MALICIOUSLY &c.

MALICIOUSLY NOT GIVING NOTICE THAT A JUDGMENT WAS SATISFIED.

1. E. having obtained a judgment against F. and T., he, by H., his attorney, sued ont concurrent writs of ca. sa. into London and Surrey. F. was taken on the former writ, and, on giving to H. a promissory note jointly with B. as his surety, was discharged. No notice of this was given to the sheriff of Surrey, and he took T. on the other writ of ca. sa. In an action against H. for maliciously omitting to give notice to the sheriff of Surrey, that the judgment had been satisfied by the arrangement with F.:-Held, that, to support this action, the jury must be satisfied that there was malice; but that to constitute malice it was not necessary that H. should have acted from any spite or ill-will, or the like, but that, if he acted as he did from any indirect motive, such as to get the debt for his client from T., or to get more costs for himself, that would be malice for this purpose. Held, also, that the mere fact of H. not giving notice to the sheriff of Surrey that the judgment had been satisfied was one from which alone the jury might infer malice; but that, if they thought that H. had been defrauded when he received the promissory note, or had taken it on a representation that the parties were solvent when they were not so, this would go to negative the malice. Tebbutt v. Holt, 280

2. In an action for maliciously omitting to give notice to the sheriff that a judgment had been satisfied by another co-defendant, whereby the plaintiff was taken in execution after the judgment had been satisfied, the jury found for the plaintiff, with nominal damages. The judge would not certify, under the stat. 3 & 4 Vict. c. 24, that the grievance was wilful

1. Semble, if A. kill B. under provocation of a blow not sufficiently violent in itself to render the killing manslaughter, but the blow be accompanied by very aggravating words and gestures, that will be but manslaughter in A. Reg. v. Sherwood, 556

2. Where husband and wife are separated by common consent, the husband granting the wife a stipulated allowance, which is regularly paid, he is not bound to supply her with shelter; but if he knows, or be informed that she is without shelter, and refuses to provide her with it, in consequence of which her death ensuesSemble, that he is guilty of manslaughter, (even though the wife be labouring under disease which must ultimately prove fatal), if it can be shewn that her death was accelerated for want of the shelter which he had denied. Reg. v. Plummer,

MAP.

600

On the trial of an indictment for the non-repair of a highway, a map of the parish, produced from the parish chest, which map was made under an inclosure act, (which was a private act, not printed), is not receivable in evidence to shew the boundaries of the parish, without proof of the inclosure act; but it being proved by the surveyor who made the map thirty-four years before the trial, that he laid down the boundaries of the parish from the information of an old man, then about sixty, who went round and shewed them to him:

Held, that, on this proof, the map would have been receivable as evidence of reputation, if it had been also proved that the old man was dead at the time of the trial, but that it was not receivable at all without proof of his death. Reg. v. The Inhabitants of Milton. 58

MARKET OVERT.

See STOLEN GOODS.-TROVER, 2.

MARRIAGE.

See BIGAMY, 1, 4.—EVIDENCE, 22.

MARRIAGE (BREACH OF PROMISE OF).

See RIGHT TO BEGIN, 3.

1. If a man enter into a promise of marriage in ignorance of the fact that the woman has had an illegitimate child, and discovers that before the marriage, and on that ground declines entering into the marriage, he has a right to do so, although the transaction as to the child may have taken place ten or more years ago, and the conduct of the woman may have been since perfectly correct; but, if the man knew, or had reason to know, at the time of the promise, that the woman had such a child, and gave that afterwards as his reason for refusing to marry, that would be no defence in point of law to an action for breach of promise of marriage. Bench v. Merrick. 463

2. Form of plea that the parties agreed to exonerate each other from the promise. 148

3. Form of plea that the defendant broke his promise because the plaintiff was of unchaste behaviour.

A. was charged with drowning a mine, which, in the first count of the indictment, was laid to be the mine of "J. P. and others;" in the second count, as the mine of "J. D. C.;" and in the third as the mine of "R. R." J. P. and his two brothers were the lessees of the mine, but left off working it a few days before the offence, when R. R. worked it, and his name was put on the carts instead of the name of P. R. R. stated that he worked the mine for the benefit of J. D. C., who was trustee for the North and South Wales Banking Company under a deed. No deed was proved at the trial. A. was convicted, and the Judges held the conviction right.

Semble, that there was evidence to support each of the three modes of laying the property. Reg. v. Jones, 181

MISDEMEANOUR.

See JUDGMENT.

If A. counsel and encourage B. to set fire to a malt-house, and B. attempt to set it on fire, both may be jointly indicted as principals for the misdemeanour of attempting to set the malt-house on fire, although A. was not present at the time of the attempt. Reg. v. Clayton, 128

MISJOINDER.

A misjoinder in the declaration is no ground for nonsuiting the plaintiff at the trial. Lamb v. Newbiggin, 549

MORTGAGE.

See BANKRUPT, 4.

A British subject who commits a murder in a foreign country upon a person who was not a British subject, is triable in England under the stat. 9 Geo. 4, c. 31, s. 7. Reg. v. Azzopardi, 203

MUTINY.

If the crew, or part of the crew, of a ship combine together to resist the captain, especially if the object be to deprive him of his command, it will amount to "making a revolt," within the meaning of the stat. 11 & 12 Will. 3, c. 7, s. 9; and it would be no answer to shew that there were grievances, which, by their resistance, the men sought to redress. Reg. v. McGregor, 429

NAME.

See INDICTMENT, 3, 4, 7.

NEGLIGENCE.

See ATTORNEY. EVIDENCE, 3, 12.

NEWSPAPER.

See EDITOR.

NIGHT POACHING. See POACHING.

1. A party, in a notice of action, may describe himself by the addition of what he really is, e. g. "dealer," although in the commitment he is described as a labourer. Mason v. Barker, 100

2. A notice of action to a magistrate for having caused the plaintiff to be imprisoned sufficiently states the place if it states the place in which the plaintiff was imprisoned, although it does not state any place at which the magistrate signed any warrant or did any act which caused the plaintiff's imprisonment. Whether, in such a case, the notice must state the form of the intended action, quære. Prickett v. Gratrex,

651

NOTICE OF DISHONOUR. See BILL OF EXCHANGE, 2, 6.

NOTICE OF TRIAL. See PRACTICE, 1.-TRIAL, 2.

OFFICE COPY. See EVIDENCE, 31.

OPENING OF COUNSEL.

The judge at a trial will not take the facts from the opening of the counsel on the opposite side: therefore, where it was essential to entitle the defendant to notice of action that cattle should have been distrained, the judge would not act on the opening of

See EVIDENCE, 22.

1. A count in an indictment on the stat. 1 Will. 4, c. 66, s. 20, which charges that the prisoner "feloniously and wilfully did destroy, deface, and injure a parish register," is not bad for duplicity, and it is not necessary in such a count to allege a scienter. Reg. v. Bowen, 501

2. The tearing off a part of a leaf of a parish register book, on which part of the leaf is written entries of baptisms, &c., by which tearing the portion of the leaf torn off is entirely detached from the book, is a felony within the stat. 1 Will. 4, c. 66, s. 20, although the portion of the leaf thus torn off be afterwards pasted into the book, so that all the entries are as legible as before. 3. Form of indictment.

PARTNER.

Ibid. Ibid.

See CONTRACT, 2.-LIBEL, 1. If the fact of a man being a dormant partner in a firm become known, and on his retiring from the firm notice of that circumstance be not given to those persons who were aware of his being such partner, he will be liable to those persons for debts contracted by the firm after his retirement therefrom. Farrar v. Deflinne, 580

PASS.

See FORGERY, 3, 4.

PATENT.

1. If, in an action for the infringe

ment of a patent, the defendant plead not guilty, that the invention was not new, and that the specification is not sufficient; and the defendant at the trial consent to a verdict for the plaintiff, without any evidence being given, the judge will not certify, under the stat. 5 & 6 Will. 4, c. 83, s. 3, "that the validity of the patent came in question before him." Stocker v. Rodgers, 99

2. If the inventor of a machine lend it to another in order to have its qualities tested, and that other use it for some weeks in a public workroom; this is not giving the invention such publicity as to deprive the inventor of his right to obtain letters-patent for it. Bentley v. Fleming, 587

3. A machine does not cease to be the subject of a patent, merely because of the length of time during which the inventor may keep it by him, after it has been made a complete workable machine.

PAYMENT.

See RIGHT To begin, 5.

PERJURY.

Ibid.

See FALSE DECLARATION.-TRAVERSE, 4.

1. An indictment for perjury alleged to have been committed on the trial of an action of debt, brought and tried in a county court, stated, in the first count, that the county court was holden before H. M. B., Esq., the high sheriff, and the oath sworn before him; in the second count that the county court was holden before C. J. B., gent., the county clerk, and the oath sworn before him; and in the third count that the county court was held before C. J. B., gent., the county clerk, and the suitors, [naming them], and the oath sworn before C. J. B., "so being such county clerk as aforesaid, and T. J., [naming them], suitors

2. An indictment for perjury stated, that H. L. stood charged by F. W., before T. S., clerk, a justice of the peace, with having committed a trespass, by entering and being in the daytime on certain land in pursuit of game, on the 12th of August, 1843; and that T. S. proceeded to the hearing of the charge, and that, upon the hearing of the charge, the defendant C. B. falsely swore that he did not see H. L. during the whole of the said 12th of August, meaning that he, the said C. B., did not see the said H. L. at all on the said 12th day of August in the year aforesaid; and that, at the time he, the said C. B., swore as aforesaid, it was material and necessary for the said T. S., so being such justice as aforesaid, to inquire of and be informed by the said C. B., whether he, the said C. B., did see the said H. L. at all during the said 12th day of August, in the year aforesaid:"Held, that this averment of materiality was insufficient, because, consistently with this averment, it might have been material for T. S. in some other matter, and not in the matter stated to have been in issue before him, to have put this question, and received this answer. Reg. v. Bartholomew, 366

3. An indictment for perjury, removed by certiorari, came on to be tried as a Nisi Prius record. As soon as the jury were sworn, the defendant asked to have the indictment read at length to the Court and jury. The judge directed it to be done. Reg. v. Newton, 469

4. An indictment for perjury in an affidavit stated the affidavit to have been sworn "before one R. G. W.,