take. If it be considered that the county is sufficiently stated in this declaration, that is sufficient.

If the objection to the declaration be held tenable, still it is apprehended the court will allow the amendment to be made. This is plainly only a mistake in point of form.

Coleridge Serjt., and W. C. Rowe, were to have appeared for the defendant, but were engaged at Guildhall.

DENMAN C. J.-We cannot quite satisfy ourselves that we can go the length of saying that the declaration, as it stands at present, is sufficient to support the verdict, though we have tried hard to convince ourselves that we may; but you may amend upon payment of the costs of this application and of the rule. Probably my brother Coleridge will be satisfied with this. PARKE J.-Your verdict will of course stand upon making this amend

ment.

Rule for arresting the judgment discharged upon

payment of costs.

Rule to amend absolute, upon payment of costs.

CHEETHAM and Wife v. BUTLER.-p. 453.

A promissory note, payable to M. M., without the words "order" or "bearer," and without any indication of the time of payment, is not a promissory note payable to the bearer on demand within 55 Geo. 3, c. 184, sched. part I.

The KING v. The VESTRYMEN and VESTRY-CLERKS of the Parish of ST. LUKE'S, Middlesex.-p. 464.

Where a statute directs an election by poll, semble that the poll may be taken from the holding up of the electors' hands. But if the tellers appointed to take the numbers differ, and a poll is demanded and refused, the court will grant a mandamus to enter adjournment of the election meeting, and to proceed to complete the election.

DOE, on the demise of ISHERWOOD v. ROE.—p. 476.

A notice at the foot of a declaration in ejectment, advising the tenant to appear and defend in due time, is insufficient.

DODSWORTH v. BLANCHARD. (a)—p. 549.

Where the plaintiff replies one matter to a special plea, the court will not set aside a verdict found upon an issue joined on such replication, upon an affidavit showing another answer to the plea which was not replied.

TRESPASS and false imprisonment against a magistrate who had issued a warrant, under which the defendant had been apprehended. Plea not guilty, and tender of 25l. as amends. The replication took issue upon the sufficiency of the amends tendered. The case was tried at the last Yorkshire Summer assizes, before Denman C. J. when the jury being of opinion that the amends tendered were sufficient, found a verdict for the defendant, which

F. Pollock now moved to set aside, and to enter a verdict for the plaintiff for 251. damages. The object of the motion is to get rid of the second plea, and to give effect to the finding of the jury by entering a verdict to the amount

(a) This motion was made in the early part of the term.

The

of 251. upon the general issue. This was not a case in which tender of amends could be made by the magistrate, as from the circumstances under which the warrant issued, the case is not within the statute, 24 Geo. 2, c. 24, s. 2. [PARKE J. The pleadings cannot be opened upon this ground, because by the form of your replication, you have admitted that it is within the statute. jury can only try the issue upon the record. The replication should have traversed that part of the plea which brings the case within the statute. TAUNTON J. The plaintiff might have replied the facts which showed that this was not a case within the statute.] The plaintiff could not plead double. A party may make an application for a new trial, and to amend his pleadings. There has been a failure of justice in this case. [PARKE J. There is no greater failure of justice than there is in every case of a special plea, to which the plaintiff has replied a matter which has turned out not fortunate at the trial.] Where the plea is quite false, the court, it is submitted, will not allow the defendant to succeed finally upon it, if the plaintiff applies to the court to be relieved. [PATTESON J. Suppose a plea of infancy, to which the plaintiff replied, that the goods supplied were necessaries, and at the trial it turned out that the defendant was not an infant, and the jury found that the goods supplied were not necessaries, would the court allow the plaintiff afterwards to amend his pleadings by traversing the infancy?] It is submitted that the court would interfere in such a case for the purposes of justice. [DENMAN C. J. There is no such case in the books. TAUNTON J. I never heard of such a course being pursued by the court.]

DENMAN C. J.-The same rule must apply to every replication. Parties must make their election as to what they shall reply, and must be bound by their election, Rule refused.

DAVIS v. GOMPERTZ.-p. 607.

On a warrant of attorney subject to a defeasance, stating that the warrant is given to secure a certain sum to be paid by instalments, after the defendant has been taken in execution for one instalment, he may be brought up by habeas corpus and charged further in execution with the second instalment, without a rule to show cause why he should not be so charged.

JUDGMENT had been obtained against the defendant on a warrant of attorney in the penal sum of 4007., subject to a defeasance, by which it was provided that the whole amount due should be paid by instalments, and that execution should issue from time to time on non-payment of each instalment. The defendant had been charged in execution for 45l., and another instalment for 1427. 6s. having become due, the defendant was on the first day of this term, brought up under a writ of habeas corpus from the King's Bench prison, with a view to charge him in execution for the latter sum also. On that occasion the defendant produced a rule for the allowance of a writ of error, which had been granted that day. (Belshaw v. Marshall, 1 Nev. & M. 689.) He was therefore simply remanded. (a) On the 6th of November the defendant gave notice of bail in error, and on the 7th the plaintiff obtained a rule for better bail. Notice of justification for the 11th was given by the defendant on the 8th, and countermanded on the 9th. The defendant being again brought up by habeas on the 21st November,

Ball moved that he should be charged in execution with the further sum of

(a) Upon an affidavit that the warrant of attorney to confess judgment contained the usual release of errors, the court would no doubt have set aside the allowance without driving the defendant in error to plead such release in bar, and thereby admit (so far as they could be admitted) the errors assigned. This course would have rendered any proceedings with respect to bail unnecessary.

1427. 6s. Bail not having been paid in, the allowance of the writ of error no longer operates as a supersedeas. The judgment in this case is for 400/. The defendant has only been charged in execution for 451. A further instalment having become due, the plaintiff is now entitled to charge the defendant in execution for the amount of the instalment.

R. V. Richards contrà. The defendant has already been charged in execution in this action, and cannot be charged a second time. Assuming that the defendant can be so charged, the plaintiff has not taken the proper course for that purpose. He should have applied for a rule to show cause why the defendant should not be charged in execution with the further sum of 1427. 6s. PER CURIAM. The plaintiff is entitled to charge the defendant in execution for the further sum of 1427. 6s., and a special entry may be made in the marshal's book, so that the defendant may be discharged on payment of the two instalments.

The master drew up a committitur accordingly.

REX v. LANGHORN.-p. 618.

Where a relator has twice obtained rules nisi for informations in the nature of a quo warranto calling upon a party to show why he exercised the office of mayor of a borough, which rules have been discharged upon cause shown, the court will not allow the same relator, on an application against the succeeding mayor, to raise the same questions as to the title of the former mayor to exercise the office.

FOLLETT, in last Easter term, obtained a rule nisi calling upon Mr. Langhorn to show cause why an information in the nature of a quo warranto should not be exhibited, requiring him to show by what authority he exercised the office of mayor of the borough of Berwick upon Tweed, from the 29th Sept. 1831, to the 28th Sept. 1832. Five grounds were stated on the rule, of which the first three were as follows. First, that there was not a good presiding officer at the meeting at which Langhorn was elected mayor. Second, that the presiding officer was not a legal mayor, he not being a resident within the borough, paying scot and lot, and participating in the assessments and burthens with the rest of the burgesses, at the time of his election. Third, that Langhorn was not a good burgess, inasmuch as there was no corporate meeting duly convened at which he was elected or admitted a burgess, and there was no good presiding officer at the meeting at which his supposed election as burgess took place. It appeared upon affidavits filed, that at the several meetings at which Langhorn had been elected a burgess and subsequently mayor, Orde presided as mayor; that during the mayoralty of Orde an application had been made to this court on behalf of Thompkins, the present relator, calling upon Orde to show by what authority he exercised the office of Mayor of Berwick; that the court granted a rule nisi for an information in the nature of a quo warranto, which upon cause shown the court disharged; that in the next term a second rule was obtained on behalf of Thompkins, and that upon cause shown the court said that they ought not to have granted the rule, and having discharged it, refused to give costs, on the ground that they had acted improvidently in granting the rule. The grounds alleged in the rules against Orde, were the same as those now alleged on the second ground in the present rule.

Campbell S. G. and Ingham, in showing cause, objected that the relator could not now indirectly raise the question as to whether Orde was a good mayor, as he had attempted to do in each of the three grounds above stated, it being quite clear that he could not do it directly after what had taken place; and for this Wharton's case, (not reported) was cited.

Follett and Wilcock contra, contended that Thompkins, as one of the public,

was entitled to complain, if he thought himself aggrieved by the election of Langhorn.

The court, however, observed that the relator had twice before complained of the same matter, and refused to make the rule absolute with reference to the objection that Orde was not a good mayor.

It being further objected that at the election of Langhorn as a burgess there was no corporate meeting duly convened, because due notice had not been given of the meeting, the court, on the question of want of due notice, made the rule absolute. Rule absolute.

REX v. WILLIAM BRYANT.-In the matter of DOE v. ROE.-p. 666. A rule for an attachment for non-performance of the terms of the consent rule is properly entitled as in an action against the casual ejector, although obtained upon affidavits entitled as in an action against the tenant.

IN 1829 an attachment issued for non-payment of costs upon a consent rule in ejectment, brought on the demise of William Bryant. The consent rule. was entitled Doe v. Roe simply, and the attachment was entitled, "In the matter of Doe v. Roe," as above, but the affidavits upon which the rule for an attachment was grounded, were entitled "Doe d. Bryant v. Chaddington."

Platt showed cause. The title of the attachment must follow that of the consent rule. The declaration is entitled Doe v. Roe, without mentioning any demise, and the consent rule is drawn up in this way. The attachment, therefore, is entitled quite correctly. It is said that the attachment and the affidavit cannot stand together, for that they are entitled differently. But as the rule itself was entitled Doe v. Roe, the attachment was regular; and as the affidavits for the attachment may have been prepared in the action of Doe v. Chaddington, therefore that also is sufficient.

But if the attachment be irregular, it cannot now be set aside on that ground; it is now too late to take advantage of the irregularity. The attachment was not granted as a rule absolute in the first instance, and when cause was shown, the rule nisi was entitled as the attachment afterwards, and the objection should have been taken then, before cause shown.

Alexander and Humfrey, contrà. The point upon which the rule nisi was granted was, whether or not the rule on which the attachment issued was properly entitled. The affidavit and rule are differently entitled. If the rule is rightly entitled, it is not founded upon a properly entitled affidavit; and if the affidavit was correctly entitled, the title of the rule is wrong. With regard to the length of time that has elapsed, and the omission to take advantange of the irregularity upon showing cause against the rule for an attachment, it may be admitted that any subsequent step in the case would be a waiver of a mere irregularity, but here the attachment is absolutely void, and no delay can cure it. [PATTESON J. This is all quite right. The consent rule is entitled Doe v. Roe, and as the attachment is drawn up upon the consent rule, that would consequently be entitled in the matter of Doe v. Roe. The affidavits are differently entitled, because they are sworn after the real defendant has been substituted for the casual ejector. PARKE J. You are certainly too late to take advantage of an irregularity.] If a party is in custody, as here, upon a wrong instrument, the court will not think any time too late.

DENMAN C. J.-We are none of us satisfied that the instrument is wrong; therefore let the rule be discharged. Rule discharged.

VOL. XXVIII.-38

RUSSELL v. ATKINSON.-p. 667.

B., a builder, is employed by A. in altering A.'s house. During the progress of the work, A. countermands the employment, whereupon B. requests A. to appoint a valuer, and upon receiving no answer to his application, B. continues the work, completes it, and arrests A. for the whole amount, but recovers only for the work done previously to the countermand. The defendant is entitled (under 43 G. 3, c. 46,) to

costs.

JOHNSON, Assignee of BEARHEAD, a Bankrupt v. PIPER.—p. 672. In case within the 92d section of the Bankrupt Act, (6 G. 4, c. 16,) where the assignees went into evidence of the trading in consequence of a notice to dispute, without adverting to the section, or relying upon the depositions, and having failed to establish the trading, were nonsuited, the court refused to set the nonsuit aside.

DOE d. WHITEHEAD v. PITTMAN.-p. 673.

"I have no rent for you, because A. B. has ordered me to pay none." This is evidence of a disclaimer of tenancy.

EJECTMENT, tried at the last Gloucester assizes before Tindal C. J. Verdict for the plaintiff. A question arose whether Mary Whittle, who had paid rent to the lessor of the plaintiff, and by whom the defendant was let into possession, had disclaimed the tenancy. The evidence of the disclaimer was as follows:-Mary Whittle, upon being applied to for her rent, said to the person by whom the application was made, "I have no rent for you," and referred him to her daughter, who was in the room, for the reason. The daughter said, "The Pittmans have ordered us to pay none."

Ludlow Serjt., in moving for a new trial, submitted to the court whether this was evidence of a disclaimer.

DENMAN C. J.-We think it was clearly evidence of a disclaimer. The daughter must be considered as the index of the mother's mind.

Rule refused.

The KING v. The SHERIFF OF MIDDLESEX, in the matter of WATTS v. HAMILTON.-p. 674.

The court will, upon payment of costs, set aside an attachment issued against the sheriff upon the rule of court of Hilary Term, 3 W. 4, bail having been put in and perfected after the contempt, and before the issuing of the attachment.

Where the plaintiff has not declared, he is not entitled to have the attachment against the sheriff for disobedience of a judge's order to bring the defendant into court, stand as a security.

GRIFFITHS v. POINTON.-p. 675.

A party is not warranted in arresting another for a debt of which he has not, at the time of making the arrest, some evidence besides his own personal knowledge of its existence; and therefore a plaintiff arresting a defendant for a large sum of money, and having at the time of arrest, evidence only as to a small portion of the amount, was held to be liable to costs under 43 G. 3, c. 46, s. 3, although at the time of the trial some evidence of a subsequent acknowledgment by the defendant was given.