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abroad. Cole v. Beale, H. 3 & 4 G. 4.
COUNTY COURT. See INFERIOR Court.
COURT OF REQUESTS. See Bills or Exchange, 5.
was filed, and notice thereof served on the defendant :-Held, that the plaintiff was entitled to the costs of those proceedings, as it was the duty of the sheriff to have paid the sum deposited into Court at or before the return of the writ, and which he had omitted to do. Ofley v. Weaver, H. 3 & 4 G. 4.
Page 557 13. Where in an action of debt,
founded on the statute 2 and 3 Edw. 6, c. 13, brought to recover the treble value of tithes, the defendant suffered judgment by default, and the jury, on a writ of inquiry, assessed the plaintiff's damages at 171. 48. 9d, on a count for the treble value, and 91. for the single value on the other counts for tithes bargained and sold, and on an account stated, but omitted to find costs, the Court ordered the return of the inquisition to be amended, by the insertion of nominal damages as to the last counts, on which costs de incremento might be added :—and it seems, that the statute 8 and 9 Will. 3, c. 11, s. 3, which gives the plaintiff his costs in all actions of debt for not setting forth tithes, where the damage found by the jury should not exceed twenty nobles, is confined to cases where a plaintiff obtains judgment after plea pleaded or demurrer joined, and does not apply to a case where a defendant suffers judgment by default. Bale (Clerk) v. Hodgetts, H. 3 & 4 G.4.
602 14. Where a plaintiff (a native of
this country), quits it for a mere temporary residence abroad, the Court will not require him to give security for costs ;-and an application for this purpose cannot be supported on a mere affidavit of belief that it was the intention of the plaintiff to reside permanently
COVENANT. Where, on the dissolution of a part
nership between the plaintiff and defendant, the latter covenanted to deposit a certain sun at a banker's, there to remain until a given day, as a security towards payment of any demands which might be made on the defendant in respect of any debts contracted by the plaintiff on account of, or on the credit of the partnership since its dissolution ; and which sum was, immediately after the day specified, (subject to any such claims and demands), to be paid over to the solicitor of the plaintiff, for his use; and the latter, in a declaration on this covenant, assigned for breach, that although no claims or demands had been made on the sum deposited, in respect of any debts contracted by the plaintiff on account of, or on the credit of the partnership since its dissolution ; and that although the plaintiff had not contracted any debts since that time, the defendant prevented the plaintiff's solicitor from receiving the sum deposited, after the given day had expired; and the defendant pleaded, that after the making of the indenture, 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 hy 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 partnership. Want v. Reece, T. 3 G.4. Page 244
See SHERIYF, 3.
See ATTORNEY, 13.
1. Where the jury assessed the plain
tif's damages, besides his costs and charges, at il. 8s. Bd., and those costs and charges at 12d., and judgment was entered up, that the plaintiff should recover against the defendant his damages, costs, and charges, in form aforesaid, assessed by the said jury at 11. 8s. 6d.; and also 71. 93. 10d. for his costs and charges aforesaid, adjudged of increase to the plaintiff, and with his assent; which said damages in the whole amounted to 8l. 188. 4d. :-Held, that the judgment was complete for the damages, costs, and charges assessed by the jury, without the worde" at 13. Bs. Bd.," which being a mere miscalculation and unuecessary, oright be rejected as surplusage. Duna v. Crump, E. 3 G, 4.
137 2. Where in a declaration for a libel
published in a newspaper, which reflected on the plaintiff in his profession as an attorney; the libel was headed with the words « shameful conduct of an attorney, and then professed to give an ac
count of certain proceedings in the Insolvent Debtors' Court injurious to the plaintiff's professional character, and the defendant pleaded the general issue, and nine special pleas of justification, stating that the alleged libel contained a faithful and true account of the proceedings in that Court; and the Jury at the trial having found a verdict for the plaintiff on the first issue, as to the plea of not guilty, and on the last, as far as related to the second and sixth pleas, without assessing any damages, and for the defendant on that issue, as far as related to the residue of those pleas, and the Court of King's Bench gave judgment for the plaintiff, notwithstanding the verdict found for the defendant, and awarded a writ of inquiry to assess the plaintiff's damages, on which judgment was afterwards entered up for the damages found on the inquisition. On error being afterwards brought in the Exchequer Chamber, that Court held, that the verdict found for the plaintiff on the first and last issues, so far as the latter related to the second and sixth pleas, was void in law; as the Jury, by whom the issues were tried, ought to have assessed the plaintiff's damages by reason of the grievances contained in the declaration ; and they ordered the verdict and inquisition to be annulled and vacated, and the final judgment given by the Court of King's Bench, to be reversed, and that the record should be remitted to that Court, who were directed to award a venire de novo to try the first issue and the last, so far ás related to the second and sixth pleas, on which the verdict had been found for the plaintif. Clement v. Lewis (in error). T. 8 G. 4.
Page 200 DEBT. See ATTORNEY, 5.
DEED. See EVIDENCE, 5.
Recovery. VARIANCR, 3. VESTRY, 1.
DEMURRER. See PRACTICE, 9.
DEPOSIT. See COVENANT, 1.
or more witnesses, should appoint (which will, or writing of appointment in nature of a will, C., notwithstanding her coverture, was thereby empowered to make); and in the mean time, and for want of such appointment, for the whole or any part, to the use of C. and her heirs :-C. having survived B., by whom she had no issue, married D., whom she also survived, and then died, leaving E. an only son by D.; to which son C., by an instrument purporting to be her will, signed in the presence of, and attested by three witnesses, left all her estates in fee, the instrument containing a provision that the property should go over to Ci's sister, in case of E.'s dying in C.'s life-time. E. shortly afterwards died an infant, intestate and without issue, Held, that the instrument executed by C. did not, as to the estates comprised in the fine, operate at law as an execution of her power of appointment, but as a devise by force of her interest.--Held also, that E. took by descent from his mother, and not by purchase. Langley v. Sneyd. Alcock v. The Same, T. 3 G. 4.
DESCENT. See Devise.
DEVISE. Where A, previously to the mar
riage of his daughter C. conveyed property to the use of himself for life, remainder to the use of B., C.'s intended husband, for life ; remainder to the use of C. for life ; remainder to the use of the issue of the marriage, in strict settlement; remainder to the use of A. for ever; and A. afterwards devised all his property not before settled on his daughter's marriage, to the use of his widow for life ; with like remainders to the use of B. and C. and their issue (subject to a term for the provision of younger children); remainder to the use of C. and her heirs; and B. and C. afterwards levied a fine of all the before mentioned premises to the use (subject to the uses in the settlement and will mentioned,) of such persons as C. by will in writing, or any writing of appointment purporting such will, to be signed by her in the presence of, and attested by three
See REPLEVIN, 1.
defended, and the plaintiff obtains
order to increase the damages; but after judgment by default iu ejectment, the costs of such judgment may be recovered, as well as the mesne profits.
Brooke v. Bridges. H. 3 & 4 G. 4. Page 471
ELECTION. See Bail Bond, 2.
See Damages, 2. Where a Judge's order for time against the defendant. Padfeld v.
to plead has been granted, the defendant cannot assign for error the want of an original writ. Hoggett v. Higginson. T. 3 G, 4. 311
See SHERIFF, 4.
exchange, against whom an action had been brought by the holder, had given the latter notice to prove the consideration he had given for such bill; and letters of the drawer were given in evidence to shew that the transaction between him and the holder was fraudulent.--Quære, whether it was incumbent on the holder to prove such consideration.-Semble, that such letters were properly received in evidence at the trial. Coster v. Merest, E. 3 G. 4.
87 2. The copy of an original letter
giving notice of the dishonour of a bill of exchange, is admissible in
evidence, without notice to pro. duce such original letter ; and it seems that there is no substantial distinction between a duplicate original and a copy made at the time, and authenticated on oath. Kine v. Beaumont, E. 3 G. 4.
Page 112 3. Where G. S., being in partnership
with J. S., signed an agreement on behalf of both, to pay the plaintiff 1001, in consideration of his not consigning any herrings of a particular description to the London market, and in particular to the house of Messrs. M. for the space of one year :-and the plaintiff declared in assumpsit against the executors of J. s., who had survived G. S., and averred that he had not consigned any herrings to the London market, and in particular to the house of Messrs. M. within the year ; and in support of such averment, proved that he had not consigned any herrings to that house :-Held, that such evidence was sufficient to entitle him to recover, as it was incumbent on the defendants to have shewn that herrings had been consigned by the plaintiff to the London market. Calder v. Rutherford, E. 3 G. 4.
158 4. Where the avowants in replerin
gave in evidence an attornment by the plaintiff to them seven years before the commencement of an action by him, during which period no rent had been demanded, and the plaintiff offered to prove a feoffment to him by the person under whom they claimed, as well as certain letters written by such person, as being adverse to their claims, and tending to shew, that he had an equitable interest only, which were rejected at Nisi Prius, on the ground that the plaintiff could not be permitted to dispute
Brine, E. 3 G. 4. Page 27 2. Where the plaintiff unnecessarily
sued out a scire facias to revive a judgment on a warrant of attorney; a fieri facias issued on the judgment afterit has been revived, must recite the scire facias ;--and the Court set aside an execution grounded on such fieri facias, on the terms of the defendant's undertaking to bring no action. Davis v. Norton, H. 3 & 4 G. 4.
his tenancy after the attornment: -the Court granted a new trial. Grarenor v. Woodhouse, T. 3. G. 4.
Page 289 5.Where, in trover, the defendant ad
mitted that he detained a deed in trust for W.R. for certain purposes; and in the detention of which, it appeared that the latter was substantially interested :-Held, that the declarations of W. R. in favour of the plaintiff's claim were rightly admitted in evidence; and that he was properly rejected, as being an incompetent witness and interested in the event of the suit. Hlar
rison v. Vallance, T. 3 G.4. 304 6. Where, in trover against an auc
tioneer, for having sold the plaintiff's goods under a commission of bankruptcy, which was afterwards superseded, one of the plaintiff's witnesses, on cross examination, said, that he had heard the plaintiff say, that he bad been discharged under the Lords'Act since the sale: -Held, that such admission being a matter of law as well as fact, was not conclusive to impeach the plaintiff's title to sue the defendant, as the latter should have produced the assignment, or shewn that the requisites of that statute bad been complied with, so as to entitle the plaintiff to his legal discharge. Summersett v. Adamson, M.3 G. 4.
See Set off, 1. 1. Where G. S., being in partnership
with J. S., signed an agreement on behalf of both, to pay the plaintiff 1001. in consideration of his not consigning any herrings of a particular description to the London market, and in particular to the house of Messrs. M., for the space of one year:--and the plaintiff declared in assumpsit against the executors of J. S., who had survived G. S., and averred that he had not consigned any herrings to the London market, and in particular to the house of Messrs. M. within the year; and in support of such averment, proved that he had not consigned any herrings to that house : -Held, that the action was well brought against the executors of J.s., without describing him as the surviving partner of G. S. in the declaration. Calder v. Rutherford, E. 3 G. 4.
158 2. Where A. by will, desired that his
real and personal estates might be sold, and after directing the payment of his debts, and a legacy to T. s., he bequeathed the whole residue of his property to his son and daughter, and two females named in his will, to be divided
between them in separate and equal 2 x
riff to retain in his hands for the use of the plaintiff, money which he had levied under an execution at the suit of the defendant, against J. S., to satisfy an execution sub
sequently sued out by the plaintiff VOL. VII.