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versus

SOMERSET.

pill, nor could receive benefit by the erection thereof,

1805. and that the presentment was founded upon such

The King opinion and the jurors' own knowledge." The commissioners submitted to the direction of the Coxx18..

SIONERS of the court, and stated, that the jury being summoned Sewers for from the body of the county, the under-sheriff re. S turned 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 were 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 thenıselves 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. i .

the COMMIS- :

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1805. TRIPP appeared for the commissioners, and admitted

that the proceedings were entirely by mistake, and said The King versus that they ought to have proceeded, as it is said

in Callis on Sewers, 105, 106, 108, upon view, SIONERS of Sewers for by survey themselves, and by surveyors properly apSOMERSET.

pointed, 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 inight 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. 168!, p. 110; Moor, 845, pl. 113; and Viner, Sewers, 418, pl. 1.

The SOLICITOR GENERAL, BURROUGH, and Nev, BOLT, contrù, 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, he unobjectionable, but not for making presentinents, being themselves interested in the matter. Here the juries were

versus

SIONERS of

not summoned by the sheriff, but only the foreman of 1805. the jury; and in the case in Styles, there was no doubt

The King , 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 Sewers for 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. *

SOMERSET.

versus

Lane against Smith.-16th Nov. Where there is a count on each of sereral notes of a banker, pay. Practice." able to bearer, the court will not strike them out as super. Pleading. Se

parate counts Auous, and put the plaintiff to the inconvenience of proving on several the consideration, on the count for money had and received. : notes. The plaintiff declared in assumpsit upon several LANG notes of a banker payable to bearer for ll. each

Suita. There was a count for each pote, inaking 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 tor money þad and received,

The Solicitor GENERAL, for the plaintif, 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 pot to be for money had and received ;

* It was at one time suggested by Lord ELLEN BOROUGN, 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. • NO. xxvļi, N. s.

1805.

LANE Versus SMITA.

Ploading. Debt on Assumpsit.

NINAN verSUS BLAND.

and that there would be a covenience in declaring upon the notes; as, upon judgment by default, the plaintif might take out execution without a writ of inquiry.

Lord EuĻENBOROUGH, C. J. “ I should have drawn this declaration in the saine form ; the plaintif ought not to be put to any unnecessary difficulty in þis proof."

Rule DISCHARGED, Nixon against BLAND.-Nov. 26. A declaration in debt on a quantum meruit, stating that the defendant agreed to pay so much, fc. is good, being similar to a concessit solvere ; Aliter, if, undertouk and faithfully promised, which sounds in assumpsit. THE plaintiff declared in debt for use and occupa* 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 plaintif had joined a count in assumpsit with counts in debt.

The case being put in the common paper,

Smith, for the defendant, applied to bave it placed in the special paper for argument, relying upon the authority of Dalton y. Smith, * and contended, that the words' agreeil 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.t

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'* 2 Smith's Rep. 618. + See Wentworth's Pleadings, Vol. 5, p. 143, et seq. Drawn by Mr. Lawes and pro Burrow.

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1805.

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.

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Et parte JOHN King, a Prisoner.- Nov. 28. A bunkrupt was a prisoner in the Fleet, for a greater sum than 1,5001, on the 1st of Janúary, 1801; part of it was for a Insolvent aco

“ 44 Geo. 3. c. debt due to a creditor who was allowed, by the Lord Chan. 108. Execucellor, fill the first dividend, eléct whether he would pro- tion. Bank.

rapt. Judge's ceed át laa, 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 1,5001. Held, that the prisoner was legally in custody on the 1st of January, 1804, for more than 1,5001. and nut 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 Ex parte to the lord mayor, recorder, and aldermen of the

King. city of London, being the magistrates of the court of quarter sessions for Londori, 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 sumi or sumns of money greater than 1,5001. on the 1st of January, 1804, and if it should appeat that he was not, then to hear and deterinine whether he is entitled to be discharged under the Insolvent Act, 44 Geó. 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

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