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See Saip, 1.

VARIANCE.

AFFIDAVIT.

See Fine, 2.

JURY, 1.
NEW TRIAL, 5.
PRISONER, 2.
RECOVERY, 3, 5.
VENUE.
WARRANT OF ATTORNEY,

1.
1. Ifa bail bond has been irregularly

assigned, the affidavit to set aside
the proceedings thereon must be
entitled in the original action; but
if it has been assigned regularly,
then in the action on the bail
bond. Ham v. Philcox, H. 3 & 4
G. 4.

Page 521
2. The plaintiff having ruled the

sheriff to bring in the body, can-
not take an assignment of the bail
bond pending such rule, as it is
an election by him to proceed
against the sheriff in the first in-

AGENT AND PRINCIPAL.
See ANNUITY, 3, 4.

ATTORNEY, 13.

Bail, 4.
1. Although where an agent has

money in his hands belonging to
his principal, who orders him to
pay it over to a third person, but
before the payment is actually
made, the principal countermands
such order, and the agent after.
wards pays it over, he does so in
his own wrong ;-yet, where ad-
vances were made under an agree-
ment, amounting to the appro-
priation of the proceeds of a spe-
cified cargo by a particular ship,
which the agent remitted accord-
ingly :-Held, that he was not
responsible for such payment, al-
though his principal had counter-
manded the order subsequently to
the agreement under which the
advances were made. Fisher'v.
Miller, H. 3 & 4 G. 4. 527

nership :-And the Court, after argument, refused to allow the plea to be amended; although it was stated that the demand was made for a bond file debt. Want

v. Reece, T. 3 G. 4. Page 244 2. Where a declaration in trespass

contained two counts, the first for assaulting the plaintiff and destroying a scraper alfixed to his house; and the second for destroying the scraper; and the jury found a general verdict for him, damages two shillings : Held, that he was entitled to his full costs, and the Court would not allow the postea to be amended, by entering a verdict for the defendant on the first count. Reece v. Lee, M. 3 G. 4.

269 3. Where the defendant was in cus

tody under an extent, and a capias was issued against him at the suit of the plaintiff, and delivered to the sheriff, who returned, that “ he had taken the defendant, whose body remained in prison under his custody:" the Court refused to allow the return to be amended by striking it out and making another according to the fact. The King v. Worcestershire (Sheriff), in a cause of Ibbotson v. Tyndall, H. 3&4G. 4. 552

ANNUITY. See INSOLVENT DEBTORS, 2.

AGREEMENT.
See AGENT, 1.

ASSUMPSIT, 3.
BAIL, 4.
EXECUTORS.
USE AND OCCUPATION, 1.

Waste, 1. 1. Where the plaintiff's attorney,

having received a sum of money
from the defendant for the plain-
tiff in the progress of the cause,
entered into an agreement to se-
cure it to the latt in which was
contained a proviso, that the
agreement should be made a rule
of Court ;-Held, that the Court
had no authority to direct it to be
done, as the statute 9 & 10 Will. 3,
c. 15, is confined to cases of sub-
missions to arbitration ; and as the
plaintiff's attorney was no party to
the original suit: and that the
plaintiff's only remedy was by ac-
tion for the breach of the agree-
ment. H. 3 & 4 G.4. Page 466

AMENDMENT.
See RECOVERY.

VARIANCE, 5. 1. Where, on the dissolution of a

partnership between the plaintiff and defendant, the latter pleaded, that after the making of the indenture by which the partnership was dissolved, and before the commencement of the suit, a claim or demand was made on him in respect of a debt of 2001. by one J. H., as being a debt contracted by the plaintiff on account of or on the credit of the partnership since its dissolution : such plea was held bad on special demurrer, assigning for cause, that it did not appear that the claim was made on the defendant in respect of any debt actually contracted by the plaintiff on account of such part

1. On an application to set aside an

annuity, on the grounds that the consideration money did not belong to the grantee, and that part of it was retained at the time the annuity was granted; the grantor must make an affidavit of the circumstances attending the original transaction. Dartnall v. Wellesley

(Marquis), E. 3 G. 4. 2. By the statute 63 Geo. 3, c. 141,

-; and

s. 2, and schedule therein con- could not resort to the defendant tained, it is required, that the wit- as his surety, to recover the whole nesses shall be described in the of the arrears of the annuity then memorial of an annuity, as E. F., due ; as whatever sum he had of —, and G. H., of

received from the agent on account where the witnesses to the deeds of the annuity, operated to that for securing the payment of an extent to the extinguishment of the annuity were attornies' clerks : liability of the surety :- Where, Held, that they were 'properly therefore, an execution was issued described as E. F. and G. H., against the defendant, as such clerks to J. G., of C. street, in the surety, for the whole of the arrears county of M., being the place due from his principal (the grantwhere the latter carried on his or), and under which he was debusiness as an attorney; and that tained in custody, the Court orderit was not necessary to describe ed him to be discharged on paythem as of their residence or place ment into court of the balance 'of abode. St. John v. Champneys, due, after giving credit for the (Bart.), M. 3 G. 4 Page 382

advance ; the amount of which 3. Where the defendant, as surety balance was to be ascertained by

for the grantor of an annuity, exe- the Prothonotary. Williamson v. cuted a warrant of attorney to Goold, (Bart.), H. 3 & 4 Ġ. 4. confess judgment, as a collateral

Page 579 security for the due and regular 4. So, where, upon the grant of an anpayment of the annuity, subject to nuity, the agent who negociated it a defeasance, that after any default as between the grantor and grantee should be made by the grantor in was appointed trusted and receiver payment of the annuity, the grantee of the rents of the estate on which might sue out execution upon such it was charged, and afterwards judgment against the defendant, advanced money to the grantee out for such part of the annuity as of his own funds, in anticipation should be then due :--and the an- of the receipt of the arrears from nuity being in arrear, and the rents the estate of the grantor, and deof the estates of the grantor, on bited the grantee with the usual which it was originally secured, commisson charged by him on the being unpaid, the agent and trus- annuity payments ;-Held, that tee of the estates, who negoci- upon the eventual failure of the ated the annuity as between the securities and insolvency of the grantor and grantee, advanced to

grantor, the agent could not treat the latter a sum of money in anti- such an advance as a mere loan; cipation of the accruing rents, and but that it must be taken as a deducted and retained the usual payment made to the grantee in commission charged by him on the liquidation of the arrears of the receipt and payment of annuities : annuity; and that the latter could Held, that such advance must be only issue execution against the considered as a payment made on grantor for the amount of the araccount of the grantor, as the reare actually due, after deducting principal; and that on the insol- the sum advanced and received by vency of the latter, and the rents him from such agent. Carroll v. of his estates proving insufficient Goold, (Bart.), H. 3 & 4 G. 4. to satisfy the amount, the grantee

621

VOL. VII.

21

APPROPRIATION.

ASSUMPSIT.
See AGENT.

See VARIANCE, 5.
ARBITRATION.

1. An action of assumpsit cannot be

maintained against the Secretary See AGREEMENT., 1.

at War, by a retired clerk of the AWARD.

War Office, for his retired allow. Costs.

ance, although such allowance New Trial, 4.

was included in the yearly esti

mates drawn for by such SecreARREST.

tary, and received by him as appli

cable to such specific allowance ; See BAIL, 2.

on the ground, that the Secretary BANKRUPT, 2.

is only chargeable in his public PRISONER, 2.

and official character; and that an

action cannot be maintained a1. Where the defendant, on being gainst him as such, for any thing

arrested, deposited certain goods done by him in that character, in the hands of the officer who although it may amount to a arrested him, in lieu of bail, and breach of employment, as it would afterwards surrendered himself;- tend to expose him to an infinite two days after which, the officer number of actions, to be brought deposited with the Prothonotary by any persons wbo night supthe amount of the original debt, pose themselves aggrieved. Gidand 101. for costs : Held, that the ley v. l'almerston (Lord.) E. 3 G. defendant was entitled to have 4.

Page 91 those sums paid over to him, as 2. Where the plaintiff declared in if they had been paid in under the assumpsit for work and labour, in statute 43 Geo. 3. c. 46, he would healing and curing the defendant's be entitled to them on his render; horses, within the jurisdiction of and if not, they must be taken to

a county court, and for divers have been paid into Court by mis- potions and medicines adminis

take. Hill v. Ching, M.3 G.4.482 tered and applied on those occaQuære. - Whether the depositing sions :--On a writ of false judg.

goods with the officer on an ar- ment, assigning that it did not rest, instead of money, is a coin- appear that the potions, &c. were pliance with the terms of that

supplied by the plaintiff on the ocstatute ?

Id ibid. casions therein mentioned, within And see ofley v. Weaver, post, tit. the jurisdiction of the court, and Costs.

that the consideration for the pro

mises was not stated to have arisen ASSAULT.

there :-Held, that it was suffi

ciently alleged in the declaration, See AMENDMENT, 2.

that the potions were adminisNEW TRIAL.

tered within the jurisdiction. Dunn v. Crump, E. 3 G. 4.

137 ASSIGNEES.

3. Where G. S. being in partnership See BANKRUPT.

with J. S. signed an agreement on GUARANTIE 1.

behalf of both, to pay the plaintif

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