the premises in repair, and for re-entry by T. L. in default thereof: that the interest of W. B. vested by assignment in the plaintiff, and that the plaintiff, after the assignment, suffered the premises to be out of repair, and that they continued so up to the time of sale, so that the term might, at the option of T. L., be determined; and that the plaintiff, by reason of the premises, had not, at the time of the sale or afterwards, any valid title to the premises. The defendant pleaded also, that the plaintiff had not, at the time of the sale or at any time afterwards, any good and valid title to the premises, and did not deduce or make a good title to the defendant.

to sale under a power of sale in the mortgage: that before and at the time of the mortgage, the plaintiff held the premises under a lease from T. L., subject to a covenant by the plaintiff for repair, and a proviso for re-entry, or the cesser of the term, at the option of T. L., on breach of such covenant: that the plaintiff, before and at the time of the sale, had full knowledge of all the premises: that the defendant did deduce a good title to the premises, commencing with the lease, in all respects except this, that the premises. were out of repair, of which the plaintiff had full knowledge: that they were, at the time of the sale, in as good repair as at the time of the mortgage; and that T. L. had not re-entered or claimed to re-enter, or in any way avoided the lease:-Held, bad on general demurrer. Barnett v. Wheeler,

364

(See also, post, III, (1), 1; (2), (5).

III. Replication.

(1). De Injurid.

On special demurrer to these pleas, the former was held bad, as being an argumentative denial of the allegation in the declaration, that the plaintiff made a good title; and the latter, on the ground that, if the defendant meant to object to the validity of the lease, he ought to have confessed the allegation of title in the declaration as it stood, and then to have pointed the 1. Indebitatus assumpsit for work plea specifically to the objection that and labour, and for services in navigatthe lessor had no title. Wheeler v. ing certain barges for the defendants. Wright, Plea, that the claim was for wages due for services performed by the plaintiff as master of a boat used by the defendants for the carriage of goods, they being common carriers, and that the plaintiff was hired by them under an agreement, that, as master of the said boat, he was to be responsible for the safety and due delivery of all goods taken on board by him, and was to be chargeable for all pilferages of, or damage or losses to any goods under his

(s). Other Cases.

359

3. The declaration stated, that the defendant caused to be put up to sale by auction certain premises, for the residue of a term of years, on the condition, amongst others, that the defendant should deduce and make a good title thereto, commencing with the lease of the premises under which they were then held; and assigned as a breach, that the defendant did not de-charge; and that the amount thereof duce a good title commencing with the lease.

Plea, that the premises so put up to sale were premises of which the defendant was possessed under a mortgage from the plaintiff for the residue of the term, and that they were put up

VOL. VII.

should be deducted from his wages, and might be pleaded or set off accordingly. The plea then averred the delivery of a pipe of wine to the plaintiff on board the boat; and that, whilst it was so in the plaintiff's charge, the wine was pilfered and water substituted in lieu

said sum of 12l. 9s. 4d., was due upon the note; and that before the said tender, the plaintiff demanded payment of the said sum of 15l. 9s. 4d., which so included the 12l. 9s. 4d., but the defendant refused to pay the 15l. 98. 4d.;

thereof, whereby the pipe of wine was greatly damaged, for which damage the defendants were liable, and which damage amounted to a certain sum, &c., which far exceeded the amount of the causes of action in the declaration | mentioned. The defendants then claim- and that at the time of such demand ed to set off the loss they had thereby sustained, against the plaintiff's demand. To this plea the plaintiff re--Held, on special demurrer, that the plied de injuriâ:-Held, that the repli- replication was good. Cotton v. Godcation was improper. win,

and refusal, no set-off or other just cause for non-payment thereof existed:

147

Semble, that the plea amounted to the general issue. Cleworth v. Pick- (3). Traverse of immaterial Allegaford,

314

2. To an action by indorsee against acceptor of a bill of exchange, the defendant pleaded that it was accepted for a gaming debt, and that the plaintiff, before the indorsement to him, had notice thereof:-Replication, de injuriâ; -Held, good on special demurrer. Humphreys v. O'Connell,

tion.

Plea, to an action of covenant for rent due for turnpike tolls, that before it became due, the trustees, on &c., entered into and upon a certain part of the tolls, and then ejected, expelled, put out, and removed the defendant from the possession thereof, and kept 370 | and continued him so ejected, &c. from thence hitherto. Replication, that the trustees did not enter into or upon the said part of the tolls, or eject, &c. the defendant from the possession thereof, modo et formâ:-Held bad on special demurrer, as putting in issue not only the expulsion, which was the only material allegation of the plea, but also the entry, which was immaterial. Palmer v. Gooden, 486

(2). To Plea of Tender. Assumpsit by payee against maker of a promissory note for 15l. 9s. 4d., payable on demand; averring a demand on a particular day. Plea, as to £3, parcel, a set-off due at the time when the note was demanded, and ever since; concluding with a verification and prayer of judgment: and as to 127. 98. 4d., residue, that at the time of the demand the defendant tendered the plaintiff 12l.9s. 4d., and hath always, from the time of making his said promise, as to 121. 9s. 4d., been ready and willing to pay that sum, and now brings the same into Court, &c. ; concluding with a verification and prayer of judgment. Replication to the first plea, a traverse that any set-off was due at the commencement of the suit, on which issue was joined; to the second, that, before the making of the alleged tender, and before and at the time of the making of the demand and refusal hereinafter mentioned, a larger sum than 127. 9s. 4d., to wit, 157. 98. 4d., including the

(4). Duplicity.

Assumpsit by the indorsee against the acceptor of a bill of exchange, drawn by D. upon the defendant. Plea, that the defendant, by D., his agent duly authorized in that behalf, paid to the plaintiff, and the plaintiff then accepted and received of D. as such agent, a certain sum in full satisfaction and discharge of the causes of action. Replication, that the defendant, by D. his agent, did not pay to the plaintiff, nor the plaintiff accept or receive of D., as such agent, the said sum in full satisfaction and discharge of the promises in the plea mentioned:-Held, on spe

662 PRINCIPAL AND AGENT.

application at chambers, unless it be shewn on affidavit, even though the Judge, being in Court, certifies the fact. Goren v. Tute, 142 (5). Judgment as in case of a Nonsuit.

The affidavit, in answer to a rule for judgment as in case of a nonsuit, stated that the plaintiff, after filing the declaration, was given to understand that the defendant was insolvent, and therefore instructed his attorney not to proceed to trial:-Held, that this affidavit was not sufficient to compel the defendant to accede to a stet processus, but that he was entitled to a peremptory undertaking. Mann v. Williamson,

145

A distringas may issue after the expiration of four months from the issuing of the writ of summons.

A writ of summons was issued on the 5th of July, but it did not appear whether any attempt was made to serve

it or not. On the 5th of December,

an alias writ of summons was sued out, and the plaintiff not being able to effect service of it, obtained a distringas as for a non-appearance to the original writ of summons:-Held, that the distringas was not irregular. Pearce v. Swain,

PROCHEIN AMY.

543

The wife of a minor having committed adultery whilst her husband was abroad in the East Indies, the father procured himself to be appointed prochein amy, and commenced an action for crim. con. in his son's name, with

Liability of Committee-men of Club. A club was formed, by the regulations of which the members paid en-out his knowledge or authority, and retrance-money and an annual subscrip- covered a verdict. On motion to set tion, and cash was paid for provisions aside the proceedings, on the ground supplied to the house. The funds of of there being no authority from the the club were deposited at a banker's, son to bring the action:-Held, first, and a committee was appointed to ma- that as the defendant had reason to benage the affairs of the club, and to ad-lieve long before the trial, that the minister the funds, but no member of authority of the son could not have been the committee had authority to draw obtained, he ought to have made incheques, except three who were chosen quiries then, and that the application for that purpose, and whose signatures was now too late. Secondly, that no

authority from the son was necessary | should be paid to such persons, at such to enable the father to sue as prochein amy; and there being nothing to shew that he was not properly appointed prochein amy, that it must be assumed to have been properly done, and that the son would be bound by the judgment in this action. Morgan v. Thorne, 400

QUÆ EST EADEM.

See PLEADING, III. (5).

RAILWAY ACT. (1). Calls, when properly Pleadings.

times and places, as in the said notice should be appointed. A resolution of the directors was made for a call of £8 per share; but the resolution, although it mentioned the period within which the call was to be paid, did not specify the place where, or person to whom, the payment was to be made. The notice of that call, inserted in the local newspapers, according to the directions of the act, specified the time and place of payment and the persons to whom the payment was to be made :-Held, first, that the publication of the notice must be assumed to be the act of the

made-directors; secondly, that the call was properly made. The Great North of England Railway Co. v. Biddulph,

In an action by a Railway Company for calls, the declaration alleged that "the defendant subscribed for a large sum of money, to wit, £5000, towards the undertaking mentioned in the act," &c. The Company were empowered by the 3rd section of the act to raise a million of money for constructing and maintaining the railway; and by the 195th section it appeared that £660,000 had been subscribed for by several persons, under a contract binding themselves and their heirs, before the passing of the act. A motion having been made in arrest of judgment, on the ground that the declaration should have alleged a subscription by deed:-Held, that the declaration was good after verdict.

Semble, that it would have been also good on special demurrer.

By the 121st section, the directors were empowered to make calls, the aggregate amount not to exceed £100, and no call to exceed £10 upon each share, and an interval of three calendar months was to elapse between the days of payment of each call. It also required that twenty-one days' notice should be given of every call, by advertisement in certain newspapers, and enacted that all money so called for

243

(2). Calls, when properly made-Transfer of Shares, when valid.

The Sheffield and Manchester Railway Act, (7 Will. 4, c. xxi), by s. 115, empowered the directors from time to time to make such calls from the proprietors, on their respective shares, as they from time to time should find necessary, so that no call should exceed £10 on each share, and that there should be an interval of three calendar months between each successive call, and twenty-one days' notice should be given of every such call by advertisement in the local newspapers; and the proprietors were thereby required to pay the calls on their shares to such person, at such time, at such place, and in such manner, as the directors should from time to time direct or appoint. The directors made a resolution for a call, specifying therein the amount of the call, and the day of payment, but not the place where, or the person to whom, the payment was to be made; but a notice of that call subsequently inserted in the local newspapers, according to the directions of the act, specified all those matters. In