and must, therefore, be considered to have acted by virtue of his office, although the place where the offence was committed was not within his jurisdiction.

Rule refused.

*14]

*PRING v. CLARKSON.

A bill of exchange having been dishonored, the acceptor transmitted a new bill for a larger amount to the payee, but had not any communication with him respecting the first. The payee discounted the second bill with the holder of the first, which he received back as part of the amount, and afterwards, for a valuable consideration, indorsed it to the plaintiff: Held, that the second bill was merely a collateral security, and that the receipt of it by the payee did not amount to giving time to the acceptor of the first bill so as to exonerate the drawer.

ASSUMPSIT by the indorsee against the drawer of a bill of exchange. Plea, general issue. At the trial before Abbott, C. J. at the sittings at Westminster in Trinity term it appeared, that the bill in question was drawn by the defendant, for 85l. 8s. 7d., in favor of Messrs. Geddin & Son, and directed to J. Thompson, Long-acre, by whom it was duly accepted. Geddin & Son negotiated the bill, and when it became due, the bankers at Abingdon, with whom it had been discounted, were the holders; it was then presented for payment and dishonored, whereof due notice was given to the drawer. Thompson, the acceptor, afterwards sent another bill for 1267. to Geddin & Son, by letter, but had not any communication with them respecting the first bill. Geddin & Son discounted the second bill also with the bankers at Abingdon, who returned to them the first bill, together with the difference between the two. The first bill was afterwards indorsed to the plaintiff by Geddin & Son for a valuable consideration. It was contended at the trial, that Geddin & Son, by taking a new bill, not then due, must be considered as having given time to the acceptor, and discharged the drawer of the original bill. The Lord Chief Justice overruled the objection, but reserved liberty to the defendant to move to enter a nonsuit. A verdict having been found for the plaintiff, Chitty, in Trinity term, obtained a rule for that purpose, against which

*Puller (with whom was Platt) now showed cause. The second bill *15] was merely a collateral security, for there was not any communication between Geddin & Son and Thompson, as to giving time for payment of the original bill. The case of Gould v. Robson, 8 East, 576, is distinguishable from the present; for there part payment was received, and also a new bill, and an agreement was entered into, that the holder should keep the original bill until the second was paid; and Lord Ellenborough considered it as an agreement, that the original bill should not be enforced in the mean time. The case of Claridge v. Dalton, 4 M. & S. 226, is not applicable. He was then stopped by the court.

Chitty, contra. The new bill transmitted by Thompson to Geddin & Son was a valuable consideration, by the receipt of which their right of action on the original bill was suspended. In Kearslake v. Morgan, 5 T. R. 513, it was held a good plea in assumpsit, that the defendant had indorsed a promissory note to the plaintiff," for and on account of the debt." So here, unless Geddin & Son could have shown, that they had been induced by fraud to receive the second bill, they could not have sved Thompson upon his original acceptance.

ABBOTT, C. J. It is always best for the court to rely upon some broad plain rule. In cases of this description, the rule laid down is, that if time be given to the acceptor, the other parties to the bill are discharged; but in no case has it been said that taking a collateral security from the acceptor shall

[*16

have that effect. Here the second bill was nothing more than a collateral security. This rule must, therefore, be discharged. Rule discharged.

SPROWLE v. LEGGE.

Declaration stated, that the defendant at Dublin, made a promissory note and thereby promised to pay the same at Dublin, without alleging it to be at Dublin in Ireland: Held, that upon this declaration the promissory note must be taken to have been drawn in Eng. land, for English money, and therefore that proof of a note made and payable at Dublin in Ireland, for the same sum in Irish money, did not support the declaration.

DECLARATION stated that the defendant on, &c., at Dublin to wit, at Lonlon, &c., made his certain promissory note, and thereby promised to pay at No. 81 Dame street, Dublin, forty-one days after date, to the plaintiff or order, 1717. 178. 6d. sterling. It then averred the presentment for payment at No. 81 Dame street, Dublin, &c., &c. The declaration contained the usual money counts. The defendant pleaded the general issue to the count upon the note, and suffered judgment by default as to the other counts. At the trial before Abbott, C. J. at the London sittings after last Trinity term, it appeared that the note was made at Dublin in Ireland, and it was objected on the part of the defendant, that it must be taken from the statement in the declaration that the note was drawn in England for English money, whereas the proof was, that it was drawn in Ireland for Irish money. A witness stated that, in Ireland, Irish currency is called sterling. The case of Kearney v. King, 2 B. & A. 301, was cited, and Abbott, C. J., upon the authority of that case, directed the jury to find a verdict for the defendant upon the count on the note, reserving liberty to the plaintiff to move to enter a *verdict for the amount due. The damages on the other counts were assessed at a sum, including the value of the money mentioned in the note in English currency, without interest.

[*17

Campbell now moved, according to the leave reserved, and contended that this case was distinguishable from Kearney v. King, because the note was payable, as well as drawn, in Ireland. Any common person reading the declaration would infer that the note was made at Dublin in Ireland, and the court must put the same construction upon it. Judges are bound to take judicial notice of the division of the realm into counties, Deybel's case, 4 B, & A. 246. They do not, therefore, require to be informed by express allegation that Dublin is in Ireland. Dublin is mentioned in many public acts of parliament; and although Dublin in Ireland is meant, the legislature has thought it sufficient to call the place Dublin, without addition or description. If a note, purporting to be made in Lombard street in the city of London, were declared upon in an Irish court, the judges there would hardly require an allegation that London is in England. There may, by possibility, be a town in England called Dublin, with a street called Dame street; but the court, in ignorance of any other Dublin, will intend that the Dublin here spoken of is Dublin in Ireland, of which they are not permitted to be ignoant. Assuming this, the objection respecting the currency seems to be removed. The note being alleged to be made in Ireland, and to be payable 'n Ireland, the fair inference is, that the money mentioned in it is the currency of the country in which it is made, and in which it is payable. The statement in the declaration, *therefore, that the defendant, by the note, promised to pay 1717. 17s. 6d. is substantiated by proof of a [*18 promise to pay so much in Ireland in Irish currency.

Per Curiam. It is unnecessary to decide, whether, upon the face of the declaration, the note must be taken to have been made in Ireland, and to be

payable there; for the other objection is clearly fatal, viz. that the money is not stated in the declaration to be Irish currency. In Ireland there may be a contract to pay a certain sum in English money. Now, in pleading it is usual to state the legal effect of an instrument; and therefore, when in an English court ⚫ an instrument is described as containing a promise to pay a sum generally in pounds, shillings, and pence, English money must be understood; so that if the instrument in reality promises to pay this sum in Irish currency, there is a fatal variance. Rule refused.

BOONE v. MITCHELL.

Declarations, in consideration that plaintiff would procure A. B. to grant a lease to defendant; the latter promised to pay the plaintiff 1707. The proof was, that A. B. having agreed to grant a lease to the plaintiff, the latter undertook, originally, to assign it to defendant, for the consideration mentioned; but that afterwards, a lease, to which plaintiff was a party and assented, was granted immediately by A. B. to the defendant. The consideration to be paid by the defendant to the plaintiff was not mentioned in that lease: Held, first, that the lease was not void on account of this omission, the ad valorem duty imposed by the 50 G. 3. c. 184., applying only to considerations passing between lessor and lessee; and, secondly, that the evidence proved the substitution of a new contract to procure a lease from A. B. to the defendant, in lieu of the original contract, and that there was not any variance.

THIS was an action of assumpsit. The first count of the declaration stated that, in consideration that the plaintiff, at the request of defendant, would procure the governors of a certain charity to grant a lease to the defendant, the defendant undertook to pay the plaintiff a certain sum, to wit, 1707.; it then averred that the lease was procured, and stated a breach in non

*19] payment.

At the trial before Abbott, C. J., at the London sittings after last term, it appeared that the plaintiff, having an agreement for a lease from the governors of the charity, contracted with the plaintiff in writing, in consideration of 1701., to assign the lease to him, the defendant, when it should be obtained. The defendant paid part of the money, and was let into possession by the plaintiff, who was already in the occupation of the premises; afterwards the lease, instead of being granted to the plaintiff, and being by him assigned to the defendant, was, by the consent of the plaintiff, granted directly by the governors to the defendant. The plaintiff was a party to the lease and testified his assent in consideration of the defendant covenanting to perform the covenants, omitting to notice any pecuniary consideration. It was objected by the defendant's counsel, that the contract declared upon (to procure a lease) varied from the contract proved in evidence, which was to assign a lease; but the chief justice reserved the point, and the plaintiff had a verdict.

F. Pollock moved to enter a nonsuit on two grounds; first, that the contract stated in the declaration being to procure a lease for 1707., and the contract proved in evidence being to assign a lease, there was a variance; and there was a wide difference between the situation of a direct lessee, who would always be liable on the covenants, and an assignee, whose liability would be at an end on his parting with the term; and if the lease itself was resorted to, in order to show that the defendant was *contented to take the lease to be granted *20] to himself instead of having an assignment, then, he contended, a second objection was raised on the stamp act, 55 G. 3. c. 184., by which a stamp is imposed according to the consideration given for the lease, and also according to the rent reserved. Here the legal estate was in the governors, and they having agreed to grant a lease to the plaintiff, he had an equitable interest; and both parties concurring, (the governors in consideration of the rent, and the plaintiff in consideration of the 1707.,) a lease was granted to the defendant; which lease, having no stamp in respect of the consideration of 170l. to the plaintiff, and no such consideration being stated on the face of it, was void.

VOL. VIII.-2.

Per Curiam. The stamp act requiring the consideration to be set out, and imposing an ad valorem duty on the consideration, applies only to the case of a consideration passing between the lessor and the lessee. The legislature never could have intended the lease to be void by the lessor's omitting to state a consideration which he might not, and perhaps could not, be aware of. As to the other point, there is sufficient evidence of a substitution of a contract for procurement of a lease, instead of an assignment of one, to sustain the declaration as framed; and the plaintiff is therefore entitled to the verdict which he obtained.

Rule refused

*The KING v. KIRK.

[*21

An order of justices for diverting a highway stated that the new road was to pass through the lands of the late T. J. and that the justices had received evidence of the consent of the said T. J. in his lifetime: Held, that this order was bad, because it did not thereby appear that T. J. was the owner of the estate at the time when the order was made.

An order of two justices for the county of Denbigh, made at a special sessions held on the 7th of June, 1821, recited that they had found, upon view, that a certain part of a highway therein particularly described, by reference to a plan annexed to the order, might be diverted and turned, so as to make the same nearer and more commodious to the public; and that they had viewed a course in lieu thereof, therein also particularly described, by reference to the same plan, part of which new road was to pass through the lands and grounds of the late Thomas Jones, Esq. The order then stated that they had received evidence of the consent of the said T. Jones, Esq., in his lifetime, to the said part of the new road being made and continued through his lands, by writing under his hand and seal; and directed the road to be diverted and turned accordingly. The sessions, on appeal, having confirmed this order, it was removed into this court by certiorari, and a rule nisi had been obtained for quashing it, and the order of sessions confirming it; against which

Marryat now showed cause. By 55 G. 3. c. 68. s. 2. it is enacted, that when it shall appear, upon the view of two justices, that any public highway may be diverted so as to make the same nearer or more commodious to the public, and the owner of the lands through which such new highway so proposed to be made shall consent thereto, by writing under his hand and seal, it shall be lawful for the justices to divert such highway, and by such means, and [*22 subject to such exceptions and conditions as are contained in the 13 G. 3. c. 78. Now, by the 70th section of the latter statute, the justices are bound to pursue the form given in the schedule thereto. Davison v. Gill, 1 East, 64. The order in this case is copied from the form given in the schedule to that statute; and the question is, whether it sufficiently appears, on the face of it, that the consent of the owner of the lands, through which the new road was to pass, was obtained. Now every intendment ought to be made in favor of the order. It clearly appears that the consent of T. Jones, who had been the owner, was obtained; and once given, it could not be revoked. It was binding upon any person to whom the lands afterwards came. If this were not so, it would be most inconvenient; for it would be competent to a subsequent purchaser of the estate to revoke the consent given by the former owner, even after all the expense of making the new road had been incurred: besides, by 55 G. 3. c. 68. s. 3. the sessions are authorized finally to determine the appeal; and they have confirmed the order.*

* But see Rex v. Sheppard, 3 B. & A. 4.7., where it is held, that, notwithstanding this, the certiorari is not taken away.

ABBOTT, C. J. I am of opinion that this order must be quashed. It seems to me that the proper construction of the statute will be, to hold that there must be a consent of the person who is the owner of the estate at the time when the order is made. Now, here it does not appear, upon the face of the order, that the person whose consent was obtained was alive, either at the time when the order was made, or at any time after the proceedings had commenced;

*23] for it is not stated whether the consent was given before or after the

justices had made their view. Our present decision will not affect the question, whether the owner of an estate may revoke a consent given by a former owner who was alive, and consenting at the time the order was made; we only decide, that it must appear on the face of the order that the consent of the person who is the owner at the time when the order is made, has been obtained.

Order of sessions quashed.

The KING v. The Inhabitants of ALL SAINTS, CAMBRIDGE.

Where a pauper resided for a year in a house in the parish of A., and during all that time had two subsisting parol contracts for two ponds, or the rushes and flags growing therein, which he was to have the exclusive right of cutting at his pleasure: Held, that these were a sufficient tenement (being together above the value of 101. per annum) to confer a settlement in A.

Two justices removed Lydia Fowler from the parish of the Holy Trinity to the parish of All Saints, Cambridge. The sessions, on appeal, confirmed the order, subject to the opinion of this court on the following case. The pauper's maiden settlement was in All Saints' parish. In 1793 she married William Fowler, a maker of chair-bottoms and mats; and the question was, whether he had any legal settlement. The following were the circumstances as to that point. In 1807 he hired a house in the parish of St. Peter's, Cambridge, of the value of 97. 10s. per annum, and resided therein with his family above a year; during the same time he had two separate parol contracts for two ponds, or for the rushes and flags growing therein, upon these terms: one of the ponds was of the extent of three acres, in which he was to have the exclusive right of cutting the rushes and flags at his pleasure, but not of draining off the *wa*24] ter; the owner had the right to use the water, or to drain it off, as he thought proper. For this W. F. was to pay 5s. a year to the occupier of the farm in which it was situated. The pond was not fenced off from the rest of the field, and the occupier's cattle, when depasturing there, used the pond for drinking at; but the rushes and flags were not such herbs as cattle would eat. The other pond was only about a quarter of an acre, and was occupied under similar circumstances, at the yearly rent of 58. and two door-mats of the value of 28. The next year W. F. agreed to pay 10s. for the same, but died before the rushes were all gathered. The contracts for the ponds subsisted during all the time that W. F. occupied the house in the parish of St. Peter's. The sessions thought this was not sufficient to establish a settlement in that parish, and confirmed the original order.

Starkie, in support of the order of sessions. This was a personal contract for the rushes, and not a tenement. The pauper's husband took no interest in the soil, but had a mere privilege of going upon the land to cut the rushes which he had bought. In Pincomb v. Thomas, Cro. Jac. 524, it was held that the soil was not reserved out of a lease, by an exception of saleable growing woods; so, in Warwick v. Bruce, 2 M. & S. 205, it was held that no interest in the soil passed by a sale of growing potatoes. And in the case of Rex v. Old Alresford, 1 T. R. 358, where the question was, whether the pauper gained a settlement by renting the fishery of a pond, with the spear, sedge, flags, and