thereof; and that in case of a vacancy in the situation of clerk of the court, &c., the mayor and aldermen of the borough for the time being, or the major part of them, should appoint a successor, and that until such appointment should be made, the commissioners, or any three or more of them, should nominate officers to do the business of the Court. At a meeting of the town council of B., specially summoned for the purpose of electing a clerk, the plaintiff, who was a member of the council, was elected by the council, and before the end of the election he tendered to the mayor his resignation of the office of town councillor, together with the sum of £50 as a fine on resignation, under 5 & 6 Will. 4, c. 76, s. 51. No bye-law had been made to enforce a fine on resignation, and therefore the mayor returned the £50, in the presence of the council, after the election. plaintiff's seat in the council was afterwards filled by the election of another person, and at a quarterly meeting of the town council, held on the 7th of May, 1840, of which no notice had been given, the plaintiff was again elected by the town council:-Held, first, that neither the 73rd section of 5 & 6 Will. 4, c. 76, nor the 8th section of 6 & 7 Will. 4, c. 105, was applicable to this case.

The

Secondly, that the case was within the 72nd section of 5 & 6 Will. 4, c. 76; the true construction of which was, that the body corporate, under

Requests in Borough.

By an act of Parliament creating a Court of Requests for the borough of Boston, it was enacted, that the mayor, recorder, deputy recorder, aldermen, and common councilmen for the time being of the borough, the justices of the peace for a certain district, together with other persons therein mentioned, should be the commissioners

missioners for executing, by the town council, the powers and provisions of all acts of Parliament, of which powers and provisions the old body corporate, or any of the members thereof, in their corporate capacity, were sole commissioners or trustees before the election of the town council: and as the mayor and aldermen were, by the local act, sole trustees or commission

ers for the purpose of appointing the clerk, that their powers devolved upon the town council, and that the plaintiff was duly elected at the first meeting; that, under all the circumstances of the case, the plaintiff's resignation

of the office of town councillor was sufficient; but that if it was not, his election to the office of clerk had the effect of vacating his office of town councillor. Staniland v. Hopkins, 178

NAVIGATION ACT.

(1). Construction of. Where, by a navigation act, certain rates and duties were imposed on coals, &c., landed within a certain district, to be paid to commissioners therein named; and the commissioners were empowered to sue in the name of their clerk for the time being for "any penalty or sum of money due or payable by virtue of the act:"-Held, that an action of debt might be brought in the name of the clerk for arrears of rates and duties; although, by another clause, a power was given of detaining and selling the vessel and goods in case of neglect or refusal to pay the rates and duties.

The act directed, that any surplus of rates remaining in the hands of the commissioners should be annually in vested in the funds until it should amount to £3000, and that after that sum should be invested they should reduce the rates, so as they should not, together with the dividends of the £3000, exceed the charges annually expended in carrying the act into execution:-Held, that the commissioners had impliedly a power, after so reducing the rates, also to raise them again in case of necessity.

Held, also, that after the passing of the Weights and Measures' Act, 5 & 6 Will. 4, c. 63, the commissioners had power to levy the rates by the ton (they having been previously levied

By a local act, 1 Will. 4, c. 55, the Trent and Mersey Navigation Company were empowered to take lands for the purposes of the navigation; and by sect. 118 and other sections, provision was made for ascertaining, by a sheriff's jury, the sum to be paid for the land, and for any damage occasioned by the company in carrying the provisions of the act into effect. And in order to protect the company from injury to arise from working any mines near two tunnels by which the canal passed under a certain hill, the act provided, by section 170, that no mine owner should work any mine in or under any land within forty yards of the tunnels, without leave of the company; and by section 171, that if the company, instead of insisting on their full right of having forty yards left unworked, should require less than thirty yards to be so left, then the mine owner might insist on the necessity of leaving, for his security, any greater quantity unworked not exceeding thirty yards, and the question so in dispute as to the quantity necessary to be left for the security of the mine owners was to be tried, settled, and determined, by an issue at law. And by section 172 it was provided, that whenever any mine became workable in ordinary course, within forty yards of the tunnels, the mine owner should give notice to the company, and thereupon the company should pay to the mine owner for so much of the mine within the forty yards as they should require to be left unworked for security of their works; or (as the case might be) for so much of the mines as, under the provisions of

section 171, it might be ascertained to be necessary to leave unworked, for security of the mines. Provided, that no mines should in any case be worked under the tunnels; but whenever any such last-mentioned mines should become workable, satisfaction should be made by the company for the same, "such satisfaction to be settled by an issue at law."

By the 178th section, the course to be taken in trying any feigned issue was pointed out; and it enacted, that after trial and verdict in such issue, the Court was to give judgment for the sum of money to be awarded by the jury:-Held, that by the express terms of the 172nd section, the owner of a mine which had become workable within the space of forty yards of the tunnels mentioned in the act, was entitled to be paid for the value of the forty yards of mine left unworked for the security of the navigation, the whole having been by the company required to be so left unworked; but that the only remedy open to him to enforce his right was by a feigned issue, and consequently that he was not entitled to proceed by an action on the case. Fenton v. The Trent and Mersey Navigation Company,

NOTICE TO PRODUCE.
See EVIDENCE, (1).

NUL TIEL RECORD.
See PRACTICE, (5).

PARTNERSHIP.

203

See BILLS AND NOTES, II. (1). By what Agreement constituted.

In May, 1839, A., a creditor of the firm of B. & S., proposed to become a partner with them, the terms of the intended partnership being, that A. should bring in £1000 in money and £1000 in goods, and should be enti

VOL. IX.

titled to one-third of the profits, and be a dormant partner; the name of the firm was to be changed to B. S. & Co., and the partnership was to date from the 1st April, 1839, but A. reserved to himself the option of determining, at any period within twelve months from that day, whether he would become a partner. The name of the firm was altered accordingly, and a new banking account was opened in the name of B. S. & Co.; and A. advanced the £2000 to the firm; but within the twelve months he declared his determination not to enter into the partnership:-Held, that A. was not liable for goods supplied to the firm after May, 1839, for that he never became a complete partner. Gabriel v. Evill, 297

(2). Liability of dormant Partner under written Agreement made by his Co-partners.

A., B., & C. being in partnership together as type founders (C. as a dormant partner), an agreement was entered into between A. and B. of the one part, and the plaintiff of the other part, by which, after reciting that the plaintiff had been in the employment of A. and B., as foreman in carrying on the said trade of typefounders, the plaintiff covenanted and agreed with A. and B., and the survivor of them, to serve them and the survivor of them in their said trade for the term of seven years; and they covenanted and agreed to employ him as their foreman for the term of seven years, if they or either of them should so long live, and to pay him three guineas per week; and it was mutually agreed, that if either party should not perform the covenants on their respective parts, the party so failing or making default should pay to the other £500, by way of specific damages. At the time the agreement was entered into it was unknown to

MM M

The "public use and exercise" of an invention, which prevents it from being considered a novelty, is a use in public, so as to come to the knowledge of others than the inventor, as contradistinguished from the use of it by himself in private; and does not mean a use by the public generally.

Therefore, where an improved lock, for which the plaintiff had a patent, had previously been used by an individual on a gate adjoining a public road, for several years; and several dozens of a similar lock had been made at Birmingham from a pattern received from America, and sent abroad; it was held that this constituted such a public use and exercise of the invention as to avoid the patent. Carpenter v. Smith,

PAUPER.

300

PENALTY.

Penalty of liquidated Damages.

The plaintiff and defendant entered into an agreement for the purchase by the defendant of the plaintiff's goodwill, stock, tenant-right, &c.: it was stipulated by the agreement that the plaintiff should give possession on a certain day, and in the meantime should pay the rates and taxes, and keep the defendant indemnified therefrom: and the defendant agreed to pay £100 for the tenant-right, and take the fixtures at a valuation, and pay all rents, rates, taxes, &c., and to indemnify the plaintiff from the same; and lastly, the parties "mutually bound themselves, the one to the other, in the sum of £100 as settled and liquidated damages, to be paid and forfeited, without any deduction, by such of them as should make default in the premises, unto the other of them requiring the same:"--Held, that the sum of £100 was a penalty only, and not recoverable as liquidated damages for the breach of any of the stipulations. Horner v. Flintoff, 678 PEREMPTORY UNDERTAKING. See PRACTICE, (8).

them, having paid rent to the Midsummer previous:-Held, in an action brought to recover the rent which subsequently accrued due, that the plaintiff was not entitled to have a count on the demise and also a count for use and occupation, but that he must make his election. Arden v. Pullen, 430

2. Two counts on the same policy of insurance, one alleging a loss by perils of the sea, and the other a loss by barratry, cannot be pleaded together. Blyth v. Shepherd,

763

(2). Averment of Title to demise, when sufficient.

The declaration stated, that the plaintiff, before and at the time of the agreement thereinafter mentioned, was lawfully possessed for the residue of a term, whereof twenty-one years from the 24th June, 1841, were then unexpired, of a certain dwelling-house; and thereupon, on the 21st March, 1841, by an agreement made between the plaintiff and defendant, it was agreed that the plaintiff should, on or before the 24th June, 1841, let the same to the defendant, by a lease to be granted to the defendant for twenty-one years, the said term to commence from the 24th June, 1841. The declaration then stated general performance by the plaintiff, and that he was ready and willing to let the house to the defendant, and to grant and execute a lease; but that the defendant did not nor would not become his tenant, or accept the lease. Pleas, first, that the plaintiff was not lawfully possessed of the said house, for the residue of the said term, modo et formâ: secondly, that the plaintiff, at the time of the agreement, had not a good title to, and could not, on the 24th June, legally let the house to the defendant, or grant a lease for the said term:Held, on special demurrer, that the first plea was bad, as containing an

immaterial traverse; and that the traverse in the second plea was too large, as it included the title of the plaintiff at the time of the contract, as well as at the time when the lease was to be good. Held, also, that on general demurrer, the averment of the plaintiff's readiness and willingness to grant the lease was equivalent to an averment of his having a title to grant it. De Medina v. Norman, 820

II. Pleas in abatement.

(1). Coverture.

Verification by Affidavit.

A plea in abatement, to an action of debt, of the defendant's coverture, is a dilatory plea requiring an affidavit of verification under the stat. 4 Anne, c. 16, s. 11: and if there be no such affidavit, the plaintiff is entitled to sign judgment as for want of a plea, although part of the cause of action

accrued after the coverture. Lovell v. Walker, 299

III. Pleas in bar.*

(1). Rule to plead several Matters.

A defendant having obtained an order to plead several matters, pleaded a plea to the whole declaration, and delivered also a demurrer to one count, whereupon the plaintiff signed judgment as for want of a plea. The Court refused to set aside the judg ment, except on the terms of the defendant's striking out the demurrer, and paying the costs of his defective pleading. Baily v. Baker, 769

(2). Signature.

A plea of the Statute of Limitations, though it need not conclude with a verification, must nevertheless be signed. by counsel. Roberts v. Howard, 838 MM M 2