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1828.

pursuance of the said act of the 15th year of the said late

King George the Sd) to one John Armitage, for securing The King

the sum of 300l. and interest, to which said deed-poll the . Suidwełł. said John Drewry is entitled, as the sole surviving executor

of the said John Armitage, deceased.

0.

Gurney and Platt now shewed cause. No application for payment having been made for the last twenty-six years, the debt must be presumed to have been paid. If it has not, the act points out the remedy by action against the clerk; and the Court will not grant a mandamus where the party has another specific remedy (a). The application for a mandamus ought to be made within a reasonable time. In Rex v. The Justices of Lancashire (6) the Court refused a mandamus to make a rate to reimburse inhabitants, on whom a fine had been levied for non-repair of a highway, after an interval of eight years. This is not a deed-poll, as it is not under seal. If this had been the case of a private individual, he would have been barred after sir years. It is the duty of the commissioners, who are trustees for the public, to take the opinion of the Court.

Coleridge, contrà, was stopped by the Court.

Per CURIAM.--The clerk cannot be sued except where the commissioners are liable, and their liability must depend upon the form of the instrument. Upon this instrument no party could be sued. Where an action is brought, and you plead payment, you may in general rely upon the period which has elapsed. So here, if there is any mode of compelling payment, you may return payment to the

(a) Rer v. Bishop of Chester, 1 T. R. 396; Rex v. Mayor of Colchester, 2 T.R. 259; Rex v. Arch. bishop of Canterbury, 8 East, 213; Rex v. Commissioners of Dean, 2

M. & S. 80; Com. Dig. Mandamus,
A. B.; Selw. N. P. 7th ed. 1080,

(b) 12 East, 366; and see Rer v. Stainforth and Keadby Canal Company, 1 M. & S. 32.

1828.

mandamus. But this is money lent to a public body. If it had been paid, their books would contain some entry to that effect: the books of the old commissioners would be handed over to the new; and the last act contains an express reservation of all powers and liabilities which existed under the former acts.

The KING

v. St. Paul, SHADWELL.

Rule absolute.

but

LOVELAND v. KNIGHT. THIS was an action of debt, upon a bond executed by the Where the defendant, as the surety of A. B., a collector of assessed condition of a

bond describes taxes, for the due payment over by the latter of the taxes a public act of collected by him. Plea, non est factum, At the trial parliament as before Lord Tenterden, C. J., at the last London Sittings, ing“ duties of the only question was whether the title of the act of parlia- taxes,” which ment, authorizing the collection of the taxes in question,

is the true title,

upon oyer was correctly recited on the record, in which the condition the condition of the bond was set out upon oyer; the condition, as it describing itas appeared upon oyer, stating that the act was one respecting an act respect“duties on assessed taxes," whereas, according to the con- assessed

ing “duties on dition of the bond when produced in evidence under the taxes,” the va

riance is not issue of non est factum, the title of the act was, “ duties of fatal. assessed taxes.” It was objected that this was a fatal variance; but the Lord Chief Justice overruled the objection, and the plaintiff had a verdict.

is set out as

F. Pollock now moved for a new trial, and renewed the objection. It is a rule of pleading that where a document is set out upon oyer, it must be correctly set out, even to the very letter. In such cases a variance in appearance, though none in sense, is fatal. In Waugh v. Bussell (a), the defendant in an action of debt on bond prayed oyer of the condition, which was for the payment of “one hundred

(a) 1 Marsh. 214; 3 Taunt, 707.

1828.

LoveLAND

0. KNIGHT.

pounds,” and pleaded non est factum; the word hundred was omitted in one place in the condition; and it was held that this was such a variance between the oyer and the condition as precluded the plaintiff from recovering. [Bayley, J. This is a public act; are we not bound to take judicial notice of the way in which it is worded? Is vot the Court bound to take notice that there is such an act containing the word of, and that there is no such act containing the word on? Lord Tenterden, C. J. I have always understood the rule to be, that where the erroneous expression does not alter the meaning of the sentence, but leaves it equally intelligible, it is no variance. Is not that the case here?] By setting out the bond on oyer, the plaintiff professes to set it out in the very words and letters, and is bound to do so. [Bayley, J. It has been held that the omission of a word where the context supplies it, constitutes no fatal variance.] By the statute 28 Eliz. C. 4, sheriffs are liable to a penalty for taking more than a certain sum on executions "upon the body, lands, goods, or chattels ;” and where a declaration on that statute, in reciting it, stated the words as, “body, lands, goods, and chattels,” the variance was held to be fatal. King v. Marsack (a). In Boyce v. Whitaker (6), Lord Mansfield said that where a party unnecessarily set out an act of parliament, he would hold him to half a letter; and in Mills v. Wilkins (c), Lord Holt, speaking of an act of parliament, said, the title is not a material part, neither is it necessary to set it forth, but yet it is a name given by the makers, and therefore you must describe it accordingly, if you will describe it by its title.

Lord TenTERDEN, C. J.-I was of opinion at the trial, and I am of the same opinion now, that the meaning of the sentence in this case is not altered or obscured by the mistake that has been fallen into; and therefore, that there

(a) 6 T.R. 771.

(6) Doug. 94.

(c) 2 Salk. 609.

1828.

LOVELAND

0. Knight.

is no variance. The rule of pleading is, that you must not vary the sense of that which you profess to set out. The case cited of Waugh v. Bussell, is very different from the present. There the expression one pounds, was substituted for that of one hundred pounds, which was a material alteration of the sense and meaning of the passage. Here, there is no such alteration; for the expressions, “duties on assessed taxes," and " duties of assessed taxes,” both convey precisely one and the same meaning, and therefore I think there is no variance, and no reason for granting the rule.

BAYLEY, J.-I am of the same opinion. I take it that in deciding the question, whether there is a fatal variance or not, you are not merely to consider whether there is something stated which is apparently wrong, but you are to look at the sentence altogether, and at the context, to see whether you can collect from the whole the sense intended to be expressed; and that if you can do so, it is not a fatal variance. In King v. Pippett (a), where the declaration set out the precept from the sheriff to the portreeve of a borough, the improper insertion of the word if, was held no variance, for it might be rejected as surplusage. So there are cases in which the improper omission of a word has been held no variance, because, looking at the sentence altogether, it was easy to ascertain the word intended to have been inserted, and the meaning intended to be expressed. The act of parliament in this case is a public act, the language and meaning of which we are bound to know; we cannot doubt that it was intended to describe the act as one regarding the duties of assessed taxes, and therefore we are bound to read it so.

The other Judges concurred,

Rule refused.

(a) 1 T. R. 235; and see Draper v. Garratt, 3 D. & R. 226; 2 B. & C.2.

1828.

Doe, on the demise of BYWATER v. BRANDLING and

others.

By a local act This was an action of ejectment, brought to recover cerof parliament, tain messuages, lands and premises, situate in the parishes made in pur.. of Leeds and Hunslet, in the West Riding of the county suance thereof, A. grants to

of York. At the trial before Bayley, J., at the Yorkshire B. Jands, with Spring Assizes, 1826, a verdict was found for the plaintiff, waggon ways subject to the opinion of this Court, on the following case: for the carriage

Elizabeth Bywater, being seised in fee of the premises of coals, for the term of Go in question, by indenture bearing date 1st August, 1758, years, and such further term as

made between the said Elizabeth Bywater of the one part, B., his execu- and one Charles Brandling, since deceased, of the other tors, &c., should work part, in consideration of the yearly rents and covenants certain coal

thereinafter reserved and contained on the part and behalf mines; proviso (both in of the said Charles Brandling, bis executors, administrators the act and the and assigns, to be paid and performed, granted, demised, B. cease to leased, set and to farm let unto the said Charles Brandling, work the mines, or fail his executors, administrators, and assigns, two closes or in any one year parcels of land in the said indeuture mentioned and deto carry a certain quantity scribed, and which are the premises sought to be recovered of coals to a in this action, and also a certain stable or helm therein depository called C.,

mentioned, and also full and free liberty, power and authoA. may re

rity for him the said Charles Brundling, his executors, enter. By a subsequent act administrators and assigns to make, lay and place such the quantity to be carried waggon way or road, waggon ways or roads, as were then is increased; commonly made use of for and about the coal mines and proviso, that if B. do not

coal works in the counties of Durham and Northumberyearly carry land, and such branches from the same, in, upon, over, and such increased quantity to C., through the closes, or parcels of ground thereby leased, or other place

any part or parts thereof, as should be proper and necessary near thereto, for the carriage and conveyance of coals from the coal to be used as a depository

mines or coal works of bim the said Charles Brandling, for coals instead thereof," A. may re-enter. By the last proviso, the first is virtually repealed; and B. carrying the increased quantity to a depository near to C., is excused from carrying coals to C.

or to some

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