bankrupt; the particulars of de-
mand described it as had and re-
ceived to the use of the plaintiffs.
This is not such a variance as to
prevent the plaintiffs from recover-
ing, it not appearing that the de-
fendant could be misled by it.
Tucker v. Barrow, Page 137
3. An order was obtained for de-
livery of particulars of set-off with-
in a fortnight : they were not de-
livered for five weeks; but after
the delivery an order was made
by consent for the amendment of
the declaration. This is a waiver
of the irregularity in the delivery
of the particulars. Wallis v. An-
derson,
1. Where trustees have been changed
since the cause of action accrued,
and new treasurers have been ap-
pointed since the change of trus-
tees, an action can be maintained
in the name of the new treasurers,
under an act of parliament provid-
ing that actions may be brought by
the treasurer for the time being,
and that they shall not abate or be
discontinued by his death or re-
moval, and that the treasurer for
the time being shall always be
deemed plaintiff or defendant in
every action. Whitmore v. Wilks,
214
2. If a person colludes with one part-
ner in a firm to injure the other
"partners, those others can main-
tain a joint action against the per-
son so colluding. Longman v. Pole,
223
1. When a partner in trade, liable
for a sole debt contracted before
his partnership, and also liable for
partnership debts, pays money to
the creditor on account, the cre-
ditor cannot apply such payment
to the first debt, if the money paid
was in fact the money of the part-
nership. Thompson v. Brown,
Page 40
2. The non-joinder of a secret part-
ner cannot be pleaded in abate-
ment. Mullett v. Hook,
88
3. A party paying a deposit on shares
in a trading company, and after-
wards signing the deed of partner-
ship, is to be considered as a part-
ner from the time of his paying the
deposit. Lawler v. Kershaw, 93
4. Quare, if the mere payment of
the deposit, without the subse-
quent signature of the deed, would
make him a partner?
Ibid.
5. In an action for goods and work
applied in equipping a mine (the
defendant being charged as one of
a company concerned in working
it): Held, that the mere payment
of deposits, without any signature
of a deed, or interference in man-
agement, was not enough to make
her liable, unless the jury believed
from the evidence that an actual
conveyance of an interest in the
mine had been made to her. Vice
v. Lady Anson,
1. An account of the expences, of
rebuilding a party-wall, delivered
of
in pursuance
the
14 G. 3. c. 78. s. 41., containing a
correct statement if the quantity
of brick-work done and materials
allowed for, is a sufficient account,
as required by that section, al-
though it also contains a state-
ment of the price paid for the
brick-work and allowed for the
materials, which exceeds the price
fixed by the statute; and a de-
mand of payment referring to that
account is sufficient. Reading v.
Barnard,
Page 71
2. The defence relied on, being that
the party-wall was not built half
on each side of the boundary as re-
quired by s. 14. of the act: Held,
that the question for the jury was,
Whether it were fairly built so
without regarding any minute inac-
curacy of measurement, or unfairly
and intentionally encroaching on
the defendant's premises? Ibid.
1. A specification of a patent is to
be understood according to the
acceptation of practical men at the
time of its enrolment. Therefore,
when a specification stated that
the apparatus mentioned would ex-
tract gas "from any substance
from which gas capable of being
employed for illumination can be
extracted by heat," and the appa-
ratus was not suited to extract gas
from oil, it was held that this did
not avoid the patent, oil not then
being considered fit for the manu-
facture of gas for lighting towns,
though it was then known as a
chemical fact that gas might be
produced from oil by heat, and this
property has been since applied to
purposes of illumination. Crosley
v. Beverley,
Page 283
A pawnbroker received a parcel of
goods on one day, and on that and
several subsequent days he ad-
vanced sums of money, each not
exceeding 10l. as on different parts
of the parcel, and received pawn-
brokers' interest of three-pence in
the pound per month on those
sums: Held, that it was a ques-
tion for the jury whether this really
were one transaction, and a mere
contrivance for obtaining the higher
interest on the whole sum, in which
case it is void; or whether the ad-
vances were really distinct. Cowie
141
v. Harris,
promises by the testator, and the
other defendants must be dis
charged. Griffiths v. Franklin,
Page 146
3. The defendants received money to
the use of A. and B., assignees of
a bankrupt. B. is afterwards re-
moved, and A. becomes the sole
assignee, the money still remaining
in the hands of the defendants.
He may well declare as for money
had and received to his own use as
assignee, without mentioning B.
at all. Stewart v. Lee,
158
In an action for an escape, if the
defendant plead that it was by
fraud and covin of a person, unto
whom and to whose use and benefit
the judgment was assigned, this is
sufficiently proved by showing that
the judgment was assigned to the
use and benefit of that person, though
the assignment was in form made
to another. Hiscocks v. Jones, 269
5. On a plea by several executors
that they have fully administered,
if some are shown to have assets in
their hands, and the others not,
the latter are entitled to a verdict.
Parsons v. Hancock,
In an action of trespass for remov-
ing boards, on a plea of justification
that they obstructed an ancient
window through which the light
ought to pass, it is sufficient to
show that the window was one
through which the light ought to be
allowed to pass, though the win-
dow is proved to have been erected
within living memory. Penwarden
v. Ching,
7. The plaintiffs slept at different
houses, away from their places of
business, but a servant slept on the
premises of the latter. Semb. that
the place of business may properly
be described in the declaration as
a dwelling-house of the plaintiffs.
Johnson v. Lord,
In an action to recover the deposit
on the purchase of an estate on the
ground of a defect in the vendor's
title, specified on rescinding the
contract, no objection can be in-
sisted on at the trial which was
not stated as a reason for refusing
to complete the contract, if it be
of such a nature that it might, if
then stated, have been removed.
128
Todd v. Hoggart,
7. In ejectment, where each party
claimed as heir at law, and the
real question was as to the legiti-
macy of the defendant, who was
clearly heir, if legitimate; he pro-
posed to admit that, unless he were
legitimate, the lessor of the plain-
tiff was the heir at law: Held, that
this admission did not give him the
right of beginning. Doe d. War-
ren v. Bray,
166
8. The bail to the sheriff cannot
put in bail to the action before
the return of the process, without
the consent of the defendant.
Birt v. Roberts,
Page 177
S. P. Rex v. Hughes,
178. n.
9. The judge at Nisi Prius cannot
certify under the statute 5 G. 4.
c. 106. s. 21. (Welsh Judicature
Act), unless there be proof that
the defendant was in Wales at the
time of the service of the process.
Jones v. Kenrick,
10. Where a party tendered evi-
dence prima facie admissible:
Held, that the other party ought
not to be allowed to interpose with
evidence for the purpose of ex-
cluding it; but that it should be
received, and expunged if after-
wards shown not to be properly
receivable. Jones v. Fort, 196
Rex v. Wakefield,
197. n.
11. The time at which the acquittal
of one defendant may be taken is
in the discretion of the judge, and
may be before the examination of
the witnesses for the other de-
fendants. Carpenter v. Jones,
198. n.
12. An action to recover the deposit
on a bet on a wrestling match
ought not to be tried, though the
match had gone off, and the de-
fendant, a stakeholder, had pro-
mised to repay the money. Ken-
nedy v. Gad,
13. The plaintiff in ejectment is
bound to produce the rule to con-
fess lease, entry, and ouster, as
part of his case. Doe d. Lamble
v. Lamble,
14. In an action by the indorsee
against the acceptor of a bill of
exchange, the defendant may show
that the bill was originally given
without consideration, though he
has given no notice of disputing the
consideration. Mann v. Lent, 240
15. On a plea in abatement, to an
action on bills of exchange, of the
non-joinder of a joint contractor,
the defendant is entitled to begin.
Fowler v. Coster,
Page 241
16. In an action for a libel, when a
justification without the general
issue is pleaded, the defendant is
entitled to begin. Cooper v. Wakley,
17. In trespass for entering plaintiff's
dwelling-house and taking his
goods, on a plea justifying the
trespass by proceedings under a
commission of bankruptcy, and re-
plication taking issue on the act of
bankruptcy, the defendant is enti-
tled to begin. Cotton v. James,
273
18. The bail for the defendant may
be made a competent witness for
him, by the defendant's depositing
at the trial, in the hands of the
officer of the court, a sum equal
to the sum sworn to, and the costs
of the action, and the judge's
making an order thereupon to
strike the name of the bail off the
bail-piece. Baillie v. Hole, 289
19. An order was obtained for deli-
very of particulars of set-off within a
fortnight: they were not delivered
for five weeks; but after the deli-
very an order was made, by con-
sent, for the amendment of the
declaration. This is a waiver of
the irregularity in the delivery of
the particulars. Wallis v. Ander-
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