and to have been ratified by the defendant. Kemp v. Balls, 607

PETITIONING CREDITOR'S

DEBT.

See BANKRUPT, (3), (4).

PILOT.

See LIVERPOOL PILOT ACT.

PIRATICAL ACT. See POLICY OF ASSURANCE, (1).

PLEA.

(1). In denial.

A declaration stated, that the plaintiff agreed with the defendant to serve him for three years, as manager of certain iron-works, at the salary of 4. per week, upon the terms, that the plaintiff would,

during that time, use his best endeavours to promote the interest of the defendant, and attend to and carry out all reasonable requests made to him by the defendant." The declaration, after stating that the plaintiff entered into such service, &c., alleged as a breach the wrongful dismissal by the defendant of the plaintiff from the service without any reasonable or probable cause, and the defendant's refusal to pay the plaintiff any salary after such dismissal. Plea: that the plaintiff did not, whilst he was in the defendant's employ under the agreement, use his best endeavours to promote the interest of the defendant, according to the agreement; therefore the defendant dismissed the any

plaintiff, and refused to pay him salary after such dismissal.

Held, on demurrer, that the plea was good. Lomax v. Arding, 734

(2). Partial Failure of Consideration. To an action by the drawer against the acceptor of a bill of exchange for 313l. 128. 9d., the defendant pleaded, except as to 108l. 158. 3d. parcel, that the bill was drawn and accepted in respect of the price of certain goods sold by the plaintiffs to the defendant, and for no other debt; that, at the time of sale, the plaintiff's promised the defendant that the goods should be of a certain quality; that he bought the goods and accepted the bill on the faith of the plaintiffs' promise; that the goods delivered were not of the quality specified but of inferior quality, and that they were of the value of 108. 15s. 3d. and no more; and that, save as aforesaid, there never was any value or consideration for the making or accepting the said bill of exchange: Held, on demurrer, that the plea was bad. Warwick v. Nairn,

(3). When good after Verdict.

762

To an action on a bill of exchange for 501., drawn by M. upon and accepted by the defendant, and by M. indorsed to the plaintiff, the defendant pleaded-first, that the bill was drawn by M. and accepted by the defendant, and indorsed by M. to the plaintiff, and the plaintiff first held the same for the special purpose of getting the same discounted, and to hand the proceeds thereof to the defendant; that the plaintiff, acting in fraudulent collusion with M., got the bill discounted, and, contrary to and in violation of the special purpose for which the bill was drawn, accepted, and indorsed, and for which the plaintiff first held the same, handed to the defendant 177. and no more, being part of the proceeds thereof; and that there never was any other consideration for the acceptance by

him of the bill, or for the plaintiff being the holder thereof: Secondly, as to 177., a tender of that amount: -Held, on motion for judgment non obstante veredicto, that the first plea, though informal, was good in substance, since it confessed a primâ facie title in the plaintiff by indorsement, and avoided it by shewing that he was the holder of the bill for a special purpose only, and without consideration.

Also, that the second plea was bad, for the acceptor of a bill of exchange cannot plead a tender after the day of payment.

A plea of tender ought not to be joined with a plea containing a denial of the right of action for the same Dobie v. Larkan,

sum.

PLEADING.

776

See BRISTOL WATER WORKS COM

PANY.

GAME.

GAMING CONTRACT.
ISSUABLE PLEA.

WAGER.
WAY, (2).

PLEADING SEVERAL MATTERS.

See EQUITABLE DEFENCE.

POLICY OF ASSURANCE.

(1). Causa proxima.

To a declaration on a policy of assurance on advances for the transport of Chinese emigrants from China to Peru, for their outfit and provisions, to be paid on the arrival of the emigrants at the port of destination, the perils insured against being "pirates, rovers, thieves &c., barratry of the master and mariners, and all other perils, losses, and misfortunes, &c.," in the usual form; the declar

VOL. X.

ation alleging a total loss by the emigrants piratically and feloniously murdering the captain and part of the crew, and feloniously stealing and carrying away the ship-the defendants pleaded, first, that, as soon as the emigrants had committed the murder and had obtained possession of the vessel, they steered for the nearest land, for the purpose of being landed, and refused to and would not proceed upon the and the voyage; vessel was then fit and able safely to proceed to the said port, and the remainder of her crew could have navigated her there, and were ready and willing to convey the emigrants there if they would have gone, but that they would not; and that, by reason of such refusal, and for no other cause whatsoever, the transport was never completed.

Secondly, as to the taking and carrying away of the vessel, that the emigrants were unwilling to be carried on the said voyage, and that they committed the murder and took possession of the vessel for the purpose of being landed and of escaping and from being carried on the voyage, and for no other purpose, which is the said piratical carrying away of

the vessel.

Held, on error, affirming the judgment of the Court below, that the murder of the captain and part of the crew, and the seizure of the vessel by the emigrants, as alleged in the declaration and admitted by the pleas, was, if not a piratical act, one ejusdem generis, and therefore within the perils insured against; and that, as the loss was complete at that moment and was never reduced, the unwillingness of the emigrants to proceed was not the cause of the loss, but was wholly immaterial; and consequently that the pleas were bad. Palmer v. Naylor,

382

(2). Construction of Warranty. Declaration on a policy of insurance, whereby a ship was insured "at and from New York to Quebec, during her stay there, thence to the United Kingdom; the said ship being warranted to sail from Quebec on or before the 1st of November, 1853." Averments, that, on the 15th of October, 1853, the said ship sailed from New York on her voyage to the United Kingdom, by way of Quebec, and whilst on such voyage, and before her arrival at Quebec, struck on certain rocks, and was totally lost. Breach non-payment of the sum insured. Plea: that, during the whole of the 1st of November, 1853, the vessel was at sea, proceeding on her voyage between New York and Quebec; that the loss took place several days after the 1st of November, 1853, and whilst the vessel was still proceeding on the voyage between New York and Quebec; that the vessel did not sail from New York until the 15th of October, and the time between that day and the 1st of November, was not, at that season of the year, reasonably sufficient to enable the vessel to comply with the warranty of sailing from Quebec on or before the 1st of November, 1853. On demurrer :-Held, that, according to the true construction of the warranty, there was no limitation of time as respected the voyage between New York and Quebec; but that, as to the voyage from Quebec to the United Kingdom, the underwriters were not responsible, unless the vessel sailed from Quebec on or before the 1st of November, 1853; and therefore that the plea was bad. Baines v. Holland,

POOR.

802

In August, 1836, the Poor Law Commissioners, by an order made under the 4 & 5 Will. 4, c. 76, di

In

rected the guardians of a certain union to appoint a collector of poor rate for the parishes comprised therein; and they also directed that he should be paid a certain poundage. Amongst other duties, he was required to pay the sums collected to the treasurer of the Union. July, 1847, and after the passing of the 5 & 6 Will. 4, c. 69, which incorporated the guardians of the poor, the abovementioned guardians, in pursuance of the above order, by a resolution of the board, appointed the plaintiff collector of poor rates for the Union at the poundage prescribed, which appointment was afterwards sanctioned by the Poor Law Commissioners. The 4 & 5 Will. 4, c. 76, s. 46, enacts, that the salaries of collectors shall be chargeable upon and payable out of the poor rates, and shall be recoverable against the overseers and guardians by all such ways and means as the salaries of assistant overseers or other paid officers of any parish or union are recoverable by law. The plaintiff collected the rate until 1850, and from time to time paid the monies so collected to the treasurer of the Union without retaining his poundage, which was paid to him by all the parishes except one. The plaintiff having sued the guardians for the amount :-Held, that they were not liable; for, being a corporation, they could not bind themselves, except by a contract under seal and, assuming that the appointment was valid, though not under seal, still the power to appoint to the office at a salary did not imply that the persons appointing should pay the salary, for the statute expressly made it chargeable on the poor rate.

Semble, that the plaintiff might have deducted his poundage from the sums collected. Smart v. The Guardians of the Poor of the West Ham Union, 867

PROMISSORY NOTE.

RAILWAY COMPANY. 971

PRINCIPAL AND AGENT. Where a principal authorises his agent to pledge his credit, and the latter makes a purchase on his behalf, and thereby creates a debt, the principal is not discharged by payment to the agent, if the money is not paid over to the seller, unless the latter, by his conduct, makes it unjust that the principal should be sued; as, for example, where the seller by his words or conduct induces the principal to believe that a settlement has been come to between the seller and the agent, in consequence of which the principal pays the amount of the debt to the agent.

To an action for goods sold, the defendant pleaded that the purchase was made by one T., the defendant's agent, and that the defendant, within a reasonable time after the sale, and not unduly early, bonâ fide paid T. sufficient money to pay the plaintiffs-Held, on demurrer, that the plea was bad. Heald v. Kenworthy,

739

PRINCIPAL AND SURETY.

See BOND.

GUARANTEE. INTERROGATORIES, (3).

PRIOR PUBLICATION. See LIBEL.

PROHIBITION. See COUNTY COURT, (1).

PROHIBITORY STATUTE. See CONVEYANCER.

PROMISSORY NOTE. See USURY, (2).

PROPRIETOR.

See COPYRIGHT.

RAILWAY COMPANY.

See CARRIER.

PASSENGERS ASSURANCE
COMPANY.

(1). Validity of Bye Law.-Passengers' Luggage.

6.

The 169th section of the 5 & 6 Will. 4, c. cvii., which incorporated the Great Western Railway Company, enacts, that, without extra charge, it shall be lawful for every passenger travelling upon the railway to take with him articles of clothing not exceeding forty pounds in weight and four cubic feet in dimensions; and that the company shall in no case be responsible for any things whatsoever carried upon the railway with any passenger, other than such passenger's articles of clothing, not exceeding the weight and dimensions aforesaid; Provided that nothing herein contained shall extend to make liable the company further than where, according to law, stage coach proprietors and common carriers would be liable." Section 144 enables the company to make byelaws "for the good government of the affairs of the company, and for the management of the said undertaking." The company made a byelaw, that every first-class passenger should be allowed to carry 112 pounds of luggage free of charge, but that the company would not be responsible for the care of the same, unless booked and the carriage thereof paid for :-Held, that the company had no power to make the byelaw, since it was in contravention of the 169th section. Williams v. The Great Western Railway Company, 15

(2). Liability of Company for Acci

dent to Passenger.

The defendants, a railway company, were in the practice of allowing the reporters of a London newspaper, when going to country races on the defendants' line for the purpose of framing their reports, to travel on the defendants' line carriage free.

The reporter was for such purposes supplied with a ticket by the company, which had written upon it the name of a person in the reporting department. The ticket also purported on the face of it to be not transferable; and there was also a memorandum on it to the effect, that any party, other than the person named in it, using the pass, would be liable to the penalty which a passenger incurs by travelling without having paid his fare, or that he should be liable to pay the fare; but it did not distinctly appear which of these two liabilities was stated in the memorandum, and, if the former, it did not appear what the penalties were which were alluded to.

The

plaintiff acting bonâ fide, and going on the business of the journal, and entitled by the usage to have the benefit of a ticket with his name on it, went to the station with a ticket such as that described. His name, however, was not upon it, but there was that of another person, who, however, was a reporter and in the same department with himself. The plaintiff shewed his ticket to the porter at the station, whose business it was to examine passengers' tickets, who said it was all right, and placed the plaintiff in a carriage. There was no distinct evidence, however, that the porter knew personally who the plaintiff was. It appeared that the plaintiff and other reporters had, on several occasions before, travelled with similar tickets not bearing

the names on them of those who used them; and there was evidence, that the persons whose names were on the tickets were personally known to some of the officers and servants at the station.

In an action by the plaintiff against the company for an injury received on their line whilst travelling in one of the company's carriages, in which the declaration alleged that "the plaintiff then lawfully was," and which allegation was denied by the plea; the question having been left to the jury, and a verdict having been found for the plaintiff :-Held, on error on a bill of exceptions, that there was evidence for the jury in support of the issue, and that the question was rightly left to them. The Great Northern Railway Company v. Harrison, 376

(3). Construction of Contract. The Great Northern Railway Company agreed with the plaintiffs to carry for them, at the rate of 170 tons a day, 30,000 tons of coal from a certain colliery to London, and to find waggons at the colliery, and haul them from York to London, the York and Berwick Railway Company undertaking to haul the waggons from the colliery to York; and it was further agreed, that the contract was founded on the basis that there should be no unreasonable detention of the waggons by the York and Berwick Company: Held, that it was a condition precedent to the defendants' obligation to carry the coal, that there should be no unreasonable delay by the York and Berwick Company in hauling the waggons. Johnassohn v. The Great Northern Railway Company,

434