and indorse in the way of business. He has not indorsed in the way of business by this direct indorsement to the plaintiff. It is not necessary to decide whether or no he might have indorsed to himself per procuration, and then to his own creditor. It is said the plaintiff is an innocent party; but this is not so, for he takes it upon its face as indorsed by virtue of a power, and he should have ascertained whether it was within the authority thereby given.

WIGHTMAN, J.-It is not necessary to give an opinion whether an attorney could thus settle accounts between himself and his principal, for the indorsement was here direct to the plaintiff, although there is no force in the argument drawn from the form of Rule absolute.

the declaration.

Possession.

Middlesex, for all the liege subjects of our Lady the Queen, to go, return, pass, and repass, on foot, at all times of the year, at their free will and pleasure; wherefore and because the said waggons, &c. before the said time when, &c. in the last count mentioned, had been wrongfully placed, and were then standing in and across the said highway, and obstructing the same, so that without removing the said waggons, &c. from and out of the said way, the defendant could not then pass on foot into, through, over, and along the said piece of land, in the said highway there, as he ought to have done, he the defendant at the said time when, &c. removed the said waggons, &c. from and out of the said way, and took and carried the same to a small and convenient distance, and there left the same for the use of the plaintiff, doing no unnecessary damage to the plaintiff in that behalf; which are the same alleged grievances in the introductory part of this plea mentioned, whereof the plaintiff hath above complained against the defendant.

more force than was necessary, assaulted and beat the plaintiff. To this replication and new assignment the defendant demurs for duplicity, alleging that the declaration contained but a single trespass, and that the plaintiff could not take issue on the justification, and also new assign, that he brought his action not merely for the trespass mentioned in the plea, but for others than those mentioned in the plea. We are of opinion that the defendant is right, and that the new assignment is bad for the reason assigned at the bar. It was contended for the plaintiff that though a single day only was mentioned in the declaration, and there was no allegation of a trespass committed on other or divers days and times, yet that the defendant was stated to have assaulted the plaintiff, and not to have made an assault, and he was at liberty to shew more PILKINGHOME v. WRIGHT. assaults than one on the same day. It is, however, (Argued in Michaelmas Term.) quite clear in such a declaration the plaintiff is to Trespass-Duplicity-New assignment-Evidence- confine the trespass to one occasion only; he is not bound to the precise time stated in the declaration, Where a declaration in trespass charges that the de- but may shew some one on another day. But having fendant upon one day, without a continuance, as-treated the trespass as occurring on one time and on 5th Plea. As to the causes of action in the said saulted the plaintiff, only one assault can be given in one occasion only, he cannot enlarge the declaration last count mentioned, so far as they relate to the evidence; and therefore a replication de injuriâ, and by a new assignment. The authorities on this point barges, chains and ropes, pieces of wood and timber new assignment to pleas of justification is bad for will be found collected in Green v. Jones (1 Wms. in the said last count mentioned, the defendant says, duplicity. No request is necessary before resorting Saunders, 299 a.) The plaintiff contended the de- that before and at the said time when, &c. in the said to force to prevent a party from forcibly entering fendant's pleas were bad, for not alleging a request last count mentioned, the said river Thames, that is premises. to desist before resisting by force. We do not think to say, a certain part of the said river lying and being there is any weight in this objection. There is a in the county of Middlesex, was a public and navigamanifest distinction between endeavouring to turn a ble river, and the Queen's ancient and common highman out of a close into which he has previously way, and all the liege subjects of our Lady the Queen entered quietly, and resisting a forcible attempt to had, and still of right ought to have, a free passage enter. In the first case a request is necessary, and and navigation in and upon and along the said river, in the latter case it is not. This distinction has for their vessels, craft, and barges, going and returnbeen taken in Weaver v. Bush (8 T. R. 78). In ing in, upon, and along the said river upon lawful ocThe second plea justified, for that the defendant the present case the plea justifies the trespass on the casions; wherefore and because the said barges, in the was possessed of a certain close, &c. and of a certain ground of a forcible attempt, in one case, to enter the last count mentioned, had been and were before, and gate belonging to it; and because the plaintiff, with defendant's close, and in the other case to possess the at the same time, &c. in the said last count menforce and arms and with a strong hand, did unlaw-cow, neither of which was a satisfactory answer. It tioned, wrongfully placed, moored, and fastened, with fully attempt to force and enter, the defendant in de- was also contended that the last plea of justification the said chains and ropes, and pieces of wood and fence of his said possession, and because the plaintiff was bad for not shewing whose close the cow was in; timber, in the said last count mentioned, and were resisted, committed the said trespasses, doing no that it might be the plaintiff's, and that he was justi- then so fastened, lying, and being in, upon, and along unnecessary damage, &c. The third plea justi- fied in driving her out. But the charge is, that the the said river, and obstructing the same, and the fied "because the defendant was possessed of a plaintiff was conveying the cow away from the close navigation thereof, so that, without removing the said certain cow then being in and upon a certain and dispossessing the defendant of her, and that he barges, chains, ropes, pieces of wood and timber, the close;" and the plaintiff endeavoured, without his would forcibly have conveyed her away and dispos- liege subjects of our Lady the Queen, then having consent, to drive and convey away the said cow, sessed the defendant of her. The plaintiff's conveying lawful occasion to navigate in, upon, and along, the and dispossess the defendant of the said cow; and in the cow away from the close, and forcibly endea- said river, could not navigate in, upon, or along the defence of the said possession, &c. The plaintiff re-vouring to dispossess the defendant of her, would, said river as they ought to have done, he, the deplied de injuria to each, and also new assigned "for prima facie, warrant the resistance of the defendant, fendant, at the same time, when, &c. in the said last trespasses upon other and different occasions, and to whoever might be the owner of the close; and as the count mentioned, being a liege subjeci of our said a greater degree." To which the defendant demurred plaintiff has pleaded over and taken objection to the Lady the Queen, and having lawful occasion to navifor duplicity. plea, we do not think the objection available, and the gate on the said river, removed the said barges, judgment, therefore, on the demurrer is for the de-chains, and ropes, and pieces of wood and timber, fendant. Judyment for the defendant.

Demurrer to replication.

The declaration was in trespass, and stated that heretofore, "to wit, on the first day of January, A.D. 1844, the defendant, with force and arms, assaulted the plaintiff, and then with a stick," &c. by means of which said several premises the plaintiff was bruised, wounded, &c.

M. Smith (in Michaelmas Term) was heard in support of the demurrer. The trespass is laid upon one day only without a continuando, and is not at all divisible; yet the new assignment speaks of trespasses upon other occasions. This is not allowable. (Cheasley v. Barnes, 10 East, 73; 1 Wms. Saunders, 300 a; Loweth v. Smith, 12 M. & W. 582; Worth v. Terrington, 13 M. & W. 781.) The objections to the pleas are not maintainable. It is said the wounding is not justified; but it is only laid in the declaration as a consequence, not as a substantial trespass, and need not, therefore, be pleaded to. (Taylor v. Cole, 3 T. R. 292; Gates v. Bayley, 2 Wils. 313.)

Ogle, contrà.-We had a right to new assign. This case is within the general principle. More assaults than one might have been given in evidence. There is a difference between assaulted and made an assault. (Chitty on Pleading; Lucas v. Nockells, 10 Bing. 155; Burgess v. Freelove, 2 B. & P. 425; English Y. Purser, 6 East, 398; Michell v. Neale, Cowp. 828.) But the pleas are bad. There is no allegation of request to desist in the first plea; and the second does not shew that the cow was in the defendant's close; it might have been damage feasant upon the plaintiff's close.

M. Smith, in reply, cited Weaver v. Bush (8 T. R. 78), shewing that request was unnecessary; and contended that the plea sufficiently shewed the possession of the cow, at any rate upon general demurrer. Cur. adv. vult.

JUDGMENT.

Thursday, Dec. 11.-Lord DENMAN, C. J.-This was an action of trespass, assault, and battery. The plaintiff in the declaration complained that the defendant, on the 1st of January, 1844, assaulted the plaintiff, and then seized him and dragged him about, and struck him many blows, by means whereof the plaintiff was greatly hurt. The defendant pleaded two pleas in justification: one, that the defendant was in possession of a close and gateway which the plaintiff endeavoured forcibly to break and enter; the other stating that the defendant was possessed of a cow then being in a certain close, and that the plaintiff against the will of the defendant endeavoured to drive the cow away from the close and dispossess the defendant of her, and would forcibly and in breach of the peace have driven away and dispossessed the defendant of the cow, wherefore the defendant resisted the attempt, and so justified the assault. The plaintiff replied de injuria to these pleas; and also now assigned that he brought his action not only for the trespass mentioned in the plea, but also, for that the defendant on other and different occasions, and with

Thursday, Dec. 11.

PAGE v. HATCHETT.

Pleading-Replication, and new assignment in trover.
In trover for goods and chattels the allegation of num-
ber is divisible; and if the plea, though apparently
answering the whole, in fact answers a part only, the
plaintiff ought to new assign.

Therefore, where in trover for chattels, "to wit, ten
barges, ten chains, ten pieces of wood, &c." the de-
fendant pleaded a right of way; and that the said
barges, &c. in the declaration mentioned, were ob-
structing the same, wherefore he removed them; and
the plaintiff replied generally de injured, and new
assigned that he brought his action not only for the
grievances in the plea mentioned, but also for that he
was possessed of chattels, to wit, five pieces of wood,
other than and different from the said pieces of wood
in the said plea mentioned, &c.-Held, upon de-
murrer, that the replication and new assignment were

proper.

Case.-1st count, for an obstruction of the river Thames, and the access thereby to the plaintiff's wharf, by fixing and setting up piles near to the said wharf.

2nd count, in trover, stated that the plaintiff heretofore, to wit, &c. was lawfully possessed, as of his own property, of certain goods and chattels, to wit, ten barges, ten waggons, ten chains, ten weighing. machines, ten weights, ten chains, ten ropes, ten pieces of wood, and ten pieces of timber, of great value, to wit, of the value of 501.; and being so possessed, the plaintiff afterwards, to wit, &c. casually lost the said goods and chattels out of his possession, and the same afterwards, to wit, &c. came to the possession of the defendant by finding; yet the defendant, well knowing the said goods and chattels to be the property of the plaintiff, &c. hath not as yet delivered the said goods and chattels, or any or either of them, or any part thereof, to the plaintiff, although often requested so to do, and afterwards, to wit, &c. converted and disposed of the said goods and chattels to his own use.

4th Plea.-As to the causes of action in the said last count mentioned, so far as they relate to the said waggons, weights, and weighing machines, in the said last count mentioned, the defendant says that before and at the said time when, &c. there was, and of right ought to have been, a certain common and public highway in, through, over, and along, a certain piece of land, situate and being in the said county of

from and out of the said place in which they so obstructed the navigation of the said river, as aforesaid, and carried the same to a small and convenient distance, and there left the same for the use of the plaintiff, doing no unnecessary damage to the plaintiff on the occasion aforesaid; which are the same grievances in the introductory part of this plea mentioned, whereof the plaintiff hath above complained against

the defendant.

Replication.-As to the fourth plea, which plea is pleaded to the causes of action in the last count mentioned, so far as they relate to the said waggons, weights, and weighing-machines, in the said last count mentioned, the plaintiff says that the defendant, of his own wrong, and without the cause by him in the said 4th plea mentioned, committed the said grievances in the last count mentioned, so far as they relate to the said waggons, weights, and weighingmachines in the said last count mentioned, in manner and form as in the said last count alleged, and this the plaintiff prays may be inquired of by the country, &c.

Replication to 5th plea in the same form, de injuriâ, as to the grievances in the last count mentioned, so far as they relate to the said barges, chains, and ropes, pieces of wood and timber, in the said last count mentioned, in manner, and form, &c.

New Assignment.-That the plaintiff issued his writ, &c. not only for the several grievances in the 5th plea mentioned, and therein attempted to be justified, but also for that the plaintiff heretofore, to wit, on the day and year in the last count mentioned, was lawfully possessed, as of his own property, of certain goods and chattels, to wit, five pieces of wood and five pieces of timber, being other than and different from the said pieces of wood and timber in the 5th plea mentioned, and of great value, to wit, of the value of 51.; and, being so possessed, the plaintiff afterwards, to wit, on the day and year last above mentioned, casually lost the said goods and chattels in this new assignment first mentioned out of his possession, and the same afterwards, to wit, on the day and year last mentioned, came into the possession of the defendant by finding. Yet the defendant well knowing, &c. afterwards, to wit, on the day and year last aforesaid, for another and different cause than the said cause in the 5th plea stated, converted and disposed thereof to his own use, in manner and form as the plaintiff has above declared against the defendant.

Demurrer to the replication and new assignment.

of the Court.-This was an action of trespass for Lord DENMAN, C.J. now delivered the judgment breaking and entering the close of the plaintiff, and cutting down and destroying the rails and palings of the plaintiff there standing, and being in the close, to wit, one hundred yards of rails and one hundred yards of paling. The defendant justified all the trespasses generally under a right of way, and when, &c. were standing in and across the way and because the rails and palings, at the time obstructing it. The plaintiff replied, that the rails and palings were not standing in and across the way, and issue was joined thereon. On the trial it was proved that some of the rails cut down were standing in the way, and some were not; and it was contended for the plaintiff that he was entitled to recover in respect of the railings not standing in the way, and that, on the issue joined on the replication, without that the plaintiff is not entitled to recover, as the num any new assignment. We are, however, of opinion ber and quantity of the rails alleged in the declaration is material and divisible. If the plea, which apparently covered the whole, answered a part only, meant to insist that none of the rails were standing in the plaintiff ought to have new assigned; but if he the way, then he could not: the case of Boceny. JeRkin (6 Ad. & E. 911) is directly in point. That was an action for disturbing the plaintiff's common by turning on his cattle on divers days and times. The defendant pleaded a right of common appurtenant for cattle levant and couchant, and that the cattle in the declaration mentioned were the defendant's own

commonable cattle levant and couchant. The plain-
tiff replied that all the cattle were not the defendant's
cattle levant and couchant; and so issue was
joined. It appeared that at the time of the trial evi-
dence was offered that some of the cattle were levant
and couchant, and that others were not; and it was
held that the effect of the replication was, that the
levancy and couchancy was untruly alleged as to all
the cattle, not that it was truly alleged of some and
falsely of others. The plea answered the complaint
as to some of the cattle; and if the plaintiff in-
tended to draw a distinction between such of the
cattle as were really included in the justification and
such as were not, then he should have new assigned.
The present case falls within the rule collected from a
review of the older authorities found in the note to
Greene v. Jones (1 Wms. Saund. 299), that where the
declaration is general, and the subject-matter divi-
sible, and the plea apparently answers the whole, but
really a part only, the plaintiff must new assign as to
the part not really answered. The defendant, by his plea,
says the plaintiff has complained of cutting down trees
in the highway, and if the plaintiff merely traverses in
his replication that the trees were on the highway,
and it appears that some of the trees actually cut were
there, it may be taken that both parties have agreed
that those were the trees in question; and if the plain-
tiff meant to shew that the plea applied to part only, and
not to the whole, he should have new assigned. Such
a traverse as that taken by the defendant does not
deny the quæ est eadem, but admits it. The case of
Barnes v. Hunt (11 East, 451) was much relied upon
for the plaintiff; but all we think it right to say on
that case is, that it must be considered as an autho.
rity only with respect to the plea of leave and license,
as was observed in the case of Bowen v. Jenkin, by
Mr. Justice Littledale. Our judgment, therefore, is
for the defendant.
Rule discharged.

SPENCE V. MEYNELL and ANOTHER. Validity of commitment under 11 Geo. 2, c. 19, s. 4. Trespass for false imprisonment against two magistrates. Verdict for the plaintiff, damages one farthing.

An order had been made upon the plaintiff by two justices, under stat. 11 Geo. 2, c. 19, s. 4, imposing a penalty for the fraudulent removal of goods to evade a distress for rent; and he had been committed by them under the same section for want of a distress. The objections to that order and commitment were, that there had been no legal summons, on the grounds, first, that there was no complaint in writing; and secondly, that it was signed by one justice instead of two; that the justices were not shewn to be justices "residing near the place whence such goods and chattels were removed, or near the place where the same were found, not being interested in the lands or tenements whence such goods were removed;" that the order was made in the absence of the plaintiff; and that the adjudication was of a joint penalty, not stating how much was to be paid by each. Upon appeal to the sessions, the order was confirmed; and the plaintiff having been brought before Coleridge, J. by writ of habeas corpus, during the last Winter Assizes at York, was remanded, the documents returned upon that occasion appearing to be valid on the face of them. At the trial it was contended that the plaintiff had a right to recover the expenses incurred by him upon that application to Coleridge, J.; but Rolfe, B. who tried the cause, was of opinion that, as the plaintiff was not then discharged, those expenses must be taken to have been improperly incurred, and that therefore he had no right to recover them. Baines, Q. C. on Saturday, Nov. 8, moved for a rule to shew cause why there should not be a new trial, or the damages increased, on the ground of misdirection, contending that, as the plaintiff had been wrongfully imprisoned, he was entitled to recover all the expenses which that wrongful imprisonment had ocCur. adv. vult. Rule nisi granted.

casioned. Afterwards,

BUSINESS OF THE WEEK.
Thursday, Dec. 11.
THOMAS . NUTT.-Miller, for the defendant;
Carrington, for the plaintiff. Rule discharged.
OLDFIELD v. DALRYMPLE. Cur. adv. vult.
DOE dem. BUTLER v. LORD KENSINGTON.-Rule
upon the same points as in Doe dem. Butler v. Lord
Kensington (ante, p. 192).
Cur, adv. vult.
CHURCH v. BENNETT.-This case will be re-
ported next week.

COURT OF EXCHEQUER.

STEEL v. BENHAM.
(Argued Tuesday, Dec. 2.)

A and B, directors of the "Gravesend Cemetery Com-
pany," incorporated under 1 Vict. c. 35, which Act
contains a clause protecting the directors from being
sued for all acts done by them in respect of all" con-
tracts, bargains, matters and things touching the said
undertaking on behalf of the company," accept a Bill
of Exchange on behalf of the company.
Held, that the company have no power to accept bills,
and that the directors having no power to bind the

company, by accepting bills on their behalf, are not
protected from their prima facie liability by the clause
in question.

as one of the special causes of demurrer. Now these three pleas all of them state that, after the making and accepting the bill, and before it became due, the same was delivered as accepted by the defendants to William Wood, who was the payee; and after the bill was so accepted and delivered as aforesaid, and whilst William Wood was the holder and payee thereof before it became due, he indorsed the said bill to J. Harmer. It does not say that he indorsed it in blank, so that it might be transferred to another party, but that he indorsed to Harmer; and then it goes on to state that he did so with the intention to divest himself of all title to the bill, and then that Harmer afterwards delivered the bill to the plaintiff. That is no voucher of any title of the plaintiff, unless the bill is indorsed in blank. The bill is not stated to be indorsed in blank, and therefore it is only an admission that he was the holder of it, and not by indorsement; so that the plea, correctly construed, amounts, not to a confession and avoidance, but to an argumentative traverse of the indorsement. That is pointed out as a ground of special demurrer, and therefore must prevail; and we think that all the three pleas are bad on the same ground. The pleas ought to have concluded with a traverse of the indorsement; and there ought to have been a confession and avoidance, stating that the bill was indorsed to Harmer in blank, so that it could be simply delivered and transferred to the plaintiff, that the plaintiff might have alleged the bill was indorsed by Wood to him. That is a fatal objection to the three last pleas. It becomes unnecessary to give any opinion whether the twelfth plea is in substance good or not.

This was an action upon a Bill of Exchange accepted
by Harmer, Wood, and Layton. The defendants
pleaded several pleas, to all of which there were spe-
cial demurrers. The first set of pleas were to the
effect, that at the time when the said bill was made
the defendants were directors of the Gravesend
Cemetery Company, and that the said bill was di-
rected to them by the name and style of the said com-
pany, and was then accepted by the said defendants
as such directors as aforesaid, in the name and style
and on the behalf of the said company, of which the
defendants had notice; and that the said defendants
were protected from being sued by the Act under
which the company were incorporated (1 Vict. c. 35).
Martin, Q. C. in support of the demurrer.-There
is nothing in the 1 Vict. c. 35 to protect the directors
from liability, if they do any act which will not bind
the company; and it is submitted that there is
nothing in that Act authorizing the company, or
the directors on their behalf, to draw or accept
bills. The only power given is "to make con-
tracts and bargains, and do all matters and things
touching the said undertaking on behalf of the com-
pany." This being, it is contended, merely a power
to purchase materials for the necessary buildings, and
make all contracts relative thereto, the rule of law is
clear that a number of persons banded together for
the purposes of trade, have no power to bind each
other by accepting bills; and then it is further sub-
mitted that if this corporation were to accept bills it
would be an infringement of the Bank Act. (See the
case of Broughton v. The Manchester Waterworks
Company, 3 B. & A. 1.) Therefore as the corpora-
tion have not the power to accept bills, the direc-
tors, if they do so, cannot get rid of their primâ facie
liability by pleading the Act. [ALDERSON, B.-The
limited power given to the directors under the Act is
to do all acts which the company are permitted to do.
so that these words govern the whole.] Yes; it is
therefore submitted these pleas are bad for not shew-
ing that the directors are not discharged as to their
primâ facie liability. Here the tenth, eleventh, and A
twelfth pleas raise quite another question, and it is
submitted that they are bad also in substance as well
as in form. [As the Court ultimately decided against
these pleas on the more technical ground that they
were argumentative and did not sufficiently confess
and avoid, it is not necessary to set out this part of
the argument, the grounds on which the Court de-
cided are fully set out in the judgment.]

Jervis, Q. C. contrà, contended that it was per-
fectly competent to the company to bind themselves
for the payment of any work done for them in any
way they pleased; and this bill was given by the
defendants in their capacity of directors, on account
of a debt contracted by the company under their act.
[PARKE, B.-It is very foreign to the purposes for
which this company were established to give or ac-
cept bills of exchange, and it seems clear that the
legislature never intended that they should do so; if
the directors chose to do that on their own respon-
sibility, they must take the consequences.] The
learned counsel then proceeded to argue on the 10th,
11th, and 12th pleas."

Martin, Q. C. in reply.

PARKE, B.-The Court consider the first set of pleas disposed of, but will take time to consider the questions raised by the demurrer to the 10th, 11th, and 12th.

Cur. adv. vult.

At a subsequent day the Court delivered the following

JUDGMENT.

EXCHEQUER CHAMBER.

Saturday, Nov. 29.

ON ERROR FROM THE COURT OF COMMON
PLEAS.

(Before PARKE, ALDERSON, ROLFE, and PLATT,
BB. and PATTESON, WILLIAMS, COLERIDGE,
and WIGHTMAN, JJ.)

ELLIOTT v. TURNER. (a) patent was taken out for improvements in the manufacture of covered buttons; and the specification stated the third part of the invention to be the application of such fabrics only wherein the ground, or face of the ground, thereof is produced by a warp of soft or organzine silk, such as is used in wearing satin, and afterwards claimed the application of such figured woven fabrics to the covering of buttons, with flexible shanks made by pressure in dies, as have the ground, or the face of the ground, woven with soft organzine silk for the warp, when such fabrics have ornamental designs or figures for the centres of buttons: Held, that the word "or" was to be construed as disjunctive, there being nothing in the context to give it a different meaning, and no facts in evidence to give it a different interpretation.

This case arose out of a bill of exceptions to the direction of Coltman, J. It was an action of covenant by a patentee against licensers of his patent. The declaration set out the indenture of license, which recited that the plaintiff was the true and first inventor of certain improvements in the manufacture

of covered buttons; and that on the 14th of December, 1837, a patent was granted to the plaintiff to use such invention; and also that one John Holmes was the true and first inventor of an improvement in metallic shanks for buttons, for which he also had obtained a patent, and his interest in which patent had come to the plaintiff. The indenture then granted

to the defendant license to use such inventions so far as they are applicable to covered buttons. The declaration then alleged, that although the plaintiff has always performed his covenants, yet the defendant sold a great number of buttons under the name and description of Italian First Dress Buttons, by virtue of the said license, without accounting to the plaintiff, contrary to the said indenture of license. The defendant pleaded that the said buttons are not, nor were any of them, buttons made by virtue of the said license. The record then set out the evidence adduced at the trial. The first documents proved were the letters patent and the specification, which it is unnecessary to detail, but of which the material passages were as follow: "This the third part of my invention, being the application of such fabrics only wherein the ground, or face of the ground, thereof is produced by a warp of soft or organzine silk, such as is used in weaving satin, and the classes of fabrics produced therefrom.

PARKE, B.-This was an action upon a bill of exchange accepted by the firm of Harmer, Wood, and Layton, and there were several pleas. The Court have already given an opinion that the fourth, fifth, seventh, eighth, and the ninth pleas were bad, and the reasons were assigned at the time of the argument. The Court reserved its opinion on the tenth, the eleventh, and the twelfth pleas. The tenth and the eleventh pleas in substance state that Wood was the payce of the note accepted by Harmer; that the other defendants endorsed over them to Harmer; that Harmer paid a valuable consideration for it, and afterwards endorsed it over to the plaintiff without value, and without notice in one, and with notice in the other. As the Court have intimated a strong opinion that, in point of law, they are no answer to the action, however, it is unnecessary to give a final answer on that point, for reasons given hereafter. The effect of the eleventh plea is, that the bill, when due, "Thirdly, I claim the application of such figured was in the hands of Harmer as indorsee of Wood, and woven fabrics to the covering of buttons (with flexible that the bill, when it came into the hands of Harmer, shanks made by pressure in dies as have the ground, who was the indorsee of Wood, and himself one of or the face of the ground, woven with soft or organthe persons liable to pay, was accepted by him, and zine silk for the warp, when such fabrics have ornatherefore it is argued it could not be afterwards trans-mented designs or figures for the centres of buttons)." ferred. On that point the Court felt very considerable He read the whole of the evidence, which was of doubt, but it is unnecessary to give any opinion great length, and which it is unnecessary for the on it, because there is one common objection comprehension of the point decided in the judgment pointed out by special demurrer to all the three to detail. It appeared that organzine was a species last pleas; which is, that they are an argumentative of soft silk, but not the only soft silk; and the dispute traverse of the indorsement, and that they do not sufficiently confess and avoid, and that is pointed out

(a) This case was repɔrted by A. A. Fry, esq.

was, whether what had been actually used was organzine, or another kind of silk. The learned judge told the jury that the question was, whether an article which was complained of as being an infringement of the patent was, in fact, produced from a silk which was substantially and answered to the description of soft or organzine silk, and then minutely detailed the evidence. The record then states that "the said learned judge having so charged the said jury, and summed up the said evidence, handed a copy of the said specification to the said jury, and then directed them to consider their verdict; and thereupon the foreman of the said jury said it would much assist them, the said jury, if the learned judge would tell them how they, the said jury, were to interpret the word "or" in the said specification; whether it was disjunctive, or whether organzine was the construction of the word soft; and thereupon the learned judge gave his opinion to the said jury in the words following; that is to say, 'I should be disposed to say, unless it is organzine it is not within the patent;' whereupon the counsel for the said plaintiff did then and there, on behalf of the said plaintiff, except to the said last-mentioned opinion and direction of the said learned judge, and contend against the same, and insist that soft silk, although not organzine, was within the said patent and the said license."

Montagu Smith and Webster appeared in support of the exception; and Sir Thomas Wilde, Rotch, and Hugh Hill, contrà; but the judgment renders it unnecessary to give the arguments in full. On the part of the plaintiff it was contended that there are other kinds of soft silk than organzine, and that the real question therefore left to the jury should have been, whether the article used was substantially made of soft silk, suitable for weaving satin. That if any other description than organzine could be used, the patent would be easily and constantly evaded; and that organzine was only used as a description of the sort of silk intended to be protected. That a specification is not to be construed as a pleading; but great latitude is to be allowed to the language employed in it, so as to uphold the patent.

On the part of the defendant, it was contended that if the specification has been so drawn as to admit of two constructions, the one by which the right of the patentee is most limited must be adopted. That in the construction of a specification, the state of the trade at the time it is drawn is most material; and

that in this case the evidence was abundant that in the weaving of satin, organzine or soft silk were perpetually used synonymously, and that the patent article had never been made but with organzine; that great improvements in twist had been made since the patent, and this was an attempt by the patentee to engraft all such subsequent improvements on his patent; that the jury must have found that the silk used was not organzine, in any sense known in the trade.

JUDGMENT.

A second summons under the 5 & 6 Vict. c. 122, &,11, may issue on one and the same affidavit.

It is sufficient to state that the debt is due on a bill of exchange, without entering into the consideration for it.

The debtor in this case had previously been summoned pursuant to the 11th sec. of the 5 & 6 Vict. c. 122; but on account of some informality which did not appear, it was dismissed. A second summons was now issued upon the same affidavit as the former, against which

the silk was organzine it was not within the patent.
The learned counsel for the plaintiff excepted to
that opinion, and insisted that it was. We are
all of opinion the exception was well founded,
and that the direction of the learned judge
was not correct. The word "or" in its ordinary
sense is a disjunctive particle, and the meaning of the
term soft or organzine is properly either one or the
other, and we think so it ought to be construed, un-
less there is something in the context to give it a
different meaning, or unless the facts in evidence (but
there were none) show that a different interpretation A Solicitor for the debtor contended that no second
ought to be made. There was nothing in the context summons could issue upon the same affidavit. The
to lead to a different construction. But the facts party had already been served with a summons, had
might be such, that applying the patent to them, the attended under it, and it had been dismissed; the affi.
word "or" might be construed not in its proper sense, davit could therefore be made no further use of. He
but as another description of the same thing, and the did not dispute but that the debtor might be sun-
words would read in this form, "soft, otherwise called moned a second time before the Court, but in order
organzine silk ;" and if the fact was, that at the date to do so the creditor must begin anew, and lay the
of the patent organzine was the only species of soft groundwork of his proceedings entirely afresh. His
silk in known use in weaving satin, it comes within HONOUR.-May he not swear his affidavit afresh?]
the meaning of the patent, and would be a specific The previous summons has been attended under, and
ground for construing the specification as meaning to it has been dismissed. [His HONOUR.-But not
apply to soft, alias organzine silk, and implied organ- the affidavit.] There is also another objection,
zine only; but if there was soft silk as well as organ- The affidavit simply states the amount for which the
zine silk used, then the specification must be con- debtor is summoned to be due on a bill of exchange,
strued in i's proper sense, and both species would be without stating any consideration whatever. In the
within the patent. The interpretation the learned case Ex parte Greenstock (not yet reported), which
judge put on that term was not correct, unless the came before the Court of Review, it was argued that
facts were such as to lead to it. These facts were for it was improper to file an affidavit of debt as on a bill
the determination of the jury, and the learned judge of exchange alone, inasmuch as the bill was merely
should not have told the jury that soft and organzine a collateral security for the consideration which
silk were the same, but that the words were capable constituted the debt, and Knight Bruce, V. C.
of being so construed, if the jury were satisfied that thought this to be the correct view. [His HONOUR.
at the date of the patent there was only that descrip--An action may be brought on a bill of exchange
tion of silk used in satin weaving, otherwise the ordi- without stating the consideration. Why should more
nary tenor of the words should be adopted, and the particularity be required here?] This cannot be
patent held to apply to every species of soft, alias considered as a compliance with the rules and
organzine silk. Therefore there must be a venire de orders of this Court, which require that the debt
novo.
should be stated with certainty and precision.

COMMISSIONERS' COURTS.

(Before Mr. Commissioner EVANS.)
Wednesday, Dec. 10.

Re JOHN RICKETTS.

Summons under 5 & 6 Vict. c. 122, s. 11—Particulars
of demand and notice, certainty in.
Particulars of demand and notice described the debtor
summoned as "J. R. of Gosport, in the county of
Southampton, grocer." In the summons the word
"grocer" was omitted: Held, that the omission was
immaterial.

The particulars of demand need not give every item of

the sum due, and it is sufficient if the sum total be
correctly stated.

In the particulars of demand, it is necessary to state the
residence of the summoning creditor.

grocer,

considered as the result of lumping together many
particulars, and he contended that a more formal and
definite demand was necessary. There was also a
and notice a full and particular description of
third objection. In the particulars of demand
the party making the demand must be stated.
Schedule A 2 requires that the residence of the

His HONOUR.-With regard to the first objection, I can see no reason why a second summons may not issue on the same affidavit. I am also of opinion, as to the second objection started, that the omission to state the consideration of the bill does not invali date, and I think sufficient precision has been used. Application to set aside summons refused.

Wednesday, Dec. 17.

(Before Mr. Commissioner GOULBURN.)
Re H. MORNEWICKE.
Petition-Variance.

It is a fatal objection to a petition under 7 & 8 Vict.
c. 96, that upon the face of it the exact date upon
which it is presented does not appear.

The petitioner coming up for his interim order, Wise appeared on behalf of an opposing creditor against the petition, and took a preliminary objection that the Court had no jurisdiction, as the petition varied from the form required by the 7 & 8 Vict. sented upon the day of December, A.D. 1845, c. 96, inasmuch as it purported to have been preHe submitted this was a substantial defect, as questions of residence for twelve months, and questions as to the rights of the assignees, would depend upon the exact date of the petition being presented; even if not material, the statute was peremptory.

statute is imperative, and the defect cannot be His HONOUR.-The objection must prevail, for the amended. The date is very material in all subsequent proceedings, and I am not sorry that the objection has been taken, for these points ought to be attended to. Petition dismissed.

COUNTRY COMMISSIONERS'

COURTS.

LEEDS COURT OF BANKRUPTCY.
Monday, Dec. 15.

In this case John Ricketts was summoned before the Court under the 5 & 6 Vict. c. 122, s. 11. PARKE, B.-The question in this case arises on an Bagley, for the debtor, objected to the summons, on exception to the direction of my brother Coltman, in the grounds-first, that the debtor was described in an action tried before him on a covenant by the de- the particulars of demand and notice as "John fendant to pay to the plaintiff a stipulated allowance Ricketts, of Gosport, in the county of Southampton, for all buttons made by the defendant according to the "but in the summons the word "grocer plaintiff's patent. The issue was, whether certain buttons made by the defendant, called "Italian First was omitted. He contended that the trade was a Dress Buttons," were made under the license to use 26th rule, which states that "every summons under material part of the description, and referred to the the plaintiff's patent. The parts of the specification the said Act shall describe the parties in the same material to the question were these: "The third part manner as they were described in the particulars of of my invention is the application of such fabrics only. demand and notice." Again, he contended that the This is the third part of my invention, being the ap- creditor had not complied with the regulations conplication of such fabrics only wherein the ground, or tained in Schedule A 2, for that the only particulars face of the ground, thereof, is produced by a warp of he had delivered were couched in these terms: soft or organzine silk, such as is used in weaving" Balance, 307.;" and he submitted that these were satin, and the classes of fabrics produced therefrom;" and afterwards, in another part of the specification, thus broadly stated to be due were correct, it must be not such particulars as the Act required. If the sum the plaintiff states his claim to "the application of such figures. Thirdly, I claim the application of such figured woven fabrics to the covering of buttons with flexible shanks, made by pressure in dies, as have the ground, or the face of the ground, woven with soft, or organzine silk for the warp, when such fabrics have ornamental design or figures for the centres of buttons." On the trial, much evidence was given on both sides, the witnesses for the plain-person making the demand should be given. Here, tiff stating the buttons of the defendant were made of Jones, public officer of the Gosport, Portsmouth, the claimant merely describes himself as "William organzine silk; those for the defendant, that they and Southampton Banking Company;" and nothing were not. The latter deposed that the buttons were whatever is said as to his place of abode. This canmade from a material called twist, which might be termed soft silk or organzine, being a species of silk not be considered as a compliance with the form there thread in which there is a spin or twist in each indiHis HONOUR.-I think the first and second obvidual thread before they are twisted together, the twist being a description of silk in which two or more jections cannot be entertained. With regard, how threads are twisted together, each thread not having ever, to the third, I am of opinion that the creditor, been twisted. The learned judge summed up the evi- in omitting his residence, has not sufficiently comdence to the jury on both sides, leaving to the jury plied with the form given in the schedule; the sum-viously to the return of the shares so borrowed, a fist the question whether the buttons made by the demons must, therefore, be dismissed. fendant were within the meaning of that part of the specification. At the close of the summing up, the foreman of the jury said it would much assist the jury if the learned judge would tell them how they were to interpret the word "or" in the specification; whether it was disjunctive, or whether the organzine was a construction of the word soft; and thereupon the learned judge gave it as his opinion, that unless

laid down.

Summons dismissed.

Monday, Dec. 15.

(Before Mr. Commissioner SHEPHERD.)
Ex parte PHILLIPS, re GRIFFIN.

5 & 6 Vict. c. 122, s. 11-Affidavit for summoning
debtor-Certainty in statement of debt.

(Before Mr. Commissioner WEST.) Re SAMUEL PHILIPS, & Bankrupt. Share transactions-Proof of debt. In this case Mr. Bulmer claimed to prove on behalf of T. H. a debt of 941. 4s. due from the bankrupt on in the month of October, T. H. applied to the bank. a railway share account. It appeared that some time rupt to buy for him sixteen shares in the Coventry and Nuneaton Railway. This the bankrupt did, and received from T. H. the money, amounting to 691. 45., them. Five of these shares the bankrupt afterwards at the same time delivering to T. H. the scrip for sold for 241. A few days subsequently, the bankrupt borrowed from T. H. the remaining shares, giving him a form of acknowledgment for the loan. Pre

was issued against the bankrupt. T. H. had also ordered the bankrupt to buy for him ten Wakefield and Bradford Railway shares, which would have cost at that date 761. 5s.; at the same time giving him 251. on account, to meet the outlay for them. This transaction was also unsettled at the date of the fiat, the bankrupt having neither given back the money nor handed over the scrip. The Coventry line was a line of which the complete registration had been ef

Mr. Commissioner WEST.-I think the 241. that part of the 691. 4s. which the bankrupt either actually had, or ought to have, received, must be admitted as a debt against his estate. The rest of the 691. 4s. cannot be allowed proof, as it is only in the nature of liquidated damages. As to the other sum of the 251. I think the claimant is entitled to prove also for that, as it seems to have been money paid into the bankrupt's hands, of which he did not make the use intended by the claimant.

THE LEGISLATOR.

Summary.

It is

Examinations.-Parish officers must again be reminded that copies of every document produced before the removing magistrates must be sent with the examinations to the receiving parish. Thus, the omission of a copy of a deed in Reg. v. East. Rainton (5 Law T.), or of a previous order of removal (Reg. v. Inhabitants of Wellington, 6 Law T. 146), is fatal to the order.

Evidence of chargeability.-Were it not that the case has occurred, we should hardly have bebelieved that the statement of a relieving officer of a union that he had relieved the paupers, by order of the board of guardians, could be held to be evidence that the pauper was chargeable to a particular parish within that union. This, however, was held by the Court of Quarter Sessions in Reg. v. Inhabitants of Shitlington (6 Law T. 147), but the order was quashed by the Court of Queen's Bench, upon the short ground "that there was not the slightest evidence to connect the relief given within the respondent parish," without the order book, in which were entered the orders of the board of guardians, specifying in respect of what parish the pauper was to be relieved by the officer of the union.

fected. In the Wakefield and Bradford, the scrip|perly did nothing at those sessions, but at Mid-hear, because one of the justices' names was set merely had been allotted. summer sessions, they entered and respited the out wrongly, owing to the difficulty of reading his appeal, as a mere motion of course, without any signature. (Reg. v. Justices of Middlesex, 6 Law notice to the respondents, and delivered their T. 170.) notice of trial and grounds of appeal for the October sessions. The respondents objected that the appeal ought to have been tried at the July sessions, but the Court overruled the objection, and quashed the order of removal. The respondents then obtained a rule nisi for a certiorari for the removal of the order of quarter sessions, together with the original order of removal, that the former might be quashed. Upon cause being shewn against the rule, Wightman, J. took time to consider, and in the course of last Term discharged the rule. We do not see exactly whence ALL as yet is doubt and surmise as to the the learned judge's doubts arose, for the power to probable proceedings of Parliament. respite or adjourn is inherent in every court where it once obtains possession of the subject-matter, only certain that there will not be an imme- and it is purely a question for their discretion (exdiate dissolution. The Ministers will meet the cept under a statute, as 9 Geo. 1) whether they will present Parliament and submit their measures, adjourn or not. The case cited for the respondents and only in case of their defeat will a general (Rex v. Justices of West Riding, 4 M. & S. 327) election take place. How the political agita- shewed merely, that where the sessions had refused tion will affect the various important private to respite, the Court of Queen's Bench would not matters that are to be submitted to the Legis-interfere with their discretion; a decision supported lature is only too apparent. Business will be by many other cases. (Ex parte Becke, 3 B. & Ad. overlooked amid the fury of conflict, and there 704; R. v. Staffordshire, 12 L. J. M. C. 9.) is little hope of any of the numerous private Indeed, the sessions might adjourn it toties quoties Bills even of the last session being carried as they thought fit. That at the first practicable through, much less the new projects. Some sessions the appeal must be entered and respited, anxiety has been felt as to the probable con- although the trial would have been postponed, besequences of a dissolution upon the standing in due time, is shewn by Reg. v. Sevenoaks (5 Law cause the grounds of appeal had not been delivered orders; but a short Act would doubtless be T. 73; 14 L. J. M. C. 92); and if this be omitted, passed to meet the difficulties thence arising, a subsequent sessions have no jurisdiction. and to prevent the serious losses that would Appeal, when heard, although sentence expired. accrue from so many deposits being held over-In Reg. v. Justices of Leicestershire (6 Law T. for another year. And as to the early meeting of Parliament, it is presumed that the period for presenting private Bills and paying deposits will be extended, by order, to the same period as if the Parliament had assembled at the usual time.

THE MAGISTRATE.
Summary.

150), it was objected that a mandamus to enter
continuances and hear an appeal against a convic-
tion under 8 Geo. 4, c. 29, s. 42, that the parties
convicted had completed their term of sentence, and
that the appeal would therefore be useless. The
Court were inclined to admit the objection, but
upon it being pointed out that a second conviction
for the same offence would be a felony, they held
that the appeal ought to be heard, and the rule for
a mandamus was made absolute.

CLERKS OF THE PEACE.

Fees. We have already commented so much upon the particular case of Reg. v. Coles (suprà, p. 133), of the decision. The first point upon which the that we shall only here briefly refer to the substance judgment turned was, that an order made by the Court of Quarter Sessions, altering the fees to be taken by their officer in the course of the judicial proceedings of the Court, was a judicial order, subject to be removed by certiorari into the Court of Queen's Bench. The other and more important question decided was, that the Court of Quarter Sessions have no original power to alter any scale of fees once established under the provision of the 57 Geo. 3, c. 91, but must proceed in the course pointed out by the statute to diminish or get rid of such as may be improper or oppressive. The particular table of fees against which this order was made may be seen (suprà, vol. 2, p. 66.) We On appeal, all the objections need not be decided. would mention here, that there is a case in the books -A curious application was made in Reg. v. Jus-where an order was made by a court of quarter sessions for the removal of the clerk for extorting illegal fees. The proceedings are set out at length, and although the order was quashed, their power to remove for misdemeanor in the execution of his office was not at all shaken. (See Reg. v. Baines, 2 Ld. Raym. 1265.) Some disputes will doubtless arise upon the new Act (8 & 9 Vict. c. 114), but at present we see no reason to qualify the remarks that we before made against the legality of refusing any legal right to a party in the course of a trial until the fee is paid. And this view is strengthened by the case of Polhill v. Gerrard (1 Ld. Raym.), where, in answer to a remark that it was customary to commit for non-payment of fees, Holt, C.J. said, I know of no such custom; if the fees are due, assumpsit will lie.

THERE is nothing of special interest to re-tices of Northamptonshire (6 Law T. 172), for a port in this department.

REVIEW OF MAGISTRATES' CASES DE

CIDED IN MICHAELMAS TERM.

For two years the readers of this Journal have had put before them in a concise form, the main decisions upon this branch of the law, in each term, and the same plan will be followed for the future, as we know that its usefulness has been appreciated by those for whose benefit it was intended. The Term just finished has not furnished any very important decisions, but all those of any consequence will be here stated, with such cursory observations as may seem appropriate to fix them in the niches of the memory, and hang them on to prior deci

sions.

APPEAL.

mandamus to justices to hear an appeal, because,
after the respondents had admitted that one of the
formal objections, that to the notice of charge-
ability, was fatal, the sessions refused to hear the other
eighteen grounds of appeal discussed. The man-
damus was refused; and it would have been strange
if that Court, which more than any other evades the
decision of questions not absolutely necessary, had
forced the Courts of Quarter Sessions to adopt a
practice so contrary to their own.

COSTS HIGHWAYS.

Notice of appeals.-The magistrates at sessions sometimes allow themselves to be led by ingenious counsel into apices juris, and fancy that they must decide according to the strictest examples of special demurrer or old pleas of misnomer. Thus, notwithstanding that a notice of appeal need not be in writing, the Leicestershire justices held that a After some conflicting dicta and decisions, some notice of appeal against a conviction, describing important points may now be considered settled, Practicable sessions. It would be needless to one of the magistrates as James Dudley, Esquire, as to the right of prosecutors under the Highcite cases establishing that the "next sessions" to instead of James Dudley, Clerk, was no notice at way Act (5 & 6 Wm. 4, c. 95, s. 50) to costs. which an appeal must be made, mean, next prac-all. But the Court of Queen's Bench, almost with- That section, after enacting that in cases of disticable sessions; that is, the first sessions in time out argument, granted a mandamus to enter con-puted liability to repair, the justices shall direct for which the required notice of appeal and the tinuances and hear the appeal. (6 Law T. 150.) an indictment to be preferred, contains the folstatement of the grounds of appeal can be given, This was the Leicester case, which excited so much lowing words :-" and the costs of such prosecuafter the lapse of time allowed for the decision to comment some months ago: in the first place, be- tion shall be directed by the judge of assize before appeal; and in Reg. v. Justices of Surrey (6 Law | cause the single oath of the prosecutor was held to whom the said indictment is tried, or by the justices T. 131), the point was very properly yielded by counterbalance a very clearly proved alibi; and at such quarter sessions, to be paid out of the rate counsel as fully decided. It is also clear, that then, by the appeal against the conviction being made and levied in pursuance of this Act in the where the appeal cannot be tried, there is no occa- quashed upon such an objection as this, where the parish where such highway shall be situate." It sion to incur the useless expense of entering and characters of the defendants were so fearfully at was at first supposed to be imperative upon the respiting the appeal (R. v. Justices of Devon stake. Whether the appeal be successful or not, judge or justices, and so to hold out a premium to 8 B. & C. 640, n.); and where the appeal can be this should be a lesson to the justices of sessions, attempts to establish by legal proceedings the exist. tried, and is entered, the Court of Quarter Sessions to be read side by side with that given by Lord ence of a highway, with or without reason, at the is not bound to adjourn the appeal; for the 9th Denman, in Reg. v. West Houghton (5 Q. B. 300), expense of the parish. (See Rex v. Yarkhill, 9 C. P. Geo. 1, c. 7, only applies to cases where there has where they held a notice of appeal bad because it 218; and see Reg. v. Pembridge, 3 Q. B. 903.) not been reasonable time of notice; that is, where did not contain the names of the justices who made But the manly and just mind of Lord Denman renow there is no occasion to enter it at all. But the the order. "The objection is about as good," said his coiled from this when a case came before him, question, whether, in cases where they could try, lordship, "as if they had complained that the notice where the claim was boldly put forth by the the appellants were bound to try, was raised, and did not say what manufactory the paper came prosecutor after the prosecution had completely has been decided in the negative, after considera- from on which the order was drawn up. We pur- broken down. He then perceived what Patteson, tion by Wightman, J. in Reg.v. Justices of Surrey posely refer to this case, as on the last day of Term J. had also done before (R. v. Chedworth, 9 C. & (6 Law T. 131). The order of removal was made a rule nisi was applied for (and, of course, ob- P. 285) that the words could not be imperative and executed too late for the appeal to be tried at tained), for a mandamus to the justices of Middle-where the road was decided not to be a highway. the Easter sessions, and the appellants very pro- sex to hear an appeal, which they had refused to Reg. v. Heanor (1 Bit. & Sym. 172; 4 Law T.),