that the defendant should be made acquainted. [Lord CAMPBELL, C. J.-I think sect. 24 refers only to the terms which it may be right to impose in consequence of the peculiar proceeding under the statute.] Sir A. J. E. Cockburn, Attorney-General (with whom were Edwin James and Bodkin) urged that, whatever information it might ultimately be thought right to furnish to the defendant, the doing so ought not to be made a condition of this rule; and that, for the sake *1031] refused. *of the precedent, the application, as now made, ought to be Per Curiam (Lord CAMPBELL, C. J., WIGHTMAN, ERLE, and CROMPTON, Js.). We are all of opinion that we ought not to interfere as suggested. Rule Nisi. In the same Term (April 24th), Sir A. J. E. Cockburn, Attorney General, Edwin James and Bodkin appearing for the Crown, and J. Gray for the defendant, by consent, Rule absolute. The information required was, in fact, afterwards furnished to the defendant. Afterwards, at the Sessions of the Central Criminal Court holden in the May following, the defendant was arraigned, upon the indictment for the murder of J. P. Cooke, and pleaded Not guilty. He was tried and convicted at the same Sessions. Afterwards, by crder of that Court, made under sect. 19, he was executed at Stafford. END OF HILARY TERM. 1. What dealing with seed delivered in sacks II. Refusal of. Plaintiff sent twenty sacks of seed to de- tiff asserted it was in condition. Immediately By refusing to perform concurrent act, 7, 755. III. Of bills, 978. BILLS, IV. I. From negligence of both parties, 195. COL- LISION. II. Casual poor, 523. POOR, VIII. Pleading. ACCOUNT STATED. Plea that account was stated of money form- ACKNOWLEDGMENT. On the trial, the above facts being proved Held by Lord Campbell, C. J., Erle and Necessity for. ACT DONE. 1. To give effect to an offer, 913. COPY- 2. To give effect to a refusal, 714. CHAR- 3. To give effect to a dispositio de interesse But the Court thought the evidence too I. Cause of action. ACTION. (1033) 1. Not for injury caused directly by plaintiff's own wilful misconduct, and only remotely by defendant's breach of duty. To an action for bodily injury caused to plaintiff through a breach of duty on the part of defendant, it is a good defence that, although defendant was guilty of such breach of duty, plaintiff, wilfully and contrary to the command of defendant, committed the act which was the direct cause of the injury. Action by plaintiff, employed in a factory, against defendants, the occupiers, for not sufficiently fencing a shaft while in motion, as required by stat. 7 & 8 Vict. c. 15, s. 21, whereby plaintiff got entangled with it and injured. Plea, admitting that the shaft was not sufficiently fenced, but alleging that plaintiff, contrary to the express command of defendants, and knowing that it was dangerous to meddle with the shaft, took hold of it and set it in motion; whereby, and not by reason of negligence of defendants, plaintiff was injured. Held, on demurrer, a good plea. The Per Coleridge and Crompton, Js. provisions in stat. 7 & 8 Vict. c. 15, ss. 24, 25, respecting the bringing actions under the authority of the Secretary of State, in the name of any person injured by the machinery in a factory, do not take away the right of the party injured to sue for damages in person. Nor does the imposition of penalties in sect. 60. Caswell v. Worth, 849 2. Breach of statutory duty by owner of factory, 849. Ante, 1. 856. FACTORY, I. 3. Effect of reduction by set-off, 950. COSTS, I. 4. Breach of prospective agreement to refer, 132. ARBITRATION, I. 5. Right to share in penalty recovered by informer, 182. PENALTY, I. 1. 5. Not a mere refusal, within the time for performance, not acted on as a renunciation, 714. CHARTER-PARTY, II. 1. 729, BREACH, I. 7. Not out of illegal contracts, 999. BANKRUPT, VII. II. When it lies. Notwithstanding other remedies by statute, 849. Ante, I. 1. though the statute authorizes a different course, 849. Ante. I. 1. V. Circuity of action. When and how avoided, 209. CHARTERPARTY, III. VI. Cross action. What counter claim properly the subject of cross action, 209. CHARTER-PARTY, III. VII. Notice of action: who entitled to. Contractor for works under Public Health Act, sued for accident occasioned by negligence in the works. Defendant contracted with a local board of health to dig wells for them, according to a specification prepared by the surveyor: the works to be done to the satisfaction of such surveyor; and the digging to be done entirely under his direction: the surveyor to have power, if he considered the materials or works improper, of making the contractor remove them, or of removing them at the contractor's expense; and of ordering the dismissal of workmen with whom he should be dissatisfied, or of dismissing them himself: the Board to have the power of making alterations and additions. Defendant was sued for having left a hole, excavated in working one of the wells in a highway, without light by night; whereby plaintiff, who was driving a carriage along the way, fell into the hole, and was bruised, and his carriage injured. Held, that defendant was entitled to notica of action, under sect. 139 of The Public Health Act, 1848 (11 & 12 Vict. c. 63). Newton v. Ellis, 115 ADJUDICATION. Page 999. BANKRUPT, VII. ADMIRALTY. Collision from breach of Admiralty regulations, 195. COLLISION. ADMISSION. In evidence. EVIDENCE ADMITTANCE. III. Against whom where there is a registered To copyholds, 913. COPYHOLD, I. 1. officer appointed to sue and be sued. An action for goods supplied for the use of a society, instituted under stat. 15 & 16 Vict. c. 31, must by stat. 17 & 18 Vict. c. 25, s. 1, be brought against the registered officers of the society, appointed to sue and be sued, where there are such officers: and it cannot be maintained against an individual member of the society. Burton v. Tannahill, IV. Who may sue. 797 Party injured by breach of statutory duty, I. Title. AFFIDAVIT. Improper addition of name of course, when surplusage. Under stat. 1 & 2 Vict. c. 110, s. 3, it is no objection to an affidavit made for the purpose of holding a party to bail that it is sworn before the summons, and is headed with the name of the Court, and also described in the heading as "between" the parties, designated in such heading as "plaintiff" and "defendant." Nor that the party against whom the capias is demanded is stated to be indebted to the party demanding it, in a given sum of money, being the balance of account for railway stock and shares "gold" by the latter to the former, not adding "delivered." Nor that, after stating facts to show that the party against whom the capias is demanded is likely to leave England speedily, the affidavit does not add "unless he be forthwith apprehended." Hargreaves v. Hayes, II. Certainty. 272 I. Rights of third persons against agent. being defendants' principal at the time the On demurrer : agreement was made. Judgment for plaintiff, the terms of the charter-party showing that defendants contracted personally. Lennard v. Fleming, 125 2. Whether the circumstance of the principal being a foreigner makes any difference, 125. Ante, 1. 3. For bills accepted by him, 978. BILLS, II. Liability to assignees of principal. III. Rights of agent against third persons. IV. Rights of third persons against principal. V. Particular agents. 1. Auctioneer. AUCTION. 2. Master of ship, 419. SHIPPING, I. 1. AGREEMENT. See CONTRACT. ALEHOUSE. 1. Set-off of debt due from principal, 65. Appeal against refusal of license, costs, 489. BANKRUPT. What terms show that agent contracts personally. A charter-party stated that it was agreed between L., owner of the ship N., then at Genoa, and "R. & F., of London, merchants," that the ship should proceed to Torrevieja, and there load from the factors of the said merchants a cargo "to be brought to and taken from alongside at merchants' risk and expense, which the said merchants hereby bind themselves to ship," and should proceed to Memel, and deliver, on paying freight: "thirty running days to be allowed the said merchants," for loading and discharging, and ten days for demurrage at 41. per day. The charter-party was signed "by authority of, and as agents for, Mr. A. H. Schwedersky, of Memel." R. F. In action by L. against R. & F., the declaration set out the charter-party, and averred that Schwedersky was a foreigner, not a subject of this realm, residing beyond the to wit, at Memel, and claimed from deseas, fendants demurrage and damages for detention, ultra. Plea: that the agreement was entered into by defendants by the authority of, and for and on behalf of, and as agents for, Schwedersky, and not otherwise; and he was named to and known by plaintiff as VOL. V.-40 APPEAL, VI. 1. ALLOWANCE. Of unauthorized by-law by Secretary of State, 49. BOARD OF HEALTH, I. 1. ALTERATION. Of complete instrument. 1. What addition of party is material, S3.. BILLS, II. 1. 2. Effect of some of the parties knowing that it was intended to add another party, 83. BILLS, II. 1. AMENDMENT. I. At common law. By setting aside judgment by default in order to let plaintiff increase his particulars. Plaintiffs having delivered a declaration against A. and B., and another against A. and C., with particulars of demand in each, A. and B. suffered judgment by default on 16th January, and paid the amount claimed in the particulars in that action. Afterwards A. and C. pleaded to the action. Plaintiffs, in the latter part of April, discovered that by mistake they had included in the particulars delivered to A. and C. items which ought to have been in the particulars delivered to A. And that, no injustice being suggested to have been sustained by defendant in conse quence of the refusal to postpone the trial, the discretion of the Judge in that respect ought not to be reversed. and B. On affidavit of these facts, and that A. and B. were aware of the mistake, and allowed judgment to go by default on purpose, the Court (Lord Campbell, C. J., Coleridge and Crompton, Js.), in Trinity Term, made absolute a rule to set aside the judgment signed against A. and B., and amend the particulars of demand, on plaintiffs paying all costs and refunding the money received. Erle, J., doubting as to the jurisdic- III. Without consent, under Common Law Pro. tion to make such a rule. Cannan v. Reynolds, II. At the trial. 301 1. Amending count in trespass into one for injury to reversion. Trespass quare clausum fregit. Pleas, inter alia, that the close was not the plaintiff's, and liberum tenementum. On the trial it appeared that the real question in coutroversy was, whether the soil in a lane passing between a field of plaintiff and a field of defendant was the freehold of one or the other. The evidence showed that the plaintiff's field was in the occupation of a tenant. The Judge amended the count into one for injury to plaintiff's reversion. Held: that the amendment was properly made under the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), sect. 96. May v. Footuer, 2. Whether reviewable in bane. 505 Count on a contract by plaintiff to deliver to defendant at C. a cargo in March. Breach, that defendant would not accept, or pay for, the goods. Pleas: (1) Nou assumpsit; (2) That plaintiff was not ready or willing to deliver at C. in March. Issue thereon. At the trial, it appeared that defendant had by letter requested plaintiff to postpone the shipment for defendant's convenience; that the ship arrived in C. on the evening of the 31st March, and consequently that the cargo was not ready for delivery till April. The Judge, on plaintiff's application, amended the count by inserting an averment that, at defendant's request, plaintiff delayed the shipment, and defendant promised to accept a delivery of that shipment with reasonable speed, and exonerated plaintiff from delivering in March. Defendant objected to the amendment being made, and requested a postponement of the trial, which the Judge refused. Thereupon defendant refused to alter his plea, or appear further; and the jury, under the Judge's direction, assessed the damages. On a motion for a new trial, Held: that, whether the discretion of a Judge at Nisi Prius in making an amendment to raise the real point in controversy, and in imposing terms, be reviewable in bane or not, it was in this case properly exercised. Rule refused. Tennyson v. O'Brien, 497 3. Discretion as to postponement of trial, 497. Ante, 2. cedure act, 1852, sect. During argument on rule for new trial. Action on a check and on an account stated. Pleas 1. Non fecit. 2. That the account was stated of the check only, and that the cheek was given for money lost by gaming. 3. To the residue, Never indebted. At the trial, it appeared that defendant entered a gaming-house, and there lost at billiards 651., for which he gave an I. O. E., and subsequently sent plaintiff an unstamped check, issued more than fifteen miles from the bankers. The check was not received in evidence. The Judge intimated generally that he would make what amendments were necessary: neither party asking for any amendment, the question was left to the jury whether the account was stated of money lost by gaming. The jury found for defendant. Held: that the Court, in banc, had without consent power to amend the plea, by making it apply to an account stated concerning the consideration of the check, so as to raise on the record the question really tried. Held, also, that the case was not within the proviso in stat. 8 & 9 Vict. c. 109, s. 18. Semble, that the proviso applies only where, in fact, there is a bonâ fide intention to subscribe to a prize in the popular sense of the words. Parsons v. Alexander, 263 |
