men were to be sworn in as constables, and invested with similar powers. By a subsequent section it was provided, that no action &c. should be commenced against any person or persons for any thing done or to be done under or by virtue of that act, until one calendar month's notice should have been first given in writing to the clerk of the commissioners, of the cause of action, nor at any time whatever after sufficient satisfaction or tender made to the party aggrieved:-Held, that the section requiring notice to be given, extends to acts done by constables and watchmen. 2dly, That the primâ facie evidence that constables and watchmen had acted as such, entitled them to such notice without producing their written appointments. 3dly, That where there was reasonable ground of suspicion that felony had been committed by the plaintiff, and the constables went accordingly to his house to apprehend him for it, but used more violence than necessary for that purpose, and beat him, they were entitled to notice. Butler v. Ford and Ledger, T. 1833. 677

CONTRACT.

Where A., for a valuable considera

tion, contracted to sell and plant 70,000 trees on certain lands of the defendant, and also "well and sufficiently to keep in order the trees aforesaid, for two years next after the planting thereof, and that such of them as should die during such period, except from injury by sheep, game, or cattle, should be replanted in the autumns of the two years by him:"-Held, that evidence of non-performance by A. of any part of his contract, by which the trees had become of less value to the defendant, was admissible to reduce the damages in

an action on the agreement for their price, and for planting them. Allen and another, assignees, v. Cameron, T. 1833. 907 Semble, that this agreement meant to keep in order, not by pruning only, but by weeding and clearing the ground about the trees. S. Č. Semble, that if the terms of an agreement are equivocal, and do not distinctly explain what is to be done by either party, the price may be taken into consideration in ascertaining the right construction.

CORONER.

See SHERIFF.

COSTS.

See INFANT.

S. C.

Of several counts, see Ward v. Bell, 904; Hall v. Ashurst. 426 Where the defendant obtained a verdict on a plea going to the whole declaration, and the jury was discharged from finding a verdict on two other pleas:--Held, that the defendant was not entitled to recover costs on them. Vallance v. Evans, T. 1833.

865 Costs of taxation will not be allowed as "costs in the cause" on a defendant's undertaking to pay to assignees of bankrupt attornies the taxed amount of a bill of costs due to the latter, and the "costs of the action." Featherstonhaugh and another, assignees, &c. v. Keen, E. 1833. 540 Where some of several defendants demur to particular counts, and plead not guilty to the rest, while the other defendants plead not guilty to the whole, the defendants who demur cannot, on obtaining judgment on their demurrers pending the trial of the issues in fact, tax their costs on that judgment; nor semble can they have judgment

A rule for discharging a party illegally arrested having been obtained, was referred by the court to a judge at chambers, who ordered the applicant to be discharged, and offered to give him the costs of his application if he would undertake to bring no action for the arrest; but on his refusal, made no order about costs. An action of trespass and false imprisonment was afterwards brought, laying inter alia as damage, that the plaintiff had been obliged to pay and had paid a large sum of money in order to procure his discharge. There was no distinct evidence of payment of the money by the plaintiff to his attorney:Held, first, that the plaintiff was entitled to recover his costs as special damages in this form of action: but secondly, that as the declaration alleged actual payment of them by him, he could not recover that part which he had not paid, but so much only as had been advanced on his account, by his attorney, as for so much money paid by himself through an agent. Semble, that had the count only alleged that the plaintiff had been forced and obliged, and become liable to pay damages for such liability to his attorney, it might have been recovered. Pritchett v. Boevey, bart. and others, T. 1833.

949 Costs of lease, 101. See PLEADING. Costs treble. See HIGHWAY-WIT

NESSES.

COURTS OF REQUESTS.

A master of a ship trading constantly from London to Rotterdam, having no residence or place of carrying

on business in London, but merely being there during the loading and unloading his cargo at a particular wharf, is not entitled to the protection of the London court of request act, where a verdict for less than 51. is recovered against him, though he buys necessaries in London for each trip. Double v. Gibbs, M. 1832. 224 Semble, an action for use and occupation may be brought in the London court of requests, notwithstanding the exception in s. 11 of 39 & 40 G. 3. c. 104. S. C. Where a plaintiff recovers a verdict for less than 51. against a defendant residing within the jurisdiction of a local court of requests, created by statute, the defendant may, within the first four days of the next term, move to enter a suggestion on the roll to deprive the plaintiff of costs, though the judge at nisi prius had made an order under 1 W. 4. c. 7. s. 2, that the plaintiff should have execution within a time fixed, upon which final judgment had been signed and execution issued. Baddeley v. Oliver, M. 1832. But semble, it should be made part of the motion, that so much of the final judgment as relates to costs should be struck off the roll. S. C. The general test by which the court will decide whether the plaintiff ought to have sued in a court of requests, is the amount proved at the trial, and found by the verdict of the jury in the superior court, not that which the plaintiff claims to be due. S. C.

COVENANTS, 637.

145

CROPS BARGAINED AND SOLD, AND LABOUR.

See LANDLORD and Tenant.

but sold them before they were cut, the remedy was held to be, under section 19, in an action of trespass, or on the case, for the special damage sustained by that irregularity, and no more; and in such an action on the case, with a count in trover, the landlord was held entitled to deduct the rent due to him from the difference between the price which might have beenobtained had the sale been regular, and that which was obtained under the irregular sale; so that where no such difference existed, from the crops having been sold for their full value, while the rent due exceeded the produce of that sale, the tenant recovered nominal damages only. Proudlove 260 v. Twemlow, H. 1833.

DISTRINGAS.

161

The old practice, as to the requisites of affidavits in order to ground a motion for a distringas after a writ of venire, applies to the new process by writ of summons. Johnson v. Rouse, M. 1832. A distringas will be granted for the purpose of enabling a plaintiff to proceed to outlawry in some cases, when the affidavits are not sufficient to ground a distringas to compel the defendant to enter an appearance. Hewitt v. Melton, T. 1833.

822 Phillips v. Bowen. Same v. Price, S. P. Ibid. note.

In order to obtain a distringas the party attempting to serve a writ of summons must leave a copy of it at the dwelling-house of the defendant. Street v. Lord Alvanley, M. 1832. The copy of the writ of summons must be left on the third day at the last call for the purpose of serving the defendant with the summons,

162

or no distringas will be granted. Hill v. Mould, E. 1833. 162 n. Eight days must elapse from the day

when the person who attempted to serve process last called at defendant's dwelling-house and left a copy of process, or no distringas will be granted. Brian v. Stretton, M. 1832. 163 Where a distringas is returned non est inventus and nulla bona, and defendant's residence is a furnished lodging, attempts to execute the warrant should be made, the copy of the distringas and warrant issued thereon, should be left at the lodgings, and an affidavit made stating the facts, and also that inquiries have been made, whether the defendant had goods elsewhere. If none can be discovered, the plaintiff will be suffered to enter an appearance for defendant and proceed to judgment and execution under 2 W. 4. c. 39. s. 3. Cornish v. King, E. 1833. 575

It cannot be made part of the above rule, that service of notice of declaration at the defendant's last known place of residence, and sticking up a declaration in the office, be deemed good service. S. C.

EASTER.

The Reg. Gen. Easter, 2 W. 4. (1832), as to the days between the Thursday before and the Wednesday next after Easter day, is altered by stat. 2 W. 4. c. 39. s. 11. Alston v. Undershill, H. 1833. 427

EJECTMENT.

Service of a declaration in ejectment

on one of two joint tenants in possession is sufficient, if such joint tenancy appear on the affidavit of service. Doe d. Gaskell v. Roe, M. 1832. 84 If a declaration in ejectment contains demises not only stating the names

In an action in 1832, on a bond dated September, 1805, the plaintiffs, in order to rebut the presumption of its payment, proved that a sum equal in amount to the interest which would be due on it, had been paid by the obligor to M. T. in 1826 or 1827, after demand made on her behalf of interest due on a bond. Next, in order to apply that payment to the bond, they offered in evidence an indorsement thereon signed by the obligee, and stating that the principal money secured was not his money, but trust money under a will, which was to be placed out by himself and the obligor. The indorsement purported to bear date on the same day with the bond, and was attested by one of the witnesses to it, but was not proved to have been seen by or known to the obligor. Nothing appeared to show that it was not signed on the day it bore date, or at a period nearly contemporaneous:-Held, that the indorsement was admissible in evidence for the representatives of

the deceased obligee, it having been made by him against his interest at the tine, and he having peculiar means of knowledge of the fact, without any motive to misrepresent it. Gleadow and others v. Atkin and another, H. 1833. 289 Proceedings had in an insolvent

court while 1 G. 4. c. 119. was in force, may be proved by producing certified copies under the seal of the court, proved to be such, and purporting to be signed by the officer, that being the mode prescribed by 7 G. 4. c. 57., and without proving the signature of the officer as required by 1 G. 4. c. 119. Doe v. Evans and others, H. 1833. 339 In an action on the case for escape from custody on an attachment for non-payment of costs pursuant to a decree in equity, a count alleging the suit to have been commenced and pending is supported by proof of the order for the attachment, of the certificate of the master's taxation, and of the decree itself. Semble, that a decree in equity is admissible in evidence without reciting the previous proceedings therein, or proving them, where the object of its production is to prove the existence of the decree, and not any facts previously in issue in the suit. Quære, if debt lies for an escape from custody under an attachment for nonpayment of costs, pursuant to a decree in equity. Blower v. Hollis,

H. 1833. 356 Where a written instrument sued on is attested by a subscribing witness, who is dead or abroad out of the reach of the process of the court at the time of the trial, it is requisite to give some evidence. that the party who signed the instrument is the defendant sought to be charged under it, as well as to prove the handwriting of the

Whitelock v. 541

54 n.

subscribing witness. Musgrove, E. 1833. Evidence must be given of identity of the obligor of a bond with the party sued thereon, where the subscribing witness proves that he never saw the defendant before or after he saw him execute it. Logan v. Allder. Where a question arose as to the identity of the plaintiff with a person who appeared in a dressing gown in the passage of the plaintiff's house near the street door, and asked a party who called to make an inquiry from the plaintiff as to the solvency of an indorser of a bill," what his business was:" —Held, first, that without further evidence of who the person was, his identity with the plaintiff was not sufficiently established to let in evidence of what he said on that occasion; and secondly, that it was for the judge and not for the jury to decide whether the identity was sufficiently proved; for the question of identity was preliminary to the admissibility or rejection by him of the declarations of the person sought to be identified with the plaintiff. Corfield v. Parsons, T. 1833.

EXCHANGE. See BILL.

EXECUTION.

806