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DIGEST OF CASES.
[Comprising 5 Barn. & Adol. Part 2; 1 Nevile & Manning, Part 4, 2 Nevile & Manning, Parts 4 and 5, and 3 Nevile & Manning, Part 1 j 10 Bing. Parts 3 and 4; 3 Moore & Scott, Part 4; 2 Crompt. & Meeson, Part 1; 1 Crompton, Meeson, and Roscoe, Part 1 ; 3 Tyrwhitt, Parts 4 and 5; 2 Dowling's Practice Cases, Part 2; and a selection-from 6 Carr. & Payne, Part 2:—all Cases included in former Digests being omitted.]
ACTION ON THE CASE.
( What is meant by, in an act of parliament.) A private act gave trustees of a river navigation power to sue for arrears of tolls by action of debt or on the case: Held, that assumpsit would lie.—Corbett v. Carpmael, 2 N. & M. 834.
AFFIDAVIT.—See Bail, 14; Practice, 12, 30.
(Where superseded by subsequent agreement.) On the 28th May, A. entered into an agreement with B. for twelve months, for the performance of various literary labours, to be afterwards specified by B ; A. to receive six guineas a week, and not to engage during the year in any publication similar to the one of which B. was the proprietor. On the 14th October in the same year, a new agreement was concluded between the parties, by which A. agreed to edite a literary journal, and to devote all his time and attention to the same, (except the hours he had already engaged to devote to the superintendance of another publication, of which B. was not the proprietor,) at a salary of 10/. a week: Held, that the second agreement superseded the first, and that A. could not recover the six guineas per week for the remainder of the twelve months after the second agreement came into operation.—Patmore v. Colburn, 1 C. M. & R. 65.
AMBASSADOR. h :„ , ,
(Privilege of his servants from arrest.) The privilege from arrest allowed to an ambassador's servant, is the privilege not of the servant but of the ambassador; and if he make no application, the Court will not relieve the party arrested, unless he shows a clear case of service as a domestic servant, or under a hiring. (3 Burr. 1676; 2 D. & R. 833.)— Fisher v. Begrex, 2 C. & M. 240; 2 D. P. C. 279.
AMENDMENT.-See Writ Of Trial Act, 4.
ANNUITY.—See Devise, 1; Stamp, 3.
1. (Award, where bad became partial only.) The costs of an action and of a reference were to abide the event of the award: the arbitrator found that the plaintiff had a good cause of action on five out of eight counts; that the defendant should pay 51. damages; and that no further proceedings should be had in the action: Held, that there was no award as to three counts, and no event to authorize the taxation of costs on those counts; and consequently, that ho part of the award could stand.—Norris v. Darnel, 10 Bing. 507.
2. (Same.) Trespass. Pleas, general issue, and sundry justifications by reason of alleged rights of common. The cause was referred to an arbitrator, costs to abide the event. He awarded for the defendant on the general issue, and disposed of the rights contested in the special pleas of justification, but did not notice or decide upon the issues raised upon those pleas. The Court held the award sufficient. — Dibben v. Marquess of Anglesey, 10 Bing. 568.
3. (Rule to set aside award.) The rule of E. T. 2 G. 4, requiring the grounds of objection to an award to be stated in a rule nisi to set it aside, applies to the certificate of an arbitrator empowered to ascertain the amount due, and to certify the same to the associate, by whom a verdict is to be entered accordingly.— Cdrmichael v. Houchen, 3 N. &M. 203.
4. (Revocation of authority — Examination of parties.) By order pf nisi prius, a cause was referred to arbitration, with liberty to examine the parties, and with stipulations that the death of either party should not operate as a revocation of the arbitrator's authority ; and that if either party should by affected delay or otherwise prevent the making of the award, he should pay the other such costs as the Court should deem reasonable. The plaintiff died; the defendant, after allowing the reference subsequently to proceed for a short time, revoked the submission on the alleged ground of his being deprived of the benefit of the plaintiff's examination. He failed to show that this was the true ground, and the Court made him pay the costs of a trial occasioned by the breaking off of the reference.—Smith v. Fielder, 10 Bing. 306; 3 Moo. & Sc. 853. ,,
5. (Arbitrator's Fees.) A cause was referred, and in 1825 the arbitrator received from the plaintiff's attorney 87/. for his fees and expenses. In 1827, the parties went before the prothonotary, when he allowed only 35/. In 1833, the attorney who made the payment havmg died in the interip, the defendant applied to the Court to direct the arbitrator to refund the difference: Held, that he came too late.—Brazier v. Bryant, 3 Moo. & So. 844.
6. (Making order of reference a rule of Court.—Award, how far controlled by recital.—Attachment for non-performance.) A judge's order for referring a cause may be made a rule of Court, though the defendant gave no authority to his attorney to consent to its being made a rule of Court. Where a cause and all matters in difference are referred, a recital in the award that the action was referred (not mentioning the other matters in difference) does not constitute an objection to the award on the face of it; such an objection should be made the ground of a separate application to set aside the award, supported by affidavits showing what were the other matters in difference. An attachment for non-performance of an award will not be granted if an action has been commenced, except on the terms of discontinuing the action and paying the costs. (1 B. & P. 81.)—Paull v. Paull, 2 C. & M. 235; 2 D. P. C. 340.
7. (Motion to set aside award, when made.) A motion to set aside an award made under an order of nisi prius, must be made within the first four days of the next term, though it is for objections on the face of the award.—Sell v. Carter, 2 D. P. C. 245.
8. Where a cause was referred, and the plaintiff atteuded before the arbitrator by counsel, without giving distinct notice to the opposite party that he intended to do so, the Court ordered the cause to be referred back to the arbitrator, and disallowed the plaintiff his costs of the day. In such a case the rule nisi objecting to the award ought to specify the grounds of the motion. (1 M'Clel. & Y. 394.) — Whatley v. Morland, 2 D. P. C. 249.
Ming aside award, time for.) A motion to set aside an award made a judge's order must be made promptly after the party knows of the I being made. Where such a motion was made after a lapse of two terms, the Court discharged it with costs, though it was alleged by the party applying that he did not believe that the other party intended to proceed upon the award, as there had been a previous revocation.— Worrall v. Deane, 2 D. P. C. 2G1. And see Attorney, 3.
(Privilege of Suitor from.) Where a party to a cause is arrested on process issuing out of one Court, while attending at nisi prius in another Court in expectation of a cause coming on, he must apply for relief to the judge at nisi prius, or to the Court out of which the process issues, and not to the Court in which the cause is.—Pitt v. Evans, 2 D. P. C..223.
And see Ambassador; Process; Practice, 7.
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1. A score of faggots, piled one upon another in a loft, which was made by means of a temporary floor laid over an archway roofed in between two houses: Held not to be a stack of wood within 7 & 8 G. 4, c, 30, s. 17.— Rex v. Arts, 6 C. & P. 349.
2. A cart hovel, consisting of a stubble roof supported by uprights, in a field at a distance from other buildings, is not an outhouse within the meaning of the statute 7 & 8 G. 4, o. 30, s. 2.-Rex v. Parrot, 6 C. & P. 402.
(Certificate of Justices under 9 G. 4, e. 31, s. 27.) A certificate given by two justices under this statute is not available for the defendant in an action for the same assault, unless specially pleaded.—Harding v. King, 6 C. & P. 427.
1. (Consideration.) The plaintiff", an attorney conducting a fiat of bankruptcy, and having received a debt due to the bankrupt, undertook to pay to the defendant, the bankrupt's solicitor, the surplus that should remain of the sum so received after defraying certain charges incurred by the plaintiff, in consideration that the defendant would pay the costs of conducting the commission: Held, that there was not a sufficient consideration to support assumpsit on the defendant's promise to pay such costs, inasmuch as the plaintiff's engagement was one which he had not legally the power to perform. (3 Lev. 161; 3 T. R. 17.)—Hatlam v. Sherwood, 10 Bing. 540.
2. (Consideration.) No action lies (for want of consideration apparent on the face of it) upon the following undertaking:—" As you have a claim on my brother for £5 for shoes, I hereby undertake to pay the amount within six weeks from this date." (5 East, 10; 1 C. & J. 461; 6 Bing. 201) 7 B. Moore, 252.)—James v. Williams, 3 N. & M. 196.
1. (Re-admission.) The Court will, on payment of a moderate fine,, readmit an attorney who had inadvertently practised without a certificate through the omission of a clerk usually employed to take it out. (4 B. & Aid. 90.)—Exp. Rigby, 1 N. & M. 593.
2. (Duty of, as to deeds deposited with him.) An attorney with whom deeds are deposited by a client to obtain an advance of money on them, is bound on inquiry by the client to inform him where they are; and if, having placed them without the client's knowledge in the hands of a party from whom he has obtained such advance of money, he is unable to give him such information, he is chargeable with having mislaid theni.— Wihnolt v. Elkington, 1 N. & M. 749.
3. (Lien for costs.) Two causes at the suit of the same plaintiff were referred, costs to abide the event; and the arbitrator in his award directed that the damages in one should be set off against the costs in the other: Held, that this could only be done subject to the lien of the plaintiff's attorney for his costs in the first cause. (Reg. Gen. H. T. 2 Will. 4, s. 93.)
. Cbwellv. Betteley, 10 Bing. 432.
4. (Liability of, for negligence.) An attorney employed by a vendor to settle on his part the assignment of a term, allowed him to execute an unusual covenant (an unqualified covenant for quiet enjoyment,) without explaining to him the liability incurred thereby: Held, that he was responsible to him for consequent loss, even though the client himself was at the
time of his execution aware of the fact from which the liability arose (the death of a cestui que vie.)—Slannard v. Ullithorne, 10 Bing. 491.''
5. (Taxation of bill.) A defendant's attorney, having delivered to his client his bill of costs, from which more than one sixth is taxed off, cannot
afterwards alter that proporition by adding on both sides of the account a sum received by him from his client, and paid into Court. (1 Taunt. 536; and see post, pi. 17.)—Hays v. Trotter, 3 N. & M. 174.
6. (Liability for costs of act ion brought without client's consent—Withdrawing juror.) An attorney brought an action without his client's authority; at the trial a juror was withdrawn. The Court refused to order the attorney to pay the defendant's costs.—Hammond v. 'Thorpe, 1 C. M. & R. 64.
7. (Application against, when to be made.) A rule calling on an attorney to answer the matters of an affidavit, cannot be moved for so late as four days before the end of the term, nor can cause be shown against such a rule on the last day of the term.—Exp. , 2 D. P. C. 227.
8. (Attorney and client.) Where a client obtained an order that his attorney should deliver him an account of all monies received on his behalf, and he accordingly delivered an account, the Court refused to grant an attachment against him on affidavits impeaching the correctness of the account.— Exp. Lawrence, 2 D. P. C. 230.
9. (Attorney and client.) An attorney has no right, as against his client, to retain in his hands money which he has received as his attorney, even though it be the proceeds of an execution against a defendant who objects to the amount levied, and who has a rule pending before the master, calling on the plaintiff or his attorney to refund the money.—Sibley v. Leicester, 2 D. P. C. 234.
10. (Attorney and client—Summary jurisdiction.) The Court will not interfere to compel an attorney to pay over money, the right to which depends upon the existence or non-existence of a special agreement between the client and the attorney, which the attorney disputes.—Hodson v. Ttrrill, 2 D. P. C. 264.
11. (Lien for costs.) A verdict was obtained in an action of trover for £200, to be reduced to Is. if the goods were delivered up. The plaintiff became insolvent; but the defendant, on the application of the assignee, delivered up the goods to him: Held, that the plaintiff's attorney had no claim in respect of his lien for the costs, either against the assignee or the defendant, without cither showing express notice, or mating out a case of fraud.—Bloomfield v. Blake, 2 D. P. C. 272.
12. (Privilege of.) Since the Uniformity of Process Act, an attorney sued with an unprivileged person does not lose his privilege, and cannot be arrested. (1 Tyr. 274.)—Pitt v. Pocock, 2 C. & M. 146; Keep v. Biggs, 2 D. P. C. 278.
13. (Taxation of bill.) Several persons having agreed with a plaintiff to ense of an action (a feigned issue,) and he having paid the
1 brought an action against one of those persons for