1849. MATHEWS V. MATHEWS. was held necessary, but not traversable. [Maule, J. habit of striking out pleas on the ground that they is the proper form of motion. That is a new WILDE, C. J. Not guilty merely puts in issue the wrongful act, the cutting down of the trees. MAULE, J. In case for diverting a water-course, the wrongful act complained of, is, the diversion; and that alone, and not the title, is put in issue by not guilty. I see no pretence for saying that the plea referred to is one which ought not to have been allowed under the statute of Anne. The rest of the court concurring, Rule refused. (a) 8 Dowl. P. C. 493. END OF TRINITY TERM. AN INDEX то THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. ACCOMPANIMENT. See COPYRIGHT. ACKNOWLEDGMENT. See HUSBAND AND WIFE. AFFIDAVIT. On Motion for a Suggestion - See AGENT. See BROKER. FACTOR. PRINCIPAL AND AGENT. AGREEMENT. Sufficiency of Consideration. A. and B. entered into the follow- In assumpsit by A. against B. I. At Nisi Prius, under 3 & 4 W. 4. c. 42. s. 23. 1. In assumpsit by an indorsee against the drawer of a bill of exchange, the declaration, in the usual form, alleged that the bill was duly presented to the acceptor, that it was dishonoured, and that the defendant had notice thereof. The defendant pleaded, Consideration. 1. To induce the court to set aside that the bill was not presented Return or Retainer of Part of the to the acceptor,-and that the defendant had no notice of its dishonour. At the trial, it was proved that the bill was presented, on the day it became due, at the house of the acceptor; and that the defendant, to whom it was there shewn, said that the acceptor was dead, and that he was his executor,-adding a request that it might be allowed to stand over for a few days, and he would see it paid. The judge having permitted the declaration to be amended, by alleging the death of the acceptor, the appointment of the 2. a warrant of attorney given to the memorial, and 20l. to the grantee's agent, in satisfaction of a liability to him (the agent) upon a bill of exchange drawn by the grantor upon and accepted by his father, and which was within a week of maturity: Held, that this was not such a transaction as would warrant the court in setting aside the securities eleven years after the date of the grant. Barber v. Thomas, 612. APPEARANCE. See PRACTICE, II. APRYNG, 467. ARBITRAMENT. I. Authority to refer. The attorney on the record has authority to consent to a reference on behalf of his client. Smith v. Troup, 757. II. Discretion of Arbitrator. Where a cause is referred, the arbitrator to be at liberty to state any point of law for the opinion of the court, and he declines to do so, the court will not interfere with his discretion. Shuttleworth, 105. Miller v. III. Mistake of Arbitrator, &c. By an order of reference made by consent, it was stipulated, amongst other things, that certain items in an account annexed to the order should be taken as admitted between the parties. The arbitrator having made his award, -the court refused to amend the order, and refer the matter back, upon affidavits shewing a mistake by the clerk of the plaintiff's attorney in the copying of one of the admitted items. Winn v. Nicholson, 819. IV. Demand of Money, &c., awarded. A personal demand of money payable under an award, with a view to a proceeding on a rule of court under the 1 & 2 Vict. c. 110. s. 18., may be dispensed with, where the party is evidently keeping out of the way to avoid the demand. Smith v. Troup, 757. ARGUMENTATIVE TRAVERSE. See LANDLORD AND TENANT, II. ARREST. I. On a Capias under 1 & 2 Vict. c. 110. s. 3. Affidavit.]—1. An affidavit of debt alleging several distinct and separate causes of action for separate and distinct sums, some of which are well stated, and others not, is not therefore bad altogether. Cunliffe v. Mallass, 695. 2. A capias issued under a judge's order pursuant to the 1 & 2 Vict. c. 110. s. 3., indorsed for bail for II. Taking out of Court Money de posited in Lieu of Bail. A defendant arrested on. a capias under the 1 & 2 Vict. c. 110., deposited with the sheriff the amount indorsed, with 10l. for costs, pursuant to the 43 G. 3. c. 46., and shortly afterwards embarked with his family for Australia, without putting in bail above, or leaving any attorney or agent to act for him. The court granted the plaintiff a rule nisi for taking the money out of court, subject to any deduction from the 10., upon taxation, which rule was made absolute, upon service by sticking up the rule nisi in the office. Shackel v. Johnson, 855. ARREST OF JUDGMENT. ASSIGNMENT. Of Copyright-See COPYRIGHT. 1. ASSUMPSIT. ASSUMPSIT. Sufficiency of Consideration. B. and C., members of a railway committee, being indebted to A. in a large sum, which A. sought to recover by contributions from the committee, and A. having brought an action against B., and having threatened to sue C., D. promises, that, in consideration that A. will cease to prosecute the action brought, and will forbear to sue C., he, D., will pay a certain smaller sum to A. In declaring upon this promise, it is not necessary to allege that D. was a member of the committee, or that A. had any well-founded claim against the committee, or that the actions brought and threatened related to the committee, or that the plaintiff was ready and willing to accept the smaller sum in satisfaction of the debt owing from B. and C. Tempson v. Knowles, 651. 2. A declaration, in assumpsit, stated that the plaintiffs had commenced an action against A. to recover a sum due to them from A, and another action against B., as a party liable in respect of the same debt; that, in consideration that the plaintiffs would consent to stay the proceedings in the action against A. until a given day, and would proceed to trial with the action against B. at a certain sitting, or as soon after as the prac |