that this allegation was divisible, and that proof that plaintiff was possessed of land only, and entitled to the right of common in respect of it, was sufficient to entitle him to damages pro tanto, Rickets v. Salwey, Page 360 18. No man can be allowed to allege his own fraud to avoid his own deed; and, therefore, where a deed of conveyance of an estate from one brother to another was executed to give the latter a colourable qualification to kill game: Held that, as against the parties to the deed, it was valid, and was sufficient to support an ejectment for the premises. Doe v. Roberts, H. 59 G. 3. 367 19. In a conviction founded upon 5 G. 3. c. 14. s. 3., it must be distinctly stated, in the information and in the evidence, that the proceeding was at the instance of the owner of the fishery; and, therefore, where it was merely stated in the memorandum of a conviction that the proceeding was at the instance of such owner, and where the information, without containing any such allegation, concluded with a mere prayer of judgment on behalf of such owner, and the evidence was wholly silent on the subject, the conviction was held to be bad. The King v. Daman, H. 59 G. 3. 378 20. A note, whereby the maker promised to pay to A., or to B. and C., a sum therein specified, value received, is not a promissory note within the meaning of the statute of Anne. An action cannot be maintained at common law upon such an instrument, even by the payee against the maker, although it is stated on the face of the note to be given for value received. Blanckenagen v. Blundell, E. 59 G. 3. 417 21. A bond, with one surety only, 23. Page 431 22. The steward of a court baron is a judicial officer; and trespass will not lie against him where his bailiff by mistake took the goods of B. under a precept commanding him to take in execution the goods of A. Holroyd v. Breare, E. 59 G. 3. 473 Where a defendant covenanted that he would at all times and seasons of burning lime supply the plaintiff and his tenants with lime at a stipulated price for the improvement of their lands and repair of their houses: Held that this was an implied covenant also that he would burn lime at all such seasons, and that it was not a good defence to plead that there was no lime burned on the premises out of which the lessor could be supplied. Earl of Shrewsbury v. Gould, E. 59 G. 3. 487 24. A verbal gift of a chattel, with out actual delivery, does not pass the the property to the donce. Irons v. Smallpiece, E. 59 G. S. 592 Page 551 25. In the execution of criminal process against any man in the case of a misdemeanour, it is necessary to demand admittance, before the breaking of the outer door of the house can be legally justified. Quære, if so in the case of felony. Launock v. Brown, E. 59 G. 3. 26. A. had wrongfully, and without the licence of B., ridden his horse, and thereby caused its death: Held that a promise by a third person to pay the damage thereby sustained, in consideration that B. would not bring any action against A., is a collateral promise within the statute of frauds, and must be in writing. Held, also, tha a motion for a new trial where the ⚫ cause has been tried during the term may be made at any time within four days after the distringas is returnable. Kirkham v. Marter, E. 59 G. 3. 27. In a public navigable river, 20 years' possession of the water at a given level, &c. is not conclusive as to the right. 613 repaid. Toovey v. Milne, T. 59 G. 3. Page 683 29. Declaration alleged that before the publishing of the libel, a carriage, in which one E. S. was riding, was passing on a certain highway, and that plaintiff was there driving another carriage, and that it happened, without any negligence, fault, or furious driving on the part of the plaintiff, that the two carriages came in contact together, whereby the carriage in which E. S. was riding was overturned, and the said E. S. was injured. The delaration then proceeded to allege that the defendant published a libel of and concerning the plaintiff, and of and concerning the said accident, and that allegation was made in every count of the declaration. The defendant pleaded, 1st, Not guilty; 2dly, Justification to the whole of the libel in the first count of the declaration, and stated that the accident mentioned in the supposed libel was the same accident mentioned in the introductory part of the declaration, and that it was occasioned by the careless and furious driving of the plaintiff. The defendant then pleaded a justification only as to part of the libel contained in the second count, that the said E. S. had been thrown from a chaise, owing to the hard driving of the plaintiff; but there was no justification as to the other part. The jury found a verdict for the defendant on the justification; and they found a verdict for the plaintiff as to that part of the libel to which no justification was pleaded: Held that the word "accident" in this declaration meant the collision of the carriages only, and that the allegation that that collision was occasioned by the furious driving of the plaintiff, was a separate and dis distinct allegation, and that the verdict therefore was right. Lord Churchill v. Hunt, T. 59 G. 3. 756 Page 685 30. Trover will lie for the mis-delivery of goods by a warehouseman, although such mis-delivery has occurred by mistake only. Devereux v. Barclay, T. 59 G. 3. 702 31. Declaration stated that defendant went before one R. C. Baron Waterpark of Waterfork, in the county, &c., and the proof was that he went before R. C. Baron Waterpark of Waterpark, in the county, &c.: Held that the allegation in the declaration was a description of a name of dignity, and therefore that this was a fatal variance. Walters v. Mace, T. 59 G.3. 32. Assumpsit on a promissory note, Plea 1st, General issue. 2dly, Statute of limitations. There was no plea nor notice of set-off. It was proved, that on the plaintiff shewing the defendant the note within six years, the latter said, "You owe me more money, I have a set-off against it:" Held by Bayley and Holroyd, Justices, Best, J. dissentiente, that that was not a sufficient acknowledgment within six years, to take the case out of the statute of limitations. Swan v. Sowell, T. 59 G. 3. 759 33. A. employed B. and C., who were partners as wine and spirit merchants, to purchase wine and sell the same upon commission. C. the managing partner, represented that he had made the purchases, and that he had sold a part of the wines so purchased at a profit; the proceeds of such supposed sales he paid to A., and rendered accounts, in which he stated the purchases to have been made at a certain rate per pipe. In fact, C. had neither bought tions were wholly fictitious, but B. was wholly iguorant of that. Upon the whole account a larger sum had been repaid to A., as the proceeds of that part of the wine alleged to be resold, than he had advanced; but the other part of the wine, which C. represented as having been purchased, was unaccounted for: Held that B. was liable for the false representations of his partner; and that A. was entitled to retain the money that had been paid to him upon these fictitious transactions, as if they were real. Held, also, the supposed purchases having been represented to have been made at a certain specified rate per pipe, that A. might maintain an action for money had and received to recover the specific sums advanced for the number of pipes of wine unaccounted for. Rapp v. Latham and Parry, T. 59 G. 3. Page 795 The POOR. pauper being a settled inhabitant of A., subsequently acquired a settlement in the township of B. The latter township afterwards ceased to exist as a place capable of maintaining its own poor: Held notwithstanding that the previous settlement in A. having been extinguished, the pauper could not be removed thither from a third town as to the place of his last legal settlement. Quare, Whether in such a case a removal to the parish of which the township of B. formed a part would not be good. The King v. Saighton on the Hill, M. 59 G. 3. 162 POWER, See DEED, 1. nor sold any wine. The transac- 1. M. P. devised all her lands, &c. not well executed by the two trustees, both of whom had wholly declined to act in the trust. Sharp v. Sharp, E. 59 G. 3. Page 405 PRACTICE, See PLEADING, 8, 9. COSTS, 1. 1. Declaration stated that plaintiff had sold to defendant a quantity of oak at the average price of the season, to be ascertained before a given day, and then averred that before that day the average price was ascertained to be a given sum. Held that the payment of money into court did not admit that the average price was that stated in the declaration. Stoveld v. Brewin and Another, M. 59 G. 3. 116 2. An attorney, who had not practised on his own account since his last certificate expired, may be readmitted without paying any fine or arrears of duty. Ex parte Clarke, H. 59 G. 3. in Westley, in the county of S. to A. and his issue; and in default of issue to such uses as A. might by his will appoint: A., by a will made in the life-time of M. P., devises all his lands in the parish of Worthen and elsewhere, in the county of S., after several estates for life and in tail, to his own right heirs in fee; and afterwards, by a codicil made after the death of M. P., revokes the devise of the reversion to his heir (in all other respects expressly confirming the will), and then devises the reversion in fee of all his said lands in the parishes of Worthen, Westbury, and Cherbury, in the county of S., to B.; A. had no other land in Westbury, except what he took under the will of M. P.: Held, however, that the power of appointment was not well executed by the codicil. Powell v. Loxdale, H. 59 G. 3. Page 291 2. A. by his will bequeathed to R. S. and R. L. R. a sum of money 3. upon trust; and to M. S., R. S., and G. A. D., certain personal property upon trust; and then devised his real property to R. S. and G. A. D., also upon trust; and then directed that if either of his said trustees, the said R. S. and R. L. R., so far as applied to the trusts reposed in them respectively, or the said M. S., R. S., and G. A. D., so far as applied to the trusts reposed in them respectively as aforesaid, should decline to act, &c., it should be lawful for the survivor of the trustees so acting in the trusts wherein such vacancy should happen, or the executors or administrators of the last surviving trustee, to appoint other trustees: Held, first, that this power only extended to the two first classes of trustees, and not to the trustees of the real 8. estate; held, secondly, that it was 314 The court will not set aside an attachment against the sheriff for not bringing in the body on payment of costs, on the application of the defendant, who swore to merits, where it appeared that no bail-bond had been taken by the sheriff. The King v. The Sheriff's of London, H. 59 G. 3. 354 4. Judgment signed after a summons for further time to plead is returnable, is irregular. Morris v. Hunt, H. 59 G. 3. 355 Waiver of irregularity. H.59 G.3. 373 6. Defendant is not entitled to an imparlance where he has by his own act prevented plaintiff from declaring within the term. Page v. Vogel, H. 59 G. 3. 5. 7. 390 A plea of comperuit ad diem on debt on bail-bond must be delivered. Rowsellv. Cox, H. 59 G.3. 392 A general plea of bankruptcy must be delivered, and not filed. Hen derson derson v. Sansom, H. 59 G. 3. 9. In an action on the 29 Eliz. c. 4. 400 The 12. The plaintiff's attorney directed the sheriff's officer, who had arrested the defendant, not to let him at large without an express consent from him, the attorney, as he had a lien for his costs. sheriff's officer did, by the authority of the plaintiff in the action, but without that of the attorney, let the defendant go at large: Held that the sheriff was not liable to the attorney for his costs. jury, without the knowledge or consent of the defendants, separated at night: Held that the verdict was not, therefore, void; and that it formed no ground for granting a new trial, it not appearing that there was any suspicion of any improper communications having taken place. The King v. Kinnear & Others, E. 59 G. 3. Page 462 14. The Court refused to set aside the verdict in ejectment, on the ground that there was a variance between the description of the premises in the nisi prius record (upon which the plaintiff recovered) and the issue; it not being stated how the premises were described in the declaration delivered. Doe, Dem. Cotterill, v. Wylde, E. 59 G. 3. 472 15. Where the appeal is against the overseer's accounts by individuals paying rates within the parish, the certiorari is not taken away by 50 G. 3. c. 49.; that act only applying to appeals by the overseers against the disallowance of any items in their accounts by the magistrates. The King v. Bird, E. 59 G. 3. 522 16. Where an avowry stated that the defendant held the premises at certain yearly rent, to wit, the yearly rent of 721. and the plaintiff pleaded, 1st, non tenuit; and, 2dly, riens in arrear; and the first plea was found for the plaintiff: Held that the second plea became thereby immaterial, and that the proper course was to discharge the jury from finding any verdict upon it, but that if any verdict was entered upon it, it must be entered for the plaintiff. Cossey v. Diggons, E. 59 G. 3 546 Mar-17. A warrant of attorney to confess judgment is not void for omitting to state in the defeasance a collateral security for the same debt. Sansom v. Goode, E.59 G.3. 569 18. Bail tin v. Francis, H. 59 G. 3. 402 13. Upon the trial of an indictment for a misdemeanor, which contitinued more than one day, the |