INDEX

TO

THE PRINCIPAL MATTERS.

allowed to leave any station (local or foreign), unless a guarantee is first obtained by the clerk in charge, from the consignee, that the grain will be immediately discharged, and the sacks returned the same day, and to the same station:"-Held, that the company's claim for demurrage arose at the expiration of fourteen days from the hire of the sacks; and that the only person with whom there was any contract for demurrage was the consignor, by virtue of the 3d regulation; but that, by the operation of the 10th regulation, his liability ceased upon the company's permitting the sacks to get into the hands of the consignee, whether with or without a guaranThe Great Northern Railway Company

tee.

6.

of fair average Nicranzi rice, the price of which is to be 118. 6d. per cwt., with a fair allowance for Larong or any other inferior description of rice (if any); but the seller engages to deliver what is shipped on his account and in conformity with his invoice. The buyer to have the option, agreeably with the terms of the charter-party, of discharging the rice at any good and safe port in the United Kingdom, or on the continent between Havre and Hamburgh, both inclusive. This contract to be void provided the above vessel makes the intermediate voyage between Akyab and Calcutta agreeably with the conditions of the charter-party. Payment to be made in cash on the arrival of the vessel at port of call, in full, less freight, at invoice net weights, &c., on handing the buyer bills of lading and charter-party, with the policies of insurance, endorsed to buyer, for full value, which are to be effected in London, with particular average in the usual way, free under 3 per cent. Should the vessel be lost, this contract to be null and void :"-Held, a warranty on the part of A. to deliver a cargo consisting of "fair average Nicranzi rice," provided neither of the events occurred in which the contract was to be void. Simond v. Braddon,

324

Goods "expected to arrive."]—A. contracted to sell to B. 1170 "bales" of gambier, now on passage from Singapore, and expected to arrive in London, viz. per Ravenscraig, 805 bales, per Lady Agnes Duff, 365 bales:Held, a warranty that the goods were on passage. Gorrissen v. Perrin,

681

v. Wyles, 344 3. Conditional order.]—A. having applied to B., a coachmaker, to build for him a carriage of a particular description, the latter at his request sent him a drawing, which A. returned with objections. B. thereupon wrote to A. expressing his regret that the drawing sent did not meet his approbation, adding-" if you order, every attention shall be paid to any particulars you may think proper." A. in answer wrote, "I have duly received your reply to my last, and can only continue to wonder at your disinclination to furnish me with so simple a drawing as I then requested, with the view of obviating as far as possible the chance of any misconception which might otherwise arise in respect of my order, which I can now of course give in general terms only, and on the assumption that you undertake to execute it in a manner which shall meet my approval, not only on the score of workmanship, but also that of convenience and taste." The carriage was thereupon built and forwarded to A., who found many faults in it, and rejected it-Held, that the order having been given and accepted on the express condition that the carriage should meet the approval of A. "on the score of convenience and taste," the latter was entitled (acting bona fide, and not from mere caprice) to reject it. Andrews v. Belfield, 4. Market value.]-By a written contract, the plaintiffs agreed with the defendant to make for him a covering for a tent of very large dimensions, the canvas used to be equal to pattern, and of the market value of 11d, per yard, and the making to be charged at 5d. per yard; and it was agreed, that, if the market value of the canvas should be less than 11d. Under the 222d section of the Common Law Pro

779

per yard, the amount (the difference) should

7. Quare, as to the extent of the vendor's liability on a sale of goods "expected to arrive" by a particular ship, where goods of the description contracted to be sold do arrive, but are consigned to a third party? Ib. 8. Evidence to explain.]—Held, also, that evidence was admissible to show, that, by the usage of the trade, a "bale" of gambier was understood to mean a package of a particular description; and that the contract was not satisfied by a tender of packages of a totally different size and description. 16. And see LETTErs Patent, 1-5.

ALIEN ENEMY.
Contract with,-
-see WAR.

AMENDMENT.

cedure Act, 1852.

be deducted:--Held, that "market value" 1. Of writ under the Bills of Exchange Act,

meant the price in the market to an ordinary consumer, irrespective of the particular contract.

Orchard v. Simpson,

299

5. Warranty.]-A. agreed to sell to B. "a cargo of Arracan rice per Severn, now on her way to Akyab, viâ Australia; the cargo to consist

1855.]-A writ issued under the Bills of Exchange Act, 1855, 18 & 19 Vict. c. 67, in a case which is not within the act, the bill or note having become due and payable more than six months before,-may, by virtue of the 222d section of the Common Law Pro

cedure Act, 1852, be amended, by turning it into a writ under the last-mentioned act. Leigh v. Baker,

367 2. The defendant was, in May, 1856, served with a summons under the Bills of Exchange Act, 1855, for the recovery of principal and interest on a promissory note alleged to have been made by her testator in March, 1851, payable on demand. No appearance having been entered, judgment was signed, and execution issued. Nine months afterwards, the defendant moved to set aside the writ and subsequent proceedings, on the ground that they were coram non judice and void, and also suggesting that the testator's signature to the note was a forgery. The court refused to set aside the writ, but allowed it to be amended, upon terms, by making it a specially endorsed writ under the 25th section of the Common Law Procedure Act, 1852. Ib.

3. Misjoinder of parties.]-The 37th section of the Common Law Procedure Act, 1852, which enables the court or a judge, in the case of the misjoinder of a defendant in an action on contract, to amend such misjoinder "as a variance at the trial," does not apply to a case where the party whose name is sought to be expunged has been joined, not by mistake or inadvertence, but designedly for the purpose of seeking to fix him with liability: and an application to amend under that section cannot be entertained after the verdict has been returned. Wickens v. Steel, 488

4. The 222d section does not apply to the case of a misjoinder of parties.

ARBITRAMENT.

Ib.

before judgment, paid 251. on account, and judgment was signed and execution issued for the full amount, but with a direction to the officer to take the balance only, and costs. The defendant having been arrested and detained under this writ, a judge at Chambers made an order to reduce the amount for which the judgment was signed to the proper sum, and to discharge the defendant from custody, in pursuance of the 7 & 8 Vict. c. 96, 8. 57, the sum recovered not exceeding 20., exclusive of costs:-The court refused to rescind the order.

Ib.

3. The arrest took place on the 14th of August, and the application for the defendant's discharge was not made until the 11th of December:-Held, not too late. Ib.

Privilege from,-see ATTORNEY, 1. And see MALICIOUS ARREST. SHERIFF.

Compulsory reference under the 17 & 18 Vict. 1. An attorney, not engaged for either of the

c. 125, 8. 3.

Award, how enforced.]—Quære, whether an award made upon a reference under the 3d section of the Common Law Procedure Act, 1854, is enforceable by attachment or order under the 1 & 2 Vict. c. 110, s. 18? Talbot v. Fisher, 471

ARREST.
Debt under 201.

1. Where a writ of summons is specially endorsed under the 25th section of the Common Law Procedure Act, 1852, and judgment is signed for default of appearance, pursuant to s. 27, after payments made by the defendant on account, the plaintiff is not entitled to sign judgment for the sum endorsed upon the writ, but only for the balance remaining due after giving credit for the moneys paid. Hodges v. Callaghan,

306 2. By a special endorsement under the above statute, the plaintiff claimed 347. 11. 7d. The defendant, after the issuing of the writ, and

parties in a cause, but merely attending as the professional adviser of bail put in in the Lord Mayor's Court for the purpose of dissolving an attachment, is not privileged from arrest upon a ca. sa. while going to or returning from the registrar's office for that purpose. Jones v. Marshall, 615

Summary application against. 2. Excessive and extortionate charges in a bill of costs as between attorney and client, form no ground for a summary application against the attorney, in the absence of evidence of wilful fraud, the suitor being sufficiently protected by the taxation of the bill. Meux v. Lloyd, 409

3.

Nor is it any ground for calling upon the attorney to answer the matters, that he is unable to pay the amount found due from him to his client on such taxation. Ib.

AUTHORITY.

See AGREEMENT, 1.

2. And, semble, that the want of such averments 1. A writ issued under the Bills of Exchange in the plea is not supplied by the general allegation that "all matters and things were done and happened according to the said act to make the deed, and the said release therein contained, as effectual and obligatory in all respects upon the creditors, including the plaintiff, who did not sign the said deed, as if they had duly signed the same." Ib. [See Tabor v. Edwards, post, Vol. III.]