in the plea and in the issue; but that is not important, for in all issues of this nature it is implied, and means no more than "the said cattle in the declaration mentioned." The present traverse, indeed, would compel the defendant to prove that the cattle levant and couchant were his own, and such as he was entitled to depasture on the common-Manneton v. Trevilian (5). But if it be contended, that by the allegation that all the cattle were not the defendant's commonable cattle, it is meant that some were not, there will still be an admission that some were, and so far an admission that the action was improperly brought. In Sloper v. Allen (6), where in replevin for taking forty sheep, and the issue being that they were not levant and couchant, it was found that twenty were and twenty were not, the judgment was awarded for the defendant, because the issue was upon all. There, the charge had been made distinct and specific, and the grievance was that a certain number of things had been taken; here, the plaintiff complains generally of a disturbance of his right of common.

J. Evans and Nicholl, in support of the rule. It is admitted that Ellis v. Rowles has no application to this case. Then the issue being that all the cattle were the commonable cattle of the defendant, he was bound to prove that such was the fact. The plaintiff complains of the defendant having surcharged the common, and it was for the latter to sever in his plea the cattle as to which he had a defence, and those as to which he had not. He has not done so, but has undertaken to prove a justification for all his cattle. The case of a plea of leave and licence is analogous. There, the licence must be proved co-extensive with the trespasses-Barnes v. Hunt, Hayward v. Grant (7).

[LITTLEDALE, J.-This case cannot be likened to a plea of leave and licence. Barnes v. Hunt is only an authority in that particular case.]

The declaration alleges a disturbance on divers days and times, and the plaintiff

was prepared to prove, that on various days the defendant had put on a greater number of cattle than he was justified in doing. Atkinson v. Teasdale (8) shews that he might have done so under this declaration. But it is argued, that to the present plea the plaintiff should have replied the surcharge that is the effect of the replication. Sloper v. Allen has not been disposed of.

[LITTLEDALE, J.-That was an action of replevin, in which there can be no new assignment.]

Here the plaintiff, by his traverse, has made the number of the cattle material in the issue, and his replication might, therefore, have been demurred to-Colburn v. Stockdale (9), Goram v. Sweeting(10); yet, as the defendant has joined in the issue, he was bound to prove it to the extent alleged. It may, however, be contended, that the issue was divisible, and that part might be found for the plaintiff and part for the defendant, that is, that so far as the defendant's right of common justified the putting on of the cattle, he might be entitled to the judgment, but for the cattle with which he surcharged the common, the plaintiff should recover-Knight v. Woore (11), Tapley v. Wainwright (12), Phythian v. White (13). The rule Hilary term, 4 Will. 4, 'Trespass,' IV. and V. was referred to.

Cur. adv. vult.

The judgment of the Court was in Trinity term last delivered by

LORD DENMAN, C.J.-This was an action on the case for disturbing the plaintiff's right of common, by turning on cattle on divers days and times. The defendant pleaded a right of common in himself, and justified turning on the cattle mentioned in the declaration, being his own commonable cattle levant and couchant on his land, which are the same supposed trespasses in the declaration mentioned. The plaintiff replied, that all the cattle men

tioned in the declaration were not the defendant's cattle levant and couchant, modo et formá. Upon the plaintiff's opening, it was admitted by his counsel, that on all the days and times some of the cattle turned on were levant and couchant, and that the action was for surcharging. The learned Judge thought that the surcharging ought to have been newly assigned, and refused to receive any evidence respecting it, directing the jury upon the admitted facts to find a verdict for the defendant. We are of opinion, that he was right in so doing, and that this rule for a new trial must be discharged. The case of Ellis v. Rowles was cited and relied on at the trial, but appears not to be in point. It is quoted in a note of Serj. Williams to Mellor v. Spateman, as if it were an authority for a position there laid down, viz. “that if a lord bring trespass, and the defendant should prescribe for common for his cattle levant and couchant, and aver that he put the cattle mentioned in the declaration, being his commonable cattle levant and couchant on his land, into the common, in case some of the cattle were not levant and couchant, it should seem the plaintiff should new assign the trespass, by saying that he brought his action for depasturing the common with other cattle, and not traverse the levancy and couchancy; for, in trespass, it is sufficient for the defendant to shew anything which excuses the trespass, and the number mentioned in the declaration is not material:" but the passage stood in the first edition, without any authority cited to support it, as an observation of the editor himself; and the case was added in a subsequent edition, as bearing upon, though not expressly involving the point. If the position be good law, it applies equally to a plea in an action on the case, by a commoner, in which, though for some time before the new rules such defence would have been given in evidence under the plea of not guilty, formerly it used to be pleaded specially. (See the former part of the note.) Now, the precise number mentioned in the declaration being immaterial, the defendant was at liberty to apply his justification of right of common to any number of cattle that he pleased, and to aver that those cattle were levant and

were

couchant, and that the supposed grievances with them, were the grievances alleged in the declaration. The plaintiff, by his replication, admits the right of common set up by the defendant, and that the cattle in the plea are the same as those in the declaration, but traverses that all the cattle in the declaration were levant and couchant. This does not make the precise number material; and as it was conceded, that on every occasion some of the cattle were levant and couchant, the defendant is entitled to apply his plea to them, both by way of allegation and proof at the trial, since he has asserted by his plea, that those are the cattle mentioned in the declaration, and that assertion has not been denied. If the plaintiff had stated in his declaration, as he might have done, though he was not bound to do, that the defendant, being a commoner, had put in cattle which were not levant and couchant, and the defendant had asserted in his plea that they levant and couchant, doubtless he must have failed, unless he could have proved by his evidence, that all the cattle the plaintiff proved to have been put on the common by him, were levant and couchant. This also shews that the case of Barnes v. Hunt does not apply, for there the licence pleaded was wholly inapplicable to all the tres. passes proved on one particular day. Such would have been the state of things, if the replication had merely traversed that the cattle in the plea mentioned, or the said cattle, were levant and couchant; but the language of it is, that all the cattle in the declaration mentioned were not the defendant's own commonable cattle levant and couchant on his land. On this replication, a question arises, whether the word all alters the meaning of the issue tendered. The replication either means that none of the cattle mentioned in the declaration were levant and couchant, or it means that some were and some were not. Now, if it means the former, it is properly taken as an issue concluding to the country, for such is unquestionably the meaning of the plea; and the issue can only be properly taken by pursuing the meaning of the plea. Again, this would cause no inconsistency in the plaintiff's pleadings, because he would only then be averring that defendant had no cattle levant and couchant, which

is the apparent meaning of the declaration. But, if the replication have the latter meaning, then it is faulty in two respects: first, because it traverses the plea in a sense manifestly not intended by the plea; and secondly, as it asserts that some of the cattle in the declaration mentioned were levant and couchant on the defendant's premises, who had a right of common; and so shews that the action is brought in respect of cattle for which it will not lie, and that the defendant is entitled to a verdict pro tanto, and yet not shewing for how much. This is absurd, and therefore the plaintiff is driven to say, that the word all is equivalent to a new assignment, and amounts to the same thing as if the replication had averred expressly that the action was brought, not in respect of the cattle levant and couchant, but in respect of others that were not levant and couchant. We think, that the word all being in the replication quite ambiguous, must be taken more strongly against the party pleading; and that it must be taken that the traverse concluding to the country, takes issue only on the allegations of the plea, according to the meaning of that plea; consequently it does not amount to a new assignment, but is only a denial that any cattle of the defendant were levant and couchant; and the learned Judge was right in telling the jury, that as it was admitted that in all the instances some of the cattle were levant and couchant, the verdict must be for the defendant, and the present rule must be discharged.

up to London for a Judge's order for render, and the defendant was rendered on the 21st; the Court ordered an exoneretur to be entered on the bail-piece.

This was an application to enter an exoneretur on the bail-piece, the defendant being rendered. It appeared, that a judgment having been signed against the defendant on the 27th of July last, he was on the 24th of November rendered into the custody of the gaoler of the castle of York, in discharge of his bail, pursuant to a Judge's order, dated November 21. On the 18th of November, the bail, who lived in Yorkshire, were served with a notice, dated November 14, 1836, from the plaintiff's attorney, of his having sued out a writ of ca. sa. on the 28th of October, returnable on the 9th of November, and that the writ was left in the office of the sheriff of Yorkshire on the 29th of October, and was entered four clear days in his book, and that on the 14th of November, a sci. fa. was issued against the bail, on their recognizance, tested November 14, and returnable the 19th, which was left at the sheriff's office on the 14th. The bail without loss of time wrote up to London for a Judge's order for leave to render, which was obtained, and the defendant surrendered.

In Hilary term last, a rule nisi having been granted, cause was shewn by

Knowles, who contended, that the render was too late. By the rule Hilary, 2 Will. 4. No. 81, judgment may be signed by leave against the bail after eight days from the return of the scire facias. Previously, there was no necessity to give any notice to the bail, but two writs, a scire facias and an alias scire facias, were issued out against the bail, and on returns of nihil by the sheriff, judgment could be signed against the bail. Now, only one writ is required. The rule contains nothing about notice to the bail. In Middlesex, the bail may be summoned, and it has been held sufficient, if they are summoned any time before the rising of the Court, on the day when the scire facias is returnable-Clarke v. Bradshaw (1), and, since the new rules, Lewis v. Pine (2). In the rule Trinity, 3 Will. 4.

(1) 1 East, 86.

(2) 2 Dowl. P.C. 133; s. c. 2 Law J. Rep. (N.S.) Exch. 294.

No. 3, there is an express regulation, that in an action of debt on the recognizance, the bail are to have fourteen days after service of the writ to render their principal.

Busby, contrà.-The new rule was intended to give the bail an opportunity of rendering their principal, and if it were not construed to have that effect, the bail would be in a worse situation than before. Previously there must have been two writs, and fifteen days must have expired between the teste of the first and the return of the second (3). The real meaning is, that the bail shall have eight days to make the render after notice of the scire facias. See Thorn v. Hutchinson (4).

Cur. adv. vult.

The judgment of the Court was now delivered by

LORD DENMAN, C. J.-The question turns on the rule of Hilary term, 2 Will. 4. No. 81. Before and since that rule, if the bail be summoned, which can only be in Middlesex, where the scire facias must be brought, the defendant must be rendered before the shutting of the office on the day of the return of one scire facias. Where the bail reside elsewhere, the practice of suing out two writs of scire facias is done away with, by the above rule; and an application to the Court or a Judge, after eight days from the return of one writ, for leave to sign judgment, is substituted. Before such leave is given, it must be proved, that notice has been given to the bail, or that proper endeavours have been made to do so without effect. The object of that notice is to enable the bail to render the defendant; and, accordingly, it is stated, in a note to Mr. Jervis's New Rules, p. 64, (3rd edit.), that Bayley, B., in a case of Newton v. Flight (5), at chambers, held, that where no notice had been given, a render fourteen days after the return of the writ was in time. Here, notice was given in Yorkshire the day before the return of the writ, but that notice is not the same thing as a summons in Middlesex. It would have entitled the plaintiff to obtain

(3) 2 Tidd's Pr. 1125, 9th ed.

(4) 3 B. & C. 112; s. c. 2 Law J. Rep. K.B. 211. (5) MS. 23rd of June 1852.

leave to sign judgment after eight days from the return day, if nothing had been done in the meantime; but we are of opinion, that those eight days were given for the very purpose of enabling bail to render, though the rule is not confined to proceedings against bail. It would be very strange if it were otherwise, for then the bail would be placed in a worse situation by the rule in question, than they were before; and if the plaintiff proceeds by action, they have fourteen days from the service of the writ to render, by rule 3, Trin. term, 3 Will. 4. For these reasons, we think that the present rule must be made absolute.

Bills of Exchange-Usury.

The 58 Geo. 3. c. 93. only applies to protect bills given on usurious contracts, which come into the hands of bonâ fide holders, upon discount, or where the consideration passes at the time of the transfer, and does not protect a holder who receives them to secure an existing debt.

The 3 & 4 Will. 4. c. 98. s. 7. protects bills given on usurious considerations, which are made payable on demand.

Assumpsit on two promissory notes, dated October 22, 1833, and January 25, 1834, made by the defendant for 50l., payable to one J. Ward, or order, on demand, and indorsed by him to Broomhead, and by him to the plaintiff.

Plea-That before the making of the said promissory notes, it was corruptly agreed between the defendant and the said Joseph Ward, that the sum of 45l. should be advanced, and that the defendant should pay him 51. over and above 51. per cent., and that the promissory notes should be given to secure the repayment of the said sum of 45l., and 5l. and interest; and it was averred, that in pursuance of the said corrupt agreement, the notes were given, the sum of 34l. 11s. 1d., being advanced by the said Joseph Ward, for one note, and 221. for the other.

Replication-That before the payment of the notes had been demanded of the defendant, according to their tenor and effect, the plaintiff became the indorsee thereof from Broomhead, for valuable consideration, for money due to the plaintiff for work and labour, without notice that they had been originally given for an usurious consideration, or on an usurious contract. Demurrer and joinder.

Cresswell, in support of the demurrer.— The plaintiff cannot recover in this case. The notes, having been given on a usurious consideration, were void by the 12 Ann. st. 2. c. 16. But the plaintiff relies first on the 58 Geo. 3. c. 93 (1). That, however, relates to cases where the negotiable security is discounted, or given for a consideration passing at the time. Here, it does not appear that there was any discounting of the note, or that any consideration passed when it was given. On the contrary, it was given to secure an existing debt. The plaintiff is not in any worse situation in consequence of the notes being avoided, because he had already advanced his consideration. Secondly, he relies on the 3 & 4 Will. 4. c. 98. s. 7. But that statute is not applicable to these notes, because these are notes payable on demand, whereas that is a provision made for bills or notes payable at or within three months after date. That must evidently be confined to instruments payable within some given time, and not where the time of payment is indefinite, as in the present case. A party might have been called upon to pay these notes as soon as they were given. It may also be doubted, whether that statute applies to such a transaction as this. It seems to have been intended to protect discounts or loans of money on bills of exchange or promissory notes, and not to have touched cases where such instruments were given to secure debts already contracted.

[LITTLEDALE, J.-The first part of the section relates to the discounting of bills or notes, but there are three distinct provisions, and the second is against you on this point.]

(1) Which is stated fully in the judgment of the Court.

Then lastly, the statute 5 & 6 Will. 4. c. 61. is referred to, but that did not receive the royal assent until 1835, and these notes were given in 1833. It has not a retrospective effect, and therefore cannot be applicable to the present case.

White, contrà, contended, first, that the statute 58 Geo. 3. c. 98. protected these notes. It is true, that the preamble applies to the discounting of bills or notes; but the enacting part goes farther, and provides generally that such bills shall not be void in the hands of an indorsee for valuable consideration; and Wright v. Nuttal (2) may be referred to as an authority for the extending of the enactment beyond the preamble, where the language warrants it. That provision virtually repeals the statute of Anne, so far as it makes such instruments void; but, at all events, in this case, the plaintiff is an indorsee for valuable consideration. He has taken the notes in payment of a debt due to him, and has given up his right of action against his debtor. It may therefore be fairly urged, that he has given a valuable consideration for these notes. Secondly, the statute 3 & 4 Will. 4. c. 93. s. 7. applies. It is said, that these notes being payable on demand, are not within it. In answer, it may be noticed, that the second branch of that section is quite general, and in its terms, whatever may have been the meaning of the legislature, protects all bills given on a usurious consideration; therefore, these notes must be rendered valid. But it is clear they fall within the description in the first part of the section, of notes payable within three months after date. Though payable immediately on demand, they are not the less payable within that time. Then the language of the section is clear, that no such bill or note shall be affected by the statutes of usury. Lastly, the statute of 5 & 6 Will. 4. c. 61. is retrospective, and having enacted that no bills or notes given on usurious consideration shall be void, but shall be deemed to have been given on an illegal consideration only, renders those notes available in the hands of the present holder.

(2) 10 B. & C. 492; s. c. 8 Law J. Rep. K.B. 188.