THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 
 o
 
 .

 
 A 
 PRACTICAL TREATISE 
 
 ON THE 
 
 SETTLING OF EVIDENCE 
 
 FOR 
 
 TRIALS AT NISI PR1US 5 
 
 AND ON THE 
 
 Preparing and Arranging the Necessary Proofs* 
 
 BY ISAAC 'ESPIXASSE, 
 
 M> 
 
 Of GRjrS.IJYJY, ESQ., BARRISTER JIT LAW. 
 
 PHILADELPHIA : 
 H, C. CAREY & I. LEA CHESNUT STREET. 
 
 1822
 
 
 GRIGGS & DICKINSON, PRINTERS,
 
 INTRODUCTION. 
 
 J. AM induced to offer the following Work to the Pro- 
 fession, from having often had occasion to observe, in the 
 course of not inconsiderable experience, the defective 
 manner in which Causes are got up for Trial. This has 
 always appeared to me to proceed from the want of some 
 Treatise, containing rules of practical application as to set- 
 tling the Evidence, and in pointing out and arranging the 
 proofs which are required, in all cases which occur at 
 Nisi Prius. 
 
 The utility of such a Treatise will not be questioned, 
 when it is considered, that it is in vain, that an Action is 
 commenced upon grounds of Law the most settled and 
 decided, and the Pleadings framed with consummate ac- 
 curacy and knowledge ; if, when the Issue is made up, 
 the Evidence is found to be defective, and the proofs at 
 the Trial unequal to the support of it. Who, in practice 
 at the Bar, has not often, under such circumstances, ex- 
 perienced defeat ; in Causes too, where the verdict has 
 been lost, for want of bringing forward Evidence of easy 
 attainment, the necessity of which was only required to be 
 known ? Where there is an absence of all legal Evidence, 
 success cannot be expected, however well grounded the 
 Action may be in principle : but where such Evidence is 
 to be had, it is just matter of reproach either to the Pleader 
 \vho had not pointed it out, or to the Solicitor, who, in
 
 iv introduction. 
 
 preparing the Cause for Trial, had not brought it forward 
 when within his power to do so, and which, if it had been, 
 would have incurred success. 
 
 From what causes this defect proceeds, it is not difficult 
 to see ; it is from not attending to the Issue to be tried, 
 and from not knowing, what in every Case is required to 
 be proved : if that is once known to the Solicitor, to whom 
 the task of collecting and arranging the Evidence belongs ; 
 he will be enabled to judge whether his proofs are sufficient 
 to support his Case ; if they are not, he will stop the Cause 
 in time, and not bring it forward to certain failure : to the 
 reproach of his own professional character, and to the in- 
 jury, perhaps ruin, of his Client. 
 
 To settle Evidence with accuracy is, in many cases, a 
 task of considerable difficulty : the Pleader will have often 
 not only to decide, on what Evidence is necessary, but 
 also whether what he is possessed of, is legal and admissi- 
 ble. It is his duty too, in most instances, not only to 
 point out what will support his own Case ; but, judging 
 by anticipation of that which is to be set up by the other 
 side, to be prepared to meet it. And though Solicitors, 
 living in London, may have recourse with ease, to such 
 aid and benefit by its assistance, it is more worthy of pro- 
 fessional character to be able to do it themselves. But to 
 that part of the Profession who, living at a distance, are 
 often forced to rely on their own judgments, when called 
 upon to prepare Causes for Trial at the Assizes : to fur- 
 nish them with the means of preparing their own Proofs, 
 on the spot, without having recourse to the assistance or 
 advice of others, must be an object of not inconsiderable 
 importance ; it must too be recollected, that such assist-
 
 Introduction. v 
 
 ance cannot be had, without adding something to the ex- 
 pence of a Cause, and which it often happens the Client is 
 little able to bear. 
 
 That is the object which this Work proposes to attain. 
 It must not be considered as an elementary Treatise upon 
 Evidence that has been effected by the masterly Work 
 of Mr. Phillips, which should be found on the shelf of 
 every Lawyer ; nor upon the general Law of Nisi Prius 
 that has been already done by Mr. Selwyn and myself. 
 In the arrangement I have, I confess, used my own 
 Work, " The Digest of the Law of Nisi Prius," as to the 
 order and arrangement which I have adopted, and to 
 which, for the general Law on each subject which I have 
 treated of, I refer. I offer this to the Profession, as a prac- 
 tical Treatise only, on a most important part of the Law, 
 and as a Book of general reference to be used by those in 
 Practice, in settling and arranging Evidence in almost 
 every case which can occur at Trials at Nisi Prius. Some 
 Elementary Points must necessarily arise and be referred 
 to ; for these the authorities are given ; but it must not be 
 expected, that Authorities will be quoted, for every Posi- 
 tion or Rule which I lay down to direct the Practiser in 
 settling his Evidence for Trial. The greatest part of the 
 Work, is the result of long Practice and experience ; and 
 the information which it contains, derived from observa- 
 tions suggested during that period, while I was engaged 
 in reporting Cases at Nisi Prius, and in daily practice at 
 the Bar. 
 
 Of its utility, I feel no doubt : of its execution, very 
 many. It is a wide field, and required much labour of 
 reference, and diligence in compiling. These I have not
 
 vi Introduction. 
 
 spared : whether the object which they aimed at has been 
 attained, it is for others to decide. 
 
 In the arrangement of the subject, I have, first taken a 
 general view of it, and laid down some Rules of General 
 Practice applying to all Cases of Evidence at Nisi Prius ; 
 secondly, the Evidence applicable to particular Actions. 

 
 TABLE 
 
 OF 
 
 CONTENTS 
 
 PAGE 
 
 Introduction - Hi 
 
 CHAP. I. 
 
 Settling of Evidence far Trials at Nisi Prius 9 
 
 CHAP. II. 
 
 Qj Settling the Evidence in the Action ofAssumpsit 21 
 
 CHAP. III. 
 
 Of Settling the Evidence in the Action of Debt 114 
 
 CHAP. IV. 
 
 Of Settling the Evidence in the Action of Covenant 139 
 
 CHAP. V. 
 
 Of Settling the Evidence in Actions of Assault and 
 
 False Imprisonment 150 
 
 CHAP. VI. 
 
 Of the Evidence in the Action for Adultery 167
 
 viii TABLE OP CONTENTS. 
 
 CHAP. VII. 
 
 . 
 
 Of Settling the Evidence in the Action of Replevin 172 
 
 CHAP. VIII. 
 
 Of Settling the Evidence in the Action of Trespass 180 
 
 CHAP. IX. 
 
 Of Settling the Evidence in the Action of Ejectment 195 
 
 CHAP. X. 
 
 Of Settlmg the Evidence in the Action of Slander 223 
 
 CHAP. XI. 
 
 Of Settlmg the Evidence in the Action for Malicious 
 
 Prosecution - 229 
 
 CHAP. XII. 
 
 Of the Evidence for the Plaintiff in the Action of 
 
 Trover - - 235 
 
 CHAP. XIIL 
 
 Of Settling the Evidence in the Action of Trespass 
 on the Case ... 256 
 
 ERRATA. 
 
 Page 148, line 20, for "ante 160," read ante, 137.*
 
 A 
 PRACTICAL TREATISE 
 
 OJf THE 
 
 SETTLING OF EVIDENCE 
 
 FOR 
 
 TRIALS AT NISI PRIUS. 
 
 CHAPTER I. 
 
 N settling Evidence for the Trials of Actions at Nisi 
 Prius, the principles on which it is founded are first to be 
 considered : for that purpose the first point to be looked 
 at is the Issue, as joined in the cause, and the affirmative, 
 or negative, averments which it contains. Affirmative 
 averments are those only required to be proved. Issue 
 may be joined in any stage of the proceedings ; on the 
 Plea, Replication, Rejoinder, or any other part of the 
 pleading : and an Issue is joined, when the last pleading 
 denies all, or part of the facts pleaded in the preceding 
 one ; whereby the case is reduced to direct affirmation or 
 negation. 
 
 The general Issue puts the whole of the Declaration in 
 evidence, and makes it necessary for the Plaintiff to prove 
 every material fact averred in it: in that case Issue is
 
 10 Of the Principles of settling [CHAP. I. 
 
 joined on the Plea by the Replication. But if the De- 
 fendant pleads, not the General Issue, but a Special Plea, 
 consisting of one or several facts, and the Replication takes 
 Issue on it, it is either on the whole of the Plea, or on 
 some particular fact, or facts, averred in it. When that is 
 done, if the Replication takes Issue upon all the facts in 
 the Defendant's Plea, it puts the Defendant upon proof 
 of the whole of the Plea, and of all the facts contained in 
 it. If the Replication denies any particular fact men- 
 tioned in the Plea, Issue is joined on that, and the evi- 
 dence is confined to that point only. 
 
 For example : If the Plaintiff declares that the De- 
 fendant is indebted to him on his promissory-note, and 
 the Defendant pleads the General Issue non-assumpsit, the 
 Plaintiff must prove his Declaration, by proving the De- 
 fendant's hand- writing to the note. If the Defendant pleads, 
 that when the note became due, " he tendered and of- 
 fered to pay the amount," and the Replication denies the 
 Tender, Issue is joined on it ; which is, by the Plaintiff 
 saying in his Replication, " that the Defendant did not 
 tender the money, or any part of it :" in that case the 
 Defendant, by not denying in his plea that he had made 
 the note, admits it, and rests his defence on the Tender. 
 It is an affirmative averment on his part that he did so, 
 and the whole evidence lies on him. But, if to the Ten- 
 der the Plantiff had replied, " A subsequent demand of 
 payment of the note, made on the Defendant, and a refusal 
 by him to pay," on which Issue was joined ; in that case, 
 the Plaintiff admits the Tender, and the Defendant is not 
 called upon to prove it; but the whole evidence rests 
 on the Plaintiff to prove the subsequent demand and 
 refusal. 

 
 CHAP. I.] Evidence for Trials at Nisi Prius. 11 
 
 This will exemplify all parallel cases, and it will be 
 seen how to regulate the evidence by attending to the 
 Issue ; for, where there is no General Issue pleaded, the 
 Defendant admits that the Plaintiff had a cause of action, 
 and rests his defence, not on a denial that the Plaintiff had 
 some cause of action, but on this ; that he, the Defen- 
 dant, has defeated it by some collateral matter. As if the 
 Plaintiff declared in Assumpsit, on a debt due to him by 
 the Defendant, and the Defendant pleads the Statute of 
 Limitations only, " That he did not undertake or pro- 
 mise within six years." He thereby admits that he did 
 owe the debt at one time ; but that it is extinct, by the 
 Plaintiff having suffered six years to elapse, leaving it 
 unsued for. So, if the Defendant was to plead Accord 
 and Satisfaction only, " that he delivered a horse, e. g. to 
 the Defendant, which the Plaintiff had accepted in dis- 
 charge of his debt ; if the Plaintiff takes Issue on, and 
 denies the acceptance or delivery of such thing, in satis- 
 faction of his demand ; the Defendant admits that the 
 Plaintiff had once a cause of action, but he discharges it 
 by such collateral matter, the delivery of something to 
 him, which he has accepted in lieu of his debt. He is, 
 therefore, bound to prove what he affirms ; the delivery 
 and acceptance on the terms he has stated. 
 
 It rarely, however, happens that the Defendant rests 
 solely on such Pleas, but pleads the General Issue also, 
 except in the case of a tender ; which then puts the Plain- 
 tiff upon proof of his cause of action, as stated in the 
 Declaration. 
 
 When, therefore, the Issue is joined on the whole De- 
 claration, by a plea of the General Issue, the Declaration 

 
 12 Of the Principles of settling [CHAP. I 
 
 must be taken up as consisting of so many parts as there 
 are averments in it; and each must be proved in its 
 order. 
 
 Thus for example ; by reference to a Declaration in an 
 Action for an Escape, which will be found at length in 
 Chitty on Pleading, Vol. II. page 185, 3d Edit, the fol- 
 lowing averments will be found : 
 
 The first averment is, " That the Plaintiff had reco- 
 vered a Judgment against one E. F., for a certain sum :" 
 that must be proved. 
 
 The next averment is, " That the Plaintiff sued out a 
 
 writ of ca. sa., directed to the Sheriff of , and 
 
 that it was delivered to the Sheriff to be executed:" this 
 must be proved. 
 
 The next averment is, " That the Sheriff, by virtue of 
 that writ, arrested E. F. :" the fact of the arrest must be 
 proved. 
 
 The last is, " Thatthe Sheriff permitted him to escape :" 
 that must also be proved, by giving evidence of E. F. 
 having been seen at large after he had been arrested, as 
 before. 
 
 This is put in general terms : the mode of proving 
 each of these averments will be given in its proper place. 
 
 But though it is stated generally that all affirmative aver- 
 ments are necessary to be proved, and though the Plaintiff 
 and Defendant are equally bound to prove such averments
 
 CH A p. I.] Evidence for Trials at Nisi Prius. 13 
 
 in their respective Pleadings, there are some, though of 
 that description, which are deemed immaterial; that is, 
 which do not affect the grounds of the Action or defence, 
 and which, for that reason, need not be proved. 
 
 Thus, the day laid in the Declaration is, in all cases, 
 immaterial ; except in the action of Ejectment ; on Penal 
 Statutes ; or where it makes part of the contract on which 
 the Action is brought : such as in Actions on bonds, or 
 written instruments, as bills of exchange, notes or the 
 like ; for in these the date identifies the contract, and 
 makes part of it. Thus, a Declaration on a Bond, dated 
 on the 1st of January, and so described in the Declaration, 
 would not be proved by the production of a Bond, dated 
 the 10th, for they would appear to be different Instruments. 
 But, if the Declaration stated a contract for the sale of 
 goods, as made on the first of January, and unpaid for, 
 and the evidence was that the contract was on the 10th ; 
 the time of making the contract, is of no importance ; it 
 is the breach of promise, in not paying for them, which 
 is the ground of action ; and, therefore, the averment of 
 the particular day is considered immaterial. In those lat- 
 ter cases, therefore, it is sufficient for the Plaintiff to prove 
 his cause of action on any day before commencement of 
 the action, though it differ, from that laid in the Declaration. 
 
 The place is also, in transitory actions, immaterial ; 
 for the legal principle is that, Actio personalis sequitur 
 personam. Debt is a debt every where, and there is no 
 locality belonging to it ; but to an Action that concerns 
 the land, there is : therefore, where in Trespass quare 
 clausum fregit, or in Ejectment, the Declaration lays 
 the fact in a wrong County or Parish, it is fatal. In all
 
 14 Of the general Ruk for settling [CHAP.!. 
 
 cases, therefore, of this description, the Plaintiff should 
 be prepared with evidence of the right description of the 
 place in that respect, (a) 
 
 Wherever, therefore, in local actions, the place is ma- 
 terial, and is improperly laid in the Declaration, the De- 
 fendant should be prepared to prove the true place, and the 
 Plaintiff would be nonsuited. Therefore, when this occurs, 
 it will be prudent, in advising on the evidence in any ac- 
 tion, to look to title Venue, in the books of Abridgment 
 or Practice ; and, if the Venue is improperly laid, the 
 Defendant, by disproving it, entitles himself to a nonsuit. 
 
 1 As for example : where the Stat. 31 Eliz. chap. 5. sect. 
 2., and 21 Jac. I. chap. 4., direct that all actions on 
 Penal Statutes, by common Informers, shall be brought 
 in the proper County, if the Defendant brings evidence 
 that the offence was committed in a different County from 
 that laid in the declaration, the Plaintiff must be non- 
 suited. 
 
 Having now stated what are the principles on which 
 Evidence is to be settled for Trials at Nisi Prius, I shall 
 first lay down a few general Rules to be applied in prac- 
 tice in all cases ; and secondly, the Rules to be observed 
 in settling the Evidence in each Action separately. 
 
 (a) Cases of action against constables or officers is an exception to 
 this ; but those actions are made local by Statute 21 Jac. I. chap. 12. 
 sect. 2. 

 
 CHAP. I.] Evidence for Trials at Nisi Prius. 15 
 
 FIRST OF THE GENERAL RULES AS TO SETTLING EVI- 
 DENCE FOR TRIALS AT NISI PRIUS TO BE OBSERVED 
 IN PRACTICE. 
 
 I. Every written Instrument to which there is a sub- 
 scribing witness, can only be given in evidence by calling 
 the subscribing witness to prove it : he must, therefore, 
 in every instance, be subpoenaed. And this is not dis- 
 pensed with, though the Instrument is in the hands of the 
 opposite party, and the name of the subscribing witness 
 unknown. In such a case, a copy must be obtained un- 
 der a Judge's order, of the name and abode of the sub- 
 scribing witness ; and he must be had if possible. 
 
 (The exceptions to this rule will be found in the chapter 
 of Debt.) 
 
 II. Service of all Papers in the course of a cause, as 
 Notices, Summonses, and the like, at the Party's, or his 
 Attorney's, dwelling-house, or usual residence, is good 
 service. Personal service is only required when an At- 
 tachment is to be grounded upon it ; but no service is 
 good, if made on a Sunday. All Papers, however, con- 
 nected with the cause should, after appearance, be regu- 
 larly served on the Attorney in the cause : such as the 
 notices to set-off; to produce Papers or Notices which 
 is necessary, in order to make copies of them evidence ; 
 and under the Stat. 49 Geo. III. of contesting a Bank- 
 ruptcy.
 
 16 Of the general Rule for settling [CHAP. I. 
 
 III. Evidence of a party's hand-writing, usually, is 
 proved by the testimony of witnesses who have seen the 
 party write, and are acquainted with his character of 
 writing. The witness is not called upon to swear posi- 
 tively, that the paper produced is the hand-writing of the 
 party, but only that he believes it to be so. But a hand- 
 writing may be proved by a witness who never saw the 
 party write, but who has corresponded with him ; but this 
 evidence is admissible only where the correspondence has 
 been acted under : as for example, where a person, whose, 
 hand-writing is to be proved, has ordered goods which 
 have been sent to him pursuant to his order, and he has 
 paid for them : but comparison of hands is not allow- 
 able, (b) 
 
 IV. When any Paper, or written Instrument, is ir. the 
 hands of a Party in a Cause, which the other may have 
 occasion to call for and use as evidence, or for any pur- 
 pose, notice must be given to produce it ; if not produced, 
 the Party who gave the notice may, on proof of the notice 
 given, and that there was such Paper or written Instru- 
 ment in the opposite party's possession, give evidence of 
 it by a copy, or by parol. But if a copy is offered in evi- 
 dence, it must be proved to be so. The notice should 
 properly state, specifically, the Paper or Instrument re- 
 quired. 
 
 V. Of every thing which is matter of Record, an ex- 
 amined copy is evidence at Nisi Prius ; as of a Judgment, 
 a private Act of Parliament, and the like. So of Books 
 of a public nature ; and which, if produced, would be 
 
 (b) Vide I Esp. Dig. N. P. 176.
 
 CHAP. I.} Evidence for Trials at NisiPrius. 17 
 
 of themselves evidence, examined copies will be evidence : 
 such as the Bank books ; books of the East India Com- 
 pany ; the Journals of the House of Commons ; the Coun- 
 cil-book in the Secretary of State's office, and the like, (c) 
 
 VI. The evidence must correspond with the Issue in 
 every point, or the Plaintiff will be nonsuited, (d) As if 
 the Issue be on the warranty of a horse, " That he was 
 steady in harness," and the evidence be, that he was war- 
 ranted " sound," that would not support the Declaration. 
 If the action be " Assumpsit for goods sold and deli- 
 vered," and the evidence prove the demand to be for 
 " money lent," the Plaintiff would fail in his Action. 
 
 VII. In many cases Notice of Action is required to be 
 given ; and no Action can be commenced until the ex- 
 piration of the time mentioned in it. This is principally 
 in the case of Actions, against Public Officers ; as Justices 
 of the peace, Constables, Officers of the Excise, &c. 
 
 Where the Statute requires such notice, the Plaintiff 
 must, at Nisi Prius, be always prepared to prove it ; and 
 he should also have the Writ ready to produce, to show 
 the regular commencement of the Action ; and that it 
 was sued out after the time required by the Statute was 
 expired. 
 
 This is done by calling the witness who served the no- 
 tice on the Defendant, and by his production of a copy of 
 it. He should also be prepared to prove the actual day 
 
 (c) Phillips on Evii!. 3.38. 
 
 {d} Vid. 2 Esp. Dig. N. P, 172.
 
 IS Of the general Rule for settling [CHAP. I.- 
 
 on which he served it. Every Attorney keeps, of course, 
 a copy of all notices which he serves : if there were two 
 copies of such notice of Action made out by him at the 
 same time, one of which he has had served; and the other 
 he has kept ; it will be sufficient for the witness to produce 
 the latter ; provided he had compared it with the one he 
 had served, and swears to the service, (e) 
 
 It is usual, however, to give notice to the Defendant to 
 produce at the Trial, the notice of Action served on him, 
 considering the copy kept as a copy merely : that however 
 is, by the authority just cited, unnecessary. But I would 
 advise such notice to produce papers, letters, &c. to be 
 given in every Action, where any part of the transaction 
 on which the Action is founded, has taken place through 
 the medium of Avriting or correspondence. 
 
 j VIII. Every Instrument which requires a stamp 
 should be carefully compared with the Table of Stamps 
 before the Trial, to see that it is properly stamped, and 
 as to what are the proper stamps : the Rules are these 
 
 1, Every Instrument ought to have the Stamp appro- 
 priated by the Stamp Acts to such Instrument, and of the 
 value required by the statute. But, by Stat. 43 Geo. III. 
 c. 127. if the stamp is of the proper denomination, but of 
 a higher amount than the Instrument produced required, 
 it may be given in evidence. And this has been carried 
 still further, by Stat. 55 Geo. III. c. 184. s. 10. which 
 enacts that, even though the denomination is wrong, yet, 
 if the stamp is of equal or greater value than could be 
 
 (<?) 2 Bos, Sc Pull. 39.
 
 CHAP. I.] Evidence for Trials at Nisi Prius. 19 
 
 required for the Instrument offered in evidence, it will be 
 effectual ; except in cases where the stamp used on such 
 instrument is specially appropriated to any other instru- 
 ment, by having its name on the face of it. 
 
 If, therefore, the Instrument, which is to be given in evi- 
 dence, is stamped with a stamp not having any name on 
 it, it is necessary now only to look that it is of sufficient 
 value or amount. 
 
 2. But, though an Instrument may have a wrong stamp, 
 or when produced is found to have none, it yet may be 
 admitted in evidence for collateral purposes ; such as for 
 a witness to refresh his memory by it, for which purpose 
 he may refer to an unstamped receipt, (f) So, if there 
 were two parts of an agreement, one stamped in the pos- 
 session of the Plaintiff", and an unstamped one in the pos- 
 session of the Defendant, and the Plaintiff has had notice 
 to produce his part, which is stamped, and he does not, 
 the unstamped agreement may be given in evidence for 
 the Defendant, (g) 
 
 3. Where there are many Parties to a Deed, if they 
 all have a claim upon the same fund, which is the object 
 of the Deed, a single stamp is only required, though each 
 claim a separate part ; as, ex. gr. a composition Deed 
 with creditors. But, where each claims under a distinct 
 right, out of one common fund or subject, there must be 
 distinct stamps, (h) 
 
 (/) 1 East. 460. 4 Esp. N. P. C. 213. 
 (g) 1 Taunt. 507. 1 Camp. 501. 
 (A 13 East. 232.
 
 
 20 Of the general Rule, fcfc. [CHAP. I. 
 
 These are the general Rules applying to all cases of 
 Trials at Nisi Prius : and I shall now proceed to consi- 
 der, separately and distinctly, the Evidence necessary in 
 every Action so tried there.
 
 21 
 
 CHAPTER II. 
 
 OF SETTLING THE EVIDENCE IN THE ACTION OF 
 ASSUMPSIT. 
 
 -i-N treating on this subject, as it applies to this Action, 
 I shall first point out the evidence which is required to 
 support this Action in the different cases of it tried at Nisi 
 Prius, that is, the evidence on the part of the Plaintiff ; 
 and, Sndly, That of which the Defendant may avail him- 
 self in answer. These rank chiefly under the following 
 heads, on the part of the Plaintiff : 
 
 I. In the case of express contracts in writing. 
 
 II. In the case of express contracts, which may be 
 made either verbally or in writing. 
 
 III. In the cases, as far as they respect the persons of 
 the contending parties, and the relation in which they 
 stand to others. 
 
 IV. The Evidence on the part of the Defendant. 
 
 Of express contracts in writing ; the most important 
 are 1. Bills of Exchange and Promissory Notes. 2. Po- 
 licies of Insurance.
 
 22 Of settling the Evidence [CHAP. II. 
 
 I. Of settling the Evidence in Actions on Bills of Ex- 
 change, and zvhat it is necessary for the Plaintiff to 
 prove. 
 
 1. The Plaintiff must produce at the Trial, the Bill of 
 exchange, or the Promissory Note itself declared upon. 
 Evidence of the loss of the Bill, or Nete, will not entitle 
 the Plaintiff to give a copy in evidence ; it must be proved 
 to have been destroyed, for, unless the actual destruction 
 of the bill or note is proved, the Plaintiff cannot recover 
 by the production of a copy of it, or at all. (a) 
 
 Wherever, therefore, the Plaintiff offers a copy in evi- 
 dence, he must call a witness to prove that the bill or note 
 was subscribed or drawn in the Defendant's hand- writing : 
 that what is offered in evidence, is an accurate copy or 
 transcript of it, by having compared it with the original ; 
 and, lastly, to prove the actual destruction of it. 
 
 II. The Plaintiff is never called upon to prove the 
 consideration he gave for the Bill, or his title to it ; unless 
 the consideration, or his title to it, is first impeached by 
 evidence produced by the Defendant, (b) The bare pro- 
 duction of the Bill is, therefore, prima facie evidence of 
 title in the Plaintiff. 
 
 The Evidence which will entitle- the Defendant to call 
 on the Plaintiff to prove the consideration given, or his 
 title to the Bill, is, e. g. that he was swindled out of it ; 
 
 (a) 3 Campb. 324. 4 Taunt. 602. 1 Esp. Dig. N. P. 176. 
 (*) 1 Esp. Dig. N. P. 178. 4 Taunt. 115.
 
 CHAP. II.] on Sills of Exchange. 23 
 
 that it was given for an illegal consideration ; or, that it was 
 stolen from him, or lost. These circumstances, though 
 not sufficient to prevent the Plaintiff" from recovering the 
 amount, if he was a bond, fide holder of it, and not impli- 
 cated in the fraud or illegality, yet, from the circumstances 
 of distrust and doubt thrown on the negotiation of the 
 Bill, he is required to prove the consideration which he 
 gave, or how he became possessed of it. (c) 
 
 Wherever, therefore, it is expected, that the Defendant 
 means to bring forward any such evidence, the Plaintiff 
 must not content himself with proof of the hand-writing 
 only ; but must be prepared to show, how he became pos- 
 sessed of the Bill, and the consideration which he gave 
 for it. 
 
 In the King's Bench, the Defendant may bring forward 
 this Evidence at the Trial : in the Common Pleas, the 
 Court have made a Rule that the Defendant must give 
 notice of his intention to do so. 
 
 III. The Plaintiff being the holder of the Bill, is either 
 the Payee or the Indorsee ; and the Evidence required 
 when the action is against different parties on the Bill is as 
 follows : 
 
 1. If the Action is by the Payee against the Acceptor of 
 a Bill of Exchange, or the maker of a Promissory Note, 
 the Plaintiff is required only to prove the hand-writing of 
 the Defendant ; and there is no necessity to prove a pre- 
 vious demand of payment on him ; nor to prove the 
 drawer's hand-writing. 
 
 (c) .4 Taunt. 115,
 
 24 Of the Evidence in Actions [CHAP. II. 
 
 2. If the Actwn is by the Payee against the Drawer of 
 the Bill of Exchange : if the Bill was accepted, the Plain- 
 tiff must prove the acceptor's hanckwriting to the Bill, 
 or otherwise identify him as the acceptor ; a demand of 
 payment of it from him when due ; that he did not pay 
 it, and notice of his neglect or refusal given to the De- 
 fendant : and then prove the Defendant's hand- writing 
 as drawer of the Bill, which is sufficient. 
 
 If the Bill was refused acceptance: the Plaintiff must 
 prove, that the Bill was tendered for acceptance to the 
 drawee as described in the Bill, and his refusal to accept ; 
 and then prove notice of his refusal given to the Defend- 
 ant, whose hand-writing must be proved. 
 
 3. If the Action is by the Indorsee against the Ac- 
 ceptor : in case of a single indorsement, which must be 
 by the payee, the Plaintiff must prove the Defendant's 
 hand-writing to the acceptance, and the Indorser's hand- 
 writing on the back of the Bill. 
 
 What is said here of a single Indorsement, means a 
 general Indorsement by the Payee by putting his name on 
 the back of the Bill ; which is called an indorsement in 
 blank ; but if he made a special indorsement, as to pay to 
 A. B. ; then the indorsement of such person must also be 
 proved, (d) 
 
 
 
 If there are several Indorsers, whose indorsements are 
 stated in the Declaration, their hands- writing should all be 
 proved. But, as it is usual to have a second count in the 
 Declaration against the acceptor, stating the Erst indorse- 
 
 (d) Vide Chitty on Bills, 502, last Ed
 
 CHAP. II.] on Bills of Exchange. 25 
 
 ment only ; proof of the first indorsees hand- writing only, 
 will, in that case, entitle the Plaintiff to recover. 
 
 IV. If the Action is by the Indorsee against the Drawer 
 of an accepted bill: the Plaintiff must prove the hand- 
 writing of the Acceptor, or otherwise identify him as the 
 Acceptor, of the Payee, or first indorser, and of the De- 
 fendant. He must then prove a demand of the payment 
 of the Bill when due of the acceptor, and his omission, or 
 refusal, to pay it ; and notice of his default duly given to 
 the Defendant. 
 
 But, if the Bill was not accepted, the Plaintiff must 
 prove the hand-writing of the Indorser, and of the De- 
 fendant ; and that the Bill was presented for acceptance 
 to the Drawee, as described in the Bill ; his refusal to 
 accept, and notice to that effect given to the Defendant. 
 
 V. If the Action is by the Indorsee against the In- 
 dorser, the Plaintiff is not called on the prove the hand- 
 writing of the Drawer, or prior Indorsers, but he must 
 prove the hand-writing of the Defendant* and of the ac- 
 ceptor, (if the Bill was an accepted one,) and a demand, 
 and refusal, or omission, to pay it when it became due, and 
 due notice to that effect given to the Defendant. (<?) 
 
 If the Bill was not accepted, the Plaintiff must prove, 
 that the Bill was presented to the Drawee for acceptance, 
 as described in the Bill, and which he refused or omitted 
 to do, and notice of that circumstance given to the De- 
 fendant ; and that, with proof of the Defendant's hand- 
 writing,' will be sufficient. 
 
 (e) Vide 2 Camp. 182. 
 D
 
 26 Of the Evidence in Actions [CHAP. II. 
 
 VI. " The Cases here put, are of the common ones, 
 of acceptance by a single person, on whom the Bill is 
 drawn, and who subscribes his name to it in token of ac- 
 ceptance ; but there are other cases, in which a Party is 
 made liable as acceptor, though the acceptance is not so 
 made. These are cases of acceptance by procuration, by 
 letter, by parol, by withholding or destroying the Bill, or 
 by one Partner for another. So there are conditional ac- 
 ceptances, or acceptances payable at a particular time or 
 place : in all of which cases, the proofs must be attended 
 to." 
 
 1. If the acceptance is by procuration, or agency ; as that 
 is an acceptance by one man in his own name, for ano- 
 ther, who is the Drawee of the Bill, and who is sued as the 
 Acceptor, by virtue of an authority given by him for that 
 purpose ; in order to bind the Principal, Evidence must 
 be given of that authority; for that purpose the person 
 himself by whom this acceptance was made may be called 
 as the witness to prove it ; it is the best Evidence, and 
 should always be had if possible. If that witness cannot 
 be had : proof of a power of attorney given by the De- 
 fendant, to him who as agent accepted the Bill, will be 
 good Evidence ; so would the declarations or admissions 
 of the Defendant, -that he had authorized the party to ac- 
 'cept Bills for him. And, lastly, it would be sufficient to 
 fix the Defendant as Acceptor, that the Agent was in the 
 habit of so accepting Bills on his Principal's account, 
 which the latter, in many instances, had paid ; but in this 
 case of an acceptance by procuration, Evidence of the 
 authority to accept by some mode or other, is indispensa- 
 ble. (/) 
 
 "(/) Johnson v. Mason, 1 Esp. N. P. C. 89.
 
 CHAP. II.] on Bills of Exchange. 27 
 
 2. If the Acceptance is by letter ; the Defendant's hand- 
 writing subscribed to the letter must be proved ; and it 
 must be clearly made out that the promise to accept, so 
 given by letter, referred to the Bill on which the action is 
 brought, either by its having been enclosed in the letter, or 
 stated in the letter, or referring to it in unambiguous terms. 
 
 3. Iftfie Acceptance is by parol ; that must be proved 
 by a witness who heard the Defendant say, that he would 
 accept the Bill : and the same attention must be paid to 
 the identifying of the Bill with the parol acceptance ; 
 such as, e. g. if the witness had the Bill in his hand at 
 the time when the Defendant said he would accept it. 
 
 4. If a person on whom a Bill is drawn, and presented 
 for acceptance ; in place of returning it either immediately 
 or if demanded, within due time after it has been left for 
 acceptance ; withholds it for a length of time, or destroys 
 or defaces it ; he has been held to be chargeable as the 
 Acceptor, (g) In such case the Plaintiff must prove a 
 copy of the Bill which was left with the Defendant, in 
 case the Plaintiff has never obtained possession of it and 
 prove the delivery of such Bill to the Defendant at a par- 
 ticular time ; a demand of the bill in due time after, and 
 that the Bill was not returned : was destroyed or defaced. 
 
 5. If a Bill is accepted by, or indorsed by a Firm, con- 
 sisting of several Partners in that name, whose names at 
 length stand as Defendants on the Record, the Acceptance 
 or Indorsement must necessarily be in the hand- writing of 
 
 (g) Chitty on Bills, 194, and the cases there cited ; tame*, yutcre, 
 ft vide Jeune v. Ward, 1 Barn. & Aid. Rep. 65 S.
 
 28 Of the Evidence in Actions [CHAP. II. 
 
 one of them ; in that case the Plaintiff must prove the 
 hand-writing of such Partner, and that he is a member 
 of that Firm consisting of the Defendants on the Re- 
 cord, (h) But if there are several acceptors' 1 names on the 
 Bills the Plaintiif must prove the hands-writing of each 
 of them, (i) 
 
 6. If the acceptance is conditional, as, e. g. " accepted 
 payable on the arrival of a ship," the Plaintiff must not 
 only prove the Defendant's hand-writing to the Bill, but 
 he must give Evidence of the actual arrival of the ship. 
 
 So if the acceptance of a Bill is "payable at a particu- 
 lar place," (k) the Plaintiff must prove a demand of the 
 payment of the Bill at that place ; as for example, in the 
 common course of business at a Banker's : and in such 
 case it is incumbent on the Plaintiff to prove, not only a 
 demand of payment at the Banking-house, but within the 
 usual hours of business ; that is, before five o'clock in 
 the afternoon. 
 
 7. If the Bill is payable to bearer, proof of the acceptor's 
 hand- writing only is sufficient. 
 
 VII. These are the cases which usually occur, in 
 which the Evidence is given in Court, on the production 
 of the Bill itself, and with reference to the names on it : 
 there are however two cases of collateral evidence, which 
 are of themselves sufficient proof of the Plaintiff 's case ; 
 and in which no further evidence is required. 
 
 (A) Peake, N. P. C. 16. Chitty on Bills, 488. 
 
 (0 1 Esp. N. P. C. 135. 
 
 (*) 7 East. 385. 1 Mau. & Sel. 28.
 
 CftAP. II.] on Bills of Exchange. 29 
 
 1. If the Defendant has paid money into Court on the 
 whole Declaration, in which the Defendant is declared 
 against as a Party on the Bill, it is sufficient Evidence for 
 the Plaintiff, to produce at the Trial, the Bill of Exchange, 
 and the copy of the Rule for the payment of the money 
 into Court. (/) 
 
 2. If the Defendant is sued, as Acceptor of a Bill of 
 Exchange, on which there were several indorsements, and 
 when the Bill became due he has asked for time for pay- 
 ment, (m) or if, when it became so due, he promised pay- 
 ment; (n) this supersedes the necessity of going into 
 proof of the hands-writing of the parties whose names 
 are on the bill ; or of notice of its dishonour. But the 
 request or promise must be distinctly proved, and also 
 that it applied to the Bill of Exchange mentioned in the 
 
 ' Declaration : of this the best Evidence is, that of a wit- 
 ness who applied for the payment of the Bill in question, 
 and produced it to the Defendant at the time when he 
 asked for time or promised to pay it. 
 
 VIII. " In laying down the Rules applicable to such 
 cases of Evidence as are before stated ; Notice of the dis- 
 honour of a Bill is always required, where the party sued 
 was not first liable, but becomes so, by reason of the de- 
 fault of the party who was so : this is the case in all Ac- 
 tions on Bills against the drawer or indorser, who, being 
 only liable on the default of the acceptor, notice is re- 
 quired to be given of his default to the Defendant, or the 
 Plaintiff will be nonsuited." 
 
 (0 3 Campb. 40. (rn) 6 Esp. N. P. C. 43, 
 
 () 7 East. 230.
 
 30 Of the Evidence in Actions [CHAP. II. 
 
 1. With respect to this notice it should be given by 
 the holder of the Bill when it became due, and may be 
 either verbally, or by letter. (0) 
 
 If the notice was verbal, it is proved either by the per- 
 son who gave it by the Plaintiff's direction, or heard him 
 give it : and the witness must be able to prove, that it ap- 
 plied to the Bill on which the action is brought. 
 
 If the notice was by letter, which is good notice ; the 
 Plaintiff should produce and prove a copy of the letter 
 written by him to the Defendant, informing him of the 
 non-payment or dishonour of the Bill; this is done by 
 calling a witness, who examined the copy produced with 
 the original letter, and it must appear that it was addressed 
 to the Defendant. This letter, the witness should be able 
 to prove, was either put into the Post-office : delivered to 
 postman : or sent away in the usual mode of sending let- 
 ters to the Post from the Plaintiff's house : or was per- 
 sonally delivered to the Defendant himself ; and he should 
 also be able to speak accurately as to the day and time on 
 which it was put into the Post-office, or delivered to the 
 Defendant, which at furthest should be the next day : but, 
 in order to admit this Evidence, the Defendant must be 
 served with a notice to produce the original letter. 
 
 If, in consequence of such notice to produce, the De- 
 fendant produces the original letter, it speaks for itself; 
 if not, the Evidence above-stated will be sufficient. 
 
 2. The case just now mentioned is, when the indorser 
 (o) 1 Term Rep. 167.
 
 C H A p. IL] on Bills of Exchange. 3 1 
 
 or drawer of the Bill, or his residence, is known, so that 
 the notice of the dishonour of the Bill given by letter, 
 may be presumed if sent by the post to have come to his 
 hand ; but it frequently happens that he is not to be found, 
 and, when sued, he relies on the want of notice of the dis- 
 honour of the Bill in due time, as amounting to a dis- 
 charge of him. To answer this case, the Plaintiff should 
 be prepared to show, by a witness, every degree of dili- 
 gence and attention on his part used to find him out ; such 
 as by proving inquiries made where he lived last, or in 
 places where he was known to resort, or of persons likely 
 to know something concerning him, and that all inquiries 
 were ineffectual. 
 
 This Evidence should also be had in cases of actions 
 against the Drawer or Indorser, in which a previous de- 
 mand on the Acceptor must be proved ; but which, if he 
 cannot be found, after inquiries made, and endeavours to 
 find him proved, as stated, will be sufficient Evidence to 
 satisfy the necessity of a demand. 
 
 3. In actions on foreign Bills of Exchange, a protest 
 must be proved to have been made, and be produced. 
 
 In the case of Actions upon Promissory Notes, the 
 Rules as to Evidence are the same as those laid down 
 with respect to Bills 'f Exchange. The make; of a Pro- 
 missory Note is as the Acceptor of a Bill of Exchange, 
 and must be first resorted to for payment ; and is his de- 
 fault creates the liability of other parties on the Note, 
 they must have notice of it in due time ; and if sued, they 
 are entitled to call on the Plaintiff, (the holder of the Note,)
 
 32 Of the Evidence in Actions [CHAP II. 
 
 to prove a demand of payment by him made on the 
 maker of the Note, his default and notice of it to them. 
 It was observed by Lord Mansfield, that a Promissory 
 Note assumes the form of a Bill of Exchange when in- 
 dorsed, for then the maker of it becomes as the Acceptor ; 
 the person to whom it is payable, the drawer ; and the 
 Indorsee the Payee. 
 
 The Rules, therefore, laid down as to the Evidence on 
 Bills of Exchange, will be found precisely to apply to ac- 
 tions on Promissory Notes. 
 
 Thus in an action on a Promissory Note by the Payee 
 against the maker, proof of the hand- writing of the latter 
 only is required. 
 
 If it is by the Indorsee of the Note against the maker, 
 proof of his hand- writing, and that of the Payee, who is 
 necessarily the indorser to the plaintiff, is sufficient. 
 
 If the Action is by the Indorsee against the Indorser, 
 (the payee,) proof of the hand- writing of the maker and 
 indorser are required, and also of a demand on the maker 
 of it for payment ; and his neglect or refusal, and notice 
 to that effect, given to the Defendant. 
 
 The Rules as to notice, and in every other respect, are 
 the same. 
 
 And note, that whenever a witness's name appears to 
 the signing, accepting, or negotiating, any Bill or Note, he 
 must be called to prove it ; and, if he denies having seen
 
 CHAP. II.] on Bills of Exchange. 
 
 the Party subscribe his name, the hand-writing may be 
 proved by other means, (p) 
 
 (/j) 2 Campb. 636. Peake, N. P. C. 23, and 136. 
 
 Of the Evidence on the part of the Defendant in Actions 
 on Bills of Exchange and Promissory Notes. 
 
 These matters of defence usually are Usury, Fraud, 
 or that the Bill or Note was given for a consideration con- 
 trary to law, or without any consideration whatever. 
 
 This last defence can only be available between the ori- 
 ginally contracting parties themselves; for, if a Bill or 
 Note is passed to a third person by a bonajide indorse- 
 ment, the party sued on the Bill or Note cannot set up the 
 want of consideration as a defence against him ; for the 
 act of acceptance and signing a Promissory Note, imports 
 a consideration to all the world. But, as between the 
 Parties themselves, as between the Acceptor and the 
 Drawer of a Bill, payable to his own order, or between 
 Payee and maker of a Promissory Note, the acceptor of 
 the Bill, or maker of the Note, being in either case sued 
 by the Payee, may set up as a good defence, that there 
 was no consideration ; and, if that is proved, the Plaintiff 
 cannot recover. 
 
 It was held, until passing the Act of Parliament 58 
 Geo. III. c. 93. that if a Bill of Exchange, or Promissory 
 Note, had been given for a usurious consideration, all se- 
 curities being declared by the Statutes against usury, as
 
 34 Of the Evidence in Actions [CHAP. II. 
 
 void in law, the defence of usury could be set up against 
 any Indorsee, even though ignorant of the usury, and 
 though he had given a bondf.de consideration for the Bill 
 or Note ; that Statute, however, enacts, " That no Bill of 
 Exchange, or Promissory Note, which shall be drawn 
 after the passing of the Act, (June 10, 1818,) shall, 
 though it may have been given for a usurious considera- 
 tion, or upon a usurious contract, be void in the hands of 
 an Indorsee for a valuable consideration, unless such In- 
 dorsee had, at the time of discounting or paying such 
 consideration for the same, actual notice that such Bill of 
 Exchange, or Promissory Note had been originally given 
 for a usurious consideration, or on a usurious contract." 
 
 The defence of usury, therefore, where the Action is by 
 an Indorsee of a Bill or Note, is quite taken away, unless 
 the Defendant can bring home to him a knowledge of the 
 consideration being originally usurious. The Defendant 
 may, in such case, prove that knowledge, by showing 
 that the Plaintiff was present when the Bill or Note was 
 drawn, and knewon what account it was made; or that 
 he was told of it before he took such Bill or Note : if he 
 is able to do so it will be no answer for the Plaintiff to 
 show that he gave for it a bonafide consideration. 
 
 What the Statute has enacted in the case of usury, was 
 always the law, where the defence was fraud, or the ille- 
 gality of the consideration. The Acceptor of a Bill of 
 Exchange, or maker of a Note, could never set up against 
 an Indorsee, that he had accepted the Bill, or drawn the 
 Note, for an illegal consideration : such as, e. g. for illegal 
 insurances in the lottery, or was induced to do so by a 
 fraud practised on him by the Payee, unless he could im-
 
 CHAP. II.] on Policies of Insurance. 35 
 
 plicate the Plaintiff with full knowledge of it : but such 
 would be good Evidence if the Action was by the Payee 
 himself against the Acceptor or maker of the Note. 
 
 The most usual defence in Actions of Bills of Ex- 
 change, or Promissory Notes, is want of notice of the 
 dishonour; but, as this is affirmative Evidence on the 
 part of the PJaintiff, that he did give due notice, as stated 
 before ; the Defendant has only to see that such notice is 
 proved to hav^ been given to him in due time. If notice 
 was given by letter, to make it Evidence of notice, the 
 Defendant should have had notice to produce the letter. 
 If Defendant has it, he should produce it ; and the Post- 
 mark on the letter will show the actual time of its being 
 put into the office, which, if it was too late, the Plaintiff 
 will be nonsuited ; or he may prove by other testimony, 
 the actual time of receiving the notice. 
 
 The Defendant should also attend to the stamp ; as, if 
 it is not correct, the Plaintiff cannot recover on the Bill or 
 Note. 
 
 The second description of written agreements proposed 
 to be considered was, Policies of Insurance, I shall there- 
 fore proceed to lay down : 
 
 1. The rules for settling the Evidence for the Plaintiff 
 in Actions on Policies of Insurance ; and,jirst, on the part 
 of the Plaintiff. 
 
 The Plaintiff in this Action declares in Assumpsit on the 
 Policy, (q) The material averments in the Declaration 
 
 (?) 1 Esp. Dig. N. P., from 73 to 105.
 
 36 Of the Evidence in Actions [CHAP II. 
 
 which are necessary to be distinctly proved, are 1. That 
 the Defendant subscribed the Policy. 2. That the Plain- 
 tiff was interested to the amount of the sum set opposite 
 to the Defendant's name. 3. That the Ship sailed on the 
 voyage insured, and was lost by the means insured against, 
 and as stated in the Declaration. 
 
 The course of Evidence at the Trial at Nisi Prius is, 
 first, to produce the Policy itself, observing that it is pro- 
 perly stamped. >2. To prove that the Befendant sub- 
 scribed the Policy in the character of an underwriter is 
 the next step ; this is either in the Defendant's own hand- 
 writing, or by some Person deputed or authorised by him 
 to sign Policies for him. 
 
 If the Policy is subscribed by the Defendant himself, 
 it is sufficient to prove his hand- writing ; if it is by ano- 
 ther Person in the common form of " A. B. for C. D. 
 (the Defendant) 200/. e. g." it will be then necessary to 
 prove such Person's hand- writing, and also that he was 
 authorized by the Defendant to subscribe Policies for 
 him. To prove this, the Party so authorized is the usual, 
 and in fact the best witness ; as he can prove as well the 
 authority given to him for the purpose by the Defendant, 
 as his own subscription of the Policy ; but if he is dead, 
 or cannot be brought forward : the Plaintiff must prove 
 that Person's hand-writing, and then call witnesses who 
 can speak to the Defendant's having given him such 
 general authority ; by the admission of the Defendant 
 himself, or by his having paid losses on Policies so under- 
 written in his name. The subscription to the Policy, 
 and the circumstances attending it, as to the representa- 
 tion and warranty made at the time, when material ; are 
 usually proved by the Broker who effected the Policy.
 
 CHAP. II.] on Policies of Insurance. 37 
 
 3. It next becomes necessary for the Plaintift'.to prove, 
 that he, or if the Insurance is by an Agent, that the Prin- 
 cipal, is interested to the amount of what he seeks to 
 recover. 
 
 If the Policy is on the Ship, it has been held to be suf- 
 ficient Evidence for him to show that he was in possession 
 of her ; (r) but if there is any doubt in that respect, or 
 that the Plaintiff's property in her may be disputed, he 
 should be prepared to show a complete and perfect title 
 under the Ship Registry Acts. It will be mentioned more 
 at large hereafter how such a title is to be made out. (s) 
 
 If the Insurance is on Goods : the Plaintiff must show 
 the shipping of them on board the Vessel insured, and the 
 value, and that they belonged to him or to his principal. 
 For this purpose (t) the Bill of Lading is Evidence to the 
 extent of it, if signed by the Master or Mate, and of the 
 Consignee's interest; (u) but if there are the words, 
 " Contents unknown," also signed by them, so that they 
 do not charge themselves with the receipt of any goods in 
 particular, the Bill of Lading is no Evidence either of the 
 quantity or value of the goods, or of the interest of the 
 Consignee. But though this may be a summary mode of 
 proof of interest, the Plaintiff may prove the actual ship- 
 ping of the goods on board, and the value of them, which 
 will be sufficient to support that averment. This may be 
 done by witnesses who knew of such shipment having 
 been made, and of its value. 
 
 4. The sailing of the Ship on the voyage insured, is 
 
 (r) 4 East. 430. () 5 Term Rep. 712. 
 
 (0 1 Esp. N. P. C. 373. () 3 Taunt. 303.
 
 38 Of the Evidence in Actions [CHAP. II. 
 
 next to be proved; but as the voyage is always from a 
 Place to some other Port or Place, and the time of her 
 sailing is material, these facts are also necessary to be 
 proved. These facts are generally proved by the Master, 
 Supercargo, or some of the Ship's crew, who, from being 
 on board, are able to speak to the facts : but the loss must 
 be proved to have taken place by the means described in 
 the Declaration ; as if the loss is stated in the Declaration 
 to have arisen from Capture, it would be a variance if 
 proved that it was by perils of the sea, and would not sup- 
 port the Declaration. 
 
 It, however, not unfrequently happens, that a Ship at 
 Sea founders, and all the Crew perish, so that there is no 
 Evidence to be had from any of those who had been on 
 board, and the Declaration states the loss to be by perils 
 of the Sea ; in that case, the averment of loss is supported 
 by Evidence to this effect, (v) That the ship sailed at a 
 particular time from the Port from whence she was In- 
 sured ; that the usual time taken to perform the Voyage 
 Insured was of a certain period ; and that though that time 
 is long since elapsed, she has never been hard of : this is 
 Evidence to go to the Jury of a total loss. 
 
 In actions on Policies of Insurance, (x) the Assured and 
 Insurers are bound to the strictest adherence to the terms 
 of the Policy; any concealment, misrepresentation, or 
 breach of the warranty given on the Policy, discharges it ; 
 and as these matters are rather matters of defence, than as 
 required to be proved on the part of the Plaintiff, I shall 
 
 (y) 2 Stra. 1199. 
 
 (or) 1 Esp. Dig. N.P. 81. and to page 89.
 
 CHAP. II.] On Policies of Insurance. 39 
 
 consider them under the head of Evidence for the De- 
 fendant. 
 
 2. Of settling the Evidence on the part of the Defendant in 
 Actions on Policies of Insurance. 
 
 Policies of Insurance are construed strictly, and any 
 failure on the part of the Plaintiff, as to any matter arising 
 under it, or any fraud, will vitiate it wholly. 
 
 The usual subjects of defence are 
 
 1. Concealment of Circumstances. Such as, in case the 
 Ship had sailed, when she was last heard of; (y) whether 
 she had met with bad weather and been forced into ano- 
 ther Port. In fact, the concealment of any circumstance 
 which may vary the risk insured against, will have the ef- 
 fect of avoiding the Policy. 
 
 2. A false representation, (z) Such as, that the Ship 
 was seen in a particular place or latitude, at a particular 
 day, which turns out to be otherwise ; that she had such 
 a Crew, or so many guns, which she had not ; and this, 
 though made by the Insurance Broker, shall avoid the Po- 
 licy, (a) 
 
 3. A false Warranty, (b] This only differs from a re- 
 presentation in this respect, that it makes part of the Po- 
 
 (t/) 1 Esp. Dig. N. P. 86. 3 Burr. 1909. 
 (z) 1 Esp. N. P. Dig. 81. Dougl. 247. 
 (a) 1 Campb. 530. 
 (d) 1 Esp. Dig. N. P. 82.
 
 
 40 Of the Evidence in Actions CHAP. II. 
 
 licy, it being written on it ; any defect or failure in the 
 circumstances so warranted, renders the Policy absolute- 
 ly void. Such as, if a Ship is warranted to be a neutral : 
 to carry so many guns : to be in Port when the Policy is 
 signed ; when, in fact, she has sailed : or to sail with Con- 
 voy when she has not done so. All these being falsified 
 by the Defendant are good Evidence to defeat the Action. 
 
 In preparing the Evidence as to these points, what the 
 warranty was, appears by the production of the Policy it- 
 self. But what circumstances were mentioned, or Docu- 
 ments shown to the Defendant, before he underwrote the 
 Policy, or what representations were made to him at the 
 time, is matter of viva voce proof. 
 
 What the representations were, and what Documents 
 were produced, the Broker who effected the Policy is the 
 usual witness to prove ; but as he is, for the most part, fa- 
 vourable to the Insured, and may state the representations 
 made by himself differently for the truth, he may be con- 
 tradicted, or Evidence in chief be given by Persons who 
 heard it, or who knew of the representations made to the 
 first Underwriter on the Policy, which is Evidence of the 
 actual representation made by the Broker when the Poli- 
 cy was first underwritten, (c) 
 
 If the facts turn out to be different from the representa- 
 tion, it avoids the Policy ; but those facts are matters of 
 positive Evidence. 
 
 Thus, the Defendant may prove, that the Ship repre- 
 sented to be in Port, had^ in fact, sailed some days before ; 
 
 (c) 3 Burr. 1361.
 
 CHAP. II.] On Policies of Insurance. 41 
 
 that she had met with a gale of wind, by which her tim- 
 bers were strained ; (d) that, though represented to have 
 a certain Crew, she had not so many on board. It is im- 
 possible to enumerate all the circumstances at length, 
 forming matter of defence ; it is sufficient to observp, that- 
 it is a contract strictissimi juris, and good faith in the en- 
 tering into it, and in the performance of it, are always re- 
 quired ; therefore, the smallest deviation, except for good 
 cause, from the track of the voyage, avoids the Policy. 
 This deviation may be proved by any one on board, or 
 by Persons on board another Ship who saw her out of her 
 latitude and course of the voyage. But, independently 
 of express contract, there is this implied ; one, that the 
 Ship at the commencement of the voyage was sea- worthy: 
 properly documented t for the voyage: of the country 
 described in the Policy, if not an English vessel. The 
 fact of sea- worthiness is usually proved by calling Ship- 
 builders, or persons acquainted with Shipping, to speak to 
 the fact. 
 
 But, it should be observed, that the Protest of the Cap- 
 tain is in no case Evidence of the facts contained in it, 
 nor are the written opinions of Persons who surveyed the 
 Ship, as to her sea-worthinesss. 
 
 In questions concerning losses, the Sentences of Courts 
 of Foreign Judicature are good Evidence, and are given 
 in Evidence by producing copies of the Judgment under 
 the Seal of the Court, (e) 
 
 With respect to viva voce Evidence. 
 
 (d) i Esp. Dig. N. P. 80. 
 
 CO 4 Esp. N. P. C. 228. Vid. Esp. Dig. N. P. 177. 
 
 F
 
 42 Of the Evidence in Actions [C H A P . II 
 
 1. The Consignee of the Cargo is a good witness to 
 prove the interest. (/*) 
 
 2. To disprove Barratry, the Master of the Vessel is 
 4 an* admissible witness, unless released by the .under- 
 writer, (g) 
 
 3. If the sea-worthiness of a Vessel is disputed in an 
 Action on the Policy, (A) the best Evidence is, either that 
 of the Persons who repaired her before the voyage, or 
 who surveyed her before she sailed : but the Captain, or 
 any of the Crew, may prove the same ; but it must, in 
 all cases, be observed, that it is sufficient to prove her 
 sea- worthy at the time of her sailing, (i) 
 
 II. Having now stated how the evidence is to be set- 
 tled in Actions on Bills of Exchange, Promissory Notes, 
 and Policies of Insurance, which are contracts wholly in 
 writing, I shall proceed to consider the Evidence neces- 
 sary in this Action, on Contracts, which may be either by 
 parol, or in Writing ; and point out in what manner it is to 
 be settled for Trial. 
 
 The principal heads under this head are Actions. 1. 
 
 (/) 2 Esp. Dig. N. P. 175. 3 Taunt. 303. 
 (#) 1 Esp. N. P. C. 339. 
 (A) 1 Esp. Dig. N. P. 89. 
 (0 Park. Ins. 220.
 
 CHAP. II,] for Use and Occupation. 43 
 
 For Use and Occupation. 2. On Special Agreements. 
 3. On Contracts of Sale. 4. On the common Counts in 
 this Action. 
 
 1. Of settling the Evidence in Assumpsit for Use and 
 
 Occupation. 
 
 First, on the part of the Plaintiff. 
 
 This form of Action is now used in place of the Ac- 
 tion of Debt for Rent ; but the latter Action still may be 
 maintained ; (/<*) and in settling the Evidence, these rules 
 are to be observed. 
 
 1. Where the Defendant has become Tenant to the 
 Plaintiff, (/) by a taking from him by a direct contract, no 
 further Evidence is required on the part of the Plaintiff, 
 than to prove : That he let the Premises to the Defend- 
 ant, whether they are Lands, Houses, Lodgings, or Te- 
 nements of any description, at a certain Rent, or that he 
 let him into possession of them as Tenant ; That the De- 
 fendant occupied them as such, for the time for which 
 the Plaintiff seeks to recover Rent. He must then prove 
 the amount of the Rent reserved, if there was an agreement 
 for the Rent to be paid; or if not, what is the yearly value 
 of the Premises ; or if let by the quarter, month, or week, 
 the value for that time. 
 
 But, if the Defendant has ever paid Rent to the Plain- 
 tiff,' proof of that alone establishes the Plaintiff's right to 
 recover, (m) 
 
 (*) 6 Term Rep 62. (0 1 Esp. Dig. N. P. 29. 
 
 (m) Peake N. P. C. 192. 2 Taunt 147.
 
 44 Of the Evidence in Actions [CHAP. II. 
 
 2. Such is the case where the Plaintiff has himself let 
 the Premises to the Defendant, or where the Defendant 
 has paid him Rent ; but if the Plaintiff claims as Heir, 
 Executor, or Administrator, Devisee, or Assignee, of the 
 first Lessor, and the Defendant has never paid him Rent, 
 then further Evidence is required to establish his title to 
 the Rent. In all these cases, therefore, the Plaintiff must 
 first show : That the Defendant held, as Tenant, to the 
 Person under whom he derives title, by the same Evi- 
 dence, as above stated, where the Action is by the origi- 
 nal Lessor. Having done so, if the Plaintiff's title is as 
 Heir, he must prove his ancestor's death, and that he is 
 Heir to him ; this is where the Lessor is seized in fee. If 
 the Plaintiff claims as Executor or Administrator, he must 
 make profert of the Probate, or Letters of Administration, 
 which will be sufficient, if there is no Plea of ne unques 
 Executor or Administrator ', but, if there is, the Probate 
 or Letters testamentary must be produced. This is the 
 case where the Lessor was himself only entitled as Lessee 
 for years to some other Person, in which case the term 
 passes to the Executor or Administrator of the deceased. 
 
 3. If a Devisee is the Plaintiff, and the Lessor was Te- 
 nant in fee, the Plaintiff must prove the Testator's will by 
 calling the witnesses ; for which see post, Chapter of 
 Ejectment. But, if the Plaintiff is a Legatee, and the de- 
 ceased had himself but a term for years in the Premises, 
 which he has bequeathed to the Plaintiff, he must produce 
 the Probate of the Testator's will, and show the consent 
 of the Executor to the Devise, as necessary to give him a 
 title to the Lease, by virtue of which he claims to be en- 
 titled to the Rent.
 
 CHAP. II.] for Use and Occupation. 45 
 
 4. Tfthe Plaintiff claims as Assignee of the Lessor, he 
 must make out a regular title from him, by proving the 
 several Deeds and Conveyances giving him title. But, it 
 must be observed, as a general rule in settling Evidence 
 for Plaintiffs, that proof of title is only required, where the 
 Plaintiff is a Person whom the Defendant has never re- 
 cognised as his Lessor ; for, as has been observed, where 
 the Action is between the originally contracting Parties, 
 (n) proof of the taking of .the Premises from the Plaintiff, 
 and the occupation by the Defendant by his permission, 
 or if the Defendant has paid him Rent, or if a distress has 
 been made on the Defendant for Rent, and it has been le- 
 vied under it; all these cases, on being proved, are sufficient 
 Evidence of the Plaintiff's title, and the Defendant cannot 
 call for any other, and is himself precluded from impeach- 
 ing it. (o) 
 
 5. All these facts last stated, may be proved by witness- 
 es ; but, if there was any agreement in writing, not by Deed, 
 between the Parties, specifying the letting, the term, the 
 rent, &c. the Plaintiff may give this in Evidence by Stat. 
 11 Geo. 2. c. 19. under the general Count in Assump- 
 sit : *' That the Defendant was indebted to the Plaintiff in 
 /. for the use and occupation of a certain dwelling- 
 house, e. g. before that time had, used, occupied, and 
 enjoyed by the Defendant by the Plaintiff's permission, 
 &c." But, if the Plaintiff proves the letting of the Pre- 
 mises to the Defendant, it is not required of him to prove, 
 that the Defendant actually entered and occupied them ; 
 it is sufficient that the Defendant might have done so if 
 he pleased, and was not prevented by the Plaintiff. 
 
 () 1 Esp. Dig. N. P. 31. 
 
 (o) 3 Campb. 372. 5. T. Rep. 5.
 
 40 Of the Evidence in Actions [CHAP. II. 
 
 2. Of the Evidence on the part of the Defendant in As- 
 sumpsit for Use and Occupation. 
 
 This is what he may give in Evidence under the Plea 
 of non-assumpsit. He may show 
 
 That the Premises were let for an unlawful purpose, as 
 for a Brothel, for example ; and the Plaintiff, in such case, 
 cannot recover, (p) 
 
 That, though the Defendant entered and occupied the 
 Premises, (q] it was not in the character of a Tenant, but 
 that he was let into possession on a treaty for a sale of 
 them, which was not carried into effect, (r) 
 
 That the Lessor was bound to put the 'Premises into 
 repair before the Defendant took possession, which he had 
 not done, and that they were not habitable. But it will 
 not be a defence, that the Premises were burnt down, (s) 
 
 It has however been held, that though the Defendant, 
 the Lessee, cannot controvert his Lessor's title'; yet he may 
 show, that it is at an end, and that he has been called upon 
 to attorn to another, (t) So he may show that the Lessor 
 was Executor durante minore (State of A. B. and that A. 
 B. became of full age and claimed the Rent : that the land 
 was Copyhold, and forfeited to the Lord of the Manor, 
 to whom he paid Rent : but in such case the Defendant 
 must go further, and show that the Person from whom he 
 
 (A) 1 Esp. N. P. C. 13. (?) Peake, N. P. C. 192. 
 
 (r) 2 Taunt. 147. (*) 4 Taunt. 45. 
 
 (?) 1 Esp. Dig. N. P. 31.
 
 CHAP, ll.] On Special Agreements. 47 
 
 took the Premises was informed of it, and that he re- 
 nounced the Tenancy, and entered into a new contract 
 with the Person under whom he then claims, (u) 
 
 All these matters are proveable by vivd voce Evidence. 
 
 2. Of settling the Evidence in Actions on Special Agree- 
 
 i. lents. 
 
 1. On the part of the Plaintiff. 
 
 Special agreements are the objects of this Action of 
 Assumpsit, and such agreements may be either verbal or 
 in writing, on either of which that Action is maintainable, 
 except in cases under the Statute of Trauds, on which no 
 Action can be brought unless they are in writing. These 
 cases are : 1. Where it is to charge an Executor or Ad- 
 ministrator to answer damages out of his own estate. 
 2. To charge Defendant for the debt, default, or miscar- 
 riage of another. 3. Where the agreement is in consi- 
 deration of Marriage. 4. Where it is on a contract for 
 the. sale of Lands, Tenements, or Hereditaments, or any 
 interest in them. 5. Where the agreement is not to be 
 carried into effect within the year. 
 
 The decisions on which will be found in the law of 
 Nisi Prius, as referred to in the margin, (x] 
 
 Where the Action is on a special agreement -which has 
 been reduced into writing, it is first necessary, in settling 
 the Evidence, to see that it is properly stamped, and that 
 
 (*0 2 Campb. 1 1. (or) Esp. Dig, N. P. 123, et ultra.
 
 48 Of the Evidence in Actions [CHAP. II. 
 
 is necessary, whether the agreement is specially declared 
 on, or it is a Paper to be given in Evidence, in any way, 
 in support of the agreement on which the Plaintiff seeks to 
 recover. 
 
 But on Agreements in these cases following no Stamp 
 is required, (z) 
 
 1. If the Action is on agreement or memorandum for 
 granting a Lease at rack rent, of any Lands or Tenements 
 under the yearly rent of 51. 
 
 2. If the memorandum or agreement is for the hire of 
 any labourer, manufacturer, or menial servant. 
 
 3. If it is a memorandum, letter, or agreement made 
 for, or relating to any sale of goods, wares, or merchan- 
 dise. 
 
 4. If it is a 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 Bri- 
 tain. 
 
 5. On any letter containing any agreement in respect of 
 any merchandise, or evidence of such an agreement as shall 
 pass by post, between merchants and other persons, car- 
 rying on trade or commerce in Great Britain, and residing, 
 and actually being, at the time of sending such letters, at 
 the distance of 50 miles from each other. 
 
 6. On any label or memorandum containing the heads 
 
 (z) Vide Stat. 48 Geo. 3. 149.
 
 CHAP. II.] On Special Agreements. 49 
 
 of insurance to be made by the Royal Exchange or Lon- 
 don Assurance Company. 
 
 In all these cases, any paper writing relating to them 
 may be given in Evidence without a Stamp. 
 
 Where there is a special agreement, and the Plaintiff 
 seeks to recover damages for the breach of it ; as long as 
 it is executory, (a) that is, as long as it is unperformed in 
 toto, the Plaintiff is bound to declare on it ; but if it has been 
 performed, or has been rescinded, or prevented from be- 
 ing carried into effect by the other Party, (6) then the 
 Plaintiff may declare generally, and give the written In- 
 strument in Evidence ; as, for example, if a Sailor was to 
 enter into a written agreement for a voyage, and the Cap- 
 tain refused to let him serve, or sailed without him, (c) by 
 which he lost the whole, or any part of the voyage, and an 
 Action is brought by the Sailor, the Plaintiff must declare 
 on the agreement, and go for the special loss : but if he had 
 performed the voyage, he might declare generally for work 
 and labour. 
 
 1. If the Declaration is special on the agreement. 
 
 In settling Evidence in Actions on special agreements, 
 where the Plaintiff' declares on the agreement, great care is 
 required ; (d) every averment in the Declaration must be 
 proved precisely as averred in it, and the smallest varia- 
 
 (a) Esp. Dig. N. P. 160. Doug!. 24. 1 Term Rep. 134. 
 (A) 2 East. 147. 7 Term Rep. 181. 
 (c) Per Eyre C. J. 1 Bos. & Pull. 397, 
 f d) Esp. Di^. N. P. 16?.
 
 50 Of the Evidence m Actions [CHAP. II. 
 
 tion in a material part is fatal, (e) This, in the case of spe- 
 cial agreements which have not been reduced into writing, 
 often happens ; but, when the agreement is in writing, 
 as the Declaration is drawn from it, there is little danger of 
 a variance in proving the contract to be as laid in the De- 
 claration; the failure, in that case, can only take place where 
 there is a failure of proof of the breach : If the contract or 
 agreement is by parol, there is danger, not only as to proof 
 of the agreement, but also of the breach. 
 
 1. At the Trial, the course of Evidence is this : the 
 agreement, if in writing, must be produced ; and if there 
 be a subscribing witness to it, he must be called to prove it. 
 
 If the agreement was by parol, a witness, who was pre- 
 sent at the making of it, must be called to prove what it 
 was ; in both cases the agreement produced, or that which 
 is so proved by a witness, must be found to correspond 
 with that laid in the Declaration ; if it does not, the Plain- 
 tiff' will be nonsuited. 
 
 Thus, for example, where the Plaintiff declared on an 
 agreement " to deliver 40 sacks of corn on a particular 
 day," and the agreement was proved to be 40 or 50 ; that 
 was held to be a clear variance, (f) 
 
 2. Having proved the agreement, the next piece of Evi- 
 dence which the Plaintiff must give, is, in case any thing 
 was to be previously done by himself, to prove that he has 
 done it. 
 
 As if the Plaintiff declared on a breach of an agreement, 
 (e) 4 Taunt. 285. (/) Perry v. Porter, 2 East. 2.
 
 CHAP. II.] On Special Agreements. 51 
 
 by which the Defendant promised to pay him a sum of 
 money in consideration of his executing to him a general 
 release, the Plaintiff must aver and prove, that he either did 
 execute such a release, or was ready to do so ; for, until 
 he does so, he has no cause of Action, (g] 
 
 The best direction on this point, is to observe carefully 
 the averments in the Declaration ; for, unless all that is 
 necessary to give the Plaintiif a right of Action tinder the 
 agreement, is averred in it, the Judgment will be arrested 
 if the Plaintiff has a verdict, and all these must be proved. 
 
 But, in some cases, the Plaintiff must go further than 
 averring a performance, or readiness to perform his part ; 
 he must show that he had a right to do that which he pro- 
 mised, and which is the foundation of the Defendant's pro- 
 mise : as, if he declares on the Defendant's promise to pay 
 a sum of money on the assignment of a Lease, he must give 
 Evidence of his title to the Lease, (h] 
 
 3. The third matter of Evidence which the Plaintiff 
 must prove is, the breach by the Defendant. Thus, if the 
 Defendant was to build a house for the Plaintiff by a cer- 
 tain day, he should call a witness to prove that no house 
 was built ; but this Evidence is unnecessary, where it lies 
 on the Defendant to prove performance of his part ; as if 
 the Declaration was an agreement that the Defendant was 
 to pay 100 /. on the Delivery of 50 quarters of Corn at a 
 particular place. It is sufficient for the Plaintiff to prove 
 the delivery at the place, and it lies on the Defendant to 
 prove the payment. 
 
 (S] 2 Burr. 899. (A) Dougl. 598. 2 Marsh. Rep. 332.
 
 52 Of the Evidence in Actions [CHAP. II. 
 
 4. The last piece of Evidence required, on the part of 
 the Plaintiff, is of the Damages. These are either general 
 or special, as laid in the Declaration, and are either liqui- 
 dated or unliquidated. If the agreement states the sum 
 agreed on as damages for the breach of it, the Plaintiff can 
 only recover the amount, and nothing more is required than 
 to prove the agreement and breach ; but if no sum is spe- 
 cified, so that the damages are unliquidated, then the Plain- 
 tiff must' prove the damages, as laid in the Declaration, to 
 such an extent as he can. 
 
 Thus, for example, if Plaintiff declares on a breach of 
 agreement by the Defendant to deliver certain goods by a 
 particular day, and then avers as special damage " that 
 he was deprived of the opportunity of selling them to ad- 
 vantage," he may give in Evidence, that a particular per- 
 son would have purchased them at an advanced price, and 
 call that person to prove it, or that there was a considerable 
 rise in the market for such goods, and where he could have 
 sold them to advantage , and then what he lost on the Sale, 
 he may recover in damages. 
 
 2 If the Declaration is general. 
 
 If it is for work and labour, or money had and received 
 generally, though founded on the agreement : the Plaintiff, 
 in that case, must be prepared to prove the agreement, and 
 also where any thing is to be previously done by himself, to 
 prove, that it has been performed by him in all respects ; 
 as, e. g. if the Plaintiff was to receive a sum of money on 
 doing certain work by a certain time ; (i) when he has done 
 
 (0 Poulter v . Killingbeck, 1 Bos. 8c Pull, 397.
 
 CHAP. II.] On Special Agreements. 53 
 
 it, he may declare generally for work and labour, and give 
 the agreement and proof of his performance in Evidence 
 under such Count. 
 
 So he may declare generally on these Counts, if the 
 agreement has been rescinded, or if the Defendant is unable 
 to perform what he undertook, or by his own act has pre- 
 vented the Plaintiff from doing his part : in all which cases, 
 the Plaintiff must prove the agreement and the facts stated. 
 
 Thus, if the Action is to recover a deposite made on a 
 Sale of goods by Auction, where the Auctioneer is unable 
 to deliver the things sold ; or if made on the Sale of an Es- 
 tate, the title to which is defective, so that the Buyer is 
 not compellable to complete the purchase, or the Seller is 
 unable to complete it within the time specified ; in all 
 those cases, the Plaintiff may declare for money had and 
 received, and at the Trial must prove the Sale by Auction : 
 the particulars delivered by the Auctioneer : that he was 
 declared the best Bidder, and that he paid the sum for 
 which the Action is brought, as a deposite : this is usually 
 done by the Auctioneer's receipt and proof of his hand- 
 writing. The Particulars are sufficient Evidence of the 
 terms of the Sale ; and if they are not complied with on 
 the part of the Auctioneer, the Party has an immediate 
 right to recover his deposite by the Action for money had 
 and received ; but if the thing sold was to be delivered by 
 a given time, or a good title shown to an Estate sold with- 
 in a given period, the Plaintiff should prove that he appli- 
 ed for the thing sold, or an abstract of the title to the Es- 
 sate at the time specified in the Particular, and that he 
 could obtain neither. So if he discovers that the Seller had 
 no title to what the Auctioneer sold, as if the Auctioneer
 
 54 Of the Evidence in Actions [C HA p. II. 
 
 furnished an abstract to the Seller's title to the Estate sold 
 by Auction, and it appears on the face of it that the title is 
 bad, the Buyer may sue for and recover his deposite. 
 
 2. Of the Evidence for the Defendant in Actions on Special 
 Agreements. 
 
 The best positive Evidence, in answer to the Plain- 
 tiff's case, which the Defendant can give, is perform- 
 ance, or that he was willing to perform his part, and offered 
 to do it ; and that the Plaintiff refused to receive it ; as 
 if the Action was grounded on the non-performance by the 
 Defendant of an agreement, by which the Defendant was 
 to assign a Lease to the Plaintiff, and which the Plaintiff 
 refused to accept of on the ground of a want of title ; the 
 Defendant may go into Evidence to show that he had a 
 good title ; and if he had, the Plaintiff had no right of 
 Action. 
 
 So if the Plaintiff declares generally, and there is a 
 special agreement. As the Plaintiff should declare on the 
 agreement as long as it is executory; by showing the agree- 
 ment, the Defendant will nonsuit the Plaintiff; but, as has 
 been before observed, the Plaintiff may show, that the 
 agreement was rescinded or performed on his part. 
 
 So if the Plaintiff declares for non-performance of an 
 agreement, the Defendant may show that he was prevented 
 from performing it by the Plaintiff himself; as if the De- 
 fendant was to finish a house for the Plaintiff by a given 
 time, the Plaintiff finding timber, Defendant may show that 
 the Plaintiff refused to do so.
 
 CHAP. II.] Arising on Sales. 55 
 
 3. Of settling the Evidence in Actions ofAssumpsit on con- 
 tracts of Sale. 
 
 These Actions are, 1. For the price of the things sold, 
 which is recovered under the Count for goods sold and de- 
 livered ; or, 2. To recover back the price paid for the thing 
 sold, by reason of the defect of tide in the Seller ; or of 
 Fraud in the Sale ; as, by a false warranty respecting it ; 
 or, 3. To recover special damages for the non-delivery 
 of it. 
 
 The first of these Actions, as it falls under the head of 
 Assumpsit for goods sold and delivered ; how the Evidence 
 as to it is to be settled, will be treated of under that general 
 head hereafter. 
 
 2. The second of these heads is Assumpsit for money 
 had and received, (j) This Action is maintainable where 
 there has been any Fraud in the sale by the Seller, and the 
 Buyer has paid his money as the price of the thing bought ; 
 he may, in that case, return the thing bought to the Sel- 
 ler, and declare so in this Action to recover back his mo- 
 ney. 
 
 As if a Horse be warranted sound, which proves to be 
 unsound : merchandise warranted to be of a particular 
 quality or description, which turns out to be otherwise, 
 and the Buyer has paid for it ; on returning the Horse or 
 the goods, the law gives him the remedy, by Assumpsit 
 for money had and received, to recover back the money he 
 so paid. 
 
 O') l Esp. Dig. N. P. 13.
 
 56 Of the Evidence in Actions [CHAP II. 
 
 When the Action is so brought, .the contract of Sale 
 must be at an end, or rescinded, and these facts must be 
 proved at the Trial; the Plaintiff must first prove the con- 
 tract of Sale, and the price paid. 2. The warranty or re- 
 presentation of the thing sold given at the time of Sale. 
 3. That the warranty or representation so made was un- 
 true, and falsify it by calling witnesses to prove it to be so ; 
 and, lastly, the Plaintiff must prove that the contract was 
 rescinded or at an end, that is, that he either returned the 
 things sold or offered to do so, and that the Defendant ei- 
 ther received them back, or refused to accept of them. 
 
 Thus, in the case of AssumjiHt, to recover back the 
 price of a Horse warranted soun-d, the Plaintiff must prove 
 the Sale, and that at the time of the Sale the Horse was 
 warranted sound, and the price he paid ; he should then 
 call witnesses to prove that the Horse was unsound ; and, 
 lastly, that he either returned him to the Defendant, or of- 
 fered to do so, and that the Defendant refused to accept of 
 him. 
 
 In these cases, (k) the receipt for the price usually spe- 
 cifies the sum as paid " for a Horse warranted sound" and 
 that receipt is received as sufficient Evidence of the war- 
 ranty, as well as of the payment of the money by the Plain- 
 tiff to the Defendant ; so that, on proving the Defendant's 
 hand-writing to the receipt, the Plaintiff is only required 
 further to prove the unsoundness of the Horse, the return 
 or an offer to return him, and the Defendant's refusal to 
 receive him. 
 
 (*) 1 Campb. 387.
 
 CHAP. II.] Arising on Sales. 57 
 
 It is also necessary to attend to the circumstances under 
 which Sales take place ; as Sales by sample or written con- 
 tract ; or Sales by the intervention of a Factor or Broker : 
 as the Evidence varies accordingly, and must be therefore 
 attended to. 
 
 When the Sale is by sample, (/) the bulk delivered must 
 correspond with the sample, or the Sale is void, for it is 
 a Fraud on the Buyer. In every case of this description, 
 the Plaintiff should be prepared with a witness to prove, 
 that the sample sold by, was fairly taken from the bulk, 
 and should have some to produce in Court, to show that 
 they correspond. This Evidence is, however, not required 
 unless the Defendant rests his defence on that ground : 
 otherwise the only Evidence which is required of the 
 Plaintiff is of the general sale and delivery of the goods. 
 
 If the Defendant sets up that defence, that the sample dif- 
 fers from the bulk, he must produce the sample given at 
 the time of the Sale, and prove it to be that which was so 
 given. He should then produce part of the bulk deliver- 
 ed, and prove that it was fairly taken : he should then call 
 witnesses acquainted with the article sold, who will state 
 their opinion, as to their not being of the same quality or 
 description, and if they are believed, the Plaintiff must fail. 
 It is obvious, therefore, that where this defence is expect- 
 ed, the Plaintiff must be prepared to show that they are 
 the same, by similar Evidence. 
 
 If the Sale is by written contract^ (m} the delivery and 
 description of the things sold must accurately correspond 
 
 (0 2 East. 314. (m) 3 Campb. 462. 
 
 H
 
 
 58 Of the Evidence in Actions [CHAP. II. 
 
 with the contract, nor will it be considered as an answer, 
 to the goods delivered not agreeing with the contract, that 
 the Plaintiff had a sample also after the contract made, and 
 was satisfied with it. 
 
 When the Sale is by the intervention of a Broker, or 
 Agent, by whom the bargain is made, he is a good witness 
 for either side, and he should be called, (n) 
 
 Another class of cases ranging under this head, are 
 those of Sales by Auction. Assumpsit for money had and 
 received being the proper form of Action to recover back 
 a deposite made on such Sale, as on the Sale of an Estate, 
 for example, where it turns out, that the Seller had no title 
 to the thing sold, or was not prepared to complete the pur- 
 chase at the time specified in the particulars of Sale. 
 
 The Evidence required, in this case, has been before 
 mentioned in page 52. 
 
 3, The third description of cases arising on Sales differs 
 from the second in this, that that is indebitatus assumpsit, 
 being to recover back money paid : this is Assumpsit ge- 
 nerally, and the Plaintiff seeks in the latter Action to re- 
 cover special damage by reason of the Defendant not 
 performing his contract of Sale, and that must be laid in 
 the Declaration. Thus, for example, in the last case, of 
 the Sale of an Estate by Auction, if the Plaintiff declares 
 in indebitatus assumpsit, generally, for money had and re- 
 ceived, he can recover his deposite only; but if he declares 
 on the contract of Sale made "by the Defendant, by which 
 
 (n} 3 Wils. 40.
 
 CHAP. I!.] Arising on Sales. 59 
 
 he was declared the best Bidder at the Auction, and in 
 consequence paid his deposite, pursuant to the particu- 
 lars, he may go, after assigning the breach of performance 
 by the Defendant, for special damage, as, that he was put 
 to great expense in examining the title, in journeys un- 
 dertaken on account of the Estate, and for the interest of 
 money ; and then, having proved the several matters stated 
 In that case, (page 52) he may go into Evidence of these 
 facts of special damage distinctly, and he can recover da- 
 mages accordingly, but they must be stated in the De- 
 claration. 
 
 4. Of settling the Evidence under the common Counts in 
 Assumpsit. 
 
 I shall now consider the rules to be observed in the set- 
 tling of Evidence on the common Counts of Assumpsit, 
 as far as .it respects general principles, the particular cases 
 which occur being too numerous to find a place here : but 
 it will be here necessary to state a few of them by way of 
 example, to point out how Evidence is to be settled in si- 
 milar instances. These Counts are in Assumpsit, 1. For 
 money had and received. 2. For money lent and ad- 
 vanced. 3. For money paid to the Defendant's use. 4* 
 For work and labour. 5. For goods sold and delivered ; 
 and, lastly, on an Account stated, 
 
 1. Of the Evidence on the Count in Assumpsit for mo- 
 ney had and received. 
 
 This is a very general head, and lies in every case in 
 which a person has received or obtained possession of the 
 money of others, which he has retained or not paid over, and
 
 * 
 
 60 Of the Evidence in Actions [CHAP. IL 
 
 which he has no legal title to keep : the cases arising un- 
 der it must be, therefore, as various as are human trans- 
 actions, and connected with the receipt or payment of 
 money. The general rule, therefore, as to settling the 
 Evidence, to enable the Plaintiff to recover on this Count 
 is, that he must give the whole transaction in Evidence ; i. e. 
 he must prove the circumstances under which the Defend- 
 ant received or got possession of the money, the amount, 
 and then prove that he has no right to keep it, but that it 
 belongs to the Plaintiff, who ought to receive it. I shall 
 exemplify this general position by cases which range under 
 the different grounds of this head of Assumpsit, which re- 
 quire no Evidence of any promise on the Defendant's part 
 to pay, but are founded on equitable claims on the Plain- 
 tiff's part, which the law raises in his favour. 
 
 1. The Plaintiff may under this Count recover money 
 paid to the Defendant, (0) where the consideration for 
 which he paid it has faikd, and for which the Defendant 
 received it. (p) Thus, where money was paid by the 
 Plaintiff to the Defendant, as the price of an Annuity 
 granted to him by the Defendant, and the latter set the 
 Annuity aside : the Plaintiff recovered back the money 
 for it was unjust that the Defendant, should keep the money 
 paid for the Annuity, when it had been set aside by the 
 Defendant himself. 
 
 In such a case, it would be necessary for the Plaintiff 
 to prove the execution of the Annuity Deed by the Defen- 
 dant to him, by calling the subscribing witness : the pay- 
 ment of the consideration would be also necessary to be 
 proved ; but that would appear by the consideration being 
 
 (o) 1 Esp. Dig. N. P. 2. ' (/i) 1 Term Rep. 732. 6 East. 241.
 
 CHAT. II.] Of Assumpsit for Money paid. 61 
 
 recited in the Deed and the- Receipt indorsed, to which 
 the Defendant's hand- writing should be proved. It would 
 then be necessary to prove that the Annuity was set aside 
 by the Court, and the Rule obtained by the Defendant 
 for that purpose should have been produced, and P>i- 
 clence given that it was obtained by him : this may be 
 done by producing an Office copy of the Rule obtained, 
 and the Affidavit on which it was obtained. It will 
 appear, by the Rule being made absolute for setting it 
 aside, that the Plaintiff could not recover any future arrears 
 of the Annuity for which he had paid his money, and that 
 Defendant therefore could have no title to keep it. 
 
 In settling the Evidence therefore, where the cause of 
 Action arises from the consideration having failed on 
 which the Plaintiff paid his money, the consideration must 
 be proved; and in doing so, it must be observed, that if 
 it was founded on any written contract or agreement, the 
 writing must be produced and proved : if it was by parol 
 only, it may be proved by a witness. 
 
 Thus, e. g. if the Plaintiff had paid to the Defendant a 
 sum of money in the presence of a witness, in considera- 
 tion of the Defendant's resigning to him a certain Place or 
 Situation, but which it was found afterwards the Defen- 
 dant would not be permitted to resign, or had no right to 
 sell ; the Plantiff may recover his money back by calling 
 the witness to the transaction, and showing that the Defen- 
 dant had not put him into the possession of the Place for 
 which he had paid his money. 
 
 But if the transaction arose on matter wherein there 
 was any written Instrument connected with it, that Instru- 
 ment must be produced.
 
 ft 
 
 * 
 
 Of the Evidence in Assumpsit. [CHAP. IL 
 
 As if the Plaintiff had discounted a Navy or other Bill 
 for the Defendant, which turned out to be forged, and he 
 brings his Action to recover the amount paid, (q) he can- 
 not recover by parol Evidence, that there was such a 
 transaction, without producing the Bill, or at least showing 
 that it was lost. The course of Evidence therefore for 
 the Plaintiff in that case, or in similar ones, necessarily is 
 this : to produce the Bill : to prove that he received it 
 from the Defendant for whom he discounted it, and that 
 he paid him on that account . He must then prove 
 that the Bill is forged, by calling witnesses who are ac- 
 quainted with the character or hand subscribed to the 
 Bill, or from some mark on the Bill which enables them 
 to swear that it is forged. If it is a private person's Bill, 
 persons acquainted with his character and hand-writing 
 must be called. If it is a public document, it is proved to 
 be a forgery, by calling a Clerk from that Office from 
 whence the Instrument or Bill purports to have issued, 
 whose business it is, to be acquainted with the signature 
 of those whose department it is to sign such Instruments 
 or Bills, or who are acquainted with the private marks 
 affixed to them, which enables them to detect forgeries. 
 
 2. If a person has paid money to another by mistake, 
 on discovering the error, he may recover it back under 
 
 the Count for money had and received, (r) 
 
 
 
 Where the Action is brought to recover money so paid, 
 (s) the Plaintiff must go into Evidence of the whole 
 transaction, and the circumstances under which he paid it j 
 
 (?) 5 Taunt. 488. 
 
 (r) I Esp. Dig. N. P. 3. 
 
 () I Term Rep. 343. 3 Maule and Selw. 344,
 
 CHAP. II.] for Money paid and expended. 63 
 
 and it must be clearly made out, that the payment was 
 made in consequence of the Plaintiff supposing something 
 to have taken place, or some fact to have happened, 
 which turns out to be otherwise than he supposed ; as if 
 an underwriter supposing a Ship to be lost, on which he 
 had underwritten a Policy, has paid as for a total loss, and 
 she afterwards returns to Port ; he has a right to recover 
 back his money, he having paid it under a belief that the 
 Ship had been lost. 
 
 In this case as in the preceding one, where the demand 
 is connected with any Instrument or Writing, it must be 
 produced : it would therefore, in that case, be necessary 
 for the Plaintiff to produce the Policy, to prove the adjust- 
 ment of it, and the payment by him made thereon, as 
 settled for a loss by perils of the Sea, and that he paid the 
 amount to the Defendant. 
 
 The other grounds of Action, on this Count, will be 
 found at length in all treatises on the laws of Nisi Prius. (t) 
 It lies to recover back money extorted or obtained by 
 oppression : paid to a person acting under a void authori- 
 ty : money embezzled or obtained by cheating, or given 
 to be applied to an illegal purpose : in all these cases, the 
 rules just laid down in the two instances given, are in every 
 respect applicable ; that is, the whole transaction must be 
 proved ; and if it has arisen from the intervention of any 
 Instrument in writing, it must be produced and proved, 
 as no parol Evidence of it can in such case be admitted. 
 
 One caution is, however to be strictly attended to in this 
 Action ; (u) that it must appear that the Plaintiff did not 
 
 (0 Esp. Dig. N. P. 3. et ultra. 
 
 () I Esp. Dig. N. P. 119. 1 Esp. N. P. C. 279. 7. East. 269.
 
 64 Of the Evidence m Assumpsit J^CHAP. II. 
 
 pay to the Defendant the money voluntarily ; as if he did, 
 though he might have resisted the payment with effect, he 
 cannot, after so voluntarily paying it, recover it back, for 
 that would tend to circuity of Actions. 
 
 2. Of settling the Evidence on the general Count for 
 money paid, laid out, and expended to Defendant's use. 
 
 The next head of Evidence respects this head, as to 
 which the general rule just laid down with equal force 
 applies ; that no man can, of his own head, pay money on 
 the account of another, so as to make it a ground of 
 Action, unless it has been paid at his request : by his 
 direction : or is money which he is compellable by law to 
 pay on Defendant's account, by reason of some legal pro- 
 ceedings, or some legal claim or demand, which he could 
 not resist. 
 
 It will therefore not entitle the Plaintiff to recover in 
 this Action, to prove a payment made by him on account 
 of the Defendant ; he must go further, and show a request, 
 or order by the Defendant to do so, which may be done, 
 either by a witness, or by writing. 
 
 Or he may give in Evidence, that he was compelled by 
 law to pay it. 
 
 As where an under Tenant's goods are distrained on 
 account of Rent due to the head Landlord, and to redeem 
 his goods, he pays the rent in arrear ; on proving the 
 distress made :(x) the taking of his goods : that it was 
 
 (JT) 8 Term Rep. 308.
 
 CHAP. II.] for Money 'lent. 65 
 
 for Rent due by the Defendant, and that he to redeem his 
 goods paid the Rent due by the Defendant ; all of which 
 may be proved by the head Landlord, or the Broker he has 
 employed : the Plaintiff may recover the whole money 
 so paid. 
 
 Under this head falls the case of payment of money by 
 Sureties for their Principal, as under Bonds or Recogni- 
 zances, (y] A surety, who pays the whole sum for which 
 he was jointly bound, may recover the whole against the 
 principal, or a proportionate part from his co-security. 
 
 This head is more fully'treated of post, pag. 70. 
 3. Of the Evidence on the Count for money lent. 
 
 It is necessary to observe on this Count, that the mere 
 proof of the Defendant receiving a sum of money from 
 the Plaintiff will not support this Count ; the money must 
 be proved to have been advanced to him as a loan y for 
 otherwise it is open to the presumption, that it was given 
 for some other purpose. This is provable either by a 
 witness, or by letter or other writing, or by a Promissory 
 Note ; all of which are good Evidence under this Count, 
 on proving Defendant's hand-writing. 
 
 4. Of settling the Evidence on the Count for goods sold 
 and delivered. 
 
 To support this Count, as in the last, the proof of the 
 
 (y) Per Buller, J. 2 Term Rep. 105. 
 T
 
 66 Of the Evidence in Assurnpsit [CHAP. II. 
 
 
 
 mere delivery of Goods to the Defendant by the Plaintiff, 
 is not sufficient, without Evidence of a contract of Sale. 
 To support this,, however, the Plaintiff is not called upon 
 to prove an actual bargain for the specific goods for which 
 the Action is brought ; it will be sufficient to prove a 
 dealing in the way of the trade or business of the parties : 
 as if a Factor delivers goods to a Defendant in which he 
 deals as a merchant or shopkeeper, a sufficient presump- 
 tion is thereby raised, that they were sold to him, and 
 that he is liable ; evidence therefore to that effect is suffi- 
 cient : but if there is no such connection in their dealing, 
 the Plaintiff must show an order or contract for them, as 
 well as a delivery of them to th'e Defendant. 
 
 This is matter of Evidence as to the contract or order, 
 and may be proved either by writing or parol ; the fact of 
 the delivery must be proved by witnesses, and the value 
 of the goods delivered, by similar proof. 
 
 As it is essential to prove the delivery of the thing sold 
 to the Buyer, [z] these points of Evidence are to be at- 
 tended to. 1. A delivery to the Buyer himself, or at his 
 own house, is in all cases sufficient. 2. A delivery 
 according to his order is good if the order is produced or 
 proved, and the delivery of the goods proved pursuant to 
 it, as to be sent by a particular Stage coach or Wagon, 
 or left at a particular place, (a) 3. Where the Buyer or 
 Seller lives at a distance, and the former orders goods to 
 be forwarded to him, it is implied that they are to be sent 
 by the conveyance or carrier known to be so employed, 
 
 (z) lEsp. Dig. N. P. 18. 
 (a) Cowp. 294.
 
 CHAP. II.] for Goods sold and delivered. 67 
 
 and the proof of the delivery of the.goods to him is suffi- 
 cient to charge the Buyer, (b] 
 
 This being a general head it may be proper to advert 
 to- 
 
 The Evidence for the Defendant under the Action for 
 goods sold. 
 
 The Defendant may, in answer to the Plaintiff's Action, 
 show that the Goods were sold on credit, and that the Ac- 
 tion was brought before the credit expired. To prove 
 the commencement of the Action where he relies on this 
 defence, he should have an examined copy of. the writ, or 
 the copy served on himself, or the writ itself ; but if the 
 suit was commenced by Bill, if the credit expired before 
 Defendant filed it, it will be sufficient to entitle the Plain- 
 tiff to recover. 
 
 So the Defendant may give in Evidence, that the goods 
 were not such as he had ordered, and that he offered to 
 return them ; that they were of inferior value to what they 
 are charged ; that they were damaged or worth nothing. 
 This is matter of fact to be proved by witnesses. 
 
 5. Of the Evidence on the Count for Work and Labour. 
 
 In this case it has been laid down, that what is done by 
 anyone, in the course of his profession, trade, or business, 
 is presumed to be done with a view to payment, and that 
 the person doing it may recover an adequate compensation 
 or reward : in such case it will be sufficient to show that 
 
 (A) 3 Bos. & Pul. 582. 2 Camp. 36, 639.
 
 68 Of the Evidence in Assumpsit [CHAP. II. 
 
 he was so employed,, without proving any express pro- 
 mise to pay him ; but where what is done has no connec- 
 tion with the Party's business ; an express employment 
 must be proved on the terms of being paid, the law being 
 clear, that no man can make another his debtor without 
 his consent, and that no man shall seek for payment for 
 what he at first gratuitously undertook without the view 
 of being paid for. 
 
 In settling the Evidence therefore on this Count where 
 the work or labour done is connected with the Plaintiff's 
 trade, profession, or business, he must prove of what trade ? 
 profession, or business he is, and the Defendant retained 
 or employed him in it, and then prove the work and labour 
 done, and that it was in a fit and proper manner, and then 
 give Evidence of the amount of what he charges. 
 
 If it is not so connected with the Plaintiff's trade, pro- 
 fession, or business, he must prove that the Plaintiff retain- 
 ed, hired, or employed him, to do it, and that he did it in 
 consequence under a contract or agreement to pay him, 
 which may be proved by a witness, or by a writing in De- 
 fendant's hand. 
 
 And the Plaintiff must, lastly, prove what he deserves 
 to have for his trouble. All these facts are provable by 
 witnesses. 
 
 Of the Evidence on the part o f the Defendant in this 
 
 Count. 
 
 The Evidence which the Defendant may adduce to resist 
 the claim arising from this Count (c) is, that what was done 
 
 (c) 1 Esp. Dig. N. P. 108. 2 Stra. 728.
 
 CHAP. II.] for Work and Labour. 69 
 
 was done gratuitously, out of kindness, or with a view to 
 a legacy or future service which Defendant might render 
 to the Plaintiff; this Evidence is an answer to it. So the 
 Defendant may reduce the demand by counter- Evidence 
 of overcharge by Plaintiff, by showing what Plaintiff was 
 fairly entitled to. These facts may be proved by wit- 
 nesses, letters, or the Defendant's admission, 
 
 6. Of settling the Evidence on the Count upon an Account 
 
 stated. 
 
 This does not suppose a regular statement of demands 
 between the Plaintiff and the Defendant, and a balance 
 struck in the Plaintiff's favour : any Evidence of an ad- 
 mitted balance, where there have been mutual demands, 
 either by parol or by writing, is quite sufficient to enable 
 the Plaintiff to recover, though different from the sum sta- 
 ted in the Declaration. 
 
 This is, however, to be taken to be the case where the 
 Plaintiff's case is on the common Count in the general 
 form, viz. " that the Plaintiff and Defendant accounted to- 
 gether, and the Defendant was then found in arrear, and 
 indebted to the Plaintiff in a large sum of money, to wit, 
 the sum of /. ," where the sum is laid under a videli- 
 cet ; but if the Count was on an account stated between 
 the Parties, wherein the Defendant was found in arrear, 
 and indebted to the Plaintiff in the sum of 20/. e. g. (d) 
 and then state, a promise to pay in consideration of for- 
 bearance, the exact sum must be proved, or the Plaintiff 
 
 (d) 3 Maw. & Selw. 173.
 
 70 Of the Evidence in Assumpsit [CHAP. II. 
 
 will be non- suited. In settling the Evidence^ therefore, 
 this distinction is necessary to be attended to. 
 
 3. I shall now proceed to the third head of this Chap- 
 ter, and consider the Evidence in cases of Assumpsit, con- 
 nected with the Person as standing in some degree of 
 relation to others, or in a representative character, and 
 how the Evidence in those cases is to be settled. 
 
 1. Of settling the Evidence in the case of Sureties, or Co- 
 Bail. 
 
 If a Surety, or Co-Bail, is compelled to pay the whole 
 Debt for which he became bound with another, he may 
 call on the Principal to repay him the whole or for contri- 
 bution from his Co- Surety or Co- Bail ; that is, if two only 
 were joined in that security, for a moiety of the sum paid ; 
 if three, for a third each ; and so in proportion where there 
 are more joined, (e) 
 
 In such Action, the form of which is Assumpsit for mo- 
 ney paid to the Defendant's use, the Plaintiff must give in 
 Evidence the original security by which he became bound 
 with the Defendant ; if by Bond, it must be produced and 
 proved to have been executed, by the Defendant and him- 
 self, by the subscribing witness ; and if by Recognizance, 
 it must be produced and proved. When the Bond or 
 other Security is so .proved, and it is read in Court, the 
 sum in which the Parties were bound appears : the Plaintiff 
 must then prove that he was called upon by the obligee 
 of the Bond, or the Plaintiff or Sheriff, in the case of a Bail- 
 
 (e) 1 Esp. Dig. N. P. 5. Per Buller J. 2 Terra Rep. 105.
 
 CHAP. II.]- inj Sureties or .Landlord a. 71 
 
 Bond or Recognizance, and compelled to pay the whole 
 Debt. For this purpose, he must show, that payment 
 was either demanded of him, or enforced ; which may be 
 done by giving either parol or written Evidence of the 
 demand made on him in consequence of which he paid ; 
 for he cannot voluntarily and uncalled on pay the Debt for 
 which he had bound himself ; where he has been called 
 upon, it is always advisable to give notice to the Principal, 
 or his Co- Surety, or his Co-Bail in the first instance, ei- 
 ther to pay or resist the demand, and he should be prepared 
 with Evidence of his having done so : but though advisa- 
 ble, it is not necessarily required to give him a title to 
 recover. In this case, the obligee of the Bond, or Plaintiff 
 in the Action on the Bail Bond, are good witnessses to 
 prove his payment of the whole sum in which he was 
 bound with Defendant. 
 
 2. Of -settling the Evidence in cases of Landlord and Te- 
 nant. 
 
 The principal cases in Assumpsit, in addition to that 
 for Use and Occupation, already treated of, are, 1. Such 
 as arise on the Covenants of an expired Lease, or, 2. For 
 not using the land in a Husbandlike or Tenantlike man- 
 ner. 
 
 1. Where there has been a Lease containing Covenants 
 of any description, which has expired, and the Tenant con- 
 tinues to hold as before, he holds subject to all the Cove- 
 nants contained in the Lease ; and the observance of them 
 is enforced by special Action of Assumpsit, stating the
 
 72 Of the Evidence in Actions [CHAP. II. 
 
 breaches in the words of the Covenants in the original 
 Lease. (/) 
 
 In such case, the Plaintiff must produce and prove the 
 execution by the Defendant of the original Lease, by call- 
 ing the subscribing witness ; the term being mentioned in 
 it, it will appear by the date, that it is expired, and the 
 Covenants on which breaches are assigned should be 
 read from it : the Defendant must be proved to have 
 held and enjoyed the Premises under the original Lease, 
 and to have continued in possession after it was expired. 
 The Plaintiff must then call witnesses to prove the breaches 
 assigned, and the extent of the injury as damages ; as, for 
 example, if it was for not repairing, by a witness who 
 proves the state of the Premises, and what sum it would 
 take to put them into repair. 
 
 If the Action is against the Tenant for not using the 
 Land in a Husbandlike way, that is matter of Evidence 
 governed by the custom of the country where the Land 
 lies, and what is deemed good Husbandry : (g) for this 
 purpose, the Plaintiff must prove, that the Defendant was 
 his Tenant, and call witnesses to prove in what manner 
 he has treated the Land while he occupied it. He must 
 then call persons of skill and experience who are to speak 
 to what is good Husbandry, and whether what the Defend- 
 ant has done, is contrary to it ; and, lastly, prove the ex- 
 tent of the damage. 
 
 (/) Esp. Dig. N. P. 
 
 () Esp. Dig. N. P. 303. 5 Term Rep. 173. 4 East. 154.
 
 CHAP. II.] against Vicars or Rectors. 73 
 
 3. Of settling Evidence for the Plaintiff' in the cases of 
 Persons connected with the Church, or Ecclesiastical de- 
 mands. Such as Parsons or Vicars, Curates, Church- 
 wardens, or other officers. 
 
 1. Of Parsons or Vicars. 
 
 These Actions are, 1. For dilapidations, which a Rec- 
 tor or Vicar, on coming to a Living, is entitled to recover 
 from the former Incumbent, if living, in whose time the 
 dilapidation took place, or from his representative, if he is 
 dead, (h) 
 
 In support of this Action, the Plaintiff must prove his 
 title to the Living, by giving in Evidence his presentation, 
 institution, and induction into it ; but to fix the Defendant 
 as late Incumbent, or his Representative as liable for the 
 dilapidations, it is only required to show his acts ; such as 
 receiving the Tithes, or Living in the Parsonage House, (z) 
 The Plaintiff must then prove the state of the Premises, 
 and that they belong to the Living or Parish, and are di- 
 lapidated and out of repair ; and, lastly, the amount of the 
 damages. 
 
 2. For subtraction of Tithes, upon which, however, it 
 should be observed, that the form of Action is not Assump- 
 sit, but Debt under Stat. 2 and 3 Ed. 6. ch. 13. () 
 
 Where the Parishioners, among whom is the Defend- 
 ant, have recognised the Plaintiff as their Parson or Vicar 
 
 (A) 3 Lev. 262. 2 Rep. 630. (i) 3 Term Rep. 634, 
 
 (*) Vid,.4 Mod. 422. 4 Term Rep. 367, 
 
 K
 
 74 Of the Evidence in Actions LHAP. II. 
 
 by paying him Tithes on any occasion, (/) if he is after- 
 wards obliged to sue them for subtraction of Tithes, Evi- 
 dence of such former payment or settlement is sufficient. 
 But it should seem, that if a new Incumbent who has ne- 
 ver received Tithes nor any dues in that character, is 
 obliged to sue for subtraction of Tithes, that he must 
 prove himself regular Incumbent of the Living, by the 
 same Evidence as is above stated. 
 
 Having established his title by such Evidence to the 
 Tithes, the Plaintiff must then prove the Defendant to be 
 in possession of the Lands, for the subtraction of the Tithes 
 of which the Action is brought : that they lie within the 
 Parish ; that there was a crop grown on them of Corn or 
 Hay, or the like, which was cut and carried by the De- 
 fendant, without the setting out or leaving of any Tithes ; 
 and he, lastly, must prove the single value of those car- 
 ded away, which being established, he will be entitled to a 
 verdict for the triple value ; all this is to be proved by the 
 viva voce Evidence of Persons acquainted with the Parish, 
 and the Land held by the Defendant. 
 
 The Evidence for the Defendant, in this case, may be 
 to shmvy that there was a modus existing in the Parish of 
 a money payment in lieu of Tithes, which warranted him 
 to remove the whole of the crop. 
 
 3. An Action of Assumpsit will lie by the Curate of a 
 Parish against the Incumbent who gave him a title to be 
 ordained, though he has been dismissed by that Incum- 
 bent from doing the duties of the Church, (m) 
 
 (0 Per Lord Kenyan, 3 Term Rep. 635. 
 (w) Martyn t>. Hynde, Dougl. 1 37.
 
 CHAP. II.] by or against Church-wardens. 75 
 
 The Evidence for the Plaintiff, in this case, is the letter 
 of recommendation in the common form addressed to the 
 Bishop by the Incumbent of the Plaintiff: this is proved 
 by the production of the letter itself by the Officer of the 
 Bishop, and proving the hand-writing of the Defendant 
 subscribed to it. It will be then necessary to prove, that 
 the Defendant is then Incumbent of the same Parish, and 
 that the Plaintiff had offered to do the duty. 
 
 The damages are the amount of the Curate^ stipend. 
 
 4. Of the Evidence in Actions by or against Churchwar- 
 dens. 
 
 As the property of personal things belonging to the 
 Church is in the Churchwardens, they may bring Actions 
 in their own names for them, or Jae sued for repairs done 
 to the Church or Churchyard. In both cases, their ap- 
 pointment should be proved : this being by order of Ves- 
 try, the Vestry book containing their appointment should 
 be produced by the Vestry Clerk, as the Person having 
 charge of it. 
 
 If, however, they have given orders for any thing to be 
 done in their character of Churchwardens, to the Church 
 or Churchyard, it will be sufficient to prove the order so 
 given ; and it seems doubtful whether the general Evidence 
 of their being Churchwardens, and acting as such, would 
 not be sufficient in all cases.
 
 76 Of the Evidence in Assump sit [CHAP. II. 
 
 5. Of the Evidence in case of Factors or Agents. 
 
 1. In the case of Factors, (ri) If a Factor buys or sells 
 goods, though they are known to be sold or bought on 
 account of others, he may maintain an Action, or be sued 
 in his own name. 
 
 The only points on which any question of Evidence can 
 arise, are, 1. Where the Factor sues for the price of goods 
 sold by him, (o) the Defendant may answer the Action 
 by showing, that the payment for them was stopped in his 
 hands, by the owner of the goods giving him a notice to 
 retain the money ; for that purpose, the Defendant must 
 call witnesses to prove, that the goods claimed were the 
 goods of such Person, and by him sent to the Plaintiff to 
 be sold : for which purpose, the Plaintiff should have no- 
 tice to produce the Invoice, or Bill of Parcels, sent by such 
 Person with them to him as a Factor. The owner cannot 
 be a witness for this purpose, as he is interested in stop- 
 ping the money in the Defendant's hand ; but it may be 
 done by his Clerk or Servant proving the sending or ship- 
 ping them, and calling the Persons from the Wagon or 
 Wharf to prove the delivery of them to the Plaintiff, or by 
 a witness who knows them, and has seen them in Defend-, 
 ant's possession. The Defendant must then prove a no- 
 tice to him from the owner, either written or verbal, not 
 to pay over the proceeds to the Plaintiff, the Factor, he 
 being the principal ; if it is in writing, his hand must be 
 proved ; if it is verbal, it is proved by a witness who heard 
 it. But this notice is only available where the owner is not 
 
 (n) I Esp. Dig. N. P. 129. 
 
 (o) 2 Stra, 1182. Bull. N. P. 130.
 
 CHAP. II.] by or against Factors. 77 
 
 indebted to the Factor. (/>) 2. To a similar Action, by 
 the owner of the goods for the price, after such notice 
 against the buyer from the Factor ; the Defendant may set 
 up as a defence, that the Factor was indebted to him, and 
 that he sets off the price of the goods against the debt so 
 due to him. In this case, the Defendant must, 1. Prove 
 that the Factor was indebted to him. 2. That he bought 
 the goods from the Factor, not knowing them to be ano- 
 ther's, but considering them as his own. This latter piece 
 of Evidence being, however, negative, it may be disproved 
 either by production of the Bill of Parcels from the Fac- 
 tor, in which the goods are described as the Plaintiff's, or 
 by calling the Factor himself ; for, in this case, he has no 
 interest ; being either indebted to the Plaintiff, in the 
 price of the goods, or so much of his debt to the Defend- 
 ant being left undischarged, he can prove the whole trans- 
 action. 
 
 3. Every Factor is bound to sell according to the 
 usage of the trade ;(q) if for ready money, for ready 
 money ; if on credit, on the usual credit ;(r) not to sell to 
 Persons notoriously of bad character : and to sell, not to 
 pledge. If he fails in any of these respects, he is liable to 
 an Action for breach of his duty. 
 
 Such action, however, cannot occur where the Factor 
 sells under a del credere commission, because he is then 
 liable in his own person ; but if he sells, and makes returns 
 of sales, to buyers of no credit, and who, when applied to, 
 cannot pay ; if he sells at a longer credit than is warranted 
 
 (/O Ibid. Cowp. 251. 7 Term Rep. 359. 
 
 (?) I Esp. Dig. N. P. 131. (r) Gas. K. B. 514.
 
 78 Of the Evidence in Assumpsit [CHAP II. 
 
 by the usage of Trade, or if the owner applies to have 
 his goods returned, and he finds the Factor has pledged 
 them, he may maintain an Action against him : the last 
 of these cases is, however, the object of an Action of Tro- 
 ver against the Person who has got them. 
 
 The evidence, however, in these Actions is necessarily 
 different, and must be attended to. 
 
 The Defendant's (the Factor's) own return of sales is 
 the groundwork of all these Actions ; and the Plaintiff 
 must prove that he received it from the Defendant by proof 
 of his hand-writing, or otherwise. 
 
 If the Action is for selling them to an improper Person, 
 it will not be sufficient for the Plaintiff to show that the 
 buyer was insolvent when the money was to be paid, if he 
 was in good credit when the goods were sold ; he must 
 therefore apply his Evidence to that period. He should 
 show that he was at that time in bad credit, as that he had 
 been a Bankrupt ; or compounded with his creditors a short 
 time before ; or that no one would deal with him : these 
 are matters of fact not requiring the strict proof of Bank- 
 ruptcy or the like, but are matters of reputation to which 
 witnesses may give Evidence from their knowledge of the 
 particular fact, as, e. g. by a witness who proved a debt 
 under his Commission. The Plaintiff must then prove a 
 demand of payment for the goods from the Person men- 
 tioned as the buyer, at the regular time of payment expired, 
 and that he was not paid : that is sufficient for the Plain- 
 tiff's case. 
 
 If the Owner's complaint is for selling at too long a
 
 CHAP. II.J by or against Factors. 79 
 
 credit : he may maintain an Action against the Factor, 
 after the time of the usual credit is expired. (s) What is 
 the time of usual credit, is matter of Evidence which the 
 Plaintiff must prove, by calling Persons in the trade, and 
 acquainted with the usual and regular credit, and then 
 showing by production of the Defendant's return of the 
 Sales, proved as before-mentioned, that the goods in ques- 
 tion were sold at a longer credit, and he will be then 
 entitled to recover. 
 
 If the Owner's Action is for pledging his goods, that 
 fact may be proved by calling the Person to whom he has 
 pledged them, or by other proof. 
 
 2. In the case of Agents.(t] Agents as such may 
 maintain Actions in their own names, as in the case of 
 Auctioneers. A Factor is in fact an Agent, and the law 
 as to Agents generally, for the most part is the same. 
 The only case of most importance, under this head, is 
 where the Agent is sued and seeks to protect himself under 
 his representative capacity ; when sued therefore in his 
 own name, he may set up and prove, that he was an 
 Agent merely under the following circumstances : 
 
 If an Agent is sued for money received by him, in fact 
 not on his own account,(w) he may give in Evidence : that 
 he was known to the Plaintiff to be an Agent only for an- 
 other, and that the Plaintiff paid the money to him volun- 
 tarily for the use of his Principal, or even by mistake for 
 the same purpose,(a:) and that he has paid it over to his 
 
 () 1 Camp. 258. (f) 1 Esp. Dig. N. P. 132. 
 
 (w) 4 Burr. 1985. (or) Cowp. 565.
 
 80 Of the Evidence in Assumpsit [CHAP. II. 
 
 Principal without any notice to retain it before Action 
 brought : with this Evidence the Plaintiff cannot recover. 
 
 In that case, the payment of the money to the Defendant 
 is the Plaintiff's Evidence ; and the Defendant must then 
 show, if it does not come out from the Plaintiff's witnesses, 
 that it was not paid to him on his own account, but for 
 his Principal. He must then show an actual payment 
 over of the money to the Principal before Action brought, 
 or any notice given to retain it : for his giving his Princi- 
 pal credit in account for it, or in his books, will not dis- 
 charge him.(y) He should then either prove payment to 
 the Principal by calling the Principal himself, or a witness 
 who saw the payment, or by the Principal's receipt. 
 
 In general, where in other cases a man is known to 
 have been an Agent only, and he gives up his Principal, 
 the latter ought to be sued, unless the Agent has by some 
 Act or declaration taken a responsibility on himself.(2r) 
 
 Where the Principal is sued on some contract made by 
 his Agent,(o) the Plaintiff must establish the fact, that he 
 was Agent, clear of all doubt ; and any Letters or Decla- 
 rations of the Agent are inadmissable as Evidence. He 
 must be either called himself, or some Person who can 
 prove the employment, either by knowing the fact to be 
 so, or by the Defendant's admission of it ; and where the 
 agency is established, the Defendant may in answer 
 show, 1. That the Agent was not a general Agent, or 
 authorised in the particular transaction to act to the extent 
 
 (y) Cowp. 3 Maw. & Selw. 348. (z) 15 East. 64. 1 Campb. 85. 109 
 (a) I Esp. Dig. N. P. 132.
 
 CHAP. II.] by or against Agents. 81 
 
 he did ; for unless the Agent is a general one, or so 
 authorised, he cannot bind his Principal, (b) A special 
 Agent is bound to act within the scope of his authority ; 
 as if a Broker is authorised to buy one kind of silk, and 
 he buys another, the Principal is not bound ; (c) but if the 
 authority of the Agent is not circumscribed, the Principal 
 shall be bound. 2. The Principal may show that the 
 Plaintiff trusted the Agent ; gave him time for payment 
 without acquainting the Principal, and that shall discharge 
 him. As the authority to the Agent may be by letter or 
 by parol, the defence is proved accordingly. (d) 
 
 6. Of the Evidence in Actions by or against the Owners 
 
 of Ships. 
 
 The property in Ships being regulated by the Statute 
 of 26 Geo. III. c. 60. s. 66. and 34. Geo. III. c. 68. s. 
 11., with respect to their being duly registered ; in all Ac- 
 tions, by Ship Owners, that must be strictly attended to 
 when it is necessary to go into Evidence of strict property 
 in a Ship. 
 
 1. Actions of Assumpsit against Ship-owners are prin- 
 cipally for repairs done to the Ship, for Seamen's wages, 
 or for negligent carrying of goods ; in such Actions, 
 where there are many Defendants on the Record sued in 
 that character, their joint liability in this as in every Action, 
 founded on contract, must be made out.(>) 
 
 For this purpose, if a defendant is proved to have acted 
 
 (b) 3 Term Rep. 763. (c) 1 Esp. C. N. P. 1 1 1. 
 
 (d) 3 East. 147. (?) l Esp. Dig. N. P. 133,
 
 
 8'2" Of the Evidence in Assumpsit [CHAP. II. 
 
 as Owner, or has represented himself as such, has given 
 directions respecting the voyage to the Master, or given 
 orders for any thing to be done connected with the Ship, 
 no further Evidence is necessary to fix him as the Owner. 
 
 But if others are joined with him who have done no act, 
 or appeared as Owners, they are fixed with demands 
 connected with the Ship ; first, by producing Evidence of 
 the Ship's Register, in which their names appear. This 
 is had from the Ship's Registry Office at the Custom 
 House, from whence the original Register will be pro- 
 duced. 
 
 But this Register alone, or even though accompanied 
 with the Affidavits of other part Owners, swearing that 
 they, and the Person sought to be charged as a part 
 Owner, were the Owners of the Ship,(y) will not be suf- 
 ficient Evidence to fix such Person, without further proof 
 that he assented to the Register, or in some way recognised 
 it. This proof may be had by some Evidence of his 
 representing himself on any occasion to be so, by proving 
 his hand-writing subscribed to the Register, or by any 
 act done by him, or order given, in the character of a part 
 Owner. 
 
 This Evidence, which is composed of written and parol 
 Evidence, is indispensable in every case to establish the 
 Defendant's liability in the character of Ship-owner, who 
 is sued as such for any demand connected with the Ship ; 
 that is, therefore, the first piece of Evidence in all Actions 
 against them. 
 
 (/) U East. 226; 2 Taunt. 5. 2 Campb, 170.
 
 CHAP. II.] by or, against .Ship- Owners. 83 
 
 The rest of the Evidence depends upon the nature of 
 the Action ; if it is for repairs done to the Ship, and the 
 declaration for work and labour, the Plaintiff must prove 
 the orders given by the Defendant, or the managing Owner, 
 or by the Master, what was done, and the amount of it. 
 This is done by the testimony of witnesses. (g) 
 
 If it is an Action for Seamen* s Wages earned on board 
 the Ship, the Declaration is for work and labour generally, 
 even though the Seamen has signed Articles under Seal, 
 and bound himself, to serve for the Wages set opposite 
 to his name. And the Stat. 2 Geo. II. c. 35. enacts, that 
 all articles between the Master or Mariners for foreign 
 voyages shall be in writing ; that no obligation- shall lie on 
 the Seamen to produce them ; nor shall he fail in any 
 Action for the want of the production of them. 
 
 The course of Evidence, therefore, at Nisi Prius, in 
 these cases, is for the Plaintiff to call for the Ship's Arti- 
 cles, which the Defendant is bound to produce, though no 
 notice has been given to do so ;(h) when produced, they 
 show the rate of Wages at which the Plaintiff served, and 
 he is then called upon to prove the length of time which 
 he served on board, which must be to the end of the 
 voyage : this is usually done by some of the Crew who 
 served with him. % 
 
 This Statute, however, applies to British not to foreign 
 vessels, and the Statute mentions foreign voyages only.(z) 
 In the case therefore of Suits for Wages on board foreign 
 
 O) 1 Term Rep. 73. (h) 2 Campb. 315. 
 
 (z) 3 Campb. 290.
 
 
 84 Of the Evidence in Assumpsit CHAP. II. 
 
 vessels, the Plaintiff must prove the hiring, the rate of 
 Wages he engaged at, or if he has no Evidence of that, 
 the rate of Wages paid to others, serving as he did, and 
 the length of service, which will be sufficient. 
 
 It should, however, be observed, as a proper caution to 
 the Plaintiff's Attorney in practice, to take out a Sum- 
 mons, and procure a Judge's Order for the sight, perusal, 
 or a copy of the Ship's Articles, as they often will be 
 found to contain Covenants or Agreements between the 
 Master and Crew, which may defeat the Plaintiff's Action. 
 But, in every instance, the Plaintiff should be prepared to 
 prove, that he served till the conclusion of the voyage ; as 
 if Defendant proves that he left the Ship, or deserted before 
 that time, he cannot recover. So the Defendant may 
 prove that the Ship was lost, which equally deprives him 
 of any claim for Wages. 
 
 If the Action is against the Defendant, as Owner, for 
 negligence, the Plaintiff should prove the Shipping of the 
 Goods, the injury which they suffered, and show that it 
 arose from negligent stowage : such as the want of suffi- 
 cient dunnage, or the Ship not being waterproof : and the 
 amount of the damage ; and it will be always requisite 
 clearly to show the cause of injury, and connect it with 
 the Ship. 
 
 2. The principal Action, by Ship-Owners, is for 
 Freight, or charges for the Shipping of Goods, or on Poli- 
 cies of Insurance. 
 
 When the Plaintiffs sue as Ship-owners, for Freight, 
 Insurance, or such like demands, they must prove them-
 
 CHAP. II.] by Ship-Owners. 85 
 
 selves invested with the full legal Ownership required by 
 the Statutes before-mentioned. 
 
 The regular mode to do so is as before-mentioned, viz. 
 by the production of the Register and Certificate of Regis- 
 ter from the Custom House, and proof of the names of all 
 the Parties, Plaintiff appearing as such, and some Evi- 
 dence of their acting as Owners. This is decisive ; but 
 general Evidence of Ownership, unless it is contested, 
 will otherwise be sufficient at first. But it is perfectly 
 clear, that if any Persons declare as joint Owners of a 
 Ship,() and the Defendant gives the Ship's Register from 
 the Custom House in Evidence, and the name of any of 
 the Plaintiffs is wanting in it, that the Plaintiffs must be 
 nonsuited ; for unless the Owner's name appear in the 
 Ship's Register, &c. he is not a legal owner, and there- 
 fore can maintain no Action. 
 
 Having, however, first established a legal Ownership, 
 if they sue for Freight, they must prove the Charter-party 
 or Bill of Lading if any, or the hiring of the vessel for a 
 particular voyage or time ; the sum to be paid either by 
 agreement, or on a quantum meruit ; and prove that she per- 
 formed the voyage or service, and that the goods were 
 delivered to the Defendant, and the amount of the de- 
 mand. 
 
 If the Action is for Freight on a Charter-party of 
 affreightment not under Seal, between the Plaintiff and 
 Defendant, no proof of Ownership is required, the Defen- 
 dant having contracted with the Plaintiff in that character ; 
 
 (*) 5 Term Rep. 709.
 
 86 Of the Evidence in Assumpsit. [CHAP. II. 
 
 in that case, therefore, the Plaintiff must prove the 
 Defendant's signature to the Charter-party, and that the 
 voyage was performed : the rate of payment being estab- 
 lished by the Charter-party, it ascertains the amount of the 
 damages. The performance of the voyage maybe proved 
 by the Master, or any one who sailed on the voyage ; and 
 any Person who is proved to have received the goods 
 under the Charter-party, whether he is the Person named, 
 Consignee, or Indorsee of it or not, is liable to the Action 
 for Freight. The Plaintiff therefore must prove the 
 delivery of the Cargo to the Defendant pursuant to the 
 Charter-party, which is sufficient ; but he must be proved 
 to have received it under it, or on his own account.(/) 
 
 If the Action is for a loss on a Policy of Insurance, 
 the Evidence to be produced is as before stated, page 35. 
 
 7. Of the Evidence in Actions by or against Partners. 
 
 1. In Actions brought by Partners, to recover a Part- 
 nership demand or claim, (m) it is indispensable that all 
 should join and appear as Plaintiffs on the Record ; for if 
 it comes out on the Trial, that any one is omitted, it is a 
 decisive ground of Nonsuit, though the Plea is the 
 General Issue. 
 
 The Plaintiffs, therefore, must always be prepared with 
 Evidence of their Partnership, (n) and, that all those whose 
 names are on the Record, are Partners in the demand, or 
 
 (0 13 East. 399. and 1 Mau. 8c Selw. 157. 2 Mau. & Selw. 303. 
 (m) 5 Term Rep. 709. 
 (n) 3 Campb. 329.
 
 CHAP. II.] by or against Partners. 87 
 
 concern, for which the Action is brought : this is done by 
 many ways ; as, by producing the Partnership Deed, and 
 proving the execution of it, by all the Plaintiffs ; by the 
 Evidence of the Solicitor employed for the Firm, and who 
 knows who compose it ; by the Evidence of a Clerk em- 
 ployed by them, or by any Person who has dealt with all 
 in that capacity. 
 
 An exception is, however, to be observed to this rule, 
 requiring such Evidence of the Partnership ; that is the 
 case, where the Defendant pays money into Court, for he 
 by that admits a contract made, with those whose names 
 appear as Partners, and he cannot controvert it by Evi- 
 dence. 
 
 2. If the Defendants are sued as Partners (o) the Plain- 
 tiffs must prove, that all the Persons whom he has made 
 Defendants on the Record, were jointly concerned in the 
 demand, or concern, in which the Action is founded. If 
 they appear as Partners to the world, and carry on trade, 
 or any concern, under a joint Firm, on giving Evidence, 
 that they do so, they constitute that Firm ; it will be suffi- 
 cient for the Plaintiff to show that fact, and then the act of 
 one of the Firm will bind them all, if the demand is 
 connected with that business which they so carry on to- 
 gether. If, however, there is a dormant Partner, whose 
 name may be covered under the word Co., or who shares 
 in the profits of the Trade, or concern, though the word 
 Co. be not used, and his name does not, in any way, ap- 
 pear, or any Person who may have joined in that which is 
 the ground of Action : if he is made a Defendant, the 
 
 (o) Boll. N. P. 179,
 
 88 Of the Evidence in Assumpsit [CHAP. II. 
 
 Plaintiff must give distinct Evidence as to him, and show, 
 that he had such an interest as constituted him a Partner, 
 or that he is jointly interested in the particular matter 
 which is the subject of the Action. This is to be done 
 by vivd voce Evidence of Persons acquainted with the 
 Defendants, and their course of dealing, or with the par- 
 ticular transaction in question. Under this head, of set- 
 tling Evidence, it must not be forgot, that if the. Action is 
 joint against many Defendants, the PlaintiiF must prove, 
 by distinct Evidence, that every Defendant on the Record 
 was concerned in that which is the subject of the Action ; 
 and if he fails to fix any one of them by Evidence, he must 
 be nonsuited, for then the contract proved, will be differ- 
 ent from that declared on. 
 
 But, though there may be many more Partners or Per- 
 sons concerned in the transaction on which the Action is 
 founded, than those who are sued, and appear as Defend- 
 ants on the Record, and that should appear in Evidence 
 on the Trial, the Plaintiff will, nevertheless, be entitled to 
 a Verdict, provided he fixes those by Evidence whom he 
 has made the Defendants ; (/>) for, if they meant that the 
 others should have been joined, they could only avail 
 themselves of that circumstance by a Plea in Abate- 
 ment. 
 
 If there is a Plea in Abatement, " that others ought to 
 be joined," the Plaintiff may reply, that the Defendant un- 
 dertook solely, and not with others ; or he may deny the 
 Defendant's Partnership with the others, whom it is plead- 
 ed ought to be joined. In. this latter case, the Issue lies 
 
 (/z) Rice -u Shute, 5 Burr. 2611.
 
 CHAP. II.] by or against Partners. 89 
 
 on the Defendant, and he must prove a Partnership^ before 
 observed, in the case of Plaintiff's Partners. If the Plain- 
 tiff relies on the cause of Action being the Defendant's 
 only, the Issue lies upon him, and he must prove it, by 
 showing, that the Defendant alone contracted with him. 
 
 If the Defendant plead Partnership, and he has, in fact, 
 no ostensible Partner ; so that, if the Plaintiff were to sub- 
 mit to the Plea, and enter a cassetur billa, he would, in 
 another Action, be under difficulties to fix such Partner, 
 It is, therefore, better to reply the sole undertaking and 
 liability of the Defendant on the Record ; in that case, it 
 will be good Evidence, if the Action be for goods sold, to 
 show by witnesses, that the Defendant ordered the goods, 
 that no other Person was ever seen, or known, to act as a 
 Partner. 
 
 There is no mistake into which I have found those in 
 Practice so often fall, as the not distinguishing the cases, 
 where the Evidence at Nisi Prius implicates more Parties 
 than appear on the Record. The Rule is this : if it ap- 
 pear, by the Plaintiff's own showing, or by Evidence ad- 
 duced by the Defendant, that the Plaintiff has a Partner, 
 or Partners, or that there was any other Person jointly in- 
 terested with the Plaintiff, and his or their names do not 
 appear on the Record, the Plaintiff must be nonsuited; 
 for he ought to state truly with whom the Defendant's 
 contract was made, by stating the names of all concerned, 
 and their joining in the Action ; otherwise, the contract 
 proved by Evidence is not that declared on. 
 
 But, if it appear at the Trial, that the contract stated, 
 was with the Defendant, and others who are not made
 
 90 Of the Evidence in Assumpsit [CHAP. IL 
 
 Defendants, this shall not affect the Plaintiff's right to re- 
 cover, if there was no Plea in Abatement, but he may re- 
 cover against those who appear as Defendants on the 
 Record. 
 
 Of the Evidence for the Defendant. 
 
 If there are any number of Partners in Trade who are 
 sued jointly, for Goods which appear to have been order- 
 ed in the way of the Partnership Trade, or Bills accepted 
 apparently connected with it ; the Defendant has no way 
 of defending himself, but by showing, that the transaction 
 was not a Partnership one, but for the benefit of one or 
 more of the other Partners, and that fact known to the 
 Plaintiff. 
 
 As, e. g. if an Action was brought on a Bill of Ex- 
 change, bearing the acceptance of the Firm, which, by law, 
 any of the Partners may do on the Partnership's account j 
 anyone of the Firm may plead Non-Assumpsit, and show by 
 Evidence, that the Bill was not for the Partnership's use, 
 but for the sole account of another Partner, or Partners, 
 and that the Plaintiff, when he took the Bill, knew the 
 fact to be so ; proof of these facts is indispensable, on ac- 
 count of the legal right which any Partner has to bind the 
 Firm, and the Bill on the face of it would purport to be 
 for the Partnership's use. This is matter of viva voce 
 Evidence ; but as most of these cases are matters of collu- 
 sion between the Plaintiff and some of the Partners, in al- 
 most every case it is necessary to have recourse to a. Bill 
 of Discovery as the only mode to get at the truth.
 
 
 CHAP. II.] in Cases of Bankruptcy. 91 
 
 8. Of the Evidence in Actions by^ or against; Assignees of a 
 
 Bankrupt. 
 
 This head of Evidence underwent a considerable change 
 -since the passing the Act, 49 Geo. III. c. 121. S. 10., 
 by which, whether the Assignees are Plaintiffs or Defend- 
 ants, the production of the Proceedings under the Com- 
 mission are made Evidence ; that is, the Depositions, as 
 to the Trading, Petitioning Creditor's Debt, and Act of 
 Bankruptcy, made before the Commissioners, are declar- 
 ed to be sufficient Evidence of those matters, unless the 
 Party is called upon by the other side to prove them at the 
 Trial. 
 
 1, This is done by a notice served on the opposite At- 
 torney, requiring him to prove all these matters, or any of 
 them. If the Defendant calls upon the Plaintiff to do so, 
 he .must give that notice before he pleads ; if the Plaintiff 
 calls upon the Defendant to do so, it must be before Issue 
 joined. 
 
 When, therefore, the Assignees are required to prove 
 every step of the Bankruptcy, and, which is necessary to 
 invest them with the character of Assignees : They must 
 prove that the Bankrupt was a Trader ; this is done by a 
 witness acquainted with the business which the Bankrupt 
 followed before he was declared Bankrupt. The next 
 step is, the petitioning Creditor's debt. That may be 
 done either by written Evidence ; such as by a Bill of 
 Exchange, or Promissory Note, on which the Bankrupt's 
 name appears, and proving his hand-writing, as before 
 directed, in Actions on Bills of Exchange : by his Bond, 
 or Warrant of Attorney to confess a Judgment, the exe-
 
 92 Of the Evidence in Assumpsit [CHAP. IT> 
 
 cution of which, must be proved by the subscribing wit- 
 ness, if there is one to it ; so it may be proved to be for 
 goods sold and delivered to him, while in Trade, by the 
 Evidence before- mentioned, (page 66.) on the count for 
 goods sold ; so for money lent ; and it may, lastly, be 
 proved, by giving Evidence of an acknowledgment by the 
 Bankrupt, that he was indebted to the Petitioner, in a sum 
 of 100/. or upwards ; but this must appear to have been 
 made before the Act of Bankruptcy, (q) 
 
 The next step is, an Act of Bankruptcy : as these are 
 many; it is proved by the viva voce testimony of a witness 
 swearing to the fact, necessary to constitute an Act of 
 Bankruptcy; such as, of the Bankrupt being denied to a 
 Creditor e. g. : and, in this case, the Bankrupt's declara- 
 tion of his situation ; as, that he went out of the way to 
 avoid his Creditors, or was denied to one, because he 
 could not pay, is good Evidence. 
 
 The last proof, is the execution of the Assignment of 
 the Commissioners, by the subscribing witness. This is 
 now seldom required. 
 
 This is the strict proof, required in cases of Actions by 
 the Assignees ; and they are bound to do it, if called on, 
 with this exception, that if the Defendant has been em- 
 ployed by them, as Assignees ; (r) as, for example, to sell 
 part of the Bankrupt property, he cannot call upon the 
 Assignee, to prove the Commission, as in other cases , 
 for having dealt with them in that character, he cannot af- 
 terwards dispute it. (s) 
 
 (?) Dovvton v. Cross, 1 Esp. N. P. C. 168. 
 
 '^ 1 Barn. & Aid. 677. () 1 Esp. N. P. C. 342.
 
 CHAP. II.] m Cases of Bankruptcy. 93 
 
 But, where notice has been given, of disputing the 
 Commission, or any part of it ; the Party giving the no- 
 tice must be prepared to prove the giving of it, by the 
 witness who served it on the opposite Party. 
 
 2. If the Commission is not contested : the Depositions 
 are produced by the Solicitor tinder the Commission. The 
 opposite Party may require any Deposition to be read, and 
 is at liberty to object it, as it appears on the face of the 
 Proceedings, or to bring Evidence to disprove it, for it is 
 not to be taken to be conclusive ; (t) as, for example, if the 
 Bankrupt was found to be a Trader, and it appeared on 
 the face of the Proceedings, that he was a Farmer, and 
 bought, or sold, nothing but for the use of, or produce of, 
 his Farm, the Party may object, that this does not esta- 
 blish a Trading within the Bankrupt laws. 
 
 So, if the proceedings found him a Bankrupt by reason 
 of 100/. being a supposed debt to A. B., the Party may 
 call witnesses to prove that debt was paid before the suing 
 out of the Commission, so that there was no legal petition- 
 ing Creditor's debt, to support the Commission ; for, the 
 Proceedings, when produced, are only primd facie Evi- 
 dence of those matters declared to be so by the Statute.(w) 
 
 3. As to the vivd voce Evidence, admissible in this 
 these points are to be observed in settling the Evidence. 
 
 1. The Bankrupt, or his "ivife, are inadmissible wit- 
 
 (0 3 Campb. 424. 
 
 (a) Bull. N. P. 43. 2 H. Bl. 279. 2 Stra. 829. sEsp. N.P.C. 22. 
 Same, 187. 1 Selw. N. P. 239.
 
 94 Of the Evidence in Assumpsit [C H A p . II. 
 
 nesses to prove any fact in support of the Commission : 
 but having obtained his Certificate, and released to his 
 Assignees the allowance given by Statute, he may be ex- 
 amined, as a witness in support of any Action, brought to 
 recover any part of his property by his Assignees ; and 
 without having obtained his Certificate, he may be called 
 as a witness against his Assignees, in questions respect- 
 ing his property ; as, for example, if his Assignees sued a 
 Person on a Bond made to the Bankrupt before his Bank- 
 ruptcy, the Defendant may call him to prove it paid, though 
 he has not got his Certificate. 
 
 2. A Creditor, whether he has proved his debt under the 
 Commission or not, is an inadmissible witness, either to 
 support the Commission, or the demand, (x) 
 
 But he may be made competent by a Release of his debt, 
 or having sold his dividend. 
 
 But a petitioning Creditor may be a witness to defeat a 
 Commission, or to disprove the amount of his own debt, 
 but not to support the Commission, (y) 
 
 And note, that if it is a joint Bankruptcy, there must be 
 distinct proof of the Bankruptcy of each and these fur- 
 ther matters of Evidence on the part of the Plaintiff are to 
 be attended to. 
 
 4. As the Bankrupt, when Defendant, by the bare pro- 
 duction of his Certificate, establishes his defence by its be- 
 
 (or) 2 Camp. 301. 2 Ves. Sc B. 177. 1 Rose, 392. in Not. 2 Black. 
 1273. 
 (y) 2 Camp. 412. 1 Stark. 40.
 
 CHAP. II.] in Cases of Bankruptcy. 95 
 
 ing bprima facie answer to the Plaintiff's case, the Plaintiff 
 can only succeed, by going into Evidence, to establish 
 some one of the following points, by which the operation 
 of the Certificate is defeated ; (z) 
 
 1. He may show the Certificate to be void, by reason 
 of the Bankrupt having given, on the marriage of a child 
 100/. unless he had then sufficient to pay his debts. 2. 
 That he has lost, in one day 51. or 100/. in twelve months 
 before his Bankruptcy, by gambling, or playing at the 
 games mentioned in Stat. 5 Geo. II. c. 30. or by stock- 
 jobbing ; that he has done so is matter of viva voce Evi- 
 dence, by calling, as witnesses, the Persons who have 
 played with him, or seen him lose the money, or pay it on 
 any of these accounts. This was done with effect in the 
 case of Bateson v. Hartsink, 4 Esp. N. P. C. 43. Or that 
 it is void under the Stat. 24 Geo. II. c. 57. s. 9. by the 
 Bankrupt's fraudulently permitting proof of debts, under 
 his Commission, by Persons to whom he was not indebt- 
 ed in the sums so proved, and that they have signed his 
 Certificate : to do this, the Persons themselves may be call- 
 ed, or it may be proved, by collateral Evidence, that they 
 were not Creditors. This was done, and the Certificate 
 avoided in a case of Edmonstone v. Webb, 3 Esp. N. P. C. 
 264. 3. The Plaintiff may show, that the Bankrupt had 
 been so before, or compounded with his Creditors, and 
 that the Certificate produced, being under the second 
 Commission, that he had not paid 15s. in the pound, (a) 
 To establish this, the Plaintiff should produce the Com- 
 mission, or Proceedings under it. (b) If that Evidence 
 
 
 (z) 1 Esp. Dig. N. P. 192. (a) 5 Terra Rep. 28~. 
 
 (A) 3 Esp. N. P. C, 195.
 
 I 
 
 96 Of the Evidence in Assumpsit [CHAP. II; 
 
 cannot be had, there should be a subpoena duces tecum 
 to the Secretary of Bankrupts, or the proper Officer, to 
 produce the Document, or Entry, from the Bankrupt Of- 
 fice, of the issuing of the first Commission : if he com- 
 pounded with his Creditors, or Creditor ; any other wit- 
 ness may prove the fact, (c) So, if it was by Deed, the 
 Deed should be produced, and proved, by the subscri- 
 bing witness. But the Composition with Creditors, which 
 is required, must be a general Composition with all the 
 party's Creditors, and for his own separate Debts, not for 
 those of a Partnership, (d) The Bankrupt, by the pro- 
 duction of the Certificate, admits the issuing of the second 
 Commission, and it lies upon him to prove that he paid 
 15s. in the pound. 4. The Plaintiff may, lastly, show, 
 that the Bankrupt gave money to some of his Creditors to 
 induce them to sign his Certificate, for this renders it 
 void. (<?) This may be proved by the Person who had the 
 money, or by any witness who knows of it. 
 
 2. If the Certificate has been regular, the Plaintiff may, 
 notwithstanding the Debt was prior to his Bankruptcy, 
 give in Evidence a promise made by the Bankrupt to pay 
 it since he became Bankrupt, for that will bind him.(/*) 
 
 This promise may be proved either by letter, or by a 
 witness who heard fie Bankrupt make it ; the witness 
 must be accurate as io T he time when it was madt, so that 
 it should appear to have been made after the Bankruptcy. 
 The same accuracy of proof must be attended to, if it has 
 
 (c) 1 Bos. & Pull. 467. 16 East. 225. 3 Bos. & Pull. 185, 
 
 (rf) 15 East. 619. 
 
 (<;) 15 East. 248. 
 
 (/) 1 Esp. Dig. N. P. 193. Cowp. 544.
 
 CHAP. II.] in Cases of Bankruptcy. 97 
 
 been made by letter ; and the Bankrupt's hand-writing 
 must be proved. 
 
 In addition to which, it must be observed, in settling 
 the Evidence, that the proof must be of an absolute pro- 
 mise to pay, not of a conditional or qualified one.(g-) 
 
 3. The Plaintiff may show, from the nature of his 
 demand, that it was not proveable under the Commission, 
 for to such only the Certificate is a bar ; such as that it did 
 not arise, ex. gr. until after the Bankruptcy. That is a 
 matter of fact to be proved by Evidence and dates. 
 
 9. Of the Evidence in dictions of Assumpsit by, or against, 
 Executors or Administrators. 
 
 In this, as in every case, in which a Plaintiff sues in a 
 representative capacity, he must show himself to be com- 
 pletely invested with that character. The power of the 
 Executor is derived from the Probate of the Will, and of 
 the Administrator, from the letters of Administration ; of 
 these, Profert is made in the Declaration, but the Plain- 
 tiff is not called upon to produce them at the Trial at 
 Nisi Prius, unless the Defendant had pleaded " .V<? 
 unques Executor or Administrator, in which case the pro- 
 duction of the Probate, or Letters of Administration under 
 the Seal of the Ordinary, is primd facie sufficient for the 
 Plaintiff, to establish the death of the Testator, and 
 Plaintiff's right to sue. (/z) 
 
 (5-) 2 H. Black. 116. 
 
 (A) 2 Esp. N. P. C. 564. 1 Sid. 859. Bull. N. P. 247. 1 Esp. 
 Dig. N. P. 232. plen.
 
 Of the Evidence in Assumpsit [CHAP. II. 
 
 But that is not conclusive on the Defendant : he may 
 show, that the deceased had bona notabilia in different 
 Diocesses, and that the Probate produced was not a 
 Prerogative one ; that is matter of viva voce Evidence, 
 showing the different property of the Testator, and where 
 it lay. So he may show, that the Probate is not of suffi- 
 cient extent ; as if, for example, the Suit was for a Bond 
 due to Testator for 1000., and the sum sworn to in the 
 Probate was under 100/., that will appear on the face of 
 the proceedings, and the Plaintiff cannot recover. 
 
 So in the case of an Administrator, the Defendant may 
 prove that the Letters of Administration were recalled ; 
 that is done by the Evidence from the books of the 
 Spiritual Court where Administration is granted. 
 
 The Evidence, in Actions against Executors and 
 Administrators, will be more fully treated of in the next 
 Chapter. It may be sufficient here to observe, that in 
 Actions against them, though they do not plead non- 
 assumpsit, but plene administravit only ; yet the Plaintiff 
 is bound to prove the extent of his demand, or he will be 
 entitled to a verdict for 1*. only.(i) 
 
 10. Of the Evidence in Actions by and against Husband 
 and Wife against the Husband alone, and against the 
 Wife alone. 
 
 1. In the case of Actions by Husband and Wife it 
 should be observed, that the Wife is joined with her 
 Husband as a party on the Record, in those cases only, 
 
 (i) Salk. 296.
 
 CHAP. II.] against Husband and Wife. 99 
 
 where the right of Action would survive to her, or where 
 she is the meritorious cause of Action ; that is, where the 
 cause of Action accrues in her right, as on a Bond e. g. or 
 for any simple contract debt due to her before Marriage. (&) 
 
 In all cases, therefore, in which the Plaintiffs are Hus- 
 band and Wife, their Marriage should be proved. This 
 is done by a copy of the Register and proof of cohabitation, 
 or the testimony of a witness who was present at the 
 ceremony : mere reputation will not be sufficient. 
 
 The Plaintiffs should then prove the demand, and that 
 it was due to the Wife in her own right, and before 
 Marriage ; as e. g. if she followed any business before 
 Marriage, or a Note or Bill of Exchange was given to her 
 in her maiden name. In the former case the business 
 must be proved, and that the debt arose out of it ; in the 
 latter, the writing speaks for itself. 
 
 2. If the Wife is indebted before Marriage, the Action 
 must be against both Husband and Wife, and cannot be 
 supported against the Husband alone. (/) If he, therefore, 
 is sued alone : by proving that the debt for which the 
 Action is brought was contracted before Marriage, the 
 Plaintiff will be non-suited ; that fact will appear either 
 from the Plaintiff' 's witnesses, or by direct proof. 
 
 But though in Actions by Husband and Wife, the 
 Plaintiff must prove an actual Marriage : in Actions 
 against them as Husband and Wife, or against him for. a, 
 
 (*) 1 Esp. Dig. N. P. 153 to 158. and Cas. ibid, 
 (/) 7 Term Rep. 348.
 
 100 Of the Evidence in Assumpsit [CHAP. II. 
 
 demand on her account ; the Plaintiff is called upon for no 
 such proof,(?w) it is sufficient for him to prove, that they 
 passed for Man and Wife with his consent, as by suffering 
 her to use his name ; in which case, it is only necessary 
 for the Plaintiff to call witnesses to establish that fact, and 
 then to prove his cause of Action as connected with it, as^ 
 ex. gr. goods sold to her for wearing apparel. 
 
 Of the Evidence for the Defendant in Actions against the 
 Husband and Wife, or against him only, for debts of her 
 contracting. 
 
 For debts contracted by the Wife after Marriage, the 
 Husband must be sued alone ; and it will be necessary to 
 show, what Evidence in such cases he may give to meet 
 such demands. 
 
 1. The Defendant to an Action for goods furnished to 
 his Wife may show, that they were not Necessaries, or 
 
 silited to his rank in life.(w) 
 
 
 
 The description of the Articles which the Plaintiff goes 
 for, will show whether they are necessaries or not,(o) and 
 that may depend on their quantity, or the charges for 
 them ; as if a Mercer sues a Defendant for silk furnished 
 to his Wife ; the Husband may be liable to a certain 
 extent ; but if they are extravagantly expensive, and fur- 
 nished to the Wife of a man in moderate circumstances ; 
 it will be incumbent on the Defendant to give in Evidence, 
 what his circumstances are, and show, that with relation 
 to them, the demand is excessive ; this is matter of viva 
 
 (m) Bull. N. P. 136. () 1 Esp. Dig. N. P. 153. 
 
 (o) 1 Lev. 4.
 
 CHAP. II.] against Husband and Wife. 101 
 
 voce Evidence, but such Evidence must be given. Thus, 
 e. g. if the Wife of a Clergyman runs him in debt, and he 
 is sued, he may show the amount of his Preferment, and 
 that it is inadequate to such a demand. 
 
 2. He may show that the Tradesman, by collusion 
 with the Wife, ran him in debt ; that he furnished her 
 with articles concealed from her Husband ; that he made 
 her debtor in his books, and not the Husband, (p) 
 
 These circumstances are matters to be proved by wit- 
 nesses ; and the Plaintiff should have notice to produce 
 his books. 
 
 3. The Defendant may prove notice given to the 
 Plaintiff, not to trust his Wife, previous to the furnishing 
 of the Goods for which the Action is brought, (q) 
 
 It is not uncommon for a Person to give a general 
 notice in the Newspaper to Persons not to trust his Wife ; 
 that general notice is insufficient, unless it is brought home 
 to the Plaintiff. The Defendant should prove, by a 
 witness, the giving such notice verbally to the Plaintiff, or 
 by letter ; in the latter case, the Plaintiff should have no- 
 tice to produce the letter, and if not, a copy be proved ; 
 if it could be proved, that the Plaintiff had read the para, 
 graph in the Newspaper, that might be sufficient, but not 
 otherwise. 
 
 4. The Husband may give in Evidence, that the Wife 
 
 (A) 5 Taunt. 356. 
 
 (y) 1 Esp. Dig. 154. 1 Salk. 1 18.
 
 102 Of the Evidence in Assumpsit [C HAP. II. 
 
 had eloped from him, and was living away from him when 
 the debt was contracted, (r) 
 
 This fact must be clearly proved by witnesses. Such 
 as the leaving of her Husband's house, the place of her 
 residence when she had the goods, and her never being at 
 her Husband's house during the time ; as this elopement 
 is often adulterous, if it can be proved, that when so living 
 apart from her Husband, she was cohabiting with another 
 man, that is decisive Evidence for the Defendant. 
 
 But in such case, the Defendant should be provided 
 with proof to show, that the elopement was not caused by 
 his ill-treatment of his Wife : as in case it proceeded from 
 that cause, he will be liable for necessaries, (s) 
 
 5. The Defendant may show, that his Wife lived 
 apart from him, but that she had a separate allowance for 
 her support. This is a fact to be proved either by a 
 Deed of Separation, or the testimony of witnesses who 
 were acquainted with the Parties ; but the Husband must 
 go further, and give in Evidence at the Trial, that the 
 allowance he gave his Wife was proportioned to his cir- 
 cumstances, and was regularly paid.() 
 
 If the Action is against the Wife alone, she may plead 
 that she is a married woman, and prove her marriage as 
 before described : but the Plaintiff may make her person - 
 
 (r) 1 Esp.Dig. 154. Salk. 119. 1 Stra. 647. 1 Stra. 706. 2 Stra, 
 875. 
 
 00 2 Stra. 1214. 3 Taunt. 421. 
 (r) 4 Campb. 70.
 
 CHAP. II.] against Parents and Masters. 103 
 
 ally liable in the Action by proving. 1. That the 
 Husband is an alien enemy, and abjured the realm. 2. 
 That he has been transported for felony, or that he is a 
 foreigner, and not amenable to the laws of this country. 
 These are all capable of viva voce proof : but, in the case 
 of Transportation, the Plaintiff ought to have a copy of the 
 Husband's conviction, and proof that he was the Person 
 convicted and transported. 
 
 1-1. Of the Evidence, in Actions, against Persons standing 
 in the relation of a Parent. 
 
 A Father is bound to provide necessaries for his 
 Children under age, while they remain part of his family, 
 or where he gives them credit. To support this Action, 
 it is necessary to show, that what was furnished was 
 suitable to the Father's circumstances in life ; that the 
 child was at that time part of his family ; and that what 
 was furnished was reasonable, and not extravagant. 
 
 3. Of the Evidence in Actions against a Person standing 
 in the relation of Master. 
 
 A Master is bound by a contract made by his Servant, 
 as far as he has given him authority, and he acts within 
 k ;() and where the Master has adopted the act of the 
 Servant, he is bound by similar acts of the Servant after- 
 wards.^) As if he authorised his Servant to order goods 
 on credit, and he afterwards paid for them ; if the Servant 
 afterwards orders others, of which he defrauds his Master, 
 the Master is liable ; but if the Master had no dealing 
 
 (u} 1 Esp. Dig. N. P. 140. Salk. 442. (.r) 1 Stra. 506.
 
 104 Of the Evidence in Assumpsit [CHAP. II. 
 
 with a Tradesman directly, but gave money to his Ser- 
 vant to pay for what was furnished, and the Servant 
 embezzles the money, the Master is not liable. Where 
 an Action is so brought, and defended on these grounds, 
 the Plaintiff must prove the delivery of the goods to the 
 Defendant, that the Master had the use of them, and then 
 the Master is called upon to prove that he regularly gave 
 the money to the servant who ordered the goods, to pay 
 for them : and unless the Plaintiff can prove that the 
 Master had paid debts of his antecedent contracting, or a 
 direct order to him by the Master, the Plaintiff will be non- 
 suited. 
 
 Such is the Evidence required where the Parties sue, 
 or are sued in a representative and relative character ; in 
 addition to which the Plaintiff must prove the Counts in 
 his Declaration on which his right of Action is produced ; 
 as, ex. gr. If the Action is Assumpsit, by the Assignee 
 of a Bankrupt, for goods sold and delivered by the Bank- 
 rupt, in addition to the proof of the regularity of the 
 Commission, by the several necessary steps before-men- 
 tioned, the Plaintiff must prove the sale and delivery of the 
 goods, as laid down before in page 66. and the value of 
 them. 
 
 4. In the course of the preceding pages, I have inci- 
 dentally mentioned the Evidence which the Defendant 
 may bring forward as his defence in those particular 
 cases. I shall now proceed to consider the particular 
 Evidence of those matters of defence which most fre- 
 quently occur, and are applicable to the Pleas in ah 1 cases 
 in Assumpsit ; and show in what manner such Evidence 
 should be settled in order to furnish a complete defence.
 
 CHAP. II.] under the General Issue- 105 
 
 1. Of the Evidence under Non-Assumpsit^ 
 
 Under this Plea, every thing which directly disproves 
 the Plaintiff's right of Action, either equitably or legally, 
 may be given in Evidence j but what collaterally dis- 
 charges it must be pleaded* 
 
 As if the Plaintiff's claims arise out of, or from an 
 illegal act ; as for money charged for treating Voters at 
 an Election, for Stock-jobbing differences, or any contract 
 prohibited by law for an unconscientious demand. The 
 Defendant may give this in Evidence under the Plea o 
 Non-Assumpsit(y) 
 
 As, ex. gr. the Statutes having declared, afl securities 
 given for money won at Play, or on a usurious contract, 
 to be void ; if the Plaintiff declares on a Bill of Exchange^ 
 or Note of Hand ; the Defendant, at the Trial, may under 
 the Plea of Non-Assumpsit, give in Evidence the true 
 consideration for which the Bill or Note was given, 
 Vid. 3 Term Rep. 318. 2 Stra. 1249> 
 
 Such also is the case of demands which cannot be 
 legally enforced against the Parties, as in the cases of 
 married women or infants, where the demand is not for 
 necessaries. The one may prove her marriage, and the 
 other his nonage, under the plea of Non-Assumpsit ; for 
 they cannot be said to undertake to pay that for which by- 
 law they are not liable. 
 
 So, in the case of opprebsive, unconscientious, or unjust 
 
 L Esp,l%. N. P. 109, 

 
 106 Of the Evidence in Assumpsit [CHAP. II. 
 
 bargains the facts may be given in Evidence which 
 establish them ; for the law will not enforce such bargains 
 or contracts, (z) 
 
 So in the case of fraudulent transactions, (a) 
 
 Lastly, it is clear, that where a Plaintiff has sued for 
 what he gratuitously undertook, the Defendant, on show- 
 ing that fact, may give Evidence of it under Non- Assump- 
 sit, for under such circumstances he could not be said 
 to undertake to pay ; and so in a variety of similar cases. 
 
 So the Defendant may show that the Action is brought 
 too soon, as if for goods sold on credit, and the credit is 
 not expired ; for a man does not undertake to pay before 
 the time of payment agreed on. 
 
 In all these cases the facts are proved by vivd voce 
 Evidence. 
 
 Thus, the Plea of Infancy is proved, by showing the 
 time of the Defendant's birth. This may be done by call- 
 ing his Father, or Mother, or the Nurse who was present 
 at his birth, and has known him since. So it may be 
 proved by an entry in the Family Bible ; or the Parish 
 Register of the birth, specifying the time when the De- 
 fendant was born ; and by the testimony of Persons who 
 knew his Parents, as described in the Registry ; or the 
 hand-writing of the Father, in his Family Bible, if he is 
 dead i but these latter pieces of Evidence should be carried 
 
 (2) Cowp. 793. 4 Term Rep. 166. 
 (a) Dougl. 433.
 
 CHAP. II.] under the General Issue. 107 
 
 further, by proof of Persons acquainted with the family, 
 that the Defendant was the Person mentioned in the Fami- 
 ly Bible or Register. 
 
 This Evidence is conclusive if the Plaintiff cannot 
 answer it, which he can do in two ways. 1. By showing 
 that the demand is for necessaries suited to the Infant's 
 station and fortune in life ; or, 2. That the Defendant 
 made a* new promise to pay after he became of full age. 
 
 As to giving those matters in Evidence, it .must be 
 observed, that though the Defendant may give Infancy in 
 Evidence under the General Issue of Non-Assumpsit : if, 
 he pleads his infancy, the Plaintiff replies these matters ; 
 but if the Defendant does not plead but gives infancy in 
 Evidence at the Trial ; the Plaintiff will then be at liberty 
 to show those matters in Evidence, though not pleaded. 
 If, therefore, it is expected that the Defendant, though he 
 has pleaded the General Issue, means to rely on proof of 
 his infancy, and the Plaintiff has either of the above 
 answers to give to it, he should be prepared with Evi- 
 dence to that effect at the Trial. 
 
 Thus, in an Action against a Defendant for a livery for 
 a Servant, and other articles, for which, as an Infant, he 
 would not be liable, the Plaintiff proved that the Defen- 
 dant was an Officer in the Army, and that such things 
 were necessary and suitable to his rank. He was held to 
 be liable notwithstanding his infancy, (b) 
 
 The Plaintiff should be therefore always prepared with 
 (A) 8 Term Rep. 578.
 
 108 Of the Evidence in Assumpsik. [CHAP. IL 
 
 proof at the Trial, where it is expected that infancy will be 
 set up ; of the Defendant's actual situation in life, in point 
 of fortune and rank. 
 
 2. Coverture is another defence of the same description ; 
 and may also be pleaded, or given in Evidence, under the 
 General Issue. How that is to be proved at the Trial, vide 
 page 113, 
 
 3. A Release may also be pleaded, or given in Evidence 
 iinder the General Issue, in Assumpsit. And a Release 
 must be by Deed : it is done by proving the execution of 
 it by the subscribing witness ; but it must appear to have 
 been made after the cause of Action accrued ; otherwise, 
 it is of no avail : that will appear by the date. 
 
 This is the effect of a Composition Deed, by which 
 the Defendant assigns his property to Trustees for the 
 .benefit of his Creditors, and which Deed contains a Re- 
 lease. 
 
 But it is good Evidence, under the General Issue, though 
 there is no Deed, for the Defendant to show, (c] that the 
 Plaintiff agreed to take a Composition, secured by collate- 
 ral security, in lieu of his Debt : such as, the acceptance 
 of a friend of the Plaintiff's, or the like, and which was 
 given to him ; or, that the Plaintiff, by offering to come in 
 under a Composition Deed, induced others to sign it. 
 
 4. Payment is good Evidence under the General Issue, 
 and cannot be pleaded specially. This may be proved by 
 
 (c) 1 Esp. N. P. C. 23/5.
 
 CHAP. II.] under the General Issue. 109 
 
 parol, or by the Plaintiff's receipt ; and the production of 
 a receipt, proved under the Plaintiff's hand, is primd facie 
 sufficient, but is not conclusive Evidence. The Plaintiff 
 may show what the circumstances were, and that he 
 did not receive the money at the time the receipt pur-- 
 ports, (d) 
 
 5. Usury may be given in Evidence, under the General 
 Issue in Assumpsit; but is confined to writing instruments, 
 as Bills, Notes, &c. This is proved by showing, that the 
 security was given on a transaction on which there was 
 more than 5 per cent received. 
 
 6. If the Action is for Goods sold, the Defendant may 
 give in Evidence under the General Issue, that they were 
 sold on credit, which is not expired; and this time of cre- 
 dit is either by agreement on the actual sale, or the usage 
 of Trade ; (e) that they were contraband, or unsaleable ; 
 that they were sold by sample, from which they vary ; or 
 any ground which shows it to be unjust to charge him ; or 
 that fraud was practised on him. 
 
 But matters of Law, which go in discharge of the Action, 
 must be pleaded, and proved as they are pleaded. 
 
 Such as 
 
 1. The Statute of Limitations. In this case, if the debt 
 arises under a written Instrument, in which the time of pay- 
 ment is specified, the limitation is ascertained by the lapse 
 
 (rf) 2 Term Rep. 366. 
 
 Or) 1 Esp. Dig. N. P. 112. Cowp. 341. 5 Taunt. 18!.
 
 110 Of the Evidence in Assumpsit [CHAP. II. 
 
 of time intervening between the time of payment and the 
 bringing of the Action. 
 
 In every case of this sort, as 'the time of the debt be- 
 coming due, appears by the Instrument, the time of the 
 commencement of the Suit will appear by the Memoran- 
 dum on the Record, or by the production of the Writ, or 
 of the Copy of it served on the Defendant, which he should 
 have ready to produce, to show the true time when it was 
 sued out. 
 
 If the debt arises from a loan of money, or is a demand 
 arising from any thing collateral, where there is no writing 
 to ascertain it, as on a claim for Rent ; for breach of an 
 Agreement, or the like ; the Defendant should give Evi- 
 dence of the time when the debt was due, and the demand 
 accrued, and then of the commencement of the Suit, as 
 before-mentioned. This Evidence is-, therefore, composed 
 of written, and parol Evidence ; written, by producing the 
 Writ, or referring to the Record, and parol by proof of the 
 time when the debt accrued. 
 
 What is stated here is matter of Evidence, where the 
 Plaintiff joins Issue on the Plea of the Statute only : but 
 as the Plaintiff may reply a new promise, or process, sued 
 out to save the Statute ; in the former case, he must call 
 a witness to prove the promise made at a certain time, or 
 Defendant's hand- writing to a letter, or the like. In the 
 latter, he must produce the Writ, when the time of suing 
 it out will appear, which he must show returned, and the 
 continuance, if any. (f) 
 
 (/) Vid. Cases, l Esp. Dig. N, P. 187. 3 Term Rep. 662. 1 Wils. 
 167.
 
 CHAP. II.] under the Plea of a Tender. Ill 
 
 2. Bankruptcy is a good plea in Assumpsit. (g) 
 
 The Evidence, in support of this Plea, which is given 
 by the Statute, is the production of the Bankrupt's Certi- 
 ficate ; it is not usual to call for Evidence of the Signatures 
 to it. (h) The Plea of Bankruptcy goes to the Country, 
 and the production of the Certificate is prima facie, but not 
 conclusive Evidence for the Defendant : for concluding to 
 the Country, and the Plaintiff not being admitted, for .that 
 reason, to reply the special matter, he is forced to join Is- 
 sue ; (i) he may, therefore, give in Evidence a new pro- 
 mise, made by the Bankrupt after his Bankruptcy ; or, that 
 the Certificate is void, by reason of the Bankrupt's having 
 lost money at Play, &c. ; and, on giving that Evidence, if 
 satisfactory to a Jury, the Plaintiff will have a verdict. 
 These are matters of fact, and proveable by witnesses 
 who heard the Bankrupt's promise to pay, or saw him 
 lose the money at Gaming ; but the Defendant may show, 
 that the promise was conditional only. 
 
 A Tender must be pleaded. (k) 
 
 In this case, the Defendant must prove the offer of the 
 sum tendered, in money, by showing the actual produc- 
 tion of the sum, either in specie, or in a bag, or purse ; 
 by a witness who tendered it to the Defendant, or saw it 
 tendered : (/) and he must be able to prove the same sum 
 was tendered which is mentioned in the Plea, or a great- 
 
 fe) l Esp. Dig. N. P. 190. 
 
 (A). Ludford v. Barber, 1 Term Rep. 86. 
 
 (i) Cowp. 544. 2 H. Black. 1 16. 
 
 (*) 1 Esp. Dig. N. P. 194. 5 Co. 114. 6 Esp. N. P. C. 46. 
 
 (/) Per Lcblanc J. 3 Campb. 70.
 
 112 Of the Evidence in Assumpsit [CHAF. IL 
 
 er, if in moneys numbered, or in Bank-notes, tqgpvhich the 
 Defendant made no objection ; but, if the Tender is in 
 Bank-notes, if they exceed the sum pleaded to be tender- 
 ed, that Tender is bad. So, if the Issue is on a subsequent 
 demand, or refusal, the Plaintiff must prove a demand of 
 the exact sum tendered, (m) But the sum tendered must 
 always be produced in money, or Bank-notes, so that 
 Plaintiff, if he pleases, may count it, and take it, if he 
 wishes to do so ; unless he refuses to take it ; as, if he 
 says, " You need not produce it, I shall not accept it." (72) 
 But, in that case, the Defendant must be able to prove, 
 that the person had the money, ready to pay, if the Plain- 
 tiff would have accepted it, though he did not produce it ; 
 and a Tender to an Agent authorized to receive the mo- 
 ney, is good : but, if the Defendant relies upon a Tender 
 which he has made to an Agent, he must prove, that such 
 Agent was authorized to receive it ; as to the Attorney, 
 who demanded the money (for example) of him on the part 
 of the Plaintiff, (o) 
 
 5. A Set off is a good plea in Assumpsit, or in Debt ; 
 but it may also be given in Evidence where the General 
 Issue is pleaded, and notice has been given of it. 
 
 A Set off arises in cases of mutual demand ; and as it 
 is a claim dh the part of the Defendant from the Plaintiff 
 of a debt due to him, the same Evidence is required on 
 the part of the Defendant to establish that debt, as would 
 be, if he were Plaintiff. As, e. g. if the Defendant sets off 
 
 (TM) 1 Camp. 182. 1 Esp. N. P. C. 68. 
 
 (n) Peake, N. P. C. 88. 
 
 (o) 1 Campb. 477. 2 Mau. Sc Selw. 86,
 
 CHAP. II.] under the Plea of a Set off 1 13 
 
 a debt, due by the Plaintiff to him, for goods sold and de- 
 livered, he must prove the sale, delivery, and value of the 
 goods, by the mode of proof before-mentioned for the 
 Plaintiff: if he claims a Promissory Note of the Plaintiff's, 
 as a set off, he must prove the Plaintiff's hand-writing; 
 and if it was a Note indorsed to him, he must prove the 
 Indorser's hand-writing ; and so in other instances. 
 
 It does not belong to this Treatise to state, what debts 
 can, or cannot, be set off; that belongs to elementary 
 books : (p) it is sufficient to observe, that what can be set 
 off must be an existing, and liquidated debt, and not da- 
 mages ; and such as can be recovered, as a debt at law. 
 
 O ' 
 
 But every description of debt, of whatever nature ; as, by 
 simple contract, Bond, Judgment, or Record, are all ob- 
 jects of set oft*, and must all be proved in the same way as 
 if the Plaintiff had declared on them. As a Bond may be 
 set off, and the subscribing witness must be called, to prove 
 the execution of it. (9) A judgment may be set off ; and it 
 must be proved by a witness producing a copy examined 
 with the Record, (r] 
 
 6. Foreign attachment is also a good Plea. Vide post, , 
 ch. of Debt. 
 
 (A) Vid. Cases "in I Esp. D. N. P. 263 to 268 fiasaitn. Cowp. 57. 
 6 Term Rep. 488. 
 
 (<7) 2 Bur. 1?29. 2 Black. Rep. 826. 
 
 (r) Vid. 2 Burr. 1024. 4 Esp. N. P. C. 207. 2 Term Rep. 32. 
 Bull. N. P. 180. 16 East. 36. 1 Term Rep. 112. 5 Term Rep. 493.
 
 & . 
 114 Of the Evidence in Debt [CHAP. III. 
 
 CHAPTER III. 
 
 OF SETTLING THE EVIDENCE IN THE ACTION OF DEBT. 
 
 A HE Action of Debt is maintainable either on simple, 
 or on special contract, or matter of Record. I shall, there- 
 fore, first consider the Evidence, as it applies to the con- 
 tract, or security ; secondly, as it applies to the Person. 
 
 1. Of settling the Evidence in Debt, as it applies to the 
 
 contract. 
 
 Debt, on simple contract, in respect to the Evidence, 
 differs nothing from the Action of Assumpsit ; and the 
 Rule for settling the Evidence, under the head of money 
 lent, goods sold and delivered, and the other Counts 
 founded upon contract, in that Action, is, in every respect, 
 the same, and, where the Action is Debt, may be refer- 
 red to. 
 
 Debt, on special contract, is 1. For money due on 
 Bonds. 2. For Rent reserved by Deed. 3. On matters 
 of Record. These constitute the principal heads, and will 
 be treated of in their order.
 
 CHAP. III.] on Bond for payment of Money. 115 
 
 1. Of the Evidence in Debt on 21 end. 
 
 I . Of Bonds for payment of Money. 
 
 The Declaration in debt on Bond states, that the De- 
 fendant by .his writing obligatory bearing date, &c., 
 became bound to the Plaintiff in /. - to be paid to the 
 Plaintiff or his Assigns. The breach is, that he had not 
 paid; the Declaration concludes with Profert of the 
 Bond. 
 
 The General Issue is non est factum. 
 
 In this case, the Plaintiff is bound at the Trial to pro- 
 duce the Bond itself, when he has declared with a Profert ; 
 and no secondary Evidence will be admitted, such as a 
 copy, though the original is proved to be lost ; and though 
 in one case it was proved that the Defendant had taken 
 away .the original, and said he had burned it, secondary 
 Evidence was refused.(a) In cases, therefore, where the 
 original is lost, the Plaintiff should not declare with a 
 Profert : but state the Bond to be lost by time or acci- 
 dent, or to be in Defendant's possession. 
 
 The Bond being produced, it must be proved by calling 
 the subscribing witness to prove the execution of it by the 
 Defendant, and the delivery of it as his Bond.() 
 
 The Rule must be taken as general, that the subscribing 
 witness must be called in this, as in all other cases, that 
 
 (a) Smith -v. Woodward, 4 East. 585. 
 Bull. N. P. 254.
 
 116 Of the Evidence in Debt [CHAP. Ill* 
 
 is, if his attendance can by any possibility be procured ; 
 but as this, it sometimes happens, cannot be done, the 
 Courts admit inferior Evidence, that is, proof of the hand- 
 writing of the subscribing witness, and of the obligor of 
 the Bond, In settling, therefore, the Evidence, those 
 cases are to be attended to, as exceptions to the general 
 Rule. But in all cases, the Plaintiff, where he does not 
 call the subscribing witness, must account for why he 
 does not do so, by calling a witness to prove his having 
 used exertions to get him subpoenaed, and showing the 
 circumstances respecting the witness, as the reason why 
 he is not brought forward. 
 
 The Courts have, however, admitted Evidence of hand- 
 writing of the witness, and of the obligor, as proof of the 
 execution of the Bond, in the following instances : (c) 
 
 1. Where the witness has proved to have gone abroad? 
 and to be so at the time of the Trial, so as not ,to be 
 amenable to the process of the Court; as if an Officer or 
 Sailor is absent on service, ex. gr. or there is any other 
 cause to account for his absence : but full proof of both 
 facts is required, (d] 
 
 2. Where it was proved that the witness had absconded, 
 and could not be found, as where he had absconded to 
 avoid his Creditors ;(<?) or had not surrendered to his 
 Commission, though declared a Bankrupt : but in all 
 cases, Evidence must be given of diligence and inquiry at 
 the places where the witness had been known to reside or 
 
 (c) l Esp. Dig. N. P. 282. 
 
 (rf) Dougl. 89, 7 Term Rep. 266. 1 Campb. 171.1 Taunt. 364. 
 
 (e) 2 East. 183. 1 Campb. 304. 1 Taunt. 364.
 
 CHAP. III.] on Bonds or Deeds. 117 
 
 frequent, and inquiries made of Persons to whom he was 
 
 known, (f) 
 \ 
 
 In fact, the Rule as requiring the calling of the sub- 
 scribing witness in all cases must be noticed : and where, 
 from any circumstances, it is proved that, after very 
 diligent search and inquiry, the witness cannot be found, 
 secondary Evidence, that is, of his hand-writing, is ad- 
 mitted. 
 
 In this respect, these points are to be observed in 
 proving the execution of Bonds and of other Deeds. 
 
 1. If there is no subscribing witness, it is sufficient for 
 the Plaintiff to prove the hand- writing of the Defendant, or 
 his admission. (#) 
 
 2. If the subscribing witness is proved to be dead, 
 proof of his hand- writing is sufficient ; and if there are 
 two subscribing witnesses, one dead, and the other beyond 
 the sea, proving the hand-writing of him that is dead is 
 sufficient.^) 
 
 3. Where from change of circumstances he has 
 become a Party on the Record : as if the Obligee had 
 made the subscribing witnesses his Executor : this fact 
 being established, Evidence of his hand-writing will be 
 sufficient.(e) 
 
 4. Where the witness has become infamous from a 
 
 (/) 2 Campb. 282. ($) 1 Esp. Dig. N. P. 282. 
 
 (A)2Atk.48. (j) 1 Stra. 3^f
 
 118 Of the Evidence in Debt [CHAP. III. 
 
 conviction, and so inadmissible, proof of his hand-writing 
 will be sufficient, (k) 
 
 5. If a fictitious name is put to a Bond as a subscrib- 
 ing witness, on proof that it is so, it will be sufficient to 
 prove Defendant's hand- writing. (/) 
 
 And this Rule, requiring the subscribing witness in all 
 cases to be called where he can be procured, (m) is carried 
 so far, that the obligee is not suffered to admit his own 
 hand- writing ; and even when on an examination on oath 
 he admitted it in a Deposition before. Commissioners of 
 Bankrupts, such Deposition was not allowed as Evidence 
 of his execution of it. 
 
 2. Of the Evidence in Debt on Sail Bonds. 
 
 This Action may be against the original Defendant, or 
 against the Bail. If the Action of Debt is on a Bail Bond 
 against the Bail, it is either by the Sheriff to whom it is 
 given, or by the Assignee of the Sheriff, under the Statute of 
 Anne. The Declaration, if by the Assignee, sets out the issu- 
 ing of the Writ in the original Action ; the delivery to the 
 Sheriff; the arrest of the Defendant ; that the Defendant 
 in the present Action became Bail to the Sheriff, condition- 
 ed for the Defendant's appearance at the return of the 
 Writ ; that the Defendant did not appear according to 
 the condition of the Bail Bond ; and, lastly, the assign- 
 ment of the. Bond by the Sheriff to the Plaintiff: if the 
 Plea is non est factum, the Plaintiff need only prove the 
 execution of the Bail Bond itself by the subscribing 
 
 (k} 2 Stra. 833^ (7) Peake's N. P. C. 23. 
 
 (m) Doug. 2f4 East. 53.
 
 CHAP. III.] on Bail Bonds. 119 
 
 witness as laid down before ; for though the Declaration 
 contains many averments, and the title to sue, is derived 
 from the assignment by the Sheriff in pursuance of the 
 Statute, as that is by Indorsement only, and not by Deed, 
 the only Deed mentioned in the Declaration is the Bond, 
 the Plea applies to it, and it is the only Issue on the 
 Record ; so that the execution of it being proved by the 
 subscribing witness, the Plaintiff is entitled to a verdict. 
 
 It is, however, not unusual, as a trick in this Action, to 
 plead nil debet ; which is a bad Plea in law, and should be 
 demurred to : but if suffered to stand, and Issue is joined 
 on it, in that case the Plaintiff is bound to prove every 
 averment in the Declaration, viz. " The issuing of the 
 Writ, the arrest of the Defendant, the execution of the 
 Bond, and the assignment by the Sheriff." 
 
 3. Of the Evidence in Debt on Bonds of Indemnity. 
 
 If the Bond sued on is an Indemnity Bond, or for per- 
 formajice of Covenants, so that no specific sum of money 
 appears to be due on the face of it, but is to be decided by 
 the damages .to be found by a Jury on the breaches to be 
 assigned, and non estfactwn is pleaded, the Plaintiff in that 
 case must assign breaches under Stat. 4. and 5. Wm. III. 
 That was formerly done in the Replication ; but the usual 
 course now is, for the Plaintiff to set out the condition of 
 the Bond, and assign the breaches in his Declaration. 
 But if the Plaintiff declares generally on the Bond, and 
 the Defendant craves oyer of the condition, and pleads 
 performance, the Plaintiff in his Replication sets out the 
 breaches on which Issue is joined. 
 
 In these cases, if non estfactum is pleaded, the Plaintiff
 
 
 120 Of the Evidence in Debt [CHAP. III. 
 
 must prove the execution of the Bond, and then give Evi- 
 dence of the breaches. 
 
 As if the Bond was to indemnify a Party who had taken 
 a Clerk, and the condition was for his faithful service, and 
 accounting for all moneys of the Plaintiff's which he should 
 receive, and the Plaintiff assigned a breach, that the Clerk 
 received from A. B. a certain sum of money belonging to 
 him, which he had not accounted for. He must call A. 
 B., or some other witness, to prove, that A. B. paid him 
 such a sum of money on the Plaintiff's account ; and it 
 will lie on the Defendant to prove, that he did account 
 for it. 
 
 4. If the Bond is for performance of Covenants in a 
 Lease, or Indenture, the Plaintiff must produce, and 
 prove the execution of the Lease, or Indenture of De- 
 mise, as well as the Bond ; by the subscribing witness ; 
 and then give Evidence as to the Covenant broken, by 
 calling a witness, to prove the fact. He must then prove 
 the sum at which he ascertains his damages. 
 
 5. Of the Evidence in Debt on Annuity Bonds. 
 
 V 
 
 If the Action is on an Annuity Bond or Deed to recover 
 arrears of the Annuity, the Plaintiff must prove the exe- 
 cution of the Deed, and also that the Grantor, or Person 
 for whose life the Annuity was granted, is living. 
 
 6. If the Action is on a Bond for the performance of an 
 Award, the Plaintiff must prove the execution of the Bond, 
 and then the Award must be produced, and the execution 
 of it by the Arbitrator be also proved : if there is a sub- 
 scribing witness to it, he should be called to prove it : if
 
 CHAP. III.] on Annuity Bonds, and for Rent. 121 
 
 there is any thing in the Award by which the Plaintiff is 
 required to do any thing previous to his suing for the money 
 awarded, he must prove by a witness that he has done it , 
 and he should, lastly, prove a demand of the money from 
 the Defendant, or that he attended at the place where the 
 Arbitrator had directed it to be paid, and that no one 
 attended to pay it.(w) 
 
 7. Bonds are suable against the Heir, or Executor of 
 the Obligor. Where such an Action is brought, in addi- 
 tion to proving the Bond, in which it must appear from 
 the words, that the Obligor bound his Heirs, Executors, 
 or Administrators, the Plaintiff must prove the Defendant 
 to be Heir to the Obligor, by calling a witness who knew 
 the Obligor, and his family, and that the Defendant is his 
 Heir at Law. If the Defendant is sued, as Executor, or 
 Administrator, the book from the Commons, in which are 
 the entries of Probates, and Administration, should be pro- 
 duced by an Officer of the Court. 
 
 II. Of the Evidence in Debt for Rent. 
 
 This Evidence is different where it is reserved on a lease, 
 or on a parol demise, though in both the Declaration is 
 general. 
 
 If the Action isDebt for Rent reserved by Lease, and 
 non est factum is pleaded : the Plaintiff has only to prove 
 the execution of the Lease by the subscribing witness, 
 and state how much Rent is in arrear ; if he goes for more 
 
 (n) 2 Marsh, Rep. 304.
 
 122 Of the Evidence in Debt [CHAP. III. 
 
 than is due, the Defendant may prove the Rent really due, 
 by showing when he last paid ; and though the Defend- 
 ant may prove the Rent really due, by showing when he 
 last paid ; and though the Defendant holds under a Lease, 
 or Indenture, of Demise, the Plaintiff is not required to 
 prove any entry, or occupation, by the Defendant ; but 
 if the Action was Debt for Rent on a parol demise, or not 
 under Seal, Plaintiff must prove actual entry and occupa- 
 tion, (o) 
 
 If the Defendant plead riens en arrere, alone, the Issue 
 lies upon him, and he must prove payment. 
 
 If the Action is Debt under the Stat. 4. Geo. IT. c. 28, 
 for double the value of the Premises, which the Defendant 
 held, as Tenant to the Plaintiff, and held over after notice : 
 the Plaintiff must prove the antecedent Tenancy of the 
 Defendant to him, as Landlord, and when his Tenancy 
 regularly ended ; that he had notice to quit, which cor- 
 responded with his holding, that is, if his Tenancy expired 
 at Michaelmas, the notice must do so too : this must be 
 proved, by the Person who served the notice to quit on 
 the Defendant, the Tenant ; and the Defendant should 
 have notice to produce the original. The Plaintiff should 
 also regularly prove a demand by him of the possession on 
 expiration of the notice to quit, (The notice to quit has 
 been held to be a sufficient demand in Williamson v. Col- 
 ley, 5 Burr. 2694. But, query, as the word demand is 
 used in the Stat.) and that the Defendant did not deliver 
 up the possession ; and, lastly, the value of the Premises 
 let. The Rent reserved, is usually taken as the value .: 
 
 (o) Bellasis v. Burbach, 1 Salk. 209.
 
 CHAP. III.] for Rent, or under Statute. 123 
 
 but the Plaintiff is not bound by it, but may bring wit- 
 nesses to prove the actual value, which, in the cases of 
 old Leases, usually much exceeds the Rent. 
 
 If the Action is under the Stat. 11 Geo* II. c. 19. to re- 
 cover double Rent after a notice to quit, by the Tenant, the 
 same Evidence of Tenancy must be given, as above sta- 
 ted. The Plaintiff must then produce, and prove, the 
 notice of quitting, by proving the service of the notice on 
 him, and prove Defendant's hand-writing, if his name is 
 subscribed to it ; or, that it was given, and served, by his 
 authority. He must then prove, that the Tenant did not 
 quit at the time specified in the notice ; and, lastly, the 
 yearly Rent, under which he held. 
 
 If the Action is Debt, for three years' Rent of the Pre- 
 mises, by reason of the Tenant* snot having givennotice of an 
 Ejectment served on him, by which there has been a re- 
 covery In lEjectment : the Plaintiff must prove, that the 
 Defendant was his Tenant ; and that an Ejectment was 
 served on him. This Evidence must be had from the 
 Lessor of the Plaintiff, or rather, from his Attorney, by a 
 subpoena duces tecum of the Declaration and proceedings 
 in Ejectment, and, by calling the Person who served the 
 Declaration in Ejectment on the Tenant, (the Defendant ;) 
 this witness may be found out by examining the Affidavits 
 filed with the Cleik of the Rules for Judgment against the 
 casual Ejector, if not otherwise to be found out ; and last- 
 ly, the Judgment in Ejectment, and the Writ of Posses- 
 sion executed, the former by. an examined copy of it, the 
 latter by proving a Warrant made out on the Writ of Pos- 
 session to the Sheriff's Officer, who must also have a sub-
 
 124 Of the Evidence in Debt [CHAP. IIL 
 
 poena duces tecum of the Warrant, and prove that he had 
 executed it. 
 
 If an Assignee of the Reversion brings debt for, Rent, 
 he must prove all the assignments from the original 
 Lessor,( p) and call the subscribing witnesses, if by Deed j 
 if any are by Will, he must prove the Will, or if the Les- 
 sor was himself only Tenant for years, Probate of his Will 
 will do. 
 
 In Debt for Rent, not under Seal, the Evidence is the 
 same as in Assumpsit for Use and Occupation. 
 
 III. Of the Evidence in Debt on matters of Record. 
 
 In Debt on Recognisances of Bail against the Principal,, 
 the Evidence, in this case, depends on the Plea. (2) The 
 Recognisance itself is matter of Record ; and if Defendant 
 pleads nul tiel Record, it is tried by the Court ; so is the 
 Judgment recited in the Declaration. But he may plead 
 to the Country, as payment, or render of the Principal in 
 due time. The first is a matter of fact to be proved, as 
 before stated, in the case of payment : if he pleads a ren- 
 der, he must give in Evidence the Book of the Marshal 
 of K. B. or the Warden of the Fleet, to be produced by 
 the Officer, or an examined copy of the render as entered 
 there, by which the true time of it will appear. 
 
 If the Debt is against one of the Bail on the Recogni- 
 sance, he may plead the same Pleas, and give the same 
 Evidence as just now stated in the case of the Principal : 
 
 C/0 Vid. Esp. .N. P. Dig. 243. (?) Chitty, Plead. 2d Ed. 220.
 
 CHAP. III.] On Matters of Record. 125 
 
 but he may also plead, and prove, the death of the Princi- 
 pal before the return of the ca. sa. issued in the Cause, 
 or that no ca. sa. issued. (/?) 
 
 If the Action is Debt on Judgment. 
 
 The Judgment, when recovered, being matter of Re- 
 cord, when Plaintiff declares on it, and Defendant pleads 
 to the country, as payment, e. g. an office, or attested co- 
 py of the Judgment, produced by a witness, who examin- 
 ed -it with the original, and proof that it is a correct copy, 
 is sufficient Evidence for the Plaintiff. Evidence of the 
 payment lies on Defendant. 
 
 But Debt also lies on foreign Judgments : but they are 
 not considered as- matters of Record, so that the mere pro- 
 duction of a copy of the Judgment is sufficient : they are 
 required to be further authenticated. They are, as ex- 
 pressed by Ld. C. J. Eyre, 2 H. Black. 410. primd facie 
 Evidence of a Debt, and have the force of a simple con- 
 tract. They are, therefore, so declared on, and then are 
 thus proved :(q) Judgments from the Courts in the West 
 India Islands, or Colonies abroad, are given in Evidence 
 here, by producing a copy of the Judgment under the Seal 
 of the Court ; a copy, though authenticated by an Officer 
 of the Court, will not be sufficient, even though it were 
 signed by the Judge of it.(r) It is then necessary to prove 
 
 that the Seal affixed to the Copy, is the Seal of the Island, 
 
 . 
 
 (/O 1 Esp. Dig. N. P. 226. Cro. El. 733. 2 Stra. 915. 4'Buriv 
 2134. 
 (?) Walker r>. Witter. Dougl. 1. (r) 2 Starkie, 6.
 
 126 Of the Evidence in Debt [CHAP. III. 
 
 or Colony, without which, it is inadmissible ; and proof of 
 the Judge's hand is not sufficient.^) 
 
 Judgments from Ireland, and Scotland, are proved by an 
 examined Copy of the Judgments there, produced by the 
 Person who examined them, and who must swear to their 
 being correct. 
 
 I shall now consider the Evidence in Actions of Debt, 
 which respect the Person, and the Rules as to establishing 
 the character in which the Plaintiff sues, or the Defendant 
 is sued, as where .the Action is by, or against, Husband 
 and Wife, or by, arid against, Executor or Administrator, 
 are the same as before laid down. 
 
 I shall, therefore, only observe on the most useful and 
 important. 
 
 1. Of the Evidence in Debt against the Sheriff. 
 
 Debt lies against the Sheriff, for an escape of a Defend- 
 ant in execution ; and the whole sum will be recovered 
 with which he was charged in execution.(j) 
 
 The Evidence which must be brought on the part of 
 the Plaintiff is, 1. The attested Copy of the Judgment 
 recovered in the original Action against the Person who 
 escaped. 2. The Plaintiff next is to prove, a Writ of ca- 
 pias ad satisfaciendum obtained on that Judgment, directed 
 to the Sheriff, and the delivery of it to the Sheriff, and a 
 Warrant made out on it, directed to some officer of the 
 
 (*) 4 Esp. N. P. C. 228. (0 Esp, Dig. N. P. 235,
 
 CHAP. III.] 171 Actions against the Sheriff. 127 
 
 Sheriff who arrested the Defendant : his actual caption by 
 the Officer must be proved ; and after such caption, that 
 the Defendant was seen at large. 
 
 The Copy of the Judgment is had at the Treasury, and 
 must be proved by the witness who examined it. The 
 Writ, which must be proved to have been delivered to the 
 Sheriff, is returned, and filed, at the same place ; in which 
 case, the Defendant must have an attested Copy of the 
 Writ, and Return, proved by a witness in the same way ; 
 and it will also show for what sum the Writ was marked, 
 and that proves these averments : and if there is also his 
 return of cepi corpus, it also establishes the fact of the ac- 
 tual arrest ; and then the whole of the remaining Evi- 
 dence is, that after that return the Defendant was seen at 
 large. 
 
 2. If the Action is against the Sheriff on Stat. 29 Eliz. 
 c. 4. That Action is usually at the suit of the Defend- 
 ant, under the Execution against whose goods an over 
 lev has been made. The Plaintiff must prove the suing 
 out of a Writ of fi.fa. directed to the Sheriff, and deliver- 
 ed to him. The sale by the Sheriff must be proved by 
 the same Evidence as before, and the amount of the levy, 
 and what has been paid over to him : if the Sheriff has 
 charged, (exclusive of what is allowed by Stat. 43 Geo. 
 III.) more than the poundage allowed by the Stat. 29 
 Eliz. which is ascertained by deducting all the regular 
 charges from the sum levied ; on Evidence of that so 
 made out, the Plaintiff is entitled to recover. (u) 
 
 So if the Defendant is taken under a ca. sa. and the 
 () 1 Esp. Dig. N. P. 236. 2 Term Rep. 238.
 
 128 Of the Evidence in Debt [CHAP. III. 
 
 Sheriff makes the Plaintiff pay more to him than he is 
 entitled to as before stated, as allowed by the Statute and 
 proves that fact, he will be entitled to recover the penalty. 
 
 This Action will also lie against the Marshal of K. B., 
 the Warden of the Fleet, or any Gaoler having the custody 
 of Persons for Debt. 
 
 In these Actions, the Plaintiff must prove the Judg- 
 ment against the Defendant who escaped, as in the last 
 Precedent ; and then prove the committitur to the custody 
 of the Marshal, Warden of the Fleet, or other Gaoler, in 
 this way. He should procure a copy of the committitur 
 from the books of the Prison, by which, it will appear, 
 that the Party was in custody, arid for what sum. He 
 should give notice to produce the original book at the 
 Trial ; and he should then prove by a witness who knew 
 the Person of the original Defendant, that he was seen at 
 large after his having been so in custody. 
 
 Debt is also the mode of declaring for penalties uMer 
 Penal Statutes, and lies at the Suit of an Informer. 
 
 It would be extending the subject of this Treatise too 
 far, to go into all the cases of Debt on Penal Statutes ; it 
 is sufficient to observe, that the strictest Evidence is 
 required to bring the Defendant within them: and, in 
 settling the Evidence, it ought never to be done without 
 having the Statute open, and seeing that there is Evidence 
 to satisfy every thing which the Statute requires. Thus, 
 for example in Debt, for killing Game without a qualifica- 
 tion, under Stat. 5 Anne, c. 14. 
 
 The Evidence, required in this case, is the fact of the
 
 CHAP. III.] against the Sheriff or Gaolers. 129 
 
 Defendant using a gun or snares to destroy the Game ; 
 which is done by a witness who saw the fact : but it is not 
 sufficient to obtain a Verdict, that the Defendant, being 
 unqualified, was seen with a gun : he must be proved to have 
 been using it. That is, the Evidence must show that he 
 was seen beating for Game, or firing at them, which would 
 leave no doubt that he was using it for the destruction of 
 the Game. But the Evidence required, where the Action 
 is for exposing Game for Sale, is not so strict. Proof of 
 the actual Sale of it is not required, as the fact of its being 
 seen in the unqualified Person's possession is suffi- 
 cient, which, if proved by a witness, is sufficient ; but 
 the reason of this is, that it is declared to be so by the 
 Statute. In other cases of Penal Actions the strictest 
 proof is required. 
 
 Such is the Evidence on the part of the Plaintiff; that 
 which is to be brought on the part of the Defendant 
 depends, of course, on the Issue, and I shall consider it 
 under the different Pleas. 
 
 The usual Pleas in Debt on Specialty, for payment of 
 money, are, non e-stfactum, solvit ad, or post, diem. 
 
 1. Under 720/2 estfactum, pleaded to Debt on Bond, the 
 Defendant may give in Evidence, what shows it to be 
 void on the face of it, as well as what denies the execution, 
 or that he ever delivered it as his Deed. 
 
 Such as rasure, interlineation, or breaking off of the 
 Seal; any of which appearing, render the Bond void.(t>) 
 
 .(v) Esp. Dig- 251. Cro. El. 626. 
 R
 
 130 Of the Evidence in Debt [CHAP. Ill 
 
 These facts will appear on the production of the Deed, 
 the Plaintiff being bound to produce and prove the execu- 
 tion of it, when non est factum is pleaded. 
 
 So the Defendant at the Trial may, under that Issue, 
 give in Evidence that he never delivered it as his Deed ; 
 or that it was made to the Plaintiff's Wife, and that he 
 refused to receive it ; or that it was delivered as an escrow ; 
 that there has been an erasure in a material part, or an 
 alteration, (a?) 
 
 So in the case of a Bail Bond as it is founded on a 
 Writ, and is given for the appearance of a Defendant at 
 the return of the Writ :(z/) the Bond being proved the 
 Defendant by either producing the Writ, or relying on it 
 as stated in the Declaration, and then referring to the date 
 of the Bail Bond ; if it appears to be subsequent to the 
 return of the Writ, it shows it to be void ; for, being after 
 the return of the Writ, the condition could never be 
 performed, it being for the Defendants' appearance at the 
 return. 
 
 Wherever, therefore, it appears on the face of the Bond 
 that it is void, it may be given in Evidence under non est 
 factum. But extrinsic matters which avoid the Bond in 
 law, must be pleaded and proved, as Usury ; that the 
 Bond was given for an illegal purpose, as Simony ; for 
 money won at Play ; for the sale of an Office ; in restraint 
 of Marriage, or of Trade, and the like : these must be 
 made out at the Trial by Evidence. 
 
 2. If the Plea is solvit ad diem or post diem. 
 {*) 4 Esp, N. P. C. 255. O) 4 Mau. & Selw. 338.
 
 CHAP. III.] on the Plea of Solvit ad diem. 131 
 
 This Issue is' supported by Evidence on the part of 
 Defendant of actual payment, as by the production of a 
 Receipt in the Plaintiff's hand- writing ; or the Defendant 
 may rely on the presumption of law, that from that length 
 of time, payment will be presumed, in which case no 
 Evidence on his part is required ; for the date of the Bond 
 ascertains the debt ; and if twenty years have elapsed, and 
 no interest been paid, it is conclusive Evidence for him 
 under the Issue of solvit ad diem ; and the expiration of the 
 20 years is ascertained by showing the time of bringing 
 the Action. 
 
 It should, however, be observed, that the period 
 intervening between the date of the Bond, and the bring- 
 ing the Action, must be full 20 years ; for any time short 
 of it will not be sufficient. (z) 
 
 3. Foreign Attachment is a good Plea. 
 
 This is usually proved by an Officer, or Solicitor, of the 
 City Court, who produces the original Proceedings in the 
 Cause, and verifies them to be so. 
 
 But further Evidence should be given, that the Plaintiff 
 had notice of the Proceedings in the Courts below. 
 
 4. Entry and Eviction is a good Plea in Debt for 
 Rent ;() but it may be given in Evidence under the 
 General Issue of nildebet. Vid. post. 161. 
 
 This is a fact to be proved by Witnesses. (b] And the 
 
 (z) 1 Esp. Dig. N. P. 253. 1 Term Rep. 270. 1 Campb. 27. 
 (a) I Esp. Dig. N. P. 260. (b) Hunt v. Cope, Cowp. 242.
 
 132 Of the Evidence in Debt [CHAP. III. 
 
 Defendant must give in Evidence the actual entry by the 
 Plaintiff on the Premises; and not only that, as that 
 might only amount to a tresspass, (c] but he must further 
 prove, that he was expelled by the Plaintiff from the 
 possession of the whole, or a part, of the thing demised, 
 and that he kept the possession against him.(J) 
 
 Vid. post, in Covenant, next Chapter. 
 
 4. A discharge under the Insolvent Debtors* Act is a 
 good Plea in Debt or Assumpsit : it is either under the 
 Lords' Act, or under the general Insolvent act. 
 
 If under the former, the Defendant must produce the 
 Rule of Court by which he was discharged ; if the latter, 
 the order of the Insolvent Court. 
 
 5. If the Pleas are by an Executor or Administrator. 
 
 They are, first, a Retainer, though the Defendant may 
 also give it in Evidence, under plene administravit ; (e) 
 2. Plene Administravit ; and, 3. Ne unques Exectuor. 
 
 1. If Defendant pleads a Retainer, he is bound to 
 establish his own- Debt by the same- Evidence which 
 would be required to establish the demand as a Debt 
 against the Testator ; as if it was a Bond Debt, by prov- 
 ing it by the Subscribing Witness ; if by a Note, by 
 proof of it as before stated in Assumpsit; and having 
 done so, the law gives him his right of Retainer to their 
 amount. 
 
 (c) Reynolds v. Buckle, Hob. 326. (rf) Vid. 2 East. 575. 
 <0 3 Burr. 1580. 1 Esp. Dig. N. P. 273.
 
 CHAP. III.] on Pleas by Executors, fcfc. 133 
 
 2. If Defendant pleads plene administravit. 
 
 That Issue is supported, by proving the Payment of 
 Debts due by the Testator to others, which were of a 
 higher or equal degree with that for which the Action is 
 brought, and which were so paid before the Action 
 brought.(/) 
 
 Evidence of these Payments are matters of fact, and to 
 be proved by Witnesses : this most usually is done by the 
 Parties themselves, to whom the Payments have been 
 made, and who can establish the existence of the Debts 
 due to them, as well as the Payments. So if there were 
 any written Securities of the Testator, as Bonds or Notes, 
 paid off by the Executor, they should be produced and 
 proved to be paid ; but they must be shown to be valid 
 Securities, and entitled to preference, (h) If, therefore, 
 the Executor sets up a Bond as paid, he must prove the 
 sealing and delivery of it ; but the proof of mere Payment 
 of simple contract Debts is sufficient.^') 
 
 If the Defendant pleads plene administravit, on which 
 Issue is joined, in order to charge him with Assets, the 
 Plaintiff must show what effects he had : such as the 
 value of Testator's Stock, Debts, &c. : and for that pur- 
 pose he may give in Evidence the Inventory he exhibited 
 to the Spiritual Court, and signed by him ; and if so it 
 shall charge him to the extent : and the Plaintiff may also 
 surcharge it, by showing the Property undervalued or 
 Property omitted ; and if in the account the Defendant 
 
 (/) 1 Esp. Dig. N. P. 275. (A) 1 Esp. Dig. 286. 
 
 (i) Saunderson v. Mitchell, 1 Show. 81.
 
 134 Of the Evidence in Debt under [CHAP. Ill- 
 
 gave in a list of Debts, not distinguishing the good Debts 
 from the bad, he shall be charged with a 
 
 3. If the Defendant pleads Ne unques Executor. 
 
 This Plea is a denial of the Plaintiff's right to sue in the 
 character of Executor. It is not a mere denial he has not 
 got Probate of the will, for that he makes Profert of, but it 
 is that he is not rightful Executor. 
 
 As, for example, if Probate had been granted to the 
 Plaintiff of a Will, which was afterwards set aside for For- 
 gery, or Fraud : though the Plaintiff once was in possession 
 of a Probate, and so could have made a Profert, the Let- 
 ters testamentary being annulled, he is no longer Execu- 
 tor, ne unques Executor. In a case, therefore, so circum- 
 stanced, the Defendant should give in Evidence the 
 sentence of the Spiritual Court, by which the Will was 
 set aside, and a new Probate ordered to be granted, by 
 which it will appear, that the Plaintiff was not then Ex- 
 ecutor. 
 
 Under this Issue the Defendant may show, that the Pro- 
 bate has been irregularly granted, in respect of bona nota- 
 bilia. 
 
 9 
 
 Thus, if the Plaintiff, had declared as Executor, and 
 made profert of a Probate, granted by the Bishop of Lon- 
 don, and the Defendant proved, that the Testator had bo- 
 na notabilia in the Diocese of another Bishop,(/) the Pro- 
 bate would be void) for there should then have been a Pre- 
 ' 
 
 (*) 1 Esp. Dig. 286. 1 Dig. N. P. Esp. 279.
 
 CHAP. III.]] the Plea of ne unques Executor. 135 
 
 rogative Probate^m) or Letters of Administration ; the 
 Defendant, therefore, in support of his Plea should give 
 Evidence of the Deceased having left Assets in different 
 Dioceses ; and then he supports his Plea : and as to this 
 it may be observed, that Bonds, or Specialties, are Assets, 
 where the Securities are when the Testator died ; but 
 Debts by Simple Contract follow the Person, and are As- 
 sets where he died.(w) 
 
 So if the Action is brought for a greater sum than is sworn 
 to, on granting the Probate (or Letters of Administra- 
 tion)^) the Executor cannot recover ; for then the Probate, 
 or Letters of Administration, are void, for want of a pro- 
 per stamp.(/>) 
 
 To establish this defence, the Defendant must produce 
 a copy of the Bond given on granting the Probate, or Ad- 
 ministration, and filed in the Prerogative Court, or Office, 
 of the Bishop, or have the original produced by the Offi- 
 cer. As the Probate, or Letter of Administration, must 
 be produced under the Plea of ne unques Executor, it will 
 then appear, whether the Probate, or Letter of Adminis- 
 tration have been granted for a sufficient sum. 
 
 And it should seem, that the Defendant might go into 
 Evidence, to show how much Property the Plaintiff had 
 of the Testators, and then by the production of the Bond, 
 and what appears on the face of the Probate viz. " sworn 
 to be under / = " the Plaintiff could not succeed on this 
 
 (m) 1 Str. 74. (n) Cro. El. 472. 
 
 (o) 3 Taunt. 1 13. (fi) 2 Mau. & Selw. 553.
 
 136 Of the Evidence in Debt [CHAP. III. 
 
 Plea : so Defendant may show the Seal of the Ordinary 
 forged. 
 
 6. Of the Evidence in Actions against Assignees of a Lease 
 or Term, for Rent in Arrear. 
 
 If the Leasee assigns,(y) he remains still liable in Debt 
 for Kent, becoming due after Assignment, (r) unless the 
 Lessor has accepted Rent from the Assignee, in which 
 case, he can never sue in Debt the first Lessee.(^) 
 
 If, therefore, there has been an Assignment, and the 
 Lessor has accepted Rent of the Assignee, and he sues 
 the original Lessee ; the Lessee, if he sued, will be dis- 
 charged, by producing, and regularly proving, the Deed 
 of Assignment to some Person : then proving the receipt 
 of Rent by the Plaintiff from such Person as Assignee ; 
 and for that purpose, the Assignee is a good Witness. 
 
 But if the Action is against an Assignee,() for Rent in 
 arrear, he is only liable while in possession ; and he may 
 show an Assignment made by him prior to the cause of 
 Action accruing, to a third Person, by producing, and 
 proving such Assignment, and that he was not in posses- 
 sion during the time for which the rent is sued for : for 
 this purpose his Assignee is a good witness to prove, when 
 he became so. 
 
 An Executor is considered as an Assignee in Law ; and 
 the same Rule applies to him.(w) 
 
 (?) Esp. Dig. N. P. 233. (r) Walker's case, 3 Co. 22. 
 
 (*) Marsh v. Bruce, Cro. Jac. 334. (r) 2 Stra. 1221. Salk. 81. 
 (t*)Cro. Eliz. 715.
 
 CHAP. Ill,] under the Plea of Nil Debet. 137 
 
 7. Of the Evidence on the Plea of Accord, and Satisfac- 
 tion. 
 
 As the Plea must set out what the Defendant ^ave in 
 
 o 
 
 satisfaction of the Plaintiff's demand, he must prove,^r^, 
 that the Plaintiff agreed to take the thing mentioned, in 
 satisfaction of his demand ; and, secondly, that it was ab- 
 solutely delivered, so that the whole transaction is com- 
 plete and ended. That is to be done by witnesses who 
 were present when the Plaintiff agreed to take the thing 
 stated in discharge of his demand, and then the Defendant 
 must prove the delivery of it to the Plaintiff. 
 
 8. Of the Evidence under the Plea of Nil Debet. 
 
 In Actions of Debt on Simple Contract, Nil Debet is 
 the General Issue ; and it is material to consider, what 
 the Defendant may give in Evidence under it.(.r) 
 
 1. He may produce the Writ, and sho\v -when the 
 cause of Action accrued ; whereon the Statute of Limi- 
 tations may attach, and be a bar to the Action : for the 
 Statute need not be pleaded, (y) 
 
 2. He may give Entry and Expulsion in Evidence 
 under that Issue : though he may also plead it : for the 
 Plaintiff would fail in that case to prove, that the Defend- 
 ant " entered and was thereof possessed ;" ante, 65. (z) 
 
 3. That he was only Executor durante minore xtate ;(a) 
 
 (*) Esp. Dig. Vol. I. 287. (y) Anon. Salk. 278. 
 
 (z) 1 Sid. 151. (c) 1 Mod. 173.
 
 138 Of the Evidence in Debt fcte. [CHAP. III- 
 
 that he paid Debts and Legacies, and delivered over to 
 the rightful Executor all the residue of the Testator's 
 effects on his coming of age. 
 
 These are the principal Pleas in this Action, and 
 Evidence in support of which will afford a sufficient de- 
 fence to the Defendant. It may, however, be observed in 
 general, that almost every Plea which is good in Assump- 
 sit in Discharge of a Debt, is Evidence in this Action ; 
 and by referring to them there, the Rules for settling the 
 Evidence will be found at length.
 
 CHAP. IV.] Of the Evidence in Covenant, &c. 139 
 
 CHAPTER IV. 
 
 OF SETTLING THE EVIDENCE IN THE ACTION OF CO- 
 VENANT. 
 
 A.N Action of Covenant must be founded on a Deed, 
 and it must be so stated in the Declaration,() Non est 
 factum is pleaded in almost every instance. The Plain- 
 tiff must prove the execution of it by calling the subscribing 
 witness ; subject, however, to the exceptions before- 
 mentioned in the preceding Chapter. Vid. ante, page 
 134. for Cases in which it is not required to call him.(6) 
 
 Covenants being for various purposes, it is impossible 
 to put particular Cases, some few leading ones excepted. 
 General Rules can only be given : therefore 
 
 1. Where the Plaintiff assigns a breach generally in the 
 words of the Covenant, and specifies how it has been done, 
 his Evidence must correspond with his particular state- 
 ment of the breach. (c) 
 
 As where there is a Covenant " not to buy or sell for a 
 given time, without leave of the Plaintiff :"(d) and Plain- 
 tiff assigns a breach, that the Defendant did sell to A., B., 
 
 (a) Esp. Dig. N. P. 320. (6) 2 Stra. 814. 
 
 (c) 1 Esp. Dig. N. P. 331. (O 3 Term Rep. 308.
 
 140 Of the Evidence in Covenant [CHAP. IV. 
 
 and C., he must prove that he did so, by proving sales to 
 some of those particular Persons ; and they are good 
 witnesses to prove it : though other witnesses may be 
 called to prove the same facts. 
 . 
 
 2. If there is any thing to be done by the Plaintiff, pre- 
 vious to what the Defendant covenants to do, he must 
 prove by Evidence that he did it, or offered to do it. 
 
 As if the Defendant covenants to pay a certain sum of 
 money, on the Plaintiff executing to him an assignment of 
 certain Premises, the Plaintiff should prove, that he either 
 did assign, by proving a Deed regularly executed and 
 delivered, or that he tendered and offered such a Deed to 
 the Defendant, which facts must be proved by a witness. 
 
 3. As the verdict in Covenant is for Damages, the 
 Plaintiff should be prepared not only to prove a breach of 
 the Defendant's Covenant, but also what sum will be a 
 sufficient recompence to himself for the breach of it. 
 
 As in Covenant for not repairing a House, the Plain- 
 tiff must not only prove that the House was ruinous and 
 decayed, but also what sum it would require to repair it, 
 as that is the proper measure of his damages : this must 
 be done by witnesses ; otherwise he will get nominal 
 damages only. 
 
 4. If the Plaintiff declares as Assignee, as it is necessary 
 that he should state in his Declaration his whole title, 
 regularly deduced from the Lessor or Grantor, so he must 
 prove his whole title, as stated in his Declaration, by 
 regular Evidence. If any step, or part of his title, is by
 
 CHAP. IV.] on general Breaches. 
 
 Deed ; he must call the subscribing witness to prove the 
 execution ; if the Estate is fee simple, and he states him- 
 self as Heir, he must prove that he is so ; if as Devisee, 
 he must produce the Will, and prove by the witnesses 
 subscribed to it, its regular execution by the Testator ; if 
 the Lessor, or Grantor, had an interest for years only, and 
 one step is as Legatee, Executor, or Administrator, 
 Probate of the Will will then be sufficient. 
 
 If the title is deduced by Marriage, it must be regularly 
 proved, as before stated in Actions by Baron and Feme. 
 
 If the title is by a private Act of Parliament, there must 
 be an examined copy produced from the Parliament Roll, 
 and proved by a witness who examined it. 
 
 What will be Evidence in defence, by the Defendant, 
 will be found post, under the head of, " The Evidence on 
 the breach of the Covenant not to assign, &c." 
 
 5. If the Action is against the Assignees of a Bank- 
 rupt,(e) the Plaintiff must prove that the Assignees took 
 possession of the Premises demised, and kept the posses- 
 sion, not merely to try to ascertain the value of them, but 
 as taking to the interest with a view to make it an efficient 
 part of the Bankrupt's Estate : this is a matter of some 
 difficulty in Evidence as to what shall amount to a taking 
 to the Premises. The Plaintiff should, therefore, be pre- 
 pared with witnesses to prove when the Assignees took 
 possession, and how long they held them : what acts of 
 Ownership they exercised. It is important, if the fact 
 
 (<r) 1 Esp. N, P. C. 234. 7 East. 335. 3 Campb. 340.
 
 
 
 ^ 
 142 Of the Evidence in Covenant [CHAP. IV. 
 
 took place, for the Plaintiff to show, that he applied to the 
 Defendants the Assignees, for the possession, and that they 
 either refused it, or gave him an equivocal ansvver.(y) 
 
 I shall now consider the Evidence in cases where the 
 breach of particular Covenants is assigned. 
 
 1. Of the Evidence where the breach is on the Covenant 
 for Quiet Enjoyment. 
 
 If the Plaintiff declares for a breach of the Covenant for 
 Quiet Enjoyment, in a Lease from the Defendant to him:(g-) 
 it will not be sufficient for him to prove merely that he has 
 been disturbed, or evicted, for that might be wrongfully 
 by a stranger who would be subject to an Action for it ; 
 he must go further, and prove that it was by some Person 
 claiming by elder title. For this purpose, the Plaintiff 
 must go into Evidence of the manner he was disturbed in 
 the possession, and show under what colour it was done ; 
 as, e. g. if he was evicted by Ejectment, he should show 
 the Ejectment served, and the Judgment obtained on it, 
 by producing an examined copy, and calling the Person 
 who so recovered. 
 
 But in settling the Evidence, in this respect, the Cove- 
 nant should be accurately looked to, as the usual form of 
 it(h] now by the Lessor, is " for Quiet Enjoyment against 
 himself, and all those claiming by, through, or under him ;" 
 in which case, though the Lessee was so disturbed or evict- 
 ed, the Lessor might not be liable; unless the Plaintiff could 
 
 (/) 7 East. 339. 
 
 (#) 1 Esp. Dig. N. P. 297. Inst. 35. F. N. B. 242. 
 
 (A) 2 Bos. & Pull. 13. 15 East. 530.
 
 CHAP. IV.] for Quiet Enjoyment. 143 
 
 prove, that the Person who disturbed him did claim by, 
 through, or under his Lessor, the Defendant : this may 
 be done by production of the proceedings, or by calling, 
 as well in the last Case as in this, the Party who has made 
 the Eviction to state the ground of his Proceeding. 
 
 Where a Lessee is so disturbed in his Enjoyment of the 
 Premises demised, as by having an Ejectment served on 
 him ; it is always prudent to acquaint the Lessor of such 
 proceeding, and that in case of Eviction, he will be called 
 upon under the Covenant ; if that has been done, and the 
 Lessor has not defended the possession, and the Plaintiff 
 has, in consequence, been evicted ; by giving Evidence 
 of his having so given notice to his Lessor to defend, 
 it should seem to be sufficient to show the Eviction only, 
 without going into any Evidence of the title of the Person 
 Evicting. 
 
 It has been stated, that the Plaintiff must show the man- 
 ner in which he has been disturbed,(z) for it is necessary 
 that it should be done by some act ; for a verbal disturb- 
 ance, as, e. g. by prohibiting his Tenant to whom he had 
 underlet, not to pay Rent to him is not sufficient. 
 
 2. Of the Evidence- -where the breach is on the Covenant 
 not to alien, assign, or part with the possession. (k) 
 
 In this case, if the Plaintiff proceeds on the latter part 
 of that Covenant, after proving the Execution of the Lease; 
 he has only to prove that some Person, not the Lessee, is 
 in possession of the demised Premises.(/) If he proceeds 
 
 (0 1 Brownl. 81. () 1 Esp. Dig. N. P. 300. 
 
 CO 4, Taunt. 766.
 
 144 Of the Evidence in Covenant [CHAP. IV. 
 
 on the former, he should call the Person, whom he sup- 
 poses, or knows, to be the Assignee, to prove, that the 
 Defendant assigned the Premises to him. He is not 
 called upon to prove any Deed of regular assignment ; as 
 that belongs to the Assignee. But the Defendant, when 
 so charged for having assigned, may show, that the Per- 
 son who is in possession, or presumed to be in posses- 
 sion,^) is not an Assignee, but an under-Lessee only ; 
 to prove which, he must either prove the Lease made to 
 him, by calling the subscribing witness, or by a witness 
 who knows the fact ; the under-Lessee himself is for this 
 purpose a good witness. So he may show, that though 
 the Premises were assigned, it was by his Assignees, in 
 consequence of his becoming a Bankrupt ;() in that case 
 he should produce the proceedings, and an assignment, by 
 a subpoena duces tecum to the Assignee of the Term ; and 
 proving the execution of it proves his case. So he may 
 show, that the Lease was sold by the Sheriff, under an 
 execution against him ; in that case he should give the 
 Writ of^/z. fa. in Evidence, by an examined copy, and 
 then prove, by a witness, the sale by the Sheriff to some 
 other Person, and, by a subpoena duces tecum to that Per- 
 son, have the Bill of Sale from the Sheriff, and prove the 
 execution of it by the Subscribing Witness. 
 
 So if the Lessor has accepted an Asssignee as his Te- 
 nant, and he sues him, the Defendant may plead, that be- 
 fore the Covenant broken lie had assigned to another : 
 proving this, as in the cases just stated, discharges the 
 Defendant, (o) 
 
 (m) 1 Stra. 405. Dougl. 174. 
 
 (n) 3 Mau. & Selw. 353. (o) Dougl. 1 Ed. 438.
 
 CHAP. IV.] to Repair, and deliver up in Repair. 145 
 
 This Covenant is often, " Not to assign without the 
 Lessor's leave in writing first had and obtained." In set- 
 tling the Evidence, in that case, it must be observed, that 
 a parol license is not good : there must be a license in 
 writing ; and it must be proved, at the trial, by a witness, 
 to be the Lessor's hand-writing. 
 
 3. Of the Evidence where the breach is on the Covenant to 
 Repair, and Deliver up in Repair. (p) 
 
 This is a question of fact, and to be tried by the testi- 
 mony of witnesses, as to the state of the repairs. It is, 
 however, laid down in a book of high authority,(<?) that 
 " ordinary, and natural decay is not a breach of this Co- 
 venant. " It may, therefore, be advisable, in Settling the 
 Evidence on this head, for the Defendant to prove, that 
 though the premises are in a bad state, it has proceeded 
 from natural decay. This is matter of opinion of Persons 
 of skill, who should be called ; but the Defendant must 
 also show, that he kept the Premises otherwise in proper 
 Repair, so that the decay was not caused by his neglect. 
 
 It is a usual Covenant for the Tenant to Repair, the 
 Lessor finding rough timber. If the Tenant is sued on 
 this Covenant, he may show, that he required of his Les- 
 sor to assign him, or give him, rough timber, which he 
 refused, or neglected, to do ; this may be proved by a 
 Witness, who made the demand. If this is proved, it is 
 sufficient Evidence for the Defendant, the finding the tim- 
 ber being a condition precedent. 
 
 V 
 
 (ft) 1 Esp. Dig. N. P. 301. 
 
 (?) Fitzh. Abr. Title Covenant, fol. 4.
 
 
 
 146 Of the Evidence in Covenant [CHAP. IV. 
 
 4. Of the Evidence on the Breach of Covenant not to 
 Plough Meadow ; and to use the Land in a Husbandlike 
 way. 
 
 In this case the Plaintiff must prove that the Land (of 
 the breaking up of which he complains) was really Mea- 
 dow at the time of the demise ;(/) this is done by a 
 Witness, who knew it ; and he must then prove the fact 
 of the Ploughing, and give Evidence of the amount of the 
 damages. 
 
 As to the Evidence of using the Land in a husband - 
 like way, vide ante, Chap, of Assumpsit, page 80. 
 
 Of the Evidence for the Defendants. 
 
 Under some of the preceding heads I have stated the 
 Evidence for the Defendants. Such as what are the 
 matters of defence on which a Defendant may rely, and 
 under the other heads of particular Covenants. It may 
 now be necessary to apply to the Evidence generally ap- 
 plying as matters of defence. It should, however, 
 previously be observed, that where a Party has entered 
 into an express Covenant, no circumstances, even of 
 future impossibility from natural causes, can discharge 
 him. Such as if a ship is chartered to sail by a certain 
 day ; though from adverse winds it is impossible, it does 
 not discharge the Covenant contained in the charter-party. 
 He is, therefore, always in such case only discharged by 
 the Plea and Evidence of performance ; as in the case 
 
 (*) 1 Stra. 610.
 
 CHAP. IV.] to Repair ', and not to plough Meadow. 147 
 
 just mentioned, the Defendant would be forced to call a 
 witness to prove the actual time of the ship's sailing, and 
 that it was on the day mentioned in the charter-party. 
 
 2. The Defendant may plead, and show, in his defence, 
 other Covenants in bar of those on which he is sued. (s) 
 These Covenants may be either in the Deed, on which the 
 Action is brought, or in another. If they are in the same 
 Deed, when the Plaintiff has proved the Deed, by the 
 Subscribing Witness, by reference to the Covenant, the 
 Plea may be supported ; as if the Action was Covenant 
 for non-payment of Rent, and in the same Deed there was 
 a Covenant that the Lessee might retain out of it, what 
 was expended in repairs. The Defendant by showing 
 that Covenant, and proving that he had expended in 
 repairs to the amount of the Rent, by Witnesses, would 
 be entitled to a verdict(j) 
 
 But if the Plea is, of Covenants in another Indenture in 
 bar, that Indenture must be produced and proved by the 
 Subscribing Witness. But this last Deed must appear 
 to be intended to operate as a defeasance to the first, and 
 to refer to it so in terms, or it will be no bar. 
 
 3. Non est factum is another Plea : (the Evidence as 
 to which has been already treated of, ante, 151.) of which 
 in an action of Covenant the Defendant may avail him- 
 self. 
 
 4. Entry and Eviction is also a good Plea in this Action, 
 and has also been treated of before. But in the case of 
 
 () 1 Esp. Dig. N. P. 327, (r) 1 Lev. 152.
 
 148 Of the Evidence in Covenant [CHAP. IV. 
 
 Covenant, the Defendant is bound to prove by Witnesses 
 that the Entry and Eviction was such as to prevent his 
 performing the Covenant : for if it could be performed, 
 the Plea will not be supported.(w) 
 
 Thus, ex. gr. If the Covenant was to repair the 
 Dwelling-House, and Entry and Eviction pleaded :(x) and 
 the Entry was into the backyard : this would not support 
 the Plea, unless the Defendant also showed that by such 
 Entry he was totally prevented from repairing the House. 
 
 5. A Release, is a good Plea in this Action : but to be 
 available it must be by Deed, and which must appear to 
 have been executed after the breach of Covenant was com- 
 mitted. For this purpose, the Defendant must have Evi- 
 dence to prove the precise time of the Covenant being 
 broken. He must then prove the execution of the Release 
 by the Subscribing Witness, and prove that it was execu- 
 ted at the time it bears date, which must appear to be after 
 the day of the breach just above-mentioned. 
 
 6. Accord^ and Satisfaction, is a good Plea in this Ac- 
 tion, as to which see the Rules of Evidence, ante, 160. 
 It should, however, in the case of Covenant, be proved by 
 Witnesses to have taken place after a breach of Covenant 
 committed ; the time of which should be ascertained, as 
 mentioned before, and the time of the Accord, and Satis- 
 faction, be proved by a Witness, as well as the Ac- 
 cord, and Satisfaction, itself. 
 
 (w) Cro. EL 374. 
 
 . P. 165.
 
 CHAP. IV.] Of other Covenants in Bar, fcfc. 149 
 
 7. Infancy, is a good Plea in this Action, and decisive if 
 proved : as to the Evidence, vid. ante, 122. 
 
 These are the principal heads of defence in which the 
 Defendant may rely. Non estfactum is generally, pleaded 
 with them : and the Defendant's Evidence is, of course, 
 to be governed by his Pleas. 

 
 
 * f 
 
 150 Of the Evidence in Assault [CHAP. V. 
 
 CHAPTER V. 
 
 OF SETTLING THE EVIDENCE IN ACTIONS OF ASSAULT, 
 AND FALSE IMPRISONMENT. 
 
 A HESE Actions, and that of Trespass vi et armis, pro- 
 perly so called, being those usually brought against Ma- 
 gistrates, and Peace Officers, and those of the Excise, and 
 Customs ; in all of which notice of Action, or some pre- 
 vious demand of the Warrant, or authority, under which 
 the Defendant acted is required, and which, if not attend- 
 ed to, the Plaintiff will be nonsuited ; it must, therefore, 
 be particularly observed in those Actions, 
 
 1. That notice of an Action, intended to be brought 
 against the Defendant, so circumstanced, must be given 
 one month before it is brought by Stat. 24 Geo. II. c. 
 44. 
 
 2. A demand of a perusal, and copy, of the Defendant's 
 Warrant must be made on him, if a Constable ; and he 
 must have refused, or neglected to give it for six days by 
 Stat. 24 Geo. II. c. 44. ^ 
 
 3. Officers of the Excise, and Customs, must have one 
 month's notice of Action by Stat. 23 Geo. III. c. 70., of 
 all which, notices have been given, the Plaintiff must be
 
 CHAP. V.] and False Imprisonment. 151 
 
 prepared with Evidence at the Trial. I shall, therefore, 
 now proceed to consider : 1. The general Evidence for 
 the Plaintiff in those Actions. 
 
 Every Imprisonment contains an Assault; and the 
 Rule as to settling Evidence, is, in that respect the same. 
 In these cases the Plaintiff in both Actions, in proof of his 
 Declaration, is to go into the facts at full length, of the 
 Assault and detention of the Person, proving the manner 
 in which it was done : the violence or publicity of it : the 
 extent of the bodily injury, if an Assault only, and the 
 length of time the Plaintiff was detained, if false Imprison- 
 ment: the place where he was confined, if it was an 
 unusual or improper place, or noisome or unwholesome, 
 is matter also fit to be gone into ; and if special damage 
 is laid, Evidence of that should be fully given. 
 
 If Husband and Wife are Plaintiffs or Defendants, the 
 Marriage must be proved. 
 
 The Evidence for the Plaintiff must, therefore, neces- 
 sarily depend on the various circumstances of the case 
 and be governed by them. These general Rules should, 
 however, be observed : 
 
 1. That the Plaintiff, though his Declaration concludes, 
 " And other wrongs then and there did, &c." cannot go 
 into Evidence of any matter which might have been put 
 on the Record as substantive matters of injury or com- 
 plaint : for in such case they must be stated. (a) 
 
 (a) 1 Esp. Dig. N. P. 354.
 
 
 152 Of the Evidence in Assault. [CHAP. V. 
 
 As where the Declaration for False Imprisonment was 
 in that common form of conclusion, " and other wrongs, 
 &fc." ; and the Plaintiff in one case wanted to go into Evi- 
 dence to prove. " That during his confinement,^) he 
 had been stinted in his allowance of food," it was held that 
 it could not be done ; and, in another case, where he 
 wanted to go into proof of his having, during his confine- 
 ment, caught the Gaol fever,(c) it was ruled by Lord 
 Kenyon that such Evidence was inadmissible. See post, 
 p. 217. 
 
 2. Where the Plaintiff's Replication is the general one 
 of " de injurid sud proprid" he is confined to a disproval 
 of the facts stated in the Plea, and cannot give in Evidence 
 any extrinsic matter not contained in it.(</) 
 
 As where the Defendant, to False Imprisonment gene- 
 rally, justified the Arrest and the detention under a War- 
 rant, it was held that the Plaintiff could not go into 
 Evidence under that general replication, of a Tender and 
 refusal 
 
 As, therefore, the facts to be proved by the Plaintiff, 
 are of such limited extent, the important matters of Evi- 
 dence in this Action occur in the defence. The important 
 head, therefore, here to be considered is : 
 
 The settling the Evidence for the Defendant. 
 The Defendant has three modes of defence by Plea. 
 
 (6) Peake's N. P. C. 46. (c) Id. 62. 
 
 (d) 1 Esp. Dig. N. P. 354. (<r) 2 Black. Rep. 1 1 65.
 
 CHAP. V.j and False Imprisonment. 153 
 
 1. Of the General Issue Not Guilty. 2. Of matter of 
 Excuse, as that the injury was done by accident ; but 
 which, as it may be given in Evidence under the General 
 Issue is, therefore, rarely pleaded. And, 3. Of matter of 
 Justification in point of law. 
 
 In settling the Evidence, which may be given under the 
 Plea of Not Guilty, it must be considered, as produced 
 either as an answer to the Action, or in mitigation of 
 damages, and in that view must be considered distinctly. 
 
 1. Of the Evidence under the Plea of Not Guilty, as an 
 answer to the Action. 
 
 This in that respect is a denial of the facts stated by the 
 Plaintiff as amounting to an Assault, Battery, or Impri- 
 sonment. It is the General Issue in these Actions, and 
 puts the Plaintiff upon proof of his Declaration. In the 
 case, therefore, of common Persons, the Defendants can 
 only call witnesses to disprove the Plaintiff 's case ; and 
 to prove that he is falsely charged with the injury com- 
 plained of, by showing, for example, that the Plaintiff was 
 mistaken in his person, and that the injury was committed 
 by another : this is done by proving who actually com- 
 mitted the Assault on the Plaintiff, or that the Defendant 
 was not present, or took no part in it. 
 
 But in the cases of Justices of the Peace, Constables, 
 Parish Officers, and Officers of the Revenue, by several 
 Statutes they are allowed to give a justification, or any 
 special matter, in Evidence, without pleading it, under 
 the General Issue only ; these cases will be referred to 
 hereafter. 
 
 u
 
 * 
 
 . Of the Evidence in Assault. [CHAP. V. 
 
 2. Under this Plea of the General Issue, as matter of 
 excuse may be given in Evidence, the General Issue only 
 is in most cases pleaded : in fact, I have rarely known 
 matter of excuse pleaded. It must, however, be made 
 out in Evidence. Inevitable Necessity comes under this 
 head, as well as accident ; so is Amicable Contest ; as if 
 two wrestled for a Wager, and one was hurt by accident ; 
 if this is proved, it is good. 
 
 3. The important matter, in settling the Evidence for 
 Defendant, is the Evidence which he is to give under the 
 Plea of Justification. These Pleas are, of course, of great 
 number and variety ; I shall, therefore, apply myself to 
 the principal ones only. 
 
 1. Of the Justification of Son Assault Demesne. 
 
 This is proved by the Defendant at the Trial, by show- 
 ing, that before he assaulted the Plaintiff, the latter had 
 assaulted him ; it is not necessary that this should be by 
 striking him, but by showing that he, the Plaintiff, was in 
 the attitude, or about to strike or wound him, the Defend- 
 ant, which he averted by assaulting the Plaintiff. It will 
 not be sufficient for the Defendant to show a mere menace 
 or threatening posture assumed by the Plaintiff, where the 
 Parties were so far asunder that the Plaintiff could not 
 reach the Defendant ; he must show that he was within 
 reach of the Plaintiff when assaulted: these facts must 
 of course, be proved by some witness who happened to 
 be present when the assault took place, and who can 
 prove them in Evidence. 

 
 CHAP. V.] and False Imprisonment. 155 
 
 2. Plea ofmolliter manus imposwt. 
 
 This is a justification of an actual Assault, but which 
 had been caused by the act of the Plaintiff himself, and 
 which the Defendant was justified in making, either as 
 preventing him from doing some act or resisting for some 
 lawful cause ; and the matters so justified, are of great 
 variety, as 
 
 If the Plaintiff came into Defendant's house without any 
 authority, and refused to depart, Defendant may lawfully 
 use force to expel him ; and if, in such contest, the Plain- 
 tiff is assaulted and hurt, the Defendant can justify it by 
 this Plea ; in which case the Defendant must prove : 
 
 That the House was his ; that the Plaintiff came into 
 it without his licence, and upon no lawful occasion ; or if 
 a Public House, into which he might lawfully come, that 
 when there, he misconducted himself, 'made a noise or 
 riot, or offended the other guests ; that he was requested 
 to depart, which he refused, and that it was necessary to 
 have recourse to force to compel him. 
 
 These two last matters of Evidence must be attended 
 to, and strictly proved ; as to the first, Because no wrong 
 is done, until the Plaintiff refuses to depart on request : 
 and as to the second, the Plea must be referred to : for 
 though an Assault maybe justified by a refusal, if the 
 Defendant justifies the battery, he must show a resistance 
 on the Plaintiff's part, or opposition by force, for if he 
 could be turned out of doors by mere force,(y) there 
 
 (/) 2 Stra. 1049. Vid. 5 Corayn's Dig. 3 M, 16. 8 Term Rep. 
 299.
 
 
 156 Of the Evidence in Assault [CHAP. V. 
 
 was no necessity to beat or bruise him, and they can only 
 be necessary, or warrantable, where he opposes the attempt 
 by force, nor can a wounding, it should seem, under any 
 circumstances be justified under this Plea. 
 
 So if a Plaintiff comes on Defendant's Close for any 
 unauthorised purpose, and is desired to depart, which he 
 refuses, force is justifiable under this Plea to compel him. 
 In both cases, the Evidence is the same, and the better 
 opinion seems to be, that there is no necessity for the 
 Defendant to show his title to the House or Close, nor 
 need he go into any Evidence on the subject, but that he 
 may rely on the possession only ; but there are contradic- 
 tory cases. 
 
 In all cases of Evidence under this Plea, it must be 
 taken as a general Rule, that to warrant the Plea, the 
 act of the Plaintiff was unlawful, and that the force and 
 violence used by the Defendant to the Plaintiff was neces- 
 sary and unavoidable : for under no other circumstances 
 can force and violence be justified ; and the Defendant 
 
 must give clear Evidence of both. 
 
 I 
 
 As, for example, if Plaintiff was diverting the Defend- 
 ant's Water-course : (2 Roll. Ab. 547.) rescuing his 
 Cattle, which Defendant had taken as a distress, or in exe- 
 cution : the Defendant must prove that the Water-course 
 was his ; that he had lawfully distrained the Cattle, or 
 taken the Plaintiff's Goods in execution ; in the one case 
 by showing a Tenancy, or that the Cattle were damage 
 feasant, and, in the latter, by proving an execution issued, 
 and the Cattle seized under it by the Officer, and then 
 that the Plaintiff violently and unwarrantably resisting,
 
 CHAP. V.] and False Imprisonment. 157 
 
 was opposed by the Defendant, and in the course of such 
 opposition received the injury for which the Action was 
 brought. 
 
 These Rules apply to every case of this Plea. 
 
 If the Defendant justifies on the ground of moderately 
 chastising an Apprentice or Servant, he must give Evi- 
 dence that they are so, by showing the Indenture of Ap- 
 prenticeship, and proving the execution of it : by showing 
 the Plaintiff was his Servant and in his employment ; and 
 he must give Evidence of the faults committed by them, 
 such as disobedience of his commands for example, to 
 show that the offence warranted the punishment he in- 
 flicted. 
 
 These Pleas apply more especially to Assault : as to 
 false Imprisonment, they are more numerous, and these 
 are chiefly matters of justification under some lawful au- 
 thority. This may be in cases of Imprisonment where no 
 process has issued, and where it has. 
 
 
 
 I. Of a Justification of Imprisonment without Process. 
 
 Under this head, it may be observed, that, as in most of 
 the cases of false Imprisonment, Justices of the Peace, 
 Constables, and all Peace Officers, as well as Officers of 
 the Customs, and Excise, are Parties, it is not necessary 
 to prove their appointment, but merely that they acted in 
 those characters, (g} 
 
 () Phillips, Evid. 180.
 
 
 158 Of the Evidence in Assault [CHAP. V. 
 
 If any Person makes a Riot, Assault, or breach of the 
 Peace, he may be taken into custody, and given in charge 
 to a Constable, or other Officer, to be brought before a 
 Justice of the Peace ; or the Constable, on his own view 
 of such proceedings, may take him into custody. This 
 being pleaded, the Defendant must call witnesses to prove 
 a Riot, Assault, or Affray, having taken place; that the 
 Plaintiff was concerned in it ; and that it was necessary, 
 to prevent a repetition of the violence, that he should be 
 taken into custody ; that he was then given in charge to 
 the Constable, or Peace Officer, under the charge. If the 
 Constable is a joint Defendant, he is not called upon to 
 prove his appointment : it is sufficient if he acts as a Con- 
 stable. If he was present, and received the charge, as the 
 offence was committed in his view, he would be clearly 
 warranted in taking charge of the Plaintiff : and it seems 
 too that, though not present, he can justify the deten- 
 tion. As, however, the Constable only takes charge of 
 the Plaintiff to be dealt with according to law, the last 
 proof must be, that the Plaintiff was brought by him be- 
 fore a Magistrate, and discharged, or committed. 
 
 If the Action is against a Constable -, Watchman, or Peace 
 Officer, for Imprisoning the Plaintiff, the Defendant must 
 show in Evidence, at the Trial, the circumstances under 
 which he took the Plaintiff into custody, such as being 
 found under suspicious circumstances, with property sup- 
 posed to be stolen, at an unseasonable hour of the night : 
 these are good justifications for an Officer with a War- 
 rant ; and, if proved, will entitle the Defendant to a ver- 
 dict.^) 
 
 (A) 3 Taunt. 14.
 
 CHAP. V.J and False Imprisonment. 
 
 . So a Constable can justify taking a Party into custody, 
 on a charge of felony, without any Warrant, (i) 
 
 In that case, he must show in Evidence, that a charge 
 of Felony was preferred before him, and the Plaintiff was 
 charged with it ; and if the charge was in writing, it should 
 be produced : but he is not called upon to prove a Felony 
 actually committed, for he will be justified, whether a Fe- 
 lony was committed, or not. 
 
 But if a Felony has actually been committed, either an 
 Officer, or Private Person may justify taking a Person into 
 custody, on fair grounds of suspicion, (k] 
 
 Commanding Officers of the Navy, or Army,(/) may 
 also justify the Imprisonment of their Officers, Soldiers, or 
 Crew for misconduct, which must be proved. And note, 
 that it must, in every case of a justification for Imprison- 
 ment, be attended to ; that the Defendant must prove the 
 ground of the detention of the Plaintiff's Person clearly, 
 and distinctly, in every respect, on account of the jealou- 
 sy with which the law looks on the Imprisonment of the 
 Person of the Subject. 
 
 2. Of Justification of Imprisonment under Process : this is 
 of the Court, in civil Actions, or under Warrant of a Ma- 
 gistrate. 
 
 1. Of imprisonment under Process in Civil Actions. 
 If an Officer, or private Person, justifies under Process, 
 
 (i) Dougl. 345. 3 Campb. 420. (*) 1 Esp. Dig. N. P. 353. 
 (/) I Esp. Dig. N. P. 354. 1 Terra Rep. 53r.
 
 160 Of the Evidence in Assault [CHAP. V. 
 
 he must take care that it is not void, or irregular ; that is, 
 that it is a good Writ, and regularly taken out, and return- 
 able.^) 
 
 If an Diction is brought against an Officer, or private 
 Person, for false Imprisonment, as, e. g. where the arrest 
 was for Debt, they must plead a full justification under the 
 Process of the Court.(w) Therefore, if it is by Process 
 from an inferior Court, the Evidence must show, that the 
 Party was subject to its jurisdiction ; and, under such 
 Plea by the Sheriff } or his Officer, (o) the Defendant must 
 produce, and prove, an examined copy of the Writ, or the 
 Writ itself, which, it must appear, was returned ; the in- 
 dorsement on which will show, for what sum the De- 
 fendant was to be arrested, or taken into custody : this 
 is indispensable.(/>) He must then show a Warrant 
 made out to an Officer, and if the Officer is a Defend- 
 ant, to him, which should be produced. The under- She- 
 riff can always prove the receipt of the Writ at the Office, 
 and state to what Officer the Warrant was directed. The 
 Defendant should, lastly, prove the arrest by such Officer ; 
 and if any Person is joined in the Action with the Officer, 
 he has a justification as coming in his aid. 
 
 If the Plaintiff in the original Action, or a Stranger, is 
 either the Defendant alone, or jointly with the Officer, all 
 the Evidence, last' mentioned, must be given, and also an 
 examined copy of the Judgment in the original Action, if 
 the arrest is on final Process, and on which that Writ is 
 founded. 
 
 (m) Vicl. Cas. 1 Esp. Dig. N. P. 356. (n) 1 Esp. Dig. N. P. 356. 
 
 (o) I Stark. 413. 
 
 (/i) Drake v. Sykcs, 7 Term Rep. 1 13.
 
 CHAP. V.] and False Imprisonment. 161 
 
 2. Of the Imprisonment under a Warrant from a,' Magis- 
 
 trate. 
 
 In Actions against Constables, it is, in order to settle 
 the Evidence, necessary to see, when he is sued alone, or 
 joined with the Justice of Peace : if sued alone, where the 
 Justice should be joined with him, the Plaintiff must un- 
 der Stat. 24 Geo. II. be nonsuited. But he may be sued 
 alone, 1. Where he has no Warrant, but is acting by 
 his own authority. 2. Where he was acting under a Jus- 
 tice's Warrant, but a perusal, and copy of it, having been 
 demanded, he has not given a copy within six days, or 
 before Action brought ; but where he has given a copy 
 before Action brought, unless the Justice whose Warrant 
 he had, is joined with him, the Plaintiff must be nonsuit- 
 
 If the arrest has been made under a Warrant from a 
 Justice of the Peace, the Warrant must always be produ- 
 ced in Evidence ; and this by Stat. 24 Geo. II. c. 44. is a 
 justification to the Constable, though the Justice had no 
 jurisdiction : but it must be proved to be the Warrant of 
 a Justice of Peace for the County, and his signature to it 
 must be proved to be his hand-writing : and this is given 
 in Evidence under the Issue of Not Guilty, which is plead- 
 able by that Statute. 
 
 Beside this Evidence, the Plaintiff's being by the same 
 Statute required to give Evidence of a demand of the pe- 
 rusal, and copy, of the Warrant, and refusal of it for six 
 days ; where a copy -has been taken of it by the Plaintiff, 
 
 (?) Esp. Dig. N. P. 358.
 
 162 Of the Evidence in Assault [CHAP. V. 
 
 the Defendant should always, at the'Trial, have the de- 
 mand in writing which was served on him of the perusal, 
 and copy, ready to produce, and be prepared to prove 
 the time of the service of it, and whether six days have 
 elapsed from the time of the demand before Action brought: 
 for which purpose, he should also have the copy of the 
 Writ served upon him to produce, as on proving the ac- 
 tual time of the service of demand, and the Writ, it may 
 nonsuit the Plaintiff: for although he may not have given a 
 perusal, and copy, of the Warrant within six days after 
 demand of it,(r) which would deprive him of the benefit 
 of the Statute, had the Action been immediately brought, 
 yet if the Defendant gives a copy at any time before Ac- 
 tion brought, he brings himself within the protection of 
 the Statute. 
 
 The Constable is not called upon to prove the legality, 
 or the illegality, of the warrant.(j) The Justice of Peace, 
 who issued it, is alone answerable for it : he is, therefore, by 
 the Stat. 24 Geo. II. made a necessary Defendant, and, as 
 the Constable, would be entitled to a Verdict, and his Costs, 
 in consequence of producing the Warrant, if it is illegal, 
 the Justice is made liable to pay the Costs which the Plain- 
 tiff would have to pay to the Constable. 
 
 As the suing out of the Writ is the commencement of 
 the Action, the Plaintiff's Attorney is bound to have the 
 Writ at the Trial to show the time of the actual com- 
 mencement of it, by producing the first Writ, if there 
 has been no Alias, which, in cases of notice to Justices, 
 must be sued out within six months after the offence com- 
 
 (r) 5 East, 445. () 2 Bos. & Pull. 158.
 
 CHAP. V.] m the Action of false Imprisonment. 163 
 
 mitted. But as the Suit is often commenced on an Alias 
 Writ, which issued after six months, the first not being 
 served ; though the suing out of the first Writ would save 
 the Action : the production of the Alias would not. It is, 
 therefore, indispensable for the Plaintiff's Attorney, in this 
 case, to have at the Trial the first Writ, as well as the 
 Alias, and show the first returned.(^) 
 
 Of Settling the Evidence for the Defendant in Actions 
 against Justices of the Peace. 
 
 As to this is should be previously observed, that as the 
 Defendant is entitled to a month's notice of Action, which 
 the Plaintiff is bound to prove at the Trial ; the same cau- 
 tion, as before stated in the case of Constables, is to be at- 
 tended to in this case, as the Defendant may avail himself 
 of the objection to the Action being brought too soon. 
 Objections arising on the face of the notice, as to its illega- 
 lity, are taken at the Trial. 
 
 The Defendant should, therefore, be prepared to prove 
 the actual time when the cause of Action accrued, so that 
 by comparing it with the Writ, it may appear, that the Ac- 
 tion was not brought within six months after it ; as, by 
 Stat. 24 Geo. II. c. 44. if brought after that period, the 
 Plaintiff must be nonsuited, vid. case of Weston v. Four- 
 nier, 14 East, 491.(w) 
 
 As the Plaintiff, however, gives the notice of Action, 
 he is bound not to proceed within one month from that 
 
 (0 7 Term Rep. 7. 6 Term Rep. 617. 14 East, 491, 
 () 1 Esp. Dig. N. P. 358.
 
 164 Of the Evidence in [CHAP. V. 
 
 time ; therefore the service of the notice ascertains when 
 the month commences.(ctr) and the day of the service is in- 
 clusive. 
 
 2. The notice of the Action required by the Statute, be- 
 ing to enable the Justice to tender amends, and afterwards 
 to plead it ; where he does plead it, he must show by Evi- 
 dence, at the Trial, that he made a regular tender of the 
 exact sum pleaded. 
 
 3. As a Justice of Peace may either commit, or seize, 
 the Party's Goods, in consequence of a Conviction, or for 
 something which has passed in his presence ; it may be 
 necessary to consider them separately. 
 
 If the Action is for an illegal commitment by the Jus- 
 tice, in consequence of Proceedings before him on an In- 
 formation, he must accurately prove the regularity of his 
 Proceedings, and the Information laid before him, and the 
 Proceedings on it : as these are taken in writing by himself, 
 they must be necessarily produced and verified. 
 
 This occurs in the case of Convictions, and requires at- 
 tention.^) 
 
 If the Plaintiff has been convicted under a Statute be- 
 fore the Defendant, as a Justice of the Peace, and the pun- 
 ishment is Imprisonment, the production of that Conviction 
 is sufficient Evidence for the Magistrate, provided it is 
 good on the face of it. 
 
 i 
 
 (cc) Castle -v. Burdett, 3 Terra Rep. 623. 
 (t/) Vid. Gray v. Cookson, 16 East. 13.
 
 CHAP. V.] the Action of False Imprisonment. 165 
 
 So if the Action is for imprisoning the Plaintiff, by rea- 
 son of not paying the penalty : the Magistrate is only re- 
 quired to produce his own Conviction, and prove the 
 Proceedings before him, and his hand- writing to the Con- 
 viction. The Plaintiff may, however, in both cases, show, 
 that on the face of it, it is bad in point of law ; in that case 
 he will have a verdict. 
 
 Where, however, the Conviction has been quashed, 
 as it then affords no justification, the Justice has then 
 only to rely on the protection of the Stat. 43 Geo. III. c. 
 141, to show, that the Conviction, and Proceedings, were 
 not done maliciously, and without probable . cause ; in 
 which the Action should be not Trespass vi et armis, but 
 Case, which will nonsuit the Plaintiff. 
 
 In that case, the Defendant, the Justice of Peace, must 
 bring forward Evidence of what passed before him when 
 he made the Conviction ; and show by the facts which 
 appeared before him, that he had convicted the Plaintiff 
 on probable grounds, and not from malicious motives. 
 
 But as Justices of Peace may also commit for something 
 which passed in their own presence, if an Action is brought 
 for so doing, the Defendant must be well prepared to jus- 
 tify his own conduct ; such as : 
 
 If he justifies a Committal, on account of the Plaintiff's 
 having been guilty of a Contempt to him when in the ex- 
 ecution of his Office, (r) he must be prepared to show what 
 the Contempt was, by calling witnesses who were present, 
 and heard what passed. 
 
 (z) 1 Esp. Dig. N. P. 354,
 
 Of the Evidence in Action, &c. [CHAP. V. 
 
 So he must not commit verbally, but by a Warrant, spe- 
 cifying the offence.(c) 
 
 So he may commit a Person for refusing to be bound 
 over to the Assizes, or Sessions, as a witness on a pro- 
 secution for Felony, (b) In that case, the Defendant must 
 give the charge in Evidence of the Felony, to show that 
 there was ground for binding the Witness over ; second- 
 ly, that the Witnesss's Evidence appeared to be material ; 
 and, lastly, that he was regularly called upon to enter into 
 a Recognizance to appear at the Assizes or Sessions, and 
 that he refused to become bound. 
 
 So he may commit a Person for not paying the penal- 
 ty on a Conviction, to levy which a Warrant had been 
 issued, and under which no levy had been made : if the 
 Act, under which the Conviction takes place, require a 
 previous return to it, " that no goods were found on which 
 a levy could be made," and that after such return and 
 non-payment the Defendant should be imprisoned; in 
 that case, the Justice should give in Evidence the Con- 
 viction, the Warrant and the return as before stated, and 
 then a demand on the Defendant to pay, his failure, and 
 then the copy of the Warrant of committal. 
 
 But in the case of a Committal under a' Conviction 
 under Statute 13 Geo. III. c. 80. (c] for killing Game on a 
 Sunday, the Justice may verbally commit, if the penalty 
 is not then paid, and he has issued his Warrant to levy it, 
 and to be kept in custody till the Warrant is returned. 
 
 (a) Mayhew i>. Locke, 2 Marsh. 377. 
 
 (6) 3 Mau. &Selw. 1. (c) 7 East. 533;
 
 Of the Evidence in Action for Adultery. 167 
 
 CHAPTER VI. 
 
 OF THE EVIDENCE IN THE ACTION FOR ADULTERY. 
 
 JL HE first step in Evidence, at the Trial of this Action, 
 always is, to prove the Marriage of the Plaintiff with his 
 Wife, whom he charges to have had criminal conversation 
 with the Defendant. 
 
 In support of that fact, Evidence of reputation, coha- 
 bitation, the admission, or representation by the Parties 
 themselves, is insufficient. There must be Evidence of 
 the actual solemnization of the Marriage. 
 
 The usual Evidence of such Marriage, is the produc- 
 tion of a copy of the Register of the Marriage Certificate 
 from the books of the Church where the ceremony was 
 performed, which must be examined with the original. 
 But this may be rendered unnecessary, by producing a 
 witness who was present at the Marriage, and can prove 
 its having taken place : that is the best Evidence of the 
 fact ; but as that is not always to be had, it will be suffi- 
 cient to call Persons who knew the Wife before Marriage, 
 and of course her maiden name, as described in the Cer- 
 tificate ; that she afterwards appeared as the Wife of the
 
 168 Of the Evidence in [CHAP. VI. 
 
 Plaintiff, and by his name : the bare Register, without 
 connecting the Parties with it, is not of itself sufficient ; 
 for that the proof of their hands-writing in the book may 
 be had. (a) 
 
 If the Marriage has taken place abroad, it must be 
 proved that the ceremony was pursuant to the laws of the 
 country, and the Marriage valid according to those laws : 
 that is a question of law, or received public opinion, which 
 must be proved as a distinct fact.(^) 
 
 So any Marriage among Sectaries, as Quakers, and the 
 like, if good according to that particular r ligion, is a 
 sufficiently good Marriage : but it must be proved that it 
 was so received, as well as that the Marriage was solemn- 
 ized according to the ceremonies of that religion. 
 
 But a copy of a Register, from a foreign Chapel, of a 
 Marriage solemnized there, is not Evidence. (c) Nor are 
 Fleet Marriages. 
 
 The fact of the adulterous intercourse between the De- 
 fendant and the Plaintiff's Wife must then be proved :(d) 
 this of course, varies with circumstances ; and is usually 
 proved by witnesses who have seen the Parties in a situa- 
 tion which precludes any doubt of the fact. 
 
 The last Evidence, in this case, goes to the damages, 
 and these depend upon many circumstances ; as on the 
 
 0) See Phillips, (d) Vid. Leader v. Barry, 1 Esp. N. P. C. 353. 
 (c) Leader v. Barry, 1 Esp. N. P. C. 353. 
 (rf) Reade v. Passer, 1 Esp. N. P. C. 213.
 
 CHAP. VI.] the Action for Adultery. 169 
 
 situation in life of the Plaintiff"; of the degree of happiness 
 and comfort which he enjoyed with his Wife, and the 
 degree of affection which they had previously entertained 
 for each other ; on the means by which the Defendant 
 effected the Seduction, as if by being admitted into the 
 Plaintiff 's house as his friend or Intimate, and the abuse 
 made of such confidence and situation ; so that he was 
 the Plaintiff 's relative, and in that character received into 
 the family without suspicion ; and the Plaintiff 's Wife 
 had till then been considered as a woman of chaste morals 
 and character, and that she had children and a family by 
 her Husband. All these matters go in aggravation of the 
 damages. 
 
 These facts are generally proved by \)iva voce Evidence 
 of Persons who were acquainted with, or lived in intimacy 
 with the Plaintiff, and were acquainted with his mode of 
 living and circumstances : but there is written Evidence 
 also admissible. 
 
 Of this description are letters which have passed in 
 correspondence between the Husband and Wife, where, 
 from necessity, they were living in different places, as 
 showing their affection for each other.(e) This is, how- 
 ever, to be taken with caution, as capable of being adopt- 
 ed by collusion between the Husband and Wife to 
 enhance the damages. The particular situation, therefore, 
 at the time the letter passed should be clearly proved ; 
 such as that their separation was unavoidable in fact ; to 
 place the correspondence beyond suspicion. 
 
 (<?) Edwards i> Crock, 4 Esp. N. P. C. 3y.
 
 170 Of the Evidence in [CHAP. VI. 
 
 So letters written by the Defendant to the Plaintiff's 
 Wife are Evidence against him.(/) 
 
 Of settling the Evidence for Defendant. 
 
 This is either as an answer to the Action on the Plea 
 of Non Guilty, or in mitigation of damages. 
 
 As a defence, the Defendant may give in Evidence, 
 that the Husband suffered his Wife to live openly as a 
 common Prostitute, (g-) 
 
 But his conniving at her Prostitution, with a particular 
 Person, it is said, will only go in mitigation of damages : 
 but Lord Kenyan 'thought it went to the ground of the 
 Action.(^) 
 
 That learned judge was of the same opinion, that when 
 Husband, and Wife, lived in a state of separation, the Ac- 
 tion would not lie.(z) 
 
 He was, likewise, of opinion,(&) that if the Husband ne- 
 glected his Wife, and lived openly in adultery with another 
 woman, that he could maintain no Action for another com- 
 mitting adultery with his Wife. But Lord Afaanley held 
 otherwise. (/) 
 
 In mitigation of damages, the usual ground taken by 
 
 (/) Bull. N. P. 28. ($) Bull. N. P. 27. 
 
 (A) Bull.' N. P. 27. (i) Weedon u. Timbrel, 5 Term Rep. 357. 
 
 (*) Wyndham -v. Ld. Wycombe, 4 Esp. N. P. C. 16. 
 
 (0 Bromley T. Wallace, 4 Esp. N. P. C. 237.
 
 CHAP. VI.] the Action for Adultery. 171 
 
 the Defendant, is the misconduct of the Husband him- 
 self. 
 
 His conniving at conduct in his Wife unbecoming a 
 married woman ; suffering her to accompany the Defend- 
 ant to improper places ; to be in company with him at an 
 unseasonable time ;* being himself .brutal in habits, and 
 cruel to, or negligent of, his Wife, or having turned her 
 out of doors ; being instrumental to his own dishonour, as 
 where he showed her naked in a Bath to the Defendant ; 
 that she was a woman of loose character, and had been 
 criminal with others. 
 
 These are facts which are only capable of proof by wit- 
 nesses ; and these matters will suggest to what 'inquiry, in 
 preparing Evidence on this subject, attention ought to be 
 directed. Exculpatory Evidence is safe : but where it is 
 attempted to fix misconduct, guilt, criminality, or neglect 
 of the Wife, on the Husband, it must be clearly made out, 
 or it will be dangerous.
 
 172 . Of Evidence in [CHAP. VII. 
 
 CHAPTER VII. 
 
 OF SETTLING THE EVIDENCE IN THE ACTION OF REPLE- 
 VIN. 
 
 A HIS being an Action of Trespass, for taking the Plain- 
 tiff's goods, and chattels, the General Issue, non cepit, de- 
 nies the taking ; and if the Defendant does so plead, he, 
 the Plaintiff, Is, of course, bound to prove the fact of his 
 having done so. 
 
 This Evidence, however, seldom occurs, the Defendant 
 by his Plea, Avowry, or Cognizance, admitting, and justify- 
 ing, the taking : as by the Plea of Justification, that the 
 goods taken were not the Plaintiff's, but Defendant's own, 
 or the goods of a Stranger, by whose order he took them. 
 This being a question of fact, the property must be pro- 
 ved to belong to whomsoever it is stated to be in the 
 Plea. 
 
 The Avowry, or Cognizance, admits the taking of the 
 goods in question ; the first, on the Party's own right, the 
 other as Bailiff, or Servant, and is for several causes, 
 upon which the difference of Evidence must be observed, 
 as
 
 CHAP. VII.] the Action of Replevin. 173 
 
 1 . For Rent Arrear. 
 
 This is the most important head in Replevin : and these 
 Rules must be observed. 1. If the Avowry is for Rent 
 arrear, the Defendant must first prove, that the Plaintiff 
 was his Tenant, or Tenant to him named in the Cogni- 
 zance, and held the Lands, or Premises, for the arrear of 
 which the Distress is made, at the Rent stated in the 
 Avowry : if there is a Lease, Evidence of these facts is 
 completely made out, by producing the Lease, and pro- 
 ving the Execution of it by the Plaintiff, by the subscri- 
 bing witness : if, however, the holding is by parol, the 
 Defendant must prove the Tenancy, by showing payment 
 of Rent, or an actual letting at the Rent stated in the Avow- 
 ry, or Cognizance; which may be done either by an agree- 
 ment in writing, though not under a Seal, or by a witness 
 who knows the facts. 
 
 If the Plaintiff holds as Tenant, under a Lease, it is ab- 
 solutely necessary, that it should be consulted carefully in 
 preparing the Evidence, as any variance between the Rent 
 stated to be in arrear, or the holding will be fatal : if, there- 
 fore, on investigating the Covenants in the Lease, they are 
 found to vary from the Avowry, or Cognizance, it should 
 be amended, (a) Thus, e. g. if the Avowry stated the Rent 
 to be paid quarterly, and it was half-yearly, it would be 
 fatal. The same caution is to be used where the holding 
 is not by Lease ; peculiar caution is, therefore, necessary 
 in settling the Evidence in this respect. 
 
 2. It often happens, that the reservation of the Rent 
 (a) 4 Taunt. 320.
 
 174 Of the Evidence in [CHAP. VII. 
 
 requires a demand to be made of the Rent before there 
 can be a Distress made ; where that is the case, the De- 
 fendant must be prepared to prove that demand by a 
 witness. 
 
 Wherever there is a penalty for non-payment of Rent, 
 as for ploughing of old meadow, ex. gr. where the Rent 
 is increased, the Defendant must prove a demand.(6) 
 
 3. The Defendant is not required to prove, 'that the 
 exact Rent claimed by his Avowry or Cognizance to be 
 due to him, is in fact in arrear ; for if he proves only part 
 of it, it is sufficient. As he may avow for half a year's 
 Rent as unpaid, and though he proves but a quarter due, 
 he shall recover pro tanto. 
 
 4. Wherever the Plaintiff has paid Rent to the Defend- 
 ant,^) the latter, in Replevin, is never called upon to 
 prove his title ; for in this Action, receipt of Rent is title 
 to the Premises for the Rent of which he has distrained.^) 
 But as a Person may become entitled to a reversion with 
 a right of Distress, and be obliged to distrain for it before 
 he has received any Rent, in that case he must regularly 
 deduce his title, and prove the whole of it by regular Evi- 
 dence. 
 
 5. These are matters of fact, and proveable by vivd 
 voce Evidence. But where the Defendant has made 
 Cognizance as Bailiif to any one, that Person, as Bailiff to 
 whom, Defendant made Cognizance, cannot be a witness ; 
 
 (A) Hob. 133. (c) Per Lord Kenyan, 1 Esp. N. P. C. 91. 
 
 (rf) 2 Wils. 208.
 
 CHAP. VII.] the Action of Replevin. 175 
 
 for Defendant is but a Servant, and the Rent to be recov- 
 ered by the Distress is on his account ; he, therefore, is 
 interested^ and cannot be called. 
 
 Of the Plaintiff's Evidence in bar of the Avowry. 
 
 1. If the Plaintiff has never paid Rent to the Defend- 
 ant, he may deny the holding " non tenuit modo et forma, 
 &c." and put the Defendant on proof of his title. In that 
 the Issue lies on the Defendant, and he must prove it by 
 witnesses, or otherwise. 
 
 2. He may also deny that any Rent was in arrear, by 
 proving payment, either by a receipt or otherwise, of all 
 Rent due up to the last day of payment preceding the 
 Distress made. This is under the Plea of riens in arrere, 
 which if pleaded alone, admits the holding. 
 
 3. He may plead and prove a tender of the Rent due, 
 which must have been before the Distress was made. 
 This is proved as ante, page 111. 
 
 Of the Evidence under the Avowry for Damage feasant.(e) 
 
 1. Where Cattle are found trespassing on the Defend- 
 ant's own land, or 2. On a Common to which he has 
 a right. In this case, the question generally turns upon 
 the fences being out of repair, and on whom the liability 
 to repair lies ; for if a man's Cattle strays into his neigh- 
 bour's ground, and he is liable to repair the fences, he 
 
 (e) 8 Rep. 147
 
 176 Of the Evidence in . [CHAP. VII. 
 
 cannot lawfully impound the Cattle ; and if he does, the 
 owner may replevy them. As to liability to repair the 
 
 fences, he who has the back of the ditch is bound to re- 
 
 
 
 pair. 
 
 On the first point, the Defendant is required to prove, 
 that he was in possession of the land where the Distress 
 was made, and that the Cattle were there depasturing 
 when taken, for if they escape out of Defendant's ground, 
 he cannot follow them ; that they belonged to the Plain- 
 tiff; and, lastly, the extent of the injury done to h\m.(f) 
 
 Questions on Common right require more proof. 
 
 The Evidence required there is, in the first place, that 
 the Defendant was himself entitled to Common ; that is 
 proved by showing that the place where the Cattle were 
 found is the waste of the Manor , that the Defendant is 
 in possession of land, part of the Manor.: and that the 
 Owners or Occupiers of his land have been always used 
 to turn in on it. 
 
 This is the case, where the Cattle taken are those of 
 a Stranger. But a Commoner may also take the Cattle 
 of another Commoner, which is the case only, where such 
 latter Commoner has Common for a limited number only : 
 in that case, the Defendant must show the immemorial 
 usage of the Common ; that such Commoner was only 
 so entitled to a given number and that more of his Cattle 
 being found turned in than he was entitled to that the 
 overplus only were distrained. 
 
 (/) 3 Esp. N. P. C, 95.
 
 CHAP. VII.] the Action of Replevin. 177 
 
 The right of Common being claimed by prescription, 
 which is always stated in the Avowry, Evidence of that 
 is essential to the Plaintiff J s case. That prescriptive right 
 is shown, by calling old witnesses, who remember the 
 Common being used by the Defendant, or former Posses- 
 sors of the Defendant's Estate, by turning in their Cattle, 
 as far back as they can remember. Uninterrupted usage 
 establishes this right, which is proved as is just stated. 
 There may be also matters of Evidence to this effect 
 found in the books of the Steward of the Manor. 
 
 It must be particularly attended to and observed in set- 
 tling the Evidence in this case, that it precisely tallies with 
 the prescriptive right as laid in the Pleadings ; for any 
 variation in a material part will be fatal. 
 
 As if the prescription stated by Defendant, was for all 
 Commonable Cattle, and it was proved to be for Sheep 
 and Horses only, the Defendant would fail.(^) 
 
 Of the Evidence when the Distress is for Tolh. 
 
 1. If the Toll is claimed for passing a public Highway, 
 that is Toll through ; in that case,(^) the Defendant must 
 give Evidence of the payment of it from time immemo- 
 rial, by the testimony of ancient Persons who remember 
 it, and can speak to its having always been paid by Per- 
 sons using the Highway ; but that alone is not suffi- 
 cient, (i) He must show, that he has done some public 
 
 (#) Bull. N. P. 59. 
 
 (Vi) 1 Esp. Dig. N. P. 382. 2 Wils. 299. Fitzh. 26. pi. 2. 
 (i) 2 Wils. 296. 
 
 z
 
 178 Of the Evidence in [CHAP. VIL 
 
 duty or servic, such as repairing part of it ; that is, there 
 must be some consideration shown for claiming what 
 would otherwise be an exaction on the Subject. And the 
 Plaintiff must prove his prescription precisely in the terms 
 it is laid. 
 
 If Toll traverse is claimed, the Defendant should show- 
 that the Soil, over which the way went, was his, and im- 
 memorial usage of the payment of the Toll, and that the 
 Plaintiff was going over the way when the Toll was de- 
 manded. 
 
 2. If the Toll is claimed as due for Fairs or Markets, 
 it may be claimed either by Grant from the Crown, or by 
 Prescription, which supposes a previous Grant. 
 
 If it is claimed by Grant : the Grant from the Crown, 
 must be produced and proved under the Great Seal ;(&) 
 and that is sufficient to show the right of Defendant ; and 
 then the Defendant must prove that the Plaintiff was using 
 the Fair or Market when it was claimed, that is, that 
 he was exposing to sale some commodity usually sold 
 there. 
 
 Toll of this description claimed by prescription, must 
 be proved to have been paid from time immemorial, as 
 before-mentioned, by ancient Persons. 
 
 If the Toll is claimed as due for landing Goods at 
 
 (#)Cowp. 661. 
 
 (0 1 Esp. Dig. N. P. 384.
 
 CHAP. VII.] the Action of Replevin. 179 
 
 Ports or Quays, the Evidence is precisely similar to that 
 in the case just mentioned of Tolls on Highways.(/) 
 
 If the Avowry is for a Heriot, the Defendant must 
 show the custom of the Manor : this is done by the 
 Court Rolls, or Entries in the Steward's books, and show- 
 ing the usage of paying it. 
 
 (0 I Esp. Dig. N. P. 384.
 
 180 Of the Evidence in [CHAP. VIII- 
 
 CHAPTER VIII. 
 
 OF SETTLING THE EVIDENCE IN THE ACTION OF 
 TRESPASS. 
 
 1. LrF the Evidence for the Plaintiff. 
 
 The Action of Trespass, properly so called, lies either 
 for an entry on the Lands or Premises of another, and for 
 some injury done there, or for taking his Goods. These 
 points of preliminary Evidence are in all cases to be ob- 
 served, (a) 
 
 1. That in Trespass for either, the Plaintiff must give 
 Evidence of his being in possession. As if it is for break- 
 ing and entering his Close, that he was in possession of it 
 when the Trespass was committed : if for taking his 
 Goods, the same Evidence of being possessed of them 
 should be given. These are matters of fact, and must be 
 proved by a witness. (6) 
 
 2. That in Trespass for an injury done to the Land, 
 the Plaintiff is not called upon to prove any title to it 
 against a wrongdoer, but may rely on his possession only : 
 
 (a) 1 Esp. Dig. N. P. 397, () 4 Term Rep. 489.
 
 CHAP. VIII.] the Action of Trespass. 181 
 
 but if it is Trespass for taking his Goods, the Plaintiff 
 must prove a property in them.(<?) 
 
 But this property need not be the actual property in the 
 Goods ; a special property is sufficient. As the Sheriff 
 may maintain Trespass for taking away Goods which he 
 had taken in execution : so may a Carrier for Goods 
 delivered to. him to be carried. (d] 
 
 3. Where the Plaintiff sets out the Abuttals of the 
 Close, in which he complains of the Trespass being com- 
 mitted,^) he must prove them accurately as laid ; that is, 
 he must prove, that what he describes as the abuttal 
 to the East is to the East ; for should it turn out to be to 
 the North, or any other point, he would be non-suited. 
 And in a late case,(/) where Plaintiff described the land 
 as abutting to the East on land of A. B. ; in fact, A. B. 
 was not the Owner of that piece of land, but another Per- 
 son : the Plaintiff was non-suited. This is matter of 
 parol proof, by witnesses who know the Close in question, 
 and the bounds of it. 
 
 4. If the Trespass is for breaking and entering his 
 Close, the Plaintiff must prove the Parish laid in the 
 Declaration to be that in which the lands lie ; where this 
 question is raised, it is generally proved by witnesses who 
 have either perambulated tEe Parish, or by Persons who 
 have served Parish Offices, or collected the Taxes, and so 
 are acquainted with its boundaries. 
 
 5. If the Declaration states the Trespasses as commit- 
 
 (c) 1 East. 244. (c/) Cfo. Eliz. 639. (^Bull. N. P. 86. 
 
 (/) Ironmonger v, -Surry Lent Assizes 1818.
 
 Of the Evidence in [CHAP. VIII. 
 
 ted " at different days and time between the day of, &c. 
 and the time of commencing the Suit :" if the Plaintiff 
 goes for damages for the time laid, he must show for how 
 many days or months the Defendant continued the Tres- 
 pass. 
 
 6. In the case of a New Assignment, if it is of a differ- 
 ent place from that laid in 1 the Declaration, the Plaintiff 
 must confine his Evidence to the place laid in the New 
 Assignment.^) In settling Evidence, therefore, on an 
 Issue so joined, it will be unnecessary to bring any Evi- 
 dence as to the first laid place. 
 
 7. In Trespass for taking Goods, (h) the Plaintiff's 
 Evidence is confined to these Goods only mentioned in 
 the Declaration. If he, therefore, ex. gr. complained of 
 the taking of his Oxen and Sheep, he could not give Evi- 
 dence of taking his Horses. 
 
 8. If the Action of Trespass is joint against several 
 Defendants, the Plaintiff cannot have a joint verdict against 
 all, unless he proves the Trespass done when all of them 
 were present at the same time. He should, therefore, 
 endeavour to get Evidence of such joint act ; for though 
 he may have a verdict against one only, if there is a 
 verdict for any of the joint Defendants, he must pay his 
 Costs. 
 
 9. The conclusion of the Declaration in Trespass being, 
 
 (g-) Foster v. Crouch, Cro. Eliz. 492. 
 
 (A) Bull. N. P. 24. 
 
 (0 1 Esp. Dig. N. P. 427.
 
 CHAP. VIII.] the Action of Trespass. 183 
 
 " And other wrongs to the said Plaintiff then and there 
 did,"(z) it might seem that these general words would ad- 
 mit of the Plaintiff's giving Evidence of any wrong con- 
 nected with the Trespass : but it is not so ; it is confined 
 to cases only of aggravation, matters which would not of 
 themselves bear an Action, or which could not with 
 decency be put on the Record. See ante. p. 152. 
 
 As in Trespassj for breaking and entering the Plaintiff 's 
 house, and taking his Goods, it has been already observ- 
 ed, that he cannot give Evidence of taking any Goods not 
 specifically laid in the Declaration, but he can give in 
 Evidence, that the Defendant while there, behaved with 
 great indelicacy or rudeness to the Plaintiff 's family. This 
 may direct the settling of the Evidence in these points, 
 and prevent the loading of the case with what is unneces- 
 sary or inadmissible. 
 
 I shall now consider the Evidence applicable to the 
 different heads of this Action, and how the Evidence 
 applying to each is to be settled. 
 
 The Pleas are only, Not Guilty, and a Justification. 
 
 1. Of settling the Evidence in Actions of Trespass arising 
 from cases of Tenancy. 
 
 1. The most usual Actions of this description are cases 
 for an irregular Distress. 
 
 Under this head, as the Plaintiff need only prove the 
 (0 i Esp. Dig. N. P. 427.
 
 184 Of the Evidence in [CHAP. VIII. 
 
 taking of the Goods stated in the Declaration, by calling a 
 witness to prove the fact and the value of the things 
 taken : the Evidence lies on the Defendant to prove a 
 Justification. 
 
 Where the Tenant brings his Action for such Cause, 
 there is no justification ever put on the Record, the 
 Statute 11. Geo. II. c. 19. s. 21. (A 1 ) allowing the Defend- 
 ant to plead the General Issue, not Guilty, and to give in 
 Evidence the special matter of Justification ; that is, the 
 taking of the Goods as a Distress for Rent. That is done, 
 by showing generally that the Plaintiff was Defendant's 
 Tenant at a certain Rent, and that it being unpaid, he, or 
 a Person authorised by him, entered and seized the Goods ; 
 that he gave the notice of Distress required by the Sta- 
 tute ; had the goods regularly appraised and sold, as the 
 case may be, pursuing the directions of the Statute more 
 particularly stated below. 
 
 2. The Plaintiff's case usually turns upon some irre- 
 gularity in the Distress, which, if he succeeds in estab- 
 lishing, he is entitled to a verdict. He usually gives a 
 general Evidence only, that of a taking of his Goods and 
 selling them, leaving the Defendant to justify the regulari- 
 ty of his Proceedings under the Distress ; in that case, he 
 must be prepared, first, to show the Tenancy as above 
 stated. The cause of taking is usually proved by the 
 Broker by whom the Distress was made, if not a Defend- 
 ant : if he is, the Defendant must call some other witness. 
 
 He must produce and show a copy of the notice of 
 Distress, and prove it to have been served on the Plaintiff, 
 
 (*) 1 Esp.N. P. C.257.
 
 CHAT. VIII.] the Action of Trespass. 185 
 
 or left at his house, and signed by the Defendant, whose 
 hand should be proved : this specifies the taking, and cause 
 of taking, and that if the Goods were not replevied within five 
 days they would be sold, concluding with an Inventory of the 
 things taken ; the Plaintiff should have notice to produce 
 the original left with him ; the Defendant should next be 
 prepared to show the regularity of his Proceedings as 
 directed by Statute,(/) viz. that the Goods taken were ap- 
 praised at the five days' end by two sworn Appraisers, 
 sworn before the Sheriff or Constable ; that the Goods 
 were sold for the best price which could be got after such 
 appraisement made ; and if there was an overplus, that 
 it was left with the Sheriff or Constable. 
 
 But the Plaintiff may go into his case at once ; and 
 after producing the notice of Distress, and proving the 
 Defendant's hand to it, he may then show, by a witness, 
 the irregularity of the Proceedings ; as, for example, that 
 they were sold before the end of the five days, or that the 
 Appraisers were not sworn. 
 
 3. Where Goods have been clandestinely removed to 
 avoid a Distress, and the Landlord seizes them within the 
 thirty days, Actions of Trespass are often the consequence. 
 In this case, the Landlord, (who is the Defendant,) is 
 bound to prove, after the Defendant has given Evidence 
 of the taking of the Goods ; that the Plaintiff was his Te- 
 nant ; that the Goods in question which had been on the 
 Premises would, had they remained, have been liable to 
 be distrained ; and they were clandestinely carried off the 
 Premises, of which, proof that the removal took place at 
 
 (0 Stat. 2 W. Sc M. Sess. 1 ch. 5! 
 A a
 
 
 186 Of the Evidence in [CHAP. -VIII. 
 
 night, or very early in the morning, is the best.' The 
 presumption is then raised, on which the Jury are to 
 decide, whether they were fraudulenly taken away to avoid 
 the Distress or not ; and as the Statute gives the Land- 
 lord a right to follow the Goods for thirty days only, he 
 should be prepared with proof of the actual day on which 
 he seized them. The Defendant should be well prepared 
 with proof by witnesses, as to the time and manner of the 
 removal, and that it was suspicious ; as, if bond Jide, or 
 with" Defendant's knowledge, the Action will lie. 
 
 4. If the Tenant brings an Action of Trespass for 
 taking his Goods, which the law considers as exempt 
 from Distress under particular circumstances, such as 
 Wearing Apparel, Beasts of the Plough, or the like ; the 
 Defendant, the Landlord, must be prepared with Evi- 
 dence to show That there was nothing else on which he 
 could make a sufficient Distress, and that will justify the 
 taking : but that is an Action of Trespass on the case. 
 
 2- Ojf Actions of Trespass for injuries to a Fishery. 
 
 Where any Person is entitled to a free or several 
 Fishery, he may maintain this Action for entering it and 
 taking his Fish.(m) The Plaintiff's title in both cases 
 is claimed by Grant from the Crown, or by Prescription, 
 which presupposes a Grant. If the Plaintiff is in posses- 
 sion by Grant, he must produce it ; if not, he must call 
 ancient witnesses to prove, that his Predecessors in the 
 Estate always had and enjoyed the right as claimed. 
 
 (m) I Esp. Dig. N.-P. 401.
 
 CHAP. VIII.] the Action of Trespass. 187 
 
 3. Of settling the Evidence in Actions of Trespass arising 
 from the pur suit of Game. 
 
 Actions of Trespass, arising from the pursuit of, or for 
 the protection of Game, are very frequent.(n) 
 
 If an Action is brought by the Owner, or Tenant, of the 
 soil, against a Person for riding or going over it, or dig- 
 ging and breaking it, the Defendant may justify the doing 
 so. 1. By giving in Evidence that he was in pursuit of 
 ravenous beasts, as Foxes, Badgers, &c. :(o) but that will 
 not justify him in breaking the ground; in doing unne- 
 cessary injury to the fences or ground ; or in following 
 animals not of that description. This justification, there- 
 fore, may be so answered by Evidence on the part of the 
 Plaintiff, which should show what Game the Defendant 
 was in pursuit of, and that it was not of beasts of that 
 description ; and show the breaking of the ground, by 
 witnesses who saw the Game pursued, or the digging of 
 the earth ; which must be proved to be the Plaintiff 's 
 soil, and then in his possession. 
 
 But it is no justification to a Party coming on the ground 
 of another, that he is Lord of the Manor, or qualified to 
 kill Game ; that only exempts him from the penalties 
 under the Game laws. 
 
 If an Action is brought for entering- the Plaintiff's 
 
 o *.. 
 
 house to search for snares, or engines for destroying Game, 
 and taking Plaintiff's guns or nets,(/?) the Defendant 
 
 (n) 1 Esp. Dig. N. P. 403. (o) Cro. Jac, 32 1 . 
 
 (/i) I Esp. Dig. N. P. 40 3,
 
 188 Of the Evidence in [CHAP. VIII. 
 
 may justify under the Warrant of a Justice of Peace, 
 granted to him for that purpose, under Statute 22 
 and 23 Car. 2. c. 26. To make that a good Jus- 
 tification, the Defendant must produce in Evidence 
 the Proceedings before the Justice; that is, prove the 
 Information, and the Justice's Hand and Seal to the 
 Warrant ; and if any guns, nets, or snares, were seized ; 
 that they were found in Defendant's possession. 
 
 If a Party sues or justifies as a Gamekeeper to the Lord 
 of a Manor, be must produce and prove his Deputation 
 from the Lord, and prove that he was sporting within his 
 own Manor. 
 
 4. Of settling the Evidence in Trespass against the 
 Sheriff or his Officers. 
 
 Under this head it must be attended to in settling the 
 Evidence : 1. That in all cases of Trespass de bonis 
 asportatis, under an Execution, the Evidence must be 
 brought home to the Sheriff through the medium of the 
 Warrant to the Sheriff's Officer ; nor will it be sufficient 
 to show, even by the Evidence of the under- Sheriff, that 
 the Person who seized the Goods was in fact an Officer, 
 and the Warrant directed to him.(^) 2. That if the 
 Plaintiff in Trespass is the Defendant in the original 
 Action whose Goods were seized, it is sufficient for the 
 Sheriff to show his Warrant : but if the Action is by a 
 Stranger whose Goods have been taken, the Sheriff must 
 show an Office copy of the Judgment in the Cause he 
 levied.(r) 
 
 (9) 7 Term Rep. 113. (r}5 Burr. 2631.
 
 CHAP. VIII.] the Action of Trespass 189 
 
 The Evidence, as to proceeding against the Sheriff, has 
 been already treated of in other Actions, ante : but in this 
 Action of Trespass vi et armis, the questions which usu- 
 ally occur are as to the property of Goods taken in exe- 
 cution: in these Actions the Sheriff is only a nominal De- 
 fendant. It is sufficient here to observe, that the only 
 point to be attended to is, in whom is the actual property 
 In the Goods : apparent property, or acts of Ownership, 
 exercised over Goods by the Defendant, will not entitle 
 the Sheriff to take them in execution, but that proof of 
 property lies on the Plaintiff. But vide post, ch. of Tro- 
 ver in cases of Bankruptcy. 
 
 5. Of the Evidence in Actions of Trespass against Offi- 
 cers of the Excise or Customs.(s) 
 
 1. As the Action must be brought against these Offi- 
 cers, for any thing done in the execution of their duty 
 within three monms,() the Plaintiff's Attorney should 
 always have the Writ in Court, and be prepared with 
 proof of the time of the actual service of it, to ascertain if 
 the three months have run since the offence commit- 
 ted^*/) 
 
 2. The venue must be laid in the County where the 
 offence was committed. (x) In making up the Evidence 
 therefore, it is necessary to ascertain, with precision, the 
 place where the Officer seized the Goods, and to see that 
 it is in the County laid in the Declaration. 
 
 (*) I Esp. Dig. N. P. 408. (0 Stat. 17. Geo. II.. 
 
 (u) 2 H. Black. 14. (x) Same Stat.
 
 1 90 Of the Evidence in [CHAP. VIIL 
 
 3. As a notice of Action is required to be given by the 
 Statutes, referred to below,(^) which notice is to express 
 clearly the cause of Action, and the name and place of 
 abode of the Plaintiff and of his Attorney, and to be serv- 
 ed one month before Action brought, the Plaintiff must 
 have at the Trial of the Cause, the witness who served the 
 notice, and compared it with the copy produced, and can 
 swear to the copy served, which the Defendant should 
 have notice to produce, and then have the Writ in Court 
 if called for. 
 
 4. The necessity of collecting the Revenue, making it 
 necessary that Officers should have the power of entering 
 Houses and seizing Goods, which are presumed to be 
 contraband ; the time, place, and manner of seizure, must 
 be attended to, and the Plaintiff must be prepared to rebut 
 the Evidence which the Defendant may bring forward, 
 which is as follows : 
 
 1. The Defendant may show, that he entered under a 
 Writ of Assistance out of the Court of Exchequer, which 
 must be produced and proved : he must then prove that 
 he entered the House in the day time, and was accom- 
 panied in the search and seizure by the Constable of the 
 place where the Plaintiff's House is situated, and where 
 he seized the Goods in question. 
 
 This Evidence would be conclusive : but the Plaintiff 
 may defeat it, by showing that the Officer was alone, and 
 
 (y) Stat. 23 Geo. III. c. 70, s. 30. and 24 Geo. III. Sess. 2. c, 
 4,7. s. 35.
 
 CHAP. VIII.] the Action of Trespass. 191 
 
 unattended by any Constable \(z] or if he was attended by 
 a Constable, that he was not the Constable of the place 
 where the seizure was made ;(#) if no Goods are found, 
 the showing that fact in Evidence, has been held to en- 
 title the Plaintiff to recover in Trespass for the breaking 
 and entering his House ; but that has been overruled, 
 where the Defendant has entered under a Warrant grant- 
 ed by two Commissioners : the Officer should, therefore, 
 on those occasions, give in Evidence the Warrant, and 
 prove the Commissioner's hand-writing to it.(6) 
 
 2. If the entering and seizure is made at night, the 
 Officer must also be accompanied by the Constable or 
 Officer of the place, or he will be a Trespasser. He 
 must, therefore, prove that fact.(c) 
 
 3. If the Goods taken have been condemned in the 
 Exchequer,(f/), the Officer should give in Evidence an 
 examined copy of the Judgment of Condemnation there, 
 and that is conclusive Evidence for him. That copy 
 must be proved by a witness who compared it with the 
 original. 
 
 G 
 
 But a condemnation of the Goods by an inferior juris- 
 diction, as by the Officers of the Excise or Customs, is 
 not sufficient. (e) 
 
 4. If the Officer seized any Goods liable to Duty, 
 
 (z)3 Wils. 61. 
 
 (a) 2 Wils. 405. 0) 1 Term Rep. 535. 
 
 (c) St. 8 Anne, c. 9. 10 Anne, c. 19. s. 12. 
 
 (rf) 2 W. Black. Rep. 977. (e) 2 W. Black, Rep. 1 174.
 
 192 Of the Evidence in . [CiiAp. VIIL 
 
 which in fact are not forfeitable,( f) he must show that 
 they were on board a Boat and no Officer with them, or 
 coming by the waterside, on circumstances of credible 
 information. This is matter of vwdvoce proof by wit- 
 nesses who saw the seizure made. 
 
 5. And if an Officer justifies a search under a Justice's 
 Warrant,(g-) though it recites an Information made before 
 the Justice, the Warrant is sufficient Evidence without 
 producing the Information, which Warrant he must regu- 
 larly prove. 
 
 For Evidence under a Justification by an Officer, 
 see ante, False Imprisonment, and see 1 Esp. Dig. N. P. 
 422. 
 
 The general Pleas in this Action are 
 
 
 
 1. A Release, which is a good Plea in this Action ;(/z) and 
 if there are more Defendants than one, a Release to one 
 will be good as to all. The Evidence of this is by 
 Deed, and the execution must be proved by the subscrib- 
 ing witness, 
 
 . 
 
 2. A recovery in another Action for the same Trespass, 
 which is also a good bar ;(z) to support the Plea to that 
 effect, the Defendant must give in Evidence, by the ex- 
 amined copy, the Judgment obtained in the former 
 Suit, and prove that the cause of Action was the 
 same.(A-) 
 
 (/) Stat. 6 Geo. I.e. 21. 
 
 CsO MSS. 1 Esp. Dig.N. P. 428. (A) Hob. 66. 
 
 (i) Cro. EHz. 30. (*) 3 East. 346.
 
 CHAP, VIII.] the Action of Trespass . 193 
 
 3. By Stat. 21. Jac. I. c. 16. Disclaimer and tender 
 of amends before Action brought, is a good Plea. To such 
 a Plea, the Defendant must bring Evidence to prove, that 
 he committed the Trespass by mistake, and, of course, 
 that it was involuntary : he must also prove the Tender 
 of the precise sum pleaded, in the usual way, and then 
 call witnesses to prove that the sum he tendered was a 
 full compensation for the injury he did. 
 
 4. The General Issue in this Action is, Not Guilty;' and 
 under it the Defendant may give title in Evidence ;(/) 
 that is, he may show, that the land is his, not the Plain- 
 tiff's : as if a Tenant for life died who had let the land to 
 Plaintiff, and his successor let it to the Defendant who 
 entered on it,(tfz) he may show his right to do so, under 
 the Plea of the General Issue. So he may show, that he 
 held under a good lease which is unexpired ; in which 
 case he must produce and prove the Lease by the sub- 
 scribing witness. 
 
 But the Defendant cannot, under that Issue, give 
 in Evidence matters of excuse : as accident, inevita- 
 ble necessity, negligence of the Plaintiff himself, or the 
 like.(rc) 
 
 In this Action, the boundaries of property separated by 
 a Ditch often comes in question. In that case, the rule 
 of la"w, as laid down by Judge Lawrence in the case 
 of Vowles v. Miller, (o) is, that the edge of the 
 
 (0 7 Term Rep. 354. (m) 8 Term Rep. 403. 
 
 (?/) Esp. Dig. N.P. 429. (o) 3 Taunt. 137. 
 
 Bb
 
 194 Of the Evidence in [CHAP. VIII. 
 
 Ditch is the boundary of his land who owns the back 
 of it. 
 
 In Trespass de bonis asportatis, as the Plaintiff is con- 
 fined in his Evidence to the particular Goods men- 
 tioned in the Declaration,^) in settling the Evidence, 
 therefore, for the Plaintiff, these only are to be attend- 
 ed to. 
 
 / Bull. N. P. 84.
 
 the Action of Trespass. 195 
 
 CHAPTER IX. 
 
 OF SETTLING THE EVIDENCE IN THE ACTION OF EJECT- 
 MENT. 
 
 
 
 JJLN settling the Evidence in this Action particular accu- 
 racy is necessary, as the Plaintiff must recover by the 
 strength of his own title. It must be taken to be a gene- 
 ral rule, that, in every case, the Plaintiff must be prepared 
 with Evidence to prove that the Land, or Tenements, 
 which he seeks to recover by Ejectment, have not been 
 held adversely to him for twenty years ; or rather he must 
 prove, that he, or those under whom he claims, have 
 been in possession within that period ;(a) (this arises 
 under the Statute 21 Jac. I. c. 16.) unless he can bring 
 himself within some of the legal exceptions given by that 
 Statute, as Infancy ; in which case he must prove the 
 time of his birth ; that he was non compos, imprisoned, or 
 beyond sea : each of which facts must be distinctly proved 
 before he can go into his case, if the twenty years have 
 run ; and in the case of a woman being Plaintiff, she 
 must show that she was Covert during the twenty years, 
 by proof of an actual marriage as before stated, ante, 113. 
 All this is matter of parol Evidence, as the Plaintiff may 
 
 (c) i Esp. Dig. N. P. 440.
 
 Of Evidence in [Cn A p. IX. 
 
 show his possession, either by the actual occupation of 
 the Premises by his Ancestor, under whom he claims, or 
 by himself, or if by a Tenant, by proof of Rent having 
 been paid to him, or to his Ancestor. If he is unable to 
 give positive Evidence to this effect, he must abandon his 
 Action. 
 
 The next general rule to be observed is, to see that the 
 Plaintiff has laid his demise in the Ejectment, after his 
 own title has accrued ; for this purpose, in every case, 
 the day of the demise, laid in the Declaration in Eject- 
 ment, must be first and carefully lookejl to, as well as the 
 time when the Lessor of the Plaintiff 's title or right of 
 entry accrued, for the demise must be subsequent to it. 
 As e . g. if a Tenant was bound to quit at Michaelmas, 
 and not having done so, his Lessor brings an Ejectment 
 to recover the possession ; as the Lessor had no tide to 
 the possession till after the 29th of September, he must 
 lay his demise subsequent to that day ; that is, as his title 
 commences on the 30th of September, from which time 
 only he has a right to the possession of the lands, the 
 demise is usually laid on that day, or on the 1st of Oc- 
 tober, to hold from the 30th of September. 
 
 1. The principal cases in Ejectment are between Land- 
 lord and Tenant. 2. By a Mortgagee. 3. To obtain 
 possession under an Elegit. 4. For Copyhold Premises. 
 5. By a Devisee. 6. By the Heir at Law. These 
 will be distinctly considered.
 
 CHAP. IX.] the Action of Ejectment. 197 
 
 1. Of the Evidence in cases between Landlord and Te- 
 nant. 
 
 1. If the Ejectment is brought by the Landlord, on the 
 ground that the Tenant held over after the expiration of 
 the Lease under which he held, the Plaintiff must pro- 
 duce and prove the Lease, and the execution of it by the 
 Tenant ; and then the Term originally granted will ap- 
 pear by references to it, and, of course, its expiration by 
 the effluxion of time : by that Evidence, the Plaintiff 
 shows his right to the possession, and that the Defendant 
 was wrongfully in possession. 
 
 2. If the Ejectment is founded on a notice to quit, the 
 Plaintiff must prove that Defendant was his Tenant ; that 
 he paid him Rent ; and give some Evidence, that his 
 holding commenced at some time, or feast, prior to the day 
 laid in the Declaration : this may be done by giving no- 
 tice to produce receipts, and proving either by them, or 
 other Evidence, the payment of Kent by Defendant, for Rent 
 due at some quarter or half year. He must then prove a re- 
 gular notice to quit, corresponding with the Defendant's 
 holding ; that is, if the Defendant's holding ended at Mid- 
 summer, the notice must be to quit at Midsummer. He must 
 prove that this notice was to quit at the regular time, and 
 served on the Defendant at least six months previous to the 
 expiration of his holding. This notice is proved, by 
 giving the Defendant notice to produce that served on 
 him ; and the Plaintiff must, in case the service is not 
 admitted, call the Person as a witness who served the 
 notice, who should produce a copy of that served on the 
 Defendant, which he must swear was a copy, and prove 
 the time of actual service on the Defendant, or the leaving
 
 198 Of the Evidence m [CHAP. IX- 
 
 it at his dwelling house, so that it may appear to be 
 more than six months previous to the end of Defendant's 
 holding. 
 
 As questions are often raised on the validity of this 
 notice, it must be observed, that it is essential to its va- 
 lidity.^) 
 
 1. That it be signed by the Party entitled to the pos- 
 session, and by all who are so entitled :(c) whose hand- 
 writing to it should be proved. 
 
 But a notice to quit, given by a Receiver of an Estate, 
 under the Court of Chancery, would be good ; but he 
 should show his appointment.(c?) And the witness, who 
 served the notice, or some other, should be prepared with 
 proof of his signing or hand- writing. 
 
 2. It must be served six months previous to the time 
 required by the Lessor of the Plaintiff for Defendant to 
 quit, and must end with the year of Defendant's holding. 
 But if served on the day after any Quarter day ; as, for 
 example, the 30th of September, to quit on the Lady-day 
 following, it will be good.(e) 
 
 If the notice to quit is witnessed by any Person, he 
 must be called ; and no parol Evidence will be admitted 
 to show, that the Tenant read or understood the no- 
 tice.(/) 
 
 () Esp. Dig. N. P. 467. (c) 5 East. 498. 
 
 (cf) 12 East. 57. (e) Esp. Dig. N. P. 467. 
 
 (/) 2 Mau. & Selw. 62.
 
 CHAP. IX.] the Action of Ejectment. 199 
 
 3. It must express the time when the Defendant is to 
 quit, as Michaelmas-day, Lady- day, or the like. 
 
 But if the notice is for Michaelmas or Lady-day, it 
 means the 29th of September or 25th of March, being 
 the new Style \(g) and parol Evidence is inadmissible to 
 show, that where the notice said Michaelmas, it meant 
 old Michaelmas- day ; and it must be to quit all the de- 
 mised Premises, and not any part of them, (h) 
 
 4. It must be served on the Tenant of the demised 
 Premises, or at his house, which will be sufficient :(z) 
 proof of which must be made by the Person who served 
 it ; and if there be Joint-tenants of the Premises, service 
 on one on the Premises will be sufficient, (k) 
 
 When there are under Tenants, the Landlord is not 
 obliged to serve any notice to quit on them, it is sufficient 
 to give his own Tenant notice to quit ; and when he ob- 
 tains Judgment against him, the Sheriff will turn out all 
 the under Tenants.(/) 
 
 3. The third case of Ejectment, between Landlord 
 and Tenant, is, where it is for non-payment of Rent, or 
 breach of Covenant. 
 
 This, for non-payment of Rent, is by Statute 4 Geo. II. 
 
 (ar) 1 East. 312. (A) 14 East. 247. 
 
 (*) 4 Term Rep. 464. (k) 7 East. 551. 
 
 (/) Per Mansfield, C. J. 2 Bos. & Pul. N. R. 330, et Vide 14 
 East 234,
 
 200 Of the Evidence in [CHAP. IX. 
 
 c. 4. when by the terms of the Tenant's holding, the 
 Landlord has reserved to himself a right of entry in case 
 of half a-year's Rent being in arrear ; for this purpose, 
 the Lessor of the Plaintiff must produce and prove, by 
 the subscribing witness, the lease under which the De- 
 fendant held. That being referred to, the reservation of 
 the Rent, and the right of entry claimed by the Landlord, 
 will appear ; the Affidavit of the half year's arrear of Rent 
 is made before the Ejectment is brought ; but proof of it 
 may be given at the Trial. , But the Plaintiff is required 
 to give further Evidence ; that is, he must either prove 
 by a witness, that he demanded the Rent upon the Land, 
 or Premises, at a convenient time before sunset of the day 
 the Rent became due, and that it was not paid ;(m) or he 
 must prove in the same way, that there were no goods, or 
 property, on the Premises, sufficient to answer die Rent 
 in arrear. 
 
 Without.this Evidence, in an Ejectment brought for 
 non-payment of Rent, the Plaintiff will be non-suited. 
 
 If the Ejectment is brought on the Covenant for re-en- 
 try for breach of any other Covenant in the Lease, the 
 Plaintiff must first prove, as before, the execution of the 
 Lease by the subscribing witness ; then, by reference to 
 the Lease, the Covenant will appear for the breach of 
 which the Plaintiff brings his Ejectment. 
 
 The Plaintiff must then give Evidence of the breach of 
 that Covenant ; and then his right of entry appears by the 
 Lease, and, of course, his right to recover. Thus if the 
 
 COT) 7 Terra Rep. nr.
 
 CHAP. IX.] the Action of Ejectment. 201 
 
 breach of Covenant complained of is, that the Defendant 
 ploughed up old meadow, he must show that the meadow 
 broke up was ancient meadow, and that the Defendant 
 ploughed it up, or broke it up. 
 
 In cases of Ejectment for breach of Covenant, a Judge 
 will make an order for a Particular of the breaches the 
 Plaintiff goes for ; and, at the Trial, the Plaintiff will not 
 be allowed to go into Evidence of any other. This 
 order should be obtained in every case, as the Defendant 
 will know how to regulate his Evidence, and confine it to 
 such points only as 
 
 If the Ejectment is for non-payment of Rent, proof of 
 the payment lies on the Defendant ; and though the right 
 of entry is in the words of the Lease given for non-pay- 
 ment of Rent, " being lawfully demanded"(n) three 
 Judges, against one, decided, that the Lessor was not call- 
 ed upon to prove a previous actual demand of it before he 
 brought his Ejectment ; that Evidence is, therefore, un- 
 necessary. 
 
 These are cases where the relation of Landlord and 
 Tenant is clear, and the Action of Ejectment comes on 
 to Trial, by reason of the Defendants wrongfully keeping 
 possession after the determination of their Tenancy. But 
 there are cases where the Landlord may maintain an 
 Ejectment without any notice to quit. 
 
 1. If the Defendant disclaims to hold of the Lessor of 
 the Plaintiff, and sets up a title in himself or as holding 
 under some other Person. In that case, no notice to quit 
 
 () Doe v. Alexander. 2 Mau. Sc Selw. 525. 
 C c
 
 202 Of the Evidence in [CHAP. IX. 
 
 is required ; but the Lessor of the Plaintiff must go into 
 his title, and prove it regularly ; for the Defendant being 
 in possession, the Plaintiff must recover by proving him- 
 self entitled. 
 
 2. If the Tenant has held under a Lease made by a 
 Tenant for life, who is dead, or who had power to make 
 Leases which have not been well executed,(o) the Person 
 entitled in remainder or reversion may maintain an Eject- 
 ment against the Tenant in possession. But in such case 
 he must prove his title to the Premises by regular Evi- 
 dence ; in which case, if the Tenant sets up any Lease, it 
 is answered by showing, that the Lessor who made that 
 Lease was only Tenant for life, and that he -was dead ; 
 ha he was only Tenant for life, will appear from the 
 Title Deeds which the Plaintiff must prove in support of 
 his title ; or if he had power to make Leases, under which 
 the Lease relied on by the Tenant was made, the Plain- 
 tiff may show that he did not pursue the power, and in 
 what respect, and that, of course, his Lease was void. 
 
 This is the case, where he in reversion or remainder 
 has never accepted Rent from the Tenant; for if he 
 has,(/>) though it does not set up the Lease, it makes the 
 Tenant a yearly Tenant, and as such entitled to a notice 
 to quit ; which, in such case, must be proved as before 
 stated, or the Plaintiff cannot recover. 
 
 3. Where the Lease has expired by effluxion of time, 
 and the Tenant continues in possession, no notice to quit 
 is required, but the Lessor may immediately proceed by 
 
 (o) Esp. Dig. 7 4. (A) 7 Term Rep. 83,
 
 CHAP. IX.] the Action of Ejectment. 203 
 
 Ejectment : but if he receives Kent for any time after the 
 expiration of the Lease, the Tenant then becomes a yearly 
 Tenant, and entitled to notice to quit. 
 
 4. Where a Mortgagor has made a Lease or Demise 
 subsequent to the Mortgage, the Mortgagee may bring 
 an Ejectment without giving any notice, for the demise is 
 absolutely void.(<7) 
 
 5. Where an entry is given for breach of Covenant, no 
 notice to quit is required. 
 
 In Ejectment, between Landlord and Tenant, it may 
 be taken as a general rule, that the Tenant cannot dispute 
 his Landlord's title after he has paid him Rent, but he 
 may show his Landlord's title expired ; as if he was Te- 
 nant per auter vie, he may show that Person dead. 
 
 Of the Evidence by the Defendant in Ejectment. 
 
 It is sufficient for a Defendant to prove a title out of the 
 Plaintiff, though he proves none in himself, in all cases ; 
 and first, as between Landlord and Tenant, or other Per- 
 sons claiming the Land as Owner, (r) 
 
 1. The Defendant, on proof of the notice to quit being 
 made by the Plaintiff, and if specifying a particular day 
 on which the Defendant was to quit, may give in Evidence 
 that his Tenancy commenced, not on the day mentioned in 
 the notice, but on another and different day ; and this will 
 nonsuit the Plaintiff. This is done either by showing the 
 
 (?) Keech v. Hall, Dougl. 21. (r) 1 Esp. Dig. 462. and N. P.
 
 204 Of the Evidence in [CHAP. IX. 
 
 actual time when Defendant became Tenant by a witness, 
 or by some agreement in writing, an expired Lease or 
 otherwise. 
 
 2. He may show the true tinw of serving the notice to 
 quit, and that it was short of six months ; or that it never 
 came to his hands : as if Plaintiff proved the service of 
 the notice on some Person on the Premises, but who, on 
 being called, proved that he had never delivered it to the 
 Tenant.(j) This must be proved by parol. 
 
 But where it is said that a notice to quit is insufficient 
 if short of six months, that is, the case where the Tenan- 
 cy is a yearly one : for if the taking of the Premises was 
 by the month or week, a month or week's notice would be 
 sufficient. So if there is an agreement that the Tenant 
 shall accept any shorter notice, on proof of the agreement 5 
 and the corresponding short notice, that will be sufficient. 
 And where the Tenant agrees to take a shorter notice 
 than six months ; still that must end with the year, unless 
 otherwise expressed ; with which the notice to quit must 
 correspond. 
 
 3. He may show a waiver of it by the Landlord. (t) 
 
 This may be done, either by proving receipt of Rent 
 by the Landlord as Rent, or a Distress made by him for 
 Rent becoming due after the notice to quit expired, or by 
 his bringing an Action of Covenant for it ; for by receiv- 
 
 (s) Jones TJ. Marsh, 4 Term Rep. 464. 
 
 \t] 1 Esp. Dig. N. P. 472. Cowp. 243. 6 Term Rep. 219. 
 JBll. N. P. 96.
 
 CHAP. IX.] the Action of Ejectment. 205 
 
 ing the Rent, or making a Distress for Rent, so subse- 
 quently due, the Landlord admits the Defendant to be 
 his Tenant at that time ; for did he rely on the notice, the 
 Tenant would have been "a Trespasser. 
 
 To give the Defendant, however, the effect of these 
 acts as amounting to a waiver if it is receipt of Rent he 
 relies on,(w) he must show that the Plaintiff received the 
 money as Rent ; that will best appear by the receipt : if 
 the Landlord had distreined, the Defendant should show 
 the notice of Distress served on him, which specifies for 
 what it was made ; or if there was a Replevin, he should 
 show by the Avowry, the Landlord claimed by it Rent 
 subsequent to the notice : for which purpose the proceed- 
 ings in Replevin or an examined copy must be given in 
 Evidence. If it was on the ground of an Action of Cove- 
 nanfj the Declaration in Covenant should be either produc- 
 ed, or an examined copy of it. 
 
 But in addition to this Evidence, in order to make any 
 of these cases amount to a waiver of the forfeiture, the 
 Tenant must prove that at the time the Landlord knew of 
 a forfeiture being committed ;(v) such as if he lived near 
 the demised Premises, and saw the Defendant commit 
 the breach of Covenant on which he goes ; as ploughing 
 up old meadow, e. g. and afterwards accepted Rent : that 
 would waive the forfeiture. But the Defendant must give 
 these facts in Evidence by a witness. 
 
 But it must be observed, that where the breach of CO- 
 CM) 1 Esp. Dig. N. P. 478. Pennant's Case, 3 Co. 64. 
 (v) Cowp. 803.
 
 
 
 206 Of the Evidence in [CHAP. IX. 
 
 venant is a continuing one, as suffering the Premises to be 
 out of repair ;(x) the acceptance of Rent, or distraining, 
 is only a waiver of the then existing breach of Covenant ; 
 and that if the Tenant continues to suffer the Premises to 
 continue unrepaired, an Ejectment may be brought for 
 such continuing breaches : these matters must be, there- 
 fore, well attended to in settling the Evidence on them. 
 It is, therefore, always prudent for the Plaintiff to be pre- 
 pared with proof of an existing breach of Covenant as near 
 to the time of bringing the Ejectment as possible. 
 
 Of the Evidence on the part of the Lessor of the Plaintiff, 
 as Assignee of a Bankrupt, Mortgagee, Lord, or Copy- 
 holder, under an Elegit, by Devisee, or Heir at Law. 
 
 1. If an Ejectment is brought by the Assignees of a 
 Bankruptcy] in addition to the proof of the Commission, 
 and that they are Assignees as before stated : they must 
 show that the Deed of Assignment from the Commission- 
 ers to them was enrolled. This will appear by the in- 
 dorsement of the proper Officer on the Deed, and is so 
 proved.(r) 
 
 This is necessary to complete their title ; but as the 
 Assignment of the Commissioners only operates on lands 
 which were the Bankrupt's at the time of the assignment ; 
 the Defendant may show that the lands for which the 
 Ejectment was brought came to him afterwards, and non- 
 
 (#) Doe v. Bliss, 4 Taunt. 735. 
 
 (y) 1 Esp. Dig. N. P. 439. Cas. K. B. or 12 Mod. 3. 
 
 (z)Per Buller Dougl. 56.
 
 
 LW ^ '''' 
 CH A p. IX.] the Action of Ejectment. 207 
 
 suit the Plaintiff; as, in that case, there should be a new 
 Deed of assignment and enrollment of it.(a) 
 
 2. If the Ejectment is brought by a Mortgagee. 
 
 This Ejectment can only be maintained against the 
 Mortgagor himself who is in possession of the mortgaged 
 Premises, or against a Tenant who has come into posses- 
 sion of them under him subsequent to the Mortgage. In 
 that case the Plaintiff is only called upon to prove the ex- 
 ecution of the mortgage Deed, and the possession as 
 stated ; then by reference to the Deed when proved, it 
 will appear that the time for payment of the money is 
 elapsed, and, of course, the right of entry is complete. 
 
 If the Defendant was a Tenant to the Mortgagor prior 
 to the Mortgage, he must show that he was so, either by 
 proving his Lease, or showing a demise to him so made 
 and still existing ; and that will nonsuit the Plaintiff. 
 
 3. If the Plaintiff's Ejectment 'is to obtain possession 
 of Premises under an Elegit, he must give in Evidence an 
 examined copy of the Judgment Roll which he obtained, 
 and under which the Elegit issued, and which contains 
 the award of the Elegit, and the Return of the Inquisition ; 
 but he need not produce a copy of the Writ of the Inqui- 
 sition, and the Sheriff 's return on it.(6) That Roll sets 
 out the Inquisition held by him, and the finding of the 
 Jury of the Premises for which the Ejectment is brought. 
 
 As the Return to the Inquisition contains the finding of 
 
 (a) Doe v. Mitchell, 2 Mau. & Selw. 446. 
 ( 2 Mau. Sc Selw, 565.
 
 208 Of the Evidence in [CHAP. IX 
 
 the Jury of the Premises for -which the Ejectment is 
 brought, it must be attended to, that it is accurate in des- 
 cribing and finding the Premises by metes and bounds ; 
 or the objection may be taken at the Trial, and the Plain- 
 tiff cannot recover. (c] 
 
 4. If the Ejectment is for Copyhokl lands, it may be by 
 the Lord for a forfeiture, or by the Tenant to recover land 
 so seized by him, by a person claiming as Heir ; or as 
 entitled by purchase. 
 
 If the Ejectment is by the Lord for a forfeiture > he 
 must, 1. Show that the Defendant was a Copyholder of 
 the Manor, of which he is -the Lord : that will appear by 
 his admission on the Rolls.(f/) 2. He must prove a cus- 
 tom of the Manor for the Lord to seize for a forfeiture by 
 reason of the act done by the Tenant ; as by cutting 
 Timber, for example; and then show that the Tenant 
 committed that act.(^) The custom is generally proved 
 by the Steward, or some ancient Persons who have long 
 known the Manor, and" that know the custom. The act 
 of the Defendant is matter of parol Evidence. He should 
 also show, that he was Lord when the forfeiture took 
 place, and that the act was done within twenty years. 
 
 If the Lord has seized the Land as forfeited, and the 
 Copyholder who has been evicted, or who claims to be 
 entitled, brings the Ejectment ; the Plaintiff in such case 
 must prove, if He was evicted, his own admission by the 
 Rolls of the Court ; if he claims as Heir, Devisee, or 
 
 (c) 1 Barn. & Aid. 40. (d) Roe v. Hillier, 3 Term Rep. 162. 
 (e) 1 Esp. Dig. N. P. 448.
 
 CH A r. IX.] the Action of Ejectment. 209 
 
 Purchaser, under the Tenant who was last seized of the 
 Copyhold, his title is established by proving the admission 
 of the Person under whom he claims, by the Court Rolls, 
 and then establishing his title ; if as Heir at law, by show- 
 ing his pedigree : if as Devisee, by proving the Testator's 
 Will : and if by Purchase, by proving the conveyances 
 from such Person to him. When that is done, the De- 
 fendant is called upon to show his title which is under the 
 forfeiture. 
 
 But where the Ejectment is for a Copyhold, and the 
 Person who claims title(a) has never been admitted, he 
 must give in Evidence, an application to the Steward of 
 the Court to be admitted, and a refusal on his part, for an 
 actual admission is not necessary ; a proceeding which in 
 fact should be taken in the case of every Ejectment 
 brought for Copyhold premises : this must be done by 
 some Witness who accompanied the Lessor of the Plain- 
 tiff for the purpose of demanding admission, or by proving 
 a written answer to such an application, from the Steward 
 or Lord. 
 
 By Statute 55 Geo. III. ch. 192. a Devise of a Copy- 
 hold Estate by Will, is enacted to be effectual and good 
 without a previous surrender to the use of it ; so that the 
 production of the Court Rolls, to show a previous surren- 
 der to the use of the Will, is now no longer a necessary 
 part of the Evidence in an Ejectment .for Copyhold 
 Premises : proof of the Will is sufficient for that pur- 
 pose. 
 
 (o) Doe v. Bellamy, 2 Mau. 8c Selw. 87. 
 Dd
 
 $10 Of the Evidence in [CHAP. IX, 
 
 5. If the Ejectment is brought by the Devisee of an 
 Estate in Fee, the Plaintiff is required to give strict proof 
 of the Execution of the Will under which he claims, as 
 the Defendant generally is the heir-at-law, or a purchaser. 
 
 For that purpose the Plaintiff must prove the death of 
 the Testator, and that he was in possession of the Estate 
 at the time of his death. He must then produce the ori- 
 ginal Will of the deceased. If there was no personal 
 Estate given by it, so that it was not necessary to have 
 any Probate of it, the Devisee must produce it ; if it was 
 brought into the Commons, by reason of some personal 
 property passing by it, an Officer from thence must 
 produce the original Will, and state from whence he 
 brought it. 
 
 The Execution of it by the Testator is then required to 
 be clearly proved,(6) according to the Statute of Frauds, 
 which requires the attesation of three Witnesses ; and this 
 must be done by one at least of the Subscribing Witnes- 
 ses, who must be called to prove, that the Testator exe- 
 cuted the Will in his presence, or acknowledged that he 
 had signed it, and that of the two other Witnesses who 
 attested and subscribed it as such, in the Testator's pre- 
 sence, when the attestation so expresses it. But if there 
 are three Witnesses to it, the Subscribing Witness need 
 not see the act bf signing by the Testator :(c] it will be 
 sufficient if he acknowledged to them together, or each of 
 them separately, that the Will was his, and the signature 
 his hand-writing ; and the Subscribing Witnesses must 
 
 (6) Phillips on Evidence, 434. 
 
 (0 id. 4sr.
 
 CHAP. IX.] the Action of Ejectment 211 
 
 subscribe their namefe in the Testator's presence, but it 
 need not be so expressed in the attestation. 
 
 In practice it is usual to call one Witness only to prove 
 the Execution of it by the Testator, and the attestation of 
 it by the other Witnesses ; but that can be the case only 
 when they were all present together. If the Witnesses 
 attested the Will at different times, they must be all call- 
 ed to prove the Execution of the Will by the Testator in 
 the presence of each, and their attestation of it in his pre-^ 
 sence ;(d) for the Will must be regularly executed in the 
 presence of three Witnesses. If the sanity of the Testa- 
 tor is disputed, or the regular Execution of the Will, it 
 will always be prudent for the Plaintiff to call all the wit- 
 nesses to it. 
 
 If any of the Subscribing Witnesses is abroad, it will 
 be sufficient to prove his hand-writing ;(e] and when they 
 are all dead, it will be sufficient to prove the Testator's 
 hand-writing : but a Will thirty years old proves itself, 
 as in the case of a Deed ; it therefore need only be produ- 
 ced. 
 
 This is the case of a Devise of Estates of Inheritance : 
 (/*) but if the Property, sought to be recovered, is Copy- 
 hold or Leasehold only ; as the Copyhold by Stat. 55 
 Geo. III. requires no surrender, and it and Leasehold 
 pass by a Will requiring no formal attestation, the Plain- 
 tiff" should prove that the Testator was entitled to it ; in 
 the case of Copyhold, by showing his admission and en- 
 
 (rf) Phillips on Evidence, 439. (<?) 2 Stra. 1 109. 
 (/) 1 Esp. Dig. N. P. 481.
 
 Of the Evidence in [CHAP. 1X 
 
 joyment of it ; and in the case of Leasehold, by producing 
 either the Lease under which .he held it, or showing: his 
 
 * o 
 
 title to it. The Plaintiff should then produce the Probate 
 of the Will, by which the Testator gave it to him ; and 
 then, in the case of Leasehold, prove the assent of the 
 Executor or Administrator to the bequest. To prove 
 this last fact the Executor himself, or Administrator, may 
 be a witness, or some Person who knows of the assent 
 being given ; so proof of the Executor permitting the 
 rent to be received by or for the use of the Legatee, will 
 be sufficient proof of it. 
 
 Of the Evidence by the Defendant in the case of an Eject- 
 ment by a Devisee. 
 
 1. The Defendant may prove that the Testator, at the 
 time of making his will,(g-) was not sane. This is matter 
 of fact to be proved by Witnesses, who knew him. 
 
 2. That he was an Infant. If the Ejectment is for 
 Lands, or Estates of Inheritance, he must, in that case, 
 prove the Testator to be under the age of twenty-one 
 years by Evidence of the time of his birth, as is before 
 mentioned in cases of Infants, before which time he can- 
 not devise such Estates. 
 
 But if the Ejectment is for Copyhold Lands, the Plain- 
 tiff may show, that by custom, an Infant of a certain age 
 may devise by will ; and if it is for Leasehold ; a male 
 may devise such property at the age of 14 years, and a 
 
 
 
 O) 1 Esp. Dig. N, P. 487. 
 "
 
 CHAP. IX.] the Action of Ejectment. 213 
 
 female at 12. The age of the Testator being proved as 
 before stated, is therefore Evidence of title. 
 
 3. He may prove that Testatrix was, at the time, a 
 Feme Covert. For she cannot make a Will, unless a 
 power to do so has been reserved in her settlement when 
 married. Her marriage must be proved as is before 
 stated ; but may be rebutted, by proof of the Settlement 
 before marriage, by which a power was reserved to her to 
 make a Will : this must be done by producing and prov- 
 ing the Deed by the attesting Witness. ' 
 
 4. He may show that the Will was obtained by fraud, 
 circumvention, or availing himself of the Testator's im- 
 becility of mind or body. This is matter of fact to be 
 proved by viva voce Evidence of Persons who were with 
 the Testator before or at the time of his death, or knew of 
 his habits before it. 
 
 5. He may prove the Will set up by the Devisee to 
 have been cancelled or revoked; this is by something done 
 in fact, or by operation of law. This last can only be ef- 
 fectual under the Statute of Frauds, by showing another 
 Will or Codicil in writing, or other Writing, declaring it 
 to be cancelled or revoked \(K] and which must be duly- 
 executed as the original Will was, or by the first Will 
 being torn, burnt, or cancelled by the Testator himself, 
 or by some one in his presence, and by his direction. 
 
 When this is to be set up in answer to the Will on 
 which the Devisee relies, Defendant must produce an- 
 
 (A) Esp. Dig, 490.
 
 214 Of the Evidence in [CHAP. IX. 
 
 other Will or Codicil of later date than that given in Evi- 
 dence by the Devisee ; and he must prove the Execution 
 of it with the same solemnities as the other was proved 
 with.(z') If the Defendant relies on the burning or tearing 
 of the first Will, that will appear by the Will itself when 
 produced, but it may be proved on the other side, that it 
 was done by accident ; otherwise, either the burning or 
 tearing of it is good proof of cancellation. 
 
 But there is this difference between the setting up a 
 second Will as t revocation of the first,() and the tear- 
 ing or burning of it, in this respect, that though the 
 second Will will operate as a revocation of the first, 
 where both exist together ; yet, if the Testator cancelled 
 the second Will, and the first remained undestroyed, the 
 latter is thereby set up :(/) but if the first Will was can- 
 celled, as by tearing off the seal and hand, or burning the 
 copy, it will not be set up by cancelling the second will : 
 these are matters of fact to be proved by Witnesses. 
 
 6. The Defendant may set up, in answer to a 
 the revocation of it by operation of law. These are, 1. 
 Marriage and the birth of a child taking place subsequent 
 to the making of the Will. For this purpose the De- 
 fendant must prove the actual marriage of the Testator as 
 before-mentioned, (page 99.) and prove the birth of a 
 child or children. 2. By producing and proving a Jine 
 levied of the lands in dispute, or a recovery suffered, or 
 any Deed of Conveyance or Settlement of them, made 
 subsequent to the Will, or what amounts to a change of 
 
 (0 1 P. Wm. 343. (*) Esp. Dig'. 491. 4 Burr. 2512. 
 
 (0 Cowp. 49. (m) 1 Esp. Dig. N. P. 492.
 
 
 CHAP. IX.] the Action of Ejectment. 215 
 
 the Estate. In such case the Officer's exemplification and 
 a copy of the Fine or Recovery should be produced, and 
 the Execution of the Deed declaring the uses be duly 
 proved. 
 
 7. The Defendant may show the Will to be inopera- 
 tive on the ground, that the Testator became entitled io the 
 Estate in question, by descent or purchase, subsequent to 
 the making of the Will for such lands which pass by it. 
 This is done by showing the Conveyances under which 
 the Testator took, and their dates of Execution. 
 
 5. Of the Evidence in an Ejectment brought by a per- 
 son claiming as Heir-at-law. 
 
 In this case the Plaintiff must make out his case by 
 strict Evidence of Pedigree, in an unbroken line of des- 
 cent. If he claims to be son of the Person last seized, 
 he must prove not only that he was so, but was his legi- 
 timate son. 
 
 The best Evidence of this, is proof of the actual mar- 
 riage of his Father and Mother, by Witnesses, who were 
 present at the time ; the copy of the marriage registry, 
 and cohabitation. 
 
 This -is done by producing an examined copy of the 
 Register from the Church Books, and the viva voce testi- 
 mony of Witnesses who know the parties. 
 
 When such full and precise Evidence cannot be had, 
 their cohabitation: the introduction of the Plaintiff's
 
 
 216 Of the Evidence in [CHAP. IX. 
 
 Mother by his Father as his Wife : her reception as such 
 in Society : his declarations that they were married : is all 
 good Evidence, and may be proved by Persons acquaint- 
 ed with the Family. 
 
 The Plaintiff should also prove, that his Father either 
 had no other Son, or that he was the eldest, if he had : 
 and if the Ejectment is by a woman, who claims as Heir, 
 she should prove, that her Father had no Son. 
 
 For this purpose, entries by the parents, in the Family 
 Bible, of the birth of their children, have been held good 
 Evidence. Entries in the Books of the Parish where the 
 Father and Mother resided, of their baptism, are good 
 Evidence, and are proved by copies examined with the 
 original. They express the time of the birth of their 
 children, and of course ascertain which is the eldest : but 
 as it often happens that the Father and Mother may have 
 had many children baptized in the same Parish ; and the 
 Plaintiff may appear by the Registry not to be the eldest, 
 though the others are dead ; it will then be necessary for 
 him to prove their deaths ; and if any born before him 
 appear to have been married, he should prove either that 
 they had no issue, or that if they had, that they are dead, 
 as the children of an elder brother have title before him : 
 for this purpose examined copies of the Registers of bu- 
 rials are good Evidence. 
 
 These facts are, however, capable of proof by Wit- 
 nesses who knew the Family, who can speak to the rela- 
 tionship in which the Plaintiff stood to the Person he 
 claims under, and who may know of the deaths of those 
 who are before the Plaintiffs in point of title. But though
 
 CHAP. IX.] the Action of Ejectment. 217 
 
 this Evidence is sufficient, it is always advisable to have 
 the Copies of the Registers, as they are without sus- 
 picion. 
 
 In settling Evidence of Pedigree, it must be observed 
 as a Rule, that a Party has not made out his title suffi- 
 ciently, if by possibility there may be existing some 
 lineal, or collateral, Relation having better title than he 
 has. 
 
 But that there is such, is not to be supposed without 
 some ground : as if a Party proves himself to be the son 
 of John and Mary, it is not to be presumed that they had 
 a Son elder than the Plaintiff; but, if an entry is found, or 
 produced on the other side, or parol Evidence given that 
 they had a Son elder than the Plaintiff, it will be presum- 
 ed that he is living, unless the Plaintiff shows the contra- 
 ry ; and such Son having better title, the Plaintiff cannot 
 recover. 
 
 The Rules here laid down apply to cases of collateral 
 kindred : if the Plaintiff claims, for example, as the 
 nephew of the Person last seized, he must show that he is 
 heir to the eldest brother of such Person ; or if he derives 
 title as Nephew by the mother's side, that such Person had 
 no brother. 
 
 This is sufficient for the Plaintiff, as a prima facie case ; 
 and then the Defendant may impeach it. 
 
 If a Devisee, or any other Person, gets into possession, 
 and an Ejectment is brought by the Plaintiff claiming as 
 Heir-at-law to him last seized, either against a Person
 
 
 218 Of the Evidence in [CHAP. IX. 
 
 who claims in the same right, or a Devisee in possession ; 
 the Defendant may set up the defence of Bastardy in the 
 Lessor of the Plaintiff. 
 
 This is a question of fact to be proved by witnesses 
 only, in most cases, (ri] They are most usual where a 
 marriage had in fact taken place between the Plaintiff's 
 mother, and the Person whom he sets up as his father ; 
 but the Defendant can prove that the Plaintiff was born 
 before the marriage took place : while the Plaintiff's 
 Father was absent from England : or in a distant part of 
 the kingdom, where the Plaintiff was born, and had been 
 so for more than nine months preceding.(o) So that there 
 could be no presumption of access. 
 
 2. That -though a marriage had taken place, it was void 
 under the Marriage act, 26 Geo. III. c. 33.Q&) as being 
 by an Infant without the consent of his Father ; or if he is 
 dead, of the Guardian : or of the Mother, if there is no 
 Guardian, if living and unmarried ; and if there is no 
 Mother living and unmarried, of a Guardian appoint- 
 ed by the Court of Chancery : so by the same Statute 
 he may show that the marriage, though celebrated in a 
 church or chapel, was without publication of Banns or 
 Licence. 
 
 3. He may prove that the Plaintiff's father was impo- 
 tent, and so he of course a Bastard, (q] 
 
 4. He may prove a sentence of Divorce dissolving the 
 
 (n) 1 Esp. Dig. N. P. 495. (o) Bull. N. P. 1 12. 
 
 00 Vid. Dig. 49 T, (g) 2 Str, 940.
 
 CHAP. IX.] the Action of Ejectment. 219 
 
 marriage which is done by a Copy of the Proceedings 
 in the Spiritual Court, which, while unrepealed, is conclu- 
 sive.(r) 
 
 5. He may show, that the Plaintiff" was born more than 
 nine months after his father's death.(^) 
 
 It will, after consideration of these general heads, be 
 proper to consider the Evidence in Ejectment where a 
 Fine or Recovery has taken place, as the operation of them 
 may occur in all the preceding cases. (t) 
 
 If a l>me has been levied of the lands, for which an 
 Ejectment is brought, the Lessor of the Plaintiff should, 
 prior to his bringing the Ejectment, make an actual entry, 
 on the lands, or cause one to be made in his name, and 
 claim the possession. Of this entry Evidence must be 
 given at the Trial : and though it is not required to be 
 done, unless there has been Fine with Proclamations, it is 
 always advisable.(w) 
 
 A Fine, or Recovery, is generally set up by the De- 
 fendant in bar of the Plaintiff 's right ; and when valid 
 is conclusive, unless the party comes within some of the 
 exceptions which afford to the Plaintiff an answer to the 
 effect of the Fine or Recovery. 
 
 The Evidence necessary in the case of a Fine is given : 
 1. By the production of Chirograph of the Fine. This 
 is made out by Chirographer of the Court of Common 
 
 (r) Carth. 225. () Bull. N. P. 414. 
 
 ((} Esp. Dig. 459. 4 H. 7, ch. 20. () 9 East. 19,
 
 Of the Evidence in [HAP. IX. 
 
 Pleas,(;r) and is Evidence of itself : but if it is a Fine 
 vvhh Proclamations, it is not sufficient proof of the Pro- 
 clamations that they are indorsed on the Chirograph :(z/) 
 they must be proved by a Witness who examined them 
 with the Roll, and be thereby proved to have taken place. 
 2. In addition to the Fine it is necessary to have Evi- 
 dence at the Trial to show, that the Person, by whom the 
 Fine was levied, was in possession of the land when he 
 did so levy it \(z] for otherwise the Fine will be of no 
 avail : but proof of payment of rent to the Cognizor will 
 be sufficient : so there may be other Evidence ; such as 
 proof of actual occupation or enjoyment. 
 
 If a recovery is set up, it is given in Evidence by pro* 
 duction of an examined copy of it. 
 
 If the Recovery was suffered by a Tenant in Tail, that 
 is sufficient : but if, at the time of the Recovery suffered, 
 there was a Tenant for life, in which case a surrender 
 of his Estate is necessary to give validity to the Recovery, 
 that surrender in case of a modern Recovery, must be 
 proved to have taken place.(a) 
 
 But after twenty years' possession under a Recovery, 
 (b) the title of a Purchaser is declared to be valid, on 
 proof of the Deed making a Tenant to the Prascipe, and 
 declaring the uses. 
 
 6. The question often arises in trial of Ejectments, 
 
 (*) Gilb. Ev. 21. (y) Bull. N. P. 230. 3 Taunt. 166, 
 
 (z) 1 1 East. 495. Cowp. 621. (a) Stra, 1119. 2 Burr. 1065. 
 (d) Vid.P/ea. Stat. 14 Geo. 2. c. 20.
 
 CHAP. IX.] the Action of Ejectment. 221 
 
 as to whether lands were parcel or not parcel, or of one 
 parish or another. 
 
 In these an old Terrier of a Manor, ecclesiastical, or 
 temporal, may be given in Evidence, (c) 
 
 7. If the Ejectment is by one Tenant in Common 
 against another, to recover his part of the Premises,(rf) 
 the Plaintiff must show that the Defendant claims the 
 whole Estate, and refuses to admit him to any part, 
 which will be sufficient :(<?) but it will not be sufficient to 
 show that the Defendant took all the profits ; the Plaintiff 
 should, therefore, always be prepared with proof of his 
 demand, of his part, made on the other Tenant in com- 
 mon. 
 
 8. If an Ejectment is brought for Tithes, or for a Rec- 
 tory. 
 
 The Lessor of the Plaintiff must prove that he was Ad- 
 mitted, instituted, and inducted into the Rectory, (f) had 
 read and subscribed the thirty-nine articles, and declared 
 his assent and consent to every thing contained in the 
 Book of Common Prayer. 
 
 Institution alone is not sufficient ; and in fact it is right, 
 in every case, to prove presentation by the Patron to the 
 Rectory, (g) 
 
 (c) Bull. N. P. 248. (d) 1 Esp. Dig. N. P. 442. 
 
 (<r) 11 East. 95. (/) 1 Sid. 220. 
 
 (g) 1 Vent. 14. 1 Sid. 423.
 
 222 Of Evidence in [CHAP. IX. 
 
 The Letters of Presentation are addressed to the Bishop 
 of the Diocese, and are there to be found. 
 
 The admission, induction, and taking possession of the 
 Living ; as that is done in the Church, the facts above re- 
 quired are proved either by the Clerk of the Parish, some 
 of the Parishoners, or any Clergyman who might have 
 been assistant at the ceremony. 
 
 But the mere fact of taking the Tithes is clearly not 
 sufficient :(h) and an entry on the Glebe should be 
 proved. 
 
 It is always necessary, at the Trial of an Ejectment, to 
 be prepared with proof that the Defendant was in posses- 
 sion of the Premises for which the action is brought. 
 This may be done by proof of actual enjoyment ; or, if let, 
 by calling the Tenant who paid rent to the Defendant. 
 
 (A) Latch. 62.
 
 - 
 
 t 
 
 the Action for Slander. 223 
 
 CHAPTER X. 
 
 OF SETTLING EVIDENCE IN THE ACTION OF SLANDER. 
 
 1. A HE Plaintiff in this Action, if for words, is bound 
 to prove the words laid in his Declaration. This must 
 be by some witness who heard the Defendant speak 
 them ; and if they are of ambiguous meaning, he must 
 also prove that he understood them in the slanderous 
 meaning imputed to them. (a) 
 
 2. If the Action is for a Libel, or written Slander, the 
 Plaintiff must produce the Letter, or Publication, in which 
 the Slander is contained ; but if it is a Letter, or Pamph- 
 let, he must prove the publication ; that is, that the Let- 
 ter, or Pamphlet, was sent to be copied by, or shown to, or 
 read by, a third Person. A Newspaper, from its nature, 
 implies publication. 
 
 But though the Plaintiff must prove the words, he is not 
 bound to prove them precisely, or in the very terms they 
 are laid in the Declaration; (b) it is sufficient to prove that 
 
 (a) 2 Esp, Dig. N. P. 23. (A) Bull. N. P. 5.
 
 224 Of the Evidence in [CHAP. X. 
 
 they are substantially the same in point of sense and man- 
 ner of speaking. 
 
 Therefore, if the words are laid in one Person, and 
 proved to be spoken of in another, as if laid, "He is a 
 Thief," and these proved are " You are a Thief," 
 that Evidence will not support the Declaration ; for the 
 words are substantially different spoken of, or to, a Per- 
 son.^) 
 
 So if the words are laid positively ; as " A. B. cannot 
 pay his labourers," and the Evidence is, that they were 
 spoken interrogatively, " Have you heard that A. B. can- 
 not pay his labourers ?" that will not support the Declara- 
 tion, for their import is different ; in one sense they as- 
 sert matters as a fact ; in the other, they only allude to a 
 report. 
 
 3. Where words are spoken, or a Libel written, of a 
 Person in any Profession, Business, or Situation, and 
 which are actionable only as alluding to such Profession, 
 Business, or Situation ; that the Plaintiff is a Member, or 
 belongs to them, must be proved, as laid in the Declara- 
 tion. 
 
 As if a Physician was to bring an Action for calling 
 him a Quack, he would be bound to prove a Diploma 
 from the College of Physicians allowing him to practise, 
 or a regular degree of Doctor of Physic from some of the 
 Universities ; but, in that case, the Seal of the University 
 
 (c) Bull. N. P. 5.
 
 CHAP. X.] the Action for Slander. ' 225 
 
 or College granting the Degree or Diploma ought to be ' 
 proved.(f/) 
 
 But, in the case of an Attorney, it is sufficient to prove 
 his having conducted suits, and practised as such.(e) 
 
 4. Where words are actionable only as spoken of a 
 Person in a particular character or situation or alluding 
 to any particular transaction ; as, for example, if there 
 was a conversation or colloquium respecting the circum- 
 stances of any Person, which, under particular circum- 
 stances, may be actionable or not ; the colloquium must be 
 proved as introductory of the Slander. This must be 
 done by a witness who was present and heard it.(/*) 
 
 5. The Plaintiff cannot go into Evidence of any special 
 damage arising from the Slander, unless he has laid it in 
 his Declaration ; and then he is confined to that only ;(g) 
 as, for example, if the Plaintiff laid his special damage to 
 be the loss of the custom of T. S., which in the language 
 of the Declaration is, " whereby he lost the custom of T. 
 S. and of divers other good and worthy subjects" the Evi- 
 dence would be confined to the damage from the loss of 
 the custom of T. S. only, and the Plaintiff could not give 
 Evidence of the loss of any other.(^) 
 
 6. Where words are actionable by reason of some spe- 
 cial damage arising from them, but are not so of them- 
 
 (</) 8 Term Rep. 308. 
 
 (<?) 4 Term Rep. 366. 2 Esp. Dig. N. P. 21. 
 (/) 2 Esp. Dig. N. P. 24. 
 ($) 2 Ld. Raym. 1007. 1 Stra. 665. 
 (//) 2 Esp. Dig. N. P. 23. 1 Stra. 666. 
 
 Ff
 
 226 Of the Evidence in [CHAP. X' 
 
 selves ; as to say of an unmarried woman, " She had a 
 Bastard," which words are not of themselves actionable ; 
 but if the Declaration went on to state " by which T. S. 
 who would have married her, refused to do so,'' the 
 Plaintiff must prove the very special damage laid, or he 
 will be non-suited ; for it is that damage only which will 
 sustain the Action ; and, according to the preceding Rule, 
 the Plaintiff must prove that T. S. refused to marry her, 
 and cannot be admitted to prove that any other Person re- 
 fused to marry her.(?) 
 
 7. Though the Declaration lays the speaking of the 
 words on a particular day, the Plaintiff may give Evi- 
 dence of the same words, or of the same import, spoken 
 by the Defendant at other times : but he cannot give 
 Evidence of other actionable words spoken by him at 
 other times, (Xr) So, in the case of a Libel, the Plaintiff 
 cannot give Evidence of other Libels published of him 
 by the Defendant, unless they refer to the Libel stated 
 in the Declaration, in which case he may. 
 
 8. As the most general case of Libel is for publica- 
 tion in the Newspaper, the Evidence to fix the Pub- 
 lisher or Printer is regulated by Stat. 38 Geo. III. ch. 71. 
 quod vide.(l) 
 
 9. Where the initials of the name only are used, or 
 there is any doubt of the meaning of the words, the Plain- 
 tiff must call witnesses to prove that he was the Person 
 designated, or that the words used applied to him, and 
 that the witnesses so understood them. 
 
 (i) 2 Ld. Raym. 1007. (*) 2 Campb. 72. 
 
 (0 2 Esp. Dig. 35.
 
 CHAP. X.] the Action for Slander. 227 
 
 Of the Evidence by the Defendant. 
 
 1. The Defendant may give in Evidence, that the 
 words, which he spoke, or wrote in the imputed Libel, are 
 true : but this is only admissible in Evidence, where the 
 Defendant has pleaded that they are so. 
 
 2. The General Issue in Slander is, Not Guilty. This 
 puts the Plaintiff on proof of the words laid : but, as far as 
 respects the Defendant, it is not a mere denial that he 
 spoke the words, but that he spoke them not slanderous- 
 ly : for though the words spoken may be actionable as 
 written or spoken, the Defendant may give Evidence that 
 they were not spoken in the actionable and slanderous 
 sense imputed to them, but with a different import. This 
 is done by the Defendant calling witnesses to speak to the 
 subject of the conversation when they were spoken, or 
 the manner in which they were applied ; as if the conver- 
 sation was respecting the Plaintiff's having killed Game, 
 and the Defendant was to say, " He is a murderer," 
 meaning to apply that term to the quantity the Plaintiff 
 had killed, the words would in that case not be actionable. 
 
 3* So he may prove, that he used the words as Counsel 
 in a cause, applicable to the case, (m) or that he spoke or 
 wrote them in confidence ; as if on inquiry of the De- 
 fendant as to the solvency of a Person in trade, or of the 
 character of a Servant, he was to say, that he thought the 
 former in very doubtful circumstances, or the latter a ser- 
 vant addicted to dishonesty or drunkenness, meaning to 
 give a fair and honest caution to the Person inquiring : 
 
 (m) CVo. Jac. 91.
 
 228 Of the Evidence in [CHAP. X. 
 
 Evidence that the words were so spoken or written would 
 render the words not actionable. These facts are proved 
 by witnesses, who are allowed in such cases, (though not 
 generally) to speak from opinion, as to what object and 
 with what intention they were spoken. 
 
 4. In case of Libel, the Defendant under the General 
 Issue may give in Evidence, in mitigation of damages, 
 that the Plaintiff was, before the publication, suspected of 
 being guilty of the crimes imputed to him in it. But this 
 is only allowable where the General Issue is pleaded.(ra) 
 
 () 2 Esp. Dig. 28. 2 Campb. 277. 2 Mau. & Selw. 284.
 
 the Action for Malicious Prosecution, fcfc. 229 
 
 CHAPTER XL 
 
 OF SETTLING THE EVIDENCE IN THE ACTION FOR 
 MALICIOUS PROSECUTION. 
 
 JL HE settling of Evidence for the Plaintiff in this case is 
 best done, by attending to a few general rules applicable 
 to all cases. 
 
 1. It is laid down as a general rule in this Action, that 
 to entitle the Plaintiff to recover in it, he must show the 
 Proceedings instituted against him by Defendant, and 
 prove that they were groundless ; that is, were instituted 
 without any probable cause, and proceeded from malice ; 
 and the Plaintiff must establish both by Evidence. + 
 
 The Plaintiff, therefore, in this Action, must first give 
 in Evidence the Proceedings themselves which the De- 
 fendant issued against him ; as if the Plaintiff declares 
 that the Defendant procured him to be taken into custody 
 under a Warrant granted by a Justice of Peace on his in- 
 formation, the information must be produced : this is 
 done by subpoenaing the Justice of Peace, or his Clerk, 
 with a duces tecum of the original information, and proof 
 by them that it was made and sworn to by the Defend- 
 ant ; and then the Warrant granted on it, which is either 
 in the hands of the Constable or Justice, must be produc- 
 ed. The arrest and detention of the Plaintiff under it
 
 230 Of the Evidence in the [CHAP. XI. 
 
 must be next given in Evidence, and the discharge by 
 the Justice. (a) 
 
 2. If the Prosecution was by Indictment, the Plaintiff 
 must give in Evidence a copy of the Indictment and Ac- 
 quittal, examined with the original, either in the King's 
 Bench or Quarter Sessions ; or the original Proceedings 
 may be produced by the Officer of the Court where the 
 Indictment was preferred. But if the Indictment was for 
 Felony, as no Action will lie in that case if the Defendant 
 has been acquitted, unless the Court grant a copy of 
 the Record and Acquittal, Evidence must be given 
 to that effect, and the leave be proved :(6) in which 
 case there should be an order from the Attorney General 
 to the Officer of the Court, to produce the Record of Ac- 
 quittal and the order of the Court. The copy of the In- 
 dictment, if produced, must be proved by a witness who 
 examined it with the original, and then Evidence be given 
 of the Trial and Acquittal of the Defendant, if the Record 
 is not sufficient ; which .it should seem to be. 
 
 3. If the Action is for a malicious arrest, either where 
 there was nothing due by Plaintiff to Defendant, or the 
 arrest was for a much larger sum than was really due, if 
 the Plaintiff states that he was held to Bail for a certain 
 sum, by virtue of an Affidavit made by the Defendant, he 
 must produce an examined copy of the Affidavit made 
 by the Defendant to hold him to Bail, or the original Affi- 
 davit, and prove the hand-writing of Defendant subscrib- 
 ed to it.(c) But as that averment is now usually omitted, 
 
 (a) 2 Esp. Dig. N. P. 29. (d) 14 East. 302. 
 
 (c) Per Buller, J. 2 Esp. Dig. N. P. 38. Bull. N, P, 14.
 
 CHAP. XL] Action for malicious Prosecution. 231 
 
 and the arrest stated generally, the Writ, with an Indorse- 
 ment on it, to hold to Bail for the sum mentioned, must 
 be produced, and k will be sufficient Evidence. The 
 Plaintiff must then prove an actual arrest at the Defendant's 
 Suit, which is done by the Officer of the Sheriff to whom 
 the Writ was directed ; he must then prove that the Suit, 
 in which he was so arrested, was terminated, either by a 
 Judgment of non pros, or verdict, or discontinuance ; so 
 that it should appear that the Plaintiff had no cause of 
 Action, (d) 
 
 4. In all the cases now put, the Plaintiff must prove that 
 the Proceedings were groundless, and that known to the 
 Defendant ;(e) as, ex.gr. if he had been taken on a charge 
 made before a Justice of Peace : he may prove that he 
 was not present when the imputed offence was committed, 
 or was in another place, so that he would not be guilty, 
 and that the Defendant knew it : in like manner, if in- 
 dicted, he may give similar Evidence ; and if he was ar- 
 rested for more than was due, he may show a settlement 
 of accounts before the arrest made, between him and De- 
 fendant, and a small balance then struck as only due, not- 
 withstanding which, Defendant had arrested him for a 
 large sum, 
 
 These are cases where there have been Proceedings by 
 the Defendant without any probable cause ; in which case 
 malice will be inferred : but the Plaintiff, when not in pos- 
 session of such Evidence, may give Evidence of actual 
 malice ; such as declarations made by him that he would 
 
 (d) 2 Esp. Dig. N. P. 38. 1 B. & P. 281. 
 0) 2 Esp. Dig. N. P. 30.
 
 232 Of the Evidence in the [CnAp. XI. 
 
 ruin the Plaintiff. And Evidence of actual malice being 
 admissible to any extent, it is always adviseable to have 
 it ;(/") such as advertisements put into the Newspaper, 
 mentioning, e. g. without any apparent reason for it, that 
 a true Bill of Indictment was found against the Plaintiff. 
 
 These matters of Evidence it is impossible to specify ; 
 and the others depend on the averments in the Declara- 
 tion : such as being put to great expense : the Plaintiff 
 should be, therefore, prepared with proof of the amount.- 
 
 5. But, in every case, the Plaintiff must prove the Pro- 
 ceedings, which the Defendant instituted against him, to be 
 at an end.( e -) As in the case first put, he must show that 
 the Justice dismissed the complaint ; in the second, his 
 Acquittal ; and, in the third, that the Suit commenced by 
 the arrest is at end, either by a verdict, non pros, or dis- 
 continuance, in which case of a vefdict or non pros, he 
 must have an examined copy of the Judgment Roll ; in 
 the second, he must produce the. Rule. And all these 
 proceedings must be proved by written Evidence, and 
 cannot be dispensed with.(/^) 
 
 6. In preparing and settling the Evidence for Trial in 
 this Action, the greatest attention must be observed in 
 comparing the -written Evidence with the Declaration, and 
 examining the parol by the averments to be proved, as 
 any variance in that respect is fatal. 
 
 Thus, if the Declaration states that the Plaintiff had 
 
 (/) l Stra. 691. 
 
 fe) 2 Esp. Dig. N. P. 31. Bull. N. P. 13. Salk. 12. Dougl. 
 205. 
 (A) 2 Esp. N. P. C. 27. MSS, Cas.
 
 CHAP. XI.] Action for malicious Prosecution. 233 
 
 been maliciously arrested, and held to Bail on a Writ re- 
 turnable in Easter Term, and the Writ when produced 
 appeared to be of Trinity. If the Declaration states, 
 that the Plaintiff had been maliciously taken into custody 
 under a Warrant for Felony, and the Warrant when pro- 
 duced was for a Misdemeanor, or on suspicion, the Evi- 
 dence would vary from the Declaration, and the Plaintiff 
 would be non-suited. (/) 
 
 7. The objects of special damage are matters stated in 
 the Declaration, and vary with the case. Thus, in the 
 case of a malicious arrest, if the Plaintiff averred that he 
 w r as in trade, and in consequence of it having got abroad 
 that he had been arrested, that other Creditors had arrested 
 him, who would not have done so but on account of their 
 belief that his credit was bad, concluding it to be so by 
 reason of his arrest, the Persons who so arrested him 
 must be called as witnesses to prove not the arrest of the 
 Plaintiff only, but their motives for doing so. But in 
 every case the Plaintiff must have been put to certain ex- 
 penses ; these are always laid in the Declaration, and are 
 proved at the Trial by witnesses. 
 
 Of the Evidence for the Plaintiff in an Action for a Con- 
 spiracy. 
 
 This Action, as to its object, differs nothing from the 
 Action for malicious Prosecution, except that more per- 
 sons than one are implicated in it ; and the same Evidence 
 is required. If the Action is for a Conspiracy, two at 
 
 (i) 2 Esp. Dig. N. P. 35. 4 Term Rep. 590. 
 Gg
 
 234 Of the Evidence in [CHAP. XL 
 
 least must be found Guilty ; but if the Action is Case in 
 the nature qf a Conspiracy, a verdict may pass against one 
 only.(A-) 
 
 2. Of the Evidence for the Dejendant.(f) 
 
 The General Issue in this Action is Not Guilty ; and 
 under it the Defendant may go into any Evidence to jus- 
 tify the proceedings for which the Action has been brought 
 against him. He may show a probable cause, which in 
 all cases is sufficient. As if the Action be for suing out 
 a Warrant, and taking Plaintiff into custody for a Felony, 
 Defendant may give in Evidence a Felony committed ; 
 that the Defendant was seen near the place at the time, 
 under suspicious circumstances : this is matter of parol 
 Evidence. In fact, the Defendant may give every thing 
 in Evidence which tends to his exculpation, and disproves 
 malice ; and proof is not required beyond fair presump- 
 tion. Therefore, the Jury finding a true Bill against the 
 Plaintiif, though he was afterwards acquitted, was held 
 to be proof of a probable cause. (m) 
 
 * * ' 
 
 (*) 2 Wils. 200. (7) 2'Esp. N. P. C. 38. 
 
 (m) 2 Esp. Dig. N. P. 40.
 
 CHAP. XII.] the Action of Trover. 235 
 
 CHAPTER Xlf. 
 
 OF THE EVIDENCE FOR THE PLAINTIFF IN THE ACTION 
 OF TROVER. 
 
 rn 
 
 A HE leading points of Evidence indispensable to be 
 
 proved by the Plaintiff in the Action of Trover are, 
 1. A property in himself in the things for which the Ac- 
 tion is brought. And, 2. That the Defendant converted 
 them to his own use, or refused to deliver them to the 
 Plaintiff after demand. An absolute property in the Goods 
 is not indispensable ; a special property will enable the 
 Person having it, to maintain the Action against a 
 stranger. 
 
 In this Action more questions of property are tried than 
 in any other, in cases where Parties became possessed of 
 property under particular circumstances : such as by sale 
 without delivery ; by sale and imperfect delivery where 
 the Goods are in transitu ; by sale of a Factor or Agent ; 
 by sale of the Sheriff; by pledging, &c. (a) 
 
 In settling the Evidence for the Plaintiff, each of these 
 cases must be attended to. 
 
 'a) -2 Esp. Dig. N. P. 58. 1 Selk. 15,
 
 236 Of the Evidence in [CHAP. XII. 
 
 * 
 
 1. In the Case of a Sale -without Delivery. 
 
 If a man sell goods to another who pays for them, and 
 he afterwards refuses to deliver them upon demand : upon 
 giving Evidence, 1. Of the sale and price. 2. Proving 
 that he paid for them ; and, lastly, a demand from the 
 Defendant to have them delivered to him ; he will be en- 
 titled to a verdict for their value at Nisi Prius. 
 
 And a sale by a Factor or Agent, who is authorised to 
 sell, equally binds the Principal, and subjects him to an 
 Action in the same way ; but the Factor or Agent should 
 be called to prove his authority for the sale on the De- 
 fendant's account. 
 
 The Evidence which the Defendant may give in reply 
 in. these cases, is such as shews, that there was fraud in 
 the purchase, or good ground for rescinding the contract. 
 Such as the purchaser having stopped payment before the 
 Goods reached him, having given bad Bills which had 
 been refused acceptance. This is called a stopping of the 
 Goods in tmnsitu.(b) In this case, the Defendant is 
 bound to prove the grounds of his stopping his Goods 
 before delivery. Such as a Docket having been struck 
 against the Plaintiff, the Buyer, or against the Persons 
 whose names are on the Bill given in payment for them ; 
 that he or they were uncertificated Bankrupts, or the like. 
 
 2. If the Goods have been sent to a Factor to be sold, 
 and he in place of selling has pledged them, (c) the Owner 
 may recover them at once from the person who has got 
 
 (6) 2 Esp. Dig. N. P, 40. (c) 2 Esp. Dig. N. P. 41.
 
 C'H AP. XII.] the 'Action cf Trover. 237 
 
 them ; for such a pledge does not change the property ; 
 and, to prove the transaction, the Plaintiff' may call as wit- 
 nesses- either the Factor himself, or the person with whom 
 he pledged them, (d) 
 
 3. If a man buys Goods which have been stolen, the 
 Owner may recover them back in this Action from the 
 Buyer, provided he has prosecuted the Felon to convic- 
 tion, (e) 
 
 \Vhere Trover is brought to recover Goods under such 
 circumstances, the Plaintiff must prove, 1. That the 
 Goods were his, and were stolen from him. 2. He must 
 produce an examined copy of the Record of the convic- 
 tion of the Felon for stealing the Goods claimed: (f) this 
 is done by a witness who examined the copy produced 
 with the original, or it may itself be produced by the Offi- 
 cer. He may, lastly, show that the Defendant was in 
 possession of them, and that he demanded their restitution. 
 
 The Plaintiff must prove the Defendant to have been in 
 possession of the Goods when he demanded them ; for if 
 he had parted with them before they were demanded, he 
 would not be liable, (g) 
 
 So it must appear from the copy of the Record pro- 
 duced, that the prosecution was for Felony ; (h) for if it 
 appears that it was for Fraud only, as by obtaining them 
 by false pretences, the Owner cannot recover them. 
 
 (rf) 5 Term Rep. 604. 6 East. 17. 7 East. 5. 
 
 (e) 2 Inst. 714. 2 Esp. Dig. N. P. 42. 
 
 (/) 2 Term Rep. 750. (#) 2 Term Rep. 750. 
 
 (A) 5 Term Rep, 175.
 
 238 Of the Evidence in [CHAP. XII. 
 
 4. In this form, of Action, (z) questions are continually 
 occurring as to Bills of Sale given as security, or supposed 
 security for Debts : Assignments made for the benefit of 
 Creditors, or such conveyances as are intended to divest 
 the property in Goods out of the Party making them, and 
 which are sought by bondf.de Creditors to be set aside on 
 the ground of Fraud, (k) 
 
 A Debtor may give a preference to a bond fide Credi- 
 tor or Creditors, (/) and if he under such circumstances 
 has taken a Bill of Sale, Assignment, or Security by War-^ 
 rant of Attorney voluntarily given, may stand on his 
 rights, on giving in Evidence that the debt for which the 
 Bill of Sale, Assignment, or Warrant of Attorney was 
 given, was actually and bond fide due to him, and the se- 
 curity given to protect it. 2. He must next show, that 
 having so obtained that security from his Debtor, that he 
 immediately proceeded to give effect to it, (m) by taking 
 possession of the property passed by the Bill of Sale, or 
 other Security, and proceeding to dispose of it in due time, 
 or by entering up Judgment on the Warrant of Attorney 
 immediately. 
 
 This Evidence is given by showing how the debt was 
 contracted ; as by Bond, Bill, Note, or for Goods sold. 
 The fact of entering and taking possession may be proved 
 by the person put into possession, and the signing of the 
 Judgment and Execution as before -mentioned in similar 
 cases. 
 
 (i) 2 Esp. Dig. N. P. 43. (A-) Statute 13 Eliz. Cl. 5. 
 
 (/) 5 Term Rep. 236. (m) s Term Rep. 420,
 
 C H A p . XI I.] the Action of Trover. 23 9 
 
 To give effect to these securities, if the validity of them 
 is impeached, (n) the Party who relies on them, whether 
 he is Plaintiff or Defendant, must be prepared to prove an 
 actual and bondjide taking possession of the effects under 
 the Bill of Sale or Assignment ; (o) for which purpose the 
 best witness is the person put into actual possession, and 
 he must prove, that from the time of his taking posses- 
 sion the original Owner was suffered to exercise no act of 
 Ownership whatever ; for if he did, as it would be incom- 
 patible with the supposed assignment of all his property, 
 it would defeat it. 
 
 So it is always adviseable that this person so put into 
 possession should be a stranger ; for to give possession to 
 one of the Party's own family, as to his Son, for example, 
 so that things would appear to go on as before, it is a very 
 suspicious circumstance. 
 
 Of the Evidence for the Defendant in Cases of Bills of 
 Sale, or such Securities. 
 
 Where Fraud is imputed in the possession of Goods, 
 as set up to defeat the claims of bond fide Creditors, on 
 the ground that they really belong to the person who has 
 parted with the possession of them, the Evidence which 
 the Defendant may bring forward to meet it must be 
 attended to. 
 
 1. The Defendant may show a settlement made before 
 
 (TO) 2 Esp. Dig. N. P. 43. 
 
 (o) Twyne's Case, 3 Co. 80. 1 Esp. N. P. C. 205. 2 Term Rep. 
 594* 9 Term Rep. 587.
 
 240 Of the Evidence in [CHAP. XIP 
 
 marriage of all his household and other effects, (p) and 
 that he has continued in consequence in possession ; but 
 that the effects were really at the time conveyed to the 
 Trustees, to whom, as Trustees, they belong. To esta- 
 blish this he must produce his settlement, and prove the 
 , execution of it by the subscribing witness. He should 
 also prove the time that the marriage took place ; if the 
 settlement was before marriage, it is a complete answer to 
 any supposed Fraud ; if it was after marriage, the De- 
 fendant must prove a portion paid in pursuance of prior 
 articles : for a voluntary settlement wanting that circum- 
 stance would be void as against Creditors, (g) 
 
 5. Questions respecting the property under Bankruptcy 
 occur in this Action more frequently than in any other. 
 The Evidence required in support of the Commission has 
 been treated of before in the Chapter of Assumpsit ; they 
 are necessary to be proved in all cases in which the As- 
 signees are Parties ; but the question as to what is, or is 
 not, to be taken to be property belonging to the Bankrupt's 
 Estate is here to be considered. 
 
 This question arises, for the most part, under the Sta- 
 tute 21 Jac. I. c. 19, (r) whereby Goods and Chattels 
 whereof the Bankrupt at the time of his Bankruptcy had 
 the possession, order, or disposition by consent and per- 
 mission of the true Owner, and hath taken on himself the 
 sole alteration and disposition as Owner, shall belong to 
 the Assignees, and be deemed part of the Bankrupt's 
 Estate. 
 
 (/O Cowp. 32. 2 Term Rep. 597. 
 
 (y) 2 Esp. Dig. N. P. 45. (r} 2 Esp. Dig. N. P. 72.
 
 CHAP. XII.] the Action of Trover. 241 
 
 This Action is, as far as respects the Statute, to try 
 how far thp Assignees are entitled to Goods and Chattels 
 which actually belong to other Persons, ($) but over which 
 the Bankrupt having exercised a right of disposition, they 
 are deemed to be his, and to pass to the Assignees. 
 
 When, therefore, the question arises between the As- 
 signees and the real Owners of the property to which the 
 former claimed title, it is matter of Evidence with which 
 the Assignees must be prepared ; namely, what acts the 
 Bankrupt has done, apparently of Ownership, or how the 
 Goods have been under his care with an apparent power 
 of disposition : as if they made part of his Stock in Trade* 
 or were sold in the course of it ; that can be proved by 
 persons employed in his Shop or Warehouse, and clearly 
 binds the property. So if the Bankrupt had mortgaged 
 his Stock in Trade, and the Mortgagee had suffered him 
 to remain in possession, (t) and he becomes Bankrupt, 
 the Mortgagee has lost his title to it, by having suffered 
 the Bankrupt to keep the possession. 
 
 Of the Evidence for the Defendant in cases of Bankruptcy. 
 
 Questions of Evidence, under this head, are of much 
 importance to be considered, as affording a defence to the 
 claims of the Assignees ; by showing in Evidence that 
 the apparent possession of the Bankrupt is not such as the 
 Statute contemplates ; and, therefore, furnishes matter of 
 defence against them. 
 
 These matters of defence are several ; as 
 
 (s)9 East. 215. 1 Bos. Sc Pull.N. R. 67, 
 (0 1 Wils. 260. 
 
 H h
 
 242 Of the Evidence in [CHAP. XII. 
 
 1. The Defendant may show, (u) that although the 
 Goods claimed, made part of the Bankrupt's Stock in 
 Trade, that he was a Factor only, and had the Goods to 
 sell for the Owner, and whose property they were. In 
 this case, the Defendent must give in Evidence, and 
 prove the Goods to be his : that they were sent to him, 
 the Bankrupt, as a Factor in that way of trade, for sale 
 only. For that is not such an order or power of disposal 
 as the law contemplates. 
 
 2. He may show, that the Goods came to him in the 
 character of an Executor or Administrator ;(x) in that case, 
 he must give in Evidence the Probate of the Will, or let- 
 ters of Administration to the person deceased, whose 
 Goods he must prove those claimed by the Assignees to 
 have been. 
 
 3. He may give in Evidence,^) that the Goods were 
 lodged with him only for a temporary purpose, as to be 
 warehoused till they were shipped, by showing in Evi- 
 dence, by a witness who knew the fact to be that they 
 were so left with him for that purpose, (z) 
 
 4. That the Bankrupt had been employed on the 
 Goods with power only to work on them.(c) 
 
 2. Of the Evidence for the Plaintiff in Trover, as it res- 
 pects the Person. 
 
 It has been already observed ante 234, that a special 
 
 () 2 Esp. Dig. N. P. 77. 3 P. Wm. 185. 
 
 (#) I Atk. 158. (y) 2 Esp. Dig. N. P. 74. 
 
 (z) l Atk. 185. (c) 3 Term Rep.. 316.
 
 CHAP. XII.] the Action of Trover. 
 
 property in the Goods entitles the Plaintiff to maintain 
 Trover. The principal cases which occur are 
 
 1. A Carrier to whom Goods of others are entrusted 
 to be carried, (6) if they are tortiously taken from him, 
 may maintain this Action in his own name ; but he must 
 prove that he is a Carrier, or entrusted to carry the Goods 
 in question, and that they were taken while they were in 
 his custody. 
 
 2. The Sheriff who has taken Goods under a writ of 
 fieri facias,(c} if any person tortiously takes them away, 
 
 may have Trover for them. He must prove the Writ of 
 Ji. fa. directed to him, by an examined copy of it : the 
 making out of his Warrant to a particular Officer who 
 seized the Goods, and was in possession when the 
 Defendant either took them, or got possession of them, 
 and refused to deliver them after demand. 
 
 3. The Lord of the Manor may have Trover for an 
 Estray taken on his Manor ; and that, during the year and 
 day, against a stranger who has wrongfully possessed 
 himself of it, and refused to deliver it up. But the Plain- 
 tiff must show that he is Lord of the Manor, and that the 
 animal came on the Manor as an Estray ; that as such, it 
 had been taken and impounded, and was in his rightful 
 possession when taken. (d] 
 
 4. A Tenant of a House, let with any moveables be- 
 longing to it, if it is blown down during the term, and a 
 stranger takes away any of the moveables or timber which 
 
 () 2 Esp. Dig. N. P. 83. 1 Mod. 31. (c) 1 Lev. 282. 
 (d) Bull. X. P
 
 244 Of the Evidence in [CHAP. XII. 
 
 belong to the house, and refuses to redeliver them, may 
 maintain Trover for them, though the ultimate property 
 is in the Reversioner. But he must show, at the Trial, that 
 he was Tenant, and intitled to them ; by what means the 
 Defendant got possession of them ; and a demand on him 
 to restore them, and his refusal. 
 
 5, In the cases now put, the Plaintiff had a special pro- 
 perty in the things, but possession alone is good against a 
 mere stranger ; as- 
 
 A person who finds any thing by accident, acquires 
 thereby such a property in it by reason of the possession, 
 that if it is taken away from him by any one except the 
 Owner, he can maintain Trover, for he thereby acquires 
 a special property in it against all the world but the right- 
 ful Owner, (e) 
 
 So if a man even tortiously becomes possessed,(y) as 
 by having wrongfully cut property growing on a Com- 
 mon, yet he may maintain Trover for it against a stranger 
 who has taken it away ; and in these cases last put, the 
 Plaintiff may rely only on his having the possession : for 
 as against a stranger he is never called upon to prove 
 more than the possession of the Goods : it is yet always 
 adviseable to be prepared in such cases with Evidence of 
 the property, and to show how it was acquired. 
 
 6. Executors or Administrators may maintain this Ac- 
 tion for Goods taken and converted in the lifetime of the 
 Testator, (g) or in their own time. In which case, the 
 
 0) I Stra! 505. (/) 3 Wils. 332. 
 
 ^) 2 Esp. Dig. N. P. 83- Cro, El. 377. 1 Stra. 60.
 
 CHAP. XIL] the Action of Trover. 245 
 
 Plaintiff must prove that the Goods belonged to the Tes- 
 tator or Intestate ; that the Defendant wrongfully became 
 possessed of them ; that a demand was made of them by 
 the Testator in his lifetime, or by the Executor or Admin- 
 istrator after his death, and a refusal or non- deli very of 
 them. 
 
 7. Husband and Wife may join in this Action for Goods 
 which were the property of the Wife before marriage,(/z) 
 and before that time came to Defendant's possession, and 
 which he refused to redeliver. The Plaintiff in this case 
 must prove their marriage ; that the Goods belonged to 
 the Wife before marriage, and were in Defendant's pos- 
 session without any right to them being demanded, and 
 refused. 
 
 3. Of the general points of Evidence required in all cases 
 on the part of the Plaintiff. 
 
 
 
 It has been observed, ante, page 234, that the Plaintiff 
 is bound to prove. 
 
 1. Property, either actual or special. 
 
 Actual property is proved by Witnesses, who know the 
 things for which the Action is brought to have been the 
 Plaintiff's, as in Trover for a Horse, that the Plaintiff 
 bred him, or has had him long, and used or rode him. 
 This Evidence is rarely required, except where the pro- 
 perty is contested by the Defendant, as in the case just 
 mentioned, the Defendant may claim the Horse as his 
 
 (A) 2 Lev. 107. 1 Vent. 260.
 
 246 Of the Evidence in [C HA p. XII. 
 
 own, and give Evidence by marks, or otherwise, by Wit- 
 nesses, that the Horse was his : in such case the Action 
 turns solely on the property, as it is question of Evidence 
 for the jury. 
 
 Evidence as to special property has been already men- 
 tioned. 
 
 2. The Plaintiff must show that the goods were, when 
 taken, in his actual possession, or had been so previous to 
 it ; and that at the time, as well as when demanded, he 
 had a right of actual possession ; for a right of future pos- 
 session will not support the Action. 
 
 Thus, if the Plaintiff 's Horse had strayed and got into 
 Defendant's possession, who refused to deliver him, the 
 Plaintiff having an immediate right to the possession of 
 his horse, may maintain Trover for him, and then by 
 giving Evidence at the Trial, that he was possessed of the 
 horse before he strayed : that the horse was found in De- 
 fendant's possession, who refused to deliver him up on 
 demand, the Plaintiff will have a verdict. 
 
 But if the Plaintiff had hired out the horse to the De- 
 fendant for a month, e. g. to do certain work, and before 
 the month expired he demanded the horse, and being re- 
 fused, brought an Action of Trover : he would not reco- 
 ver, for he had no right to the present possession of him. 
 
 8. The Plaintiff must prove the Defendant to have been 
 in possession of the things for which the Action is brought 
 at the time they were demanded, or at some time previ- 
 ous to it ; all which may be done by a Witness, who saw
 
 CHAP. XII.] the Action of Trover. 247 
 
 them in Defendant's possession, or who knows of a pre- 
 vious delivery of them by the Plaintiff to the Defendant : 
 but the Plaintiff is not required to show how the Defend- 
 ant became possessed of them, as he might have taken 
 them tortiously ; and though he may have done so, yet 
 the Plaintiff may consider that he came by them lawfully, 
 or by finding, in the words of the Declaration, and pro- 
 ceed for the conversion, after demanding them. 
 
 4. The Plaintiff' should, in every case before the Action 
 brought,(i) make a demand of the Defendant to deliver to 
 him those things for which the Action is brought, or to 
 pay the value of them, or make satisfaction. (A*) This may 
 be either in writing, or by a Witness duly authorized by 
 the Plaintiff, or by the Plaintiff himself. If it was in 
 writing the Plaintiff should keep a copy of that delivered 
 to the Defendant,(/) and give notice to the Defendant to 
 produce at the Trial that served upon him ; and in case 
 he does not, he must prove by a Witness that the copy 
 produced of the Demand was compared by him, and is a 
 copy of that served on the Defendant. 
 
 If the demand was made by a Person authorized by the 
 Plaintiff to make it, that Person should be called to prove 
 it. 
 
 If it was made by the Plaintiff himself, a Witness 
 should be called at the Trial, who was present, and heard 
 the Plaintiff make the demand. 
 
 But though I have laid down the Rule thus generally, 
 
 (0 2 H. Black. 135. (*) 2 Esp. Dig. N. P. 31. 
 
 (/)2 Esp. Dig. N. P. 22.
 
 248 Of the Evidence in [CHAP. XIL 
 
 and advise in every case a demand to be made, if in fact 
 the Plaintiff can prove an actual tortious taking,(w) or an 
 actual conversion of the goods, such as a sale of them to a 
 third person, that Evidence will be sufficient without proof 
 of any demand. But there is more facility in proving a 
 demand, than proving an actual conversion. 
 
 2. It is also laid down, ante 234, as a settled principle 
 of the Action of Trover, that the Plaintiff must prove a 
 conversion by the Defendant of the things for which the 
 Action is brought ; and the words of the Declaration are 
 " converted them to his own use :" and all the books 
 speak of a demand and refusal as Evidence of that con- 
 version ; this requires explanation in settling the Evidence 
 for the Plaintiff. 
 
 1. It is not necessary for the Plaintiff to show a refusal 
 in terms by the Defendant, to deliver the goods. It is 
 sufficient to prove a demand and an omission by the De- 
 fendant to deliver them before Action brought. An ab- 
 solute refusal by the Defendant to deliver them is fully 
 sufficient Evidence of a conversion ; but the Defendant 
 may assign a sufficient reason for not doing it,(w) which 
 will negative the conversion, as, ex. gr. that he keeps the 
 goods for the right owner, whom he does not know the 
 Plaintiff to be. So if he claims a lien on them, the Plain- 
 tiff should in such case, therefore, go further, and prove 
 that the Defendant absolutely disputed his right to them. 
 
 It is not necessary for the Plaintiff to show that he has 
 
 (TH) Sid. 254. 
 
 () Esp. N. P. C. 83, 3 Campb. 2 15, 2 Esp. Dig. N. P. 96.
 
 CHAP. XII.] the Action of Trover. 249 
 
 absolutely lost his goods, and which the Defendant has 
 taken :(o) the Defendant by wrongfully taking the goods 
 for a time , or partially using them, is guilty of a conver- 
 sion pro tanto ; as, ex. gr. if a man takes another's horse, 
 and rides him, though he afterwards brings him back, the 
 owner may still maintain Trover, on proving at the Trial 
 such taking, and though he will not recover the value of 
 the horse, he will recover damages for the use of him.(/>) 
 
 If a Person (q) entrusted to carry a cask of liquor, draws 
 off part, and fills it up with water, it is a conversion of the 
 whole, and may be so declared; and, being proved, the 
 whole value of the cask may be recovered. 
 
 So a delivery at a place, or to a person, contrary to the 
 owner's orders, is a conversion in the Person who has 
 done it.(r) 
 
 Of the general Evidence in this Diction on the part of the 
 Defendant. 
 
 The Evidence on the part of the Defendant, is either a 
 denial or disproval of the Plaintiff's right to maintain the 
 action, or the assertion of a right in himself to retain the 
 things for which the Action is brought. 
 
 The only Plea in Trover is Not guilty, under which the 
 Defendant may go into any defence he has. 
 
 1. The Defendant(-s) may show that though the pro- 
 Co) 2 Esp. Dig. N. P. 87. (A) Golds. 155. 
 (?) 1 Stra. 576. (r) 4 Term Rep. 460. 
 
 () 2 Esp. Dig. N. P. 82.
 
 250 Of the Evidence in [CHAP XII. 
 
 perty of the goods is in the Plaintiff, he had no right of 
 present possession. As, ex. gr. if a landlord had let a 
 house, ready furnished, for a year ;(?) and before the ex- 
 piration of the year brought Trover for the furniture, the 
 Action would not lie. 
 
 In that case, the Defendant should give in Evidence the 
 terms upon which he had the goods, and thereby show an 
 existing right of possession in himself. 
 
 2. The Defendant may dispute the property of the 
 Plaintiff in the goods.(w) 
 
 As if goods were condemned in the Exchequer,(o?) the 
 property is thereby completely divested out of the owner, 
 so that he can maintain no Action : in such case, mere- 
 fore, the Defendant must give in Evidence examined co- 
 pies of the proceedings and judgment in the Exchequer, 
 by which it will appear that the goods taken were those 
 for which the Action was brought, and that they were 
 condemned. 
 
 So where an Exchange is made of horses, ex. gr. and 
 possession given, neither party can maintain Trover for 
 his horse, for the property is completely changed by the 
 exchange and delivery: but both these facts must be 
 proved at the Trial. 
 
 3. The Defendant may show a property (y] in himself 
 in the thing sued for, as e. g. That he became possessed of 
 it by legal transfer, or by a sale in market overt. 
 
 (0 7 Term Rep. 9. () 7 Term Rep. 9. 
 
 (x\ Sir T. Ray. 336 (t/) 2 Esp. Dig. N. P. 84.
 
 CH A p. XII.] the Action of Trover. 25 1 
 
 As where a bank-note is lost, the owner may have Tro- 
 ver against the finder for it.(z) But if the finder had 
 passed it to another in the course of dealing, in that case 
 the latter would have obtained a clear title to it, and Tro- 
 ver could not be supported. But, in that case, the De- 
 fendant would be bound to show at the Trial how he 
 became possessed of it, and that he took it in the course 
 of business, or rather was not himself the finder of it. 
 
 So if a horse was stolen, (a) though selling him in mar- 
 ket overt, might change the property, if all the requisites 
 of statute 2 Ph. and M. ch. 7. were complied with, yet, if 
 sold by a false name, or not regularly booked, the property 
 is not changed, the sale not being regular in market overt. 
 
 3. The Defendant may justify the detention(6) of the 
 goods, that is, a refusal to deliver them to the rightful 
 owner, on the ground that he has a lien on them for a de- 
 mand of his own. 
 
 This lien being either in consequence of an express 
 contract between the parties, or as arising from the usage 
 of trade, if the Defendant relies on it, he must, in the first 
 place, establish by Evidence, the existence of a lien, ei- 
 ther by custom or contract, and, secondly, that they came 
 fairly into his possession in regular dealing, and lastly, that 
 he had a demand against the Plaintiff, to a certain extent, 
 which attaches on the Defendant's goods for which the 
 Action is brought, that is, as connected with the nature 
 of the demand, and therefore claims a right to retain them. 
 
 (z) 1 Salk. 126. (a) I Leon. 158. 
 
 (6) 2 Esp. Dig. N. P. 87.
 
 252 Of the Evidence in [CHAP. XII. 
 
 These matters are proved by Witnesses acquainted 
 with the facts : an agreement for a lien may be proved by 
 one Witness ; but the usage of trade or a particular busi- 
 ness should be proved by more than one, if possible, and 
 that by persons who have known it acted upon, and not 
 merely heard of it. 
 
 Liens have been recognized in the following busi- 
 nesses ; and as they have been so settled by- repeated 
 decisions, there is no necessity in such cases for the De- 
 fendant to bring general Evidence of liens arising from 
 such particular cases in these particular trades or busi- 
 nesses. The Defendant may rely on the decided usage, 
 but observing that in some there is a lien for a general 
 balance, in others not. 
 
 1. In the case of Factors, they have a lien for a general 
 balance, (c) 
 
 2. Bankers, for a general balance. (of) 
 
 3. Wharfingers, for a general balance.(c-) 
 
 4. Manufacturers of different descriptions for the work 
 done by themselves, as Dyers, Packers, Printers, for a 
 general balance. (/*) 
 
 5. Pawnbrokers, for the advance on the goods them- 
 selves.^) 
 
 (c) 2 Esp. Dig. N. P. 8T. 
 
 (d) 2 Burr. 936. Cowp. 251. 2 East. 221. 3 Term Rep. 783. 
 
 (e) 1 Esp. N. P. C. 66, 109. 9 East. 12. 
 
 (/) 4 Burr. 2214. 6 Term Rep. 14. 6 Atk. 627. 3 Mau. Sc Selw. 
 168. 
 () Pre. Ch.419. 2 Vern. 691. 1 Atk. 236.
 
 CHAP/ XII.] the Action of Trover. 253 
 
 6. Innkeepers, while the goods brought to their Inn 
 remain with them : if they suffer them to go away, the 
 lien is lost. (h) 
 
 7. Carriers, for the carriage of the particular goods car- 
 ried ; not for a general demand or balance, unless agree- 
 ment or usage is strictly and fully proved.(z) 
 
 7. An Attorney, on all deeds and papers delivered to 
 him by his Client in the course of business, or which have 
 so come to his hands. (A-) 
 
 8. Brokers, who have given their Acceptances for 
 Goods which they are afterwards to sell, have a lien on the 
 goods to the extent of what they agreed to advance. (/) 
 
 4. The Defendant, if he has rightfully come to the pos- 
 session of the Goods, may show that he was not guilty of 
 a conversion of them to his own use, which is necessary 
 to fix him in this Action. (m) 
 
 As if Goods are delivered to a Carrier to carry, and they 
 are lost or stolen ; if Trover is brought, the Carrier, on 
 giving in Evidence at the Trial, that the Goods were so 
 lost or stolen, the Plaintiff cannot have a verdict ; for the 
 Defendant was guilty of no conversion to his own use.(w) 
 
 5. The Defendant may show, in answer to the Plain- 
 
 (A) 3 Bulst. 268. Salk. 388. 
 
 (i) 2 Ld. Ray. 752. 6 East. 524. 7 East. 224. 
 
 (*) Doug. 226. 1 Mau. 8c Selw. 535.' 
 
 (/) 3 Esp. N. P. C. 182. Cm) 2 Esp. Dig. N. P. C. 86. 
 
 () 5 Burr. 2825.
 
 254 Of the Evidence in [CHAP. XII. 
 
 tiff's case, that the Goods for which the Action was 
 brought, were pawned with him.(o) 
 
 For this purpose he must give in Evidence that he ad- 
 vanced money to Plaintiff, prove the delivery of the goods 
 to him, on those terms, and that he was to detain the 
 Goods as a pledge till the money he had advanced on 
 them was repaid. 
 
 6. It is no defence for the Defendant to show that the 
 Goods did not come to his own use ; for if a servant, em- 
 ployed to receive Goods on his Master's account, dis- 
 poses of them wrongfully, whether with or without his 
 Master's orders, the latter will be liable in Trover for the 
 amount.(/>) 
 
 7. The Defendant may show, that he had a joint pro- 
 perty in the Goods, sought to be recovered in Trover ; as 
 that they were Tenants in common of them.(^) 
 
 As in the case of joint owners of a ship, which, if one 
 takes, the other cannot maintain Trover for it ; but if he 
 destroys it, then Trover will lie.(r) 
 
 8. The right of the Tenant to carry away the materials 
 of any erections made by him on the Land or Premises 
 occupied by him, on the expiration of his term, often 
 raises an important question at Nisi Prius : every erection 
 fixed to the freehold prima facie belongs to the Landlord, 
 and he may maintain Trover for it if taken away ; but as 
 
 (o) 2 Esp. Dig. N. P. C. 89. 
 
 (A) 2 Esp. Dig. N. P. C. 92. 1 Wils. 828. 
 
 (y) 1 Terra Rep. 658. (r) Co. Litt. 200.
 
 CHAP. XII.] the Action of Trover. 255 
 
 there are many things of that description, which the Ten- 
 ant is warranted in taking away, he then should be pre- 
 pared with Evidence accordingly. 
 
 This Tenant's right depends on the Custom of the 
 County, and on positive determination of Law.(6) 
 
 As if the custom of the County is, that the Tenant of 
 a Farm may, at the end of his Term, carry away, e. g. 
 the timber of a Barn erected on blocks or timbers lying 
 on the ground, that is a good custom : in that case, the 
 Defendant must call Witnesses to prove the established 
 and received usage and custom of the County, not from 
 opinion or hearing only, but from having known it acted 
 on ; then prove that the erection in question was within 
 the usage.(c) 
 
 (b) 2 Esp. Dig. 100. (c) Bull. N. P. 54.
 
 256 Of the Evidence in Action, &c. [CHAP. XIII. 
 
 CHAPTER XIII. 
 
 OP SETTLING THE EVIDENCE IN THE ACTION OF 
 TRESPASS ON THE CASE. 
 
 AN settling the Evidence in cases of Actions on the Case, 
 which are more numerous than in any other form of Ac- 
 tion, this general Rule is to be observed, and which in 
 some respect varies from the rules of Evidence in other 
 Actions, that a less degree of strictness of proof is requir- 
 ed : it being laid down as a rule, that material averments 
 are only put in issue, and nothing more. (a) 
 
 It may be necessary to exemplify this Rule by some 
 examples, which in similar cases may be applied. 
 
 The Plaintiff declared in Case for negligence, in running 
 down his Boat near the Halfway Reach in the river 
 Thames ; the injury was proved to have been committed 
 in the Halfway Reach. It was objected to as a variance, 
 but was held not to be so, for the injury was the ground 
 of Action ; and if that was proved, it was immaterial 
 where it was committed.(6) 
 
 So where the Declaration stated an injury done to the 
 (a) 2 W. Blackst. Rep. 840. () 4 Term Rep. 558.
 
 CHAP. XIII.] Action of Trespass on the Case. 257 
 
 Plaintiff's House, situate at Sheerness, in the county of 
 Kent ; and, at the Trial, it appeared that the House was 
 situated at Minster, near Sheerness ; it being an imma- 
 terial averment where the House stood, provided the inju- 
 ry stated in the Declaration was proved to have been com- 
 mitted, the variance was held not to be good ground of 
 nonsuit, (c) 
 
 But any variance in the Evidence of a material aver- 
 ment is fatal ; and that is material, which states the Plain- 
 tiff's ground of complaint. As if the Plaintiff was to de- 
 clare for a disturbance in a right of way across a certain 
 
 Close, called Home Mead, and in Evidence it appeared 
 that the Close over which he claimed a right of way, was 
 called Cow Meadow, and that Home Meadwas a different 
 Close. As the Plaintiff claimed title to a right in the 
 wrong Close, his Evidence would not support it ; and 
 being his title, it was a material averment, and the vari- 
 ance fatal. 
 
 The principal heads of injuries in this case are such as 
 affect. 1. The Person. 2. Personal Property. 3. Real 
 Property ; and, lastly, Personal Rights. 
 
 1. Of the Evidence in Actions on the case for Injuries to 
 the Person. 
 
 1. If the Action is against a Surgeon or Apothecary, for 
 an injury to the Plaintiff's health, he must prove that the 
 Defendant was a. Surgeon or Apothecary by profession : 
 acted as such, and was paid or fee'd in that character : 
 
 1 Bos. & Pull. 225. 
 
 K k
 
 Of the Evidence in [CHAP. XIII. 
 
 that he was employed by the Plaintiff to cure some wound 
 or bodily injury. He must then prove, what the Defend- 
 ant did in his attendance on him ; and then call persons 
 of medical skill and experience to give their opinions and 
 Evidence, that the course followed was ignorant, impro- 
 per, and unskilful ; and the want of cure of the Defend- 
 ant's wound or malady was the eifect of the ill treatment 
 of it. The protracted illness of the Defendant, the ex- 
 pense incurred, &c., are all matters capable of proof, and 
 must be proved by a witness. 
 
 2. A Tavernkeeper or Publican,(d} who sells bad Wine 
 or Liquors to a Customer, by which his health is affected, 
 may be sued for damages in this Action. In such case 
 the Plaintiff must prove, that the Person who sold the Li- 
 quors was an Innkeeper, Tavernkeeper, or Publican, and 
 that his House was open for that purpose : that the Plain- 
 tiff drank the Wine or Liquors furnished there to him by 
 the Defendant, and then show clearly that his illness pro- 
 ceeded from the use of them ; this must be done by wit- 
 
 nesses. 
 
 3. If a Person keeps a Dog used to bite,(<?) or other 
 vicious animal, as a Bull, e. g. and a Person has been hurt 
 by either, he may sustain an Action for the injury. In 
 this case, it is indispensable to bring Evidence home to 
 the Defendant, the Owner of the animal, that he knew 
 that it was vicious, and kept it after notice.(/) That is 
 matter of viva voce Evidence. The Defendant may de- 
 fend himself by showing that the Dog or Bull were kept 
 
 i 
 
 (d) 2 Esp. Dig. N. P. 108. 
 
 (e) 2 Esp. Dig. N. P. 109. 1 Ld. Raym. 606. 
 (/) Brook v. Copeland, I Esp. N. P. C. 203.
 
 CHAP. XIII.] Action of Trespass on the Case. 259 
 
 in proper places ; the Dog e. g. for defence of his Pre- 
 mises, and the Bull in a Close ; and that the hurt the Plain- 
 tiff" received proceeded from his going into either place 
 where he had no business. 
 
 2, Of the Evidence in cases of injury to Personal Proper- 
 perty, by Officers or private Persons. 
 
 This is first by Officers : 
 
 1. In Trespass against the Sheriff, it should be observ- 
 ed, that he being by law answerable for the acts of his 
 Officers, where he is sued for any act of theirs, and his 
 name only appears on the Record, the Officer who did 
 the wrong must be connected with the Sheriff, by show- 
 ing the Sheriff 's Warrant directed to him to act. Sec 
 ante, 126. 
 
 Having observed that precaution in settling the Evi- 
 dence, is necessary in every case : the principal heads of 
 Action in this case are, 1. Against the Sheriff for Es- 
 capes. 2. For Informal Executions. 3. For False Re- 
 turns. 
 
 In the case of Escapes, I have already given the Evi- 
 dence required, in Debt for an Escape where the De- 
 fendant is in custody on final Process, (page 126.) The 
 case of an Escape here is, where there has been an Escape 
 on mesne Process, in which case the damages are uncer- 
 tain. 
 
 In this case, the Plaintiff must prove the suing out of 
 the Writ, either by the production of the Writ itself, or of
 
 260 Of the Evidence in the [CHAP. XIII. 
 
 an examined copy from the Treasury when returned. If 
 cepi corpus is indorsed, it proves the arrest : if non est 
 inventus is returned, when in fact the Defendant was ar- 
 rested, there are two Counts always laid in the Declara- 
 tion, the one for an Escape, the other for a false Return ; 
 and where that is so, the Plaintiff, to fix the Sheriff, must 
 show that a Warrant was made out by the Sheriff to one 
 of his Officers ; that that Officer was seen to arrest, or 
 have the Defendant in his actual custody : and that he 
 was afterwards seen at large. 
 
 It is indispensable for the Plaintiff, if he goes for an Es- 
 cape, to prove that the Defendant in the original Action 
 was in the custody of the Officer, who had the Writ 
 against him, and to whom the Warrant was directed. If 
 the Defendant was seen openly and at large after the de- 
 livery of the Writ to the Sheriff, and a Warrant granted 
 on it, unless an actual arrest took place by that Officer, an 
 Action for an Escape will not lie : the form of Action 
 then is, Case against the Sheriff for negligence in not ar- 
 resting the Defendant ; but, to subject the Sheriff in that 
 case, Evidence must be given by the Plaintiff that he in- 
 formed the Sheriff's Officer where the Defendant could 
 be found, or pointed him out to him, notwithstanding which 
 he neglected to make his caption. 
 
 But the mere fact of the Defendant being seen at large 
 will not subject the Sheriff to an Action for an Escape, as 
 he is bound, if sufficient Bail is offered, to let the Defend- 
 ant remain at large until the return of the Writ. The 
 Plaintiff must, therefore, wait until the return of the Writ ; 
 and if no Bail Bond has been taken, or Bail above put in, 
 or the Defendant surrendered, the Action will lie. In
 
 CHAP. XIIL] Action of Trespass on the Case. 261 
 
 settling the Evidence, therefore, it will be necessary to see 
 if any of these matters have taken place ; and, if they 
 have, the Action will not lie. 
 
 The Evidence for the Defendant, the Sheriff, in this parti- 
 cular case, should be attended to. 
 
 What is just now stated, on being given in Evidence 
 by the Sheriff, is matter of defence for him. 
 
 But he may give other matters in Evidence as, he 
 may show that the Defendant, when in custody on mesne 
 Process, was rescued.(g] This must be circumstantially 
 proved by a witness who saw the circumstances, and can 
 prove the violence used to the Officer, in consequence of 
 which he was forced to give up the Person arrested. 
 
 2. Another ground of this Action, against the Sheriff, 
 is for some irregularity in executing a Writ of fi. fa. 
 This may be by the Landlord of the Defendant in the 
 original Action ;(/z) where the Sheriff has neglected to re- 
 serve a yearns rent, he having had notice that so much was 
 in arrear to him : for that purpose he should show, that 
 the Defendant in the Action was his Tenant ; that there 
 was so much in arrear of rent ; that he gave notice to that 
 effect to the Sheriff. This last should be proved by a 
 written notice served on the Sheriff which he should 
 have notice to produce ; and a witness should then 
 prove a copy compared with that served, and then prove 
 the sale of the effects by the Sheriff. 
 
 So the Sheriff may be liable in this Action, at the suit 
 (g} Cro. Jac. 409. (/) Stat. 8 Ann. c. 14. 1 Stra. 92, 212.
 
 262 Of the Evidence in the [CHAP. XIII. 
 
 of the Defendant, for misconduct in the sale of his effects, 
 and for not returning him the overplus after all due al- 
 lowances.^') 
 
 As if he sold effects of the Defendant for 51. which the 
 Defendant proves were worth a much larger sum, or in 
 an improper way. If the Party proves these facts by 
 witnesses, the Sheriff will be liable. So if he charges any 
 deductions ; as for rent paid to the Landlord : he must 
 prove the payment, and the Landlord cannot be a witness 
 to prove it. He is, therefore, bound to prove the tenancy 
 and rent in arrear, as in the case last mentioned. 
 
 3. So if the Sheriff executes first, a Writ delivered to 
 him subsequent to one before in his hands, he will be liable 
 in this Action. (k) In that case, the Plaintiff must prove 
 the first Writ by production of it, or by an examined copy 
 if returned. He must also show the time when it was 
 delivered to the Sheriff. He must then give in Evidence, 
 that there were Goods of the Defendant's on the Premi- 
 ses when he delivered the Writ to the Sheriff, and which 
 he either has not levied on, or returned nulla bona to the 
 Writ offi.fa. so first delivered to him. 
 
 This question is raised in an Action against the Sheriff 
 for a false return ; therefore, where he has returned nulla 
 bona, the Plaintiff, by giving the Evidence just mentioned, 
 falsifies the return.(/) 
 
 Under this head, questions of property in Goods taken 
 
 (i) 3 Campb. 524. (*) Salk. 320. 
 
 (/) 1 Wils. ,44.
 
 CHAP. XIII.] Action of Trespass on the Case. 263 
 
 are tried ; for as the Sheriff is liable in Trespass for levy- 
 ing on Goods under theji.fa. not the property of the De- 
 fendant in the Action, and that property is often doubtful ; 
 if he is either indemnified, or takes upon himself to decide 
 between two claimants, in whom the actual property is, 
 and makes his return accordingly, and the other Party 
 chooses to contest it, he does it in an Action for a false 
 return. In that case, the whole of the case will depend 
 on proof of actual property, which is matter of fact to 
 whom the Goods really belong. 
 
 2. For any breach or neglect of his duty, this Action 
 lies against an Attorney. (m} 
 
 As, ex. gr. if the Attorney neglects to charge a De- 
 fendant in execution in due time, by reason of which he 
 is superseded,(w) the Action will lie against the Attorney 
 for his neglect. The Evidence in that case would be, 
 the retainer of the Defendant as Plaintiff's Attorney ; that 
 the Defendant in the original Action had been arrested 
 or taken in execution at his suit, and committed to Pri- 
 son : this is proved by the books from the Fleet, the 
 King's Bench, or other Prison where the Defendant was 
 in custody ; by that Evidence too the actual time of his 
 committal will appear. The Officers from the same Pri- 
 son will produce the supersedeas, or order for his dis- 
 charge, which will also show the grounds of it, that is in 
 the present case, by reason of the Defendant not being 
 charged in execution within three Terms according to the 
 practice of the Court. If the Plaintiff has suffered from 
 the discharge of the Defendant in losing his Debt, and it 
 
 (m) 2 Esp. Dig. N. P. 122. () 2 Wils. 325. 4 Burr. 2060,
 
 264 Of the Evidence in the [CHAP. XIII. 
 
 is so laid in the Declaration, he may give that in Evi- 
 dence of his damages^ 
 
 The Evidence must necessarily vary according to the 
 different cases of neglect by the Attorney, and be settled 
 accordingly. As if, in a purchase, the Attorney takes 
 upon himself to decide upon the validity of the title, and 
 it turns out to be bad, or neglects to do what is necessary 
 to complete it, in consequence of which his client loses 
 his money, the Attorney will be liable : in that case, the 
 Plaintiff must prove that he employed the Defendant : that 
 he prepared the conveyances which must be produced 
 and proved. The receipt on the back, proves the pay- 
 ment of the money on proving the Party's hand-writing 
 to the receipt. He must then prove that he lost the bene- 
 fit of his purchase, if Lands or Tenements, by showing a 
 recovery against him, or eviction, by a Person having 
 title, as a judgment in Ejectment, ex. gr. against him, 
 which should be produced and proved: if the neglect 
 was of something necessary to complete the conveyance ; 
 as neglecting to have a proper memorial of an annuity by 
 reason of which the Court set it aside, the rule of Court 
 so ordering it should be produced, and also an examined 
 copy from the Office of the Clerk of the Rules, which 
 states the ground of objection to the validity of the annui- 
 ty, by reason of which it was set aside. 
 
 3. Justices of Peace are liable in this Action for cer- 
 tain breaches of their duty ;(o) as if he refuses Bail when 
 
 (o)2Esp. Dig. N. P. 124.
 
 CHAP. XIII.] Action of Trespass on the Case. 265 
 
 offered, and where it ought to be taken. In such case, 
 the offence for which the Party was in custody, is proved 
 by a copy of the committal to Prison, and then the offer 
 of Bail to him must be proved by the Person who did it. 
 
 It has been before observed,(/>) that where a convic- 
 tion of a Justice has been quashed, and he being liable in 
 damages for any injury which the Party has suffered in 
 consequence of it, that by Statute. 43 Geo. III. c. 145. 
 the form of Action must be Case. Where it is so brought 
 to support the Action, the Plaintiff must prove express 
 malice in the Defendant. This may be done by ex. gr. 
 proving oppressive acts done by the Justice ; declarations 
 of enmity to the Plaintiff made by him to others. On the 
 other hand, the Justice may show that he had good ground 
 for his Proceedings, by calling the witness on whose tes- 
 timony he was convicted, and so rebut the presumption of 
 malice. 
 
 4. Actions against Carriers, for negligence, are brought 
 in this form of Action, though they may also be sued hi 
 Assumpsit. 
 
 Carriers being liable for the loss of all Goods entrusted 
 to be carried by them,(y) unless the loss has happened 
 from the act of God, or the King's enemies ; from the de- 
 fault of the Party sending them ; or by reason of a notice 
 given by the Carrier of his non-responsibility under parti- 
 cular circumstances ; in all cases, the Plaintiff must prove, 
 that the Defendant was a common Carrier, either by land 
 or water, announcing himself to the world as such, or that 
 
 (/O Vicl, Ch, of Trespass. '</) 2 Esp, Dig. N, P. 125,
 
 266 Of the Evidence in the [CHAP. XIII. 
 
 he expressly undertook to carry the things for hire : these 
 facts are matter of parol Evidence. He must next prove 
 the delivery to the Carrier, either in person, or to the ser- 
 vant regularly employed by him in the business, or at the 
 House, Inn, or Wharf, where he was in the habit of re- 
 ceiving Goods, or where he advertised or notified that 
 Goods were to be left or received. This must be done 
 by the witness who left them or delivered them ; and he 
 must say where he delivered them : if he got a receipt 
 for them, he should produce and prove it ; and if they 
 were entered in a book kept by the Carrier, notice should 
 be given to produce it. The Plaintiff must next prove 
 how the Goods were directed, and that they had not been 
 received, or were lost ; and, lastly, their value. 
 
 The defence for the Defendant must be on one of the 
 grounds of exemption above stated, (r) 
 
 Thus, if Goods were sent by a Hoy, and she was sunk 
 in a sudden squall of wind, that is the act of God, and 
 excuses the Carrier. The Law is the same if the Hoy- 
 man was obliged to throw some Goods overboard to 
 lighten the vessel, or save the passengers in a storm. (s) 
 
 So if Goods were set on fire by lightning, it would be 
 deemed the act of God : but in case of Goods being con- 
 sumed by fire, the Defendant must prove the fire to have 
 proceeded from that cause.(J) 
 
 To exempt the Carrier from liability, by reason of the 
 Goods being taken from him by an armed force, they 
 must be foreign enemies : not Rioters or River Pirates. (u) 
 
 (r) 1 Stra. 128. (*) 1 Roll. Ab. 79. 
 
 (*) I Term Rep. 27. (M) 1 Vent. 109. 1 Term. Rep. 33.
 
 CHAP. XIII.] Action of Trespass on the Cast. 267 
 
 It should, therefore, be shown of what description the 
 Persons were. 
 
 But if a Person will force his Goods on the Carrier 
 when his wagon or vessel is otherwise full ; or puts his 
 Goods into improper packages, and they are lost or dam- 
 aged, the Carrier is not liable ; when, therefore, this is the 
 case, the Defendant should be prepared with Evidence to 
 that effect. (x) 
 
 The general and most usual defence is, that the Car- 
 riers have given a notice to all Persons sending Goods by 
 them, that they would not be answerable beyond a certain 
 sum, or for a certain description of Goods, unless they 
 were specifically paid for the carriage of them : a great 
 variety of decisions have taken place on this. (Vid. 2 
 Esp. Dig. N. P. 128.) It is now held, that there must be 
 that specific notification made to every Person sending 
 Goods : and that the putting up a large board to that ef- 
 fect in the Coach-office, was not sufficient notice, unless 
 knowledge of it was brought home to the Person sending 
 the Goods. 
 
 So held by Abbott, Ch. Just., at G. Hall, Sitt. after 
 Trin. Term, 1819. v. Waterhouse. 
 
 5. Pawnbrokers, or Persons who take Goods in pledge, 
 are the next subject of this Action for any misconduct 
 respecting them, as for losing them, or not returning them 
 on demand ; it being the nature of the contract, that on 
 repayment of the sum advanced on them, the Goods are 
 to be restored. (z/) 
 
 (a-) 2 Esp. Dig. N. P. 126. 2 Show. 127. 
 (y)2 Esp. Dig. N. P. 132.
 
 268 Of the Evidence in the [CHAP. XIII. 
 
 Where this is the case, the Plaintiff has only to give 
 Evidence of the pawning : that is done by producing the 
 Pawnbroker's Ticket, and proving it to be his hand- 
 writing, or that of his clerk, who should be called as a 
 "Witness, if there is any doubt of his being so employed. 
 If the Person is not a Pawnbroker, but has had the Goods 
 on pledge, the delivery of them on those terms to the De- 
 fendant, must be proved : the Plaintiff must next prove 
 the value of them ; and, lastly, a tender of the money ad- 
 vanced on the pledge, and a demand of the Goods. This 
 Evidence, on the part of the Plaintiff, must be given, and 
 may be done by the Witness who did it; 
 
 The Defendant may give in Evidence that the Goods 
 were stolen from* him, though he otherwise took due care 
 of them : but this would be no answer, if the Plaintiff had 
 previously tendered the sum advanced on them. 
 
 6. Another case in this Action, where Goods have been 
 delivered to another to be kept, or been lent, and they are 
 lost.(z) 
 
 In these cases, the Person who has had them so deliver- 
 ed to him, is only liable where such neglect is imputable 
 to him, as occasions the loss ; and the Plaintiff must al- 
 ways be prepared with Evidence to show that there was 
 gross neglect, or a user of the thing lent, in a manner dif- 
 ferent from the purpose for which the owner lent it. (a) 
 
 Thus, ex. gr. if Goods are delivered by a Person to be 
 put on board a ship, and he uses defective tackle which 
 breaks, and the Goods fall into the water and are lost, the 
 
 (z) 2Esp. N. P. 132. (a) 1 Stra. 681.
 
 CHAP. XIII.] Action of Trespass on the Case. 269 
 
 party is answerable ; for it was gross neglect in him not 
 to have good and sufficient tackle.(6) 
 
 So if one lends a Horse to go one journey, and the par- 
 ty to whom he has lent it, takes him another, and the 
 Horse is lost or dies, the party to whom he was lent is 
 
 7. Action against Innkeepers, for things lost by Persons 
 in their Inns, is another ground of this Action.(of) 
 
 To entitle the PJaintiff to recover damages in this Ac- 
 tion, he must prove, 1st, That he was a Guest, and using 
 the Inn as such, and had been so received : 2. That the 
 House was a common Inn for the reception of travellers, 
 kept by the Defendant : 3. That the loss arose from the 
 act or neglect of the Innkeeper, or his Servants : 4. That 
 the Goods were brought into the Inn, and were the proper- 
 ty of the Plaintiff; and were lost or stolen from the Inn, 
 and after being so lodged there : all these matters must 
 be proved by Witnesses, to be called on the Trial. (e) 
 
 In answer to that case, however, the Innkeeper may 
 prove, 1. That he told the Plaintiff that his House was 
 full, and that there was no accommodation for him, but 
 the Plaintiff said that " he would shift or take his chance ;" 
 for if his Goods were afterwards lost, the Innkeeper would 
 be discharged, for he did not receive Plaintiff as a guest. 
 2. He may show that the Plaintiff was not a traveller or 
 guest, but a neighbour, who asked for a lodging out of 
 kindness.(/) 3. That the Goods were stolen by Plaintiff's 
 
 () 2 Esp. N. P. C. 262. (c) Com. Rep. 136. 
 
 (rf) 2 Esp. Dig. N. P. 133. 0) Co. 32. 5 Term. Rep. 273. 
 
 (/) 1 And, 29. Moor. 78.
 
 270 Of the Evidence in the [CnAp XIII. 
 
 own Servant or Companion. 4. That he desired the Plain- 
 tiff to put the Goods into a particular place for security, 
 which he did not do, and they were lost,(^) the Inn- 
 keeper, in that case, is not liable. 5. That the Plaintiff 
 gave orders to have the Goods disposed of in a particular 
 place out of the Inn ; as if he ordered his Horse to be 
 turned out to grass, and he is lost, the Innkeeper is not 
 liable. 6. If the Goods lost are dead ones, the Innkeeper 
 may show, that they were Goods which the Plaintiff left 
 at his Inn, where he himself was not as a guest, and of 
 course, the Innkeeper deriving no profit from them, was 
 not bound to take charge of them : but if he had left a 
 Horse there, inasmuch as the Innkeeper derived a profit 
 from his standing, if he was lost, the Innkeeper would be 
 liable : all these facts must be proved by Witnesses, ac- 
 cording as the Defendant relies on them for his defence, (fi) 
 
 Another ground of Action against an Innkeeper is Jt /br 
 refusing to receive a Person as a Guest, who comes to his 
 Inn, and offers to pay for what he has. The Plaintiff, in 
 that case, must give in Evidence at the Trial, that the 
 Defendant's House is a common and open Inn or Public 
 House, and that he required to be entertained in it, which 
 was refused ; and that he offered to pay for what was fur- 
 nished to him :(z) but the Defendant may show that his 
 House was full, and that there was no room. 
 
 8. Maliciously suing out a Commission of Bankruptcy is 
 another good ground of this Action.() 
 
 () Moor. 158. Caleys Cas. 8 Co. 22. 
 
 (A)Salk. 388. (i) Keilw. 50. Dyer 58. 
 
 (*) 2 Esp. Dig. N. P. 135.
 
 CHAP. XIII.] Action of Trespass on the Case. 271 
 
 In that Action the Plaintiff must give in Evidence, 1. 
 The Commission, by which it will appear that the De- 
 fendant was the Petitioning Creditor ;(/) and this is done 
 by the production of the Commission itself ; or, if the 
 Plaintiff cannot get at it, by a Witness from the Bank- 
 rupt's Office, who will prove the issuing of the Commis- 
 sion on the Defendant's petition, which he will produce, 
 and it will be necessary to prove the Defendant's hand t6 
 it. 2. The Proceedings under it should be given in Evi- 
 dence, by a subpoena duces tecum to the Solicitor under the 
 Commisssion, and to the Assignees ; if not forthcoming, 
 the Gazette should be produced to show the opening of 
 the Commission ; and any of the Commissioners may be 
 called to prove that it was opened, and how it was pro- 
 ceeded in. 3. The Plaintiff must prove that it was super- 
 seded, and give some Evidence of bad or malicious mo- 
 tives actuating the Defendant in suing it out. That it 
 was superseded is proved, by producing the writ of Super- 
 sedeas under the great Seal : a copy of the Lord Chan- 
 cellor's order on the Petition is not sufficient.(m) 
 
 If the Plaintiff cannot bring malice home to the De- 
 fendant, it is better for him to get an assignment of the 
 Bond from the Chancellor, as in this Action, the Damages 
 are uncertain ; but under the Bond he recovers the whole 
 penalty : in which case the execution of the Bond and 
 the Assignment must be proved. 
 
 9. Deceit in Sales forms another ground of this Ac- 
 tion, (n) 
 
 (/) 3 Burr. 1418. (m) 3 Carapb. 60. 
 
 (n) 2 Esp. Dig. N. P. 136.
 
 272 Of the Evidence in the [CHAP. XIIL 
 
 To enable the Plaintiff to recover in this Action, where 
 there has been no Warranty, he must show, 1. A sale 
 and a false representation made by the Defendant of the 
 quality or value of the thing sold, which he knew at the 
 time was untrue, and which the Plaintiff could not 
 know.(o) 2. That it was made at the time of the sale, and 
 not afterwards. (p) 3. The Plaintiff may show, that the 
 Defendant used some art to hide the defects of the things 
 sold.(0 What were the representations made by the De- 
 fant, and the time when made, may all be proved by 
 Witnesses, who can speak to those facts. So if the De- 
 fendant had sold something not his own, pretending to 
 have a right or title to it, which he had not, the sale should 
 be proved, and the property be proved to be in another, 
 who may be called, (r) If there was a warranty, that should 
 be proved as laid, and be proved by Witnesses to be false, 
 Vid. ante, in Assumpsit.(,s) 
 
 10. The case of giving a Person a false Character for 
 solvency, by which he gains credit for Goods, ranks un- 
 der this head. The Plaintiff, in that case, must prove, 
 first, what is laid in the declaration as representing the 
 Party's character for solvency : this is usually laid in gen- 
 eral terms, which may have been either by writing, as by 
 letter, which should be produced, and the Defendant's 
 signature to it be proved ; or by parol, to be proved by a 
 Witness. He must next prove the furnishing of the 
 Goods in consequence ; and the loss of them, the Person 
 recommended being insolvent ; and he must, lastly, clear- 
 ly make out in Evidence, that the Defendant knew the 
 
 (o) 1 Salk. 211.1 Stra. 414. (A) Finch's Law, 289. 
 (?) 1 Roll. Rep. 5. (r) 2 Esp. Dig. N. P, 
 
 (*) 2 East, 446.
 
 CHAP. XIII.] Action of Trespass on the Case. 273 
 
 Person was not to be trusted ; or did it ex ?naldjide, that 
 is, ex. gr. that the Person recommended had some time 
 before had been a Bankrupt : that he was indebted to 
 him, and he sought to pay himself by the produce of the 
 Goods : or was himself to be in any way a gainer.(f) 
 This is indispensable ; for, if the Defendant himself be- 
 lieved the Person to be solvent, no action will lie.(w) 
 
 11. For any nuisance committed by one man against 
 another, either to his House or Land, this Action also lies. 
 
 Such as darkening the lights of his House, by raising 
 some erection near it. In that Action the Plaintiff must 
 prove that his House had been erected at least twenty 
 years, and that it had enjoyed the light, of the privation of 
 which he complains, for that time : 2. That the Defend- 
 ant had made the Erection, and that the effect of it was to 
 make his House dark and uncomfortable : this is proved 
 by Witnesses, who know the Plaintiff's House, the time 
 it has stood, and who can speak to. the effect of the De- 
 fendant's erection, (x) 
 
 The same mode of proof takes place, when the nui- 
 sance is for overhanging the Plaintiff 's House, or filling 
 it with noisome smells : in those cases the Plaintiff need 
 only prove his possession, and call the Persons, living in 
 the House, to state the inconvenience caused, or others 
 who have perceived the nuisance. Nuisances to the land 
 are proved in like manner(y) by calling Witnesses to the 
 facts. 
 
 (0 2 Esp. Dig. N. P. 139. 2 Bos. & Pull. 141. 
 
 (M) 2 East's Rep. 92. 
 
 (^) 2 Esp. Dig. N. P. 143. 9 Co. 58. 2 Saund. 175. in note. 
 
 (y)2 Esp. Dig. N. P. 145. 
 
 if in
 
 274 Of the Evidence in the [C HA p. XIII. 
 
 In Settling the Evidence under this head, it must be 
 observed that the Evidence should prove the fact to have 
 taken place in the County laid, as the Action is local. (z) 
 
 12. Disturbance in the enjoyment of any right is also a 
 ground of this Action ; as a right of way> right of com~ 
 mon, right of water, and other similar rights.(a) 
 
 If the Action is for disturbance of a right of Way : the 
 Plaintiff must first give Evidence of his right to the way, 
 as it is over the soil of another. If he claims it by grant, 
 he must produce the deed which gave it, and call the sub- 
 scribing Witness to the Execution ; unless it happens to 
 be more than thirty years old, in which case the bare pro- 
 duction of it is sufficient ; but the Plaintiff must also prove 
 that he used the way during that time. 
 
 If the right of way is claimed by prescription or usage. 
 
 That is supported by Evidence of Persons of consider- 
 able age who have known the way used without interrup- 
 tion as long as they can remember ; this presupposes 
 some grant of it, but which has been lost.(6) 
 
 In one case it is said that twenty years' enjoyment un- 
 interruptedly, is a title to go to the jury. Campbell v. 
 Wilson, 3 East. 294. 
 
 (z) 1 Taunt. 379. 
 
 (a) 2 Esp. Dig. N. P. 147. Co. Litt. 5. Cro. Jac. 170. 5 Taunt, 
 511. 
 
 4 1 1 East. 375. in note. Bull. N. P. 74,
 
 CHAP. XIII.] Action of Trespass on the Case. 275 
 
 In Settling the Evidence under this head, as well as in 
 all cases of disturbance of right, great accuracy is requir- 
 ed, to see that the* proofs correspond with that right laid 
 in the declaration, as any variance will be fatal ; as if the 
 Plaintiff" was to lay his right of way from A. to B., and 
 the termini were wrong, it being from A. to C. it would 
 nonsuit the Plamtiff ;(c) and so in other cases. As if he 
 was to claim a right of carriage way, and he proved a 
 drove way only, he would fail. The Evidence in case of 
 a disturbance of right of common is founded on similar 
 rules, that is, the Plaintiff must prove his right precisely 
 as he lays it ; if laid to be for one species of cattle, and 
 that of another is proved ; for a given number, and a dif- 
 ferent one is proved ; it is fatal. The Plaintiff's Evi- 
 dence in this Action is first to show, that he had a right 
 of common : 'that is proved by calling old Witnesses, 
 who know the Plaintiff's land and the common, and that, 
 as long as they can remember, the occupiers or owners 
 of Plaintiff's land have had and used the common ; and 
 they must also prove in what way it was used, which 
 must be correspondent with the Pleadings. He must then 
 prove the injury done by the Defendant, or his cattle, also 
 by Witnesses, which finishes his case.(rf) 
 
 It is to be taken as a general Rule, that every right 
 claimed by prescription, as for Toll for Fairs or Markets^ 
 Toll for grinding at a Mill, or for passage-money over an 
 ancient Ferry, and for a watercourse, is proved in the same 
 way by old Witnesses, who remember the toll or ferry- 
 age paid, or the watercourse flowing in a particular di- 
 
 (O Wright -v. Bathing, 2 East. 377. 
 (d) 2 Esp. Dig. N. P. 148. 9 Co. 1 12.
 
 276 Of the Evidence in the [CHAP. XIII- 
 
 rection, as long as they can remember ; and in all cases, 
 as the Action is for withholding the Plaintiff 's right he 
 must prove the several acts of the Defendant in breach of 
 his right.(e') Such as exposing Goods near the Market, 
 and so fraudulently evading payment of the Toll ; setting 
 up another Fair or Market within seven miles of the Plain- 
 tiff 's, or on the same day; carrying Corn to another 
 Mill.(y) In the case of a Watercourse, so claimed by 
 prescription, it is established by the Evidence similar , to 
 that just stated, and giving Evidence of the Defendant 
 having diverted or turned the water ; made pits to take 
 off part or the like, or in any way to diminish the quantity 
 of water 'which usually flowed to the Plaintiff 's Premises, 
 which is all matter of proof by witnesses. 
 
 Disturbance in the enjoyment of a Pew in the Church 
 is another ground of this Action, (g) 
 
 The Plaintiff must make out his title to the Pew in the 
 first place : for this purpose, he must either produce a 
 Faculty, which is a grant of the Pew under the seal of the 
 Bishop, and is in its production sufficient Evidence, or he 
 must show his right to the Pew as appurtenant to an an- 
 cient messuage : for this purpose, old people should be 
 called who know the Plaintiff's house ; that it has been a 
 dwelling house of the family as long as they can remem- 
 ber ; and that Individuals of that family always sat in that 
 Pew to the exclusion of all others. (h) But it has been 
 held that such an enjoyment for thirty years would be suf- 
 ficient.^") 
 
 (e) 2 Esp. Dig. N. P. 150. 2 Taunt. 120. 1 Bos. Sc Pull. 400. 
 (/) 2 Saund. 1 1 5. Dougl. 238. (#) 2 Esp. Dig. N. P. 1 5 1 . 
 (A) l Term. Rep. 428, (0 5 Term. Rep. 297.
 
 CHAP. XIII.] Action of Trespass on the Case. 277 
 
 The Plaintiff should also prove, that he or his prede- 
 cessors had repaired the Pew, if averred in the Declara- 
 tion ; but it is said not to be necessary in an Action 
 against a Stranger, though, if against the Ordinary, it is 
 necessary. () 
 
 All this is matter of parol Evidence, which the Plaintiff 
 must bring forward at the Trial, as well as proof of the 
 acts of disturbance done by the Defendant. 
 
 13. The infringement of an Authors Copyright forms 
 another ground of this Action.(/) 
 
 In this case, the only Evidence required for the Plain- 
 tiff, is the proof that he is the Author of the Book or 
 Work in question, which may be done by producing it, 
 and calling a witness who knows it, or by the Printer who 
 received the copy from him. He should then produce 
 the Work or Book published by the Defendant, and 
 prove that he published it, which may be done by a wit- 
 ness who bought it at Defendant's house ; and then, by 
 comparing one Book with another, the Piracy will ap- 
 pear ; thirdly, he should prove the Injury from the Sale 
 of the Defendant's Book. 
 
 The Evidence for the Defendant must, however, be 
 attended to. He may show, 1. That the Book publish- 
 ed by him is essentially different from the Plaintiff's, 
 though the subject is the same, by pointing out the addi- 
 tions or amendments made by him : this is done by col- 
 lating the two Books, and pointing out the passages ; that 
 
 (*) I Wils. 326. (/) 2 Esp. Dig. N. P. 141.
 
 278 Of the Evidence in the [CHAP. XIII. 
 
 reduces the matter to a question for the Jury to say 
 whether the Books are the same, or different. 2. He may 
 show that the time given by the Statute of Copyright to 
 the Author is expired. That may be proved either by 
 the Persons who printed the first edition of the Plaintiff's 
 Work, or by others who know when it first came out : 
 the time of the printing of the Defendant's Work or Book 
 will appear by the title page.(wz) 
 
 14. Of a similar description is this Action, when 
 brought for infringing a Patent. 
 
 The Plaintiff, in this Action, must first produce the 
 Patent, which, being under the great Seal, proves itself. 
 The invention whether mechanical or manufacture, for 
 which the Patent is granted, should be produced in a per- 
 fect state, and be proved to have been made according to 
 the specification. Then that which has been manufactur- 
 ed by the Defendant of the same kind must be produced, 
 and be proved to have been purchased from, or obtained 
 from the Defendant. It should then be pointed out to the 
 Jury, by the Plaintiff 's witnesses, that the two things pro- 
 duced are precisely alike, and in what respect, in particular, 
 the Defendant has adopted that for which the Plaintiff 
 had the Patent. This is proof by witnesses, as well as 
 the damages usually laid in the Declaration in the loss of 
 the sale of the article by the Plaintiff, (n) 
 
 This is all that is required for the Plaintiff to prove at 
 the Trial. The Defendant's Evidence is more extensive. 
 
 (m) 7 Term. Rep. 509. 1 East. 358. 1 Campb. 94. 4 Esp. N. 
 
 P. C. 168. 
 
 (n) 2 Esp. Dig. N.P.I 56.
 
 CHAP. XIII.] diction of Trespass on the Case. 279 
 
 He may first show that the Invention for which the 
 Plaintiff has obtained the Patent is not original.(o) This 
 is done by producing something of the same sort for which 
 the Patent is granted ; and proving by Witnesses, that 
 they had either made, or manufactured, or purchased the 
 same, before the date of the Patent, from other Persons. 
 By this Evidence it must accurately be established that 
 the subject of the Patent, and that made by Defendant, 
 appear to be the same, on which occasion the Plaintiff 
 may point out the difference. 
 
 The Defendant, 2dly, may show any defect in the Pa- 
 tent or Specification : and if he does so, the Plaintiff can- 
 not recover : as, he may show that the Patent was for a 
 whole work, whereas what the Plaintiff has done was an 
 addition only> and for which only he should have had a 
 Patent.( p) That the specification was so obscure or in- 
 accurate, that that for which the Patent was granted could 
 not be made by it, or required something else to be used, 
 not mentioned in the Patent, in order to produce it 
 
 3dly, The Defendant may show that the Plaintiff was 
 not the Inventor, but that another Person was : but it 
 should appear, in that case, that that Person lived in Eng- 
 land ; for a Patent may be good though granted for some- 
 thing done beyond sea before,(r) but which had been 
 brought into this country by the Plaintiff. 
 
 Lastly, The Defendant may show that the specification 
 was not enrolled within the time required :(s) all these are 
 
 (o) 2 Salk. 447. (fi) Bull. N. P. 76. 
 
 (?) Bull. N. P. 78. 1 Term Rep. 602. 
 
 (r) Salk. 447. (s) 2 Carapb. 294.
 
 280 Of the Evidence in tJw [CHAP. XIII. 
 
 cases of vivd voce proof referring to the Patent and speci- 
 fication. 
 
 14. If the Action is for disturbing a Person in the en- 
 joyment of an office with fees annexed.(J) 
 
 The Plaintiff must first show that he was appointed to 
 the Office by the Person in whom the right of nomination 
 was ; he must next show that there are certain legal and 
 regular Fees belonging to it, and that the office is of a per- 
 manent nature :(u) If the fees claimed are what are merely 
 given as gratuities, that will not support an action : he 
 must, lastly, prove the amount of them and the taking of 
 them by the Defendant to his injury for a certain time. 
 The appointment to the office may be by parol or grant ; 
 if the former, it must be proved by a Witness : if the lat- 
 ter, by production of the the Deed. The other matters 
 are proved by Witnesses. 
 
 These are the most important heads of this Action : as 
 they apply to the things for an injury to which the Action 
 is brought, it remains only to consider such as have a re- 
 ference to the Person. 
 
 These are : as the Plaintiff stands in the relation of a 
 Father, a Husband, or a Master. 
 
 1. This Action lies at the suit of the Father for Seduc- 
 tion of his daughter. It is, in form, considered as main- 
 tainable for the mere loss of the service of his daughter ; 
 
 (0 2 Esp. Dig. N. P. 152. (a) 2 Vent. 171. Cro. El. 859.
 
 CHAP. XIII.] Action of 'trespass on the Case. 281 
 
 but it has been ruled, that the Plaintiff may go into Evi- 
 dence of die loss of comfort in the affections of his child, 
 and the injury to his feelings. (x) 
 
 This case is usually proved, by the Plaintiff's daughter 
 who has been seduced; proving her relationship to the 
 Plaintiff; her doing the household offices and duties for 
 him ; her Seduction, with the circumstances of miscon- 
 duct and dishonour of Defendant, such as seducing her by 
 promise of marriage ; and if the Plaintiff has been put to 
 the expense of her lying in, or otherwise, and it is laid in 
 the Declaration, it should be proved. 
 
 It is indispensable for tlie Plaintiff to prove ; that, at 
 the time the seduction took place, his daughter made part 
 of his family, or occasionally at least assisted in the domes- 
 tic business of it ; for if she was out at service, or had 
 otherwise separated herself entirely from her Father's fa- 
 mily, no Action in that case will lie at his suit.Q/) 
 
 2. This Action will lie for the excessive beating, or ill 
 treating, the Plaintiff's son or daughter, with a per quod 
 servitium amisit,(z) The facts are proved in the same 
 way as in the case of Seduction. 
 
 2. This Action, in which the Plaintiff sues in the cha- 
 racter of a Husband^ with respect to Adultery, has been 
 treated of before. The Action here to be applied to, is, 
 first, where the Wife has been induced to live away from 
 her Husband by the persuasion of the Defendant, who 
 
 (u) 2 Esp. Dig. N. P. C. 155. 3<Esp. N. P. C. 119. 
 (y) 5 East. 45. (z) 1 Esp. N. P. C. 217. 
 
 (a) 2 Esp. Dig. N. P. 152.
 
 282 Of the Evidence in the [CHAP. XIII. 
 
 has harboured her after notice, and after a request that she 
 would return* 
 
 In this Action, the Plaintiff must prove his marriage in 
 the way before-mentioned ; then, that he and his Wife 
 lived happily together, and that he treated her properly, so 
 that there was no pretence for her quitting his house on 
 account of ill treatment. He must then show, that she 
 was living at the Defendant's, and that he had given no- 
 tice to him of her improper departure, and required him 
 not to harbour her : this notice it is advisable to gjye in 
 writing before bringing the Action, and to prove a copy 
 of it at the Trial. The Plaintiff may then give in Evi- 
 dence, the degree of comfort which he antecedently enjoy- 
 ed with his Wife ; and the necessity for her attention to 
 his domestic concerns and to his children, if he has 
 any. (6) 
 
 An Action on the case also lies at the suit of the Hus- 
 band for a battery of, or injury done to, his Wife, by 
 means whereof she is prevented from attending to her 
 domestic concerns ; in this case, her marriage should re- 
 gularly be proved ; the injury which she received from the 
 Defendant be proved by a witness, and the inconvenience 
 and discomfort sustained by the Plaintiff from her confine- 
 ment and illness ; and if he has been put to any expense 
 for medical assistance, or in procuring a person to attend 
 to his Family, he may give that in Evidence if laid in the 
 Declaration. 
 
 3. In the character of A Master, the Plaintiff may also 
 6 Bull. N. P. 78.
 
 CHAT. XHL] Action of Trespass on the Case. 283 
 
 sustain this Action, for seducing away and harbouring 
 his Servant or Apprentice, or for retaining the former in 
 his service, when required to discharge him : or for har- 
 bouring his Apprentice, (c) 
 
 In such Action, the Plaintiff must prove, that the Per- 
 son was his Servant, and known to be so by the Defend- 
 ant; that the time of his service was not ended, nor had 
 the Plaintiff discharged him : that the Defendant with such 
 knowledge, took him into his service : when this has been 
 dorite, it is not absolutely necessary for the Plaintiff to re- 
 quire the Defendant to give him up, before Action brought, 
 but it is adviseable to do so. 
 
 But where the Defendant had hired a Servant of the 
 Plaintiff's, not knowing him at the time to be so, no Ac- 
 tion will lie until after notice given to him by die Plaintiff 
 that he is so, and a requisition made by him that he should 
 discharge such Servant from his employment. This no- 
 tice and requisition are best made in writing, and served 
 on the Defendant before Action brought, and a copy of 
 them proved to have been served on him, by a witness at 
 the Trial. 
 
 If the Plaintiff has suffered any loss by the absence of 
 the Servant, as, ex. gr. if his work have been delayed. 
 This, if laid in the Declaration, the Plaintiff should prove 
 by viva voce Evidence. 
 
 If the Action is for seducing or harbouring the Plain- 
 tiff's Apprentice, he must prove the Indenture of Ap- 
 prenticeship by the subscribing witness, and then the 
 
 (c) 2 Esp. Dig. N. P. 154. 2 Saund. 169.
 
 284 Of the Evidence, fcfc. [CHAP. XIII. 
 
 same steps as to the notice, requisition, &c., as before- 
 mentioned in the case of a Servant ; and, in either case, 
 it is no excuse for the Defendant, that the Servant or Ap- 
 prentice refused to return, or that the Servant was a 
 Journeyman working by the Piece; the Defendant is 
 bound to send them away, (of) 
 
 The only matter, it should seem, which the Defendant 
 can give in Evidence is, that the Servant was bound to 
 serve his Master under a penalty, which the Master sued 
 for, and enforced the payment of it ; for then the right of 
 service is at an end.(e) 
 
 2. If a Person beats the Servant of another, so as to 
 disable him from working for his Master, the Master on 
 proving that he was his Servant, and the injury to have 
 been done to him by the Defendant, and the loss he has 
 sustained from the want of his service, may recover dam- 
 ages, to the amount of it, in this Action of Trespass on the 
 Case.(/) 
 
 (</) 5 Term. Rep. 221. Cowp. 54. 
 
 (e) 3 Burr. 1345. 2 Black. Rep. 38f. (/) I Roll. Ab. 88. 
 
 THE END,
 
 INDEX. 
 
 A. 
 
 ABUTTALS. 
 
 If stated in Trespass, how to be 
 
 proved Page 181 
 
 ACCORD- AND SATISFAC- 
 TION. 
 
 Evidence under it in Debt 1 37 
 How proved in an Action of Cove- 
 nant 148 
 
 ACCOUNT STATED. 
 
 What Evidence is required under 
 this Count 69 
 
 ACT OF PARLIAMENT. 
 
 How public and private Acts are 
 to be given in Evidence 1 6 
 
 ADMINISTRATOR. 
 
 See EXECUTOR. 
 
 Evidence under Plene Adminis- 
 trcrvit 1 32 
 
 ADULTERY. 
 In the Action for Adultery, what 
 Evidence is necessary 167 
 
 AGENT. 
 
 Where a Policy is subscribed by 
 a Person as Agent for another, 
 what Evidence is' required 36 
 
 The Agent so employed is a good 
 Witness to prove the fact 
 
 Page 36 
 
 Evidence in Actions by or against 
 them 79 
 
 AGREEMENT. 
 Of the Evidence in Actions on 
 
 Special Agreements 47 
 
 What are void under the Statute of 
 
 Frauds ibid. 
 
 What agreement may be given in 
 
 Evidence without a Stamp 48 
 
 AMENDS. 
 
 If tendered by a Justice of Peace, 
 how to be pleaded and proved 
 
 164 
 ANNUITY. 
 
 If set aside, and an Action is 
 brought to recover the Conside- 
 ration, what Evidence is neces- 
 sary 60 
 
 Evidence in Actions on Annuity 
 Bonds 120 
 
 APOTHECARY. 
 
 Sec SURGEON. 
 
 APPRENTICE. 
 What Evidence is necessary under 
 the Plea of a Justification for 
 chastising an Apprentice or 
 Servant 157
 
 286 
 
 INDEX. 
 
 Case for Harbouring See Mas- 
 ter. 
 
 ARREST. 
 Groundless Arrest, how given in 
 
 Evidence in Malicious Prose- AUCTION, 
 
 cution 230 Evidence in Assumpsit to recover 
 
 a Deposit on a sale by Auction 
 
 ARTICLES. 
 Ship's Articles, how far they are 
 
 Evidence 83 
 
 How Evidence of them is to be 
 
 procured ibid. 
 
 ASSAULT. 
 Evidence in Actions of Assault 
 
 150 
 Son Assault, Evidence under it 
 
 154 
 
 ASSIGNEE. 
 See BANKRUPT. 
 
 Of the Evidence in Debt for Rent 
 by an Assignee 124 
 
 Against an Assignee 1 
 
 Assignee in Covenant must state Of the 
 and prove his whole title 1 40 
 
 Evidence in Covenant on Breach How 
 for Assigning, Aliening, Sec. 
 
 143 
 
 Evidence to meet the Case on the 
 Breach of Covenant, for Assign- 
 ing 1 44 
 
 What is not a Breach of it by a 
 Sheriff, Bankrupt, &c. ibid. 
 
 ASSUMPSIT. 
 
 Evidence in Assumpsit where the Evidence when 
 consideration has failed 60 
 
 Evidence where it is to recover 
 Money paid by mistake 62 
 
 Of the Evidence under Non As- 
 sumpsit 105 
 
 ATTACHMENT, FOREIGN. 
 How proved, if pleaded in Debt 
 
 131 
 
 ATTORNEY. 
 Evidence in Case against him for 
 negligence, what necessary 
 
 Page 263 
 
 53 
 
 AVOWRY. 
 See RENT, DAMAGE, PEASANT. 
 
 B. 
 
 'BAIL. 
 
 Evidence on Suing his Co-Bail 
 for Contribution 65 and 70 
 Bail Bond, Evidence on it 118 
 In Debt on Bail-Bond, (he Defend- 
 ant under non est factum may 
 show that it was made after the 
 return of the Writ 1 30 
 
 BANKRUPT. 
 
 Evidence in Actions by the 
 Assignees of a Bankrupt 91 
 proved by proceedings, and 
 how by viva voce Evidence 92 
 
 Bankrupt's Wife or Creditor not 
 a Witness 93,94 
 
 Plea of Bankruptcy proved by 
 production of the Certificate, 
 how 94 
 
 Evidence to show it void 95 
 
 What Evidence of a new Promise 
 
 96 
 pleaded 1 1 1 
 
 In Covenant by the Assignees of a 
 Bankrupt, what Evidence is 
 necessary 141 
 
 Assignment of a Lease by the 
 Commissioners, no Breach of 
 Covenant not to assign 1 44 
 
 Of the Evidence in Ejectment 
 brought by the Assignees of a 
 Bankrupt 246
 
 INDEX. 
 
 287 
 
 Of the Evidence in Trover for 
 
 Goods under 
 c. 19. 
 
 Statute 21. Jac. I. 
 Page 288 
 
 Of the Evidence where the Action 
 is by the Indorsee against the 
 Acceptor Page 24 
 
 an Action against him by the 
 Assignee of a Bankrupt, under 
 
 Of the Evidence for Defendant in Of the Evidence in the Action by 
 
 the Indorsee against the Drawer 
 
 25 
 
 Of the Evidence where the Ac- 
 tion is by the Indorsee against 
 the Indorser ibid. 
 
 Of the Evidence when the Ac- 
 
 Statute 21. Jac. I. 
 
 206 
 
 Evidence necessary in an Action 
 for maliciously suing out a Com- 
 mission of Bankruptcy 270 
 
 BARON AND FEME. 
 Evidence required in Actions by- 
 
 Husband and Wife 
 
 100 
 
 Difference when sued for Debts 
 contracted before or after Mar- 
 
 riage 
 
 ibid. 
 
 Evidence in Actions against Hus- 
 band and Wife ibid. 
 
 Evidence for the Husband when 
 sued for his Wife's Debts 101 
 
 Wife's Elopement, how . far it 
 shall discharge the Husband 
 
 102 
 
 Evidence for the Wife, when suec 
 alone ibid 
 
 In Covenant by Baron and Feme 
 
 what they must prove 
 
 141 
 
 BILL OF EXCHANGE. 
 
 In Actions on them or Promissory 
 Notes, the Bill or. Note itsel 
 must be produced 22 
 
 In what Case a Copy is admissibl 
 
 ibid 
 
 Where Plaintiff must prove the 
 
 Consideration and his title to i 
 
 ibid 
 
 ceptance is by Procuration 26 
 
 Where it is by letter 27 
 
 Where it is by parol ibid. 
 
 Of the Evidence required on an 
 implied Acceptance 27 
 
 Of the Evidence where the Ac- 
 ceptance is by a Firm ibid. 
 
 Of the Evidence on Conditional 
 Acceptance 28 
 
 Adhere it is payable at a particular 
 place ibid. 
 
 Of the Evidence on Bills or Notes 
 payable to the Bearer ibid. 
 
 Of the Payment of Money into 
 Court, Evidence of Acceptance, 
 and what must be proved in that 
 Case 29 
 
 The same as to asking time for 
 payment ibid. 
 
 Notice of dishonour of a Bill or 
 Note, when necessary, and how 
 to be proved ibid. 
 
 If given by letter what must be 
 proved 30 
 
 How if the party cannot be found 
 
 What Evidence the 
 
 31 
 
 Defendant 
 
 may give in Actions on Bills or 
 Notes Want of Consideration, 
 Usury, or other illegality 33 
 When Usury shall avoid a Bill or 
 Note ibid. 
 
 Of the Evidence when the Action 
 
 is by the Payee against the Ac 
 
 ceptor 2f 
 
 Of the Evidence, where it is by 
 
 the Payee against the Drawer 
 
 24 
 Difference of the Evidence in sucl 
 
 Cases where the Bill has been How far proof of the Plaintiff 's 
 
 BILL OF LADING. 
 
 accepted, or refused Accept- 
 ance ibid. 
 
 Interest in Goods in an Action 
 on a Policy of Insurance 37
 
 288 
 
 INDEX. 
 
 BONA NOTABILIA. 
 Evidence in Pleas by Executors 
 Page 134 
 
 BOND. 
 
 Evidence in Actions on Bail Bonds 
 
 118 
 
 Evidence for Plaintiff in Debt on 
 Bond, and non est factum 
 pleaded 119 
 
 Evidence on Bonds of Indemnity 
 
 ibid 
 For performance of Covenants 
 
 120 
 
 Annuity Bonds ibid. 
 
 Against Heirs or Executors 121 
 
 BOOKS. 
 
 Public Books, Copies of them, 
 Evidence, and how given 1 6 
 
 C. 
 
 CARRIER. 
 
 Of the Evidence by him in Tro- 
 ver for Goods sent by him anc 
 lost 243 
 
 How to .be charged in Actions 
 against him as such, and the 
 Evidence required 265 
 
 Evidence of what shall 
 
 him 266 
 
 CHARACTER. 
 
 See FALSE CHARACTER. 
 
 CHARTER PARTY. 
 Evidence of Charter Party in Ac- 
 tions for Freight 86 
 
 CHURCH. 
 See PEW. 
 
 COGNIZANCE. 
 
 The Defendant making Cogni- 
 zance in Replevin as Bailiff to 
 any Person, the latter cannot be 
 a Witness Page 174 
 
 COMMON. 
 
 Of the Evidence in Case of Avow- 
 ry for Damage Feasant to a 
 Common 175 
 
 What is Evidence of a Right of 
 Common 176 
 
 COMPOSITION. 
 See DEED. 
 
 CONDEMNATION. 
 
 Condemnation in the Exchequer 
 of Goods, Evidence in Trover 
 
 250 
 
 CONSIDERATION. 
 
 When necessary to be proved in 
 
 Action, on Bills of Exchange 22 
 Proof of illegal Consideration to 
 
 make Bill Void ibid. 
 
 Rules as to Cases wher,e required 
 
 to be given in Evidence in K. 
 
 B. and C. B. 23 
 
 exempt Usurious consideration, how to be 
 
 taken advantage' of 33 
 
 Evidence in Assumpsit where the 
 
 Consideration has failed 60 
 
 CHURCHWARDEN. 
 
 Evidence in Actions by or against 
 
 a Churchwarden 
 
 CONSIGNEE. 
 
 lonsignee of a Cargo, a Good 
 Witness to prove interest 60 
 
 CONSPIRACY. 
 
 What Evidence in an Action for 
 a Conspiracy 253 
 
 CONSTABLE. 
 
 Evidence in Actions against Con- 
 stables, Watchmen, and other 
 Peace Officers 159 
 
 75 Constable acting under a War-
 
 I N D E X, 
 
 289 
 
 rant, not called upon to prove its 
 legality Page 162 
 
 CONVICTION. 
 
 How far it is Evidence in Actions 
 against Justices of Peace for ar 
 illegal Conviction 1 64 
 
 How to be given in Evidence 
 
 ibid 
 
 How a Justice of Peace is to de- 
 fend himself, if the conviction is 
 quashed 1 65 
 
 COPY. 
 
 Copies of any Papers or Instru- 
 ments in the opposite party's 
 hands when only they can be 
 given in Evidence, and what ne- 
 cessary to make them so 1 6 
 
 What Copies of Matters of Re- 
 cord, or Public Books are Evi- 
 dence 16 
 
 Copy of a Bill of Exchange 
 Note, when admissible, anc 
 when not 2 
 
 COPYHOLD. 
 
 Of the Evidence in Ejectment for 
 Copyhold Lands 208 
 
 Where brought for a Forfeiture 
 
 ibid. 
 
 The Evidence in Covenant must 
 be correspondent with the par- 
 ticular breach Page 139 
 
 Damages how to be proved 140 
 
 In Covenant by an Assignee, he 
 must state and prove his whole 
 title ibid. 
 
 What must be proved in Covenant 
 by Devisee, Executor, 8cc. 141 
 
 If Plaintiff's Title is by Act of 
 Parliament, what he must prove 
 ibid. 
 
 Covenant by Assignee of a Bank- 
 rupt, what Evidence required 
 ibid. 
 
 Evidence under Covenant for quiet 
 enjoyment 142 
 
 Evidence under the Covenant not 
 to alien or assign 1 43 
 
 Covenant to Repair, Evidence on 
 breach of it 145 
 
 orjCovcnant for not Ploughing Mea- 
 dow, and not using Land in 
 Husbandlike way 146 
 
 Evidence for Defendant in Cove- 
 nant, as other Covenants in Bar 
 147 
 
 To a Plea of Entry and Eviction 
 in jBar, what Defendant must 
 prove ibid. 
 
 COPYRIGHT. 
 
 Of the .Evidence in Actions for May 
 infringement of Copyright 277 
 
 COURT. 
 
 Sentences of Foreign Courts are 
 
 good Evidence in Actions for Evidence 
 Insurance, how proved 41 
 
 COVENANT. 
 
 Evidence in Assumpsit against a 
 Tenant on expressed Covenants 
 in an Expired Lease 7 1 
 
 Evidence when any thing is to be 
 previously done by Plaintiff 150 
 
 Subscribing Witness must always 
 be called 139 
 
 COVERTURE, 
 be given in Evidence under 
 Non Assumpsit, how to be 
 proved 105 
 
 CURATE. 
 
 in an Action by him 
 against his Rector 74 
 
 CUSTOM. 
 
 Of the Country, as to the Tenant's 
 
 right, take away what was fixed 
 
 254 
 
 D. 
 
 DAMAGE PEASANT. 
 Evidence ia Case of an Avowry
 
 290 
 
 INDEX. 
 
 
 for Damage Peasant to Defend- 
 ant's own Land Page 175 
 
 Evidence where done to a Com- 
 mon 176 
 
 DAY. 
 
 The day laid in the declaration 
 when only material 1 3 
 
 DEBT. 
 
 Evidence under the Pleas in debt 
 on speciality, vide Non est fac- 
 turn.) Rasure) Interlineation^ s 
 crow or bail bond 
 
 DECEIT. 
 
 Of the Evidence in Actions foi 
 deceit in Sale 272 
 
 DEED. 
 
 A 'Composition Deed with Credi 
 tors may be given in 
 under Non Assumpsit, Hov 
 
 108 
 
 DISTRESS. 
 
 tie taking as a Distress, how to 
 be given in Evidence in Tres- 
 pass under the Plea of not guil- 
 ty Page 184 
 Of the Evidence in Actions for 
 irregular Distresses ibid. 
 
 DOG. 
 
 Of the Evidence in Case for 
 keeping a Dog used to bite 
 258 
 
 E. 
 
 EJECTMENT. 
 Of the General Rules of Evi- 
 dence in this Action 195, 196 
 
 DELIVERY. 
 
 What is a good Delivery o 
 Goods to charge a Defendant 
 
 65 
 
 DEMAND. 
 In Trover, how proved 
 
 247 
 
 DEPOSIT. 
 Evidence in Assumpsit to Reco- 
 ver a Deposit on a Sale by 
 Auction 5 
 
 DILAPIDATION. 
 Of the Evidence Required in Ac 
 tions for Dilapidation 7 
 
 DISCLAIMER & TENDER 
 
 of AMENDS. 
 
 How proved in Actions of Tres 
 
 pass 19 
 
 ELEGIT. 
 
 Evidence What Evidence is required in 
 Ejectment under an Elegit 207 
 
 ENTRY and EVICTION. 
 
 tfow Evidence of Entry and 
 Eviction is to be given in Evi- 
 dence in the Action of Debt 
 
 131 
 
 How given in Evidence under nil 
 debet 137 
 
 How in the Action of Covenant 
 
 147 
 
 ESCAPE. 
 
 Of the Evidence in Debt against 
 the Sheriff, or other Officers 
 for an escape 126 
 
 Of the Evidence in Trespass on 
 the Case for an Escape, against 
 the same Officer 260 
 
 ESCROW. 
 Of giving an Escrow in Evidence 
 
 130
 
 D KX. 
 
 291 
 
 ESTRAY. 
 
 Of the Evidence in 1' rover by the 
 Lord of the Manor for an Es- 
 tray Page 243 
 
 EVIDENCE. 
 
 Rule as to giving written instru- 
 ments in Evidence 61 
 
 What may be given in Evidence 
 under Non Assumpsit 105 
 
 What is the Evidence in Debt 01 
 Bonds of different kinds, from 
 page 1 1 5 to 121 
 
 What Evidence is required in 
 Debt for Rent 1 2 1 
 
 What for Double Rent 122 
 
 What in an Action against Co- 
 Bail 124 
 
 What in Debt on Judgments 
 matters of Record 1 2 5 
 
 What may be given in Evidence 
 under A'on estfactum 129 
 
 See also the different heads 
 the Actions of Covenant, As- 
 sault, Sec. Sec. 
 
 taincr Plent Adminiatravit^ and 
 ne unrjues Executor 
 
 Page 132, 133 
 
 Under what circumstances Exe- 
 cutor durante minore xtate may 
 be given in Evidence under the 
 Plea of JYil De bet 137 
 
 What Evidence an Executor and 
 Administrator must give in 
 Covenant 1 40 
 
 What in Trover 244 
 
 F. 
 
 FACTOR. 
 
 Of the Evidence necessary in Ac- 
 tions by and against Factors 76 
 or Of the Evidence in Trover for 
 Goods sold by a Factor 237 
 
 FALSE CHARACTER. 
 of Of the Evidence in Case for giv- 
 ing a false character 272 
 
 EXCISE AND CUSTOMS. 
 See OFFICER. 
 
 EXECUTION. 
 
 Of the Evidence against (he She- 
 riff in Case for informal or ir- 
 regular Executions 259 
 
 EXECUTOR AND ADMIN- 
 ISTRATOR. 
 
 What Evidence is required in As 
 sumpsit by Executor or Ad- 
 ministrator 97 
 
 When bound to produce in Evi- 
 dence Probate or Letters of Ad- 
 
 ministration 
 
 ibid. 
 
 FALSE IMPRISONMENT. 
 
 What is good Evidence in this Ac- 
 tion under not guilty 152 
 
 What in justification 153 
 
 What is the Evidence in particu- 
 lar applying to different justifi- 
 cations 157 to 159 
 
 What in Actions by Officers of 
 the Army and Navy 159 
 
 FALSE RETURN. 
 See RETURN. 
 FATHER. 
 
 What Evidence is required to 
 charge a Father with neces- 
 What is Evidence for a Defend- saries furnished to his family 
 
 ant in Actions by them 98 103 
 
 What is Evidence for an Execu-j What in an Action on the case for 
 tion under the* Plea of a Re-\ seducing his daughter 281
 
 292 
 
 INDEX. 
 
 What for a battery of his Wife 01 
 Child Page 281 
 
 FINDING. 
 
 A Person who finds any thing how 
 to maintain Trover 244 
 
 FINE. 
 
 How to be given in Evidence in 
 Ejectment 215 
 
 trate for committing under a 
 conviction for killing it on a 
 Sunday. Page 166 
 
 What Evidence is required in 
 Actions of Trespass, arising 
 from the pursuit of game 1 87 
 
 Of the Evidence of a justification 
 under a Justice's warrant 188 
 
 Of the Evidence in Trespass 
 against a gamekeeper ibid. 
 
 FIRM. 
 
 Of the Evidence in Actions on Of 
 Bills where the Parties trade 
 under a Firm 27 
 
 FISHERY. 
 
 What Evidence is required in 
 case for injuries to Rights of 
 Fishery 186 
 
 FIXTURES. 
 
 What fixtures an outgoing tenant 
 may take away 
 
 FORGERY. 
 
 If money has been paid on a for- 
 ged instrument, what Evidence 
 is required to recover it back 
 
 FRAUD. 
 
 What may be given in Evidence 
 under Non Assumfisit 106 
 
 FREIGHT. 
 
 What Evidence is required n 
 Actions for Freight 85 
 
 G. 
 
 GAME. 
 What Evidence is required in 
 Actions under the Game Laws 
 129 
 What in justification of a Magis 
 
 GAMING. 
 
 giving gaming in Evidence 
 under Non Assumpsit 105 
 
 GOODS. 
 
 Of the Evidence in Assumpsit for 
 Goods sold and delivered 65 
 of When a Sale is presumed, Evi- 
 dence of it 66 
 What delivery of Goods shall 
 charge the Defendant in As- 
 sumpsit for Goods sold ibid. 
 254 Of the Evidence by the Defend- 
 ant in Assumpsit for Goods sold 
 
 67 
 
 Of the Evidence in Sales by a 
 Factor 76 
 
 H. 
 
 HANDWRITING. 
 
 What is good Evidence of a par- 
 ty's handwriting 16 
 
 HERIOT. 
 
 Evidence in avowry for a Heriot 
 
 179 
 
 HORSE. 
 
 Of the Evidence in Assumpsit on 
 the Warranty or sale of a Horse 
 
 56 
 
 HOUSE. 
 Of the- Evidence in Actions for
 
 INDEX. 
 
 295 
 
 nuisance to a house Page 273 
 
 HUSBAND. 
 
 Of the Evidence necessary in case 
 by the Husband for harbouring 
 
 his wife 
 
 281 
 
 Of the Evidence in Trover by the 
 
 husband and wife 
 
 See BARON and FEME. 
 
 Policy itself must be proved 
 
 Page 36 
 
 Evidence required where Policy 
 is subscribed by the Defendant 
 himself, or by an agent ibid. 
 
 The Plaintiff's interest in l!.c 
 Policy, how to be proved 35 
 
 I. 
 
 INDICTMENT. 
 
 How given in Evidence in the 
 Action for malicious prosecu- 
 tion 230 
 
 INFANT. 
 
 244 How if on Ship, and how if on 
 Goods 37 
 
 How Plaintiff's interest is to be 
 proved in Goods ibid. 
 
 How the time of ship's sailing 
 
 ibid. 
 
 How the loss, which must corres- 
 pond with that laid in the de- 
 
 claration 
 
 38 
 
 Loss by perils of the sea, how 
 proved if the ship has founder- 
 ed ibid. 
 
 Evidence of concealment of cir- 
 
 AX^I JL X * ^ *. u * AVJWtlVsV \JL \ H ,VJll\-.lUllliV-<lll Ul \sAl 
 
 Infancy, how given in Evidence! cumstances, false representa- 
 under Non Assumpsit 106 tion, or false warranty avoids 
 What is Evidence of necessaries! policy, what is to be shown as 
 
 in reply to a Plea of Infancy 
 
 INNKEEPER. 
 
 to each 39 
 
 107 As to the sea-worthiness of a ship 
 insured, what is the best Evi- 
 dence 42 
 
 Of the Evidence necessary to 
 charge him for goods lost at his 
 inn 269 
 
 What the Plaintiff, in such case 
 must prove ibid. 
 
 What an Innkeeper can give in 
 Evidence in his defence ibid. 
 
 What Evidence necessary in case 
 against him for selling bad 01 
 unwholesome liquors 258 
 
 INSOLVENT DEBTOR. 
 
 That the party took the benefit oi 
 
 Evidences for ship-owners in ac- 
 tions for freight 
 
 84 
 
 VI ay be given in Evidence under 
 non estfactum in debt on bond 
 
 INSURANCE. 
 Policies of, what are the materia 
 
 INTERLINEATION. 
 
 129 
 
 ISSUE. 
 
 The Issue to be first attended to 
 in Settling Evidence 9 
 
 an Insolvent Act, how to be The affirmation averments in it 
 given in Evidence 132 must be Droved 10 
 
 must be proved 
 
 General Issue puts the Plaintiff 
 on proof of every averment 
 
 ibid. 
 
 averments in every case to be Issue if on a part, that part only 
 proved 36 #//
 
 294 
 
 INDEX. 
 
 J. 
 
 JUDGMENT. 
 
 How given in Evidence Page 1 6 
 Of the Evidence in debt on a 
 Judgment 125 
 
 Same in case of foreign Judg- 
 ments, or from Ireland or Scot- 
 land ibid. 
 
 JUSTICE OF PEACE. 
 
 May justify under the Plea of not 
 guilty ' 153 
 
 How to show the commencement 
 of an action against them 
 production of the writ 1 63 
 
 Notice of Action against them, 
 hov; to be proved ibid. 
 
 If a Justice of peace has ^ 
 a tender of amends, how it is to 
 be proved 164 
 
 Of the Evidence against Justices 
 of Peace in cases of illegal con- 
 victions or legal ones 1 65 
 
 Evidence in case for breach of 
 duty, what required 3 1 8 
 
 Of the Evidence in Actions for 
 convictions 265 
 
 notice to quit Page 201 
 
 Of the Evidence in Ejectment by 
 mortgagees 202 
 
 What the Defendant may give in 
 Evidence in Ejectment ^ 203 
 
 How he may answer a notice to 
 quit 204 
 
 What is Evidence of a waiver of 
 a notice to quit ibid. 
 
 Of the Evidence in Ejectment by 
 the Assignees of a Bankrupt 
 
 206 
 
 1 53 Of the Evidence in Ejectment un- 
 der an Elegit 207 
 the Evidence in Ejectment for 
 Copyhold lands 208 
 
 Of the Evidence in Ejectment 
 brought under Wills 211 
 
 pleaded Of the Evidence in case by him 
 against the Sheriff for not re- 
 serving a year's rent 261 
 
 by Of 
 
 L. 
 LANDLORD. 
 
 See TENANT. 
 Of the Evidence in Ejectment by 
 
 Landlord against Tenant, on the 
 
 expiration of Tenant's lease, 
 
 what necessary 197 
 
 What when brought on a notice 
 
 to quit ibid. 
 
 Of the Evidence in Ejectment, 
 
 when brought for non-payment 
 
 of rent, or breach of covenant 
 199 
 
 In what cases lessor of the Plain- 
 tiff is not called upon to prove Under what 
 
 LEASE. 
 
 Covenant for quiet enjoyment, 
 Evidence on it 142 
 
 Lease with a covenant not to as- 
 sign, is not broken by a sale by 
 the Sheriff 144 
 
 Leave to assign by writing how to 
 be proved 1 45 
 
 Of the Evidence in Covenant, for 
 not repairing ibid. 
 
 Of the Evidence in Covenant for 
 ploughing up meadow, and not 
 using the land. in a husbandlike 
 way ibid. 
 
 LETTER. 
 
 Notice of the dishonour of a Bill 
 . by Letter, how proved 30 
 
 LIBEL. 
 Evidence in Action for 226, 228 
 
 LIEN. 
 
 circumstances and in
 
 INDEX. 
 
 295 
 
 what cases a lien is allowed 
 
 Page 252 
 In what trades and businesses a 
 
 lien is allowed ibid. 
 
 Who may set it up as an answer 
 
 in Trover 253 
 
 LIGHTS. 
 
 Evidence in Case for darkening 
 lights 273 
 
 LIMITATION. 
 
 Statute of Limitations, what Evi- 
 dence under it 11 
 
 May be given in Evidence undei 
 nil debet 137 
 
 LOAN. 
 
 To recover money lent, the Plain- 
 tiff should show a Loan 65 
 
 M; 
 
 MALICIOUS PROSECU- 
 TION. 
 
 General Rules as to the Evidence 
 lequired in it 229 
 
 Rules where it has been by Indict- 
 ment 230 
 
 Rules where it has been by Ar- 
 rest ibid. 
 
 Proceedings all at an end how 
 proved 232 
 
 What is a variance 233 
 
 What the Defendant may give in 
 Evidence under the general is- 
 sue 234 
 
 MARRIAGE. 
 Vide BARON and FEME. 
 
 Marriage of the Plaintiff and his 
 Wife necessary to be proved 
 in cases of adultery 1 67 
 
 How proved 168 
 
 MARSHAL. 
 Marshal of the K. B. or Warden 
 of the Fleet Evidence in an 
 Action for an escape ' 128 
 
 MASTER and SERVANT. 
 
 What Actions may be maintained 
 against a Master on contracts 
 made by his Sorvant 103 
 
 What Evidence in such case is 
 sufficient to charge or discharge 
 the master 104 
 
 Of the Evidence in Case by the 
 Master for seducing away and 
 harbouring his servant or ap- 
 prentice 283 
 
 Evidence in Case per quod servi- 
 tium amisit 284 
 
 MISTAKE. 
 Money paid by mistake recovera- 
 ble in Assumpsit ; and the- Evi- 
 dence required 62 
 
 MOLLITER MAWS 
 IMJPOSUIT. 
 
 What Evidence is required un- 
 der that Plea 155 
 
 What may be given in Evidence 
 under it 156 
 
 MONEY* 
 
 Evidence in Assumpsit for money 
 had and received 60 
 
 Same where it is money paid 63 
 
 Money paid voluntarily cannot be 
 recovered back ibid. 
 
 Evidence under the Count for 
 money paid to another's use 
 must show a request or com- 
 pulsion 64 
 
 Evidence under the Count for 
 money lent, what is necessary 
 
 65 
 
 Must show a Loan ibid. 
 
 Promissory note is good Evidence 
 
 ibid,
 
 
 296 
 
 I N D E X; 
 
 MORTGAGE. 
 
 Of the Evidence in Ejectment by 
 Mortgagee Page 203 
 
 N. 
 
 JV.fi UMQUES EXECUTOR. 
 Evidence under that Plea 1 34 
 
 JV7Z DEBET. 
 
 Of the Evidence under nil debet 
 
 JVOJV EST FACTUM. 
 
 Evidence for Plaintiff in Debt on 
 
 Bond 115 
 
 How Defendant under this Plea 
 
 may give in Evidence Rasure, 
 
 Interlineation, delivered as an 
 
 Escrow, &c. 129 
 
 Evidence when pleaded to a Bail 
 
 Bond ISO 
 
 Evidence under it in Covenant 
 
 147 
 
 JVOJV TFNUIT. 
 
 When under this Plea Defendant 
 
 must prove his Title 174 
 
 May be pleaded in Replevin when 
 
 Plaintiff has never paid rent 
 
 ibid. 
 
 NOTES. 
 
 Promissory, Rules the same as to 
 Bills Vide Bills 31 
 
 A promissory note is good Evi 
 dence under the count for mo- 
 ney lent 65 
 
 NOTICE. 
 
 Notice to produce papers how to 
 be given 15 
 
 Copy can be given in Evidence, 
 when 
 
 Notice of Action, how to be given 
 
 .ibid. 
 
 Notice of dishonour of a Bill of 
 Exchange, how to be given, and 
 when necessary Page 29 
 
 How the Defendant is to avail 
 himself of want of notice of bill 
 being dishonoured ibid. 
 
 Notice of Action against officers 
 when required, and how given 
 150 
 
 How proved 189 
 
 Against Justices of Peace, what 
 notice of Action, and how prov- 
 ed 16S 
 137 Notice to quit in Ejectment, how 
 to be proved 197 
 
 Form of Notice, what good 198 
 
 What is Evidence of a waiver of 
 a notice to quit 205 
 
 NUISANCE. 
 
 What Evidence required in an 
 Action for Nuisance 273 
 
 O. 
 
 OFFICE. 
 Of the Evidence in an Action for 
 disturbance in an Office 280 
 
 OFFICER. 
 
 Officers of Excise Customs or 
 Peace Officers when and how 
 notice of Action is to be given, 
 and how to be proved 1 50 
 
 In Actions against Officers, how 
 demand of perusal and copy of 
 their warrant is to be proved 
 
 151 
 
 Their appointment 157 
 
 How officers of the Army and 
 Navy are to justify 159 
 
 How an officer of the Sheriff is to 
 justify under process 160 
 
 f the Evidence necessary in Ac- 
 tion against Officers of the Ex- 
 cise or Customs 189 
 
 16O
 
 I XDF. X. 
 
 297 
 
 OPPRESSION. 
 Oppressive bargain, Evidence un- 
 der Non Assumpsit Page 105 
 
 OWNER. 
 See SHIP. 
 
 P. 
 
 PARISH. 
 
 In Trespass, Evidence to be given 
 of it 181 
 
 PARLIAMENT. 
 If a party's title is under a private 
 Act of Parliament, how proved 
 
 HI 
 
 PARSON. 
 
 What Evidence required in Ac- 
 tions for dilapidations 73 
 
 What Evidence of voluntary pay- 
 ment, and not recoverable 
 
 Page 61 
 
 Given in Evidence under Non. 
 Assumpsit, how 108 
 
 PEACE. 
 
 Breach of the peace, if party is 
 imprisoned, for what Evidence 
 is necessary 15& 
 
 What Evidence is required for 
 Constables, Watchmen, or Of- 
 ficers ibid. 
 
 PENAL STATUTE. 
 Day of offence committed, must 
 be given in Evidence 1 5 
 
 vidence in Actions on them 129 
 
 PEW. 
 
 Of the Evidence necessary in Ac- 
 tions for disturbance of a Pew 
 276 
 
 PARTNERS. 
 What Evidence required to 
 
 persons as partners 86 
 
 Partnership how proved ibid 
 How proved under Pleas in abate- 
 ment 88 
 
 PATENT. 
 
 Of the Evidence in case for in- 
 fringing a Patent, what proof What 
 required 278 
 
 What Evidence the Defendant 
 may give 279 
 
 PAWNBROKERS. See SURETY. 
 
 What Evidence is required in Ac 
 
 tions against them 267 
 
 What they may give in Evidence Probate of 
 
 in Trover 253 
 
 PAYMENT. 
 
 Payment of money into Court 
 
 what it establishes, and how 
 
 proved 
 
 PLACE. 
 
 fix Laid in Declaration, when neces- 
 sary to be proved 1 4 
 
 PLENE ADMINISTRAVIT. 
 What Evidence may be given 
 under it 133 
 
 POSSESSION. 
 
 proof required of it in Tro- 
 ver 243 
 
 PRINCIPAL. 
 
 PROBATE, 
 a Will, how and when 
 required to be given in Evi- 
 dence 135 
 
 PROPERTY. 
 Of the Evidence of Property in 
 Trover 245
 
 298 
 
 INDEX. 
 
 Evidence for the Defendant in the 
 same Action Page 250 
 
 PROTEST OF BILLS OF 
 
 EXCHANGE. 
 When necessary to be proved 3 1 
 
 PUBLICAN. 
 
 Evidence in case for selling of 
 
 bad wines or liquors 309 
 
 R. 
 
 RECEIPT. 
 
 For the price of a horse may be 
 Evidence of the agreement and 
 warranty 56 
 
 RECOGNIZANCES. 
 
 Evidences in debt on them 
 
 142 
 
 RECORD. 
 Matters of Record, how to be 
 
 given in Evidence 
 Evidence in Debt on matters of 
 
 Record 124 
 
 RECOVERY. 
 A recovery in another Action, 
 how proved in Trespass 1 92 
 
 REGISTER 
 
 Of ships, not Evidence of owner- 
 ship without other proof 82 
 
 Register of ships from the Cus- 
 tom-house, how far it is Evi- 
 dence 85 
 
 RELEASE 
 
 May be given in Evidence under 
 Non Assumpsit 108 
 
 Evidence of it in Covenant 148 
 If Trespass, how given in Evi- 
 dence 192 
 
 RENT. 
 
 Evidence in debt for rent in gene- 
 ral Page \2l 
 
 Evidence in debt for rent against 
 an assignee 136 
 
 Under statute 1 1 Geo. II. c. 19. 
 for double 122 
 
 Avowry for, what Evidence is 
 necessary 73 75 
 
 Where a demand must be proved 
 
 174 
 
 Exact amount need not be proved 
 
 ibid. 
 
 Of the Evidence in ejectment for 
 non-payment of rent 200 
 
 REPAIR. 
 
 Covenants on it, Evidence in 145 
 
 172 
 
 REPLEVIN. 
 Evidence in 
 
 REPRESENTATION. 
 
 1 6 False representation avoids a po- 
 licy of insurance 39 
 What shall be deemed so 40 
 
 RETAINER 
 
 By executor, when pleaded how 
 to be proved 132 
 
 RETURN 
 
 Of the Evidence against a Sheriff 
 for a false return 262 
 
 RIEWS IJV ARRERE. 
 
 When pleadable in replevin, and 
 how proved 175 
 
 RIOT. 
 
 It is a good justification for taking 
 a person into custody, that he 
 was making a riot 158
 
 1 X 1) K X. 
 
 299 
 
 SAILOR. 
 
 Evidence in Actions for then 
 wages Page 83 
 
 SALES. 
 
 The Evidence required in Actions 
 on sales. See goods sold 5 5 
 
 Evidence of sales by sample 57 
 
 Evidence, where by written con- 
 tract ibid. 
 
 Where by a broker 58 
 
 Evidence in Trover founded on 
 sales, where sold by a Factor or 
 Plaintiff himself 236 
 
 Evidence in Actions for stolen 
 goods 237 
 
 Evidence in Trover under bills of 
 sale 238 
 
 What is good Evidence to rebut 
 the presumption of fraud 239 
 
 Evidence in Actions for deceit in 
 sales 272 
 
 In debt under statute 29 Eliz. c. 4. 
 for an overlevy Page 127^ 
 
 [n Trespass dt bonia aafiortatia 
 against the Sheriff, what must 
 be proved 1 88 
 
 Evidence in Actions against the 
 Sheriff, respecting the property 
 of things taken in execution 
 
 189 
 
 Of the Evidence against him in 
 Actions on the Case 259 
 
 For him 26 1 
 
 See Rscafic Execution Palte 
 
 Return Writ. 
 
 SHIP. 
 
 SEDUCTION. 
 See FATHER. 
 
 SERVANT. 
 
 Case for seducing. See Master. 
 
 SERVICE. 
 
 Of notices, summonses, Sec. in 
 course of a Cause, what is suffi- 
 cient 15 
 
 SER7ITIUM jiMISIT. 
 
 Case,/iT quod servitium amisit in 
 case of battery of child 281 
 Of Wife 28 
 
 Of Servant 284 
 
 SET OFF. 
 
 Evidence under it, what 
 
 112 
 
 SHERIFF. 
 
 Of the Evidence in debt against 
 
 the Sheriff for an escape 1 26 
 
 
 Insurance on ship, how the Plain- 
 tiff 's interest is to be proved 
 
 37 
 
 The sailing of the ship on the 
 voyage insured, how to be prov- 
 ed 38 
 
 The loss to be proved, as stated 
 in the declaration ibid. 
 
 Master of the ship not a good wit- 
 ness to disprove barratry 42 
 
 Evidence in Actions by or against 
 Owners of ships for repairs or 
 wages 8 1 
 
 Property in ships how to be prov- 
 ed 82 
 the Sailor's article, how far they are 
 Evidence 83 
 
 Evidence against Owners in Ac- 
 tions for negligence 84 
 
 Same where they bring Actions 
 for freight, insurance or other 
 charges ibid. 
 
 SOL7JT AD DIEM. 
 
 How proved in an Action of debt 
 
 131 
 
 SON ASSAULT. 
 Evidence under that Plea 154
 
 300 
 
 INDEX. 
 
 STAMPS. 
 
 What are required, how to be 
 used in Evidence Page 1 8 
 
 Cases of inappropriate stamps on 
 deeds, with many parties 1 9 
 
 Stamps on bills or notes to be at- 
 tended to 35 
 
 "What agreements may be given 
 in Evidence without a stamp 
 
 48 
 
 STATUTES REFERRED 
 TO. 
 
 2 8c 3 Edw. VI. c. 13 
 29Eliz. c. 4. 127 
 ,21 Jac. I. c. 16. 193195 
 c. 19. 240 
 
 22 & 23 Car. II. c. 26. 188 
 5 Ann.c. 14. 128 
 8 Ann. c. 9. 191 
 c. 14. 314 
 
 10 Ann. c. 19. 191 
 
 4 Geo. II. c. 4. 199 
 2 Geo. II. c. 35. 83 
 
 5 Geo. II. c. 30. 95 
 
 11 Geo. II. c. 19. 184 
 24 Geo.-IL c. 57. s. 9. 95 
 34 Geo. II. c. 44. 152,161163 
 1 3 Geo. III. c. 80. Game 1 66 
 
 23 Geo. III. c. 70. 150.190 
 
 24 Geo. III. sess. 2. c. 47. 190 
 43 Geo. III. c. 141. In cases of 
 
 convictions 1 65 
 
 43 Geo. III. c. 145. 265 
 
 48 Geo. III. c. 149. 48 
 
 55 Geo. III. c. 44. 211 
 
 SURETY. 
 
 If a Surety pays money on ac- 
 count of his Principal, or Co- 
 Surety, Evidence in Assumpsit 
 to recover it 65. 70 
 
 SURGEON. 
 
 Of the Evidence in case against a 
 surgeon for unskilfulness 257 
 
 T. 
 
 TENANT. 
 
 If distrained on my head landlord, 
 and he pays the rent recovera- 
 ble under the count for money 
 paid to his landlord's use 
 
 Page 64, 
 See LANDLORD. 
 
 TENDER. 
 Evidence under the Plea of 111 
 Of rent when pleadable in bar to 
 avowry, how proved 1 75 
 
 TITHES. 
 Evidence in Actions for the sub- 
 traction of them 73 
 
 TOLL. 
 
 Evidence in avowry for Toll, 
 through, or traverse 177, 178 
 
 Same for Tolls of Fairs, Markets, 
 or Ports 178 
 
 Evidence in Actions for disturb- 
 ance of rights of Tolls 275 
 
 TRADE. 
 
 Usage of, how proved 77 
 
 TRESPASS. 
 
 Evidence in Trespass for break- 
 ing Plaintiff's close 1 80 
 
 Same where for taking his goods 
 
 ibid. 
 
 Evidence in Trespass for injury to 
 the land, what to be proved, 
 and what not ibid. 
 
 Evidence where abuttals are set 
 out 1 8 i 
 
 Of the Evidence in Trespass, as to 
 the parish, time, goods taken 
 and new assignment 182 
 
 Evidence in Trespass when laid 
 jointly ibid. 
 
 Of the Evidence in pleas of jus- 
 tifi cation of Trespass 1 83 
 
 What the defendant may give in
 
 INDEX. 
 
 301 
 
 Evidence on Trespass under the 
 plea of not guilty Page 184 
 
 Evidence in Trespass as it arise 
 out of a distress 18' 
 
 See FISHERY, GAME, SHERIEF 
 OFFICER OF EXCISE. 
 
 TRESPASS ON TPIE CASE. 
 Of the general Evidence in it 256 
 
 TROVER. 
 
 Evidence, what in all cases neces 
 sary 235 
 
 See SALES, BANKRUPTS. 
 
 Of the Evidence for the Defend- 
 ant generally 249 
 
 U. 
 
 USAGE. 
 
 See TRADE. 
 
 USE AND OCCUPATION. 
 
 WARRANT. 
 
 184 Demand of perusal and copy in 
 Actions against officers, how 
 proved Page 150, 162 
 
 Where the charge is in writing, 
 and a warrant granted on it, the 
 charge should be produced 159 
 How a justification, under a war- 
 rant, is to be proved 161 
 Warrant of committal by a Jus- 
 tice of Peace, when and how to 
 be proved 166 
 Warrants to officers of the Ex- 
 cise or Customs, how proved 
 191 
 
 WARRANTY. 
 
 False warranty avojds a policy of 
 insurance, Evidence as to it what 
 
 39 
 See HORSE. 
 
 Evidence in Assumpsit for use and 
 
 . occupation, when the letting 
 has been by the Plaintiff to the 
 Defendant 43 
 
 Evidence when the Plaintiff is the 
 heir, executor, administrator, or 
 devisee of the first lessee 44 
 
 Evidence, when assignee of him 
 
 45 
 
 If Defendant has paid rent 
 Plaintiff he cannot dispute his 
 title, how proved ibid. 
 
 What the Defendant may give in 
 Evidence in answer to the Ac- 
 tion 46 
 
 USURY, 
 
 Shall not avoid a bill or note in the 
 hand of a bonajide holder 33 
 
 May be given in Evidence under 
 Non dssumfisit 109 
 
 W. 
 
 WATCHMAN. 
 
 See CONSTABLE and PEACE. 
 
 WATER. 
 
 Of the Evidence in case for an in- 
 jury to a watercourse 276 
 
 WAY. 
 
 Of the Evidence in case for a dis- 
 turbance of a right of way 274 
 
 WILL. 
 
 to Of the Evidence in Ejectment 
 brought under Wills 209 
 
 What witnesses must prove 210 
 What Evidence Defendant may 
 give 212 
 
 What to show that the will is void 
 
 213 
 
 Evidence of a second Will set up 
 against the first 214 
 
 Evidence of the revocation of a 
 Will, by what means ibid. 
 Evidence of revocation by a Fine, 
 how proved ibid.
 
 502 
 
 I N D E X. 
 
 WITNESS. 
 The subscribing witness to any 
 
 instrument offered in Evidence, 
 
 must be called . Page 15 
 Who may not be witnesses in 
 
 cases of bankruptcy 94 
 
 Witness to a bond or other deec 
 
 must be always called 115 
 
 Exceptions to that rul.e 1 1 6 
 
 When to be called to prove a wil 
 
 and how 2 1 1 
 
 WORK and LABOUR. 
 What Evidence required undei 
 
 this count in Assumpsit 68 
 What ot the Plaintiff's trade or 
 
 business ibid 
 
 What Evidence the Defendant 
 
 may give in answer to the 
 Plaintiff's case Page 68 
 
 WRIT. 
 
 Of the Evidence where an officer 
 of the Sheriff justifies the im- 
 prisonment under a writ or pro- 
 cess 1 60 
 
 To show the true time of com- 
 mencing an Action, the Plain- 
 tiff's attorney should always 
 have the writ in court 1 62 
 
 When the original writ is suffi- 
 cient Evidence, and what when 
 an alias or pluries is offered in 
 Evidence ibid. 
 
 Of the Evidence in case against 
 the Sheriff for executing a writ 
 last delivered first 262