(1). On Banker's Cheque. A declaration, after stating that the defendant was summoned to answer the plaintiff in an action of debt, alleged that the defendant made his draft or order in writing for the payment of money, called a banker's cheque, and delivered the same to the plaintiff, who still was the bearer thereof; that the cheque was presented at the Bank and not paid, whereof the defendant had notice, and then, in consideration of the premises, promised the plaintiff to pay him the amount of the draft on request. Then followed counts for goods sold and delivered, and on an account stated; concluding, "whereby, and by reason of the non-payment of the said several monies" actio accrevit, yet the defendant has not paid the sum above demanded:-Held, on motion in arrest of judgment, that the first count was a good count in debt, as the allegation of the promise might be rejected as surplusage. Debt will lie against the maker of a banker's cheque, by the payee to whom the maker has delivered it. Simpkins v. Pothecary, 253 (2). In Covenant. A declaration in covenant by the assignees of B., a bankrupt, stated, that by a deed between B., of the first part; D. and S. his wife, of the second part; V. and the said B., described as trustees, of the third part; and the Thames Haven Dock and Railway Company, the defendants, of the fourth part; after reciting that certain persons on behalf of the Company had agreed to buy certain premises, and that B. had agreed to sell the same, it was witnessed, that, in consideration of a certain sum already paid to B., and in consideration of the further sum of 29361. to be paid to B., and to V. and B., according to their respective rights and interests in the premises, on or before the 25th of March, 1844, B., D., S., and V. agreed to sell the premises; and that B. would, at his own expense, deduce a good title to the same; and that B., and all other necessary parties, would, on or before the said 25th of March, on payment by the Company of the said sum of 29367., at the costs and charges of the Company, execute and procure to be executed a proper conveyance for conveying the fee-simple of the premises; and that the Company thereby agreed with B. that they would, on or before the said 25th of March, and on the execution of such conveyance, pay the said sum of 29367., and until payment of the said sum would pay interest on the same to B. and his assigns; that the 25th of March had elapsed, and although B. before his bankruptcy, and the plaintiffs as his assignees after it, were willing and ready to deduce a good title, and though B. and the necessary parties were ready and willing, on payment by the defendants of the said sum of 2936l., to execute a conveyance, and would have done so, but that the defendants discharged B. and the plaintiffs from deducing such good title, and from executing such conveyance: the declaration then alleged as a breach, that the defendants did not prepare a proper conveyance, nor pay to B. or to the plaintiffs the sum of 2936l., or any part thereof:-Held, on error, (affirming the judgment of the Court of Exchequer), on special demurrer to the declaration, first, that the assignees of a bankrupt, suing on a deed made to the bankrupt, are not bound to make profert of the deed; secondly, that the breach, that the defendants had not prepared the conveyance nor paid the money, was good; for, as the deed provided that the conveyance was to be at the costs and charges of the defendants, it lay on them to prepare it; thirdly, that the execution of the conveyance and the payment of the money were concurrent acts; but that the deduction of a good title by B. was necessarily a condition precedent to the preparation of the conveyance, as the conveyance could not be properly prepared until the title was deduced; fourthly, that the averment that the defendants discharged B. and the plaintiffs from deducing title, though not alleged to have been under seal, was sufficient on general demurrer; and, lastly, that it was not necessary to point out the respective interests of B. and others in the money to be paid, as the covenant was not a covenant to pay the principal sum to B. and the others according to their respective interests, and the interest to B., but was a covenant to pay to B. both principal and interest. The Thames Haven Dock and Railway Company v. Brymer, 696 (3). In Action for Extortion. Semble, that in debt on the 29th Eliz. c. 4, against the sheriff for extortion, on executing several writs of fi. fa., it is not sufficient to allege that the defendant took for the said executions a certain sum, being a larger recompense than is by the statute limited, that is to say £-more; but the declaration should state what he ought to have taken, and what was the excess, on each writ. Berton v. Lawrence, 816 (4). In Action on Promissory Note. In an action by the manager of a Joint-stock Banking Company upon a note indorsed by the defendant to the Company, the declaration stated, that one L. made his promissory note at L. in Scotland, payable to the order of the defendants, and delivered the said note to them, and that they indorsed it to the Company; that the note was not paid, although duly presented for payment; and that it was protested for non-payment, whereof the defendant had notice.-Pleas, first, that the defendants had no notice of the said note being so protested, modo et formâ; and secondly, that the Company, between the 25th of May and the 25th of July, 1847, did not deliver at the Stamp-Office a return in pursuance of the 7 Geo. 4, c. 67.-Verification. Held, that the word "whereof," after verdict, was not confined to the allegation of protest, and that the declaration was good in arrest of judgment.-Held, also, that both the pleas were bad non obstante veredicto: the first, on the ground that no protest of an inland note, which it was to be taken to be, was necessary; and the second plea, on the ground that the due making of the return mentioned in that plea was not a condition precedent to the Company's right to recover upon the note. Bonar v. Mitchell, 415 (5). In Action for Railway Calls. that the defendant, at the time of the making of the calls thereinafter mentioned, was and still is the holder of divers shares, to wit, &c., in the Company, called &c., and before the commencement of the suit was and still is indebted to the Company in a large sum, to wit, &c., in respect of two calls upon the said shares theretofore duly made by the said Company, each of the said calls being &c.; whereby and by reason of the said sum of &c. being wholly unpaid to the said Company, an action hath accrued to the said Company by virtue of the special Acts of Parliament, viz. the Company's Acts, (incorporating the Companies Clauses Consolidation Act, 8 & 9 Vict. c. 16):-Held, on special demurrer, that the declaration was good, and that it sufficiently complied with the form given by the 8 & 9 Vict. c. 16, s. 26. The East Lancashire Railway Company v. Croxton, 287 (6). In Action for Malicious Arrest. A declaration for a malicious arrest by capias under the 1 & 2 Vict. c. 110, stated that the defendant not having any reasonable or probable cause of action against the plaintiff, to the amount for which he maliciously caused the plaintiff to be arrested, falsely, maliciously, and unjustly procured from a Judge an order for a capias, by falsely and maliciously representing to the Judge that the plaintiff was justly and truly indebted to the defendant in a certain sum, by means of a certain false affidavit then shewn and uttered by the defendant before the Judge; and thereupon maliciously caused a capias to be issued, and without any reasonable or probable cause of action caused the plaintiff to be arrested:-Held, on special demurrer, that the declaration was sufficient, and that it need not more particularly set out the false statement by which the Judge was induced to make the order, nor shew that the facts were false within the defendant's knowledge, or that he had not reasonable or probable cause for believing them true. Ross v. Norman, 359 (7). In Action by Reversioner. A declaration in case stated, that certain messuages and closes were in the occupation of the tenants of the plaintiffs, the reversion thereof belonging to them, and that the defendant so wrongfully, carelessly, negligently, and improperly, and without leaving any proper or sufficient support, worked certain mines, and dug and got the minerals out of the mines near to the said messuages and closes, that thereby the foundations of the messuages were injured, and, in consequence thereof, large portions of the buildings fell down, and the ground on which the buildings stood swagged and gave way:-Held, first, on motion in arrest of judgment, that the declaration was good, although it contained no averment that the plaintiffs had a right to have the messuages supported by the soil under which the defendant got the mines; for, as it was neither alleged nor could be inferred, that the soil in which the mines were was the defendant's, or that the defendant had all the right to get the mines which the owner of the adjoining soil had, the defendant was primâ facie a wrong doer; and therefore, as against him, the declaration disclosed a sufficient title. Secondly, that, as the defendant did work the mines without leaving sufficient support to the plaintiffs' buildings and land, they were entitled to a verdict on the plea of not guilty; for, if any circumstance justified the defendant in getting the minerals without leaving sufficient support, that should have been pleaded by way of confession and avoidance. Jeffries v. Williams, 792 II. PLEA. (1). In Abatement. To an action of debt for calls by a Railway Company, the defendant pleaded in abatement his privilege, as an attorney of the Court of Common Pleas, to be sued in that Court: to this the plaintiffs replied, that the defendant was an attorney of this Court; and the plea, after the prayer of judgment by inspection of the record, concluded by an entry of continuance by cur. adv. vult., and a day for judgment was given to the plaintiffs:-Held, that the plaintiffs were entitled to judgment, although there was no rejoinder, as it appeared that the defendant was an attorney of this Court. The South Staffordshire Railway Company v. Smith, (2). In Bar. 472 To an action on an indenture, whereby the defendant covenanted to pay R., the plaintiff's testator, 7007., the defendant, after setting out on oyer the will and probate granted by the Archbishop of Canterbury, pleaded that R. died in the parish of L., and, at the time of his death, was resident and had the indenture in that parish; that the parish of L. is a royal peculiar and out of the jurisdiction of the said Archbishop, by reason whereof the proving of the will and granting probate of the goods of R., in respect of the said debt and cause VOL. V. of action, of right belonged to the Queen and not to the Archbishop; that the will was never proved before, nor were letters testamentary of R. ever granted by, the Queen; and the letters testamentary so produced in Court, and granted by the said Archbishop, are of no effect against the defendant in respect of the said debt and cause of action; and save as aforesaid, by the granting of those letters testamentary, the plaintiff never was executor of R. On special demurrer-Held, first, that the plea was properly pleaded in bar of the action generally; secondly, that it did not amount to an argumentative plea of ne unques executor. Easton v. Carter, (3). General Issue. 8 A declaration in an action under the 9 & 10 Vict. c. 93, stated that H. was in the employ and service of the defendants, and that, in the discharge of his duty as such servant, he became a passenger in a railway carriage of the defendants, drawn by a steam-engine under the guidance of the defendants, to wit, by their servants; that the defendants were possessed of another steam-engine, which then was drawing other railway carriages, and which was under the guidance of the defendants, to wit, by their servants; yet the defendants conducted themselves so negligently in and about the guidance of the firstmentioned engine and carriage, and also in and about the guidance of the other engine and carriages, that a collision took place, and H. was thereby killed. Plea, that the collision took place solely through the negligence of the servants of the defendants; and that the engines and carriages, at the time when &c., were respectively under the guidance of the servants of the defendants, who were fit and competent persons to have the guidance of the same; and that the negligence was wholly unauthorised by the defendants, and without their leave, licence, or knowledge:-Held, on special demurrer, that the plea did not amount to the general issue. Hutchinson v. The York, Newcastle, and Berwick Railway Company, 343 (4). In Action on Bill of Exchange. 1. To an action on a bill of exchange by the indorsee against the executrix of the drawer, the defendant pleaded, that after the bill became due, and in the lifetime of the drawer, it was agreed between the plaintiff, then the holder of the bill, and the acceptor, without the authority or consent of the drawer, "that, for a good and sufficient consideration in that behalf, that is to say, that in consideration that the said J. O. (the acceptor) would, during a certain reasonable time, to wit, during the space of one month from the day and year last aforesaid, use his best endeavours to procure a new and approved negotiable bill of exchange to be taken by the plaintiff if satisfactory to him, in lieu and substitution and for and on account of the said bill, he the plaintiff would, for and during the period aforesaid, abstain from and forbear enforcing payment from J. O. of the said bill by proceedings at law or otherwise." The plea then averred, that in pursuance of the said agreement, the said J. O. did during the said period use his best endeavours, &c., and concluded by alleging, that the plaintiff gave time to the acceptor without the consent of the drawer; and that the drawer had never ratified the agreement.--Verification. Replication, de injuriâ :Held, on general demurrer, that the plea disclosed a sufficient consideration for the holder's promise to suspend the action against the acceptor, and that the surety was thereby discharged-Held, also, on special de 2. Toanaction by the indorsee against the acceptor of a bill of exchange, the defendant pleaded that the drawer indorsed the bill to the plaintiff without value or consideration, and that the plaintiff always held the same without value or consideration; and that, after the bill became due, the drawer accepted certain scrip certificates from the defendant, in full satisfaction and discharge of the bill. Replication, that the bill was indorsed for a good and sufficient consideration. Issue thereon:-Held, after verdict, that the plea was bad, and that the plaintiff was entitled to judgment non obstante veredicto. Milnes v. Dawson, 948 (5). In Action by Sheriff against Bailiff. A declaration stated, that, by indenture made between the plaintiffs a sheriff, and the defendants, after reciting that the plaintiffs had appointed the defendant T. their bailiff, the defendants covenanted that T. "should not suffer any escape, nor permit any prisoner in his custody as bailiff to go at large," without the consent of the sheriff; and that, if any action was commenced against the plaintiffs "touching or concerning any matters wherein T. should act, or assume to act, as bailiff,” T. would pay the sheriff his damages thereby incurred, and the defendants would save harmless the plaintiffs against all actions, &c., "for or by reason of any extortion or escape happening by the act or default of T." The declaration then alleged, that the plaintiffs as sheriff took one H. on a ca. sa.; and that H. escaped out of custody "by the default of the defendant T., and not otherwise, the defendant T. then be ing bailiff of the plaintiffs as such sheriff." The defendants, after setting out |