character and conduct of the persons who are chiefly employed by the county as printers and stationers are involved;" and concluded, "Under the circumstances I have stated, it will be seen that I had no alternative but to adopt the course I have taken, rather than submit to what appears to have been an attempt to extort a considerable sum from the county by misrepresentation." The Court of Queen's Bench held that the occasion was privileged, and that it was for the judge to decide that question; that there was evidence for the jury as to express malice, from the language of the letter, and that the judge could not, therefore, on that ground, either nonsuit or direct a verdict for the plaintiffs.

14. BROWNE V. EMERSON. 17 Com. B. 361.

Practice-Compulsory Reference-Power of the Judge to refer "Matters of Account," under the 3rd sect. of the Common Law Procedure Act, 1854.

This was an action to recover 9547. 9s. 8d. The declaration contained the common indebitatus counts; and the pleas were, never indebted, payment, and set-off. The items were very numerous, and Cresswell, J., on an application under the 3rd section of the Common Law Procedure Act, 1854, decided that it was not competent to him to refer the whole matter in dispute, as some of the items of the account were disputed.

The Court of Common Pleas granted a rule compulsorily to refer the account to arbitration, holding that Mr. Justice Cresswell's view of the case was erroneous.

"The power to act," says Chief Justice Jervis, "is given by the 3rd section, where the matter in dispute consists wholly or in part of mere matters of account, which cannot conveniently be tried in the ordinary way,' and would seem to attach in every case where part only of the matter in dispute is mere account, if not limited by the subsequent words of the section, that such matter, either wholly or in part, be referred.'

"Having regard to the words thus used in different parts of the section, it may mean, that, where the matter in dispute consists wholly of matters of mere account, the whole may be referred; and that where it consists in part of matters of mere account, such part only may be referred; or it may mean, that, where the matter in dispute consists, either wholly or in part, of matters of mere account, the compulsory reference may be either of the whole matter in dispute, or of part only of the matter in dispute, as the Court or judge may think fit. The former seems to be the construction which was put upon the section by my brother Cresswell. The latter, in our opinion, is

the true construction. The former construction will make this part of the statute almost nugatory. The appointment of a compulsory referee, whose sole duty will be the addition of undisputed items, will be an unproductive expense; and this provision of the statute, which was supposed to be of great importance, will become a dead letter. But there are considerations arising from the section itself, and from other sections, which satisfy us that the latter is the true construction. Where the matter in dispute consists wholly or in part of matters of mere account, &c., the Court or a judge may decide such a matter that is, the matter in dispute-in a summary manner. The words 'wholly or in part' do not occur a second time in this branch of the section, to limit the authority of the Court: on the contrary, they are studiously left out; and the matter in dispute—that is, the whole matter-may be decided in a summary manner, where it consists wholly or in part of matter of mere account, &c. But the same matter which may be decided in a summary manner, may, under the same circumstances, if the Court shall think fit, be referred, either wholly or in part, to an arbitrator, instead of being decided in a summary manner. And if the Court may decide in a summary manner the whole matter in dispute, where a part only consists of matters of mere account, it would seem to follow, that, in like manner, the whole may be referred, where a part only consists of matters of mere account. The repetition of the words 'wholly or in part,' in the second branch of the section, shows clearly that the matter to be decided or referred is the matter in dispute, and not the matters of mere account of which the matter in dispute consists; because it would be absurd to say, that, where part of the matter in dispute is matter of mere account, a part only of such matter of mere account may be referred.

"But the 4th and 5th sections lead us to the same conclusion. By the 4th section, issues of fact or law may be directed as to particular items; and, by the 5th section, the arbitrator, upon a compulsory reference, may state a case for the opinion of the Court. If the compulsory arbitrator is to be confined to the examination and addition of items of mere admitted accounts, it is difficult to imagine a case to which these sections would be applicable; for, wherever the account is not admitted in the form in which it is rendered, for instance, where an application of a particular payment is disputed,-it ceases to be a matter of mere account, and the power to refer would not attach.

"We conclude, therefore, from these sections, that the compulsory reference was intended to include matters in dispute which might fitly be determined by an issue to be directed by

the Court, or by a case to be stated by the arbitrator, and that the authority to refer is not restricted to those cases only in which no item is disputed, and which involve mere matters of

account.

"For these reasons we are of opinion that the rule ought to be made absolute."

It does not follow from this decision that every case ought to be referred which involves matters of mere account. The rule is well laid down in the case of the Taff Vale Railway v. Nixon (1 House of Lords' Cases, 125), and was probably the origin of the provision now under discussion.

15. WODEHOUSE V. FAREBROTHER. 5 Ellis & Bl. 277.

Practice-Equitable Defence-What admissible.

This was an action on a bond of indemnity, given by the defendant to the plaintiffs, for the due performance by one Edward Martin of the covenants of a certain mortgage-deed, the payment of the premiums on a certain policy of insurance, and interest on the mortgage-money. The defendant pleaded, by way of equitable defence, that he was only surety for Martin, and that he had offered, and was still ready, to pay all that was due in equity to the plaintiffs, on receiving an assignment of the securities.

The Court of Queen's Bench held that, assuming the facts proved sufficient to entitle the defendant to relief in the Court of Chancery, yet the plea was not good under the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, s. 83), inasmuch as it disclosed no facts which entitled the defendant to unconditional relief from the obligation in equity, but only such facts as entitled him to be made secure by an assignment of the securities. (See Mines-Royal Societies v. Magnay, 10 Exch. 489.)

16. WRIGHT v. MONEY. 11 Exch. 209.

Practice-Inspection of Document-Affidavit-Discovery.

The Court refused to grant an order for the inspection of a document upon an affidavit made by the defendant, which stated that the plaintiff's claim was for money lent to the defendant's wife; and that the first intimation which the defendant received of such claim was after the death of his wife, but on the day of her death, when the plaintiff showed the defendant an account-book, which the plaintiff stated contained accounts between himself and the defendant, and in which the

defendant believed the sum claimed was charged against him; and that he was desirous of knowing whether the money was advanced before or after his marriage with his deceased wife.

17. KENDALL V. KING. 17 Com. B. 483.

Public Body-Contracts by, in pursuance of Act of Parliament-Clerk to Trustees.

The defendant was clerk of the Committee of Visitors of the Cambridgeshire Lunatic Asylum, acting in pursuance of the 17th section of the 8 & 9 Vict. c. 126, by which a select number of the justices for a county or borough, called the "Committee of Visitors," were empowered to contract for plans, &c., for the erection of a lunatic asylum for the county, &c.; and section 16 enabling them to sue and be sued in the name of their clerk. The Court of Common Pleas held, that an action might be maintained against the Committee of Visitors in the name of their clerk, in respect of a contract so entered into by them, although the plaintiff might have no means of enforcing his judgment when obtained.

18. WALKER V. BARTLETT. 17 Com. B. 446.

Mining Shares-No implied Contract on the part of a Purchaser to indemnify the Seller against Calls in respect of.

A. agreed to sell to B. 500 shares in a lead-mine, and a transfer-paper in the usual form was made out in blank, signed by A., and sent to B., who kept it, but never signed his acceptance of the shares on the transfer-paper, nor ever took it to the purser of the mine to get the transfer registered; and so the shares remained on the books of the company in A.'s name.

Calls having been afterwards made in respect of the shares, which A. was obliged to pay, the Court of Common Pleas held (upon the authority of Humble v. Langston, 7 M. & W. 517), that no contract was to be implied on the part of the buyer either to register the shares in his own name, or indemnify the seller against any call which he might be required to pay by reason of non-registration.

19. GODTS v. Rose. 17 Com. B. 229.

Sale of Goods-Property and Right of Possession, how passed. This was an action of trover, to recover a quantity of rapeoil.

The plaintiff having a quantity of rape-oil at Humphrey's

wharf, contracted to sell five tons thereof to the defendant. The bought-note was as follows:-"Bought for account of Mr. W. A. Rose, of Mr. H. A. Godts, five tons of first quality foreign refined rape-oil, at 53s. per cwt., usual allowances; to be free delivered, and paid for in fourteen days, in cash, less 2 per cent. discount."

The plaintiff sent an order to the wharf, directing the wharfinger to transfer into the defendant's name five tons of the oil; and the wharfinger's clerk made the usual entry in his book, and gave the plaintiff's clerk a transfer-order, addressed to the defendant, acknowledging to hold the five tons for him. The plaintiff's clerk took the invoice and transfer-order to the defendant's counting-house, and offered them to him, at the same time demanding a cheque for the amount. The defendant, without (as the jury found) the consent of the plaintiff's clerk, took the transfer-order, but refused to give a cheque. The clerk thereupon returned to the wharf, and gave notice to the wharfinger not to deliver the oil to the defendant. In defiance, however, of this notice, the oil was afterwards delivered.

The Court of Common Pleas held that, under the circumstances, neither the property, nor the right to the possession thereof, passed to the defendant.

"If it were necessary," says Mr. Justice Willes, "to pronounce an opinion upon the construction of the contract, I should have little hesitation in holding it to be, that the seller should have the option of the time of delivery, and that then the buyer should have the goods only upon payment of the price. I, however, proceed upon this ground, that the property in the oil was in the seller at the time of the contract, and that nothing which took place between him and the buyer had the effect of taking that property out of the former, and vesting it in the latter. This was not a contract for the sale of any specific and ascertained parcel of oil; but for five tons out of any oil of the character specified. The contract is simply a contract for the sale of five tons of oil of the description therein mentioned. Now, when one man sells to another goods which are not specifically defined, it is necessary that they should agree upon what is to be delivered in fulfilment of the contract. The seller has the option of delivering, and the buyer of accepting, goods of the kind mentioned, subject to their being of the quality contracted for. In the present case, the seller, for the purpose of doing this, selects certain casks of oil as the oil which he tenders to answer the contract on his part; and he sends his clerk to the wharfinger with an order to him to hold these par