ORDER (OF REMOVAL). ORDER (FOR PROTECTION). ORDER (OF REMOVAL). See QUARTER SESSIONS, 1. 1. An order of removal was drawn up in the following form: "Borough of King's Lynn, in the county of Norfolk; (in the margin) Upon complaint of the churchwardens and overseers of the poor of the parish of St. Margaret, in the borough of King's Lynn aforesaid unto us, whose hands and seals are hereunto set, two of her Majesty's justices of the peace in and for the said borough," &c., that S. W. and her six children, inhabitants of the said parish, "are now actually chargeable to the said parish," "we the said justices, upon due proof made thereof, as well upon the examination of the said S. W. of S. H. and of J. H., upon oath, as otherwise, and likewise upon due consideration had of the premises, do adjudge the same to be true; and we do likewise adjudge that the lawful settlement of them the said S. W. and her said children is in," &c. The order concluded in the usual form "Given," &c., without stating where it was made. Held, that it sufficiently appeared upon the face of this order: First, that the justices were acting within their jurisdiction. Secondly, that the evidence upon which the justices had proceeded was legal evidence, and that the words "as otherwise," would not be intended to mean evidence not upon oath. Thirdly, that the adjudication of the settlement was made at the same time and place as, and upon, the hearing of the evidence. Regina v. The Recorder of King's Lynn, 725 2. Where the name of one of the justices signing an order of removal was so illegibly written in the copy of the order sent to the appellant parish, (although legible enough in the copy ORDER (OF SESSIONS). 861 of the examinations,) that the parties gave their notice of appeal as against the order of A. B. and Jonah Walter, instead of A. B. and Josiah Wilson, (the real name of the justice) and the appeal was entered at the sessions, as against the order of A. B. and John Waller; the sessions refused to entertain the appeal, on the ground of the misdescription: this Court granted a mandamus, compelling them to enter continuances and hear the appeal. Regina v. The Justices of Middlesex. (St. Pancras v. St. John, Hackney). 745 ORDER (SERVICE OF). See SERVICE of Order. 1. An order in bastardy under the 7 & 8 Vict. c. 101, s. 3, stated that application had been made and summons granted by a justice of the peace "usually acting in" the division in which the mother resided: Held, that under the 8 Vict. c. 10, the word "in" was to be taken to be synonymous with the word "for," contained in the forms given in the schedule to that act; and that, consequently, the order shewed jurisdiction on the part of the magistrate granting the summons. Regina v. Milner, Clerk, and Another, 128 2. An order in bastardy omitted to state on the face of it that the appliIcation for it had been made within forty days from the service of the summons upon the putative father (7 & 8 Vict. c. 101, s. 4:) Held bad, as not shewing jurisdiction on the part of the justices making it. Regina v. Thomas Bailey Rose and Philip B. Broade, Esqrs., 359 3. A notice to justices under the 13 Geo. 2, c. 18, s. 5, of an intention to move for a certiorari "in six days from the giving of this notice, or as soon after as counsel can be heard," is sufficient, ть. OUTLAWRY. See DISTRINGAS, 3, 4. OVERSEER. See NOTICE OF APPEAL, 3, 4. OYER. See ERROR, 1. PARTICULARS. See APOTHECARY. In an action by a surveyor, it is sufficient to state in the bill of particulars that the plaintiff claims a certain sum in respect of a survey between certain places, including travelling expenses and assistance, without specifying the number of fields surveyed, the time he was engaged, and the number of persons employed, or distinguishing what is charged for his own time and labour, from the charge for that of others. But such particular must specify the sums paid for the defendants' use. Rennie and Another v. Beresford and Others, 464 PARTNER. See PLEA, 20. PAUPER. 1. A plaintiff suing in formâ pauperis, and conducting himself vexatiously, may be called upon by the same rule to shew cause why he should not pay the costs of the day for not proceeding to trial, as well as be dispaupered. Bedwell v. Coulstring, 767 2. The Court compelled a pauper to pay the costs of the day for not proceeding to trial pursuant to notice, the cause of his default being a mistake of his attorney's clerk in preparing the jury process. Hodges v. Toplis and Another, 786 1. To an action on the case by a reversioner for an injury to his reversionary interest, the defendant pleaded that he was the occupier of the adjoining house and wall, and that whilst he was repairing his dwelling-house, by accident and against his will, and without any default on his part, it fell down; and in falling, fell upon the adjoining wall and close of the plaintiff, and threw the plaintiff's wall down; that thereupon the defendant, within a reasonable time, rebuilt the wall at his own expense, and in so doing committed the grievances mentioned in the declaration, quæ est eadem: Held, bad on special demurrer, for not shewing that the defendant had the leave and license of the tenant or of some party having authority, to allow him to come on the land. Taylor v. Stendall, 161 2. To assumpsit for goods sold and delivered, the defendants pleaded, that at the request and by the direction of the plaintiff, they delivered the goods to one K., on a day named, and that 66 it was then," to wit, on the day and year aforesaid, in consideration thereof agreed by and between the plaintiff and the defendants, that the plaintiff should accept such delivery to K. in full satisfaction and discharge, &c., and that the plaintiff did "then" accept such delivery in full satisfaction and discharge. Held, on special demurrer, that the plea was bad, for not shewing with sufficient certainty that the agreement by the plaintiff to accept the delivery to K. in full satisfaction, &c., was antecedent to, or at least contemporaneous with, the delivery to K. Stead v. Poyer and Another, 209 3. To covenant for rent, the defendant pleaded as to 21. Os. 10d. parcel, &c., that before any part of the rent became due, to wit, on, &c., a large sum of money, to wit, 21. Os. 10d., "being at and after the rate of 7d. for every 20s. of the annual value, to wit, 70%., of the said messuage," &c., was duly, and according to the form of the statute in such case made and assessed on the said messuage, &c., in respect of the property thereof, for the year then next ensuing ;" and that the defendant then being the occupier and tenant thereof, paid that sum to the collector; and that the defendant had never since made any payment to the plaintiff on account of the said rent: Held, on general demurrer, that this was a good plea under the Income Tax Act, 5 & 6 Vict. c. 35. The defendant also pleaded as to 52l. Os. 10d. parcel, &c., that the plaintiff himself held under a lease, with a clause of re-entry in case of breach; that he committed a breach; that "by reason and in consequence of the said forfeiture," John Doe brought his action on the demise of the superior landlord, the date of which was laid on the day of the forfeiture, and before the rent accrued due; that judgment was recovered, and notice thereof given to the de fendant, who was compelled to pay the rent to the superior landlord : Held, on special demurrer, that the plea was good; it not being alleged as a ground of demurrer that it was not shewn that the ejectment proceeded on the ground of the forfeiture. Quære, even if it had been alleged, would not the plea have been good? Franklin v. Carter, 213 4. A declaration alleged that T. made his bill of exchange, and thereby required G. and Co. to pay to the order of the defendant 200l.; that the defendant indorsed the bill to the plaintiff; and that G. and Co. did not pay it, although it was duly presented to them for payment. Plea, that after the indorsement to the plaintiff, and before it was due, he indorsed it to some person unknown, who presented it to G. and Co. for acceptance; that G. and Co. refused to accept it; and that the defendant had no notice of non-acceptance. On motion to enter judgment for the plaintiff, non obstante veredicto: Held, that the plea was good. Semble, that it would have been a departure to have replied that the person unknown indorsed the bill to the plaintiff for value, and that the plaintiff had no knowledge of the dishonour by non-acceptance. Bartlett v. Benson, 274 5. To debt on bond, the defendant, after craving oyer of the condition (which was for the performance of the covenants of an indenture) pleaded that no cause of action, by reason of any breach of the condition of the bond, or of the covenants of the indenture, accrued at any time within twenty years next before the commencement of the suit: Held, bad on special demurrer. Semble, that the plea should have set out the indenture, and averred performance of all the covenants which were performed within twenty years, and admitted breaches of all those 6. The first count of a declaration stated, that whereas the defendant had become and was tenant to the plaintiff of certain rooms, on the terms that the defendant should not allow any nails to be driven into the wall, and that if any damage should arise from his so doing, he should pay the costs of repairing the same on his vacating the premises; and that in consideration thereof, the defendant promised the plaintiff not to allow any nails to be driven as aforesaid, and that if any damage should arise therefrom, he would pay the costs of repairs: Breach, that defendant pulled down bells, and drove nails into the walls, and that the costs of repairing the injuries amounted to 150%. ; yet the defendant had not paid that sum to the plaintiff. Plea, that after the making of the promise so far as relates to the driving of the nails, the defendant did pay the costs of repairing the injuries occasioned thereby: Held, on special demurrer, that the plea was bad, for professing to answer the whole count, and answering but a part; and that the breach in the first count properly alleged non-payment of the costs to the plaintiff; and that the count was not bad for omitting to state that the defendant became tenant at the request of the plaintiff. The second count of the declaration alleged, that in consideration that the plaintiff would permit a brass plate to be fixed on the outer door of the premises, the defendant promised to cause a new door to be put up at the expiration of the tenancy breach, that he did not do so. Plea to the second count, that before any cause of action accrued, the defendant offered to cause a new door to be affixed; but that the plaintiff refused to allow 8. Assumpsit for not delivering within a reasonable time certain railway shares. The plaintiffs averred that they had been "always from the said time of making the said agreement and promise, ready and willing to accept the transfer of the said interest and shares." The defendant pleaded "that the plaintiffs were not always from the time of making of the said agreement and promise in the declaration mentioned, ready and willing to accept the transfer of the said interest and shares :" Held, that the plea was too large a traverse, and, therefore, bad. Tempest and Another v. Kilner, 407 9. A plea of discharge under 5 & 6 Vict. c. 116, s. 10, ought to shew that the final order was for "distribution" as well as protection. Erle, J., dissentiente. But semble, that if it disclosed a compliance with the provisions of sect. 4, it would be sufficient. The plea should conclude with a verification. Gillan v. Deare, 412 10. A declaration alleged, that in consideration that the plaintiff promised to marry the defendant, the defendant promised to marry the plaintiff; that the plaintiff has always been ready and willing to marry him; yet the defendant, not regarding his promise, married another woman. Plea, that defendant was not requested by plaintiff to marry her: Held, on special demurrer, that the plea was bad, and the declaration good, although the latter contained no averment that a reasonable time had elapsed. Caines v. Smith, 462 11. To an action by indorsee against acceptor of a bill of exchange drawn by W. The defendants pleaded, fourthly, that after they accepted the bill, and before it was indorsed to the plaintiff, W. waived the acceptance. Fifthly, a similar plea, alleging that the bill was indorsed to the plaintiff after it was due. Seventhly, that the bill was drawn upon the defendants as the directors of a certain company established by act of Parliament, and that they accepted it as such directors for a debt contracted by the company. Eighthly, a similar plea, denying consideration. Ninthly, a similar plea, alleging that the bill was indorsed after it was due. Tenthly, that after the bill was accepted and delivered to W., he indorsed it to H. (one of the defendants) for consideration, and that H. delivered the bill to the plaintiff, who had notice. Eleventhly, a similar plea, denying consideration. Twelfthly, a similar plea, alleging that the bill was indorsed by H. to the plaintiff after it became due. Held, on special demurrer, that the fourth and fifth pleas were bad, for not alleging that W. was the holder of the bill at the time he waived the acceptance. Secondly, that the seventh, eighth, and ninth pleas were also bad, as the act of Parliament gave the directors of the company no power to accept bills. Thirdly, that the tenth, eleventh, and twelfth pleas were bad as an argumentative denial of the indorsement of the bill to the plaintiff. Steele v. Benham, Layton, and Harmer, 506 12. The Building Act, 14 Geo. 3, c. 78, s. 100, enacts, that every action VOL. III. for anything done in pursuance of that act, where the cause of action arises out of the city of London, shall be laid and tried in Middlesex that the defendants may plead the general issue, and give the special matter in evidence; and if the action be laid in any other county or place than aforesaid, the jury shall find for the defendants. The 5 & 6 Vict. c. 97, s. 3, repeals so much of any act "of a local or personal nature" as permits parties to plead the general issue, and give the special matter in evidence. In trespass for placing bricks, &c., on a wall of the plaintiff, to which the defendant pleaded not guilty by statute: Held, that the 14 Geo. 3, c. 78, was an act" of a local and personal nature," except as to the 84th and 86th sections and that the defendant could not, under the general issue, avail himself of the defence that he bonâ fide believed he was acting under the provisions of that act; nor could he, under that plea, object that the venue was laid in the wrong county; but should have pleaded those matters specially. Held also, that the New Building Act, (the 7 & 8 Vict. c. 84,) which is printed amongst the public general statutes, is an act of a local and personal nature." Richards v. Easto, 515 66 13. A declaration stated, that before the making the promise thereinafter mentioned, the plaintiff had brought an action in the Exchequer against the defendant to recover a certain sum of money that issues in fact had been joined between the parties, and notice of trial given; that in consideration that the plaintiff would forbear further proceedings until the 14th of December, the defendant promised to pay the money and costs upon that day; and that in the event of his not paying, a Judge's order should be drawn up to secure payment. There was also a count on an D. & L. KKK |