disbursements of the plaintiff as such assistant overseer, and which said
accounts the plaintiff had verified on oath. The libel consisted of a me-
morandum written at the foot of the accounts, charging the plaintiff with
perjury in the verification of them. At the trial it was proved that the
plaintiff had acted as assistant overseer under a warrant of appointment by
justices pursuant to the 59 Geo. 3, c. 12, by which he was impowered to
execute all the duties appertaining and incident to the office of the ordi-
nary overseer; and that the accounts in question were headed" overseers'
accounts," but were in fact the accounts of and kept by the assistant over-
seer:-Held, that the allegation was sufficiently proved-the plaintiff not
being bound to shew that all the steps anterior to the warrant for his ap-
pointment had been regularly taken, it being part of his duty as assistant
overseer to verify the accounts, and the accounts being in reality his
accounts. Cannell v. Curtis, 379.
2. In an action for a libel, the defendant cannot, either in bar of the
action or in mitigation of damages, give in evidence other libels published
of him by the plaintiff, unless such libels are of a prior date and relate dis-
tinctly to the subject matter of the libel declared on. Tarpley v. Blaby, 642.
3. To prove the publication by the defendant of a libel on the plaintiff'
contained in a letter printed in a newspaper, a manuscript of the defendant,
through several passages of which the editor had before it was composed
drawn his pen, was produced. The printed libel, being also produced, was
found to correspond exactly with the unobliterated parts of the manuscript.
The portions of the manuscript through which the pen was drawn were of
a more libellous tendency than the parts published in the newspaper, and
did not in any degree qualify them:-Held, that the manuscript was re-
ceivable in evidence, the portions that corresponded with the printed libel
to prove the publication by the defendant, and the residue to shew quo animo
that libel was published. Id.
4. Held, also, that a letter addressed by the defendant to the plaintiff
about the same period, containing expressions similar to those found in the
printed libel, was also admissible to shew quo animo the libel was published.
Id.
1. The plaintiff, having purchased certain timber growing on the land of
B., felled it, and afterwards sold it to one J. at a certain price per cubic
foot, J. to be at liberty to convert the timber on the land. The trees were
marked and measured by J., the number of cubic feet in each tree being
ascertained, but the total contents were not summed up. Some of the trees
were taken away by the purchaser:-Held, that the transfer of the whole
was complete, and consequently that the vendor had no right of lien for
the unpaid price of the timber. Tansley v. Turner, 238.
2. The defendants were the proprietors of a scribbling and fulling mill,
and were employed by H. & Co. (amongst others) to scribble and full wools
and cloths, under a stipulation that "all goods on hand" should be subject
to a lien for a general balance. H. & Co. dyed their wools on the defendants'
premises, and kept there a quantity of oil and dye-woods-the oil being
there for the purpose of being used as required by the defendants' servants
in the process of scribbling, but kept locked up, and delivered out in small
quantities by a servant of H. & Co.-and the dye-woods to be used by,
H. & Co. in dying the wools in an intermediate stage of the process of
scribbling:-Held, that the oil and dye-woods were not subject to lien.
Cumpston v. Haigh, 684.
LIMITATION OF ACTIONS.
Acknowledgment to take a Case out of the Statute.
1. To take a case out of the statute of limitations, the plaintiff gave
in evidence letters wherein the defendant stated that he would have
nothing to do with the plaintiff's claim, that he wished he would make
him a bankrupt, and that he would rather go to gaol than pay the
plaintiff in preference to other of his creditors who had executed a
composition deed. The judge left it to the jury to say whether the
letters contained an acknowledgment of the debt, telling them, that,
to entitle the plaintiff to recover, it must be such an acknowledgment
whence a promise to pay could be inferred. The jury having returned
a verdict for the defendant-The court declined to disturb it, holding
the direction to be proper. Linley v. Bonsor, 399.
2. To shew a part payment within six years so as to bring the case
within the exception in the statute, the plaintiff proved a payment of
a portion of his demand by one F., the trustee under a deed of com-
position, who was expressly instructed to make the payment as a full
satisfaction, instead of which he handed over the money as a part
payment, and took a receipt accordingly. This payment so made was
expressly repudiated by the defendant:-Held, that this was not a
payment within the exception. Linley v. Bonsor, 399.
And see ANNUITY, 1, 2-FOREIgn Law.
In covenant by assignee of lessee against lessor, upon a covenant running
with the land, the venue was laid in London. At the trial it appeared
from the evidence that the land was situate in Surrey:-Held, that, inas-
much as it did not appear upon the record that the venue was laid in the
wrong county, the defendant was not entitled to have a nonsuit entered.
Boyes v. Hewetson, 831.
LORDS' ACT—see PRISONER, 1, 2, 3.
What passes under the Word " Manor" in a Grant-see CROWN LANDS.
MAYOR'S COURT.
Bail on Removal of Cause from.
On the removal of a cause by certiorari from the Lord Mayor's
Bail on Removal of Cause from-(Continued.)
Court, the defendant is not at liberty, under the 7 & 8 Geo. 4, c. 71,
s. 2, to pay money into court in lieu of putting in and perfecting
special bail. Morgan v. Pebrer, 854.
MEMORANDA, 346, 610, 855, 856.
MISDIRECTION-see NEW TRIAL.
MONEY HAD AND RECEIVED.
Where maintainable.
J. & Co. of Rio consigned coffee to the defendants, with directions
to remit the proceeds to the plaintiffs, and advised the latter of their
having done so. The plaintiffs thereupon wrote to the defendants,
requesting to be informed of the probable amount of the remittance.
The defendants in answer merely stated that they had received the
coffee with directions to remit the plaintiffs the proceeds, but that
they had not yet disposed of it. J. & Co. having failed, the defen-
dants retained the greater part of the proceeds of the coffee in satis-
faction of a balance due to themselves from J. & Co. :-Held, that
the plaintiffs were entitled to recover the whole in an action for money
had and received. Fruhling v. Schroder, 135.
Interest in Action for-see INTEREST, 1.
Bankrupts' Estate—see BANKRUpt, 5, 6.
MORTGAGE-see LANDLORD AND TENANT, 1, 2.
Changing-see DEVISE, 1.
NEW TRIAL.
For Misdirection.
1. That the judge in his summing up omits specifically to leave to
the jury a point made in the course of the trial (his attention not
being expressly called to it), is no ground for a motion for a new trial,
if the whole of the case was substantially left to them. Robinson v.
Gleadow, 250.
2. In an action for maliciously and without reasonable or probable
cause charging the plaintiff with felony before a magistrate, it appeared
that the plaintiff had lived in the service of the defendant, and on being
discharged took away with her a trunk and bag, the property of the
defendant; that, on the following day, the defendant wrote to desire
the plaintiff to return those articles, and stating that unless she did so
he would on the Monday following cause her to be apprehended;
that, the letter being, in consequence of the plaintiff's absence, un-
answered, the defendant obtained a warrant for the apprehension of
the plaintiff, and carried her before a magistrate, who dismissed her,
the defendant declining to press the charge. The judge before whom
the cause was tried left it to the jury to say whether or not the defen-
dant had reasonable or probable cause for apprehending the plaintiff,
For Misdirection—(Continued.)
and whether he was actuated by malice or not:-Held, that this
direction was proper, and that the judge was not bound to take upon
himself to decide as to whether or not there was reasonable or pro-
bable cause-it being a mixed question of law and fact. Macdonald
v. Rooke, 359.
3. Where the plaintiff's counsel stops the judge in the course of his
summing up, because his opinion appears to be strongly adverse, and
elects to be nonsuited, he cannot afterwards move for a new trial.
Simpson v. Clayton, 691.
4. In trover for chalk dug by the defendant from the waste of the
plaintiff's manor and converted by the defendant into lime, it ap-
peared that the plaintiff's bailiff had demanded payment for the chalk,
but whether as rent or not the evidence was conflicting. The judge
not having left it to the jury to say whether or not the defendant held
the land at a rent-The court directed a new trial. Williams v. Plum-
ridge, 799.
Costs on-see Costs, 1, 2.
NONSUIT-see LOCAL ACTION.
Of Trial—see PRACTICE, 18, 19.
Of Dishonor of Bill- -see BILLS OF EXCHANGE AND PROMISSORY NOTES, 3.
To dispute Trading, &c.
A plea of denial of bankruptcy (under the new rules) does not dis-
pense with the necessity of the notice to dispute required by the
6 Geo. 4, c. 16, s. 90. Moon v. Raphael, 489.
NUISANCE-see CASE, 3, 4.
OUTLAWRY-see EVIDENCE, 4.
OVERSEER-see LIBEL, 1.
PART PAYMENT see EVIDENCE, 7-LIMITATION OF ACTIONS, 2.
PARTNERS.
What constitutes a Partnership.
It was agreed between the plaintiff and defendant that the former
should convey by horse and cart the mail from N. to B., and receive
91. per mile per annum, by quarterly payments-provided always that
the said agreement in that and every subsequent article should be
punctually and properly fulfilled: and it was further agreed that the
plaintiff should pay to the defendant 181. for one cart then in use for
the above purpose, and should also pay a proportion of repairs of
carts; and that the monies received for the conveyance of parcels
should be equally divided, each party bearing an equal portion of the
loss, if any, occasioned by loss or damage of such parcels :-Held,
that this agreement constituted a partnership between the plaintiff
and defendant, and that the mileage was an item in the partnership
Green v. Beesley, 164.
PAYMENT OF MONEY INTO COURT.
In Lieu of Bail-see MAYOR'S COURT.
Debt and Costs-see PRACTICE, 10.
On Plea of Tender or Payment.
There cannot be a partial appropriation to a plea either of tender
or of payment, of money paid into court in lieu of bail. Balls v. Staf-
ford, 426.
PECULIAR JURISDICTION- -see EXECUTORS AND ADMINISTRATORS, 1.
PLEADING.
ASSUMPSIT.
Pleas in Bar.
1. A plea to an action on an attorney's bill, that no signed bill
has been delivered pursuant to the statute, is not a plea to the
merits. Beck v. Mordaunt, 178.
2. By the 189th article of the Code de Commerce, it is de-
clared that "all actions relative to letters of exchange and to bills
to order, subscribed by merchants, tradesmen, or bankers, or
for matters of commerce, are prescribed (se préscrivent) by
five years-if the debt has not been acknowledged by an 'acte
séparé:' nevertheless the supposed debtors shall be held, if re-
quired, to affirm upon oath that they are no longer indebted;
and their widows, heirs, or representatives, that they bona fide
believe that there is nothing more due: "-Held, that a special
plea setting up this prescription as an absolute bar, without quali-
fication, was bad, the article containing an exception, that the
debt is not "acknowledged by an acte séparé." Huber v. Stei-
ner, 304.
3. Quære how far a defendant may by his plea vary the terms
of a written contract by the introduction of the custom and usage
of the trade? Whittaker v. Marson, 581.
As to what may be given in Evidence under Non-assumpsit—see Evi-
DENCE, 7-11.
4. In assumpsit upon a contract of sale of certain books to the
defendant under certain special conditions set out in the declara-
tion, the defendant pleaded in bar, that the books were sold to
him upon the conditions set out in the declaration, but subject
and according to the usage and course of dealing observed amongst
booksellers in London, by which usage and course of dealing, as
stated in the plea, a material variation was made in the terms of
the contract declared on, concluding with a verification. The
plaintiff replied generally, that the defendant of his own wrong,
and without the cause by him in his plea alleged, committed the
breach of promise in the declaration mentioned, modo et formâ,
concluding to the country:-Held, on special demurrer, that this
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