tiff, and this decision was affirmed by the Court of Exchequer Chamber. 5. TONGUE V. CHADWICK. 5 Ellis & Bl. 950. Costs where a Debt exceeding 201. is reduced by Set-off to less than 201. This was an action of debt on the money counts, the defendant pleading, amongst others, never indebted and set-off. The writ of summons had been indorsed for more than 207. On the trial the jury found that the defendant was indebted in 247. 138. and no further, and that there was a set-off of 191. 188. 5d. This finding was entered on the postea; and the plaintiff had a verdict for the balance, 47. 14s. 7d. The Master taxed the costs on the higher scale. On a rule to review his taxation, the Court of Queen's Bench held that the plaintiff was not deprived of his costs by the County Courts Acts, as the amount of the debt exceeded 201., though reduced by set-off; but that he had recovered less than 207., and therefore, under Reg. Gen. Hil. xvi. Vict. 8, his costs must be taxed on the lower scale. 6. MERCHANT TAYLORS COMPANY V. TRUSCOTT. 11 Exch. 855. Custom of London-Ancient Lights-Prescription Act, 2 & 3 Will. 4, c. 71, s. 3. This was an action for obstructing the plaintiff's ancient lights. The defendant set up the ancient custom of the city of London to build to any height on an ancient foundation, and pleaded that the obstruction complained of was caused by the building of the defendant being raised on its ancient foundation; and the plaintiff having replied a twenty years' enjoyment of the light in question, the question was raised on demurrer whether the ancient custom of London was abrogated by the third section of the Prescription Act, 2 & 3 Will. 4, c. 71. The Court of Queen's Bench had in Salters Co. v. Jones (3 Q. B. 109) already decided this question in the affirmative, and the present case was brought up into the Exchequer Chamber, in order to have that decision revised; and it was submitted, on the authority of a number of cases cited, and reported dicta of Lord Coke, Sir Orlando Bridgman, and other eminent judges, that this particular custom of the city of London, being expressly confirmed by Parliament, would prevail against the general words of an Act of Parliament. The Court of Exchequer Chamber, however, unanimously 1 held that the Prescription Act abrogated the custom, there being non obstante words, and the custom of London being directly at variance with the express words of the statute. 7. BROWN V. ACHROYD. 5 Ellis & Bl. 819. Husband and Wife-Liability of Husband for Law Expenses of Wife in Proceedings for Divorce. This was an action on a proctor's bill for the expenses in the Ecclesiastical Court, incurred by the plaintiff on behalf of the deceased wife of the defendant; and the Court of Queen's Bench, in giving judgment for the defendant, laid it down, that if a wife, from reasonable apprehension of personal violence, leave her husband's house, and it becomes necessary, for her protection, that she should obtain a divorce à mensa et thoro, the law gives her authority to pledge her husband's credit for the expenses of the proceeding; and the question as to the husband's liability is, whether, at the commencement of the proceeding, there was such reasonable ground in fact for anticipating ill-treatment, that the divorce was necessary for the protection of the wife. But such reasonable ground is not furnished by a momentary ebullition of temper on the part of the husband, nor by a threat of violence from which no serious intention to commit violence can be inferred. 8. COCKERELL V. THE VAN DIEMEN'S LAND COMPANY. Joint-Stock Company-Forfeiture of Shares-Measure of Damages in Action for withholding Shares alleged to have been forfeited. By the Act of Parliament by which the defendants were incorporated, the directors were empowered to make calls, giving twenty days' notice of the time and place of payment in the London Gazette, and in two or more of the daily London newspapers; and it was enacted, that if any proprietor of shares should neglect or refuse to pay his calls "during the space of three calendar months next after the time appointed for payment thereof," the person so neglecting or refusing should absolutely forfeit all his share in the capital stock of the company, and all profits and advantages thereof, to and for the use and benefit of the company, and all shares so forfeited should or might at any time thereafter be sold at a public sale; but that "no advantage should be taken of such forfeiture of any share or shares until after thirty days' notice should have been given by the directors, under the hand of the clerk of the company, to the owner thereof, by notice in writing left at his usual or last place of abode; nor unless the same should be declared to be forfeited at some general or special general meeting of the proprietors, which should be held not earlier than three calendar months next after the said forfeiture should happen.' The Court of Common Pleas held that there could be no absolute forfeiture until after the thirty days' notice. There being no evidence of a sufficient service of the notice, and the shares being withheld after a tender of the sum due for calls and interest, the Court held the plaintiff entitled to recover their value at the market-price of the day of the tender, deducting the amount of calls and interest. 9. WATSON V. LANE. 11 Exch. 769. Landlord and Tenant-Estoppel-Lease by Mortgagor-Surrender of Possession to Mortgagee. The defendant was tenant to the plaintiff, the owner of the equity of redemption of certain premises, under a lease whereby the defendant covenanted to deliver up to the plaintiff, at the expiration of the term, the premises and all fixtures therein. The term expiring on the 1st April, 1855, the plaintiff on the 10th April demanded possession, which was not given. On the 13th April, the mortgagee gave the defendant notice to pay the rent, and to deliver up the premises to him. In an action for breach of the covenant to deliver up the fixtures, the Court of Exchequer held that the defendant was not estopped from setting up the title of the mortgagee, and that the plaintiff could not recover the value of the fixtures, but only the actual damage sustained by him in consequence of their detention from the 10th to the 13th April. 10. HICKMAN v. Cox. 18 Com. B. 617. Partnership What constitutes a Partnership quoad third Persons-Trust-Deed for Benefit of Creditors. Messrs. B. and J. Smith, who carried on the business of ironmasters in co-partnership, by a deed, purporting to be made between themselves of the first part, five persons named as trustees of the second part, and the several persons whose names were contained in a schedule as creditors for the sums therein mentioned, and who should execute the deed, of the third part, reciting that the said Messrs. Smith were indebted to the several persons parties thereto of the third part, and that they had agreed to assign all their estate and effects for the benefit of such creditors, assigned the works, and all their property and effects, to the trustees, upon trust, amongst other things, to carry on the business under the name of "The Stanton Iron Company," and out of the profits to pay interest on mortgages, &c., and to "pay and divide the net income of the business remaining after answering the purposes aforesaid, unto and among all and singular the creditors of Messrs. Smith, in ratable proportions according to the amount of their respective debts." The Court of Common Pleas held that, under this deed, the creditors executing it became liable as partners for debts contracted by the trustees in carrying on the trade. 11. EASTON V. NEVILLE. 18 Com. B. 548. Practice-Attachment against an Attorney for not appearing to answer Charge supported by Affidavit. Mr. Stoker, the defendant's attorney in this case, not appearing pursuant to a rule calling on him to answer the matter of an affidavit, on being called three times in open court, the Court ordered a writ of attachment to be issued against him. 12. TETLEY V. EASTON. 18 Com. B. 643. Practice-Interrogatories—Under the Common Law Procedure Act, 1854. This was an action for an alleged infringement of the patent of a centrifugal pump, and the plaintiff now obtained an order for the exhibiting interrogatories under the 51st section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, asking, amongst other things, for the names of the persons to whom the pumps were sold, and of those who had sold them. It was objected on the defendant's part, that the answers to these interrogatories might expose the defendant's customers to actions, and it was prayed, therefore, that the interrogatories might be so modified as to prevent this; but the Court refused to interfere, the risk incurred by the customers not being of any consideration. 13. HAWKINS V. ALDER. 18 Com. B. 640. Practice-New Trial-Damages under 201.-Perverse Verdict. This was an action for negligently driving against and killing a horse of the plaintiff proved to be worth 307.; and there being strong evidence at the time to negative negligence on the part of the defendant, and some evidence the other way, the jury, contrary to the declared opinion and ruling of the judge, found for the plaintiff, damages 151. The Court refused to grant a new trial, the damages being under 201., and there being evidence on both sides. The Lord Chief Justice said that this verdict could not be deemed perverse, which means a verdict given on an undisputed state of facts, the jury disregarding the judge's direction in point of law, and substituting their own arbitrary notion of rough justice; and it was also intended that the 44th section of the Common Law Procedure Act, 1854, which in some measure places the costs, on motions for new trials on the ground of the verdict being against evidence, in the discretion of the Court, has not altered the rule which precludes the grant of a new trial in such cases where the damages are under 201. 14. MARE V. CHARLES. 5 Ellis & Bl. 978. Principal and Agent-Liability of Agent-Purser of Mining Company. This was an action on a bill drawn by the plaintiffs on the defendant for 1021. Os. 6d. The bill stated on the face of it that the value received was for machinery supplied the adventurers in Hayter and Holne Moor Mines; but it was directed to the defendant, without describing him as agent or purser. The defendant accepted the bill "for the company," and it appeared that the defendant was purser of the mining company, and not one of the adventurers. A verdict having been obtained for the plaintiffs, on a rule to enter a nonsuit, the Court of Queen's Bench held that the defendant was personally responsible, as no one but the drawee can accept a bill, unless for honour, and the defendant, by accepting the bill, made himself liable to pay it in the mode in which it was drawn. Lord Campbell observed, that Thomas v. Bishop (2 Strange, 955), which has been deemed to settle the liability of an agent on a bill drawn on and accepted by him in his own name for value received by his principals, has been uniformly considered VOL. II. NO. III. 2 E |