And see Sullivan v. Matthews, Dougl. 110; Gilb. C. P. 14.

38. The plaintiff may, however, shew that it was obtained by fraud. Miller v. Aris, ubi supra.

Vide tamen Rowntree v. Jacob, 2 Taunt. 141; Sav. 17, pl. 45.

39. But a release after issue joined must be pleaded puis darrein continuance. Storey v. Bloxam, ubi supra.

40. So an award; comme semble. Ibid.

And see Graham v. Peat, 1 East, 244; Chambers v. Donaldson, 11 East, 72.

47. A party distraining off the demised premises, under 11 Geo. II. cap. 19. s. 1., is not entitled, by s. 21. to give the special matter in evidence under the general issue. Vaughan v. Davis, 1 Esp. 257. Rooke, J. 1794.

48. S. P. Furneaux v. Fotherby and Clarke, 4 Campb. 136. Ellenborough, C. J. 1815.

49. An executed agreement to destroy And see Thomlinson v. Arriskin, 1 letters containing proofs of the crime Com. Rep. 328; Freeman v. Bernard, imputed, is a good defence under the 1 Lord Raym. 248. general issue. Lane v. Applegate, 1

41. It is no defence that policies of Stark. 97. Ellenborough, C. J. 1815. insurance have been deposited with the 50. In trespass for unmooring the plaintiff, by way of collateral security, plaintiff's barges, the defendant cannot, upon which arbitrators have awarded a under the general issue, shew an aucertain sum to be due. Scott and others thority from the plaintiff. Milman v. v. Lifford, 1 Campb. 246. Ellenbo- Dolwell, 2 Campb. 378. Ellenborough, rough, C. J. 1808. C. J. 1810.

42. But if the amount had been actually paid, it would have been a discharge pro tanto. Ibid.

As to such justification, see Com. Dig. Pleader, 3 M. 31, 38, 39. And see ante, LICENCE; post, D. (a), pl. 53.

And the court of K. B. refused a new trial, moved for on the ground that evidence of the special defence had been improperly rejected, and that the action should have been case and not trespass.

S. C. not S. P. 9 East, 347. 43. In assumpsit upon an express promise to the mother of a bastard child to pay for its maintenance, it is no defence that the defendant has since discovered that the child is not his. Shaw Ibid. v. Whiteman, Peake, 29. Kenyon, 51. In trespass for driving the cart.

C. J. 1791.

44. Payment by bills is prima facie an answer to a money demand, without shewing that such bills were discharged. Hebden v. Hartsink, 4 Esp. 46. Kenyon,

C. J. 1801.

And see ante, INSURANCE, pl. 1.

B. (d) Not guilty.

45. Under this issue an executor need not prove his right to sue in that capacity. Loyd, executrix, v. Finlayson, 2 Esp. 564. Kenyon, C. J. 1797.

And see Cheeseborough v. Linton, Skinn. 551; APPENDIX.

against the plaintiff's chaise and killing his horse, the defendant should plead specially that the injury arose from the negligence of the plaintiff, or by mere accident, without the defendant's fault; under the general issue the cause of the accident would be immaterial. Knapp v. Salsbury, 2 Campb. 500. Ellenborough, C. J. 1810.

And as to such specia! pleas, see Latch, 13; Com. Dig. Pleader, 3 M. 31.

C. PRESCRIPTION.

52. Issue upon a prescription for a 46. Held, that in trespass quare clau-several fishery in four places in a navisum fregit, defendant cannot, under the gable river. It appeared that the right general issue, prove title in a third per- extended to two of the places only, in son, and a command from him to enter. one of which the trespasses had been Philpot v. Holmes, Peake, 67. Kenyon, committed. It was ruled, that the C. J. 1791. trespasses not having been committed in S. P. contra, Argent v. Durrant, 8 the excepted places, the variance beT. R. 403, 5. tween the prescription and the evidence,

was immaterial. Rogers and another 5. g. ; Barnes v. Hunt,11East, 451; Pyev. Allen, 1 Campb. 313. Heath, J. well v. Stow, 3 Taunt. 425; Oakley v. Chelmsford, 1808.

Davis, 16 East, 82.

And see Bousfield v. Blois, bart. sheriff of Essex, Serjeant's Inn, Sittings before M. T. 1818, reported in Manning's Exchequer Practice, 634.

E. (b) How proved.

53. Defendant justifies an entry upon the possession of his tenant, under a clause of re-entry in case an auction should be held on the premises. The plaintiff, admitting the demise, replies 57. Plea justifies cutting ropes as nede injuria, absque residuo causa. He cessary for disengaging vessels which cannot, under this general replication, had run foul of each other. To support give evidence of a waver of the forfeiture a new assignment of excess clear and by the acceptance of rent after notice. wanton injury must be proved. HockWarrall v. Clare, 2 Campb. 629. less v. Mitchell, 4 Esp. 86. Kenyon, Mansfield, C. J. 1811. C. J. 1801.

And see ante, pl. 50; LICENCE, 1.

E. NEW ASSIGNMENT.

E. (a) In what cases necessary. (And see post. WITNESS, C.)

F. PLEAS PUIS DARREIN CONTINU-
ANCE.

58. Semble, that an award made after issue joined, must be pleaded as since the last continuance. Storey v. Bloxam, 2 Esp. 504. Kenyon, C. J. 1796.

54. A. is in possession of a part of a See Thomlinson v. Arriskin, 1 Com, house, and B. of the other part. An Rep. 330, where an award post ult. cont. officer enters into A.'s part under a writ was pleaded in bar of the action geneagainst B.'s goods, none being there. rally. And see Hawkins v. Colclough, A. may maintain an action against the 1 Burr. 275; Brownl. Red. 181, 2; officer for entering his house, and need F. N. B. 181; Gilb. C. P. 101. not make any new assignment to a jus- 59. If that which is tendered as a plea tification under the writ against B. Fal- puis darrein continuance, have the form lon v. Anderson, Peake, 109. Kenyon, and semblance of a plea, the judge will C. J. 1792. allow it to be put in and tacked to the

55. Where upon an issue on son as-nisi prius record. Fitch v. Toulmin, 1 sault demesne, the defendant proves that Stark. 62. Ellenborough, C. J. 1815. he was assaulted before the day men- Acc. Lovell v. Eastaff, 3 T. R. 554 ; tioned in the declaration, the plaintiff Prince v. Nicholson, 5 Taunt. 337; 1 cannot give in evidence an assault on Marsh. 70.

the day without new-assigning. Randle 60. But the court will order a dev. Webb, 1 Esp. 38. Buller, J. Chelms-murrer to such a plea to stand for the ford, 1793. ibid.

S. P. contra, Thornton v. Lyster, Cro. Car. 514. Sed vide Bull. N. P. 17; Tyler v. Wall, Cro. Car. 228; Anon. 2 Lord Raym. 1015. And see 2 Saund.

first paper day.

Doe d. Martin et alt. v. Watts, 2 Esp. C. PAYMENT OF MONEY INTO COURT.

5. A demise of lands at an entire rent void for part, is void for the whole. L. Doe d. Griffiths v. Lloyd, 3 Esp. 78. Kenyon, C. J. 1800.

6. Where tenant for life, bound to reserve the best rent, lets the premises

(b) Attendance and demeanour

of parties.

(c) Particular defences, where
excluded.

(d) Jury.
(e) Counsel.

N. NEW TRIAL.

A. COMMENCEMENT OF ACTION. (And see PENAL ACTION, pl. 54.)

And see Lovat v. Lord Ranelagh, 3 V. & B. 30; Mann. Exch. Pra. 214, 5.

6. Giving credit to the opposite party, is not an admission that the sum is due. Miller v. Johnson, 2 Esp. 602. Eyre, C. J. 1797.

7. A plaintiff is not precluded from recovering a demand included in his particular, by the circumstance of his having omitted to make such demand in a bill sent to the defendant before action brought. Short v. Edwards, 1 Esp. 374. Kenyon, C. J. 1795.

8. If the attorney upon being called 1. The filing of the bill is the com-upon for a particular, refer to an acmencement of an action against an attor-count delivered before the commenceney; and payment after bill filed, though ment of the action, this is a virtual before notice, is insufficient. Goddard compliance with the order, and the and another v. Benjamin, one, &c., 3 party is bound by the account. Halchet Campb. 331. Ellenborough, C. J. 1813. and wife v. Marshall, Peake, 172. 2. And where the hour on which the Kenyon, C. J. 1793. bill was filed is shewn, the production of a receipt, bearing date the same day, is no bar, without proof that the money was paid before that hour. Ibid.

B. PARTICULAR OF DEMAND.
B. (a) In what cases requirable.

3. In an action for the recovery of the deposit paid on the purchase of an estate, the vendor is entitled to a statement of the objections of the vendee. Squire v. Tod and others, 1 Campb. 293. Mansfield, C. J. 1808.

B. (b) Where sufficient.

4. Where there has been an account current between the parties, the particular should specify the matters for which credit is meant to be given. Mitchell v. Wright, 1 Esp. 280. Kenyon, C. J. 1795.

5. And stating the debtor side of the account only was declared to be a contempt, for which the attorney would be probably ordered to pay costs on both sides. Adlington v. Appleton, 2 Campb. 410. Ellenborough, C. J. 1810.

78.

And see Etches v. Fellowes, Wightw.

9. The plaintiff's particular was for horses sold and on an account stated. The defendant paid money generally into court sufficient to cover the latter demand. The evidence to support the former shewed, that the defendant was liable only for the price of horses sold by him for the plaintiff. Held, that the plaintiff was precluded from recovering the money received to his use; and that he could not, by applying the money paid to the counts for horses sold, upon which he had given no evidence, entitle himself to a verdict on the account stated for the balance. Holland v. Hopkins, 3 Esp. 168. don, C. J. 1800.

El

And the court of C. P. discharged a rule for setting aside nonsuit; but gave leave to amend on payment of costs. 2 Bos. and Pull. 243.

10. If the plaintiff, in his particular, demand money due on a promissory note only, which note appears to be on an improper stamp, he cannot resort to the money counts. Wade v. Beasley, 4 Esp. 7. Kenyon, C. J. 1801.

But see Brown v. Hodgson, 4 Taunt. 189.

But Le Blanc, J. and Thompson, C. B. 11. If a payment made on account of (Whaley v. Banks,) 1814, and Bur- the defendant to A. is stated in the rough, J. (Pemberton v. Bellington) plaintiff's particular to have been made 1816, refused to order the plaintiff to to B., it is sufficient; unless the destate the creditor side of the account. fendant will state to the court by affi

davit, that he has been misled by the

particular. Day and others, assignees, C. PAYMENT OF MONEY INTO COURT. v. Bower, 1 Campb. 69, n. Ellenborough, C. J. 1806.

12. In an action against a factor for not accounting, and for goods sold, a bill of particulars, headed " A. to B." simply stating the quantity and value of the goods, is applicable to either count. Hunter v. Welsh, 1 Stark. 224. Ellenborough, C. J. 1816.

B. (c) Effect of.

13. If the plaintiff's particular contain items which are owing from the defendant and his partner, who is not a sued, the nonjoinder may be pleaded in abatement, though part of the demand be due from the defendant solely. Colson et alt. v. Selby, 1 Esp. 452. Kenyon, C. J. 1796.

And the court refused a rule to set aside nonsuit. Ibid. and Tidd, 595.

14. Under a particular, specifying. merely a demand on a promissory note, the plaintiff may recover interest. Blake,

C. (a) In what cases allowed.

(Quidam existimaverunt neque eum qui decem peteret, cogendum quinque accipere et reliqua persequi: neque eum qui fundum suum diceret, partem dumtaxat judicio persequi; sed in utrâque causà humamus facturus videtur prætor, si actorem compulerit ad accipiendum id quod offeratur: cum ad officium ejus pertineat lites diminuere. D. 12, 1, 21.

And see post, Set off; Tender; defendant being at liberty to pay money into court in all cases in which a set off or a tender would have been available, that is, where the duty for which the action is brought consists of a sum certain, or of a demand capable of being reduced to a sum certain by simple calculation. Ante, BANKRUPT, pl. 99.)

C. (b) Effect of.

executor of Dale, v. Lawrence, 4 Esp. (See ante, INSURANCE, pl. 217; post, 147. Ellenborough, C. J. 1802. TENDER, E.)

any

15. Though the plaintiff is restricted

in his own evidence to the contents of 18. Where the declaration contains a his particular, he may avail himself of count upon a special contract, bringing evidence produced by the defendant, in money generally is an admission of to increase his demand. Hurst v. Wat- the contract. Guillod v. Nock, 1 Esp. kis, 1 Campb. 68. Ellenborough, C. J. 347. Eyre, C. J. 1795. 1807.

But see Phill. Evid. 149; ante, LANDLORD and TENANT, pl. 15.

S. P. Gutteridge v. Smith, 2 H. Bla. 374; Watkins v. Towers, 2 T. R. 280; Jenkins v. Tucker, 1 H. Bla. 90; Ben16. Payment of 51. into court on a nett v. Francis, 2 Bos. & Pul. 550; count for goods sold and delivered, after Muller v. Hartshorn, 3 Bos. & Pul. 556; the delivery of a particular demanding Bryan v. Williamson, Tidd, 627; Yate the price of wool sold by the plaintiff's v. Willan, 2 East, 128.

broker, is no admission of the plaintiff's 19. Payment of money into court on a interest in the goods beyond the 51. declaration for goods sold, does not, Blackburn v. Scholes and another, 2 however, admit the plaintiff's interest Campb. 341. Ellenborough, C. J.

1810.

in the goods beyond the sum paid in.
Blackburn v. Scholes and another, 2
Campb. 341. Ellenborough, C. J. 1810.
And see Godsall v. Boldero, 9 East,

17. Particular specified a bill for 601. bearing date on a certain day. The evidence was of a bill of 631. dated on a 72, 9. different day in the same year and month.

20. Although the plaintiff had preThe variance was held to be immate-viously delivered a particular, specifyrial. Dunn v. Thomas. Abbott, J., ing the parcel of goods in respect of Cornwall Spring Assizes, 1818.

which the action was brought.

Ibid.

21. So where defendant pleads infancy, payment of money into court is no admission of the plaintiff's right of action,

R