to allege that B. was in due manner outlawed; without adding that he was outlawed in that suit. Saunderson v. Hudson. 3 E. R. 144. 16. An averment in the declaration that a co-defendant was by due course of law outlawed, at the suit of the plaintiff in this plea and suit, is sufficient without a prout patet per recordum, for the very record before the court verified that averment; and outlawries in the same suit need never be pleaded with a prout patet. Macmichael v.Johnson. 7 E.R.50 17. In assumpsit brought by an administrator de bonis non, the promise may be laid to have been made to the first administrator. Hirst v. Smith. 7 T. R. 182 1S. If a declaration against baron and femme, for a debt of the femme contracted before marriage, allege a promise of the femme made before the marriage to pay the debt, it is bad. Norris & Ux. v. Norfolk & al. 1 W. P. T. 212 19. It is not necessary in a declaration on a bill of exchange to aver that the maker delivered it; it is sufficient to state that he made it. Churchill v. Gardner. 7 T. R. 596 20. A. having covenanted to make a good title to B. at his expense, quære, whether it be a good averment, that A. was capable, ready, and willing, to make a good title, if B. would have prepared the conveyances. 1 H. B. 270 21. Qu.-Also whether a breach be well assigned, stating that B. did not nor would accept the title; whether it ought not to be shewn, that A. tendered a good title to him, which he refused? 1 H. B. 270 (See COVENANT III.) 22. In assumpsit by the vendor against the vendee of land for uot accepting it and paying the purchase-money, the plain tiff averred that he was seised in fee of the land, and that the defendant agreed to purchase it on having a good title, and that his title to the land was made good, perfect, and satisfactory to the defendant, and that he, the plaintiff, had been always ready and willing, and offered to convey the lands to the defendant but that the defendant did not pay the purchase-money; and, on demurrer held that such general allegation of title in the plaintiff, and that his title was made good and satisfactory to the defendant, and that the plaintiff was ready and willing, and offered to con vey to the defendant, were tantamount to performance of the agreement on his part so as to entitle him to recover for a breach of the defendant's part in not paying the purchase-money. After Martin v. Smith. 6 E. R. 555 23. A. declared in covenant against B. and her husband, for that B., before her intermarriage covenanted with A. by deed to leave certain accounts in difference between them to arbitration, and to abide and perform the award, provided it were made during their lives. And A., protesting that B. had not, before her intermarriage, performed her part of the covenant, averred that after making the indenture and the intermarriage of the defendants, the arbitrator awarded B. to pay A. a certain sum ; and then alleged a breach for non-payment of such sum. verdict, on non est factum pleaded; held, that upon this declaration it must be taken that B. intermarried after the submission and before the award made; in which case, although the plaintiff could not recover on the breach assigned for non-payment of the sum awarded, because the marriage was a countermand to the authority of the arbitrator: yet, as by the marriage itself B. had, by her own act, put it out of her power to perform the award, the covenant to abide the award was broken; and therefore judgment could not be arrested on the ground that the marriage was a revocation of the arbitrator's authority, and that so the plaintiff could not recover as for a breach by non-performance of the award.-Charnley v.Winstanley & Ux.1E.R.266 24. On a motion in arrest of judgment the Court of K. B. held, that if one of several part-owners of a chattel sue alone for a tort the defendant can only take advantage of the objection by a plea in abatement, even though the defect appear on the declaration. Addison v. Overend. 6 T. R. 766 (And see title ABATEMENT IV. 8.) 25. The reversion of lands, demised to the defendant for years, is conveyed to A. and B., and the heirs of B. in trust for A. and his heirs: A. declares singly on a covenant contained in the lease, and after setting out the above title, without averring the death of B. states himself to be "thereby seized of the reversion in his demesue as of fee." Upon general demurrer, to the declaration, the Court of C. P. held this to be bad, and that the defendant 30. In slander the plaintiff averred tha need not plead it in abatement. Scott v. Godwin. 1 B. & P. 67 26. Declaration on a policy on ship and goods at and from London to Amsterdam, "beginning the adventure on the goods from the loading thereof ou board the said ship;" with a memorandum that the insurance was on 15 hogsheads of tobacco, marked B. No. 51 and 65. special demurrer, first because the goods were not averred to have been put on board at London; secondly, because they were not alleged to have been marked or numbered as in the memorandum but only thus, "15 hogsheads the goods in the said policy mentioned;" thirdly, because the plaintiff was stated to have been interested until and at the time of the loss, without shewing that he was interested at the time of the policy being made; fourthly, because the allegation of the loss was without a venue Semb. that the declaration was bad. De Symonds v. Shedden. 2 B. & P. 153 27. Policy on indigo and bale goods; the declaration alleged that "divers goods, &c. of 3,000l. value were put on board," and afterwards averred that "the said writing or policy of assurance was made on the said goods," &c. Held good on special demurrer. De Symons v. Johnston. 2 N. R. 77 28. In a declaration for slander the plaintiff stated that he was a jobber or dealer in the funds, and as such jobber or dealer had been accustomed lawfully to contract, and had from time to time lawfully contracted, &c. that the defendant said of him as such jobber or dealer, he is a lame duck,” meaning that he had not fulfilled his contracts in respect of the said stocks or funds, in consequence of which divers persons refused to fulfil their contracts with him (specifying the contracts,) and he was prevented from fulfilling his contracts with other persons; held that it did not sufficiently appear either that the words were spoken of lawful contracts or that the plaintiff was a lawful jobber or dealer in the funds; and that the declaration was therefore bad. Morris v. Langdale. 2 B. & P. 284 29. Qu. Whether, under such circumstances it can be stated as special damage, that divers persons refused to fulfil their contracts with the plaintiff, since he might recover a compensation by action ifthe contracts were lawful? ib. he had in due manner put in his answer on oath to a bill filed against him in the Court of Exchequer by the defendant, (but did not proceed to aver any colloquium respecting that answer, with reference to which the words were spoken); and then alleged that the defendant said of him, that he was forsworn, inuendo, that the plaintiff had perjured himself in what he had sworn in his aforesaid answer to the bill so filed against him: held that that this innuendo could not, without the aid of such a colloquium, enlarge the sense of the words, by referring them to the answer averred in the prefatory part of the declaration to have been put in, Hawkes v. Hawkes. 8 E. R. 427 31. The first count of a declaration stated that the defendant heretofore, to wit, on such a day, drew a bill of exchange bearing date the day and year aforesaid, payable two months after date. The second count stated that after wards, to wit, on the day and year aforesaid, the defendant drew a certain uther bill of exchange, payable two months after date; without mentioning any express date in either count. Held that both counts were good. 32. Hague v. French. 3 B. &. P. 173 If a declaration alleges a bill to be accepted payable at the house of certain persons at a particular place, it must also aver that the bill was presented for payment at that place, and not to those persons generally. Ambrose v. Ilopwood. 2 W. P. T. 61 33. In an action against the sheriff for an escape on mesne process, it is sufficient to aver that the sheriff had not the body at the return of the writ, without negativing the appearance of the party, or his putting in bail. Stovin v. Perrin. B. & P. 561 34. If the writ issue from C. B. and the declaration for an escape aver that the defendant had not the body "before our said Lord the King" on the return day, it is bad on special demurrer. id. ib. 35. Trespass for assault and false impri sonment may be laid diversus diebus et vicibus. Burgess v. Freelove.2B.&P.425 36. But a declaration charging that the defendant on such a day, and on divers other days and times, &c. made an assault on the plaintiff, was held Bad on special demurrer; as one assault cannot be laid on different days. English v. Purser. 6 È. R. $95 87. Declaration against the defendant for driving his cart against the plaintiff's horse with force and violence, alleging it to have been done " by and through the mere negligence, inattention, and want of proper care," of the defendant. On demurrer to this declaration as not being in trespass, held that this declaration in case was good. Rogers v. Imbleton. 2 N. R. 117. 38. If a contract of freight and demurrage be entered into by deed, the plaintiff cannot declare in debt generally, and give the deed in evidence; but ought to declare upon the deed. Atty v. Parish. N. R. 104 39. In an action on the case in tort for a breach of a warranty of goods, the scienter need not be charged, nor, if charged, need it be proved. not pass the title to the land, and as a licence was revocable, and revoked. Fentiman v. Smith. 4 E. R. 107 43. A declaration, entitled generally of the term, relates to the first day of the term; and the promises and breach being laid on the first day of the tern; may be presumed to have been made before the delivery of the declaration; because by a reference to the ancient practice of declaring ore tenus, the declaration cannot be supposed to have been delivered till the sitting of the court on that day. Pugh v. Robinson. 1 T. R. 116 44. Leave given to amend the declaration by entitling it of the day on which it was actually delivered, instead of the term generally, in order to accord witli an averment therein, that other defendants named in the writ were then outlawed. Coutanche v. Le Ruez. 1 E. R. 133 45. A declaration must be entitled of the term when the writ is returnable, though in certain cases according to the practice of the court it need not actually be filed till the next term; so that in these latter cases the plaintiff cannot recover any demand arising after the term when the writ is returnable, though before the declaration is actually filed. 46. Smith v. Muller. 3 T. R. 624 Upon breach of a contract for the purchase of 100 bags of wheat, 40 or 50 of which were to be delivered on one market day, and the remainder on the next market day, the plaintiff cannot declare as upon an absolute contract for the delivery of the 40 bags on the first day, &c. though forty bags were then in fact delivered: but the contract must be stated in the alternative, according to the original terms of it. Penny v. Porter. 2 E. R. 2 Williamson v. Allison. 2 E. R. 446 40. It is not necessary to give a local description to the nuisance in an action on the case for diverting the water of a navigation; and therefore if it be doubtful whether the place where such navigation is stated to lie, be laid in the declaration as a venue or a local description, it will be referred merely to venue, and need not be proved to be at such place; but it is sufficient if it be at any other place within the 'county. Mersey & Irwell Navigation v. Douglas. 2 E. R. 497 41. If in an action on the case for a nuisance in erecting a weir, it be described in the declaration to be at H. and be proved to be at a lower part of the same water called T., the variance is fatal. Shaw v. Wingley, York Sum. Ass. 1790, cor. Wilson J. (cited)ib.500 42. Where one declared in case for obstructing a water-course, upon his possession of a mill with the appurtenances 47. The same where the contract was to and that by reason of such his possession he had a right to the use of water running in a certain tunnel to the mill; such allegation is not supported by proof that the tunnel was made on the defendant's land, which he had agreed to let the plaintiff have for this purpose for a certain consideration, but of which no conveyance was made by the defendant to the plaintiff; and he had since refused assent: because the plaintiff had not the water by reason of the possession of the mill, &c. but by parol licence or contract, which could deliver goods within 14 days or as soon as a certain vessel arrived. Shipham v. Saunders, E. 1783. (cited.) ib. 48. In an action against a tenant upon promises that he would occupy the farm in a good and husbandlike manner according to the custom of the country ; an allegation, that he had treated the estate contrary to good husbandry and the custom of the country, is proved by shewing that he had treated it contrary to the prevalent course of good husbandry in that neighbourhood; as by tilling hay his farm at once, when no other farmer tilled more than a third;|52. In debt, by bill, the declaration is though many tilled only a fourth. And it is not necessary to shew any precise definite custom or usage in respect to the quantity tilled. Legh v. Hewett. 4 E. R. 154 49. The plaintiff, having declared upon an agreement to deliver soil or breeze, with a count for money had and received, proved that the defendant having agreed to deliver soil, he, the plaintiff, paid 21. 5s. for earnest, but that the defendant refused to deliver the soil: held, that he could not recover damages for the non-delivery on the first count, on account of the variance; nor the 21. 58. upon the second, because the agreement was still in force. Cooke v. Munstone. 1 N. R. 351 50. In declaring upon a contract, not under seal, consisting of several distinct parts and collateral provisions, it is sufficient to state so much of it as contains the entire consideration for the act, and the entire act or duty which is to be done (including the time, manner, and other circumstances of its performance,) in virtue of such consideration, the breach of which act or duty is complained of; but such part of the contract, which respects only the liquidation of damages after a right to them has accrued by a breach of the contract, is not necessary to be set forth in the declaration, but is only matter of evidence to be given to the jury in reduction of damages. Therefore assumpsit may be maintained in the common form of declaring against a carrier for the loss of goods, which were of above 57. value, and were not in fact paid for accordingly, although it were part of the contract proved by general notice fixed up in the carrier's of fice, and presumed to be known and assented to by the plaintiff, that the carrier would not be accountable for more than 51. for goods, unless entered as such, and paid for accordingly. Clarke v. Gray. 6 E. R. 564 51. An averment that the defendant was indebted on a bill of exchange, and that the plaintiff having lost the bill had at his request given him a bond acknowledging payment, and conditioned to indemnify him against the bill, states a good consideration for a promise by the defendant to pay the contents of the bill. Williamson v. Clements. 1 W.P. T. 523 good, though the sums demanded in the several counts amount altogether to more than the sum at first demanded in the queritur; for that is superfluous and may be rejected. Lord v. Houstoun. 11 E. R. 62 53. Where a plaintiff in scire facias demanded execution for a certain sum recovered by judgment of B. R. for damages and costs, with a prout patet per recordum, and also a certain other sum adjudged to him in the Exchequer Chamber for his damages and costs of a writ of error, without a prout patet, &c.: held that the demand being divisible, and no objection lying to the sum first demanded, a demurrer to the whole declaration was bad, and the plaintiff was entitled to judgment generally on such demurrer; the objection to the latter sum demanded being merely formal, and not available but on special demurrer. 54. Powdick v. Lyon. 11 E. R. 565 The offence prohibited by 3 G. 3. c. 15. § 1., is the voting as a freeman, not having been 12 months adinitted, and not having any other right of voting than that which the character of a freeman confers. And the offence must be so averred in the declaration. Daman v. Marrett. 1 W. P. T. 128 III. Departure, and Discontinuance. 1. Replevin for taking the plaintiff's goods and chattels, to wit, a lime kiln; avowry for rent; plea in bar that the lime kiln was affixed to the freehold : the court held the plea in bar bad, because it was a departure from the declaration, which had treated the lime-kiln as a chattel. Niblet v. Smith. 4 T. R. 504 2. To debt on an annuity-bond the defendant pleaded no such memorial as the statute requires, to which plaintiff replied that there was a memorial which contained the names of the parties, &c. and the consideration for which the annuity was granted; the defendant rejoined that the consideration was untruly alleged in the memorial to have been paid to both obligors, for that one of them did not receive any part of it: the rejoinder was held bad; first, because it was a departure from the plea: secondly, because the fact alleged respecting the memorial did not contradict the replication, for the consideration might have been paid to the other obligor pn account of himself and the coobligor, or to a stranger for them both Praed v. The Duchess of Cumberland. 4 T. R. 585 Affirmed in Cam. Scac. 2 H. B. 280 3. If the lord of a manor set up a custom to have the best live or dead chattel as an heriot; qu. if the tenant can modify that custom by pleading another that the homage shall assess a compensation in lieu of the heriot? 1 B. & P. 282 4. Debt on bond, which was conditioned to perform an award; plea, no award; replication, setting out an award; rejoinder, stating the whole award (in which were recited the bouds of sub mission, whereby it appeared that the award was not warranted by the submission); and then demurring. Held that the rejoinder was not inconsistent with, nor a departure from, the plea. Fisher v. Pimbley. 11 E. R. 188 IV. Double Plea; Duplicity in Pleading. 1. The stat. 4 Ann. c. 16., which allows double pleading, does not extend to penal actions. Heyrick v. Foster. 4 T. R. 701 2. To assumpsit on a bill of exchange the Court of C. P. will not allow a defendant to plead the general issue; and that the bill was given on a stockjobbing transaction, contrary to 7 G 2. c. S. Shaw v. Everett. 1 B. & P. 222 3. But to debt on bond they will permit the defendant to plead non est factum; and usury. Lechmere v. Rice. 2 B. & P. 12 4. That court only continues to exercise an authority over applications for pleading several matters (which had originally been the practice of K. B. also) in order to prevent an oppressive use being made of the liberty given by the statute. ib. 5. They will not allow non assumpsit; and alien enemy, to be pleaded toge. ther. Thyatt v. Young. 2 B& P.72 6. To trespass and false imprisonment, a plea of alien enemy not allowed by K. B. to be pleaded, together with a special justification inconsistent therewith, and the general issue. Truckenbrodt v. Payne. 12 E. R. 206) 7. A plea of tender to one count and a plea of alien enemy to another cannot be pleaded together. Shombeck v. Dela Cour. 10 E. R. 326 3. To debt on an escape, defendant pleaded a negligent escape, and volun tary return, since which the prisoner had been safely kept; plaintiff in his replication admitted the negligent escape and voluntary return, but alleged that the prisoner had not been safely kept since that time, having again escaped, which was a different escape from that mentioned in the plea, and the same for which the action was brought; defendant in his rejoinder traversed the allegation that the prisour had not been safely kept, and then pleaded to the latter part of the replication as to a new assignment, a negligent escape, a voluntary return, and safe keeping since, in the same manner as in the plea. This latter part of the rejoinder the court refused to strike out on motion, but held it bad on special demurrer. ་་ Griffin v. Eyles. 1 B. & P. 413 9. The stat. 32 G. 3. c. 58 § 1., enabling defendants in quo warranto to plead double, is, as well as the stat. 9 Ann c. 20, confined to corporate officers. R. v. Richardson. 9 E R 469 10. In an action on a bond given in the East Indies, where the subscribing witness resided, the defendant (after great delays caused by him), under leave to plead several matters, pleaded non est factum, solvit ad diem, and solvit post diem: The court, adverting to former delays of the defendant and to the probable delay by sending to the East Indies for the deposition of the subscribing witness, and on affidavit that part payment had been made on the bond, recently before the action, rescinded the rule for pleading double, in order to make the defendant elect to stand either on the plea of non est factum, or on the other pleas. Rama Chitty v. Hume. 13 E. R. 255 1. Whether not guilty may be pleaded to an action of debt on a penal statute? Coppin q. t. v. Carter. 1 T. R. 462 |