fendant no farther on such plea, than to limit the amount of the verdict against him; and 3rdly, that he could not, upon such a plea, have given any affirmative evidence of payment, even in reduction of damages. These remarks have been considered necessary in order to a proper understanding of the supplemental pleading rules, M. T., 1 Vict.; by which it will be observed the doctrine contained in the first position is altered, and the defendant may now use such admission, not in reduction only, but in bar of the action, as well as if he had pleaded payment. The second position is still law, and the last is confirmed.

"The rules alluded to are as follows:

"Payments credited in particulars of demand need not be pleaded.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 necessary for the defendant to plead the payment of such sum or sums of money.

"Rule not to apply to claim of balance.]—But this rule is not to apply 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 in reduction of damages or debt not to be allowed.Payment shall not in any case be allowed to be given in evidence in reduction of damages or debt, but shall be pleaded in bar."

In the chapter on "Payment into Court," we find another suggestion, which has been since confirmed in Armfield v. Burger, 6 M. & W. 281; viz. that in an action on a bill of exchange, bond, &c., where part only of the original amount remains due, and the defendant wishes to pay that into Court, he should address some plea of discharge to the residue, and then, as in all cases where the plea of payment is addressed to the exact sum paid in, the latter averment, viz. of no damages ultra, is superfluous and should be omitted.

We cannot venture on further extracts, but enough have been given to justify our warm recommendation of the work.

DIGEST OF CASES.

COMMON LAW.

[Comprising 9 Adolphus & Ellis, Part 4; 10 Adolphus & Ellis, Part 1; 3 Perry & Davison, Part 2; 1 Manning & Granger, Part 1; 6 Meeson & Welsby, Parts 2 & 3 8 Dowling's Practice Cases, Part 3; and a selection from 9 Carrington & Payne, Part 2;—all cases included in former digests being omitted.]

ABATEMENT.

(Of action by death.) After verdict for the plaintiff, and pending a rule for a new trial: Held, that no cause could be shown until there was a personal representative; and that cause could not be shown on behalf of the attorney, who claimed a lien for his costs.-Shoman v. Allen, 1 Man. & G. 96, n. And see PAYMENT OF MONEY INTO COURT, 2.

ACTION ON THE CASE.

(Award of prospective damages in.) In an action on the case for an injury done by the defendant's dog to the plaintiff's apprentice, whereby the plaintiff was for a long time deprived of his services, the defendant pleaded payment into Court of 10l. The jury found that the plaintiff had not sustained damages to a greater amount than 10l. before the commencement of the action, but gave 201. more for prospective damages after action brought. The Court refused to disturb the verdict. (2 Saund. 169; 3 Bing. N. C. 371.)-Hodsoll v. Stallbrass, 3 P. & D. 200; 8 D. P. C. 482.

AFFIDAVIT.

(Sworn abroad.) An affidavit, which by the jurat appears to have been sworn in Ireland, before a commissioner of the Irish Court of Queen's Bench, cannot be read in the Court of Queen's Bench in England. (4 D. P. C. 324.)—Griffin v. Smythe, 8 D. P. C. 490.

(Affidavit of merits, by whom to be made.) An affidavit of merits, sworn by the managing clerk of the defendant's attorney, must state, not only that he is the managing clerk generally, but that he had the management of the particular cause in question.-Doe d. Fish v. Macdonnell, 8 D. P. C. 501.

(Description of party in.) Where an action had been brought against the defendant by the name of W. Neely, and had proceeded to execution so entitled, it was held that an affidavit, which described the defendant as William Neely,

could not be read in support of an application against the sheriff for not returning the fi. fa.-Reg. v. Sheriff of Surrey, in Smith v. Neely, 8 D. P. C. 510.

AFFIDAVIT. See WRIT OF TRIAL.

AMENDMENT.

(Under 3 & 4 W. 4, c. 42, s. 23—When to be made.) An amendment of the nisi prius record, under the 3 & 4 Will. 4, c. 42, s. 23, must be made during the trial and before verdict, and the judge cannot give the party power to amend on a future day.

Where the original declaration stated that the plaintiff became and was tenant to the defendant of a messuage, on terms contained in articles of agreement between them, whereby the defendant agreed to grant the plaintiff a future lease for 21 years, containing certain covenants; and averred that the plaintiff covenanted to accept such lease, and that, in consideration of the premises, &c., the defendant promised the plaintiff that he should hold and enjoy the premises for the term, without any let, hinderance, &c. from the defendant or any person claiming through him; that the plaintiff remained and continued such tenant as aforesaid until, &c., and paid a quarter's rent; but that the plaintiff broke his promise in this, that one R. had lawful title to the premises under a previous lease, granted by the defendant and others, and ejected the plaintiff, &c. to which declaration there were pleas of non assumpsit, and that the defendant did not become tenant modo et formâ:-Held, that the amendment of the declaration, by such alterations and insertions as were necessary in order to treat the agreement, not as an actual demise, but merely as an agreement for a future lease, and making the breach to consist, not in the plaintiff's not holding or enjoying without eviction, but in the defendant's having no title to grant a lease, was not within the stat. 3 & 4 Will. 4, c. 42, s. 23, inasmuch as it introduced an entirely new contract and new breach.-Brashier v. Jackson, 6 M. & W. 549.

2. (Time for.) After the trial of an issue on the plea of not guilty, it is not too late to apply to amend the prayer to a replication to a plea of nul tiel record.-George v. Rookes, 8 D. P. C. 505.

And see EJECTMENT, 1.

ARBITRATION.

(Award, when "made and published.") Where an order of reference required that the arbitrator should make and publish his award in writing, ready to be delivered to the parties, or such of them as should require the same, on or before a certain day: Held, that the award was published” and “ ready to be delivered," within the meaning of the order, when it was executed by the arbitrator in the presence of and attested by witnesses: and that it could not be set aside, although the plaintiff died on the following day, and before he had notice that the award was ready. (3 M. & W.461; 9 Bing. 605; 5 B. & Adol. 518.)-Brooke v. Mitchell, 6 M. & W. 473; 8 D. P. C. 392.

ATTORNEY.

1. (Privileged communication to, what is.). Where an attorney sued for work and labour, in issuing an execution against C., and the defence was that he was employed by B. and not by the defendant: Held, that the plaintiff's agent, an attorney, might be asked whether the plaintiff had not said, on introducing B. to him, that he the plaintiff had been employed by B. to issue execution

against C. and that this was not a privileged communication.-Gillard v. Bates, 6 M. & W. 547.

2. (Uncertificated attorney-Costs-Taxation.) Where a party has employed an attorney who has not taken out his certificate, without knowledge of that fact, he is entitled, on succeeding in the cause, to recover his costs against the opposite party; if he has made advances to the attorney to an amount sufficient to recover the taxed costs. (3 Bing. 9; 2 D. P. C. 823; 3 Y. & J. 24; 1 Russ. & M. 744, 746.)

If an attorney's bill be reduced on taxation after action brought, but before trial, by less than a sixth, and the defendant afterwards succeeds in the cause on a plea of set-off, the defendant is not entitled to the costs of the taxation as costs in the cause.-Wilson v. Knapp, 8 D. P. C. 426.

3. (Taxation of bill.) An attorney's bill delivered before action brought by his executor, is not taxable. (1 C. & P. 3; 1 Salt, 89; 2 Stra. 1056; 4 Taunt. 725; 7 D. P. C. 87; 4 D. P. C. 397; 2 Myl. & Cr. 423.)- Doe d. Sabin v. Sabin, 8 D. P. C. 468.

And see AFFIDAVIT, 2.

AUTREFOIS ACQUIT.

If a party charged with murder, committed in the perpetration of a burglary, be generally acquitted on that indictment, he cannot afterwards be convicted of the burglary with violence, as the general acquittal on the charge of murder would be an answer to that part of the indictment containing the allegation of violence.-Reg. v. Gould, 9 C. & P. 364.

BANKING COMPANY.

(Execution against members of.) The proper course of proceeding under the 13th section of the 7 Geo. 4, c. 46, (the Banking Co-partnership Act), which allows executions on judgments obtained in actions against the public officer of the ocmpany to be issued against any member or members of the company for the time being, is by scire facias, and not by suggestion on the roll.— Bosanquet v. Ransford, 3 P. & D. 298; Cross v. Law, 6 M. & W. 217. BANKRUPTCY.

1. (Order of Court of Review under 6 Geo. 4, c. 16, s. 18.) Where an order is made by the Court of Review under 6 Geo. 4, c. 16, s. 18, to cause a fiat in bankruptcy to be proceeded with notwithstanding the petitioning creditor's debt has been found insufficient, the petition on which the order is made cannot be used to explain any ambiguity in the order.

Where, therefore, an order recited that G. H., public registered officer of the N. and C. bank, had petitioned the Court that the fiat should be proceeded with, and adjudicated that the debt of J. C., the petitioning creditor, was an insufficient debt, and that the debt of the N. and C. bank proved under the fiat was so incurred not anterior to the debt of the said banking company: Held, that the order was invalid, as it did not state distinctly that the debt of the N. and C. bank had been proved before the petition was made.

A clerical error, however, will not vitiate the order: Held, therefore, that stating the debt of the N. and C. bank to have been incurred not anterior to the debt of the said banking company (instead of J. C.) was immaterial.— Christie v, Unwin, 3 P. & D. 204.

2. (Retrospective operation of stat. 2 & 3 Vict. c. 29.) An act of bankruptcy having been committed on the 6th of July, a bona fide execution was issued on the 8th, under which the goods of the bankrupt were levied. On the 19th of July the 2 & 3 Vict. c. 29, was passed, and on the 24th a fiat in bankruptcy issued, under which the plaintiffs were chosen assignees: Held, that the execution was protected by the statute.- -Edmonds v. Lawley, 6 M. & W. 283.

And see WITNESS, 1.

BILLS AND NOTES.

1. (Notice of dishonour.) The following was held a sufficient notice of dishonour: "D.'s" acceptance for 2001., drawn and indorsed by you, due 30th July, has been presented for payment and returned, and now remains unpaid. (2 M. & W. 799.)—Cook v. French, 10 Ad. & E. 131, n.

2. (Promissory note, what is.) The following instrument is payable on a contingency, and therefore not a promissory note :—

"Twelve months after date I promise to pay A. and B. 500l., to be held by them as collateral security for any monies now owing to them by J. M. which they may be unable to recover on realizing the securities they now hold, and others which may be placed in their hands by him. (4 M. & W. 169.)— Robins v. May, 3 P. & D. 147.

3. (Failure of consideration-Pleading.) Plea, to an action by drawer against acceptor of a bill of exchange for 201. 8s. 6d., that before the drawing and acceptance of the bill, it was agreed between the plaintiff and defendant that the plaintiff should do certain carpenter's work for the defendant for 631.; that the defendant paid the plaintiff 43l. in part payment of the 631., and afterwards accepted the bill of exchange on account of the residue of the 631.; that the plaintiff did not perform his agreement, but neglected to perform some work, and performed in an unworkmanlike manner other work, necessary to be done under the agreement; and that the 431. was more than the whole work done was worth: Held bad, on motion for judgment non obstante veredicto, as disclosing, not a total failure of consideration for the bill, but only a partial failure of the consideration, to which the money payment and the bill were alike applicable.—Trickey v. Larne, 7 M. & W. 278.

4. (What is a promissory note.) The following document was held to be a promissory note, and to require a stamp; "August 25, 1837. Memorandum, that I, Benjamin Payne, had 5l. 5s. for one month of my mother and S., from this date, to be paid by me to her.-Benjamin Payne." (4 B. & C. 235 ; 7 D. P. C. 598.)-Shrivell v. Payne, 8 D. P. C. 441.

And see PARTNERSHIP, 1; PLEADING, 2, 5.

BOROUGH.

(Civil jurisdiction of borough quarter sessions.) An appeal lies to borough quarter sessions against an order of borough justices, under 9 Geo. 4, c. 40, s. 48, for paying the expenses of removing a pauper to a lunatic asylum, although the charter, granted to the borough under 5 & 6 Will. 4, c. 76, confers criminal jurisdiction only.-Reg. v. Inhabitants of St. Lawrence, Ludlow, 3 P. & D.

155.

CANAL COMPANY.

The judgment in Parnaby v. Lancaster Canal Company, 3 N. & P. 523, was affirmed