bankrupt. In trover by A. against the wharfinger for the benefit of his assignees;-Held, that B.'s right of stoppage in transitu was gone; but that there might still be a question for the Jnry, whether the sale was not made under such gross circumstances of fraud as to vacate the contract altogether. Noble v. Adams. Page 248 4. A., in London, orders goods of B. at Manchester; B. forwards them by a carrier to London. Whilst they are on their transit, B. hears of A.'s insolvency, and directs the carriers to stop them; and for this purpose he makes out a new invoice to D., which he transmits to the office of the carrier in London. The goods, by a mistake of the carrier, are delivered to A., who becomes a bankrupt; his assignees claim to retain them.-Held, that B. had a right to recover them in an action of trover against the assignees of A. Litt v. Cowley. SUBPOENA, See EVIDENCE, 2. 338 1. In an action of trespass for false imprisonment, a constable may justify under the general issue, though he acted without a warrant, provided there were a reasonable charge of felony made; although he afterwards discharges the prisoner without taking him before a magistrate; and although it should turn out in fact that no felony was committed. But a private individual, who makes the charge, and puts the constable in motion, cannot justify under the general issue he must plead the special circumstances, by way of justification, in order that it may be seen whether his suspicions were reasonable. M'Cloughan v. Clayton. Page 478 2. In trespass, there are two independent parishes in one district, as St. John's and St. James's, in Clerkenwell; if the trespass be stated to have been committed in Clerkenwell, generally, and be proved to have been committed in the parish of St. James's, it is a fatal variance. Taylor v. Hooman. 523 1. An usage of trade cannot be set up to contravene au express contract. Therefore, when A. agreed to sell to B. a quantity of bacon, which he warranted to be of a particular quality, part of which B. weighed and examined upon delivery at the wharfinger's, and paid for the whole by a bill at two months, but before the bill became due, gave notice to A. that the bacon was not agreeable to the contract, -Held, that B. could not give in evidence a custom in the bacon trade, that the buyer was bound to reject the contract, if dissatisfied therewith, at the time of examining the commodity; and that, having neglected to do so in the first instance, he was excluded from future objections. Yeats v. Pim. Page 95 USE AND OCCUPATION. Though an agreement for use and occupation is void by the statute of frauds, nevertheless, if the tenant take possession of the premises under it, he becomes a tenant at will; and recourse may be had to the original agreement to calculate the amount of rent. De Medina v. Polson. 47 USURY. 1. A., in consideration of a certain sum of money, conveys premises to B., and, at the same time an agreement is entered into between them that A. shall re-purchase the same premises, within fifteen months, at a considerable advance upon the original purchase-money; and B. agrees to sell and re-convey at such advance.-Held that, in point of law, such contract was not usurious, unless it were meant as a cover for a loan of money, which was a question of fact for the Jury. Metcalf v. Brown. 295 2. A. employs B. to get a bill discounted, and agrees to give him a sum of money beyond the legal interest. B. procures C. to discount it, who requires B. to indorse the bill, but takes no more than the legal interest upon the discount. B. then pays over to A. the proceeds of the bill, minus the sum which A. had agreed to give him for procuring the discount.-Held that, in an action against A., brought by the indorsee of C., A. could not defend himself on the ground of usury 1. A. lays a wager of twenty-five guineas with B. upon the event of a horse-race, and C. takes the risk of ten guineas (part of the twentyfive) as his share of it. A. wins the wager; but, before he receives the money from B., he C. ten pays guineas, as his portion of the bet. B. never paid the wager to A., and all hope of obtaining it was lost.-Held, that A. was entitled, notwithstanding the statutes of gaming, to maintain an action of money had and received against C. for the ten guineas which he had paid him. Simpson v. Bliss. WITNESS. 732 1. A. who is indebted to B., gives him a bill of C. to get discounted. B., instead of discounting it, holds the bill as a security for the debt of A., contending that A. gave it to him by way of payment of his debt. In an action upon this bill, brought by B. against C., A. is not a competent witness to prove, on the part of the defendant, that he delivered the bill to B. merely to get it discounted, not as payment, without a release. Because, in the event of the plaintiff's recovering, he would be liable to the costs of the action brought against C., as special damage in an action against himself for the violation of his duty. Harman v. Lasbrey. Page 390 2. Where a witness is examined on interrogatories by the plaintiff, and cross interrogatories on the part of the defendant, although it should appear when his evidence is read at the trial that he was an interested witness, and ought to have been released; his evidence, notwithstanding,may be read, without proving him to have been released previously to such examination. The objection is too late at the trial; and should have been made at the time he was examined. Ogle v. Paleski. 483 517 3. When a witness's character is attacked in a court of justice, the questions should be confined to his general conduct, and should not point at specific charges. Sharp v. Scoging. 4. The examination of a prisoner before a magistrate, who examines such prisoner as a witness, although he holds out no threat or inducement, cannot be used against 597 him. Rex v. Wilson. 5. It is an objection to the competency of a witness, who comes to discharge certain premises from a rate, that he has property of the kind in question, in the occupation of a tenant, subject to such rate, if established: and, therefore, his own reversionary interest may be affected thereby. Rhodes v. Ainsworth. WRIT. 619 In an indictment under Lord Ellenborough's act, for cutting and maiming a sheriff's officer, it is in cumbent on the prosecutor, not only to produce the warrant made out by the sheriff to the officer, but likewise the writ. Rex v. Meade. Page 593 WRIT OF RIGHT. 1.Tender of the demy mark: and what the demandant is bound to prove upon such tender, previous to the tenant being put upon proof of his title. 2. Evidence of a general perception of rent of the tenements, of which those demanded formed part,— Held, to be sufficient of possession to support a fine levied with proclamations, against the plea, quod partis finis nil habuerunt, &c. so as to bar the heir who never made actual entry after the death of his ancestor. Hardman v. Clegg. Page 657 |