PLATT, B.-I am not at all sure that the Legislature did not intend to give this advantage to those creditors who had been cheated. The rule will be discharged-there was nothing unlawful in this payment, which was made with a full knowledge of all the facts. that the judgment of Wightman, J. in that case was Nov. 16 and Dec. 8. is not final. [PARKE, B.-If the judgment is not #nal, it cannot be pleaded.] Whatever may be the determination of the court the plaintiff is entitled to judgment on one of the points. He cited Com. Dig. tit. County. c. 10, c. 13; Level v. Hall, Cro. Jac. 284; Plummer v. Woodburn, 4 B. & C. 625; Fry v. Malcolm, 4 Taunt. 705; Biddle v. Dowse, 6 B. & C. 255; Carpenter v. Thornton, 3 B. & Ald. 52. liberty to sign judgment against the now plaintiff for his debt and costs, to be paid 137. 4s. down, and 37. 88. costs on a day named, and the balance of the debt by monthly instalments of 57. each. Under this arrangement the plaintiff had paid 15l. down, and obtained his discharge, and he now brought this action to recover back the 157. on the ground that he was dis- MARTIN, B.-There is a great difference between charged from the debt under the order of the Insol- paying money and giving a security; and if money vent Court, and that the arrangement under which he has been paid, it cannot be recovered back. In Ex T. Jones, for the defendant. This court will not had paid that sum was illegal. The learned judge parte Hart, the court seems to have exercised a juris-reconsider the judgment of the Q. B. [POLLOCK, who tried the cause was of opinion that this action diction over the warrant of attorney, and the money C. B.-If we entertain doubts, we may send the case could not be sustained, and directed the jury accord-paid under it; but I think that it is not at all clear up to error with our opinions expressed, otherwise it ingly, reserving leave to the plaintiff to move to enter would go up to error with the additional authority of a verdict if the court should be of opinion that the our acquiescence.] The main ground for the decision action would lie. A rule nisi having been obtained, in Berkeley v. Elderkin is, that it was never intended Knowles, Q. C. (Massey Dawson with him) now by the Legislature that an action should be mainshowed cause.-Ashley v. Killick, 5 M. & W. 509, is tained on a Co. C. judgment contrary to the scope the case relied on by the plaintiff; but that case and principle of the Act. If the judgment in that materially differs from the present. There a bill of case is correct, on the ground that it would be against exchange was given, and an IOU; and it was held the policy of the Co. C. Act to allow an action on a that they could not be sued on. judgment, it results à fortiori that no action should be That transaction maintained on the original cause of action. When a was clearly within the 91st section of the Act; but it was a very different thing where money had been actually paid. In such a case there was nothing in the Act to enable an insolvent to recover it back. This money was paid by the plaintiff Viner with a full knowledge of all particulars. He was in prison at the time, under a lawful arrest, and not under duress. [MARTIN, B.-The strongest argument against you is, that the Legislature intended that the man should remain in prison as a punishment.] In that case there would have been no provision for giving bail. The Act provides that the insolvent shall not bind himself by giving a security; but there is nothing to prevent him paying a sum of money. Cause of action-County Court judgment—Action on. An action is not maintainable in a Superior Court upon a judgment in a County Court, established under 9 & 10 Vict. c. 95, or upon the same cause of action for which the plaint in the County Court issued. man has chosen his tribunal he cannot come a second time to another tribunal. Nemo debet bis vexari pro una et eadem causa is the principle that ought to hold here. Suppose a man were to proceed in the Co. C. for 80l. and were to recover 10. and were then to come to the Superior Courts, what is to become of the costs of the abandoned judgment in favour of the plaintiff? The defendant cannot get them. The result would be that the Superior Court would thus be made a court of appeal from the Co. C.; and the defendant would have no remedy or available means of getting rid of his liability for costs. The defendant is entitled to judgment on both demurrers. This was an action of assumpsit. The first count of the declaration was on a judgment obtained by the plaintiff against the defendant, in an action in the Co. C. of Durham, in which a verdict had been recovered 261. 4s. 2d. There was besides a count for money lent, and moneys had and received, being the same cause of action for which the plaint had originally issued in the Co. C. To the first count the defendant demurred; and to the second he pleaded a plea in bar that the causes of action were the same as those on which the plaintiff had recovered judgment in the Hawkins was called on in support. There are Co. C. To this plea the plaintiff demurred, and issue Unthank in reply.-This court may review the judg→ authorities nearly in point. The man was in lawful was joined on both demurrers. ment of the C. B., and give their opinion on the first custody; and that custody could not be determined Unthank, for the plaintiff. Two questions arise in count; therefore I desire to have the opinion of the till the expiration of the seven months. The Legis- this case. First, can an action be brought on a judg-court on both points. This is not a final judgment, lature intended that imprisonment as a punishment ment recovered in the Co. C.? And secondly, can an and upon that the judgments of Lord Campbell and for fraud. If it were otherwise, the creditor detain-action be brought for the same subject-matter for Crompton, J. were founded. The judgment may be ing him would have an advantage over the other altered. [POLLOCK, C. B.-Not all the judgment; creditors, as it would have the effect of giving the only the mode in which the sum recovered is to be detaining creditor the means of being paid in full. paid. There is first a judgment quod recuperet, and [PARKE, B.-An arrangement between the debtor then an order of execution.] The whole is but one and creditor is not prohibited by the Act. Surely, order, and the words "final and conclusive," used in a man who has another in custody may release him sect. 89, mean final and conclusive only in the Co. C. if he please.] The insolvent's property was vested in his assignees, and he had no right to dispose of this money; and it was illegal for the defendant to receive it. It was a fraud on the other creditors; and this money was paid under a new security. The judge's order, drawn up by consent, was a new security: (Ex parte Hart, 2 D. & L. 778.) In that case a warrant of attorney had been executed, and a sum of money had been paid by way of instalment, and another sum for costs; and the court ordered the warrant of attorney to be set aside, and the sums so paid to be refunded. [ALDERSON, B.-There the money was paid under the belief that the warrant of attorney could be enforced. This money was not paid under the belief that the judge's order could be enforced; for it was paid before.] Humphries v. Smith, 22 L. J. 121, Q. B.; Turner v. Darnell, 5 M. &. W. 28, were also cited. PARKE, B. For the purpose of considering this case, we must assume that the money paid was the money of the plaintiff. The question then is whether, under the circumstances, an insolvent may so pay money whilst in custody under lawful arrest, under the 85th sect. of 1 & 2 Vict. c. 110. We are all of opinion that he may; and if it was the intention of the Legislature that this imprisonment should be as a punishment, it certainly has not so expressed it. There is no authority for saying that money so paid can be recovered back. The case is different with a security; that comes directly under the words of the Act, and may be set aside; but it is different with money paid under that security; and Wightman, J. expressed doubts as to the propriety of making the rule absolute to refund the money in Ex parte Hart. ALDERSON, B.-This payment was voluntarily made, and cannot be recovered back; and I doubt the authority of the decision Ex parte Hart, as to the refunding the money. Cur, adv. vult. which the plaint in the Co. C. issued? The first point POLLOCK, C. B.-This was an action of assumpsit any cause of action was a bar to a suit in any other court for the same cause of action; but it was argued that the judgment of the Co. C. was not final, and therefore no bar to such a suit, because it was com petent to the Co. C. judge to vary it afterwards, by virtue of the 92nd and 100th section. Expressions at the close of Lord Campbell's judgment, in 1 E. & B. 805, to that effect, were made use of in the argument before us, to show that the Chief Justice was of that opinion. But we think that the expressions of Lord Campbell have been mistaken; we do not understand his Lordship to mean that the judgment was not final, in the sense that it was in the nature of an interlocutory judgment. We think it is a final and complete decision of the case to the extent of the amount of debt between the parties. In the Co. C. the decision as to the amount cannot be altered; it ought not therefore to be brought again into dispute by an action upon the original consideration, leaving it to a jury possibly to come to a different conclusion from that which has already been pronounced by a court of competent jurisdiction. Consequently we think the same question, whether the debt recovered was due, ought not and cannot be again litigated in any other court. The power of the Co. C. judge is not to vary the amount at all; the judgment, that part of it, the quod recuperet, is pronounced, and finally pronounced. All that the Co. C. judge can do is, to regulate the execution that may issue on the judgment. The judgment appears to be final and complete, and by no means in the nature of an interlocutory judgment; and it is therefore, in our opinion, a bar to an action on the same subject-matter in any other court. We therefore think the judgment on the whole record must be for the defendant. Judgment for the defendant. November 14. SYMONS v. EVANS ET Uxor. Co. C. appeal-Statute of Limitations—Acknowledgment in writing. "Sir,-1 beg to acknowledge the receipt of 101. in cash, and 171. 7s. 4d. by a bill, both of which sums I have placed to your credit:" Held a sufficient acknowledgment to take the case out of the operation of the Statute of Limitations. This was an appeal from the decision of a Co. C. judge. The plaintiff claimed 207. 128. 2d. and interest, and the defendants paid into court the sum of 31. 4s. 10d.; and as to the residue, 17. 78. 4d., contended that the claim was barred by the Statute of Limitations. The defendants were sued as the administrators of W. Jones, deceased. It appeared by the ease, that in 1845 the plaintiff borrowed of W. Jones 2007., for which he gave a promissory note signed by himself and two sureties. The following letter was produced, dated July, 1847, from W. Jones to the plaintiff; and this, it was contended, was sufficient to take the case out of the Statute of Limitations, as to the sum of 177. 7s. 4d. “Sir,—I beg to acknowledge the receipt of 107. in cash, and 177. 78. 4d. by a bill, both of which sums I have placed to your credit. I have enclosed your bill, which you will receipt, and return the same by post." On the death of Jones, the defendants, as his representatives, refused to allow the 177. 78. 4d., and an action was brought by them against the sureties to the promissory note, and the amount remaining unpaid was recovered, without credit being given for the 171. 78. 4d. mentioned in the letter from W. Jones to the plaintiff. The Co. C. judge thought the acknowledgment sufficient, and gave judgment for the plaintiff, against which the defendants now appealed. Willes, for the appellants.-This letter is not sufficient to take the case out of the Statute of Limitations. It is simply, I will give you credit for 107., and 17. 78. 4d. [PLATT, B.-I will pay you by giving you credit.] The promise to pay must be general, and not in any particular manner: (Ashby v. James, 11 M. & W. 542.) The same intention is expressed as to both sums. to one apply to the other; and it is merely giving credit as against the 2007. This is not an unconditional promise to pay. [POLLOCK, C. B.-It is an The words which apply unconditional acknowledgment that the money is owing.] The promise must be absolute and unconditional: (Routledge v. Ramsey, 8 A. & E. 221; Hart v. Prendergast, 14 M. & W. 741, were also cited.) S. Brown, for the respondents.-There can be no doubt that this is an admission sufficient to take the The note case out of the operation of the Act. intends an admission of the debt, and a promise to give credit for the amount. [He was stopped by the Court.] POLLOCK, C.B.-In looking at this note, we are bound to look at it as reasonable men, and not with that astuteness that leads to splitting hairs. Did not Jones, when he wrote the letter, mean, "I have received certain goods; I owe you the amount of the and I propose, as price of them, and I will pay you ; a convenient mode, that the amount should be set-off against the money you owe me"? In point of fact, it never was set-off; for it seems that the whole of the 2007. was recovered from the sureties. I cannot read the letter as proposing a method that fettered or imposed any conditions, and think the judgment of the Co. C. ought to be affirmed. PARKE, B.-I am of the same opinion. A conditional promise will not do; but an acknowledgment and a promise, accompanied with a suggestion of a convenient method of payment, will be sufficient to take the case out of the statute; and, on consider ing this note, I think the promise here was absolute. ALDERSON and PLATT, B.B., concurred. Appeal dismissed, judgment affirmed. GLYN v. ROBERTS. Judgment by default-Costs. Where a defendant suffers judgment by default, and whether that judgment be final or interlocutory, the plaintiff, although he recovers only a farthing damages, is entitled to his full costs under the 13 & 14 Vict. c. 61, s. 11 (the County Courts Extension Act.) This was an action of assumpsit for the improper cultivation of a farm: the defendant suffered judgment by default; the case was gone into before the sheriff, and the jury assessed the damages at one farthing. The plaintiff applied for his costs under the County Court Extension Act, 13 & 14 Vict. c. 61, s.11; the costs accordingly: (20 L. T. p. 92.) and, a rule having been obtained for the Master to tax Welsby showed cause.—The words of the Act mean a final judgment, not a mere interlocutory judgment like this, where there is a writ of inquiry. [MARTIN, B.-How can that be? That would include every action of assumpsit.] The 12th section, which gives power to the judge at the trial to certify, to entitle the plaintiff to costs, would favour the defendant's view of the present construction, that it only applied to cases 13th section does not. What are the cases putting of final judgment. [PARKE, B.-The language of the construction upon the words "whether there be a verdict in such action or not?"] That might mean a judgment on demurrer or final judgment by default. Alderson, B. referred this point to the court. MARTIN, B.-These cases have occurred at chambers several times I believe, and orders made. PARKE, B.-I scarcely know why they excepted "judgment by default;" but here it is in the Act certainly. REPORTS. Cases decided in the County Courts. LAMBETH. (Before J. PITT TAYLOR, Esq.) "I, R. C., engage that the work entrusted by A. B. to In this case, His Honour gave judgment as follows: This was an action brought upon a guarantee in the following form: "London, May 30, 1853. "I, Richard Cannon, hereby engage that the work entrusted by Mr. Dutton to John Bateman shall be properly done and returned within a week, or the value thereof paid by me." On these words two questions arose-first, was the instrument founded on a good consideration; and next, assuming it to be valid, was it a continuing guarantee? The first question turned on the meaning of the word "entrusted," which, taken alone, was capable of bearing three interpretations; for it might refer to materials him at the date of the agreement, or to be entrusted to either already entrusted to Bateman, or entrusted to him at some future period. In the first event the guarantee would be void, as based on a past consideration; in the other two cases it would be a legal contract. Now, I am by no means sure that I might not at the outset without calling in the aid of any extrinsic proof-have adopted that construction which would support the validity of the instrument, and have left the defendant, if he could, to produce evidence to show that the guarantee was void. Such a mode of dealing with the case would at least have been strictly in accordance with a recent decision in the Queen's Bench: Steel v. Hale: (14 Q. B. 431.) But at all events I surrounding circumstances for the purpose of explaining was clearly justified in admitting parol evidence of the the ambiguity of the language employed (see Goldshede v. Swan, 1 Ex. R. 154; Edwards v. Jevons, 8 Com. B. 436; Colbourn v. Dawson, 10 Com. B. 765; Bainentirely satisfied me that the "work" referred to in the bridge v. Wade, 16 Q. B. 89): and the proof given guarantee was not work that had been entrusted to Bateman prior to the date of the instrument. The guarantee, therefore, is valid; and the only remaining point to be considered is whether or not it can fairly be language, regarded apart from the circumstances of the treated as a continuing guarantee. Here, again, the parties, is obscure; for it may either mean that the defendant held himself responsible only to this extent, that the work entrusted to Bateman on the 30th of May should be properly done, and returned within a week from that date; or it may bear this construction, which Dutton should entrust from time to time to viz., that Cannon should pay the value of any work Bateman, provided such work was not returned in a proper state within a week from the time that it was given out. For the purpose of determining which of these two interpretations ought to prevail, I must take ment cannot be varied by parol testimony, it may into consideration the circumstances under which the guarantee was given; for, although a written instrualways be explained in that manner; and no rule of evidence is of greater value than that which permits a reference to the position occupied by a speaker or writer, in order to ascertain the sense of the words which he has used. What, then, are the facts in this case? Mr. Dutton is a shoemaker, employing a variety of hands, who are allowed by him to work up the materials which he supplies at their own homes. Mr. Bateman is a journeyman who is seeking to be engaged by Dutton, but who cannot induce that gentleman to entrust him with any materials, unless he can find some By the COURT.-The same practice will be observed as before the Act; in the Act of Parliament judg-person ready to give security for his industry and ment by default is specially excepted; the rule will honesty. Bateinan's object is not to obtain a solitary job, but to get permanent employment. Dutton's object is to get a regular hand. Cannon is appealed to, and there cannot be a doubt that he is made acquainted with all the principal facts. He goes to Dutton and signs the guarantee, and his friend Bateman is immediately taken into employ. All goes on smoothly for a month. Bateman is entrusted with materials, which he works up into boots, and returns to his employer. But on the 29th of June he has some more leather and lasts fur nished to him, and with these he absconds. Is Cannon liable to make good the loss occasioned by this misconduct? I have not the slightest doubt that the real intention of the parties was that he should be liable under such circumstances: and I have already shown 1854.] that the language of the guarantee is capable of bearing a construction which would render him liable. Still I am bound to admit that this construction is not the only one which can reasonably be put upon the words, and probably a person ignorant of the surrounding circumstances would interpret the instrument differently. If, then, the rule laid down by Mr. Baron Bayley in Nicholson v. Paget (1 Cr. & Mee. 48; 3 Tyr. 164, S. C.) be the correct one, and if, in his lordship's language, "it is the duty of the party who takes a guarantee to see that it is couched in such words that the party giving it may distinctly understand to what extent he is binding himself," I cannot hold that the defendant is responsible in the present instance. But, with every wish to respect the opinions of that very eminent judge, and especially when, as in the case just cited, those opinions form part of an elaborately written judgmentI cannot give my assent to the law as thus propounded. The doctrine seems to me to be totally at variance with the established maxim of the common law, which declares that verba fortius accipiuntur contra proferentem; it has not been recognized, so far as I know, by any other judge; and it is opposed to several cases which have been decided both before and since it was promulgated: (see Mason v. Pritchard, 12 East, 227; Mayer v. Isaac, 6 M. & Wels. 605.) In the case of Mayer v. Isaac, Mr Baron Alderson puts the matter, "The party," as it seems to me, in its true light. says he, "who makes any instrument should take care so to express the amount of his own liability that he may not be bound beyond what it was his intention that he should be; and, on the other hand, the party who receives the instrument, and parts with his goods on the faith of it, should rather have a construction put upon it in his favour, because the words of the instrument are not his, but those of the other party." It may, indeed, fairly be urged that these last words do not apply to the case before me; because the guarantee under discussion was not drawn up by the defendant, but was a printed form supplied by the plaintiff, to which Cannon merely added the names and date. It was, in fact, a form furnished by one party and adopted by the other, and the words may therefore be regarded as the words of both. It appears to me that, under these circumstances, the proper course to adopt is to reject alike both of the conflicting principles, and not to construe the instrument more strongly against one party than the other. My duty is to read the guarantee by the light of the circumstances with reference to which it was given, and to determine in this manner its real meaning. The very fact of the document being printed seems to me to indicate that it was not intended to exist for a single week: only and that circumstance, coupled with the other facts to which I have already alluded, leads me to the conclusion that the plaintiff's interpretation of the language is that which ought to prevail. I decide, therefore, that the instrument is a continuing guarantee, and that the plaintiff is entitled to the judgment of the court. DERBYSHIRE. RENDER v. DAVENPORT. Plea of bankruptcy-Notice. the deed of assignment had been executed by six- Bristowe, in reply, contended that the defendant, in His HONOUR Considered that the defendant had not complied with the act, in reference to the requisite notice of the deed or application to the Court; and it was therefore no bar to the plaintiff's claim. He accordingly gave judgment for the amount claimed, viz., 81. 18s. 6d. and costs. Judgment was also entered for 4l. 1s. 4d., the amount of Mr. Kenny's claim. JONES v. WINSTONE. This was an action brought by John Jones, of Llantrissant, against John Winstone, landlord of the Queen's Hotel, St. Mary-street, Cardiff, to recover the sum of one guinea, due by Winstone to Jones, but which sum the latter failed to obtain. Williams, who appeared for the plaintiff, said, that a brown mare had been lost from a field near Canton, and Winstone caused bills to be circulated relative to her loss, and promising a reward of one guinea to any one Mr. Richard Evans Spencer said,-I applied to John Williams-What did he say? Mr. Spencer. He said he could not pay on that day, 15 for 31., to H. Ransom, of the ship John Ormerod, dated would not let in the evidence tendered. He cited His HONOUR held that the act simply admitted certain documents to be evidence, which, in the absence of the provision in the act making them such, would not be receivable,-it did not preclude that evidence being given, which, independently of such He should therefore permit documents, would be legally sufficient to prove the the examination to proceed. Dawkins then further stated, that he was on board the desertion of the seamen. Eolus the night before she sailed, and that the ship was weighing anchor when he left at about six o'clock men aft. The owner was there and the captain. He took the ship's articles, and called each man's name in the morning. When he got on board he called the When he called the names the owner wrote down over. the names of those who did answer to their names. not answer. Did Henry Johnston?-I cannot tell. The complement all answered, to the number of twentytwo, including boys and all. Peter Jones, I believe, did After that was done, I went down into the cabin and and gave it to Parry. Other questions, not very macopied a list from the list made by the owner when the men answered to their names; and I brought it ashore terial, were put to the witness. On cross-examination I am certain eight or ten, he said, "I cannot say who answered to their names. The whole complement, to the number of twenty-two, answered to their names. or more on the list, did not answer to their names." His HONOUR told the jury, it was a very simple question submitted to them. It was for the defendant to prove that the men had deserted. The last witness was unable to tell the names of the seamen who were present, or of those who had entered and afterwards GEORGE BIRD v. RICHARD WATTS PARRY. deserted. If they were of opinion that the desertion of the men named was not proved, they would find for the Seamen's advance notes. Mr. Tripp appeared for the plaintiff to the amount sued for. Verdict was given for the plaintiff. This was a jury cause. Mr. W. plaintiff, and Mr. Bird for the defendant. Owen, Mr. Thomas Phillips, Mr. P. Rees, Mr. John Hibbert, and Mr. E. Williams were the jury. This was an action for 77. 10s., on account of seamen's advance notes discounted by plaintiff. The stat. 14 & 15 Vict. c. 96, s. 17, provides that when any A deed of arrangement does not bind creditors who advance note is discounted for any seaman, such seahave had no notice of the same. These causes were taken together, the defence being the same in each case. The debts were not disputed. The plaintiff, Mr. Render, of Manchester, oil and tallow merchant, appeared by Mr. Bristowe, instructed by Mr. W. Allen, of Derby. Mr. Kenny appeared in person, and Mr. Borough, attorney, conducted the defence. Borough submitted to the court, that the defendant having made a deed of assignment for the benefit of his creditors, the plaintiffs were precluded from enforcing their claims by the 224th and 225th sections of the Bankruptcy Law Consolidation Act, which enacts, that any deed of arrangement entered into between any debtor and his creditors, and executed by six-sevenths in number and value of the creditors whose debts amount to 101. and upwards, shall be binding on all, after the expiration of three months from notice of the deed being executed. Bristowe objected to such evidence being offered, no notice of the defence having been given, as required by the 76th section of the County Courts Act, 9 & 10 Vict. c. 95. His HONOUR, after hearing Mr. Borough, decided that such notice ought to have been given, and intimated that he would adjourn the case, to enable the defendaut to give the notice; when the plaintiff's counsel consented to waive the objection, and proceed with the case. Borough then called the defendant, Mr. Ebenezer Walker Davenport, silk manufacturer, who proved that sue for the amount of the note. THEOPHILUS HOSKINS v. JOHN DRISCOLL. This was an action for 381. In this case there was a jury at the request of the defendant. Trip appeared for the plaintiff, and Bird for the defendant. On the 6th of November, 1852, a charter-party was man shall sign or set his mark to a receipt endorsed on to him. If the seaman sails in the ship, from the made between the plaintiff, the master of the Rebecca the note, stating the sum actually paid or accounted for port of departure mentioned in the note, and is then Lang, of Padstow, burthen sixty-eight register tons, "the port of destination, at the option of the freighter, duly earning his wages, or is previously discharged then at the port of Rouen, and Mr. H. Prevost, of with the consent of the master, but not otherwise, the Rouen, to load with a full cargo of potatoes in bulkperson discounting the note may, ten days after the The freight was to be on signing the bills of lading." He may sue and final departure of the ship from the port of departure, to be named before leaving the river Seine, if not done recover the amount promised by the note, with costs, 10s. a ton, "besides one guinea hat-money if the either from the owner or the agent who has drawn or ship were ordered either to Newport, Cardiff, Swansea, authorized the drawing of the note, either in the Neath, or Hayle, and three guineas hat-money if the County Court or in the summary manner in which sea-ship were ordered to Bristol." Sixteen working days men are, by the General Merchant Seamen's Act, enabled to sue for and recover wages not exceeding 201. In such proceeding it is sufficient for the plaintiff to or some other authorized agent, and that the same was prove that the note was given by the owner or master, discounted to and receipted by the seaman. be presumed the act declares "that the seaman has sailed with his ship from the port of departure, and to be duly earning his wages, unless the contrary is proved either by the production of the register ticket, or by the official statement of the change in the crew caused by Mercantile Marine Act, 1850, is required, or in some his absence, made and signed by the master, as by the other manner." In this case, three notes had been given to seamen, named Henry Johnston, H. Ransom, and Peter Jones. Two were for 26. 5s. each to seamen It is to were to be allowed for loading and delivery, or 21. sailing. The captain did not receive them, at Port Isaac, until the 11th: he sailed from Falmouth on the 14th, and arrived at Cardiff on the 17th of December. Forty-two pounds had been paid to the plaintiff for freight and hat-money, and he now sued for damages on account of loss sustained by the detention at Falmouth in consequence of orders not having been sent to him at Port Isaac. The captain was absent from the vessel twenty-five days. In his evidence he contended, that, by his charter-party, he had no right to pass the port of Hayle, which is below Padstow, in the Bristol Channel, until he received orders at Port Isaac; and that Falmouth was the only safe harbour nearest to the Bristol Channel to which he could take the vessel. After the evidence in the case had been heard, His HONOUR said, that as it was not contended the vessel had been taken to Port Isaac, the question to decide, before any other question for the jury relating to the detention at Falmouth could arise, was the construction to be put upon the terms of the charter-party and the bills of lading. What was the place of the destination of the vessel ? It was the duty of the consignee to ascertain the arrival of the ship: but where? Was it not at Port Isaac, for Falmouth is not named? Tripp contended that it was sufficient for the master to proceed personally to Port Isaac to obtain his sailing orders. His HONOUR said he could not come to that conclusion. If orders were to have been given this side the Channel, was the vessel to have been left at Falmouth? After considerable discussion, he said he wished some suggestion to be made to prevent any future expense if his opinion were wrong. Bird said he was willing, on the part of the defendant, if there were an appeal, that the damages should, if the judge's decision were set aside, be assessed by the judge from his notes of the present trial. Tripp declined to assent to this proposal. His HONOUR again asked Mr. Tripp if he would suggest any course that it was desirable to pursue; and he replied, he saw his opinion was against him. The Judge expressed his willingness to listen attentively to whatever might be addressed to him. No answer being given, his Honour, adhering to the construction he gave to the terms of the charter-party and bill of lading, nonsuited the plaintiff. Some discussion afterwards arose respecting the practice in the courts relating to nonsuits. Notice of appeal was given the next day. Morgan appeared on behalf of the company, and Monckton for the defendant. Morgan said the action was brought under the 20th section of the 55 Geo. 3, c. 194, and in order to bring the offence within this statute, he should prove that de fendant attended three persons, two named Martin, and the third Copleston, for medical as distinguished from surgical cases; that he supplied medicine to them, and subsequently gave certificates of the death in his own handwriting to the parents, who deposited them with the registrar of births and deaths, which was a very material point in the action, as the certificates showed the nature of the disease of which the persons died. It was well known that the defendant had for many years practised in this way, and up to the present time evaded the law. After remarking upon the injustice rendered by this practice to those gentlemen who had been regularly qualified, Mr. Morgan observed that it might be suggested that this action had arisen from jealousy, but he thought the court would agree with him that it was their duty to endeavour to put a stop to this practice. He could cite several cases of the kind reported in the County Courts Chronicle and the Lancet. (His Honour however, did not think them any authority to rely upon.) It might, he (Mr. Morgan) said, be set up in defence that the medicine was not paid for; but he apprehended that would not be considered any answer whatever, as it was perfectly ridiculous to suppose that he attended and supplied the medicine gratuitously. Mr. Morgan then called James Martin and his wife, living in Sheppy-street. Maidstone, who stated that in September last two of their children were taken ill, and were attended by defendant. The father fetched one bottle, containing medicine, as he supposed, from the defendant, after one of the children died, and the other child took a small portion of it and died subsequently. They had not paid for any medicine or attendance, nor bad they received any bill. Defendant left two papers at the house, which they took to Mr. Ruck, the registrar. In cross-examination these witnesses stated that the children were taken ill suddenly, and defendant was applied to at night, while in bed, when he got up, and on seeing the children at once said he could do nothing for them. One of them died that night and the other on the following day. Defendant had twice previously attended Mrs. Martin in her confinement. Neither of them could say what the bottle contained, or that defendant gave any directions respecting it. Edwin Ruck, son of the registrar, identified the certificates produced as having been brought by James Martin. | Mr. Joy, surgeon, stated that he had been a licentiate of the Apothecaries' Company for twenty-six years. From correspondence he had had with Mr. Baldwin he believed the certificates produced were in his handwriting. (This was admitted by defendant's solicitor.) The causes of death assigned in them were hoopingcough and inflammation of the stomach, which fell purely within the province of apothecaries, and were not surgical cases. Morgan said that was his case. Monckton was about to address the court for the defence, when his Honour said that the plaintiffs must be nonsuited. Morgan asked on what grounds? His HONOUR said that there was no evidence whatever to show that defendant was practising for profit. On the same ground the court would have a right of action against every person, living in remote parts of the country, who kept medicines to give away to poor persons. There was no evidence also to show that the bottle contained medicine; it might have contained brandy or wine and water. Morgan said it was an impossibility to prove what the contents of the bottle were. He would now go into the other case, in reference to Copleston. Monckton contended that Mr. Morgan's case was ended. His HONOUR held the objection to be good, as separate summonses should have been issued to the parties. Morgan contended strongly that he had a right to go into the other case, and said he could show by the reports to which his Honour had refused to allow him to refer, that it was the usual practice to include three or four cases. His HONOUR said that as three persons were included in one summons, and as Mr. Morgan had said "that is my case," he was not entitled to proceed with the case of Copleston. Morgan said he intended the case as regarded Martin. He hoped his Honour would not allow the ends of justice to be defeated by such a frivolous mistake on his part. His HONOUR said that justice would not be defeated, as defendant might be summoned at the next court. Monckton said he would withdraw the objection, but His HONOUR said, in his opinion, it was one that ought to prevail, and refused to allow Mr. Morgan to proceed. Monckton then applied for costs, and said he believed they were entitled to double costs. Morgan denied this. His HONOUR said he should look to the act of Parliament, and if, in his opinion, it gave him the power, he should grant double costs. He thought it exceedingly strange that no solicitor attended from the Apothecaries' Hall. MONTGOMERYSHIRE. LLANFYLLIN, November 26, 1853. (Before E. L. RICHARDS, Esq., Judge.) DAVIES V. PErrott. Action for false imprisonment-Evidence. This case was adjourned from the October court, for the purpose of having it tried before Mr. Richards, who was then absent through illness. A jury was impannelled to try the cause: Mr. Buckton, of Wrexham, appearing for the plaintiff, and Mr. J. Jones Thomas, of Oswestry, for the defendant. Buckton said, this is an action brought to recover the sum of 50%., as compensation to the plaintiff for the wrongful imprisonment he suffered in Montgomery gaol, from the 8th of March last to the 5th of April in the present year. It appeared that on the 8th of October, 1851, Mr. Perrott, the defendant, heard some shots fired on the Glanbrogan Hills, over which he had the right of shooting, that he went towards the place where the shooting apparently was, and near there he saw two men with a dog and gun, who, as soon as they perceived him, made off with all haste and eluded his pursuit. Mr. Perrott afterwards attended before the Commissioners of Taxes, at the Mount Inn, Llanfechan, and there upon his oath charged the plaintiff, and one Richard Roberts, who was the plaintiff in a similar action, with being the parties whom he saw on the Glanbrogan Hills on the 8th of October, in pursuit of game, with dog and gun. Upon this evidence plaintiff and Richard Roberts were surcharged in double duty; but such duty was not paid, although demanded by the collector. Nothing more was heard or thought of the case until the 8th of March, in this year, when plaintiff and Richard Roberts were taken into custody, under a warrant from the Commissioners, and lodged in Montgomery gaol, to the infinite surprise of themselves and their friends; there they remained until the 5th of April, when they were discharged upon payment of the surcharges and costs. Previous to the payinent of the money, a strong impression, originating in what had been said by a person upon his death-bed, had arisen in Llanfyllin and its neighbourhood, that the plaintiff and Richard Roberts were not guilty, and that Mr. Perrott was mistaken in the identity. A memorial was prepared, numerously signed, and sent to Lord Palmerston for his consideration. This memorial, supported by a letter from Martin Williams, Esq., of Brongwyn, to the noble Viscount on the same subject, had the effect of causing his lordship to order the release from prison of the plaintiff and Richard Roberts The release reached the governor of Montgomery gaol after his prisoners had been discharged by payment. The amount of surcharges and costs was, a few months after, returned. The plaintiff was wrongfully imprisoned, he was innocent of the crime imputed to him. He was not in pursuit of game at all on the 8th of October, nor any other day. Mr. Perrott was mistaken in his men, and was the cause of an innocent man being imprisoned for a month. The plaintiff now seeks at your hands, gentlemen of the jury, compensation for such imprisonment, and I trust you will be of opinion that the 50l. claimed is little enough compensation for the outrage my client has sustained. Thomas, at the close of Mr. Buckton's speech, took an objection to the form of the declaration, and said that it did not, upon the face of it, disclose any cause of action; because there was no allegation that Perrott, at the time he made representations, knew they were false, and the knowledge by the defendant that his representations were untrue was the gist of the action. His HONOUR.-I will take a note of the objection, but I will not stop the cause upon it. Buckton then called Richard Roberts, and was proceeding to examine him as to what Mr. Perrott said before the Commissioners of Taxes, when Thomas objected to the reception of such evidence, as it was, he said, inadmissible. This appeared to be the main point of the case, as both advocates contested it resolutely. Considerable discussion took place; after which, His HONOUR said he could not receive evidence of what Mr. Perrott said before the Commissioners of Taxes. To admit such evidence would be to set up the County Court as a court of appeal from the decisions of the Commissioners, and he had no power to do that. Buckton then called witnesses who proved the facts as stated in his opening speech, and also one William Mansell, who proved that he and one Devereux Mytton, since dead, were, on the 8th of October, 1851, shooting upon Glanbrogan Hills, and Mytton shot a pheasant. They afterwards saw Mr. Perrott, and ran away from him as fast as their legs would carry them. This was the case for the plaintiff. Thomas said, if that be the plaintiff's case, I hardly know what to make of it. I came into court prepared to defend Mr. Perrott from the charge of making false representations. I have listened patiently to all the evidence my learned friend has produced. His witnesses have had all their own way, for I have not crossexamined one of them, and yet there is no evidence whatever of what Mr. Perrott said, or that he ever said anything at all, or even opened his mouth upon the subject, and I feel, therefore, that it would be useless for me to address the jury, as there is no case to go to them. His HONOUR.-Mr. Buckton's case rests upon what Mr. Perrott did,-that his actions caused the imprisonment. Thomas. Yes, but the action is brought for what Mr. Perrott said. Even if it were for what Perrott did, yet there is no evidence whatever to show that what he did was wrong. The plaintiff has not, nor has Richard Roberts, dared to go into the witness box and swear that they were not sporting upon the Galbrogan Hills on the 8th of October, 1851. His HONOUR addressed the jury, and said: I have allowed the plaintiff's case to go on, notwithstanding the legal objections that have been urged against it, in order to see whether there was evidence to convict Mr. Perrott with, but I am bound to tell you that there is no evidence of the kind, and the plaintiff must be nonsuited. I will, however, give Mr. Buckton leave to move at the next court to set aside the nonsuit, and I shall reserve the question of costs, but some of them I shall certainly order Mr. Perrott to pay. The case appeared to excite great interest in Llanfyllin and its neighbourhood. The court was densely crowded during the trial. SOMERSET. (Before J. G. SMITH, Esq.) SMY v. PARKER. Action to recover expenses of replevying an illegal distress-Costs of Attorney allowed on judgment of 41. This was an action to recover the fees paid to the sheriff, and expenses incurred in replevying the goods of the plaintiff, alleged to have been illegally distrained for rent by the defendant, such fees and expenses amounting to 4l. From the evidence, it appeared that the defendant originally rented a house in Peter-street, Bath, of Mr. Harvey, at 167. a year, but previous to Lady-day last he applied to the latter to take it off his hands. Subsequently, and before Lady-day, the defendant let the house to the present plaintiff, who agreed to take some fixtures at the price of 41., which the defendant requested him to pay to Mr. Harvey, the landlord, for the rent due at Lady-day. This was done, and the plaintiff stated he then considered that there was an end of the defendant's tenancy, and that he became the new tenant. A few days after this, however, the defendant, who had left Bath, demanded of the plaintiff the quarter's rent, whereupon the receipt of Mr. Harvey for the rent paid by the plaintiff was produced, but the defendant, notwithstanding, caused a distress to be levied on the plaintiff's goods. They were replevied, and the goods returned, for which the plaintiff had to pay, at the sheriff's office, 31. 3s., for the valuation 10s. 6d., and 5s. 6d. to the bailiff. It was for these expenses, incurred by the plaintiff in obtaining restoration of his goods, wrongfully taken, as it was contended, under an illegal distress, that the present action was brought. Gibbs, for the plaintiff, contended, that under the circumstances stated the distress was clearly illegal, and that the plaintiff was entitled to recover from the defendant the expenses he had been put to in obtaining a return of his goods, the only method of doing which was by replevying. Whitefield (Bristol) for the defendant, cross examined the witnesses with the view of showing there had been no legal determination of the tenancy between the original landlord and the plaintiff, and that the plaintiff was still the tenant of the defendant, and contended that, this being so, the defendant was justified in levying the distress. Some observations were made by the Court, deprecatory of the defendant's proceedings in making the distress, and a discussion ensued, the defendant's solicitor stating that his positive instructions, both written and verbal, were, that Mr. Harvey, the landlord, still held the defendant liable for this very rent, and had refused to release him, or to accept the plaintiff as the new tenant; but Mr. Harvey, the landlord, was called, and proved the opposite of this, and that he had accepted the plaintiff as his tenant, and considered he had no claim against the defendant for the rent, and never intended to make any. His HONOUR said he had no doubt Mr. Whitefield had been misled, and he entirely exculpated him from blame, or the least want of professional candour, but on the part of the defendant, anything more audacious than his conduct in seizing the plaintiff's goods after having himself told him to pay Mr. Harvey, and having the receipt produced to him, had hardly ever fallen within his experience. Judgment for 41. and costs, including costs of attorney. Immediate payment. BATH, October 8, 1853. MIXEN v. Dovey. Plea of infancy, in action of tort, overruled. In an action to be recouped, the amount of damages and costs recovered against the plaintiff by a third party in another court, the original amount of the debt sued for in the other court, and not the costs added to the debt, are recoverable, as the plaintiff, seeking to recover over, should have paid the original claim on demand without suit. In this case, which was an action for damages to recover 241. 125., the amount the plaintiff had paid in an action against him in another court, which he had defended, but unsuccessfully, in consequence of negligence by the plaintiff's servant (the defendant in the present action) in driving the plaintiff's mail-cart against the horse and fly of one Mr. Mees, and which had been repeatedly adjourned upon the question of admitting the plea of infancy. Wilton, for the defendant, urged against the plea of infancy, by which it was contended he was legally incapacitated as a contracting party, and therefore could not be sued for a breach of contract as a servant in the plaintiff's employ. His HONOUR overruled the plea, and treated the case as an action of tort. The plaintiff was then called to prove the damages he had sustained by the action brought against him by Mr. Mees in the Frome Court, in consequence of the defendant's carelessly and recklessly driving the plaintiff's mail-cart against the horse and fly of Mr. Mees. An office copy of the order of the Frome Court, showing the amount of debt and costs recovered against the plaintiff by Mr. Mees to be 247. 12s., was produced, but it was objected that the plaintiff could only recover the original amount of damage claimed by Mr. Mees, because the plaintiff ought to have paid this, in the first instance on demand, without suit, and without compelling Mees to have taken proceedings, whereby the original amount was increased from 141. 168. to 247. 12s., the sum now sought to be recovered here. His HONOUR concurred in this view, and gave judgment for the plaintiff for 147. 16s., the amount of damage proved to have been originally claimed, exclusive of the costs of the first action, and allowed the costs of the present proceedings. Judgment for 147. 16s. and costs. STAFFORDSHIRE. NEWCASTLE-UNDER-LYME, September 27, 1853. (Before R. G. TEMPLE, Esq.) CLARKE V. CARLISLE, Tippling Act-Promissory note-Consideration. A promissory note the consideration for which is liquor sold contrary to the Tippling Act, is prinâ facie valid-inasmuch as that act does not make the consideration illegal, but only takes away the remedy. Claim for 121. principal money due upon defendant's promissory note, payable on demand. Slaney (for the plaintiff.) The Ward, W. W. (for the defendant.) The payee sued the maker of a promissory note given principally for liquors sold to the defendant and his workmen under the following circumstances. defendant is the sub-contractor for the erection of a new gas works within the borough, and in excavating for such works a considerable quantity of water rushed upon the men and there continued, notwithstanding their efforts by means of an engine and other apparatus to remove it. The men were obliged to work half immersed in water, and consequently were almost perishing, and could not have continued their work unless they were plentifully provided with stimulants. The defendant sent them to the plaintiff's house and requested her to supply them with liquors on his account, and frequently accompanied them and partook of the liquors himself. This went on until upwards of 121. was owing, and as the plaintiff's rent-day was near at hand, she applied to defendant for payment-he promised her the money by the rent-day, but failed in performing his promise. The rent not being forthcoming, the landlord distrained, and whilst the bailiffs were in possession the plaintiff again applied to the defendant for payment; he stated that he had no money, but suggested giving a bill or note which she might get discounted-and immediately he became possessed of funds he would meet it. The note in question was then prepared, signed by the defendant, and witnessed by one of the bailiffs and another party who was then in the house. The plaintiff could not succeed in discounting the note, and therefore paid the bailiffs from another source, and soon after commenced the present action. Ward contended, that as between payee and maker the consideration might be questioned, and inasmuch as it was admitted that such consideration was the sale of spirituous liquors, the action could not be maintained: (24 Geo. 2, c. 40, s. 12.) Slaney contended that the 24 Geo. 2, c. 40, s. 12, was passed to prevent tippling only, and did not contemplate the present case, where the liquors were absolute necessaries, and therefore the acknowledgment ought to be maintained. His HONOUR ruled, that the Tippling Act did not make the consideration arising upon the sale of spirituous liquors per se illegal, but only took away the remedy, and that the promissory note was prima facie valid: also, that there was a sufficient consideration to support the note, by reason of the plaintiff's forhearance in not suing the defendant upon the liquor account, and gave judgment for the plaintiff, with 41. 13s. costs, and ordered payment forthwith. NEWCASTLE-UNDER-LYME, October 18, 1853. (Before R. G. TEMPLE, Esq.) PIERCE v. REEVES. Where an action is originally conmenced against several defendants, one of them cannot be committed for non-payment of the whole amount of debt and costs. The plaintiff and defendant each appeared in propria persona. The plaintiff obtained judgment against the defendant jointly with four other persons at the Hanley County Court on the 27th October, 1852, for 4l. 10s. 4d. debt, and 17. 98. 10d. costs. He subsequently issued two executions, the costs whereof amounted to 17. Os. 2d., and under those executions realized 37. 10s. 2d., just one half the debt and costs. The other half remained unpaid, and for this sum plaintiff issued a summons against this defendant alone, under section 98 of the 9 & 10 Vict. c. 95, and pressed for a committal. The defendant stated his willingness to pay his share, one half of the amount still remaining due, and the costs in respect thereof, and tendered that sum in court; and His Honour held that the 9 & 10 Vict. c. 95, s. 68, wherein it was provided that one of several persons jointly liable might be sued alone, applied to cases only where the plaintiff originally proceeded under that section; but inasmuch as the plaintiff here had elected to proceed originally against the whole of the defendantsobtain judgment against each of them-issue executions upon the judgment-and, under those executions, realize part of the debt and cost, he could not now select one, and commit him for the whole sum still remaining due. The defendant was, therefore, ordered to pay 17. 158. 1d., and 6s. 4d. costs forthwith, and the summons was dismissed. No expenses were allowed to the plaintiff. HANLEY, November 23, 1853. (Before R. G. TEMPLE, Esq., Judge.) MACGUIRE V. THE NORTH STAFFORDSHIRE RAILWAY COMPANY. Liability of Railway Comgany for damage done to goods, and non-delivery at a particular time. A consignee of goods sent by a consignor by a railway company from a distant place may sue the railway company who were to deliver them to him, for damage resulting thereto, whether such damage actually arise by the act of the latter company or not. Ward, for the plaintiff. Keary for the defendants. Claim for 97. 18. 6d. damages, alleged by the plaintiff, a fishmonger at Burslem, to have been sustained in consequence of the non-delivery of three casks of herrings at a particular time and by a particular train on the 28th July last, and also for the value of another quantity of herrings which were damaged in consequence of the barrel in which they were packed having the end knocked out, and the herrings being scattered about the truck upon its arrival at Burslem on the 19th August last. The goods would have to travel on several different lines before they would arrived at Burslem. For the defence it was contended that it was not shown that the delay that had arisen was the act of the defendants, and that as to the damage, there was no proof that the casks were delivered to the defendants in good condition. His Honour remarked that this case, like many others which came before him, was conducted on both sides in a loose manner, but of which he ought not perhaps to complain, as it relieved him of a certain degree of responsibility, although it created considerable difficulty in the way of coming to a satisfactory conclusion; but looking at the case as involving questions of public importance, he would take time to consider and give his judgment at the next court. JUDGMENT. This was an action brought by the plaintiff, a fishmonger at Burslem, against the North Staffordshire Railway Company, for damages alleged by the plaintiff to have been sustained in consequence of the nondelivery of three casks of herrings at a particular time, and by a particular train on the 28th July, and also for the value of another quantity of herrings which were damaged by the barrel in which they were packed having the end knocked out, and the herrings scattered about the truck upon its arrival at Burslem on the 19th August. This case, like many others which are brought into this court, was laid before me on both sides in rather a loose manner, but of which, perhaps, I ought not to complain as it relieves me of a certain degree of responsibility, although it creates considerable difficulty in the way of coming to any satisfactory conclusion. The facts of the case, as proved, were that the plaintiff was in the habit of having fish sent to him by |