1832. EVANS v. MORGAN. Exch. of Pleas, think that there was prima facie evidence of reputation of a marriage. I think, also, that there was evidence of the condition being performed. That condition was the giving up possession of the land, and the defendant had his cattle on the land on the day in question. There was evidence the other way, but still the question was for the jury; and it appears to me that the evidence for the plaintiff was the stronger. If so, Davis was bound to give up the note to the plaintiff; and if he were bound to give up the note, it is clear that the plaintiff has a right to sue on it, notwithstanding any wrongful act of Davis. The case, therefore, was left to the jury, on the exact grounds on which it ought to have been left to them, and this rule must be discharged. BOLLAND, B., concurred. Rule discharged. A. devised an estate to trustees for years, with remainder to B., which B., 18 years after the death of A., treated as his freehold, and leased for lives. the lessee of B., DAY v. WILLIAMS. CASE by the plaintiff, as reversioner, against the defendant for undermining a dwelling-house of the plaintiff. At the Carnarvon Assizes, before Bosanquet, J., the plaintiff proved his title by shewing perception of rent; upon which, evidence having been given of the injury, the defendant produced a lease of the premises in quesIn an action by tion, from the Marquess of Anglesey to the plaintiff, for as reversioner, lives; and likewise the will of the late Lord Uxbridge, who had been dead about eighteen years, by which he devised the premises in question to trustees for a term of years, in trust to pay annuities, and for certain other purposes mentioned in the will, with remainder to Lord Anglesey. The plaintiff insisted that it was for the jury to decide, whether the term had not been surrendered, and relied upon the manner in which the property had the jury were told, that they could not pre sume a surren der of the term by the trustees to B.; and, upon motion, the di rection was held to be right. 1832. been treated by Lord Anglesey, as leading to that in- Exch. of Pleas, ference; but the learned Judge told the jury, that they could not presume a surrender of the term; and a verdict was accordingly found for the defendant. John Jervis moved for a new trial; and submitted that the question was withdrawn from the jury, by the direction of the learned Judge; and that the circumstances did fairly lead to an inference of the surrender of the term. BAYLEY, B.-Is there any case where a surrender has been presumed within twenty years? I do not think that a jury ought to be required to presume what they do not believe. I have frequently talked with Lord Tenterden on the subject, and we have agreed in thinking that the rule, as to presuming surrenders, has gone far enough, and that it ought not to be extended. A Judge ought not to require a jury to find on their oaths what he does not himself believe. In the present case, if a surrender had really taken place, it must have been known to many individuals. Rule refused (a). (a) It was subsequently disco- years ago been surrendered by vered, that the term had many the trustees to Lord Anglesey. DAY v. WILLIAMS. MORGAN v. HARRIS. ed to the record ASSUMPSIT for work, labour, and materials. Parti- Where the culars had been delivered under a Baron's order, and had plaintiff annexalso been annexed to the record pursuant to the rule particulars varying from T. T. 1 W. 4. The particulars delivered stated the claim those delivered to be for work done and materials found during the months to the defendant, and, there being no evidence of the particulars delivered, got a verdict upon an item not included in the particulas delivered, the Court granted a new trial without costs; but refused to nonsuit the plaintiff, because the defendant was not in a condition to raise the question at the trial, and the point was not reserved. Exch. of Pleas, of March, April, and June, 1826, and in the month of 1832. MORGAN v. HARRIS. March, 1827; that annexed to the record contained these additional words: "Also for work done at different times, from about June, 1826, to August, 1827." At the trial, before Bolland, B., at the last Carmarthen Assizes, the plaintiff claimed for work done in August, 1826, a period not included in the particulars delivered, but comprehended within that annexed to the record; upon which it was objected, that the plaintiff was precluded, by the particulars delivered, from going into such evidence; but upon examining the particulars annexed to the record, the discrepancy was discovered, and, the defendant not being prepared to prove the delivof the particulars to him, the plaintiff had a verdict for 201. ery John Evans having obtained a rule to shew cause why a nonsuit should not be entered, or a new trial had upon the discrepancy in the particulars, which was proved by affidavit; and also why a new trial should not be had, the verdict being against the evidence-the learned Baron, after reading his notes of the evidence, certified that he was not satisfied with the verdict. And E. V. Williams shewed cause.-The variance between the dates in the particulars was not calculated to mislead the defendant, and in fact had not that effect; for he was prepared at the trial to meet the plaintiff upon the items claimed; and upon the balance of the evidence the plaintiff's claim was sustained. The defendant therefore is not now in a condition to claim relief; he offered all the evidence he could upon the items; and if the case goes down again, it must be attended with the same result; and the particulars may be amended. The particulars annexed to the record require no proof; Macarthy v. Smith (a); but, as it must be admitted that they (a) 8 Bing. 145; I Moore & S. 227. 1832. MORGAN v. HARRIS. were not the real particulars, undoubtedly, if the defen- Exch. of Pleas, dant had been in a condition to prove the delivery of the particulars to him, the plaintiff might have been shut out of the evidence. However, he was not in a condition to do this; and as no leave was reserved, and the point almost abandoned at the trial, the rule for the nonsuit cannot be made absolute. He also argued, that the verdict was supported by the evidence. J. Evans and Whitcombe, contrà.-If this rule be not made absolute for a nonsuit, the rule with respect to particulars, which was framed with a view to save the expense of proving the delivery of the particulars, will be defeated; for, it will in no case be safe to trust to the particulars which are annexed to the record. If the rule had been complied with, the defendant might have insisted upon a nonsuit, as there was no evidence to meet any claim inserted in the particulars; and if this consequence must have ensued had the plaintiff's attorney acted bond fide, surely he is not to benefit by his own wrong. Lord LYNDHURST, C. B.-If the defendant had been in a condition to raise the point at the trial, by shewing the discrepancy between the particulars delivered and those annexed to the record, and the point had been reserved, we might have ordered a nonsuit to be entered. But, even with that evidence, the plaintiff might have insisted upon his case going to the jury. We, therefore, have no power to enter a nonsuit, although the defendant is entitled to a new trial. We might have made the plaintiff's attorney pay the costs of the former trial if the rule had been framed with that view; but it is silent upon the subject of costs. BAYLEY, B.-If the true bill of particulars had been annexed to the record, and the point raised at the trial, 1832. MORGAN v. HARRIS. Exch. of Pleas, it might have been reserved, and, in that case, we might have interfered. When leave is granted to move to enter a nonsuit, it is done upon an understanding, that the plaintiff acquiesces in that course; for, if he pleases, he may insist upon having his case submitted to a jury. We can, therefore, do no more than grant a new trial, and the defendant may, if he pleases, move that the plaintiff's attorney pay the costs of the first trial. Rule absolute for a new trial, without costs. The plaintiff filed a declara tion, which was demurrer; the defendant imparled, and PIM v. WOODMAN. THE declaration in this case, which was filed the day after Hilary Term, was intitled generally as of Hilary bad on special Term, and stated that the plaintiff came into Court on the 11th day of January, and complained by bill, that the dethen demurred fendant was, on the 20th January, indebted to him. The specially-The defendant applied for and obtained an imparlance, and allow the plain afterwards, in Easter Term, demurred to the declaration, tiff to sign judgment, because assigning as special cause, that the bill appeared by the the imparlance declaration to have been exhibited before the cause of ac Court refused to did not estop the defendant from objecting to the form of the declaration. tion accrued. Mansell now applied for leave to sign judgment, treating the demurrer as irregular; and contended, that, by imparling, the defendant was estopped from objecting to the form of the declaration; and that it must be assumed that the bill was exhibited in proper time. He cited Thompson v. Collier (a), where it is said, that the defendant, "by entering on his defence, and by his imparlance, accepts (a) Yelv. 112. |