who were sureties for D. The plaintiff is obliged to pay the bond, and brings an action against his co-surety for contribution. A defence is set up, that the principal had paid money, specifically on account of this bond, to one of the obligees, and that such obligee had carried it to the account of the bond. Held, that any declaration of the obligee, upon what account he received the money, or how he had applied it, (unless such declaration were made at the time of payment,) was not evidence; and that such obligee must be called as a witness. 3. Though time given to the principal will, under certain circumstances, exonerate a surety; yet time given to a surety, without the privity of his co-surety, will not, upon his paying the debt, affect his right of action for contribution against such co-surety. Dunn v. Slee. Page 399 2. The payee is entitled to notice of the dishonour of the note, although there were no consideration between him and the maker. Free v. Hawkins. Page 550 Q. QUANTUM MERUIT, See ACTION. R. RENT. RIGHT OF WAY, See HIGHWAY, 2. RIOT ACT. 1. In an action on the riot act, and upon the 52d Geo. III. c. 130. against the hundred,-Held, that burning, though specifically mentioned in a clause of the statute, as distinct from a demolishing or pulling down, is included in the latter terms. Quære, If a staith, which is a place of deposit for coals, is an erection, building, or engine, within the meaning of the first and second sections of the 52d Geo. III. c. 130. Nesham v. Armstrong. Page 466 SEAWORTHINESS, See INSURANCE, 6. SHERIFF. His 1. Where a debtor is discharged under the Insolvent Act, his property is vested in the clerk of the peace, until assignees are chosen, and afterwards in his assignees ; and although he be permitted to continue in the possession of his property, and to act as ostensible owner, no creditor can take his goods in execution, and compel the sheriff to make a sale. remedy is to obtain a distribution under the Act; or, in case of fraud, to apply to have the discharge set aside. Hindle v. Bell. Page 161 2. In an action against the sheriff for an escape, the regular way of connecting him with his officer, so as to make him responsible for his act, is by the production of the warrant. But any recognition by the sheriff, that the officer acted under his authority, will dispense with the necessity of producing it. An indorsement upon the writ, (returned and filed by the sheriff) of the name of the officer, is not sufficient to make the sheriff responsible, without proving that his name was written upon it by the authority, or with the privity, of the sheriff. The writ, with the sheriff's return upon it, is only evidence against him, to the extent of his duty under it; and it is no part of his duty to annex the officer's name to the return. Hill v. Leigh. 217 3. It is sufficient to excuse the sheriff, in an action against him for a false return, "that the defendant forcibly rescued himself," provided the fact be so: but if the defendant escape, owing to the 1. In an action for slander, it is not competent for the defendant, under the general issue, to offer, in mitigation of damages, evidence that the specific facts in which the slander consists, and for which the action is brought, were communicated to him by a third person. Mills v. Spencer. 533 2. No action can be maintained against a counsel, for words spoken in a judicial proceeding, provided they are pertinent to the cause, and that no malice against the individual who is the subject of the words be proved against him. Hodgson v. Scarlett, Esq. STAGE COACH, See CARRIER. STATUTES, See SHIP, 1. 621 1. Notwithstanding there has been no notice to dispute commission, act of bankruptcy, &c. under the 46 Geo. III. c. 135. s. 10. the proceedings are not conclusive evidence of the facts therein stated; but the Court is still to form a judgment upon them, whether they prove an act of bankruptcy or not. Riorden v. Forrestall. Page 190 2. A. contracts to sell to B. some Russian hemp; and the ship, on board of which the hemp is to be conveyed, is to sail from St. Petersburgh by a given day. A. is the importer of the hemp. By the stat. 10. and 11. W. III. c. 6., it is illegal for any subject of this realm to carry on a trade with Russia, unless he be a member of the fellowship of merchants trading to those countries. A. is not a member of the company; but the hemp is protected at the landing scale and in the docks, by using the name of a broker, who was one of the fellowship. Quære, If this be such an illegality in the contract as will render it void, and entitle B. to avail himself of it, as a defence to an action brought against him by A. for not fulfilling his agreement. Gross v. La Page. 105 3. A. and Co. guaranteed to B. and Co. payment for any goods which they might supply to C. within a certain period, at a credit of two and two months. C. becomes indebted to B. and Co. for goods, and gives them three bills of exchange, in payment, indorsed by A. and Co., who shortly afterwards become bankrupts. One of these bills was dishonoured before, and the other two bills after, their bankruptcy. C. was likewise indebted to B. and Co. before the bankruptcy of A. and Co. for some goods, for which they had a right only to call on C. to give them a bill at two months, at the time of A. & Co.'s commission. Held, that in an action, brought upon the guarantee, against A. and Co., their certificate was a good defence, by virtue of the statute of the 49th Geo. III. c. 121. s. 9. Gaskell v. Lindsay. Sed contrà, by K. B. Page 212 4. In an action against the hundred Held, that they are only liable for things demolished by the ri oters, or destroyed in the demolition of the house, and not for any goods stolen or lost from the premises. Smith v. Bolton. 201 (43 Geo. III. c. 58. s. 1.) 5. In an indictment upon the 43d G. III. c. 58. Semble, that the words 66 some other grievous bodily harm" must be construed to extend to such wounds only as are inflicted upon a vital part in the body. Rex v. Akenhead. (5 Geo. II. c. 30. s. 45.) 6. See BANKRUpt, 9. (18 Geo. II. c. 20.) 469 7. See JUSTICE OF PEACE, 1. 8. See RIOT ACT, 1. (21 Jac. I. c. 19.) 9. See BANKRUPt, 17. SPECIAL CONTRACT, SPECIFICATION, STOPPAGE IN TRANSITU. 1. When the master of a ship re ceives goods on board, and gives a receipt for them, it is his duty not to deliver the bill of lading, except to the person who can give the receipt in exchange. A. sells goods to B. to be delivered free on board a particular ship: he loads them on board, and takes a receipt from C., which purports that the goods were received "for and on account of A." Before the delivery, B. had sold the goods to D., who, without the knowledge and consent of A., obtains a bill of lading from C. B. becomes insolvent,-Held, that A. is entitled to stop the goods in transitu, and that C. having refused to deliver them on the production of the receipt, is answerable to A. in an action of trover. A's right would have been the same, although the receipt had not contained the restrictive words, but had been in the general form. Craven v. Ryder. Page 100 2. An order sent by the vendor to the wharfinger to deliver the goods to the vendee, is sufficient to pass the property to the vendee, provided nothing remains to be done but to make the delivery: but ifany thing remain to be done, for example, weighing, &c. the property does not pass, and the right of stoppage in transitu is not defeated till that be done. Withers v. Lys. 3. A. being in bad circumstances goes to Glasgow, and obtains goods from B., paying for them by a bill upon a house in London, which house he knows to be insolvent. The goods are shipped at Leith; the invoice and receipt made out to A.; and they are afterwards delivered to a wharfinger in London, who receives a notice from the original vendor (B.) to hold them for him. A. becomes a 18 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 4.'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 |