Page images
PDF
EPUB

AN

INDEX

OF THE

PRINCIPAL MATTERS.

A.

ABANDONMENT,

See INSURANCE, 2, 4, 11, 15.

ACTION,

See ASSUMPSIT.

1. In an action on the case for
falsely representing the character
of another, by reason of which
false representation he obtained
credit of the plaintiff; it is neces-
sary to prove against the defend-
ant both fraud and falsehood, viz.
that the representation which he
made was false, and that the de-
fendant knew it to be false at the
time he made it. Falsehood with-
out fraud is not sufficient. Ash-
lin v. White.
Page 387
2. A messenger under a commission
of bankrupt sues the assignees for
his costs and expences, and obtains
a judgment against them. One of
the assignees pays the debt and
costs under the judgment.
has a right to an action of contri-
bution against his co-assignee, and
VOL. I.

He

[blocks in formation]

ASSAULT,

See EVIDENCE. TRESPASS.

ASSUMPSIT,

See STATUTE OF FRAUDS, 1.

1. A. contracts to sell to B. 50 tons of hemp, to be shipped from Cronstadt or St. Petersburgh; the ship's name to be declared as soon as known, and to arrive before the 31st of December. On the 5th September, A. gives notice to B., that the hemp was shipped on board the Lively; on the 20th he sends a second notice, that if the quantity did not come by the Lively, he would make it up from the cargo of another vessel. On the 29th, A. gives a third notice, that 20 tons would come by the Lively, and the rest by another ship. B. accepts the 20 tons, but refuses to receive any more. Held, that B. was bound to receive the remainder of the hemp, unless he could shew that he had sustained some special damage by A.'s nonperformance of the precise terms of the contract. Thornton v. Simpson. Page 164

2. In an action by the steward of a manor, for a particular rate of fees claimed to be due to him from a tenant on his admission to six several copyhold estates, if he fail to establish a custom for his charges he may, notwithstanding, resort to a quantum meruit. Held, afterward, by the court, that where a person is admitted to several distinct copyhold tenements, the steward of the manor is not entitled, without proving a custom, to full fees on each admission, separately; but he may stand on his quantum meruit. Everett v. Glyn.

1

3. Where the broker makes a mis

take in the contract, describing, in the bought and sold notes, goods to be sold by A., B., and C., which he believed to be the real name of the firm which employed him; which firm, in fact, from a recent alteration that the broker was not privy to, consisted of A., D., and E. only. Held, that the purchaser of the goods was not at liberty to avoid the contract on this account, after having treated the contract as subsisting, upon a subsequent communication from the plaintiffs, unless he could shew that he had been prejudiced, or had lost the benefit of a set-off. Mitchell v. Lapage. Page 253 4. Where work is done upon a special contract and for estimated prices, and there is a deviation from the original plan, by the consent of the parties, the estimate is not excluded, but is to be the rule of payment, as far as the special contract can be traced; and for any excess beyond it, the party is entitled to his quantum meruit.

Where work is done under a special contract, the plaintiff is not precluded from recovering under the counts for work and labour generally; unless there be something in the terms of the special agreement which, either by stipu lation or necessary intendment, prevent him. Robson v. Godfrey. 236

5. An action for money had and received will not lie to recover back a sum paid upon trust, for a specific purpose, unless it be shewn that the trust is closed, and that a balance remains in the hands of the trustee. Case v. Roberts.

500

6. An auctioneer is not liable to pay interest upon a deposit kept in his

hands, during the investigation of a title. He is to be considered as a mere agent, unless he specially engage as a principal in the sale. Lee v. Munn. Page 569 7. Q. If tolls can be claimed under

a modern grant of liberty to hold a market, &c. and to receive the accustomed dues and tolls, &c., but to which grant no specific tolls are annexed. Lowden v. Hierons. 647

ASSUMPSIT IMPLIED,

See ASSUMPSIT, 4.
ATTESTING WITNESS,
See EVIDENCE. WITNESS.
ATTORNIES,

See BANKRUPT, 13.

1. After action brought, the defendant pays the plaintiff the debt and costs in the cause, and takes a receipt for the same. The plaintiff nevertheless proceeds in the action, and the defendant pleads the general issue. The receipt is no defence under this plea, and plaintiff is entitled to nominal damages. Holland v. Jourdine.

ANIMAL.

6

[blocks in formation]

BANKRUPT,

See BROKER, 3. TRUSTEE, 1. 1. If the petitioning creditor be privy and assenting to the execution of a deed by traders, by which they make an assignment of all their property, though such assignment be fraudulent, and an act of bank ruptcy, upon which other creditors, not privy and assenting, may sue out a commission, he is estopped; and having assented to the deed, though he did not execute it, he cannot set it up as an act of bankruptcy. Burrough v. Gooch. Page 13 2. An uncertificated bankrupt may sue as a trustee for his assignees ; and the defendant cannot object to the action unless they interpose. If a broker deliver a bought and sold note which materially differ, there is no valid contract. Cumming v. Roebuck.

172

3. A trader directs his servant, that if any one should come whilst he was at dinner, or engaged in business, she should deny him. Held, that such instructions did not amount to a direction for a general denial; and, therefore, although a creditor called and was denied, it was no act of bankruptcy. Shew v. Thomson. 159 4. A trader having business both in

England and Spain, has a right to go to the latter country to look after his concerns; and though his creditors are thereby delayed, it is no act of bankruptcy. But if he likewise goes abroad from the fear of arrest, though it concur with the justifiable motive, that of look. ing after his foreign business, it is an act of bankruptcy. Warner v. Barber. 5. A. before his bankruptcy discounts certain bills of exchange with B. and C., his bankers. They gave

175

him immediate credit for the value of the bills in his account, minus the discount. A balance is likewise struck before the bankruptcy, and, whilst the bills were yet running in favour of A., (when the bankers admit that they have in their hands 934l. 8s. 8d. due to A., giving him credit for the bills then running,) A. becomes a bankrupt, and the bills are dishonoured. Ileld, that in an action against the bankers for the balance admitted to be due to A. before his bankruptcy, they have a right to set off against such claim the amount of the dishonoured bills, it being a case of mutual credit under the 5 Geo. II. c. 30 s. 28. Gowen v. Tritton. Page 408 6. First, In an action of tort against several, if there be evidence against some only, and nore against others, it is discretionary with the Judge at nisi prius, whether he will direct the acquittal of such defendants, against whom there is no evidence, at the close of the plaintiff's case, for the purpose of making them witnesses for the codefendants. But such an intermediate acquittal is not a matter which the defendants' counsel can claim of right. Secondly, an uncertificated bankrupt hires a shop; goods are supplied in the name of his son, but principally upon the father's guarantee. Held, that his assignees were liable to an action of trespass at the suit of the son, for seizing them as the goods of the bankrupt. Davis v. Living.

275

7. In an action by the assignee of a bankrupt claiming property which the bankrupt is alleged to have had in his possession, order, and disposition, as the reputed owner at the time of his bankruptcy, it is competent for the defendant,

who has paid a valid consideration for the property, to give evidence of a contrary reputation, and to resist the claim of the plaintiff under the statute 21 Jac. I. c. 19. s. 11. upon those grounds. Gurr v. Rutton. Page 327 8. Assignees are not concluded by putting up the premises to sell: they may make an experiment to see if the lease be beneficial. But, in a case where they put up the premises to auction, and found a purchaser, and received a deposit; but the contract of sale afterwards went off, without the assignees shewing any reason why they did not enforce the sale: held, that they were liable to the payment of rent, as 66 assignees of all the estate and interest, &c. of the bankrupt, in the premises." Hastings v. Wilson.

290

9. The petitioning créditor, and not the solicitor, is liable to the messenger under a commission of bankrupt, for the costs and expences attending it. The solicitor is an agent merely, and is not to be regarded as a principal as respects the messenger; and, although he make himself responsible to the messenger, the petitioning creditor will not therefore be exonerated, without the express consent of the messenger to discharge him. Hart v. White. 376 10. A. (an officer of the army) retires to the country, where he rents a dwelling house and three acres of land; buys pigs, and consumes part in his family, and sells the rest at a neighbouring market. He makes no shew as a dealer, and is proved not to have bought more than fourteen pigs in any one year. Held, that he was a trader within the bankrupt laws. The smallness of the profit is no consideration, and one act of buying

« PreviousContinue »