Thirdly, that, as the assistant overseer was not bound to account to the overseers, his appointment as overseer did not make such an alteration in the mode of accounting as would affect the liability of the sureties. Worth v. Newton, 247

BOTTOMRY BOND. See ADMIRALTY COURT.

BOUGHT AND SOLD NOTES. See CONTRACT, (1).

BRISTOL WATERWORKS

COMPANY.

to

"The Bristol Waterworks Act, 1846," (9 & 10 Vict. c. ccxxii.) enabled the company to take the water of the river Chew, subject to certain conditions. In 1849, their works were completed, and they used the water of the river. In 1853, the 16 Vict. c. vii. passed, the 15th section of which provides, that "nothing contained in that Act, or in 'The Bristol Waterworks Act, 1846,' shall extend to authorise the company take, use, or interfere with any land, soil, or water, or any rights in respect thereof belonging to the Duke of Cornwall, without the consent of the duke under his privy seal." After the passing of that Act, the company continued to take the water of the river as they had before done, since the completion of their works, and thereby diverted a stream which ought to have irrigated certain land of the duke:-Held, that the 15th section of the 16 Vict. c. vii. had a retrospective operation, and prevented the company from taking, as before, the water of the duke without his consent.

Quare, whether, under a plea traversing the right alleged in an information, to have the land of the

CARRIER.

duke irrigated by a stream of the river Chew, the defendants could shew, that they took the water under the provisions of the 9 & 10 Vict. c. ccxxii. Att.-Gen. of Prince of Wales v. The Bristol Waterworks Company, 884

BROKER.

See GAMING CONTRACT.

CALLS.

See BANKRUPT, (5).

CARRIER.

Loss of Goods.

A declaration stated, that the defendants were proprietors of a railway from W. to S., and were common carriers of passengers and their luggage on the said railway, between the places aforesaid, for reward to them in that behalf: that the plaintiff became a passenger, to be by the defendants safely and securely carried, together with his luggage, on a journey from W. to S., for reward then paid by the plaintiff to the defendants; and the defendants received the plaintiff as such passenger, together with his luggage, to wit, a portmanteau, containing (amongst other things) copies of abstracts of title, conveyances, and leases, to be safely and securely carried and conveyed by the defendants as such carriers from W. to S.; and there, on the arrival of the plaintiff at S., to be delivered to the plaintiff. Breach :-That although the defendants, as such carriers, received the luggage of the plaintiff, and conveyed him to S., yet the defendants did not use due and proper care in and about the carriage of the defendant's luggage, but wholly neglected so to do; and so negligently conducted themselves, that, through

the carelessness, negligence, and default of the defendants, the luggage of the plaintiff was not safely and securely carried, conveyed, and delivered by the defendants to the plaintiff at S.; but, on the contrary thereof, through the carelessness, negligence, and default of the defendants, a part of the luggage, to wit, the portmanteau and the goods contained therein, were for a long space of time lost to the plaintiff, and the plaintiff was deprived of the use, enjoyment, and possession of the same during the time aforesaid. Plea:-As to so much of the declaration as relates to the said copies of abstracts of title, conveyances, and leases, that the same were title deeds and writings contained in one package, and exceeding in value the sum of 10., which package was delivered by the plaintiff to the defendants, as common carriers by land, at their office that a notice was affixed in the office, that the defendants required an increased rate of charge to be paid for the conveyance of title deeds and writings; and that, at the time of the delivery of the package, the value and nature thereof were not declared by the plaintiff, nor the increased charge paid. New assignment :-That the plaintiff sues not for any loss of or injury to the said copies of abstracts of title, conveyances, and leases within the meaning of the 11 Geo. 4 & 1 Will. 4, c. 68, but for that the defendants did not use due and proper care in and about the carriage and conveyance of the same from W. to S., and so negligently conducted themselves that they were not delivered to the plaintiff at S., but on the contrary thereof, the said copies of abstracts of title, conveyances, and leases were for a long time, to wit, from the 3rd of June to the 22nd of September,

:

delayed, kept, and detained by the defendants; and the plaintiff was deprived of the use, enjoyment, and possession of the same, although they were not lost or injured within the meaning of the said statute. On demurrer to the new assignment :— Held, that the loss or injury to goods against which a carrier is protected by the 11 Geo. 4 & 1 Will. 4, c. 68, is a loss by the carrier of the articles committed to him, or injury to them whilst in his care, and not a loss sustained by the owner in consequence of the non-delivery of the article in due time or altogether, or the loss of the use of the article by him; and that, as the plea did not allege a loss within the statute, it was bad, and the plaintiff was entitled to judg

ment.

Quare, whether the new assignment was good. Hearn v. The London and South Western Railway Company, 793

CA. SA.

See BAILIFF.

CAUSA PROXIMA.

See POLICY OF ASSURANCE, (1).

CAUSE OF ACTION. See COUNTY COURT, (2).

CERTIFICATE OF ACKNOWLEDGMENT OF MARRIED WOMEN.

See DEVISE, (1).

CERTIFICATE FOR COSTS. See PATENT.

CHARTERPARTY.

(1). Construction of Charterparty.

or

A declaration on a charterparty stated, that it was agreed between the defendant, the shipowner, and the plaintiff, that the ship should proceed to S., and there take on board from the agents of the freighter a full and complete cargo of coals, and therewith proceed to L., and deliver the same at the wharf to the order of the freighter (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature kind, during the said voyage always excepted); that the charter should be in force for six successive voyages; and that they should be made not later than the last day of February, 1853. Breaches, that the ship did not make six successive voyages, and that the defendant would not permit the ship to make more than three voyages. Plea, that, during the three voyages, the ship sustained great damage by dangers and accidents of the seas and navigation, which damage was necessary to be repaired before the ship could commence her fourth voyage; that the defendant forthwith, on the completion of the said three voyages, proceeded to repair, and did repair, the damage; but it could not be repaired, nor could the ship be made fit to commence the fourth voyage until after the last day of February, 1853, had elapsed :-Held, that the plea was bad, inasmuch as the inability to perform the voyages within the time specified did not discharge the contract, or afford any excuse for not commencing the fourth voyage. Pope v. Bavidge,

73

(2). Freight, Amount of.

A vessel was chartered to carry a cargo of corn from Odessa to Gloucester, for freight payable at a certain rate per quarter. 2664 quarters were shipped at Odessa, and the master signed bills of lading in the usual form, and which contained a memorandum, "quantity and quality unknown." The vessel arrived at Gloucester with the cargo of corn, when it was measured at the Queen's Beam, and found to contain 2785 quarters. In the course of the voyage a portion of the corn, from some unknown cause, had be come heated and damaged, whereby its bulk was increased :—Held, that freight was payable on the quantity of corn shipped, and not on its measurement at the port of discharge :-Per Pollock, C. B., Alderson, B., and Platt, B.-Martin, B., dissentiente. Gibson v. Sturge, 622

(3). Evidence of Custom.

ex

Under the 11 & 12 Vict. c. 112; which enacts, that the Metropolitan Commissioners of Sewers may sue and be sued "in the name of the clerk for the time being," as plained by the 15th section of the 12 & 13 Vict. c. 93, which enacts, that the chief clerk to the Commissioners shall be called the secretary; and the word "clerk,” in any of the Acts relating to the Commissioners, shall include "secretary;" the Commissioners must sue and be sued in the name of their secretary. ments v. Pollard,

Cle

817

COMMITMENT (WARRANT

OF).

See MAGISTRATE, (1).

COMMON.

On the trial of a question between the lord of a manor and a commoner, as to the right of the former to in

COMMON LAW PROCEDURE
ACTS.

See DISCOVERY OF DOCUMENTS.
EQUITABLE DEFENCE.
ERROR.

INTERROGATORIES.
WRIT OF SUMMONS.

(1). Service Abroad.

A British subject, residing in France, was there served with a writ of summons in the form prescribed by the 18th section of "The Common Law Procedure Act, 1852." The writ was specially indorsed with a claim in respect of promissory notes made abroad. The defendant appeared to the writ, and, after declaration, found that the cause of action did not arise within the jurisdiction of the Court, and was not in respect of a breach of a contract made within the jurisdiction, whereupon he applied to set aside the writ and proceedings under it : -Held, that there was no irregularity in the writ itself; and that the defendant, by appearing, had given the Court jurisdiction.

In such case, the defendant should apply to a Judge for particulars before appearance. Forbes v. Smith,

717

(2). Common Count for Freight. A declaration stated, that "the plaintiff sues the defendant for freight for the conveyance by the plaintiff for the defendant, at his request, of goods in ships." Plea, never indebted:-Held, that though, on demurrer, the declaration would have been bad, for not shewing a debt payable in præsenti, according to the form given by the Common Law Procedure Act, 1852, yet the defect was cured by pleading over. 724 Wilkinson v. Sharland, (3). Form of Rule Nisi for New Trial.

Under the 33rd section of the Common Law Procedure Act, (1854), 17 & 18 Vict. c. 125, the grounds upon which a rule nisi is obtained for a new trial, or to enter a verdict of nonsuit, must be specifically stated in the rule; and therefore a rule nisi for a new trial, on affidavits stating that the rule was granted

66

on the grounds set forth in the affidavits annexed," is insufficient.

The Court has power to order the rule to be amended on cause being shewn against it. Drayson v. Andrews, 472

CONCEALMENT. See GUARANTEE, (1).

CONDITION. See BOND, (1).

CONSIDERATION.
See ISSUABLE PLEA.
PLEA, (2).

Failure of Consideration.

The first count of a declaration stated that the plaintiffs had projected a joint stock company within the meaning of the 7 & 8 Vict. c.

110, which company was afterwards provisionally registered: that, within twelve months after its provisional registration, articles of agreement were entered into between the plaintiffs of the one part, and P. and L. of the other part, whereby the plaintiffs agreed to transfer to P. and L. on behalf of the company all the interest of the plaintiffs therein; and P. and L. on behalf of the company agreed that, in case the plaintiffs should, within six calendar months after the arrival of the first of the steam vessels to be dispatched by the company in the colony of Australia, commence the business of shipbrokers at Sydney, the plaintiffs should be the shipbrokers of the company for the port of Sydney; and further, that the company should provide the plaintiffs with a free passage to the said colony by the first of the company's steam vessels so to be dispatched. Averments, that afterwards the company was completely registered; that, after the provisional registration of the company, the first steam vessel was dispatched by the company to Australia, and the plaintiffs were willing to have gone by it, and did all things necessary to entitle them to the Breach, that the agreed passage. company refused to permit the plaintiffs to go by that vessel. Second count, that the company after their complete registration, by their directors, exonerated and discharged the plaintiffs from establishing the business of shipbrokers at Sydney within six calendar months after the arrival of the first steam vessel; and the company then agreed with the plaintiffs, that the time for establishing such business at Sydney by the plaintiffs should be enlarged; and that, if the plaintiffs established such business at Sydney within six calendar months after the arrival of a certain other