cvi Page 446, note (o).] Page 452, note (s).] ib. note (t).] ADDENDA ET CORRIGENDA. But see Bird v. The Great Northern Railway Co., 28 L. J., Q. B. 3. For Thoroford v. Bryan read Thorogood v. Bryan, and for comments upon this case, see 2 Smith's Leading Cases, 220 (4th edit.) Add Phillips v. Edwards, 28 L. J., Exch. 52. C. P. Add Baxendale v. The Great Western Railway Co., 28 L. J., Page 454, note (y).] M'Manus v. Lancashire and Yorkshire Railway Co. has been reversed in error, but the Court of Exchequer Chamber has not yet delivered the grounds of its judgment. Page 456, Carrier.] A common carrier is not estopped from disputing the title of the person from whom he has received goods to carry; and it is an answer to an action of trover against the carrier by such person that the goods have been delivered to the real owner on his claiming them, Sheridan v. The New Quay Company, 28 L. J., C. P. 58. Page 684, note (z).] Page 853, note (1).] ib. Add Evans v. Wright, 27 L. J., Exch. 50. IV. c. 27, s. 14.] An acknowledgment of the plaintiff's title, made by a person, through whom the defendant claims, in an answer to a bill of chancery, is an acknowledgment of title within this section, Goode v. Job, 28 L. J., Q. B. 1. Add Hodgson v. Johnson, 28 L. J., Q. B. 88. note (m).] Add Lincoln v. Wright, 7 Week. Rep. Chan. 350. Page 864, note (b).] Add Levy v. Green, 8 E. & B. 576. Page 865, note (o).] Add Nicholson v. Bower, 28 L. J., Q. B. 97. Page 936, Imprisonment.] A constable cannot justify the arrest of a person on the reasonable belief that he has committed a misdemeanor; and a constable is liable to an action for continuing the imprisonment of one thus illegally arrested, Griffin v. Colman, 28 L. J., Exch. 134. Page 1046, note (k).] Sheridan v. Phoenix Life Assurance Co. was reversed in error, 28 L. J., Q. B. 94. Page 1049, note (c).] Add "And it is no defence that the defendant is a shareholder in the company," Metropolitan Saloon Omnibus Co. v. Hawkins, 4 H. & N. 87. Page 1058, note (o).] Page 1070, note (i).] Add Ramsdale v. Greenacre, 1 F. & F. 61. Add reference to 4 H. & N. 146, S. C. Page 1114, line 14, Master and Servant.] Add “or for incompetence where the servant has represented himself as possessing the skill requisite for the performance of the work of art for which he was employed," Harmer v. Cornelius, 28 L. J., C. P. 85; and see Cuckson v. Stones, 28 L. J., Q. B. 25. Page 1114, Master and Servant.] Upon a yearly contract of hiring the temporary inability of the servant to do work in consequence of illness is no ground for the master's rescinding the contract, Cuckson v. Stones, 28 L. J., Q. B. 25; and, in that case, the servant was held to be entitled to recover the weekly payments agreed to be paid under the contract, during such time as he was temporarily disabled by illness, he having, after such illness, resumed his employment under the contract. Page 1116, note (m).] Page 1123, note (1).] See also The Bartonshill Co. v. Reid, 3 Macq. App. Cas. 266; and Add Dalyell v. Tyrer, 28 L. J., Q. B. 52. Page 1134, Nusance.] In an action against a railway company for burning the plaintiff's woods, adjoining the railway, by sparks escaping from the defendants' locomotive, it appeared that everything practicable had been done to make the locomotive safe; that a cap had been put to the chimney, that its ash-pan had been secured, that it travelled at the slowest pace consistent with practical utility, and that if its funnel was more guarded, or its ash-pan, or if its pace was slower, it could not be advantageously used: but it was also admitted that, notwithstanding these precautions, the locomotive was habitually the cause of setting fire to the plaintiff's banks, which fire, on the particular occasion in question, communicated to the plaintiff's woods and burnt them. The jury having, under these circumstances, found that the defendants were guilty of negligence, the Court of Exchequer refused to disturb the verdict, Vaughan v. Taff Vale Railway Co., 3 H. & N. 743. Page 1142, Nusance.] Although where one, possessed of land abutting on a public footway, makes an excavation on it immediately adjoining the public way, and which he leaves unprotected, is liable for injuries sustained by a passenger falling into such excavation, Barnes v. Ward, 9 C. B. 392; he is not liable if such excavation be made at some distance from the way, Hardcastle v. The South Yorkshire Railway Co., 28 L. J., Exch. 139. Page 1156, note (t).] Page 1187, note (o).] Page 1231, note (g).] Page 1240, note (i).] Page 1301, Trespass.] Page 1400, note (z).] Page 1406, note (m).] Add Yates v. Dalton, 28 L. J., Exch. 69. Add The Blackpool Board of Health v. Bennett, 4 H. & N. 127. A mortgage may be made of a ship before registry of the ship; Add reference to 28 L. J., C. P. 133, S. C. Trespass lies for distraining tools of trade not in use whilst there were other goods upon the premises which might have been distrained, Nargatt v. Nias, 28 L. J., Q. B. 143. See also Webb v. Ross, 4 H. & N. 116. Add Lafone v. Smith, 4 H. & N. 158. AN ABRIDGMENT OF THE LAW OF NISI PRIUS. CHAPTER I. OF THE ACTION OF ACCOUNT. I. In what Cases the Action may be maintained, II. Of the Pleadings and Evidence, III. Of the Judgment, 1. To account 2. Final.-Execution I. In what Cases an Action of Account may be maintained. A PREFERENCE having, for many years, been given to the mode of proceeding by bill in a court of equity, the action of account has in a great measure fallen into disuse. It will not, therefore, be necessary to enter fully into the nature of this action, but briefly to apprise the reader in what cases it may be maintained, what pleas may be pleaded to it, and in what form judgment may be entered. To maintain an action of account (a), there must be either a privity in deed, by the consent of the party (for an action of account does not lie against a disseisor or other wrong-doer), or a privity in law, as in the case of a guardian, &c. By the common law, an action of account for the rents and profits may be maintained by the heir, after he has attained the age of fourteen years (b), against the guardian in (a) 1 Inst. 172 a. socage (c); so at the common other accountants, by the common law may claim an allowance of all his reasonable costs and expenses. B law account will lie against a bailiff (d) or receiver (e), and in favour of trade and commerce by one merchant against another (f). But this action did not lie for one joint-tenant, or tenant in common, against his companion, although he should have taken the whole profits to his own use, unless he had been appointed bailiff to render an account (g). But now, by 4 Ann. c. 16, s. 27, an action of account may be maintained by one joint-tenant or tenant in common (h), his executors or administrators, against the other, as bailiff, for receiving more than his share or proportion, and against the executors or administrators of such joint-tenant or tenant in common (i). One tenant in common brought an action of account against another (k), and charged him as bailiff and receiver. As to the account given against him as bailiff, the defendant entered into the account; and as to the account against him as receiver, demurred (specially), because the plaintiff did not state by whose hands the defendant received the money: the court held the exception good, notwithstanding 4 Ann. c. 16, s. 27, for that statute only empowered the plaintiff to charge the defendant as bailiff; but as the plaintiff had gone further, and charged the defendant as receiver, he ought to have shown by whose hands he received the money, as was required by the common law (1). As the statute is a general one, it is not necessary for the plaintiff to set it forth or to refer to it; but he must set forth so much as to bring his case within it; and, therefore, in an action for account by one tenant in common against another upon this statute, the plaintiff must state in his declaration, and prove, that he and defendant were tenants in common, and that defendant has received more than his just share (m). It is not sufficient to charge defendant merely as bailiff (n). tenant in common can maintain an action under the statute against his co-tenant for the rent which accrued during his father's life, the Statutes of Apportionment not applying to this case (0). The heir of a An action of account against a tenant in common on this statute differs from an action of account against a bailiff at common law; for a bailiff at common law is answerable, not only for his actual receipts, but for what he might by his industry or care have reasonably raised or made, deducting his reasonable costs and charges; but, by the words of the statute, a tenant in common, ceived will lie in such a case. Thomas v. Thomas, 5 Exch. 28; 19 L. J. (Exch.) 175, S. C. (k) Walker v. Holyday, Com. 272. (2) 1 Inst. 172 a. (m) Henderson v. Eason, 17 Q. B. 701. (n) Wheeler v. Horne, Willes, 208; Sturton v. Richardson, 13 L. J., Exch. 281; 13 M. & W. 17, S. C. (0) Beer v. Beer, 12 C. B. 60; 21 L. J., C. P. 124. |