refused to give the instruction; The authorities cited, were: Esp. N. P. 130, 138, 140 ; Rolleston v. Hibbert, 3 T. R. 412; Cates v. Knight, 3 T. R. 444; Cutler v. Powell, 6 T. R. 320; Payne v. Bacom, Doug. 651; Robinson v. Bland, 2 Burr. 1098; Precedents of Declarations, (Boston, June, 1802,) p. 18 and 19.

Mr. Mason prayed leave to amend, which was granted, on payment of costs and a continuance.