DIGEST OF ENGLISH CASES.

COMMON LAW.

[Comprising Adolphus & Ellis, Vol. 1, Part 4, and Vol. 2, Part 1; Bing. ham's New Cases, Vol. 1, Part 4, and Vol. 2, Part 1; 1 Scott, Parts 2 and 3; 1 Crompton, Meeson, & Roscoe, Part 5; 5 Tyrwhitt, Parts 1 and 2; 3 Dowling's Practice Cases, Part 5:-all Cases included in former Digests being omitted.-5 Manning & Ryland, Part 2, recently published, contains no case not before digested.]

AFFIDAVIT.

(Taking off the file.) The Court will not allow an affidavit to be taken off the file to be amended: a fresh one must be sworn. Plant v. Butterworth, 5 Tyrw. 183.

AGREEMENT.

(Running with the land.) An agreement that plaintiff should be paid 3601. on the 31st December, 1834, for 3131. lent by him on the 26th April, 1834, if four persons named should be alive on the 31st December, and that the plaintiff should have the use of two boxes at a theatre in the intermediate time gratuitously, but if either of the four persons should die, the plaintiff should pay a reasonable sum for the use of the boxes: Held not to be an agreement running with the land, and therefore not binding, as to the use of the boxes, on an assignee of the theatre. Flight v. Glossop, 2 Bing. N. C. 125. ARBITRATION.

1. (Extent of arbitrator's authority.) It was referred to an arbitrator to decide on what terms a partnership agreement should be cancelled. He directed, among other things, that the agreement should be cancelled, that one of the partners should have all the debts due to the firm, and should, if necessary, sue for them in the name of his late partner: Held, that in this last direction the arbitrator had not exceeded his authority. Burton v. Wigley, 1 Bing. N. C. 665. 2. On a reference of a cause and all matters in difference, the arbitrator awarded that there was a balance of 261. due from the plaintiff to the defendant, but did not direct the money to be paid. The

Court refused to grant an attachment for non-payment of the money. (3 Bing. 634; 1 D. P. C. 489.) Hopkins v. Davies, 1 C., M. & R. 846.

3. (Revocation of arbitrator's authority-Arbitrator's misconduct.) An arbitrator's authority cannot be revoked after he has made his award. His refusal to examine witnesses is sufficient misconduct to induce the Court to set aside his award; although he did it thinking he had sufficient evidence without him. Phipps v. Ingram, 3 D. P. C. 669.

4. A cause was referred at the assizes, and by consent a verdict was entered for the plaintiff, damages £50, subject to the award of an arbitrator. The time for making the award expired without an award being made; it was further enlarged by consent, and the enlarged time having also expired without an award made, the plaintiff gave notice of trial, and proceeded to the trial of the cause, and obtained a verdict. A judge's order having been previously obtained for altering the record in the distringas, the clerk of assize at the trial erased the endorsement of the previous verdict, and entered the new verdict in the usual way. The Court set aside the latter verdict for irregularity. Evans v. Davies, 3 D. P. C. 786. 5. (Costs.) An action for a nuisance (to which a plea of the general issue only was pleaded before the new rules of pleading,) was referred to an arbitrator, who found that the plaintiff had not proved that the defendant was the cause of the injury, and ordered a nonsuit to be entered; but directed also, that the defendant should remove the nuisance within a month: Held, that this was a finding substantially in favor of the defendant, and that he was entitled to the expense of all witnesses who could be material under the general issue. Radcliffe v. Hall, 3 D. P. C. 802.

ARREST.

A defendant who had been wrongfully arrested on a Sunday upon a charge of felony, without any warrant, was arrested on civil process as he was leaving the police-office after being discharged by the magistrate: Held, that the latter arrest was regular; it not being distinctly shown that the plaintiff was privy to the unlawful arrest. Jacobs v. Jacobs, 3 D. P. C. 675.

ATTORNEY.

1. (Right of attorney to go on with action for his costs.) An attorney is not justified in proceeding with an action after it has been settled between the parties themselves, although the defendant knew that costs had been incurred, and that the plaintiff himself was not in a condition to pay them: it must be shown affirmatively that the settlement was come to for the purpose of cheating the attorney. Jordan v. Hunt, 3 D. P. C. 666.

2. (Costs of taxation of bill.) Where, on the taxation of an attorney's bill, a sum was deducted, being the costs occasioned by commencing an action in an improper form, which was afterwards brought in a proper form; and in consequence of that deduction a little more than a sixth was taxed off: Held, that the client was entitled to the costs of taxation. (2 H. Bla. 358; 3 N. & M. 767; 5 B. & C. 760; 1 D. P. C. 251; 2 D. P. C. 382.) Morris v. Parkinson, 3 D. P. C. 744.

3. (Liability of, for negligence.) Where a plaintiff was nonsuited through the neglect of the attorney's clerk, to attend in Court, the Court refused to set aside the nonsuit except on the terms of the plaintiff's attorney paying the costs occasioned by the defendant's attending to try. White v. Sandall, 3 D. P. C. 798.

BANKRUPTCY.

1. (Mutual credit.) In an action by the assignees of a bankrupt for not accepting, pursuant to agreement, a bill of exchange drawn by way of part payment for goods sold and delivered by the bankrupt to the defendant: Held, that the defendant might set off a debt due to him from the bankrupt for money lent, &c. (1 Mod. 215; 2 Vern. 117; 8 Taunt. 499; 1 B. & Ad. 526; 2 B. & B. 94.) Gibson v. Bell, 1 Bing. N. C. 743.

2. (Set-off, against assignees, of debt due from bankrupt.) To a declaration in debt by assignees of a bankrupt for money had and received to the use of the plaintiff as assignee, the defendant pleaded that the bankrupt before his bankruptcy was indebted to the defendant to a greater amount, on an account stated between them, and that he was willing to allow the plaintiffs to set off against such debt the debt claimed by the declaration: Held, ill. (Cowp. 133.) Groom v. Mealey, 2 Bing. N. C. 138.

BILL OF EXCHANGE.

1. (Proof of notice of dishonor.) An entry of the dishonor of a bill, made in the usual course of business by a notary's clerk, who presented the bill, at the time of the dishonor, was held good evidence in an action on the bill, on proof of the clerk's death. (3 B. & Ad. 890.) Poole v. Dicas, 1 Bing. N. C. 649.

2. (Usage of bill-brokers-Title acquired by transfer of bill bona fide.) W. & P., brokers in London, had in their possession bills of different customers to the amount of nearly 3000l., which had been left with them to raise money on. They mixed these bills with others of their own to about the same amount, and deposited the whole with F., a merchant and capitalist, for an advance of 3000l. then made, and for a preceding advance made a few days before on a promise to bring bills. Evidence was given that it was usual and customary for bill-brokers in London to raise money by a deposit

of their customers' bills in a mass, and that the bill-broker alone was looked to by the customers who gave him dominion over the bill.

In an action brought by F. on one of the bills against one of the customers, who was a party to the bill, the judge left it to the jury to say whether F. the plaintiff took the bill from W. & P., the billbrokers, with due care and caution, and in the ordinary course of business; and the jury, being of opinion that he had so taken it, found for the plaintiff: Held, that the defendant, the customer, could not complain of this summing up, and the Court refused to disturb the verdict.

Another of the customers (who was himself also a bill-broker) sued F. in trover for the value of certain of the bills. The judge directed the jury that the principle laid down in Haynes v. Foster, (2 C. & M. 237),—that a bill-broker who receives a bill from a customer to procure it to be discounted has no right to mix it with bills of other customers, and to pledge the whole mass as a security for advances to himself, and that still less has he a right to deposit such bills as a security for money previously due from him,—was to be taken by them as the general law; but that, notwithstanding such general law, the parties might contract as they thought proper; and he left it to the jury to say whether the usage set up by the defendant was established to their satisfaction, and, if so, whether they thought the plaintiff, who was a bill-broker himself, had contracted with reference to that usage: and the jury having found for the defendant, the Court refused to disturb the verdict.

A bill-broker is not a person known to the law with certain prescribed duties; his employment is one depending entirely on the course of dealing: his duties may vary in different places, and their extent is a question of fact, to be determined by the usage and course of dealing in the particular place.

Semble, that the established rule of law,-" that the holder of bills endorsed in blank, or other negotiable securities transferable by delivery, can give a title which he does not himself possess to a person taking them bonâ fide for value,”—is not to be qualified by treating it as essential that the transferee should take them with due care and caution, unless his conduct be such as to affect the bonâ fides and honesty of the transaction itself. (3 N. & M. 188, 257.) Foster v. Pearson, and Stephens v. Foster, 1 C., M. & R. 849. COSTS.

1. (On several issues found different ways.-Attorney's lien.)In an action on the case containing several counts in the declaration, some issues were found for the plaintiff and some for the defendant : Held, that the Master was right in deducting the costs of the de

fendant's issues from the plaintiff's, and that the lien of the plaintiff's attorney was only on the balance coming to the plaintiff. Eades v. Everatt, 3 D. P. C. 687.

2. (Of several defendants in trespass.) Where several defendants are sued in trespass, and a verdict is found for the plaintiff on some of the issues against some of the defendants, and against him on all the other issues, the plaintiff is entitled to the balance only of the costs, after deducting all the costs of all the defendants.

Where there are several defendants, and one alone employs an attorney for all, the others are not entitled to claim any costs. Starling v. Cozens, 3 D. P. C. 782.

COVENANT.

(For quiet enjoyment by underlessee.) A lessee covenanted with his underlessee, paying rent, &c. that he should have quiet enjoyment of a term upon an underlease to commence in 1836. The lessee having forfeited his own term by non-payment of rent to the superior landlord, the underlessee could not come into possession of the term to commence in 1836: Held, that the underlessee could not sue on the covenant for quiet enjoyment; at all events not before 1836. Ireland v. Bircham, 2 Bing. N. C. 90.

DEVISE.

1. (Devise to lawful heir.) T. J. Selby, who had no relations of his own name, devised his estates to "his right and lawful heir at law," (for whom he directed advertisements to be published,) charged with legacies, to be paid in twelve months after testator's death; and if no heir was found, he devised to W. L., on condition that he changed his name to Selby. The testator had several relations on the side of his mother and grandmother, and left them large legacies. Held, that by his lawful heir he meant an heir of the blood of the Selbys; and that none such being found, the estates went to W. L. (Davies v. Lowndes, 1 Bing. N. C. 597.) Doe d. Wells v. Lowndes, ib. 620, 622.

2. Devise to testator's children, and their lawful issue, in tail general, with benefit of survivorship among the issue, as tenants in common: Held, that the children took estates for life, and the grandchildren contingent remainders in tail general; inasmuch as it appeared from the whole will that the testator, had used the word issue of children as synonymous with sons or daughters of children. (7 Ves. 522; 1 Madd. 381.) Cursham v. Newland, 2 Bing. N. C. 58. 3. (To trustees, what gives the fee.) Devise to trustees, and the survivor and his heirs, upon trust to the use of testator's nephews and their assigns, during their lives and the life of the longest liver of them; and after determination of those estates by forfeiture or otherwise, upon trust to preserve uses, but to suffer the nephews to