which he has omitted to pay over, and for which the Defendant is therefore responsible under the terms of his guaranty.

The Court thought that by the express terms of the agreement between the Plaintiff and Tupling, Tupling was entitled to the commission on the bad debts, but that the Defendant was liable, under the terms of his guaranty, to make good the three sums which Tupling had, as an expedient, entered as sales to himself, the entry by way of expedient implying that the money had been received to the Plaintiff's use upon sales to other persons, and falsely entered as sales to Tupling; where upon the judgment was ordered to be entered up for the amount of those three sums, and the balance of 81.11s. 3d. found by the arbitrator, minus 147. 8s. commission on the bad debts.

Judgment for Plaintiff accordingly.

1831.

BOWER

v.

JONES,

TALBOT V. BINNS and Another.

A WRIT of pone had been issued in this case as

follows:

"William the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith. To the sheriff of Yorkshire, greeting. Lay before our justices at Westminster, on the 31st day of October, the plaint which is in your county by our writ, between Joseph Talbot and Joseph Binns and Anthony Hornby, of a plea of trespass upon the case; and give notice to the said Talbot that he be there ready to prosecute his plaint thereupon against F 4

the

Nov. 25.

The cause

assigned at the end of a

writ of pone is mere form,

and cannot be traversed by the sheriff.

1831.

TALBOT

V.

BINNS.

the said Joseph Binns and Anthony, if he be willing, and have there this writ and the other writ. Witness, ourself, at Westminster, the 21st day of June, in the first of our reign.

year

"Because the said Joseph Binns and Anthony, for the favour which the said Joseph Talbot hath in the said county, cannot obtain justice, as it is said, let this writ be executed, if the cause be true, and the said Joseph Binns and Anthony desire it, and not otherwise."

To which the sheriff made the following return:

"My answer to this writ appears in a certain schedule hereunto annexed.

"Harry James Goodricke, sheriff.

"I, Sir Harry James Goodricke, Bart. sheriff of the county of York, do hereby humbly certify and return to our lord the king, that the writ hereunto annexed, and to me directed, was delivered to me on the 28th day of June last past, being the day before my county court held at the castle of York in and for the same county, on Wednesday, the 29th day of the same June, on which day the issue joined between the said parties named in the said writ was appointed for trial, and I did thereupon in my said county court cause the said writ to be openly read whereupon and before the allowance of the said writ before the suitors of the same court, then and there came the Plaintiff named in the said writ, to wit, Joseph Talbot, and then and there alleged that the Defendants named in the said writ, to wit, Joseph Binns and Anthony Hornby had sued out and procured the said writ for the purpose of harassing him the said Plaintiff by unjust and unnecessary delays, and thereby preventing the recovery of the money and damages sought to be recovered of them the said Defendants by the said Plaintiff in and by the said plaint: and the said Joseph Talbot further then and there alleged,

that

that the cause set forth at the foot of the said writ, was falsely and untruly so set forth by or at the suggestion of the said Joseph Binns and Anthony Hornby; and thereupon the said Joseph Talbot then and there traversed and denied the truth of the cause so set forth at the foot of the said writ for the execution thereof, and offered then and there to prove that such cause so stated was untrue, and thereof put himself upon the country; and the said Joseph Binns and Anthony Hornby being solemnly called to answer the said allegations so alleged and made by him the said Joseph Talbot, and to prove the truth of the cause so set forth by them for the execution of the said writ, then and there neglected to make any answer or to join issue upon the traverse so made by him the said Joseph Talbot as aforesaid, whereupon it was adjudged by the suitors of the said court that the cause assigned for execution of the said writ at the foot thereof was untrue, and, therefore, that I ought not to put the plaint in the said writ mentioned before his said majesty as within I am commanded, wherefore I could not execute the said writ the cause therein alleged for the execution thereof not being true.

"The answer of Sir Harry James Goodricke, sheriff."

Jones Serjt., on the part of the Defendants, obtained a rule nisi to set aside this return on an affidavit that interlocutory judgment was signed in the county court before the Defendants had pleaded; that no issue was ever joined; and that a writ of enquiry was executed the day after the writ of pone was lodged with the clerk of the county court. He contended that it was imperative on the sheriff to return the plaint, and that he could not traverse the formal cause alleged for issuing

the pone.

Cross Serjt. shewed cause on an affidavit, which stated, that the action was brought to recover 6l. 12s. 8d.,

the

1831.

TALBOT

V.

BINNS.

1831.

TALBOT

V.

BINNS.

the balance of a blacksmith's bill; that the Defendants had, on the 19th of February, been duly served with a writ of justicies, and on the 6th of April with particulars of demand; had imparled; had repeatedly asked for time, and had been advised by their attornies to settle, the Plaintiff having agreed to make a small abatement; that judgment was suffered by default, and notice of enquiry given on the 14th of June; and that the Defendants were three times called on in the county court to substantiate the truth of the allegation in their writ of pone, but that neither they nor their agent appeared.

Cross admitted that it might be imperative on the sheriff to return the plaint when the pone is issued by the Plaintiff, because in his case the writ contains no allegation of the cause for issuing the pone, nor an injunction to the sheriff to act only if that allegation be true. But a defendant cannot sue out a pone without alleging a cause. Fitz. N. B. 119.; and to prevent vexation and delay upon so small a demand, the Court would hold him to the letter of his writ. The whole proceeding was disgraceful to the administration of jus

tice.

Sed per Curiam. That is an observation for the legislature. We cannot alter the practice of centuries. The allegation of cause for a writ of pone is a mere matter of form; as much so as the allegation of latitancy upon mesne process, or the affection of John Doe for the tenant in possession. In all the books there is not a single instance of such a return as the present.

Rule absolute.

See F. N. B. 70.

1831.

WALFORD V. ANTHONY, HAYCOCK, and Cooke.

Nov. 25.

ation stated

a close of the

TRESPASS. The declaration stated, that Anthony, The declarHaycock, and Cooke, the Defendants in this suit, that Defendwere attached to answer Walford, the Plaintiff, for that ants A., H., the Defendants had broken and entered a close of the and C. broke Plaintiff in the parish of Boreham, abutting towards the Plaintiff abutnorth on a close of the said Defendant, and towards the ting on a close south on Blind Lane. There was a second count for cutting down trees, and a third for carrying them away. The Defendants pleaded, first, not guilty; and then four pleas, alleging a right of way in various forms. The Plaintiff joined issue on the first plea; traversed the right of way in the four others, and newly assigned excess in the assertion of the right.

The Defendants joined issue on the traverses to the right of way, and pleaded to the new assignment, first, not guilty, and then four special pleas to so much of the new assignment as related to the trespasses whereof the Plaintiff had complained in his second and third counts, and which were not justified in the Defendants' second, third, fourth, and fifth pleas.

The Plaintiff joined issue on the first plea to the new assignment, and traversed the matter alleged in the four others, upon which traverses issue was joined. The pleadings were of great length.

At the trial before Gaselee J. it appeared that the close in Boreham in which the alleged trespasses had been committed, was bounded on the south, indeed, by Blind Lane, but on the north by a close of the Defendant Anthony; whereas the allegation in the declaration that it abutted on the north on a close of the said De

fendant,

of the said Defendant. The Plaintiff's close abutted

on a close of the Defendant

A.

Held, an ambiguity, and not a variance.