brings an action of assault he cannot new assign unless there have been two assaults at least committed upon him, for the new assignment is an acknowledgment by the plaintiff that the defendant has justified one assault. There is a distinction between a collateral and a continuous series of pleas. Suppose the case of trespass for breaking and entering the plaintiff's close, to which the defendant pleads a right of way, and the plaintiff replies extra viam, the defendant will be at liberty to use that replication as an admission of a right of way. So, if the plaintiff brought two separate actions for breaking and entering his dwelling-house, to one of which the defendant pleads an entry under a magistrate's warrant, as in the first plea; and to the other the same. plea as to this new assignment, if the jury found a verdict for the defendant upon his justification under the warrant, he might make use of that record, being between the same parties, in proof of the plea in the other action, and show by parol evidence that the premises were the same. Take the case of an action on a bill of exchange, the consideration for which was goods sold: if the defendant plead payment to the count for goods sold, and the plaintiff admits that plea and enters a nolle prosequi, the defendant would be at liberty to show that the consideration of the bill was the goods sold, for which the plaintiff has admitted he has been paid.

Crowder and Ball in support of the rule. It is a fallacy to suppose that a new assignment admits the facts alleged in the plea. It only amounts to this: the plaintiff, in general language, says, You have committed a trespass by coming into my house and staying a long time there. Defendant says, I suppose you mean when I entered under a warrant to search for goods which had been fraudulently removed by my tenant. The plaintiff then says, It is not on that account I bring my action, but because you entered at another and a different time. In the case first put there is a distinct admission of a right of way, and the cause of complaint is, the going out of that way; but here there is not the least connexion in one of these pleas with the other. There is no doubt that if the plaintiff brought two separate actions for different trespasses, and to one of these actions the defendant justified under a warrant, and that plea is found for him, the actions being between the same parties, the facts found in the one might be used in evidence in the other action. But here the plaintiff waives all inquiry as to whether the plea to the declaration is a good justification, and goes on to state the real ground of his action. In the other case of an action upon a bill and for goods sold, there would not be a conclusive admission of payment for the goods, unless that fact were found by a jury. Here there is no admission which amounts to a nolle prosequi, for the plaintiff says, I have not brought my action, and never did intend to bring it, for that which you suppose, but for a totally different cause.

Lord ABINGER, C. B.-This case has been very ingeniously argued; and a doubt was raised in my mind upon a point on which I entertained no doubt in the beginning. If, where the plaintiff declares with two separate counts, in one of which he distinctly admits certain facts, and a question is raised upon the other involving similar facts, it may be a matter of consideration whether the facts admitted by the first count might not be used in evidence of the same facts in the second. If the question had been put to me origi

Exchequer.

NORMAN

v.

WESTCOMBE.

NORMAN

V.

WESTCOMBE.

Exchequer. nally I should have said, at first, it was doubtful whether they could be. But I am not prepared to say that a verdict or a distinct admission of a particular fact may not be evidence upon another record between the same parties. There seems to me, however, a difference in the present case. A new assignment does not amount to an admission of a fact; it is simply a statement by the plaintiff that he does not mean to investigate at all that subject-matter to which the defendant's plea applies. Suppose an action of assault, and the defendant justifies on the ground that the plaintiff was trespassing on his land; suppose also that before the plaintiff came upon the land the defendant had thrashed him; here the plaintiff would say, I will not go upon that plea, and try whether it is your land or not, I commenced by action for another assault upon the same day; and if the defendant plead to this, that the plaintiff was then going to the defendant's land, and he was endeavouring to prevent him, could the defendant make use before the jury of the admissions of the former plea? In point of fact, there is no admission on the record, but a mere declaration that the plaintiff does not proceed for that trespass which the defendant has justified. Suppose further, a plaintiff has embraced in his count several matters, to one of which the defendant has pleaded a justification which the plaintiff cannot deny, and he obtains an order to strike that part out of the count, and goes to trial upon the other matters, the state of the pleadings will have no reference to the part struck out. Here the pleadings previous to the new assignment are in point of fact struck out: the plaintiff says, You are mistaken, that is not what I mean to go for; but I go for this; and defendant has no right to make use of them.

PARKE, B.-When this motion was made there was no doubt in my mind; but a doubt has been since raised by the ingenious argument of Mr. Erle. I was led into the doubt by taking for granted the position he commenced with, viz., that a new assignment admits the truth of the matter pleaded in justification. But if the nature of a new assignment be examined, it is sufficiently clear that its only operation is to admit there is another trespass than that complained of, any inquiry as to which the plaintiff relinquishes. It amounts to this: I will not upon this occasion make any inquiry into the truth of the plea; that is not the cause for which I brought my action. It is clear, then, you cannot take this as an admission to prove a subsequent state of the pleadings.

BOLLAND and GURNEY, Barons, concurred.

Rule absolute for a new trial.

GRANGER v. Moore.

Where a writ of THE defendant in this case was in Horsemonger-Lane Gaol, in the

captas is lodged

with the sheriff

custody of the sheriff on a criminal charge, which custody would expire

on the following day.

sity for an order of the Court upon the sheriff to detain the defendant.

Humfrey moved for an order commanding the sheriff to detain the defendant on a writ of capias, at the suit of the plaintiff.

Lord ABINGER, C. B.-There is no necessity for an order of the Court. If a writ of capias be lodged with the sheriff, and he afterwards allows the defendant to go beyond the prison walls, he may have an action against him for not doing his duty. It is a different case where you seek to charge the defendant with a proceeding when the cause is pending.

Humfrey stated that it was the general practice to apply for orders of this description, and they were frequently made at Chambers, but he understood that in term time it was necessary to make an application to the Court.

Lord ABINGER, C. B.—I am informed by the officer there is no such rule in this Court. I have sent to ascertain the practice in the Court of King's Bench; and they report that the rule applies to persons in the custody of the marshal; but that is a different case from this; here the defendant is in the custody of the sheriff himself, and I cannot conceive upon what principle the sheriff should have an order of the Court.

The other judges concurred.

FIELD V. HEMMING.

،،

a joint and

Exchequer.

GRANGER

MOORE.

In a notice to admit the handwrit sory note which the notice, the

ing to a promis

was annexed to

note was de

scribed as bear

of October

vember. de.

ASSUMPSIT by payer against maker of a joint and several promissory note, dated the 10th day of November. The defendant pleaded that he did not make the note. Previously to the trial the plaintiff had obtained a judge's order to admit the handwriting to the note, pursuant to R. H. T., 4 W. 4., 20, but in the notice he had described the note as several promissory note made by the defendant and one T. Bonaston, for in dober instead 2007., payable to the plaintiff on the 10th day of October. The defendant's of the 10th of No. attorney at first refused to admit the handwriting, but afterwards consented to an order for that purpose. At the trial before Lord Abinger, C. B., at the last sittings in Middlesex, the plaintiff produced the note, and the judge's order, but gave no evidence of the defendant's handwriting. It was then notice; at the objected by the defendant's counsel that an admission of a note described was produced but to be made on the 10th of October, was no evidence of the note set out in the declaration. A verdict was found for the plaintiff for the amount of the note, with liberty to move to enter a nonsuit.

Humfrey now moved accordingly, and contended that there was no evidence to support the plaintiff's claim. The defendant had only admitted the handwriting to a note made on the 10th of October. The judge had no power to make an order for the admission of any document except that which was specified in the notice.

Lord ABINGER, C. B.-It appeared that the promissory note was annexed to the notice; the defendant must therefore have known the particular note, the handwriting to which he was called upon to admit; consequently there is

fendant consentthe admission of

ed to an order for

the handwriting

of

the note de

scribed in that

trial no evidence

this order. A been found for

verdict having

the plaintiff, the Court refused a rule to set aside the verdict.

Exchequer.

FIELD

v.

IIEMMING.

no ground for saying he was misled. The question seems to be, whether or no the plaintiff is at liberty to show a mistake. Suppose a person upon receiving ten pounds gives a receipt for twenty, may he not shew that he has received but ten? The intention of the defendant was to admit the handwriting to a promissory note, the original of which was annexed to the notice.

Rule refused.

Plaintiff assigned the good-will of his business as a carrier to defendants, and cove

nanted with them not to carry on trade on his own account during life, and also to serve defendants

for life, and defendants coveDanted with plaintiff to pay him a certain weekly sum:Held, that the contract not to trade during life was legal.

When a deed contains several independent covenants,

some of which are illegal and void, the others may nevertheless be enforced.

WALLIS v. DAY and another.

COVENANT.-The declaration stated that by a certain indenture made between the plaintiff of the one part, and defendants of the other part, (profert) for considerations therein mentioned, the defendants did for themselves, their heirs and executors, jointly and severally covenant, promise, and agree to and with the plaintiff, his executors, administrators, and assigns, that they the defendants, or one of them, their, or one of their heirs, executors, or administrators, should and would well and truly pay, or cause to be paid, unto the plaintiff, his executors, administrators, and assigns, for the terms of fifteen years, to commence from the day of the date of the said indenture if the plaintiff should so long live, the weekly sum of 21. 3s. 10d. of lawful money of Great Britain, free from all taxes and other deductions whatsoever: the first weekly payment thereof to begin and be made on the 10th day of July next ensuing the date of the said indenture: averment that plaintiff had well and truly performed, fulfilled, and kept all things in the said indenture contained on his part and behalf to be performed, fulfilled, and kept; and although fifteen years from the day of the date of the said indenture have not yet elapsed, yet the said plaintiff saith that the said defendants have not, nor hath either of them paid or caused to be paid to the said plaintiff the said weekly sum of 21. 3s. 10d., but have neglected and refused so to do; and there is now due and owing to the said plaintiff a large sum of money, to wit, the sum of 391. 9s. of the weekly payments aforesaid, for eighteen weeks before the commencement of this suit, elapsed, and up to, and ending on the 22nd day of October, in the year of our Lord 1836. The defendants craved oyer of the indenture, which was as follows: This indenture, made the 8th day of July, in the year of our Lord 1830, between William Day, of Walsoken, in the county of Norfolk, wagoner, on the one part, and Edmund Clemenson, of Saint Ives, in the county of Huntingdon, wagoner, and James Wallis, of Saint Ives aforesaid, wagoner, of the other part: whereas the said James Wallis hath for many years past carried on the trade or business of a carrier from London to Saint Ives, and from thence to Wisbech; and whereas the said James Wallis hath agreed with the said William Day and Edmund Clemenson for the sale, disposition, or relinquishment to them of the said trade or business of the said James Wallis upon the terms and conditions hereinafter expressed; now, therefore, this indenture witnesseth, that in pursuance of the said agreement, and in consideration of the covenants, stipulations, and agreements hereinafter contained, on the parts and behalves of the said William Day and Edmund Clemenson, and in consideration of the sum of 10s., of lawful money of England, to the

any

Exchequer.

WALLIS

v.

said James Wallis, in and at, or immediately before the execution of these presents, well and truly paid by the said William Day and Edmund Clemenson, (the receipt whereof is hereby acknowledged,) he the said James Wallis hath granted, bargained, sold, assigned, relinquished, and quit- DAY & another. claimed, and by these presents doth grant, bargain, sell, assign, relinquish and quit-claim unto them, the said William Day and Edmund Clemenson, their executors and administrators, all and singular the good-will, interest, and advantage of the connexions and customers whatsoever, which the said James Wallis now hath in or concerning the said trade or business of a carrier from London to Saint Ives, and from thence to Wisbech, as the same hath been and now is carried on, exercised, or enjoyed by him the said James Wallis; and all the estate and interest of the said James Wallis therein; to have, hold, and enjoy the said good-will, trade, or business, and other the premises herein before assigned, or otherwise assured, or intended so to be, unto and by them the said William Day and Edmund Clemenson, their executors, administrators, and assigns, to and for their own proper use, benefit, and advantage. And the said James Wallis, for the considerations herein before expressed, and in consideration of the covenants hereinafter contained on the parts and behalves of the said William Day and Edmund Clemenson respectively, doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said William Day and Edmund Clemenson, their executors, administrators, and assigns, by these presents in manner following; that is to say, that he the said James Wallis shall not, nor will at any time from henceforth, during the term of his natural life, either by or for himself, or for or with other person or persons whomsoever in trust for him, or to or for his use, benefit, or advantage, set up, exercise or in any sort or manner howsoever use or follow the trade or business of a carrier, except as hereinafter is excepted. And further, that he the said James Wallis shall and will from time to time, and at all times hereafter, during the term of his natural life, to the utmost of his power, promote and encourage the customers and connexions in trade of him the said James Wallis being or becoming the customers of the said William Day and Edmund Clemenson in the said trade or business; and that it shall be lawful for the said William Day and Edmund Clemenson from time to time, and at all times hereafter, to wait upon all or any of the present customers or customer of him the said James Wallis, in the name of the said James Wallis, as often as they or either of them shall think fit, or find occasion so to do. And moreover, that the said James Wallis shall and will from henceforth, during the term of his natural life, well, truly and faithfully serve the said William Day and Edmund Clemenson as an assistant in the said trade or business of a carrier, and diligently attend to the business and concerns thereof during the usual hours of business; and shall not nor will do any wilful damage or injury to the said William Day and Edmund Clemenson, nor knowingly suffer the same to be done without acquainting them the said William Day and Edmund Clemenson therewith. And this indenture further witnesseth, that for the considerations herein before expressed, and of the covenants hereinbefore contained, and in consideration of the good and faithful service of the said James Wallis as aforesaid, they the said William Day and Edmund Clemenson do hereby for themselves, their heirs and executors, jointly and severally covenant, promise, and agree to