account stated. Pleas: first, to the first count, that the plaintiff never had any cause of action in the action in the Exchequer, which he well knew. Second, to both counts, that the original action was brought on two cheques, and that the Judge's order was made upon certain terms, (setting them forth,) that the promise in the first count mentioned was deduced from that order, and that the promise in the second count was deduced from the order ascertaining the amount of costs due on taxation, and that the order was afterwards set aside. Held, upon general demurrer, that the former plea was good, and, on special demurrer, that the second plea was bad, as amounting to the general issue.

Query, if it had been objected on special demurrer, that the former plea did not shew the defendant to be in a condition successfully to defend the action in the Exchequer, would the plea have been good? Wade v. Simeon,

587

14. A plea by one of two persons charged as executors, that the other is not an executor, is bad. Atkins v. Humphrey and Another, 612

15. A plea of payment by one of several makers of a joint and several promissory note, is supported by proving a payment of the note by one of his co-makers.

Payment and acceptance of the amount of a promissory note after it becomes due, and when the holder is entitled to nominal damages, support a plea of payment and acceptance in discharge of the debt and damages: consequently the holder, after such payment and acceptance, cannot maintain an action for such nominal damages. Beaumont v. Greathead, 631 16. A plea of ne unques executor may conclude to the country. Wood v. Kerry, Executor, &c. 642

17. In an action of trespass for breaking and entering the plaintiff's

dwelling-house, and seizing and laying hold of the plaintiff, the defendant paid money into Court. The plaintiff replied, damages ultra, upon which issue was joined, and a verdict found for defendant. On motion for judgment non obstante veredicto, Held, that the plea was good, inasmuch as by certain statutes, justices, and officers of the excise and customs, are enabled to pay money into Court in actions for trespass to the person; and that the plea need not state the particular character which they fill. Aston vi Perkes, 655

18. In an action of debt, where money is paid into Court as to part of the debt only, the plea given by the rule of Trinity Term, 1 Vict. is insufficient; it should be so framed as to answer the damages as well as the debt. Lowe v. Steel and Another,

662

19. In an action by the provisional committee of a railway company, the Court will not set aside a plea of release puis darrein continuance by one of the plaintiffs if the releasor has any interest in the concern, however small; unless a clear case of fraud be made out. Rawstone and Others v. Gandell and Another, 682

20. In an action for money had and received by several plaintiffs, the defendants pleaded, that before receiving the money the plaintiffs were in partnership, and that G., one of the partners, with the privity of the others, employed the defendants as auctioneers to put up to sale certain partnership property of the plaintiffs, which the defendants agreed to do; that at the time of such employment and sale the defendants believed G. to be the sole owner of the said property, and that they had no notice that the other plaintiffs had any interest therein; that the defendants sold the goods for the sums of money in the declaration mentioned; that after such employ ment, G. became indebted to the defendants for work and labour, &c.,

which debt was alleged by way of set-off: Held, on demurrer, that the plea was bad, as there was nothing to shew that the partner appeared as the sole owner with the consent or by the default of the other partners; it was therefore only an attempt to set off a debt due from one partner against a debt due to all. Gordon and Others v. Ellis and Another, 803

21. A defendant who has obtained a final order for protection under 5 & 6 Vict. c. 116, s. 4, may, under sect. 10, plead generally his protection, without setting out all the facts required to exist in order to procure the order. Cook v. Henson, 177

PLEA (IN ABATEMENT). See ABATEMENT.

PLEA (OF PAYMENT). See PAYMENT (PLEA OF).

PLEA (ISSUABLE).

To a declaration in assumpsit for money lent, money paid, and money due on an account stated, the defendant, who was under terms to plead issuably, pleaded, amongst other pleas, as to, &c., parcel, &c., accord and satisfaction, by an agreement by the plaintiff to give time in consideration of the defendant's undertaking to pay 4s. a week for interest until repayment of the principal, and to repay the principal as soon as his means would enable him, with an averment that the said rate of interest was different from and exceeded 5l. per cent. The plaintiff having signed judgment, as for want of a plea, Held, that the plea was an issuable plea within the terms of pleading issuably.

The declaration contained a count on a bill of exchange. The defendant paid money into Court thereon, and

pleaded to the residue of declaration as above. The plaintiff having accepted the money out of Court, Held, on its being objected that such acceptance was a waiver of the objection to other pleas as non issuable, that it was no such waiver. Verbist v. De Keyser, 392

PLEAS (SEVERAL).

To an action for libel in a newspaper, the defendant cannot plead not guilty to the whole declaration, together with a plea of apology and payment of money into Court, as to part, under the 6 & 7 Vict. c. 96. O'Brien v. Clements, 676

POOR RATE.

See WARRANT, 2.

PRISONER.

1. Where the Court directs a writ of habeas corpus ad subjiciendum to issue, with notice to a party interested in opposing the prisoner's discharge, and the latter is remanded to his former custody, the Court do not allow the costs of the opposition. In re Cobbett, 79

2. Upon habeas corpus to discharge a prisoner out of custody who has been committed by virtue of an order of magistrates, under the 8 Vict. c. 8, s. 25, (the Mutiny Act) for assisting to conceal a deserter; notice of the rule should be served upon the secretary at war. Ex parte Gale, 114

3. A prisoner, who, at the time of a vesting order made by the Court of Insolvent Debtors on the petition of a creditor, was entitled to his discharge, on the ground of the lapse of a year without the plaintiff's having declared against him, is entitled to his discharge, notwithstanding the 41st section of 1 & 2 Vict. c. 110. Hallett v. Cresswell, 561

KKK 2

PRODUCTION OF DOCUMENT.

The plaintiff brought his action on an agreement with the defendants to pay him a sum of 51. per horse power for every steam engine they should contract to be made on his patent principle. The declaration stated that they had contracted with Messrs. F., W., and Co., for the making of a steam engine on the plaintiff's patent principle; but had refused to pay the plaintiff 5. per horse power. The plea traversed in terms that the defendants had 80 contracted with Messrs. F., W., and Co., on which issue was joined. The Court made absolute a rule calling on the defendants to produce at the Stamp Office, for the purpose of being stamped, a letter written by Messrs. F., W., and Co., in reply to a former letter of the defendants, containing evidence of a contract for the manufacture by Messrs. F., W., and Co., of a steam engine for the defendants, on the plaintiff's patent principle. Hall v. Bainbridge and Another,

PROMISSORY NOTE.

See REPLICATION, 3.

92

PROTECTION (FROM ARREST). See BANKRUPt.

PUIS DARREIN CONTINU-
ANCE.
See PLEA, 19.

QUALIFICATION. See DECLARATION, 1.

QUARTER SESSIONS.

See NOTICE OF Appeal, 2.

1. Where an order of removal was executed on the 27th of March, and the next Easter Sessions were held on the 9th of April, consequently less than fourteen days after the removal, and the appellants took no notice of those sessions, but entered and respited their appeal ex parte at the Midsummer sessions, and gave the regular notice, &c., for the Michaelmas sessions, at which sessions the appeal was entered and determined: Held, that the sessions had jurisdiction over the appeal to hear and determine it, and that the appellants were not bound to have entered and respited at the Easter sessions, or to have given notice of appeal for the Mid

summer sessions.

2. The 7 & 8 Vict. c. 101, s. 4, requires notice of appeal against an order in bastardy to be given within twenty-four hours "after the adjudication and making of any such order." On an appeal coming on to be heard, it appeared that the order, a copy of which was served on the putative father, was dated on the 24th of June, and that the service on the putative father was on the 27th of June, who, within twenty-four hours afterwards, gave notice of appeal. It was objected that this notice was too late; whereupon the appellants offered to prove that the order was not drawn up or signed till the 27th of June, and that the notice was consequently in time: Held, that the sessions acted wrongly in refusing to receive this evidence, and the Court granted a mandamus to compel them to do so. Regina v. Justices of Flintshire, 537

RAILWAY.

See MANDAMUS, 2.

RAILWAY SHARES.

See BAIL.

READINESS AND WILLING

NESS.

See PLEA, 8.

REASONABLE TIME. See DECLARATION, 8. PLEA, 10.

REFERENCE.

See VERDICT.

REGULE GENERALES. (See p. 833).

REJOINDER.

To a declaration on a promissory note, dated 15th of April, 1845, the defendants pleaded, that at the time the note was made and signed by them, they promised to pay the sum therein mentioned, without specifying any time for payment: that after the note was made and issued, and was complete and delivered to the plaintiff, the note was, by consent of the defendants, but without the same being restamped, altered by the plaintiff in a material part, by making the same payable on or before the 15th of April, 1845..

Replication that before and at the time of making and issuing, and completing the note, and before the alteration was made, it was meant and intended by the plaintiff and the defendants, that the note shall be payable on the 15th of April, 1845, but by mistake the note was made and issued, and complete, without specifying any time for payment: that the alteration was made for the purpose,

and with the intent of correcting the mistake.

Rejoinder, that before and at the time of the making of the note, it was not meant and intended that the note should be payable on the 15th of April, 1845.

Held, that the rejoinder was bad, for putting in issue the intention of the parties before, as well as at, the time of making the note.

Held also, that the plea was bad, for not shewing that the alteration was made under circumstances which rendered the note invalid unless restamped.

Semble, that the replication was also bad, for not shewing that the note was not complete at the time of the alteration.

Quære, whether the Stamp Acts can be pleaded, unless the want of a stamp renders the instrument void? Bradley v. Bardsley and Another, 476

RELEASE. See PLEA, 19. REPLICATION, 10.

RENDER.

See DECLARATIon, 7.

RENEWED APPLICATION. See ATTACHMENT, 2.

RENT.

See REPLICATION, 8.

REPLEVIN BOND.

See PLEA, 7.

REPLICATION.

1. To a declaration of trespass quare clausum fregit, containing a count for an assault; the defendants pleaded,

inter alia, lib. tenem. in J. W., and a justification, on that ground, of the trespass, and that because the plaintiff "was unlawfully in possession," the defendants, as servants of J. W., and by his command, ejected her; and in so doing, because she resisted, committed the assault. The plaintiff replied that she was lawfully possessed, and was lawfully entitled to her possession as against the defendants; with a special traverse, that the plaintiff was unlawfully in possession or occupation: Held, on special demurrer to the replication, that the plea was substantially one of liberum tenementum, and therefore bad, as attempting to justify an assault. Roberts v. Taylor and Others,

1

2. The declaration also contained count de bonis asportatis. The defendant pleaded inter alia, lib. tenem. in J. W., and that J. W. leased the premises to the plaintiff, with a proviso for re-entry for non-repair: that the premises were out of repair, and that the defendants entered as the servants of J. W., and because the plaintiff was unlawfully in possession, &c. (as in the above plea); and also justifying the removal of the goods of the plaintiff, which were wrongfully placed on the premises, to a convenient distance, doing no damage to the same. The plaintiff replied as to so much of the plea as related to the last count in the declaration, that after the removal of the goods, the defendants converted them to their own use: Held, on special demurrer, that the replication was good, Ib.

3. Plaintiff declared in debt on a bond, conditioned for the payment of 10007. on a day certain in pursuance of the terms of an indenture of even date therewith; and for the performance of the covenants contained in that indenture. The defendants pleaded generally performance of all things mentioned in the condition. The re

plication denied the payment of the sum of 1000l. modo et formâ and concluded to the country: Held, upon special demurrer to the replication, that its conclusion was proper; since to make the plea good, it must be taken to allege that the money was paid on the day mentioned in the condition.

Semble, that the plea would have been bad on special demurrer, if not general demurrer. Roakes v. Manser and Others, 17

4. To assumpsit by payee against maker of a promissory note, the defendant pleaded that the note was given for a judgment debt, and that there never was any other consideration. Replication de injuriâ. On demurrer to the replication: Held, that both plea and replication were bad. Baker v. Walker, 46

5. Assumpsit by the assignees of P., a bankrupt, on a policy of insurance made by P., before his bankruptcy.

Plea as to 781., that the policy was made in Scotland, that the said sum was duly fenced and arrested according to the law of Scotland, at the suit of G., for a debt due to him; that thereupon the said sum became and was, according to the law of Scotland, in custody of the law; that afterwards G. obtained judgment, which was final G and conclusive against P. and the plaintiffs as his assignees; and that by the law of Scotland all right and claim of P. to the said sum have been, and still are, by reason of the premises, wholly barred, defeated, and destroyed; and the plaintiffs, as assignees, never acquired any right or title thereto.

Replication, that the defendants broke their promise of their own wrong; without this, that all right and claim of P. to the said sum is wholly barred, and that the plaintiffs, as assignees, never acquired any right or title thereto : Held bad for duplicity. M'Leod and Another, Assignees