuch notice before the action brought. The notice is neceffary in actions for trefpaffes or torts; but qu. Whether in affumpfit? Wallace. Smith, Treasurer of the Weft India Dock Company, E. 44 G. 3. AFFIDAVITS. 115 Adavits in fupport of or in answer to a rule for fetting afide an award made rule of court under the flat. 9 & 10 W. 3. c. 15., I,. there being no action previously brought, nor any cause in court, need not be entitled. Brainbridge v. Houlton, E. 44 G. 3. 21 AGENT. See PRINCIPAL AND AGENT, PRIZE, No. 1. AGREEMENT. See PASSAGE-MONEY. 1. For the meaning of the word Agreement, as it occurs in the ftatute of frauds, fee Frauds, ftatute of. 2. The toleration act, 1 W. & M. c. 18. provides (/. 18.) that any perfon malicioufly diflurbing any diffenting congregation under that act, on proof before a juftice of peace, fhall find fureties in 50%, or in default be committed to prifon till the next feffions, and on convicton forfeit 20l. to the Crown. To an action against magiftrates for trefpafs and falfe imprisonment, they pleaded a charge preferred before them for an offence against that clause, and a commitment for want of fureties under it to the next feffions; and that before the next feffions it was agreed between the profecutor and the now plaintiff, with the confent of the committing magiftrates, (the now defendants,) that the profecution fhould be dropped, and the plaintiff be discharged at the feffions for want of profecution; that the plaintiff was accordingly then and there fo difcharged in full fatisfaction and discharge of the affault and imprisonment held this was no legal fatisfaction; for either the agreement was illegal, as ftifling a profecution for a public misdemeanor, and thereby impeding the courfe of juftice; or the fatis. faction, if any, was moving from the profecutor only, and not from the juftices; their authority over the profecution being at an end after the commitment of the plaintiff, and their confent afterwards to the profecutor dropping the profecution being a mere nullity, and no fatisfaction for a prior injury, if any, received by the plaintiff from their act. Edgecombe v. Rodd and Others, T. 44 G. 3. 291 3. A carrier by water contracting to carry goods for hire impliedly promises that the veffel fhall be tight and fit for the purpofe, and is anfwerable for damage arifing from leakage. And this, though he had given notice" that he would not be anfwerable for any damage unless occafioned on of their character as common carriers, but only by a negligent discharge of their duty as fuch. Nor could he recover even the 5, as by the terms of the notice the carriers ftipulated not to be anfwerable at all for goods above 51. value, unless paid for accordingly. Ni cholson v. Willan, M. 45 G. 3. 507 APPRENTICE. See STAMPS, No. 1. The Court will not, at the prayer of the mafter, grant a habeas corpus to bring up an apprentice impreffed, he being willingly to enter into the king's fervice. Ex parte Landflown, E. 44 G. 3. 38 2. The captain of a ship of war detaining an apprentice who had been impreffed, aftern otice by fuch apprentice, is liable in an action by the mafter to recover wages for the fervice of fuch apprentice. Eades v. Vandeput, M. 25 G. 3. 39. n. cafioned by want of ordinary care in the maller or crew of the vefiel, in which cafe he would pay 10l. per cent, upon fuch damage, fo as the whole did not exceed the value of the veffel and freight." For a lofs happening by a perfonal default of the carrier himfelf (fuch as the not providing a fufficient veffel) is not within the fcope of fuch notice; which was meant to exempt the carrier from loffes by accident or chance, &c. even if it were competent to a common carrier to exempt himself by a fpecial acceptance. from the refponfibility caft upon him by the common law for a reafonable reward to make good all loffes not arifing from the act of God, or the king's enemies. Lyon v. Mells, T. 44 G. 3. 428 4. A. agreed, in confideration of 10l, to let a houfn to B., which A. was to repair and execute a leafe of within ten days, but B. was to have immediate poffition, and in confideration of the aforelaid was to execute a counterpart, and pay the rent. B. took poffeffion, and paid the 10. immediately; but 4. neglected to execute the leafe and make the repairs beyond the period of the ten days, notwithstanding which, B. ftill continued in poffeffion held that B. could not, by quitting the house for the default of A., refcind the contract and recover back the rol. in an action for money had and received, but could only declare for a. breach of the fpecial contract: for a contract cannot be rescinded by one party for the default of the other, unless both can be put in ftatu quo as before the contract; and here B. had an intermediate poffeffion of the premises under the agreement. Hunt v. Silk, M. 45 G. 3. 449 5. Where one delivered goods of above 51. value to common carriers to carry by the mail, paying no extra price; and by a public notice which had before reach. ed the owner, the carriers had declared they would not be accountable for any package above the value of 5l., unless infured and paid for accordingly: held, that the goods having been fent by a different carriage and loft, the owner could not recover the value against the carriers; for the lofs happened by no tortious converfiòn, nor by a renunciati ASSETS. See. EXECUTOR, No. 1. ASSUMPSIT, See AWARD, No. 1. BILLS OF ExTOLL, No. 1. No person can upon the statute of frauds be charged upon any promife to pay the 'debt of another, unless the agreement upon which the action is brought, or fome note or memorandum thereof, be in writing; by which word agreement mult be understood the confideration for the promife as well as the promife itfelf. And therefore where one promifed in writing to pay the debt of a third person, without ftating on what confideration, it was holden that parol evidence of the confideration was inadmisible by the ftatute of frauds; and confequently fuch promise appearing to be without confideration upon the face of the written engagement, it was nudum pactum and gave no cause of action. Wain v. Walters, E. 44 G. 3. 10 z. The plaintiff contracted to carry the defendant, his family, and luggage from Demerary to Flushing; and in the course Ee 4 of of the voyage, within four days fail of Flubing, the fhip was captured by an English hip of war, and brought into England, and the fhip and cargolibelled for prize in the Court of Admiralty, and the cargo condemned, and proceedings ftill pending against the ship; but the defendant, and his family were liberated, and their luggage in f &t restored to their poffeffion. Held that, however the queftion might be as to the plaintiff's right to recover paffage money upon an implied affumpfit pro rata itineris if the ship were restored, yet pending the proceedings against the fhip as prize in the Admiralty Court, no fuch action could be maintained: for non conitat, but that the hip might be condemned and the freight decreed to the captors. Mulloy v. Backer, T. 44 G. 3. 2. 316 3. A. agreed in confideration of 10l. to let. a houfe to B., which A. was to repair and execute a leafe of within ten days, but B. was to have immediate poffeffion, and in confideration of the aforefaid was to execute a counterpart, and pay the rent. B. tock poffeffion and paid the 10l. immediately, but A. negle&ed to execute the leafe and make the repairs beyond the period of the ten days, notwithstanding which B. ftill continued in poffeffion: held that B. could not, by quitting the houfe for the default of A., refcind the contract and recover back the 10. in an action for money had and received, but could only declare for a breach of the special contract: for a contract cannot be refcinded by one party for the default of the other, unless both can be put in ftatu quo as before the contract : and here B. had an intermediate poffef. fion of the premifes under the agreement. Hunt v. Silk, M. 45 G. 3. ATTACHMENT. See AWARD, No. 2. AWARD. See AFFIDAVIT, No. 1. 449 1. Where a verdict is taken for a certain fum, fubject to the award of an arbritra tor, to whom all matters in difference are referred by a rule of nifi prius, he can AWARD. not award a greater fum than that for which the verdict was taken; and if he do, no affumpfit by implication will arite to pay even to the extent of the verdict fo taken. Bonner v. Charlton, E. 44 G. 3. 139 Where parties by an indorsement in general terms on the bonds of fubmiffion to abritration agree that the time for making the award fhall be enlarged, fuch agreement virtually includes all the terms of the original tubmission to which it has reference, amongst others, that the fubmiffion for fuch enlarged time fhall be made a rule of Court: and confequently the party is liable to an attachment for non-performance of an award made within fach enlarged time, under the ftat. 9 & 10 W. 3. c. 15, Evans v. Thomsen, E. 44 G. 3. 189 4. declared in covenant against B. and her husband, for that B., before her intermarriage, covenanted with A. by decd to leave certain accounts in difference btween them to arbitration, and to abide and perform the award, provided it were made during their lives. And A. protesting that B. had not, before her intermarriage, performed her part of the covenant, averred that after making the indenture and the intermarriage of the defendants, the arbitrator awarded B. to pay A. a certain fum; and then alleged a breach for non-payment of fuch fum. After verdict, on non eft factum pleaded; held that upon this declaration it must be taken that B. intermarried after the fubmiffion and before the award made; in which cafe, although the plaintiff could not recover upon the breach affigned for non-payment of the fum awarded, because the marriage was a countermand to the authority of the arbitrator; yet as by the marriage itfelf B. had by her own act put it out of her power to perform the award, the covenant to abide the award was broken; and therefore judgment could not be arrested on the ground that the marriage was a revocation of the arbitrator's authority, and that fo the plaintiff could not recover as for a breach by nonperformance of the award. Charnley v. Winstanley and his Wife, T. 44 G. 3. 266 BANK. 1. Where the plaintiff gave the defendant in a foreign country, where both were refident, a bill of exchange drawn by the defendant upon a perfon in Eng land, which bill was afterwards protefted here for non-acceptance, and the defendant afterwards, while ftill refident abroad, became bankrupt there, and obtained a certificate of difcharge by the law of that ftate: held that fuch.certificate was a bar to an action here upon an implied affumpfit to pay the amount of the bill in confequence of fuch nonacceptance in England. Potter V. Brown, E. 44 G. 3. time; the defendants, at the time of fuch giving up of the goods by the bankrupts, holding poffeffion of the goods upon a claim of right to ftop them in tranfitu. Dixon and Others, Afignees of Battier and Son, Bankrupts, v. Baldwin and Another, E. 44 G. 3. 175 3. An order of the Lord Chancellor, made under the ftat. 5 G. 2. c. 30., upon the petition of creditors, for removing one of several affignees of a bankrupt's eftate, not followed up by any re-affignment or release of fuch affignee to the remaining affignees, nor by any new affignment of the commiffioners under the Lord Chancellor's further order, does not operate to devest the legal estate out of fuch removed affignee and confequently he ought to join in an action of trover brought by the affignees for a fhip belonging to the bankrupt's eftate. Bloxam and Others, Afignees of Ward, a Bankrupt, v. Hubbard, T. 44 G. 3. 4. 124 2. Where A. and B., traders living in London, were in the course of ordering goods of the defendants, cotton manufacturers at Manchester, to be fent to M. and Co. at Hull, for the purpofe of being afterwards fent to the correfpondents of A. and B. at Hamburgh; and on the 31st of March A. and B. fent orders to the defendants for certain goods to be fent to M. and Co. at Hull, to be shipped for Hamburgh as ufual: held that as between buyer and feller the right of the defendants to stop as in tranfitu was at an end when the goods came to the poffeffion of M. and Co. at Hull; for. they were for this purpose the appointed agents of the vendees, and received orders from them as to the ulterior deftination of the goods; and the goods, after their arrival at Hull, were to receive a new direction from the vendees. But it was competent for A. and B., who became infolvent fome time in July, but committed no act of bankruptcy till the 26th of September, to agree bonâ fide, and not from motives of voluntary and undue preference, to give up the goods to the defendants in the latter end of July. And held that the circumftances of the bankrupts' having called a meeting of their creditors, and having taken legal advice, and being encouraged by the refult of fuch meeting and advice to give up the goods, was evidence for the jury to find that the goods were given up bonâ fide, and not from any motive of voluntary and undue preference to the defendants; though done by the bankrupts in a fi tuation of impending bankruptcy at the 407 5. The fhip register acts do not apply to BARON AND FEME. ib. BILLS OF EXCHANGE. 1. Where the plaintiff gave the defendant, in a foreign country, where both were refident, a bill of exchange drawn by the defendant upon a perfon in England, which bill was afterwards protested here for non-acceptance, and the defendant afterwards, while still refident abroad, became bankrupt there, and obtained |