for which the plaintiff sought to recover in the present action had been paid for. POLLOCK, C. B.-There is no plea of payment, and no sum is given. credit for in the particulars of demand annexed to the record. Crompton. The plaintiff has admitted this payment in a particular referred to in the short particular of demand annexed to the record. The particular annexed to the record is : "In the Exchequer of Pleas, between David Hart, plaintiff, and George Middleton, defendant. "This action is brought to recover the sum of 617. 178. 7d., the full particulars of which have been already delivered, and exceed three folios; and this account does not include three several sums of 217. 178. 7d., 6l. 98. 6d., and 57. 28., which are not sought to be recovered in this action, the credit in respect thereof not having yet expired. Above are the particulars of the plaintiff's demand in this action, *for the recovery whereof he will avail himself of the whole or any part of the declaration. "Dated this 28th of October, 1845. "Yours, &c., "To Messrs. Jacques & Edwards, [*11 "J. MICHAEL, 9, Red Lion Square, Plaintiff's Attorney. Attorneys or Agents for the above-named Defendant." POLLOCK, C. B.-There must always be a plea of payment unless the plaintiff admits the payment in his particulars of demand. The particulars of demand annexed to the record do not admit this payment, but they merely refer to full particulars already delivered. Crompton. Those full particulars are admitted under a judge's order; the plaintiff's own notice to admit describing them as "No. 22. Particulars of plaintiff's demand against defendant, signed by plaintiff." Date, 24th September, 1845." "Original or duplicate served on defendant on or about 25th September, 1845." POLLOCK, C. B.-This, which is called "full particulars," is a paper delivered by the plaintiff to the defendant, as giving an account of his claim; it is not a particular of demand delivered in the action. Crompton.-I submit, that, as it is distinctly referred to in the particulars annexed to the record, I may use it. POLLOCK, C. B.-No doubt you may use it with the jury as to any fact, but not to alter the rules of pleading, which are, that you must plead payment in all cases except those in which such a plea is dispensed with under the rule of Trinity Term, 1 Vict. By that rule it is ordered, that, "in any case in which the plaintiff (in order to avoid *the expense of a plea of payment) shall have given credit in the particulars of his demand for any sum or sums of money therein admitted to have been paid to the plaintiff, it shall not be VOL. II.-3 B2 [*12 necessary for the defendant to plead the payment of such sum or sums of money; but this rule is not to be applied to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance, without giving credit for any particular sum or sums. Payment shall not be allowed to be given in evidence in reduction of damages or debt, but shall be pleaded in bar." I think that that rule does not apply to an account merely referred to as this is in the particulars annexed to the record, but I will give Mr. Crompton leave to move to reduce the damages to 1s., or to enter a verdict for the defendant, if the Court should think the plea of payment unnecessary. Verdict for the plaintiff for 197. 108.; with leave to move to reduce the verdict to 18., or to enter a verdict for the defendent, if the Court should be of opinion that a special plea was not necessary.(a) Jervis and H. Horn, for the plaintiff. Martin and Crompton, for the defendant. [Attorneys-Michael, and Jacques & Edwards.] (a) No motion was made. *13] *MANNING v. LUNN and THRUPP. Dec. 13. A. demanded £20 as rent due from B.; and B. having claimed certain deductions which A. would not allow, B. then put down twenty sovereigns, and said, "I tender you £20 under protest:"-Held, a good tender, as this was not a conditional tender, the words "under protest" merely importing that B. did not acquiesce in the demand of A., and did not mean to preclude himself from recovering the money back again if he could. The land tax is a "parliamentary tax," within the meaning of an agreement to pay rent" and all taxes parliamentary and parochial." TRESPASS for taking the plaintiff's goods.-Plea, Not guilty by statute. It was opened by Humfrey, for the plaintiff, that the plaintiff had taken a house of Mr. Munro, at a rent of £80 a year, payable quarterly, and, that, a quarter's rent being due, the defendants had distrained on the plaintiff's goods, notwithstanding that the rent had been tendered before the goods were distrained. Indeed, there had not only been a tender of the rent by an offer of 137. 108., and receipts for land-tax and sewers-rate, making up the £20, which the defendants ought to have accepted, but there was afterwards a tender of the full sum of £20, without any regard to the sums which the plaintiff had paid for landtax and sewers-rate, which were both taxes which a tenant was bound to pay in the first instance, but entitled to deduct afterwards from the rent which he paid to his landlord. It was proved by a servant of the plaintiff, that the defendant Thrupp came to the house on the 6th of October, 1845, and demanded £20, as a quarter's rent due at the preceding Michaelmas; and that the plaintiff's wife produced a sum of 137. 10s., and offered it to him, together with a land-tax receipt for 47. 108. and a sewers-rate receipt for £2. This the defendant Thrupp refused to accept, and said he would distrain. The plaintiff's wife then put down twenty sovereigns, and said, “I tender you £20 under protest." This was refused, and the plaintiff's goods were seized by the defendants. Jervis, for the defendants.-I shall show that the plaintiff took this house of Mr. Munro, under a written agreement, *dated the 8th [*14 of May, 1844, at the "clear yearly rent of £80, payable quarterly;" and by this agreement the plaintiff expressly agreed to pay the rent, "and all taxes, parliamentary and parochial." Now, whether the sewers-rate be a parliamentary tax or not, which may be doubtful, the land-tax is clearly a parliamentary tax. POLLOCK, C. B.-There is no doubt about that. Jervis.-That being so, the first tender is clearly wrong, as it should have been a tender of £18, even admitting that the sewers-rate is not a parliamentary tax; and with respect to the second tender, I submit, that a tender "under protest" is no tender at all. In the case of The Marquis of Hastings v. Thorley, 8 C. & P. 573, it was held, that, if a person tendering a sum of money say, "I tender you £21 in payment of the half-year's rent due at Lady Day last," it is a bad tender. POLLOCK, C. B.-A tender, to support a plea of tender, must be unconditional, and must not be a tender in full of all demands; but all that I understand by the words "under protest" is "Take it at your peril." In the case of The Marquis of Hastings v. Thorley, Lord Abinger said, "I am of opinion that this was not a lawful tender, because, if the agent had received this money, he would, by receiving it, have admitted that that sum was the amount of half a year's rent. If it had been tendered generally, and without any condition or qualification, it would have been good. If a man makes a tender, he cannot do it in such terms as by the taking of the money he causes the other party to make any admission, because, if he does so, it is a conditional tender, and therefore bad." In the present case, all that the protest means is, "I don't admit that you are right; I protest against being precluded from saying hereafter that I did not acquiesce in the de[*15 mand." A tender under protest is just as good as any other tender; as the person tendering merely says thereby, "I do not mean to preclude myself from recovering this money back again, if I can." Jervis.-If that is your Lordship's opinion, I shall not put in the agreement, and shall address the jury as to the damages only. The agreement was not given in evidence, and Jervis addressed the jury in mitigation of damages. Verdict for the plaintiff.-Damages £50. Humfrey and Cleasby, for the plaintiff. [Attorneys-Lloyd, and Few & Co.] *16] *Second Sitting at Westminster in Easter Term, 1846. BEFORE MR. BARON ALDERSON. WINTERBURN v. BROOKS and Others. April 25. In an action for assaulting the plaintiff, the defendants pleaded, that the plaintiff was beating "a certain boy whose name is to the defendants unknown," and that the defendants, to prevent his beating "the said boy," quietly laid their hands on him. Replication, that "the said boy," in the plea mentioned "was one Barnes W., and was and is the lawful son of the plaintiff," of the age of ten years, and that "the said Barnes W." refused to obey his lawful commands, whereupon the plaintiff moderately chastised him. Rejoinder, that the plaintiff, at the time, when, &c., was beating "the said Barnes W." with more violence than was proper and reasonable. Rejoinder, that the plaintiff "did not beat," &c., the said Barnes W. "with more violence than was proper and reasonable." On the part of the plaintiff, evidence was given, that the plaintiff, just before the defendants interfered with him, had been beating his son Barnes W., who was ten years old, with a strap, but not immoderately; but the last witness for plaintiff stated that the plaintiff had another son, aged eight. It was proved for the defendants, that, after the plaintiff had beaten his elder son, Barnes W., he began beating the younger, when the defendants laid hold of him: Held, that, on these pleadings, the issue was limited to the question of the excessive beating of Barnes W., and that anything the plaintiff did to the younger boy was not in issue; and the judge at the trial would not allow any amendment as to the name of Barnes W., as the two boys had both been beaten, and if the issue had been different the plaintiff might have adduced other evidence as to the extent of the beating of the younger boy. FALSE imprisonment.-The declaration stated, that the defendants assaulted the plaintiff, and gave him a great many violent blows, &c., and forced and compelled him to go along divers public streets to a police-station, and there imprisoned him for two hours. Pleas-1st, Not guilty; 2d, except as to such part of the declaration as relates to the giving the plaintiff a great many violent blows and strokes, and imprisoning him and keeping him in prison, "that the plaintiff, just before the time when, &c., in the declaration mentioned," to wit, on, &c., "had made an assault on a certain boy whose name is to the defendants unknown, and was then, and at the same time when, &c., and in the presence of the defendants, beating, ill-treating, most cruelly striking, and dangerously wounding the said boy, in breach of the peace of our lady the Queen, whereupon the defendants requested the plaintiff to desist from the said assault and breach of the peace; and because the plaintiff did not nor would desist from the said assault and *breach *17] of the peace, but continued the same, the defendants, at the said time when, &c., to preserve the peace of our said lady the Queen, and to part the plaintiff from, and to prevent him from further beating, illtreating, striking, and wounding the said boy, gently laid their hands on the plaintiff, and restrained him from continuing the said assault upon the said boy;" and the plea went on to state, that, because the plaintiff was in a violent state of passion, and was, unless prevented, likely and about to renew the assault, and because no constable was present and in view of the committing of the breach of the peace, to whom the plaintiff might be lawfully given in charge, the defendants did gently lead the plaintiff along the streets to the said police-station to give him in charge to a constable, to be by him restrained from renewing the breach of the peace; and that the defendants there did give information of the said breach of the peace to a certain police officer, whose name is to the defendants unknown, but that he refused to take the plaintiff into custody; whereupon the defendants allowed the plaintiff to go free and depart. Replication to the second plea, "that the said boy in the said last plea mentioned was one Barnes Winterburn, and was and is the lawful son of the plaintiff, and an infant of tender age, within the age of twenty-one years, to wit, of the age of ten years, and still domiciled under the paternal roof, and still under the care, education, and control of the plaintiff; and the plaintiff further says, that, just before and at the said time when," &c., to wit, on, &c., "the said Barnes Winterburn, so being such son of the plaintiff as aforesaid, behaved and conducted himself saucily and contumaciously towards the plaintiff (his father), and then refused to obey his lawful commands relating to his duty as such son; whereupon the plaintiff then moderately and in a reasonable manner, chastised and corrected the said Barnes Winterburn, his said son, as he lawfully might for the cause aforesaid;" and in so doing did necessarily a little beat, &c., the said B. W., the same being a proper, reasonable, and moderate [*18 correction and chastisement in that behalf, &c. Rejoinder: "And the defendants, as to the replication of the plaintiff to the plea of the defendants lastly above pleaded, say, that, just before the said time when, &c., the plaintiff assaulted the said Barnes Winterburn, and was, at the said time when, &c., beating, ill-treating, striking, and wounding the said Barnes Winterburn with more violence than was proper and reasonable for the purpose, and on the occasions in the said replication mentioned," (concluding with a verification). Surrejoinder: "And the plaintiff, as to the rejoinder of the defendants by them above pleaded to the replication of the plaintiff by the plaintiff above replied, to the plea of the defendants lastly above pleaded as to the said several trespasses in the said declaration mentioned, except as to such part of the said declaration as relates to the giving and striking the plaintiff a great many violent blows and strokes, and imprisoning the plaintiff, and keeping and detaining him in prison, says, that he the plaintiff did not assault, beat, ill-treat, strike, or wound the said Barnes Winterburn with more force and violence than was proper or reasonable for the purpose, or on the occasion in the said last replication of the plaintiff mentioned, in manner and form as in the said rejoinder of the defendants is alleged," (concluding to the country). It appeared from the evidence of the plaintiff's witnesses, that, on Sunday, the 21st of December, 1845, at about two o'clock, the plaintiff's son, Barnes Winterburn, who was ten years old, had gone to an unfin |