fendant, on a former occasion, made a distress for the same rent, and took goods liable to distress, sufficient to discharge the rent in arrear, and the costs of the distress, and might thereby have paid the arrears of rent, but neglected so to do, and wrongfully made a second distress for the same rent:-Held, ill on special demurrer, assigning for cause, that the plea did not shew that the rent was satisfied by the former distress. Hudd v. Ravenor, E. 2 G. 4. Page 542 3. An avowry by one of several co-heirs in gavelkind, in his own right, and a cognizance as bailiff of the others, is sufficient, without averring any authority from them to distrain. Leigh v. Shepherd, H. 1 & 2 G. 4. 297 INSPECTION OF PAPERS. SETTING ASIDE PROCEEDINGS. See ARREST, 2. PRACTICE, 1. SET-OFF. See COSTS, 1. SEWERS. A decree by the Commissioners of Sewers, is not conclusive against a party assessed for the payment of a rate, and who resides within the district over which they have jurisdiction; but such party may prove in an action of trespass brought by him against one of the collectors of the rates, for taking his goods to satisfy such rate, that he derived no benefit from the sewer in respect of which the assessment was made; and such evidence having been rejected at Nisi Prius, the Court granted a new trial. Stafford v. Hamston, E. 2 G. 4. SHERIFF. See AMENDMENT. BAIL BOND. BANKRUPT, 4. Page 608 43. c. 75. ss. 3. 4. tics. 623. 5, 6, 8 Power-Luna 459 45. c. 67. Court of Requests. 622 46. c. 135. s. 1. Bankrupt. 17, 18 47. c. 37. Inferior Court. 622 to 626 xlvii. sess. i. c. vii. Sewers. 610. 12 49. c. 121. s. 9. Bankrupt. 134,5 51. c. 124. ss. 34. 72. Process. 168 to 179 lii. c. xi. s. viii. Sewers. 608. 12 52. c. 39. ss. 2. 59. Pilots. 178 53. c. 127. Constable-Warrant. TRIAL. See PRACTICE, 2. TROVER. See AGENT, 3. BANKRUPT, 4. A. brought an action of trespass against B., for taking away a filly. B. justified the taking as the servant of C. The Jury found a verdict for A., with damages, subject to a reference to D., one of the jurors, to ascertain to whom she belonged, which was to depend on whether a scar should appear on a certain part of her body, and in case it should, the verdict for A. was to stand, if not, it was to be entered for B. The filly was delivered to D. by the consent of all parties, and he made his award, and found her to belong to A., and accordingly ordered the verdict found for him to stand. C., ten days after the award, demanded the filly of D. who refused to deliver her, and a fortnight after, he brought an action of trover for her recovery: Held, that the detention of the filly by D. did not, under the circumstances, amount to a conversion, as C. was no party to the original action, and as it did not appear that he was authorized by B. to make the demand, to whom alone D. was bound to deliver her, he only being liable for the damages awarded to A. Gunton v. Nurse, H. 1 & 2 G. 4. Page 259 TRUSTEES. See DEVISE, 2. EXECUTION. TURNKEY. See BAIL, 1. UNDERWRITER. See INSURANCE, 2. USAGE. See EVIDENCE, 2. USE AND OCCUPATION. See COSTS, 1. A. took a farm under an agreement from B. that A. should have the exclusive right of sporting over the manor in which it was situate, and should also occupy certain glebe land within the parish. A. entered into possession, but did not sign the agreement; and it appeared that B. had no power of conferring the right of sporting, nor could he procure the glebe land. In an action for the use and occupation of the farm:-Held, that evidence was admissible to shew the annual value of the land without such right, which might be ascertained by the Jury, independently of the amount of the rent, reserved by the agreement. Tomlinson v. Day, E. 2 G. 4. Page 558 USURY. The plaintiff and defendant covenanted by deed to become partners in the business of army clothiers, for ten years, and that the plaintiff should advance 20,000l. as part of the capital for carrying on the business, and that the defendant should provide a like sum; that the plaintiff, during the continuance of the partnership, should receive out of the profits, if they were adequate, or if not, out of the capital, 2,000l. per annum for his share of the profits; that he should not be answerable for any losses or expences incident to the concern, and that the business should be carried on in the name of the defendant alone. The defendant then covenanted, that on the determination of the partnership by effluxion of time, the sum of 20,000l. should be repaid to the plaintiff by instalments, at three months date, bearing legal interest; and that if default was made in the annual payment of 2,000l. or the joint capital was at any time reduced to 20,000l., then the plaintiff should be at liberty to terminate the partnership, and repay himself the 20,000% advanced, immediately; and the defendant was to guaranty all debts, and pay all losses. In an action of covenant, brought by the plaintiff, to recover the 20,0007, at the expiration of the ten years, the defendant pleaded, that the deed was executed by way of shift, in pursuance of an usurious contract; which plea, upon issue joined, was negatived by the verdict of the Jury:-Held, that after that finding, the deed must be taken to disclose the real intention of the parties, and that upon the face of it, the plaintiff and defendant must be deemed partners, and that it was not void as being a loan of money within the meaning of the statute of usury; and the Court refused to grant a new trial, or arrest the judgment. Enderby v. Gilpin, E. 2 G. 4. Page 571 VARIANCE. 1. A declaration in assumpsit stated, that in consideration that the plaintiff, at the request of the defendant, would lend a horse of his, to be used by the latter for a given time, the defendant promised to take proper care of him, and return him to the plaintiff in as good a condition as he was in at the time of the promise, or pay the plaintiff fifteen guineas. It was proved at the trial, that in addition to these terms, the contract was, that the defendant should find the horse meat for his work:-Held, that this was no variance, as the contract was sufficiently stated in the declaration, and as the law would imply that a person who hires a horse is bound to provide him with food, unless there be an agreement to the contrary. Handford v. Palmer, M. 1 G. 4. Page 74 2. In covenant for not repairing;if the covenant to repair contains an exception of "casualties by fire," it is fatal on non est factum to state it in the declaration as a general covenant to repair, omitting the exception; and the Court will not allow the plaintiff to amend on payment of the costs of the trial; but leave him to his remedy, by bringing a fresh action. Brown v. Knill, H.1& 2G.4. 164 3. Where plaintiffs issued a writ against a defendant in their own names, and declared in their own right, and described themselves in the affidavit to hold to bail as surviving partners, it is a fatal variance; and the Court ordered the bail-bond to be cancelled, and would not allow the plaintiffs to amend their writ and declaration, on payment of costs. Attwood v. Rattenbury, H. 1 & 2 G. 4. 209 4. In an avowry, founded on a distress for rent, the defendant averred, that the plaintiff held certain strata or veins of ironstone, under a lease, which contained a proviso, that "if the stone should not be wholly gotten or wrought out within the term of eight years from the commencement of the demise, the rent in respect of such as should then remain ungotten, should be paid to the lessor." On the production of the lease, the proviso contained the additional words "if the same should be found to be gettable :"-Held, that this was a fatal variance, and that the plaintiff was entitled to recover on non est factum; and it seems, that he would only be liable to pay for such stone as could be gotten, and not for that which was not gettable. Adam v. Duncalfe, E. 2 G. 4. Page 475 5. Where the ac etiam in a writ was "in a plea of trespass on the case upon promises," and the declaration was delivered in debt; it is a fatal variance, and the Court ordered an exoneretur to be entered on the bail-piece, and would not allow the declaration to be amended by filing it in assumpsit. Maberley v. Benton, E. 2 G. 4. 483 VENDOR AND PURCHASER. See BANKRUPT, 3. VIDELICET. See PLEADING, 2. WARRANT. See CONSTABLE. SHERIFF. WARRANT OF ATTORNEY. Where the defeasance on a warrant of attorney stated that it was given to secure the payment of a sum on demand, and that in case default should be made, judgment was to be entered up, and execution issue:-Held, that an actual demand must be made before the issuing of execution thereon; and that a proposal to |