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 45l. 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.

REX v. SPRAGGS, in the matter of SPRAGGS v. WILKS.-p. 678. Upon a motion for an attachment for nonpayment of costs, pursuant to the master's allocatur, to whom accounts had been referred upon the undertaking of the party, the court refused to grant a rule absolute in the first instance, and this is the practice of all the courts.

PRICE moved for an attachment against the plaintiff for not paying to an attorney of the court a sum of money, the balance of his bill delivered, pursuant to the master's allocatur. He prayed for a rule absolute in the first instance, on the express words of the rule of court, T. T. 17 G. 3, (1777,) K. B.,(a) and stated that the original bill delivered had been reduced by sums paid and items taxed off by the master upon a reference to him to tax on the plaintiff's undertaking.

DENMAN C. J.-In the case yesterday, in which a question arose whether this court will grant a rule absolute in the first instance for an attachment for nonpayment of costs, upon an allocatur, where there is a matter of account to settle before the master: we find that the practice of the other courts agrees with the practice of this court, of granting only a rule to show cause why an attachment should not issue. Therefore let there be a rule to show cause. Rule to show cause. (a) It is ordered that the attachment for nonpayment of costs on the master's allocatur, shall be absolute in the first instance.

DAVIES v. WATSON and BROUGHTON.-p. 709.

A. draws a bill on B. in the country, making it payable at the house of C. in London, without authority from C., and B. accepts the bill in this form, without giving notice to C. or providing for the payment of the bill at C.'s house. A. negotiates the bill, which upon becoming due is presented by the holder to C, who paid it under the supposition that the bill so presented was another bill of a different amount and date, drawn by B. on, and accepted by himself, and did not discover his mistake until a fortnight afterwards, when the other bill was presented. B. becomes bankrupt: Held, that C. could not recover against A. in an action for money had and received. But semble, that if A. himself had received payment as holder of the bill: for his misconduct in making the bill payable at C.'s house he would have been liable.

ASSUMPSIT for money had and received to the plaintiff's use. At the trial before Denman C. J. at the London sittings after Michaelmas term, 1832, the following facts appeared. One Moses, who resided out of London, being indebted to the defendants in 427. 6s. for professional business, they drew a bill upon him for the amount, and in order that it might be negotiable in London, they drew it payable at the house of the plaintiff, who was a friend and correspondent of Moses. Moses accepted it in this form, but made no provision for its being paid at the plaintiff's house; neither had the plaintiff any notice of the fact. The bill being negotiated by the defendants, it came into the possession of the Bank of England, and on the 17th October, 1830, the day when it became due, a clerk from the bank called at the house of the plaintiff, and presented the bill, which was not then paid. The clerk left a ticket, as is usual, containing the particulars of the bill; and the plaintiff supposing it to be a bill drawn by Moses, which he himself had accepted, but which was for a different amount, and was not due until a fortnight afterwards, without looking into the matter, gave directions to his clerk to take up the bill. This was accordingly done, and the bill was laid aside. On the 2d November, when the bill accepted by the plaintiff became due, it was presented, and the amount, 341. 128., was paid by him. Then, and not till then, the plaintiff discovered that he had paid the former bill under a mistake, and applied to the defendants

to refund the money so paid. They refused to do so, (except upon a condition which failed.) Moses afterwards becoming a bankrupt, the present action was brought against the defendants. It appeared in evidence that the defendants had received from Moses 107. on account of the bill. For the defendants it was contended upon the authority of Cocks v. Masterman, 4 Mann. & Ryl. 676; 9 Bar. & Cres. 902, that the money having been paid by mistake, with a full knowledge or the means of full knowledge of the facts, could not be recovered, unless timely notice had been given of the mistake, so that the defendants could not have been damnified by reason of it. It was urged on the part of the plaintiff, that this did not come within the ordinary rule, as in this case, the mistake would not have been made but for the defendant's impropriety of conduct in drawing the bill payable at the plaintiff's house, without his permission and without notice. The jury thought the defendants had so drawn the bill, without authority from the plaintiff, and therefore, under the direction of the learned chief justice, found their verdict for the whole amount of 421. 6s. In the following term, Busby obtained a rule nisi to reduce the verdict to the sum of 107., which had been, as above stated, paid upon

account.

F. Pollock and Cresswell now showed cause, and contended, as at the trial, that the plaintiff was entitled to the whole amount upon the facts found by the jury. They admitted that if there had been only negligence on the part of the person seeking to recover the money paid under mistake, he would be precluded from recovering, upon the authority of Cocks v. Masterman, 4 Man. & Ryl. 676; 9 Barn. & Cres. 902; but that the misconduct on the part of the defendants, by which the plaintiff was misled, took the case out of the general rule; and for this, the language of Abbott C. J., in delivering judgment in Wilkins v. Johnson, 5 Dowl. & Ryl. 403; 3 Barn. & Cress. 428, and the case of Jones v. Ryde, 5 Taunt. 488, were relied on.

Busby contrà, contended that the finding of the jury was a finding of law, or at all events of an immaterial fact; that the negligence on the part of the plaintiff was gross, and that by it the defendants had been deprived of the opportunity of using due diligence in getting the bill paid by Moses; that the rule was established by Bilbie v. Lumnie, 2 East, 469, and Brisbane v. Dacres, executrix, 5 Taunt. 143, that money paid under mistake, with full knowledge or the means of full knowledge of the facts, cannot be recovered. [PATTESON, J. If the plaintiff had seen the bill, and had afterwards paid it, it could not have been contended that he was entitled to recover, because that would have been a deliberate loan to Moses.] The banker's ticket, it is submitted, had the same effect.

DENMAN C. J.-If the defendants had sent their own clerk, and he had received the money from the plaintiff, the case might have admitted of doubt; but as they did no more than they were authorized in doing by paying it to the bankers, and the bankers only did their duty in presenting the bill and receiving the money, I cannot think that there is any ill conduct on the part of the defendants. I think the circumstance of the bills having been negotiated makes a difference in this case, and that the plaintiff cannot recover beyond the 107.

LITTLEDALE J.-If the defendants had sent their clerk, it might have made some difference; but as all was done in the regular course of business, I think there is no ground for saying that the plaintiff can recover.

PARKE J.-If the defendants had themselves sent to the plaintiff, and had received the money, I own I should have had great doubt upon the point. If Moses had given a draft upon the plaintiff, and the plaintiff had paid it, this would have been a loan to Moses, and the plaintiff would not have recovered against the defendan's. Substantially this case is the same, and it comes within the principle of Smith v. Mercer, 6 Taunt. 76. It appears to me that the defendants never have received the money from the plaintiff. They were