RODEN V. RYDE. 4 Q. B. 626.

Bill of Exchange.— Identity of Defendant.

It is laid down by Mr. Phillips, in his Treatise on the Law of Evidence, that in an action on a bond, or on a promissory note or bill of exchange, and in other cases, some evidence of identity will be necessary to connect the party with the instrument; and that, with a view to establish the identity of the party, and to show that the person who executed the instrument is the party to the suit, or the party charged, proof of the party's handwriting may be important and most satisfactory evidence. Proof of his signature would be decisive; but that proof is not absolutely necessary, and much slighter evidence will be sufficient.1 The case now before us shows that proof of the signature of a bill of exchange by a person bearing the same name as the defendant, is primâ facie sufficient evidence to charge him with the liability, unless from the frequency of the name, or from other special circumstances, such evidence is manifestly deprived of its ordinary weight.

WALTON V. MURCALL.

Promissory Note.

13 Mees. & Wel. 72.

Notice of Dishonour to Guarantee.

By an agreement in writing, in consideration that the plaintiff would accept a promissory note of one Johnson, payable six months after date, the defendant guaranteed to pay the amount of the note to the plaintiff in case it should not be honoured and paid at maturity by Johnson. The note not having been paid at maturity, the plaintiff brought his action on the agreement. The defendant pleaded that there had been no presentment to Johnson, and also that he, the defendant, had received no notice of the dishonour of the note. Per curiam,- The defendant, not being a party to the note, was not entitled to notice.

The defendant, Dr. Dibdin, was one of the Queen's Chaplains in Ordinary; and, as such, was liable to be called upon at any time to officiate before her Majesty. He also received a salary for this

ception of tolls, in accordance with the principle involved in the decisions above referred to, the rate must be estimated by the amount of the tolls received, whilst those who exercise the lucrative business of carriers will contribute nothing to the parochial rates.

1 Vol. i. 214, ed. 1843.

office; and, upon these grounds, obtained a rule to show cause why he should not be discharged out of the custody of the sheriff, who had arrested him under a ca. sa. Pollock, C. B. "The defendant is clearly entitled to be discharged."

In this case a sheriff's officer, for the purpose of arresting a woman under a ca. sa., entered and searched the house of a third person. It turned out that the woman was not in the house at the time; and this entry was therefore decided to be illegal, although the woman resided there immediately before the entry, and the officer had reasonable cause to suspect that she was in the house.

Alderson, B.: "A party who enters the house of a stranger, to search for and arrest a defendant, can be justified only by the event. If a sheriff enters the house of the defendant himself, for the purpose of arresting him or taking his goods, he is justified, if he has reasonable grounds for believing that the party or his property is there; but here the party to be arrested was not found in the house of the plaintiff, and therefore the defendants were not justified."

QUANYON V. TOOGOOD. 13 Mees. & W. 27.

In August, 1843, the plaintiff agreed to sell to Douglas a house and furniture, of which Douglas was then tenant, for six months; and the purchase-money was to be paid on the completion of the title. Pending the completion of the title, the tenancy of Douglas expired; and the parties, by mutual consent, subsequently rescinded the contract of sale, and a few days afterwards Douglas gave up the house and furniture to the plaintiff. But before Douglas had thus relinquished possession, the furniture had been taken in execution upon a judgment against him; and the question upon a special case was, whether the effect of the agreement for sale was to vest the property in Douglas from and after the date of the agreement. Alderson, B.: "This is a sale of the house and furniture; but no property passes till the completion of the contract, and before that event occurs the sale is rescinded by mutual consent. A third party has no right to intervene, and take the goods in execution; otherwise nobody could safely sell a furnished house, without searching for judgments against the purchaser, even though he might have contracted to have the purchase-money down." Judgment for the plaintiff.

THE QUEEN V. NOTT. 4 Q B. 768.

Indictment against a Magistrate administering illegal Oaths.

It is an inflexible rule of criminal pleading, that where a statute describes prohibited acts simply by their legal character, it is not sufficient merely to aver that a party indicted was guilty of such acts describing them by their legal character. The facts must be stated with sufficient minuteness, to show the Court that they possess the legal character imputed otherwise it must be left to a jury to draw an inference of law. This rule is exemplified in the judgment of the Court of Queen Bench in "The Queen v. Nott," which was an indictment against a magistrate of the county of Devon, founded on the stat. 5 & 6 W. 4. c. 62. s. 13., which declares, "that it shall not be lawful for any justice of the peace, or other person, to administer any oath, affidavit, or solemn affirmation, touching any matter or thing whereof such justice or other person hath not jurisdiction or cognizance, by some statute in force at the time being." The indictment averred, that the matter in respect of which a deposition was taken by the defendant, was a matter whereof he had not then jurisdiction or cognizance by any statute, but the subject matter of the oath was not set out, and the Court held that although it might not be necessary to set out the words of the oath, or the whole statement sworn to in the indictment, it should have contained some distinct allegation as to the matter or thing touching which the oath was administered, sufficient to show that it was not one of which the defendant had cognizance. Upon this ground, the Court set aside a judgment pronounced against the defendant at the Assizes, under the stat. 11 G. 4 & 1 W. 4. c. 70. s. 9.

IN RE HENRY LLOYD HARRIES. 13 Mees. & W. 3.

Taxing Attorney's Bill after Payment.

It has been determined by the Court of Exchequer, in this case, in conformity with a previous decision of the Master of the Rolls', that where a client gives a bill of exchange or promissory note to his attorney for the amount of his bill, which bill of exchange or promissory note is ultimately paid, the application to tax "within twelve months after payment," as prescribed by the Attornies and Solicitors Act, (6 & 7 V. c. 73. s. 41.) is in time, if made within twelve months after the bill or note was actually paid, although more than twelve months has elapsed since the bill or note was

1 Sayer v. Wagstaff, 5 Beav. 415.

originally given. The statute, however, would admit of a different construction, of circumstances appeared to shew that the parties treated the bill if exchange or promissory note as an actual payment, and not merely as a security.

TORRENCE V. GIBBINS, 1 Dav. & Mer. 226. 13 Law, J. 36 Q. B. DUNFORD AND OTHERS V. TRATTLES, 12 Mees. & Wal. 529.

Pleading. Effect of "Not Guilty" in Case.

The restrictive operation of the general form of traverse known as "the general issue, " under the new pleading rules of Hill 4 W. 4., has occasioned a series of decisions of great practical importance to the pleader. If any material fact alleged in a declaration be not put in issue by the general issue, or specially traversed, the defendant at the trial is precluded from disputing such fact: on the other hand, if any fact be specially traversed which may be put in issue by the general form of denial, the plea is bad on special demurrer, as amounting to the general issue, and thereby creating unnecessary prolixity of pleading. The importance of determining what facts are, or are not, put in issue by the plea of the general issue, is therefore manifest. In actions on the case, according to the pleading rules, the plea of "not guilty" operates "as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant." The action of seduction proceeds upon the injury alleged to be sustained by the plaintiff, from the loss of the services of the party seduced. In Torrence v. Gibbins the question arose, whether to a declaration, alleging that the party seduced was at the time of the seduction the servant of the plaintiff, the defendant wishing to dispute the fact, might traverse the service modo et forma, or content himself with the plea of "not guilty." The point came before the Court of Queen's Bench upon a special demurrer, on the ground that the plea traversing the service was anargumentative plea of "not guilty," and should have been so pleaded. In support of the demurrer it was contended, that the cause of action was not the seduction, but the injury resulting from it to the plaintiff by reason of the party seduced being his servant, and that the seduction of the plaintiff's servant was the "wrongful act" put in issue by "not guilty." On the other hand, it was argued, that although the character of master and servant was stated substantively in the declaration, it was merely matter of inducement and that any material matter of inducemeut must be specially traversed. The Court held, that seduction was prima facie an injurious act, put in issue by the plea of "not guilty," but that the denial that injury resulted to the plaintiff, was properly the subject of a special plea.

The operation of the plea of "not guilty" in case, was also brought under the consideration of the Court of Exchequer in Dunford and others v. Trattles. There the declaration stated, that the plaintiffs were possessed of a ship, and that the defendant was possessed of another ship, and that the defendant's ship, by the carelessness and mismanagement of his servants, ran foul of and damaged the plaintiff's ship. On the trial, the injury through the mismanagement of the persons on board the ship alleged to be the defendant's was proved, but the plaintiff gave no evidence to show that the vessel was the property of the defendant, which, his counsel contended, was necessary to entitle him to a verdict on the issue raised by the plea of "not guilty." Wightman J., who tried the cause, thought the defendant's ownership was admitted on the pleadings. The question was afterwards brought before the Court on motion for leave to enter a nonsuit. In argument it was admitted, that if the case of Taverner v. Little 1, which was an action on the case against the defendant for negligently driving his horse and cart against the plaintiff's horse, could be supported, the ruling of Wightman J. was correct, as in the last-mentioned case it was expressly held, that under the plea of "not guilty," the defendant was not at liberty to shew that the cart did not belong to him. The cases of Woolf v. Beard2, Hart v. Crowley 3, and the first-mentioned case of Torrence v. Gibbins having been cited for the plaintiff, the Court unanimously held, that the plea of "not guilty" did admit that the defendant was possessed of the vessel that injured the plaintiffs, and that if it was desired to deny the fact, a traverse might have been taken on it, which would not be demurrable.

4

ARMANI V. CASTRIQUE. 2 Dowl. & Lown. 432. (Exchequer.)

Pleading. Declaration on a Foreign Bill of Exchange.

The declaration by indorsee against indorser of a bill of exchange omitted to state where the bill was drawn, following the form given by the rule T. T. 1 Wm. 4. for declaring on an inland bill. The defendant by his pleas respectively denied the drawing and indorsing of "the said inland bill of exchange modo et forma." On special demurrer the Court held that the pleas were good, for that where a bill is declared upon, as against an indorser, as an inland bill, the defendant had a right so to treat it, and to exclude all ambiguity by so calling it. The declaration against the maker or indorser of a foreign bill ought to state it to be a

15 Bing. N. C. 678.; 7 Scott, 796. 12 Ad. & El. 378.

8 Car. & P. 373.

4 1 Dav. & M. 226, 13 L. J. 36 Q. B.