9. But the circumstance of discount of the parties, need not be declared upon being claimed and allowed for prompt as a specialty. Clement v. Gunhouse, payment, is evidence of an appropriation 5 Esp. 83. Chambre, J. 1803. to a recent debt. Marryatts v. White, And see Plowd. 14. post, C. 15. 2 Stark. 101. Ellenborough, C. J. 1817. 16 Vin. Abr. Payment M. passim. It B. EXECUTION. B. (a) Proof of execution. 10. A payment made to a creditor generally, must be taken to be a payment on account of the subsisting debt. will, therefore, operate as a discharge of sureties pro tanto; and cannot be set 2. On non est factum pleaded, it is not by the creditor against a subsequent sufficient to prove an execution by a debt. Hammersley et alt. v. Knowlys, person who executed in the name of the esq. 2 Esp. 666. Kenyon, C. J. 1798. defendant, without proof of identity. 11. So if A. accept a bill for the ac- Parkins v. Hawkshaw, 2 Stark. 239. commodation of B., which B. discounts Holroyd, J. 1817. with his bankers, who, after the bill has 3. The execution of a deed is not imbeen dishonoured, and after they have peached by the attesting witness saying notice of the want of consideration, re- that he does not know whether the ceive money on account of B., exceed-blanks were filled up at the time, or ing the amount of the bill, A. is dis-not. England v. Roper, 1 Stark. 304. charged. March and another v. Hould- Ellenborough, C. J. 1816. itch, Chitty on Bills, 370. Abbott, J. 1818. B. (b) Ability of parties. 12. A. having a legal demand against B., and claiming also to be the equitable assignee of a debt due from B. to C., 4. A release by one of several assigreceives money from B. on account, with-nees of a bankrupt's estate, executed in out prejudice to such claim. The pay-the presence of the others and with ment must be applied to the legal debt. their concurrence, binds all. Williams Birch and another v. Tebbutt, 2 Stark. 74. v. Walsby, 4 Esp. 220. Ellenborough, Ellenborough, C. J. 1817. C. J. 1802. Acc. Taylor v. Okey, 13 Ves. Eland v. Karr, 1 East, 375. Sed vide Fair v. M'Iver, 16 130. Post, PLEADING, C. (b) DEED. A. WHAT SHALL BE. 180.! East, A. WHAT SHALL BE. (And see COVENANT, A. (a) 2.) 1. An agreement to which seals are affixed contrary to the original intention Acc. Lord Lovelace's case, W. Jones, 268. Ball v. Dunsterville, 4 T. R. 313. And see Anon. cited in 2 Freeman, 215, by the M. R. Co Litt. 231. a. 5. And parol evidence of the presence and concurrence of the non-executing assignees, is admissible. Ibid. 6. But where one of the co-assignees is absent, he cannot be bound without an authority under seal. Ibid. Harrison v. Jackson, 7 T. R. 207. acc. 7. Coverture may be given in evidence under non est factum. Lambert v. Martha Atkins and another, 2 Campb. 272. Ellenborough, C. J. 1809. Anon. per Holt, C. J. 12 Mod. 609, accord. S. P. adm: 3 Keb. 228, Cole v. Delawn. 8. Although defendant has executed deeds, and maintained actions as a feme sole; Davenport v. Nelson, widow, 4 Campb. 26. Ellenborough, C. J. 1814. 9. Or lunacy. Faulder v. Silk and another, executors of Jervoise, 3 Campb. 126. more fully reported, 1 Collinson, 390. Ellenborough, C. J. 1811. B. (c) Conditional execution. 10. Under non est factum, delivery as an escrow, may be given in evidence. Stoytes v. Pearson, 4 Esp. 255. Ellenborough. C. J. 1803. S. P. Coles v. Robins, B. N. P. 172. Bushell'v. Pasmore, 6 Mod. 217. And see Sav. 71. pl. 148. plaintiff, and proved to have been signed by the defendant. Barber v. Sargent, MSS. Burrough, J. Bodmin, 1817. C. How CONSTRUED. 16. A. and B. are tenants in common; A. devises to B. and C. in trust, B. conveys his undivided moiety in mortgage to C., but the deed contains subsequent general words, assigning all B.'s title at law and in equity. The latter words are referable only to B.'s moiety, and not to the trust estate. Doe d. Raikes v. 11. A., assignee ofa term, executes an assignment which remains in the hands of his attorney, who has a lien thereon for his charges, A. is not liable for the Anderson, 1 Stark. 155. Ellenborough, subsequent arrear of rent. Odell v. C. J. 1816. Wake and another, 3 Campb. 394. El lenborough, C. J. 1813. B. (d) Irregular execution. DEFAMATION. IN HIS PROFESSION. 12. A bail bond, sealed and de- A. WORDS WHICH SLANDER A MAN livered when only the penal part is filled up, is void, quoad the condition for appearance inserted afterwards. Powell, B. WORDS OF FELONY. assignee, sheriff of Middlesex, v. Duff, C. WORDS NOT IMPUTING A LEGAL 3 Campb. 181. Ellenborough, C.J. 1812. CRIME. Acc. Shelden v. Hentley, 2 Show. D. WORDS SPOKEN ON A LAWFUL 160, 1. Com. Dig. Fait. A. 1. v. Maillardet, 14 East, 568. ante, B. (a) 3. Weeks OCCASION. And see E. PLEADINGS AND EVIDENCE. 13. But where A. executed a bond, leaving blanks for the sum and the name A. WORDS WHICH SLANDER A MAN of the obligee, which were filled up by the agent employed to raise an indefinite sum on the security, it was held to be a good deed. Texira v. Evans, cited 1 Anstr. 228. Lord Mansfield, C. J. And see Keilw. 162, a. 164, 5.; Anon. Moore, 43. pl. 132; Sams v. Pitt, ibid. 359. S. C. 5 Co. 77. b. 78. a. S. C. Cro. El. 432. 11 Co. 27. Pigott's case, 2 Roll. Abr. 29. pl. 7.; Zouch v. Clay, 1 Vent. 185; Lady Cook v. Remington, 8 Mod. 237; Paget v. Paget, 2 Cha. Rep. 410: Oakley v. Davis, 16 East, 82, 4. Post. PLEADING, H. (b) 17. 4 Vin. Abr. Blanks. 14. A subsequent acknowledgment of an authority to a copartner to execute a deed, does not dispense with the production of the power of attorney. Steiglitz and another v. Egginton and another, Holt. 141. Gibbs, C. J. 1815. 15. Assumpsit does not lie on an instrument under seal produced by the IN HIS PROFESSION. (And see JUSTICES. C. (b).) 1. To "He deof an attorney, say serves to be struck off the roll," is actionable. Phillips, gent. v. Jansen, 2 Esp. 624. Kenyon, C. J. 1798. 2. But to say, "I have taken out a judge's order to tax A.'s bill-I will bring him to book and have him struck off the roll," is not actionable. Ibid. Sed vide Trowbridge v. Hard, Latch. 320. 3. To say of a tradesman, "He lives by swindling and robbing the public," is actionable; though the transaction alluded to amount only to a fraud. Smith v. Carey, 3 Campb. 461. Ellenborough, C. J. 1813. 4. But, in such case, the words must not be laid, innuendo" that the plaintiff was guilty of felony and robbery." Ibid. B. WORDS OF FELONY. that the plaintiff is an improper person to remain a member of their corps. Barbaud v. Hookham, 5 Esp. 109. El 5. A. calls B. a thief, but expressly lenborough, C. J. 1804. alludes to a transaction which amounts 11. A having summoned B., his masonly to a breach of trust. No action ter, before a court of conscience for will lie. Thompson v. Bernard, 1 wages, B. there utters words imputing Campb. 48. Ellenborough, C. J. 1807. felony to it. If this charge be neces6. So if it appear that the words sary to B.'s defence, no action lies. were spoken with reference to a mere Trotman v. Dunn, 4 Campb. 211. Elbreach of contract. Cristie v. Cowell, lenborough, C. J. 1815. / Peake, 4. Kenyon, C. J. 1790. Acc. Robins v. Hildredon, Cro. Jac. 65. And see Minors v. Leeford, ibid. 114. Bull. N. P. 5. Tibbs v. Smith, T. Raym. 33. And see R. v. Creevey, 1 M. and S. 273. E. PLEADINGS AND EVIDENCE. 12. In an action for words charged only once in a declaration, containing C. WORDS NOT IMPUTING A LEGAL but one count, evidence may be given of CRIME. 7. Semble, that words which merely charge the party with evil inclinations, are not actionable. Harrison v. Stratton, 4 Esp. 218. Ellenborough, C. J. 1803. And see Snag v. Gee, 4 Rep. 16, a. Bull. N. P. 5. Doctor and Student, Dial. 2. cap. 41. Anon. T. Raym. 20. D. WORDS SPOKEN ON A LAWFUL (And see LIBEL, A. (a), (b).) 8. Words spoken on giving a party in charge to a constable, or in preferring a complaint to a magistrate, are not actionable. Johnson v. Evans, clerk, 3 Esp. 32. Eldon, C. J. 1799. And see Anon. Dyer, 285. a. But an action lies" for imposing the crime of felony." Saunders v. Edwards, 1 Sid. 95; Anon. 1 Vent. 264; Wood v. Brown, 1 Marsh. 522. 6 Taunt. 169. 9. An action does not lie against a man who, upon reasonable grounds of suspicion, charges an innocent person with a theft. Fowler and wife v. Homer, 3 Campb. 294. Ellenborough, C. J. 1812. Sed vide Adums v. Moore, Selw. 830. And see ante, ACTION ON THE CASE, A. (g) 45, A. (h). 10. An action will not lie for information given by the serjeant of a volunteer the same words having been spoken on different occasions. Charlter, one, &c. v. Barrett, Peake, 22. Kenyon, C. J. 1790. 13. A count for slander, where the obnoxious words contain distinct charges, is supported by proof of words conveying any one of such charges. Flower v. Pedley, 2 Esp. 491. Eyre, C. J. 1796. 14. But if the unproved words affect and modify those which are proved, the variance is fatal. Ibid. DISTRESS. A. FOR RENT. (b) In what place. (e) Excessive distress. B. FOR DAMAGE FEASANT. (a) At what time. A. FOR RENT. A. (a) What may be taken. 1. Wearing apparel not in actual use, corps to the committee of management, may be distrained for rent. Bisset v. Caldwell, Peake, 36, and 1 Esp. 206. n. 2. S. P. ruled in Baynes v. Smith, A. (b) In what place. of (And see ante A. (d) 7. ACTION, E. (f) 76, 77. Post, PENAL ACTION, B.) 14. An action on the case will not lie 3. Goods removed for the purpose avoiding a distress for rent, cannot be followed by the landlord under 11 Geo.2. cap. 19. s. 1 and 2. unless the rent is in arrear at the time of the removal, and for detaining the plaintiff's cattle in the the goods are conveyed away in a clan-pound, after tender of amends made destine manner. Watson v. Main, 3 subsequently to the impounding. AnsEsp. 15. Eyre, C. J. 1799. combe v. Shore, 1 Campb. 285. MansFo-field, C. J.; and C. P. 1808. 4. S. P. doubted. Furneaur v. therby and Clarke, 4 Campb. 136. lenborough, C. J. 1815. And see 2 Saund. 284. n. 2. on Distresses 138. MSS. D. 54. PENAL ACTION. El Bradby Acc. 8 Co. 146. a. 15. Nor where the tender is made after the distress and before the impounding, the proper remedy in the latter case being replevin or trespass. Ibid. Acc. Lindon v. Hooper, Cowp. 411. see Shipwick v. Blanchard, 5. In trespass, a distress after a clandestine removal cannot be given in evi-And dence under the general issue. Ibid. A. (c) How dealt with. 6. Distress must not be appraised by party making it. Westwood v. Cowne 1 Stark. 172. Ellenborough, C. J. 1816. A. (d) Remedy of distreinee. (And see ante, ACTION, E. (f) 76, 77. Post, PENAL ACTION, B.) 7. An overpayment of rent under a distress cannot be recovered in an action for money had and received. Knibbsv. Hall, 1 Esp. 84. Kenyon, C. J. 1794. Recognized in Lothian v. Henderson, 3 Bos. and Pul. 530. S. P. Lindon v. Hooper, Cowp. 414. in the case of a distress damage feasant. And see Fitz. Avowry, 130. A. (e) Excessive distress. 6 T. R. 299. DONATIO MORTIS CAUSA. 1. The donee must have immediate possession of the gift, and uncontrolled dominion over it. Hawkins, adm. v. Blewitt, 2 Esp. 663. Kenyon, C. J. 1798. Acc. Smith v. Smith, 2 Stra. 955. Cont. Vinn. Inst. Imp. Com. lib. tit. 7. p. 228, 9. 2. Therefore if the donor command a person to put some securities into paper, and direct the paper to the donee, and charge him to deliver it to the donee after his death, and in the mean time to deposit it in a chest of which the donor keeps the key, nothing passes by the 12. In an action on the case for an gift. Bunn and another v. Mackham excessive distress, express malice need and wife, Holt. 352. Gibbs, C. J. not be proved. The excess, however, must be considerable. Field v. Mitchell,| And the court of C. P. set aside a 6 Esp. 71. Ellenborough, C. J. 1807. nominal verdict for the plaintiff. Ibid. B. FOR DAMAGE FEASANT. 1816. 4. But semble, that if the donor say to the donee, "fetch it away and I will make you a present of it," the property passes. Spratley v. Wilson, knt. Holt. 13. To justify the taking of cattle da- 10. Gibbs, C.J. 1815. B. (a) At what time. ECCLESIASTICAL COURTS.-EJECTMENT. 113 And see Drury v. Smith, 1 P. Wms. Į Sed vide contra Greene's case, 1 Leon, 404; Lawson v. Lawson, ibid. 441. 263. S. C. Cro. Eliz. 3. Fox v. Swann, Miller v. Miller, 3 P. Wms. 357, 358; Styles, 482, 3; Doe v. Batten, Cowp. Jones v. Martin, 3 Anst. 882. 243, 6, 7; Goodright v. Davids, ibid. 803; Roe v. Minshal, Bull. N. P. 96. S. C. Selw. 677. ECCLESIASTICAL COURTS. N. In this case the rent to Michaelmas was received on the 18th of Oct. and the demise laid on the 2d Nov. when the premises were still out of re1. The law and practice of the eccle-pair. Qu. Whether the decision did siastical court, are matters of fact, to be not proceed upon the usual clause of proved by witnesses. Beaurain, gent. re-entry, for not keeping the premises v. Sir Wm. Scott, 3 Campb. 388. Elin repair generally; vide post, s. 5. lenborough, C. J. 1813. Acc. Crogate's case, 1st resolution, 8 Co. 67, a. And see Bushell's case, Vaughan, 143. EJECTMENT. A. TITLE OF LESSOR. (a) Sufficient. (b) How proved. B. DEMISE. (a) Time of demise. (c) Actual, when to be proved. C. PREMISES, HOW DEScribed. (a) Situation. D. POSSESSION OF DEFENDANT. E. ACTION FOR MESNE PROFITS. (a) What recoverable in. (b) Evidence in. A. TITLE OF LESSOR. A. (a) Sufficient. 2. Held, that an encroachment made by a tenant, upon a common adjoining the demised premises, does not enure to the benefit of the lessor. Doe d. Colclough v. Mulliner, 1 Esp. 460. Kenyon, C. J. Stafford, 1795. 3. S. P. ruled contra. Doe d. Challnor v. Davies, 1 Esp. 461. Thomson, B. Shrewsbury, 1795. Acc. Bryan v. Winwood, 1 Taunt. 208. And see F. N. B. 179, K. Creach v. Wilmot, 2 Taunt. 160, n. 4. Ejectment will lie upon a clause of re-entry, which by the agreement, under which the tenant is let into possession, is directed to be inserted in the lease. Doe d. Oldershaw et alt, v. Breach, 6 Esp. 106. Macdonald, C. B. Maidstone, 1806. So ruled upon the authority of Bromfield v. Smith, 6 East, 530. And see S. C. 2 Smith, 520. Poole v. Bentley, 12 East, 168; Tempest v. Rawling, 13 East, 18; Doe v. Groves, 15 East, 244; Morgan v. Bissell, 3 Taunt. 65. 5. In a lease containing the usual power of re-entry, the tenant covenants generally to keep the premises in repair; and it is further provided, that within three months after notice given by the landlord, the tenant shall repair the defects specified in such notice. A forfeiture incurred by a breach of the former covenant, is not waved by a notice given under the latter. Roe d. Goatly v. Paine, 2 Campb. 520. Ellenborough, C. J. 1810. 1. It is stated to have been held, that the acceptance of rent which accrued subsequently to a forfeiture, incurred by And see F. N. B. 179, M. not repairing within three months after 6. A defendant who has paid rent to notice, is not an absolute waver. Fryett the lessor of the plaintiff may shew that d. Harris v. Jeffreys, 1 Esp. 393. his landlord has sold his interest in the Kenyon, C. J. 1795. premises. Doe d. Lowden v. Watson, |