1833. HEAD บ. 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-Carlon, 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)— (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 Refused a rule. 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. Payment of mo- ASSUMPSIT for work and labour as an engineer, ney 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. 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 decision in that case was, that payment of money into Court in assumpsit for goods sold and delivered, only amounts to an admission by the defendant of the plaintiff's right of action to the amount of the sum paid in, and 1833. WALKER ບ. RAWSON. 1833. Adjourned Sittings in London after Hilary Term, 1833. BEFORE LORD CHIEF JUSTICE TINDAL. Feb. 20th. A bill of ex change for twen PHIPPS v. TANNER. ASSUMPSIT by the plaintiff, as drawer, against the ty-five, seventeen defendant, as acceptor of the following bill of exchange: shillings and three-pence, is a "25: 17: 3. bill of exchange for twenty-five pounds, seven "London, 6th March, 1832. "Three weeks after date pay to me or my order twenty teen shillings five, seventeen shillings and threepence, value received. and three pence, and may be declared on as such. "To Mr. Alfred Tanner, "Robert Phipps. "4, Brabant Court, Philpot Lane." This bill was declared on as a bill for 25l. 17s. 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. CURTIS v. MILLS. 1833. Feb. 21st. not sufficiently securing a fierce dog kept by the defendant, and by which the plaintiff was bit may recover, CASE. The first count of the declaration stated, that In an action for the defendant wrongfully kept a dog, well knowing it to be accustomed to bite mankind, and that the plaintiff was bitten by it. The second count charged, that the dog was of a ferocious and mischievous nature, as the defendant ten, the plaintiff well knew; and that it bit the plaintiff. The third count notwithstanding 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 secure it; but that, not regarding his duty, he did not sufficiently secure it, by means of which the plaintiff was bitten (a). Plea-General issue. (a) As the form of this count is not contained in the books of precedents, we think a copy of it may be useful; it was as follows"And whereas also, the said defendant, on the day and year aforesaid, at London aforesaid, and from thence for a long space of time, to wit, until and at the time of the damage and injury to the plaintiff as hereinafter next mentioned, to wit, at London aforesaid, was possessed of, and wrongfully and injuriously kept a certain dog, which then was of a ferocious and savage disposition, and which the said defendant then and there well knew, and thereupon it then and there became and was the duty of the said defendant to take due and proper means to confine and secure the said dog in a careful, sufficient, and proper manner; yet the said defendant, not regarding his duty in that behalf, kept and secured the said dog in so careless, insufficient, and im VOL. V. vious day been warned against going near the dog, if the jury think that the accident was not occasioned by the plaintiff's own carelessness and want of caution. proper a manner, that afterwards, K K 1833. CURTIS บ. 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 means of the premises, otherwise greatly injured and damnified, to wit, at London aforesaid, to the damage of the said plaintiff of five hundred pounds; and, therefore, he brings his suit, &c." |
