2. Evidence before him.

On an application to set aside a nonsuit, the Court referred a question of fact to the Master, upon which it was to depend whether the nonsuit should be entered or not. At the hearing, a person declined to make affidavit, but offered oral testimony, which the Master would not receive. On his report being made, the Court refused to send it back to him for reconsideration, on the ground of this refusal, though the person was now willing to make affidavit, and the applicant swore to merits. Noy v. Reynolds.

3. What he may inquire into.

461

A motion was made against P., an attorney, for suffering E., an unqualified person, to practise in his name, contrary to stat. 22 G. 2, c. 46, s. 11. The affidavits stated facts tending to shew such practising in some inferior courts; and it was further alleged, that E. had delivered writs (not stating that they issued from this Court) to a sheriff's officer to be executed; that the writs bore P.'s name, but that P. had refused to pay for their execution, alleging that the business was E.'s. The Court having referred the matters of the rule to the Master:

Held, that the Master might, on such reference, receive affidavits tending to establish a case of practice contrary to the statute in a cause commenced in this Court, although no such charge has been specifically made in the affidavits on which the rule was granted.

The Master, in his report, made a special statement of facts as proved before him, and forbore to draw any conclusion: Held, that the Court might draw its own inference from the report and the affidavits filed in support of the rule; and, if satisfied, upon the whole, that P. had allowed E. to use his name for his (E.'s) profit, although the Master had not expressly stated either that fact, or the actual receipt of such profit by E., was bound to enforce the statute against P. Palmer.

In re 686

K. C., 418.

Hill, M. D., K. C., 1.

Jacob, E., K. C., 418.
Kelly, F., K. C., 418.
Kindersley, R. T., K. C. 418.
Leach, Sir J., M. R., 11.
Lyndhurst, Lord, L. C., 417.
Miller, J., K. C., 418.

Pepys, Sir C. C., S. G. and M. R., 1.
Platt, T. J., K. C., 418.
Pollock, F., A. G., 418.

Preston, R., K. C., 1.

Rolfe, R. M., S. G., 1. 418.
Scarlett, Sir J., L. C. B., 417.
Baron Abinger, 418.
Shepherd, H. J., K. C., 418.
Skirrow, W., K. C., 418.
Spencer, G., K. C., 418.
Starkie, T., K. C., 418.
Taunton, Sir W. E., 418.
Temple, C., K. C., 418.
Thesiger, F., K. C., 1.
Wakefield, D., K. C., 418.
Wigram, J., K. C. 418.

Whether any excavation in the earth be a mine or not, depends upon the mode in which it is worked and not on the substance obtained from it. But the sessions are to apply that principle, and to find as a fact whether it be a mine or not.

Therefore, where an occupier of a quarry of freestone was rated for it, and for the land adjacent used for depositing the rubbish from the quarry, and the sessions confirmed the rate, subject to a case, in which it was found that he occupied such " quarry," and the method of working it was particularly described, and the question left to this Court was, whether the land and excavation were legally exempt from poor-rate, this Court sent back the case, on the ground that it was for the sessions to find whether it was a mine or not. Rex v. Dunsford. 563 2. Where to be rated. Rate, 1. 3. Reservation of, in lease under power, when within power. Power, 1.

MISDEMEANOR.

How prosecutor of indictment may obtain Judge's warrant. Crown Office.

MISSTATEMENT.

In deed, when parol evidence of it admissible. Evidence, V. 2.

MORTGAGE.

Stamp on. Statute, XVII.

MUNIMENTS.

Of Corporation. Corporation.

NEGLIGENCE.
Bailee.

NEWSPAPER.

1. Evidence of printing and publishing. Sttute, XII. (1.)

2. Who may sue publisher, under stat. 33 G. 3, c. 78, ss. 7 & 10. Statute, XII. (2.)

NEW TRIAL.

Trial.

NOTICE.

1. Date of, in declaration in ejectment. Ejectment, 3.

2. To quit. Ejectment, 8.

3. Of dishonour of cheque, what reasonable. Cheque,

4. Of objection to hearing demurrer, under rule Hil. 4, W. 4, s. 7, when to be given. Costs, 1.

5. To justices, on motion for criminal information. Criminal Information, 1.

OFFENSIVE TRADE.
Trade, 1.
OPINION.

Of counsel, whether an award. Award, 1.

I. Of Judge.

ORDER.

1. For procedendo, when Court will set aside. Attorney, III. 2.

2. To restore possession after judgment in ejectment. Ejectment, 7. II. Of justices. 1. In bastardy.

The reputed father of a bastard, before the birth, persuaded the mother, who was settled in the parish of H., to leave H. and to be delivered in C., an extra-parochial place; and the sessions (on appeal against the aftermentioned order) found that he did so fraudulently, to prevent an order of filiation from being made upon him, and to throw the burthen upon H.; and that, but for such fraud, the child would have been born in H. The child was born in C. The order of filiation on the father (at the time of making which the mother was receiving relief for herself and children from H.) adjudging that the child was born in H., and ordered him to pay a weekly sum to H. for so long as the child should be chargeable to H.: Held, that the order was bad, inasmuch as it stated the birth to have been in H., contrary to the fact.

And per Lord Denman, C. J., Patteson and Williams, Js., the justices had no jurisdiction to make any order for the relief of H. Rez v. Wilson.

230

2. Reasons for, how far to be inquired into by Court. Statute, XXXVII. (1.) IIL Of Sessions.

Informality.

An order of removal, regular on the face of it, was, on appeal, quashed by order of sessions "for informality." No case having been stated, and the two orders being brought up by certiorari, this Court affirmed the order of sessions.

The Court of Quarter Sessions, in the same order, awarded cost to the appellant: Held, that they had power to do so under stat. 8 & 9 W. 3, c. 30, s. 3, though the order appeared to be quashed for informality only. Rex v. Inhabitants of Cottingham.

IV. Of removal. Poor, VII.

250

V. Former orders on predecessor of officer sought to be charged, their effect. Evidence, VIII

OVERSEERS.

1. What they may charge in their accounts. Overseers of the poor may not charge the parishioners, in their accounts, with the following payments:

For making poor rates;

For making divisions of the same;

For making copy of the same for the collectors;

Payments to an accountant for examining, making up, and entering the accounts of the year, and list of defaulters on the rates; Poundage paid for collecting the rates:Although such charges have been authorized by resolution of vestry.

A parishioner appealed against overseers' accounts for the year containing the above items. Three rates (referred to by the items) had been made during the year. The appellant was assessed to the second only, but he was assessed to the rates of the following year, and until the time of the appeal. Some of the above items related to periods not within the time for which the appellant was rated. It did not appear which of the rates was applied to any of the disbursements objected to: Held, that the appeal lay, Rex v. Gwyer.

216

2. Who may appeal against their accounts. Ante, 1.

2. In action for words. Slander.

3. What must be set out in declaration for penalties under a by-law. Custom, 1. 4. Usurious contract.

In an action of debt to recover penalties for usury, the day of the usurious contract must be stated in the declaration, and proved as laid; and the plaintiff must be nonsuited if he fail to give evidence of the day, although he prove that the contract was made within such a time, and upon such terms that it must have been usurious. Fox v. Keeling.

670

5. What averments material. Plaintiff declared that he was possessed of a mill, and by reason thereof was entitled to the use of a certain stream for the mill, and that the water ought to run and flow to the mill; and that defendant "wrongfully and injuriously" diverted the same: Held that, on a plea of not guilty, the only matter in issue was the fact of the diversion, aud that the right to the use of the stream, as claimed, was admitted.

The defendant also pleaded, that the plaintiff was not entitled to the watercourse by reason of the possession of the mill; and also that the water ought not to run and flow to the mill. The jury (being directed by the Judge to find specially) found that the defendant had diverted the stream, and prevented it from supplying water necessary for the proper enjoyment of the plaintiff's premises as they existed before the mill was erected; but found no right in respect of the mill: Held that, on this finding, the variance in the declaration was material; and that the Court could not give judgment for the plaintiff under st. 3 & 4 W. 4, c. 42, s. 24.

The Court directed that judgment should be entered for the defendant on the last two issues, and for the plaintiff on the first, without damages. Frankum v. Earl of Falmouth.

452

Tender cannot be pleaded to a count for unliquidated damages in respect of breach of agreement to keep in repair. Dearle v. Barrett. 82

(See Statute, XXVII. (1).) 3. General issue in debt, evidence under. Plaintiff declared in debt for goods sold, to be paid for on request. Defendant pleaded, that he never was indebted as in the declaration was alleged: Held, that (since the new rules of pleading), he could not, under this plea, give evidence that the goods were sold on a credit not yet expired. Edmunds v. Harris.

414

4. Plea of payment into court, how affected by rule Hil. 4 W. 4. Statute, XIII. (1.)

5. Not guilty in trespass, what it puts in issue. Ante, II. 5.

6. Issue on plea of possession of locus in quo in trespass, how supported. Evidence, XIV. 3. (2.)

7. Whether promissory note given may be pleaded in bar to avowry. Distress, 3. 8. Cause of action cognizable by inferior court, how to be pleaded. Statute, VII. 9. Right of entry under a power. Post, XV.

10. Want of grant under seal, how it may be pleaded.

Declaration alleged that plaintiff agreed to grant and let, and defendant to take, a messuage, with exclusive license to shoot and sport over a manor, and to fish in the waters thereof during the term, to hold the messuage, right, liberties, and premises, for the term, at a rent; that plaintiff let the messuage, right, liberties, and premises to defendant, who entered into and upon the same, and became and was possessed thereof for the term: Breach, non-payment of rent. Plea, that the messuage was small, and taken by the defendant solely for the enjoy ment of the right over the manor, which was extensive; and that the agreement was not sealed by either party. Verification. On special demurrer, for that the plea amounted to the general issue:

Held, that the defendant was entitled to judgment; and that, the demise being partly of an incorporeal hereditament, and not under seal, no rent could be recovered on such demise; and that the declaration could not be treated as a claim of compensation for use actually had of the subject of demise, since it alleged only his entry and possession, and not an occupation. Bird v. Higginson.

(See Ante, III. 1.] IV. Replication.

1. How far it must set out particulars.

696

Where defendant in assumpsit pleads that the contract declared upon was a guarantee for the debt of another, and that no memorandum thereof stating the consideration was or is in writing, signed by defendant or any person authorised by him; plaintiff may reply, that a memorandum of agreement in writing, stating the consideration, was signed by defendant, without setting out such memorandum in the replication. Wakeman v. Sutton. 78

2. How form of conclusion affects proof Post, VIII. 2.

V. When drawer of bill may recover against acceptor on counts on original consideration.

If drawer sues acceptor upon the bill, and fails in consequence of having altered the bill in a material part, he may still recover upon counts on the original consideration. Atkinson v. Hawdon.

628

VI. What is good consideration. Assumpsit, L.

1.

VII. How consideration may be set out on pleadings. Ante, IV.

VIII. Want of consideration.

1. When admitted on pleadings.

Declaration stated, that A. undertook to pay B. a sum due to him from C., if B. would give up a lien which he had upon C.'s

goods; that B. gave up the lien, but A. did not pay. Plea, that the supposed promise was a special promise to answer for the debt of another person; that no agreement relating thereto, nor any memorandum or note thereof, stating the consideration, was in writing and signed by defendant or any person authorized by him, pursuant to the statute; and that the said supposed promise was contained in a memorandum in writing signed by defendant, which was as follows:-"I agree to see you paid within three months the amount of 50%. due to you on account of C." Plaintiff demurred specially, on the grounds that the declaration stated a sufficient consideration for the promise, but the memorandum in the plea stated none; and that the plea, instead of denying the promise in the declaration, stated facts to raise a conclusion as to its not having been made; and that it did not confess and avoid, nor traverse; and that it was not necessary that the promise in the declaration, should be written, &c.

Held, that the written agreement did not satisfy the statute of frauds; that the plaintiff, by his demurrer, admitted that agreement to be the contract between him and the defendant; and that he having so admitted, and the case being one in which, by statute, the whole contract ought to be set out in writing, the plaintiff could not assume that there were other terms, not embodied in the memorandum, which might have been proved at nisi prius. Clancy v. Piggott. 473 2. Upon which party proof lies.

To an action by drawer of a bill of exchange against acceptor, defendant pleaded that there was no consideration for the acceptance, concluding with a verification; and plaintiff replied that there was a consideration, to wit, the sale and delivery of goods, concluding to the country: Held, that the plaintiff was not bound to prove the consideration alleged, and that it lay on the defendant to shew want of consideration. But that, if the replication had concluded with a verification, the consideration alleged would have been part of the issue, and the plaintiff must have proved it. Low v. Bur483 IX. What form of pleading makes matter part of the issue. Ante, VIII. 2.

X. Estoppel, when it may be pleaded. Estoppel, 3.

XI. Debt, when plaintiff may declare in. Evidence, XIII.

495

XII. When stolen property may be recovered in trover. Market Overt. XIII. What fixtures may be recovered in trover. Fixtures, 2.

XIV. What shews breach of covenant.

An indenture recited that F. and G. were entitled to a fourth part of a colliery for a term of years; that G. was also entitled, by agreement with A., to a lease of land essential for working the colliery, and held the agreement in trust for himself and F. jointly; that P. had a power of sale upon a moiety of the colliery, for the same term, to secure an annuity, which power he was about to exercise; that F. and G. agreed to purchase the moiety, which was to be discharged from the annuity, and to grant a fresh annuity to P., payable out of the profits accruing from

the working the coal, by virtue of the term in the three parts of the colliery, and the agreement. By the same indenture, after such recital, the moiety was assigned, and the annuity granted; and F. and G. covenanted to pay it, as above, from the profits accruing, after payment of all rates, taxes, &c., and of the rents reserved on the term, or by the agreement: a right of entry, on the premises charged with the annuity was given to P. on the annuity being in arrear; and F. and G. covenanted to do nothing whereby the annuity might cease, determine, be impeached, or become void and of no effect, or whereby the lease, by which the colliery was originally demised, or the agreement should be forfeited, or the terms thereby created cease.

P. sued in covenant on the indenture, assigning for breaches; (1), that F. and G. took a lease of the land to which G. was entitled under the agreement, in their own names, and not in trust for P., but for other persons, and forfeited and surrendered the agreement, whereby the annuity was impeached, and the plaintiff's right over the land, and in the profits which would have accrued, ceased; (2), that, under the land subject to the agreement, there were veins of coal, the property of A., and that F. and G. took the land at a higher rent, and otherwise on worse terms than G. was entitled to by the agreement, in order to obtain the last-mentioned coal on better terms than they otherwise could have done, whereby, &c., (as before ;) (3), that F. and G. afterwards assigned the land, amongst other things, to H., whereby, &c., (as before :)

Held, on general demurrer to the declaration

That the want of an averment that profits had, or would have, actually accrued from working the colliery, was no objection to the declaration:

But that the declaration shewed no breach of covenant; for that, (1), the variation between the lease and the agreement did not invalidate the security; that, (2), the security was not shewn to be affected, since the profits of the colliery on which the annuity was secured, were those remaining after payment of such rent only as was reserved by the agreement: and that, (3), it did not appear that the colliery and the land were not assigned together to H., so that the land might still be used for working the colliery, and the assignment of the whole would not impeach P.'s annuity, since H. could hold subject only to his annuity and right of entry, and G. and F. remained personally liable to the covenant, whether H. was so or not. Pitt v. Williams. XV. How right of entry under a power should be pleaded.

419

In trespass quare clausum fregit, the defendants pleaded that the plaintiff, being seised in fee, surrendered the premises, which were copyhold, to the use of A., upon the trusts declared by a certain deed, for securing the repayment of principal and interest to W.: and that by the deed, to which the plaintiff was party, it was covenanted that A. should stand seised in trust to resurrender to the use of the plaintiff on payment of the principal and interest; but in

case of default, upon trust that A. should at any time thereafter, when W. should think proper, sell the premises and surrender them to the use of the purchaser: and the plea averred that it was further covenanted that the premises should at all times remain and be to the use of A., but nevertheless upon and for the trusts, intents, and purposes before declared, and should and might accordingly be peaceably and quietly enjoyed, and the rents and profits received and retained accordingly without let, &c.

The plea then alleged that the plaintiff had not paid the principal money, wherefore the defendants, as the servants and by the command of A., under and by virtue of the said indenture, broke and entered, &c., in order that A. might take, hold, and enjoy possession of the premises. On special de

murrer,

Held, that the power given by the deed, and the covenant for quiet enjoyment, were subject to the condition that W., the cestuy que trust, should think proper to have the premises sold. And (assuming that the deed could operate as a license to A. to enter although he had not been admitted a tenant).

That the plea was bad in not stating that W. had thought proper to enforce the power of sale, or that the defendants entered for the purposes of the deed; although the demurrer did not raise these objections.

Held also, by Lord Denman, C. J., that the power to sell, and covenant for quiet enjoyment, did not imply a power of entry. Contra, semble, per Littledale, J. Watson v. Waltham. 485

XVI. Pleading, criminal.

Pleading pardon after judgment.

Prisoners were under sentence for murder. On their being brought before the Court under the writ of habeas corpus, and being asked what they had to say why execution should not be awarded against them, one of them pleaded, ore tenus, that the king, by proclamation in the Gazette, had promised pardon to any person, except the actual murderer, who should give information, whereby such murderer should be apprehended and convicted; and that he, not being the actual murderer, had given such information, and thereby entitled himself to the pardon: Held, on demurrer ore tenus by the Attorney-General no sufficient plea. Rex v. Garside.

(See Execution, III. 3.)
POOR.

I. Rate.

266

1. Power of justices to reduce assessment under local act. Statute, XXXVII. (1.) 2. When Court of King's Bench will inquire into reasons of justices for reducing assessment. Statute, XXXVII. (1.)

3. Abandonment of rate.

Parish officers cannot abandon a poor's rate duly made, allowed, and published. Therefore, where an appeal had been entered against a poor rate, and the parish officers served the appellant and the clerk of the peace with notice that the rate was abandoned, and before the sessions tendered to the appellant the amount of his assessment, which he had paid, and the sessions thereupon refused to hear the appeal, this Court

granted a mandamus to enter continuances and hear the appeal.

But this Court refused to give costs against the parish officers, of the application for a mandamus, and of the writ. Rex v. Justices of Cambridge. 370

4. Beneficial occupancy. Mandamus, L 2 (4.)

5. Rate under local act, 11 G. 4, & 1 W. 4,

C. X.

A local act for the government of the poor of certain united parishes directed that the lessors, landlords, owners of all lands, houses, &c., the yearly assessment or valuation whereof should be less than 30%., should be rated under that act; and the vestry were empowered to make poor rates. The vestry assessed at sums below 30. some houses which were let at a rent above 301., the tenants paying parochial and other taxes. Quare, whether these houses were within the provision?

It was also enacted, that the person asthorized to collect the rents should be taken to be the lessor, &c., for the purposes of the act, and be liable to be rated, and compellable to pay the rates, in all cases where the lessors were made liable to be rated, unless the real lessor, &c., should declare himself and pay the rates, or be distinctly or certainly known to be the lessor, &c., by the vestrymen. The houses before mentioned formed part of an estate known by the name of the S. estate, for all of which a person named S. was rated as owner (which it appeared he really was) in the parish land-tar books: and other houses on this estate contiguous to some of those in question, were let by S. to one of the vestrymen. S. resided at a distance from the parishes. The vestry rated the collector for the houses first mentioned, and for others on the same estate. Quare (supposing the first mentioned houses properly assessed at a sum below 304), whether the collector was so rateable?

On non-payment of the rates, the act anthorized and required a justice to summen the party and to issue a distress warrant against him, unless he satisfactorily proved that he was not liable. The form of distress warrant given by the act was, on the "landlord or owner." The rate upon houses assessed at less than 30%. was also made recoverable from the lessors, &c., by action of plaint. Parties aggrieved by any rate made, or thing done under the act, might appeal, within a limited time, to the vestry, and, failing to obtain satisfaction, might, within a certain time, appeal against such rate or other thing to the sessions. The collecter rated as above, not having paid the rate, of appealed within proper time, justices were applied to for a distress warrant against him, but would not grant it. This Court, considering the legality of such a warrant not clear under the circumstances, refused a mandamus to compel the justices to issue it Rex v. Dyer.

II. Settlement by renting a tenement.

606

1. Pauper went into the service of B., for whom he was to make and burn pots, and, to do so, he was to have the use of yards, and of a kiln and sheds, which belonged to, and were to be repaired by B., who also was to find and cart the clay for the pots, and