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: case might be, out of the clear profits: W.'s name never appeared to the world as a partner:

Held, that W. was a partner; and the new firm having become bankrupt in 1826, held, that the creditors of the old firm and the creditors of the new firm were both entitled to prove against the property of the new firm. Ex parte Chuck, in the Matter of Starkey and Another, Bankrupts. Page 469

PLEADING.

See RENT-CHARGE, 1. TRESPASS, 1. ADULTERY. AMENDMENT, 2.

1. Plaintiffs declared as assignees, but assigned a breach in non-payment to them, assignees as aforesaid, instead of as assignees as aforesaid: Held, sufficient on special demurrer. Cobbett and Others, Assignees of Baker, a Bankrupt, v. Cochrane.

17 2. The declaration stated that Defendants A., H., and C. broke a close of the Plaintiff abutting on a close of the said Defendant. The Plaintiff's close abutted on a

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3. It is no ground for a plea in abatement, that a Defendant, sued as a Scotch peer, is also described as having privilege of parliament. Cantwell v. Earl of Stirling. 174 4. Replevin. Defendant avowed that the rent was payable at Martinmas, 4. to wit, Nov. 23. :

Held, that this must be taken to mean New Martinmas; and Plaintiff having shewn that the rent was in fact payable at Old Martinmas, the Court refused to set aside a verdict given for him. Smith v. Walton and Another.

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Page 235 5. The county in the margin of the declaration held a sufficient venue, on special demurrer. Duncan v. Passenger. 6. A plea in abatement by an Earl of misnomer in his title of dignity must allege positively, and not merely by inference, that he was Earl at the time of suing out the writ. Digby v. Alexander. 416 7. To debt on a judgment, the Defendant pleaded a release of December 1831, destroyed by accident. Upon affidavit that the plea was false, the Court allowed the Plaintiff to sign judgment as for want of a plea. Smith v. Hardy. 435

PONE.

See PRACTICE, 5.

PRACTICE.

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See PRIVILEGE, 1. EVIDENCE, 3. 8. 1. Plaintiff issued a mandate to the

officer of a liberty, to arrest the Defendant on a ca. sa. Defendant was afterwards discharged, under the insolvent debtors' act, from the custody of the sheriff of the county. The Plaintiff having become the assignee under the discharge, Held, that he was estopped to rule the officer of the

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liberty to return the mandate for the capture of the Defendant. Hepworth v. Sanderson. Page 19 2. Defendant, upon certain terms favourable to Plaintiff, was allowed to have a special jury after the cause had stood for trial by a common jury during a whole sit-8. tings, and had been twice postponed at the instance of the Defendant. Thorne v. Marquis of Londonderry. 26 3. Practice as to Elisors. Mayor and Corporation of Norwich v. Gill.

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new trial to change the venue from Dorset to London, upon the ground that both the parties lived in London, and that all the witnesses came from London on the first trial. Palmer v. Marshall.

Page 155 Judgment of non pros cannot be signed for omission to deliver particulars pursuant to a Judge's order. Sutton v. Clark. 165 9. A petitioning creditor attending commissioners of bankrupt, is protected from arrest, eundo morando et redeundo.

If he shews that he is on his way home, it is for the party who arrests to prove a deviation. Selby v. Hills.

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166 10. A party has, in general, four days' time to plead after judgment of respondeat ouster. well v. Earl of Stirling. 11. When the Plaintiff gives notice of trial a term earlier than the rules of court require, if he omits to try pursuant to his notice, the Defendant may move for judgment, as in case of a nonsuit, the next term. Howell v. Powlett.

272

12. An undertaking for a bail-bond given to the sheriff by the Defendant's attorney, being a mere nullity, an application by Defendant to set it aside and enter a common appearance, was discharged with costs, though Defendant was a feme covert. Lewis v. Knight.

This Court refused to stay proceedings before verdict, upon payment of debt without costs, upon the ground that the action ought to have been brought in the Bath court. Meredith v. Drew. 7. In an action on a policy of insur- 13. Entitling affidavit in false judgance, the Court refused upon a

141

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ment. Watson v. Walker. 315 14. Omis

14. Omission in notice of bail to describe the bail as householders or freeholders, does not, under the rule of Trinity 1831, authorise the Plaintiff to take an assignment of the bail-bond. The objection should be made when the bail come up. Bell and Another, Assignees of the Sheriff of Middlesex, v. Foster and Others. Page 334 15. A particular of demand is not to

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be construed so rigidly as to nonsuit a plaintiff for inaccuracies which could not mislead. Disbursements held recoverable under an item for "cash advanced." Harrison v. Wood. 16. The payment of costs for not proceeding to trial is not a condition precedent to ulterior proceedings, unless so specified in the rule. Wilson v. Collins. 374 17. The Defendant being in a con

dition to enter judgment of non pros for want of a declaration, the Plaintiff, with a view to prevent the non pros, obtained a rule to discontinue on payment of costs; however, instead of paying costs or discontinuing, as soon as the rule had expired, he served the Defendant with a declaration : Held a fraud on the proceedings of the Court; and the Defendant having entered up judgment of non pros, the Court refused to set it aside. Ariel v. Barrow. 375 18. Plaintiffs, spirit merchants, inadvertently delivered a bill of particulars for goods sold to Defendant in their trade of brewers. A verdict having been given for Plain

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RELEASE.

See EVIDENCE, 10.

The Plaintiff and other creditors of the Defendants signed resolutions for entering into a composition deed with the Defendants, upon their property being assigned to trustees for the payment of the creditors.

The Defendants and their trustees having refused to allow the Plaintiff to come in as a creditor under the deed, Held,

That he might sue Defendants notwithstanding the execution of the resolutions. Garrard v. Woolner and Another. Page 258

REVOCATION.

288.466

See DEVISE, 2.

RENT-CHARGE.

Defendant made cognizance in replevin, under a power of distress for an annuity granted by G. T. to H. in September 1806. Plaintiff pleaded that in May 1806, G. T., for securing another annuity, and in consideration of 3000l., granted, bargained, sold, and demised the premises in which, &c. to F. for ninety-nine years:

Held, no bar, without alleging entry by F., or that F. elected that the deed should enure by way of bargain and sale.

Held, also, that standing crops cannot be taken under a power to distrain for the arrears of an annuity. Miller v. Green. VOL. VIII.

92

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all did not sign, the deed should be void. Plaintiff never signed, nor was the amount of his debt stated:

Held, not a sufficient acknowledgment to take Plaintiff's debt out of the statute of limitations, although it was admitted orally that he had but one debt. Kennett v. Milbank. Page 38 2. Under 9 G. 4. c. 14. payment of interest within six years by one of several joint contractors takes a debt out of the statute of limitations as against all. Wyatt v. Hodson.

STRANDING.

See INSURANCE, 7.

SUBMISSION.

See ARBITRATION.

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SURETY. Defendant guaranteed the payment of porter to be delivered by Plaintiff to J.: the guaranty contained no stipulation as to the credit to be given to J. The custom of the Plaintiff was to give six months, and then, sometimes, to take a bill at two. The Plaintiff having, without the knowledge of the Defendant, given J. eleven months' credit, Held, that the Defendant was discharged from his guaranty. Coombe and Others v. Woolf. 156

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