pill, nor could receive benefit by the erection thereof, and that the presentment was founded upon such opinion and the jurors' own knowledge." The commissioners submitted to the direction of the court, and stated, that the jury being summoned from the body of the county, the under-sheriff returned a list of the jurors; but it appearing to them, that it was expected that the said jurors would be required to view all the lands in the Level of Huntspill, and to assess such as wère liable to the expence of repairing the sea-wall, and they having been advised that no precedent had occurred where such jury had been impannelled and sworn for such purpose, and that they had no power to compel them to act as jurors for that purpose, they dismissed the jurors accordingly. They further said, that the interference of Symes and others, as solicitors, in preparing the presentments, and the advertisement, and the meetings and agreements, were unknown to them, and that since the mandamus they were desirous of obeying it. To these proceedings the following objections were taken, viz. that the jurors were holders of messuages, lands, &c. within, and inhabitants of the parishes and places for which they served, and were therefore interested. 2dly, That the juries were the ordinary standing and viewing juries; whereas, a jury ought to have been by order of the commissioners summoned by the sheriff of the county, for the special purpose of presenting persons liable to contribute to the burthen in question. 3dly, Some of the presentments state, that no person holds any lands, &c. within the view of the jurors, in the parish of, &c. which would have hurt, or receive benefit, &c. 4thly, That the jurors, in some of the presentments, describe themselves to be jurors for one parish or place, and yet they present for other places also. The two first objections affected all the presentments; the two latter applied only to a certain number of them. 1805. The KING versus the CoмMI SIONERS OF SEWERS for SOMERSET. 1805. The KING VETSUS the COMMIS SIONERS Of SEWERS for SOMERSET. TRIPP appeared for the commissioners, and admitted that the proceedings were entirely by mistake, and said that they ought to have proceeded, as it is said in Callis on Sewers, 105, 106, 108, upon view; by survey themselves, and by surveyors properly appointed, and by presentment of the juries from the body of the county upon the neglect of the surveyors. There was some expectation that the matter might be compromised by submitting the whole to the arbitration of Mr. Tripp. But this not being effected, PELL, PEAKE, and A. MOORE, shewed cause, relying upon the Pawlett and Puriton presentments. The practice appeared to be, to make presentments for certain limits well known to the standing juries. The practice of courts of sewers is acknowledged and adopted by the statute 23 Henry VIII. c. 5, and such presentments are not conclusive, but may be traversed. From their local knowledge these standing juries are very well fitted for such inquiry. In Styles, 185, 191, 192, the want of Hundredors, upon the jury, was objected to as shewing that they had not sufficient authority. The objections to the presenting juries are now waved by the lapse of time, for objection ought to have been taken to them before the traverses were had; but by traversing their presentments, the parties admitted them to be good in form. They cited Callis, ed. 1681, p. 110; Moor, 85, pl. 113; and Viner, Sewers, 418, pl. 1. The SOLICITOR GENERAL, BURROUGH, and NEW BOLT, contrà, were stopped by the court. The COURT censured the conduct of the jurors, as being very unlike judicial proceedings, but was desirous of deciding only upon the legal and formal objections, The standing juries might, for many purposes of assist. ing in the view of the commissioners, be unobjectionable, but not for making presentments, being themselves interested in the matter. Here the juries were 1805. The KING versus SIONERS Of SEWERS FOR SOMERSET. not summoned by the sheriff, but only the foreman of the jury; and in the case in Styles, there was no doubt but the jury was to be summoned by the sheriff. This was a defect of jurisdiction which could not be waved the COMMIS or cured by consent. When a jury of the county was summoned and had appeared, they should not have been dismissed, but upon being sworn, should have tried the traverses or presentments upon evidence, and not by the inforination of Mills, the engineer, in the country, who was not upon his oath. RULE ABSOLUTE for quashing the proceedings.* LANE against SMITH.-16th Nov. Pleading. Separate counts Where there is a count on each of several notes of a banker, pay- Practice. able to bearer, the court will not strike them out as superAuous, and put the plaintiff to the inconvenience of proving on several the consideration, on the count for money had and received. THE plaintiff declared in assumpsit upon several notes of a banker payable to bearer for 11. each. There was a count for each note, making in the whole 235 counts, with a count for money had and received. SCARLETT, for the defendant, obtained a rule to shew cause why it should not be referred to the master to strike out the superfluous counts; on the ground, that the notes would be evidence on the count for money had and received, The SOLICITOR GENERAL, for the plaintiff, shewed cause. He contended that the plaintiff ought not to be put to the difficulty of proving the consideration of the notes, at the trial; for he might he turned round if it should appear not to be for money had and received; It was at one time suggested by Lord ELLEN BOROUGH, C. J. that it would be advisable to try the question upon some, general traverse: it was stated by BURROUGH that it was found impossible. notes. LANG versus SMITH. 1805. LANE versus SMITH. Pleading. NINAN versus BLAND. and that there would be a covenience in declaring upon the notes; as, upon judgment by default, the plaintiff might take out execution without a writ of inquiry. Lord ELLENBOROUGH, C. J. "I should have drawn this declaration in the saine form; the plaintiff ought not to be put to any unnecessary difficulty in his proof." RULE DISCHARGED, NINAN against BLAND.-Nov. 26. A declaration in debt on a quantum meruit, stating that the tion, &c. with a count upon a quantum meruit, stating that, in consideration that the said plaintiff had, at the request of the defendant, before that time done and performed certain work, &c. for the defendant, to be paid for, &c. the said defendant then and there agreed to pay for the same, so much, &c. whereby an action hath accrued, &c. To this the defendant demurred specially, alleging for cause, that the plaintiff had joined a count in assumpsit with counts in debt. The case being put in the common paper, SMITH, for the defendant, applied to have it placed in the special paper for argument, relying upon the authority of Dalton v. Smith, and contended, that the words' agreed to pay' in this count, were equivalent to the words promised and undertook to pay in that case, and therefore sounded in assumpsit and not in debt. He stated also, that the best modern precedents contained no words of agreement or promise.+ *2 Smith's Rep. 618. Vol. 5, p. 145, et seq. Burrow. + See Wentworth's Pleadings, Drawn by Mr. Lawes and Mr. But by the COURT. "It has been the practice to declare in debt upon a concessit solvere for two hundred years at least, and this is no more. Unless there is a case in which a similar declaration has been held bad in this precise form, there must be JUDGMENT for the defendant. 1805. NIRAN * versus BLAND. Insolvent act 44 Geo. 3. c. 108. Execu tion. Bank. rupt. Judge's Ex parte JoHN KING, a Prisoner.-Nov. 28. A bankrupt was a prisoner in the Fleet, for a greater sum than 1,500l. on the 1st of January, 1804; part of it was for a debt due to a creditor who was allowed, by the Lord Chan cellor, till the first dividend, to elect whether he would proceed at law, or under the commission, and before the 1st of order., January, 1804, that creditor signed his commission, and afterwards, in January, 1805, by consent, a judge's order was obtained to discharge him out of custody pro tanto, by which the debts wherewith he was charged were reduced to less than 1,500l. Held, that the prisoner was legally in custody on the 1st of January, 1804, for more than 1,5001. and not entitled to the benefit of the Insolvent Act 44 Geo. III. c. 108. Semble, a judge will not discharge a defendant out of execu tion, alone upon the plaintiff having signed his certificate, without the consent of parties. THIS was an application for a mandamus, directed to the lord mayor, recorder, and aldermen of the city of London, being the magistrates of the court of quarter sessions for London, to make an order that John King should be brought before them; and for them to inquire whether he was in prison for the nonpayment of any sum or sums of money greater than 1,5001. on the 1st of January, 1804, and if it should appear that he was not, then to hear and determine whether he is entitled to be discharged under the In solvent Act, 44 Geo. III. c. 108. The statute re quires gaolers, &c. 'o make out lists of persons in their custody upon the 1st of January, 1804, charged in execution, &c. and by section 4, Every person Ex parte |