DIGEST OF CASES.

COMMON LAW.

6 Nevile [Comprising 3 Adolphus & Ellis, Part 4; 4 Adolphus & Ellis, Part 1; & Manuing, Part 2; 1 Nevile & Perry (in continuation of Nevile & Manning), Part 1; 3 Bingham's New Cases, Parts 1 & 2; 3 Scott, Part 1; 1 Meeson & Welsby, Part 5, and 2 Meeson & Welsby, Part 1; 1 Tyrwhitt and Granger, Part 5; and 5 Dowling's Practice Cases, Part 1 :-all Cases included in former Digests being omitted.- 5 Manning & Ryland, Part 3, and 5 Tyrwhitt, Part 3, also published within this quarter, contain no Case which has not been before digested.]

ACCOUNT STATED.

A. kept cash with B., a banker, and the balances to his credit were stated from time to time in a pass-book. A. became a lunatic, but the account continued to be kept with his family, and in the pass-book, the entries in which were in B.'s hand-writing, a balance was stated to the credit of A.: Held, that this was not evidence to support a count on an account stated with A., in an action brought by his representative against B., to recover the amount of such balance.-Tarbuck v. Bispham, 2 M. & W. 2. ACTION ON THE CASE.

(Liability of next neighbour.) Declaration stated, that the plaintiffs were possessed of a vault adjoining certain walls, and which was of right supported in part by parts of the adjoining wall; that the plaintiffs were of right entitled that their vaults should be so supported; and that there were foundations belonging to the vault which the plaintiffs ought to enjoy: yet the defendant wrongfully removed the wall adjoining the plaintiffs' vault, without taking proper precautions to support it, and wrongfully disturbed the foundations, without taking precautions to prevent them from giving way; per quod the plaintiffs' vault was damaged by the fall of some materials, which otherwise would not have hurt it, and special loss ensued. Plea, as to the not taking precautions to support the vault, that the defendant was not bound by law to take such precautions: Held bad, as tendering an issue of law for a jury, and as containing the traverse of a duty not alleged by the plaintiffs. For the same reasons, a plea that

the defendant was not bound by law to take precautions to prevent the foundations of the vault from being weakened; and a plea that the fall of the materials was not occasioned by any act or default of the defendant, or the neglect of any duty by law cast on him, were held bad: Held also, that the declaration disclosed a sufficient right of action. (9 B. & C. 725; 5 B. & Ald. 837; 2 C. & J. 20; 1 C., M. & R. 254; 3 B. & Ad. 871; 1 Ad. & Ell. 493.) -Trower v. Chadwick, 3 Bing. N. C. 334. ADVOWSON. See QUARE IMPEDIT.

AFFIDAVIT.

1. (Title of Attachment.) An attachment may be said to be granted, when the rule for the attachment is obtained, and after that the proceedings are on the crown side of the Court, and affidavits in the matter are properly intitled Re. v. The Sheriff of · -Rex v. Sheriff of Middlesex, in Barton v. Morgan, 2 M. & W. 107.

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2. It is no objection to an affidavit used in opposing a motion, that it has been sworn after the day on which the rule was due, if it were sworn before cause actually shown. (1 Chit. Rep. 27, 136; 2 D. P. C. 391.)—— Graham v. Beaumont, 5 D. P. C. 49.

3. "A. B., clerk to C. D., the defendant's attorney," is not a sufficient description of a deponent.-Daniels v. May, 5 D. P. C. 83.

4. An affidavit cannot be made use of if altered after it is sworn.-Wright v. Skinner, 5 D. P. C. 92.

AFFIDAVIT TO HOLD TO BAIL.

1. In an affidavit of debt for the agistment of cattle, it must be alleged that they were agisted "at the request of" the defendant.-Smith v. Heap,

5 D. P. C. 11.

2. (Title of) An affidavit to hold to bail, not entitled in any Court, but sworn in Scotland before a commissioner of the Common Pleas and Exchequer, may be afterwards entitled and used in either Court.- White v. Irvine, 2 M. & W. 126.

ARBITRATION.

1. (Revocation of submission.) The 9 & 10 W. 3, c. 15, and the 3 & 4 W. 4, c. 42, s. 39, apply to references of civil proceedings only. When therefore criminal matters are referred, the submission is revocable at common law.-Rex v. Bardell, 1 N. & P. 74.

2. (Award, when bad for uncertainty-Time for setting aside award.) A verdict was taken by consent for 3000l. damages and 40s. costs, subject to a reference of the cause and all matters in difference between the parties. The arbitrator by his award directed that a verdict should be entered for the plaintiff, and that the defendant should pay the sum of 2601. to the plaintiff, but did not expressly state for what amount the verdict should be entered: Held bad for uncertainty.

A rule nisi to set aside an award need not be moved for within the first four days of the term next after the publication of the award. (But see post, pl. 8.)—Martin v. Burge, 6 N. & M. 201:

3. An award contained a direction that the defendants in a cause should The sign an undertaking not to pirate an invention of the plaintiff's. defendants accordingly sign such an undertaking: Held, sufficient evidence that the defendants had submitted to the arbitration.-Stuart v. Nicholson, 3 Bing. N. C. 113.

4. (Award, when sufficiently final.) A cause and all matters in difference between the parties being referred to arbitration, the arbitrators, " having heard the proofs and allegations of the parties touching the matters in difference between them," awarded, "concerning the same," that the defendant should pay the plaintiff 117. 5s. in full of all demands in the cause: Held sufficiently final.-Day v. Bownin, 3 Bing. N. C. 219. 5. (Arbitrator's authority-Withdrawal of juror, when a determination of the cause.) A client sued his attorney for negligence and bad advice, and also for money had and received to his use. To the counts for negligence, the defendant pleaded the Statute of Limitations; to the money counts a set-off for bills of costs. At the trial, the Judge having expressed an opinion that the Statute of Limitations was a bar to the plaintiff's recovering on the counts for negligence, at his suggestion the pecuniary accounts between the parties were referred to a barrister, and a juror was withdrawn. By the order of reference, the arbitrator was to settle all matters in difference between the parties touching the defendant's bill of costs, and all the plaintiff's demand on the defendant, with power to have the defendant's bills taxed; and to ascertain the balance between the parties, and direct by and to whom, and when, the same should be paid; but no question of liability was to be raised. The arbitrator directed the defendant's bills to be sent for taxation, and in the mean time the plaintiff discovered that the defendant was not admitted in the Courts at Westminster (but only in the Court of Great Session in Wales), when a considerable part of the business was done, and he raised that objection before the arbitrator. The arbitrator, by his award, after stating that he had heard, examined, and considered the proofs, &c. of the parties, and had admitted and considered the evidence tendered to show the several times when the defendant was admitted in the superior Courts, awarded that the balance due from the defendant to the plaintiff was 170l. and a fraction, and directed the defendant to pay that sum to the plaintiff. On motion to set aside the award, on the ground that the arbitrator had exceeded his authority in making any deductions in respect of the defendant's non-admission in the superior Courts, there were conflicting affidavits as to whether the liability in this respect was in the contemplation of the parties at the time of the submission. The Court, however, set aside the award; and, on a subsequent motion, stayed the proceedings in the cause, on the ground that the withdrawal of a juror, under the circumstances, finally determined the action.-Harries v. Thomas, 2 M. & W. 32. 6. (Construction of arbitrator's certificate- When out of time.) To an ac tion of assumpsit on a builder's bill, the particulars of demand being 104/. 12s., the defendant pleaded payment of 301. before action brought, and payment into Court of 451, more. The cause was referred at Nisi

Prius to a surveyor, who was to measure and value the plaintiff's work, and to certify for whom and for what amount the verdict should be entered; no order of Nisi Prius being drawn up. He certified that he was of opinion that 747. 7s. was a fair and proper sum to be paid to the plaintiff': Held, that this amounted to a verdict for the defendant.

The Court refused to set aside the certificate on the ground that it was made some months after the jury process was returnable, the plaintiff not having withdrawn from the reference on that ground,-Salter v. Yates, 2 M. & W. 67.

7. (Enlargement of time-Appointment of third arbitrator.) Where a cause was referred to two arbitrators, with power to them to appoint a third, the award to be made by a day named, or such other day as they or any two of them should appoint, and the two originally named enlarged the time for making the award before they appointed the third: Held, that this was an invalid enlargement, and that the award made by the three could not be enforced by attachment.-Reade v. Dutton, 2 M. & W. 69. 8. (Time for setting aside award.) In C. P., where a cause is referred at Nisi Prius, and a verdict entered, a motion to impeach the award must be made within the first four days of the following term. (3 B. & P. 344.) -Lyng v. Sutton, 3 Scott, 187; 5 D. P, C. 39.

9. (Award, when final.) Where a cause and all matters in difference are referred to an arbitrator, and by his award he merely directs a verdict to be entered for the plaintiff for one entire sum, the award is not final, and therefore bad.-Gyde v. Boucher, 5 D. P. C. 127.

And see COSTS, 3.

ASSUMPSIT.

(Consideration.) Semble, that a declaration in assumpsit stating that the plaintiff, being about to proceed to N., paid money to the defendants in London, that they might cause it to be paid to him at N. on a certain day; that the defendants received the money for that purpose from the plaintiff; and that thereupon afterwards, in consideration of the premises, the defendants promised to cause the money to be paid to the plaintiff at N., discloses a sufficient consideration for the promise. (Cro. Jac. 667.) -Shillibeer v. Glyn, 2 M. & W. 143.

ATTORNEY.

1. (Summary jurisdiction over.) The Court cannot interfere summarily to compel an attorney to pay over money received for a client, in an action in that Court, unless he be an attorney of that Court. But the application may be made to the Court of which he is an attorney.-Sharp v. Hawker, 3 Bingh. N. C. 66; 5 D. P. C. 187.

2. (Breach of duty by disclosure of client's title.) An attorney, employed to raise money on mortgage for the plaintiff, disclosed to the proposed lender certain defects in the mortgagor's title, whereby he was subjected to divers actions at the suit of the proposed lender, was delayed in obtaining the money, and was compelled to pay a higher rate of interest: Held, that this was a breach of duty for which the attorney was liable to an action, although

before his retainer by the mortgagor he had been the attorney of the proposed lender. (Com. Dig. Deceit, A. 5; 19 Ves. 261.)—Taylor v. Blacklow, 3 Bingh. N. C. 235.

3. The Court will not set aside proceedings carried on by an attorney for a party from whom he has no authority, unless it appear that the attorney is insolvent. (Salk. 86, 88.)-Stanhope v. Firmin, 3 Bingh. N. C. 301. 4. (Lien of.) A. devised certain estates to trustees, upon trust to pay a part of the rents and profits to his widow, and the residue towards the maintenance and education of his son, until he reached twenty-one; and after that time to him, during the lifetime of the widow; and upon her death he devised the estates to his son in fee. The trustees having occasion to employ the defendant, an attorney, to defend certain causes and suits in carrying into effect the trusts of the devise, incurred a debt to him for certain costs and expenses, for which they deposited the title deeds with him as a security: Held, that the defendant had no lien upon them against the son, after the decease of his mother, as the debt was the personal debt of the trustees. --Lightfoot v. Keane, 1 M. & W. 745.

5. (Taxation of bill.) The Court refused to send an attorney's bill for taxation, on the undertaking of one of two joint plaintiffs; the application being made on the ordinary affidavit.—Hobby v. Pritchard, 2 M. & W.

124.

6. (Delivery of bill.) Charges in an attorney's bill for attendances on his client to advise him on matters subsequent to the conclusion of an action, do not render it necessary that a bill should be delivered a month before action brought.-Pepper v. Yeatman, 5 D. P. C. 155.

7. (Delivery up of papers by—Attachment against.) The Court will not grant a rule, requiring an attorney to deliver up papers, and in the alternative for an attachment in case of non-delivery, but each branch must be made the subject of a separate motion.—Roscoe v. Hardman, 5 D. P. C. 157. 8. (Attachment against.) A rule for an attachment against an attorney for non-payment of money pursuant to his promise, cannot be obtained; a previous rule requiring the payment of the money must have been made absolute.―Twiss v. Fry, 5 D. P. C. 157.

And see Costs, 3, 10; EVIDENCE, 5; PLEADING, 5.

AUCTION. See EVIDENCE, 1.

BAIL.

1. (Setting aside bail-bond for irregularity.) On a summons to set aside a bail-bond for irregularity, it is not competent to the party summoning to raise an objection as to the indorsement of the capias.-- Yeates v. Chapman, 3 Bingh. N. C. 262.

2. (When discharged.) Where the plaintiff, in the progress of a cause, agreed to give the defendant a month's time to pay the debt, the time expiring before judgment could by the practice of the Court be obtained, and final judgment not having been in fact signed before the arrangement was entered into Held, that the bail were not discharged.Whitfield v. Hodges, 1 M. & W. 679.