12 Vin. 180. 12 Vin. 193. any 2. Cafe against an executrix for a fimple contract debt. Defendant pleads four judgments against her, amounting to 937. and plene adminiftravit of all that came to her hands except 51. &c. and that at the time of fuing out the writ she had not, nor hath goods except to the value of 57. which are not fufficient to discharge the judgments. Replication, that he hath affets to pay the judgments, and alfo the debt and iffue thereon. If aflets are proved in her hands beyond the judgments, the may give in evidence the payment of other debts with thofe affets previous to the fuing out the writ. Smedley v. Hill, Executrix, 2 Blackft. Rep. 1105. (Q. b. 19) Riot Act. To (R. b) Affumpfit. 1. SPECIAL action on the cafe against a furgeon and apothe cary, for unfkilfully difuniting the callus of plaintiff's leg, The declaration laid the undertaking to cure as joint. The court were of opinion that the apothecary, who was firft fent for, declining to act alone, and attending in concurrence with the furgeon every time any thing was to be done, and affifting him in doing it, was fufficient evidence of a joint undertaking, and an exprefs joint contract need not be proved. Slater v. Baker and Stapleton, C. B. 2 Wilf. 359. 2. In affumpfit for a creditor's fhare under an order of commillioners of bankrupt for a dividend, the proceedings before the commiffioners are conclufive evidence of the debt. Brown & al. Executors of Gravalt, v. Bullen, Affignee of Fox, Dougl. 393. 3. In an action for goods fold and delivered, an acknowledg ment of the receipt of the goods,under the hand of the perfon to whom the perfon ordering them directs them to be delivered, is good evidence of a delivery to charge the buyer. v. Lawrence, 3 Term Rep. B. R. 454. DEBT (R. b. 4) Non Debet. Biggs & al EBT on bond for 1000% and interest against an executor. Pleas, non eft factum, folvit ad diem, & folvit poft diem, a transfer of 20,000%. stock made by the executor to the obligee, under the will of the obligor is evidence of payment, without expressly fhewing that the ftock was transferred for the purpose of fatisfying the debt. For, per Lord Kenyon, C. J., it has been a thousand times decided, that where a debtor gives a legacy to his creditor it it fhall be confidered as payment of the debt. Briton v. Cope, Executor, Peake's Ni, Pri. Caf. 30. (R. b. 7) Ejectment. 12 Vin. 195. 12. I, IN an ejectment on the feveral demifes of E. H. and T. U. Ante,(U. a). The plaintiff proved a devife of the remainder in fee of the (A. b. 56), premises to E. H. by her husband R. H.; that her husband when P10, 11, alive had conveyed them to B. for his life, who received the rents, and whofe fon entered and enjoyed them for three years after his father's decease as his devifee, when he delivered up poffeffion to E. H. at her request; but there was no proof of any receipt of rent fince then. The plaintiff's witness proved, on crofs examination, that E. H. had conveyed away her interest in the premises to the other leffor T. U. previous to the day on which both demises were laid, and that the deed was in court. But the plaintiff refused to produce it, not having had notice for that purpose. Afton, J. was of opinion, on the trial, that the plaintiff ought to give further evidence to afcertain the title under which he was to recover; and the plaintiff was nonfuited. The court of K. B. refused to set the nonfuit afide; for the parol evidence proved that E. H. had no title; and none could be proved by parol in T. U., the deed under which he claimed being in his poffeffion, and his non-production of it though in court, furnished a ftrong prefumption that it conferred no title upon him. Yates, J. contra. Roe on the feveral demifes of Haldane and Terry, v. Harvey, 4 Burr. 2484. 2. Though the defendant confefs leafe, entry, and oufter, yet he may deny that he is in poffeffion of the premises for which the plaintiff goes, and put him upon proving it; and if he cannot, he will be nonfuited. Smith v. Man, 1 Wilf.220. Bull. L. N. P. 110. S. C. 3. And in cafe the landlord has been made defendant, instead of his tenants, the plaintiff must prove the tenants in poffeffion; for the defendant does not by entering into the rule confefs himfelf to be landlord of any premifes but of fuch as were in poffeffion of fuch tenants. Ib. 4. However it has been faid, that if there be but one defendant as tenant in poffeffion, the plaintiff need not prove him in poffeffion; because if he be not, why did he enter into the rule? Doe ex dem. Jeffe v. Bacchus, Bull. L. N. P. 110. 5. This cafe has, however, been held not to be law, and the rule is to extend to the cafe where there is but one defendant as tenant in poffeffion, as well as where there are feveral; for the declaration makes a claim in general terms, which communicates but little intelligence to the party ferved with it, fo that if the defendant happens to have any land within the defcription in the declaration, he muft defend in order to preserve his own right; and it would be unjuft that a verdict thould be found against him though he can prove title to every acre of land in the parish of which he ever was in poffeffion. Goodright ex dem. Balch v. Rich and Govett, 7 Term Rep. B. R. 327. S. P. in C. B. Fenn ex dem. Blanchard v. S. Wood, Executor of W. Wood, Pull. & Bofan. 573. 12 Vin.200. Ante, (O. b. 12). Poft. (T. b. 18). 1. TRESPA (R. b. 15) Trespass. RESPASS for breaking and entering a close; plea, the general iffue; defendant wanted to prove part of the clofe the property of other perfons, by whofe order he entered into that part. Per Lord Kenyon, C. J.-When the land is not in the actual poffeffion of any perfon, as commons and the like, the defendant may prove the legal poffeffion to be in a third person, on the general iffue; but as in this cafe the plaintiff was in the actual occupation, though he had no legal right whatever, defendant cannot defend himself on thefe pleadings. Philpot v. Holmes, Peake's Ni. Pri, Caf. 67. 2. If A. be in poffeffion of part of an houfe, and B. of the other part, and an officer enters into A.'s part under a writ of diftringas against B's goods, which are not there; held, per Lord Kenyon, C. J. A, may maintain trespass against the officer for breaking and entering his houfe, and need not make any new affignment to a juftification under the writ againft B. Fallon v. Anderfon, Ib. 110. 3. But in trefpafs for breaking and entering the plaintiff's clofe called the Chapel-field. Plea, the general iffue. On the trial the plaintiff gave evidence of being in poffeffion at the time of the trefpafs committed. The Chief Juftice of Chester before whom the cause was tried, faid he would admit evidence to fhew actual poffeffion in the defendant, but refuted to permit him to give evidence of title and of right to poffeffion in himself under the general iffue. B. R. were of opinion that the evidence was improperly rejected, and fet afide the verdict. Dodd v. Kyffin, Term Rep. B. R. 354 S. P. Argent v. Durrant, 8 Term Rep. B. R. 403. where it is laid down broadly, that the defendant may, under the general iffue, give liberum tenementum either in himself or in another by whofe commands he entered, in evidence. See alfo Gilb. Evid. 258. cited Ib. per Lawrence, J. Re 4. Trefpafs for breaking and entering plaintiff's cow-house, and taking three cows; 2d count, for feizing them and detaining them four days. Plea, 1, not guilty; 2d, an entry by virtue of a precept from the fheriff under a writ of juflicies to attach the plaintiff by his goods to appear at the next county court. plication, admits that the writ of jufticies did iffue in manner and form, &c. but alleges that defendants, of their own wrong, and without the refidue of the caufe by them pleaded in bar, broke and entered, &c.; on which iffue was joined. On the trial it appeared that the defendants entered the cow-house and drove away the cows; and being asked what they took them for? one of them faid, that he was come for the cows for 71. debt, and 5 l. cofts for 7. S., and he fhewed his warrant. On the trial it was left to the jury to confider whether the defendants entered for the mere purpose of compelling an appearance, or for the purpose of of compelling the plaintiff to pay the debt and cofts; in which latter cafe they ought to find for him. A verdict being found for plaintiff, it was fet afide in B. R., on the ground of this being a mifdirection; for though defendants declared at the time of entering that they came for an illegal caufe, namely, to compel the payment of the debt, they might ftill juftify under the legal procefs by which they were entitled to diftrain in order to compel Crowther v. Ramsbottom & al. 7 Term Rep. an appearance. B. R. 654. I. (T. b. 6) Alia Enormia. Sed IN 'N trefpafs and falfe imprifonment, plaintiff offered to prove, as evidence of defendant's malice, that he was stinted in his allowance of food, though not laid in the declaration. per Lord Kenyon, C. J.-It has been many times determined that nothing can be given in evidence under the alia enormia except acts which could not be put upon the record. It is no part of the declaration. In actions for criminal conversation, and the like, things which could not with decency be put on the record, may be proved under the alia enormia; but this cannot. Lowden v. Goodrick, Peake's Ni. Pri. Caf. 46. 2. The declaration ftated, that defendant affaulted, &c. and imprisoned the plaintiff, and kept and detained, &c. from, &c. to, &c. during all which time the laboured under great pain of body and anxiety of mind, and became and was fick, weak, and diftempered. Lord Kenyon, C. J. refused to receive in evidence at the trial that while plaintiff was in prifon fhe caught the gaol fever, and communicated it to her husband, in confequence of which he died. Pettit v. Addington, lb. 62. (T. b. 10) Affets. that a fubmiffion to an award by an adminiftrator is 1. HELD no admission of affets, and the dictum of Afbburst, J. in Barry v. Rub, to the contrary, 1 Term Rep. B. R. 691. was overruled. Pearfon & al. Affignees of Scott, v. Henry, Administrator of Henry, 5 Term Rep. B. R. 6. 12 Vin. 205. 2. Affumpfit against an executrix, who pleaded judgments recovered and plene adminiftravit, except as to a fum infufficient to fatisfy them. Replication, that the judgments were obtained by fraud. It is not conclufive evidence of fraud that the judgments, as pleaded, were confeffed for more than the just debts, but defendant may fhew that they were entered up by mistake for more than was due, and that, that was made known to the plaintiff before the action brought. Peafe v. Naylor & Ux. Executrix of Hall, 5 Term Rep. B. R. 80. 12 Vin. 205. Ante, (A. b. 2), pl. 7, &c. (b. 18). 12 Vin.ero. pl. 40, &c. (T. b. 15) Bankrupt. See ante, (F), I. IN an action for money had and received by the affignees against a creditor of a bankrupt; the declaration by the 15), bankrupt of his motives for abfenting himself from his home, made at the time, is admiffible evidence to prove the act of bankruptcy. Bateman & al. Assignees of Howard, v. Bailey, 5 Term Rep. B. R. 512. (A. b. pl. 19. (P. 6. 12), pl. 5. (R. b), pl. 2. See alfo Martin v. Eyloe, 2 Str. 809. Bull. L. N. P. 40. 2. Whatever a bankrupt says before his bankruptcy is evidence explanatory of the act done by him. Ib. 3. But when a witness, in proving the bankruptcy, mentioned what had been faid by the bankrupt at different times refpecting his bad circumftances; per Lord Hardwicke, C. J.-" It is not "ufual to allow fuch evidence, unless it is concomitant with "facts; as, what the bankrupt fays when he is removing his books "or his goods, &c. but not elfe." Ambrofe v. Clendon, Caf. temp. Hardw. 287. 4. No release can make the bankrupt a witness to prove his own act of bankruptcy. Field v. Curtis, 2 Str. 828. S. P. Ewens v. Gold, Bull. L. N. P. 40. 5. Neither is he admiffible to prove any fact necefiary to fupport the commiffion. Chapman v. Gardiner, 2 H. Blackft. 279. Crofs v. Fox. Flower Sal. v. Herbert, Ib. (n. a). 6. To affumpfit the defendant pleaded his bankruptcy. At the trial defendant produced his certificate; to deprive him of the benefit of which it was ftated, that defendant had been a bank. rupt under a former commiffion, and not paid 155. in the pound under the latter. The proceedings under the former commiffion, and that the bankrupt had fubmitted to it, were held fufficient evidence of the former bankruptcy, without proving the trading, act of bankruptcy, &c. For though proof of all the facts neceffary to fupport the commiffion must be given, as againft other Vide Rex v. perfons, yet as the bankrupt furrendered under the firft commiffion, and fubmitted to it throughout, it is evidence as againft him. Haviland v. Cook, 5 Term Rep. B. R. 655. Perrott, 2 Burr.1122. 3215. J2 Vin. 211. (T. b. 18) Common. T |