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![handle is hein.slavery/ssactsengr0054 and id is 1 raw text is: commencement of the action, was a person keeping a warehouse, and seeking a liveli-
hood, and trading and dealing within the City of London, &e.
Reader shewed cause, and objected, that the defendant, by pleading a tender, and
paying the 41. into Court, had waived the benefit of the Act, which was passed in ease
of defendants ; and it is a maxim, that a party may waive that which is for his
benefit. Here the defendant, if he had intended to avail himself of the Act, should have
stood upon the Act alone, without pleading a tender; for by such plea, he has recog-
nised the cause of action, and that it was well brought. Also, by paying the money
into Court, he compelled the plaintiff to go on with the action, in order to obtain
the money out of [197] Court; and if the plaintiff had stopped, after taking the
money out of Court, he would, by reason of the plea of tender, have been subject
to costs.
Lawes, contrA, argued, that the Act does not deprive this Court of jurisdiction
in cases where the debt does not exceed 51., giving jurisdiction, exclusively, to the
Inferior Court, as in the Westminster Court of Request Act; and, therefore, the
defendant could not plead the Act in Bar (a). But here, the jurisdiction of this
Court being concurrent, the defendant was bound to plead to the action ; and being
bound, his pleading to it shall never operate as a waiver, which imports a voluntary
act on his part.
Lord Ellenborough C.J. referred to Sandby v. Miller (b), as an authority for grant-
ing the present application. There the defendant paid money into Court, and yet was
allowed to enter a suggestion on the roll like the present. And he added, that the
suggestion and plea of tender would be on the record, and, therefore, if the effect
of that plea was to preclude the defendant from having the suggestion, the plaintiff
would still have the benefit of the objection.
Reader then made another point, that the original demand was reduced below 51.
by a set-off ; but that failing, the Court (c) made the rule absolute.
Rule absolute.
[198] DIXON against BELL. Tuesday, June 18th, 1816. The law requires of persons
having in their custody instruments of danger, that they should keep them with
the utmost care : therefore, where defendant, being possessed of a loaded gun,
sent a young girl to fetch it, with directions to take the priming out, which was
accordingly done, and a damage accrued to the plaintiff's son in consequence of
the girl's presenting the gun at him and drawing the trigger, when the gun went
off: Held that the defendant was liable to damages in an action upon the case.
[See Clark v. Chambers, 1878, 3 Q. B. D. 330; Earl v. Lubbock, [1905] 1 K. B. 257;
Dominion Natural Gas Company v. Collins, [1909] A.C. 646.]
.Case. The plaintiff declares that the defendant was possessed of a gun, then being
in a certain messuage, situate, &c.; and that he, well knowing the same to be loaded
with powder and printing types, wrongfully and injuriously sent a female servant to the
said messuage, to fetch away the gun so loaded, he well knowing that the said servant
was too young, and an unfit and improper person to be sent for the gun, and to be
entrusted with the care or custody of it; and which said servant afterwards, and
while she was so sent and entrusted by the defendant, and had the custody of the
said gun accordingly, carelessly and improperly shot off the same, at and into the
face of the plaintiff's son and servant, and struck out his right eye and two of his
teeth, whereby he became sick, &c., and was prevented from performing his lawful
business, and the plaintiff was deprived of his service, and put to great expence in
procuring his cure, &c. There was a second count, for taking such improper care of
the gun, knowing that it was loaded, that the gun was afterwards discharged against
the plaintiff's son, &e. Plea, not guilty. At the trial, before Lord Ellenborough C.J.,
at the last Middlesex sittings, the case was thus:
The plaintiff and defendant both lodged at the house of one Leman, where the
defendant kept a gun loaded with types, in consequence of several robberies having
(a) See 3 T. R. 452, Taylor v. Blair. 1 East, 352, Parker v. Elding.
(b) 5 East, 194.
(c) Abbott J. was absent upon the special commission.
1023
5 M. & S. 197.
DIXON V. BELL](ViewImageLocal?handle=hein.slavery/ssactsengr0054&div=1&collection=&method=preview&ext=.png&size=3)