others. Warne, 2 Campb. 270. Ellenborough, C. J. 1809.

Sweeting v. Fowler and another, 1 Stark. 106. Bayley, J. 1815.

8. In the absence of such proof it will be presumed that the property in the note is in H. S. senior. Ibid.

And see Shadgett v. Clipson, 8 East, 328. Wilks v. Lorck, 2 Taunt. 399, and cases there cited. Dickinson v. Bowes, 16 East, 110. Kitchin v. Alder, 9. In an action against two as drawers 1 Chitty, Rep. 282. of a bill, it is sufficient to shew that two 2. But semble, that the principal persons, bearing the surnames of the dewould have been estopped from object- fendants, are in partnership, and that ing to the misnomer. Ibid. one of the partners acknowledged that

3. Declaration sets out an informa- the bill was drawn by them, without tion in chancery against T. Eamy, and shewing that the defendants bear the avers that afterwards the answer of T. Christian names assigned to them on Eamy was filed, &c. The latter allega- the record. Hodenpyl v. Vingerhoed and tion is proved by the production of an another; Chitty on Bills, 489. Abbott, office copy of an answer, entitled "the J. 1818. answer of T. Eamy," though signed T. Amey. Salter v. Turner, clerk, 2 Campb. 87. Macdonald, C. B. Horsham, 1809.

And see Hedd and Chaloner's case, 1 Leon. 146.

10. S. P. ruled contra as to the Christian names of the plaintiffs; and the plaintiffs were nonsuited. Acerro and others, v. Petroni, 1 Stark. 100. Ellenborough, C. J. 1815.

Sed vide Com. Dig. Abatement, E. 4. A misnomer of the plaintiff in the 18, 19, 20, 21; Bac. Abr. Abatement, declaration cannot be taken advantage D; Mayor, &c. of Stafford, v. Bolton, 1 of at the trial. It is sufficient that the B. and P. 40; 3 Anstr. 935; from which real plaintiff has a cause of action against cases it may be collected that, provided the defendant, and that the latter knows the identity of the parties be established, by whom he is sued. Boughton v. Frere, any misdescription, even of the plaintiff's 3 Campb. 29. Ellenborough, C. J. name, is immaterial. Et vide supra, pl.4.

1811.

Acc. Y. B. M. 27. E. 3, 12. And see Dickinson v. Bowes, 16 East, 110. Mayor, &c. of Stafford v. Bolton, 1 B. & P. 40.

NOLLE PROSEQUI.

5. William P. is asked, whether his name is not John P.; he answers in the 1. Where to a declaration on a joint affirmative; upon which process issues contract, one of the defendants pleads against him by the latter name, and his infancy, the plaintiff cannot enter a nolle goods are taken to compel an appear-prosequi as to the infant. He must disance. He cannot maintain trespass continue, and commence a new action against the officer. Price v. Harwood, against the adult. Chandler v. Parkes 3 Campb. 108. Ellenborough, C. J.

1811.

And see Clarke v. Istead, 1 Lutw. 894. Gould v. Barnes, 3 Taunt. 504.

6. So where process issues against a person who keeps a shop, over the door of which is written John P., he is estopped from saying that his name is William P. and not John P. Ibid.

And see Cole v. Hindson, 6 T. R. 234, 5.

and Dankes, 3 Esp. 76. Kenyon, C. J. 1800. Jaffray v. Frebain and others, 5 Esp. 47. Ellenborough, C. J. 1803.

And see Boulter v. Ford, 1 Sid. 76; S. C. 1 Keb. 284; Blake's case, ] Sid. 378; Noke v. Ingham, 1 Wils. 89; Teed v. Elworthy, 14 East, 210, 3 Taunt. 307.

a

2. Where in an action against A. and B., A. pleads his certificate, whereupon nolle prosequi is entered, an admission by A. before he obtained his certificate, is evidence against B. if it be shewn that A. and B. are partners. Grant v. Jackson, Bart. and others, Peake, 203.

7. Held (with liberty to move), that to entitle H. S. junior to sue upon a note payable to H. S. it is sufficient to prove that he is in possession of the instrument Kenyon, C. J. 1793. and directed the bringing of the action.

NON-RESIDENCE.

1. Total want of health is a sufficient excuse for an absence of twenty years. Scammell, qui tam v. Willett, clerk, 3 Esp. 29. Buller, J. Chelmsford, 1799.

NUISANCE.

A. OFFENSIVE TRADES.
(a) What shall be deemed.
(b) Where a public nuisance.
(c) Effect of acquiescence.

B. OBSTRUCTION IN RIVERS.
C. NON, REPAIR OF BRIDGES.
D. NUISANCE TO HIGHWAYS.
(a) Dedication to the public.
(b) Obstruction.
(c) Encroachment.

E. PLEADINGS.
F. EVIDENCE.

G. TRIAL.

A. OFFENSIVE TRADES.

A. (a) What shall be deemed.

1. The carrying on of an offensive

Sed vide 43 Geo. 2. cap. 59. § 5. as to the liability of counties to the repair of bridges built since 24th June 1803. And see Rex v. Inhabitants of Cumberland, 6 T. R. 194. S. C. in error, 3 Bos. & Pul. 354.

7. A bar across a bridge locked, extrade is not indictable, unless it be de- cept in times of flood, is conclusive that structive of the health of the neighbour- the public have only a right to use the hood, or render the houses uncomfort-bridge at such times. Rex v. Marquess able or untenantable. Rex v. Davey of Buckingham and others, 4 Campb. and another, 5 Esp. 217. Heath, J. 189. Ellenborough, C. J. 1815. Surrey, 1805.

A. (b) Where a public nuisance.

2. A nuisance which merely affects the inhabitants of three houses, is not indictable. Rex v. Lloyd, 4 Esp. 200. Ellenborough, C. J. 1800.

A. (c) Effect of acquiescence.

3. A person cannot be indicted for

8. If an indictment for not keeping such a bridge in repair, state that it is used by the subjects" at their free will and pleasure," the variance is fatal. Ibid.

D. NUISANCE TO HIGHWAYS.

D. (a) Dedication to the public.

9. A private court, situate by the side

continuing a noxious trade which has of a street, is left open to the public, and

19. No indictment will lie for obstructing a highway by the holding of a fair or market, after an uninterrupted user for 20 years. The King v. Smith et alt.

But see Daniel v. North, 11 East, 372. 12. But the erection of a bar to prevent the passing of carriages, rebuts the presumption of a dedication to the pub-4 Esp. 109. Ellenborough, C. J. 1802. lic: although the bar have been long broken down. Roberts v. Karr, 1 Campb. 262, n. Heath, J. Kingston, 1808.

And see Trustees of Rugby Charity v. Merryweather, 11 East, 375, n.

13. And the owner of the soil may at any time replace such bar. Lethbridge v. Winter, i Campb. 263, n. Marshall, serjeant, Somerset, 1808.

And the court of K. B. rule nisi to set aside verdict.

refused a
Ibid.

14. And though such a bar do not impede the passing of persons on foot, no public right to a foot way is acquired; as there can be no partial abandonment to the public. Roberts v. Karr, ubi supra.

And see 2 Saund. 175. n. 2.

D. (c) Encroachment.

20. If a person remove an encroachment, and leave that part of the road which was injured by the encroachment in a perfect state, his liability to repair ratione coarctationis ceases. Rex v. Skinner, 5 Esp. 219. Heath, J. Surrey, 1805.

21. A person charged ratione tenura, pleads that the liability to repair arose from an encroachment, which has been removed. It appears that the road has been repaired by the defendant for 25 years since the removal of the alleged encroachment.-This is presumptive 15. The burthen of repairing a high-evidence that the defendant repaired way is imposed on particular per- ratione tenure generally, and renders it sons by a public statute. This is a good necessary for him to shew the time when defence under the general issue. Rex the encroachment was made. Ibid. v. Inhabitants of St. George, Hanover- And see Rex v. Stoughton, 2 Saund. square. 3 Campb. 222. Ellenborough, 157, 160, n. 12; S. Č. differently reparte Ambler, 295; EVIDENCE, F. ported, 2 Keble; 665; Armitage ex(a) 133.

C. J. 1812.

S. P. dub. Rex v. Liverpool, 3 East, 88. And see Rex v. Bridekirk, 11 East, 304; Rex v. Lancashire, 2 East, 366, 9. 16. By statute, the care of a certain B. and communicating with C. by a cross22. A highway, leading from A. to street is vested in trustees, and other road, cannot be described as a highway trustees are appointed to manage all the leading from A. to C. and from thence roads in the parish except this street. The parish is not discharged from the Ellenborough, C. J. Essex, 1810. Rex v. Canfield, 6 Esp. 136. repair of the street. Rex v. Inhabitants of St. George, Hanover-square, 3 Campb. 222. Ellenborough, C. J. 1812.

And see Rex v. Sheffield, 2 T. R. 106.

to B.

E. PLEADINGS.

23. Where the description of a road

in an indictment is too general, as being equally applicable to other roads, the objection can only be taken by a plea in abatement. R. v. Hammersmith, 1 Stark, 357. Ellenborough, C. J. 1816. 24. An indictment against a parish for not repairing one side of road, should state that the parish is bound to repair ad filum viæ. Rex v. Inhabitants of the parish of St. Pancras, Peake, 219. Kenyon, C. J. 1794.

Acc. 2 Wms. Saund. 159, c.

31. The record of an acquittal, is not evidence to shew that the parish is not liable. Rex v. St. Pancras, ubi supra.

N. The ground of this decision is stated to have been "that some other parties might have indicted them, and those parties could not be bound by this record." A satisfactory reason for rejecting the evidence altogether seems to be, that the acquittal may have pro25. Semble, that it is not sufficient to ceeded upon the want of proof that the aver that a certain part of the road (set-road was out of repair. And see Bull. ting out the length and one half of the N. P. 245. breadth) is out of repair, and that the 32. An award is made against tenant inhabitants, &c. ought to repair it. Ibid. for years, finding a liability to repair 26. Indictment for non-repair of a ratione tenuræ. The reversioners and way, plea immemorial liability of others succeeding tenants are not bound. Rex as to all the ways, except one particular v. Cotton, 3 Campb. 444. Ellenborough, way, not the way in question. Held, C. J. 1813. Ante, pl. 10, 11. that it is not necessary to shew the excepted road to have existed immemorially. R. v. Ecclesfield, 1Stark. 393. Wood, B. York Summer Assizes, 1816.

F. EVIDENCE.

G. TRIAL.

33. To an indictment for non-repair of a highway, defendants plead liability of M. of Buckingham ratione tenure, absque hoc, that the defendants are li27. An acknowledgment by the de-able; the issue lies upon defendants, notfendant, that his trade was a nuisance, withstanding the traverse, and they are is admissible, though not conclusive, evi- entitled to begin and reply. R. v. Indence against him, upon an indictment habitants of the county of Southampton. for carrying on the same trade in another Holroyd, J. Sarum Lent Assizes, 1818. place. Rex v. Bartholomew Neville, Peake, 91. Kenyon, C. J. 1791.

28. The record of a judgment against the parish upon an indictment for not repairing, was held to be conclusive evidence of the liability of the parish to repair, unless fraud could be shewn. Rex v. St. Pancras, ubi supra.

OFFICE.

1. Semble, that the office of under or deputy usher of the court of king's bench is a distinct office from that of the chief usher; and that though the latter has the appointment of the deputy usher in the case of a vacancy, such appointment does not determine upon the death of the chief usher. Green v. Hewett, Peake, 182. Kenyon, C. J. 1793.

29. But in a subsequent case it was held, that where the township of A. sets up a custom for each township to repair its own roads, the record of a judgment against the parish at large, is only prima facie evidence against the custom, and that it may be rebutted by shewing that 2. An officer who has power to apthe general issue was pleaded to the point a deputy, cannot recover fees reformer indictment, without the concur-ceived by an intruder into the office of rence of A. Rex v. Eardisland, 2 deputy, where the fees payable to the Campb. 494. Le Blanc, J. Hereford, 1810. principal and the deputy are distinct. 30. But where it was subsequently Ibid. agreed that the vendor should deliver goods against ready money, applying the payments first in satisfaction of the old debt, it was held that the guarantee did not cover the goods supplied under the new arrangement. Ibid.

3. The inquisition taken in 1730, as to fees due to different officers, is conclusive evidence of the rights of such officers. Ibid.

And see ante, ASSUMPSIT, E. (2).

OFFICER.

A. APPOINTMENT.
B. AUTHORITY.

C. PRIVILEGES.

(a) As defendants.
(b) In other cases.

D. LIABILITY.

E. MILITARY OFFICERS.
(a) Half-pay.

A. APPOINTMENT. (And see MISDEMEANOR, pl. 25.)

7. Or take them immediately before a magistrate. Ibid.

8. But if he were not present at the affray, he cannot arrest without a warrant, unless there be sufficient ground for supposing that a felony is likely to ensue. Coupey v. Henley, ubi supra.

9. But it has been held that a peace officer may arrest a person charged with felony, or breach of the peace, though no such offence have in fact been committed. Williams v. Dawson, cited 3 Campb. 421. Buller, J. 1788.

10. S. P. as to a charge of felony. Hobbs v. Branscomb and others, 3 Campb. 420. Ellenborough, C. J. 1813.

11. And he may justify under the general issue, M Cloughan v. Clayton & Riding, Holt, 478. Bayley, J. Lancaster, 1816.

And see H. 7. H. 4. fo. 35. pl. 3; T. 11. E. 4. fo. 4. pl. 8; Bro. Faux Imprison1. When a substitute for a person ment, pl. 4, 25; Samuel v. Payne, chosen constable, is approved by the Doug. 359; Lidwith v. Catchpole, Calinhabitants and sworn in, the liability decott, 291; Handcock v. Baker, 2 Bos. of the principal is at an end; he cannot & Pull. 260; Ante, ACTION, pl. 67. be called upon to serve, though the substitute abscond. Underhill v. Witts,

3 Esp. 56. Kenyon, Ć. J. 1799.

B. AUTHORITY.

C. PRIVILEGES.

C. (a) As defendants.

12. A constable acting colore, not virtute, officii, is not protected by 24

2. A. being in the custody of a watch- Geo. II. cap. 44. s. 8. from actions man, B. encourages him to resist. The brought after the expiration of six watchman may imprison B. White v. months. Alcock v. Andrews, 2 Esp.

Edmunds and others, Peake, 89. Ken-1542. n. Kenyon, C. J. 1788. yon, C. J. 1791. And see Anon. 1 Stra. 446; Cle

3. Talking loudly in the street is not ments & ux. v. Keen, 2 Smith, 220; Welan offence which will justify a watch-ler v. Toke, 9 East, 364; Dive v. Manman in taking the party into custody. ningham, Plowd. 64. Hardy v. Murphey and Wedge, 1 Esp. 294. Eyre, C. J. 1795.

4. And the watchman, and a constable who adopts his acts, may be sued jointly for the imprisonment. Ibid.

But see 9 Wentw. 344, 6.

13. But upon the construction of a similar clause, in 50 Geo. III. cap. cxlix. it was held that the constable was protected where he believed he was acting within the powers of the statute. Graves v. Arnold, 3 Campb. 242. Mansfield, C. J. 1812.

5. A constable may, on his own authority, take a party into custody for a Theobald v. Crichmore, 1 B. & A. 227. mere assault, committed in his presence. 14. A constable who imprisons a perCoupey v. Henley, Whale, and Webster, son on suspicion of felony, without any 2 Esp. 540. Eyre, C. J. 1797. reasonable grounds, without warrant, and But see Savile 97, pl. 178. Post, without a charge from any other person, pl. 18. And see ante, FELONY, pl. 21. is within the statute 21. J 1. c. 12. and 6. And may keep the parties in cus- must be acquitted, unless the venue be tody until the affray is over. Churchill laid in the proper county. Staight v. v. Matthews and others, Selw. 866. Gee and Garver, 2 Stark. 445. Abbott, Bayley, J. Wells, 1808. C. J. 1818. Post, TRESPASS, A. (a).