contradictory to two other pleas. Wilkinson v. Small, 214. An allegation of a contract that work was to be completed within fourteen days before Michaelmas-day, is not supported by evidence of an agreement to complete the work fourteen days before Michaelmas-day. Thomas v. Lambert, 224. Where lands were let by auction, subject to conditions of sale, and a memorandum of the terms was signed by the auctioneer and the tenant, and underneath there was a signature of approval by the owner, and a direction to pay the rent into the hands of the auctioneer: In an action of use and occupation brought by the auctioneer against the tenant, in which a verdict had been found for the plaintiff, the Court granted a new trial, upon the ground that the case had been left as an entire question of fact, without the attention of the jury having been called to the legal fact of the memorandum. Evans v. Evans, 239. Semble, that in such a case the auctioneer could not maintain use and occupation. Id. A sum of money was delivered by the plaintiff to the defendant to carry to a particular place, and there to pay to a certain person for the plaintiff. The defendant took the money, but in answer to the inquiries of the plaintiff on the subject, said that he had lost it:-Held, that assumpsit for money had and received was maintainable on proof of these facts merely; though it was objected that the proper form of action was a special action for the negligence. Barry v. Roberts, 242. An appointment of clerk to a public company, was by a resolution which stated the salary to be 2001. per annum, but said nothing as to the period of payment; the clerk acted as such, and was paid several sums of 50l. each, at periods just after the usual quarter days of the year:-Held, that proof of these facts warranted a declaration in an action for salary, which alleged the contract to be at a salary of 200l. per annum, payable quarterly, on the usual quarter days. Ridgway v. The Hungerford Market Company, 244. Quare, whether a special action is not necessary to enable a yearly servant to recover wages, where the contract is put an end to before the year is expired. Id. A plea to an action of debt on a demise for rent, that long before the time of the demise made, the plaintiff had been discharged under an Insolvent Debtors' Act, and had been permitted by his assignee to remain in the possession and management of premises, and to make the demise in question; but that before any of the rent became due, the assignee gave a notice claiming to have the rent paid to him, whereby the defendant became liable to pay to the assignee, the reversion not being vested in the plaintiff, and his right having, by reason of the notice, become determined-was held bad on special demurrer. Partington v. Woodcock, 262. A plea of defence to the said supposed cause of action in the declaration mentioned, if any such there be, is bad on special demurrer, because the qualifying hypothetical expression prevents it from being a confession. Margetts v. Bayes, 685. A plea to an action on a bill of exchange, that after it became due the defendant paid the amount, and that the holder never sustained any damage by reason of the non-payment thereof, at maturity, concluding to the country, was held bad on special demurrer; and semble, that such a plea would not be good even if it concluded with a verification, unless it went on to allege that the payment was accepted in satisfaction. Chapman v. Vandevelde, 685. It is no cause of demurrer to commence a declaration with the old statement, that the defendmode of declaring is the proper form when the ant is in the custody of the Marshal. Such a action was commenced in an inferior court, and has been removed; because the Uniformity of Process Act, and Rules made on it, do not apply to such a case. If such a mode of declaring be adopted in an action which was not commenced in an inferior court, although the declaration would not be demurrable, it would be good ground for moving to set it aside for irregularity. Dod v. Grant, 711. In an action by the second indorsee against the payee and indorser of a note, a plea " that the defendant never had any consideration for indorsing the note, and that the first indorser indorsed it to the plaintiff without any consideration, and that the plaintiff always held it without any consideration," is bad on demurrer. Trinder v. Smedley, 309. A defendant in custody of the Marshal cannot be charged in execution by a plaintiff in another suit, by a side-bar rule to the Marshal to acknowledge him in custody. Smith v. Sir E. B. Sandys, Bart. 377. A proceeding to charge a defendant in custody by a side-bar rule, where he is not in custody in the particular suit, is not merely irregular, but is wholly void and inoperative, and is not waived by lapse of time. Id. A defendant so charged in execution is estopped from saying that he was not properly charged in execution by writ of habeas corpus, although the record of commitment alleged that he was brought up and charged in execution in the particular suit; and the form of the record is the same whether the defendant is charged in execution by habeas corpus or by side-bar rule. Id. A plaintiff may declare de bene esse when a bail-bond has been taken, and special bail has not been put in within eight days after the arrest. Hodson v. Mee, 398. The Court refused to allow a plea that the defendant had probable cause, together with a plea of not guilty in an action for a malicious prosecu- | off the file on the writ of error being quashed. tion. Cotton v. Brown, 419. An instrument was made whereby the defendants promised to pay to the plaintiff or order a sum certain by instalments, but it was thereby declared "that it was thereby considered and fully intended by the receiver as well as the giver of that note of hand, that all installed payments thereupon whatsoever, from and immediately after the decease of the plaintiff, should cease and become null and void to all intents and purposes against the executors, &c. A declaration described the instrument as an agreement or instrument in writing:-Held, that a plea that the defendants did not make the said supposed promissory note in the declaration mentioned, was bad on special demurrer. Worley v. Harrison, 426. Such an instrument is not a promissory note, being payable only on a contingency. Id. Quare, whether a plea which is in effect only an answer to the first count of a declaration, is not bad on special demurrer, if it begin as an answer to the whole action. Id. In an action of covenant, if the defendant pleads payment to the plaintiff on the record, who is only the nominal party to the suit, there being no fraud alleged, the Court will not take the plea off the file. Gibson v. Winter, 436. A replication to a plea to trespass de bonis asportatis, justifying the removal of the chattels because they incumbered a close, as to a part of the goods de injuria, and as to other part extra force and violence, was held good on special deVivian v. Jenkins, 468. murrer. Such a replication may afford a several answer to different portions of the chattels. Id. If one answer be insufficient on demurrer, it will not affect the validity of the others. Id. A replication of de injuria to a plea setting out a title by demise, giving colour to the plaintiff, and justifying as a servant, in trespass quare clausum fregit, is bad. Id. A replication of excess to a plea in trespass de bonis asportatis, justifying the removal of chattels, damage feasant, required, before the new rules H. T. 4 W. 4, a prayer of judgment; and the objection that there was no such conclusion might be taken on special demurrer. Id. Declarations must be intituled on the face with the name of the Court. Ripling v. Watts, 525. If a plea is a good plea when pleaded, but by the occurrence of subsequent matter becomes no answer to the action, the Court will not on that account direct it to be taken off the file; therefore, where to a sci. fa. to revive a judgment, the defendant pleaded the pendency of a writ of error, the Court refused to direct that plea to be taken Snook v. Maddox, 584. Where a plaintiff relies upon a mercantile custom to support his claim for commission to a certain amount, the defendant may, without any special plea, produce evidence to show that under half that amount; the evidence being offered to certain circumstances the custom is to pay but show that the contingent reduction was part of the original contract, and not that it was a subsequent alteration so as to create a new contract. Broad v. M'Aylmer, 532. Nothing can be pleaded to a scire facias on a judgment, which might have been pleaded to the original action. Baylis v. Hayward, 609. In a proceeding by scire facias on a judgment, a plea of bankruptcy of the plaintiff must show distinctly that the bankruptcy happened at such a time that the defendant had no opportunity of pleading the fact to the original action. Id. A plea which left it uncertain whether the bankruptcy happened subsequently to the judgment, was held bad on special demurrer. Id. Indebitatus assumpsit for work and labour, money paid, and on an account stated. Plea, as to 20., parcel of the monies in the first two counts mentioned, and as to 201., parcel of the money in the last count mentioned, that the said two sums were the same debt, and then payment in satisfaction of the 201.:-Held, on special demurrer, that this plea was bad, for not stating how much of the 201. due on the account stated was applicable to the count for work and labour, and how much to the count for money paid :Held, also, that it was unobjectionable on account of the averment of identity, as that averment merely amounted to an allegation that the sum due on the account stated was due on the same cause of action as the sums mentioned in the first two counts, which is allowable by the new rules. Mee v. Tomlinson, 614. A plea of set-off of a smaller sum than that to which the plea is applied, is bad. Id. A plaintiff may still reply nil debet to a set-off, notwithstanding the rules H. T. 4 W. 4, II. 2, 3. Brown v. Daubeney, 646. If he replies never indebted, he cannot give payment in evidence. Id. The Court allowed the defendant to add a special plea, stating that a certain contract was not in writing, it being uncertain whether that could be given in evidence under the general issue. Smith v. Dixon, 668. Declaration on a bill of exchange, describing it as drawn by one J. S. on J. W., indorsed by the said J. S. to the defendant, by the defendant to the said J. S., and by the said J. S. to the plaintiff. Plea that the plaintiff, without the knowledge of the defendant, took from the said J. S. a cognovit in an action brought by the plaintiff against the said J. S., and so gave him time, whereby defendant was discharged. Held, that the plaintiff must be considered, from the statement in his own declaration, to have known that J. S. who drew the bill was the same person with J. S. who indorsed it to him, and that his taking a cognovit from such a person was a discharge of the defendant, who was in fact a subsequent party to the bill. The omission in the plea to state that the cognovit was given before action brought, or to state when it was given, so as to show whether the plea ought to have been in bar of the action generally, or only in bar of the further maintenance of the action, is only ground for special demurrer. Hall v. Cole, 722. PLENE ADMINISTRAVIT.-See EXECUTOR. POOR.-See APPRENTICE. LUNATICS. A pauper agreed to work for a master for a twelvemonth at 4s. a week, to work ten hours a day, from five o'clock in the morning till six in the evening, and to leave off the middle of the day on Saturday, so as to make up the ten hours a day; About a month after entering into the service, it was agreed that the pauper should receive one penny per hour for over-hours. The pauper worked over-hours at his master's request; and sometimes on Sundays, for which he was paid; and he kept an account of his over-time by the direction of his master:-Held, that this was an exceptive hiring, which would not confer a settlement. Rex v. Norton Bavant, 149. The nature of the tenure of an office to confer a settlement must be annual. The office of assistant petty constable, under the Cheshire Constabulary Act (10 Geo. 4, c. 97,) is not an annual office, therefore a general appointment to that office is not sufficient to give a settlement, though the pauper served the office for upwards of fifteen months. Rex v. Middlewich, 152. Semble, that if the appointment had been specifically for a year, it would have been sufficient. Id. The parish of F. and the town of F. were coextensive, and more extensive than the manor of F. B. which was within them, as well as four other manors; but there was no paramount manor. There were two pounds in the parish, one in the manor of F. B. and the other in one of the other manors. The pauper residing under a certificate in the parish of F. was appointed to the office of pinder for the town of F. by the homage at a court baron of the manor of F. B., and was duly sworn to execute the office, which he did for two years-Held, that he was not legally placed in the office so as to acquire a settlement by serving an office. Rex v. St. Mary, Newmarket, 154. Quare, whether the office of pinder of a manor be a public annual office sufficient to confer a settlement? Id. It is not by the 4 & 5 W. 4, c. 76, s. 79, compulsory on an appellant parish against an order of removal, to give notice of appeal within twentyone days after notice of the order of removal being made. Rex v. The Justices of Suffolk, 618. It is to be presumed that notice has been given to the overseers of the parish in which a parish apprentice is bound, according to 56 G. 3, c. 139, s. 2, before the allowance is made by the justices; and it is not necessary for a party who relies upon the indenture at the sessions to prove that such notice has been given. Rex v. The Inhabitants of Whiston, 696. Such notice is necessary. Id. An occupation of a house by a person who was in the habit of taking in labouring people to sleep in some of the rooms, sometimes letting a bed, sometimes half a bed, the letting being generally by the night, but sometimes by the week, is, notwithstanding, an actual occupation within the 1 W. 4, c. 18. Rex v. St. Giles's in the Fields, 693. apprenticeship was 107. paid to the master by a By the regulations of a prison, the appointment of the turnkeys and assistants employed was vested in the keeper, subject to the confirmation and approbation of the visiting justices. The salary was annual, and paid by the treasurer of the county, but in all other respects the turnkeys were under the immediate orders of the keeper, who had the power of suspension, but could not make a new appointment until an inquiry had been instituted by the visiting justices:-Held, that no settlement by hiring and service was gained by a turnkey so appointed. Rex v. Sparsholt, 692. A pauper hired a tenement for a year: upon the expiration of a year he assigned all his stock, crops, implements, and personal property to a trustee, for the benefit of his creditors. The trustee paid the year's rent out of the proceeds of the sale of that property; and the pauper continued to occupy the house only for the whole year: -Held, that as the assignment of the crops gave a right of entry on the lands, there was no sufficient occupation by the pauper to gain a settlement:Held also, that the payment of the rent by the trustee out of the proceeds of the sale was not a sufficient payment of the rent by the pauper, as the person hiring the tenement. field, 697. Rex v. Pake A boy was apprenticed by the trustees of a charitable fund, and a premium of 157. paid out of that fund. Before the expiration of the term, the master, at the request of the apprentice, verbally and without the knowledge of the trustees, consented to his serving the remainder of his term with another person; and agreed to give that person "67. as part of the 157. paid as a premium on the binding"-Held, that the 6l. was a valuable consideration paid to the second master, "other than what was given by any public charity," and therefore that the transfer was void for want of a stamped assignment. Rex v. Fakenham, 222. To do away with a birth settlement by proof of the mother's settlement, it is not necessary to show previously that the father's settlement cannot be found. Rez v. St. Mary, Leicester, 330. A case established by prima facie evidence, may be answered by another prima facie case of a stronger character. Id. The daughter of Irish parents born in England, of the age of 18, who had acquired no settlement, became chargeable, and applied for relief:— Held, that she could not be removed to the parish where she was born; for that relief to her was relief to her father, which made the whole family removable to Ireland, under 3 & 4 W. 4, c. 40. v. Mile End Old Town, 551. Rex The 3 & 4 W. 4, c. 40, is not repealed or altered by the 4 & 5 W. 4, c. 76, so that the law as respects relief given to the children of Scotch or Irish parents, as regulated by the former statute, is not altered by the latter. Id. A pauper was committed to gaol on a charge of bastardy for want of sureties. The father of the girl became his surety, and he was let out, and returned immediately from the gaol to W. On coming to W. the father took lodgings for him at W. The pauper having resided about a week in the lodgings married the girl, and continued to reside in the same lodgings until he was removed from W. The sessions quashed the order, on the ground that the pauper had not come to inhabit in W. within the meaning of the statute 13 & 14 Car. 2-Held, on a case stating the above facts, that the finding that the pauper did not come to inhabit was not conclusive to prevent the Court from considering the question whether or not the facts stated showed a coming to settle within the statute:-Held, also, that there was a coming to settle within the meaning of the statute. Per Patteson, J. and Williams, J.; Coleridge, J., dissentiente. Rex v. Woolpit, 483. A pauper's mother applied to a carpet-weaver to take the pauper into his employment. The master agreed with her to take him for two years on trial, after which, if the pauper and master agreed, the pauper was to be apprenticed. He was to be found in board, lodging, and washing by the master, but was to have no wages, except what the master pleased to give him as pocketmoney. He was to draw. At the sessions, it was stated by a magistrate, and assented to, that every carpet-weaver is taught the art of drawing as a draw boy: the chairman left it to the opinion of the Court whether the contract was an imperfect contract of apprenticeship, or of hiring and service, and the Court found that it was an imperfect contract of apprenticeship:- Held, on a case stating the above facts, that the sessions were right. Rex v. Great Wishford, 489. Since 1 W. 4, c. 18, there must be an actual occupation of the whole tenement by the party hiring it, in order to confer a settlement by renting a tenement: where a pauper took a messuage consisting of two tenements, at a rent of 60l. payable half-yearly, and during the year's occupation underlet three rooms to a person who had the exclusive occupation of them for three weeks, for which he paid 81., and a front shop to another person, who had the exclusive occupation of it for a week, it was held that the pauper did not gain a settlement. Rex v. St. Nicholas, Colchester, 47. Quare, whether a payment of rent by means of a distress on the goods of the party hiring the tenement, is sufficient to satisfy the 1 W. 4, c. 18. Id. Where a man having a leasehold interest, died intestate, leaving the pauper and three other sons; and one of the sons having taken out letters of administration, the four brothers joined in mortgaging the estate; and afterwards the pauper, by verbal agreement only, parted with his interest in the equity of redemption to one of his brothers for a consideration paid, and subsequently joined with his other brothers in an assignment to him: Held, that the pauper parted with his interest in the equity of redemption by the verbal agreement; and therefore could gain no settlement by estate by virtue of a residence in the parish where the estate was, after the verbal agreement, but before the assignment. Rer v. Cregrina, 53. Where a pauper was bound apprentice to J. M. and W. M., two partners in Exeter, who afterwards dissolved partnership, and W. M. never afterwards interfered with the pauper, who continued with J. M. and a new partner in the business at Exeter, but resided at Tiverton, where they also carried on business; immediately after the death of J. M. the pauper returned to Exeter, and continued in the business there, until he afterwards entered into an arrangement with the new partner:-Held, that the service in Exeter, after the death of J. M., was not a service with the consent of W. M., the surviving partner under the indenture, so as to confer a settlement in Exeter. Rex v. St. Martin, Exeter, 69. A residence under an order of suspension cannot be taken into the account in the computation of the period of occupation, in order to gain a settlement by renting a tenement. Rex v. St. John at Hackney, 39. An effective member of a volunteer corps inrolled under the 44 Geo. 3, c. 54, was not sui juris so as to be competent to make a valid contract of hiring, to give him a settlement by hiring and service. Rex v. Witnesham, 43. POOR RATE. By a clause in a canal act tolls were not to be rated, and the company were to be rated from time to time for and in respect of the lands taken, and the warehouses and other buildings to be erected by the company, "in the same proportion as, but not at any higher value or improved rent, than other lands, grounds, and buildings, lying near or adjacent thereto, are or shall for the time being be rated, and as the lands, warehouses, and other buildings so taken and erected would have been ratable in case the same had been continued in their former state, and not been used for the purposes of the said navigation:"-Held, 1st, that the proper mode of laying a poor's rate on the company was according to the fluctuating value of adjacent lands and buildings, and not according to their value at the time of the formation of the canal; and 2dly, that the increased value is to be taken for the time being from whatever source it may arise, and not that the increase arising from the canal itself is to be omitted. Rex v. Monmouthshire Canal Navigation Company, 464. The proprietors of a river navigation formed under an act of parliament, are ratable to the relief of the poor in every parish through which it passes, in proportion to the profits derived from the navigation in such parish. Rex v. Woking, 539. The proprietors of a river navigation running through several parishes were entitled to claim a toll of 4s. The trustees fixed the tolls at 4s. for the whole distance, and at different decreased rates for fixed portions only of the whole distance:Held, that in calculating the sum at which the proprietors were to be rated in any one parish, the proportion was to be ascertained on a mileage calculation with respect to the whole distance as regards the thorough trade; and on a mileage calculation with respect to the distance gone over as regards the short trade, excluding in the latter case all trade in parts in which the particular parish was not situated. Id. In calculating the amount of profit, a deduction for the necessary repairs and expenses must be made, the proportion of the particular parish being ascertained where the repairs are equal throughout the whole distance, by a mileage calculation. Id. So a reasonable sum must be deducted for tenants' profits. In this case 10l. per cent. was allowed, that being found by the case to be a reasonable sum. Id. No deduction is to be made in respect of sums payable by the act of parliament as compensation to persons injured by the navigation, out of the profits of the undertaking; such sums being only in the nature of rent charges, and not affecting the value of the occupation. Id. A parish consisted of several townships: some in one county, which always maintained their own poor apart from each other and from the rest of the parish others, in another county, which formerly maintained their poor jointly, and so continued till 1832, when one of them obtained a mandamus to appoint separate overseers of the township. In 1816, an order was made on the parish at large, describing it as "the parish of H. O., in the county of S." (the county last referred to) and was unappealed against:- Held, on an appeal against an order of removal in 1834, from a third parish to the separated township, that the latter was not estopped from giving evidence to show that the pauper was not settled in that particular township. Dubitante, Patteson, J. Rex v. Oldbury, 554. By an act of 6 Geo. 2, forming a company of proprietors of a river navigation, it was declared that they were not to be taxed or assessed for the same, or the profits thereof, at any place except S. or D. By another act, 2 Geo. 4, new cuts or canals, alterations and works were made; and it was declared" that all and every the provisoes, directions, restrictions, penalties, and forfeitures in the former act, respecting the boatmen, the owners, commanders, masters, or rulers of boats, keels, or vessels, or other persons employed thereon, or passing the locks, or making obstructions thereon, or in any other respect relating thereto, or for the benefit or protection of the said navigation, and all other powers and authorities therein contained, should extend and be applicable to the said new cuts or canals, alterations and works, as fully in every respect as if the said cuts, &c. had originally been part of the said river navigation, and had been inserted in the said several and respective acts:"-Held, upon both acts taken together, that lands taken for cuts under the latter act, were part of the river navigation, and not liable to be rated to poor rates elsewhere than in S. or D. Rex v. Barnby Dun, 89. |