« ForrigeFortsett »
complaint, and adjudged the same to fore that it was not necessary to shew be true. It then alleged the issuing the acceptance of the demise by an of a warrant to cause possession of instrument under a common seal. the premises to be delivered to the Thirdly, that it was no objection churchwarden and overseers, pursuant that the names of the then churchto stat. 59 Geo. 3, c. 12, which was wardens and overseers were not mendelivered to the defendant A. to be tioned, as the grant would be good executed; by virtue of which, in or- by the name of office to the then inder to deliver peaceable and quiet dividual officers. possession thereof to the said church- Fourthly, that the express colour warden, &c., he the defendant A., given by the plea, by the averment and the other defendant as his ser- of the charter of demise, was suffivant and by his command, afterwards cient; for that
gave a colour of and within a reasonable time after the title, though it was a bad one. Smith adjudication, and after the delivery v. Adkins,
362 of the said warrant, to wit, at the time
OYER. in the introductory part of the plea
See LEASE. mentioned, the same being in the day. time, broke into and entered the said dwelling-house; and because the plain
PARTNERSHIP. tiff and his family were then occupy
See MINING COMPANY. ing the same, the plaintiff claiming some title thereto under colour of a
PATENT. certain charter of demise, pretended The construction of the specification to be thereof made to him by the said of a patent belongs to the Court, and M. S. for the term of his natural life, not to the jury. after her said refusal and neglect, If a specification contain an untrue whereas nothing passed thereby, and statement in a material circumstance, although the plaintiff and his family of such a nature, that, if literally acted were then requested so to do, refused upon by a competent workman, it to depart and go out of the said tene- would mislead him, and cause the exment, the defendants then gently eject- periment to fail, the specification is ed, expelled, put out and removed therefore bad, and the patent invalithe plaintiff and his family from the dated, although the jury, on the trial said tenement, for the purpose of de- of an action for the infringement of livering the quiet and peaceable pos- the patent, find that a competent session thereof to the said churchwar- workman, acquainted with the subject, den and overseers, &c.:- and so jus- would not be misled by the error, but tified the trespasses complained of. would correct it in practice. Held, on special demurrer, first, that In the specification of a patent, the the seisin in fee of the Marquis of H., title of which was “ An invention at the time of the demise to the for the improved application of air to churchwarden and overseers, was suf- produce heat in fires, forges, and furficiently averred.
naces, where bellows or other blowing Secondly, that the churchwardens apparatus are required,” the mode of and overseers are not, by 59 Geo. 3, operation was described as follows:c. 12, s. 17, made a complete body “A blast or current of air must be corporate, but are only empowered produced by bellows or other blowing
to accept, take, and hold in the na- apparatus, and is to be passed from ture of a body corporate,” and there- the bellows, &c., into an air-vessel or receptacle, made sufficiently strong to ject to the generality of the notice at endure the blast, and from that vessel the trial: the only question then is, or receptacle, by means of a tube, whether the notice is sufficiently large pipe, or aperture, into the fire, &c. to include the objections relied on by The vessel or receptacle must be air- the defendant. Neilson v. Harford, 806 tight or nearly so, except the apertures for the admission and emission
PENSION. of air, and at the commencement
Assignability of and during the continuance of the
A compensation granted to a public blast must be kept artificially heat-civil officer on the reduction of offices ed to a considerable temperature.” in his department, under the 4 & 5 After giving directions as to the ma
Will. 4, c. 24, is not assignable by terials and dimensions of the vessel, him. Wells v. Foster,
149 the specification proceeded to state, “The form or shape of the vessel or
PLEADING. receptacle is immaterial to the effect, See APPORTIONMENT OF RENT. and may be adapted to the local cir
ARBITRATION, II., 1. cumstances or situation.” In other
BOND. parts of the specification, the same
BOROUGH. language was used with reference to
CARRIER, (2), (3). the ultimate beneficial effect upon the Costs, III, IV. furnace, &c. :—Held, that such was DEBTOR AND CREDITOR. the reasonable construction of the LANDLORD AND TENANT, (1). above clause also, and not that the LEASE. form or shape of the vessel was im
MAINTENANCE. material to the effect of heating the OVERSEERS. air within it.
STATUTE. Held, also, that the title of the
TRESPASS, (1). patent was not inconsistent with the
I. Declaration. specification, but that the invention of applying to fires, &c., air heated in Averment of Breach. the manner therein stated, might be A declaration in assumpsit stated, described as an improved application that one W. A. S. was in the custody of air."
of the warden of the Fleet in execuHeld, also, that in this specification tion at the suit of the plaintiff, upon the plaintiff did not claim a patent for a judgment in this Court, and that in a mere principle, but for a mode of consideration that the plaintiff would applying a well-known principle, viz. cause him to be discharged, and would the heating of air, by means of a me- take his warrant of attorney for the debt chanical apparatus applied to fires and and costs, the defendant undertook furnaces.
that W. A. S. should be forthcoming If the notice of objections, delivered to satisfy the amount of the judgment by a defendant with his pleas in an to be entered up on the warrant of action for the infringement of a patent, attorney, on the 18th July, 1840, at pursuant to the stat. 5 & 6 Will
. 4, the office of Mr. A., and also, that c. 83, s. 5, be not sufficiently specific, one day's previous notice of meeting the plaintiff's course is to apply to a W. A. S. should be given to Mr. A.: Judge at chambers for an order for –Averment, that the plaintiff, conthe delivery of a more specific notice; fiding, &c., did discharge W. A. S. but if he omit to do so, he cannot ob- out of custody, and took a warrant of
attorney for the debt and costs: set aside the plea, on the ground of Breach, that W. A. S. was not forth- its being false and tricky, and calcucoming to satisfy the amount of the lated to embarrass the plaintiff. Mitjudgment so to be entered up as a- ford v. Finden,
511 foresaid, at the day and place agreed
(4). When amounting to General on, nor was one day's notice, &c.,
Issue. given to Mr. A.:-Held sufficient, on motion in arrest of judgment, with that, in consideration that the plain
Assumpsit. The declaration stated, out an averment that judgment was
tiff would buy of the defendant a mare actually entered up on the warrant of
at a certain price, the defendant proattorney. Page v. Jarvis, 136
mised that she was sound, and averred II. Pleas in Bar.
as a breach that she was not sound. (1). Plea" by Statute." The defendant pleaded that the mare Where, in an action of trespass for
was sent to a repository for the sale hunting over the plaintiff's land, the of horses, to be sold according to cerdefendant pleaded not guilty by sta
tain rules, which were that “a wartute, the Court, on an affidavit of the ranty of soundness should remain in plaintiff that he could not discover force until noon of the day after the the statute under which the defendant sale, when it would be complete, and meant to justify, made absolute a rule the responsibility of the seller termi. upon the defendant, to point out with nate, unless in the mean time a notice in three days the statute under which and certificate of unsoundness were the plea was pleaded, or else that the given:” that the sale took place subwords “ by statute” should be struck ject to the rules, and that the same out of the margin. Coy v. Lord Fo
were agreed to by the parties, and
that such notice and certificate were rester.
not given within the time limited:(2). Signature.
Held, that the plea was good, and Where a defendant pleaded nun- that it did not amount to the general quam indebitatus to the whole decla- issue. Smart v. Hyde,
723 ration, and a special plea concluding (5). When a good answer as to Part. with a verification, and to which therefore counsel's signature was requisite,
To an action of debt for goods sold, but delivered them without counsel's &c., the defendant pleaded, except as signature: -Held, that the plaintiff and as to that sum, that the plaintiff
to 51. 108. 3d., nunquam indebitatus; might treat the whole pleading as a nullity, and sign judgment as for want ought not further to maintain his acof a plea. Shield v. Quick, 289
tion, because he says, that after the
causes of action in the declaration (3). Sham Plea.
mentioned accrued to the plaintiff, To an action by the payee against and after the commencement of the the makers of a promissory note, the suit, he the defendant paid to the defendants pleaded, that there was plaintiff, who then accepted and reno consideration for the note, and ceived the same, a large sum of money, that it was made subject to the con to wit, 51. 138. 7d., in full satisfacdition that the defendants should not tion and discharge of all the causes be called upon to pay the same if of action in the declaration mentioned, they were not able, but that it should which relate to the said sum of be renewed. There was an affidavit 51. 108. 3d. To this there was a that the plea was false. The Court special demurrer, assigning for cause,
that it was not alleged that the pay- | ment of the bill according to the tenor ment was made in satisfaction and and effect of the acceptance, and discharge of the damages and costs therefore that the replication was imsustained by reason of the causes of proper. Schild v. Kilpin, 673 action, or the detention of the debt: -Held, on special demurrer, that the (2). Traverse of immaterial Averplea being pleaded to a portion of the
ment. debt only, and not to the damages Plea, to an action of covenant for and costs appertaining thereto, was rent due for turnpike toll, that before nevertheless a good answer to so much it became due, the trustees, on &c., as it was pleaded to, although it was entered into and upon a certain part larger than necessary in the conclud- of the tolls, and then ejected, exing part, that not being pointed out pelled, put out, and removed the deas a ground of demurrer.
fendant from the possession thereof, Held also, that the plaintiff might and kept and continued him so ejectsign judgment for any damage which ed, &c., from thence hitherto. Rewas not answered by the plea. Henry plication, that the trustees did not v. Earl,
228 enter into or upon the said part of (6). Non assumpsit, Evidence under. fendant from the possession thereof
the said tolls, or eject, &c., the deUnder a plea of non assumpsit to a modo et forma. count on an account stated, the de
Held, on error in the Exchequer fendant may shew that accounts be- Chamber (reversing the judgment of tween the plaintiff and himself, the the Court of Exchequer), that this correctness of which he has admitted, replication was good on special dewere in fact incorrect. Thomas v.
murrer, although it put in issue not Hawkes,
only the expulsion but also the entry, III. Replication.
the latter being immaterial and im
possible, and that the defendant hav. (1). De injurid.
ing mixed up the entry and expulsion To an action by indorsee against as constituting the eviction, the plainacceptor of a bill of exchange, the tiff had a right to follow him, and to defendant pleaded, that after the in- accept the issue as tendered. Paldorsement to the plaintiff, and before mer v. Gooden,
890 the commencement of the suit, to wit, on &c., the plaintiff, for a good
IV. Profert. and valuable consideration, indorsed
Where the defendant, a surety, by the bill to J. W., who, from thence deed poll guaranteed to the plaintiff until and at and after the commence the payment of a sum of money: ment of this suit, was, and still is Held, in an action on the guarantee, and remains, the indorsee and holder that the defendant might plead an inthereof, and the defendant, from the denture of release from the plaintiff time of such indorsement to the said to his principal without making proJ. W. continually hitherto hath been, fert of the indenture. Bain v. Cooper, and still is liable to pay the amount
751 of the bill to the said J. W. Replication, de injuriâ:-Held, on special
V. Variance. demurrer, that the plea was in denial, 1. Declaration in assumpsit stated, not in excuse, of the breach alleged that the plaintiff bargained to buy of in the declaration, viz. the non-pay- the defendant, and the defendant agreed to sell to him, a dwelling- The plea set out the certificate of house and the fixtures therein, for the the arbitrators, in these terms:-“In residue of a term of years then and pursuance of the within order, we still unexpired therein, to commence make and publish our certificate, that from a certain day, to wit, the 1st of there is now due from T. C. to the January, 1840, for the sum of £60: plaintiff, W. K., the sum of £120, and that thereupon the defendant pro- which we order to be paid by the semised to execute a proper conveyance, curities [the defendants) on the dates to make out an abstract of title, and hereunder specified;” with a special deliver possession from the 1st of Jan- traverse that the arbitrators made uary, 1840, &c. At the trial, the fol- their certificates of and concerning lowing paper, signed by the defend the said matter in reference so subant, was read in evidence: “I
agree mitted to them as aforesaid, modo et to sell the house and fixtures, No. 163, forma. Piccadilly, to commence from the 1st Held, that the allegation in the deof January next, for £60:”—Held, claration, that the subject-matter of that this document imported the sale the reference was the particular action of an interest in fee simple, and did against T. C., was not sustained by not sustain the contract as alleged in the production of the certificate, withthe declaration. Hughes v. Parker, out evidence to shew that the arbitra
244 tors really adjudicated on the cause 2. Declaration in assumpsit stated only; and that this objection was availthat an action had been commenced able under the traverse in the plea. by the plaintiff against T. C. for the King v. Bowen,
625 recovery of 2101. 128. 7d., alleged to be due from T. C. to the plaintiff on
PRACTICE. an account delivered to him by the See PLEADING, I; II, (1), (2). plaintiff: and thereupon, in considera- SCIRE FACIAS. tion that the plaintiff had consented
(1). Time for declaring. to stay all proceedings in the said action, on security being given to him
Whether an appearance be entered for the payment of such sum as might
in term time or vacation, the plaintiff be found due from T. C. to the plain-has the whole of the term next followtiff on the said account, the plaintiff ing to declare in; and therefore, where and T. C. having agreed that such ac
an appearance was entered in Easter count should be submitted to arbitra- Term, and judgment of non pros.signed tion, the defendants agreed to pay the in Trinity Term, it was held that the plaintiff such part of the said sum of judgment was irregular. Foster v.
664 2101. 128. 7d. as upon such arbitra
Pryme, tion should be found due from T. C. (2). Short Notice of Trial. to the plaintiff. The declaration then Where a defendant obtained an oralleged, that the action was submitted der for time to plead, on the terms of to the arbitration of two persons taking short notice of trial for the sitnamed, who accordingly certified that tings in or after Easter Term:-Held, there was due from T. Č. to the plain- that he was not thereby obliged to tiff the sum of £120; and that the take short notice of trial for the sitcosts amounted to a further sum of tings in or after any subsequent term, £93; but that neither T. C., nor the but the plaintiff must, in such case, defendants paid the same or any part give an ordinary notice. Slatter v. thereof.