ther in so doing he was guilty of any mal-
ice in fact. Bromage v. Prosser, E. 6 G. 4.
12. Where in an action by an indorsee
against the indorser of a bill of exchange
dishonored on presentment for payment,
the declaration contained an averment
that the bill was accepted by the drawee:
Held, that this was unnecessary, and that
the plaintiff need not prove it. Tanner
v. Bean, T. 6 G. 4.
Where in an action by the indorsee
against the maker of a promissory note
payable with interest on demand, the
plaintiff having proved that he gave value
for it, the defendant tendered evidence of
declarations made by the payee when the
note was in his possession, that he
(the payee) gave no consideration for it
to the maker: Held, that this evidence
was inadmissible, as the plaintiff could
not be identified with the payee, and the
note could not be treated as over-due at
the time of the indorsement. Barough v.
White, T. 6 G. 4.
14. Where an indictment charged the de-
fendant with conspiring falsely to indict
A. B. with intent to extort money, and the
jury found them guilty of conspiring to
indict with that intent, but not fulsely:
Held, that enough of the indictment was
found to enable the court to give judg
ment. The King v. Hollingberry and
others, T. 6 G. 4.
receipt for a penalty of 5. and 17. duty.]
The proper stamp for such a note in
1814, was a three shilling stamp: Held,
that as it appeared upon the face of the
note that it had been issued without hav-
ing affixed to it a stamp equal in amount
to that required by law, the commissi-
oners had no power after it had been is-
sued, to affix to it another stamp, and
therefore, that it was not receivable in
evidence either in support of the count for
the promissory note, or of the money 13.
counts. The defendant, on being applied
to by the plaintiff for payment of interest,
stated that he would bring her some on the
following Sunday: Held, that although
this was an admission that something was
due, still as it did not appear what the
nature of the debt was, or that it was due
to the plaintiff as executrix, or in her own
right, or that it was one for which assump-
sit would lie, the plaintiff was not entitled
to recover even nominal damages, and a
nonsuit was entered. Green, executrix,
v. Davies, E. 6 G. 4.
11. In an action for words spoken of the
plaintiffs in their trade as bankers, it was
proved that A. B. met the defendant and
said, "I hear that you say that the plain-
tiff's bank at M. has stopped. Is it true?"
Defendant answered, "Yes it is. I was
told so. It was so reported at C., and
nobody would take their bills, and I came
to town in consequence of it myself." It
was proved that C. D. told the defendant
that there was a run upon the plaintiffs'
bank at M. Upon this evidence, the
learned Judge, after observing that the
defendant did not appear to have been
actuated by any ill will against the plain-
tiffs, directed the jury to find their ver-
dict for the defendant, if they thought that
the words were not maliciously spoken:
Held, upon a motion for a new trial, that
although malice was the gist of the ac-
tion for slander, there were two sorts of
malice, malice in fact and malice in law;
the former denoting an act done from ill
will towards an individual; the latter a
wrongful act intentionally done, without
just cause or excuse; and that in ordi-
nary actions for slander, malice in law
was to be inferred from the publishing|
the slanderous matter, the act itself being
wrongful and intentional, and without any
just cause or excuse; but in actions for
slander, prima facie excusable on account
of the cause of publishing the slanderous
matter, malice in fact must be proved:
Held, therefore, in this case, that the
Judge ought first to have left it as a ques-
tion for the jury, whether the defendant
understood A. B. as asking for informa-
tion, and whether he had uttered the
words merely by way of honest advice to
A. B. to regulate his conduct, and if they
were of that opinion, then, secondly, whe-
VOL. X.-113
15. The owner of a check drawn upon a
banker for 501., having lost it by acci-
dent, it was tendered five days after the
date to a shopkeeper in payment of goods
purchased to the value of 61. 10s., and
he gave the purchaser the amount of the
check, after deducting the value of the
goods purchased. The shopkeeper the
next day presented the check at the
banker's, and received the amount: Held,
that in an action brought by the person
who lost the check against the shop-
keeper, to recover the value of the check,
the jury were properly directed to find
for the plaintiff if they thought the de-
fendant had taken the check under cir-
cumstances which ought to have excited
the suspicions of a prudent man: Held,
secondly, that the shopkeeper having
taken the check five days after it was
due, it was sufficient for the plaintiff to
show that he once had a property in it,
without showing how he lost it.
v. Halling, and others, T. 6 G. 4.
16. An order made by the court for the re-
lief of insolvent debtors, and delivered to
the jailer, in whose custody the prisoner
was, is evidence of his discharge under
statute 53 G. 3, c. 102, s. 10. Neal v
Isaacs, T. 6 G. 4.
335
Declaration for an escape stated that
the plaintiff in Easter term, 5 G. 4, in the
King's Bench, recovered against one H.
W. 791. as by the record appeared; that
in Trinity term, in the fifth year afore-
said, such proceedings were had in the
said court, that it was considered that the
plaintiff should have execution against
the said H. W. for the damages afore-
said, according to the force, form, and
effect of the said recovery, by default of
the said H. W., as by the record of the
said last mentioned proceedings still re-
maining in the said court appears: and
thereupon, on, &c., in Trinity term, in the
fifth year aforesaid, the said H. W. was
committed to the custody of the marshal!
in execution for the damage aforesaid,
and escaped. Plea, not guilty. At the
trial, the plaintiff proved the original
judgment in the King's Bench, and that
a committitur issued thereon, but he did
not prove any judgment in scire facias.
It was held, that the allegation of the
judgment in scire facias was immaterial,
and need not be proved. Bromfield v.
Jones, Esq., T. 6 G. 4.
380
18. Where a bill of exchange was disho-
nored by the acceptor, and due notice
of the dishonor was given to the differ-
ent parties, and the indorsee having com-
menced actions by original against the
acceptor, and a prior indorser afterwards
took from the acceptor a warrant of at-
torney for the debt and costs, payable by
instalments. (The last of the instal-
ments being payable before the time
when in the ordinary course of proceed-
ings he could have obtained judgment
against the acceptor :) Held, in the ac-
tion against the indorser, that the taking
of the warrant of attorney from the ac-
ceptor, being a matter arising after the
commencement of the action, it was no
bar to the action generally, and therefore,
that it was not receivable in evidence
under the general issue.
Quære, whether the taking of the war-
rant of attorney from the acceptor was,
under the circumstances, a giving of time,
so as to discharge the other parties to the
bill. Lee v. Levy, T. 6 G. 4.
390
19. Where a declaration,against the marshal
for an escape, alleged that one S. S. was
arrested and gave bail, that afterwards
bail above was put in before a judge at
chambers," as appears by the record of
the recognizance," that S. S. surrendered
in discharge of the bail, and afterwards
escaped Held, that the plaintiff was
bound to prove that bail was put in as
alleged, and that the averment was not
made out by the production of the fila-
zer's book, the entry therein importing
that the recognizance was taken before a
single judge, an examined copy of the
entry of the recognizance of bail, stating
that the recognizance was taken before
the court at Westminster, having also been
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20. Declaration in assumpsit stated that the
defendant warranted a horse to be sound,
the proof was, that the defendant war-
ranted the horse to be sound, every where,
except a kick on the leg: Held, that this
was a qualified, and not a general war-
ranty, and that there was a variance be
tween the warranty proved, and that
stated in the declaration. Jones v. Cow-
ley, T. 6 G. 4.
21. In an action for a false return to a writ
of mandamus, it was alleged to be a cus
tom in a parish that, whenever a certain
perpetual curacy should be vacant by
reason of the death of the curate or other-
wise, the parishioners should elect a fit
person to succeed him, and that a va-
cancy having occurred, plaintiff was duly
elected by the said parishioners accord-
ing to the custom. At the trial it appeared
that at a meeting of the parishioners
duly convened for the purpose of such an
election, it was decided, before the elec
tion began, that parishioners who had not
paid church rates should not be allowed
to vote. In consequence of this resolu-
tion several persons who had the legal
right of voting did not tender their votes,
and the votes of others who did tender
their votes, were rejected on the ground
that they had not paid the church rate:
Held, that a party elected by a majority
of the persons whose votes were received
at this meeting, was not duly elected by
the parishioners according to the custom.
At the election every parishioner ten-
dering a vote gave a card, containing
only the name of the candidate for whom
he voted; Semble, that this mode of elec-
tion was illegal. Faulkner v. Elger, T. 6
G. 4.
22. Case for an injury done to plaintiff's
reversionary interest in land, by cutting
and carrying away branches of trees
growing there; second count in trover
for the wood carried away. It appeared
in evidence, that the land was let by the
plaintiff to the occupier, under a written
agreement: Held, that in order to sup-
port the first count, the plaintiff was
bound to produce it.
The plaintiff proved that the defendant
carried away some branches of the trees,
but gave no evidence of the value: Held,
that he was entitled to nominal damages
on the count in trover. Cotterill v. Hobby.
T. 6 G. 4.
23. In an action on a promissory note
against a party who had indorsed it for
the accommodation of the maker, it ap
peared that the plaintiff, the indorsee, had
signed an agreement to accept, from the
maker of the note, 5s. in the pound in
full of his demand, on having a collateral
security for that sum from a third per
It further appeared that the agent|
of the maker had represented to the
plaintiff, before he signed the agreement,
that the defendant would continue liable
for the residue of the debt secured by the
note, and that the agreement would be
void, unless all the creditors signed:
Held, first, that the execution of this
agreement had the effect of discharging
the surety; secondly, that the representa-
tions being as to the legal effect of the
agreement, were immaterial, and had not
the effect of avoiding it, and that as the
latter of them gave to the agreement a
meaning different from that which ap-
peared upon the face of it; parol evi-
dence of that representation was not ad-
missible, per Bayley, J. Lewis v. Jones,
T. 6 G. 4.
24. A. paid a nominal rent to the king of
one thousand acres of woodland, the
wood being all reserved to the crown.
During four months in the year, A. exer-
eised the privilege of shooting over the
land, and by his permission another per-
son took the grass: Held, that the pay-
ment of the rent, the exercise of the pri-
vilege of shooting, and the taking of the
grass was sufficient evidence to show
that A. was in the actual possession of
the land, so as to entitle him to maintain
trespass.
A public footway over crown land]
was extinguished by an inclosure act, but
for twenty years after the inclosure took
place the public continued to use the
way: Held, by Bayley, J., that this user
was not evidence of a dedication to the
public, as it did not appear to have been
with the knowledge of the crown. Harper
v. Charlesworth, T. 6 G. 4.
25. A public right of navigation in a river
or creek, may be extinguished either by
an act of Parliament or writ of ad quod
damnum and inquisition thereon, or
under certain circumstances, by com-
missioners of sewers, or by natural
causes, such as the recess of the sea, or
an accumulation of mud, &c., and where
a public road obstructing a channel (once)
navigable) has existed for so long a time
that the state of the channel at the time
when the road was made, cannot be
proved; in favor of the existing state of
things it must be presumed that the right
of navigation was extinguished in one
of the modes before mentioned, and the
road cannot be removed as a nuisance to
that navigation.
Every creek or river into which the
tide flows is not on that account neces-
sarily a public navigable channel, al-
though sufficiently large for that purpose,
per Bayley, J. The King v. Montague
and others, T. 6 G. 4.
62. Trespass for breaking and entering two
closes, parcel of Forton Farm. Plea,
that one J. W. before and at the time
when, &c. was seised in fee of fifty acres
of land, next adjoining the locos in quo,
and that by deed of the 17th of February,
1736, between F. C. who was seised in
fee of the locus in quo, and one R. W.
who was seised in fee of the fifty acres,
F. C. granted to R. W. and his heirs and
assigns, for the time being owners in fee
of the fifty acres, the liberty and privi-
lege of hunting for game with dogs in
the locus in quo. The plea then justifisd
the trespass as the servant of J. W. Re-
plication, that F. C. did not grant the
liberty and privilege as in that plea men
tioned, upon which issue was joined. At
the trial there was no proof of any such
grant as that stated in the plea, but it ap
peared that by a deed of that date R. W.
being then seised in fee of the manor of
Middleton, and all royalties, conveyed
Forton Farm to F. C., reserving all roy-
alties; but it appeared further, that from
the year 1753, the gamekeepers of the
lord of the manor of Middleton, were ac-
customed to sport over Forton Farm,
with the knowledge of the plaintiff and
his landlords, the owner of Forton Farm;
that about fourteen years ago, the plain-
tiff by desire of his landlord gave notice
to the then gamekeeper of the lord of the
manor not to trespass, but he afterwards
continued to sport there by order of the
lord, without any further interruption
Held, that upon this evidence a jury
ought not to have presumed a grant.
Another plea stated, that before the
said time when, &c., R. W. was seised
of the closes in which, &c., and by in-
denture of the 17th of February, 1786,
granted unto F. C., his heirs, &c., the
closes in which, &c., with a reservation
of all royalties. The plea then deduced
a title in said royalties from R. W. to J.
W., and then justified entering the closes
as his servant. Replication, that the de-
fendant did not enter in order to exercise
the said royalties, upon which issue was
joined. Held, that it lay upon the de-
fendant upon this issue to prove, first,
that he had such a royalty; and, secondly,
that at the time in question he was in the
due exercise of it; and, semble, that that
could only be done by proving a grant
of a free warren from the crown. Pick-
ering v. Noyes, T. 6 G. 4.
27. Case for slander. Declaration stated,
that plaintiff was treasurer and collector
of certain tolls, and that defendant spoke
of and concerning the plaintiff as such
treasurer and collector, certain words
"thereby meaning that the plaintiff as
such treasurer and collector had been
guilty of, &c." Held, that the plaintiff
was bound by the inuendo to prove that
he was treasurer and collector. Sellers v.
Till, M. 6 G. 4.
655
28. Where in case against a sheriff, for re-|
moving goods seised under a fi. fu. with-
out satisfying the landlord the rent due
to him, the declaration alleged that the
fi. fa. issued out of K. B. and the writ
produced in evidence appeared to have
issued out of C. P. Held, that this was
a fatal variance. Sheldon v. Whittaker
and another, M. 6 G. 4.
29. An action may be maintained by the
several partners of a firm, upon a gua-
ranty given to one of them, if there be
evidence that it was given for the benefit
of all. Garrett and Bodenham, surviving
partners of Phillips v. Handley, M. 6 G. 4.
Assumpsit for goods sold and delivered
Plea, that the goods were sold and deli-
vered to defendant by A., the factor and
agent of plaintiff, with the privity of
plaintiff, as and for the goods of A., and
that defendant did not know that the
goods were not the property of A.; that
at the time of the sale and delivery A.
was and still is indebted to defendant in
more than the value of the goods, and
that defendant is ready and willing to set
off and allow to the plaintiff the value
of the goods out of the monies so due
and owing from A. Held, on special de-
murrer, that the plea was good. Carr v
Hinchliff, T. 6 G. 4.
547
30. Indictment for perjury alleged to have
been committed in an affidavit sworn
before a commissioner of the court of
chancery, stated that a commission of
bankruptcy issued against the defendant,
under which he was duly declared a
bankrupt. It then stated that the defend- In
ant preferred his petition to the Lord
Chancellor, setting forth various matters,
and amongst others the issuing of the
commission, that the petitioner was de-
clared a bankrupt, and that his estate
was seized under the commission, and
that at the second meeting one A. B.
was appointed assignee, and an assign-
ment made to him, and that he possessed
himself of the estate and effects of the
petitioner. It then stated, that at the
several meetings before the commission
the petitioner declared openly and in the
presence and hearing of the said as-
signee to a certain effect. At the trial
the petition was produced, and it ap-
peared that the allegation was, that at the
several meetings before the commissioners
the petitioner declared to that effect:
Held, that this was no variance, inas-
much as it was sufficient to set out in the
indictment the petition in substance and
effect, and the word commission was one
of equivocal meaning, and used to de-
note either a trust or authority exer-
cised, or the persons by whom the trust
or authority was exercised; and that it
sufficiently appeared from the context of
the petition set forth in the indictment,
that it was used in the latter sense.
King v. Dudman, M. 6 G. 4.
EXECUTION.
See PLEADING, 4.
EXECUTORY CONTRACT.
See VENDOR AND VENDEE, 2.
FALSE IMPRISONMENT.
See TRESPASS, 4.
assumpsit against executors, declara-
tion stated that testator made his pro-
missory note, and thereby promised to
pay J. Y. on demand 200, and delivered
the note to him, whereby testator became
liable to pay, but did not pay, and at the
time of his death was indebted to J. Y.
for the amount of the sum secured by
the note, and interest. It then averred,
that afterwards, and after the death of J.
Y., the money specified in the note being
and remaining wholly due and unsatis-
fied, to wit, on, &c., at, &c., before A. B.,
one of the coroners for the county of N.,
it was found upon view of the body of J.
Y., then and there lying dead, by the
oaths of honest and lawful men of, &c.,
that the said J. Y. feloniously did kill and
murder himself, as by the inquisition be-
fore the coroner remaining of record
more fully appeared, by reason of which
said inquisition, and by force of the
felony, the said J. Y. forfeited to the king
the promissory note and the money due
thereon. The declaration then set forth
a grant under the king's sign manual to
the plaintiff of the note and money due
thereon, as mentioned in a certain other
inquisition, and that his majesty delivered
the note to the plaintiff, of which the
defendants, after the death of the testator,
had notice. Breach, nonpayment by tes
tator or the defendants since his death.
Plea, first, non-assumpsit testator. Se-
condly, that the note became due and
payable to J. Y. in his lifetime, and that
the causes of action did not accrue to
him within six years before the exhibit-
ing of the bill; upon which plea issue
was taken and joined. Thirdly, nul tiel
record of the inquisition taken before the
coroner; upon which issue was taken.
Fourthly, that there was no such grant
as alleged in the declaration. The issue
on the plea of the statute of limitations
having been found for the defendants,|
and all the other issues for the plaintiff,
it was held, on motion, to enter a non-
suit:
First, that it was not necessary for the
plaintiff to produce at the trial the inqui-
sition mentioned in the king's grant, inas-
much as that was an office of instruction
only, and not of entitling; the title of the
crown having accrued by the felony
under the coroner's inquisition.
Secondly, that the grant under the sign
manuel was sufficient to pass the pro-
perty in the note.
Held, thirdly, on motion in arrest of
judgment, that inasmuch as the declara-
tion alleged that the testator was, at the
time of his death, indebted to J. Y., the
payee of the note, in the principal and
interest due thereon, it sufficiently ap-|
peared that the note was a security for a
debt, and that the debt and security hav-
ing passed to the crown by operation of
law, were assignable by the crown with-
out indorsement.
Held, fourthly, assuming it to be neces-
sary, in order to vest the chattels of a
felo de se in the crown, that the coroner's
inquest should be found by twelve men,
that it must be taken after verdict that
the inquest was so found.
Held, fifthly, on motion by the plaintiff
for judgment non obstante veredicto, that
the plea of the statute of limitations, that
the causes of action did not accrue to J.
Y. within six years, was bad, inasmuch
as it did not show that J. Y. was barred A
by the statute at the time of his death;
and if he was not, then the king, not
being expressly mentioned in the statute,
was not within the statute, and his rights
were not barred.
Held, sixthly, that the averment, that
the note became due to J. Y. in his life-
time, being an acknowledgment that he,
at one time, had a good cause of action
(which had passed to the crown by for-
feiture, and from the crown to the plain-
tiff;) a cause of action was thereby con-
fessed by the plea, and the matter pleaded
in avoidance being insufficient, the plain-
tiff was entitled to judgment non obstante
veredicto. Lambert v. Taylor, and another,
executors, E. 6 G. 4.
FORFEITURE.
See COVENANT, 5. EJECTMENT.
By letters patent, reciting that the liberty
of H. was an ancient liberty, and that the
lords were bailiffs of the same, and had
exercised returns and executions of writs
and processes within the liberty, the king
granted to A. B., his heirs and assigns,
that he should have within the liberty of
H. the return and execution of all writs,
processes, and precepts of his majesty,
by the lord's proper bailiffs, officers, and
ministers, so that no sheriff of the king,
his heirs or successors, should enter into
the liberty to execute anything, unless it
touched his majesty or his crown, or in
default of the lord's bailiffs and officers.
The bailiffs of the liberty had regularly
attended the quarter sessions, and made
returns of the jurors resident within the
liberty: Held, that the bailiff of the lib-
erty was bound, in obedience to the pre-
cept of the sheriff, to summon the jury
within the liberty to attend the quarter
The court of quarter sessions made an
order that A. B., the acting bailiff of the
lordship of H., be fined 10. for refusing,
contrary to the duty of his office and to
ancient usage, to summon the jury from
the lordship to attend at the quarter ses-
sions, he, the said A. B., having been
duly required so to do by warrant from
the sheriff: Held, that this order was
good, although it did not appear that the
bailiff was summoned to attend at the
sessions, it being his duty to do so with-
out summons. The King v. Jaram, M. 6
G. 4.
FRAUDS, STATUTE OF.
tenant held under a demise from the 26th
of March, for one year then next ensuing
and fully to be complete and ended, and
so on from year to year, for so long as
the landlord and tenant should respec-
tively please. The tenant, after having
held more than one year, gave a paro'
notice to the landlord, less than six
months before the 25th of March, that he
would quit on that day, and the landlord
accepted and assented to the notice:
Held, on demurrer, in replevin, that the
tenancy was not thereby determined, there
not having been either a sufficient notice
to quit, or a surrender in writing, or by
operation of law, within the meaning of
the statute of frauds. Johnstone v. Hud-
lestone, clerk, and another, M. 6 G. 4. 922
In an action on a policy of insurance on
freight, it appeared that the ship in the
course of her voyage, having been in-
jured by a peril of the sea, was obliged
to put into a port and land the whole of
her cargo. Part of the cargo had been
so wetted by sea water that it could not
be re-shipped without danger of ignition,
unless it went through a process which
would have detained the vessel six weeks,
|