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oneretur on the bail-piece, 'as there was no variance between the pro

and declaration :-on the grounds, that the plaintiff might sue out bailable process against one defendant, and serviceable against others : that four only could be included in one writ; that the bail-piece must agree with the writ under which the one defendant was arrested; and that the affidavit of debt corresponded with the declaration which had been delivered as against all. Christie

v. Walker, M. 3 G. 4. Page 362 8. Where the plaintiff, in a special

Jury cause for not setting out tithes, was under a peremptory undertaking to try at the next assizes, the absence of eleven special Jurors is a sufficient reason for his declining to proceed with the trial, although a tales had been prayed, and part of the talesmen sworn; and the Court discharged a rule for judgment as in case of a nonsuit, on the plaintiff's giving a fresh peremptory undertaking to try at the ensuing assizes. Master Milner (Clerle), M. 3 G. 4.

4. Where, in an action of trespass,

the defendant pleaded several special pleas, justifying a right of way for himself and his servants, and with horses, and a like right for himself, and his servants with horses, omitting the word "and;" Held, that as those pleas involved questions of distinct and separate rights, the Court would not refer it to the Prothonotary to determine whether the latter should be struck out, as being unnecessary and irrelevant. Trickey v. Yean

dall, M. 3 G. 4. Page 351 5. The rule of Ecster Term, 10 Geo.2, which requires that all notices shall be given before nine o'clock at night, does not extend to process, which may be served at any hour.

Priddee v. Cooper, M. 3 G.4. 358 6. Where the defendant, obtained a

rule to quash a writ, on the ground that the name of the plaintiff's attorney was not indorsed on the copy served on him :-Held, that the terms of such rule were too extensive, as the writ itself was good ; and as it was necessary for the plaintiff to appear and oppose the rule in support of his writ, the Court ordered the service only to be set aside, on payment of costs by the defendant. Huggett v. Parkin, M. 3 G. 4.

359 7. Where the plaintiff, having a joint

cause of action against five defendants, sued out bailable process against one alone, under which he was arrested and put in bail, and afterwards sued out serviceable process against the other four, and all the five defendants were named in the affidavit to hold to bail ; and a declaration was delivered, in which they were all included ; but the bail-piece was taken in the name of the defendant only against whom bailable process had issued; the Court refused to enter an ex

367 9. The Court will not allow a special

demurrer to be argued on the last day of Term, on a statement by counsel that it is only a sham demurrer, and filed for the mere purpose of delay. Tibbett v. Per. ring, M. 3 G. 4.

440 10. A writ of capias, returnable on

the morrow of St. Martin, was served on the defendant's wife on the 12th Norember : and hy the notice at the foot thereof, the defendant was required to appear on the 12th June preceding :--The defendant, after notice of declaration, requested that further proceedings might be staid, and promised to pay the debt and costs; Held, that this was a waiver of the


he discharged out of custody. Claughton v. Farquharson, T. 3 G. 4.


See LIBÈL, 2.

irregularity in the writ and service. Rawes v. Knight, H. 3 & 4 G. 4.

Page 461 11. Where, in an action against five

defendants, the rule to plead several matters was erroneously entitled A. v. B. instead of A. v. B. anıl others, and the plaintiff signed judgınent as for want of a plea ; the Court set it aside, without costs. Christie v. Walker, H. 3 & 4 G. 4,

599 Sce S. C. Id.

02, 301



See Agent,

PRISONER. See INSOLVENT DEBTORS. 1. Where a defendant, after final

judgment, surrendered in discharge of his bail, and the plaintiff omitted to charge him in execution within two Terms next after such surrender :

-Held, that he was supersedeable, although he had caused himself to be removed by habeus corpus into the custody of the Marshal of the King's Bench, immediately on his being charged in execution. Morris v. M'Grath, E. 3 G. 4.

154 2. Where the defendant had been

arrested on process issued out of the Court of King's Bench, and was discharged on filing common bail, on the ground of a defect in the affidavit of delt; and a new detainer for the same cause of action was lodged against him in the Fleet prison on the day of such discharge, where he was then confined, and the action in the King's Bench had been discontinued, but the costs not paid : – Held, that such detainer was irregular; and the Court ordered the defendant to

The statute 49 Geo. 3, c. 108, s. 16,

empowers commanders-in-chief on
foreign stations to promote petty
officers and seamen to the rank of
lieutenant, master, surgeon, boat-
swain, &c. Where, therefore, a
boatswain's mate was appoioted
acting boatswain of a single ship,
and on her return made an assign-
ment of his prize-money to the
defendant; but the warrant of the
navy-board, confirming that ap-
pointment, was not signed until
afterwards :-Held, that the plain-
tiff must be taken to have been
legally appointed in the first in-
stance, and might assign prize-
money which he was entitled to
receive as such acting boatswain,
when due, without being subject
to the restrictions of the 45 Geo. 3,
c. 72, s. 92, by which petty offi-
cers and seamen are restricted
from the assignment of their prize-
money. Wellard v. Moss, H. 3 &
4 G. 4.

See Bail, 2.


See Bills of ExcuANGE,



See Bail, 4.


See FINE. 1. A recovery may be amended by

RE-ENTRY. See Power, 2.




inserting the words meadow and pasture before land, although it was described as land generally in the recovery and deed to lead the

Tucker, demandant; Fairbank, tenant ; Bishop, vouchee, T. 3 G.4.

Page 257 2. Where the names of the vouchees

had been inserted by mistake in the præcipe of the warrant of attorney, instead of that of the tenant, the Court allowed it to be amend. ed by substituting the name of the latter for those of the former. Cox, Demandant; Ince, Tenant ; Gill, Vouchee, T. 3 G. 4.

257 3. A recovery suffered seventy years

șince, cannot he amended by inserting an udvowson, although it was omitted by mistake, and had formed part of the estate since the recovery was suffered ; without an affidavit stating how the presentations had gone from that time to the application for the amendment. Colclough, Demandant; Praed, Tenant ; Sarage, Vouchee. T. 3 G. 4.

268 4. The return of a writ of summons

may be altered by inserting a subsequent return day, if there are several vouchees residing in different counties ; and one of them could not sign it until a day after it was first made returnable. Bramwell, Demandant ; Winter, Tenant; Osborne, Vouchee, T. 3 G. 4.

269 5. A recovery was permitted to pass,

although in the affidavit of acknowledgment, notarial certificate, and the other necessary instruments to perfect the same, Demerata had at first been improperly styled an island, which word had been struck out by some person there, and that of colony substituted, by way of interlineation. Bayley, Demandant; Bremridge, Tenant ; Adams, Vouchee, M. 3 G. 4.




Costs, 4.

RELEASE. 1. The Court will not set aside a

release given by one of two plaintiffs to a defendant after action brought, unless fraud can be clear

established: where, therefore, two plaintiffs (as partners) instructed their attorney to proceed to trial in an action brought by them against the defendant for misrepresentation as to their solvency; and a few days before the trial, one of them gave a release to the defendant, without the knowledge of, or communication with such attorney ; the Court refused to interfere. Furnival v.

Weston, M. 3 G. 4. Page 356 2 But a general release, given by a insufficient, the defendant would be deprived of his remedy against the sheriff on the bond. Bailey.v. Bailey, M. 3 G.4. Page 439

trustee in fraud of his trust, is void. Where, therefore, a testator bequeathed certain premises to a trustee, to receive the rents for the benefit of his children, and gave him power to demise the same for a term, which he did, and received the rents, but did not apply them to the purposes of the trust; on which a bill in equity was filed against him at the suit of one of the parties beneficially interested under the will, and a receiver was appointed, who sued the lessees in the name of the trustee for non-payment of rent, and they pleaded a release executed to them by the trustee pending the suit ; the Court ordered the plea to be set aside, and the release to be See AssumPSIT, 1.


See Costs 1, 9,





delivered up to be cancelled. Manning v. Cox, H. 3 & 4 G, 4.

Page 617 REPLEVIN. 1. Growing crops may be considered

in the nature of goods and chattels, under the statute 11 Geo. 2, c. 19, as they may be distrained in the same manner as articles of the latter description :- Where, therefore, the condition of a replevin bond was, that the defendant should prosecute his action with effect against the plaintiff, for taking and detaining his goods, chattels, and growing crops ; and in the deciaration the bond was set out as conditioned to prosecute with effect for taking and detaining the goods and chattels in the said condition mentioned :-Held, that this was no variance. Glover v. Coles, T. 3 G. 4.

231 2. Avowries-first, by E. W. and

J. T. for rent due to them from the plaintiff as tenant to them; secondly, by E. W. and J. T. and Ann his wife, in right of the said Ann, for rent due to E, W. and J. T., and Ann his wife, in right of the said Ann, from the plaintiff, as tenant to E. W. and J. T., and Ann his wife, in right of the said Ann, may be supported by evidence of an attornment from the plaintiff to E, W., J. T., and Ann his wife, Grarenor v. Woodhouse, T. 3 G. 4.



See Vestry,

SCIRE FACIAS. See Execution, 2.



See Costs, 6, 7, 14.


See Venue, 1,

Where one of the sureties to a re-

plevin bond was a material witness
for the plaintiff in the cause, the
Court allowed another to be sub-
stituted in his stead, on his being
approved of by the Prothonotary,
and giving the defendant's attor-
ney notice to appear before him to
sanction such approval ; as in case
the surety so substituted should be

SET-OFF. 1. Where A,, two months before his

death, accepted a bill payable at his bankers in London, which was discounted by them for a customer, who did not indorse it, and they were the holders on the day it became due; on the morning of which, they wrote it off, and an hour afterwards received intelligence by post of the death of A.; -Held, that they were entitled to reimburse themselves out of the funds of A. and pass the amount of the bill to their own account:

But the bankers having been in
the habit of advancing 1000/.to A.
by way of loan, for which sum he
gave his promissory note, which
was renewed every three months,
when they debited him with the
full discount ;-Held, in an action
brought against them by the exe-
cutors of A. for money had and
received, that they could not set
off the amount of such note before
it became due, upon allowing a
re-bate of discount for the time it
had to run ;-on the ground, that
such advance was to be considered
as a separate transaction, and not
one continued loan ; and that no
action could be maintained on the
note until it became due. Roger-
son v. Ladbroke, M. 3 G, 4.

Page 412

Bail BOND, 2.

Bond. 1. The Court refused to order a she

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 subsequently sued out by the plaintiff against the defendant.

Padfield v. Brine, E. 3 G. 4. 127 2. Where the plaintiff had taken the

goods of the defendant in execution, which he withdrew on the latter's consenting that there should be a fresh levy if the debt were not paid on a given day, and that the warrant should remain in the hands of the officer for that purpose; and the defendant's goods having been seized under a subsequent execution by another creditor, and the plaintiff's officer placed his warrant in the hands

of the officer under that execution, and the defendant afterwards became bankrupt, and the residue of his effects were delivered over to the assignees after satisfying the second execution, to the exclusion of the plaintiff, who called on the sheriff to return the writ; the Court ordered the return to be enlarged, until he was indemnified by the proper parties to the satisfaction of the Prothonotary. Burr v. Cree

thy, M. 3 G. 4. Page 368 3. The statute 3 Geo. 1, c. 15, whirh

gives the sheriff poundage in cases where the debt is due to the Crown, applies only to cases between party and party; and where the sheriff was put to extra trouble and expense at the request of the prosecutor, in executing a writ of habere facias possessionem under an extent, he is entitled to such expences on the taxation of costs. Capp ,

Johnson, H. 3 & 4 G. 4. 518 4. 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 : and on the defendant's being afterwards brought up before a Judge under a habeas corpus, he was discharged from the extent, and the officer allowed him to go at large, and an attachment was afterwards issued against the sheriff for not bringing in the body; the Court refused to set it aside; as it was the duty of the sheriff to have detained the defendant in custody at the plaintiff's suit, and as he was liable for the negligence of the officer who suffered him to escape. The King v. Worcestershire (sheriff) in a cause

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