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REGULÆ GENERALES.

allowed to be given in evidence in reduction of damages or debt; but shall be pleaded in bar. Trinity, 1 Vict., 354.

RELEASE.

The defendant pleaded in bar a deed of release alleged to have been executed by the plaintiffs and other creditors of one Crokat, a prior indorser. The deed appeared to have been executed by the plaintiffs alone, and was in form a mere assignment by the plaintiffs to one Souter, of the debt due to them from Crokat, putting Souter in their place with regard to the remedy against Crokat on the bill; the consideration for such assignment being 2s. 6d. in the pound on the amount of the debt:-Held, that this deed did not sustain the plea. Houlditch v. Cauty, REVERSION. See COVENANT, III.

209.

ROLL.

Entering Satisfaction on-See PRACTICE, XVI.

SALE.

See AUCTIONEER-VENDOR AND PUR

CHASER.

SECURITY FOR COSTS. See COSTS, V.

SET-OFF. See Costs, III. 6.

SETTLEMENT.

Sce VOLUNTARY SETTLEMENT.

SCIRE FACIAS.

Quære, whether a sci. fa. will lie upon an interlocutory judgment. The court

refused to entertain the matter on motion. Benn v. Greatwood, 891.

SHERIFF.

Duty of.

1. A writ of capias and a rule to return it were delivered to the sheriff at the same time. The sheriff two days afterwards returned non est inventus:-The court refused to interfere. Evens v. James, 354.

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A vessel lying at Pembroke was chartered on a voyage from Cardiff to Alexandria with a cargo of coals and iron, to be shipped at Cardiff; forty running days to be allowed the merchant for loading at Cardiff and unloading at Alexandria-to commence on the 16th December. the request of the plaintiffs, the defendant consented to the coals being put on board at Pembroke instead of at Cardiff: -Held, that the days thus consumed at Pembroke after the 16th December, were to be reckoned as part of the forty lay days. Jackson v. Ġalloway, 786.

II. Admissibility of Evidence to explain the Meaning of a Charterparty.

1. By a charterparty made in London, the defendant engaged to ship on board the plaintiff's vessel at Bombay a full cargo at a certain price per ton-cotton to be calculated at fifty cubic feet per ton, and other goods according to the scale of tonnage of the East India Company. In an action of assumpsit for the freight:Held, that it was competent to the defendant to give evidence of a custom at Bombay to calculate the freight upon a measurement of the bales of cotton immediately after they had been submitted to hydraulic or other pressure, so as to reduce them to the smallest practicable bulk. Bottomley v. Forbes, 866.

2. Held also, that it was competent to the plaintiff, in order to shew the unreasonableness of the alleged custom, to give evidence in reply that the cotton had increased in bulk 15 per cent. upon the screw measurement by the time it was put on board the vessel. Ib.

SPANISH BONDS.

Quære, whether Spanish Bonds are "goods, wares, and merchandizes," within the meaning of the statute of frauds, 29 Car. 2, c. 3, s. 17. Pawle v. Gunn, 287.

0002

SPECIAL CASE.

Right to begin, where affirmative on the defendant? Franks v. Price, 714.

SPECIAL JURY.

Obtaining a rule for a special jury, after a peremptory undertaking, the cause being a proper one to be tried by a special jury, is not such a default as is contemplated by the statute 14 Geo. 2, c. 17. Twysden v. Stulz, 434.

STAMP.

I. On Bill of Exchange.

To a count on a bill of exchange (against the acceptor), the defendant pleaded that the bill was not duly stamped or marked with any proper stamp or mark denoting that the lawful, requisite, and proper rate or duty chargeable or charged thereon had been or was duly stamped, marked, or impressed thereon :-Held, bad on special demurrer, inasmuch as it was left in doubt whether the bill was altogether unstamped, or stamped with a stamp of a higher or lower value than required by law. Haward v. Smith, 438.

II. On Agreement.

"I have received the sum of 20%., which I have borrowed of you, and I have to be accountable for the said sum, with legal interest :"-Held, that this was not a promissory note, but an agreement, and therefore admissible in evidence under a common agreement stamp. Horne v. Redfearn, 260.

III. On Lease.

The defendant became the purchaser at an auction of a lot described as "the herbage of Upper Townshend's Close, Lower Townshend's Close, and the Priory," at the price of 457.; by the conditions of sale it was agreed that a deposit of ten per cent. should be paid, and a bill given for the residue, and that the purchaser should be entitled to possession of the lot until the 29th September. The contract of purchase at the foot of the conditions, signed by the defendant, was stamped with a 17. stamp:-Held, that this was a lease of hereditaments granted in consideration of a sum of money by way of premium under 50%, without any

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The plaintiff, a stock-broker, at the defendant's request, made time bargains for him in foreign stocks, and in the result was compelled, according to the usage of the Stock Exchange, to pay the differences. Before the settling day, the defendant sent to the plaintiff to inform him that he was unable to meet his engagements, and therefore was compelled to absent himself; and at a subsequent time he promised to pay the amount. The jury having found a verdict for the plaintiff, the court refused to disturb it— holding, that the evidence warranted an inference that the payment was made at the defendant's request. Pawle v. Gunn,

286.

SURETY.

1. If any material part of the transaction between a creditor and his debtor is, with the knowledge or assent of the creditor, misrepresented to a surety, the misrepresentation being such, that, but for the same having taken place, either the suretyship would not have been entered into at all, or, being entered into, the extent of the surety's liability might be thereby increased, the security so given is void at law, on the ground of frand. Stone v. Compton, 846.

2. The plaintiffs agreed to lend 2,6001.

to C. & D. upon the security of a policy of insurance, a mortgage of certain leaseholds, and the joint and several promissory note of the defendant and one E. for 2,600, the plaintiffs deducting thereout a debt of 600l. then due to them from C. on his private account. A deed prepared in conformity with this agreement recited, amongst other things, that the entire interest in the policy was available for the purposes of the security, and that the private debt of C. had been paid to the plaintiffs. The nature of the agreement between the plaintiffs and C. & D. was not communicated to the defendant, but the recitals of the deed were read over in his presence when he attended at the office of the plaintiff's attornies for the purpose of signing the note, and the note bore an indorsement identifying the sum thereby secured with the sum mentioned in the deed-Held, that this untrue representation thus made to the defendant before he signed the note, that the private debt of C. had been paid, avoided the Ib.

note.

TRESPASS.

See CHURCHWARDENS.

TROVER.

One W., the master of a vessel belonging to the defendants, on the eve of a voyage, in consideration of an advance of 501., by a memorandum dated the 23rd December, 1836, "made over to them as their property until the sum advanced should be repaid, his chronometer and all his nautical instruments then on board the vessel, they allowing him the use of the same for the voyage." The chronometer was at this time in the hands of the makers for safe custody and regulation; the transfer or charge was not communicated to them. W. used the chronometer for the voyage, and returned it to the makers as before, and afterwards pledged it to the plaintiff as security for a debt:Held, upon an issue under the interpleader act to try the property in the chronometer, that it vested in the defendants under the agreement of the 23rd December, 1836, until the advance was repaid. Reeves v. Capper, 877.

TRUSTEE.

See ATTORNEY, IV.

UNITY OF POSSESSION. See LEASE, I. 1.

VARIANCE.

1. By articles of agreement between A. and B., the former covenanted, that, in consideration of the rents thereinafter covenanted to be paid, he would, when a certain fence and drains should have been completed, and any of the messuages thereinafter covenanted to be built should have been built and covered in, &c., by indentures of lease, demise and lease unto B. or his nominee all such messuages respectively as should be so built upon certain ground particularly described, and specified in a plan annexed to the agreement; with a reservation to A. of a right of way over the streets-habendum to B. for eighty years, on payment of certain annual sums for the first six years, and for the remaining seventy-four the yearly rent of 400l. and B. covenanted, amongst other things, to erect a wall of certain dimensions along the west side of the land: and it was further agreed, that, until the whole of the messuages should be completed, and the agreement in all things fulfilled, two of the houses should remain unleased with power to A. to re-enter upon any undemised part of the premises, for non-performance of any of the before mentioned covenants. B. took possession under this agreement, and paid rent.

The third plea stated the agreement as a covenant to demise the whole of the land therein described :-Held, a fatal variance. Alexander v. Bonnin, 611.

VENDOR AND PURCHASER. I. Material Misdescription in Particulars.

Certain property was offered for sale by public auction, in lots. The particulars, in describing lot 12, stated that the purchaser of that lot would be entitled to a right of carriage and foot way thirteen feet wide over lot 13, as shewn upon a plan annexed to the particulars, bearing and paying one moiety of the expense of keeping the road in repair. Lot 13 was described as "a first-rate building plot," with a frontage to a place called the Crescent sweep; and it was stated that that lot would include the ground forming part

928 VENDOR AND PURCHASER.

of the Crescent sweep comprised within the boundary of lot 13 by a line marked upon the plan, "subject for ever hereafter to the same rights of way and passage, and other rights and easements over the same, as are now enjoyed under the existing leases of the Crescent houses." The particulars of lot 7 described the two Crescent houses comprised in that lot as let on lease for a certain term, and stated that the lease might be seen at the office of the vendor's attorney, and would be produced at the sale. The plaintiff attended and bid at the sale; lots 12 & 13 were severally knocked down to him; and he signed a single contract of purchase for the two at the foot of one of the printed particulars, and paid a deposit. The plaintiff afterwards discovered, that, in the leases of the Crescent houses, there was reserved to the occupiers a right of way over lot 13, on foot and for the conveyance of gravel, manure, &c., from their gardens to the road. This right of way did not appear upon the plan :-Held, that, inasmuch as there was no sufficient disclosure of this right of way to enable a bidder by the exercise of ordinary vigilance to discover that such right existed, but, on the contrary, the plan being calculated to mislead, the misdescription, however unintentional, was such as to justify the plaintiff in refusing to accept either lot (the two being comprised in one contract, and the purchase of the one appearing to have induced the purchase of the other), but was entitled to recover back with interest the deposit paid to the auctioneer; and this notwithstanding a condition annexed to the particulars of sale—that, if any mistake were made in the description of the premises, or any other error should appear in the particulars, such mistake or error should not annul the sale, but a compensation or equivalent should be given or taken, as the case might require. Dykes v. Blake, 320.

II. Contract, where voidable.

By the 17 Geo. 3, c. 50, s. 8, the vendor at an auction is impowered to make it a condition of sale that the purchaser shall pay the auction-duty in addition to the purchase-money; and it is declared, that, upon his neglect or refusal to pay the same, the bidding "shall be null and void to all intents and purposes":

VOLUNTARY SETTLEMENT.

-Held, that the contract is not, by reason of such neglect or refusal, absolutely void, but voidable only, at the option of the vendor. Malins v. Freeman, 187.

VENUE.

Changing.

1. In an action by husband and wife for an assault on the latter, the venue was originally laid in Middlesex, but had been changed at the defendants' instance to Yorkshire. The court refused, upon a suggestion, that, since the commencement of the action, the husband had been called to the bar, to restore the venue to Middlesex. Newton v. Harland, 186.

2. The court refused to discharge a rule for changing the venue from London to Glamorganshire, obtained upon the usual affidavit, although it was sworn that the cause of action arose partly in that county and partly in Ireland. Fisher v. Waring, 377.

3. The court refused to direct the jury process on the trial at bar of a writ of right for the recovery of lands in Buckinghamshire, to be awarded to the sheriff of Middlesex, upon a suggestion that the tenant was possessed of large property and great popularity and influence in the former county, and the demandants poor and obscure persons resident in Wales. Davies, Dem., Lowndes, Ten., 435.

VIEW.

In an action on a contract for building a chapel, the court refused to grant the plaintiff a rule for a view. Newham v. Taite, 574.

VOLUNTARY SETTLEMENT.

One C., who had agreed to purchase certain land of one H., contracted to convey the same to one W., who transferred his interest in the contract to Medley. Medley, in 1818, by settlement made on his marriage, covenanted, that, in case C. should be enabled to convey, he would pay C. 150l., and procure the land to be conveyed to the trustees; with a proviso, that, if C. should not be enabled to convey, then no obligation or liability at law or in equity should attach on Medley to procure or to endeavour to procure

VOLUNTARY SETTLEMENT.

a conveyance from any other person, or to pay the value of the same to the trustees by way of satisfaction for the same, nor should Medley in such case be precluded or disabled from purchasing the same for his own benefit. After the marriage had taken effect, viz. in June, 1818, Medley obtained a conveyance of the land from the trustees of H., the owner; and in February, 1819, by settlement, reciting the agreement to purchase, that C. had not been enabled to convey, that Medley had purchased of the owners, and that he was desirous to convey the land to the uses of his marriage settlement, conveyed the same to the trustees of such settlement accordingly-Held, that, Medley, being under no obligation either in law or equity to transfer the land in question, which he had, in consequence of the inability of C. to convey it, purchased of the trustees of H., without the intervention of C., such settlement, being made after marriage, was purely voluntary, and void as against a bonâ fide purchaser for a valuable consideration. Doe d. Barnes v. Francis Roe, 525.

2. On the transfer of a mortgage for 10,000, with an additional advance of 4,000l., it was proved that the 10,000/ were paid in bank-notes by the transferree to the original mortgagee by the direction and in the presence of the mortgagor, and the 4,000l. by a cheque to the mortgagor, as to which there was no proof that it was honoured:-Held, that the payment of the 10,000l. was a sufficient consideration as against one claiming under a voluntary settlement. Ib. WAGER.

See PLEADING, IV.

WARRANT OF ATTORNEY. I. Attestation, where Party a Prisoner.

1. A warrant of attorney was executed by a defendant in custody under mesne process, in the presence of a party whom he introduced as his attorney, and who as such attested his execution of the instrument, but who afterwards turned out to be uncertificated. Upon motion to set aside the judgment and execution issued upon this warrant of attorney:-Held, that the defendant was not under the circumstances entitled to relief-at least,

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WATERCOURSE.

Case for Obstruction of.

In an action for the obstruction of a watercourse, it appeared that the plaintiff had three years ago slightly altered the course of the stream, at a point between its exit from the defendant's land, where the obstruction took place, and its entrance upon his own land; and that, more than twenty years ago the stream had for some time ceased to flow to the plaintiff's land, and had resumed its ancient course only nineteen years before the commencement of the action:Held, that the plaintiff's right was not thereby destroyed. Hall v. Swift, 167.

WITNESS.

See EVIDENCE.

WRIT OF REBELLION.

1. The commissioners named in, and charged with the execution of a writ of rebellion, have a right, at their discretion, to require the assistance of any of the liege subjects of the crown to aid and assist in the execution of the writ. Miller v. Knox, 1.

2. Such persons have such right, upon reasonable apprehension of resistance to the execution of the writ, although no actual resistance has taken place. Ib.

3. Such persons have such right as against persons appointed and acting as constables in Ireland under the statute

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