ward v. Hague, gent. 4 Esp. 93. Law- 3. If a bill of lading contained a merence, J. 1802.

And see ante, A. 4.

38. Where a tender to the landlord is pleaded in bar to a cognizance for rent, and the defendant replies a subsequent demand, made by himself and a refusal, evidence made of a demand by the defendant's agent is not sufficient. Pimm v. Grevill, 6 Esp. 95. Ellenborough, C. J. 1807.

39. A tender made by A. & B. who are jointly liable, is invalidated by a subsequent refusal by A. Peirse v. Bowles and another, 1 Stark. 323. Ellenborough, C. J. 1816.

TIME.

morandum, "to be discharged in 14 days or pay five guineas a day demurrage," evidence of usage may be adduced to shew that working days, and not running days are to be understood. Cochran v. Retberg et alt. 3 Esp. 121. Eldon, C. J. 1800.

4. A patent dated 10th May, contained the usual proviso that a specification should be inrolled within one calendar month after the date. The specification was not inrolled till the 10th June. Held, that the month began on the 11th May, and included the 10th June. Watson v. Pears, 2 Campb. 294. Ellenborough, C. J. 1809.

S. P. Thomas v. Topham, Dyer, 218, b; Fra. Moore, 40, anon. but S. C.; Clayton's case, 5 Rep. 1, b. And sec

(And see ante, INSOLVENTS, pl. 1.) Glassington v. Rawlins, 3 East, 407.

A. How COMPUTED.

B. PRIORITY.

C. CONSEQUENCES OF GIVING

TIME.

A. How Computed.

1. Upon a charter party at so much per month, the jury found, that the customary calculation is by calendar months. Jolly v. Young, 1 Esp. 186. Kenyon, C. J. 1794.

B. PRIORITY.

5. Where goods are seized under a fi. fa. or the day on which the defendant commits an act of bankruptcy, it must be inquired which had the priority. Sadler, assignee of Knight, v. Leigh and another, 4 Campb. 195, 7. Ellenborough, C. J. 1815.

N. 21 Jac. 1. cap. 19. sect. 9. destroys the securities of creditors on goods "whereof there is no execution or extent sued and executed." And see Philips v. Thomson, 3 Lev. 191.

C. CONSEQUENCES OF GIVING

TIME.

2. But in a case upon the construction of 26 Geo. III. cap. 50, 28 Geo. III. cap. 20, and 29 Geo. III. cap. 53, it was ruled that lunar months must be intended, and that evidence of a custom 6. A creditor by giving further time amongst the revenue officers to compute to his debtor does not discharge the the voyage by calendar months was in-surety, except where he has disabled admissible. Lacon, knight, et alt. v. himself from suing. Hamilton v. StratHooper, et alt. 1 Esp. 246. Kenyon, ton. Abbott, C. J. 1819.

C. J. 1794.

And the court of K. B. discharged a rule for setting aside verdict. 6 T. R.

224.

And see Brown v. Spence, 1 Lev. 101; Com. Dig. Temps A; ante, ATTORNEY, pl. 24; BANKRUPT, pl. 39, 40, 1.

Sed vide Baker v. Catesby, Yelv. 100; Dormer v. Smith, Cro. El. 835; 1 Hawk. P.C.35; Dyke v.Sweeting, Willes, 585, 7, 8; Lang v. Gale, 1 M. & S. 111; Litt. Rep. 19.

And see ante, SURETY, A.

TITHES.

1. Upon a general agreement for the retaining of tithes for so much per annum, where no time is specified for the payment, interest cannot be de

288

TITHES.-TITLE.-TOLL.-TRESPASS.

manded. Shipley v. Hammond, 5 Esp. 13 Campb. 284. Ellenborough, C. J. 114. Ellenborough, C. J. 1804.

2. But it was held, that where the composition is payable on a day certain, the tithe owner is entitled to interest. Ibid.

1812.

A. (b) By assignee of a term.

2. The remote assignee of a term cannot prove his interest without proving

Sed vide ante, INTEREST, A. 3. The occupier is bound to tedd the the original lease, and all the mesne grass, before he puts it into grass cocks assignments. Crosby v. Percy, 1 Campb. for tithing; after which the parson is to 303. Mansfield, C. J. 1808. make it completely into hay. Newman,

Sed vide post, VENDOR AND Pur

esq. v. Morgan, 1 Campb. 305. Heath, CHASER, F. 12; Earl v. Baxter, 2 Bla. 1228. And see Doe v. Parker, Peake's

J. Chelmsford, 1808.

And the court of K. B. refused a new Ev.

trial. Ibid. and 10 East, 5.

Acc. Halliwell v. Trapper, 2 Taunt.

55, 6.

And see Smith v. Sambrook, 1 M. & S. 66.

4. No action therefore will lie against the parson for not taking away the tithe of grass set out in the swath. Moyes v. Willett, clerk, 3 Esp. 31. Buller, J. Chelmsford, 1799.

TOLL.

1. A waggon returning from London loaded with dung is exempted by 14 Geo. III. cap. 82. sect 3. from being weighed and charged for overweight, notwithstanding it carry home an empty basket 5. Where there is a private road and bottles, these not being goods or through a farm, the parson may use it merchandise within the meaning of 13 for carrying away his tithe, although Geo. III. cap. 84. s. 1. Chambers v. there be another public road nearly Eaves, 2 Campb. 393. Ellenborough, equally convenient, and the farmer do C. J. 1810. not, on that particular occasion, use the private road himself. Cobb, clerk, v. Selby, 6 Esp. 103. Macdonald, C. B. Maidstone, 1806.

2. It is not extortion to take toll from

a party who is exempted from the payment of toll, unless the ground of the exemption be stated at the time. Rer v. Hamlyn, 4 Campb. 379. Ellenborough, C. J. 1816.

(And see ante, ASSUMPSIT, C. (e); (And see ante, ABATEMENT B. (c);

E. (c) pl. 80, 1, 2, 3; PLEADING, pl. 1; post, TROVER, A.)

A. How PROVED.

(a) Under an Act of Parliament.
(b) By assignee of term.

A. How PRoved.

A. (a) Under an Act of Parliament.

1. A statute directing the manner in which a canal company shall convey land, enacts, that " every such convey

ance shall be valid." cure any defect of title.

PLEADING, B. (d).)

A. TO PERSONS.

(a) Where it lies.

(b) Pleadings.

(c) Evidence.

(d) Verdict.

B. TO PERSONAL PROPERTY.

(a) Where it lies.

(b) Pleadings.

This does not
Ward v. Scott,

(c) Evidence.

(d) Verdict.

1. A constable who receives a charge, under the alia enormia which might is justified in committing the party have been put upon the record, and charged, unless he colludes with the which it would not have been inconcomplainant. White v Taylor and sistent with decency to state. Lowden Simcoe, 4 Esp. 80. Le Blanc, J. 1801. v. Goodrick, Peake, 46. Kenyon, C. J. And see post, VARIANCE, pl. 39.

2. In the absence of evidence to that effect it is not a question for the jury, whether the constable exercised a proper degree of discretion. Ibid.

1791.

9. In trespass for assaulting plaintiff's son and servant, per quod, &c. it is sufficient to shew that the son lived in his father's family and under his protection; without proving actual service.

Jones

3. A father may maintain trespass per quod servitium amisit, against a per-v. Brown and another, Peake, 233, and son who seduces a daughter by whom his 1 Esp. 217. Kenyon, C. J. 1794. household work is done, although she be living in service, and do not sleep in the father's house. Mann v. Barrett, 6 Esp. 32. Heath, J. Chelmsford, 1806. And see ACTION ON THE CASE, A. (c).; post, pl. 9.

Vide tamen Gray v. Jefferies, Cro. El. 55; Barham v. Dennis, ibid. 770; Postlethwaite v. Parker, 3 Burr. 1878; Bennett v. Allcott, 2 T. R. 166, 8.

10. If, in an action against A. and B., the plaintiff prove a trespass in which 4. A master, upon the seduction of A. alone was implicated, he cannot afhis servant, may recover damages be- terwards offer evidence of a joint tresyond the mere loss of service, though pass. Sedley v. Sutherland and others, not related to her. Fores v. Wilson, 3 Esp. 202. Kenyon, C. J. 1800. Peake, 55. Kenyon, C. J. 1791.

Acc. Irwin v. Dearman, 11 East, 23. 5. A person who causes another to be impressed does it at his own peril, and is liable to an action if the party be not subject to the impress service. Flewster v. Royle, widow, 1 Campb. 187. Ellenborough, C. J. 1808.

11. Where a declaration for assault and battery contains but one count, the plaintiff, after proving one assault, cannot wave it, and go on to prove another. Stante v. Pricket, 1 Campb. 473. Ellenborough, C. J. 1808.

12. Where, upon an issue on son assault demesne, the defendant proves 6. Where A. is apprehended under a that he was assaulted before the day judge's warrant against B., neither the mentioned in the declaration, the plainofficers who take A., nor those who tiff cannot give in evidence an assault innocently receive him, can justify on the day without new assigning. under the process. Aaron v. Alexander, Randle v. Webb, 1 Esp. 38. Buller, J. Crowley, and Solomons, 3 Campb. 35. Chelmsford, 1793. Ellenborough, C. J. 1811.

N. In this case the declaration must,

7. An attorney acting in fair dis- it would seem, have stated one assault charge of his duty should not be made only. And see post, C. (c) pl. 34. a co-defendant in an action of trespass S. P. contra, Thornton v. Lyster, Cro. and false imprisonment brought against Car, 514. Sed vide Bull. Ñ. P. 17; his client. Sedley v. Sutherland and Tyler v. Wall, Cro. Car. 228; Anon. others, 3 Esp. 202. Kenyon, C. J. 2 Lord Raym. 1015. And see 2 Wms. 1800. Saund. 5, g. Barnes v. Hunt, 11 East,

U

451; Pyowell v. Stow, 3 Taunt. 425; Oakley v. Davis, 16 East, 82.

13. No proof of special damage in the loss of lodgers is admissible, unless the names of such lodgers be stated in the declaration. Westwood v. Cowne, 1 Stark. 172. Ellenborough, C. J. 181. And see Hartley v. Herring, 8 T. R. 130; Fenn v. Dixe, 1 Roll. Abr. 58; 1 Vin. Abr. 469; Bull, N. P. 7; 2 Wms. Saund. 411, n. (4).

A. (d) Verdict.

tion and conversion. Gosson v. Graham, 1 Stark. 55. Ellenborough, C. J. 1815. B. (b) Pleadings.

(And see post, B. (d) pl. 25.)

20. In trespass where the defence is a distress for rent, after a clandestine removal from the premises, it must be specially pleaded. Forneaux v. Fotherby and Clarke, 4 Campb. 136. Ellenborough, C. J. 1815.

B. (c) Evidence.

14. In trespass and assault against 21. Under a justification for shooting two, the jury should give a joint verdict plaintiff's dog, which avers that the to the amount which they think the dog was worrying and attempting to kill most culpable ought to pay. Brown v. defendant's fowl, and could not otherAllen and Oliver, 4 Esp. 158. Ellen-wise be prevented, it must be proved borough, C. J. 1802. that the dog when shot was in the act of killing. Janson v. Brown, 1 Campb. 41. Ellenborough, C. J. 1807.

Acc. Heydon's case, 11 Co. Rep. 5. 15. Where a personal injury has been occasioned by the wrongful act of the defendant, expenses which the plaintiff 84. Vere v. Lord Cawdor, 11 East,

And see Wright v. Ramscot, 1 Saund.

is under a legal obligation to pay, form 569. part of the damages to be assessed.

22. In trespass against a sheriff for

Dixon v. Bell, 1 Stark. 287. Ellenbo-seizing goods under a fi. fa. the warrant rough, C. J. 1816.

B. TO PERSONAL PROPERTY. (And see ante, Costs, 4, 6; MISNOMER, 5.)

B. (a) Where it lies.

is sufficient to connect the defendant with the acts of the bailiff under the general issue; and it lies upon the defendant to prove the writ, in support of a plea justifying under it. Grey v. Smith and another, sheriff of Middlesex, 1 Campb. 387. Ellenborough, C. J. 1808.

And see ante, ACTION ON THE CASE, A. (g).

16. After the expiration of the term, the lessee enters and removes a brick 23. Defendant justifies the cutting of building erected for a manufactory. He may justify the asportation, though he sels which had run foul of each other. ropes as necessary for disengaging vesis a trespasser quoad the re-entry. Pen-Under a new assignment, clear and ton v. Robart, 4 Esp. 33. Kenyon, C. wanton excess must be proved; not acts J. 1801. done under a fair impression of necessity. Hockless et alt. v. Mitchell, 4 Esp. 86. Kenyon, C. J. 1801.

And the court of K. B. set aside a

nominal verdict for the plaintiff on the asportation. Ibid. and 2 East, 88.

17. A. gratuitously permits B. to use his carriage. A. still remains in legal possession, and may maintain trespass for an injury done to the carriage whilst it is so used. Lotan v. Cross, 2 Campb. 464. Ellenborough, C. J. 1810.

18. Secus, if A. let his carriage to B.

for a certain time. Ibid.

And see post, TROVER, pl. 1. 19. Throwing down and breaking a jar will support a count for an asporta

PLEADING, F; RIVERS.
And see post, C. (b) pl. 29; ante,

B. (d) Verdict.

24. Upon the general issue in trespass for destroying a picture, which appears to be a scandalous libel, the plaintiff is entitled to recover merely the value of the canvas and paint. Du Bost v. Beresford, 2 Campb. 511. Ellenborough, C. J. 1810.

25. And where such a picture has been openly exhibited, qu. whether defendant might not justify, as abating 2 public nuisance. Ibid.

C. To REAL PROPERTY.

C. (c) Evidence.

30. Held, that a defendant cannot, under the general issue, prove title in a third person, and a command from him to enter. Philpot v. Holmes,

(And see ante, Costs, pl. 5, 6, 7; Dis-Peake, 67. Kenyon, C. J. 1791. TRESS, A. (b).)

C. (a) Where it lies.

S. P. contra, Argent v. Durrant, 8 T. R. 403, 5.

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

26. Where a tenant, after the expira-72. tion of his term, removes a brick build- 31. Where, upon a plea justifying ing, erected for the purpose of a manu- the abatement of a nuisance, the replifactory, though he may justify the as-cation, without taking issue on the jusportation, the entry is a trespass. Pen-tification, new assigns unnecessary vioton v. Robart, 4 Esp. 33. Kenyon, C.lence, the plaintiff cannot go into evidence to negative the nuisance. Pickering v. Rudd, 1 Stark. 56. rough, C. J. 1815.

J. 1801.

But the defendant having suffered judgment by default as to the entry, a nominal verdict for the plaintiff on the asportation was set aside. Ibid. and 2 East, 88.

C. (b) Pleadings.

27. A person renting a stall in the parish of A., which he uses occasionally, may justify under an easement claimed by the inhabitants of A. Fitch v. Fitch, 2 Esp. 543. Heath, J. Chelmsford, 1797.

And the court of K. B. refused a rule for a new trial. Ibid.

32. The keeping open of the doors of a house in which is a public billiard table, is a licence in fact to all persons to enter for the purpose of playing, and if the licence be abused the plaintiff must new assign. Ditcham v. Bond, 3 Campb. 525. Ellenborough, C. J. 1814.

33. In trespass quare clausum fregit tali die et diversis aliis, &c. the plaintiff may give in evidence any number of trespasses within the period specified. Hume v. Oldacre, 1 Stark. 357. Ellenborough, C. J. 1816.

28. A. is in the possession of a part of a house, and B. of the other part. An officer enters into A.'s part, under a 34. But if he proves a trespass antewrit against B.'s goods, none being rior to the first day, he must confine there. A. may maintain an action against himself to that one trespass. Ibid. the officer for entering his house, and And see ante, A. (c) pl. 12. need not make a new assignment to a 35. In an action for cutting down justification under the writ against B. trees, excepted out of a lease, it may be Fallon v. Anderson, Peake, 109. Ken-shewn, in mitigation of damages, that yon, C. J. 1792. the trees were applied towards purposes

29. Declaration for entering house for which the plaintiff had covenanted and staying therein three weeks, de- to furnish timber by assignment of his fendant justifies as to entering and stay-bailiff, if there were sufficient timber on ing 24 hours. The plea covers the whole; the demised premises. Rennell and and the plaintiff must new assign if he others v. Wither. Abbott, J. Winchester relies upon the excess. Monprivatt v. Spring Assizes, 1818. Smith and another, sheriff of Middlesex, 2 Campb. 175. Ellenborough, C. J. 1809.

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

36. Or that they were exchanged for other timber used for those purposes. Ibid. mutata opinione.