R. V. Richards, contrà, contended that the merits, relating to the title to the land, could not be discussed in this motion, and that the Court would exercise summary jurisdiction over the attorney.

Lord DENMAN, C. J. This rule must be made absolute. When it appeared that Mrs. Oliver had an attorney, to whom she referred, it was improper to obtain her signature, with no attorney present on her part. If this were permitted, a very impure, and often a fraudulent, practice would prevail.

*623] *Littledale, J. It was not correct to prevail upon this woman to sign a paper, which in all probability she did not understand. WILLIAMS, J., Concurred.

Rule absolute.

DAVIS against GYDE. Tuesday, January 27.

To an avowry for rent, the plaintiff pleaded in bar, as to 10%., part of the rent, that he made his promissory note for the amount payable to the defendant at two months, which had not expired at the time when, &c., and delivered it to the defendant; that he received the note for and on account of the said sum; and that he at the time when, &c., held the note for that sum:

Held, that the plea was no answer as to the 107.

A promissory note given and received for rent, does not extinguish the claim for such rent, which is a debt of a higher degree than that arising upon the note. Nor does the receipt of such note of itself suspend the right of distraining.

If the giving of such note be pleaded in bar to an avowry, it must be shewn that the note was accepted in satisfaction; or that, by special agreement or from other circumstances pleaded, it suspended the right of distress.

REPLEVIN. Avowry, for 117. 58., one quarter's rent of a dwelling-house held by the plaintiff as tenant to the defendant, by virtue of a demise thereof to the plaintiff theretofore made at a certain yearly rent, &c. Pleas, (July, 1834): First, that the plaintiff did not hold the premises of the defendant under the supposed demise. Second plea, as to 107. 10s., parcel of the sum alleged to be due for rent, "that before the said time when, &c., viz., on the 7th of April, in the year 1832, the plaintiff made his certain promissory note in writing, and thereby promised to pay the defendant, or order, at a certain time, which had not elapsed at the said time when, &c., viz., two months after the date thereof, a certain sum, viz., the said sum of 107. 10s., parcel, &c.; and that the plaintiff then delivered the said note to the defendant, and the defendant then received the said note of the plaintiff, for and on account of the said sum of 107. 10s., parcel, &c. And that the defendant, at the said time when, &c., held the *624] said note for the said sum of 107. 10s., parcel, &c. Verification. Third plea, as to the residue of the supposed rent, that no part thereof was due from the plaintiff to the defendant in manner, &c. Issues were joined on the first and third pleas; to the second plea there was a general demurrer. Joinder in demurrer.

R. V. Richards, in support of the demurrer. The giving of the note could not extinguish the claim for rent, that being a debt of a higher nature: and, if it is to be contended that the note was received in satisfaction, the answer is that the plaintiff has not so pleaded. In two cases mentioned in Buller's Nisi Prius, Harris v. Shipway, Bull. N. P. 182 a, 7th ed., and Ewer v. Lady Clifton, Bull. N. P. 182 a, 7th ed., it was held that a note given for rent did not prevent the landlord from distraining for the same rent, for it is no alteration of the debt till payment." Acceptance of a note for balance of interest on a bond is no waiver of the specialty security: Curtis v. Rush, 2 Ves. & B. 416. Knowles, contrà. The cases cited from Buller's Nisi Prius are distinguishable from this. It does not appear there that the notes had not been dishonoured when the action was brought; and this supposition is favoured by the words

"for it is no alteration of the debt till payment," and by the manner in which the next placitum is introduced; Bull. N. P. 182 a, 7th ed. If they were dishonoured, no doubt the right of distraining revived. In Kearslake v. Morgan, 5 T. R. 513, a plea that the defendant, for and on account of a parcel of the sum claimed, indorsed a note to the plaintiffs, and delivered it so indorsed [*625 to them, and they accepted it for and on account of the said sum, was considered sufficient by the Court, though it did not state that the note was received in satisfaction. [COLERIDGE, J., referred to Richardson v. Rickman, 5 T. R. 517, cited in Kearslake v. Morgan, 5 T. R. 514.] It is true that in that case the bill appeared to have passed into the hands of a third person; and it was urged in Kearslake v. Morgan, 5 T. R. 514, that the note there might in like manner have been negotiated, whereas here it is said that the defendant held the note at the time of the distress; but at all events it was an instrument which he might at any time have negotiated; the delivery of it to him was equivalent to a payment. [Lord DENMAN, C. J. It might be taken as an additional security, in case the goods, if distrained, should prove insufficient.] If the giving of the note could not avail as a payment or satisfaction, at least the defendant's receipt of it operated as an agreement to suspend the right of distress till the note should be dishonoured. That there may be such a suspension appears to be admitted by Lord Ellenborough in Skerry v. Preston, 2 Chitt. Rep. 245. [Lord DENMAN, C. J. The taking of a note, or other transaction of that kind, may be evidence of an agreement to suspend the right. But here we cannot know from the plea what may have passed upon this subject.]

R. V. Richards, in reply. In the case of a simple contract debt, the taking of a note would suspend the right to sue. (Simon v. Lloyd, 2 Cro. M. & R. 187.) But such a security has never been pleaded as suspending a claim of rent, which ranks at least with a specialty debt. It is said, 1 Roll. Abr. Debt (Extinguishment), *(A.) pl. 2, p. 605, I. 1, that rent due on lease for years is extinguished by accepting a bond, " for that the rent is higher, being

[*626

real." Nor is the note pleaded here as taken in suspension. The plaintiff, however, to avail himself of the note, should have been able to plead that it was received in satisfaction, or the amount in fact paid. Nothing to this effect appears. It is not even shewn whether the rent was due or not when the security was given. And the note is stated to have been in the defendant's hands at the time of the distress.

Lord DENMAN, C. J. I am of opinion that the plea is insufficient. It is laid down in Gage v. Acton, 1 Salk. 326; 1 Comyns's Rep. 67, that rent (whether the demise be by parol or deed) is a debt of equal degree with a debt by specialty. If so, a promissory note constitutes a debt of an inferior degree, and cannot extinguish a claim of rent. Nor can it operate in suspension of such claim; or, if it could, it should have been pleaded accordingly. Kearslake Morgan, 5 T. R. 513, is not applicable. More took place there than the mere giving of a note; the security of a third party was given: here the whole transaction is between the plaintiff and defendant. Supposing even that the defendant's claim in this case were a mere ordinary debt, the plea would be insufficient, as it makes no averment that the note was received by way of satisfac tion, or upon an agreement with the landlord that it should suspend his claim of rent.

LITTLEDALE, J. I am of the same opinion. That a demand for rent [*627 ranks with a specialty debt, appears *from Gage v. Acton, 1 Salk. 326; 1 Comyns's Rep. 67, and 1 Com. Dig. Administration, (C. 2.) p. 340, where it is said that an executor may pay amends for a covenant broken, before a bond, for they are in equal degree: "or, rent due upon a lease for years;" and that, "tho' it be a lease by parol." That being so, can the taking of a promissory note by the lessor (which forms only a simple contract debt) be given in evidence or pleaded in bar in such an action as this? In Com. Dig. Pleader, 2 W. 46, it is said that "to debt upon a contract, the defendant may plead a bond

given for the same debt," but it is added that he cannot plead "an agreement to accept a bond of the executor or administrator, and a bond given accordingly, to debt upon a bond by the testator:" "nor an agreement by parol to give a longer day of payment," to which last point Cro. Eliz. 697, Hayford v. Andrews, is cited, where the Court said, "an agreement by parol cannot dispense with an obligation." And in Mease v. Mease, 1 Cowp. 47, it was held that a parol agreement would not be admissible in evidence against a bond. All these authorities shew that, if there be a claim on specialty, or a claim of rent, which is on the same footing, a parol agreement cannot be pleaded or given in evidence to get rid of it.

WILLIAMS, J. It is not pleaded that this note was received in satisfaction; and, for the reasons already given, the receipt of it could not of itself extinguish the claim of rent. Then did the taking of the note suspend the right of distress till it should be due or dishonoured? Nothing is disclosed by the plea to raise that defence. It ought to have been expressly *shewn that, *628] either by agreement between the parties or from some other cause, the note had such an operation. I therefore think that the plea is no answer.

COLERIDGE, J. I am of the same opinion. It is not insisted that the taking of this note operated as a payment, or an extinguishment of the claim for rent, but it is said that the right of distress was suspended. The Court, however, cannot give effect to this defence, as the plea is framed, unless they treat it as a necessary legal consequence, that the receipt of this note took away the power of distraining until the note should be due. But that is not the necessary consequence. If there was any thing that could give the transaction such an effect, it should have been specially pleaded. Judgment for the defendant.

ATKINSON against HAWDON. Tuesday, January 27.

If drawer sues acceptor upon the bill, and fails in consequence of having altered the bill in a material part, he may still recover upon counts on the original consideration.

ASSUMPSIT by drawer against acceptor of a bill of exchange stated to have been made on the 28th of December, 1833, for 197., payable to plaintiff two months after date. Counts for goods sold and delivered, and on an account stated. First plea, to the first count, that the defendant did accept the said supposed bill of exchange, but that the same, when he accepted it, was dated on a certain day other than the day in that behalf in the declaration mentioned, viz. the 30th of December, 1833; and that the plaintiff, after the defendant accepted the said bill, and after the same had been issued and complete, viz. on, *629] &c., without the privity *or assent of the defendant in that behalf, and without the said bill being restamped, altered the said bill in a material part, viz. by altering the day of the date thereof from the said 30th, &c., to the 28th day of December, 1833; (See Cock v. Coxwell, 2 Cro. M. & R. 291;) verification. Second plea: as to the alleged cause of action in respect of goods, that after the making of the promise in respect of that cause of action, and before the commencement of this suit, viz. December 30th, 1833, an account was stated between the plaintiff and defendant of and concerning the last-mentioned cause of action; and upon that occasion the defendant was found indebted to the plaintiff in the sum of 197., for which sum the plaintiff on the last-mentioned day made his bill of exchange, payable to the plaintiff or order two months after date, and directed to the defendant, who accepted the same for and on account of the said 197. so due and owing from him to the plaintiff; verification. Third plea, as to the account stated, non assumpsit.

Replication as to the second plea, that although true it is that the defendant was found to be in arrear and indebted to the plaintiff in the sum of 197., and

that the plaintiff did make and the defendant did accept the bill of exchange in the second plea mentioned on account of that sum in manner and form, &c., nevertheless the plaintiff saith that before the commencement of this suit the said bill of exchange in the said second plea mentioned became due, and the defendant did not then or at any other time before or since the said bill became due, and before the commencement of this suit, pay the said sum of money in the said bill of exchange mentioned, or any part thereof; verification. As to the rest of the declaration, nolle prosequi.

[*630

Rejoinder. That after the defendant had accepted the said bill in the said second plea mentioned, and after the same had been issued and complete, viz., on the 30th of December, 1833, he the plaintiff, without the privity or assent of the defendant in that behalf, and without the said bill being restamped, altered the said bill in a material part, viz., by altering the day of the date thereof to the 28th of December, 1833; verification. General demurrer and joinder.

Busby, in support of the demurrer. The rejoinder is no answer to the repli cation. The bill being altered in a material respect by the plaintiff, one of the original parties to the instrument, he was remitted to the debt in consideration of which it was given; Sutton v. Toomer, 7 B. & C. 416. It has, indeed, been decided that, in consequence of a bill being altered, the holder's remedy for his debt was altogether gone; Alderson v. Langdale, 3 B. & Ad. 660; but there the defendant was the drawer, and the plaintiff, who had altered the bill, was an indorsee. He, by such alteration, had deprived the drawer of his remedy against the acceptor, and could not, therefore, sue the drawer upon the original con sideration. But here the parties are drawer and acceptor; the accepter is not put in any worse situation by the destruction of the bill; and, it not being paid, there is no reason that the drawer should not recover for the original debt. Besides, the rejoinder does not shew when the alteration took place; it may have been after the bill was due and dishonoured.

*Wightman, contrà. The distinction between a drawer and an ac[*631 ceptor sued upon a vitiated bill must be admitted; and the rejoinder, is therefore bad. But the replication is also bad. It merely alleges that the bill mentioned in the second plea became due and the defendant did not pay it. No particular laches is imputed. Taking the case upon the statement in the replication, it does not appear that the plaintiff still holds the bill: indeed, it may be presumed that if he did he would sue upon it. Then, if the bill is indorsed and outstanding, and the defendant liable to be called upon by the holder, the plaintiff cannot resort to the original consideration. [Lord DENMAN, C. J. This objection should have been specially pointed out.]

PER CURIAM.(a)

Judgment for the plaintiff.

*The KING against The Rev. THOMAS HENRY MIREHOUSE, Clerk, and CHARLES ABRAHAM ELTON, Fsquire, Justices of SOMERSETSHIRE. Wednesday, January 28

[*632

On motion for a mandamus to justices to grant a distress warrant for levying a highway rate, it appeared that the rate was contested, on the following grounds.

1. The lands in respect of which payment had been refused, were part of a district inclosed thirty-five years ago by act of parliament, having none but private roads, which were repaired by the landholders, and never having been assessed to the highway rate. 2. No statute duty had been called for, in respect of these lands, before making the present rate. 3. The special session at which the order for making such rate was signed had been convened without notice from the high constable. 4. The order was signed by two persons not stating themselves to be justices. 5. The rate was not dated.

(a) Lord Denman, C. J., Littledale, Williams, and Coleridge, Js.

The occupier against whom the warrant was applied for had not appealed to the sessions, but he threatened the justices with an action if they granted a warrant, and the opposite party made no express offer to indemnify them,

Held, that a mandamus ought not to go, it being doubtful whether, upon some objection among those taken, the justices might not be liable to an action if they granted the

warrant.

ERLE, in the last term (November 11th), obtained a rule calling on the above-mentioned justices to shew cause why a mandamus should not issue, commanding them to issue a distress warrant for levying upon the goods of James Maclean a sum assessed upon him in respect of lands occupied by him in the parish of Clevedon, Somersetshire, for a highway rate.

It appeared by the affidavits in support of the rule, that the rate purported to be made under the authority of an order of two justices, signed at a special session for the highways on the 24th of March, 1834. The order stated that an application had been made by the surveyors for the parish of Clevedon, and evidence given before the justices on oath, "that the duty directed to be performed, and the money authorised to be collected and received by an act passed," &c. (13 G. 3, c. 78), "have been performed, applied, and expended, and that the highways," &c., "within the said parish are so far out of repair as to render application for a highway rate for the said parish, not exceeding 6d. in *633] the pound, absolutely necessary for the repair thereof;" and the order directed such a rate to be forthwith made upon all the occupiers of lands, &c., within the said parish, and the money to be applied towards the repairing of such highways, &c. One of the surveyors of the highways for Clevedon now deposed that, at the time of obtaining the order, he had informed the justices upon oath, as the fact was, "that the duty directed to be performed, and the money authorised to be collected and received, by the before-mentioned statute, had been performed, applied, and expended, and also that the highways, roads, and bridges were so far out of repair as to render application for a highway rate for the said parish," &c., necessary, as stated in the order.

The lands in respect of which Maclean was assessed were part of certain common and waste lands divided and allotted by commissioners under an inclosure act (39 G. 3, c. 41, private,) which empowered the commissioners to set out public carriage roads, and directed that no person should be chargeable (over and above statute duty) towards the repair of such roads, until the same should be certified as fit for passage, in the manner prescribed by the act, after which they should be from time to time supported and kept in repair in the same manner as other public roads in the parish. The commissioners were also empowered to set out private roads, to be repaired as they should direct. No pub lie roads were thought necessary, or were set out, by the commissioners, but they set out several private roads, to be used by the owners and occupiers of allotments, and the repair of these was charged upon the several allotments, *634] and was done from time to time, after the inclosure, by the occupiers *of those allotments, who had a distinct assessment for their own roads, and (through ignorance, as it was stated, in the surveyors of Clevedon) were never, down to the present time, rated to the repair of the public highways of the parish; nor did any of these highways pass through the inclosed lands. Maclean, refusing to pay the present rate, was summoned before the two justices against whom this application was made. He attended, and the surveyor exhib ited an information against him for nonpayment of the rate. Maclean insisted that the rate was illegal, and threatened the justices with an action if they signed a distress warrant against him. The justices adjourned the hearing, and ultimately refused the warrant.

The affidavits in opposition to the rule stated that, at a meeting of justices on the 17th of March, which Mr. Mirehouse and Mr. Elton attended, the parties seeking to enforce the present rate had applied for an order to warrant an assessment comprehending the lands inclosed under the act, in lieu of another