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T Ejjlered, according to Act of Congress, on the 29th day of March, in the year 1832, By P. H. NicKUN, and T. Johnson, In tlie Office of the Clerk of the District Court for the Eastern District of Pennsyl- PHILADRLPHU : Printed by Thomas Kite &, Co< ADVERTISEMENT TO THE AMERICAN EDITION. In offering to the profession an American edition of RoscoE ON Evidence, the Editor thought it would greatly add to its convenience, to adapt its references to the English Common Law Reports, edited by Messrs. Sergeant and Lowber, and the English Ecclesiastical Reports, edited by Mr. Ingraham. This, he has en- deavoured to do with accuracy, the only merit which such a work can claim. A few notes have been added, referring to American decisions in some cases where the law has been considered doubtful, or the judgments of our courts have been different from those of Eng- land. Philadelphia, April, 1832. ADVERTISEMENT TO THE SECOND LONDON EDITION. In the present edition, the cases on the subject of evidence, decided since the first publication of this work, have been added, and the whole of the text has been re- vised and corrected. Some new titles have also been inserted, as "Assumpsit on Promise of Marriage;" " Assumpsit for Interest of Money ;" " Case for Exces- sive Distress ;" and " Trespass for False Imprison- ment ;" and considerable additions have been made to the former titles. The Index has also been re-con- structed and much enlarged. Temple, June, 1831. B CONTENTS. Naturu op Evidence : Primary Evidence Secondary Evidence Presumptive Evidence Hearsay Admissions 1 2 13 19 25 Object of Evidence : Evidence confined to the Issue The Substance of the Issue only need be Affirmative of the Issue to be proved Instruments of Evidence Effect of Evidence Stamps . . • • Course of Evidence Evidence in Particular Actions : Assumpsit on Sale of Real Property Assumpsit for Use and Occupation Assumpsit on Bills of Exchange . Assumpsit on Promissory Notes . Assumpsit on Policies of Insurance Assumpsit on Warranty of a Horse Assumpsit on Promise of Marriage Assumpsit on an Award . Assumpsit on an Attorney's Bill Assumpsit on Apothecary's or Surgeon's Assumpsit for Servant's Wages . Assumpsit for not accepting Goods Assumpsit for not delivering Goods Assumpsit for goods sold and delivered Assumpsit for Work and Labour Assumpsit for Money paid Assumpsit for Money lent Assumpsit for Money had and received proved BUI 35 41 51 53 99 116 131 136 142 147 174 177 190 193 195 196 201 203 204 208 209 221 225 227 228 ^111 Conlc/iis. Assumpsit tor Interest Assumpsit on Account stated Defence in Assumpsit Case for Nuisance Case for Disturbance of Common Case for Disturbance of Way Case for Negligence Case against Carriers Case for Defamation Case for Malicious Prosecution Case for Malicious Arrest Case for Excessive Distress Covenant Debt on Bond Debt on Bail Bond Debt for Rent Debt for Double Value Debt for Double Rent Debt for Penalties Ejectment Replevin Trespass for Crim. Con. Trespass for Seduction Trespass for Assault and Battery Trespass for False Imprisonment Trespass to Personal Property Trespass Quare Clausum Fregit Trespass for Mesne Profits Trover . 233 235 237 365 269 270 272 277 285 300 304 307 311 316 817 317 319 321 321 323 354 358 365 368 372 375 378 392 395 EviDEXCE IN Actions by and By Asignees of Bankrupts Against Bankrupts Against Constables and Revenue Officers By Executors and Administrators Against Executors and Administrators Against Heirs Against Justices . Against Sheriffs . Against Hundrcdors AGAINST Particular Persons 41 S 453 456 461 466 471 474 482 498 LIST OF CASES CITED. ABBEY V. Lill, 61. Abbott V. Massie, 13. V. Plumbe, 41 G. Abbots V. Barry, 209, 231. Abel V. Potts, 112, 184. Abithol V. Bristovv, 182. Abraham v. George, 418. Abrahams v. Bunn, 84 Accero v. Petroni, 94. Ackland v. Pcarce, 162. A'Court V. Cross, 254, 259, 261. Adams v. Bateson, 43. V. Broughton, 398. V. Dansey, 248. V. Gebney, 315. V. Gregg, 171, 172. V. Kelley, 287. V. Kerr, 66, 67. V. Malkin, 422, 451, 452. V. Moore, 374. V. Richards, 190. V. Sanders, 186. V. Savage, 34, 462. V. Terretenants of Savage, 40. Adamthwayte v. Synge, 55. Adderley v. Hart, 46. Addison v. Guadasequi, 216. Aflalov. Foudrinier, 6, 88. Aitkenhead v. Blades, 384, 392. Aked V. Stocks, 477. Alban v. Prichett, 31. Alcock V. Andrews, 458. Alderson v. Clay, 13, 19. V. Pope, 212. Aldred's case, 266. Aldridge v. Ireland, 452. Aldritt V. Kettridge, 436. Alexander v. Gibson, 97, 191. V. Macauley, 49) . V. Southcy, 405. Alfred v. Fitzjames, 204. Alkin V. Acton, 203. Allen V. Ayre, 504. V. Duad.iR, 103, 464, 465. V. Hebcr, 472. V. Keeves, 123. V. Mawson, 151. V. Morrison, 118. Allesbrooke v. Roach, 70. Allison's case, 62. Allison V. Hay don, 202. Alliwrt V. Meek, 70. Alner v. George, 26. Alpass V. Watkins, 138. Alves V. Bunbury, 54. V. Hodgson, 128. Ambrose v. Clendon, 417, 425. V. Hopvs^ood, 159. Amery v. Rogers, 178. Ames V. Hill, 127. Amey v. Long, 64. Ancaster v. Milling, 390. Anderson v. Hodgson, 211. V. Hamilton, 98. v. May, 200, 211. V. Pilcher, 11. V. Saunderson, 31. V. Scott, 218. Andree v. Fletcher, 232. Andrews v. Dixon, 489. V. Pledger, 244. Angus V. Smith, 96. Annen v. Wooden, 181. Anonymous, 92, 102, 133, 147, 149, 163, 191, 197, 260, 262, 296, 319, 353, 354, 361, 380, 383, 391, 418, 454. Ansley v. Birch, 77. V. Smith, 2. Anstey v. Manners, 215, 241. Antram v. Chace, 76. Apoth. Comp. V. Bentley, 52, 322. V. Fcrnchough, 119. V. Warburton, 201. Appleton V. Lord Braybrooke, 54. Arbouin v. Williams, 439. Archangclo v. Thompson, 114, 181, 184. Arden v. Watkins, 1.55. Arding v. Flower, 77. Argent v. Durrant, 385. Argylc V. Hunt, 40. Arlett v. Ellis, 389. Armitt v. Garnett, 489. Arnold v. Bp. of Bath -.md Wells, 11.5. V. Rcvoult, 4f). Arnott V. Redfern, lOT, 234. Arnsby v. Woodbradard, 341 . List of Cases cited. Armory v. Delninirie, 401. Armstronjj v. Hewitt, 23, 63, 72. Arrowsiiiith v. Le Mosuricr, 459. Arumioll v. White, 304, 306. Ashbrittle v. Wyley, 324. Ashtbrd V. Price, 200. Asiiley V. Hiirrison, 294, 295. Ashinead v. Rangor, 380. Astlin V. Packer, 31)2. AspinaJl v. Kcmpson, 327. Aster V. Emery, 204, 217. AsUcy V. Reynolds, 231, 262. Astley V. Young-, 295. Atcheson v. Everett, 78. Atkins V. Hatton, 63. V. Seward, 432 v.TredgoId, 258,516. Atkinson v. Bell, 207, 223, 397. V. Elliott, 449. V. Matteson, 371, 391. V. Teasdale, 270. Atterbury v. Fairmanner, 192. Attersolc v. Briant, 403. Attorney Gen. v. Bulpit, 94. V. Davison, 109. V. FuUerton, 352. V. Parker, 11. V. Parntlier, 345. V. Theakstone, 111. Attree v. Anscombe, 127. Attwood V. Griffin, 148. V. Patridge, 455. V. Rattenbury, 156. Auber v. Lewis, 252. Aubert v. Maize, 227, 232. V. Walsh, 232. Auncelme v. Auncclme, 347. Austen's case, 270. Austen v. Fenton, 317. Austin V. Debnam, 305, 306. Aveson v. Kinnaird, 22. Ayrey v. Davenport, 55. Ayton V. Bolt, 261. B. Back V. Gooch, 428. V. Stacey, 267. Backhouse v. Tarleton, 421. Bacon v. Chesney, 30. Badeley v. Mortlocke, 195. Badkin v. Powell, 378. Badnall v. Samuel, 171. Bagot, Lord v. Williams, 101. Eagsliaw v. Spencer, 326. Bailiffs of Tewksbury v. BrickncU, 46. Bailey v. Bailey, 358. V. Goldsmith, 211. Baillie v. Hole, 83, !i3. V. Lord Inchiquin, 258. Bainridge v. Pickering-, 246. Baker v. Berkeley, 363. V. Chariton, 152. V. Dewey, 26. V. Garratt, 496. Baker v. Holtpzaffell, 144. V. Jardine, 1 18. V. Morley, 365. V. Towey, 185. V. Tyrwliitt, 82, 93. Baldey v. Parker, 205, 208,217, 218. Baldney v. Ritchie, 5, 238. Baldwin v. Elphbastone, 286. V. Cole, 404. v. Richardson, 165. Ball V. Dunstanville, 67. Ballantine v. Golding, 455. Ballard v. Dyson, 271. Balls V. Westwood, 146. Balutti V. Serani, 36. Bainfield v. Massey, 37, 367. Baniford, ex parte, 425, 427. V. Baron, 428. Banbury Peerage case, 20, 105, 1 06, 345. Ban,croft v. Hall, 162. Bank of Scotland v. Watson, 191. Banks v. Kain, 85. Barber v. Barber, 261. V. Gingell, 153, 172. Barclay v. Barley, 158. V. Gooch, 225. Baring v. Clagett, 104. Barker v. Backhouse, 168. v. Braham, 383. V. Green, 490. V. Keat, 380. v. Richardson, 17. Barlow v. M'Intosh, 182. V. Vowel, 81. Barnard v. Palmer, 433. V. Vaughan, 424. Barnardeston v. Chapman, 406. Barnes v. Headley, 169. V. HoUoway, 285. V. Hunt, 391. V. Lucas, 71, 495. V. Winklar, 108. Barnwell v. Harris, 139. Barough v. White, 168. Barrett v. Deere, 248, 262. V. Moss, 199. Barrow, ex parte, 441. V. Bell, 186. Barry v. Bebbington, 24. V. Nugent, 331. V. Rush, 468. Bartall v. Burn, 218, 219; Bartelot v. Hawker, 363. Bartlett v. Emery, 236. V. Tuchin, 138. Barton v. Williams, 406. Barzellay v. Lewis, 104. Baskerville v. Browne, 252. Bass V. Clive,45, 153. Bassell v. Collis, 192. Basten v. Britter, 220. v. Carew, 109,480. Bate v. Cartwright, 232. List of Cases cited. XI Bate V. Hill, 38, 367. V. Russell, 88. Bateman v. Bailey, 22, 425. V. Joseph, 165. Baten's case, 266. Bates V. Pilling, 384. Bateson v. Hartsink, 64. Batley v. Faulliener, 254. Batson v. Donovan, 281. Batthews v. Gallindo, 90. Bauerman v. Radineus, 28, 30, 86. Baxter v. Brown, 331. V. Lewis, 138. Bayard v. Morphew, 363. Bayley v. Afford, 319. V. Ballard, 432, 433. V. Schofield, 425. V. Trickner, 44, 45. V. Wyllie, 58. Baylis v. Attorney General, 12. Beale v. Nind, 260. Bealey v. Shaw, 16. Bean v. Stupart, 182. Beardmore v. Rattenbury, 322. Beaumont v. Fell, 12. Beck V. Dyson, 275. V. Robley, 125, 170. Beckford v. Montague, 490, 496. Beckwith v. Corral, 400, 404. V. PhUby, 374. V. Shordike, 384. V. Spicer, 460. V. Sydebotham, 181. V. Wood, 503, 505. Bodell V. RusseU, 132. Bedford v. Deakin, 170. V. M'Kowl, 366, 367. , V. Pickeiring, 441. Beech's case, 286. Beechey v. Sides, 475. Beeching v. Gower, 80, 175. Beer v. Ward, 70. Beeston v. Collyer, 203. Begbie v. Levi, 244. Bell V. An.sley, 28, 179. V. Bell, 188. V. Bolton, 470. V. Carstairs, 189. V. Harwood, 350. V. Oakley, 457. Belldon v. Tankard, 226. Benjamin v. Porteous, 85, 213. Bennett v. AUcott, 365 V. Francis, 32, 145, 209, 210. V. Henderson, 209. V. Isaac, 48. V. Jolmson, 409. Bensley v. Bignold, 242. Benson v. Olive, 58. V. Marshall, 168. Bent V. Baker, 81, 84, 93, 189. V. Puller, 443. Bentley v. Griffin, 214. V. Northouse, 154, 157. Benton v. Garcia, 198- V. Sutton, 493. V. Thonihill, 485, 486. Bentzing v. Scott, 42. Benyon v. Garratt, 497. Berkeley v. Dimery, 89. V. Hardy, 68. Peerage case, 20, 344. Bernadi v. Motteaux, 104. Bernasconi v. Duke of'Argyle, 156. V. Anderson, 228, 236. Berney v. Davison, 430. V. Vyner, 430. BeroUes v. Ramsay, 246. Berry v. Adamson, 460. v. Goodman, 380,- 381. V. Heai-d, 402. v. Taunton, 314. V. Young, 140. Berryman v. Wise, 27, 28. Bertie v. Beaumont, 72. Berthon v. Loughman, 98, 188. Besford v. Saunders, 261. Best V. Osborne, 192. Betham v. Benson, 30. Betterbee v. Davis, 262. Be van v. Jones, 49. V. Waters, 409. Beveridge v. Burgis, 165. V. Minter, 90. BexwcU V. Christie, 242. Bibb V. Thomas, 346. Bickerdike v. Bollman, 163. BickneU v. Keppell, 259. Biddle V. Levy, 210. Biddlcsford v. Onslow, 265. Biddulph V. Ather, 101. Biden v. Loveday, 17. Bieten v. Burridge, 307. Biggs v. Lawrence, 30. Bilbie v. Lumley, 230. Bingham v. Garnault, 372, 374. Birch V. Depeyster, 10, 252. v. Gibbs, 50. V. Tebbutt, 248. V. Wright, 145, 146, 147, 318, 325. 331, 338. Bird V. Astcock, 404. V. Gunston, 475. V. Holbrook, 276. V. Randall, 386. V. Thompson, 189. Bire v. Moreau, 128, 455. Birk V. Guy, 260. Bisliop V. Crawshay, 396. Bi.sliop of Durham v. Beaumont, 74. Bishop V. Hornblower, 446. V. Howard, 145, 330, of Meath v. Lord Bclfield, 13. V. Pentland, 183, 185, 186. V. Rowe, 160. V. Shillito, 396. Bissc V. Randall, 452. Birt V. Barlow, 62, 114, 241, 358. Xll List oj Cases cited. Hirt V. KiTtilww, 173. Bize V. Dickasoii, ~'3U. Black V. Lord Braybrooke, 54. V. IVl, 171. V. Smith, 20:2, 2G3. V. Thorpe, 415. Plackan v. Dorcii, 1G4. Blackburn v. Scholcs, 31. Blackliniii's aisc, 101, 103. Biackelt v. Lowes, 21. V. \Veir, 81). Blagdcn v. Brudbcar, 13(i. Blake v. Lawrence, 3J). V. Nicholson, 408. Bland v. Ansley, 487. Blaney v. Henricks, 234. Blatcli V. Archer, 483, 492. Bleadon v. Hancock, 408. Blenkinsop v. Clayton, 218, 219, Blojrg V. Pinkers, 202. Blow V. Russell, 262. Bloxani v. Elsie, 2, 26. V. Howard, 47. V. Hubbard, 412. V. Saunders, 396, 402, V. Williams, 243, 396. BlundcU V. Howard, 37. Blunden v. Baugh, 353. Blyth V. Bampton, 191. Boardman v. SiU, 405, 411. Boasc V. Jackson, 118. Bodenham v. Purchas, 248, 249, Boehni v. Compbell, 125, 150. V. Garcias, 159. Bochllinck v. Schneider, 60. Bogget V. Frier, 241. Bolland v. Bygrave, 408. V. Nash, 447. Bolton V. Gladstone, 103, 104. V. Goodridgc, 311. V. Reichard, 250. Bonafous v. Walker, 41, 493. Bond V. Nutt, 180. V. Rust, 374. V. SeawcU, 74. Bondrett v. Hentigg, 1H3. Boorman v. Nash, 207. Boot V. Wilson, 144. Bootli V. Bhindell, 73. V. Charhon, 366. V. C/'oward, 27. V. Grove, 150. Boothbcy V. Sow den, 240. Boolhman v. Earl ofSurrcy, 493. Bordciiavc v. Bartlett, 45. V. (Gregory, 206. Borrodaile v. Lowe, 166. Bosanquet v. Anderson, 154, 156, 175. V. Wray, 248. Botham v. Swinglcr, 81. Bothwick V. Carruthers, 247. Ik)Uings V. Firby, 31, 108. Bougliton V. Fricrc, 148. Bowlc;; V. La3ig\vort];y, 26, 64. Bowman v. Mauzlcman, I. Bowry v. Bennett, 244. Bowther v. Galley, 484. ^ Boyce v. Warburton, 207. Boyd V. Dubois, 184. Boydt^ll V. Drnmmond, 254, 280. Boyle V. Tamlyn, 267. Box V. Jones, 476. Boxer V. Rabitli, 66. Boulton V. Crawther, 268. V. Prentice, 215. Boulston's case, 384. Bovill V. Hammond, 233. V. Wood, 237. Bowcn V. Aslily, 118. V. Parry, 370. Bowden v. Waitliman, 483. Bracegirdle v. Orford, 372, 385. Braddick v. Tiiompson, 196. Bradley v. Arthur, 41, 112. V. Gregory, 239, 240. V. Waterhouse, 281. Brady v. Cubitt, 346. V. Jones, 262, 346. Bragg V. Cole, 210. Brainwell v. Lucas, 92. Braitliwaite v. Skofield, 222. Brandon v. Old, 243. Brandling v. Barrington, 488. Bransconibe v. Bridges, 308, 376. Brandt v. Peacock, 305. Brard v. Ackerman, 172. Bratt V. Ellis, 140. Bray v. Hawden, 161. Brazier's case, 78. V. Bryant, 196. V. Jones, 76. Bredon v. Harman, 323., Breton v. Cope, 112. Brett V. Eeales, 23, 53, 113. V. Brett, 75. V. Levett, 164, 418, 419. Brewer v. Eaton, 341 . V. Palmer, 8, 143. V. Sparrow, 436. Brewster v, ScwcU, 3, 4. Briant v. Eicke, 42. Bridge v. Scddall, 391. Bridges v. Smith, 147. Bridgctt V. Coyncy, 460, 481 . Bridgman v. Jennings, 23. Briggs V. Crick, 193. V. Evelyn, 473. V. Wilkinson, 224. Brind v. Bacon, 172. Brisbane v. Dacrcs, 230. Briscoe v. Stevens, 107, 108. Bristow V. Eastman, 26, 245. V. Hey wood, 30.5, 306. V. Wright, 36, 47, 488. Brittain v. Kinnaird, 109, 481. JJroad V. Pitt, 9:2. lirocaB V. Mayor, (Sec. of London, €5 Brock V, Coi'cliiud, 276, 277. List of Cases cited. Xlll Brockk-bank v. Sugrue, 128. Brodie's case, 295. Broennenburgh v. Haycock, 192. Bromage v. Proser, 233, 297. Bromfield v. Jones, 49, 4'Jl. Bromley v. Coxwell, 403. V. Frazier, 166. V. Kingj 420. V. Wallace, 365. Brook V. Bridges, 394. V. Carpenter, l(i2, 305. V. Enderby, 248. Brooke v. Montagxie, 295. V. Pickwortli, 280. Brooks V. Mason, 198. V. Warwick, 302, 303. Brough V. Perkins, 40. Broughton v. Langley, 326. V. Manchester Water Works, 169. Brounker v. Atkins. 114. Brown v. Duncan, 242. V. Croome, 297. V. Forrestall, 413. V. Fox, 88. V. Fry, 190. V. Heathcote, 440. V. Hedges, 386. V. Hodgson, 38, 227, 278. V. Howard, 254. V. Joddrell, 247. V. M'Kinlay, 230, 231. V. Mafiey, 164, 166. V. Murray, 132. V. Pidgeon, 306. V. Powell, 357. V. Robinson, 202. V. Saul, 263. V. Sayer, 355. V. Watts, 40. V. Windsor, 266. Bruce v. Hunter, 235. V. Rawlins, 70. V. Smith, 74. Brucker v. Fromont, 48. Bruges v. Searle, 46. Bryan v. Booth, 58. V. Horseman, 260. V. Lewis, 208. V. WagstafF, 6. V. Winwood, 352. Bryson v. Wylie, 440. Buchanan v. Rucker, 107. Buckland v. Newsame, 417. Buckle V. Bowes, 498. Buckley v. Smith, 66. Buckman v. Levy, 279. Bulkelv V. Butler, 153, 155. BuU V. Sibbs, 143, 211. Bullen V. Mitchell, 8, 108. Buller V. Fisher, 183. V. Harrison, 228. V. Mitchell, 72. V. Roe, 254. c Bullman v. Berkett, 200. Bulwer v. Bulwer, 380. Bimting's case, 102. Buiiter V. Warre, 358. Burden v. Hallen, 221. Burden v. Browing, 102. Burgess, ex parte, 419, 421. V. Clements, 277. v. Merrill, 237. Burleigh v. Stibbs, 2, 4. V. Bethuiie, 302, 479. Burn, ex parte, 243, 438. V. Phelps, 146. V. Miller, 221. Burnard v. Nerot, 55. Burnett v. Lynch, 71. Bumyeat v. Hutchinson, 243. Burr V. Harper, 68, 69. Burra v. Clarke, 437. Burridge v. Manners, 161. Burrough v. Martin, 99. V. Skinner, 141. Burrows v. Jemino, 106. V. Wright, 503. Burt V. Pahner, 29, 257. V. Walker, 65. Burtenshaw v. Gilbert, 346. Burton v. Chatterton, 197. V. Eyre, 494. V. Hmde, 81, 87. V. Hughes, 401. V. Payne, 5. Bury V. Adamson, 305. Busk V. Roy, 181, 184. V. Walsh, 232. Bush V. Slernman, 276. V. RoUing, 86. Bushel V. Barret, 79. Bushley v. Dixon, 343. Bushwood V. Pond, 46. Buss V. Gilbert, 455. Butcher v. Butcher, 379. V. Easto, 416. Butler V. Alnut, 19. V. Basing, 279. V. Carver, 80, 437. V.Cooke, 450, 451. V. Rhodes, 240. V. Sumerton, 315. V. Woolcot, 408. Butt V. Newman, 456. Butterfield v. Forrester, 277. V. Windle, 323. Butts V. Swann, 125. Buxton V. Bedall, 120. Byne v. Moore, 300, 302. Bynner v. Russell, 150. C. Caddy v. Barlow, 300, 302. Cadogan v. Cadogan, 362. Calder v, Rutherford, 52. Cald v. Dunning, 26, 64. XIV List of Cnses cited. Callow V. LaAvreiicc, 1:25, 170. Calthorpe v. Gougfh, 75. Gallon V. Brag^, :2L>7, 235. Calvert v. Abp. ofCanterbury, 25. V. Ilorsfall, 3J3. Cambridge v. Andcrton, 188. Camden v. Cowley, !)8, 178. Cameron v. Smith, 234, 419. Camfield v. Gilbert, 139, 140, 141. Cajnpbell v. Twemlow, 90, 115; V. Sewell,2(^l. V. Wilson, 16. Campion v. Bentley, 470, 471. Cajnplin v. Di^gins, 441). Cannan v. Brycc, 227, 232. Cap V. Topham, 227. Cardwell v. Martin, 126. Careless v. Careless, 12. Carey v. Askew, 347. V. Gerrish, 227. Carlisle v. Eady, 81, 451. Carpenter v. Jones, 88. Carr v. Clarke, 365, 366. V. Edwards, 235. V. HinclifFe, 253. V. Hood, 298. V. King, 215. Carrol v. Blacon, 241. Carruthers v. Gray, 181. V. Payne, 397, 440. V. Sheddon, 12, 179. V. Sydebotham, 185- Carstairs v. Bates, 443. V. Rolleston, 171. Carter v. Abbott, 450. V. Boehm, 188. V. Carter, 357. V. Dean, 420. V. Pearce, 85. V. Touissant, 217. V. Warne, 313. V. Whalley, 214. Carvick v. Blagravc, 311. V. Vickery, 155. Cartwright v. Rowle)', 230. V. Wright, 286. Gary v. Kinsr, 187. V. Pitt,'^69, 70. Casburn v. Reid, 58, 304, 491. Casson v. Dade, 74. Castle V. Burdctt, 477. Castlemair v. Ray, 123. Caswell V. Coare, 192. Cateris v. Cowpcr, 378. Cates V. Hardacre, 97. V. Winter, 6. catling V. Shouldring, 261. Cattv. Howard, 31,35, 9J'. Cavan v. Stewart, 54, 107. Cazenove v. \'aughan, 58. Chadwick v. Benning, 202. V. Sills, 121. Clialie V. Duke of York, 2.34. Chamberlain v. Walker, 193. Chajiibers v. Caulficld, 364. V. ('hambcrs, 362. V. Griffith, 139. V. Irwin, 367. V. Jones, 494. V. Robinson, 302. Chamier v. dingo, 3f'3. Champion v. Atkinson, 36. V. vShort, 298. V. Terry, 250. Champncys v. Peck, 24, 198. ChaJidler v. Grieves, 204. V. Roberts, 59. V. Thompson, 267. Channon v. Patch, 402. Chaplin v. Rogers, 218, 219. Chapman v. Beard, 350, V. Black, 169. V. Cowlan, 110. V. de Tastet, 225. v. Gardiner, 83,450. V. Graves, 89. V. Poynton, 76. Chappel V. Durston, 319. Charles, ex parte, 417, 455.. Charles v. Marsden, 168. Charlewood v. Duke of Bedford, 136. Charlton v. Barrett, 293. Charrington v. Milner, 173. Chase v. Westmore, 409, 410. ('hauraud v. Angerstein, 98. Cheap v. Cramond, 213. Cheaslcy v. Barnes, 392. Cheek v. Roper, 159. Cheesman v. Hardham, 269. Cheetham v. Ilampson, 267. Chelsea Water-works v. Cowper, 70. Chcnoweth v. Hay, 426. Chesmer v. Noyes, 163. Cheyne v. Koop, 89. Cliild v. Affleck, 296. V. Hsirdyman, 215. V. Morley, 226. Cliilders v. Bulnois, 131. Chinn v. Morris, 372, 374, 459. Chippendale v. Masson, 134. V.Thurston, 257. Chorly v. Bolcot, 203. Cholmondely v. C:iinton, 324, 327. Christian v. Coombe, 187, 190. Christie v. Fonsick, 254. V. Griggs, 277. Churchill v. Crease, 432, 446. V. Wilkins, 43. Clanccy's case, 79. Claridge v. Dalton, 164. Clarke v. Askew, 416. V. Blackstock, 238. V. Bradshaw, 260. V. Clarke, 28, 408. V. Cock, 151. V. Devhn, 171. V. Donovan, 198. V. Gannon, 93, 465. List of Cases cited. XV Clarke v. Glennie, 23G. V. Gray, 33, 43. V. Hougham, 258. V. Hume, 313. V. King, 142. V. Leslie, 243. V. Lucas, 83, 497. V. Manston, 44. V. Mumford, 223. V. Noel, 172. V. Saffery, 94. V. Smith, 472. Clarkson v. Hanway, 10. V. Woodhouse, 23. Clay V. Langlow, 238. Clayton's case, 248. V. Andrews, 204. V. Burtenshaw, 120, 131, 332. V. Gosling, 150. V. Kinaston, 319. Clegg V. Levy, 60, 128. Clements v. Scudamore, 40. Cleverly v. Brett, 468. Clifford V. Burton, 31. V. Hunter, 96, 181. V. Laton, 214. V. Walmesley, 11- Clinan v. Cooke, 136. Close V. Waterhouse, 409. Clunnes v. Pezzey, 219. Coates V. Bainbridge, 30. V. Hatton, 242. V. Lewis, 247. V. Perry, 127. V. Wilson, 245. Cobb V. Bryan, 356. V. Carpenter, 143, 147. V. Carr, 87. V.Stokes, 320. V. Symonds, 421, 433. Cobban v. Downe, 279. Cobden v. Bolton, 280, 281. Cock V. Tunno, 436. V. Wortham, 390. Cocker v. Compton, 386. Cocks V. Borrodaile, 156. Cochran v. Ritherg, 10. Codd, in re, 452. Coffer V. Brian, 233. (Skigga V. Bernard, 278. Cohen v. Cunningham, 417. v.Hinchley, 180, 183. V. Morgan, 302. v. Templar, 64. Coldwellv. Gregory, 441. Cole v. Blake, 264. Colcdon v. Kenrick, 92. Colegrave v. Dios Santos, 403. Coles v. Tregothick, 137. V. Wright, 228. Colkett v. Freeman, 427. CoUedge v. Horn, 259. Collett V. Lord Keith, 25. Collett v. Thompson, 140. Colling V. Treweek,4, 162, 199. Collins V. Blanterne, 311. V. Nicholson, 197. V. Rybot, 316. Collinson v. Killear, 414. Collott V. Haigh, 172. Colsell V. Budd, 15. Colson V. Selby, 39. Colthird v. Puncheon, 192. Coltman v. Marsh. 260. Colyer v. Speer, 488, 489. Comber's case, 464. Compagnon v. Martin, 41. Compere v. Hicks, 381. Compton's case, 190. Compton v, Bedford, 429. v. Richards, 267. Conolly v. Baxter,. 143. Constable's case, 504. Cooke's case, 97. V. Banks, 21. v. Beal, 370. V. Caldecott, 433. V. Deaton, 245. V. Green, 381. V. Hughes, 299, V. Leonard, 457, 458, 475. V. Lloyd, 114. V. Loxley, 142. V. Maxwell, 98. V. Oxley, 208. V. Parson, 74. V. Sholl, 104. V. Tanswell, 71. V. Ward, 286. Coombs V. Coethier, 61. Cooper V. Amos, 39. V. Chitty, 377. V. Elston, 204, 219. V. Gibbons, 6. V. Marsden,24. V. MarshaU, 381. V. Smith, 136, 205. V. Wakley, 132. Coore V. Callway, 139, 247, 265. Copeland v. Stephens, 312. Corder v. Drakeford, 131. Cork V. Baker, 193. v. Saunders, 240. Corking v. Jarrard, 81. Cormack v. Gillis, 220. Cornish v. Pugh, 83. V. Rowley, 140. V. Searell, 143. Cornwall v. Richardson, 37, 294. Corsar v. Dubois, 64. Corsbic v. Oliver, 34. Cory V. Scott, 164. Cossey v. Diggons, 357. Cossham v. Goldney, 238. Cotes v. Davis, 155. V. Harris, 261. XVI List of dascs cited. (."otlcrill V. Apscy, iilO, 203. V. Dutton, 353. V. Griffiths, '367. V. Hobby, ~'6t;. Ck)ttle V. AKiricli," 'UiT. Cotton V. Jaims, 114, 13-2,303, 42"^ V. Tlmrlaiul,232. Coupland v. Hiirdingliam, 276. Court een v. Toiisc, 94, 178. Coutts V. Gorliain, 267. Covill V. Laming-, 375, 376. Cowell V. Edwards, 226. Cowic V. IIals:ill,126. V. Harris, 416,445. Cowles V. Dunbar, 374. Cowlesham v. Oheslyn, 388. Cowling V. Ely, 29. Cox V. Bent, 331, 355. V. Brain, 32, 261. V. Kershaw, 126. V. Prentice, 228, 230. V. Rcid, 223. Coxon V. liyon, 50. Craig V. Cox, 259. V. Cundell, 465. Craven v. Edmondson, 446. Crawford v. Attorney General, 451. V. Sterling, 251. Crawley v. Hillary, 240. Crepps V. Durden, 479. Crerer v. Sodo, 84, 133. Crimes v. Smyth, 14. Crisp V. Anderson, 116. V. Churchill, 147. Critchlow v. Parry, 166. Crockford v. Winter, 231, 235. Croft V. Allison, 377. V. Paulet, 74. Crofts V. Pick, 312. V. Waterhouse, 277. Crokerv. M'Tavish,401. Cromack v. Heathcote, 92. Cromwell v. Hynson, 160, 163. Crooke v. Curric, 467. V. Dowling, 58, 304. V. Edwards, 451, 452. V. Wright, 384. Crosby v. Crouch, 431. V. Percy, 65, 138. V. Wadsworth, 120, 379. Cross V. Fox, 450. V. Lewis, 17. V. Smith, 160. Crowder v. Austen, 138, 242. V. Shee, 198. Crowther v. Hopwood, 79. V. Ramsbottom, 308,310. Crozer v. Pilling, 262, 307. Crozier v. Cundey, 457. Cruden v. Fentham,277. Crusoe v. Bugby, 313, 314. Crutchley v. Mann, 125. Cubitt V. Porter, 382. Cuffv. Penn,9, 12. CuUeu V. Butler, 183._ Cuming V. French, 165. Cumming v. Bailey, 427, 428. Cundell v. Pratt, 97. Cuncliffe V. Sefton,26, 64,65, 66. Curling v. Innes, 251. Currie v. Child, 64. Curteis v. Willis, 427. Curtis V. Hanway, 190. V. Palmer, 469. V. Wheeler, 133. Curry v. Walter. Cuts V. Pickering, 92. Cuxon V. Cliadley, 233. D. Dacre v. Tebb, 380. Dale, ex parte, 439. V. Birch, 489. V. Sollet, 253. V. Wood, 370. Dalison v. Stark, 8. Dalrymple v. Dalrymple, 360, 361. Dalzell V. Main, 27. Dance \. Robson, 57. Dangerfield v. Welby, 175. Daniel v. Bowles, 194. V. North, 17. V. Pitt, 29. V. Wilson, 461. Daniels v. Potter, 374. Darby v. Boucher, 246. V. Smith, 439. Dartmouth v. Roberts, 106. Dartwall v. Howard, 57. Dashwood v. Peart, 43. David V. Ellice, 236. Davidson v. Seymour, 493. Davies v. Davies, 465. V. Edwards, 40. \'. Lorimer, 385. v. Pierce, 24. V. Ridge, 28. v. Bryan, 228, 229. V. Capper, 373, 480. V. Dale, 64, 95. V. Denworthy, 90. V. Dodd, 147. V. Gill, 387. V. Lewis, 13. V. Noake, 301. V. Russell, 460. V. Smith, 261. V. Willan, 280. V. Williams, 60, 118, 349 Davy V. Smith, 74. Dawes v. Peck, 278. V. Pinner, 235. Dawson v. Morgan, 226. V. Walker, 9. Dax V. Ward, 200. Day V. Bowyer, 39. List of Cases cited. xvii Day V. Edwards, 376. Deacle v. Hancock, 21. Dean v. Brown, 441. Dean and Chapter of Ely v. Stewart, 50. Deane v. Clayton, 277. V. Crane, 465. V. Peel, 366. V. Thomas, 360. De Berkom v. Smith, 212. Decharmy v. Lane, 415. Deering v. Winchelsea, 226. Deffle V. Desanges, 425. De Gaillow v. L'Aigle, 34, 241 . De Halin v. Hartley, 182. De Havelland v. Bowcrbank, 235. Delacroix v. Thevenot, 286. Delafield v. Freeman, 84. Delany v. Jones, 297. De la Torre v. Salkfield, 260. De Mantort v. Saunders, 516. De Medina v. Poison, 145. Denew v. Daverell, 225. Denham v. Stephens, 472. Denn v. Fulford, 55. V. Rawlins, 332. V. Spray, 21, 110, V. White, 91, 393. Dennet v. Grover, 390. Dennis v. Morrice, 165. De Ponthieu v. Penny featlier, 387. Derisley v. Custance, 311. De Sailly v. Morgan, 96. De Symonds v. De la Cour, 190. V. Shedden, 190. De Tastet v. CarroU, 432. Devereux v. Barclay, 403. V. Much dew Church, 344. Devisne, ex parte, 488. Dew V. Hopkinson, 334. V. Parson, 231. Dewdney, ex parte, 417. Dewey v. Bayntun, 497. Deybel's case, 40. Dibdin v. Swan, 298. Dickenson v. Bowes, 148. V. Prentice, 172. V. Shee, 95, 263. V. Valpy, 212. Dickenson v. Coward, 4, 5. Dickson v. Evans, 448. V. Lodge, 180. Diersley's case, 385. Digby V. Atkinson, 331. Dillon V. Fraine, 325. V. Rimmcr, 170. Dingly v. Angrove, 143. Dingwall v. Dunster, 171. D'lsraeli v. Jowett, 112, 181. Ditcham v. Bond, 390. Ditcher v. Kenrick, 64. Dixon V. Bell, 367. V. Deveridge, 236. V. Parks, 317. Dobson V. Bell, 40. Dockwray v. Dickinson, 47. Dodd V. Kyffin, 385. V. Norris, 366, 367, 368. Doddington v. Hudson, 81, 266. Doidge V. Carpenter, 269. Doker v. Hasler, 90, 439. Doman v. Dibden, 234. Donaldson v. Foster, 10. V. Thompson, 103. Doo V. Chippenden, 238. Doswell V. Impey, 373. Douglas V. Patrick, 263. V. Scougall, 181. Doe V. , 337. V. Alexander, 340. V. Allen, 10, 341, 345. V. Andrews, 92, 312. V. Archer, 337. V. Ashburner, 332. V. Askew, 111). V. Banks, 341. V. Batten, 338. V. Benson, 334. V. Bell, 331, 334, 343. ■ V. Bevan, 314. V. Biggs, 326. V. Bingham, 350. V. Bird, 329. V. Bluck, 324. V. Boulcot, 119. V. Boulton, 333. V. Bragg, .351. V. Bray, 115.. V. Briglitwen, 351. V. Callaway, 59, 347. V. Calvert, 73, 335, 338. V. Carter, 145, 314, 330, 350. V. Cartwright, 8, 24. V. Chaplin, 335. V. Chichester, 12. V. Church, 337. V. Clare, 332. V. Clark, 352. V.Cooke, 328, 517. V. Corbett, 132. V. Creed, 351. V. Crick, 336, 338. V. Cuffs, 329. V. Culleford, 337. V. Danvers, 347. V. Davis, 352, 394. v. Day, 118. v. Deakin, 18. V. Donovan, 333. v. Dunbar, 338. V. Durnford, 64, 333. V. Dyeball, 324. V. Dyson, 340. V. East London Waterworks Compa- ny, 68. V. Evans, 25, 65. V. Fairclough, 337. V. Fenn, 3, 5. V. Fenrside, 332. XVlll List of Cases cited. IK.. V. rirmiiiiT, nil. Doc V. Paine, 341, 342. V. [''oster, 'A'.i5. V. Palmer, ,338. \. l-'rowtl, 3;W. V. Parker, 311, 339. V. Fuciiiui, ;mo. V. Pasquali, 339. V. Uibbs, 3:) 1. d. Passingham v. Lloyd, 114. V. Giles, 348. V. Paul, 68, 340. V. Grant, 3:25. V. Payne, 314. V. Green, 24, 8.9, 333. V. Peach, 75, 76. V. (ircy, 5, U, 347. v.Pearscy, 381,382. V. Grittin, 18. V. Pembroke, 20. V. Gririith, 8. V. Perkins, 98, 328. V. Groves, 33:2. V. Perks, 346. V. Idaddon, 110. V. Phillips, 341. V. Hale, 5;i. V. Pierce, 336. V Hall, 347. V. Powell, 314. V. Halls, 517. V. Prosser, 329. V. Halse, 351. V. Pye, 25. V. Harris, 3;2ii. V. Quigley, 333. V. Harvey, 5, 20. V. Read, 17, 325, 328, 336. V. Hasscl, 333. V. Rickarby, 314, 341. V. Hellier, 347. V. Robson, 339. V. Heming, 71. V. Roe, 134. V. Hilder, 327. V. Rosser, 115. V. Hog^, 314. V. Rowe, 342. V. Hull, 351. V. Rowlston, 342. V. Hulinc, 336. V. Salter, 329. V. Humphreys, 338. V. Samuel, 330, 334, 335. V. Huthwaite, 12. V. Sayer, 333. V. Inglis, 33y. V. Scott, 327, 335. V. Jackson, 315, 332, 337. V. Selwyn, 334. V. Jesson, 18, 353. V. Shatton, 331. V. Jolmson, 16, 65, 334, 341. V. Shawcross, 340, 343. V. Jones, 24, 353, 354. V. Simpson, 326. V. Kemp, 515. V. S. Reggs, 314. V. Kightley, 333, 337. V. Slade, 326. ■ V. Knight, 68. V. Smith, 314, 332, 345, 347, 348 V. Lamb, 334. V. Snowdon, 334. V. Lamblc, 324. V. Somerville, 331. V. Lambly, 335. V. Spence, 334. V. Laming, 314. V. Spiller, 337. V. Lancashire, 346. V. Stapleton, 334. V. Lawder, 333. V. Steel, 338. V. Lea, 335, 3M. V. Stennet, 332. V. Levi, 336. V. Stratton, 331. V. Listen, 415, 417. V. Summersett, 517. V. Lloyd, 70, 75. V. Sybotham, 105. V. Lord, 343. V. Tarver, 70. V. Loveless, 347. V. Teage, 351. V. Lucas, 338. V. Thomas, 17, 92. V. Mado.x, 114. V. Tindal, 134. V. Maisy, 348. v.Tootli, 81,87. V. Maniibld, 74. V. Tucker, 515. V. Mason, 54. V. Tyler, 100, 350. V. Marquis of Cleaveland, 17. V. Vince, 334. V. Miles, 26. V. Walker, 74. V. Miller, 342. V. VVallinger, 69. d. Morecraft v. Meux, 342. V. Watkins, 334, 338. V. Morris, 8. V. Watson, 26. d. Morris v. Rosser, 324. V. Watts, 328, 339. v. Mulliner, 3.52. V. Westlake, 13. V. Murless, 348. V. White, 340. v. Newman, 343. V. Whitroe, 330. V. Nicholls, 326. V. Whittick, 339. V. Orchard, 155. V. Wilford. 12. V. Oxenden, 12. V. Wilde, 82, 83, 350. List of Cases cited. XIX Doe V. Wilkinson, 352. V. Williams, 312, 314, 336, 350. V. Willingate, 338. V. Wilson, 14. V. Wolley, 18, 70, 75. V. Woodbridge, 342. V. Woodman, 335, 336, 338. V. Wright, 326. V. Wriglitman, 337. V. Wroot, 325. Doulson V. Matthews, 383. Douthat, ex parte, 418. Dover v. Maester, 117. Dow V. Bingham, 83. Dowden v. Fowle, 452, 496. Down V. Hailing, 397, 399. Downes v. Moreman, 61. V. Richardson, 126. V. Skrymsher, 370. Dowthwaite v. Tebbutt, 259. Dowton V. Cross, 418. Doxon V. Haigh, 3. Drabble v. Dorimer, 6. Drake v. Shorter, 404. V. Marryat, 187. V. Smyth, 108. V. Sykes,-30, 483, 484. Drant v. Brown, 116, 121. Draper v. Glassop, 319. Drayton v. Dale, 156. Drew V. Clifford, 197. Drewey v. Twiss, 51. Dry V. Boswell, 213. Du Barre v. Levette, 91. Du Belloix v. Lord Waterpark, 15, 170. Duberley v. Gimning, 77, 364. Dubois V. Ludert, 238. Du Bost V. Beresford, 378. Duchess of Kingston's case, 100, 101, 102, 110. Duck V. Braddyl, 488. Dudley v. Follett, 315. V. Vaughan, 426, 427. Duff V. Budd, 279, 281. Duffield V. Creed, 15. Duffit V. James, 203. Dufrene v. Hutcliinson, 404. Dufresne, ex parte, 434. Duke V. AldridjTc, 28. Duke of Newca^sue, v. Clarke, 379, 381. Norfolk's case. V. Worthy, 138, 149. Somerset v. France, 59. Duncan v. Blundell, 265. V. Scott, 5.5, 57, 154. V. Surrey Canal Company, 407. V. Thwaites, 297. Dunk V. Hmiter, 332, 355. Dunmore v. Bigg, 296. Dunne v. Anderson, 298. Dunne v. Cartwright, 331. V. Murray, 11.5. V. O'Kccfc, 157. Dunne v. Slee, 29. Durrel v. Bedderley, 98, 188. Dutton V. Morrison, 429. V. Solomonson, 211. Dyer v. Ashton, 32. V. Bowley, 357. Dyson v. CoUick, 378, 379. Dyster, ex parte, 441 . E. Eales V. Dicker, 157. Eardly v. Price, 203. Earith v. Schroder, 414. Earl of Derby v. Taylar, 312. Earl V. Lewis, 63, 72. East V. Chapman, 97, 297, 299. Easterley v. Pullen, 258, 260. East India Company v. Glover, 34. Eastwood V. Brown, 485, 486. Easum v. Cato, 447. Eaton V. Jaques, 312. Eaves v. Dixon, 192. Ecclestone v. Speake, 346. Edden v. Read, 229. Eden v. Parkison, 181. Edis v. Bury, 151. Edmonds v. Lowe, 85, 174. v. Rowe, 78. v. Walter, 95. Edmondson v. Stephenson, 295. Edmonson v. Machill, 366. Edmonstone v. Plaisted, 8, 56. Edwards v. Brown, 516. V. Crock, 91,364. V. Dick, 168. V. Ethcrington, 147. V. Hallinder, 266. V. Harden, 467, 455. V. Hodding, 141, 228. V. Lucas, 49. V. Stone, 316. V. WOIiams, 300. V. Yates, 265. Egan V. ThrelfaU, 399. Egerton v. Matthews, 205. Egg V. Barnett, 15. Eicke V. Nokes, 92, 198. Eldew V. Keddel, 60. Elford V. Tweed, 158. EUiot V. Edwards, 138. V. Niclilin, 366. Ellis, ex parte, 442. V. Rowles, 389. V. Hamlen, 221, 225. V. Galindo, 171. V. Smith, 73. Elmore v. Kingscote, 205. V. Stone, 218, 219. Elsam V. Fawcctt, 365. Elsce V. Smith, 373. Elsom V. Braily, 450. Elton V. .Tordan, 192. Klwes V. Ehves, 362. w List of Cases died. Einniuiel v. Constable, 15. Einincrson v. Blonden, 31. V. Bovillc, 346. V. Hielis, 46, 120, 137, 13!). Emmet v. Butler, 88. Enderby, ex parte, 441. Enfrlaiul V. Kojier, 66. English V. Darley, 170, 171. E]iiniK V. Dorristliornc, 58. Erving v. Peters, 471. Esdaile v. Sowerby, 158. Estwicke v. Cailland, 486. V. Cooke, 40. Evans v. Bio^ncU, 327. V. Birch, 15. V. Brander, 4S)6. V. Craniling-ton, 156. V. Indkins, 264. V. Lewis, 42. V. Prosser, 252. V. Roberts, 120, 37!). V. Soule, 281. V. Sweet, 5. V. Vaughan, 315. V. Verity, 235. V. Yeatlierd, 89, 238. Evelyn v. Chichester, 245. Everest v. Wood, 406. Everett v. Collins, 24!). V. Tiedall, 322. Everth v. Bell, 32. V. Tunno, 182. Ewer V. Ambrose, 57, 97. Eyre v. Palsgrave, 61, 182. ExaU V. Partridge, 226. Exeter, city of, v. Clare, 319. Exon V. Russell, 149, 156. F. Fair v. M'lver, 449. V. Price, 175. Fairclaim v. Shackleton, 329. Fairlie v. Birch, 492. v. Dowton, 233. V. Hastings, 30. v. Herring, 151. Fairman v. Ives, 295. Falconer v. Hanson, 58, 59. Falkener v. Case, 438. Falmouth, Lord, v. George, 82. Farebrother v. Simmons, 137. Farewell v. Dickenson, 318. Farquliar v. Farley, 141. v. Soulhcy, 171. Farmer v. Russell, 2.32. Farnsworlh v. Garrard, 220, 225. Farr v. Price, 116. Farrance v. Elkington, .321. Farrant v. Thompson, 402. Farrar v. Nightingale, 139. Fasset v. Brown, 66. Faulderv. Silk, 108. Fuwcett V. Fowlis, 109, 480. V. WraUiall, 89. Fayle v. Bird. 14!), 152. Fearne v. Lewis, 257, 259. V. Wilson, li)7. Featherstone v. Hunt, 1 70. Fcatherstonchaugh v. Johnson, 404. Fellowcs V. Stewart, 363. v. Williamson, 22. Fellliam v. Terry, 232. Fenn v. Grainger, 87. V. Griffith, 9. V. Harrison, 191. Fcnner v. Duplock, 356. Fcnnings v. Lord Grenville, 406. Fentiman v. Smith, 265. Fenton v. Correa, 197. Fentum v. Pocock, 172. Fenwick v. Thornton, 28. F'erguson v. Carrington, 220. Fermor's case, 328. v. Phillips, 483. Ferrars v. Arden, 101. Ferrer v. Owen, 76. Ferrers v. Shirley, 105. Fidgeon v. Sharpe, 430, 431. Fieldv. Curtis, 83,450. • V. MitcheU, 83, 309, 310. Fielder V. Raye, 117. v. Starkin, 220. Filliter v. Minchin, 68. Finchett v. How, 198. Finden v. Westlake, 297. Finnell v. Ridlcr, 243. Finnerty v. Tipper, 294, 299. Firbank v. Bell, 124. Firth v. Thrush, 165. Fisher v. Fallows, 227. v. Lane, 59. v. Leslie, 131. V. Ogle, 103. v. Prosser, 351. V. Sanuda, 220. Fitch V. Sutton, 239. Fitzgerald v. Elsee, 66. Fitzsimons v. Inglis, 48. Fleming v. Hayne, 261. V. Jarratt, 467. Fletcher v. Braddyll, 61, 114. V. Dych, 251. v. Frogratt, 34, 165. V. Health, 410. V. Inglis, 183. V. Wilkins,457. V. Woodmas, 450. Flewster v. Royle, 373. Flinn V. Tobin, 188. Flint V. Pike, 297. Flower v. Adam, 277. V. Pedley, 47, 285. Flureaux v. Thornshill, 140. Focus v. Salisbury, 328, Folkes v. Chadd, 36, 98. List of Cases cited. XXI Folkes V. Sfllway, 22, 195. V. Sendder, 415. Fonsick v. Agar, 59. Foote V. Hayne, 91, 195, 429, 1.30. Forbes v. Wales, 70. Ford V. Fotherffill, 245, 246. v.Gre}', 33, 328.351. V. Maxwell, 199. V. Webb, 197. Fordsdick v. Collins, 403. Fores v. Johnes, 244. V. Wilson, 366. Forley v. Wood, 334. Forman v. Jacob, 148, 150. Forrester v. Pigou, 81, 82, 139. Forshaw v. Cliabert, 181. Forte V. Vine, 315. Forty V. Imber, 356. Forsyth's case, 112. V. Jervis, 211. Forward v, Pittard, 278. Foster, ex parte, 427. V. AUanson, 236. V. Blakelock, 468. V. Compton, 56. V. Stewart, 145, 222. V. Western, 234, 235. Fotherington v. Greenwood, 82. Fountain v. Young, 91. Fowler v. Bourne, 417. V. Coster, 133, V. Down, 400. Fox V. Clifton, 213. V. Cutworth, 223. V. Fisher, 440, 442. V. Swann, 350. Fragano v. Long, 279. France v. Lucy, 5, 164. Francis v. Cry well, 247. V. Neavc, 454. Freinkland v. Nicholson, 363. Franklin v. Hosier, 409. Franks v. Duchess de Piennc, 211. V. Morrice, 370. Fraser v. Marsh, 93. Free V. Hawkins, 176. Freeman's case, 359. V. Arkell, 4, 301. V. Barnes, 328. V. Hyctt, 251. V. Jacob, 50. V. Jury, 145, 331. V. Phillips, 21 . V. Stacey, 319. French v. Andrade, 253. Friend's case, 97. Froniont v. Coupland, 236. Frost V. Bengough, 259. I-'rowd V. Stillard, 196. Fuller V. Fotdi, 61, 104, 480. V. Smith, 230. Furley v. Wood, 325. Furneax v. Fothcrby, 378. Furness v. Cope, 24. D Fry V. Wood, 70. Fry V. Hill, 158. Fryer v. Brown, 148. Gabay v. Lloyd, 18?. Gadd V. Bennett, 305. Gainsford v. Carroll, 209. V. Grammar, 30. Ga'traith v. NeviJie, 107. Gale V. Dalrymple, 370. V. Halfknight, 420. Gallaway v. Susach, 319. Gallimore, ex parte, 421. Gallaway v. Smithson, 152. Ganer v. Ladv Lanesborough, 40, 60. Gandall v. Pontiquy, 203. Garbutt v. Watson, 204. Gardiner v. Croasdale, 41, 186. V. Jardis, 365. Garland, ex parte, 421. V. Scoones, 56. Garment v. Barr, 192. Garnett v. Ball, 29. V. Willian, 281. V. Woodstock, 158, 159. Garratt v. Moule, 426. Garrels v. Alexander, 68. Garrett v. HandJej', 43. Gartskill v. Greathead, 2-13. Geary v. Bearcroft, 380. Geill V. Jeremy, 161. George v. Clagett, 253. V. Pcrring, 498. V. Pritchard, 140. V. Surrey, 68. Giller, ex parte, 213. Gemicr v. Sparkes, 363. Gcrardy v. Richardson, 147. Germain v. Burton, 220. Ger\'is v. the Grand Western Canal Comp- any, 33. Gevers v. Mainwaring, 82. Gibbon v. Coggan, 164, 490. V. Featherstonehaugh, 14. Gibbons v. Gaunt, 346. V. M«Casland, 255. V. Pepper, 369. V. Phillips, 430, 483. Gibson v. Bray, 441. V. Chaters, 306. V. Courtliorpe, 144. V. Hawkey, 370. V. Hunter, 134. V. Maccarty, 102. V. Oldfield, 518. Giles V. Dyson, 468. V. Perkins, 443. Gill V. Cubitt, 398, 399. Gillies V. Smither, 71, 469. Gillingham v. Laing, 426. Gillion V. Boddington, 268. Gilman v. Cousins, 416. V. Robinson, 216. IXll Ltsi of Cases cited. Gilpin V. Rundle, 243. Cimbert v. Coyney, 479. Gladstone v. Ncale, 45. Glaistcr v. Hewer, 418. Glasscot V. Day, 264. Glassington v. Rawlins, 433. ■ Glazebrooke v. Woodrow, 138. Glossop V.Pole, 109, 497. Glover v. Lane, 389. Glynn v. Bank of Ens;land, 23. Goddall V. DoUey, 157. Goddard v. Cox, 248, 249. Godefroy v. Jay, 54. Godfrey v.Macaulcy, 111- V. Norris, 65. Godson V. Smith, 101. Golden v. Manning, 279. Golding V. Nias, 358. Goldsmid v. Broiner, 360. Gomersal v. Searle, 435. Goodacre v. Breame, 83, 89. Goodall V. Dolley, 165. V. Skelton, 211. Goode V. Harrison, 245. V. Langley, 397. Goodes V. Wheatley, 47. Goodliay v. Hendry, 81. Goodland v. Bleweth, 247, 262. Goodright v. Cordwent, 338. V. Davids, 341. V. Forrester, 328. V. Moss, 20, 344. V. Rich, 386. V. Saul, 344. Goodson V. Forbes, 118. Goodtitle v. Braham, 70, 133. V. Herbert, 325, 332. V. Jones, 326. V. Lammiman, 329. V. North, 394. V. Otway, 346. d. Parker v. Baldwin, 324. V. Southern, 13. V. Toombs, 3.)4. V. Walter, 145, 330. V. Welford, 85, 93. V. Woodward, 335. V. West, 76. Goom V. Aflalo, 206. Gordicr v. Meilville, 338. Gordon v. Austin, 148. V. Gordon, 49. v. Harper, 395, 402. v. Rimmington, 184. V. Secretan, 71. V. Swan, 235. v. Trevelyan, 136. V. Wilkinson, 434. Gorham v. Thompson, 111. Gorton v. Dyson, 8. Gosling V. Birnie, 518. Goss V. Jackson, 481. V. Tracey, 351. V. Wallinglon, 324. Gosson V. Graham, 377. (iough V. (/Ccil, 65. V. Davies, 236. V. Far, 194. Goujd V. Johnson, 254. V. Robson, 170, 171. Governors of Lucton School v. Scarlett, 11. Gowland v. Warren, 454. Goyc V. Radford, 305. Grace v. Smith, 213. Graft V. Ld. Brownlow Bertie, 36. Graham v. Dystcr, 6. V. Grill, 454. v. Hope, 111. v. Hundred of Becontree, 504, 505. V. Jackson, 208. v. Mulecaater, 436. V. Peat, 378. V. Robertson, 42. Grammar v. Legge, 146. Granger v. Furlong, 452. V. Warms, 139. Grant, ex parte, 444. V. Da Costa, 150. V. Fletcher, 206. V. Jackson, 25, 106. V. Vaughan, 398. Gravenor v. Woodhouse, 1 43, 145, 146, 330, 356. Gray v. Bond, 16. V. Cookson, 480, 481. v. Gutteridge. 141. V. Milner, 149. V. Palmers, 1.52. Grayson v, Atkinson, 73. Greaslcy v. Higginbottom, 505, 506. Greaves v. Ashlin, 9, 207. Green v. Brown, 183. v. Dalton, 363. v. Davies, 119, 131,236. v. Deakin, 152. v. Dunn, 405. v. Elmslie, 184. T. Farmer, 250, 408, 409. v. Goddard, 371. V. Hearne, 34. v. Hindley, 164. V. Hurd, 475. V. Jones, 452. V. New River Company, 82, 85, 101. V. Parker, 246. Greening v. Clerk, 439. Greenway v. Fisher, 455. Gregory v. Doidge, 356. v. Fraser, 117. v. Howard, 25, 307. v. Hurrill, 322, 417. V. Piper, 383. Grellier v. Neale, 66, 67. Gremaire v. Le Clerk Bois Valan, 202. Ijist of Cases cited. XXlll Gresley v. Price, 41 G. Grey v. Hodson, 175. V. Rennett, 50. V. Smith, 131. Griffen v. Langfield, 246. V. Parsons, 369. Griffith V. WilUams, 70. Griffiths V. Franklin, 467. V. Lee, 279. V. Mattliews, 16. Grigby v. Oates, 263. Grimaldi v. White, 220. Grimman v. Legge, 144. Groning v. Mendliam, 211, 220. Groome v. Forrester, 479. Groves v. Buck, 204. Guest V. Caumont, 51, 145. Gwinney v. Philips, 310. GuUy V. Bishop of Exeter, 4. Gunson v. Metz, 160, 165. Guhton V. Nurse, 405. Gurdon v. Robson, 212. Gurney v. Langlands, 70. Gurr V. Rutton, 438. Guthrie v. Wood, 486. Gutteridge v. Smith, 32. Guy V.Harris, 131. V. West, 382. Gwyllim v. Scholey, 496. GylFord v. Woodgate, 305. Gyles V. HiU, 55. H. Habershon v. Troby, 307. Habner v. Richardson, 169, 178. Haddow v. Parry, 24, 179, 180. Hagedorn v. Laing, 207. V. Oliverson, 179. V. Reid, 7. V. Whitmore, 184. Hahn v. Corbett, 183. Haigh V. DelaCour, 189. Halden v. Glasscock, 196. Hall, ex parte, 448. V. Burgess, 144, 146. V. Chandless, 166. V. Curzon, 89. V. Doe, 328, 352. V. Elliott, 467. V. Fuller, 230. V. Hollander, 366. V. Pickard, 375. V. Rex, 89. V. Small, 422. V. Smith, 238, 292. V. Wood, 248. Halliday v. Ward, 258. Halliley v. Nicholson, 9. Ham V. Toovcy, 215. Hamblyv. Trott, 145. Hamer v. Raymond, 51. Haniilton v. Pitt, 516. Hammond v. Dufresne, 164. Hammond v. Hicks, 425. V. Stewart, 76. Hamper, ex parte, 214. Hancock v. Hey wood, 435. Handcock v. Baker, 374. Handey v. Henson, 201, 202. Hands v. Burton, 190, 210. v. James, 74. v. Slaney, 245. Hankey v. Jones, 421. V.Smith, 207, 447,448. V. Wilson, 154. Hansard v. Robinson, 147. Hanson v. Armitage, 217. V. Parker, 28. V. Robertdeau, 141. V. Stevenson, 313. Hanway v. Boultbee, 518. Harcourt, ex parte, 452. Hardcastle v. Netherwood, 252. Harding v. Bulman, 295. v. Crethorn, 137. V. Davies, 264. v. Greening, 287. Hardwick v. Blanchard, 172. Hardy's case, 95, 97.' V. Ryle, 477. V. Woodroffe, 149, 175. Hare v. Munn, 238. V. Travis, 189. Harewood v. Sims, 21. Hargrave v. Le Breton, 293. V. Shewin, 355. Harford v. Morris, 360,361. Harland v. Bromley, 143, J46. Harman v. Vaux, 185. Harmer v. Davies, 27. V. Rowe, 311, 317. Harper v. Carr, 456. V. Charlesworth, 18, 378, 380. Harrmgton v. Fry, 69, 223. V. Macmorris, 33, 39, 45, 228. v. Wise, 331. Harris v. Asley, 317. V. Baker, 268. V. Cook, 308. v. Fowle, 190, 210. v. Hill, 64. V. James, 454. V. Mantle, 313. V. Morris, 215. V. Orme, 199. V. Saunders, 107. V. Tippett, 95. V. Woodford, 322. Harrison, ex parte, 421. V. Barnby, V. Barry, 488. V. Blades, 65. V. Cage, 193. V. Harrison, 73. V. Parker, 382. V. Valance, 29. V. Wilson, 45. XXIV List of ( ^isrs cited. Hart V. Horn, 357. V. M'xMumarn, 101. V. Sattley, 211. Hartley V. Case, 159, IGl. V. Halliwell, 275. . V. Herring, 294. V. Hitchcock, '111. V. rcliall, 13Jt. Horton v. Harton, 326. Hartsliorn v. Sloddcn, 430, 4.32. Harvey v. Arcliboid, 228. V. CoUison, 82. V. Morgtin, 6, 436. V. Ramsbottom, 427. V. Ray, 13. Ilarwood v. Goodrigiit, 346. Hasser v. Wallis, 231. Hastelow v. Jack.son, 2.32. Hastings v. Wilson, 313. Hasvvell v. Thorogood, 455. Hatcher v. Fineux, 352. Hatfield V. Thorp, 75. Hatiaway v. Barrow, 102. Haughton v. Butler, 403. V. Ewbank, 178. Havelock v. Rockwoo'd, 103. Hawes v. Crowe, 409. Hawke v. Bacon, 270, 383. Hawkes v. Salter, 162. Hawkings v. Inwood, 83. Hawkins v. Finlayson, 82. V. Howard, 64. V. Kemp, 75. V. Plomer, 493. V. Ramsbottom, 237. V Rutt, 248. V. Smith, 138. V. Warre, 8, 121, 131. V. Whitten, 427, US. Hawley v. Peacock, 311. Hayden v. Hayward, 224. Hay don v. Williams, 516. Hayling v. Mullhall, 1 70. Haynesv. Berks, 161. Haywood v. Ilaque, 265. Hazard v. Treadwell, 21 6. Head v. Head, 345. Heanny v. Birch, 421. Hearne v. Edmunds, 186. V. Rogers, 25, 28, 421 . V. Tomlin, 145. Heath v. Hall, 85, 452. V. Hubbard, 406. V. Pryn, 350. Heatherley v. Weston, .325. Hebdcn v. Hartsink, 250. V. C'napman, 374. Helier v. Franklin, 317. V. Hundred of BenhurKt, 504, 505. Hellings v. Gregory, 198. V. Shaw, 259, 260. Helmsley v. Loader, 150. Helps V. Glenister, 397. HelwJs v.Lamb, 386. Hdycnr v. Ilawkc, 29, 191. Heiumings v. Smith, 359. V. Robinson, 155. V. Wilton, 198. Hcndebourke v. Langston, 86. Henderson v. Barnewall, 137, 206. Henley v. Mayor of Lynn, 277. V. Soper, 107, 236. Henman V. Dickinson, 148. Hcnnell v. Lyon, 57, 59, 67. Henry v. Adey, 40, 54. V. Leigh, 5, 99, 158, 454. Henshaw v. Pleasance, 104. Herbert v. Cooke, 107, 108. V. Tuckal, 20. V. Wilcocks, 22. Herner v. Battyn, 305. llerver v. Dawson, 296. Hervey v. Liddiard, 439. Hetherington v. Kemp, 162. Hewlett V. Crutchley, 303. Hewlins v. Shippam, 265. Heylin v. Hastings, 254. Heyman v. Parish, 183. Heys V. Heseltine, 45. Hibbert v. Shee, 139, 207. Hick V. Keats, 227. Hickenbotham-v. Groves, 441- Hickey v. Haytor, 25, 469. Hickhng y. Harday, 221. Hicks V. Hicks, 229. Higgins V. M'Adam, 433. V. Sargeant, 235. Higgs V. Dixon, 64. Higham v. Baddelay, 264. V. Ridgway, 19, 20. Kighfield v. Peake, 55, 57, 58. Highmore v. Primrose, 149, 154, 236. Hill, ex parte, 454. V. Bateman, 479, 480. V. Farnell, 446. V. Gray, 242. v. Heap, 165. V. Hill, 31. V. Humphrej's, 198, 199. V. Patten, 128. v. Perrott, 209, V. Read, 172. v. Sheriff of Middlesex, 483. V. Wright, 356. Hilliard v. Ticonard, 256. Hillyard v. Grantham, 102. Hinde v. Whitehouse, 209, 219, 396. Hindle v. Blades, 495, 496. Hindley v. Marq. of Westmeath, 214. Hindsley v. Russell, 468. Hiscocks V. Jones, 494. Hiscox V. Greenwood, 411. Kitchen v. Campbell, 101. Hoare v. Allen, 22, 362, 364. V. Coryton, 418. V. Mill, 50. V. Millner, 45, 207. List of Cases cited. XXV Hobson V. Middleton, 315. V. Todd, 270. Hockin v. Cooke, 45. Hockless V. Mitchell, 93. Hodenpyl v. Vingcrhold, 153. Hodge V. Fillis, 149. Hodges V. Wyndham, 364. Hodgkin v. Queenborough, 310. Hodgkins v. Robson, 319. Hodgkinson v. Fletcher, 214. V. Marsden, 316. Hodgson V. Le Brett, 218. V. Scarlet, 295. V. Temple, 242. Hodnet v. Forman, 64. Hoe V. Taylor, 380. Hoffmaji V. Pitt, 450, 486. Hogan V. Page, 235. Hogg V. Bridges, 436. Holbind v. Anderson, 487. Holcomb V. Hewson, 36. Holdfast V. Clapham, 347. Holder v. Coates, 383. Holderness v. Collinson, 408. Holdingshaw v. Rag, 390. Holdsworth v. Wise, 187. Holdford V. Hatch, 312. Holland v. Hopkins, 38. V. Jourdine, 247. Holliday v. Camsell, 406. Hollis V. Goldfinch, 37, 379. Holloway v. Clarke, 346. Holme V. Smith, 76. Holmes v. Green, 257. V. Kerrison, 254. V. Pontin, 146. Holroyd v. Breare, 373. V. Doncaster, 373. V. Gwynne, 420, 425. V. Whitehead, 425. Holt V. Brien, 214. V. Squire, 153. V. Ward, 193. Holton V. Bordero, 478. Honeywood v. Peacock, 65. Hood V. Reeves, 10. Hook V. Jones, 430. Hooper v. Hooper, 102. V. Smith, 429. V. Summersett, 466. Hope V. Atkins, 9. Hopewell v. Do Pinna, 241. Hopkins v. Appleby, 220. V. Glazebrook, 140,515. Hopkinson v. Smith, 200. Hopper V. Reeve, 375. V. Richmond, 234. V. Smith, 131. Horn V. Baker, 440. V. Noel, 360. Hornblower v. Proud, 438, 443. Hornbuckle v. Hanbury, 215. Horncastle v. Farran, 411. Horneyor v. Lushington, 103. llorsefall v. Handley, 228. Horsey's case, 454. Horwood V. Smith, 397. Hoskins v. Knight, 488. Houlditch v. Birch, 493. v. Desange, 412. Houleston v. Smith, 59, 215. Houstman v. Thornton, 184. Houston V. Hughes, 326. Hovill V. Stephenson, 66. How V. Hall, 4. Howard v. Burton wood, 114, 364. V. Castle, 138. V. Hodges, 244. V. Ramsbottom, 415. V. Shipley, 86, V. Wemsley, 333. Howe V. Palmer, 217. Howell, ex parte, 417. V. Richards, 49. V. Young, 254, 268. Howes V. Martin, 226. Howlett V. Haswell, 246. Howson V. Hancock, 232. Hubbard v. Jackson, 125, 182. Hubert v. Moreau, 456. Hucks V. Thornton, 185. Huddlestone v. Briscoe, 117. Hudson V. Harrison, 188. v. Hudson, 397. V. Revett, 66. V. Robinson, 89. Huet V. Le Mesurier, 114. Huggett V. Montgomery, 376. Huggins V. Sargent, 233. Hughes V. Breeds, 120. V. Cornelius, 103. V. Morley, 455. V. Thomas, 381. Hull V. Vaughan, 142, 145. Hulle V. Heightman, 203. Hulman v. Bennet, 47. Humphrey v. Moxon, 172. Humphreys v. Partridge, 409. Hunt v. Andrews, 113. v. Connor, 435. v. De Blacquire, 215. V. Mortimer, 430. V. Royal Exchange Assurance, 188. V. Silk, 141. V. Stevens, 34, 119, 463. Hunter v. Britts, 393. V. French, 301. V. Gibson, 36. V. Kijig, 492. V. Price, 324. V. Rice, 115, 398. V. Welsh, 38. V. Westbroke, 402. Hupe V. Phelps, 203. Hurd V. Fletcher, 315. V. Leach, 196. Hurst V. Parker, 254. XXVl List of Cases cited. Ilurst V. Watkins, 3?. Hussey v. Cliristey, 409. Hutchins v. Chambers, 308. Hutcliiiison V. Kcarns, 317. V. Fipcr, 322. Hutman v. Hulnois, 203. HuUon V. Manscll, 1!)4. Huxliani v. SiniUi, 107, 264. Huxley v. Berg, 88, 385. Hyde v. Cogan, 51)4, 505. V. Trent and Mersey Navigation Company, 279. I. Iggulden V. May, 11. Ilderton v. Atkinson, 84. V. Ilderton, 111. Illingworth v. Leigh, 23. Incledon v. Berry, 302. V. Douglas, 246. Ingram v. Dade, 81. V.Lee, 121. V. Sliirlcy, 211. Ireland v. Powell, 21. Irons v. Smallpiece, 397. Irving V. Greenwood, 195. v. Wilson, 231, 461. Irwin V. Dearman, 366, 367. Israel v. Benjamin, 32, 33. V. Douglass, 233. V. Israel, 131. J. Jacand v. French, 170. Jackson v. Allen, 71. V. Anderson, 404. V. Attrill, 243. V. BurleigJi, 306. V. Hesketh, 123. v.Irwin,416, 428, 439. V. Shillito, 271. Jacob V. Lindsay, 27,130. Jocobs V. Hart, 126. V. Latour, 411. Jacques v. Witby, 232. Jaggers v. Bennings, 31. James, ex parte, 451. V. Hatfield, «3. V. Shore, 46, 139, 207. v. Swift, 476. v. Wood, 484. Jameson v. Svvinton, 160. Jaques V. Whitcombe, 498. Jarman v. Woolloton, 441. Jarvis v. Dean, 271. Jay V. Warren, 171. Jayne v. Price, 343. Jebb V. M'Kieman, 122. Jefferics v. Duncombe, 51. Jeffrey v. Barrow, 473. JekyU V. Sir J. Moore, 295. Jelfv. Oriel, 42. Jelf V. Douglas. 42. Jellis V. Mountford, 417. Jenkins v. Pritchard, 328. V. Turner, 275. Jenks's case, 472. Jennings v. Griffiths, 223. v. Throgmorton, 147, 244 Jenny v. Moody, 3 10. Jerrett v. Wcarc, 353. Jewry v. Busk, 222. Jezeph v. Ingram, 486. Johnson v. Alston, 200. v. Baker, 68. V. Browning, 87. V. Carre, 319. V. Collins, 151. V. Duke of Marlborough, 126. V. Evans, 295. V. Hill, 409. V. Howson, 385. V. Huddlestone, 144, 242, 321, 356. V. Johnson, 346. V. Lawson, 20. V. M'Adam, 366. V. Mason, 68, 153. V. Smith, 477. V. Sutton, 302. V, Ward, 180. Jones V. Berkeley, 138. V. Bird, 268, 477. V. Brindley, 225. V. Brooke, 83, 172. V. Clayton, 41, 496. V. Cowley, 44, 191. V. Darch, 155. V. Duyer, 439. V. Edwards, 5. V. Fort, 132, 405, 413. V. Hart, 406. V. Mars, 150. V. Marsh, 338. V. Mason, 64. T. Morgan, 153. V. Pearle, 411. V. Pengree, 261 . V. Perry, 276. V. Radlord, 154. V. Randall, 53. V. Ryde, 229. V. Simpson, 124, 125, 476. V. Stevens, 38, 292, 299. V. Stroud, 99. V. Tanner, 466. V. Vaughan, 457. V. Wood, 483. Jory V. Orcliard, 457. Jourdainc v. Lashbrookc, 173. V. I,efevre, 408, 451. Joves v. Bow, 102. Jowett V. Charnock, 148. Judge V. Cox, 275. V. Morgan, 48. Judine v. Da Co£«en, 426. List of Cases cited. xxvii K. Kahl V. Janson, 29. Kain v. Old, 208. Kannen v. M'MuUen, 203. Kay V. Brookman, 65.. V. Duchess de Pienne, 241. Kearney v. King, 40, 45, 150. Kearslake v. Morgan, 221. Keating v. Bulkeley, 145. Keech v. Hall, 348. Keegan v. Smith, 215. Keehng v. BaU, 71. Keene v. Batshore, 116, 237. V. Deardon, 326, 327, 352. Keightley v. Birch, 83, 497. Kell V. Nainby, 43, 212. Kellow V. Rowden, 472. Kemp V. Derrett, 333, 334. Kempland v. Macauley, 497. Kempson v. Saunders, 229. Kempton v. Cross, 60, 349. Kenebel v. Scrafton, 347. Kennerley v. Nash, 126, 234. Kennet v. Greenwallers, 451. Kenrick v. Beauclerk, 326. V. Taylor, 265. Kensington v. Inglis, 3, 98, 128, 182. Kent V. Lowen, 169. Kenworthy v. Schofield, 137, 205. Kerr v. Osborne, 229. V. Willan, 280. Kerrison v. Cooke, 172. Kershaw v. Cox, 126. Kessebower v. Tims, 176. Key V. Flint, 449. Keymer v. Summers, 16. Keyworth v. Hill, 402. Kidd V. Rawlinson, 485. Kilby V. Wilson, 397. Kilgour V. Finlayson, 155. Kine v. Beaumont, 4, 162, 333. King V. Brampton, 361. V. Chambers, 503. V. Foster, 113. V. Francis, 38. V. Nelson, 167. V. Price, 192. V. Shepherd, 370. V. Waring, 293. V. Williamson, 134. Kingsniill v. Bull, 47. Kingston, Dutchess of. Case, 103. V. M'Intosh, 235. V. Phelps, 116. Kinlock v. Craig, 411. Kinnersley v. Chase, 103. V. Orpe, 55, 100, 435. Kirk V. French, 305. Kirkby v. Hodgson, 442. Kirkmun v. Sliawcross, 408. Kirtland v. Pounsett, 14;), 330. Kirwan v. Cockburn, 111. Knight V. Bennct, 331, 335. V. Crockford, 137, 142. Knight V. Mory, 314. Knill V. Williams, 126. Knovvles v. Horsetail, 439. V. Mitchell, 210. Knox V. Whalley, 220. Koopes V. Chapman, 452. Koster v. Innes, 179. V. James, 184. V. Reed, 184. Krans, ex parte, 374. V. Arnold, 264. Kruger v. Wilcox, 409. Kulen Kemp v. Vigne, 184. L. Lack V. Seward, 277. Laclough V. Fowle, 407. Lacon v. Higgins, 60, 83, 132, 133, 362. Lacy V. Wolcot, 155. Lade v. Holford, 326. V. Sheppard, 379. Lady Dartmouth v. Roberts, 57. Laing v. Barclay, 64. V. Chatham, 251. V. Fidgeon, 45. V. Meader, 264. Lake v. Billers, 378, 485. V. Hundred of Croydon, 504, V. King, 40, 295. V. Smith, 320. Lamb's case, 286. Lambert v. Atkins, 311. V. Hodgson, 387, 392. V. Oakes, 166. Lampon v. Corke, 26, 33. Lanaze v. Palmer, 163. Lane v. Applegate, 299. Lang V. Anderson, 180. Langdale v. Trimmer, 161. Kangdon v. Hulls, 162. V. Wilson, 122. Langfort v. Tiler, 207. Langhorne v. Allnutt, 23. Langmead v. Beard, 454. Langton v. Hughes, 242. Langtour v. Teesdale, 361. Langworthy v. Hackmore, 215. Latham v. Rutley, 44, 278. Latimer v. Batson, 485, 486. Law V. Hodgson, 242. V. Hollingworth, ISl. V. Skinner, 430. Lawrence v. Aberdein, 183. V. Crowder, 415. V. Dixon, 114. V. Hodgson, 196. V. Obee, 266, 268. V. Worrall, 259. Lawson v. Sherwood, 6. Lawton v. Newland, 227. Laxton v. Peat, 172. Layer's Case, 97. Lazarus v. Waithman, 428. Lea V. Libb, 74. Leach v. Buchanan. 153. AXVlll List of Cases cited. Lencli V. Hcvv^jj, IG6. Leader v. Barry, 61, 114, LMI, 247. Leame v. Bray. >i"5, 37(). LeaJi V. Scluiltz, 241. Lcapcr v. Tatton, 260. Lenthcrdalc v. Swcetstone, 26.3. Le Brett v. PapiUon, 239. Ledbetter v. Salt, 27, 415. Lee, ex parte, 417. V. Birrcll, 91. V. Huson, 29o. V. Jones, 196. V. Levi, 171, 239. V. Lopes, 488. V. Meccock, 55. V. Munn, 141. V. Risden, 219, 220, V. Shore, 210. V. Wilson, 200. Leeds v. Burrows, 122. V. Cook, 4, 194. Lees V. Sumniersgill, 75. Leeson v. Holt, 112, 280. V. Piggott, 175. Le Fleming v. Simpson, 82. Leggatt V. Cooper, 32, 300. V. Toller\'ey, 300. Legge V. Benion, 337. V. Thorpe, 163, 173. Le Grose v. Lovemore, 23. Leicester, Ld. v. Walter, 38, 298. Leigh V. Patterson, 209. V. Shepherd, 357. V. Thornton, 147. V. Webb, 300. Le Loir v. Bristovv, 251. Lemayne v. Stanley, 73. Lemon v. Dcane, 66. Lempriere v. Pasley, 411. Lenthail v. Cook, 317. Leonard v. Baker, 486. Leslie v. Pounds, 267, 276. Leeson v. Tomlinson, 166. Lester v. Jenkins, 199. Lethbridge v. Pliillips, 89. Lethullier's case, 10. Levett V. Wilson, 16. Levy V. Baker, 247. V. Barnard, 41 1 . V. Esse.\, 177. V. Herbert, 209. V. Pope, 92. V. Waterhouse, 281- V. Wilson, 150. Lewis V. Clement, 297. V. Cosgrave, 168. V. Jones, 170, 240. V. Lee, 241. V. Peake, 192, 1C3. v. Piercy, 455. V. Price, 16. V. Sapio, 69. V. Walter, 290, 291, 292,297, 298- Lickbarrow v. Mason, 179. Liddlow V. Wibnot, 214. Liebman v. Pooley, 7. liightfbot V. Creed, 226. Like V. Howe, 28. Lindernau v. Desborough, 188. Lindo V. Belisario, 360, 361. V. Unsworth, 161. Lindon v. Hooper, 231. Lingard v. Messiter, 438, 439, 440. Lingham v. Biggs, 440. Lipscombe v. Holmes, 32, 202. Lister v. Priestley, 28. Livesay v. Hood, 441. Lloyd V. Archbowle, 90, 212. V. Ashby, 213. V. Harris, 305. V. Heathcote, 426, 427. V. Johnson, 244. V. Sandilands, 15. V. Maund, 198, 259. V. Wigney, 269. V. Willan, 29. Locke V. Norborne, 100. Lockyer v. Offley, 185, 263. Logan V. Houlditch, 406. Loescham v. Machin, 395. London, City of, v. Clerke, 100. Long V. Baillie, 148. V. Greville, 38. Longchamp v. Fish, 73. V. Kenny, 228. Longdill V. Jones, 489. Longford v. Eyre, 73. Longman v. Tripp, 438. Lopez V. De Tastet, 127. Lotan V. Cross, 375, 376, 377. Lord Barrymore v. Taylor, 26. Lorymer v. Smith, 208. Lothian v. Henderson, 104. Loveden v. Loveden, 362. Lovelace v. Currie, 476. Lovell V. Martin, 404. Loveridge v. Botham, 200. Lowden v. Goodrick, 371. Lowe V. Joliffe, 74, 85, 97. Lowes V. M<3zzaredo, 169. Loweth V. Fothergill, 261. Lowndes v. Bray, 142. Lowthal V. Tomkins, 397. Lowther v. Earl of Radnor, 373. Lowry v. Bourdien, 232. Loyd V. Stretton, 452. Lucas V. Delacooir, 31. V. Dorrien, 440. V. Marsh, 448. V. Novosilieski, 14. Luckow V. Earner, 109. Lugg V. Lugg, 346. Luke V. Hundred of Croydon, 505, Lumley v. Hodgson, 146. Lundie v. Robertson, 159, 164. Luttrell V. Reynell, 96. Luxmore v. Robson, 314. List of Cases cited. XXIX Lygon V. Strutt, 72. Lynch v. Clarke, 61. V. Hamilton, 188. Lynne v. Moody, 308. Lyon V. Weldon, 438. Lyons v. Barnes, 210. M. Maans v. Henderson, 409. Maberley v. Robins, 138. M'Andrew v. Bell, 179. Macarty v. Barrow, 418. Macbeath v. Coates, 414. M'Braine v. Fortune, 85. M'Cloughan v. Clayton, 459. M'Combie v. Davies, 404. M'Craw V. Gentrjr, 66. Macdonald v. Bovington, 170. M'Dougal V. Claridge, 296. M'Doug-all V. Royal Exchange Assurance Company, 185. Mace V. Cadell, 441, 442. M'Gregor v. Lowe, 232. V. Thwaites, 298. Machell v. Kinnear, 156. Macintosh v. Haydon, 126, 159. M'Kenzie v. Fraser, 75. V. Banks, 121. V. Hancock, 192. Maclean v. Dunn, 206, 207. Macleod v. Wakley, 293, 298. Macneil v. Perchard, 483. M'Pherson v. Daniels, 285, 289. V. Thoytes, 69. M'Queen v. Farquhar, 76. Madden v. Kempster, 411. Maddocks v. Hankey, 155. Madox V. Miller, 245. Mainwaring v. Leslie, 215. V. Mytton, 173. Mair v, Glennie, 213, 440, 442. Maitland v. Gouldney, 285, 298. MaJtby V. Christie, 27, 225, 415. Man V. Cary, 61. Manifold v. Pennington, 269. Manley v. Curtis, 72. Mann v. Barrett, 365. V. Forrester, 409. V. Lent, 169. V. Lovejoy, 331. V. Moors, 162. V. Shepherd, 418. Manning v. Clement, 516. Mant V. Mainwaring, 88, 89. Manton v. Moore, 430, 440. Miinvell V. Thompson, 365. Marquis of Stafford v. Coyney, 18. Mara v. Quin, 467. March V.Ward, 238. Margate Pier Company v. Hanman, 481. Margesson v. Noble, 159. Marrable, ex parte, 439. Marriage v. Ijawrence, 113. Marriott v. Hampton, 231. Marryatts v. White, 240. Marsden v. Stansfield, 86. Marsfield v. Marsh, 34, 462. Marsh v. Brace, 319. V. Colnett, 61, 70. V. Home, 52, 279,281. V. Hutchinson, 241. V. Maxv/ell,161. V. Meager, 425. Marshall v. Chambers, 448. V. Cliff, 30, 223. V. Parker, 180, 184. V. Poole, 141. V. Reid, 188. V. Rutton, 241. Martin v. Bell, 483, 484, 498. ex parte, 440. V. Heathcote, 261. V. Henrickson, 37. V. Horrel, 85. V. Morgan, 123. V. Nightingale, 420. v.Podger, 377,485. V. Shoppie, 368. V. Slade, 498. V. Strachan, 324. V. Wender, 200. Mash V. Pedder, 250. V. Smith, 89. Mason v. Keelihg, 384. V. Rumsey, 152. Massey v. Goyder, 134, 266. V. Johnson, 477, 478, 481. Master v. Miller, 125. Masters v. Durrant, 348. V. Police, 382. Mather v. Ney, 363. Matthew v. Sherwell, 437. Matthews v. Sewell, 144. V. West London W. W., 276. Matts V. Hawkins, 382. Maving V. Todd, 278. Mavor, ex parte, 427. V. Pyne, 417. Maugham v. Hubbard, 67, 99^131. v.Walkcr,322, 323. Maunder v. Conyers, 216. V. Vann, 366. Maundrell v. Kennett, 177. * Mawman v. Gillett, 90. Maxwell v. Jameson, 225. May V. Bro^vn,290, 291, 293, 299. V. May, 114. Mayelstone v. Lord Palmerstcn, 50. Mayer v. Nias, 449. Mayfield v. Wadsly, 210. Mayhew v. Eames, 281. V. Lock, 476, 481. Maylin v. Eylde, 424, 425. Mayne v. Fletcher, 289. Mayor of Carlisle v. Blamire, 312. Doncaster v. Day, 5d. Kingston v. Horner, 17. xxx List of Cases died. Mayor of London v. Long, '2S. London v. Mayor of Lynn, 113. Nortliampton v. Ward, 379. Mead v. Daubignj', 2i'3. V. Robinson, 61, 113. Meagoe v. Sinnnons, 133. Medowcroft v. Gregory, 363. Mecke v. O.xlade, 223. Meggott V.Mills, 416. Melcn V. Andrews, 26. Melville's case, 53. Mercer v. Wise, 28. Merceron v. Dowson, 312. Mercers of Shrewsbury v. Hart, 6J ■ Meredith v. Hodges, 239. Meres v. Anscll, 'J. Merest v. Harvey, 385. Merle v. j\Ioore, fJ3. Merrick v. Hundred ofOssulston, 87. Mortens v. Adcock, 207. Merrywcatiicr v. Nixon, 22G. Mersey Navigation v. Douglass, 51. Messing v. Ivemble, 384. Metcalf V. Shaw, 214. Meux v. Howell, 487. Meyer v. Ewerth, 208. Michell v. Lapage, 206. v. Rabbetts, 63. Middleton v. Brewer, 32, 261. v. Fowler, 278. V.Jan vers, 361. V. Javerin, 361. v. Malton, 515.' V. Sandford, 45, 67, 153. Mildmay's case, 9, 472. Miles V. Rose, 14. V. Sherwood, 43. Miller v. Aris, 250. V. Caldwell, 259. V. Forster, 63. V. Henricli, 60. V. Johnson, 39. V. Race, 398. V. Towers, 197,198. V. Williams, 31. Millikin v. Brandon, 420, 421 .. Mills V.Bennett, 427. V. Collett, 482. V. Elton, 426. V. Stafford, 263, V. Spencer, 2.'J8. Milwood V. Walter, 40. Milnes v. Duncan, 230. Milton v. Ed worth, 11. V. Green, 457. Milward v. Forbes, 25. V. Temple, 30. Mitchell V. Cockburn, 227. V. Johnson, 65. Moffat V. Parson, 262. Moir V. Roy, 180. V. Munday, 308. Moises V. Thornton, 54, 292. Moline, ex parte, 160. Mollct V. Brayne, 143. Moneax v. Gorehani, 40 L- 3Ioney v. Leach, 456. IVIonke v. Butler, 52. Moodic V. Reid, 76, Moody V. King, 88, 173. V. Thurston, 109. I\Ioon V. Andrews, 470. Monprivatt v. Smith, 387. Monro v. Do Chemant, 215, Montague v. Benedict, 214. Montrion v. Jefferies, 200, 225. Moore ats. , 38, 298. V. Bartliorp, 431, 444. V. Clemcntson, 253. V. Foley, 11. V. Hill, 236. V. Meagher, 295. V. Fyrke, 226. V. Rawson, 268. V. Voughton, 235. V. Watts, 398. V. Wilson, 48. V. Wiight, 448. Moravia v. Sloper, 40. Morelann v. Benet, 317. Moreton v. Harden, 375, 376.. Morris v. Lee, 167. Morewood v. Wood, 21. Morgan v. Ambrose, 146. V. Bissel, 332. v. Brydges, 483. V. Edwards, 50. V. Horseman, 433. V. Hughes, 373. V. Jones, 236. V. Palmer, 231, 475. v.Prjw, 83,414,451. V. Richardson, 168. Morgan's case, 78. Morish v. Foote, 82, 85. " Morison v. Gray, 401. Morris v. Daubigny, 89. V. Davies, 345. v. Martin, 215. V. Miller, 358, 359. V. Robinson, 338. Morland v. Pcllatt, 489. Morley v. Gaisfbrd, 376. Morse v. Slue, 278. Moser v. Newman,'433. Moses V. Macfcrlan, 107. Moss V. Gallimore, 146. Mostin V. Fabigas, 40. Mouiitrord V. Gibson, 412. ^louutstephen v. Brooke, 42, 149. Mowbray v. Fleming, 197, 258. Mucklow V. Mangles, 396. v. May, 427. Muilman v. D'Equino, 158, 162. Mulgravc v. Ogden, 403. Mul'ler v. Harlsliorn, 33. List of Cases cited. XXXI MuUer v. Moss, 438, 440. Mullet V. Hook, 43, 238. V. Hulton, 239. V. Hutchinson, 122, 131. Munn V. Baker, 112, 280. V. Godbold, 8. Murphy v. Cunningham, 200. Murray v. Earl of Stair, 68. V. Somerville, 238. V, Souter, 289. Muskett V. Drummond, 414, 417. Mussen v. Price, 220, 221. N. Naish V. Tatlock, 144. Nares v. Saxby, 450. Nash V. Palmer, 315. Nathan v. Cohen, 455. Naylor v. Taylor, 187. Neale v. Fay, 113. V. Erving, 30, 177. V. Isaacs, 245. V. Parkin, 26. Neave v. Moss, 146. Nelson v. London Association Company, 438. V. Salvador, 180. V. Wilson, 247. V. Wittall, 65. Nelthorpe v. Darrington, 386, 412. Nesham v. Armstrong, 504, 505. Neville v. Saunders, 326. Newby v. Read, 183. Newell v. Jones, 227. Newham v. Raithby, 114. Newland v. Bell, 420. Newman, ex parte, 454. v. Newman, 15. V. Stretch, 425. Newport v. Hollings, 415. Newsam v. Carr, 301, 304. Newsome v. Coles, 111,212. v. Graham, 231. Newton v. Chantler, 429. Nicholl V. Glennie, 407. Nicholls V. Dowding, 31, 94. V. Parker, 21. Nicholson v. Coghill, 302, 306. Nickson v. Jcpson, 220. Nightingale v. Dcvisme, 228. Nixon V. Jenkins, 405, 347. Noble V. Adams, 3.97. V. Kennoway, 36. Nockells V. Crosby, 229. Nodin V. Murray, 7. Noel V. Robinson, 347. V. Wells, 103. Norden v. Williamson, 83. Norris v. Aylett, 170. V. Hundred of Gawtry, 506. North V. Miles, .30. Northam v. Latouche, 244. Norten v. Miller, 461. Nowell V. Roake, 394. Norwicli Navigation Company v. Theo- bald, 280. Noye V. Reade, 382. Noyes v. Price, 228. Nutt, ex parte, 421.] O. Oakapple, v. Copon, 335. Oakenden, ex parte, 409. Oaldy V. Davis, 391. Oater's case, 111. V. Brydon, 328, 329. Obbard v. Bletham, 168, 416. Odeham v. Smith, 388. Odell V. Wake, 310. Ogle V. Barnes, 375. V. Norcliffe, 40. V. Paleski, 80. Okell V. Smith, 220. Oliver v. Bartlett, 438. Omichund v. Baker, 78, 110. Onslow V. Eames, 192. Oppenlieim v. Russell, 408. Ord V. Portal 156. Orfordv. Cole, 121, 194. Orm V. Young, 131. Orpwood V. Barker, 285. Orr V. Maginnis, 163. V. Morrice, 71. Osborne v. Gough, 476. Oswald V. Leigh, 15. Outhwaite v. Southey, 126. Outram v. Morewood, 21, 23, 100, 102. Owen V. Barrow, 247. v. Woolley, 260. Oxendale v. Wetherell, 211. Oxenham v. Lemon, lb8. Oxlade v. Perchard, 450. P. Paddock v. Fradley, 13. Padget v. Priest, 466. Page v. Cliuck, 355. v. Faucet, 114. V. Mann, 65. v. Newmann, 234. Paine v. Bustin, 310. v, Whittaker, 402. Palethorpe v. Furnish, 31. Palgrave v. Windham, 488. Palmer v. Gooch, 227. V. Lord Aylesbury, 58. Panton v. Jones, 143. Paramour v. Johnson, 239, 319. Pariente v. Plunitree, 492. Parish v. Burwood, 322. Park V. Mears, 67. Parke v. Eliason, 443. Parker v. Atfield, 470. V. Barker, 420. v. Crole, 455. V. Fenn, 491. xxxu List of Cases cited. Parker v. Gillies, 397. V. Godin, 4(i7. V. Iloskins, 65. V. Lci^li, 171. V. M'William, 94. V. Palmer, 43, 203. V. Putrick, 3Lt7. V. Potts, 181. V. Rawlings, 209. V. Stanilaiul, 120, 210, 379. V. Wills, 421. Parkins v. Cobbctt, 4. V. Hawkshaw, 67, 91, 153. Parkinson v. Collier, 11. V. Lee, 191. Parmeter v. Todhunter, 188. Parrey v. Dunoan, 355. Parrott v. Fishwick, 303. Parry v. House, 356. Parsloe v. Wecdon, 474. Parsons v. Blandy, 231. V. Handwick, 468. V. King-, 322. Partington v. Butcher, 260. Parton v. Williams, 456, 458. Partridge v. Coates, 5, 50, 322. Pasmore v. Birnie, 200. Paterson, ex parte, 421. V. Handaere, 167. V. Gundasequi, 216. Patience v. Townly, 159. Patman v. Vaughan, 420. Patten v. Browne, 420. Patterthwaite v. Ducrst, 365, 366. Patteson v. Jones, 293, 295, 296. V. Robinson, 396. Paul V. Bowling, 421. V. Meek, 2, 117. Paull V. Brown, 465. Pawson V. Watson, 180, 183. Paxton V. Popham, 10. Payne v. Cave, 209. V. Rogers, 267, 276. V. Whale, 190. Peaceable v. Reid, 328. Peacock v. Harris, 27, 236. V. Monk, 9. V. Rhodes, 398. Pearce v. Hooper, 71, 515, V. Pemberthy, 175, V.Rogers, 216. V. Whale, 27, 201. Pearson v. Fletcher, 64. V. Henry, 468. V. Hutcheson, 147. v. M'Gowran, 322. Pease v. Hirst, 257. v. Naylor, 470. Pedley v. Wellcsly, 90. Peirse v. Bowles, 265. Pellew V. Inhabitants of Wonford, 502, 504, 505. Penderson v. Stoffles, 84. Pendrell v. Pendreil, 344. Pcnu v. Scholcy, 487, 497. Pennant's case, 341. Penney v. Foy, 251. •- V. Penney, 60. V. Porter, 44. Penruddock's case, 267. Pepper v. Burland, 222. Pcppct V. Hearn, 301. Pcppin V. Solomons:, 180. Pcrcliard v. Whitmore, 190. Pcrcival v. Blake, 220. Perham v. Raynal, 255, 257. Perkins v. Smith, 403, 405. Perring v. Tucker, 134. Perry v. Bouchier, 118. V. Bowers, 435. Peters v. Brown, 258. Peto V. Hague, 29. Petre v. Heneage, 403. Pettit V. Addington, 371. Petty V. Andersbn, 214. Peytoe's case, 239, 240. Peyton v. Governors of St. Thomas's Hos- pital, 30. v. Mayor of London, 266. Pfiel V. Vanbatenberg, 14. Philips V. Astling, 158. v. Barber, 183. V. Janson, 286. V. Pearce, 143,356. Philipson v. Chase, 199. PhiUimore v. Barry, 205, 396. Phillips V. Berryman, 309. V. Bistolli, 217, 218. V. Bury, 190. V. Crutchely, 194. V. Da Costa, 322, V. Eamer, 95, 487. V. Howgate, 387. V. Hunter, 107. V. Roach, 196. V. Shaw, 48. Philpot V. Bryant, 158. V. Dobbinson, 355. Phipps V. Parker, 66. V. Sculthorpe, 142. Phipson V, Knellcr, 165. Pickard v. Bankes, 228. Pickering v. Busk, 191. V. Dowson, 208. V. Noyes, 64. v.Rudd, 34, 391. Pickstock v. Lyster, 471, 487. Pierson v. Dunlop, 151. Pike v. Carter, 373, 374. Pilkington's case, 357. Pillans v. Van Meirop, 151. Pindar v. Wadsworth, 270. Pinero v. Judson, 143, 332, 351. Pinhoin v. Tuckington, 234. Pimm v. Grevill, 357. Pipon V. Cope, 185. Pirie v. Anderson, 1 78. V. Memnet, 448. Pitcher v. Bailey, 227. V. Torey, SIO. List of Cases cited. XXXlli Pitcher v. Tovey, 310. Pitt V. Green, 5U. Pittam V. Foster, 254, 258. Pitton V. Walter, 56, 113. Plate Glass Company v. Meredith, 2G8. Pleasant v. Benson, 336. Plumer's case, 114. Plummer v. Woodburn, 107. Plunkett V. Cobbett, 294. V. Penson, 472. Pocock V. Moore, 459. Poland V. Glyn, 430. Pollard V. Bell, 104. V. Scott, 21. Pomeroy v. Baddeley, 94. Poole V. Bentley, 331, 332. V. Smith, 147. Pope V. Biggs, 357. V. Davis, 323. V. Monk, 415. Poplet V. James, 89. Poplett V. Stockdale, 242. Person V. Barnewell, 182. Port V. Turton, 421. Porthouse v. Parker, 153, 160. Postlethwaite v. Gibson, 458. V. Parkes, 365. Pothonier v. Dawson, 406. Pott V. Turner, 422. Potter V. Brown, 455. V Deboos, 194. V. Ray worth, 167. V. Starkie, 437. Potts V. Durant, 63, 72. Poucher, ex parte, 454. Pougett V. Tompkins, 363. Poulter V. Killingbeck, 210. Poulton V. Laltimore, 220. Pout V. Dowling, 421. Powell V. Drivett, 206. V. Duff, 317. V. Edmunds, 9, 118. V. Farmer, 322. V. Ferrard, 226. V. Ford, 68. V. Gordon, 82. V. Hodgetts, 374. V. How, 490. V. MiUbank, 350. Pratt V. Groom, 391. Prescott, ex parte, 447. Preston v. Butcher, 45. ex parte, 428. V. Jackson, 169. Prestridge v. Woodman, 475. Prettyman v. Lawrence, 386. Price V. Lea, 218. V. Littlewood, 113. V. Lord Torrington, 24. V. Messenger, 457. V. Mitchell, 149. V. Nealc, 230. Price V. Nixon, 221. V. Page, 13. Pricket, ex parte, 197. Prideaux v. Collier, 22, 159, 173. Priddy v. Henbrey, 149. Prince v. Blackburne, 64. Pruig V. Clarkson, 170. V. Henley, 46. Pritchard v. Symonds, 5. V. Walker, 19. Pritchet v. Waldron, 502. Pritt V. Fairclough, 7. Probert v. Knouth, 246. Proctor V. Jones, 219. Protheroe v. Thomas, 197. Proud V. HoEis, 389. Provis V. Reed, 74. Pulling V. Tecker, 430. Purcell V. Macnamara, 48, 51, 301, 302. Pyke V. Croucli, 100. Pyne v. Dor, 402. Q. Quantock v.'England, 417. Queen's case, The, 78, 95, 96. R. Rabett v. Guiney, 450. Rabone v. Williams, 253. Rackstraw v. Imber, 236. Radburn v. Morris, 81. Radcliffe v. Macintosh, 27. Raggett V. Axmore, 172. V. Musgrave, 19. Raikes v. Poreau, 424. Ram V. Langley, 295. Rambert v. Cohen, 1, 27, 98, 116, 131. Ramsbottom's Case, 60. V. Buckhurst, 56, 348. V. Cator, 156. V. Lewis, 424. V. Mortley, 121, 143. V. Tunbridge, 121. RanclifFe, Lord, v. Parsons, 75. Randall v. Gurney, 77. V. Lynch, 32. Randle v. Blackburn, 34. Randolph v. Gordon, 69, 72. Rankin v. Homer, 28, 415. RastaO v. Stratton, 48, 50, Ravee v. Farmer, 101, 115. Raven v. Dunning, 88. Ravenga v. Mackintosh, 303. Rawlins v. Danvers, 317. V. Vandyke, 214, 215. Rawlinson v. Pearson, 422. v. Stone, 155. Rawsonv. Earlc, 201. V. Haigh, 84, 424, 425. V. Johnson, 206, 209. XXXIV List of Cases cited. Ray V. Davios, 43G. Ka3-incr v. (iodniond, 185, Read v. Bonham, IS8. V. (\ioj)er, 435. V. Farr, 341. V. Goldrin^, 262, 264. V. Hutchinson, 210, 250. V. Passer, 114, 344. V. Taylor, 301. Readinir v. Royston, 472. Reardon v. Swaln-y, 127. Rcddie v. Scoult, 368. Redpath v. Roberts, 144. Redsdale v. Newnham, 180. Reed V. Deere, 117. V. Jackson, 101. V. James, 437, 451. Rees V. Bowen, 5S, 304. V. Kin?, 340. V. Lloyd, 17, 33. V. Mansell, 70. v.. Morgan, 355. V. Smith, 132. V. Warwick, 151. Reid V. Batte, 222. V. Clarke, 503. V. Margiston, 54. Remnant v. Breniridge, 146. Rennell v. Wither, 386. Rennie v. Hail, 35. V. Robinson, 143. Revette v. Brown, 379. Rex V. , 360. V. Aicldes, 112. V. Allnutt, 397. V. Amphlitt, 266. V, Anstrey, 67, 76. V. Badcock, 80. V. Baillie, 2.05. V. Barnes, 60. ' V. Barr, 18. V. Beere, 286. V. Bell, 427. V. Bellamy, 54. V. Billinghurst, 363. V. Bingham, 57. V. Bishop of Chester, 118. V. Bramley, 20. V. Bramyton, 360. V. Bray, 84, 85. V. Browne, 17, 56. V. Burdett, 287. V. Burton-upon-Tront, 363. V. Castle Careinion, 7.9. V. Castlemorton, 116. V. Castleton, 4, 7. V. Cator, 70. V. Chillesford, 366. V. Clapliam, 1 15. V. Cold Ashton, 324. V. CoUey, 94. V. Coppard, 48, 43. V. Cotton, 21, 401. Rex V. Creevey, 293, 295. I V. Cross, 266. V. Crosslcy, 112, 292. V. Culpepper, 2. V. Davis, 86. V. Debenham, 23. V. Denio, 4. V. Dutehess of Kingston, 91. V. East Fairley, 4. V. Edwards, !J7. V. Eggington, 444. V. Ellis, 36. V. Eriswell, 350. V. Fisher, 2'.i7. V. Flint, 21)7. V. Ford, 79. V. Franklin, 111. V. Gardner, 28, 111. V. Glossop, 330. V. Gordon, Lord George, 53. V. Grant, 79. V. Grimes, 100. V. Grimswood, 112. V. Grundon, 109. V. Gwyn, 62. V. Hains, 59. V. Hardwick, 28. V. Haslingfield, 76. V. Hartley, 213. V. Hawkins, 19, 52. V. Head, 62. V. Hcbden, 100. V. Hermitage, 46. V. Holding, 97. V. Holt, 111. V. Hooper, 435. V. Hopper, 55. V. Horseley, 398. V. Hube, 2. V. Huggins, 275. V. Hunt, 2, 289. V. Inhabitants of Birmingham, 344. V. Holy 'I'rinity, 1, 13. V. Rawden, 117. V. St. George, 323. V Tibshelt; 517. V. James, 58, 304. V. Johnson, 3/ V. JonifFc, 14. V. King, 61, 296. V. Knight, 62. V. Lee, 297. V. Lloyd, 17. V. Loggan, 464. V. Long Buckley, 136. V. Lutie, 344, 345. V. Lyon, 271. V. Martin, 113. V. Mayor and Corporation of London, 87. V. Merceron, 35. V. Montague, 14. V. Morton, A. List of Cases cited. XXXV Rex V. Mothersill, 6], 113. V. NeU, 267. V. Neville, 25. V. Northfield, 359. V. North Petherton, 115. V. Parker, 96. V. Pearce, 5. V. Pemberton, 323. V. Pendleton, 117. V. Picton, 60. V. Ramsden, 99. V. Rawden, 13. V. Reading-, 87. V. Reeks, 118. V. Ryton, 70. V. St. Faith's, 363. V. St. Paul's, Bedford, 120. V. Scanimonden, 10. V. Simpson, 40. V. Skinner, 295. V. Smith, 54, 59. V. Stoke Golding, 3. V. Stone, 52. V. Stourbridge, 4. V. Sutton, 111. V. Taylor, 78. V. Toddington, 138. V. Tucker, 78. V. Upper Boddington, 64, 91, 92. V. Varlo, 11. V. Veralot, 19. V. Wakefield, 98. V. Wansborough, 122. V. Washbrook, 115. V. Watson, 7, 95, 97, 287. V. Watts, 266. V. Webb, 94. V. Winterdatt, 304. V. Withers, 41, 112. V. Wright, 98, 297. Reynolds v. BeerUng, 251. V. Caswell, 196. V. Chettle, 159, 167. Rhind V. Wilkinson, 179, 182. Rhodes V. Gent, 152, 153. V. Gibbs, 199. V. Thwaites, 219. Ribbans v. Crickett, 33. Rich V. Kneeland, 278. V. Topping, 172. Richards v. Barton, 139, 141, V. Heather, 42. V. Peake, 390. V. Porter, 136, 205. V. Richards, .343. Richardson, ex parte, 438, 439. V. Allan, 97, 173. V. Anderson, 60, 186, 403. V. Bradshaw, 421. V. Brown, 191. V. Campbell, 4 12. V. Hall, 144. Roftcy, ex parte, 41 7. Richardson v. Mellisli, 1 12. Richards v. Murdock, 515. Ricketts v. Salwey, 46, 47, 269. Ridley V. Taylor, 152, 172. Rigg V. Curgenven, 359. Right V. Beard, 325, 332. V. Darby, 333. V. Cuthell, 336. V. Price, 73. Rippener v. Wright, 116. Rivecre v. Bower, 267. Rivers v. Griffith, 265. Roach V. Garran, 106. V. Ostler, 153. V. Wadham, 312. Roberts v. Allatt, 97. V. Bradshaw, 162. V. Camden, 293, V. Fortune, 104. V. Karr, 17, 383. V. Malston, 365. V. Read, 268. V. Wyatt, 401. Robertson v. French, 178. V. Liddcll, 425, 426. Robins v. Gibson, 163. Robinson's case, 100. V. Barnes, 1.55. V. Bland, 169. V. Cook, 202. V. Dunmore, 278. V. Hindman, 203. V. Lyall, 227. V. Macdonnel, 127, 442. V. Mahon, 215. V. Rale3S 389. V. Read, 250. V. Yarrow, 15.3, 154. Robson V. Alexander, 35. V. Andrade, 29. V. Godfrey, 221, 222. V. Kemp, 418, 425. V. Spearman, 477. Roby V. Howard, 132, 133. Roche V. Campbell, 149. Rocher v. Eusher, 227. Rock V. Leighton, 471. Roderguez v. Tadmire, 304- Rodwell V. Ridge, 19. Roe V. Charnock, 333. V. Davis, 2, 4, 330. V. Doe, 333. V. Elliot, 328. V. Ferrars, 35, 105,351. V. Harrison, 313. V. Hayley, 336. V. Horsey, .324. V. Hicks, 347. V. Mindshull, 341. V. Paine, 342. V. Parker, 110. V. Rawlinp, 69. V. Sales, 313. V. WijgK, 336. XX.Wl List of Cases cited. Rogers v. Allen, :23. V. Brooks, 16. V. Clifton, 2;J3, 2DG. V. James, 118. V. Jones, 109, 481, 491. V. Ilsconibe, 304, 307. V. Iinbleton, 375. V. Pitcher, 143, 356. V. Stephens, 163. Rogerson v. Ladbrooke, 252. Rhode V. Proctor, 158, 160. Rohl V. Parr, 183. Rolfe V. Dart, 55. V. Hundred of Elthornc, 504. Rolt V. Wiitson, 250. Romilly v. James, 138. Rondeau v. VV'yatt, 204. Rooth V. Jauney, 31. Roper V. Coombes, 142. Rordasnz v. Leach, 156. Rose V. Blakemorc, 97. V. Bryant, 15. V. Hart, 409, 447. V. Rowcroft, 416, 418. Rosher v. Kiernan, 160. Ross's case, 385. V. Green, 433. V. Hunter, 52, 185. V. Johnson, 279, 403. V. Parker, 49. V. Rowe, 85. Rotherey v. Wood, 489. Rotheroe v. Elton, 82, 189. Routledge v. Grant, 139, 209. V. Thornton, 122. Rowe V. Brenton, 15, 36, 57, 58, 401. V. Grenfel, 15. V. Harrison, 341. V. Ireland, 108. V. Lant, 415. V. Lomas, 260. V. Power, 328. V. Young, 126, 152. Rowlandson, ex parte, 214. Rowley V. Home, 281. Rowntree v. Jacob, 26. Rucker v. Hannav, 260. V. Hiller,"l63. V. Palsgrave, 32, 186. RumbaU v. Ball, 175. Rumsey v. Tafnell, 498. Rusby V. Scarlett, 216. Rush V. Baker, 407. Rushworth v. Craven, 113. V. Hadfield, 408. Russel V. Boheme, 179. V. Corn, 384. V. Dickson, 40. V. Langstaffe, 158. Russen v. Lucas, 459. Rustell V. Macquister, 293. Rutherford v. Evnns, 42, 235, 2;]2. Rutland's, Countess of, case, 412. Ryal V. Rich, 320. Ryder v. Malban, 42. V. Townsend, 263. Rymer v. Cook, 39, 133. Sabin v. Do Burgh, 476. Salmon v. Bensley, 267. V.Ward, 191. V.Watson, 237. Salte V. Thomas, 61, 112, 434. Suloucci V. Woodmas, 104. Sampson v. Burton, 447. V. Cliambers, 503. Sandbach v. Thomas, 307. Sanderson v. Bowes, 149. V. Laforest, 418. Sandom v. Bourne, 197. Sands v. Ledger, 44, 318. Sangster v. Mazzaredo, 153. Sapsford v. Fletcher, 356. Sarch v. Blackburn, 276. SareU v. Wine, 248, 465. Sargent v. Morris, 401. Sargeant, ex parte, 443. Sarquy v. Hobson, 183. Saunders v. Darling, 495. v. Graham, 262. V. Mills, 299. V. Musgrove, 355, 448. 's case, 347. Saunderson v. Griffiths, 44. V. Jackson, 137. V. Judge, 161. Savage v. Aldren, 254. V.Smith, 498. Savill V. Burchard, 409. Say and Sele v. Jones, 326. Sayer v. Kitchen, 6. v. Garnett, 518. Scaife v. Howard, 414, 417. Schlencker v. Moxsy, 315. Schmoling v. Tomlinson,224. Scheider v. Norris, 137. Scholey V. Walsby, 130, 157. Schooling v. Lee, 426. Schrimshire v. Schrhnshire, 262. Schumack v. Lock, 30. Scilly V. Dalley, 318. Scorrell v. Boxall, 120. Scott V. Allsop, 127. V. Clare, 2. V. Franklin, 435. V. Gilmore, 169, 243. V. Jones, 4. V. Liftbrd, 161. V. Sherman, 104. V. Surman, 442. V. Waithman, 71, 495, '&6. Scrace v. Whittington, 201. Scurfield v. Gowlaiid, 229. Seago V. Deane, 9. Sealey v. Sutherland, 369. List of Cases cited. XXXV 11 Seaman v. Price, 45, ex parte, 417. Searle v. Lord Barrington, 15. V. Keeves, 219. V. Lyons, 385. Seafx)n v. Benedict, 32. Sedden v. Tutop, 101. Selby V. Eden, 149, 152. V. Harris, 57. Sellen v. Norman, 14. SeUers v. Till, 231, 293. Sells V. Hoare, 78. Selway v. HoUoway, 279. Senat v. Potter, 190. Senior v. Armitage, llv Sentance v. Pool, 247. Sergeson v. Sealy, 108. Seton V. Slade, 137. Severin v. Keppell, 404. SeweU V. Stubbs, 93. Shadwell v. Hutchinson, 265. Shaftesbury, Earl of, v. Russell, 440. Shapland v. Smitli, 326. Sharp V. Baily, 164. Shaw V. Broom, 168. V. Harvey, 417. V. Markham, 162. V. Preton, 27. V. Staughton, 463. V. Williams, 444. V. Wrigley, 51. Sheldon v. Cox, 210. V. Whittaker, 49. Shelly's case, 468. Shepherd v. Bliss, 291. V. Chewter, 187. V. Johnson, 209. V. Shorthose, 60. Sheape v. Culpepper, 355. Shew V. Thomson, 427. Sherriffv. Wilks, 152. Sherwin v. Smith, 202. Shillitoe v. Claridge, 192. Shipman v. Thompson, 253. Shipton V. Casson, 211. Shipwreck v. Blanshard, 407. Shires v. Glassock, 74. Shirman v. Bennett, 203. Shore v. Webb, 229. Short V. Edwards, 39. V. M'Carthy, 254. Shrewsbury's (Lady) case, 380. Shutev. Robins, 158. Shuttleworth, ex parte, 417. V. Bravo, 451. V. Stephens, 85, 151, 173,177. Sibly V. Gumming, 323. Sidfbrd v. Chambers, 154. Siffkin V. Walker, 150. Sigoumey v. Lloyd, 156. Sikes V. Marshall, 24. Sills V. Laing, 227. Silver v. Heseltine, 44. Simmons v. Knight, 415. F Simmons v.Wilmott, 264. V. Smith, 87, 89, 207. V. Swift, 211, 396. Simon v. Motives, 141. Simpson v. Henderson, 10. V. Hill, 459. V. Ingham, 248. V. Smith, S5. Sinclair v. Bowles, 225. v.Eldred, 306,307. v. Frazer, 107. V. Stevenson, 99, 438, 452. Singleton v. Butler, 432, 433. Sippora v. Bassett, 384. Six Carpenters' case, 357, 384. Skaife v. Jackson, 26. Skeltonv. Hawling, 471. Skinner v. Stocks, 43, 90. V. Upshaw, 405. Skrine V.Elmore, 120, 191. Slack V. Buchanan, 25. Slackford v. Austin, 493. Slade's case, 101. Slater v. Lawson, 516. Slatter v. Lafitte, 164. Slert v. Fagg, 281. Sloman v. Heme, 490. Slipper v. Slidstone, 253. Sly V. Edgley, 276. Smallcombe v. Bridges, 418, 425. Smarth v. Williams, 72. Smith v. Allison, 364. V. Beadwell, 35. v. Bellamy, 175. V. Blacldiam, 350. V. Blandy, 35. V. Bolton, 505, 506. V. Buchanan, 450. V. Buckmore, 232. V. Carey, 293. V. Cater, 120. V. Chance, 211. V. Chester, 153. V. Clarke, 138, 148, 156, V. Currie, 428. V. Davis, 468. V. De Wrutz, 26, 168. V. Evans, 73. V. Perrand, 249. v. Feverall, 270. v. Forty, 286. v. Johnson, 115. v. Kelly, 130. V. Kemp, 380. V. Knox, 168, 171. v. Lyon, 28. v. M'Clure, 148. v. Macdonald, 304. V. Maxwell, 360. V. Mercer, 230. V. Mingay, 125. V. Milles, 377, 379. V. Missen, 226. V. Moon, 427. XXVlll List of Cases cited. Smith V. Mullett, 161. V. Payne, 431. V. Polali, 275. V. Pickering-, 155, •444 V. Plomer, 402. V. Prager, 81. V. Kaleiofli, 146. V. Richardson, 238. V. Russell, Am. V. Scott, 183. V. Sparrow, 243. V, Surman, 120, 136, 204, 210. V. Taylor, 27, 516. V. Thatcher, 164. V.Watson, 213. V. Wattlesworth, 198. V. Wiltshire, 458. V. Wood, 286. V. Wooodward, 310. V. Young, 1, 405, 406. Smy V. June, 328. Snell V. Snell, 50. Snook V. Mears, 259. Snow V. Allen, 303. V. Leatham, 399. V. Peacock, 399, 400. V. Philips, 105. V. Sadler, 399. SoEUTies V. Watts, 434. Soane v. Knight, 298. Soares v. Thornton, 185. Solomon v. Turner, 168. Solomons v . Dawes, 405. Somerset, Duke of, v. France, 36, 505. V. Himd. of Mere, 504, 505. Soulsby V. Neving, 321. South Carolina Bank v. Case, 213. Southerwood v. Ranisden, 367. Spain V. Arnott, 203. Spargo V. Brown, 19. Spawforth v. Alexander, 130. Spears v. Hartley, 408, 412. Speight V. Olivciro, 366. Spencer v. Billing, 426. V. Goulding, 85. V. Jacob, 307. V. Smith, 243. Spencely v. de Willott, 95. Speeres v. Parker, 52. Spilsbury v. Micklethwaite, 41 , 387. Spooner v. Brewster, 382. V. Gardiner, 164, 167. Spratt V. Hobhouse, 228, 446. Sproule V. Legge, 45, 149, 150. Squier v. Price, 209. Squire V. Todd, 140. St. Leger v. Adams, 72. Stackpole v. Simon, lb8. Stacy V. Decy, 253. Stafford V. Ciarkp, 32, 102, 106, 415. Staight V. Gee, 459. Stainer v. Burgesses of Droitwich, 114- Stammers v. Dixon, 11. Stanhope v. Baldwin, 363. Stanley v. White, 37. Stansfield v. Levy, 133. Stante v. Prickett, 369. Stanway v. Perry, 322. Staples V. Okines, 173. Stead V. Liddard, 1 18. Stears v. Smith, 476. Stedman v. Gooch, 162,250. Steel V. Brown, 485. V. Prickett, 381, Steele v. Mart, 10. Steinman v. Magnus, 240. Stephens v. Elwal, 407. V. Sole, 438. Sternhold v. Holden, 404. Stevens, ex parte, 422. V. Elizee, 454. V. Jackson, 246, 434. V. Lloyd, 126. V. Lynch, 171, 173. V. Penney, 8. V. Thacker, 29. Stevenson v. Blakelock, 409, 411. V. Hart, 279, 403. Stewart v. Kennett, 160. Stiles V. Nokes, 297. Still V. Halford, 76, 195. Stocker v. Berney, 324. Stockfleth v. De Tastet, 35. Stoddart v. Palmer, 48. Stokes v. Bate, 462. v. Cooper, 146. V. Lewis, 226. V. Moore, 137. V. Turtchin, 232. Stone V. Bale, 10. Stonelake v. Babb, 128. Stonehouse v. Da Sylva, 436- V. Elliot, 374. V. Evelyn, 73. Store V. Benthall, 183. Storer v. Hiuiter, 438. Storr V Crowley, 279. Story V. Atkins, 227. Stottv. Stott,388. Stoveld v. Brewer, 32. Strange v. Wigney, 400. Stranger v. Searle, 68, 70. Stratton v. Rastall, 26. Streatfield v. Halliday, 435. Street v. Tugwell, 266. Streeter v. Horlock, 221. Strickland v. Ward, 476, 480, 481, Stringer v. Martyr, 482. Strong v. Hart, 250. V. Har\'ey, 262, 264- Strother v. Barr, 13, 266. Strutt V. Bovingdon, 100. Stuart V. Lovell, 294. V. WhittAker, 496. Stubbing v. Ileintz, 216. List of Cases cited. xxxix Studdy V. Sanders, 210, 216, 221. Sturges V. Derrick, 165. Sturt V. M. of Blandford, 364. Stoyles V. Pearson, 311. Summersett v. Jarvis, 403, 420. Surtees v. Ellison, 420. Sutton Coldfield v. WUton. 87. Sutton, ex parte, 417. V. Bishop, 323. V, Buck, 401. V. Clarke, 268. V. Toomer, 117. V. Waite, 495. V. Wheely, 421. Syeds v. Hay, 403. Sykes v. Burkitt, 330. V. Dunbar, 302, 303. Syllivan v. Stradling-, 142, 356. Sylvester v. Hall, 132. Symonds v. Carr, 191. Swallow V. Beaumont, 49. Swan V. Cox, 151. V. Earl of Falmoutli, 309. V. Fox, 314. V. SoweU, 260. V. Steele, 152. Swa3me v. Wallinger, 417. Sweet V. Pym, 411. Sweeting v. Halse, 117. Swinford v.'Burn, 234. Swinnerton v. M. of Stafford, 63. Swinyard v. Bowes, 249. Swire v. Bell, 65. T. Tabart v. Tipper, 285, 286, 298. Tait V. Levi, 181. Talbot V. Hodgson, 66, 67. Talon V. West, 210, 219. Tarmer v. Bean, 166, 176. V. Smart, 261. Taplin v. Atty, 5, 483. Tappendall v. Randall,,141, 232. Tarling v. Baxter, 395. Tarleton v. Tarleton, 106. Tassel v. Lewis, 158. Tate V. Humphrey, 293. Taunton v. Wyborn, 359. Taylor v. Beal, 318. V. Brewer, 222. V. Briggs, 10, 250. V. Clow, 517. V. Cole, 20, 105, 387. V. Cooke, 69. V. Crokcr, 153, 155. V. Fenwick, 476. V. Fisher, 390. V. Foster, 91. V. Glassbrook, 200. V. Higgins, 225. V. Hooman, 145, 383. V. Horde, .324, 351. V. Jones, 159. Taylor v. Kinlock, 416. V. M'Viccar, 190. V. Plumer, 442, 444. V. Robinson, 411. V. Shum, 310. V. Smith, 392. V. Welsford, 453. V. Willans, 145. V. Zamira, 356. Teal V. Auty, 236. Tealby v. Gascoyne, 484. Teed V. Martin, 7. Teesdale v. Clement, 290. Tempany v. Burnand, 49. Tempest v. Chambers, 47. V. Fitzgerald, 217. Templer v. M'Lachlan, 200. Tennant v. Elliott, 232. Tennant v. Strachan, 405. Terry v. Huntingdon, 480. Thackray v.'Blackett, 164, 165. Thackthwaite v. Cook, 438, 441. Thelasson v. Cosling, 112. V. Fergusson, 180. V. Sheddon, 187. Thistlewood v. Crawcroft, 232, 322. Thomason v. Frere, 156. Thomas v. Cook, 144. V. Evans, 263. V. Foyle, 178. v. Newton, 97, 167. v. Pearse, 497. v. Popham, 435. V. Thomas, 335. Thompson v. Briggs, 445. V. Brown, 249. V. Farmer, 410. V. Freeman, 431. V. Giles, 443. V. Harvey, 214. V. Lacy, 409. V. Lewis, 202. V. Maberley, 331. v. Maceroni, 211, 218. V. Miles, 138. v. Morgan, 153, 156, 157. v. Osborn, 261. V. Rock, 311, 317. V. Shackle, 298. V. Shirley, 406. V. Trail, 405. V. Trevanion, 22. V. Whitmore, 183. v. Wilson, 144. Thomson v. Austin, 34. V. Davenport, 216. ' v. Donaldson, 103. Thornton v. Hargreaves, 432. v. Illingworth, 237, 246. v. Jones, 44. v. Mcux, 206. V. Roy, 181. v. Royal Exchange Ass. Co , 98. Thorpe v. Booth, 254. xl List of Cases cited. Tliorpe V. Cooper, 101, 115. V. Gisburne, 69. Thorouffhgood's case, 311. Thunder v. lielcher, 34S. Thurll V. Madeson, 72. Thwaitc v. Mackerson, 197. Thy line v. Protheroe, 34, 117, 119, 462. Tilk V. Parsons, 294. Tilncy v. Norris, 312. Timmins v. Rowlinson, 321, 333, 336. Tmdall V. Browne, 160. Tinsley v. Nassau, 373. Todd V. Hogrgart, 140, 142. V. Stokc-s, 214. V. Lord W inchelsea, 74. Tolputt V. Wells, 471. Tomkhis v. Ashby, 34, 131. Tomkinson v. Russel, 379. Tomlinson v. Day, 146. V. Wilkes, 453. Tompson v. Hart, 470. Tongue v. Pitcher, 319. Tooke V. Hollingworth, 444. Tooker v. Duke of Beaufort, 54, 108. Tope V. Hockin, 428. Topham v. Braddick, 15. V. Dent, 378. Toosey v. Williams, 7. Toovey v. Milne, 444. Toussiant v. Hartop, 439. Tovey v. Palmer, 322, 323. Towers v. Barrett, 190. V. Osborne, 204. TowTisend v. Champernown, 327. V. Neale, 224. V. Pearce, 346. Townson v. Tickel, 310. Towne v. Lady Gresley, 201. Travis v. Clialoner, 100. Treacher v. Hinton, 152. Tregany v. Fletcher, 40. Tregothick v. Edwin, 149. Trelawny v. C'olemau, 91, 362. V. Thomas, 84, 235. Treport's case, 325. Trevillian v. Pine, 357. Tribe v. Webber, 433. Trimley v. Unwin, 414. Tripe v. Potter, 375. Tripp V. Thomas, 294. Trotman v. Dunn, 203. Trowel v. Castle, 57. Trueman v. Hurst, 236. Truslove v. Burton, 30. Trustees of Rugby Charity v. Merry. weather, 18. Tucker v. Barrow, 35, 40, 235, 433, 435, 445. V. Cracklin, 51, 278. V. Jones, 426. Tull V. Parlett, 10. Tulledge v. Wade, 366, 367, 372. Tullock V. Dunn, 2.5R Tullock V. Handley, 465. Turner v. Beaurain, 137, 141. V. Eyles, 312. V. Hawkins, 375. V. Hayden, 152, 159. V. Leach, 161. V. Meymott, 385. V. Pearte, 80. V. Power, 136. V. Richardson, 313. V. Tresby, 245. V. Turner, 302. Tuson V. Batting, 202. I'wemlow V. Oswin, 184. Twyne's case, 485. Tye V. Tynmure, 207. Tyler v. Duke of Leeds, 497. Tyrrel's case, 325. Tyrwhit v. Wynn, 37, 343. Tyte V. Jones, 116. U. Uncle V. Watson, 24, 343. Underbill v. Durham, 108. V. Witts, 113. Underwood v. Hewson, 368, 375. V. Parks, 298. Upsdell V. Stewart, 224. Upston V. Stark, 278. Upton V. Curtis, 358. Vacher v. Cocks, 22, 515. Valentine v. Vaughan^ 420. VaiUant v. Dodemead, 93. Vallego V. Wheeler, 185. Vanderwall v. TyrreU, 226. Vandyke v. Hewett, 23. Van Umeron v. Dowick, 40, 182. Van Wart v. WoUey, 30. Vaughan v. Davis, 378. V. Fuller, 153. Vavasour v. Ormrod, 49, 318. Vaylor v. Mangles, 408. Venning v. Leckie, 120. V. Shuttleworth, 177. Verany v. Warne, 222. Vere v. Lewis, 157. Vernon v. Boverie, 249. V. Hankey, 424. V. Hanson, 437. V. Keys, 138. Vicars v. Wilcock, 294. Vide V. Lady Anson, 6. Vilhers v. Beaumont, 10. Vincent v. Cole, 222. V. Staymaker, 198. Viiier v. Cadell, 439, 442. Viney v. Barss, 36. Vooght V. Winch, 102. List of Cases cited. xli Vowels V. Young, 20. Vowles V. Miller, 382. Voyce V. Voyce, 383. W. Waddington v. Bristow, 120. V. Francis, 118. Wade v.Beasley, 38,175. Wadeson v. Smith, 199. Wadsworth v. Hampshaw, 92. Waitham v. Wakefield, 214. V. Weaver, 298. Wakeman v. Robinson, 368. Wakley v. Johnson, 299. Waldron v. Combe, 107. Walford v. D. de Prenne, 241. Walker's case, 310. V. Barnes, 234. , V. Constable, 139,141. V. Dixon, 211. V. Laing, 437. V. Markland, 183. V. Moore, 515. V. Seaborne, 240. V. Wildman, 92. V. Witter, 107. Wallace v. Hardaere, 155. V. King, 407. V. Small, 25. V. Woodgate, 409, 411. V. Atcheson, 146. v.Horsfall,8. Wallis V. Alpine, 302. Walls V. Atcheson, 144. Walpole V. Pulteney, 171. Walridge v. Kennison, 25, 174. Walsh V. Pemberton, 318. Walter v. Haynes, 161. Walters V Mace, 285. V. Pfiel, 266, 464. Walton V. Hastings, 126. V. Kersop, 354. ' V. Green, 31. V. Shelley, 82, 84. Walwyn v. St. Quintin, 171. Ward V. Andrews, 377. V. Evans, 249. V. Felton, 412. V. Haydon, 89. V. Hunt, 258. V. Macauley, 377. V. Mason, 143. V.Smith, 37, 318. V. Wilkinson, 84. Wardall v. Smith, 485, V. Farmer, 65. V. Mourellian, 278. Waring v. Cox, 401. V. Hoggart, 139, 142. Warne v. C^hadwclj, 294. v. Terry, 304. Warner v. Barbrr, 424. Warren v. (Junningham, 19R. Warrington v. Furb(,r, 120. Warwick v. Bruce, 120, 193. v. Noakes, 248. Waterman v. Soper, 382. Waterhouse v. Skinner, 209. Waters v. Brogden, 123. Watkins v. Birch, 486. v. Hewlett, 131, 229. v. Robb, 262. V. Vince, 30. v.Wolley, 405.. Watson V. Clark, 181. V. Christie, 372. V.King, 18, 34, 181, 463. V. Reynolds, 299. V. Threlkeld,215. V. Wace, 415. Watt V. CoUins, 197. Watts V. Agnell, 318. V. Lawson, 25. V. Thorpe, 418. Wayman v. Bend, 154, 156, 176 v.Hilliard, 516. Weatherstone v. Hawkins, 295 Weaver v. Bush, 371. V. Chfford, 494. v. Ward, 368, 373. Webb v. Heme, 491. v. Hill, 42,301,305. V. Plummer, 11. V. Pritchett, 199. V. Smith, 29. Webber v. Nicholas, 307. V. Venn, 251. Wedger v. Browning, 415. Weedon v. Timbrell, 363, 364. Weeksv. Sparke, 20, 21. Weir v. Aberdeen, 128, 180, 182. Welcker v. Le Pelletier, 237,239. Weld V. Crawford, 197. Weldon v. Bridgwater, 379. V. Gould, 408. Welford v. Beasley, 137. Well V. M'Cormick, 196. Weller v. Governors of F. H., 87. Wells V. Girling, 156. V. WiUiams, 111. Welsh V. Myers, 312. V. Nash, 378, 387, 480. V. Seaborne, 227. West Middlesex W. W. v. Tenverkropp, 120. Westley's case, 493. Weston V. (barter, 354. V. Dobneit, 295. V. Fames, 178. V. Fournier, 477. Westwood V. Cowrie, 37. Wey V. Yally, 40. Weyland's case, 216. Whalley v. l^ancred, 328. Whalley v. Tompson, 388. Wharem v. Routledge, 6, 421. Wharton t. Ijcwis, 195. V. Walker, 233. Wheeler r. Brainah, 313. xlii List of Cases cited. Wheeler v. Collier, 136, 137, 242. Wheelright v. Jackson, 4^11. WlicUer V. Toko, -175. Whelpdalc's case, 311. Whitakcr v. Izod, 64. Whitcombc v. Whiting, 257. White V. Gainer, 405. V. Jones, 491. V. Parker, 9. V. Sayer, 11. Whiteacre v. Synionds, 339. Whiteconibe v. Jacob, 442. Squier, 412. Whitehead v. Clifford, 143, 144, 146. V. Vaugfhan, 411. Whitehouse v. Atkinson, 83. Whitelocke v. Baker, 19, 20. Whitlock V. Underwood, 13. Whitmore v. Wilks, 87. Whitnash v. George, 24. Whittington v. Gladwin, 292. Whittle V. Oldaker, 317. Whitwell V. Burnett, 148. V. Thompson, 430. Whitworth v. Crockett, 120. Wickes V. Clutterbuck, 109, 481. V. Fentham, 301. V. Gogerly, 169. Wiebe v. Simpson, 187. Wightman v. Townroe, 213. Wightwick V. Banks, 55. Wigglesworth v. Dallison, 11. Wigley V. Jones, 491. Wihen v.Law, 20, 115. Wild V. Hornby, 11. Wildbore v. Bryan, 199. Wilde V. Forte, 138, 141. Wildman v. Glossop, 44. Wilds V. Gaslight Company, 277. Wilks V. Atkinson, 120, 206. Wilkes V. Bridger, 373. V. Jacks, 166. Wilkinson v. CoUey, 320. V. Digg;eU, 201. V. Frazier, 213. V. Howel, 306. V. Johnson, 230. V. King, 395, 397. V. Lutwidge, 151. Wilks V. Atkinson, 120, 209. Willans v. Taylor, 302, 303. Willen V. Roberts, 168. Williams v. Barber, 199. V. Bosanquet, 312. V. Bridges, 491. V. Burgess, 461. V. Causton, 279. V. East India Company, 52. V. Gorges, 15. V. Hedley, 232.. V. Innes, 468. V. Jones, 455. V. Johnson, 00. V. Keats, 1 72. WiUiams v. Mundy, 92. V. Manning, 3. V. Nunn, 424. V. Odcll, 198. V. Paul, 243. V. Rawlinson, 127, 249. V. Sills, 33. V. S.iiith, 161. V. Stevens, 452. V. Thomas, l33, 353 . V. Waring, 149. V. Williams, 362, 402 V. Younghusband, 4. Williamson v. Allison, 35, 192. V. Watts, 246. Willies V. Farley, 487. Wilhs V. Barrett, 46, 148. V. Ward, 269. Willoughby^. Backhouse, 12, 309, 310. Wihnot V. Horton, 504, 505. V.Smith, 219,248,262. V. Wilkinson, 138. Wilson V. Abbott, 333. V. Anderton, 518. V. Clark, 145. V. Coupland, 233. V. Day, 429. V. Gutteridge, 197. V. Hart, 9. V. Kemp, 455. V. Kennedy, 175. V. Knubley, 474. V. Kymer, 412. V. Mackreth, 379, 380. V. Mitchell, 241. V. Norman, 425, 426, 489. V. Peto,267. V. Rastal, 92, 93. V. Swabey, 160. Wilton V. Gerdlestone, 404. Wimbish v. Tailbois, 33. Winch V. Keeley, 444. Winchester's, Marquis of, case, 345. Windham v. Paterson, 424. Windle v. Andrews, 163. Wmgfield v. Seekford, 319. Winsorv. Pratt, 73, 346. Winter v. Brockwell, 268. v. Payne, 197. Winterbottom v. Morgan, 384. Winterstoke, Hund. case, 502. Win tie v. Crowther, 515. Wiseman v. Cotton, 40. Witchcot V. Livesey, 315. Withall V. Masterman, 171. Witnell V. Gartham, 11,21. Wittersheim v. Carlisle, .254. Wiltzie V. Adamson, 219. Wolf V. Summers, 409. Woolley V. Brownbill, 14. Wood V. Akers, 253. V. Eradick, 31. V. Brown, 164. V. Drurv, 64. List of Cases cited. xliu Wood V. FolHott, 461. V. Roberts, 240. V. Smitli, 191. V. Veal, 18. Woodbridge v. Spooner, 9. Woodgate v. Knatchbull, 498. Woodier's case, 424. VVoodley v. Brown, 113. Woods V. Russell, 396. Woodward v. Booth, 51, 278. V. Larking, 33, 483. Woody er v. Hadden, 18. Wookey v. Pole, 398. Wooldridge v. Wooldridge, 199. WooUey v. Clark, 398, 412, 465. Woolston V. Scott, 360. Wormall v. Young, 497. Worrall v. Jones, 515. Worseley v. Demaltos, 429. Worthington v. Barlow, 76, 468. Wright V. Bird, 420. V. Campbell, 179. V. Court, 374. V. Dannah, 137. V. Horton, 476. V. Laing, 249. V. Paulin, 88. V. Rattray, 271. V. Read, 263. V. Riley, 119. V. Shawcross, 130. V. Smith, 321. V. Snell, 408. V. Trevezar, 331. Wright V. Wakcford, 75. Wrottesley v. Bendish, 106. Wyattv. Bidmer, 168. V. Campbell, 169. V. Gore, 97, 286. V. Wilkinson, 450. Wych V. Meal, 106. Wydown's case, 434. Wyndham v. Lord Wycombe, 364. Wynne v. Raikes, 151. V. Tyrvvhitt, 24, 70. Ximens v. Jacques, 128. Y. Yabsley v. Doble, v. 30. Yate V. WiUan, 32. Yates V. Bohen, 311. V. Pyne,ll. Yea V. Fourake, 259. York V. Blott, 177. V. Greenaugh, 405, 409. Yotmg V. Bainer, 89. V. Timins, 414. V.Wright, 30, 51. Yrisarri v. Clement, 291. Zenobio v. Axtell, 285. A DIGEST, &c. In forming a digest of the general rules of evidence, the subject may- be considered, first, with regard to the native of evidence ; second- ly, with regard to the object of evidence ; thirdly, with regard to the instruments of evidence ; and, fourthly, with regard to the ejfect of evidence. With regard to its nature, evidence may be considered under the following heads. Primary or secondary evidence ; presumptive evidence ; hearsay ; admissions. PRIMARY EVIDENCE. It is a general rule, that tbe best evidence must be given that the nature of the case admits. B. JV. P. 293. I'hus where a will of lands is to be proved, the primary evidence of it is the will itself, and neither an exemplification of it, nor the probate is admissible. Id. 2iQ,post. So in general where a contract has been reduced into writing, and been signed by the parties, the writing is the best evidence of it, and must be produced. Fide post, p. 8. But it is not in every case necessary, where the matter to be proved has been committed to writing, that the writing should be produced. If the narrative of a fact to be proved, has been committed to writing, it may yet be proved by parol evidence. Upon this principle, a re- ceipt for money will not exclude parol evidence of the payment. Rambert v. Cohen, 4 Esp. 213, post. So where, in trover, to prove the demand, the witness stated that he had verbally required the defendant to deliver up the property, and at the same time served upon him a notice in writing to the same eftect. Lord Ellenborough ruled that it was not necessary that the writing should be produced. Smith V. Young, 1 Camp. 439! So where the fact to be proved is, that certain persons stood in the relation of landlord and tenant, it was held that although there was a written contract, the fact of the tenancy might be proved by parol. R. v. Inhab. of Holy Trinity. 7 B. and C. Gl 1 ," post, p. 1 3. "^So, although there exists a deed of part- nership may be proved by the acts of the parties; but, when, in order to prove a partnership between Didotand Foudrinier, whose assignees were parties to the suit, a witness was a?iked, whether he had not heard Foudrinier say, that by a deed between him and > 14 Eng. Com. Law Reps. 101. 1 2 Secondary Evidence. Didot, an interest belonged to Didot, Abbott, C. J. was clearly of opi- nion that no question could be asked as to what Foudrinier had said of the contents of a written instrument, without the production of the instrument, or an acccunt of its non-production. Bloxam v. Elsie, R. and M. 187. Where it is necessary to prove the fact of a n>ar- riage, the entry in the parish register is not superior evidence, but the fact may be proved by the testimony of persons who were pre- sent, and witnessed the ceremony. Vide post. So the inscriptions and devices on banners displayed at a public meeting may be proved by parol, and it is not necessary to produce the banners themselves. A*. V. Hunt, 3 B. and .I. 566." The primary evidence of all judicial proceedings, is the produc- tion of the proceedings themselves, or of examined copies of them. Vide post. Thus parol evidence is not admissible of the day on which a cause came on to be tried, as it is capable of proof by mat- ter of record. Ansleij v. Smith, C Esp. 80. R. v. Page, Id. 83. And where to prove that the plaintiff had been discharged under the in- solvent act, it was proposed to give in evidence his admission to that effect, Lord EUenborough held it insufficient, and said that to prove a judicial act of this sort, it was necessary to call the clerk of the peace, and to give in evidence the order of the court of quarter ses- sion by which the discharge was effected. Scott v. Clare, 3 Campb. 236. So parol evidence is not admissible to prove the taking of oaths required by the Toleration Act, as it will appear by the re- cords of the court where the oaths were taken. R. v. Hube, Peake, JV. P. C. 131. The counterpart of a deed is not secondary evidence, but is ad- missible as original evidence against the party executing it and those claiming under him ; Burleigh v. Stibbs, 4 T. R. 465. Roe v. DaviSy 7 East. 363 ; and he will not be permitted to object that the origi- nal was not properly stamped. Paul v. Meek, 2 Y. and J. 116. SECONDARY EVIDENCE. It is a general rule, as already stated, that the best evidence must be given of which the nature of the case is capable. B. JV. P. 293. Secondary evidence is therefore inadmissible, unless some ground be previously laid for its introduction by showing the impossibility ot procuring belter evidence. What ground must be laid for the introduction of secondary evi- dence.'] Before secondary evidence can be admitted, it must be proved that better evidence cannot be obtained. Thus in the case of a lost deed, after proof of its due execution, R. v. Culpepper, Skin. 073, the loss of the deed must be proved, and if two or more parts have been executed, the loss or destruction of all the parts should, * 5 £ng. Com. Law Reps. 377. Secondary Evidence. 3 it seems, be proved before other evidence can be received. B. JV. P. 254. See Doxon v. Haigh, 1 Esp. 409. Where the instrument is in the possession of the opposite party, parol evidence of its con- tents cannot be given without proof of the service of a notice to produce it. See post, p. 4. All the proper sources from which the primary evidence can be procured must be exhausted, before se- condary evidence can be admitted. Thus the party who has the legal custody of an instrument must be applied to before parol evi- dence can be received. R. v. Stohe GohUng, 1 B. and A. 173. So where a letter, which had been in the possession of the defendant, was filed in the court of chancery, pursuant to an order in that court, it was ruled, that secondary evidence of it was not admissi- ble, it being in the power of either party to produce it on applica- tion to the court. Williams v. Munning, R. and M. 18. Where secondary evidence is oflfered, in consequence of the loss of the primary evidence, it must be shown, in order to establish the loss, that diligent search has been made in those quarters from which the primary evidence was likely to be procured. Where the publisher of a paper, in which a libel had appeared, stated, that he believed the original was either destroyed or lost, having been thrown aside as useless, this was held sufficient to let in secondary evidence. R. v. Johnson, 7 East, 66. So where a license to trade had been returned to the secretary of the governor who had grant- ed it, and the secretary swore that it was his custom to destroy or put aside such licenses amongst the waste paper of his office as of no further use ; and that he supposed he had disposed of the license in question in the same manner as other licenses ; and that he had searched for it but did not recollect whether he found it or not, though he did not think he had found it, the court held the loss suf- ficiently proved. Kensington v. Inglis, 8 East, 278. So where it became necessary to account for the non-production of a policy, and it was proved that it had been etfected about seven years before, and having become useless on account of a second policy being ef- fected, it had probably been returned to the plau»titf,and the clerk of the plaintiff's attorney a few days before the trial of the action, isearched for it in the plaintiff's house, not only in every place point- ed out by the plaintiff, but in every place which he thought Uke- ly to contain a paper of this description, the search was held to be sufficient. Brewster v. Seicel/, 3 B. and A. 296.-= So in a settlement case, where it was proved, that one part only of an indenture had been executed, that the pauper and master were both dead at the time of trial, and that an inquiry for it had been made of the pauper shortly before his death, who said, that the indenture had been given up to him after the expiration of the apprenticeship, and that he had burnt it, and that an inquiry had also been made of the daughter and sole executrix of the master, who said she knew no- « 5 Eng. Com. Law Reps. 291. 4 Secondary Evidence. thing about it, it was held that a sufficient inquiry had been made to render parol evidence of the contents admissible. R. v. Morton, 4 M. and S. 48. But where the party in whose possession the instru- ment was is alive, he must be called, and his declarations are not admissible. R. v. Denio, 7 B. and C. (520.'' Parkins v. Cobbett, I C. and P. 282.' Thus where, in another settlement case, it ap- peared, that there were two parts of an indenture, one of which had been destroyed, and the other delivered to Miss T. to whom the pauper had been assigned, and that application had been made to Miss T. (who was not called) who said she could not find the in- denture, and did not know where it was, the search was held to be insufficient. R. v. Castleton, G T. R. 230, and see Williams v. Young- husband, I Stai'k. 139. Where the lessor destruction of the paper may almost be presumed, very slight evidence of its loss or destruc- tion is sufficient. Per Abbott, C. J. Breicstcr v. Seu-ell, 3 B. and A. 296.' Per Bayhy, J. Freeman v. Arhell, 2 B. and C. 496.« The degree of diligence to be used in searching for a deed must depend on the importance of the deed, and the particular circumstances of the case. Per Cur. Gulhj v. Bp. of Exeter, 4 Bingh. 298." The presumption is that an useless instrument would be destroyed. Per Bayley, J. R. v. East Fairley, 6 D. and R. 153.' Where it was the duty of the party in possession of a document to deposit it in a particular place, and it is not found in that place, the presumption is that it is lost or destroved. R. v. Stourbridge, 8 B. and C. 96." 2 M. and R. 43. S. C. JK'otice to produce, ichen necessary i\ In general, when any writ- ten instrument is in the possession of the opposite party, secondary evidence of its contents is inadmissible, witiiout previous proof of a notice to produce the original. But. where, from the nature of the proceedings, the party in possession of the instrument has notice th.it he is to be charged with the possession of it, as in the case of trover for a bond, a notice to produce is unnecessary. How v. Hall, 14 East, 214.. Scott v. Jones, 4 Taunt. 865. Colling v. Treweek, 6 B. and C. 398.' So a notice is not required w^here the party has procured the possession of the instrument by fraud, as where he has received it, after the commencement of the action, from a wit- ness called for the purpose of producing it under a subpoena duces tecum. Leeds v. Cook, 4 Esp. 256. A counterpart may be read without a notice to produce the original. Burleigh v. Stibbs, 5 7'. R. 465. Roc V. Dams, 7 East, 863, ante, p. 2. In an action for sea- man's wages, secondary evidence of the ship's articles is admissible wnder stat. 2 G. II. c.'SG, s. 8, without a notice to produce them. Boicman v. Manzleman, 2 Camp. 315. Notice to produce a notice Vi not requisite. Kinc v. Beaumont, 3 B. and B. 288." Colling v. Treiceek, 6 B. and C. 398.' It seems to be the belter opinion, that <« 14 Eng. Com. Law Reps. 102. 111(1.394. f 5 Id. 291. E9Id. 159. b 13 Id. 439. i IG Id. 2JL'. M5 Id. 15C. ' 13 Id. 20a. "'7^.440. Secondary Evidence. 5 neither party will be allowed, either in an examination in chief, or in a cross-examination, to inquire into the contents of a deed, merely because the opposite party has the original deed in his possession, in court, at the time of the trial, and that the opposite party may object to parol evidence of the contents on account of his not having received a notice to produce the original. 1 Phill En. 425. 1 Stark. Ev. 362. See also Doe v. Grey, 1 Stark, 283.° Doe v. Harvey, 4 Burr. 2484. Notice to produce; proof of possession of original.'] In order lo render a notice to produce available, it must be proved that the original instrument is in the hands of the opposite party or of his privy. The nature of this evidence must vary according to the na- ture of the instrument. Where it belongs exclusively to the party, slight evidence is sufficient to raise a presumption that it is in his possession. Thus, where a solicitor proved that he had been em- ployed by the defendant to solicit his certificate, and that looking at his entry of charges, he had no doubt the certificate was allowed, this was held to be proof of the certificate having come to the de- fendant's hands. Henry v. Leigh, 3 Campb. 502. Where the in- strument has been delivered to a third person, between whom and the party to the suit there exists a privity, notice to the latter is suf- ficient, as in an action against the owner of a vessel for goods sup- plied to the use of the vessel, a notice to the defendant to produce the order for the goods, which had been delivered to the captain, is suf- ficient. Baldney v. Ritchie, 1 Stark. 338. So in an action against the sheriff, a notice to his attorney to produce a writ which has been returned to the under-sheriff, while the defendant was in office, is sufficient. Taplin v. Attij, 3 Bingh. 164." So also notice to a defendant to produce a check drawn by him, and paid by his banker, is sufficient to entitle the plaintiff to give secondary evi- dence of its contents, although the check remains in the banker's hands. Partridge v. Coates, R. and JM. 156. Burton v. Payne, 2 C. and P. 520.P But where a paper had been delivered to a third person, under whom the defendant justified, and by whose direc- tions he acted, a notice to produce, served upon the defendant, is not sufficient to authorize the admission of secondary evidence. Evans v. Sweet, R. and M. 83. R. v. Pearce, Peake, 76. But see Pritchard v. Symonds, B. JV. P. 254. contra. Notice to produce, farm of.] A notice to produce nriay be by parol, and if both a written "and parol notice have been given, proof of either is sufficient. Smith v. Young, 1 Camph. 440. ^ A notice to produce a particular letter must specify the letter intended ; to produce " all letters," is too general. France v. Lucy, R. and M. 341. Jones v. Edwards, M'Cl and Y. 139. If the title of the cause is misdescribed in the notice, it will be bad, as " A. assignee »2Eng. Com. Law Reps. 391. Mild. 81. p 12 Id. 243. iB Secondary Evidence. of B, and C. v. D." instead of " A. assignee of B. v. D." Harvey v. Morgan, 2 Stark. 19.* JVotice to produce service of, on whom.^ In general it is suffici- ent, even in a qui tarn action, to service thie notice to produce on the attorney or agent of the partv. Cates v. Winter, 3 T. R. 306, 2 T. R. 203 (;i). Bri/au v. Wagstaff, R. and M. 327. But a notice to produce papers not necessarily connected with the cause, served on the attorney so late as to prevent the party from receiving it in time before the trial, is not good. Vide v. Lady Anson, 1 M, and M 96. Notice to produce, time of service of] The notice must appear to be a reasonable notice. Service of the notice upon the wife of the defendant's attorney, in a town cause, late in the evening before the trial, was ruled insuflicient. Doe v. Gray, 1 Stark. 283.'' But notice to produce a letter served on the attorney of the party on the evening next but one before the trial, was ruled to be suffi- cient, though the party was out of England, the presumption being that on going abroad the party had left with his attorney the papers necessary for the conduct of I he trial. Bryan v. Wagstaff, R. and M. 327. See also Aff'alo v. Foudrinier, 1 M. and M. 335 (n). And a notice served on the tenth of April, the trial being on the fourteenth, was ruled to be sufficient to let in secondary evidence of letters writ- ten eighteen years back, and addressed to the defendant, a foreign- er, at his residence abroad. Drabble v. Donner, R. and M. 47. JVotice to produce, effect of] If the party refuses to produce the papers required, such a circumstance does not afford any inference against him, it merely entitles the other party to give secondary evidence. Cooper v. Gibbons, 3 Campb. 363. Laioson v. Sherxcood, 1 Stark. 315.' Where a party has notice to produce a particular instrument, but does not say that he has not got it, though he has in fact delivered it to the stamp-office, the other party will be allow- ed to give parol evidence of the content?. Sinclair v. Stephenson, 1 C. and P. 585.' If the party, giving the notice, declines to use the papers when produced, this, though matter of observation, will not make them evidence for the adverse party ; Sayer v. Kitchen, 1 Esp. 210 ; though it is otherwise if the papers are inspected. Wharam v. Routlege, 5 Esp. 235. Secondary evidence of papers, to produce which notice has been given, cannot be entered into un- til the party calling for them has opened his case, before which time there can be no cross-examination as to their contents. Gra- ham V. Dyster, 2 Stark. 23.'' What is sufficient secondary evidence.] Where a notice to pro i3 Eng. Com. Law Reps. 22?. '2 Id. 391. -2 Id. 405. « 11 Id. 480. • 3 Id. 224. Secondary Evidence. 7 duce a deed has been given, and the deed is not produced, a coun- terpart, if in existence, is the next best evidence; R. v, Cas-tleton, 6 T. R. 236 ; if there be no counterpart, an examined copy ; if no examined copy, parol evidence. B. JV. P. 254. And parol evidence of a writing may be given as secondary evidence, though the person who wrote the instrument is alive and not called. Liebman v. Pooley, 1 Starli. 167.^ The copy of a copy is not the best second- ary evidence when the original copy can be produced. Ibid. Where possession has gone along with a deed for many years, the original of which is lost or destroyed, an old copy or abstract may be given in evidence, although not proved to be true, because it may be im- possible to give better evidence. B. JV. P. 254. After notice to the defendant to produce a letter, which he admitted he had received from the plaintiff, it was ruled that an entry by a deceased clerk in a letter-book, purporting to be a copy of a letter from the plaintiff to the defendant, was evidence of the contents, proof being given that according to the course of business, letters of business written by the plaintiff were copied by this clerk, and sent off by the post. P7'itt V. Fairclough, 3 Campb. 305. So the copy of a letter accom- panied with a memorandum in the handwriting of a deceased clerk, purporting that the original had been forwarded by him, is evidence, with proof that this was the usual mode of transacting business. Hagedorn v. Reid, 3 Campb. 377. But where the practice of the defendant's counting-house was, that the clerk after copying a letter into the letter-book returned it to the defendant to seal, and that he, or another clerk, carried all the letters to the post-office, but there was no particular place of deposit in the office for such letters, and neither of the clerks had any recollection of the particular letter, though they swore that they had uniformly carried all letters given them to carry. Lord Tenterden ruled that the copy in the letter-book was not evidence that the original had been sent. His Lordship added, " If the duty of the clerk had been to see the let ters he copied carried to the post-office, it might have done." Toosey v. Williams, 1 M. and M. 129. A copy taken by a copying machine is not evidence without a notice to produce the original. Nodin V. Murray, 3 Campb. 228. See R. v. Watson, 2 Stark. 129.' An entry in the register-book at the custom-house, slating, that a certificate of register was granted on an affidavit of A. that he was an owner, is not admissible as secondary evidence of the con- tents of the affidavit ; some person who has seen the affidavit, and knows that it was made by A., must be called. Teed v. Martin, 4 Campb. 90. To entitle a party to go into secondary evidence of a writ, after its return, it must be shown, that search has been made in the treasury, and that subsequently to the return day the writ was in the possession of the opposite party, on whom notice to pro- duce it has been served. Edmonstone v. Plaisted, 4 Esp. 160. » 2 Eng. Com. Law Reps. 340. "3 1(1.273. 8 Secondary Evidence. Where there are two parts of a written agreement, both executed at the same time, the one stamped and the other unstamped, the unstamped part is admissible as secondary evidence of the contents of the stamped part. JVaUer v. HarsfaU, 1 Campb. 501, Munn v. Godhold, 3 Bingh. 292.^ 11 B. JV/oorc,"49, S. C. In order to prove the endowment of a vicarage, an old ledger or chartulary of an abbey, containing amongst other things an account of the several matters of endowment, and found in the possession of the person who had succeeded to part of the abbey estates, was admitted as secondary evidence of the endowment, search having been made for the original endowment. Bullcn v. Mitchell, 2 Price, 399, S. C. in I). P. 4 Doiv, 297. In an action against an executor for money had and received, after notice to produce the probate, the original will, produced by the officer of the ecclesiastical court, and bearing the seal of that court, and endorsed as the instrument on which probate was granted, with the value of the effects sworn to, is admissible as secondary evi- dence. Gorton V. Dijson, 1 B.and B. 219.^ So where in an avowry for a rent-charge, the avowant could not produce the will under which he claimed (it belonging to the devisee of the land) but pro- duced the ordinary's register of the will, and proved former pay- ments, it was held sufficient evidence against the plaintiflT, the devisee of the land charged. B. JV. P. 246. But it seems in this case there should be a notice to produce. Parol evidence inferim- to uritten evidenced] In general, parol evidence is esteemed secondary in its nature to written evidence. Thus when an agreement has been reduced into writing, the writ- ing must be produced; Brerver v. Palmer, S Esp. 213. Doe v. Griffith, 6 Bingh. 533 ;^ and if not properly stamped the plaintiff must be non-suited. But a mere memorandum not signed by the parties will not prevent the introduction of parol evidence. Doe v. Carticright, 3 B. and A. 326 f and see Hawkins v. Warr, 3 B. and C. 698.'' So where a verbal contract is made for the sale of goods, and is put into writing afterwards by the vendors agent, for the purpose of assisting his recollection, but not signed by the vendor, it may be proved by parol. Dalison v. Stark, 5 Esp. 163. In order to render the production of the writing necessary, it must appear to relate to the matter in question ; thus where the parol evidence is offered to prove a tenancy, it is iiot a valid objection that there is some written agreement relative to the holding, unless it should also appear that the agreement was between the parties as land- lord and tenant, and that it continues in force to the very time to which the parol evidence applies. Doe v. Morris, 12 East, 237. See Stevens v. Penney, 2 B. Moore, 249."= Where, in ejectment, » 11 Eng. Com. Law Reps. 108. t 5 Id. G3. M9Id. 159. » 5 Id. 306. Moid. 215. « 4 Id. 117. Secondary Evidence. 9 the plaintiff's witness proved an acknowledgment by the defend- ant that he held under T,, and stated that he (the witness) had^ drawn an agreement touching the premises, between the plaintitf and T., it was held that the plaintiff was bound to produce the wri- ting. Fenn v. Griffith, 6 Bingh. 533/ Parol evidence inad7nissible to vary or contradict a writing.'] As parol evidence is inferior to written evidence, it is not admitted to vary or contradict the terms of an instrument in writing. Thus where it was agreed in writing, that A. for certain considerations should have the produce of Boreham meadow, it was held, that he could not prove by parol that he was to have both the soil and pro- duce of Milcroft and of Boreham meadow. Meres v. Ansell, 3 Wils. 275 ; and see Hope v. Atkins, 1 Price, 143. So parol evidence is inadmissible to show that a note made payable on a day certain, was to be payable on a contingency only. Dawson v. Wcdker, 1 Stark. 36 1," Woodbridge v. Spooner, 3 B. and A. 233.' So where the conditions of sale described the number and kind of timber trees to be sold by lot, but not the weight of the timber, it was held, that parol evidence could not be given that the auctioneer had at the sale warranted the timber of a certain weight. Powell v. Edmunds, 12 East, 6. So parol evidence is inadmissible to alter the legal con- struction of a written agreement. Thus where an agreement for the sale of goods was silent as to the time of delivery, in which case the law implies a contract to deliver in a reasonable time, it was held, that parol evidence of an agreement to take them away im- mediately was inadmissible. Greaves v.Aslilin, 3 Campb. 426. Hal- liley V. Mcholson, 1 Price, 404. But where, by agreement in writ- ing, certain goods were to be delivered at fixed times, and part be- ing delivered, a verbal agreement was made to extend the time for the delivery of the remainder, it was held, that evidence of such verbal agreement was admissible. Cuff v. Penn, 1 M. and S. 21. So parol evidence is admissible to show that a written contract between A. and B. was in fact made by B., not on his own account, but as agent. Wilson v. Hart, 7 Taunt. 295,^ 1 B. Moore, 45 S. C. Parol evidence is admissible of a contract collateral to that contain- ed in a deed or writing, though relating to the same subject matter. White V. Parker, 12 East, 578. Seago v. Deane, 4 Bingh. 459.'' Parol evidence admissible to prove an additional consideration in a written instrument, or to vary the date, SfC.'] Where no considera- tion is mentioned in a deed, a consideration may be averred and proved by parol, for such averment stands with the deed, and does not contradict or vary it. Mildmaifs Case, 1 Rep. 176, a. Peacock V. Monk, 1 Ves. 128. So where there is a consideration stated, an -f 19 Eng. Com. Law Reps. 1.59. ' 2 Id. 427. '5 Id. 268. s 2 Id. 112. M3 Id. 39. 2 10 Secondary Evidence. averment of another consideration, which is not contrary to the deed, may be made. Ibid. Villers v. Beaumont, Dyer, 146, a. Tall V. Pivkit, 1 M. and M. 472. So in a settlement case, where the deed of conveyance stated the consideration of the purchase to be twenty-eight pounds, parol evidence was admitted to show that the consideration was in fact thirty pounds. A*, v. Scayimionden, 3 T. R. 474. Parol evidence is admissible to prove a deed delivered on a day different from that on which it professes to have been indented and concluded. Stane v. Bah, 3 Lev. 348, and see Steele v. Mart, 4 B. and C. 272.' Parol evidence admissible to provefraud in written instruments^ Where fraud is imputed, any consideration, however contrary to the averment of a deed, may be proved to show the fraudulent nature of the transaction. B. J\'. P. 173. See Paxton v. Popham, 9 East^ 421. So in order to set aside a will for fraud, parol evidence may be given of what passed at the signing, and what the testator said. Doe V. Allen, 8 T. R. 147. The party charged with fraud will not be admitted to prove any other consideration than that stated. Clarkson v. Hanway, 2 P. Wms. 203. Parol evidelice admissible to prove custom not expressed in written instrument. Where the parties have contracted in writing, in many instances parol evidence is admitted to prove a custom affecting the contract, on the ground, that where such a custom exists, the parties must be taken to have made their contract subject to its operation. Thus, in the construction of mercantile contracts, parol evidence is always admitted to show the sense in which, according to the usage and custom of merchants, such contracts are to be understood. As where a ship was warranted to depart with convoy, evidence of the usage amongst merchants was admitted to show that this meant convoy from the usual place of rendezvous. Lethullier's Case, 2 Stalk. 443. So to explain the meaning of " days" in a bill of lading. Cochran v. Retherg, 3 Esp. 121. See Donaldson v. Forster, Abbot on Shipp. 209, 5th ed.. Birch v. Depeyster, 4 Campb. 385. 1 Stark. 210," S. C. Taylor V. Briggs, 1 C. and P. ^ 525. Simpson v. Hen- derson, 1 'M. and M. 300. So where there was an ambiguity on the face of an account, a clerk in the office in which the account was kept was permitted to explain the meaning of a particular item. Hood V. Reehes, 3 C. and P. 532."' But proof of the usage of trade is not admissible to contradict the plain words of an instrument ; as where a policy of insurance was " on the ship till moored at an- chor twenty-four hours, and on the goods till discharged and safely landed," evidence of an usage that the risk on the goods as well as the ship expired in twenty-four hours was held inadmissible to qua- ■' 10 Eng. Com. Law Reps. 331. ^ 2 Id. 359. ' 12 Id. 245. " 14 Id. 432. Secondary Evidence. 11 lify the clear and unequivocal words of the policy. Parkinson v. Collier, Park, Ins. 416, 6th ed. So in an action on a warranty of " prime singed bacon," parol evidence was rejected of a practice in the bacon trade to receive bacon in some degree tainted, as " prime singed bacon." Yates v. Pym, 6 raunt. 446,- 2 Marsh. 141. b. C. It has been doubted whether the practice of admitting parol evi- dence in these cases has not been carried to an inconvenient lengthy See Anderson v. Pitcher, 2 B. and P. 168. ^ A custom affecting the contract may be proved by parol in .^er as well as in mercantile contracts. Thus it may be prove^^ that a heriot is due by custom on the death of a tenant, thoug'a not ex- pressed in the lease. White V. Sayer, Palm. 211. Q', that a lessee by deed is entitled by custom to an away-going. 'iiop, though it be not mentioned in the' deed. Wiggleswarth v. Dallison, Dougl. 201. So in the case of a lease not under seal. Senior v. Armytage, Holt, 197." But where a covenant in express terms, or by necessary implication, excludes the customary right, evidence of such right is inadmissible. Webb v. Plummer, 2 B. and A. 746. Parol evidence admissible to explain ancient charters, grants, ^c] In the construction of ancient charters, parol evidence has always been admitted to prove the Continual and immemorial usage under the instrument. 2 Inst. 282. R. v. Varlo, Coivp. 248. Chad V. Tilsed, 2 B. and B. 406.P Governors of Lucton School v. Scarlett, 2 Y. and J. 330. So in the construction of ancient grants and deeds there is no better way of construing them than by usage, and contemporanea expositio is the best way to go by. Per Lord Hard- wicke, Attorney-General v. Parker, 3 Atk. 576. However general the words of ancient grants may be, they are to be construed by evidence of the manner in which the thing has been always pos- sessed and used. Per Lord Ellenbarough, Wild v. Hornby, 7 East, 199. There seems to be no distinction in this respect between char- ters and private deeds. Withnell v. Gartham, 6 T. R. 398, Stam- mers V. Dixon, 7 East, 200. Evidence of usage, however, will not be admitted to overturn the clear words of a charter. See R. v. Varlo, Coicp. 248. In the case of modern deeds evidence of the acts of the parties is not admissible, in the construction of the in- strument, to show their understanding of it. Clifton v. Walmesley, 5 T. R. 564. Iggidden v. May, 9 Ves. 333. 2 JV. R. 452, S. C. Moore V. Foley, 6 Fes. 238. Parol evidence admissible to discharge uritten agreements^ Al- though a deed cannot be revoked or discharged by parol, or even by writing not under seal, yet an executory argument, in writing, not under seal, may, before breach, be discharged by a subsequent parol agreement ; Lai^d Milton v. Edworth, 6 B. P. C. 587 ; but, • 9 Eng. Com. Law Reps. 446. » 3 Id. 71. p 6 Id. l7l. 12 Secondary Evidence. after breach, it cannot be discharged, unless by deed or accord and satisfaction. B. N. P. 152. Wilhughhy v. Bachhousp, 2 B. and C. 824.1 So it seems, that where the instrument is in writing pursu- ant to the statute of frauds, it may yet be discharged by a subse- quent parol agreement before breach. 1 Phill. Ev. 545, and see Cvffv. Penn, 1 M. and S. 21, a7ite p. 9. ^iParol evidence admissible to explain latent ambiguity. '\ Where an amin^uity not apparent on the face of a written instrument is raised by the ^introduction of parol evidence, then from the necessity of the case, the saiJje description of evidence is admitted to explain the am- biguity ; for example, where a testator devises his estate of Black- acre, and has tvv6 i,5,f ates called Blaekacre, evidence may be admit- ted to show which of the Blackacres is meant ; or if one devises to his son John Thomas, and he has two sons of the name of John Thomas, evidence may be admitted to show which of them the testator intend- ed. Per Gibbs, C. J. Doe v. Chichester, 4 Dow, 93. So where land is devised to a person designated by her Christian and surname only, and no person of that name claims under the devise, parol evidence is admissible, to show that the name M^as mistaken by the person who took the instructions for the will. Beaumont v. Fell, 2 P. Wms. 141, and see Careless v. Careless, 1 Meriv. 384. And where a devise was to S. H. second son of T. H., but in fact he was the third son, evidence of the state of the testator's family and of other circumstances was admitted to show whether he had mistaken the name or not. Doe V. Huthivaite, 3 B. and A. 632."" So where a tine was levied of twelve messuages in Chelsea, and it appeared that the cognizor had more than twelve messuages in Chelsea, parol evidence was admit- ted to show which messuages in particular the cognizor intended to pass. Doe v. Wilford, R. and M. 88. 8 D. and R. 549.^ Where a subject matter exists w^hich satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity, and no evidence can be admitted for the purpose of applying the terms to a different object, 3 Stark. Ev. 1026. Thus, where a tes- tator devised his " estate at Ashton," it was held, that parol evi- dence was inadmissible to show that he was accustomed to call all his maternal estate " his Ashton estate," there being an estate in the parish of Ashton which was sufficient to satisfy the devise. Doe V. Oxendon, 3 Taunt. 147, S. C. in Error, 4 Dou\ 65. See also Carruthers V. Sheddon, 6 Taunt. 14.* Where the ambiguity is not latent, and raised by extrinsic evi- dence, but patent or apparent on the face of the instrument, parol evidence is not admissible to explain such ambiguity. Thus, where a blank is left for the devisee's name in a will, parol evidence can- not be admitted to show whose name was intended to be inserted. Baylis v. Alt. Gen. 2 Ath. 239. See Doe v. Westlake, 4 B. and A. 1 9 Eng. Com. Law Reps, 254. ' 5 Id. 406. • 16 Id. 347. » 1 Id. 293. Presumptive Evidetice. 13 57." But where a blank was left for the Christian name only, pa- rol evidence was admitted to prove the individual intended. Pi-ice V. Page, 4 Ves. 680. So in case of a devise " to Mrs. C." the chan- cellor referred it to the master to receive evidence, to show the per- son intended. Abbot v. Massie, 3 Fes. 148. Where a blank is left in a written agreement, which need not have been reduced into writing, and would have been equally bind- ing if written or unwritten (as if the agreement were to deliver goods to the amount of lessthan ten pounds, and a blank were left for the quantity of goods to be delivered), in such a case it is pre- sumed, in an action for the :ion -performance of the contract, parol evidence might be admitted \o show the quantity for which the par- ties agreed. 1 Phill. Ev. 521, So where in the bishop's register, a blank was left for the patron's name, it was held, that this might be supplied by parol evidence. B. of Meath v. Lard Belfield, 1 Wils. 215. Parol evidence admissibh on question of parcel or no parcel.'] Where the question is, " panel or no parcel," parol evidence is ad- missible to explain a writing, Thus, where a testator devised " all his farm called Trogues farm," it was held that it might be shown by evidence of what parcels tie farm consisted. Goodtille v. South- em, 1 M. and S. 299. So in cise of a written agreement to convey " all those brick-works in the possession of A. B.," declarations of A. B. at the time of the agreement were admitted to show what the brick-works were. Paddock v Fradlexj, 1 Cram, and Jer. 90 ; and see Davis v. Lewis, 2 Chitty's Rep. 535,' 8 D. and R. 554. Parol evidence admissible to prove a certain relation between par- ties.l The relation or relative situation of two parties may be proved by parol, though the contract out of which that relation arises be in writing. Thus in a settlement case it has been held that parol evidence of the fact of tenancy is admissible though the pauper held under a written contract. R. v. Inhab. Holy Trinity, 7 B. and C. 611,^ sed vide Strother v. BajT, 5 Bingh. 155.^ But where a tenancy is thus prima jade proved by parol, the other party who wishes to vary the terms of the tenancy must produce the written instrument. R. v. Rawden, 8 B. and C. 708.^ So a partnership may be proved by parol, although there is a deed of co- partnership. Alderson v. Clay, 1 Stark. 405 ;^ and see Harvey v. Ray, 9 B. and C. 356." Vide ante, p, 1. PRESUMPTIVE EVIDENCE, Presumptive evidence, though liable to be rebutted by evidence to the contrary, is not in its nature secondary to positive evidence. "GEng. Com. Law Reps. 348, v le Id. 410. '^ 14 Id. 101. - 15 Id. 391. r 15 Id. 329. ' 2 Id. 445. M7 Id. 391 . 14 Presumptive Evidence, Thus, although the payment of rent may be proved by the positive evidence of a person who saw it paid, yet it may also be proved by the production of a receipt for later arrears (which affords a pre- sumption that the earlier arrears are satisfied), without laying any ground for the introduction of such evidence by showing that posi- tive evidence cannot be procured. See post. As almost every fact is capable of being proved by presumptive as well as by positive evidence, a few cf the most useful cases only will be selected as examples of the nature and application of pre- sumptive evidence. In case of an ancient recovery accompanied by possession, it shall be presumed, thf.t the tenant to the praecipe was seized of the freehold, and such sesin need not be proved. Gi/b. Ev. 27. So a deed, thirty years old. or upwards, is presumed to have been duly executed, provided some account be given of the deed, where found, &c. B. JV. P. 25L An endowment of a vicar- age may be presumed from the long |ind continued possession of tithes and other profits. Crimes v. Smijh, 12 Rep. 4, and see Wolley V. BrownhUl, M'Clel. 332. A license priay be presumed, as where an enclosure having been made fromia waste, twelve or fourteen yeai's, and seen by the steward of the iord from time to time, with- out objection made, it was left to tl?e jury to say whether or not . the enclosure was made by the lords license. Doe v. Wilson, 1 1 East, 56. The existence of a imn^morial custom may be pre- sumed from an uncontradicted usagdof twenty years. R. v. JoIIiJfe, 2 B. and C. 54," 3 D. and R. 240, 1 C. The flowing of the tide presumptive evidence of a public nafigable river. Miles v. Rose, 5 Taunt. 105," 1 Marsh. 813, S. C. But the strength of this prima facie evidence upon the situation aad nature of the channel. R. v. Mountague, 4 B. and C. 602.* / Presumption of payment.'] If a landlord give a receipt for the rent last due, it is to be presumed that all former rent due by the tenant has been paid, Gilb. Ev. 157 ; and if the acquittance is un- der seal, it is an estoppel, and the presumption cannot be rebutted. Ibid. 158. Where a bill of exchange negociated after acceptance is produced from the hands of the acceptor after it is due, the pre- sumption is, that the acceptor has paid it. Gibbon v. Featherstone- haugh, 1 Stark. 225.* Pfiel v. Vonbatenberg, 2 Campb. 439. Proof that the plaintiff, and other workmen employed by the defendant, came regularly to receive their wages from the defendant, whose practice was to pay every week, and that the plaintiff had not been heard to complain of non-paymant, is presumptive evidence of pay- ment. Lucas V. JVovosilieski, 1 Esp. 29Q, Seilen v. JVorman,4 C. and P. 80.' So where the demand was for the proceeds of milk sold daily to customers by the defendant, as agent to the plaintiff, and it appeared that the course of dealing was for the defendant to pay *> 9 Eng. Com. Law Reps. 21. ' 12 Id. 40. ^ 10 Id. 413. « 2 Id. 366. ' 19 Id. 284. Presumptive Evidence. \^ to the plaintiff every day the money which she has received, with- out any written voucher passing, it was ruled that it was to be pre- sumed, that the defendant had in fact accounted, and that the onus of proving the contrary lay on the plaintilK Evans v. Birch, 3 Campb. 10. So where goods have been consigned to a factor to sell on commission, it may be presumed after a reasonable time {e.g. 14 years) has elapsed, that he has accounted. Topham v. Braddich, 1 Taunt. 572. Although, in analogy to the case of bonds, Lord Elienborough ruled thai a promissory note might be presumed to be paid after twenty }ears ; Duffield v. Creed, 5 Esp. 52 ; yet it has been since held that the case is distinguishable from that of bonds, and that the rule £s to twenty years does not apply. Du Belloix V. Lord Waterford^l-D. and R. 16.s The mere production of a cheque drawn by the defendant on his banker, and payable to the plaintiff, with proof that he endorsed his name upon it, and that it has been paid, affords pmtia facie evidence of payment to him. Egg. V. Burnett, 3 Esp. 186. But it was ruled by Dallas, C. J. that the mere proof of a ew had no existence shortly before the thirty years. Griffiths v. Mdthews, 5 T. R. 296. Twenty years' exclusive possession of a streem of water in any particular manner afibrds a conclusive presumptbn of right in the party enjoy- ing it, derived from a grant or act of parliament, but less than twenty years may or may not afford such a oresumption, according as it is attended with circumstances to suppcrt or rebut the right. Per Lord Ellenborough, J. C. Bealey v. Shaw Q East, 215. Where it had been proved, that the owners of a fishery and their lessees had for above twenty years publicly landed their nets on another's ground, and had occasionally repaired the landing-places, it was held that it was properly left to the jury to presume a grant of the right of landing nets to the owners of the fishery. Gray v. Bond, 2 B. and ' 11 Eng. Com. Law Re|}s. 37. PresinnpHve Evidence. 17 B. 667. ■» In order to establish the presumption of a grant of a way, &c. it must appear that the possession was with the acqui- escence of him who was seised of an estate of inheritance ; for a ten- ant for life or years has no power to grant such right for a longer period than during the continuance of his particular estate ; Daniel V. North, 11 East, 372 ; Barker v. Richardson, 4 B. and A. 579;° but, if the easement existed previously to the commencement of the tenancy, the fact of the premises having been for a long time in the possession of a tenant will not defeat the presumption of a grant. Cross v. Lewis, 2 B. and C. 680." Charters and grants from the crown may be presumed from great length of possession, as for instance, 100 years, not merely in suits between private parties, but even against the crown itself, if the crown were capable of making the grant. R. v. Broicn, cited Coicp. 110. Mayor of Kingston v. Homer,' Co; cp. 102. Where the origin of the possession is accounted for without the aid of a grant or con- veyance, and is consistent with the fact of there having been no conveyance, it is a question for the jury whether in fact any con- veyance has actually been executed. Doe v. Reed, 5 B. and A. 232," and see post in " Eject?nent." • The possession of a lease by the lessor with the seals cut off, affords no presumption of a surrender. Doe v. Thomas, 9 B. and C. 288.1 Where a feoffment has been proved, livery of seisin may be pre- sumed after twenty years, if possession has gone along with the feoffment; Biden v." Loveday, cited 1 Vern. 196, Rees v. Lloyd, Wightw. 123; but a less time than twenty years is not sufficient. Doe V. Marquis of Cleveland, 9 B. and C. 864". Presumption of dedication of ivay to the public^ U the owner of the soil throws "open a passage, and neither marks by any visible distinction that he means to preserve all his rights over it, nor ex- cludes persons from passing over it by positive prohibition, he shall be presumed to have dedicated it to the public ; Per Lord Ellen- borough, R. V. Lloyd, 1 Ca7npb. 262 ; but proof of a bar having been placed across the street^ soon after the houses which form the street were finished, will rebut the presumption of dedication, though the bar was soon afterwards knocked down, since which period the way has been used as a thoroughfare, for a dedication must be made openly, and with a deliberate purpose. Roberts v. Karr, 1 Campb. 262 {n). The question of dedication depends upon the time and nature of the enjoyment which persons have had of the passage over the land ; therefore, where the plaintiff erected a street leading out of a highway across his own close, and terminat- ing at the edge of the defendant's adjoining close, which was sepa- m 6 Eng. Com. Law Reps. 308. " 6 Id. 523. " 9 Id. 221. p 7 Id. 79. 1 17 Id. 380. '17 Id. 512. 3 1 8 Presumptive . Evidence. rated by the defendant's fence from the end of the street, for twenty-one years, (during the nineteen of which the Iiouses were completed, and tlie street publicly watched, cleansed, and lighted: and both footways, and half the horseway, paved at the expense of the inhabitants,) it was held, that this street was not to be pre- sumed to be so dedicated to the public, as that the defendant, pul- ling down his own wall, might enter it at the end adjoining to his land, and use it as a highway. Woodyer v. Hadden, 5 Taimt. 125.» It seems that there may be a limited dedication of a highway to the public. Marq. of Staff, v. Coyneij, 7 B. and C. 257.* It has been held, in one case, that six years are sufficient to found the presumption of dedication; 11 East, 376 (?i) ; and where the locus in quo had been in lease for a long term up to the year 1780, and from that time till the year 1788 the public were permitted to have the free use of it, as a way, Lord Kenyon held it to be quite a sufficient time tor presuming a dedication. Trustees of Rugby Charily V. Merry iceather, U East, SI G{n). If the land is in the possession of a tenant, such tenant cannot dedicate it to the public so as to bind the owner of the fee. Wood v. Veal, 5 B. and A. 454." But, after a long lapse of time, and a frequent change of tenants, Lord Ellenborough said, that from the notorious and uninterrupted use of a way by the public, he should presume that the landlord had notice of the way being used, and that it was so used with his concurrence. R. v. Barr, 4 Camp. 16. Where a public footway over crown land was extinguished by an enclosure act, but for twenty years after the enclosure took place, the public had con- tinued to use the way, it was ruled by Bayley, J. that this user was no evidence of a dedication to the public, as it did not appear to have been with the knowledge of the crown. Harper v. Charles- worth, 4 B. and C. 574.^ Presumption of the duration of life.'] As to persons of whom no account can be given, the presumption of the duration of life ends at the expiration of seven years from the time when they were last known to be living. Per Lord Ellenborough, Doe v. Jesson, 6 East, 84 ; see also Doe v. Deahn, 4 B. and A. 433.^ Proof by one of a family, that many years before, a younger brother of the per- son last seised had gone abroad, and that the repute of the family was, that he had died there, and that the witness had never heard in the family of his having been married, is presumptive evidence of his death without issue. Doe v. Griffin, 15 East, 293. Doe v. Wolley, 8 B. and C. 22,^ 3 C. and P. 402, S. C. Proof that a per- son sailed in a ship bound for the West Indies two or three years ago, and that the ship has not since been heard of, is presumptive evidence that the person is dead ; but the time of the death, if material, must depend upon the particular circumstances of the • 1 Eng. Com. Law Reps. 34. • 14 Id. 39. • 7 Id. 158. » 10 Id. 412. » 6 Id. 476. » 15 Id. 150. Hearsay. 19 case. Watson v. King, 1 Stark. 121 ;^ and see more as to presump- tion of loss of missing ship, post " Assumpsit on Policy of Insurance." Presumption as to the legality or regularity of acts.'\ A person will not be presumed to have committed an unlawful act: therefore, when performances appear to have taken place at a theatre, a li- cense was presumed, Rodwell v. Ridge, 1 C. and P. 220/ So when a man has been elected to a corporate office, the presumption is that he has taken the sacrament according to law. R. v. Hawkins, 10 East, 211. So the fact of a person acting in an official capa- city, as a surrogate, is prima facie evidence that he was duly ap- pointed and had competent authority. R. v. Veralot,3 Campb. 432. Pritchard v. Walker, 3 C. and P. 212.=' So a fact may be pre- sumed from the regular course of a public office ; thus where it was proved that the custom-house would not permit an entry to be made, unless there had been an indorsement or a license, the li- cense being lost, it was held, that from the entry the indorsement might be presumed. Butler v. Allnutt, 1 Stark. 222." Presumption of knoivledge.'] In many cases, though the fact of actual knowledge cannot be proved, it will be presumed. Thus where the rules of a club were contained in a book kept by the master of the club, every member of the club must be presumed to be acquainted with them. Raggett v. Musgrave, 2 C. and P. 556.° Alderson v. Clay, 1 Stark. 405.* Wiltzie v. Adamson, 1 Phill. Ev' 252, 6th ed. HEARSAY. It is a general rule of evidence, that hearsay is inadmissible ; see Spargo v. Brown, 9 B. and C. 935;^ since it is the mere repeti- tion of evidence, not given under the sanction of an oath, and with- out the test of truth which is afforded by a cross-examination in open court. There are however certain instances in which, from the necessity of the case, hearsay is received. Hearsay admissible in questions of pedigree. In questions of pedigree, the oral, or written declarations of deceased members of the family are admissible to prove the pedigree. Declarations in a family, descriptions in wills, inscriptions upon monuments, in Bibles, and registry books, are all admitted upon the principle that they arc the natural effusions of a party who must know the truth, and who speaks upon an occasion where the mind stands in an even position without any temptation to exceed, or fall short of the trulh. Per Lord Eldon, Whitelocke v. Baker, 13 Ves. 514. Higham v. Ridgway, 10 East, 120. B. JV. P. 233. So a pedigree hung up in T 2 Eng. Com. Law Repi. 322. « 11 Id. 374. • 14 Id. 274. •> 2 Id. S66. •12 Id. 260. ■'2 Id. 445. • 17 Id. 525. 20 Hearsay. a family mansion is good evidence. Goodright v. Moss, Cowp. 594. The declarations of a parent arc tjcod evidence to prove the time of the hirth of a child ; Herbert r. Tvchal, T. Raym. 84, 7 East, 290 ; but not the place of birth ; R. v. Erith, 8 East, 542 : and the entry of the time of a child's birth in a public register is not evi- dence as to the time of the birth, unless it be proved that the entry was made by the direction of the father or mother, for a clergyman has no authority to make an entry as to the tiine of the birth. Wi- hen V. Laiv, 3 Stark. 03/ A bill in Chancery by a father, stating his pedigree, is also admissible, in the same manner as an inscription on a tomb-stone, or in a Bible. Taylor v. Cole, 7 T. R. S (?i). So an old and cancelled will. Doe v. Pembroke, 11 East, 504. Hearsay, of what persons, admissible in questions of pedigree.'] The hearsay must be from persons having such a connexion with the party to whom it relates, that it is natural and likely, from their domestic habits and connexions, that they are speaking the truth, and that they could not be mistaken. Per Lord Eldon, White- locke V. Baker, 13 Fes. 514. Declarations by a deceased husband as to the legitimacy of his wife, and as to the pedigree of her fam.ily, are evidence. Vowels v. Young, 13 Ves. 148. Doe v. Harvey, R. and M. 297. The declaration of a surgeon respecting the time of a birth at which he attended, seems to be evidence, as having been made on a matter peculiarly within his knowledge ; Higham v. Ridgway, 10 East, 109; Vin. Ab. Ev. i T. b. 91) ; \ Phill. Ev. 228; but the declarations of servants and intimate acquaintances are not admissible. Johnson v. Lauson, 2 Bingh. 86,^9 B. Moore, 183, S. C. The declarations of a deceased person as to the fact of his own marriage are evidence. B. JV. P. 112, R. v. Bramley, 6 T. R. 330. But the declarations of a deceased mother, as to the non-access of her husband, are not evidence, for she would not have been allow- ed to prove that fact in person if alive. B. JV. P. 112. R. v. Luffe, 8 East, 193. Goodright v. Moss, Cowp. 594. Hearsay in questions of pedigree not admissible post litem motam.'] If the declarations have been made after a controversy has arisen with regard to the point in question, they are inadmissible. Berkeley Peerage case, 4 Campb. 401. Banbury v. Peerage case, 2 Selw. JV. P. 112, 4th ed. It is not necessary, in order to exclude the evi- dence, to show that the controversy was known to the person mak- ing the declaration. 4 Campb. 417. Hearsay admissible to prove public rights, and rights in the na- ture of public rights.'] Hearsay, or common reputation, is admis- sible to prove public, or general rights. See the Berkeley Peerage case, 4 Campb. 415. Weeks v. Sparke, 1 M. and S. 686. Morewood 1 14 Eng. Com. Law Reps. 163. e 9 Id. 329. Hearsay. 21 V. Wood, 14 East, 329. So it is admissible to prove a right affect- ing a number of persons, and which is therefore in the nature of a pubHc right ; as a manorial custom ; Denn v. Spray, 1 T. R. 466; the boundaries between parishes or manors; Nichols v. Parher, 14 East, 331 ; or a Modus; Weeks v. Sparke, 1 M. and S. 691 ; but to prove a prescriptive right, strictly private, it is doubtful whether hearsay evidence is admissible. Moreicood v. Wood, 14 East, 327. Outram v. Moreicood, 5 T. R. 123. Withnell v. Gartham, 1 Es'p. 324. B. JV. P. 295. Blackett v. Lowes, 2 M. and S. 494. 1 PhilL Ev. 238. 1 Stark. Ev. 61. On a question whether a certain road was a highway, a copperplate map was produced, in which it was so described. It purported to have been taken by the direction of the churchwardens. The plaintiff offered to prove that it was ge- nerally received in the parish as an authentic map, but Lord Ken- yon rejected the evidence. Pollard v. Scott, Peake, 18. Though general reputation is evidence, yet the tradition of a particular fact is not. Weeks v. Sparke, 1 M. and S. 687. Ireland v. Poicell, Peake Ev. 15. Cooke v. Banks, 2 C. and P. 481." Before a cus- tomary right, &c. can be proved by evidence of reputation, a foun- dation must be laid by showing acts of ownership, and then the evidence of reputation becomes admissible, such evidence being confined to what old persons, who were in a situation to know what these rights are, have been heard to say concerning them. Ibid. These declarations, as in questions of pedigree, must not have been made post litem motam. R. v. Cotton, 3 Campb. 444. Though where, in a suit as to the custom of a manor, it is attempted to give in evidence depositions in a former suit, relative to a custom of the same manor, it is no objection that the depositions taken in the for- mer suit were post litem motam, if the two suits were not upon the same custom ; and where the former suit is very ancient, it is un- necessary to prove by extrinsic evidence that the witnesses who made the deposition were in the situation in which they profess to stand, or that they had the means of becoming acquainted with the customs of the manor. Freeman v. Phillips, 4 M. and S. 486. De- clarations of old persons concerning the boundaries of parishes and manors have been admitted in evidence, although the old persons were parishioners, and claimed right of common on the wastes, which their declarations had a tendency to enlarge. JVicholls v. Parker, 14 East, 331. So declarations on a question of parochial modus were received, though the deceased was a parishioner and liable to pay tithe. Harewood v. Sims, 1 Wightw. 112. Deacle v. Hancock, MClel. 85, 13 Price, 226, S. C. Hearsay admissible when part of the transaction."] When hear- say is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in ques- tion, it is then admissible ; for to exclude it might be to exclude >> 12 Eng. Com. Law Reps. 225. 22 Hearsay. the only evidence of which the nature of the case is capable. Thus in case for a false representation of the solvency of A. B., whereby the plaintilTs trusted him with goods; their declarations at the time, that they trusted him in consequence of the representation, are admissible in evidence for them. Fellowes v. Williamson, 1 M. and M. 306. So in an action against the drawer of a bill of exchange, what is said by the drawee on the bill being presented when due is evidence, but what passed between the drawee and the holder afterwards is not admissible. Prideaux v. Collier, 2 Sta7-h, 57'. So declarations made by a trader at the time of his ab- senting himself from home are admissible on a question as to his bankruptcy, to show the motive of his absence. Bateman v. Bailey, 5 T. R. 512, B. JV. P. 40. And in an action to recover money paid by a bankrupt, in contemplation of bankruptcy, his de- clarations as to the state of his affairs made about the time of the transaction, but unconnected with it, are admissible for the plain- tiff. Vacher v. Cocks, 1 M. and M. 358. Herbert v. Wilcocks, Id. 355 {n). So answers to letters written by the bankrupt request- ing assistance, may be read to prove the refusal to give assistance. Vacher V. Cocks, 1 M. and M. 358. So in actions of assault, evi- dence of what the plaintiff said immediately on receiving the hurt is admissible. Thornpson v. Trevanion, Skin. 402, G East, 193. In an action also for criminal conversation, the declarations of a wife at the time of her elopement, that she fled from immediate terror of personal violence from her husband, seem to be evidence against him. See Aveson v. Kinnaird, 6 East, 193. And where in a simi- lar action the defence was, that the plaintiff had connived at his wife's elopement, evidence was received on behalf of the plaintiff, oi the wife's declaration as to her intention in going. Hoare v. Al- len, 3 Esp. 276. In an action for breach of promise in marriage, if the defendant relies upon the general bad character of the plaintiff, a witness may be examined as to representations made to him by third persons. Foulkes v. Selwaij, 3 Esp. 236. Ancient documents, in what cases admissible.'] Where the con- tents of an ancient deed, or document, raise a presumption of a par- ticular fact, evidence of such deed, or instrument, is admissible in proof of the fact. Thus, where the question was whether certain lands within a manor were subject to a right of common, counter- parts of old leases, preserved among the muniments of the lord of the manor, by which the land appeared to have been demised by the lord free from such charge, were allowed to be evidence for the plaintiff, claiming under the lord of the manor, to prove that at the time of their respective dates, the lord had granted the land free from common, though possession under the leases was not shown. Clarkson v. Woodhouse, 5 T. R. 412 (n). 3 Dougl. S. C. So old entries of licenses on the court-rolls of a manor, stating that the » S Eng. Com.^L&w Kept. 242. Hearsay. 23 lords of the manor had the several fishing in a navigable river, and had granted liberty of fishing for certain rents, were held admissible to prove a prescriptive right in the plaintiffs, claiming under the lords of the manor, without proof of payment under the licenses; but such evidence is not entitled to any weight unless it be shown that in later times payments have been made under similar licenses, or that the lords of the manor had exercised other acts of owner- ship which have been acquiesced in. Rogers v. Allen, 1 Camp. 309. An old deed between a public body claiming tolls and others liable thereto, regulating the amount of payment, is evi- dence of the existence of the tolls. Brett v. Beales, 1 M. and M. 416. Hearsay of persons having no interest to misrepresent, in what cases admissible.'] What a man writes or says for himself, cannot be evidence for himself or his representative. Glyn v. Bank of England,^ Fes. 43. R. v. Dehenham, 2 B. and A. 187. Therefore entries made by a deceased person, under whom the defendant claims, acknowledging the receipt of rent for the premises in ques- tion, are not admissible evidence for the defendant. Outram v. Morewood, 5 T. R. 123. So on a question whether the appoint- ment of a curate belongs to the vicar or to a corporation, entries in old books belonging to the corporation are not evidence for them. Attorney Gen. v. Corporation of Warwick, 4 Russ. 222. So a sur- vey of a manor made by the owner is not evidence against a stran- ger in favour of a succeeding owner; Anon. 1 Sir. 95; but where A. seized of the manors of B. and C, causes a survey to be taken of the manor of B., which is afterwards conveyed to E., and after a long time there are disputes between the lords of the manors of B. and C. about their boundaries, this old survey may be given in evi- dence. Bridgman v. Jennings, 1 Ld. Raym. 734. Entries by a deceased rector, or vicar, as to the receipt of ecclesiastical dues, are admissible for his successor, on the ground that he has no interest to mis-state the fact. Le Grose v. Lovemoor, 2 Giuill. 529. Arm- strong V. Hewit, 4 Price, 218. And even where the entries have been made by deceased impropriate rectors, they have been admit- ted as evidence for their successors, though objected to as coming from the owners of the inheritance. Anon. Bunb. 46, lllingicorth V. Leigh, 4 Gwill. 1618. But the reception of this evidence has given rise to much observation. See the cases cited 1 Phill. 247 in). An attorney's bill with an indorsement upon it. "March 4, 1815, delivered a copy to C. D.," which indorsement is proved to be in the handwriting of a deceased clerk of the plaintiffs (whose duty it was to deliver a copy of the bill), and which is proved to have exist- ed at the time of the date, has been held to be evidence to prove the delivery of the bill. Champneys v. Peck, 1 Stark. 404.'' In a late case, Best, C. J. is said to have been of opinion, that a banker's *■ 2 Eng. Com. Law Repi. 445. 24 Hearsay. ledger was receivable in evidence, in an action between tbe assign- ees of a cuslomer and a third party, to show that the customer at a certain time had no funds in the banker's hands. Furness v. Cope, 5 Bing/i. HI.' Hearsay of persons speaking against their own interest admissi' ble.l In a variety of cases the declarations of deceased persons, made against their own interest, have been admitted. See the cases collected 2 Russell, 07 (n). Thus entries by a deceased steward of money received by him from difFerent persons, in satis- faction of trespasses committed on the waste, are admissible to prove that the right to the soil of the waste was in his master. Bar- ry V. Bebbington,4 T. i?. 514. Wynne v. Tyrirhitt, 4B. and A. 376."" So a bill of lading signed by a deceased master of a vessel, for goods deliverable to a consignee, is evidence of property in the consignee, even in trover for the goods against a third person. Per Laurence, J., Haddoiv v. Parry, 3 Taunt. 305. So also a declara- tion by a deceased occupier of land that he rented it under a cer- tain person, is evidence of that person's seisin. Uncle v. Watson, 4 Taunt. 16. Doe v. Jones, 1 Campb. 367. Davies v. Peirce, 2 T. R. 53. Doe V. Green, Gow, 227. Entries made by a deceased collector of rates, charging himself with the receipt of money, and made by him in the public books of his office, are admissible against his sure- ty to prove the receipt. Goss v. Watlington, 3 B. and B. 132." And the same has been held with regard to the entries of a clerk. Whitnash v. George, 8 B. and C. 556." So entries in the land-tax collector's books, stating A. B. to be rated for a particular house, and his payment of the sum rated, are evidence to show that A. B. was occupier of the premises at the time. Doe v. Cartioright, R. arid M. 62. Upon the same principle, entries by a deceased shopman or ser- vant, in his master's books, stating the delivery of goods, are evi- dence for his master of such delivery. Price v. Lord Torrington,! Salk. 285. In order to render such entries evidence, it must appear that the shopman is dead; that he is abroad and not likely to re- turn is not sufficient. Cooper v. Marsden, 1 Esp. 1. By stat. 7 Jac. I. c. 12, the shop-book of a tradesman shall not be evidence in any action for wares delivered, or work done above one year be- fore the bringing of the action, except the tradesman or his execu- tor shall have obtained a bill of debt, or obligation of the debtor for his said debt, or shall have brought against him some action within a year next after the delivery of the wares, or the work done. -See Sikes V. Marshall, 2 Esp. 705. Where the effect of the entry is not to charge the servant it is not evidence : thus in an action for the hire of horses, an entry by the plaintiflf's servant, since dead, stating the terms of the agreement with the defendant, is not evi- dence. Calvert v. Archbp. of Cant. 2 Esp. 646.* ' 15 Eng. Com. Law Reps. 387. " 6 Id. 452. » 7 Id. 379. » 15 Id. 295. * Though, in England, the shop-book of a tradesman is not evidence of a debt, Admissions. 25 ADMISSIONS. The express admissions of a party to the suit, or admissions impUed from his conduct, are strong evidence against him ; but he is at li- berty to prove that such admissions were mistaken or untrue, and is not estopped or concluded by them, unless another person has been induced by them to alter his condition ; in such case the party is estopped from disputing their truth, with respect to that person and those claiming under him in that transaction, but as to third persons he is not bound. Per Bmjley, J. Heane v. Rogers, 9 B. and C. 586.P An acknowledgment of a party's hand-writing, though made pending a treaty of compromise, is evidence against him. Wald- ridge v. Kennison, I Esp. 143. So facts admitted before arbitra- tors. Gregory v. Howard, 3 Esp. 113. Doe v. Evans, 3 C. and P. 219.1 An offer of a specific sum by way of compromise is admissi- ble, unless accompanied with a caution that the offer is confidential. Wallace v. Small, 1 M. and M. 446 ; Watts v. Lawson, Ibid. 447 (n); but see Slack v. Buchanan, Peake, 5. An answer to a bill in Chancery filed against the defendant by a stranger, may be read to show the admission of a particular fact, though it is not evidence of a judicial proceeding. Grant v. Jackson, Peake, 203. The ex- amination of a party, signed by him, before commissioners of bank- rupt is evidence against him, though part only of his depositon was noted down. Milward v. Forbes, 4 Esp. 172. So testimony given in court, admitting a particular fact, may be used in an ac- tion against the witness, though he was prevented from entering into an explanation of the circumstances under which the fact took place, it being irrelevant. Collett v. Lord Keith, 4 Esp. 212. An inventory exhibited by an administrator in the Ecclesiastical G)urt, is evidence of assets to the amount stated. Rickey v. Haij- ter, 1 Esp. 313. An acknowledgment by a defendant that his trade is a nuisance is admissible, though not conclusive evidence against him, on an indictment for carrying on the same trade in another place. R. v. Neville, Peake, 91. If A.- having title to pre- mises in the possession of B. suffer B. to make alterations inconsist- ent with such title, it is evidence to go to the jury that A. has re- cognised the right of B. Doe v. Pye, 1 Esp. 3G4. So where upon a building lease of £9 feet, more or less, the lessee takes sixty-two feet and a half, but the ground taken agrees with the abuttals in the lease, and the lessor sees the progress of the building without objection, this is evidence to go to the jury of an acquiescence. Neale v. Parkin, 1 Esp. 229. In an action on a bill of exchange. our tradesmen do not keep clerks, the book, proved by the oath of the plaintiU himself, has always been admitted. ' Poullney v. Ross, 1 Dall. 238. But such evi dencc is not to be extended beyond former limits. Thompson v. MElvey, 13 6'erg and It. 126. p 17 Eng. Com. Law Reps. 449. < 14 Id. 278. 4 26 Admissions. evidence of an admission by the plaintiff, that he had no interest in the suit, is a ground of nonsuit. MS. Archb. PI. and Ev. 346. So an admission by the lessor of the plaintiff, in ejectment, that he had assigned his interest in the premises. Boe v. I'Vatson, 2 Stark. 230.'" Letters written by a party are evidence against him, without pro- ducing those to wbich such letters are answers. Lw^d Bai~njniore V. Taylor, 1 Esp. 326, The contents of a written instrument can- not be proved against a party by his admission, unless the non-pro- duction of it be accounted for. Bhxam v. Elsie, R. and M. 187. So an admission in an answer in Chancery of the execution of a deed, is only secondary evidence, and does not supersede the neces- sity of proving it in the regular way. Call v. Dunning, 4 East,t53. Cunlijfe v. Sefion, 2 East, 187, 188. But see Boivles v. Langwor hy, 5 T. R. 366. But this objection does not apply where the party enters into an admission with a view to the trial of the cause. 2 Stark. Ev. 37. A declaration by the payee of a note payable on de- mand (the note being then in his possession,) that he gave no con- sideration for it to the maker, is not admissible in an action by an indorsee against the maker, the payee being alive. Barough v. White, 4 B. and C. 325.^ S77iith v. De Wruitz, R. and M. 212. Admissions may sometimes be presumed from the silence of a party, when certain statements are made ;* but the deposition of a witness, taken in a judicial proceeding against a party, is not evi- dence in another proceeding against that party, on the ground that he had been present, and had not cross-examined the witness. Me- len V. Andreics, 1 M. and M. 336. A notice signed by partners, stating that the partnership " has been dissolved," is evidence against them of the dissolution, though the partnership was by deed. Doe v. Miles, 1 Stark, 181.* 4 Camp. 373. S. C. Receipts.'] The acknowledgment in a deed of the receipt of mo- ney, is conclusive evidence, against the party executing the deed, of such receipt. Baker v. Dewey, 1 B. and C. 704." Roivntree v. Ja- cob, 2 Taunt. 141. Bid see Stratton v. Rastall, 2 T. R. 366. But such receipt will not be conclusive, if the recitals of the deed show that the money is not paid. Lampon v. Corke, 5 B. and A. 607.'' 1 D. and R. 211. S. C. Nor is the receipt indorsed on the back of a deed conclusive. Per Holroyd, J. 5 B. and A. 611.'' In general, a receipt not under seal, is only a prima facie acknowledgment that the money has been paid Skaife v. Jackson, 3 B. and C. 421.* Though it has been ruled, both by Lord Kenyon and Lord Ellenbo- rough, that a receipt in full of all demands given with a knowledge of all the circumstances, is conclusive. Bristow v. Eastman 1 Esp. ' 3 Eng. Com. Law Reps. 328. » 10 Id. 345. « 2 Id. 347. « 8 Id. 193. » 7 Id. 206. ^ 7 Id. 207. ^ 10 Id. 137. * Nothing can be more dangerous than this kind of evidence. It should always be received with caution, and never ought to be, unless the evidence is of that kind which naturally calls for contradiction; some assertion made to the man with respect to his right, which by his silence he acquiesces in. Per Duncan J. in Moore v. Srr^ith, 14 Serg. and R. 393. Jldmissions. 27 172. Abler v. George, 1 Campb. 392. As between the underwri- writer and the assured, the acknowledgment in the policy of the receipt of the premium is conclusive. Dalzell v. Main, 1 Campb. 532. If an agent employed to receive money, and bound, by his duty to his principal, from time to time communicate to him whe- ther the money is received or not, renders an account, from time to time, which contains a statement (hat the money is received, he is bound by that account, unless he can show that the statement was made unintentionally, and by mistake. Per Bayley, J. Shaio v. Pic- ton, 4 B. and C. 12^JJ. A receipt does not exclude parol evidence of the payment. Per Lord EHenborough, Rambert v. Cohen, 4 Esp. 213. Where the plaintiff entered an account in writing of goods and cash furnished to the defendant from time to time, each page of which was authenticated by the defendant's acknowledgment in writing, of the receipt of the contents, it was held, that though such an acknowledgement in writing could not be given in evidence, per se, in respect of the cash items amounting to above 40^. in each page, for want of receipt stamps, yet that it v.'as competent to the plaintiff to prove, that upon calling over each article to the defend- ant, he admitted that he had received the same, and that the wit- ness might refresh his memory by referring to the accounts. Jacob V. Lindsay, 1 East, 460. Admissions of particular character, and admissions made in a particular character.'] The character in which the plaintiff sues, or in which the defendant is sued, is frequently proved by the de- fendant's admissions. Thus, if B. has dealt with A. as farmer of the post-horse duties, it is evidence in an action by A. against B., to prove that he is such farmer. Radford v. Mackintosh, 3 T. R. 632. A7id see.Peacock v. Harris, 10 East, 104. So in an action for slandering the plaintiff in his profession of an attorney, the words themselves importing that the defendant would have the plaintiff struck off the roll of attornies, were held to be an admis- sion of the plaintiff's character as attorney. Berryman v. Wise, 4 T. R. 366. Pearce v. Whale, 5 B. and C. 39.^ Atid see Smith v. Taylor, 1 JV. R. 196. So an admission by a defendant that a third person has become bankrupt, (as where an auctioneer advertised for sale " the property of J. S. a bankrupt,") is evidence of the title of the assignees, in an action brought by them against the defend- ant. Maltby v. Christie, 1 Esp. 340. Booth v. Coward, 1 B. and A. 677 ; and see post, " Actions by assignees of bankrupts.''^ So where the defendant, vi'ith a view to obtaining a commission against the party, swore to an affidavit stating that he had become bankrupt. Ledbetter v. Salt, 4 Bingh. 623, " 1 M. and P. 597, 8. C. And see Harmer v. Davis, 7 7au.nt. 577." So it has been held that a bank- rupt who has petitioned for his discharge under stat. 49 Geo. III. c. 121. s. 14, cannot, in an action against his assignees, dispute the T 10 Eng. Com. Law Reps. 443. « 11 Id. 1,38. • 15 Id. 91. " 2 Id. 223. 28 Mmissions. validity of the commission. Watson v. Wace, 5 B. arid C 158. Sec also Clarhi v. Clarke, G Esf. 01, Like v. llon-e, Esp. 20. But where the admission that he has become bankrupt, is made in the course of a transaction with third persons, the bankrupt is not thereby estopped from showing, in an action against his assignees, that he lias not become bankrupt, lleane v. Rogers, 9 B. and C. 577.'' Nor is he precluded from disj)uting (he commission by sur- rendering, or by petitioning the Chancellor to enlarge the time for surrendering. Mercer v. Wise, 3 Esp. 219. So as against a credi- tor the merely proving a debt under ihe commission is not such an admission as will dispense with the regular proof of the bankrupt- cy. Rankin v. Horner, 10 East, 191. In the case of peace-officers, justices of the peace, constables, &!.c., it is sufficient to prove that they acted in those characters, without producing their appoint- ments. Per BuUer, J., Berryman v. Wise, 4 T. R. oGG. So in an information against a military officer, for false musters, the returns in which he described himself to be such officer are evidence of the fact. R. V. Gardner, 2 Cajtipb. 513. So also in an action for pe- nalties against a collector of taxes, proof of the defendant having collected the taxes is sufficient proof of his being collector, though the appointment is by warrant under an act of parliament. Lister V. Priestley, Wightir. 07. In an action by assignees of a bankrupt, admissions made by them before their appointments are inadmissible. Fenwick v. Thornton, 1 M. and M. 5J. So an admission by one of several trustees will not bind his co-trustees. Davies v. Ridge, 3 Esp. 102. And an admission by an individual of a corporation will not bind the corpo- rate body. Mayor of London v. Long, 1 Camj)b. 23. Admissions by persons, not parties to the suit, but interested.'] An admission is evidence, whether made by a nominal party who sues for the benefit of another, Bauerman v. Radenius, 7 T. R. 004, or by the person really interested, but not named on the record. R. v. Hardwick, 11 East, 578. Thus, in an appeal, declarations by the ra.ted inhabitants of either parish are admissible, for they are in fact parties, though the appeal is entered in the names of the parish officers. Ibid. So in an action on a bond conditioned for the pay- ment of money to L. D., the declaration of L. D. that the defend- ant owes nothing is evidence. Hanson v. Parker, I Wils. 257. So in an action by the master of a ship for freight, brought for the be- nefit of the owner, the admissions of the latter are evidence. Smith V. Lyon, 3 Camph. 405. So in actions on policies, the declarations of the parties really interested. Per Lord Ellenborough, Bell v. Ansley, \Q East, 143. So in an action against the sheriff, the de- clarations of a party who has indemnified the sheriflT, are evidence against the defendant. Duke v. Aldridge, cited 7 T. R. 005. So again in trover for a deed which the defendant admitted he detained 11 Eng. Com. Law Reps. 187. J 17 Id. 449. Mmissions. 29 at the request of W. R., and in the detainer of which W. R. was substantially interested, the declarations of V»'. R. in favour of the plaintiff's claim are admissible. Harrison v. Vallance, 1 Bingli, 45 ;« and see Rohson v. Andradc, 1 Stark. 372/ But in an action for con- tribution, by one of several sureties in a bond, against another, the declarations of the obligee as to payments, not made at the time of payment, are inadmissible. Dunn v. See Holt, 401.s Admissions hy guardian andprochein amy.'] The admissions of a guardian are not evidence against an infant who sues hy his guardian. Cowling v. Ely, 2 Stark, 366. "^ And. so of the admission of prochein amy. Webb v. Smith, R. and M. 106. . Admissions by agents.] Where a party to the suit constitutes a third person his agent for the purpose of the admission, the adnriis- sion so made is evidence. Thus if a person agrees to admit a claim, provided J. S. will make an affidavit in support of it, such affidavit has been ruled to be conclusive. Lloyd v. Willan, 1 Esj). 178. Ste- vens V. Thacker, Peake, 187. But to render such an affidavit conclu- sive, the evidence should be very clear. Garneit v. Ball, 8 Stark. 160.' So if the vendee of goods denies having received them, but adds, '' If the carrier's servant says he delivered the goods, I will pay you," the answer of the servant, when applied to on the sub- ject, may be given in evidence after his death. Daniel v. Pitt, 1 Campb. 366 {n.) So where an executor refers a creditor of the testator to J. S. for information respecting the assets, the admission of J. S. is evidence, and he need not be called. Williams v. Dines, 1 Caynpb. 364. So where a party heing applied to for payment says, " A. will pay you," an admission by A. is sufficient to bind the principal, and A. need not be called. Burt v. Palmer, 5 Esi). 145. With regard to the admissions of agents in general, the rule is this : When it is proved, that A. is agent to B., whatever A. does or says, or writes in the making of a contract as agent of B., is admissible in evidence, because it is part of the contract which he makes for B., and which therefore binds him, hut it is not admissible as the agent's account of what passes. Per Gibbs, J. Langliorne v. Allnut, 4 Taunt. 519. Thus the declaration of a servant employed to sell a horse, is evidence to charge the master with a warranty, if made at the time of sale ; if made at any other time, the facts must he proved by the servant himself. Helycar v. Hawke, 5 Esp. 72; and see Peto v. Hague, 5 Esp. 134. But the admissions of an agent not made at the time of the transaction, but subsequently, are not evi- dence ; thus the letters of an agent to his principal, containing a narrative of the transactions in which he had been employed, are not admissible in evidence against the principal. Ibid. Kahl v. Jan- son, 4 Taunt. 565, and see Fairlie v. Hastings, 10 Fes. 128. Be- ' 8 Eng. Com. Law Reps. 239. '2 1(1.432. 53 Id. 140. ^3 id. 385. i 14 Id. 174. 30 Admissions. iham v. Benson, 1 Gow, 45." But a letter from an agent abroad sta- ting the receipt of money, coupled with the answer of the principal directing tlic disposition of the money, will be evidence of the re- ceipt by tlic principal. Coalcs v. Bainhridge, 5 Bingli. 58.' It is said to have been ruled at nisi prius, that where A. had ordered goods of B. to be delivered to C, an acknowledgment of the receipt by C. was evidence against A., Biggs v. Laurence, 3 T. R. 454 : but Lord Kcnyon frequently ruled the contrary ; see Bauerman v. Radenius, 7 T. R. G65. 10 Fes. 128, in which he was followed by Lord Ellenborough. Evans v. Beattie, 5 Esp. 26 ; a7id see Bacon v. Chesney, 1 Stark. 192." The admission by an under-sheriif of an escape is evidence against the sheriff; Yahsley v. Dohle, 1 Ld. Ray??i. 190, and see Drake v. Sykes, 7 T. R. 117 ; and the admis- sions of a bailiff are evidence against the sheriff, like the statements of any other agent, when they form part of the transaction. North V. Miles, 1 Camph. 389. The admissions of a surveyor to a corpo- ration respecting a house belonging to the corporation, are admis- sible against the latter. Peyton v. Governor of St. TJiomas'' s hospi- tal, 3 C. and P. 363." In all cases, before the admissions of an agent can be given in evidence, the fact of his agency must be proved, and evidence that the party has acted as agent in other instances, in which the principal has recognised his acts, will be evidence of a general authority. Ncale v. Irving, 1 Esp. 61. Watkins v. Vince, 2 Stark. 368.P It must appear that the admission was made with regard to a matter within the scope of the agent's authority. Schumack v. Lock, 10 B. Mom^e, 39.1 Admissions by counsel or attorney.'] Where, after a verdict sub- ject to a special case, a new trial has been directed, the special case, signed by the counsel on each side, is evidence of the facts there stated. Van Wart v. Wolley, R. and M. 4. An admission made by an attorney of one of the parties to prevent the necessity of proving a fact on the trial, is sufficient evidence of that fact ; Young v. Wright, 1 Camph. 141 ; as where he admits the handwri- ting of the attesting witness, it is sufficient proof of the execution of a deed ; Milward v. Temple, 1 Camph, 375 ; and see Truslove v. Burton, 9 B. Moore, 64 ;"" but statements made by the attorney in the course of conversation are not admissible. Young v. Wright. 4 Camph. 140. Admissions made by the defendant's attorney re- specting the plaintiff's demand (the attorney refusing to bfe exam- ined) are evidence against the defendant, and proof that they were made by the attorney on the record, will be sufficient to establish his agency. Gainsford v. Grammar, 2 Camph. 9. An undertaking to appear " for Messrs. T. and M., joint owners of the sloop A.," given by the attornev on record, in evidence of the joint ownership. Marshall v. Cliff, 4 Camp. 133. k 5 Eng. Com. Law Reps. 454. ' 5 Id. 368. » 2 Id. 352. » 14 Id. 349. p 3 Id. 386. q 17 Id. 133. ' 17 Id. 121. Admissions, 31 ' Admissions by partner.'] After primd facie evidence of partner- ship, the declaration of one partner is evidence against his copart- ners: Nicholls V. Doicding, 1 Stark. 81 ;' though the former is no party to the suit; Wood v. Bradick, 1 Taunt. 104; but see Booth V. Jauney, 7 Price, 198 ; and it is evidence, though made after the dissolution of the partnership, if made as to a transaction which took place before the dissolution, ibid. ;* but not to bind his co- partner as to a transaction which occurred previously to the part- nership, unless a joint responsibiUty be proved as a foundation for the evidence. Catt v. Howard, 3 Stark. 3/ A declaration by one of several partners, joint plaintiffs, that the goods, the subject mat- ter of the suit, were his separate property, is evidence against all the plaintiffs ; Lucas v. Delacour, \ M. and S. 249 ; but an admission by a partner as to a subject not of copartnership, but of conjoint ownership in a vessel, is not binding on his copartner. Jaggers v. Bennings, 1 Stark. 64." Admissions by ivife-l In general, the admissions of theAvife will not bind the husband. Thus the wife's receipt for wages earned by her is not evidence against the husband. Hill v. Hill, 2 Str. 1094; and see Alban v. Pritchett, 6 T. R. 680. But where the wife can be considered the agent of her husband, her admissions may be received as evidence against him. Emerson v. Blonden, 1 Esj). 142. Anderson v. Sanderson, 2 Stark. 204.^ Holt, 591. S. C.^ Thus in an action for goods sold and delivered at the defendant's shop, an offer made by the wife to settle the demand is admissible in evidence, she being accustomed to serve in the shop, and to transact the business in her husband's absence. Clifford v. Biirton, 1 Birig. 199.^ 8 B. Moore, 16. S. C. So in an action against the husband for goods sold, an acknowledgment by the wife, (who ma- naged the business, and generally gave orders and paid for goods,) within six years, was held sufficient to take the case out of the sta- tute of limitations. Palethorpe v. Furnish, 2 Esp. 511 (?i). Where the conduct of the wife is in question, her declarations have been held admissible for her husband in an action against him. Thus in an action for necessaries supplied to the wife, the defence being that the husband had turned her out of doors for adultery, her declara- tions as to the adultery, made previously to her expulsion, were ad- mitted by Abbott C. J. Walton v. Green, 1 C. and P. 621.^ Admissions by payment of money into Court^ Payment of mo- ney into court by the defendant, is an admission that the plaintiff has a legal demand to the extent of the money brought in ; Black- burn V. Scholes, 2 Campb. 341 ; but not beyond that extent ; and • 2 Eng. Com. Law Reps. 305. « 14 Id. 143. » 2 Id. 297. »3Id. 314. " 3 Id. 190. "^ 8 Id. 294. y 1 1 Id. 498. * The acknowledgment of a debt by one partner, after a dissolution of the co- partnership, is not sufficient to take the case out of the statute of limitations as to the otherpartners. Betl v. Morrison, 1 Peters Rep. 352. 32 Jldmissions. therefore the payment into court upon a count on a valued policy, in which the loss is averred to be total, is no admission of a total loss. Rucher v. Palsgrave, 1 Catnpb. 557. 1 Taunt. 419, S. C. Where there is a special contract, the payment into court admits that contract ; but where, as in the common indebitatus assumpsit, the demand is made up of several distinct items, the payment ad- mits no more than that the sum paid in is due. Per Gaselee J. Sea- ion V. Benedict, 5 Bingli. 32.'' It is a conclusive admission of the character in which the plaintiff sues ; Lipscombe v. Holmes, 2 Campb. 441 ; and of the plaintiff's right to sue in the court in which the action is brought. Miller v. Williams, 5 Esp. 19. In an ac- tion oh a bill of exchange, it admits the handwriting of the parties ; Gutteridge v. Smith, 2 H. B. 374; and the sufficiency of the stamp. Israel v. Benjamin, 3 Campb. 40. In an action on a guarantee, the payment of money into court, on a plea of tender, admits an agree- ment signed according to the statute of frauds. Middleton v. Brew- er, Peake, 15. In an action of covenant, it admits the execution of the deed; Randal v. Lynch, 2 Campb. 356, 357; and where two breaches are assigned in one count, payment into court on one of the breaches is an admission of the whole contract, as set out in that count, so as to enable the plaintiff to recover on the second breach without proof of the contract. Dyer v. Ashton, 1 B. and C. 3." It admits a contract for goods sold and delivered, where the goods were tortiously converted by the defendant, and the plaintiff has declared for goods sold and delivered. Bennet v. Francis, 2 B. and P. 550, 4 Esp. 28, S. C. In an action for goods sold by sample at a stipulated price, after payment of money into court, the de- fendant cannot insist on the inferiority of the goods. Leggatt v. Cooper, 2 Stai'L 103.'' Where the declaration states a contract to pay a particular sum of money for certain articles, payment of part of the money into court, by admitting the contract, admits also the sum originally due ; and the only question is, whether the remain- der of the money had been previously paid ; Cox v. Brain, 3 Taunt. 95, 2 B. and A. 118 ; but where the declaration is for goods sold, to be paid for at the average price, to be ascertained on a day speci- fied, payment into court does not admit the average price to be as stated in the declaration ; Stoveld v. Brewer, 2 B. and ^.116; see also Everth v. Bell, 7 Taunt. 450 ;" and payment of money into court on several counts, one of which only is applicable to the plain- tiff's demand, admits a cause of action on that count only. Per Best C. J. Stafford v. Clark, 2 Bingh. 383.* In an action against a carrier for not carrying goods safely, if the defendant has restricted his liability by a notice. that he will not be accountable for more than 5/. (unless entered and paid for accordingly), the payment of 5/. into court does not admit a liability beyond that sum. Clarke v. Gray, G East, 570. Yate v. Willan, 2 East, 128, and see 1 PhilL Ev. 178. Where the defendant pleads the general issue, and the » 15 Eng. Cora Law Reps. 354. » 8 Id. 4. b3ld.266. '2 Id. 171. ^9^437. Jldmissions. 33 statute of limitations, and pays money into court generally, such payment does not take the case out of the statute. Long v. Greville, 3 B. and C. 10/ If the plaintiff declares on an illegal contract, the defendant cannot give it validity by his admission ; and if money is paid into court generally, and the plaintiff insists on several claims, some legal and others illegal, the court will apply the pay- ment to the legal claim. Ribbans v. Crichett, 1 B. and P. 264. If the plaintiff misleads the defendant, and induces him to suppose that the only point to be tried is a question of fraud, the court will not permit him to take advantage of the payment of money into court, so as to exclude evidence of the fraud. Midler v. Hartshorn, 3 B. and P. 556. Payment of money into court must be proved by the production of the rule of court. Israel v. Benjamin, 3 Campb. 40. Admissions by recital.'] A recital in a deed is evidence against him who executed the deed, or any person claiming under him. Com. Dig. Evid. {B. 5.), and see Bees o. Lloijd, JVightw. 123. Thus the recital of a lease in a release is evidence of the lease against the releasor and those claiming under him. Ford v. Grey, 1 Salk. 286; but see Peake, Ev. 108, 5th edit. So in trespass against a sheriff, a bill of sale reciting the writ, the taking, and the sale of the goods, is evidence against him of those facts. Woodward v. Lark- ing, 3 Esp. 286. So the recital of an ancient charter in a modern charter is evidence. Per Abbott, J. Gervis v. the Grand Western Canal Comp. 5 M. and S. 78. The recitals in a deed may confine the effect of other admissions in the same instrument. Lampon v. Corke, 5 B. and A. 607.^ 1 D. and R.2n, S. C. Admissions on the j'ccord.'] Whatever is admitted on the record need not be proved, and cannot be disproved ; B. JV". P. 298 ; but an admission as to one of several issues, does not operate as an admission to any other. Harrington v. Macm&rris, 5 Taunt. 228.« Whatever is pleaded and not denied, shall be taken to be admitted. Wimbish v. Tailbois, Plow. 48. Thus if the defendant in replevin avow the taking of che cattle, damage feasant, in the locus in quo as parcel of the manor of K., and the plaintiff make title to the manor of K., and traverse that the manor is the freehold of the de- fendant, he cannot afterwards prove that K. is no manor, for that is admitted by the traverse. B. JV. P. 298. If the defendant in covenant do not plead non est factum, the execution of so much of the deed as is expanded on the record is admitted ; but if the plain- tiff wish to avail himself of any other part of the deed, he must prove it by the attesting witness in the usual way. Williams v. Sills, 2 Campb. 519. In an action by an executor or administrator on a cause of action arising in the lifetime of the testator or intestate, a plea of the general issue admits the title of the plaintiff to sue as executor or administrator. Marsfield v. Marsh, 2 Ld. Raym. 824. • 10 Eng. Com. Law. Rep«. 5. f 7 Id. 205. «1 Id. 88. 5 34 j'lil miss ions. Thynne v. Protheroc, 2 J\I. and S. 553. But where the cause of action arises in the time of the executor or administrator, the gene- ral issue docs not admit his title, and the plaintill' must prove it. Thus where the plaintiirdcclarcs in trover upon a possession by his testator, and a conversion in his own time, pleading the general is- sue does not admit his title as executor. Hunt v. Stevens, 3 Taunt. 113; hut see Watson v. King, 4 Camph. 2'7'2. The plea of the general issue admits only such a title as is stated in the de- claration, and therefore where profert is made of letters of admi- nistration which do not establish the plaintiff's claim to recover in the action, the plea of the general issue will not admit the title of the plaintilfso far as to enable him to recover.* Adams v. Savage, 6 Mod. 134. In an action by husband and wife, the plea of the general issue admils the marriage. B. J\] P. 20. The plea of pay- ment, in debt by assignees of a bankrupt upon a bond, admits their title as assignees. Corsbie v. Oliver, 1 Stark. 62." f Where, in trespass, the defendant pleads an entry to abate a nuisance and the plaintiir new assigns unnecessary violence, the nuisance is ad- mitted and the plain tilT cannot go into evidence to negative it. Pickering v. Rudd, 1 Stark. 50.' 4 Ca/nph. 219, S. C. A demurrer to a bill in equity does not admit the facts so as to be evidence against the defendant in another action between the santie pzirties. Tomkins v. Ashbij. 1 M. and JM. 32. Suffering a judgment by default is an admission on the record of the cause of action. Thus in an action againt the acceptor of a bill, the defendant, by suffering judgment, admits a cause of action to the amount of the bill. Green v. Hearne, 3 T. R. 301. So in an action on a contract, the defendant cannot, after a judgment by default, insist upon the fraud of the plaintiff! East India Company V. Glover, 1 Str. 612. But where an action is removed by habeas corpus from an inferior court, after judgment by default, that judgment is not evidence against the defendant in the superior court. Bottings v. Firhy, 9 B. and C. 762.*^ So a demurrer ad- mits the facts; and on a writ of inquiry after judgment for the plaintiff, the amount of the damages is the only question. De Gu- illen V. VAigle, 1 B. and P. 368. Whole admission to he taken together.'] The whole of an admis- sion must be taken together, and therefore where an account ren- dered by the defendant is produced to establish the plaintiff's de- mand, it is evidence to prove both the debtor and creditor side of the account. Randle v. Blackburn, 5 Taunt. 245.' Thomson v. Austen, 2 D. and R. 361.- Fletcher v. Froggatt, 2 C. and P. 569." The assertion of a party in conversation, given in evidence against him, of facts in his favour, is evidence for him of those facts. k 2 Eng.Com. Law Reps. 303. • 2 Id. 293. " 17 Id. 492. ' 1 Id. 92. » 16 Id. 94. " 1-2 Id. 267. * In a suit by a corporation, a pica to the merits is an admission of the plain- tiff's capacity to sue. Conard v. Atlantic Ins. Co. 1 Feters, 450. Admissions. 35 Smit?i V. Blandy, R. and M. 257. But though the defendant is en- titled to have the whole of the particular entry in a book read, yet he cannot insist upon reading distinct entries in different parts of the book. Catt v. Howard, 3 Stark. 6." See also Rernmie v. Hall, Mann. Index. 376. Roe v. Ferrars, 2 B. and P. 548. Admissions compulsory.] An admission made in the course of an examination under compulsory process, as before commissioners of bankrupt, is evidence against the party making it. Robson v. Alexander, 1 B. and P. 448. Smith v. Beadnell, 1 Camp. 30 Slochjleth V. De Tastet, 4 Camph. 10. So upon compulsory pro- cess from the House of Commons. R. v. Merceron, 2 Stark. 366.» But if the party was imposed upon when he signed the examina- tion, or was under duress, he will not be bound by it. Per Ld. El- lenhorough, Stockfleth v. De Tastet, 4 Campb. 4 ; and see Tucker v. Barrow, 7 B. and C. 623,'^ 1 M. and R. 518. S. C. OBJECT OF EVIDENCE. The object of evidence is to prove the point in issue between the parties, and, in doing this, there are three rules to be observed: 1. That the evidence be confined to the point in issue. 2. That the substance of the issue only need be proved ; and, 3. That the affir- mative of the issue is to be proved. EVIDENCE CONFINED TO THE ISSUE. Surplusage.] Where an averment may be wholly rejected as surplusage, it need not be proved, as the proof of it would not tend to the decision of the point in issue. The rule with regard to the proof of averments is, that if the whole of an averment may be struck out without injuring the plaintiff^'s right of action, it is not necessary to prove it ; but it is otherwise, if the whole cannot be struck out without getting rid of a part essential to the cause of action; for there, though the averment be more particular than it need have been, the whole must be proved, or the plaintitf cannot recover. Per Lawrence, J. Williamson v. Allison, 2 East, 452. Thus, where the plaintifF, in an action on a warranty of goods, al- leged that the defendants knew the goods to be unfit for sale, it was held, that the allegation of knowledge being immaterial, need not be proved. Ibid. But, where the plaintiff", in an action against the sheriflf for taking a tenant's goods in execution without leaving « 14 Eng. Com. Law Reps. 143. n 3 Id. 385. i 14 Id. 103- 36 Evidence confined to the Issue, a year's rent, stated the terms with more particularity than was necessary, it was held, that they nuist be proved as laid. Bristmu V. Wnght, Dough 640, 665. Evidence of collateral facts, when admissihle.'\ In general, evi- dence of collateral facts is not admissible. Thus where the ques- tion was as to the quality of beer to be furnished by the plaintiffs to the defendant, it was lield that evidence could not be admitted of the quality of beer supplied by the plaintiff to other persons. Holcombe v. Heivson, 2 Campb. 391. But where a collateral fact is material to the proof of the issue joined between the parties, evidence of such fact is admissible. Thus, in order to prove that the acceptor of a bill knew the payee to be a fictitious person, or that the drawer had a general authority from him to fill up bills with the name of a fictitious payee, evidence may be adduced to show that he had accepted similar bills before they could, according to their date, have arrived from the place of date. Hunter v, Gib- son, 2 H. Bl. 288. But, in an action against the acceptor of a bill who defends on the ground of forgery, evidence that the person suspected of the forgery, has forged the defendant's name in other instances, is inadmissible. Balutti v. Serani, Peake, 142. Graft v. Lord Brownlow Bertie, J\I. S. Peake Ev. 111. Viney v. Barss, 1 Esp. 293. Proof of a customary right in a particular manor or parish is no evidence as to the customary rights in an adjoining parish or manor; Duke of Somerset v. France, I Str. 661 ; but where all the manors in a particular district are held under the same tenure, and a question arises in one of the manors as to an incident to the te- nure, evidence may be given of the usage prevailing in any other of the manors within the district. Ibid. Champian v. Atkinson, 3 Keb. 90, R. V. Ellis, 1 M. and S. 662. So where, in each of several manors belonging to the same lord, and part of the same district, it appeared that there was a class of tenants answering the same de- scription, and to whom their tenements were granted by similar words, it was held that evidence of the rights enjoyed by those te- nants in one manor might be received to show what were their rights in another. Roue v. Brenton, 8 B. and C. 758.'' So proof of the manner in which a particular trade is carried on at one place is evidence as to the course of that particular trade in another place. JVoble v. Kennoiray, 2 Dough 510. Upon a question of skill and judgment evidence may be given of facts, which, although in other respects collateral, are, by means of the skill and judgment of the witness, connected with, and tend to elucidate the issue. Folkes V. Chad. 1 Philh Ev. 276. 3 Dough 167, S. C. Where the question was as to the right to certain trees growing in a woody belt of considerable extent, entire and undivided, evidence was ad- mitted of several acts of ownership in different parts of the belt ; ' 15 Eng. Com. Law Repa. S35 Evidence confined to the Issue. 37 Stanley v. White, 14 East, 822; but in trespass by the proprietors of a canal, it was held, that evidence of acts of ownership by the proprietors on other parts of the banks than those in question was not admissible to prove property, without shewing them to be part of one entire district, or that they had belonged to one person. Hollis V. Goldfinch, 1 B. and C. 205,' and see Tynchit v. Wynn, 2 B. and A. 554. In an action by a rector for tithes, where the question is, whether a modus exists of a certain sum of money for a parti- cular farm in a township within the parish, and the ecclesiastical and parliamentary surveys are silent as to any township or farm modus, after proof by the defendant of a uniform payment in lieu of tithes, the plaintiff" may inquire whether other farms in the same township are not subject to the same payment, for the purpose of showing that such payments cannot be a modus, consistently with the evidence previously adduced. Blundell v. Howard, 1 M. and S. 292. 1 Phill Ev. 164. Evidence of special damage.'] Where the special damage sus- tained by the plaintiff" is not stated in the declaration, it is not one of the points in issue, and evidence of it cannot be received. But a damage which is the necessary result of the defendant's breach of contract may be proved, although not alleged in the declaration. See Ward v. Smith, 11 P7ice, 19, Special damage must be stated with certainty. Thus, where in an action for an irregular distress, it was averred that the plaintiff) in consequence of the injury, had lost divers lodgers, without naming any. Lord Ellenborough rejected evidence of the damage, because the names of the lodgers were not specified. Westwood v. Coicne, 1 Stark. 172.* Where it was alleged as special damage that the plaintiff" lost her marriage with J. N., Holt, C. J. refused to let evidence be given of a loss of mar- riage with any other person. Martin v. Henrickson, 2 Ld. Raym. 1007 ; and see post, " Case far defamation.''^ Evidence of character.] In general, evidence as to the charac- ter of either of the parties to a suit is inadmissible, it being foreign to the point in issue. Thus, in an action for slander, imputing dis- honesty to the plaintiff", he cannot adduce evidence in the first in- stance of good character. Cornwall v. Richardson, R. and M. 305. So also it has been held, that the plaintiff'in an action for crim. con. or seduction, cannot give evidence of the good character of the wife or daughter, until evidence has been offered on the other side to im- peach it ; Bamfield v. Massey, 1 Campb. 460 ; and, if such evidence be not general, but go only to a specific instance, it has been ruled, that the plaintiff cannot, in reply, give evidence of general cha- racter, but must be restricted to the disproving of the specific in- • 8 Eng. Com. Law Reps. 62. '2 Id. 342. 38 Evidence confined to the Issue. stance. Ihid. hut see 2 Phill 205, 2 Stark. Ev. 371. Where the cross examination of the plaintiff's witnesses has been directed to impeach the character of the plaintiffj and the witnesses deny the imputation intended, proof of the plaintiff's good character is not adniissible. King v. Francis, 3 Esjy. IIG. See Bate v. Hill, 1 C. and P. 100." liut evidence of the party's bad character is admitted in some actions, with a view to the amount of damages. Thus, in actions of crim. con. evidence is admissible of the wife's bad character for chastity, and even of particular acts of adultery committed by her before her intercourse with the defendant ; for, by bringing the ac- tion, the husband puts her general behaviour in issue. B. JV. P. 27, 296. So of the husband's profligacy, and of his criminal connexion with other women. Ibid. So in slander, it was formerly held, that where the defendant does not justify, evidence might be given of the plaintiff's bad character, as that at the time of the supposed offence, the plaintiff was generally suspected of the crime imputed to him ; v. Moor, 1 M. and S. 284, Lord Leicester v. Walter, 2 Campb. 251 ; but it has since been decided, that general evidence of the plaintiff's bad character is inadmissible in mitigation of damages. Jones v. Stevens, 11 Price, 235. See further as to the character of witnesses, post. Particulars of plaintiff^s demand.'] Where the plaintiff has delivered a bill of the particulars of his demand, he will be pre- cluded from giving any evidence of demands not contained in his particular. Thus, where the particular states a demand for horses sold by the plaintiff to the defendant, evidence cannot be given of money due from the defendant for horses sold by him as the plain- tiff 's agent. Holland V. Hopkins, 2 B. and P. 243. But in an action against an agent for not accounting for gooods delivered to the plain- tiff to be sold, and for goods sold, and money had and received, par- ticulars headed " A. to B. tierces of porter, &c. I. " and containing also items for money had and received, were held to be applicable to any of the counts in the declaration. Hunter v. Welch, 1 Stark. 224.^ So in an action by a carrier who had misdelivered certain goods to the defendant, which the latter appropriated to his own use, the carrier having paid the amount of the goods to the real owner, it was held that he might recover on the count for money paid, although his particulars were only " To seventeen firkins of butter, 55/. 6s." Brown v. Hodgson, 4 Taunt. 189. Where the particulars contain a demand on a promissory note only, which could not be given in evidence for want of a stamp, it was held, that the plaintiff could not give evidence of the consideration of the note. Wade v. Beasley, 4 Esp. 7. Where a particular need not be given as to some counts, the omission of those causes of ac- " 11 Eng. Com. Law Reps. 329. ' 2 Id. 365. Evidence confined to the Issue. 39 tion will not be material. Thus, where the first count was on a bill of exchange for 40/., and the second on a bill for 20/., and the third for goods sold, and the particulars specified only the 20/. bill and the goods, per Abbott, C. J. " That is no objection. If the bill is specified in the declaration, it need not be mentioned in the par- ticulars. You must give a particular of goods sold, but you never need give a particular of bills of exchange, if they appear in the declaration." Cooper v. Ajnos, 2 C. and P. 267.* The plaintiff may recover interest, though the particular only contains a demand upon a promissory note. Blake v. Laurence, 4 Esp. 147. In one case, it was ruled that the plaintiff might recover more than his particulars demanded, the defendant having given in evidence an account, from which it appeared that there was a sum of money due to the plaintiff beyond that claimed in his particulars. Hurst V. Watkins, 1 Campb. 68, and see 1 PhilL Ev. 182. So where the defendant pleaded in abatement, that the promises were made by himself and another person jointly, and it appeared from the parti- culars, and was admitted at the trial, that some of the articles were furnished to the defendant jointly with the person named in the plea, it was held by Lord Kenyon, that the plaintiff was bound by his particulars, and that he must be nonsuited, although it appeared by the particulars that part of the demand was due from the defendant alone. Colson v. Selbij, 1 Esp. 451. But where, in an action for lottery-tickets sold, the particulars of the defendant's set-off mentioned the sale of the tickets to himself, it was held, that this was not sufficient proof of the sale, and that the fact must be proved by other evidence. Miller v. Johnson, 2 Esp. 602. Har- rington V. Macmorris, 5 Taunt. 229.=' Yet, in a very late case, the particulars of the plaintiff's demand were allowed to be read for the defendant, in order to prove payments for which the plaintiff had given the defendant credit. Rijmer v. Cook, 1 M. and M. 86 (n). The plaintiff may give evidence of a demand contained in his particular, though he omitted to include it in a bill delivered before action brought. Short v. Edwards, 1 Esp. 374. A mistake in the particulars, not calculated to mislead, is imma- terial. Thus, where the particular specified a bill for 60/. bearing date on a certain day, and the evidence was of a bill for 63/. dated on a different day in the same year and month, Abbott J. held the variance to be immaterial. Manning's Index, 240. So where the particulars specify a payment made on account of the defendant to A., which was in fact made to B., it is sufficient, unless the de- fendant will state to the court by affidavit that he has been misled. Day V. Bowyer, 1 Campb. 69 (n). So where the action is for money had and received to the use of the bankrupt, and the parti- culars for money had and received to the use of the plaintiffs, as * 12 Eng. Com. Law Rops. 124. « 1 Id. 88. 40 Evidence confined to the Issue. assignees. Tucker v. Barrow, 1 M. and M. 137. So also where work and labour is stated to have been perfornned in a certain month, which was in fact performed in another month, it is imma- terial. Millwood V. Walter, 2 Taunt. 224. So again, where in debt for rent, premises situate at A. are described as situate at B., it is immaterial, unless the defendant can prove that he held other premises at B. of the plaintiff. Davies v. Edwards, 3 M. and S. 380. If the plaintitf, perceiving a defect in his particulars, delivers a second bill of particulars large enough to comprehend his whole demand, yet this will not avail him, unless the second particular has been delivered under a judge's order, and he will be confmed to his first particular. Brown v. Watts, 1 Taunt. 353. The particulars are proved by the production of the judge's order, and of the particulars themselves, and by proof of the signa- ture of the party, or his attorney or agent. 1 Phill. Ev. 183. Evidence confined to the issue — of ivhat facts the courts will take judicial notice.'] There are various facts which the courts notice judicially, and of which it is of course unnecessary to give any evidence. They will judicially notice the order and course of pro- ceedings in Parliament ; Lake v. King, 1 Saund. 131 ; the superior courts and their jurisdiction ; Tregany v. Fletcher, 1 Lord Raym. 184; and course of proceeding; Dohson v. Bell, 2 Lev. 176; and the privileges of their officers ; Ogle v. Norcliffe, 2 Lord Raym. 869 ; the beginning and end of term ; Estwicke v. Cooke, 2 Lord Raym. 1557 ; 1 Saund. 300 d. (n). 5th ed. ; general customs, as those of gavelkind and borough English ; Clements v. Scudamore, 2 Ld. Raym. 1025: the limits of ecclesiastical jurisdictions; Adams v. Terretenants of Savage, 2 Ld. Raym. 854 ; the limits of coun- ties ; 2 Inst. 557. DcyheVs case, 4 B. and A. 248 ;y the days of fes- tivals appointed by the calendar; Brough v. Perkins, 6 Mod. 81 ; and the number of days in a particular month. 1 Rol. Ah. 524. The courts will not notice judicially the nature and jurisdiction of inferior courts; Moravia v. Sloper, Willes, 37; nor foreign laws; Mostyn V. Fahrigas, Cowp. 174 ; nor the seal nor proceeding of a foreign court ; Henry v.Adey, 3 East, 221 ; Ganer v. Lady Lanes- borough, Peake, 17; nor the laws of the colonies; Wey v. Yally, 6 Mod. 194 ; nor the King's proclamation, without production of the Gazette ; Van Omeron v. Dowick, 2 Campb. 44 ; nor particular customs, as those of London ; Ajgyle v. Hunt, 1 Str. 187, Wiseman V. Cotton, 1 Sid. 138 ; nor that a particular town is within a certain diocese; R. v. Simpson, 2 Ld. Raym. "1379 ; nor the local situation of a town in a county ; DeybeVs case, 4 B. and A. 243 ; nor that a particular town, as Dublin, is in Ireland ; Kearney v. King, 2 B. and A. 303 : nor the sheriffs' book. Russell v. Dickson, 6 Bingh. 442.^ Though the court will take judicial notice of the articles y 6 Eng. Com. Law Reps. 413- ' 19 Id. 125. Substance of Issue only to be proved. 41 of war which are printed by the King's printer ; Bradley u. Arthur, 4 B. and C. 304,» R. v. Withers, cited 5 T. R. 446 ; yet the book called " R,ules and Regulations for the Government of the Army," will not be judicially noticed. Bradley v. Arthur, 4 B. and C. 304." THE SUBSTANCE OF THE ISSUE ONLY NEED BE PROVED. The substance of the issue joined between the parties need alone be proved. 1 Phill. Ev. 190. Thus, on a count against a sheriff for a voluntary escape, the plaintiff may prove a negligent escape. Bonafous v. Walker, 2 T. R. 126. So on a count on a policy for a total loss, he may prove a partial loss. Gardiner v. Croasdale, 2 Burr. 904. So if a plea in trespass allege two mat- ters, either of which amounts to a justification, proof of one of them is sufficient, though they are both put in issue by the replication. Spilsbury v. Micklethicaiie, 1 Taunt. 146. In an action on a bond, the condition of which is, that the obligor will not cut down any trees, if the plaintiff assigns a breach, that the obligor cut down twenty trees, he may prove that part of that number only were cut down. Co. Litt. 282 (a). In slander, the plaintiff is entitled to a verdict on proof of some of the actionable words laid. Com- pagnon v. Martin, 2 W. Bl 790. In replevin, the defendant, who avows for rent arrear, is entitled to a verdict, though he prove less to be in arrear than he has alleged. Harrison v.^ Barnhy, 5 T. R. 248. When an averment is divisible, it is sufficient to prove one part of It. Thus, where in a declaration for a false return to afi.fa. against the goods of A. and B. it was alleged, that A. and B. had goods within the Bailiwick, it was held sufficient to prove that either A. or B. had goods. Jones v. Clayton, 4 M. and S. 349. The doctrine of variances in general depends upon the rule that the substance of the issue need only be proved. Variance — amendinent.'] By a late act, the court has the pow- er of ordering the record to be amended in case of variance. By 9 Geo. IV. c. 15, it is enacted, that it shall and may be lawful for every court of record holding pleas in civil actions, any judge sit- ting at Nisi Prius, and any court of oyer and terminer, and general jail delivery in England and Wales, the town of Berwick upon Tweed, and Ireland, if such court or judge shall see (it to do so, to cause the record on which any trial may be pending before any such judge or court, in any civil action, or in any indictment or in- formation for any misdemeanor, when any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record whereon the » 10 Eng. Com. Law Reps. 340. 6 42 Substance of Issue only to be proved. trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs, if any, to the other party, as such judge or court shall think reasonable, and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postca and returned together with the record, and thereupon the papers, rolls, and other records of the court from which such record issued, shall be amended ac- cordingly. See Webb v. Hill, 1 M. and M. 253, stated post. Where a judgment is stated in the record as of one court, and it appears by the production of an examined copy to have been obtained in another, the judge may order the record to be amended under the above statute. Briant v. Eicke, 1 M. and M. 359. Where in re- plevin the defendant avowed for rent arrear, and on production of the lease it varied from the terms of the tenancy stated in the avowry, Park J. refused to permit an amendment under this sta- tute, observing, that it only applied to cases where some particular written instrument was professed to be set out or recited. Ryder V. Malbon, 3 C. and P. 594." So where certain words had been added to an acceptance of a bill, obviously after the bill was ac- cepted, and the declaration stated the acceptance with the addition of these words, Lord Tenterden refused an amendment, saying that it was not one of those cases where there had been a verbal mis- take in setting out some written document. Jelfv. Oriel, 4 C. and P. 22,"= and see Rutherford v. Evans, Id. 79.* Where the declara- tion against the acceptor of a bill mis-stated the date of the bill, Parke J. allowed an amendment loithout costs. Bentzing v. ScotU Id. 24. Variance in contract — in the •parties.'] It is a fatal variance, if it appear that a party who ought to be joined as plaintiff has been omitted; Graham v. Robertson, 2 T. R. 282; 1 Saund. 291, h (n); but it is no variance to omit a person who might have been joined as defendant ; the non-joinder must be pleaded in abatement. Evans v. Lewis, 1 Saund. 291, d (n). Thus, where the declara- tion stated a bill of exchange to have been drawn upon, and ac- cepted by the three defendants, and it was proved to have been drawn upon and accepted by them jointly, with a fourth, it was held no variance. Mountstephen v. Brooke, 1 B. and A. 224. Where a contract has been made with two persons, one of whom has since died, and the action is brought upon such contract by the survivor, without stating the fact of his being survivor, it is a fatal variance ; Jell v. Douglas, 4 B. and A. 374 ;*■ but it is otherwise with regard to the party against whom an action is brought, who need not be stated to be survivor, for the joint debt may, by reason of the death of the party, be treated as if it had been originally a se- parate debt. Richards v. Heather, 1 B. and A. 29. Where a con- » 14 Eng. Com. Law Reps. 470. •19Id.257. M9Id. 281. • 19 Id. 267. 6 Id. 451. Substance of Issue only to be proved. 43 tract is made by one of several partners (the partnership being really interested) it is no variance, that the action is brought in the name of all the partners; Garrett v. Handley, 4 B. and C. 664 ;= for the action may be maintained either in the name of the person with whom the contract was actually made, or in the name of the parties really interested. Skinner v. Stocks, 4 B. and A. 437." Thus, where an attorney carried on business under the firm of "A. and Son," the son not being in fact a partner, but acting as a clerk to his father, and receiving a salary, it was held that A. might maintain an action in his own name, to recover from a client the amount of a bill for business done. Kellij v. JVainhy, 10 B. and C. 20- It is a fatal variance to describe a bond conditioned for pay- ment by A. B. and C. as a bond for payment by A. B. and D., though the bond be several as well as joint, and the action be against A. severally. Adams v. Bateson, 6 Bingh. 110.' The non- joinder of a secret partner cannot be pleaded in abatement. Mullett V. Hook, 1 M. and M. 8S. See post " Assumpsit Defence." Variance in contract — in consideration^ It is not necessary for the plaintitT to set out all the several parts of a contract con- sisting of distinct and collateral provisions, it is sufficient to state so much of the contract as contains the entire consideration for the act, and the entire act to be done in virtue of such consideration, including the time, manner, and other circumstances of its perform- ance. Clarke v. Gray, 6 East, 568. Parker v. Palmer, 4 B. and A. 387." Thus, where the plaintiff declared, that in consideration of his redelivery to the defendant of an unsound horse, the defend- ant promised to deliver to him anothe.- horse, which should be worth 80/. and be a young horse, and a breach was assigned in both those respects, it was held no variance, though it was proved that the defendant also promised that the horse was sound, and had never been in harness. Miles v. Sheicard, 8 East, 7. The omission of any part of the consideration is a fatal variance. Thus, in as- sumpsit by landlord against the assignee of a bankrupt, on an agreement to pay ten shillings in the pound for rent due from the bankrupt and themselves, it appeared that part of the considera- tion was, that the plaintiff should accept a surrender, which consi- deration being omitted, the plaintiff was nonsuited. Dashivood v. Peart, Manning's Index, 308. So where the contract declared on was, that the defendant should deliver to the plaintiff all his tallow at 4s. per stone, and the contract proved was, that the defendant should deliver it at 45, per stone, and so much more as the plaintiff paid to any other person, the variance was held fatal. Churchill v. Wilkins, 1 T. R. 447. It seems, that if the declaration state the consideration to be certain reasonable reward, evidence that a spc- » 10 Eng. Com. Law Reps. 438. * 6 Id. 478. ' 19 Id. 21. " 6 Id. 455. 44 Siibstmice of Issue only to be proved. cific sum was agreed on will uot be a material variance. Semb. Per Chamhre, J. Bayley v. Tricker, 2 JV. R. 458, see post, p. 45. Variance in contract — in the promise.'] It is only necessary to state so much of the promise, for the breach of which the plaintiff proceeds, supra. But the omission of a qualification in the promise will be fatal. Thus, the statement of a general warranty of a horse is not supported by proof of a Avarranty of soundness, excepting a Jack on the leg. Jones v. Coirlcy, A B. and C. 445.» So when the plaintiffs declared, that for certain hire and reward the defendants undertook to carry goods from London, and deliver them safely at Dover, and the contract proved was to carry and deliver safely (fire and robbery excepted) the variance was held fatal. Latham v. Ridley, 2 B. and C. 20."' So a promise in the alternative cannot be stated as an absolute promise. Pcnni/ v. Porter, 2 East, 2. So any ad- dition to the promise \vill be a fatal variance. Thus, a contract to deliver soil cannot be declared upon as a contract to deliver soil, or breeze, if it appear that soil and breeze are different articles. Clark V. Manstone, 5 Esp. 2.39. So the omission of any part of the entire promise, for the breach of which the plaintiff pro- ceeds, will be fatal. Thus, where land was alleged to have been demised at a rent of 15/. and, in evidence the rent appeared to be 15/. and three fowls, the variance was held fatal. Sands v. Ledger^ 2 Ld. Raym. 792. So where the allegation was, that the defend- ant promised io farm certain lands in a husbandlike manner, and the proof was that he promised to farm the land in a husbandlike manner, to be kept constantly in grass, the variance was held fatal. Saunderson v. Griffdhs, 5 B. and C. 909." But, if the omission does not alter the legal effect of the promise, the variance is immaterial. Thus, where the promise was stated to be to deliver a quantity of gum Senegal, but the contract appeared by the evidence to be for the delivery o( rough gum Senegal, the variance was held immate- rial, it appearing that all gum Senegal on its arrival in this country is called rough. Silver v. Heseltine, I Chitty 39.° So where the declaration stated that the defendant had agreed to buy a large quantity of head matter and sperm oil in the possession of the plaintiff, which was afterwards ascertained to be a given quantity, and the contract proved was, for the purchase of " all the head matter and sperm oil. Per the Wildman," it was held no variance. Wildman v. GIossop, 1 B. and A. 9. Variance in contract — in legal effect'] It is in general sufficient to describe a contract according to its legal effect. See Thornton t). Jones, 2 Marsh. 28 7.^ An agreement to sell oats at so much per bushel must be taken to mean the Winchester bushel, and will > 10 Eng. Com. Law Reps. 377. " 9 Id. 10. • 12 Id. 404. • 18 Id. 23. f 1 Id. 490. Substance of Issue only to be proved. 45 not be supported by evidence to sell by some other bushel. Hockin V. Cooke, 4 T. R. 314. So if a bill of exchange is stated to have been drawn for a certain sum of money, it will be intended to be English money. Kearney v. King, 2 'B. and A. 301. Sproide v. Lega-e, 1 B. and C. 16.i But upon a common count for money lenC it is no variance if the loan is proved to have been of foreign coin, as pagodas. Harrington v. Macmorris, 5 Taunt. 228.'' It has been held that a statement of a contract to deliver saddles to the plaintiif at a reasonable price, is supported by proof of an agreement to deliver saddles " at 24s. a 26s." Lahig v. Fidgeon, 6 Taunt. 108,' and see Bayleij v. Tr icier, 2 JV. R. 458, ante p. 44. But vi^here the declaration was for not removing goods in a reason- able time, and the contract proved was to rem.ovc in a month, it was ruled by Lord Kenyon to be a fatal variance. Hare v. Miner, Peake, 42, a. So an averment of a contract to do an act on request, is not proved by a contract to do it on a certain day. Bordenave V. Bartlett, 5 East, 111. So the allegation of an agreement to take a full cargo of wheat is not supported by evidence of an agreement to take on board 500 quarters of wheat, though that quantity in fact amounts to a full cargo. Harrison v. Wilson, 2 Esp. 708. But see Wickes v. Gordon, infra. An allegation of a retainer " at a certain salary, to wit, 250Z. per annum,"^can be supported only by proof of a contract for a specific annual salary. Preston v. Butcher, 1 Stark. 3.' The statement of a contract for the purchase of a certain quantity, to wit, eight tons of goods, is supported by proof of a contract for the purchase of about eight tons, the pre- cise quantity having been ascertained to be eight tons. Gladstone V. JVeal, 13 East, 418. The statement of a contract to deUver stock on the 27th of February, is proved by evidence of a contract to deliver on the settling day, coupled with proof that the settling day was fixed for, and understood by the parties to mean the 27th February. Wickes v. Gordon, 2 B. and A. 335. An averment, that a bill was drawn by certain persons using the style of " Ellis, Needham, and Co." is supported by proof, that the bill was drawn by A. only under the firm of Ellis, Needham, and Co. Bass v. Clive, 4 M. and S. 13. So a general averment, that a bill was accepted by the defendants, is proved by evidence, that it was accepted by their authorised agent for them. Heys v. Heseltine, 2 Campb. 604. And a conveyance to the defendant's nominee, sup- ports an averment that the defendant became the purchaser. Sea- man V. Price, R. and M. 195. A declaration on a joint bond is supported by proof of a joint and several bond. Middleton v. Sandford, 4 Campb. 34. In an action on a promissory note by A. B., if the plaintifl allege that the note was made payable to him by the name of A. C, and the note appears to have been made S'^'-] Where a record is stated by- way of inducement, and is not the gist of the action, it is not neces- sary to describe it with a prout pat^t, itc. and it is sutiicient to prove it substantially. Thus, in an action for a false return to a f. fa., ■where the declaration stated that the plaintiti' in Trinity Term, 2 Geo. IV., recovered, itc, prout patct per recordum, and a judgment of Easter Term. 3 Geo. IV., was given in evidence, it \vas held no variance. Stoddart v. Palmer, 3 B. and C. 2.^ Phil- lips V. Shaw, 4 B. and A. 435.» Bcnnct c. Isaac, 10 Price, 154. R. V. Coppard, 1 M. and M. 118. But where the judgment is the gist of the action it is otherwise. Thus in an action of debt on a judgment, if the declaration state the judgment to have been re- covered in such a term, prout patct. cVc, and it appears in evidence to have been recovered in another term, the variance is fatal. Ras- tall V. Stratton, 1 H. Bl. 40. In an action for a malicious prosecu- tion, it was averred, that the defendant prosecuted an indictment against the plaintilK until afterwards, to-wit, on a certain day, the plaintitrw.is indue manner acquitted: the lecord of acquittal was on another day, but the court held that the variance was immate- rial, and that the averment was substantially proved. PurccU v. Macnamara, East, lo7. In an action for maliciously arresting and holding the plaintilFto bail, the declaration, in setting out the judgment by delault, in the former action, stated, "that it was thereupon considered that the plaintitls should take nothing by their said writ, but that they and their pledges to prosecute should be in fnerci/. cVc:" it was held to be no material variance that the record produced had not the words, •' and their pledges to prosecute,"' but only an (Sic, for that those words might be re- iected as surplusage, the substance of the allegation being the discontinuance of the former suit. Judge v. Morgan, 13 East, 547. An averment in an action for an escape, that bail » 1 Eng. Com. Law Reps. ISl. J 10 Id. 4. «6Id. 477. Substance of Issue only to be proved. 49 above was put in before a judge at Chambers, "as appears by the record of the rcco 1 Eng. Com. Law Reps. 266. " 3 Id. 594. " 14 Id. 48. 52 Jijjirmative of the Issue to be proved. the other party, lies upon him. Ross v. Hunter, 4 T. R. 33. So where in action on an agreement to pay 100/. if the plaintiff would not send herrings to the London market, and particularly to the house of J. S., the plaintiff proved that he had sent no herrings during the t\v(;lvemonth to that house, it was held sufficient to en- title him to recover, no proof being given by the defendant that the plaintiiF had sent herrings within the year to the London market. Calder v. Rutherford, 3 B. and li. SO^- 7 B. Moore, 158,- S. C. There are, however, some exceptions to this rule. Where the presumption of law is in favour of the affirmative.'} Where the presumption of law is in favour of the affirmative, as where the issue involves a charge of a culpable omission, it is incum- bent on the party making the charge to prove it, although he must prove a negative, for the other party shall be presumed innocent until proved to be guilty. Thus, where in a suit for tithes in the spiritual court, the defendant pleaded that the plaintiff had not read the Thirty-nine Articles, it was held that the proof of the issue lay on the defendant. jVonke v. Butler, 1 Roll. Rep. 83. 3 East, 199. R. V. Haukins, 10 East, 21C. So in an action by the owner of a ship for putting combustibles on board, " without giving due notice thereof," it was held that the plainlilf was bound to prove the want of notice. Williams v. E. I. Comp. 3 East, 193 ; and see Marsh v. Home, 5 B. and C. 327,'' post. So where the issue is as to the legit- imacy of a child born in lawful wedlock, Banbury Peerage case, 2 Selw. JV. P. 709, it is incumbent on the party asserting the illegiti- macy to prove it ; and where the issue is on the life of a person who is proved to have been alive within seven years; ante p. 18; the party asserting his death must prove it. Where the fact is peculiarly within the knoicledge of a party. "] But where the affirmative is peculiarly within the knowledge of the party charged, the presumption of the law in favour of inno- cence is not allowed to operate in the manner just mentioned, but the general rule as above stated applies, viz. that he who as- serts the affirmative is to prove it, and not he who avers the nega- tive. 2 Russ. on Crimes, 692, 2d Ed. Thus in an action on the game lav.'s, though the plaintiff must aver that the defendant was not duly qualified, yet he cannot be called upon to prove the want of qualification, Spieres v. Parker, 1 T. R. 144, Adm. R. v. Stone, 1 East, G50. So in an action against a person for practising as an apothecary, without having obtained a certificate according to 55 Geo. in. c. 194, the proof of the certificate lies upon the defendant, and the plaintiff need offer no evidence of his practising without it. Apoth. Comp. v. Bentley, R. and M. 159. • 7 Eng. Cora. Law Reps. 447, p 11 Id. 243. 53 INSTRUMENTS OF EVIDENCE. Under the present head will be considered the mode in which the various kinds of documentary evidence must be proved, and also the rules with regard to the competency of witnesses, and their examination. Proof of Acts of Parliament and Journals. Acts of parliament are either public or private. The printed statute-book is evidence of a public statute, not as an authentic copy of the record itself, but as iiints of that which is supposed to be lodged in every man's mind already. Gilh. Ev. 10. A private act of parliament is usually proved by a copy examined with the parliament roll. B. JV. P. 225. A private act of parliament, con- taining a clause " that it shall be deemed and taken to be a public act, and shall be judicially taken notice of without being specially pleaded," requires to be proved in the usual manner by an examined copy. Brett v. Beaks, 1 M. and M. 421. By stat. 41 Geo. III. c. 90, s. 9, the copy of the statutes of England, and of Great Britain since the union with Scotland, printed by the king's printer, shall be received as conclusive evidence of the statutes enacted prior to the union of Great Britain and Ireland, in any court of civil or crim- inal jurisdiction in Ireland ; and in like manner the copy of the sta- tutes of the kingdom of Ireland, made by the parliament of the -same, printed by the king's printer, shall be received as conclusive evidence of the statutes enacted by the parliament of Ireland prior to the union of Great Britain and Ireland, in any court of civil or criminal jurisdiction in Great Britain. The journals of the House of Lords, and of the House of Com- mons, may be proved by examined copies, but the printed journals are not evidence. Lord Mehillc's case, 24 How. St. Tr. 683. R. v. Lord G. Gordon, 2 Dough 593. An unstamped copy of the minutes of the reversal of a judgment in the House of Lords, without more of the proceedings, is evidence of the reversal. Jones v. Randall, Cowp. 17. Proof of Records. Upon an issue qfnul tiel, ^c] Upon an issue of nul tiel record, the record, if a record of the same court, is produced, and inspected by the court, Tidd, 801; if a record of an inferior court, it is proved by the tenor of the record, certified under a writ of certio- rari, issued by the superior court, id. 804 ; if a record of a con- current superior court, it is proved by the tenor certified under a writ of certiorari, issued out of Charicery, and transmitted thence by writ of mittimus. Ibid. 54 Proof of Records. Where md tie! record is not pleaded, but it is necessary lo prove a record in support of some allegation in the pleadings, the record may be proved cither by an exemplification or a copy. Exempli- fications are of two kinds, either under the great seal, or under the seal of the court in which the record is preserved. An exemplifi- cation under the great seal may be obtained of any record of the G)urt of Chancery, or of any record which has been removed thi- ther by certiorari, but private deeds exemplified under the broad seal, will not be admitted in evidence. B. JV. P. 227. Exemplifi- cations of the records of a public court under its own seal, are ad- missible, without proof of the genuineness of the seal. looker v. Duke of Beaufort, Sayer, 297. But the genuineness of the seal of a foreign court must be proved ; Henry v. Adey, 3 East, 221 ; and, if a foreign court has an official seal, it must be used for the purpose of authenticating its judgments, and a copy by an officer of the court is not suflicient. Black v. Lord Brayhrooke, 2 Stark. 7.;i and see Appleton v. Lord Brayhrooke, 6 M. and S. 34. If a colonial court possess a seal, it should be used to authenticate its judgments, though so much worn as no longer to make any impression. Cavan V. Steivart, 1 Stark. 525.'' If there be no seal of the court or is- land, an examined copy must be obtained ; per Lord Ellenhorough, Appleton V. Lord Brmjhrooke, 6 M. and S. 36 ; or distinct evidence should be given that the court has no seal, and verifies its judg- ments by the signature of the judge. Alves v. Bunbury, 4 Campb. 28. So the seal of a corporation must be proved to be genuine by a witness acquainted with it. Moises v. Thornton, 8 T. R. 307; but it is not necessary to call a witness who saw the seal affixed. Ibid. The seal of the corporation of London has been held to prove itself. Doe v. Mason, 1 Ssp. 53. Examined copy of a record.'\ When the record is complete, an examined copy will be evidence, unless upon the issue of nul tiel record. Records are not complete until delivered into court in parchment, therefore a minute-book, from which an entry of the proceedings at sessions is made, and from which book the roll con- taining the record of such proceedings is subsequently made up, is not a record. R. v. Bellamy, R. and M. 171. So the judgment in paper, signed by the Master, is not Evidence, for it is not yet be- come permanent ; B. JV. P. 228. Godefroy v. Jay, 1 M. and M. 236 ; 3 C. and P. 192, S. C; nor the minute-book of the clerk of the peace to prove that an indictment was preferred. R. v. Smith, 8 B. and C. 341.* The copy of a record must be proved by a wit- ness who has examined it line for line with the original, or who has examined the copy while another person read the original. Reid V. Margison, 1 Campb. 469. And it is not necessary 1 3 Eng. Com. Law Reps. 218. ' 2 Id. 496. • 14 Id. 265. « 15 Id. 232. Proof of Records. 55 for the persons examining to exchange papers, and read them al- ternately. Gyles V. Hill, Id. (n). Rolf v. Dart, 2 Taunt. 4:10. It ought to appear that the record from which the copy was taken was seen in the hands of the proper officer, or in the proper place for the custody of such records. Adamthivayte v. Synge, 1 Stark. 183." 4 Campb. 372, S. C. Where an ancient record has been lost, an old copy has been allowed to be given in evidence without proof of its being a true copy. Aiion. 1 Vent. 257. B. JV. P. 228. Office copies.'] An office copy in the same court, and in the same cause, is equivalent to a record ; but in another court, or in another cause in the same court, the copy must be proved. Per Lord Mans- field, Denn v. Fulford, 2 Burr. 1179. But the office copy of an affidavit made in another cause in the same court has been admit- ted as good evidence. Wightwick v. Banks, Forrest, 153. An office copy of depositions in Chancery is evidence in that court, but will not be admitted in a court of common law without examination with the roll. B. JV. P. 129, Burnand v. JVerof, 1 C. and P. 578,^ High- field V. Peake, 1 M. and M. 109. By 7 Geo. IV. c. 57, s. 74, office copies of proceedings in the Insolvent Court are made evidence. Vide post. Copies made by authorized officers.'] Where a copy is made by a person trusted for that purpose, it is admissible in evidence with- out proof of its having been actually examined. B.JV, P. 229. Thus, the chirograph of a fine is evidence of the fine, the chirographer being appointed to make that copy, but it is not evidence of the proclamations, for of them the chirographer is not appointed to make a copy. Ibid. Gilb. Ev. 23. So the indorsement by the pro- per officer on a deed of bargain and sale enrolled according to stat. 27 Hen. VIII. c. 16, is evidence of the enrolment ; Ibid. Kinnersley V. Orpe, 1 Dougl. 56 ; and the date of enrolment indorsed by the clerk of the enrolments is conclusive evidence of the date. R. v. Hopper, 3 Price, 495. So a copy of the depositions of a witness taken at a judge's chambers, signed by the judge, and delivered out by his clerk, is admissible, without proof of examination with the original. Duncan v. Scott, 1. Campb. 101. A copy of a judgment, purporting to have been examined by the clerk of the treasury (who is not intrusted to make copies), is not admissible without proof of its examination with the original. B. JV. P. 229. To prove the time of signing a judgment, the day-book kept at the judgment-office is not evidence. Lee v. J\leecock, 5 Esf. 177. Ayrey v. Davenport, 2 JV. R. 474. » 2 Eng. Com Law Reps. 340. ' 1 1 Id. 479, 56 Proof of Verdict, Proof of Verdict. In order to prove a verdict, when it is offered as the opinion of the jury ort the issue, the poslea alone is not sufficient, but the judg- ment must also be proved to sho\v that it has not been arrested, or a new trial granted; Pitton v. Walter, 1 Str. 162. B. JV. P. 231; unless in case of an issue out of Chancery, when no judgnnent is entered up. B. JV. P. 234. So the J\'isi Prius record, with the postea indorsed, or with a minute of the verdict indorsed by the officer of the court on the jury panel, is sufficient evidence, that the cause came on to be tried. Pitton v. Walter, 1 Str. 1G2. R. v. Browne, 1 M. and M. 315. And in an action for a moiety of the money paid by the plaintiff under a verdict recovered by A., in a suit agii.inst the plaintitf and defendant, the Nisi Prius record and postea have been held to be evidence of the verdict and damages in the former suit without proof of the judgment. Foster v. Comp- ton, 2 Stark. 36S.* So it was held by Lord Kenyon, that the pro- duction of the postea in a former cause between the same parties, would support a plea of set-off to the extent of the verdict. Gar- land V. Scoones, 2 Esp. 648. But see Pitton v. Walter ^ 1 Str. 162. Proof of Writ. Where a writ is the gist of the action, it must be proved by a copy of the record after its return ; but where it is only inducement to the action, it may be proved by production of the writ itself, if it has not been returned. B. JV. P. 234. A copy of the judgment- roll, containing an award of an elegit, and the return of the inqui- sition, is evidence of the elegit and inquisition, in an action for use and occupation. Ramsboltom v. Buchhurst, 2 J\/I. and S. 505. As to secondary evidence of a writ, see Edmonstone v. Plaisied, 4 Esp. 160, ante, p. 5. Proof of Inquisitions. Where the return to an inquisition is given in evidence, it is in general necessary to show, that the inquiry has been made under proper authority. Thus, in the case of an inquisition posi mortem, and such private offices, the return cannot be read without also reading the commission, uidess, as it seems, the inquisition be old ; Fzn. Ah. Ev. {A. b. 42) ; but in cases of more general concern, such as the return to the commission in Henry the Eighth's time, to in- quire of the value of livings, the commission is a thing of such gene- ral notoriety that it requires no proof. B. JV. P. 228. So an an- cient extent of crown lands found in the proper office, and purport- ing to have been taken by a steward of the king's lands, and fol- lowing in its constructions the directions of the statute 4 Edw. I., ' 3 Eng. Com. Law Reps. 384. Proof of Rule of Court. 57 will be presumed to have been taken under competent authority, though the commission cannot be found. Roice v. Brenton, 8 B. and C. 14:1 J Proof of Rule of Court. A rule of court produced under the hand of the proper officer, need not be proved to be a true copy. Selbij v. Harris, 1 Ld. Raym. 745. Duncan v. Scott, 1 Campb. 102. Where a Court prints and circulates copies of its rules for the guidance of its offi- cers, one of such copies is evidence of the rules which the officers are to act on, without showing it examined with the original. Dance v. Rohson, 1 M. and M. 294. A rule of court is not matter of record. R. v. Bingham, 3 Y. and J. 101. Proof of Proceedings in Chancery. A decree in Chancery may be proved by an exemplification, or by a sworn copv, or by a decretal order in paper, with proof of the bill and answer. Trowel v. Castle, 1 Keb. 21. B. N. P. 244. And it has been held, that the bill and answer need not be proved if they are recited in the decretal order. Ibid. Com. Dig. Ev. (C. 1.) However, the rule generally laid down seems to be, that where a party intends to avail himself of the contents of a decree, and not merely to prove an extrinsic collateral fact, (as that a decree was made by the court,) he ought regularly to give in evidence the pro- ceedings on which the decree is founded. 1 Phill. Ev. 373. And see Peake, Ev. 74. An answer in Chancery is proved by the production of the bill and answer, or of examined copies of them ; but on proof by the proper officer, that the bill has been searched for in the office and not found, the answer may be read without the bill. Gilb. Ev. 55. Some proof of the identity of the parties is requisite ; it may be proved by a witness who has seen the handwriting of the defendant to the original answer, though it is not produced in court. Dart- nail v. Howard, R. and M. 109. So if the name and description of the defendant at law agree with the name and description of the party answering in equity, it is prima facie evidence of identity. Hennell v. Lyon, 1 B. and A. 182. An answer offered in evidence merely as an admission of the party on oath, is sufficiently proved by an examined copy, without proof of a decree, or of the party's handwriting. Lady Dartmouth V. Roberts, 16 East, 334. So where a witness at a trial at law gave evidence at variance with what he had previously sworn in an answer in Chancery, it was held, that an examined copy of that answer was admissible to contradict him. Eiver v. Ambrose, 4 B. and C. 25.' And see Highfield v. Peake, 1 M. and M. 109, infra. r 15 Bag. Com. Law Reps. 335. » 10 Id. 270. 8 58 Proof of Depos^itions. An examined copy of an affidavit filed in the court of Chancery, is, as it seems, evidence without proof of the handwriting of the party making it, provided it be shown tliat it has been used or acted upon by him, but in case of an indictment for perjury, the handwriting must be proved. R. i\ James, 1 Shoio. 397. Crook v. Dowlingy 3 Dough Cash urn v. Reid, 2 B. Moore, 60.» Rees v. Bowen, MCI. and Y. 383. Proof of Depositions. What a witness, since dead, has sworn on a trial between the same parties, may be given in evidence either from the judge's notes, or from notes that liave been taken by any other person, who \v\\\ swear to their accuracy, or it may be proved, by any per- son who will swear from his memory to its having been given. Per Mansfield, C. J., Mayor of Don caster v. Dai/, 3 Taunt. 262. Strutt V. Bovingdon, 5 Esp. 57. The witness must be prepared to prove the very words of the former witness^^ Ennis v. Donisthorne, 1 Phill. Ev. 219, 6th ed. 4 T. R. 290. Depositions in a suit in Chancery are not, in general, admissible without proof of the bill and answer ; B. JV. P. 240. Gilb. Ev. 62 ; unless so ancient that no bill or answer can be found ; Gilb. Ev. 64. Bryan v. Booth, 2 Price 234 (n) ; or unless the depositions are of- fered in evidence as an adhaission merely, or for the purpose of contradicting a witness. 1 Phill. Ev. 375. In general depositions before an answer put in, are not admitted to be read ; B. JV. P. 240 ; but if the defendant in equity is in contempt, or has neglected to take advantage of an opportunity to cross-examine, the deposi- tions may be read on proof of the bill without the answer. Caze- nove V. Vanghan, 1 M. and S. 4. Depositions offered in evidence, under an order of the court of Chancery, on directing a trial at law, may be read without proof of the bill and answer, it being proved, that at the time of trial the witnesses are unable to attend in person. Palmer v. Aylesbury, 15 Ves. 76. And on an issue out of Chancery, an examined copy of the depositions of one of the witnesses was allowed to be read for the purpose of contradicting the evidence of the same witness on the trial of the issue. Plighjield v. Peake. 1 M. and M. 109. Depositions taken on interrogatories under a commission, are not evidence without production of the commission, unless the deposi- tions are of long standing. Bayley v. Wylie, 6 Esp. 85. Roice v. Brenton, 8 B. and C. 765." It must also be proved, that the wit- ness is dead, insane, or absent. Benson v. Olive, 2 Str. 920. Fal- coner V. Hanson, 1 Campb. 172. But where the witness had actually sailed on a voyage, the depositions were allowed to be read, though the vessel was, at the time of trial, driven back into » 4 Eng. Com. Law Rops. 405. » 15 Id. 335. Proof of Judgment of Inferior Court. 59 port by contrary winds. Fonsick v. Agar, 6 Esp. 92. But it is not sufficient that the witness is a seafaring man, and that he lately belonged to a vessel lying at a certain place, without proving that some eifort has been recently made to procure his attendance. Falconer v. Hanson, 1 Ca?npb. 172. As to depositions in India, see stat. 33 Geo. III. c. 63, s. 40, 44. Proof of Judgment of Inferior Court. The judgment of a county court, court baron, or other inferior jurisdiction, may be proved by production of the book containing the proceedings of the court from the proper custody, and if not made up in form, the minutes of the proceedings will be evidence, or an examined copy of such proceedings or minutes will be suffi- cient, i?. V. Mains, per Holt. C. J Coinh. 337. 12 Vin. {A. h. 26,) Hennell v. Lyon, 1 B. and A. 185. Thus the minute-book of the Consistorial Court is evidence of a decree for alimony. Houlliston V. Smith, 2 C. and P. 25.° But this rule does not extend to the court of quarter sessions. R. v. Smith, 8 B. and C. 341,' ante p. 54. It seems, that in proving the judgment of an inferior court, evidence should also be given of the proceedings previous to judgment. Com. Dig. Eb. (C. 1). Fisher v. Lane, 2 W. Bl. 836. The book contain- ing the original minutes will be sufficient evidence of these pro- ceedings. Chandler v. Roberts, Peahe, Ev. 80. Proof of Court Rolls. In order to prove the title of a copyholder, the court rolls may be produced ; or copies of them properly stamped may be given in evidence. Doe v. Hale, 16 East, 208, the handwriting of the stew- ard being proved ; but where an admittance is more than thirty years old, proof of the signature of the steward is unnecessary. Dean and Chapter of Ely v. Stewart, 2 Ath. 45. But see Duke of Somerset v. France, Fortescue, 43. In one case. Holt, C. J. ruled that the rough draft of the steward of the manor was good evi- dence. Anon. 1 Ld. Raym. 735. 6 B. and C. 495.^ And it has been held, that a surrender and presentment may be proved by a draft of an entry produced from the muniments of the manor, and the parol testimony of the foreman of the homage jury who made such presentment. Doe v. Calloway, 6 B. and C. 484.' Proof of Probate. Where the title to personal property, under a will, is in ques- tion, the original will cannot be read in evidence without some in- dorsement upon it for the purpose of authentication ; but the pro- « 12 Eng. Com. Law. Reps. 9. ^ 15 Id. 232. • 13 Id. 238. '13 Id. 238. 60 Proof of Letters of Administration. bate must be produced. R. v. Barnes, 1 Stark. 243.8 Penney v. Penney, 8 B. and C. 335." The seal of the Ecclesiastical Court on the probate proves itself. Kepton v. Cross, Rep. tc7np. Hardio. 108. If the probate be lost, it is not the practice of an Ecclesias- tical Court to grant a second probate, but only an exemplification, which will be evidence of the proving of the will. Shepherd v. Shorthosc, 1 Sir. 412. To prove the probate revoked, an entry of of the revocation in the book of the Prerogative Court is good evi- dence. Ramshottmn's case, 1 Leach, C. C. 30 (n), 3d ed. Proof of Letters of Administration. Administration is proved by the production of the letters of ad- ministration, or of a certificate or exemplification thereof, granted by the Ecclesiastical Court; Kempton v. Cross. Rep. t. Hardiv. 108. B. JV. P. 24G ; or without producing the letters of administration, by the original book of acts, directing the grant of the letters ; Jbid. Elden v. Keddel, 8 East. 187 ; and an examined copy of the act book, stating the grant of letters of administration to the de- fendant, is proof of his being administrator, without notice to pro- duce the letters. Davis v. Williams, 13 East, 232. Proof of Foreign Laws. The written law of a foreign state must be proved by a copy duly authenticated. Clegg v. Levy, 3 Campb. 166. Thus, when to prove the law of France as to marriage, the French vice-consul produced a book, which he said contained the code of laws upon which he acted at his office ; that it was printed at the office for the printing of the laws of France ; and that it would have been acted upon in any of the French courts ; it was ruled by Abbott, C. J. to be sufficient proof of the law. Lacon v. Higgins, S Stark. 178 ;' and see R. v. Picion, 30 How. St. Tr. 514, 494. The unwrit- ten law of a foreign state may be proved by the parol evidence of witnesses possessing professional skill. Per Gihhs, C. J. Miller v. Henrick, 4 Camph. 155 ; hut see Boehtlinck v. Schneider, 3 Esp.^ 58. A collection of treaties published by the direction of the American government, will not be sufficient to prove a treaty ; a copy exam- ined with the archives should be produced. Richardson v. Ander- son 1 Campb. 65 (??). An instrument purporting to be a divorce, under the seal of the synagogue at Leghorn, is not admissible without previous proof of the law of the country ; Ganer v. Lady Lanesborovgh, Peake, 17; but Lord Kenyon permitted the party divorced to give parol evidence of her divorce at Leghorn, accord- ing to the ceremony and custom of the Jews there. Ibid. «2 Eng. Com. Law Ucps. 374. ^ 15 Id. 230. ' 14 Id. 176. Proof of Entries m Public Books^^c. 61 Proof of Entries in Public Books, Sfc. Whenever an original is of a public nature and admissible, in evidence, an examined copy is also admissible. Lynch v. Clarke, 3 Salk. 154. Thus examined copies of the entries in the council book, or of a license preserved in the secretary of state's office ; Eyre v. Palgrave, 2 Camph. 606 ; of entries in the bank books ; Marsh v. Collnett, 2 Esp. 665 ; of a bank note filed at the bank ; Man V. Gary, 3 Salk. 155 : of entries in the books of the East India Company; Dougl 593 (n) ; or in the books of the commissioners of land-tax; R. v. King, 2 T. R. 234; or of excise; Fuller v. Fotch, Carth. 346 ; or of a poll -book at an election ; Mead v. Robinson, Willes, 424; or of a book kept in the chapter house of a dean and chapter, purporting to contain copies of leases ; Cooynbs v. Coether, 1 M. and M. 398 ; are good evidence ; and in one case, a copy of an agreement contained in one of the books of the Bodleian library (which cannot be removed) was allowed to be read in evidence. Downes v. Moreman, 2 GwilL 659. An examined copy of a parish register is evidence ; B. JV. P. 247 ; but an examined copy of the register of a marriage in the Swedish ambassador's chapel at Paris, is not evidence. Leader v. Barry, 1 Esp. 353. It seems that the books of the King's Bench and Fleet prisons (which are evidence of the time of a prisoner's discharge) are not such public documents as that a copy of them may be given in evidence. -See Salte v. Tho- mas, 3 B. and P. 190. The genuineness of the post-office mark may be proved by any postmaster ; Fletcher v. Braddyll, Stark. Ev. Appx..to p. 853; or, as it seems, by any one who is in the habit of receiving letters by the post. Abbey v. Lill, 5 Bingh. 299.'' Proof of Entries in Corporation Books. Corporation books are allowed to be given in evidence when they have been publicly kept as such, and when the entries have been made by the proper officer, or by a ihird person, in the ab- sence or sickness of the proper officer. R. v. Mothersell, 1 Str. 92. A book kept by the prosecutor's clerk, who was not an officer of the corporation, containing minutes of corporate proceedings, but which had not been kept as the public book of the corporation, was rejected in evidence. Ibid. If the books are ancient, it must be shown that they come from the proper custody, as from a chest which has always been in the custody of the clerk of the corpora- tion ; Mercers rf Shrewsbury v. Hart, 1 Carr. and P. 1 14 ;i it is not sufficient if they are brought from a chest found in the house of a former clerk after his death. Ibid. Where, in order to prove a person a freeman of Evesham, a copy upon a two shilling stamp k 15 Eng. Com. Law Rops. 452. ' 11 Id. 335. 62 Proof of Public Registers. was produced of a loose paper upon a file, which the witness said was also on a two shilling stamp, and it appeared that there was a book in which the acts of the corporation were kept, and where there was an entry more at large of the freeman's admission, and which was made when the freeman was originally admitted, but this was not on a stamp in the book, it was held by Noel, J. that the loose paper being tiie only elfectual act, as having that which the law requires, viz. the proper stamp, must be looked upon as the proper and original act of the corporation, and that a copy of it was good evidence. R. v. Head, Peakc. Ev. 92 (n). Corporation books may be proved by examined copies ; Brocas v. Mayor, ^-c. of London, 1 Str. 306 ; but if they do not relate to corporate acts the original must be produced. R. v. Gwyn, 1 Str. 401. Proof of Public Registers. Registers of baptisms, marriages, and deaths, may be proved by examined copies, or by production of the register itself. B. M P. 247. See 52 Geo. 111. c. 146. The copy need not be stamped. Id. s. 17. Viva voce proof of the contents of a register has been admit- ted without a copy ; but it was observed by Mr. Justice Buller, that the propriety of such evidence may well be doubted, because it is not the best evidence the nature of the thing is capable of. 2 Evans, Poth. 1 39. In order to prove the register of a marriage, it is not necessary to call the attesting witnesses ; but as the register affords no proof of the identity of the parties, some evidence of that fact must be given, as by calling the minister, clerk, or attesting witnesses, if they were acquainted with the parties ; or the bell- ringers may be called to prove that they rung the bells, and came immediately after the marriage, and were paid by the parties ; or the handwriting of the parties may be proved ; or persons may be called who were present at the wedding dinner, &c. Birt v. Bar- low, Dougl. 162. To prove the handwriting of the parties in the register, it is not necessary to call the subscribing witness. Per Lord Mansfield, Dougl. 174. If a marriage is proved by a person who was present, it is not necessary to prove the registration, or license, or banns. Allison's case, R. and R., C. C. R. 109. Proof of Ship's Register. By Stat. 6 Geo. IV. c, 110,s. 43, it is enacted, " that the collec- tor and comptroller of his majesty's customs at any port or place, and the person or persons acting for them respectively, shall, upon every reasonable request by any person or persons whomsoever, produce and exhibit for his, her, or their inspection and exami- Proof of Terriers. 63 nation, any oath or affidavit taken or sworn by any owner or own- ers, proprietor or proprietors, (of the vessels mentioned in the act,) and also any register or entry into any book or books of registry re- quired by tliis act to be made or kept, relative to any ship or ves- sel; and shall, upon every reasonable request by any person or per- sons whomsoever, permit him, her, or them, to take a copy or co- pies, or an extract or extracts thereof respectively ; and that the copy or copies of any such oath or affidavit, register or entry, shall, upon being proved to be a true copy or copies thereof respectively, be allowed and received as evidence upon every trial at law, with- out the production of the original or originals, and without the tes- timony or attendance of any collector or comptroller; or other per- son or persons acting for them respectively, in all cases as fully, and to all intents and purposes, as such original or originals, if produced by any collector or collectors, comptroller or comptrollers, or other person or persons acting for them, could or might legally be admit- ted or received in evidence." Proof of Terriers. An old terrier or survey is not in general admissible in evidence "without proof of its having come from the proper repository. 1 Stark. Ev. 170. So an old grant to an abbey, contained in a ma- nuscript entitled " Secretum Abbatis," in the Bodleian library, was rejected, as not coming from the proper repository. Michell v. Rah- hetts, cited 3 Taunt. 91. So an ancient grant to a priory, from the Cottonian manuscripts in the British Museum, was rejected, it not appearing that the possession of the grant was connected with any person having an interest in the estate. Sivinnerton v. Marquis of Stafford, 3 Taunt, 91. With regard to ecclesiastical terriers, the proper repository for them is the registry of the bishop, or of the archdeacon of the diocese, Atkins v. Hatton, 2 Anstr. 386, Potts v. Durant, 3 Anst. 795 ; or the church chest, Armstrong v. Hewitt, 4 Price, 218; and a terrier found in the registry of the dean and chapter of Lichfield has been admitted as against a prebendary of Lichfield, Miller v. Forster, 2 Anstr. 386 (n) ; but merely private custody is not sufficient. Potts v. Durant, 3 Anstr. 789. See also Atkins V. Drake, M^Cl. and Y. 213. On an issue to try the boun- daries of two parishes, an old terrier or map of the limits, drawn in an inartificial manner, brought from a box of old papers relat- ing to the parish, in the possession of the representatives of the rec tor, was rejected, it not being signed by any person bearing a pub- lic character or office in the parish. Earl v. Lewis, 4 Esp. 3. 64 Proof of Deeds and Writings. Proof of Deeds and Writings. Production of instrument under Subpoena duces tecum.'] A wit- ness served with a subpcuna duces tecum, must be ready to pro- duce the writings in his possession, if ordered by the court. Amey v. Long, y East, 473 ; but if the production would have a tendency to subject him to a criminal charge, or to a penalty or forfeiture, the court will excuse the non-production. See Whitaker v. hod, 2 Taunt. 115. So if he state that they are his title-deeds, no judge will ever compel him to produce them. Per Cu?\ Pickering v. JViwes, 1 B. and C. 263;'" and see R. v. Upper Boddington, 8 D. and R. 726." The solicitor to a commission of bankrupt is bound under this subpoena to produce the proceeding under the commission ; Pearson v. Fletcher, 5 Esp. 91. Corson v. Dubois, Holt, 239." Co- hen V. Templar, 2 Stark. 260.p Hawkins v. Hoivard, R. and M. 64 ; but see Bateson v. Hartsink, 4 Esp. 43. Laing v. Barclay, 3 Stark. 42,4 contra ; unless the production be prejudicial to the assignees. Per Gibbs, C. J., Corsen v. Dubois, Holt, 240. ■" An attorney is not bound to produce a composition deed in which his client is interest- ed, and the production of which he conceives may be prejudical to his client, in a suit between other parties. Harris v. Hill, 3 Stark. 140.' Ditcher v. Kenrick, 1 C. and P. 161.* A person producing papers under a spa. due. tec. need not be sworn. Davis v. Dale, 1 M. and M. MSS. Attesting witness must be called.'] Wherever a deed or other instrument is subscribed by an attesting witness, such witness must be called to prove the execution ; and his testimony cannot be dis- pensed with, though the defendant has admitted the execution, in his answer to a bill in Chancery. Call v. Dunning, 4 East, 53 ; but see Bowles v. Longworthy, 5 7. R. 366, ante, p. 26. A notice to quit, Doe v. Durnford, 2 M. and S. 62 ; or a warrant to distrain, Higgs V. Dixon, 2 Stark. 180, if attested, must be proved by calling the attesting witness. But where the attesting witness is dead. Anon. 12 Mod. 607, or blind, Wood v. Drury, 1 Ld. Raym. 734, or insane, Currie v. Child, 3 Campb. 283, or infamous, Jo7ies v. Mason, 2 Str. 833, or absent in a foreign country, or not amenable to the process of the superior courts. Prince v. Blackburn, 2 East, 253, as in Ireland, Hodnet v. Forman, 1 Stark. 90," or where he cannot be found after diligent inquiry, Cimliffe v. Sefton, 2 East, 183, evidence of the witness's handwriting is admissible. With regard to the inquiry necessary to let in such evidence, it has been held, that an inquiry after an at- testing witness to a bond at the residences of the obligor and obligee is sufficient, ibid. ; so diligent inqiiiry at the witness's usual place of residence, and information there, and from the witness's father, "> 8 Eng. Com. Law Reps. 72. ■ 16 Id. 348. » 3 Id. 86. p 3 Id. 341. « 14 Id. 154. r 14 Id. 170. • 11 Id. 456. "S Id. 384. ° 2 Id. 309. Proof of Deeds and Writings. 65 that he had absconded to avoid his creditors. Crosby v. Percy, 1 Campb. 303, 1 Taiait, 365, S. C. ; but see Pytt v. Griffiths, 6 B. Moore, 538,'' contra. So that a twelvemonth since, a commission of bankrupt issued against the witness, to which he had not ap- peared. Wardell v. Farmer, 2 Ca?npb. 282. So, that on inquiry, after the witness at the Admiralty, it appeared by the last report, that he was serving on board of some ship. Parker v. Hosldns, 2 Taunt. 223. So that the witness went abroad twenty years ago, and has never been heard of since. Per Ld. Ellenborongh, Doe v. Johnson, 1 Phill. Ev. 455 (?i) ; see ante p. 18. A witness, on being subpoenaed, said he would not attend, and the trial vvas twice put off in consequence of his absence ; search was then made at de- fendant's house, and in the neighbourhood ; and upon information at the defendant's that the witness was gone to Margate, inquiry was made there without success. It was held that, under these circumstances, evidence of his handwriting was admissible. Burt. V. Walker, 4 B. and A. 697."^ So, it was held sutHcient to show that the witness, some time before, had expressed an intention of leaving the country, that he had reason for so doing to avoid a criminal charge, and that his relations had not seen him since he expressed his intention of going. Kay v. Broohman, 3 C. and P. 555.^ In these cases it seems sufficient to prove the handwriting of the witness, without proving the handwriting of the party, unless with a view to establish the identity of the party ; but slighter evidence of that fact would be sufficient. See A'^elson V. Wittall, 1 B. and A. 19. Gough v. Cecil, MS. cited Selw. JV. P. 516 (n). Indeed identity of name is sufficient evidence of the identity of the parties ; Page v. Mann, 1 M. and M. 79. Kay V. Brookman, Id. 286, 3 C and P. 555, S. C. ;^ even where the de- fendant has signed only by his mark. Mitchell v. Johnson, 1 M. and W. 176. It is not sufficient ground for admitting evidence of the witness's handwriting, that he is unable to attend from illness, and lies without hope of recovery. Hari'ison v. Blades, 3 Campb. 437. See Doe v. Evans, 3 C. and P. 221'. Where the witness was incompetent at the time of the attesta- tion, as where he was interested at that time, Sicire v. Bell, 5 T. R. 371, it is the same in effect as if the instrument had never been attested ; and it will be necessary to prove the handwriting of the party who has executed it. But if a party knowing the witness to be interested, requests him to attest the instrument, he cannot af- terwards object to his competency. Honeyicood v. Peacock, 3 Campb. 196. Where the witness becomes interested after the at- testation, a distinction is to be observed. In general, proof of the handwriting of the witness will be admitted, as where the witness becomes interested as administrator ; Godfrey v. JV'oi-ris, 1 Str. 34, Cunljffe V. Sefton, 2 East, 183; or by marriage with one of the parties. Buckley v. Smith, 2 Esp. 697. So, as it seems, where a ' 17 Eng. Com. Law Reps. 36. '' 6 Id. 569. ' 14 Id. 44G. v 14 Id. 27S. 9 66 Proof of Deeds and Writings. man enters into partnership, and becomes interested in instruments which he has attested, by acquiring a share in the credits, and taking upon himself the responsibilities of the iirm, his handwrit- ing may be proved. See Hovill v. Stephenson, 5 Bingh. 496.'- But where the plaintiti' in an action on a charter-party had communi- cated to the attesting witness an interest in the adventure, subse- quently to the execution of the instrument, it was held that evidence of his handwriting was inadmissible. Hovill v. Stephenson, 5 Bingh. 493.' Where the name of a fictitious person is inserted as witness, Fasset v. Brown, Peake, 23 ; or where the subscribing witness denies any knowledge of the execution, Talbot v. Hodsoji, 7 Taunt. 251,=' {overriding Phipps v. Pai'her, 1 Campb. 412,) Fitz- gerald V. Elsee, 2 Campb. 635, Lemon v. Dean, Id. 636 {n). Boxer V. Rabith, Gow, 175 ; or where the attesting witness subscribed his name without the knowledge or consent of the parties, M'Craio v. Gentry, 3 Campb. 232 ; in these cases it becomes necessary to prove the instrument by calling some one acquainted with the handwriting of the party executing it ; or who was present at the time of execution. Where there are two attesting witnesses, and one of them is in- competent, or his evidence cannot be obtained, the other witness must be called, and evidence of the handwriting of the former wit- ness will not be sufficient. See Cunliffe v.Sefton,2 East, 183. But where a bond is attested by two witnesses, and one of them is dead, and the other beyond the reach of the process of the court, proof of the handwriting of the witness that is dead is sufficient. Adam v. Kerr, 1 P. and B. 360. Execution, how proved."] In proving a deed, it is not essentially necessary that the witness should see the party sign or seal ; if he sees him deliver it already signed and sealed, or sealed only, it will be sufficient. 1 Phill. Ev. 448. Thus, proof by the attesting wit- ness that she was not present when the deed was executed, but that she was afterwards requested by one of the parties to sign Ihe attestation, is sufficient evidence of the execution of the deed by such party, Grellier v. JVeale, Peahe, 146 ; and witnesses may be called to prove the handwriting of the remaining parties, in which case sealing and delivery may be presumed. Ibid. It is not necessary for the attesting witness to prove that certain blanks which existed in the deed were filled up at the time of execution. England v. Roper, 1 Stark. 304.'' Where a party executes a deed with a blank in it, which is afterwards filled up with his assent, and he subsequently recognises the deed as valid, the filling up of the blank will not avoid it. Hudson v. Revett, 5 Bingh. 368 ;' and see Hall V. Chandless, 4 Bingh. 123.'' Some proof of the identity of the party executing the instrument must be given ; and there- » 15 Eng. Com. Law Reps. 515. »2ld.91. •'Sid. 400. <= 15 Id. 467. ns Id. 369. Proof of Deeds and Writings. 67 fore, where the witness to a bond stated that he saw it executed by a person who was introduced under the name of Hawkshaw (the name of the defendant), but could not identify him with the defendant, the plaintilFwas nonsuited. Parkins v. Hawkshaw, 2 Stark. 239.^ Middleton v.Sandford, 4 Campb. 34. Sedvide Hennell V. Lyon, 1 B. and A. 182, ante, p. 57. Where a bond was executed by the defendant, and attested by a witness in one room, and was then taken into an adjoining room, and at the request of the defen- dant's attorney, and in the defendant's hearing, was attested by another witness, who knew the defendant's handwriting, it was held that the execution might be proved by the latter witness, the whole being considered as one entire transaction. Park v. Mears, 2 B. and P. 17; and see Anon. MS. Archib. PI. and Ev. 378. In proving the execution of a deed, the attesting witness frequently states that he does not recollect the fact of the deed being execut- ed in his presence ; but that, seeing his own signature to it, he has no doubt that he saw it executed ; and this has always been receiv- ed as sufficient proof of the execution. Per Bayley, J. Maugham «. Hubbard, 2 M. and R. 7. 8 B. and C. 16, S. C The sealing of the deed need not take place in the presence of the witness ; it is sufficient if the party acknowledge an impression already made to be his seal. Where one partner, in the presence of his copartner, executed a deed for both, but there was only one seal, and it did not appear whether the seal had been put twice upon the wax, it was held, that no particular mode of delivery was requisite, and that it w^as sufficient if a party executing a deed treated it as his own. Bait. v. Dunsterville, 4 T. R. 313. But where a deed is executed under the authority of a power, requiring it to be under the hands and seals of the parties, the parties must use separate seals. Thus, by stat. 8 and 9 Will. III. c. 30, certificates are required to be under the hands and seals of the overseers and churchwardens ; and it was held that a certificate signed by two churchwardens and one overseer, but bearing two seals only, was not a valid certificate. R. v. Anstrey, 1 Phill Ev. 453. 6 M. and S. 319, S. C. The circumstance of a party writing his name opposite to the seal on an instrument which purports to be sealed and deliv- ered by him, is evidence of a sealing and delivery to go to a jury. Talbot V. Hodscn, 7 Taunt, 251. ^ So when a witness is dead, proof of the handwriting of such witness is evidence of every thing on the face of the paper which imports to be sealed by the party. Per Butter, J. Adams v. Kerr, 1 B. and P, 361 ; and see Grellier v. Male, Peake, 146. In the delivery of a deed no particular form is necessary. Throwing down the deed upon a table, with the intent that the other party shall take it up, is sufficient. Com. Dig. Fait, (A. 3). • 3 Eng. Com. Law Rcpi. S32. ' li Id. 147. « 2 Id. 91. 68 Proof of Deeds and Writings. Affixing the common seal is a sufficient delivery of a deed by a corporation. Ibid. Where a deed is delivered by virtue of a power of attorney, the power should be produced. Johnson v. Ma- son, 1 Esp. 89. In some instances a general agent has been pre- sumed to have such authority. Doe v. East London W. W. Co. 1 J\L and jM. 149. But, in general, the agent must be authorized by deed. Bcrhtly v. Hardy, 8 D. and R. 102." A condition previously expressed, though not introduced into tiie act of delivery, is suffi- cient to liiake the delivery of the deed as an escrow. Per Abbott, C. J., Johnson v. Baker, 4 B. and A. 441 ;' a7id see Murray v. Earl of Stair, 2 B. and C. 82." Where a person delivers a deed in the presence of a witness, but retains it in his own possession, there being nothing to show that it was not intended to operate immedi- ately, it will take effect as a deed, and not as an escrow ; and the delivery of a deed to a third party, for the use of the party in whose favour the deed is executed, is good, though that party be not the agent of the latter. Doe v. Knight, 5 B. and C. 671.^ Where a deed was executed by the defendant, a marksman, and the attesting witness was abroad, proof of the handwriting of the witness, and that the defendant had spoken of the term which he took under the deed, was held sufficient. Doe v. Paid, 3 C. and P. CI 3." So the mark may be proved by a person who has seen the party make his mark, and can speak to it. George v. Surrey, 1 M. and M. MSS. Proof of handwriting.'] The handwriting of a party may be proved by a witness who has seen him write ; and, if a witness states that he has only seen him write once, but thinks the signa- ture is his writing, it is evidence to go to the jury, though he says that he can form no belief on the subject. Garrels v. Alexander, 4 Esp. 37. But where the witness had only once seen the party write, and then for the purpose of making him a witness in the suit, he was rejected by Lord Kenyon. Stranger v. Searle, 1 Esp. 15, And where the witness stated that he had merely seen the witness subscribe his name to another instrument to which he was the attesting witness, and was unable to form an opinion respecting the handwriting, without examining such other instrument, it was held insufficient. FiUiter v. Minchin, Manning's Index, 131. However, a witness who has seen a party write, but has forgotten the character of the handwriting, may refresh his memory by refer- ring to the instrument which he saw the party write. Biirr v. Harper, Holt, 420." It was held by Lord EUenborough, that the full signa- ture of an acceptor was not sufficiently proved by a witness who had seen him write his name but once before, when he used only the initial of his Christian name. Powell v. Ford, 2 Stark. 164.° But in a late case Abbott, C. J., said, that he would not abide by k 11 Eng. Com. Law Reps. 251. > 6 Id. 479. 1^9 1(1.33. ' 12 Id. 351. « 14 Id. 483. » 3 Id. 147. » 3 Id. 296. Proof of Deeds and Writings. 69 that decision ; and ruled that a witness who had seen the defend- ant write his name " Mr. Sapio," was competent to prove the sig- nature to a bill, " L. B. Sapio." Lewis v. Sapio, 4 M. and M. 39. A written correspondence with the party, although the witness has never seen him write, will be sufficient to enable him to speak to the handwriting ; for when letters are sent directed to a particu- lar person, and on particular business, and an answer is received in due course, a fair inference arises that the answer was sent by the person whose handwriting it purports to be. Per Lord Kenyan, Cary v. Pitt, Peake, Ev. App. 86 ; and see Thorpe v. Gisburne, 2 C. and P. 21. p So where a witness who had never seen the de- fendant, but had corresponded with a person of the defendant's name living at Plymouth Dock, where the defendant resided, and where, according to other evidence, there was no other person of the same name, stated that the handwriting in question was the handwriting of the person with whom he corresponded, the evidence was held sufficient. Harrington v. Fry, R. and M. 90. A witness who has received letters from the party in answer to letters writ- ten to him by the witness, may prove the handwriting, though the witness has never done any act in consequence of the receipt of such letters. Doe v. Wallinser,Mannijig's Index, 131. To prove the handwriting of a member of parliament, the opinion of a clerk employed to inspect franks, who never had occasion to apply to the member to verify his handwrit-ing, has been held insufficient. Batchelor v. Sir J. Honeywood, 2 Esp. 714. Cary v. Pitt, Peake, Ev. App. 84. A comparison of handwritings, without any other knowledge of the character of the handwriting, furnishes no evidence. See Mac- pherson v. Thoytes, Peake, 20. Greaves v. Hunter, 2 C. and P. 477.1 Though a witness, who has seen a party write, may refer to that writing to retouch and strengthen his recollection, and not merely for the purpose of comparison. Burr v. Harper, Holt, 420, supra.'^ And in the case of ancient documents, where it is impossi- ble for a witness to swear that he has seen the party write, it is suf- ficient if the witness has acquired his knowledge of the handwrit- ing by the inspection of other ancient writings bearing the same signature, and preserved as authentic documents. B. JV. P. 236, Tayhr v. Cooke, 8 Price, 652. Roe v. RavMns, 7 East, 282 {n). But where there is no proof or presunription that the document, with which the instrument produced has been compared, was writ- ten by the party whose handwriting is to be proved, the evidence of the witness who compared them is inadmissible. Randolph v. Gordon, 5 Price, 312. Authentic ancient writings may be laid before a witness at the trial for his inspection ; and after forming a judgment of their character, his belief, as to the handwriting of the document in question, may be inquired into. Doe v. Tarver, R. P 12 Eng. Com. Law Reps. 8. i 12 Id, 225. ' 3 Id. 147. 70 Proof of Deeds and Writings. and M. 143 : and see Bruno v. Rawlins, 7 East, 282. In several cases, where the fact of the genuineness of certain handwriting has been in question, persons skilled in the examination of handwrit- ing, and in (he detection of forgeries, have been allowed to state their opinion, whether a particular writing is in a genuine or imitat- ed character; Goodtille v. Braham,A T. R. 497. R. v. Cator, 4. Esp. 117, 144. Stranger v. Searle, 1 Esp. 14; but such evidence has been rejected at 7»'s/ ^r/?/. 15 Id. 490. Proof of Execution of Powers. 75 Peake, Ev. App. 91. 2 C. and P. 440.-> The thirty years should be computed from the date of the will, and not from the death of the testator. M'Ken'sie v. Frascr, 9 Ves. 5. Calthorpe v. Gough, cited 4 T. R. 707. 3 Stark. Ev. 1694. Doe v. Wolley, 8 B. and C. 22." Witnesses.'] By stat. 25 Geo. II. c. 6, s. 1, if any person shall attest the execution of any will or codicil, to whom any beneficial devise, legacy, estate, interest, gift, or appointment of, or affecting any real or personal estate, other than and except charges on lands, tenements, or hereditaments, for payments of debts, shall be there- by given or made, such devise, &c. shall, so far only as concerns such person attesting the execution of such will or codicil,or any other person claiming under him, be null and void, and such person shall be admitted a witness to the execution of such will or codicil. It has been held by the present Master of the Rolls, Emanuel v. Con- stable,. 3 Russell, 436, and by Sir John Nicholl, Brett v. Brett, 3 Adams, 210,' affirmed by the Delegates, that this clause does not extend to wills of personal estate only ; and that a legacy to a person who is attesting witness to such a will is not void. A con- trary doctrine was held by Sir W. Grant, Lees v. Siunmersgill, 17 Fes. 508. By sec. 2, if a creditor of the devisor, whose will is charged with the payment of the debt, attests the will, he shall be admitted as a witness. By sec. 3, a witness whose legacy has been paid or accepted, or released, or who shall have refused to accept such legacy on tender made, shall be admitted a witness ; and by sec. 5, a legatee dying in -the lifetime of the testator, or before he shall have received a release, or refused to receive his legacy, shall be a competent witness. Where the attesting witness is the hus- band of a devisee who takes an estate in fee in remainder under the will, he is not made competent by the statute. Hatfield v. Thorp, 5 B. and A. 589.™ Proof of E.vecution of Powers. All the circumstances required by the creators of a power, how- ever unessential and otherwise unimportant they be^ must be observed, and cannot be satisfied but by a strict and literal per- formance. Per Lord Ellenborough, Hawkins v. Kemp, 3 East, 440. Thus, where the power was to be executed " by any deed or writ- ing under the hands and seals of the parties, to be by them duly executed in the presence of, and attested by two or more witnesses," it was held, that as the attestation stated only a sealing and de- livery, the power was not duly executed ; Doe v. Peach, 2 M. and M. 576 ; and a subsequent correct attestation indorsed upon the instrument after the death of one of the parties will not remedy the defect. Ibid. Wright v.- Wakeford, 4 Taunt. 214. So if the i 12 Eng, Com. Law Reps. 209. ^ 15 U. 150. ' 2 Eng. Eccles. Reps. 498. "> 7 Eng. Com. Law Reps. 199. 76 Proof of Jlivards. power is to be executed by an appointment to be signed and fuh- Ushed in the presence of, and attested 1)y two vyitnesses, and the attestation omits to mention the publication. Moodie v. Reid, 7 Taunt. 355 ;" and sec Wright v. Barlow, 3 J\I. and S. 512, M' Queen V. Farquhar, 11 Ves. 4G7. Where the attestation is defective, it cannot be supplied by evidence that the witness did in fact see the party si<^n, &c. as well as seal. Doc v. Peach, 2 M. and S. 576. The defect of omitting to state in the attestation the signing of the instrument is cured by stat. 54 Geo. III. c. 168, with regard to powers theretofore executed, but the act is only retrospective. As to the execution of a power under a statute, see R. v. Anstrey, ante, p. 67. Proof of Awar ds. In proving an award, it is necessary to give evidence both of the submission to arbitration, and of the execution of the award ; for without proof of the submission by all the parties, it would not appear that the arbitrator had competent authority to decide the whole question between the parties. Antram v. Chace, 15 East, 209 ; Ferrer v. Oven, 7 B. and C. 427 ;" and see Brazier v. Jones, 8 B. and C. 124." If the submission was to two arbitrators named in the reference, and to a third person to be appointed by them, the appointment of such third person to be arbitrator must be duly proved. A recital of such appointment in the award, signed by the three, will not be sufficient ; nor will it be enough to show that the third person acted with the other arbitrators, and signed the award. .57/7/ v. Plalford, 4 Camph. 19. As to proof of an award under an enclosure act, see R. i\ Haslingfield, 2 M. and S. 558. Proof by Witnesses. Attendance of Witnesses. The process to compel the attendance of witnesses is the writ o( subprsna ad testificandum. Either the writ, or a ticket contain- ing its substance, Goodwin v. West, Cro. Car. 522, 540, must be personally served on the witness within a reasonable time before the trial. Notice to a witness in London, at two in the afternoon, requiring him to attend the sittings at Westminster in the course of the same evening is too short. Hammond v. Stewart, 1 Str. 510. If the cause be made a remanet, the subpoena must be re-sealed and reserved. Tidd, 855. The witness in a civil suit is not bound to attend, unless the reasonable expenses of going to and returning from the place of trial, and of his slay there, are tendered to him at the time of serving the subpoena ; nor, if he appears, is he bound to give evidence before such expenses are paid or tendered. Chap- man V. Poynton, 13 East, 10 (n). Holme v. Smith, 1 Marsh, 410". If • 2 Eng. Com. Law Reps. 133. » 14 Id. 71. p 15 Id. 162. q 4 Id. 345. Proof by Witnesses. 77 the witness is in custody his attendance must be procured by a writ of habeas carpus ad testificandum. Tidd. 858. By stat. 44 Geo. III. c. 102, a judge of the superior courts, and any justice of great sessions in Wales, and in the County Palatine of Chester, may award a writ of habeas corpus to bring up a prisoner from any jail or prison in the United Kingdom, for the purpose of giving evi- dence in any court of record in England. During the time consumed by a witness in going to the place of trial, in his attendance there, and in his return, he is protected from arrest. 2 Roll. Ab. 272 ; Randall v. Gurney, 3 B. and A. 252,' Tidd. 198; though he has attended, upon application, without a subpoena. Per Lord Kenyan, Arding v. Floiver, 8 T. R. 536. In some cases an application may be made to put off the trial on account of the absence of a material witness. An application to put oti a trial beyond the existing sittings, or from sittings to sit- tings, is not allowed on the part of the plaintiff; for he may any time w^ithdraw the record, if he is not prepared to try the cause. But where, from the sudden indisposition of a witness, who may be able to attend in the course of a day or two, or for any other tem- porary reason, the plaintiff is prevented from trying his cause in its order in the paper, yet has ground to believe he shall be able to try it before the sittings are over, it would be too much to make him withdraw his record, and a judge at 7iisi prius will therefore make an order for the trial to stand over till the witness is likely to attend. Per Lord Ellenborough, Ansley v. Birch, 3 Canmb. 335. But in the Common Pleas, the trial can never be put oft on the consent of the parties and counsel at the sittings at nisi prius, but the plaintiff must either proceed to try or withdraw the record. R. M. 50 Geo. in. 2 Taunt 221. Wher^ a motion is about to be made to a judge at nisi prius, for putting off the trial on account of the absence of a witness, notice should first be given to the plain- tiff 's attorney, with a copy of the intended affidavit. 1 Phill. Ev. 16. The affidavit may be made by the defendant, or by his at- torney. Duberley v. Gunning, Peake, 97. See the form, Appendix. Incompetency from want of Understanding. Insane persons, idiots, and lunatics, during their lunacy, are in- competent witnesses. But lunatics, in their lucid intervals, when they have recovered their understandings, are competent. Com. Dig. Testm. {A. 1.) A person born deaf and dumb may, if he has sufficient understanding, give evidence by signs through an inter- preter ; Ruston's case, 1 Leach, C. C. 455, 3rd edition ; or if he can write, that is the more certain mode. Per Best, C. J., Morrison V. Lennard, 3 C. and P. 127.' Children not able to comprehend the moral obligation of an oath cannot be examined; Com. Dig. t 5 Eng. Com. Law Reps. 271. • 14 Id. 23R. 78 Proof by Witnesses. vbi sup. B. AF. P. 293 ; but children of any age may be examined on oath, if capable of distinguishing between good and evil. Brazier^ s case, 1 East, P. C. 443. Where the child cannot be sworn, the account which it has given of the transaction to others is inadmis- sible. A'. V. Tucker, 1 Phill. Ev. 19. Incompetency from want of Religious Principle. Atheists, and such infidels as profess no religion that can bind their consciences to speak (he truth, are excluded from being wit- nesses. B. M P. 292. Omichund v. Barker, Willes, 549. 12 ut in- fidels, as Gentoos, who believe in God, the avanger of falsehood, are received as witnesses. Omichund v. Baker, JVilles, 549. All per- sons ought to be sworn according to the ceremonies of their religion. Id. 547. Aiclieson v. Everett, Cowp. 390. Jews on the Pentateuch; Id. 544 ; Mahometans on the Koran. Morgan's case, I Leach, C. C. 64. So a w^itness w ho declines swearing on the Nev^' Testa- ment, though he professes Christianity, may be allowed to swear on the Old Testament if he considers that mode binding on his con- science. Edmonds v. Bowie, R. and M. 77. The proper time for asking the witness whether the form of administering the oath is binding on his conscience is previous to its administration. But, if the oath is administered in the legal form, before the attention of the court or the counsel is directed to it, the question may be properly asked afterwards. If the witness should reply, that he considers the oath taken to be binding on his conscience, it would be irrele- vant to ask further whether there be any other mode of swearing more binding than that used. The Queen''s case, 2 B. and B. 284.' See Sells v. Hoare, 7 B. Moore, 36. The proper mode of examining a witness for the purpose of try- ing his competency in religious principle, is not to question him as to his particular opinions (as to whether he believes in Jesus Christ), but whether he believes in God, the obligation of an oath, and a future state of rewards and punishments ; Per Buller, J. R. v. Tay- lor, Peake, 11. 1 Phill. Ev. 24 ; and it seems sufficient if he states that he believes in a God who will reward or punish him in this world. Omichund v. Barker, Willes, 550. The solemn affirmation of a quaker had the same effect as an oath in civil cases by Stat. 7 and 8 Will III c. 34 ; and now, by statute 9 Geo. IV. c. 15, an affirmation has the same effect as an oath in all cases civil and criminal. Incompetency from Infamy. Persons convicted of treason, felony, or any species of the crimen falsi, as forgery, perjury, subornation of perjury, &c., are incom- petent to be witnesses. Cmi. Dig. Tesim. {A. 3-4). Co. Litt. 6 b. So a ' 6 Eng. Com. Law Reps. 1J2. Proof by Witnesses. 79 conviction for bribing a witness to absent himself. Clanceifs case. Fort. 209 ; barratry, R. v. Ford, 2 Salk. 690 ; and conspiracy at the suit of the king will render a witness incompetent. Co. Litt. 6 h. But a conviction for conspiring to raise the funds by false ru- mours, does not, as it seems, render the party incompetent ; Crow- therv. Hopwood, 3 Stark. 21;'' but see 2 Dods. 174; but in Bushel v. Barrett, R. and M. 434, it was held by Gaselee, J., after consulting with Littledale, J., that a judgment for a conspiracy to bribe a per- son (summoned as a witness on an information on the revenue laws) not to appear, renders the person convicted incompetent as a witness. A conviction for keeping a gambUng-house does not dis- qualify ; R. V. Grant, R. and M. 270 ; but a person convicted of winning by fraud or ill-practice at certain games, seems rendered incompetent by stat. 9 Anne, c. 14, s. 6, which enacts that he shall be deemed infamous. Outlawry in a personal action does not ren- der the party incompetent. Co. Litt. 6 b. But it is otherwise of outlawry for treason or felony. 3 hist. 212. It is not the punish- ment, but the conviction for the offence, which. causes the infamy. B. JV. P. 292. R. V. Ford, 2 Salk. 690. The competency of infa- mous witnesses is restored in certain cases by statute. Vide infra. Proof of Judgment.'] In order to establish the incompetency of the witness on the ground of infamy, the judgment must be proved in the usual way. R. v. Castle Careinion, 8 East, 78, ante, p. 54. An admission by the witness himself, that he is confined under such judgment, is not sufficient to render him incompetent, however it inay aflfect his credit. Ibid. Competency of infamous loitnesses, hoiv restored?^ The compe- tency of a person who has been rendered an incompetent witness by a conviction is restored by pardon. Com. Dig. Testm. {A. 3-4.) And by statute 7 and 8 Geo. IV. c. 28, s. 13, where the king's ma- jesty shall be pleased to extend his royal mercy to any offender convicted of any felony, punishable with death or otherwise, and by warrant under his royal sign manual, countersigned by one of his principal secretaries of state, shall grant to such offender either a free or a conditional pardon ; the discharge of such offender out of custody, in the case of a free pardon, and the performance of the condition, in case of a conditional pardon, shall have the effect of a pardon under the great seal for such offender, as to the felony for which such pardon shall be so granted. And by stat. 9 Geo. IV. c. 32, s. 3, where any offender hath been or shall be convicted of any felony not punishable with death, and hath endured, ,or shall endure, the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured hath and shall have the like effects and consequences as a pardon under the great » 14 Kng. Com, Law R.eps. 149. 80 Proof by Witnesses. seal, as to the felony whereof the offender was so convicted. By sec. 4 (reciting that there are certain misdemeanors which render the parties convicted thereof incompetent witnesses), where any offender hath been or shall be convicted of any such misdemeanor (except perjury or subornation of perjury), and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, every such offender shall not, after the punishment so endured, be deemed to be, by reason of such misdemeanor, an incompetent witness in any court or proceeding, civil or criminal. Where the pardon is conditional, the perform- ance of the condition must be proved. Haiok. P. C. b. 2, c. 37, s. 45. But where a man has been sentenced to transportation, and confined in the hulks for the term, and discharged at the end of it, it will not destroy the effect of the pardon that he has escaped twice, for a few hours each time. R. v. Badcock, Russ. and Ry. C. C. 248. Where the incompetency is by statute made part of the punishment, as in a conviction for perjury or subornation of perjury, under stat. .5 Eliz. c. 9, the Idng's pardon will not restore the competency of the offender. B. JV. P. 292. But see 2 Harg. Jurid. Arg. 221. Incompetency from Interest. Objection, when taken.'] Regularly, the objection to the compe- tency of a witness ought to be taken on the voir dire, though if his incompetency is discovered at any time during the trial, his evidence will be struck out. lurner v. Pearte, 1 T. R. 720. However, it has been said, that a party who is cognizant of the interest of the witness at the time when he is called, is bound to make his objection in the first instance. Ibid. 2 Stark. Ev. 757. And after the witness has left the box, there is an end of all ques- tion as to his competency. Beeching v. Goiver, Holt, 314.'' So where interrogatories and cross interrogatories were read at a trial, and from the answers it appeared that the witness was interested, Gibbs, C. J., received the evidence, ruling that the objection ought to have been made in a former stage. Ogle v. Pcdeski, Holt, 485.'' The party objecting may examine the witness on the voir dire, and also, if necessary, call another witness to prove the incompetency ; if the objection is raised by independent evidence, and without put- ting a question to the witness, the party who called him cannot be allowed to put a question to him in order to repel the objection. 1 Phil. Ev. 123. Where the witness himself is examined on the voir dire, he may be asked* as to the contents of a written instrument without a notice to produce ; though if the witness produces the instrument on which the objection is founded, it ought to be read. Butler v. Car- ver, 2 Stark, 434.^ The objection of interest may be removed in » 3 Eng. Com. Law Reps. 117. "3ld. 164. *3Id.4l7. Proof by Witnesses, 81 the same manner as it was raised, and therefore, where the witness was objected to as next of kin, in an action by an administrator, but on re-examination answered, that he had released his interest, the objection was held to be properly removed. Ingram v. Dade, 1 PhilL Ev. 124. Bothan v. Swingler, 1 Esp. 164. Peahe, 218, S. C. So where a bankrupt called as a witness, stated on the voir dire that he had obtained his certificate and released his assignees. Park, J., held him competent without the production of the release. Car- lisle V. Eady, 1 C. and P. 284 ;>' hut see Goodhay v. Hendry, 1 M. and M. 319. Where the objection is removed by independent evi- dence, and not on the voir dire, such evidence is governed by the or- dinary rules. Corking v. Jarrard, 1 Campb. 37. Time of acquiring the interest and amountJ] A witness cannot, by making a wager on the point in question, render himself incom- petent, and thus deprive the party of his testimony. Barlow y. Vowell, Skinn. 586. And it has been laid down as a general prin- ciple, that where a person makes himself a party in interest, after a plaintiff or defendant has an interest in his testimony, he may not by this deprive the plaintiff or defendant of his testimony. Per Grose, J. Bent v. Baker, 1 7..R. 37. But it has been since held, that though the witness would not be disqualified by an agreement fraudulently entered into between him and a party for the purpose of taking off his testimony; yet, on the other hand, the pendency of a suit could not prevent third persons from transacting business bona fide with one of the parties; and if an interest in the event of the suit is thereby acquired, the general consequence of law must follow, that the" party so interested cannot be examined as a witness for that party, from whose success he will necessarily derive an advantage. Forester v. Pigou, 3 Campb. 380. 1 M. and S. 9. Where subsequently to the execution of the instrument the witness becomes interested by operation of law, as by becoming executor or administrator, or by marriage, the general rule is that evidence of his handwriting is admissible. Vide ante, p. 65. However small the amount of interest may be, the witness will be incompetent. Burton v. Hinde, 5 T. R. 174. Doe v. Tooth, 3 Y. and J. 19, post, p. 87. What is such an interest as excludes.] The ge/ieral rule is, that no objection can be made to the competency <)( a witness, unless he is directly interested in the event of the rtxit, or can avail him- self of the verdict in the cause so as to gi'C it in evidence on any future occasion in support of his own interest. Per Ld. Kenyan, Smith V. Prager, 7 T. R. 62. Doddivgton v. Hudson, 1 Bingh. 260.' Radhurn v. Morris, 4 Bingh. 649." T 11 Eng. Com. Law Reps. 378. » d id. 314. • 15 Id. 98. 11 82 Proof by Witnesses. There are various instances in which a witness is excluded, on the ground of his being directly interested in the event of the suit Thus a residuary legatee is incompetent in an action brought by the executor to recover a debt duo to the testator. Baker v. Tyr- whitt, 4 Camph. 27. So in ejectment, where the plaintiff has made out a prima facie case, a witness who states that he is himself the real tenant, is incompetent for the defendant, since he would be turned out under a judgment for the plaintiflf. Doe v. Wilde, 5 Taunt. 183," and see 6 Bingli. 394.'= So a witness who has a power of at- torney from the plaintiff to receive the sum recovered, and intends to pay himself thereout a debt due from the plaintiff. Poicel v. Gordon, 2 Esp. 735. Wherever a verdict for the plaintiff would be evidence for the witness in a subsequent action by him, he is incompetent to sup- port the plaintiff's case. Thus, if he claims a customary right of common, he is incompetent to support the case of another person claiming under the same custom, for the verdict would be evidence for himself. Per BuUer, J. Walton v. Shelley, 1 T. R. 302. Ld. Fal- mouth V. George, 5 Bingh. 286;'' and see Le Fleming v. Simpson, 2 M. and R. 169.^ But it is otherwise where the right of common is claimed by prescription as belonging to the estate of another per- son. Ibid. Harvey v. Collison, 2 Sehv. JV. P. 1118. So if the plain- tiff has agreed with the witness, that in case he recovers the lands, the witness shall have a lease of them for so many years, the wit- ness is incompetent ; Gilb. Ev. 122 ; for in case the witness sued on such agreement, the judgment obtained on his own evidence, would form part of his proofs. So a witness is incompetent who is to repay a sum of money to the plaintiff if he fails, but to retain it if he succeeds. Fotheringham v. Greenicood, 1 Str. 129; and see Forrester v. Pigou, M. and S. 9. In an action on the case for negligently driving a coach against the plaintiff's waggon-horse, whereby it died, it was held that the plaintiff's wagoner was incompetent to prove the negligence of the defendant, without a release from his master. Morish v. Foote, 8 Taunt. 455 ;*" and see Rotheroe v. Elton, Peahe, 117, 3rf ed. Wherever a verdict for the plaintiff would be evidence against the witness in a subsequent action, he is incompetent to support the defendant's case. Thus in an action against a master, for the negligence .of his servant, the servant is incompetent to disprove the negligence, swjzq the verdict would be evidence of the amount of damages in an acVion by the master against the servant ; Green V. JVeio River Cojnpanv^ 4 T. R. 589; and so of an agent in an ac- tion against his principal, {or negligence. Gevers v. Mainicaring,Holt, 139.e Hawkins v. Finlayson, 3 C. and P. 305." So the broker who made the distress is an incofnpetent witness for the defendant in »> 1 Eng. Com. Law Reps. 6S. < 19 Id. m. a 15 Id. 449. « 17 Id. 297- ' 4 Id. 164. t 3 Id. 53. »> 14 Id. 319. Proof by Witnesses. 83 an action for an excessive distress. Field v. Mitchell, 6 Esp. 73. So in trover against a sheriff, the officer who made the levy is not a competent witness for the defendant, though he is indemnified by the execution creditor. Whitehouse v. Atkinson, 3 C. and P. 344.' But in an action against a sheriff for negligently executing a writ, an assistant of the sheriffs officer, by him employed to execute the writ, was held to be a competent witness for the sheriff, without a release from the officer, on the ground that the verdict could not be used against the witness, since he was not employed by the defendant. Clarke v. Lucas, R. and M. 32. In an action against the sheriff for an improper return to aji.fa. stating a payment of a sum of money to the landlord for arrears of rent, the landlord is not competent to prove the rent due, for, if the action succeeded, the witness would be liable to the sheriff, and this judgment would be evidenceof special damage. Keightleij v. Birch, 3 Campb. 521. If the judgment could be used in a subsequent action against the wit- ness, to establish the amount of costs, the whole, or a portion of which, the witness would be bound to pay, he is an incompetent witness. Thus bail cannot give evidence for their principal ; Car- ter V. Pearce^ I T. R. 164. Hawkings, v. Inwood, 4 C. and P. 148 ;" nor the wife of the bail ; Cornish v. Pugh, 8 D. and R. 65 ;' nor a person who has paid money into the hands of the sheriff on behalf of the defendant in lieu of bail. Lacon v. Higgins, D. and R. JV. P. C. 46. 3 Stark. 184, S. C." To make the bail a witness, the party may apply to the court to have his name struck off, on justifying other bail. Tidd, 264 ; and see Baillie v. Hole, 1 M. and M. 289, post, p. 93. On the same ground, where an infant sues, his prochein amy, or guardian, 'is not a competent witness for him. James v. Hatfield, 1 Str. 548. Gilb. Ev. 107 ; see also Goodacre v. Breame, Peake, 174; and the case of Jones v. Brooke, 4 Taunt. 464, cited post in Assumpsit on Bills of Exchange. If the judgment for the plaintiff would have (he effect of turning the witness out of possession, he is not a competent witness for the defendant. Doe V. Wilde, 5 Taunt. 183." 1 Marsh. 7 S. C. Dow v. Bingham, 4 B. and A. 672," ante, p. 82. It is a general rule that a bankrupt is incompetent to prove any fact in support of his commission, though he has obtained his cer- tificate, and released his surplus and allowance. Field v. Curtis, 2 Str. 829. Chapman v. Gardner, 2 H. Bl. 279. But a bankrupt who has obtained his certificate, and released the surplus of his es- tate, is competent to prove the handwriting of the commissioners, in order to identify the proceedings taken under the commission against him; for the validity of the commission does not depend upon that signature, but upon the facts contained in the deposition to which the signature is subscribed. Morgan v. Pryor, 2 B. and C. 14.^ i 14 Eng. Com. Law Reps. 339. ^ 19 Id. 315. ' 16 Id. 335. » 14 Id. 176. » 1 Id. 68. G Id, 560. p 9 Id. 8. 84 Proof hy Witnesses. The declaration of a bankrupt also, at the time of his absenting himself, are evidence to establish an act of bankruptcy, by show- ing with what intention he absented himself Ante, p. 21. Raxcson V. Haigh, 2 Bingh. 99.'' 9 B. Moore, S. C. ; and see post Actions by Assignees of Bankrupts. An insolvent is not a competent witness for the plaintitTs, in an action by his assignees, for his future proper- ty is liable ; Delafieid v. Freeman, 4 C. and P. 07 ;' and the creditor of an insolvent who has assigned his effects to trustees, is not a competent witness for the defendant, the insolvent, in an action de- fended by the trustees, it being doubtful whether the estate will pay 205. in the pound. Crerer v. Sodo, 3 C a7id P. 10.' What is not such an interest as excludes.'] The circumstance of the witness standing in the same situation as the party by whom he is called is not sufficient to exclude his evidence. Thus in case of two actions brought against two persons for the same assault, in the action against one the other may be a witness. Per Ashurst, J., Walton V. Shellci/, 1 T. R. 301. So in an action against an un- derwriter, another underwriter on the same policy is a good wit- ness for the defendant. Bent v. Baler, 3 71 R. 27. A witness who believes himself interested, but is not so in fact, is competent ; thus a witness who believes himself under an obligation of honour to in- demnify the bail, but who has entered into no engagement to indem- nify, is competent. Pederson v. StoJJies, 1 Campb. 145. There are, however, authorities that a witness who beUeves himself /e^a/- ly iiiterested is incompetent. See Trelaicney v. Thomas, 1 H. BL 307, a7id the cases cited 1 Phill. Ev. 52 (w). 2 Stark. Ev. 747 {n). Utdess the verdict would be evidence for or against the witness, in a subsequent action, it is no objection to his competency that the jury might hear of and be biassed by it. R. v. Bray, Rep. temp. Hard. 358. The borrower of money for a usurious consideration is a competent witness for the plaintiff, in an action for penalties against the lender. Abrahams v. Biimi, 4 Burr. 2251. In trover by A. against B., C. is a competent witness to prove property in himself Ward v. Wilkinson., 4 B. and A. 410.* Where a witness is equally interested on both sides he is a com- petent witness for either. Thus in an action for money had and received, a witness may prove the money paid by the defendant to him, as agent for the plaintiff, since he is liable to one or the other of the parties. Ilderton v. Atkinson, 7 T. R. 480. So the payee of an accommodation note is competent to prove that he indorsed- it to the plaintiif before it became due in payment for goods ; for, though he would be liable to the plaintiff for goods sold, if the action failed, yet, if it succeeded, he would be liable to the defendant for * 9 Eng. Com. Law Reps. 33.5. ' 19 Id. 277. <= 14 Id. 185. » 6 Id. 466. Proof by Witnesses. 85 money paid. Shuttleworth v. Stephens, 1 Campb. 408. See also Banks v. Kain, 2 C and P. 597." The circumstance that the witness would be exposed to an ac- tion, in case the fact in question is found against his testimony, is not sufficient to render him incompetent. Thus, a person who has filled a corporate ofiice may be called to show the usage of the office, though if his acts be illegal, he would be liable to a quo loarranto. R. v. Bray, Rep. temp. Hardw. 358. The bare possi- bility of an action being brought against a witness is no objection to his competency, and therefore, in an action against an adminis- trator, one of the bond securities for the defendant's due adminis- tration of the intestate's effects, is a competent witness on behalf of the defendant to prove a tender. Carter v. Pearce, 1 T. R. 163; but see Morish v. Foote, 8 Taunt. 455,'' ante, p. 82. Trustees and executors in trust, not taking a beneficial interest, are competent witnesses for their cestui que trust, &c. Gilb. Ev. 120. Lmve v. Jolliffe, 1 W. Bl 366. Goodtitle v. Welford, Doug. 140. And a creditor who has assigned his debt, though only by parol, is a competent witness to increase the fund out of which the debt is to be paid. Heath v. Hall, 4 Taunt. 326. Agents are competent witnesses for their principals for the sake of trade and the common usage of business. B. JV. P. 289. Thus a factor may prove a sale, though he is to receive the extra amount beyond a stated sum. Benjamin v. Porteoits, 2 PL Bl. 590. So servants and carriers are competent, without a release, to prove the payment or receipt of money, or the delivery of goods. Green V. JVew River Company, 4 T. R. 590. Spencer v. Goulding, Peake, 129. An apprentice therefore is a competent witness to prove that he has paid money by mistake, Martin v. Horrel, 1 Str. 647. And in an action against a carrier for not delivering a parcel, his ser- vant is competent to prove the delivery. Ross v. Rowe. 3 Ford's MSS. 98, cited 2 Stark. Ev. 754. But if a person enters into a contract for the purchase of goods in his own name, he is not a competent witness in an action for goods sold and delivered, to prove that he purchased them as agent for the defendant. M'Braine v. Fortune, 3 Campb. 317. The rule, that agents are competent witnesses, does not extend to acts which are tortious, and out of the ordinary course of their employment ; thus in an action against a master for the negligence of his servant, the latter is incompetent to disprove the negligence. Green v. J\eiv River Company, 4 T. R. 589, ante, p. 83. It has been held that the rule, as to admitting the evidence of agents, does not extend to a person who is only employed as an agent in the particular transaction in question. PJdmonds v. Lowe, 8 B. and C. 408, post."" Though, in general, informers entitled to part of the penalty are » 12 Eng. Com. Law Reps. 279. » 4 Id. 164. " 13 Id. 250. 86 Proof hy Witnesses. not competent witnesses, yet, where a statute can receive no exe- cution unless a party interested be a witness, he must then be ad- mitted. GUb, Ev. 128. Thus in an action under stat. 2 Geo. II. c. 24, s. 8, for penalties for bribery at elections, the informer is a competent witness. Busk v. Railing, Say. 289. Howard v. Ship- ley, 4 East, 180. So by various statutes persons interested are made competent witnesses. Thus in an action against church- wardens or overseers for money mis-spent by them, inhabitants of the parish who do not receive alms, or any gift out of the parochial collection, are rendered competent witnesses by stat. 3 Will. III. c. 11, s. 12. So where penalties are given to the use of the poor, for the benefit and exoneration of the parish, or other place, the inha- bitants are rendered competent witnesses by stat. 27 Geo. III. c. 29, provided the penalty does not exceed 20/. R. v. Davis, 6 T. R. 177. So in an action against the hundred by a party robbed, the inhabitants of the hundred may be witnesses by stat. 8 Geo. II. c. 16, s. 15, and the party robbed is competent to prove the rob- bery, and the extent of his loss. B. JV. P. 187. Again, in cases relative to the execution of the highway act, the surveyor of the parish is a competent witness, though part of his salary may arise from penalties imposed by the stat. Stat. 13 Geo. HI. c. 78, s. 69. So by stat. 54 Geo. III. c. 170, s. 9, no inhabitant or person rated or liable to be rated to any rates or cesses of any district, parish, town- ship, or hamlet, or wholly or in part maintained thereby, or executing or holding any office thereof or therein, shall be deemed on such ac- count an incompetent witness for or against such district, parish, &,c. in any matter relating to such rates or cesses, or relating to the boundary between such district, parish, &c. and any adjoining district, &c. or in any matter relating to any order of removal to or from such district, or to the settlement of any pauper in such district, or touching any bastards, chargeable &c. or touching the recovery of any sum for the charges or maintenance of such bas- tards, or the election or appointment of any officer, or the allow- ance of the accounts of any officer of any such district. Under this statute, a person who occupies rateable property within a cha- pelry, is a competent witness to prove that a certain messuage is situated within the chapelry. Marsden v. Stansjield, 7 B. and C. 815.^ The statate renders inhabitants competent in an action by the surveyor of highways against his predecessor for penalties. Hendehourck v. Langston, 1 M. and M. 402 {n). Incompetency of Witness, as Party to the Suit. A person who is a party on the record, though he be merely a trustee, Bauerman v. Rad'enius, 7 T. R. 668, is incompetent as a wit- « 14 Eng, Com. Law Reps. 137. Proof by Witnesses. 87 ness for himself or a joint suitor ; Gilh. Ev. 130 ; though in an ac- tion against the governors of the Foundling Hospital, for work done by the plaintiff for the use of the hospital, Lord Kenyon adnmitted several of the governors as witnesses for the defence. Weller v. Go- vernors of F. H. Peake, 153. So where the mayor and common- alty of London were plaintiffs, and the question was, whether the corporation were entitled to certain tolls, it was held, that freemen, members of the corporation, might be called in support of the claim, because the tolls were received for the benefit of the whole corpo- rate body; R. v. the Maijor and Com. of London, 2 Lev. 231 ; and see 1 Vent. 351. Sutton Coldfield v. Wilson, 1 Vern. 254. Gilb. Ev. 126. Peake's Ev. 174; but this decision has been doubted. B. JV. P. 290. Burton v. Hinde, 5 T. R. 174. And in a very late case, it was held, that a corporator was not a competent witness in an ac- tion brought by the corporation, even though he had released his interest in the subject matter of the suit, since in case of a verdict against the plaintiffs, the corporate funds would be decreased by the amount of the costs. Doe v. Tooth, 3 Y. and J. 19. If the wit- ness is substantially a party to the record he is incompetent, though not actually a party on the record. Thus, in an action against one of several partners, the defendant cannot call one of his copartners, and it is doubtful whether he can render him competent by a re- lease. Simons v. Smith, R. and M. 29 ; see post, p. 89. Where trustees for public purposes are empowered by statute to sue in the name of their treasurer, a trustee is not a competent witness for the plaintiff in an action so brought. Whitmore v. Wilks, 1 M. and M. 214. . There are some exceptions to this rule. — Thus, in an action on the Stat, of Winton, 13 Ed. L c. 2, the plaintiff (the party robbed) may prove the robbery, and the amount of the loss ; but he is not competent to prove any other facts in support of his case, as that the place where he was robbed is within the hundred. B. JV. P. 187. Per Page, J. R. v. Reading, Rep. Temp. Hard. 83. 2 Roll. Ab. 685. The party robbed is competent, though his servant was present. Merrick v. Hundred of Ossulston, cited 3 F. 95. 3 Stark. Ev. Appendix to p. 681. In an action also for a malicious prosecu- tion, the evidence given by the defendant on the indictment is said to be admissible for the defendant on the trial of the action. Cobb V. Car, B. AT. P. 14 ; and see Johnson v. Broivning, 6 Mod. 216. A party to the suit cannot be compelled to give evidence for the opposite party. Thus, in an action of ejectment on the several de- mises of two lessors, one of the lessors is not compellable to give evidence for the defendant, though no title is proved in him ; Fenn V. Granger, 3 Campb. 178; but one of several co-plaintiffs may be called for the defence, if he does not himself object. JVorden v. Wil- liamson, 1 Taunt. 378; but see 3 Stark. Ev. 1061. 88 Proof hij Witnesses. Co-defendant, ichen coinpetent.'] Where a person is arbitrarily made defendant to prevent his testimony, he may, if nothing is proved against him, be sworn as a witness for the other defend- ants; B. AC P. 285; but one of several defendants, against whom nothing is proved, is not, as a matter of right, entitled to a verdict at the close of the plaintiff's case, so as to make him a competent witness for his co-defendants. Emmett v. Butler, 7 Taunt. 607.'' And it has been ruled by Best, C. .1. that a co-defendant against whom the plaintiff has given no evidence, has no right to an ac- quittal until all the other evidence for the defendants is finished. Wright V. Paulin, R. and M. 128; and see Huxley v. Berg, 1 Stark. 9Sj The time of taking such an acquittal is in the discretion of the judge, and it may be taken whenever it is most convenient. Per Lord Tenterden, Carpenter v. Jones, 1 M. and M. 198 (n). And in assumpsit, where one defendant pleads a plea operating in his personal discharge, a verdict may be taken for him on that plea, and he may then be examined as a witness for his co-defendants. Bate V. Russell, 1 M. and M. 332. Where one of several defendants pleads his banlcruptcy and cer- tificate in bar, and a nolle prosequi is entered as to him, he is a competent witness for his co-defendants, for in case of a verdict for the plaintiff, the demand of the co-defendant against the witness would be barred by the certificate. Moody v. King, 2 B. andC. 558.' And even where the defendants were partners in the transaction, it was held that the one who pleaded his bankruptcy and cer- tificate, and against whom a nolle prosequi was entered, was a good witness for his co-defendant, after releasing his surplus, since the co-defendant's demand in case of a verdict for the plaintiflfe would be proveable under the witness's commission. Aflalo v. Feudrinier, 6 Bingh. 306;" 1 M. and M. 334 {n), S, C. But one of several de- fendants cannot be called as a witness, unless he has either been acquitted or a nolle prosequi has been entered as to him. Raven v. Dunning, 3 Esp. 25. Enwiett v. Butler, 7 Taunt. 599.^ Where one of several defendants suffers judgment by default in an action on a contract, he is not competent, for the other defend- ants, to negative the contract, because, if the action should fail as to one, it would fail as to all the defendants ; Bronm v. Fox, 1 Phill. Ev. 78, cited 8 Taunt. 141 ; nor is he competent for the plaintiff, for should the plaintiff succeed, the witness would be entitled to contri- bution against his co-defendants. Broivn v. Broum, 4 Taunt. 752; see also Mant v. Mainwaring, 8 Taunt. 139.-= 2 B. Moore, 13, S. C. J 2 Eng. Com. Law Reps. 232. '2 Id. 313. »9Id. 177. •> 19 Id. 89. M Id. 48. Proof by Witnesses. 80 Where one of several defendants suffers judgment by default in an action o{ tort, he is a competent witness /or A/s co-defendants ; for though they should be acquitted, he would still remain liable, and he is not liable to the costs of the issue tried against the others. Ward V. Haydon, 2 Esp. 553. But where the jury were as well to try the issues as to assess the damages against him who had suffered judgment to go by default. Best, C. J. refused to receive the evidence of the latter for his co-defendants. Mash v. S?7uth, 1 C. and P. 577.'* A co-trespasser who has suffered judgment by de- fault, is not a competent witness for the plaintlfH' against his co-de- fendants. Chapman v. Graves, 2 Camph. 333 {n). Mant v. Main^ roaring, 2 B. Moore, 13. 8 Taunt. 139, -^ 6'. C. In an action of eject- ment, however, against two defendants, one of the defendants who has suffered judgment by default was held by Lord Ellenborough to be a competent w-itness for the plaintiff to prove the other de- fendant in possession, on the ground that the only supposed interest imputable to him was the possibility of the plaintiff suing the other defendant only in an action for mesne profits, in case he recovered in the ejectment. Doe v. Green, 4 Esp. 198. Co-trespasser and co-contractor, ichen competent.'] In an action of trespass, a co-trespasser not sued may be called as a witness for the plaintiff, though left out of the declaration for that purpose, and though satisfaction from the defendant is a discharge as to him. B. JV. P. 286. Chapman v. Graves, 2 Camph. 333 {n). Morris V. Dauhigny, 5 B. Moore, 319,' Berkeley v. Dimery, 10 B. and C. 113. Blachett v. Weir, 5 B. and C. 387." Hall v. Curzon, 9 B. and C. 647 ;" but see Lethhridge v. Phillips, 2 Stark. 546 ;' aiid 2 Stark. Ev. 764 (n). So a co-trespasser not joined may be called by the defendant. Poplet v. James, B. .K P. 286. A witness who is proved to be a partner with the defendant in a contract is not competent to prove that he alone is liable to the plaintiff, for he would dis- charge himself from his share of the costs in case the plaintiff re- covered. Goodacre v. Bream, Peake, 175. Hall v. Rex, 6. Bingh. ISl.'' Evans V. Yeatherd,2 Bingh. 133'. 9 B.Moore, 272. S. C. It is doubtful whether he can be rendered competent by a release from the defendant. Young v. Bainer, 1 Esp. 103. Simons v. Smith, R. and M. 29, Cheyne v. Koop, 4 Esp. 112. A co-contractor with the defendant, not joined, is a competent witness for the plaintiff. Blackett V. Weir, 5 B. and C. 385.^ Faiccett v. Wrathall, 2 C. and P. 305."' Hall V. Curzon, 9 B. and C. 646." So upon an issue on a plea in abatement for non-joinder of another contractor, the latter is a competent witness for the plaintiff to prove that the contract was made with the defendant alone. Hudson v. Robinson, 4 M. and S. 475. _ • It was formerly held that a dormant partner not joined as plain- <• n Eng. Com. Law Rep.«. 478. • 4 Id. 48. '16 Id. 402. e U Id. 237. M7Id. 466. 1 3 Id. 467. M9 Id. 47. > 9 Id. 345. » 12 Id. 130. 12 90 Proof by Witnesses. tiff, might be called as a witness for the plaintiff on the ground that he could not be joined ; Lloyd v. Archboide, Maioman v. Gillett, 2 Taunt. 325 ; but as it is now decided that a dormant partner may be joined ; Skinner v. Stocks, 4 B. and A. 437 ;" it seems to follow that he cannot be called as a witness. 1 Saund. 291, i (n). Incompetency of Husband and Wife. Neither the husband nor wife of a party to the suit is competent to give evidence for or against such party ; B. N. P. 286 ; and so, though not a party to the suit, if the husband or wife of the wit- ness be interested in the event of the suit. Thus, in an action by the executrix of a surviving trustee under a marriage settlement, to recover the value of certain goods sold by the defendant as sheriff under an execution against the husband of the cestui que trust, the husband is not competent to prove on the part of the plaintiff, that the goods have been conveyed to the plaintiff in trust for the sepa- rate use of the witness's wife. Davis v. Dinwoody, 4 T. R. 678. But, in an action between third persons, if the evidence of the wife merely tend to expose her husband to a legal demand, she is not incompetent. Thus, in an action for goods sold and delivered, a wo- man is competent to prove that they were sold, not on the credit of the defendant, but of her husband. Williams v. Johnson, 1 Str. 504. A wife cannot be examined against her husband, in a crimi- nal case, even with his consent. 1 Hale, P. C. 47. But where the plaintiff called the wife of the defendant. Best, C. J. said that he would allow her to be examined if the defendant consented, but not without. Pedley v. Wellcsley, 3 C. and P. 558." A widow can- not be asked to disclose conversations between herself and her late husband. Doker v. Hasler, R. and M. 198 ; hut see Beveridge v. Minter, 1 C. and P. 364.^ Whether a woman who has cohabited with a man as his wife, is on that account an incompetent witness, where he is concerned, has been considered a doubtful question. Campbell v. Ticenloio, 1 Price, 81. On a trial for forgery. Lord Kenyon refused to admit a woman as a witness for the prisoner, who had in court represented her as his wife, but, on hearing an objection taken to her compe- tency, denied his marriage with her. Id. 83, cited by Richards, B. But in a very late case, the court of Common Pleas held that a woman who had lived with the defendant as his wife, and passed by his name, might be called as a witness for him. Batthews v. Ga- lindo, 4 Bingh. 610.'* Declarations of Husband or wife when admissible.'] Where the husband is party to the suit, the general rule is, that the declara- • 6 Eng. Com. Law. Reps. 478. • 14 Id. 448. p ] 1 Id. 421. 1 15 Id. 88. Proof by Witnesses. 91 tions of the wife are not evidence against liim. Thus, in trespass against husband and wife, the wife's admission of a trespass com- mitted by her is not evidence to affect the husband. Denn v. White, 7 T. R. 112. In an action for criminal conversation with the plaintiff's wife, her letters to the defendant are not evidence for the latter, nor is her confession evidence for her husband, but conversations betvi^een her and the defendant are evidence against him. B. JV. P. 28. Letters from the wife to the husband, writ- ten before suspicion of criminal intercourse, are admissible to show their demeanor and conduct, and whether they were living on terms of mutual affection, but it ought to be strictly proved that the letters were written at a time when the wife was not suspected of misconduct. Edwards v. Crock, 4 Esp. 39. Trelawney v. Coleman, 1 B. and A. 90. Where the wife has acted as the agent of the husband by his authority, her admissions will bind him in the same manner as the admissions of any other agent. See ante, p. 31. Incompetency of Counsel or Solicitor. Who are incompetent'] Counsel ; see Curry v. Walter, 1 Esp. 456 ; solicitors, and attornies, are the only persons who cannot be compelled to reveal communications made to them in confidence ; R.v. Duchess of Kingston, 20 How. St 7r. 612; therefore, physi- cians, surgeons, and divines, are bound to disclose such communica- tions. Ibid. So a clerk to the commissioners of the income tax, who is bound by his oath of office not to disclose what he should learn as such clerk, except by the consent of the commissioners, or by force of an act of parliament, is not privileged by his oath of office from disclosing in court what he has learned as clerk. Lee V. Birrell, 3 Campb. 337. A person who acts as interpreter ; Du Barre v. Levette, Peake, 73 ; or as agent ; Parkins v. Hawkshaw, 2 Stark. 239 ;' between the attorney and his client ; or the attor- ney's clerk; Taylor v. Forster, 2 Car. and P. 195.^ R. v. Upper Bod- dington, 8 D. and R. 732 ;* cannot be called upon to reveal a confi- dential communication. So a barrister's clerk cannot be called to prove his master's retainer. Foot v. Hayne, R. and M. 165. Where a disclosure is made to a magistrate or agent of govern- ment relative to matters of state, the name of the person making the disclosure is not allowed to be revealed. Vide post. A person who is not an attorney may be compelled to dis- close communications which have been made to him under a mis- taken idea that he was an attorney. Fountain v. Young, 6 Esp. 113. What matters may be disclosed.'] Matters communicated to an a(- '3 Eng. Com.Law Jleps. 3S2. • 12 Id. 85. ' 18 Id. 348. 92 Proof by Witnesess. torney not in his professional capacity, as if he be under-sheriff at the time, must be disclosed. Wilson v. Rastall, 4 T. R. 753. So matters communicated to him afier the termination of the suit, of which they were the subject, without a view to the objects of the suit. CoJedon i\ Kt'?i7-ick,4 T. R. 431. And so matters commu- nicated before the retainer. Cuts v. Pickering, 1 Vent. 197. All matters not confidentially communicated must be disclosed, as well as all matters which the attorney might have known without being intrusted as attorney in the cause. B.JM'. P. 284. Thus an attor- ney may be called to prove a deed executed by his client, which he has attested. Doe v. Andreirs, Cowp. 846. So to prove the con- tents of a notice to produce, or an erasure in a deed belonging to his client ; B. JV. P. 284 ; or the delivery of a particular paper by his client ; Eiche v. JMokes, 1 J\I. and M. 304 ; or to prove who has employed him to defend the cause ; Levy v. Pope, 1 M. and M. 410; or that he is in possession of a particular document so as to let in secondary evidence of its contents. Bevan v. Waters, id. 235. So a communication between an attorney and his client relative to a matter of fact only, where the character or office of attorney is not called into action, is not privileged. Bramwell v. Lucas, 2 B. and C. 745." An attorney professionally employed to prepare an assignment of goods, which he declines to make, will not be allow- ed to disclose the instructions given him ; Cromack v. Heathcote, 2 B. and B. 4 ;'' nor to prove the contents of deeds or abstracts de- posited with him. R. v. Upper Boddington, 8 D. and R. 732. But if such deeds form no part of his client's title, he is bound to pro- duce them. Doe v. Thomas, 9 B. and C. 288.^ It has been held at 7iisi prius, that only what is communicated to an attorney for the purpose of bringing an action or suit, or relating to an action or suit existing at the time, or contemplated, is privileged from dis- closure. Williams v. Mundie, R. and M. 34 ; and see 2 Swanst. 199 (??). Wadsirorth v. Hamshaic, Mann. Index, 374; but see Cromack v. Heathcote, 2 B. and B. 4.^ Broad v. Pitt, 1 M. and M. 233. 3 C. and P. 518, S. C.^ Formerly the rule was extended far- ther. Thus where one S. who had drawn an indenture between a sheriff and his under-sheriff was called to prove a corrupt agree- ment between them, he was not compelled to discover the matter of it, and (per Holt, C. J.) it seems to be the same law of a scrive- ner. Ano7i. Skin. 404. Vin. ah. {B a) pi. 10. It appears that the witness had been the plaintitl's attorney. Lilly, P. R. 556, S. C. So in Chancery it has been held, that the protection extends not merely to communications made pending an action or suit, but to every communication by the client to counsel, or attorney, or solicitor, for professional assistance. Walker v. Wildman, 6 Madd. 47. The privilege is that of the client, and not of the attorney ; and « 9 Eng. Com. Law Reps. 2S3. v 6 Id. 1. ^ 16 Id. 348. •17 Id. 380. y 14 Id. 423. Proof by Witnesses. 93 the court will prevent the attorney, though he he willing, from making the disclosure, B. JV. P. 284. Wilson v. Rastall, 4 T. R. 759, unless the cHent waive the privilege, which he may do. Merle v. Mare, R. and M. 390. And if the attorney of one of the parties is called by his client, and examined as to a matter which has been the subject of confidential communication, he may be cross-examined as to such matter, though not as toothers. Valliant V. Dodemead, 2 Atk. 524. Incompetency from Interest, how removed. The interest of the witness may be divested before trial by pay- ment or release, and his competency will then be restored. Thus a legatee who has been paid before trial is a competent witness to increase the estate. • Clarke v. Gannon, R. and jf. 31. Seicell v. Stubbs, 1 C. and P. 73." So a release from the defendant, the drawer of a bill of exchange, to the acceptor, will render the latter a competent witness. Scott v. Lifford, 1 Campb. 249. _ In an ac- tion against a minor who appears by guardian, a release from the guardian is insufficient. Fraserv. Marsh, 2 Stark. 41.* A residu- ary legatee is not a competent witness in an action by an executor to recover a debt due to his testator, by releasing all claim to the debt in question ; for the plaintiff, though not liable to pay costs to the opposite side, must pay costs to his own attorney, which would diminish the witness's residue. Baker v. Tynchit, 4 Campb. 27. If the witness offers to release or surrender his interest, and exe- cutes a release accordingly, his competency is restored, though the other party refuse to accept the release. Bent v. Baker, 3 T. R. 35. Goodtitle v. Welford, Dougl. 139. So if the party on whose side the witness is interested makes an offer to remove his interest, and the witness refuses, that will not deprive the party of his tes- timony. 1 Phill. Ev. 128. A release from one of several joint plaintiffs is sufficient. Hockless v. Mitchell, 4 Esp. 86. The bail for the defendant may be made a competent witness for him by the defendant's depositing, in the hands of the officer of the court, a sum equal to the sum sworn to and the costs of the action. The judge will then make an order for striking his name off the bail-piece. ' Baillie v. Hole, 1 M. and M. 289 ; and see ante, p. 83. Examination of Witnesses. Ordering Witnesses out of Court.'] During the examination of a witness the court will, in general, on the application of either of the parties, order all the other witnesses in the cause to go out of court. But it seems, that if the attorney in the cause is a witness • 11 Eng. Com. Law Reps. 319. » 3 Id. 235. 94 Proof by Witnesses. he will be suffered to remain, his assistance being absolutely neces- sary to the proper conduct of the cause. Pomeroy v. Baddelexj, R. and M 430 ; hxit see R. v. fVebb, 3 Stark. Ev. 1733. If the wit- ness remains after being ordered to withdraw, it will not necessarily prevent his being examined, R. v. CoUey, 1 M. and M. 329, it being in the discretion of the judge to permit it or not ; Parker v. J\PH'il- liam, 6 Bingh. G83 ;" except in the Exchequer, where the witness is peremptorily excluded. Att.-General v. Buljnt, 9 Price, 4, 6 Bingh. 684." Leading questions.'] It is a general rule that leading questions are inadmissible on examination of a witness in chief; questions to which the answer Yes, or No, would not be conclusive, are not in general objectionable. Thus a witness called to prove that A. and B. are partners, may be asked whether A. has interfered in the business of B. ; Nicholls v. Dowding, 1 Stark. 81 x" for though he may have interfered, he may not be a partner. So where a wit- ness, called to prove the partnership of the plaintiffs, could not recollect their names so as to repeat them without suggestion, but said he might probably recognise them if suggested. Lord Ellen- borough held that there was no objection to asking the witness whether certain specified persons were members of the firm. Acerro v. Petroni, 1 Stark. 100.* Where a witness on his examin- ation in chief, shows himself decidedly adverse to the party calling him, it is in the discretion of the judge to allow the examination to assume the form of a cross-examination ; and where the witness stands in a situation which of necessity makes him adverse to the party calling him, the counsel may, as a matter of right, examine him as upon a cross-examination. Clarke v. Saffrey, R. andM. 126. Where a witness for the plaintiff was cross-examined as to the contents of a lost letter, and swore that it did not contain a certain passage, and a witness was called for the defendant to contradict this statement. Lord Ellenborough ruled, that after' exhausting the memory of the latter witness as to the contents of the letter, he might be asked if it contained a particular passage recited to him, which had been sworn to on the other side, for that otherwise it would be impossible ever to come to a direct contradiction. Courteen V. Touse, 1 Campb. 43. Where a witness is called to prove a con- tradictory statement made by another witness, the most unexcep- tionable and proper course appears to be, to ask the witness what the other witness said relative to the transaction in question, or what account he gave, and not in the first instance to ask whether he said so and so, or used such and such expressions. 1 Phill. Ev. 257. However, where in cross-examination, a witness being asked as to some expressions which he had used, denied them, and the * 19 Eng. Com. Law Reps. 204. • 2 Id. 305. * 2 Id. 393. Proof by Witnesses, 95 counsel on the other side called a person to prove that the witness had used such expressions, and read to him the particular words from his brief, Abbott, C. J. held that he was entitled to do so. Edmonds v. Walter, 3 Stark. 7.* Cross-examination.'] Upon cross-examination, counsel may lead a witness so as to bring him directly to the point as to the answer j but he cannot, if the witness show a leaning in his favour, go the length of putting into the witness's mouth the very words which he is to echo back again. Hardi/s case, 24 How. St. Tr. 755. It is not competent to counsel, on cross-examination, to question a wit- ness concerning a fact wholly irrelevant (if answered affirmatively) to the matter in issue, for the purpose of discrediting him if he an- swers in the negative, by calling other witnesses to disprove what he says ; Spencely v. De Willott, 7 East, 109; and should the wit- ness answer such question, evidence cannot be given to contradict him. Harris v. Tippett, 2 Campb. 637. R. v. Watson, 2 Stark, 157.' Where a witness is brought into court merely for the purpose of producing a written instrument to be proved by another witness, he need not be sworn ; and unless sworn, the other party will not be entitled to cross-examine him. Simpson v. Smith, MS. 1822. 1 Phill. Ev. 260. Davis v. Dale, 1 M. and M. ante. When once sworn, though he give no evidence for the party calling him, a wit- ness may be cross-examined. Phillips v. Eamer, 1 Esp. 357. A witness called by the plaintiff, and cross-examined by the defend- ant, and afterwards recalled by the latter, may still be examined as upon the cross-examination. Dickenson v. Shee, 4 Esp. 67. A witness cannot properly be asked, on cross-examination, whether he has written such a thing ; the proper course is to put the writing into his hands, and ask him whether it is his writing. Queen's case, 2 B. and B. 293.s If, on cross-examination, a witness admits a letter to be in his handwriting, he cannot be questioned by counsel whether statements such as they may suggest are con- tained in it, but the whole of the letter must be read in evidence. Id. 288. According to the ordinary rule of proceeding, the letter is to be read as the evidence of the cross-examining counsel, as part of his evidence in his turn, after he shall have opened his case ; but if the cross-examining counsel suggest to the court, that he wishes to have the letter read immediately, in order that he may found certain questions on the contents of that letter, which could not be well or effectually done without reading the letter itself, it may be permitted to be read as part of the evidence of the counsel proposing it, and subject to all the consequences of having it re- ceived as part of his evidence. Id. 290. If a wrong witness is called in consequence of a mistake in his name, and is dismissed on the discovery of the mistake, the other • 14 Eng. Com. Law Reps. 145. '3 Id. 273. » 6 Id. 1 12. 96 Proof by Witnesses. side have no right to cross-examine him. Clifford v. Hunter, 3 C. and P. 16." Credit of witness, how iitipeached and supported.'] In order to impeach the credit of a witness, evidence may be given of state- ments made by him, at variance with his testimony on the trial ; De Sailly v. Morgan, 2 Esp. 691 ; but in order to lay a foundation for the evidence of such contradictory declaration or conversation, the witness must be asked, on cross-examination, whether he has made such declaration, or held such conversation.^ Queen^s case, 2 B. and B. 301.' Before you can contradict a witness by showing he has, at some other time, said something inconsistent with his present evidence, you must ask him as to the time, place, and per- son involved in the supposed contradiction. It is not enough to ask him the general question, whether he has ever said so and so. Per Tindal, C. J. Angus v. Smith, 1 M. and M. 474. The witness may be re-examined as to these contradictory statements ; and the coun- sel has a right, upon re-examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also of the motive by which the wit- ness was induced to use those expressions ; but he has no right to go farther, and introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. Queen's case, 2 B. and B. 297.' There is a distinction, how- ever, between conversations which a witness may have had with a party to the suit and a conversation with a third person. The conversations of a party to the suit, relative to the subject matter of the suit, aVe in themselves evidence ngainst him in the suit ; and if a counsel chooses to ask a witness as to any thing which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by his client in the same conversation ; not only so much as may explain or qualify the matter introduced by the previous examination, but even mat- ter not properly connected with the part introduced upon the pre- vious examination, provided only that it relate to the subject mat- ter of the suit. Ibid. It has been doubted, whether, to corroborate the testimony of the witness whose credit has been impeached, evi- dence is admissible that the witness affirmed the same thing before on other occasions ; Gilb. Ev. 150, B. JV. P. 294; but such evi- dence has been held inadmissible, on the ground of its not being given on oath. R. v. Parker, 3 Dougl. 242 , but see Luttrel v. Rey- nell, 1 Mod. 283. See also 2 Evans's Pothier, 251, 1 Stark. Ev. 149, 2 Russ. on Crimes, 635, 2c? edit. If a witness gives evidence contrary to that which the party calling him expects, the party cannot give general evidence to show <> 14 Eng. Com. Law Reps. 189. > 8 Id. 112. Proof by Witnesses. 97 that the witniess is not to be believed on his oath. Eiccr y. Ambrose, 3 B. arid C. 749." Nor, as it seems, is it competent to him to prove that the witness has previously given a different account of the transaction. Id. But he may prove the facts denied, by other witnesses. Lowe v. Jolife, 1 W. B. 365. Alexander v. Gibson, 2 Campb. 555. Richardson v. Allan, 2 Stark. 3oi.' Privilege of not ansicering questions.] Vv'hcre a question is asked, the answer to which would tend to expose the witness to punishment, or to a criminal charge, as to convict him of the office of usury, Gates v. Hardacre, 3 Taunt. 424, he cannot be compel- led to answer ; see the cases collected, 1 Phill. Ev. 2G2 ; and there- fore such questions ought not to be put. Cundell v. Pratt, 1 M. and M. 108. But if the time limited for the recovery of the penal- ty has expired, the witness may be compelled to answer. Roberts v.Allatt, 1 M. and M. 192. And if a witness answers any ques- tions on a matter rendering him liable to forfeiture or punishment, he cannot afterwards claim his privilege, but must answer through- out. East V. Chapman, 1 M. and j\1. 47. The objection to such questions must come from the witness and not from the counsel in the cause. Thomas v. Newton, Ibid. 48. So he cannot be compel- led to answer questions which might subject him to a forfeiture of his estate. Ibid. 264. And see stat. 46 Geo. Ill c. 37. But a wit- ness cannot legally refuse to answer a question relevant to the mat- ter in issue (the answering of which has no tendency to accuse himself, or to expose him to penalty or forfeiture of any kind or na- ture whatsoever), on the ground that the answering of such question may establish, or tend to establish, that he owes a debt, or is otherwise subject to a civil suit. 46 Geo. 111. c. 37. A witness is not compellable to answer questions which are degrading to his character; Cooke's case, 13 How. St. Tr. 334 ; Friend's case, 13 Hoio. St. Tv. 17; Layers case, 16 How. St. Tr. 101 ; though it seems that such questions may legally be asked. R. v. Edwards, 4 T. R. 440 ; R. v. Holding, Archb. Cr. Law, 102; Cundell v. Pratt, 1 M.and M. 108; and seethe cases collected, 1 Phill. Ev. 269. If the witness chooses to answer the question, his answer is conclu- sive. 2 Watson's Trial, by Gurney, 228 ; see also Rose v. Blake' more, R. ajid M. 383. A witness also is not compellable, or indeed allowed to reveal communications, the disclosure of which might be injurious to the interests of the state. Thus, questions tending to the discovery of the channels by which a disclosure of treasonable transactions was made to theofhcers of justice, are not permitted to be asked. Har- dy's case, 24 How. St. Tr. 814. R. v. Watson , 2 Stark. 136.™ So communications between the governor of a colony and his attorney general are confidential, and cannot be disclosed. Wyatt v. Gore, Holt, 299;" and see Cooke v. Maxwell, 2 Stark. 184." So also a k lOEng.Com. Law Reps. 220. • 3 Id. 571. " 3 id. 273. "3 Id. 111. • 3Id. 305. 13 98 Proof by Witnesses, letter written by an agent of government to one of the secretaries of state. Anderson v. Hamilton, 2 B. and B. 156 {n).» Opinion of intncss irhen admissible.'] In general the opinion of a witness as to any of the facts in issue is inadmissible as evidence, unless upon questions of skill and judgment, 'i'hus, in an action of trespass for cutting a bank, where the question is whether the bank, which had been erected for the purpose of preventing the overflowing of the sea, had caused the choking up of a harbour, the opinions of scientific men as to the efTect of such an embankment upon the harbour are admissible. Folkesv. Chadd,3 Dough 157. 1 PhilL Ev. 276, S, C, 4 T. R. 498, S. C. cited. And where the question is, whether a seal has been forged, seal-engravers may be called to show a difference between a genuine impression and that supposed to be false. Ibid, per Lord Mansfield. So a physician who has not seen the particular patient, may, after hearing the evi- dence of others, be called to prove, on oath, the general eflects of the disease described by them, and its probable consequences in the particular case. Peake, Ev. 208. The opinion of a person con- versant with the business of insurance may be asked, as to whe- ther the communication of particular facts would have varied the terms of insurance, but not as to what his conduct would have been in the particular case. Berthon v, Loughman, 2 Stark. 258.'^ Cam- den V. Cowley, 1 W. Blacks. 417. R. v. Wright, Russ. and Ry. C. C. R. 456. But see Durrel v. Bederley, Holt, 286;'' and see ante, p. 70, as to the evidence ofjjersons skilled in forgeries. So the ev- idence of a ship-builder has been admitted on a question of sea- worthiness, though he was not present at the survey. Thornton v. Royal Exchange Ass. Co. Peake, 25. So a person versed in the laws of a foreign country may give evidence as to what, in his opin- ion, would, according to the law of that country, be -the effect of certain facts. R. v. Wakefield, Murray's ed. p. 238. Chaurand v. Angerstein, Peake, 44. Memorandum to refresh witness's memory.] A witness will be allowed to refer to an entry, or memorandum, made by himself shortly after the occurrence of the fact to which it relates, in order to refresh his memory, and this though the entry or memorandum would not of itself be -evidence ; Kensington v. Inglis, 8 East, 289 ; as a receipt on unstamped paper. Rambert v. Cohen, 4 Esp. 213. If the witness cannot speak to the fact from recollection, any far- ther than as finding it entered in a book or paper, such book or paper ought to be produced, and if not evidence, the testimony of the witness amounts to nothing. Doev.Perkins,3 T. R.'749. But where a witness, on seeing his initials affixed to an entry of payment, said, '» I have no recollection that I received the money ; I know nothing p 6 Eng. Com. Law Repa. 49. 1 3 Id. 340. ' 3 Id. 104. Proof by Witnesses. 99 but by the book, but seeing my initials, I have no doubt that 1 re- ceived the money," this was held sufficient evidence. Maugham v. Hubbard, 8. B. and C. 14.' A witness may refresh his memory by references to entries in a book, which he did not wtite with his own hand, but which he examined from time to time while the events recorded were fresh hi his recollection ; Burrough v. Martin, 2 Campb. 112; but he will not be allowed lo refresh his memory with a copi/ of a paper made by himself six months after he wrote the original, though the original is proved to be so covered with figures as to be unintelligible. Jones v. Stroud, 2 C. and P. 196.* However, in one case where a witness refreshed his memory from a paper not written by himself. Lord Ellenborough said, that it was sufficient if a man could positively swear that he recollected the fact, though he had totally forgotten the circumstance before he came into court; and if, upon looking at any document, he can so far refresh his memory as to recollect a circumstance, it is suffi- cient. Hsnry v. Lee, 2 CJiitty, 124." If the witness be blind, the paper may be read over to him. Catt v. Howard^ 3 Stark, 4.» Where a paper is put into the hands of a witness to refresh his memory, the counsel on the other side has a. right to inspect it, without being bound to read it in evidence. Sinclair v. Stevenson, 1 C. and P. 582.x R. v. Ramsden, 2 C. and P. 603.^ EFFECT OF EVIDENCE. Under the present head will be collected the most material cases relative to the elTect of judgments, verdicts, and other judicial pro- ceedings, of instruments of state, of public books and registers, and lastly of awards. First, with regard to the effect of judgments and verdicts in the superior courts of this country. Effect of Judgments and Verdicts. Effect of judgments and verdicts in the superior courts with re- gard to the parties.'] It is a general principle that a transaction between two parties in judicial proceedings ought not t9be binding upon a third ; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal h-om a judgment which he might think erroneous. And therefore the depositions of witnesses in another cause, in proof of a fact, the verdict of a jury finding a fact, and the judgment of the court on facts found, although evidence against the parties, and all claiming under them, are not in general to be used to the prejudice • 15 Eng. Com. Law Reps. 147. » 12 Id. 86- "IS Id. 273. " 14 Id. 14S. » 11 Id. 480. rl2 Id. 283. 100 Effects of Judgments and Verdicts. of strangers. Per de Grey, C. J., Duch. of Kingston's case, 20 How. St. Tr. 538. In order to bind the party, he must have sued, or been sued, in the same character in both suits. Thus in an action by an executor on a bond, he will not be estopped by a judgment in an action brought by him as administrator on the same bond, but he may sliow the letters of administration repealed. Rohinso'ii's case, 5 I\ep. 32 h. In considering the eiiect of judgments the court will look to the real parties to the suit. Thus a verdict in trespass against a person who justified as servant of J. S., was allowed to be given in evidence against the defendant, who also acted under J. S,, J. S. being considered the real defendant in both causes. Kimmers- ley V. Orpe, Dough 517. But such evidence is not conclusive. Ou~ tram v. Moreirood, 3 East, 366. So a verdict against one defend- ant is evidence in a second action against the same, and other de- fendants, if the latter claim under the first defendant. Strutt v. Bo- vino don, 5 Esp. 58, Gilb. Ev. 33. Efect of judgments and verdicts in the stiperior courts with regard to privies'.] Privies stand in the same situation as those to whom they are privy. Thus a privy in blood, as an heir, may give in evidence a verdict for, and is bound by a verdict against his ances- tor. Locke V. Koi^horne, 3 Mod. 141; see Outram v. Morewood, 3 East, 346. So of privies in estate. Therefore, if there be several remainders limited by the same deed, a verdict for one in remainder may be given in evidence for one next in remainder. Pyke v. Crouch, 1 Ld. Raym. 730. B. JV. P. 232. See Doe v. Tyler, Bingh. 390.» So a verdict for or against a lessee, is evidence for or against him in reversion. Co7n. Dig. Ev. (A. 5), Gilb. Ev. 35, 1 Phill. Ev. 308 ; but see B. JV. P. 232, 1 Stark. Ev. 192. So of privies in law; thus a verdict against an intestate, or testator, binds his representatives. R. V. Hebden, And.-'^S^'. In the same manner a judgment against the schoolmaster of a hospital, concerning the rights of his office, is evidence against his successor. Travis v. Chaloner, 3 Guill. 1237. Upon the same principle a judgment of ouster against a mayor wag allowed to be given in evidence to prove the ouster is a quo war- ranto against a third person, admitted by him. R. v. Hebden, 2 Sir. 1109. B. JV. P. 231, 2 Seho. M P. 1089, S. C. ; but such evidence is not conclusive. R. v. Grimes, 5 Burr, 2598. Efect of judgments or verdicts in the siiperior courts with regard to strangers.] There are several exceptions to the general rule, that no one shall be bound by a judgment to which he is not party or privy. In the case of customs, or tolls', verdicts, whether recent or ancient, respecting the same custom or toll, are evidence be- tween other parties. City cf London v. Gierke, Garth. 181. B.JV. P. 233. So in the case of customary commoners, a verdict in an » J9 Eng. Com. Law Reps. 1 1 1 . Effect of Judgments and Verdicts. 101 action for or against one, is evidence for or against another claim- ing in the same right. Per Lord Kenyan, Reed v. Jackson, 1 East, 357. So a verdict with regard to a public right of way. Id. 355. But the verdict in such cases is not conclusive. Biddidph v. Ather, 2 Wits. 23. The judgment m r-em, of a court of exclusive jurisdic- tion, is conclusive as to all the world, vide post, p. 104. Where a judgment is otTered in evidence merely for the purpose of proving the fact that such a judgment has been obtained, and not with a view to prove the facts upon which the judgment was founded, it may be evidence for or against a stranger. Thus a verdict against a master, in an action for the negligence of his servant, is evidence in an action by the master against the servant, to prove the amount of damages. Green v. JVeiu River Co., 4 T. R. 500. Effect of judgments and verdicts with regard to the subject matter of the suii.l A judgment between the same parties, and upon the same cause of action, is conclusive ; and if the cause of action is the same, it is immaterial that the form of action is different. Thus a verdict in trover is a bar in an action for money had and receiv- ed, brought for the value of the same goods. Hitchen v. Campbell, 2 W. Bl. 827. So a judgment in dehi is a bar in an action of as- sumpsit on the same contract. Slade's case, 4 Rej). 94. h. So a judgment in trespass, in which the right of property is determined, is a bar in trover for the same taking. Com. Dig. Action {K. 3). If the party mistake his form of action, and fail on that account, the judgment in such action will not conclude him. Ferrars v. Arden, Cro. Etiz. 668, 2 Saund. 47, p (n). Godson v. Smith, 2 B. Moore, 157.=' If the plaintiff omit to give any evidence of a demand which he might have recovered in a former action, he will not be pre- cluded from giving evidence of it in a subsequent action. Seddon v. Tutop, 6 T. R. 607 ; and see Rave v. Fanner, 4 T. R. 146. Thorpe V. Cooper, 5 Bingh. 129." But where the declaration in the second action is framed in such a manner that the causes of action may be the same as those in the first suit, it is incumbent on the party bringing the second action to show that they are not the same. Lard Bagot v. Williams, 3 B. and C. 239.'= A judgment is only evidence where it is directly upon the point in question, and is not evidence of any matter which came collata- rally in question, nor of any matter incidentally cognizable, nor of any'raatter to be inferred by argument from the judgment. Duch. of Kingston's case, 20 Hoiv. St. Tr. 533. Blackham's case, 1 Salk. 290. Effect of judgments and verdicts in the superior courts with re- gard to the manner in which they are taken advantage of] A judg- ^4Eng.Com. Law Reps. 410. "15 Id. 387. « 10 Id. 62. 102 Eff^^^t of Judgments and Verdicts, ment upon the same point, between the same parties, will operate as an estoppel, if so pleaded in a second action ; but if only olfered in evidf^nce, and not so pleaded, it is not conclusive. Oiitram v. More- icood, 3 East, 3G5, SUtford v. Clark, 2 Bivg/i. 381," 9 B. Moore, 724, S. C. Hooper V. Hooper, MCI. and Y. 509. Thus, where an ac- tion was brought for widening a water channel to the damage of the plaintilF's mill, it was held that a verdict obtained by the de- fendant, on a former action brought by the plaintiff" for the same cause, but not pleaded as an estoppel, was not conclusive, but only evidence to go to the jury. Vooghl v. Winch, 2 B. and A. 662. Admissibility, in civil cases, of verdicts in criminal cases^ It has been said, that a conviction in a court of criminal jurisdiction, is evidence of the same fact, coming collaterally into controversy in a court of civil jurisdiction. B. N. P. 245 ; and see Gilh. Ev. 30. Where the conviction has been procured on the evidence of the party who seeks to avail himself of it in a civil aclion, it has been decided that such conviction is inadmissible ; and it seems also to be very doubtful whether it is admissible when it has been pro- cured, not on the sole evidence of the party, or even where it has been procured entirely on the evidence of others. HiUyard v, Grantham, cited 2 Ves. 246. Gibson v. Maccarty, Rep. temp. Hardw. Sll. Hatkaway v.Barroxo,\ Campb. 151. Burdori v. Broio- ing, 1 Taunt. 520. Brook v. Carpenter, 3 Bingh. 300.^ 2 Evans's Pothier, 313. If on an indictment for an assault the defendant pleads guilty, the record is said to be evidence in an action for da- mages for the same assault, like any other admission by the party. Tr. pr. Pais, 30, Anon. 1 Phill. Ev. 320. But the contrary has been ruled by the present Lord Chief Justice at Nisi Prius. 2 PhilL Ev. 203, 7th edit. Effects of Sentences in the Ecclesiasical courts. The Ecclesiastical Courts having the exclusive right of deciding directly upon the legality of marriages, the temporal courts receive the sentences of the ecclesiastical courts, upon such questions, as conclusive evidence of the fact; Bunting's case, 4 Rep. 29 a; upon the principle that the judgment of a court of exclusive jurisdiction, directly upon the point, is conclusive upon the same parties, upon the same matter coming incidentally in question in another court, for a diflferent purpose. Duch. of Kingston's case, 20 Hoiv. St. Tr. 538, 540. So a sentence in a suit of jactitation of marriage, is evidence in an action in a court of common law to disprove the marriage. Jones v. Bow, Carth. 225. In the last-mentioned case such sentence was held to be conclusive evidence, but in this point the authority of that decision has been overthrown, for a sen- tence in a suit of jactitation has only a negative and qualitied * 9 Eng. Com. Law Reps. 437. • 11 Id. 108. Effect of Sentences in the Ecclesiastical Courts. 103 effect, viz., that the party has failed in his proof, leaving it open to new proofs of the same marriage, in the same cause, and does not conclude even the court which pronounces it. Duch. of Kingston's case, 20 How. St. Tr. 543; and see Blackham's case, \ Salk. 290, and Harg. Law Tracts, Abl. The Ecclesiastical Courts have also the exclusive right of decid- ing directly on the validity of wills of personality, and in the grant- ing of administration. Noel v. Wells, 1 Lev. 235. A probate therefore is conclusive till it be repealed, and no court of conimon law can admit evidence to impeach it. Allen v. Dundas, 3 T. R. 125. See Hargr. Law Tracts, 459. And on this ground the pay- ment of money to an executor, who has obtained probate of a forged will, is a discharge to the debtor of the intestate, though the probate be afterwards declared null. Ibid. But letters of admini- stration are not evidence of any fact which can only be inferred from them, as the intestate's death. Thomson v. Donaldson, 3 Esp. 63, 20 How. St. Tr. 533. Though it cannot be shown in a court of common law that the Ecclesiastical Court has erred in granting probate, yet evidence may be given to show that the Ecclesiastical Court had no jurisdiction, as that there were no bona notabilia within its jurisdiction, B. N. P. 247, or that the supposed intestate is alive. See. Allen v. Dundas, 4 T. R. 130. So the letters of ad- ministration may be proved to be revoked, for this is in affirmance of the proceedings of the spiritual court. B. JV. P. 247. So it may be shown that the seal of the ordinary has been forged, for that does not impeach the judgment of the court ; but it cannot be shown that the will was forged, or that a testator v^'as non compos mentis, or that another person was appointed executor, Jbid. Noel V. Wells, 1 Lev. 236, for those questions are decided by the judg- ment of the Ecclesiastical Court. Effect of Sentences in the Court of Admiralty. Upon questions of prize the Court of Admiralty has exclusive jurisdiction, and therefore a sentence of condemnation in that court is conclusive, and being a proceeding in rem it binds all the world, Kinnersley v. Chase, Park Ins. 490, 6th Ed. And the sentence of a foreign Court of Admiralty also is, by the comity of nations, held to be conclusive upon the same question arising in this coun- try. Hughes V. Cornelius, 2 Show, 232, Bolton v. Gladstone, 5 East, 160. But the sentence of a Court of Admiralty, sitting under a commission from a belligerent power in a neutral country, will not be recognised in our courts. Havelock v. Rockicood, b T. R. 268, Donaldson v. Thompson, 1 Campb. 429. The sentence is only evidence of what is positively affirmed in it, not of what is to be gathered by inference from it. Fisher v. Ogle, 1 Campb. 418, Harneyor v. Lushington, 3 Campb. 89, but see Lothian v. Hender- 104 Effect of Judg7nenis Jn rem, son, 3 B. and P. 525. If the property is condemned on the ground of its not being neutral, the sentence is conclusive evidence of that fact. Barullay v. Lewis, Park Ins. 409, (ith Ed. So where no special ground is stated, but the ship is condemned generally as a good and lawful prize, it is to be presumed that the sentence pro- ceeded on the ground of the properly belonging to an enemy, and the sentence will be conclusive evidence of tiiat fact. Saloucci v. IVoodmas,Park Ins. 471,3 Dougl. S. C. But where is some ambiguity in the sentence of a foreign court of admiralty, so that the precise ground of the determination cannot be collected, the courts here mgy examine the ground on which the sentence proceeded. Ber- nardi v. MoUeaux, Dougl. 574. And if the condemnation does not plainly proceed upon the ground of enemies' property, or of the ship not having complied with subsisting treaties between her own country and that of the capturing power, but on the ground of regulations arbitrarily imposed by the latter, to which neither the government of the captured ship nor the other powers of Europe have been made parties, such a condemnation shall not be admitted as conclusive against a warranty of neutrality. Pollard v. Belly T. R. 444. Baring v. Clagett, 3 B. and P. 215; see Bolton v. Gladstone, 5 East, 155, 2 Taunt. 85. Effect of Judgments in rem. A judgment of condemnation of goods in the Court of Exchequer upon a proceeding in reju, is conclusive evidence as to all the world, and, therefore, after such judgment, trespass will not lie against the officer who seized the goods, to try the point of for- feiture again. Scott v. Sherman, 2 W. Bl 977. But if the pro- ceeding was in personam merely, as a conviction for penalties, and not in rem, the judgment is not evidence in any case in which the parties are different. Hert v. M'JVamara, 4 Price, 154 («). So the judgment of commissioners of excise, on an information for an offence against an excise \a\v, is conclusive, Fuller v. Fotch, Carth. 346, and binds a stranger. Roberts v. Fortune, Hargr. Laiv Tracts, 468 {7i). 1 Phill. Ev. 337; but see Henshaw v. Pleasance, 2 JV. Bl. 1174, co7itra. See also 1 Ridgway, Irish T. R. ], 2 Evans's Pothier, 307. It has been said that an acquittal in the Court of Exchequer, upon a seizure made for want of a permit, is conclu- sive evidence that the permit was regular ; Per Lord Kenyan, Cooke V. Sholl, 5 T. R. 255. Vin. Ab. Evid. {A. b. 22) ; but this opinion has been, with reason, questioned ; for the acquittal does not, like a conviction, ascertain any precise fact, and may have proceeded merely on the ground that sufficient evidence was not produced. 1 Phill. Ev. 338.* * The sentence of a competent court proceeding in rem, is conclusive with re- spect to the thing itself, and operates an absolute change of the property ; by such sentence the right of the former owner is lost, and a complete title given to the person taking under it. JVilliam$ v. Armroyd, 7 Crunch, 423. Effect of Proceedings in Equity. 105 Effect of Proceedings in Equity. Bill in Chancery.'] It is laid down in a book of authority, that a bill in Chancery is evidence against the complainant, for the alle- gations of every man's bill shall be supposed true, nor shall it be supposed to be preferred by a counsel or solicitor, without the par- ty's privity, and therefore it amounts to a confession, and admis- sion of the truth of the fact, and if the counsel have mingled with it any fact that is not true, the party may have his action ; but in order to make the bill evidence against the complainant, there must be proceedings upon it. B. JV. P. 235. S?ioiv v. Phillips, 1 Sid. 221. Taylor v. Cole,7 T. R. 3 {n). Gilb. Ev.49. 1 Stark. Ev. 286. But it is said by Lord Kenyon, that a bill in Chancery is never ad- mitted in evidence further than to show that such a bill did exist, and that certain facts were in issue between the parties. Doe v. Sy- bourn, 7 T. R. 3. 1 Phill. Ev. 341. Ferrers v. Shirley, Gilb. 197. So in the Banbury Peerage case, 2 Selw. JV". P. 714, to a question whether a bill in Chancery can ever be received in evidence, in a court of law, to prove anyfacts either alleged or denied in such bill, the judges answered, that generally speaking, a bill in Chancery cannot be received in evidence in a court of law to prove any fact, either alleged or denied, in such bill. But whether any possible case might be put, which would form an exception to such general rule, the judges could not undertake to say. At all events, a bill in equity cannot be received as evidence against a party not claim- ing, or deriving in any manner under either the plaintilf or defend- ant in the Chancery suit. Jbid. See 1 J)J. and R. 667, 7 B. and C. 789/ Answer.] An answer in Chancery is good evidence against the defendant, as an admission on oath, and it must all be taken toge- ther; therefore if upon exceptions taken a second answer has been put in, the defendant may insist upon having that read to explain what he swore in his first answer. B. JV. P. 237, Gilb. Ev. 50. Where one party reads part of the answer of the other party in evidence, he makes the whole admissible only so far as to wave any objection as to the competency of the testimony of the party making the answer, and he does not thereby admit as evidence, facts which may happen to have been stated by way of hearsay only ; Per Chamber, J., Roe v. Ferrers, 2 B. and P. 548 ; but this point does not appear to have been judicially decided. See ante, p. 34. The answer of a guardian is no evidence against an infant, nor the answer of a trustee against a cestid que trust. B. JV. P. 237. But an answer will be evidence against privies ; thus an answer in a suit for tithes instituted by a vicar against the rector and others (owners of lands in the parish), in which answer the defendants ' 14 Eng. Com. Law Reps. 129. 14 106 Effect of Judgments of Foreign Courts. declared t!ie tithes to belong to the rector, will be evidence in an action for tithes, by a succeeding rector against owners of the same lands. Dartmouth v. Roberts, 10 East, 334. The answer of one de- fendant is not evidence against a co-defendant ; Wych v. Meal, 3 F. Wms. 311 ; but after evidence has been given to connect two per- sons as partners, the answer of one will be evidence against the other. Grant v. JacJcson, Peake, 203, ante p. 31. Whether the an- swer of a married woman can be used as evidence against her after her husband's death, has never been expressly decided. Wi^ottesley V. Bendish, 3 P. Wms. 235. See 1 Stark. Ev. 290. Depositio7is.'\ Depositions in Chancery may be given in evi- dence in an action at law in the same matter, between the same parties, where the witness is dead, or cannot be found, or has fallen sick by the way. B. JV". P. 239. Glib. Ev. 60. But they are not evidence against a person who does not claim under the plaintiff or defendant in the Chancery suit. Banbury Peerage case, cited 1 M. and R. 667, 7 B. and C. 789. Depositions relating to a question of custom or tolls, upon which hearsay would be good evidence, a7ite, p. 20, may be read against a person who was no party to the former suit. B. JV. P. 239. So a deposition taken in a cause be- tween other parties, will be admitted to be read to contradict what the same witness swears at a trial. B. JV. P. 240. Decree.'] A decree in Chancery may be given in evidence be- tween the same parties, or any claiming under them. B. JV. P. 243. Effect of Judgments of Foreign Courts.* The sentence of a foreign court of competent jurisdiction, di- rectly deciding a question, cognizable by the law of the country, seems to be conclusive here if the same question arise incidentally between the same parties, provided the sentence be conclusive by the law of the foreign country. See Roach v. Garran, 1 Ves. 159. Burrows v. Jemino, 2 Str. 733. Stafford v. Clark, 2 Bingh. 380.^ Thus in covenant to indemnify the plaintiff from all debts due from the late partnership of plaintiff, defendant, and D. B., and from all suits, &c., proof of the proceedings in a foreign court in a suit there instituted against the late partners for the recovery of a partnership debt, in which suit a decree passed against them for want of answer, per quod a sequestration issued against the plain- tiff's estate, and he was obliged to pay the debt, &c., is conclu- sive against the defendant, who will not be permitted to show that the proceedings were erroneous. Tarlton v. Tarlton, 4 Jlf. and S. 1 9 Eng. Com. Law Reps. 437. * Foreign judgraenls are autlienticaled, 1, by an exemplification under the great seal ; 2, by a copy proved to be a true copy ; 3, by the certificate of an officer au- thorized by law, which certificate itself must be properly authenticated. These are the usual, and appear to be the most proper, if not the only modes of verify- ing foreign judgments. Church v. Hubbard, 2 Crunch, 187. Effect of Judgments of Inferior Courts. 107 20. But if it appears on the face of the foreign proceedings, tliat the judgment is founded in injustice, as where it appears that the defendant has never been summoned, in which case the court could have no jurisdiction, the judgment will not be conclusive, and the courts here will not give enect to it. Buchanan v. Rucker, 9 East, 192, 1 Campb. 63 ; a^id see Cavan v. Stewart, 1 Stark. 525." In order to render the judgment of a foreign court conclusive in this country, it must appear, that it was final and conclusive in the foreign court in which it was given. Plummer v. Woodburn, 4 B. and C. 637.* It seems, that in an action of debt or assumpsit brought in this country upon a foreign judgment, such judgment is to be consi- dered only as a prima facie evidence of the debt, and not con- clusive ; for it is not relied upon as an estoppel, but as a consider- ation prima facie sufficient to raise a promise. Walker v. Witter, 1 Dougl. 1. Sinclair v. Fraser, 1 Dozigl. 5 (n), 20 St. Tr. 469, S. C. Per Eyre, C. J. Phillips v. Hunter, 2 H. Bl. 410. Per Ld. Mans- field, Herbert v. Cook, Willes, 37 {n). 3 Dougl. 101, S. C. Arnott V. Redfern, 3 Bingh. 357," 1 Phill. Ev. 332 ; but see 1 Stark. Ev. 208, 2 Evans's Poth. 311- A judgment in one of the superior courts in Ireland, since the union, is not a record in England, and assumpsit lies upon such judgment here. Harris v. Saunders, 4 B.andC. 411.^ So an. action will he upon the decree of a colonial court of equity, for the balance of an account between partners. Henley v. Soper, 8 B. and C. 16,™ 2 M. and R. 153, S. C. The certificate of a vice-consul has been compared to a foreign judgment, but it will not be admitted as evidence of the facts stated in it. Thus the certificate of a British vice-consul in a foreign country is not admissible to prove the amount of a sale, though by the law of that country he was constituted general agent for all absent owners of goods, and was authorised and compelled to make the sale in question. Waldron v. Combe, 3 Taunt. 162. Effect of Judgments of Inferior Courts. It seems, upon principle, that the judgment of an inferior court, whether of record or not of record, is conclusive between the same parties upon the same subject matter. See Moses v. Macferlan, 2 Burr. 1009, Galbraiih v. Neville, Dougl. 5 (w), 2 Evans's Poth. 303, Briscoe v. Stephens, 2 Bingh. 210," 1 Stark. Ev. 208. Though it has been said, that inferior courts, not of record, have not the privi- lege of not having their judgments controverted. Per Ld. Mans- field, Walker v. Witter, Dougl. 3. So Lord EUenborough ruled, that the judgment in the Lord Mayor's Court was prima facie ev- idence that the debt arose within the City ; but that being the record of an inferior court the defendant might prove the contrary. Hux- ham V. Smith, 2 Campb. 19. So Abbott, C. J., ruled, that the »« 2 Engr. Com. Law Reps. 496. ' 10 Id. 424. ^ 13 Id. 1. > 10 Id. 373. " 15 Id. 147. » 9 Id. 387. 108 Effect of Inquisitions^ ^'■c. judgment of the county court was not conclusive. Barnes n. IVinklar, 2 C. and P. 345." So it has been held that the judgment of an inferior court may be avoided, by proof that the cause of ac- tion did not arise within the jurisdiction of the court. Herbert v. Cooke, 3 Doug. 101, IVi/lrs, 36 {n), S. C.Briscoe v. Stephens, 2 Bingh. 213." Where a cause is removed from an inferior court, after a judg- ment by default, that judgment is not evidence against the defend- ant in the superior court. Boltings v. Firhy, 9 B. and C. 762.* . Effect of Inquisitions, <$/-c. Effect of coroner's iriquest.'] Although an inquisition offelo de se, taken before the coroner super visum corporis, was formerly con- sidered conclusive evidence of the fact against the executors or ad- ministrators of the deceased ; 3 Inst. 55 ; yet it is now held, that such inquisition may be removed into the King's Bench and tra- versed. 1 Saund. 362 {n). The ?mAmg oi fugam fecit \s, however, still held (though not, as it seems, upon principle) to be conclusive. Ihid. Effect of an inquisition cf lunacy, <5'C.] An inqusition of lunacy is evidence against third persons, though not conclusive. Sergeson V. Sealey, 2 Atk. 412, Faulder v. Silk, 3 Campb. 126. So an inquisition under a commission froni the Court of Exche- quer, in the reign of Elizabeth, to inquire whether a prior or the crown, after the dissolution of the priory, was seized of certain lands, was held to be admissible, but not conclusive evidence of the facts stated in the return, looker v. Duke of Beaufort, 1 Bur?'. 146. So the surveys of the church and crown lands taken by commissioners, under the authority of parliament, during the com- monwealth, are admissible in evidence; and the originals being de- stroyed in the fire of London, copies of them from unsuspected re- positories may be received. UnderhiU v. Durham, 2 Gioill. 542. Bullen V. jVichcI, 4 Dow, 325, Rowe v. Ireland, 11 East, 284. The valor beneficiorum, or Pope Nicholas's taxation, is a docu- ment of the same nature, and is admissible to prove the rate and value at which the persons employed in that taxation thought fit, at that time, to estimate ecclesiastical benefices. Bullen v. Mitchell, 2 Price, 477. A new valor beiieficiorum was made, 26 Hen. VIII., by virtue of commissions under the great seal, and the surveys under these commissions are admissible to prove the value of the first fruits and tenths of ecclesiastical promotions at that period, though they are not conclusive on such questions. Per Richards, C. B. Drake v. Smyth, 5 Price, 377. Michel v. Bullen, 4 Dow, 324. 12 Eng. Com. Law Repg. 161. p 9 Id. 387. t 17 Id. 492. Effect of Convictions^ Sentences, Sfc. 1 09 Domesday-book, being a work compiled by the authority of the government, is admissible to prove the tenure of the lands then surveyed ; and where a question arises whether a manor is ancient demesne, the trial is by inspection of Domesday-book. Gilb, Ev. 76. An inquisition by a sheriff's jury to ascertain the value of pro- perty, for the information of the sheriff, is not conclusive, or, as it seems, admissible evidence against the sheriff; Luchow v. Earner, 2 H. Bl. 437 ; nor is it evidence in his favour; GIossop v. Pole, 3 M. and S. 175 ; unless, perhaps, if the question were whether the sheriff has acted maliciously. Per Ld. Ellenborough, id. 177. Effect of Convictions, Sentences, ^c. It is a general rule, that where justices of the peace have an authority given to them by act of parliament, and they appear to have acted within the jurisdiction so given, and to have done all that they are required by the act to do in order to originate their jurisdiction, a conviction drawn up in due form, and remaining in force, is a protection in any action brought against them for the act so done. Pe?' Abbott, C. J. Basten v. Carew, 3 B. and C. 653."^ Therefore, where in trespass against two magistrates for giving the plaintiff's landlord possession of a farm as a deserted farm, the de- fendants produced in evidence a record of their proceedings, under stat. 11 Geo. 11. c. 19, s. 16, which set forth all such circumstances as were necessary to give them jurisdiction, and by which it appeared, that they had pursued the directions of the statute, it w-as held that this record was not traversable, and was a conclusive answer to the action. Ibid. So in trespass against magistrates for taking and detaining a vessel, a conviction by them under the bum-boat act, is conclusive evidence that the vessel in question is a boat within the meaning of the act, and properly condemned. Brittain V. Kinaird, 1 B. and B. 432 ;' and see Wickes v. Clutterbuck, 2 Bingh. 436 ;* Rogers v. Jones, 3 B. and C. 409." Fawcett v. Fowlis, 7 B. and C. 394.^ Upon the same principle which makes a conviction conclusive, it has been held, that a certificate from commissioners under the act for settling the debts of the army, stating the sum due from the defendant to the plaintiff, is conclusive in an action brought to re- cover the money. Moody v. Thurston, 1 Str. 481. See Att. Gen. V. Davison, 1 M'C. and Y. 160. So the sentence of expulsion of a member of a college by the master and fellows, is conclusive evidence of that fact, and cannot be impeached in a court of law. R. v. Grundon, Cowp. 315. So a sentence of deprivation by a visitor of a college, is in the same manner conclusive. Phillips v. Bury, I Ld. Raym.b; 2 T.R. 346, ' lOEng. Com. Law Rep«. 211. • 6 Id, 137. '9 Id. 490. « 10 Id. 134. ' 14 Id. 59. 110 Effect of Bishop's Certificate. S. C. ; see Harg. Law Tracts, 465. So also in ejectment against a schoolmaster who had been removed by sentence of the trustees of the school (such power being vested in them ) for misbehaviour, it was held that it was not necessary for the lessors of the plaintiff to prove the grounds of the sentence, and that it was not compe- tent for the defendant to disprove them. Doe v. Haddon, 3 Dough 310. Eject of Court Rolls. Court rolls, whether of the court baron or customary court, are evidence between the lord of the manor and his tenants or copy- holders, B. JV. P. 247. 1 Phill Ev. 397, and ancient writings not properly court rolls, nor signed by any of the tenants, but found among the rolls, and delivered down from steward to steward, pur- porting to have been made assensu omnium tenentium, have been admitted as evidence to prove the course of descent within a manor. Denn v. Spray, 1 T. R. 466. So an entry on the court rolls of a manor, stating the mode of descent of lands in the manor, is evi- dence of such mode, though no instance of any person having taken according to it be proved. Roe v. Parker, 5 t. R. 26 ; and see Doe V. Askew, 10 East, 520. So in an action by a copyholder against the freeholder of a manor, certain parchment writings preserved amongst the muniments of a manor, dated in 1698 and 1717, pur- porting to be signed by certain copyholders of the manor, stating an unlimited right of common in the copyholders, were held to be evidence of the reputation of the manor at the time, as to a prescrip- tive right of common set up by the defendant. Chapman v. Cow- Ian, 13 East, 10. Effect of Bishop's Certificate. In certain cases involving matter of law as well as matter of fact, see Omichund v. Baker, Willes, 549, the certificate of the bishop is conclusive evidence. Thus, where issue is joined upon the record in certain real writs, upon the. legality of a marriage, or its imme- diate consequence " general bastardy," or in like manner in some other particular instances lying peculiarly within the knowledge of the spiritual court, as profession, deprivation, and some others, in these cases upon the issue so joined, the mode of trying the question is by reference to the ordinary, and his certificate when returned, received and entered upon the record, in the temporal courts, is a perpetual and conclusive evidence against all the world on that point. Per de Gray, C. J., Duch. of Kingston's case, 20 Hffw. St. Tr. 339 ; and see Com. Dig. Certificate. In bastardy the trial by the certificate of the bishop takes place at this day only in the case of a general allegation of bastardy, and that only so long as the party is living, and not only living, but a party Fffed of State DociimentSy &rc. Ill in the suit, and not only a party to the suit but adult ; in matri- mony, in the two cases only of dower and appeal. Per Ld. Lough- borough, llderton v. llderton, 2 H. Bl. 156. Effect of State Documents, Sfc. Acts of Parliament.'] The preamble of a public act of parlia- ment reciting the existence of certain outrages, is evidence to prove that fact, because in judgment of law every subject is privy to the making of them. R. v. Sutton, 4 M. and S. 532. Proclamations.'] The King's proclamation being an act of state, of which all ought to take notice. Per Trehy, C. J. Wells, v. Wil- liams, 1 Ld. Raym. 283, is evidence to prove a fact recited in it, viz. that certain outrages had been committed in different parts of certain counties. R. v. Sutton^ 4 M, and S. 532. Journals of Parliament] The Journal of the House of Lords containing an address of the Lords to the King, and the King's answer, in which certain differences are stated to exist between the King of England and the King of Spain, is admissible to prove the fact of such differences existing. R. v. Franklin, 17 How. St. Tr. 637. R. V. Holt, 5 T. R. 445. But the resolutions of either house of Parliament are not evidence of facts therein stated ; thus the resolution of the House of Commons, stating the existence of the popish plot, was held to be no evidence of that fact Gates's case,. 10 How. St. Tr. 11G5, 1167. Gazette.] The gazette is evidence of all acts of state there in- cluded ; as where it stales that certain addresses have been pre- sented to the King, it is evidence to prove that fact, R. v. Holt, 5 T. R. 436. So proclamations there printed, may be proved by production of the gazette. Ibid. 443, Attorn. Gen. v. Iheakstone, 8 Price, 89. But the gazette is not evidence of matters therein, contained, which have no reference to acts of state, as a grant by the King to a subject of a tract of land, or of a presentation j See R. V. Holt, 5 T. R. 443 ; or of the appointment of an officer to a commission in the army. Kirwan v. Cockburn, 5 Esp. 233 ; R: v. Gardner, 2 Campb. 513. It is usual to insert advertisements of the dissolution of partnerships in the gazette, but it seems that unless the party to be affected by the notice be proved to be in the habit of reading the gazette, it will not be evidence of such notice. Graham v. Hope, Peake, 154 ; Godfrey v. Macauley,ibid. 155 (n) ; hut see S. C. 1 Esp. 371, differently reported; and see Newsome v. Coles, 2 Campb. 617 ; and Gorham v. Thompson, Peake, 42. Lord Ellenborough in one case admitted the gazette as evidence, but observed, that unless it were proved that the party were in the 112 Effect of Public Booh, Src. habit of reading it, the evidence would be of little avail. Leeson V. Holt, I Stark. 186 ;'' see also Munn v. Baker, 2 Stark. 255.^ It seems not to be necessary, in giving the gazette in evidence, to prove that it was bought of the gazette printer, or where it came from. Forsijt/i^s case, Russ. and Ry. C. C. R. 277. A paper from the secretary of state's office, transmitted by the British ambassador at a foreign court, and purporting to be a de- claration of war by the government of that country, against ano- ther foreign state, is admissible for the purpose of showing the precise period of the commencement of the war. Theluson v. Gosling, 4 Esp. 206. The articles of war printed by the king's printer, are evidence of such articles, R. v. Withers, cited 5 T. R. 446, of which it seems the court will take judicial notice. Brad- ley V. Arthur, 4 B. and C. 304.^ Effect of Public Books, Sfc. Public books and documents are, in many instances, evidence of the facts there recorded. Thus the register of the Navy Office, with proof of the usage to return all persons dead, is evidence to prove the death of a sailor. B. JV. P. 249. The book at Lloyd's stating the capture of a ship is evidence of such capture ; but it is not evidence of notice of the loss, unless to a person who is a sub- scriber at Lloyd's, and in the habit of examining the books there. Abel V. Potts, 3 Esp. 242. The log-book of a man-of-war is evi- dence to prove the time of that vessel sailing as convoy, in an action on the insurance of another vessel. D^ Israeli, v. Joivett, 1 Esp. 427. The bank books are evidence to prove a transfer of stock. Breton v. Cope, Peake, 30. So the book from the master's office in K. B. to prove a person an attorney of that court, without pro- duction of the roll. R. v. Crossley, 2 Esp. 524. So the poll books at an election. Mead v. Robinson, Willes, 424. So the books of the King's Bench and Fleet prisons, are admissible to prove the dates of the commitment and discharge of prisoners ; R. v. Aickles, Leach, C. L. 436 ; but not the cause of commitment, of which the commitment itself is the best evidence. Salte v. Thomas, 3 B. and P. 188. The copy of an official paper, containing the number of passengers on board a vessel, made in pursuance of an act of par- liament by the captain, and deposited at the India House, is admissible to show the number and description of the persons on board the vessels. Richardson v. Mellish, R. and M. 66. 2 Bingh. 229,* S. C. Excise books, transcribed from the master's specimen paper, are evidence against him without calling the officers who have transcribed them, as it is said ex necessitate rei. R. v. Grims- wood, 1 Price, 369. Entries in the books of the clerk of the peace, of deputations many years since granted to gamekeepers by the owner of a manor, are evidence to show that the party there w 2 Eng. Com. Law Reps. 349. » 3 Id. 339. r 10 Id. 340. ' 9 Id. 391 = Effect of Public Books, S,'c. 113 mentioned exercised the right of appointing gamekeepers by apply- ing to the clerk of the peace to get certificates, without production of the deputation themselves. Htint v. Andreas, 3 B. and A. 341 ;* see Rushicorth v. Craven, 1 M'C. and Y. 417. Returns of sales of corn under 1 and 2 Geo. IV. c. 87, are not conclusive evidence to show the parties to whom the corn was delivered. Woodleij v. £row7i, 2 Bingh. 527." An entry in a vestry book, stating tliat A. was duly elected treasurer of the parish, at a vestry duly held in pursuance of notice, is evidence of such election ; R. v. Martin, 2 Campb. 100 ; and a wardmote book, to prove (he election of a con- stable in the city of London. Underhill v. Witts, 3 Esp. 56. So in an action for disturbing the plaintiff in the enjoyment of a pew, claimed in right of his messuage, an old entry in the vestry book signed by the churchwardens, stating repairs of the pew by a former owner of the messuage (under whom the plaintiff claims), in consi- deration of his using it, is evidence to prove the plaintiff's title, for it is made by the churchwardens on a subject within the scope of their official authority. Price v. Litilewood, 2 Campb. 288. By stat. 17 Geo. II. c. 38, s. 14, true copies of all rates and assessments made for the relief of the poor are to be entered in a book provided for that purpose, by the churchwardens and overseers of every parish ; and by stat. 42 Geo. III. c. 46, the particulars of parish in- dentures are directed to be entered in a book, which book shall be deemed sufficient evidence in courts of law of the existence and particulars of such indentures, in case it shall be proved that the originals are lost or destroyed. Corporation books are evidence be- tween members and the corporation, but they are not evidence in favour of the corporation against a stranger : Mayor of London v. Mayor of Lynn, 1 H. Bl. 214 (n). Marriage v. Lawrence, 3 B. and A. 142 ;" unless the entry be of a public nature. Per Abbott, C. J., ibid. R. V. Mothersell, 1 Str. 93. In an action by a corporation for tolls, entries in their own books are not admissible for them. Brett V. Beales, 1. M. and M. 429. Rolls or ancient books, in the herald's office, are evidence to prove a pedigree, but an extract of a pedi- gree, proved to be taken out of records is not, because such extract is not the best evidence, as a copy of such records might be had. B. JV. P. 248. King v. Forster, Sir T. Jones, 224. The herald's vi- sitation books of counties are also evidence on a question of pedi- gree. Pitton V. Walter, 1 Str. 162 ; see Vin. Ab.Ev. {A. b. 39.) A general history may be given in evidence to prove a matter relat- ing to the kingdom in general ; B. JV. P. 248. Vin. Ab. Ev. (A. b. 46) ; thus chronicles have been admitted to prove, that at a certain period King Philip had not assumed the style given him in a deed. Male V. Fay, cited 1 Salh. 282. So Speed's Chronicle was admit- ted as evidence of the death of Edward the Second's queen. • 5 Eng. Com. Law Reps. 312. i> 9 Id. 309. ' 6 Id. 245. 15 114 EJff^ct of Public Registers. Brounher v. Atkins, Skin. 14. But a general history is not evidence to prove a particular custom. B. J\'. P. 248. Thus Camden's Bri- tannia was held to be no evidence on an issue whether, by the cus- tom of Droitwich, salt pits could be sunk in any part of the town. Stainci' v. Burgesses of Droitwich, 1 Salk. 282. By the same prin- ciple under which entries in public books are admitted to prove the facts there stated, it has been held that the post-office marks, in town or country, proved to be such, are evidence that the letters, on which they are impressed, were in the office to which those marks belong, at the dates those marks specify. Plumer's case, Russ. and Ry., C. C. R. 204 ; and see Fletcher v. BraddyU, 3 Stark. 64."* Archangelo v. Thom/pson, 2 Camph. 623. Cotton v. James, 1 M. and M. 276. An almanack is good evidence to prove that a particular day was Sunday. Page v. Faucet, Cro. Eliz. 227. Effect of Public Registers. The registers of christenings, marriages, and burials, preserved in churches, or copies of them, are good evidence. B. JV. P. 247. Where it appeared, that the practice was to make entries in the general parish register once in three months, out of a day-book, in which the entries were made immediately after the christening or on the same morning, and in the day-book, after a particular entry, the letters B. B. (signifying base born) were inserted, which were omitted in the register, it was held that evidence of the day-book could not be received, for that there could not be two parish re- gisters. May V. May, 2 St7\ 1073. The register is no evidence of the identity of the parties. Birt v. Barlow, Dongl. 162 ; ante, p. 50. The books of the Fleet prison are not, as it seems, evidence to prove a marriage, for they are not made by public authority. Rejected by Ld. Kemjon, Read v. Passer, Peake, 231. 1 Esp. 213, S. C. By de Grey, C. J. Howard v. Burtonwood, Peake, 233 (w). By Lord Hardivicke and Lee, C. J. ibid. By Le Blanc, J. Cooke v. Lloyd, Peake Ev. Appx. 78. By Burrough, J. Doe v. Passingham, MS. Shrews. Sum. Ass. 1826. Said to have been admitted by Heath, J. Doe, dem. Passingham v. Lloyd, Shreivs. Sum. Ass. 1794, Peake, 231 ; and see Doe v. Madox, 1 Esp. 197. Lloyd v. Passingham, 16 Ves. 49. It seems, however, that declarations by the parties, that they have been married at the Fleet, are evidence of a marriage. Lawrence v. Dixon, Peake, 136. Reed v. Passer, id. 231. The copy of a register of a foreign chapel is not admissible in our courts to prove a marriage abroad ; Leader v. Barry, 1 Esp. 353 ; nor of a dissenting chapel, since it is not a public document. Newham v. Raithby, 1 Phillimore, 315.'= So a copy of a register of Baptism kept in the island of Guernsey, is not admissible. Htet v. Le Mesu- rier, 1 Cox's Ca. 275. * 14 Eng. Com. Law Reps. 164. « 1 Eng. Eccles. Reps. 90. Effect of ^iimrds. 115 An entry in a register of baptism, as to the time of a child's birth, is not evidence of the age. Wihen v. Law, 3 Stark. 63/ R. v. Clap- ham, 4 C. and P. 29.s Nor is the register of the christening of a child in a particular parish evidence, when unaccompanied by other circumstances, that the child was born in that parish. R. v. North Petherton, 5 B. and C. 508." An entry, by a minister, of a bap- tism which took place before he became minister, and of which he received information from the parish clerk, is not admissible, nor is the private memorandum of the fact made by the clerk who was present at the baptism. Doe v. Bray, 8 B. and C. 813.' It seems that a bishop's register is evidence of the facts stated in it. Arnold V. Bp. of Bath and Wells, 5 Bingh. 316.'' Effect of Aicards. An award regularly made by an arbitrator to whom matters in difference are referred, is conclusive in an action at law on the parties to the reference, upon all matters inquired into within the submission. 1 Phill. Ev. 360 ; and see Campbell v. Twemlow, 1 Price, 81. Dunn v. Murray, 9 B. and C. 780.' Thus where in an action of ejectment it appeared that the lessor of the plaintiff and the defendant had before referred their right to the land to an arbitrator, who had awarded in favour of the lessor, it was held, that the award concluded the defendant from disputing the lessor's title. Doe v. Rosser, 3 East, 11 ; see Chamb. Landl. and Ten. 267. But where on a reference by landlord and tenant, the arbitrator awarded, that a stack of hay left upon the premises by the tenant, should be delivered up by him to the landlord, upon the tenant be- ing paid a certain sum, it was held, that the property in the hay did not pass to the landlord, on his tender of the money, by mere force of the award, against the consent of the tenant, who refused to accept the money, or deliver up the hay. Hunter v. Rice, 15 East, 100. Where the commissioners under an inclosure act w^ere directed to make an award respecting the boundaries of a parish, and to advertise a description of the boundaries so fixed, and the boundaries so fixed were to be inserted in their award, and to be binding, final and conclusive, but the boundaries mentioned in the award varied from those which had been advertised, it was held, that the commissioners not having pursued their authority, their award was not binding as to the boundaries. R. v. Washbrook, 4 B. and C. 732."" An award made on a reference of all matters in difference between the parties, will not be a bar with regard to any demand which was not in difference between them at the time of the submission, nor referred by them to the arbitrators. Ravee v. Farmer, 4 T. R. 146. S7nith v. Johnson, 15 East, 213. See Thorpe V. Cooper, 5 Bingh. 129." Where no arbitration bonds had been entered into, but the arbi- 1 14 Eng. Com. Law Reps. ir,3. « 19 Id. 260. »■ n Id. 290. ' 15 Id. 339. * 15 Id. 459. •I7 1d.490. -"10 Id. 451. "15ld.3B7. 116 Stamps. trators made an award, Eyre, C. J., admitted the award as evidence under the account stated; Keen v. Bats/iore, 1 Esp. 194 ; and in assumpsit on a poUcy of insurance. Lord Kenyon admitted evi- dence that the defendant had agreed to^be bound by an award to which other persons were parties, and that the award was in fa- vour of the plaintiff, Kingston v. Phelps, Peahe, 227. As to the effect of presumptive evidence, hearsay, and admis- sions, see those titles respectively. STAMPS. Efect of want of Stamp.] An instrument requiring a stamp can- not be produced in evidence without being stamped, and if parties agree by parol to be bound by the same terms as those contained in a written instrument, the latter cannot]_be given in evidence unless properly stamped. Turner v. Power, 7 B. and C. 625." See Drant v. Brown, 3 B. and C. 665." Where an unstamped instru- ment in writing has been lost, R. v. Casthmorton, 3 B. and A. 588,* or destroyed even by the party who objects to the want of the stamp, Rippenerv. Wright, 2 B. and A.AIS, parol evidence of the contents is inadmissible. But in some cases, in which an instru- ment has been lost, which is not proved to have been properly stamped, that fact may be presumed, as where an indenture of ap- prenticeship, executed thirty years before, was lost, it w^as pre- sumed to have been properly stamped," though an 'officer from the stamp-office proved that it did not appear that any such indenture had been stamped. R. v. Long Buckley, 7 East, 45.^ And where a party refuses to produce an agreement after notice, it will be pre- sumed as against him to be properly stamped. Crisp v. Anderson, 1 Starh. 35.^ Where the transaction is capable of being legally proved by other evidence than that of the instrument which ought to bear a stamp, such evidence may be resorted to. Thus, where a promissory note appears to be improperly stamped, the plamtifi may resort to the original consideration. Farr v. Price, 1 East, 58. Tute V. Jones, id. {n). So, though an unstamped receipt is no evi- dence of pavment, the fact of payment may be proved by a witness who was present. Rambert v. Cohen, 4 Esp. 213. So where^an action is brought upon an instrument which ought to be stamped, and the form of the pleading is such, that at the trial it was not ne- cessary to produce the instrument, a court of law will not examine whether the instrument is legally available with reference to the stamp laws. Per Lord Eldon, Huddlestone v. Briscoe, 11 Fes. 596. . 14 Eng. Com. Law Reps. 104. p 10 Id. 211. i 5 Id. 387. '2 Id. 283. Stamps. 117 Thynne v. Protheroe, 2 M. and S. 353. If a plaintiff succeeds in making out a case of implied or oral contract, and it does not ap- pear on the cross-examination of his witnesses that there was any contract in writing, the defendant will not be allowed to give an unstamped written contract in evidence for the purpose of nonsuit- ing the plaintiff Fielder v. Ray, 6 Bingh. 332 ;^ and see Reed v. Deere, 7 B. and C. 266/ R. v. Inhab. of Rawden, 8 B. and C. 708.'' A party who executes the counterpart of a deed properly stamped cannot object to its admissibility in evidence on the ground that the original is not properly stamped. Paul v. Meek, 2 Y. and J. 116, ante p. 2. Unstamped instrument, when evidence for collateral purposes^] In many cases an instrument not legally stamped is admissible to prove a collateral fact. Thus, in an action of debt for bribery at an election, an unstamped promissory note payable to the defend- ant, which the witness said he had given for the repayment of money received by him as a voter, from the defendant, is evidence to corroborate the testimony of the witness. Dover v. Maestaer, 5 Esp. 92. So to refresh a witness's memory, ante p. 98. So an unstamped promissory note may be given in evidence to establish fraud, by showing that it was written by the maker in a state of intoxication. Gregory v. Fraser, 3 Camph. 454. And the court may inspect an unstamped writing for the purpose of ascertaining whether its contents preclude the admission of parol evidence. R. V. Pendleton, 15 East, 440. Where a party declared upon two written agreements, by the second of which variations were made in the first, and there were also counts upon each separately, and it appeared when the instruments were produced in evidence by the plaintiff that the first only was stamped,' it was held that the second could not be read in evidence to support the plaintiff's case, but might be looked at by the court in order to ascertain whether the first was altered by it, and that therefore the plain- tiff could not exclude the second agreement, and proceed upon the counts setting out the first only. Reed v. Deere, 7 B. and C. 261.* But where in an action against an acceptor it appeared that on the bill becoming due his name had been erased and another bill (un- stamped) drawn on the back of the first, it w^as held that the unstamped bill could not be submitted to the jury for the purpose of drawing the conclusion that the first bill had been cancelled. Sweeting v. Halse, 9 B. and C. 365 ;^ and see Sutton v. Toomer, 7 B. and C. 416.^ Several stamps and several contracts with one stampJ] Where the subject matter of the instrument is joint, though several per- sons are interested in it, only one stamp is requisite. Thus, an as- • 19 Eng. Com. Law Reps. 94. • 14 Id, 41. • 15 Id. 329. » 17 Id. 394. "14 Id. 66. 118 Stamps. signment of the prize-money of several seamen on board a priva- teer, payable out of one fund, requires only one stamp. Baker v. Jardhie, 13 East, 235 {n). So an agreement by several for a sub- scription for one common fund. Davis v. Williams, 13 East, 232. So an agreement of reference by all the underwriters on one pol- icj. Good son v. Forbes, G Taunt. 171." So a bond by several ob- ligors, in a penalty conditioned for the performance of certain acts, by each and every of them. Bowen v. Ashley, 1 N. R. 274 ; 6 Taunt. 175;'' and see Stead v. Liddard, 1 Bingh. 19G.> Boase v. Jackson., 3 B. and B. 185.'- And where the membersof a mutual insurance club all executed the same power of attorney, severally authoriz- ing the persons therein named to sign the club policies for them, it was held to require only one stamp. Allen v. Morrison, 8 jB. and C. 565." Where a paper contains several contracts, and consequently re- quires several stamps, but only one is impressed upon it, that stamp applies to the contract on which it is impressed. Powell v. Ed- munds, 12 East, 6. And where an instrument contains a contract of demise general in its terms but several in its operation with re- spect to the different tenants who sign, it is matter of evidence to which contract the stamp applies, and the juxta-position of the stamp is to be regarded. Doe v. Day, 13 East, 241. Where the several admissions of five corporators as freemen were written on the same paper with only one stamp, such stamp was held to apply to the first admission only, and the others could not be read. R. v. Reeks, 2 Ld. Raym. 1445; and see Perry v. Bouchier, A Campb. 80. Waddington v. Francis, 5 Esp. 182. Proper denomination.'] By stat. 43 Geo. III. c. 127, s. 6, if the stamp is of a proper denomination it shall not be ineffectual from its being of a greater value than the stamp acts require, and by stat. 55 Geo. III. c. 184, s. 10, all instruments for, or upon which any stamp or stamps shall have been used, of an improper denom- ination, or rate of duty, but of equal or greater value, in the whole, with or than the stamp or stamps which ought regularly to have been used thereon, shall be deemed vahd and eflfectual in law, ex- cept in cases where the stamp or stamps, used in such instruments, shall have been specifically appropriated to any other instrument by having its name on the face thereof. If an instrument bear a proper stamp when produced at the trial it is sufficient, though it was not stamped when it was exe- cuted, provided the commissioners of stamps are not expressly pro- hibited from subsequently aflSxing a stamp. R. v. Bishop of Chester, 1 Str. 624; and see Rogers v. James, 7 Taunt. 147.'' But with re- gard to an instrument to which a stamp cannot be subsequently affixed, an inquiry as to the time when the stamp was put on is ad- « 1 Eng. Com. Law Reps. 348. r 8 Id. 294. » 7 Id. 403. » 15 Id. 298. f 2 Id. 52. Stamps. 119 missible. Green v. Davies, 4 B. and C. 241 ;» but see Wright v. Riley, Peake, 173. When an instrument has been stamped on payment of a penalty- it is admissible, though the receipt has been erased, provided it be proved that such receipt was once indorsed. It is not necessary to prove the commissioners' signature to the receipt. Apothecaries'' Company v. Fernihough, 2 C. and P. 439.* Administration, Letters of. Where an administrator is bound to prove his title at the trial, and produces letters of administration stamped for a less sum than that which he seeks to recover in the action, it is ground of non- suit. Hunt V. Stevens, 3 Taunt. 113. On payment of the full duty, such letters may be restamped with the proper stamp. 55 Geo. 111. c. 184, s. 41. But where an administrator is not bound to prove his title, as where he sues on promises to his intestate, and non as- sumpsit is pleaded, the defendant cannot insist on the plaintiff proving his title, by producing the letters of administration, and if produced, cannot object that they are not properly stamped. Thynne v. Protheroe, 1 M. and S. 553. Agreements. By 55 Geo. III. c. 184, Sched. an agreement, or any minute, or memorandum of an agreement, made in England, under hand only, or made in Scotland, without any clause of registration, and not otherwise charged in that schedule to that act, nor expressly ex- empted from all stamp duty, where the matter thereof shall be of the value of 20/. or upwards, whether the same shall be only evi- dence of a contract, or obligatory upon the parties, from its being a written instrument, together with every .schedule, receipt, or other matter put or indorsed thereon, or annexed thereto, shall bear a 1/. stamp. See similar provisions in 44 Geo. III. c. 98, 48 Geo. III. c. 149, upon ichich many of the cases cited below arose. The following are the exemptions in the schedule : — First Fjxemption. Label, slip, or memorandum, containing the heads of insurances to be made by the .corporations of the Royal Exchange Assurance, or London Assurance, or by the corporations of the Royal Exchange Assurance of houses and goods from fire, and London Assurance of houses and goods from fire. Second Exemption. Memorandum or agreement for granting a lease or tack, at rack rent, of any messuage, land, or tenement, under the yearly rent of 5/. An agreement for a building lease, though under itl. per annum, is not within this exemption, the inter- est being a beneficial one. Doe v. Boulcot, 2 Esp. 595. Third Exemption. Memorandum or agreement for the hire of « 10 Eng. Com. Law Reps. 319. "» 12 Id. 209. 120 Stamps. any labourer, artificer, manufacturer, or menial servant. The assisjnnient of an apprentice is not within this exemption. R. v. SL PauPs, Bedford, 6 T. R. 452. Fourth Exemption. Memorandum, letter, or agreement made for or relating to the sale of any goods, wares, or merchandizes. Cases within the Fourth Exc/nption. An undertaking to guaran- tee the payment of goods, to be furnished lo third persons. fVar- rington v. Furhor, 8 East, 242. An agreement by A. to take half of certain goods bought by B. on their joint account, and to furnish B. with half the amount in time for payment. Venning v. Leckie, 13 East, 7. An agreement to cancel a former agreement relative to the sale of goods, and for the future sale of goods, upon different terms, Whitworth v. Crockett, 2 Stark. 431.'= An agreement for the sale of rape oil, not yet expressed from the seed. JVilks v. At- kinson, 6 Taunt. 11 ;^ hut see Buxton v. Bedall, 3 East, 303. An agreement for the sale of chimney-pieces, the vendor " to finish them in a tradesman-like manner." Hughes v. Breeds, 2 Car. and P. 159.S A receipt for the price of a horse containing a warranty of soundness. Skrine v. Elmore, 2 Camph. 407. An agreement for a crop growing in a close, to be removed immediately, and con- ferring no interest in the land. Parker v. Staniland, 11 East, 362. Warwick v. Bruce, 2 M. and S. 205. Evans v. Roberts, 5 B. and C. 829.'' An agreement for the purchase of timber, though the trees are growing. Smith v. Surman, 9 B. and C. 561.' An agreement to supply a house with water. West Middlesex W. W. v. Tenver- kropp, 1 M. and M. 408. Some of the above cases were decided on the 4th sec. of the statute of frauds, but they apply as authori- ties on the stamp act also. Cases not icithin the Fourth Exemption. An agreement in fieri for the making of goods, and for w-ork and labour to be done, as for putting up certain machines. Buxton v. Bedall, 3 East, 303 ; hut see Wilkes v. Atkinson, 6 Taunt, ll.s Hughes v. Breeds, 2 Carr.^and P. 159, supra ; see also Waddingion v. Bristow, 2 B. and P. 455. An agreement by a principal to provide for certain bills drawn upon his factor, if certain goods, then either in the factor's posses- sion or about to be placed there, should remain unsold at the time of the bills falling due ; for the exemption is confined to instruments whereof the sale of goods is the primary object. Srnith v. Cator, 2 B. and A. 778. An agreement for the sale of growing crops, con- ferring an interest in the land. Crosby v. Wadsworth, 6 East, 602 {case on the 4th sec. ofthestat. of frauds). Waddington v. Bristoiv, 2 B. and P. 453. Emmerson v. Heelis, 2 Taunt. 38 (case on the 4th sec. of the stat. of fraiids). So a sale of growing underwood to be cut by the purchaser, has been held to confer an interest in land under the 4th section of the statute of frauds. Scorell v. Boxall, 1 Y. and J. 366. A contract, under seal, for the sale of goods. Per Baijley, J., Clayton v. Burtenshaw, 5 B. and C. 45." ' 3 Eng. Com. Law Reps. 417. f 1 Id. 292. « 12 Id. 71. »'12ld.377. * 17 Id. 443. Ml Id. 13C. Stamps. 121 Fifth Exemption. Memorandum or agreement made between the master and mariners of any ship or vessel, for wages on any Voyage coastwise, from port to port, in Great Britain. Sixth Exemption. Letters containing any agreement (not be- fore exempted), in respect of any merchandise, or evidence of such an agreement, which shall pass by the post between merchants and other persons carrying on trade or commerce in Great Britain, and residing, and actually being, at the time of sending such letters, at the distance of fifty miles from each other. A letter by a son who managed his mother's business, to a credi- tor of his mother, residing above fifty miles from him, containing a promise to pay the debt of the mother, is within this exemption. MKenzie v. Banks, b T.R. 176. The statute only requires an agreement to be stamped when the matter thereof shall be of the value of 20/. or upwards. It there- fore only applies when the value of the contract is measurable ; thus a contract of marriage may be proved by unstamped letters. Orford v. Cole, 2 Stai'k. 351.' And a memorandum by a whartinger, of the receipt of goods, to be shipped in a particular manner, may be given in evidence to show the terms upon which they were re- ceived, without a stamp, the value of the goods being above 20/., but the wharfage being of less amount. Chadivick v. Sills, R. and M.15. A written paper, delivered by the auctioneer to the bidder, to whom lands were let by auction, containing the description of the lands, the term for which they were let to the bidder, and the rent payable, but not signed by the auctioneer, or any of the par- ties, was held not to require a stamp, nor to exclude parol evi- dence, since it was collateral to the taking, and was no more than if the auctioneer had told the defendant on what terms he was to hold. Ramshottom v. Tunhridge, 2 M. and S. 434. So a proposal from A. to B. to let to B. a piece of land, on the terms contained in a written agreement between B. and C., A. afterwards agreeing that B. should . have the land on the terms proposed, does not re- quire a stamp. Drant v. Brown, 5 D. and R. 582.'" 3 B. and C. GG5, S. C. Hawkins v. Warre, 3 B. and C. 690.° So a mere or- der for goods does not require a stamp ; Ingram v. Lea, 2 Campb. 521 ; but a written paper signed by an auctioneer, and delivered to the bidder, to whom lands were let by auction, containing the terms of the letting, and the rent payable, must be stamped. Rams- bottom V. Mortley, 2 M. and S. 445. In an action against an attorney, the plaintiff gave in evidence the following unstamped letter : " I have this day received a bill of exchange for 50/. (describing it), which I hold as your attorney, to recover the value on from the respective parties, or to make such other arrangement for your benefit as may appear to me in my •3Eng.Com. Law Reps. 378. »'10Id.211. ° 10 fd. 215. 16 122 Sta7nps. professional capacity reasonable and proper." It was held that this letter was not evidence of a contract, but a mere acknowledg- ment of the duty which the party took upon himself to perform, and that it therefore required no stamp. Langdon v. Wilson, 7 B. and C. G40 (w). Mullet v. Hulchinsoii, 7 B. and C. 639.' 1 M. and R. 522, S. a Appraisements. By 55 Geo. III. c. 184, sch. part 1, appraisement or valuation of any estate or effects, real or personal, heritable or moveable, or of any interest therein, or of the annual value thereof, or of any di- lapidations, or of any repairs wanted, or of the materials or labour used or to be used in any buildings, or of any artificer's work what- soever, must be stamped, where the amount of appraisement does not exceed 50/. 2^. 6rZ., where it exceeds 50/. and does not exceed 100/. 5s., 100/. and not 200/. 105., 200/. and not 500/. 15s., above 500/. 1/. Where nothing is referred but the mere value of goods, and the repairs of a farm, an appraisement stamp is proper, and not an award stamp. Leeds v. Burrows, 12 East, 1. See Jehh. v. M'Kiernan, 1 M. and M. 340, post. It seems that the words " ap- praisement or valuation" do not extend to such as are made mere- ly for the private information of parties, but to such only as are intended to be binding between them. Atkinson v. Fell, 5 M. and S. 243. Awards. By 55 Geo. III. c. 184, sch. part 1, an award must be stamped with a 1/. 155. stamp. The appointment of an umpire made in writing, by two arbitrators, requires no stamp. Routledge v. Thorn- ton, 4 Taunt. 704. An agreement stamp is not necessary to an arbitration bond, which, besides the usual covenants, contains an agreement as to the payment of costs. Re Wansborough, 2 Chitty, 40.P A paper ascertaining the amount of a person's account re- quires an award stamp. Jehb v. M'Kiernan, 1 M. and M. 340. Banker's Drafts. By 55 Geo. III. c. 184, sched. part 1, all drafts or orders for the payment of any sum of money to the bearer on demand, and drawn upon any banker or bankers, or any person or persons acting as a banker, who shall reside or transact the business of a banker, within ten miles of the place where such drafts or orders shall be issued, provided such plaCe shall be specified in such drafts or or- ders, and provided the same shall bear date on or before the day on which the same shall be issued, and provided the same do not direct the payment to be made by bills or promissory notes, are ex- empted from stamp duty. A draft, drawn upon " A. B., bricklayer," • 14 Eng. Com. Law Reps. 108. p 18 Id. 242. Stamps. 123 is iwt within the exemption. Castleman v. Ray, 2 B. and P. 383. A post-dated draft, though not intended to be used till the day, must be stamped. Allen v. Keeves, 1 East, 435. Payments made by a banker, under a post-dated draft, drawn by a customer who has no funds in his hands, may be recovered from the holder of the draft, to whom they have been made, and who was acquainted with the fact that the draft was post-dated, of which the banker was ignorant. Martin v. Morgan, Gow, 128,i 3 B. Moore, G35, S. C. ; and see Waters v. Brogdon, 1 Y. and J. 459. Bills of Exchange. By 55 Geo. III. c. 184, the following stamps are imposed on bills of exchange : — Inland Bill of exchange, draft, or order, to the bearer, or to order, either on demand or otherwise, of any sum of money. Not exceed- If exceeding ing 2 months two months after date, or afterdate, or 60 days after 60 days after sight. sight. £.s.d. £. s. d. £. s. d. £. 5. d. Amounting to 2 and not exceeding 5 5 ..010 ..016 Exceeding 5 5 . 20 ..016 ..020 , , . 20 . 30 ..020 ..026 . . 30 . 50 ..026 ..036 , . SO . 100 . . 3 6 ..046 ^ , . JOO . 200 ..046 ..050 , ^ . 200 . 300 ..050 ..060 . 300 . 500 ..060 ..086 500 . 1000 ..086 . . 12 6 , 1000 . 2000 . . 12 6 . . 15 ^ , 2000 . 3000 . . 15 ..150 3000 .15 . . 1 10 Inland bills, drafts, or orders for the payment of any sum of mo- ney, though not made payable to the bearer or to order, if the same shall be delivered to the payee, or some person on his be- half, have the same duty as on a bill of exchange, for the like sum payable to bearer or order. Inland bills, drafts, or orders, for the payment of any sum of mo- ney weekly, monthly, or at any other stated periods, if made payable to the bearer or to order, or if delivered to the payee or some per- son on his behalf, where the total amount of the money thereby made payable shall be specified therein, or can be ascertained therefrom, bear the same duty as on a bill payable to bearer or order, on demand, for a sum equal to such total amount. And where the total amount of the money thereby made payable shall be indefinite, the same duty as on a bill, on demand, for the sum therein expressed only. Where the total amount of the money thereby made payable shall be indefinite, the same duty as on a bill, on demand, for the sum therein expressed only. 1 5 Eng. Com. Law Reps. 484. 1 24 Stn7Jips. And the following instruments shall he deemed and taken to he inland bills, drafts, or orders, for the payment of money within the intent and meaninijj of this schedule ; viz. All drafts or orders for the payment of any sum of money by a bill or promissory note, or for the delivery of any such bill or note in payment or satisfaction of any sum of money, where such drafts or orders shall require the payment or delivery to be made to the bearer, or to order, or shall be delivered to the payee, or some per- son on his or her behalf. AH receipts given by any banker or bankers, or other person or persons, for money received, which shall entitle the person or per- sons paying the money, or the bearer of such receipts, to receive the like sum from any third person or persons. And all bills, drafts, or orders, for the payment of any sum of money out of any particular fund which may or may not be avail- able, or upon any condition or contingency which may or may not be performed or happen, if the same shall be made payable to the bearer or to order, or if the same shall be delivered to the payee, or some person on his or her behalf. It was the object of the legislature, in framing this last provision, to treat as promissory notes and bills of exchange, and to subject to stamp duty, such instruments as, being payable on a contingency, or out of a particular fund, could not, in strictness, fall under that denomination. Per Loi'd Ellenhorough, Firhankv. Bell, 1 B. and A. 3G ; and see Jones v. Siynpson, 2 B. and C. 321.'" In order to prove the payment of money pursuant to order, the following letter was given in evidence : " Messrs. B. and H., when the mahogany, per Regent, is sold, you will please pay over to Messrs. P. H. and W. 1500/., in such bills as you receive from the said sale. S. Mann." Messrs. P. II. and W. inclosed this letter in another, addressed by them to 13. and H. ; and B. and H., in reply, wrote promising to pay over the money. The letter from P. H. and W. was stamped with an agreement stamp ; but it was objected that the letter from Mann was an order for payment of money out of a fund which may or may not be available, and that it ought to have been stamped ac- cordingly, and of this opinion was the court. Firhank v. Bell, 1 B. and A. 3G. F. and Co. wrote to S. and Co. the following letter : " We request you will pay to Messrs. H. and Son, or their order, out of the first proceeds that become due of our stock of gunpowder now in your charge, 600/., and charge the same to our account." S. and Co., in answ^er, stated that they had no objection to pay as directed, provided they were in funds for that purpose, and sub- ject to the payment of their advances ; and other letters passed on the subject. The two first letters were stamped with an agreement stamp, on payment of a penalty. It was held that this case fell within the authority of Firhank v. Bell; and that the first ' 9 Eng. Com. Law Rops. 09. Stamps. 125 letter was not admissible, not having been stamped at the time when it was written. Butts w. Swan, 2 B. and B. 78." 4 B. Moore, 484, S. C. But in order to come within this clause, the instrument should be for the payment of a specified sum ; and therefore, where A., having consigned goods to B., sent him the following order, — ** Pay to A. B. the proceeds of a shipment of twelve bales of goods, value about 2000/., consigned by me to you ;" and B., by writing, consented to pay over the full amount of the net proceeds of the goods, it was held that neither of these instruments came within the above clause. Jones v. Simpson, 2 B. and C. 318 ;* and see Rose. Dig. Bills of Exchange, p. 31. Foreign bills.] A Foreign Bill of exchange (a bill of exchange drawn in, but payable out of Great Britain), if drawn singly, and not in a set, the same duty as on an inland bill, of the same amount and tenor. Foreign bills of exchange, draivn in sets, according to the custom of merchants, for every bill of each set. £ £ s.d. Where the sum made payable ) ,^q ... 10 thereby shall not exceed .) And where it shall exceed . 100 and not exceed 200 . . 3 200 ... . 500 . . 4 500 1000 2000 And where it shall exceed 1000 ..50 2000 ..76 3000 . . 10 3000 . . 15 A biU drawn in Ireland, with blanks for the sum, the date, and the drawee's name, and transmitted to England, in order to have the blanks filled up, does not require an English stamp. Snaith v. Mingay, 1 M. and S. 87. Crutchley v. Mann, 5 Taunt. 529." So a bill sketched out and accepted here, and transmitted to a person abroad for his signature as drawer, is a foreign bill, does and not require an English stamp. Boehm v. Campbell, Gow, 66.^ A bill payable to the drawer's order, and taken up by him, may be re-i&sucd without a fresh stamp ; Calloio v. Laurence, 3 M. and S. 97, Hubbard v. Jackson, 4 Bingh. 390 r but a bill payable to the order of a third person, and paid by the drawer cannot be re- issued by him, for it would wrongfully charge the payee. Beck v, Robley, 1 H. Bl 89 {ii). What alteration of a hill requires a new stamp.] If a bill or note is altered in a material part, though by the consent of all parties, « 8 Eng. Cora. Law Uops. 28. ' 9 Id. 99. - 1 Id. 179. " 5 Id. 459. " 15 Id. 12. 126 Stamps. and though the alteration be made by' a stranger, Master v. Miller, 2 H. BL 141, after it Iihs once issued, it requires a new stamp ; Bayl. on hills, 89, 4th ed. ; and such alteration not only makes a new stamp necessary, but vacates the bill (independently of the stamp laws), except as between the parties consenting to such alteration. Ibid. ; .see Downes v. Richardson, 5 B. and A. 680.'' An alteration in the date of a bill, payable after date, Walton v. Hastings, 4: Campb. 2S3, Outhiuaitev. Lwitley, 4 Campb. 179, or in- serting words, rendering a bill or note negotiable, which was not so originally, Kershaio v. Cox, 3 Esp. 246, Knill v. Williams, 10 East, 437, or the consideration of the value received, Knill v. WHliamsilO East, 431, is a material alteration. So where the drawer, without the consent of the acceptor, added the words " payable at Mr. B.'s, Chiswell Street," to the acceptance, this alteration was held to be material, Cowie v. Halsall, 4 B. and A. 197,^ decided after Rome v. Young, 2 B. and B. 165;" and a similar alteration has been held to be material, since stat. 1 and 2 Geo. IV. c. 78, for the right of an indorsee to sue his indorser, would, according to the altered bill, be complete, upon default made at the banker's, and notice thereof; whereas, the acceptor not having in reality undertaken to pay there, would have commited no default by such non-payment. Macintosh v. Haydon, R. and M. 362. See 1 Campb. 82 {n). If the alteration was merely the correction of a mistake, and in fur- therance of the original intent of the parties, as inserting the words " or order" in a bill intended to be negotiable, it will not require a new stamp. Cox. v Kershaw, 3 Esp. 246, so a mistake in the date may be corrected. Brutt v. Picard, R. and M. 37. See Bayley on hills, 92, 4.th ed. What is such an issuing of a hill as to render an alteration fatal.'] A bill is prima facie considered as issued as soon as it is passed away by the drawer, or accepted by the drawee, and not before. Bayley on hills, 93, 4th ed. An exchange of acceptances is an issuing ; Cardwell v. Martin, 9 East, 190 ; but a bill is not issued so as to make an alteration fatal, until it is in the hands of a person enti- tled to make a claim thereon. Downes v. Richardson, 5 B. and A. 674.'' A bill altered before negotiation, without the consent of the acceptor, may be enforced against him, if he assent to the altera- tion. Ibid. Kennerly v. Nash, 1 Stark. 452 ;* and see Jacobs v. Hart, 2 Stark. 45,^ Stevens v. Lloyd, 1 M. and M. 292. The onus of proving the alteration made before negotiation lies upon the plaintiff. Johnson v. Duke of Marlborough, 2 Stark: 313.' An objection to a bill or note, for want of a proper stamp, must be taken before it is read. 2 Stark. Ev. 293. » 7 Eng. Com. Law Reps. 277. r 6 Id. 399- » 6 Id. 53. » 2 Id. 456. «> 3 Id. 237. ■: 3 Id. 360. Stamps. 127 Bills of Sale of Ships. By 6 Geo. IV. c. 41, s. 1, bills of sale, assignments, and mort- gages of ships, are exempted from stamp duty. Bills of Lading. Bills of lading for goods, merchandise, or effects to be exported, 48 Geo. III. c. 149, sch. part 1, or to be carried coastwise, 55 Geo. Ill, c. 184, sch. part 1, require a 35. stamp. Bonds. A bond conditioned for the'payment by quarterly payments of an annual rent is within 48 Geo. III. c. 149, sched. (similar provision 55 Geo. III. c. 184), which imposes a duty on bonds given as a se- curity for the payment of any definite and certain sum of money, and must be stamped accordingly. Attree v. Anscomb, 2 M. and S. 88. The clause in 48 Geo. III. c. 149 (similar provision 55 Geo. III. c. 184), imposing a stamp upon bonds given as a security for the repayment of any sum or sums of money to be thereafter lent, advanced, or paid, or which may become due upon an account cur- rent, is to be construed as applying to the condition of the bond without regard to the amount of the penalty, which is not to be considered as limiting the extent of the security where such bond is given to secure the payment of a final balance or account stated. Scott V. Allsopp, 2 Price, 20. See Williams v. Rawlinson, 3 Bingh. 71.* As to a bond to secure damages and costs. See Lopez v. De Tastet, 8 Taunt. 712."= Cognomt. A cognovit requires no stamp, for it is a mere acknowledgment of an account, unless matter of agreement be contained in it. Ames V. Hill, 2 B. and P. 150. Reardon v. Swabey, 4 East, 188] Deeds. A deed indorsed on another deed, as a farther security for ad- vances to be made under the latter deed, was held exempted, by 48 Geo. III. c. 149, from the ad val(yrem duty, the latter deed being stamped with an ad valorem stamp. Robinson v. Macdonnell, 5 M. and S. 228. A conveyance by debtors to trustees in trust to sell, and with the proceeds to discharge, first, debts due to the trustees, and then debts due to other creditors, with a resulting trust for the original debtors, does not require an ad valoi^em stamp, as upon a sale or mortgage under 55 Geo. III. c. 184. Coates v. Perry, 3 B. and B, 48.f , Ml Eng. Com. Law Reps. 34. « 4 Id. 258. M Id. 345. J 28 Stamps. Foreign Instruments. If a stamp is necessary to render an Instrument valid in a foreign country, it cannot be received in evidence without that stamp here. Per Lord EUenborough, Clegg v. Levy, 3 Camph. 167. Alves v. Hodgson, 7 T. R.241. A deed made in England to be carried into effect abroad must be stamped ; Stonelake v. Bahh, 5 Biii-r. 2673 ; but a contract made at sea requires no stamp. Ximenes v. Jacques, 1 Esp. 311. As to the stamp of a bill of exchange drawn in Ire- land, but filled up here, vide ante, p. 125. Where in an action on a bill dated Paris, the defence was that it was drawn in London, and so void for want of a stamp, and it was proved that the drawer was in London on the 3d March (the bill being dated the 1st), Lord EUenborough said, " It is not probable that this bill was drawn in Paris 1st March, but if it was proved ever so distinctly that it was not drawn in Paris 1st March, it would not follow that it was not drawn there at some other time, or that it was drawn in England. Drawing here with a foreign date, to evade the stamp duties, is a very serious offence, and the fact must be made out by distinct evidence." Abraham v. Dubois, Bayley, 67, 4 Campb. 269. Eire v. Marcau, 2 C. and P. 376.s Policies of Insurance, By 35 Geo. III. c. 63, s. 13, " nothing in that act shall be con- strued to extend to prohibit the making of any alteration which may lawfully be made in the terms or conditions of any policy of insurance duly stamped, after the same shall have been under- written ; or to require any additional stamp duty by reason of such alteration, so that such alteration be made before notice of the de- termination of the risk originally insured, and the premium or consi- deration originally paid or contracted for, exceed the rate of 10^. per cent, on the sum insured ; and so that the thing insured shall remain the property of the same person or persons; and so that such alterations shall not prolong the term insured beyond the period allowed by this act, and so that no additional or further sum shall be insured by reason or means of such alteration." A mere extension of the time of sailing is within the above clause, and the new alteration requires no new stamp. Kensington v. Inglis, 8 East, 273. See Brocklebank v. Sugrue, 1 Barn, and Adol 81. So a memorandum waiving the warranty of sea- worthiness. Weir v. Aberdeen, 2 B. and A. 325. But where a policy on " a ship and outfit" was altered, by inserting " ship and goods," it was held to require a new stamp ; Hill v. Patten, 8 East, 373 ; and to be void against the underwriters, though they had assented to the alteration. Jbid. i 12 Eng. Com. Law Rops. l&O- Stamps. 129 Promissory Kates. By 55 Geo. III. c. 184, sched. part 1, a promissory note, for the payment, to the bearer on demand, of any sum of money, is subject to the following duties: £ s. £ s. £ s. d. Not exceeding 1 1 . .0 5 Exceeding . 1 1 and not exceeding 2 2 10 2 2 . .5 5 1 3 5 5 . , .10 1 9 10 . .20 2 20 . .30 3 30 . .50 5 50 . .100 8 6 which said notes may be re-issued after payment thereof, as often as shall be thought lit. Promissory note for the payment, in any other manner than to the bearer on demand, but not exceeding two months after date, or sixty days after sight, of any sum of money ; Amounting to Exceeding . £ 5. £ 5. 2 and not exceeding 5 5. 20 . 30 . 50 . £ s. d. 5 5 1 20 1 6 30 2 50 2 6 100 3 6 These notes are not to be re-issued after being once paid. Promissory note for the payment either to the bearer on demand, or in any other manner than to the bearer on demand, but not exceeding two months after date, or sixty days after sight, of any sum of money : Exceeding £ £ £ 5. d. 100 and not exceedin g 200 4 6 200 300 5 300 600 6 500 1000 8 6 1000 2000 12 6 2000 3000 15 3000 , . 1 5 These notes are not to be re-issued after being once paid. Promissory note for the payment to the bearer or otherwise, at any time exceeding two months after date, or sixty days after sight, of any sum of money : £ s. Amounting to 2 and not exceeding Exceeding .55 17 £ s. £ s. d. 5 5 16 20 2 130 Stamps. £ s. Amounting to 20 and not exceeding 30 30 50 100 200 300 500 1000 2000 3000 These notes are not to be re-issued after being once paid. A promissory note for 40/. payable to A. B., or bearer, is in law payable on demand, and requires a 5s. stamp. Whitlock v. Under- wood, 2 B. and C. 167." Receipts. A receipt or discharge given for or upon the payment of money requires the following stamps by 55 Geo. III. c. 184, sched. part 1 : £ s. £ s. d 30 2 6 50 3 6 100 4 6 200 5 300 6 500 8 6 1000 12 6 2000 15 3000 1 5 , 1 10 £ £ £ s. d. Amounting to 2 and not amounting to 5 2 5 10 3 10 20 6 20 50 1 50 100 1 6 100 200 2 6 200 300 4 300 500 5 500 1000 7 6 1000 or upwards . 10 When in full of all demands . 10 An acknowledgment of having received acceptances, with an un- dertaking to provide for them, has been held to require a receipt stamp. Scholey v. Walshy, Peaks, 24. So a bill of parcels sub- scribed " settled by two bills, one at nine, the other at twelve months," was held by Lord Ellenborough to be an acquittance which could not be evidence unless stamped. Smith v. Kelly, Peake,- 25 (n), 4 Esp. 249, S. C. So the word " settled" under a bill. Spaw- forth V. Alexander, 2 Esp. 621. An account containing acknow- ledgments of sums received, made at successive times upon the payment of the money, requires a stamp; it differs from an ac- count current where the sums stated to be received are not written in the account, at and upon the receipt of the money, but long after, and only amount to admissions of money received at an antecedent time. Wright v. Shawcross, 2 B. and A. 501 (n). See Jacob v. b 9 Eng. Com. Law Reps. 51. Course of Evidence. 131 Lindsay, 1 East, 460. Hawkins v. Warre, 3 B. and C. 696.' A mere acknowledgment, not of the payment of money, but of a sum due and owing, (as an I. O. U.) requires no stamp, Fisher v. Leslie, I Esp. 426. Israel v. Israel, 1 Campb. 499. Childers v. Bulnois, Dow. end Ry. JV. P. C. 8 ;" but see Guy v. Harris, Chitty on Bills, 428, Uh ed. contra. See also Green v. Dames, 4 B. and C. 235.i So an instrument in these terms, " Mr. T. has left in my hands, 200/. ;" Tomkins v. Ashby, 6 B. and C. 541 ;"' or in these, " I have in my hands 3 bills which amount to 120/. 10s. 6d. which I have to get discounted, or return on demand." Mullett v. Huchison, 7 B. and C. 639." 1 M. and R. 522, S. C. So the acknowledgment of the correctness of an account containing a statement of sums advanced, and disbursements made, has been held to require no stamp. Wei- lard V. Moss, 1 Bing/i. 134." A receipt is not inadmissible as such, because it notices the terms and consideration upon which the money was paid. Watkins v. Hewlitt, 1 B. and 1.^ So although it contain subsequent matter of agreement, and has no agreement stamp ; Grey v. Smith, 1 Campb. 387 ; unless the agreement control or qualify what goes before, when the paper will be inadmissible without an agreement stamp. Ibid. See Corder v. Drakeford, 3 Taunt. 382. Clayton v. Burtenshaw, 5 B. and C. 85. i Where the indorsements of receipts on a bond have left no blank space for re- ceipts of subsequent payments to be written on the bond, such written on an unstamped piece of paper annexed to the bond, are within the exemption of 55 Geo. III. c. 184, sched. p. 1, and ad- missible. Orme v. Young, 4 Campb. 336. An unstamped receipt may be used by a witness to refresh his memory. Rambert v. Co- hen, 4 Esp. 213. Maugham v. Hubbard, 8 B. and C. M.' COURSE OF EVIDENCE. Before the jury are sworn, the counsel for the plaintiff has a right, on the cause being called on, to have a witness called on his subpoena. Hopper v. Smith, 1 M. and M. 115. When the jury are sworn, the junior counsel for the plaintiff opens the pleadings, after which, if the proof of the issue rest on the plaintiff, as where the general issue is pleaded, the senior, or leading counsel, states the case to the jury, and after calling and examining witnesses in support of it, the counsel for the de- fendant are heard, and if they call any witnesses, the plaintiff's counsel have the general reply. lidd, 908. The production by the defendant of a rule to pay money into court, is not, according to the practice of the Common Pleas, such evidence as to give the plaintiff's counsel the right to reply. 2 Taunt. 267. Where there are several issues, some of which are incumbent on the plaintiff, i 10 Eng. Com. Law Hops. 215. k 16 Id. 411. ' 10 Id. 319. •» 13 Fd. 269. •14Id. lOa. "8 Id. 271. P5ld. 1. 'i 1 1 Id. Ua. ■ 15 Id. 147. 132 Course of Evidence. and others on the defendant, it is usual for the plaintiff to begin, and to prove those which are essential to his case ; Jackson v. Hes- keth, 2 Stark. 521 ;" and the defendant then does the same, and af- terwards (he plaintiff is entitled to go into evidence to controvert the defendant's aHirmativc proofs. 'J"he defendant's counsel is en- titled to reply upon such evidence, in support of his own affirma- tive, and the plaintid's counsel to a general reply. 1 Stark. Ev. 342. Where a party tenders evidence p-w-vi/flc/e admissible, the other party will not be allowed to interpose with evidence for the purpose of excluding it ; but it should be received, and expunged if afterwards shown not to be properly receivable. Jones v. Fort, 1 M. aiiclM. 196. It was laid down as a general rule by Lord Ellenborough, that when by pleading, or by means of notice, the defence is known, the counsel for the plaintifl' is bound to open the whole case in chief, and cannot proceed in parts, unless some specific fact be adduced by the defendant, to which the plaintifF can give an answer, hut that he cannot go into general evidence in reply. Rees v. Smith, 2 Stark. 31.' But the practice is now altered, and the plaintiff's counsel is at liberty, either at once to enter into the whole of his case, or to make out a prima facie case only, and to reserve his answer to the defendant's case for the reply, but he cannot answer part of the defendant's case in his opening and part in the reply. Broicne v. Murray, R. and M. 254. Sylvester v. Hall, Id. 255 (n). 1 Stark. Ev. 383.' Where the general issue is not pleaded, but issue is joined on a collateral fact, as the execution of a release in assumpsit, or debt, or a right of way in trespass, the proof of which rests on the defendant, his counsel begin, after the pleadings are opened, and have the general reply. 7'idd, 908. The onus of proving damages does not give the plaintiff's counsel a right to begin. Bedell v. Rus- sell, R. and M. 293; but see Lacon v. Higgins, 3 Stark. 178," post. Robij V. Howard, 2 Stark. 556.^ And in trespass, where the gen- eral issue is pleaded as to the conning with force and arms, and whatever else is against the peace, and a special plea as to the rest, the issue upon which lies on the defendant, the counsel for the defendant is entitled to begin. Jackson v. Hesketh, 2 Stark. 518.' The rule as established in practice is, that when the general issue is not pleaded, and the affirmative of the issue lies on the defendant, he is to begin. Per Lord Tenterden, Cotton v. James, 1 M. and M. 275. So in an action for a libel, where a justification witliout the general issue is pleaded, the defendant is entitled to begin. Cooper v. Wakley, 1 M and M. 248. In eject- ment by a person claiming under a will against a person claiming under a codicil, if the defendant will admit the will, he is entitled to begin'and to have the general reply. Doe v. Corbett, 3 Campb. 368 ; see also Peake Ev. 6 (n). So where in an ejectment by • 3 Eng. Qom. Law Reps. 456. « 3 Id. 220 " 14 Id. 176. » 3 Id. 472. Course of Evidence. 133 an heir at law against a devisee, the lessor of the plaintiff proved his pedigree and" stopped, and the defendant set up a new case, which the lessor of the plaintiff answered by evidence, it was held that the defendant was entitled to the general reply. Goodiitle v. Brahani, 4 T. R. 497. Where in replevin the defendant avows for rent, and the plaintiff pleads in bar an agreement to set off an- other sum against the rent, and issue is taken on that pica, the plaintiff is entitled to begin, the afnrmative being on him. Curtis v. Wheeler, 4 C.and P. 196.'' Williams v. Thomas, Id. 234.^ Where the defendant brings evidence to impeach the plaintiff's case, and also sets up an entire new case, which again the plaintiff contro- verts by evidence, the defendant's reply in such case is confined to the new case set up by him, for upon that relied upon by the plain- tiff, his counsel has already commented in the opening of the defen- dant's case, and the plaintiff is entitled to the general reply. 1 Stark. Ev. 384. Meagoe v. Siinmons, 3 C. and P. 16.^ Where the defendant proves a payment to the plaintiff, by show- ing the particulars of demand delivered under a judge's order, in which the plaintiff has credited the defendant, this is. the evidence of the defendant, and entitles the plaintiff to a reply. Rymer v. Cook, 1 jM. and M. 86 (n). Where the counsel for the defendant opens facts to' the jury, which he calls no witnesses to prove, it is in the discretion of the judge to permit the plaintiff's counsel to reply. Crerar v. Sodo', 1 M. and M. 85. Upon an issue on a plea in abatement, which lies upon the de- fendant, the practice has not been uniform. It has been ruled by Abbott, C. J., that as the plaintiff has to prove the amount of the damages {but see ante, p. 132), his counsel is, if he elect to do so, entitled to begin, but the defendant's counsel, admitting the amount, was allowed to begin ; Lacon v. Higgins, 3 Stark. 178 ;^ see also Rohy V. Hoicard, 2 Stark. SSo,"* Stansjield v. Levy, 3 Stark. 8 ;'' but in another case Bayley, J., directed that the defendant should begin, and that the question of damages should, if necessary, be determin- ed afterwards. Anon. 2 Stark. Ev. 2. So in an action upon a bill of exchange, where the non-joinder of a joint contractor was pleaded in abatement. Lord Tenterden permitted the defendant to begin, and said that the most conveni- ent rule was, that wherever it appears on the record, or by the statement of the counsel engaged, that there is really no dispute about the sum to be recovered ; but the damages are either nomi- nal, or else mere matter of computation, then if the affirmative is on the defendant, he is entitled to begin. Fowler v. Coster, 1 M. and M. 241. Where several defendants in the same interest defend separately, • 19 Eng. Com. Law Reps. 340. » 19 Id. 361. r 14 Id. 212. • 14 Id. 175. » 3 Id. 472. " 14 Id. 146. 134 Demurrer to Evidence. it was ruled by Gibbs, C. J., that the senior counsel cain alone ad- dress the jury, and the witnesses are to be examined by the coun- sel successively, in the same manner as if the defence were joint and not separate. Chip'pendale v. Masson, 4 Campb. 174. And in ejectment where the defendants defended in the same right, but by different attornies and counsel, Lord Tenterden ruled that only one counsel could address the jury. Doe v. Tinclal, 1 M. and M. 314. 3 C. and P. 565," S. C. ; and seb Perring v. Tucker, Id. 392. But in some cases counsel for each party have been allowed to cross- examine, and to address the jury. King v. Williamson, 3 Stark. 162 ;'^ a7id see Massey v. Goyder, 4 C. and P. 162.* The leading counsel has a right, in his discretion, to interpose, and to take the examination of a witness out of the hands of his junior, but after one counsel has brought his examination to a close, a question can- not regularly be put to the witness by another counsel on the same side. Doe v. Roe, 2 Campb. 280. Demurrer to Evidence. If a party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he then demurs in law upon the evidence, and the precise operation of that demurrer is, to take from the jury and to refer to the judge the application of the law to the fact. Per Eyre, C. J., Gibson V. Hunter, 2 H. Bl. 206. On a demurrer to circumstantial evidence, the party offering the evidence is not obliged to join in demurrer, unless the party demurring will distinctly admit upon the record every fact, and every conclusion which the evidence offered conduces to prove. Id. 187. But where the evidence is certain, as where it consists of matter of record, or other matter in writing, the party offering the evidence may be compelled to join in demurrer or waive the evidence. Id. 206. The whole proceeding of a demurrer to evidence is under the control of the judge, before whom the trial is had, who may overrule the demurrer, upon which the party de- murring may tender a bill of exceptions. Id. 208. Where a de- murrer to evidence is admitted, it is usual for the court, or judge, to give orders to the associate to take a note of the testimony, which is signed by the counsel on both sides, and the demurrer is affixed to i\\epostea. Tidd, 916. B. JV. P. 313. The damages may be assessed either by the principal jury, conditionally, before they are discharged, or by another jury upon a writ of inquiry after the de- murrer is determined, and it is said to be the most usual course, when there is a demurrer to evidence, to discharge the jury with- out further inquiry. Ibid. '• 14 Eng. Com. Law Reps. 452. J 14 Id. 175. « 19 Id. 321. Bill of Exceptions, 135 Bill of Exceptions. A bill of exception lies upon some point of law, either in admit- ting or denying evidence, or a challenge, or some matter of law arising upon fact not denied, in which either party is overruled by the court. B. JV. P. 316. If such bill be tendered, and the excep- tions in it are truly stated, then the judge (by stat. Wesm. 2, 13 Ed. 1 c. 31) ought to set his seal, in testimony that such exceptions were taken at the trial, but if the bills contain matters false, or untruly stated, or matters in which the party was not overruled, he is not obliged to affix his seal. B. M P. 316. The bill of ex- ceptions must be tendered at the trial, and the substance of it reduced into writing at the time. Ibid. Tidd, 912. As a bill of exceptions can only be argued on error, where a writ of error will not lie there can be no bill of exceptions. Jbid ; hut see 2 Inst. 427. 136 EVIDENCE IN PARTICULAR ACTIONS. ASSUMPSIT ON SALE OF REAL PROPERTY. Vendor against Vendee. Ijv an action of assumpsit by the vendor of real property on the purchaser's default in completing the contract, the plaintiff must prove the contract ; the performance, by himself, of all conditions precedent, and the defendant's default. Proof of the contract.'] It will be necessary to prove a contract in writing, for by the statute of frauds, 29 Car. II. c. 3. s. 4, no action shall be brought whereby to charge any person upon any contract, or sale, of lands, tenements, or hereditaments ; or any interest in or concerning them, unless the agreement upon which such actions shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged there- with, or some other person thereunto, by him, lawfully authorised. The note, or writing, must specify the terms, for otherwise all the danger of perjury, which the statute intended to guard against, would be let in. Sugd. V. and P. 76. Thus where an auctioneer's receipt for the deposit was set up as an agreement, it was reject- ed, because it did not state the price to be paid for the estate, Blagden v. Bradbear, 12 Ves. 466, but had the receipt referred to the conditions of sale, so as to have entitled the court to look at them for the terms, it might have been enforced as an agreement. Ibid. So if a letter, properly signed, does not contain the whole agreement, yet if it actually refer to a writing that does, it will be sufficient, though the latter writing is not signed, and parol evi- dence is admissible to show the identity of the writing referred to. CUnan v. Cooke, 1 Sch. and Lef. 22. Allen v. Bennet, 3 Taunt. 169 ; see also Gordon v. Trevelyan, 1 Price, 64, Cooper v. Smith, 15 East, 103, Sugd. V. and P. 76, Richards v. Porter, 6 B. and C. 437,^ Smith v. Surman, 9 B. and C. 561.s The agreement cannot be enforced unless both the contracting parties are named in it. Charleicood v. Duke of Bedford, 1 Atli. 497. Wheeler v. Collier, 1 M. and M. 123. A bill to amend the law with regard to the proof of contracts under the statute of frauds has been introduced this session into the House of Commons, by Sir E. K. Sugden, and, if ' 13 Eng. Com. Law Reps. 229. « 17 Id. 443. jissumpsit on Sale of Real Properly. 137 passed before the publication of this Digest, it will be found in the Appendix. With regard to the signing, it has been held that a printed name is sufficient. Saimderson v. Jackson, 2 B. and P. 238, on the \lth sec. if recognised by, or brought home to the party, as having been printed by his authority ; Schneider v. JVorris, 2 M. and S. 288, on the 17th sec, and it is immaterial in what part of the agreement the name is signed ; ibid. Knight v. Crockford, 1 Esp. IGO ; but whether the writing of his name by the defendant, in the body of the instrument, for a particular purpose, (as stating a rent to be paid to himself,) be a sufficient signing, appears to be doubtful. Stokes V. Moore, 1 Cox, 219. Cox's note to 1 P. IVms. 771. Sugd. V. and P. 89. A signing as witness is sufficient, if the party sign- ing is cognizant of the contents of the instrument. Welford v. Beas- ley, 3 Atk. 503. Harding v. Crethorn, 1 Esp. 58. The statute requires the agreement to be signed by the parti/ to be charged therewith, or some other person thereunto, by him, lawfully authorised. It is good though only signed by the party to be charged, and not by the other party. Seton v. S'lade, 7 Ves. 275 ; and see the cases collected Sugd. V. and P. 73 ; see also Saun- derson v. Jackson, 2 B. and P. 238, on the 11 th sec. ; sed vide Wheeler v. Collier, 1 M. and M. 125. With regard to the person authorised by the party to sign, it is settled that such person need not be authorised in writing. Coles v. Tregothick, 9 Ves. 250. Emmerson v. Heelis, 2 Taunt. 48. A sale by auction is within the statute of frauds, and the auctioneer is the agent for both the ven- dor and vendee. Kenicorthy v. Schojield, 2 B. and C. 947.'' The agent must be a third person, and not one of the parties ; Wright v. Dannah,2 Campb. 203; on the 11 th sec. ; and, therefore, if the action is brought against the purchaser by the auctioneer himself, the signing of the defendant's name by the auctioneer will not be sufficient to satisfy the statute. Farebrolher v. Sim7nons, 5 B. and A. 333,' on the 11th sec. Where an agent is authorised to sell at a particular price, his clerk in his absence cannot contract without a special authority for that purpose. Coles v. Tregothick^ 9 Ves. 234. Henderson V. Barneicall, 1 Y. and J. 387. Sugd. V. and P. 91. Performance of conditions p-ecedejit.'] The plaintiff must be prepared to prove that he has performed all the conditions prece- dent stated in his declaration. Thus, where the plaintiff agreed to sell to the defendant a school-house, &c., and to convey the same to him on or before the first of August, 1797, and to deliver up the pos- session to him on the twenty-fourth June, 1796, and in considera- tion thereof defendant agreed to pay the plaintiff 120/. on or before the first of August, 1797, it was held that the plaintiff could not maintain an action for the 120/., without showing that he had con- k 9 Eng. Com. Law Reps. 286. -7 Id. 120. 18 138 ^/^ssumpsit on Sale of Real Properly. veyed, or tendered a conveyance, to the- defendant. Glazebrook v. JVoodrow, 8 T. R. 3G6 ; see the cases collected 1 Saund. 320, a. 2 Saund. 352, b {n). But where the performance of a condition pre- cedent has been dispensed with by the defendant, the plaintiff may aver such dispensation, as that he tendered a draft of the convey- ance to the defendant, and offered to execute and deliver such conveyance to him, but that he discharged the plaintiff from exe- cuting the same. Jones v. Berkley, Doug. 684. Wilmot v. Wilkin- son, 6 B. and C. 50G." Where by the terms of the contract the purchaser is to prepare the conveyance, the seller may bring an action for the purchase money without tendering a conveyance ; see Hawkins v. Smith, 3 East, 410 ; and it seems, that in the absence of any express stipulation, the purchaser is bound to prepare and tender the conveyance. Baxter v. Lewis, Forest, 61, Sugd. V. and P. 222; but see the cases cited, 3 Stark. Ev. 1609 {n). The plaintiff must prove his title to the property sold, and if he produces his title deeds at the trial, in proof of his title, it seems that it will not be necessary for him to call the subscribing witnes- ses. Thompson v. Miles, 1 Esp. 185; Sugd. V. and P. 216; 2 Phill. Ev. 99 ; but see Crosby v. Percy, 1 Campb. 304, contra. If the purchaser has not made an application for the title before the commencement of the action, and ho time is fixed upon for complet- ing the contract, it will be sufficient if the plaintiff can show a good title in himself at the time of trial. Thompson v. Miles, 1 Esp. 185; see Wilde v. Forte, 4 Taunt. 336; Bartlett v. Tuchin, 6 Taunt. 259.1 Defence. It is a good ground of defence under the general issue that an er- roneous mis-statement, or mis-description, has been wilfully intro- duced into the conditions of sale, to make the land appear more valuable. Duke of J\''orfolk v. Worthy, 1 Campb. 340; and see Ver- non V. Keys, 12 East, 637. So where a person is employed to bid by the vendor at the sale, not for the purpose of preventing a sale at an undervalue, but to take advantage of the eagerness of bid- ders to screw up the price, it seems that this will be deemed a fraud. Smith V. Clarke, 12 Ves. 483. Sugd. V. and P. 2i. Hoicardv. Castle, 6 T. B. 642. Crowder v. Austen, 3 Bingh, 368.™ Wheeler v. Collier, 1 M. and M. 126. The defendant may also insist upon a defect in the plaintiff's ti- tle, and it seems that a court of law will enter into equitable ob- jections to a title. Maberley v. Robins, 5 Taunt. 625." Elliot v. Ed- wards, 3 B. and P. 181. Sugd. V. and P. 219; but see Alpass v. Watkins, S T. R. 51Q. Romilly v. James, 1 Marsh. 600.'' 2 Phil. Ev. 101 ; see also R. v. Toddington, 1 B. and A. 560. So the defend- ant may show that the plaintiff had an interest in the pre- » 13 Eng. Com. Law Reps. 238. ' 1 Id 379. » 13 Id. U. » 1 Id. 214. V 1 Id. 379. Assumpsit on Sale of Real Properttj. 139 mises for a shorter term than he contracted to sell ; Farrar v. JVigkt- ingal, 2 Esp. 639, Hihhert v. Shee, 1 Camph. 113; or that the premises are subject to an incumbrance or annual payment, of which no notice has been given. Turner v. Beaurain, Sugd. V. and P. 252. Barnwell v. Harris, 1 Taunt. 430. The purchaser may reject a questionable title, and therefore a purchaser of a lease un- der a contract, describing it as containing none but the usual cove- nants, is not bound to accept the assignment, if the lease contains an unusual covenant, though such covenant is probably bad in point of law. Hartley v. Peliall, Peake, 131; see also Waring v. Hoggart, R. and M. 39. Where a lease was sold by auction, and produced and read at that time, and amongst the premises demised was a summer-house, which had been pulled down before the sale, it was held that the purchaser was not bound to complete the con- tract, though no mention was made of the summer-house in the particulars of sale. Granger v. Warms, 4 Campb. 83. Where the property consisted of several parcels sold by auction in distinct lots, Lord Kenyon held that the vendor, having made out a title to a single lot only, the whole contract might be rescinded, considering the purchase of the several lots as having been made with a view to a joint concern, and that the contract, for the convenience and interest of the purchaser, must be understood to be one entire con- tract for the whole. Chambers v. Griffith, 1 Esp. 149 ; but see Em- merson v. Heelis, 2 Taunt. 38. James v. Shore, 1 Stark. 36,i supra. Sugd. V. and P. 257, where it is' said that Chambers v. Griffith cannot be maintained as an authority. The purchaser may refuse to take a conveyance executed under a pov/er of attorney, as it multiplies his proofs. Coore v. Calloway, 1 Esp. 116. Richards v. Barton, Id. 268. Where a purchaser makes a proposal to purchase, and gives the vendor a certain time to consider it, he may within that time re- tract the offer. Routledge v. Grant, 4 Bingh. 663,' infra. Vendee against Vendor. 'If the vendor refuses, or is unable to complete his contract, the purchaser may either declare specially on the contract, or in case he has made a deposit, or paid any part of the purchase money, he may recover it in an action for money had and received. In the for- mer action he will be entitled to recover the deposit, and also inte- rest, and any expenses to which he may have been put in investi- gating the title, by way of special damage; in the latter he will be entitled to recover the purchase money or deposit only. Camfield V. Gilbert, 4 Esp. 221. Walker v. Constable, 1 B. and P. 306. Sugd. V. and P. 213. In neither form of action can he recover com- pensation for the fancied goodness of his bargain, where the ven- 1 2 Eng. Com. Law Reps. 456. ' 15 Id. 99. 140 ^^ssumpsit on Sale of Real Property. dor is, without fraud, incapable of making a title. Flureau v. Thoj-nhm,^ W. Bl. 1078. Bratt v. FAUs, Sngd. V. and P. 40. In the above cited case o{ Flureau v. Thornhill the vendor offered to convey such title as he had, or to return the purchase nnoney with interest, circumstances which did not exist in the following case. A person who had contracted for the purchase of an estate, but had not obtained a conveyance, put up the estate for sale, in lots by auction, and engaged to make a good title by a certain day, which he was unable to do, as his vendor never made a convey- ance to him ; it was held that the purchaser of certain lots at the auction might, in an action for not making a good title, recover not only the expenses which he had incurred, but also damages for the loss he had sustained by not having the contract carried into effect. llopJdns V. Glazebrook, 6 B. and C. 31.* The expenses of investi- gating the title cannot be recovered under a count for money paid. Ca??ifiekl v. Gilbert, 4 Esp. 221. Special action on the contract.'] In a special action on the con- tract by the purchaser, he must prove the contract, see ante, p. 136, the performance by himself of all conditions precedent, the defects of the vendor's title, and when he seeks to recover the de- posit, the payment of such deposit. It will not be enough to prove that the title has been deemed by conveyancers to be insufficient. Camfield v. Gilbert, 4 Esp. 221. The vendor must be prepared to make out a good title on the day on which the purchase is to be completed. If he delivers an abstract setting out a defective title, the purchaser may object to it, and when the abstract is delivered by the vendor, he must be able to verify it by the title deeds in his possession, and unless a good title is made out at the day fixed, the purchaser will be entitled to rescind the contract. Cornish v. Row- ley, Selw. JV. P. 170, Bei^ry v. Young, 2 Esp.QAO {n). It has been ruled by Lord Tenterden that the vendor of a lease is not bound to pro- duce his lessor's title without an express stipulation to that effect. George v. Pritchard, R. and M. 417. The plaintiff may be com- pelled to give the defendant a particular of every matter of fact which he intends to rely upon at the trial, as having been the cause of his not being able to con)plete the purchase, Collett v. Thomp- son, 3 B. and P. 246, but if a particular has not been given the plaintiff will be at liberty to prove any infraction of the conditions of sale. Squire v. Tod, I Campb. 293 ; see Todd v. Hoggart, 1 M. and M. 128, post, p. 142. A payment of the deposit to the agent of the vendor, is, in law, a payment to the principal, and in an action against the latter for the recovery of the money, it is immaterial whether it has actually been paid over to him or not. Duke of Norfolk v. Worthy, 1 Campb. 337. If the deposit has been paid to the auctioneer, an action • IS Eng. Com. Law Rops. 100. Assumpsit on Sale of Real Property. 141 for it will lie against him before payment over to his principal ; Burrough v. Skinner, 5 Bzirr. 2639 ; and see Edwards v. Hodding, 5 Taunt. 815;' and where an auctioneer signed a contract for the sale of a house in his own name, and received the deposit (his prin- cipal being present) and after the purchaser had left the room, paid over the deposit to his principal, it was ruled by Lord Ten- terden that the purchaser might, notwithstanding the payment over, maintain an action against the auctioneer (or the deposit. Gray v. Gutteridge, 3 C. and P. 40." But it seems that interest on the deposit cannot be recovered from him, except under parti- cular circumstances, and, at all events, not before a demand for the repayment of the money has been made upon him. Lee v. Munn, 8 Taunt. 45.^ Farquhar v. Farley, 7 Taunt. 594.^' Sugd. V. and P. 487. Where an auctioneer does not disclose the name of his prin- cipal, an action will lie against himself for damages on breach of contract, Hanson v. Roherdeau^ Peake, 120 ; and see Simon v. Mo- tivos, 3 Bu7T. 1921. Owen v. Gooch, 2 Esp. 567. Where the pur- chaser recovers the deposit only from the auctioneer, he may, in a special action against the vendor, recover interest and the expenses of investigating the title. Farquhar v. Farley, 7 Taunt. 592.'' With regard to the damages it seems that the purchaser may recover the deposit with interest, and the expenses of investigating the title. Richards v. Barton, 1 Esp. 268. Turner v. Beaurain, Sugd. V. and P. 214. Farquhar v. Farley, 7 Taunt. 592 ;'' hut see Wilde V. Forte, 4 Taunt. 341. Canifield v. Gilbert, 4 Esp. 223. Sugd. V. and P. 488. If the residue of the purchase money has been lying ready, without any interest being made of it, such interest may be recovered. Sugd. V. and P. 488. Money had and received to recover deposit.^ In an action for money had and received to recover the deposit, or any portion of the purchase money which may have been paid, the plaintiff must prove the contract, ante, p. 136, the payment of the money, supra, and the defects in the vendor's title, ante, p. 138. To enable the purchaser to maintain this action the contract must be disaffirmed ah initio. If the purchaser has had an occu- pation of the premises under the contract, he adopts the contract, and cannot disaffirm it afterwards by quitting the premises, as the parties cannot be put in the same situation in which they before stood. Hunt V. Silk, 5 East, 449. If the original contract be void, as if it be a parol agreement for the sale of lands, the purchaser can only recover his deposit in this form of action, since he cannot sue upon the special contract. Walker v. Constable, 1 B. and P. 306. Interest cannot be recovered under a count for money had and received. Ibid. Tappendal v. Randall, 2 B. and P. 472. Mar- shal V. Poole, 13 East, 100. Where the vendor was unable to com- • 1 Eng. Com. Law Reps. 277. « 14 Id. 201. M Id. 14. "2^.223. 142 Assumpsit for Use and Occupation. plete his contract on the day, and it also appeared that the pur- chaser was not prepared to pay the purchase money on that day, Best, C. J. held that the agreement was entirely vacated, and the purchaser entitled to recover his deposit. Clarke v. King, R. and M. 394. Although a purchaser be expressly required to tender a conveyance, yet if a bad title be produced, he may maintain an ac- tion for the recovery of his deposit without tendering a conveyance. Lowndes v. Bray, Sugd. V. P. 223. So where the vendor has, by selling the estate, incapacitated himself from executing a convey- ance to the purchaser, further trouble and expense on his part are unnecessary, and he may accordingly sustain an action without ten- dering a conveyance, or the purchase money. Knight v. Crochford, 1 Esp. 189, Sugd. V. and P. 223. And if the vendor, when called upon for an abstract of his title, although before the time when the conveyance was to be made, appears to have no title, the vendee may rescind the contract. Roper v. Combes, 6 B. and C. SSS.'' If a material fact, affecting the title, is omitted in the conditions of sale, the vendee may rescind the contract, and recover the deposit. Wariyig v. Haggart, R. and M. 39. The plaintiff cannot, at the trial, insist upon any objection which he might have taken, but neglected to take, at the time of the rescinding the contract. Todd V. Haggart, 1 M. and M. 128. ASSUMPSIT FOR USE AND OCCUPATION. This action is grounded on stat. 11 G. II. c. 19, s. 14, by which it is enacted that it shall be lawful for landlords, where the agree- ment is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments, held or occupied by the defen- dants, in an action on the case, for the use and occupation of what was so held or enjoyed ; and, if on the trial of such action, any parol demise, or any agreement (not being by deed) whereon a certain rent was reserved, shall appear, the plaintiff shall not therefore be nonsuited, but may make use thereof as evidence of the quantum of damages to be recovered. — The plaintiff must prove his own title to sue, the defendant's occupation, and the amount of damages. Plaintiff ^s title."] If the defendant has come in under the plain- tiff, or has acknowledged his title, as by the payment of rent to him, he will not be permitted to impeach it at the trial ; Syllivan v. Stradling, 2 Wils. 215, Cooke v. Loxley, 5 T. R. 4, Phipps v. Scul- thorpe, 1 B. and A. 50 ; and it is not material in such case that the plaintiff should have the legal title ; Hull v. Vaughan, 6 Price, 157 ; but unless the defendant came in underthe plaintiff, or has recognised his title, the plaintiff can only recover rent from the time of the legal estate being vested in him. Cobb v. Carpenter, 2 Campb. 13 (n). ».13 Eng. Com. Law Reps. 246. Assumpsit for Use and Occupation. 143 There is a distinction between the case where a person has actual- ly received possession from one who has no title, and the case where he has merely attorned by mistake to one who has no title ; in the former case the tenant cannot (except under very special circumstances) dispute the title, in the latter he may. Per Bay- ley, J. Cornish v. Searell, 8 B. and C. 475J Rogej^s v. Pitcher, 6 Taunt. 202.^ Gravenor v. WoodJiouse, 1 Bingh. 38 ;" and see the cases cited infra, and in ^'•Replevin" *^ Evidence on plea of non demisit or non temdt.^' Where A. hired apartments by the year from B., and B. afterwards let the entire house to C, who sued A. for use and occupation, it was held that A. could not impeach C.'s title; Rennie v. Robinson, 1 Bing. 147 ;'' but where land belonging to a parish was occupied by A., and he paid rent to the churchwar- dens, who executed a lease of the same land for a term of years to B., and gave A. notice of the lease, in an action for use and occu- pation by B. against A., it was held that A. was not estopped, by having paid rent to the churchwardens, from disputing B.'s title, and that B. could not derive a valid title from the churchwardens. Phillips V. Pearce, 5 B. and C. 433.'' In general the title of the plaintiff is established by the production of the lease or agreement, which is proved in the usual manner, by calling the attesting wit- ness ; but if there be no actual lease or agreement, the plaintiff's title may be established by evidence of the defendant having paid rent to him, or submitted to a distress by him. Panton v. Jones, 3 Camph. 372. Notice to produce the receipts for rent, and the no- tice of distress, should in such cases be given. If it appears that the defendant holds under a written agreement not produced, or which when produced cannot be read for want of a stamp, the plaintiff will not be allowed to give parol evidence of the holding, and must be nonsuited. Brewer v. Palmer, 3 Esp. 213. Ramsbot- tom V. Mortley, 2 M. and S. 445, ante, p. 116. Defendant's occupation.'] It is prima facie sufficient for the plaintiff to prove that the defendant occupied the premises, and the continuance of the occupation will be presumed till the contra- ry appear. Harland v. Bromley, 1 Stark. 455,"^ Ward v. Mason, 9 Price, 291. It is not necessary for the plaintiff to prove a per- sonal occupation of the premises by the defendant ; an occupation which the defendant might have had, if he had not voluntarily abstained from it, is sufficient ; Per Gibbs, C. J. Whitehead v. Clif- ford, 5 Taunt. 519,'^ Pinero v. Judson, 6 Bingh. 206 ;*■ and if A. agree to let lands to B., who permits C to occupy them, B. may be sued for use and occupation. Bull v. Sibbs,'8 T. R. 327 ; and see Dingly V. Angrove, 2 Smith, 18, Conolly v. Baxter, 2 Stark. 527.s So a tenant who has quitted in pursuance of a parol license from his landlord, and without having given a notice to quit, remains liable, Mollett v. Brayne,2 Campb. 104; and see Matthews v.Sewell, T 15 Eng. Com. Law Rep.s. 267. » 1 Id. 355. • 8 Id. 235. »> 8 Id. 275. « 11 Id. 264. i 2 Id. 467. • 1 Id. 173. ' 19 Id. 56. » 3 Id. 458. 144 Assumpsit for Use and Occupation. 8 Taunt. 270," Thompson v. Wilson, 2 Stark. 379,' Johnstone v. Huddlestone, 4 B. and C. 922," even though the landlord, on the tenant's quitting, put up a bill in the window for the purpose of having the premises let, Redpalh v. Roberts, 3 Esp. 225 ; see John- st07i. V Huddlestone, 2 B. and C. 922," unless the landlord has ac- cepted a third person as tenant, which operates as a surrender in law of the first tenant's term. Thomas v. Cook, 2 B. and A. 119. Thus where a tenant from year to year, at a rent payable half- yearly, quitted without giving a notice to quit, and the landlord, before the expiration of the next half year, let the premises to another tenant, it was held that the landlord was not entitled to recover rent from the first tenant, from the expiration of the cur- rent year when he quitted the premises, to the time when the landlord re-let the same to the second tenant. Hall v. Burges, 5 B. and C. 332 ;' and see Walls v. Atcheson, 4 Bing. 462.» And in such case, if the tenant quit in the middle of a quarter, the land- lord cannot recover rent pro rata, for the portion of the quarter during which the tenant occupied. Grimman v. Legge, 8 B. and C. 324.° If the landlord has himself determined the occupation by accepting the key of the house, he cannot recover in this action. Whitehead v. Cliforn, 5 Taunt. 518." Although the premises are burnt down, and remain unoccupied, the tenant still continues lia- ble for the rent subsequently accruing. Baker v. Holtpzaffell, 4 Taunt. 45. Before the late bankrupt act it was held that assumpsit for use and occupation lay against a lessee, upon his agreement to pay rent during the tenancy, notwithstanding his bankruptcy and the occu- pation of the assignees during part of the time for which the rent accrued ; Boot v. Wilson, 8 East, 311 ; but now, by 6 Geo. IV. c. 16, s. 75, any bankrupt entitled to any lease, or agreement for a lease, if the assignees accept the same, shall not be liable to pay any rent accruing after the date of the commission, or to be sued in respect of any subsequent non-observance or non-performance of the conditions, covenants, or agreements therein contained ; anil if the assignees decline the same, shall not be liable as aforesaid, in case he deliver up such lease or agreement to the lessor, or such person agreeing to grant a lease, within fourteen days after he shall have had notice that the assignees shall have declined as aforesaid. Where assignees entered and occupied premises in the middle of a year, it was held that use and occupation could not be maintained against them for the bankrupt's occupation as well as their own, without proving that the bankrupt's occupation was at their request. Naish v. Tatlock, 2 H. Bl 319; but see Gibson v. Courthorpe, 1 D. and R. 205.p So a husband is not liable for the occupation of a house by his wife, dum sola, Richardson v. Hall^ 1 B. and B. 50.i If, after the determination of a lease, the tenant holds over and t 4 Eng. Com. Law Reps. 101. i 3 Id. 391. MO Id. 471. 'Hid. 246. ■ 13 Id. 52. " 13 Id. 229. • 1 Id. 173. p 16 Id. 33. ^ 5 Id. 14. Assumpsit for Use and Occupation. 145 pays rent, such payment is conclusive evidence of a tenancy ; and he will be liable in an action for use and occupation for the time he occupies the premises. Bishop v. Howard, 2 B. and C. 100 ;■• and see post in "■Ejectment" But where a tenant from year to year on the expiration of his landlord's title, continues in possession for one quarter, and pays rent for that quarter to the party entitled, but quits at the end of the quarter, the payment is not evidence of a tenancy for more than the quarter, and the party entitled cannot sue the tenant for use and occupation beyond the quarter. Freeman v. Jury, 1 M. and M. 19. Where the defendant has entered under a contract for sale, which ultimately goes off, and his occupation has been, a beneficial one, it seems that he is liable in this action, though it is otherwise when the occupation has not been beneficial ; Ilearn v. Tomlin, Peake, 192; or when the plaintiff has derived a sufficient benefit by the contract, as where he retained the purchase-money during the -whole time of the occupation. . Kirtland v. Pounsett, 2 Taunt. lid. Where the defendant contracted to sell the premises, but subsequently gained possession of them by a false representation, he was held liable during such possession for use and occupation, though at that time he was the legal owner of the freehold. Hull V. Vaughan, G Price, 157 ; see also Keating v. Bidkcley, 2 Stark. 419.' Whether the owner of land can bring use and occupation against a trespasser, waiving the tort, appears to be doubtful. See Hamblyv. Trott, Coicp. 375; Birch v. Wright, 1 T. R. 387; Foster V. Stewart, 3 M. and S. 199 ; Bennet v. Francis, 2 B. and P. 554. Situation of the premises.'] The local situation of the premises need not be stated ; but if stated, and described as situate in a wrong parish, it is a fatal variance ; Wilson v. Clark, 1 Esp. 273, Guest V. Ca2imont,3 Campb. 235; but where they were described as situate in the parish o( Lambeth, the real name of the parish be- ing St. Mary, Lambeth, though usually called Lambeth, the vari- ance was held immaterial. Kirtland v. Pounsett, 1 Taunt. 570 ; see Goodtitle v, Walter, 4 Taunt. 672, where it is said to be suffici- ent to describe premises as lying in any parish by the name by which the parish is ordinarily known ; but see Taylor v. Hooman, 1 B. Moore, 161 ;'J and see post, in " Ejectment ;" see aha Taylor v. Willans, 3 Bingh. 449," Doe v. Carter, 1 Y. and J. 492. Damages.'] Where a rent is mentioned in the lease or agree- ment, such rent will be the measure of damages, though the least be void by the statute of frauds, De Medina v. Poison, 4 Holt, 47 ;'' but where there is no express agreement as to rent, the value of the premises must be proved ; and where A. took a farm under an agreement which he never signed, and the material terms of which 'DEng.Com.LawReps. 41. -Sid. 411. > 4 Id. 304. M3Id.46. '3 Id. 21. 19 14G Jissumpsit for Use and Occupation. the lessor failed to fulfil, so that the defendant had not the octu- pationof all the land stipulated for, it was held that the jury might ascertain the value of the land, without regarding the amount of rent reserved hy the agreement. Tomlinsoii v. Day, 2 B. and B. C80,- 5 B. Moore, 558, S. C. Defe7ice. Plaintiffs title expired.] Although the. defendant cannot im- peach the title of the plaintiff under whom he holds ; ante, p. 142 ; yet he may show that it has expired ; Holmes v. Pontin, Peake, 99. Morgan v. Ambrose, Pcake's Ev. 277. Gravenor v. Woodhouse, 1 Bingh. 43 ;" but where the defendant had come in under the plain- tiff, Lord Ellenborough held that it was not competent for him to show that the plaintiff's title had expired, unless he had at the same time solemnly renounced the plaintiff's title, and commenced a fresh holding under another person. Balls i\ Westwood, 2 Campb. 11 ; and secKeavev. Moss, 1 Bi7igh. SGO,"- and ante, p. 143 ; and post, *^ Replevin,'''' " Evidence on plea of JVo?i Dimisit, SfC.'" In an action by the assignee of a reversion, it is a good defence that the defendant paid the rent to the lessor before notice of the assignment. Birch v. Wright, 1 T. R. 378 ; and see Lumley v. Hodgson, 16 East, 99. Moss v. Gallimore, Dougl. 282. Defendant's occupation determined.'] An agreement that on the tenant's quitting the rent shall cease, and an acceptance of the key by the landlord or a letting of the premises by him to a third person is, as already stated, ante, p. 144, a sufficient defence ; Whitehead v. Clifford, 5 Taunt. 518." Hall v. Burgess, 5 B. and C. 332."* Grammar v. Legge, 8 B. and C. 324.'' Waller v. Atcheson, 3 Bingh. 462,'= stcded ante, p. 144 ; but evidence that the keys of the premises were delivered by an agent of the defendant to a ser- vant at the plaintiff's house, and that the plaintiff declared that they had been lost or mislaid is not sufficient. Harland v. Bromley, 1 Starli. 455.'' An eviction by the landlord determines the occu- pation ; and where the premises are let at an entire rent, an evic- tion from some part, if the tenant gives up possession of the resi- due, is a complete defence; Smith v. Raleigh, 3 Campb. 513 ; but if the tenant continues in possession of the residue, he seems liable pro tanto ; Stokes v. Cooper, 3 .Ca??rpb. 514 {71) ; and an eviction of the under-tenant is an eviction of the tenant. Burn v. Phelph, 1 Starkie, 94.^ Where the defendant proved that he took possession as administrator, and that the premises had been productive of no profit to him, and that eight months after the intestate's death he had offered to surrender them to the plaintiff, this was held a good defence. Re7nnant v. Bremridge, 8 Taunt. 191.' It is also a good defence that the defendant has had no beneficial use " 6 Eng. Com. Law Reps. 315. ^ 8 Id. 233. y 8 Id. 348. ' 1 Id. 173. •llld.246. "15^.229. «13Id.52. -i 2 Id. 467. •2ld.310. '4ld.66. Assumpsit on Bills of Exchange. 147 and occupation, through the default of the plaintiff, as where the premises become unsafe and useless for want of repairs, the tenant not being bound to repair ; in which case he is not liable in this action, though he has given no notice to quit. Edwards v. Ether- ington, R. and M. 268. Defendant treated by plaintiff as a trespasser.'] If the landlord has treated the tenant as a trespasser, he cannot afterwards re- cover against him in this action. Thus if he has recovered against him in ejectment, he cannot sue in this action for the rent accruing after the day of the demise. Birch v. Wright, 1 71 R. 378. See Bridges v. Smith, 5 Bingh. 410.^ But the mere bringing of an ejectment, and laying the demise before the time of the rent accru- ing, is no bar to an action for use and occupation. Cobb v. Carpen- ter, 2 Campb. 13 (n). Statute of limitations.'] The statute of limitations is a good de- fence, in an action against a person who has been tenant from year to year, but who has not within the last six years occupied the premises, paid rent, or done any act from which a tenancy can be inferred, though no notice to quit has been given. Leigh v. Thorn- ion, 1 B. and A. 625. Illegality.] It is a good defence that the premises have been occupied for an immoral purpose, with the plaintiff's knowledge. Crisp V. Churchill, cited 1 B. and P. 340 ; and see Gerardy v. Richardson, 1 Esp. 13. Jennings v. Throgmoi'ton, R. and M. 251 ; and see post, " Assumpsit," " Defence" ** Immorality." ASSUMPSIT ON BILLS OF EXCHANGE. Production and proof of the bill] In all actions upon bills of exchange and promissory notes, it is necessary for the plaintiff to produce the bill or note, and to show that it is the same as that on which he has declared. But where it appears that the instrument has been destroyed, as where the defendant tore his own note of hand, a copy is admissible. Anon. 1 Ld. Raym. 731. The plain- tiff cannot recover on a lost bill, indorsed by the payee, without proving that it has been destroyed, though he has offered an in- demnity to the defendant ; Pearson v. Hutcheson, 3 Campb. 211, 6 Esp. 126, S. C. Hansard v. Robinson, 7 B. and C. 90;" R. andM. 404 (n), S. C; and though the bill was lost after it became due ; Poole V. Smith, Holt, 144.' Hansard v. Robinson, ubisup.; and an express promise to pay the lost bill will not entitle him to recover. Davis V. Dodd, 4 Taunt. G02. But where a bill is lost with only a special indorsement upon it by the payee, the indorser may re- t 15 Eng. Com. Law Reps. 481. *> 14 * 3 Id. 55. 148 Assumpsit on Bills of Exchange. cover upon it, for the holder can make no title to it. Lo77g v. Bail' He, 2 Campb. 214 {n) ; and sec Sitiith v. Clarke, Peaka, 225. If the acceptor improperly detains the i)ill in his hands, the drawer or other party may sue him upon it. and give him notice to produce it. Smith V. M'Chirc, 5 East, All ; and where the defendant had admitted that he owed the money due upon a bill, which was in his own possession, Abbott, C. J., held that such admission might be given in evidence, under the common counts, without a notice to produce the bill. Fnjcr v. Brmcn, R. and M. 145. The bill or note produced must appear to be the same upon which the plaintill'has declared, and if any material variance exist, it is a ground of nonsuit. Where a bill appears to be altered, it lies upon the party producing it to sliow that the alteration was not impro- perly made. Hcnmaii v. Dickinson, 5 Bingh. 183 ;'' see ante, p. 126. Variance in names.'\ A variance in (he names of the parties to the action will not be a ground of nonsuit, because it should be plea- ded in abatement, provided the identity be proved, as where the plaintiir was called Edvvard instead of Edmund ; Boughton v. Frere, 3 Campb. 29 ; so of a misnomer in the surname of plaintiff; Jowett V. Charnock, G M. and S. 45 ; and where the plaintiii is misnamed in a note, he may show by evidence that he was the person intend- ed. fVillis V. Barrett, 2 Stark. 29.^ Where a bill is drawn with the payee's name in blank, and in the declaration it is stated that A, B. (a bona fide holder who has inserted his own name) was payee, it is no variance. Aticood v. Griffin, Ry. and Moo. 425. A variance in the christian name of the defendant is not material, if it appear that he has been served w^ith process. Dickenson v. Bowes, 16 East, 110. But where, in an action against three ma- kers of a nofe, the declaration stated it to have been made by Wil- liam Austin, Robert Strobell, and William Shutlijfe, of whom the two latter were outlawed, and it appeared that the names were William Austin, Samuel Strobell, and William Shirlliffe, the vari- ance was held fatal. No proof was given of the identity of the parties, Gordon v. Austin, 4 T. R. 611. Where the misnomer is in the name of a person not a party to the action, and cannot there- fore be pleaded in abatement, it is fatal; as John Crouch, for John Couch. Whitirell v. Burnett, 3 B. and P. 559. But where a bill was stated to have been indorsed by Philip Phillip, and it appear- ed that his name was Philip Phillips, and that he had so indorsed the bill. Lord Ellenborough refused to nonsuit, observing that whe- ther the name on the bill be the party's false or true name is im- material, if it be his name of trade, and that the only question was as to the identity of the person. Forman v. Jacob, 1 Stark. 47.™ Proof that other persons joined the defendant in drawing, or » 15 Eng. Com. Law Reps. 409. ' 3 Id. 229. " 2 Id. 288. Assumpsit on Bills of Exchange. T49 accepting the bill, is immaterial under the general issue, it being matter of plea in abatement. Mountstephen v. Brooke, 1 B. and A. 224 ; see ante, p. 43, As to variance in the date of a bill or note, vide ante, p. 50. Vanance in place of payment.'] If a bill is drawn (In the body of it), payable at a particular place, it is a fatal variance to state it without that qualification. Bayleij on Bills, 310. So where a bill is directed to " A. B. payable in London," at the foot, payment in London is part of the contract, and the omission of the qualification would be fatal. Hodge v. Fillis, 3 Campb. 463. And where a note contains, in the body of it, a promise to pay at a particular place, it is a variance to omit the place ; Roche v. Campbell, 3 Campb. 247, Sanderson v. Bowes, 14 East, 500 ; but where the place of pay- ment is only mentioned in the memorandum at the foot of a note, it is no variance to omit it ; Price v. Mitchell, 4 Campb. 200. Williams V. Waring, 10 B. and C. 2; and if stated in the declaration to be made payable there, it is a variance. Exon v. Patssel, 4 M. and S. 505 ; but see Hardy v. Woodroffe, 2 Stark. 319." Sproule v. Legg, 3 Stark. 157,° semb. cont. Where the memorandum at the foot of the note was printed. Lord EUenborough considered the place of payment there mentioned to be part of the contract. Tregothick v. Edwin, 1 Stark. 468.i' By stat. 1 and 2 Geo. IV. c. 78, if a person shall accept a bill payable at the house of a banker, or other place, without further expression, it shall be taken to be a general accep- tance ; but if he express that he accepts it at a banker's, or other place, and not otherwise or elsewhere, such acceptance shall be taken to be a special acceptance. See Selby v. Eden, 3 Bingli. 61 l,i Fayle v. Bird, 6 B. and C. 531 ;'' post, p. 152. Variance in direction.'] An allegation that the bill was direct- ed to the defendant, is not supported by proof that the drawer drew the bill to his own order, payable at a specified place, though the defendant had accepted it. Gray v. Milner, 2 Stark. 336 ;' see 3 B. Moore, 90, 8 Taunt. 739,* S. C, seeond action on same bill. In an action against the acceptor upon a bill directed to him, or, in his absence, to J. S., the conditional direction to J. S. need not be stat- ed. Anon. 12, Mod. 447. Bayley on bills, 309. Variance in consideration.] The words "value received," in a bill payable to the drawer's order, mean value received by the drawee; and if stated to be value received by the draujer, it is a variance. Higlimore v. Prijnrose, 5 M. and S. 65. Priddy v. Hen- brey, 1 B. and C. 675." But where the bill is drawn payable to the order of a third person, " for value received," it is no variance » 3 Eng. Com. Law Reps. 363. » 14 Id. 174. p 2 Id. 470. i 13 Id. 70. '13 Id. 246. -3 Id. 372. Mid. 265. " 8 Id. 179. 1 50 Assumpsit on Bills of Exchange, to state that it was for value received of the drawer. Grant v. Da Costa, 3 M. and S. 351. " Value received" in a note, imports value received from the payee. Clayton v. Gosling, 5 B. and C. 360.' Value received in leather, for value delivered in leather, is no variance. Jones v. Mars, 2 Campb. 30G. Variance in statement of currency.'] Where the declaration on a bill drawn in Ireland stated that it was drawn for a certain sum, without stating it to be Irish currency, which it was in fact, the variance was held fatal. Kearney v. King, 2 B. and A. 301. Sprowh V. Legge, 1 B. and C. 16.'' Variance in proof of the draicing, w accepting, or indorsing^ Where the declaration stated that A. indorsed a note, his own hand- itriting being thereunto subscribed, and it appeared to have been indorsed by procuration, it was held a variance ; Levy v. Wilson, 5 Esp. 180 ; but in a similar case, where it appeared that the name was written by the wife of the indorser, under his authority. Lord Ellenborough was inclined to think it enough to show the name written by an authorised agent ; Hehnsley v. Loader, 2 Campb. 450 ; and where the declaration stated that the defendants made their bill, " their own proper hands being thereunto subscribed," and the bill appeared to be drawn in the defandant's firm of " Mars and Co." Lord Ellenborough refused to nonsuit for the variance. Jones V. Mars, 2 Campb. 305. So where the averment was, as in the above case, but it appeared that the name was written by the son of the party with his authority. Lord Tenterden held it to be no variance. Booth v. Grove, 1 .^7. and M. 182. A note made by A. only, cannot be declared on as the joint note of A. and B. though given to secure a debt for which A. and B. were jointly liable. Siffkin V. Walker, 2 Campb. 308. Variance in presentment.'] A variance in the day of present- ment is not material, in an action against the acceptor on a bill pay- able a given time after sight ; Forman v. Jacob, 1 Stark. 46 ;" but where the time of payment depends upon the presentment, and the action is against the di aiver of a bill, or indorser of a bill or note, the very day of the presentment ought to be stated. Bayley on bills, 317. However, where the averment is that the bill was presented when it became dve and payable, to wit, on &,c., it is not necessary to prove the exact day laid under the videlicet, and therefore if it be a Sunday, it is immaterial. Bynner v. Russel, 1 Bingh. 23,^ 7 B. Moore, 286, S. C. And if a presentment by a certain person is alleged, a presentment by another may be proved. Boehm v. Camp- bell, 1 Gow, 55.'' ^ 11 Eng. Com. Law Reps. 252. " 8 Id. 11, "2 Id, 288. y 8 Id. 230. » 5 Id. 459. Payee against Acceptor. 151 If the word "at" be inserted before the name of the drawee, it Js no variance to state that the bill was drawn on the drawee. Shuttleicorth v. Stephens, 1 Campb. 407 ; and see Ricss. and Ry. C. C. R. oil, Allen v. Mawson, 4 Campb. 115. Where an instru- ment was in this form — " Three months after date I promise to pay, &c. " J. B. Grutherot, John Bury. " 35, Montague-place, (Indorsed) John Bury." It was held that the holder might treat this as a promissory note, or {Per Ld. Tenterden, Bayley, and Holroyd, J. J.) as a bill of ex- change at his election. Edis v. Bury, 6 B. and C. 433.* Payee against Acceptor. The plaintiff must produce the bill and prove the acceptance by the defendant, and if such acceptance is conditional, that the condi- tion has been performed. Acceptance in writing or parol.'] By stat. 1 and 2 Geo. IV. c. 78, no acceptance of any inland bill of exchange shall be sufficient to charge any person, unless the acceptance be in writing on the bill, or if there be more than one part of the bill, on one of the parts. But in the case of foreign bills, a parol acceptance, or an acceptance by a collateral writing, is still sufficient. A letter, stating that such a bill " shall meet with due honour," is an accept- ance, ,C7ar/ie V. Cock; 4 East, 57, or that the holder " may rest sa- tisfied as to payment." Wilkinson v. Lutwidge, 1 St?\ 649 ; see also Wynne v. Raikes, 5 East, 514. " What ! not accepted ? We have had the money, and they ought to be paid ; but I do not inter- fere in this business, you should see my partner," held to be an acceptance. Fairlee v. Herring, 3 Bingh. 625.'' " Your bill shall have attention," is not an acceptance, Rees v. Warwick, 2 B. and A. 113, and a promise to pay a non-existing bill, is no acceptance, Johnson v. Collins, 1 East, 98, unless perhaps some person be there- by induced to take or retain the bill. Jbid. Pillans v. Van Meirop, Burr. 1663. Pier son v. Dunlop, Cowp. 571. Bay I. on bills, 144. Acceptance, absolute or conditional.'] If the acceptance is condi- tional, a performance of the condition must be alleged and proved. Swan V. Cox, 1 Marsh. 170, or if the condition has not been per- formed, a legal excuse must be averred and proved. Acceptance, general or special] An acceptance at a banker's or other place is only a general acceptance, but an acceptance at a banker's or other place only, and not otherwise, or elsewhere, is a qualified acceptance, and a presentment of the bill there must be » 13 Eng. Com. Law Rops. 227. •> 13 Id. 78. 152 Jlssumpsit on Bills of Exchange. stated and proved. 1 and 2 Geo. IV. c. 78. A bill which is drawn payable at a particular place, is within this statute, and unless the acceptance is a special one within the act, it is not necessary to aver or prove a presentment at the particular place, it being held that there is no distinction between the case where the bill is so render- ed payable bj-^ the language of the drawers, and the case where it is accepted so payable by the language of the acceptor. Selby v. Eden, 3 B'lngh. Gll.^ Fdijle v. Bird, G B. and C. 531." In the case of a general acceptance, it is not necessary to aver or prove a pre- sentment ; Turner v. Hayden, 4 B. and C. 1 ;■= but if the acceptr ance is qualified, the plaintitFmust aver and prove presentment at the place named, Rowe v. Young, 2 B. ami B. 1G5,' though in the latter case notice of non-payment to the acceptor is unnecessary; Treacher i". Uinton, 4 B. and A. 413.' The holder need not present a bill, specially accepted, at the place named, on the very day it becomes due, provided the money is not lost by such neglect. Rhodes V. Gent, 5 B. and A. 244." And where, since the stat. 1 and 2 Geo. IV. c. 78, a bill is accepted payable at a banker's, without saying, " and not otherwise or elsewhere," which is a general acceptance, and the holder neglects to present it, and the bankers fail with money of the acceptor in their hands, the accep- tor is not thereby discharged. Turner v. Hayden, B. and C. l." Acceptance, how proved.'] The acceptance, if written, is proved by evidence of the acceptor's hand-writing, and if there is an at- testing witness, by calling him. If several, not partners, are acceptors, the handwriting of each must "be proved. Gray v. Palmers, 1 Esp. 135. If one of several partners accept a bill drawn on the firm, it is sufficient to prove the partnership, and his hand- writing, in an action against all; Mason v. Rumsey, 1 Camph. 384; but it is a good defence that the plaintiff had notice, that the firm would not be bound by such an acceptance. GaJlway v. Smithson, 10 East, 2G4, or that the bill was not accepted for partnership purposes, and that there is covin between the partner who accepts and the plaintiff. Sherrif v. Wilkes, 1 East, 48. Green v. Deakin, 2 Stark. 347.' But in the absence of fraud or collusion a party who has received a bill, given by one of s^everal partners for his separate debt, may sue the partnership on such bill. Sivan v. Steele, 7 East, 210. Ridley v. Taylor, 13 East, 175. Baker v. Charlton, Peahe, 80. In an action against A, and B. as acceptors, if A. pleads a plea which admits his signature, yet it must still be proved as against B. Gray v. Palmers, 1 Esp. 135. If the acceptance is by agent, his authority and handwriting must be proved, and the agent himself is a competent witness to prove the authority. If the authority was in writing it should be produced « 13 Eng. Com. Law Reps. 70. * 13 Id. 246. • 10 Id. 259. ' 6 Id. 53. «6Id.46n. h 7 Id. 84. '3 Id. 377. Payee against Acceptor. 153 and proved. Johnson v. Mason, 1 Esp. 90. If (he defendant ac- knowledges his handwriting, or promises to pay, Jones v. Morgan, 2 Campb. 474, or pays part, Vaughan v. Fuller, 2 Str. 1246, it is an admission, and dispenses with theproof of the acceptance. An admis- sion by one of several acceptors, not partners, is not evidence against the rest ; Gray v. Palmers, 1 Esp. 135; but after a partnership is established, the admission of the partner who accepted the bill will be proof of the acceptance against all, Hodenpyl v. Vingerhoed, Chitty on bills, 489, bth ed., see ante, p. 30, and an admission by one partner of his partnership with his co-defendants, who had been outlawed, was held to be sufficient proof of the partnership as against him. Sangster v. Mazzarredo, 1 Stark. 161." If the accep- tor, on being applied to for payment, desire the party to call again, it will not prevent him from proving the acceptance a forgery, but it is otherwise if he has adopted the acceptance, as by paying other bills of the same kind. Barber v. Gingell, 3 Esp. 60, or acknow- ledging the handwriting to be his. Leach v. Buchanan, 4 Esp. 226. Where in an action against the acceptor of a bill, his attorney gave a notice to produce all papers relating to a bill described as the bill in question, " accepted by the said defendant," the notice was held to be prima facie evidence of the acceptance. Holt v. Squire, R. and M. 282. Some evidence of the identity of the defendant and the person who has accepted the bill is necessary, and it is not sufficient merely to prove that a person, calling himself by the same name, accepted the bill. Bull. JV. P. 171. Middleton v. Sandford,4 Campb. 34. Perkins v. Hawkshaw, 2 Stark. 239 ;^ see Bulkeley v. Butler, '^ B. and C. 441,"" post, p. 155, Roach v. Ostler, 1 M. and R. 120. Acceptance, effect o/".] An acceptance admits the handwriting of the drawer, and if drawn by procuration, the procuration, Rob- inson V. Yarrow, 7 Taunt. 455," Porthouse v. Parker, 1 Campb. 82, and the acceptor cannot say that the drawer's name is forged. Smith V. Chester, 1 T. R. 655, Bass v. Clive, 4M. and S. 15. So if the bill was drawn in the name of a firm, the acceptor cannot object that it was drawn by a single person, Bass v. Clive, 4 M. andS. 13, nor can he set up the drawer's inability, as that he was an infant. Taylor v. Croker, 4 Esp. 187. Evidence under common cmints.'] If the payee is also the drawer, the bill will be evidence under the count for money had and received, Thompson v. Morgan, 3 Campb. 101, or under the count on an account stated ; Per Abbott, C. J., Rhodes v. Gent, 5 B. and A. 245 ;" and it is said to be prima facie evidence of money had and received by the acceptor to the use of the holder ; Bayley " 2 Eng. Com. Law Reps. 338. ' 3 Id. 332 ■" 9 Id. 133. " 2 Id. 173. » 7 Id. 84. 20 154 Assumpsit on Bills of Exchange. on bills, 287, 4.lh ed. ; but this does not appear to be law unless be- tween immediate parties. Bentley v. Nortliouse, 1 M. and M. 66, Wmjnom v. Bend, 1 Caytiph. ITS. An acknowledgment of the debt by the defendant will enable the holder to recover upon the count on an account stated. Highmorc v. Pmnrosc, 5 M. and S. 65. Indorsee against acceptor. In an action by the indorsee against the acceptor, the plaintiff must prove the acceptance (which admits the drawing of the bill, vide supra), and secondly, the indorsements stated in the declara- tion. Indorsement, how pwed.'] None of the indorsements are admit- ted by the acceptance, Smith v. Chester, 1 T. R. 654, and even where the bill is payable to the drawer's order, his handwriting as indorser must be proved, though his name was on the bill at the time of acceptance. Bosanquet ii. Anderson, 6 Esp. 43. So where a bill drawn payable to the drawer's own order, was drawn and indorsed by procuration, by the same person, it was held that the acceptance only admitted the drawing by procuration, and not the indorsement by procuration. Robinson v. Yarroio, 7 Taunt. 455.P But in an action against the acceptor of a bill, drawn in favour of A. and B., and indorsed by A. in the name of A. and B., and after- wards accepted by the defendant, on it being objected that the payees were not partners, and that, therefore, the indorsement was irregular, Lord Ellenborough is said to have held, that after accep- tance, the defendant could not dispute the regularity of the indorse- ment ; Jones v. Radford, 1 Campb. 83 {n), sed quccre, for it is said by Lord Ellenborough, in another case, that though the drawee accept the bill with many names on it, if laid in the declaration, they should be proved. Bosanquet v. Anderson, 6 Esp. 43. Where there was no proof of the handwriting of one of the indorsers, but it appeared that the indorsement was upon the bill when the de- fendant accepted it, and that he promised to 'pay it, Ryder, C J., left the case to the jury, who found for the plaintiff, and the court refused a new trial. Hankey v. Wilson, Say. 223. Baylc.y on bills, 367. And where a bill was shown to the drawer with the name of the payee indorsed upon it, and the drawer merely objected the want of consideration, it was ruled that it did not supersede the ne- cessity of proving the indorser's handwriting. Duncan v. Scott, 1 Campb. lOL An offer made by the acceptor to pay a bill, with certain names on it, is a sufficient admission of the plaintiff's title so as to supersede the necessity of proof of each person's handwrit- ing. Bosanquet v. Anderson, 6 Esp. 45 ; see also Sidford v. Cham- bers, 1 Stark. 326.'' An admission of his handwriting by the in- dorser, though evidence against himself, is not evidence in an action p 2 Eng. Com. Law Reps. 173. i 2 Id. 410. Indorsee against Acceptor. 155 against the acceptor. Hemmings v. Robinson, Barnes, 436. Bayl. on bills, 379, ith ed. ; but see Maddocks v. Hankey, 2 Esp. 647. It must appear that the indorsements were made by the persons by whom they purport to have- been made. See ante, p. 67, as to identity. In an action by an indorsee against the acceptor of a bill of exchange whereof E. S. was the payee, the plaintiffproved, that a person calUng himself E. S. came to C, having in his possession the bill in question, and also a letter of introduction proved to be genuine, which was expressed to be given to a person introduced to the writer as E. S., and also another bill of exchange, drawn by the writer of that letter. The bearer of these documents, after remaining ten days at C, during which time he daily visited the plaintiff, indorsed to him the bill in question and received value for it, and also a letter of credit. This was held to be evidence of the identity of this person with E. S. in the absence of any evi- dence in answer. Bulkeley v. Butler, 2 B. and C. 434.'' What indorsements are good.'\ If the payee has df^*^^^^" ?^^J the bill without indorsement, for a valuable consid*^'^"^'^' ^"^ f^y terwards becomes bankrupt, he may indorse it p*^ withstanding his bankruptcy. Smith v. Pickering, Peake, 50 ^^ "^^ drawer of a bill payable to his own order, and accept'-'i"^ ^^^ accommodation, may indorse it after his bankruptcv, f-/*^ ^^^^s not pass to his as- signees. Wallace v. Hardacre, 1 f"-^P^- ^6. Arden v. Watkins, 3 East, 317. An indorsement bv- feme covert, of a bill payable to her order, in her own name, -^nveys no interest. Barlow v. Bishop, 1 East, 432, unless frorr circumstances the jury can infer an au- thority from her husb'"^*^ *^ ^^er to indorse it in such name, as if he promise to pay th-s bill. Id. 434. Cotes v. Davis, 1 Campb. 485. Infancy being a personal privilege, the acceptor cannot set up the infancy of the indorser as a defence. Taylor- v. Croker, 4 Esp. 187, recog. 2 B. and C. 299 r a7id see Jones v. Darch, 4 Price, 300. On the death of the holder, his executor or administrator may in- dorse. Rawlinson v. Stone, 3 Wils. 1. Unless the persons indors- ing are in partnership, the indorsement of each must be proved ; Carvick v. Vickery, Dougl. 653 (n) ; but if a partnership be proved, an indorsement by one of the partners, in the partnership name, is sufficient, vide supra. On the dissolution of a partnership, a power given to one of the partners to receive and pay debts, does not authorise him to indorse a bill in the name of the partnership. Kilgour V. Finlayson, 1 H. Bl. 155. See Dolman v. Orchard, 2 C. and P. 104.t Lacy v. Woolcot, 2 D. and R. 458." And if one of se- veral partners who have a right to indorse becomes bankrupt and indorses the bill, such an indorsement, though made to a creditor of the firm, will confer no title ; Thomason v. Frere, 10 East, 418 ; see Drayton v. Dayle, 2 B. and C. 293 r but where the partners hold the bill as trustees, and one of them becomes bankrupt, he and the r 9 Eng. Com. Law Reps. 133. '91(1.94. '12 Id. 47. "16 Id. 101. « 9 Id. 91. 156 Assumpsit on Bills of Exchange. rest may indorse. Ramsboitom v. Calor, 1 Stark. 228.» On a bill payable to A., for the use of B., the right to transfer is in A. Evans V. Cramlington, Carth. 5 ; but see Sigourney v. Lloyd, 8 B. and C. 631.^ What indorseynents need be proved.'] If all the indorsements have been stated, though unnecessarily, they must, it seems, be proved; Waynam v. Bend, 1 Campb. 175, Bosanquet v. Anderson^ 6 Esf. 43 ; but where the first indorsement is in blank, the plain- tiflfmay state an indorsement from the payee to himself immedi- ately, though there be intermediate special indorsements, and it will only be necessary to prove the first indorsement. Smith v. Clarke, Peahe, 225. In an action by the indorsees of a bill against the acceptor, the first count stated all the indorsements, the se- cond count an indorsement by the payee to the plaintiff ; Abbott, C J., said, that all the indorsements must be proved or struck out, though not stated in the declaration. " I remember," said his Lordship, ^ m^. Justice Bayley so ruling, and striking them out himself at th.. ^-pj^i . j^^d this need not be done before the trial." Cocks V. Borroauj^^ Chitty, 392, Ith ed. Title of the plaintijj.. ^g indarsees.] When a bill is indorsed in blank, possession is a efficient prima facie title,* and several plaintiffs suing as indorsees .^^(j ^^^ prove that they are in part- nership, or that the bill was inov^^g^j ^q i^^j^ jointly ; Ord v. Por- tal, 3 Campb. 239 ; Rordasnz v. Le^^j^^ j Stark. 446 ;^ and see Ma- chellv. Kinnear, 1 Stark. 499:^ Attwooa. y_ Rattenbury, Q B. Moore^ 579;» but where it is specially indorsed to , firm, the partnership of the plaintiffs must be proved ; 3 Campb. :i40 ; and where the plaintiffs sue in a particular capacity, as assignees of a bankrupt for instance, they must prove that the bills were indorsed to them in that capacity. Bernasconi v. Duke ofArgyle, 3 C. and P. 29." Evidence under the money counts.'] An acceptance is said to be evidence of money had and received by the acceptor to the use of the holder ; Bayley on Bills, 287 ; and it has therefore been sup- posed, that in an action by an indorsee against an acceptor, the bill may be given in evidence under the count for money had and re- ceived. 2 Phil. Ev. 30. But late authorities show that it is only where the bill or note is enforced between immediate parties, that the plaintiff can recover on the count for money had and received. Waynamv. Bend, 1 Campb. 174. Exon v. Russell, 4 M. and S. 507 , Thompson v. Morgan, 3 Campb. 101. Wells v. Girling, Gow, 22,° * 2 Eng. Com. Law Reps. 3G7. » 15 Id. 319. r 2 Id. 463. *2ld. 484. * 17 Id. 61. i* 14 Id. 195. <= 5 Id. 445. * The possession of a bill by an indorsee who had indorsed it over to another, is prima facie evidence that he is the proprietor of the bill, notwithstanding there may be on it one or more indorsements, subsequent to the indorsement to him, without his producing any recital or indorsement back from either of the eubse- quent indorsers. Duganv. U. States, 3 Wheat- 172. Payee against Drawer. 157 3 B. Moore, 79. Bently v. Mrthouse, 1 M. and M. 66. Bales v. Dicker, 1 M. and M. 324. Drawer against Acceptor. When a bill, not payable to the drawer's order, has been disho- noured and taken up by the drawer, the latter may sue the accep- tor, and in such action must prove, 1. The acceptance, {vide ante, p. 152); 2. The presentment to the defendant, and his refusal, which may be done by calling the person who presented the bill, or by proving a promise to pay by the defendant, which dispenses with proof of the presentment; and 3. The payment of the bill by the plaintifT. To prove the latter fact, it is not sufficient to produce the bill with a receipt on the back of it, as from the then holder, for the receipt prima facie imports that the bill was paid by the acceptor. Scholy v. Walshy, Peake, 24. It will not be necessary for the plaintiff, in the first instance, to prove that the defendant had effects of the plaintiff in his hands, the acceptance being suffi- cient prima facie evidence of that fact. Vere v. Leiois, 3 T. R. 183. The bill may be given in evidence under the count for money had and received, where it is payable to the order of the drawer. Thompson v. Morgan, 3 Campb. 101, ante, p. 153. Payee against Drawer. In an action by the payee against the drawer, the plaintiff must prove, 1. The drawing of the bill ; 2, Presentment to the drawee or acceptor ; 3. His default ; 4. Notice to the defendant of the dishonour. The drawing of the bill'] The drawing of the bill must be pro- ved by evidence of the drawer's handwriting, see ante, p. 68 ; or if drawn by an agent, by proving the authority of the agent. If drawn in the name of a partnership, the partnership must be proved, and the handwriting of the partner who drew the bill, see ante, p. 152. Presentment to the drawer or acceptor.'] A presentment for ac- ceptance is not necessary, except in cases of bills payable within a limited time after sight, Bayley on bills, 182 ; but if presented and refused acceptance, notice of such refusal must be given, Goodall V. Dolley, 1 T. R. 712, though the drawer of a bill is not discharged by want of notice of non-acceptance where the bill has passed into the hands of a bona fide indorsee for value, who has no knowledge of the dishonour. Dunn v. O'Keefe, 5 M. and S. 282. Where the bill is payable at a certain date, and not presented for acceptance, 158 Assumpsit on Bilk of Exchange. a presentment for payment on the last day of grace must be prov- ed; Tassel V. Lewis, 1 Ld. Kcnj?n. 743. Bay ley on hills, 198; but where it is payable at a certain time after sight, or at sight, it need only be presented within a reasonable time ; which has been held to be, though the authorities differ on the point, a question for the jury ; Midlman v. D'Eguino, 2 H. Bl. 565, Fry v. Hill, 7 Taunt. 397;'' see the cases Bayl. on hills, 187; or rather a mixed question of law and fact. Shute v. Ruhins, I M. and M. 133. If a bill drawn at three days' sight were put into circulation, and kept out in that way for a year, it would not, as it seems, be laches ; but if the holder were to lock it up for any length of time, it seems he would be guilty of laches. Per Buller, J. Midlman v. D'Eguino, 2 H. Bl. 5G5. Where a bill drawn by the defendant at one month after sight, on London, was delivered to the plaintiff on the 9th, at Wind- sor, and was presented on the 13th, and the jury found a verdict for the plaintiff, the court of C. P. refused to disturb the verdict. Fry V. Hill, 7 Taunt. 397.i A distinction has been taken with respect to bills payable after sight, drawn by bankers in the country on their correspondents in London. " It does not seem unreasonable," says Lord Tenter- den, " to treat bills of this nature as not requiring immediate pre- sentment, but as being retainable by the holders for the purpose of using them within a moderate time (for indefinite delay of course cannot be allowed) as part of the circulating medium of the coun- try. Shute V. Rohins, 1 M. and M. 133. Bills due on a Sunday or Christmas-day ; Tassellv. Lewis, 1 Ld. Raym. 743 ; or on a Good-Friday, 39 and 4 Geo. IIL c. 42 ; or on a fast day, 7 and 8 Geo. IV. c. 15 ; arc to be presented on the day next before those respective days. Presentment must be proved,'although the acceptor has beconrie bankrupt, Russel v. Langstaffe, Dougl. 518, or insolvent, Esdaile V. Soicerhy, 11 East, 117, Rohde v. Proctor, 4 B. and C. 523,« and where he is dead it must be made to his executor or administrator, or if there be none, at the house of the deceased. Molloy, h. 2, c. 10, s. 34. Chitty on hills, 317, 5th ed. If the bill is payable at a par- ticular place, it is not necessary to present it to the executor. Philpot V. Bryant, 3 C. and P. 244.' Where a bill is accepted by an agent, the drawee being abroad, presentment to the agent must be proved. Philips v. Astling, 2 Taunt. 206. A bill payable at a banker's must be presented within banking hours ; Elford v. Teed, 1 M. and S. 28 ; but if presented after, and a servant stationed at the banking-house return for answer, " JVo orders," it is sufficient. Garnett v. Woodcock, 6 M. and S. 44. Henry V. Lee, 2 Chitty, 125.? Presentment at eight in the evening, at the house of a merchant, is good. Barclay v. Bailey, 2 Campb. 527. i 2 Eng. Com, Law Reps. 132. ^ 10 Id. 379. f 14 Id. 288. el8 Id. 273. Payee against Drawer. 159 Presentment to a banker's clerk at the clearing-house, is a pre- sentment at the banker's. Reynolds v. Chettle, 2 Campb. 595. If a bill or note is made payable at a particnlar house, that house is the proper place at which to make the presentment, whether such house be mentioned in the body of the bill or note, or in a marginal note only, or in the acceptance only. Bayley on bills, 174, citing Ambrose v. Hopwood, 2 Taunt. 61, Garnett v. Woodcock, 1 Stark. 475.'' Although since the stat. 1 and 2 Geo. IV., c. 78, the holder of a bill accepted payable at a banker's (not saying, and not otherwise, &c.) is not obliged, in order to charge the acceptor, to present it for payment there, .Turner v. Hayden, 4 B. and C. 2.' Bayley on bills, 178, yet a presentment there, and refusal, with notice, will it seems be sufficient to charge the drawer. See Mackintosh v. HayHon, R. and M. 363. Presentment, proof of , when dispensed icith.'] Payment of part of the money due upon a bill or note, or a subsequent promise to pay, with knowledge that the bill has not been duly presented, will be evidence of presentment under the usual averment. Taylor v. Jones, 2 Campb. 106. Lundie v. Robertson, 1 East, 231. So una- voidable accident will excuse a regular presentment. " Duly pre- sented, is presented according to the custom of merchants, which necessarily implies an exception in favour of those unavoidable accidents which must prevent the party from doing it within the regular time." Per Ld. Ellenborough, Patience v. Townley, 2 Sniith, 224. The mere knowledge on the part of the drawer or indorser of a bill, that the bill when presented is likely to be dis- honoured, will not dispense with the presentment. Prideaux v. Collier, 2 Stark. 57."^ Default of drawee or acceptor.'] If the action is brought on a refusal to accept, it is sufficient for the plaintiff to show that the drawee refused to accept it generally, or according to the terms of the bill. Bohem v. Garcias, 1 Campb. 425 (ii). It is not sufficient to show that the bill was presented to some person on the drawee's premises who refused to accept it, wdthout connecting that person with the drawee. Cheek v. Royer, 5 Esp. 175. The refusal to accept, or pay, may be proved by the person who presented the bill for acceptance or payment. Notice of d/ishonour.'] There is no prescribed form of notice, but a mere demand of payment, without notice of the dishonour, is not sufficient. Hartley v. Case, 4 B. and C. 339 ;' see Marges- son V. Noble, 2 Chitty^s R. 364. ■" A written notice is not required. Crosse v. Smith, 1 M. and S. 545. Notice to the drawers, by send- ing to their counting-house during the hours of business on two »■ 2 Eng.Coin. Law Reps. 473. * 10 Id. 259. " 3 Id. 242. ' 10 Id. 350. » 18 Id. 368. 160 Assumpsit on Bills of Exchange. successive days, knocking there, and making noise sufficient to be heard by persons within, and waiting there several minutes, the inner door of the counting-house being locked, is sufficient, without leaving a notice in writing, or sending by the post, though some of the drawers live at a small distance from the place. Ibid. By whom given.'] It is sufficient if the defendant has had notice of the dishonour of the bill, from any person who is party to it, Jameson v. Swinton, 2 Cam ph. 373, Wilson v. Swahey, 1 Stark. 34," Rosher v. Kiernan, 4 Camph. 87, Gunson v. Metz, 1 B. and C. 192,° though it was formerly thought that the notice must come from the holder ; Tindall v. Brown, 1 7\ R, 1G7 ; but notice given by a person not party to the bill, without any authority, is not sufficient, Stewart v. Kennett, 2 Campb. 177. To whom notice should be given.] Where the holder of a bill is desirous of suing all the parties to it, he should give notice to all, for if he only gives notice to his immediate indorsers, &c., it is pos- sible that such notice may not be regularly transmitted to the prior parties who may consequently be discharged. But if he give notice to his immediate indorser, and he, in due time, to his indorser, and so on to the drawer, the holder may sue all or any of such parties, and it is no objection in such case that there was no notice imme- diately from the plaintiff to the defendant. Bayley on bills, 209. Rose. Dig. Bills, 198. The bankruptcy of the drawer does not dispense with proof of notice. Where notice was given to a bank- rupt drawer, before the appointment of assignees, it was held suffi- cient. Ex parte Moline, 19 Ves. 216. Where the drawer had become bankrupt and absconded, but his house remained open in the possession of the messenger, and no notice was given to the drawer, or left at his house, or given to the assignees, the drawer's estate was held to be discharged. Rohde v. Procter, 4 B. and C. 517.P Where the drawer is dead, notice should be given to his executors or administrators. Chitty on hills, 295, 5th ed. Where the drawers are in partnership, a notice to one is a notice to all ; and, therefore, where a bill is drawn by a firm upon one of that firm, and dishonoured, notice of the dishonour need not be given to the firm. Porthouse v. Parker, 1 Cam'pb. 82. Where the indorser of a dishonoured bill was abroad in Jamaica, but had a house in England, and notice was sent to his house, and the bill was shown to his wife who was informed of the non-payment. Lord Kenyon held it sufficient. Cromwell v. Hynson, 2 Esp. 511. Where a substituted bill has been given and dishonoured, and the plaintiff sues on the first bill, he need only prove the dishonour, and not notice of the dishonour of the substituted bill. Bishop v. Roive, 3 M. and S. 362. Notice of the drawer's attorney is not sufficient. Cross V. Smith, 1 M. and S. 554. " 2 Eng. Com. Law Reps. 283. » 8 Id. 38. p 10 Id. 397. Payee against Drawer. 161 Time within which notice must he given.) The geii^ral rule with regard to inland bills is, that where the parties do not reside in the same town, it is sufficient to send notice by the post of the day following that on which the party receives inteliigencc of the dishonour. IVilliams v. Smith, 2 B. and A. 497. Where there is a post on the day on which the party who is to forward it receives the notice, and no post on the following day, it is sufficient to for- ward the notice by the post of the third day. Geillv. Jeremy, 1 M. and M. Gl. If the parties reside in the same town, notice must be given before the expiration of the day after that on which it has been received. Smith v. Midlett, 2 Campb. 208. Where the party receives notice on a Sunday, Good Friday, or Christmas-day, he is in the same situation as if it did not reach him till the next day. Bray v. Hadiccn, 5 M and S. 68, Bayl. on bills, 220, 221, 4th ed. And where a bill is payable, either by 39 and 40 Geo. III. c. 42 (ante, p. 158,) or otherwise on the day preceding Christmas-day, Good I' riday, Thanksgiving-day, or Fast-day, it is not necessary for the holder to give notice until the day next after such Christmas- day, &c. 7 and 8 Geo. IV. c. 15. A Jew is not obliged to forward notice on the day of a grand Jewish religious festival. Lindo v. Unsworth, 2 Campb. 602. If the holder place the bill in the hands of his banker, the latter is only bound to give notice to his custom- er in like manner as if he were himself the holder, and the cus- tomer has the same time to communicate the notice as if he had received it from the holder. Haynes v. Berks, 3 B. arid P. 599. Bay ley on bills, 222. Langdale v. Trimmer, 15 East, 291. Where laches is once incurred, the drawer is discharged, though he receive notice at the time within which, had each person regularly trans- mitted notice to another, he would have received it. Turner v. Leach, 4 B. and A. 451,1 Marsh v. Maxwell 2 Campb. 210 (n). A notice on the day on which the bill becomes due is not too soon ; for though payment may still be made within the day, non- payment on presentment is a dishonour. Burridge v. Manners, 3 Campb. 193, unless the acceptor afterwards, and on the same day, pays the bill. Hartley v. Case, 1 Carr. and P. 556. Delivery of notice, proof of. '\ It is sufficient proof of the delivery of the notice, to show that it was sent in a letter by the post, with- out proving that the letter was received, Saunderson v. Judge, 2 H. B. 509, and in London, by the two-penny post, Scott v. Lijvrd, 9 East, 347, provided the delivery be on the day on which notice should be given. Smith v. Mullett, 2 Campb. 208. If a note is sent by post, the direction of the letter must not be too general, as "Mr. Haynes, Bristol;" Walter v. Haynes, R. and M. 149; but where the bill was dated " xVlanchester," Abbott, C. J., held that it was 4 6 Eng. Com. L&w Reps. 4S4. 21 162 Assumpsit on Bills of Exchange. sufficient to direct a letter to the drawer at " Manchester," gener- ally. Ma7in V. Moors, R. and M. 249. Where, to prove the send- ing of a notice by post, the plaintiff's clerk was called, who stated that a letter containing the notice was sent by post on a Thursday morning, but he had no recollection whether it was put in by him- sclt' or another clerk, it was held that this was not sufficient evi- dence of the putting into the post. Thnrkes v. Salter, 4 Blvgh. 715.' It is not essential that notice should be sent by the post, a private conveyance is sufficient. Bancroft v. Hall, Holt, 476.' If there is no post, the notice may be sent by the ordinary mode of convey- ance, as in case of a foreign bill, by the first regular ship bound for the place where notice is to be given. Midlman v. D^Eguino, 2 H. B. 505. In proving a notice sent by post, it was ruled by Lord El- lenborough not to be sufficient to show that it was contained in a letter, which letter was put upon a table for the purpose of being carried to the post, and that, in the course of business, all letters deposited on that table were carried to the post; but perhaps it might have been sufficient had the person who was in the habit of carrying the letters to the post been called, and stated that he in- variably carried all such letters to the post. Hetherington v. Kemp, 4 Campb. 193. Proof that the notice was left with a person at the house where the defendant lodged, and that the next morning the notice was thrown into the plaintiff's house by a person unknown, is sufficient. Stedman v. Gcoch, 1 Esp. 5. Contents of notice, how proved.'] Where a written notice has been given, but no duplicate or copy kept, it is not requisite to give a notice to produce the notice 'of dishonour. Le Blanc, J. admitted parol evidence of the contents, without a notice to produce, and the court refused a new trial. Ackland v. Pearce, 2 Campb. 601, liine V. Beaumont, 3 B. and B. 288,* 7 B. Moore, 112, S. C. Colling v. Treweek, 6 B. and C. 394;" but see Langdon v. Hulls, 5 Esp. 156, Shaw V. Markham, Peake, 105. And where a duplicate original or copy of the notice has been kept, it is good evidence, without a notice to produce ; Kine v. Beaitmont, 3 B. and B. 288 ;* and proof that duplicate notices of dishonour were written, and that a letter (the witness could not state the contents) was sent on the same day by the plaintiff to the defendant, is sufficient, a notice to produce the letter having been served. Roberts v. Bradshaw, 1 Stark. 28 ',^ see 3 B. and B. 290.* But where, in an action against the indorser of a bill, it became necessary to prove that notice of the dishonour of other bills had been given to the defendant, for which purpose examined copies of letters containing such notices were offered, Abbott, C. J., ruled that a notice to produce such letters was necessary, and that the case did not fail within the exception of ' 15 Eng. Com. Law Reps. 125. • 3 Id. 160. ' 7 Id. 440. • 13 Id. 208. » 2 Id. 281. Payee against Draiver. 163 bills produced, and the subject-matter of the action where no no- tice is necessary. Lanauze v. Palmer, 1 M. and M. 31. Protest.'] In case of a foreign bill, notice without a protest is not sufficient, unless the party to whom notice is given resides in this country. Robins v. Gibson, 1 M. and S. 2S8, though he should hap- pen at (he time of the dishonour to be absent. Cromicell v. Hynson, 2 Esp. 511. In case of an inland bill, a protest is of no effect. Windle v. Andrews, 2 B. and A. 69G. The production of the in- strument, when made abroad, is sufficient proof of the protest. Anon. 12. Mod. 345. A protest made in England must, it is said, be proved by the notary who made it, and by the subscribing witness, if any. Chitty on bills, 405, Itli. ed. The presentment of a foreign bill in this country must be proved as if it were an inland bill, and the protest is not evidence of it. Chesmer v. Noyes, 4 Campb. 129. JVotice, token proof of, excused.'] The plaintiff" will not be obliged to give evidence of notice to the drawer, where the latter has no effects in the hands of the drawee or acceptor, or where the drawer has, with a knowledge of the dishonour, acknowledged his liability, or vi'here the plaintiff has been unable to discover the residence of the drawer, so as to give him notice. See post. Notice excused, no effects.] Proof that the drawer had no effects, nor any ground to expect any in the hands of the drawee, from the time the bill was drawn until it became payable, and that he had no other valid foundation to expect payment by the drawee, is sufficient, at least prima facie, to show that the drawer would be entitled to bring no action on paying the bill, and has, therefore, no right to insist on the want of notice, Bayley on bills, 238, citing Rogers v. Stephens, 2 R. T. 713, Bickerdihe v. Bollman, 1 T. R. 405, Legge v. Thorpe, 12 East, 171, or in case of a foreign bill, of protest. Legge v. TJiorpe, 2 Campb. 310, 12 East, 171. If the drawer had effects on the way to the drawee, notice must be proved. Rucker v. Hiller, 3 Campb. 217, 16 East, 43, 12 East, 1 75. So if the drawer had effects in the drawee's hands, at the time when the bill was drawn, he is entitled to notice, though at the time the bill was presented for acceptance, and thence until presentment for payment, he had not any. Orr v. Ma- ginnis, 7 East, 359. So, though there were no effects at the time the bill was drawn or accepted, if there were when it became due ; the whole period must be looked to, from the drawing of the bill till it b due, and notice is requisite if the drawee has effects at any time during that interval. Hammond v. Diifresne, 3 Campb. 145. Thack- rayv. Blackett, 3 Campb. 164. So if the drawer has effects in the hands of the drawee, though he is indebted to the drawee greatly 164 .Assumpsit on Bills of Exchange. beyond that amount. Blacken v. Doren, 2 Campb. 503. So where the drawer has effects in the hands of the drawee, though to less amount than the bill. Thachraij v. BI((cJxett,3 Campb. 164; but see Smith V. Thatcher, 4 B. and ./I. 200.^'' So where there is a running account between the drawer and drawee, and a Huctuating balance between them, and the drawer has reasonable grounds to expect that he shall have etrects in the drawee's hands when the bill be- comes due, per Ld. EUcnborough, Brown v. Maffei/, 15 East, 221 ; or where the bill is drawn in the fair and reasonable expectation that in the ordinary course of mercantile transactions it would be accept- ed or paid ; per Le Blanc, J., Claridge v. Dalton, 4 M. and S. 231 ; and see Fra.vce v. Lucy, R. and M. 342 ; or where the acceptor has received from the drawer his acceptances, upon which he has raised money, and some of which are outstanding, Spooner v. Gar- diner, R. aiid M 84, notice must be proved ; and in general where the drawer would have any remedy over against a third person, as in the case of a bill drawn for the accommodation of an indorsee, no- tice must be given to the drawer ; Cory v. Scott, 3 B. and A. 623.* Mrton V. Pickering, 8 B. and C. 610;'' or where the drawer has reasonable grounds to expect that the acceptor, or some one else, will pay the bill, though there are no assets in the acceptor's hands. Slatter v. Lafitte, 6 Bingh. 623.^ Where the drawer of a bill makes it payable at his own house, a jury may infer that it is an accommodation bill. Sharp v. Bailey, 9 B. and C 44." Notice, proof of, excused, on acknowledgment of liability, <^c.] An acknowledgment byihe drawer, who has become bankrupt, made after his bankruptcy, that the bill would not be paid, will supersede the proof of notice. Brett v. Levett, 13 East, 213. So a letter from the drawer of an accommodation bill, stating that it would be paid before next term. Wood v. Bron-n, 1 Stark. 217 ;" so a promise, after dishonour of the bill, to pay if the holder would call again, Lundie v. Robertson, 7 East, 231 ; so where the drawerof a foreign bill, on being told it was dishonoured, says that his affiiirs are at that moment deranged, but that he would be glad to pay it as soon as his accounts with his agent are cleared, this admission will dispense with proof of a protest. Gibbon v. Coggan, 2 Campb. 188 ; and see Greemcay v. l[indlei/,4:Campb. 52, S. P. Where the plain- tiff gave in evidence an agreement made between a prior indorser and' the defendant (the drawer), after the bill became due, re- citing that the defendant had drawn, amongst others, the bill in question ; that it was over due, and ought to be in the hands of the prior indorser, and that it was agreed that the latter should w 6 Eng. Com. Law Reps. 400. *5ld. 401. t 15 Id. 314. « 19 Id. 181. • 17 Id. 329. " 2 Id. 363. Payee against Drawer. 165 take the money due to him upon the bill by instalments, this agree- ment was held to dispense with notice of dishonour. Gunson v. Metz, 1 B. and C. 193.'= A payment or promise, without notice of the default, does not dispense with proof of notice. Goodall v. Dol- ley, 1 T. R. 712. Baijleyon Bills, 236. Where the drawer, being a foreigner, on being asked to pay the bill, said, " I am not ac- quainted with your laws, if I am bound to pay it, I will," this was held not to dispense with notice. Dennis v. Mortice, 3 Esp. 158, nor will a mere offer to compromise. Cuming v. French, 2 Campb. lOG (n). The whole of the defendant's admission must be taken together ; and therefore, where he said, " I do not mean to insist upon want of notice, but I am only bound to pay you 70/.," Abbott, C. J., ruled that the plaintiff could only recover 70/., though the bill was- for 200/. Fletcher v. Froggat, 2 C. and P. 570.* Where the drawer, before the bill became due, stated to the holder that he had no regular residence, but would call and inquire whether the bill would be paid, Lord EUenborough held that proof of notice was unnecessary. Phipson v. Kneller, 4 Campb. 285 ; see also Hill V. Heap, D. and R., JV. P. C. 57.-= The accidental destruction of a bill will not excuse the want of notice. Thackray v. Blachett, 3 Campb. 164. JVotice dispensed loith by ignorance ofdraicer^s residenceJ] The want of due notice is answered by showing the holder's ignorance of the place of residence of the party whom he sues; and whether he used due diligence to find the place of residence, is a qiiestion for the jury. Baieman v. Joseph, 12 East, 433 ; and see Baldwin v. Richardson, 1 B. and C. 245.*' Thus, to excuse notice of the dis- honour to an indorser, it is not enough to show that inquiries as to his residence were made at the place at which the bill was pay- able. Beveridge v. Burgis, 3 Campb. 262. Calling on the last in- dorser, and last but one, the day after the bill becomes due, to know where the drawer lives, and on his not being in the way, cal- ling again the next day, and then giving the drawer notice, may be sufficient. Broioning v. Kinnear, Goio, 81.^ Inquiry should be made of some of the other parties to the bill or note, and of persons of the same name. Bayley on bills, 229, citing Beveridge v. Bur- gis, 3 Campb. 262. In one case it was held sufficient, on the dis- honour of a promissory note, to make inquiry at the drawer's for the residence of the payee. Sturges v. Derrick, Wight 76. An attorney employed to discover the residence of a party to a bill, and discovering it, has, like a banker, a day to consult his em- ployer, and it is sufficient if he forward the information to him on the next day. Firth v. Thrush, 8 B. and C. 387." Where the holder is excused by special circumstances from giving notice • 8 Eng. Com. Law Reps. 56. as obtained by force, fraud, &c. ; Reynolds V. Chettle, 2 Campb. 510 ; King v. Nelson, 2 Cajnpb. 5 ; and where notice has been given, and the plaintiff's counsel is apprised, by the cross-examination, that the consideration is disputed, it was for- merly ruled that he m.ust give his evidence in support of the bill in the first instance, and not in reply; Spooner v. Gardiner, R. and M. 86 ; but this practice has been since altered, and agrees with that of the King's Bench. Ibid. 255 (n). Chiity, 40], 7th ed. ante, p. 132. In an action by the indorsee against the acceptor of a bill, if the defendant shows that there was originally no consideration for the bill, that throws it on the other party to show that he gave value for it. Thomas v. Newton, 2 C. a7id P. 006." Want of consideration, defence between icliat parties.] The want of consideration in toto, or in part, cannot be insisted upon if the plaintiff, or any intermediate party between him and the defendant, took the bill or note, bona fide, and upon a valid consideration, Morris v. Lee, Bayl. on bills, 397, and an indorsee for value may * 12 Eng. Com. Law Reps. 285. 168 Assumpsit on Bills of Exchange. recover against the acceptor of an accommodation bill though he knew it to bo such. Smith v. Knox, 3 Esp. 40. Charles v. Marsden, 1 Taunt. 2"3i. Between immediate parties, as the drawer and ac- ceptor, drawer and payee, indorsee and his immediate indorser, want of consideration may be insisted on. Chitty on bills, 91, 5th ed. Want of consideration, ichat, a defence.'] A total failure of con- sideration, is a total bar, inadequacy, or a partial failure, a ht\r pro tanto only ; Baijt. on bills, 344, 4th ed. ; and the defendant may pay part into court, and for the rest insist on want of consideration. Barker v. Backhouse, Peake, 61. Wiffen v. Roberts, I Esp. 261. But a partial failure of consideration will constitute no defence, if the quantum to be deducted is matter not of definite computation but of unliquidated damages; Baijl. on bills, 395; thus where a bill is given for goods, it is no defence that the price is exorbitant; Solomon v. Turner, 1 Stark. 51 ; or that the goods were damaged; Morgan v. Richardson, 1 Campb. 40 {n.) Obbard v. Betham, 1 M. and J\I. J\ISS. But the defendant may give evidence of fraud so as to avoid the contract altogether. Lewis v. Cosgrave,2 Taunt. 2 Solomon v. Turner, 1 Stark.^ 52. Want of consideration — declarations of former holder when ad- missible.] In general, the declarations of the former holder of a bill are not admissible to prove the want of consideration. Shaw V. Broom, 4 D. and R. 730.™ Smith v. De Wruitz, R. and M. 212. Barough v. White, 4 B. and C. 325." But where the title of the plaintitT, and of the party whose declarations are offered in evi- dence, is identified, as where the plaintiff took the bill from him after it became due, such declarations are admissible. Benson v. Marshal, cited 4 D. and R. 732." Illegality of consideration, a defence between ichat parties .] In general this objection is confined to persons, parties, or privies to the illegality, and those to whom they have passed the bill without value; Bayl. on bills, 410, 4th ed. and a bond fide indorsee for value, without notice of the illegality, may recover on such bill. Wyatt V. Buhner, 2 Esp. 538. But where the bill is given for money lost by gaming, or by betting on the side of persons gaming, or knowingly lent for gaming, the contract is a oid by stat. 9 Anne, c. 14, sec. 1, and no one can recover on such a bill against the person losing, but the indorsee may recover against the other parties to the bill ; Edwards v. Dick, 4 B. and A. 212 ;p and by stat. 58 Geo. III. c. 93, an indorsee for value and without notice, of a bill given for an usurious consideration, may sue upon such bill. Where a statute prohibits a thing to be done, and does not expressly avoid the securities, which fall within the prohibition, then, if the violation of the law does not appear on the face of the instrument, and thb 1 2 Eng. Com. Law Rops. 291. " 18 Id. 420. • 10 Id. S45. • 18 Id. 221. P 6 Id. 405. Defence. 169 party taking it is ignorant that it was made in contravention of the statute, it is an available security in the hands of such persons. Per Holroyd, J., Broughton v. Manchester Water Worlds, 3 B. and A. 10." Before the 58th Geo. III. c. 93, the indorsement of a bill for an usurious consideration prevented a subsequent bona fide indorsee from recovering on the bill, if he claimed through such indorsement. Lowes V. Maxxaredo, 1 Stark. 385.'" Chapman v. Black, 2 B. and A. 599. But since that statute, such an indorsee on proving that he gave a valuable consideration for the bill, may recover upon it. fVyatt V. Campbell, Chitti/s Stat. 121 (w), 1 M. and M. 80, S. C. Illegality of considerations goitig to part only.'] If part of the consideration is illegal, the bill cannot be put in suit; Scott v. Gil- more, 3 Tau7it. 226; Bayl. on bills, 406, 4th ed. ; but if part of the consideration is good, the plaintiff may recover on that, though not on the bill. Robinson v. Bland, 2 Burr. 1077. Illegality of eonsideration — substituted bills.'] If a new bil) is substituted for one which was given upon an illegal consideration, it will be subject to the same objections as the original bill, unless it is reformed so as to exclude what made it illegal; though the new bill is given to an indorsee who took the first security inno- cently and for value, especially if he was apprised of the illegality in the first bill. Chapman v. Black, 2 B. and A. 588, Bayley on bills, 407. But where a bond or note is void, on account of its be- ing a security for usurious interest, a subsequent security for no more than the principal and legal interest is binding. Per Holroyd, J., Preston v. Jackson, 2 Stark. 238.^ Barnes v. Headley, 2 Taunt. 184. Wicks V. Gogerly, R. and M. 123. If a bill or note is given in part upon an illegal consideration, and several bills or notes are afterwards substituted in lieu thereof, the effect of the illegality may be confined to only some of the substituted bills or notes, and the others stand exempt. Thus, where a bill or note is given as to half for a gaming debt, and, as to the residue, for money lent, and two bills or notes of equal amount, are afterwards substituted for it, if the giver does any thing which may be considered an election to ascribe the gaming debt to the one, he will be liable upon the other. Habner v. Richardson, Bayley on bills, 409. In an action by the indorsee against the maker of a promissory note, letters from the payee to the maker, contemporaneous with the making of the note, are evidence to prove usury in the concoc- tion of the note. Kent v. Loicen, 1 Campb. 177, 180, d; see 1 Bai^n. and Adolp. 89. Satisfaction.] The acceptor may prove in bar of the action, that the holder has received satisfaction from the drawer, provided 1 5 Eng. Com. Law Reps. 215, ' 2 Id. 4S8. • 3 Id. 332. 22 170 Assumpsit on Bills of Exchange. the drawer be not also the payee ; Beck v. Robley, 1 H. Bl 89 {n) ; but if the drawer be also the payee, he may after taking up the bill rc-issue it, and the acceptor will be liable to the indorsee. Calhnr v. Lau-rcncc, 3 M. and S. 95. It seems that twenty years will not afford a presumption that a bill, or note, has been satisfied, where the statute of limitations is not pleaded. Du Belloix v. Lord Watciyarh, 1 D. and R. 17;* see ante, p. 14. A judgment against a subsequent party to a bill will not discharge a prior party, it is only an extinguishment between the parties to the judgment ; BaijI. on hills, 2G7, 4th ed. Hayling v. Mulhall, 2 W. Bl. 1235, En- glish V. Barley, 2 B. and P. 62 ; so the holder may sue the drawer after taking the acceptor in execution. Ihid. Macdonald v. Bov- ington, 4 T. R. 825. A composition with the acceptor, and the taking a third person's note as a security for the composition money, operate as a satisfaction of the bill. Lewis v. Jones, 4 B. ajid C. 513." If a hill is renewed by the acceptor on the terms of his paying the costs of an action brought upon it, and these costs are not paid, the holder of the bill may sue the acceptor, though the second bill is outstanding in the hands of an indorsee. JVorris v. Aylett, 2 Cajnph. 329. But taking a new bill from the acceptor, the original bill to be kept as a security, operates as an agreement that, in the meantime, the original bill shall not be enforced. Per Lord ElleU' borough, Gould v. Rohson, 8 East, 580 ; see Dillon v. Rimmer, 1 Bingh. 100.^ But where one of three partners, after a dissolution of partnership, undertook, by deed, to pay a particular partnership debt on two bills of exchange, which was communicated to the holder, who consented to take the separate notes of the one partner for the amount, strictly reserving his right against all three, and retaining possession of the original bills, it was held that the sepa- rate notes having proved unproductive, he might resort to his rem- edy against the other partners, and that the taking the separate notes, and afterwrds renewing them several times successively, did not amount to satisfaction of the joint debt. Bedford v. Deahin, 2 B. and A. 210. So where on a bill of exchange being dishonoured, the acceptor transmitted a new bill for a larger amount to the payee, but had not any communication with him respecting the first, and the payee discounted the second bill with the holder of the first, which he received back as part of the amount, and afterwards, for a valuable consideration, indorsed it to the plaintiff, it was held that the second bill icas merely collateral security, and that the receipt of it by the payee, did not amount to giving time to the acceptor of the first bill so as to exonerate the drawer. Bring v. Clarkson, I B. and C. 14 ;* see also Featherstone v. Hunt, 1 B. and C. 113.=' Satisfaction as to one of several partners is a satisfaction as to all. Jacaud v. French, 12 East, 317. • 16 Eng. Cora. Law Reps. 12. " 10 Id. 393. v g jd. 263. ^ s Id. 10. ' 8 Id. 34. Defence. 171 Release and waiver^ A release to a subsequent party will not discharge a prior party to the bill. Carstairs v. Rolleston, 1 Marsh. 207, 5 Taunt. 551/ S. C. Smith v. Knox, 3 Esp. 47. An agree- ment to consider an acceptance " at an end ;" Walpole v. Pulteney, cited Dougl. 236 ; or a message to the acceptor of an accommoda- tion bill, that the business was settled with the drawer, and he need give himself no further trouble, is an express waiver, and a good defence in an action against the acceptor ; Black v. Peek, cited Dougl. 236 ; but a declaration by the holder, that he should look to the drawer for payment, and that he wanted no more of the ac- ceptor than another debt not connected with the bill, will not be sufficient to discharge the acceptor ; Parker v. Leigh, 2 Stark. 228 ;'' and, if the holder receives part of the money from the draw- er, and takes a promise from him upon the back of the bill for the payment of the residue at an enlarged time, it is for a jury to say whether this is not a waiver of the acceptance ; Ellis v. Galindo, cited Dougl. 250, Bayl. on bills, 165, 4th ed. ; but see Dingwall v. Dunster, Dougl. 235 ; where it was held, that nothing but an ex- press declaration by the holder will discharge the acceptor. See also Parker v. Leigh, 2 Stark. 228.' Adams v. Gregg, 2 Stark. 531." Farquhar v. Souihey, 1 M.and M. 14. Giving time.'] Giving time to a principal discharges a surety, and therefore the giving time to the acceptor discharges the draw- er and indorsers. English v. Darley, 2 B. and P. 61. Thus if the holder takes another bill from the acceptor at a short date, and agrees to keep the original bill in his hands as a security, it is a dis- charge to the indorsers. Gould v. Robson, 8 East, 570 ; ante, p. and see the other cases there cited. But a conditional agreement to give time to the acceptor, on his paying part, which condition is not performed by the acceptor, is not a discharge to the indorsers. Badnallv. Samuel, 3 Price, 521. An assent by the drawer or in- dorser to the giving time; Clarke v. Devlin, 3 B. and P. 363 ; see Withall V. Masterman, 2 Campb. 178 ; or a promise to pay the bill with a knowledge'of time having been given ; Stevens v. Lynch, 12 East, 38 ; will prevent the giving time from operating as a dis- charge. Forbearance to sue the acceptor will not of itself be a dis- charge. Walwyn v. St. Quintin, 1 B. and P. 652. Eriglish v. Dar- ley, 2 B. and P. 62, 3 Price, 533. Taking a cognovit from the ac- ceptor by which the time of obtaining judgment against him is not deferred, does not seem to be such a giving of time as will discharge the drawer. Jay v. Warren, 1 Carr. and P. 532," Lee v. Levi, 4 B. andC. 390,-= 5 Taunt. 319." The taking a warrant of attorney from the acceptor, after action brought against the indorser, cannot be given in evidence under the general issue in the latter action, being matter of defence, arising after action brought. Lee v. Levi, 4 B. and C. 320.« y 1 Eng. Com. Law Rep». 184. ' 3 Id. 227. » 31(1 401. » 1 1 Id. 460. « 10 Id. 364. -1 1 Id. 119. 172 Assumpsit on Bills of Exchange. Where a bill was accepted for the accommodation of the drawer, and the holder knowing that circumstance gave time to i\\Q draioer. Lord Ellenborough held the acceptor discharged; Laxton v. Peat, 2 Campb. 185 ; CoIIott v. Ilaigh, S Campb. 281 ; but this case has been frequently doubted. Raggett v. Axmore, 4 Taunt. 730, Fcn- tum V. Pocock, 5 Taunt. 192,' Kerrison v. Cooke, 3 Campb. 362 ; hut see Adams v. Gregg, 2 Stark. 531,'' see also Hill v. Read, D. and /?., JV. P. C. 2G.5 But where time was given to the accommoda- tion acceptor, Lord Ellenborough ruled that the drawer was not discharged. Collolt v. Haigh, 3 Campb. 281. So where the accep- tor is the agent of the drawer, the latter wall not be discharged by time given to the former. Clarke v. Noel, 3 Campb. 411. Competency of Witnesses. Drawer.'] In an action against the acceptor, the drawer is in ge- neral a competent witness, either for the plaintifior for the defen- dant ; for, if the plaintiff recovers, the drawer pays the bill by the hands of the acceptor; if the plaintiff fails, the drawer is liable to pay the bill himself Bayl on bills, 419. Thus, he may be called by the plaintiff to prove the defendant's handwriting ; Dickinson V. Prentice, 4 Esp. 32 ; or by the defendant to prove that the plain- tiff discounted the bill on an usurious consideration; Brard \i. Ac- kerman, 4 Esp. 119; Rich v. Topping, Peake, 224, 1 Esp. 177, 5. C. Batjley on bills, 420 ; or that the bill has been paid ; Humphrey V. Moxon, Peake, 52 ; see also Williams v. Keats, Mann. Index, 328 ; and it is no objection that he is a prisoner on a charge of having forged the bill. Barber v. Gingell, 3 Esp. 62. But where the ac- ceptor has accepted the bill for the accommodation of the drawer (the witness), the latter is not a competent witness for the defen- dant, for, if the plaintiff should fail, the witness would be discharged from his liability to indemnify the defendant against the costs of the action on the bill. Jones v. Brooke, 4 Taunt. 464. Hardwick v. Blanchard, Gow, US."* Where the witness has become bankrupt, and the costs are proveable under the commission, and he has ob- tained his certificate, he is then admissible. Brind v. Bacon, 5 Taunt. 183.' Moody v. King, 2 B. and C. 558." Where a bill has been drawn by one partner, in fraud of the rest, to pay a separate creditor, a copartner is a competent witness for the acceptor in an action against him by the creditor to prove the want of au-thority. Ridley v. Taylor, 13 East, 176. Where the defence was a gaming consideration, the drawer was called by the defendant. It was objected, that he was interested to defend the plaintiff, being liable for treble penalties if he recovered, but not if he failed. It was held, that the witness was competent, since if the plaintiff failed, fhe witness was liable to him ; if he succeeded, the witness might deliver himself from the penalties • 1 Eng.Com. Law Reps. 72. '3 Id. 461. « 16 Id. 418. »■ 5 Id. 480. » 1 Id. 68. " 9 Id. 177. Competency of Witnesses. 173 by refunding within the time. Habner v. Richardson, Holroyd, J. 1818, Manning's Index, 327. Indarser.] In an action by indorsee against drawer or accept- tor, the indorser is ii\ general a competent witness, either for plain- tiff or defendant; for the plaintiff, because though the plaintiff's succeeding in the action 7nay prevent him from calling for pay- ment from the indorser, it is not certain that it will, and whatever part of the bill or note the indorser is compelled to pay, he may recover again from the drawer or acceptor ; — for the defendant, because if plaintiff Aiils against drawer or acceptor, he is driven either to sue the indorser, or to abandon his claim. Bayl on bills, 422. For the plaintiff he may be called to prove his own indorse- ment, Richardson v. Allen, 2 Stark. 334.i or upon a bill drawn for his own accommodation, that the plaintiff, the indorsee, gave him value for it, Shuttleicorth v. Stephens, 1 Campb. 408, or that the de- fendant promised to pay the bill after it became due. Stevens v. Lynch, 2 Campb. 332. For the defendant the indorser may be called to prove that he had paid the bill, Charrington v. Milner, Peaks, 6, Birt v. Kershaw, 2 East, 458, or that an unstamped bill, dated abroad, was in fact made here. Jordaine v. Lashbrooke, 7 T. R. 601. In an action by indorsee against acceptor, the indorser, though released by the defendant, was held incompetent to prove that he delivered the bill to the plaintiff merely for the purpose of procuring payment as agent for the witness. Buckland v. Tankard, 5 T. R. 578. But this decision has been doubted. Birt v. Kershaw, 2 East, 451. 1 Phill. Ev. 63, 6th ed. Drawee or acceptor.] The acceptor is a competent witness for the plaintiff, to prove thatJie had no effects of the drawer, the de- fendant, in his hands, Staples v. Okines, 1 Esp. 332 ; for though the plain tifl" recovers, the witness remains liable to the defendant. So the drawee may be called to prove the same fact. Legge v. Thorpe, 2 Campb. 310. In an action against a drawer, it has been held that the acceptor is not a competent witness for the defendant, to prove a set-off, on the ground that he is answerable to the drawer only to the amount which the plaintiff recovers against the defend- ant, Mainivaring v. Mytton, 1 Stark. 83,™ sed queer e; for it seems that the dravi^er would be entitled to call upon the acceptor for the full amount of the bill. Bayl. on bills, 424. It seems that a state- ment by the drawee, as to the drawer, the defendant, not having effects in his hands, is evidence against the drawer, if made at the time of presentment, but not if made subsequently. Prideaux v. Collier, 2 Stark. 57," on the ground that the drawee is for that purpose the agent of the drawer. » 3 Eng.Com. Law Reps. 371. " 2 Id. 306. • 3 Id. 242. 174 Assumpsit on Promissojy JVotes. In an action against the acceptor of a bill, the acceptor was cal- led for the defendant to prove, that after being accepted by him and indorsed by the defendant, the bill was put into his (the ac- ceptor's) hands for the purpose of getting it discounted, that he took it for that purpose to the plaintiff, who having got hold of it refused either to discount or return it. It was objected that the witness was incompetent on the ground of interest, and Lord Ten- terden rejected him. The Court of King's Bench refused a rule for a new trial moved for on the ground that the witness was impro- perly rejected. Per Lord Tenterden, " I am of opinion that the testimony was properly rejected. It appeared by the statement of the defendant's counsel, that the witness was answerable for the payment of the bill by himself, and there was an implied undertak- ing by him to indemnify Lowe (the drawer and defendant.) He was, therefore, interested in the result of the action, inasmuch as the costs, if the plaintiff succeeded, would ultimately fall on him- self." Edmonds v. Lowe, 8 B. and C. 407." ASSUMPSIT ON PROMISSORY NOTES. In general, the rules relating to the proof of the drawing, indors- ing, presentment, and notice of dishonour of bills of exchange, ap- ply also to promissory notes. Where a different rule prevails, the distinction will be noticed. In an action on a promissory note, the note must be produced and proved, see ante, p. 147, and any material variance between the statement and proof will be fatal, see ante, p. 148, to p. 151. Payee against Maker. In an action on a promissory note by the payee against the ma- ker, the plaintiff must prove the making of the note by the defend- ant, and in some cases, a presentment of the note at a certain place. The making of the note.'] The making of the note will be proved by proving the handwriting of the defendant, see ante, p. 68 ; or, if made by an agent, by proof of the handwriting and authority of such agent. If the note is for less than 5/. it must be attested by a subscribing witness, 7 Geo. III. c. 30, s. 1, and such attesting witness must be called ; or if dead, or he cannot be found, ante, p. 05, his handwriting must be proved, and some evidence must be given of the identity of the maker of the note. An admission by the de- fendant that the handwriting is his, will be sufficient proof in the case of an unattested note, though it was made pending a treaty for a compromise. Waldridge v. Kennison, 1 Esp. 143. An offer on • 15 Enj. Com. Law Reps. 250. Assumpsit on Promissory JYotes. 175 the part of the defendant, after the note has become due, to grve another note to the plaintiff instead of it, is an admission of the plaintiff's title. Bosanquet v. Anderson, 6 Esp. 43. An admission of his signature, by one of the parties, will only be evidence against himself. Gray v. Hodson, 1 Esp. 135. Presentment.'] Where the promise to pay is general, no pre- sentment to the maker need be stated or proved. But, where the note contains in a body of it, and not merely in a memorandum at the foot, a promise to pay at a particular place, a presentment at such place must be proved, see ante, p. 159, but notice to the maker, of the dishonour, is unnecessary. Pearce v. Pemberthy, 3 Campb. 261. Circumstances which would excuse the presentment, as that the maker could not be found, cannot be given in evidence under the general allegation of presentment ; Leeson v. Pigott, Bayl. on bills, 324 ; and see Smith v. Bellamy, 2 Stark. 223 ;p but if a note be made payable at a particular town, and the maker has no residence there, a presentment at the banking-houses there will justify and support an allegation that it was pre- sented there to the maker. Hardy v. Woodroffe, 2 Stark. 319.i Bayley on bills, 324. A note payable at two places may be pre- sented at either. Beeching v. Goiver, Holt, 31 3.'' In an action on a note payable on demand, a demand need not be alleged or proved, for the action itself is a demand. Rumball v. Ball, 10 Mod. 38. Evidence under the common counts."] A promisssory note is evi- dence of monfey lent by the payee to the maker. Bayl. on bills, 286. Where a note cannot be given in evidence for want of a proper stamp, the plaintiff may recover on the consideration of the note, if the declaration contains counts on such consideration, and if he is not precluded from availing himself of them by the terms of his particular. Wilson v. Kennedy, 1 Esp. 245. Farr v. Price, 1 East, 58. Wade v. Beasley, 4 Esp. 7. The plaintiff will not be allowed to resort to the money counts if the note has been lost, unless he can prove it destroyed, or show that the defendant cannot be again subjected to the payment of it. Dangerfield v. Welby, 4 Esp. 159, ante p. 147. Indorsee against Maker. In an action on a promissory note by an indorsee against the maker, the plaintiff must prove the making of the note by the de- fendant, see ante, p. 157, and the indorsement stated in the declara- tion. It has been already stated in what manner an indorsement is to be proved, ante, p. 154, what indorsements are good, ante, p. 155, and what needs be proved, ante, p. 156, as well as in what cases the plaintiffs must prove that they are in partnership, an^e, ;?. 156. In declaring upon a note made to payee or bearer, the indorsements » 3 Eng. Corn. Law Rcpi. 324. < 3 Id. 363. '3 Id. 117. 176 Jissumpsit on Promissory JVotes. nefed not be mentioned, but if stated, they must, it seems, be proved. Waynam v. Bend, 1 Campb. 175; hut see Tanner v. Bean, A. B. and C. 312/ Evidence under the common counts^ It is said that a promissory note is primd facie evidence of money had and received by the maker to the use of the holder; Baijl. on bills, 287; but Lord Ellenborough was of opinion, that tlie indorsee could not recover against the maker on the money counts, as he was not an original party to the note, and therfe was no evidence of any value received by the defendant from him. Waynam v. Bend, 1 Campb. 175; see ante, p. 150. Indorsee against Indorser. In an action by an indorsee against the indorser of a promissory note, the plaintiff must prove the defendant's indorsement, the pre- sentment to the maker and his default, and notice to the defendant of the dishonour. Indorsement.'] In what manner an indorsement must be proved has been already stated, ante, p. 154. It admits all prior indorse- ments, ante, p. 154, and also the handwriting of the maker. Free V. Hawkins, Holt, JV. P. C. 550.* When an indorsement is attested (on a note for payment of less than 5/.), it must be proved by the subscribing witness. As to what indorsements it is necessary to prove, see ante, p. 156. Presentment.'] In what manner a promissory note or bill of ex- change must be presented, has already been stated, ante, p. 157. Where a note is made payable in the body of it at a particular place, it must be presented there, ante, p. 149. As to proof of the maker's default, see ante, p. 161. Notice of dishonour.] It has been before stated by and to whom, ante, j). 160, and within what time, ante, p. 161. notice must be given, as also what will be considered sufficient proof of the de- livery of the notice, ante, p. 161, and of its contents, ante, p. 162. It has also been shown in what cases proof of notice may be dis- pensed with by an acknowledgment on the part of the defendant of his liability, a^ite, p. 164. Where the payee of a note indorses it for the accommodation of the maker, it is still necessary to give notice to the payee in order to charge him, and it is no defence that it was agreed between the parties that the note should not be put in force. Free v. Hawkins, 8 Taunt. 92." Evidence under the common counts.] An indorsement is evidence of money lent by the indorsee to the indorser. Kessebower v. Tims. Bayl. on bills, 288. • 10 £ng. Com. Law Reps. 340. » 3 Id. 184. « 4 Id. 31. Assumpsit on Policies of Insurance. 177 Competency of Witnesses. Maker-I The maker of a promissory note is a competent wit- ness for the plaintiff, in Hke manner as the acceptor of a bill of ex- change, ante. p. 173 ; and one of the joint makers is a connpctent ■witness for the plaintiff, to prove the signature of the defendant, the other joint maker. York v. Blott, 5 M. and S. 71. In an ac- tion by the indorsee against the payee of a note, the maker may be called to prove an alteration; Levi v. Essex, 2 Esp. Dig. 211, 4th ed. ; and he may be called to prove notice, in an action by indorsee against indorser. Venning v. Shuttleworth, Bayley, 422. Indorse!'.'] The indorser of a note is in general a competent witness either for the plaintiff or defendant, in an action by a sub- sequent indorsee against the maker, «?z/e, ;?. 173. But the payee of a note made for his accommodation, who has become bankrupt, and obtained his certificate, subsequently to the date of the note, is not a competent witness for the defendant, the maker, to prove that the note was indorsed to the plaintiff after it became due, for he is no longer liable to the plaintiff', though he still remains liable to the defendant, if the latter should be compelled to pay the note. Moundrel v. Kennet, 1 Camph. 408 {n). But the payee of an ac- commodation note, who has indorsed it to the plaintiff, is a compe- tent witness for the plaintiff to prove that he indorsed it for a val- uable consideration, since he has an equal interest on each side. If the plaintiff succeeds, the witness becomes liable to the defend- ant ; if the defendant succeeds, the witness remains liable to the plaintiff Shuttleicorth v. Stephens, 1 Campb. 407. ASSUMPSIT ON POLICIES OF INSURANCE. In suing on a policy of insurance, the plaintiff must prove, 1. The execution of the policy by the defendant. 2. The interest of the party as averred. 3. The inception of the risk, and, in some cases, compliance with warranties and a license. 4, The loss. Proof of the policy.'] The policy must be produced and proved, and if subscribed by an agent of the defendant, the handwriting and authority of the agent must be proved. If the authority was in writing it should be produced and proved. The authority may also be proved by showing that the defendant has recognised the act of the agent in this instance, or in other similar instances in which the agent has subscribed policies for the defendant; JVeale V. Erving, 1 Esp. 61 ; and where a witness stated that he was au- thorised by power of attorney, but added that the defendant had been in the habit of paying losses upon policies which the witness 23 178 .>4ssumj)sii on Policies of Insurance. had subscribed in liis name, Lord Ellenborough ruled, that the power of attorney need not be produced. Houghton v. Embank, 4 Camph. 88. Where a witness proved the agent's handwriting, and swore that he had often observed him sign policies for the de- fendant, but he had not seen any general power of attorney from the defendant to the agent, nor did he know that the defendant had given the agent any authority to sign this specific policy, nor ■was he acquainted with any instance in which the defendant had paid a loss upon a policy so subscribed, Lord Ellenborough held that the proof of agency must be carried further. Courteen v. Touse, 1 Camph. 43. Parol evidence of what passed at the time of effecting the policy is inadmissible. Weston v. Ernes, 1 Taunt. 115. Though evidence of the custom of trade may be received, a7ite, p. 10. Thus where the question was as to when the risk determined, Lord Mansfield ruled, that insurance brokers and others might be examined as to the general opinion and understanding of persons concerned in the trade, though they know no particular instance, in fact, upon which such opinion was founded. Camden v. Cowley, 1 W. Bl. 417. Interest in the ship, hoio proved.'] The interest in the ship, as stated in the declaration, may be proved, prima facie, by evidence of possession of the ship, or of acts of ownership, as directing the loading of the ship, purchasing the stores, paying the people em- ployed, &c. Amerij v. Rogers, 1 Esp. 207. Thomas v. Foyle, 5 Esp. 88, The ordinary mode of proof is to call the captain, who will prove that he was' appointed and employed by the parties ; and though it should appear, on cross examination, that the parties claim under a bill of sale, it is not on that account necessary for the plaintitrs to produce the bill of sale, or the ship's register, un- less such further evidence should be rendered necessary in support of the prima facie case of ownership, in consequence of the adduc- tion of contrary proof on the other side. Robertson v. French, 4 East, 137. The certificate of registry is not even prima facie ev- idence of ownership. Pire v. Anderson, 4 Tctunt. G52.^ Where the interest is averred in parties who have never been in posses- sion of the ship, it will be necessary to prove the ownership of the persons from whom such parties claim, and the derivative title from them, viz. the bill of sale, and the registry of the ship, ac- cording to the register acts (see the last register act, 6 Geo. IV. 110), and see ante, p. 62, the section as to the copies of affidavits and registers. Interest in goods, how ■proved.'] The interest in the goods may be proved prima facie, like the interest in the ship, by evidence of possession and acts of ownership. It is also frequently proved by the production of the bill of lading. A bill of lading directing Jlssumpsit on Policies of Insurance. 179 the delivery of the goods to the consignee is evidence of interest in him, and where made deliverable to the consignor, and indorsed by him either specially or in blank, it is evidence of interest in the in- dorsee, or holder, M'Andrew v. Bell, 1 Esp. 373. Lickbarrow v. Ma- son, 2 T. R. 71, but if the master qualifies his acknowledgment by the words " contents unknown," the bill of lading will not be evi- dence. Haddow v. Parry, 3 Taunt. 303. The signature of the master to the bill of lading must be proved, and also the indorse- ment, when the party claims under it. If the master is dead, proof of his death and handwriting is sufficient evidence of interest. Haddow v. Parry, 3 Taunt. 303. Where to prove property ii;^ a cargo the plaintiff produced a bill of parcels of one Gardiner at Petersburgh, with his receipt to it, and proved his hand, Lee, J. C, admitted the evidence. Russel v. Boheme, 2 Sir. 1127. By stat. 6 Geo. IV. c. 94, s. 2, any person (after 1st Oct. 1826) intrusted with, and in possession of any bill of lading, dock warrant, &c., warrant or order, for delivery of goods, shall be deemed and taken to be the true owner of the goods, so as to give validity to any con- tract for sale of the goods, or any deposit or pledge, provided there be no notice by the documents themselves that the person intrust- ed, as aforesaid, was not the actual owner, and see Wright v. Camp- bell, 4 Btirr. 2047. Interest, variance in proof of] A material variance in proof from the allegation of interest is ground of nonsuit. Thus, where it is averred that the interest is in a single person, and that the policy was made on his account, and for his use and benefit, and it is proved that the interest is in several, and that the policy was made on their joint account, it is a fatal variance. Bell v. Ansley, 16 East, 141 ; see Caruthers v. Shedden, 1 Marsh. 416 ^ 6 Taunt. 14, S. C. But if it be averred that the plaintiff was interested at the time of effecting the policy, it is sufficient to show that he was interested at the commencement of the risk. Rhind v. Wilkinson, 2 Taunt. 237. Where a policy averred the interest to be in A. B. who was interested at the time, it is sufficient to prove an adop- tion of the policy by A. B. after the loss. Hagedorn v. Oliverson, 2 M. and S. 485. Inception of the ris/c] Where a vessel is lost in the course of a voyage for which she is insured, some proof of the inception of the voyage, or risk, must be given. Koster -v. Inncs, R. and M. 336. This may probably be proved by some of the crew, or proof of a particular destination by charter-party, would afford a presump- tion that she sailed on the chartered voyage; so proof of her clear- ing out for a particular port is evidence that she set sail for that port when she dropped from her moorings. Per Laird EUenhorough^ » 1 Eng. Com. Law Reps. 293. 180 Jlssumpsit on Policies of Insurance. Cohen v. Hinclder/, 2 Campb. 52. Marsh. Ins. 715. So proof of a convoy bond for a particular port, signed by the captain, coupled With the evidence of the custom house oflicer that a certificate and other papers for such a voyage would in tiie regular course of of- fice, be delivered to the captain before he sailed, together with proof of the sailing, has been held evidence of the ship having sail- ed on such voyage. Cohen v. llincldeij, 2 Campb. 51. A license for the port mentioned in the policy is evidence to the same effect. Marshall i\ Parker, 2 Campb. 69. If the declaration aver that the ship sailed after the making of the policy, but in fact it was before, tl^ variance is not material. Peppin v. Solomons, 1 T. R. 496. Shipment of the goods.'] The shipment of goods on board is usu- ally proved by the captain, and, if he be dead, the production of the bill of lading and proof of his handwriting will be evidence of the shipping as well as of the interest. Haddow v. Parry, 3 Taunt. 306. But where the bill of lading was offered in evidence to prove that the goods icere shipped on the plaintiff's account. Lord Ellen- borough rejected it, as being nothing more than the declaration of the captain. Dickson v. Lodge, 1 Starch. 226.'^ So the copy of an official paper made in pursuance of an act of parliament, by an of- ficer of the customs, containing an account of the cargo, and a re- port of the goods on board, is evidence to prove the shipping. Johnson v. Ward, 6 Esp. 49. Compliance ivith xcarranties.'] Where the policy contains a war- ranty, a literal and strict compliance with it must be proved ; it is not sufficient to show something tantamount to a performance. Pawson V. IVatson, Coicp. 785, 2 Saund. 200, c {n). Sec Weir v. Aberdeen, 2 B. and A. 320. To satisfy a warranty " to depart" on or before a particular day, the vessel must be out of port on or before that day ; a warranty " to sail" is satisfied by the ship breaking ground and getting under-weigh. Moir v. Roy, Ex. Ass. Co., 3 M. and S. 461, 6 Taunt.2A\ ;" and see Lang v. Anderdon, 3 B. and C. 495.^ But unless she is unmoored, the warranty to sail is not complied with. Nelson V.Salvador, 1 M. and M. 309. Sail- ing before the vessel has got her clearances, and is equipped for the voyage, is not a sailing within the warranty. Redsdale v. JVewn- ham, 3 M. and S. 456. Where a vessel sailed from St. Anne's, Ja- maica, within the time of warranty, with her cargo and clearances on board, and called atBluefields, another port in Jamaica, for con- voy, where she was detained by an embargo till after the time of warranty, it was held that this was a sufficient sailing from Ja- maica. Bondv. Null, Coir p. 601. Thelusson v. Fergusson, Dougl. 361. » 2Eng.Com. Law Reps. 3G7. ^ 1 Id. 372. y 10 Id. 163. Assumpsit on Policies of Insurance. 181 To prove the sailing with convoy, the log-book, or the official ktter of the contimander of the convoy, is evidence. D' Israeli v. Hoicett, 1 Esp. 427. Watson v. King, 4 Camjph. 275. In order to prove a warranty that- the ship insured is of a parti- cular nation, proof of her carrying the flag of that Hation at times when she was free from the danger of capture, and that the cap- tain addressed himsel to the consul of that nation in a foreign port, is prima facie evidence. Archangeh v. Thompson, 2 Campb. G20. Under a warranty of neutrality it is sufficient to show that the ship was neutral when the risk commenced. Eden v. Parkinson, 2 Dougl 732, a. There are also certain implied warranties, the breach of which will prevent the plaintiff from recovering, as that the vessel is sea- worthy, but it is sufficient if she is seaworthy at the time of sail- ing. Annen v. Woodman, 3 Taunt. 299. Prima facie a ship is to be deemed seaworthy ; Parker v. Potts, 3 Doic, 31 ; but where the inabiUty of the ship to perform the voyage becomes evident in a short time from the commencement of the risk, the presumption is, that it arises from causes existing before her setting sail on the in- tended voyage, and that the ship was not then seaworthy, and the onus probandi, in such case, rests with the assured to show that the inability arose from causes subsequent to the commencement of the voyage. Per Ld. Eldon, Watson v. Clark, 1 Doiv, 344 ; see also Douglas V. Scougall, 4 Doiv, 269. So the insured are not entitled to recover unless they equip the ship with every thing necessary to her navigation during the voyage. Per Ld. Kenyon, Law v. Hollingicorth, 7 7. R. 161. Forshaw v. Chabert, 3 B. and B. 166.^ Tait V. Levi, 14 East, 481. " A ship is not fit for a voyage unless she sails with a complete crew ; a crew competent for the voyage, considering its length and the circumstances under which it is un- dertaken. Per Ld. Tenterden, Clifford v. Hunter, 1 .M. and M. 103. Therefore, where on a voyage from the Mauritius to London, there was no one on board competent to supply the captain's place, in case of illness, the underwiters were held to be discharged. Ibid. But where the assured has once provided a sufficient crew, the ne- gligence of the crew at the time of the loss is no breach of the implie^d warranty. Bush v. Roy. Ex. Ass. 2 B. and A. 73. There is no implied warranty on the part of the owner of goods insured, that the ship shall be in all respects properly documented. Car- ruthers v. Gray, 3 Campb. 142. Where a question arises as to the seaworthiness of a ship, ship-builders who have never seen the ship may state their opinion on examining a survey taken by others, it being a matter of skill and science. Beckwith v. Sydebotham, 1 Campb. 117. Thornton v. Roy. Ex. Ass. Co. Peake, 26. As to the effect of a sentence of a foreign Court of Admiralty in negativing a warranty of neutrality, vide ante, p. 103. « 7 Eng. Com. Law Reps. 389. 182 Jissumpsit on Policies of Insura?ice. A memorandum written on a separate piece of paper and en- closed in tlie policy cannot be considered a warranty. Parson v. Barnewelt, 1 Dougl. VZ («). But it isimmaterial whether the warran- ty is on the margin or in the body of tlic policy. Bean v. Siupart, 1 Doi/gl. 11. -De Hdhn v. Hartley, 1 T. R. 343. A warranty may be waived by a memorandum on the policy without a new stamp. Hubbard v. Jachson, 4 Taunt. 174. Weir v. Aberdeen, 2 B. and A, 325 ante, p. 128. License^ Where the voyage has been legalized by a license, such license must be produced and proved. Where a license grant- ed by the governor of a foreign colony has been lost, parol evidence of its contents is admissible. Kensington v. Inglis, 8 East, 273, ante, p. 3. But where a license has been granted by the secretary of state in this counlry (pursuant to 48 Geo. III. c. 126), parol evidence is not admissible, for there must be some register of it preserved in the office of the secretary of state, which would be better than parol evidence, and if the license was under the sign manual, still some register of it would be preserved. Rhind v. Wil- kinson, 2 Taunt, 243. By the above-mentioned statute, a duplicate of the order in council, authorising the grant of the license, is to be annexed to it ; if the license is lost, examined copies of the order in council from the council books, and of the license in the office of the secretary of state, must be produced as the best secondary evidence, and it must be proved that the license put on board the ship is lost. Eyre v. Palsgrave, 2 Catnpb. 606. Proof that a vessel, warranted to carry a French licence, remained at Bordeaux a month after the inspection of the document purporting to be a French license, and of other documents, by the officers of the French government, is prima facie evidence that the document is genuine. . Everth v. Tunno, 1 Stark. 508.a The license must be shown to apply to the voyage in question. Barlow v. Mcintosh, 14 East, 311. On proof that goods, which cannot be exported with- out a license were entered for exportation at the Custom-house, it will be presumed that there was a license to export them. Van Omeron v. Dowick, 2 Campb. 43. Proof of loss by the perils of the seas."] The loss must be proved to have happened as stated in the declaration, and therefore where goods were insured at and from M. to L., and the declaration averred, that after the loading of the goods the ship departed on her intend- ed voyage, and while in the course of her said voyage was lost by the perils of the seas, it was held that this was a material allega- tion, and was not supported by proof that the ship was lost at her moorings, and before the cargo was completed. Abithol v. Bristow, 2 Marsh. 157. 6 Tau7it. 464, S. C." » 2 Eng. Com. Law Reps. 4f]3. ^ 1 Id. 454. Assumpsit on Policies of Insurance. 183 A loss occasioned by running foul of another vessel by misfortune, is a loss by the perils of the sea ; Buller v. Fisher, 3 Esp. 67 ; so if she was run down by another ship through gross negligence. Smith V. Scott, 4 Taunt. 126. So where the vessel is wrecked in conse- quence of the barratry of the master. Heyman v. Parish, 2 Campb. 149. So where a portion of the goods was saved from the wreck and got on shore, but never came to the hands of the owners, Gibbs, C. J., held it a total loss by the perils of the sea. Bondrett v. Hen- tigg, Holt, 149."= So in an insurance on goods, where the ship was stranded on a shoal within a few miles of the port of destination, disabled from proceeding, and lost, but while she lay in the sand was seized by the commander of the place at which she was strand- ed, and the goods confiscated by him, it was held that the goods were lost by the perils of the seas. Halm v. Corbett, 2 Bingh. 205." Where the insurance was on living cattle, warranted free from mortality, which, in the course of the voyage, were killed by the rolling of the ship, it was held a loss by the perils of the seas. Lawr rence v. Aberdein, 5 B. and A. 109." Gabay v. Lloyd, 3 B. and C. 793. *■ Where a government transport had been insured for twelve months, during which she was ordered into a dry harbour, the bed of which was uneven, and the tide having left her she received damage by taking the ground, it was held to be a loss by the perils of the seas. Fletcher v. Inglis, 2 B. and A. 315. But where a ship was hove down upon a beach, within the tide- way, to repair, and the tide rising, she was bilged and damaged, it was held not to be a loss occasioned by the perils of the seas ; Thom- son V. Whitmore, 3 Taunt. 227 ; and see Phillips v. Barber, 5 B. and A. 161 ;= nor is the destruction of a vessel by worms, at sea, such a loss, Rohl V. Parr, 1 Esp. 445, nor where one English ship sinks another, by firing on her, supposing her an enemy. Cullen v. Butler, 5 M. and 8.4:61. A loss by perils of the seas, but remotely occasioned by the negli- gence of the crew, is within the policy. Walker v. Mailland, 5 B. and A. 171 ;" and see Bishop v. Pentland, 7 B. and C. 217.' Shore V. Benthall, 7 B. a.nd C. 798 (n).'' Where a ship was disabled by perils of the se.as from pursuing her voyage, and the master to defray the expense of repairs, hav- ing no other means of drawing money, sold part of the goods in- sured, and applied the proceeds towards the repairs, it was held that this was not a loSs of the goods by perils of the seas. Sarquy v. Hobson,2 B. and C. 7.' 4 Bingh. 131.'" 1 Y. and J. 347, S. C. A ship never heard of is presumed to have been foundered at sea. Green v. Brown, 2 Str. 1199. JVewby v. Read, Park, his. 85. Gth ed. In order to recover in such case, the plaintiff must prove that the vessel sailed on the voyage insured. Cohen v. Hinckley, 2 Campb. 51. Koster v. James, R. and M. 333. It is suflicient to « 3 Eng. Com. Law Reps. 57. d 9 Id. 383. « 7 Id. 3K. '10 Id. 229. e 7 Id. 55. » 7 Id. 59. 1 14 Id. 33. ^ 14 Id. 130. ' 9 Id. 5. " l3 Id. 374. 184 Assumpsit on Policies of Insurance. prove that the ship has not been heard of in this country since the time of her sailing, without calHng witnesses from the port of des- tination to prove that she never arrived there. Ticemlow v. Osivin, 2 Ca/npb. 85. The time within which a missing ship will be pre- sumed lost, must be regulated by the circumstances of the case. In Houslman. v. T/iornton, Holt, 242," a ship which had sailed on a seven weeks' voyage, and had not been heard of for eight or nine months, was presumed to be lost. Where it was proved that the vessel sailed on the voyage insured, with the goods on board, and never arrived at her port of destination, and that a few days after her departure a report w^as heard at the place whence she sailed that she had foundered at sea, but that the crew w^ere saved, it was held that this was suflicient jjrimd facie evidence of a loss by the perils of the seas, and that the plaintiff was not bound to call any of the crew, or to show that he was unable to procure their atten- dance. Koster v. Reed, 6 B. and C. 19.° Proof of loss by fire.'] Proof that the ship was burned to pre- vent her falling into the hands of the enemy, is evidence of a loss by fire, Gordon v. Riminington, 1 Campb. 023. So in an insurance against " fire, barratry, &c." proof that the ship was burned by the negligence of the master and mariners will support a statement of loss by tire.* Busk u. Roy, Exch. Ass. 2 B. and A. 72. But in an insurance on goods, if the goods are burnt in consequence of being put on board in bad condition, it is not a loss by tire within the meaning of the policy. Boyd v. Dubois, 3 Campb. 133. Proof of loss by capture.] Where a vessel is driven by a gale of wind on an enemy's coast, and there captured, it is a loss by cap- ture. Green v. Elmslie, Peake, 212 ; see Hagedon v. Whitmore, 1 Stark. 157.P The books at Lloyd's are evidence of a capture, but not of notice of the loss to the underwriter. Abel v. Potts, 3 Esp. 242, ante, p. 112. A foreign sentence of condemnation is not evi- dence of a capture ; but after other proof of a capture, it is evi- dence to show the grounds of condemnation. Marshal v. Parker, 2 Campb. 69. See ante, p. 103. If a ship after capture is restored, so as to be in a condition to pursue the voyage insured, and is after- wards lost on another voyage, the plaintiff cannot recover on a de- claration for a loss by capture. Ktden Kemp v. Vigne, 1 T. R. 304. Proof of a capture by collusion with the captain, will support an averment of loss, either by capture or barratry. Per Ld. Ellen- borough, Archangelo v. Thompson, Campb. 621. Proof of loss by barratry.] Evidence that the person who acted " 3 Eng. Com. Law Reps. 88. ° 13 Id. 97. p 2 Id. 326. * Where fire is the proximate cause of the loss of a vessel, it is no defence to say that negligence of the master or mariners was the remote cause. Petaptco Int. Co. V. Coulter, 3 Peters, 222. Assumpsit an Policies of Insurance. 185 as master of the ship carried her out of her course for fraudulent purposes of his own, is prima facie evidence of barratry, without negative proof that the person so acting as master was not the owner, it lying on the underwriter to prove, in his own discharge, that he was the owner. Ross v. Hunter, 4 T. R. 33. Where the whole ship is let, the freighter is owner 'pro hdc vice, and bar- ratry may be committed by the general owner. Val'ejo v. Wheeler, Cou-p. 143. Soares v. Thornton, 1 B. Moore, 373.' Smuggling by the captain, on his own account, will be evidence of barratry ; Lochjcr V. Offleij, 1 T. R, 252 ; but if, by the gross negligence of the owner, the mariners barratrously carry smuggled goods on board, the underwriters are not liable. Pipon v. Cope, 1 Campb. 434. Where prisoners of war rise and confine all the crew, and put them on shore, except one, who is heard on the deck in con- versation with them, it is evidence of barratry to go to the jury. Hucks V. 'Thornton, Holt, 30. ■■ Proof of stranding.'] Where goods are insured free from aver- age, unless general, or the ship should be stranded, before the plaintiff can recover, the stranding must be proved. A striking is not sufficient ; it is merely temporary, or as it has been vulgarly described, a touch and go; but in order to constitute a stranding, the ship must be stationary; Per Lord Ellenhoroiigh, M'Dougall v. RoijalExch. Ass. Co. 1 Camph. 131, 4 ./)/. and S. 503, S. C. But where the ship was fixed from fifteen to twenty minutes, it was held a stranding. Baker v. Toicry, Id. 437. If a ship is forced ashore, or is driven on a bank, and remains for any time upon the ground, this is a stranding without reference to the degree of dam- age she sustains. Per Lord Ellenhorough, Harman v. Vaiux, 3 Campb. 431. " A stranding," says Mr. Justice Rayley, " may be said to take place where a ship takes the ground, not in the ordinary course of the navigation, but by reason of some unforeseen accident." Bishop V. Pentland, 7 B. and C. 224." Where a ship, under the conduct of a pilot, in her course up the river to Liverpool, was, against the advice of the master, fastened at the pier of the dock basin, by a rope to the shore, and left there, and took the ground, and when the tide left her, fell over on her side and bilged, this was held to be a stranding. Carruthers v. Sydebotham, 4 M. and S. 77. So, where in the course of a voyage upon an inland navigation, it became necessary, in order to repair the navigation, to draw o'l the water, and the ship in consequence having been placed in the most secure situation that could be found, when the water was drawn off, went by accident upon some piles, which were not previously known to he there, it was held a stranding. Rai/ner v. Godmond, 5 B. and A. 225.' So, where in the course of the voyage the ship was by 9 2Eng. Com.LawRepB.238. '3 Id. 13. • 14 Id. 33. ' 7 Id. 76. 24 186 <^1lssumpsit on Policies of Insurance. tempestuous weather forced to take shelter in a harbour, and, in entering it, struck upon an anchor, and being brought to her moor- ings was found leaky and in danger of sinking, and on that account was hauled with warps higher up the harbour, where she took the ground and remained fast for half an hour, the stranding was held to be proved. Barrow v. Bell, 4 B. and C. 736." In the following case also it was held to be a stranding. The ship was compelled in the course of her voyage to put into a tide harbour, and was there moored alongside a quay in the usual place for ships of her burden. It became necessary, in addition to the usual moorings, to fasten her by tackle to posts on the shore, to prevent her falling over upon the tide leaving her. The rope with which she was fastened, not being of sufficient length, broke, when the tide left the vessel, and she fell over upon her side, and was thereby stove in and greatly injured ; this was held to be a stranding, though it might have been occasioned remotely by the negligence of the crew. Mr. Justice Bayley said, " So long as the vessel was on the ground and lashed to the posts on the shore, she was not stranded ; but, when she fell over on her side, and lay on the ground in that position, she was stranded. The falling over was not in the ordi- nary course of the voyage, but in consequence of an unforeseen accident out of the ordinary course of the voyage, viz. the break- ing of the rope." Bishop v. Pentland, 7 B. and C. 219.'' But where the taking the ground is no more than is usual with vessels on the same voyage, it is not a stranding ; thus where a vessel took the ground in the ordinary course of the navigation, and afterwards being moored at a quay, on the ebb of the tide took the ground, fell over on her side and was injured ; but the taking of the ground was stated by a witness to be no more than was usual with vessels of the same class in proceeding up the same navigation, this was held not to be a stranding. Hearne v. Ed- munds, 1 B. and B. 388 r ses 7 B. and C. 225.'= Proof of amount of loss.'] Where the plaintiff declares for a to- tal, he may give evidence of a partial loss. Gardiner v. Crosedale, 1 W. BL 198. Rucker v. Palsgrave, 1 Campb. 557, 1 Taunt. 419. An adjustment is proved by evidence of the signature of the under- writer, or his agent, with proof of the authority of the latter; and it seems that an agent who has authority to subscribe a policy, has also authority to sign an adjustment of the loss. Richardson v. Anderson, 1 Camph. 43 {n). The production by the assured of a policy of insurance with an adjustment on it, and the name of the defendant struck off the policy, is not evidence of the payment to the assured of the sum adjusted. Adams v. Sanders, 1 J\I. and M. 373, 4 C. and P. 25, .S'. C' An adjustment is only prima facie evi- dence against the underwriter, and does not bind him, unless there » 10 Eng. Com. Law Reps. 451. ■'14 Id. 33. » 5 Id. 129. » 14 Id. 35. y 19 Id. 257. Jlssumpsit on Policies of Insurance. 187 was a full disclosure of the circumstances of the case ; Shejjherd o, Chewter, 1 Qamph. 274; and fraud opens an adjustment. Christian V. Coombe, 2 Esp. 489. An adjustment does, not require a stamp. fViebe v. Simpson, 2 Selw. J^. P. 917, 4th ed. In an action on in- surance of goods, if the declaration allege the ship to have been sunk, whereby the goods were spoiled, and it appear that some of the goods were saved, the plaintiffmay give the expense of salvage in evidence, though not specifically averred. Cary v. King, Rep. temp. Hard. 304. Salvage on the re-capture of a ship must be proved by producing the proceedings of the admiralty court ascer- taining the amount. Thellusson v. Shedden, 2 JV. R. 229. In open policies the assured must prove the extent of his loss ; but in valued policies, if the loss be a total one, he is only bound to prove so7ne interest in the ship or goods, in order to take the case out of the statute 19 Geo. II. c. 37, for ever since that statute, the constant usage has been to permit the valuation fixed in the policy to stand, unless the defendant can show that the plaintiff had a colourable interest only, or that he has greatly overvalued the goods. But where the loss is partial it opens a valued policy, and the plaintiff is as much bound to prove the value of the goods that have been lost, and to ascertain the damage he has sustained by the loss, as in case of an open policy. 2Saund. 201 (n). The certificate of an agent of Lloyd's, resident abroad, is not ad- missible to prove the amount of damage sustained by goods, though the defendant is a subscriber to Lloyd's. Drake v. Narryatt, 1 B. and C. 473.^ Proof of amount of loss — abandonment.'] Before the plaintiff can recover for a total loss, it is necessary in some cases to prove an abandonment. " The late cases show that a mere loss of the adventure by retardation of the voyage without loss of the thing in- sured, either by its being actually taken from the ship or spoiled, does not constitute a total loss, under a policy of insurance, unless by the aid and effect of an abandonment." Per Ld. Tenterden, JVaylor v. Taylor, 9 B. and C. 723,^ citing Anderson v. Wallis, 2 M. andS. 240, and Holdsivarth v. Wise, 7 B. and C. 794.'' In order to justify an abandonment, there must have been that in the course of the voyage, which at the time, constituted a total loss. Thus, capture or the necessary desertion of a ship constitutes a total loss. Per Bayley, J., Holdsworth v. Wise, 7 B. and C. 799." The effect of an adandonment, therefore, is to prevent a loss at the time total, from becoming, by the operation of subsequent circumstances, par- tial. An abandonment may be by parol, but it should be certain, and therefore a statement of the facts, a request to settle for a total loss, and to direct the disposal of the ship, have been held insufficient. ' 8 Eng. Com. Law Reps. 137. » 17 Id. 482. •> 14 Id. 129. 188 ^Qssumpsit on Policies of Insurance. Parmeter V. Todhvnter, I Cajnph. 5il. The notice of abandon- ment must he given within a reasonable time. Read v. Bonham, 3 B. and B. 147 ;= Ihmt v. Bnija/ Exchange Assurance, b M. and S. 47. Hudson v. Harrison, 3 B'. and B. 100." So the undenyriter is bound to say, within a rca.sonahlc time after receiving notice of abandonment, whether he will accept it or not, Hudson v. Har- rison, 3 B. and B. 97.'' A party jointly interested in the subject matter of the insurance, and who has elFected the insurance, may give notice of abandonment for all. Hunt v. the Royal Exchange Assurance, 5 Jll. and S. 47. Where the damage sustained makes the loss a total loss, as where a ship is reduced to a mere wreck so as not to be worth re- pairing, it is unnecessarv to prove a notice of abandonment. Cam- bridge V. Anderton, 2 B^.and C. 691,' R. and M. 61, S. C. Defence. Under the general issue the defendant may show that the plain- tiff is not entitled to recover, on account of fraud, or misrepresen- tation, or concealment of circumstances, or non-compliance with re- presentations, or non-compliance with a warranty. Frauds misrepresentation, or concealment?^ If the assured con- ceals any material fact which relates to the ship, the policy is void. Carter v. Bochn, 3 Burr. 1005. And the assured is bound to com- municate all the information he has received, though he does not know it to be true, and it afterwards turns out to be false. Lynch V. Hamilton, 3 Tauut. 37. It is sufficient to communicate facts, without the opinion or conclusion founded upon these facts. Bell v. Bell, 2 Camph-Alb', see Durrel v. Baderley, Holt, 283.^ Underwri- ters may, as it seems, be called to state their opinion, as to whe- ther the communication would have varied the terms of insurance. Berthon v. Loughman, 2 Starh. 258,? ante, p. 98, and see 3 Stark. En. 1175, but see Durrell v. Eederley, Holt, 286,' coiitra. It is a question for the jury whether any particular fact is or is not mate- rial. Lindcnau v! Deshorougk, 8 B. and C. 586." It is sufficient if a representation be substantially performed, and not like a war- ranty, strictly and literally. Punson v. Watson, Coicper, 785. And it has been ru'ed by Lord Tentcrdcn, that the mere fact of a misre- presentation, without fraud, will not he enough to prevent the plain- tiff's recovery ; for the contract between the parties is the policy which is in Vv-riting, and cannot be varied by parol. Flinn v. Tobin, 1 M and M. 307. In an action against a second or subsequent underwriter, it is the practice to admit evidence of representations to the first underwri- ter, on a presumption that the subsequent underwriters give credit to such representations. Jbid. Marsden v. Reid, 3 East, 573. Stackpole v. Simon, Park's Ins. 583, 6th ed. The rule is con- « 7 Eng. Com. Law Reps. 384. ^ 7 Id. 364. • 9 Id. 224. ' 3 Id. 104. t 3 Id. 340. " 15 Id; 306. Jissumpsit on Policies of Insurance, 189 fined to representations made to the first underwriter (that Is, the first on the policy), Ihicl Bell v. Car stairs, 2 Camph. 543, and is, it seems, to be taken with great qualifications, and with regard to the time and circumstances under which the communication was made. Forrester v. Pigou, 1 M. and S. 9. Fraud.] If goods are fraudulently over-valued, with intent to defraud the underwriters, the contract is void, and the assured cannot recover even for the value actually on board. Haigh v, De la Cour, 3 Campb. 319. Deviation.'] A deviation from the voyage insured is a defence to an action on the policy. Where the insurance is on a voyage to a given place, and the captain when he sails does not mean to go to that place at all, he never sails on the voyage insured. But where the ultimate termini of the intended voyage are the same as those described in the policy, although an intermediate voyage be con- templated, the voyage' is to be considered the same until the vessel arrives at the dividing point of the two voyages. The departure from the course of the voyage insured then becomes a deviation ; but before the arrival at the dividing point there is no more than an intention to deviate, which, if not carried into effect, will not vitiate the policy. Per Baijley, J., Hare v. Travis, 7 B. arid C. 17.' JVon-compliance with warranties.] The defendant may defeat the plaintiff's claim, by showing a non-compliance with a warranty, either express or implied, vide ante, p. 180. As to the want of proper stamp, and an alteration in the policy, vide ante, p. 128. Competency of Witnesses. An underwriter is a competent witness for another underwriter, who has subscribed the same policy, Bent v. Baker, 3 T. JR. 27, unless he has entered into the consolidation rule, or has paid the loss upon an agreement to be re-paid in case the plaintiff fails. Forrester v. Pigou, 1 M. and S. 14. In an action on insurance of goods, the owner of the vessel is not a competent witness to prove the seaworthiness of the ship, for he w^ould be liable to the plain- tiff, if un-sca worthy. Rotheroe v. FJton, Peake, 84. So the captain is not a competent witness for the defendant, to disprove the charge of barratry. Bird v. Thompson, 1 Esp. 339. But in an action on a policy on goods, where the ship was lost by putting into a port out of the line of the voyage, it was held that the captain, who was also part owner, was competent to prove that the ship origin- ally sailed on the voyage insured, by the direction of the owner of the goods, though not to prove that the deviation was justified by ' 14 Eng. Com. Law Reps. 4. 1 90 Assumpsit on Warranty of a Horse. necessity. De Symonds v. De la Caur, 2 Bos. and P. JV. R. 374. See also Taijlor v. M'Viccar, 6 Esp. 27. One who is jointly in- terested in tlie property, whether at the time of effecting the policy, see De Si/monds v. Shed den, 2 Bos. and Ptd. 155, or afterwards, Pcrchar'd v. IVhitmore, Ibid. («), is an incompetent witness for the plaintitr. The captain's protest is not admissible evidence of the facts there stated, but may be read for the purpose of contradict- ins; his testimony. Scnat v. Potter, 7 T. R. 158. Christian v. Coomhe, 2 ~Esp. 490. ASSUMPSIT ON WARRANTY OF A HORSE. When a horse has been sold, and warranted sound, but is in fact unsound, the purchaser may maintain an action upon the warranty, or, in some cases, may rescind the contract, and recover the money paid, under the count for money had and received. Thus, where by the contract the purchaser has the power of returning the horse, should it prove unsound, and does return it, or otfers to do so, the contract is at an end, and money had and received will lie. Towers V. Barrett, 1 T. R. 133. So, where the contract is rescinded with the assent of the defendant. Per Buller, J., ib. But the purchaser must return the horse within a reasonable time; JD7\ Compton's case, cited 1 T. R. 136; and see Adam v. Richards, 2 H. B. 574 ; and he must return him in the same state as sold, and not diminish- ed in value by doctoring, &c. Curtis v. Hannay, 3 Esp. 82. -See 5 East, 452. Where a horse was warranted sound, and the vendor said, in a subsequent conversation, that if the horse were unsound he would take it again and return the money, it was held that the original contract was not abandoned, and that assumpsit for money had and received could not be maintained by the purchaser, the horse not being taken back. Payne v. Whale, 7 East, 274. If the plaintiff sues for money had and received, he must prove the pur- chase, and warranty, and power to rescind (and, for this purpose, show a breach of the warranty, if necessary), and also the rescind- ing of the contract by returning the horse. Where the plaintiff proceeds on the contract of warranty, he must prove, 1. The contract, viz. the consideration and the promise ; 2. The breach of the warranty ; and, 3. The damage sustained. The consideration.'] This is usually proved by the production of the receipt. If the defendant took another horse in part payment, it is no variance to state that the whole price was paid in money. Hands v. Burton, 9 East, 349, Bronm v. Fry, Selio. JV. P. 630 ; but see Harris v. Fowle, cited 1 H. B. 287. If an agent sell to A. two horses belonging to B. and C, and warrant them, A. must not de- clare as upon the sale of one horse, the contract being entire. Assumpsit on Warranty of a Horse. 191 Symonds v. Car, 1 Campb. 361. Where the declaration stated the contract to be, that in consideration the plaintiff would buy of the defendant a horse for a certain price, to wit, 55/., the defendant undertook that the horse was sound, and the contract proved was that the defendant warranted the horse sound, and agreed to give 1/. back if the horse did not bring the plaintiff 4/. or 5/., this was held a fatal variance. Blyth v. Barnpton, 3 Bing/i. 472,'-' Gaselee, J., diss. The promise or loarranty.'] The plaintiff must prove an express warranty, a high price not being tantamount thereto. Parkinson V. Lee, 2 East, 322. Where the plaintiff wrote to the defendant, *' You will remember that you warranted a horse as a five-year old, &c." to which the defendant answered, " The horse is as I re- presented it," it was ruled that this was sufficient evidence for the jury to infer a warranty at the time of sale. Salmon v. V/ard, 2 C. and P. 211.* If the seller says, " The horse is sound to the best of my knowledge, but I will not warrant it," and the seller knows it to be unsound, he is answerable on this qualified warranty. Wood V. Smith, 4 C. and P. 45," 1 M. and M. MSS, S. C. Where the warranty was, " To be sold, a black gelding, five years old — has been constantly driven in the plough — warranted," this was held to be only a warranty of soundness. Richardson v. Brown, 1 Bingh. 344," 8 B. Moore, 338, S. C. A servant employed to sell a horse, has . an implied authority to warrant ; Alexander v. Gibson, 2 Campb. 555 ; and even though the servant have express directions not to warrant, but does warrant, the master, it is said, is bound, because the servant, having a general authority to sell, is in a con- dition to warrant, and the master has not notified to the world that the general authority is circumscribed. Per Bayley, J., Pickering V. Busk, 15 East, 45 ; see Helyear v. Haioke, 5 Esp. 75. But this doctrine has been confined to the cases of sales by servants of horse-dealers, who may be supposed to possess a general authority. Bank of Scotland v. V/atson, 1 Boiv, 45 ; and see Fenn v. Harrison, 6 T. R. 760, A7ion. case, cited 15 East, 407. What is said by the servant at the time of sale is evidence, but an acknowledgment at another time is not so, and the servant must be called. Helyear v. Haioke, 5 Esp. 72. A receipt for the price, containing the war- ranty, is admissible to prove the latter, though only bearing a receipt stamp. Skrine v. Elmore, 2 Campb. 407. Where the plaintiff declared on a warranty that the horse was sound, and the warranty proved was, that the horse was sound everywhere, except a kick on the leg, it was held a fatal variance. Jones V. Cowley, 4 B. and C. 445." Breach of the warranty.^ The plaintiff must give positive proof k 13 Eng. Com. Law Reps. 57. 12 Id. 94. » 19 Id. 267. • 8 Id. 339. • 10 Id. 377. 192 v^ssmnpsit on Warranty of a Horse. that the horse was unsound, &c. at the time of the sale ; a suspi- cion that the horse was unsound is not sufficient. Eaves v. Dixon, 2 Taunt. 343. It was ruled by Lord Ellenborough, that any in- firmity, as a temporary lameness, which renders a horse less fit for present use or convenience, though not of a permanent nature, and though removed after action brought, was an unsoundness. Elton V. Jordan, 4 Camph. 281. 1 Stark. 127,*" S. C. But in Garment v. Barrs, 2 Esp. 673, it was ruled by Eyre, C. J., that a horse labour- ing under a temporory injury or hurt, which is capable of being speedily cured or removed, is not an unsound horse. Roaring is not, it is said, necessarily unsoundness, unless symptomatic of dis- ease ; Basset i\ CoUis, 2 Carnpb. 523 ; but if it is of such a nature as to incommode the horse when pressed to his speed, it is an un- soundness. Onsloio V. Eames, 2 Slurh. 81" A nerved horse is un- sound. Best V. Osborne, R. and M. 290. A cough, if of a perma- nent nature, is an unsoundness, Shillitoe v. Claridge, 2 Chitty^s R. 425 ;'• see 1 Stark. 127 ;!■ but crib-biting is no unsoundness. Broen- nenhurg v. Haycock, Holt, 030." Whether thrushes, splints, or quidding, be an unsoundness, is a disputed question. 2 Camph. 524 (n.) So the being '/ chest foundered." Atterhxiry v. Fairmanner, 8 B. Moore, 32.* It need not be averred, nor, if averred, proved, that the defendant knew of the unsoundness. Williamson d. Alli- son, 2 East, 446. Proof that a horse is a good drawer will not sa- tisfy a warranty that he is " a good drawer, and pulls quietly in harness." Colthird v. Puncheon, 2 D. and R. 10." Damage^ If the horse has been returned, the plaintiff will be entitled to recover the whole price ; if kept, the difference between the value and the price ; or the plaintiff may sell the horse for what he can get, and recover the residue of the price in damages. Caswell V. Coare, 1 Taunt. 566. If the horse is not tendered to the vendor, the vendee can recover no damages for the expense of his keep, ibid. ; but where the seller, rescinded the contract, it was held that he was liable for the keep of the horse from the time of the contract ; King v. Price, 2 Chitty, 416;'' though for such space of time only as would be required to re-sell the horse to ihe best advantage. M^Kenzie v. Hancock, R. and M. 436. Where A. warranted a horse to B., who re-sold him with a warranty to C, and the horse proving unsound, C sued B., who gave notice to A. of the action, and offered him the option of defending it, but A. not giving any answer, B. defended the action, and failed, it was held that A. was liable in an action on the warranty, for the costs of the action brought by C. against B. Lewis v. Peake, 7 Taunt. 153,'' 2 Marsh. 431, S. C. Competency of witness.'] It has been held, that a former propri- p 2 Eng. C«m. Law Reps. 324. <) 8 Id. 255, ' J 8 Id. 386. '3^.207. • 17 Id. 99. " 16 Id. 55. M8 Id. 383. " 2 Id. 54 Assumpsit on Promise of Marriage. 193 etor of a horse, who has sold him with a warranty to the plaintiff, is a competent witness for the defendant, to prove that the horse was, at the time of the sale by himself, sound ; for it does not ap- pear that the horse was unsound at that time, and unless it were, the witness would not be liable to the defendant ; Briggs v. Crick, 5 Esp. *J9; but see 2 Pklll Ev. 114, and quarc, for unless the tes- timony as to the soundness at the time of the former sale, tended to prove soundness at the time of the latter sale, it would be irre- levant. If, on the other hand, the testimony of the soundness at the time of the first sale tends to proof of soundness at the time of the second, then the witness seeks to establish a fact in which, if he failed, damages would be i-ecovered, to which he would, it seems, be liable, on negativing the fact which he attempted to prove, viz. the soundness at the time of the tirst sale. 3 Stark. Ev. 1647 {n), and see Lewis v. Peake, supra. ASSUMPSIT ON PROMISE OF MARPvLlGE. To maintain this action, the plaintiff must prove, 1, the promise of the defendant as stated, and, 2, the breach. The promises must be mutual, the reciprocity constituting the consideration, 1 Rol. Ab. 1, 5, 22. Either a man or woman may sue for breach of promise of marriage, although an attempt was made in Harrison v. Cage, 5 Mod. 511, to resist the action on the ground that marriage is not an advancement for a man. As in other cases an. infant may en- force an advantageous contract, although not bound thereby, so an infant may sue a person of full age for breach of promise of mar- riage. Holt V. Ward, 2 Strange, 937, Woricick v. Bruce, 2 M. and S. 209. This action falls within the general rule actio personalis meritur cum. persona ; and cannot be maintained by an executor or administrator, unless perhaps under peculiar circumstances, whereby a strict pecuniary loss has accrued to the party deceased, and the personal estate been endamaged accordingly, which special damage must be stated on the record, for it will not be intended. Chamberlain v. Walker, 2 M. and S. 410. Proof of the contract.'] In an early case {Philpotv. Wallet, Skin. 24, 3 Lev. 65, S. C) it was held, that mutual promises to marry come within the fourth section of the statute of frauds ; and the rule was so stated by Lord Chief Baron Comyn in the Digest {Ac- tion on the case, F. 3) ; but in B71II. JV". P. 280, a contrary doctrine is laid down, for which the authority of Cork v. Baker, 1 Strange, 34, is cited. This case, as well as that of Harj-ison v. Cage, 1 Ld. Raymond, 386, has been animadverted upon by Mr. Phillipps in vol. 2. of his Evidence, page 73, 5th edition. He, however, concludes by stating the better opinion to be, and it is universally agreed upon at this day, that the promises need not be in writing. Should , 25 194 jJssimipsit on Promise of Marriage. however, written evidence of the contract be produced, no stamp is required. Orfard v. Cole, 2 Star/;. 351." A promise on the part of a woman may be presumed from such circumstances of acqui- ence, or tokens of approval, as ordinarily attend the acceptance of an offer of marriage ; her presence when the ofTer was made, and the consent of parents asked, without her making any objection ; her subsequent reception of tiie suitor's visits, and concurrence in the arrangements for the wedding; her carrying herself as one consenting and approving, for her express consent in words is not necessary. Daniel v. Bowlea, 2 C. and P. 554.^ Huiton v. Man- sell, 3 SalL 16. But to prove a promise by a man, undoubtedly more would be necessary, neither the usages of society nor consid- erations of delicacy interfering, to restrain an explicit declaration on his part. A promise to marry generally is in law a promise to marry within a reasonable time ; and although a special promise to marry at a particular time, varying from that stated on the re- cord, should be proved in evidence, it may be left to a jury to infer from the circumstance a promise to marry generally. Potter v. De- hoos, 1 Stai'h 83,^ Phillips v. Crutchleij, 3 C. and P. 178," 1 Moore and P. 239." The breach of the promise.'] To prove the breach of the prom- ise, evidence must be given either that the defendant has married another, so that the performance of the promise is no longer possi- ble, or that a tender has been made by the plaintiff, followed try a refusal on the part of the defendant. For this purpose it has been held sufficient, that the father of a female plaintiff demanded of the defendant, if he meant to perform his engagement with his daughter, and that the defendant replied, " Certainly not." Gough V. Farr, 2 C. and P. 631.'' Any conduct or circumstances evincing the readiness of the one party, and the contrary determination of the other, would be evidence of a tender and refusal to lay before a jury. Defence. If, after entering into a contract of marriage, either party disco- ver gross immorality, or depraved conduct in the other, evidence to that effect may be given in bar of the action ; thus brutal and violent conduct in the man, accompanied with threats of ill usage to the woman, go to the ground of the action ; Leeds v. Cook, 4 Esp. 258 ; and if a man has been paying his addresses to one that he supposes a modest person, and he afterwards discovers her to be with child, (not by himself,) or to be a loose and immodest woman, and on such account he refuses to fulfil any promise of marriage he may have made her, he is justified in so doing. Irving » 3 Eng. Com. Law Reps. 378. J 12 Id. 258. ' 2 Id. 305- > 14 Id. 260- '' 17 Id. 179. « 12 Id. 293. Jlssumpsit on an Award. 195 c. Greenwood, 1 C. and P. 350."''' Baddeley v. Mortlocke, Holt, 151.'' But if a man knowingly promise to marry a loose and im- modest woman, he is bound by such promise. Per Lm^d Tenter- den, ibid. To entitle the defendant to a verdict, on the ground of the bad character of the plaintiff, it is not sufficient to show that charges (as of pecuniary dishonesty and perjury) were made a- gainst him, which he promised, but failed to explain. The defend- ant must go further, in order to bar the action, and show that the charges were founded, and that the plaintiff's character was bad. Baddeley V. Mortlocke, Holt, 151.^ In reduction of damages, any circumstances in the character of the plaintiff, leading the jury to a just appreciation of the loss for which compensation is sought, may be proved ; as also the disapprobation of the match expressed by the parents of the defendant, to prove which, (the father being an incompetent witness by reason of his having employed the attorney,) Lord Tenterden allowed one of the other relations to be called. Irving V. Greenwood, 1 C. and P. 350.s To show the general bad character of the plaintiff, a witness may state what has been said by third persons ; and it is not necessary to produce those persons. Foulkes V. Sellway, 3 Esp. 238, supra. If by misrepresentation, or wilful suppression of the real circumstances of the family and pre- vious life of the plaintiff, the defendant be induced to enter upon or continue the treaty of marriage, it is a good defence to the ac- tion. Wharton v. Lewis, 1 C. and P. 531. i' Should the defend- ant's counsel intimate by his course of cross-examination of plain- tiff's witnesses, that the practice of deception is imputed to the plain- tiff, the plaintiff's counsel ought, upon such notice, before closing his case, to offer the evidence, rebutting such imputation. Ibid. If a female plaintiffknow that her father is making, by letter, repre- sentations to the defendant respecting her, his letters are evidence for the defendant, to show deceit on her part, although she will not be answerable for particular expressions ; but a representation made orally by the father to a third person, in the absence of the plaintiff, and by such person communicated to the defendant, is not admissible. Foote v. Hayne, 1 C. and P. 547.' ASSUMPSIT ON AN AWARD. In assumpsit on an award, the plaintiff must prove the submis- sion and award in the manner before stated, ante, p. 7G, and the performance by himself of any conditions precedent. Where the submission has been by a judge's order, which has been made a rule of court, it is sufficiently p^o^ed by production of the rule. Still v. Ilalford, 4 Campb. 17. If the time for making the award has been enlarged, and the award made within the enlarged time, the plain- Mi Eng. Com. Law Reps. 4 1 2. • 3 Id. 57. f 3 Id. 57 e 11 Id. 412. Ml Id. 459. i 11 Id. 466. 196 Assumpsit on an JUlorneifs Bill. tiff must show that the enlargement was duly made, according to the terms of the submission or by the consent of the parties. But if the enlargement was irregularly made, such irregularity is waived by the appearance of the parties before the arbitrator after the enlargement. Re Hick, 8 Tramt, G94.' Halden v. Glasscock, 8 Dow. 071(1 Hi/. 151. Laurence v. Hodgson, 1 Y. and J. 16. The plaintilV need not prove tliat the defendant had notice of the award, for he is bound to take notice of the award, as well as the plaintiff. 2 Saund. 62 a {n). Defence. The defendant, under the general issue, may object to the suffi- ciency of the award ; or that there is a variance between the award declared On, and that produced in evidence. But corruption or misconduct of the arbitrators cannot be given in evidence, at least where, for such corruption or misconduct, application might have been made to the court to set such award aside. Wells v. Maccar- mick, 2 Wils. 148. Braddick v. Thoinpson, 8 East, 344. Watson on awards, 224, and see Brazier v. Bryant, 3 Bingh. IGT.*" ASSUMPSIT ON AN ATTORNEY'S BILL. In an action upon an attorney's bill, the plaintiff must prove, 1. His retainer by the defendant, which may be proved by showing that the defendant attended at his office, and gave directions ; 2. That the business was done, which may be proved by a clerk, or other agent, who can speak to the existence of the causes and the business in respect of which the charges are made, and can prove the main items, Anon. Esp. D. J\C P. 10, without proving the seve- ral items to have been done. Phillips i\ Roach, Esp. D. JV. P. 10. If there are no taxable items in the bill, it will also be necessary to give general evidence of the reasonableness of the charges. Proof of a judge's order, referring the bill to be taxed, and of the defend- ant's undertaking to pay what shall appear to be due, and of the master's allocatur, will be sufficient proot", both of the retainer and of the business having been done. Lee v. Jones, 2 Camph. 496. 3. Where the demand is for fees, charges, or disbursements, at law or in equity, he cannot recover until the expiration of one month (a lunar month, Hard v. Leach, 5 Esp. 164) or more after he has delivered to the party or parties to be charged therewith, or left for him or them, at his or their dwelling-house, or last place of abode, a bill of such fees, charges, and disbursements, subscribed with the proper hand of such attorney or solicitor, 2 G. II. c. 23. s. 23 ; and he must, therefore, prove the delivery of such bill. Intel- j 4 Eng. Com. Law Reps. 249. ^ n id. 82. Assumpsit on an Attorney's Bill 197 ligible abbreviations will not vitiate the bill. Reynolds v. Caswell, 4 Taunt. 193. Frowd v. Stillard, 4 C. and P. b\} Costs, charges, and dishnrsements.'] Where the demand is part- ly for taxable items, and partly for items not taxable, it has been held that the plaintiff may recover for charges or disbursements not taxable, provided he has delivered no bill at all, but where he has delivered a bill irregularly he cannot ; and, therefore, where a single item for business done in court is inserted in the bill, it must be proved to have been signed and delivered according to the sta- tute. Winter v. Payne, G T. R. 645. Mowhray v. Fleming, 1 1 East, 285. Tldd, 329, Sth ed. Weld v. Crawford, 2 Stark SSS.™ And where the plaintiff had been employed in defending a cause, and had done other business not taxable, and had delivered separate bills. Lord Tenterden ruled thatall ought to have been included in one bill, and that the second bill ought to have been delivered a month before the action. Thwaite v. Mackerson, 1 M. and M. 199. But it seems that where a bill is delivered according to the statute, containing various taxable items, one item of which is not suffici- ently described, according to the provisions of the statute, the plain- tiff may still recover the residue of the bill. Dreio v. Clifford, R. and M. 280. Taxable items have been held to be, preparing a warrant of attorney, Sandom v. Bourne, 4 Campb. 68, but see Bur- ton V. Chatterton, 3 B. and A. 488," see also Wilson v. Gutteridge, 3 B. and C. 157,« Weld v. Crawford, 2 Sta7'k 538 ;™ a dedimus potestatem, Ex-parte Prickett, 1 JV". R. 266 ; preparing an affidavit to hold to bail. Winter v. Paijne, 6 T. R. 645. So items for attend- ing and examining bail, and attending the plaintiff in several ac- tions against the defendant, and arranging to take cognovits therein, are taxable items. Watt v. Collins, R. and M. 284. So the obtain- ing a bankrupt's certificate. Collins v. Nicholson, 2 Taunt 321. See Ford v. Webb, 3 B. and P. 241. So attending at a lock-up- house and obtaining the defendant's release and filling up the bail bond. Fearne v. Wilson, 6 B. and C. 87. p So where the attorney proceeds only for costs out of pocket. Miller v. Towers, Peake, 102. But a bill for conveyancing alone is not taxable. Anon. Tidd, 329 ; nor is preparing an affidavit of petitioning creditor's debt and bond to the chancellor, for a commission of bankrupt, a taxable item, the affidavit having never been sworn, nor the commission issued ; Burton v. Chatterton, 3 B. and A. 486;" nor searching at the judg- ment office, Fenton v. Cfrrrea, 2 C. and P. 145,i R. and M. 262, S. C. ; and money paid by an attorney in consequence of his un- dertaking to pay debt and costs, is not a disbursement within the statute. Protheroe v. Thomas, 6 Taunt. 196.'' Where a bill contains taxable articles and a separate demand for money lent, the latter may be recovered, though the bill was not regularly I 19 Eng. Com. Law Reps. 368. » 3 Id. 4G5. » 5 Id. 353. • 10 Id. 42- Pis Id. 108. q 12 Id. 21. ' 1 Id. 355. 198 Assumpsit on an Attorney's Bill. signed. liemmings v. Wilton, 1 M. and M. MSS. s. v. Hill v. Hump- hreys, 2 Bos. and Pull. 343. Benton v. Garcia, 3 Esp. 149. A dis- tinction seems to be taken in these cases between items which have no reference to the plaintilfs professional character, and items which, though not taxable, have such reference ; and in the former case it seems that he may recover though a bill may have been irregularly delivered. See also Miller v. Towers, Peake, 102. A bill must be delivered, under the statute, for business done, at the quarter-sessions, Clarke v. Donovan, 5 T. R. 694 ; or the in- solvent court. Sinith v. JVattleicorth, 4 B. and C. 364.» So a bill for business done in a criminal suit in the court of Great Sessions of Caermarthen, is taxable. Lloyd v. Maund, Tidd, 330, hit see 2 Meriv. 500. But business done in the House of Lords on the pro- secution of an appeal is not taxable. Williams v. Odell, 4 Price, 279. Delivery of the bill] The bill should not only be delivered, but left with the defendant. Brooks v. Mason, 1 H. B. 290. Showing and explaining the bill, without a regular delivery, is not sufficient. Crowder v. Shee, 1 Camph. 437. It is not sufficient to prove that the bill was delivered at a particular place (not shown to be the defendant's abode), and that the defendant afterwards delivered it to his attorney's clerk. Eicke v. JSokes, 1 M. and M. 305. An in- dorsement on the bill, in the handwriting of the plaintiff's clerk, since dead, proved to have existed at the time of the date, and stating that a copy was on such a day delivered to the defendant, together with proof that it was the clerk's duty to deliver the bill, and that such an indorsement was usually made in the course of business, will be sufficient prima facie evidence of the due delivery. Champneys v. Beck, 1 Stark. 404.* To ivhom.'] A personal service is not necessary, but a delivery to an agent appointed by the party to receive it, will be sufficient. Per Lord Ellenhoroiigh, Finchett v. How, 2 Camph. 277. Thus the delivery of the bill to the attorney of the party is good. Warren V. Cunningham, Goiv, 71." Vincent v. Staymaker, 12 East, 372, diss. Ld. Ellenh. So a delivery to one of several persons who has been authorised to act for the others, is a delivery to all, Finchett V. How, 2 Camph. 277, and seems sufficient in an action against any one of them. Crowder v. Shee, 1 Camph. 437. Thus where an at- torney had been retained jointly by several parties to defend seve- ral suits against each, in the subject matter of which they had a common interest, it was held that the delivery of a bill to one, was sufficient to enable the plaintiff to maintain a j'oint action against all. Oxenham v. Leynon, 2 D. and R. 4G1.^ As to the joint re- tainer, see Hellings v. Gregory, 1 C. and P. 627.^ • 10 Eng. Com. Law Reps. 358. ' 2 Id. 445. " 5 Id. 468. M6 Id. 103. '^ 1 1 Id. 500. Assumpsit on an Attorney^ Bill. 199 At what time.'] The bill must be proved to have been delivered one (lunar) month before the commencement of the action. The Nisi Prius record will be sufficient jirima facie evidence, when made up of a term commencing more than one month after the delivery of the writ, that the action has not been brought too soon, and will make it incumbent on the defendant, if the fact was so, to prove that the action was commenced too soon, by producing a copy of the writ. Webb v. Pritcheit, 1 B. and P. 263, Rhodes v. Gibbs, 5 Esp. 163, or the declaration. Harris v. Orme, 2 Camjib. 497 («). The time of the issuing of the writ may also be proved by the parol evidence of the plaintiff's attorney, without producing the writ or a copy. Lester v. Jenkins, 8 B. and C. 339,^ 2 M. and R. 439, S. C. The record in all the courts is entitled of the term in which issue is joined, but in K. B.,in actions by bill, and in the Exchequer, a memorandum is added of the term in which the declaration was filed ; and if the first day of that term should be within one month after the delivecy of the bill, the Nisi Prius record will not be sufficient proof, unless the memo- randum be special, stating the precise day on which the bill was filed. See 2 Saund. 1 b. {n), and Wooldridge v. Wooldridge, 2 M and R. 431 (n). At what place.'] Leaving the bill at the defendant's counting- house is not sufficient. Hill v. Himiphreys, 2 B. and P. 343. It seems that it is sufficient to leave it at his last known place of abode. It is not sufficient for the defendant to show, that he had left that place of abode, without also showing, that he had a later known place of abode. Wadeson v. Smith, 1 Stark. 324.^ Proof of the bill.] The bill may be proved by a copy or dupli- cate original, without any notice to produce the bill delivered. Anderson v. May, 2 B. and P. 237. Colling v. Treiceek, 6 B. and C. 394," see Philipson v. Chase, 2 Campb. 110, A mistake in the date of the items which does not mislead, will not vitiate the de- livery of the bill. Williams v. Barber, 4 Taunt. 906. Cases in which a bill need not be delivered.] A bill signed ac- cording to the statute, need not be delivered, though containing taxable items, when it is due from one attorney or solicitor to ano- ther attorney or solicitor ; 12 Geo. II. c. 13, s. 6 ; though the de- fendant only became an attorney after the business was done. Ford V. Maxwell, 2 H Bl. 589. Wildbore v. Bryan, 8 Price, 677. Nor need the executor or administrator of an attorney deliver a bill. 1 Barnard K. B. 433. Barrett v. Moss, 1 Carr. and P. 2.» To set-off the bill, it need not have been delivered a month ; it is sufficient to deliver it in time for the plaintiff to have it taxed be- » 15 Eng. Com. Law Rops. 232. 7 2 Id. 410. « 13 Id. 200. Mild. 296- 200 Assumpsit on an Attorney's Bill. fore the trial ; Martin v. Wender, Dough 199 (n). Tidd, 335 ; hut see jMurphi/ v. Cunninghain, 1 Anstr. 198, contra; and Bulman v. Berkett, 1 Esp, 449, where it is said by Lord Kenyon, that when an attorney means to avail himself of his bill for business done, and to give it in evidence, he must deliver a bill signed to the plaintiff, bnt that it is not necessary that a month's time should intervene between the delivery and the action. Defence. Where a bill has been delivered containing taxable items, the defendant cannot object to the reasonableness of the charges at the trial. Anderson v. May, 2 B. and P. 237. Tidd, 345. Lee v. Wil- son, 2 Chitty's R. 65." The delivery of a former bill is conclusive evidence against an increase of charge on any of the same items contained in a subsequent bill, and strong presumptive evidence against any additional items ; but real errors or omissions are to be allowed for. Loveridge v. Botham, 1 B. and P. 49. The plaintiff's negligence in the conduct of the business, cannot be set up as a defence, Templer v. M'Lachlan, 2 J\'. R. 136. Pasmare v. Bir- nie, 2 Stark. 59,<= unless it has been such as to deprive the defendant of all benefit, and the charges sought to be recovered have been occasioned by the plaintiff's want of proper caution ; Montriou v. Jefferies, R. andM. 317, 2 C.andP. 113,^ S. C. ; but if there are other causes conducing to the loss of the benefit besides the plain- tiff's negligence, the negligence is no defence to the action. Dax v. Ward, 1 Stark. 409.'' And it is no defence in an action for business done in defending a suit, that the plaintiff was instructed to put in a plea in abatement, for delay, which he neglected to do, where- by the defendant had judgment against him. Johnson v. Alston, 1 Campb. 175. It is a good defence that the plaintiff resides at a considerable distance from the place where his business is carried on, and that in fact the business is transacted there by his articled clerk. Tay. lor V. Glassbrook, 3 Stark. 75.^ Hopkinson v. Smith, 1 Bi7igh. 13.s So it is a good defence that the plaintiff undertook the cause gratis; and the declarations of his clerk, when he attended to tax the costs in such cause, are evidence for the defendant. Ashford v. Price, 3 Stark. 185," 1 D. and R. JV. P. C 48, S. C. The defendant may prove that the plaintiff has neglected to take out his certificate, by which his admission has become void. 37 Geo. II. c. 90, s. 31. But where, in an action brought by an attor-. ney in 1825, the defendant proved that the plaintiff had not taken out any certificate during the years 1814, 1815, 1818, 1819, and 1820, but did not prove that the plaintiff had not been readmitted after that time, and there was evidence that in 1824 the plaintiff had acted as an attorney, and had been retained by the defendant b 18 Eng. Com. Law Reps. 250. '=3 Id. 243. M 2 Id. 50. ^ 2 Id. 447. t 14 Id. 166. g 8 Id. 225. ^ 14 Id. 176. Assumpsit on an Jlj)othecarif s Bill. 201 ill that character, it was held, that this prima facie evidence was. unrebutted by the defendant, and that the plaintiff was entitled to recover. Pearce v. PVhale^ 5 B. and C. 38.' It is no defence in an action for fees due for the suing out a commission of bankruptcy, that the plaintiff is only an attorney of K. B. and not a solicitor in Chancery. Wilkinson v. Diggell, 1 B. and C. 158."' And it is no defence that the plaintiff refused to go on with a suit in Chancery, if the defendant did not supply him with monev. kaicson v. Earle, 1 M. and M. MSS. Where one attorney does business for another, the attorney who does the business universally gives credit to the attorney who em- ploys him, and not to the client for whose benefit it is done. If the attorney in such case intends not to be personally responsible, it becomes his duty to give express notice, that the business is to be done on the credit of the clie;it. It furnishes no defence that the business was known by the plaintiff to be done for the benefit of the client. Scrace v. Whittingtdn, 2 B. and C. 11.' ASSUMPSIT ON APOTHECARY'S OR SURGEON'S BILL. The plaintiff must, in the first instance, prove his title to sue as an apothecary, for by stat. 55 Geo. III. c. 194, s. 21 (explained and amended by 6 Geo. IV. c. 133), no apothecary shall be allowed to recover any charges claimed by him in any court of law, unless such apothecary shall prove on the trial, that he was in practice as an apothecary prior to or on the 1st August, 1815, (see Apotheca- ries^ Camp. V. Rohy, 5 B. and A. 952 : and it seems, that by 6 Geo. IV. c. 133, s. 5, he must prove himself to have been in practice on the first day of August, 1815,) or that he has obtained a certificate to practice as such from the Apothecaries' Company. The statute does not relate to physicians, chemists, or druggists, or to the Col- lege of Surgeons. Sec. 28, 29. It has been ruled by Best, C. J., that an apothecary may either charge for his attendances, or for the medicines which he supplies, but that he cannot charge for both. Towne v. Lady Gresley, 3 C. and P. 581 ;'" hut see Handey v. Hen- son^ 4 C. and P. 110," post, p. 202. " Practice as an afothecary.'"^ Merely administering medi- cines previous to the 1st August, 1815, will not be sufficient to prove that the party practised as an apothecary, and incapacity to make up the prescriptions of a physician will be cogent evidence to prove the negative. Apothecaries' Company v. Warburton, 3 B. and A. 40," It has been ruled by Lord 'renterden, that curing a local complaint is not sufficient evidence that the party compound- ed medicines according to prescription. To entitle him to sue he ' 11 Eng. Com. Law Reps. 138. ^ 8 id. 50. ' 9 Id. 7. ■" 14 Id. 462. ■> 19 Id. 300. » .5 Id. 223. 26 202 ^^ssu7npsU on an Apothcccmf s Bill. must have practised the general duties of an apothecary. Thomp- son V. Lewis, 1 M. and j\I. 255, 3 C. and P. 483," S. C. Practice while in the service of anotlicr is not a practising within the act. Brown v. Robinson, 1 C. and P. 264.i Certificate.] By 6 Geo. IV. c. 133, s. 7, the common seal of the Company of Apothecaries is sufficient proof of the ceriiticate, and that the person therein named is quahfied to practise : but the seal must be proved to be the seal of the company. Chadivick v. Bun- ning, R. and M. 306, 2 C.and P. lOG,"" S. C. A g-e?ieraZ certificate, not confining the party to practise- in the country, will entitle him to recover for business done in London, although he has only paid 41. 4s. the price of the country certificate under 55 Geo. III. c. 194, s. 19. Ibid. The certificate supersedes the necessity of proving an apprenticeship served. Sherwin v. Smith, 1 Bing. 204,' 8 B. Moore, 30. 5. C. If a promissory note be given " in consideration of the plaintiff's care, and medical attendance bestowed upon the maker," and no- tice is given of disputing the consideration of the note, it is incum- bent upon the plaintilT to prove himself qualified by stat. 55 Geo. III. c. 194. Blogg V. Pinhers, R. and M. 125. Surgeon's Bill. By ?> Hen. VIII. c. 11, s. 1, no one shall act as a surgeon within the city of London, or seven miles round, unless he be examined and licensed by the College of Surgeons, under the penalty of 5/. per month. It is incumbent upon the defendant, if he intends to avail himself of the plaintiff being unlicensed, to prove that fact, Gremaire v. Le Clerc Bois Valon, 2 Campb. 143, and it seems that as the statute contains no prohibitory clause, a person, though subject to a penalty, may recover for his labour. Ibid. A surgeon who practices as a physician, having no diploma, can- not maintain an action for his fees ; Lipscotnbe v. Holmes, 2 Campb. 441 ; and if in his bill a surgeon leaves a blank for his charge for attendances, and the defendant pays a certain sum into court on that account, the plaintiff is bound by that sum, and cannot re- cover more. Tuson v. Batting, 3 Esp. 192. A surgeon not having a certificate from the Apothecaries' Com- pany, cannot charge for his attendance or for administering medi- cine, except in cases within his own department. He cannot, therefore, recover for attending a patient in the typhus fever. Al- lison V. Hay don, 4 Bingh , 619,* 3 C. and P. 246," S. C. But if the plaintiff be a surgeon and apothecary he may, besides his charges for medicine, recover reasonable charges for attendances. Handey v. Henson, 4 C. and P. 110.^ p 14 Eng. Com. Law Reps. 401. i 11 Id. 386. ' 12 Id. 49. • 8 Id. 297. t 15 Id. 90. » 14 Id. 289. » 19 Id. 300. Assumpsit for Servants' Wages. 203 Defence. If the defendant has received no benefit, in consequence of the plaintiff's want of skill, the latter cannot recover. Kannen v. M'MuUen, Peake, JV. P. C. 59. Duffit v. James cited 7 East, 480. So a person who professes to cure disorders in a specified time by- sovereign remedies, and induces the defendant to employ him by- false and fraudulent representations of his skill, and does not suc- ceed in his cure, cannot recover for medicines and attendance, Hupe V. Phelps, 2 Sta7^k. 480 ^^ but the remuneration of a regular practitioner, who has used due care and diligence, does not depend on his efiecting a cure. Per Abbott, C. J., ibid. A physician can maintain no action for his fees. Cliorly v. Bol- cot, 4 T. R. 317. ASSUMPSIT FOR SERVANTS' WAGES. In an action by a servant for his wages, the plaintiff must prove a retainer, of which his service will be evidence, the length of lime he has served, and the amount of his wages. A general hiring, without mention of time, is a hiring for a year, and if during the year the master dismiss his servant without cause, the latter is entitled to his wages until the end of the year. Beeston v. Collyer, 4 Bingh. 309,^ 2 C. and P. 607,^ S. C. But if he leaves his service during the year without cause, it seems to be a forfeiture of the wages due to him, and he cannot recover any- thing. Huiman v. Boulnois,2 C. and P. 510.^ Vv^ith regard to a menial servant, there is a common understanding that the contract may be dissolved by either party, — by the master on paying a month's wages or giving a month's warning, by the servant on giving a month's warning. See Beeston v. Collyer, 4 Biiigh. 313.'= In such case, therefore, if the master, without reasonable cause, turn the servant away, the latter will only be entitled to recover a month's wages. Robinson v. Hindman, 3 Esp. 235. But other servants, as clerks, &.c. may recover their wages for the remainder of the year. Beeston v. Collyer, 4 Bingh. 309.'= And where wages are payable quarterly, and the servant is tortiously discharged in the middle of the quarter, he has been allowed to recover for the whole quarter, on the general count for work and labour. Gandall v. Pontigny, 4 Campb. 375, 1 Stark 198," ,S'. C. See Eardly v. Price, 2 JV. R. 333 ; but see Hulle v. Heighlman, 2 East, 145. But if a servant miscon- duct himself, the master may turn him away without any warn- ing; Spain V. Arnott, 2 Stark. 256;" Trolman v. Dunn, 4 Campb. 212; and in such case, the misbehaviour seems to be a forfeiture of the accruing wages. Alkin v. Acton, 4 C. and P. 208.'^ See Shir- man V. Bennett, 1 M. and J\1. MSS. A servant incapacitated from » 3 Ene^. Com. Law Reps. 440. » 13 Id. 444. r 12 Id 286. ' 12 Id. 239. »?Id. 334. "3 Id. 339, ' 19 Id. 346. 204 Assumpsit for not accepting Goods. actual service during part of liis time by sickness, is still entitled to recover his wages for the whole period. A*, v. Winterdatt, Cald. 298 ; and see Chandler v. Grieves, 2 //. B, 006. A servant who has come over from the West Indies, where he has been a slave, and who continues in the service of his master in England, is not entitled to wages without an express agreement. Alfred v. Fitzjamcs, 3 Esp. 3. ASSUMPSIT FOll NOT ACCEPTING GOODS. In an action of assumpsit for not accepting goods sold, the plain- tilTmust prove the contract and breach, the performance of all conditions precedent on his part> and the amount of damage. The contract.] By the seventeenth section of the statute of frauds, 29 Car. II. c. 3, no contract for the sale of any goods, wares, and merchandises, for the price of 10/. sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties, to be charged by such contract, or their agents thereunto lawfully authorised. JVhat contracts are within the seventeenth section of the statute of frauds.] It was formerly thought that executory contracts were 'not within the statute ; Towers v. Sir J. Osborne, 1 Str. 505, Clayton V. Andrews, 4 Burr. 2101, B. JN^: P. 279 ; but that opinion was af- terwards exploded ; Roundeau v. Wyatl, 2 H. Bl 63. Garhutt v. IVatson, 5 B. and A. 613 ;" and therefore it was held that a con- tract by the plaintiffs, who were millers, for the sale of flour, which was not at the time prepared so as to be capable of immediate de- livery, was within the statute. Garhutt v. Watson, 5 B. and A. 613.* But where the contract was not for the sale of goods, but for work and labour and materials found, as in that case the subject matter of the contract did not exist in rerum naiura, and was incapable of delivery and of part acceptance, it was held not to be within the statute. Thus a contract for the purchase of a quantity of oak pins (for upwards of 10/.) which were not then made, but were to be cut out of slabs, was held not to be within the statute; Groves v. Buch, 3 M. and S. 178; and upon this principle the case of Towers v. Osborne, which was a contract for a chariot not then made, may be supported. Cooper v. Elston, 7 7. i?. 17 ; see also Astey V. E?nery, 4 M. and S. 262; S7nith v. Surman, 9 B. and C. 576.^ But now by Lord Tentcrden's act, 9 Geo. IV. c. 14, s. 7, the above provision of the statute of frauds *' shall extend to all -i 7 Eng. Com. Law Reps. 209. « 17 Id. 443. Assumpsit for not accepting Goods. 205 contracts for the sale of goods of the value of 10/. sterling and up- . wards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be ac- tually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same tit for delivery. To bring the contract within the statute, the value of the goods must be upwards of 10/., and where several articles were bought at a shop at the same time, but at different prices, each under 10/., but amounting altogether to 70/., it has been held to be one contract and within the statute. Baldey v. Parker, 2 B. and C. 37,'' morefulhj stated post. With regard to contracts for the sale of growing crops and timber, see the cases cited ante, p. 120. The cases with regard to an acceptance of goods within this section of the statute of frauds, are stated under a subsequent head. Vide jwst, ^' Assumpsit for goods sold and delivered,'" p. 216. Sales by auction, of goods, are within the statute. Kenworthy v. Schofield, 2 B. and C. 945.^ What note or memorandum in icriting is sufficient ivithin the Seventeenth section of the statute of frauds^ The word bargain, used in the statute, means the terms upon which the parties contract. Per Baijley, J., Kenworthy v. Schofield, 2 B. and C. 947. ^ The price must be stated. Elmore v. Kingscote, 5 B. and C, 583." " We agree to give Mr. E. Is. Id. per pound for thirty bales of Smyrna cotton, customary allowance, cash three per cent., as soon as our certificate is complete, — M. and T." has been held a sufficient me- morandum. Egerton v. Mathews, 6 East, 307. See Cooper v. Smith, 15 East, 103. Richards v. Porter, 6 B. and C. 437.' As the lan- guage of this section is in substance the same as that of the fourth section, relating to the sale of lands, see 2 B. and C. 947,s it will only be necessary to refer to the cases already cited, ante, p. 136, with regard to the signmg of the note or memorandum by the party, and the manner in which two writings may be connected, in order to form a complete note or memorandum. An auctioneer is the agent of both parties, Kenworthy v. Scho- field, 2 B. and C. 947 ;' and if he writes down the buyer's name, or that of his agent, in the catalogue, to which the conditions of sale are annexed, opposite the lot, together with the pi'ice bid, it seems a sufficient memorandum. Phillimore v. Barry, 1 Ccanpb. 513. Kenworthy v. Schofield, 2 B. and C. 945. But where the con- ditions of sale are not annexed to the catalogue, and there is no re- ference to them in the catalogue, signing the buyer's name in the catalogue is not a compliance with the statute. Hinde v. White- house, 7 East, 558. Kenworthy v. Schofield, 2 B. and C. 945. ' 9 Eng. Com. Law Reps. IG. « 9 Id. 286. i" 12 Id. 327. • 13 Id. 229. 206 Assumpsit for not accepting Goods. If A., without authority, makes a contract in writing for the purchase of goods by B., and B. subsequently ratifies the contract, such ratification renders the act of A. valid, as an agent within the statute of frauds. Maclean v. Dunn, 4 Bingh. 722." A broker is the agent of both parties, and may bind them by signing the sam-c contract on behalf of buyer and seller. Where bought and sold notes have been delivered by the broker to the parties, those notes, and not the entry by the broker in his book, are the the proper evidence of the contract ; Thornton v. Meux,l M and M. 43 ; and such notes are admissible, though the entry in the broker's book has never been signed by him. Goom- v. Jljlalo, 6 B. and C. 117 ;' 9 D. and R. 148, S. C. If the bought and sold notes materially difier, there will be no valid contract. Grant v. Fletcher, 5 B. and C. 43G."' Thornton v. Meux, 1 M. and M. 43. A bought note signed by the broker, and delivered to the purchaser, is not a' sufficient note or memorandum wnthin the statute. Smith V. Sparrow, 2 C. and P. 544 ;" hut see Dickinson v. Lilioal, 1 Stark. 129." If no bought and sold notes have been made out, the entry in the broker's book, signed by him, will, as it seems, be evidence of the contract. Grant v. Fletcher, 5 B. and C. 436."' Henderson V. Barnewall, 1 Y. and J. 387. Where the broker, in the bought and sold notes, described the seller's firm as A., B.,' and C. ; but the firm had, in fact, unknown to the broker, been changed to A., D., and K, it was held that A., D., and E., might sue on the contract, it not appearing that the defendant had been prejudiced or ex- cluded from a set-off, and there being some evidence of his having treated the contract as subsisting with the plaintiffs. Michell v. La- page, Holt, 258.P A material alteration in the sale note, by the broker, at the instance of the seller, after the bargain made, and without the consent of the purchaser, will preclude the seller from recovering. Powell v. Divett, 15 East, 29. Performance of conditions precedent.] Where it is the duty of the plaintiff to tendeV the goods to the defendant, such tender must be averred and proved. So in an action for not accepting stock, the plaintiff must show that he has done every thing on his part towards the execution of the contract, by proving eitiier a tender or refusal, or that he waited at the bank till the final close of the transfer books, on the day when the stock was to be transferred. Borden- ave V. Gregory, 5 East, 107. But where, by the terms of the con- tract, it is incumbent on the purchaser to fetch away the goods, the averment and proof of a tender seem to be unnecessary, and it will be sufficient for the plaintiff to aver and prove a readiness to deliver. See Raicson v. Johnson, 1 East, 203. Wilks v. Atkinson, 1 Marsh. 412, post, p. 209.'' k 15 Eng. Com. Law Reps. 129. > 13 Id. 116. ■» 1 1 Id. 265. » 12 Id. 253. " 2 Id. 325. P 3 Id. 91. i 1 Id. 292. Assumpsit for not accepting Goods. 207 Damages. — In an action for not accepting goods to be paid for by a bill, the plaintiff is entitled to recover interest from the time the bill, if given, would have become due. Boyce v. Warburton, 2 Campb. 480. The difference between the contract price and the market price on the day the contract was broken is the measure of damages. Boorman v. JVash, 9 B. and C. 145.'' Goods bargained and sold.^ If the plaintiff should fail on the special count, he may resort to the count for goods bargained and sold, and will be entitled to recover the whole value of the goods. Hankey v. Smith, Peaks, 42 (n). Where goods in bulk are sold at so much per ton, an action for goods bargained and sold will not lie before they have been weighed. Per Littledale, J., Simmons v. Swift, 5 B. and C. 857.^ In order to maintain a count for goods bargained and sold it must appear that the property passed, there- fore where a machine is ordered to be made, the maker, having completed it, cannot sue for goods bargained and sold if there is no appropriation of the particular machine assented to by the buyer. Atkinson v. Bell, 8 B. and C. 277.* In one case the vendor was allowed to recover on a count for goods bargained and sold, al- though before action brought he had resold the goods, on the ground that the purchaser might maintain an action of trover for them. Mertens v. Adcock, 4 Esp. 251. But in another case it was ruled by Lord Kenyon, that the plaintiff having resold the goods, had, by that act, abandoned his right to insist upon the defendant taking his goods, and could not recover on a count for goods bargained and sold ; Hoare v. Milner, Peake, 42 a {n) ; and in a late case, where, by the contract, the vendor had power to resell, the Court of Common Pleas doubted whether such an action could be maintained, after a resale ; for by the resale the seller rescinds the contract and shows his dissent to the contract of bargain and sale. Hagedorn v. Laing, 6 Taunt. 166 ;" see also James v. Shore, 1 Stark. 430,^ Greaves v. Ashlin, 3 Cainpb. 426, Langfort v. Tiler, 1 Salk. 113. But it is now decided that an action for not accepting lies against a purchaser who refuses to take goods, although the vendor has resold them. Maclean v. Dunn, 4 Bingh. 722.^ Defence. If the bulk of goods sold by sample does not accord with the sample, the defendant may insist on it as a defence, although it be proved that the common mode of settling disputes of this kind, is by making an allowance for the difference. Hibbert v. Shee, 1 Campb. 113. So he may show that the goods do not correspond with the kind mentioned in the contract. Tye v. Tynmure, 3 Campb. 462. But where, upon the sale of goods, the seller produces a sample, and ' 17 Eng. Com. Law Reps. 344. • 12 Id. 383. » 15 Id. 216. » 1 Id. 344. " 2 Id. 456. » 15 Id. 129. '208 Assumpsit for not accepting Goods. represents that the hulk is of equal quality, and there is a sale note which does not refer to the sample, it is no defence that the goods are not equal to the sample. Meyer v. Eiverth, 4 Ccmipb. 22; See also Pickering v. Dorrson, 4 Taunt. 779, Kain v. Old, 2 B. and C. (j34j But under a contract to purchase 300 tons of Campeachy logwood, at 35/. per ton, to he of real merchantable quality {such as might be determined to be otherwise bj impartial judges, to he rejected), it was held that the vendee was bound to take so much of the wood tendered, as turned out to be of the sort described, at the contract price, though it appeared at the time that a part, which was afterwards ascertained to be 16 tons, was of a different and inferior description. Graham v. Jachson, 1 East, 498. Where a joint order is given for several articles, at several prices, the con- tract is entire, and the purchaser may refuse to accept one, unless the others are delivered. Champion v. Short, 1 Campb. 53. Bal- dey V. Parker, 2 B. and C. 47 ;" and see infra. The purchaser by sample has a right to inspect the whole in bulk, at any proper and convenient time, and if the seller refuses to show it, may re- scind the contract. Lorymer v. Stnith, 1 B. and C. 1." See Par- ker V. Palmer, 4 B. and A. 387*'' If a man sells goods to be deliv- ed on a future day, and neither has the goods at the time, nor has entered into any prior contract to buy them, nor has any reasona- ble expectation of receiving them by consignment, but means to go into the market and to buy the goods which he has contracted to deliver, he cannot maintain an action upon such a contract. Per Abbot, C. J., Bryan v. Lewis, R. and M. 387. ASSUMPSIT FOR NOT DELIVERING GOODS. In assumpsit against the vendor of goods, for not delivering them, the plaintiff must prove the contract and the breach, ante, p. 204, the performance of all conditions precedent on his part, and the amount of damages. Where A. by letter offered to sell to B. certain goods, receiving an ansirer by course of post, and the letter being misdirected by A. the answer notifying the acceptance of the offer arrived two days later than it ought to have done, and on the day following that when it should have arrived, had the first letter been rightly directed, A. sold the goods to a third person, it was held that there was a contract binding the parties from the moment the offer was accept- ed, and that B. was entitled to recover against A. in an action for the non-delivery. Adams v. Lindsell, 1 B. and A. 681. But in general, where an offer is made, the party who makes it may retract it at any time before acceptance by the other party. Cooke v. Oxlcy, y 9 En^. Com. Law Reps. 205. ^ 9 Id. 16. » 8 Id. 1. bgid. 455. jlssumpsit for Goods sold and delivered. 209 3 T. R. 653. Routledge v. Grant, 4 Bingh. 653/ So the bidder at an auction may retract his bidding before the hammer is down. Payne v. Cave, 3 T. B. 148. The terms of a contract were as follows: — " 1st April. Sold W. P. one bale of sponge at, &c., and bought of him yellow ochre at, &c., the value to be delivered on or before the 24th inst. J. R." In an action by W. P. for not delivering the sponge, it was held that the delivery of the ochre on the 24th, was a condition precedent to the plaintiff's right of action. Parker v. Raidings, 4 Bingh. 280.* In support of the averment that the plaintiff was ready and wil- ling to accept the goods, and to pay for the same, it will not be ne- cessary to prove a tender of the money, it is sufficient to aver that the plaintiff was ready and willing to receive and pay for the goods, i?au-so72 V. Johnson, 1 East, 203, JVaterhouse v. Skinner, 2 B. and P. 447, and a demand of the goods seems to be sufficient evi- d9nce that the plaintiff was ready and willing. Wilks v. Atkinson, 1 Marsh. 412.-= Levy v. Lord Herbert, 7 Taunt. 318.^ And it is sufficient if the demand was by the plaintiff's servant. Squier v. Hunt, 3 Price, 68. In case the goods are to be delivered at a future day, the dama- ges are, the difference between the contract price and the price of the goods at or about the day when they ought to have been de- livered. Gainsford v. Carrol/, 2 B. and C. 624.s Leigh v. Pater- son, 8 Taunt. 540." But in an action for not replacing stock at a given day, the plaintiff is entitled to recover according to the price on the day of the trial. Shepherd v. Johnson, 2 East, 211. ASSUMPSIT FOR GOODS SOLD AND DELIVERED. The plaintiff in an action for goods sold and delivered must prove, 1. The contract of sale ; 2. The delivery of the goods ; 3. The value where there is no price agreed upon. In general, proof of the delivery of the goods to, and receipt of them by the defend- ant, is prima facie evidence of the contract, and supersedes the proof of an order. Bennet v. Henderson, 2 Stai^k. 550.' 77ie contract of sale.'] In some cases, where goods have been wrongfully taken, the plaintiff may waive the tort, and sue on the implied contract. Thus where the defendant by fraud procured the plaintiff to sell goods to an insolvent, and afterwards got them into his own possession, he was held liable in an action for goods sold. Hill V. Perrot, 3 Taunt. 274, recog. Abbotts v. Barry, 2 B. and B. 369 ;" but see B. JV. P. 130. Ben7iet v. Francis, 2 B. and P. 554. So where a father fraudulently represented that he was about to relinquish his business in favour of his son, to ' 15 En^r. Com. Law Reps. 99. ^ 13 Id. 4U3. ' 1 Id. 292. ' 2 Id. 119. % 9 Id. 204. •• 4 Id. 204. • 2 Id. 470. " 6 Id. 157. 27 210 Assumpsit for Goods sold and delivered. whom (being a minor) goods were, upon such representation, sup- plied, which the father took into his own hands, he was held liable for goods sold and delivered. Biddle v. Levy, 1 Stark. 20 ;' see also Bennett v. Francis, 4 Esp. 30, 2 B. and P. 550, S. C. Read v. Hut- chinson, 3 Campb. 352. But where the plaintiflf sold to the de- fendant beer in casks, giving him notice that unless he returned the casks in a fortnight he would be considered the purchaser, and the defendant omitted to return them, Lord Ellenborough held that the defendant was not liable on a count for goods sold and deliver- ed. Lyons v. Barnes, 2 Starli. 39 ;™ hut see Studdy v. Sanders, 5 B. and C. 028." Where the owner of property which has been taken away by another waives the tort, and elects to bring an ac- tion of assumpsit for the value, it is incumbent on him to show a clear and indisputable title to that property. Per Abbott, C. J., Lee V. Shore, 1 B. and C. 97." The value of fixtures cannot be recovered under a count for goods sold and delivered; Lee v. Risdon, 7 Taunt. ISS.* 2 Marsh. 495, S. C. ; nor the value of standing trees ; Knowles i\ Michel, 13 East, 249 : see Sytiith v. Surman, 9 B. and C. 561 ;i but the value of trees which the defendant has purchased, and felled, and carried away, may be recovered under a count for trees sold and delivei'ed. Bragg V. Cole, 6 B.Moore, IM."" The value of growing crops may be recovered in a count for crops bargained and sold ; Parker v. Staniland, 11 East, 362; and crops agreed to be taken by an in- coming from an outgoing tenant, may be recovered under a count for goods bargained and sold. Per Holroyd, J., Mayfield v. Wadsley, 3 B. and C. 364.' See also PouJter v. KilUngheck, 1 B. and P. 397. Where a person builds a house for another, he is not entitled to recover the value of the materials under a count for goods sold and dehvered. Cottrell v. Apsey, 6 Taunt. 322.* Where the contract was, that certain goods should be paid for partly in money and partly in buttons, Buller, J., held that the plaintiff could not recover under a count for goods sold, but should have declared specially. Harris v. Fowle, cited 1 H B. 287. See also Talon v. West, Holt, 179 ;" but see Hands v. Bitrton, 9 East, 349, supra. However, where A. agreed to give a horse in exchange for a horse of B. and a sum of money, and the horses were ex- changed, but B. refused to pay the money, it was held that it might be recovered under the indebitatus count for horses sold and de- livered, Sheldon v. Cox, 3 B. and C. 420.^ So in an action to re- cover the value of a gun, for which the defendant was to give ano- ther gun and fifteen guineas. Lord Ellenborough was of opinion, that upon the refusal of the purchaser to pay for the gun in that mode, a contract resulted to pay for it in money, and that the value might be recovered under a count for goods bargained and soldi ' 2 Eng. Com. Law Reps. 277. >" 3 Id. 234. " 12 Id. 336. « 8 Id. 30. p 2 Id. 69. 117 Id. 443. '17 Id 19. MO Id. 110. » lid. 400. » 3 Id. 66. ' 10 Id. 137. Assumpsit for Goods sold and delivered. 211 Forsyth v. Jervis, 1 Sta7'k. 347"'. See alo Ingram v. Shirley, 1 Stark. 185.^ P)-oqf of delivery.] A party cannot maintain an action for the price of goods sold and delivered, until he has either delivered them, or done something equivalent to delivery, as, for instance, if he has put it in the vendee's power to take away the goods himself. Per Holroyd, J., Smith v. Chance, 2 B. and .A. 755 ; hut see Thompson V. Maceroni, 3 B. and C, 1.^ And where A. agreed to sell to B. certain goods, and earnest was paid, and the goods were packed in cloths furnished by B., and deposited in a building belonging to A., till B. should send for them, A. declaring at the same time that they should not be carried away till he was paid, it was held that this was not such a delivery as to entitle A. to maintain an action for goods sold and delivered. Goodall v. Skelton, 2 H. B. 316. See Simmons v. Sidft, 5 B. and C. 857.^ Where there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, within a specified time, and the seller delivers part, he can- not before the expiration of that time bring an action to recover the price of the part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered after the seller has failed in per- forming his contract, the latter may recover the value of the goods which he has so delivered. Oxendale v. Weiherell, 9 B. and C. 386." Shipton v. Casson, 5 B. and C. 383.'' «See Walker v. Dixon, 2 Stark. 281."= Where goods delivered on sale or return are not returned within a reasonable time, the value may be recovered in an' action for goods sold and delivered. Bailey v. Goldsmith, Peake, 56. To whom delivered.] Proof of a delivery to a third person, at the defendant's request, will support a count for goods sold and de- livered to the defendant. Per Cur. Bull v. Sihhs, 8 T. R. 328. A delivery to a carrier, by whom goods are usually sent by the plain- tiff to the defendant, is a delivery to the defendant; Hart v. Sattley, 3 Campb. 528 ; and it is now held, that if a tradesman order goods to be sent by a carrier, though he does not name any particular carrier, the moment the goods are delivered to the carrier, it ope- rates as a delivery to the purchaser. Per Cur. Button v. Solomon- son, 3 B. and P. 584; Groning v. Mendham, 5 M. and S. 189; but see Anderson v. Hodgson, 5 Price, 630. See 2 Saund. 47 k. (n). But in these and similar cases, a further question may arise, whether or not there has been a sufficient acceptance of the goods within the statute of frauds, so as to make the contract valid, when there is no note or memorandum in writing, as to which : vide infra. "2 Eng. Com. Law Reps. 461. » 2 Id. 348. y 10 Id. 3. '12 Id. 388. » 17 Id. 401. "11^.254. « 3 Id. 346. 212 Assumpsit for Goods sold and delivered. Delivery to partner.'] A question frequently arises in actlons.for goods sold and delivered, whether all the defendants are jointly liable as partners. Although the defendant cannot plead the non- joinder of a dormant partner in abatement (vide post, Assiimpsit, Defence^, yet the dormant partner may, at the option of the plain- tiff, be joined as defendant in the action. Llot/d i\ Archboirle, 2 Taunt. 327 ; a7id vide the cases cited, ivfra. Though a partner- ship is constituted by deed, it may, as already stated, ante, p. 1, be proved by parol evidence. An examined copy of an ansM^er in Chancery by two of (he defendants, to a bill of a third defendant, charging them as partners, and praying for an account, is good evi- dence to prove the partnership, as against the person so answering, Studdi/ V. Sanders, 2 D. and R. 34'//' Proof that the defendants suffered their names to be used as partners will be sufficient. If it can be proved that the defendant has held himself out to be a partner, not " to the world," for that is a loose expression, but to the plaintiff himself, or under such cir- cumstances of publicity as to satisfy a jury that the plaintiff knew of it, and believed him to be a partner, he is liable to the plaintiff in all transactions in which he engaged and gave credit to the de- fendant upon the faith of being such partner. Per Parhe, J., Dick-- enson v. Valpy, 10 B. and C. 140. Though, in point of fact, parties are not partners in trade, yet if one so represents himself, and by that means gets credit for goods for the other, both are liable. Per Lord Kenyon, De Berhoyn v. Smith, lEsp. 29; see Kell V. Nainhy, 10 B. and C. 21. And if the name of a clerk be used in a firm, with his own consent, he is liable to third persons as a partner, though he receives no part of the profits. Guidon v. Bob- .son, 2 Camph. 302. Persons may be partners in a particular con- cern or business, yet if they do not appear to the world as general partners, it will not be sufficient to constitute a general parinership, and make them liable in other cases not connected with such par- ticular business. De Berhom. v. Smith, 1 Esp. 29. And where there is a stipulation between A. B. and C. who appear to the world as co-partners, that C. sb.all not participate in the profit and loss, and shall not be liable as a partner, he is not liable as such to those persons who have notice of this stipulation. Alderson v. Pope, I Camph. 404 (??). The plaintiff must show that the name of the party was used in the firm with his own consent. See A/eicsome v. Coles, 2 Camph. 617; and see 2 H. BI. 225 (n), 4th ed. Thus where a person allows his name to remain in a firm, either exposed to the public over a shop-door, or to be used in printed invoices or bills of parcels, or to be published in advertisements, the knowledge of the party that his name is used, and his assent thereto, is the very •' 16 Eng. Coin. I. aw Reps. 03. Assumpsit for Goods sold and delivered. 213 ground upon which he is estopped from disputing his liability as a partner. Per Tindal, C. J., Fox v. Clifton, 6 Bingh. 794." The liability of a person as partner may also be proved by show- ing that he participated in the profits of the concern, and it is im- material whether he receives the profits for his own use, or as a trustee for others. Thus the executors of a deceased partner carry- ing on trade for the benefit of the estate are liable personally as co-partners. Wiglitmun v. Townroe, 1 M. and S. 412. And if a firm, consisting of several, carry on business f?i ihenajjie of the part- ners, the whole firm will be bound by acts done by him as repre- senting the firm. South Carolina Bank v. Case, 8 B. and C, 427,*' Vere v. Ashby, 10 B. and C. 293, However small the portion of profits received, it renders the party liable to all the engagements of the partnership. R. v. Dodd, 9 East, 527. And it is immaterial whether or not the party dealing with the concern knew at the time of such dealing, that the party whom he charges as a partner participated in the profits. Ex imrte Geller, 1 /lose, 297; see Lloyd V. Ashby, 10 B. and C. 288. The participation to render the party liable must be in the profits as such. Therefore a remuneration made to a traveller, or other clerk or agent, by a portion of the sums received by or for his mas- ter or principal, in lieu of a fixed salary, is only a mode of payment adopted to increase or secure exertion, and does not render the party a partner. Per Abbott, C. J., Cheap v. Cramond, 4 B. and AH. 670.^ So a person employed to sell goods, and who was to have for him- self whatever money he could procure for them above a stated sum, was held not to be a co-partner. Benjamin v. Porteoiis, 2 H. BI. 590 ; and see Cheap v. Cramond, 4 B. and A. (570.^ So if there be an agreement between A., the sole owner ofa lighter, and B., that the latter shall work the lighter, and in consideration of the working shall have half the gross earnings, this is only a mode of paying wages and not a partnership. Dry v. Boswell, 1 Campb. 329. So an agreement that a sailor shall receive a certain share of the pro- duce of the voyage in lieu of wages does not make him a partner with the owners of the cargo. Wilkinson v. Frazier, 4 Esp. 182, Mair v. Glennie, 4 J\L and S. 244, R. v. Hartley, Russ. and Ry. C. C. R. 139. But an agreement between two persons, that one of them should make purchases of goods for the other, and in lieu of brokerage should have one third of the profits arising from the sales, and should bear a certain proportion of the losses, makes the latter liable as a partner as to third persons. Per Holroyd, J., S?nith v. Watson, 2 B. and C. 409.'' A distinction has been taken between receiving a share of the profits, which renders the party liable as a partner, and relying on the profits as a fund for payment, which will not have that effect. Grace v. Smith, 2 W. Bl. 998. Ex parte 19 Eng. Com, Law Reps. 233. ' 15 Id.Q56 . e G Id. 536. i- 9 Id. 122. 214 Assumpsit for Goods sold and delivered. Hamper, 17 Ves. 404. Ex parte Rowlandson, 19 Ves. 461,2 H, BI. 23(5 (??), Ath ed. Where a dormant partner quits the partnership without any public notice, he will not be liable to persons subsequently dealing with the partnership, and who were ignorant that he had ever been a partner. Carter i\ Whalley, 1 Barn, and Adol. 11. DeVwery to n'ife.'] Where the husband and wife live together, and goods are delivered to the wife by her order, a jury may pre- sume the husband's assent. Bac. Ab. Baron and Feme, H. And where a husband is living in the same house with his wife, he is liable to any extent for goods which he permits her to receive there. If they are not cohabiting, then he is in general only liable for such necessaries as from his situation in life it is his duty to supply to her. Per Ld. Ellenhoroiigh, Waitkmanv. Wahejield, 1 Campb. 121. And it is the duty of the party seeking to charge the husband to make out by proof that he is liable. Per Lord Tenterden, Clifford V. Baton, 1 M. and M. 102, 3 S. and P. 15,' S. C. vide infra. Where a wife carried on business on her own account during the imprisonment of her husband, and after his return articles were furnished in the same business with his knowledge, it was held that he was liable for these articles, though the invoices and receipts were made out in the wife's name. Petty v. Anderson, 3 Bingh. 170.1' The presumption of the husband's liabihty may be rebutted by proof that the credit was given to her; Bentley v. Griffin, 5 Taunt. 356,^ Metcalfe v. Shaw, 3 Campb. 22 ; see Petty v. Anderson, 3 Bing. 170 ;^ or by proof of any other circumstances negativing the husband's assent ; see Montague v. Benedict, 3 B. and C. 531 ;™ as where the wife has a sufficient allowance from her husband dur- ing his absence, of which the plaintiff has notice. Holt v. Brien, 4 B. and A. 252." If the husband and wife have parted by consent, the former remains liable for necessaries supplied to the latter, un- less he makes her an adequate allowance ; Hodgkinson v. Fletcher, 4 Campb. 70, Hindley v. Marcpiis of Westmeath, 6 B. and C. 211 ;" and unless the plaintiff has notice of the separate maintenance. Rawlins v. Vandyke, 3 Esp. 250. It is sufficient notice, if the fact was notorious in the place where the parties live. Todd v. Stokes, 1 Ld. Raym. 444. And where the husband and wife had lived se- parate for many years, and the wife had resources of her own ade- quate to her situation, of which the plaintiff had notice, it was held that he could not sue the husband. LidJov) v. Wilmoi, 2 Staj^k. 88.p See Thomson v. Harvey, 4 Biin: 2177, Clifford v. Baton, 1 M. and M. 101.' A husband is liable for necessaries provided for his wife, pending a suit in the ecclesiastical court, and before alimony, i 14 Eng. Com. Law Reps. 188 tllId.R4. ' 1 Id. 131. » 10 Id. 205. « 6 Id. 418. "13 Id. 141. p 3 Id. 258. Jlssumpsit for Goods sold a7id delivered. 215 decreed, although a decree, afterwards made, direct the alimony to be paid from a date before the time when the necessaries were provided. Keegan v. Smith, 5 B. and C. 375.i And after a di- vorce for adultery in the husband, and a decree of alimony, the husband is liable for necessaries supplied to the wife, if he omit to pay the alimony. Hunt v. De Blacquiere, 5 Bingh. 550.'' After a divorce ab initio, the liability of the husband for the debts of his wife does not continue. Ansterj v. Manners, Goiv, 10.* It seems that an express promise made by the husband to pay a debt con- tracted by a wife after a separation and adequate allowance, will be binding upon him. HornhucUe v. Hanhury, 2 Stark. 1 77 ;* see 4 B. and A. 254." Where the wife elopes from her husband, and lives in adultery, the husband is not liable for necessaries supplied to her. Morris v. Martin, 1 Str. 647. And where the husband turns the wife out of doors, on account of her having committed adultery under his roof, he is not liable for necessaries furnished to her after her ex- pulsion. Ham V. Toovcy, Sehv. JV. P. 260. So if she elopes, though not with an adulterer ; Child v. Hardyman, 2 Str. 875 ; but if, after an adulterous elopement, he takes her back, he is liable for neces- saries subsequently supplied. Harris v. Morris, 4 Esp. 41. Where a wife leaves her husband under a reasonable apprehen- sion of personal violence, he is liable for necessaries subsequently furnished to her. Houleston v. Smyth, 3 Bingh. 127.^ So if he causelessly turns away his wife, or shuts his door against her ; Langworthy v. Hachmore, cited 1 Ld. Raym. 444, Raidyns v. Van- dyke, 3 Esp. 251 ; and a notice that he will not be answerable for her debts will not relieve him from his liability. Boidton v. Pren- tice, Sehv. JV. P. 263. Harris v. Morris, 4 Esp. 42. It lies upon the plaintiff to show, that under the circumstances of the separa- tion, or from the conduct of the husband, the wife had authority to bind him. Mainwaring v. Leslie, 1 M. and M. 18, 2 C. and P, 507,^ S. C. see ante, p. 214. The plaintiff must prove, either that the defendant and the wo- nrian to whom the goods were delivered are married, which is suffi- cient prima facie evidence of the defendant's liability, Car v. King, 12 Mod. 372, or that she and the defendant cohabited, and that she passed as his wife, with his assent, and it will be no defence that the plaintiff knew her not to be his wife. Watson v. Threlkeld, 2 Esp. 637. Robinson v. JVahon, 1 Campb. 245. But this only ap- plies where the woman assumes the defendant's name, lives in his house, and is part of his family. Ibid. And where the defendant has separated from a woman with whom he has lived as his wife, he is not liable for necessaries subsequently supplied. Munro v. De Chemant, 4 Campb. 215. 1 11 Eng. Com. Law Reps. 253. ' J5 Id. 535. •5ld.441. • 3 Id. 302. « 6 Id. 419. Ml Id. 64. " 12 Id, 238. 216 jhsumpsit for Goods sold and delivered. Dclivcnj to agcJiL] Where goods are delivered to an agent, the seller may in general sue the principal. The following has been laid down as the rule on this subject by Lord Tenterden : "If a person sells goods, supposing at the time of the contract that he is dealing with a principal, but afterwards discovers that the person with whom he has been dealing is not the principal in the transac- tion, but agent for a third person, though he may in the meantime have debited the agent with it, he may afterwards recover the amount from the real principal ; subject however to this qualifica- tion, that the state of the account between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if at the time of the sale the seller knows not only that the person who is nominally dealing with him is not principal but agent, and also knows w^ho the principal really is, and notwithstanding all that knowledge chooses to make the agent his debtor, then, accord- ing to the cases of .^fW/so/if. Gandasequi, (4 Taunt, bl A,) ^.uA Pat- erson v. Gandasequi, (15 East, G2), the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his election at the time when he had the power of choosing between the one and the other." Thomson v. Daven- port, 9 B. and C. 86.^ The mere knowledge at the time of the con- tract that there is a principal, his name not being disclosed, will not prevent the seller who has debited the agent from afterwards resorting to the principal. Ibid. Delivery to servant.'] A master is not responsible for goods or- dered by his servant, in his name, but without his authority, unless he has been in the habit of paying for goods so ordered. Maunder V. Conyers, 2 Stark. 281.y Pearce v. Rogers, 3 Esp. 214. If in one instance the master has employed the servant to buy on credit, he will be liable for any goods which the servant subsequently buys on credit, Hazard v. Treadicell, 1 Str. 506, Rushy v. Scarlett, 5 Esp. 76, aiid see Gilman v. Robinson, R. and M. 227, though he has given the servant money to pay for the goods in the latter instances. Weyland's case, 3 Salk. 234, 1 Ld. Rayvi. 225. Rushy v. Scarlett, 5 Esp. 76. When the master gives his servant money to pay for commodities as he buys them, and the servant embezzles the mo- ney, the master is not liable. Stubbing v. Heintz, Peaks, 47. Acceptance within the statute of frauds.] Where goods above the value of 10/. have been sold, and there is no note or memorandum in writing, and no earnest has been given, it frequently becomes a question whether or not there has been a sufficient acceptance of the goods, or part of them, within the statute of frauds, 29 Car. II. c. 3, s. 17. See the sec ante, p. 204. In order to satisfy the statute, there must be a delivery of the goods by the vendor with an intention of vesting the right of possession in the vendee, » 17 Eng. Com. Law Reps. 335. r 3 Id. 347. Assumpsit for Goods sold and delivered. 217 and there must be an actual acceptance by the latter with the in- tention of taking to the possession as owner, per Cur. Phillips V. Bistolli, 2 B. and C. 513 ;^ and there is not a sufficient accept- ance, so long as the buyer continues to have a right to object, either to the quantum or quality of the goods. Per Cur. Hanson V. Armitage, 5 B. and A.bb9.^ Thus where the defendant bought of the plaintiif 's agent twelve bushels of tares (part of a larger quantity in bulk), and the agent measured the twelve bushels and set them apart for the vendee to remain till called for, it was held that there was no acceptance. Hoice v. Palmer, 3 B. and A. 321." So where A. agreed to purchase a horse from B. for ready money, and to take him within a time agreed upon, and about the expira- tion of that time, A. rode the horse and gave directions as to its treatment, &c., but requested that it might remain in B.'s posses- sion for a further time, at the expiration of which he promised to fetch it away and pay the price ; these circumstances were held lo constitute no acceptance ; Tempest v. Fitzgerald, 3 B. and A. 680 ;" and when a horse was sold, and no time fixed for payment, and the horse was to remain with the vendors for twenty days without any charge to the vendee, at the expiration of which time the horse was sent to grass by the direction of the vendee, and by his desire entered as the horse of one of the vendors, it was held that there was no acceptance. Carter i\ louissant, 5 B. and A. 855.* So a delivery of goods to a wharfinger who has been accustomed to forward goods from the plaintiff to the defendant, which goods are lost while in the possession of the carrier, is not an acceptance within the statute. Hanson v. Armitage, 5 B. and A. 557." So when the purchaser appointed the mode in which the goods should be conveyed, and directed a third person in whose possession the goods were, to see them delivered and measured, and put up pro- perly, these circumstances were held not to amount to an accept- ance. Aste7j V. E?neri/, 4 M. and S. 262. The same principle w^as recognised in the following case : A. went to the shop of B. and Ca, and contracted for the purchase of various articles, each of which was under the value of 10/. ; but the whole amounted to 701. A separate price for each article was agreed upon. Some A. mark- ed with a pencil, othei's were measured in his presence, and others he assisted to cut from larger bulks. He then desired that an ac- count of the whole might be sent to his house, and went away; a bill of parcels was accordingly sent, together with the goods, which A. refused to accept. It was held that this was all one contract, and therefore within the statute of frauds, and that there was no acceptance of the goods to take the case out of that statute. Bal- dey V. Parker, 2 B. and C. 37." So where a hogshead of wine in the warehouse of the London Dock Company was sold for 13/., and a delivery order given to the vendee, but there was no assent on the » 9 Eng. Com. Law Reps. 162. » 7 Id. 191. ^ 5 Id. 303. • 5 Id. 419. "» 7 Id. 280. ' 9 Id. 16. 28 218 jissumpsii for Goods sold and delivered. part of the Dock Company to hold the wines as the agent of the vendee, it was held that there was no actual acceptance within the statute of frauds. Barlall v. Burn, 3 B. and C. 423 ;' and see Phi/lips V. Bistol/i, 2 B. and C. 51 1.^ Where goods of the value of 1 14/, were made to order, and remained in the possession of the vendor at the request of the vendee, with the exception of a small part which the latter took away, it was held that there was no ac- tual acceptance of these goods hy the buyer, within the 17th sec. of the statute of frauds, and that the plaintiff was not entitled to re- cover on the count for goods sold and delivered; Thom-pson v. Maceroni, 3 B. and C," sed gware, for the statute only requires an acceptance of part. The traveller of A. and Co. in London, having called upon 13. in the country for orders, B. gave an absolute order for a quantity of cream of tartar, and otlered to take a quantity of lac dye, at a certain price ; the traveller said the price was too low, but he would write to his principals, and if B. did not hear from them in one or tv;o days, he might consider that his offer was accepted. A. and Co. never wrote to B., but sent all the goods ; it was held that this was not a joint order for all the goods, so as to make the acceptance of the cream of tartar, the accept- ance of the lac dye also, within 29 Car. H. c. 3, s. 17. Price v. Lea, 1 B. and C. 156.' The circumstances in the following cases were held to constitute an acceptance within the statute. The defendant bought a quan- tity of hay from the plaintitF, and sold it to another person, by whom it was taken away, and it was held that the jury might presume an acceptance by the defendant. Chaplin v. Rogers, 1 East, 193. The defendant bought two horses from the plaintiff, a livery-stable keeper, and desired him to keep them at livery for him ; it was held that the plaintiff, by assenting to this order, and chang- ing the stables in which the horses had been kept, from his livery- stables, had relinquished his lien, and that there was a constructive delivery of them to the defendant. Elmore v. Stone, I Taunt. 458 ; see 3 B. and A. 324," 5 B. and A. 858,' 9 B. and C. 570. ■» Where A. bargained for a horse then in a stable, and soon afterwards Drought in a third person, and stated to him that he had bought the horse, and offered to sell it to him for a profit of 5/., it was held that it ought to be left to ^he jury to say, whether this was, or was not, a delivery (acceptance.) BlenJdnsop v. Clayton, 7 Taunt. 597;" and see Phillips v. Bistolli, 2 B. and C. 511.s Where the purchaser of goods at the time of sale wrote his own name upon a particular article. Lord Ellenborough ruled, that if his purpose was to denote that he had purchased it, and to appropriate it to his own use, it was a sufiicient acceptance within the statute. Hodgson v. Le Bret, I Campb. 233. An- derson V. Scott, Id. 235 (w); but see Baldey v. Parker, 2 B. ' 10 Eng. Com. Law Reps. 138. i 9 Id. 162. »" 10 Id. 3. ' 8 Id. 48. k 5 Id. 304. ' 7 Id. 281. » 17 Id. 445. » 2 Id. 230. Assumpsit for Goods sold and delivered. 219 and C. 37,0 ante, p. 217. Proctor v. Jones, 2 C. and P. 532.' Where the goods are ponderous and incapable of being handed over from one to another, there need not be an actual delivery, but . it may be done by what is tantamount, such as the delivery of a key of the warehouse in which the goods are lodged, or by delivery of other indicia of property. Per Ld. Kenyan, Chaplin v. Rogers, 1 East, 194. Elmore v. Stone, 1 Taunt. 460. A written order given by the seller of goods to the buyer, directing the person in whose care the goods are to deliver them to the buyer, is sufficient within the statute, Searle v. Keeves, 2 Esp. 598, if the person accept the order for delivery, and assent to hold the goods as an agent of the buyer. Bartall v. Burn, 3 B. and C. 426,i supra. Where A. agreed to sell to B. 20 hogsheads of sugar then in bulk, and filled up and delivered four, and afterwards tilled up the remaining 16, and gave notice to the defendant, who said he would take them away as soon as he could, this was held equivalent to an actual ac- ceptance of the 16 hogsheads. Rhode v. Jhwaites, 6 B. and C. 388.' The delivery of a sample, if considered to be part of the thing sold, is a sufficient acceptance, but otherwise, where it is a sample merely, and forms no part of the bulk. Taker v. West, Holt, 178.* Cooper V. Elston, 7 T. R. 14. Hinde v. JVIiitehouse, 7 East, 558. If the purchaser draws the edge of a shilling across the hand of the vendor, and returns the money into his own pocket, which in the north of England is called " striking off a bargain," this is no ear- nest, or part payment within the statute. Blenkinsop v. Clayton, 7 Taunt. 597.* VaJ.ue.'] Where the goods have been sold without any agree- ment as to the price, their value must be proved. For the cases in which the defendant is entitled to reduce the plaintiff's claim, on account of the inferiority of the goods, vide next page. Where the vendor of goods is only able to prove the delivery of a package, with- out any evidence of the contents, it will be presumed that it was filled with the cheapest commodity in which he deals. Clunnes v. Pezzey, 1 Campb. 8. If a seller agree to sell a machine at a cer- tain price, and put in materials superior to those contracted for, the purchaser is neither bound to pay a higher price, nor to return the machine. Wilmot v. Smith, 3 C. a7id P. 415." Defence. Evidence in reduction of damages.'] It frequently becomes a question in this action whether the defendant can give the bad quality of the article in evidence, in reduction of the value claimed by the plaintiff It seems that such evidence is admissible in the following cases. 1. Where the plaintiff claims only on a quantum meruit, and no • 9 Eng. Com. Law Reps. 16. r 12 Id. 248. 1 10 Id. 138. ' 13 Id. 206. ■ 3 Id. 66. '2 Id. 230. " 14 Id. 386. 220 Assumpsit for Goods sold and delivered. price lias been agreed upon. Bastcn v. Butter, 7 East, 479. Farns- u'ort/i V. Garrard, 1 Campb. 38. 2. Where there is a stipulated price, but the defendant, immedi- ately on discovering that the goods do not correspond with the con- tract, or after giving them a reasonable trial, gives notice to the plaintiir to take them back. If such notice is not given, and the defendant keeps the goods, he is liable to pay the stipulated price. Grimaldi v. Il'hite, 4 Ksp. 95. Fisher v. Samuda, 1 Campb. 190. Okellv. Smith, 1 Stark. 107.^ Groningv. Mendham, Id. 257;^ and see Basten v. Butler, 7 East, 584. Percival v. Blake, 2 C. and P. 518.^ .3. Where there is a stipulated price, and a warrranty as to the quality, in this case the vendee may retain the goods, and set up their inferiority in reduction of damages, although he has not of- fered to return them, or given any notice to the vendor. Cormack V. Gillis, cited 7 East, 480. Fie/der v. Starkin, 1 H. Bl. 1 7. Ger- maine v. Burton, 3 Stark. 32.y Poidton v. Lattimore, 9 B. and C. 259.^ But if the vendee proceed to use the goods, though war- ranted, without any notice to the vendor of their inferiority, and so deprive him of the means of ascertaining their real value, the vendor may recover his wdiole demand. Hopkins v. Ajjpleby, 1 Stark. 477.'' Still, if from the nature of the article it must be used, in order to ascertain whether the warranty has been com- plied with (as in the case of seeds), the purchaser may insist upon the warranty, without having given any notice. Poulton v. Latti- more, 9 B. and C. 259.'^ Where a bill of exchange has been given for the amount of goods sold, the defendant cannot afterwards question the reasona- bleness of the demand. Knox v. Whalley, 1 Esp. 159. Action bro^tght before credit expired.] If the action is brought before the credit has expired, the plaintiff will be nonsuited. And even where goods are fraudulently bought on credit, the seller cannot sue for goods sold and delivered, before the credit has ex- pired, though he might have maintained trover. Ferguson v. Car- rington, 9 B. and C. 59,- 3 C. and P. 457,"= S. C. What is suffi- cient proof of the time of the commencement of the action has been already stated, ante, p. 199. Where a person purchases goods, and agrees to pay for them in three months, by a bill at two months, which bill he afterwards refuses to give, an action for goods sold and delivered will not lie till the expiration of the five months. Mussen v. Price, 4 East, 146. Lee v. Risdon, 2 Marsh. 495.* But where goods were sold at three months' credit, the vendor agreeing to take the vendee's bill at three months' date, at the end of the first three months, if he wished for further time, and the vendee at the end of the three months did not give such bill. Lord EUenborough held that the vendor might bring an action for goods sold and delivered immediately. JVickson v. Jepson, » 2 Eng. Com. Law Reps. 316. ^ 2 Id. 380. ' 12 Id. 241. y 14 Id. 152. « 17 Id. 373. »2 Id. 475. " ]7 Id. 330. <= 14 Id. SST i 2 Id. 69. Assumpsit for Work mid Labour. 221 2 Stark. 227/ And where a bill is given for goods, and dishonour- ed, the vendor may sue for the price of the goods immediately, 7 Taunt. 3]2,f Hkkling v. Harday, 1 B. Moore, 61, S. C. Mussen v. Price, 4 East, 151 ; provided the bills are in the hands of the seller ; but if they are in the hands of third persons, that is a defence to the action, where the defendant may be called upon by those per- sons to pay the bills. Kearslake v. Morgan, 5 T. R. 513. Burden V. Hallen, 4 Bingh. 455.s If, by the contract, it was agreed that a bill at a certain date should be given, it operates as a giving of credit ; and although no bill should be given, the seller cannot sue the purchaser for goods sold and delivered, before the period when the bill, if given, would have become due. Mussen v. Pi'ice, 4 East, 154, supra. Upon a sale of goods at six or nine months, the purchaser, by not paying at the end of six months, makes his elec- tion to take credit for the nine months. Price v. Nixon, 5 Taunt. 338." As to the defence of illegality in this action, vide post, "Assump- sit — defence." ASSUMPSIT FOR WORK AND LABOUR. In an action for work and labour, the plaintiff must prove, 1. The contract ; 2. The performance of the work and labour at the defendant's request ; and 3. The value. The contract.'] Although a special contract has been entered into, the plaintiff is permitted, in certain cases, to recover upon the general indebitatus count. Whenever the duty of the defendant arising upon the execution of the consideration is simply to pay money, the usual and safest mode of pleading is, to declare in indebi- tatus assumpsit, as in the case of goods sold, work and labour done, arid other cases. Per Park, J., Streeter v. Horlock, 1 Bingh. 37.' And where there is a special agreement, the terms of which have been performed, it raises a duty for which an indebitatus assumpsit will lie. B. JV. P. 139. Robson v. Godfrey, Holt, 237." Studdy v. Sanders, 5 B. and C. 638.^ So if there is a special agreement, and the work has been done, though not pursuant to such agree- ment, the plaintiff may recover upon the quantum meruit, for other- wise he would not he able to recover at all. Ibid. But the defen- dant may refuse to take to the subject matter of the plaintiff's work and labour, where there is a deviation from the special contract ; and, in such case, the plaintiff cannot recover on the quantum me- ruit; see Ellis v. Hamlen, 3 Taunt. 52, 4 Taunt. 748 ; though it is otherwise where the defendant has acquiesced in and adopted the • 3 Eng. Com. Law Reps. 327. ' 2 Id. 1 18. 1 15 Id. 37. i- 1 Id. 126. i 8 Id. 233. » 3 Id. 85. ' 12 Id, 336. 222 Assumpsit for Work and Labour. deviations. Burn v. Miller, 4 Taunt. 745. Where there is a special contract, but additional work has been done, not included in the special contract, the value of the additional work may be recovered under the indebitatus count, although from the stipulations of the special contract as to credit, &c. the value of the work done under the special contract cannot be recovered. Rohson v. Godfrey, Holt, 236,"' 1 Stark. XJTo," S. C. Where (he special contract is so en- tirely abandoned that it is impossible to trace it, the workman shall be permitted to charge for the whole work done, by measure and value, as if no contract had ever been made ; but if not wholly abandoned, the contract shall operate as far as it can be traced, and the excess only shall be paid for according to the usual rate of charging. Pepper v. Burland, Peake, 103. Where there is a writ- ten contract it must be produced, although the plaintiff seeks to recover for extras, and the defendant has admitted one of the items to be extra. Vincent v. Cole, 1 M. and M. 257. But where a man is employed to do work under a written contract, and a separate order for other work is afterwards given by parol during the con- tinuance of the first employment, the written cohtract need not be produced by the plaintiff in an action for the second work. Reid V. Batte, 1 M. and M. 413. Where the defendant had contributed to the funds of a building society, and had been present at a meeting of the society, and party to a resolution that certain houses should be built, it was held that this made him liable to an action for work done in building those houses, without proof of his having an interest in them or in the land. Braithiaaite v. Skofield, 9 B. and C. 401.° Where the defenda^it requested the plaintiff to take care of and show his ((he defendant's) house, and promised to make him a handsome present, it was held that the plaintiff might recover a rea- sonable recompense for this work and labour ; Jeivry v. Busk, 5 Taunt. 302 ;'' but where a person performed work for a committee, under a resolution entered into by them, " that any service render- ed by him should be taken into consideration, and such remunera- tion be made as should be deemed right," it was held that an action would not lie to recover a recompense for such work. Taylor v. Breicer, 1 M. and S. 290. There is no implied assumpsit to pay an arbitrator for his trouble. Verany v. Warne, 4 Esp. 47 ; hut see 1 Goic, 8,1 Per Dallas, C. J. contra. A master may maintain assumpsit for the work and labour of his apprentice, against a person who harbours him after his deser- tion, for he may waive the tort, and sue on the implied contract. Foster v. Steimrt, 3 M. and S. 191. Under the general count for work and labour, the plaintiff may give evidence of a particular species of work and labour as a farrier, » 3 Eng. Com. Law Reps. C5. "2 Id. 388. " 17 Id. 404- p lid. 113. q 5 Id. 440. Assumpsit for Work and Labour. 223 and the medicines administered by him may be considered as ma- terials within the count ; Clarke v. Memford, 3 Campb. 37 ; and see.Meehe v. Oxlade, 1 A^. R. 289 ; but where the claim " for ma- terials found," &c. was omitted in the count for work and labour, it was held that the plaintiff, who sought to recover for building a house and furnishing the timber, could not recover for the latter under the count for goods sold and delivered. Cotterell v. Apsey, 6 Taunt. 322.'" An action for work and labour will not lie by a person who manufactures a chattel out of his own materials. The rule is thus laid down by Mr. Justice Bayley : if you employ a man to build a house on your land or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labour and your materials to any other person. Having be- stowed his labour at your request on your \jiaterials, he mav main- tain an action against you for work and labour. But if you employ another to work up his own materials in making a chattel, then he may appropriate the produce of that labour and materials to any other person. No right to maintain any action vests in him during the progress of the work ; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered ; or if the employer refuses it, a special action on the case for such re- fusal, but he cannot maintain an action for work and labour, be- cause the labour was bestowed on his own materials, and for him- self, and not for the person who employed him." Atkinson v. Bell, 8 B. and C. 283.' Contract. — Repairs of ships.'] Registered ownership (that is, proof of the register, and that such register has been made with the assent of the parties therein named) is prima facie evidence of the liability of those parties for the repairs of the ship ; Cox v. Reid, R. and jM. 199 ; but such evidence may be rebutted by proof of the beneficial interest having been parted with, and of the legal owner having ceased to interfere with the management of the ship. Jennings v. Griffiths, R. and M. 42. Young v. Brander, 8 East, 10. The true question in matters of this description is, " Upon w^hose credit was the work done ?" Per Abbot, C. J., Jennings v. Griffiths, R. and M. 43, So a person who takes a share in a ship, under a void conveyance, is not liable for articles furnished to the ship, unless credit be given to him individually, or he holds himself out as owner. Harrington v. Fry, 2 Bingh. 179.* An undertaking by the defendant's attorney " to appear for Messrs. T. and M. joint owners of the sloop A." is evidence against the defendants of the joint ownership. Marshall v. Cliff, 4 Campb. 133. Whether a mortgagee of a ship, before possession, was liable to repairs, was ' 1 Eng. Com. Law Reps. 400. • 16 Id. 2I&. ' 9 Id. 370. 224 Jlssumpsit for Work and Labour. formerly much doubted ; see Briggs v. Wilkinson, 7 B. and C. 30 ;» but now, by recent iicts of parliament, when a transfer is made only as a security for the payment of debts, by way of mortgage, or of assignment to trustees by way of sale, on a statement being made in the book of registry, and in the indorsement on the certi- ficate of registry to that effect, the person to whom the transfer is made, or any other claiming under him, is not to be deemed the owner, nor is the person making such transfer to be deemed to have ceased to be an owner, except so far as may be necessary for the purpose of rendering the ship transferred available by sale or otherwise, for the payment of those debts, to secure the payment of which the transfer was made. 4 Geo. IV. c. 41, s. 43, 6 Geo. IV. c. no, s. 45. Abbott 07i shipping, 17, bth ed. Performance at the defendant's request.'] The plaintiff must prove a performance of the work and labour, according to the terms of the contract, or if there is a deviation from those terms, an acquiescence by the defendant in the deviation, vide supra. Thus in an action to recover the value of a riding-habit, for which the defendant's wife had been measured, but which was returned to the plaintiff on the day on which it was delivered, it was ruled to be incumbent on the plaintiff to prove that the habit was made agreeably to the order. Hay den v. Hayward, 1 Campb. 180. So a herald who sues for making out a pedigree, is bound to give some general evidence of the truth of the pedigree. Townsend v. JVeal, 2 Campb. 191. In genera], the contract will be evidence that the work has been performed at the defendant's request, or the request may be infer- red from the defendant's acquiescence in the work which is carry- ing on upon his premises, or from his voluntarily availing himself of the benefit of the plaintiff's services. 3 Stark. Ev. 1763. Where A., who was employed by the defendant to transport goods to a foreign market, delegated the entire employment to the plaintiff, who performed it without the privity of the defendant, it was held that the plaintiff could not recover from the defendant a compensa- tion for such service. Schmaling v. Tomlinson, 6 Taunt. 147.' Value.'] In what manner the value of the work is to be calculat- ed where there is a special contract and deviations from it, has been already mentioned, ante, p. 221. In an action for work and labour as a surveyor, Lord Kenyon held that the plaintiff was only entitled to a reasonable compen- sation, not to be estimated by the amount laid out by the defendant in the building, which is the custom with surveyors. Upsdell v. Stewart, Peake, 193. But in a subsequent case. Lord Ellen borough left it to the jury to say whether the usual commission of five per cent, was a vicious or unreasonable mode of charging, and the jury « 14 Eng. Com. Law Reps. 10. ' 1 Id. 336. Assumpsit for Monei/ paid. 225 found for the plaintiff for the whole demand. Chapman 11. De Taste, 2 Stark. 294 p^ see also Maltby v. Christie, 1 Esf. 340. Defence. Where the work has not been executed according to the con- tract, the party for whom it is executed may repudiate it, and in such case the plaintiff cannot recover. Ellis v. liamlen, 3 Taunt. 52, ante, p. 221. So if the defendant has received no benefit, from the work having been improperly executed by the plaintitf, the latter cannot recover. Farnsimrth v. Garrard, 1 Camph. 83. Duncan v. Blundell, 3 Stark. 6.^ Montriou b. Jefferies, R. and M. 317, ante, p. 200. Thus an auctioneer, through whose gross negligence the sale be- comes nugatory, can recover nothing for his services. Dcnew v. Da- verell, 3 Campb. 451. But where the defeiftlant has derived some benefit from the plaintiff's service, he must payp'o tanto; Farns- worth V. Garrard, 1 Campb. 38 ; and if he seeks to reduce the plaintiff's damages, on account of a non-compliance with the terms of the contract, he should, as it seems, give notice to the plaintiff that he considers the contract not complied with. See ante, p. 220. However, in a late case, where the plaintiff had contracted to re- pair some chandeliers for lOZ., and returned them incompletely re- paired, in an action for work and labour it was held that as the plaintiff had not performed his part of the. contract, he could not recover any thing, though the jury found that the repairs were worth 5/. Sinclair v. Boirles, 9 B. and C. 92. ^ As to the defence of illegality in this action, vide post, "As- sumpsit — defence." ASSUMPSIT FOR MONEY PAID. The plaintiff, in an action of assumpsit for money paid, must prove, 1. The payment of money ; 2. That it was paid at the re- quest of the defendant. The payment of 7noney.'\ The plaintiff must prove that money was paid, the giving a security as a bond or warrant of attorney is not sufficient, Taylor v. Higgins, 3 East, 169, Maxwell v. Jameson, 2 B. and A. 51, unless, perhaps, where a bill or note is taken as payment. Barclay v. Gooch, 2 Esp. 571. So stock cannot be con- sidered as money. Jones v. Brindley, 1 East, 1. 'J'he plaintiff must prove that the money paid was his money. Thus an under-tenant, whose goods have been distrained and sold by the original landlord, for rent due from his immediate tenant, cannot maintain an action for money paid the use of the latter ; for immediately on the sale under the distress, the money paid by the purchaser vests in the w 3 Eng. Com. Law Reps. 353. » 14 Id. 145. y 17 Id. 340. 29 226 Jlssumpsit for Money paid. landlord, in satisfaction of the rent, and never was the money of the under-tenant. Moore v. Pyrhe, 11 East, 52. The defendant's request Ji The plaintiff must prove a request by the defendant, express or implied. Thus if the plaintiff has paid flv^ "loney without the defendant's request, though to discharge a just debt, no action will lie, Slohes t\ Lewis, 1 T. R. 20, as where a broker purchases stock, to fultil a contract entered into by him for his principal, but which his principal refuses to make good. Ciiihl V. Morlei/, 8 T. 11. Gl 1. So where the party to whom the stock was contracted to be sold, on the defendant's refusal to transfer, bought the stock himself, and brought assumpsit for money paid, to recover the difference in the price of the stock, it was held that the action could not be sustained. Lightfoot v. Creed, 8 Taunt. 268.'- A subsequent assent to the payment will be evidence of a previous request. 1 Saund. 2G4, (??), 5th ed. A payment by the plaintiff, under a legal obligation, will also be evidence of a previous request, as where one person is surety for another, and is called on to pay, the money paid may be recover- ed, though the surety did not pay the debt by the desire of the principal. Per Ld. Kenyon, Exalt v. Partridge, 8 T. R. 310. In such an action, the plaintiff must prove the contract of indemnity, and that it was entered into at the request of the defendant, and that he has paid the money guaranteed. So where several arc sureties, and one is compelled to pay the whole, he may recover from each-of his co-sureties a rateable proportion of the money so paid ; Coicell v. Edwards, 2 B. and P. 268, Deering v. IVinche/sea, id. 270 ; but there is no such contribution between wrong-doers. Merryweather v. A'ixan, 8 T. R. 186. Where one bail sues his co- bail for contribution, he must prove the judgment, as well as the execution. Beldon v. Tankard, 1 Marsh. 6." Where the goods of the plaintiff, in the house of the defendant, are seized for rent due from the defendant, the plaintiff may recover in this action the money which he has paid to redeem them. E.xall v. Partridge, 8 T. R. 308. Dawson v. Linton, 5 B. and A. 521." So an accommodation accep- tor, who has defended an action on the bill, at the request of the drawer, may recover the costs of such action, as money. Hoices v. Martin, 1 Esp. 162. So also the indorser of a bill who has been sued by the holder, and paid him part of the amount of the bill, may recover that amount in an action for money paid against the acceptor. Pownal v. Fcrrand, 6 B. and C. 429." But he cannot recover the costs of the former action. Dawson v. Morgan, 9 B. and C. 618." A person who pays a bill for the honour of one of the parties to it may sue him for money paid. Smith v. JVissen, 1 T. R. 269. But he must prove that a formal protest was made before the payment. Vandeivall v. Tyrrell, 1 M. and M. 88. « 4 Eng. Com. Law Repi. 100. » 4 Id. 326. ^ 7 Id. 179. • 13 Id. 230. * 17 Id. 457. Assumpsit for Money lent. 227 Bail may rcover, as money paid, the expenses incurred by them in taking their principal, but not the costs of an action against them, unadvisedly defended. Fisher v. Fallous, 1 Esp. 171. Mo- ney paid lies against a ship owner for money supplied to the cap- tain, either in a foreign or English port, for necessary repairs, pro- vided it be so applied, to prove which the captain is an admissible witness. Rocher v. Busker, 1 Stark. 27."= Palmer v. Gooch, 2 Stark. 428.' Robinson v. Lyall, 7 Price, 392. Where a carrier, by mistake, delivered to B. goods sold and consigned to C, and B. appropriated the goods, and the carrier, on demand, without ac- tion, paid C, the court ofC. P. held that the carrier might recover from B. the sum so paid, as money paid to his use ; Brown w. Hodg- son, 4: Taunt. 189; but Lord Ellenborough, in a similar case, ruled that it was necessary to declare specially. Si% v. Laing, 4 Campb. 81. Where a party is compelled to pay money in consequence of his own neglect, Capp v. Topham, 6 East, 392, or breach of duty, Pitcher V. Bailey, 8 East, 171, the law raises no implied promise to repay him. If the money is paid in furtherance of an illegal transaction, it cannot be recovered. Mitchell v. Cockburne, 2 H. Bl 380. Aubertv. Maize, 2 B. and P. 380; and see Cannan v. Bryce, 3 B. and A. 1 79,^ and post, p. 232. ASSUMPSIT FOR MONEY LENT. In an action of assumpsit for money lent, the plaintiff will only have to prove the loan of his money. Of this a promissory note given by the defendant to the plaintiff will be evidence. Stcfry v. Atkins, 2Str. 719 ; and see ante, p. 175. To establish a loan, it is not sufficient merely to prove the payment of money to the defend- ant, for in such case the presumption of law is that the money is paid in liquidation of an antecedent debt ; Welsh v. Seaborne, 1 Stark. 474;" but if the plaintiff can show any money transactions between the defendant and himself, from which a loan may be in- ferred, or any application by the defendant to borrow money at the time, this, coupled with the passing of the money, will be evi- dence of a loan. Carey v. Gerrish, 4 Esp. 9. If a parent advances money to a child, it is supposed to be by way of gift. Per Bayley, J., Hick V. Keats, 4 B. and C. 71.' Interest is not recoverable on money lent, unless there be a contract or usage to that effect; Gal- lon V. Bragg, 15 East, 223 ; but if the course of dealing between the parties be such, interest upon interest may be recovered. JVew- ell V. Jones, C. and P. 124." vide infra. A lender wlio has received goods as a security, may recover in" an action for money lent, with- out proving that he has returned or tendered the goods. Lawton V. JVeicland,2Stark. 73.' • 2 Eng. Com. Law Reps. 280. 'Sid. 416. e 5 Id. 225. >> 2 Id. 475. '10 Id. 277. "■ 19 Id. 304. '3 Id. 251. 228 ASSUMPSIT FOR MONEY HAD AND RECEIVED. Ill an action for money had and received, the plaintiff must prove the receipt of the money by the defendant, and his own title to re- cover it. Tliis action cannot be maintained if it be against equity and good conscience that the money should be recovered. Thus where A. purchased an annuity for her life, which was regularly paid up to the lime of her death, but no memorial of the grant of the annuity was enrolled, it was held that A.'s executrix could not on that ground insist that the contract was void, and recover back the consideration money paid for the annuity. Davis v. Bryan, 6 B. and C. 05 1."* Receipt of fnoneij.] The plaintifT must prove that inoney has been received, and therefore an action for money had and received will not lie to recover stock : Nightingal v. Dcvisme, 5 Burr. 2589 : and it has been held that it will not lie against a finder of bank- notes, to recover their value; A'oi/es v. Price, H. 16 Geo. 111. Select Ca. 242, Chitti/s Bills, 420, 5lh ed. ; though, if not produced at the trial, the receiptof their value will be presumed, Chitti/,2ibisup. ci- ting Longchamp v. Kenny, Dougl. 138 ; see Harrington v. Macmor- ris, 5 Taunt. 228 ;" vide supra. The value of provincial notes re- ceived as money, may be recovered in this action. Pickard v. Bankes, 13 East, 20. Fox v. Cutworth, cited 4 Bingh. 179." The principle in all the cases is, that if a thing be received as money, it may be treated and recovei'ed as such. Per Best, C. J., Spratt V. Hobliouse, 4 Bingh, 179,° The plaintiff must give some evidence of a particular sum ; and if he gives no evidence of the amount due he must be nonsuited. Harvey v. Archhold, 5 D. and R. 504 ;" and see Bernosconi v. Anderson, 1 M. and JM. 183, post, p. 230. Receipt of mo7iey hy the defendant.'] The plaintiff must prove that the money has been received to his use hy the defendant. The mere bearer of money from one person to another, cannot be sued. Coles V. Wright, 4 Taunt. 198. So an agent who has paid money over, pursuant to the directions of the party depositing it with him, and without notice of the plaintiff's title, cannot be sued; but merely passing it in account is not a payment, Buller v. Harrison, Coup. 505, Horsefallv. Ha?idley,8 Taunt. 130,i and until there has been a change of circumstances by his having paid over the money to his principal, or done something equivalent to it, he remains liable. Cox v. Prentice, 3 M. and S. 344. So if he pays it over, after notice that the right to it is disputed. Edwards v. Hodding, 5 Taunt. 815.'" Vide ante, p. lAl. A receipt signed by an agent for his principals for " S. and W.," " W. H." is not evidence to support an action for money had and received against the agent. "18 Eng. Com. Law-Reps. 291. « 1 Id. 88. • 13 Id. 395. P 10 Id. 203. 1 4 Id. 46. ' 1 Id. 277. Assumpsit for Money had and received. 229 Edden v. Read, 3 Camph. 339. Where money in litigation between tv.'O parties has by consent been paid over to a stakeholder in trust for the party entitled, it can only be recovered from the stakehold- er, and not from the original debtor. Ker v. Osborne, 9 East, 378. On failure of or u-ithout consideration.'] Where money has been paid on a consideration which has wholly failed, it may be recover- ed in this action by the party who has paid it. Thus if an an- nuity be defective, and the deeds are set aside, the consideration money may be recovered. Shore c. IVehh, 1 T.R. 132. So where one of several securities securing the annuity fails. Scwfield v. Gouland, 6 East, 241. In such an action the deeds should be pro- duced and their execution proved, and the setting tjiem aside proved by (he production of the rule of court. 2 Starlc. Ev. 215 (?i). The receipt of the money must also be proved. The defendant in these cases may deduct the payments made by him in respect of the an- nuity. Hicks V. Hicks, 3 East, 12. See Davis v. Bryan, 6 B. and C. 651,^ a7ite, p. 228. Where a scheme for establishing a tontine was put forth, stating that the money subscribed was to be laid out at interest, and after some subscriptions had been paid by the direc- tors, in whom the management of the concern was vested, but before any part of the money was laid out at interest, the directors resolved to abandon the project, it was held that each subscriber might, in an action for money had and received, recover the whole of the money advanced by him, without any deduction for expenses. JVockells V. Crosby, 3 B. and C. 814.* So the money paid for the purchase of shares may, under similar circumstances, be recovered. Kempson v. Saunders, 4 Bingh. 5." Where a fixed sum has been paid to the parish by the putative father of a bastard, and the child dies, the residue of the sum unexpended maybe recovered in this action. Watkins v. Hoivlett, 1 B. and R 1.^ • In cases of forgery.'] Where a party paying money upon a forged instrument has not been guilty of any want of due caution, which in consequence of the character which he fills he is bound to exer- cise, and has not by his conduct affected the rights of any other parties to the instrument, he may in general recover back the money paid by him, as money paid under a mistake. A person who discounts a forged navy bill, .may recover back the money, as money had and received to his use. Jones v. Ryde, 5 Taunt. 488,^ 1 Marsh. 1 57, S. C. So in the case of forged bank-notes. ^ Per Gibbs, C. J., ibid. So where a banker by mistake paid a bill for the honour of a customer whose name was forged, but discovering the mistake gave notice thereof to the holder in time to enable him to give notice of non-payment to the indorscrs, it was held that • 13 Eng. Com. Law Reps. 290. ' 10 Id. 237. « 13 Id. 321. " 5 Id. 1. » 1 Id. 166. 230 Assumpsit for Money had and received. the money was recoverable from the holder. Wilkinson v. Johnson, B. and C. 428.'^ And so where the plaintiffs discounted for the defendants a bill of exchange, which the latter did not indorse, and the signatures of (he drawer and acceptor (the latter of whom kept an account with tlic plaintilfs) were forged, it was ruled that the defendants were liable to refund the money. Fuller v. Smith, R. and M 49. But where the party paying the money has the means of know- ing, or is bound to know, tiiat the handwriting is forged, or where by his delay in discovering his mistake he has deprived the holder of the means of resorting toother parties on the bill, he will not be allowed to recover. Thus where two bills were drawn upon the plaintitr, one of which he accepted, and both of which he paid, and it appeared that the handwriting of the drawers was forged, it was held that it was incumbent upon the plaintiff to be satisfied that the bill drawn upon him was the drawers hand, before he ac- cepted or paid it, and that he could not recover the amount. Price V. Mai, 3 Burr. 1354, 1 IV. Bl 390, S. C. see B. and C. 434.^ So where a banker paid a bill which purported to be accepted paya- able at his house by one of his customers, and the forgery of the acceptor's name was not discovered until the end of a week, it was held that the money could not be recovered from the holder. Smith V. Mercer, 6 Taunt. 76 ;>' see 3 B. and C. 435.^ Where a check drawn by a customer upon his banker for a sum of money describ- ed in the body of the check in words and figures, was afterwards altered by the holder, who substituted a larger sum for that men- tioned in the check, but in such a manner that no person in the ordinary course of business could observe it, and the banker paid to the holder this larger sum, it was held that the banker could not charge his customer for any thing beyond tHe sum for which the check was orginally drawn. Hcdl v. Fuller, 5 B. and C. 750,^ 8 D. and R. 464, S. C. Money paid under a mistahe of facts or of lau:'] Money paid under a mistake of facts, and which the party receiving it has no claim in conscience to retain, is recoverable as money paid with- out consideration. See the cases last cited, and Bize v. Dickason, 1 T. R. 285. Mihies v. Duncan, 6 B. and C. 750.» But where money is paid with a knowledge of all the facts, but under a mistake of the law, it cannot in general be recovered : Bilbie v. Ltanley, 2 East, 469 ; Brisbane v. Dacres, 5 Taunt. 143;* Cartivright v, Row- ley, 2 Esp. 723 ; though it has been paid under a protest. Brown V. M'Kinally, 1 Esp. 279. Where an article is sold, which turns out to be of less value than the price given for it,' the extra price, if there be no fraud, cannot be recovered back ; Per Le Blanc, J., Cox V. Prentice, 3 M. and S. 349 ; but where parties agree to abide «10Eng. Com. Law Reps. 140. r 1 Id. 312. ' 12 Id. 368. MSId. 29S. " 1 Id. 43. Assumpsit for Money had and received. 231 by the weighing of any article at any particular scales, and in the weighing, an error, not perceived at the time, takes place from an accidental misreckoning of some weight, and the thing is reported of more weight than it really is, and the price is paid thereupon, money had and received is sustainable. Per Lord Ellenboroiigh, ibid. A tenant who has paid rent to his landlord, and has afterwards been ejected by a third person, who sues him for the mesne profits, and recovers for the period during which the tenant has paid his rent, may recover the rent so paid from his landlord in an action for money had and received, the landlord not having set up any title at the trial of the ejectment. JVewsome v. Graham, 10 B. and C. 234. See 1 Freeman, 479 {note d), 2d ed. As to money had and received on rescinding a contract, see ante, p. 141, and p. 190. Money obtained by fraud at^ duress, <^c.] Where money has been obtained by fraud or duress, this action lies to recover it ; and money fraudulently obtained, may be recovered at law, although the defendant may be entitled to it by the ecclesiastical law. Crock- ford V. Winter, 1 Campb. 124. So where the defendant married the plaintiff, living his former wife, and received the rents of her land, they were held recoverable in this form of action. Hasser v. Wallis, 1 Salk. 28. So where the defendant fraudulently colluded with J. S. who was insolvent, to obtain v^inesfrom the plaintiff, the proceeds of which eventually came to the defendant's hands, in sa- tisfaction of a debt due to him from J. S., the plaintiff was held en- titled to recover in this action. Abbotts v. Barry, 2 B. and B. 369,"> 5 B. Moore, 98, S. C. So where a man has been compelled by duress to pay money, it may be recovered in this action, as where he has paid an exorbitant sum to redeem his goods from pawn. Astley v. Reynolds, 2'Str. 915. ^'here goods not liable to seizure are seized by a revenue officer, who extorts money to release them : having v. Wilson, 4 T. R. 485 ; where a corporation officer extorts a fee for granting a license ; Morgan v. Palmer, 2 B. and C. 729,'' where a sheriff claims and receives a larger fee than he is entitled to; Deiv v. Parsons, 2 B. and A. 508 ; where a toll-keeper exacts an illegal toll ; Parsons v. Bland.y, Wightio. 22 ; this action is maintainable. But where re- plevin would be the proper remedy, this action does not lie, as where money has been paid to release goods taken as a distress ; Lindon v. Hooper, Coioj). 414 ; and where an action is brought, and the defendant pays the demand " without prejudice," he can- not afterwards recover the money so paid. Brown v. M'Kinally, 1 Esj). 279. So money recovered by legal process, though in fact not due, cannot be recovered by the defendant in the former action. Marriott v. Hampton, 7 T. R. 269 ; but this action lies to recover • 6 Eng. Com. Law Reps. 157. * 9 Id. 232. 232 jlsswnpsitfor Moyuy had and received. money in the hands of an overseer, levied on a conviction which has been quashed. Fchham v. Terry, cited 1 T. R. 387. In cases of illegal contracts.'] Where money has been paid, in pursuance of an illegal contract, it is in certain cases recoverable, as money had and received to the use of the party paying it. It may be recovered in the following cases ; see 1 H. Bl. G5 {n), 4th ed. I. When the contract remains executory though the plaintiff and defendant be in jmri delicto. Tappendall v. Randall, 2 B. and P. 467. Aubertv. Walsh, 3 Taunt. 277. Busk v. Walsh, 4 Taunt. 290, per BuUcr, J. Loicry v. Bourdieu, Dougl. 468. A distinction, however, has been taken between contracts merely illegal, and contracts to perform some act malum in se, or grossly immoral, in which case it is said, the courts will not interfere to compel the re- payment of the money, even though the contract remains execu- tory ; but the distinction between mala prohibita and mala in se has been frequently denied. See Farmer v. Russel, 1 B. and P. 298. Aubert v. Maze, 2 B. and P. 371. Cannan v. Bryce, 3 B. and A. 179.^ II. The money is recoverable from a stakeholder into whose hands it has been paid, upon an illegal consideration executed by the happening of the event upon which the wager is made ; pro- vided the money has not been paid over by the stakeholder to the other party, or provided the plaintiffhas demanded it before it was paid over ; or provided that the stakeholder has paid over the mo- ney without the authority of the plaintiff. Cotton v. Thurland, 5 T. R. 405 ; Bate v. Cartieriglit, 7 Price, 540 ; Smith v. Buckmore, 4 Taunt. 474; and see R. and M. 214 (71). Hastelow v. Jackson, 8 B. and C. 221.^ III. The money is recoverable, though the con- tract be executed, provided the plaintiff be not in pari delicto with the defendant. Jacques v. Withy, 1 H. Bl. 65. Williams v. Hedley, 8 East, 378. IV. The agent of a party to an illegal contract, who receives money under it, to the use of his principal, cannot set up the illegality of the transaction in an action brought against him by his principal. Tenant v. Elliott, 1 B. and P. 3 ; Farmer v. Rus- sel, id. 296 ; but see M'Gregor v. Loive, R. and M. 37. The money isnot recoverable where the contract is executed, and the plaintiff is in pari delicto with the defendant. Andree v. Fletcher, 3 T. R. 266. Hoicson v. Hancock, 8 T. R. 575. Vandyk v. Hewett, 1 East, 96. Thistleixood v. Cracroft, 1 M. and S. 500. Stokes v. Twitchin, 8 Taunt. 492.= On transfer of debt by arrangement between three parties.'] Where A. was indebted to B. for brokerage, and B. was indebted to C. for money lent, and B. gave an order to A. to pay C. the sum due from A. to B. as a security, on which C, lent B. a further sum « 5 Eng. Com. Law Reps. 255. f 15 Id. 204. t 4 Id. 183. Jlssumpsit for Interest. 233 and the order was accepted by A., it was held (hat on A.'s refusal to comply with the order, C. might maintain an action for money had and received against him. Israel v. Douglas, 1 H. Bl. 239; and see Wilson v. Cou-pland, 5 B. and A. 228.'' It seems, however, that the agreement must be such, that the debt due from B. to C. is thereby extinguished ; Ciixon v. Chadley, 3 B. and C. 591 ;' Whar- ton V. Walker, 4 B. and C. 165 ;'' and tlie debt transferred must also be a demand for money had and received. Thus where A. being indebted to B. gave him an order upon C, his (A.'s) tenant to pay the amount of the next rent that would become due, and B. sent the order to C, but had not any direct communication with him upon the subject, and at the next rent day C. produced the order to A., and promised to pay the amount to B., and upon receiving the difference between that and the whole rent, A. gave a receipt for the whole, it was held that B. could not recover the amount of the order from C, either in an action for money had and received, or upon an account stated. Wharton v. Walker, 4 B. and C. 163.'' Where there is a defined and ascertained debt due from A. to B., and a debt to the same or a larger amount due from C. to A., and the three agree that C. shall be B.'s debtor instead of A., and C. promises to pay B., in an action by the latter against C. it is incum- bent on him to show, that at the time when C. promised to pay B. there was an ascertained debt due from A. to B. Fairlie v. Doivton, 8 B. and C. 395.^ In caselof partnership.'] Where two persons agree to divide the profits of an agency between themselves, and one of them receives on account of such agency a certain sum of money, the other cannot maintain this action for a moiety, it being a partnership transaction, and there being no account settled. Bovell v. Hammond, 6 B. and C. 149.° Bayley dub. See Coffer v. Brian, 3 Bingh. 54," \0 B. Moore^ 341, s. a ASSUMPSIT FOR INTEREST. The principle upon which interest is claimed is, that it is a matter of contract between the parties. "It is now established as a general principle that interest is allowed by law only upon mercantile se- curities ; or in those cases where there has been an express promise to pay interest ; or where such promise is to be implied from the usage of trade or other circumstances." Per Abbott, C. J., Mug- gins V. Sargent, 2 B. and C. 349." Many cases are to be found at variance with the rule as above stated, in which interest has been allowed, on the ground that the money was payable at a day certain, a ground now clearly unten- h 7 Eng. Com. Law Reps. 77. ^ 10 Id. 191. MO Id. 302. ' 15 Id. 24(^. » 13 Id. 126. "II Id. 25. »9 Id. 101. 30 234 jissumpsit for Interest. able. See Foster v. Weston, 6 Bingh. 714.p Thus it has been held that interest is payable on a sum awarded to be paid on a cer- tain day. Pinhorti v. Tuchington, ,3 Ca?7iph. 468 ; and see Sicin- ford V. Burn, Gow, O.-j So in C/ialie v. Duke of York, 6 Esp. 40, which was an action for goods sold and delivered, Lord Ellenbo- rough said, that the mere settling the balance did not entitle the party to interest from that time, nor was he so entitled unless a time was fixed for the payment of the money, from which time only interest could be claimed. See also Blaney v. Henricks, 2 Wils. 205. A larger rule than that abovenientioned was laid down by Best, C. J., in Arnottv. Redfeni, 3 Bingh. 259.'' "However a debt is contracted, if it has been wrongfully withheld by a defendant, after the plaintiff has endeavoured to obtain payment of it, the jury may give interest in the shape of damages for the unjust detention of the debt." Upon this opinion, Lord Tenterden has observed, that if adopted as a general rule, it might frequently be made a question at Nisi Prius, whether proper means had been used to obtain pay- ment of the debt, and such as the party ought to have used, which would be productive of much inconvenience. Page v. Newman, 9 B. and C. SSL" In case of mercantile instruments.'] The mercantile instruments which carry interest are, Bills of Exchange and Promissory Notes. Where the bills or note specifies that interest shall be paid, it is payable from the date.; without such words, from the time when the bill or note becomes due. Kennerley v. JVash, 1 Stark, 452.* Orr V. Churchill, 1 H. Bl. 227. Doman v. Dihdin, Ry. and Moo. 38 L Upon a bill or note payable on demand, interest Js given from the time of the demand proved. Blaney v. Hendricks, 2 W. Bl. 76 L But where by the terms of the note, the maker promised to pay legal interest on demand, Lord Ellenborough held that this must mean from the date of the note. Hopper v. Richmond, 1 Stark. 508." Against the drawer of a bill interest is only recoverable from the time of his receiving notice of dishonour. Wcdker v. Barnes, 5 Taunt. 240.^ 1 Marsh. 30, S. C. See Bayley on hills, 280. It is said by Bayley, J., that in action on a bill, as the interest is in the nature of damages, the jury may disallow it in case they are of opinion that the delay of payment has been occasioned by the default of the holder. Cameron v. Smith, 2 B. and A. 308. In cases of implied promise.] A promise to pay interest may be implied from the acts of the parties. Thus where a balance has been settled upon an allowance of interest in a banker's book ; that is an admission by the party of a contract to pay interest on the sums advanced to him by the banker. Per Lord Ellenborough, p 19 Eng. Com. Law Reps. 211. q 5 Id. 438. ' 13 Id. 1, ' 17 Id. 399. ' 2 Id. 466. " 2 Id. 488. • ' 1 Id. 91. Assumpsit en an Account stated. 235 Calton V. Bragg, 15 East, 228. So where the plaintiffs had acted as agents for the defendant, and had advanced monies, and at the close of each yearly account, which was delivered annually, had charged interest, and at each rest had added the interest of the preceding year to the principal, Lord Ellenborough held that the accounts^ which had not been objected to for a number of years, afforded sufficient evidence of a promise to pay interest in this man- ner. Bruce v. Hunter, 3 Ca7)ipb. 467. But where compound in- terest is charged, it must appear that the party knew that the practice was to make such rests. Moore v. Voughton, 1 Stark. 487 ;^ and see Daioes v. Pinner, 2 Campb. 486 (n). Where interest is not allowed.'] It has been held that interest cannot be recovered on money received to the use of another, De Havelland v. Boicerbank, 1 Campb. 50 ; though the money was, ob- tained by fraud; Crockford v. Winter, 1 Campb. 129; nor for money lent to be repaid either upon demand, or at a given time ; Calton V. Bragg, 15 East, 224; Higgins v. Sargent, 2 B. and C. 351 ;^ nor where the borrower by a written instrument promises to repay it at a certain time ; Page v. Newman, 9 B. and C. 378 ;t nor on money paid ; Car v. Edwards, 3 Stark. 132 ;^ nor on money due for work and labour ; Trelawney v. Thomas, 1 H. Bl. 303 ; nor on money due for goods sold and delivered to be paid for on a cer- tain day ; Gordon v. Swan, 12 East, 419; 2 Campb. 429 {n), S. C; nor upon a policy of insurance; Kingston v. M'Intosh, 1 Campb. 518 ; nor upon a policy of insurance of a life, where the money is payable six months after the proof of the death ; Higgins v. Sar- gent, 2 B. and C. 348 ;^ nor on a single bond ; Hogan v. Page, 1 B. and P. 337 ; nor on rent ; Per Tindal, C. J., Foster v. Weston, 6 Bingh. 714 ;" nor on an instrument " to pay 1500/. to be deliver- ed in goods by three payments of 500Z. each, at three, five, and seven months." Foster v. Weston, 6 Bingh. 709." ASSUMPSIT ON ACCOUNT STATED. To recover upon the count, on an account stated, the plaintiff must prove an absolute acknowledgment by the defendant of the plaintiff's claim ; a qualified acknowledgment is not sufficient, as, " I would have paid you if you had not removed the grates." Evans v. Verity, R. and M. 239. Where a party examined before commissioners of bankrupt, admitted that he had received a sum of money on account of the bankrupt, after an act of bankruptcy, but not that it was a subsisting debt, it was held that this would not support a count on an account stated with the assignees. Tucker V. Barrow, 7 B. and C. 623." And unless the defendant has ad- " 2 Eng. Com. Law Reps. 47s). =■ 9 id. iQl. t 17 Id. 399. ' 14 Id. 167. » 19 Id. 211. * 14 Id. 103. 236 Assumpsit on an Account stated. mitted the amount of the debt, it must be proved aliunde, or the plaintiir will only be entitled to a verdict for nominal damages ; Dixon V. Deveridge, 2 C. and P. 109;"^ but in an action by the plaintiir as executrix, when ihe defendant on being applied to by her for the payment of interest, stated that he would bring her some on the following Sunday, it was held that though this was an admission that something was due, still as it did not appear what the nature of the debt was, nor whether it was due to the plaintiff as executrix, or in her own right, nor that it was one for which assumpsit would lie, the plaintitf was not entitled to recover even nominal damages. Green v. Davies, 4 B. and C. 235,'^ Bernasconi V. Anderson, 1 M. and M. 183, Teal v. Auty, 2 B. and B. 101,' 4 B. Moore, 452, 5. C. It is sufficient to prove the account stated without giving evidence of the several items constituting the ac- count, Bartlett v. Emery, 1 T. R. 42 {n), and proof of one item is sufficient to maintain the count. Higlunore v. Primrose, 5 M. and S. 65. Where a partnership has been dissolved, and a balance struck between the partners, and there has been a promise to pay such balance, it may be recovered under this count : Foster v. AUanson, 2 T. R. 479 ; but such action will only lie on a final ba- lance of the partnership accounts, and not during the continuance of the partnership ; Fromont v. Cotipland, 2 Bingh. 170 ;^ nor as it seems without an express promise to pay the balance. Ibid, hut see Rachstraw v. Imher, Holt, 368,"^ Clark v. Glennie, 3 Stark. lO."* Henley v. Super, 2 M. and R. 166, 8 B. and C. 20' S. C. The plaintiff may recover on an account stated by the defendant with his (the plaintiff's) wife, but not on an account stated by the wife of the defendant, B. JV. P. 129, unless she be proved to be the defendant's agent in the transaction, ante, p. 31. Where there were accounts between A. and B., and C. became a partner with B., and dealings continued between B. and C. as partners, and A., who afterwards settled an account with B. and C, wherein was included the money due from A. to B. alone. Lord Kenyon held that the whole might be given in evidence on a count on an account stated, in an action by B. and C. Moore v. Hill, Peake Ev. 273, 4th ed.; and sec Goug'h v. Davies, 4 Price, 214, David v. Ellice, 5 B. and C. 196.'^ An account stated was formerly considered con- clusive, but a greater latitude now prevails, in order to remedy the errors which may have crept into the account in surcharging the items. Per Lord Mansfield, Trueman v. Hurst, 1 T. R. 42. If the defendant accounts with the plaintiff in a particular character, he will be taken to have admitted that character. Peacock v. Harris, 10 East, 104. See ante, p. 27. A promissory note not properly stamped cannot be given in evi- dence as an admission by the maker upon a count on an account stated. Green v. Davies, 4 B. and C. 235.'i Nor a note payable on a contingency. Morgan v. Jones, 1 Crom. and Jervis, 162. «I2Ensr. Com. Law Reps. 49. • 3 Id 159. •3 Id. 409. '9 Id. 345. Accord and Satisfaction. 239 name) without this that he was or ever has been called by the name of — (the wrong name). 2 Chitty's PI. 450, Zd ed. The usual replication to this plea is, that the party was and still is known as well by the name of — (the name by which he is sued) as by the name of — &c. Id. jp. 616. Upon this issue the plaintiff need not prove the baptismal name, but it will be sufficient to show that the party is generally known by the name by which he sues or is sued. But if the plea is, that the party was baptized by a certain name, and the replication that he was not so baptized, evidence of his re- puted name is not sufficient, and his baptism must be proved. Weleker v. Le Pelletier, 1 Campb. 479. If the plaintiff replies that the defendant is estopped by having put in bail in the wrong name, see Chittifs PI. 616, 3fZ ed., he must prove the estoppel by an ex- amined copy of the recognizance of bail enrolled. Meredith v. Hod- ges, 2 Bos. and Pul. JV. R. 453. Pleas in bar. In assumpsit all the most usual matters of defence may be given in evidence under the general issue {see the several heads post,) but a tender, the statute of limitations, bankruptcy, a discharge under the insolvent act, and a set-off (except in actions by assignees of bankrupt, or where a notice of set-off is given), must be specially pleaded. Vide post. So matter of defence arising after action brought, cannot be given in evidence under the general issue, but must be specially pleaded. Le Brett v. Papillon, 4 East, 502. Lee V. Levy, B. and C. 390." Accord and Satisfaction. Accord and satisfaction may be given in evidence under the ge- neral issue. Paramour v. Johnson, 12 Mod. 377 ; and accord and satisfaction by one defendant is a bar for all. Com. Dig. Accord {A. 1). The defendant must prove the accord executed ; there- fore, where there is an agreement to pay money in satisfaction, it is not good to show that he has always been ready to pay it, or a tender or refusal. Id. {B. 4.) Peytoe's case, 9 Rep. 79, b ; but see Bradley v. Gregory, 2 Campb. 385, post. So, though an accord to do a thing at a future day is good, yet it must be proved to be exe- cuted before action brought. 1 Rol. Ab. 129, /. 17. It must appear to be a reasonable satisfaction, and therefore ac- ceptance of a less sum cannot be a satisfaction in law of a greater sum then due. Fitch v. Sutton, 5 East, 230; but where a debtor entered into an agreement with his creditors (though not under seal) whereby they agreed to receive a certain sum per cent, in sa- tisfaction of their demands, and released the remainder, in consi- deration that half the composition should be secured by the accep- tances of a certain person (also a creditor), which security was » 10 Eng. Com. Law Reps. 364. 240 Assumpsit. — Defence. given, and pjiid when due, it was held that this was a sufficient ac- cord and satisfaction executed, and that a creditor who had re- ceived it could not afterwards sue the debtor, for to do so would be a fraud upon the security. Steiiwian v. Magnus, 11 East, 390. See Lewis V. Jones, 4 B. and C. 513.'' So where all the creditors of a man sign an agreement to give liim time for the payment of their respective debts by instalments, and to take promissory notes for the amount, such agreement is binding upon each, the signing by the others being a sufficient consideration, and they cannot sue for the original debt. Boolhbey v. Sowden, 3 Campb. 175; see also Wood V. Roberts, 2 Stajic. 417.'" But to operate as a satisfaction, the composition must be paid ; and therefore, where the plaintitf had agreed with the defendant and the rest of the defendant's cre- ditors to take a composition secured by the defendant's notes, and, on defendant assigning certain debts to the creditors, to execute a general release, and all the other creditors accepted the composi- tion and executed the release, it was held that the plaintiff, although he might have received his notes had he applied for them, not hav- ing received them, might sue on his original demand, no tender of the notes having been made. Crawley v. Hillary, 2 M. and S. 120 ; and see Walker v. Seaborne, 1 Taunt. 526. But had the notes been tendered, it would, as it seems, have been sufficient. Thus, where the defendant's creditors agreed to take a composition on their respective debts, to be secured partly by the acceptances of a third person, and partly by the defendant's own notes, and to ex- ecute a composition deed containing a clause of release, it was held by Lord Ellenborough that a creditor who had come in under the agreement, and to whom the acceptances and notes were regularly tendered, but who had refused to execute the composition deed after it had been executed by all the other creditors, could not sue for his original debt. Bradley v. Gregory, 2 Campb. 383 ; but see Peytoe's case, 9 Rep. 79 b, supra. See also Butler v. Rhodes, 1 Esp. 236. In the following case the literal performance of the sti- pulations in the composition deed was dispensed with. A. being in- solvent, by agreement stipulated to assign his property immediate- ly, the creditors consenting that the business should be carried on for their benefit until the next Michaelmas, and that then the pro- perty should be divided amongst them ; and the insolvent accord- ingly assigned his effects. At the next Michaelmas several of the creditors who had signed the instrument agreed that the business should be carried on by the trustees for a further time. It was held that a creditor who had signed the first agreement, but who had not in any way concurred in the second, could not maintain an action against the insolvent for a debt existing at the time of the first agreement. Cork v. Saunders, 1 B. and A. 46. ' 10 Eng.Com. Law Reps. 393. *3Id. 411- Coverlure. — Fraud, 241 Cotierture. The coverture of the defendant at the time of the coritract en- tered into is usually a good defence under the general issue, but in some cases a married woman has been allowed to be rsued as a feme sole. If the wife of a foreigner resident abroad live and trade here as a feme sole, she may be sued as such. Da Guillon v. L'Aigle, 1 B. and P. 357. And where a French emigrant left his wife in this country, and resided himself abroad, Lord Kenyon held that this was tantamount to an abjuration of the realm in a native, and that the wife might be sued as a feme sole. Walford v. Duchess de Pi- enne, 2 Esp. 554. Franchs v. Same, Id. 587. But in a similar case Lord Ellenborough held that the wife was not so liable, and the Court of King's Bench concurred in that opinion. Kay v. Duchess de Pienne, 3 Camph. 123. A feme covert living apart from her husband, and having a separate and sufficient maintenance, cannot be sued as a feme sole. Marsh, v. Button, 8 T. R. 545. Nor can the wife of an Englishman wdio is resident abroad be so sued. Marsh v. Hutchinson, 2 B. and P. 226; and see Bo^getv. Frier, 11 East, 301. Even a divorce d mensd et thoro for adultery does not so far destroy the relation of husband and wife as to render the latter liable as a feme sole. Lewis v. Lee, 3 B. and C. 291.* But after a divorce ab initio the w'ife becomes a single woman by ope- ration of law, and it is the same as if she had always remained single. Anstey v. Manners, Gow, 11. ^ And so where the husband has abjured the realm. Lean v. Schuliz, 2 W. Bl. 1199, 3 B. and C. 297,'' or been transported for a limited period, the wife is to be considered as a feme sole. Carrol v. Blacoiv, 4 Esp. 27. See 2 B. and P. 233. Where coverture is the defence, the defendant may prove her marriage by a copy of the register, with proof of identity, ante, p. 62 ; or by the usual presumptive evidence of marriage, reputation and cohabitation. Leader o. Barry, 1 Esp. 353. Kay v. Duchess of Pienne, 3 Carnpb. 123. Birt v. Barlow, Dougl. 106. And she must show that her husband was living at the time of the debt contract- ed. If she shows him to have been alive within seven years it will be sufficient. Hopewell v. De Pinna, 2 Camph. 113, ante, p. 18. Acknowledgments by the defendant, and the person whom she al- leges to be her husband, of their marriage, without actual proof of the marriage, or of reputation of marriage, are insufficient to prove the coverture. Wilson v, Mitchell, 3 Camph. 394. Fraud.'] The proof of fraud in the party seeking to enforce a contract is a good defence. Thus, where the defendant errone- ously supposed that a picture had been in the possession of Sir F. Agar, and purchased it from the agent of the plaintiff, who was « 10 Eng. Com. Law Reps. 84. ? 5 Id. 44 J. 31 242 Assumpsii. — Defence. aware of the error, but did not undeceive the defendant, Lord EI- lenborough held that the phiintilf could not recover the sum for which the picture was sold. liiU v. Gray, 1 Stark. 434." So where goods are falsely described as " the property of a gentleman de- ceased." Per Lord jMansfteld, E'exicell v. Christie, Coirp. 395. So where, at a sale by auction, the owner of the goods employs a per- son to bid for him, and the buyer lias no notice of such appoint- ment, it is a fiaud, and the seller cannot recover the price. Crow- der V. Austin, 3 Bivgh. 368." 2 C. and P. 219, S. C. Wheeler v. Col- lier, 1 M. and M. 126. Vide ante, p. 138. IllegaUty.'] ■ Where a contract is illegal or immoral, it cannot be enforced, and proof of its illegal or immoral nature will be a de- fence to the action. Thus, if goods are sold to be applied to an il- legal purpose, with the knovv'ledge of the vendor, an action cannot be maintained, as in the case of brewers' drugs. Langton v. Hughes, 1 M. and S. 593. So in the case of bricks under the statutable size. Law v. Hodgson, 1 1 East, 300. So in an action for work and labour, the illegality of the trans- action will be a defence. A party will not be permitted to sue either for work and labour done, or materials provided, where the whole combined forms one entire subject-matter, made in violation of the provisions of an act of parliament. Bensley v. Bignold, 5 B. and A. 335.'' So the printer of an immoral and libellous book cannot maintain an action for his bill against the publisher who employed him. Poplett v. Stockdale, R. and M. 337 ; and see Coates V. HuttoH, 3 Stark. 61.'= But where the party seeking to enforce the contract has been guilty of contravening a law made, not for the protection of the pubHc, but of the revenue only, this is not such an illegality as will prevent him from recovering at law. Brown v. Duncan, 10 B. and C. 93; a7id see Hodgson v. Temple, 5 Taunt. 1 81,'' Johnson v. Hud- son, 11 FMst, 180. Illegality. — Sale of spirituous liquors. — Drunkenness.'] By stat. !24 Geo. II. c. 40, s. 12, "No person or persons whatsoever shall be entitled unto, or maintain any action, cause, or suit for, or recover, either in law or equity, any sum or sums of money, debt or de- mands whatsoever, for or on account of any spirituous liquors, un- less such debt shall have really been and bona fide contracted at one time to the amount of twenty shillings or ipwards; nor shall any particular article or item in any account or demand for distilled spirituous liquors be allowed or maintainet!, where the liquors de- livered at one time, and mentioned in such article or item, shall not amount to the full value of twenty shillings at the least, and that without fraud or covin, and where no part of the liquors so » 2 Eng. Com. Law Reps. 459. » 13 Id. 11. k 7 Id. 121. « 14 Id. 163. * 1 Id. 67. ' Illegality, 243 sold or delivered shall have been returned, or agreed to be re- turned, directly or indirectly." This statute docs not extend to the case of a person who purchases liquors in small quantities to retail them again; as the keeper of an eating-house. Jack son v. Attrill, Peake, 180 a. Gilpin v. Rundle, 1 Selw. JV. P. 61, 4th ed. But it applies to the case of a tavern-keeper's bill which the de- fendant has contracted, and in which there are items for spirits suppHed to the defendant's guests. Burnyeat v. Hutchinson, 5 B. and A. 241."= And a bill of exchange, part of the consideration of which is for spirituous liquors sold in less quantities than twenty shillings, is wholly void. Scott v. Gillmore, 3 Taunt. 226. Gaitskill V. Greathead, ID. and R. 359.'' But where a bill had been ac- cepted by an officer in payment of small quantities of spirits under twenty shillings, supplied for recruits and others under the defend- ant's command. Lord Elienborough was of opinion that the bill was not invalid. Spencer v. Smiih, 3 Ca?npb. 9. Drunkenness being a punishable offence, a publican cannot re- cover for beer furnished to third persons by order of the defendant, if the defendant has previously become intoxicated by drinking in his house. Brandon v. Old, 3 C. and P. 440.^ lUegaUtij — Sundaij.'] By 29 Car. 11. c. 7, s. 1, no tradesman, ar- tificer, workman, labourer, or other person whatsoever, shall do or exercise any worldly labour, business, or work, of their ordinary callings, upon the Lord's-day, or any part thereof (works of neces- sity and charity alone excepted). Upon this statute it has been held that a horse-dealer cannot maintain an action upon a contract for the sale and warranty of ahorse, made by him upon a Sunday. Finnell v. Ridler, 5 B. and C. 408.'> But where A. not knowing that B. was a horse-dealer, made a verbal bargain with him on a Sunday for the purchase of a horse, and the price which was above 10/. was then specified, and the horse warranted, but it was not delivered till the following Tuesday, when the money was paid, it was held that there was no complete contract till the delivery of the horse, and consequently that the contract was not void under the statute. Bloxsome v. WiUiams, 3 B. and C. 232.' Though the contract was made by an agent, and the objection is taken by the party at whose request it was entered into on the Sunday, it cannot be enforced. Smith v. Sparrow, 4 Bingh. 84.'^ But where goods were bought on a Sunday, and the purchaser afterwards, while the goods were in his possession, made a promise to pay for them, it was held that the seller was entitled to recover on a quantujn meruit. Williams v. Paul, 6 Bingh. 653.' The statute does not make every w^ork or business done on the Lord's-day il- legal, the object of the statute being to prevent persons carrying on their trade and ordinary occupations and callings on the Lord's- • 7 Eng. Com. Law Reps. 83. M 6 Id. 42. » 14 Id. 3R4. i> Mid. 26 1, i 10 Id. CO. MS Id. 351. 19 Id. 192. 244 ^/Issumpsit. — Dcfejwc. day. Therefore, the hiring of a servant by a farmer on a Sunday is good. R. V. l''/ii(nash,7 B. and C. 59C."" See also Begbie v. Levi, 1 Cram. andJcrv. ISO. Immo)-aIili/.'] One who is parly to an immoral contract cannot enforce it. Tlius the price of obscene or Hbellous prints cannot be recovered. Fores i\ Johnes, 4 Esp. 97. So an action for use and occupation will not He if the plaintiff knew that the premises were to be occupied for the purpose of prostitution. Jennings v. Throg- morton, R. and M. 251, ante, p. 147. And where an action was brought against the defendant for board and lodging, and it ap- peared that she was a prostitute, and had boarded and lodged with the plaintiff who kept a house of ill-fame, and who, besides what she received for the board and lodging of the defendant, par- took of the profits of her prostitution. Lord Kenyon was of opinion, that such a demand could not be heard in a court of justice. How- ard V. Hodges, Selir. jY. P. 67, 4th ed. But a person may recover the amount of goods sold to a prostitute, unless he expects to be paid out of the profits of her prostitution, and sells her the clothes to enable her to carry it on. Bou-nj v. Bennett, 1 Caniph. 348. So where the plaintilFwas employed to wash clothes for a prostitute, and knew her to be such, and the clothes consisted principally of expensive dresses, and some gentlemen's night-caps, it was held that he was entitled to recover. Lloyd v. Johnson, 1 B. andP, 340. Insolvcnctj — discharge nnder the insoIve?it act.'] By the general insolvent act 7 Geo. IV, c. 57, s. 76, a copy of the petition, sche- dule, order, and other orders and proceedings under the act pur- porting to be signed by the officer in whose custody the same shall be, or his deputy, certifying the same to be a true copy of such pe- tition, schedule, order, or other proceeding, and sealed with the sea! of the insolvent court, shall, at ail times, be admitted in all courts whatever, and before commissioners of bankrupts, and justices of the peace, as sufficient evidence of the same, without any proof whatever given of the same, further than that the same is sealed with the seal of the said court as aforesaid. The power given by this clause of offering a certified copy in evidence does not take away the right of the party to give the original order of adjudication in evidence. JVortham v Latouche, 4 C. and P. 143." Where a defendant pleads that he was discharged under the above act, and tKc replication denies that such discharge took place, the defendant need not prove the filing of the petition. Andreics v. Pledger, 4 C. and P. 274,° 1 M. and M. MSS. S. C. The only evidence which appears to be necessary under the plea of dis- charge is, the copy of schedule to show that the defendant is dis- charged from the debt in question, and the copy of the adjudication to prove the actual discharge. " 14 Eng. Com. Law Reps. 100. " 19 Id. 314. » 19 Id. 381. Infancy. 245 Under the former insolvent act, 53 Geo. III. c. 102, s. 10, it was held that an order made by the insolvent court for the discharge, and delivered to the gaoler in whose custody the prisoner was, was evidence of the discharge. Keal v. Isaacs, 4 B. and C. 335,p 6 D. and R. 484, S. C. By 7 Geo. IV. c. 57, s. 54, the court is directed to issue a warrant to the gaoler for the discharge. I7ifa7icy. That the defendant was an infant at the time of the contract made, is a good defence (unless the action be for necessaries), and may either be pleaded or given in evidence under the general issue. But where the action, though in form ex contractu, is in fact found- ed upon the tort of the defendant, his infancy will be no defence. Thus an action for money had and received will lie against an in- fant for money which he has embezzled. Bristoio v. Eastman, 1 Esp. 172. Wliat are necessaries.'\ An infant may bind himself for neces- saries, that is, for meat, drink, apparel, medicines, and similar ne- cessaries, and also for his good teaching, or instruction. Co. Litt. 172. a. Com. Dig. Enfant {B. 5). The question of necessaries is a relative fact to be governed by the fortune and circumstances of the infant, and the proof of those circumstances lies on the plaintiff. Per Lord Kenyan, Ford v. Father gill, 1 Esp. 211. Whether 7ieces- saries or not is a mixed question of law and fact. Maddox v. Miller, I M. and S. 738. An infant, being a captain in the army, is liable for a livery ordered by him for his servant, though not for cockades for the soldiers of his company. Hands v. Slaney, 8 T. R. 578 ; and see Coates v. Wilson, 5 Esp. 152. So an infant may bind himself to pay a fine due upon his admission to a copyhold estate. Evelyn v. Chichester, 3 Burr. 1717. So for necessaries supplied to his wife. Turner v. Trisby, 1 Str. 168. B. JV. P. 155. So for money ad- vanced in order to liberate him when taken in execution for neces- saries. Clarke v. Leslie, 5 Esp. 28. What are not necessaries.'] Although an infant may enter into a partnership, yet he will not be liable for the contracts of the partnership entered into during his infancy, but he will be liable upon such contracts entered into subsequently to his attaining his full age, unless he notifies his disafhrmance of the partner- ship. Goode V. Harrison, 5 B. and A. 147.' It is the duty of a tradesman dealing with an infant to make inquires from the pa- rents, for if the infant is supplied with necessaries by them, the tradesman cannot recover for those whicli he has furnished. Cook V. Deaton, 3 C and P. IH."" An infant is not liable upon an ac- count stated, even though it appears to be for necessaries ; nor can P 10 Eng. Com. Law Reps. 350. ") 7 Id. 49. '14 Id. 232. 246 Assumpsit. — Defence. the account stated be used as evidence by way of admission on the part of the defendant to show that necessaries have been supphed to that amount. Ingleclew v. Douglas, 2 Stark. 36.* Nor on a bill of exchange, though given for necessaries. Williamson v. Walts, 1 Caniph. 552. But he will be liable on a bill accepted after twenty- one, though drawn before. Stevens v. Jackson, 4 Campb. 104, However, where goods were delivered to a carrier for an infant, the infant cannot be charged, though the goods do not reach him till after he is of age, for the property vests on the delivery to the carrier. Griffin v. Langfield, 3 Campb. 254. An infant cannot be sued on a warranty of a horse. Hoidctt v. Hasicell, 4 Campb. 118. When an infant lives with his parent, who provides such apparel as appears to the parent to be proper, so that the child is not left destitute of clothes or other real necessaries of life, it seems that the child cannot bind himself to a stranger, even for what might otherwise be allowed as necessaries. Per Gould, J., Bainbridge v. Pickering, 2 W. Bl. 1325. And it is incumbent upon a tradesman before he trusts an infant with necessaries, to inquire whether he is provided by his friends. Ford v. Fothergill, Peake, 229, 1 Esp. 211, S. C. An infant is not liable for money lent, though it has been laid out in necessaries. Darby v. Boucher, 1 Salk. 279. Probart V. Knouth, 2 Esp. 472 (?i). It has been held that an infant, lieu- tenant in the navy, is not liable for the price of a chronometer, he being out of employment at the time of its being furnished. Berolles V. Ramsay, Holt, 77.* Ratification after full age.] If infancy is pleaded, the plaintiff may reply (or if not pleaded, but shown under the general issue, may give in evidence) that the defendant ratified and confirmed the contract after he attained (he age of twenty-one, and before action brought. Thornton v. Illingworth, 2 B. and C. 824." A bare ac- knowledgment, or part payment after age, will not be sufficient, there must be an express promise; Thrupp v. Fielder, 2 Esp. 628 ; and such promise must be voluntary. Harmer v. Killing, 5 Esp. 102. A contract made by an infant for goods for the purposes of trade is absolutely void, not voidable only. The law considers it against good policy, that he should be allowed to bind himself by such con- tracts. If he makes a promise after he comes of age, that binds him, on the ground of his taking upon himself a new liability upon a moral consideration existing before, it does not make it a legal debt from the time of making the bargain ; per Bayley, J., Thorn- ton V. lllingicorth, 2 B. and C. 826;" the defendant therefore will not be bound beyond the extent of his new promise, as when he promises to pay lialf-a-crown in the pound on the whole debt, he is not liable beyond that sum. Green v. Parker, 1 Esp. Dig. 198, Peake, Ev. 297, 5. C. By Lord Tenterden's Act, 9 Geo. IV. c. 14, • 3 Eng. Cora. Law Reps. 23S. ' 3 Id. 32. » 9 Id. 256. Insanity. 247 s. 5. No action shall be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratilication after full age, of any pro- mise or simple contract made during infancy, unless such promise or ratification shall be made by some writing to be signed by the party to be charged therewith. Where the defendant pleads infancy, and the plaintiff replies a ratification of the promises, &c. after twenty-one, the plaintitFneed only in the first instance prove a promise, and it lies upon the de- fendant to prove his infancy, as it is a fact peculiarly within his own knowledge; Bot/iwick v. Carruthers, 1 T. R. 648; but if the plaintiff, to the plea of infancy, replies that the goods were neces- saries, the defendant need not prove his infancy, but the plaintiff must in the first instance show that the goods were necessaries. Infancy may be proved by calling any person who can speak to the time of the defendant's birth, or by declarations of deceased members of his family, mentioning the time of his birth, with proof of identity, ante, p. 18. The register of his baptism is not of itself evidence of the time of his birth, ante, p. 115. But the register of birth, with proof of identity, is good evidence. Leader v. Barry, 1 Esp. 354. Insanity. It is a good defence that the defendant at the time of the con- tract entered into was of unsound mind, and that the plaintiff took advantage of that circumstance to impose upon him. Brown v. Joddrell, 1 M. and M. 105. Levy v. Baker, id. 108 {n). Sentance V. Poole, 3 C. aiid P. l." Payment. Payment may be given in evidence under the general issue, un- less made after the writ issued, in which case it must be pleaded specially, or the plaintiff will be entitled to a verdict with nominal damages. Holland v. Joardine, Holt, 6 ;' see Francis v. Crywell, 5 B. and A. 886 ;^ JVelson v. Wilson, 6 Bingh. 568.y To whom and how.] Payment to an authorised agent is sufficient. See Goodland v. Blewith, 1 Campb. 4ni ; Coates v. Lewis, id. 444 ; Owen V. Barrow, 1 Bos. and Pul. M R.lOl. Thus payment to an attorney while an action is subsisting is good, but otherwise to his clerk who shows no other authority than his master's orders to re- ceive it. Per Lord Kenyon, Coore v. Callaway, 1 Esp. 115. So payment to the attorney's agent is not good. Yates v. Freckleton, Dough 600. But payment to a person found in a merchant's count- ing house, and appearing to be entrusted with the conduct of the business there, is a good payment to the merchant, though the per- Ml Eng. Com. Lavf Hops. 179. "Sid. 5. » 7 Id. 289. M9ld.,16G. 248 Assumpsit. — Defence. son was in fact never employed by him. Barrett n. Deere, 1 M. and M. 200 ; caid see Wilmot v. Smith, id. 238, post. Where a creditor directs his debtor to transmit money by the post, and it is lost, the creditor must bear the loss; Waruiche v. JShahes, Peake, 67, a ; and where no directions arc given about the mode of remit- tance, yet this being done in the usual way of transacting business, it seems that the debtor is discharged. Per Lord Kenyan, ibid. But if the letter is delivered to the bellman in the street, and is lost, it is no payment. Hairkins v. Rutt, Peake, 186. Payment by an attorney to a creditor will support an averment of payment by the principal, though the latter has not repaid his attorney, but has only given him a promissory note. Adams v. Dan- sey, 6 Bingh. 500.^ Application of payments^ In general the party who pays money has a right to direct the application of it, but where money is paid to a creditor generally, without any specific appropriation by the party paying, and the creditor has several demands against the party paying, he may apply the money paid to which of those de- mands he pleases. Hall v. Wood, 14 East, 243 (n). Clayton's case, 1 Merivale, 572. The creditor need not apply it to any particular demand at the moment of payment, but has a right to make the application at a subsequent period ; nor will an entry in his books, applying it to a particular demand, but not communicated to the party paying, preclude him from applying it afterwards to another demand. Simson v. Ivgham, 2 B. and C. 65.* The creditor may apply the payment to the discharge of a prior and purely equita- ble demand, and sue his debtor at law for the subsequent legal debt. Bosanquet v. IVray, 6 Taunt. 597 ;" but see Birch v. Tebbutt, 2 Stark. 74."= So where the party paying is indebted to the party receiving for a sum due from his wife, dum sola, and also on another demand, the party receiving may apply the money to the first demand. Goddard v. Cox, 2 Str. 1194. But in some instances the law will direct the application of money paid generally. Thus where one of several partners dies, and the partnership is in debt, and the surviving partners continue their dealings with a particular creditor, and the latter joins the transactions of the old and new firm in one entire account, the payments made from time to time by the surving partners must be applied to the old debt. Per Bayley, J., Simson v. Ingham, 2 B. and C. 72^ Clayton's case, 1 Meriv. 572. Brooke v. Enderby, 2 B. and B. 71." So payments by a debtor to surving partners from time to time, upon one general account including the old debt, are to be appUed in the first place to such old debt; Bodenham v. Pur- chas, 2 B. and A. 39 ; but where the old debt is not brought into the new account, general payments on the new account are not to be considered as made in discharge of the old debt. Simson v. » 19 Eng. Com. Law Reps. 149. • 9 Id. g5. ^ 1 Id. 495. • 3 Id. 252. * 9 Id. 28. « fl Id. 23. Payment. 219 , Ingham, 2 B. and C. 65/ And where tlicre are distinct demands, one against persons in partnership, and another against one only of the partners, if the money paid be the money of the partners, the creditor is not at liberty to appiy it to the debt of the individual. Thompson V. Brown, 1 M. and M. 40. Where payments are made upon one entire account, they are to be considered as payments in discharge of the earlier items. Per Bayley, J., Bodcnham v. Purchas, 2 B. and A. 46. IVilUamson v. Raidinson, 3 Bingh. 76." V/here security had been given by a surety for goods to be supplied to his principal, and not iir respect of a previously existing debt, and pay- ments were made from time to time by the principal, in respect of some of which discount had been allowed for prompt payment, (the floods having been sold on credit,) it was held that it was to be in- ferred in favour of the surety, that the payments were in liquidation of the latter account; Marrljaits v. JPliite, 2 Stark. 101 ;'' but the law will not, in favour of a surety, direct the application of money paid generally in discharge of the debt secured, without some cir- cumstances to show (hat it was so intended. Piomer v. Long, 1 Starh. 163.' JVU/iams v. RaicUnson, 3 Bingh. 71.^ When A. has a demand against B. as executor, and also another demand against him in his own right, and B. makes a general pay- ment, A. cannot apply it to the former demand ; Godd.ard v. Cox, 2 Str. 1194 ; and where there are two demands, one legal and the other illegal, and a general payment is made, the law will apply it to the discharge of the legal demand. Wright v. Laing, 3 B. and C. lOS.'' As to cases in which payment will be presumed, vide ante, p. 14, and as to the proof of payment by receipts, ante, p. 26. Payment by bill or note.'] If the seller of goods take notes or bills for them, without agreeinu; to run the risk of the notes being paid, and they turn out to be wortli nothing, this will not be consi- dered as payment. Owenson v. Morse, 7 T. R. 64. Sirinyard v. Boices, 5 M. and S. 62. But if the seller agree .to run the risk of the bill being, and to take it as payment or cash, he cannot, on the dishonour of the bill, resort to his original cause of action ; Ward v. Evans, 2Salh. 442, 7 T. R. 66 ; and where the purchaser gives the seller an order upon a third person entitling him to receive cash, instead of which the vendor elects to take a bill, in such case though the bill is dishonoured the purchaser is discharged. Vernon v. Bove- rie, 2 Shoir. 206. S7nith v. Ferrand, 7 B. and C. 19.' But it is otherwise if the order is upon the purchaser's agent, and the seller "takes from him a check which is dishonoured. Everett v. Collins, 2 Campb. 515, 7 B. and C. 24, 25.' Where the master of a vessel took from the freighter's agent abroad, who was furnished with funds to pay him the freight, a bill upon a third person, which was '9 Enpf. Com. Law Reps. 2:. Kllld. 36. hsiii, 056. i 2 Id. 334. k 10 Id. 41. 1 14 Id. 6. 32 250 Jlssumpsit. — Defence. dishonoured, it was held by Gibbs, C. J., (hat the freighter was not thereby discharged. JSlarili i\ Pcdder, 4 Cd/nph. 257. If the mas- ter of a vessel is to get payment in the best mode he can, and has no power to get any thing but a bill, he must take that, but if he could get paid in any other mode, he should do so, otherwise he will be bound by taking a bill. Per Baij/ey, J., Strong v. Hart, G B. and C. 161 ;■" and see Tat/lor o. Briggs, 1 M. and M. 28. Robinson v. Read, 9 B. and C. 449." Payment by bills is prima facie evidence of payment, without showing that such bills w-ere paid ; it is for the plaintiff to show that they have been dishonoured ; Hebden v. Harlsink, 4 Esp. 46 ; Stedma/i v. Gooch, 1 Esp. 4 ; and where the purchaser gave the seller of goods an order on his banker for "a good billon London," to the amount of the goods, and the seller took a bill which was afterwards dishonoured. Lord Kenyon held that it was incumbent on the seller to take care that he got a good bill, and that he could not on its being dishonoured have recourse to his demand for goods sold. Bolton V. Reichard, 1 Esp. 106. So where goods were sold " without recourse to the buyer in case of non-payment," for a bill which the vendee knew to be worth nothing, it was held that the vendor could not sue in assumpsit for the price of the goods, but that his remedy was an action of tort. Read v. Hutchinson, 3 Campb. 352. Where a bill indorsed in blank is taken by the ven- dor for goods, and lost before it is paid, the vendor can neither re- cover for the price of the goods nor upon the bill. Chamjnon v. Terry, 3 B. and B. 295.° But where the purchaser of goods ac- cepted a bill drawn in favour of the seller, who lost it before he in- dorsed it, it was held that this was no defence in an action for the value of the goods. RoU v. Watson, 4 Bingh. 273.1- Release. A release may be given in evidence under the general issue. Miller v. Aris, 3 Esp. 234. After breach the contract can only be discharged by a release under seal, but before breach it maybe discharged by parol, ante, p. 11. • Set-off. It is only necessary to plead or give notice of a set-off where there are cross demands ; for where the nature of the employment, transaction, or dealings, necessarily constitutes an account consisting of receipts and payments, debts and credits, the bala?ice only is the debt. See Green v. Farmer, 4 Burr. 2221. A set-off may be either pleaded or given in evidence under the- general issue, but in the latter case notice of the set-off must be given at the time of pleading, 2 Geo. II. c. 22, s. 13; and it will be necessary to prove the delivery of the notice at the trial. Tidd, 721. When the defendant has a set-off against the plaintiff, » 13 Eng. Com. Law Rops. 130. " 17 Id. 418. » 7 Id. 443. i- 13 Id. 430. Set-off. 251 of which he gives notice, but does not appear at the trial to offer evidence in support of it, the plaintiff may either take a verdict for the whole sum he proves to be due to him, subject to be reduc- ed to the sum really due on a balance of accounts, if the defend- ant will afterwards enter into a rule not to sue for the debt in- tended to be set-off, or it is said he may take a verdict for the smaller sum, with a special indorsement on the postea, as a founda- tion for the court to order a stay of proceedings, if another action should be brought for the amount of the set-off Laingv. Chatham, 1 Cam-ph. 252. Tidcl, 721. Notice of set-off can only be given where the general issue is pleaded without any other plea. Webber V. Venn, R. and M. 413. Where the defendant pleaded by way of set-off a bond given to him by the plaintiff, conditioned for payment of an annuity to a third person, which had been previously granted by the defendant, and that a certain sum was in arrear, it was held that the defend- ant was not bound to prove that he had paid the money in order to set it off, but that on production of the bond the plaintilF was bound to prove payment. Penny v. Foij, 8 B. and C. 1 l.i JVature of the debt set-off and of the debts against which it is set-off.'\ A set-off is allowed notwithstanding the debts are of a different na- ture, unless in cases where either of the debts shall accrue by rea- son of a penalty in any bond, or specialty, in which case the debt intended to be set-off must be pleaded in bar, and in the plea must be shown how much is justlv due on either side. 8 Geo. 11. c. 24, s. 4. The demand intended'to be set-off must be liquidated. Free- man V. Hrjett, I W, Bl 394. Thus a guarantee of a certain sum of money cannot be set-off Crawford v. Stirling, 4 Esp. 207. So in an action by a servant against his master for wages, the latter cannot set-off "^the vaJue of goods lost by the negligence of the for- mer ; but if it sho«»d be proved to be part of the original contract, that the serva-^*- should pay out of his wages the value of his master's goods lost though his negligence, this would be tantamount to an agreeme"- that the wages should be paid only after deducting the value ->' the things so lost, which would be a good defence under the ge«^iral issue. Le Loir v. Rristow, 4 Ca?7ipb. 134. A stipulated sum CO be paid on the non-performance of certain work as stipulated li- quidated damages, may be the subject of a set-oif.' Fletcher v. Dych, 2 T. R. 32. A judgment may be pleaded by way of set-off, though a writ of error be pending thereon ; Reynolds v. Beering, cited 3 T. R. 188 ; see Curhng v. Innes, 2 II Bl. 372 ; and where in an action on a promissory note of 30/. the plaintiff took a verdict for the whole sum, and the defendant had at the same sittings an ac- tion against the plaintiff for 11/., to which there was a notice to- 1 15 Eng. Com. Law Reps. MG. 252 Jlssumpsit. — Defence. set-ofT the note of hand, the cour held that notwithstanding the verdict, the note misjht be sct-otF. BasJierviUe v. Brown, B. JV. P. 180: 2 Bun: 12'29, S. C. Kcrnis v. Prosser, 3 T. R. 18G. A debt cannot be set-oil' till ihe time at which it is actually due. Rodger- son i\ Ladhrookc, 1 Bingh. 99/ A debt barred by the statute of limitations cannot be sct-olF; if pleaded, the plaintiff may reply the statute; if given in evidence under a notice, it maybe objected to at the trial. B. JY. P. 180. With regard to the nature of the demand against which the set- off is claimed, it is held that it must be for liquidated damages. Therefore in assumpsit for not indemnifying the plaintiff against certain accommodation acceptances, whereby he was forced and obliged to pay to the holders of the bills certain sums of money, with interest, charges, and expenses, it was held that a set-off could not be pleaded : Ilardcast/e v. A'ctherirood, 5 B. and A. 93 ;' Auher V. Leicis, Mann. Index, 251 ; but the defendant might, per- haps, have pleaded a set-oif to that part of the count which charg- ed him with the amount of the acceptances paid by the plaintiff. Per Cur. ibid. And where the plaintiff declared specially in as- sumpsit for not accounting, with a count for money had and re- ceived, and non-assumpsit w^as pleaded to the whole declaration, and a set-off to the general count, and the plaintiff proved a bal- ance due to him, which might have been recovered under either count, Gibbs, C. .!., held that the defendant might avail himself of his set-off. Birch v. Depeijster, 4 Campb. 387. The demands must be mniual, and due in the same right'] In order to constitute a valid set-off the demands must be mutual, and due in the same right. Bankrupts.'] By stat. 6 Geo. IV. c. 16, s. lb, where there has been mutual credit given f)ythe bankrupt and ai.-j other person, or where there are mutual debts between the bankrtrjt and any other person, the commissioners shall state the account between them, and one debt or demand may be set against anothe. not- withstandina; any prior act of bankruptcy committed by such bit^l^. rupt before the credit given to, or the debt contracted by, him, and what shall appear due on either side, on the balance of such account, and no more, shall be claimed or paid on either side re- spectively ; and every debt or demand thereby made proveable against the estate of tlie bankrupt, may also be set-off in manner aforesaid against such estate: provided that the person claiming the benefit of such set-olf had not, when such credit was given, notice t)f an act of bankruptcy, by such bankrupt committed. It seems that under this act, a set-off, or mutual credit, may be given in ' 8 Eng. Com. Law Reps. 200. • 7 Id. 37. Set-off. 253 evideoce under the general issue. See similar clause, in 5 Geo. II. c. 30, s. 28. Vide post, " Actions hy Assignees ofBanhrwpts" Executors.'] By 2 Geo. II. c. 22, s. 13, where either party sues or is sued as executor or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against the other. But in an action by an executor in his own name, to recover money due to the testator in his lifetime, and received by the defendant after his death, the defendant can- not set-off a debt due to him from the testator. Shipman v. Thomp- son, Willes, 103. Factors and Agents.] An agent employed to recover a sum of money is entitled to retain a just allowance for his labour and ser- vice therein, and as such allowance is not in the nature of a cross demand, or mutual debt, he may give it in evidence under the ge- neral issue. Dale v. Sollet, 4 Burr. 2133, ante, p. 250. Where a factor sells goods without disclosing the name of his principal, the purchaser, in an action by the principal for the price, may set-off a debt due to himself from the factor ; Rabons v. Williams, 1 T. R. 360 («), George v. Clagett, 7 T. R. 359, Carr v. Hindi fe, 4 B. and C. 547 ;* and may give such matter in evidence Under the general issue. Ibid. Yet if before they are all delivered, and before any part of them is paid for, the purchaser is informed that they belonged to a third person, in an action by the latter, the purchaser cannot set- off a debt due to him by the factor, for this is not a case of mutual credit. Moore v. Clementson, 2 Campb. 22. A broker (whose character differs materially from that of a factor), in selling goods without disclosing the name of his principal, acts beyond the scope of his authority, and the buyer therefore cannot set-off a debt due from the broker to him in an action for the goods by the principal. Baring V. Corrie, 2 B. and A. 137 ; see stat. 6 Geo. IV. c. 94, s. 1, 2. 6. Husband and ivife.] A debt due to a man jure uxoris, cannot be set-off in an action against him on his own bond ; B. JV. P. 179 ; nor can a debt due from a wife, diim sola, be set-off in an action brought by the husband alone, unless he has made himself individu- ally liable. Wood v. Akers, 2 Esp. 594. Partners.] A debt due to a surviving partner may be set-off against a demand upon him in his own right. Slipper v. Stid- stone, 5 T. R. 493, ayid P. converso, French v. Andrade, 6 T. R. 582. In an action brought by an ostensible and dormant partner, the de- fendant may set-off a debt due to him from the ostensible partner only, Stacy v.Decy, 2 Esp. 409, 7 T. R. 301 (??), S. C. ; and where a note was given by D. to his bankers. A., B., andC, who indorsed • 10 Eng. Com. Law Reps. 408. 254 Assumpsit. — Defence. it to B. and C, who carried on business separately, it was held by Lord Kenyon, that in an action on the note by B. and C, D. might set-olFa demand due to him from A., B., and C. Buller v. Roe, Peake, 197. Statute of Liinitations. The Statute of Limitations must be pleaded, and cannot be given in evidence under non-assiwipsit. 2 Saund. 03 h (n). When the statute begins to run-l In assumpsit the statute be- gins to run from the time of the breach of promise. Therefore in an action against an attorney, in which it was stated as a breach, that the defendant neglected to make a search at the Bank of England, to ascertain whether certain stock was standing in the names of certain persons, it was held that the omission to search having taken place upwards of six years before, the statute was a bar, though the omission was not discovered till within the six years. Short v. McCarthy, 3 B. and A. 626." Brown v. Hoivard, 2 B. and B. 73.' Batley v. Faulkner, 3 B. and A, 288.^^ So in tort. Howell v. Young, 5 B. and C. 259,'' vide post. So where a bill of exchange is drawn, payable at a future period, for the amount of a sum of money lent by the payee to the drawer at the time of drawing the bill, the payee may recover in an action for money lent, at any time within six years from the time when the money was to be repaid, i. e. when the bill became due, and not from the time of the loan. Wittershei??i v. Countess of Carlisle, 1 H. Bl. 631. When a note is payable on demand, it is payable imme- diately, and the statute begins to run from the date ; Christie v. Fonsick, Selw. JV. P. 131 ; see Mann. Index, 202 ; but where a note is made payable 24 months after demand, the cause of action does not accrue, and the statute does not begin to run until 24 months after demand made ; Thorpe v. Booth, R. and M. 388 ; so where the note is payable after sight, the statute runs only from the time of presentment. Holmes^^o. Kerrison, 2 Taunt. 323 ; and see Savage V. Aldren, 2 Stark. 232. ^ Where the cause of action does not arise until after request made, the statute will only run from the time of such request. Gould v. Johnson, 2 Salk. 422, 2 Saund. 63, h {n). Subsequent acknowledgment.'] The effect of the statute of limi- tations may be avoided, by proof of an acknowledgment of the debt within six years, which acknowledgment is said to be evidence of a new promise to pay the debt, and not merely operating to draw down the original promise to the time when the acknowledg- ment is made. Het/lin v. Hastings, 1 Ld. Raijm. 422. Huist v. Parker, 1 B. and A. 93. Pittam v. Foster, 1 B. and C. 248.- A'Court V. Cross, 3 Bingh. 332." Boy dell v. Drumviond, 2 Campb. 162 ; - 5 Eng. Com. Law Reps. 403. - 6 Id. 25. " 5 Id. 288. ^ 1 lid. 219. r 3 Id. 329. ' 8 Id. 67. • 1 1 Id. 124. Set-off. 255 hut see Perham v. Rayndl, 2 Bingh. 308,'' Thornton v. lllingwortk, 2 B. and C. 826." A verbal promise was formerly held sufficient to revive a written guarantee. Gibbons v. MCasland, 1 B. and A. 690. But the law has been altered by Lord Tenterden's Act. Acknowledgement. — Lo7'd Tenterden^s Act.l By stat. 9 Geo. IV. c. 14. (reciting the Statute of Limitations, 21 Jac. L c. 16, and the Irish Act 10 Car. I.) and that varipus questions have arisen in ac- tions founded on simple contract, as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactment, &c., it is enacted, -Sec. I. That in actions of debt, or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enact- ments, or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party charge- able thereby ; and that where there shall be two or more joint contractors, or executors, or administrators of any contractor, no such joint contractor, executor or administrator, shall lose the be- nefit of the said enactments, or either of them, so as to be charge- able in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them ; pro- vided always that nothing therein contained shall alter or take away or lessen the effect of any payment of principal or interest made by any person whatsoever ; provided also, that in actions to be commenced against two or more such joint contractors, or executors, or administrators, if it shall appear at the trial, or other- wise, that the plaintifT, though barred by either of the said recited acts, or this act, as to one or more of such joint contractors, execu- tors, or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment, or promise, or otherwise, judgment may be given, and costs allowed for the plaintiff, as to such defendant or defend- ants against whom he shall recover, and for the other defendant or defendants against the plaintiff! .Sec. II. That if any defendant or defendants in any action on any simple contract, shall plead any matter in abatement, to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the said acts, or this act, or of either of them, be maintained against the other person or per- sons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same. Sec. ill. That no indorsement or memorandum of any payment, * 9 Eng. Com. Law Reps. 413. « 9 Id. 256. 256 jissumpsiL — Defence. written or made after the time appointed for this act to take effect, npon any proniissory note, bill of exchange, or other writing, by or on the behalf of tile party to whom sucii payment shall be made, shall be deemed siilhcient proof of such payment, so as to take the case out of the operation of cither of the said statutes. Sec. IV. That the said recited acts, and this act, shall be deem- ed and taken to apply to the case of any debt or simple contract alleged by way of set-olF on the part of any defendant, either by plea, notice, or otherwise. The effect of Lord Tentcrden's act appears to be not to alter the law relating to acknowledgments and promises, sufficient to take a case out of the statute of limitations, further than by requiring such acknowledmcnt or promise to be in writing, and signed by the party chargeable. No alteration is introduced in the form of the acknowledgment or promise, or with regard to the party to whom it is made. The former decisions on these points are therefore still to be considered as authority. The act operates from 1st January, 1829, in cases where the promise was before that day. HllUard V. Lenard, 1 M. and M. 297. Upon the different clauses of Lord Tenterden'sact, several cases have been decided. In an action by an administratrix in which the statute of limitations was pleaded, it appeared that the cause of action arose more than six years before, but that within six years the defendant and the agent of the plaintiff had gone over the items of the account, and struck a balance which the defend- ant promised verbally to pay ; it was objected that this v/as within the 9 Geo. IV. c. 14 ; but Vaughan B., said, " I think the plaintiff has shown a good cause of action upon the count, on an account stated. She does not go upon the original debt at all. I take the statute to apply to cases where you go for the original debt, and then give some evidence of an acknowledgment to rebut the pre- sumption raised by the statute of limitations, that the debt has been satisfied." Smith v. Forty, 4 C. and P. 126." In an action on a bill of exchange two letters were relied on to take the case out of the statute ; the first stated that the defendant would feel obliged by his correspondent's offer of assistance to settle with Mr. F. (the defendant), and in the present state of his affairs he could only say he should f(2el much indebted to Mr. F. to withdraw his outlawry, and that Mr. F.'s claims should receive that attention which, as an honourable man, he considered them to deserve. In the se- cond letter the defendant stated that he was ready to do any thing, and every thing, to satisfy Mr. F. and all his creditors. There was no evidence that the defendant had been outlawed in the action. The Court held ihat this was not a sufficient acknowledgment. Per Tindal C. J., " The question is, whether these letters consti- tute a distinct and unqualified acknowledgement of an existing debt. Now the first letter points to a debt on which the defendant * 19 Eng. Com. Law Reps. 305. Sd'off. 257 had been proceeded against to outlawry, and though this record might not of necessity show whether the defendant had been out- lawed or not, yet unless the piaintilF proved that circumstance, iiis claim would not appear to be one to which the acknowledgment in the letter could apply ; but neither of the letters import such a direct and unqualified acknowledgment of a debt as would author- ise the Court in implying a promise to pay. They import no more than an offer on thepart of the defendant to surrender his income with a view to an arrangement with his creditors, provided he should be allowed time to arrange his affairs. Fearn v. Lewis, 6 Bi7igh. 349,^ 4 C. a?id P. 173,^ S. C. With regard to the payment of interest it has been held that a payment by one of the makers of a joint and several promissory note takes the case out of the statute, in the same manner as be- fore the passing of the 9 Geo. IV. Chippendale v. Thurston, 1 M. and M. 411. See Pease v. Hirst, 10 B. and C. 122. Acknoicledgment — bij ivhom.'] The acknowledgment must be made, under Lord Tenterden's Act, by the party chargeable. An acknowledgment by a person to whom the defendant has referred, and who has made payments for the defendant, was formerly suf- ficient. Burt V. Palmer, 5 Esp. 145. The cases relating to part payment are still to be considered authority so far as they apply to the payment of interest, which is excepted from the operation of Lord Tenterden's Act. Part payment by one of several makers of a joint and several promissory note, has been held to be such an acknowledgment as to take the case out of the statute, as against all the makers ; Whitcomb v. Whiting, Doiigl. G52 ; see 1 B. and A. 467, 2 B. and C. 28. 30 ;« though the others have signed it as sure- ties only ; Perham v. Raijnal, 2 Bingh. 306 ;'' but it was ruled by Lord EUenborough, that it is not sutKcient merely to show a pay- ment by a joint maker of a note to the payee within six years, without showing that it was made on account of the note ; for an acknowledgment to bind a partner ought to be clear and distinct ; Holmes v. Green, 1 Stark. 488 ;' so where A. and B. made a joint and several promissory note, and A, died, and ten years after his death B. paid interest upon the note, it was held that such pay- ment did not take the case out of the statute, so as to make A.'s ex- ecutors liable ; for B. and the executors did not remain jointly lia- ble, nor were they liable in the same capacity. Atkins v. Tred- gold, 2B. and C. 23." And it was ruled that, as against an execu- tor, an acknowledgment merely is not sufhcient to take the case out of the statute, but there must be an express promise, and if there are several executors, a promise by all. Tullock v. Dunn, R. and M. 416. So by Lord Tenterden's Act, where there are two or more joint contractors, or executors, or administrators, there • 19 Eng. Com. Law Reps. 98. » 19 Id. 326. ? 9 Jd. 14, 1.5. •> 9 Id. 413. ' 2 Id. 479. k 9 Id. 12. 83 258 Jlssumpsit. — Defence. must be a written promise or acknowledgment by each. Where an action was brought against A. and B. and C, his wife, upon a joint promissory note, made by A. and C. before her marriage, and the promise was laid by A. and C. before her marriage, and the statute of limitations was pleaded, upon which issue was joined, it was held that an acknowledgment o^ the note by A. within six years, but after the intermarriage of B. and C, was not evidence to support the issue. Pittam v. Foster, 1 B. and C. 248.' Acknou-Icdgjnent — to ichom.'] An acknowledgment, being ca'i- dence of a new promise, must be to a person who is in existence to receive it ; and therefore in an action by an executrix, a statement by the defendant to her, that " the testator always promised never to distress him for it," was held to be no evidence of a promise to pay, made to the testator within six years. Ward v. Hiinter, 6 Taunt. 210."' 1 B. and C. 251." An acknowledgment by the ac- ceptor of a bill that he was indebted on it to the payees, but that he was not indebted to the drawer, there being no consideration for the bill, is not sufficient to take the case out of the statute, in an action by the drawer. Easterhy v. Pidlen, 3 Stark. 186.° An acknowledgment made to a stranger that the debt is owing to the plaintiff, is sufficient; Peters v. Broicn, 4 Esp. 46 ; so an acknow- ledgment within six years, in a deed between the defendants and third persons, of the existence of a debt due to the plaintiffs who were strangers to the deed, is sufficient tc^ take the case out of the statute. Mountstephen v. Broohe, 3 B. and A. 141 ;" and see Clarke V. Hougham, 2 B. and C. 149.i HaHidafj v. Ward, 3 Camph. 32. An acknowledgment made to an executor or administrator, will not sup- port a count laying the promise to the testator, or intestate. Sarell V. Wine, 3 East, 409, 2 Saund. 63, g (ji). Acknoidedgment — icliat sufficient^ In many cases a very slight acknowledgment has been held sufficient.* Thus, where in an- swer to an application for money due from the defendant, and C. the defendant wrote, " I received your letter, and beg leave to re- fer you to my trustee Mr. W. H. on this complicated business. I should be glad to be informed how you have settled it with C," Lord Kenyon held the acknowledgment sufficient. Baillie V. Lord Inchiquin, 1 Esp. 435. " What an extravagant bill you have delivered me!" is an acknowledgment of some money be- ' 8 Eng. Com. Law Reps. 67. «" 1 Id. 359. " 8 Id. C8. •14 Id. 176. P3ld. 245. 19^.47. *TIie doctrine relating to tiie statute of limitations has undergone a great change and the courts now endeavour to construe it fairly, instead of evading it, as they formerly did. In the case o? Bell v. Morrison, 1 J^e/frs, 351, the Supreme Court of the U. S. say, " The statute of limitations, instead of being viewed in an unfavour- able light, as an unjust and discreditable defence, should have received such sup- port from Courta of Justice, as would have made it what it was intonded,em- Set-off. 259 mg due. Lawrence v. Worrall, Peake, 93. In an action on a prom- issory note the following acknowledgment was held sufficient, the defendant not showing that there were other matters beside the promissory note to which the acknowledgment could refer. " Bu- ness calls mcj to L. Should 1 be fortunate in my adventures you may depend on seeing me in B, in less than three weeks, otherwise I must arrange matters with you as circumstances will permit." Frost V. Bengough, 1 Bingh. 26Qj See also Co/ledge v. Horn, 3 Bingh. 119.' So, " I will not pay ; there are none paid ; and I do not mean to pay unless obliged; you may go and try." Doicthwaiie V. Tebbutt, 5 M. and S. 75. See 4 B. andR. 179.' See also Fearn v. Lewes, G Bingh. 349," ante, p. 257. An acknowledgment after ac- tion brought is sufficient. Yea v. Fouraker, 2 Burr. 1099. Acknowledgment — what not sufficient?^ Where in answer to a letter from the plaintitl's attorney, the defendant wrote, " Sir, as soon as I am able to attend to my concerns, I shall wait on Capt. C. (the plaintitr,) whom I shall be able to satisfy respecting the mis- understanding which has occurred between us," Gibbs, C. J., thought it not sufficient to take the case out of the statute. Craig v. Cox, Holt, 380.'^ So where in answer to a demand for charges relative to the grant of an annuity, the defendant said, " He thought it had been settled at the time the annuity was granted ; that he had been in so much trouble since, that he could not recollect any thing about it." Hellings v. Shaw, 1 B. Moore, 340, 7 Taunt. 611,^ S. C. So where the defendant, having denied the existence of the debt, said, on being requested to look at documents in proof of it, " It is no use for me to look at them, for I have no money to pay it now." Snook V. Mears, 5 Price, 636. So where the defendant referred the plain- tiflfto his attorney, " who was in possession of his determination and abiHty." Bicknell v. Keppell, 1 JV. R. 20. Where the acknowledg- ment was, " I cannot afibrd to pay my new debts, much less my old ones," and the jury negatived the acknowledgment, the court refused a new trial. Knott v. Farren, 4 D. and R. 179/ So, '* 1 will see my attorney, and tell him to do what is right. Miller v. Caldwell, 3 D. and R. 267.^ So where the defend- ant on being arrested said, " I know that I owe the money but (he bill 1 gave was on a three-penny receipt stamp, and I will never pay it ;" the acknowledgment was held insufficient. A'Court V. Cross, 3 Bingh. 329.^^ Where the expressions of '8 Eng. Com. Law Reps. 317, '111(1.59. «lGId. 191. « 19 Id. 98. »3Id. 134. w 2 Id. 236. M6 Id. 191. 7 16 Id. 168. ^llld. 124. phatically to be, a statute of repose. It is a wise and beneficial law, not designed merely to raise a picsumplion of payment of a just debt, from lapse of time ; but to afford security against state demands, after the true stale of the transaction may have been forgotten, or be incapahic of explanation, by reason of the death or removal of witnesses." If the bar of the statute is sought to be removed by the proof of a new prom- ise, that promise, as a new cause of action, ought to bo proved in a clear and ex- plicit manner, and be in its termi unequivocal and determinate; tnd if any con- ' ditions are annexed, they ought to bo ihown to be performed. 2G0 Assumpsit. — Defence. the defendant are ambiguous, it is a question of fact for the jury whether they amount to an acknowledgment of the debt. Lloyd v. Muund, 2 T. R. 760. AclnwirJedgment — xchcn accompanied with denial of liahility.'] Where the defendant acknowledges the debt, but insists at the same time that the statute bars it, such acknowledgment has been held in several cases to take the case out of the statute. Bryan v. Horse- ?nan, 1 East, 509. Rucker v. llannay, Id. 004 (??). Clarke v. Brad- shair, o Ksp. 157, Lcaper v. Tatton, 16 East, 420; but see Rotccroft V. Lofnas, 4 M and S. 457, Coltman v. Marsh, 3 Taunt. 380. Where the defendant acknowledges the debt, but insists that it is paid or discharged, the whole of his admission must, as it seems, be taken toge'tlier, vide ante, p. 34, and the case will not be taken out of the statute. Thus, where the defendant said, " I have paid the debt, and will send you a copy of the receipt," but such copy was never sent. Lord Ellenborough held the acknowledgment insuffi- cient. Birk v. Guy, 4 Esp. 184. But in another case where the acknowledgment was, " that he would satisfy the plaintiff, for he could show his receipt," it was held that the defendant was bound to produce a receipt, and that it was at all events a sufficient ac- knowledgnient to go to a jury, upon his failing to produce a receipt. Jinon. cited Holt, 381.^ So where the acknowledgment was, " You owe me more money, I have a set-off against it," it was held (Best, J,, diss.) not to take the case out of the statute. Sican v. Soivell, 2 B. and A. 759. So where on application for the amount of a bill the defendant said, "that there had been such a bill, but that the plaintiif and his de- ceased partner had received the money, and that there was a bal- ance due to him (the defendant) from the executors of the deceas- ed," the acknowledgment was held not to be sufficient, and it was doubted whether the plaintitf could go into evidence of the account between the deceased partner and the defendant to falsify what the latter said. Beale v. Nind, 4 B. and A. 568." It seems, however, that where the defendant, in his acknowledgment, rests his discharge upon a written instrument to which he refers with precision, evi- dence of that instrument may he given to show that it does not op- erate as a legal discharge. Partington v. Bucher, 6 Esp. 66. Hel- lings V. Shaw, 1 B. Moore, 344. <= Beale v. JVind, 4 B. and A. 572." See also De la Torre v. Salkeld, 1 Stark. 7.* Easterby v. Pullen, 3 Stark. ISo." W^here the acknowledgment was, " I acknowledge the receipt of the money, but the testatrix gave it me," it was held not sufficient to take the case out of the statute.* Owen v. Woolley, B. a: p. 148. • 3 Eng. Coin. Law Reps. 134. >> 6 Id. 517. « 2 Id. 236. JSId. 270. « 14 Id. 17G. * The acknowledgment must be an unqualified one of a present existing' debt, to raise a valid promise to pay; and if it be qualified in a way to repel the pre- sumption of a promise to pay, it is not evidence of a promise. Eckert v. Wilson, 12 Serg. &- Ilawle,597; see also 1 Penn. Rep. 137, 138. Tender. 261 Acknoidedgment — conditional.'] Where the acknowledgment is conditional it has been held that the plaintiff must show the condi- tion performed; thus where the defendant promised to pay the debt when he was able, Lord Kenyon ruled that the plaintiff was bound to show that the defendant was then of sufficient ability to pay, adding, that it had been so ruled before by Eyre, C. J. Davies V. Smith, 4 Esp. 35; and see Besford. v. Saunders, 2 H. BL 116. So where the promise was, " I cannot pay the debt at present, but 1 will pay it as soon as I can," the Court of King's Bench held that it was necessaary for the plaintiffto show the defendant's ability to pay. Tanner v. Smart, 6 B. and C. OOS.' Ayton v. Bolt, 4 Bingh. 105.' A'Court V. Cross, 3 Bingh. 329. But where th'e defendant said, that if certain other persons paid he should do the same, Lord EUenborough held that the plaintiff was entitled to recover with- out proof that the other persons had paid. Loiceth v. Fothergill, 4 Campb. 185. So where the defendant promised to pay the debt by instalments if time were given, Lord EUenborough was of opi- nion that this was sufficient, and the plaintiff recovered without proof of time being given. Thompson v. Osborne, 2 Stark. QS."" See also Campbell v. Sewell, 1 Chitty, 609.' Fleming v. Hayne, 1 Stark. 370." Mutual accounts^ Such accounts as concern the trade of mer- chandise between merchant and merchant are excepted from the operation of the statute. Where there have been mutual current and unsettled accounts between the parties, and any of the items are within six years, such items are evidence (under the replication that the defendant did promise, &-c.) as an admission of there being an open account, so as to take the case out of the statute, like any other acknowledgment. Catling v. Slwidding, 6 T. R. 189, 2 Saund. 227, a (n). But where all the items are on one side, the statute is a bar to all demands above six years standing. Cotes v. Harris, B.JSI. P. 149. Where there are mutual accounts, but no item of account at all within six years, the plaintiff may reply specially to the plea of the statute, that' the accounts are merchants' accounts. 2 Saund. 127, c (n). But it has been held in equity that merchants' accounts are within the statute, if they have ceased six years, jBar- ber V. Barber, 18 Ves. 286 ; and see Jones v. Pengree, 6 Ves. 580, Martin v. Heathcote, 2 Eden, 169. The clause in the statute as to merchants' accounts is not confined to persons actually merchants. Catling V. Skoulding, 6 T. R, 191. Tender, A plea of tender operates like the payment of money into court as an admission of the contract stated in the declaration. Cox v. Brain, 3 Taunt. 95. Thus in. an action on a guarantee it super- '13 Eng. Com. Law Reps. 273. « 13 Id. 361. " 3 Id. 264. ' 18 Id. 175. k 2 Id. 431. 262 JJssumpsit. — Defence. sedes the necessity of proving it to be in writing. Middhton v. Brewer, Peake, 15. By ichom a tender must he made^ The tender need not be made by the debtor himself, it is sufiicicnt if made by bis agent ; and a tender by an agent, at bis own risk, of more than the money given by his principal, is good. Read v. Goldring,2 M. andS. 86. To vhom a tender must he 7nade.'] A tender to a person autho- rised by the creditor to receive money for bim, is sufficient. Good- land V. Blewctk, 1 Canifh. All. And where a clerk who was in the ordinary, iiabit of receiving money for bis master, was directed by his master not to receive the sum in question, for that he had put it into the hands of his attorney, and the clerk, on tender made, refused to receive the money, assigning the reason, it was held to be a good tender to the principal. Moffat v. Parsons, 5 Taunt. 307.' A tender to the atforney on the record is a good tender to the prin- cipal. Crozer v. Pillhig,'" 4 B. and C. ante, p. 247. And a tender to a person in the office of the plaintiff 's attorney, who is referred to on the subject by a clerk in the office, and who refuses the ten- der as being of an insufficient sum, is a good tender without show- ing who that person was. Wihnott v. Smith, 1 M. and M. 238, 3 C. and P. 453," S. C. ; and see Barrett v. Dure, Id. 200, ante, p. 248. Where the money was brought to the house of the plaintiff, and delivered to his servant, who retired, and appeared to go to the master, it was held to be evidence to go to the jury, from which thev might infer that a tender was made. Anon. 1 Esp. 349. A tender to one of several partners is sufficient. Douglas v. Patrick, 3 T. R. 683. But a tender of a debt due to a bankrupt's estate to a collector employed by the solicitor under the commission is, as it seems, bad, Blowv. Russel, 1 C. and P. 365." Tender, to what amount^ If a man tenders more than he ought to pay, it is good, for the other ought to accept so much as is due to him. Wade's case, 5 Rep. 115, c. Astley v. Reynolds, 2 Str. 016. But it seems that such a tender is only good where it is made in monies numbered, so that the creditor may take what is due to him. Therefore a tender of a 51. note, from which the creditor is desired to take 3/. 10., is not good. Betterhee v. Davis, 3 Camph. 70. Rohinson v. Cook, 6 Taunt. 336. Watkins v. Rohh, 2 Esp. 710. Brady v. Jones, 2 D. and R. 305.P So where a party has several demands for unequal sums against several persons, a tender of one sum for the debts of all, is not a good tender of one of the debts. Strong V. Harvey, 3 Bingh. 304." But where a greater sum is ten- dered than the sum pleaded, and the creditor refuses to receive it on the ground that the amount is not sufficient, and not on account of the form of the tender, the tender is, it seems, good. Black v. 'lEng.Com. Law Reps. 114. -10 Id. 271. » 14 Id. 586. •Hid. 421. » 16 Id. 87. r)don to K]^som and back, and, in returning, the postilions damaged the carriage of a third person, it was held that such third person might sue the livery-stable-keeper for the damage. Smith v. Lawrence, 2 M. and R. 1 ; and see Good- man V. Rennell, 1 Moore and P. 241.* In case for negligence against the proprietors of a stage-coach, where it appeared in evidence that one of the defendants was driving at the time when the accident happened, the jury having found that it happened through his ne- gligent driving, it was held that the plaintitf might maintain case against all the proprietors, though he might perhaps have been en- titled to sue the one who drove, in trespass. Moreton v. Harden, 4 B. and C. 223 ;' and see post, " Trespass." In an action for negligent driving, some negligence must be prov- ed, and it is not sufficient merely to show an accident, unless it be of such a nature as to afford a presumption of negligence ; thus proof that a stage-coach broke down, raises a presumption that the accident arose either from the unskilfulnessof the driver, or the in- » 2 Eng. Com. Law Reps. 387. »> 9 id. 356. c 12 Id. 323. 14 Id. 445. ' 14 Id. 429. " 3 Id. 234. ' 11 Id. 120. »2ld. 454. Case for JVegligence. 275 the defendant, is placed in such a situation as obliges him to adopt the alternative of leaping from the coach, or remaining at certain peril, and he leaps, and is hurt, the defendant is liable ; but it must appear that the leaping was a prudent precaution for the purpose of self-preservation. Jones v. Boyce, 1 Stark. 493 '. The defendant's servant who drove the carriage is not a competent wit- ness to. disprove the negligence, ante, p. 82 ; and in an action of neg- ligence for running against the plaintiff's cart with a dray, the plaintiff cannot call his servant, who drove the cart, without re- leasing him. Miller V. Falconer,! Cumjjb. 251; ante, p. 82. Defendant's liability, in case of damage by animals.'] The owner of a wild and ferocious animal, as a lion, a bear, &.c. which es- capes and does damage, is liable, without any proof of notice of the animal's ferocity ; but where the damage is done by a domestic animal, as a bull, a dog, &c. the plaintiff must show that the de- fendant knew that the animal was accustomed to do mischief; see B. V. Huggins, 2 Ld. Raym. 1583; B. N. P. 76; and if a man keeps a dog which is accustomed to bite sheep, &c., and the owner knows it, and notwithstanding keeps the dog still, and afterwards the dog bites a horse, this is actionable ; per Powell, J., Jenkins v. Turner, 1 Ld. Raym. 110; and where the allegation in the decla- ration was, that the dog was accustomed to bite mankind, and that the defendant knew it, it was held by Abbott,. J., that proof that the defendant had warned a person to beware of the dog lest he should be bitten, was evidence to go to the jury in support of the allegation; Judge v. Cox, 1 Stark. 285;° see 1 B. and .f\. 623; though where it was alleged that the defendant knew that the dog was accustomed to bite sheep, the Court of King's Bench held that proof that the dog had jumped at a man, ahd had chased sheep, was not evidence to support the action. Hartley v. Halliicell, 2 Stark. 214," 1 B. and A. 620, S. C. So in an action for keeping a dog which bit the plaintiff. Lord Ellenborough held it not to be sufficient to show that the dog was of a fierce and savage disposi- tion, and usually tied up by the defendant, and that the defendant had promised to make a pecuniary satisfaction to the plaintiff. Beck V Dyson. 4 Caynph. 198. It does not appear from the report of this case, whether there was an allegation that the dog was ac- customed to bite mankind. See 2 Stark. 214 (n).'' Where a dog has once bit a man, and the owner having notice thereof, lets him go about, or lie at his door, an action will lie against him by a person who is bit ; though it happened by such person treading on the dog's toes, for it was owing to the defendant not hanging the dog ; Smith v. Pelali, 2 Str. 1264 ; so where the defendant's dog was reported to be mad, and the defendant tied him up, but he ' 2 Eng. Com. Law Reps. 482. • 2 Id. 392. p 3 Id. 318. 1 3 Id. 320. 276 Case for Negligence. broke loose and bit the plaintiff's child, who died of hydrophobia, it was held that the defendant was liable in damages to the amount of the apothecary's bill for attending the child ; and Lord Kenyon admitted evidence of reports in the neighbourhood that the dog had been bitten by a mad dog, to prove the scienter ; Jones v. Per- ry, 2 Esp. 482, differently reported Peake Ev. 292, 5th edit. ; but if a dog, accustomed to bite, be let loose at night for the protection of the defendant's yard, and the injury arise from the plaintiff in- cautiously going into the yard, after it has been shut up, no action will lie. Brock v. Copeland, 1 Esp. 203. A person has a right to keep a tierce dog to protect his property, but not to place it in or on the approaches to his house, so as to injure persons exercising a lav^^ful purpose in going along those paths to the house. Per Tin- dal, C. J., Sarch v. Blackburn, 1 M. and M. MSS. 4 C. and P. 297,'" S. C. See also Blackman v. Simmons, 3 C. and P. 138. The principle of these cases was discussed in Bird v. Holbrook, 4 Bingh. 628,' where it was held that a person who for the protection of his property sets a spring-gun without notice in a walled garden, is an- swerable in damages to a person, who, having climbed over the wall in search of a strayed fowl, is injured by the gun. Defendant's liability for not enclosing cellars, 4*c.] Where the tenant of a house was bound to repair it, but the landlord super- intended the repairs, and the cellar was left in a dangerous state and an accident happened, the landlord was held hable ; Leslie v. Pounds, 4 Tau7it. 649. Payne v. Rogers, 2 H. Bl. 349 ; so where the defendant had employed a bricklayer fo make a sewer, who left it open, iu consequence of which the plaintiff fell in and broke his leg, the defendant was held liable ; Sly v. Edgley, 6 Esp. 6 ; see 5 B. and C. 559 ;' so the occupier of a house is bound to rail in the area, and if an accident happen, it is no defence that the premises had been in the same situation for many years before the defend- ant came into possession of them. Coupland v. Hardingham, 3 Campb. 398. Where A. contracted with B. to repair his (A.'s) house for a sti- pulated sum ; and B. contracted with C. to do the work; and C. with D. to furnish the materials, and the servant of D. brought a quan- tity of lime to the house, and placed it in the road, by which the plaintiff's carriage was overturned, it was held that A. was liable for this damage. Bush v. Steinman, 1 B. and P. 404 ; see 4 M. and S. 29 ; 5 B. and C. 560.* So where an incorporated water-works' company contracted with certain pipe-layers to lay down pipes, and the pipe-layers employed workmen, by whose negligence an accident happened. Lord Ellenborough held the company liable. Matthews v. West London Water Works Co., 3 Campb. 403; and ' 19 Eng. Com. Law Reps. 394. • 15 Id. 91. « 12 Id. 311. Case against Carriers. 277 see Wild v. Gas Light Co., 1 Stark. 189 ;" and Henley v. Mayor of Lynn, 5 Bingh. 91.' DefendanVs liability — innkeeper.'] The liability of an innkeeper, very closely resembles that of a carrier. He is prima facie liable for any loss not occasioned by the act of God or the king's enemies, though he may be exonerated where the guest chooses to have the goods under his own care. Per Bayley, J., Richmond v. Smith, 8 B. and C. 11.'^ Where a traveller desired to have his luggage taken into the commercial room, whence it was stolen, it was held that the innkeeper was liable though he proved that according to the usual practice of his house, the luggage would have been car- ried into the traveller's bed-room if no order had been given. Ibid. But where a traveller engaged a private room for the purpose of showing his goods, and was told that there was a key in the door, it was held that as he had taken the goods under his own custody, the innkeeper was not liable. Burgess v. Clements, 4 M. and S. 306. Defence. In an action against coach proprietors for negligence, the defend- ants may show that the damage was occasioned by mere accident ; see supra and Crofts v. Waterhouse, 3 Bingh. 321 ;'' Lack v. Sew- ard, 4 C. and P. 106;'' and where the plaintiff rests his case on the presumption of negligence, arising from the fact of the coach breaking down, the defendant may show that the coach was exam- ined a few days before the accident, and no flaw discovered ; and that the coachman, a skilful driver, was driving in the usual track and at a moderate pace. Christie v. Griggs, 2 Campb. 81. Where an injury arises from an obstruction in a highway, the defendant may show that the plaintiff by using common and ordinary caution might have avoided it. Butterfield v. Forrester, 11 FmsI, 60. So the defendant may show that the immediate and proximate cause of the injury, was the unskilfulness or negligence of the plaintiff. Flower v. Adam, 2 Taunt. 315. See Cruden v. Fentham, 3 Esp. 685. Lack V. Seward, 4 C. and P. 106.*' So in an action for negligently keeping a mischievous animal, the defendant may show that the ani- mal was properly at large, and that the accident happened by the plaintiff 's own misconduct. Brock v. Copeland, 1 Esp. 203; see Deane v. Clayton, 1 B. Moore, 225,^ 245.. CASE AGAINST CARRIERS. In an action on the case against a carrier for not carrying goods safely, the plaintiff must prove the defendant's character of car- • 2 Eng. Com. Law Reps. 350. » 13 Id. 376. « 13 Id. 143. M I Id. 119. t 19 Id. 290. « 2 Id. 183. 278 Case against Carriers. rier ; the delivery of the plaintiff's goods to him ; that the goods were not carried safely ; and the damage. The defendanVs character as carrier.'] The proprietors of stage coaches carrying goods ; the owners and masters of vessels ; Morse V. Slue, 2 Lev. 09 ; hoymen, ibid. Warded v. Moitrelijan, 2 Esp. 693; Mamng v. Todd, 1 Slarli. 92;-' wharfingers and bargemen, Rich. V. Kneeland, Cro. Jac. 330, are liable as common carriers. A carrier is in the nature of an insurer, and liable for every acci- dent except by the act of God or the king's enemies. Per Lord Mansfield, Forirard v. Pitlard, 1 T. R. 33. He is, therefore, liable for accidental fire. Ibid. Where a private person undertakes the carriage of goods he is liable, not as a common carrier, but ac- cording to the terms of his contract. Coggs v. Bernard, 2 Ld. Raym. 909. If a man travel in a stagecoach and take his portmanteau with him, though he has his eye on the portmanteau, yet the car- rier is not absolved from his responsibility ; but will be liable if the portmanteau be lost. Per Chambre, J., Robinson v. Dun7nore, 2 B. and P. 419, see Middleton v. Fowler, 2 Salk. 282. Where the only proof of the. defendant being a carrier from London was, that he kept a booking-office, and that on a board at the door were painted the words, " Conveyances to all parts of the world," Lord Tenterden was of opinion, that this was not sufficient, there being in London booking-othces not belonging to carriers. Upston v. Starh, 2 C. and P. 598." Where the contract is expressly made with the plaintiff, he need not prove that the goods are his property; but where the action is brought on the implied contract with the owner of the goods to car- ry them safely, the plaintiff must prove that he is owner, of which the bill of lading, if there be one, will be evidence. Ante, p. 179, Brown v. Hodgson, 2 Campb. 36, Dawes v. Peck, 8 1. R. 330. Evidence of the contract] Where, in order to prove the con- tract, the carrier's receipt for the goods is offered in evidence, it does not require a stamp, if the carriage does not exceed 20/. though the value of the goods is above that sum. Latham v. Rut- ley, R. aiid M. 13. The termini of the journey must be proved as laid. Turner v. Crachlin, 2 Starh. 385.*= But where it was averred that the plain- tiff delivered to the defendant a trunk to be put into a coach at Chester, to wit, at, &.c. and safely carried to Shrewsbury, and it appeared in evidence that the trunk was delivered to the defend- ant at the city of Chester, which is a county of itself, separate from the county of Chester at large, but within its ambit, it was held that this was not a material variance. Woodicard v. Booth, 7 B. and C. SOL" »2Eng. Com. Law Reps. 301. M 2 Id. 200. « 3 Id. 394. M4 Id. 48. Case acrainst Carriers. 279 ^o Delivery to defendant.'] In an action against the proprietor of a stage-coach for the loss of a parcel, it is sufficient to prove a de- livery of the parcel to the driver. Williams v. Causion, 2 Stark. 82/ Unless it appear that the delivery was not in the ordinary course of business, but to the driver to carry for his own gain. Butler V. Basing, 2 C. and P. eiS.' A delivery of goods on board ship must be to some officer accredited for that purpose, as to the mate. Cobban v. Doicne, 5 Esp. 43. If the master receive goods at the quay or beach, or send his boat for them, the owner's re- sponsibility commences with the receipt. Abbott on shijj. citing Molloy, b. 2, c. 2, s. 2. Fragano v. Long, 4 B. and C. 219.s Where the only proof of delivery was, that the goods were left at an inn- yard, where the defendant and other carriers put up, it was held to be insufficient. Sehcay v. Holloicay, 1 Ld. Raym. 46. So leaving goods at a wharf, piled up amongst other goods, without communi- cation with any one there, is not a delivery to the wharfinger. Buchnan v. Levi, 3 Campb. 414. Proof of the loss.'] It is incumbent on the plaintiff to give some evidence of negligence. Marsh v. Home, 5 B. and C. 327." Slight evidence of the loss will be sufficient in the absence of all proof on the part of the defendant. Thus where the plaintiff's shopman was called, who stated that he did not know of the delivery, and that the parcel could not have been delivered without his know- ledge, Bullock, B., held this sufficient to call on the defendants to prove a delivery. Griffiths v. Lee, 1 Carr. and P. 110.' But where the defendant has restricted his liability, by means of a notice, it may be necessary to prove gross negligence or misfeasance in the defendant. Defence. The defendant may show that the goods did in fact arrive safe, but whether he must prove a delivery at the residence of the plaintiff, seemS to depend on the circumstances of each particular case. It appears that in the absence of any express contract or usage, carriers are bound to deliver the goods at the house of the consignee. Hyde v. Trent and Mersey Navigation Co. 5 T.R. 389, Starr v. Crowley, 1 M^C and Y. 129, Dvff v. Budd, 3 B. and B. 182." And if it be the carriers' course of trade to deliver goods at the consignee's residence, they are clearly bound to do so. Golden v. Manning, 2 W. Bl. 916. If the carrier delivers the goods to a wrong person, he is liable in trover. Ross v. Johnson, 5 Burr. 282.5. Stephenson v. Hart, 4 Bingh. 483,^ post. Proof of notice restricting liability.'] The most usual defence in this action is, that the defendant has restricted his liability by a notice to that effect. In order to affect the plaintiff with such no- •3 Eng. Com. Law Rcpe. 256. f 12 Id. 287. t 10 Id. 313. h Hid. 243. ' 11 Id. 333. k 7 Id. 399. ' 15 Id 47. 280 Case against Carriers. tice, the defendant may show that the notice was affixed in a con- spicuous situation in the office to which the goods were brought by the plaintiff or his servant, Leeson v. Holt, 1 Stark. 186,'" provided the servant can read. Davis v. Willan, 2 Stark. 279." And if the servant who carried the goods to the office did not in fact read the notice, it will be no evidence of the notice. Kerr v. Willan, 2 Stark. 53," and see Brooke v. Pickworth, 4 Bingh. 222." So notice may be conveyed by handbills or advertisements in newspapers, but a carrier who circulates handbills, wherein he refuses to be accountable for parcels beyond a certain value, must be taken to have expressed in such handbills all the terms of the special con- tract whereon he receives goods, and cannot further restrict his liability by a board in his office. Cobden v. Bolton, 2 Campb. 108. And where two notices have been given, the carrier is bound by that which is least beneficial to himself. Munn v. Baker, 2 Stark. 255.1 A notice stuck up at the carrier's office is not sufficient to discharge him from his common law liability, where the goods have been delivered to his carter, not at the office. Clayton v. Hunt, 3 Campb. 27. The notice in the office ought to be in such large characters that no person delivering goods there can fail to read it, without gross negligence. Per Cur. ibid. And therefore where a handbill on the office-door stated in large characters the advan- tages belonging to the waggon, and in a very small character at the bottom the restrictive notice, Lord Ellenborough held it not enough to limit the defendant's liability. Butler v. Heane, 2 Campb. 415. In order to prove that the plaintiff was acquainted with the notice, it has been customary to show that he was in the habit of reading the newspaper in which it was inserted. Leeson v. Holt, 1 Stark. 186.™ But it is not sufficient to prove that the notice w^c inserted in a paper which circulates in the pl?ce m wHich the p.ifty 11. cs; soiiie proot must be given that he took in the news- paper in question. Proprietors of JM'orwich JVavigation v. Theobald 1 M. and M. and see Boydell v. Drummond, 11 East, 144 {n). Where the advertisement had been inserted in the Gazette, but there was no proof that the plaintiff read the Gazette, Lord Ellen- borough iu one case said he would receive the evidence, but that unless it were proved that the party were in the habit of reading the Gazette, it would be of little avail. Ibid. However, in a sub- sequent case the same judge was of opinion that this evidence could not be received without proof of the plaintiff's having read the Gazette, since he might be expected to look into the Gazette for notices of dissolution of partnership, but not for notices by carriers. Munn V. Baker, 2 Stark. 255." In a very late case where it was proved that the plaintiff had taken in for three years a weekly newspaper in which the defendant's restrictive notice had been al- ways advertised, and the jury notwithstanding found a verdict for » 2 Eng. Com. Law Reps. 349. » 3 Id. 346. " 3 Id. 241. v 13 Id. 404. -3 3 id. 339. Case acrainst Carriers. 281 & the plaintiff", the Court of Common Pleas thought the verdict per- fectly right, and that it could not be intended that a party read all the contents of any newspaper he might chance to take in. They said that carriers who wished by means of notice to divest them- selves of a common law responsibility, were bound to fix upon their employers a knowledge of such notice, and that they might easily do so by delivering to every person who brought a parcel for conveyance a printed paper containing the notice, and a new trial was refused. Ron-ley v. Home, 3 Bingh. 2j h:o the defendant may bring home the notice to the plaintiff by showing that when other parcels were delivered to'him a ticket was also delivered, contain- ing the notice. Mayhew v. Emnes, 3 B. and C. 603.' To prove the contents of a notice painted on a board inlaid in the wall, an examined copv is suflicient. Cobden v. Bolton, 2 Campb. 108. It does not destroy the operation of a notice restraining the lia- bility of the defendants to 5/. unless the goods be entered and paid for accordingly, that the goods were known to the carrier to be of greater value, and that the additional rate of carriage was not de- manded by him ; Ma7'sh v. Home, 5 B. and C. 322,* Levi v. V/ater- house, 1 Price, 280 ; nor that on occasion of other losses the carrier made allowances to the plaintiff" for damages, without inquiring into the cause of such damage. Evans v. Soide, 2 M. and S. 1. Though the notice will be inoperative in case the carrier has been guilty of negligence. Gamett v. Willan, 5 B. and A. 53," Sleat v. Fagg, 5 B. and A. 347,^ Duff v. Budd, 3 B. and B. 176.- But the plaintiff" will not be allowed to complain of any negligent performance of the contract by the carrier where that negligence has been occa- sioned by the plaintiff's own act, as by his treating the parcel as a thing of no value. Per Abbott, C. J., Sleat v. Fd^g, 5 B. and A. 347,^ Batson v. Donovan, 4 B. and A. 21.'^ Thus where the plaintiff sent a parcel of value by the defendant's coach, using an artifice to disguise [200 sovereigns enclosed in 6 lbs. of tea], and (he parcel was stolen by the defendant's servants, it was held that the plain- tiff could not recover. Bradley v. Waterkouse, 1 M. and M. 154. Stat. 1 Will IV. c. 08.] Great alterations have been introduced with regard to the responsibility of carriers by the 1 Will. IV. c. 68 (commencing 23d July, 1830), reciting that whereas by reason of the frequent practice of bankers and others of sending by the public mails, stage coaches, waggons, vans, and other public' con- veyances by land for hire, parcels and packages containing money, bills, notes, jewellery, and other articles of great value in sma'll compass, much valuable property is rendered liable to depredation, >■ 11 Eng. Com. Law Reps. 3. ■ 10 Id. 195. ' 11 Id. 243. •7 Id. 19. »7Id. 123. w 7 Id. 399. . 6 Id. 333. 36 282 Case against Carriers. aftd the responsibility of mail contractors, stage-coach proprietors, and common carriers for hire, is greatly increased : and whereas through the frequent omission by persons sending such parcels and packages to notify the value and nature of the contents thereof, so as to enable such mail contractors, stage-coach proprietors, and other common carriers, by due diligence, to protect themselves against losses arising from their legal responsibility, and the diffi- culty of fixing parties with knowledge of notices published by such mail contractors, stage-coach proprietors, and other common carri- ers, with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses. Sec. 1. No mail contractor, stage-soach proprietor, or other com- mon carrier by land for hire, shall be liable for the loss of or injury to any article or articles or property of the descriptions following ; (that is to say), gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time- pieces of any description, trinkets, bills, notes of the governor and company of the banks of England, Scotland, and Ireland respec- tively, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign, stamps, maps, writings, title-deeds, paintings, engravings, pictures, gold or silver plate or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs, or lace, or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire or to accompany the person of any passenger in any mail or stage coach or other public conveyance, when the val- ue of such article or articles or property aforesaid contained in such parcel or package shall exceed the sum of ten pounds, unless at the time of the dehvery thereof at the office, warehouse, or re- ceiving house of such mail contractor, stage-coach proprietor, or other common carrier, or to his, her, or their book-keeper, coach- man, or other servant, for the purpose of being carried or of ac- companying the person of any passenger as aforesaid, the value and nature of such article or articles or property shall have been declared by the person or persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engage- ment to pay the same, be accepted by the person receiving such parcel or package. Sec. 11. When any parcel or package containing any of the articles above specified shall be so delivered, and its value and contents declared as aforesaid, and such value shall exceed the sum of ten pounds, it shall be lawful for such mail contractors, stage-coach proprietors, and other common carriers to demand Case against Carriers. 283 and receive an increased rate of charge, to be notified by some no- tice affixed in legible character in some public and conspicuous part of the office, warehouse, or other receiving house where such parcels or packages are received by them for the purpose of con- veyance, stating the increased rates of charge required to be paid over and above the ordinary rate of carriage as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles ; and all persons sending or delivering par- cels or packages containing such valuable articles as aforesaid at such office shall be bound by such notice, without further proof of the same having come to their knowledge. Sec. III. Provided always, that when the value shall have been so declared, and the increased rate of charge paid, or an engage- ment to pay the same shall have been accepted as hereinbefore mentioned, the person receiving such increased rate of charge or accepting such agreement shall, if thereto required, sign a receipt for the package or parcel, acknowledging the same to have been insured, which receipt shall not be liable to any stamp duty; and if such receipt shall not be given when required, or such notice as aforesaid shall not have been affixed, the mail contractor, stage- coach proprietor, or other common carrier as aforesaid shall not have or be entitled to any benefit or advantage under this act, but shall be liable and responsible as at the common law, and be liable to refund the increased rate of charge. Sec. IV. Provided always, that from and after the first day of September now next ensuing no public notice or declaration here- tofore made or hereafter to be made shall be deemed or construed to limit or in anywise affect the liability at common law of any such mail contractors, stage-coach proprietors, or other public com- mon carriers as aforesaid, for or in respect of any articles or goods to be carried and conveyed by them ; but that all and every such mail contractors, stage-coach proprietors, and other common car- riers as aforesaid, shall from and after the said first day of Septem- ber be liable, as at the common law, to answer for the loss or any in- jury to any articles and goods in respect whereof they may not be entitled to the benefit of this act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability notwithstanding. Sec. V. That for the purposes of this act every office, ware- house, or receiving house, which shall be used or appointed by any mail contractor or stage-coach proprietor or other such common carrier as aforesaid for the receiving of parcels to be conveyed as aforesaid, shall be deemed and taken to be the receiving house, warehouse, or office, of such mail contractor, stage-coach proprie- tor, or other common carrier ; and that any one or more of such mail contractors, stage-coach proprietors, or common carriers, shall 284 Case against Carriers, he liable to be sued by his, her, or their name or names only ; and that no action or suit commenced to recover damages for loss or injury to any parcel, package, or person, shall abate for the want of joining any co-proprietor or co-partner in such mail, stage-coach, or other pii])lic conveyance by land for hire as aforesaid. Sec. VI. Provided always, that nothing in this act contained shall extend or be construed to annul or in anywise atfcct any special contract between such mail contractor, stage-coach proprietor, or common carrier, and any other parties, for the conveyance of goods and merchandises. Sec. Yll. Provided also, that where any parcel or package shall have been delivered at any such oflice,and the value and contents declared as aforesaid, and the increased rate of charges been paid, and such parcels or packages shall have been lost or damaged, the party entitled to recover damages in respect of such loss or damage shall also be entitled to recover back such increased charges so paid as aforesaid, in addition to the value of such parcel or pack- Sec. VIII. Provided also, that nothing in this act shall be deem- ed to protect any mail contractor, stage-coach proprietor, or other common carrier for hii-e, from liability to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his or their employ, nor to protect any such coachman, guard, book- keeper, or other servant, from liability for any loss or injury occa- sioned by his or their own personal neglect or misconduct. Sec. IX. Provided also, that such mail contractors, stage-coach proprietors, or other common carriers for hire, shall not be conclu- ded as to the value of any such parcel or package by the value so declared as aforesaid, but that he or they shall in all cases be enti- tled to require, from the party suing in respect of any loss or inju- ry, proof of the actual value of the contents by the ordinary legal evidence, and that the mail contractors, stage-coach proprietors, or other common carriers as aforesaid, shall be liable to such damages only as shall be so proved as aforesaid, not exceeding the declared value, together with the increased charges as before mentioned. Sec. X. That in all actions to be brought against any such mail contractor, stage-coach proprietor, or other common carrier as aforesaid, for the loss of or injury to any goods delivered to be car- ried, whether the value of such goods shall have been declared or not, it shall be lawful for the defendant or defendants to pay money into court in tlie same manner and with the same effect as money may be paid into court in any other action. Case for Defamation. 285 CASE FOR DEFAMATION. In an action on the case for slander or libel, the plaintiff must prove the speaking of the words or the publication of the libel, the inuendos, the introductory averments essential to his case, the ma- lice of the defendant in certain cases, and the damage sustained. Proof of the speaking of the icmrls.'] Though the plaintiff need not prove the speaking of all the words laid in the declaration, yet it is necessary to prove some material part of them, and it is not sufficient to prove equivalent words of slander. Per Lawrence, J., Maitland v. Goldney, 2 East, 434, ante, p. 47. Thus a statement of words spoken affirmatively is not supported by proof of words spoken by way of interrogation. Barnes v. Holloicay, 8 T. R. 150. B. JV*. P. 5. Where the declaration avers that the defendant spoke certain words, it must be taken to mean that he used them as his own words, and if he repeated them as the words of another, it is a variance. M'Pherson v. Daniels, 10 B.and C. 274. Bell v. Byrne, 13 East, 554. Where the words laid were, " This is my umbrella, and he stole it from my back-door," and the words proved, " It is my umbrella, &c." it was held a variance, the word this importing that the umbrella was present (which in fact it was not). Walters V. Mace, 2 B. and A. 756. Where all the words constitute one charge, they must be all proved. Thus where the words laid were, " He is selling coals at one shilHng a bushel to pocket the money, and become a bankrupt to cheat his creditors," and the words " and be- come a bankrupt" were not proved, Eyre, C. J., held that the words constituted one general charge, and that the variance was fatal. Flower v. Pedley, 2 Esp. 491. But where the words omitted to be proved do not qualify or affect those proved, the omission is imma- terial. Thus, where the words stated were " 'Ware Hawk ; you must take care of yourself there ; mind what you are about;" and the plaintiff failed to prove the words " Mind what you are about ;" the variance was held immaterial. Orpwood v. Barher, 4 Bingh. 261 f see also Rutherford v. Evans, G Bingh. 451.'' Words laid as spoken in English are not proved by evidence of words spoken in a foreign language. Zenobio v. Axtell, 6 T. R. 162. Proof of the libel.'] A mere omission in setting out part of a libel is not fatal unless the sense of that which is set out is thereby varied. Taberi v. 7'ipper, 1 Ca?npb. 353; see 5 B. and A. 617.» But where a libellous paragraph contained two references, by which the words appeared to be in fact the language of a third person, speaking of the plaintiff's conduct, and those references were omitted in the declaration, it was held that the omission alter- y 13 Eng. Com. Law Reps. 4'24. ' 19 Id. 128. « 7 Id. 21 1. 286 Case for Defamation. ed the sense of the passage, and that the variance was fatal. Cart- in-ight V. Ifri^ht, 5 B. and A. (US;" see R. v. Solomon, R. and M. 253^ And wlicre the words laid were, " My sarcastic friend, by leaving out the repetition, etc." and those proved were, " my sar- castic friend MJjros, by leaving out," Slc, J^ord Ellenborough held the variance fatal, Tabart v. Tipper, 1 Ca7npb. 353. Where the omission or addition of a letter does not change the word so as to make it another word, the variance is not material. Per Ld. MansfieM, Beech's case, 1 Leach, 159, Sd ed. Thus " under- tood," for"" understood," is no variance. Ibid, case of indictment for perjuri/. Proof of publication of libel] Proof that the libel produced is in the defendant's handwriting, is said to be presumptive evidence of publication, so as to thrown the proof of non-pubHcation upon him. R. V. Beere, 1 Ld. Raijm. 417. Lamb's case, 9 Rep. 59, h.^ So printing a libel, unless qualified by circumstances, shall prima facie be understood to be a pubHshing, for it must be delivered to "the compositor, and the other subordinate workmen. Per Cur. Bald- ivin V. Elphinstone, 2 W. B. 1038. A written libel may be pub- lished in a letter to a third person, per Cur. ibid,, but the publica- tion of a libellous letter to the plaintiff himself, though it may be the object of an indictment, is not such a publication as to maintain an action. Phillips v. Jansen, 2 Esp. 614. But where the libel was contained in a letter sent by the defendant to the plaintiff, proof that the defendant knew that letters sent to the plaintiff were us- ually opened by his clerk, is evidence to go to a jury, of the defen- dant's intention that the letter should be read by a third person, so as to amount to a publication. Delacroix v. Thevenot, 2 Sta7'k. 63.= It was ruled by Lord Ellenborough, that where a person who has a copy of a libellous caricature, shows it to another at his request, it is not sulhcient evidence of publication to support an action. Smith V. Wood, 3 Campb. 323, sed qucere. The delivery of a libel- lous pamphlet by the governor of a colony to his attorney-general, not for any official purpose, is a publication. Wyatt v. Gore, Bolt, 229.*' The sale of a libel in the defendant's shop by his servant or agent there, for the defendant's benefit, is a publica- tion by the defendant, though he was not privy to the contents or sale. Com. Dig. Libel {B. 1). The delivery of a newspaper to the oflicer at the stamp office, is a sufficient publication to sustain an indictment for a libel in that paper. R. v. Amphlitt, 4 B. and C. 35.'= So proof that the defendant accounted with the officer of stamps for the duty on advertisements in the paper in question is evidence of publication. Cook v. Ward, 6 Bingh. 408.' Evidence that the libel was written by the defendant's daughter, who was authorised to make out his bills and write his general 7 Eng. Com. Law Reps. 210. « 3 Id. 245. ■" 3 Id. 111. '10^.275. '19 Id. 117. Case for Defamation. 287 letters of business, is not sufficient to charge the defendant, unless it can be shown that such Ubel was written with the knowledge or by the procurement of the defendant. Harding v. Greening, 1 B. Moore, 477.^ In order to show that the defendant had caused a printed libel to be inserted in a newspaper, a reporter to the paper was called, who proved that he had given a written statement to the editor of the newspaper, the contents of which had been com- municated by the defendant for the purpose of such publication, and that the newspaper produced was exactly the same, wilh the exception of one or two slight alterations not affecting the sense ; it was held that what the reporter published might be considered as published by the defendant, but that the newspaper could not be read in evidence, without producing the written account deliv- ered by the witness to the editor. Adams v. Kelly, R. and M. 157. Where a letter (whether sealed or not there was no direct proof) was put into the post-ofiice in the county of L., it was held by the Court of K. B. {Bayley, J. dub.) that it was a publication in L. R. V. Burdelt, 4 B. and A. 95." R. v. Watson, 1 Camph. 215. The proof of the publication of libels contained in newspapers is greatly facilitated by the stat. 3S Geo. III. c. 78, by which an affidavit or affirmation sworn by the proprietors and printers of every newspaper, or by a certain number of them, as therein di- rected, is to be delivered to the commissioners of the stamp duties, such affidavit to specify the names and abode of the printer, pub- lisher, and proprietors, if they do not exceed two, exclusive of the printer and publisher, and if they do, then of two proprietors and their proportional shares, and the description of the printing-house, and the title of the paper ; and by sec. 9, all such affidavits and affirmations or copies thereof, certified to be true copies, shall re- spectively, in all proceedings, civil and criminal, touching any newspaper, or other such paper as aforesaid, which shall be men- tioned in any such affidavits or affirmations, or touching any pub- lication, matter, or thing contained in any such newspaper, or other paper, be received and admitted as conclusive evidence of the truth of all such matters set forth in such affidavits or affirmations, as are by the said act required to be therein set forth, against every person who shall have signed, or sworn, or affirmed, such affidavits or affirmations, and shall also be received and admitted in like manner as sufficient evidence of the truth of all such matters against all and every person, who shall not have signed, or sworn, or affirmed the same, but who shall be therein mentioned to be a proprietor, printer, or publisher of such newspaper or other paper, unless the contrary shall be satisfactorily proved ; provided always, that if any such person or persons respectively, against whom any such affidavit or affirmation, or any copy thereof shall be ofTered «4 Eng. Com. Law Reps. 13. ^ 6 Id. 358. 288 Case for Defamation. in evidence, shall prove that he, she, or they, hath or have signed, sworn, or aHlrnied, and delivered to the said commissioners, or such officer as aforesaid, previous to the day of the date, or publication of the newspaper, or other such paper as aforesaid, to which the procecduigs, civil or criminal, shall relate, an affidavit or affirma- tion that he, she, or they hath or have ceased to be the printer or printers, proprietor or proprietors, or publisher or publishers of such newspaper, or other such paper as aforesaid, such person or per- sons shall not be deemed, by reason of any former affidavit or affirmation so delivered as aforesaid, to have been the printer or printers, proprietor or proprietors, or publisher or publishers of such paper, after the day on whicii such last-mentioned affidavit or affirmations shall have been delivered to the said commissioners, or their officer, as aforesaid. By sec. 11, it shall not be necessary after any such affidavit or affirmation, or a certified copy thereof, shall have been produced in evidence against the persons who signed the same, etc., or after a newspaper, or any such other paper as afore- said, shall be produced in evidence, entitled in the same manner as the newspaper, or other paper mentioned in such affidavit or copy, is entitled, and wherein the name or names of the printer or publisher, or printers or publishers, and the place of printing, shall be the same as those mentioned in such affidavit or affirmation, for the plaintiff to prove that the newspaper, or paper, to which such trial relates, was purchased at any house, shop, or office, belonging to or occupied by the defendant or defendants, or any of them, or hy his or their servants or workmen, or wdiere he or they by them- selves or their servants or workmen usually carry on the business of printing or publishing such paper, or where the same is usually sold. \^Y sec. 14,. in all cases, a copy of any such affidavit or affirmation, certified to be a true copy under the hand or hands of one or more of the commissioners or officers in whose possession the same shall be, shall upon proof made, that such certificates have been signed with the handwriting of the person or persons making the same, and whom it shall not be necessary to prove to be a commissioner or commissioners, or officer or officers, be receiv- ed in evidence as sufficient proof of such affidavit or affirmation, and that the same was duly sworn or affirmed, and of the contents thereof; and such copies so produced and certified, shall also be received as evidence that the affidavit or affirmation, of which they purport to be copies, have been sworn or affirmed according to this act, and shall have the same elTect for the purposes of evi- dence, to all intents whatsoever, as if the original affidavits or affirmations, of which copies so produced and certified shall pur- port to be copies, had been produced in evidence, and had been proved to have been duly so certified, sworn, or affirmed by the Case for Defamation. 289 person or persons appearing by such copy to have sworn or afiirm- ed the same as aforesaid. By sec. 17, the printer or publisher of every newspaper, or other such paper as aforesaid, shall upon every day upon which the same shall be published, or within six days after, deliver to the commissioners of stamps at their head office, or to some officer to be appointed by them to receive the same, and whom they are hereby required to appoint for that purpose, one of the papers so published upon each such day, signed by the printer or publisher thereof, in his handwriting, with his name and place of abode; and in case any person or persons shall make application to the commissioners, or such officer as aforesaid, in order that such newspaper, or other paper, so signed by the printer or publisher, may be produced in evidence in any proceed- ing, civil or criminal, the said commissioners, or such officers, shall at the expense of the party applying, at any time within two years from the publication thereof, either cause the same to be produced in the court in which the same is required to be produced, and at the time when the same is required to be produced, or shall deliver the same to the party applying for it, taking, according to their discretion, reasonable security at his expense for the returning the same to the said commissioners, or such officer ; and in case, by reason that the same shall have been previously required by any other person to be produced in any court, or hath been previously delivered to any other person for the like purpose, the same cannot be produced at the time required, or be delivered according to such application, in such case the said commissioners, or such their officer, shall cause the same to be produced, or shall deliver the same as soon as they are enabled so to do. Since this statute the production of a certified copy of the affi- davit and of a newspaper corresponding in the title and in the names and descriptions of printer and publisher, with the newspa- per mentioned in the affidavit, will be sufficient evidence of publi- cation. Mayne v. Fletcher, 9 B. and C. 382.' R. v. Hunt, iil State Trials, 375. But where the affidavit and the newspaper vary in the place of residence of the party, it is insufficient. Murray V. Souter, cited 6 Bingh. 414." Proof of introductory averment.'] All the introductory aver- ments essential to the plaintiff's case must be proved, but if imma- terial to the character of the libel itself, they need not be proved. Thus where the declaration stated that the plaintif}' was an attor- ney, and had been employed as vestry clerk to the parish of A., and that whilst he was such vestry clerk certain prosecutions were carried on against B. for certain misdemeanors, and in furtherance of such proceedings, and to bring the same to a successful issue, certain sums of money belonging to the parishioners were appro- < 17 Eng. Com. Law Reps. 401. >> 19 id. 119. 37 290 Case for Defamation. priatcd and applied to the discharge of the expenses incurred on account of the said proceedings, yet defendant, &c., intending, &c., to injure the plaintiliin his profession of an attorney, and to cause him to be esteemed a fraudulent practiser in his said profession, and in his office as vestry clerk, and to cause it to be suspected that the plaintiff had fraudulently applied money belonging to the parishioners, falsely and maliciously published, of and concerning the plaintiff, and of and concerning his conduct in his office of vestry clerk, and of and concerning the matters aforesaid, the libel, (tc, and it appeared on the production of the libel at the trial, that the imputation was that the plaintilFhad applied the parish money in payment of the expenses of the prosecution after it had termi- nated, it was held that this was no variance, because it did not al- ter the character of the libel, the fraud imputed to the plaintiff be- ing the same, whether the money was misapplied before or after the proceedings had terminated. May v. Brown, 3 B. and C. 113 ;' and per Abbott, C. J., ibid. " The allegation does not compel the plaintiff to prove formally, and precisely, that the libel relates to every part and particular of the matter so previously stated, but it satisfies all he has taken upon himself to prove, if he shows that the libel relates substantially to the matters previously alleged by way of introduction, in such manner as that the defamation con- tained in the libel is of the character and effect which the plaintiff has described." So where the declaration stated that the plaintiff was an attorney, and that the defendant, intending to injure him in his good name, and in his said profession of an attorney, published the libel of and concerning the plaintiff, a7id of and concerning him in his said pi(>fssion, and the plaintiff failed in proving, that at the time of the publication of the libel he was an attorney, it was held that this was not a fatal variance, the words of the libel being ac- tionable, though not used with reference to the professional charac- ter of the plaintiff" Lewis v. Walter, 3 B. and C. 138"' (n). But where the fact stated in the introductory averment, and connected with the libel by the words, " of and concerning," is ma- terial to the defamatory character of the libel itself, it njust be proved as stated ; thus where the declaration stated in the first count, that the plaintiff, a constable, had apprehended persons stealing a dead body, and had carried the body to Surgeons' Hall, and tliat the defendant published the libel "of and concerning the plaintiff's said conduct;" and in the second count stated that deT fendant published a certain other libel "of and concerning the conduct of the plaintiff respecting the said dead body," it was held a variance upon both counts that the plaintiff did not prove that he had carried the body to Surgeons' Hall. Teesdale v. > 10 Eng. Com. Law Keps. 24. "> 10 Id. 36. Case for Defamation, 291 Clement, 1 Chitty, 603," and per Cur. ibid. " The fact which has failed in proof is very material to the libel itself; for the libel is with respect to the plaintiff's conduct to this dead body, and if the plaintiff is charged with carrying this body, amongst other places, to Surgeons' Hall, it certainly is most important to prove that part of the conduct." So in an action for words charging the plaintiff with having stolen some soap, where the declaration alleged that the words had been spoken of and concerning certain soap which B. had asserted to have hcen stolen out of his yard, and it appeared in evidence that B. had asserted that the soap had been taken out of his yard, Abbott, C. J., held the variance fatal. She/pherd v. Bliss, 2 Stark. 510.» Where the declaration stated that the plain- tiff was treasurer and collector of certain tolls, and that the defend- ant spoke of and concerning the plaintiff, as such treasurer and collector as aforesaid, certain words, " thereby meaning that the plaintiff, as such treasurer and collector had been guilty, &c. ;" and the plaintiff failed to prove that he was collector, it was held that the plaintiff was bound to prove that he was both treasurer and collector; Sellers v. Till, 4 B. and C. 656,i' and per Cur. " it appears that there is an inuendo expressly applying the words to the plaintiff in his character of collector, which makes the case very distinguishable from those which have been cited, {May v. Brown, Lewis v. Walter, supra,) for in them the meaning of the words was not limited by the insertion of such an inuendo." Where the words are alleged to have been spoken of and con- cerning the plaintiff in a particular character, and are only action- able as having been spoken of the plaintiff in that character, such character must be proved ; but where the words themselves admit the plaintiff's character, any further evidence of it is unnecessary. See ante, p. 27; and Yrisarri v. Clement, 3 Bingh. 432.'» The first count of a declaration stated that the plaintiii had been a wool- stapler at C. and a brewer at O., and that the defendant spoke of him as such trader as aforesaid the following words : " Mr. H. (the plaintiff) and Mr. B. have both been bankrupts; Mr. H. at C, &c." The second count alleged the words to have been spoken of and concerning the plaintilF iii his former trade of a woolstapler ; and the the third of and concerning the plaintiff in his trade of a breiver. There was no evidence of the plaintiff having been a woolstapler, but it was proved that he had been a brewer at Ox- ford. It was objected that the proof did not support the allega- tion, that the words were spoken of the plaintilF in his trade of a brewer at O. ; the Court of K. B. held it no variance, and Per Ld. Ellenborough, the place where the bankrupt is stated to have be- come bankrupt is immaterial ; he might have become bankrupt whilst a brewer at O., by an act of bankruptcy committed at C. ; • 18 Eng. Com. Law Reps. 17f5. •• Id. 4'")3. p 10 Id. 454- 1 13 Id. 36. •292 Case for Defamation. the substance of the words is this ; he was a bankrupt at C, and so he might be w'hilst carrying on the trade of a brewer at O. Hall V. Smith, 1 M. mid S. 287. So where the declaration alleged that the plaintiir, at the time of the speaking of the words, was a carpenter and sworn appraiser; and that the tlefendant, intending to injure him in his several trades asaforesaid,and to prevent persons from employ- ing him in his several trades as aforesaid, in a certain discourse of and concerning the plaintillin his trade of carpenter, spoke the words; and there was no proof that the plaintill" carried on the trade of a sworn appraiser, it was held no variance. Figgins v. Cogswell, 3 JM. and S. 309. .See also Rutherford v. Ecans, 6 Bingh. 451. ■• To prove that the plaintilF is a physician, it is not sufficient to produce a diploma of Doctor of Physic, under the seal of one of the Universities, without proving the seal. Moises v. Thornton, 8 T. R. 303. To make such an instrument evidence, it should be either the original act of the corporation conferring the degree, or an examined copy of it ; as an original act, it should be proved that the seal allixed to it is the seal of the University ; if considered as a copv, it should be compared with the original book by the witness who produced it. Per Grose, J., ihid., see ante, p. 44; and as to proof of being an apothecary, ante, p. 201. The books of an Uni- versity conferring the degree of Doctor of Laws, are evidence to prove that fact. 8 T. R. 30G. In order to prove that the plaintiff is an attorney, an examined copy of the roll of attornies, signed by the plaintiff, is sufficient. So the book from the master's office containing the names of all tl'.e attornies, produced by the officer in whose custody it is kept, is good evidence, together with proof that the plaintiff practised as an attorney at the time of the words spoken. R. v. Crossley, 2 Esp. 526. Lev-is v. Walter, 3 B. and C. 138.' Jo7ies v. Stevens, 11 Price, 251. Where the title to the particular situation is not the subject of any express documentary appointment, the acting in the situation is of course the only evidence which the fact admits of. 2 Stark. Ev. SCO. In an action by an innkeeper for words spoken of him in trade, proof that upon one occasion, he sold spirits to be consumed out of his house is sufficient. Whittington v. Gladwin, 2 C. and P. 146.' Where the plaintiff averred that he was employ- ed by " the New England Company," and that the libel was pub- lished of him in such employment, it was held sufficient to prove that the Company was commonly so called, though that was not its legal name. Ridherford v. Evans, 6 Bingh. 451. ■■ The allegation that the words were spoken in the presence and hearing of A. B., and others, is supported by proof that they were spoken in the presence of others only. JS. JV. P. 6. '19 Eng. Coin. Law Reps. 128. • 10 Id. 36. '12 1(1.64. Case for Defamation. 293 Proof of inuendo.'] The plaintiff must in general prove the inuendos as laid. Thus where the words, in fact, imputed either a fraud or a felony, but by the inuendo were confined to the latter, •Lord EUenborough ruled that the plaintiff must prove that they were spoken in the latter sense. Smith t. Carey, 3 Campb. 461. So if the plaintiff in stating a libel, connects it by inuendo with a particular allegation, he will be bound to prove a libel relating to the matter contained in that allegation. Per Bayley, J., May v. Broivn, 3 B. and C. 128;" and see Sellers v. Till, 4 B.and C. 656.'' But where the inuendo'does not refer to any^precedent averment, but improperly introduces new matter not necessary to sustain the action, it need not be proved, but may be rejected as surplusage, Roberts v. Camden, 9 East, 93. Proof of malice.'] Where the publication is defamatory, the law infers malice unless something can be drawn from the circum- stances attending the publication to rebut that inference. Per Le Blanc, J., R. V. Creevy, 1 M. and S. 282. In such cases, there- fore, it is unnecessary for the plaintiff to adduce any evidence of malice. But in actions for such slander as is prima facie excusa- ble, on account of the cause of speaking or writing it, as in the case of servants' characters, or confidential advice, or communica- tions to persons who ask it, or have a right to expect it, malice in fact must be proved. Per Bayley, J., Bromage v. Prosser, 4 B. and C. 256." In order to maintain an action against a master for giving a false character of a servant, extraordinary circumstances of express malice must be proved. Per Ld. Mansfield, C. J., Har- grave v. Le Breton, 4 Burr. 2425. To prove such express malice, evidence that the character given was false, is admissible. Rogers V. Clifton, 3 B. and P. 587. Ki7ig v. fVaring, 5 Esp. 13. Patte- son V. Jones, 8 B. and C. 578.^ Evidence of other words or libels.'] In an action for libel or for vpords, evidence of other libels or words is sometimes given, to show the animus of the defendant : thus it may be proved that the de- fendant spoke the same words at different times; Charlton v. Bar- rett, Peake, 22 ; so words spoken after those for which the action is brought, and whether actionable or not, are admissible to show quo animo the words which are the subject of the action were spoken. Rustell v. Macquister, 1 Campb. 49 (n). Tate v. Hum- phrey, 2 Campb. 73 (??). J^ee v. Huson, Peake, 166. Macleod V. Wakley, 3 C. and P. 312 ;y but see Meade v. Daubigny, Peake, 124. So in an action for a libel published in a weekly paper, evi- dence was admitted that other papers of the same title had been since purchased at the defendant's shop, to show that the papers which purported to be weekly publications of public transactions were sold deliberately, and vended in the regular course of public » 10 Eng. Com. Law Reps. 30. ' 10 Id. 434. ' 10 Id. 322. * 15 Id. 303. n4 Id. 322. 294 Case for Defamation. circulation : but Lord Ellcnborough added, that he should direct tlic jury not to take it into consideration in damages. Phmhett v. Cob!'ctt, 5 Esj). 136. Evidence of other libels is not adnnissible, unless they directly refer to the libel set out in the declaration;* Finnerty v. Tipper, 2 Camph. TZ ; and where the libellous inten- tion of the defendant was not equivocal, Lord Ellcnborough reject- ed evidence of subsequent publications, which were oUercd to show the animus of the defciidant. Stuart v. Lovell, 2 Stark. 95." Where other words than those laid in the declaration are thus given in evidence, the defendant may prove sucn words to be true, because he had no opportunity of justifying them. Warm v. Chad- loelU 2 Starh. 457." Evidence of plaintiff ^s good character.'] The plaintiff will not be allowed to go into general evidence of his good character, either where the general issue alone is pleaded, or where there are pleas of justification on the record. Stuart v. Lovell, 2 Stark. 93." Corn- icall V. Richardson, R. and M. 305. Proof of damage.l Where the words are actionable in them- selves, it is not necessary, in order to sustain the action, to give any evidence of damage ; Tripp v. Thomas, 3 B. and C. 427 ;" but where special damage is the gist of the action, it must be proved as laid, or the plaintiff will be nonsuited. B. JV. P. 6. In such cases the defendant will not be allowed, under a general allegation of damage, to give in evidence particular instances of damage; i>. jY. p. 7, 1 Sound. 243, d {?i) ; but where the declaration in an action for slander imputing incontinence to the plaintiif, stated that he was preacher to a dissenting congregation in a certain chapel, and derived considerable profit from his preaching ; and by reason of the slander, " the said persons frequenting his chapel jiad re- fused to permit him to preach there, and had discontinued giving him the gains which they usually had, and otherwise would have given," it was held sufficient, without saying who those persons were. Hartley v. Herring, 8 T. R. 130. Where the declaration stated that in consequence of the libel, the plaintiff lost the profits of certain performances at the theatre, it was held that the box- keeper might be asked " whether the receipts of the house had not diminished," but not "whether particular persons had not in con- sequence given up their boxes." Ashley v. Harrison, 1 Esp. 48. The persons particularised in the declaration, as having left off dealing, &.c. with the plaintiff, are the proper witnesses to prove that fact, 1 Saund. 243 d (n), which cannot be proved from their declarations. Tilk v. Parsons, 2 C. and P. 201,'" I Esp. 50. The special damage must be the legal and natural consequence of the words spoken, and not the mere wrongful act of a third per- son ; Vicars v. Wilcocks, 8 East, 1 ; and it must not be too remote : thus where the defendant libelled a public performer, ia consequence » 3 Eng. Com. Law Rep?. 561. » 3 Id. 430. >> 10 Id. 139. •!« Id. 89. Case for Defamation. 295 of which she refused to sing, and the party who had engaged her to sing, brought an action on the case, Lord Kenyon was of opinion that the injury was too remote, and impossible to be con- nected with the cause accigned for it. Ashley v. Harrison, 1 Esp. 48. The loss of the substantial benefit arising from the hospitality of friends is sutficient damage. Moore v. Meagher, 1 Taunt. 39. Defence. Evidence to disprove the malice.'] Where the words are prima facie actionable, on which the law infers malice, but there are, in fact, circumslances attending the publication which rebut the in- ference of law, evidence of such circumstances will constitute a good defence under the general issue ; Fairinan v. Ives, 5 B. and A. 644,'' Pattison v. Jones, 8 B. and C. 578 ;" as where the words are spoken, — 1. By a Member of Parliament in his place ; but the privilege does not extend to a subsequent publication of them. R. v. Creevey, 1 M. and S. 273. 2. Where the words are spoken in the course of a legal proceed; ing, either by the party; Ram v. Langley, Hutt. 113. Heston v. Dobneit, Cro. Jac. 432, Astley v. Young, 2 Burr. 807, Johnson v. Evans, 3 Esp. 32; by a witness, Brodie's case, cited Palmer, 144, Harding v. Bulman, 1 Broicnl. 2 ; by counsel, Brooke v. Montague, Cro. Jac. 90, Hodgson v. Scarlett, 1 B. and A. 232 ; or by a judge, R. V. Skinner, Lofft, 55, Jekyll v. Sir J. Moore, 2 Bos. and Pid. JV. R. 341. So words spoken bond fide, for the purpose of obtaining redress, or of forwarding the ends of justice, though not spoken in the course of a legal proceeding. Lake v. King, 1 Smcnd. 131. R V. Baillie, Bac. Ab. Libel, A. 2. R. c. Baillie, 2 Esp. Dig.J\. P. 10, 2d ed. 21 Hoiv. St. Tr. 10, S. C. Fairman v. Ives, 5 B. and A. 642.' Where parties thus privileged exceed the limits of their privilege, and use defamatory expressions which the circumstances will not justify, it seems doubtful whether they ought to be sued in a common action for slander, or in a special action on the case, stat- ing that the matter was spoken maliciously, and without reason- able or probable cause. See Flint v. Pike, 4 B. and C. 481, s 1 B. and A. 245 {?i). Fairman v. Ives, 5 B. and A. 645.*^ 3. Where the words are spoken in confidence, by way of advice. Thus, where a party is applied to for the character of a servant, and in giving that character makes use of defamatory words, it is not actionable. Edmondson v. Stephenson, B. JV. P. 8. Weather- stone V. Hawkins, 1 T. R. 110. But if the supposed libel be not communicated bond fide, it does not fall within the protection which the law extends to privileged communications. Per Bayley, J., Patteson v. Jones, 8 B. and C. 584." Whether the master made the communication voluntarily or not, is a circumstance which the * 7 Eng. Com. Law Reps. 220. • 13 Id. 303. ' 7 Id. 14. 220. « 10 Id. 580. " 13 Id. 305. 29G Case for Defamation. jury are to consider in forming an opinion on the bona fides. " I do not mean to intimate," says Lord Alvanley, Rogers v. Clifton, 3 B. iDuf P. 5i)2, " that it' a servant were strongly suspected of having committed a felony while in his master's service, that master is not at liberty to warn others from taking him into their service; for it is the duty of every person to guard the public against admitting such servants into their houses." " A master may," says Mr. Jus- tice Bayley, Piitteson v. Jones, 8 B. and C. 578,' " when he thinks that another is about to take into his service one whom he knows ought not to be taken, set himself in motion, and do some act to in- duce that other to seek information from, and put questions to him. The answers to such questions, given bond fide, with the intention of communicating such facts as the other party ought to know, will, although they contain slanderous matter, come within the scope of a privileged communication. But in such a case it will be a ques- tion for the jury whether the defendant has acted bona fide, intend- ing honestly to discharge a duty, or whether he has acted malici- ously, intending to do an injury to the servant." See Child v. Affleck, 9 B. and C. 403." So defamatory words spoken by way of confidential advice to persons who ask it, or have a right to ex- pect it, are privileged. Thus, in an action for saying of a trades- man, " He cannot stand it long, — he 7vill be a ba7ikrupt soon" it ap- pearing that the words were not spoken maliciously, but in confi- dence and friendship, and by way of warning, Pratt, C. J., directed the jury that though the words were otherwise actionable, yet, if they should be of opinion that they were not spoken out of malice, but in the manner before mentioned, they ought to find the defend- ant not guilty. Herver v. Dawson, B. J\] P. 8. M'Dougal v, Cla- ridge, 1 Campb. 267. Dunmore v. Bigg, Id. 269 (n). Upon the same principle, where the plaintififbrought an action against the de- fendant for saying he had heard the plaintiff was hanged for steal- ing a horse, but it appeared upon the evidence that the words were spoken in grief and sorrow for the news, the plaintiff was nonsuited, there being no proof of malice. Anon., coram Hobart, J., cited 1 Lev. 82. But it seems to be no defence to show that the words were spoken carelessly, wantonly, or in jest. Hawk. P. C. b. 1, c. 28, s. 14, 8th ed. So words spoken bond fide, by way of moral advice, are privileged ; as if a man write to a father, advising him to have better regard to his children, and using scandalous words, it is only reformatory, and shall not be intended to be a libel. 2 Broionl. 150. But if in such case the publication should be in a newspaper, though the pretence should be reformation, it would be libellious. R. v. Knight, Bac. Ab. Libel, A. 2. In these cases, if the circumstances attending the writing or speaking of the words be such as prima i 15 Eng. Com. Law Reps. 805. * 17 Id. 405. Case for Defamation. 297 facie to render them privileged, it is incumbent on the plaintiff, in order to entitle himself to a verdict, to prove malice in fact. See Bromage v. Prosser, 4 B. and C. 247,' 4. Where defamatory words are spoken or written bond fide with the view of investigating a fact in which the party is inter- ested, they are privileged. Thus, where the defendant inserted an advertisement in a newspaper to ascertain wliether, previously to a certain time, the plaintiff had been married, intending, as the in- uendo stated, to insinuate that the plaintiiFhad been guilty of biga- my, but it appeared that the advertisement v/as inserted by the authority of the plaintiff's wife. Lord Ellenborough held, that if the investigationwas set on foot, and the advertisement {)ub!ished by the plaintiff's wife, from anxiety to know whether she was legally the wife of the plaintiff, though that is done through the medium of imputing bigamy to the plainli'J, it is justifiable. Delamj v. Jones, 4 Esp. 191. Finden v. JVestlake, 1 M and M. 401. But if the pub- lication of the libel be more extensive than is necessary for the pur- pose of obtaining the desired information, it will be actionable. Brown V. Croome, 2 Stai-k. 297."" 5. Whether the publication of the proceedings of a court of jus* tice, where those proceedings contain defamatory matter, is privi-« leged, has never been solemnly decided ; but the inclination of the courts appears to be against the existence of such a privilege. See Lewis v. CIe?nent, 3 B. and A. 702." Lewis v. JVaItcr,4 B. and A. 613." Flint v. Pike, 4 B. and C. 476." 481 ; but see Curry v. Walter, 1 Esp. 456, 1 B. and P. 525, S. C. R. v. Wright, 8 T. R. 298. Stiles V. JVokes, 7 East, 504. R. v. Fisher, 2 Campb. 270. Dim- can V. Thi/Mites,3 B. and C. 583.^ The publication of preliminary or ex parte proceedings containing defamatory matter is clearly actionable; as the publication of depositions before a justice of the peace on a charge of murder ; R. v. Lee, 5 Esp. 123, R. v. Fisher, 2 Campb. 5Q3, Duncan v. Thwaites,3 B. and C 583;i or proceed- ings on a coroner's inquisition. R. v. Flint, 1 B.andA. 379. Where the defence has been, that the libel is a correct account of what passed in a court of justice, it has been usual to plead that defence specially ; but it seems that, if available at all, it may be taken advantage of under the general issue, like other privileged commu- nications. Though the defendant cannot plead in justification that the libel is a correct report of a preliminary or ex parte proceed- ing, as a coroner's inquest, yet he may, under the general issue, give in evidence the correctness of the report in mitigation of damages; but no evidence of the truth or fjilsehood of the facts stated at^'the inquest is in such case admissible on either side. East v. Chapman, 1 M. and M. 46. Vide post. 6. So the defendant may show under the general issue that the libel is a fair criticism on the plaintiff's work ; but if it contain ' 10 Eng. Com. Law Reps. 321. •> 3 Id. 353. • 5 Id. 427. • Id. 535. » 10 Id. 380. "» 10 Id. 179. 38 298 Case for Defamation. observations unconnected witlj the work, and personally slander- ous, it is actionable ; Carr v. Hood, 1 Campb. 355 (n). Macleod v. Wahleij, 3 C. and P. 311,' Sonne v. Knight, 1 M. andJ\1. 74, T/ioinp- son V. ShacJde, 1 jM. and M. 187. That publication is not a libel which has for its object not to injure the reputation of any indivi- dual, but to correct misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste in literature, or to censure what is hostile to morality. Per Lord Ellenboro^igh, Tabart v. Tipper, 1 Campb. 352. So the editor of a newspaper may fairly and candidly comment on any place of public entertainment, but it must be done fairly and without malice, or view to injure or pre- judice the proprietor in the eyes of the pul)lic. Per Lord Kenyon, Dibdin v. Sivan, 1 Esp. 28. And it is not libellous fairly to com- ment upon a petition relating to matters of general interest, which has been presented to parliament and published. Dunne v. Ander- son, R. and JSl 287, 3 Bingk. 88.« Evidence of the truth of the libel or words.'] Where the defend- ant admits the publishing or speaking of the libel or words as sta- ted, but justilies so doing because they are true, he must plead this matter specially, and he will not be permitted to give it in evi- dence under the general issue. Smith v. Richardson, Willes, 20, 1 Saund. 130 {n). And such evidence is inadmissible under the general issue, either in bar of the action or in mitigation of dama- ges. Ibid. Underu-ood v. Parhs, 2 Str. 1200. Evidence that the rvords icere first spoken by another.] It is a good defence that the defendant was only the repeater of the slan- derous words, and that he named the author of them at the time, and stated that he had heard them uttered, but such defence must be specially pleaded. jMills v. Spencer, Holt, 533.* The words actually uttered by the third person, and not merely the substance of them, must be proved, so as to furnish the plaintiflfwith a cause of action against such third person. Maithind v. Goulclney, 2 East, 420. See also M'Gregor v. Thicaites, 3 B. and C. 24." Levns v. Walter, 4 B. and A. 605. "" It must also be shown that the defend- ant believed the words to be true, and that he spoke them on a justifiable occasion. J\PPherso7i v. Daniels, 10 B.and C. 263. Evidence in mitigation of damages.] It was formerly held that where the defendant pleaded the general issue without a justifica- tion, he might prove that the plaintifThad \iGen generally suspected of the offence imputed to him by the defendant. Earl of Leicester V. Walter, 2 Campb. 251. v. Moor, 1 M. and S. 284. But it was held that evidence o( facts, not amounting to complete justifica- tion, could not be received. Wailham v. Weaver, D. and R. JV. ' U Eng. Com. Law Reps. 322. • 11 Id. 43. ' 3 Id. 177. « 10 Id. 6. » 6 Id. 536. Case for Defamation. 299 P. C. \Q.^ And it is now decided that general evidence of the plaintiff's bad character is not admissible in an action for a libel. Thus in an action for a libel on the plaintiff, tending to injure his credit and reputation, in his profession and business of an attorney, it was held that general evidence of his bad character and ill re- pute in his business could not be admitted either to contradict the allegation in the declaration that the plaintiff exercised and carried on the business of an attorney with great credit and reputation, in order to mitigate the damages on the general issue, or in support of the averments in the defendant's justification, that the plaintiff was a disreputable professor and practitioner in the law. Jo7ies v. Ste- vens, 1 1 Price, 235. The defendant cannot, in mitigation of dama- ges, give in evidence other libels published of him by the plaintiff, not distinctly relating to the same subject. Mai/ v. Broivn, 3 B. and C. 113.^ See Finnerty v. Tipper, 2 Campb. 77. Nor is general evi- dence that the plaintiff has been in the habit of libelling the de- fendant admissible. WaMey v. Johnson, R. and M. 422. But mat- ter which cannot be pleaded in justification, as for instance, that certain proceedings took place at a coroner's inquest, may be given in evidence in mitigation of damages. East v. Chapman, 1 M. and M. 46, 2 C. a7id P. 57 1,^ S. C. Ante, p. 297. And in actions for words not actionable in themselves, evidence of their truth may be given under the general issue to disprove malice. Watson v. Rey- nolds, 1 M. and M. 1. So also, as before stated, ante, p. 295, in cases of privileged communications, evidence of the circumstances which render the communications privileged, is admissible under the general issue. And where the defendant published an imper- fect account of a trial, which was libellous, he was allowed, in mitigation under the general issue, to show that he had copied the statement from another newspaper, but not that it had appeared concurrently in several newspapers. Saunders v. Mills, 6 Bingh. 213.* Accord and satisfaction.] Accord and satisfaction is a good de- fence under the general issue; and where the plaintiff had agreed not to bring the action in consideration of the defendant destroying certain documents relating to the charge imputed to the plaintiff, which the defendant accordingly destroyed. Lord Ellenborough ad- mitted this in evidence as accord and satisfaction. Lane v. Apple- gate, 1 Stark. 97." In an action for a libel, the defendant has a right to have the whole of the publication read from which the passages charged are extracts. Cooke v. Hughes, R. and M. 112. See Mullett v. Hulton, 4 Esp. 249. * 16 Eng. Com. Law Reps. 412. » 10 Id. 24. y 12 Id. 268. ' 19 Id. 60. »2ld. 312. 300 Case for Malicious Prosecution. CASE FOR MALICIOUS PROSECUTION. In an action on the case for malicious prosecution the plaintiff must prove: 1. The prosecution; 2. Its determination; 3. That" the (lefentlant was the prosecutor ; 4. His malice and want of probable cause ; and, 5, The damages sustained. Evidence of prosecution.'] The fact of the prosecution is usual- ly proved by the production of the record, or of an examined copy. ISee ante, p. 53. i>. JV. P. 13. And the record or copy is admissi- ble without proof of an order of the court or fiat of the attorney- general allowing the plaintilFa copy of such record. Lcgatt v. Tol- ler ccy, 14 East, 302. Caddy v. Barlow, 1 M and /?. 275. In an action for a malicious prosecution by indicting the plaintiff at the quaster-sessions, it was held by Wilmot, J., that it was not sufficient to produce the oi-iginal indictment, for that it was no evidence of the caption, which was a material averment in the declaration, viz. that the quarter-sessions were held at such a time and place, and before such parties, and he was of opinion that this could not be supported by parol evidence of the minutes of the sessions, but that for this purpose a record should have been made up, and the original or a copy produced, and the plaintitf was nonsuited. Ed- wards V. Williams, 2 Esp. Dig. JNI P. 37. Some proof must be given of the identity of the plaintiff and the party prosecuted. A variance between the charge actually made, and that stated in the declaration, will be fatal. Thus where it was stated in the declaration that the defendant imposed upon the plaintiff the crime of felony, and upon the production of the information before the justice, it appeared that the charge amounted only to a civil inju- ry, though the warrant was to arrest the plaintiff on suspicion of felony, the variance Vvas held fatal. Leigh v. fVebb, 3 Esp. 165. But where the declaration averred that the defendant charged the plaintiil" with assaulting and beating him, and procured a warrant to apprehend him for his said offence, and the charge in fact made was for assaulting and sii^iking, and the warrant pro- duced recited the charge to be for violently assaulting, it was held to be no variance. Bijne v. Moore, 5 Taunt. 187," quaere the mar- ginal note. And vi-here the plaintiff declared that the defendant maliciously charged the plaintiff with having feloniously stolen certain articles his properly, and it was proved that the defendant laid an information before a magistrate, in wbich he deposed that the said articles had been feloniously stolen, and that he suspected and believed, and had good reason to suspect and believe, that they had been stolen by the plaintiff, it was held that the 'i 1 Eng. Coin. Law Reps. 69. Case for Malicious Prosecution. 301 evidence supported the declaration. Davis v. JK'hake, 6 M. and S. 29, 1 Stark. 377,= S. C. diss. Baijhij, J. Where the plaintiff de- clares that the defendant maliciously and without probable cause preferred an indictment (setting it forth), the averment is proved if some charges in the indictment were maliciously and without probable cause preferred, though Ihere was good ground for pre- ferring others of the charges. Read v. Taylor, 4 Tau7it. 616. As to other variances in proof of the record, see ante, jj. 48. If the proceeding was by preferring a charge before a magistrate, the magistrate or his clerk should be served with a suhpcena duces tecum, to produce the proceedings. If the information was laid by the defendant, his taking the oath and handwriting should be proved, as also the issuing the w^arrant to the constable, &c. The warrant must also be produced and proved, and evidence must be given of the apprehension and detention of the plaintiff imder the warrant, and of his ultimate discharge. 2 Stark. Evid. 910 ; and see Freeman v. Arkell, 2 B. and C. 494,'' ante, p. 11. Where the action is for maliciously procuring the plaintiff to be arrested upon a warrant on a charge of felony, and it does not appear that any information has been taken, evidence may be given of the warrant without proving the information. Kewsam v. Carr, 2 Stark. 69.* Evidence of determination of 'prosecution.'] It must appear that the prosecution is determined. B. JV. P. 13. The return of not a true bill by the grand jury, or the verdict of acquittal, will be evi- dence of this fact ; and an averment that the plaintiff, " by a jury of the said county, &c. was duly and in a lawful manner acquit- ted," is proved by a record, by which it appears that the jury found the plaintiff not guilty, and that upon that judgment was entered that he should " go thereof acquitted." Hunter v. French, Willes, 517. Where the declaration averred that the defendants " did not prosecute the suit complained of, but therein made de- fault, and their pledges were in mercy, &.c." it was held, that the production of a rule to discontinue did not prove the averment, and Lord Tenterden refused to allow an amendment under the stat. 9 Geo. IV. c. 15. Webb v. Hill, 1 J\}. and M. 253; aiid see ante, p. 42. An action lies though the plaintiff was acquitted on a defect in the indictment. Wicks v. Fentham, 4 T. R. 247. Peppet v. Hearn, 5 B. and A. 634.' As to variance, see Purcell v. Macnamara, 9 East, 157, stated ante, p. 48. Evidence that defendant icas prosecutor.'] The proper evidence to establish this fact is that the defendant employed an attorney or agent to conduct the prosecution : that Ijc gave instructions con- cerning it ; paid the expenses ; procured the attendance of wit- •2 Eng. Com. Law Reps. 434. ^ 9 jj. 159, . 3 Id. 249. f 7 Id. 217, 303 Case for Malicious Prosecution. nesses ; or was otherwise active in forwarding the prosecution. 2 Stark. Evid. 908. So the information taken by the magistrate, or the warrant issued by him, may be suflicient for this purpose. 2 Phil/. Ev. IGl. The indorsement of the defendant's name on the bill is evidence that he was sworn as a witness, though not of his being the prosecutor. B. N. P. 14. One of the grand jury before whom the bill was preferred may be called to prove that the de- fendant was the prosecutor. Sykes v. Duiihar^ Sekv. JV. P. 1004. Evidence of malice^ It is essentialthat the plaintiff should give some evidence of the defendant's malice. Proof of an acquittal for want of prosecution is not even prima facie evidence of malice to support the action. Purcell v. Macnamara, 9 East, 3G1. But if the plaintiff prove want of probable cause, malice may be in- ferred from thence. Ibid. Burley v. Bethune, 5 Taunt. 583.' Turner V. Turner, Gow, 20.'' Proof that the defendant published an ad- vertisement of the finding of the indictment with other scandalous matter, is evidence of malice. Chambers v. Robinson, 1 St. 691. Where a forged note was taken in the ordinary course of business, and a bank inspector in the absence of any circumstances of sus- picion charged the taker as having the note in his possession, know- ing it to be stolen, Lord EUenborough held that this was such a crassa ignorantia that it amounted to malice. Brooks v. Warwick, 2 Stark. 389.' In an action by A. for the malicious prosecution by C. of an indictment against A. and B., evidence of the misconduct of C. towards B. after his apprehension, tending to show the bad motives of C, is admissible in proof of malice. Caddy v. Barlow, 1 M. and R. 275. To support the averment of malice it must be shown that the charge is wilfully false. Per Abbott, C. J., Cohen V. Morgan, 6 D. and R. 9." Evidence of leant of probable cause.'] The plaintiff must give some evidence of want of probable cause. Incledon v. Berry, 1 Campb. 203 (n). But proof of express malice is not evidence of it. Johnson v. Sutton, 1 T. R. 545, Turner v. Turner, Gow, 20." Abandoning the prosecution is not sufficient evidence of want of probable cause. Incledon v. Berry, 1 Campb. 203 (re). Nor neglect- ing to prefer an indictment after a charge laid. IVallis v. Alpine, Id. 204 (n). IVillans v. Tayh/r, G Bingh. 188.' So proof that the bill was thrown out by the grand jury is not evidence of the want of proba- ble cause. Byne v Moore, 5 Taunt. 187,"' But in Nicholson v. Cog- hill, 4 B. and C. 23," it is said by Holroyd, J., that in actions for malicious prosecutions it has been held that evidence of the bill having been thrown out by the grand jury is sufficient to warrant an inference of the absence of probable cause. Where the plain- tiff refused to give up a forged note which he had taken in the « 1 Eng. Com. Law Reps. 196. i> 5 Id. 444. ' S Id. 396. " 16 Id. 250. • 19 Id. 47. » 1 Id. 69. " 10 Id. 269. Case for Malicious Prosecution. 303 course of business, to the defendant, a bank inspector, and the de- fendant, in the absence of all circumstances of suspicion, charged the plainti If before a magistrate, with feloniously having the note in his possession, it was held to be evidence of want of probable cause to go to the jury. Brooks v. Warwick, 2 Stark. 289.° If the defen- dant laid all the facts of Ihe case fairly before counsel, and acted bond fide upon the opinion given by that counsel (however errone- ous it may be), it will be evidence to prove probable cause. Per Bayley, J., Ravenga v. Macintosh, 2 B. and C. 697.? And see Snow V. Allen, 1 Stark. 502.i But not unless a full statement of the case has been laid before counsel. Hewlett v. Crutchley, 5 Taunt. 281.'' It has been said that where the facts lie in the knowledge of the defendant himself, he must show a probable cause, though the in- dictment be found by the grand jury, or the plaintiff shall recover without proving express malice. Parrott v. Fishivick, B. JV. P. 14. And see 4 B. and C. 24,' 6 Bingh. 187, 189.* But this position is not supported by another report of the same case, 9 East, 362 (n), from which it appears that the plaintiff having been acquitted on the indictment. Lord Mansfield said, " that it was not necessary to prove express malice, for if it appeared there was no probable cause, that was sufficient to prove an implied malice, which was all that was necessary to support this action. For in this case all the facts lay in the defendant's own knowledge, and if there were the least foundation for the prosecution, it was in his power, and incumbent upon him to prove it." It seems from this report that some evidence of want of probable cause had been given, from which malice was inferred, and that the question was whether it was incumbent upon the plaintiff to go further. So in Sykes v. Dunbar, cited 9 East, 363, where the defendant was the only witness upon the indict- ment, Lord Kenyon ruled that the proof of malice lay upon the plaintiff. And in a late case it was said by Tindal, C. J., that the plaintiff must take the first step ; because it is not to be presumed that any one has acted illegally. There must, therefore, he some evidence of want of probable cause before the defendant can be called upon to justify his conduct. Willans v. Taylor, G Bingh. 187.* In that case the defendant presented two bills for perjury against the plaintiff, but did not himself appear before the grand jury, and the bills were ignored. He then presented a third bill, and on his own testimony it was found. This prosecution he kept suspended for three years, till the plaintiff taking the record down to trial, and the defendant declining to appear as a witness, although in court, and called on, the plaintiff was acquitted. It was held that this was sufficient prm«/acie evidence of want of probable cause. See further as to proof of want of probable cause. Cotton v. James, 1 Barn, and Adol. 128. • 3 Eng. Com. Law Reps. 396. 1 9 Id. 225. i 2 Id. -485. ' 1 Id. 107. •lOId. 2«9. «19Id. 47. 304 Case for Malicious Arrest. The observations of tlie judge on the trial of the indictment tend- ing to cast censure on the mode in which the prosecution had been conducted, are admissible for the plaintiff. Warne v. Terry, coram LUtledak, J., M S. Wuiton Sum. Ass. 1826. Da7nages.] The jury will give damages for the loss of reputa- tion, the imprisonment, if any have taken place, and the expenses incurred by the plaintiff in making his defence. B. JV. P. 13. Defence. The defendant may give in evidence facts to disprove the malice, or to show that he had probable cause for the prosecution. Thus he may show that the jury deliberated on the trial of the indict- ment. S/nith V. jMacdonald. 3 Esp. 1. Lord Kenyon ruled that the defendant might give evidence of the plaintiff's bad character; Roderguez v. 7 admire, 2 Esp. 721 ; but in a late case Wood, B., refused such evidence, on the ground that it afforded no proof of probable cause to justify the defendant. JVeicsam v. Carr, 2 Stark. 71." If no one was present at the time of the supposed felony commit- ted, but the defendant or his wife, his or her evidence on the trial of the indictment is, it is said, admissible for the defence to prove the felony committed. B. JV. P. 14, 15. CASE FOR MALICIOUS ARREST. In an action on the case for a malicious arrest, the plaintiff must prove the arrest, the determination of the suit, the defendant's ma- lice and want of probable cause, and the damage. The arrest.] If the form of the declaration require it, the plain- tiff should be prepared to prove the affidavit to hold to bail, by the production of the original, or of an examined copy, Crook v. Dow- ling, 3 Dougl. 75, B. JV. P. 14, S. C. Cashurn v. Reed, 2 B. JWoore, 60,'' see R. v. James, 1 Shoiv. 397, Rees v. Boicen, 1 M'Cl and Y. 392; but unless there be an allegation in the declaration that the writ was indorsed for bail '• by virtue of an affidavit, filed, &c." it seems to be unnecessary to prove the affidavit, Arundell v. White, 14 East, 224, unless for the purpose of connecting the defendant with the arrest. The writ indorsed was held by Mr. J. Buller to be sufficient evidence of the holding to bail. Rogers v. Ilscomhe, 2 Esp. Dig. JV. P. 38. The plaintiff must also prove the writ and return, ante, p. 56, and in one case, though the return of cepi corpus ap- peared on the writ. Lord Kenyon ruled, that as against the defend- ant there was no evidence of the arrest having been under the writ, and the plaintiff not being able to prove the warrant, was non- • 3 Eng. Com. Law Reps. 249. ' 4 Id. 405. Case for Malicious Arrest. 805 suited. Lloyd v. Harris, Peake, 174. But it seems that the sheriff's return is prima facie evidence of the fact therein stated. Gyfford V. Woodgate, 11 East, 297; and see 2 P/iill. Evid. 16G. In order to prove the arrest, the plaintiff may call the sheriff's officer. If a bailiff, who has a process against one, says to him when he is on horseback, or in a coach, " You are my prisoner, I have a writ against you," upon which he submits, turns back or goes with him, though the bailiff never touch him, yet this is an arrest, because he submitted to the process ; but if instead of going with the bailiff he had gone or fled from him, it could be no arrest, un- less the bailiff had laid hold of him. Per Cur. Hernerv. Battyn, B. JV. P. 61. Where a sheriff's officer having a warrent to arrest A. sent a message to him to fix a time to call and give bail, and A. ac- cordingly fixed a time, attended and gave bail, in an action for a malicious arrest, this was held to be no arrest. Bury v. Adamson, 6 B. and C. 528.'' Where the officer showed the party the writ, saying that as he knew him, he would take his word, but that he must give bail, and after receiving a fee from him, left him and went to his attorney to tell him what had occurred. Lord Tenterden said, that his strong opinion was, that this was no arrest. Goye v. Rad- ford, 3 C and P. 464,* and see more as to arrest, post, " Actions against Constables." Determination of the suit.'] It is necessary to show how the pro- ceeding complained of, whether civil or criminal, terminated, and the proof must correspond with the allegation. Therefore where it was averred that " the plaintiffs in that action did not prosecute their suit, but therein made default, whereupon it was considered that the said plaintiffs should take nothing by their bill, and the pledges to prosecute be in mercy, &.c." It was ruled that this be- ing an allegation of a nonsuit was not proved by a rule to discon- tinue, and that the variance could not be amended under stat. 9 Geo. IV. c. 15, Webb v. Hill, 1 M. and M. 253. Proof of a rule to discontinue, and that the costs have been accordingly taxed and paid, is sufficient evidence of the determination of the suit. Bristow V. Haywood, 4 Campb. 214, 1 Stark. 48,'' S. C. Gadd v. Bennett, 5 Price, 540, Brandt v. Peacock, 1 B. and C. 649 ;^ so a rule to stay proceedings, and deliver up to the then defendant the bill of ex- change upon which the action was brought. Brook v. Carpenter, 3 Bingh. 297 ;" but where the evidence of the determination of the suit was a judge's order to stay proceedings, and payment of costs accordingly. Lord Kenyon was inclined to think that it was insuffici- ent: a juror was afterwards withdrawn. Kirk v. French, 1 Esp. 80, and see 4 Campb. 214, sed qucBre, and see Austin v. Debnam, 3 B. and C. 140." In an actin for a false arrest upon a plaint in the * 13 Eng. Com. Law Reps. 245. » 14 Id. 391. y 3 Id. 389. «8ld. 172. »llld. 108. »« 10 Id. 37. 39 306 Case for Malicious Arrest. Sheriff's court of London, evidence was given that the usual course of that court, upon the abandonment of a suit by the plaintiff, was to make an entry in the minute-book of" withdrawn," and it was held that proof of such entry in the minute-book was sufficient to prove the determination of the suit. Arundell v. White, 14 East, 210. The termination of the suit must be such as to show p'ima facie evidence that the action was without foundation ; therefore, where it appeared that a slet pj-ocessus had been entered by con- sent, the plaintiff was non-suited. IVilkinson v.Howel, 1 M. and M. MSS. Evidence of malice, and want of probable cause.'\ It lies upon the plaintiff in this action, as in the action of case for a malicious pro- secution, ante, p. 240, to prove both malice, and the want of pro- bable cause. Proof that the suit was discontinued, was held by Lord Ellenborough not to be evidence of want of probable cause; Bristoic i\ Heyicood, 1 Stark. 50 ;" but in a later case, where the defendant had arrested the plaintiff on an affidavit of debt for money paid to his use, but did not declare, until ruled to do so, and soon afterwards discontinued the action, and paid the costs, this was held to be evidence to go to the jury of malice, and the want of probable cause. Nicholson v. Coghill, 4 B. and C. 21." Webb V. Hill 1 M. and M 254. That the defendant suffered himself to be non-prossed in the former suit has been held not to be evi- dence to support this action. Sinclair v. Eldred, 4 Taunt. 7. How- ever, in a previous case of Hamilton v. Reddell, coram, Pratt, C. J., 4 Jidy 17G5, Bearcroffs MSS. 22, not cited in Sinclair v. Eldred, it was ruled, that the defendant's suffering the former action to be non-prossed was sufficient prima facie evidence of malice. Per Pratt, C. J. " Here the defendant's never proceeding, and suffer- ing a non-pros, is, in my opinion, pynma facie evidence of malice. 1 hold most clearly that the affidavit, arrest, bail, and non-pros, make up sufficient prima facie evidence to call for a defence." Where there are mutuaj dealings between the plaintiff and defen- dant, and items known to be due on each side of the account, an arrest for the amount of one side of the account, without deducting what is due on the other, is malicious and without probable cause. Austin V. Debnam, 3 B. and C 129,'' overruling Brown v. Pigeon, 2 Campb. 594. Taking a less sum out of court, and not proceed- ing in the suit, is not enough to maintain this action, it appearing that the defendant had claimed a larger sum; Jackson v. Burleigh, 3 Esp. 34 ; and suing out a writ, and arresting a debtor after pay- ment of the debt by him to the creditor's agent, (the affidavit to hold to bail being made before such payment) does not afford evidence of malice. Gibson v. Chaters, 2 B. and P. 129. A. by mistake sued out a bailable writ against B., and gave it to an officer to be executed; • 2 Eng. Cora. Law Repi. 289. * 10 Id. 269. • 10 Id. 37. Case for Excessive Distress. 307 and the officer told B. that he had a writ against him ; but B. de- nying that he owed the money, the officer did not take him into actual custody. On inquiry, the mistake was discovered, and B. was told that he need give himself no further trouble in the matter. He afterwards, however, put in bail, and incurred an expense of 14/. Per Lord Elknborough, The action cannot be maintained, as no arrest or imprisonment has been proved; there is no evidence of malice, and the plaintiff has suffered no inconvenience except what he has voluntarily brought upon himself. Bieten v. Burndge, 3 Camph. 140. So where the plaintiff was arrested by the indor- see of a bill of exchange purporting to be drawn on and accepted by him, but in fact not accepted by him. Lord Tenterden ruled that this was not sufficient to support an action for a malicious arrest, the defendant having acted through mistake, and without malice. Spencer v. Jacob, 1 M. and M. 180. In an action for not accepting the debt and costs from a party in custody under a ca. sa., the refusal of the plaintiff in the former action *^to sign a discharge to the sheriff, on tender of the debt and costs, is prima facie evidence of malice. Crozer v. Pilling, 4: B. and C. 26.f In an action for a malicious arrest, the court of Common Pleas determined that the plaintiff was not entitled to recover more than the taxed costs which he had incurred ; Sinclair v. Eldred, 4 Taunt. 7 ; and see Rogers v. Jlscombe, 2 Esp. Dig. JV. P. 38. And in a late case. Best, C. J., ruled the same way. Webber v. Nicholas, 1 R. and M. 419. But Lord Ellenborough ruled that he might re- cover the amount of costs as between attorney and client. Sand- bach V. Thomas, 1 Stark. 306. ^ Competency qfioitness.] An arbitrator to whom the former cause had been referred, and who, on inspection of the then plaintiff's books, had awarded that he had no cause of action, was rejected by Lord Kenyon, when produced as a witness to prove the malice in this action ; upon the principle, that as the parties themselves could not have been examined in the former cause, and as the plaintiff could not have been compelled by a judge at Nisi Prius to produce his books, the arbitrator ought not to be permitted to give evidence derived from those sources. Habershon v. Troby, 3 Esp. 38 ; but see Gregory v. Howard, 3 Esp. 113. CASE FOR EXCESSIVE DISTRESS. In an action for an excessive distress the plaintiff must prove the tenancy as stated, that rent was due, that a distress was made, and that the distress taken was excessive. '10 Eng. Com. Law Repi. 271. i2 Id. 401. 308 Case for Excessive Distress, Foriyi of action — case or trespass.'] At common law no action lay for an excessive distress ; Lijnnc v. Moody, Fitzg. 85 ; but a remedy by action on the case was given by the statute of Marl- bridge, 52 II. III. c. 4, which enacts that "distresses shall be rea- sonable, and not too great." Trespass will not lie for taking an excessive distress, because the first entry is lawful ; Lynne v. Moo- dy, 2 Sir. 851, Fitzg. 85, S. C. ; Hutchins v. Chambers, 1 Burr. 590 ; though an exception to this rule was established in the case of Moir V. Miinday, cited 1 Burr. 590, where it was held that an action of trespass lay for taking six ounces of gold and one hundred ounces of silver as a distress for O.v. 8d. ; but it was said that in all other cases of goods, and other things of arbitrary and uncertain value, the action must be upon the statute. .See also Croicther v. Rams- bottom, 7 T. R. 058. Though the tenant before the distress has tendered the rent, which makes the taking unlawful, he may still waive the trespass, and sue in case for an excessive distress. Branscomb v. Bridges, 1 B. and C. 145," 2 D. and R. 205, 3 Stark. 171,' S. C. Evidence of the tenancy and rent due.] The allegation in the de- claration is general, that the plaintiff held and enjoyed certain premises, as tenant thereof to the defendant, which may be proved in the usual manner. It is not necessary to prove that the exact sum stated as rent due, was in arrear. Thus where the declaration alleged that a certain sum, to wit, 4.1. 3s. and no more, was in arrear, and it ap- peared in evidence that 82/. Ws. was due to the defendant, who had distrained for 95/., it was held that the plaintifT was entitled to recover. Sells v. Hoare, 8 B. Moore, 451, 1 Bingh. 401," S. C. If the situation of the premises is strictly described, it must be proved as laid ; thus, where they were stated to be in the parish of St. George the Martyr, Bloomsbury, and were proved to be in the parish oi St. George, Bloomsbury, the plaintiff was nonsuited. Har- ris V. Cooli, 2 B. Moore, 587.' Proof of the distress.] The plaintiff must prove that his goods were distrained ; but it is not necessary to show that they were sold or taken away, the seizure as a distress is sufficient. See Sells V. Hoare, 8J3. Moore, 453." Where the landlord's agent went upon the tenant's premises, walked round them, and gave a written notice that he liad distrained certain goods lying there for an arrear of rent, and that unless the rent was paid, or the goods replevied within five days, they would be appraised and sold, and then went away, not leaving any person in possession ; it was held that this was a sufficient seizure to give the tenant * 8 Eng. Com. Law Reps. 43. ' 14 Id. 176. ^8 Id. 359. '4 Id. 204. Case for Excessive Distress. 309 a right of action for an excessive distress, and that the quitting the premises without leaving any one in possession, was not an abandonment of the distress, since the statute 11 Geo. II, c. 19, s. 10, gives the landlord power to impound, or otherwise secure on the premises, goods distrained for rent arrear. Sicann v. Earl of Falmouth, 8 B. and C. 456.'" The fact of the distress may be proved by calling the broker, or other person who made the distress, and who will prove his author- ity from the defendant. If this evidence cannot be procured, the plaintiff should give a notice to produce the warrant of distress, and give secondary evidence of it, or should connect the act of the bail- iff with the defendant, by some other evidence. Proof of the excess in the distress^] Where a landlord is about to make a distress, he is not bound to calculate very nicely the value of the properly seized ; but he must take care that some proportion is kept between that and the sum for which he is enti- tled to take it. Per Bayley, J., Willoughhy v. Backhouse, 2 B. and C. 823." Where seven guineas were in arrear, and goods were taken, valued by the plaintiff's witness at 30/. but which, in fact, sold for only lOZ., it was contended that the plaintiffought to be non- suited ; but Lord Ellenborough left the case to the jury, and said, " There is a distinction between the cases where there is but one thing that can be distrained, and where there are many, and so the distress is divisible. If there is but one thing, that can be taken ; so that it must be taken, or the party must go without his distress, for taking it no action lies, though it much exceeds the sum for which the distress is taken. But if there are several articles of some value, and there is much more taken than is sufficient to sa- tisfy the rent and expenses, this action is maintainable, and express malice is not necessary to maintain the action, nor required to be proved ; but it is not for every trifling excess that this action is maintainable, it must be disproportionate to some extent, and if disproportionate to an excess the action is clearly maintainable." Field V. Mitchell, 6 Esp. 71. In order to establish the excess, the plaintiff must be prepared with proof of the value of the goods seized. Defence. The defendant may give evidence that the distress was not ex- cessive, or that the chattel distrained was entire, and that there was no other distress. Field v. Mitchell, 6 Esp. 71, supra. If the plaintiff has previously recovered in replevin for the same taking, such recovery is a bar in this action. Phillips v. Berryman, 3 Dougl. 286, S. C, cited Selw. JV. P. Distress ix. Where there has been an excessive distress, it is no defence that the plaintiff, after » 15 Eng. Com. Law Reps. 264. ■ 9 Id. 256. 310 Covenant. the distress, authorised the defendant to sell, and gave him other powers with regard to tlie goods seized. WiUou^hhy v. Backhouse^ 2 B. and C. 821, " 4 I), and R. 539, ,S. C. Sells v.^Hoare, 8 B. Moore, 451,'' 1 Bingh. 401,5. C. The defendant is not bound by his notice of distress, but may abandon it, and sbow that more rent was due than is there stated. . Gwinney v. Philips, 3 T. R. 645. Crowther V. Ramsbotlom, 7 T. R. 658. The broker who made the distress is an incompetent witness for the defendant. Field i\ Mitchell, 6 Esp. 73, ante, p. 82. COVENANT. There being no general issue in this action by which the whole declaration can be put in issue, the evidence depends on the nature of the issue joined in each particular case. Evidence on plea of assignment.'] In an action against the as- signee of a term on a covenant in the lease, he may plead that he assigned the term before breach ; and if the plea be traversed, he must prove the assignment as slated. When the defendant proved that he had executed the assignment, but that it had not been de- livered to the assignee, but remained in the hands of the solicitor of the defendant, who had a lien upon it, it was held sufficient. Odellv. Wake, 3 Camp. 394. The defendant need not prove notice of the assignment to the plaintiff; Pitcher v. Tovey, 1 Salk. 81, Taylor v. Shum, 1 B. and P. 21; nor the assent of the assignee to the assignment, for it is presumed. Ibid ; and see Townson v. Tick- ell, 2 B. and A. 38. Evidence on plea of Expulsion.'] In covenant for non-payment of rent, where the defendant pleads an expulsion, proof of a mere trespass will not maintain the plea. Hodgkin v. Queenborough, Willes, 131, B. JV. P. 177. Expulsion from part is a suspension of the whole rent. Co. Lit. 148. b. Walker's case, 3 Rep. 22, b, Gilb. on Rents, 148. Evidence on plea ofnon est factum.] Under the plea of non est factum, the plaintiff must produce, and prove the execution of the deed, vide supra. Where profert has been made, and non est fac- tum pleaded, the plaintiff at the trial will not be allowed to prove that the deed has been destroyed, and to give secondary evidence of its contents ; Smith v. JVoodward, 4 East, 585 ; and it is too late at nisi prius to move to put off the trial, in order to amend the de- claration by omitting the profert ; nor will the judge permit the amendment to be made at nisi prius ; Paine v. Bustin, 1 Stark. 74 ;' • 9 Eng. Com. Law Reps. 254. t 8 Id. 359. 16 Id. 196. • 2 Id. 307. 'IS Id. 105, Covenant. 315 into an adjoining house, amounts to a breach of a covenant to keep in repair. Doe v. Jackson, 2 Stark. 293.s On a covenant for quiet enjoyment generally, it will not support the breach to show a tortious disturbance by a stranger, for it is only a covenant against persons having lawful title ; Dudley v. Follett, 8 T. R. 587, 2 Saund. 178 (71); but where the covenant is against disturbance by a particular person, it is sufficient to show any disturbance by him, whether by lawful title or otherwise. JSfash V. Palmer, 5 M. and S. 374. So where the covenant is against disturbance by the lessor, his heirs or executors, it is sufficient to show any disturbance by him or them. Forte v. Vine, 2 Roll. Rep. 21, 2 Saund. 181, a. Where the covenant is for quiet enjoyment against A., and any other person by his means, title, or procurement, it is sufficient proof of the breach to show an entry by A.'s wife, in whose name A. purchased jointly with his own. Butler v. Swinerton, Palm. 339. So in case of a covenant for quiet enjoyment against all claiming by, from, or under him, a claim of dower by his wife is a breach of the covenant. Godh. 333, Palm. 340. So the appoin- tee of A. by virtue of a power, in the making of which A. concurred, is a person claiming under him. Hurd v. Fletcher, Dough 43. So where A. seised in fee settled his estate upon himself for life, remain- der to his first and other sons in tail, and made a lease, and covenant- ed for quiet enjoyment without interruption of theiessor, his heirs or assigns, or any other person claiming any estate, right, or interest, by, from, or under him or any of his ancestors, the eldest son was held to be a person claiming under the lessor. Evans v. Vaughan, 4 B. and C. 261." Where the covenant is that the defendant has not done, permitted or suffered any act, &c. the assenting to an act which the covenantor could not prevent is not a breach. Hohson V. Middleton, 6 B. and C. 295.* Where it is necessary to prove a lawful disturbance, the plaintiff must prove the judgment and exe- cution in ejectment, or must give other sufficient evidence of the claimant's title and disturbance ; merely forbidding the plaintiflPs tenant to pay his rent, is not a breach of the covenant for quiet en- joyment. Witchcot V. Linesey, 1 Brownl. 81. The plaintiff may assign a breach on the implied covenant contain- ed in the word demised; Com. Dig. Cov. {A 4) Shep. Touchst. 160; but that covenant ceases with the estate out of which the lease is granted. Adams v. Gebney, 6 Bingh. 656.'' If a tenant underlets by deed, and the superior landlord distrains, the under tenant must sue on this implied covenant, and cannot recover in assumpsit. Schlench- er V. Mozsy, 3 B. and C. 789.» « 3 Enjf. Com. Law Reps. 352 ^ 10 Id. 327. ' 13 Id. 175. k 19 Id. 194. ' 10 Id. 227. 316 Debt on Bond. DEBT ON BOND. In an aclion of debt on bond, the plaintiff, on non est factum pleaded, must prove the execution of the bond ; and where breach- es have been assigned under the stat. 8 and 9 Will. III. c. 11, s. 8, he must prove the breaches as assigned. The breaches must be proved as in an action of assumpsit or cov- enant ; but if the breaches have been suggested on the roll, after judgment for the plaintiff on demurrer, it will be necessary to give some evidence that the bond produced, and in which the conditions are contained, is the same as that on which judgment has been obtained ; for this purpose it will be sufiicient, if the attorney for the plaintiir swears that the bond produced is the instrument de- livered to him to bring the action, and that he knows of no other of the same date, without calling the attesting witness. Hodgldnson V. Marsden, Peahe Ev. 287, 5th ed., 2 Campb. 122, .S. C. So where the defendant craved oj/er, and set out the bond and condition which was for performance of covenants in an indenture of lease, and pleaded a shan^ plea, to which there was a replication, and then demurred ; after judgment for the plaintiff, on the execution of the writ of inquiry, Lord Kcnyon ruled that it was not necessary to prove the execution of the lease, as the defendant was estopped by his plea from saying that it was not duly executed. Collins v. Rybot, 2 Esp. 157. If the defendant lets judgment go by default, and the plaintiff thereupon makes his suggestion, in which he sets out the condition of the bond, and that appears to be for the per- formance of an award, or of articles of agreement or the like, the plaintiff must prove the condition of the bond, the award, inden- ture, or articles, as well as the breaches suggested. Edwards v. Stone, coram Lawrence, J., 1 Saund. C8, e (n). Defence. The defendant may plead non est faction , which will put the plaintiff upon proof of the execution of the deed, and under which the defendant may give most matters of defence in evidence, see ante, p. 64. Though the statute of limitations does not apply to specialties, yet the defendant may, if the deed be upwards of twenty years old. and there has been no payment or acknowledg- ment of his liability within that period, plead solvit ad diem, and rely upon the presumption of payment arising from lapse of time, ^ut if there has been any payment of interest ' or acknowledg- n^<-nt, after the day appointed for the payment of the money, though upwards of twenty years have elapsed since the payment or ackt^wledgment, the defendant cannot avail himselfof this pre- sumption •:,£ payment under the plea of solvit ad diem, though he may Debt for Rent. 317 under the plea of solvit post diem. Moreland v. Benet, 1 Str. 652, B. JV. P. 174. The issue of solvit ad diem lies upon the defendant, and under that plea he may show payment before the day. B. JV. P. 173. Proof of payment of the principal only, without interest, will not, as it seems, support the plea of solvit post diem; Hellier V.Franklin, 1 Stark. 291,"" hut see Dixon v. Parks, 1 Esp. 110, contra; as to the presumption of payment^ see ante, p. 15. DEBT ON BAIL BOND. In an action of debt on a bail bond, the plaintiff) whether he be the sheriff", or his assignee, will only have to prove under the plea oinon est factum, the execution of the bond in the usual manner. Hutchinson v. Kearns, 1 Selw. K. P. 557. The defendant may show under non est factum, that the bond was taken after the return"of the writ, Thompson v. Rock, 4 M. and S. 338. See Haryner v. Roice, 6 M. and S. 146 ; or that the bond was executed before the con- dition was filled up. Powel v. Duff, 3 Camph. 181. If the defend- ant pleads ease and favour, which is traversed, little evidence will be sufficient. Lenthall v. Cook, 1 Sid. 384. 1 Saund. 163 (n). Where issue is joined on the plea of cojnperuit ad diem, the trial is by the record, see Austen v. Fenton, 1 Taunt. 23, Tidd, 239, and the plea is proved by the production of the recognizance roll, containing an entry of the appearance. Whittle v. Oldaker, 7 B. and C. 478." Where the defendant pleads nil debet, and the plaintiff", instead of demurring, takes issue upon that plea, the defendant is let into any defence applicable to the plea of 7iil debet ; Rawlins v. Danvers, 5 Esp. 38: and in such case it is said that the plaintiff" must be pre- pared to prove, not only the execution of the bond, but also all the averments in the declaration which are put in issue by the plea of nil debet, 2 Stark. Ev. 140, 5 Esp. 39. Where the defendant plead- ed that there was not any assignment of the bond by the sheriff" or under-sheriff", and i( appeared in evidence that the bond had been assigned to the plaintiff by one of the under-sheriff's clerks, Lord Mansfield was of opinion that the seal to the assignment, being the seal of office, was sufficient to prove its validity, whoever had sign- ed it. Harris v. Ashley, 1 Selw. JV. P. 554. DEBT FOR RENT. In an action of debt for rent, the plaintiff under the plea of nil debet must prove the demise, and the amount of rent in arrear. The demise may be proved by production and proof of the lease executed by the defendant, but if the plaintiff sues as assignee of "> 2 Eng. Com. Law Reps. 394. " 14 Id. 88. 318 Debt for Rent. the reversion, and the defendant has not paid rent to hinn, he must also prove his title as such assignee by production and proof of the mesne assignments, or by showing that he is heir, 6lc. See Sands V. Ledger, 2 Ld. Rinjm. 792. The assignee of the reversion may maintain debt against the lessee without giving him any notice of the assignment, for the action is sufficient notice; but if the rent has been paid to tlie original lessor before notice, it is a good de- fence. Watts V. Ogncll, Cro. Jac. 192. Birth v. Wright, 1 T. R. 385. A variance between the demise stated, and that proved, will be fatal, but where it was alleged that the plaintiff had demised to the defendant three rooms, and it appeared in evidence that the demise was of three rooms, and the use of the furniture, it was held to be rightly stated accordingly to the legal effect, for the rent could not issue out of the chattels. Walsh v. Pemherion, Selw. JV. P. 583, Farewell h\ Dichcnson, 6 B. and C. 251," Ward v. Smith, 11 Price, 19. A variance in the statement of the rent will be fatal, as where in the declaration it was stated to be 15/. per annum, and appeared in evidence to be 15/. and three fowls. Sands v. Ledger, 2 Ld. Raym. 793, So where it was stated that the plaintiff demised "yielding and paying thereupon the yearly rent of 160/. by two even, &,c." and the lease in fact was " yelding and paying during the said term (except as hereinafter mentioned)," and there was a subsequent clause for the reduction of the rent in a certain case, which had not however occurred, this was held a fatal variance. Vavasour v. Ormrod, 6 B. and C. 430. «■ Defence. Evidence under the plea of nil debet.'] Whether the demise be by deed or not, nil debet is a good plea, for the specialty is only in- ducement to the action. B.JV. P. 170, and it puts in issue the whole declaration. Scilli/ v. Dalleij, 2 Salh 562. The defendant therefore may show under it payment to the plaintiff, or to another by his appointment. Taylor v. Beal, Cro. Eliz. 222, Gilb. Ev. 283, or that the plaintiff has agreed that a debt due by him to the defendant shall go in satisfaction of the rent. Gilb. on debt, 443, on evid. 283. It seems that the defendant cannot under this plea give in evi- dence that the plaintiff was bound by covenant to repair the pre- mises, and that he (the defendant) expended the rent in necessary reparations ; Taylor v. Beal, Cro. Eliz. 222, B. K P. 177, but see Gilb. Ev. 282 ; but if the lease be by parol, and the lessor directs the lessee to repair, and the lessee repairs accordingly, the money so laid out may be given in evidence under this plea as evidence of payment ; Gilb. on debt, 442 ; and where the cove- nant for payment of rent contains a proviso, that the tenant may deduct a portion of the rent for repairs, it seems that such deduc- • 18 Enf. Com. Law Reps. 162. p IS Id. 225. Debt for double Value. 319 tion may be given in evidence under this plea. Clayton v. Kinaston, 1 Ld. Raijm. 420, Bayley v. Offord, Cro. Car. 137 ; see also John- son V. Carre, 1 Lev. 152, City of Exeter v. Clare, 3 Keh. 321. The defendant may also give in evidence under this plea, that the plaintiff expelled him from the premises and kept him out, until after the rent became due, which operates as a suspension of the rent, B. JV. P. 177, Gilb. Evid. 279, 1 Saund. 204 {n) ; and an ap- portionment of the rent may be given in evidence under nil debet. Hodgkins v. Robson, 1 Vent. 277, Gilb. on rents, 189. An eviction by a third person under a title paramount, should, it is said, be pleaded specially. fVingfield v. Seckford, 2 Leon, 10, 2 Phill. Ev. 143, but see Gilb. on debt, 429, contra, and queer e. A release may, it seems, be given in evidence under this plea. Per Holt, C. J., Gallaway v. Susach, 1 Salk. 284, 394, Anon. 5 Mod. 18. Para- mour v. Johnson, 12 Mod. 377, but see Gilb. Ev. 281, 283, Gilb. on debt, 443. Where the demise is by deed, the statute of Hn)itations does not apply. Freeman v. Stacy, Hutt. 109. Where it was not by deed, it was formerly held that the statute might be given in evidence under the plea of nil debet. Anon. 1 Salk. 278, Draper V. Glassop, 1 Ld. Raym. 153, Com. dig. Pleader, 2 {W. 16), but it is now. decided that it must be pleaded. Chappel v. Durston, 1 C. and J. 1. Evidence on plea of assignment.'] In debt for rent against the lessee, who has pleaded an assignment and acceptance of the as- signee before the rent incurred, the assignment must be proved and also the acceptance of the assignee as his tenant, by the lessor ; Marsh v. Brace, Cro. Jac. 334 ; if the action is against the assignee, he may plead the assignment without any statement of an accept- ance; Tongue v. Pitcher, 3 Lev. 295, Com. Dig. Debt (F.) ; and an assignment by the assignee before the rent incurred, may, it seems, be given in evidence under nil debet. Skin. 318, Viii. Ab. Ev. (Z. a.) pi. 49. DEBT FOR DOUBLE VALUE. In an action of debt for double value, the plaintiff must prove the demise, the determination of the term, the holding over, the de- mand and notice in writing given to the defendant, and the amount of the double value claimed. By statute 4 Geo. II. c. 28, s. 1 , in case any tenant or tenants for life, lives, or years, or other persons who shall come into possession of any lands, tenements, or hereditaments, by, from, or under, or by collusion with such tenant or tenants, shall wilfully hold over any lands, &,c. after the determination of their term, and after de- mand made, and notice in writing given for delivering the possession thereof by his or their landlord or lessor, or the person or persons to 320 Debt for double Value. whom the remainder or reversion of such lands, &c. shall belong, his or their agents, thereunto lawfully authorised, such persons so holding over shall for and during the time he or they shall so hold over, or keep the person or persons entitled out of the possession of the said lands, 8 Id. 235- « 16 Id. 408. -i 9 Id. 41. Ejectment. 33 1 regulated by the covenants and conditions of the void lease. Doe V. Bell, 5 T. R. 171. So where he agrees to hold over after the expiration of a written lease, at an advanced rent, he will be pre- sumed to hold upon the terms of the former lease. Dighij v. Atkin- son, 4 Ca?nj)b. 275. So where the party is let into possession, and pays rent under an ageeement for a lease, a tenancy is created on the terms of the lease. Mann v. Lovejoij, R. and M. 355. Knight V). Bennett, 3 Bingh 3G1.= Doe v. Stratton, 4 Bingh. 446.' So also if, being in possession under such an agreement, he acknowledges that half a year's rent is due. Cox v. Bent, 5 Bingh. 185.^ See Freeman v. Jury, 1 M. and M. 19. A tenancy may also be im- pUed from other circumstances besides the payment or admission of rent due. Thus, where the tenants of glebe lands remained in possession for eight months after the death of the incumbent, it was held that after such a lapse of time it was to be presumed that the new incumbent had assented to the continuance of the tenancy on the same terms as before, and that a notice to quit was necessary. Doe V. Somerville, 6 B. and C. 126." A. demise " not for one year only, but from year to year," has been held to constitute a tenancy for two years at least, not deter- minable by a notice to quit at the expiration of the first year. Dunn V. Cartwright, 4 East, 31. So a demise "for a year, and after- wards from year to year," is a demise for two years ; Birch v. Wright, 1 T. R. 380 ; but where the demise was " for twelve months certain, and six months' notice afterwards," Lord Ellenbo- rough held that the tenant was at liberty to quit at the end of twelve months, giving six months' previous notice. T/wmpson v. Maberley, 2 Campb. 573. Where a tenant enters under an agreement for a lease for seven years, which is never executed, he is not entitled to notice to quit at the end of the seven years. Doe v. Shatton, 4 Bingh. 446.' Leases or agreements for leases.'] A question frequently occurs, whether the instrument produced is evidence of an actual de- mise or of an agreement to demise merely. Upon a review of the cases it seems that words of present demise, as, " I demise," or fu- ture words conferring a right of enjoyment, as that the party " shall hold and enjoy," are evidence of an actual lease. Harring- ton V. Wise, Cro. Eliz. 486. Baxter v. Brown, 2 W. Bl. 973. Poole V. Bentley, 12 East, 168. Barry v. JVugent, 5 T. R. 165. See also Wright V. Trezivant, 1 M. and M. 231. And that the mere stipula- tion that a lease shall at a future time be executed, which is consi- dered in the light of a covenant for more formal assurance, will not alter the effect of such words. Ibid. See Pinero v. Judson, 6 Bingh. 210.' But where on the face of the instrument it is evident that a • 13 Eng. Com. Law Reps. 8. < 15 Id. 36. 1 15 Id. 410. >■ 1.3 Id. 118. < 10 Id. 6G. 332 Ejectment. future lease is contemplated (though it be not expressly provided for), and at tlie same time various terms of the tenancy remain to be ascertained, then, thougli there be words of present demise, the instrument will operate as an agreement only. Morgan v. Bissel,S Taunt. 12. Again, where it is stipulated that the lessee shall do some act upon the premises before the execution of a formal lease, it is evidence of an intention to make a present demise. Poole v. Bentlcij, ]2 East, }G8. 13 East, 19. And a stipulation that the agreement shall be considered binding until one fully prepared can be produced, is evidence of the same intent. Ibid. Doe v. Groves, 15 East, 214. On the other hand, if a forfeiture would be incur- red by holding the instrument to be a lease, it is to be presumed that the intention of the parties was to make an agreement only. Doc V. Clare, 2 T. R. 730. And any words which show that a fu- ture act is to be done before the relation of landlord and tenant commences, as the purchase and addition of another piece of land to the premises, will be evidence that the instrument was not in- tended to operate as a lease. Doe v. Ashhurner, 5 T. R. 1G3, 12 East, 247. So where a stipulation is contained in the instrument, importing that something ulterior the agreement is to be done by way of a regular lease, this is evidence of an agreement merely. Doe V. S77iit/i, 6 East, 530. The law is well settled, that where there is any doubt as to the operation of the contract, the court must endeavour to discover the intention of the parties from the contents of the instrument ; and if they see a paramount intention that the instrument. shall oper- ate as a lease, they must hold it to be such, although it may con- tain conflicting expressions. Per Tindal, C. J., Phiero v. Judson, 6 Bivgh. 210."^ See also Clayton v. Burtenshaw, 5 B. and C. 41.' Tenancies at wiU, and cases of larrful possession.l Where a party has been let into possession pending a treaty for a purchase or a"^le&se, Goodtitle v. Herbert, 4 T. R. 680, Dunk v. Hunter, 5 B. and A. 322;™ or under a void or imperfect lease or convey- ance, Litt. s. 70, Doe v. Fernside, 1 Wils. 176; or where, having been tenant for a term which has expired, he continues in posses- sion, negotiating for a new one. Doc v. Stennett, 2 Esp. 717; in these and the like cases, where a party comes lawfully into posses- sion, he is either tenant at will, or at all events in lawful posses- sion, and cannot be ejected until such possession is determined by demand of possession, breaking olF the treaty or otherwise. Right V. Beard, 13 East, 210. Denn v. Rawlins, 10 East, 24. Doe V. Jackson, 1 B. and C. 448." But where the vendor of a term, before all the purchase-money was paid, agreed with the vendee that he should have possession of the premises till a given day, pay- ing the reserved rent in the mean time, and that in case he did not "ante, p. 331. n (i). i 11 Eng. Com. Law Reps. 138. » 7 Id. 115. » Id. 126. Ejectment. 333 pay the residue of the purchase-money on that day, he should forfeit the portion he had already paid, and not be entitled to an assign- ment of the lease, Lord Ellenborough held that this agreement ope- rated like a clause of re-entry on a breach of covenant in a lease, and that the residue of the purchase-money not being paid on the appointed day, the vendee's interest thereupon ceased, and he might be ejected without any notice, Doe v. Sayer, 3 Campb. 8. And if a third person, under such circumstances, has come in as tenant to the vendee, ejectment may be maintained against such third person without notice. Doe v. Boulton, 6 M. and S. 148. So where a man' 'got into possession of a house without the privity of the landlord, and the parties afterwards entered into a negotiation for a lease, but disagreed about the value of the fixtures. Lord Ellenborough was of opinion that if this was a tenancy of any sort it was a tenancy at sufferance, and that a notice to quit was unnecessary. Doe v. Quigley, 2 Campb. 505 ; ajicl see Doe v. Lawder, 1 Stark. 308.° JVotice to quit, hoiv proved.'] Where the action is brought on the determination of the tenancy by notice to quit, the notice may be proved by a duplicate original, or examined copy without a notice to produce the original. Kine v. Beaumont, 3 B. and B. 288.P The notice delivered must be proved to have been properly signed, and if attested, the attesting witness must be called. Doe v. Durnford, 2 M. and S. 62. JVotice to quit, at ivhat thne it must he given.] The notice to quit must be proved to have heen given half a year, (182 days) before the end of the year, except where the rent is payable on the usual quarterly feast-days, when notice on one feast-day to quit on the next but one is sufficient. Right v. Darby, 1 T. R. ] 59, Doe v. Green, 4 Esp. 199, Doe v. Kightley, 7 T. R. 63, Hoicard v. Wem- sley, 6 E^p. 53. Thus notice on the 28th of September to quit on the ensuing '<>5th of March is sufficient. Roe v. Doe, 6 Bingh. 574.' But the period may be controlled by special agreement or local custom. Roe v. Charnock, Peake, 4 Timmins v. Roivlinson, 3 Burr. 1609. Where the tenancy is for less than a year, the length of the notice must be regulated by the letting, as a month's notice for a monthly letting. Doe v. HasseJI, 1 Esp. 94. see Wilson v. Abbott, 3 B. and C. 88.'' The notice must expire at the expiration of the year. Right v. Darby, 1 T. R. 159, or where the tenancy is for less than a year, at the end of such shorter period, or some correspond- ing period. Kemp v. Derrett, 3 Campb. 510. On a letting from year to year, to quit at a quarter's notice, the notice must expire with the current year. Doe v. Donovan, 1 Taunt. 555, 2 Campb. 78. The tenancy will be taken prima facie to commence from the day of the • 2 Eng. Com. Law Reps. 402. r 7 Id. 440. q 19 Id. 169. ' 10 Id. 17. 334 Ejectment. tenanfs entry, and not with reference to any particular day. Kemp V. Dcrrett, 3 Campb. 510. But where a tenant entered in the middle of a quarter, and afterwards paid for that half-quarter, and continued to pay from the commencement of a succeeding quarter, he was held to be a tenant from the succeeding quarter day. Doe v. Johnson, 6 Esp. 10. And the same was held by Best, C. J., in Doe v.StapIeton, S C. and P. 275.« However, in another case where the tenant entered in the middle of a quarter, upon an agreement to pay rent quarterly, and for the half-quarter, it was left to the jury to say whether the party was tenant from the quar- ter day prior to the time when he entered, or from the succeeding quarter day, and under the direction of Lord Ellcnborough the jury found that the tenancy commenced from the preceding quarter day. Doe v. Selwyn, Adajus Eject. 129. If a tenant holds over and pays rent after the expiration of his lease, notice to quit must be given with reference to the time of entry under the original lease. Doe v. Samuel, 5 Esp. 173. So where a tenancy from year to year arises on payment of rent, by a tenant holding under a lease void by the statute of frauds, the void lease will regulate the time of the notice. Doe v. Bell, 5 T. R. 472, and see ante, p. 263. Where the tenant enters upon different parts of the premises at different times, it is sufficient.to give half a year's notice to quit, with refer- ence to the original time of entry on the substantial part of the premises demised, which will be good for all. Doe v. Snowdon, 2 W. Bl. 1224, Doe v. Spence, 6 East, 120, Doe v. Wathins, 7 East, 551. A holding from Michaelmas prima facie signifies Michael- mas new style. Doe v. Vince, 2 Campb, 257. But where the te- nancy was from Michaelmas to Michaelmas, Lord Kenyon permit- ted evidence to be given, that by the custom of the country, such a tenancy was considered to be from old Michaelmas. Forky v. Wood, Runn. Ej. 112, 1 Esp. 198, S. C. Doe v. Benson, 4 B. and A. 588.* And where the notice was delivered on Sept. 37, to quit " at the expiration of the term for which you hold the same," which notice was served personally on the tenant who observed, " I hope Mr. M. does not mean to turn me out," Holroyd, J., permitted the lessor to prove that it was the general custom in that part of the country where the demised lands lay to let (he same from Lady- day to Lady-day, and that the defendant's rent was due at Michael- mas and Lady-day respectively ; and he directed the jury to pre- sume that this tenancy, like other tenancies in that part of the country, was from Lady-day to Lady-day. Doe v. Lamb, Adams Eject. 31G, 3cZ ed. So evidence of the intention of the parties is admissible. Dew v. Hopkinson, 3 D. and R. 507." Where the te- nancy is from old Michaelmas, a notice to quit at Michaelmas ge- nerally is good. Doe v. Vince, 2 Campb. 256. But where in a lease by deed, the tenancy was " from the feast of St. Michael," it was • 14 Eng. Com. Law Repf. 303. ' 6 Id. 527. » 16 Id. 177. Ejectment. — By Landlord. c{35 held that those words imported neio Michaelmas, and could not be shown by extrinsic evidence to refer to o/c? Michaelmas. Doe v. Lea, 11 East, 312, 4 B. and A. 589.'' A notice to quit not personally- served upon the tenant is not of itself, even prima facie evidence of the tenancy having commenced at that period of the year at which the notice expires. Doe v. Calvert, 2 Campb. 388. But if person- ally served apon the tenant, who does not object to it, it is prima facie evidence of the commencement of the tenancy, if a specific time for quitting be mentioned. Thomas v. Thomas, 2 Campb. 648, Doe V.Foster, 13 East, 405. But such evidence may be rebutted by showing the period when the tenancy did, in fact commence. Oahapple v. Copous, 4 T. R. 361. Where no specific time to quit was mentioned, but the notice was to quit " at the expiration of the current year," and a declaration in ejectment was served nearly a year afterwards, laying the demise half a year after the notice, and the tenant on being served with the declaration made no objection to the notice to quit, nor set up any right to a longer possession, Lord Ellenborough held that it was a question for the jury to determine, whether the tenant must not be understood as having admitted that the tenancy was determined by the notice. Doe V. Woombwell, 2 Campb. 559. So where a notice was given to a weekly tenant to quit '• on Friday provided his tenancy ex- pired on Friday, or otherwise at the end of his tenancy next after one week from the date of this notice," upon an ejectment brought after a suflicient time had elapsed, to cover a tenancy commencing on any day of the week, the notice was held sufficient. Doe v. Scott, 6 Bingh. 362.^ If the tenant upon application by his land- lord, state his tenancy to have commenced on a particular dav, he is concluded from disputing the accuracy of such statement. ' Doe V. Lambley, 2 Esp. 635. A receipt for rent, stating it to be a year's rent, up to a particular day, is prima facie evidence of the com- mencement of the tenancy at that day. Doe v. Samuel, 5 Esp. ITS. Notice to quit, to ichom to be given.] One of several jointenants may give notice, which will be good for his share. Doe v. Chaplin, 3 Taunt. 120. And where a notice is given, signed by a stranger professing to be an agent for all the joint-tenants, their subsequent recognition of his authority will be sufficient. Goodtitle v. Wood- ward, 3 B. and A. 689.^ Where the ejectment is brought by one person, the bringing of the action seems a sufficient recognition of his agent's authority ; but if the defendant holds under several landlords, the mere fact of bringing the ejectment in their names will hardly be sufficient, as it may have been brought by one of the lessors in the name of all, without any joint authority ; some fur- ther evidence therefore seems necessary, such as proof by the at- ' 6 Eng. Com. Law Ropa, 528. " 19 Id. 104. * 5 Id. 424. 336 Ejectment. — Bi/ Landlord. torney, that the action has been brought under the joint direction of the several lessors. 2 PhiU. Ev'ul. 230. If the landlords are partners in trade, in a notice the names of all signed by one only is valid. Doe v. Ilu/me, 2 M and R. 433, Where a lease for twenty -one years contained a provisio, that in case either landlord or tenant, or their respective heirs and executors, wished to deter- mine it at the end of the first fourteen years, and should give six months' notice in writing under his and their respective hands, the term should cease ; it was held that a notice to quit, signed by two only of three executors of the original lessor, to whom the free- hold was devised as joint-tenants, expressing the notice to be given on behalf of themselves and the third executor, was bad, notwith- standing a subsequent recognition of it by the third executor. Right V. CutJiell, 5 East, 491. A receiver appointed by the Court of Chancery with authority to let lands, has also authority to give a notice to quit. Doe v. Read, 12 East, 57. A verbal notice from a steward of a corporation is sufficient without showing an authori- ty under seal. Doe v. Pierce, 2 Camph. 96. Where there was a proviso in a lease for twenty-one years, that if either of the par- ties should be desirous to determine it in seven or fourteen years, it should be lawful for either of them, his executors or administra- tors, so to do upon twelve months' notice to the other of them, his heirs, executors, or administrators, it was held that the devisee of the lessor was entitled- to give such notice. Roe v. Hayley, 12 East, 464. JVotice to quit, to icliom to he givenJ] Where the premises have been underlet, the subtenancy must be determined either by a no- tice from the lessor to the lessee, or from the lessee to the sublessee ; a notice from the lessor to the sublessee is inoperative. Pleasant v. Benson, 14 East, 234. Roe v. tViggs, 2 JV. R. 330. The notice from the lessor to the lessee should be served upon the latter, for where the service was upon a relation oi' the subtenant on the premises. Lord Ellenborough ruled the service to be insufficient, though the notice was addressed to the original lessee. Doe v. Levi, Adams Eject. 115. Where A. had been tenant of certain premises, and upon his leaving them B. took possession, it was held that in the absence of any evidence to the contrary it might be presumed that he came in as assignee of A., although he had never paid rent, and that notice to quit was rightly given to B. Doe v. Williams, 6 B. and C. 41.'' Where a corporation is tenant, notice to quit should be given to the corporation, and served upon its offi- cers. Doe V. Woodman^ 8 East, 228. Notice to quit,fofrm o/!] The notice may be by parol, unless re- quired to be in writing by agreement of the parties, Timmins V. Rowlinson. 3 Burr. 1603, Doe v. Crick, 5 Esp. 196, or by the y 13 Eng. Com. Law Repa. 105. Ejectment. — By Landlord. 337 provisions of a power. Legg v. Benion, JVilles, 43. Though the courls listen with rehictarice to objections to the form of the notice, Doe V. Archer, 14 East, 245, it must yet be exphcit and positive, and not give the tenant an option of continuing under a new agree- ment; but a notice to quit, "or I shall insist on double rent," was held good, because the latter part of the notice evidently referred only to the penalty inflicted by 4 Geo. II. c. 28, though the terms of that statute which gives double the annua! value, were mistaken. D. V. Jaclison, Dough 175. If the notice had really contained the option of a new agreepient, and said for instance, '■'•or else that you agree to pay double rent," it would not have been good. Per Lord Mayisfield, ibid. So where the notice was to quit " on the 25th day of March, or 8th day of April next ensuing," and was delivered be- fore new Michealmas day, it was held good as intended to meet a holding, comntcncing either at new or old Lady-day, and not to give an alternative. Doe v. Wi'ightman, 4 Esp. 5. So in case of an obvious mistake the courts will hold the notice good, as where a notice was given at Michaelmas, 1795, to quit at Lady-day, " which will be in the year 1794," and the defendant was told at the time of the service of the notice, that he must quit at next Lady- day. Doe V. KightJey, 7 T. R. 63. So a notice dated 27th Septem- ber, and served on the 28th, requiring the tenant to quit at Lady- day next, will be understood to mean Lady-day in the succeeding year. Doe v. Culleford, 4 D. and R. 24S.''' A misdescription of the premises which can lead to no mistake will not be fatal, as wdiere a house is described as " the V/aterman's Arms," when in fact it is called " the Bricklayer's Arms," there being no sign called the Waterman's Arms in the parish. Doe v. , 4 Esp. 185. As a lessor cannot determine the tenancy as to part of the things de- mised, and continue it as to the rest, the notice must include all the premises held under the same demise, and the courts will, if possible, give effect to the notice, so as to determine the tenancy altogether. Doe V. Archer, 14 East, 245. Doc v. Church, 3 Camph. 71. Where the notice is in writing, it is not necessary that it should be directed to the tenant in possession, provided it be personally served upon him ; Doe v. Wrightrnan, 4 Esp. 5 ; and where it is directed to him by a wrong christian name, and he keeps it, the irregularity is waived. Doe v. Spiller, G Esp. 70. A notice to quit to a tenant of lands originally demised to the rector and churchwardens of a parish, and their successors in trust, signed by the rector and churchwar- dens, requiring the tenant to deliver up the premises to the rector and churchwardens for the time being, is bad. Doe v. Fairclough, 6 M. and S. 40. Notice to quit, service of.'] It is suflicient if the notice is deliver- ed and explained to the servant of the tenant at his dwelling-house, ' 16 Eng. Com. Law Reps. 202. 43 338 Ejectment. — By Landlord. though the dwelling-house be not on the demised premises, such service atlbrding presumptive evidence, that the notice came to the hands of the tenant, the servant not being called ; Jones v. Marsh, 4 T. R. 404 ; and it is suUicient, though the tenant be not inform- ed of it, till within half a year of its expiration ; Doe v. Dunbar, 1 ^1/. and AI. 10; but it is not sullicicnt that the notice was left at the tenant's dwelling-house, without showing that it was delivered to a servant, &.c. Doe v. Lucas, 5 Esp. 153. Service of the notice, on the premises, upon one of two jointenants who resides on the premises, is presumptive evidence of the notice having reached the other jointenant. Doe v. Watkins, 7 East, 557. Doe v. Crick, b Esp. 196. If there be a sub-tenant, the notice from the original lessor must be served upon the lessee. Vide supra. Notice to a corpora- tion may be served upon its officers. Doe v. IVoodtnan, 8 East, 228. JVotice to qicit, u-aiver of.'] The notice may be waived by the ac- ceptance of rent after the expiration of the notice, but the rent must be received qua rent, which is a question for the jury. Goodright V. Cord)rent,(j T.R.219. Doe v. Batten, Coirp. 242. Where a quar- ter's rent, due after the expiration of the notice, had been received by the landlord's banker without any special authority, though the rent was usually paid to him, it was held, in the absence of any proof that the rent had come to the landlord's hands, not to be a waiver. Doe v. Calvert, 2 Camph. 3S7. A distress for rent ac- cruing after the expiration of the notice, is a waiver. Doe v. IVil- lingale, 1 H. Bl. 311. A recovery in an action for use and occupa- tion, for a period subsequent to the expiration of the notice seems to be a waiver. Birch v. Wright, 1 T. R. 387. The notice may be waived by a subsequent notice, for it recognises a tenancy sub- sisting after the expiration of the former. Doe v. Palmer, 16 East, 53. But where a second notice was given after the expiration of the first notice, and after the commencement of an ejectment, in which the landlord continued to proceed, notwithstanding the se- cond notice, it was held no waiver, for it was not possible for the defendant to suppose that the plaintiff intended to waive the first notice, when he knew that the plaintiff' was, on the foundation of that very notice, proceeding by ejectment to turn him out. Doe V. Humphreys, 2 East, 230. So where, after the expiration of a notice, the landlord gave a second notice, " I do hereby require you to quit the premises which you now hold of me, within 14 days from this date, otherwise I shall require double value," it was ruled that the latter notice having for its object only the re- covery of the double value; did not operate as a waiver. Doe v. Steel, 3 Campb. 151. So where no notice to quit was necessary, and a notice was given " to quit the premises which you hold Ejectment. — By Landlord. 339 under me, your term therein having long since expired," the court considered it a mere demand of possession, and not a recognition of a subsisting tenancy. Doe v. IngUs, 3 Taunt. 54. And where a landlord gave his tenant notice to quit, but promised not to turn him ouf, unless the premises were sold; and afterwards, and after the expiration of the notice to quit, the premises were sold, but the tenant refused to deliver up the possession, it was held that the promise was no waiver of the notice, and that the refusal of the tenant made him a trespasser from the expiration of the notice to quit. Whiteacrs v. Symonds, 10 East, 13. JVotice to quit, when dispensed with.] When the tenant has at- torned to another person, or done any act disclaiming to hold of his landlord, or has in any way put him at defiance, the landlord may treat him as a trespasser, and no notice to quit will be necessary ; B. JV. P. 96, Doe V. I'Vhittich, Gow, 195 ; but a refusal to pay rent to a devisee under a contested will, the tenant declaring that he was ready to pay the rent to any person entitled to it, was held not to dispense with a notice to quit. Doe v. Pasquali, Peake, 196._ So it has been ruled that the mere act of paying the rent to a third per- son does not operate as the forfeiture of a lease. Doe v. Parker, Gow, 180. And where the defendant, who held under a tenant for life, received on his death a letter from the lessor of the plaintitT, claiming as heir and demanding rent, to which the defendant an- swered, that he held the premises as tenant to S., that he had never considered the lessor of the plaintiff' as his landlord; that he should be ready to pay the rent to any one who should be proved to be entitled to it; but that, without disputing the lessor of the plaintiiF's pedigree, he must decline taking upon himself to decide upon his claim, without more satisfactory proof in a legal manner, it was held that this was a disclaimer. Doe v. Frowd, 4 Bingh. 557.* On forfeiture of the lease.'] Where the lessor proceeds on the forfeiture of the "lease, he must prove the demise, ante, p. 66, and the forfeiture incurred. Where the forfeiture is for the non-per- formance of a covenant, the lessor of the plaintiff must give some evidence of the non-performance, and it will not in the first instance lie upon the defendant to prove a performance. Doe v. Rohson, 2 C. and P. 245." The right of re-entry will appear in proof of the lease. Where, by the agreement of demise, it was " stipulated and conditioned that the tenant should not assign," &c., this was held to be a condition for the breach of which the lessor might maintam an ejectment. Doe v. Watt, 8 B. and C. 308.= Where the lessee underlet, and in the underlease there was a proviso that, in case ot »15Enff. Com. Law Rops. 70. M2Id. 111. • 15 Id. 22.5. 3 10 Ejectmenl. — By Landlord. breach of covenant, the /essor and lessee might enter, it was held that the lessee alone might take advantage of this proviso. Doe u. W/iitc, 4 Biin^/i. 27(>." if the proceeding he at common law for non-payment of rent, a regular demand of the rent with certain solemnities must be proved. 1 Smind. 287 (??)• Doe v. Paul, 3 C. ajid P. 013.'' But by stat. 4 G. II. c. 28, where half-a-year's rent is in arrear, the lessor may, without any formal demand or re-entry, serve a declaration in ejectment; or in case it cannot be served, or no tenant be in possession, aflix the same upon the door of the mes- suage, or if the ejectment be not for a messuage, upon some notorious place of the lands, cv:c., and such alTixing shall be deemed legal ser- vice thereof; which service or afiixing shall stand in the place of a demand or rc-cntr}', and in case of judgment against the casual ejec- tor, or nonsuit for not confessing lease, entry, and ouster, it shall be made appear to the court where the said suit is depending, by aiiida- vit, or be proved upon the trial, if the defendant appears, that half-a- vear'srent was due before the declaration was served, and that no sufficient distress was to be found upon the demised premises counter- vailing the arrears then due, and that the lessor had power to re-en- ter, in such case the Icspor shall recover judgment as if the rent in arrear had been legally demanded, and a re-entry made. Wlierc a lease contained a proviso for re-entry, in case the rent were in arrear 21 days after the day on which it was due," being lawfully demanded," it w as held (Lord EUenborough diss.) to be within the statute, and that it was unnecessary to prove an actual demand. Dos v. Alexander, 2 M. and S. 5 B. and A. 385.^ Un- der this statute the landlord must be prepared with evidence of the service of the declaration in ejectment, or of the affixing of the same to the door of the messuage, &.c,, that half-a-year's rent was due, and that no sufficient distress was found on the premises. It is no ground of nonsuit that the ' declaration was served on a day subsequent to the day on which the. demise was laid, that be- ing after the rent became due. Doe v. Shawo'oss, 8 B. and C. 752.'" Evidence that there was no sufficient distress on the premises, on a certain day between the day when the rent became due and the service of the declaration, is sufficient prima facie evidence. Doe V. Fucliau, 15 East, 280. It must appear that every part of the premises has been searched. Rees v. King, cited2 B. and B. 514,^ Forest, 19. Unless the tenant prevented the landlord from having ac- cess to the premises, as by locking the doors. Doe v. Dyson, 1 M. and M. 77. A variance between the amount of rent proved to be due, and that demanded in the lessor of the plaintiff's particulars, is immaterial. Jenni/ v. Moodi/, 3 Bingh. 3." Where the action is "» 13 Eiifj. Corn. Law Reps. 432. « 14 Id. 433. H Id. 137. " 10 Id. 223. f(i Id. 223. >ill Id. 4. Ejectment. — By Landlord. 341 brought on a proviso of re-entry in case of breach of covenant, and a particular of the breaches has been given, the proof must be ac- cording to the terms of the particular. Doe v. Philips, 6 T. R. 597. If brought on a forfeiture incurred by underletting, it is sufficient, pr'imd facie, to prove a third person in possession of the premises, acting and appearing as the tenant, and the declarations of such person are said to be evidence. Doe v. Rickarby, 5 Esp. 4 ; sed vide Doe v. Paine, 1 StarJc. 86." .'. ' ^ ■ Forfeiture tmKferfc] Where the lease is voidable, and not void, the defendant may show that the forfeiture has been waived. A lease for lives is voidable only, though the condition be that the lease " shall be void." 1 Saund. 287, d {n). In a lease for years if the condition be, that the lease "shall be void," it is voidable only at the option of the lessor. Doe v. BanJiS, 4 B. and A. 401." Read v. Farr, 6 M. and S. 121 ; so if the condition be, that " the lessor shall re-enter," the term is only voidable. Pennanfs case, 3 Rep. 64, a. Goodright v. Davids, Coirp. 804. And where the proviso was, " that if the rent should be in arrear for twenty-one days after de- mand made, or if any of the covenants should be broken, then the term thereby granted, or so much thereof as should be then unex- pired, should cease, determine, and be wholly void ; and it should be lawful to and for the landlord upon the demised premises wholly to re-enter, and the same to hold for his own use, and to expel the lessee," it was held that the lease was voidable only, and not void, and that the landlord was bound to re-enter in case of forfeiture. Arnsby v. Woodbradard, G B. and C. 519.^ Merely lying by and witnessing a forfeiture is not a waiver; Doe v. Allen, 3 Taunt. 78 ; but acceptance of rent accruing since the forfeiture, is a waiver; to constitute such waiver, the lessor must have notice of the for- feiture, which is a material and issuable fact. Goodright v. Davids, Cowp. 804. Rowe v. Harrison, 2 T. R. 430, 431. Pennanfs case, 3 Rep. 64, b. So bringing an action of covenant for such rent is a waiver. Roe v. Minshull, B. N. P. 96 ; see S. C. Selw. K P. 677. The lessor does not waive his right of re-entry by taking an insuffi- cient distress for the rent, by the non-payment of which the lease became forfeited. Brewer v. Eaton, 3 Dough cited 6 T. R. 220. And where a lease contained a clause of re-entry in case the rent should be in arrear 21 days, and there should be no sufficient dis- tress, Lord Ellenborough held that the landlord, having distrained within the 21 days, but continued in possession after, did not waive his right of re-entry. Doe v. Johnson, 1 S7«r/c. 411."" If the breach be a continuing one, as the using rooms in a manner prohibited by thq lease, the acceptance of rent after such user is not a waiver of i 2 Eng. Com. Law Reps. 307. " 6 Id. 4G2. ' 13 Id. 241. ■" 2 Id. 448. 342 Ejectment. — By Landlord. the forfeiture incurred by the subsequent continuing user. Doe v. JVoodbridgc, 9 B. and C. 37()." Where a lease contained a general covenant to repair, and a covenant to repair upon thi-ce months' notice, Lord Ellenborough held that the landlord, by giving a notice " to repair forthwith," had not waived his right of re-entry for the breach of the general covenant. Roe v. Paine, 2 Campb. 520. But where a lease con- tained covenants to keep the premises in repair, and to repair within three months after notice, and a clause for re-entry for the breach of any covenant, and the premises being out of repair, the landlord gave a notice to repair within three months ; it was held that this was a waiv'er of the forfeiture incurred by the breach of the general covenant to keep the premises in repair, and that the landlord could not bring ejectment until Ihe expiration of the three months. Doe d. Morecraft v. Meux, 4 B. and C. GOG." In Doe v. Prt^72e the language of the notice was very different, the tenant was required to put the premises in repair forihnnth ; that did not prevent the landlord from bringing his ejectment at any time. Per Bayleij, J., ibid. 609 ; see Doe v. Miller, 2 C. and P. 348." In some cases the acts of the lessor may prevent the accruing of a forfeiture, as in the following case of an ejectment on forfeiture for breach of covenant, in a lease wherein the lessee covenanted to insure in the joint names of himself and the lessor, and in two- thirds of the value of the premises demised. The lessee had in- sured in his own name only, and, as contended, to a less amount than two-thirds the value of the premises. Both parts of the lease remained in the possession of the lessor, and an abstract only had been delivered by him to the lessee, which contained no mention that the insurance v^as to be in the joint names, though it stated that it was to be in two-thirds of the value of the premises. The lessor of the plaintitf had previously insured the premises at the same sum as the defendant. It was held that the conduct of the lessor being such as to induce a reasonable and cautious man to conclude that he was doing all that was necessary or required of him in insuring in his own name, and to the amount insured, he could not recover for a forfeiture, though there was no dispensation or release. Doe v. Rome, \ R. and M. 343. The tenant may prevent the forfeiture by tendering the rent. " The statute is beneficial to the tenant as well as the landlord. It relieves the latter from the necessity of making a demand with all the precision required at common law, and the tenant incurs no forfeiture until the declaration in ejectment is served upon him ; and if at that time he is ready to pay the rent, although he did not tender it when it was due, it gives him the same benefit as if he » 17 Entr. Com. Law Reps. 399. •lOId.417. p 12 Id. 163. EjectmetU. — By Heir-at-Laio. 34^ had tendered it at that time. Per Holroyd, J, Doe v. Shaiocross, 3 B. and C. 756.i See Co. Litt. 202, a. By Heir-at-Law. Where the lessor of the plaintiff claims as heir-at-law, he must prove that the ancestor from whom he claims was actually seised of the lands, &c. ; or if he claim as heir to a remainderman, that the ancestor from whom he claims was the person in whom the remainder first vested by purchase. RadcUffe's case, 3 Rep. 42, a. Walk, on desc. 120. 2. That he is heir to such ancestor, and where he claims as heir to one in remainder, that the remainder has vest- ed in possession. Proof of seisin.'] The seisin in fee may be proved by showing the ancestor in actual possession, or that he received rent from the person in possession, which is presumptive evidence of seisin in fee. Co. Litt. 15 a. B. JV. P. 103. Jai/ne v. Price, 4 Taunt. 326, ante, p. 15. So proof of possession of the premises by the ances- tor's lessee for years, is evidence of seisin, for the possession of tenant for years gives an actual seisin to the owner -of the inheri- tance. Co. Litt. 243, a. Bushley v. Dixon, 3 B. and C. 298.-- So the possession of guardian in socage confers an actual seisin upon the infant. Doe v. JVeioman, 3 fVils. 516. Evidence of shooting and appointing a gamekeeper by the lord of a manor is not proper- ly referable to a right of soil. Per Bay/ey, J., Tynrhitt v. Wynne, 2 B. and A. 560. The declarations of a deceased tenant that he held under a particular person are admissible to prove the seisin of that person. Uncle v. Watson, 4 Taunt. 16. Proof of descent.'] The lessor of the plaintiff must prove that all the intermediate heirs between himself and the ancestor from whom he claims, are dead without issue. Richards v. Richards, 15 East, 294 {n). As to the presumption of the duration of life, vide ante, p. 18. If the lessor of the plaintiff claim as collateral heir, he must prove the descent of himself and the person last seised from a common ancestor, or at least from two brothers or sisters. Doe v. Lord, 2 W. Bl. 1100. Births, marriages, and deaths, may be proved by examined copies of entries in parish registers, and proof of the identity of the persons therein named, and of the parties in question. Ante, pp. 62, 1 14. The herald's books, ante, p. 113, declarations of deceased members of the fjimily, ante, p. 20, descriptions in family bibles, memorandums by members of the fa- mily, recitals in family deeds, monumental inscriptions, inscriptions on rings, old pedigrees hung up in family mansions, and the like, are admissible to prove a pedigree. Ibid. In proving a marriage it is not necessary in the first instance to give evidence of the regular 1 10 Enjj. Com. Law Reps. 223. » 10 Id. 83. 344 Ejeclment. — By Heir-at-Lmv. publication of the banns, or of the reejularity of the license, for the presumptive proofs of marriage have not been taken away by the marriage act. Devcreiix v. Much Dew C/turch, 1 JV. Bl. 3G7. And since that act a marriage may be proved by reputation as well as before. Reed v. Passer, PeaJce, 233 ; or by the presump- tion arising from cohabitation. B. M P. 114. Even where the parents are alive, reputation is sufficient evidence of the marriage in ejectment by the son. Doe v. Flemwg, 4 Bingh. 2G6.' Either of the married parties, provided they be not interested, is competent to prove or disprove the marriage. Goodright v. Moss, Cowp. 593. As to Fleet marriages, see ante, p. 114. The declarations of a relative are not evidence when the rela- tive himself can be produced, Periderell v. Pcnderell, 2 Str. 925 ; and declarations made after a suit commenced, or a controversy preparatory to one, cannot be admitted. Berkeley peerage case, 4 Ca?7ipb. 401, ante, p. 20. Defence. Illegitimacy. 1 The defendant may prove the marriage void by a prior marriage, want of age, want of reason, or the non-observance of the solemnities required by the marriage act. 2 Phill. Ev. 235. The marriage of a minor by license without the consent of the father is good, the 4 Geo. IV. c. 75, s. 16, being directory only. R. V. Inhah. of Birmingham, 8 B. and C. 29.* But by s. 22, if any person shall knowingly and wilfully intermarry in any other place than a church, or such public chapel wherein banns may be law- fully published, unless by special license, or shall knowingly and wilfully intermarry without due publication of banns or license from a person or pcersons having authority to grant the same first had and obtained, or shall knowingly and wilfully consent to or ac- quiesce in the solemnization of such marriage by any person not being in holy orders, the marriages of such persons shall be null and void. To prove the illegitimacy of a child, want of access, or any other circumstances which tend to show that the husband could not, in the cours<^; of nature, have been the flither of his wife's child, are good evidence. R. v. Lv-jfe, 8 East, 206 ; and pre- sumptive evidence of non-access is admissible. Goodright v. Saul, 4 T. R. 356. Whenever a husband and wife are proved to have been together at a time when, in the order of nature, the husband might have been the father of the child if sexual intercourse did then take place, such sexual intercourse is 'prima facie to be pre- sumed, and it is incumbent on those who dispute the legitimacy of the child to disprove the fact of sexual intercourse having taken place by evidence of circumstances which afford an irresistible presumption that it could not have taken place, and not by mere evidence of circumstances which may afford a balance of pro- ■ 13 Eng. CoJii. Law Reps. 426. ' 15 Id. 131. Ejectment. — By Devisee, 345 babillties against the fact, that sexual intercourse did take place. Per Sir J. Leach, M. R. Head v. Head, 1 Sim. and Shi. 152, S. C. af- firmed, 1 Turner, 139, see the Ba?iburt/ peerage case, 1 Sim. and 'Stu. 153, Morris v. Davies, 3 C. and P. 218, 427/' In case of a separation d mensa et Ihoro, the children born during that period will be bastards unless access be proved. St. George and St. Mar- garet, 1 Salk. 123. A wife will not be permitted to prove the non- access of her husband, but she is competent to prove the fact of her connexion with the person whom she changes as being the real father of her child. R. v. Luffe, 8 East, 203. By Devisee of Freehold Interest. Where the lessor claims a freeheld interest by devise, he must prove : 1. The seisin of the testator, vide ante, p. 343. 2. The re- gular execution of the will, vide ante, p. 72 ; and in case there are any estates limited by the will prior to the devise to himself, the determination of such estates. 3. The death of the testator. Where the devisee of an estate refused to take it, saying she was entitled as heir-at-law, and would not accept any benefit by the will of the devisor, it was held that this was not such a disclaimer as prevented her from afterwards bringing ejectment, and relying on her title as devisee. Doe v. Smyth, 6 B. and C. 112.^ Defence. The defendant may impeach the wiil> either by showing that it is a forgery, or by proving the incapacity of the testator to make a will. This incapacity may arise either from coverture or infancy. Stat. 34, 35, H. VHl. c. 5, s. 14 ; or from idiocy, or non sane memory. Ibid, the Marquis of Winch, case, 6 Rep. 23, a. So it may be shown that the will was made under duress, or obtained by fraud. Doe v. Allen, 8 T. R. 147. Will void from idiocy, or non sane memory.'] It is not enough that the testator, when he makes his will, should have suflicient memory to answer familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his lands with understanding and reason. jMarquis of Winch, case, 6 Rep. 23, a. If the defendant succeed in proving that the testa- tor has been affected by habitual derangement, then it is for the other party who claims under the will, to show sanity and compe- tency, at the period when the act was done. Atty-Gen. v. Parnther, 3 Br. C. C. 441. 1 Phillim. 100. Revocation of will by subsequent will.'] The defendant may show " 14 En?. Com. Law Reps, 275. 378. ' 13 Id. 115. 44 346 Ejectment. — By Devisee. the will revoked " by some other will or codicil in writing," ac- cording to the Gth sect, of the statute. Such second will, to ope- rate as a revocation, must be executed according to the requi- sitions of the 5th section ot the statute. See ante, p. 73. Ecclestone V. Speahe, Carth. 80. If the second devise do not expressly revoke, it revokes only as far as is clearly inconsistent with the former devise. Ilaruood v. Goodright, Cony. 87. Revocation of will by other uriting.'] By the 6th sect, of the statute of frauds a will may be revoked " by some other will or codicil in writing, or other writing of the devisor, signed in the pre- sence of three or four witnesses, declaring the same." This statute docs not require the witnesses to subscribe or attest the writing in the presence of the devisor, or indeed to subscribe it at all. Town- send V. Pearce, 8 Vin. Ah. Devise, p. 142. Revocation of will by cancelling, 4*c.] By the same section of the statute a will may be revoked " by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence, and by his directions and consent." The act must be done with an intention of revoking, and though the burning or tearing be partial or incomplete, yet if done with an intention to revoke, it will ope- rate as a revocation. Bibb v. Thomas, 2 W. Bl. 1043, Winsor v. Pratt, 2 B. and B. 650."^ It is a question of fact for the jury, whether the testator had completed the intended act of revocation. Doe V. Perks, Gow, 193. The declarations of the testator at the time of doing the act, and his subsequent declarations respecting it, are admissible. Burtenshaw v. Gilbert, Cowp. 53, 2 East, 534 (b). Implied revocations.'] The subsequent marriage of the testator, and the birth of a child, without provision made for them, operate as an implied revocation. Doe v. Lancashire, 5 T. R. 58. It seems doubtful whether parol evidence is admissible to rebut an implied revocation. In Lugg v. Lugg, 1 Ld. Raym. 441, it is said, that if by any expression, or any other means, it had appeared that it was the testator's intention that his will should continue in force, the marriage and birth of issue would not have been a revocation. So in Brady v. Cubitt, Dough 31, such evidence was considered ad- missible by three of the judges; and it is the practice of the eccle- siastical courts to receive it. Emmerson v. Boville, 1 Phillim. 342,=^ Holloway v. Clarke, Id. 339," Johnson v. Johnson, Id. 468.^ See also Goodtitle v. Otwoy, 2 //. Bl. 522. But on the other hand Lord Alvanley expressed doubts as to the admissibility of such evidence. Gibbons v. Caunt, 4 Ves. 848, which were likewise entertained by the Lord Chancellor in Kenebel v. Scrafton, « 6 Eng. Com. Law Reps. 299- > 1 Eng. Eccles. Reps. 95. r 1 M. 9:3. ' 1 Id. 11 1 . Ejectment. — By Devisee. 347 6 Ves. 663, 2 East, 538, S. C. See also Doe v. Lancashire, 5 T. R. 60. By Devisee of Leasehold Interest. A devisee of leasehold interest must prove : 1. The execution of the lease by the lessor, or if the testator M'as an assignee, the exe- cution of the lease and the assignment to him: 2d. The probate of the will ; and, 3. The assent of the executor to the bequest. By the assent the term is vested in the devisee from the death of the testator. Saunders's case, 6 Rep. 12, h. Doe v. Grey, 3 East, 120. A very small matter shall amount to an assent, it being a rightful act. JVoel V. Robinson, 1 Vei'n. 94. By Devisee of Copyhold. A devisee of copyhold premises must prove : 1. The admittance of the testator : 2. The will, and in cases not within stat. 55 Geo. III. c. 192, which dispenses with such surrender, a surrender to the use of the will : 3. His own admittance. Roe v. Hicks, 2 Wils. 15. A will to pass copyholds need not be signed with the same solem- nities as a devise of freehold lands ; a draft of, or instructions for a will, have been held sufficient to direct the uses of a surrender. Ca- rey v. Askew, 2 Br. C. C. 319, Doe v. Da?ivers,.7 East, 299, 324. Admittance.'] Although in ejectment against a stranger, the heir of a copyholder, Doe v. Hellier, 5 T. R. 169, Roe v. Hicks, 2 Wils. 13, or the grantee of the reversion of a copyhold from the lord. Doe V. Loveless, 2 B. and A. 453, need not prove an admittance, yet a devisee, being a purchaser, must prove his admittance. The ad- mittance of tenant for life being the admittance of him in remain- der, Auncelme v. Auncelme, Cro. Jac. 31, a devisee in remainder has only to prove the admittance of the tenant for life, and not his own admittance. The title of a surrenderee is not complete before admittance, which he must prove ; but after admittance, his title has relation to the time of surrender against all persons but the lord ; and he may therefore recover in ejectment upon a demise laid between the time of the surrender and admittance, provided the admittance be before the trial. Holdfast v. Clapham, 1 T. R, 600, Doe V. Hall, 16 East, 208. The surrender and admittance may be proved by the orighial entries on the court-rolls of the ma- nor, or by copies of the court-roils of the admittance and surrender properly stamped, Doe v. Hall, 16 East, 208, with evidence of the identity of the parties admitted. Doe,v. Smith, 1 Camph. 197, and see Doe v. Callaway, 6 B, and C. 484," ante, p. 59. » 13 Eng. Com. Law Reps. 238. 348 Ejectment. — By Mortgagee. By Mortgagee. If the action be brought against the mortgagor in possession, the mortgagee has onlv to prove the execution of the mortgage- deed, and a demand of possession is unnecessary. Doe v. Maisey, 8 B. and C. 707," Doe v. Giles, 5 Bingh. 420,"= ante, p. 66 ; but if a third person is in possession, the plaintiff must show a title to oust him. Thus if he be a tenant from year to year, who came in prior to the mortgage, the lessor of the plaintifFmust prove the tenancy, and a regular notice to quit. Thunder v. Belcher, 3 East, 449 ; but if the tenant came in subsequently to the mortgage, and has not been acknowledged as tenant by the mortgagee, it will be sufficient to show that his interest was created subsequently to the title of the lessor of the plaintiff, without proving any notice to quit. Keech V. Hall, Dougl. 21. By Tenant by Elegit. Tenant by elegit must prove the judgment, the elegit taken out upon it, and the inquisition and return thereupon ; and for this pur- pose an examined copy of the judgment roll, containing the award of elegit, and the return of the inquisition, is sufficient without prov- ing a copy of the elegit and of the inquisition. Ramshotham v. Buchhurst, 2 M. and S. 565. If the sheriff's return do not state that he has set out a moiety by metes and bounds, it is bad, and the objection may be taken at the trial. Masters v. Durrani, 1 B. and A. 40. If a third person be in possession, the lessor of the plaintiff must prove not only his own title, but also that of the debtor under whom he claims. 2 Phill Ev. 252. In ejectment for lands, the lease of which had been taken in execution under afi. fa. against the termor, it was held that the lessor of the plaintiff, who was plaintiff in the former action, and to whom the sheriff had assigned the lease, was bound not only to prove the fi. fa. but also the judgment. Doe v. Smith, Holt, 589,'» 2 Stark. 199,' S. C. But where the lessor of the plaintiff was not the plaintiff in the first ac- tion, it was held sufficient for him, in ejectment against the de- fendant in the first action, to produce the fi. fa. without proving the judgment. Doe v. Murless, M. and S. 110. By Conusee of Statute Merchant or Staple. In ejectment by the conusee of a statute merchant against the conusor, the lessor of the plaintiff must prove the obligation of the conusor ; or in case the oblii^ation has been lost or damaged, a true copy from the roll in the custody of the clerk of recogni- zances, or his deputy, made and signed by him or his deputy, and duly proved ; and in the next place the writ of extent. An exam- ined copy of the writ of capias si laicus does not appear to be '' 15 Eng. Com. Law Reps. 335. • 15 Id. 485. « 3 Id. 189,312. Ejectment. — By Executor. 349 necessary, as it is recited in the writ of extent. If a third person, and not the conusor, be in possession, in addition to these proofs ev- idence must be given of the conusor's title. 2 Phill. Evid. 253. In ejectment by the conusee of a statute staple, he must produce and prove: 1. The bond of the conusor, or in case of its loss or damage, a true copy from the roll in the custody of the clerk of recognizances, or his deputy, made and signed by him or his dep- uty, and duly proved: 2. Thewritof /i7>era/e; but proof of the writ of extent appears not to be necessary, as it is recited in the liber- ate. If a third person be in possession proof of the conusor's title will also be required. 2 Phill. Ev. 254. By Guardian. In ejectment by guardian in socage the lessor of the plaintiff must prove the seisin of the ancestor of the heir, that he has left an heir at law who is under the age of fourteen, and that among the relations to whom the inheritance cannot descend, he himself is the next of blood to such heir. It seems necessary to prove that the heir was under the age of fourteen at the time of the demise laid in the declaration. 2 Phill. Ev. 250. Doe v. Bell, 5 T. R. 471. In ejectment by a guardian appointed by deed or will, according to 12 Car. II. c. 24, s. 8, 9, the title of the deceased father must be proved, the minority of the ward at the time of the demise laid in the declaration, and the due execution of the will or deed. 2 Phill. Ev.251. By Executor or Administrator. In ejectment by an administrator the lessor of the plaintiff must prove, 1. The lease to his intestate ; and, 2. The intestate's death and the letters of administration, or a copy of the entry in the book of acts, Davis v. Williams, 13 East, 232, B. JV. P. 246, ante, p. 60 ; or the certificate of administration granted by the ecclesiastical court. Kempton v. Cross, Rep. temp. Hardiv. 108. Administration when granted relates back, as it seems, to the intestate's death. Com. Dig. Administration {B. 10) ; but see post, "In Trover." And the lessor of the plaintiff may therefore recover on a demise laid between the time of the intestate's death and the grant of admin- istration. An executor must prove the lease to his testator and produce the probate. The term is vested in the executor from the death of the testator, and the executor may therefore recover on a demise laid between the time of the testator's death and of the probate. Com. Dig. Administration {B. 10). 350 Compelmcy of Witnesses. By Parson. In ejectment by a parson for the recovery of the parsonage- house, glebe, or tithes, he must show his title by proving liis pre- sentation, institution, and induction, which is sufficient without proof of title in the patron. Heath v. Pnjn, 1 Vent. 14, B. J\'. P. 105. If the presentation was by parol, it may be proved by a person who was present and heard it' R. v. Erisicell, 3 T. R. 723, 2 Phill. Ev. 256. But a presentation by a corporation must be in writing under the common seal. Gib. Codex, 704. The institution may be proved by the letters testimonial of institution, or by the ofHcial entry in the public registry of the diocese, which ought regularly to record the time of the institution, and on whose presentation, ibid. 813, in which case it would seem to be evidence of the presentation as well as of the institution. 2 Phill. Ev. 257. So the letters of institution of a party, reciting the cession of his predecessor, followed by in- duction, are sufficient evidence of the cession. Doe v. Carter, 1 R. andj\l. 238. The induction may be proved, either by some person who was present at the ceremony, or by the indorsement on the archdeacon, or by the return to the mandate, if a return has been made. 2 PhilL Ev. 257. Chapman v. Beard, 3 Anst. 942. The les- sor of the plaintitTwill not be required to prove that he has taken the requisite oaths, or declared his assent to the book of common prayer, according to the act of uniformity. Powell v. Millbank, 2 W. Bl. 851, 3 East, 199. Some evidence must be given that the property to be recovered is church property, as that the premises were occupied by a former incumbent, &c. 2 Phill. Ev. 258. Competency of Witnesses. The tenant in possession is not a competent witness to support his landlord's title, Doe v. Williams, Cowp. 621 ; and where the lessor of the plaintiff has proved a prima facie possession in the defendant, a third person will not be allowed to prove that he is himself tenant in possession. Doe v. Wilde, 5 Taunt. ISS,*" Doe v. Bingham, 4 B. and A. 672.' Where both parties claim as lessees under the person who is produced as a witness, and the question is, whether he demised lirst to the lessor of the plaintiff or to the de- fendant ; if the leases were granted without reservation of rent, he will, as it seems, be a competent witness ; but if the contending parties are to pay rent in different rights, he will not be allowed to prove either lease. Fox v. Sioann, Stijles, 482. Bell v. Harwood, 3 T. R. 310. An heir apparent is a good witness in ejectment for the land, but not so a remainderman, for he has a present interest in the land. Smith v. Blachham, 1 Salk. 283. Doe v. Tyler, 6 Bingh. ' 1 Eng. Com. Law Reps. 03. f 6 Id. 5G0. Ejectment. — Defence. 351 390.S An executor who takes a pecuniary interest under a will is competent to support it, for the verdict will only have the effect of establishing the will as to the real property. Doe v. Teague, 5 B. and C. SSS," So a grantee who is a bare trustee is competent to prove the execution of a deed to himself. Goss v. Traceij, 1 P. Wms. 287, 290 ; see ante, p. 85. Where a witness on the voir dire stated that the lessor of the plaintiff had formerly assigned to him the premises in question for a particular purpose, but that he had given up the deed to the lessor of the plaintiff, and had never had possession, he was held incompetent. Doe v. Bragg, R. and M. 87. Defence. The defendant, by way of defence, may show the title in him- self or a third person, or that the lessor of the plaintifi'has no right of entry. Thus he may prove the creation and existence of an outstanding term, though vested in a trustee for the lessor of the plaintiff, unless the circumstances are such that a surrender can be presumed, a7ite, p. 325. The entry of the lessor of the plaintiff may be taken away by the statute of limitations, by disseisin and descent, or by discontinuance. Where a party defends an ejectment as landlord, and ihe occu- piers of the premises have suffered judgment by default, he can- not object that the occupiers have not received notice to quit from the lessors of the plaintiff Doe v. Creed, 5 Bingh. 327.' Entry barred by the statute of limitations.'] In order to render the statute of hmitations a bar in ejectment, the defendant must prove an adverse possession for twenty years. There is no adverse possession in the following cases: 1. Where the possession of the party in possession is the possession of the lessor of the plaintiff, as where a younger son enters by abatement on the death of his father, and dies seised, this possession is not adverse to the title of his elder brother. Co. Litt. 243, a. So the possession of one co- parcener, jointenant, or tenant in common, is not adverse to the title of his co-tenant. Fo?y/ v. Grey, 6 Mod. 44. See Doe v. Halse, 3 B. and C. 757 ;" unless there has been an actual ouster, ante p. 329. 2. There is no adverse possession where the estate of the party in possession, and that of the lessor of the plaintiff, form parts of one and the same estate. Thus the possession of the par- ticular tenant is never adverse to the title of him in remainder or reversion. Taylor v. Horde, 1 Burr. GO. Fisher v. Prosser, Coivp. 218. See also Doe v. Brighlwen, 10 East, 583. Where the rela- tion of landlord and tenant can be implied, the statute will not run, Roe v. Ferrars, 2 B. and P. 542 ; nor where the party in » 19 Eng. Com. Law Reps. in. Mild. 248. i 15 Id. 4.59. "10^.224. 352 Ejectment. — Defence. possession is tenant at sufferance. Doe v. Hull, 2 D. and R. 38.* 3. There is no adverse possession where the relation of trustee and cestui que trust subsists between the parties. Keene U. Deardon, 8 East, 248. Where interest has been paid upon a mortgage, it will prevent the statute from running against the mortgagee, though he has been out of possession for more than twenty years, for the payment of interest is conclusive evidence of a continuing tenancy between the mortgagor and mortgagee. Hatcher v. Fineux, 1 Ld. Raym. 740. Hall V. Doe, 5 B. and A. G»0.™ If a cottage be built on the lord's waste in defiance of him, twenty years undisturbed possession of such cottage, will be a bar to the lord ; but if built at first with the lord's permission, or if any acknowledgment have been since made, the statute will not run. Thus where the defendant had inclosed a small piece of waste land by the side of a highway, and had occupied it for thirty years without paying any rent, but at the expiration of that time, the owner of the adjoining land demanded Qd. rent, which the de- fendant paid on three several occasions, it was held that these pay- ments, in the absence of other evidence, \vere conclusive to show that the defendant's occupation began by permission, and that the owner of the adjoining land was entitled to recover. Doe v. Wil- kinson, 3 B. and C. 413.° In a similar case, after a possession of upwards of twenty years, the lord demanded and obtained posses- sion, which was reluctantly given ; and the occupier was told, that if he resumed possession, it would only be during pleasure. He did resume possession, and remained in for fifteen years more ; and though he never paid any rent, it was held that this was not ne- cessarily an adverse possession, but might be presumed to have commenced with the lord's permission. Doe v. Clark, 8 B. and C. 717.° It appears not to be decided whether twenty years' posses- sion of premises, which a tenant has gained by encroachment on the lord's waste, will be a bar in an ejectment brought for such pre- mises by his lessor, after the Expiration of the tenancy. Penryn B., and Heath and Duller, justices, are said to have ruled that the lessor was entitled to recover ; see Doe v. Davies, 1 Esp. 461 ; and Graham B., ruled the same way, Bryan v. Winxvood, 1 Taunt. 208 ; while Lord Kenyon has laid it down as clear law, that if a tenant inclose part of a waste, and is in possession thereof so long as to acquire a possessory right to it, such inclosure does not belong to the landlord ; but if the tenant has acknowledged that he held such inclosed part of his landlord, this would make a difference. Doe V. Mulliner, 1 Esj). 460. Thompson B., also inclined to the same opinion, but refused to non-suit the landlord, out of deference to the authorities cited for the plaintiff Doe v. Davies, 1 Esp. 461 ; and see Attorney Gen. v. Fullerton, 2 Ves. and Beames, 263. When the statute has once begun to run, no subsequent dis- 1 16 Eng. Com. Law Reps. 69. "' 7 Id. 232. » 10 Id. 155. "15 Id 331. Ejectment. — Defence. 353 ability will stop its operation. The saving clause only extends to the persons to whom the right /F?'5i descends. Doe v. Jones, 4 T. R. 310. It was held in Doe v. Jesson, G East, 80, that the word death in the saving clause of the statute referred to the death of the per- son to whom the right tirst accrued, and who died under disability, and that the heir, though under disability, must enter within ten years from that time, but in a later case the court of C. P. were of opinion that the heir has ten years, after his own disability ceases ; Cotterell v. Dutlon, 4 Taunt. 820 ; which is said to be the construction invariably adopted in practice. Sugd. V. and P. 334. If an estate descends to parceners, one of whom is under a disabi- lity, Avhich continues more than twenty years, and the other does not enter within twenty years, the disability of the one does not pre- serve the title of the other, after the twenty years elapsed. Doe v. Roiclston, 2 Taunt. 441. Right of entry barred by disseisin and descent cast.'\ The de- fendant may prove that the entry of the lessor of the plaintiff is barred by a disseisin, by the peaceable possession of the land for five years next after such disseisin, according to statute, 32 H. VIII. c. 33, and by a descent cast. He must prove a wrongful ouster of the party, by entry, and expressly claiming the freehold, or taking the profits. Anon. 1 Salk. 246. He must prove such an act that an intention to disseise may be inferred from it. Blimden v. Baugh, Cro. Car. 304. Jerrett v. Wearc, 3 Price, 575. Williains v. Thomas, 12 East, 141. There arc many cases in which a descent cast will not toll an entry, as in case of incorporeal hereditaments. Co. Litt. 237, a. So where the ancestor and heir are not seised of the same estate. Ibid. 238, b. Escheat and succession have not the effect of a descent. Ibid. 239, b. 250, a. The entry is not tolled where the descent is not immediate, as where a tenancy by the curtesy intervenes. Litt. s. 394. So where the descent has been avoided, as by the seisin of a dowress. Ibid. s. 393. So where the party who has the right was an infant at the time of the descent, ibid. s. 402 ; or a feme convert, ibid. s. 403 ; or noji compos, ibid. s. 405 ; nor is it tolled in the case of a devisee ; Co. Litt. 240, b ; nor in case of a condition broken, ibid. 339, b; nor is the entry of tenant for years, Lilt. s. 411 ; or other person having a chattel interest; Co. Litt. 249, a; tolled by a descent cast. Right of entry barred by discontinuance.'] If the action is brought by tenant in tail, or by one in remainder or reversion after an estate tail, the defendant may show that the estate tail has been discon- tinued, which has the effect of taking away the entry of the tenant in tail, remainderman or reversioner. Co. Litt. 323, a. In order to prove a discontinuance the defendant must shovv that the party dis- 45 351 Replevin. continuing, was tenant in tail in possession. Litt. s. 658, Doe v. Jo7ics, 1 B. and C. 238.P He must then prove in the usual man- ner the instrument by which the discontinuance wfts created, whe- ther a feotfment, fine, common recovery, or release or contirmation with warranty. Co. Litt. 325, a. Execution. By stat. 1 W. 4, c. 70, s. 38, the judge is authorised in all cases of trials of ejectments, where the verdict shall pass for the plaintitT, or he shall be non-suited for want of the defendant's appearance to confess lease, entry, and ouster, to certify on the back of the record that a writ of possession ought to issue immediately, and such writ shall thereupon issue. REPLEVIN. The evidence in the action of replevin varies according to the nature of the issue joined. In some cases the defendant is allowed by statute to plead not guilty, or, in a general form, that the matter complained of was done under the authority of an act of parliament, and to give the special matter in evidence under such plea ; as by 43 Eliz. c. 2, s. 19, in the case of poor-rates, and by 23 Hen. VIII. c. 5, s. 11, in the case of sewers' rates. 1 Saund. 347, c {n). Evidence on non cspit^ The place in which the goods are al- leged in the declaration to have been taken is material and traver- sable. Weston V. Cartel', 1 Sid. 10. And the plea of r?on cepit, that the defendant did not take the cattle, &c., is termed the general issue in replevin. It lies upon the plaintiff to prove this issue, and if found for the defendant it merely excuses him from damages, but does not entitle him to a return. It is sufficient for the plaintiff upon this issue to show that the defendant had the goods in his pos- session in the place in which, &c., for the wrongful taking is con- tinued in every place in which he afterwards detains them. Walton V. Kersop, 2 Wils. 354. If in fact the defendant neither took the cattle in the place named, nor had them there afterwards, he should plead cepit in alio loco, and entitle himself to a return by adding an avowry or cognizance, which in that case is not traversable. Anon. 1 Vent. 121, B. JV. P. 54. Avmvry.'l The defendant usually avows or makes cognizance, in order to obtain a return of the goods, to which avowry or cogni- zance the plaintiffpleads in bar. The proofs under the most usual pleas in bar will be stated. » 8 Eng. Com. I^aw Reps. 63. Replevin. 355 Where the distress has been for rent, it is enacted by 17 Car. IL c. 7, s. 2, that in case the plaintiff shall be non-suited after cog- nizance, or avowry made, and issue joined, or if a verdict shall be given against the plaintiff, then the jurors who were empanelled or returned to inquire of such issue, shall at the prayer of the defend- ant inquire concerning the sum of the arrears, and the value of the goods or cattle distrained ; and thereupon the avowant, or he that makes cognizance, shall have judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, &c. The avowant, ther£fore, must be prepared to prove both the amount of the rent in arrear and the value of the goods or cattle taken, and the omission of this inquiry cannot be supplied by a writ of inquiry; Sheape v. Culpepper, 1 Lev. 255, 1 Saund. 195, b (n); though the defendant may have the common law judgment for a return. Rees v. Morgan, 3 T. R. 349. If the defendant avows for rent and that the goods were frandu- lently removed, &c., under 11 Geo. II., and the plaintiff pleads in bar no fraudulent removal, the defendant must show that there was no sufficient distress on the premises. Parrey v. Duncan, 1 M.andM. MSS. Evidence on plea of nan demisit or non tenuity To an avowry for rent-arrear, the piaintiflfusually pleads non demisit ot non tenuit, upon which issue the defendant nmst prove the demise as stated in his avowry. He must prove a demise, and therefore if he only shows an agreement for a lease, it is insufficient. Dunk v. Hunter, 5 B. and A. 322.'* But though the plaintiff enters upon the land under an agreement for a lease, in which the amount of the rent is not stated, yet if he occupies and pays rent, he becomes tenant from year to year at that rent, and an avowry, stating the terms of the tenancy accordingly, will be sufficient. Knight v. Bennet, 3 Bingh. 361." So if, entering under such an agreement he acknow- leges half a year's rent to be due. Cox v. Bent, 5 Bingh. 185/ supra; and see Saunders v. Musgrove, 6 B. and C 524.* The terms of the tenancy must be proved as laid, and therefore if the rent reserved was higher than the rent stated, it is a fatal vari- ance, for the contract must be truly stated. Brown v. Sayce, 4 Taunt. 320. But where the defendant avowed for taking growing corn in four closes, and stated that the plaintiff held the closes in which, &.C., at a certain yearly rent, and it appeared that he also held two other closes at that rent, this was decided to be no vari- ance, for every part of the land was liable to the whole rent. Hargrave v. Sheicin, G B. and C. 34," 9 D. and R. 20, S. C. ; and see Page v. Chuck, 10 B. Moore, 2G4,' Philpott v. Dobhinson, 6 Bingh. 104.*' The defendant cannot under an avowry for double 1 7 Eng. Com. Law Reps. 115. ' 13 Id. f?. • 15 Idi 410. ' 13 Id. 243. " 13 Id. 102. ' 17 Id. 142. ^ 19 Id. Ifi. 356 Replevin. rent under the statute 11 Geo. II. c. 19, s. 18, recover any single rent. Johnstone v. llnddksion, 4 B. and C. 938.'' As the plea ohiil Itahuit in tencmeutis is a bad plea to an avow- ry lor rent arroar, Syllimn v. Slradiing,2 IVih. 208, the plaintiiFis not allowed to give in evidence under non demisit, or tenuity any matter amounting to nil hahuit in tcnementis, not even though the title of the avowant he founded in i'raud, Parry v. House, Holt, 489,' for a tenant shall not be allowed to dispute the title of his landlord, ante, p. 14-3. But Vvhcrc the plaintitf come in under ano- ther person and not under the defendant, but had paid rent to the defendant in ignorance of a defect in his title, the Court of Com- mon Pleas held that the plaintili" might show the want of title in the defendant. liogers v. Pitcher, G Taunt. 209.'- Gregory v. Doidge, 3 Bingh. 474." So under the plea of non tenuit the plain- tili' may show that the defendant's title expired before the rent be- came due, Gravsnorv. IVoodJiouse, 1 Bingh. '38,'^ and he may show his landlord's title expired, though he has paid rent to him after such expiration, provided the rent was paid in ignorance of the landlord's title. Fcnner v. Dnplocl; 2 Bingh. 10."=" Land belong- ing to a parish was occupied by A., who paid rent to the church- wardens. Tlie latter executed a lease of the land for a term of years to B., and gave A. notice of the lease. It was held that A. was not estopped by having paid rent to the church-wardens from disputing B.'s title, and that the latter could not derive a valid title from the churchwardens. Phillips v. Pearce, 6 B. and C. 433,'' 8 D. and R. 43, .S'. C. It is no variance under non tenuit if it appear that the plaintiif held for a less time than that stated in the avow- ry. Forty V. Imber, 6 East, 434. Evidence on plea, in bar qf ricns in arrear.'\ The plea in bar of riens in aYrear, which lies upon the plaintiff, admits the demise as stated in the avowry. Therefore, where to an avowry for rent due upon a cjuarterhj holding, the plaintiff pleads riens in arrear, he cannot show that the holding is half-yearly, and that consequently no rent had accrued, though one of the quarters had elapsed. Hill V. Wright, 2 Esp. 669. It will not be sufficient to support this plea to show ihnt part of the rent has been satisfied, for the defendant will be entitled to a verdict if it appear that any part of the rent is in arrear, Cobb v. Bryan, 3 B. and P. 348. The plaintitFmay, as it seems, under this plea, show that he has paid the rent to a supe- rior landlord under threat of a distress, for such payment seems to be in law a payment to the immediate landlord, so as to leave no rent in arrear. Taylor v. Zamira, 6 Taunt. 524.'' Sapsford v. Fletcher, 4 T. B. .513, where the defence was .specially pleaded. But see 2 Phill. Ev. 180. The payment is no less compulsory though the ground-landlord has allowed the occupier time to pay. xlOEngr. Com. Law Reps. 471. y.Tld. 167. ' 1 Id. 355. > 13 Id. 58. t a Id. 235. ' 9 Id. 294. ^ 1 1 Id. 264. • 1 Id. 472. Replevin. 357 Carter v. Carter, 5 Bingh. 406/ So where a demand in respect of interest on a mortasje affecting the premises is paid with the defen- dant's assent, the plaintiff may avail himself of the payment under this plea. Dyer v. Bmdey, 2 Bingh. 94 ;? and see Popey. Biggs, 9 B. and C. 245." Where the plaintiff pleads rton temdt and riens in arrear, and the first issue is found for him, the second issue be- comes immaterial, and the proper course is to discharge the jury from finding any verdict upon it. Cossey v. Diggons, 2 B. and A. 546. Evidence on traverse of being bailiff.'] If the plaintiff traverses that the defendant is bailiff, as stated in the cognizance, the defen- dant must prove his authority to make the distress, and a recogni- tion of this act will be equivalent to a previous command. Trevil- lian V. Pine, 11 Mod. 112. 1 Saund. 347, d (n). One jointenant or coparcener has an authority in law without any express command, to distrain as bailiff of his co-tenant. Leigh v. Shepherd, 2 B. and B. 466.' Evidence ichere the defendant avoivs taking the cattle damage feasant.] Where the defendant avows taking the cattle damage feasant, he may plead that the locus in quo is his soil and freehold, which the plaintiff may deny, and the evidence in such case will be the same as under the plea of liberum tenementum in trespass quai-e clausum f regit. Vide post. So the plaintiff may plead in bar defect of fences, which the defendant was bound to repair, whereby the cattle escaped ; a right of common way, &c. So the plaintiff may plead tender of amends before the distress, which makes the taking wrongful. Com. Dig. Pleader, (3 K. 23). Evidence on plea of tender.] To an avov/ry for rent the plain- tiff may plead a tender of the rent: to an avowry for damage fea- sant a tender of amends. A tender before distress makes the tak- ing unlawful : after distress, and before impounding, the detention unlawful. Six carpenters case, 8 Rep. 146, b. Although it has been held that a tender of amends to a mere bailiff is not good ; Pilkington's case, 5 Rep. 76. 1 Broiail. 173 ; yet if the bailiff is the avowant's usual receiver, or if it appear from other circumstances that he is his agent for that purpose, the tender to him is good. Gilb. Rep. 89, Browne v. Poivell, 4 Bingh. 230." But a tender to him is bad if the avowant is present; Gilb. Rep. 89; and so is a tender to one deputed by the bailiff, Piynm v. Grevill, 6 Esp: 95. Competency of witnesses. The declarations of a person under whom the defendant makes cognizance, are not, it has been ruled, evidence for the plaintiff » 15 Eng. Com. Law Reps. 479. eOId. 323. M 7 Id. 368. * 6 Id. ;203. k 13 Id. 410. S.'JS Replevin. Hart V. Horn, 2 Campb. 92; but see ante, p. 28. But such decla- rations should seem to be evidence, for if such person sliould be produced as a witness for the defendant making cognizance, he would be incompetent. Golding v. .N'ias, 5 Esp. 273. Thus in re- plevin by an under-tenant against the superior landlord who dis- trains as bailill" of his immediate tenant, ti)e latter is not a compe- tent witness to prove the amount of rent due from the under-ten- ant. Upton V. Curtis, 1 Bingh. 210.' 8 B. Moore, 52, S. C. The sureties in (he replevin bond are incompetent witnesses for the plaintilT! Bailey v. Bailey, 1 Bingh. 92.'" The defendant avowed that the plaintiff and one J. B. held the locus in quo as tenants to the defendant, &,c. upon which issue was joined. At the trial some evidence was given by the defendant that the plaintilf and J. B. were in possession of the premises in question, and also that a lease had been executed to them by de- fendant's ancestor, which the plaintilf and J. B. had paid for, but had refused to execute. It was not proved that J. B. was so con- nected with the plaintiif, as to the premises in question, as to be jointly liable for the rent; nor w^as it shown that the goods distrain- ed were the joint property of the plaintiff and J. B. The plaintiff tendered J. B. as a witness, who was rejected without being exam- ined on the voir dire as to his liability to the rent. It was held that he was not an incompetent witness until that fact was estab- lished, and that he had been improperly rejected. Bunter v. War- re, 1 B. and C. G89.° TRESPASS FOR CRIM. CON. In an action of trespass for criminal conversation, the plaintiff must prove, 1. His marriage, and 2. The fact of adultery. It is usual also to give evidence of circumstances in aggravation. Evidence of ynarriage.'] In this action the plaintiff is held to strict proof of his marriage, and proof of cohabitation and reputa- tion is insufficient. Morris v. Miller, 4 Burr. 2057. Birt v. Barlow, Dougl. 170. B, JV. P. 27. Even the admission of the defendant has been held to be insufficient, as where being surprised at a lodging with the wife of the plaintiff, Major Morris, and being asked where Major Morris's wife was, he replied, " In the next room," for it was only a confession that she went by the name of Major Mor- ris's wife. Morris v. Miller, B. JV. P. 28, 4 Burr. 2057. This de- cision, however, does not warrant the conclusion that a distinct and full acknowledgment of the marriage made by the defendant hiniself will not be evidence as against him, and sufficient to dispense with the more formal and strict proof of marriage, ' 8 Eng. Com. Law Reps. 299. ■" 8 Id. 259. " 8 Id. 186. Trespass for Crim. Con, 359 2 Phill. Ev. 201 ; and see Freeman's case, 1 East, P. C. 470. In Rigg V. Curgenven, 2 Wils. 399, where the case of Morris v. Mil- ler was cited, it was said by the court, that if it were proved that the defendant had seriously or solemnly recognised that he knew the woman to be the plaintiff's wife, it would be evidence proper to be left to the jury without proving the marriage. The marriage is usually proved by the production of an examined copy of the register rand it is not necessary in such case to call the attesting witnesses, but some proof of the identity of the parties must be adduced, aiite, pp. 62, 110; and see Hemmings v. Smith, 4 Dougl. 29. So it may be proved by calling a person who was present at the marriage, without proving the registration or license, or banns, ante, p. 62, though evidence of non-publication of banns may be given by the defendant, vide post. If the marriage has taken place under stat. 26 Geo. II. c. 33, s. 1, in a public chapel in which banns have been usually published, the plaintiff must prove that it was a chapel in which banns had been usually published at the time of the passing of the marriage- act, 26 Geo. II. See R. v. Xorihjield, Doug. 658. And where a register of marriages going back to the year 1578, and a register of the publication of banns from the year 1754 (when the marriage act passed), were produced from the chapel royal in the Tower, Lord Ellenborough held that there was sufficient evidence upon which to found a presumption that banns had usually been published, be- fore the marriage act, in that chapel. Taunton v. Wyborn, 2 Campb. 297. Marriages in chapels erected and consecrated since the 26 Geo. III. have been rendered valid by various retrospective statutes. See 21 Geo. III. c. 53, 44 Geo. III. c. 7 7, 48 Geo. III. c. 127, and 6 Geo. IV. c. 92. And by these statutes the registers, or copies of the registers of such marriages, are to be received in evi- dence. By 6 Geo. IV. c. 92, s. 2, it shall be lawful for marriages to be in future solemnized in all churches and chapels erected since the passing of 26 Geo. II. and consecrated, in which churches and chapels it has been customary and usual, before the passing of that act (6 Geo, IV.) to solemnize marriages, and the registers of such marriages, or copies thereof, are declared to be evidence. By stat. 4 G. IV. c. 76, s. 2, (after 1 I^Jov. 1823,) " All banns of matri- mony shall be published in an audible manner in the parish church, or in some public chapel, in which chapel banns of matrimony may now or may hereafter be lawfully published, of or belonging to such parish or chapelry wherein the persons to be married shall dwell ; and by sec. 3, the bishop of the diocese, with the consent of the patron and the incumbent of the church of the parish in which any public chapel, having a chapelry thereunto annexed, may be situated, or of any chapel situated in an extra-parochial 3G0 Trespass for Crini. Con. place, signilicd to him under their hands and seals respectively, may authorise, by writing under lii.s hand and seal, the publication of banns, and the solemnization of marriages in such chapels, for persons residing in such chapelry or extra-parochial place ; and such consent, together with sucli written authority, shall be regis- tered in the registry of the diocese." The marriage acts of 20 Geo. 111. c. 33, and 4 Geo. IV. c. 70, do not extend to the marriages oi Jens and Quakers, such marriages being expressly excepted, and they may therefore be proved in the same manner as marriages were proved before the passing of those acts. In order to prove a Jewish marriage two witnesses were called, who swore that they were present at the marriage in the synagogue ; but upon an objection made, that what took place at the synagogue was merely a ratification of a previous written con- tract, and that as that contract was essential to the validity of the marriage, it ought to be produced and proved, the contract was put in. Horn v. Noel, 1 Camph. 6]. As to the form of this con- tract, see Linda v. Belisario, 1 Hagg. Consist. Rep. 225. 247. app. p. 9, see also Goldsmid v. Bromer, J Hagg. Consist. Rep. 324. If the plaintitr is a Quaker, the marriage must be proved to have taken place according to the ceremonies of that sect. 1 Hagg. Consist. Rep. appendix, p. 9 (n). Deane v. Thomas, 1 M. and M. 361. As to the marriages of other dissenters, there is no exception in the marriage acts ; and though before those acts it seems to have been sufficient to prove a marriage according to their particular ceremonies, see WooJston v. Scott, B. JV. P. 28, such proof is now in- insufficient. See 1 Hagg. Consist. Rep. appendix, 8 (n). The marriage acts do not extend to marriages abioad, and a marriage celebrated abroad according to the law of the foreign state, is recognised in this country as a valid marriage. Therefore a marriage in Scotland, between English subjects, according to the Scotch law, is good in our courts. Daln/mple v. Dalrymple, 2 Hagg. Consist. Rep. 54. Harford v. Morris, Id. 430. Where two persons in the island of St. Domingo, being desirous of intermarrying, went to a chapel where the service was read in French, by a person ha- bited as a priest, and interpreted into English by the officiating clerk, which service the parties understood to be the marriage ser- vice of the Church of England, and they received a certificate of the marriage, which had been lost, this evidence w^as held (no proof being given of the laws or usage respecting the marriage rital in that island) to afford a presumption that the marriage had been duly celebrated according to the law of St. Domingo, particu- larly after eleven years' cohabitation as man and wife. R. v. Brampton, 10 East, 282. So a marriage in Ireland by a dissenting minister, in a private room, has been held good. R. v. , Old Bailey, coram Sir J. Silvester, 1 Russ. C. L. 205, 2d ed., Smith v. Maxirell, 1 R. and M. 80. In proving a foreign marriage some Trespass for Crim. Con. 361 evidence must be given of the law of the foreign state ; and it is the practice of the ecclesiastical courts to receive such evidence from professors of the law in question. Lindo v. Belisario, 2 Hagg. Consist. Rep. 248. Middleion v. Janverin, 2 Hagg. Consist. Rep. 441 ; but see Harford v. Morris, 2 Hagg. Consist, iiep. 431. In the case o^ Dalrymple v. Dalrymple, 2 Hagg. Co7isist. hep. 81, the au- thorities upon which the court proceeded were of three classes: 1. The opinions of learned professors given in that or similar cases. 2. The opinions of eminent writers as delivered in books of great legal credit and weight ; and, 3. The certified adjudication of the tribunals of Scotland. Where evidence of the law of Scotland with regard to the legality of a marriage was required, the testi- mony of a witness, who was a tobacconist, was rejected. Anon, cited 10 East, 287. See further as to proof of foreign laws, ante, p. 60. A marriage between British subjects in a British settlement is valid, if it be such a marriage as would have been valid in this country before the passing of the marriage act, 26 Geo. II. Thus a marriage between two British subjects solemnized by a Catholic priest at Madras, and followed by cohabitation, but without the li- cense of the governor, which it had been the uniform custom to ob- tain, is valid. Lautour V. Teesdale, 8 Taiint. 833." So in the case of the Kingv. Brampton, supra. Lord Ellenborough was of opinion that as the parties had accompanied the King's forces to St. Do- mingo, they might be considered to have carried with them the law of England, and that therefore the marriage was valid, being ac- cording to the English law independent of the marriage act. So the marriage of English subjects, in the chapel of the Eng- lish embassador abroad, appears to have been valid, see R. v. Brampton, 10 East, 283 ; and now by statute 4 Geo. IV. c. 91, re- citing that it is expedient to relieve the minds o[ his majesty's sub- jects from any. doubt concerning the validity of a marriage solem- nized by a minister of the Church of England, in the chapel or house of any British embassador, or minister, residing within the country to the court of which he is accredited, or in the chapel belonging to any British factory abroad, as well as from any possi- bility of doubt concerning the validity of marriages solemnized vatliin the British lines, by any chaplain, or officer, or other person officiating under the orders of the commanding ofHcer of a British army serving abroad, it is declared and enacted that all such mar- riages shall be deemed and held to be as valid in the law, as if the same had been solemnized within his majesty's dominions, with a due observance of all forms required by law. A marriage between English subjects in a foreign country, not celebrated according to the laws of that country, nor in an embassa- dor's chapel, &c. is invalid. Middleton v. Janverin, 2 Hagg. Consist. »4Enif. Com Law Reps. 299. 46 362 Trespass for Crim. Con. Rep. 437. Scrimshirc v. Scrimshire, id. 395. Lacon v. Iliggins, 2 Stark. 183.^ Proof of the adultcrij.] " It is not necessary to prove the direct fact of adultery. In every case almost the fact is inferred from circumstances that lead to it by fair inference as a necessary con- clusion. What are the circumstances that lead to such a conclu- sion cannot be laid down universally, because they may be infinite- ly diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circum- stances apparently slight and delicate in themselves, but which may liave most important bearings in the particular case. — The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discre- tion of a reasonable and just man to the conclusion." Per Sir W. Scott, Lovedeii v. Loveden, 2 Hagg. Consist. Rep. 2. Where the plaintiff's wife and the defendant travelled together, and the for- mer took a house in Wales, where the defendant used to pass the day and take his meals, but slept at an inn, the Ecclesiastical Court held this cohabitation sufficient evidence of adultery, though there was no proof of other familiarities. Cadogan v. Cadogan, 2 Hagg. 4 (n) ; and see Chambers v. Chambers, 1 Hagg. Con- sist. Rep. 444. Williams v. Williams, Id. 299. Elwes v. Elices, Id. 277. Where the statute of limitations is pleaded, the plaintiff may give evidence of acts of adultery which have taken place more than six years since, with a view to show the nature of the connexion subsisting between the parties within the six years. Duke of A'oj' folk's case, 12 Hoiv. St. Tr. 927. The confes- sion of the wife is not evidence for her husband, but conversations between her and the defendant are evidence against the latter. B. JV.P.2S, ante, p.m. Evidence in aggravation.'] Conversations between the hushand and wife are evidence to show their demeanour and conduct. Tre- lavmey v. Cohnan, 1 B. and A. 91. So letters from the wife to the husband written before suspicion of criminal intercourse. Ante, p. 91. The judgment formed by a witness from the anxiety which the wife had expressed concerning her husband, and from her mode of speaking of him during his absence, is admissible evidence. Tre- lawney v. Coleman, 2 Stark. 192.'^ The wife's declarations as to her intentions in leaving her husband may be given in evidence, as part of the res gestc, to remove a suspicion of connivance on his part. Hoare v. Allen, 3 Esp. 276, ante, p.3\. Proof of a settle- ment and provision for children is admissible as evidence in aggra- vation. B. JV. P. 27. As to evidence of the wife's character, see ante, p. 37. f 14 Eng. Com. Law Reps. 17C. i 3 Id. tJOS. Trespass for Crim. Con. 363 Defence. Evidence to disprove the inarriage.] If the marriage of the plaintiff be irregular and void, the defendant may give evidence to prove that fact. Thus he may show that there was no due publi- cation of banns ; for by 4 Geo. IV. c. 70, s. 22, if any persons shall knowingly and wilfully intermarry without due publication of banns, or license, such marriage sliall be null and void. Under this clause it seems to be sufficient that the banns are published in the known and acknowledged, though not the real names of the parties. Thus where a man whose name was A. L. had resided for three years in the parish in which he was married, under the name of G. S., and was married by banns by such name, the marriage was held valid. R. V. Billinghurst, 3 M. and S. 250. So where the name had been assumed for sixteen weeks, on account of the party having desert- ed from the army. R. v. Burton-upon-Trent, Id. 537. So where a married woman upon the death of her husband assumed her maiden name, and after the lapse of several years was married by banns to a second husband in that name, with the description of widow, it was held, in the absence of fraud, that such marriage was legal. R. V. St. Faith's, JVewton, 3 D. and R. 348.^ But where the banns have been published in the wrong names of the parties, and there is no evidence to show that they have ever been known by such names, the marriage is void. Mather v. Key in the Consistory Court, 3 M. and S. 265 ; see also Stanhope v. Baldwin, 1 Addams, 93,* Gree7i v. Dalton, Id. 289.* So where a wrong name is fraudulently assumed for the purposes of the marriage. Frankland v. Nicholson, in the Consistory Court, 3 M. and S. 259 ; see also Felloioes v. Stewart, 2 Phillim. 257," Meddowcroft v. Gregory, Id. 365,^ Bayard v. Mor- phew. Id. 321,''' Pougett v. Tomkyns, 3 M and S. 264. By 4 Geo. IV. c. 76, s. 26, it shall not be necessary, in support of a marriage, to give any evidence of the residence of the parties, as directed in that act, nor shall any evidence be received to prove the contrary. Evidence that the parties lived separate.'] Whether proof that at the time of the adultery the husband and wife were living sepa- rate by consent furnishes a defence in this action, does not appear to be clearly settled. In Weedon v. Timhrell, 1 Esp. 16, 5 T. R. 357, S. C, where it appeared that the husband, having some sus- picion of his wife's misconduct, had taken a lodging for her, for which and for her board he paid, and that at the same time when the adultery was committed, they were living in a state of separa- tion, Lord Kenyon ruled that the action could not be maintained, and the court refused to set aside the nonsuit. So in Barlelot v. '16 Eng. Com. Law Reps. 171. •2Eng. Eccles. Reps. /1'2. '2 id. 121. » 1 Id. 250. ' 1 Id. 279. " I Id. 273. 3(34 Trespass for Crim. Con. JJawker, Pcahe, 7, where the husbantl and wife had been separated by articles, Lord Kcnyon said, that if the parties were separated by mutual consent at the time, he was of opinion that the husband could not maintain this action, for it was impossible to receive any injury by losing the society of a wife whom he had already aban- doned ; but on proof of an :ict of aduKcry before the separation, the jury found a verdict for the plaintill! But in a subsequent case, where the defence was that the parties were living under articles of separation at the time, Lord Kenyon said that it was a question that he had entertained considerable doubts upon, but that he was inclined to sufler tiie cause to proceed, and take a note of the ob- jection, that it might be brought before the court. Hodges v. Wind- ham, Peahc, 39. And in a still more recent case, where the hus- band and wife had separated under articles, and the wife was Uv- ing apart from her husband, thougli not in pursuance of the terms of the articles. Lord Ellenborough observed that he did not consi- der the question, whether the mere fact of separation between husband and wife by deed was such an absolute renunciation of his marital rights, as prevented the husband from maintaining' an ac- tion for the seduction of his wife, as concluded by the decision in Wlieedon v. TimhreJI, Chayjihers v. CauJfeld, 6 East, 248. In the latter case it was held, that as the wife was not living apart from her husband with the consent of the trustees in the deed, she was not living apart from him with his consent, and that therefore the plain- tiff's right to recover was not aifected by the deed. Where the separation is not with a view of renouncing the marital character, as where the husband and wife are living as servants in different families, the action mav be maintained. Edwards v. Crock, 4 Esp. 39. ' Evidence of the jilaintiffs misconduct in lar.'] If a woman be suffered to live as a prostitute with the privity of her husband, and a man is thereby drawn into adultery with her, Lord Mansfield laid it down as clear law, that the action will not lie. Smith v. Allison, B. JV. P. 27. Hodges v. Windham, Peahc, 39. But unless with the husband's privity it will not go to the action, let her be ever so profligate, but only to the damages. B. N. P. 27. If the plaintiff was consenting (o the adultery of his wife, he cannot recover. Honard v. Burtomcood, 1 Selw. JVC P. 10. Duherley v. Gunning, 4 T. R. G5G. Hoare v. Allen, Sehv. M P. U (n), 3 Esp. 276. Where, after marriage, the husband has openly violated those rules of conduct which decency requires and affection exacts from him ; if he has openly practised his gallantries without regard to his wife, and violated the marriage bed, so as to create disgust or unhappiness in his wife, he cannot maintain this action. Per Lord Kcnyon, Sivrt v. Marquis of Bland ford, cited 4 Esp. 17. Wyndham v. Ld. V/y combe, 4 Esp. 16. But in a subsequent case, Trespass for Seduction. 36/> Ld. Alvanley said, that though he was aware that Ld. Kenyon had laid down a different doctrine, he was of opinion that the infidel- ity or misconduct of the husband could never be set up as a legal defence to the adultery of the wife, but that it went in mitigation of damages only. Bromley v. Wallace, 4 Esp. 237. Evidence in mitigation of damages.'] Proof of the husband's bad conduct, as that he lived in a criminal connexion with other women, is properly evidence in mitigation of damages. B. JV. P. 27, Bromley v. IVaUace, 4 Esp. 237. So that he had turned his wife out of the house, and refused to maintain her. B. JV. P. 27. So for the same purpose the defendant may give evidence of the wanton manners of the wife, and that the first advances were made by her to him. Gardener v. Jadis, 1 Selw. J\'. P. 25. So that the wife has committed adultery with others, or had a bastard before marriage. Roberts i\ Malston, B. JV. P. 296, Though evidence of loose conduct or criminality with others, before the commission of the fact complained of, is admissible in mitigation of damages, yet acts of subsequent misconduct are not. Per Lord Kenyon, Elsam V. Faucett, 2 JEsp. 562. Although in general the letters of the wife to the defendant are not evidence for him. Baker v. J^Iorley, B. JV. P. 28, yet where they had been written before the time, when the criminal facts were proved to have been committed. Lord Kenyon admitted them, the object being to show that the defendant had been solicited by the wife. Elsam v. Faucett, 2 Esp. 562. TRESPASS FOR SEDUCTION. In an action for seduction, the plaintiff must prove, 1. That the party seduced was, in contemplation of law, his servant ; and, 2, the seduction. Evidence of the service.] Although this action cannot be main- tained without some proof of the daughter's service, or liability to service ; and it is not sufficient merely to show that the plaintiff has incurred an expense in consequence of her confinement, Satterthwaite v. Duerst, 5 East, 47 {n), 4 Dongl. S. C, Postlethwaite V. Parhes, 3 Burr. 1878, Bennett v. Alcott, 2 7'. R. 168, see 4 B. and C. 662;^ yet it is not necessary to prove an actual contract of ser- vice, or that v/ages have been paid, but the slightest evidence of service, such as milking cows, has been held sufficient Bennet v. Alcott, 2 T. R. 168. Even making tea has been said to be an act of service. Per Abbott, C. J., Carr v. Clarke, 2 Ckitiy, 2Q\,^ see also Manvell v. Thompson, 2 C. and P. 303,* J\Jann v. Barrett, 6 Esp. 32. Though, to a degree, the relation of master and servant » 10 Eng. Com. Law Reps. 438. r 18 Id. 328. « 12 Id. 136. 366 Trespass for Seduction. must subsist, yet a very slight relation is sufficient, as it has been determined, that when the daughters of the highest and most opu- lent families have been seduced, the parent may maintain an action on the supposed relation of master and servant, though every one must know that such a child cannot be treated as a menial servant. Per Lord Kenijon, Fores v. Wilson, Peahe, 55. So it lias been ruled by Littkdalc, J., that the proof of any acts of service is un- necessary, and that it is sufficient that she is living with her f^ither, forming part of his family, and liable to his control and command. Maunder v. Vann, 1 M and M 324, sec R. v. Chillesford, 4 B. and C. 102." The action is maintainable, though the daughter was of age. Booth v. Charlton, cited 5 East, 45, Satterthwaite v. Duerst, Ibid, (n), TnUidge v. Wade, 3 Wils. 18. And where the daughter was a married woman separated from her husband, and living as a servant with her father, it was held that the latter might main- tain this action. Harper v. Lvffkin, 7 B. and C. 387." It must appear that the daughter was residing with her father at the time of the seduction. Thus where she was residing in another person's family in the capacity of housekeeper, though not under any contract for wages, and though she might have left when she pleased, it was held that the father could not maintain the action, for the daughter had no animus revertendi. Dean v. Peel, 5 East, 45, Car v. Clarke, 2 Chittij, 260." But if she was merely absent on a visit at the time when she was seduced, the action lies. John- son V. MAdam, cited 5 East, 47. Where the defendant procured the dauo-hter and servant of the plaintiff to leave her father, under- the false pretence of hiring her as his servant, and seduced her, Abbott, C. J. held the action maintainable. Speight v. Oliveira, 2 Stark. 493.* Where the action was brought by the aunt of the party seduced, with whom the latter resided, Perryn, B. held that she stood in loco parentis, and was entitled to recover, though the mother was living. Edmonson v. Machill, 2 T. R.4,n East, 24. So where the plain- tiff, an officer in the army, had adopted the daughter of a deceased soldier, he was held entitled to maintain this action. Irwin v. Dear- man, 11 East, 23. So a master, who is not related to the party seduced, may recover damages against the defendant for debauch- ing her. Fores v. Wilson, Peake, 55. See Hall v. Hollander, 4 B. and C. 6Q3.' Evidence in aggravation.'] In aggravation of damages the plain- tififmay give evidence of the general good conduct of his family, what other children he has, &c. Bedford v. M'Koid, 3 Esj). 119. So the plaintiff may prove that the defendant w^as addressing his daughter as an honourable suitor ; Dodd v. JVorris, 3 Campb. 519, Elliott v. Nicklin, 5 Price, 641 ; but neither in chief nor on cross-examina- » 10 Eng. Com. Law Reps. 279. •> 14 Id. 58. • 18 Id. 328. 8 Eng. Com. Law Rops. 61. "11 Id. 37. 161(1.22. p 13 Id. 61. 374 Trespass for False Imprisonment. Proof of the lmprisonment.'\ The circumstances which will amount in law to an arrest or imprisonment are stated in another place. Vide ante, p. 304, and post ; " Actions against Constables.^' Defence. In actions against justices, constables, churchwardens, etc., the defendants may give any special justification in evidence under the general issue, 21 Jac. 1 c. 12 5. 2 i7ifra. A private individual is not within the above statute, unless he is acting in aid of the con- stable. See Bond v. Rust, 2 C a?id P. 342. ■> And unless he be within the statute, he must plead his justiiication specially, and must prove it as stated. Mere suspicion \vill not justify a private person in apprehending another on a charge of felony, though it is evidence in mitigation of damages under the general issue. Adams V. Moore, 2 Sclw. JV. P. G85, 4t7i Ed. Chinn v. Morris, R. and M. 424, 2 C. and P. 361, ■■ S. C. Coides v. Dunbar, 2 C. and P. 5G8,» and see Bingham v. Gurnault, 1 Esp. Dig. 337. A constable who has reasonable ground for suspecting that a felony has been committed, or is about to be committed, is justified in arresting the party whom he suspects, but in order to justify a private individual in making the arrest, he must not only show a reasonable ground of suspicion, but he must prove that a felony has actually been committed. Beckwith v. Philby, 6 B. and C. 635.* Hedges v. Chapman, 2 Bingh. 523." Stonehouse v. Elliott, 2 T. R. 315, Ex parte Krans, 1 B. and C. 261.^ A private person may imprison another to prevent the commit- ting of a felony. Handcock v. Baker, 2 B. and P. 260. Where the plaintiff was in fact protected from arrest as a privi- ledged person, it is a good defence to show that he did not insist on his privilege. See Pike v. Carter, 3 Bingh. 84." Witnesses. Wherein an action against three persons for false imprisonment, the plaintiff had connected all the defendants as joint trespassers, it was ruled that declarations made by one of the defendants after the imprisonment, and in the absence of the others, were admissi- ble. Wright V. Court, 2 C. and P. 232.'^ Where one person puts a party into the custody of another, what is said and done by that other is evidence against the person placing the party in custody, though said or done in his absence. Per Garrow, B. Powell v. Hodgetts, 2 C. and P. 433.^ But the declarations of one tortfeazor are not evidence for the others. Daniels v. Potter, 1 M. and M. MSS. 1 12 Eng. Com. Law Reps. 160. ' 12 Id. 171. • 12 Id. 264. « 13 Id. 287. • 9 Id. 508. "8 Id. 70. "11 Id. 37. » 12 Id. 104. » 12 Id. 206. Trespass to Personal Properly. 375 TRESPASS TO PERSONAL PROPERTY. The evidence for the plaintiff, in an action of trespass for taking away or injuring personal property, varies according to the nature of the issue joined between the parties. Form of action, trespass or caseJ] In cases of accidents arising in driving carriages, steering ships, &c., questions have frequently arisen as to the proper form of action. The following distinctions may be drawn from the decisions on this subject. See 2 H. B. 442, {n) 4th Ed. 1. Where the injury is both wilful and immediate, as where "a person wilfully rows a boat against nets and destroys them, Tripe V. Potter, cor. Yates J. cited 8 T. R. \Q\, trespass is the only form of remedy. See Ogle v. Barnes, 8 T. R. 192. Moreton v. Hardern, 4 B. and C. 227.^ 2. Where the injury is immediate but not wilful, occurring only by the negligence of the party, as where a man tiring a gun without sufficient caution accidentally hurts another. Weaver v. Ward, Hob. 134. Underwood v. Heirson, 1 Str. 596, or where a person drives on the wrong side of the way in the dark and accidentally injures another carriage, Leame v. Bray, 3 East, 593, Lotan v. Cross, 2 Campb. 465, Hopper v. Reeve, 1 B. Moore, 407,* or where a person steering a ship through ignorance or unskilfulness runs it against another, Covill v. Laming, 1 Campb. 497, trespass may be maintained. But trespass is not the only form of remedy, for the party injured may as it seems waive the trespass and sue in case for the negligence. Thus where the plaintiff declared that the defendants so incautiously, carelessly, negligently, and inexpertly managed and steered their ship, that by reason of their negli- gence &c., the ship sailed andran foul of the ship of the plaintiff; after verdict for (he plaintiff and motion in arrest of judgment, the Court of King's Bench refused to arrest the judgment. Ogle v. Barnes, 8 T. R. 188. Turner v. Hawkins, IB. and P. 472. So where the declaration stated that the defendant took such bad care of his cart and horse in driving, that through his negligence, inat- tention, and want of care, &c. the cart struck the horse of the plain- tiff with such force and violence, that the horse was much hurt, &.C. ; on demurrer the court intimated a clear opinion, that as the injury was expressly alleged in the declaration to have arisen from mere negligence, inattention, and want of care, the demurrer could not be sustained. Rogers v. Imbleton, 2 Bos. and Pul. MR. 117. Recog. Moreton v. Hardern, 4 B. and C. 227.^ In Hfll V. Pickard, 3 Campb. 1S7, it is slated by Lord Ellenbo- rough that " it may be worthy of consideration, whether in those ' 10 Eng. Com. Law Reps. 816. » 2 Id. 260. 376 Trespass to Personal Property. instances where trespass may be maintained the party may not waive the trespass, and proceed fof the tort." In an action on the case against several persons as owners of a coach, for carelessly and negligently driving their coach, by their servant, &c., it appeared that at the time of the accident one of the defendants was himself driving, and it was insisted that the action ought therefore to have been in trespass, and not in case, but the Court of King's Bench held the action to be rightly brought, for that the plaintiff had a right to sue ail the defendants, and that trespass could not have been maintained against them all. Bayley, J. said in reference to Leamc v. Bray, that the court there did not decide that an action on the case would have been improper ; " No doubt," his lordship said, " trespass lies when an injury is inflicted by the wilful act of the defendant, but it is also clear that case will lie when the act is negligent and not wilful." Holroyd, J. said, " In cases where there is no ground of action except the trespass, perhaps case will not lie, but where an actual damage has been sustained, the trespass may be waived, and an action is maintainable on the special circum- stances of the case." Littledale, J. said, *' Here the defendant Hardern may at the moment have done all in his power to avoid the accident, but may have been unable to do so in consequence of antecedent negligence, and it being found that the plaintiff sustain- ed the injury in consequence of his careless driving, that sustains the present form of action." Morcton v. Hardern, 4 B. and C. 223." See also Branscomb v. Bridges, 1 B. andC. 145." 3. Where the injury is not immediate, but consequential, tres- press will not lie, and case is the proper remedy. " In all the books the invariable principle to be collected is, that where the injury is immediate on the act done, there trespass lies, but where it is not immediate on the act done, but consequential, then the re- medy is in case." Per Le Blanc, /. Leame v. Bray, 3 East, 602. Covell V. Laming, 1 Campb. 498. Day v. Edwards, 5 T. R. 649, 4. Where the act arises by the negligence of the defendant's servants, trespass cannot be maintained, and case is the only reme- dy. Morley v. Gaisford, 2 H. Bl. 442. Huggett v. Montgomery, 2 Bos. and Pul. JV. R\ 446. 4 B. and C. 227.- 3. Where the property injured is not in the immediate possess- slon of the owner, but has been let to hire, the owner must bring case, and cannot maintain trespass, for it is in the nature of an in- jury to his reversion. Hall v. Pickard, 3 Campb. 187. But the mere gratuitous bailing of the property to another, does not take it out of the possession of the owner so as to prevent him from rpain- taining trespass. Lotan v. Cross, 2 Campb. 464. Evidence under the general issue.'] The plaintiff under the ge* '0 10 Eng. Com. Law Reps. 316. « 8 Id. 43. Trespass to Personal Property. 377 eral issue must prove his possession of the chattels, but he need not prove his title as against a wrong-doer, see post p. 305. The land- lord of a furnished house cannot maintain trespass against the she- riff for taking the goods in execution. Ward v. Macauley, 4 T. R. 489. But it is sufficient if the plaintiff at the time the act was done had the constructive possession of the chattels; thus a person who has the right of property may maintain trespass though not actually in possession, for the right of property draws to it the right of possession.'* Therefore where goods are taken after the owner's death, and before probate granted to his executor, the latter, after probate granted, may maintain trespass. Com. Dig. Tres. {B. 4), Smith v. Milks, 1 T. R. 480. So the lord of a manor may maintain trespass for an estray or wreck, before seizure. Jbid. So a person who has leased his land for years, with- out any reservation of the timber, may have trespass de bonis as- portatis, during the continuance of the term, against a third person, who wrongfully cuts down the timber, and after it is severed carries it away. Ward v. Andrews, 2 Chitty, 636.'' So if the owner of a chattel gratuitously permit another to use it, he may maintain tres- pass for an injury done to it while it is so used. Lotan v. Cross, 2 Campb. 464. But it is otherwise where the chattel is let to him ; thus where the plaintiff hired a chariot for the day, and appointed the coachman and furnished the horses, it was held that he was properly described as the proprietor and owner of the chariot. Cj'oft V. Alison, 4 B. and A. 590.* The plaintiff must show an act amounting to a trespass on the part of the defendant. Thus where a sheriff seizes goods after a secret act of bankruptcy by the owner, upon which a commission subsequently issues, the sheriff cannot be made a trespasser by re- lation, and trover, and not trespass, is the proper remedy. Cooper V. Chitty, 1 Burr. 20, Smith v. Milks, 1 T. R. 475. Throwing down and breaking a jar has been held to be a sufli- cient asportation and conversion of a chattel to entitle the plaintiff to full costs. Gosson v. Graham, 1 Stai'k. 55.'' Defence. Eoidence under the general issue.'] Under the general issue the defendant may show that the goods in question were not the prop- erty of the plaintiff. Thus in an action against a sheriff for taking the plaintiff's goods, the defendant may show, under the general issue, that the plaintiff derives title to the goods under a bill of sale fraudulent as against creditors, and that the defendant took them « 18 Eng. Com. Law Reps. 435. • 6 Id. 628. ' 2 Id. i'93. 48 378 Trespass to Personal Property. under a judgment and execution against the real owner. Martin V. IV. B/.lOl, see Lake v. Bil/crs, 1 Ld. Raym. 733. But where the shcrilF justifies taking the plaintilF's own goods under a writ of ex- ecution, such justification should be spcci;illy pleaded ; for the prop- erty of the goods continues in the plaintitftill execution executed, and the sheiill" therefore cannot show that when he took them they were not the plaintilF's goods. B. N. P. 91, ^ee post, "in Actions against Slierifsy So the defendant cannot justify, under the general issue, the cutting the posts and rails of the ])laintifr, though put upon the defendant's soil. Welsh v. Kash, 8 East, 394. But where the defen- dant was a pound-keeper, and merely received into his pound the cattle taken by others, it was held that he was not even prijna facie a trespasser, and that he might give his defence in evidence under the general issue. Badhin v. Powell, Coicper, 470. Althougli in trespass for taking goods, as a distress for rent, the defendant may give his justitication in evidence under the general issue, by stat. 11 G. II. c. 19, s. 21, yet where the goods have been clandestinely re- moved froin the jwemises, and afterwards seized by the defendant, the defence must be specially pleaded. Vaughan v. Davis, 1 Esp. 256, Furneuuxv. Fotherhy, 4 Campb. 136. In trespass for destroying a picture the defendant may show, in mitigation of damages, that it was a scandalous libel, and the plain- tiff shall only recover the value of the canvass and paint. Du Bast V. Beresford, 2 Campb. 511. TRESPASS aUARE CLAUSUM FREGIT. Under the general issue in trespass quare clausum fre^i*. the plaintiff must prove his possession of the locus in quo, and the tres- pass conrmitted by the defendant. Where a justitication or other special plea is pleaded, the evidence varies according to the nature of the issue joined between the parties. Evidence of possession^ In order to maintain this action the plaintiff ought to have had possession actual or constructive. Topham v. Dent, 6 Bingh. 510.^ Any possession is a legal pos- session as against a wrong-doer. Grahajyi v. Peat, 1 East, 246. Caiteris v. Cowper, 4 Taunt. 547, Dyson v. Collick, 5 B. and A. 603.'' Thus a person occupying crown lands, under a parol li- cense, has such a possession as entitles him to maintain tres- pass against a wrong-doer. Harper v. Chart esworth, 4 B. and C. 574.' So if a tenant holds over after the expiration of his lease, or incurs a forfeiture by committing waste or otherwise, yet if the landlord permits him to continue in actual possession he may « 19 Eng. Com. Law Reps. 154. ii7Id. 203. HO Id. 412. Trespass Qiiare clausum /regit. 379 maintain trespass against any person entering upon him, and not having a better title than himself. Per Littledale, J., Ibid. 594. Com. Dig. Trespass {B. 1). But commissioners of sewers under stat. 23 H. VIII. c. 5, have not such a possession in their works, as will enable them to maintain trespass for breaking down a wall, or dam, erected by them across a navigable river. Duke of JVeiccastle V. Clark, 8 Taunt. 602." Such commissioners have merely a right to enter upon the locus in quo for the purpose of doing certain acts. Dyson v. Collick, 5 B. and A. 603.' So the persons who by 16 and 17 Car. II. are authorised to make navigable certain rivers, have no interest in the soil of a bank formed of the earth excavated from the channel of a river, so as to entitle them to maintain trespass quare clausum fregit for an injury to such bank. Hollis v. Gold- finch, 1 B. and C. 205.'" But where certain private individuals contracted with the proprietors' of a navigation to form a canal, and erected a dam of earth and wood upon a close, with the per- mission of the owner, for the purpose of completing their work, it was held that they had a sufficient possession to support trespass against a wrong-doer. Dyson v. Collick, 5 B. and A. 600.' Where a party has an interest in the soil, it is not in all cases necessary that he should have an exclusive possession. Thus the owner of the soil of a street, dedicated to the public, may maintain trespass for an injury to the soil ; Lade v. Sheppard, 2 Str. 1004; and so also with regard to the owner of a market. Mayor of JVort/i- ampton v. Ward, 1 fVils. 107. It is not necessary that a party who enters upon land should de- clare that he enters to take possession, it is sufficient if he does any act to show his intention. His servants ploughing the land will be evidence of possession. Butcher v. Butcher, 7 B. and C. 399," 1 M. and R. 220, S. C. The occasional possession of the key of a chapel with license to preach there is not sufficient to maintain trespass. Revete v. Brown, 5 Bingh. 7." Evidence of possession — property, or interest in the soil, not ne- cessary.'] Exclusive possession, without property or interest in the soil, is sufficient to maintain this action. Thus one who has the herbage, Co. Litt. 4 B. Weldonv. Bridgwater, Cro. Eliz. 421, Vin. Ah. Trespass (H.), or the vesture or pasture of a close, Co. Litt. 4 b. B. N. P. 85, Wilson v. Mackreth, 3 Burr. 1827, Parker v. Stani- land, 11 East, 366, Evans v. Roberts, 5 B. and C. 837," may main- tain trespass. So a person entitled to the exclusive enjoyment of a crop growing on land, during the proper period of its full growth, and until it be cut and carried away, may, in respect of such ex- clusive possession, maintain trespass. Per Lord Ellenhoroughy Crosby v. Wadsworth, 6 East, 609, Tomkinson v. Russel, 9 Price^ 287. So where a person has an exclusive right of digging turves. " 4 Eng. Com. Law Reps. 219. ' 7 Id. 203. "• 8 Id. G2. " 14 Id. 59. • 15 Id. 345. p 12 Id. 377. 380 Trespass Quare ciausumfregil. Wilson V. MacJircth, 3 Burr. 1834 ; or a grant of underwood. Hoe V. Tai/Ior, Cro. EUz. 413, So the owner of a free warren. F. JV". B. 86. M. Com. Dig. Trespass, {A. 2). Lord Dacre v. Tebb, 2 W. Bl 1151. Smilk V. khnp, 2 SalL 637; but see Weldon v. Bridgwater, Cro. EUz. 421. And where a meadow is divided annually amongst certain persons by lot, after their several portions are allotted^ each has an exclusive possession, and may maintain trespass. JVel- don V. Bridgwater, Cro. EUz. 421, Co. Litt. 4 a. 48, b. 5 East, 481, 13 East, 15U, 1 B. and C. 389." Evidence of possession — immediate.'] It must appear that the plaintiff was in the actual and immediate possession of the locus in quo when the trespass was committed. Therefore an heir before entry, who has only a seisin in law, cannot maintain trespass. Com. Dig. Trespass {B. 3). So a bargainee before entry. Ibid. Barker V. Kent, 2 Mod. 251, Geary v. Bear croft. Cart. 66, bid see Anon. Cro. EUz. 46. So neither the conusee of a fine, Berrij v. Goodman, 2 Leon. 147. Arg. a devisee, Anon. 2 Mod. 7, Gear7j v. Bearcroft, JBridgm. Judgm. 495, a surrenderee, Br. Ab. Surr. 50, a reversioner after the expiration of an estate for life or years, Keihv. 163, a. Com. Dig. Tres. (R 3), nor a lessee for years, Keilw. 163, a. Bac. Ab. Leases, M. can bring trespass before entry. So a parson be- fore induction. Ploiod. 528. But after induction he may maintain trespass for an injury to the glebe-lands, although he has not made an actual entry upon the part on which the trespass w^as commit- ted, for the act of induction puts him into possession of part for the whole. Buhcer v. Bulwer, 2 B. and A. 470. On the determination of a lease at will by the death of the lessee, the lessor may maintain trespass before entry. Co. Litt. 62, b. Gearij v. Bearcroft, 1 Lev. 202. And there are authorities to show that where land is let to a lessee at will, and a trespass is done to the land, both the les- sor and lessee may maintain trespass. Per Holroyd, J., Harper v. Charlesworth, 4 B. and C. 583.'- See 2 Rol Ab. 551,/. 49. Com. Dig. Tres. (B. 2.) Bridgm. Judgm. 496 {n). If a lessee at will com- mits voluntary waste, the lessor may immediately maintain tres- pass against him, for the committing waste amounts to a determi- nation of the will. Lady Shrewsbury's case, 5 Rep. 13, b. Co. Lit. 57, a. Where trees are excepted in a lease, the lessor may main- tain trespass quare clausum f regit against any one who cuts them down, for by the exception of the trees the land on which they grow is excepted also. Br. Ab. Tresp. 55, Ashmead v. Rangor, 1 Ld. Raipn. 552. Actual possession at the tirne of the trespass done is sufficient ; it is not necessary that the plaintiff should be in posses- sion at the time of action brought. 2 Rol. Ab. 569. /. 20. « U Eng. Com. Law Reps. 108. ' 10 Id. 412. Trespass Quare clausum /regit. 381 ' Evidence of possession by relation.'] Although to maintain this action the plaintiff must have had the immediate possession at the time of the injury, yet there are some cases in which, by the doc- trine of relation, the plaintiff is allowed to recover for trespasses committed at a period when he was not in fact in possession. Thus a disseisee who re-enters revests the possession in himself ab initio, and may have trespass against the disseisor or a stranger, for any act of trespass committed between the disseisin and the re-entry, 2 Rol. Ab. 550, 1. 7. 554. /. 39. Co. Lit. 257, a ; but where a fine has been levied with proclamations, the re-entry of the party will not revest the possession by relation ab initio. Compere v. Hicks, 7 T. R. 727, Hughes v. Thomas, 13 East, 486. Evidence of the ownership of ivastes, rivers, walls, ditches, ^c.'\ The waste land adjoining to a public highway is presumed, in the first instance, to belong to the owner of the adjoining land, as the highway itself usque ad fihtm does, and not to the lord of the manor. Steel V. Prickett, 2 Stark. 468.' And this rule is the same whether the adjoining land be freehold or copyhold. Doe v. Pearsey, 7 B. and C. 304,' Cooke v. Gree7i, 11 Price, 736. The presumption is to be confined to that extent, and if the narrow strip be contigu- ous to, or communicate with, open commons or larger portions of land, the presumption is either rebutted or considerably narrowed, for the evidence of ownership which applies to the larger portions, applies also to the narrow slip which communicates with them. Grose v. West, 7 Taunt. 41." Headlam v. Hedley, Holt, 463.^ The cutting down trees in a way, or clearing it, is evidence to prove the right of soil of the way. See Berry v. Goodman, 2 Leon. 148. Fin. Ab. Evid. {T. b. 102.) Fresh rivers of common right belong to the owners of the soil adjacent, so that the owners of the one side have of common right the property of the soil, and consequently the right of fishing usque ad filum aquce, and the owners of the other side the right of soil or ownership, and fishing to the filum aqucE on their side. If a man is owner of the land on both sides, by common presumption he is owner of the whole river. Hale dejure maris. Harg. Law Tracts, 5. A wall differs in point of ownership from a bank, being an artificial edifice, not formed from the materials of the place where it stands, and the property therefore of such wall is said to be in him who is bound to repair it, while the property in a bank follows that of the soil from which it is constructed. Callis on Servers, 74, 4th ed. see D. of Newcastle v. Clark, 8 Taunt. 602."' Where A. licensed B. to build a bridge on his land, and B. covenanted to build the bridge for the public use and to repair it, it was held that the pro- perty in the materials of the bridge when built and dedicated to • 3 Eng. Com. Law Reps. 433. • 14 Id. 50. « 2 Id. 19. '3 Id. 157. ' 4 Id. 219. 382 Trespass Quare. clausum /regit. the public, continued in B., subject to the right of passage by the public, [and that when severed and taken away by a wrongdoer, J3. might maintain trespass for the asportation. Harrison v. Parker, (3 East, 154, see Spovner v. Brewster, 3 Bingh. IS'J.'^ If two tenants in severalty build a party wall, one half of the thickness of which stands on the land of each, which is contributed by each under the building act, 14 G. III. c. 78 ; the wall ensues the nature of the land, and the owners of the lands are not tenants in common of the wall. Matts v. Hawkins, 5 Taunt. 20 j But in a case to which the building act does not apply, the common user of a wall separat- ing adjoining lands belonging to ditferent owners, is frima facie evi- dence that the wall and the land on which it stands belong to the owners of the adjoining lands in equal moities as tenants in com- mon. Cu.hitt V. Porter, 8 B. and C. 257.'' Where two adjacent itelds are separated by a hedge and ditch, the hedge prima facie belongs to the owner of the field in which the ditch is not. if there are two ditches, one on each side of the hedge, then the ownership of the hedge must be ascertained by proving acts of ownership, Per Bayley, J., Guy v. West, 2 Selw. JVC P. 1218. The rule with regard to ditching is this: no man making a ditch can cut into his neighbour's soil, but usually he cuts to the very extremity of his own land, he is of course bound to throw the soil which he digs out upon his own land, and after, if he likes it, he plants a hedge upon the top of it ; therefore if he afterwards cuts beyond the edge of the ditch, he cuts into his neigh- bour's land and is a trespasser : no rule about four feet and eight feet has any thing to do with it. Per Laicrence, J., Vowles v. Mil' ler, 3 Taunt. 138. The land which constitutes the ditch, in point of law, is part of the close, although it be on the outside of the bank. Per Holroyd, J., Doe v. Pearsey, 7 B. and C. 308.* Where lands abutting on a ditch and a lane on each side belong to different owners, the presumption is, that a hedge and ditch on one side, both belong to the occupier of the land on that side. Per Bayley, /., JVoije V. Reed, 1 M. and R. 65. It is said that if A. plants a tree at the extreme limits of his own land, and the tree growing, extends its roots into the land of B., A. and B. are tenants in common of the tree; but if all the roots grow in A.'s land, though the boughs shadow the land of B., the proper- ty is in A. Per Holt, C. J., Waterman v. Soper, 1 Ld. Raym. 737, B. JV. P. 85, 2 Rol. Rep. 255 ; but according to another authority, if a tree grows in A.'s close, and roots in B.'s, yet the body of the main part of the tree being in the soil of A., all the residue of the tree belongs to him. Masters v. Pollie, 2 Rol. Rep. 141. In a late » 11 Eng. Com. Law Reps. 69. i 1 Id. 4. '15 Id. 211. « 14 Id. 50. Trespass Quare clausumf regit. 383 case, Littledale, /., ruled, that the tree belongs to him in whose soil it was first sown or planted. Holder v. Cuates, 1 M. and M, 112. Evidence of the locality of the 'premises.'] The venue in this ac- tion is local, and therefore trespass will not lie for breaking and en- tering a house in Canada. Doulson v. Matthews, 4 T, R. 503. Al- though it is not necessary to name, or to specify the abuttals of the lociLS in quo, yet if it be named or described by its abuttals, a ma- terial variance will be fatal. Thus, if the description be " on the south side, abutting on the mill of A.," the plaintiff must prove a mill there in the tenure of A., but it will be sufficient, though there be a highway between them. 2 Rol Ab. 678, /. 10, B. JV. P. 89, Glib. Ev. 237. Extreme strictness, however, is not observed in the proof of abuttals ; thus, if a close be described as abutting to- wards the east, but it proves to be north inclining to east, the proof is sufficient, 2 Rol. Ah. 678, /. 13, Roberts v. Karr, 1 Taunt. 501. Where the close is stated to be situated in a certain parish, the proof must correspond with the statement. Taylor v. Hooman, 1 B. Moore, 161." If it is stated to be in the parish of A., it is enough if A. has a church and overseers of its own, although, perhaps, strictly speaking, it may only be a hamlet ; in such an action the court will not try a question of parochiality. Anon. 2 Campb. 4. Evidence of trespass committed by defendant'] Trespass lies against the party who did the trespass, and all aiding him. Com. Dig. Tresp. (C 1), and a person may become a trespasser by pre- vious command, or where the trespass has been committed lor his use and benefit, by subsequent assent. Barker v. Braham, 3 Wils. 377. Thus a person who sends out his hounds and his servants, and inyites others to hunt with him, though he does not himself ac- compaiiy them upon the plaintiff's land, is answerable for the tres- pass committed by them to the extent of the damage done by them. Baker v. Berkeley, 3 C. and P. 32 ;" but a feme covert and an in- fant cannot make themselves trespassers, either by prior command or subsequent assent. Co. Litt. 180, b. note (4), 357, b. A mas- ter is not liable for the wilful trespass of his servant, 2 Rol. Ab. 553, /. 25. But where he orders his servant to do an act, the natural consequence of which is a trespass, and the servant uses ordinary care in the execution of the order, the master is liable, though he directs the servant to avoid the trespass. Gregory v. Piper, 9 B. and C. 591. -^ A party is liable for the acts of his attorney, on proof of the retainer, as in the following case : — A. employed B. an attorney to enforce payment of a debt. B. directed his agent to sue out a justicies in the county court. Before the return of the justicies the debtor paid the debt and costs to B. Ilis agent not knowing of such judgment, afterwards entered up judgment in the » 4 Eng. Com. Law Reps. 394. ' 14 Id. 197. d 17 Id. 451. 384 T^respass Quare clausmri f regit. County Court, although the defendant had not appeared, and sued out execution, under which the goods of the debtor were seized ; it was held that both A. and B. wore liable as trespassers. Bates v. Pil/ino; G B. and C 38 ;" see also Crook v. Wright, R. and M. 278. The owner of animals mansnetcj'. natural is liable for trespasses com- mitted by thcni in the land of another; Keilw. 3, b. Com. Dig. Tresp. (C.) ; but a person from whose land animals ferce natures, as rabbits, &c. escape, is not liable for an injury done by them. Boulston's case, 5. Rep. 104, h. Cooper v. Marshal, 1 Burr. 259, and see Mason v. Keeling, 1 Ld. Raij7n. 608, Latch, 13, Beckwith V. Shordike, i Burr. 2093. Where the defendant enters, &c. under an authority in law, the plaintiff may show that he has abused such authority, and so be- come a trespasser ab initio, but a mere non-feasance will not be such an abuse. Six Carpenters' case, 8 Rep. 146, a. A lessor who enters to view waste and does damage, or stays all night, a com- moner who enters to view his cattle, and cuts down a tree, a man who enters a tavern and continues there all night against the will of the landlord, are all trespassers ad initio. Com. Dig. Tresp. (C. 2). So an officer who neglects to remove goods attached, within a reasonable time, and continues in possession. Reed v. Harrison, 2 W. Bl. 1218, Aitkenhead v. Blades, 5 Taunt. 198.^ A person dis- training who remains in possession above the five days, and dis- turbs the party, is a trespasser, for the period only during which he remains in possession after the five days expired. Winter- bourne V. Morgan, 11 East, 395, per Le Blanc and Bayley, J. J., Messing v. Kemble, 2 Campb. 115. The abuse of an authority in fact will not in general render the party a trespasser ab initio. Six Carpenters'' case, 8 Rep. 146, Z>. As to the replication of abuse, see post. By stat. 6 Anne, c. 18, guardians, trustees, husbands, seized in right of their wives, and tenants, pur autre vie holding over with- out consent, are declared trespassers, but the act does not extend to tenants for years. B. J\'. P. 85. Evidence under alia enormia, and in aggravation of damage,^.'] In trespass for breaking and entering the plaintiff's house, evidence that the defendant also debauched the plaintiff's daughter has been allowed under alia enormia. Per Holt, C. J., Russell v. Corn, 6 Mod. 127, cases temp. Holt, 699, Sippora v. Basset, 1 Sid. 225, B. JV. P. 89. But it is said to be the safest and most convenient rule not to admit under this general averment, proof of such facts as the debauching of a daughter, which are entirely unconnected in their nature, and distinct from the substantive ground of the action (the trespass in entering the house), though in point of time, the one may have immediately followed the other. 2 Phill. Evid. 185, see * 13 Eng. Coin. Law Reps. 104. f 1 Id, 75. Trespass Quare clausum /regit. 385 ante, p. 300. In trespass for breaking and entering the house of the plaintiff, he may be allowed to give in evidence, that his wife was so terrified by the conduct of the defendant, that she was im- mediately taken ill, and soon afterwards died ; but this evidence was held admissible only for the purpose of showiiifi; how outrage- ous and violent the trespass w^as, and not as a substantive ground of damage. Huxley v. Berg, 1 Stark. 98.? So where the plaintiff declared against the defendant for breaking and entering her house, and under a false charge that the plaintiff had stolen property in her house, ransacking and searching, dec. whereby she was injured in her credit, it was held that the declaration was good, and that the jury might give damages for the trespass as aggravated by the false charge. Bracegirdle v. Orford, 2 M and S. 77. The jury may consider not only the mere pecuniary damage sustained by the plaintiff, but also the intention with which the fact has been done, whether for insult or injury. Per Abbott, J., Sears v. Lyons, 2 Stark. 318." See Merest v. Harvey, 1 Marsh. 139. Evidence under the general issiie.'\ Under the general issue the defendant may give evidence of title in himself, though a mere wrong-doer cannot show that the plaintiff has no property. B. JV. P. 91. The defendant may under this plea prove the soil and free- hold in himself, or that he held as tenant to the owner of the land, or that the plaintiff held as tenant to him (the defendant), and that his tenancy had expired at the time when, &c. Dod v. Kyffin, 7 T. R. 354, Argent v. Durrani, 8 T. R. 403, Twmer v. Meymott, 1 Bingh. 158.' So he may entitle himself to the posses- sion, as the plaintiff's mortgagee for years, or as the lessee of such mortgagee. Johnson v. Howson, 2 M. and R. 226. So he may prove that the freehold and right of possession were in a third per- son, by whose command he entered. Diei'sley's case, 1 Leon. 301, 8 T. R. 403, Gilb. Evid. 255. The command must be proved ; Davies v. Lorimer, Lane. Spring Ass. 1824 ; but it has been ruled that the declarations of the owner, made after the trespass, are inadmissible to prove the command. Garr v. Fletcher, 2 Stark. 71." The defendant may also show, under the general issue, that he was tenant in common with the plaintiff, or that a third person by whose command he entered was tenant in common with the plaintiff. Ross's case, 3 Leon. 83, Gilb. Ev. 235. But where the subject mat- ter which was held in common has been destroyed, tenancy in com- mon is no defence, as where one tenant in common grubs up and destroys a hedge. Voyce v. Voyce, Goiv, 201. In general every matter of justification or excuse must be plea- ded specially, as a right of common, Co. Litt. 283, a ; a right of way or easement, Vin. ab. Ev. (Z. a). Gilb. Ev. 251 ; defect of fences, Co. Litt. 283, a ; a license, Gilb. Ev. 240; an authority in law. Com. Dig. 5 2 Eng. Com. Law Rops. 313. >• 3 Id. 3G3. • 8 Id. 280. ^ 3 id. '.^50. 49 386 Trespass Quarc clausitm /regit. Pleader (3 M. 35); and so of all matters in discharge of the action as accord and satisfaction. Bird v. Randall, 3 Burr. 1353. But by various statutes particular persons are enabled to give the special matter in evidence under the general issue, parties distraining for rent arrear by 11 G. II. c. 19, s. 21, justices of the peace, mayors, constables, viLc. by 7 Jac, I. c. 5, churchwardens and overseers by 21 .Tac. I. c. 12. See ante, p. 309. ^'^ Under the general issue the defendant cannot prove as a bar that the plaintitr is jointenant, or tenant in common of the locus in quo with a third person, which is matter of plea in abatement. Braicn V. Hedges, 1 Sa/L 290. B. M P. 91. Gill). Ev. 234. But he may give such evidence in order to reduce the plaintiff's damages pro ianto. Nelthorpe v. Dorrington, 2 Lev. 113. B. JV. P. 35. So he may show other circumstances which he could not have pleaded in mitigation, as in trespass for cutting trees, that they were applied to purposes for which the plaintiff had covenanted to furnish tim- ber. Rennelv. Wither, Manning's Index, 2^1. 2d Ed. Evidence on the plea of liberum tenementum.'\ Where the de- fendant pleads liberum tenejuentum, that the locus in quo is his soil and freehold, or the soil and freehold of a third person by whose command he entered, the issue is upon him, and he must prove it either by direct evidence of title, or by the presumptive evidence of title arising from acts of ownership, &c. Where the plaintiff" has declared generally for a trespass to his close in A. without na- ming the close, and the defendant has pleaded lib. ten. upon which the plaintiff" has taken issue, it will be sufficient for the defendant to prove a freehold in himself any where in A. which will entitle him to a verdict. Hehcis v. Lamb, 2 Salk. 453, Goodright v. Rich, 7 T. R. 355, 1 Saund. 299, b (?i). The plaintiff" in such case should have new assigned, setting out the name or abuttals of the locus in quo. But if the plaintiff" names the real name of the close in his declaration, and the defendant pleads lib. ten. generally without setting out the abuttals of the close, upon which issue is joined, the plaintiff may recover on proving a trespass done to a close in his possession, bearing the name stated in the declaration, though the defendant may have a close in the same parish known by the same name ; and it will not therefore be necessary for the plaintiff" to new assign. Cocker v. Cronrpton, 1 B. and C. 489.* Evidence under plea of justification generally.'] Where to a plea of justilication the plaintiffhas replied de injuria sua propria absque tali causa, the whole matter of the plea is put in issue, and must be proved, so far as it is material to constitute a justification. The plaintiff declared for breaking and entering his dwelling- '.8 Eng. Com. Law Reps. 140. Trespass Quare clausum f regit. 887 house, assaulting and imprisoning hinn, and during his innprisonment assaulting, striking, and pusiiing him in a violent manner, and the. defendant pleaded a justification under a writ and warrant, under which he entered, &c. and arrested, &c. and because the plaintiff, after he had been so taken into custody under and by virtue of the said writ and warrant, behaved and conducted himself in a violent and outrageous manner, and could not otherwise be kept in a safe and proper manner, the defendant was obliged to push and pull about the plaintiff, &c. and to give him a few blows, &c. A bat- tery during the imprisonment was proved, but the defendant, though he proved the arrest, gave no evidence of outrageous conduct by the plaintiff while in custody, and it was held that the plea was not proved. Phillips v. Hougate, 5 B. and A. 220.'" But where the plea consists of two facts, either of which, if separately pleaded, amounts to a good defence, it will be sufficient for the defendant to prove either of those facts. Spilsbury v. Michlethwaite, 1 Taunt. 146. And it is sufficient to prove a justification which covers the trespass, although it does not cover the matter of aggravation. Thus where the plaintiff declares for breaking, entering, and ex- pelling, and the defendant justifies only the breaking and entering, it is sufficient, for the breaking and entering are the gist of the action, and the expulsion is only matter of aggravation ; if the plaintiff had wished to take the advantage of the expulsion, he should have shown the special matter in a new assignment. Taylor V. Cole, 3 T. R. 292, 1 //. Bl. 555, S. C. So where to trespass for breaking and entering a house, and staying therein three weeks, the defendant pleaded a justification, as to breaking, and entering, and staying in the house twenty-four hours, and it was proved that he stayed in the house more than twenty-four hours. Lord Ellen- borough held that the justification was proved, and that if the plaintiff meant to rely upon the excess beyond the twenty-four hours, he ought to have said so by a new assignment. Monprivatt V. Smith, 2 Campb. 175, see also Lambert v. Hodson, 1 Bingh. 317," 1 Saund. 28, a (n). Evidence on plea of right ofway.'] The cases in which the grant of a way, ayite, p. 16, and the dedication of a way to the public, ante, p. 17, will be presumed, have been already stated. If the defendant plead a right of way, and the plaintiff deny the right, the latter may give in evidence that the way has been stopped by order of two justices ; but the order must pursue the form prescribed by statute, and any material variance will be fatal. Davison v. Gill, 1 East, 64, Welsh v. JVash, 8 East, 394, De Ponthieu v. Pen- ny feather, 5 Taunt. 634." On the traverse of a prescriptive right of way, the defendant may prove that the way was extinguished by unity of possession. Whalley v. Tompson, 1 B. and P. 371. Un- ■» 7 Eng. Com. Law Reps. 74. • 8 Id. 333. " 1 Id. 217. 388 Trespass Quare ckmsum f regit. der a traverse of the right of way tlie plaintiff will not be allowed to show that the trespass committed by the defendant was not covered by the supposed right of way, Thus where the defendant pleaded that he was seised in his demesne as of fee of a messuage, &c. in the parish, and that he and all those whose estate, &.c. had a right of way for himself, &-c. his and their farmers and tenants, occupiers of the messuage, &c. over the locus in quo to and from the messuage, Sic. as appertaining thereto, and the plaintiff tra- versed the prescriptive right, it was held that the defendant's showing that he was seised in fee of an ancient messuage in the parish, to which a right of way, as pleaded over the loais in quo, belonged, was evidence sufficient to support his plea, though the messuage was let to, and in the occupation of a tenant, and the de- fendant only occupied a new-built house in the parish, at the time of the tres'pass committed. Stott v. Stott, 16 East, 343. If the plaintiff meant to insist that the right stated would not cover the exercise of a right of way to the new house, he should have done so either by a new assignment or by a special replication to that effect. Ibid. 349. In some cases it is proper both to reply and to plead a new assignment. Where the plea on the face of it pro- fesses to answer the whole matter of the declaration, but in fact only answers part, as where to a declaration for a trespass to a close called A. the defendant pleads a right of way over A. and in the exercise of such right justifies the acts complained of, but in fact the defendant not only committed the acts complained of in that part of A. over which the alleged way passes, but also in other parts of A. the plea, as it has been said, has only " hit some of the places wherein the plaintiff intended the trespass," and the trespasses in the other parts of the close remained unanswered, see PreUyman v. Laurence, Cro. Eliz. 812, Odeham v. Smith, Cro. Eliz. 589. If therefore tlie plaintiff is desirous of denying the right of way, thinking that he can recover for the trespasses justi- fied in the plea, as well as for those which are not in fact justified, but only appear to be so, he may traverse the right, and may at the same time new-assign extra viam, and thus entitle himself to give evidence of trespasses committed in every part of the close. Where the defendant pleads that A. B. was seised in fee, and being so seised, granted a right of way by non-existing grant, and the plaintiff traverses the grant, it is not competent for the plaintiff upon that issue to show that A. 13. was not seised in fee, for the purpose of rebutting the presumption of the grant, he being estop- ped by the admission on record. Cou-lesham v. Cheslyn, 1 Cram, and Jer. 48. A plea of right of way stated a surrender to the defendant of a copyhold, with all ways then used by the tenants and occupiers Trespass Quare clausum f regit. 389 thereof, and that the defendant was admitted and continued seised, and being so seised and having occasion to use the way, committed the trespass. The rephcation traversed the right of way being used at the time of the surrender, and there v^as a new assignment that the defendant used the way for other purposes, to which the defendant pleaded not guilty. The right of way was established in evidence, but it appeared that when the trespass was committed, the tenement, in respect of which the way was claimed, was in the possession of a tenant, and that the defendant as landlord went over the locus in quo to assert a right to the way which had been ob- structed. The court held that the defendant had a right so to use the way, and that the language of the plea comprehended all the purposes for which a person seised of the tenement might lawfully use the way. Proud v. Hollis, 1 B. and C. 8.p Evidence on plea of right of common.'] On a right of common pleaded, the plaintiff may either deny the prescriptive or other right stated in the plea, or he may traverse the measure of the common, viz. that the cattle were the defendant's own cattle, and that they were levant and couchant upon the premises and com- monable cattle. Robinson v. Raley, 1 Burr. 316. B. JV. P. 93. But under this replication the plaintiff will fail if it appear that some of the cattle were the defendant's commonable cattle levant and couchant, for the number mentioned in the declaration is not ma- terial, 1 Saund. 346, e (??), Ellis v. Rowles, JVilles, 638. The plain- tiffin such case should new assign. The plaintiff may also reply an approvement of the common, if it be common of pasture. Glover V. Lane, 3 T. R. 445, 1 Saund. 353, h (n), or that the common has been enclosed for upwards of twenty years, and if issue be taken on this replication, and it appear in evidence that any part of the common has been enclosed less than twenty years, the plaintiff will fail. Haifhe v. Bacon, 2 Taunt. 156.' And it has lately been held, that upon issue joined on the right of common, the plaintiff may prove a custom for the lord of the manor to enclose parcels of the waste, and a grant to himself of the locus in quo under such custom. Arlett V. Ellis, 7 B. and C. 346. i Where in trespass for breaking and entering the plaintiff's close, the defendant in his plea prescribed in right of a messuage and land, for a right of common of pasture on a down or common, whereof the close, &.c. before the wrongful separation thereof, was parcel, and justified the trespass, because the close in which, &c. was wrongfully enclosed and separated from the rest of the common, and the plaintiff replied, that the close in the declaration mention- ed, in which &c. was a close called Burgey Cleave Garden, and had for thirty years and more been separated, and divided and en- closed from the con^mon, and occupied and enjoyed all that time in p 9 Eng. Com. Law Reps. 7. 1 14 Id. 53. 390 Trespass Quare clausum f regit. severalty, and adversely to the person holding the messuage and land, in respect of which the right of common was claimed, and the defendant rejoined that the close in which, &c. had not been oc- cupied or enjoyed for thirty years or upwards, in severalty or ad- versely, as alleged in the replication ; and the jury found that part of the garden had been enclosed within the thirty years, and that the alleged trespass was committed in that part of the garden only ; it was held that upon tliis finding the defendant was entitled to the verdict, whether the words of the issue, " the close in which," &c. constituted an entire or divisible allegation; if it was an entire al- legation it comprehended the whole of the enclosure to which the name of Burgeij Cleave Garden attached, and in that ease the plaintiff was bound to prove that the whole of the garden had been enclosed upwards of thirty years, or if it was a divisible allegation, it was confined in its meaning to that spot in which the trespass had been committed, and the jury having found that the spot had not been enclosed thirty years, it was immaterial whether the rest had been so or not. Richards v. Peake, 2 B. and C. 9 IS/ Evidence on plea of license.'] If to a plea of license, the plain- tiff reply a denial of the license, the defendant must prove a license sufficient to entitle him to commit the act complained of. The keeping open of the doors of a house in which there is a public bil- liard table, is a license in fact to all persons to enter for the purpose of playing. Diicham v. Bond, 3 Campb. 525. It is not sufficient to shoi^ a license by a servant, unless it be in law the license of the master, Hoddingshaio v. Rag, Cro. Eliz. 876 ; or by a wife ; Tay- lor V. Fisher, Cro. Eliz. 245 ; or by a daughter, Cock v. Wortham, Sella. JV. P. 1040. A license includes, as incident to it, a power to do every thing without which the act licensed cannot be done. Thus if A. licenses B. to enter his house to sell goods, B. may take assistants, if necessary, for the purpose of selling the goods, and if it be pleaded that B. and C. and D. his servants, by his command entered for that purpose, and necessarily continued there for so long, it will be intended that it was necessary for them all to enter, Dennet v. Grover, Willes, 195 ; but an authority from a tenant to his landlord, in the absence of the former, to let the premises, will not justify the landlord in entering the premises (the key being lost) through a window, by means of a ladder, in order to show the house. Ancaster v. Milling 2 D. and R. 714.^ If the plaintiff in fact did license the defendant, and the defend- ant has exceeded the license, such fact cannot be given in evidence under a denial of the license, but should be new assigned ; Ditcham V. Bond, 3 Campb. 524, 1 Saund. 300, d (n) ; but it seems that where the defendant pleads that he committed the trespass ' 9 Eng, Com. Law Reps. 273. • 16 Id. 1 18. Trespass Quare clausum /regit. 39 1 complained of with the license of the plaintiff, a revocation of the license may be proved upon an issue joined upon this plea, for it shows that there was no license at the time of the trespass. Per Best, C. J., and Holroyd, J., Bridge v. Seddall, Derby, Sp. Ass. 1827; 2 PhilL Ev. 194, 7th Ed., but see Serjeant Williams' note, 1 Saund. 300, d. And so where a man abuses an authority in lav/, whereby he becomes a trespasser ab initio, such abuse must be re- plied. 1 Saund. 300, d (n). On the other hand, where the plain- tiff means to deny the justiiication set up in the plea, he must take issue upon it and not new assign. Thus, where the defendant pleads an entry to abate a nuisance, and the plaintiff new assigns unnecessary violence, he will not be allowed to give evidence to negative the nuisance. Pickering v. Rudd, 1 Stark. 56.* And where the declaration states the trespasses to have been committed on divers days and times, and the defendant pleads a license, to which the plaintiff replies de injuria sua propid absque tali causa, the defendant must show a license co-extensive with the trespasses proved, and the plaintiff will succeed, unless the defendant can show a license for each trespass proved by the plaintiff Barnes V. Hunt, 11 East, 451. Evidence under neio assign7nent.'] A new assignment waives and abandons the trespass which the defendant has justitied. 1 Saund. 299, c (n). Therefore where the defendant pleads lib. ten. and the plaintiff new assigns, the defendant ought not to plead that the place mentioned in the new assignment is the same as that mentioned in the plea, but if in truth they are the same, the de- fendant should plead not guilty, and the plaintiff will not be allow- ed to give evidence of any trespasses committed in the place men- tioned in the plea. Pratt v. Groome, 15 East, 235, B. JV. P. 92. So where the defendant pleaded that the place where, &c. was part of a common which had been allotted to him, to which the plaintiff new assigned that the trespass complained of was in ano- ther place, upon its being stated in the opening of the plaintiff's counsel to the jury that the trespass was in the same place, but that the defendant had no title to it, it was held that the plaintiff could not recover. Ayion. cited 16 East, 86. So if the defendant justifies under legal process, which is in fact irregular, and the plaintiff, instead of traversing the plea, new assigns that the tres- pass complained of was on another and different occasion, such new assignment admits the justification stated in the plea, and if the plaintiff can only prove one trespass, that trespass will be co- vered by the plea, and the defendant will be entitled to a verdict. Oakly V. Davis, IG East, 82, and see Atkinson v. Matteson, 2 T. R. 176, ante, p. 371. On the other hand, if there were in fact two trespasses, and there is only one count in the declaration, and the defendant had pleaded » 2 Eng. Com. Law Reps. 293. 392 Trespass for Mesne Profits. a justification which he can prove, though he cannot prove a justi- fication to both trespasses, the plaintifi'must new assign, for the defendant will be entitled to a verdict on proving his justification, and the plaintiff cannot give evidence of the other trespass, see ante, p. '310. So where the plaintitf relies on an excess by the de- fendant, he must new assign such excess, ante, p. 370. In some cases, as already stated, a^ite, p. 313, the plaintiff may both reply and new assign, and will, if he succeeds, be entitled to recover tor the trespasses attempted to be justified in the plea, as well as for those covered by the new assignment. But the plaintiff cannot both reply and new assign, where the plea in fact covers the whole of the trespasses which can be proved under the declara- tion. Thus where in trespass for stopping the plaintiff's cattle and cart on a particular day, the defendant pleaded in justification that the plaintiff was loading his cart with turf wrongfully cut from a waste, and that he, as a bailiff of the lord, took it from him, to which the plaintiff replied de injuria, &c. and new assigned tres- passes on other days, it was held that the plaintiff could not both reply and new assign. Taylor v. Smith, 7 Taunt. 156, Clieasly v. Barnes, 10 East, 73. Where the defendant justifies and the plaintiff relies upon an act which renders the defendant a trespasser ah initio, such act should be replied, for should the plaintiff new assign that the tres- pass is a different trespass, he cannot recover, since he can only prove one continued act of trespass, the justification of which is ad- mitted by the new assignment. Aikinhead v. Blades, 5 Taunt. 198."* Nor can the plaintiff in such case, recover under a replica- tion of de injuria sua propria absque tali causa. Lambert v. Hodg- son, 1 Bingh. 317.^ TRESPASS FOR MESNE PROFITS. In an action of trespass for mesne profits, which may be brought in the name of the lessor of the plaintiff in ejectment, or (where the record in ejectment is evidence of the title) in the name of the nominal plaintiff, the plaintiff must prove, 1. His title. 2. His re- entry. 3. The defendant's liability ; and 4. The amount of dama- ges. Evidence of title.'] The judgment in ejectment is sufficient proof of title for the plaintiff in this action, whether it be brought by the lessor of the plaintiff, or by the nominal plaintiff, against all who are parties to such judgment, and whether the judgment in eject- ment be upon verdict or by default, AsUn v. Packer, 2 Burr. 665, B. JV. P. 87 ; but it is only evidence of title from the time of the " 1 Eng. Com. Law Reps. 75. " 8 Id. 333. Trespass for Mesne Profits. 393 demise laid in the declaration in ejectment, and therefore if the plaintiff seeks to recover damages anterior to that time, it will be necessary for him to give further evidence of his title. B. JV. P. 87. The judgment in an action of ejectment on the several demises of two or more persons, will be evidence of title for them in a joint action of trespass brought by them. Chamler v. Cllngo, 5 M. and S. 64. The judgment may be proved by an examined copy, ante, p. 44. Evidence of re-entry.'] As the plaintiff's riglit to recover dama- ges for the time during which he was out of possession depends upon the proof of re-entry, which operates to revest the possession in him ab initio, vide ante, p. 307, such re-entry must be proved. Where the action is brought against a person who was party to the ejectment, and entered into the consent rule, proof of the judgment in ejectment is said to be sufficient, without proving the writ of possession executed, because by entering into the rule to confess, the defendant is estopped both as to the lessor and lessee, so that either may maintain trespass without proving an actual entry, B. JV. P. 87. But where the judgment is against the casual ejector, and no rule therefore has been entered into, the lessor caiinot main- tain trespass without an actual entry, and therefore ought to prove the writ of possession executed, B. JV. P. 87, which is done by pro- ducing an examined copy of the writ and of the sheriff's return. The plaintiff may also prove a re-entry by showing that he was let into possession with the consent of the defendant. Calvert v. Horsfall, 4 Esp. 167. Evidence of defendant's liability.'] The plaintiff must prove the defendant's liability by showing him in possession of the premises. For this purpose the judgment in ejectment will be evidence against one who was a party to it, though not against a stranger, and therefore a judgment in ejectment against a wife cannot be given in evidence against her husband. Denn v. White, 7 T. R. 111. And where after judgment by default against the casual ejector, an ac- tion for the mesne profits was brought against the landlord, who had been in the receipt of the rents and profits from the day of the de- mise. Lord Ellenborough ruled that the judgment in ejectment was not evidence against the defendant without notice of the ejectment, but that a subsequent promise by him to pay the rent and costs, amounted to an admission that he was a trespasser, and that the plaintiff was entitled to the possession. Hunter v. Britts, 3 Campb. 45.5. Though the judgment in ejectment is evidence to show the liability of the defendant, yet it is no evidence of the time during which the defendant has been in possession ; the consent rule ad- mits possession by the defendant at the time of the service of the 50 394 Trespass for Mesne Profits. declaration ; but if the plaintiff seeks damages for an earlier pe- riod, he must give further evidence of the possession. Doe v. Gihbs, 2 C. and P. 615.^- Vie damages.] The plaintiff must be prepared to prove the value of the mesne profits, and he may recover not only the actual mesne profits, but also damages for his trouble, &.c. Goodtitle v. Toombs, 3 Wih. 121. So he may recover the amount of the taxed costs of the ejectment, but not any extra costs. Doe v. Davis, 1 Esp. 358, Brook v. Bnjdges, 7 B. Moore, 471.^ The plaintiff may recover, by way of damages, costs incurred by him in a court of error in reversing a judgment in ejectment obtained by the defend- ant. JVowell V. Roake, 7 B. and C. 404.>- Defence. If the plaintiff seeks to recover the mesne "profits for more than six years, the defendant may plead the statute of limitations, gr* JV. P. 88. But bankruptcy is no defence, the demand being for unliquidated damages. Goodtitle v. North, Dougl 584. Under the general issue the defendant cannot give in evidence that the plain- tiff accepted the rent of the premises for the time in dispute, and agreed to waive the costs of the ejectment. Doe v. Lee, 4 Taunt. 459. Where he is not concluded by the record in ejectment, the defendant may controvert the plaintiff's title. Recovery of the mesne profits in ejectment.'] By stat. 1 Geo. IV. c. 87, s. 2, whenever it shall appear on the trial of an ejectment, at the suit of a landlord against a tenant, that the tenant or his at- torney has been served with due notice of trial, the plaintiff shall not be non-suited for default of the defendant's appearance, or of confession of lease entry and ouster, but the production of the con- sent rule and undertaking of the defendant, shall in all such cases be sufficient evidence of lease entry and ouster, and the judge, be- fore whom the cause is tried, shall permit the plaintiff (whether the defendant shall appear upon such trial or not), after proof of his right to recover possession of the whole, or of any part of the premises mentioned in the declaration, to go into evidence of the mesne profits, from the day of the expiration or determination of the tenant's interest, down to the time of the verdict given in the cause, or to some preceding day, to be specially mention- ed therein ; and the jury on the trial, finding for the plaintiff, shall, in such case, give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be found for the mesne profits; ' \% Eng. Com. Law Reps. 218. » 17 Id. 86. r 14 Id. 61. Trover. 395 provided that this shall not be construed to bar any landlord from bringing an action of trespass for the mesne profits which shall ac- crue from the verdict, or the day therein specified, down to the day of the delivery of possession of the premises recovered in the eject- ment. TROVER. The plaintiff in an action of trover must prove, 1. A general or special property in the goods, or as against a wrong-doer a posses- sion of them ; 2. An actual or constructive possession, or right of possession ; and 3. A conversion by the defendant, 4. The value. Evidence of general property 111 the goods.'] Where it is neces- sary to prove the property in the goods, as where the right to them is disputed, the evidence for the plaintiff will depend upon the na- ture of his particular title. Where there is both a general and a special owner, but the general owner has not transferred his right to the possession, he may still maintain this action ; thus where he has delivered the goods to a carrier or other bailee, and so parted with the actual possession, he may still maintain trover for a con- version by a stranger, for the owner retains the possession in law, as against a wrong-doer, and the carrier or other bailee is only his servant. Gordon v. Harper, 7 T. R. 12, 2 Saund. 47, h (n). And if the bailee of goods for a special purpose transfers them to another in contravention of that purpose, the general owner may maintain trover against that person, though he Be a bona fide ven- dee, unless the goods have been sold in market overt. Wilkinson V. King, 2 Campb. 335, Loeschman v. Machin, 2 Stark. 311,* but see 2 Saund. 47, b {n). Evidence of general property — vesting of the property.] With re- gard to the time at which the property passes on the sale of goods, it is laid down in a very recent case, that where goods are sold, and nothing is said as to the time of the delivery, and the time of payment, and every thing the seller has to do with them is com- plete, the property vests in the buyer, so as to subject him to the risk of any accident which may happen to the goods {see Tarling V. Baxter, 6 B. and C. 3(50)," and the seller is liable to deliver them whenever they are demanded, upon payment of the price, but the buyer has no right to have possession of the goods till he pays the price. If the goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is imme- diately entitled to the possession, and the right of possession and the ' 3 Eng. Com. Law Reps. 359. » 13 Id. 199. 396 Trover. right of property vests at once in him, but his right of possession is not absolute, it is Hable to be defeated if he becomes insolvent before he obtains possession. Pei' Bayley, J., Bloxam v. Sanders, 4 B. and C. 984.'' Where goods in bulk are sold at so much a ton, the property in them does not pass by the sale before they are wciglicd ; Simmons v. Sicift, 5 B. and C. 857 ;" and if the contract be within the statute of frauds, and there is no note or memorandum, acceptance or earnest, the contract is by that statute not good, and no property passes. See B/oxame v. Williams, 3 B. and C. 234," and see ante, p. 216. So the property in goods passes on a sale by auction, though they are not to be delivered till certain duties are paid by the seller. Hind v. Whitehouse, 7 East, 571, and see Ph'dlimore v. Barry, 1 Campb. 513, Noy's Max. 88. Where a quantity of iron was to be delivered, under a contract that cer- tain bills outstanding against the seller should be taken out of cir- culation, and after a part of the iron had been delivered, and no bills had been taken out of circulation, the seller brought trover for the part delivered, it was held tliat it being only a conditional delivery, and the condition being broken, the action might be main- tained ; and per Bailey, J., if a tradesman sells goods to be paid for on delivery, and his servant by mistake delivers them without receiving the money, he may, after demand and refusal to deliver or pay, bring trover for his goods against the purchaser. Bishop v. Shillito, 2 B. and A. 329 (w). So the property which passed by the sale may be devested by the rescinding of the contract. Thus where A. sold goods to B. and afterwards and before the delivery to B., C became possessed of the goods, and on being informed of the circumstances, declared that he would not deliver them to any person whatever, it was held thai A. having repaid B. might main- tain trover against C, the contract between A. and B. being re- scinded, and A. being remitted to his former right. Pattison v. Robinson, 5 M. and S. 105. Where A. is indebted to C. and B. to A. and it is agreed between them that B. shall deliver goods to C. in satisfaction of A.'s debt, and B. converts them to his own use, C. may maintain trover for the goods, though he never had possession, .for by the agreement the right is in him. B. JV. P. 35. Where A. agrees to build a ship for B. and it is part of the terms of the contract that given portions of the price shall be paid according to the progress of the work, the payment of those in- stalments appropriates specifically to B. the very ship in progress, and vests in him a property in that ship. IVoods v. Russel, 5 B. and A. 942." But where goods are ordered to be made, as long as the order is not executed, but only in a course of execution, no pro- perty in general passes to the person for whom they are made. Bisliop V. Craxoshay, 3 B. and C. 419.' Muckloiv v. Mangles, 1 Taunt. b 10 Eng. Com. Law Reps. 477. • 12 Id. 388. -i 10 Id. 60. • 7 Id. 310. 1 10 Id, 136. Trover. 397 318. See Carruthers v. Payne, 5 Bingh. 270.« Atkinson v. Bell, 8 B. qnd C. 283," ante, p. 223, Goode v. Langley, 7 B. and C. 26.' By a gift of goods the property does not pass, unless the gift be by deed or instrument of gift, or be executed by an actual delivery of (he thing given to the donee. Irons v. Smallpiece, 2 B. and A. 551. But if A. in London gives J. S. his goods at York, and another takes them away before J. S. obtains actual possession, J, S. may, it is said, maintain trover or trespass for them. Br. Ah. Trespass, 303, Hudson v. Hudson, Latch, 214, 2 Saund. 47, a (n), sed qucere. By a fraudulent or illegal sale or transfer of goods no property passes, as where a wharfinger without leave of the owner sells goods in his possession. Wilkinson v. King, 2 Campb. 335. So where in case of a sale of live pheasants, no property passes, the 58 G. 3, c. 75, prohibiting the buying. Helps v. Glenister, 8 B. and C. 553.*^ So where a person obtains goods upon false pretences, under colour of purchasing them, the property is not changed. JVo- hle V. Adams, 7 Taunt. 59.^ Kilbi/ v. Wilson, R. and M. 178. So where stolen goods are pawned, the property is not altered, Par- ker v. Gillies, 2 Campb. 336, (n) ; and by Stat. 1 Jac. I. c. 21, s. 5, sale of any goods wrongfully taken to any pawnbroker in London, or within two miles thereof, shall not alter the property. But it stolen goods are sold in market overt, the property is devested out of the owner. Thus where stolen goods were purchased in mark- et overt, and sold by the purchaser before the felon was convicted, it was held that the owner of the goods prosecuting to conviction, could not maintain trover against the purchaser who had so sold, under the statute 21 H. VIII. c. 11, which gives restitution to the owner who prosecutes the felon to conviction, although he gave the purchaser notice of the robbery while the goods were in his posses- sion ; for the property being altered by the sale in market overt, was not revested in the owner till the conviction of the felon, but the defendant had parted with the possession before that time, and therefore could not be said to have converted the plaintiff's goods. Honcood V. Smith, 2 T. R. 750 ; and see Parker v. Patrick, 5 T. R. 175. In trover for stolen property it does not seem to be necessary for the plaintiff to show the mode by which it passed out of his hands. See Down v. Hailing, 4 B. and C. 334.™ By a writ of execution the property in the goods is not altered until execution executed. The meaning of the words that the goods shall be bound by the delivery of the writ to the sheriff, is that after the writ is so delivered, if the defendant make an assign- ment of the goods, unless in market overt, the sheriff may take them in execution. Per Lord Hardwicke, Lowthal v. Tomkins, B. JV.P.91, and see R. v. Allnutt, 16 East, 278. By a judgment for damages in trover, and satisfaction of the 1 15 Eng. Com. Law Reps. 447. •> 15 Id. 216. ' 14 Id. 9. » 15 Id- 295. »2Id. 25. » 10 Id. 347. 398 Trover. damages, the property in the goods taken is vested in the defend- ant, Adams v. Broughton, 2 Str. 1078, Moiris v. Robinson, 3 B. and C. 200," where the full value of the article has been recovered ; but unless the full amount is recovered the judgment will not bar even other actions of trover. Per Holroyd, J., Ibid. So judgment for the plaintiff in replevin in the detinet for damages, vests the property of the goods in the defendant. Moore v. Watts, 1 Lord Raxjyn. 014. An executor or administrator has the property of the goods of the testator or intestate vested in him before his actual possession ; Com. Dig. Administration, {B. 10), and though administration be not granted for a long time, yet when it is granted it vests the property in the administrator, by relation from the time of the death of the intestate. Ibid. 2 Rol.Ab. 554, /. 15. 25, R. v. Horsley, 8 East, 410, but see Woolley v. Clark, 5 B. and A. 704," where it is said per Abbott, C. /. that the property of the deceased vests in the administrator only from the time of the grant of the letters of ad- ministration, but that it vests in an executor from the moment of the testator's death. If a man take the goods of another by wrong, the property is not altered. Com. Dig. Biens (E). Nor will the property in goods pass by an award. Hunter v. Rice, 15 East, 100. Questions have frequently arisen as to the passing of property in bank notes, promissory notes, and other securities for money. The general rule is, that bank notes or bills, drafts on bankers, bills of exchange, or promissory notes, either payable to order or indorsed in blank, or payable to bearer, when taken bond fide, and for a va- luable consideration, pass by delivery, and vest a right thereto in the transferree, without regard to the title or want of title in the person transferring them. Per Holroyd, J., Wookey v. Pole, 4 B. and A. 9.p Citing Miller v. Race, 1 Burr. 452, Grant v. Vaughan, 3 Burr. 1516, Peacock v. Rhodes, Dong. 636. So exchequer bills, Wookey v. Pole, 4 B. and A.l^; and Prussian bonds, Gordier v. Mel- ville, 3 B. and C. 45.'' But in these cases it is a question of fact for the jury, under all the circumstances of the case, whether the bill, &c. has been taken bond fde or not, and whether due and reasonable caution has been used by the person taking it. Per Holroyd, J., Gill v. Cubitt, 3 B. and C. 477.'- Where a Bank of England note for 1000/. dated 12th Oct. 1820, was lost in London in April, 1821, and in June, 1822, was presented for change to a banker in Liverpool, by a person with whom the latter was well acquainted, but who was then in pecuniary difficulties, and he changed it by giving bills which had some time to run, and cash, de- ducting a commission, without asking any questions how the holder came possessed of it, Holroyd, J. told the jury that if they were of opinion that the defendant received the note fairly and bond » 10 Enjr. Com. Law Reps, 49. » 7 Id. 219. p 6 Id. 326. 1 10 Id. 16, ' 10 Id, 158. Trover. 399 fide, in the ordinary course of business, and had given full value for it, he would be entitled to a verdict; but if on the other hand, he had received it out of the ordinary course of business, and had not in fact given the full value for it, then the plaintifi's would be en- titled to a verdict. The jury having found for the plaintiffs, the court refused a new trial. Egan v. Threlfall, 5 D. and R. 326 (n).» So where a bill of exchange was stolen during the night, and taken to the office of a discount broker early on the following morning, by a person whose features were known, but whose name was unknown to the broker, and the latter being satisfied with the name of the acceptor, discounted the bill according to his usual practice, with- out making 'any inquiry of the person who brought it, it was held, that in an action on the bill, by the broker against the acceptor, the jury were properly directed to find a verdict for the defendant, if they thought that the plaintiff had taken the bill under circum- stances which ought to have excited the suspicion of a prudent and careful man, and the jury having found for the defendant, the court refused to disturb the verdict. Gill v. Cubitt, 3 B. and C 466.* The owner of a check upon a banker for 50/. having lost it by ac- cident, it was tendered five days after the date to a shopkeeper in payment of goods purchased to the value of 6/. \0s. and he gave the purchaser the amount of the check after deducting the value of the goods purchased. The shopkeeper the next day presented the check at the banker's, and received the amount. It vi^as held, that in an action brought by the person who had lost the check, against the shopkeeper, to recover the value of the check, the jury were properly directed to find for the plaintiff if they thought the defendant had taken the check under circumstances which ought to have excited the suspicion of a prudent man, and secondly, that the shopkeeper having taken the check five days after it was due, it was sufticicnt for the plaintiff to show that he once had a pro- perty in it, without showing how he lost it. Down v. Hailing, 4 B. and C. 330." So where the plaintiffs were robbed of a Bank of England note for 500/. which the defendants, bankers in a small town, some months afterwards, discounted for a stranger, a respect- able-looking man, by giving him 500/. worth of their own notes, in trover for the note, Best, C. J., left it to the jury to determine, as well whether the plaintiff had acted with due diligence in circulat- ing intelligence of the robbery, as whether the defendant had ex- ercised sufficient caution, and had observed the usual course of business in exchanging the note ; the jury having found for the plaintiff, the court of Common Pleas refused a new trial. Snow v. Peacock, 3 Bingli, 406.^ See Snow v. Leatharn, 2 C. and P. 314." Snoiv V. Saddler, 3 Bing/i. 010.'' The plaintiff left in a hackney- coach in London, and lost her reticule containing a 100/. bank post • 16 Eng. Com, Law Reps. 237. ' 10 Id. 154. » 10 Id. 317. ' 13 Id. 25. « 12 Id. 142. » 13 Id. 69. 400 Trover. bill indorsed in blank, and issued hand-bills proclaiming her loss. The defendant, a banker at Brighton, who had never heard of the loss, cashed the bill for a stranger eight days afterwards. The stranger on being asked his name said he was on a journey, and wrote on the bill a fictitious address in an illiterate hand. The de- fendant did not inquire where he was staying. It was held that the defendant was liable to the piaintifTfor the amount of the note. Strange v. IVigneij, G Bingh. (ill J Where a bill has been stolen, the owner must give notice immediately in order to apprise the public of the loss. When the owner of a bill was robbed of it, eight days before it became due, and did not give notice of his loss till the end of seven days, and then only to the acceptor, Best, C. J. left it to the jury to say whether the plaintilF had done all he ought to do in order to apprise the public of the loss ; and whether the defendant had acted bona fide and with sufficient caution ; the jury having found a verdict for the defendant, the court of Common Pleas refused a new trial. Beckivith v. Corrall, 2 C. and P. 261," 3 Bingh. 444," S. C. But though the loss of the note has not been duly advertised, yet if it has been received under circumstances that induce a belief that the receiver knew that the holder had become possessed of it dishonestly, the true owner is entitled to re- cover its value from the receiver. The negligence of the owner is no excuse for the dishonesty of the receiver. But the negligence of the one may be an excuse for the negligence of the other, and might authorise him to defend himself on the maxim potior est con- ditio possidentis. Per Best, C. /., Snoio v. Peacock, 3 Bingh. 406.'' Evidence of special property.] It is sufficient for the plaintiff to prove that he has a special property in the goods converted. Thus a carrier, a bailee, the sheriff who has taken goods in execu- tion, B. JV. P. 33, the agister of cattle, Br. Ah. Tresp. 67, the lord who seises an estray or wreck before the year and day expired, B. JV. P. 33, may maintain this action. So if a house be blown down, and a stranger take away the timber, the lessee for life may bring trover, for he has a special property to make use of the same in rebuilding. Ibid. In some cases a person who has only a special property may maintain trover, although he has never had actual possession : thus a factor to whom goods have been consigned, but by whom they have never been received, may bring trover for them. Per Eijre, C. J., Fowler v. Down, 1 B. and P. 47. And where the consignor of goods, hearing that the consignee had stop- ped payment, indorsed the bill of lading to the plaintiff, without con- sideration, directing him to take possession of the goods, and the plaintiff demanded the goods from the defendants (wharfingers), who refused to deliver them, it was held that the plaintiff had such a special property as entitled him to maintain trover. Morison v. 1 19 Eng. Com. Law Repa. 201. ■ 12 Id. 121. • 15 Id. 44. ^ 13 Id. 25. Trover. 401 Gray, 2 Bingh. 260." See Waring v. Cox, 1 Campb. 396, Sargent v. Mo7'ris, 3 B. and A. 276.'' Where a person entitled to the tempo- rary possession of a chattel delivers it to the general owner for a special purpose, he may, after that purpose is satisfied, and on the refusal of the general owner to return it, maintain trover against him for the chattel. Roberts v. Wyatt, 2 Taunt. 268. It has been held that a landlord who distrains goods has not such a special pro- perty as will enable him to maintain trover, for he has only a pledge with a power to sell by statute. Moneaux v. Goreham, Sehv. JV. P. 1303, R. V. Cotton, Parker, 112, sed quare. Evidence of possession — sufficient against a wrong-doer.'\ Where the action is brought against a mere wrong-doer, it will be sufficient for the plaintitf to show that he was in possession of the property. Thus where a chimney-sweeper's boy found a jew^el, and took it to a jeweller who refused to return it, it was held, that though the finder did not acquire an absolute property, yet he had such a pro- perty as would enable him to keep it against all but the rightful owner, and consequently that he might maintain trover. Armory v. Delamirie, I Str, 505. So where the plaintiff bought a vessel which had been stranded, which was not conveyed to him accord- ing to the provisions of the registry acts, and took possession of her, and afterwards she went to pieces, and part of the wreck, drifting upon the defendant's premises, was seized by him, it was held that the plaintiff had a sufficient property to maintain this action. Sut- ton V. Buck, 2 Taunt. 302. So where theovvner of furniture lent it to the plaintiff under a written agreement, and the plaintiff placed it in a house occupied by the wife of C. a bankrupt, C.'s assignees having seized the furniture, it was held that the plaintiff might re- cover in trover without producing the agreement. Burton v. Hughes, 2 Bingh. ITS.^ Where in trover for copper-ore, it was proved that the plaintiff was in possession of land in which he sunk a shaft and raised the ore in question, and the same witness on cross-examina- tion proved that the ore was taken away by a person who had a shaft in an adjoining close, and who was getting the same load of copper-ore under the plaintiff's land where he sunk his shaft, it was held that this was prima facie evidence of the plaintiff's right to the ore. Rowe v. Brenton, 8 B, and C. 737.' Evidence of right of possession.'] The plaintiff must show that he has a right to the immediate possession of the goods, or he can- not recover in this action. Thus the purchaser of goods not sold upon credit, -though by the contract of sale he acquires the right of property, has no right of possession until he pays or tenders the ' 9 Eng. Com. Law Reps. 405. i 5 Id. 2n3. ' 9 Id. 3G8. ' 15 Id. 335. 51 402 Imver. price. Bloxam v. Saunders, 2 B. and C. 941, s ante, p. 390. So where goods, leased as furniture witli a house, have been wrong- fully taken in execution by the shcrilF, the landlord cannot maintain trover against the slieriH" pending the lease, for he has not the right of possession. Gordon v. Harper, 7 T. R. 9. Pain v. Whittaher, R. and M. 99. Cut where tlie furniture was let to rrmarried woman living apart from her husljand, it was held, that inasmuch as she could not acquire the light of possession by any contract, the own- er of the furniture might maintain trover for it. Smith v. Plomer, 15 East, (507. And where certain mill machinery, together with a mill, had been demised for a term to a tenant, who without per- mission from his landlord, severed the machinery from the mill, and it was afterwards seized and sold by the sheriff under n fi. fa., it was held that no property passed "to the vendee, and that the landlord was entitled to bring trover for the machinery, even dur- ing the continuance of the term. Farrant v. Thompson, 5 B. and A. 82G.'' So where lands are leased for years, and a tree is cut down by a stranger during the term, the landlord may maintain trover for it, for when it is severed the special property of the les- see is determined. Berry v. Heard, Cro. Car. 242, Croke, J. Diss. 7 T. R. 13, 5 B. and A. 829,'' supra. But troyer cannot be maintained by a tenant in tail expectant on the determination of an estate for life, without impeachment of waste, for timber which grew upon and was severed from the estate, for the tenant for life has a right to the trees the moment they are cut down. Pyne v. Dor, 1 T. R. 55. iSee Williams v. Williams, 12 East, 209, Channon v. Patch, 5 B. and C. 897.' Where a father gave to his son (an infant sixteen years of age) a watch, and certain books and wearing apparel, it was ruled that the right of possession was in the son, and that the father could not maintain trover for them, though perhaps it might have been otherwise in the case of a very young child. Hunter v. West- hrook, 2 C. and P. 578.'' Evidence of conversion — direct conversion.'] The gist of the ac- tion of trover is the wrongful conversion of the plaintiff's goods by the defendant, but a conversion does not, ex vi termini, imply a transfer of property to the defendant, but rather a deprivation of property to the plaintiff Keyicorth v. Hill, 3 B. and A. 687.' A conversion may be proved either by evidence of a direct act of conversion, or by showing a demand of the goods by the plaintiff, and a refusal by the defendant to deliver them. An unlawful tak- ing of goods out of the possession of the owner is itself a con- version. B. J\'. P. 44, 2 Saund. 47, g (n). Therefore a bankrupt may maintain trover against his assignees in order to try the valid- ity of the commission, without proving a demand and refusal, for «10 Enir. Com. Law Reps. 477. b7 Id. 272. ' 12 Id. 399. » 12 Id. 272. ' 3 Id. 422. Trover. 403 the taking of the goods by the assignees is a sufficient conversion, and the plaintiff nnust be deemed to have delivered them on com- pulsion. Summersett v. Jarvis, 3 B, and B. 2."' So the using a thing without the license of the owner, found or delivered to the party- using it, is a conversion. Midgrave v. Ogden, Cro. EUz. 219, 3 B. and A. 687." Thus the wearing of a pearl is a conversion. Lord Petre v. Heneage, 12 Mod. 519. So where a person finds a thing, and misuses it, it is a conversion. Per Cur. J\hdgrave v. Ogden, Cro. Elk. 219. So where a person coming to the possession of land, found there a block of stone belongins; to- another, and removed it, not to an adjacent place, but to a distance, it was ruled to be a conversion. Fordsdick v. Collins, 1 Stark. 173,° see Havgldon v. But/er, 4 T. R. 364. So drawing part of the liquor out of a vessel and filling it up with water, is a conversion of all the liquor. Rich- ardson V. Atkinson, 1 Str. 576. So a person in the lawful posses- sion of goods may be guilty of a conversion of them by dealing with them contrary to the orders of the owner. Thus where the owner of goods on board a vessel, directed the captain not to land them on a wharf against which the vessel was moored, which he promised to do, but afterwards delivered them to the wharfinger for the owner's use, under an idea that the wharfinger had a lien thereon for the wharfage fees, this was held a conversion. Syeds v. Hay, 3 T. R. 260. But v^'here the defendant, who had been en- trusted by the plaintiff to sell certain goods in India, not being able to sell them there himself, delivered them to an agent in India to be disposed of by him, it was held no conversion. Bromley y. Coxwell, 2 B. and P. 438. In order to constitute an actual con- version, it is not necessary that the party should deal with the goods as his own; thus where a bankrupt being indebted to G. delivered goods to G.'s servant, who gave a receipt for them in G.'s name, and sold them for his use, it was held that this sale was a conversion by the servant. Perkins v. Smith, 1 Wils. 328. So the misdelivery of goods by a wharfinger, Devereaux v. Barclay, 2 B. and A. 702, or by a carrier, Youl v. Harbottk, Peake, 49. Stephen- son V. Hart, 4 Bingh. 483,1" jg a conversion, though it is otherwise where he loses gooods by accident. Ibid. Ross v. Johnson, 5- Burr. 2825. Proof that the carrier asserted that he had delivered the goods to the consignee, and that such assertion is false, is not evi- dence of a conversion. Altersoll v. Briont, 1 Camph. 409. The taking the plaintiff's property by assignment from another who has no right to dispose of it is a conversion; therefore where the defendant took an assignment of tobacco in the king's ware- house, by way of pledge from a broker who had purchased it in his own name for his principal, it was held that he had been guilty of a conversion, it being also proved, that when the tobacco was demanded from him by the plaintilF he refused to deliver it. » 7 Eng. Com. Law Reps, 322. " .5 Id. 422. » 2 Id. 343. r 15 Id. 47. 404 Trover. M'Comhie v. Davies, East, 538. Baldwin v. Cole, Mod. 212. sec also Jathson v. Anderson, 4 Taunt. 25. But where goods were placed in the hands of a factor for sale, and he indorsed tlie hills of lading to the defendants, who thereupon accepted a hill for him, and he at the same time directed the defendants to sell the goods, and reimhurse themselves the amount of the hill out of the proceeds, it was held that the defendants, having sold the goods, could not be sued for them in trover by the original owner. Sliernhold v. Holdcn, 4 B. and C. 5.^ So where a broker who is authorised to sell goods at a certain price, sells them at an inferior price, it is no conver- sion by him. Ditfrcnc v. Hutchinson, 3 Taunt. 117. Where A. consigned the goods of B. to C, and C. without notice of the right of B. sold a part, and kept the remainder in his posses- sion, the sale was held to be a conversion. Fcatherstonhangh v. Johnson, 8 Taunt. 237.' And where a banker discounted a bill drawn on a customer, and by the acceptance made payable at his bank, after it had been lost by the holder, of which he had notice, and afterwards debited his customer with the amount of the bill, wrote a discharge on it, and delivered it up to the customer as the banker's voucher of his account, it was held that the banker was guilty of an actual conversion. LoveJl v. May-tin, 4 Taunt. 799 ; and see Bechcith v. Corrall, 2 C. and P. 263.' Where the defendant took the plaintiff's boat in order to reach his own vessel, which was on fire, being under the plaintiff's care, and the boat was accidentally sunk. Lord Ellenborough was of opinion that this was not a conversion. Drake v. Shorter, 4 Esp. 165. So it is no conversion if the master of a ship throw goods into the sea to prevent the ship from sinking. Bird v. Astcock, 2 Biilstr. 280. Evidence of conversion — bij demand and refusal'] A demand of the goods by 'the plaintiff, and a refusal to deliver them by the de- fendant, he having the power to deliver them, are evidence of a conversion. But being only presumptive evidence of a conver- sion, it may be rebutted by other evidence to the contrary. 2 Saund. 47 e (n). A demand and refusal are evidence of a prior conversion ; Per Cur. Wilton v. Girdlestone, 5 B. and A. 847.' A distinct refusal must be proved, mere evasive excuses for not deliv- ering the goods will not be sufficient. Severin v. Keppel, 4 Esp. 156. But where, in trover by assignees of a bankrupt for a landau, it appeared that after the act of bankruptcy the bankrupt had sold the landau to the defendant, and that a written demand of it had been left by the plaintiff at the defendant's house ; but it did not appear that the latter had expressly refused to deliver it up, Ptich- ardson, J. ruled that the demand, and the non-delivery in pursuance ■4 10 En^. Com. Law Reps. 5^60. ' 4 Td. ?,ij. « 12 Id. 121. ' 7 Id. 278. Trover. 405 of that demand, were evidence of a conversion. fVatkins v. Wol- ley, Goit; 09." Whenever the circumstances are not such as to amount to an actual conversion, the plaintiff, in order to recover, must prove a demand and refusal. Thus where a trader on the eve of a bank- ruptcy makes a collusive sale of goods to A. the assignees cannot maintain trover against A. without proof of a demand and refusal. Nixon V. Jenkins, 2 H. BL 135, see Perkins v. Smith, 1 Wils. 238, ante, p. 327. Jones v. Fo)'t, 9 B. and C. 764.^ Tennant v. Strachan, 1 M. and M. 377. In order to render a demand and refusal evidence of a conver- sion, it must appear, that at the time of the demand made the party had it in his power to deliver up or retain the article demanded. Smith V. You7ig, 1 Campb. 441. There are many cases in which a refusal to deliver goods will not be evidence of a conversion. Thus where the party detaining them refuses to deliver on the ground of having a present right to the possession, as where a carrier or wharfinger detains goods as a lieu for his carriage or wharfage. Skinner v. Upshaiv, 2 Lord Raym. 752, York v. Grenaugh, Id. 866. But where a person who has a lien, on demand made, does not claim to retain the goods in right of his lien, but as his own property, it will be evidence of having waived his lien. Boardman v. Sill, 1 Campb. 410 (n). Thus' where the vender of goods in order to stop them in transitu, ap- plied to the captain to deliver them up, but did not tender the freight, and the captain refused, alleging that he had signed a bill of lading to deliver the goods to another, it was held that he had dispensed with any tender of the freight, and that the demand and refusal were presumptive evidence of a conversion. Thompson V. Trail, 6 B. and C. 36,- 9 D. and R.31,S. C. Yet when the de- fendant, who had a lien on some cloth, purchased it from the bailor after he had become bankrupt, and when the cloth was demanded of him by the assignees, refused to give it up, saying, " 1 may as well give up every transaction of my life," it was held that these words were no waiver of his lien, and that the lien was not merged in the purchase. White v. Gainer, 2 Bingh. 23.=' So if a person who finds goods refuses to deliver them to the owner until he proves his right to them, such refusal is no evidence of a conversion. Green v. Dunn, 3 Campb. 215, (n), Solomon v. Dawes, 1 Esp. 83, Gunton v. JVurse, 2 B. and B. 449. ^ 2 B. and P. 464. So where goods, the property of the plaintiff, had been, by the servants of an insurance company, carried to a warehouse, of which the defend- ant, a servant of the company, kept the key, and the defendant, on being applied to by the plaintiff to deliver them up, refused to do so without an order from the company, it was held that this re- fusal was no evidence of a conversion. Alexander v. Southey, 5 B, and A. 247.* A refusal by the general agent of a party is not evi- • 6 Eng. Com. Law Reps. 467. ' 17 Id. 493. " 13 Id. 103. * 9 Id. 302. T 6 Id. 193. • 7 Id. 83. 406 Trover. dence of a conversion by that party ; it must be shown that, in the particular fact of the refusal, the agent acted under the special directions of his principal. Per Gihhs, C. J., Pothonier v. Daioson, Holt, 383." But proof of a refusal by the servant of a pawnbroker has been held to be evidence of a conversion by liis master. Janes V. Hart, 2 Sa/h. 441. In trover for bricks, where the evidence to prove the conversion was, that some men fetched away the bricks in a cart, on which the defendant's name was painted, and that the men, on being asked why they did so, said they were ordered by their master, Mr. W. (the name of the defendant,) Lord Gilford ruled that there was no evidence to connect the defendant with the transaction. Evei-est v. Wood, 1 C. and P. 75.'' A demand of payment for the goods has been held a sufficient demand, Thompson v. Shirley, 1 Esp. 31 ; and service of a written demand, by leaving it at the house of the defendant, is good. Lo- gan V. Hou/ditch, 1 Esp. 22. Where two independent concurrent demands have been made, one verbal and the other in writing, proof of either will be sufficient. Smith v. Young, 1 Campb. 440. A demand and refusal of fixtures is no evidence of the conversion of articles which are not fixtures. Colegrave v. Dios Santos, 2 B. and C. 76."= Evidence of conversion, by whom-l As the possession of one jointenant, tenant in common, or parcener, is the possession of the other or others, trover cannot in general be maintained by one jointenant, &-c. against his companion. Co. Litt. 200, a, 2. Saund. 47, h ill). Thus where the plaintiff and one of the defendants were members of a friendly society, the funds of which were kept in a box deposited with them, and the defendant took away the box and delivered it to the other defendant, who was not a mem- ber of the society, it was held that the plaintifT could not maintain trover for the box. HoUiday v. Camse/I, 1 7' B. 658, So wdiere one tenant in common of a whale refused to deliver a moiety of it to the other, and put it up and expressed the oil, it was held that this was no conversion. Fenningsv. Lord GrenviUe, 1 Taunt. 241. But if one tenant in common, &c. destroy the thing in common, trover lies. Thus where one tenant in common of a ship took it away by force and sent it to the West Indies, where it was lost in a storm, it was Iield to be evidence of a destruction by him so as to support an action of trover. Barnardeston v . Chapnan, cited 4 East, 121, B.JV. P. 34. So it is said that the sale of the whole of a chattel by one tenant in conmion, without authority of his co- tenant, either express or implied, is with respect to the other a wrongful conversion of his undivided part. Per Bayley, J., Barton V. IVilUams, 5 B. and A. 403." See Heath v. Hubbard, 4 East, 110, 126. »3Eng. Com.Law Rops. 135. '' 1 1 Id. S20. • 9 Id. 30. 1;{ Id. 395. '"61(1.446. "5 1(1.285. "14 Id. 170. 52 410 Trover. Evidence of lien, C Geo. IV. c. 94, s. 5.] It is enacted by this statute, that " it shall be lawful to and for any person or persons, body or bodies politic or corporate, to accept and take any such goods, wares, and merchandize, or any such document as aforesaid, in deposit or pledge from any such factor or factors, agent or agents, notwithstanding such person or persons, body or bodies politic or corporate, shall have such notice as aforesaid, that the person or persons making such deposit or pledge is or are a factor or factors, agent or agents; but then and in that case each person or persons, body or bodies politic or corporate, shall acquire no further or other right, title, or interest in, or upon, or to the said goods, wares, or merchandize, or any such document as aforesaid for the delivery thereof, than was possessed, or could or might have been enforced • by the said factor or factors, agent or agents, at the time of such deposit or pledge, as a security as last aforesaid ; but such person or persons, body or bodies politic or corporate, shall and may ac- quire, possess, and enforce such right, title, or interest, as was pos- sessed and might have been enforced by such factor or factors, agent or agents, at the time of such deposit or pledge as aforesaid." It has been held under this statute, that where a broker accepts bills for his principal on the security of goods then in his hands, and pledges the goods with a person who has no notice of the agen- cy, and does not inform the principal of the transaction, the broker only transfers such right as he has, which is a right to be indemni- fied against the bills accepted ; and that the principal having sat- isfied those bills, has a right to have his goods back from the paw- nee without paying tlic amount for which they were pledged. Fletcher v. Heath, 7 B. and C. 517.'' In order to bring a case within this section of the statute, the transfer must have been made expressly as a pledge. Thompson v. Farmer, 1 M. and M. 48. Evidence of lien — cases in lehich a lien does not arise.l It was formerly thought that a lien did not arise where there is an express contract between the parties relative to the price, &c. ; but only in cases of implied contract ; but it is now settled that a special agreement does not of itself destroy the right to retain, but only when it contains some term inconsistent with that right. Thus where corn is delivered to a miller to be ground at a certain stip- ulated sum per load, the miller has a lien for that sum. Chase v. Westmore, 5 M. and S. 180, But if by the agreement the purcha- ser of goods is entitled to have the goods immediately, and the payment in respect of them is to take place at a future time, that is inconsistent with the right to retain the goods till payment, and the seller will have no lien for the price of the goods. Craw- shay V. Homfray, 4 B. and A. 52,' supra. Thus where wharfage r 14 Enij. Com. Law Reps. 94. i 6 Id. 313. Trover.' 411 due upon goods is by the course of trade payable at Christmas, whether the goods are in the mean time removed or not, there arises no Hen on the goods for the wharfage. Jd. 4 B. and .^. 50 ' In general a lien cannot arise unless the party claiming it has possession of the goods. Kinlock v. Craig, 3 T. R. 119, 783, Taylor V. Robinson, 8 Taunt. 648.' And where a party obtains the posses- sion of goods by misrepresentation he cannot claim a lien upon them, though had they come rightfully to his hands, he might have been entitled to retain them. Madden v. Kempster, I Campb. 12, and see Lempriere v. Pasley, 2 T. R. 485. In order to establish a lien it must appear that the work, &c. in respect of which it was claimed, was done at the request of the owner of the goods detained, and therefore where a servant took his master's chaise, which had been broken by his negligence, to a coach-maker to be repaired, without his master's knowledge, it was ruled that the coach-maker had no right to retain the chaise against the master, for the repairs. Hiscox v. Grecnicood, 4 Esp. 174. Evidence of lien — ivhen waived^ A party entitled to a lien may waive it by not insisting upon it when the goods are demanded from him. Boardman v. Sill, 1 Ca7npb. 310 (?i). So he may waive it by parting with the possession, as where the goods are taken in execution at his own suit. Jacobs v. LatoiLV, 5 Bingh. 130.* Thus where a coach-maker repaired a carriage, and allowed the owner to take it away, it was ruled that he could not retain it for the re- pairs, when again brought to him. Hartley v. Hitchcock, 1 Stark. 408," and see Jones v. P carle, 1 Str. 557. So where a bailee of goods who had a lien, delivered them to a carrier on account of the bailor, and afterwards stopped the goods in transitu, and got possession of them again, it was held that the lien did not revive, Sweet V. Pym, 1 East, 4 ; but it has been held that the lien of an insurance-broker (who has a general lien), revives on repossession of the policy. Whitehead v. Vaughan, Co. Bank. Law, 547, lih ed. Levy V. Barnard, 8 Taunt. 149.^ And where horses, on which a livery and stable-keeper had by agreement a lien, were fraudulent- ly taken out of his possession by the owner, it was ruled that the livery stable-keeper, having without force, retaken the horses, his lien revived. Wallace v. Woodgate, 1 R. and M. 193. Where the owner of a ship, having a lien on the goods, until the delivery of good and approved bills for the freight, took a bill of exchange in payment, and though he objected to it at the time, afterwards ne- gociated it, it was held that such negociation amounted to an ap- proval of the bill by him, and that his lien on the goods was waived. Horncastle v. Farran, 3 B. and A. 497.'' See Stevenson v. Blake- » 14 Eng. Com. Law Reps. 410. • 4 Id. 238. ' 15 Id. 308. " 2 Id. 447. » 4 Id. 52. w 5 Id. 356. 412 Trover. lock, 1 J\L andS. 535. Where the seller of goods recovered a ver- dict for goods bargained and sold, it was ruled by Lord EUenborough, that heliad not thereby waived his lien, though it ntiight have been otiicrwisc had he recovered a verdict for goods sold and delivered. HouJdUcli V. Des(wge, 2 Stork. 337.^ A lien is not destroyed though the demand in respect of which it arises is barred by the statute of limitations. ,Spcars v. Ilarlley, 4 Ksp. 81. Where goods, upon which the captain of a ship has a lien, are deposited in the king's warehouse in pursuance of the requisitions of an act of parliament, the lien is not thereby waived. Pci' Lord Kemjon, C. J., Ward v. Fellon, 1 East, 512 ; and see Wilson v. Kyjuer, 1 J\J. andS. 107. Ecidence in migitation of Damages.'] Although the defendant cannot under the general issue object that another part owner of the goods has not been joined as plaintiff, so as to defeat the action, see Bhxam v. Hubbard, 5 East, 420 ; yet he may give that fact in evidence in order to reduce the plaintitf's damages to the amount of his own share. Nelthorpe v. Darrington, 2 Lev. 113. In an ac- tion by a rightful executor against an executor de son tort, the latter may prove in mitigation of damages, that he has paid debts of the deceased. WhitehiJl v. Squire, Carth. 104, But where the defendant, who was appointed executor by a prior will, proved it, and after notice of a later will sold certain goods of the testator, it was held that the plaintiff, who was executor under the later will (the probate of the former being revoked), might recover the whole value of the goods so sold, and that the defendant could not give evi- dence of thcdue administration of the assets by himself WooUey v. Clark, 5 B. and A. 744,^ sed quccre. And it is said, that if the pay- ments made by the executor de son tort, amount to the full value of the sum to be recovered in the action of trover, the plaintiff shall be nonsuited, B. K. P. 48 ; but the authority cited for this position does not support it, and it is, as it seems, incorrect. Mountford v. Gibson, 4 East, 447, 2 Phill Ev. 175. Though a conversion cannot be purged, yet the defendant may show, in mitigation of damages, that he has returned the goods. Countess of Rutland's case, 1 Rol. Ab. 5. * 3 Eng. Com. Law Reps. 373. J 7 Id. 249. 413 EVIDENCE IN ACTIONS BY AND AGAINST PARTICULAR PERSONS. ACTIONS BY ASSIGNEES OF BANKRUPTS. In an action by the assignees of a bankrupt, the plaintiffs must prove, 1. The bankruptcy, and the plaintiffs' title to sue an as- signee, except in certain cases, in which such evidence is dispensed with. 2. The cause of action in the usual manner. Evidence of the bankruptcy under 6 Geo. IV. c. 16, s. 90 and 92.] By 6 Geo. IV. c. 16, s. 92, if the bankrupt shall not (if he Vi^as within the United Kingdom at the issuing of the commission) within two calendar months after the adjudication, or (if he was out of the United Kingdom), within twelve calendar months after the adjudication, have given notice of his intention to dispute the com- mission, and have proceeded therein with- due diligence, the depo- sitions taken before the commissioners, at the time of, or previous to the adjudication, of the petitioning creditor's debt or debts, and of the trading, and act or acts of bankruptcy, shall be conclusive evidence of the matters therein respectively contained, in all ac- tions at law, or suits in equity, brought by the assignees for any debt, or demand, /or tchich the bankrv/pt might have sustained any action or suit. Where there are some counts on causes of action on which the bankrupt might have sued, and others on which he could not, the proceedings under the commission are evidence, if the plaintiff^ elect to proceed only on those counts which the bankrupt might have sustained. Jones v. Fort, 1 M. and M. 196. The above section does not apply to commissions anterior to the act. Kayv. Goodwin, 6 Biiigh. 576.^ By the term conclusive evidence in this section, must be under- stood that no evidence is to be admitted to contradict the deposi- tions, the construction at first put upon Sir S. Romilly's act. Eden, 370. Before the late statute, it was held that the depositions were not conclusive, where on the face of them there did not appear to be a sufficient petitioning creditor's debt, &c. Brown v. Forrestall, Holt, 190," Cooper v. Machin, 1 Bingh. 426;* but under the above section it has been decided, that where no notice has been given to dispute a commission, and the proceedings and commission are put in, and there does not appear to be a sufficient petitioning credi- tor's debt, though there Is nothing to disprove such a debt, the » 19 Eng. Com. LawReps. 1C9. »3Id. C9. 1-81(1.367. 414 Actions by Assignees of Bankrupts, commission cannot be disputed. Macheath v. Coates, 4 Bingh. 34." Wliere the petitioning creditor's debt is proved by the deposition, it is not competent for the defendant to prove that the debt was a fraudulent contrivance between the bankrupt and the petitioning creditor. Youiig v. Timmiiht, 1 Croin. and Jew. 148. To make the proceedings evidence it must be shown that they came out of the custody of the solicitor to the commission, or the handwriting of the commissioners must be proved. Col/insoii v. HUlear, 3 Camp. 30 ; for which purpose the bankrupt himself, having obtain- ed his certificate and released the surplus, is a competent witness. Morgan v. Prijer, 2 B. and C. 14,'' As to producing the proceed- ings, vide ante, p. G4. It is only on actions or suits brought by the bankrupt's own assignees for a debt or demand for which he might have sued, that the depositions are made evidence, and therefore if the assignees of another bankrupt are petitioning creditors, and no- tice of disputing the petitioning creditor's debt is given, the deposi- tions under the latter commission are not evidence by this section. Muskett V. Drummond, \0 B. and C. 153. See Scaife v. Howard, 2 B. and C. 560,'= post, p. 417. By 6 Geo. IV. c. 16, s. 90, it is enacted that in any action by, or against, any assignee, or in any action against any commissioner, or person acting under the warrant of the commissioners, for any thing done as such commissioner, or under such warrant, no proof shall be required at the trial, of the petitioning creditor's debt or debts, or of the trading, or act or acts of bankruptcy, respectively, unless the other party in such action shall, if defendant, at or be- fore pleading, and if plaintiff, before issue joined, give notice in writing to such assignee, commissioner, or other person, that he in- tends to dispute some, and which of such matters, and in case such notice shall have been given, the judge may certify that the matter has been proved or admitted, which shall entitle the party to costs. Notice to dispute " the bankruptcy" is too general. It must speci- fy which of the three matters, trading, petitioning creditor's debt, and act of bankruptcy, is intended to be disputed. Trinley v. Un- win, 6 B. and C. 537.^ Under this section no proof whatever of the petitioning creditor's debt, trading, or act of bankruptcy, is required, unless proper no- tice has been given. Where the bankrupt was within the United Kingdom at the time of the issuing of the commission, and has given no notice to dispute the commission, the effect of the above clause is, that in cases where the bankrupt, if solvent, could have sued, and the defendant gives notice of his intention to dispute the bank- ruptcy, &c. the fact so disputed must be proved, but the deposi- tions under the commission are conclusive evidence of the matters contained in them. Earith v. Schroder, 1 M. and M. 26. Eden, 370. Where notice has been given only to dispute the act of bank- « 18 Eng. Corn. Law Reps. 330. ^ 9 Id. P.. ' 9 Id. 173. ' 15 Id. 248. Actions by Assignees of Bankrupts. 415 ruptcy, and the other side have read the depositions on the file to prove the trading and debt, the residue of the proceedings are not considered to be in evidence, and the counsel of the party contesting the commission has no right to inspect them. Black v. Thorpe^ 4 Campb. 191, Stafford v. Clarke, 1 C. and P. 26. The notice is not part of the defendant's evidence in the cause, but may be proved at the commencement of the plaintiff's case, and will immediately put him upon strict proof. Decharmy v. Lane, 2 Campb. 323. Evidence of bankruptcy under Q Geo. IV. c. 16, s. 90, 92 — service of notice.'] A notice served by delivering it to the clerk at the de- fendant's counting-house, before issue joined, without showing that it has come to the defendant's hands, has been held rightly served. Wedger v. Browning, 1 M. and M. 27, 2 C. and P. 523,^ S. C. If no notice has been delivered with the plea, and the plea is got back, under a false pretence, and redelivered with a notice, it seems to be insufficient. Lawrence v. Crowder, 1 M. and P. 511, 3 C. and P. 229,'> S. C. See also Folks v. Scudder, 3 C. and P. 232.' Ser- vice on the attorney is sufficient. Howard v. Ramsbottom, 3 Taunt. 526. Strict proof of title.'] Strict proof of the title of the assignees has been dispensed with in cases where the defendant's conduct has been an express or implied admission of their title. Eden, 354, see Mallby V. Christie, 1 Esp. 340, Watson v. Wace, 5 B. and C. 153;" Rankin v. Horner, 16 East, 191, stated ante, p. 27. Thus where the defendant had attended a meeting of the commissioners, and exhibited an account between him and the bankrupt, and after- wards made a part payment to the assignee on that account, it was held to be prima facie evidence that the plaintiff was assignee. Dickenson v. Coward, 1 B. and A. 077. So where the defendant on being applied to by the assignee, said he would call and pay the money, this was held to dispense with the usual proofs of the as- signee's title. Pope V. Monk, 2 C. and P. 112.' And an affidavit that a party is indebted to the deponent in the sum of 100/. and upwards and is become bankrupt, is, as against the deponent, con- clusive evidence of the bankruptcy. Ledbetter v. Salt, 4 Bingh."" 1 J\l. and P. 597, S. C, and see supra. Where the assignees are strangers to the record, and their title comes in accidentally, it must be strictly proved in the regular manner. Doe v. Liston, 4 Taunt. 741. But, if parties to the re- cord, though not named assignees, the proceedings will be sufficient evidence, unless notice has been given, if the other party is aware that they make title under the commission. Simmonds v. Knight, 3 Campb. 251, Rowe u. Lanl, Gow, 24." JVewport v. HolUngs, 3 C. and P. 223." So, though there are other defendants on the record, I 12Eng. Com. LawRcpj. 245. ''14 Id. 281. ' 14 Id. 281. ^n Id. 107. ' 12 Id. 60. '" 15 Id. 91. " 3 Id. 446. » 14 Id. 279. 416 ^^ctions by Assignees of Bankrupts. if these defendants have justified as servants of the assignees. Gilmanv. Cousins, 2 Stark. 182." Strict proof of title, what constitutes.'] Strict proof of the plain- tiffs' title as assignees requires evidence, 1. Of the petitioning creditor's debt. 2. Of the trading. 3. Of the act of bankruptcy. 4. Of the commission, and 5. Of the assignment. Evidence of petitioning creditor's debt, nature of and irhen ac' crued.'] The petitioning creditor's debt must be proved in the same manner as in an action against the bankrupt himself, Per Buller, J., Abbott V. Plumbc, Dougi. 217 ', and, therefore, where the debt arises on a bond, an ackno\yledgment of the debt by the obligor will not supersede the necessity of calling the attesting witness. Abbott V. Plumbe, DougJ. 216. It must appear that the debt was contracted at the time of the act of bankruptcy. Clarke v. Askew, 1 Stark. 458 (n). So where the petitioning creditor's debt arises on a promissory note, dated before the bankruptcy, the note must be proved to have existed prior to the act of bankruptcy, for the date is not even 'primd facie evidence of that fact, 2 Stark. Ev. 161, where it is said that the contrary was held in Taylor v. Kin- loch, 1 Stark. 175,1 upon a mistaken ' report of a case cited from memory. See 2 Stark. 594.'- But where a note was proved to be in existence before the docket was struck, and it bore date on the face of it before the act of bankruptcy, this evidence was consider- ed as prima facie proof that the note was in existence before the act of bankruptcy. Obbard v. Bletham, 1 M. and M. MSS. So if it can be shown that about the date of the bills goods were sold of corresponding amount. Coivie v. Harris, 1 M. and M. 141. So where the petitioning creditor is the indorsee of a bill, the indorse- ment must be proved to have been made before the commission issued, and the date of the bill affords no presumption as to the time of the indorsement. Rose v. Roiccroft, 4 Campb. 245. If the debt be proved to have existed before the act of bankruptcy, its continued existence up to the act will be presumed. Jackson v. Irwin, 2 Campb. 50. Unless there have been intermediate tran- sactions. Gresly v. Price, 2 C. and P. 48.' It must appear that the debt was contracted while the party was a trader, or if contracted before, was subsisting while he was a trader. Meggott v. Mills, 1 Ld. Rayrn. 287, Pleanriy v. Birch, 3 Campb. 234, Butcher v. Easio, Doiigl. 295. If there was a petitioning creditor's debt at the time of the act of banbruptcy, on which a commission might have issued, and there was a petitioning creditor's debt still existing at the time of the commission, it does not signify what happened in the interim, as to the payment of the first debt, the balance throughout r 3 Eng. Com. Law Rops. 305. 'i 2 Id. 344. ' 3 Id. 490. » 12 Id, 22. Jldions by j^ssignees of Bankrupts. 417 continuing sufficient for a petitioning creditor's debt. Shaw v. Har- vey, 1 M. and S. AJSS. Taking a security of a higher nature, after the act of bankrupt- cy, for a debt of an inferior nature, coi:tiacted before, will not prevent the original debt being a good petitioning creditor's debt. Ambrose v. Ciendon, 2 Str. 1042, Nor will the fact that the debtor has become insolvent, and included the debt in his schedule. Jellis V. J\Jountford, 4 B.and A. 25G.* See Ex parte Shuttleicorth, 2 Glynn and J. 68. And a debt upon an attorney's bill, not signed and de- livered according to the statute, is sufficient. Ex parte Siittony 11 Ves. 163, Ex parte Howe//, 1 Rose, 312. iJut a verdict for dama- ges in an action for breach of promise of marriage does not, before judgment, constitute a debt. Ex parte Charles, 14 East, 197; and where the debtor is taken in execution, there is no good debt to support a commission. Co/ien v. Cunniiigliam, 8 T. R. 123. Though it has been held in several cases that a debt barred by the statute of limitations is sufficient to support a commission, unless, perhaps, where the objection is taken by the bankrupt himself, Sicayne v. Wallenger, 2 Str. 746, Quantock v. Eng/and, 5 Burr. 2628, FovJer V. Browne, Co. B. L. 18, and see Mavor v. Pyne, 3 Bing/i. 285," 2 C. and P. Ql,^ S. C, yet the proof oi such a debt has been disallowed. Ex parte Dewdney, Ex parte Seaman, 15 Ves. 498, Ex parte Rof- fey, 19 Ves. 468, 2 Rose, 245, and see Gregory v. Hurri//, 5 B. and 'C. 341.- Where there is only one petitioning creditor there must be a debt due to him separately, for which he alone might maintain an action at law, and therefore a commission cannot be supported on the petition of one of two partners, to whom a joint debt is due. Buck/and v. JYewsame, 1 Taiint. 477. Where the petitioning creditor is assignee of another bankrupt, and the debt is due to him in that character, and his title comes incidentally in question, strict evidence of his title as assignee must be given, Doe v. Liston, 4 Taunt. 741 ; but, where in an action by an assignee no notice has been given under the statute to dispute the commission, the depositions under the commission are evidence of a debt due to the party, in the character in which he claims it, and no other evidence of the first bankruptcy will in such case be necessary. Scaife v. Howard, 2 B. and C. 560.» See Muskett v. Drummond, 10 B. and C. 153, ante, p. 414. Evidence of petitioning creditor's debt, amount of] The debt of the petitioning creditor must amount, if it is to one creditor, or one firm, to 100/., if it is to two, to 150/., if to more, to 200/., 6 Geo. IV. c. 16, s. 15, 100/. in notes, bought at \0s. a piece, is a sufficient debt. Ex parte Lee, 1 P. Wms. 782. Where a creditor to the amount of 112/., after notice of an act of bankruptcy, received 50/., it was • 6 Eng. Com. Law Reps. 420. "111(1.104. '12 Id. 41. "Hid. 251. « 9 Id. 178. 53 418 Actions by Assignees of Bankrupls. held, that as that payment was void, there was still a good peti- tioning creditor's debt. Mann v. Shepherd, 6 T. R. 79. Evidence of petitioning creditor's debt — admission of bankrupt.^ The admissions of the bankrupt himself are frequently given in evidence to establish the petitioning creditor's debt. Thus an en- try in the bankrupt's books, IVatts v. Thorpe, 1 Campb. 376, or an account signed by him charging hinisclf, Iloare v. Coryton, 4 Taunt. 5G0, is sufficient evidence of the debt, provided it be shown that the entry, or account, was made before the act of bankruptcy. An admission, by the bankrupt, of the debt, made after the act of bankruptcy, but before the issuing of the commission, has been de- cided to be inadmissible. Smallcomhe v. Bruges, M^Clel. 48, 13 Price, 130, S. C, Saunderson v. Laforest, 1 C. and P. 46.^ But where the debt was founded on a bill of exchange, of which the bankrupt was drawer, it was held that the bankrupt's declaration made after the act of bankruptcy, and before the commission, that the bill would not be paid, was admissible evidence to supply the proof of notice. Brett v. Levett, 13 East, 213, see M'Clel. 00, see also Robson v. Keynp, 4 Esp. 234, Doivton v. Cross, 1 Esp. 168. Evidence of petitioning creditor's debt — bills of exchange, and debts due on credit'] As a bill of exchange is a debt from the date of it, as against the drawer, it is sufficient to constitute a good pe- titioning creditor's debt, though not indorsed to the creditor till af- ter an act of bankruptcy, Macarty v. Barrow, 2 Str. 949, Glaister V. Hewer, 7 T. R. 498, Anon. 2 Wils. 135, Eden, 47 ; but if the cred- itor be indorsee, it must appear that the bill was indorsed to him before the commission issued. Rose v. Rowcroft, 4 Campb. 245. By 6 Geo. IV. c. 16, s. 15, every person who has given credit to any tra- der, upon valuable consideration, for any sum payable at a certain time, which time shall not have arrived when such trader committed an act of bankruptcy, may petition, or join in petitioning, whether he shall have any security in writing, or otherwise, for such sum, or not. Where A. having drawn a bill for 148/. in favour of B., to whom he was previously indebted in that amount, committed an act of bankruptcy before either the bill was due or had been presented for acceptance, it was held that such bill of exchange was a good petitioning creditor's debt, though subsequently to the commission it had been duly presented to and paid by the accep- tors. Ex parte Douthat, 4 B. and A. 07.^ Where the debt was an acceptance of the bankrupt, and the assignees had had notice to prove the consideration, it was held, that though they were not bound to prove the consideration until impeached, yet that not having adduced any evidence, and the jury, from circumstances of y 11 Enff. Com. Law Reps. 309. 'G Id. 354. Actions by Assignees of Bankrupts. 419 suspicion attached to the case, having found a verdict for the de- fendant, the court would not disturb that verdict. Abraham v, George, 1 1 Price, 423. Where two persons exchange acceptances, and before the bills are mature one of them commits an act of bankruptcy, there is not such a debt due from him to the other as will sustain a commission, before the other has paid his own accept- ance. Sarratt v. Austin, 4 TaipiL 200. Interest, where not ex- pressed in the body of the bill, cannot be added so as to make up the amount of the debt. Caineron v. Smith, 2 B. and A. 305, Ex parte Burgess, 2 B. Moore, 745, 8 Taunt. 660," S. C. A bill for 100/. though not due till after the act of bankruptcy, is a good pe- titioning creditor's debt to support a commission against the draw- er, and the rebate of interest is not to be considered, for it is a pre- sent debt to the amount of 100/. Brett v. Levett, 13 East, 213. Evidence of petitioning creditors debt — prior act of bankruptcy.] By 6 G. IV. c. 16, s. 19, no commission shall be deemed invalid by reason of any act of bankruptcy prior to the debt of the petition- ing creditor, provided there be a sufficient act of bankruptcy sub- sequent to such debt. Before this statute, though the bankrupt himself could not, yet a debtor to the estate might, in an action by the assignees, upon proof of an act of bankruptcy prior to the pe- titioning creditor's debt, and of a sufficient debt upon which a com- mission might be supported, resist the claim and defeat the commis- sion. Eden, 43. Evidence of trading.'] By 6 Geo. IV. c. 16, s. 2, it is enacted, that all bankers, brokers, and persons using the trade or profession of a scrivener, receiving other men's monies or estates into their trust or custody, and persons insuring ships, or their freight, or other matters, against perils of the seas, warehousemen, wharfing- ers, packers, builders, carpenters, shipwrights, victuallers, keepers of inns, taverns, hotels, or coffee-houses, dyers, printers, bleachers, fullers, calenderers, cattle or sheep salesmen, and all persons using the trade of merchandize by way of bargaining, exchange, barter- ing, commission, consignment, or otherwise, in gross or by retail, and all persons who, either for themselves, or as agents or factors for others, seek their living by buying and selling, or by buying and let- ting for hire, or by the workmanship of goods or commodities, shall be deemed traders liable to become bankrupt ; provided that no farmer, grazier, common labourer, or workman for hire, receiver general of the taxes, or member of or subscriber to any incorpora- ted commercial or trading companies established by charter or act of parliament, shall be deemed as such a trader liable by vir- tue of this act to become bankrupt. »4Eny. Com. Law Reps. 241. 420 .^cliom by Assiii:nccs of Bankrupts. Evidence of a trading which ceased before the 6 Geo. IV. c. 10, took ellcct, will not support a coinmission of bankrupt issued after that time. Surtces v. Kllison, H mul C. 750." The declarations of the bankrupt, made before the bankruptcy, have been admitted to prove the trading, Parker v. Earlier, 1 B. and P.O; but the propriety of receiving such evidence has been doubted. Bromlct/ i\ kl)i^, 1 11. and J\J. 228. Where the question was as to the intention with v^'hicli the party had made certain purchases, Abbott, C. J. held that his declarations, at the time of. the purchase of the goods, as to the mode in which he intended to dispose of them, were admissible to prove the intention. Gale v. Half knight, 3 iitark. 50.-= Evidence cf trading — what persons are traders icithin the gener- al 7CG?-ds of a G. Il\ c. 16, s. 2.] To prove a person a trader, evi- dence of both buying and selling is necessary. Eden, 3. But where it appeared that the party had ordered goods for the pur- pose, as he stated, of sending them abroad, and he said that he would give other goods in exchange for them, on it being objected that there was no evidence of selling, Per Abbott, C. J. " I cannot say that if a man buys, and represents himself as a dealer, and of- fers goods in exchange, that he does not buy to sell again. At least I must leave it to the jury, I cannot nonsuit upon it." Millikin v. Brandon, 1 C. a?id P. 380." The quantum of dealing is immate- rial. Pai?nan v. Faughan, 1 T. R. 572, Newland v. Bell, Holt, 241,'" see Gale v. Halfknight, 3 Stark. 56.'^ Thus the purchase of one lot of timber and the sale of a portion of it, will make a man a trader. Hnlroyd v. Gwi/nne, 2 Taunt. 176. But such occasional acts as a schoolmaster selling books to his own scholars only ; Valentine v. Vavglian, Peake, 75; a colonel of a fencible regiment selling horses occasionally at Tattersall's, Ex-parte, Blackmore, 6 Ves. 3 ; or a person who keeps hounds buying dead horses, and sel- ling the skins and bones, Summersett v. Jarvis, 3 B. and B. 2,' are not evidence of trading. And where a person buys more of an ar- ticle than he wants, and sells the surplus, he does not thereby be- come a trader. .See Newland v. Bell, Holt, 222."^ So a cowkeeper selling his cows unfit for use. Carter v. Dean, 1 Swans. 04. So a farmer buying and selling articles incidental to the occupation of his farm, as where a farmer buys pigs, feeds them on his stubbles, and resells them, some after a week, some after longer periods. Patten v. Browne, 7 Taunt. 409.5 See Martin v. Nightingale, 3 Bingh. 421." But where a farmer bought horses unfit for farming, and resold them, and avowed his intention to take out a license and become a horse-dealer, these facts were held to be evidence of trading. Wright v. Bird, 1 Price, 20. A drawing and re-drawing of bills of exchange and promissory notes, if there * 17 Eng-. Com. Law Reps. 491. <= 14 Id. 162. * 11 Id. 426. '3 Id. 81. 7 Id. 322. e 2 Id. 1S7. ^ 13 Id. 33. Actions by Assignees of Bankrupts. 421 be a continuation of it with a view to gain a profit on the exchange, is a trafficking in exchange and trading. Richardson v. Bradshaw, 1 Atk. 128. See Hanhey v. Jones, Coicp. 745, Eden, 4. Where the business of brickmaking is carried on as a mode of enjoying the profits of a real estate, it will not make the party Hable to the bankrupt law; and there is no difiference whether the party is a termor, or entitled to the freehold ; but where it is carried on sub- stantially and independently as a trade, it will do so. Eden, 4, cit- ing Sutton V. Wheeley, 1 East, 442, ex-parte Gallimore, 2 Rose, 424, ex-parte Harrison, 1 Br. C. C 173, Parker v. Wilts, ih. (n). And in a late case it was ruled, that the owner of land who makes bricks from the clay of it, and buys chalk for the more convenient burning of the bricks, is not a trader. Paul v. Doiding, 1 M. and M. 263, Hearne v. Rogers, 9 B. and C. 577.- See also Ex-parte Burgess, 2 Gl. and J. 183. Whether a trader who has ceased to buy, but is selling off his stock, is liable to a commission, depends upon the circumstance whether there be an intention to exercise or resume the trading, which is a question for a jury. Ex parte, Paterson, 1 Rose, 402, Eden, 5. If a man has carried on a manu- factory, his ceasing actually to work it does not for that reason make him cease to be an object of the bankrupt laws; if he con- tinues to solicit orders, and holds himself out to the world as capa- ble of executing orders in the course of his trade, he continues li- able to be made a bankrupt. Per Ld. Ellentmrough, Wharam v. Routledge, 5 Esp. 236. And where a person was proved to have been a trader by buying and selling fish during one season. Lord Ellet)borough said that it must be presumed he still carried on his business in the usual way, and continued a trader down to the time of his bankruptcy. Heanny v. Birch, 3 Caiwph. 233, and see Pont V. Dowling, 1 M and J\L 268. Where business had been carried on by the party, in partnership with another, which part- nership had been dissolved some years before, and no act of trading had been done for two or three years before the time when the petitioning creditor's debt accrued, but the concerns had not been ultimately wound up, and part of the stock still remained in the warehouse of the parties undisposed of, the jury found, under the direction of the court, that the trading continued. Executors of Blackhouse v. Tarleton, coram Ld. Ellenborough, 2 Stark. Ev. 143. An executor disposing of his testator's stock is not a trader, though he purchase other articles to make it marketable ; but if he in- crease the stock, and continue to sell, he becomes a trader. Ex parte JVutt, 1 Atk. 102, ex-parte Garland, 10 Ves. 120, Eden, 5. An il- legal trading will support a commission. Cobb ri. Symonds, 5 B. and A. 516," but see Millikin v. Brandon, 1 C. and P. 381.' Buy- ing and selling land, or any interest in land, is not a trading. Poi-t V. Turton, 2 Wils. 169. * 17 Eng. Com. Law Reps. 449. k 7 IJ. 179. 1 1 1 Id. 426. 422 Actions by jissignees of Bankrupts. Under the general statenrjent in the commission that the bank- Tupt got liis living by buying and selling, any species of trading may be given in evidence. Hale i\ Small, 2 B. and B. 25.'" Eindcnce of trading — ichat per sons arc within the particular words ofG G. IV. c. 16, s. G.] A pawnbroker is a broker within the statute. Rawlinson v. Pearson, 5 B. and A. 124." So a ship- broker, Pott V. Turner, 6 Bi7igh. 702." Whether an insurance broker be within the same term has not been determined. Ex parte Steve/is, 4 Madd. 250. See Pott v. Turner, 6 Bingh. 708.° It seems probable that whenever it becomes necessary to determine the point, it will be resolved in the affirmative. Eden, 7. In order to make a man a money scrivener, it must be an occupation to which he resorts in order to gain his living. In the course of this occupa- tion he must receive other men's monies into his trust or custody. He must carry on the business of being trusted with other people's monies, to lay out for them as occasion offers. Per Gibbs, C. J., Adams v. Malkin, 3 Campb. 534. Evidence of act of bankruptcy.'] By 6 G. IV. c. 10, s. 3, it is enacted, that'if any such trader {oide supra) shall depart this realm, or being out of this realm shall remain abroad, or depart from his dwelling-house, or otherwise absent himself, or begin to keep his house, or suffer himself to be arrested for any debt not due, or yield himself to prison, or suffer himself to be outlawed, or procure him- self to be arrested, or his goods, money, or chattels, to be attached, sequestrated, or taken in execution, or make, or cause to be made, either within this realm or elsewhere, any fraudulent grant or con- veyance of any of his lands, tenements, goods, or chattels, or make, or cause to be made, any fraudulent surrender of any of his copy- hold lands or tenements, or make or cause to be made, any fraudu- lent gift, delivery, or transfer of any of his goods or chattels, every such trader doing, suffering, procuring, executing, permitting, mak- ing, or causing to be made, any of the acts, deeds, or matters afore- said, with intent to defeat or delay his creditors, sliall be deemed to have thereby committed an act of bankruptcy. And by section 4 it is enacted, that where any such trader shall, after this act shall have come into effect, execute any conveyance or assignment by deed, to a trustee or trustees, of all his estate and effects, for the benefit of all the creditors of such trader, the execu- tion of such deed shall not be deemed an act of bankruptcy, un- less a commission issue against such trader within six calender months from the execution thereof by such trader, provided that such deed shall be executed by every such trustee within fifteen "> 6 Eng. Com. Iost. A debtor being insolvent and in prison went under a day rule to receive a sum of money due to him from a fire office ; a creditor met him there and demanded and received, out of the money received, payment of his debt, having no notice of the debtor's insolvency and imprisonment. Eight days afterwards a commission issued against the debtor. It ■was held that this was no fraudulent preference. Churchill v. Crease, 5 Bingh. 177.1, A trader had property to a considerable amount standing in the custom-house in his own name, but in fact purchased on account of A. A bill deposited with A. by the trader, as a security, appearing to be a forgery, A. insisted on having the property transferred to himself, which was done on the 14th and 15th of January. On the 17th the trader became bankrupt. Lord Ellenborough said that the question for the jury was, whether the transfer was voluntary, or made under the apprehension that a degree of force, civil or criminal, was about to be applied. De Tastetv. Carroll, 1 Stark. 83,'' and see Atkins v. Seward, Manning's Index, 62, 63. But where a trader being pressed by a creditor ibr payment, or security, one or other of which he said he would have, gave a bill of sale of certain wools and cloths in a mill, apparent- ly the whole of his stock, and immediately left his business and home, and became bankrupt, it was held that, inasmuch as the act done did not redeem the trader, even from any present difficul- ty, which is the ordinary motive for such an act when really done under the pressure of a threat, it was evidence that it was not done under such a pressure but voluntarily, and with a view to prefer the particular creditor in contemplation of bankruptcy. Thornton V. Hargreaves, 7 East, 544. The acceptor of a bill of exchange 1 15 Eng. Com. Law Reps. 409. ' 2 Id. 305. Jidions by ^^ssigTiees of Bankrupts. 433 two days before the expiration of the time for which the bill was originally drawn, called upon the indorser, and informed him pri- vately that he was insolvent, the indorser insisted on being paid the amount of the bill, offering at the same time to become security to the creditors for so much as the estate should produce, whereupon the acceptor paid it, and four days after became bankrupt. It ap- peared also, that the bill had been altered so as to make it fall due before this transaction, but without the indorser's knowledge. These circumstances were held to afford evidence of a fraudulent preference. Singleton v. Butler, 2 B. and P. 283, see Bayley v. Bal- lard, 1 Campb. 416, supra. Where a trader, being pressed, con- veyed estates in trust to sell and pay the pressing creditor, with a further trust to pay debts to certain relatives, it was held a prefer- ence in contemplation of bankruptcy. Morgan v. Horseman, 3 Taunt. 241. A sale of part of a trader's effects may be an act of bankruptcy, if the sale be in fact fraudulent, without reference to its being made in contemplation of bankruptcy. Thus if a sale take place under such circumstances that the buyer as a man of business and under- standing ought to suspect and believe that the seller means by it to get money for himself in fraud of his creditor, it is fraudulent and an act of bankruptcy. Cook v. Caldecott, 1 M. and J\I. 522. Evidence of act of bankruptcy — lying in prison. '\ This act of bankruptcy does not relate to the first day of the imprisonment. Higgins V. M'Adam, 3 Young and Jar. 1. Moser v. JVeicman, 6 Bingli. 556.* See Tucker v. Barroic, 1 J\I. and M. 137. In order to render a lying in prison twenty-one days an act of bankruptcy, the arrest must be for a subsisting legal debt, Eden, 35. A pen- alty due to the crown has been considered a sufficient debt. Cobb V. Symonds, 5 B. and A. 516.' The time of lying in prison com- mences from the first arrest, the day of arrest being included. Glassington v. Raldins, 3 East., 407, 3 Stark. 73." Where bail is put in, and the defendant surrenders in discharge of his bail, the time is computed from the surrender. Tribe v. Webber, Willes, 464 ; but, where the bankrupt was arrested in Kent on the 31st March, and on the 8th May brought by habeas corpus to be bailed, and on the road to the judge's chambers, was permitted to call at his at- torney's house, which was out of the county of Kent, whence he was carried directly to a judge's chambers, to be bailed, and was bailed accordingly, and immediately surrendered by the bail, .it was held that the act of bankruptcy had relation to the Cist March. Ross V. Green, 1 Burr. 437. If the defendant is suffered to go at large after the arrest, and afterwards returns into custody, the time is computed from the return. Barnard v. Palmer, 1 Campb. 509. Where the defendant, at the time of the arrest, was sick, and con- • 19 Enr. Com. Law Rops. 165. ' 7 Id. 179. " 14 Id. 1C5. 55 434 jiclions by Jlssignees of Bankrupts, sequently suffered to remain some time in his own house, the key of which was kept by the officer's follower not named in the war- rant, the time was held to run from the arrest. Stevens v. Jackson, 4 Camph. 1G4, 6 Taunt. 106,^ S. C. And so where the party has the benefit of day rules during the period. Soames v. Watts, 1 C. and P. 400/^ If a commission issues before the time expire, it cannot be supported, though it would be no objection that the re- quisite time had not expired when the docliet was struck. Gordon V. Wilkinson, 8 T. R. 507, Wydoum's case, 14 Ves. 80, Ex-jmrte Dufresne, 1 V. and B. 51. The arrest may be proved by an ex- amined copy of the writ, and return of cepi corpus, or by proof of the writ, the warrant, and the arrest, vide ante, -p. 304, The fact of lying for the twenty-one days in prison may be proved by the production of the prison books. Salte v. Thomas, 3 B. and P. 188, ante, p. 112. The cause of the commitment may be proved by production of the committitur. Ibid. Evidence of act of banhruptcy— filing petition to take the benefit of the insolvent act.^ This act of bankruptcy is introduced in the insolvent act, 7 Geo. IV. c. 57, and is not contained in the new bankrupt act. The office copy of the petition is made evidence of the act of bankruptcy, but it is not to be an act of bankruptcy, unless the party be declared bankrupt before the time advertised in the gazette for hearing the petition, or within two calendar months from the filing of it, within which time it will have the ef- fect of avoiding the assignment under the insolvent act. Evidence of the comynission and assignment, ^c] By 6 Geo. IV. c. 16, s. 96' it is enacted, that in all commissions issued after this act shall have taken effect, no commission of bankruptcy, ad- judication of bankruptcy by the commissioners, or assignment of the personal estate of the bankrupt, or certificate of conformity, shall be received as evidence in any court of law or equity, unless the same shall have been first so entered of record as aforesaid {see sect. 95), and the Lord Chancellor may, upon petition, direct any depositions, proceedings, or oliier inaltcr ielating to commissions of bankruptcy, to be entered of record as aforesaid. Provided, that upon the production in evidence of any instrument so directed to be entered of record, having the certificate thereon purporting to be signed by the person so appointed to enter the same, or his dep- uty, the same shall, without any proof of such signature, be receiv- ed as'evidence of such instrument having been so entered on record as aforesaid. And by section 97 it is enacted, that in every action, suit, or issue, office copies of any original instrument, or writing, filed in the office, or officially in the possession of the Lord Chancellor's ' 1 En^ Com. Law Reps. 325. «- 1 1 Id. 436. Actions by Assignees of Bankrupts. 435 secretary of bankrupts, shall be evidence to be received of every such-original instrument or writing respectively. The commission is proved by producing it under the great seal, with the certificate of enrolment thereon, as mentioned above. The assignment ought, in strictness, to be proved by production of the deed with the certificate of enrolment, and evidence of the execu- tion by the commissioners, but by the general courtesy of practice in the courts, it is admitted, unless notice to dispute it has been given. Tucker v. Barrow, 1 M. and M. 137. Read v. Cooper, 5 Taunt. 89," Eden, 353. However, in the case of Hunt v. Connor, 2 Chiity, Coll Stat. 110, Lord Tenterden was inclined to think the bargain and sale (where necessary to be proved, in actions relating to the bankrupt's real property) must be produced and proved in the same manner as other deeds; and see Gomersal v. Serle, 2 Y. and J. 5. The new bankrupt act is silent as to the time of enrol- ment, but by 27 Hen. VIII. c. 16, the deed must be enrolled within six months after its date, or it becomes null and void. Tliojnas v. Pophani, Dyer, 218 {b). The title of the assignees does not relate back to the date of the bargain and sale, but only to the time of en- rolment, and therefore, in ejectment, where the demise is laid be- tween the date of the indenture and the enrolment, the assignees cannot recover. Perry v. Bowers, T. Jones, 196. The indorsement on the bargain and sale signed by the proper officer will be conclu- sive evidence of the enrolment, and of the time when it was en- rolled. Kinnersley v. Orpe, Dougl. 56. R. v. Hooper, 3 Price, 495. If, in pursuance of the new act, sec. 96, the Chancellor has di- rected any depositions, proceedings, or other matters relating to the commission to be entered of record, as the officer is not authorised to make copies, it will of course be necessary in such cases to have an examined copy of the record. Eden, 353, 2 Phill. Ev. 326. By 6 Geo. IV. c. 16, s. 98, all commissions, conveyances, and other instruments relating to the estates of bankrupts, are from 1st Sept. 1825, exempted froni stamp duty. Evidence with regard to the title of assignees under joint and se- parate co77imissions, SfC.'\ Vl^here separate commissions have been issued against several persons, and the same persons are appointed assignees under each, they may describe themselves as assignees of those bankrupts generally, and may give evidence of a joint demand due to all the bankrupts, Scott v. Franhlin, 15 East, 428, Streat- field V. Halliday, 3 T. R. 779, 2 Saund. 47, o (n), but in such action they cannot recover also for separate demands due to each of the bankrupts. Hancock v. Haywood, 3 T. R. 433. And where there are separate commissions against several partners, and different assignees under each commission, in declaring for a joint debt the » 1 Eng. Com. Law Reps. 2G. 43G Actions by Assignees of Bankrupts. assignees must not describe themselves as joint assignees, but as as- signees of each bankrupt respectively. Ray v. Davis, 8 Taunt. 131/ 2 B. Moore, 3, S. C. The assignees under a joint commission against A. and J3. in suing on a separate contract made with A. may describe themselves generally as the assignees of A. without notic- ing 1?. Slouchonse v. DaSyha, 3 Campb. 399, Harvey v. Morgan, 2 Stark. 17.'^ And the assignees under a joint commission against two partners may recover in the same action debts due to the part- ners jointly, and debts due to them separately. Graham v. Mul- casier, 4 Bivgli. 115." But assignees under a joint commission against A. and B. who have committed acts of bankruptcy at differ- ent times, cannot recover money received by the defendant between the acts of bankruptcy, either as money had and received to the use of the ])ankrupts, oV to the use of the assignees. Hogg v. Bridges, 8 Taunt. 200." Where the assignees of two partners declared in trover upon the possession of the bankrupts only, and it appeared in evidence that the greater part of the goods in question belonged to one of the partners only, before the commencement of the partner- ship, and had never been brought into the partnership fund, and that the residue formed part of the joint estate. Lord Kenyon held that the plaintiffs could recover the residue only, whereas, if there had been a count on the possession of the assignees, as it was a joint commission, and the assignment under such commission passes both joint and separate effects, the whole might have been recover- ed. Cock V. Tunno, Sehv. M'. P. 1316, and see 2 Saund. 47, o {n). Where the appointment of an assignee is vacated by the Chan- cellor and a new assignee is appointed, the latter is assignee by re- lation, and may sue in his own name as assignee on a contract made by the former assignee. Aldritt v. Kettridge, 1 Bingh. 355.° Evidence in particukir actions by assignees ofhanTtrupts.'] In many cases of transactions between the bankrupt and others, after an act of bankruptcy committed, the assignees have the option, either of adopting the contract made by the bankrupt, and suing the party in an actionof assumpsit, or of disaffirming the contract, and suing him for damages in an action of trover. They cannot, hovvever, disaffirm the transaction, if it appears that they have once affirmed it. Brever v. Sparroir, 7 B. and C. 310.* Therefore, where assignees had recovered a sum of money from the bankrupt's banker, which had been received by him, and the amount of which had been paid over to a creditor of the bankrupt, with a knowledge of the bank- ruptcy, it was held that they could not sue the creditor who had re- ceived it; for having disaffirmed the banker's acts in the former J 4 Eng. Com. Law Reps. 4.'->. ^ 2 Id. 222- » 13 Id. 367. " 4 Id. 70. •8Id.'34(>. ''14 Id. 60. Actions bjj Assig7iees of Bankrupts. 437 action, they could not in the present suit affirm them as payments of the bankrupt's money. Vernon v. Hanson, 2 T. R. 287. So where the bankrupt, before his bankruptcy, liad purchased goods on credit, and re-sold them, fraudulently, at under-prices, it was ruled that assumpsit for goods sold and delivered could not be maintained by the assignees against the purchaser to recover the difference in value, which would be both to affirm and disalirm the contract. Burra v. Chirh, 4 Ca?npb. 355. Money had and re- ceived has been held to be maintainable against a person, who, after taking the goods of the bankrupt in execution after an act of bankruptcy, has taken them under a bill of sale from the sheriff. Reed v. James, 1 Stark. 134.^ And where a bankrupt, after an act of bankruptcy, contracted with a factor, to whom he had de- livered goods for sale, and who had accepted a bill upon the strength of the goods, to return the goods if he would return the bill, and did return the bill, it was ruled that the assignees might adopt this contract and recover against the factor for the non-de- livery of the goods. Butler v. Carver, 2 Stai'k. 433.*^ Where the goods of the bankrupt have been converted by the defendant, either before or after the bankruptcy, the assignees may recover their value in an action of trover. Where there has been a tortious taking since the bankruptcj'^, such taking is a sufficient conversion ; but where there has been a collusive sale of the goods by the trader in contemplation of bankruptcy, there will be no conversion without evidence of a demand and refusal. JVixon V. Jenkins, 2 H. B. 135, ante, p. 405. In some cases, although trover will lie, yet it is necessary to bring assumpsit, in order to recover substantial damages. Thus, where after his bankruptcy the bankrupt drew a check in favour of one of his creditors, upon his bankers, who paid the check, it was held that the assignees could not recover the amount of the money in trover against the creditors, but only the value of the paper. Mattheiv v. ShericeU, 2 Taunt. 439, and see Walker v. Laing, 7 Taunt. 568.^ A sheriff who seizes and sells the goods of the bankrupt after an act of bank- ruptcy committed, is liable in trover, although he had no notice of the act of bankruptcy. Potter v. Starkie, cited- 4 M. and S. 260. Evidence in particular actions — as to reputed ownership.'] By 6 Geo. IV. c. IG, s. 72, if any bankrupt at the time he becomes bank- rupt, shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition, any goods or chattels, whereof he was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition, as owner, the commissioners shall have power to sell the same for the benefit of the creditors. All personal goods and chattels are within the statute, as ships, •? Eng. Com. Law Reps. 327. '. "5 Id. 417. e2I(l. 221. 438 Actions by Assignees of Bankrupts. Stephens v. Sole, cited 1 Ves. 352, Ex parte Burn, 1 Jac. and W. 378; and utensils of trade, Lingard v. Messiter, 1 B. and C. 308," Sinclair v. Stephenson, 2 Bivgh. 524,' unless such utensils are let, and there is a usage of trade for the utensils to be let, Hor7i i% Baker, 9 East, 215,239; so stock, Ex parte Richardson, Buck, 480 ; bills of exchange, Hornbhu-er v. Proud, 2 B. and A. 327 ; policies of insurance, Falkener v. Case, 3 Br. C. C. 125; shares in a public company, Kelson v. London Ass. Co., 2 S. and S. 292 ; and in a newspaper, Longman v. Tripp, 2 J\\ R. 67 ; have been held to be within the statute. In order to bring the case within the statute the assignees should, in general, give some evidence beyond that of mere possession. Where the bankrupt has once been the owner of the property in question, the mere fact of possession may, it is said, raise a pre- sumption that he continues in possession as reputed owner ; but where the bankrupt has never been the real owner, possession may not of itself show him to be reputed owner, and it would then be necessary for the assignees to establish that fact by other evi- dence. Lingard v. Messiter, 1 B. and C. 308.'' Where it appears in evidence that, in some instances, articles used in colleries belong to the tenants, and that in others they do not; that, though in some cases the landlord, in demising colleries, permits the lessee, on certain conditions, to have the use of the fixtures and other things during the demise, yet that in other instances they belong absolutely to the lessee ; then if the possession of such things is consistent with the fact of a person being absolute owner, and also of his not being absolute owner, the mere possession of such things ought not to raise an inference in the mind of any cautious person acquainted with the usage that the person in possession is the owner. Per Abbott, C. J., Storer v. Hunter, 3 B. and C. 376," see Thackthwaite v. Cock, 3 Taunt. 487, post. In order to prove the bankrupt reputed oicner, evidence of reputation is admissible, Oliver V. Bartlett, 1 B. and B. 269 ;' and, on the other hand, evidence of a contrary reputation is admissible for the defendant. Gurr. v. Rutton, Holt. 327."' Thus, evidence of the bankrupt being in pos- session of furniture, &c., under an agreement which was notorious in the neighbourhood, was held to take the case out of the statute. duller V. Moss, 1 M. and S. 335. Evidence of reputed ownership ''at the time he becomes bank- rupt:''] Goods which have come to the possession of the bankrupt after the act of bankruptcy, are not within the statute. Lijon v. V/eldon, 2 Bingh. 334." So if the goods are taken out of the pos- session of the bankrupt, before the act of bankruptcy, they will not pass to the assignees. Thus where the purchaser of goods lying at a wharf received a delivery order from the seller, but suf- fered them to remain in the name of the seller for several months, b 8 Eng. Com. Law Reps. 83. i 9 Id. 505. MO Id. 117. ' 5 Id. 81. "■a Id. 121. » 9 Id. 424. mictions by Assignees of Bankrupts. 439 during which time the seller disposed of a part, till, upon notice of the seller's insolvency, the purchaser had the goods transferred into his own name nine days before the seller's bankruptcy, it was held that the goods did not pass under the statute. Jones v. Dwyer, 15 East, 21. So where the purchaser took possession the day be- fore the bankruptcy. Arbouin v. Williams, R. and M. T2 ; bid see Darby v. Smith, 8 T. R. 82, 15 East, 26. But a removal on the same day, but before the act of bankruptcy, will not take the case out of the statute. Arbouin v. Williams, R. and M. 72. Evidence of reputed ownership — " by consent and permission of the true oivner."'} The property of infants, who cannot consent, is not within the statute. Finer v. Cadell, 3 Esp. 88. So stock, transferred by the accountant general into the name of the mortga- gor, without the privity of the mortgagee, will not pass. Ex parte Richardson, Buck, 480. But where a trustee sold and let the pur- chaser into possession before payment, the case was held to be within the statute, for by the '• true owner," the legal owner is intended. Ex parte Dale, Buck, 365. Evidence of reputed ownership — " have in his possession, order, or disposition."'] Where a warrant was directed to a trader's ser- vant and another person, as special baihfTs, who took possession of the goods in the shop, but the business, without the trader's inter- ference, was carried on apparently as usual, it was held that the possession of the servant was the possession of the master, and that the case was within the statute. Jackson v. Irvin, 2 Campb. 48. Toussaint v. Hartop, Holt. 335 ;" and see Doker v. Hasler, 2 Bing. 479.1' Where a trader gave a creditor an order to receive a cer- tain sum of money in thehandsof A., whomhe directed to transmit it to the creditor, and whilst the money was in the hands of the carrier the trader became bankrupt, Lord EUenborough was of opinion, that while the money was in the hands of the carrier the property remained unaltered, and that the case was within the statute. Hervey v. Liddiard, 1 Stark. 123.'' But the possession of a pawnee is not the possc.'^sion of the bankrupt pawnor, so as to bring the goods pawned within the statute. Greening v. Clerk, 4 B. and C. Sie.-- Where the goods were by agreement left in the vendor's possession, but the purchaser marked them with his ini- tials, they were held to be within the statute, Knowles v. Horsfall, 5 B. and A. 134,' Lingardv. Messiter, 1 B. and C. 308 ;' but, where wine sold by the bankrupt was, for the purchaser's convenience, bottled and deposited in the bankrupt's cellar, set apart in a parti- cular bin, marked with the purchaser's seal, and entered in the bankrupt's books as belonging to the purchaser, it was held not to be within the statute. Ex parte Marrable, 1 G. and J. 402. Car- • 3 Eng. Com. Law Reps. 122. p 9 Id. 488. i C Id. 323. ' 10 Id. 341. » 7 Id. 46. ' 8 Id. 83. 440 Actions by Assignees of Bankrupls. ruthers v. Payne, 5 Bing/i. 270." So where A. (lepositcd vvitli B. as a security, certain warrants of the West-India Dock Company for sugars deposited in their warehouses, and entered in his nanne in their books, and the company assented to tiie transfer, and A. afterwards became bankrupt, it was held that the sugars did not pass to A.'s assignees, as the transfer of the warrants was a com- plete transfer of the possession before the bankruptcy. Lucas v. Dorrien, 1 B. Moore, 2d.^ If a symboHcal delivery only can be made, it is suHicient to take the case out of the statute. Manton v. Moore, 7 T. R. (57. Mair v. Glemde, 4 M. and S. 240. Broicn v. Heathcote, 1 Atk. IGO. Where a person entitled to take out let- ters of administration neglected to do so, but remained in posses- sion of the goods of the intestate, and became bankrupt, the case was held within the statute. Fox v. Fisher, S B. and A. 135.' Where A., a dyer, having purchased a plant of B., resold it to him, and B. never took actual possession, but demised it to A. for three years, during which time A. became bankrupt, the plant was held to pass to his assignees. Bryson v. Wylie, 1 B. and P. 83 {a). So •where a creditor purchased under a bill of sale from the sheriif, cer- tain machinery of his debtor taken in execution at his suit, and having marked them with iiis initials, demised them to his debtor, it was held, that as the change of ownership was not notorious, the machinery passed to the assignees of the debtor. Lingard v. Messiter, 1 B. and C. SOS.'' See Storer v. Hunter, 3 B. and C. 368,' Horn V. Baker, 9 East, 215, Lingham v. Biggs, 1 B. and P. 82. Where a testator directed, in case his son should carry on his trade, that his lease and furniture should not be sold, but that his trustees should permit his widov/ and children to reside in his dwelling- house, and have the use of the furniture, it was held that the fur- niture did not pass to the assignees of the mother and son, who had carried on the trade. Ex parte Martin, 2 Rose, 331. So furni- ture left to tiustees to be enjoyed with a mansion-house, and not to be removed without the leave of the trustees. Earl of Shafts, v. Russell, 1 B. and C. 666.* So where household furniture and stock, in pursuance of an agreement for sale of a dwelling-house, and the household furni- ture and stock therein, were left in the dwelling-house, in the pos- session of the seller, for three months after the sale, they were held not to be in his order and disposition on his becoming bankrupt within the three months, the sale being notorious in the neighbour- hood. Mailer v. Moss, 1 M. andS. 335. But where a house was let with a covenant to determine the lease on the lessee committing an act of bankruptcy, and by another deed the furniture of the house was demised subject to a similar covenant, it was held that the furniture passed to the assignees of „ 15 Eng. Com. Law Rcpe. 417. ' 2 Id. 105. " 3 Id. 213. « 8 Id. 83. y 10 Id. '117. '8 Id. 17t.:. Actions by Jlssignees of Bankrupts. 411 the lessee, who became bankrupt, the jury having found that he was the reputed owner of the furniture. Hickenbotham v. Groves, 2 C. and P. 492.» Where a trader authorized a broker employed by him to distrain, to pay a debt due to him by a third person, and the broker prom- ised such third person to pay him the same, it was held that the assignees could not recover the amount of such debt, although he did not pay it until after commission issued. Bedford v. Pickering, 3 C. and P. 90." Goods sent upon sale or return to a trader, are within his posses- sion, order and disposition, and pass to his assignees. Livesay v. Hood, 2 Campb. 83. And where there was a custom that the pur- chasers of hops should leave them in the vendor's warehouse for the purposes of sale, undistinguished from his other stock, they were held to pass to his assignees. Thachihwaite v. Cook, 8 Taunt. 487; see 5 B. and A. 144,'' 3 B. and C. 37G;« but where goods sent on sale or return, the trader to return such as he should not approve of, arrived only the day before the trader's bankruptcy, they were held not to pass to his assignees, for he should have been allowed a reasonable time to have selected such goods as he was disposed to retain. Gibson v. Bray, 8 Taunt. IQ'.'^ Goods belonging to a woman living with the trader as his wife, and asserting herself to be his wife, will pass to his assignees, Mace V. Cadell, Cowp. 232 ; but where, on marriage, goods are vested in trustees for the separate use of the wife, in order to enable her to carry on a separate trade, and the husband to live with her, if he do not intermeddle with them, and there be no fraud, such effects will not pass to the assignees of the husband; but whether the trade be carried on solely by the wife, or jointly v»'ith the husband, is a question of fact for the jury ; and if they determine the latter, .the effects will pass to the assignees. Jar/nan v. WooUoton, 3 T. R. 618. See also Dean v. Brown, 5 B. and C. 330.^ It was held in one case that the share of a dormant partner is not within the statute, the ostensible partner having become bank- rupt, Coldwell V. Gregory, 1 Price, 119; but this case has been much doubted. Ex Parte Dyster, 2 Rose, 256, and may be consid- ered as overruled by the following decision. A. and B. were part- ners, but the whole business was carried on by, and in the name of A., B. not appearing to the world as a partner. At the dissolution of the partnership, all the joint stock and effects, by agreement, were left in the hands of A., who was to receive and pay all the debts due to and from the concern. After carrying on the business for a year and a half, A. became bankrupt. It was held that the partnership property passed to his assignees. Ex parte Enderby, 2 B. and C. 389," 4*06 ; and see Ex parte Barrow, 2 Rose, 252. » 12 Eng. Com. Law Reps. 229. M4 Id. '219. « 7 Id. 48. '10 Id. 117. '4ld.23. i7Id\24B t-QId. 12'2. 50 442 Actions by Assignees of Bankrupts. A s/iip registered in the name of one partner, but suffered to he in the possession, order, and disposition of the partnership, will pass under the assignment of the joint estate. Ex parte Burn, 1 J. and W. 373. Upon the sale or mortgage of a ship at sea, the transfer being s5^mbolical by delivery of the grand bill of sale, upon the re- turn of the ship, the transfer will be invalid if the purchaser, after notice, neglect to take possession, or notify the transfer to the cap- tain. Mair v. Glennie, 4 J\L and S. 240. Richardson v. Campbell. 5 B. and A. 196.' And by 4 Geo. IV. c. 41, s. 44, where any transfer of any ship or vessel, or any share thereof, shall have been made as a security for the payment of any debt, either by way of mortgage, or of any assignment to a trustee, for the purpose of selling for the payment of any debt, if such transfer shall have been duly registered accor- ding to the provisions of the act, the interest of the mortgagee shall not be affected by the bankruptcy of the mortgagor, notwithstand- ing that the ship w^as at the time in the possession, order, and dispo- sition of the bankrupt, and that he was reputed owner. See Robin- son V. Macdowell, 5 M. and S. 228. Kirby w. Hodgson, 1 B. and C. 588." Evidence of reputed ownership — in the bankrupt's possession as executor.] Goods of a testator or intestate, in the possession of the bankrupt, as executor or administrator, are not within the statute. Ex parte Ellis, 1 Atk. 101, 4 T. R. 629. So where the wife of the bankrupt is executrix. Finer v. Cadell, 3 Esp. 88. And even money, if it can be specifically distinguished, will not pass to the assignees. Per Lord Majisfield, 3 Burr. 1369, 3 M. and S. 578. See Fox v. Fisher, 3 B. and A. 135.' Evidence of reputed oicnership — in the bankrupts possession as. factor.] Goods in the bankrupt's possession as factor will not pass to his assignees. B. JV. P. 42. Per Lord Mansfield, Mace v. Cadell, Coicp. 233. If the factor has sold the goods and received the proceeds before the bankruptcy, the principal must come in with the rest of the creditors and prove, Scott v. Surman, Willes, 400 ; but if the factor takes notes in payment, ibid., or exchanges the original goods for other goods, Whitecombe v. Jacob, 1 Salk. 160, the notes or goods are the property of the principal, and do not pass to the assignees, see Taylor v. Plumer, 3 M. and S. 562; and if the goods have been sold, and the price has not been paid before the bank- ruptcy of the factor, and the assignees receive the money, the principal may sue them. Scott v. Surman,- Willes, 400. Evidence of reputed ownership — in the bankrupts possession for a particular purpose.] Where goods are in the bankrupt's posses- * 7 Eng. Cora. Law Reps. 66. " 8 Id. 154. ' 5 Id. 243. Actions by Assignees of Bankrupts, 443 sion for a particular purpose, they do not pass under the statute' to his assignees. Thus bills deposited by a customer with his banker, and entered as cash (whether indorsed by the customer or not), for the purpose of obtaining payment, which, by the London bankers, are usually entered short (that is, not carried to the custo- mer's credit as cash till paid), do not pass to the assignees of the banker on his becoming bankrupt. Giles v. Perkins, 9 East, 12. Ex parte Sergeant, 1 Rose, 153. A customer was in the habit of indorsing, and paying into his banker's hands, bills not due, which, if approved, were immediately entered (as bills) to his credit, to the full amount, and he was then at liberty to draw for that amount by checks on the bank. The customer was charged interest upon all cash payments to him from the time when made, and upon all payments by bills from the time when they were due and paid, and had credit for interest upon cash paid into the bank from the time of the payment, and upon bills paid in from the time when the amount of them was received. The bankers paid away such bills to their customers as they thought fit. The bankers having be- come bankrupt, it was held that the bills paid in by the customer, and remaining in specie in the banker's hands, did not pass to the assignees, the cash balance, independently of the bills, being in fa- vour of the customer at the time of the bankruptcy. Thompson v. Giles, 2 B. and C. 422."° But where bills are not remitted for a particular purpose, but to be discounted, and they are discounted accordingly, they pass to the assignees. Carstairs v. Bates, 3 Campb. 301, 2 B. and C. 432."" So where bills are sent by one trader to another trader, on a general running account, Bent v. Puller, 5 P. R. 494; or where there is an exchange of bills for bills. Harnblower v. Proud, 2 B. and A. 327 ; see Parke v. Eliason, 1 East, 554. A. and B. agreed that B. should purchase of A. the light gold coin which he should send, at a stated price, and that A. should from time to time draw upon B. for the naoney due upon such sale, and that B. should also from time to time accept other bills drawn by A. for his own convenience, for which A. was to remit value : after they had acted under this contract for some time, B. became a bankrupt, being under acceptances to a large amount ; and A., not knowing of the bankruptcy, sent a quantity of light gold and bills, to enable B. to discharge the acceptances, which par- cel was taken by B.'s assignees. It was held that A., who had since paid B.'s acceptances, might recover back the gold and bills sent after B.'s bankruptcy, on the ground that they were sent for the particular purpose of paying those acceptances, and that, as the purpose was not answered, the property in the gold, &.c. re- mained in A,, for whom B. should be considered as the factor or ■ 9 Enj;. Coin- Law Repa. 127. 444 Jlctions by j^ssignccs of Bankrupts. banker. Toohe v. Hollingswarih, 5 T. R. 215, 2 H. Bl 501, 5. C. Where A. having agreed to lend B. 200/. to be applied to a speci- fic purpose, drew a check on his banker for that sum, and deliver- ed it to B., who afterwards became bankrupt, and B. not having used the check returned it to A. after having committed an act of bankruptcy, it was held that B.'s assignees could not maintain tro- ver for the check. Moore v. Barthrop, 1 B. and C. 5." And where A. advanced money to B., then lying in prison, for the purpose of settling with his creditors, and the purpose faihng, part of such mo- ney was repaid to A. by B., who became bankrupt by lying two months in prison, it was held that the assignees could not recover the money so repaid. Tooveij v. Milne, 2 B. and A. 683. If mo- ney received by an overseer of the poor be kept apart from his general property, it will not pass to his assignees. R. v. Egging- ton, 1 T. R. 370. Evidence of reputed oicnership — in the bankrupt's possession as trustee.'] Properly which is in the bankrupt's hands as trustee only, will not pass under the assignment to his assignees. Winch V. Keeley, 1 T". /?. 619. Smith v. Pickering, Peake, 50. Taylor v. Plumer, 3 M. and S. 576. Defence. The defendant may either controvert the title of the plaintiffs as assignees, or the cause of action. He cannot, however, dispute the bankruptcy, i. e. the petitioning creditor's debt, the trading, and the act of bankruptcy, where the bankrupt, being within the realm, has not, within two months after the adjudication, given notice of his intention to dispute the commission, provided the action be for a debt or demand, for which the bankrupt might have sustained an action, ante, p. 413. And in all cases in which the defendant in- tends to dispute the bankruptcy, he must give notice of the mat- ters which he intends to dispute, ante, j). 414. Where it is compe- tent to the defendant to dispute the bankruptcy, and such notice has been given, but the bankrupt himself has given no notice, the defendant cannot take advantage of the want of a proper petition- ing creditor's debt, or of the imperfect evidence of the trading, or of the act of bankruptcy, ante, 414. He may show that the act of bankruptcy was a concerted one; but it has been held to be no defence to show that the commission issued by the desire and at the request of the bankrupt. Shaw v. Williams, R. and M. 19. Though a different rule prevails in bankruptcy. Ex parte Grant. I G. and J. 17, Eden, 14. » 8 Eng. Com. Law Ropn. 5. Actions by Jlssignees of Bankrupts. 445 In proof that the act of bankruptcy was fraudulent, the defend- ant may give in evidence declarations of the bankrupt before his bankruptcy, " that he did not owe 10/. to any one," and an inquiry " whether a friendly commission could not be issued ?" Thompson V. Bridges, 2 B. Moore, 370.° Admitting the bankruptcy, the defendant may show that the pro- perty claimed did not in fact pass to the assignees under the assign- ment ; as for instance, that though claimed as property in the pos- session of the bankrupt as reputed owner, it was in fact in his pos- session as trustee or factor. Vide supra. If hat payments to and by, and transactions with the hanh^wpt, are good.] The defendant may protect himself by insisting that he comes within the clauses of the bankrupt act by which, in various cases, transactions with the bankrupt, without notice of his bank- ruptcy, are declared good. By 6 Geo. IV, c. 16, s. 81, all conveyances by, and all contracts and other dealings and transactions, by and with any bankrupt, bona fide made and entered into more than two calender months be- fore the date and issuing of the commission against him, and all ex- ecutions and attachments against the lands and tenements, or goods and chattels of such bankrupt, bond fide executed, or levied, more than two calender months before the issuing of such commission, shall be valid, notwithstanding any prior act of bankruptcy by him committed, provided the person or persons so dealing with" such bankrupt, or at whose suit, or on whose account such execution or attachment shall have issued, had not, at the time of such convey- ance, contract, dealing, or transaction, or at the time of executing or levying such executioner attachment, notice of any prior act of bankruptcy by him committed; provided also that where a com- mission has been superseded, if any other commission shall issue against any person or persons comprised in such tirst commission, within two calendar months next after it shall have been superseded, no such conveyance, &c. shall be valid, unless made, &c. more than two calendar months before the issuing of the first commission. See Tucker V. Barrow, 1 M. and M. 1.37. On a commission issuing on May 14th, a dealing on March 14th is valid, as " more than twr. calendar months before the issuing of the commission." Coicie v. Harris, 1 jM. and M. 141. By section 82, all payments really and bond fide made, or which shall hereafter be made, by any bankrupt, or by any person on liis behalf, before the date and issuing of the commission against such bankrupt (such payment not being a fraudulent preference of such creditor), shall be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed ; and allpavments really and bond fide made, or which shall hereafter be made'/o any bank- •4 Eng. Com. Law Rcp«. 121. 446 Actions by Assignees of Bankrupts. rupt before Ihe date and issuing of the commission against such bankrupt, shall be deemed vaHd, notwithstanding any prior act of bankruptcy by such bankrupt committed; and such creditor shall not be liable to refund the same to the assignees of such bankrupt, provided the person so dealing with the said bankrupt had not at time of such payment by or to such bankrupt, notice of any act of bankruptcy by such bankrupt committed. It is not necessary that the payment should be of a precedent debt to bring the case within the statute. Thus where A. purchas- ed of B., a hop-merchant, a library, and paid him the value, B. at that time having committed an act of bankruptcy of which A. had no notice, it was held that B. was protected by the above clause. Hill V. Farnell, 9 B. and C. 45.p See also Churchill v. Crease, 5 Bingh. 177.1 Bishop v. Hornhloioer, 3 B. and C. 415.'' A payment by a partner who has committed an act of bankruptcy, of a part- nership debt due before the bankruptcy, to a creditor who has no- tice of the act of bankruptcy, is not protected by this statute. Craven v. Edmoiidson, 6 Bingh. 734.' Though notice of a docket may not of itself be esteemed notice of an act of bankruptcy, yet connecting such a notice with the cir- cumstance of the defendants' requiring security before they made the payment, a jury will be justified in finding the fact of notice. Spi-attv. Hobbouse,4. Bingh. 181.* By section 83, the issuing of a commission shall be deemed notice of a prior act of bankruptcy (if an act of bankruptcy had been ac- tually committed before the issuing of the commission), if the ad- judication of the person or persons against whom such commission has issued shall have been notified in the London Gazette, and the person or persons to be affected by such notice may reasonably be presuntied to have seen the same. By section 84, no person, or body corporate, or public company, having in his or their possession, or custody, any money, goods, wares, merchandizes, or effects, belonging to any bankrupt, shall be endangered by reason of the payment or delivery thereof to the bankrupt, or his order, provided such person or company had not, at the time of such delivery or payment, notice that such bankrupt had committed an act of bankruptcy. By section 85, if any accredited agent of any body corporate, or public company, shall have notice of any act of bankruptcy, such body corporate, or company, shall be thereby deemed to have had such notice. By section 86, no purchase from any bankrupt, bona fide, and for valuable consideration, where the purchaser had notice, at the time of such purchase, of an act of bankruptcy by such bankrupt committed, shall be impeached by reason thereof, unless the com- f 17 En?. Com. Law Reps. Sf50. i 15 Id. 409. ' 10 Id. 136. • 19 Id. 219. ' 13 Id. "39.5. Actions by Assignees of Bankrupts. 447 mission against such bankrupt shall have been sued out within twelve calendar months after such act of bankruptcy. Evidence of set-off.^ The section of the new bankrupt act rela- tive to set-ofi' has been already given. Ante, -p. 252. The term mutual credit is held to have a more extensive meaning than mu- tual debt. Ex parte Prescott, 1 Atk. 230. A mutual credit may be constituted, though the parlies did not mean particularly to trust each other, as where a bill of exchange, accepted by A., gets into the hands of B., and B. buys goods of A., it is a mutual credit be- tween A. and B., thouejh A. did not know that the bill was in B.'s hands. Hankey v. S?nith, 3 T. R. 507 (n). Where a partner in the house of M. and Co., bankers, drew bills for the accommodation of A., a customer of M. and Co., who dis- counted the bill for A., and N. and Co., to whom it was indorsed by M. and Co., discounted the bill for them ; and on the bill becom- ing due after the bankruptcy of M. and Co. ; in consequence of the nonpayment of the bill by A., N. and Co. paid themselves the amount of the bill out of the funds of M. and Co. in their hands ; it was held to be a case of mutual credit between A. and M. and Co., and that the former might set off a debt due to him by M. and Co. in an action brought by their assignees on the bill. Bolland v. Nash, 8 B. and C. 105." It is now settled that the term mutual credit is confined to such credits only, as nmst, in their nature, terminate in debts ; as where a debt is due by one party, and credit given him on the other side for a sum of money, payable on a future day, and which will then become a debt ; or where there is a delivery of property on one side with directions to turn it into money on the other ; in such case the credit given by the delivery of the property must in its nature terminate in a debt, the balance will be taken on the two debts, and the words of the statute will, in all respects, be complied with ; but where there is a mere deposit of property, without any authority to turn it into money, no debt can arise out of it, and, therefore, it is not a credit within the meaning of the statute. Rose V. Hurt, 8 Taunt. 499,' Eden, 193 ; and see Easum v. Cato, 5 B. and A. Sfil."' Therefore a guarantee against contingent damages, which cannot terminate in a debt, is not the subject of a mutual credit. Sampson v. Burton, 2 B. and B. SO."" It seems that these decisions are to be considered as authorities upon the new bank- rupt act, though the words are, that " one debt, or demand, may be set off against another." Eden, 194. Evidence of set-off— nature of the debt due from the bankrupt to • 15 Eng. Com, Law Reps. 157. » 4 Id. 185. " 7 Id. 282. »6 Id. 28. 448 .Actions by .issignecs of Bankrupts. the creditor.^ Altiiough it is enacted by Geo. IV. c. 10, s. 16, ante, p. 252, that every debt, or demand, thereby made proveable against the estate of the bankrupt may also be set oiF, yet tlie debtor of the bankrupt cannot, by procuring a debt due from the bankrupt to be assigned to him after the bankruptcy, entitle him- self to set oiF such debt. Thus where a holder of a promissory note of the bankrupt indorsed it, after a commission issued, to h debtor of the bankrupt's estate, it was held that it could not be set otrby the indorsee. Marsh v. Chambers, 2 Sir. 1234. Ex parte Hale, 3 Vcs. 304. If the set-off arises on the indorsement of a bill to the defendant, he must show that the indorsement was made before the bankruptcy ; Lucas v. Marsh, Barnes, 453 ; but where the set-ofFwas founded on certain notes of the bankrupt, proof that notes of the bankrupt to the amount of the set-off came to the de- fendant's hands three or four weeks before the bankruptcy, was held sufficient evidence from which the jury might infer that he was in possession of them at the time of the bankruptcy, without identifying them with the notes produced. Moore' v. Wright, 2 Marsh. 209, 6 Tau7it. 517,^ S. C. The defendant cannot set off cash notes of the bankrupt, payable to J. S. or bearer, without showing that they came to his hands before the bankruptcy, though they bear date before that time. Dickson v. Evans, T. R. 57. It is not sufficient, in order to establish a set-off, to prove that the defendant's demand has been allowed by the commissioners as a debt. Pirie v. M&ninet, 3 Camph. 279. The 6 Geo. IV. c. 16 having made all debts which it has declared to be proveable to be also the subject of set-off, it follows, that in all those cases in which set-off has been refused on the ground of the claim depending upon a contingency, such claim may now be set off Eden, 203. A person who receives a banker's notes after he knows that he has stopped payment, but without knowing that he had committed an act of bankruptcy, is entitled to set off the amount. Hawkins V. Whitten, 10 B. and C. 217. Evidence of set-off— nature of the debt due from the creditor to ■the bankrupt!] With regard to the nature of the debt due from the creditor to the bankrupt, or the credit given by the bankrupt to the creditor, it must appear that the debt, or the credit, existed before the bankruptcy. Thus, if the holder of an acceptance buy goods from the acceptor, and the acceptor becomes bank- rupt, the purchaser may set off the acceptance against the price of the goods. Hankey v. Smithy 2 T. R. 507 (n). Where A. bought of B. goods to the amount of 430/. at six months credit, and afterwards to the amount of 230/. at the same credit, and at the expiration of the first six months gave B. two bills of exchange, upon y 1 Eng. Com. Law Reps. 469. jidions by jissignees of Bankrupts. 41 9 third persons for 600/., B. giving A. an undertaking to repay him the balance of 170/. upon the bills being paid, it was held, the bills being paid, and A. becoming bankrupt before the credit for the se- cond parcel expired, that B. might set off the 170/. against the price of the second parcel. Atkinson v. Elliott, 7 T. R. 378. But where a bankrupt, previously to his bankruptcy, deposited a bill of ex- change with the defendant, for the purpose of raising money there- on, and an advance was accordingly made, it was held that the as- signees of the bankrupt were entitled to recover the bill on tender- ing the money advanced, though a balance remained due to the defendant on a general account. Key v. Flint, 1 B. Moore, 451, 8 Taunt. 21,* S. C. And where bankers had accepted bills for the accommodation of a trader, who after committing an act of bank- ruptcy, but before a commission sued out, lodged money with them to take out the bills, which, when due, were paid by the bankers, it was held that the bankers were bound to refund this money to the assignees, and could not set it off, for the 5 Geo. II. c. 30, was con- fined to mutual credits, and mutual debts, " at any time before such person became bankrupt ;" Camplin v. Diggins, 2 Camph. 312; but now, by the new act, the debt is a subject of set-off, notwith- standing a prior act of bankruptcy, provided the defendant had no notice of such act. The debt, or credit, must be due in the same right, as in every case of set-off! Vide supra. Where third persons holding the ac- ceptance of a trader who was known to be in bad circumstances, agreed wi(h the defendants, as a mode of covering the amount of the bill, that it should be indorsed to them, and that they should purchase goods of the trader, which were to be paid for by a bill at three months date, or made equal to cash in three months (before which time the trader's acceptance would be due), but without communicating to the trader that they were (he holders of his ac- ceptance, it was held that the trader having become bankrupt, the defendants could not set off the amount of his acceptance, which they did not hold in their own right, but, in effect, as trustees for the other persons. Fair v. M'lver, 16 East, 130. But where the defendant, who had ordered goods for ready money, paid for them by returning to the vendor's agent a bill accepted by the vendor, which had been due and dishonoured before the goods were ordered, and the agent carried it home to the vendor, who kept it, and became bankrupt, the transaction was held equivalent to payment. Mayer V. Xiasyl Bingh.ZW.'^ Competency of Witnesses. Bankrupt.'] It va now a well-established rule (though the prin- ciple of it has been doubted, see 2 Phill. Ev. 835, 2 B. arid V. 18,* M'Cl. and Y. 402), that a bankrupt, even after obtaining his certi- » 4 Eng. Com. l-aw Reps. 3. » 8 Id. 3S0. ^ 9 Id. 9. 57 450 Actions by jissignccs of Bankrupts. ficate, and releasing his share of the surplus, is incompetent to prove any fact necessary to support the commission. He cannot, therefore, be called to prove the petitioning creditor's debt, Chapman v. Gard- iner, 2 H. Bl. 279, Cross v. Fox, ib. (n) ; or to prove his own act of bankruptcy. Field v. Curtis, 2 Sir. 829 ; or to disprove it, as where he was asked whether the assignment did, or did not, comprise the whole of his property, Hojfman v. Pitt, 5 Esp. 24, though, in a prior case. Lord Kenyon admitted the bankrupt, to prove whether the arrest, which was said to be fraudulent, and an act of bankruptcy, was, in fact, a concerted or an adverse arrest. Oxlade v. Perchard, 1 Esp. 286. In a subsequent case, however, Mansfield, C. J., reject- ed the evidence of a bankrupt lo disprove his bankruptcy, and said that Oxlade v. Perchard, which was cited, had been overruled by J.ord Ellenborough and himself at Guildhall. Rahett v. Gurnet/, 1 Mont. B. L. 482 (w), <^d. 1805, M'Cl. and Y. 404. Nor can a bank- rupt be called to prove a prior act of bankruptcy ; Wyatt v. Wil- kinson, 5 Esp. 187 ; and when called by the other side he cannot be cross-examined as to any fact, necessary either to support the commission, Elsom v. Braily, 1 Sehv. JV. P. 253, Wyatt v. Wilkinson, 5 Esp. 187; but see Fletcher v. Woodmas, 1 Selw. JV. P. 253 (w), or tending to defeat it. Binns v. Tetley, M'Cl. and Y. 397. A bankrupt is not a competent witness to increase his estate, for his right to an allowance (depending on the dividends), and to the surplus, excludes him on the ground of interest. B. JV. P. 43. Butler V. Cooke, Cowp. 70. But if the bankrupt has obtained his certificate, and has released his share in the surplus, and in the dividends, to his assignees, or has executed a general release to thern, he is thereby rendered competent to increase the estate. B. JV. P. 43, JVares v. Saxby, cited 2 T. R. 497 ; and see Carlisle v. Eady, 1 C. and P. 234.-^ In an action on the statute, 9 Anne, c 14, by the assignee of a bankrupt, to recover money lost by the bankrupt at play, it was held that the bankrupt, who had obtained his certificate, was rendered a competent witness to prove the loss by three releases: 1. By the bankrupt to, the assignee. 2. By all the creditors to the bankrupt ; and 3. By the assignee, who was not a creditor, to the bankrupt : and it was also held, that a year after the commission issued, it might be presumed that all the cre- ditors had proved, and that a release signed by all who had proved might therefore be considered as a release by all the creditors. Carter v. Abbott, 1 B. and C. 444.* Where the witness has been twice bankrupt, his certificate under the second commission, and a release to the assignees, will not make him a competent witness to increase the fund, unless he has paid 15s. under the second commis- « n Eng. Corn. Law Reps. 378. * 8 Id. 124. Aclions by Assignees of Bankrupts. 451 sion, for unless he pays that sum his future effects remain liable. Kennet v. Greenwallers, Peahe, 3. In a suit against the crown, a release from the bankrupt to his assignees will not operate to make him a competent witness, the crown not being bound by the bank- rupt law. Craicford v. Attorney General, 7 Price, 2. A bankrupt may, however, be called to diminish the fund, though not certificated. Butler v. Cooke, Cowp. 70, B. JV. P. 43. Where one of several defendants pleads his bankruptcy, and a nolle prosequi has been entered as to him, he is a competent witness for the other defendants, ante, p. 88. So the bankrupt may be called to prove any fact except such as are material to support the commission, or to increase the estate, having obtained his certificate and released his surplus. He may, therefore, be called to prove the handwriting of the commissioners in order to identify the proceedings. Morgan v. Pryor, 2 B. and C. 14.^ So Raymond, C. J., admitted a bankrupt to give evidence as to the time of an act of bankruptcy, though he refused him as a witness to prove the act. 12 Vin. Ah. 11, pi. 28. In an action by the assignees against a creditor who has levied under an execution against the bankrupt, the latter was held to be competent to prove the defendant's knowledge of his insolvency. Beed v. James, 1 Stark. 134.' But in such case it seems that the bankrupt must be certificated and have released to his assignees, as his evidence goes to increase the estate. See 2 Phill. Ev. 336 (72). The bankrupt's wife cannot be examined as to an act of bank- ruptcy committed by her husband. Ex parte James, 1 P. Wms. 611, 12 Vin. Ab. 11, pi. 28. Where the wife was called to prove that a promissory note had been paid to the defendants in contem- plation of bankruptcy. Lord Kenyon held her to be a competent witness, inasmuch as if the plaintiff recovered, the defendants would be creditors against the estate to the amount of the note, and so the witness stood indifferent. Jourdaine v. Lefevre, 1 Esp. 66. But it has been observed, that in this case the witness appears to have been interested, inasmuch as the fund would be increased if the plaintiff succeeded, by the difference between the amount of the note and a dividend on a debt to the same amount, unless the estate should pay 20s. in the pound. Eden, 362. Creditor.^ A creditor is not a competent witness to increase the fund out of which he is to receive his dividends, and therefore he cannot be called to prove gaming by the bankrupt, and so to deprive him of his allowance. Shultleworth v. Bravo, 1 Str. 507. Nor is a creditor a competent witness to support the commission which is to be considered as a benefit to the witness, since it brings a divisible fund within his reach. Crooke v, Edwards, 2 Stark. 302.* « Kng. Com. Law Rops. 8. ' 2 Id. 327. t ^ Id. 355. 452 Actions by Assignees of Bankrupts. Adams v. Malhin, 3 Ccmpb. 543; but see IVUIiams v. Stevens, 2 Campb. 301; contra. And it is immaterial that he has not proved. Adams V. Milkin, 8 Campb. 543 ; Croohe v. Edwards, 2 Stark. 302," overruling IViUiams v. Stevens, 2 Campb. oOl. But a creditor is competent to overthrow the petitioning creditor's debt. In re Codd, 2 Sc/i. and Lef. 110. And where the bankrupt is a member of parliament who has committed an act of bankruptcy by not paying, securing, or compounding for his debt, a creditor is a competent witness, from necessity, to prove that the debt has not been paid, secured, or compounded for, but not to prove other circumstances which can be esta])lished aliunde. Ex parte, Harcourt, 2 Rose, 203. A creditor may be rendered competent by a release to the assignees. Koopes v. Chapman, Peake, 19 ; and see Sinclair v. Stevenson, 1 C. and P. 582.' So if he has sold his debt, or agreed to sell it, for he thereby becomes only a trustee for the assignee of the debt. Granger v. Furlong, 2 W. Bl 1273. Heath v. Hall, 4 Taunt. 326. The petitioning creditor is not a competent witness to show that the commission was regularly sued out. He enters into a bond to the Chancellor, conditioned to establish the several facts upon which the validity of the commission depends, and to cause it to be effectually executed. He has, therefore, a clear and direct interest in the question at issue. Per Lord Ellenborovgh, Green v. Jones, 2 Campb. 41 1. But he may be called to upset the commission, as by showing that the act of bankruptcy was concerted between him- self and the bankrupt, and that there was no sufficient petitioning creditor's debt. Loijd v. Stretton, 1 Stark. 40." But the deposition of the petitioning creditor is sufficient proof of the debt, where no notice to dispute the bankruptcy has been given under 49 Geo. HI, c. 131. Bissev. Randall, 2 Campb. 493. In an action by a creditor of the bankrupt, against (he sheriff for a false return to a writ of fi. fa. against the bankrupt's goods, where the defence was that at the time of levy the party was bankrupt, the declarations of the petitioning creditor, made after the commission issued, have been admitted to disprove the exis- tence of a good petitioning creditor's debt. Young v. Smith, 6 Esp. 121. Doirden v. Foivle, 4 Campb. 38. Commissioner and assignee."] Where a commissioner was called to support the commission, under which he had acted, on its being objected that he had received fees, and was liable to an action of trespass if the commission should be overturned, Lord Ellenborough observed that he could not be called upon to refund the fees which he had received, and he permitted the witness to be examined, saying that he would not then pronounce upon the question. Crooke v. Edwards, 2 Stark. 302." His interest in >> 3 Eng. Com. Law Rep«. 3)5. 1 1 Id. 480. ^ z Id. 286. I Actions against Bankrupts. 453 the future fees, which he might get if the commission were supported, seems not to have been noticed. Eden, 365. An assignee who has released his claim upon the estate is com- petent to prove the petitioning creditor's debt. Tomlinson v. Wilkes, 2 B. and B. 397.^ ACTIONS AGAINST BANKRUPTS. Lv an action against a bankrupt, he may plead that the cause of action accrued before he became bankrupt, by 6 Geo. IV. c. 16, s. 126. By that statute any bankrupt who shall, after his certificate shall have been allowed, be arrested, or have any action brought against him for any debt, claim, or demand, by that act made proveable under the commission against such bankrupt, shall be discharged upon common bail, and may plead in general that the cause of ac- tion accrued before he became bankrupt, and may give the act and the special matter in evidence, and such bankrupt's certificate, and the allowance thereof, shall be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate. A certificate obtained after the above statute on a commission issued before it, is proved by the produc- tion of the certificate duly allowed. Taylor v. Welsford, 1 M. and M. 503. And by section 130, no bankrupt shall be entitled to his certifi- cate, or to be paid any such allowance, and any certificate, if ob- tained, shall be void, if such bankrupt shall have lost, by any sort of gaming or wagering, in one day 20/., or within one year next pre- ceding his bankruptcy 200/., or if he shall within one year next pre- ceding his bankruptcy have lost 200/. by any contract, for the pur- chase or sale of any government or other stock, where such con- tract was not to be performed within one week after the contract, or where the stock bought or sold was not actually transferred or delivered, in pursuance of such contract, or shall, after an act of bankruptcy committed, or in contemplation of bankruptcy, have destroyed, altered, mutilated, or falsified, or caused to be destroyed, altered, mutilated, or falsified, any of his books, papers, writings, or securities, or made, or been privy to the making of any false or fraudulent entries in any book of account, or other document, with intent to defraud his creditors, or shall have concealed property to the value of 10/. or upwards, or if any person having proved a false debt, under the commission, such bankrupt being privy thereto, or afterwards knowing the same, shall not have disclosed the same to his assignees within one month after such knowledge. A loss by gaming invalidates a certificate, though the bankrupt ' 6 Enj. Com. Law Reps. 168. 454 Actions against Bankrupts. on the same day wins more than he loses. Ex parte Newman^ Glynn and J. 329. The defence of bankruptcy cannot be given in evidence under the general issue, but must be pleaded in the foi'm prescribed by statute. Gowland v. tVarrcn, 1 Camph. 863. Under that plea a certificate allowed after the commencement of the suit, but before plea pleaded, may be given in evidence, Harris v. James, 9 East, 82; but if allowed after plea pleaded, it is inadmissible, Langmead V. Beard, cited 9 East, 85 ; but should be pleaded puis darrein continuance. The allowance, it has been said, needs no proof, the judges taking cognizance judicially of the handwriting of the Chan- cellor. Eden, 426. The certificate cannot be given in evidence unless entered of record in the manner required by 6 Geo. IV. c. 16, s. 95, 96. Ibid, supra. If a commission issue against a person by a wrong name, and he obtains his certificate under it, and an action is afterwards brought against him in his right name, on a plea of bankruptcy, he may show that he is the person against whom the commission issued, and that he has gone by the name by which he is described in the commission. Stevens v. Elizee, 3 Campb. 256. Where issue was joined on the fact of a discharge under a for- mer commission, the affidavit of conformity was held to be good secondary evidence of the certificate, after a notice to produce. Graham v. Grill, 4 Campb. 282. So where to prove that the de- fendant, who pleaded his bankruptcy, had been before discharged as a bankrupt, a witness stated that he had been employed by the defendant to solicit his certificate, and that looking at the entries in his books he had no doubt that it had been allowed by the Lord Chancellor, it was held sufficient, notice to produce the certificate having been given ; but it was ruled that the book in the bankrupt office, containing entries of the allowance of certificates was not sufficient secondary evidence. Henry v. Leigh, 3 Campb. 499. Evidence on plea of bankruptcy, what debts barred by certificate.'] A certificate under a joint commission may be given in evidence in an action for a separate debt, and vice versa. Horsey's case, 3 P. Wms. 23, Ex-parte Yale, id. 24 (n). By the statute any debt, claim, or demand, made proveable under the commission, is discharged by the certificate, but these words do not include a debt due to the crown. Anon. 1 Atk. 262, Eden, 413. Some demands, which are not proveable under the commission, are barred by the certificate. Thus the costs of an action, ex contractu, where there is no verdict before the bankruptcy, are not proveable under the commission, but are barred by the certificate. Ex-parte Hill, 11 Ves. 646, Ex-parte Poucher, 1 G. and J. 386. So where on the re- ference of a cause, the arbitrator made his award against the plain- j^ctions against Bankrupts. 455 tififi who became bankrupt before the costs were (axed, and judg- ment signed, the costs were held not to be proveable under the commission. Haswell v. Thorogood, 7 B. and C. TOS." A claim for unliquidated damages merely is not proveable under the com- mission, and is not barred by the certificate, and therefore, where the plaintiff sues the defendant in trespass for seducing his daugh- ter, and judgment is not signed until after the bankruptcy, though the verdict be before it, the certificate is no bar ; Buss v. Gilbert, 2 M. and S. 70, Ex parte Charles, 14 East, 197 ; and in an action of tort for not^selling stock according to orders, bankruptcy and cer- tificate are no defence. Parker v. Crole, 5 Bingh. 63." Where A. covenants that B. should pay the premium upon a policy of in- surance, the non-payment is not proveable under a commission against A., and consequently not barred by his certificate. Atwood V. Partridge, 4 Bingh. 209.° But where a debt exists before the bankruptcy, and a verdict is obtained, and costs are taxed after the bankruptcy, the costs are considered as part of the original debt, and that being barred by the certificate, the costs are barred with it. Lewis v. Piercy, 1 H. Bl. 29. Costs even in tart where the bankruptcy is during the term, of which the judgment is sign- ed generally, are barred by the certificate. Greenway v. Fisher, 7 B. and C. 436.P See Bire v. Moreau, Bingh. 57.« Where a debt is contracted in a foreign country, a discharge (as by a cer- tificate,) according to the law of that country, is a bar to an ac- tion brought in our own courts, Ballantine v. Golding, Co. Bl. 347, 1st ed., Potter v. Brown, 5 East, 124 ; but not so where, by the foreign law, the remedy only is barred, Williams v. Jones, 13 East, 439 ; nor is a foreign bankruptcy and certificate a bar to a demand for a debt contracted in England. Smith v. Buchanan, 1 East, 6, see 2 H. Bl. {n), 4th ed. Evidence on plea of bankruptcy, in answer toplea.l Where the general plea of bankruptcy is pleaded, which concludes to the country, the plaintiff can only reply the similiter, Wilson v. Kemp, 2 M. and S. 549, Hughes v. Morleij, 1 B. and A. 22 ; and under this replication the plaintiff may give in evidence any matters which by 6 Geo. IV. c. 16, s. 130, ante p. 453, render the certificate void. Ibid. Evidence of subsequent promise.] By 6 Geo. IV. c. 16, s. 131, no bankrupt after his certificate shall have been allowed under any present or future commission, shall be liable to pay or satisfy any debt, claim, or demand from which he shall have been discharged by virtue of such certificate, or any part of such debt, claim, or demand, upon any contract, promise, or agreement, made or to be made after the suing out of the commission, unless such promise, contract, or agreement, be made in writing, signed by the bank- • 14 Eng. Com. Law Reps. 111. " 15 Id. 371. • 13 Id. 403. i' 14 Id. 75. "113 Id. 341. 456 J^dions against Constables^ &cc. rupt, or by some person thereto lawfully authorized in writing by such bankrupt. The initial of the defendant's surname is not a sufficient signature within this clause. Hubert v. Moreau, 2 C. and P. 528/ ACTIONS AGAINST CONSTABLES AND REVENUE OFFICERS. By 24 Geo. II. c. 44, s. 6, no action shall be brought against any constable, headborough, or other officer, or against any person or persons acting by his order and in his aid, for any thing done in obe- dience to any icarrant under the hand or seal of any justice of the peace, until demand hath been made or left at the usual place of his abode by the party or parties intending to bring such action, or by his, her, or their attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of such war- rant, and the same has been refused or neglected for the space of six days after such demand ; and in case after such demand and compliance therewith, by showing the said warrant to, and permit- ting a copy to be taken thereof by the party demanding the same, any action shall be brought against any such constable, &c. with- out making the justice or justices who signed or sealed the said warrant defendant or defendants, that on producing and proving such warrant at the trial of sm h action, the jury shall give their ver- dict for the defendant or defendants, notwithstanding any defect of jurisdiction in such justice or justices. And if such action be brought jointly against such justice or justices, and also against such con- stable, &.C. then on proof of such warrant the jury shall hnd for such constable, &c. notwithstanding such defect of jurisdiction as aforesaid. What persons are ivithin the statute.] Churchwardens and over- seers of the poor taking a distress for poor's rate are entitled to the protection of the statute. B. JV. P. 24, Harper v. Can', 7 T. R. 271. So a gaoler who receives and detains a prisoner under the warrant of a magistrate. Butt v. Newman, Goto, 9^.* This sec- tion is obviously intended to protect the officer in those cases only where the justice remains liable, and it is necessary in order to bring the ofiicer within it that he should act most strictly in obe- dience to his warrant. Per Abbott, C. J. Parton v. Williams, 3 B. and A. 333.' Therefore, where an officer apprehends a different person from him described in the warrant he is not protected. Money v. Leach, 3 Burr. 1742, 2 M. and S. 260. So where a con- stable having a warrant to search for 100 lbs. weight of cotton copps which had been stolen, and also a tin pan and sieve which were claimed by the party robbed, but were not mentioned in the ' 12 Eng. Com. Law Reps. 248. • 5 Id. 472. ' 5 Id. 308. mictions against Constables, S^c. 457 warrant, nor likely to furnish evidence of the identity o( the arti- cles stolen. Crazier v. Cindy, 6 B. and C. 232." So where, not acting in obedience to the warrant, he executes it out of the juris- diction of the magistrate by whom it is granted. Milton v. Green, 5 East, 232. So also where, in executing a warrant of distress, he enters a house and breaks the windows, &:c. Bell v. Oakley, 2 M. and S. 259. But it will not deprive the officer of the protection of the statute that the warrant was illegal, provided he acted in obe- dience to it. Price v. Messenger, 2 B. and P. 158. Where a sta- tute provides that for any thing done in pursuance of that act, no- tice shall be given before action commenced, such notice is only necessary in those cases, in which the party against whom the ac- tion is brought has reasonable ground to suppose that the thing done by him is done in execution of or under the authority of the act. Cooke v. Leonard, 6 B. and C. 361.' What actions are within the statute.'] The act only extends to actions of tort, and therefore where an action for money had and received was brought against an officer who had levied money on a conviction which had been quashed, it was held, that a demand of a copy of the warrant was not necessary. B. JV. P. 24. Replevin is not an action within the statute. Fletcher v. Wilkins, 6 East, 283, 4 B. and C. 211.- Evidence of demand.] The demand may be proved by the pro- duction of a duplicate original without a notice to produce ; Joryv. Orchard, 2 B. and P. 39 ; and it is sufficient if the demand be sign- ed by the plaintiff's attorney. Ibid. Where the declaration ^oes not charge the defendants as officers, the plaintiff need not, in the first instance, prove a demand of a copy of the warrant. If the de- fendants mean to justify under the warrant, that proof lies upon them, and when they come to that part of the case the plaintiff must prove a demand. Price v. Messenger, 3 Esp. 96. If the constable refuse or neglect, for the space of six days, to comply with the demand, the constable may be sued as before the statute. But if he complies with the demand at any time before action brought, though more than six days after the demand, he will be within the protection of the act. Jones v. Vaughan^ 5 East, 445. Limitation of action.] By 24 Geo. II. c. 44, s. 8, no action shall be brought against any justice of the peace for any thing done in the execution of his office, or against any constable, head-borough, or other officer or person acting as aforesaid, unless commenced within six calendar months after the act committed. The object of this section differs from that of the sixth section {vide supra), be- ing intended for the benefit of persons who intend to act right, but « 13 Eng. Com. Law Reps. 154. M3 Id. 195. * 10 Id. 310. 58 458 ./Actions against Constables, &rc. by mistake act wrong. Per Abbott, C. J., Parton v. Williams, 3 B, and A. 333." And the officer is entitled to the protection of this section of the statute, provided he acts bona fide in his character of officer, and under a belief that he is discharging the duty with which he is invested. Per Baijley, J., Id. 338. Therefore, where some constables, under a warrant to search for black cloth which had been stolen, finding no black cloth, took cloth of other colours, and carried it before a magistrate, refusing at the same time to tell the owner of the house searched whether they had any warrant to do so; it was held, that they were within this section of the statute, and that the action ought to have been commenced within six months. Smith v. JViltshire, 3 B. andB. 619.'' And so where a con- stable acting under a warrant, commanding him to take the goods of A., took the goods of B., believing them to belong to A., it was lield, that the action must be brought within six months. Parton v. Williams, 3 B. and A. 330."' It v^'as ruled by LordKenyon, in Postle- thwaite v. Gibson, 3 Esp. 226, that a constable taking a person into custody on suspicion of felony, without a warrant, was not within the protection of this section ; but on this decision being cited, it was said by Abbott, C. J., that if it were necessary to determine this question, he should wish for time to consider it. Parton v. Wil- liams, 3 B. and A. 334." And the opinion of Lord Kenyon has likewise been questioned in another decision. Smith v. Wiltshire, 2 B. and B. QZ2J Where a constable acts colore officii, and not virtute officii, he is not protected by the statute ; where the act committed is of such a nature that the office gives him no authority to do it, in the doing of that act he is not to be considered as an officer ; but where a man doing an act within the limits of his offi- cial authority, exercises that authority improperly, or abuses the discretion placed in him, to such cases the statute extends. Per Ld. Kenyon, Alcock v. Andrews, 2 Esp. 542 (n). Cooke v. Leonard, 6 B. av.d C. 351,^ supra. Venue.'] By 21 Jac. 1. c. 12, s. 5, if any action upon the case, trespass, battery, or false imprisonment, shall be brought against any justice of peace^, mayor, or bailiff, of city, or town corporate, headborough, portreve, constable, tithing-man, collector of subsidy or fifteens, churchwardens, and persons called sworn men, execut- ing the office of churchwarden or overseer of the poor, and their deputies, or any of them, or any other which in their aid and assis- tance, or by their commandment, shall do any thing touching or concerning his or their office or offices, for or concerning any matter, cause, or thing, by them or any of them, done by virtue or reason of their, or any of their office or offices, the said action shall be laid within the county where the trespass or fact shall be done » 5 Eng. Com. Law Reps. 30^5. t 6 Id. 285. ' 13 Id. 195. .Actions acrainst Constables^ S^c. 459 s and committed, and not elsewhere ; and it shall be lawful to and for all and every person and persons aforesaid, to plead the gene- ral issue, and give the special matter in evidence. A constable who imprisons a person on suspicion of felony, with- out any reasonable grounds, of his own authority, without warrant, is within this statute ; and a private person, who acts in aid of the constable, is also within it ; but if he acts, not merely in aid, but as a prime mover, and principal (which is a question for the jury,) the statute does not apply to him. Staight v. Gee, 2 Stark. 445." Where the prosecutor, who had obtained the warrant, pointed out the party to the constables. Lord Ellenborough was of opinion that he was acting in their aid within the meaning of the statute. JVa- than V. Cohen, 3 Campb. 257. But where A. sent for B., a consta- ble, and gave the plaintiff in charge for a felony, Bay ley J. ruled that A. was not within the statute, and must plead specially. M'CIoughan v. Clayton, Holt, 478." Evidence of arrest.'\ In actions against constables it sometimes becomes a question whether the evidence is sufficient to establish an arrest. Where the constable went with the warrant to the plaintiff's house and showed it to him, and after some conversation the plaintiff attended the constable to the magistrate, by whom the charge was dismissed, the constable having never touched the plaintiff, it was held that this was no arrest, for that the plaintiff went voluntarily before the magistrate. Arrowsmith v. Le Mesu- rier, 2 JVC /?. 21 1. So where the officer told the party that he had a writ against him, to which the latter replied, " Very well, I will come to you immediately," but kept his seat, and on the officer quitting the room made his escape, it was ruled by Abbott C. /. to be no arrest. Russen v. Lucas, R. and M. 26. But where the constable said to the plaintiff, " You must go with me," on which the plaintiff said he was ready to go, and went with the constable towards a police office, without being seized or touched, this was ruled to be an imprisonment; and per Abbott, C. J., " if a person send for a constable, and give another in charge for felony, and the constable tell the party charged that he must go with him, on which the other, in order to prevent the necessity of actual force being used, expresses his readiness to go, and does actually go, this is an imprisonment." Pococh v. Moore, R. and M. 32. Chinn v. Moi-ris, 2 C. and P. 360." See more as to arrests, ante, p. 304. The law on this point was thus laid dovvn by Eyre C. J., in Simpson v. Hill, I Esp. 431, (see 1 M. and R. 215) : " If the constable in con- sequence of the defendant's charge had for one moment taken pos- session of the plaintiff's person, it would be in point of law an im- prisonment ; as for example, if he had tapped her on the shoulder and said, " You are my prisoner," or if she had"^ submitted herself in- •3 Eng. Com. La* Raps. 454. "Sid. 161. '12 Id. 171. 460 Actions against Constables^ S{c. to his custody, such would be an imprisonment ; but the merely giving her in charge, without any taking possession of the person, where nothing 7nure passes than merely the charge, is not by law a false imprisonment," In the following case the circumstances were held to constitute an imprisonment. The plaintitfappeared before the defendant, a magistrate, to answer the complaint of A. for un- lawfully selling his dog. The defendant advised the plaintiff to settle the matter, by paying a sum of money, which the plaintiff declined. The defendant then said " he would convict the plain- tiffin a penalty under the trespass act, in which case he would go to prison." The plaintiff still declined paying, and said he would appeal. The defendant then called in a constable, and said, " Take this man out, and see if they can settle the matter ; and if not bring him in again, as 1 must proceed to commit him under the act." The plaintiff then went out with the constable, and settled the matter, by paying a sum of money; it was held, that this was an assault and false imprisonment, for which trespass would lie; and which, as no conviction had been drawn up, the defendant could not justify. Bridget v. Coyney, 1 AJ. and i?. 211. Where a sheriff's officer having a warrant to arrest A. sent a message to A. to fix a time to call and give a bail bond, and A. fixed a time, at- tended and gave bail, in an action for malicious arrest, held to be no arrest. Berry v. Adamson, 6 B. and C* 528. See ante, p. 304. Defence. A constable having reasonable cause to suspect that a felony has been committed, is justified in arresting the party suspected, though it afterwards appear that no felony has been committed. Beck, with u. S'picer, 6 B. and C. 635.^ Davis v. Russell, 5 Bingh. 354.' Actions against Officers of Customs or Excise. By 28 Geo. III. c. 37, s. 25, no writ or process shall be sued out against any officer of the customs or excise, or against any person or persons, acting by his or their order, in his or their aid, for any thing done in the execution, or by reason of that or any other act or acts of parliament then in force, or thereafter to be made re- lating to the said revenues, or either of them, until one calendar month next after notice in writing shall have been delivered to him or them, or left at the usual place of his or their abode by the attorney, or agent for the person who intends to sue out such writ, or process, as aforesaid, in which notice shall be clearly and expli- citly contained the cause of action, the name and place of abode of the person or persons in whose name such action is intended to be brought, and. the name and place of abode of the said * 13 Enif . Cora. Law Reps. '245. • 13 Id. 287. ' 15 Id. 463. Jlctions by Executors and Administrators. 461 attorney or agent. By sec. 27, the plaintiff shall not give evidence of any cause of action not contained in the notice. Under the prior act, 23 Geo. III. c. 70, s. 30, it was held that an excise officer was protected by this statute for an act not war- ranted by his official capacity if done, bona fide, in the supposed execution of his duty, such as assaulting an innocent person whom he suspected to be a smuggler. Daniel v. Wilson, 5 T.R.I. But a constable, who seized a person by direction of a custom-house officer, who had himself no power to seize, was held not to be within the protection of the act. Norton v. Miller, 2 Chitty, 140.s And where a revenue officer seizes goods as forfeited, which are not liable to seizure, and takes money to release them, an action for money had and received will lie to recover it back without a month's notice. Irving v. Wilson, 4 T. R. 485, 2 B. and C. 737," 4 B. and C. 211.' The intent of the notice is, that the defendant may know where to find the plaintiff, in order to tender him amends on the receipt of the notice. Per Lawrence, J., Williams v. Burgess, 3 Taunt. 129. A description of the plaintiffs in the notice as, "late of Rotherhithe, in the county of Surrey," has been held sufficient. Wood V. Folliott, 4 B. and P. 552 (n). Limitation of action.'] If any action or suit shall be brought or commenced against any person or persons, for ariy thing by him or them done, in pursuance of that or any other act or acts of parlia- n»ent then in force, or thereafter to be made, relating to his majes- ty's revenues of customs and excise, such action, or suit, shall be commenced within three months next after the matter or thing done. 28 Geo. III. c. 27, s. 23. Under this section the action must be commenced within three lunar months. Croker v. Ji' Ta- vish, 1 Bingh. 307." The defendant may plead the general issue, and give the special matter in evidence. 23 Geo. III. c. 70, s. 33, 24 Geo. III. sess. 2, c. 47, s. 35. ACTIONS BY EXECUTORS AND ADMINISTRATORS. Where an action is brought by an executor or administrator, in his representative capacity, he must first (unless it be admitted on (he pleadings) prove himself to be executor or administrator, and then establish the cause of action, as in other suits. Evidence of title, as executor or administrator, where necessary.] Where the plaintiff declares as executor or administrator, upon a cause of action arising in the time of his testator or intestate, and makes profert of the probate or letters of administration, the de- « 18 Eng. Com. Law Rep«. 279. i> 9 Id. 2S2. ' 10 Id. 310. ^ 8 Id. 329. 462 Actions by Executors and Administrators. fendant cannot, under the general issue, deny the title of the plain- tifTas executor or administrator. Thus in an action of assumpsit by an administrator, on promises to Ihe intestate, the plea of non as- sumpsit admits the title of the plaintiifas administrator, and the de- fendant will not be allowed to insist on the production of the letters of administration, or to object that they arc not duly stamped, Thynne v. Prothcro, 2 M. and S. 553, nor that the supposed intes- tate has made a will and appointed an executor. Marsjield v. Marsh, 2 Ld. Rayyn. 824. So in an action of trover by an administrator, on the possession of his intestate, if the defendant pleads the gen- eral issue, he will not be allowed to controvert the title of the plain- tiff as administrator. Ibid. The plea of the general issue, how- ever, only admits the title stated in the declaration, and, therefore, if that title be insufficient, the plaintiff cannot recover. Thus in an action by an administrator, on a judgment recovered by his in- testate in the King's Bench, at Westminster (which is bonum noia- bile in Middlesex), where the plaintiff made profert of letters of administration from the archdeacon of Dorset, and the defendant pleaded a plea which admitted the letters of administration, it was held on motion in arrest of judgment, that in order to enable the plaintifT to recover, he ought to have had letters of administration from the Bishop "of London, and that the plea only admitted the plaintiff's title as stated, which was an insufficient title. Adams v. ten^etenants of Savage, 6 Mod. 134. Where the plaintiff declares upon a cause of action arising in the time of his testator, or intestate, and the defendant wishes to controvert his title as executor or administrator, he must do so by plea ; where the plaintiff alleged in the declaration that adminis- tration of all and singular the goods and chattels belonging to the intestate at the time of his death was granted to him by the Bishop of Chester, and the plaintiff, after craving oyer of the letters of administration, pleaded that the plaintiff had never been admin- istrator of all and singular the goods and chattels of the intestate in manner and form as the plaintiff had in her declaration in that behalf alleged, upon which issue was joined, it was held upon this form of plea, that the only fact put in issue was, whether the let- ters of administration mentioned in the declaration were duly grant- ed, and that the question whether the defendant resided in the dio- cese of Chester at the time of the death of the intestate constituted no part of the issue. If the defendant intended to insist that he did not reside in that diocese at the time, and that therefore the administration did not operate upon his debt, he ought to have pleaded the fact specially. Stokes v. Bate, 5 B. and C. 491.' Where the plaintiff, executor, or administrator, declares on a cause of action arising in his own time, and makes profert of the •11 Eng. Com. Law Reps. 28?. Actions by Executors and Administrators. 463 probate or letters of administration, and the defendant pleads the general issue, such plea does not admit the plaintiff's title as execu- tor or administrator, and it must be proved. Thus, where the plaintiff declared as administrator, in an action of trover, on a conversion in his own time, it was held, that the plea of not guilty, did not admit his title as administrator, and that as the letters of administration were not properly stamped, he could not recover. Hunt V. Stevens, 3 Taunt. 113, but see Watson v. King, 4 Campb. 272. But in such case as the naming himself administrator is mere surplusage. Com. Dig. Pleader, (2 D. 1,) if the plaintiff could have proved himself in actual possession of the goods for which the ac- tion was brought, it seems that it would not have been necessary for him to give evidence of the letters of administration, if the ac- tion were against a mere wrong-doer, any possession in such case being sufficient, see ante, p. 401. Where, either on a plea denying the representative character of the plaintiff, or in an action on a cause of action arising in the plaintiff's own time, it becomes necessary to prove the plaintiff's title as executor or administrator, the probate or letters of admi- nistration must be produced, see ante, p. 59. Where the grant of letters of administration is merely void, the plaintiff cannot recover, but it is otherwise where it is only voida- ble. Where the grant of letters of administration is by the arch- bishop, and there are no bona notabilia within his province, such grant is merely void, for each archbishop has supreme jurisdiction, and neither of them can act within the province of the other. Shaw V. Staughton, 2 Leo. 86, Hardr. 216, Com. Dig. Administra- tion {B. 3), Where there are bona notabilia in one diocese of a province, the administration belongs to the bishop of that diocese, but if the metropolitan of that province, in which such diocese is, grants administration, such grant is voidable only, and not void, for it is in force till reversed by sentence, since the metropolitan has jurisdiction over all the dioceses within his province. 3 Bac. Ab. 37, Com. Dig. Administration, (B. 3). Where there are bona nota- biliain two dioceses of the same province, the grant of administra- tion belongs to the archbishop. Com. Dig. Administration, (B. 3,) 5 B. and C. 493. And where a man dies intestate, leaving bona no- tabilia in the several provinces, administration shall be granted by each archbishop for the goods in his province. Com. Dig. ubi sup. Bona notabilia are goods to the value of 5/. 93 Canon, Jac. 1, Com. Dig. Administration {B. 4). Debts on recognizances, statutes, or judgments, are bona notabilia, where they were acknowledged or given. Ibid. {B. 4.) Specialities, as bond debts, arc bona nota- bilia in the diocese where they are found at the time of the testa- tor's or intestate's death. Ibid. But debts by simple contract, as a bill of exchange, Yeomans v. Bradshaw, Carth. 373, are bona nota' 464 ^^citons by Executors and Administrators. bilia in the province in which the debtor resides at the time of the testator's death. Com. Dig. Administratinn, {B. 4). A lease or term for years is ho7ia notabilia in the diocese in which the lands lie. Ibid. But lands devised to executors for payment of debts and legacies are not bona notabilia. 11 Vin. Ab. 80. Whether the defendant, when he denies the title of the plantiff as executor, can show tUcit probate has been granted by the ordin- ary, where it ought to have been granted by the metropolitan, ap- pears to be doubtful. If such grant be void, then it would be good evidence under the plea, that the plaintiff is not executor. It is clear that administration, granted by a bishop or other inferior judge, when it does not belong to him, is void, Com. Dig. Admini- tration, {D. 5) ; and in one case it is said, that a probate by the diocesan in case of bona notabilia, is void, but a prerogative pro- bate where there are no bo7ia notabilia, is only voidable, R. v. Loggan, 1 Str. 75; but Lord Macclesfield appears to have been of opinion, that a probate granted by an inferior judge is not void, but only voidable until reversed. Comber^s case, 1 P. Wms. 767, 1 Saund. 275, a (n). The reason given for the distinction by Lord Macclesfield is, that an executor takes his authority from the will, but an administrator from the ordinary. Whether the probate be void or not seems to depend on the fact of the ordinary having or not having jurisdiction. The metropolitan has a jurisdiction throughout his province, but the ordinary only in his diocese, and if there be no bona notabilia there, he has no jurisdiction, and the probate would seem to be void. So it is said in Buller^s JVisi Prius, 247, that the adverse party may prove that the testator left bona notabilia against the probate by an inferior court, for then such court had no jurisdiction ; and see Allen v. Dundas, 3 T. R. 131. Where in an action on a cause of action arising in the executor's own time, or where the title of the plaintiff as executor has been (denied by the defendant in his plea, it is good evidence that the probate was forged. B. JV. P. 247, ante, p. 83. In an action brought by several as executors, probate granted to one only of a will appointing all is evidence of the title of all. Wallers v. Pfeil, 1 M. and M. 362. Defence. It has been already stated in what cases the defendant may give evidence to disprove the title of the plaintiff as executor or admi- nistrator. With regard to the cause of action, the evidence in defence will be the same as in an action between the defendant and the testator or intestate. But on a plea of the statute of limi- tations to a declaration containing only counts on promises to j^ctiotis by Executors and Administrators. 465 the testator, the plaintiff will not be allowed to give evidence of promises or acknowledgments to himself, after the death of the tes- tator. Dean v. Crane, 6 J\'lod. 309. Sarell v. Wine, 3 East, 409. In an action against several executors, to take the case out of the sta- tute of limitations as to all, there must be an express promise in writing by all. Tullock v. Hanley, R. and M. 416. 9 Geo. 4, c. 14, ante, p. 255. Evidence of 'payment.'] Payment of a debt (o an executor who has obtained probate of a forged will, is a discliarge in an action brought against the debtor by the rightful administrator on revo- cation of the probate. Allen v. Dundas, 3 T. R. 125. But a pay- ment of money under the probate of a supposed will of a living per- son would be void; because, in such case, the ecclesiastical court has no jurisdiction, and the probate can have no effect. Id. 130 ; and see Woolley v. Clarke, 5 B. and A. 744.'" Evidence in action against executor de so7i tort.] In an action of trover or trespass by a rightful executor or administrator, against an executor de son tort, the latter may, under the general issue, and in mitigation of damages, give evidence of payments made by himself in the rightful course of administration : but should those payments amount to the full value of the goods claimed, the plain- tiff will still, as it seems, be entitled to a verdict for nominal da- mages. See ante, p. 412: but see Woolley v. Clarke, 5 B. and A. 744." supra. And such payments shall not be allowed in damages, if there be a failure of assets, and the lawful executor would by these means be divested of his right of preferring one creditor to another, of equal rank, or giving himself the same preference. 2 Bl Com. 508. Off. Ex. 182. Toller, 3G5. The non-joinder, as plaintiff, of another executor, must be plead- ed in abatement, and cannot be given in evidence under the gene- ral issue. ConL Dig. Abatement, {E. 13.) 1 Saund. 291, i (n). Competency of Witnesses. In an action at the suit of an executor or administrator, if the estate of the testator or intestate is insolvent, a person who has an unsatisfied demand upon it, is not a competent witness for the plain- tiff! Craig V. Cundell, 1 Campb. 381 ; but see Davies v. Davies, 1 M. and M. 345. But unless the estate is insolvent, the creditor is a competent witness. Paidl v. Brown, 6 Esp. 34. Davies v. Davies, 1 M. and M. 345. In an action by an executor, a paid legatee is a competent witness to increase the estate. Clarke v. Gannon, R. and M 31. • ■ 7 Eng. Com. Law Reps. 249. 59 466 ACTIONS AGAINST EXECUTORS AND ADMINISTRATORS. In an action against an executor or administrator, the plaintiff must prove that the defendant is executor or administrator, if that fact is denied by plea, and the cause of action, as stated. An action at law cannot be maintained for the distributive share of an intestate's property against the administrator, nor against his executor, although he may have expressly promised to pay. Jones V. Tanner, 7 B. and C. 542." Evidence on -plea of ne ungues executori] If the defendant in- tends to deny his being executor or administrator, he must plead such denial specially, for unless pleaded, his representative cha- racter is admitted. The proof of the issue on this plea lies upon the f)lain(i(f, and he may support it by production of the probate, or etters of administration, see ante, p. 59, or by secondary evidence of them, after a notice to produce served upon the defendant ; in such case, as the presumption of law is, that the probate or letters are in the possession of the party who is alone entitled to them, it does not seem necessary to give any evidence in order to show that they are in the defendant's possession. Some proof of the identity of the defendant, and of the person named as executor in the probate, must be given. The plea of ne ungues executor, does not deny the cause of action, but only that the defendant is one of the representatives of the testator. 1 Sound. 207, a (n). Upon the plea of ne u7iques executor, it is sufficient to give evi- dence of such circumstances as will render the defendant liable as executor dc son tort. What acts will make a man executor de son tort, is a question of law ; but it is for the jury to say whether such facts are sufficiently proved. Padget v. Priest, 2 T. R. 1)7. Evi- dence of slight acts of intermeddling with the property of the de- ceased will be sufficient. In one case, merely taking a Bible, and in another a bedstead, was held sufficient. JVoy, 69. So living in the house and carrying on the trade of the deceased. Hooper v. Sum- mersett, 1 Wightic. 16; suing for receiving or releasing the debts due to the estate. Com. Dig. Administrators (C. 1) ; entering on a lease, or term for years, Pjac. Ah. Executors, B. 3; pleading any other plea than ne ungues executor, to an action brought against him as executor, ihid., will be evidence to prove the party an exe- cutor de son tort. So where A. the servant of B. sold goods of C, an intestate, both before and after C.'s death, in pursuance of orders given by C. in his lifetime, and paid the money arising from such sale into the hands of B., it was held that B. was an executor de son tort. Padget v. Priest, 2 7. R. 97. And where a creditor took ■ 14 Eng. Com. Law Reps. 97. jictions asainst Execulors and Administrators. 467 » an absolute bill of sale of the goods of his debtor, but agreed to leave them in his possession for a limited time, before the expira- tion of which time the debtor died, and the creditor took and sold the goods, it was held that he had thereby rendered himself e.recw- tor de son toi't. Edwards v. Harhen, 2 T. R. 587. Merely lock- ing up the goods of the deceased, directing the funeral in a manner suitable to the estate, and out of the effects of the deceased ; feed- ing his cattle, repairing his houses, or providing necessaries for his children will not render the party liable as executor de son tort, for they are merely offices of kindness and charity. Toller, 40. Bac. Ab. Executors, B. 3. Com. Dig. Administrator (C. 2). In an- swer to the evidence adduced to prove him executor de son tort, the defendant may show that he took possession of the intestate's goods under a fair claim of right. Fleming v. Jarratt, 1 Esp. 335. Com. Dig. Administrator (C 2); or that he acted under the au- thority of the rightful administrator, ii/a//u. Elliott, Peake, 86; but it is no defence, that he acted as the agent of one named executor, but who has never proved the will. Cottle v. Aldrich, 1 Stark. 37.» In assumpsit against several defendants, as executors, with plea of Tie ungues executors, the iplaint'ifi' may have a verdict against the real executors on the counts laying the promises by the testator, and the other defendants must be discharged. Griffiths v. Frank- lin, 1 M. and M. 146. Evidence on plene administravit, proof of assets.] Where the defendant pleads plene administravit, and the plaintiff replies that the defendant had assets, the issue lies upon the plaintiff, who must prove assets existing at the time of the writ sued out. Mara v. Quin, 6 T. R. 10. If the assets came to the hands of the defendant after the writ sued out, the plaintiff should reply that fact special- ly, and will not be allowed to give it in evidence under the general replication. Id. 11. If the plaintiff reply that he sued out his ori- ginal on such a day, and that the defendant had assets then, and the defendant takes issue that he had not assets, then the plaintiff need not give in evidence a copy of (he original, to prove the time of its being taken out, because the defendant has admitted it in his rejoinder; but if the plaintiff reply assets at the time of exhib- iting his bill, viz. on such a day, and conclude his replication to the country, then, though the plaintiff states his bill to have been exhibited on the first day of the term, yet if in fact it was exhibited afterwards, the defendant may take advantage of it on the evidence, so that he shall not be bound for what he paid before. B. JV. P. 144. In order to prove assets, the plaintiff may give in evidence the inventory exhibited by the defendant in the ecclesiastical court; but a copy of the inventory signed by the appraisers, but not by •2 Eng. Com. Law Reps. '2?,5. 468 Actions against Executors and Administrators, the executor, is not evidence. R ^. P, 140. Where the defend- ant has not distinguished the sperate from the desperate debts in the inventory, it has been held that the whole shall, ^Wma/ade, be taken to be assets, so as to throw the onus of proving some of them desperate upon the defendant. B. JV. P. 140. Smith v. Davis, Seho. A'. P. 712. But in another case Lord Ellenborough ruled, that it was necessary to prove, presumptively at least, that these debts have been paid, and that it was the universal practice upon the plea oi plene adminislravit to prove that effects came into the hands of the defendants. Giles v. Dyson, 1 Stark. 32.p So, where, to prove assets, an account rendered by the defendants to the plain- tiff" was given in evidence, in which they stated that 1,000/. had been awarded as due to the testator's estate. Lord Ellenborough held that this was not sufficient proof of assets, as it did not show that any part of the sum awarded had been received by the exe- cutors. IVilliams v. Innes, 1 Campb. 364. If an executor submit to arbitration, such submission, with the award, is not an admission of assets, the arbitrators not directing the defendant to pay the mo- ney. Pearson v. Henry, 5 T. R. 6. But a submission to arbitra- tion, and an agreement to pay what shall be awarded, with an award to pay accordingly, is an admission of assets to the amount of the sum so awarded. Barry v. Rush, 1 T. R. 691. Worihinglon V. Barloiv,! T. R. 453. Proof of an admission by an executor that the debt was just, and that it should be paid as soon as he could, is not evidence to charge him with assets. Hindsley v. Russell, 12 East, 232. So the payment of interest upon a bond of the testator is not an admission of assets. Cleverley v. Brett, cited 5 T. R. 8 . But a probate stamp is prima facie evidence that the executor has received assets to the amount covered by the stamp. Foster v. Blakelock, 5 B. and C. 328.i - Though the pleaof j(9Ze72e adminislravit in an action of assumpsit ftgainst an executor, admits a cause of action, yet it does not admit the amount, which must be proved by the plaintiff"; but in an ac- tion of debt, in which a specific sum is demanded, the specific debt is admitted, and need not be proved. Shelh/s case, 1 Stark. 296, B. JV. P. 140. On a plea by several executors that they have fully administer- ed, if some appear to have assets in their hands, and the others not, the latter are entitled to a verdict. Parsons v. Hancock, 1 M. and M. 330. Evidence on plene administravit — in answer to proof of assets — payment of debts.'] When the plaintiff has given prima facie evi- dence of assets, the defendant,in answer to such evidence, may prove that those assets have been exhausted by payment of other debts of the deceased, of as high, or of higher degree than the debt of the plaintiff, provided such payments were made before the writ V 2 En^. Com. Law Reps. 282. i 11 Id. 246. Actions ao-ainst Executors and Administrators. 469 o purchased. The course of distribution is as follows : 1. All funeral expenses, and the charges of proving the will, or of taking out let- ters of administration ; and the defendant may show that he has retained money in his hands to pay for the expenses of administra- tion, to which he has made himself liable without proving that he has paid them. Gillies v. Smither, 2 Stark. 528/ 2. Debts due to the crown by record or specialty. 3. Certain debts created by particular statutes. 4. Debts of record; but unless such debts be docketed according to stat. 4 and 5 W. and M. c. 20, they only rank as simple contract debts. Hickey v. Haytor, 6 T. R. 384. 5. Debts due by specialty, and rent. 6. Debts due by simple con- tract, first to the king, and, secondly, to a subject. Toller, 258,278. Com. Dig. Administration (C. 2). If the defendant has paid debts to the amount, after the suing out, but before notice of the plaintiff's writ, or debt, he must plead such defence specially, and cannot give it in evidence under plene administravit, under which no payments made after the action commenced can be given in evidence. Dyer, 32, a (margin). Com. Dig. Administration (C. 2). In order to prove the existence and payment of the debt set up by the defendant, he may call the creditor, who is a competent witness, to establish both those facts, B. JV. P. 143. But where the action is brought on a bond of the deceased, and the defendant pleads plene administravit, and relies upon the payment of other bonds of the deceased, the execution of such bonds must be proved by calling the attesting witness in the usual manner, even though the bonds have been destroyed. Gillies v. Smither, 2 Stark. 530. «■ Where, however, the defendant is sued in assumpsit, on a simple contract, and pleads plene administravit, and relies upon the pay- ment of bonds of the deceased, it will be sufficient, it is said, to prove the payment, B. JV. P. 143, for, though no bond, it is yet a good administration. Evidence on plene administravit, in answer to proof of assets — re- tainer.'] The defendant may either plead a retainer of a debt due to him (which must be a debt of an equal or higher degree than the debt for which the action is brought, in order to entitle the de- fendant to retain it), or may give it in evidence on the plea oi plene administravit. 1 Saund. 333 [n). So the defendant may retain for payments which he has made out of his own monies before the is- suing of the writ, in discharge of debts of the deceased of equal or higher degree than the plaintiff's. Co. Litt. 283, a. B. JV. P. 141. An executor de son tort cannot retain for his own debt, though of higher degree, and though the rightful executor, after action brought, has consented to the retainer. Curtis v. Palmer, 3 T. R. 587. In answer to such evidence of retainer, the plaintiff may ' 3 Eng. Corn. Law Reps. 460. 470 jictions against Executors and Jidministrators . show the will, and who are the rightful executors. B. JV. P. 143, Where the defendant pleads a retainer, and also a judgment reco- vered, which, together, cover the assets, it is sufficient for the plain- tiif to falsify either claim. Camj)ion v. Bentley, 1 Esp. 344. Evidence on plea of outstanding judgments and dehtsJ] The de- fendant cannot, under the plea oi plene administravit, give evidence of the existence of outstanding debts of a higher nature. B.JV. P. 141. Such defence must be pleaded; and where the defendant pleads a judgment obtained against him for 100/. and that he has not goods, except to the value of 5/., and the plaintiff proves that he has 100/., yet he gains nothing, for the substance of the issue is, that the de- fendant has not above what will satisfy the judgment. Moon v. Andrews, Hob. 133 ; 1 Saund. 333 {n). Where the defendant pleads an outstanding judgment, the plaintiff may reply that it was ob- tained or kept on foot by fraud, which the defendant is bound to traverse in his rejoinder; and on this issue the plaintiff may either give in evidence that the debt was not a just one, or that less is due than the sum for which judgment has been given. 2 Saund. 50 (n). In answer to the latter evidence, which is prima facie proof of fraud, the defendant may show that the judgment was entered for more than was due by mistake. Pease v. Naylor, 5 T. R. 80. If a judgment is pleaded, and per fraudem replied, upon which issue is taken, and it appears in evidence that the creditor was willing to take less than is recovered, it is proof of fraud ; but if it be shown that the administrator had not assets to pay that sum, it is no fraud. Per Cur. Parker v. Atfield, 1 Salk. 312. If the defendant plead several judgments recovered against himself, to which the plaintiff replies fraud, it will entitle the plaintiff to a general judg- ment, if he can avoid any one of them ; for a judgment recovered against an executor being an admission of assets, if any one of the judgments be falsified, the defendant admits by his plea, that he has more assets than will satisfy the other judgments by as much as the judgment, so falsified, amounts to. 1 Saund. 337, a (n). When the judgments, or debts pleaded, are upon penalties, it seems the right way of replying is, to say that the credi*:or would have accepted the less sums, but the defendant either would not pay, or had paid them, but kept the judgments, or bonds, 07i foot-by fraud and covin; and the plaintiff, on issue joined thereon, may give in evidence such matter as will serve to avoid the penalties. For if he replies, ge- nerally, that the judgments were for less sums, and the defendant has assets above what will satisfy them, on the issue that he has not, the defendant has a right to insist on the penalties as the debts. 1 Saund. 334 (n), citing Tompson v. Hart, 3 Lev. 368, Bell v. Bol- ton, 1 Lutw. 450. i Actions against Heirs. 471 An executor may confess a judgment to a creditor in equal de- gree with the plaintiff, pending the action, and plead it in bar ; and though done for the express purpose ef depriving the plaintiff of the debt, it is good both at law and in equity. 2 Saund. 51, {n). To/putt V. Wells, 1 M. and S. 404. Pickstock v. Lyster, 3 M. and S. 375. Wh'ere the defendant pleaded a judgment recovered, and the plaintiff replied that it was obtained and kept on foot by fraud, the judgment creditor was called by the defendant to prove that the debt was a fair one ; but Eyre, C. J., rejected his testimony, ob- serving, that by establishing the validity of his own debt, he made good his priority of claim to be paid out of the assets of the intes- tate, and that this was such' an interest as rendered him incompe- tent. Campion v. Bentley, 1 Esp. 343. Evidence in an action suggesting a devastavit."] If an executor, or administrator, in an action brought against him as such, admit assets by his pleading, he will not, in an action of debt on the judg- ment, suggesting a devastavit, be allowed to show that he has not assets; and it will be sufficient for the plaintiff, upon issue on the plea of non devastavit, to prove the former judgment and the return of nulla bona to the fieri facias. Erving v. Peters, 3 T. R. 685. Skelton v. Hawling, 1 fVils. 259. Where the defendant pleads non est factum testatoris, or a release to the testator, or payment by him, or non assumpsit, these pleas admit asset. 1 Saund. 335 (n). So a judgment for the plaintiff on demurrer, or by default, will be evidence of assets. Rock v. Leighton, 1 Salk. 310. ACTIONS AGAINST HEIRS. In an action of debt on the bond of the ancestor against the heir (which only lies where the heir is expressly named in the bond, Co. Lit 209, a), the usual plea is riens per descent. Evidence on plea of riens per descent.] Upon issue joined on the plea of riens per descent, the execution of the bond being admitted by the plea, the plaintiff must prove the assets by showing that the ancestor died seised of an estate in fee, and that it descended from him, as the person who was last actually seised, to the defendant as his heir. The seisin of the ancestor may be proved by showing that he was in possession of the lands, or in the receipts of the rents and profits, ante, p. 343. His death must then be proved, and that the defendant is his heir. See ante, p. 345. Where the lands have descended from the obligor to another who has died seised, and from him to the 472 mictions a trains t Heirs. & defendant, the descent must be stated specially, as that the defend- ant was the heir of A. (who died last seised), who was the heir of the obligor ; and so it must be where there have been several in- termediate descents ; for if the declaration be against the defend- ant, as heir of the obligor, and it appear in evidence on the plea o{ ricns per descent, from the obligor, that the defendant is heir of the heir of the obligor, it is a fatal variance. 2 Saund. 7, d (n), Jenk's case, Cro. Car. 151. IJut if the intermediate heirs have not had actual seisin of the fee which descended from the obligor, it seems unnecessary to notice them in the declaration. 2 Saund. 7, d (?i)- Kellow V. Rowden, Carth. 12G. It is sufficient in the de- claration to charge the defendant as heir generally, without stat- ing how heir, and the plaintiff may show how heir in evidence. Denham v. Stephenson, 1 Salk. 355. Evidence on plea of riens per descent — ichat are assets^ It is a general rule, that though the ancestor devise the estate to his heir, yet if he take the same estate in quality and quantity that the law would have given him, the devise is a nullity, and the heir is seised by descent, and the estate assets in his hands. 2 Saund. 8, d (n). Reading v. Royston, 1 Salk. 242. So where the land is devised charged with the payment of a sum of money, Clarke v. Sjjiith, 1 Salk. 241, or of debts. Allan v. Heber, 2 Str. 1270. So a rent in fee, issuing out of the heir's land, and descending to him, though extinct, for it has continuance for this purpose. Co. Litt. 374, b. So if there be a mortgage for years, the reversion in fee in the mortgagor is legal assets, and the plaintiff may have judg- ment with a cesset executio; but where there is a mortgage in fee, the equity of redemption is not legal assets. 2 Saund. 8, e (n). Plunket V. Penson, 2 Atk. 294. So a copyhold in fee is not assets. 4 Rep. 22, a. By the statute of frauds, 29 Car. II. c. 3, s. 12, an estate -pur autrie vie, which comes to the heir as special occupant, is made assets by descent. Lands which descend in tail are not assets. 1 Roll Ab. 269 {B.) A reversion expectant on an estate in tail is not assets, upon the general issue of riens per descent. Mildaxfs case, 6 Rep. 42, a; Kelloiv v. Rowden, Carth. 129. A re- version after an estate for life is quasi assets, but it ought to be pleaded specially by the heir, and the plaintiff may take judgment of it quando acciderit. Ibid. Dyer, 373, b. If the defendant pleads riens per descent, and the jury find that he has something, however small it may be, and insufficient to dis- charge the debt, the plaintiff is entitled to a general judgment for the debt, damages, and costs, and to sue out the like execution against him as on a judgment for his own debt. 2 Saund. 7, a (n). It is, therefore, unnecessary to prove the value of the assets de- scended. I mictions against Heirs. 473 Evidence on plea ofriens per descent — replication under stat. 3 fV. and M. c. 14, s. 5.] At common law, if the heir had bond fide aliened the lands, which he had by descent, before an action was commenced against him, he might discharge himself by pleading that he had nothing by descent at the time of suing out the ivrit or filing the bill, and the obligee had no remedy at law ; 2 Saund. 7, e (n) ; though under this issue he might sliow that the heir had aliened the lands by covin. Ibid. Dyer, 141), a. margin. But by 3 W. and M. c. 14, s. 5, where any heir at law shall be liable to pay the debts of his ancestor, in regard of any lands, tenements, or hereditaments, descending to him, and shall sell, alien, or make over the same, before any action brought, or process sued out against him, such heir at law shall be answerable for such debt or debts, in an action or actions of debts to the value of the said land so by him sold, aliened, or made over, in which cases all creditors shall be preferred as in actions against executors and administrators ; and such execution shall be taken out upon any judgment, or judg- ments, so obtained against such heir, to the value of the said land, as if the same were his own proper debt or debts, saving that the lands, tenements, or hereditaments, bond fide aliened before the action brought, shall not be liable to such execution. And by sec- tion 6, where any action of debt upon any speciality is brought against any heir, he may plead riens per descent, at the time of the original writ brought, or the bill filed against him, and the plaintiff may reply that he had lands, tenements, or hereditaments from his ancestor, before the onginal writ brought, or bill filed; and if, upon the issue joined thereupon, it be found for the plaintiff, the jury shall inquire of the value of the lands, &,c. so descended, and there- upon judgment shall be given, and execution shall be awarded as aforesaid ; but if judgment be given against such heir by confession of the action, without confessing the assets descended, or upon demur- rer, or nil dicit, it shall be for the debt and damages, without any writ to inquire of the value of the lands, &c., so descended. When issue is joined on this replication (which may, it seems, be pleaded, though the heir has 7wt aliened the lands), 2 Saund. 8 (w), the plaintiff, in addition to the usual proofs under the plea o{ riens per descent, must be prepared with evidence of the gross value of the lands descended, for if the jury neglect to find the value, the court will award a venire de nova. Jeffrey v. Barrow, 10 Mod. 18. Evidence in action against heir and devisee.'] At common law, if the ancestor had devised the lands, a bond creditor had no re- medy against the devisee. But by stat. 3 \V. and M. c. 11, s. 2, all wills and testaments, limitations, dispositions, or appointments, of or concerning any manors, messuages, lands, tenements, or heredita- ments, or of any rent, profits, term, or charge out of the same, 60 474 Actions against Justices. whereof any person at the time of his or her decease, shall be seised in fee simple in possession, reversion, or remainder, or have power to dispose of the same by his or her last will or testament, there- after to be made, shall be deemed and taken only as against such creditor or creditors as aforesaid, his, her, or their heirs, successors, executors, administrators, and assigns, and every of them, to be fraudulent, and clearly, absolutely, and utterly void, &c. And by section 3, in the cases before mentioned, every such creditor or cre- ditors shall and may have and maintain his, her, or their action of debt, upon his, her, or their said bonds and specialties, against the heir and heirs at law of such obligor or obligors, and such devisee or devisees, jointly, by virtue of this act ; and such devisee or de- visees shall be liable and chargeable for a false plea by him or them pleaded, in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lands or tenements to him descended. And by section 7, all and every devisee and devisees, made liable by this act, shall be liable and chargeable in the same manner as the heir at law, by force of this act, notwithstanding the lands, tenements, and hereditaments to him or them devised shall be aliened before the action brought. By section 4, devisees for payment of debts, and portions of children, in pursuance of a settlement before marriage, are excepted from the operation of the act. An action of covenant did not lie against a devisee under this act, Wilson v. Knubley, 7 East, 128; but see the provisions of 11. Geo. IV. and 1 Wil. IV, c. 47 ; nor does the act extend to any settlement or disposition made by the obligor by deed in his lifetime. Parsloe v. Weedon, 1 Eq. Ah. 149, 2 Saund. 8, c (n). The act of W. and M. is repealed by 11 Geo, IV. and 1 Wil. IV. c. 47. The cases on the former statute are applicable to the new act, which re-enacts the provisions of the old one, and extends the remedy against the heir and devisee to the case of covenants and other specialties. • ACTIONS AGAINST JUSTICES. In an action against a justice of the peace, the plaintiff, in addi- tion to his other proofs, must prove the delivery of a notice under 24 Geo, II, c. 44, and the commencement of the action in proper time. By 24 Geo, II, c. 44, s. 1, no writ shall be issued out against, nor any copy of any process at the suit of a subject, shall be served on any justice of the peace, for any thing by him done in the execu- tion of his office, until notice in writing of such intended writ or j9ctions against Justices. 475 process shall have been delivered to him, or left at the usual place of his abode by the attorney or agent for the party who intends to sue, or cause the same to be sued out or served, at least one cal- endar month before the suing out or serving the same, in which notice shall be clearly and explicitly contained the cause of action which such party hath or claimeth to have against such justice of the peace ; on the back of which notice shall be jndorsed the name of such attorney or agent, together with the place of his abode. By section 5, no evidence shall be permitted to be given by the plaintiff of any cause of action, except such as is contained in the notice thereby directed to be given. To lohat cases the statute extends.'] It has been frequently ob- served by the courts, that the notice which is directed to be given to justices and other officers, before actions are brought against them, is of no use to them when they have acted within the strict line of their duty, and was only required for the purpose of protect- ing them in those cases where they intended to act within it, but by mistake exceeded it. Per Lord Kenyon, Greenicay v. Hurd, 4 T. R. 553. It has uniformly been held, that where a party bona fide believes or supposes he is acting in pursuance of an act of Parlia- ment, he is within the protection of such a clause. Per Lord Ten- terden, Beechey v. Sides, 9 B. and C. 809.' Therefore, where a magistrate committed the mother of a bastard child, though two magistrates only have jurisdiction in such case, he was held enti- tled to notice, for he intended to act as a magistrate at the time, however mistakenly. Wheller v. Toke, 9 East^ 364. So where he has authority 'over the subject matter of the complaint, though the place where the offence is committed is not within his jurisdic- tion. Prestridge v. Woodman, 1 B. a7id C. 12.' So where a mag- istrate committed a driver for being on the shafts of a cart standing still, the act only authorizing commitment for riding on them. Bird V. Gunston, cited in Cook v. Leonard, 6 B. and C. 354." Where the capacity in which plaintiff acted is equivocal, as where a lord of a manor, being also a justice of peace, seized a gun in the house of an unqualified person, it will be presumed that he acted as a justice. Briggs v. Evelyn, 2 H. Bl. 114. But where the act in question has not been done in the capacity of justice, and cannot be referred to that character, but is wholly diverso intuitu, notice is not required: thus where a justice of the peace, who was also a mayor of a borough, received a fee for granting a license to a publican, it was held that such fee could not have been taken by him in his character of justice, and that he was not within the sta- tute. Morgan v. Palmer, 2 B. and C. 729.'' So in an action against a person to recover a penalty for acting as a justice of the peace, not being duly qualified, no notice need be proved. fVriglit v. Horton, • 17 Eng. Com. Law Reps. 502. • 8 Id. 9. " 13 Id. 196. '^ 9 Id. 232. 47G Actions a (rains t Justices. \5 Holl, 558." The statute extends only to actions of tort, and not to assumpsit. B. JW P. 24. JVotice—form o/!] The notice must specify the writ or process intended to be sued out, as well as the cause of action. Lovelace V. Carrie, 7 T. R. G31. A notice that an action on the case for false imprisonment and assault would be brought, was held impro- per. Strichland v. Ward, ib., {ii). It is unnecessary to name all the parties to be included in the action, or to express whether it will be joint or several. Box v. Jones, 5 Price, 178. So a notice to a niagi.strate is sudlcicnt to warrant a writ and proceedings against the magistrate and a constable jointly; and where such a notice was given, and the plaintiff, after a month had expired, sued out a writ against the magistrate alone, and afterwards abandoned that writ, and sued out another against the magistrate and consta- ble jointly, the notice was held sufficient. Jones v. Simpson, 1 Ci-om. and Jer. 174. It seems that the statute does not require the Christian name of the attorney to be indorsed on the notice ; at all events the initials arc enough ; thus where the indorsement was " T. and W. A. Williams," the names of the attornies being Thomas Adams JVi//ia7ns ^ud William Adams ^'iVZiams, it was held sufficient. James v. Swift, 4 B. and C. 681 ;^ Maijhew v. Lock, 7 Taunt. 63.y It has been held that the attorney may describe himself generally of the town in which he resides, as of " Birmingham ;" Osbom v. Gongh, 3 B. and P. 550 ; but in Crooke v. Currie, Tidd, 28 (%), it was said by Thomson, B., that London, Manchester, or other such large town, generally, would not be sufficient. A notice writ- ten by the attorney, and signed by him thus, " Under my hand at Durham," is insufficient. Taylor v. Fenwick, cited 7 T. R. 035, and 3 B. and P. 551. If the notice describes the attorney as of "New Inn, London," which in fact is in Westminster, it is bad. Stears v. Smith, 6 Esp. 1 38. If the attorney's name and place of abode are in the body, instead of the back of the notice, it is sufficient ; for the intent of the statute is, that the justice may be able to ten- der amends to the party or liis attorne}^ Crooke v. Curry, coram Thomson, B. Tidd, 27 (yi). It is sufficient if the notice specify the writ or process, and the cause of action ; the form of action is not required to be set out. Sahin v. De Burgh, 2 Camph. 196. It should seem, however, that if it is specified, it must agree with the declaration ; for where the notice was of an action on the case for false imprisonment, &c., and the action brought was trespass, the objection was held good. Strickland v. Ward, 7 T. R. 633 (to). See also 4 Bingh. 511 — 2.* Where the notice stated, that a pre- cept called a latitat would be issued against the defendant " for the said imprisonment and sum of money," and the declaration was for assault, battery, and imprisonment, the notice was held good, " 3 Eni?. Com. Law Reps. 156. ■'10 1(1.441. r 2 Id. 27. » 15 Id. Gl. I Actions against Justices. 477 being sufficient to apprize the magistrate of the nature of the ac- tion about to be brought against him, so as to enable him to tender amends; and that the only effect which the omission of any mention of battery in the notice could produce, would be to exclude evidence of a battery at the trial. Robson v. Spearman, 3 B. and A. 493.* In stating the cause of action, it is sufficient to inform the defend- ant substantially of the cause of complaint. Tidd, 27. Jones v. Bird, 5 B. and A. 844." It seems that the cause of action, as sta- ted in the notice, must not vary from that proved, though stated with needless particularity : thus, where the notice described the defendant's warrant as directed to J Bark, and it was in fact di- rected to " the constable of Halifax" (which J. Bark was not), it was held insufficient. Aked v. Stocks, 4 Bingh. 509.° But the no- tice is not vitiated by being in the form of a declaration, and un- necessarily ample, if it express the cause of action with sufficient clearness. Brown v. Tanner, M'Clel. and Y. 469. Evidence of notice — delivery.'] The plaintiff must prove, that the notice was delivered to the justice, or left at the usual place of his abode, at least one calendar month before the suing out or serving of the writ. The month begins with and includes the day on which the notice was served. Castle v. Burdett, 3 T. R. 623. The notice may be proved by a duplicate original; See ante, p. 4, 162. Evidence of the commencement of the action.]' The plaintiff must prove, under the general issue, that the action was com- menced within six calendar months after the act committed. 24 G. II. c. 44, s. 8, ante, p. 457. In case of a continuing imprison- ment, a justice is liable to answer for such part of it, suffered un- der his warrant, as was within six calendar months before the ac- tion commenced. Massey V. Johnson, '[2 East, 67. If the impri- sonment ends on the 14th December, it is a sufficient commence- ment of the action if the writ issues on the 14th of June. Hardy V. Rylc, 9 B. and C. 603." The plaintiff must show that he pro- ceeded on a writ sued out within six months after the notice, though there be a continuing cause of action; for the notice fixes him to the trespass of which he complains ; therefore a second writ sued out of time must be connected bv continuance with one with- in time. Weston v. Fournier, 14 Easi,A9\. Unless the action ap- pear by the record to be brought in proper time, the plaintiff must produce the writ, or if it be returned, an examined copy of it, ante, p. 56 ; but the defendant may show the real time when the writ issued, in opposition to the teste. Johnson v. Smith, 2 Burr. 964. »SEng. Com. Law Reps. 355. b 7 ij. 277. cisld.60. <" 17 Id. 45C. 478 Actions against Justices. Evidence of cause ofactionJ] It must appear, that the cause of action arose in the county in which the action is brought. See ante, p. 458, 21 Jac, I. c. 12, s. 5. Where the defendant committed his servant for insolent disobedience, it was held that the action must be laid in the proper county, because he supposed he had a right to commit as a justice. Ilolton v. Bordero, cited -per cur. 5 Bingh. 339.'= In case of imprisonment under the warrant of a ma- gistrate, in order to connect the magistrate with the act, a notice to produce the warrant should be served upon the defendant, if the warrant be in his possession, so as to enable the plaintitf to give secondary evidence of its contents. But if the warrant remains in the hands of the officer, the latter must be served with a subpoena duces tecum. The connexion between the justice and the officer may likewise be proved by showing that the former has recognised the acts of the latter. Evidence of malice in action brought after conviction quashed.'\ By 43 Geo. III. c. 141, s. 1, in all actions against any justice of the peace, on account of any conviction made by him under any act of parliament, or for any act done by him for the levying of any pe- nalty, apprehending any party, or for the carrying of any such con- viction into effect, in case such conviction shall have been quashed, the plaintiff', besides the value and amount of the penalty levied upon him, (in case any levy shall hav^e been made,) shall not be en- titled to recover any greater damages than the sum of two-pence, nor any costs of suit, unless it shall be expressly alleged in the de- claration in the action, (which action shall be an action upon the case only,)^that such acts were done maliciously, and without any reasonable or probable cause ; and by section 2, the plaintiff" shall not be entitled to recover any penalty which shall have been levied, nor any damages or costs whatsover, in case such justice shall prove at the trial that such plaintiff" was guilty of the off"ence whereof he had been convicted, or on account of which he had been apprehended, or had otherwise suff'ered ; and that he had un- dergone no greater punishment than was assigned by law to such off"ence. . The magistrate is protected by the statute only where there is a conviction quashed. But an informal one is enough, as where the warrant of commitment falsely recited an information on oath by T. S., which was in fact laid by T. O. Massey v. Johnson, 12 East, 67. In an action against a magistrate for a malicious conviction the question is, not whether there was any actual ground for imputing the crime to the plaintiff, but whether upon the hearing there ap- peared to be none. The plaintiff" must prove a want of probable cause for the conviction, which he can only do by proving what passed upon the hearing before the magistrate, when the conviction • 15 Eng. Com. Law Reps. 462. ( Jidions against Justices. 479 took place. The magistrate has nothing to do with the guilt or innocence of the offender, except as they appear from the evidence laid before him. Per Gibbs, C. J., Burley v. Bethune, 5 Taunt. 583.' Defence. The defendant may show special matter under the general issue. See 21 Jac. I. c. 12, s. 5, recited ante, p. 458. In what cases Justices are "protected by evidence of conviction.'} The general rule with regard to the eftect of a conviction, when offered in evidence as a justification, in an action against a magis- trate, has been already stated. See ante, p. 109. Where the subject matter of the conviction is not within the jurisdiction of the justice, the conviction will be no defence in an action brought against him, for it is merely void. Thus where a person was convicted in four several convictions for exercising his ordinary calling on a Sunday, contrary to 29 Car. 11. c. 7, it was held, that as a man could only commit one offence under the statute on the same day, the three latter convictions were void ; and, it being an excess of jurisdiction, an action lay. Crepps v. Durdon, Cowp. 640, Ifi East, 21, 22. So where the defendant had convict- ed the plaintiff for destroying game, and, though (as it was proved) the plaintiff had effects which might have been distrained, and sufficient to answer the penalty, sent him to Bridewell, it was held that trespass lay. Hi/l v. Bateman, 1 Str. 710. So a conviction by two justices, under 17 Geo. II. c. 38, upon complaint of the over- seers of a parish against the late overseer, for refusing and neglect- ing to deliver over to them a certain book belonging to the parish, called the bastardy ledger, convicting him of the said offence, and adjudging that he should be committed to the common gaol, to be safely kept until he should have yielded up all and every books con- cerning his said office of overseer, belonging to the parish, was held void as to the adjucation respecting the imprisonment for excess, the same extending beyond what was previously required of the person convicted ; and a warrant of commitment founded on this conviction, and directing the gaoler to keep him, in the terms of the adjudication, was also held void in tola, for which trespass and false imprisonment would lie against the justices, although the con- viction had not been quashed. Groomc v. Forrester, 5 M. and S. 314. So where a conviction on a statute does not pursue the pro- visions of it on the face of it ; as where an information is to be laid at a special or petty sessions, and this does not appear on it. Gim- bert V. Coyney, M. and Y. 469. A warrant of commitment for re- n Eng. Com. Law Reps. 198. 480 jictions atrainst Justices ■© examination for an unreasonable length of time, is wholly void ; Davis Vf. Capper, 10 B. and C. 28. It appears to have been doubted, whether the plaintiff, in reply to the conviction relied on by the defendant, might not show by extrinsic evidence that the subject matter of the conviction was not within the jurisdiction of the defendant, though it seems quite clear, that if the magistrate have jurisdiction, it cannot be shown that he has come to a wrong conclusion. In Terry v. Huntington, Ilardr. 480, which was an action of trover brought to recover the value of goods levied under the warrant of the commissioners of excise, it was held, that it appearing upon special verdict, that they had adjudged low wines to be strong wines, and so had ex- ceeded their jurisdiction, the warrant was void ; and per Hale, C. J., where the jurisdiction itself is stinted and examinable, there their acts are so too, and their judgment is no estoppel if the mat- ter be not within their jurisdiction, which is a particular and cir- cumscribed one. So in the above cited case of Hill v. Bateman, extrinsic evidence was admitted to show that the plaintiff had effects which might have been distrained. So it is said by Lord Ellenborough, with regard to an order of justices for diverting a highway, that justices cannot make facts by their determination, in order to give to themselves jurisdiction contrary to the truth of the case. Welsh v. JVash, 8 East, 402, 1 B. and B. 439,s and see the observations of Le Blanc, J., 12 East, 67, 82. Fuller v. Potch, Carth. 346. It might, perhaps, be contended, that the conviction of a magistrate cannot be more conclusive upon the facts therein stated, than the sentence of an ecclesiastical court, or the judgment of an inferior court, in both of which cases evidence may be given to show that the court had no jurisdiction, ante pp. 102, 107. The case of Strickland v. Ward, 7 T. R. 634 (w), has been sometimes referred to as an authority to show that such evidence is not ad- missible, but it does not appear that the evidence in that case was offered for the purpose of proving a want of jurisdiction. " I gave my opinion," says Mr. J. Yates, " that this conviction could not be controverted in evidence ; that the justice, having a competent ju- risdiction f)f the matter, his judgment was conclusive till reversed or quashed." In Gray v. Cookson, 16 East, 23, it seems to have been the opinion of the court, that the plaintiff could not rely upon any matter which did not appear on the face of the conviction, and it appears to be now settled, that if the jurisdiction appears on the face of the conviction, it is conclusive. Basten v. Carew, 3 B. and C. 649," Fawcett v. Fowlis, IB. and C. 394.' Thus where a magistrate convicts under an act giving him jurisdiction in the case of boats; or for having partridges in possession, or keeping a dog without qualification, the plaintiff cannot show that there 8 3 Eng. Com. Law Reps. 137. MO Id. 'ill. i 14 id. 59. Actions against Justices, 48 1 was no boat, no partridge, or no dog. Brittain v. Kinnaird, 1 B. and B. 432. 442." In order to render the conviction a good defence, it must be con- nected with the commitment, and if it be a conviction for an offence differing from that recited in the commitment, it will furnish no justification, Rogers v. Jones, 3 B. and C. 409,' and semh. the guilt of plaintiff is not evidence in mitigation, S. C, R. and M. 129, So if the warrant of commitment does not show an offence over which the justice had jurisdiction, a previous regular conviction will be no defence. Wickes v. CluUerbuck, 2 Bingh. 483."" But where the warrant of commitment recited that the party had been charged on the oath of J. S., but it appeared in evidence that he was charged on the oath of J. O., it was held, that the recital of this false fact might be rejected, and that the warrant and conviction would then stand good. It was added by Le Blanc, J., that the objection would have assumed a very different shape, if there had been no informa- tion on oath of any person whereon to found the conviction. Massey V. Johnson, 12 East, 67, 82. Where a justice, instead of drawing up a regular conviction, ordered the offender into custody till he could settle the matter with the prosecutor, Vv'hich he accordingly did and was dismissed, it was held that the justice could not justify in an action of trespass. Bridgett v. Coyney, 1 M. and R. 211. The acts of a justice who has not duly qualified by taking the oaths, &c. are not absolutely void, so as to make him a trespasser. Margate Pier Company v. Hannam, 3 B. aJid A. 266." A commit- ment for a contempt must be by WTiting. Mayhew v. Locke, 2 Marsh. 377." It is not material that the conviction should be drawn up for- mally at the time when it takes place. It will properly bear date at the time when in fact it took place, and the court will give credit to it, as to a conviction made at that time, when produced in a col- lateral proceeding, such as an action of trespass ; however, they may inquire of the time upon any other occasion, when the convic- tion is directly impeached. Per Lord EUenborough, C. J., Gray v. Cookson, 16 East, 20, Massey v. Johnson, 12 East, 82, M'CL and Y. 478. Where the warrant and conviction state all the circumstances which are essential to give them validity, and are connected by in- ternal reference, no other evidence appears to be necessary than the production of them. Strickland v. Ward, 1 T. R. 631. And it is not competent for the plaintiff to show irregularity in the pro- ceedings, as that no summons issued. Goss v. Jackson, 3 Esj). 198, see 12 East, 74 {n). Excused in case of error in judgment.'] Where a magistrate act- ing within his jurisdiction does an act, which under the circum- <■ 5 Eng. Com. Law Reps. 137. ' 10 Id. 124. ^ 9 Id. 4^0. " 5 Id. 278. •2^.27. 61 482 Actions against Sheriffs. stances is not justifiable, still as he is bound to exercise a judgment on the Case, he is not liable for a mere error of judgment. Mills v. m Co/lett, Bivgh. 85." ^ Te7idcr of amends.] By 24 G. II. c. 44, s. 2, it shall and may- be lawful for such justice of the peace, at any time within one ca- lendar month after such notice, to tender amends to the party com- plaining, or his agent or attorney, and in case the same is not ac- cepted, to plead such tender in bar ; and if upon issue joined thereon, the jury shall find the amends so tendered to have been sufficient, then they shall give a verdict for the defendant ; and if upon issue so joined, the jury shall find that no amends were tendered, or that the same were not sufficient, and also against the defendant on other pleas, then they shall give a verdict for the plaintiff, and such da- mages as they shall think proper, &c. Where the defendant pleaded 40s. amends, and the tender was admitted by the replication, and the notice of action was for seiz- ing and carrying away goods to the value only of 40s., it was held that the plaintiff could claim no more than 40s., which being cover- ed by the tender, he was nonsuited. Stringex v. Martyr, 6 Esp. 134. ACTIONS AGAINST SHERIFFS. The evidence in actions against sheriffs will be considered under the following heads:— 1. For taking the plaintiff's goods in execu- tion. 2. For taking the goods of a tenant in execution without pay- ing the arrears of rent. 8. For not paying over money levied. 4. For nor arresting a debtor. 5. For an escape on mesne process. 6. For an escape in execution. 7. For taking insufficient pledges in replevin. 8. For a false return. 9. For extortion. For taking the plaintiff's Goods. In trespass or trover for taking the plaintiff's goods, the plaintiff under the general issue must prove the property of the goods and the taking by sheriff. Evidence of property.'] In general it will be sufficient for the " plaintiff to show that he was in possession of the goods at the time of the seizure, which will be prima facie evidence of property, a7ii€, p. 178. If, not having been in possession himself, he relies upon an assignment from a former owner, he must prove the pos- P 19 Eng. Com. Law Reps. 11. Actions against Sheriffs. 483 session of such former owner, and the assignment to himself in the regular manner. Evidence of the taking.] If the action be in trover, the plaintiff must prove an act amounting to a conversion, or must show a de- mand and refusal, ante, p. 404 ; if in trespass he must prove some injury to the goods, or an asportavit. The production of a bill of sale executed by the defendant, and reciting the issuing of a writ and the seizure of the goods, will be evidence of a taking in tres- pass. Woodward v. Larking, 3 Esp. 286. Evidence of the taking — connexion between the sheriff and the bailiff.'] In order to establish the connexion between the sheriff and his bailiflf^ and to affect the former with the acts of the latter, the warrant should be proved, though it is not the only medium by which the privity of the sheriff with the act of his bailiff may be established. Martin v. Bell, 1 Stark. 41 7.^ Proof of the warrant issued by the under sheriff, under the sheriff's seal of office, is suf- ' ficient without proof of the writ. Gibbins v. Phillipps, 1 B. and C. 535'' (n). If the warrant remains in the hands of the bailiff, as, if executed, it usually does, for his justification, a subpoena duces tecum should be served upon the bailiff If it has been returned to the sheriff's office, a notice to produce should be given, and se- condary evidence will then be admissible ; and where the warrant, after the levy, had been returned by the bailiff to the under-sheriff, the sheriff still being in office, it was held that a notice to produce, served upon the attorney of the sheriff, was sufficient. Taplin v. Atty, 3 Bingh. 165.^ It will not be sufficient, in order to establish the connexion between the sheriff and bailiff, to show that the lat- ter is the bound bailiff of the former, and to produce and prove a paper received from the bailiff, purporting to be a copy of the war- rant, Drake v. Sykes, 7 7.R.113; nor is it sufficient to produce an examined copy of the precept, with the bailiff's name indorsed on it, though the sheriff has returned cepi corpus. Martin v. Bell, 1 Stark. 413.1 So where an examined copy of the writ and return with the bailiff's name written on the margin was produced, Lord Ellenborough held it insufficient to connect the sheriff with his acts ; Jones V. Wood, 3 Camph. 228, Hill v. Sheriff of Middlesex, Holt, 217,* 7 Taunt. 8," S. C, Morgan v. Brydges, 2 Stark. 314 ^ but see Blatch V. Archer, Cou-p. 63, Macneil v. Perchard, 1 Esp. 263, Fermor v. Phillips, 5 Moore, 184,- {n), 3 B. and B. 27^ {n), Bowden v. Wait- ham, 5 Moore, 183,™- where it was held that the fact of the bailiff's name appearing upon the writ, without further proof, was evi- dence to go to the jury of the connexion between the sheriff and the bailiff If the writing of the bailiff's name on the writ be prev- ia Ener. Com. Law Reps. 449. •• 14 Id. 97. "Hid. ni. '3 Id. 79. "2 Id. 6. v3ld.3Gl. ^Mnid.392. » 7 Id. 335. 484 Actions against Sheriffs. ed to have been by the authority of the sheriff, it will be sufficient to establish the connexion between them. Thus where, in an ac-> tion for an escape, the writ produced bore two indorsements, and the witness who produced the writ said that he belonged to the sheriff's office, that the writ came to the sheriff's office from the plaintiff's agent, marked with the bailiff's name, and that he (the witness) again indorsed the bailiff's name on it, the court thought the sheriff's authority sufficiently proved. Francis v. JVeave, 3 B. and B. 26.^ So where the plaintiff offered in evidence the wrii, with the name of the bailiff indorsed upon it, and it was also proved that the writ had been sent to the under-sheriff's office, where the name of the bailiff had been indorsed upon it ; and it was proved to be the custom of the office to indorse upon the writ the name of the bailiti'who was to execute the process, Richards, C. B. was of opinion that this evidence was sufficient to connect the sheriff with the act of the bailiff Tealby v. Gascoigne, 2 Stai'k. 202.'' So where a paper was produced, on notice, from the sheriff's of- fice, containing an order to the bailiff to give the necessary instruc- tions for making a return to the writ in question, and his answer, Lord Ellenborough held, that it amounted to a clear recognition of the bailiff by the sheriff James v. Wood, 3 Campb. 229. So where the plaintiff proved that a bail bond, which had been executed and delivered to the bailiff, had been returned to the sheriff, who had made his return of cepi corpus, Lord Ellenborough held, that this was sufficient to prove the agency of the bai]iff Martin v. Bell, 1 Stark. 416.* Evidence of the taking — connexion betiveen the sheriff and the bailiff- — admissions by the bailiff.'] The under sheriff is the gene- ral deputy of the high-sheriff for all purposes, per Lord Kenyan, Drake v. Sykes, 7 7'. R. 116, and therefore his admissions are evi- dence against the sheriff, without previous proof of his authority in the particular instance. But as the bailiff is not the general offi- cer of the sheriff, it is necessary to show his agency in the particu- lar instance, before an admission by him can be made evidence against the sheriff, and it will then only be evidence in the same manner, and to the same extent, as an admission by any other agent. See ante, p. 29, Bowsher v. Calley, 1 Campb. 394 (n). Defence. In an action for taking the plaintiff's goods in execution, one of the most usual defences is, that the goods have been fraudulently assigned to the plaintiff, and that they are in fact the goods of the party against, whom the writ issued. This defence, either in 1 7 Eng. Coin. Law Reps. 2Zl. »3 Id. 313. ^ 2 Id. 449. Actions against Sheriffs. 485 trespass or trover, is open to the defendant under the general issue, for it shows that the goods ar^e not the goods of the plaintiff If the plaintiff has never been in possession of the goods, but claims them by an assignment, under which possession has never been given, it will, as it seems, be sufficient for the defendant to show that the assignment is fraudulent and void, and it will not be necessary for him in such case to go further and prove the judg- ment and writ under which the goods were taken ; hut see Martin V. Podger, 5 Bzut. 2633 ; but if the plaintiff was in possession of the goods at the time of the taking, the defendant must prove the writ and judgment, for otherwise he would appear to be a mere wrong-doer, and the plaintiff being in possession, would have a suf- ficient title as against him. Lake v. Billers, 1 Ld. Raym. 733, see Martin v. Podger, 5 Burr. 2631. If the goods were in fact the goods of the plaintiff, but the defendant justifies the taking of them under a fi. fa. against him, such defence cannot be given in evidence under the general issue in trespass, but must be pleaded specially. Evidence of fraudulent assignment.'] In general the continuing possession of the vendor or assignor is evidence of fraud. Twyne's case, 5 Rep. 80 {b). Where a debtor executed a bill of sale of his goods to his creditor on the 27th March, and possession was given by- the delivery of a corkscrew, but all the effects continued in the possession of the debtor till the 7th April, when he died, it was held that the bill of sale was fraudulent. Edwards v. Harben, 2 T. R. 587, see 1 B. and B. 512," 1 Taunt. 382. So where an assignment to a creditor was made, and a servant of the assignee was imme- diately put into the house, but the assignor continued to carry on the business, as usual, for several weeks after, Lord Ellenborough held that a concurrent possession with the assignor was colourable, and that there must be an exclusive possession under the assign- ment, or it is fi-audulent and void as against creditors Wordall v. Smith, 1 Campb. 322, but see Benton v. Thornhill, 7 Taunt. 149,'= Latimer v. Batson, 4 B. and C. 653,'' Easticood v. Brawn, R. and M. 313, post. The want of transfer of possession, is not in all cases a mark of fraud, as where A. lends B. money to buy goods, and at the same time takes a bill of sale of them for securing the money. B. JV. P. 258, 2 B. and P. 60, Steel v. Brown, 1 Taunt. 381. So where the goods of A. being taken in execution, and put up to sale, B. became the purchaser, and took a bill of sale of the sheriff, but permitted A. to continue in possession, it was held that this transaction was valid. Kidd v. RawUnson, 2 B. and P. 59. So where the husband of the plaintiff's mother absconded, and his effects were publicly b 5 Eng. Com. Law Reps. 169. <= 2 Id. .52. ^ lo Id. 432. 486 Actions against Sheriffs. sold by auction, and the plaintifT purchased them in order to ac- commodate his mother, and removed some, but left the greater part in her possession, it was held that there was a bona fide change of property, Leonard v. Baher, 1 J\L. and S. 251, and see Jezeph V. Ingram, 1 B. Moore, 189.^ So where a creditor, having taken the goods of his debtor in execution, afterwards bought them at a public auction by the sheriff, and paid for them, and took a bill of sale, and let them to the former owner at a rent, which was actu- ally paid, the sale was held to be valid. Watkins v .Birch, 4 Taunt. 823. And when goods were seized and sold by. the landlord, under a distress for rent, and purchased by a trustee of the tenant's es- tate, for the benefit of the creditors, and were permitted by the trustee to remain in the possession of the tenant, it was held that they were not liable to be taken in execution by a creditor of the tenant. Guthrie v. Wood, 1 Stark. 367.'' So where the goods of A. were seized under afi. fa., and the judgment creditor took a bill of sale from the sheriff, and afterwards sold the goods to B. who put a man into possession, but the goods remained in A.'s house and were used by him as before the execution, it was held (the circumstan- ces of the execution being notorious in the neighbourhood) that the sale was good. Lati?ner v. Batson, 4 B. and C. 652.^ Again, where a debtor, previous to an execution, sold, for the full value, the whole of his lease, furniture, and household effects, to a creditor, and out of the purchase money paid several of the other creditors, but continued in the occupation of the house and furniture after the assignment, the sale was held to be valid ; and per Abbott, C. J. the circumstance of an assignor, who is under pecuniary embar- rassments, remaining in possession of the property assigned, is al- ways suspicious ; but if it does not appear from other facts of the case that this takes place under a fraudulent arrangement between the parties, for the purpose of delaying creditors, 1 am of opinion that it is not of itself a conclusive badge of fraud. Eastwood v. Brown, R. and M.312. The not taking possession is in some mea- sure indicative of fraud, but is not conclusive ; to make it absolute- ly void there must be something that shows the deed fraudulent in the concoction of it. Per Ld. Ellenborough, Hoffman v. Pitt, 5 Esp. 25. So where a farmer gave a bill of sale of all his stock to secure a debt, and the agent of the creditor took possession, and resided on the farm while he converted the stock, but the debtor continued also to reside on the farm, and exercised acts of ownership, and appeared as master, the agent of the creditor giving orders in his name, the jury having found the transaction good, the court refu- sed to disturb the verdict. Benton v. TJwrnhill, 7 Taunt. 149." An assignment of a part of a debtor's effects, for the benefit of certain creditors, not made with the intention of fraudulently de- laying his other creditors, is good. Estioick v. Caillaud, 5 T. R. 420. ' 4 Eng. Com. Law Rep?, 303. f 2 Id. 430. nO Id. 432. h 2 Id. 52. Actions against Sheriffs. 487 So where A. was indebted to B., and also to C, and being sued to execution by B., voluntarily gave a warrant of attorney to C, on which judgment was entered, and execution levied, on the day on which B. would have been entitled to execution, it was held that this preference was legal. Holbird v. Anderson, 5 T. R. 235, Meux V. Howell, 4 East, 1. So also where a debtor, being sued, and insolvent, pending the suit, and before execution, assigned all his etifects to trustees for the benefit of all his creditors, under which assignment possession was immediately taken, it was held tbat this assignment was not fraudulent, though made with intent to delay the plaintiff of his execution. Pickstock v. Lyster, 3 M. and S. 371. See the observations of Richards, B. 3 Price, 16. In order to prove the fraud, declarations made by the assignor, at the time of executing the bill of sale, are admissible, as part of the res gestce, but not if made at another time. Phillips v. Earner, 2 Esp. 357, Penn v. Scholeij, 5 Esp. 243. Where A. sued out a writ o( fi.fa. against the goods of B., and the sheriff executed a bill of "sale of certain goods to A. after which, B. remaining in possession of the goods, the sheriff again took them under another execution against B., in an action of trover by A. against the sheriff for taking these goods, it was held that the declarations of B. at the time of the second execution were evidence for the defendant, to show that A.'s execution was colour- able. Willies V. Farley, 3 C. and P. 395.' Competency of Witness. In trespass for taking the plaintiff's goods, where the question was, whether the goods had been assigned to the plaintifi" by A., against whom the execution issued, it was held that A. was not a competent witness for the defendant to disprove the assignment, for the object of caUing A. being to prove that the execution which had been levied upon the goods to satisfy a debt owing by him, was valid, he was called to give evidence, the effect of which would be to pay his own debt with the plaintiff's goods. Blaiul v. Ansley, 2 JV. R. 331. For taking the Goods of a Tenant in execution without paying the yearns rent. The plaintiff in this action must prove : 1, the demise and the rent arrear ; 2, the levy and removal of the goods ; 3, notice to the sheriff; 4, the value of the goods seized. By 8 Anne, c. 14, s. 1, no goods or chattels lying or being in or upon any messuage, lands, or tenements, leased for life or lives, term of years, at will, or otherwise shall be liable to be taken by virtue of any execution, on any pretence whatsoever, ' 14 Eng. Com. Law Reps. 366. 488 jictions against Sheriff's. unless the party, at whose suit the said execution is sued out, shall before the removal of such goods from off the said premises, by virtue of such execution or extent, pay to the landlord of the pre- mises, or his bailiff, all such sum or sums of money as are due for rent for the said premises, at the time of the taking of such goods and chattels, by virtue of such execution, provided the arrears of rent do not amount to more than one year's rent. By 11 Geo. IV. cap. 11, the provisions of the statute of Anne are extended to a seizure and sale of goods under the Bishop's ex- tract, upon a pone per Vculioz, issuing out of the Court of Pleas at Durham. See Brand/irig v. Barrington, 6 B. and C. 467." A commission of bankrupt is not an execution within the mean- ing of this statute. Ex parte Devisne, Co. B. L. 190. Eden 304, 15 East, 230. Where the sheriff seizes, after an act of bankruptcy committed by the tenant, he cannot retain a year's rent for the landlord against the assignees, Lee v. Lopes, 15 East, 230 ; but in an action against the sheriff, who has levied under an execu- tion after an act of bankruptcy committed, it is no defence that the tenant has become bankrupt, and that the sheriff is liable to the assignees. Duck v. Braddyl, M'CI. 217. The trustee of an outstanding satisfied term, in trust to attend the inheritance, is a la7idlord within the statute. Colyer v. Speer, 2 B. and B. 67.» So the action may be brought by an executor or administrator. Palgrave v. Windham, 1 Sir. 212. On a sale of premises it was stipulated that from the time of the vendee taking possession until the completion of the purchase, he should pay to the vendor at the rate of 100/. per annum ; held that this was rent, and that the sheriff was bound to pay the amount thereof under the statute of Anne. Saunders v. Musgrave, 6 B. and C. 524." The plaintiff can only recover the rent due at the time of the taking the goods, and not that which accrues after the taking and during the continuance of the sheriff in possession. Hoskins v. Knight, 1 M. and S. 245. Evidence of the demise.'] The declaration need not state the particulars of the demise ; but if stated they must be proved as laid. Bristow v. Wright, Dougl 640. In order to prove the rent in arrear, it will be sufficient to show the occupation by the tenant, and the amount of the rent, and it is not necessary to call the ten- ant, in order to prove the state of accounts between the landlord and himself. Harrison v. Barry, 7 Price, 690. Evidence of the levy.'] The plaintiff may prove the execution by production of the writ and warrant, which will connect the bailiff and sheriff, see ante, p. 483, and by proof of the levy having k 13 Eng. Com, Law Reps. 238. i 6 Id. 21. » 13 Id. 243. jictions against Sheriff's. 489 been made. It will be sufficient for the plaintiff to prove, that some of the goods have been removed. Colyer v. Spear, 2 B. and B. 67." Evidence of notice.'] In order to render the sheriff liable as a wrong doer, by (he removal of the goods, it must be proved, that he had notice of the landlord's claim. See Arniit v. Garnett, 3 B. and A. 441 ;° Smith v. Russell, 3 Taunt. 400. No specific notice is required by the statute, and if a knowledge of the landlord's claim can be by any means brought home to the defendant, before he has parted with the money raised by the levy, he will be liable. Thiis if it appears, that the sale has been conducted with great secrecy and dispatch, it is for the jury to say, whether the sheriff knew of the fact, that the rent was in arrcar, though no notice of it had been given to him before the sale. Andrews v. Dixon, 3 B. and A. 645.^ Defence. If the agent of the landlord take from the sheriff's officer an un- dertaking to pay the year's rent, and consent to the goods being sold, the landlord cannot afterwards maintain an action on the sta- tute, though the rent be not paid pursuant to the undertaking, and though the undertaking be void by the statute of frauds. Rotherey V. Wood, 3 Campb. 24. For not paying over Money levied. In an action for money had and received against a sheriff for not paying over to the plaintiff money levied under an execution in an action at the suit of the plaintiff, the latter must prove the writ of execution, and levy under it. The writ of execution must be produced ; or if it has been re- turned and filed, an examined copy of it must be given in evidence, or if it be in the hands of the sheriff, a notice to produce must be served, and secondary evidence may then be given. See post, p. 491. Though it seems to be doubtful whether this action can be main- tained before the return of the writ, see dictum per Parke, J. Mor- land V. Pellatt, 8 B. and C. 727." The plaintiff must connect the sheriff with the bailiff by proving the warrant, or giving evidence of some act of recognition. See ante, p. 483. -If the defendant has returned the writ, and that he has levied the sum, an examined copy of the writ and return will be sufficient. Dale v. Birch, 3 Campb. 347. It is not sufficient to prove the faking and selling of the goods by a person reputed to be an officer of the sheriff, with- out proof of the writ of execution or warrant. Wilson v. Xorman, 1 Esp. 154. The defendant may deduct his poundage. Longdill V. Jones, 1 Stark. 346."^ » 6 Eng. Com. Law Repe. 21. "5 Id, 340. r5 Id. 410. -) 13 Id. 332. ' 2 Id. 420. 62 490 Odious against Sheriff's. For not arresting a Debtor. In an action aejainst a sheriff for not arresting a debtor when he had an opportunity, the plaintiff must prove : 1, the debt due from the debtor to himself; 2, the issuing of the process and dehvery to the defendant ; and 3, that the defendant had notice, so that he might have arrested the debtor. Evidence of debt.'] Whatever evidence would be sufficient to charge the debtor in an action brought against him by the plain- tiff, will be sufficient, as against the sheriff in this action. Sloman V. Heme, 2 Esp. 695, Gibbon v. Coggon, 2 Campb. 188, and see post, Actions for Escape. Evidence of issuing of process.] In order to prove the process issued, the plaintiff should produce the writ ; or if returned, should give in evidence an examined copy of the writ and return. If it be in the possession of the defendant, a notice to produce should be served. To prove that the writ remains in the possession of the de- fendant, after the return, search should be made at the Treasury, and upon its appearing not to have been returned, it will be pre- sumed, on proof of delivery to the under-sheriff, that it remains in the defendant's possession, ante, p. 7. Evidence of notice.] If a person against whom the sheriff has a writ does not abscond, but continues in the daily exercise of his usual occupation, appears publicly as usual, and is visible to every per- son that comes to him on business, and the bailiff neglects to arrest him, and returns non est inventus, it is a false return. Beclifard v. Montague, 2 Esp. 475. It is not, however, sufficient merely to prove, that the debtor was within the defendant's bailiwick ; the plaintiff must go further, and prove notice to' the under-sheriff in the coun- try, or to the bailiff to whom the warrant was directed; a notice to the town agent of the under-sheriff is not sufficient. Gibbon v, Coggon, 2 Campb. 181). A bound-baiHff is not a competent witness for the defendant to prove that he endeavoured to make the arrest. Powell v. How, 2 Ld. Raym. 1411. . It is no defence that the debtor was arrested the day after the return of the writ. Barker v. Green, 2 Bingh. 317." For Escape on Mesne Process. In an action against the sheriff for an escape on mesne process, the plaintiff must prove, 1, the debt due from the party arrested ; 2, the issuing and delivery of the process to the defendant ; 3, the nrrest ; and 4, the escape. »9 Eng. Com. Law Reps. 419. Jldions against Sheriff's. 491 Evidence of the debt due from the party arrested."] The plaintiff must prove a debt due to him from the party arrested, Alexander V. Macauley, 4 T. R. 611, at the time of the arrest. White v. Jones^ 5 Esp. 160. If the declaration state, that the party was indebted to the plaintiif/ar goods sold and delivered, it must be so proved, Parker v. Fenn, 2 Esp. 477 (n) ; but the exact sum mentioned in the declaration need not be proved. B. JV. P. 66. The debt is proved by the same evidence which would have been requisite to estabhsh it, in action against the debtor himself, and therefore an admission of the debt by the debtor at any time before the escape is good evidence against the sheriff Williams v. Bridges, 2 Stark. 42, Rogers v. Jones,^ 7 B. and C. 89.° Evidence of the issuing and delivery of the process to the defend- ant.'] The issuing of the process, and the delivery of it to the un- der-sheriff, must be proved. If the process has been returned, an examined copy of the writ and return will be evidence of these facts. B. J\'. P. 66. If not returned, after proof of a notice to produce, and that search has been made at the treasury, secondary evidence will be admitted. Where it was averred that the debtor was arrested " under a writ indorsed for bail by virtue of an affida- vit now on record," it was he*ld necessary to prove the affidavit. Webb V. Heme, 1 B. and P. 382. But where the declaration sta- ted that the writ was marked for bail " by virtue of an affidavit of the cause of action of the plaintiff in that behalf, before then made, and duly filed of record in this court, according to the form of the statute, &c." without stating by whom the affidavit was made, it was held that the averment was sufficiently proved by an office copy of the affidavit. Casburn v. Reid, 2 B. Moore, 60.^ A vari- ance between the process stated and that proved will be fatal ; but where it was alleged that the prisoner was arrested on mesne pro- cess, and brought before a judge at chambers by virtue of a writ of habeas corpus, and was by him thereupon committed to the custody of the marshal, " as by the record thereof now remaining in the court of King's Bench appears, &c." it was held, that such allega- tion was either impertinent and surplusage, since, properly speak- ing, such documents are not records, or considering them as quasi of record, the allegation was sufficiently proved by the production of them from the office of the clerk of the papers. Wigley v. Jones, 5 East, 440, and see Bevan v. Jones, 4 B. and C. 403,^ Bromfield v. Jones, 4 B. and C. 380,^ ante, p. 49. Evidence of the arrest.] The facts sufficient to constitute an ar- rest have already been noticed, ante, p. 376 ; arid see post, 492. Where the plaintiff gave in evidence the sheriff's return of cepi corpus to the writ, and proved that the defendant in the former «;3 Eng. Com. Law Reps. 235. " 14 Id. 19. ' 4 Id. 45. «' 10 Id. 369. * 10 Id. 362. 492 „^ctions Ci^ainsl Shenjfs. action d\d not put iu bail ubovo, and was not in the shenfl''s custLxly at the return of the writ. Lord Kllenborough held, that the arrest and escape were suthciently proved by the sheritF's re- turn, and the non-appearance of the party, according to the ex- igency of the writ. Fuirlie v. Birch, S Campb. 31)7. "Where thy writ has not been returned, evidence must be given to connect the bciUitland the sheritK ^te ante. p. 4S3, Evidence o/thc escape.'] That the debtor was seen abroad afiei- the return of the writ, and that bail has not been put in, will be ev- idence of an escape, vide^ supra. An admission of the escape by the under-sheritf. is evidence against the sheritl", ante, p. 4S4. The party escaping may be called to prove a voluntary escape, B. A'. P. 67, tor though the whole debt may be recovered against the sherit!', yet in an action against the original debtor for the debt, he can neither plead in bar nor give in evidence in reduction of damages, the iudg- mcnt obtained in the action against the sherlti. FtT .ibbott, C. J., Hunter v. King, 4 B. and .i. eiO.> Defence. It is a good defence, under the general issue, that the defendant, though he has taken no bail-bond, has put in bail before the expi- ration of the rule to brin? in the bodv. Pai'iente v. Plumtree, 2 B. and P. 35. For Escape iJi Execution. In an action against the shei'itl', tor sutlering a prisoner in execu- tion to escape, the plaintiti' must prove: 1, the judgment; 2, the issuing, and delivery to the defendant, of the writ of ca. sa. ; 3, the arrest : and 4. the escape. The mode of proving the judgment, ante, p. 54, and the issuing and delivery of the writ, ante, p, 49 L, has already been mentioned. Evidence of arre$i.'\ The otRcer must be the authoriti/ to ar- rest, but need not be the hand that arrests; nor in the presence of the pei"son arrested; nor actually in sight; nor is anv exact dis- tance prescribed. It would be a dillerent case, if he be upon some other errand, or stay at home and send a third person to make the arrest. Per Ld. Mansfield, Blatch v. Archer. Cou-p. 65. In that case, the son of the officer said, at the time of the arrest, that he had his authority in his pocket, the officer himself being at the distance of thirty rods, and not in sight, and it was held a good arrest ; and ste supra. If A. be in custody at the suit of B., and a writ be de- y 6 Enj. Com. Law Reps. 403. .^ctiffos afrairuil Sfi^riffs. 493 fivered to the feheriff' at tlie suit of D. the delivery of the writ i« an arre^jt in law, and if A. escape, D. may bring debt against the fche- riff for an escapf;. /;. .%* A 60. It must appear that the prisoner was in the custody of the efe- ftindanl ; and, therefore, where he was taken in execution by a former sheriOT, the amh^fiaK^nt of the prisoner from him to the de- fendant by indenture ought to be proved, Daddion v. Sey/ruyixr, 1 M.andM. JM, unlcAs the defendant has become sheriff on the death of his predecessor ; in which case he is bound, at his peril, to take notice of all the executions which are against any persons whom he finds in the gaols. iVestki/ss cfue, 3 ^e/>. 72, /y, i^. -\'. P. 0%. Evidence of the esco.pe.'^ Wherever the prisoner in execution i« in a different custody from that which Is likely to enforce pay- ment of the debt, it is an escape. Per Budler, J., BercUm c. SuWm., 1 B. and P. 27, Thus if a sheriff's officer having taken a prisoner in execution, permit him to go in company with one of his foUower* to his own house, for th^purpose of settling his affairs, it is an es- cape. 7/yz 2 Id. 449. Actions aorainsi Hundrcdors. 499 o riotously and tumultuously assembled, should be amended, and con- solidated into one act ; and with that view the said statutes are, by an act of the present session of parliament, repealed, from and after the last day of June in the present year, except as to offences and other matters committed or done before or upon that day : be it therefore enacted by the king's most excellent majesty, by and with the advice and consent of the lord's spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that this act shall commence on the first day of July in the present year. " II. And be it enacted, that if any church or chapel, or any chapel for the religious worship of persons dissenting from the uni- ted church of England and Ireland, duly registered or recorded, or any house, stable, coach-house, outhouse, warehouse, ojjice, shop, mill, malthouse, hop-oast, ham, or granary, or any building orjirection used in carrying on any trade or manufacture, or branch thereof, or any machinery, tchether fixed or moveable, prepared for or em- ployed in any manufacture, or in any branch thereof, or any steam engine or other engine,for sinking, draining, or working any mine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, loaggon-ivay, or trunk for conveying minerals from any mine, shall be feloniously demolished, pulled doion, or destroyed, ivholly or in any part, by any persons riotously and tumultuously assembled together, in every such case the inhab- itants of the hundred, wapentake, ward, orother district in the nature of a hundred, by whatever name it shall be denominated, in which any of the said offences shall be committed, shall be liable to yield full compensation to the person or persons damnified by the offence, not only for the damage so done to any of the subjects herein-be- fore enumerated, but also for any damage which may at the same time be done by any such offenders to any fixture, furniture, or goods whatever, in any such church, chapel, house, or other of the buildings or erections aforesaid. " III. Provided always, and be it enacted, that no action or sum- mary proceeding, as hereinafter mentioned, shall be maintable by virtue of this act, for the damage caused by any of the said offences, unless the person or persons damnified, or such of them as shall have knowledge of the circumstances of the offence, or the servant or servants who had the care of the property damaged, shall within seven days after the commission of the olFence, go before some justice of the peace residing near and having jurisdiction over the place where the offence shall have been committed, and shall state upon oath before such justice the names of the olfenders, if known, and shall submit to the examination of such justice touching the circumstances of the offence, and become bound by recognizance before him to prosecute the offenders when apprehended ; provided 500 jJclions airainsl Hundredors. n also, that no person shall be enabled to bring any such action, un- less he sliall commence the same within three calendar months af- ter the commission of the olfence. " IV. And be it ei^acted, that no process for appearance in any action to be brought by virtue of this act against any hundred or other like district, shall be served on any inhabitant thereof, except on the high constable, or some one of the two constables (if there be more than one), who shall, within seven days after such service, give notice thereof to two justices of the peace of the county, riding, or division in which such hundred or district shall be situate, residing in or acting for the hundred or district; and such high constable is hereby empowered to cause to be entered an appearance in the said action, and also to defend the same, on behalf of the inhabit- ants of the hundred or district, as he shall be advised ; or, instead of defending the same, it shall be lawful for him, with the consent and approbation of such justices, to suffer judgment to go by de- fault ; and the person upon whom, as high constable, the process in the action shall be served, shall, notwithstanding the expiration of his office, continue to act for all the purposes of this act, until the termination of all proceedings in and consequent upon such action ; but if such person shall die before such termination, the succeeding high constable shall act in his stead. " V. And be it enacted, that in an action to be brought by vir- tue of this act against the inhabitants of any hundred or other like district, or against the inhabitants of any county of a city or town, or of any such liberty, franchise, city, town, or place, as is herein- after mentioned, no inhabitant thereof shall, by reason of any in- terest arising from such inhabitancy, be exempted or precluded from giving evidence either for the plaintiff or for the defendants. * * # _ * * " VIII. And whereas it is expedient to provide a summary mode of proceeding where the damage is of small amount ; be it there- fore enacted that it shall not be lawful for any person to commence any action against the inhabitants of any hundred or other like district, where the damage alleged to have been sustained by rea- son of any of the offences in this act mentioned shall not exceed the sum of thirty pounds. ***** " X. And be it enacted, that if any high constable shall refuse or neglect to exhibit or give such notice as is required in any of the cases aforesaid, it shall be lawful for the party damnified to sue him for the amount of the damage sustained, such amount to be recovered by an action on the case, together with full costs of «uit. "XL And be it enacted, that every action or summary claim. Jictions against Hundrcdors. 501 to recover compensation for the damage caused to any church or chapel by any of the offences in this act mentioned, shall be brought in the name of the rector, vicar, or curate of such church or cha- pel, or in case there be no rector, vicar, or curate, then in the names of the church or chapelvvardens, if there be any such ; and if not, in the name or names of any one or more of the persons in whom the property of such chapel may be vested ; and the amount recovered in any such case shall be applied in the rebuilding or re- pairing such church or chapel ; and where any of the offences in this act mentioned shall be committed on any property belonging to a body corporate, such body may recover compensation against the hundred or other like district, in the same manner, and subject to the same conditions, as any person damnified is by this act ena- bled to do; provided always, that the several conditions which are hereitibefore required to be performed by or on behalf of any per- son damnified, may, in the case of a body corporate, be performed by any officer of such body on behalf thereof. " XII. And whereas the ofTences for which compensation is granted by virtue of this act may be committed in counties of cities and towns, or in such liberties, franchises, cities, towns, and places, as either do not contribute at all to the payment of any county rate, or contribute thereto, but not as being part of any hun- dred or other like district ; and it is expedient to provide for all such cases; be it therefore enacted, that where any of the offences in this act mentioned shall be committed in a county of a city or town, or in any such liberty, franchise, city, town, or place, the inhabi- tants thereof shall be liable to yield compensation in the same man- ner, and under the same conditions and restrictions in all respects, as the inhabitants of the hundred; and every thing in this act in any way relating to a hundred, or to the inhabitants thereof, shall equally apply to every county of a city or town, and to every such liberty, franchise, city, town, and place, and to the inhabitants thereof; and where the justices of the peace of the court, riding, or division, are excluded from holding jurisdiction in any such li- berty, franchise, city, town, or place, in every such case all the powers, authorities, and duties by this act given to or imposed on such justices, shall be exercised and performed by the justices of the peace of the liberty, franchise, city, town, or place in which the offence shall be committed; and where the offence shall be com- mitted in a county of a city or town, all the like powers, authori- ties, and duties shall be exercised and performed by the justices of the peace of such county of a city or tovi^n ; and in every action to be brought or summary claim to be preferred under this act against the inhabitants of a county of a city or town, or of any such liberty, franchise, city, town, or place, the process for appearance 502 Actions against Hundredors, in the action, and the notice required in the case of the claim, shall be served upon some one peace ofliccr of such county, liberty, franchise, city, town, or place ; and all matters which by this act the high constable of a hundred is authorized or required to do in cither of such cases, shall be done by the peace officer so served, w'ho shall have the same powers, rights, and remedies, as such high constable has by virtue of this act, and^shall be subject to the same liabilities; and shall, notwithstanding the expiration of his oflice, continue to act for all the purposes of this act until the termination of all proceedings in and consequent upon such action or claim ; but if he shall die before such termination, his successor shall act in his stead." From the above extract it will appear, that the remedy given by the statute of Winton against the hundred, in the case of robbery, and by the Black act in the case of certain malicious injuries to property, unaccompanied by riot, is abolished. On the issue Not guilty, the plaintiff must be prepared to prove 1, his interest in the property injured ; 2, the ofTence ; 3, that it was committed within the hundred, &c. ; 4, the examination of himself or servant, agreeably to the statute ; 5, the recognizance to prosecute ; 6, the amount of damage ; 7, the commencement of the action within three calendar months. The cases cited hereafter are all decisions on the old statutes, and are only inserted where they seem applicable to the recent act. Interest of the 'plaintiff.'] The bare trustee of a satisfied term is entitled to sue for damages. Pritchet v. Waldron, 5 T. R. 14. — (Riot act.) Parties jointly interested in the property may join in the action. Wintcrstohe Hundred's case, Dy. 370, a. — (Stat. Win- ton.) Where the property injured consists of a church or chapel, or belongs to a corporation, the 11th section of the act points out the parties who are to sue. A reversioner may sue for the damage sustained by him. Pellewv. Inhah.of Wonford, 9 B. and C. 134;" though the hundred may thereby be subjected to several actions. S. C. 142.— (Black act.) The offence.] By 7 and 8 Geo. IV. c. 30, s. 8, it is enacted that '* if any persons riotously and tumultuously assembled together to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to pull down, demo- lish, or destroy any church or chapel, or any chapel for the religious worship of persons dissenting from the united church of England and Ireland, duly registered or recorded ; or any house, sta- » 17 Eng. Com. Law Rej)s. 34!J. Actions against Hundredors. 503 ble, coach-house, out-house, warehouse, office, shop, mill, malt- house, hop-oast, barn, or granary, or any building or erection used in carrying on any trade or manufacture, or any branch thereof; or any machinery, whether fixed or moveable, prepared for or em- ployed in any manufacture, or any branch thereof; or any steam- engine, or other engine for sinking, draining, or working any mine ; or any staith, building, or erection used in conducting the business of any mine ; or any bridge, waggon-way, or trunk for conveying minerals from any mine ; every such otfender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon." As this section corresponds almost verbally with the section of 7 and 8 Geo. 4, c. 31, which gives the action against the hundred, it is presumed that, in order to entitle the party to that remedy, the offence must be a felony within the above clause. See Reid v. Clarke, 7 T. R. 496.— (Riot act.) The 38th section of 57 Geo. III. c. 19, which extended the remedy to all cases of injury to build- ings by rioters, is repealed by 7 and 8 Geo. IV. c. 27 ; so that where the injury is partial it will be matter of inquiry (as former- ly under the riot act) whether the acts of the rioters constitute a " beginning to demolish" within the above clause. The following cases were decided on the riot act. • Where a riotous mob broke the windows, sashes, and shutters of a house, in order to compel the occupier to illuminate, this was held not within the act. Reid v. Clarke, supra. It is a question for the jury, whether the rioters intended to stop short of demoli- tion, or to proceed to further acts to effect their purpose. Burrows V. fViight, 1 East, 615. During the riots respecting the corn bill, the mob attacked the plaintiff's house, and proceeded to break his windows, shutters, fanlight over his door, &c., vi'hen the military appeared and dispersed them : held sufficient evidence of a begin- ning to demolish. Sampson v. Chambers, 4 Campb. 221. On the same occasion, where the mob voluntarily retired after doing simi- lar mischief to the plainliff's house, the jury, under the direction of Lord EUenborough, found for the defendants. Lord King v. Chambers, ib. 377. A mob attacked the plaintiff's house, with intent to liberate a comrade in custody there, and did many acts of violence to the property : per Lord Ellenborongh — " The ques- tion is, what was the purpose of the mob, and whether, if ihey could not have rescued their leader, they would not have proceed- ed to demolish the house, as they threatened, unless his escape had intervened. It is a principle of law, that a person intends to do that which is the natural effect of what he docs. If, there- fore, the puUing down the house was intended as a means of getting at him, they intended to demolish the house." Bechwith V. Wood, 2 Stark. 263.-' See also HoWs JV. P. C. 203. » 3 Eng. Com. Law Reps. 542. 504 JIdions ao-ainsi Hundredors. o On tlic 57 Geo. III. c. 19, where the words are " house, shop, or other building whatever," the court of King's Bench held that hustings, erected to take the poll at elections, were not within the description. AUe7i v. Jlyre, 3 I), and R. 96.'" Committed within the hundred, i^c.] The offence must be proved to have been committed within the hundred, or other dis- trict or place named in the declaration, and which must be one of the ditlerent classes of places enumerated in the 2d or 12th sec- tions. Where a distinct hundred is called the " half hundred" or " upper hundred" of A., and the action is brought against the " hundred of A.," the plaintiff must be non-suited. 2 Saund. {Wil- liams's,) 375, h. n. (3), citing Constable's case. Hob. 246. — (Stat. Winton.) But if the half hundred of A. be in fact only part of hundred A., the defendant must plead in abatement. Ibid. Examination of party, <5'C.] See s. 3, of stat., supra. The seven days ought, it seems, to be reckoned exclusively of the day on which the offence was committed. Pellew v. Inh. Wonford, 9 B. and C. 134." (Black act). The words of the black act, 9 Geo. I. c. 22, differ slightly from those of the above statute, and are as fol- low: — "No person or persons shall be enabled to recover, &-c. unless he or they shall within four days, &c. give in his, her, or their examination upon oath, or the examination upon oath of his, her, or their servant or servants that had the care of his or their houses, &,c." On this clause it has been decided, that where the premises injured are under the care of several servants, they should all be examined. Duke of Somerset v. Hundred Mere, 4 B. and C. Ifi7.'' Where a tenant quitted the premises during the hay harvest, and the steward of lessor, living at a distance, direct- ed certain persons to get in the hay, who took possession of the farm for this purpose, and carried on their work under the super- intendance of an under-steward, held that these latter, and not the steward, were the persons to be examined. S. C. ibid. Where the reversioner sued, his own oath was held sufficient, without ex- amining the tenant or his servants. Pellew v. Hundred Wonford, supra. It is unnecessary to examine both servants and owner ; if the latter is in residence, or is only casually absent for a short time, his oath is enough ; but where he has no superintendance, and has left the house in the charge of servants, the latter are the proper persons to be examined. Rolfe v. Hund. Elthorne, 1 M. and M. 185, On the similar clause of 52 Geo. III. c. 130, s. 4, it was ruled that, whei-e the premises demolished belonged to several partners, all, who were present at the transaction, ought to have been examined ; or the affidavit of the one examined should at least negative that the rest had any knowledge of the offenders. I' 16 Ea-^. Com. Law Rcpb. 140. q 17 Id. 343. ' 10 Id. 303. Actions against Hundredors. 505 JVesham v. Armstrong, 1 B. and A. 146. It may be inferred from this case, and from the dictum of Holyrod J,, in Duke of Somerset V. Hund. Mere, that the examination of all the owners, or all the servants, was not necessary under the former statutes, where the persons omitted were shown to be ignorant of the subject matter of inquiry. If so, the introduction of the words in the recent statute, viz. — " or such of them as shall have knowledge of the circum- stances of the offence," makes no material difference in its construc- tion. In the stat. 27 Eliz. c. 13, (Hue and Cry,) the examination is to be before a "justice of the peace of the county inhabiting within the hundred, or near unto the same." Under this, it has been de- cided, that though the examining justice lived several miles off, and there were many others living nearer, it was sufficient ; the act being only directory in that respect. Lake v. Hund. Croydon, B. JV. P. 186. It was also held no objection that the examination took place out of the jurisdiction by a justice, who was usually commo- rant with his family within the jurisdiction. Helier v. Hundred Benhurst, Cro. Car. 211. It must be observed, however, that the words of the recent act are not exactly similar to those of stat. Eliz. Under the Black Act it was held that the plaintiff was not bound in his examination to state his suspicion respecting the ofTender. Pellew V. Hundred Wonford, supra. It is unnecessary for the jus- tices of the peace to take the examination in writing; it is suffici- ent for him to appear at the trial, and depose the substance of the affidavit, Graham v. Hundred Becontree, B. JV. P. 186, (stat. 27 Eliz.) But if the affidavit be in writing, no other evidence of the examination shall be admitted. Ihid. Proof that the person who took the examination was acting as a justice of the peace, is suffi- cient, and the affidavit may be read on proof that it was delivered to the person producing it by the justice's clerk without proving his hand-writing. Per Parker C. J., ibid. Amount of damage?^ The statute entitles the plaintiff to recover compensation for damage done at the same time by the rioters to any fixture, furniture, or goods whatever, in the buildings or erections therein named, s. 3. Neither the Riot nor the Black Act contained any express provision of this kind. Yet where the injur)' done to- personal property was the immediate effect of the act of demolition, or if the destruction of furniture, &c. and the demolition of the building were part of the same riotous transaction, and done at the same time, the plaintiff was allowed to include the whole in his da- mages. Hyde v. Cogan, Doitgl. 699. (Riot Act). So where in pul- ling down a house damage was done to the garden appurtenant, Wilmot V. Horton, ibid. 701 (n). So where the rioters broke into a flour seller's house and damaged the flour in the course of demo- 64 506 jSclions against Hundredors. lishing the house. Greasley v. Higginbottom, 1 East, 636. But where a distinct and substantive otlence was committed by some of the mob, as where the Hour (in the last case) was stolen, or com- pulsorily parted with by the dealer at an under price ; or where money, plate, &.c. were missing after the riot, Smith v. Bolton, Holt, J\\ P. iJOl ; or where the mob broke into a gunmaker's, and carried away the arms for their own use, Bechwith v. Wood, 1 B. and A. 487; in these cases the hundred was held not liable. And such, it is apprehended, still continues \o be the law, notwithstand- ing the words of additional liability inserted in the present act. Where the damage, alleged to have been sustained, does not ex- ceed 30/. no action lies, see s. 8. Commencement of Ike action.'] Where the commencement of the action does not appear by the record to have been within three ca- lendar months, the plaintiff must produce a copy of the original, 2 Saund. 375, a. n. (3). In Ahrris v. Hundred Gawtry, Hob. 139 (stat. Winton), the day of committing the offence vvas included in the computation. But this seems at variance with the later case of Pellew v. Wonford, 9 B. and C. 1 34.* Competency of xcitnesses.'] Inhabitants of the hundred, district, &c. are not exempted or precluded from giving evidence on either side (sect. 5). • 17 Eng. Com. Law Reps. 343. 507 APPENDIX.— No. I. Bill of Exceptions. SEPARA TE from the record, as to the effect of evidence, in K. B. (Tidd's Forms, 373, 5th edit.) to wit. Be it remembered, that in the term of , in the year of the reign of our sovereign lord George the Third, now king of the united kingdom of Great Britaiji and Ireland, &c. came A. B. by his attorney, ititotiie court of our said lord the king before the king himself at Westminster, and impleaded C. D. in a cer- tain plea of trespass on the case upon promises ; on which the said A. B. declared against him that, &,c. {set out the declaration and oth- er pleadings, proceed as folloics :) And thereupon issue was joined between the said A. B. and the said C. D. And afterwards, to wit, at the sittings of nisi prius, holden at the Guildhall oi the city of London aforesaid, in and for the said city, on the day of in the year of the reign of our said lord the king, be- fore the right honourable Edward Lord Ellenhorough, chief-justice of our said lord the king, assigned to hold pleas in the court of our said lord the king before the king himself, Edward Law, Esquire being associated unto the said chief-justice, according to the form of the statute in such case made and provided, the aforesaid issue so joined between the said parties as aforesaid, came on to be tried by a jury of the city of London aforesaid, for that purpose duly impanelled, that is to say, E. F. of and G. H. of , &c. {names and additions of jury), good and lawful men of the said city of London : at which day, came there as well the said A. B. as the said C. D. by their respective attornies aforesaid ; and the jurors of the jury aforesaid, impanelled to try the said issue, being called, also came, and were then and there in due manner chosen and sworn to try the same issue : and upon the trial of that issue, the counsel learned in the law for the said A. B. to maintain and prove the said issue on his part, gave in evidence, that, &c. {here set out the evidence on the part of the plaintiff, and afteiumrds that on the pari of the de- fendant, and then proceed as follows :) Whereupon the said coun- sel for the said C. D. did then and there insist before the said chief- justice on the behalf of the said C. D. that the said several matters so produced and given in evidence on the part of the said C. D. as aforesaid, were sufficient, and ought to be admitted and allowed as 508 Bill of Exceptions, decisive evidence, to entitle the said C. D. to a verdict, and to bar the said A. B. of his action aferesaid ; and the said counsel for the said C. D. did then and there pray the said chief-justice, to admit and allow the said matters so produced and given in evidence for the said C. D. to be conclusive evidence in favour of the said C, D. to entitle him to a verdict in this cause, and to bar the said A. B. of his agtion aforesaid : But to this the counsel learned in the law of the said A. B. did then and there insist before the said chief-jus- tice, that the same were not sufficient, nor ought to be admitted or allowed to entitle the said C. D. to a verdict, or to bar the said A. B. of his action aforesaid ; and the said chief-justice did then and there declare, and deliver his opinion to the jury aforesaid, that the said several matters so produced and given in evidence on the part of the said C. D. were not sufficient to bar the said A. B. of his action aforesaid, and with that direction left the same to the said jurv; and the jury aforesaid then and there gave their verdict for the said A. B. and 1, damages ; whereupon the said counsel for the said C. D. did then and there, on the behalf of the said C. D. ex- cept to the aforesaid opinion of the said chief-justice, and insisted on the said several matters, as an absolute bar to the said action : And inasmuch as the said several matters so produced and given in evidence on the part of the said C. D. and by his counsel aforesaid ob- jected and insisted on as a bar to the action aforesaid, do not appear by the record of the verdict aforesaid, the said counsel for the said C. D. did then and there propose their aforesaid exception to the opi- nion of the said chief-justice, and requested him to put his seal to this bill of exceptions, containing the said several matters so produced and given in evidence on the part of the said C. D. as aforesaid, ac- cording to the form of the statute in such case made and provided ; And thereupon the said chief-justice, at the request of the said coun- sel for the said C. D. did put his seal to this bill of exceptions, pursu- ant to the aforesaid statute in such case made and provided, on the said day of , in the year of the reign of his pre- sent majesty. Bill of exceptions to be tacked to the record, as to a ivitness^s being bound to answer a question tending to disgrace him, in K. B. {Tidd's Forms, 375.) {After the end of the issue, and award of the venire facias, proceed as follows:) Which said issue, in form aforesaid joined between the said parties, afterwards, to wit, at the sittings of nisi prius, holden at Bill of Exceptions, 509 Westminster Hall, in and for the county of Middlesex, on the day of , in the year of the reign of our lord the now king, before the right honourable Edward Lord Ellenhorough, chief-justice of our said lord the king, assigned to hold pleas in the court of our said lord the king before the king himself, Edward Law, Esquire, being associated unto the said chief-justice, accord- ing to the form of the statute in such case made and provided, came on to be tried by a jury of the said county of Middlesex, for that purpose duly impanelled : At which day came there as well the said A. B. as the said C. D. by their respective attornies aforesaid ; and thejurorsof the jury aforesaid, impanelled to try the said issue, being called, also came, and were then and there in due manner chosen and sworn to try the said issue : And upon the trial of that issue, one E. F. was produced and examined upon oath as a wit- ness, by the counsel learned in the law for the said A. B. in support of the said action ; and upon the cross-examination of the said E. F. by the counsel learned in the law for the said C. D. the said E. F. was asked by the said last-mentioned counsel, whether he had not been imprisoned, upon a conviction for forging a coal-meter's ticket : Whereupon the said chief-justice then and there interpo- sed, and before the said E. F. had given any answer to the said question, declared and delivered his opinion, that the said E. F. was not bound to answer the said question ; and the said E. F. there- upon then and there refused to answer the same ; And afterwards, at the said trial, the said chief-justice, in summing up the evidence given in the said cause to the jury aforesaid, did further declare and deliver his opinion to the said jury, that the said E. FJ's refu- sal to answer the said question, threw no manner of discredit upon him the said E. F. ; and the jury aforesaid thereupon then and there gave their verdict for the said A. B. and /. damages: Where- upon the said counsel for the said C. D. did then and there on be- half of the said C. D. except to the aforesaid opinion of the said chief-justice, and insisted that the said E. F. was bound to answer the said question, and that his refusal to answer the same was, and ought to be considered by the said jury, as an impeachment of his credit: And inasmuch as the said several matters hereinbefore mentioned do not appear by the record, &c. {as in the last.) 510 APPENDIX.— No. II. Affidavit to put off" trial on account of absence of material witness. (Tidd's Forms, 310.). In the King's Bench, &.c. A. B. plaintiff, and C. D. defendant. C. D. of , the defendant in this cause, maketh oath and saith, that issue was joined in this cause, in term last past, and that notice was given for the trial thereof at the sitting within {or, at the sittings after) the said term: And this deponent further saith, that E. F. late of is a material witness for him this deponent in the said cause, as he is advised and believes, and that he cannot safely proceed to the trial thereof, without the testimony of him the said E. F. And this deponent further saith, that in consequence of the notice of trial so given as aforesaid, he this deponent caused inquiry to be made, &c. (stating the nature and result of the inquiry made after the witness, and the time when he is likely to attend.) Sworn, &c. CD. 511 APPENDIX.— No. III. Stat. 1 Will. IV. c. 22. An Act td enable Courts of Law to order the examination of Wit- nesses upon Interrogatories and otherwise. WHEREAS great difficulties and delays are often experienced, and sometimes a failure of justice takes place, in actions depending in courts of law, by reason of the want of a competent power and authority in the said courts to order and enforce (he examination of witnesses, when the same may be required, before the trial of a cause : And wheras by an act passed in the thirteenth year of the reign of his late Majesty King George the Third, intituled, An Act for the establishing certain Regulations for the better Manage- ment of the Affairs of the East India Company, as icell in In- dia as in Europe, certain powers are given and provisions made for the examination of witnesses in India in (he cases therein-men- tioned ; and it is expedient to extend such powers and provisions : Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and tempo- ral, and commons, in this present parliament assembled, and by the authority of the same, that all and every the powers, authorities, provisions, and matters contained in the said recited act, relating to the examination of witnesses in India, shall be and the same are hereby extended to all colonies, islands, plantations, and places under the dominion of his Majesty in foreign parts, and to the judges of the several courts therein, and to all actions depending in any of his Majesty's courts of law at Westminster, in what place or country soever the cause of action may have arisen, and whether the same may have arisen within the jurisdiction of the court to the judges whereof the writ or commission may be directed, or elsewhere, when it shall appear that the examination of witnesses under a writ or commission issued in pursuance of the authority hereby given will be necessary or conducive to the due administra- tion of justice in the matter wherein such writ shall be applied for. II. And be it further enacted, when any writ or commission shall issue under the authority of the said recited act, or of the power hereinbefore given by this act, the judge or judges to whom the same shall be directed shall have the like power to compel and enforce the attendance and examination of witnesses as the court 512 Jlppmdix. whereof they are judges does or may possess for that purpose in suits or causes depending in sucli court. III. And be it further enacted that the costs of every writ or commission to be issued under the authority of the said recited act, or of the power hereinbefore given by this act, in any action at law depending in either of the said courts at Westminster, and of the proceedings thereon, shall be in the discretion of the court is- suing the same. IV. And be it further enacted, that it shall be lawful to and for each of the said courts at Westminster, and also the court of com- mon pleas of the county palatine of Lancaster, and the court of pleas of the county palatine of Durham, and the several judges thereof, in every action depending in such court, upon the applica- tion of any of the parties to such suit, to order the examination on oath, upon interrogatories or otherwise, before the master or pro- thonotary of the said court, or other person or persons to be named in such order, of any witnesses within the jurisdiction of the court where the action shall be depending, or to order a commission to issue for the examination of witnesses on oath at any place or places out of such jurisdiction, by interrogatories or otherwise, and by the same or any subsequent order or orders to give all such di- rections touching the time, place, and manner of such examination, as well within the jurisdiction of the court wherein the action shall be depending as without, and all other matters and circumstances connected with such examinations, as may appear reasonable and- just. V. And be it further enacted, that when any rule or order shall be made for the examination of witnesses within the jurisdiction of the court w^herein the action shall be depending, by authority of this act, it shall be lawful for the court, or any judge thereof, in and by the first rule or order to be made in [the marter, or any subsequent rule or order, to command the attendance of any per- son to be named in such rule or order for the purpose of being examined, or the production of any writings or other documents to be mentioned in such rule or order, and to direct the attend- ance of any such person to be at his own place of abode, or elsewhere, if necessary or convenient so to do ; and the wilful disobedience of any such rule or order shall be deemed a con- tempt of court, and proceedings may be thereupon had by at- tachment (the judge's order being made a rule of court before or at the time of the application for an attachment), if, in ad- dition to the service of the rule or order, an appointment of the time and place of attendance in obedience thereto, signed by the person or persons appointed to take the examination, or by one or more of such persons, shall be also served together with or after the service of such rule or order : Provided always, that every Appendix. 513 person whose attendance shall be so required shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial : Provided also, that no person shall be compelled to produce, under any such rule or order, any writing or other document that he would not be compellable to produce at a trial of the cause. VI. And be it fnrther enacted, that it shall be lawful for any sheriflT, gaoler, or other officer having the custody of any prisoner, to take such prisoner for examination under the authority of this act, by virtue of a writ of habeas corpus to be issued for that pur- pose, which writ shall and may be issued by any court or judge under such circumstances and in such manner as such court or judge may now by law issue the writ commonly called a writ of habeas corpus ad justificandum. VII. And be it further enacted, that it shall be lawful for all and every person authorized to take the examination of witnesses by any rule, order, writ, or commission made or issued in pursuance of this act, and he and they are hereby authorized and required to take all such examinations upon the oath of the witnesses, or afiir- mation in cases where affirmation is allowed by law, instead of oath, to be administered by the person so authorized, or by any judge of the court wherein the action shall be depending ; and if upon such oath or affirmation any person making the same shall wilful- ly and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury, and shall and may be indicted and prosecuted for such oifence in the county wherein such evidence shall be given, or in the county of Middle- sex if the evidence be given out of England. VIII. And be it further enacted, that it shall and may be lawful for the master, prothonotary, or any other persons to be named in any such rule or order as aforesaid for taking any examination in pursuance thereof, and he and they are hereby required to make, if need be, a special report to the court touching such examination, and the conduct or absence of any witness or other person thereon or relating thereto; and the court is hereby authorized to institute such proceedings and make such order and orders upon such re- port, as justice may require, and as may be instituted and made in any case of contempt of the court. iX. And be it further enacted, that the costs of every rule or or- der to be made for the examination of witnesses under any commis- sion or otherwise by virtue of this act, and of the proceedings there- upon, shall (except in the case hereinbefore provided for) be costs in the cause, unless otherwise directed either by the judge making such rule or order, or by the judge before whom the cause may be tried, or by the court. X. And be it further enacted, that no examination or deposi- tion to be taken by virtue of this act shall be read in evidence at 65 514 jippendix. any trial without the consent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the judge that the examinant or deponent is beyond the jurisdiction of the court, or dead, or unable from permanent sickness or other per- manent infirmity to attend the trial ; in all or any of which cases the examinations and depositions certified under the hand of the commissioners, master, prothonotary, or other person taking the same, shall and may, without proof of the signature to such certi- ficate, be received and read in evidence, saving all just exceptions. XI. Provided always, and be it further enacted, that no order shall be made in pursuance of this act by a single judge of the court of pleas of the said county palatine of Durham, who shall not also be a judge of one of the said courts at Westminster. 515 ADDENDA. Page 24. Declarations against interest] Entries made by a de- ceased collector of taxes in a private book, charging himself with the receipt of sums of money, are evidence against a surety of the receipt of the money, though the parties who paid the money are alive and might be called. Middleion v. Malton, 10 B. and C. 317. 36. Evidence of collateral facts.] Where the question was whe- ther a slip of land between some old enclosures and the highway, was vested in the Lord of the Manor or the owner of the adjoining freehold, it was held that evidence might be received of acts of ownership by the Lord of the Manor on similar slips of land not adjoining his own freehold in various parts of the manor. Doe v. Kemp, 7 Bingh. 332. 71. Dispensing with proof of execution of deed.] It appears that the rule laid down in Pearce v. Hooper, does not apply to a case where the party producing the deed has had it so long in his pos- session (as nine months) that he might have been prepared to prove the execution. Vacher v. Cocks, 10 B. and C. 147. 87-88. Competency of party to the suit] So where one of several defendants had suffered judgment by default, it was held that he' might, with his own consent, be called as a witness for the plaintiff. Worrall v. Jones, 7 Bingh. 395. 98. Opinion of ivitnesses.] So in Rickards v. Murdock, \0 B. and C. 527, it was held that the opinion of underwriters might be received, on a question whether certain facts not communicated to the underwriter were material. 132. Right of beginning:] In order to entitle the defendant to begin by admitting the plaintiff's case, he must admit the whole of his case. Doe v. Tucker, 1 M. and M. 536. 140. Damages in action by vendee v. vendor.] If there be no mala fides in the vendor, the vendee will not be entitled to recover more than nominal damages for the breach of the contract, where the vendor from a defect in the title is unable to complete the con- veyance. Walker v. Moore, 10 B. and C. 416. Hopkins y. Glaze- broke was distinguished on the ground that the vendor was in fault, by representing himself as the owner of the property when in fact be was not so. 152. Bill accepted by one of several partners, and applied, in part, to his separate account.] See Wintle v. Crowther, 1 Crom. and Jerv. 316. 197. Attorney's bill] Business done under a commission of bank- ruptcy is not business in respect of which an attorney is compclla- 516 Addenda, ble to deliver a bill a month before the action, Hamilton v. Pitt, 7 Bingh. 232. Charges by an attorney for attending and advising a party in a suit are taxable charges. Smith v. Taylor, 7 Bingh. 259. In the latter case it was held tliat ap item of 3/. for money lent (for the purpose of discharging the costs of the action in respect of which the other items accrued) could not be recovered, no bill hav- ing been duly delivered. 235. Account stated.'] A mere offer of a sum of money to escape from an action and to purchase peace is not evidence of an account stated. Waijman v. Hilliard, 7 Bingh. 101. 238. Plea in ahatement — non-joinder of dorinant 'partner.'] "If a person contract with two others, he may sue them only ; if after the contract be made, he discover that they had a secret partner who had an interest in the contract, he is at liberty to sue the secret partner jointly with them, but he is not bound to do so." Per Parke, J. De Mautort v. Saunders, 1 Barn, and AdoJph. 401. 255. Statute of limitations, icritten promise.] If a promise in writing, taking the case out of the statute of limitations, be lost, parol evidence of its contents may be received. Haydon v. Williams, 7 Bingh. 163. Per Tindal C. J. ibid. " That statute (9 Geo. IV. c. 14) did not intend as it appears to us to make any alteration in the legal construction to be put upon acknowledgments or promises made by defendants, but merely to require a different mode of proof; substituting the certain evidence of a writing signed by the party chargeable, instead of the insecure and precarious testimony to be derived from the memory of witnesses." 258. Payment taking a case out of the statute of limitations.] Atkins v. Tredgold. So after the death of one maker of a joint and several promissory note signed by two, a payment upon it by the ex- ecutor of the deceased party, will not take the debt out of the sta- tute as against the survivor. Slater v. Lawson, 1 Barn, and Adolph. 396. 298. Case for defamation, evidence under the general issue.] Where the plaintiff* declares for a libel on him in the way of his trade, the defendant may show under the general issue, that the plaintiff does not in fact carry on such trade, though the disproving of the allegation does in effect and substance disprove the truth of the imputation in the libel. Manning v. Clement, 7 Bingh. 362. 311. Evidence under non est factum.] Where a party who exe- cutes a bond is at the time competent to execute it, he cannot, under non est factum, show that he was misled as to the legal effect of the bond. Edivards v. Brown, 1 Crom. and Jerv. 307. 317. Debt on hail bond — evidence under non est factum.] On the plea of non est factum, the bail might have been admitted to prove Addenda. 517 circumstances rendering the bond illegal, as that it was executed after the return ; or if a proper case has been made out, showing that the party bailed never was in the county or heard of the writ, and that the bail were imposed on, then they might have been enti- tled to relief on non est factum pleaded. But the onus of proving such fraud or circumstances of illegality lies upon them. Per Lit- iledale,J. Taylm- v. Cloiv, 10 B. and C. 226. 324. Ejectment — ticenty years' possession a sufficient title.'] Thus where the plaintiff proved twenty years possession, and the defend- ant proved that he had been in possession subsequently for ten years, it was held that the plaintiff was entitled to recover. Doe v. Cooke, 7 Bingh. 346. 332. Ejectments-demand in case of lawful possession.] If the agent of a mortgagee applies to a person in the possession of the land, for rent, he cannot afterwards eject him without a demand of possession. Doe v. Halls, 7 Bingh. 322. 334. JVotice to quit by jointenant.] A notice to quit given by one of several jointenants on behalf of the others, will determine the tenancy as to all. Doe v. Summersett, 10 B. aiid C. 135. 363. Marriage void by publication of banns in wrong name.'] The rules on this subject are fully laid down by Lord Tenterden in R. V. Inliab. of Tibshelf 1 B. and Ad. 195. "These rules are fully established, first, if there be a total variation of name or names, that is, if the banns are published in a name or names to- tally diffeient from those which the parties, or one of them ever used, or by which they were ever known, the marriage in pursuance of that publication is invalid, and it is immaterial in such cases, whether the misdescription has arisen from accident or design, or whether such design be fraudulent or not. But, secondly, if there be a partial variation of name only, as the alteration of a letter or letters, or the addition or suppression of one christian name, or the names have been such as the parties have used, and been known by at one time and not at another, in such cases, the publication may or may not be void ; the supposed misdescription may be explained, and it becomes a most important part of the inquiry, whether it was consistent with honesty of pur- pose, or arose from a fraudulent intention. It is in this class of cases only, that it is material to inquire into the motives of parties. 374. False imprisonment.'] By stat. 7 and 8 Geo. IV. c. 29, s. 63, any person found committing any offence punishable, either upon indictment or upon summary conviction, by virtue of that act, except only the offence of angling in the day-time, may be immedi- ately apprehended without a warrant by any peace officer, or by the owner of the property on or with respect to which the offence shall 518 Addenda. be committed, or by his servant, or any person authorized by him, ard forthwith taken before some neighbouring justice of the peace, to be dealt with accordins; to law. There is a similar provision in the malicious injuries act, 7 and 8 Geo. IV. c. 30, s. 28. To justify the apprehension of an offend- er under this act, he must be taken in the fact or on a quick pur- suit. Hanway v. Boultbee, 4 C. and P. 350.* 395. Trover, -proof of properti/ in the plaintiff'.'] Where the defendant, a wharfinger, acknowledged certain timber on his wharf to be the property of the plaintiff, it was held that he could not afterwards dispute the plaintiff's title in an action of trover. Gos- ling V. Birnie, 7 Bingh. 339. 405. Evidence of conversion by demand and refusal.'] The captain of a ship who had taken goods on freight and claimed to have a lien on them, delivered them to a bailee. The real owner deftianded them of the latter, and he refused to deliver them with- out the directions of the bailer. Held that the bailer not having lien upon the goods, the refusal by the bailee was sufficient evi- dence of a conversion. Wilson v. Anderton, 1 Barn, and Adolph. 450. 414. Notice of disputing bankruptcy.] Where notice of disput- ing the trading, &c. has been given, and part of the amount claim- ed could not have been recovered by the bankrupt, the proceedings are not proof of the trading, &c. except as to the amount for which the bankrupt himself might have sued. Gibson v. Oldfield, 4 C. and P. 313." 450. Competency of bankrupt^ A bankrupt cannot be called to explain an act which may defeat his commission. Sayer v. Garnettt 7 Bingh, 103. « 19 Eng. Com. Law Reps. 415. " 19 Id. 403. INDEX. A. ABANDONMENT : when necessary in order to constitute a total loss. 187. what loss is necessary to justify an abandonment. Id. effect of. Id. may be by parol, but must be certain. Id. 188. notice of must be given in reasonable time. Id. must be refused within a reasonable time. Id. party jointly interested may give notice. Id. unnecessary in case of total loss. Id. ABATEMENT: evidence upon pleas in. 237. plaintiff must prove amount of damage. Id. which party begins. 13.3. on plea of non-joinder of co-contractor. Id. bankrupt co-contractor must be joined. Id. if he pleads bankruptcy, nolle prose- qui must be entered. Id. infant co-contractor must not be join- ed. Id. if non-joinder pleaded, infancy may be repUed. Id. plaintiff must not take issue. Id. co-contractors not general partners. Id. dormant partner, non-joinder of can- not be pleaded. Id. 238. Sec Ad- denda. 516. it must be shown that plaintiff knew he was dealing with the partner- ship. 238. letter from one partner, promising payment, without mention of his partners, conclusive against plea. Id. cases in which either one or several may be sued. Id. competency of witnesses. Id. party not joined competent for plaintiff, but not for defendant. Id. 89. but his declarations before ac- tion admissible for defendant. 238. plea of misnomer. ABATEMENT— conY:.WT— continued. variance in statement of record, in ac- tion of debt on judg-nient. 48. evidence in action of debt on bond. 316. See Bond. evidence in action on debt for rent. 317. evidence in action of debt for double va- lue. 31i(. See Double Value. evidence in action of debt for double rent. 321. See Double Kent. DEBTOR evidence in action against sheriff for not arrestingr a debtor. 490. DECLARATIONS of person in whose possession an instru- ment has been, inadmissible to prove the loss of it. 4. of deceased clerk, entry of letter by, ad- missible. 7. of delivery of biU by. 23, 24. when admissible on question of parcel or no parcel. 13. of what persons, are admissible on ques- tions of pedigree. 19. 20. See Hearsay. inadmissible j90si litem motam. 20. of persons, as to puMic rights. 21. of parishioners, on question of parish boundary or parochial modus, admis- sible. 21. See Hearsay. of plaintiff, when admissible for liimself 22. of drawee of bill of exchange to prove want of effects. M 173. of trader, to prove trading. 22. of bankrupt, to prove act of bankruptcy, &.C. Id. of wife, in action for crim. con. Id. 362. of third persons, as to bad character. 22. of persons speaking against their own interest. 24. 515. See Hearsay. of persons, not parties, but interested in the suit. 28. See Admissions. of agents and servants, when admissible. 29. 191. See Agents. of wife, when evidence for her husband. 31. of wife, when admissible in action for crim. con. 91. of party as to marriage at the Fleet, ad- missible. 114. of former holder of bill of exchange, when admissible. 168. of payee of note, in letter to maker, con- temporaneous with, note, admissible to prove usury. 169. of persons who are averred in special damage to have left off dealing, &c. inadniisfible. 294. of plaintiff's father, when admissible in action on promise of marriage. 195. ;f deceased clerk, as to delivery of attor- ney's bill, admissible. 198. tf attoniey's clerk, admissible to prove DECLARATIONS— continued. that attorney imdertook cause gratis. 200. of alleged husband, are not admissible for defendant, on plea of coverture by her. 241. of one of several defendants, in action for false imprisonment, admissible o^ani.st others though made in their absence. 374. but not /or the others. Id. of owner of land, made after trespass, are inadmissible to prove that defendant committed trespass by his command. 385. of bankrupt before his banlauptcy, whe- ther admissible to prove the trading. 420. during continuance of act of bank- ruptcy, admissible. 424. admissible to prove intent with which he departed from dwelling-house. 425. of petitioning creditor, when admissible, in actions by assignees. 452. of assignor of goods, at time of assign- ment, admissible to prove fraud. 487. DECREE of Court of Chancery, how proved. 57. See Chancery. evidence between what parties. 106. DEDICATION of way to public, presumption of. 17, 18. See Presumption. DEDIMUS POTEST ATEM preparing, a taxable item. 197. DEED proof of, by counterpart, notice to pro- duce unnecessary. 2. 4. what sufficient search to let in seconda- ry evidence of. 3, 4. date of, may be varied by parol evidence. 10. parol evidence admissible to prove fraud in. Id. and to explain ambiguity in ancient deeds. 11. aliter in modern deeds. Id. necessary to discharge written contract after breach. 11, 12. execution presumed after thirty years. 14. lost deed, plea of right of way by, evi- dence under. 16. admission of, in answer in Chancery, not proof of execution. 26. receipt in, conclusive. 26. aZjfer if indorsed. Id. See Admissions. execution of, in action of covenant, ad- mitted by payment into court. 32. recitals in, against whom admissible. 33. variance in statement of. 49. in omitting exception. Id. no variance if very words are set out under a testatum, &c. Id. Index. 513 DEED — cmtinued. nor that a proviso not incorporated with covenant is omitted. Id. unless referred to in covenant. Id. may be stated according to legal ef- fect. Id. as omitting wife as party. Id. of legal effect misstated, how ad- advantage may be taken of it. Id. immaterial variances. 50. party misdescribed in deed, but sign- ing by right name, properly declar- ed against in that name. Id. proof of in general. 64. production under subpoena duces tecum. See Subpoena. attesting witness must be called. Id. See Witness. execution, how proved. 66. See Exe- cution. when dispensed with. 70. See Execution, and Addenda. handwriting, how proved. 68. See Handwritincr. custody of ancient* writings. 72. See Custody. may be proved by the attorney who has attested it. 92. where an attorney is bound to produce liis client's deeds. Id. stamps on. 127. of composition, when a defence in as surnpsit. 140. See Accord and Satis- faction. DEFA3IATI0N action for. evidence of character, when admissi. ble in. 37, 8S. See Character. proof of part of cause of action suffi- cient. 17, 285. right of beginning, where a justifica- tion is pleaded, without general is- sue. 132. proof of the speaking of the words. 285. material part sufficient. Id. unless the part not proved qual- ify the others. Id. spoken by way of interrogation, will not support affirmative words. Id. spoken in foreign language will not support averment of Eng- lish words. Id. other instances of variance. Id. proof of the libel. 285. omission, when material. Id. proof of pul)lication of libel. 286. production of libel in defendant's handwriting, semble prima fa- cie evidence of publication. Id, so printing a libel. Id. publication to plaintiff himself, not actionable. Id. DEFAMATION— continued. publication by governor of colony to the law officer. Id. publication by servant. Id. delivery of newspaper to officer of stamp-office. Id. accounting with such officer for stamps. Id. copying of libel by defendant's daughter not sufficient. Id. delivery to reporter of newspa- per. 287. putting into the post-office a de- livery in the county in wliich put in. Id. proof of publication of libel con- tained in newspaper, stat. 38 Geo. III. c. 78. 287. proof of introductory averments. 289. must be proved, unless immateri- al to the character of the libel. Id. cases where the averment has beenheld material. 290,291. where the words are averred to have been spoken of and con- cerning the plaintiff, in a par- ticular character. 291. proof of inuendo. 293. proof of malice. 233. presumed in case of defamatory words. Id. must be proved, where the words are prima facie excusable. Id, proof of other words or libels. 293. admissible to sliov/ animus. Id. but other hbels must refer to that in question. 2J4. not admissible where libellous intent unequivocal. Id. other words may be proved by the defendant to be true. Id. proof of plaintiff's good character. 294. not admissible. Id. proof of damage. Id. words actionable in themselves require no evidence of damage, proof of special damage. Id. must be natural consequence of words spoken, and not too remote. Id. Defence. evidence to disprove introductory alle- gation. 516. evidence to disprove the malice, where admissible under tlic general issue. 295. words spoken by member of Pju*- liamcnt in his place. Id. words spoken in the course of a. judicial proceeding. Id. where tiie privilege is exceed- ed. Id. words spoken in confidence. Id. 544 Index, DEFAMATION— co/UinueJ. bond fide character of servant. Id. mor;il advice. 20G. words spoken with the view of in- vestig^ating^ a fact in which the party is interested. 2i)7. whetlier [lubhcation of i)rocecdui!js of court of justice containing de- famatory matter is actionable. /(/. of prchminary proceedings ac- tionable. Id. but evidence of them may be given in mitigation. Id. that the libel is a fair criticism. Id. proof of truth of libel inadmissible mi- der general issue. 298. proof that the words were first spoken by another inadmissible under gen- eral issue. Id. how pleaded. Id. evidence in mitigation. Id. general evidence of plaintiff's bad character inadmissible. Id. other libels published by plaintiff inadmissible. Id. matters not pleadable in justification admissible. Id. evidence to disprove malice, when . admissible under the general is- sue. Id. accord and satisfaction. Id. whole publication must be read. Id. DEFAULT judgment by, effect of. 34. defendant suffering judgment by, where competent witness. 88, 89. See Wit- ness. DEGREE in physic, how proved. 292. DEGRADING QUESTIONS witness not compellable to answer. 97, See Witness. DELIVERY of deed, when presumed. 67. how proved. Id. of goods, proof of. 211 to 216. See Goods. partner, wife, agent, servant, in cases within the statute of frauds. 217, . 218, 219. See Frauds, Statute of. of goods to carrier. 279. DEMAND •of goods, proof of averment of ready and willing. 209. though made by servant sufficient Id. where made in writing and by parol at same time, sufficient to prove the lat- ter. 1. in action in note payable on, demand need not be proved. 175. when necesscU-y in debt for double value. 320. DEMAND— cojjn'nuc(/. necessary at connnon law, in ejectment for non-payment of rent. 340. dispensed witli by stat. 4 Geo. II- 340. and refusal wlien evidence of conver- sion. 404. See Trover. of perusal and copy of warrant, in ac- tion against constables, &,c. 456, 457. DEMISE covenant for enjoyment implied in word demise. 315. in ejectment, how laid. 324, 325. See Ejectment. from year to year, presumed from pay- ment and receipt of rent. 336. and by acknowledgment of rent- 331. meaning of the words " demise not for one year only, but firom year to year." Id. and of the words " demise for a year, and afterwards from year to year." Id. what instruments amount to an actual demise, or to an agreement to demise. Id. how laid in ejectment by surrenderee of copyhold. 347. in ejectment by executor, may be laid between testator's death and probate granted. 349. so in case of administration. Id. evidence of, on plea of non demisit in re- plevin. 355. DEMURRER to bill in equity, effect of. 34. at law as an admission. Id. to evidence, when it lies. 134. DEPARTING THE REALM. See Act of Bankruptcy. DEPOSIT recoverable in action by vendee or ven- dor. 139. 142. proof of payment of. 140. DEPOSITIONS of persons as to public rights, when ad- missible. 21. See Hearsay. of witness, not evidence as admissions against party who does not cross-ex- amine. 26. office copies when evidence. 55. taken at judge's chambers, how proved. 55. of witness since dead, on trial between same parties, how proved. 58. in Chancery inadmissible, witliout proof of bill and answer. Id. imless ancient, and bill and answer lost. Id. when admissible without proof ol answer. Id. Index. 545 DEPOSITIONS— conftnued. under order of Chancery, admissi- ble without bill or answer. Id. taken under commission. Id. must appear that witness is dead, in- sane, or absent. Id. in India. 59. only evidence between the same parties. 99. in Chancery, evidence between what par- ties. 106. under commission of bankrupt, when made evidence. 413. See Assignees of Bankrupts. in bankruptcy, entered on record. 434. DEPUTATIONS entry of, in books of clerk of the peace, admissible. 112. DESCENT proof of, in ejectment by heir. 343. See Heir. DESCRIPTION matter of, must be proved as laid. 47. 50, 51. DETERMINATION of SUIT. proof of 301. 305. DEVASTAVIT evidence in action suggesting. 471. DEVIATION w^hat amonnts to in actions on policies of insurance. 189. from special contract, effect of 221 . DEVISEE when he may give notice to quit, under special proviso. 336. evidence in ejectment by devisee of free- hold interest. 345. seisin of testator. Id. 343. execution of will. 72. 345. determination of prior estates. 345. refusal to take estate no bar to sub- sequent ejectment. Id. Defence. forgery of will. Id. incapacity of testator. Id. revocation by subsequent will. Id. by other writing. 346. by cancellation. Id. by implication. Id. evidence in ejectment by devisee of lease- hold interest. 347. execution of lease. Id. probate of will. Id. assent of executor. Id. evidence in ejectment by devisee of copy- hold. 347. proof of admittance. Id. See Admit- tance. by original rolls or copy. Id. liability of, under stat. 3 W. & M. c. 14. 473. DIPLOMA of doctor of physic, how proved. 392. 69 DIRECTION of bill, variance in, proof of. 149. DISCHARGE of insolvent, plea of, and evidence. 244. DISCLAIMER waiver of notice to quit, when. 33D. by devisee. 345. DISCONTINUANCE rule for, sufficient proof of terminating suit in case for malicious arrest. 305. whether proof of malice. 306. created by fine of tenant in taU. 326. entry upon land when barred by. 353. how proved. 354. DISSEISOR fine by, with proclamations, renders ac- tual entry necessary. 328. See Fins. DISSEISEE may maintain trespass afler entry, by ro- lation. 381. DISSEISIN entry upon lands, when barred by di«- seisin and descent cast. 353. there must be a wrongful ouster. Id. cases in which descent cast will not toll an entry. Id. DISTRESS. See Excessite Distress. when a waiver of notice to quit. 338. when a waiver of forfeiture of lease. 341. payment to superior landlord under threat of, good. 356. party distraining, and remaining in possession above five days, a tres- passer for the excess. 384. DISTRIBUTION course of 469. DITCH presumption ^s to ownership of. 382. "DIVERS DAYS and TIMES,'; effect of this averment in pleading. 369. 3(J1. DIVINE not privileged firom disclosing confiden- tial communications. 91. DIVORCE Uability of husband for debts of wife afler. 215. See Wife. by Jewish law, how proved. 60. a mensd et thoru does not render wift liable as feme sole. 241. aliter a divorce ab ivitio. Id. DOCK WARRANT evidence of ownership. 179. DOCKET notice of, not of itself notice of act of bankruptcy. 446. DOCTOR of LAWS proof of being, by books of university. 292. DOCTOR of PHYSIC proof of being. 292. See Physician. DOG evidence in action for damage by. 275. 546 Index. DOMESDAY nOOK when admissible. W?. DORMANT PARTNER liability of. 212. 214. See Partner. non-joinder of as defendant cannot be pleaded in abatement. 237. See Ad- denda. 516. with plaintiff not competent witness for him. 8d. i)0. share of, within stat. 6 Geo. IV. c. 16, 572, as to reputed ownership. 441. DOUBLE RENT Stat. 11 Geo. II. c. 19. 321. notice need not be in writing. 321. must give a fixed time. Id. stat. only applies where tenant has power to give notice. Id. on avowry for, defendant cannot recover single rent, 355, 356. DOUBLE VALUE statute 4 Geo. II. c. 28. 319. proof of determination of term and of the demand. Id. if by notice to quit no demand ne- cessary. Id. aliter where tenant holds over after determination of term certain. Id. where demand necessary, dou- ble value recoverable only from time of demand. /(/. action against husband on holding over of wife. Id. receiver appointed by court of chan- eery may make demand. Id. defence, waiver of notice to quit or demand. Id. recovery in ejectment no bar. 321. tenant holding over, under claim of right, not within stat. Id. DRAWEE declarations of when admissible. 22. 173. presentment to. 157. competency of. 173. DRAWER when discharged by non-presentment of bill. 157. when discharged by time given to ac- ceptor. 171. competency of. 172. Sec Witness. DURESS money obtained by, recoverable in action for money had and received. 231. admissions obtained by, not evidence. 35. must be specially pleaded in covenant. 311. avoids a will. 345. DYERS whether they have a general liea. 409. EARNEST what amoiinU to. 219. EASE and FAVOUR proof of plea of in action on bail bond. 317. EASEMENT presumptive evidence of right to. 16. See Frcsumption. cannot be granted by parol. 265. EAST INDIA COMPANY copies of bcolis of admistible. 61. ECCLESIASTICAL COURTS proceedings of, how proved. 59. effect of sentences in. 102. conclusive where the court has exclu- sive jurisdictions. Id. sentence in suit of jactitation not con- clusive. Id. probate granted by, conclusive till re- pealed. 103. payment to executor, who has got probate under forged will, good. Id. it may be sliown that court had no ju- risdiction. Id. or that seal is forged. Id. aliter as to will. Id. ECCLESIASTICAL JURISDICTIONS limits of judicially noticed. 40. ECCLESIASTICAL TERRIER when admissible. 63. proper repository of. 72. EFFECT of EVIDENCE from 99 to 116. See the vai'ious heads. EFFECTS acceptance prima facie evidence of. 157. when want of, will excuse notice of dis- honour. 163. bill made payable at drawer'?, primd facie evidence of want of. 164. EJECTMENT, right of beginning in, by person claim- ing under a will or by heir at law. 132. 133. general evidence for plaintiff in. 323. proof of sufficient title. 324. plaintiff must recover on strength of his own title. Id. twenty years' possession, good title. Id. And see Addenda. 517. possession good title against wrong- doer. 324. tenant estopped from disputing land- lord's title or by an award. Id. right of entry must appear. Id. sufficient if at time of demise. Id. title must appear at time of demise. Id. heir may lay demise on day of ancestor's death. Id. so posthumous son. Id. on entry to avoid fine, demise must be laid after. Id. demise how laid in cases where tenant came lawfully into possession. 325. Index. 547 EJECTMENT— continwerf. in case of tenancy at will. Id. in case of mortgage. Id. tenant for life and remainder- man joint demise by bad. Id. jtintenants and parceners may sever or join in demise. Id. payment of entire rent to agent of lessors, of plaintiff, evi- dence of joint title. Id. tenants in common must sever. Id. corporation, demise by, no ac- tual deed need be proved. Id. plaintiff must prove a legal title. 223. in whom the legal estate resides in case of conveyance to uses. Id. See Uses. and in case of devises in trust. Id. 326. See Trust. presumption of conveyance to cestui que trust. 326. See Presvmjjtion. presumption of surrender of satisfied terms. Id. proof of entry to avoid a fine. 328. See Fine. proof of actual ouster, when necessary. 328. See Ouster. proof of defendant's possession of the premises. 329. proof of the local situation of the pre- mises. Id. variance in description of parish. Id. evidence in ejectment by landlord. 330. See Landlord. proof of the contract of demise. Id. See Lease. whether an instrument is a lease or an agreement. 331. See Lease. tenancies at vv'ill and cases of lawful possession. 332. See Tenant at Will. And Ad- denda. 517. proof of notice to quit. 333. See Notice to quit. how proved. Id. at what time given. Id. by whom. 33,5. to whom. 336. form of. Id, service of. 337. waiver of. 338. when dispensed with. 339. evidence on ibrfeiture of lease. Id. See Forfeiture. waiver of forfeiture. 341. evidence in ejectment by heir. 343. Sec Heir. I)roof of seisin. Id. proof of descent. Id. defence. illeoritimacy. 344. See Illegitimacy. EJECTMENT— coTifiwuerf. evidence in ejectment by devisee of free- hold interest. 345. defence. will void from idiocy or non-sane memory. Id. revocation. Id. See Revoca- tion. evidence in ejectment by devisee of lease- hold interest. 347. evidence in ejectment by devisee of copy- hold. Id. See Copyhold. evidence in ejectment by mortgagee. 348. See Mortgagee. evidence in ejectment by tenant by elegit /(/. See Elegit. evidence in ejectment by conusee of sta- tute merchant or staple. Id. evidence in ejectment by guardian. 349. evidence in ejectment by executor or ad- ministrator. Id. evidence in ejectment by parson. 350. competency of witnesses. 330. Sec Wit- ness. defence. general matters of defence. 351. entry barred by statute of limitations. lil. See Entry. by disseisin and descent cast. 353. See Disseisin. by discontinuance. Id. See Dis- continuance. execution in. 354. judgment in, when evidence and for what purposes in trespass for mesne profits. 3J2, 3J3. recovery of mesne profits in ejectment under stat. 1 Geo. IV. c. 87. 394. ELEGIT proved by copy of judgment roll. 56. evidence in ejectment, by tenant by ele- git. 348. ENCROACHMENT on waste. 352. ENDOWMENT of vicarage, what secondary evidence o£ 8. presumption of, when. 14. ENLARGEMENT of TIME, proof of, in action on award. 196. ENTRY plaintiff must prove right of, at time of demise, in ejectment. 324. but sufficient, though divested before trial. Id. actual, when necessary to avoid a fine levied with proclamations. 328. See Fine. when barred by the statute of limitations. 351. possession must be adverse. Id. no adverse possession. Id. where possession of the party i* 548 Index. R^TRY— continued. t}ie possession of lessor of plain- till'. Id. as in abatement by younger son. Id. or possession by parcener, &,c. Id. unless there be actual ouster. Id. where the estate of him in posses- sion and of the lessor are parts of the same estate. Id. OS particular tenant and remain- der man. Id. or landlord and tenant. /(/. where the relation of trustee and cestui que trust exists. Id. in case of mortgagor and mortgagee. 352. what will make an adverse possession of the waste as against tlie lord. Id. what will make an adverse possession of the waste as against the tenant's lessor. Id. construction of the statute of limita- tions, and of the saving clauses. Id. 353. when tolled by disseisin and descent cast. 35-3. effect of, in revesting possession ab ini- tio. 381. actual entry when necessary to maintain trespass for mesne profits. 393. EQUITY. See Chancery. equitable title insufficient in ejectment. 325. where an equitable or legal estate is cre- ated by devises in trust. Id. See Trust. ESCAPE evidence in action against sheriff for escape on mesne process. 490. proof of the debt due from party ar- rested. 491. proof of the issuing and delivery of the process to sheriff. Id. proof of the arrest. Id. proof of the escape. Id. defence. Id. •vidence in action against sheriff for es- cape in execution. 492. proof of arrest. Id. proof of escape. 493. defence. 494. ESCROW what delivery will make an escrow. 68. ESTOPPEL of defendant on plea of misnomer, by having put in bail in wrong name. 239. by acquittance under seal. 14. when admission operates as. 25. judgment, to operate as, must be plead- ed. 102. EVICTION a defence in use and occupation. 146. •o of part, if tenant gives up the residue. Jd. EVICTION— continued. but if he remains in possession of resi- due, sc7nble liable pro tanto. Id. of undertenant, eviction of tenant. Id. evidence under nil nebet in debt for rent. 319. EXAMINATION. See Witness. of party and servants under stat. 7 and 8 Geo. IV. c. 31. 504. EXCESSIVE DISTRESS evidence in action for. 307. form of action. 308. must be in case. Id. alleged exception. Id. where rent has been tendered, plaintiff may waive trespass, and bring case. Id. proof oftenancy and rent due. 308. exact rent due not material. Id. situation of premises must be prov- ed as laid. Id. proof of the distress. 308. not necessary to show goods taken away. Id. what is a sufficient seizure. Id. act of bailiff connected with defend- ant. 309. proof of excess of the distress. 309. value of the goods seized. Id. defence. entire chattel, and no other to bo seized. 309. recovery in replevin for same tak- ing. Id. no defence that plaintiff interfered in sale, &c. 310. defendant not bound by his notice of distress. Id. broker incompetent witness for de- fendant. 310. EXCEPTION omission of, in statement of contract, & fatal variance. 44. in statement of deed. 49. EXCEPTIONS, BILL OF where it lies. 135. form of. 507. EXCHEQUER effect of judgments in rem in. 104. EXCISE copies of books of admissible. 61. effect of, in evidence. 112. evidence in actions against officers of! 460. See Customs. judgment of commissioners of, conclu- sive. 104. EXECUTION in ejectment. 354. property in goods divested on execution executed. 397. where debtor is taken in execution, there is no good petitioning creditor's debt, against goods of bankrupt, when valid by 6 Goo. IV. cl6.t.81. 445. Index. 549 EXECUTION— coniinuecf. what is an execution within the stat. 8 Anne, c. 14. 488. EXECUTION OF DEED, &c. how proved. 66. acknowledgment by party to witness, sufficient. Id. sealing and delivering may be pre- sumed. Id. blank need not be proved to have been filled up at time of execution. Id. identity must be proved. Id. 67. imperfect recollection of witness. 67. sealing need not be in witness's pre- sence. Id. one seal in deed, executed by two, sufficient. Id. aliter under execution of power. Id. sealing and deUvering presumed. Id. delivering how proved. 67. by corporation. 68. by virtue of power of attorney. Id. in general, power must be by deed. Id. when it makes deed operate as an escrow. Id. by marksman, how proved. Id. admitted by payment into court in action of covenant. 32. when attested by attorney, he is not pri- vileged from giving evidence. 92. proof of, when dispensed with. 70. when it is 30 years old. Id. if from proper custody. Id. witness, if alive, need not be called. Id. unless in case of rasure. Id. where party calling for it claims an in- terest under it. 70, 71. And see Addenda. 517. replevin bond admissible against she- riff, in action for taking insufficient pledges. 71. by rule of court, or admission of the party. Id. where deed is in possession of defend- ant, who pleads non est factum, and does not produce it on notice. Id. in case of lost bond. Id. but if witnesses known, they must be called. Id. in case of deed enrolled. Id. 72. EXECUTOR effect of pleading tlie general issue, in action by. 33. in trust, a competent witness. 85. bound by verdict against his testator. 100. may indorse bills of his testator. 155. bill accepted by testator must be pre- sented to. 158. n«tic« of dishonour to. 160. EXECVTOR—cmtinued. set-off in case of action by or against. 253. not affected by writteu acknowledgment of co-executor, taking case out of sta- tute of limitations. 255. acknowledgment of debt to, will not support count on promise to testator. 258. to charge him as assignee in covenant, it must appear that he has entered. 312. notice to quit, by one of several under special proviso, bad. 336. proof of assent by, in ejectment by de- visee of term. 347. evidence in ejectment by. 349. competent witness in ejectment. 351. cannot have action for breach of promise of marriage, unless personal estate be damaged. 193. of attorney, need not deliver a signed bill. 199. may recover for trespass committed be- fore probate. 377. property vests in, on testator's death. 398. where an executor de son tort can give evidence of due administration in re- duction of damages in action by right- ful executor. 412. disposing of his testator's stock does not become a trader within the bankrupt law. 421. goods in bankrupt's possession as exe- cutor, will not pass to assignees under 6 Geo. IV. c. 16, s. 72. 442. evidence in actions by. 461. proof of representative title when ne- cessary. Id. where plaintiff declares on cause of action in testator's time, and makes profert, general issue admits his ti- tle. Id. but only tlie title stated. 462. title in such case must be denied by plea. Id. where plaintiff declares on cause of ac- tion in his own time and makes pro- fert, general issue does not admit title. Id. proof of probate or letters of adminis- tration. 463. where letters of administration are void or voidable. Id. bona notabilia what are. Id. where probate is void or voidable. 464. forgery of probate. Id. ill action by several, proof of probate to one is evidence of titlo of all. Id. defence. statute of limitations. 465. payment. Id. to executor tmder Corg^ will, food. Id, 550 Index. 'EXECUTOR— continued. aliter where supposed testator is liv- ing-. Id. evidence in action against executor de son tort. Id. non-joinder asplaintiff of another execu- tor must be pleaded in abatement. Id. competency of witnesses. Id. evidence in actions ag-ainst. 4()6. no action maintainable for distributive share. Id. evidence on plea of ne unques execu- tor. Id. admits cause of action. Id. proof of probate. Id. 5f). suftieient to sliow dcfcmdant exe- cutor de son tort, 466. evidence on plene administramt. proof of assets. 467. issue on plaintiff. Id. in case of assets after viTit sued out, plaintiff must reply special- ly. 467. inventory proof of assets. Id. copy o'l\ signed only by apprais- ers, not evidence. Id. whether necessary to prove that the debts in the inventory have been paid. 468. when submission to arbitration is evi- dence of assets. Id. admission that debt was just, no evi- dence. Id. nor piyment of interest on bond. Id. probate stamp, presumptive proof of assets. Id. amount of damages must be proved. Id. on plene administravit, if some of the executors have no assets, they are entitled to verdict. Id. evidence in answer to proof of assets. Id. payments, course of distribution. 463. after action broug-ht, cannot be gi- ven in evidence under plene ad- ministravit. Id. creditor admissible to prove the debt and payment. /(/. attesting witness to, in case of bonds, must be caUed. Id. retainer. Id. evidence on plea of outstanding judg- ments and debts. 470. not evidence under plea of plene administravit. Id. evidence in an action suggesting a de- vastarAt. 471. EXECUTOR DE SON TORT when he may retain payments, in action by rightfiil executor. 412. 465. EXECUTORS DE SON TORT— cont'J. sufficient to prove defendant executor de son tort, in actions against executors. 466. what acts will make a man executor de ■son tort. 466, 467. cannot retain for his own debt. 46D. EXEMPLIFICATION proof of record by. 54. See Record. proof of decree in Chancery by. 57. of probate, in case of loss. 60. of letters of administration. Id. not evidence of devise of lands. 72. EXTENT old, regularity of, presumed. 56, 57. EXPENSES of witnesses. 76. EXPULSION evidence on plea of, in action of cove- nant. 310. evidence under plea of nil debet in debt for rent. 319. EXTORTION money obtained by, recoverable. 231. evidence in action for, against sheriff. 498. EXTRAS value or, when recoverable. 222. FACTOR presumptive evidence of having account- ed for goods to be sold on commission. 15. selling goods without disclosing princi- pal, purchaser, in action by latter, may set off debt due from factor. 253. evidence of conversion by. 403, 404. may pledge goods by 6 Geo. IV. c. 94. 410. goods in possession of, do not pass to as- signees vmder 6 Geo. IV. c. 16, s. 72. 442. FALSE IMPRISONMENT form of action, in actions against justi- ces, &c. 372. trespass will not lie against judicial offi- cer. 373. form of action in false imprisonment by a private individual. Id. proof of the imprisonment. 374. declarations of one of several defendants, when admissible for or against the others. Id. what amounts to an imprisomnent in law. 459. See Constable. who may apprehend offenders under 7 and 8 Geo. IV. c. 29, and 8 Geo. IV. c.30. Addenda. 517. FALSE REPRESENTATION in action for false representation of char- acter, declarations of plaintiff admissi- ble, that he trusted the party on the credit of the representation. 22. Index. 551 FARMER whether a trader within the bankrupt law. 4-20. FARRIER may recover under the commcn count lor work, labour and materials. 222. FAST DAY bill due on, to be presented on previous day. 158. notice of dishonour good on following day. 161. FELONY conviction for, renders witness incompe- petent. 78. of carrier's servant takes caseoutof stat. 1 WiU. IV. c. 68, 284. suspicion of, will not justify a private in- dividual in arresting. 374. aliter a constable. Id. 460. , private individual may imprison to pre- vent commission of 374. restitution of goods on conviction for. 397. semble offence must be a felony to ena- ble party injured to sue the hundred. FEME COVERT. See Wife. FENCES who is liable for not repairing. 267. FEOFFMENT by termor, effect of, 328. FICTITIOUS NAME of person as witness, effect of 66. FIERI FACIAS variance in, statement of. 49. FINE latent ambiguity in, explainable by parol evidence. 13. See Parol Evidence. proved by chirograph. 5.'>. but not tlie proclamations. Jd. proof of entry to avoid, in ejectment 328. only necessary where levied with proclamations. Id. where levied by owner of tortious fee. Id. by termor, who has made feoff- ment. Id. by tenant for life. /(/. by tenant in tail, a discontinuance, and entry tolled. Id. • by tenant in tail in remainder, does not divest, and no entry necessary. Id. by termor without feoffment, no entry necessary. Id. by parcener jointenant or tenant in common does not divest, and no entry necessary. Id. by mortgagor in {wssession. Id. ejectment nmst be brought within year after entry, with proclamations, re-entry after will not revest possession ab initio. 381. FIRE • proofof lossof ship by. 184. •arricr answerable for loss by. 378. FIRE — continued. escape of prisoner by reason of, sheriff excused. 434. FIXTURES value o'', not recoverable on count for goods sold and delivered. 210. FLEET prison books of, copies of not admissible. 61. admissible to prove date of commit- ment. 112. but not the cause. Id. register of marriages at, semble inadmis- sible. 114. See Re sister. FOREIGN BILL of EXCHANGE. stamp on. 125. 128. protest of. 163. See Notice of Dishonour. FOREIGN CIIAPEL register of, inadmissible. 114. FOREIGN COURTS seal or proceedinge of, not judicially no- ticed. 40. must be used to authenticate their records. 54. See Records. effect of sentence of foreign Court of Ad- miralty. 103. effect of judgment of in general. 106. conclusive unless founded in injustice. injustice. Id. 107. debt or assumpsit lies on. 107. judgment in Irish court not a record here. Id. certificate of Vice Consul not evidence of facts stated in it. Id. FOREIGN INSTRUMENTS how stamped. 128. FOREIGN LAWS not judicially noticed. 40. proof of 60. if written, by copy duly authenticat- ed. 60. of French law, by printed collection. of imwritten law, by parol. Id. divorce by Jewish law at Leghorn, proved by parol. Id. person skilled in, may be called to prove their effect. 98. 361. FOREIGN L.\NGUAGE words sjjoken in, must not be averred to be spoken in English. 285. FOREIGN MARRIAGE proof of 360. FOREIGN REGISTER of marriage, not admissible. 61. 114. FOREIGNER liability of foreigner as feme sole. 241. FORFEITURE of servants' wages, what shall amount to. 203. See Servant. evidence in ejectment on forfeiture of lease. 339. proof of demise. Id. .')52 Index. IXmYElTVRE— continued. proof of non-perforinaiico of cove- nant. Id. proof of breach of condition in agree- ment of demise. Id. condition tliat lessor and lessee may enter on sub-lessee; lessee alone may re-enter. Id. evidence in case of entry for non- payment of rent at common law. 340. by stat 4 Geo. II. no formal demand or re-entry required. 340. evidence mider the stat. Id. service of declaration. Id. no sufficient distress. Id. premises searched. Id. imlcss prevented by land- lord. Id. variance in amomit of rent im- material. Id. particular of breaches of cove- nant. Id. 341. proof of forfeiture in imderletting. 341. waiver of Id. where lease is voidable as where it is for life. Id. lease for years on condition " to be void," voidable atoptionof lessor. Id. so in case of condition " that lessor shall re-enter." Id. lying by no waiver. Id. acceptance of rent accruing after for- feiture, with notice, a waiver. Id. covenant for such rent a waiver. Id. insufficient distress for rent due before forfeiture, no waiver. Id. continuing breach, acceptance of rent no waiver. Id. when notice to repair is a waiver of forfeiture, in case of a general and particular covenant to repair. 342. accruing of forfeiture prevented by act of lessor. Id. prevented by tender of rent. Id. FORGERY party paying money on forged instru- ment may, in general, recover the amount in action for money liad and received. 229, 230. vmless he has been guUty of neghgence or delay. 230. of bill, proof that party has forged other bills inadmissible. 36. whether it may be proved by person skilled in detecting. 70. conviction for, renders witness incompe- tent. 78. of seal, opinion of witness admissible on. 98. payment under probate of forged will good. 103. YORG'ERY— continued. when acceptor of bill may set up forgery of his handwriting. 153. indorscr of bill cannot set up forgery of drawer's hand. 16(5. FRANKS inspector of, inadmissible to prove hand- writing. 69. FRAUD instrument in hands of party by, notice to produce unnecessary. 4. parol evidence admissible to prove, in written instruments. 10. See Parol Evidence. witness cannot render himself incompe- tent by fraudulently acquiring an in- terest. 81. defence in action by vendor against ven- dee of real property. 138. in accepting bills, by one of several part- ners. 152. avoids a bill of exchange in toto. 168. when a defence in assumpsit. 241. opens an adjustment on policy. 187. a defence in actions on policies of insu- rance. 189. waiver of, and conversion into contract. 209. goods obtained by, on credit, effect of 220. money obtained by, recoverable in action for money had and received. 231. avoids a will, 345. in case of fraudulent sale or transfer of goods, no property passes. 397. replication of fraud to plea of outstand- ing judgment. 470. evidence of fraudulent assignment. 484. in party interested in judgment, defence in action against sheriff for an escape. 494. FRAUDS. Statute of. agreement in writing under, may be dis- charged before breach by parol. 12. signature according to, admitted by pay- ment of money into court. 32. signature and attestation of wills under. 73. See Wills. 29 Car. II. c. 3, s. 4, sale of lands. 136. note or writing must specify terms. Id. contract made out by letters, &c. Id. parol evidence admissible to prove identity of writing. Id. both parties must be named. Id. signingof the contract. 137. printing name sufficient. Id. immaterial in what part. Id. sufficient if signed as witness. Id. good, if signed by party to be charg- ed only. Id. agent need not be authorised in writing;. Id. Index. 553 FRAUDS. Statute of— continued. one of the parties cannot be agent for tlie other. Id. auctioneer agent for both parties. Id. signing by clerk of agent not suffi- cient. Id. promises to marry, not within the 4th sect. 193. 23 Car. II. c. 3, s. 17, sale of goods. 204. bought note alone insufficient. Id. executory contract for sale of goods within the stat 204. aliter contract for work and labour, and materials. Id. Lord Tenterden's act, 9 Geo. IV. c. 14, includes contracts for goods not made, &c. Id. 205. several articles, each under lOZ., but more together, brought at one tune within the stat. 205. sales by auction within the stat. Id. what note or memorandum sufficient Id. price must be stated. Id. And see further. 136. auctioneer agent of both parties. 205. his writing down buyer's name in catalogue, with conditions annexed, suffi- cient. Id. aliter if conditions not an- nexed. Id. subsequent assent ratifies signature made without authority. 20G. broker agent of both parties. Id. bought and sold notes, evi- dence of contract. Id. though broker's book not signed. Id. if notes differ, no valid con- tract. Id. if no notes signed, entry in broker'sbookevidence. Id, mistake in seller's firm. 2( 6. alteration of sale note viti- ates. Id. what not a sufficient acceptance of goods. 216. there must be a delivery and ac- ceptance. 216, 217. no acceptance while buyer may object to quantum or quality. 217. measuring and setting aside part insufficient. Id. cases on sale of horses. Id. dehvery to wharfinger insuffi- cient. Id. directions to third p«r««n, in 70 FRAUDS. Statute of— continued. whose possession the goods are, to pack them, insufficient. Id. marking and measuring goods at shop insufficient. Id. order to agent in possession to hold goods for vendee insuffi- cient. 218. acceptance of part under a sepa- rate order, not an acceptance of other goods sent therewith. IJ. ^ what a sufficient acceptance. Id. acceptance by a sub-vendee. Id. changing the stable of a horse by order of the purchaser. Id. purchaser writing his name on the article? //. See 216. symbolical delivery. 219. order to agent in possession to hold for purchaser, and assent by him. IJ. delivery and acceptance of part. Id. so of sample where part of bulk. IJ. what amounts to earnest. Id, FRAUDULENT ASSIGNMENT proof o^", in action against sheriff for tak« ing plaintiff's good?. 485. See Sheriff, FRAUDULENT CONVEYANCE when an act of bankruptcy. 428, 429. See Act of Bankruptcy. FRAUDULENT PREFERENCE what amounts to. 430, 431. See Act of Bankruptcy. FREE WARREN o^vner of, may have trespass q. c. f. 380. FREIGHTER of SHIP owner pro hoc vice, and general owner, may commit barratry. 185. GAME in action on game-laws plaintiff not bound to prove want of qualification in defendant. 52, GAMEKEEPER proof of having appointed, by entry in books of clerk of the peace. 112, 113. appointment of, no evidence of right to soil. 343. GAMING when a defence in actions on bills of ex- change. 168. GAZETTE evidence of acts of state. 111. as proclamations. Id. but not of the King's grants. Id. of notices, semhlc only in the same manner as a news-paper. Id. 280. proof of the plact; where bought imne ontumry. 112. 554 Index. GENERAL ISSUE GOODS— cojitinued. what may be given in evidence under, in assuinpt-it. 23'J. paj'nicnt, when. 247. matter of dclonce arising after action brought cannot be given in evidence under. 171. when matter of defence may be given in evidence under, in cctions lor defama- tion. 295 to 2:i8. See Justification ; and see Addenda, 51G. bankruptcy cannot be given in evidence mider. 454. justices, constables, &c., may give spe- cial matter in evidence under the ge- neral issue. 458. BO officers of customs or excise. 460. what may be given in evidence mider, in trespass quure clausum f regit. 385 where it admits plaintiff's title in action by executor or administrator. 461, 462. GIFT vesting of property in case of. 397. GOOD FRIDAY bill due on, to be presented on previous day. 158. notice of dishonour good on follow- mg day. 161. GOODS assumpsit for not accepting. 204. plaintiff must prove the contract. 204. in writing, if within the statute of frauds. See Frauds, Statute of. ratified by subsequent assent. 206. broker, agent of both parties. Id. bought and sold notes. Id. performance of Conditions precedent must be shown. 206. tender and refusal. Id. unless purchaser was to fetch away the goods. Id. damages, if goods to be paid for by bill, interest recoverable from the time of bill due. 207. count for goods bargained and sold. Id. whole value recoverable. Id. not recoverable where property has not passed. Id. as where goods remain to be weighed. Id. or where there is no specific appropriation. Id. maintainable tliough goods have been resold. Id. Defence. goods not according to sample or contract. Id. but if sample not mentioned in sale note, no defence. Id, 208. in case of joint order, purchaser not bound to take part. 208. purchaser by sample may inspect the whole bulk. Id. contrr.et to sell goods which vendor has yet to buy, on speculation, void. Id. assumpsit for not delivering goods. Id. plaintiff must prove contract, and per- formance of conditions precedent, "Tid am.ount of damage. Id. 209. coi.tVuct complete on acceptance of proposal. 2U8. but oftcr may be retracted before ac ceptance. Id. 209. proof of averment that plaintiff was ready and willing to accept. 209. damages, where goods are to be deliv- ered on a future day. Id. in contracts to replace stock. Id. assumpsit for goods sold and delivered. 209. plaintiff's evidence. Id. proof of contract. Id. waiver of tort. Id. 210. but plaintiff must show clear title. 210. value of fixtures not recoverable on this count. Id. nor of standing trees. Id. of growing crops recoverable on count for crops bargain- ed and sold. Id. or for goods bargained and sold. Id. of materials in building not re- coverable on count tor goods sold. Id. where goods are taken as part of the price, whether necessary to declare specially. Id. proof of delivery. 211. what amounts to. Id. where part only are delivered. Id. delivery on sale or return. Id. to whom. Id. third person at defendant's re- quest, carrier. Id. partner 312. See Partner. wife. 214. See Wife. agent. 215. See Agent. servant. 216. See Servant. what asufficient acceptance of goods within the statute of frauds. 216. See Frauds, Statute of. value of the goods. 219. presumed to be of the cheapest commodity, if not proved. Id. cannot be enhanced by vendor using superior materials. Id. Defence. 219. evidence in reduction of damages. 219. See Damages. action brought before credit ex- pired. 220. See Credit. interest not recoverable on money dua for goodii sold. 235. Index. 555 GOOD?,— continued. presumptive proof of payment for. 14, 15. agreement relating to sale of, exempt from stamp-duty. 12U. where and in what manner the property in, passes. 3J5 et seq. ; and see Trover. where goods are ordered to be made, at what period the property vests. 39 G. evidence of conversion of. 402, 403, 404. See Dover. where they pass to the assignees of a bankrupt, as being in his order, dispo- sition, and control. 43J. See Reputed Ownership. GUARANTEE will not ibrm subject of set-off. 2.51. plea of tender in action on, admits writ- mg. 261. GUARDIAN admissions by, not evidence against in- fant. 2J. incompetent witness for infant. 83. release by, to witness, not sufficient. 93. in socage, possession by, is seisin of in- fant. 343. evidence in ejectment by. 349. holding over, made a trespasser by 6 Anne, c. 18. 384. GUERNSEY copy of register from, inadmissible. 114, H. HABEAS CORPUS ad testificandum. 77. HAND- WRITING proof of. 68. degree of knowledge of witness. Id. by correspondence. 69. inspector of franks, who has never seen party write, insufficient. Id. comparison of hands inadmissible. Id. unless in case of ancient writ- ings. Id. whether person of skill may speak to genuineness of hand-writing. 70. court and jury may compare hands. Id. HEARSAY general rule. 19. admissible in questions of pedigree. Id. declarations of family, descriptions in will, inscriptions on monuments, &c. Id. 20. pedigree in family mansion. 19. bill in Chancery. 20. declarations of parent as to time of child's birth. 20. alitcr asto place. Id. entry in register no evidence as to time of child's birth. Id. declarations of deceased husband as tolfgitimacy of wife admissible. Id declarations of Eurgeon a» to time of] child's birth. Id. HEARSAY— continued. declarations of servants inadmissible. Id. declarations of deceased person as to his own marriage admissible. Id. declarations of deceased mother as to non-access inadmissible. Id. not admissible post litem motam. Id. though net known to the person making the declaration. Id. admissible to prove public rights, and rights in nature of such. Id. manorial custom. 21. boundary between parishes, &.C. Id. quoire prescriptive private right. Id. tradition of particular fact inadmis- sible. Id. customary right, foundation laid by showing acts of ownership. Id. must not be post litem motam. Id. distinction where there are two suits not on same custom. Id. depositions in eld suit admissible, witliout proving the character of the deponents. Id. declarations of parishioners inad- missible on boundary of parish. Id. on questions of parochial mo- dus. Id. admissible when part of the transaction. Id. in action for false representation of solvency, declarations of plaintiff that he trusted the party on the faith of the representation. 22. declarations of drawee of bill in ac- tion against drawer. Id. of trader as to absenting him- self. Id. of bankrupt as to the state of his affairs. Id. of plaintiff in action for assault. Id. of wife in action for crim. con. Id. of tiiird persons as to general bad character. Id. admissibility of ancient documents. 22. old deeds, &c., raising presumption of certain facts. Id. as leases, to prove land granted free from common, Id. though possession under them not shown. Id. entry of licenses in court rolls of manor to prove prescriptive rights. 23. old deed, staling amount of toll. Id. adniissiblc, oi' persons having no interest to misrepresent. 23. declarations of parlies not admissi- ble for themselves. entries in corporatioa books. Id. 550 Index. HEARSAY — continued. survey of manor by owner. Id. declarations of deceased rector, &c. admissible for successor. Id. of deceased clerk. Id. 24. entries in banker's ledger admissi- ble to show state of customer's ac- coiuit. 24. Admissible of persons speaking against their own interest. Id. of steward, entries of money receiv- ed by liiin. Id. of master of vessel, bill of lading. Id. of occupier of land, as to renting under a particular person. Id. of collector of rates, entries of mo- ney received by. Id. Addenda. 515. of clerk, entries of money received by. 24. of land-tax collector, to show occu- pation. Id. of shopman, as to delivery of goods. Id. the party making the declarations must appear to be dead. Id. not sufficient that he is abroad. Id. the effect of the declaration must be to charge the party. Id. evidence of reputation admissible on question of reputed ownership. 438. HEDGE presumption as to ownership of. 382. HEIR bound by verdict against ancestor. 100. may lay demise in ejectment on day of ancestor's death. 324. evidence in ejectment by. 343. proof of seisin of ancestor. Id. by possession. /(/. by possession of lessee for years. Id. possession of guardian in socage seisin of infant. Id. shooting, and appointing gamekeep- er, no evidence of seisin. Id. declarations of deceased tenant of holding under A. evidence of A.'s seisin. 343. proof of descent. 343. death of intermediate heirs. Id. in case of collateral descent. Id. mode of proof, pedigree. 20. 62.113, 114. 343. proof of marriages. 114.343,344. Defence : illegitimacy. 344. proofof marriage being void. Id. marriage of minor by license, with- out consent of father, good. Id. what marriages void by marriage act. Id. rules as to presumptive evidence of iKHi-access. Id. HEARSAY— continued. presumption of bastardy in separa- tion a mensa et thoro. 345. wife cannot prove non-access. Id. but may prove connexion with others. Id. competent witness in ejectment for tlie land. 350. cannot have trespass quare clausum fre. git before entry. 380. evidence in action against. 471. on plea of riens per descent. Id. execution of the bond. Id. seisin and death of ancestor. Id. statement of the descent in the de. claralion. Id. 472. what are assets. 472. replication under stat. 3 W. &. M. C. 14. 473. Stat. 11 G. 4. and 1 W. 14, c. 47, ex. tending the remedy to covenan- tees. 474. HERALD suing for making out pedigree must give general evidence of its truth. 224. ancient writing relating to monastery in- admissible when produced from her- ald's office. 72. rolls, or ancient books, in his office, evi- dence of pedigree. 113. so visitation books. Id. HERBAGE owner of, may have trespass, q. c. f. 379. HERIOT may be proved to be due by tenant, though not expressed in lease. 11. variance in statement of right to. 46. HIGHWAY surveyor of parish, competent witness by highway act. 86. in action for disturbance in, plaintiff must show a particular damage. 270, 272. what amounts to. 270, 271. presumption of ownership of soil of. 381. HISTORY general, when evidence. 113. HOLDING OVER lease created by, with payment of rent 330. terms of holding regulated by former lease. 334. tenant holding over may maintain tres- pass q. c. f. 380. HONORARY OBLIGATION whether it incapacitates witness. 84. HORSE what a sufficient acceptance of under Stat, of frauds. 217, 218, See Frauds. evidence in action or warranty. 190. special action, or money had and re- ceived on rescinding of contract Id. special action. Id. Index. 557 HORSE— eonhnuerf. proof of consideration. Id. proof of premise or warranty. 191. liigh price no warranty. Id. what amounts to a warranty. Id. qualified warranty. Id. servant of horse dealer employed to sell has authority to war- rant. Id. servant's declarations at time of sale admissible. Id. receipt containing warranty ad- missible. Id. variance Ln qualification of warran- ty. Id. proof of breach. 191. whatamounts to unsoundnes. 192. scienter need not be proved. Id. damages. Id. when horse-keep may be reco- vered. Id. when costs of defending action by purchaser may be recov- ered. Id. competency of witnesses. /(/. See Witness. HOU?E what amounts to a nuisance to. 266. where action lies for pulling down neigh- bouring house, whereby plaintiff's is injured. Id. occupier of, bound to rail in the area. 276. action against hundred for demolition of 4'J9. HOYMAN liable as a common carrier. 278. HUNDRED in action against, party robbed compe tent witness. 86. I evidence in actions against. 498. Stat- ute 7 and 8, Geo. IV. c. 31. sec. 2, what buildings, «&c. are with- in the Stat. 499. sec. 3. oath and examination before the justice. Id. sec. 4. service of process on high constable. 500. sec. 5. inhabitants competent wit- nesses. Id. sec. 8. summary proceeding for dam- age under 3i)l. Id. sec. 10. remedy against high con- stable. Id. sec. 11. parties to actions for dam- age to churcliea and corporate property. Id. sec. 12. as to offences committed in counties, of cities, &c., not being part of a hundred. 501. proof of plaintiff's interest. 502. proof of the offence. Id. what is a " beginning to demol- ish." 503. HUNDRED —continued. proof that the offence was committed within the hundred. 504. examination of party, — continued. &c., or in furtJierance of illegal transaction. Id. MONEY S(^1{IVENER a trader within tlie bankrupt law. 422. MONUMENTS inscrijjtions on, evidence on questions of pedigfree. 19. See Hearsay, MORTGAGE equity of redemption on mortgage in fee not lojral assets. 472. aliter in ease of mortgage for years. MORTGAGEE of ship not liable for repairs. 223. See Ship. liable as assignee, in covenant, before en- try. 312. in ejectment against, demise may be laid before termination of will. 325. evidence in ejectment by. 348. where there is tenant in possession under mortgagor. Id. payment to, when evidence imder plea of riens in arrear in replevin. 357. MORTGAGOR fine by, does not divest estate. 328. MUTUAL ACCOUNTS effect of, in taking a case out of the sta- tute of limitations. 261. MUTUAL CREDIT Stat. 6. Geo. IV. c. 16. s. 16.252. meaning of the words. 447. N. NAVY BILL amount of, when forged, recoverable. 229. NAVY OFFICE register of, evidence of death of sailor. 112. NE UNQUES EXECUTOR evidence imder plea of 466. See Execu- tor. NECESSARIES liability of husband for necessaries sup- plied to wife. 214, 215. See Wife. what are accomited such for infant. 245. NECESSITY way of, proof of. 271. NEGATIVE not in general required to be proved. 51. unless presumption of law is in favour of affirmative. 52. NEGLIGENCE by attorney, when a defence to action on his bill. 200. See Attorney. in performance of work and labour, when a defence. 225. money paid in consequence of, caimot be recovered. 227. win prevent party paying money on forged instrument from recovering- it. 9S0. NEGLIGENCE— co/jhrmed. variance in statement of cause of action in suit for. 47. negligence of servant, negligence of master. 48. 272. in actions for, servants when competent. 82. in pulling down house, whereby plain- tiff's house is injiucd. 266. in case of negligent driving. 272. master liable for negligence of ser- vant. Id. but not for wilful act. Id. captain liable for seaman. Id. 273. liability of owners of waggons, of stable-keepers, and of st^ge-eoach proprietors. 273. proof of the negligence. Id. breaking down a presumption of imskilfulness or insufficiency. Id. and if overloaded, conclusive evidence. 274. for injury merely accidental no action lies. Id. rule of the road. Id. degree of skill and judgment which a servant ought to possess. Id. negligence of driver in not inform- ing passengers of danger. Id. competenQy of servants as witnes- ses. 275. in case of damage by animals. Id. owner of ferocious animal liable for damage done by it. Id. so of dog, &c. accustomed to bite, with knowledge of its being accus- tomed. Id. evidence to prove knowledge. Id. where savage dog is kept for the pro- tection of premises. 276. in not inclosing cellars, &c. Id. landlord superintending repairs. Id. person employing bricklayer to make sewer. Id. occupier of house neglecting to rail in area. Id. where damage is done by sub-con- tractor. Id. liability of inkeeper. 277. resembles that of carrier. Id. where waived by act of other party. Id. defence in action for. Id. accident. Id. want of caution or skill in plaintiff. Id. of carriers, effect of, in action against them. 281. personal negligence ofj takes the case out of stat. 1 Wil. IV. c. 68. 284. of ship's crew, no breach of warranty of sea- worthiness. 181. Indi ex. 571 NEGLIGENCE— confinueff. loss by perils of the seas, remotely occasioned by, is within the poli- cy. 183. of ship-owner may prevent act of barra- try from coming within the policy. 185. of owner of lost or stolen bank-note, &c. when it will prevent him from recov- ering. 400. NEGOTIATION of bUI, what amomits to, so as to make alteration fatal. 126. NEUTRALITY evidence to prove or disprove. 103. 181. NEW ASSIGNMENT effect of, as an admission on record. 34. where necessary m trespass for assault and battery on plea of son assault demesne. 369. effect of, in preventing the plaintiff from giving evidence of two trespasses. 370. where defendant justifies in trespass in defence of possession, new assignment of excess. 371. where it is necessary to new assign on plea of liberum tenementum. 386. where it is necessary to new assign in general on plea of justification. 387. where necessary on plea of right of way in trespass q. c. f 388. plaintiff may both reply and new assign. Id. 332- where necessary on plea of right of com- mon in trespass q. c. f 389. where necessary on plea of license in trespass q. c. f. 390. evidence under in trespass q. c. f 381. waives and abandons the trespass jus- tified. Id. where there are two trespasses and one count and a justification. Id. in what cases the plaintiff may botli reply and new assign. 392. where defendant justifies and plaintiff relies on matter making him a tres- passer ab initio, he must new as- sign. Id. NEWSPAPER insertion of advertisement in, when suf- ficient notice. 280. delivery of, to officer at stamp office, proof of pubhcation of libel in. 286. proof of publication of libel contained in newspapers, Stat. 33Geo. lll.c.78, 287. shares in, are within 6 Geo. IV. c. 16, s. 72. as to reputed owniership. 438. NIL DEBET what must be proved under, wlien plead- ed to debt on bail bond. 317. evidence under in debt for rent. 318. eyidcnce under in debt for penalties. 323. in action against sheriff for escape. 494. NIL HABUIT in TENEMENTIS bad plea in replevin. 356. NISI PRIUS record, when evidence and of what. 56. record, when evidence of commence- ment of action. 199. amendment by leaving out profert, judge will not allow. 310. NOMINAL DAMAGES an assmnpsit on account stated. 235, 236. on plea in abatement. 237. NON ACCESS declarations of mother to prove, inadmis- sible. 20. 345. NON CEPIT evidence under plea of in replevin. 354. NON DEMISIT evidence on plea in bar of, in replevin. 355. See Replevin. NON EST FACTUM when variance may be taken advantage of under. 49. evidence under in action of covenant. SiO. if profeti made, deed must be pro- duced and secondary evidence inadmissible. Id. lost deed, so pleaded, if found be- fore trial may be given in evi- dence. Id. that defendant was lunatic. 311. or intoxicated. Id. or feme covert. Id. or blind and deed falsely read. Id. or deed deUvered as an escrow. Id. or escrow. Id. or razure. Id. but infancy or duress must be spe- cially pleaded. Id. so deed void by statute. Id. so illegality of consideration. Id. evidence imder, in action on bail bond. 317. See Addenda. 516. that defendant was misled as to legal ef- fect of bond not evidence under non est factum. 516. NON JOINDER evidence on plea of. 237. See Abate- ment. of plaintiff or defendant, effect of as a va- riance. 42. See Parties. of tenant in common of land as defend- ant in tort, 47. of carriers, cannot be pleaded. 284. of executor as plaintiff. 465. of hundredors as defendant?. 504. of dormant partner. 238. 516. NON PROS whether evidence to support action for malicious arrest. 306. NON SUIT not proved by rule to discontinue. 305. 572 Index. NON TENUIT evidence on pica in bar of, in replevin 355. See Replevin. NOTICE to produce a notice unnecessary. 162. of motion for putting oli" trial on absence of witness. 77. of disputing consideration of bill of ex- change. 167. Sec Consideration. of abandonment. 188. Sec Abandonment. of act of bankruptcy. 446. of action, to officers of custom or excise. 460. of action, to justices. 475, 476. of landlord's claim to year's rent under Stat. 8 Ann c. 14. 48J. of award need not be proved. 136. to produce tlic bill delivered not necessa- ry in action on attorney's bill. 199. of wife having separate maintenance, ■what shall be proof of. 214. to take back goods which do not corres- pond with contract. 220. of set-off. 250, 251. See Set-off. to remove nuisance. 267- *" by carrier restricting liis liability. 279, 280, 281. taken away by stat. 1 Wil. IV. c. 68. 283. of increased charge under stat. 1 Wil. IV. c. 68. Id. of distress, landlord not bound by. 310. of disputing bankruptcy. 413, 414. See Assignees of Bankrupts, and see Ad- denda. 518. NOTICE of DISHONOUR of BILL form of. 159. need not be in writing. Id. by whom given. 160. by any party to the bill. Id. to whom to be given. Id. to drawer though bankrupt. 160. to executor. Id. to one of several partners. Id. where drawer is abroad. Id. in case of substituted bill. Id. to attorney insufficient. Id. time within wliieh notice must be eiven. 161. ^ where party resides in aiiotlier town. Id. where in same town. Id. in case of bill due on Christmas- day, &c. on next day. Id. where biU is in hands of holder's banker. Id, notice good on day of bill being due. Id. proof of delivery of notice. Id. by post sufficient. Id. how directed. Id. 162. by private conveyance. Id. by leaving at dwelling-house. Id. proof of contents of Id. NOTICEof DISHONOUR of BILL-con'tf- notice to produce original not necessa- ry. Id. unless in case of letter not the subject of the suit. Id. 183. protest. 163. necessary in case of foreign bill. Id. inoperative in case of inland bill. Id. proof of. Id. not evidence of presentment of for- eign bill here. Id. when excused. 103. where no effects in hands of drawee. Id. exceptions to this rule. 164. bill made payable at drawer's primd facie evidence if no effects, by acknowledgment of liability. 164. by bankrupt after bankruptcy. Id. must be with notice of default. 165. whole acknowledgment to be taken together. Id. sufficient excuse that drawer said ho had no regular residence but would call. Id. destruction of bill no excuse. Id. by ignorance of drawer's residence. 165. what attorney is sufficient. Id. attorney employed to inquire has additional day to give notice. Id. common averment of notice suffi- cient. Id. in case of fictitious bill. 166. NOTICE to QUIT if attested witness must be called. 64. when necessary to be proved in action for double value. 320. and in action for double rent. 321. how proved. 333. by duplicate or examined copy. Id. at what time it must be given. Id. half year before end of current year. Id. or from feast day to feast day. Id. special agreement or custom may con- trol period. Id. where tenancy is for less than a year. Id. notice must expire at expiration of year. Id. entry primd facie commencement of tenancy. Id. where tenant enters in middle of quarter. 334. where tenant holds over, notice must be given with reference to original lease. Id. so where he holds under terms of lease void by statute of frauds. Id. where tenant enters on different parts of premises at different times. Id. Index. 573 NOTICE to QXilT— continued. meaning of holding " from Michael- mas." Id. 335. presumption tliat terms of tenancy are the same as others in the coun- try. 334. evidence of intention of parties as to period, admissible. Id. notice not personally served is not prima facie evidence of commence- ment of tenancy. 335. alitcr, if personally served. Id. tenant precluded from disputing his own statement of commencement of tenancy. Id. receipt for year's rent up to particular day presumptive evidence of com- mencement. Id. by whom to be given. Id. by one of several jointenants good for his share. Id. Sec Addenda. 517. by agent of several jointenants. Id. by one of several partners in name of all, good. 336. by one of several executors under spe- cial pro\4so. Id, by receiver good. Id. by steward of corporation. Id. by devisee under special proviso. Id. to whom. 336. in case of underlease. Id. party in possession may be presumed to be assignee of lessee, and notice to him good. Id. to corporation served on its officers. Id. form of. 336. may be by parol. Id. must be positive. 337. and not give tenant option to remain. Id. nor an alternative day to quit. Id. in case of obvious mistake notice good. Id. . must include all the premises. Id. need not be directed to tenant in pos- session. Id. if directed by wrong christian name and he keeps it, good. Id. by rector and churchwardens. Id. service of. 337. on servant at dwelling house of tenant sufficient. Id. thougli tenant be not informed till within half year. 338. not sufficient that it was left at house without showing delive- ry to servant, &c. Id. to one of two jointenants good for both. Id. in oase of subtenancy, on lessee. Id. on officers of corporation. Id. waiver of. 338. NOTICE to (^mi— continued. by acceptance of rent after expiration of notice. Id. not when received by lessor's banker without his knowledge. Id. by distress for rent accruing after ex- piration of notice. Id. by recovery in use and occupation for period after expiration of notice. Id. by subsequent notice recognising ten- ancy. Id. unless lessor is proceeding in ejectment on first notice. Id. or miless second notice only re- quires payment of "double value." Id. where no notice is necessary, notice wiU be considered only as a demand of possession. Id. promise not to turn tenant out till premises are sold, no waiver of no- tice. 33.9. when dispensed with. Id. on disclaimer by tenant. Id. reftisal to pay to devisee under con- tested will no disclaimer. Id. mere pajTuent of rent to third per- son no forfeiture. Id. NOTICE to PRODUCE when necessary to be given. 4. 162. when instrument is in possession of opposite party. 4. unless from nature of proceeding he knows he is to be charged with possession. Id. or unless he has procured it by fraud. Id. not necessary before reading counterpart of deed. 2. 4. nor in case of ship's articles. 4. nor in case of a notice. Id. necesssary though the instrmnent be in court in hands of other part}'. 4, 5. proof of possession of original. 5. what degree of evidence necessary. Id. in case of loss of bankrupt's certifi- cate. Id. in case of instrument in hands of of privy. Id. as captain and owner. Id. sheriff and under-sheriff. Id. customer and banker. Id. defendant and party justifying under liiin. Id. form of. 5. by parol sufficient. Id. should sj)ecify the document. Id. to produce "all letters" insufficient. Id. bad, if title of cause misdescribed. Id. service of, on whom. 6. on attorney or ag« nt sufficient. Id. 574 Index. NOTICE to PRODUCE— coHti/merf. but to produce papers not connected with the cause, too late for part}' to receive it before trial, insufll- cicnt. Id. service of, time of. 6. wliat is a reasonable time. Id. effect of 6. only entitles tlic party to give se- condary evidence. Id. entitles the party to give such evi- dence, if person served has de- livered the document over, but did not say so. Id. does not entitle the opposite party to treat the documents as evi- dence, if not used by the party callinor for them. Id. unless suspected. Id. cross-examination as to contents of, documents produced under. Id. what is sufficient secondary evidence. G. See Secondary Evidence. admission of acceptance of bill by. 153. NUISANCE evidence for plaintiff, in action for. 265. plaintiff's title. Id. possession sufficient. Id. presumptive proof of title. Id. parol license not sufficient to trans- fer easement. Id. in action for disturbing pew, not necessary to prove repairs. Id. except as against ordinary. Id. reversioner, as well as tenant, may sue for injury to reversion. Id. tenant in such action compe- tent witness for plaintiff 266. where tenant holds under writ- ten agreement, whether it must be produced. Id. what amoimts to a nuisance. 266. proof that the nuisance was occa- sioned by defendant. Id. liability of alienee. Id. of landlord employing work- men. Id. of clerk of works. Id. of occupier, for not repairing fences. Id. of commissioners of sewers, trustees of roads, (Sec. 268. Defence. 268. license. Id. abandonment of right. Id. statute of limitations. Id. NUL TIEL RECORD mode of proof on, issue of. 5.3. See Re- eord. O. OATH required by Toleration Act, cannot be proved by parol. 2. mode of administering to witness. 78. of secrecy, taken by clerk of income tax, does not privilege him from dis- closure. 91. OBJECT OF EVIDENCE general rules. 35. See Issue. OCCUPIER deceased, declarations of, admissible to prove seisin. 24. of land, when liable to repair fences. 267. OFFICE action against hundred for demolition of 499. OFFICE COPY. See Copy. OLD BOOKS in Herald's Office, proof of pedigree. 113. OLD COMMISSION proof of, excused. 56. 58. OLD COPIES of surveys, admissible. 108. OLD COURT ROLLS proof of, above 30 years old. 59. when admissible. 110. old writings not properly rolls. Id. OLD DEED secondary evidence of 7. usage admissible to explain. 11. when, and for what purposes admissible. 22, 23. handwriting to, may be proved by com- parison. 69. custody of, must be proved. 70. 72. above 30 years old, execution dispensed with. Id. OLD EXTENT regularity of, presumed. 56. OLD PERSONS declarations of 21. See Hearsay. OLD RECORD when lost may be proved by old copy, without proof of its being examined. 55. OLD WILL proof of 74. OPINION collateral facts, evidence on question of. 36. of witness, when admissible on questions of skill and judgment. 98. 178. 188. 515. See Witness. ORDER for goods, does not require a stamp. 121. for payment of money out of a particular fund, how stamped. 124. ORDERING WITNESS out of COURT practise as to. 93. See Witness. OUSTER IN EJECTMENT confessed by consent, rule. 328. special rule in action by joint-tenant, parcener, &c. 329. Index. 575 OUSTER IN EJECTMENT— contrnweti., PARLIAMENT— coretinuet/. actual ouster must be proved by joint- tenant, &c. Id. evidence of actual ouster. Id. OUSTER IN QUO WARRANTO judgment of, admissible against third person. 100. OUTHOUSE action against hundred for demolition of. 499. outlaWy for treason or felony, renders witness incompetent. 79. aliter in civil suit. Id. OUTSTANDING JUDGMENTS AND DEBTS evidence on plea of. 470. OVERSEER entitled to demand of copy of warrant. 456. OWNERSHIP of vessel, proved by admission in under- taking to appear. 30. acts of, in different parts of same district when admissible. 36, 37. OYER effect of setting out deed on, and plead- ing non estfactu7n. 49. PARCEL OR NO PARCEL parol evidence admissible on questions of, in deeds, &c. 13. PARDON effect of, in restoring the competency of infamous witness. 79, 80. See Wit- ness. PAGODAS money lent, lies on loan of 45. PARISH boundaries of, proved by reputation. 21. parochial modus, proved by reputation. Id. ancient papers relating to boundaries of, proper repository of. 72. indentures, entries of, secondary evi- dence. 113. variance in statement of, in action for use and occupation. 145. in ejectment. .329. in trespass q. c. f 383. PARISHIONERS declarations of, admissible on question of parish boundary. 21. or parochial modus. Id, PARLIAMENT proceedings of, noticed judicially. 40. acts of, how proved. 53. private act by examined copy. Id. though it contain clause that it shall be deemed a public act. Id. printed acts of U. K. evidence in Ireland, and of Ireland evidence in U. K. Id. effect of preamble of act of parliament. 111. journals of, when evidence of facts there- in stated. Id. PAROL EVIDENCE when primary, or secondary to written evidence. 1. notice to produce before admission of, when necessary. 2, 3. See Notice to produce. inferior to written evidence. 8. as agreements reduced to writing. Id. but not unsigned memorandum. Id. to exclude parol evidence, it must ap- pear that writing relates to matter in question. Id. 9. inadmissible to vary or contradict a writ- ing. 9. to add to a promise in writing. Id. to vary the terms of a note. Id. to add a warranty on sale. Id. to vary time of delivery of goods. Id. aliter in case of subsequent parol agreement. Id. admissible to show that the contract was made by one party as agent. Id. collateral parol contract admissible. Id. admissible to prove additional conside- ration, to vary date. Id. where no consideration mentioned in a deed, it may be proved by parol. Id. so another consideration not con- trary to deed. 9, 10. so addition to same consideration. 10. to prove deed delivered on different day than date. Id. admissible to prove fraud in written in- strument. 10. in consideration of deed. Id. to set aside will. Id. party charged with fraud cannot prove any consideration but that stated. Id. admissible to prove custom, not express- ed in written instrument. Id. as usage of trade, in mercantile con- tracts. Id. warranty to depart with con- voy. Id. bill of lading. Id. merchant's accounts. Id. but not admissible where the words are unequivocal. Id. 11. admissible to explain ancient charters, grants, &c. 11. usage always admissible. Id. no distinction between charters and private deeds. Id. not admissible where the words art clear. Id. 576 Indt ex. PAROL EVIDENCE— c»«/t«ue(/. nor to ex[)l;un modern deeds. Id. admissible to discharge written agree- ment. 11. subsequent parol agreement may discharge prior written one be- fore breach. 11. but not after breacli. 11, 12. admissible to explain patent ambiguity. 13. two persons of same name. Id. mistake of name in will. /(/. " second son" for third son. Id. fme of " twelve messuages in C," where cognizor had more. Id. not admissible wliere subject matter ex- ists which will satisfy the terms of will, &c. Id. not admissible to explain patent ambi- guity. 11. blank for devisee's name. Id. aliter blank for Christian name. 13. and in devise " to Mrs. C." Id. semlle admissible to supply blank in in- strument, which need not have been in writing. Id. admissible to supply blank for patron's name in bishop's register. Id. admissible on questions of parcel or no parcel. 13. admissible to prove a certain relation be- tween parties. Id. as landlord and tenant. /(/. but party wishing to vary the re- lation as thus proved, must pro- duce the writing. Id. as a partnership. Id. admissible to prove payment, though re- ceipt has been given. 27. PARSON evidence in ejectment by. 350. cannot have trespass quare clausum /re- git before induction. 380. but induction as to part, is induction as to tlie whole. Id. PARTICULAR PARTNERSHIP effect of. 212. See Partner. PARTICULARS of DEMAND plaintiff bound by. 38. where it need not be given as to some coimts, omission of those causes of ac- tion immaterial. Id. aemhle plaintiff may recover extra his particulars, if defendant furnish the evidence. 39. admissible for the defendant to prove payments for which credit is given. Id. omission in bill delivered before action brought, immaterial. Id. mistake in, not calculated to mislead, immaterial. Id. aecond particular not delivered under judge's order inoperative. 40. PARTICULARS of DEMAND— cont'd. how proved. Id. when given in evidence by defendants to prove payments, entitle plaintiff to re- ply. 133. variance in, in ejectment on stat. 4 Geo. II. 340. particulars of breaches in ejectment on forfeiture. 340, 341. PARTICULARS of DEFECTIVE TI- TLE in action by vendee v. vendor. 140. PARTIES non-joinder of person as plaintiff in ac- tion ex contractu, a variance. 42. aliter as defendant. Id. omission to mention survivorship of plain- tiff a variance. Id. aliter survivorship of defendant. Id. in action on contract by one partner for the firm, that one, or all, may sue. 43. in description of joint and several bond. Id. non-joinder of secret partner cannot be pleaded in abatement. See Abate- ment. in tort, non-joinder of plaintiff subject of plea in abatement only. 47. non -joinder of defendant immateri- al. Id. unless in case of tenant in common of land. Id. to suit when competent as witnesses. 86. And see Addenda, p. 515. PARTNERS admissions by. 31. evidence against co-partner. Id. 153. though no party to suit. 31. though made after dissolution, as to former transaction. Id. not admissible against joint-owner of ship. Id. where really interested, actions by, may be brought in names of all, though contract made by one. 43. or in the name of that one. Id. incompetent witness for co-partner in action against him. 89. aliter for plaintiff. Id. See Wit. ness. answer in Chancery of one partner evi- dence against his co-partner. 1 06. where one can bind another by accept- ing bills. 152. indorsement of bills by. 155. notice of dishonour of bill to. 160. satisfaction as to one, satisfaction to alL 170. in action against acceptor of bill, one of several partners (drawers) competent to prove want of authority in partner actually drawing. 172. liabiUty of persons as. 212. dormant partner liable. Id. Index. 577 TARTSER^— continued. partnership how proved. Id. by parol, though there be a deed. Id. by answer in Chancery. Id. by suffering name to be used. Id. thougli no profits received. Id. distinction between general part- ners, and in a particular con- cern. Id. where stipulation that party shall receive no profit is known to contractor, the party not liable. Id. must be shown that name was used with party's consent. Id. by participation in profits. 213. iimnaterial to what use the profits received, as by a trustee or exec- utor. Id. where several carry on business in name of one. Id. proportion of profits immaterial. Id. knowledge that the party shared pro- fits immaterial. Id. profits must be taken as such Id. distinction between participation and payment according to amount of profits. Id. dormant partner after dissolution not liable to parties who were ignorant of his having been a partner. 214. cannot maintain money had and receiv- ed on division of profits. 233. may recover on account stated after dis- solution of partnership. 236. evidence of partnership on plea of non» joinder. 237, 238. set-off" in cases of partnership. 253. tender to one of several partners good. 262. of his own and partnership debt. 263. notice to quit, by one for all, good. 336. PARTNERSHIP. See Partners. may be proved by parol, though there be a deed. 1, 2. 13. notice of dissolution, evidence of dissolu- tion, though partnership be by deed. 26. advertisement of in Gazette. 280. when it must be proved, by plaintiff su- ing on bill. 156. PATENT AMBIGUITY cannot be explained by parol evidence. 12. S(!e Parol Evidence. PAWNBROKER wrongfiil sale of goods to, in London, does not alter the property. 3.07. rcfiisaJ by servant of, to deliver goods, a conversion by master. 406. a trader within 6 Geo. IV. c. 16. s. 6. 422. 73 [PAYEE J of note, declarations of inadmissible in action by indorsee against maker. 26. mistake in name of. 45. of accommodation note, competent to prove indorsement to plaintiff. 84. PAYMENT may be given in evidence, under non ai- sumpsit. 247. imless alter writ issued. Id. to whom and how. 247. to agent or attorney good. Id. aliter to attorney's agent. Id, to person appearing to be clerk. Id. by post, good. 248. aliter delivery to bellman. Id. by attorney, though not repaid, good. Id. application of payments. 248. prima facie, creditor may appropriate. Id. even at subsequent time. Id. and to prior demand. Id. where the law will make applica- tion. Id. in case of sun-iving partner- ship. Id. in case of partnership and individual debts. 249. in case of payments on ona entire accomit. Id. in case of sureties. Id. in case of illegal debt. Id. by bill or note. not payment unless it be honoured. 24t>. unless party agree to run t'ae risk. /(/. if party receives order for cash, and takes bill, he runs the risk. Id. otherwise if he takes check fi-om purchaser's agent. Id. prima facie evidence of payment. 250. onus of showing dishonour lies on plaintiff".. Id. eff"ect of taking an order for " a good biU." Id. or " without recourse to buyer in caea of non-payment." Id. eff"ect of losing a bill taken in pay- ment." Id. where payment of interest will take caac out of statute of limitations. 255. 257. to superior landlord or mortgagee, when evidence under plea of rieiw in ar- rear in replevin. 356. payments to and by bankrupts when val- id. 445. 446. to executor under forged will, good. 465. aliter where supposed testator i» liv. ing. Id. 578 Index, PAYEE— conU/iwrt/. by executor de son tort wiicn recouped in damages. 4G5. PAYMENT ot MONEY into COURT admission ot" legal demand to tiiat extent. 31. on count for total loss, no adinission that loss is total. Id. admits special contract. 32. on indehiialus counts. Jd. conclusive admission of character in which plaintiiT sues. Id. and of right to sue in that court. Id. admits handwriting and stamp. 32. admits signing according to statute of frauds in action on guarantee. Id. admits contract when two breaches in one count. Id. admits contract where tort is waived. Id. where it admits the price of goods. Id. on one of several counts. Id. in case of restricted liability of carrier. Id. does not take the case out of the statute, when statute of limitations is pleaded. 32, 33. will not give validity to illegal contract. 33. where plaintiff misleads defendant as to defence, will not be allowed to exclude such defence. Id. proved by production of rule of court. Id. PEDIGREE hearsay evidence to prove, when. 19. See Hearsay. hung up in family mansion, evidence. In. proved by herald's books. 113. PENALTY for not signing receipt when tendered by debtor. 265. evidence in action of debt for penalties. 321. where contract stated must be pro- ved as laid. 322. plaintiff not bound to prove want of qualification in defendant. Id. proof of commencement of ac- tion. 322. production of writ. Id. return need not be shown. Id. unless in case of an alias. Id. irregular commencement and continuances supplied. Id. at what period of the cause proof of ccmniencement of suit may be given. Id. venue. 323. local, 31 Eliz. c. 15. Id. defence under nil debet, exemption in same or other evidence. 323. PENALTY— conttHMfirf. former recovery must be plea- ded. Id. PERILS of the SEAS proof of loss of ship by 182. See Loss. PER.IURY conviction for, renders witness incompe- tent. 78. king cannot restore competency by ])ardon. 80. PETITIONING CREDITOR when a competent witness in actions by assignees. 452. declarations of, when admissible. Id. PETITIONING CREDITOR'S DEBT nature of, and when accrued. 416. proved in same manner as in action against bankrupt. Id. must appear to have been contracted at time of act of bankruptcy. Id. cases as to promissory notes and bills. Id. continuance of debt presumed. Id, must have been subsisting while bank- rupt a trader. Id. taking security of higher nature after act of bankruptcy immaterial. 417. so that trader has become insolvent. Id. debt on attorney's bill, not signed, suffi- cient. Id. verdict for damages in tort not sufficient. Id. where debtor taken in execution no good debt. Id. debt barred by statute of limitations suf- ficient. Id. • debt due to two partners, both must peti- tion. Id. where the petitioning creditor is assignee of anotlier bankrupt. Id. amount of". 417. 100/. in notes bought at 10s. a piece suf- ficient. Id. admissions of bankrupt in proof of 418- admissible if made before the bank- ruptcy. Id. aliier if made after. Id. but admission that bill would not be paid, made after bankruptcy, dispenses with notice. Id. bills of exchange and debts due on cre- dit. 418. bill a debt from the date, as against drawer. Id. though not indorsed to creditor till after bankruptcy. Id. good debt lliough afterwards paid by acceptor. Id. exchange of acceptances not good debt. 419. interest, where it can be added to make up the amount. Id. rebate of interest not to be con- sidered. Id. Index. 579 PETITIONING CREDITOR'S DEBT— — continued. debts due on credit good, 6 Geo. IV. c. 16, s. 15. 418.. prior act of bankruptcy does not render commission invalid. 419. PEW presumptive evidence of right to. 16. See Presumption. vestry book evidence of repairs done to. 113. in action for disturbance of, when neces- sary to prove repairs. 265. PHYSICIAN can maintain no action for his fees. 203. not privileged from disclosing confiden- tial communications. 91. opinion of, admissible on question of judgment. 98. proof of being. 292. fees of, cannot be recovered in trespass for seduction, unless they have been paid. 367. PLACE variance in statement of. 51. where matter of description, material. Id. imless it can be ascribed to venue. Id. in action for excessive distress. 308. in statement of parish in ejectment 329. in statement of parish in trespass q. e. f. 383. PLENE ADMINISTRAVIT evidence on plea of. 467, 468. See Ex- ecutor. POLICY OF INSURANCE. See Insur- ance. POOL BOOK copy of, evidence. 61. POSSESSION evidence of seisin of land, and property in chattels. 15,16.343. sufficient title in action for nuisance. 265. evidence of title to ship or goods. 178. prima facie, sufficient to charge party as assignee of a term. 312. a sufficient title, in ejectment against a ■wrong doer. 324. party lawfully in possession, cannot be ejected without previous demand. 322. evidence under justification in defence of, in trespass for assault. 371. what is a sufficient possession in trespass to personal property. 377. what is a sufficient possession to support trespass, quarc clausum fregit. 378. See Trespass. proof of defendant's possession in tres- pass, for mesne profits. 3.93. when the purchaser of goods is entitled to the possession of them. 395. Sec Trover. POSSESSION— coniinucJ. where trover may be maintained, with- out actual possession. 400. any possession sufficient to maintain tro- ver against a wrong doer. 401. proof of right of possession, in trover. Id. of goods necessary to lien. 411. what is a sufficient possession of goods by a bankrupt to bring a case within 6 Geo. IV. c. 16, s. 72, as to reputed ownership. 439. of goods assigned, when a badge of fraud. 485. POST DATED BILLS, &,c. check unstamped, bad. 123. money paid under, recoverable. Id. POST-OFFICE marks of, how proved. 61. evidence that the letters were in the post. 114. agreement sent by post, exempt from staiiip duties, when. 121. notice of dishonour of bill by post. 161, 162. transmission of money by post, good. 248. proof of putting letter into, is proof of pubUcation in that county. 287. POSTEA when evidence of, verdict. 56. POSTHUMOUS SON demise by, in ejectment. 324. POWER proof of execution of. 75. terms must be strictly pursued. Id. defective attestation cannot be suppli- ed by parol. Id. 76. under a statute. 67. omission in attestation cured by stat. 54 Geo. III. c. 168. 76. POWER of ATTORNEY must be by deed, to authorise the execu- tion of a deed. 68. conveyance executed under, may be re- fused. 139. when necessary to be produced in prov- ing agency. 177, 178. PRESCRIPTION private, whether it can be proved by evi- dence of reputation. 21. proved by old entries on court roUs. 23. variance in statement of. 46. must be proved as ample as laid. Id. proof of, larger than laid, no variance. Id. in case for disturbance plaintiff need not prove a right co-extensive with his declaration. Id. evidence of prescriptive right of way. 271. PRESENTATION proof of, in ejectment by parson. 350. PRESENTMENT of BILLS variance in statement of 150. 5S0 Indi ex. PRESENTMENT of BILLS— coniinued. when necessary. 157. within what time. 158. at certaindate,onlastday of grace. Id. at or after sight, in reasonable time. Id. distinction between bankers' and other bills after sight. Id. of bills due on Sunday, Cliristmns-day, Good Friday, or fast-daj', on day pre- ceding. Id. must be made, though acceptor .bank- rupt. Id. in case of death, to personal representa- tive. Id. to agent, drawee abroad. Id. at banker's, within banking hours. Id. at a merchant's, within what hours. Id. at a particular place, where bill made payable there. 159. proof of, when dispensed with. Id. by payment of part, or promise to pay. Id. by unavoidable accident. Id. not by knowledge of drawer that bill will be dishonoured. Id. protest not evidence of presentment of foreign bill in this country. 163. when necessary to be proved in action against maker of note. 175. circumstances in excuse not evidence under common averment of present- ment. Id. PRESUMPTION of loss of instriunent 4. of reasonable time. 9. See Reasonable- ness. of seisin, in case of ancient recovery. 14, of due execution of deed after 30 years, Id. of endowment of vicarage. Id. of license by lord of manor. Id. of immemorial custom. Id. of public navigable river. Id. presumption of payment receipt for rent a presumption of for- mer rent paid. 14. acceptance after due, in hands of ac- ceptor. Id. of payment of wages where custom to pay weekly. Id. of payment by agent, where custom to account daily. Id. 15. of accounting by factor, after a rea- sonable time. 15. ot promissory note ; rule as to bonds not applicable to notes. Id. of check, indorsed by plaintiff and paid. Id. quart whether proof of payment by drawer. Id. ef bond within 20 years. 15. 316. and lesi, if rircumstances concur 15. PRESUMPTION— coiiiinjierf. rebutted by admission or interest paid. Id. or .by proof of residence abroad. Id. but not by proof of poverty. Id. indorsements by obligee, of receipt of interest within 20 years ad- missible to rebut. Id. but must be shown to liave existed before presumption arose. Id. presumption of property. Id. of seisin in fee, by possession or re- receipt of rent. Id. of right to minerals by owner of fee. Id. rebutted by want of enjoyment, or user by otJiers. Id. of quit-rent to lord of manor. Id. 16. of mine, not afforded by recovery in trover for lead dug out of 16. of personal chattels, by posession. Id. prefnimption of grants, &c. Id. . of lights, by adverse 'enjoyment for 20 years. Id. of right of way within 20 years. Id. though there has been a previous extinguishment. Id. by way of lost deed. Id, of right to pew by prescription. Id. of right to stream of water by posses- sion for 20 years. Id. or less if circumstances concur. Id. of easement of landing-nets. Id. acquiescence of owner of inheritance must appear. 17. tenant for life or years cannot make such grant. Id. of charters and grants from the crown. Id. rule as to presuming a conveyance. Id. of surrender, not afforded by possession of lease with seals cut off. Id. of livery of seisin after 20 years. Id. presumption of dedication of way to the public. Id. 271. depends on time and nature of the enjoyment. Id. 17. must be made openly and delibe- rately. Id. may be a limited dedication. 18. what time evidence of dedication. Id. tenant cannot bind landlord by de- dication. Id. unless assent of landlord can be presumed. Id. as against the crown. Id. presumption of duration of life. Id. deatli presumed after seven years. Id. presumption of death without issue. Id. Index. 581 PRESUMPTION— continued. presumption of death of person in missing ship. 18. presumption of legahty or regularity Ql acts. 19. ofa tlieatrical license. Id. of takiiig the sacrament. Id. of due appoiutmeut of official person. Id. of regularity in course of public office. Id. presumption of knowledge. Id. presumption of law in i'avour of affirm- ative of issue, onus of proof. 52. of commission, in case of old inquisi- tions. 56. of regularity of old extent. 56, 57. of sealing and dehvery of deed. 67. of regular attestation of will. 74. of instrument being properly stamped. 116. of effects in hands of acceptor. 157. 164. of money lent by indorsee to indorser. 167. of bill being satisfied, does not arise in 20 years. 170. of ownership of ship not raised by certi- ficate of registry. 178. of inception of risk, in actions on poli- cies. 179. of sea/- worthiness of ship. 181. of license to legalize voyage. 182. of loss of missing ship. 183. adjustment of policy only prima facie evidence. 187. of promise of marriage. 194. of liability of husband lor goods delivered to wife. 214, 215. See Wife. of value of goods, where it is not proved. 219. of liability of registered owner of ship for repairs. 223. payment of money presumed to be pay- ment of debt. 227. of gift, where money is advanced by pa- rent to child. 'Id. of payment by bills or notes. 250. of negligence in stage-coach proprietors. 273. of being assignee ofa term. 312. of conveyance of legal estate by trustees. 326. where conveyance is directed. Id. in cases of satisfied terms. Id. facts rebutting such presumption. 327. party setting up presumption must show title good in sub- stance. 328. of ouster of one tenant in common by his co-tenant. 329. of demise from year to year. 330. of commencement of tenancy. 333, 334. of sexual intcrcoifrsc. 344. PRESUMPTION— continuerf. of ownership of highways, wastes, rivers, ditches, walls, &,c. 381 . of continuance of debt. 416. of assets, on plea of plene administravit. 468. PRIMARY EVIDENCE rule that best evidence must be given. 1. as ill case ofa will, tlie will itself Id. in case of an agreement in writing, the writing. Id. but not the mere narrative of a fact reduced to writing. Id. nor will a receipt exclude parol evidence. Id. nor the serving a demand in writ- ing. Id. nor where the fact of a certain relation is to be proved, as of landlord and tenant. Id. or of a partnership. Id. marriage register not only evidence of marriage. 2. judicial proceedings, or copies of them, primary evidence. Id. coimterpart of deed not secondary evi- dence. Id. party to, not permitted to object to stamp of original. Id. PRINCIPAL, ^ee Agent. PRINTER when he has a general lien. 408. PRISON act of bankruptcy by lying in. 433. See Act of Bankruptcy. PRISONER assignment of, by former sheriff. 493. PRIVILEGE of counsel and attornies in not disclosing matters. 91. See Witness. of witness, in not answering questions tending to expose him to punishment, forfeiture, &,c. 97. See Witness. of persons using defamatory words in the course of legal proceeding. 295. in confidence. Id. with the view of investigating facts. PRIVY where document is in hands of, notice to produce to defendant sufficient. 5. See Notice to produce. effect of judgments and verdicts with regard to privies. 100. answer in Chancery evidence ajrainst. 105. PROBABLE CAUSE proof of want of, in action for malicious prosecution. 302. in action for malicious arrest. 306. in action against justice after con- viction quashed. 478. PROBATE proof of .59. 582 lnde:\ PRORATE— co»i/ jnuerf. seal proves itself. 60. if lost, court grants exemplification. Id. revocation of, proved by entry in book of prerogative court. Id. not proof of will of lands. 72. but secondary evidence of. 8. jurisdiction of Ecclesiastical Court in grant of 103. conclusive till repealed. Id. seal may be shown to be forged. Id. 464. or that court had no jurisdiction. 103. 464. payment under probate of forged will good. 103. when void, or voidable only. 464. PROBATE STAMP prima facie evidence of assets. 468. PROCHEIN AMY admissions by, not evidence against in- fant. 29. incompetent witness for infant. 83. PROCLAMATION not judicially noticed without production of Gazette. 40. of fine, not proved by chirograph. 55. evidence of facts recited in it. 111. fine with proclamations, when it requires actual entry in ejectment. 328. See Fine. PROCURATION in drawing bills, &c., mode of stating. 150. of indorser, not admitted by acceptance. 154. PRODUCTION of instruments under spa. due. tec. 64. PROFERT after profert plaintiif cannot show deed destroyed. 310. PROMISE all the actions .need not be stated in ac- tions on contract. 43. but the omission of a qualification is fa- tal. 44. as in omitting an exception. Id. or an alternative. Id. or part of one entire promise. Id. if legal effect the same, the variance im- material. Id. PROMISSORY NOTE cannot be varied by parol evidence. 9. presumptive evidence of payment of. 15. declarations of payee inadmissible in ac- tion by indorsee against maker. 26. improperly stamped, evidence of origi- nal consideration admissible. 116. or for collateral purpose. 117. stamps on. 129. instruments that may be treated either as notes or bills. 151. evidence in actions on. 174. Payee v. maker. the making of the note. 174. PROMISSORY T^CYTE— continued. attesting witness must be called. Id. admission, proof of. Id. offer to give another note, an ad- mission. Id. admission by one party evidence against himself only. Id. presentment only necessary where promise to pay at particular place. Id. circumstances in excuse cannot be given in evidence under usual averment of presentment. Id. note payable at a town may be presented at bankers if maker cannot be found. Id. note payable at two places may be presented at cither. Id. note on demand, demand need not be proved. Id. evidence under common counts. 175. under count for money lent. Id. under counts for consideration. Id. but not if note is lost. Id. indorsee 1). maker. 175. indorsee v. indorser. 176. competency of witnesses in actions on notes, 177. See Witness. where property passes on transfer of lost or stolen notes. 398. interest upon, when recoverable. 234. See Interest of Money. unstamped, cannot be given in evidence as an admission. 236. by one person in the name of several. 238. effect of taking promissory note in pay- ment. 249. See Payment. payable on demand or sight, when the statute of limitation begins to run. 254. proof of existence of, prior to act of bank- ruptcy, when relied on as petitioning creditor's debt. 416. when they may be set off in bankruptcy. 448. PROPERTY in goods, vests on delivery to carrier. 246. when it vests on sale. 395. on manufacture of goods. 396. on gift. 397. on fraudulent or illegal sale. Id. in case of execution. Id. on judgment for damages in trover. 398. in case of executors and administra- tors. Id. by wrong. Id. in case of bank notes, &c. 398, 399. owner of special property may have trover. 4('0. Index. 583 PROPERTY— continued. in some cases without actual pos- session. Id. and even against general owner. 401. PROPOSAL may be retracted before acceptance by other party. 139. 208, 209. does not require a stamp. 121. PROSECUTION proof of, in action, for malicious prosecu- tion. 300. proof of determination of. 301. PROTEST must be proved by person paying bill for honour. 22G. when necessary, and how proved. 163. See Notice of Dishonour. excused by want of effects. Id, of captain of ship not evidence of facts therein stated. 190. but may be used to contradict cap- tain. Id. PROUT PATET averment of, when material. 48. PROVINCIAL NOTES not a good tender, if objected to. 263. PROVISO omission of, when a variance. 49. PUBLIC BOOKS entries in, by deceased persons, when ad- missible. 24. See Hearsay. journals of parliament, how proved. 53. minute book of sessions. 54. day-book at judgment office. 55. proof of entries in. 61. what books are admissible. Id. examined copies sufficient. Id. of corporation. 61. See Corporation. eifect of oublic books and documents in evidence. 112, 113, 114. PUBLICATION proof of, in actions for libel. 286. PUFFING at auctions, fraudulent. 138. 242. Q. QUACK cannot recover his demand. 203. QUAKERS evidence of, admissible on affirmation. 78. marriage of, how proved. 360. QUANTUM MERUIT where pltiintiff may recover on, in case of special contract. 221. QUIET ENJOYMENT proof of breach of covenant for. 315. QUIT RENT presumption of. 15, 16. R. RASURE of old deed, attesting witness must be called. 70. RA%\5R^^— continued. attorney not privileged from proving, in deed of client. 92. RATE BOOK effect of, in evidence. 113. RATIFICATION of memorandum within the stat. of frauds signed by stranger, good. 206. READY and WILLING proof of averment of. 209. REASONABLENESS of time, afforded by notice to produce. 6. reasonable time presumed when none mentioned in contract. 9. after lapse of reasonable time, factor pre- sumed to have accounted. 15. " reasonable reward" supported by evi- dence of a specific sum. 43. aliter of " reasonable time." 44. of time of presentment of bill, whether a question for court or jury. 158. proof on count to marry in a reasonable time. 194. of attorney's charges must be proved, where items are not taxable. 196. but cannot be entered into at trial where there are taxable items. 200. of time, where goods are delivered on sale or return. 211. of price of goods sold cannot be question- ed where bill of excliange has been given. 220. RECEIPT may be proved by parol, though given in writing. 1. 27. or an improper stamp. 116. when conclusive, and eifect of, in gene- ral. 26, 27. See Admissions. in full of all demands, effect of. 26. more than 30 years old proves itself. 70. custody of. 72. how stamped. 130. distinction between receipts and ac- knowledgments. Id. 131. not inadmissible for noticing the con- sideration. 131. for not containing an agreement, un- less it qualify the receipt. Id. receipts on bond exempt. Id. by agent of money received for principal when evidence against former. 228. on bill, priind facie evidence of payment by acceptor. 157. demand of, vitiates tender. 264. by carrier for increuscd charge, under stat. 1 Will. IV. c. 68, requires no stamp. 283. warranty of horse in, admissible. 191. of year's rent up to particular day, /)ri»na facie proof of commenccnmt of tenan- cy. 335. RECEIVER I appointed by Court of Chancery, may 584 Indtj. MVJSmW.li— continued. make deiiiaml within 4 Geo. II. c. 28, as to double value. 3:20. notice to (luit by, good. 336. RECITAL in deed, effect of, on receipt contained in deed. 26. admissions by. 33. in deeds. Id. in charter, of former charter. Id. may Ix; confined. Id. of ajjpointmcnt of umpire, in award, not evidence of that fact. 76. RECOGNIZANCE variance in statement of 4i). RECORD admissions on. 33. See Admissions. variance in statement of. 48. stated by way of inducement, suffi- cient to prove it substantially. Id. aliter where gist of the action. Id. in action for false return. Id. in action of debt on judg-ment.. Id. in action for malicious prosecutions in action for malicious arrest. Id. in action for escape. Id. mode of proof of on issue of nul tiel record. 53. in same court by production. Id. in inferior court by writ of certio- rari out of superior court, in concurrent superior court by cer tioiari out of Chancery. Id. where not on issue of mil tiel record. 54. by exemplification under great seal. Id. or under seal of court itself. Id. which need not be proved to be genuine. Id. aliter of seal of foreign court. Id. record of foreign or colonial court sTiould be authentica- ted under its seal. Id. or by examined copy where there is no seal. Id. or by signature ofjudge. Id. by examined copies. 54. but minute book of sessions in- admissible. Id. so judment in paper. Id. how examined. Id. in hands of proper officer. 55. old copy of old lost record admit- ted, without proof of examina- tion. Id. rule of court not a record. 57. proof of, on plea of com peruit ad diem in debt on bail bond. 317. RECOVERY seisin presumed, in ancient. 14. RECTOR entries by, as to receipt of dues, evidence for successor. 23. ancient documents in possession of, when admissible. 72. REGISTER of BAPTISM not proof of ositing money in lieu of bail. Id. mode of rendering bail competent, Id. prochc in amy or guardian. Id. party who will be turned out of pos- session. Id. bankrupt, to support commission. Id. WITNESS— continued. unless he has certificate, and has re- leased. Id. his admissions. 84. See Admissiont. insolvent. Id. creditor of insolvent. Id. what is not such an interest as ex- cludes. Id. standing in the same situation as the partjr. Id. as guilty of same assault. Id. underwriter on same policy. Id. witness believing himself interested. ■ Id. borrower of money on usury in action for penalties against lender. Id. witness proving property in himself in trover. Id. equally interested on both sides. Id. agent liable to both parties. Id. payee of accommodation note. Id. that witness woidd be exposed to an action. 85. corporator to prove usage of office. Id. bond surety for administrator. Id. persons not taking beneficial inter- est. Id. trustees. Id. executors in trust. 65. creditor who has assigned his debt. Id. agents, factors, servants, apprenti- ces, and carriers. Id. agent contracting for goods in his own name, incompetent to prove that he bought as agent. Id. rule as to agents not extended to tortious acts. Id. nor to agents in particular trans- actions. Id. • informers when competent. Id. persons rendered competent. Id. by statute. Id. inhabitants. 86. party robbed. Id. surveyor of highways. Id. incompetency from interest, how re- moved. 93. Vide post. incompetency fi-om being party to the suit. 86. though only a trustee. Id. corporator incompetent in action by corporation. 87. though not nominally a party, yet if substantially so. Id. as partner in action against co- partner. Id. trustee suing by treasurer of com- pany. Id. but party robbed is competent. Id. in action for malicious prosecution, evidence of defendant, on former proceedings, admissible for him. Id. 604 Index. WITNESS— continued. W party cannot be compelled to give evidence for opposite party. Jd. alitcr by consent. Id. And sec Ad- denda. 515. competency of co-defendant. 88. party who is arbitrarily made co-de- fendant. Id. where nothing is proved against one defendant, he may be acquitted and admitted. Id. time of taking acquittal. Id. party who pleads in personal dis- charge, after verdict. Id. bankrupt pleading his bankruptcy and certificate. Id. there must be an acquittal, or nolle prosequi. Id. co-defendant in action ex contractu, suf- fering judgment by default, incompe- tent. Id. aliter in tort, for his co-defendant, but not for plaintiff. 89. competency of co-trespasser and co-con- tractor. 89. co-trespasser competent for either party. Id. co-contractor not competent for defendant. Id. aliter for plaintiff. Id. dormant partner of plaintiff can- not be called for him. Id. 90. incompetency of husband and wife. 90. incompetent for or against the other. Id. but not if the evidence merely extend to expose the party to legal demand. Id. or if husband consent. Id. • widow cannot be examined as to conversations with her late husband. Id. woman cohabiting with man com- petent. Id. declarations of husband and wife, when admissible. Id. in actions for crim. con. Id. incompetency of counsellor or solicitor 91. counsel, solicitors, and attornies, privileged persons. Id. so their clerks and interpre- • ters. Id. so magistrate, or agent of go- vernment as to matters of state. Id. what matters an attorney may dis- close. Id. matters not confided to him in his professional capacity. 92. after termination of suit. Id. which he might have known without being IT^ESS— continued. entrusted as attorney. Id. matters of mere fact. Id. whether matters not re- lating to . a suit. Id. and Addenda. court will prevent an improper dis- closure, unless client consents. 93. if examined by his client as to confidential matter, may be cross-examined thereon. Id. incompetency from interest, how re- moved. Id. by release or payment. Id. from guardian, insufficient. Id. to residuary legatee, what suffi- cient. Id. execution and tender of release by witness sufficient, though refused. Id. so tender of release to witness. Id. from one of several plaintiffs suf- ficient. Id. bail how rendered competent. Id. examination of witnesses. Id. ordering them out of court. Id. attornies excepted. 94. consequence ot witness remaining af^ ter order. Id. leading questions what are. Id. names of partners may be suggest- ed. Id. adverse witness may be examined as on cross-examination. Id. examination as to particular con- tents of letter. Id. to contradict witness on other side. cross-examination. 95. papers produced under notice. 6. practice as to. 95. leading questions may be put Id. not as to irrelevant facts, for the pur- pose of discredit. Id. party merely producing papers need not be sworn, and caimot be cross- examined. /(/. but witness, who gives no evi- dence for party calling him, may. Id. witness recalled may be cross-examin- ed. Id. as to contents of letter, &c., written by . witness. Id. wrong witness cannot be cross-ex- amined. Id. credit of witness, how impeached and supported. 96. former statements at variance: Id. but witness must be previously particularly examined as to those statements. Id. Index. 605 WITNESS— conHn?