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1833.

HEAD

v. BRISCOE.

by the wife. And whether their separation be permanent or temporary it does not affect the question, unless it operates so upon the marriage as to make that civil relation cease; for, by the law of England, you cannot bring an action against the wife without joining the husband; and a man would be without remedy if he could not sue the husband. Upon this ground I have no doubt, as at present advised, that the action is maintainable. If I am wrong in my opinion the learned counsel for the defendant will have an opportunity of moving the Court.

His Lordship left the question of damages to the jury, who found a verdict for the plaintiff

Damages 40s.

Wilde, Serjt., and Hutchinson, for the plaintiff.

Adams and Bompas, Serjts., for the defendant Sir W. Briscoe.

[Attornies-Curlon, and Springhall & H.]

In the ensuing term, Adams, Serjt., moved pursuant to the leave given; but the Court, after observing that there was no evidence that the wife was living in adultery (a)

Refused a rule.

(a) See, upon this point, the case of Rex v. Flintan, 1 B. & Ad. 227, which decides, that a man is not liable to the penalty of the stat. 5 Geo.4, c. 83, s. 3, for neg

lecting and refusing to maintain his wife, who has left him, and committed adultery, although he himself has been guilty of adultery since her departure.

Feb. 11th.

Walker v. Rawson. ASSUMPSIT for work and labour as an engineer, Payment of money into Court against the defendant, as chairman of the Directors of the in assumpsit on the common counts for work and labour, is an admission that the contract was with the party suing, where it appears that there was in fact only one contract.

1833.

WALKER

v. RAWSON.

Leeds and Manchester Railway Company. A sum of money had been paid into Court.

It appeared in the course of the cause that a bill had been delivered in the names of Walker & Burgess, and it appeared that those gentlemen were in partnership as engineers, but Mr. Walker had received the communication from the parties on the business.

On the part of the plaintiff, the payment of money into Court was relied on as an admission that the contract was with Mr. Walker, the plaintiff.

Jones, Serjt., for the defendant, contended, that payment of money into Court was no admission on the common counts of anything more than that such sum was due. He referred to the case reported under the name of Seaton v. Benedict (a).

TINDAL, C. J.-The only question here is, with whom was the contract made? I think the payment of money into Court gets rid of the difficulty. There can be but one contract. It is not like the case of the goods furnished for the wife, which has been referred to; for in that case there might have been authority for one part and not for another.

Wilde and Talfourd, Serjts., and Hoggins, for the plaintiff.

Jones, Serjt., and Baines, for the defendant.

[Attornies-Chisholme & Co., and Walmsley.]

(a) 2 Moore & Payne, 66, the amount of the sum paid in, and decision in that case was, that pay- applies only to a legal demand, ment of money into Court in as- and not to all the items contained sumpsit for goods sold and de- in a bill of particulars, in which livered, only amounts to an ad- the goods are stated to have been mission by the defendant of the supplied at different times. plaintiff's right of action to the

1833.

Adjourned Sittings in London after Hilary Term,

1833.

BEFORE LORD CHIEF JUSTICE TINDAL.

PHIPPS v. TANNER.
Feb, 20th.
A bill of ex-

ASSUMPSIT by the plaintiff, as drawer, against the change for twenty-five, seventeen defendant, as acceptor of the following bill of exchange:shillings and three-pence, is a " 25 : 17 : 3.

London, 6th March, 1832. bill of exchange for twenty-five “ Three weeks after date pay to me or my order twentypounds, seventeen shillings five, seventeen shillings and threepence, value received. and threepence, and may

“ Robert Phipps. be declared on “ To Mr. Alfred Tanner, as such.

“4, Brabant Court, Philpot Lane."

This bill was declared on as a bill for 251. 178. 3d.

Jones, Serjt., objected, that this was not a bill for twenty-five pounds, seventeen shillings and three-pence.

TINDAL, C. J.-It must mean pounds, and cannot mean anything else.

The defence was usury, and the case was left to the jury on that defence.

Verdict for the defendant. Addison, for the plaintiff.

Jones, Serjt., for the defendant.

[Attornies— Aston, and Tanner.]

In the case of Rexv. Post, Bay. pound was not a money note; but on Bills, 8(n.), a prisoner had al- the twelve Judges were clear that tered a note for one pound into a it was. So, in a case mentioned as note for ten, by substituting ten cited by Lord Mansfield and also by for one before the word “pound” Lord Hardwicke, (Id. 6), where a in the body of the note, and also note contained the words “ I proin the corner. It was urged, that inise not to pay," the word not a note for the payment of ten was rejected.

1833.

CURTIS v. Mills.

Feb. 21st. CASE. The first count of the declaration stated, that In an action for the defendant wrongfully kept a dog, well knowing it to securing a fierce

not sufficiently be accustomed to bite mankind, and that the plaintiff was

dog kept by the

defendant, and bitten by it. The second count charged, that the dog was by which the of a ferocious and mischievous nature, as the defendant ten, the plaintiff

plaintiff' was bitwell knew; and that it bit the plaintiff. The third count notwithstanding

may recover, stated, that the dog was of a ferocious and savage nature, he had on a preas the defendant well knew, and that it was his duty to warned against secure it; but that, not regarding his duty, he did not dog, if the jury

going near the sufficiently secure it, by means of which the plaintiff was think that the

accident was not bitten (a). Plea-General issue.

occasioned by

the plaintiff's own carelessness and want of caution.

(a) As the form of this count is proper a manner, that afterwards, not contained in the books of pre- to wit, on the day and year aforecedents, we think a copy of it said, at London aforesaid, by and may be useful; it was as follows- through the carelessness, negli“And whereas also, the said de- gence, and improper conduct of the fendant, on the day and year afore- said defendant in that behalf, the said, at London aforesaid, and said dog did attack, seize, lay hold from thence for a long space of of, and bite the said plaintiff, and time, to wit, until and at the time did then and there greatly lacerate, of the damage and injury to the hurt, and wound the said plaintiff plaintiff as hereinafter next men- in divers parts of his body, and tioned, to wit, at London afore- thereby the said plaintiff then and said, was possessed of, and wrong- there became and was sick, sore, fully and injuriously kept a cer- lame, and disordered, and so retain dog, which then was of a fe- mained and continued for a long rocious and savage disposition, and space of time, to wit, from thence which the said defendant then and bitherto, during all which time there well knew, and thereupon the said plaintiff thereby suffered it then and there became and was and underwent great pain, and was the duty of the said defendant thereby then and there hindered to take due and proper ineans to and prevented from performning confine and secure the said dog in a and transacting his lawful affairs careful, sufficient, and proper man- and business by him during that ner; yet the said defendant, not time to be performed and transregarding his duty in that behalf, acted; and also, by means of the kept and secured the said dog in premises, the said plaintiff was so careless, insufficient, and im- thereby then and there put to VOL. V.

KK

1833.

CURTIS

MILLS.

It appeared, that the defendant kept a very fierce dog chained in his yard; but, that any one going from the yard gates to the stable would be within the reach of the dog, notwithstanding his chain. It further appeared, that the defendant had bought some planks of Messrs. Goodman, and that he himself carried one of the planks down his yard, the plaintiff, who was in the service of Messrs. Goodman, following him, and carrying the other: the defendant passed by the dog, and as the plaintiff, who followed him, was passing it also, the dog made a spring at him, and bit him very severely. On the part of the defendant it was proved, that the yard had been twice robbed before this time, and that the plaintiff had been several times cautioned on former occasions not to go within the reach of the dog; but no caution was given on the day on which the accident occurred; there was no evidence that the dog had ever bitten any person on any other occasion.

Spankie, Serjt., for the defendant.— The question is, whether this dog was kept by the defendant improperly. The plaintiff had notice that the dog was there, and was a sharp dog; and he was indiscreet in going near him; he need not have passed the dog, and he had been repeatedly cautioned not to go within his reach. The premises had been robbed, and the dog was known as a fierce dog; indeed, I should say, that the reputation of the dog is the security of the premises. If a man keeps a dog to protect his property, it is not surprising that he keeps a sharp dog. Of course he would not keep a poor spiritless fawn

great expense, costs, and charges, said, and hath been and is, by in the whole amounting to a large means of the premises, otherwise sum of money, to wit, the sum of greatly injured and damnified, to ten pounds, in and about endea- wit, at London aforesaid, to the vouring to be cured of the said damage of the said plaintiff of five wounds, sickness, lameness, and hundred pounds; and, therefore, disorder, so occasioned as afore- he brings his suit, &c."

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