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The plaintiff contracted to carry the defendant, his family, and luggage from Demerary to Flushing; and in the courfe of the voyage, within four days fail of Flushing, the hip was captured by an English hip of war, and brought into England, and the fhip and cargo libelled for prize in the Court of Admiralty, and the cargo condemned, and proceedings fill pending against the fhip; but the defendant, and his family were libe. rated, and their luggage in fact restored to their poffeffion. Held that, however the question might be as to the plaintiff's right to recover paffage-money upon an implied affumpfit pro ratâ itineris if the fhip were restored, yet pending the proceedings against the fhip as prize in the Admiralty Court no fuch action could be maintained; for non conftat, but that the fhip might be condemned and the freight decreed to the captors. Mulloy v. Backer, T. 44 G. 3. 316

PAYMENT.

See ACCORD AND SATISFACTION, No. 1.

PENAL ACTION.

The ftat. 39 G.3. c. 79. giving a penalty of 20l. for printing papers to be publifhed, without adding the printer's name and place of abode, directs that any penalty impofed by the act exceed ing 20l. may be fued for in the courts of Westminster; and any penalty not exceeding 20l. all and may be recovered before any justice of peace: but it also gives, in the fame claufe, a form of declaration for recovering zol., in the courts of Westminfler. Yet held that a common informer cannot fue for a penalty of 20%. in this court; no such power being given by the ftatute, and

there being no power at common law for a common informer to fue for any penalty: and that the form of the declaration must be read in blank, as to fum, luch form being otherwife inapplicable to a larger penalty before given: and that no fuch action lay to recover two or more penalties of 201. each. Fleming, qui tum, v. Bailey, T. 44 G. 3. 313

PLEADING.

See JOINDER IN ACTION. 1. A count upon an account ftated with. the plaintiff, executrix, &c. (not faying as executrix, &c.) cannot be joined with counts on promifes to the teftator; for it is no allegation that the promises were made to the plaintiff in her repreprefentative capacity; and ander fuch a count proof might be given of an account flated with her in her individual character. 24. Whether if it had been laid to be on an account ftated with the plaintiff herfelf, though named as executrix, &c. it could be joined, as the caufe of action would fill appear to have arilen in the time of the executrix, though the money, when recovered, would he affets? Henfball v. Roberts, in error, E. 44 G. 3.

150 2. An allegation in pleading which is fenfible and confiftent in the place where it occurs, and not repugnant to antecedent matter, cannot be rejected as furplufage, though laid under a videlicet, and however inconfiftent with an allegation fubfequent. Rex v. Stevens and Agnew, T. 44 G. 3.

And

244 3. 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. 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 fum; and then alleged a breach for non-payment of such sum.

After

Slanderous words must be understood by the Court in the fame fenfe as the reft of mankind would ordinarily underfland them. Therefore where one faid of another that "his character was infamous; that he would be disgraceful to any jociety; that thofe auho propofed him as a member of any fociety must have intended an infult to it; that he would publish his shame and infamy; that delicacy forbad him from bringing a dire charge, but it was a MALE child who complained to him:" fuch words were understood to mean a charge of unnatural practices, and fufficiently certain in themselves to be actionable, without the aid of an innuendo to that purpose, which it was admitted could not enlarge the fenfe. And held that fuch words could not be juftified by any plea naming, for the first time, the perfon from whom the defendant heard the complaint. Woolnoth v. Meadows, M. 45 G. 3.

After verdict, on non eft factum plead- 17. ed; held that upon this declaration it must be taken that B. intermarried after the fubmiffion and before the award made; in which cafe, although the plaintiff could not recover upon the breach affigned, for non-payment of the fum awarded, becaufe the marriage was a countermand to the authority of the ar kitrator; 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 arbitra. tor's authority, and that fo the plaintiff could not recover as for a breach by nonperformance of the award. Charnley v. Winftanley and his Wife. T. 44 G. 3. 266 4. The demandant in a writ of right muft allege in his count that his ancestor was feiled of right as well as that he was feifed in his demene as of fee. Dow- [ 8. land v. Slade and Wife, T. 44 G. 3.272 5. Qu. Whether if one through whom title is derived be improperly fated to be heir to her brother, who it appears by the record had a fon who furvived him, and through whom title is properly derived, fuch erroneous appellation of the filter as heir to her brother, be fatal ? ib. 6. In an action against the marshal for an efcape, it being alleged in the declaration that the prifoner was arrested on meine process, and brought before a judge at chambers by virtue of a writ of habeas corpus, and was by him thereupon committed to the cuftody of the marshal, as by the record thereof now remaining in the Court of B. R. appears, &c. fuch allegation is either impertinent and furplufage; for properly fpeaking, fuch documents are not records nor capable of becoming fo: or, confidering them as quafi of record, the allegation is fufficiently proved by the production of them from the office of the clerk of the papers of the K. B. prifon, with whom they are properly depofited. Wigley v. Jones, Marhal of the Marfbalfea, T. 1. Where goods are carried along two different lines of canal, one of which is by

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44 G. 3.

440

9.

463 A plea of nul tiel record, pleaded to an action of debt on an Irish judgment, must conclude to the country; for though, fince the Union, fuch judgment be a record, yet it is only proveable by an examined copy on oath, the veracity of which is only triable by a jury. Cellins v. Lord Viscount Mathew, M. 45 G. 3. 473

A bill of exchange payable to the order of A., is payable to A. without alleging any order made; and it is fufficient to declare that A. delivered the bill to the defendant, which he accepted, and by reafon of the premifes, and according to the custom of merchants, became liable to pay the contents to A., without alleging a re-delivery of the bill by the defendant for if a re-delivery, or fomething tantamount, to fhew the affent of the drawee to charge himself, be necessary to an acceptance, the demurrer, by admitting the acceptance, impliedly admits the re-delivery, &c. Smith'. M'Clure, M. 45 G. 3. 476

POOR-RATE.

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The plaintiff contracted to carry the defendant, his family, and luggage from Demerary to Flushing; and in the courfe of the voyage, within four days fail of Flushing, the fhip was captured by an English hip of war, and brought into England, and the fhip and cargo libelled for prize in the Court of Admiralty, and the cargo condemned, and proceedings fill pending against the fhip; but the defendant, and his family were libe rated, and their luggage in fact restored to their poffeffion. Held that, however the question might be as to the plaintiff's right to recover paffage-money upon an implied affumpfit pro ratâ itineris if the hip were restored, yet pending the proceedings against the fhip as prize in the Admiralty Court no fuch action could be maintained; for non conftat, but that the fhip might be condemned and the freight decreed to the captors. Mulloy v. Backer, T. 44 G. 3. 316

PAYMENT.

See ACCORD AND SATISFACTION, No. 1.

PENAL ACTION.

The ftat. 39 G. 3. c. 79. giving a penalty of 20l. for printing papers to be publifhed, without adding the printer's name and place of abode, directs that any penalty impofed by the act exceed· ing 20l. may be fued for in the courts of Westminster; and any penalty not exceeding 20l. all and may be recovered before any justice of peace: but it alfo gives, in the fame claufe, a form of declaration for recovering zol., in the courts of Westminfler. Yet held that a common informer cannot fue for a penalty of 20%. in this court; no fuch power being given by the ftatute, and

there being no power at common law for a common informer to fue for any penalty and that the form of the declaration must be read in blank, as to fum, fuch form being otherwife inapplicable to a larger penalty before given: and that no fuch action lay to recover two or more penalties of 20%. each. Fleming, qui tum, v. Bailey, T. 4+ G. 3. 313

PLEADING.

See JOINDER IN ACTION. 1. A count upon an account ftated with the plaintiff, executrix, &c. (not faying as executrix, &c.) cannot be joined with counts on promifes to the teftator; for it is no allegation that the promises were made to the plaintiff in her repreprefentative capacity; and under fuch a count proof might be given of an account ftated with her in her individual character. 2. Whether if it had been laid to be on an account ftated with the plaintiff herself, though named as executrix, &c. it could be joined, as the caufe of action would fill appear to have arilen in the time of the executrix, though the money, when recovered, would be affets? Henshall v. Roberts, in error, E. 44 G. 3.

150 2. An allegation in pleading which is fenfible and confiftent in the place where it occurs, and not repugnant to antecedent matter, cannot be rejected as furplufage, though laid under a videlicet, and however inconfiftent with an allegation fubfequent. Rex v. Stevens and Agnew, T. 44 G. 3.

244 3. 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 fum; and then alleged a breach for non-payment of such fum.

After

291

ly certain as in the common form. Reu bel v. Prefton, T. 44 G. 3. 5. An application to make the plaintiff, who refided abroad, give fecurity for the cotts refufed after notice of trial given; as the defendant might have applied earlier after knowledge of the fact of the plaintiff's refidence, and before fo much of the cofts were incurred. Walters v. Frythail, T. 44 G. 3. 6. Where a writ of fi. fa. expires in the vacation, the sheriff need not return ic till the first day of the enfuing term, and has the whole of that day to file it. Rex v. The Sheriff of Berks, T. 44 G 3

338

386 7. A demand of a plea indorfed on the declaration when delivered is good, and a rule to plead may be given afterwards, without any fresh demand of a plea. Maxwell v. Skerrett, M. 45 G. 3. 547 8. Bail may render without juflifying; and where the rule expires in vacation a render on the first day of the enfuing term, fedente Curiâ, is good, though notice were not given till afterwards on the fame day, and after a writ of pro cedendo had iffued to the inferior court where the cause originated. Wiggins v. Stephens, M. 45 G. 3.

PRESSING.

533

1. The Court will not, at the prayer of the mafter, grant a habeas corpus to bring up an apprentice impreffed, he being willing to enter into the king's fervice. Ex parte John Landsdown, E. 44 G. 3. 38 2. A feaman ferving in the merchant fervice is not exempt from being impressed because he is a freeholder. Rex v. Douglas, M. 45 G. 3.

PRINTERS.

See PENAL ACTION, No. 1.

PRIZE.

See FOREIGN SENTENCES, PASSAGE

MONEY.

The Prize Court of Appeals has jurifdiction to decree that one who was coagent of the captors, in whofe hands the proceeds of the prize after condemnation and fale were placed, fhould, after a decree of reftitution with intereft pronounced against the captors, pay interes on fuch proceeds while in his hands to the claimant. And B. R. will not grant a prohibition to the Prize Court to reftrain it from executing fuch decree, either on the ground that it did not appear on the proceedings below that the agent was a registered agent under the ftat. 33 G. 3. c. 66; because that Court has original jurifdiction in rem and its incidents, independent of the ftatute; nor on the ground that the Court below were restrained by the 32d claufe of the act from decreeing reltitution of more than the net proceeds of the fale, awarded upon condemnation; because interest made of fuch net proceeds in the hands of the holder are to be deemed part of the proceeds; nor on the ground that it was not alleged that intereft had in fact been made by fuch agent; becaufe that was a fact for the Court below to decide upon, and they must be prefumed to have decided on fatisfactory evidence. Willis v. The Commiffioners of Appeals in Prize Caufes, E. 44 G. 3.

22

PROHIBITION. 477 Where the Spiritual Court incidentally determines any matter of common law cognizance, fuch as the conftruction of an act of parliament, otherwife than as the common law requires, prohibition lies after fentence; although the objection do not appear upon the face of the libel, but is collected from the whole of the proceedings below. Gould v. Gapper, Clerk, T. 44 G. 3.

PRINCIPAL AND AGENT. One who covenants for himself, his heirs, &c. and under his own hand and seal, for the act of another, fhall be perfonally bound by his covenant, though he defcribe himfelf in the deed as covenanting for and on the part and behalf of fuch other perfon. Appleton v. Binks, E. 44 G. 3.

148

345

PROMO

by ftatute exempted from being rated

though the voyage happen to finish on the unexempted line, where the tolls became due and are received, yet the canal company fhall not be rated for more than fuch proportion of the tolls as accrued in refpect of the carriage along the unexempted line. And the toll arifing in respect of fo much per ton per mile is to be rated only for fo many miles as the goods were carried along the unexempted line. And where the act directs that the tolls fhould be exempt from any taxes, rates, &c. other than fuch as the land which should be ufed for the purpose of the navigation would have been subject to if the act had not been made; that goes to exempt the tolls, quà tolls, altogether from being rated in refpect of the line fo exempted, leaving the land rateable as before. Rex v. The Leeds and Liverpool Canal Company, T. 44 G. 3.

325 2. Where a corporation was feiled in fee

3.

of certain uninclofed lands, which were ftocked with the cattle of the refident burgeffes, or the widows of fuch, who alone were permitted by the burgeffes to claim fuch right, and alfo by poor parishioners, who were admitted to fuch enjoyment from charity; and fuch lands were altogether omitted out of the poor-rate; the Seffions, on appeal by one who had given notice of his objection to the parish officers, and to the corporation as the party interested under the ftat. 41 G. 3. c. 23. S. 6., having quafhed the rate, the Court confirmed that order. Rex v. The Inhabi

tants of Aberavon, M. 45 G. 3.

453 Iron mines are not rateable to the relief of the poor; and being rated conjointly with coal mines, the coal whereof was was raised by the owner of the lands for bis own ufe in fmelting the iron, the order of Seffions confirming fuch rate generally, without afcertaining the proportion at which each was rated, was quafhed. Rex v. Cunningham and Others, M. 45 G. 3.

478

Where a corporation were feifed in fee of lands, which by the custom were annually meted out under their control by

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a leet jury, according to a certain flint, to fuch refident burgeffes who chose to tock the fame; they paying 195. 4d. to each of the other burgeffes who did not flock: held that the burgeffes who fo ftocked were tenants in common of the lands fo occupied by them, and as fuch occupiers were liable to be rated for the fame. Rex v. Watson, M. 45 G. 3. 480

POOR-REMOVAL.

See SETTLEMENT BY ESTATE, No. 1. An order of justices removing "M. F., "wife of P. F., a Scotchman, who ne

I.

2.

ver gained a fettlement in England,” and their children, to the place of her latt legal fettlement; which order was ftated on the face of it to be made on examination of the husband, and with the confent of him and his wife, was holden good. Rex v. The Inhabitants of Eltham, E. G. 3. 113

44

PRACTICE.

21

Affidavits in fupport of, or in answer to a rule for fetting afide an award made a rule of Court under the ftat. 9 & 10 W. 3. c. 15. 1., there being no action previously brought, nor any caufe in court, need not be entitled. Bainbridge v. Houlton, E. 41 G. 3. The Court will not infer that a writ of error was fued out for delay because it was fued out before final judgment figned. And though it should be made returnable before final judgment, it will ftill operate as a fuperfedeas upon the judgment, which, when figned in the fame term, relates back to the first day of it; and therefore execution iffued thereon after fuch writ of error allowed and ferved was fet afide for irregularity. Somerville v. White, E. 44 G. 3. 145

3. If one of two defendants taken on a joint ca. fa. be discharged under an infolvent debtors' act, that will not operate as a discharge of the other, the difcharge of the former not being with the actual confent of the plaintiff. Nadin v. Battie and Wardle, E. 44 G. 3. 147 The Court will quafh a writ for irregularity if it have an informal return, although the day of the return be equal

4.

ly

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