of the said borough for the time being, by the mayor, bailiffs, and burgesses of the said borough for the time being (except at such times when such election hath been otherwise regulated, directed, and appointed by any bye-law in that behalf made and then in force) and that during all the time last aforesaid, and before the charter of Car. 2., there were divers times when no bye-law of the said borough in anywise regulating, directing, or ordering, the election of a common council-man existed, or was in force. The defendant then pleaded an election into the office of a common council-man, on a vacancy in November, 1791, by the mayor, bailiffs, and burgesses; averring, that at the time of his election there was no bye-law regulating or directing the election of common council-man in existence. To this plea there was a demurrer. Wood, in support of the demurrer, contended that the plea was bad, because the defendant had not alleged positively in what manner the election of a common council-man was made before the charter of Car. 2.; for he had introduced in the usage an exception, which is as large as the usage itself, and destroys it. The charter of Will. 3. refers to an usage in fact: how that usage originated, whether in a bye-law or otherwise, is immaterial. The charter, by referring to and adopting it, has given it the same force as if it were therein incorporated. But, it not being stated in the charter what the old usage was, the defendant should have averred in positive terms what he conceived that usage to have been on which he intended to rely; instead of which he has only stated, that before the charter of Car. 2. the common council-men were chosen by the mayor, bailiffs, and burgesses at large, except when they were elected in some other manner: this mode of pleading therefore is altogether inconclusive, and bad. Gibbs, contrà.-The charter of W. 3. refers to the right of election, as it existed before the charter of Car. 2.; and whatever that right was, it was adopted by the charter of W. 3. According to the argument of the other side, that this latter charter related merely to the usage in fact before the charter of Car. 2. it would follow that the mode of election might be governed by the last election which had in fact taken place immediately preceding that charter, although directly contrary to the usage which had prevailed for ages before. Suppose the last election before the charter of W. 3. had been made by a select body under a bye-law, which bye-law had been made between that VOL. IV. Rr and 1792. The KING against BIRCH. 1792. The KING against BIRCH. and the election immediately preceding it, when the corporation at large had elected, it could never have been intended that such a mode of election was to be adopted by the charter of W. 3. because it says that the common council men shall be elected by such persons, and in such manner, &c. as had been used and accustomed before the charter of Car. 2.; and it cannot be contended that such an instance as that would amount to an usage. Lord KENYON, Ch. J.-Suppose an usage had prevailed for two centuries before the charter of Charles the Second, for a select body to make the election under a bye-law, evidence of that would be excluded by this mode of pleading; for the jury could not inquire how long such an usage had prevailed, if it originated under a bye-law. BULLER, J.-The defendant should have shewn precisely in his plea what was the usage in fact before the charter of Charles the Second, that the other party might know on what fact to go down to trial. He has only stated, that before that charter the usage was for the mayor, bailiffs, and burgesses, to elect, except at those times when there was a bye-law in force to vary the mode of election; but he has not said in his plea whether or not there existed at that time any bye-law. GROSE, J.-The charter of Will. 3. refers to the usage in fact before the charter of Charles the Second, however it may have originated. Gibbs then asked leave to amend the plea; which the Court said might be done under the authority of a case from Yarmouth (a). (a) Vid. R. v. Blachford, 4 Burr. 2147 Monday, May 7th. A bill of Middlesex may be returnable the same day that it is sued out. THE OXLADE against Davidson. HE bill of Middlesex in this case was sued out on the 18th of February last, returnable on the same day: for which reason a rule was obtained calling on the plaintiff to shew cause why the writ and the subsequent proceedings should not be set aside, on the authority of Green v. Rivet (a), where it was said that a bill of Middlesex could not be returnable the same day that it was sued out. On shewing cause against this rule it was said, that whatever might have been the practice formerly, it was in every day's experience now to sue out writs, returnable as the present is; and that the Court had repeatedly refused to set aside such writs. Per Curiam.-The practice is as has been stated by the plaintiff's counsel. But, as the defendant was misled by the case in Lord Raymond, they Discharged the rule without costs. ALEXANDER against MACAULEY and Another. THIS against the escape of a pri soner on mesne process, the plaintiff was HIS was an action upon the case, against the defendants In an action as sheriffs, for an escape. The declaration stated, that the sheriff for the plaintiff had a good cause of action against his creditor, that he sued out a latitat against him, that he was arrested by the defendants, &c.; and that the defendants suffered him to escape, nonsuited, be&c. At the trial before Lord Kenyon the plaintiff was nonsuited, because he could not prove any debt against the prisoner who had escaped. Shepherd moved on a former day for a rule to shew cause why the nonsuit should not be set aside, on the ground that, at ail events, the plaintiff was entitled to nominal damages. Cause was now shewn by Erskine and Wigley; who relied on the case of Gunter v. Cleyton (a) as deciding the present. The Court were clearly of opinion, on the authority of the case cited, that the nonsuit was right. cause he could not prove any not debt against the Rule discharged. (a) 2 Lev. 85. THIS GORDON against AUSTIN and Others. HIS was an action on a promissory note made by the firm of Austin, Strobell, and Shirtliff, who were declared against by the names of William Austin, Robert Strobell, and William Shirtliff; the two last of whom were stated to be outlawed. The defendant Austin pleaded non assumpsit. At the trial before Lord Kenyon at Guildhall, the note was given in evidence, signed by the name of the firm in the manner first mentioned; and it was proved that the partnership consisted of Rr 2 tween the contract declared upon and that proved. the 1792. GORDON against AUSTIN. the present defendants William Austin, Daniel Strobell, and William Shirtliff; whereupon it was contended that the plaintiff ought to be nonsuited, on the ground of a variance between the contract declared upon and that proved, it appearing to be between different persons. The cause however was suffered to proceed, and a verdict was taken for the plaintiff. To set aside which, Russell obtained a rule nisi on a former day, on the same ground that he had maintained at the trial; and the case of Shovel v. Evance (a) was cited. Erskine now shewed cause, insisting that the defendant Austin, who was properly described in the declaration, could not take advantage of this variance with respect to the names of the other parties upon the plea of the general issue. Such an objection can only be pleaded in abatement by the parties misnamed. But Austin alone having pleaded the general issue upon the record, the question at nisi prius was, Whether he had promised or not?-the proceedings were no longer joint, but were severed by the outlawry. As to the case of Shovel v. Evance, if the party cannot plead the misnomer of his companion, still less shall he be permitted to avail himself of it on the general issue. Russell, contrà, was stopped by the Court. Lord KENYON, Ch. J.-At the trial I considered this like a misnomer of a defendant, who must in general cases plead in abatement. But on further consideration I ain of opinion that, as this is an action on a written instrument, the objection was well founded at nisi prius, because the evidence produced did not prove the instrument declared on. BULLER, J.-If this case be considered without the outlawry, it is perfectly clear; and the outlawry is only stated as an excuse on the record for not proceeding against the party outlawed. Then it stands thus: The plaintiff declared upon a note given by three persons, describing them; and the note given in evidence was made by different persons; the evidence therefore did not support the contract declared upon. Per Curiam, Rule absolute. (a) I Lusw. 36. LE то LE GRANGE against HAMILTON. 1792. Monday, May 7th. dum, indorsed which was con at the end of debt on bond, the defendant, after craving oyer of the condition, and of a memorandum indorsed thereon, pleaded A memoranusury. The condition of the bond was for the payment of 1007. on a bend, within interest at 5l. per cent. in payments of 201. yearly, by ditioned for the four quarterly payments of 51. each, until the whole should be payment of Iool. by quarpaid. The indorsement was as follows: "That it is the true terly payments of 51. each, and "intent and meaning of the parties, that, at the expiration of interest at 5. "each and every year, the year's interest due, is to be added to per cent." that "the principal sum; and then the 201. received during the each year the 66 course of the year to be deducted, and the balance to "main as principal; and so continue yearly until both prin"cipal and interest be fully paid." At the trial at Guildhall, then the 201 before Lord Kenyon, the defendant obtained a verdict; to set course of the which aside a rule nisi was granted in the beginning of this term, on the ground that the memorandum did not disclose an usurious contract. re year's interest due was to be added to the principal, and received in the year was to be the balance to remain as principal," was held not to be usuri deducted, and ous. Bower and Reader now shewed cause, contending, That this appeared to be usury upon the face of the memorandum, which [2 H. Bl. 144.] was to be taken as part of the original transaction: for the obligee would by this agreement have, over and above the interest of 51. per cent. upon the whole sum, the farther interest which might accrue upon the respective quarterly payments made in the course of the year. By the terms of the contract, the parties were to come to a settlement at the end of the year, when the year's interest was to be added, which can only mean the year's interest on the whole sum; for no other is specified: and this is to be done, notwithstanding part of the principal had been before paid. No deduction was to be made on account of those payments until the year's interest had been paid; for the memorandum says, That after the year's interest had been added, then the quarterly payments are to be deducted. Besides, if this were not the intention of the parties, the memorandum would be altogether nugatory, and would not have been added. Erskine and Gibbs, contrà.-The argument on the other side is founded upon the omission of the word due in the memorandum, and the addition of the words upon the whole sum. The words of the memorandum are "the year's interest due is "to be added to the principal sum;" and that is supposed to mean the year's interest upon the whole sum. Now the word due must be taken to confine the meaning to what interest should by |