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MAGISTRATE.

of the one part, and Plaintiff of the other, and executed only by Plaintiff and Defendant, the declaration described it as an agreement between Plaintiff and Defendant: Held, that this was a variance which a Judge or the Court had power to amend under 3 & 4 W. 4. c. 42. s. 23. Boys v. Ancell. Page 390

MAGISTRATE.

See COSTS, 11.

Seven borough magistrates, including the mayor, assembled to appoint overseers. The mayor drew from his pocket two blank forms, with three seals ready attached, filled them up with the names of two persons of his own political party, handed them to the two magistrates sitting next to himself, and, on their being signed, immediately dispatched them by a constable to be served. As soon as the constable had left the room, the four other magistrates, who had not observed the mayor's proceedings, requested him to nominate two other overseers, and, upon his refusing to put the question, appointed them without his concurrence. The mayor afterwards caused a distress to be levied on Plaintiff for refusing to pay a rate made by the overseers appointed by the mayor. Plaintiff

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having sued the mayor in trespass, the jury were directed that they might find for Plaintiff, if they thought the mayor's appointment of overseers to be fraudulent. The jury having found it not fraudulent, the Court refused a new trial, which was moved for on the ground, that whether the appointment were fraudulent or not, it was void, as being a judicial act done by the minority of the justices assembled, without opportunity of deliberation afforded to the entire body. Penny v. Slade and Another. Page 319

MEMORANDA, 186. 365.

MINING LICENCE. See CONDITION.

MISFEASANCE.

See ACTION ON THE CASE, 2.

MONEY HAD AND RECEIVED. See DEED, CONSTRUCTION OF, 2.

MORTMAIN.

L., eighty-four years old, conveyed house and land to Plaintiffs, in June 1836, for 490l., which was paid down: L. lived in the house till March 1838, when he died: the

property was conveyed by deed indented, executed in the presence of two witnesses, and enrolled within six months after the execution, upon trust to secure the

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PATENT.

A patent was taken out in respect of new machinery for preparing flax and improved machinery for spinning flax the improvement as to spinning consisted in spinning at a shorter reach than had before been practised; but the contraction of the reach was rendered practicable by the maceration of the flax in the new machinery for preparing it; for spinning machines, varying in the distance of the reach, had been in use before: Held, that the patent was void, though the machinery for preparing the flax was new and useful. Kay v. Marshall and Others.

PAWNBROKER.

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PLEADING. See AccouNT. . ACTION ON THE CASE. CONTRACT, 2. INSURANCE, 1. LIBEL. PRACTICE, 14. 1. A declaration alleging an eviction, as a breach of a covenant for quiet enjoyment, must not leave it matter of doubt, whether the evictor might not have come in under title from the Plaintiff himself. Brookes v. Humphreys. Page 55

2. To a plea of discharge under the Insolvent Debtors' Act, Replication, that Plaintiff, though in England, had not been served with notice of the filing of Defendant's petition, Held ill. Reid v. Croft.

68

208

3. To an action of trover Defendant pleaded, that Defendant being within the jurisdiction of the Admiralty Court of Sierra Leone, Plaintiff recovered a judgment against him in that Court for the same cause of action: Held ill. Smith v. Nicolls. 4. In an action for false imprisonment, the Court allowed Defendant to plead―1. that Plaintiff had forged the acceptance of a bill of exchange ; 2. that he had issued an acceptance knowing it to be forged; 3. that Defendant had reasonable cause to believe Plaintiff had forged the acceptance; 4. that Plaintiff had obtained

given in evidence under one plea; and it not necessarily appearing that they were only one transaction. Currie v. Almond. Page 224 5. A plea pleaded to a part only of the Plaintiff's demand, ought to commence with the formula of actionem non, whether it be pleaded in bar of part of the demand, or only against the further maintenance of the action in respect of that part. Upward v. Knight.

338 6. To trover for a bill of exchange, Defendant having pleaded, that Plaintiff indorsed the bill in blank; that R. became the holder; and that Defendant, believing that R. had authority to dispose of the bill, took it of him as a pledge to secure the payment of a debt, Replication, that at the time of taking the bill from R. Defendant knew he had not authority to pledge it, Held, sufficient. Hilton v. Swan.

413

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money on the bill by false pre- 8. The bankruptcy of a sole Plaintiff before action is an issuable plea. Willis v. Hallett.

tences; the Defendant refusing

to allow the circumstances to be

465

9. To an action on a bill of ex-
change, plea that Defendants'
bankers paid the bill, and after-
wards lost it, and that it came to
Plaintiffs' hands without consider-
ation, Held, ill, for duplicity and
uncertainty. Deacon and Others,
Executors of F. Deacon, deceased,
v. Stodhart and Others. Page 594 2.
10. To an action of trespass, De-
fendant pleaded a right of way on
foot and with horses, cattle, carts,
waggons, and other carriages for
the convenient occupation of his
close K.

622

The jury having found that he had a right of carting timber and wood only from K., Held, that Plaintiff was entitled to the entire verdict, and that Defendant could not enter it distributively for such right as the jury found. Higham v. Rabett. 11. In case against Defendant for negligently driving his cart and horse against Plaintiff's horse, Held, that under the plea of not guilty, Defendant could not shew that he was not the person driving, and that the cart did not belong to him. Taverner v. Little. 678

PRACTICE.

See EXECUTION. RELEASE.

1. (1.) Defendant having been arrested, and having put in special bail in September 1838, the Court entered an exoneretur on the bail piece, under 1 & 2 Vict. c. 110.

s. 7.

(2.) An affidavit for the holding

to bail, or detention of a party under that statute, must state the deponent's belief that Defendant is about to leave England unless he be forthwith apprehended, and the facts on which such belief is grounded. Bateman v. Dunn.

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Semble, notice by the solicitor to the petitioning creditor, that a fiat has been issued against a party whose goods, or the proceeds of them, are in the hands of the sheriff under an execution, is not a sufficient claim of the goods to warrant an application for a rule to interplead. Tarleton v. Dumelow.

110

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Rippon v.

206

8. A Defendant was described in a writ of summons as of Newcastleupon-Tyne, in the county of Northumberland: Held, no misdescription; Newcastle-upon-Tyne consisting of the town and county of Newcastle-upon-Tyne, and of certain townships in the county of Northumberland. Dawson. 9. Issue was joined, in a country cause, on the 12th of June, but no notice of trial was given for the ensuing assizes: Held, that it was too soon to move for judgment as in case of a nonsuit in the ensuing Hilary term. Williams v. Davis. 227 10. In debt for 150%. Defendant having pleaded to the whole action that he had paid Plaintiff 50%., Plaintiff signed judgment by nil dicit for 1007. Held irregular. Wood v. Farr. 11. Plaintiffs signed judgment and taxed costs on the 16th of July: at that time certain costs were due to Defendant, on a rule of Plaintiffs which had been discharged: Defendant, to avoid execution, paid debt and costs in the action, insisting, that he was entitled to set off the costs of the rule discharged, but not making any formal demand: upon motion,

VOL. V.

247

afterwards, the Court directed Plaintiffs to pay those costs. Abernethy and Another v. Paton. Page 276 12. (1.) Where Defendant's place of abode could not be discovered at the time of issuing a writ of summons, Held, that it was sufficient to describe her, as of her last known place of abode.

(2.) By leave of the Court or a Judge, a writ of alias or pluries summons, or a distringas thereon, may be issued and bear teste, after the previous writ of summons has expired.

(3.) An alias pluries to compel appearance taken out after a distringas had been obtained for the purpose of proceeding to outlawry, was held available notwithstanding such distringas, the distringas never having been acted on or delivered to the sheriff. Norman v. Winter. 13. A return to a writ of false judg

279

ment, that the Plaintiff in error has not given security for prosecuting his suit, is ill. Crookes v. Longden. 410 14. To an action on a promissory note, Defendant pleaded that, after the making the note, Plaintiff drew a bill on Defendant, which Defendant accepted, and Plaintiff received in satisfaction of the note. Plaintiff replied that he did not draw, Defendant did not accept, and Plaintiff did not receive the bill in satisfaction. Defendant having demurred to the replication, Held, that the Court

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