complaint, and adjudged the same to be true. It then alleged the issuing of a warrant to cause possession of the premises to be delivered to the churchwarden and overseers, pursuant to stat. 59 Geo. 3, c. 12, which was delivered to the defendant A. to be executed; by virtue of which, in order to deliver peaceable and quiet possession thereof to the said churchwarden, &c., he the defendant A., and the other defendant as his servant and by his command, afterwards and within a reasonable time after the adjudication, and after the delivery of the said warrant, to wit, at the time in the introductory part of the plea mentioned, the same being in the daytime, broke into and entered the said dwelling-house; and because the plaintiff and his family were then occupying the same, the plaintiff claiming some title thereto under colour of a certain charter of demise, pretended to be thereof made to him by the said M. S. for the term of his natural life, after her said refusal and neglect, whereas nothing passed thereby, and although the plaintiff and his family were then requested so to do, refused to depart and go out of the said tenement, the defendants then gently ejected, expelled, put out and removed the plaintiff and his family from the said tenement, for the purpose of delivering the quiet and peaceable possession thereof to the said churchwarden and overseers, &c.:-and so justified the trespasses complained of. Held, on special demurrer, first, that the seisin in fee of the Marquis of H., at the time of the demise to the churchwarden and overseers, was sufficiently averred.

Secondly, that the churchwardens and overseers are not, by 59 Geo. 3, c. 12, s. 17, made a complete body corporate, but are only empowered "to accept, take, and hold in the nature of a body corporate," and there

fore that it was not necessary to shew the acceptance of the demise by an instrument under a common seal.

Thirdly, that it was no objection that the names of the then churchwardens and overseers were not mentioned, as the grant would be good by the name of office to the then individual officers.

Fourthly, that the express colour given by the plea, by the averment of the charter of demise, was sufficient; for that it gave a colour of title, though it was a bad one. Smith v. Adkins, 362

OYER.

See LEASE.

PARTNERSHIP.

See MINING COMPANY.

PATENT.

The construction of the specification of a patent belongs to the Court, and not to the jury.

If a specification contain an untrue statement in a material circumstance, of such a nature, that, if literally acted upon by a competent workman, it would mislead him, and cause the experiment to fail, the specification is therefore bad, and the patent invalidated, although the jury, on the trial of an action for the infringement of the patent, find that a competent workman, acquainted with the subject, would not be misled by the error, but would correct it in practice.

In the specification of a patent, the title of which was "An invention for the improved application of air to produce heat in fires, forges, and furnaces, where bellows or other blowing apparatus are required," the mode of operation was described as follows:"A blast or current of air must be produced by bellows or other blowing apparatus, and is to be passed from the bellows, &c., into an air-vessel or

receptacle, made sufficiently strong to endure the blast, and from that vessel or receptacle, by means of a tube, pipe, or aperture, into the fire, &c. The vessel or receptacle must be airtight or nearly so, except the apertures for the admission and emission of air, and at the commencement and during the continuance of the blast must be kept artificially heated to a considerable temperature." After giving directions as to the materials and dimensions of the vessel, the specification proceeded to state, "The form or shape of the vessel or receptacle is immaterial to the effect, and may be adapted to the local circumstances or situation." In other parts of the specification, the same. language was used with reference to the ultimate beneficial effect upon the furnace, &c.:-Held, that such was the reasonable construction of the above clause also, and not that the form or shape of the vessel was immaterial to the effect of heating the air within it.

Held, also, that the title of the patent was not inconsistent with the specification, but that the invention of applying to fires, &c., air heated in the manner therein stated, might be described as an "improved application of air."

Held, also, that in this specification the plaintiff did not claim a patent for a mere principle, but for a mode of applying a well-known principle, viz. the heating of air, by means of a mechanical apparatus applied to fires and furnaces.

If the notice of objections, delivered by a defendant with his pleas in an action for the infringement of a patent, pursuant to the stat. 5 & 6 Will. 4, c. 83, s. 5, be not sufficiently specific, the plaintiff's course is to apply to a Judge at chambers for an order for the delivery of a more specific notice; but if he omit to do so, he cannot ob

See APPORTIONMENT OF RENT.
ARBITRATION, II., 1.
BOND.
BOROUGH.

CARRIER, (2), (3).

COSTS, III. IV.

DEBTOR AND CREDITOR.
LANDLORD AND TENANT, (1).
LEASE.

MAINTENANCE.
OVERSEERS.
STATUTE.
TRESPASS, (1).

I. Declaration.

Averment of Breach.

A declaration in assumpsit stated, that one W. A. S. was in the custody of the warden of the Fleet in execution at the suit of the plaintiff, upon a judgment in this Court, and that in consideration that the plaintiff would cause him to be discharged, and would take his warrant of attorney for the debt and costs, the defendant undertook that W. A. S. should be forthcoming to satisfy the amount of the judgment to be entered up on the warrant of attorney, on the 18th July, 1840, at the office of Mr. A., and also, that one day's previous notice of meeting W. A. S. should be given to Mr. A.: -Averment, that the plaintiff, confiding, &c., did discharge W. A. S. out of custody, and took a warrant of

II. Pleas in Bar. (1). Plea "by Statute." Where, in an action of trespass for hunting over the plaintiff's land, the defendant pleaded not guilty by statute, the Court, on an affidavit of the plaintiff that he could not discover the statute under which the defendant meant to justify, made absolute a rule upon the defendant, to point out within three days the statute under which the plea was pleaded, or else that the words "by statute" should be struck out of the margin. Coy v. Lord Fo312

rester.

(4). When amounting to General Issue.

that, in consideration that the plainAssumpsit. The declaration stated, tiff would buy of the defendant a mare at a certain price, the defendant promised that she was sound, and averred as a breach that she was not sound. The defendant pleaded that the mare was sent to a repository for the sale of horses, to be sold according to certain rules, which were that " a warranty of soundness should remain in force until noon of the day after the sale, when it would be complete, and the responsibility of the seller terminate, unless in the mean time a notice and certificate of unsoundness were given:" that the sale took place subject to the rules, and that the same were agreed to by the parties, and that such notice and certificate were not given within the time limited:Held, that the plea was good, and that it did not amount to the general issue. Smart v. Hyde, 723 (5). When a good answer as to Part.

To an action of debt for goods sold, &c., the defendant pleaded, except as to 57. 108. 3d., nunquam indebitatus; and as to that sum, that the plaintiff ought not further to maintain his action, because he says, that after the causes of action in the declaration mentioned accrued to the plaintiff, and after the commencement of the suit, he the defendant paid to the plaintiff, who then accepted and received the same, a large sum of money, to wit, 5l. 13s. 7d., in full satisfaction and discharge of all the causes of action in the declaration mentioned, which relate to the said sum of 57. 10s. 3d. To this there was a special demurrer, assigning for cause,

that it was not alleged that the payment was made in satisfaction and discharge of the damages and costs sustained by reason of the causes of action, or the detention of the debt: -Held, on special demurrer, that the plea being pleaded to a portion of the debt only, and not to the damages and costs appertaining thereto, was nevertheless a good answer to so much as it was pleaded to, although it was larger than necessary in the concluding part, that not being pointed out as a ground of demurrer.

Held also, that the plaintiff might sign judgment for any damage which was not answered by the plea. Henry v. Earl, 228

(6). Non assumpsit, Evidence under. Under a plea of non assumpsit to a count on an account stated, the defendant may shew that accounts between the plaintiff and himself, the correctness of which he has admitted,

were in fact incorrect. Hawkes,

III. Replication.

(1). De injuria.

Thomas v.

140

To an action by indorsee against acceptor of a bill of exchange, the defendant pleaded, that after the indorsement to the plaintiff, and before the commencement of the suit, to wit, on &c., the plaintiff, for a good and valuable consideration, indorsed the bill to J. W., who, from thence until and at and after the commencement of this suit, was, and still is and remains, the indorsee and holder thereof, and the defendant, from the time of such indorsement to the said J. W. continually hitherto hath been, and still is liable to pay the amount of the bill to the said J. W. Replication, de injuriâ:-Held, on special demurrer, that the plea was in denial, not in excuse, of the breach alleged in the declaration, viz. the non-pay

ment of the bill according to the tenor and effect of the acceptance, and therefore that the replication was improper. Schild v. Kilpin, 673

(2). Traverse of immaterial Aver

ment.

Plea, to an action of covenant for rent due for turnpike toll, 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 and continued him so ejected, &c., from thence hitherto. Replication, that the trustees did not enter into or upon the said part of fendant from the possession thereof the said tolls, or eject, &c., the demodo et formâ.

Held, on error in the Exchequer Chamber (reversing the judgment of the Court of Exchequer), that this replication was good on special demurrer, although it put in issue not only the expulsion but also the entry, the latter being immaterial and impossible, and that the defendant having mixed up the entry and expulsion as constituting the eviction, the plaintiff had a right to follow him, and to accept the issue as tendered. mer v. Gooden,

IV. Profert.

Pal890

Where the defendant, a surety, by deed poll guaranteed to the plaintiff the payment of a sum of money:— Held, in an action on the guarantee, that the defendant might plead an indenture of release from the plaintiff to his principal without making profert of the indenture. Bain v. Cooper, 751

V. Variance.

1. Declaration in assumpsit stated, that the plaintiff bargained to buy of the defendant, and the defendant

agreed to sell to him, a dwellinghouse and the fixtures therein, for the residue of a term of years then and still unexpired therein, to commence from a certain day, to wit, the 1st of January, 1840, for the sum of £60: and that thereupon the defendant promised to execute a proper conveyance, to make out an abstract of title, and deliver possession from the 1st of January, 1840, &c. At the trial, the following paper, signed by the defendant, was read in evidence: "I agree to sell the house and fixtures, No. 163, Piccadilly, to commence from the 1st of January next, for £60:"-Held, that this document imported the sale of an interest in fee simple, and did not sustain the contract as alleged in the declaration. Hughes v. Parker, 244

2. Declaration in assumpsit stated that an action had been commenced by the plaintiff against T. C. for the recovery of 2107. 128. 7d., alleged to be due from T. C. to the plaintiff on an account delivered to him by the plaintiff: and thereupon, in consideration that the plaintiff had consented to stay all proceedings in the said action, on security being given to him for the payment of such sum as might be found due from T. C. to the plaintiff on the said account, the plaintiff and T. C. having agreed that such account should be submitted to arbitration, the defendants agreed to pay the plaintiff such part of the said sum of 2107. 128. 7d. as upon such arbitration should be found due from T. C. to the plaintiff. The declaration then alleged, that the action was submitted to the arbitration of two persons named, who accordingly certified that there was due from T. C. to the plaintiff the sum of £120; and that the costs amounted to a further sum of £93; but that neither T. C., nor the defendants paid the same or any part thereof.

The plea set out the certificate of the arbitrators, in these terms:-"In pursuance of the within order, we make and publish our certificate, that there is now due from T. C. to the plaintiff, W. K., the sum of £120, which we order to be paid by the securities [the defendants] on the dates hereunder specified;" with a special traverse that the arbitrators made their certificates of and concerning the said matter in reference so submitted to them as aforesaid, modo et formâ.

Held, that the allegation in the declaration, that the subject-matter of the reference was the particular action against T. C., was not sustained by the production of the certificate, without evidence to shew that the arbitrators really adjudicated on the cause only; and that this objection was available under the traverse in the plea. King v. Bowen, 625