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such circumstances, is a privileged communication; and no action will lie for what is thus written, unless the writer be actuated by malice. Cockayne v. Hodgkisson, 543 3. A., being a tenant of B., was desired by B. to inform him if he saw or heard anything respecting the game. A. wrote a letter to B., informing B. that his gamekeeper sold game:Held, that, if A. had been so informed, and believed the fact to be so, this was a privileged communication, and that the gamekeeper could not maintain any action for a libel. Ibid.

4. In such a case the defendant may give in evidence representations made to him as to the conduct of the gamekeeper, but cannot go into evidence of the acts done by the gamekeeper. Ibid.

5. Libel, imputing that the plaintiff had received rose wood, knowing it to have been stolen. Pleas of justification, stating that B. had stolen the rose wood from A., and that the plaintiff had received it, knowing it to have been stolen:-Held, that the defendant's counsel might ask what B, said, with a view of proving that B. committed the larceny; and held, also, that the plaintiff's counsel might ask the defendant's witnesses, what was the plaintiff's general character for honesty. Powell v. Harper, 590

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1. If, since the stat. 9 Geo. 4, c. 14, a defendant by a letter admit a balance to be due, without stating the amount, this will take the case out of the statute of limitations, so as to entitle the plaintiff to nominal damages. Dickenson v. Hatfield,

46

2. The object of the stat. 9 Geo. 4, c. 14, was to procure that in writing for which words were previously sufficient. Ibid.

3. A letter, stating that an appointment of funds to pay a debt due from the defendant to the plaintiff had been made, and that Mr. Y. was one of the trustees, but that some time must elapse before the trustees would be in cash, will not take the case out of the statute of limitations, as it is at most only a promise to pay as soon as the trustees are in cash. But, semble, that the creditor's remedy would be by a bill in equity against the trustees. Whippy v. Hillary,

209

4. A defendant had written a letter to T., to make a proposition to the plaintiff respecting a debt he owed him; and in this letter he desired T. to arrange with the whole of his creditors. T. wrote a letter to the plaintiff, offering an acceptance for 7s. 6d. in the pound on the debt;-Held,

not sufficient to take the case out of the statute of limitations. Gibson v. Baghott,

211

5. A., who was tenant for life, with a power of appointment by will attested by three credible witnesses, by his will attested by three witnesses appointed the lands to B. for life, and after her death to C. in fee. B. was one of the witnesses to the will, and the appointment to her was therefore void. On the death of the testator, the husband of B. entered, and held the land till his death, which was three years after the death of B.:-Held, that the statute of limitations did not begin to run against C. till the death of B. Doe d. Allen v. Blakeway, 563

MACHINE BREAKING.

On an indictment on the stat. 7 & 8 Geo. 4, c. 30, s. 4, for breaking a threshing machine, the Judge allowed a witness to be asked whether the mob by whom the machine was broken did not compel persons to go with them, and then compel each person to give one blow to the machine; and also whether, at the time when the prisoner and himself were forced to join the mob, they did not agree together to run away from the mob the first opportunity. Rex v. Crutchley.

MAGISTRATE.

133

1. The general rules of law require of magistrates, at the time of a riot, that they should keep the peace, and restrain the rioters, and pursue and take them; and to enable them to do this, they may call on all the king's subjects to assist them; and all the king's subjects are bound to do so, upon reasonable warning. In point of law, a magistrate would be justified in giving fire-arms to those who thus come to assist him, but it would be imprudent in him to do so. Rex v. Pinney,

254

2. It is no part of the duty of a

magistrate to go out and head the constables, neither is it any part of his duty to marshal and arrange them; neither is it any part of his duty to hire men to assist him in putting down a riot; nor to keep a body of men, as a reserve, to act as occasion may require. Neither is he bound to call out the Chelsea pensioners, any more than the rest of the king's subjects; nor is it any part of his duty to give any orders respecting the fire-arms in the gunsmiths' shops. Nor is a magistrate bound to ride with the military; if he gives the military officer orders to act, that is all that is required of him. Ibid.

3. Mere good feeling and upright intention in a magistrate will be no defence, if he has been guilty of a neglect of his duty. Nor will the fact of his having acted under the advice of others be any defence for him. The question is, whether he did all that he knew was in his power, and which could be expected from a man of ordinary prudence, firmness, and activity. Ibid.

4. On the trial of a magistrate for neglect of duty, he ought not to be found guilty, unless all the Jury are satisfied that he has been guilty of the same act of neglect; and if four

jurors think him guilty of one act of neglect, and eight think him guilty of another act of neglect, that is not sufficient. Ibid.

5. A magistrate may assemble all the king's subjects to quell a riot, and may call in the soldiers, who are subjects, and may act as such; but this should be done with great caution. At the time of a riot, a magistrate may repel force by force, before the reading of the proclamation from the Riot Act. Rex v. Kennett, 282, n.

6. If, on a riot taking place, a magistrate neither reads the proclamation from the Riot Act, nor restrains nor apprehends the rioters, nor gives any order to fire on them, nor makes

any use of a military force under his command, this is prima facie evidence of a criminal neglect of duty in him; and it is no answer to the charge for him to say that he was afraid, unless his fear arose from such danger as would affect a firm man; and if, rather than apprehend the rioters, his sole care was for himself, this is also neglect. Ibid.

MALICIOUSLY SUING OUT A COMMISSION OF BANKRUPT.

In an action for maliciously suing out a commission of bankrupt, it is not sufficient to prove merely that the commission was superseded, as a supersedeas may proceed upon strict legal grounds, and does not, therefore, furnish evidence of the want of probable cause. Hayv. Weakley, 361 MALICIOUS PROSECUTION.

1. In an action for malicious prosecution against A. and B., if it appear that both A. and B. entered into a joint recognizance to prosecute and give evidence, but it also appear that A. only employed the attorney, and that B. attended before the magistrate and the Grand Jury at the request of the attorney, the Judge will direct the acquittal of B. Eager v. Dyott,

2. If C. be entrusted to receive money for A., with a written direction for its application, and C. write a letter to A. stating that he has not received it, when in fact he has, this is sufficient evidence of probable cause to render a prosecution of C., under the statute 7 & 8 Geo. 4, c. 29, s. 49, not malicious. Ibid.

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between the parties. The appearance of the injury was consistent with the supposition, either of a blow with a hammer, or of a push against the lock or key of a door:- Held, that, if it was occasioned by a blow with a hammer or any other hard substance held in the hand, it was sufficient to support the indictment; but otherwise, if it was the result of a push against the door. Rex v. Martin, 128

2. An indictment for manslaughter charged, that the deceased was on horseback, and that the prisoner struck him with a stick, and that the deceased, from a well-grounded apprehension of a further attack, which would have endangered his life, spurred his horse, which became frightened, and threw him, giving him a mortal fracture. The evidence was, that the prisoner struck the deceased with a small stick, and that the latter rode away, and the former rode after him; whereupon the deceased spurred his horse, which then winced, and threw him, whereby he was killed:-Held, that this evidence sufficiently supported the indictment. R. v. Hickman, 151

3. An indictment for manslaughter charged that A. gave to the deceased divers mortal blows at P., in the county of M., and that the deceased languished and died at D. in the county of K.; and that the prisoner was then and there aiding in the commission of the felony:-Held, that the indictment was good, and that the word there referred to P., in the county of M. Rex v. Hargrave, 170

4. Although all persons present at and sanctioning a prize fight, where one of the combatants is killed, are guilty of manslaughter, as principals in the second degree; yet they are not such accomplices as to require their evidence to be confirmed, if they are called as witnesses against other parties charged with the manslaughter. Ib.

5. It is not every slight provocation, even by a blow, which will, when

the party receiving it strikes with a deadly weapon and death ensues, reduce the crime from murder to manslaughter. Rex v. Lynch, 324

6. Any person, whether a licensed medical practitioner or not, who deals with the life or health of any of his Majesty's subjects, is bound to have competent skill; and is bound to treat his or her patients with care, attention, and assiduity; and if a patient dies for want of either, the person is guilty of manslaughter. Rex v. Spiller,

333

7. An allegation in an indictment, charging that the death of a person was caused by a plaster made and applied by the prisoner, is sufficiently proved, by shewing that three plasters were applied, and that two of them were applied by the prisoner, and the third made from materials furnished by the prisoner. Ibid.

MASTER AND SERVANT.

A baker delivered bread from week to week, and was paid many sums by the housekeeper of his customer, and receipted weekly bills for a period of time subsequent to a time for which the housekeeper had not paid him:— Held, in an action by him to recover from his customer the amount of the unpaid bills, that the question of negligence was not raised, and that the plaintiff was entitled to the verdict, as the defendant did not prove that he had given the housekeeper money for the purpose of paying the bills in question. Miller v. Hamilton, 433 MEDICAL PRACTITIONER.

See MANSLAUGhter, 6, 7.

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of the parties who signed the acknowledgment retired from it. The interest was paid from time to time by the different firms, till the last became bankrupt. The clerk continued to serve all the different firms, and was cognizant of the different changes:Held, that he might, notwithstanding, recover the money he had advanced from the two persons who signed the acknowledgment. Blew v. Wyatt, 397 MURDER.

See MANSLAUGhter.

1. A. was fighting with his brother; and to prevent this B. laid hold of A., and held him down upon a locker on board the barge in which they were, but struck no blow. A. stabbed B.: -Held, that if B. did nothing more than was sufficient to prevent A. from beating his brother, and had died of this stab, the offence of A. would have been murder; but that, if B. did more than was necessary to prevent the beating of A.'s brother, it would have been manslaughter only. Rex v.

Bourne,

120

2. A. was charged with suffocating B. by placing both her hands about the neck of B.:-Held, that A. might be convicted on this indictment if B. was suffocated in any manner, either by A. or by any other person in her presence, she being privy to the commission of the offence. Rex v. Culkin, 121

3. The phrase " about the neck," in an indictment for murder, is good, and is not open to the same objection as "about the breast." Ibid.

4. To justify a conviction on an indictment charging a woman with the wilful murder of a child of which she was delivered, and which was born alive, the jury must be satisfied affirmatively that the whole body was brought alive into the world; and it is not sufficient that the child had breathed in the progress of the birth. Rex v. Poulton,

329

5. Where the indictment in such a case states the child to have been born a bastard, the proof that it was so, lies on the prosecutor; but evidence that the prisoner told a person that she had only mentioned her being with child to the father of it, who had lately got married, was held to be suf ficient proof of the allegation. Ibid.

6. If a child has breathed before it is born, this is not sufficiently life to make the killing of the child murder. There must be an independent circulation in the child, or the child cannot be considered as alive for this purpose. Rex v. Enoch,

NEGLECT OF DUTY. See MAGISTRATE.

NEGLIGENCE.

539

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5. In an action of trespass for injury done to a horse by a pony and chaise running against it, it was sworn, on the part of the defendant, that his wife was holding the pony by the bridle, and a showman came by and frightened the pony, who ran off with the chaise-Held, that, if true, this was a good defence on a plea of not guilty. Goodman v. Taylor, 410

6. In an action against the captain of a steam vessel for swamping a loaded wherry on the river by a swell produced by a too rapid rate of passage, the jury, to find for the plaintiff, must be satisfied that the mischief was occasioned by the swell alone: and if they think it doubtful whether it was or not, or think that the plaintiff contributed to the injury he sustained, by his own improper conduct, either in mismanaging or overloading the boat, they must find their verdict for the defendant. Lurford v. Large, 421 7. In an action for the negligent driving the defendant's carriage against that of the plaintiff, the plaintiff cannot examine his servant who drove his carriage, without releasing him. Wake v. Lock, 454

NEW ASSIGNMENT. A replication of de injuria in trespass, with a new assignment that the defendant committed the trespasses with more violence and in a greater degree than was necessary for the purposes in the plea mentioned, is demurrable. Thomas v. Marsh, 596

NOTICE TO PRODUCE.

See ARSON, 2.

1. A cause came on to be tried at the Assizes on a Wednesday morning; on the previous Monday evening, the defendant's attorney, being at the assize town, was served with a notice to produce a book, which would probably be at his office, which was nineteen miles from the assize town:-Held,

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