De injuria does not put in issue the intention with which an authority given by law is exercised. New assignment. ed, 1st, not guilty; and secondly, as to the assaulting, beating, and ill-treating, that the plaintiff, a female, came into his house, created a disturbance there, and refused to leave it on being requested so to do, whereupon the defendant, moliter manus, &c.; held, that this plea was no justification of the striking and wounding with the truncheon a. P. 1421. Where to trespass for an assault, the defendant pleaded that the plaintiff created a noise and disturbance in his house, and that in defence of his possession he gently laid his hands on her, &c.,-replication de injuriá; held, that upon this issue the motive or intention with which the defendant committed the assault, whether it was from a previous feeling of hostility, or from a sudden transport of passion, could not be enquired into, and that the defendant was entitled to a verdict on proving the facts stated in his plea; for as it thereby appeared that he did no more than he was by law authorized to do, his conduct was justified, whatever might have been his motive b. P. 1426. In an action for a disturbance of a right of common, if the defendant justifies under a right of common for his cattle, levant et couchant, the plaintiff must new assign if he intends to prove a surcharge c. 791. Oakes v. Wood, 2 Mees. & Wels. Id. See Lucas r. Nockles, 4 Bing. 727. 10 Id. 157. 7 Bligh, N.S. 140. 1 Clark & Fin. 438., where it was laid down that the virtute cujus was traversable where it involved a matter of fact, but not where it involved a mere matter of law. Parke, B., in delivering the judgment of the court in the principal case, said, "If the case of Lucas v. Nockells, had established the general proposition, that the motives and intention with which an authority given by law was exercised, could have been enquired into on the general replica tion de injuriâ, we must have held, that such course must be pursued in all cases, though it might be at variance with the supposed rules of law existing before. But we do not find any such general proposition established either by the opinion of the judges or the judgment of the House of Lords; that case, therefore, cannot be considered as an authority for the general proposition, that motive and intention can be the subject of enquiry on the general traverse." 2 Mees. & Wels. 797. Bower v. Jenkins, 2 Nev. & Perr. 87. с TROVER. P. 1468. Where in trover for a lease, which the plaintiff Pleading. declared he was lawfully possessed of as of his own property, the defendant by his plea denied the plaintiff's property; held, that this plea put in issue the right of possession as well as the right of property, and that it was sustained by shewing that the defendant had advanced money upon the lease, whereby he acquired an equitable mortgage on it; for it thereby appeared, that though the plaintiff had the right of property in the lease, he had not the right of possession, and that the defendant had a qualified property in it, together with the right of possession a. P. 1472. Property in a ship in progress of building b. WITNESSES. COMPETENCY OF A WITNESS, UNDER 3 & 4 W. IV. c. 42. s. 26. In an action against a master for the negligent driving of his servant, the servant is a competent witness for the defendant, under 3 & 4 W. IV. c. 42. ss. 26, 27. Parke, B., "The act applies to all cases where the only interest is, that the verdict in the action would be evidence for or against the witness; here the servant had no interest, except that the verdict might be given in evidence in an action by the master, to shew the amount of damage. The act is not confined to cases in which it was before impossible to make a witness competent by a release. The object of the act was to save the expense of having a release c. So a person under whom the defendant justifies in trespass, is a competent witness d. So is a person who may be liable to the costs of the action as special da The act does not extend to an issue directed by a court of equity. mages a. But a person interested in the result of a suit in equity, is not a competent witness in an issue directed in such suit; for the act removes the objection when the witness is incompetent, on the ground that the verdict or judgment in the action in which it is proposed to examine him, would be admissible in evidence for or against him; here it is not a verdict or judgment that would be used against him, but a decree of a court of equity,-neither is this an action, but an issue b. Pickler v. Holland, Id. 468. Stewart r. Barnes, Id. 472. INDEX. ABANDONMENT; see INSURANCE. nature and operation of. 1167. 1173. effect of, acceptance of. 1169. when it will not avail. 1170. ABATEMENT; plea of, for non-joinder of co-partner, when not available. 535. 105. 585. the non-joinder of a secret partner cannot be pleaded in. 106. n. plea of, in replevin. 1329. ABSENTING; see BANKRUPTCY. from home, when an act of bankruptcy. 219. ACCEPTANCE; of a bill of exchange. 419. presentment for. 416. form of. 419. of foreign bills, mode of. 420. qualified or conditional. 423. partial or varying. 425. place of payment," not elsewhere." 425. by what party it should be made. 427. cannot be revoked. 429. supra protest. 431. of goods, what is sufficient within the statute of frauds. 1054. of a bill of exchange should know handwriting of drawer. 59. supra protest. 432. how he may be discharged. 420. ACCORD AND SATISFACTION; must be specially pleaded. 132. when a sufficient answer to an action. Id. 699. plea of accord, which is executory only, not sufficient in cove- ACCOUNT STATED; when a count on, may be sustained. 98. with a trustee, a married woman, an infant. 102. nant. 1555. ACKNOWLEDGMENT; see LIMITATIONS, STATUTE OF. 3. ADJUSTMENT; see INSURANCE. definition and effect of. 1180. ADMINISTRATOR; see EXECUTORS. who is entitled to be. 962. pendente lite; durante absentia. 967. interest of, relates back to death of intestate. 979. cum testamento annexo, when and to whom granted. 965. durante minore ætate. 965. bond, nature of, action on. 1012. ADMISSION; on the record, effect of. 1553. ADULTERY; see CRIM. CON. a husband is not liable to support a wife guilty of. 1098. what constitutes, so as to bar a right of entry. 831. where parties claim under the same right it is not. Id. sixty years' will bar the crown. Id. or even twenty years', if there be not a judgment in intrusion. 837. of mortgaged premises. 834. by encroachment on waste lands. 885. will be negatived, when. 837. a person having, for 20 years, has a sufficient title to maintain ADVOWSON; see SIMONY. purchase of, when void. 957. AFFIDAVIT ; ejectment. 845. of service of a declaration in ejectment, requisites of. 899. when liable to his principal, for money had and received. 47, 48. when liable for goods sold. 96. when he may sue and be sued. 105. may draw, accept, or indorse a bill of exchange. 346. 1550. cannot delegate his authority. 349.866. may give notice to quit, if duly authorized. 865. who is, within the statute of frauds. 1050. 1062. when a wife will be presumed to act as husband's. 1092. a bill in favour of an alien enemy will support a promise. 35. will avoid a deed, or bond, or covenant. 656. 758. AMENDMENT; of the record at trial. 1509. ANCIENT; see LIGHTS. case lies for an injury to an ancient house. 561. |