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1.-DIGEST OF ENGLISH CASES.
Selections from 8 Adolphus & Ellis, Part 3; 2 Perry & Davison, parts 1, 2,
and 3; 5 Bingham's New Cases, Part 4 and 6, B. N. C. Part 1 ; 7 Scott, Parts 1, 2, and 3, and 8 Scott, Part 1; 5 Meeson and Welsby, Parts 2 and 3; and 7 Dowling's Practice Cases, Parts 3 and 4.
ACTION ON THE CASE. (Against surgeon for misfeasance.)
A declaration in case stated that plaintiff, an infant, had employed defendant, a surgeon, to cure her, and then claimed damages for a misfeasance. Plea, that plaintiff did not employ defendant.
Held, that it was immaterial by whom defendant was employed; or that, if material, plaintiff's submitting to defendant's treatment was sufficient proof of the allegation of employment by her. (11 Price, 400.)
(11 Price, 400.) Gladwell v. Steggall, 5 Bing. N. C. 733; 8 Scott, 60. 2. (Consequential damage.) The mere circumstance of juxtapo
sition does not render it necessary for a person who pulls down his wall to give notice of his intention to the owner of an adjoining wall.
Nor, if he be ignorant of the existence of the adjoining wall (as where it is underground), is he bound to use extraordinary caution in pulling down his own. Chadwick v. Trower (in the Exchequer Chamber), 6 Bing. N. C. 1; 8 Scott, 1. [Revers
ing the judgment of the Court of C. P. in the same case, 3 Bing.
N. C. 339.]
is entitled to sue in the Courts at Westminster for a libel pub-
Bing. N. C. 90 ; 8 Scott, 182.
trators were to make an award by the 20th of August, or such
7 D. P. C. 640. 2. (Award, when sufficiently certain-Authority of arbitrator.)
On a reference of a cause and all matters in difference between the plaintiff and defendant, the main question was, which of them should pay the expenses of a ship in which they had been jointly interested, incurred after March 24, 1838. The arbitrators directed the plaintiff to pay them, and to give the defendant a bond of indemnity against the payment of such expenses. Held, that the award was good. (2 Saund. 337;
Stra. 903.)— Brown v. Watson, 6 Bing. N. C. 118. 3. (Award after death of party to reference.) A and B, part
ners, referred to arbitration all matters in difference between them and C; and if either of the parties should die before the award made, it was to be delivered to his personal representatives, or such of them as should desire the same: pending the arbitration, B died: several meetings were held after his death, and C then protested against the arbitrator's proceeding unless the executor of B were made a party. An award having been made in favor of A without B's executor having been made a
party, the Court refused on that ground to set the award aside.
In re Hare, 6 Bing. N. B. 158. 4. Where, by the agreement of reference, the arbitrator is to take
a view before entering on the reference, and he takes such view, the non-recital of the view is no objection to his award.
Spence v. Eastern Counties Railway, 7 D. P. C. 697. ARREST. (Privilege from.) A barrister, or a party, attend
ing to hear a judgment pronounced in a case in which he is concerned, is entitled to privilege from arrest, eundo, morando,
et redeundo. Newton v. Harland, 3 Scott, 70. ATTORNEY. (Liability of, for negligence.) Plaintiff being
employed as an attorney to conduct an appeal against the removal of a pauper, omitted 10 enter and respite the appeal at the first sessions after the removal, and proceeded to the second sessions, after having served the respondents with a notice of the grounds of appeal, signed by himself instead of the overseers of the appellant parish. The sessions having refused to hear the appeal, Held, that the plaintiff was not entitled to re
cover for his services. Huntley v. Bulwer, 6 Bing. N. C. 111. BILLS AND NOTES. (Notice of dishonor.) The following was held not to be a sufficient notice of dishonor :
“ S. and Co. inform Mr. P. that Mr. B.'s acceptance of 8751. is not paid. As indorser, the defendant is called upon to pay
money, which will be expected immediately.” (1 Bing. N. C 194; 4 B. & A. 339 ; 6 Ad. & E. 499 ; 2 M. & W. 799 ; 3 Bing. N.
C. 411; 2 M. & W. 109.) Strange v. Price, 2 P. & D. 278. 2. (Evidence- Declarations of previous holder of note.) In an
action by indorsee against maker of a promissory note, the plea alleged that the note was obtained from the defendant by fraud, and that the name of A (the indorser to the plaintiff) was fraudulently indorsed, of all which the plaintiff had notice : Held, that the defendant could not read letters of A, written while he was the holder of the note, and which it was alleged would have implicated the defendant in the fraud, no evidence having been given to connect the plaintiff with A, or to show that the note had been indorsed to the plaintiff when overdue
(4 B. & Cr. 325; 4 B. & Ad. 89.) Phillips v. Cole, 2 P.
& D. 288. 3. (Interest on promissory note.) The following promissory note
(the consideration for which did not appear) was held to carry interest from its date :-“ 20th July, 1808. I promise for myself and my executors to pay F. H. (or her executors) one year after my death, 3001., with legal interest.” Roffey v. Green
well, 2 P. & D. 365. 4. (Liability on promissory note, though not delivered up.) It is
no answer to an action on a promissory note, not made payable to bearer or order, that when it became due the defendant was ready to pay on the note being produced and delivered up to him, and always had been and still was ready to pay on the production of the note. (4 Bing. 273.) Wain v. Bailey, 2 P.
& D. 507. 5. (Notice of dishonor.) In an action against the drawer of a
bill of exchange, plaintiff, by way of excuse for not giving notice of dishonor, averred that the defendant had no funds in the hands of the acceptor, nor had he sustained any damage for want of notice ; defendant pleaded he had sustained damage, because the acceptor had promised him to provide for the bill; Held, that it was not incumbent on plaintiff to prove that defendant had sustained no damage. Fitzgerald v. Williams, 6
Bing. N. C. 68. 6. (Evidence of acceptance.) In an action against defendant as
acceptor of a bill of exchange, no evidence being given in whose hand the acceptance was written : Held, that the circumstance of the bill having been paid by the drawer, and the amount of it, obtained on discount by defendant's wife, having been ap plied by her in discharge of his debts, was not sufficient to prove that he had sanctioned the acceptance.
Goldstone v. Tovey, 6 Bing. N. C. 98. 7. (Promissory note, what is.) An instrument in this form
“ John Mason, 14th February, 1836, borrowed of M. A. Mason, his sister, the sum of 141. in cash, as per loan, in promise of payment of which I am truly thankful for, and shall never be
forgotten by me, John Mason, your affectionate brother, 141.”— is a promissory note, and requires a stamp. (1 M. & W. 533 ;
2 M. & W. 74.) Ellis v. Mason, 7 D. P. C. 598. BOND. (Pleadings-Action against obligor who has executed
bond in wrong name.) In debt on bond, the plaintiff, by his declaration, complained against W. F. B., sued by the name of W. B. The defendant pleaded non est factum. At the trial, it appeared that the defendant did in fact execute a bond agreeing with that described in the declaration, by the name of W. B., and that, at the time of the execution, he was known by that name : Held, 1st, that the proof was sufficient to sustain the issue, and that it was no variance: 2ndly, that even if the objection were valid, it was not one of which the defendant could avail himself under the plea of non est factum. (3 Taunt. 504; Bracton, 188, b; Vin. Abr. Misnomer, C. 12; Com. Dig. Fait, E. 3.) Williams v. Bryant, 5 M. & W. 447 ; 7 D. P. C.
502. CONTRACT OF SALE. (Contract for sale and future delivery
of goods not then in vendor's possession, valid.) A contract for the sale of goods, to be delivered at a future day, is not in. validated by the circumstance that at the time of the contract, the vendor neither has the goods in his possession, nor has entered into any contract to buy them, nor has any reasonable expectation of becoming possessed of them by the time appointed for delivering them, otherwise than by purchasing them after making the contract. (Over-ruling Bryan v. Lewis, Ry. & M.
386.) Hibblewhite v. Mo Morine, 5 M. & W. 462. COVENANT. (Independent covenants.) On an agreement for
the sale of lands, the defendant covenanted to pay the purchasemoney on a day certain, for and as the consideration of such sale and purchase, with interest from a day certain to the time of the completion of the purchase : Held, that this was an independent covenant, and that the vendor might recover the purchase-money, without tendering a conveyance. (1 Saund. 319
h.)-Mattock v. Kinglake, 2 P. & D. 343. DAMAGES. (Measure of, in trover for plaintiff's coal got by