specting the costs of bringing and defending the several suits aforesaid); that the arbitrators having taken the said matters into consideration, awarded that defendant should pay to plaintiff 4447.; that plaintiff should pay fiveeighths, and defendant threeeighths of the costs of the said several suits; that the money already paid by either of them should be considered as part payment of his proportion; and that upon payment of the 4447. and the costs, mutual releases should be executed :-Held, on demurrer, that plaintiff might recover; for nothing appearing on the record to shew that the arbitrators had not taken all the matters into consideration; and as plaintiff, being originally liable for the whole 2,5007., must continue liable for all except the 4447. awarded to him; the first part of the award was sufficiently certain: Held also, that the second part of the award was sufficiently certain, because it would be made so by the taxation of the costs by the master; and that it would also be final if no dispute existed respecting the amount of the 7 te money already paid; and that if such dispute did exist, or if the arbitrators had neglected to consider any of the matters submitted to them, defendant should have pleaded the fact instead of demurring. Cargey v. Aitcheson, 4 G. 4. Page 433 4. Declaration in debt on a joint and several bond, in the penal

**

sum of 1000l., conditioned for the performance of an award to be made on or before the 1st February, averred, that before that time expired, the parties to the bond by deed poll indorsed on the back of the bond, agreed to give the arbitrators further time,

VOL. III.

till the 1st March, to make their award; and that the award was accordingly made within the enlarged time, but not performed by the parties against whom it was made:-Held, on demurrer, that debt was maintainable upon the bond. Greig v.Talbot, 4 G. 4. Page 446

5. Where a verdict was taken by consent in an action for diverting a water-course, subject to the award of an arbitrator, to whom, by order of nisi prius, all matters in difference were referred, with liberty to kim to regulate the future enjoyment of the water, according to the respective rights of the parties, and one of the parties died before the award was made:-Held, that the arbitrator's authority was thereby revoked, and the Court set aside an award made subsequently. Rhodes v. Haigh, 4 G. 4. 6. If the verdict and judgment will embrace matters in difference submitted to an arbitrator, under an order of nisi prius, the death of either of the parties before award will not revoke the submission; but aliter if the verdict and judgment do not embrace all matters in difference. Bower v. Taylor, 4 G. 4. 610

BAIL.

608

able the 16th April, became bankrupt on 3d April, and obtained his certificate on 26th June:-Held, that as the bankruptcy took place before the bailbond was forfeited, the debt was proveable under the commission, and consequently the bail were discharged. Littlewood v. Crowther, 4 G. 4. Page 533

BAIL BOND.

See PEERAGE.

BAKERS.

See CERTIORARI, 2.

BANKER.

1. A. and B. and Co., country bankers, have a cash account with C. and Co., London bankers, who are in the habit of transmitting to the former, monthly statements of mutual debts and credits. A. dies, leaving a large balance due from himself and partners to C. and Co., who, for two months afterwards, make no alteration in their own books as to the mode of keeping the account, but continue it as before. In the interval, money is transmitted to C. and Co. from the country bank, sufficient to pay off the balance due from the firm at the time of A.'s death. During the two months no accounts are transmitted to the country bank, but at the end of that time two separate accounts are sent; one called the old account, made up to the death of A., without giving credit for the money received since his death, in liquidation of the balances at that time due from the firm; and the other called the new, comprising the two months, giving credit for the sums received during that period.

In action by C. and Co. on a joint and several indemnity bond, given by A. and B. against the heirs of A., for the balance due at his death-Held, that C. and Co. by continuing their own private account against A. and B. for two months after the death of A., as theretofore, were not estopped from suing his heirs. Simpson v. Ingham, 4 G. 4.) Page 249 2. Where the customer of a country banker was in the habit of paying in, bills of exchange, which were never written short, but entered to the full amount on the day they were paid in, in the pass book, and also in the books of the bank, to the credit of the customer, as "bills" (not as "cash"), and, after such entry, the customer was at liberty to draw to the full amount by checks, and the bankers became insolvent, having in their possession several of the customer's bills so paid in, and the assignees having converted the same to their use:-Held, that the customer (who had a cash balance in his favor at the time of the bankruptcy) might maintain trover against the latter for the amount, there being no evidence that he had, in point of fact, agreed that when the bills were paid in, they were to become the property of the bankers. Thompson v. Giles, 4 G. 4.

"

733 3. Semble, that a custom for bankers to use bills so deposited, by paying them away in the course of their banking business, is not good in point of law, and certainly cannot bind the customer without his express assent. A banker, however, may negociate bills deposited by his customer, to such

3. A. and B. having dissolved part

nership, an award was made between them, by which B. was directed to pay A. a sum certain, and to pay several partnership debts. B. gave a warrant of attorney for securing the money awarded, with a stipulation in the defeasance, that if A. should be called upon to pay any of the partnership debts, he should be at liberty to enter up judgment. B. became bankrupt, and A. proved his private debt under the commission, and received a dividend thereon. A. was afterwards sued for a partnership debt, and entered into an arrangement with the creditor to pay it by instalments, and then entered up judgment, and took out execution on the warrant of attorney, before B. had obtained

his certificate:-Held, that A. was not deprived of his remedy by 49 Geo. 3. c. 121. s. 8 and 14. Dally v. Wolferston, 4 G. 4.

Page 271 4. Property acquired by an uncertificated bankrupt, after bankruptcy, does not absolutely vest in his assignees by virtue of the assignment, although they may claim it; but if they remain passive, and do not interfere, he has a right to such property against all other persons. Drayton v. Dale, 4 G. 4.

534 5. Where a debtor of an uncertificated bankrupt made a promissory note, payable to the bankrupt," or his order," in discharge of a debt contracted before bankruptcy, and the bankrupt indorsed it for a bonâ debt to A., who indorsed it to B. for valuable consideration, and B. sued the maker:-Held, first, that the maker, by the terms of his note, was estopped from saying, that the bankrupt had no authority to indorse; and, second, that the assent of the assignees was not necessary to enable the bankrupt to negociato the note by indorsement. Id. ib. 6. Where A. the dormant partner of B. in a trading firm, allowed the latter, on the dissolution of the partnership, to remain in the order and disposition of the partnership property, effects and debts; and B. after continuing in trade for about two years afterwards on his sole account, became bankrupt:-Held, that A.'s share of the partnership property and effects, and of the debts due on the partnership account at the time of the dissolution, passed to B.'s assignees under 21 Jac. 1. c. 19. s. 11. re Gilpin, 4 G. 4.

3 G 2

In

636

See DEBT.

GUARANTY.-INSOL

VENT, 1.-STAMP, 2.

1. A bill of exchange, drawn 21st December, at two months, for 301. on a two-shilling stamp, and altered on the same day before the acceptance, to the 31st Deecember, does not require a halfcrown stamp within the 55 G. 3. c. 184. Upston v. Marshall, 4 G. 4.

Page 198 2. Where a foreign bill of exchange 'was drawn by A. upon and accepted by B. payable to the order of C. and a person representing himself to be C. indorsed the bill to D., for value, and the indorsement, as was alleged, turned out to be forged:-Held, in error, that in action by the indorsec, against the acceptor, it was unnecessary to give positive proof of the identity of the indorser, as the person to whom the bill was really payable, primâ facie evidence being sufficient. Semble, that if such evidence is objected to as insufficient, the proper course for taking advantage of the objection is on denurrer, and not by bill of exceptions. Bulkeley v. Butler, 4 G. 4. 625 3. A., after drawing a bill of exchange, on B., which was ac-cepted by the latter, indorsed it to C., who re-indorsed it to A. in pursuance of an agreement, (without consideration) that he should do so, as security for the payment of it by the acceptor, and for the purpose of rendering the bill more negotiable. On

See AWARD, 4.-ESCROW. 1. A surety bond by three for the payment of 1000l. worded "for which payment to be well and faithfully made, we bind ourselves, and each of us for himself, for the whole and entire sum of 1000l. each;" is a several, and not a joint and several bond, and may be enforced against the obligors, severally. Tearing off the seal of one of the obligors of such a bond does not avoid it as against the others and if the obligor, against whom it is enforced, is entitled to contribution, it seems his remedy is in equity only. Collins v.Prosser, 4 G. 4.

10 99FTIC 12 2. A bond executed with the usual formalities may operate as a deed in præsenti, though at the time of execution it is expressly agreed that it shall not take effect, until a certain event has happened. Murray v. Earl Stair, 4 G. 4. 278 3. Where the obligor of a post obit bond craves oyer thereof, and sets out the condition, it is not necessary for the obligee to aver the death of the person at whose decease the money is to become payable. Id. ib. 4. A bond conditioned for the payment of 20001. by A. to B., six calendar months next after the death of C., is not within 8 & 9 W. 3. c. 11. s. 8. requiring the sugges

Plaintiff's declared against defendtants on their common law liability as carriers, for the loss of a parcel, and it appearing that the course of dealing between the ni parties was for plaintiffs to pay defendants an annual sum for the carriage of parcels, between L. and D., and on the receipt of beach parcel defendants were in the habit of delivering to plaintiffs a written acknowledgment, stating that they undertook to deliver the same as directed, 8 fire and robbery excepted;" and the jury having found that this was the contract between jothe parties, though the loss was Toccasioned by negligence only: Held, a fatal variance. Latham V. Rutley, 4 G. 4.

CASE.

See EVIDENCE, 5.-WAY.

211

1. Declaration in case against a clerk of the Insolvent Debtors' Court, for wrongfully, maliciously, false

ly, and unlawfully making out an order, purporting to be an order of that Court for the discharge forthwith of an insolvent debtor, who was adjudged by the Quarter Sessions to be detained in custody for two years at the suit of plaintiff, with an averment that the Insolvent Debtors' Court did not pronounce any such order, or give any autho rity to the defendant to write, make out, or issue the same, whereby the prisoner was discharged forthwith, and by means whereof plaintiff was injured, and had lost all means of enforcing payment of the debt, and costs due to him from the prisoner.Error being brought on the judgment of C. P.:-Held, that the supposed order of the Insolvent Debtors' Court was not to be understood as the order of that Court until set aside, and that the declaration was not demurrable for not averring that the supposed order was in fact set aside. Whitelegg v. Richards, 4 G. 4. Page 237 2. Where negroes in a state of slavery, in a colony of Spain, escaped from their master's plantation, and took refuge, and were received on board a British vessel of war, whilst sho was stationed at an island captured by his Majesty's arms from the United States in time of war; and after notice given to the officers commanding on the station, that they were run-away slaves, the officers carried them to, and left them at, a British colony :Held, that case would not lie in this country against the officers for harbouring and detaining such negroes, even though by the lex loci, whence they escaped, slavery was permitted. Forbes v. Cochrane, 4 G. 4.

679