tion proved to be such by extrin-
sic evidence; for evidence which
could not have been adduced in
the former action might have
been given in the latter; e. g.
Fulljames might then have proved
that the defendant Fletcher had
been a joint contractor with him
to Lechmere, whereas Lechmere
could not have so proved a joint
debt in his first action against
them both, or could he have
used Fletcher's written acknow-
ledgment as to a moiety, to take
the joint debt out of the statute
of limitations. S. C.

Payment of money into court admits

the contract as pleaded, and da-
mages thereon to the extent of the
sum paid in; but where it was
made on a special count alleging a
new promise to pay the defend-
ant's proportion of a joint debt,
so as to take a case out of the sta-
tute of limitations :-Held, that it
did not admit the amount of that
proportion, it being laid under a
videlicet. S. C.
The master of a ship was dispatched
by the owners from England to
Miramichi, with orders to buy
timber and draw on them for the
amount. He went there accord-
ingly, bought timber, drew a bill
there on them for the amount, in
favour of the seller or his order,

and delivered the cargo to the
owners in Liverpool, before the
bill, which was drawn at 60 days'
sight, was presented to them there
for acceptance, and before 60 days
from its date had elapsed. The
bill, bearing several indorsements,
was duly presented to the defend-
ants for acceptance, and was pro-
tested for non-acceptance. The
plaintiff was known to be at Liver-
pool for several months after the
refusal to accept, before he went
to India. On his again going to
Miramichi he was arrested as

drawer of the bill, at the suit of
an indorser, and paid it in order
to his liberation. He then sued
the defendants in a special action
of assumpsit, for not paying the
bill, for not accepting it, and for
not indemnifying him against all
loss, &c. sustained by him from
the drawing it. He did not prove
at the trial that he had received
any notice whatever of the dis-
honour:-Held, that under the
circumstances existing between the
parties to the action, such notice
was not an essential part of the
plaintiff's case, and also that the
law would imply a promise by the
defendants, not to accept or pay
the bill, but to indemnify the plain-
tiff against the consequences of his
drawing it; consequently, that the
statute of limitations did not apply,
though no damnification occurred
till more than six years after the
promise to indemnify. Huntley v.
Sanderson and Wilkinson, E. 1833.

LOCAL ACT.
See CONSTABLE.

LODGINGS.
See DISTRINGAS.

469

MARRIAGE SETTLEMENT.
Real property was conveyed by mar-
riage settlement to the trustees to
the use of husband for life, and
after his decease to the use and
intent that his wife, if surviving,
should receive a weekly sum out
of the rents, and subject thereto
that the trustees should thereafter
stand possessed of the residue of
them, to the use of all and every the
child and children of the settlor's
former wife (naming them) and
their issue lawfully begotten and
to be begotten, equally to be
divided between and
amongst

See PRACTICE.

OFFICE AND OFFICER.
See PAYMASTer.

OUTLAW.

181

An outlaw died abroad before a trea-
sury warrant and attorney-general's
consent were granted, in order to
authorize the sheriff to pay over
money in his hands to the plain-
tiff in the action under a capias ut-
lagatum :-Held, that that warrant
and consent granted in ignorance
of the defendant's previous death,
did not vest the money in the
plaintiff, and the court, on motion
of the defendant's executors, stayed
payment over to the plaintiff by
the sheriff till their plea of defend-
ant's death should be traversed and
the facts tried. Rex at the suit of
Nightingale v. Buchanan, M. 1832.

PARTNERS.

See LANDLORD AND TENANT-
MASTER AND SERVANT.

PARTNERSHIP.

229

See APPROPRIATION OF PAYMENTS.

PAYMASTER.

By the statute 48 G. 3. c. 1. s. 10.,
the six commissioners of the trea-

sury shall and may, from time to
time, by writing under their hands,
constitute and appoint such person
or persons as they shall think fit,
to be the paymaster or paymasters
of the exchequer bills; and by s. 12,
such paymasters are to have and
receive such salaries and allowances
as the commissioners for the time
being shall direct to be allowed
them; but there is no express
enactment that the commissioners
might remove such paymasters at
pleasure-Held, that the office of
paymaster of exchequer bills is an
office during pleasure only, and not
for life or during good behaviour.
Semble, that the appointment of a
new paymaster, reciting in the in-
strument of his appointment that a
former one had resigned, is a re-
vocation of his appointment, whe-
ther he has in fact resigned or not;
particularly if the former paymaster
sue for the emoluments of his of-
fice, as having been received to his
use by his successor; and semble,
that such revocation may take
place, though no power of revoca-
tion is reserved in the first appoint-
ment, and no revocation is stated
in the second. Smyth v. Latham,
(in Error,) E. 1833.
The fact of the former paymaster's
resignation need not be proved by
the new one in an action against
him by his predecessor for fees re-
ceived to his use, though stated in
the successor's appointment to the
office, produced at the trial. S. C.

PAYMENT.

509

See APPROPRIATION.
Rebutting presumption of. See Evi-

DENCE.

Payment in part. See Brigstocke v.
Smith, 445.

Of money into court. See Lechmere
v. Fletcher, 450.

In satisfaction of execution, 459, et
seq.

See LIBEL-SLander.
Where a defendant agreed to pay the
plaintiff the sum of 251. in full for
his share of the costs of a lease to
the defendant, to be procured for
him by the plaintiff, and to be pre-
pared by his solicitor, and of an
agreement for so procuring it:
Held, that the declaration was
sustainable without any allegation
that costs had been incurred, or of
their amount, or that notice had
been given thereof to the defend-
ant. Townsend v. Burns, M. 1832.

104
If a plea pleaded as in answer to the
whole of a count leaves unanswered
any good part, the plaintiff will
have judgment on demurrer.
Crump v. Adney, E. 1833.

270, 279
In trespass for assault, a plea stated
that J. E. and S. B. were possessed
of a dwelling-house and close, and
being so possessed the plaintiff was
wrongfully there making a noise,
&c. and that defendants as ser-
vants of J. E. and S. B., and by
their command,requested him to de-
part, which he refused: whereupon
defendants, as their servants, gently
laid hands on plaintiff, &c.: and
because plaintiff was armed with
pistols, and assaulted them, they
to protect themselves necessarily
laid hold of and a little hurt the
plaintiff:-Held, that a general re-
plication "de injuria" is good, for
the command of J. E. and S. B.
may be involved in the issue so
raised without any special traverse.
Pigott v. Kemp and others, M. 1832.

128

Trespass for assaulting the plaintiff
in the county of Somerset ; the plea
justified the assault in defence of

152

possession of a dwelling-house,
with an averment "which are the
said supposed trespasses, and
whereof the said plaintiff hath
complained against the said de-
fendants;" and concluded with a
traverse "without this the plaintiff
was guilty elsewhere than in the
said dwelling-house :"-Held, that
the quæ sunt eadem included in
the traverse the place laid in the
declaration, and that the plea was
therefore bad on special demurrer
for surplusage in adding a special
traverse. Hembrow v. Bailey and
others, M. 1832.
The plaintiff's declaration described
him as Earl of Stirling; the defend-
ant pleaded in abatement that the
plaintiff was not nor is Earl of S. A
replication that he was and still is
Earl of S., concluding to the
country, was held bad on demurrer
for default of shewing how he
claimed that dignity, so as to de-
cide the mode of trial. Semble,
that the dignity thus claimed must
be taken to be English, the Chris-
tian and surname of the party not
being stated, as must be done in
cases of dignities not English.
Stirling, Earl of, v. Clayton, M.

154

1832.
Where in an action on a promise to
pay the debt of another, the plea
is that no note in writing was signed
by defendant or any person, &c.
Semble, the plaintiff cannot take
issue, but must set out the agree-
ment in his replication. Lowe v.
Eldred, M. 1832.
234
Issues tendered in pleading must not

be alleged argumentatively, but in
terms on which a direct issue can
be taken; thus where in debt on a
bail bond, the plea stated that no
proper affidavit of debt was filed
in the original action, it was held
bad on demurrer. Hume and others
v, Liversidge and others, H. 1833.

257

Since 2 W. 4. c. 39, (Uniformity of
Process Act), no declaration in the
Exchequer should state any debt
to the king in its commencement,
or contain the old quo minus clause
at the end. Hurst v. Pitt, H. 1833.
264

An avowry stated that the plaintiff
was an inhabitant of a parish, and
rateable to the relief of the poor
in respect of his occupation of a
tenement situate in the place in
which, &c. that a rate for the re-
lief of the poor of the said parish
was duly made and published, in
which the plaintiff was in respect
of such occupation duly rated in
the sum of 71.: that he had notice
of the rate, and was required to
pay, but refused: that he was
duly summoned to a petty session
to shew cause why he refused:
that he appeared and shewed no
cause; whereupon a warrant was
duly made under the hands of two
justices of the peace, directed to one
of the defendants, requiring him to
make distress of the plaintiff's
goods that the warrant was de-
livered to the defendant, under
which he, as collector, justified
taking the goods as a distress, and
prayed judgment and a return.
Plea in bar de injuria sua propria
absque tali causa.

Special demurrer, assigning for cause
that the plea offered to put in issue
several distinct matters, and was
pleaded as if the avowry consisted
merely in excuse of the taking and
detaining, and not a justification
and claim of right:-Held, that
the plea in bar was good. Bardons
and others v. Selby, E. 1833. 430
Where several acts of assault and im-
prisonment are alleged in separate
counts, the circumstances relied on
as justifying them must be directed
to each different occasion on which
the defendant is charged with a
trespass; and it is not sufficient to

Defendant having charged plaintiff

with felony, the plaintiff was taken
up for it under a justice's warrant.
At a hearing before the justice, the
plaintiff was let go on his promise
to re-appear in a week; upon
which the defendant said he had
another charge of forgery against
him; the plaintiff was stopped by
an officer and again put to the bar,
but dismissed on a similar pro-
mise:-Held, that plaintiff's re-
medy against the defendant was in
case and not in trespass. Barber
v. Rollison, H. 1833.
Goods were sold for ready money,
and packed up at the seller's house
in boxes furnished by the pur-
chaser, who saw the packing and
requested the seller to keep them
for him till he could call, pay for,
and take them away :-Held, that
on a count for goods sold and de-
livered, plaintiff was rightly non-
suited. Boulter v. Arnott, H. 1833.

266

POWER.

122

A power of appointment was given
by will to be by M. S. duly exe
cuted and published under her
hand and seal, in the presence
of
and attested by three or more cre-
dible witnesses. M. S. signed,
sealed, and delivered as and for
her last will, an instrument ending
and attested thus: "In witness
whereof I have set my hand and
seal hereto this 5th day of August,
A. D. 1801, in the presence of the
underwritten Mary Swift." (L.S.)
Opposite this "Signed, sealed, and
delivered, this 5th day of August,
1801, as the last will and testament
of the said testatrix M. S., who in
her presence and in the presence
of each other, have put our names
as witnesses thereof: H. F., J. G.,
R. F." :—Held, that the power
was well executed and the will
valid. Ward and others v. Stift
and others, M. 1832.
A pauper settled in G., resided for
some time in the neighbouring pa
rish of St. F., being relieved there
by G. The relief was discontinued
on the ground of his not being re-
sident in G. The pauper after-
wards was taken ill with consump
tion. After the plaintiff, a medical
man, had attended him eight or
nine weeks, he sent a letter by the
pauper's wife to the overseers of
G. After reading it, one of them
said that the plaintiff had been at-
tending the pauper some time be-
fore then. They thereupon re
newed their former weekly allow-
ance for maintenance, and con-
tinued it until the pauper's death,
but neither prohibited the plaintiff
to attend the pauper or furnished
him with other medical assistance:
Held, that they were liable to pay
so much of the plaintiff's bill
for medicines &c. as was incurred
after the letter was received. Payn
ter v. Williams and another, T. 1833.
894