ORDER OF REMOVAL,
An order of removal may be executed
a year after it is signed, if the pauper
circumstances be not altered in the in-
terval. R. v. the Inhabitants of Llan-
winio, Mich. 32 Geo. 3.
2. An alteration in an order of removal
by one justice in the presence of the
other before it is delivered to the pa-
rish officers, does not vitiate it.
An order of removal signed by two
justices separately, and in different
counties, is only voidable, not void;
and the parish wishing to avoid it,
must appeal to the next Sessions. R. v.
the Inhabitants of Stotfold, E.32 Geo. 3.
596
1. If notice to quit at Midsummer be gi-
ven to a tenant, holding from Michael-
mas, he may insist on the insufficiency
of the notice at the trial, though he
did not make any objection at the time
it was served, but merely said, "I pay
"rent enough already, and it is hard to
use me thus." Oakapple v. Copous,
Trin. 31 Geo. 3.
361
2. Where the tenant of an estate holden
by the year has a dwelling-house at
another place, the delivery of a notice
to quit to his servant at the dwelling-1.
house is strong presumptive evidence
that the master received the notice,
and ought to be left to the jury. Jones
d. Griffiths v. Marsh, Mich. 32 Geo. 3.
464
See Practice, No. 29, 31, 33.
OCCUPANT.
See Special Occupant.
See Settlement by Estate.
If on an appeal against overseers' ac-
counts the Sessions disallow some of the
items, and do not order the overseers
to pay the balance to the successors,
two justices out of sessions may
inforce payment of the balance; and
if they refuse to interfere, this Court
will grant a mandamus to compel them
to hear the complaint. R. v. Carter,
E. S1 Geo. 3.
246
2. Where a parish consisted of two se-
parate districts, each of which imme-
morially made a separate rate, but the
money when raised was blended to-
gether, in one joint fund, though ap-
plied in certain proportions, and the
Sessions did not find it as a fact that
the parish could not reap the benefit
3 I
of the 43 Eliz. it was held, that the
districts were not entitled to maintain
their own poor separately, though
since the year 1648 they had constant- 6. The sheriff need not allege in his re-
ly had, on the whole, more than four
overseers, some of whom were cho-
sen separately by the hamlet; and
though the hamlet part had imme-
morially had a constable of its own,
and since 1709 certificates had been
granted to and from the hamlet to
third parishes, and orders of removal
made to and from it. R. v. T. Newell,
E. 31 Geo. 3.
turn to the writ of proclamation that
"the persons proclaimed did not ap-
'pear and render themselves," though
he must in his return to the exigent.
ib.
7. The names of the coroners need not
be subscribed to the judgment of out-
lawry: if it appear on the record that
the judgment of outlawry was given
by them, it is sufficient.
3. An order of justices which appointed 8.
A., "being a substantial householder
" of the parish of B., to be overseer of
"the poor for the hamlet of C. in the
"said parish," was confirmed gene-9.
rally at the sessions with costs; and
both those orders were affirmed here.
R. v. Morris, Hil. 32 Geo. 3. 550
4. Overseers for a parish need not be
appointed by one and the same instru-
ib. 552
It need not appear on a record of out-
lawry that the capias and exigent were
sealed by the justices of Oyer and Ter-
miner, &c.
10. A person outlawed on an indictment
for sheep-stealing is ousted of clergy
by 14 Geo. 2. c. 6. s. 1.; " outlawry"
being a "conviction" within the mean-
ing of that statute.
See Variance, No. 4.
See Practice, No. 13, 14.
1. In a record of outlawry it appeared by
the writ of proclamation and the re-
turn to it that the prisoners were re-
quired to render themselves to the she- See Overseer, No. 2, 3, 4.
riff, so that he might have their bodies
before the justices, &c. at the return of
the writ, and held good. R. v. Yan-
dell, Hil. 32 Geo. 3.
2. If one exigent be awarded against the
principal and accessary together, it is
error only as to the latter.
3. The stat. 25 Ed. 3. st. 5. c. 14. does
not apply to a Court of Oyer and Ter-
miner and gaol delivery.
ib.
4. If it appear on the record that the
writ of proclamation was delivered to
the sheriff three months before the re-
turn of it, it is sufficient, though it be
not so expressly alleged.
ib.
5. The writ of proclamation required
the sheriff to proclaim the parties in
1. The heir may be charged as assignee
in covenant which runs with the land.
Derisley v. Custance, Mich. 31 Geo. 3.
75
2. An infant cannot pray the parol to
demur in any other stage of the pro-
ceeding than at the time of pleading. ib.
3. A plea of bankruptcy given by the
5 Geo. 2. c. 30. s. 7.; must state that
the cause of action accrued before that
bankruptcy, stating that an indenture,
on which an action of covenant is
brought, was executed prior to the
bankruptcy is not sufficient. Charlton
v. King, Hil. 31 Geo. 3.
156
4. If to trespass in the common called
A. the defendant plead that A. and B.
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9. A plaintiff cannot join in the same de-
claration a cause of action as executor
with another which accrued in his own
right. Cockerill et Ux. Executrix, &c.
v. Kynaston, E. 31 Geo. 3.
10. Where goods of the testator never
were in the possession of the executor,
he must declare in that character. ib.
11. And whether the conversion hap-
pened before or after the testator's
death, if the goods when recovered will
be assets in the hands of the executor,
he may sue for them in that charac-
ib.
12. A count on a promise made by de-
fendant as administrator to pay money
received by him as such to the plain-
tiff's use, cannot be joined with other
counts on promises made by the intes-
tate. Jennings v. Newman, Trin. 31
Geo. 3.
347
13. After a demurrer to a declaration of
two counts against two defendants, be-
cause one of them was not named in
the last count, plaintiff cannot enter a
noli pros. on that count and proceed
on the other. Drummond v. Dorant,
Trin. 31 Geo. 3.
14. If to an action of trespass for pulling
down and carrying away a gate the
defendant plead a right of way, and
that the gate being wrongfully erected
across the same, he took it down and
deposited it in a convenient place for
the use of the plaintiff, to which the
312
plaintiff
plaintiff replies a subsequent conver-
sion: proof that the defendant put the
gate upon his own premises, from
whence the plaintiff might have taken
it if he had pleased, will not sustain
the replication. Houghton v. Butler,
Trin. 31 Geo. 3.
364
15. If defendant, after craving oyer of a
deed, do not set forth the whole deed,
the plaintiff may sign judgment as for
want of a plea; or the Court will quash
the plea. Wallace versus The Du-
chess of Cumberland, Trin. 31 Geo.
16. To a quo warranto information the
defendant derived a title in his plea to
the office of a burgess under a custom
for the common council to admit ad li-
bitum any person of the age of twen-
ty-one whom they chose; the prose-
cutor, after denying that custom, re-
plied that no person was entitled to be
admitted but in right of servitude,
and that the defendant had not served
a seven years' apprenticeship: rejoin-
der stating the special circumstances
under which he had served on a de-
murrer to this rejoinder, because it
was a departure from the plea, the
Court held the replication itself to be
bad, as immaterial to the title in the
plea; and gave judgment for the de-
fendant. R. v. Knight, Mich. 32 Geo. 3.
419
17. The defendant in a quo warranto in-
formation derived title under a cus-
tom for "the mayor and burgesses of
"N. in common council assembled,
"under their various names of incor-
"poration, from time immemorial till
"the granting of letters patent by 2.
"Elizabeth, and for the mayor, bailiffs,
"and capital burgesses, in common
“council assembled since that time,”
to admit every person of the age of
twenty-one whom they chose; after
verdict for the defendant, establishing
this custom, the Court held it well
pleaded; it appearing to them to have
been always exercised by the same bo-
dy, as the common council, though
constituted of different persons at dif-
ferent times.
18. To trespass for fishing in the plain-
tiff's fishery, the defendant pleaded
that the place is an arm of the sea in
which every subject has a right to fish;
the plaintiff in his replication claimed
an exclusive right by prescription, tra-
versing the general right; held, that
the defendant ought to take issue on
the traverse, and not to traverse the
prescriptive right claimed by the plain-
tiff; for the first traverse is a material
one, and will put in issue the true
question in dispute between the parties.
Mayer, &c. of Oxford v. Richardson,
Mich. 32 Geo. 3.
437
19. Replevin for taking the plaintiff's
goods and chattels, to wit, a lime-kiln ;
avowry for rent; plea in bar that the
lime-kiln was affixed to the freehold ;
the Court held the plea in bar bad, be-
cause it was a departure from the de-
claration, which had treated the lime-
kiln as a chattel. Niblet v. Smith, Hil.
32 Geo. 3.
504
When a declaration is delivered be-
fore the essoign-day of a term, with
a rule to plead in the four first days of
that term, the defendant cannot plead
within that time in abatement, without
a special imparlance. Doughty v. Las-
celles, Hil. 32 Geo. 3.
22. To debt on an annuity bond defen-
dant pleaded no such memorial as the
statute requires; to which plaintiff re-
plied that there was a memorial which
contained the names of the parties,
&c. and the consideration for which
the annuity was granted; the defend-
ant rejoined that the consideration
was untruly alleged in the memorial
to have been paid to both obligors,
for that one of them did not receive
any part of it; the rejoinder was held
bad; first, Because it was a departure
from the plea; secondly, Because the
fact alleged respecting the memorial
did not contradict the replication; for
the consideration might have been
paid to the other obligor on account
of himself and the co-obligor, or to
a stranger for them both. Praed v.
The Duchess of Cumberland, E. 32 G. |
3.
585
23. A charter of W. 3. granted to the
town of Liverpool directs, that the
common councilmen shall be elected
in such manner as was used before a
former charter of Car. 2.; the de-
fendant, to a quo warranto information
for exercising the office of common
councilman, pleaded, that before the
charter of Car. 2. the mayor, bailiffs, See Overseer; Rate-Poor.
and burgesses, used to elect (except
at those times when there was any
bye-law to regulate the mode of elec-
tion), it was held, that the plea was
bad, because it did not shew what was
the usage in fact before the charter of
Car. 2. R. v. J. Birch, E. 32 Geo. S.
24. If a bond be given to husband and
wife, administratrix, the husband alone
may declare on it as on a bond made
to himself. Ankerstein v. Clarke, E.
32 Geo. 3.
616
25. In alleging a breach of covenant,
which was for quiet enjoyment, it is
sufficient to allege, that at the time of
the demise to the plaintiff A. B. had
lawful right and title to the premises,
and having such lawful right and title
entered, &c. and evicted him, &c.;
without shewing what title A. B. had,
or that he evicted the plaintiff by legal
process, &c. Foster v. Pierson, E. 32
Geo. 3.
617
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26. Alleging that "the party having a
Jawful right and title entered," is equi-
valent to saying "he entered by lawful
right and utle.'
621
27. The stat. 4 Ann. c. 16. which allows
double pleading, does not extend to
penal actions. Heyrick v. Foster, Trin.
32 Geo. 3.
701
28. Where a plaintiff in possession brings
an action on the case against a wrong-
doer, it is sufficient to declare gene-
rally, without disclosing any title: but
when a defendant justifies under a
right, it must be set out formally in the
plea. Grimstead v. Marlowe, Trin. 32
Geo. 3.
718
29. Whether contemporaneous usage in
a corporation may be pleaded in order
to control the words of a charter? quere.
R. v. Bellringer, Trin. 32 Geo. 3. * 821
Sce Quo Warranto Information, No. 7.
See Devise, No. 15; Limitations.
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