to make it; and on the 23d he wrote again offering a substituted contract, but still repudiating the original contract. B. by his attorneys gave A. notice that he should hold him bound by the original contract, and that if he persisted in refusing to perform it, he (B.) should forthwith proceed to make other arrangements for forwarding the goods to their destination, and look to him for any loss. On the 1st of August A. again wrote to B. stating that he was then prepared to receive the goods on board his ship, making no allusion to the original contract. B. had, however, in the mean time entered into a negotiation with one S. for the conveyance of the goods by another ship, which negotiation ended in a contract for that purpose with S. on the 2d of August. B. thereupon sued A. for refusing to receive the goods pursuant to his contract; and A. brought a cross-action against B. for refusing to ship. Upon a special case stating these facts:Held, that it was competent to A. to treat B.'s renunciation as a breach of the contract; and that the fact of such renunciation afforded a good answer to the cross-action of A., and sustained B.'s plea that before breach A. discharged him from .he performance of Id. the agreement. CONVERSION. Evidence of. A. and B. verbally treated for the purchase of A few a horse by the former of the latter. days afterwards, B. wrote to A. saying that he had been informed that there was a misunderstanding as to the price, A. having imagined that he had purchased the horse for 301., B. that he had sold it for 30 guineas. A. thereupon wrote to B. proposing to split the difference, adding,-" If I hear no more about him, I shall consider the horse is mine at 301. 158." To this no reply was sent. No money was paid, and the horse remained in B.'s possession. Six weeks afterwards, the defendant, an auctioneer who was employed by B. to sell his farming stock, and who had been directed by B. to reserve the horse in question, as it had already been sold, by mistake put it up with the rest and sold it. After the sale B. wrote to A. a letter which substantially amounted to an acknowledgment that the horse had been sold to him: Held, that A. could not maintain an action against the auctioneer for the conversion of the horse, he having no property in it at the time the defendant sold it,-B.'s subsequent letter not having (as between A. and a stranger) any relation back to A.'s proposal. 869 Paul Felthouse v. Bindley, COPIES. See PRACTICE, 1. COPYRIGHT. See DRAMATIC COPYRIGHT. COSTS. Order under 15 & 16 Vict. c. 54, 8. 4. 1. The discretion of the Court or a Judge as to allowing or withholding costs, under the 15 & 16 Vict. c. 54, s. 4, is to be exercised with reference to the propriety of bringing the action in the Superior Court at the time it is brought, and not with reference to the complications which may be introduced by the acuteness of the special pleader. Howlett v. Tarte, 634 Order for, under 19 & 20 Vict. c. 108, s. 19. 2. Under the 30th section of the County Courts Amendment Act, 19 & 20 Vict. c. 108, a plaintiff in an action of contract who obtains judgment by default for a sum not exceeding 207., is entitled to an order for costs under the same circumstances as would have entitled him to costs under the earlier County Courts Acts where he had recovered the like amount by a trial and verdict. Baddeley v. Bernand, 421 3. But the application should be made at Chambers. Id. Certificate under 43 Eliz. c. 6, 8. 2. 4. The 43 Eliz. c. 6, s. 2, is still in force in actions upon promises. Danby v. Lamb, 423 Certificate under the Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126, s. 34. 5. The 34th section of the Common Law Procedure Act, 1860, which empowers a Judge to certify to deprive the plaintiff of costs where he recovers a verdict for less than 51. in an action "for an alleged wrong," does not apply to detinue. Danby v. Lamb, 423 6. A certificate in the following words,-"I certify that the trespass or grievance in respect of which this action was brought was not wilful or malicious,"-is of no avail to deprive a plaintiff of costs under the 34th section of the Common Law Procedure Act, 1860. Gooding v. Britnall, 148 7. The Judge has no power to certify under the statute, where a right, though a small one, is really in issue. Costs to abide the Event. Id. 8. In an action for the wrongful dismissal of a clerk, with a count for wages, the plaintiff obtained a verdict on the first count, and, no claim being urged on the second count, the verdict on that was entered for the defendants. A rule for a new trial was afterwards granted, "the plaintiff's costs of and occasioned by the trial already had, and of and occasioned by this application, to abide the event of this cause." On the second trial the defendants obtained a verdict on the first count, and the plaintiff (who had then discovered that there had been a mistake in the calculation of the wages due to him at the time of his dismissal) had a verdict on the second count, for 41. 198. :-Held, that the event contemplated by the rule being the event in respect of which the contest took place upon the first trial, the plaintiff was not entitled to the costs mentioned in the rule. Dawson v. Harris, 801 COUNTY COURT. See COSTS, 1, 2, 3. CROWN GRANT. Validity and Effect of. 1. A grant by the Crown to a subject of the soil of the seashore below low-water mark, and of a toll for the anchorage of vessels there, may be presumed to have had a legal origin and such a toll, if found to exist, may be enforced by distress. The Free Fishers of Whitstable v. Gann, Gann v. John son, 387 2. By deeds of lease and release of the 11th and 12th October, 1791, the manor of Whitstable, and the royalty of fishery or oysterdredging within the said manor, were conveyed to A. and B. By deeds of lease and release of the 24th and 25th of October, 1792,- reciting, amongst other things, that, within the said manor of Whitstable, there is, and for many hundred years then last past had been, a fishery for the growth and improvement of oysters, extending from the sea-beach for a very considerable distance into the sea, managed by a company of free dredgers called "The Whitstable Company of Dredgers," the manor (proper) was limited to A. and two others, in fee, and "the royalty of fishery or oyster-dredging, and the right of taking oysters and other fish within the said manor, and the ground and soil of the said fishery, and also the customary payments usually and of right made to the lord of the said manor for or on account of the anchorage of any ship or vessel, or the landing of any goods or merchandise within the said manor," &c., to C., in fee, on behalf of the Company. By an Act of 33 G. 3, c. 42, the Whitstable Company of Dredgers were incorporated by the name of "The Company of Free Fishers and Dredgers of Whitstable;" and, in pursuance of that Act, the fishery, and all rights appertaining thereto, were by deeds of lease and release of the 4th and 5th of June, 1793, conveyed to the Company. It appeared in evidence that the oyster fishery extended about two miles from the shore, and far below the ordinary low-water mark; and that the Company and those under whom they claimed had so far back as the year 1775 claimed a toll of 1. for every vessel anchoring or grounding within the space covered by their conveyance; and three instances were proved of the claim having been enforced by distress from vessels anchoring on the oyster-ground below low-water mark, when resisted, there being no evidence to show that the claim had ever been resisted without recourse being had to a distress : Held, that, it being competent to the Crown to grant the soil of the seashore and the right to anchorage, the evidence was sufficient to justify the presumption of a grant having a legal origin; that the right of distress was incident to the right to the anchorage; and that the right to the anchorage was not destroyed by the severance of the marine from the terrestrial part of the manor. The Free Fishers of Whitstable v. Gann, Gann v. Johnson, CROYDON IMPROVEMENT ACT. Construction of,-See STATUTE. DAMAGES. Measure of. 387 1. It is no ground for a new trial, in an action for an assault and false imprisonment, that the plaintiff had incurred an expense of 71. 148. in procuring his discharge from custody, and the jury have awarded him a farthing only. Bradlaugh v. Edwards, Remoteness. 377 2. The defendant caused the plaintiff to be apprehended upon an unfounded charge, and to be detained from past 1 until 2 o'clock. In support of a claim for special damage in an action for false imprisonment, the plaintiff proved that he would have been engaged as a journeyman by one J. S., if he had presented himself at the factory at 2 o'clock on the day in question; but that, being unwell from the treatment he had received, he went home, and did not go to the factory until the next morning, when he found that his intended employer had engaged another man-Held, that this damage was too remote. Hoey v. Felton, DEVISE. Construction of. 142 Estate in fee.]-Testator by his will, made before 1838, gave all his real and personal estate to trustees, in trust, after payment of his debts, &c., to convert the personal estate into money, to be placed at interest. He then gave all the profits" arising from his real estate and the interest of his personal estate to his wife, to be applied to her maintenance and support at the discretion of the trustees, if she should need the whole of it, during her life. He then gave a legacy of 8001. to his niece. He then willed that his trustees should put his kinsman G. S. into possession of a close called The First Close,' which he gave to the said G. S.; and then followed this devise,-" Then I give all that my close or piece of land called The Second Close' with all the appurtenances, unto my kinsman W. S., son of my late brother W. S. "-Held, that a sufficiently clear intention to give W. S. an estate in fee was shown, to countervail the absence of words of limitation. Smith v. Smith, 121 And see WILL. DISCLAIMER. See LETTERS PATENT. DISTRESS. See CROWN GRANT. DISTURBANCE. See BELL RINGING. DRAMATIC COPYRIGHT. Infringement. The author of a drama called “Gold,” which had been printed and represented on the stage, published a novel founded upon it, called "It is never too late to mend," to which novel he transferred some of the scenes from the drama. The defendant caused another drama to be constructed from the novel, which he called "Never too late to mend," taking many of the scenes from the novel which had been imported into the novel from the original drama, and produced it at his theatre :-Held, that this was an infringement of the plaintiff's copyright in his drama. Reade v. Conquest, 479 ENCLOSURE. Proceeding to ascertain Consents and Dissents. The Court granted a prohibition against the Enclosure Commissioners, to prohibit them from proceeding with an enclosure under the 8 & 9 Vict. c. 118, where the Assistant Commissioner had, in taking the consents and dissents under s. 27, excluded from his estimate of the interest of the owner of the soil of the land to be enclosed, and over which rights of common existed or were claimed, the value of the brick earth thereunder, which would have more than sufficed to overtop the consents to the enclosure,-notwithstanding the provisional order contained the following so called exception,-" that all mines, minerals, stone and other substrata be reserved to C., with a right to enter the said lands when enclosed, for the purpose of opening, working, or winning such mines, minerals, stone, and other substrata, making compensation for any damage to the surface which may thereby be done." Church v. The Enclosure Commissioners, 664 EQUITABLE set-off. See PLEADING, 2. ESTOPPEL. See MERGER, 2. EVIDENCE. Oral Evidence to Explain a Written Agreement. 1. The plaintiff declared upon an agreement by the defendant to transfer to him a farm which he (the defendant) held under Lord Sydney, "upon the terms and conditions of the agreement under which the same was held by the defendant under Lord Sydney." The defendant pleaded that the agreement declared on was made subject to the condition that it should be null and void if Lord Sidney should not within a reasonable time after the making of the agreement consent and agree to the transfer of the farm to the plaintiff :-Held, that it was competent to the defendant to prove by extraneous evidence this contemporaneous oral agreement, -such oral agreement operating as a suspension of the written agreement, and not in defeasance of it. Wallis v. Littell, 369 2. The plaintiff, who was known to be acting : in the capacity of a "lace-buyer," was engaged by the defendant, a lace-dealer, under the following memorandum :-"M. agrees to engage P. for the term of three years from Monday the 15th of August, 1859, at the yearly salary of 5001., payable monthly. P. to give the whole of his services, and to be advised and guided by M., if necessary." In an action by P. against M. for a wrongful dismissal pending the term, on the alleged ground of disobedience of lawful orders :Held, that evidence was admissible to show the capacity in which the plaintiff was engaged, viz. as "lace-buyer ;" and that it was properly left to the jury to say whether or not the orders which he was alleged to have disobeyed were such as a person in that position was bound to obey. Price v. Mouat, 508 Of non-access of Husband,-See HUSBAND AND WIFE, 5. FAC-SIMILE COPIES. FALSE IMPRISONMENT. FISHERY. See CROWN GRANT. FOREIGN BILL. See BILLS OF EXCHANGE, 1, 2, 3. FREIGHT. See INSURANCE, 3. GASWORKS CLAUSES ACT, 1847 GAS COMPANIES. 1. The price to be charged for gas supplied to 2. Where, therefore, a gas company under their private Act were limited to a charge of 48. per 1000 cubic feet for gas of such a quality as to produce from an argand burner of a given size a light equal in intensity to the light of twelve wax candles of six to the pound-Held, that, on the coming into operation of the public Act, under which they were compelled to supply gas of a considerably better quality, the company were justified in increasing the charge to any sum within the maximum authorized to be charged by that Act. Id. 2. In an action against baron for goods sold to the feme, it is not competent to the Judge to amend the record at the trial by adding the feme as a defendant, and an allegation that the goods were sold to her dum sola. Garrard v. Guibilei, 616 Wife sued as a Feme Sole. 3. The Court set aside a judgment signed against a married woman (sued as a feme sole), but without costs, there being some doubt upon the affidavits whether she had not, when she contracted the debt with the 783 plaintiff, held herself out as being unmarried. Wilson v. Hollings, Acknowledgment of Deed by the Wife, under 3 & 4 W. 4, c. 74. 4. Affidavit of Verification.]—The Court refused to allow a certificate of acknowledgment tion of the old Insolvent Act, 1 & 2 Vict. c. 110. Markin v. Aldrich, INSPECTION OF DOCUMENTS. See PRACTICE, 1. INSURANCE. pear. 599 taken in Ontario, under the 3 & 4 W. 4, c. On Goods to be declared as Interest might ap74, to be filed, where the affidavit of verification purported to be sworn before "J. S., an attorney of the Supreme Court." The affidavit must be sworn before a magistrate, and his authority to administer oaths certified by a notary public. Re Arabella Wood630 man, Presumption of Non-access. 5. Upon a complaint by a married woman who was living apart from her husband, charging a third party, under the 7 & 8 Vict. c. 101, with being the father of a bastard child of which she had been delivered, evidence having been given which justified the magistrates in presuming non-access of the husband,-Held, that it was no ground of objection to their decision that the magistrates allowed the wife to be asked a question tending to prove non-access of the husband,the magistrates certifying that they found non-access independently of her evidence. Yates, app., Chippendale, resp., ILLEGITIMATE CHILD. See HUSBAND AND WIFE, 5. INDEMNITY. See SURETY. INSOLVENT. Interim Order of Protection. 512 1. To entitle a person to sue upon a contract, it must be shown that he himself made it, or that it was made on his behalf by an agent authorized to act for him at the time, or whose act has been subsequently ratified and adopted by him: and the person for whom the agent professes to act must be capable of being ascertained at the time. Watson v. Swann, 756 2. S., an insurance broker at Hull, being instructed to effect an open policy for 50002. for the plaintiff, against jettison only, "subject to declaration thereafter," and being unable to do so, declared certain deck cargo shipped for Ostend on board one of the plaintiff's vessels on the back of a general policy which he had previously effected for himself "upon any kind of goods and merchandise, as interest might appear," and got it initialed by the underwriters. A loss having happened,-Held, that it was not competent to the plaintiff to maintain an action against the underwriters upon this policy, the contract not having been made by him or on his behalf at the time. Id. Total Loss. 3. Of freight.]-Freight under a charter was insured, for a voyage from the Cape of Good Hope to Hondeklip Bay, an open roadstead 180 miles up the coast, there to load a cargo of copper ore, to proceed therewith to Swansea at a freight of 40s. per ton. Arrived at Hondeklip Bay, the master received on board part of the cargo (the whole being ready), when, a storm coming on, he was compelled to put to sea with the loss of an anchor and an injury to his windlass; and, after beating about the offing, he deemed it expedient to sail for St. Helena, a distance of about 1800 miles. Finding, on his arrival there, that he could not get an additional anchor or the requisite repair, the master discharged the portion of the outward cargo which he had not landed at Hondeklip Bay, and proceeded to Swansea with the homeward cargo, short by about 120 tons of a full cargo. The jury,—although the master did not run for the Cape, where it appeared that the necessary repairs might have been obtained,-found that the master acted throughout as a prudent owner uninsured would have done:-Held, that, under these circumstances, the underwriters were not responsible as for a total loss of the freight of the 120 tons by perils of the sea. Philpott v. Swann, 270 |