INDEX. ABORTIVE SALE OF REAL ESTATE. I. was not entitled to recover damages 2. Concessum, on the authority of ACCEPTANCE. Of goods. See Statute of Frauds, V. VI. VII. Real estate had been devised to the 1. Held, that the plaintiff, although ACCOMPLICE. I. The rule that the evidence of an II. On the trial of an information for | Against justices. bribery at an election for members of Parliament for a borough, filed by The Attorney General by the direction of the House of Commons, the persons charged in the information to have been bribed by the defendant were examined as witnesses. It appeared from their evidence that on the day of the election the witnesses came to the front of the house which stood between and opened into two parallel streets of the borough, and went in succession into the house, and into a back room in which the defendant was seated; after an interview with the defendant each of them passed into another room, in which another person was seated, from whom each received the sums mentioned in the information; they then passed into the other street, and so to the hustings, and voted. Smble, that these witnesses, if accomplices of the defendant at all, were not accomplices in such a sense as to require corroboration, and also that here was corroboration, if necessary. Id. 312. ACKNOWLEDGMENT. ACT, LOCAL AND PERSON AL. ACT OF SETTLEMENT. The Act of Settlement, 12 & 13 W. 3. c. 2. s. 3., which enacts that no pardon under the Great Seal shall be pleadable in bar to an impeachment by the Commons in Parliament, renders a pardon under the Great Seal wholly inoperative to prevent impeachment by the House of Commons, and so get rid of the judgment of the house of Lords; for that purpose a subsequent pardon must be granted by the Crown: per Cockburn, C. J., Crompton and Hill JJ.; dubitante Blackburn J. The Queen v. Boyes, 311. I. Declaration against justices of the peace alleged that the plaintiff was rated to a church rate, which was demanded on the 8th September, 1857; that the plaintiff was summoned for non-payment thereof on the 5th May 1859; that at the hearing, on the 12th May 1859, the plaintiff gave evidence that the rate had been demanded of him and the matter of complaint had arisen more than six months before the complaint, and contended that, by stat. 11 & 12 Vict. c. 43. s. 11., the defendants had no jurisdiction: yet the defendants made an order for payment of the rate, which order had been quashed. Plea, that upon the hearing of the complaint it was proved that, besides the demand of the rate in the declaration mentioned, the same was again demanded on the 25th March, 1859, and the complaint was laid within six calendar months from the time of that demand. Upon demurrer, held, that it was within the duty of the defendants, as justices, to determine the question whether a complaint was made within the time limited; and therefore, by sect. I of stat. 11 & 12 Vict. c. 44., the action was not maintainable without proof of malice and want of reasonable and probable cause. Sommerville v. Mirehouse_and another, 652. II. Declaration against justices of the peace alleged that the plaintiffs were rated to a church rate, the validity of which rate was disputed by them; that they were summoned for non payment of the rate; that at the hearing before the defendants the plaintiffs, in good faith disputing the validity of the rate, gave the defendants notice thereof: yet the defendants, not acting bonâ fide in the belief that they were acting in conformity to law, and when they well knew that they had not jurisdiction to proceed, made an order for payment of the rate, which order was afterwards quashed, and issued their warrant of distress, by virtue of which the goods of the plaintiffs were distrained. Plea, as to the distraining of the goods of the plaintiffs; that the warrant was issued on the application of the churchwardens, and executed by their direction as well as by the command of the defendants; and that the plaintiff's afterwards recovered judgment in replevin against the churchwardens. Upon demurrer, held, 1. That the allegations in the declaration sufficiently shewed that the defendants knew that the validity of the rate was bonâ fide disputed, and that proper notice thereof was given to them; and therefore, by the proviso to sect. 7 of stat. 53 G. 3. c. 127., they acted without jurisdiction in making the order and warrant. 2. The action was therefore, by sect. 2 of stat. 11 & 12 Vict. c. 44., main. tainable without proof of malice and want of reasonable and probable cause. 3. Semble, per Blackburn J. If the defendants acted erroneously under the belief that the validity of the rate was not bonâ fide disputed, the action would be within sect. 1 of stat. 11 & 12 Vict. c. 44. 4. The proviso in sect. 7 of stat. 53 G. 3. c. 127., which takes away the jurisdiction of justices where the validity of the rate is bonâ fide disputed, extends to Quakers. Pease and others v. Chaytor and another, 658. On judgment. I. Stat. 43 G. 3. c. 46. s. 4., by which "in all actions upon any judg ment recovered the plaintiff shall not recover costs of suit" unless by order of the Court or a Judge, does not apply where a count for another cause of action is joined with a count upon a judgment. Jackson v. Everett, 857. II. Action upon a judgment and for use and occupation. To the count on the judgment the defendant pleaded nul tiel record, and to the count for use and occupation brought money into Court, which the plaintiff accepted in satisfaction. Held, that the plaintiff, having succeeded on both causes of action, was entitled to costs on both without an order of the Court or a Judge. Id. AGENCY, PROOF OF. In an action against a railway Company to recover a piece of superfluous land which the Company were bound to dispose of within ten years after it had been acquired by them, the plaintiff proposed to shew that, thirteen years after that time, the Company put the land up for sale by public auction as superfluous land. In order to prove this, the auctioneer was called as a witness, who deposed that he had received his instructions for the sale from one of the directors of the Com. pany, and also from a person who had acted as their solicitor on former sales of land; held, that this was not even primâ facie proof that the sale was by the authority of the Company; although more than twelve months had elapsed between the sale and the trial. Moody v. The London, Brighton and South Coast Railway Company, 290. AGENT. See Principal and Agent and House Agent. AGREEMENT. I. By agreement, not under seal, plaintiff agreed to let, and defendant to hire, certain premises for seven years; and it was further agreed that a good and sufficient lease, embodying the terms of the agreement, should be prepared at the joint expence of the parties. In an action for not accepting a lease: held that, though the instrument was void as a lease by stat. 8 & 9 Vict c. 106. s. 3., it was good as an agreement. Bond v. Rosling, 371. II. Declaration stated that, in consideration of an intended marriage between the plaintiff and the daughter of W. G., W. T., the father of the plaintiff, and W. G. verbally promised to give their children marriage portions; and that after the marriage W. G. and W. T., as a mode of giving effect to their said verbal promises, entered into a written agreement, by which it was mutually agreed that they should pay the sums of 2001. and 1007. respectively to the plaintiff, and that the plaintiff should have full power to sue for the same in any Court of law or equity. Breach: non-payment of the 2001. by W. G., or by the defendant, his executor: Held, on demurrer, that the action was not maintainable, notwithstanding the near relationship of the plaintiff to the party from whom the consideration moved. Tweddle v. Atkinson, Executor, 393. ALEHOUSE LICENCE. Where a borough named in Schedule A. to stat. 5 & 6 W. 4. c. 76. has a separate commission of the peace, but no separate Court of Quarter Sessions, the county justices have exclusive jurisdiction to grant alehouse licences within the borough under stat. 9 G. 4. c. 61. Candlish and another v. Simpson and another, 357. AMENDMENT. After the plaintiff, in a cause in which the defendant appeared by attorney, had signed judgment, proceedings in error were taken by the defendant, on the ground that, being an infant, he ought to have appeared by guardian: held, that the Court had no power, either under The Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76.), sect. 222, or otherwise, to amend the proceedings, by alleging an appearance by guardian; but that they had power to set them aside, and order the defendant to appear by guardian. Carr v. Cooper, 230. APPEAL. See Quarter Sessions, Appeal to. APPEARANCE BY GUARDIAN. APPEARANCE BY GUARDIAN. After the plaintiff, in a cause in which the defendant appeared by attorney, had signed judgment, proceedings in error were taken by the defendant, on the ground that, being an infant, he ought to have appeared by guardian: held, that the Court had no power either under The Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76.), sect. 222, or otherwise, to amend the proceedings by alleging an appearance by guardian; but that they had power to set them aside, and order the defendant to appear by guardian. Carr v. Cooper, 230. ARTICLES OF CLERKSHIP. The applicant had been articled as clerk to his father and served the five years required by law without the applicant's knowledge, as he alleged, that the articles were not stamped. The affidavit of the father stated that, having before the articles been subject to much pecuniary loss and pressing expenses, and a dimunition of professional income on account of the changes in the law and personal and family affliction, he was at the time of the articles without the means to pay the stamp duty thereon; and that he had not articled the applicant speculatively, but with the intention of ultimately stamping and enrolling the articles. The Lords of the Treasury having, under stat. 19 & 20 Vict. c. 81. s. 3., directed the Commissioners of Inland Revenue to stamp the articles upon payment of the duty and penalty, and the articles having been stamped accordingly: Held, by Cockburn C. J., Wightman and Mellor JJ., Crompton J. dissentiente, that they might be enrolled, and the service under them be computed from the date of their execution. Ex parte Herbert, 825. ASSAULT. Where, under 9 G. 4. c. 31. ss. 2729., a complaint of assault or battery has been made to two justices of the peace, who dismiss the complaint and give the party a certificate accordingly, the certificate may be pleaded in bar to an indictment, founded on the same facts, charging assault and battery, accompanied by malicious cutting and wounding so as to cause grievous or actual bodily harm. The Queen, on the prosecution of Finney, v. Elrington and another, 688. ATLANTIC TELEGRAPH. See Marine Insurance, II. ATTORNEY GENERAL. See Nolle Prosequi. AVERAGE. I. Where goods are insured by a policy of marine insurance in the ordinary form, the expression “warranted free from particular average" is not confined to losses arising from injury to, or deterioration of, the goods themselves; but is equivalent to a stipulation against total loss and general average only; and, consequently, includes expences incurred in relation to the goods. The Great Indian Peninsular Railway Company v. Saunders, 41. II. A quantity of iron rails was shipped to be carried to a certain place, for a sum to be paid here, ship lost or not lost. The shippers insured them by a policy in the ordinary form "warranted free from particular average, unless the ship be stranded, sunk or burnt." The ship was neither sunk, stranded nor burnt; but there was a constructive total loss of her by perils of the sea. The rails were saved, and sent on in other vessels to their destination, for which the insured was compelled to pay freight to an amount not exceeding the value of the rails. Held, that this freight was not recoverable under the policy. Id. BANKRUPTCY. A party who had deposited a lease for years with the plaintiff as security for a debt, and given him a memorandum by way of equitable mortgage, became bankrupt in 1847, but was allowed to remain in possession and receive the rents until his death in 1858. In 1859 the Court of Bankruptcy, on application of the plaintiff, made an order for the sale of the lease, or, in the event of a sale being deemed not advisable, that it should be assigned to the plaintiff. The sum bid for the property being insufficient to satisfy the plaintiff's claim, it was assigned to him in 1860 by the official assignee, and a creditors' assignee appointed in lieu of the original creditors' assignee, who had refused to concur in the sale. In ejectment by the plaintiff against the personal representative of the bankrupt, held : 1. That the assigning the lease to the plaintiff was an acceptance of it by the assignees. 2. That it was a question for the jury whether they had accepted it within a reasonable time. Mackley v. Hannah Pattenden, 178. BASTARDY. The mother of a bastard child applied to a justice, within twelve months after the child's birth, for a summons against P., the alleged father. The summons was issued by the justice, but could not be served, P. having absented himself. On P.'s return, which was more than twelve months after the child's birth, and before which time the justice who had issued the first summons had died, the mother obtained from another justice a second summons against P.; and, upon its coming on for hearing, the justices in petty session made an order adjudging P. to be the putative father, and ordering him to pay a certain sum by way of maintenance. Held, that the order was bad, inasmuch as, by stat. 7 & 8 Vict. c. 101. s. 2., the jurisdiction to make the order is |