/y^^^^% /2^ /^:f^y'^f^-^^:^'r-:/ /'^r^^e^^^^*<.u^>^*^^ ANALYTICAL DIGEST SELECTED PRACTICE CASES, DECIDED IN tEfie Common itato Courts?, TO TRINITY TERM, 1847; ARRANGED UNDER THE SEVERAL HEADS OF PRACTICE, FACILITY OF REFERENCE. RICHARD MORRIS, OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. LONDON : V. & R. STEVENS AND G. S. NORTON, Hato 2oO0fe^cUcr^ antf ^3uLIi^I)cr^, CSitccessors to the late J. &, W.T.CLAR K E, of Portugal Street,) 26, BELL YARD, LINCOLN'S INN, AND 194, FLEET STREET ; a:nd kodgks & SMiTjr, Dublin, M2CCCXLVII. 1847 LONDON : ■WILLIAM STEVEKS, PRINTER, BELL YAKD, TEMPLE BAK. fe ADVERTISEMENT. The design of the present Digest has been to furnish a Selection of Cases, connocted with the Practice of the Common Law Courts, with a special view to an immediate and easy reference ; and, in that particular, to obviate an inconvenience incidental to the arrangement of the several existing Digests, which embrace with practice legal details generally. With respect to the classified arrangement of the subject matter, coupled with the Analytical Index, the compiler is led to hope the work will be found to answer the purpose contemplated. From a desire on his part, not to encumber it with matter, which alterations in the prac- tice have, in a great degree, rendered obsolete, the com- piler has deemed it expedient to have had recourse to considerable retrenchment in the selection of cases, which he apprehends will not be found a defect ; but as he is aware the publication is susceptible of much improvement, his attention will be directed to the attainment of that object in a future edition. Kensington, 1st October, 1847. 783356 CONTENTS. Abatement of suit Admission of documents Affidavit, in general - ,, entitling of „ JURAT OF ,, of merits ,, filing of Amendment Appearance Arbitration Arrest Attachment Attorney Award Bail, holding to ,, deposit in lieu of Bill of exceptions Certificate Cognovit Computation of time Consolidation of actions Costs Declaration Demurrer Discontinuance Distringas Distringas juratores Ejectment Error, writ of Execution Inferior courts Inspection of documents Interpleader Irregularity page 1 2 3 7 12 14 15 17 20 24 29 31 38 46 59 (il 63 64 69 71 72 73 86 92 97 99 99 105 123 125 128 132 133 142 CONTENTS. Judgment ,, as in case of nonsuit Jury Motions New Trial Nisi Prius Nolle pnosEaui NON PROS. Nonsuit Notice of action ,, trial ,, to produce NuL TIEL RECORD Office copies Order, judge's Outlawry Oyer Particulars of demand ,, BY defendant Pauper Pleading ,, puis darrein continuance ,, in abatement Prisoner .... Prochein amy Recognizance Record Rules . . . • Sheriff Setting asiee or staying proceedings Special case Taxation Term's notice Venue, changing of Vep.dict Warrant of attorney Witness Writ . . . • Writ of trial LIST OF THE REPORTS AND ABBREVIATIONS IN THIS DIGEST. Abbreviations Ad. & E. Ad. & E., N. S. Anst. Arn. Barn. & Aid., or B. & Al Barn. & Ad., or B. & Ad Barn. & Cr., or B. & C. Bing. Bing. N. C. . H. Black. B. C. Rep. . Bos. & P., or B. & P. Brod. &Bing., orB. &B C. B. . Car. & Kir., or C. & K. Car. & Mar., or C. cSc M Car. & P., or C. & P. Chit. Rep. Cowp. Crom. & J., or C. & J. Crom. & Mee, or C. & M. Crom. Mee. & R., or C. M. Dav. &Mer., or D. & M Doug. Dowl. . Dowl. N. S. Dowl. & L. Dowl. &R., Durn. &E. Gal. & Dav. Har. & W. Horn & H. Jur. Law J., K. B.,orQ. B. Law J., C. P. . Law J., Ex. Law J., M. C. . M'Clel. or D. & R. or G. & D & R. Reports. Adolphus and Ellis. Adolphus and Ellis, New Series. Anstrutber. Arnold. Barnewall and Alderson. Barnwall and Adolphus. Barnwall and Cresswell. Bingham. Bingham's New Cases. H. Blackstone. Bail Court Reports. Bosanquet and Puller. Broderip and Bingham. f Common Bench Reports, by Manning, \ Grainger and Scott. Carrington and Kirwan. Carrington and Marshman. Carrington and Payne. Chitty's Reports. Cowper. Crompton and Jervis. Crompton and Meeson. Crompton, Meeson and Roscoe. Davison and Merivale. Douglas. Dowling's Practice Cases. Dowling's New Series. Dowling and Lowndes. Dowling and Ryland. Durnford and East. Gale and Davison. Harrison and Wollaston. Horn and Hurlstone. Jurist. J Law Journal, King's Bench, or Queen's \ Bench. Law Journal, Common Pleas. Law Journal, E-Kchequer. Law Journal, Magistrates' Cases. M'Cleland. VUl ABBREVIATIONS. Abhreviations. M'Clel. &Y. . Moo. & Rob., or M. & R. Man. & G. Man. G. & S. Man. & Ry., or M. & R. Marsh. Mau. & S., or M. & S. . Mee. & W.,or M. & W. Moo. & M., or M. cSc M. Moo. cS: P., or M. & P. Moo. & S., or M. & Sc. Nev. & M., or N. & M. Nev. &P., or N. & P. Per. & Dav., or P. & D. Pr. Q. B. . Ry. & M. Sc. . Sc, N. S. Sim. T. R. . Taunt. Tvrw. . Tyrw. &G., or T. & G. W. \V. & D. W. W. & H. Well. . Reports. M'Clelanil and Young. Moody and Robinson. Manning and Grainger. ' Manning, Grainger and Scott, Common Bench Reports. Manning and Ryland. INIarshall. Maule and Selwyn. Meeson and Welsby. Moody and Malkin. Moore and Payne. Moore and Scott. Neville and Manning. Neville and Perry. Perry and Davison. Price. J Queen's Bench Reports, by Adolphus and { Ellis. Ryan and Moody. Scott. Scott's New Series. Simon. Term Reports (Durnford and East.) Taunton. Tyrwhitt. Tyrwhitt and Grainger. \Villmore,Wollaston and Davison. Willmore, WoUaston and Hodges. Wollaston, Practice Cases. TABLE NAMES OF THE CASES REPORTED. Cases. ABBOTT V. Clarke . V, Greenwood . V. Richards Abbotts V. Kelly Abernethy v. Paton Abington v. Lipscomb Abraham v. Cook Abrahams v. Taunton Abthorpe v. Fisk Ackwood V. Read Adams v. Brown V. Power V. Rowe Ade V. Stubbs Adkins v. Anderson Agassiz and wife v. Palmer Aitraan v. Conway . V. Conway . Aked V. Stocks Alcock V. SutclifTe Alden v. Story . Alderson v. Davenport V. Waistell Reporters. This Digest. Page. 2 Car. & K. 2Q'J . . Interpleader . 139 7 Dowl, 534 . Irregularity 143 3 Dowl. & L. 487 "1 15 Law J., Ex. 330 . i- Sheriff . 262 4 Scott, 256 V Distringas GLawJ., C. P. 112 . 104 5 Bing. N. C. 27(3 8 Law J., C. P. 205 . • 1 Costs . 78 11 Law J., Q. B. 15 . Judgment 146 3 Dowl. 215 . Demurrer . . 93 1 Dowl. &L. 319 Costs 85 GBing. N. S. 17 8 DowL 6G !> Outlawry . . 212 5 Mec. & W. 542 . 1 7 Dowl. 810. V Pleading . 232 1 Law J., C. P. 167 . 1 Dowl. 273 1- Costs . 74 7 Car. & P. 76 Distringas juratores 99 10 Jur. 840 Award 48 4 Dowl. 282 , Writ . 320 10 Mee. & W. 12 > Pleading 1 Dowl. N.S. 87 7 . 241 1 Dowl.& L. 18 . Bail . 61 3Mee. &W. 71 6 Dowl. 76 . |- Pleading 226 G Dowl. 7G 3 Mee. & W. 71 . > Declaration . 88 4 Bing. oOi) 1 M. & P. 346 . |- Notice of action l';8 11 Jur. 126 Warrant of attorney 292 12 LawJ.,Q.B. . Costs . 79 1 DowL&L. Irregularity 142 V. Sherwin . 7 C. & P. 339 . Certificate . 67 Andrews v. Thornton r 8 Bing. 64 . 1 1 M. c% So. 139 •jjury 171 Angel V. Ihler . 5 Mee. & W. 163 . Affidavit . 3 V. Ihler 5 Mee. & W. 600 Writ of trial . 329 Angus V. Coppard r3Mee. &W. 57 . •16 Dowl. 137 . •jWrit . 304 V. Medwin 7 Law J., Ex. 10. . Writ 304 V. Wootton . 3 Mee. .% W. 310 Interpleader 134 Annan v. Job 10 Jur. 926 Award 59 Ansterw. Holland . 10 Jur. 786 Stay proceedings 265 Anslow V. Cooper . 2 Dowl. & L. 449 . Judgment nonsuit 158 Apothecaries' Company "•|4 P. &D. 292 . Writ of error 124 Harrison Applegarth v. Colley 11 Law J., Ex. 350 . Interpleader . 134 Arcbbold v. Smith . J 1 Mee. cS: W. 740 1 1 T. & G. 949 . I Writ of error 123 Archer v. Bamford . 1 C. & P. 64 . Jury 171 V. Brindley 9 Dowl. 38 . . Distringas . 101 _ — V. Garrard r 3 Mee. & W. 63 •16 Dowl. 132 V Pleading . 230 . V, Smith 9 Dowl. 99 Judgment nonsuit 158 TABLE OF CASES. XI Cases. Arden v. Garry . v. Jones Argent v. Reynolds Ariel v. Barrow Armitage v. Grafton Armstrong v. King . Arnell v. Wetherby Arthur v. Marshall . Ashburton v. Sykes Ashby and others v. Bates Ashley v. Flaxman . Ashlia V. Langton Ashton V. Johnson . Ashworth v. Earl of Uxbrid| Askenheim v. Colegrave Aston V. Greathsad . V. Peiks and anothe V. Perks Atkins V. Meredith Atkinson v. Baynton V. Clean V. Howell V. Jones V. Warne Attorney-General v. Bovet V. Donaldson V. Duramie V. Hallett . V. Jeyes . V. Kingston V. Parsons V. Ray V. Reilly V. Rogers . V. Smith (Geo.) Austin V. Grange Reporters. . 2 Scott, 186 4 Dowl. 120 . . 6 Dowl. 480 rSBing. 375 tl Law J., C. P. 117 . lOJur. 377 8 Dowl, 297 r I C. M. & R. 831 ' 1 4 Law J., Ex. 123 / 13Mee. & W. 465 t 2 Dowl. Sc L. 376 1 Dowl. & L. 133 15 Law J., Ex. 349 2 Dowl. 697 . r4M. &Sc. 719 . [3 Law J.. C. P. 264 r 8 Dowl. 299 [4 Jur. 172 : 12 Law J., Q. B. 39 / 13 Mee. & W. 620 {2 Dowl. &L. 642 J 2 Dowl. N. S.547 \6 Jur. 1000 15 Mee. & W. 385 9 C. & P. 231 . 4 Dowl. 658 . / 1 Biug. N. S. 740 t 1 Scott, 424 . 5 Dowl. 252 f 10 Law J., Ex. 64 t 7 Mee. & W. 213 1 Dowl. & L. 225 6 C. & P. 687 f 15 Mee. & W. CO \ 15 Law J,, Ex. 155 10 Law J., Ex. 139 2 C. & M. 393 . 15 Mee. & W. 97 2 C. & J. 352 ril Law J., Ex. 72 L 8 Mee. & W. 163 2 Mee. & W. 28 ril Mee. & W. 464 \l Dowl. & L. 278 r 13 Mee. & W. 676 I 2 Dowl. & L. 690 11 Mee. cSc W. 670 MS. Exch. E. T. 1845 4 Dowl. 576 This Digest. Page. Writ . Writ Writ , - Non pros. Costs Writ •Writ . Award 299 259 309 195 74 293 313 54 Writ of trial . 327 Nisi Prius . 190 Judgment nonsuit 163 ■ Warrant of attorney 230 ■ Judgment nonsuit 166 Sheriff . . 261 Bail . . 61 > Appearance Pleading Nisi Prius Motion . Y Demurrer Distringas I Writ . Arbitration Nisi Prius > Witness . Pleading Pauper . Record Affidavit Affidavits } Jury 1- Amendment > Witness . New trial . Rules Affidavit 20 233 193 174 96 100 307 26 187 294 230 224 253 16 9 172 20 293 185 259 13 B. Baddely v. Gilmore r 1 Mee. & W. 55 \ 5 Law J., Ex. 115 h- itness 293 Cases. Baden v. Flight Badmaa v. Bateman V. Pugh V. Pugh , Badnall v. Hall Bailey v. Anderson Bailey v. Baker TABLE OF CASES. Reporters. f 5 Scott, 273 ,. . \f) Dowl. 177 .. . . 2 Dowl & L. UO . N. S. 907 . & G. 381 . 1 Dowl. & L. 540 . M. & W. 535 . . Dowl. 19 . . . MS. Exch. E. T. 1845 9 Mee. &cVv. 769 . J 2 Dowl. I I 5 Man. & . 1 D (-4 ]M l7D Bailey and others v. Bellamy "I ,q ^^^ j_ q_ g^ 41 and others ... J ' V. Chitty Bailly v. Wilkinson Baker v. Hunter V. Neave V. Rye i\ Sydee Baldwin v, Atkins Ball V. Hamlet 1-. Haydon V. Ross V. Stafford V. Stanley . Balls V. Strutt Balmanno and others v Thompson Balson v. Meggatt Bambridge i\ Houlton Bane v. Jones Bank of England v. Reid Banks v. Wright Banks v. Newton . Barber I'. Wilkin s V. Wood Barehead v. Hall Barliam r. Lee Barker, in re V. Birch V. Hollier . V. Malcolm . V. Richardson V. Richardson V. Stead V. Weedoa . Barley v. Disney { 2 Mee. & W. 28 . . 5 Dowl. 307 .• . 2 Doug. 671 . . . 16 Law J., Ex. 203 . r 2 Law J., Ex. 40 jlC. &M. 112 . . 1 Dowl. 089 .. . 7Taun. 178 .. . 2 Dov.l. 591 . . . r 1 C. M. & R. 575 . I 3 Dowl. 188 . . 9Jur. 711 . . . rlM.&G. 445 I I Scott, N. C. 217 . r4 Dowl. 327 . . . \ 2 Scott, 420 . , . 6 Mee. & W. 396 . 7 Law J., Ex. 7 . . r8 Dowl. 76 . . . I 6 Bing. N. S. 153 f 4 Dowl. 557 . . . \ 1 Har. & W. 659 . 3 East, 21 . . • 8 D. &R. 114 , . 7 Mee. & W. 159 . 3 DowL 14 . . . [10 Law J., Q. B. 142 tllJur. 208 . . . 5 Dowl. 305 2M. &R. 172 . . 9 Law J., Ex. 323 , 4 M. & Sc. 327 y Jur. 976 . . . . 12 Law J., C. P. 1 . riO Law J., Ex. 474 . 18Mee. &W. 513 . 7 C. tV P. 101 . . 1 Y. & J. 362 . . 1 Y. & J. 302 . . 10 Law J., C. P. 160 r 3 Law J., Ex. 341 . I 1 C. M. & K. 396 . MS. Exch. T. T. 184 This Digest. Page. Costs . . 82 Distringas . 103 Orders . , 208 Judgment nonsuit 163 Costs . . 76 Rules . . 255 Pleading . . 236 ■ Warrant of attorney 284 Inferior courts . Judgment nonsuit Award 128 164 53 90 V Declaration Attachment . 35 Execution . . 127 Warrant of attorney 286 239 |- Pleading Amendment I Costs > Pleading Bail Appearance |- Pleading I Sheriff . Affidavit Affidavit Outlawry Judgment nonsuit >■ New trial Judgment nonsuit Attachment Orders Rules Attorney 19 75 231 00 23 228 261 12 6 212 170 179 160 37 208 258 45 Computation of time 72 - Certificate . Nisi Prius Affidavit Plea in abatement Judgment . >■ Writ Distringas . 67 192 ' 16 247 156 312 103 TABLE OF CASES. Cases. Reporters. Barnes v. Bank of England V. Pendrey V. Whiteman Bamett v. Cox and another V. Glossop Bartlett r. Bartlett Barton v. Warren Barrack v. Newton Barratt v. Price 7 Dowl. 319 . . . 7 Dowl. 747 9 Dowl. 181 .. . 16 Law J., Q. B. 80 3 Dowl. 625 . • . 11 Law J., C. P. 223 375 . . . 1. & L. 142 . 1 Ad. &E.,N. S.525 r 1 Dowl. 725 . . . • \ 2 M. & Sc. 634 . . ■D ....-M • i.- CI. 19 Law J., Ex. 145 . Barrett Navigation f. shower -i „ ri i i -o =■ [8 Dowl. 1/3. . . j 7 Dowl. 417 . . . [5 Bing. N. S. 487 . J 10 Jur. \ 3 Dowl Partington Carter Bartholomew -i Barton r. Gill V. Warren V. Warren Bartrum r. Williams Bass V. Cooper Bastard v. Smith . V. Smith V. Trutch Bate V. Bolton . V. Bolton V. Lawrence Bateman v. Badham V. Dunn 3 Dowl. 10 Jur. Bates r. Turner , ' V. Sturges Bayley v. Brickland & others V. Western . Beard v. McCarthy Bearup v. Peacock Beaumont v. Dean Beckham v. Knight Bedwell v. Coulstriug Beesley v. Dolly . Beeton v. Jupp V. Jupp Beeston v. Beckett •{ r 3 Dowl [10 Jur 14 Bin IGDo^ •{: This Digest. Page. Interpleader . 141 Cognovit . . 69 Nonsuit . 197 Notice of action 199 Writ of trial . 330 Staying proceedings 266 |- Staying proceedings 267 10 LawJ., C. P. 257 1 Dowl. lV L. 593 . 6c L. 142 . 375 . . &L. 142 375 . N. C. 301 . 397 .. . 2 Mee. & W. 310 . 5 Ad. & E. 25 . . 6 LawJ., K. B. 8 2 M. & R 129 . , 3Ad.&E.451;4Dowl. 4 Dowl. 677 . . . 2C. M.&R. 365 . 2 C. M. & R. 365 . 4 Dowl. 160 .. . 13 Law J., C. P. 147 13 Law J., Q. B. 263 Jur. 010 ... Eing. N. S. 49 . . Dowl. 105 10 Moore, 32 . . . 2 M. & Sc. 172 MS. Exch. T. T., 184 7 Dowl. 601. . . , 9 Dowl. 136 . . J 2 Dowl. & L. 850 . t 14 Mee & W. 149 . r 1 Tyrw. & G. 209 . t 4 Dowl. 304 . . . 7 Dowl. 409 .. . riOJur. SIO . . . 1 1 B. C. Rep. 97 . . J 6 Bing. N. S. 27 . I 8 Scott, 243 . . , , 15 Law J., Ex. 120 ri5 Mee. & W. 149 . 13 Dowl. Sc L. 474 . . 4 M. & Ry. 100 . Rules * |- Prisoner ■ V Orders i- Judgment Pleading Writ . 259 250 207 150 231 318 Judgment 147 Staying proceedings 267 Declaration 89 Pleading 243 Pleading . . . 230 Nisi Prius 192 Writ .... 322 Appearance . 21 Non pros. . . . 195 Warrant of attorney 292 Distringas . . 103 Bail 59 Writ .... 321 Witness ... 295 Appearance . . 23 Warrant of attorney 289 Costs .... 78 52 5 123 224 234 161 97 143 I Award . . . . I Affidavit . . . Error of writ . . t- Pauper . . . i- Pleading . . . Judgment nonsuit V Discontinuance . Irregularity . . TABLE OF CASES. Cases. Begbie v. Grenville V. Grenville Belcher r. Maberley r. Magney and others V. Mcintosh . Bell ('. Jacobs Belloti V. Barella Benazinck v. Bessett Bendix v. Wakeraan Benn v. Stockdale & another Bennett, ex parte V. Simmonds V. Skardon Benthall v. West . Bentley v. Carver V. Fleming Benton v. Tolkington Benwell v. Oakley . Beresford v. Easthope Berkeley v. De Vere Berney v. Green . Bernie v. Read . Berridge ti. Priestly Berrington v. Phillips Best, ex parte V. Gompertz Best V. Prior Betts V. Applegrath Bettyes v. Thompson Bevan v. Bevan . Beverley v. Christie • V. Walter . V. Walter Beynon v. Jones . Bicknell v. Wetherell Biffin andanr. assigs. 2;.Yorki Bignall v. Gale Bill V. Bament • Billing V. Coppock . ■ V. Higlitley V. Railton ?;. Turner and others Bilton V. Clapperton . Bird V. Higginson . — — II. Manning Birkett v. Holme Reporters. 3 Dowl. 502 .. . 3 Law J., Ex. 21 . 2 M. & Sc. 189 . . 3 Dowl. & L. 70 r 8 C. & P. 720 . . . [2 M. & R. 186 4 Bing. 523 ... 4 Dowl. 7iy . . • '14 Law J., C. P. 148 [2 Dowl. &L. 801 . 12 Mee. & W. 97 . MS. Exch.E. T. 1846 11 Price, 770 2 Dowl. cSc L. 98 . . 5 M. cSc R. 10 . . 1 Dowl. & L. 599 . 15 Law J., C. P. 173 f 3 Dowl. cSc L. 23 . [1 M.G. & S. 479 MS. Exch. M. T. 1846 2Taun. 174 . . 8 Dowl. 294 . . . 15 Law J., Q. B. 323 12 Moore, 174 . . 14 Law J., a B. 247 5 Dowl. 306 .. . 1 Mee. & W. 48 . . 3 Dowl. 33 . . . r2C.&M.427 . . I 2 Dowl. 395 .. . 2 Dowl. 189 . . . 4 Bing. 267 ... 7 Dowl. 322 . . 3 T. R. 60 10 Law J., Ex. 128 8 Dowl. 418 . 8 Dowl. 418 ri5 Law J., Ex. 303 . [3 Dowl. cSi L. 667 J 10 Law J., Q. B. 345 I 6 Jur. 366 . 12 Law J., C. P. 162 10 Law J., C. P. 169 riO Law J., Ex. 302 \8 Mee. & W. 317 . MS. Exch. T. T. 1847 J 5 Bing. N. S. 629 . \ 7 Scott, 844 2 Dowl. & L. 771 . MS. E.-?ch. T. T. 1846 9 Mee. & W. 473 2 Ad. & E. 160 13 Law J., Q. B. 123 4 Dowl. 556 . This Digest. Page. Nul tiel record . 205 Judgment nonsuit 157 Interpleader . . 134 New trial ... 180 Nisi Prius . . 189 Arrest .... 29 Declaration . . 87 Costs .... 74 Pleading ... 246 Rules .... 258 Recognizance . 252 Judgment . . . 148 Award . . .55 Notice of trial . 202 New trial . . . 183 ■New trial . . 180 Discontinuance . 98 Execution . . 127 Witness ... 294 Particulars demand 219 179 28 93 278 132 70 125 227 310 12 103 327 196 249 313 70 58 14 272 95 New trial . Arbitration Demurrer Taxation . . J Inspection of dO' L cuments J Cognovit . . Writ of error Pleading . . M^it . . . Affidavit . Distringas . Writ of trial . Nonsuit I Prisoner . I Writ . Cognovit Award Affidavit Taxation Demurrer Writ trial . . 326 Appearances . 23 Wnt . . .310 New trial . 177 Warrant of attorney 292 Attachment . 31 TABLE OF CASES. Cases. Birkhead and another ?;. North Birt V. Leigh . Bittleston v. Cooper . Black V. Lowe . . \ Black V. Sangster . . j Blackburn v. Edwards . \ V. Godrick . Blackwell v. Allen • Blake v. Warren . Blanchard v. De la Crowe . < Blancheney».Burtand others Bland v. Dax . ' V. Delano . V. Warren Blandy v. Webb . Blewett V. Tregonning Bligh V. Brewer . Blissett V. Tenant . Bloor V. Cox Blow V. Wyatt Blundell v. Hansom Blunt V. Cook . V. Heslop . Board v. Parker Bodenham v. Hill Bodfield V. Padmore Bodley v. Reynolds Bogue V. Milles Bohrs V. Sessions Bold V. Wainwright . Bolton V. Manning Bond V. Bailey V. Woodhall Bonson v. Element . Bonwell v. Hinxman Boodle V. Davies Booth V. Howard V. Milns . V. Milns V. Parker V. Steer w Reporters. IG Law J., Q. B. 284 1 Car. & K. 611 14 Mee. & W. 399 10 Jur. 953 16 Law J., Ex. 56 I C. M. & R. 521 5Tyrw. 171 10 Ad. & E. 21 8 Law J., Q. B. 200 9 Dowl. 337 . 10 Law J., Ex. 65 8 Dowl. 173 . II Jur. 283 16 Law J., Q. B. 181 12 Law J., Q. B. 291 15 Law J., Q. B. 1 10 Jur. 8 6 Dowl. 293 6 Dowl. 21 3 Tyrw. 235 4 Ad. & E. 1002 1 C. M. & R. 651 5 Tyrw. 222 . 7 Law J., C. P. 108 4 Bing. N. C. 168 6 Dowl. 266 7 Dowl. 86 ' . 4 Mee. cSt W, 407 2 Mee. & W. 243 5 Dowl. 457 11 Law J.,C. P. 321 8 Ad. Si E. 577 . 3 N. & P. 533 . 7 East, 46 . 7 Mee. & W. 274 8 Dowl. 862 5 Ad. & E. 785 15 Law J., Q. B. 152 4 Doug. 180 2 Dowl, 710 . 10 Jur. 396. 5 Dowl. 769 . 3 Dowl. 808 2 C. M. & R. 601 5 Law J., Ex. 9 ■ 6 Car. & P. 230 1 C. M. & R. 935 3 Dowl. 500 . 4 N. & M. 788 . 5 Dowl. 438 . 15 Law J., Ex. 354 15 Law J., Ex. 354 ■ 3 Mee. & W. 54 6 Dowl. 87 . 1 Dowl. & L. 374 This Digest. Page. Costs . . 84 Nisi Prius . 193 Warrant of attorney 284 V Orders J- Amendment > Pleading Judgment Affidavit Taxation Inferior court Judgment I Affidavit . Interpleader New trial . Execution Judgment . V Cognovit . I Writ of trial Bail y Costs . 208 17 227 145 13 271 130 148 10 141 182 128 145 70 323 62 80 243 > Pleading Particulars demand 217 > Attorney Attorney 1- Pleading Motions . Affidavit Writ Costs . New trial Pleading Writ of trial > Interpleader Jury . > Award 46 39 238 175 11 306 73 179 226 328 136 174 46 55 Award Particulars demand 216 New trial . 177 Nisi Prius . . 190 •Judgment Prisoner 150 250 TABLE OF CASES. Cases. Border r. Levi Bordier ?'. Barnett Bosley v. Moore Boston, Lord, v. Merham Bothwick V. Ravenscroft . Boucher v. Simms Bouike v. Lloyd Bowden v. Home Bower v. Kemp r. Kemp Bowles r. Bilton V. Neale Bowser v. Austin Bowyer r. Cook . Boyle V. Brandon Bradbee v. Governors of Christ's Hospital Bradley v. Gray Bragg V. Hopkins Braham v. Roberts . Braine v. Hunt . • V. Hunt . 370 Reporters. ' 1 Bing. N. S. 3(52 1 Scott, 270 ' 10 Jur. 35 3 Dowl. & L 8 Dowl. 37.") 8 Dowl. 80 7 8 Law J., Ex. 160 .5 Mee. & \V. 31 2 C. M. & R. 392 4 Dowl. 173 12 Law J.. Ex. < 7 Bing. 714 1 C. & J. 287 . 1 Dowl. 281 1 C. & J. 287 . 1 Tyrw. 260 2 C. & J. 474 . 7 C. & P. 262 2 C. & J. 45 . 11 Jur. 333 MS. Esch. E. T Braith waiter. Montford, Lord, Bramidge v. Adshead Brandon v. Edwards . Branscombe v. Scarborough Branson v. Didsbury Brashaw v. Russell . . < Brazil, Emperor of, v. Ro- "1 binson .... J Breach v. Casterton . . < Breese v. Jerdein and others Brett V. Stone . Brewer r. Pierpoint Bridge v. Wright . . -j Bridgeford v. 'Wiseman Bridger v. Austin . . -) Briggs V. Burnard Brisco V. Stevens Bristowe v. Needham . . s Brockbank v. Anderson and another . . . Brokenshir v. Monger 840 11 Law J., C. P. 209 16 Law J., C. P. 26 3 Dowl. 346 . 1 Scott, 364 2 Dowl. 391 . 2 C. & M. 418 . 3 Law J., Ex. 85 2 C. M. & R. 403 2 Dowl. 59 2 Dowl. N. S. 225 6 Ad. & E., N. S. 13 10 Law J., Q. B. 10 7 Law J., C. P. 18 5 Scott, 26S . 5 Dowl 522 . 1 N. &P. S17 . 7 Bing. 224 4 M. & P. 867 12 Law J., Q. B. 234 1 Dowl. & L. 140 . MS. Exch. E. T. 1847 4 N. & M. 5 . 2 Ad. & E. 48 . MS. Exch. H. T. 1847 1 Dowl. 272 . 1 M. & Sc. 520 . 6 Law J., C. P. 210 2 Bing. 213 . 8 Scott, N. S. 366 7 Man. & G. 648 . 13Law J., C. P. 102 9 Mee. & V\'. Ill This Digest. Page. Writ . . 310 i- Judgment nonsuit 166 Particulars demand 218 Arbitration I Affidavit . Y Attachment Awards Nolle pros. V Plea in abatement > Judgment Declaration Kisi Prius Distringas . Certificate Pauper Arbitration Declaration Interpleader Demurrer . Rules \ Interpleader Writ Interpleader Rules Stay proceedings New trial . I Writ 1- Costs . 1- New trial Notice of action Costs . Judgment nonsuit 1- Costs . Judgment nonsuit \ Declaration Writ Inferior courts 1- Judgment Special case Pleading . 28 35 47 194 246 154 87 192 100 67 224 25 92 135 96 257 135 304 135 254 266 180 317 75 179 200 81 161 77 162 89 304 129 149 270 240 TABLE OF CASES. xvu Cases. Bromage v. Ray Bromley v. Gerish Brook V. Edridge V. Finch V. Lloyd . V. Tidy V. Fearns Brooks 5. Farlar . V. Hodgson , V. Hodgson V. Parsons V. Roberts . Brown v. Austin V. Austin . V. Bamford V. Clarke . ■ V. Clarke V. Croydon Canal Company V. Edwards r. Fullerton V. Granville, Lord V. Jenks V. Kennedy V. M'Millan V. Nelson V. Nelson . V. Probert V. Smith V. Wright Bruce v. Y/ait Brunn v. Hutchinson Brunt V. Wardell Bryan v. Wagstaff . Bryant v. Perry . V. Wagner Brydges v. Fisher Bucknall v. Boydell Budd V. Powting ButHe V. Jackson Build V. Wightman Bull V. Falkener V. Pinkers . V. Turner ■{ Reporters. 9 Dowl. 551) . 13 Law J.,C. P. 16 6 Man. & G. 750 2 Dowl. 647 6 Dowl. 313 . 1 Mee. cSc W. 552 10 Jur. 967 2 Dowl. 144 5 Dowl. 361 . 1 Bing. N. S. 291 7 Man. & G, 529 7 Man. & G. 529 1 Dowl. & L. 691 14 Law J., C. P. 168 2 Dowl. & L. 13 4 Dowl. 161 4 Dowl. 161 . 9 Mee. & W. 42 . 12 Mee. & W. 25 1 Dowl. & L. 409 13 Law J., Ex. 36 9 Ad. & E. 522 . 8 Law J., Q. B. 92 14 Law J., Q. B. 17 2 Dowl. & L. 520 13 Mee. & W. 556 2 Dowl. & L. 251 4 M. & Sc. 333 [2 Dowl. 796 4 Dowl. 581 2 Dowl. 639 . 10 Law J., Ex. 147 13 Mee. & W. 397 2 Dowl. & L. 405 1 Dowl. 659. . . 8 Dowl. 835 1 Dowl. 95 ri Scott, N. S, 181 1 1 M. & G. 1 . 2 Dowl. & L. 43 . [4 Scott, N. R. 188 \ 1 Dowl. N. S. 229 (2 C. 6iP. 125 . 1 1 Ry. & M, 329 . r 5 Bing. 414 \2M. &P. 760 . 7 Dowl. 676 4 M. & Sc. 458 . 7 Scott, 171 MS. Exch. H. T. 1847 2 Dowl. 505 1 Dowl. 545 . 1 Dowl. & L. 913 5 Scott, 617 , r 4 Dowl. 734 1 1 Mee. &. W. 47 This Digest. Distringas . ■Affidavit Page. , 104 15 Appearance . 21 Pleading . . 239 Judgment, nonsuit 159 Writ of trial . 329 Judgment . . 148 > Particulars demand 216 Judgment . 152 Writ . . .318 Award . . 59 ■Appearance Pleading . Affidavit . Judgment Costs - Costs . - Award • Affidavit .Writ . 23 227 15 155 79 83 48 10 303 Error, writ of . 124 Attachment . 33 Judgment, nonsuit 159 Bail 60 Costs . 83 Witness . 296 Office copies 206 Award 51 Costs 74 |- Inferior courts Sheriff . 129 264 |- Pauper 222 I Outlawry 214 V Pleading 244 Pauper . 225 Witness 293 Taxation 272 Attachment 32 Writ 311 Warrant of attorne v289 Distringas ' 101 Jury . 171 1 Bail 62 XVIU Cases. Bully V. Foulkes Burch V. Pointer - r. Poynter . Burdiken v. Potter . Burdon v. Fowler Burgess v. Langley . V. Swayne . Burgh V. Scholefield Burley v. Stephens V. Worral Burn V. Manning Burrell v. Nicholson Burrows v. Unwin Burton v. Chesterfield Bury V. Dunn Bush V. Sayer . Bushell V. Slack . Bush V. Pring . Butcher v. Kiernan Butler V. Ford V. Grubb . ■ V. Hobson Butterworth v. Williams Byfield v. Street Byrn v. Dibdin . TABLE OF CASES. Reporters. 9 Law J., Ex. 185 [3 Mee. & W. .310 1 7 Law J., Ex. 6:i [3 Mee. & W. 310 1 6 Dowl. 387 r 9 Mee. & W. 13 { 11 Law J., Ex. 82 7 Dowl. 786 . 1 Dowl. & L. 21 . 7 B. & C. 485 . [9 Mee. & W. 478 1 2 Dowl. N. S. 2G1 1 Mee. &W. 15(i 1 Dowl. & L. 115 12 Law J., Q. B. 4 [ 6 C. & P. 202 . 1_ 1 M. & R. 304 . 3 C. & P. 310 . 9 Jur. 373 . 1 Dowl. & L. 141 f 14 Law J., C. P. 35 [ 2 Dowl. cSc L. 602 r 10 Jur. 94 7 [16 Law J., Q. B. 3 9 Dowl. 180 2 Marsh. 364 . ^1 C. &M. 662 . 3 Tyrw. 677 . "3 Doug. 217 ^5 Scott, 824 . 7 Law J., C. P. 148 1 B. C. Rep. 168 "3M. &Sc. 407 . 2 Dowl. 739 . 1 C. M. & R. 821 5 Tyrw. 357 . This Digsst. Page. . 1 leauiiig > Taxation 271 V Taxation 270 • I Affidavit Jury . . New trial. 12 173 184 Particulars demanc 216 ■ ^Interpleader 141 . Award 47 Motion 174 . Outlawry 212 I Nisi Prius . Jury . Attorney Certificate 191 174 42 65 ^Attorney 45 |- Judgment, nonsuit 166 , Jury . 171 Judgment, nonsuit 161 ' j- Notice of action . Costs 198 83 V Taxation Motion 274 176 • j Writ 301 I Arrest 29 c. Caldwell v. Blake Calvert v. Redfei'n . V. Tomlin . Candy and Deanr. Maugham Cane v. Spinks Canham v. Fisk . Cann v. Facey Canterbury, Archbp. v. Tubb Capes V. Jones . Capner and others v. Mincher j and others ... Garden v. Gen. Cemetery Co. 2 C. M. & R. 249 . 1 r. 1 ♦■ 4 Law J., Ex. 200 . | Declaration 87 2 Dowl. 505 . . Attachment . 31 5 Bing. 1 ; 2 M. & P. 1 Judgment . 149 13 Law J., C. P. 17 Interpleader 137 7 Dowl. 27. . . Particulars demand 218 2 C. & J. 126 . . 1 ,. , . , 2 Tyrw. 155 . .) New trial . , 181 5 N. cSi M. 405 . Certificate 64 5 Dowl. 627; 3 Bing. 789 Oyer. 215 10 Jur. 393 . . Writ of trial . 327 13 Mee. &W. 704 . 1 „, j- 2 Dowl. &L. 694 . | Pleading . . 229 7Scott,348;7DowL425 Writ of error . 123 TABLE OF CASES. XIX Cases. Cardross, Lord, in re . A Carmichael v. Houchen . Carpue v. London & Brighton f Railway Co. . . . \ Carr v. Edwards V. Smitiiers Carson v. Dowling . Carter v. Jones . V. Jones . Cartwright v. Blackworth . Casey v. Tomlin . . -I Casley v. Smith . V. Smyth . . -j Cash V. Wells Cass V. Cass . . > < Cassen v. Bond . Cassidy v. Stewart, M.P. V. Stuart . . .i Castledine v. Munday Catterall ?;. Kenyon and Wife Ceal V. Cockburn . . < Cecily v. Bennison . Cetti V. Bartlett . Chadwick v. Banning . -l Chalk V. Walton Chalkley v. Carter . . < Chalon v. Anderson Charaberlayne v. Green . Chambers v. Bryant . V. Smith . . -! Champion v. Griffiths . Chandler v. Bezward Channing v. Cross Chapman v. Becke . P. O. w. Bowlby . V. Davis V. Davis V. Eley . V. Giles V. Hicks 1\ Kins: . . Reporters. 5 Mee. & W. 545 8 Dowl. 861 . 3 N. & M. 203 . 5Q. B. 747 3 Railway Cases, G92 8 Scott, 337; 8 Dowl 3 B. & B. 168 . 4 Dowl. 297 6C. &P. 64 . 1 M. & R. 281 . 1 Dowl, 489 . 7 Mee. & W. 189 10 Law J., Ex. 87 4 Dowl. 477 4 Dowl. 477 IT. &G. 219 . 1 B. & Ad. 375 13 Law J., Q.B. 52 1 Dowl. & L. 698 2Y. &J. 531 . 10 Law J., C. P. 57 4 Scott, N. S. 187 2M. & G. 437 4 B. & Ad. 90 11 Law J., Q. B. 260 7 Scott, N. R. 413 6 M. & G. 724 . 2 Law J., Ex. 3 9 Mee. & W. 840 5 B. &C. 534 . 8 D. &R. 155 . 1 Dowl. & L. 39 4 Dowl. 480 1 T. & G. 210 . 3 Tyrw. 237 9 Mee. &W. 790 12 Law J., Q. B. 139 12 Mee. & W. 2 13 Law J., Ex. 25 1 Dowl, N. S. 319 2 Mee. & W. 205 6 Law J., Ex. 66 9 Dowl, 118 3 Dowl. & L. 350 9 Jur. 1012 . 10 Law J., Ex. 299 8 Mee. & W. 249 8 Dowl. 831 11 Law J., C.P. 51 11 Law J., C.P. 320 1 Dowl. cSi L. 389 2 C. & M. 633 3 Law J., Ex. 219 16 Law J., Ex. 15 This Digest. Page. 29 ' i- Attorney . Award j- Notice of action Interpleader . Pleading Declaration Nisi Prius . Nisi Prius Rules . > Pauper . Affidavit I Affidavit Judgment . I Affidavit Affidavit Outlawry j Sheriff Writ of error . New trial . I Affidavit Declaration Costs 1 Inferior courts Warrant of attorney 291 I Appearance . 21 Interpleader . 136 Writ . . .317 Affidavit . 4 I Distringas . . 104 New trial . 181 1 Writ of trial . 326 Distringas . 100 I Writ . . .300 I Writ , . 317 Pleading . . 226 Attachment . 36 New trial . . 177 Pleading . 2'lO I Pleading , . 244 Declaration . 90 44 55 200 141 232 87 187 187 256 223 7 8 154 12 6 211 262 123 185 77 129 TABLE OF CASES. Cases. Chapman v. Rawson & others — - V. Sutton . Reporters. This Digest. Page. Charge v. Farhall Charlton i\ Burfitt . Charlesworth v. Ellis . V. Rudyard Charrington v. Laing . Checci and Wife v. Powell Cheese v. Scales. Cheetham v. Sturtevant Cheslyn v. Pearce . Chell V. Oldfield Cheltenham and Great West ern Railways. Fry Chick V. Smith . Child V. Marsh Children v. Mannering Chilton V. Ellis Chipp V. Harris Choles P. Hilton Chownes v. Brown V. Brown Christie v. Richardson and another v. Bell and another . Chuck V. Harris Clapperton and Wife v. Mon teith Clare v. Fiestal Claridge v. Smith V. Collins V. M'Kenzie Clark and others v and others . V. Chetwode , adn.inistratrix, v. Dann V. Goldsmid ». Lord , V. Martin V. Nicholson V. Smith Clarke, Thomas, in re V. Jones . Classey v. Drayton V. Drayton . J 3 Dov 'tis La {: Bulmer \ , 15 Law J., Q. B. 225 wl. & L. 646 Law J., C. P. 166 4B. &C. 865 6 D. & R. 422 . 1 M, & Sc. 450 . 10 Jur. 92 [ 1 C. M. & R. 498 L4 Tyrw. 124 . r 6 Bing. 242 1 3 M. & P. 587 6 B. & C. 253 . 12 Law J., Ex. 13 1 Dowl. & L. 631 f 1 Mee. & W. 56 L5 Law J. Ex. 106 4 Dowl. 629 . I? Dowl. 616 8 Dowl. 337 . J-i Mee. & W. 433 [6 Dowl. 576 . 8 Dowl. 120 2 Dowl. 338 , r 5 Mee. & W. 430 1 9 Law J., Ex. G4 11 Law J., Ex, 332 [2 Dowl. & L. 706 1 14 Law J., Ex. 219 2 Dowl. & L. 706 10 Mee. & W. 688 JMS.Exch. E. T. 1847 2 Scott, N. S. 82 |l Dowl. & L. 908 . 2DowL617 4 Dowl. 583 . 7 Dowl. 698. J 2 Dowl. N. S. 898 . 12 Law J., C. P. 131 Dowl. & L. 367 . 4 Dowl. 635 3 Dowl. & L. 513 . 6 Sc. 894; 7 Dowl. 151 3 Law J., Ex. 20 3 Dowl. 222 . 6C. &P. 712 . 1 Dowl. & L. 960 11 Price, 730 3 Dowl. 277 . 6 Mee. & W. 17 8 Dowl. 184 6 Mee. & W. 17 Nisi Prius 194 18 {-Amendment j Orders . . 210 Jury . . 172 Warrant of attorney 292 )■ Notice of action 198 ' Cognovit Abatement of suit Distringas Nisi Prius . 71 1 99 180 - Notice of trial 203 Warrant of attorney 239 >Writ . Writ .Writ . Pleading Attachment 321 315 308 228 34 > Warrant of attorney 285 } Attachment . 37 Arbitration . 23 Judgment . . 152 Certificate . . 67 I- Writ . . 304 Jury . . 171 >■ Prisoner . 249 New Trial . 179 Certificate . 66 Interpleader . 138 ► Irregularity . 142 Declaration . 90 Interpleader . 141 Stay proceedings . 269 Judgment, nonsuit 157 Rules . . 259 Affidavit . 8 Amendment . 17 Judgment . 148 Recognizance . 252 Cognovit . 71 Affidavit . . 6 'Judgment . 154 TABLE OF CASES. XXI Cases. Cleasby v. Poole Clements v. George V. Fuller V. Williams Clementson v. Newcomb CliflFe V. Prosser V. Prosser . Clothier v. Ess Clowes V. Brettell Clutterbuck u. Hulls V. Wiseman Coates V. Hawarden Coates V. Stevens Cobbett, in re V. Oldfield and others Cobboid and another ». Adams V. Chilver . Cock V. Gent and others V. Gent and others Cocker v. Tempest . Cocks V. Brewer Codriugton v. Curlewis Cole V. Beardy . V. Davis V. Gane ' V. Perry Collier v. Clerk . Collins V. Aaron V. Aaron V. Beaumont V. Beaumont V. G Wynne Coliis T. Groom Colls V. Coates Colley V Selby Colston V. Berens V. Berens . V. Hiscnlbs Commelin v. Thompson Constable v. Johnstone Cook V. Allen Reporters. r 1 C. M. & R. 521 \4 Law J., Ex. 2 11 Moore, 510 . 11 Jur. 242 . 2 Scett, 814 1 C. M. & R. 77 2 Dowl. 21 2Dowl.21 j2 Dowl. 731 . \3M. &Sc. 21(; . 12 Law J., Ex. 8 J 15 Law J., Q. B. 310 t 10 Jur. 1082 J 1 Law J., Ex. 81 [2 C. & J. 213 . /7B. &C. 388 . tl M. & R. 110 j3 Dowl. 784 [2 C. M. & R. 118 14 Mee & W. 175 3 Dowl. cSc L. 79 KJLaw J., Ex. 150 10 Jur. 72 11 Law J., C.P. 173 ri5 Law J., Ex. 33 1 13 Mee. & W. 364 I Dowl. & L. 413 7 Mee. & W. 502 II Mee. & W. 51 9 Dowl. 968 5 Dowl. 161 . MS. Exch. T.T. 1844 15 Law J., Q. B. 22 1 T. & G. 1000 5 Q. B.467; 9 Jur. 1 G Dowl. 423 5 Scott, 595 . 2 P. & D. 363 2 P. & D. 363 2 M. & So. 775 JSM.&G. 850 I 4 Scott, N. R. 574 J3 P. &D. 511 . \11 Ad. & E. 826 11 Jur. 332 . 3 Dowl. 253 J 4 Law J., Ex. 54 I I C. M. tk R. 833 1 M. &R. 301 J 1 C. & J. 461 . \ 2 Tyrw. 346 . [2 Law J., Ex. 25 L 1 C. & M. 88 J 1 C. & M. 542 . {2 Law J., Ex. 199 This Digest. Page. J- Judgment, nonsuit Certificate . Awards . Attachment Venue Taxation Taxation > Cognovit Execution . > Attorney I Writ . > Arrest 160 68 48 37 279 272 277 71 126 38 312 29 >■ Pleading 232 Writ . 322 Costs 79 Affidavit . 13 Warrant of attorney Writ 291 315 > Award Inferior court 51 130 Stay proceedings Nul tiel record . 265 205 Appearance Costs 23 73 New trial 177 Changing venue . 280 Costs 73 Nisi Prius . 190 Costs 76 Pleading 237 Prisoner . 250 Writ . 314 Bail 63 IWrit of trial 322 j Sheriff Judgment,nonsuit Writ . 264 169 301 jWrit Nisi Prius . 312 190 Y Demurrer 93 Writ } > Interpleader . 135 TABLE OF CASES. Cases. Reporters. J 10 Bing. 19 ts M. & Sc. ;?71 /7Ad. &E. 605 . •[7 LawJ., Q. B. 16 7 Dowl. 397 . 9 Jur. 227 G B. & C. 351 . [4 Mee. Si W. 69 "t 7 Law J., Ex.219 16 Law J., Ex. 151 , 5 Mee. & W. 161 2 C. & P. 267 , 12 Price, 149 8 C. & P. 748 . 1 Dowl. & L. 969 f 9 Bing. 634 [2 M. & Sc. 810 7 Scott, 345 / 1 C. M. & R. 437 ts Dowl. 167 4 Dowl. 281 . J 4 Mee. & W. 73 . I 7 Law J., Ex. 240 9 Mee. & W. 290 4 Dowl. 51 3 Ad. & E. 668 . ri C. M.& R. 575 13DowL16f; . 4 Taunt. 402 J 2 Dowl. & L. 74 . [8 Scott, N. S. 172 8 Dowl. 501 , 6 Dowl. 794 . 8 Ad. & E. 673 . , 6 Dowl. 181 ; 3 Sc. J 2 Dowl. &L. 619 t 7 Man. & G. 1013 3 Dowl. 18; 3Tyrw Jo Law J., C. P. 89 [2 Scott, 436 . 2 Dowl. 134 2 Dowl. 443 . r 2 Dowl. 728 1 3 M. & Sc. 180 J 10 Mee. & W. 328 t 2 Dowl. N, S. 310 f 1 Law J., Ex. 149 [2 C. & J. 474 . r 2 C. M. & R. 547 I 5 Tyrw. 535 J 5 LawJ., Ex. 49 [ 2 C. M. & R. 547 J 7 Man. & G. 1013 12 Dowl. & L. 619 4 Dowl. 591 Cook V. Clark V. Cooper t\ Hunt V. Peace ?'. Leonard V. Vaughan Cooke V. Blake V. Hunt Cooper r. Amos V. Archer . r. Egginton V. Garbett V. Lead Smelting Com- pany .... V. Talbot . V. Waller V. Wheale . V. Whitmarsh Cooze V. Neumegen Copeland v. Neville V. Neville . Copello V. Brown Copley V. Day and another w. Medeiros Coppice V. Hunter . Corbett v. Brown V. Swinborne Corbyn v. Heyworth . Covington v. Hogarth Cornish v. King Corry v. Wharton . Cortessos v. Hume Cosgrave v. Evans . Cotter ». Bank of England . Cotton V. Sawyer Coulson V. King Cousens v. Paddon V. Paddon . Covington v. Hogarth Cowper V. Jones This Digest. Page. - Notice of action 198 Writ 311 335 75 Taxation . 273 Motion . .174 Notice of action 198 |-Writ . . .314 Demurrer . 95 Costs . . 81 Particulars demand 216 Affidavit . , 6 Nisi Prius . . 189 Pleading . 241 ■Interpleader . 138 Affidavit , 6 -Writ . . .300 Writ . 302-310 •Notice of trial . 203 Writ, trial . 324 Distringas . . 103 Appearance . 22 Writ . . . 299 Abatement of suit 1 Writ . . 314 Writ . , .298 Sheriff . . 261 Pleading . . 234 Judgment, nonsuit 158 Staying proceedings 268 Distringas . 104 Affidavit . . 8 Non pros. Witness . > Interpleader > Writ -Writ . Pleading Verdict 196 295 134 297 308 234 281 -Staying proceedings 268 Pleading . . 239 TABLE OF CASES. XXIU Cases. Cox V, Balne . — V. Painter . V. Salmon V. Thomason V. TuUock Coxhead v. Huish Coy V. Forrester, Lord Cranch v. Tregoning . Cramer v. Churt Critchley, George, ex parte Croft V. Percival, Lord Crofts V. Brown Cromer v. Brown . Cromer and another v. Churt Crook V. Stephens . Crosbie v. Holmes Cross V. Robertson . V. Wilkins . Crow V. Crow ?'. Field Crowder v. Bell Crowley v. Page Crowther v. Brandon V. Duke V. Elwell Crucknell v. Trueman and J another , . . . [ Crutchiey v. London and 1 Birmingham Railway . J Culshaw V. Meltzer and"! others . . . .J Culverson v. Milton Culverwell v. Nugee . Cundell U.Harrison andothers Curlewis v. Bird V. Pocock . Curling and others v. Ro-f bertson . . . [ Curry v. Arnott . Curtis V. Tabram Curwin v. Moseley Cutts ?'. Surridge V. Surridnje and others Reporters. 2 Dowl. & L. 718 IN. & P. 581 6 Ad. & E. 491 2 Mee. & W. 127 2 C. & J. 498 . 2 Law J., Ex. 233 1 C. cSc M. 531 . / C. & P. 63 8 Mee. & W. 312 10 Law J., Ex. 262 5 Dowl. 230 . 10 Jur. C71 15 Mee. &W. 310 15 Law J., Q. B. 124 7 Scott, 847 2 Dowl. & L. 935 4 Dowl. 288 15 Law J., Ex. 263 5 Bing. N. S. 688 7 Scott, 848 . 10 Jur. 139 15 Law J., Q. B. 125 8 Scott, N. S. 346 4 Dowl. 279 13 Law J., Q. B. 57 1 Dowl. & L. 709 8 Dowl. 231 . 2 Dowl. 508 7 C. & P. 789 . 7 Scott, 344 8 Law J., C. P. 225 7 Dowl. 409 . 7 Scott, 344 4 Mee. &W. 71 7 Law J., Ex. 251 12 Law J., Ex.31 9 Mee. & W. 084 2 Dowl. & L. 102 V Pleading Orders This Digest. Page. Sheriff . . 262 Amendment . 18 Attachment . 34 Ejectment . . 122 Irregularity . 142 NisiPrius . .192 . 231 210 [-Judgment . . 147 Warrant of attorney 287 Outlawry . 214 Distringas . .101 Judgment, nonsuit 156 Arbitration . 28 > Plea in abatement 247 1- Award , . 53 Judgment, nonsuit 163 Distringas . 100 I Writ . . .304 Writ . . 309 Inferior courts . 129 Nisi Prius . 188 y Judgment, nonsuit 162 1- Judgment, nonsuit 153 I Taxation . .274 V Demurrer . 96 Pleading . .241 MS. Exch. H.T. 1847 2 M. & R. 200 . 15 Law J., Ex. 308 16 Law J., Q. B. 81 1 Dowl. N. R. 752 5 Dowl. 381 2 Dowl. & L. 307 5 Bing. N. S. 224 7 Dowl. 249 . 4 Dowl. 000 1 Har. & W. 645 I Dowl. 432 16 Law J., Q. B. 2 II Jur. 585 . Judgment, nonsuit 162 Writ . , 308 Writ . . .303 Venue . . 280 Sheriff . . 264 Interpleader . 136 1 Taxation . .277 I Pleading . . 22<. i- Judgment, nonsuit 156 Writ . . 299 Attorney . . 39 Demurrer . 96 TABLE OF CASES. Cases. Dakins ». Wagner . Dale ?'. Gordon . V. Heald Da)rymple v. Fraser and anr. Dalton and anr. v, Mclntyre 1^. Tucker . Dalzell V. Cullen Danes v. Sherlock Daniells v. Gompertz Daniels v. May . Davidson v. Chilman Davies v. Cooper V. Edmonds V. Evans V, Griflfiths V. Harding V. Jenner V. Lloyd V. Lloyd V. Parker . ?\ Parker V. Stanley . V. Thomson V. Waters . Davis V. Chapman . V. Cole V. Cooper V. Curling . V. Dunn • ?'. Jones . V. Jones . V. Sherlock Reporters. 3 Dowl. 535 3 M. cSi So. 339 1 Car. &K. 314 15 Law J., Q. B. 193 10 Law J., Ex. 342 5 Dowl. 550 '12 Mee. &W. 1 1 Dowl. & L. 448 ^ 7 Dowl. 592 , 3Q. B. 322 [5 Dowl. 83 [ 1 T. & G. 934 . ri Bing. N. S. 297 [1 Scott, 177 4 Doug. 5 r 12 Mee. & W. 31 1 1 Dowl. & L. 395 6C. &P. G19 [4 Mee. & W. 377 L 7 Dowl. 204 [10 Bing. 552 . [4M. &Sc. 450 . f 2 Scott, N. R. 202 [9 Dowl. 45 r 1 Tyrw. & G. 28 [ 4 Dowl. 478 fSMee. & W. 69 [6 Dowl. 173 16 Law J., C. P. 86 2 Dowl. 537 8 Dowl. 433 . f 14 Mee. &W. 161 L 3 Dowl. & L. 49 [ 9 Mee. & W. (i08 [1 Dowl. N. S. 651 [6 Ad. & E. 767 . 16 Law J., K.B. 142 J' 6 Mee. & W. 624 [8 Dowl. 732 . 2 Dowl. 135 ri5 Law J., Q. B. 56 [lOJur. 69 f 1 Dowl. N. S. 31 \GJur. 263 fl CM. &R. 582 1 5 Tyrw. 182 . f4 Scott, 202 15 Dowl. 503 . 7 Dowl. 530 This Digest. Page. Pleading 243 Declaration 90 Nisi Prius . ISG Warrant of attorney 290 Demurrer 95 Attachment 31 Prisoner 249 Attachment 31 Sheriff . 260 Affidavit 3 -Plea in abatement 247 Non pros. . 195 ■Sheriff . . 263 Nisi Prius . 187 ■Sheriff . . 2G3 I Writ 1- Rules jWrit of trial I Writ Rules Writ . Pleading . t Pleadinir 311 255 323 300 258 302 238 246 42 Particulars demand 220 I Attorney V Certificate Appearance [■ Notice of action i- Nul tiel record V Declaration V Judgment . Irregularity 65 24 199 204 91 155 124 TABLE OF CASES. XXV Cases. Davis V. Sherlock . V. Stanbury V. Stanbury ■ V. Trevanion V. Trevanion . Davy V. Brown . Davey v. Warne Daw V. Hole Dawes v. Anstruther. Dawson v. Parry V. Wills V. Willes Day V. Davies V. Day . V. Holly V. Tuckett V. Waldock Deacon v. Fuller De Bedolliere v. Ryan V. Ryan De Gondouin v. Lewis Dempster and another v. Purnell . . . . Dendy v. Powell Dennehay v. Richardson V. Richardson Dennett v. Hardy V. Pass Denton w.Maitlandand others V. Williams De Rossi v, Polhill De Rutzen v. Lloyd V. John . Devereaux v. Johns Dew V. Katz Dewar v. Purday Dicas, ex parte . V. Warne Dickenson v. Allsopp . V. Eyre . Dickson v. Baker Reporters. 7 Dowl. 530 . 3 Dowl. 440 3 Dowl. 440 . 2 Dowl. & L. 743 14 Law J., Q. B. 138 / 1 Bing. N. S. 460 \ 1 Scott, 384 J 14 Mee. & W. 199 [15 Law J., Ex. 25:5 15 Law J., Q. B. 32 J 2 Mee. & W. 817 \g Law J., Ex. 194 6 Scott, 890 , 6 Jur. 1068 6 Jur. 1068 5 C. & P. 340 J 1 Mee. & W. 39 14 Dowl. 740 . 2 Dowl. N. S. 974 1 B. C. Rep. 203 1 Dowl. 523 J 2 Law J. Ex. 175 tic. &M. 349 . 7 Dowl. fil5 . 7 Dowl. 615 J 10 Ad. cSc E. 117 to Law J.,Q. B. 148 111 Law J., C. P. 33 J 3 Mee. & W. 442 t 7 Law J., Ex. 154 4 Dowl. 13 4 Dowl. 5 04 [2 Dowl. Sc L. 484 1 9 Jur. 135 3 Dowl. 632 . 1 Bing. N. S. 638 15 Law J., Q. B. 332 8 Dowl. 123 7 Scott, 8:;6 . r 5 Ad. & E. 463 t2 N. &P. 213 5 Dowl. 400 1 Dowl. 548 8C. & P. 315 , r3 Ad. & E. 166 t4Law J., K. B. 104 2 Dowl. 92. 1 Scott, 584 f 13 Mee. cSc W. 722 t 2 Dowl. & L. 657 7 Dowl. 721 . J 1 Ad, & E. 853 . 1 3 Law J., K. B. 207 This Digest. Page. Writ . . 307 Affidavit . 11 Warrant of attorney 289 Warrant of attorney 284 Outlawry . .212 j Costs . . 77 }- Notice of action . 199 Certificate . 86 |- Particulars demand 217 Demurrer . 95 Affidavit . . 13 Writ . . 309 Particulars demand 218 > Judgment, nonsuit 105 Irregularity . 143 f Inspection of docu- t ments . . 133 Interpleader . 135 '(-Term's notice . 278 Bail . . 62 Judgment, nonsuit 158 |- Prochein amy . 251 Inferior court 131 235 - Pleading Judgment . . 158 Judgment, nonsuit 169 - Writ trial . 323 Attachment 34 Staying proceedings 267 Costs . . 75 Costs . . 76 ■ New trial 182 Judgment, nonsuit 169 Interpleader . . 13G Declaration . 91 -Nonsuit Affidavit Costs >■ Award Interpleader ■ Outlawry . 197 16 78 54 139 212 TABLE OF CASES. Cases. Digby V. Stirling Dignam v. Ibbotson - V. Mostyn . Pimond v. Vallance Dixon t\ Oliphant V. Sleddon r. Thorold V. Willis V. Yates Dobson V. Groves . Doble V. Cummins . Docteri'. Stanley Dodd V. Drummond Doddington, in re V. Bailward Doe p. Armfield V. Amey V. Bath V. Byron V. Carter . V. Edwards V. Errington V. Grant r. Jordan . V. Murrell V. Owen V. Roe V. Roe ». Roe V. Roe V. Roe V. Roe V. Roe V. Roe . V. Smith V. Stephens V. Wells Doe d. Agar v. Roe Allanson v. Canfield Ashman v. Roe Avery v. Roe Bacon and another Brydges Baring v. Roe Barks v. Roe Reporters. 8 Bing. 55 3 Mee. ^ W. 431 f 7 Law J., Ex. 13G 1^ () Dowl. 547 7 Dowl. 590 [15 Mee. & W. 152 [15 Law J., Ex. 106 f 15 Mee. & W. 427 [15 Law J., Ex.284 [ 10 Law J., Ex. 303 [8 Mee. & W. 297 6 Law J., Ex. 144 f5B. &Ad. 313 . [2 Law J., K. B. 198 6Q. B. 637 . r7Ad. &E. 580 , [ 7 Law J., Q. B. 12 9 Law J., C. P. 199 1 Dowl. 381 . [8 Law J., C. P. 331 [5 Bing. N. C. 591 7 Dowl. 740 11 LawJ., Q. B. 43 10 LawJ., Ex.466 2 N. &M. 440 '3 Dowl. & L. 31 . 1 M. G. & S. 623 8 Bing. 330 1 P. &D. 408 . 3N. &M. 646 . 6 N. & M. 70 . 4 Scott, 370 8 C. & P. 134 . 5 Law J., Ex. 158 1 Dowl. 427 1 Dowl. 428 . 2 Dowl. 414 2 Dowl. 413 . 8 Jur. 360 . 2 P. cSc J. 670 . 2 P. & J. 45 2 Dowl. 180 . 3 N. & P. 335 ' 2 Dowl. cSc L. 993 10 Jur. 570 2 P. & D.396 6 Dowl. 624 6 Dowl. 523 ' 1 Bing. N. C. 253 1 Scott, 166 6 Dowl. 518 . . 1 DowL & L. 954 6 Dowl. 456 5 Dowl. 447 This Digest. Page» Arrest Notice of trial • Notice of trial Witness ■ Attachment 29' 201 201 294 32 Staying proceedings 266 ^Writ Attachment Y Interpleader Award I Interpleader Writ trial Rules [■ Award Award . Ejectment Award Ejectment [■ Ejectment , Costs Inferior courts Amendment Inferior courts Ejectment Ejectment . Costs Ejectment . Ejectment Ejectment Ejectment . Ejectment Ejectment . Ejectment Ejectment . Rules t Special case Ejectment Ejectment . Attachment > Ejectment . Attorney Ejectment . Ejectment Affidavit 318 32 140 57 13& 329 253 52 52 120 54 115 118 78 132 17 132 119 118 80 107 108 108 112 116 116 118 119 259 270 115 109 34 114 46 117 107 8 TABLE OF CASES. Cases. Reporters. This Digest. Page. Doe d. Barron v. Purchas . 5 Law J., K. B. 148 Bather v. Brayne and \ MS. Salop spring as- J sizes, 3 847 1 Dowl. & L. 345 . 1 14 Law J., Q. B. 246 J 6 Dowl. 478 1 1 W. W. & H. 207 J2Ad. &E. 329 . \4N. &M. 42 . J 3 Mee. & W. 187 1 6 Dowl. 388 . 15 Law J., Q.B. 317 7 Dowl. 463 13 Mee. & W. 241 2 Dowl. & L. 667 1 Y. & J. 492 J 2 CM. &R. 281 \4 Law J. Ex. 321 [11 Ad. & E. 842 . \4 P. & D. 278 . 12 Law J., Q. B. 69 8 Dowl. 858 . 10 Jur. 952 J 13 Mee. & W. 688 I 2 Dowl. & L. 644 7 Dowl. 326 . fll Jur. 45 . 1 16 Law J., C. P. 86 4 Dowl. 273 9 Dowl. 100 . 9 Dowl. 67 . 3 N. & P. 701 . 6 Dowl. 305 6 Dowl. 291 . 1 Dowl. 692 6 Dowl. 765 7 Dowl. 555 J 4 Mee. & W. 68 I 7 Dowl. 53 . J 4 Mee. & W. 68 \ 8 Law. J., Ex. 69 15 Law J., Ex. 341 , 2 Dowl. N. S. 1 . 7 Dowl. 494 . . 9 B. & C. 760. . ri5 Law J., Q. B. 266 110 Jur. 637. J 9 Law J., Q. B., 324 •\4P. &D. 141 . — Dinorben, Lord, v. Roe 2 Mee. & W. 374 . — Dudgeon and others ». ^ Dowl. & L. 678 Martin and others . J — Eaton V. Roe . . 7 Scott, 124 . — Edwards v. Gunning 7 Ad. & E. 253 . another Beaumont v. Roe Bedford Charity Trus- tees V. Payne ■ Berger v. Docker Blair v. Street . Bloxam v. Roe Body V. Cox Boullott V. Roe Bowman v. Lewis Boys V. Carter Bishton v. Hughes Blight V. Pitt . Britton v. Clark Bromley v. Roe Burgess v. Roe . Burnham v. Lever Burroughs v. Roe Burton v. Roe Butt V. Kelly Chatfey v. Roe Channell v. Roe Clark V. Stillwell V. Stillwell Clothier v. Roe Cockburn v. Roe Colson V. Roe . Cope V. Johnson Cousins V. Roe V. Roe Cundey v. Sharpley Dalby v. Hitchcock Daniel v. Woodroffe Dangerfield v. Allsop Darke v. Bowditch . Davies v. Davies Judgment -Nisi Prius Ejectment |- Ejectment 146 194 114 118 ■>- Judgment, nonsuit 161 ' I Ejectment ' ^Ejectment Award . Ejectment . > Ejectment . Ejectment . ■ > Ejectment . ' ^Ejectment . Affidavit Ejectment . Ejectment . J- Ejectment Ejectment . [•Ejectment . Attachment Ejectment Ejectment . Affidavit . Affidavit Ejectment . Ejectment . Ejectment . Attachment r Ejectment [ Affidavit . Ejectment . Ejectment . Ejectment • Costs f Ejectment J Admission of • 1 ments Ejectment . New trial . Ejectment . Ejectment . 107 114 57 108 121 115 122 115 5 112 112 119 110 113 37 109 114 4 8 107 109 106 33 107 118 107 106 78 117 docu- 2 111 180 109 115 TABLE OF CASES, Cases. Doe d. Edwards v. Leach . Egremont, Earl, v. Ste- phens . . . . V. Stephens Ellis V. Owens . Emerson v. Roe Emery r. Koe Errington v. Errington ■ Evans v. Roe . Reporters. 10 Law J., C. P. 289 1 2Dowl. &.L. 993 JlOJur. 570 . flOJur. 570. 114 Law J., Q. B. 258 12 Law J., Ex. 53 6 Dowl. 73G . 7 Scott, 7G9 4 Dowl. G02 . 5 Dowl. 508 . This Digest. Page. Farncombe and others] ,„ t rr,- 3„„ MOJur. 523 r. Roe Finch I'. Roe Fish V. M'Donnell . Fisher v. Roe V. Saunders Fleming v. Somerton Fowler v. Roe . V. Roe Eraser v. Roe . Frith V. Roe V. Roe . Frost V. Roe V. Roe . Fry V. Roe Gaskell v. Roe Geldart v. Tabrum George v. Roe V. Roe Gibson v. Roe Giles V. Wynne . Gillett V. Roe . Goodwin v. Roe . ■ Gore V. Roe . ■ Gower v. Roe Gowland v. Roe V, Roe Greaves v. Raby Greene i\ Roe Grey-coat Hospital v. Roe . Grimes v. Roe , Grove v. Roe . Gyde v. Roe Harcourt v. Roe Ilardman v. Pilkington Harvey v. Francis V. Francis Henson v. Roe . i {: 5 Dowl. 225 . 8 Dowl. 501 4 Jur. 578 10 Mee. tk W. 21 JS B. & Ad. 783 . 1 1 Law J., K. B. 273 . 14 Law J., Q. B. 210 11 Jur. 184 , 11 Jur. 309 5 Dowl. 720 . , 3 Dowl. 569 2 Dowl. 431 . 8 Dowl. 301 3 Dowl. 563 . 3 M. & Sc. 371 . 3 Tyrw. 84 J 6 Law J., C. P. 303 [5 Scott, 141 . 3 Dowl. 541 3 Dowl. 9 4 Scott, 434 1 Chil. 310 1 C. M. & R. 4 Tyrw. 049 3 Dowl. 323 3 Dowl. 5 C Scott, N. R 5 Dowl. 273 . 6 Dowl. 35 . 2 B. & Ad. 948 8 Scott, 385 I? Man. & G. 537 4 Dowl. 591 8 Jur. 338 [15 Law J., E.X, 8 [14 Mee. & W. 78! 4 Taunt. 883 4 Burr. 2447 . [4 Mee. & W. 331 \ 7 Dowl. 523 4 Mee. & W. 331 1 Dowl. & L. 657 19 41 Ejectment I Verdict ^Abatement of suit Pauper . Ejectment . Ejectment Ejectment . Ejectment Ejectment . Ejectment I Affidavit . Ejectment . Award Notice to produce Ejectment . Ejectment Ejectment . Ejectment Ejectment . Ejectment Ejectment . Ejectment . Ejectment L Ejectment . Ejectment Ejectment . Ejectment Judgment nonsuit I Ejectment Ejectment . Ejectment Ejectment . Ejectment Ejectment . Ejectment Ejectment . L Ejectment Ejectment , Ejectment !- Ejectment . Rules Ejectment . !- Ejectment Taxation Ejectment . 117 283 223 110 118 122 116 110 107 15 112 46 204 107 109 lOG 108 112 109 IIG 114 107 120 108 109 114 163 113 114 116 111 117 118 120 116 108 109 108 113 115 118 271 119 TABLE OF CASES. XSIX Cases. Doe d. Hickman v. Hickman Hill V. Tollett . Hine v. Roe • Holden v. Rushworth . Hughes V. Derry and 1 g ^^^ ^ p Reporters. This Digest. Page. 8 Dowl. 833. 1 Dowl. & L. 5 Scott, 174 J 4 Mee. & W. \6 Dowl. 712 121 another Humphreys v. Owen ■ Hunter v. Roe Hutchinson i\ Roe . Jackson r. Roe . Jacques v. Roe Jenkins v. Roe . Jenks V. Roe . Johnson v. Roe . Jones V. Roe . V. Roe Jordan v. Roe V. Templeton King V. Roe . Kingston v. Kingston , Knowle v. Roe Langdon v. Langdon , Laurie v. Dyeball . Lewis V. Baster . Lewthwaite v. Roe . Lindsey v. Edwards Llandesillo, overseers of, V. Roe Lloyd V. Roe and Jones v. Roe Lowndes v. Roe Ludford v. Roe LufiF V. Roe Manton v. Austin . Marriott v. Edwards Marshall v: Roe . Martin r. Martin . Maslin v. Packer . Mather v. Roe Messer v. Roe . Middleton v. Roe . 494 r IT. &G. 944 . 5 Dowl. 553 2 Dowl. 418 . 4 Dowl. 609 8 Scott, 32 5 Dowl. P. C. 155 2 Dowl. 55 3 Tvrw. 602 . 12 Law J., Q. B. 96 5 Dowl. 226 . 1 Dowl. 518 . 4 Dowl. 577 J 1 Dow. & L. 194 •\ 12 Law J., Q. B. 33 1 B. C. Rep. 39 11 Law J., Q. B. 73 2 Mee. & W. 569 wl. & L. 590 & Ad. 864 . & M. 849 8 B. & C. 70 2 M. & R. 184 5 Ad. & E. 129 . J 12 M( 11 Dov / 5 B. & ' t 2 N. & 1 B. C. Rep. 20 2 Dowl. 471 |4 Dowl. 222 . [2 Dowl. N. S. 407 t7Jur. 352 J 15 Law J., Ex. 283 [15 Mee. cSc W. 431 7 Mee. & W. 439 Law J., Ex. 142 8 Dowl. 500 . . 3 Dowl. 575 r2 M. & Sc. 107 i9Bing. 41 . r 6 Carr. Sc P. 208 tl M. & R. 319 4 N. & M. 553 1 M. & R. 242 , r2 C. cSc M. 457 [4 Tyrw. 144 . . 5 Dowl. 552 5 Dowl. 716 . . 1 Dowl. & L. 149 ■{I Attachment Rules Ejectment -Ejectment . Certificate I Costs . Ejectment Ejectment . Ejectment Ejectment . Ejectment I Ejectment . Ejectment Ejectment . Ejectment . Ejectment I Judgment nonsuit Ejectment 33 256 110 113 66 80 106 107 106 114 107 108 111 106 107 107 165 112 Warrant of attorney 285 I Ejectment . I Ejectment > Ejectment . Verdict . Ejectment . Pauper . Declaration 116 122 114 282 113 224 90 I Ejectment . 121 ^Ejectment . > Ejectment . . . Ejectment Ejectment . i- Ejectment > Ejectment Ejectment Notice to produce |- Ejectment . Ejectment Ejectment . Ejectment 53 119 105 116 109 113 115 108 204 123 110 116 111 TABLE OF CASES. Cases. Doe d. IMontgomery andano- \ , j~, ther V. Roe . ' ^ ^ Morgan v. Roe V. Roe - Morpeth v. Roe Mudd V. Roe ■ Mullarky v. Roe • Musselwhite v. Roe ■ Nash V. Roe . • Norman v. Roe • Norris v. Roe • Nottage V. Roe . - Oldham v. Roe - Ovary v. Roe - Parker v. liilliard . - Parr v. Roe - Parsons i\ Heather - Fattison v. Roe . - Philipps V. Roe V. Rollins . - Piggott V. Roe - Poole V, Errington V. Errington - Pope V. Roe Reporters. owl. & L. 695 This Digest. Page. r 4 Sc Portland, Duke, v. Tioe-i , ^^ Postlewhaite v. Neale — Prescott V. Roe . — Protheroe v. Roe — Pryme v. Roe — Pugh V. Price — Rabbitts and others v. Welsh . — Read v. Roe — Reynolds v. Roe Ringer v. Blors . Roberts v. Parry J Jl 1 (i Jur. 325 . . j 2 Mee. & W. 423 [5 Dowl. C05 . . 3 Dowl. 577 . . 8 Dowl. 444 . . rilA. &E. 333 . [SP. &D. 316 . 8 Scott, 471 . . 8 Dowl. 305 . . 2 Dowl. 428 . . 1 Dowl. 547 . . r4M. &G. 28. . [4 Scott, N. R. 700 4 Dowl. 714 . . 1 Dowl. Ik L. 803 , 5 Car. & P. 132 . 10 Law J., Q. B. 31 10 Law J., Ex. 296 10 Jur., Q. B. 34 . Scott, 891 . . Dowl. 915 .. . 15 Law J., C. P. 186 [15 Law J., Q. B. 311 1 1 B. C. Rep. 200 1 Ad. & E. 750 . 3 N. & M. 646 . 3N. &M. 646 . 7 Man. & G. 602 Scott, N. R. 22 owl. N. S. 183 2 Mee. & W. 732 r9Bing. 104 . . 1 1 Dowl. 274 . . 4 Dowl. 385 . . 8 Dowl. 340 11 Jur., 170 . . ("7 Sc L1D( { { Parry J 13 M< [2 Dov 633 711 10 Jur., 1056 1 Mee. & W, 1 M. G. & S. 8 Dowl. 18 Mee. & W. 35(; & L.430 14 Law J., Ex. 20 Roe Roe — — Roberts and others v.\ 2 Dowl. & L. 673 /14 Law J.,E.-c. 101 7 Dowl. 326 . . 6 Scott, N. R. 833 8 Jur. 1109 . . Car. & K. 558 . Jur. 1121 -and others v. - ?'. Roe - v. Roe Robinson v. Bousfield {I Affidavit ^Ejectment . J- Ejectment Ejectment . Ejectment L Ejectment . Ejectment Ejectment • Ejectment Ejectment . I Ejectment Ejectment . Ejectment Certificate . Ejectment Ejectment . Ejectment I Ejectment . Special case I Ejectment . I New trial Ejectment Ejectment Y Ejectment . Discontinuance l Costs Ejectment Affidavit . Pauper . Ejectment . Ejectment Ejectment 9 110 121 110 120 118 120 108 112 119 111 100 109 66 119 117 109 116 269 105 179 115 113 108 99 76 108 7 224 115 111 107 •} Judgment nonsuit 159 Writ Ejectment ■ l Ejectment , Ejectment Ejectment . Ejectment I Ejectment 321 121 121 110 107 114 121 TABLE OF CASES. Cases. Doe d. Robinson i-. Roe Rogers and others Bath Ross V. Roe . V. Roe Romford v. Miller Saunders v. Roe Schovell V Roe Shepherd v Simpson v. Roe Hall V. Roe Smith V. Hardy V. Smart Reporters. . 3 Dowl. 11 . . *'• j 2 N. & M, 440 . 7 Scott, 866 . . 5 Dowl. 14 7 . . . 1 Chit. 536 . . f 12 Mee. & W. 556 '11 Dowl. &L. 655 3 Dowl. 691 .. . . 10 Law J., Q. B. 129 1 Dowl. & L. 49 . 6 Dowl. 469 . 4 Dowl. 356 . . 1 M. &R. 476 This Digest. Page. r, -.1, T> r 4 Dowl. 3/4 . Smithers v. Roe . ■{ ^ o ^^ - on L / Scott, o20 . Snape v. Snape Stainton v. Roe Standish v. Roe Stanley v. Towgood • Steppins v. Ford Story V. Roe Street i\ Roe Strickland v. Roe ■ Summerville v. Roe Sykes v. Roe . Symes v. Roe Symons v. Rice Tabay v. Roe Tattersall r. Roe Taylor v. Crisp . Tew V. Ballingham Thorn and another Roe Thomas V. Roe Thompson v. Roe . V. Roe Treader v. Roe . Treat v. Roe . Tressidder v. Tressidder Trimmins v. Roe Tucker v. Roe . Vernon v. Roe . Vincent v. Roe Vorley v. Roe Walker v. Roe Warne v. Roe Warren v. Roe Warwick, Earl, v. Roe — — Watson V. Roe . — White V. Roe J2 C. cSi J. 214 12 Tyrw. 340 . . 6 M. & Sc. 203 . . r5 B. & Ad. 878 . • 1 2 N. & M. 468 . . 2 Dowl. 494 . . 2 Dowl. 419 .. . 5 Scott, N. R. 838 8 Dowl. 444 . . . . 1 B. C. Rep. 210 4 M.& Sc. 747 . . 7 Scott, 121 . . . 5 Dowl. 667 . . . 14 Law J., Q. B. 13 . 1 Dowl. & L. 118 8 Dowl. 612 . 7 Dowl. 584 15 Law J., Q. B. 22 ^'- 1 7 Scott, 172 1 IMo. & Sc. 435 r2 Scott, 181 . . •t4 Dowl. 115 3 Dowl. 575 . . . 1 Dowl. 261 . . 4 Dowl. 278 . . 1 Ad. ^ E., N. S. 6 Dowl. 965 . . 4 M. & Sc. 165 . . 2N. &P. 237 . 9 Dowl. 43 . . J 2 Dowl. 52 . . • [6 Jur. 931 . . . J 9 Mee. & W. 426 't 1 Dowl. N. S. 613 . 2 Dowl. 517 . . 6 Law J., C. P. 24 10 Law J., Ex.130 5 Dowl. 389 . . 8 Dowl. 71 suit 16 Ejectment . Ejectment Ejectment . Ejectment Ejectment . > Ejectment Ejectment . Ejectment Ejectment . Ejectment , Staying proceedin Nisi Prius Y Ejectment i- Ejectment Ejectment [•Ejectment Pleading . Judgment, non Ejectment . . Ejectment • Ejectment . Ejectment . Ejectment . Ejectment . Prisoner . Ejectment . Ejectment . Abatement of sui Attachment . Ejectment . Ejectment . l Ejectment Ejectment . Ejectment Ejectment Ejectment . Ejectment . Ejectment Ejectment . Ejectment I Ejectment . Ejectment Ejectment Ejectment Ejectment Ejectment Ejectment 110 114 106 112 115 114 112 111 117 113 s 266 192 115 119 119 122 232 160 108 115 106 118 109 116 250 112 113 1 35 107 110 118 120 111 110 121 109 110 120 116 116 120 116 117 113 117 112 xxxu TABLE OF CASES. Cases. Doe d. "William 4th, King, v Roe Williams v. Smith . Williamson v. Dawson V. Roe . V. Roe V. Roe Wingfield v. Roe Wilson V. Roe Wollaston v. Barnes Woodroffe v. Roe Worthay v. Roe Wyatt V. Byron . Yeomans v. Roe . Dore V. Hayden Dosset V. Gingell Dowbiggin v. Harrison Dowler v. CoUis Dowling V. Harman V. Harrison V. Powell . Downes v. Garbett . Downing v. Jennings Doyle V. Anderson . V. Douglas V. Stewart D'Oyley v. Roberts Dfage V. Bird Draine v. Russell Drake v. Lewin v. Pickford Dresser v. Clarke Drinker v. Pascoe Driver v. Harrison . Drury v. Davenport Duckett V. Satchell . Duckworth v. Fogg Dudden v. Triquet . Duerr v. Triebuer Dumsday v. Hughes Duncan v. Grant Dunk, ex parte Dunn V. Harding Reporters. ' 13 Law J„ Ex. 304 8 Jur. 476 ... 9 Dowl. 1011 4 Car. & P. 589 10 Moore, 493 . 3 Dowl. & L. 328 ri5 Law J., Q. B. 39 L 3 Dowl. & L. 328 1 Dowl. 693 4 Dowl. 124 . 1 M. & R. 386 . 5 Scott, N. R. 800 10 Jur. 984 3 Dowl. & L. 31 2 Dowl. & L. 23 . - 6 Mee. & W. 626 9 Law J., Ex. 323 10 Law J., C. P. 183 10 B. &C. 480 . 4 Mee. & W. 531 '6 Mee. & W. 131 9 Law J., Ex. 53 ^6 Mee. & W. 131 8 Dowl. 165 ■^ 12 Law J., Ex. 295 \2 Dowl. & L. 945 14 Law J., Q. B. 216 "5 Dowl. 373 . ■ 1 Ad. & E. 635 , 4 N. & M. 873 "4B. &Ad. 544 . ' 1 Ad. & E. 635 4 N. & M. 873 . '3Bing. N. C. 835 6 Law J., C. P. 279 ■^3 Dowl. & L. 617 10 Jur. 392 . 4 Tyrw. 730 . 15 Law J., Ex. 346 1 Car. & K. 569 4 Dowl. 566 1 Dowl. & L. 72 ' 3 Mee. & W. 45 . 7 Law J., Ex. 49 '^ 1 Dowl. & L. 980 '2 C. M. & R. 736 4 Dowl. 396 "4 Mee. & W. 676 Z DowL 133 1 Bing. N.S. 266 5 Law J., C. P. 333 r 1 C. M. & R. 383 [3 Law J., Ex. 341 2 Tyrw. 500 . ^3 Law J., C.P. 186 10 Bing. 553 . This Digest. Page. I Ejectment . .117 Judgment, nonsuit 161 Certificate . 66 Ejectment . . 107 Affidavit . . 13 > Ejectment 121 Ejectment . 108 Ejectment . .120 Nisi Prius . 191 Ejectment . .113 Ejectment . 107 Ejectment . .120 Ejectment . 114 [■Judgment, nonsuit 156 Arbitration . 28 Abatement of suit 1 Changing venue . 280 I Costs . . 74 I Costs . . 73 Staying proceedings 267 Writ 298 258 Rules . T Consolidation of J actions . . 73 Consolidation, actions 73 1 Consolidation of J actions . . 73 I Nonsuit . . 196 Distringas . .101 Judgment, nonsuit 158 Pleading . 232 Notice of trial . 203 Certificate . 68 Rules . . 260 Declaration . 91 ^Writ . Costs l Execution . Pleading I Pleading . Orders V Pleading Recognizance I Writ 297 76 126 245 236 209 235 252 311 TABLE OF CASES. XXXUl Cases. Dunn ». Hodson V. Hodson . V. Packwood . V. Walters Du Pre V. Langridge Durrant v. Scrocold Dyke v. Edwards Dvson V. Warris Eades v. Booth V. Everett Eady, re Eager v. Cuthill Earp V. Satchell Easthope ?>. Westmacott Eastmure v. Hawes Easton v. Pratchett Eastwick v. Harman . Eaton V. Shuckburgh Eccles V. Cole V. Harper Edden v. Ward . Eddison v. Pigram . Edgell V. Curling Edginton ik Proudman Edinbro' & Leith ComT V. Dawson Edmonds, ex parte Edmund v. Cates Reporters. 1 Dowl. & L. 204 I Dowl. & L. 204 II Jur. 242 9 Mee. & W. 293 1 Dowl. N. S. 626 2 Dowl. .584 . S Doug. 400 2 Dowl. 53 1 M. & R. 474 . E. 263 Edwards v. Brown . V. Collins V. Dignam V. Jones V. Matthews V. Napier V. Price V. Ward and others Egan V. Rowley . Egerton v. Furzeraan Elderton v. Lucena Electric Telegraph Comp Nott and others 221 60 1.5 Law J., Q. B 10 Jur. 311 . '4 Law J., Ex 3 Dowl. 687 "G Dowl. 614 3 Mee. & W. 12 Law J., Q.B. 122 6 Law J., C. P. 245 '8 Law J., C. P. 236 7 Scott, 461 . 3 Dowl. 472 . '6 Mee. & W. 13 . 8 DowL 399 . " 2 Dowl. 624 . ' 8 Mee. & W. 537 10 Law J., Ex. 475 "14 Mee. & W. 248 14 Law J., Ex. 264 '9 Law J., Q. B. 323 8 Dowl. 725 . J., Ex. 33 & L. 600 152 16 Law 2 Dowl. 1 Dowl. P^"yl7Dowl. 573 5 Dowl. 702 ' 4 Mee. & W. 6 Dowl. 667 ' 1 C. & J. 354 1 Tyrw. 281 " 5 Dowl. 227 2 C. & M. 346 2 Dowl. 240 7 C. & P. 633 11 Jur. 398 66 177 487 9 Dowl. , 6 Dowl. 11 Jur. 413 , 8 Dowl. 145 . r 1 Ry. & M. 213 1 1 Car. cSc P. 613 2 Dowl. 568 ■jllJur. 590 . This Digest. Page. AflSdavits . 7 Pleading . . 225 Writ of trial 330 • Award i- Prochein amy I Costs AflBdavit Costs Writ Changing venue I Pleading . Judgment L Pleading Costs I Writ . L New trial L Pleading Pleading . Writ . Discontinuance . Costs Affidavit y Taxation [■ New trial Writ I Writ Nisi Prius New trial Rules Pleading Distringas - Nisi Prius AflSdavit Particulars 55 Declaration . 89 Declaration . .87 Judgment, nonsuit 171 Pleading . 240 251 78 6 80 312 280 235 151 234 80 303 181 240 244 322 99 75 3 270 182 303 302 192 177 254 233 Judgment, nonsuit 160 103 187 16 217 TABLE OF CASES. Cases. Elias V. Elias . Elkington v. Holland EUeman v. Williams Elliot p. Sparrow EUis V. Griffith V. Mason . Elsley V. Kirby Elton V. Larkins Elwood V. Ballock . Emblin v. Dartnell V. Dartnell Emerson v. Brown Emery v. Howard . Emett V. Ogden Emmett v. Standen Empey v. King . Empson v. Griffin . England v. Watson Englehart v. Moore V. Eyre Engler v. Twisden Entick V. Carrington Ernest v. Brown V. Bruce Esdaile v. Davies Esdale v. Maclean • V. Lund V. Maclean Evans v. Collins V. Davies V. Dublin and Droghe- da Railway Company V. Fry V. Millard . V. Rees . V. Rees V. Swete V. Watson V. Watson and another Everard v. Poppleton . Eyre v. Shelley V. Thorpe Everett v. Youells . Reporters. 9 Dowl. 104 9 Mee. & W. G59 . 2 Dowl. & L. 46 1 Har. & W, 370 . [MS. Exch. M, T. 1846 [lOJur. 1014 . J 8 Law J., Q. B. 196 I 7 Dowl. 598 . r 9 Mee. & W. 536 I I Dowl. N. S. 946 / 5 Car. & P. 305 . tl M. &R. 186 6 Ad. & E., N. S. 41 12 Mee. & W. 830 ri Dowl. & L. 1010 [13 Law J., Ex. 255 J 7 Man. & G. 476 . [8 Scott, N. R. 219 9 Mee. & W. 108 7 Bing. 258 [3 Mee. cSc W. 497 t 7 Law J., Ex. 198 / 14 Law J., Ex. 48 1 13 Mee. & W. 519 [9 Law J., Q.B. 23 tsP. &D. 160 . 9 Mee. & W. 333 15 Law J., Ex. 312 2 Dowl. 145 r4Bing. N. S. 714 \ 6 Scott, 580 19 State Trials, 1047 J 4 Bing. N.C. 162 1 7 Law J., C. P. 145 2 M. & Rob. 13 . 6 Dowl. 465 . 15Mee. &W. 277 13 Law J., Ex. 191 , 15 Mee. & W. 277 2 Dowl. & L. 989 . 3 Dowl. 786 • 1 14 Mee. & W. 142 . J 2 Dowl. & L. 865 3 Dowl. 581 . 3 Dowl. 661 . 12 Ad. & E. 167 . . 11 Law J., Q.B. 11 . 2 Bing. 326 , 10 Jur. 818 15 Law J., C. P. 256 rs Ad. & E., N. S. 181 ■ tl D. & M. 222 8 Mee. & W. 154 . 6 Dowl. 768 . 3 B. & Ad. 349 This Digest. Page. Judgment, nonsuit 160 Warrant of attorney 283 Taxation . 275 , Affidavit . . 9 I Arrest . . 30 \ Writ of trial . 330 I Writ of trial . 328 \ Admission of docu- J ments . . 3 Discontinuance 98 Judgment 152 I New trial . 178 |- Staying proceedings 265 . Writ of trial . 325 Award . . 55 ^Non pros. I Affidavit . ^Verdict . Pleading Attorney . Writ 1- Judgment Attachment > Amendment . Amendment Writ . Declaration Jury Demurrer . Costs . Term's notice •Iwrit 195 14 282 233 44 297 146 38 19 17 314 86 173 95 86 278 306 Distringas . . 102 Attachment . 34 Abatement of suit 1 Costs . . 84 Writ of error . 124 Taxation . 277 Costs . . 85 > Warrant of attorney 284 Taxation . 278 Costs . . 82 Jury . . 173 TABLE OF CASES. Cases. Facer v. French . Fagan v. Dawson and another Fagg V. Borsley . Fairbrass v. Pettit Fairthorne, Gent, in V. Donald Faith V. M'Intyre Fall V. Fall . Farley v. Briant . V. Hebbes Farmer v. Mountford V. Mountford Farr v. Ward Farraine v. Hill Farrell v. Dale . Farwig v. Cockerton Fearon v. White Featherston v. Bourne Fenn, ex parte . — — ex parte . Ferguson and another*. Bates Ferguson v. Clayworth and another . . . . Ferrall v. Alexander Ferrers, Earl of, v. Robins . Fidlett V. Bolton Field V. Cope . , . Figg V. Wedderbum . Figgins V. Ward Filmer v, Delber Finch V. Brook I'. Brook ■ V. Cocker V. Cocker . Findley v. Farquharson . Finn v. Woodman Firkin v. Edwards . Fish V. Palmer . Fisher v. Dudding . V. Papanicholas . • V. Snow . • V. Wainwright Reporters. 5 Dowl. 554 11 Law J., C. P. 319 JIC. &M. 770 12 Dowl. 107 13 Law J., Ex. 121 . J 15 Law J., Q. B. 130 t 3 Dowl. & L. 548 . 2 Dowl. & L. 675 7 C. & P. 44 . 2 Dowl. 88 . 6 Law J., Q. B. 87 . 3 Dowl. 538 9 Mee. & W. 100 . 8 Mee. & W. 266 2 Mee. & W. 844 . 4 M. & P. 413 . 2 Dowl. 15 3 Mee. & W. 169 5 Dowl. 713 . 12 Law J., Q. B. 102 2 Dowl. 527 . 2 Dowl. 527 MS. Exch. T. T. 1847 12 Dowl. & L. 165 J6Q. B. 269 . 1 Dowl. 132 2 Dowl. 636 . 4 Dowl. 282 [2 C. & J. 480 . tl Law J., Ex. 175 11 Law J., Q. B. 45 J 3 Law J., Ex. 135 t2C. &M. 424 3 Taunt. 484 [5 Law J., C. P. 214 . 12 Bing. N. C. 710 /2 Bing. N. S. 710 . [2 Scott, 511 J 3 Law J., Ex. 93 . 12C. &M. 412 . 3 Dowl. 678 . 15 Law J., C. P. 262 r2 C. & J. 464 . tl Law J., Ex. 132 9 Car. & P. 478 2 Dowl. 460 10 Law J., C. P. 323 /2C. &M. 215 . 12 Dowl. 251 . 3 Dowl. 27 . 1 Mee. & W. 480 . This Digest. Page. . Pauper 224 Nolle prosequi 195 > Pleading 237 Affidavit . 12 I Attorney 42 . Pleading . 241 Nisi Prius . 192 . Attachment 31 Costs . 84 . Attorney 45 Writ of trial 325 . Writ of trial . 326 Interpleader 134 . Abatement of suit 1 Rules 254 . Writ of trial . 323 Witness 293 . Judgment, nonsuit 164 Attachment 31 . Attorney 40 Judgment, nonsuit 164 > Prisoner . Bail 249 62 Costs . 75 . Rules 255 > Interpleader 135 New trial 179 • 1 Rules . . Attorney 255 43 V Judgment . 146 V Judgment 148 1 Affidavit . Writ 11 310 . Costs . 85 I Irregularity 144 Notice to produce 204 . Declaration , 85 Judgment 150 ' V Cognovit 69 . Demurrer 93 Particulars demand 218 TABLE OF CASES. Cases. Fishmongers' Company t> Robertson and others . Fitch V. Green Fitzball V. Brook Fleetwood v. Taylor Fleming v. Crisp V. Slater Fletcher v. Everard . P. O. V. Crosbie an others V. Greenwell V. Lew . administrators v. Letch mere Flight V. Cook V. Glossop . Florence v. Colverd Foley V. Botfield Forbes t\ Crow t\ Simmons V. Mason Ford, G. S. in re V. Bernard V. Dillon ■ ?i. Nassau V. Nassau . • V. Stott . Fordsham v. Round V. Rust . Forman v. Dawes Foster v. Kirkwall Fortesque v. Jones Fosberry v. Butler Foss V. Racine V. Wagner Foster v. Alvez . V. Bank of England • V. Bank of England V. Claggett IK Jolliffe • V. Pointer V. Prime V. Pryme Foulkes, ex parte Fox V. Veall . France v. Clarkson Reporters. -IG Law J., C. P. 118 2 Dowl. 4:i9 . 2 Dowl. & L. 477 G Dowl. 99(i . 5 Dowl. 454 I Dowl. & L. 696 . 13 Law J., Q. B. 44 II Law J., Ex. 16 4 Dowl. 166 . 5 N. & M. 351 , 3Ad. &E. 551 12 Law J., C. P. 151 1 Dowl. &. L. 714 . 13 Law J., Q. B. 78 . 2 Scott, 224 . MS. Exch. H. T. 1847 16 Law J., Ex. 3 1 Mee. & W. 465 . 5 Law J., Ex. 169 9 Dowl. 37 3 Dowl. 104 10 Jur. 757 6 Bins;. 535 2 N. & M. 662 11 Law. J., Ex. 287 . 9 Mee. & W. 793 . 11 Law J., Q. B. 235 . 4 Dowl. 569 . 4 Dowl. 90 . 1 Car. & M. 127 4 Dowl. 370 1 Dowl. 524 . 2 Dowl. N. S. 390 4 Mee. cS: W. 610 . 7 Dowl. 203 2 Dowl. 499 . 3 Bing. N. C. 896 4 Scott, 535 2 Dowl. & L. 790 14 Law J., Q. B. 178 15 Law J., Q. B. 212 . 10 Jur. 372 6 Dowl. 524 1 Scott, 54 8 Mee. & W. 395 10 Law J., Ex. 418 . 8 Mee. & W. 664 8 Mee. & W. 664 . 15 Law J., Ex. 300 . 8 Mee. & W. 126 . 10 Law J., Ex. 273 5 Dowl. 699 This Digest. Page. Judgment Rules Judgment 145 . 259 149 Writ of trial . 329 Particulars demand 218 Distringas . . 101 Warrant of attorney 293 Declaration . 86 Notice of action . 193 . Costs . . 75 Affidavit 40 I Attorney . Demurrer . . 96 Motion . . 177 Special case . 269 I Notice of trial . 202 Writ of trial . 328 Writ . . 313 Outlawry . . 213 Pleading . . 244 Interpleader . 138 Prisoner . . 249 Attachment , 38 Costs . . 98, 74 Writ of trial . 323 Judgment, nonsuit 163 Amendment . 17 Orders . . 207 Motions . .174 Judgment, nonsuit 159 I Pauper . . 224 Pauper . , 222 1 Consolidation of J actions . 72 ^Amendment . 19 ] Inspection of docu- f ments . . 133 Warrant of attorney 286 New trial . .185 Certificate . . 67 - Declaration Non pros. . Execution - New trial . Cognovit 86 196 127 185 70 TABLE OF CASES. XXXVll Cases. France v. Clarkson V. Parry Francis v. Doe Franklin v. Hodgskinson Frankum v. Lord Falmouth Fraser v. Case . V. Moses Freeman v. Crofts . French ?'. Burton V. Burton Frodsham v. Myers Frost V. Hayward Fry V, Rogers Fryer v. Smith Fuller V. Fenwick Furnivall v. Stringer Fursey v. Pilkington Fyson v. Kemp Reporters. 2 Dowl. 532 . 1 Ad. & E. 615 . f 5 Mee. & W. 272 [ 7 Dowl. 523 'lOJur. 249 15 Law J., Q. B. 132 "4Dowl. G5 1 Dowl. 725 1 Dowl. N. R. 705 ■ 4 Mee. & W. 1 . fi Dowl. 698 . 2C. &J. 634 . 1 Law J., Ex. 257 4 Dowl. 280 12 Law J.. Ex. 84 2 Dowl. 412 1 Dowl. & L. 75 12 Law J., C. P. 223 10 Jur. 1057 16 Law J., C. P. 79 5 Dowl. 195 2 Dowl. 452 . [2 Dowl. 620 t 4 Tvrw. 990 . This Digest. Page. Sheriff . Writ of error • Writ of error . •Writ of trial Award 260 123 123 320 ^Writ . Taxation . . 274 Distringas . .105 Nul tiel record 206 I Pleading . . 234 Costs of day . 80 Term's notice . 278 Costs . . .73 Affidavit . . 12 Declaration . 89 323 56 Writ . . 321 Warrant of attorney 289 Irregularity 143 Gadderer v. Sheppard Gale V. Winks Gambrell v. Earl of Falmouth Gandell v. Motte —^ — V. Rogier V. Rogier . Garden v. Cresswell Gardner v. Green V. Jessop Garland v. Goulden Garratt v. Babington V. Hooper . Gaskell?:. Sefton the younger Gatliffe ?>. Bourne Gay V. Pitman Geacli V. Atkinson V. Coppin V. Ingall V. Ingall Gedye, in re 4 Dowl. 577 6 Law J., C. P. 8 . 5 Dowl. ."'.48 5 Ad. & E. 403 5 Law J., K. B. 253 M.S. Exch. T.T. 1847 4B. &C. 862 . 7 D. & R. 259 4 B. & C. 862 6 D. & R. 259 2 Mee. & W. 319 3 Dowl. 343 . 2 Wils. 42 2 Y. & J. 89 1 Dowl. & L. 820 1 Dowl. 28 /15 Law J., Ex. 107 [ 3 Dowl. & L. 267 . 2 M. & Rob. 100 5 Scott, 795 . 7 Law J., Ex. 314 3 Dowl, 74 / 14 Mee. & W. 95 1 9 Jur. 691 ri4Mee. &W. 95 . 1 9 Jur. 691 J 14 Law J., Q. B. 238 L2 Dowl. & L. 915 Writ . > Distringas y Taxation Judgment, nonsuit I Affidavit > Writ of error Attachment Rules Attorney Attachment Writ of trial . Plea in abatement > Interpleader Jury Interpleader Attachment Bail ^ New trial . > Nisi prius > Taxation 309 100 276 167 12 123 37 254 39 31 327 246 139 171 134 36 62 178 190 272 TABLE OF CASES. Cases. Gee I'. Swann Geeckie v. Monck Geeves r. Gorton V. Gorton Gibb V. King Gibbons r. Spalding . Gibbs V. Giles V. Ralph ». Stead V. Tunalay . Gibson r. Ranelagh, Lord Gilbert v. Hales V. Kirkland V. Kirkland Giles V. Tooth Gill V. Rishworth Gilliatt V. Gothard Gilmore v. Melton Gilson V. Carr V. Carr Gimbert v. Coyney Gingell v. Bean •{!i Reporters. . 9 Mee. & W. 685 . 1 Car. & K. 155 . 10 Jur. 272 . ri5 Mee. & W. 186 115 Law J., Ex. 1G9 . J2 Dowl. & L.806 19 M. G. cScSc. 1 J 12 Law J., Ex. 185 •[11 Mee. &\V. 173 Dowl. 325 UMee. & ^A^ 804 , Law J,, Ex. 6 P. & C. 528 1 M. G. &Sc. 640 7 Scott, 231 . 2 Dowl. cV L. 227 2 Dowl. 153 . . 1 Dowl. 1.53 f 10 Jur. 948 . "tl6Law J., C. P. 3 r 2 Dowl. &. L. 416 . i 14 Law J., Ex. 1 . MS. Exch. T. T. 1846 2 Dowl. (i32 . 4 Dowl. G18 . 4 Dowl. 618 . 1 M'Lel. &Y. 4G9 r 1 Man. & G. 555 1 1 Scott. X. R. 390 This Digest. Page- Distringas , Amendment Arbitration V Certificate ' > Prisoner • I Affidavit . Costs .} V. Bean Gisborne v. Hart Glasieri). Cooke Glenn v. Wilks Goatley v. Herring Goddard v. Harris Goff». Mills . Goggsz). Huntingtower, Lord Scott, X 1 Scott, N. R. 153 1 M. & G. 50. J 5 Mee. 6c W. 50 \8Law J., Ex. 197 5 N. & M. 860 4 Dowl. 322 12 Law J., C. P. 32 7 Bing. 320 . 2 Dowl. & L. 23 12 Mee. & W. 503 „ . T :. ri2 Mee. & W. 503 Huntingtower, Lord-j^ ^ j^^^.^ ^ l_ 599 11 Jur. 544 . , 6 M. & Sc. 413 . [9 Bing. 667 . \ 3 M. & Sc. 65 . , 3 Dowl. 751 J 2 Dowl. & L. 661 \ 14 Mee. & W. 4 J 2 C. M. & R. 637 • I 4 Dowl. 392 . J 2 C. M. & R. 694 |4 Dowl. 431 . r 15 Mee. & W. 16 •\15 Law J., Ex. 191. , 7 M. & G. 607 . Goldicut V Good V. Wilks . Goodburne v. Bowman Goodenough v. Butler Goodliffz;. Fuller . Goodricke v. Turley . V. Turley Goodyear v. Simpson Gordo). V. Ellis 99 17 28 68 251 5 80 175 Jury Notice of action . 198 New trial . 1 79 Rules . . 255 Declaration . 89 Judgment, nonsuit 165 Declaration . 88 • Stay proceedings 266 ■Writ of trial . 328 Witness . . 295 Judgment, nonsuit 159 Affidavit . .16 Writ . . 297 Notice of action . 197 Motions 17(> r Judgment, nonsuit 167 • 1 Award . . 49 Interpleader . 142 Writ . . . 303 Particulars, demand 216 29 36 306 Arrest Attachment Writ . Appearance New trial . Attachment ^ Costs Discontinuance . I Inspection of docu- 1 ments I Affidavit I Oyer I Award ' Pleading 21 184 38 85 97 133 13 215 59 242 TABLE OF CASES. Cases. Reporters, This Digest. Page, Gore V. Morphew . 8 Dowl. 137 . Pauper 224 r. Wright 1 Dowl. N. S. 864 . Execution 128 Goren v. Tute . 10 Law J., Ex. 61 Affidavit . 5 V. Tute r 7 Mee. & W. 142 . 1 10 Law J., Ex. 61 J- Irregularity 143 Goslia r. Cotterell /UMee. &W. 71 . • t 2 Dowl. cSc L. 893 I Writ of trial 323 Gosling V. Burnie 1 M. & M. 531 Changing venue 280 Gosset V. Howard J Exch. Chamb. in Error •1 H.T. 1847 >■ Attachment 38 V. Howard J Exch. Chamb. in Error t H. T. 1847 V Inferior court . 131 Gould V. Oliver . 6 Law J., C. P. 290 Demurrer 94 Grace v. Clinch 12 Law J., Q. B. 273 Certificate . 68 Graff v. Willis . . 5 Dowl. 715 . Particulars demand 220 Graham v. Beaumont 3 Sc. 287; 5DowL49 Rules 257 V. Sandrinella JlOJur. 1061 •t6Law J., Ex. 67 . JBail 60 Granger v. Fry 5 Dowl. 21 . . Attachment 35 Grant v. Flower . 5 Dowl. 419 , Judgment . 147 v. Fry . 4 Dowl. 135 Interpleader . 134 V. Fry . 3 Dowl. 234 . Affidavit . 14 , qui tam, v. Ridley 12 Law J., C. P. 151 Pleading 226 V. Smith . 5 Dowl. 107 . Writ of error . 123 V. Willis 4 Dowl. 581 . Bail 62 Grantham, in re Wilkinso n llJur. 242, B. C. Affidavit 12 Graves v. Browning . 6 Ad. & E. 805 Affidavit 3 V. Walter 1 Scott, 310 Irregularity 142 Gray r. Cox . 5 B. & C. 458 . New trial . 183 r. Leaf . 8 Dowl. 654 Award 55 V. Withers . 4 Dowl. 636 . Warrant of attorney 289 Grazebrook v. Pickford 10 Mee. & W, 279 Costs 77 Green v. Bolton r4Bing. N. S. 308 . •\6 Dowl. 434 |- Inferior court 129 V. Brown 3 Dowl. 337 Interpleader . 135 V. Clark . 2 Dowl. 18 Particulars demand 218 V. Kettleby reMee. &W. 731 [8 Dowl. 783 . |- Outlawry . 213 r. Light . 3 Dow!. 578 Attachmeut 33 i: Miller 2 B. & Ad. 781 Writ of error 123 V. Mitton . . 4 B. & Ad. 369 Amendment 18 V. Mitton J 4 B. & Ad. 369 1 1 N. & M. 673 . |- Declaration 90 V. Prosser . 2 Dowl. 99 Attachment . 32 V. Smith 5 DowL 174 Writ of error . 124 Greenshield v. Pritchard . 8 Mee. & W. 148 . Writ . 317 Greenshields v. Harris 9 Mee. & W. 774 Writ 314 Greenwood v. Dyer. . 5 Dowl. 255 Attachment 31 Gregory v. Brunswick, Duke of 1 16 Law J., C. P. 34 . Writ of error . 124 V. Des Anges . 3 Bing. 85 ; 5Dowl. 19: \ Writ 313 V. Eastabrook 1 Dowl. & L. 881 . Distringas 100 Grenfield v. Edgecomb . 14 Law J., Q. B. 322 . A%Yard 57 Greville v. Chapman . . 15 Law J., Q. B. 41 Error of writ . 123 Grey v. Gedneff 3 B. & B. 395 . Plea in abatement 246 xl TABLE OF CASES. Cases. Griffin v. Taylor Griffiths V. Hughes V. Williams r. Thomas and another Grindall ii. Goodman Grindley». Thorn Gripper v. Templemore, Lord - Groom v. Wortham Grout V. Glazier Grosjean v. Manning Grover v. Hindmarsh . Guarantee Society and A. \ Levy, in re . . j Gunter ?;, M'Tear . .| Guthrie and anr. v. Bowman Gurney v. Gurneyand anr. < I'. Gurney and another -| V. Key . . . Gwyn V. Evans Reporters. 6 Dowl. G20 16 Law J., Ex. 176 . 1 T. R. 710 15 Law J., Q. B. 336 5 Dowl. 378 5 Dowl. 544 . 5 Dowl. 408 W.W.&D.65;lJur.705 12 Law J., C. P. 88 10 Law J., Ex. 276 . 1 Law J., Ex. 252 2 C. & J. 635 . 7 Dowl. 607 ■1 Dowl. & L. 907 . ■ 1 Mee. & W. 201 5 Law J., Ex. 115 . MS. Exch. H.T. 1845 15 Law J., Q.B. 265 3 Dowl. & L. 734 . 3 Dowl. & L. 734 15 Law J., Q.B. 265 3 Dowl. 559 . 12 Law J,, Q. B. 63 This Digest. Page, Bail . . 59 Judgment . . 155 Attorney . 43 Arbitration . 25 Taxation . 276 Distringas . . 102 Judgment,nonsuit 157 Attorney Verdict > Notice of trial Distringas Witness i- Witness Award |- Rules . |- Special jury Costs Affidavit 39 282 202 102 296 294 55 255 172 74 11 H. Hacken v. Hassell Hagger v. Baker r. Baker Haigh V. Frost Hair, in re Hale V. Dale Hall, ex parte V. Anderton V. Davis V. Ive V. Middleton Redington V. Rouse V. Storey V. West Hallen v. Smith Hallett V. Cresswell and others v. Cresswell 1 Dowl. & L. 1006 2 Dowl. & L. 856 . 14 Mee. & W. 9 . 14 Law J., Ex. 227 7 Dowl. 743 8 Scott, N. S. 231 . 2 Dowl. & L. 269 . 8 Dowl. 599 8 Law J., Q.B. 211 8 Dowl. 326 . MS. Exch. T. T. 1844 8 Scott, N. R. 715 14 Law J., C. P. 24 4 N. & M. 368 4 Ad. & E. 107 . 9 Law J., Ex. 100 5 Mee. & W. 605 4 Mee. & W. 24 . 6 Dowl. 656 16 Law J., Ex. 17 1 Dowl. & L. 412 5 Mee. & W. 159 7 Dowl. 394 1 B. C. Rep. 1 . 10 Jur. 266 15 Law J., Q. B. 129 Appearance Award 22 56 25 i- Arbitration . Warrant of attorney 285 ■Affidavit 10 Warrant of attorney 285 Affidavit . .17 Affidavit , .16 New trial . 177 |- Pauper I Writ of trial I Writ I Verdict . 222 330 296, 308 281 Changing venue . 280 Orders . 209 i- Taxation I Motion Prisoner 273 176 248 TABLE OF CASES. xli Cases. Hallett V. Hallett . | Halliday v. Saunderson . < Halton v. White Ham zj. Gray . . . < Hambridge v. De la Crouee \ and another . . f Hamblin v. Crossely . Hamer v. Anderton . V. Anderton Hamlet v. Bingham V. Breedon Hammond v. Nairn Hamp V. Warren Hanbury v. Ella Handford v. Handford Haudley v. Levi . Hands v. Clements Hanmer v. Mangles V. White Hannah v. Willis V. Willis V. Wymaa V. Wymaa . Hannan v. Jube Hansby v. Evans Hanson v. Shakelton Hanwell v. Mure Harborough, Earl v. Shadlow Harden and anr. v. Forsyth Hargrave v. Holden Harlow v. Read . . Harmer v. Johnson V. Johnson Harnett v. Johnson . Harries, H. J., in re . Harrington v. Page . Harris v. Gribble V. Griffith V. INIatthews V. INIatthews . and anr. v. Osbourn . V. Peck . V. Robinson PvEPORTERS. 5 Mee. & W. 25 7 Dowl. 389 1 Alcock & Napier, 14 (Irish) 2 Man. & G. 295 G B. & C. 125 9 D. & R. 125 . 16 Law J., C. P. 85 lOJur. 109f; 8 Ad. & E. 677 9 Dowl. 119 9 Dowl. 119 . 5 Scott, N. S. 889 4 Man. cSc G. 909 9 Mee. & W. 221 12 Law J., Ex. 215 1 Ad. & E. 61 . 3 Law J., K. B. 147 6 Dowl. 473 8 B. & C. 637 ' 12 Law J., Ex. 437 1 Dowl. & L. 379 '12 Mee. & W. 313 1 Dowl. & L. 394 'l2 Mee.& W. 519 1 Dowl. & L. 653 '6 Dowl. 417 4 Bing. N. S. 310 8 Law J., C. P. 233 5 Bing. N. C. 385 3 Dowl. 673 2 C. M. & R. 239 3 Dowl. 673 10 Jur. 926 . 4 Mee. & W. 565 7 Dowl. 198 4 Dowl. 48 2 Dowl. 155 10 Law J., Ex. 320 10 Law J.,Q. B., 132 3 Dowl. 176 14 Law J., C. P. 239 14 Law J., Ex. 292 14 Mee. & W. 336 . 3 Dowl. & L. 38 9 C. & P. 206 . 1 Dowl. &L. 1018 2 Dowl. 164 3 Law J., Ex.208 4 Dowl. 289 . 4 Dowl. 60S 4 Dowl. 608 . 2 Cronip. & M. 629 2 Dowl. & L. 106 15 Law J., C. P. 208 This Digest. Page. Award 46 [-Abatement of suit 1 Distringas . . 100 Judgment, nonsuit 165 Appearance 22 Outlawry 212 Demurrer . 95 Rules 259 Non pros. 195 Non jiros. 195 Sheritf 264 Writ 302 Declaration . 91 Pleading 241 Inferior court 132 Affidavit . 4 Costs . . 76 Nul tiel record 206 V Bail JBail . Motions . I Writ Award . 61 . 63 174 299 . 49 > Judgment, nonsuit 161 Writ . . 297 Bail . . 62 New trial . 185 Warrant of attorney 288 Judgment . 144 Award . . 57 Writ , . .305 ■ Warrant of attorney 288 Nisi Prius . . 192 Taxation . . 275 Attorney . . 39 Distringas . .104 Affidavit . . 8 Rules . . 260 Affidavit . . 5 Attorney . 42 Warrant of attorney 287 Appearance . 22 c3 xlii TABLE OF CASES. ■ V. Hassell . Hawkyard and anr. v. Green wood and others . , exors. V. Stocks — - & anr. v. Stokes & ors Hawley v. Shirley Haworth v. Holgate ■ V. Ormerod V. Whalley Hay V. Charville, Earl • V. Fisher V. Howell . Hayley r. Rackett . {I { Cases. Harris v. Turtle Harrison v. Bennett . ■ V. Dickinson . —— V. Greenwood V. Heathorn . & ors. J'. Heathorn & ors V. Jones — — V. Roberts V. Roberts . V. Smith V. Sutton . V. Wood . — — V. Wray , exor. V. Wright Harsant v. Busk Hart V. Cutbush ■ V. Middleton Hartley v. Rodenhurst Harvey v. Hewitt V. Holtman V. O'Meara Harwood v. Law, P. O. &c. Hasker v. Jarmaine Hatfield v. Hatherfield . Hatton V. Hojikins V. Macready . Hawkins v. Benton • V. Benton and another and another v. Benton 1 and another Reporters. 8 Mee. & W. 258 Law J., Ex. ;« C. & M. 203 . Mee. & W. 355 Dowl. 6 9 Jur, 1098 3 Dowl. & L. 353 4 Bing. N. S. 443 I Dowl. cSi; L. 529 II Mee. & W. 105 10 Jur, 458 10 Jur. 458 1 Dowl. & L. 876 J 12 Mee. & W, 307 1 1 Dowl. & L. 471 8 Bing. 372 . M. & Sc. 53G Mee. & W. 815 Dowl. & L. 366 2 Dowl. &L. 695 13 Mee. & W. 816 11 Law J., Q. B. 264 2 Dowl. 456 2 Car. & K. 9 . 4 Dowl. 748 8 Dowl. 598 . 12 Law J., Q. B. 185 7 Dowl. 725 . 10 Law J., Ex, 30 J 2 Law J., Ex. 166 1 1 C. & M. 408 . 1 Dowl. & L. 809 6M, &Sel.271 . 2 Dowl. & L. 5 14 Law J., Q, B. 9 2 Dowl. & L, 465 This Digest. Page. { ^15 Law J., Q, B. 13 f 12 Mee, & W. 776 113 Law J., Ex. 341 J 10 Jur. 14 12 Dowl. &L. 936 J 2 Dowl. & L. 936 L 9 Jur, 451 2 Dowl. & L, 936 r 5 Dowl. 393 1 2 Har. & W. 331 2 Y, & J. 257 re Ad. cScE, 300 1 13 Law J., Q. B, 265 1 Car. & K, 586 2 Dowl. & L. 16" 2 Mee. & W. 722 2 N, & R, 39" , 5 Mee. & W. 620 Prisoner . ■ New trial . . Bail - Writ of trial 248 179 62 327 Demurrer. . 94 Motions . ,176 Judgment, nonsuit 170 Appearance , 22 Writ . . .307 Rules . . 259 IWrit of trial . 326 I Particulars demand 218 IWrit 308 138 y Interpleader Pleading , 235 Taxation . . 274 Computation of time 72 Writ New trial Pleading Bail Execution I Writ Attachment Arrest Writ of trial Rules Award Arbitration J- Judgment . Y Award 1- Office copies Award 298 183 235 60 126 306 36 29 322 257 50 2G 147 52 206 49 ^Judgment, nonsuit 163 Pleading . . 232 > Recognizance . 252 Notice of trial 203 Distringas , 102 Particulars, demand 217 Judgment, nonsuit 157 Sherifif . . 264 TABLE OF CASES. xliii Cases. Reporters. This Digest. Page. Haynes v. Carr . . . 11 Law J.. C. P. Ill V. Powell . . 3 Dowl. 599 r 2 Mee. & W. 56 16 Law J., Ex. 32 J2C.Sc M. 689 . t3 Law J., Ex. 210 16 Law J., C. P. 95 4 Mee. & W. 194 [6 Ad. & E. 119 1 1 N. & P. 288 . 9 Mee. & W. 1 8 Ad. & E. 605 . [9 Law J., Q. B. 221 tsP. &D. 625 . J 2 Mee. & W. 76 t 6 Law J., Ex. 23 2 Dowl. 163 . rs Bing. N. S. 466 i 7 Dowl. 437 . 4N. &M. 235 . 11 Mee. &W, 669 [2 Dowl. & L. 40 tl3 Law J., Q. B. 218 11 Law J., C. P. 1 „ , TT , „ „ ri2Law J.,Q. B. 100 Helmes v. Hedges & another | g Dowl. N. S. 350 . Hemming v. Ackermann V. Parry Hemsworth v. Brian Hayter v. Moat Haythorne v. Bush Hayward v. Bennett V. Gifford V. Philipps Hazlewood v. Back Head V. Baldry . V. Baldry Heal V. Curtis Heald v. Hall Hearsay v. Pechell Heath v. Brindley V. Nisbett . V. White Heenan v. Evans & another Prochein amy Affidavit V Judgment V Interpleader Amendment , Costs [■ Award Costs , Taxation [■ Certificate 251 14 152 135 18 84 55 77 271 69 V. Brian Henchcliffe v. Jones Henley v. Hailing Hennah v. Wyman . Henry v. Goldney V. Goldney Herbert v. Darley V. Pigott Herring v. Watts Heullen, ex parte Hews V. Pyke Heywood D. Fayrer . Hibbert v. Barton Hickman v. Dallimore V. Fernie . Hicks V. Marrico Higginbottom v. Higginbot- torn ... Higgins V. Ede and another 14 Law J., Q. B. 136 6 C. &P. 580 . 14 Law J., C. P. 134 J 2 Dowl. & L. 844 114 Law J., C. P. 134 4 Dowl. 86 . 1 H. & W. 2 . J 4 Law J., Ex. 200 13 Dowl. 673 . f 15 Law J., Ex. 298 1 10 Jur. 439 /lOJur. 439 115 Law J., Ex. 298 4 Dowl. 726 J 2 C. & M. 384 12 Dowl. 392 2 Dowl. & L. 609 7 Price, 594 2 C. & J. 359 . 11 Law J.,Q. B. 52 / 10 Mee. & W. 678 112 Law J., Ex. 70 4 Dowl. 278 . 3 Mee. & W. 505 3 Tyrw. 216 . |8 Dowl, 126 f 15 Law J., Ex. 77 1 15 Mee. & W. 76 • Judgment, nonsuit 156 Taxation . 272 -Costs . . 75 Warrant of attorney 289 . 209 Orders Y Appearance Sheriff i- Certificate . Writ of trial Declaration Affidavit J- Arbitration . Order Arbitration • I Writ ' I Pleading 20 261 64 329 91 14 28 207 27 299 240 246 143 247 280 • Plea in abatement Irregularity f Plea in abatement Changing venue Affidavit Bail Declaration I Cognovit Distringas New trial Affidavit Warrant of attorney 286 1- Particulars demand 219 6^ 63 88 70 101 177 5 xliv TABLE OF CASES. Cases. Higgins V. Nichols V. Stanley Higham and Jessop, ex parte Hubert i\ Wilkins Hill V. Brown . V. Enoe V. Harvey r. Salt V. White Hilliard, in re Hilton V. Earl Granville Hind V. Kingston Hinton v. Acraman V. Dean V. Stevens . Hiscocks V. Kemp . Hitchcock V. Hunter Hitching V. Farrow . Hobbs V. Young Hobson V. Stewart . V. Wadsworth. Hoby V. Built . Hockin v. Reid . Hodd V. Langridge . Hodding v. Sturchfield Hodges V. Litchfield, Lord, V. Ormond V. Toplis and another Hodgins v. Hancock Hodgkinsoa v. Hodgkinson V. Whailey V. Wyatt . Hodgson V. Caley . V. Chetwynd V. Gamble — ■ — V. Paterson V. Wise . Hodson r. Pamel Hoggett V. Oxley . Holdsworth v. Wakemaa Holland v. Henderson Reporters. 7 Dowl. 551 2 Man. & G. 336 1 Woll. 28 . 8 Dowl. i;59 . 11 Jur. 290 13 Law J., Q. B. 65 f 2 C. M. & R. 307 14 Dowl. 163 . 2 C. & M. 420 . J 8 Dowl. 13 \9 Law J., C. P. 3 2 Dowl. & L. 919 . 13 Law J., Q. B. 193 G Dowl. 523 15 Law J., C. P. 2 4 Dowl. 352 4 Dowl. 283 . JSN. &M. 113 . [4 Law J., K. B. 226 10 Law J., Q. B. 87 9 Jur. 809 2 Dowl. & L. 474 16 Law J., Q. B. 145 8 Dowl. 601 r 3 B. & Ad. 350 tl Law J., K. B. 121 1 C. & J. 466 . 5 Dowl. 721 r 7 Man. & G. 957 . 1 2 Dowl. & L. 596 2 Dowl. 741 . 3 Law J., C. P. 232 f 15 Law J., C. P. 195 1 10 Jur. 438 J 14 Mee. & W. 120 . t 2 Dowl. & L. 894 I 3 Law J., K. B. 167 '11 Ad. & E. 533 . J2C. &J. 86 . I I Dowl. 298 . 13 Law J., Q. B. 73 8 Dowl, 318 / 3 Dowl. & L. 45 1.14 Law J., Ex. 264 3 Dowl. 174 . . 11 Law J., C. P. 289 f 4 Mee. & W. 536 18 Law J., Ex. 71 . r 4 Mee. & W. 373 ' 1 7 Dowl. 208 . r 9 C. & P. 324 . l2M. &R. 251 , 1 Dowl. 532 j4Mee. &W. 587 . 1 1 Horn. & H. 469 This Digest. Page, Writ of trial . 325 Judgment, nonsuit 156 Award . . 47 Affidavit . . 7 Taxation . 278 Warrant of attorney 292 ■Writ . . 310 Writ of trial . 325 ■ Plea in abatement 247 Attorney . . 41 Demurrer , . 97 Warrant of attorney 289 Demurrer . 96 Rules . . 255 Writ . , 307 - Warrant of attorney 293 Bail . , 60 Notice of trial . 201 W>it . . .300 Award , . 48 Declaration . 91 j- Attorney Costs . Writ IWrit . 43 80 311 , 309 Pleading . . 234 Setting aside pro- ceedings . . 265 Pauper . . 223 Demurrer . • Writ ■Writ , Judgment . Pleading , - Nul tiel record Particulars Costs . ■ Arbitration 92 312 314 151 238 205 222 81 > Pleading 27 . 238 I Nisi Prius . 180 Warrant of attorney 293 I Judgment, nonsuit 164 TABLE OF CASES. xlv Cases. Holland r. Phillips v. Tealdi V. Wright . Holliday v. Lawes . — — V. Lawes Holliert". Laurie and another- Holmes v. Mentze . . . • V. Newlands V. Russell Holt V. Ede — — V. Meadowcroff V. Miers V. The Queen (in error) Holten V. Guntrop , Hope, in re Hopkins v. Francis . r. Freeman V. Pledger V. Pledger V. Salembier . ' Hopper V. Smith Hopwood V. Watts . Horden v. Harbourn . Horlock V. Lediard . Horner v. Keppel Horsley v. Purdon . Hough V. Bond . V. Bond . Houghton V. Howorth Houlden v. Fasson . Houlditch V. Swinfen . Houseman v. Roberts How V. Pickard . Howard, in re V. Brown V. Vv'illiams Howell V. Bulteel . ■ V. Jacobs . V. Powlett Reporters. '10 Ad. & E. 149 8 Law J., Q. B. 235 "8DowI.320 . MS. Exch. E. T. 184 3 Bing. 541 '3 Bing. N. S. 776 5 Dowl. 636 ' 10 Jur. SfJO 15 Law J., C. P. 294 4 Ad. & E. 127 5 Law J., K. B. 62 'Dav. &M. 642 5 Q. B. 634 10 Law J., Q. B. 35 1 Dowl. & L. 68 . 4 M. & Sc. 467 9 Car. & P. 191 . 14 Law J.. Q. B. 98 ■ 3 Mee. & W. 145 6 Dowl. 130 . 9 Jur. 84U . ' 13 Mee. & W. 668 14 Law J., Ex, 207 '13 Mee. cV Vv. 372 2 Dowl. & L. 447 12 Law J., Q. B. 31 1 Dowl. & L. 119 5 Mee. & W. 423 7 Dowl. 493 1 M. & M. 115 5 B. & Ad. 1050 . 3 Law J., K. B. 109 7 Dowl. 546 '12 Law J., Ex. 33 10 Mee. &W. 677 '10 Ad. & E. 17 . ^2 P. & D. 234 . ' 3 Law J., Ex. 65 I 2 Dowl. 223 r 1 Mee. & W. 314 [5 Law J., Ex. 119 1 Mee. &W. 314 4 Dowl. 749 ' 6 Bing. 236 . 3 M. & P. 559 . 'a Scott, 1C9; 5 Dowl 5 Car. & P. 394 2 Mee. ic W. 273 2 Dowl. & L. 536 4 Bing. 393 . 11 Law J., Ex. 279 [3 Law J., Ex. 1 [3 Dowl. 99 . 5 Dowl. 394 . r 1 Dowl. 263 I 1 M. & Sc. 355 This Digest. Page ^Writ Demurrer . Rules Bail . I Costs y Interpleader > Interpleader I Writ . Judgment Writ . Jury- Notice to produce Error, writ of > Interpleader Attorney V Nul tiel record V Judgment AflSdavit Prisoner . V Arrest Witness . ^Judgment , Bail 319 92 254 59 78 134 137 318 153 306 172 204 125 135 39 206 155 12 248 30 296 146 62 • Particulars demand 220 [■ Pleading [■ Pleading . |- Judgment Pleading . Distringas 1 Affidavit . 223 240 144 239 100 13 36 Outlawry . . 214 Notice to produce 204 Changing venue . 280 Prisoner . . 249 Bail . . 59 Notice to produce 203 -Orders . . 207 Non pros. 195 I- Judgment nonsuit 165 xM TABLE OF CASES. Casks. Howen v. Carr . Howett V. Clements Howortli V. Hubbersty Hubbard v. Wilkinson V. Philipps Hubert v. Lord Weymouth Hudson V. Brown . Huggins V. Waydey and anr. Hughes ». Brand V. Brown . V. Buckland . V. Budd t: Jones . V. Rees Hulin V. Powell Humphries v. Griffiths V. Waldegrave, Earl, Humphreys v. Jones Hunt V. Hooper and another V. Hunt V. Hunt V. Pasman . Hunter v. Russell . Huntington v. Grand June tion Railway . Huntly V. Bulmer . Hutchinson v. Humbert Hutt r. Giles . ■{I Reporters. 5 Dowl. 305 8 Scott, N. S. 851 3 Dowl. 455, Ex. 5 Tyrw. 391 . 8 B. & C. 496 . r 13 Mee, & W. 703 [ 2 Dowi. & L. 707 2 H. Bl. 81G . 8 C. & P. 774 . IG Law J., Ex. 13G 2 Dowl. 131 [G Man. & G. 751 [13 Law J,, C. P. 73 r 15 Mee. & W. 346 [3 Dowl. & L. 702 8 Dowl. 315 . I B. & Ad. 388 . 4 Mee. & W. 408 G Law J., C. P. 236 '6 Mee. & W. 89 9 Law J., Ex. 180 ' 6 Mee. & W. 622 9 Law J., Ex. 244 '6 Mee. & W. 418 9 Law J., Ex. 168 'l Dowl. & L. G26 5 Dowl. 442 5 Dowl. 442 4 M. & S. 329 . 6 Scott, N. R. 627 -MS. Esch.M. T. 1846 6 Scott, 247 10 Law J., Ex. 418 . II Mee. & W. 756 This Digest. Page. Pleading . Award }- Demurrer 230 53 95 87 42 Declaration > Attorney . Pleading . . 236 Nisi Prius . 192 Notice of action . 200 Costs . . 76 ■ Rules ■ Notice of trial 256 199 New trial . 184 Bail ... 59 Writ . . 320 Warrant of attorney 286 y Appearance . 22 > Pleading . > Orders Sheriff . Award Award , Amendment Costs Witness Costs 227 208 261 49 52 17 79 295 73 Stay of proceedings 268 Pleadin;? . . 228 Ibbett V. Leaver . Ibotson V. Phelps Ikin V. Plevin Ilderton v. Sill Imeson, in re Ingram v. Lawson Inland v. Bushel . Inman v. Hill Ireland v. Berry V. Thompson Irving V. Baker . V. Heaton . Isaac V. Goodman 11 Jur. 415 [9 Law J., Ex. 232. L 6 Mee. & W. G2G 5 Dowl. 594 . f9 Jur. 948. . L 15 Law J., C. P. 1 . 8 Dowl. 651 . 9 Car. & P. 326 . 5 Dowl. 147 . '6 Dowl. 666 4 Mee, & W. 7 ' 1 Dowl. & L. 866 '6 Scott, 601 . 4 Bing. N. S. 716 15 Law J., Q. B. 322 4 Dowl. 638 ; 2 Sc. 798 2 Dowl. 34 Particulars of set-off 222 I Rules . . 254 Pleading . 239 I Taxation . .270 Affidavit . 6 Pleading . . 242 Interpleader . 136 > Attachment . 34 Declaration . 89 I Particulars . 221 Particulars demand 219 Writ . . .312 Judgment nonsuit 157 TABLE OF CASES. xlvii Cases. Isaacs V. Windsor . Iveson V. Conington Ivey V. Young Ivimey v. Marks Reporters. 3 Doug. 430 I B. & C. 160 . 5 Dowl. 450 II Jur. 355 This Digest. Page. . Notice of trial . 201 Attorney . 43 . Certificate . . 65 . Attorney . 45 Jacklin v. Fytche Jackson v. Chard V. Galloway and another v. Galloway V. Jackson V. Robinson V. Seagar V. Utting Jacob V. Hungate V. Hungate V. Magnay Jacobs V. Griffiths V. Layboum James v. Aswell V. Child . V. Crane and another v. Crane and another V. Hall V. Harris V. Harris V. Jenkins V. Raggatt V. Salter V. Saunders V. Swift V. Trevanion Jarnoain v. Hooper and others Jarvis v. South . Jee V. Potter . JeflFeries v. Yablonski . V. Yablonski . Jeffery, in re Jelks V. Foy Jenkins v. Biddulph and Leggo, in re Jenkinson t\ Morton Joel V. Dicker Johns V. Mills " 14 Mee. & W. 381 15 Law J., Ex. 102 2 Dowl. 469 . 8 Law J., C. P. 29 2 Dowl. & L. 839 'SDowl. 182 . 5Tvrw. 136 SDowl. 622 . 2 Dowl. & L. 13 . 10 Mee. & W. 640 2 Dowl. N. S. 543 3 Dowl. 456 3 Dowl. 456 • 12 Law J., Q. B.93 5 Dowl. 577 1 Dowl. & L. 352 11 Jur. 562 "2 C. &J. 252 . 2 Tvrw. 302 '3 Dowl. cScL. 661 15 Law J., Ex. 232 15 Law J., Ex. 232 3 Dowl. & L. 661 10 Jur. 569 . 7 C. & P. 257. 6 Dowl. 184 9 Moore, 590 . 2 B. &Ald. 776 , 1 M. & R. 501 ' 10 Bing. 429 4 M. cS; Sc. 316 "4 B. & C. 681 2 C. & P. 237 . 3 Dowl. 275 . 13 Law J., C. P. 63 13 Mee. & W. 152 1 Dowl. & L. 962 . 4 Dowl. 724 10 Jur. 438 15 Law J., C. P. 213 I C. & M. 71 3 Dowl. 37 . 4 Bing. 160 11 Law J.,Q. B. 71 11 Mee. & W. 300 . II Jur. 589 1 Dowl. 510 . ■ Notice of action . 20O Affidavit Certificate . Amendment . Writ 3 69 20 312 Pleading . 235 Attachment . 36 |- Judgment, nonsuit 159 Affidavit . . 13 Attachment . 37 Attorney . . 41 Warrant of attorney 289 Witness . . 296 Appearance . 21 I Particulars demand 219 y Abatement of suit 2 J- Special case . 270 Rules . . 25S Pauper . . 225 Warrant of attorney 287 Outlawry . . 213 Pleading . . 232 Nisi Prius . ISS y Notice of action 19S > Notice of action Bail . Sheriff . 198 59 262 'Warrant of attorney 291 Judgment, nonsuit 163 Pleading . 237 Writ of trial . 325 Affidavit . .16 Writ . . .299 Outlawry . 213 Arbitration . 26 Inferior court . 129 Warrant of attorney 286 Affidavit . . 16 xlyiii TABLE OF CASES. Cases. Johnson r. Bray V, Budge V. Budge V. Driver w. Hamilton . V. Holsworth • V. Jenkins IK Marriott . i\ Popplewell . — — assignee, v. Shaw V. Smallwood V. Smealey V. Smith V. Veal V. Wall . V. WeUs Johnstone v. Friedman Joliffe V. Mundy . Jones V. Barnes — — V. Edwards V. Eldridge V. Evans V. Fowler V. Fowler V. Gibson • V, Howell . V. Hunter V. Jacobs V. Lewis V. Nicholls and another V. Owen — ^— V. Owen V. Powell V. Pritchard V. Roberts V. Roberts . — —V. Robinson . — — V. Shepherd Reporters. 2 Bro. & B. 698 1 CM. &R. 647 3 Dowl. 207 1 C. M. & R. CA1 4 Law J., Ex. 31 1 Dowl. 127 . 1 Mee. & W. 149 4 Dowl. 762 . 4 Dowl. 63 1 Dowl. 367 . 2 Dowl. 343 2 C. & J. 544 . 12 Law J., C. P. 112 2 Dowl. 588 1 Dowl. 526 . 1 Dowl. 421 . 7 Dowl. 487 . 4 Dowl. 315. 2 C.& M. 428 2 Dowl. 352 2 M. & G. 432 4 Mee. & W. 502 . 8 Law J., Ex. 100 2 Mee. &W. 313 , 3 Mee. & W. 218 7 Law J., Ex. 70 . 11 Law J.,C. P. 192 6 Mee. & W. 420 8 Dowl. 425 . 4 Dowl. 232 . 4 Dowl. 232 . 5 B, & C. 768 8 D. & R. 592 4 Dowl. 176 . 1 Dowl. 462 2 Dowl. 442 . 2 C. & J. 207 1 Law J., Ex. 77 MS. Exch. H.T. 1847 2 C. & M. 340 2 Dowl. 265. 8 Car. & P. 395 10 Law J., Ex. 320 14 Law J., Ex. 42 2 C. & J. 476 1 Dowl. 565 ILaw J., Ex. 181 2 C. & J. 476 . 6 Dowl. 483 2 Tyrw. 383 , 2 Dowl. 374 2 Dowl. G98 . 11 Mee. & W. 758 12 Law J., 415 3 Dowl. 421 . This Digsst. Page. Attorney . . 39 |- Abatement of suit 1 I Nisi Prius . .186 Outlawry . 213 > Abatement of suit 1 Plea in abatement 247 Warrant of attorney 290 Costs . . . 79 Plea in abatement 246 Interpleader . 137 Writ . . . 307 Distringas . 103 Judgment, nonsuit 158 Writ of trial . 328 Bail ... 62 I Writ of trial . 330 Judgment, nonsuit 171 >-New trial . .183 Writ of trial . 328 Amendment 19 Affidavit 9 Distringas . 101 Particulars demand 217 Particulars . . 220 Judgment, nonsuit 162 Writ of trial Warrant of attorney Costs . 330 293 76 Costs . 74 New trial . 178 Demurrer 95 Costs . . 84 Interpleader . 138 Notice of action . 201 ■ Pleading 232 J- Staying proceedings 269 Award . . 49 Judgment, nonsuit 169 Costs . . 82 Demurrer . 94 }> Execution . .126 Stay proceedings 269 TABLE OF CASES. xlix Cases. Jones V. Smith V. "Williams . V. Williams Jordan v. Farr V. Hunt Joseph V. Buxton V. Perry Jourdain v. Johnson Joynes v. CoUinson . V. Collinson Jupp V. Grayson Reporters. rSMee. &W. 526 . 17 Law J., Ex. 143 2 Dowl. & L. 247 . 12 Law J., Q. B. 295 r2Ald. &E. 437 . 1,4 N. & M. 347 . 3 Dowl. 6fi6 . 2 Dowl. & L. 835 3 Dowl. 699 . [4 Dowl. 534 . tsTyrw. 524 J 2 Dowl. & L. 449 . llSMee. & W. 558 13 Mee. & W. 560 jSTyrw. 150 1 1 C. M. cScR. 523. This Digest. Page. Plea in abatement 246 Certificate Sherifif . 64 260 ■ Warrant of attorney 290 Attorney . . 42 Judgment . .155 Jury . . 171 ■Pleading . . 231 • Costs Motion - Arbitration 73 176 24 K. Kay V. Gennell . , 2 Dowl. & L. 21 . . Rules , 257 Kealy v. Cartwright 11 Jur. 378 . Rules 253 Kearns, in re llJur. 521 . Attorney . 40 Keat V. Goldstein . r 1 M. & Rv. 305 t7B. &C. 525 , JBail 63 Keene v. Deeble 3B. &C.491 . Arrest 29 Kelly V. Flint . 5 Dowl. 293 . Pleading . 241 Kemp V. Blane . 1 Dowl. & L. 885 . Judgment . 149 V. Matthew 8 Scott, 399 . Warrant of attorney 285 V. Powell . . 8 Moore, 273 . Declaration 89 V. Fyson 3 Dowl. 265 . Pleading . 243 Kendrickj;, Davis . 5 Dowl. 693 . Award 52 Kennedy v. Gad r 1 M. & M. 225 . tsCar. &P. 376 j» Nisi Prius 187 Kenney v. Hutchinson 4 Jur. 106 . . Affidavit 15 V. Hutchinson J 6 Mee. &W. 134 . L9 Law J., Ex. 60. 1 Order . 208 Kenrick v. Phillipps . . 7 Mee. & W. 415 . Arbitration . 25 1-. Phillipps r7 Mee. & W. 415 [10 Law J., Ex. 226 . (•Award 50 Kent I'. Poole . 7 Dowl. 572 . Costs . 76 Kenyon v. Wakes . f 2 Mee. & W. 764 . 1 6 Dowl. 105 V Particulars demand 218 ^rot'het'.^'''' ^^^°°^°'^}l2 Law J., Q. B. 323 Taxation . 273 Kerbyu. Jenkins . 2 Tyrw. 499 . Cogaovit 71 Kerr v. Miller , 8 Dowl. 322 . Writ 306 Kerrison v. Wallingborough 5 Dowl. 564 . Attorney 45 Key V. Goodwin . . 1 M. & Sc. 620 Judgment 146 Kidd V. Walker 2 B. & Ad. 705 . . Pleading 231 Kilburn v. Kilbum . 14 Law J., Ex. 160 . Award 48 Kilmer v. Bailey 5 Mee. & W. 382 . Particulars demand 218 V. Bailey . . 5 Mee. & W. 385 . Pleading . 234 Kinder & another v.Dunford 10 Law J., Q. B. 131 . Pleading . 225 King V. Birch . 11 Law J., Q. B. 183 . Writ . d 316 TABLE OF CASES. Cases. Kinij V. Hopkins V. Jones . r. Monkhouse V. Myers . -v. Simraonds Sc V. Skeffington V. Skeffington and another Queen (in error) V. Tress V. Walford Kingston v. Groom Ivinnear v. Keane Kinning, ex-parte Kirby v. EUier V. Siggers . V. Snowdnn Kirk V. Almond . • V. Clark . • ?i. Dalby Kitchen v. Brooks • V. Brooks . Knight V. Brown V. Brown . V. Coleby V. Smith V. Warren — — V. Woore Knowles v. Lynch Krell V. Jay . anotl The Reporters. r 13 M. & W. 685 1 2 Dowl. fc L. 6;i7 J 2 Law J., Ex. 1 tic. &M. 71 3 Law J., Ex. 35 5 Dowl. *i86 14 Law J., Q. B.248 1 Dowl. 086 1 C. & M. 3(i3 1 C. & M. 363 This Digest. Page. { 302 1 14 Law J., Q. B. 2 Dowl. & L, 734 1 Dowl. & L. 790 11 Mee. & W. 826 3 Dowl. 154 11 Jur. 451, 456 r2C. &M. 215 . 12 Dowl. 219 . J4 M. & vSc. 481 . ts Dowl. 659 . 4 Dowl. 191 . 2 Law J., Ex. 13 4 Dowl. 363 . 6 Mee. & W. 636 5 Mee. & W. 522 . 5 Mee. & W. 522 2 M. & S. 797 . . 1 Dowl. 730 . 5 Mee. & W. 274 [7 Scott, N. R. 896 't 1 Dowl. & L. 912 7 Dowl. 663 J 6 Law J., C. P. 135 • L3 Bing. N. C. 3 4 Tyrw. 477 . 4 Dowl. 600 . 297 201 298 153 124 89 302 125 253 82 324 95 131 269 240 Particulars demand 220 134 138 302 91 153 274 122 315 ■Judgment, nonsuit 167 Writ , . 304 ■ Taxation . . 274 Inferior court . 132 Warrant of attorney 289 ^Writ . I Notice of trial . Writ Judgment . Writ of error . j- Declaration Writ . Error, writ of Record . . Costs . Writ of trial . Demurrer . Inferior court . i- Stay proceedings , 1- Pleading . Interpleader Interpleader Writ . Declaration Judgment . Taxation . Ejectment . Writ Lace V. Adarason Lacey v. Umbers Ladbroke and ors. i>. Williams ^ o Lakin v. Watson Lambe v. Smythe Lambert v. Hale V. Heath ■ and othersi'.Hutchinson — — — V. Lyddon • , gent., one, &c.2;.Parnell 12 Mee. & W. 807 8 Jur. 409 3 Dowl. 732 5 Law J., Q. B.4G . 3 Dowl. & L. 368 2 Dowl. 633 . \ 4 Tyrw. 839 J 10 Jur. 394 tl5 Law J., Ex.287 9 C. &P. 506 . 15 Law J., Ex. 296 10 Law J., C. P. 213 ]G Law J., Q. B. 34 15 Law J., Q. B. 55 >■ Rules . Demurrer . i- Judgment, nonsuit I Writ . I Pleading . Nisi Prius New trial . Arbitration . New trial . Judgment 258 93 165 301 245 193 179 24 181 6 TABLE OF CASES. Cases. Lament v. Crook Lampert v. Lyddon . Lancaster v. Castle Lander v. Gordon . Lane v. Isaacs V. Newman V. Parsons . Langdale v. Maclean Langston v. Wetberell Lanman v. Audley, Lord . Larchen v. Willan Last V. Benton Laughton v, Taylor Law V. Thompson Lawlor v. Clements Lawrence v. Clark V. Hodgson V. Potts . Laws and another V. Bott . Lawson v. Case Layman v. Gowan Layton v. Mason Laythorp v. Bryant Leaf w. Butt . Lee V. Armstrong V. Kendall V. Sellwood Lees V. Fry V. Hoffstadt Ledgard v. Thomps Legg V. Evans Reporters. This Digest. Page. Legge V. Boyd . Leigh V. Bender Lemon v. Hopson Lenniker v. Barr Leslie v. Disney . Lettice v. Sawyer Leneham v. Gould Levi V. Claggett re Mee. & W. 615 ■\9 Law J., Ex.253 11 Jur. 44 . 8 Jur. 848 . f 7 Mee. & W. 218 1 10 Law J., Ex. 39 . 3 Dowl. 652 . r 10 Jur. 925 1 1 B. C. Rep. 93 J 6 Law J., C. P. 26 • L5 Dowl. 359 10 Jur. G42 r 14 Law J., Ex. 229 '\U Mee. tk W. 104 2 Mee. & \V. 535 J 4 Mee. & W. 351 •17 Dowl. 11 . 2 Marsh. 4 78 . f 8 Dowl. 776 • L 6 Mee. & W. 695 15 Law J., Ex. 334 . 8 Dowl. (188 . r 15 Law J., Ex. 40 1 14 Mee. & W. 250 . 1 Y. & J. 16 6 C. & P. 428 . ssignee | -^jg_ ^^^j^^ ^ rj, jg^ 4 Dowl. 40 . 10 Law J., C. P. 95 6 Dowl. 275 . 1 Scott, 338 . 1 Car. & M.451 . , 9 Mee. & W. 14 Jb Law J., K. B. 19 "[ 5 N. & M. 340 . 9 Price, 322 1 T. & G. 1084 , 9 C. & P. 599 . 12 Law J., Ex. 229 r 6 Mee. & W. 36 19 Law J., Ex. 102 r 9 Dowl. 39 • |_2 Scott, N. S. 4 Dowl. 201 . 6 Dowl. 795 [2 C. & J. 473 \1 Dowl. 503 r 1 C. M. & R. 578 '15 Tyrw. 181 {I 4 Jur. 74 4 Dowl. 371 Dowl. 322 Mee. & W. ■ Witness 296 New trial . . 182 Rules . . 253 [■ Stay proceedings . 267 Affidavit . ■ Irregularity . • Pleading . Demurrer ■Bail . Judgment . Bail . Pleading ^ Inferior court 547 15 142 226 95 61 145 60 232 129 Particulars demand 217 Writ of trial . 330 [-Notice to produce . 203 Award . . 46 Attorney . . 43 . Judgment, nonsuit 160 Affidavit . . 4 Award . . .54 Declaration . . 89 Declaration . 90 , Notice to produce . 204 Judgment, nonsuit 167 I Costs ... 79 . Bail ... 59 Cognovit . . 69 . Nisi Prius . . 193 Cognovit . . 70 ^Execution . . 128 I Pleading . . 229 Pleading . . 243 . Judgment, nonsuit 164 I Costs ... 80 I Arrest . . 29 Judgment, nonsuit 164 . New trial . . 177 1 Outlawry . . 214 Hi TABLE OF CASES. Cases. Levi r. Buncombe V. Perralt and another Le Vieux v. Berkeley . Levy V. Boxeius • V. Coyle V. Coyle . V. Champneys V. Webb . Lewin v. Edwards . Lewin and anor. v. Holbrook Lewis V. Betteridge V. Brown . • v. Davison V. Eickey . V. Gompertz . V. Holding V. Howell r. Kensington, Lord . V. Kerr . V. Newton V. Primrose V. Shelly . i\ Tankerville, Earl of V. Wells . V. Woolrych Liddell v. Cranch . . Lidster v. Borrow Lilley v. Gompertz . V. Johnson . Limbert v. Hayward Lindus v. Pound Lindley v, Girdler . Lines v. Cbetwoode Linley v. Bates V. Ponton . Lloyd V. Berkovitz . V. Jones V. Kent . V. Nicholas . Reporters. J 1 C. M. & R. 737 . t^Dowl. 447 r 15 Law J., C. P. 4 . I 2 M. G. & Sc. 345 /2 Donl. & L. 31 1 13 Law J., Q. B. 244 4 Law J., K. B. 69 . 12 Law J., Q. B. 294 12 Law J., Q. B. 295 2 Dowl. 454 J 15 Law J., Q. B. 407 [lOJur. 980 . 9 Mee. & W. 720 12 Law J., Ex. 2G7 . llJur. 490 3 Dowl. 300 . J 1 C. M. & R. 655 . [3 Dowl. 272 . r2C&M. 321 . \4 Tyrw. 157 . 6 Dowl. 7 10 Law J., C. P. 204 J 6 Ad. & E. 7G9 16 Law J., K. B. 182 15 Law J., C.P. 100 r2M. &^V. 226 . . 15 Dowl. 327, 447 J 2 CM. &R. 732 . I I T. & G. 72 6 Q. B. 285 . 7 Taunt. 146 12 Law J., Ex.234 7 C. & P. 221 . 3 Dowl. G92 5 Dowl. 662 . 9 Ad. & E. 654 . 1 Dowl. 376 . r2 Mee. & W. 386 1 5 Dowl. 606 . r 13 Mee. & W. 481 1 2 Dowl. & L. 406 . 2 Mee. & W. 240 5 Dowl. 459 . 1 Dowl. & L. 699 ri Law J., Ex. 79 . [2 Tyrw. 177 2C.& J. (559 . f 1 Gale, 158 , \5 Tyrw. 818 . MS. Exch. M.T. 1846 5 Dowl. 161 5 Dowl. 125 . r4 Bing. N. C. 633 [7 Law J., C. P. 259 This Digest. Page^ > Attachment . . 3 I Writ , . 308 I Affidavit . .14 Writ . . 312 Affidavit . . 9 Motion . . 175 Sheriff . . 262 >- Demurrer . 95 Judgment . . 152 4 Award . . 58 Judgment, nonsuit 169 Judgment • . 153 I Outlawry . 213 > Interpleader . 138 Warrant of attorney 285 Interpleader . 140 "I Admission of docu- j ments . . 3 Warrant of attorney 283 I Attorney . . 39 I Writ . Attorney Attorney Attorney Nisi Prius Affidavit Appearance Notice of action Distringas Writ of trial . 330 . 298 44 . 39 44 187, 192 5 . 21 198 103 Distringas . 101 Demurrer . . 93 Warrant of attorney 283 11 280 Judgment, nonsuit 167 New trial , .178 Writ . . 298 Taxation . .270 Rule . . 258 I Affidavit . Changing venue TABLE OF CASES. liH Cases. Lomax r. Kilpia . Long V. Comber . V. Douglas Lonsdale, Lord, v. Church Lord, in re V. Cross V. Hope . V. Wardle . V. Wardle Loutreuil v. Phillippe , Lovell V. Walker Lover v. Tolmin Lovewell v. Curtis Lowe V. Steel Luard and another v. Butcher and another Lucas V. London Dock Com-" pany Ludlow Corporation v. Tyler Lumley v, Dubourg V. Thompson Luxford V. Groombridge . Lydal V. Biddle . Lyddon v. Coombes Lyng V. Sutton . Lvttleton v. Cross . Reporters. 16 Law J., Ex. 23 4 East, 348 4 B. & Ad. 545 . 2 T. R. 388 . 2 Scott, 131 fSDowl. 4 [2Ad. &E. 81 . 5 Tyrw. 487 . '6 Do wl. 174 3 Scott, 398 . 5 Law J., C.P. 259 " 10 Jur. 757 IB.C. Rep. 87 . " 9 Mee. & W. 299 5 Dowl. 388 5 Mee.& W. 158 ■ 15 Mee. & W. 380 10 Jur. 737 '' 15 Law J., C. P. 187 2C.B. 858 . -4B. &Ad. 378 . 7 C. & P. 537 . 14 Mee. & W. 295 3 Dowl. & L. 80 ' 3 Mee. &. W. 632 12 Law J., Q. B, 99 5 Dowl. 244 . 5 Dowl. 560 3 Scott, 187 5 Dowl. 39 4 B. & C. 117 . This Digest. Page Affidavit . . 7 Plea in abatement 247 Consolidation of actions . , 73 Stay proceedings . 266 Attorney . . 40 f Execution Motion > New trial Term's notice I Affidavit Pleading . Bail . Pauper . > Pleading >■ Interpleader Interpleader Irregularity , Affidavit Interpleader Writ of trial - Award Pleading 126 175 183 279 4 246 62 222 232 139 139 Pleading . . 244 ■Judgment nonsuit 168 143 3 138 329 53 245 M. M'Alpin V. Gregory . M'Alpine v. Mangnall M'Arthur v. Campbell M'Donald v. Maclaren V. Mortlock M'Dougall V. Nichols M'Gregor r. Horsfall . Jl'Intyret;. Miller and others V. Somers . M'Kay (Jas.) and others, in re • Macclesfield (Earl) ». Bradley Mayor, &c. of, v. Gee 1 M. G. & Sc. 299 . 15 Law J., Ex. Ch. 298 ■5B. &Ad. 518 • . 2 Ad. &. E. 52 . . "ll Mee. & W. 465 '2 Dowl. & L. 963 . 14 Law J., Q. B. 244 . "5N. &M. 367 . ■ 3 Mee. & W. 320 7 Law J., Ex. 71 14 Law J., Ex. 180 14 Mee. & W. 102 . 2 Dowl. & L. 896 'l Dowl. & L. 206 . . 12 Law J., Q.B. 337 . 7 Mee. & W. 570 . 14 Law J., Ex. 44 Distringas . . 101 Bill of exceptions . 64 |- Award . . 55 Writ . . .318 • Writ ^ Affidavit Costs . Discontinuance d3 310 209 Orders Consolidation of ac- tions . . 72 Pleading . . 242 ■Judgment, nonsuit 165 16 77 98 liv TABLE OF CASES. Cases. Macber v. Billing Mackay, in re, and others Macpherson r. Robinsoa Maddeley v. Batty . Maddocks v. Phillips . Maffy V. Godwin Magnay and anr. v. Monger Maitland v. Mazeredo . Mander, in re . Manley v. Bray . Mann v. Duncombe V. Williamson Manners, in re Manning v. Lennox Manser v. Heaver . Mansfield v. Brearey . Manvill v. Manvill . Maple V. Woodgate Marchant «'. Frankia . Margetson ?;. Tugghe Marks v. Ridgway Marriott v. Stanley . Marryatt v. Clapp Marshall v. Forster . V. Whiteside Marston v. Hall . Martin v. Colvill V. Granger V. Martin . V, Stone . Martindale v. Falkner others Maslon v. Carlon Mason v. Newland V. Nicholls V. Redshaw V. Riddle V. Whiteliouse Masterman v. Malin Masters v. Carter V. Davy . V. Farris V. Lewis Matchett v. Parkes Reporters. 1 C. M. & R. 577 4 Law J., Ex. 16 12 Law J., Q. B. 337 1 Doug. 217 3 Dowl. 205 5 N. & M. 370 1 N. & M. 101 . 12 Law J., Q. B. 306 C M. & Sc. 139 . 6 Q. B, 867 . llJur. 521 . 8 Jur. 539 7 Mee. & W. 145 5 Mee. & W. 278 12 Moore, 133 3 B. & Ad. 295 1 Ad. & E. 347 3 N. & M. 471 1 Dowl. 544 10 Jur. 839 . 1 B. C. Rep. 79 2 Gale & D. 473 5 Dowl. 9 , MS.Exch.T.T. 1847 2 Scott, N. S. 60 9 Dowl. 59 1 Dowl. 701 ■ 2 DowL 228 . 2 C. & M. 213 . 4 Dowl. 766 . 1 M. & W. 188 . "5 Dowl. 292 . 2 Mee. & W. 60 . 2 DowL 694 . 2 Dowl. & L. 268 8 Scott, N. S. 367 ■ 2 Scott, 389 2 Bing. N. S. 240 6 Jur. 372 . '10 Jur. 161 15 Law J., C.P. 91 4 Dowl. 477 . 9 Car. & P. 575 . 14 Mee. & W, 118 2 Dowl. 595 rs Dowl. 207 , 1 5 M. & W. 513 / G Scott, 246 . L 4 Bing. 692 7 Bing. 435 . 4 Dowl. 577 2 Dowl. N. S. 340 1 C.B. 715 . 2 M. & Rob. 59 9 Mee. & W. 767 This Digest. Paob. I Pleading . . 236 Office copy . . 206 Attorney . . 45 Judgment, nonsuit 170 Orders . . 209 Abatement of suit 1 Sheriff . . 264 Writ of error . 124 Outlawry . . 213 Arbitration . 25 Judgment . . 147 Judgment, nonsuit 164 Affidavit . .10 Demurrer . . 96 Judgment . .149 I Writ of trial . 330 Warrant of attorney 286 > Appearance . . 23 Writ . . 314 Writ . . .298 Interpleader . 140 I Certificate . . 64 Pleading . . 232 I Judgment, nonsuit 157 > Pleading V Writ of error Rules Writ 231 124 255 308 ^Judgment, nonsuit 159 Judgment, nonsuit 162 J- Attorney Affidavit . Pleading Judgment Interpleader • Cognovit ■ Attachment , 44 7 231 155 135 69 34 Costs . . 78 Affidavit . . 7 Writ of trial . 325 Motion . . 177 Distringas juratores 99 Taxation . 272 TABLE OF CASES. Iv Cases. Matthews v. Smith . Matthewson v. Baistow Maunder v. CoUett • Mavor v. Spalding May V. Tarn . V. Pike ■ V. Husband May berry v. Mansfield Mayor of Bath v. Pinch Carmarthen v. Evans . Devizes, &c. v. Clark Doncaster v. Coe Maidenhead v. Great 1 Reporters. 2 Y. & J. 426 . f 15 Law J., Q.B. 40 • t 3 Dowl. & L. 327 . 16 Law J., C. P. 17 f 13 Law J., Q.B. 185 •\l Dowl. & L. 878 . / 12 Mee. & W. 730 1 1 Dowl. &. L. 997 . J 4 M. & W. 197 . •16 Dowl. 667 . J 9 Law J., Ex. 34 1 5 Mee. & W. 493 . . 16 Law J., Q.B. 102 . 4 Scott, 299 . . 11 Law J., Ex. 394 3 Ad. & E. 506 3 Taun. 404 Western Railway ' Maidenhead v. Western Railway Meager v. Smith Mellish V. Richardson Mendell v. Tyrrell . Mengens v. Perry Mercer v. Whall Meredith v. Rogers V. Stocker Middeton i\ Woods Miles V. Bough V. Bough . Grea V. Williams V. Williams Miley v. Walls . V. Walls Miller v. Knox , V. ?v'liller V. Spurrs . Milligan v. Thomas Mills V. Boultbee V. Gossett V. Oddy Milton V. Griffiths Mitford V. Findea Mondel v. Steele 13 Law J., Q.B. 129 IsQ. B. 597 . r4B, &Ad. 673 . \2 Law J., K. B. 108 9 Bing. 125 9 Mee. & W. 217 / 10 Jur. 742 . lib Law J., Ex. 307 14 Law J., Q.B. 267 7 Dowl. 596 . f4 Dowl. 499 \Tyrw. & G. 76 / 6 Mee. & W. 136 [8 Dowl. 170 . 3 Dowl. & L. 105 J 10 Jur. 390 1 3 Dowl. Si L. 105 T 1- I,-. . *n • * iI3 B. & Ad. 145 . ». Inhabitants or BnstoH , t g,™ j K B 193 11 Jur. 36 16 Law J., Q.B 1 Dowl. 648 . 2 Law J., Ex. 170 4 Bing. 574 2 Scott, 117 2 M. cSc Sc. 730 2 C. M.&R. 756 4 Dowl. 373 . 1 Dowl. N. S. 1 Scott, 313 6 C. & P. 728 56 07 769 \6 Jur. 463 J 10 Law J., Ex. 473 \8 Mee. & W. 511 8 M. & W. 640 . This Digest. Nonsuit Affidavit Orders . ■Writ - Taxation Page. . 196 . 3 210 304 276 45 [■ Attorney . [-Judgment, nonsuit 158 45 35 178 282 Attorney . Attachment New trial . Verdict . Jury . Affidavit Motions I Pleading Writ of error Attachment 172 10 175 232 123 33 226 J. Pleading . Nisi Prius . .189 Interpleader . 141 I Judgment, nonsuit 164 I Pleading . 240 Demurrer . 97 I Judgment . 147 I Staying proceedings 266 Demurrer . . 97 Judgment . . 145 Pleading , 228 Pleading . . 229 Attachment . 38 Affidavit . . 7 Judgment . 145 I Writ of trial . 330 . 100 301 . 191 Distringas Writ Nisi Prius I Judgment, nonsuit 162 ■ Pleading Changing venue 239 279 hi TABLE OF CASES. Cases. Reporters. This Digest. Page. Monck V. Shenstone . . 3 Scott, 6G1 . Pleading . 230 Montford v. Bond . 2 Dowl. 403 . Judgment, nonsuit 169 Moody V. Dick . . 4 N. & M. 11 . New trial 180 V. Morgan 7 Dowl. 144 . Distringas . 101 Moon V. Robinson ("14 Law J., 310 \14 Mee. & W. 427 V Judgment 152 V. Robinson 14 Mee. & W. 427 Motion 176 V, Thynne . 3 Dowl. 153 . Distringas 102 Moore v. Magau MS. Exch. M. T. 1846 Writ ' . 301 V. Magan 10 Law J., Ex.57 . Writ 314 V. Butlin n Law J.,Q. B. 20 \ 7 Ad. & E. 595 ■ I Pleading 235 Moreau v. Hicks 4 N. & M. 563 Inferior court 129 Morewood v. Wilkes Car. & P. 144 , . Interpleader . 140 Morgan v. Eastwick . 7 Dowl. 543 . Pauper 225 V. Harris r2C. &J. 461 . 11 Dowl. 570 . ■ V Particulars demanc 218 V. Harris . r2C. &J. 461 [1 Law J., Ex. 143 ' |- Nonsuit 196 V. Pedlar 4 Dowl. 645 . Bail 63 V. Thomas 9 Jur., Ex. 92 Award 49 • V. Thorn 10 Law J., Exch. 12. ) . Prochein amy 251 Morison v. Harmer 5 Scott, 411 , Costs 85 Morland v. Chitty . 1 Dowl. 520 . Interpleader 136 Moriey v. Hall . 2 Dowl. 494 . Cognovit 71 Morpbett, in re 10 Jur. 546 . Arbitration 24 and another, in re . 14 Law J., Q.B. 251 ) . Arbitration 27 and another, in re 14 Law J., Q.B. 25£ ) . Award 58 Morris, ex parte 1 Mee. & W. 510 Recognizance 252 V. Coles 2 Dowl. 79 . Writ . 309 V. Davies 4 Dowl. 317 . Outlawry . 211 V. Davies . 4 Dowl. 317 . Writ 313 r. Evans . 1 Dowl. 657 Amendment 18 V. Evans 1 DowL 657 . Declaration 90 V. Hannen 1 Car. & M. 29 Notice to produce 204 V. Jones and others 10 Law J., Q.B. 165 . Particulars demand 221 V. Lotan 1 M. & R. 233 Nisi Prius . 187 V. Smith r2C. M. &R. 314 [4 Dowl. 198 . * ^Declaration 86 V. Smith /4 Law J., Ex. 184 \2 CM. & R. 120 •jWrit 297 Morrish v. Murray and anr. 13 Law J., Ex. 261 . Sheriff . 263 Morrison, ex parte . 8 Dowl. 94 Attorney 46 V. Manley ri Dowl. N. S. 773 [6 Jur. 838 ■ |- Distringas , 103 Mortimer v. Peggitt 4 Ad. cSi E. 363, note . Prisoner . 250 V. Preedy 3 Mee. & W. 602 . . Writ of trial 326 Morton v. Grey 9 B. & C. 544 , Declaration 87 Moscati V. Lawson 4 Ad. & E. .331 . . Jury 173 V. Lawson 4 Ad. & E. 331 Nisi Prius 187 Moss V. James . 1 Dowl. & L. 897 . Writ 314 II. Smith J 8 Dowl. 537 . 1 1 Scott, N. S. 25 |- Particulars demand 218 Mould V. Slurphy 2 Dowl. 54 Pleading 226 Moulston V. Wire and anr. . 1 Dowl. & L. 527 . Declaration 87 TABLE OF CASES. Ivii Cases. Mudie r. Newman Mullins V. Bishop . V. Cox and another v. Ford Mnntz V. Forster Mnppin v. Gillatt . Murdock r. Taylor Murphy v. Donlaa Murray v. SiWer V. Silver :Mussell V. Faithfull . Musselbrook v. Dunkia Mutton and anr. v. Young Myatt V. Green Reporters. 2 Dowl. 639 . 2 Dowl. 557 7 Dowl. 660 . 11 Jur. 370 '6 Man. & G. 1017 . 7 Scott, N. R. 898 4 Dowl. 190 . ■ 8 Scott, 604 9 Law J., C.P. 183 5B. &C. 178 . 3 Dowl. & L. 26 14 Law J., C.P. 236 14 Law J., C.P. 236 11 Jur. 270 . ■2M. &Sc. 740 . 2 Law J., C.P. 71 . 11 Jur. 414, C. P. 13Mee. iJtW. 377 . This Digest. Page. Rules . . 255 Judgment, nonsuit 170 Demurrer . • 95 Notice of trial . 202 - Nisi Prius . 186 Writ of trial . 329 . 141 197 • Judgment, nonsuit 161 Discontinuance . 97 Judgment, nonsuit 160 •Award . . 55 Interpleader . 137 Particulars demand 216 >- Interpleader Nonsuit N. Nanny v. Kenrick Nash V. Swinburn Nash V. Swinburne Naters v. Sutton Natham v. Budge Nathan v. Cohen V. Cohen . Neal V. Holden V. Holden . r. M'Kenzie V. Richardson Neale v. Postlethwayte V. Snowdon V. Snoulten V. Snoulten Needbam v. Bristow r. Law Negrete v. Martorell Nelson v. Slack . Newberry v. Colvin . Newman v. Hickman Newton r. Belcher . — — V. Blunt and wife v. Boodle others and 1 Dowl. 609 4 Scott, N. R. 326 I Dowl. N. S. 190 II Law J., C. P. 56 10 Jur. 617. 3 Dowl. 207 . 3 Dowl. 370 1 Har. & W. 107 3 Dowl. 380 3 Dowl. 493 . 3 Dowl. 493 1 C. M. & R. 61 2 Dowl. 89 . 10 Law J., Q. B. 134 15 Law J., C. P. 22 3 Dowl. & L. 422 15 Law J., C. P. 48 3 Dowl. & L. 422 2 C. B. 322 . 4 Scott, N. R. 773 4 Man. & G. 662 12 Law J., Exch. 31 6 Man. & G. 756 1 Dowl. & L. 735 2 M. &Sc. 820 2 Dowl. 415 9 Dowl. 546 . 16 Law J., Q. B. 37 10 Jur. 1030 . 16 Law J., C. P. 121 11 Jur. 148 16 Law J., C. P. 135 Demurrer I Affidavit . Notice of trial Demurrer . Nisi Prius I Affidavit . Affidavit Attorney . Particulars . Pleading . Pleading Judgment . [-Declaration . j Bail . Prisoner 95 15 203 95 186 3 6 46 222 229 238 154 88 61 248 259 230 V Rules Pleading J- Judgment, nonsuit 168 Taxation . .271 New trial . . 182 Distringas . . 100 Y Stay proceeding Stay proceedings [■ Bill of exceptions 266 266 64 Iviii TABLE OF CASES. Cases. Newton and wife r. Boodle and others ■ V. Chambers . V. Harland IK Holfoid and others . V. Peacock V. Rowe V. Rowe . V. Rowe and another • and others v. Stewart . V. Wilmot, bart. Ney V. Husband . Nias V. Spratley Nichols V. Forshall . V. Williams Nicholls V. V/ilson V. Stockbridge . Nicholson v. Leman . V. Milne . Nickalls v. Warren Nightingale v. Barnard Noel V. Davis Nohro, ex parte Nolleken v. Severn Nordenstrom v. Pitt Norman v. Winter V. Winter Normanby v. Jones Norris v. Smith North V. Ingamells Norton v. Lord Melbourne V. M'Intosh Norwich, the Inhabitants of, in re . Notts V. Curtis . Nugee V. M'Donell . Nunn V. Curtis . Reporters. riG Law J., C. P. 135 til Jur. 148 . 1 Dowl. & L. 869 6 Dowl. C44 . 2 Dowl. & L. 554 1 Dowl. G77 . 2 Dowl. & L. 815 7 Man. & G. 329 16 Law J., a B. 146 15 Law J., Q. B. 384 10 Law J., Ex. 476 5 M. & W. 493 . 4 B. & C. 386 . 15 Law J., Q. B. 203 11 Law J., Q. B. 190 11 Mee. & W. 106 11 Law J., C. P. 292 J 3 Law J., Ex. 133 [2 Dowl. 296 1 Har. & W. 211 2 Dowl & L. 549 . 4 Bing. 169 J 7 Law J., Ex.287 14 Mee. & W. 136 1 B. & C. 267 . 2 C. & J. 333 . 14 Law J., Ex. 150 7 Scott, 251 . /5 Bing. N. S. 279 i 7 Dowl. 304 , 3 Dowl. & L. 143 2 P. & D. 353 . 9 Mee. cSc W. 249 r5Law J.,C. P. 343 [3 Bing. N. C. 67 7 Dowl. 529 . Ill Price, 766 r2C. &J. 345 \2Tyrw. 307 . 3 Dowl. 570 r 4 Dowl. 729 . 1 1 T. & G. 500 . This Digest. Page. ■ Term's notice 279 45 Attorney Costs . . 78 . Pleading . . 234 Inferior court . 129 Certificate . . 67 Costs . . 84 Execution. . 128 1 Plea in abatement . 245 Oyer . . 216 Judgment, nonsuit 165 Pleading . . 226 . Notice of trial . 201 . Taxation . .272 Attorney . . 44 . Venue . . 279 I Writ . , 304 Judgment . .163 . Award . . 53 Inferior Courts . 129 ■ I Pleading . 235 . Affidavit , 11 Pleading . , 243 . Writ of error . 125 Outlawry . .211 ■ I Writ . . 310 , Orders . . 208 Notice of action . 198 . Declaration . 87 I Witness . . 293 Demurrer . 95 Recognizance >■ Changing venue Pleading . |- Irregularity . 252 279 226 144 O. O'Brien v. Clement Oliver v. Price . V. Woodruffe . O'Neill V. Coghlan Orme v. Crockford . r 3 Dovd. & L. 676 1 15 Law J., Ex. 244 3 Dowl. 261 . J 7 Dowl. 166 \4 Mee. & W. 650 2 Dowl. & L. 5 . 1 C. & P. 537 . Pleading . . 229 Affidavit . 5 Cognovit . 69 Affidavit 4 Certificate . 68 TABLE OF CASES. lix Cases. Osborne v. Pennell V. Thompson . Ostler V. Bower . Otho, King of Greece, v. Wright Ouchterlony v. Gibson Owen V. Scales Oxenden v. Cropper . Reporters. ri Bing. N. C. 320 1 1 Scott, 277 . / 9 C. & P. 337 [2 M. &R. 254 4 Dowl. 605 1 6 Dowl. 12 12 Law J., C. P. 94 10 Mee. & W. 657 4 Dowl. 574 Irregularity Attorney . Costs . 227 This Digest. Page >- Pleading > Nisi Prius Interpleader . Costs 189 136 75 144 46 75 Packham v. Newman . V. Newman Page V. Doughty V. Hemp V. Jadis V. Pearce V. Shenstone V. South . Paget V. Thompson Paine v. Emery Palmer v. Cohen V. Fiestel V. Grand Junction Rail way V. Reiffeinstein Parberry v. Newnham . Pardee v. Terret Parker v. Burgess V. Gill . V. Linnett V. Perry . V. Riley V. Serle . Parks V. Adge Parmeter v. Reed Parsons v. Pitcher Partington, ex parte Partridge v. Salter V. Walbank V. Walbank Pascall V. liorsley . Pasley v. Millard Pattrick v. Richards f 1 C. M. & R. 584 ■|_3 Dowl. 165 . 1 C. M. & R. 585 . 4 Scott, N. S. 523 4 Dowl. 203 . 6 Law J., C. P. 229 [10 Law J., Ex. 434 18 Mee. & W. 677 , 10 Jur. 1009 2 Dowl. & L. 108 . 3 Bing. 609 . 2 C. M. & R. 304 , 2 B. & Ad. 966 . 2 Dowl. 507 . \4 Mee. & W. 749 J7 Dowl. 732 . 1 M. & G. 94 J 7 Mee. & M^ 378 1 10 Law J., Ex. 169 12 Law J., C. P. 143 3 Nev. & M. 3'J 10 Jur. 1096 2 Dowl. 562 . MS. Exch. E. T. 1S46 3 Mee. & W. 230 6 Dowl. 334 . r 1 C. & M. 429 . \ 1 Dowl. 643 . 7 Dowl. 545 r4 Bing. 306 . \6 Dowl. 432 2 Dowl. & L. 650 5 Dowl. 68 2 Mee. & W. 893 / 1 Mee. & W. 316 [5 Law J., Ex. 167 3 Car. & P. 372 1 Tyrw. 160 15 Law J., Q. B. 204 ■ Writ of trial 326 W>it of trial . 329 Judgment, nonsuit 160 Distringas . 103 Warrant of attorney 291 -Certificate . , 65 Pleading . 245 Warrant of attorney 291 Appearance 23 Oyer . 215 Abatement of suit 1 Non pros. 195 Notice of action . 200 Pleading . 234 i- Award Affidavit . 47 13 Attachment 31 Demurrer 95 Interpleader 134 Declaration 88 Demurrer . 94 Taxation 273 1" Amendment Writ 18 307 > Pleading 232 Prisoner . 250 Judgment, nonsuit 160 Distringas jwrit . Pleading . 102 303 244 New trial . 181 Rules 255 Ix TABLE OF CASES. Cases. Reporters. This Digest. P AGE. Patorni v. Campbell J 12 Mee. & W. 277 "1 1 Dowl. & L. 307 . - Interpleader 134 Patterson v. Busby . [6 Law J., Ex. 16 . • t^Mee. &W. 521 . 1 Writ 302 Paxton V. Great Nort England Railway h of hs Law J., Q.B. 270 • tlOJur. 430 > Award 50 V. Popham 10 East, 366 . Judgment, nonsuit 161 r. Wylie . 10 Law J., C. P. 292 Costs 79 Payne i\ Shenston . 16 Law J., Q. B. 61 Pleading 245 Peacock v. Harris . 1 N. & P. 240 . New trial 182 V. Bell . 1 Saunders, 75 . Inferior courts 131 Peake i\ Screech . MS. T. T. 1845 . Demurrer 94 Pearce v. Chaplin . J 10 Jur. 966 • 116 Law J., Q.B. 49 > Orders 210 V. Swain JlOLaw J., Ex. 144 . • I 7 Mee. & W. 543 |- Distringas 103 Pearl v. Hughes . 2 M. G. & S. 346 . Writ of trial 325 Pearson v. Archbold 11 Mee. & W. 108 Award 53 V. Coles . 1 M. & R. 206 Nisi Prius . 191 Pease i\ Wells 8 Dowl. 626 Cognovit 69 Peddie v. Pratt . . 7 Scott, N. S. 894 . Notice of trial 202 Peirce ?'. Derry 12 Law J., Q. B. 276 Judgment 144 t\ Williams . 1 T. & G. 220 , Judgment, nonsuit 169 Pell p. Jackson 2 Dowl. 455 , Writ 302 Pelly V. Rose . 1 Dowl. & L. 601 Pleading 231 Pembrey v. Jones . 11 Jur. 589 Taxation 277 Pender, in re . 10 Jur. 891 Attorney 44 Penny r. Thomas 6 Law J., C. P. 55 . Distringas 101 Pepper v. Whalley . 5 N. cSc M, 437 . Plea in abatement 247 Pepperell r. Burrell r 1 C. M. & R. 372 . • t 2 Dowl. 674 [■ Pleading 243 Percival v. Connell . 5 Scott, 91 ; 6 Dowl. 6£ Writ of trial . 325 V. Cook . 7 Da-:, r.00 . Attorney 39 1\ Cook . 5 Mee. & W. 293 Plea in abatement 247 r. Hodley 3 Tyrw. 217 . Affidavit . 5 Perkins v. Adcock / 3 Dowl. & L. 270 •115 Law J., Ex. 7 . 1 Costs 75 — — V. Benton 3 Tyrw. 51 . . Interpleader . 135 Perrin v. West . J 4 Law J., K. B. 232 •JSN. &M. 291 . 1 Affidavit . 11 Perring v. Kymer . /4Nev. &M. 477 . • 1 1 Har. & W. 20 . 1 Rules . 256 V. Turner . . 3 Dowl. 15 Writ . 314 Perry v. Dunn 12 Law J., Q. B. 351 Arbitration 24 V. Patchett . 1 C. M. & R. 87 Writ . 299 V. Turner r2C. &J. 89 ■ 12 Tyrw. 128 . I Judgment 150 Perse v. Browning / 1 Mee. & W. 362 • 1 1 T. cV G. 864 1 Affidavit . 10 Peters v. Croft 6 Scott, 897 . Nolle pros. 194 V. Sheehan . 12 Law J., Ex. 177 . Taxation 274 Petrie v. Cullen J 2 Dowl. & L. 604 • t 8 Scott, N. S. 705 . > Judgment, nonsuit 168 Petty V. Walker and o thers . MS. Exch. H. T. 1845 Certificate 65 Peyton and another v. Wood 15 Law J., Ex. 347 . Distringas . 105 TABLE OF CASES. Ixi Cases. Phelps V. Keily . . Philby V. Ikey Philipps V. Warren , V. Warren . Phillips V. Birch V. Canterbury, Lord, , V. Dance . . 1'. Eardley . V. Ensell V. Gibbs V. Hatfield V. Hutchinson ■ V. Smith Phillipsou V. Earl of Egre- mont .... Philpot V. Thompson . Phipps and anr. v. Lothian V. Sothem Picard v. Featherstone Pickering v. Carnell Pickmau v. Collis Pierce v. Derry Pierrepoint v. Brewer . Pigou V. Drummond Piggott V. Kemp V. Killick Pike V. Davis Pilbrow V. Pilbrow's Atmo- spheric Railway Company Pilcher v. Woods Pilmore v. Hood Pim V. Grazebrook . and another v. Reid and others .... Pinches v. Harvey . Pinkney v. Brett Pinney v. Richardson Pitcher v. King , V. Roberts V. Roberts . V. Sheriff of Monmouth Pitt, ex parte . . V, Combs — — V. Combs . Reporters. 11 Law J., C. P. 99 2 Dowl. 222 J 14 Mee. & W. 730 1 3 Dowl. & L. 301 Jli Mee. & W. 7:iO 13 Dow!. & L. 301 11 Law J., C. P. 297 1 Dowl. & L. 283 /■I M. iS: R. 584 , 19 B. & C. 769 . reScott. fi02 lArn. 275; 2 Jur. 518 Jl C. M. & R. 374 t4Tvrw. 812 r 10 Jur. 971 1 16 Law J., Ex. 43 10 Law J., Ex. 33 3 Dowl. 20 . 12 Law J., Q. B. 187 1 14 Law J., Q. B. 25 2 Dowl. & L. 18 9 Law J., Ex. 88 . 8 Dowl. 208 . 4 Bing. 39 8 Dowl. 300 . 3 Dowl. 429 4 Q. B. 635 . / 10 Jur. Ex. 79 . [15 Law J., Ex. 81 . 1 Bing. N. S. 354 2 Dowl. 20 4 Dowl. 287 G Mee. & W. 546 . 1 16 Law J., C. P. 11 4 Dowl. 329 . 8 Dowl. 21 . r2C. B. 429 . 1 3 Dowl. & L. 454 1 Dowl. & L. 512 . '12 Law J., C. P. 299 10 Law J., a B. 31G 11 Law J., Q. B. 9 11 Jur. 413, C. P. . 2 Dowl. & L. 755 12 LawJ., Q. B. 178 12 LawJ., Q. B. 178 2 Marsh. 152 . 5 B. & Ad. 107 . 2 Dowl. 439 . 3N. &M. 212 . 5 B. & Ad. 1078 4 N. & M. 535 . This Digest. Page. 172 136 181 185 315 263 Jury Interpleader |-New trial V New trial . Writ Sheriff [.Judgment, nonsuit 162 l Judgment, nonsuit 157 I Writ . . 309 y Warrant of attorney 2S3 New trial . 180 Affidavit . . 7 Nul tiel record 205 Writ . . .320 Costs . . "G Pleading . .241 Particulars . 221 Changing venue . 279 Warrant of attorney 287 Writ . . " 298 Judgment . . 150 I Bail . . 63 Outlawry . .213 New trial . 178 Warrant of attorney 289 Motion . . 177 Writ 303 Orders . 207 Affidavit . 16 Judgment 151 Verdict . 232 Warrant of at toniey288 Verdict . 2Si Distringas 104 Attachment . 36 Writ 312 Pauper 22'.i Attorney 39 Attorney . 40 Attachment 38 Bail . . 62 } Bail e TABLE OF CASES. Cases. Pitt V. Combs V. Evans Pizani v. Lawson Piatt r. Green ' V. Hall . Plews, in re Plock V. Pacheco Plomer v. Ball V. Ball . Plummer v. Lee . Plunkett V. Buchannan Pocock «'. Cockerton . V. Fry V. Mason . Poensgen v. Chanter Pomfrey v. Cottrell Pontifex v. Jolly Ponsford v, O'Conner Poole V. Coates — — V. Grantham r. Hobbs V. Pembrey ?'. Pembrey V. Salter Pope V. Mann V. Mann — — V. Mann V. Redfearne Porint'. Buckingham, Duke Porter v. Cooper Potter ?). Nicholson V. Williams Potts V. Hirst . Poweler v. Lock . Powell V. Ancell V. Howard V. James . V. Sonnett . Pratt V. Delarue V. Hawkins Preedy r. Lovell . V. M'Farlane Price V, Hayman Reporters. r4 N. & M. 535. t ] Har. & W. 13 . 2 Dowl. 226 . 5 Scott, 418 2 Dowl. 21 (; . J 2 Mee. & W. 391 \ 5 Dowl. 583 . 6 Q. B. 845 9 Mee. 8i W. 342 5 Ad. & E. 82,H . 5 Ad. & E. 823 [5 Dowl. 755 I 2 Mee. & W. 495 j 3 B. cSc C. 736 . [5 Dowl. 625 . J 8 Law J., Ex. 3 . 17 Dowl. 21 8 Dowl. 12(; J 4 Law J., C. P. 60 I I Bing. N. S. 245 6 Scott, 300 . 1 Dowl. & L. 845 9 C. & P. 202 . 5 Mee. & W. (i73 3 Scott, 768 . 2 Dowl. & L. 622 8 Dowl. 113 . 1 Dowl. 693 1 Dowl. 693 . J 1 Law J., Ex. 65 1 2 C. & J. 85 . J 2 Mee. & W. 881 16 Law J., Ex. 204 . 2 Mee. & W. 881 2 Mee. & W. 881 . 4 Burr. 2027 . of, 8 Moore, 584 J 4 Law J., Ex. 192 •12 C. M. & R. 232 8 Mee. & W. 294 6 Jiir. 508 . 6 Man. & G. 934 [4 N. & M. 852 . '14 Ad. i^ E. 415 10 Law J., C. P. 317 . 6 Scott, 826 1 Dowl. & L. 415 . 3 Bing. 381: 1 Dowl 10 Mee. ^ W. 509 . 15 Mee. & W. 399 4 Dowl. 671 J 2 Dowl. 216 . • 1 4 Tyrw. 93 . r 4 xMee. & W. 8 [7 Law J., Ex. 297 This Digest. Page, 56 > Office copies Motion Costs Witness - Rules Arbitration Writ Arrest Prisoner . 200 176 76 295 257 28 313 31 250 243 > Pleading [outlawry . 214 J- Affidavit . . 8 Warrant of attorney 287 jwrit . Discontinuance Costs . Nisi Prius Witness Oyer Costa Cognovit Plea in abatement Affidavit 1 Pleading I Affidavit . 313 99 83 189 294 215 83 69 247 228 15 88 226 39 18 82 69 32 98 Declaration Pleading . Attorney Amendment \- Costs . Cognovit Attachment Discontinuance I Interpleader . 134 Liferior court . 130 Warrant of attorney 289 Costs ... 81 Writ of error . 124 Pauper . . 225 Writ . . ;i05 Rules . 2.59, 257 • Judgment, nonsuit 157 ■Affidavit . . 15 TABLE OF CASES. Ixiii Cases. Price V. Bowea i\ Huxley . V. Quarrell V. Williams Prickett r>. Gratrex . Prior V. Smith Pritchard v. M'Gill . V. Nelson . Probert v. Phillips ?'. Rogers Procter v. Lainson Proudfoot V. Boile . Proudstone v. Tremlow Prudhomme v. Fraser . Pryme v. Brown Pryor and anr. v, Swaine Pylie V. Stephen Pyne, in re Pullea V. Seymour . Reporters. 2 Dowl. 1 2 C. & M. 211 2 Dowl. 231 . 11 Law J.. Q. B. 84 5 Dowl. 160 . 15 Law J., M. C. 145 10 Jur. 566 6 Dowl. 299 2 Mee. & W. 280 11 Jur. 375 2 Mee. & W. 40 6 Law J., Ex. 10 3 Dowl. 170 . 7 C. & P. 629 . 3 Dowl. & L. 524 15 Mee. & W. 198 I Law J., Ex. 175 4N. &M. 512 , II Law J., C. P. 227 13 Law J., Q. B., 214 6 Mee. & W. 813 9 Law J., Ex. 216 . 1 Dowl. & L. 703 5 DowL 164 . This Digest. Page. {5. Distringas - Writ 100 310 Special case . 270 Special jury . 172 i- Notice of action . 200 Attorney . 39 Inferior court • 128 Particulars, demand 219 [-Taxation. . 274 Outlawry . .214 Witness . . 295 > Award . . 54 Nonsuit . . 197 Ejectment . 122 Certiticate . . 68 Affidavit . . 16 Particulars, demand 220 Attachment Amendment 32 18 Queen, the, v. Dobson . -l V. East Lancashire Rail- 1 way Company . . J V. Inhabitants of Bios- J ham . . . . \ V. Inhab. of Norbury V. Justs. of Denbighshire V. King and others V. Mayor, &c. of Litch- 1 field . . . .; Mayor, &c. of Malmes- 1 bury .... J V. Missen . V. Sheriff of Middlesex in Walker v. Blackwall Rail- way Company V. Sydserff V. The Lord Mayor, &c. 1 of London . . . / Quelle V. Boucher . Quested v. Callis 15 Law J., Q. B. 376 . 10 Jur. 905 . 16 Law J., Q. B. 127 . 2 Dowl. & L. 168 . 14 Law J., Q. B. 13 . 15 Law J., Q. B. 264 15 Law J., Q.. \i. 335 14 Law J., Q. B. 86 . 10 Law J., Q. B. 172 11 Law J., Q. B. 318 11 Law J., Q. B. 189 5 Q. B. Rep. 365 14 Law J., a B. 44 16 Law J., Q. B. 185 1 Scott, 283; 3 Dowl. 107 10 Mee. & W. 18 Attachment 32 Motion . 176 Affidavit 14 Affidavit . 14 Inferior courts 132 Error, writ of 125 Affidavit . 5 Costs . 85 Affidavit . 4 Costs . . 79 Recognizance . 252 Attorney . 39 Affidavit . 4 Attorney . 42 Ramadge v. Ryan Ramm v. Dunoombe R. 9 Bing. 333 2 Dowl. & L New trial Judgment 184 153 Ixiv TABLE OF CASES. Cases. Reporters. This Digest. Page. 15 Law J., Q. B. 264 Prisoner r4Dowl. 403 t2 C. M. & R. 634 . 1 Hodges, 173 . . Sweet and another 10 Law J., C. P. 132 J 2 Dowl. & L. 624 t8 Scott, N. R. 716 8C.&P.321;2M.&R.70 S Dowl. 412 Ramsilen, James, in re ■ V. ]\Iaugham . Rand v. Vaughan Randall Rastrick v. Beckwith . Rawlins v. Desborough Rawson v. Moss Rawsthorne v. Arnold . V. Gandell V. Yv''ilkinson and others Ray V. Dow V. Good . • I'. Sharp Rayment v. Smith . Raynes v. Jones Reay v. Youde Redil V. Lucock 250 re B. &c. 029 [9 D. & R. 556 {I Reed v. Spurr Reeder v. Whip Rees V. Longwell Reeve v. Underhill V. Underhill . Reeves v. Barraud . Regina v. Barton V. Burgess ».Cornv,'all,iateSheriftof 1'. Gameson V. Insolvent Ccmmissrs V. Jameson V. Johnson V. Jones V. Jones . V. Keen V. Manchester Rail. Co. zj. Manchester and Leeds \ Railway Company . V. Mattey V. Mayor of Litchfield . V. Missen V. Pickles . V. Sheriff of Herts . V. Sheriff of Kent V. Sheriff of Lancashire V. Sheriff of Middlesex 4 V. Sheriff of Middlesex 15 Mee. & W. 304 4 M. & S. 256 . 5 Dowl. 310 . 5 Dowl. 295 4 Dowl. 354 . 1 Dowl. & L. 106 9 Mee. & W. 104 2 Mee. & W. 188 2 C. & M. 337 . 3 Law J., Ex. 16 5 Dowl. 330 , 2 Mee. & W. 76 5 Dowl. 576 8 Law J., Q. B. 128 1 M. & R. 440 OC. &P. 773 7 Scott, 281 . 9 Dowl. 1021 3 N. & P. 366 . Dowl. GOO W. 603 Ex. 322 3 N. & P. 543 . 790 . W. 003 & Mer. 231 Ad. & E., N. S. 335 8 Dowl. 80 8 Dowl. 307 11 Jur. 308 . 3 N. & P. 439 . 8 Ad. & E. 413 G Dowl. 515 10 Law J., Q. B. 172 11 Law J., Q. B. 189 12 Law J., Q.B. 40 9 Dowl. 916 2 Car. & K. 197 4 Jur. 538 . 8 Law J., C. P. 39 . 6 Law. J., Ex. 9 15 Mee. & W. 146 15 Law J., Ex. 93 J 6 Mee. & ' \9 Law J., 3 N. & P. J 8 Dowl. 7( ■ t 6 Mee. & r 1 Dn t5 Ad ^Affidavit . Judgment Prisoner > Attorney Nisi Prius Distringas > Award Pleading Sheriff . Outlawry Judgment, nonsuit Costs of the day . Warrant of attorney Execution Distringas > Costs of the day . 1- Pleading Warrant of attorney Outlawry . Nisi Prius Nisi Prius . Interpleader Motions Prisoner . Sheriff [■ Costs Outlawry , i- Attachment I Attachment Affidavits Affidavits Affidavits Affidavits Motioa . Sheriff Affidavit Affidavit Motion . Sheriff Arrest Orders I Affidavit . I Sheriff 151 249 40 188 101 55 245 264 211 159 80 288 125 105 81 236 289 211 187 191 139 175 248 260 77 212 34 34 10 17 5 176 264 5 4 175 264 29 208 262 TABLE OF CASES. Ixr Cases. Reporters. This Digest. 'age. Reginald. Sheriff of OxfordsL . 2 Car. & K. 200 . . Arrest 29 V. Sheriff of Surrey . 8 Dowl. 510 . Affidavit 8 V. Walworth . lOJur. 967 Affidavit . 12 V. Wood 7 Mee, & W. 571 . Witness 294 Reid V. Ford J 2 Dowl. N. S. 944 . • [12 Law J., Q. B. 249 V Appearance 20 Rendill v. Bailey 2 Dowl. 11.3 . Judgment, nonsuit 160 Rennie and another v. Beres ford and others - ri5 Mee. & W. 78 .1 15 Law J., Ex. 78 . |- Particulars deman I 219 13 f X 1 fi, / -^ Dowl. & L. 464 . V. Beresford and others-^ ,q j -^ j Rules . 259 V. Bruce j2 Dowl. lSc L. 946 [9 Jur. 597 . ■ 1 Rules 256 Retallick v. Hawkes . . 1 Mee. & W. 573 . Particulars, demar id 217 Revell ?;. Browne 2 M. & P. 18 . ISonsuit 197 Rex V. Armstrong f 2 C. M. & R. 205 . •[4 Law J., Ex. 167 \ Outlawry 211 V. Buchanan r I C. & M. 125 12 Law J., Ex. 12 V Outlawry 215 V. Bullock J 1 Mee. cSc W. 726 'll Tyrw. &G. 998 V Recognizance 252 V. Burn 7Ad. &E. 190 Affidavit , 14 V. Byrne . 6 Dowl. 36 . . Affidavit 6,14 V. Calvert r2 C. & M. 189 12 Dowl. 276 ^Attachment 31 ■ V. Carlisle . 2 B. & Ad. 362 Writ of error . 123 V. Cockshaw 2N. &M. 378 . . Affidavit 14 V. Cooke . 1 M'Clel. & Y. 197 . Outlawry 213 V. Corporation of Green pound "|7T. R. 699 Amendment 17 V. Dolby 1 Car. & K. 238 Jury 173 V. Grant /SB. & Ad. 1081 •JSN. &M. 106 ^New trial . 178 V. Hare 13 East, 189 . Bail 59 V. Harrison . 6 T. R. 60 Affidavit 11 V. Hankins 1 M'Clel. & Y. 27 • Recognizance . 252 V. Hill . 1 C. & P. 667 . Jury 172 V. Hind riC. &J. 389 . 11 Tyrw. 347 . > Outlawry 211 V. Justices of CarnarvoE 5 N. & M. 364 . . Affidavit . 3 f. Justices of Yorkshire i 6 B. & C. 152 . Abatement of suit 2 V. Justices of Warwick shire |5 Dowl. 382 Affidavit 6,11 V. Morley 4 Ad. & E. 840 Attachment 38 V. Packwood 2 Dowl. 571 Attachment . 33 — — V. Perry 5 T. R. 453 . Jury . 172 V. Powell 1 Mee. cSc W. 321 . Outlawry 211 V. Price r2C. &M. 212 1 2 Dowl. 233 _ 1 Orders 208 V. Robinson 6 T. R. 642 . Affidavit . 11 V. Robinson 2 C. M. & R. 334 . Slienff 263 *'. Sheriff of Devon 3 Dowl. 10 Sheriff' . 263 V. Sheriff of Lincoln- shire |5 Law J., Ex. 42 . Attachment c 3 36 Ixvi TABLE OF CASES. Cases. Rex V. Sheriff of Middlesex V. SheriflT of Middlesex ?". Sheriff of Middlesex r. Sheriff of ^Middlesex r. Sheriff of Surrey V. Spragffs V. Tipping r. Archbishop of York Reynolds «. Barford r. Bearing V. Newton V. Pocock . r. Sherwood Rhodesaud auother^.Thomas and otliers Riccard v. Kingdon Rice r. Linsted r. Linsted Richard v. Isaac Richards v. Dispraile . V. Hanley ■ V. Middleton — - V. Stuart Richardson, in re V. Daley V. Daley V. Fell f. Fell V. Kensitt V. Peto Richmond r. Bowdidge . < Rickards v. Patterson Ricketts v. Barman Riddell r. Pateman Ridgwav r. Ewbank Ridley v. Tindall Rippling V. Watts Rippon V. Dawson Rising V. Dolphin Rivis V Watson Roberts v. Brown . V. Croft V. CuttiJl — r. Foulkes Reporters. r 5 B. & C. 389 . [8 D. & R. 149 . J 2 Law J., Ex. 235 1 1 C. cSc M. 48G . 4 Dowl. 7G5 . 5 Dowl. 245 J2 C. M.& R. G98 LIT. &G. 32 2 N. cV M. 678 1 C. cS: P. 6(;8 ri Ad. & E. 394 1 3 N. & M. 453 . 2 Dowl. & L. 327 4 Doug. 181 1 Gale & D. 153 4 Mee. & W. 371 8 Dowl. 183 . 2 Dowl. & L. 553 15 Law J., Q. B., 2G9 7 Dowl. 153 (') Scott, 895 r 1 C. M. & R. 136 \ 4 Tyrw. 863 . 9 Mee. & W. 459 . lOJur.,1057 . r 1 Man. & G. 53 t4Jur. 340 JlOBing. 319 t3M.& Sc. 774 llJur. 309 7 Dowl. 25 4 Mee. & W. 384 4 Dowl. 10 4 Dowl. 10 13 Law J., C. P. 17 9 Dowl. 73 4 Dowl. 749, Ex. 1 Mee. & W. 40 8 Mee. & W. 313 10 Law J., Ex.272 4 Dowl. 578 2 C. M. & R. 30 2M. &R. 217 . 7 Ad. & E. 134 . 4 Dowl. 290 . J 7 Scott, 145 1_8 Law J., C.P. 102 8 Dowl. 309 9 Law J., Ex. 100 6 C.&P. 757 7 C. & P. 376 4 Dowl. 204 1 B. C. Rep. 205 ■{ This Digest. Page. I Affidavit . 8 I Irregularity . 143 Affidavit Attachment 14 35 > Attachment . 36 Attachment . 33 Jury . , 172 J- Amendment . 17 Sheriff . . 2C3 Pleading . 235 Prisoner . . 250 Arrest . . 29 Staying proceedings 26'9 Judgment, nonsuit 162 Award . . 55 Cognovit . . 69 W'arrant of attorney 285 I Affidavit . . 7 Writ . . .316 Writ . . 306 i- Judgment, nonsuit 159 Writ Attachment Appearance Cognovit Pleading Nisi Prius Taxation Judgment, nonsuit 170 ^Attachment . 31 300 33 21 71 234 191 273 ■ Orders Nonsuit Irregularity Nisi Prius Pleading Declaration - Writ Warrant of attorney 285 Discontinuance 99 Certificate . 68 Nonsuit . .196 Judgment . 154 Stay proceedings 267 209 196 144 189 234 86 300 TABLE OF CASES. Ixvii Cases. Roberts v. Howard . V. Hughes V, Spurr V. Taylor V. Wedderburn V. Williams » Robins v. Richards V. Bridge Robinson v. Brooksbank and anr. v. Crewdson V. Day . ■ V. Evrington V. Gardner r. Gardner V. Powell V. Robinsoa V. Stoddart V. Whitehead V. Yewens Rock & anr. v. Adam & anr Rodwell V. Chapman Roe V. Cobham Rogers v. Brodrip ?;. Humphreys V. Kennay V. Smith V. Vandercom Rolfe V. Brown ?'. Paget V. Swann . Roscoe V. Hardman Rose V. McGregor {? and anr. v. Port Talbot "1 Reporters. 9 Mee. & W. 838 Dowl. N. S. 667 . J 7 Mee. & W. 399 •\10 Law J., Ex. 337 . 3 Dowl. 551 r 8 Scott, N. S. 399 . • I 7 Man. & G. 659 J 1 Bing. N. S. 4 [4 M. & Sc. 488 . J 5 Law J., M. C. 23 . ■"[4 Dowl. 486 1 Dowl. 378 . J 3 Mee. & W. 114 •\6 Dowl. 140 . 4 Dowl. 395 15 Law J., C. P. 152 2 N. & M. 670 . . 9 Dowl. 107 . 7 Dowl. 716 . 7 Dowl. 716 . 9 Law J., Ex. 17 J 3 Dowl. & L. 134 . 'tlO Jur. 356 . 5 Dowl. 266 . 6 Dowl. 292 J 5 IWee. & W. 149 . ' \ 7 Dowl. 377 . 15 Law J.. C. P. 192 r2LawJ. Ex. 4 1 1 C. & M. 70 . 6 Sc. 146; 6 Dowl. 628 9 D. & R. 194 J 4 Ad. & E. 299 '{5 Law J., K. B. 65 15 Law J., Q. B. 381 riAd. &E. 772 . ■t3N. &M. 760 J 15 Law J., Q.. B. 313 1 10 Jur. 1035 1 Hodges, 27 . 1 B. C. Rep. 78 . . I Mee. & W. 305 5 Dowl. 157 ri2 Mee. cS: W. 517 . '\l Dowl. & L. 583 . This Digest. Page. Company ■ V. Tombleson Ross V. Clifton V. Clifton and others V. Jacques ■ V. Jacques 15 Law J., Q.B.316 3 Dowl. 49 E. 631 . 1033 . 11 Ad. & E.631 . 10 Law J., Ex.306 8 Mee. & W. 135 . J 11 Ad. Declaratiou Award ^ Changing venue Costs Distr ingas 299 254 125 17 257 308 127 91 56 279 80 100 20 > Appearance Computation of time 72 Writ . . 298 1 Admission of docu- J ments. . . 2 Attachment . Zii I Affidavit . . 4 I- Plea in abatement 246 Demurrer Writ 94 299 Sabine v. Field Salkeld, in re Saltash, Corporation Jackman Salter v. Pomford • V. Slade Sandell v. Bennett Sanderson v. Westley Sandford v. Alcock . 1 C. & M. 4GG . 10 Law J., Q. B. 22 of, v.\l Dowl. & L. 851 . J 13 Law J., Q. B. 105 . 8 Dowl. 435 rs N. &M. 717 • 1 1 Ad. & E. 608 . J 4 N. & M. 89 . [1 Ad. & E. 204 . J G Mee. & W. 98 '18 Dowl. 412 / 10 Mee. & W. 689 • 1 2 DowL N. S. 463 Writ . . 319 Arbitration . 26 Consolidation of ac- tions . 73 Pleading . .237 •Writ of error . 123 Demurrer . . 93 •Warrant of attorney 285 •Amendment . 19 TABLE OF CASES. Ixix Cases. Sandys, clerk, v. Beverley, Mayor, &c., of V. Holiler Saunders and ors., assignees, V. Jones V. McGowran Saunderson v. Bourn . Saunderson's bail Sautell?;. Gillard Savage v. Ashwia V. Lipscombe . Saville v. Farnham, Lord Savory, assignee v. Chapman Sawyer, in re . V. Hodges and another V. Thompson Sayer v. Ducroix . Scales V. Cheese V. Sargeson Scarborough v. Evans Scheller v. Cohen Schlesinger v. Flersheim Schofield V. Huggins Scholes i\ Hilton Scott V. Cogger V. Lewis r. Lewis V. Lewis V. Marshall V. Watson Seabrook v. Cave Sealy V. Hearne Seatun v. Benedict V. Heap Seccombe v. Babb Seely v. Powers Sell V. Carter Sellman v. Boom Semple v. Turner Serle v. Barrett Sewell V. Dale Shackel v. Ranger Shanley v. Colwell . Sharman v. Stevenson Reporters. 1 Dowl. & L. 641 . 6 Dowl. 274 15 Law J., Q. B. 273 12 Mee. & W. 221 1 Dowl. and L. 405 2 Dowl. 338 1 Chit. R. 676 5 Dowl. 620 . 4 Mee. & W. 530 . 8 Law J., Ex. 43 5 Dowl. 385 . 2 M. & R. 216 . !) Law J., Q. B. 186 11 Law J., Q. B. 234 10 Law .T.,Ex. 470 1 Dowl. N. S. 16 9 M. & \V. 248 1 Dowl. N. S. 449 16 Law J., Q. B. 120 1 Dowl. & L, 657 4 Dowl. 231 1 Dowl. 9 10 Law J., Ex. 99 2 Dowl. & L. 737 3 Dowl. 427 11 Law J., Ex. 332 3 Dowl. 212 . 2 C. M. & R. 289 4 Dowl. 259 . 7 C. .Si p. 347 7 C. & P. 347 . 2Tvrw. 176;2C.&J.60 3 Dowl. t^ L. 208 1 C. B. 826 . 2 Dowl. (/Jl 3 Dowl. 196 , 5Bing. 31;2M.&P. 67 5 Dowl. 247 6 Mee. & W. 129 9 Law J., Ex. 65 3 Dowl. 372 . 2 Dowl. 245 8 Mee. & W. 552 9 Law J., Ex. 101 2 Ad. & E. 82 . 4 N. & M. 200 . 8 Dowl. 309 . 3 Mee. & W. 409 6 Mee. & W. 543 9 Law J., Ex. 176 2 C. M. & R. 75 3 Dowl. 709 This Digest. Page. Judgment, nonsuit 165 . 73 . 152 Costs Judgment . - Judgment Appearance Affidavit . Pleading - Award Taxation New trial Attorney Affidavit 149 22 6 227 49 273 184 43 5 ■Judgment, nonsuit 162 -Judgment, nonsuit 168 Special jury Amendment Interpleader Distringas Affidavit Attachment Judgment Attachment Judgment > Interpleader Cognovit Nisi Prius Costs > Pleading Judgment, n Writ Pleading Writ - Award Jury Award Taxation Judgment -Pleading Pleading Pleading - Cognovit - Pleading 172 20 135 104 9 37 154 37 154 136 71 188 80 229 onsuit 159 299 232 318 51 173 55 278 152 234 227 239 71 231 Ixx TABLE OF CASES. Cases. Sharp V. Ashby Sharpe v. Johnson Shaw V. Alvanley, Lord . V. Oates V. Perkin V. Robinson Shearunan v. M'Knight Shepherd v. Halls . V. Bishop of Chester Shephard v. Shum . Sherlock v. Bernard Sherman v. Tinsley Sheriffs, Gresley Sherran v. Marshall and anr. Sherry v. Oka Sherwin v. Swindall Shield V. Quick V. Quick Shipton V. Shipton . Shirer v. Walker Shirley v. Jacobs ShoreJick v. Gilbard . Short V. Arnal ?'. Campbell Smith Shortridge v. Young Shrewsbury, Earl of, v. Hay craft Shrimpton v. Carter Shuttleworth v. Clark . V. Cocker Siboni v. Kirkman Siggers v. Sansom . Silk V. Humphrey . Silverside v. Tapping . Simmons v. King Simons, in re —— V. Wood • Simpson v. Clayton Reporters. J 12 Mee. & W. 732 . 1 1 Dowl. & L. 998 J2 Bing. N. S. 246 . L 4 Dowl. 324 2 Bing. 325 4 Dowl. 720 11 Law J., Q. B. 52 8 D. & K. 423 5 Dowl. 572 . 2 Dowl. 453 . r4 M. & P. 130 16 Bing. 437 . J 2 C. cS: J.632 . 1 2 Tyrw. 742 J8 Bing. 21 te M. & P. 58 4 Scott, 286 . / 4 Ad. & E. 338 15 Law J., K. B. 7 . 1 Dowl. & L. 689 3 Dowl. 349 . ri3 Law J., Ex. 237 \ 1 Dowl. & L. 999 . 10 Law J., Ex.270 J 10 Law J., Ex. 270 . \ 8 Mee. & W. 289 1 Dowl. 518 . J 2 Man. & G. 917 . t 3 Scott, N. R. 235 . J 4 Law J., C. P. 61 \ 1 Scott, 67 8 Dowl. 296 MS. Ex. M. T. 1845 3 Dowl. 487 . 8 Dowl. 584 1 DowL & L. 416 . 12 Mee. & W. 5 . This Digest. Page. 276 { 1 6 Bing. 194 >- Taxation I Affidavit . Writ . Writ of trial Affidavit Affidavit Writ . Judgment |- Nonsuit \ Writ 318 328 5 7 311 151 197 299 3 Dowl. 648 . 4 Dowl. 561 . 10 Law J., C. P. 1 9 Dowl. 76 3 Mee. & W. 46 . 6 Dowl. 98 3 M. & Sc. 194 . 7C.&P. 14 . 9 Law J., C. P. 176 2 Dowl. & L. 786 14 Law J., Q. B. 195 14 Law J., Q. B. 41 2 Dowl. & L. 500. 13 Law J.,Q. B. 49 2 Bing. N. S. 467 2 Scott, 291 . ^ New trial . . 182 Writ of trial . 325 I Order . . 209 J Warrant of attorney 291 ^ Award . . 55 ^Certificate . 67 Judgment . . 153 I Pleading . 237 Warrant of attorney 29 1 I Affidavit . . 3 ■Writ . . Costs Rules Bail Attachment 312 80 253 59 31 V Interpleader . 1 38 Writ . . .309 Affidavit . . 7 Interpleader . 141 64 > Certificate 239 • Pleading Writ . . 301 Nisi Prius . . 191 Declaration . 92 ■ Amendment 19 •Taxation , 272 New trial . .178 I Nonsuit . . 197 TAELE OF CASES. ixxi Cases. Simpson r. Graves, Lord V. Heath r. Hurdis V. Ramsay Sims V. Prosser . Sinclair v. Sinclair . Singleton v. Johnson . Skelton v. Seward Skinfield v. Laxton Slaney v. Sidney and othe Slatter Painter Smart v. Johnson V. Rayner SmeHley r. Christie Smith, ex parte J. C. in re . 's Bail . V. Blake V. Bond . V. Campbell V. Clarke V. Clench p. Collins V. Crump V. Davies V. Davis V. Dickenson r. Goff . V. Good r. Hardy r. Hearn V. Hopper and r. Jennings V. Johnson . V. Jones V. King V. Martin V. Mee V. Nesbitt others il Reporters. 2 Dowl. 10 .T Mee. & W. 631 . 2 Mee. & W. 84 5 Dowl. ;i04 . 1 Dav. & Mer. 396 [a Ad. &E., N. S. 37 f 15 Mee. & W. 151 [15 Law J., Ex. 199 13 Mee. & W. 640 f 11 Law J., Ex. 88 [ 9 Mee. & W. 67 1 Dowl. 411 4 M. & So. 187 f a Dowl. & L. 250 1^ 14 Mee. & W. 800 [8 Mee. & W. 672 [10 Law J., Ex. 476 f 3 Mee. & W. 69 . [6 Dowl 90 6 C. & P. 721 2 Dowl. 152 , 2 Dowl. 607 2 Dowl & L. 376 3 M. & P. 242 8 Dowl. 130 . f 13 Mee. & W. 594 [ 2 Dowl. & L. 460 6 Dowl. 728 . f 3 Law J., Ex. 63 [2 Dowl. 218. 2 Ad. &E.,N. S. S3 3 Dowl. 100. 1 Dowl. 519 . 7 C. & P. 307 f 9 Dowl. 50 [2 Scott, X. S. 189 ri Dowl. & L. 155 [12 Law J., Q. B. 31 f 1 4 Mee. & \V. 264 [3 Dowl. & L. 47 . 2 Dowl. 398 . r 8 Bing. 435 . [1 Law J., C. P. 130 f 1 Dowl. & L. 992 [12 Mee. & W. 715 16 L-iw J., Q. B. 93 9 Dowl. 155. 2 C. M. & R. 350 4 Dowl. 208 . 6 Jur. 1090 2 Dowl. 751 11 Law J., Ex. 129 13 Law J., C. P. 121 2 M. G. & So. 286 3 Dowl. & L. 420 . This Digest. Page. Distringas . .100 Writ . . 320 • Certificate Writ Affidavit . Witness Affidavit i- Pleading 1 Pleading •Writ Rules Pleading 67 298 7 296 9 Witness . . 295 Term's notice . 278 j- Interpleader . 134 I Notice of trial . 201 I Writ . . . 314 Nisi Prius . 191 Judgment, nonsuit 158 Affidavit . 13 Taxation . .271 Writ of error . 123 Arbitration . 27 ^Attachment , 35 Rules . . 254 i- Judgment . 154 Demurrer . . 94 Rules . . 259 Writ . . 296 Nisi Prius . 188 |- Judgment, nonsuit 164 jwrit . . 316 i- Arbitration . 27 Distringas 100 228 938 Notice of action . 199 Over . . , 215 314 . 254 234 Nisi Prius . .193 Writ . . 318 Rules 258 TABLE OF CASES. Cases. vSmith V. Pennell . V. Pole . V. Rathbone V. Sandys V. Smith V. Sparrow . V. Spicer V. Temperley ?'. Truscott V. Wedderburne t\ Wheeler Smithhurst v. Taylo V. Taylor Snelling v. Chennells Snook V. Mattocks V. Mattocks V. Smith . — — V. Southwood Snow V. Keith V. Stevens . Solly V. Langford V. Langford . V. Richardson V. Richardson Solomon v. Nainby . Somers ii. Holt South Eastern Railway Short Soward ?». Leggatt . Sowter V. Dunston V. Hitchcock . Sparding and anr. v. Greville Spence v. Eastern Counties' Railway Spenceley v. Shoals V. Shoals Spencer y. Barough Spiller V. Benson Spivy V. Webster . Spong V. Tucker Spooner r. Payne Spragg V. Willis Spurr V. Rayner . Stacey w. Jeffreys Stackwood i\ Dunn Staley v. Bedwell V. Long . Stalworth v. Inns ,.| •{ Reporters. 2 Dowl. 654 . 5 Mee. & W. 4!)1 . 7 Dowl. 792 . 3 Dowl. 401 . 5 N. & M. 59 . 5 Dowl. 84 . 16 Law J., Q. B. 139 2 Dowl. 231 MS. Exch. H. T. 1847 1 Dowl. & L. 530 . 10 Jur. 952 . 16 Law J., Exch. 14 3 Dowl. 431 . 1 Dowl. & L. 375 12 Mee. & W. 545 . 5 Dowl. SO . 5 Ad. & E. 239 5Ad. lScE.279 . 7 Man. & G. 528 . . R. &M.429 6 Jur. 995 1 C. M. & R.26 . 2 Dowl. 064 . 13 Mee. & W. 151 2Dowl. &L. 405 . 2 Dowl. & L. 250 6 Dowl. 774 . G Dowl. 774 7 Dowl. 459. 8 Dowl. SOG , 9 Law J., Q. B. 28 3P. &D. 110. 7C. &P. 613 1 Mee. & W. 508 . 5 Dowl. 724 2 Dowl. & L. 721 . 7 Dowl. 697 5 Dowl. 562 . 5 Dowl. 562 11 Law J., Ex. 378 13 Law J., Ex. 114 1 Dowl. 696 . 1 Y. & J. 206 . 11 Jur. 242. 2 Dowl. 531 . 7 Dowl. 407. 5 Dowl. 524 IW.W. &D. 184 . 12 Law J., Q. B. 3 . 10 Ad. & E. 145 . 8 Law J., Q. B. 233 6 Law J., C. P. 191 3 Bing. N. C. 781 13 Mee. & W. 466 2 Dowl. & L. 428 , This Digest. Page. Writ 299 Judgment, nonsuit 157 Pleading . 243 Execution . 128 Pleading 238 Arbitration 26 Rules 253 JudgiDent 156 Attachment 37 .\ppearance 24 Motions . 174 New trial . 185 Particulars demand 216 P:irticulars demand 220 Writ of error 124 Writ 319 Execution . 127 Jury 171 Distringas . 100 Pleading 238 New trial . 181 Rules 256 Amendment 17 Orders . 210 Writ . 297 Outlawry 214 Pleading . 242 Nisi Prius 188 Plea in abatement 246 Particulars demand 220 Error of writ 124 Award . . 50 Pleading . , 230 Staying j)roceedings 267 Adniiss. of documents 2 Distringas . 101 Attachment . . 34 Warrant of attorney 289 Award . . 51 Attachment . 33 Judgment, nonsuit 167 ■Judgment, nonsuit 170 Pleading . . 236 Interpleader J I Costs y Award 141 77 52 TABLE OF CASES. Ixxiif Cases. Stamford, Earl of, r. Duubar Standwick v. Hopkins Stannard v. Ullithorne Stanton v. Paton Stan way »;. Heslop Stanwell v. Tower . Staples V. Hay V. Holdsworth Stead V. Carey . Steadman v. ArJen . Steel V. Compton Steaton v. Skeay Steinkeller i\ Newton Stephen v. Fitzgerald Stephens v. Hill V. Hill . V. Lowndes V. Lowndes Stevens v. Angell V. Fell . V. Thorne V. Thorne . V. Thorne V. Underwood Steward v. Layton Stockbridge v. Sussams Stockdale and anr. v. Benn V. Hansard Stocker and anr. v. Rodgers and another Stockport V. Hawkins Stocks V. Willes Stone V. March V. Ferrey . Stones V. Bacon — — V. Byron Store V. Watso!! Stoveld V. Ede . Stovin V. Tavlor Stowell, 621 parte Strainland v. Ogle Straker v. Graham . Strange v. Freeman f5 S< 17 L r 10 Me \ 1 Dow Reportkus. 2 Dowl. & L. 852 ri4 Law J., Q. B. IG I 2 Dowl. &L. 502 r 3 Bing. N. C. 326 [3 Scott, 771 1 Car. & K. 148 . 3 B. & C. 9 . 4 D. cS: R. 635 . 2 Dowl. 073 . I Dowl. & L. 711 Scott, 432 . aw J., C. P. GO Dowl. & L. 270 J 15 Law J., Ex. 310 \ 10 Jur. 553 9 Jur. 181 . 3 Dowl. 537 9 C. & P. 313 . II Jur. 351 Mee. & W. 28 5wl. N. S. C6'9 10 Mee. & W. 28 3 Dowl. & L. 295 3 Dowl. & L. 205 1 Dowl. &L. 150 r2C. &M.421 . [2 Dowl. 355 . /13 Law J., Ex. 303 [ 2 Dowl. & L. 230 13 Mee. & W. 149 J 2 Dowl. Si L. 230 18 Jur. 518 (i Law J., C. P. 20 3 Dowl. 430 11 Law J., Q. B. 217 MS. Esch. E. T. 1846 f 9 Law J., Q. B. 218 lllAd. &E. 297 I I Car. Sc K. 99 1 Dowl. & L. 204 5 Dowl. 221 8 D. & R. 71 1 East, 554 11 Jur. 44 . 16 Law J., Q. B. 32 2 Scott. 842 . SM.&Sc. 3G1 . 1 Dowl. 697 . 13 Law J., Ex. 328 . 3 Dowl. 99 . r 4 Mee. & W. 721 . t 7 Dowl. 223 5 Dowl. 407 . This Digest. Page. Costs . . 83 I New trial . .183 [■ Particulars demand 220 Nisi Prius . 1S9 >• Changing venue . 279 Attachment . 34 Award . . 55 I Pleading . 227 Pleading . .241 1 Inspection of docu- ments Attachment Pleading Nisi Prius . Writ . -Affidavit Attorney Appearance Judgment Pleading Notice of trial ■Affidavits . Writ ■Writ . 13a 33 241 193 315 12 40 21 153 237 202 4 307 308 Particulars demand 216 Record . . 253 Pleading . . 235 Rules . . 258 Staying proceedings 267 Certificate . 66 Writ . . .318 Warrant of attorney 289 New trial . .185 Judgment, nonsuit 160 Witness . . 296 Witness . . 296 Declaration . 90 Warrant of attorn e-v 29!) Arrest Recognizance Orders ■ New trial . Appearance / 29 252 207 184 21 Ixxiv TABLE OF CASES. Cases. Stratton v. Regan Stretton, in re . . . Strike v. Blanchard . Strong V. Dickinson . Strotlier v. Steavenson Stroud V. Watts Stratton v. Whitwell . Stuart V. llogers Stultz V. Heneage and another v. Wyatt Sugars V. Concanen Super V. Curtis Sutton V. Barnett V. Burgess V. Clark Swann, Robert, in re Sweeting v. Halse . Swift ?'. Knight . V. Knight Swinburn v. Taylor and anr. Swinford, in re Symes v. Amor V. Goodfellow Reporters. 2 Dowl. 585 a Dowl. & L. 278 15 Law J., Ex. IG 5 Dowl. 210 1 Mee. & W. 488 5 Law J., Ex. 231 MS. Exch. T. T. 1847 10 Jur. 497 .1 M. & R. 5G2 . 4 Mee. & W. 6"49 ■2Dowl. 80G lOBing, 561 14 Law J., Q. B. 55 5 Mee. & W. 30 . 2 Dowl. 237 2 Law J., Ex. 2 ' 4 Law J., Ex. 109 , 1 C. M. & R. 770 rSBing. 1G5 [1 M. & Sc. 271 15 Law J., Q. B. 40 9 B. & C. 369 f 5 Mee. Sc W. G18 L 9 Law J., Ex. 6 f 5 Mee. & W. G18 I 7 Dowl. 863 . f 11 Law J., Ex. 10 1^ 9 Mee. & W. 43 6 M. & Selw. 226 6 Mee. & W. 814 f 2Bing. N. S. 532 12 Scott, 769 This Digest. Motions V Attorney Affidavit ^ Arrest Award Certificate Inferior courts . Page. . 174 41 . 3 30 58 66 128 Judgment, nonsuit 162 ^ Bail . Outlawry Arrest Pleading Notice of trial IWrit 62 214 30 225 201 312 Particulars demand 218 Attorney New Trial ■ Affidavit . > Distringas !- Nul tiel record Awards Judgment, nonsuit \- Arbitration 41 183 9 102 205 47 164 27 Tallent v. Morton Tapping ?'. Greenway • V. Greenway Tarrant v. Morgan Tate V. Bodfield ?'. Bodfield Taunton v. Goforth Taylor i'. Bush V. Campbell V. Eraser V. Gordon, Lady V. Hodgson V. Leighton V. Lym V. Montague 1 M. &P. 188 1 Dowl. N. S. 408 9 Mee. S<. W. 224 2 C. M. & R. 352 3 Dowl. 218 . 3 Dowl. 218 6 D. & R. 384 8 DowL 613 . 7 Scott, 116 2 Dowl. 622 . 9 Bing. 570 2 M. & Sc. 725 10 Jur. 355, 3 Dowl. & L. 115 3 M. & Sc. 423 2 M. & P. 586 2M. &W. 315 . Venue Distringas Writ Inferior court Pleading Affidavit Attorney Distringas Attachment Costs I Costs 279 100 306 129 243 15 44 102 34 75 83 44 1- Attorney . . Warrant of attorney 286 Declaration . 92 . Judgment, nonsuit 163 TABLE OF CASES. Ixxv Cases. Taylor v. NichoU V. Rolfe and others V. Vt^hitworth V. Williams Tebbutt V. Ambler Teggin v. Langford Teulon v. Gant Thomas v. Duna V. Edwards V. Evans V. Hawkes V. Hews V. Jones V. Lewis V. Newman V. Stannaway v. Stannaway r. Swansea, Mayor, &c. of V. Williams Thomel v. Rollants Thompson, in re , ex parte V. Beck and another v. Billing V. Billing . V. Dicas r. Dicas V. Dicas V. Gisbon and another V. Hornby and another -I V. Jackson V. Jennings V. Nicholas V. Pennal Thomsett v. Clifton and anr. Thome v. Londonderry, Mar- quis Thornton v. Jennings Thorpe t\ Argles V. Hook Tiling V. Hodgson Reporters. ' 6 Mee. & W. 91 8 Dowl. 242 13 Law J., Q. B. ; '9 Mee. &W. 478 1 Dowl. N. S. 600 ■4M. &P. 59 . 7 Dowl. 674 ' 10 Mee. & W 2 Dowl. N. S. '5 Dowl. 153 This Digest. Page. 55G 467 1 Dowl. & L. 535 2 Dowl. 664 9 Mee. & W. 829 9 Mee. & W. 53 [2 C. &M. 519 \ 5 Tyrw. 335 . 6 Dowl. 663 . 5 Dowl. 395 . 2 Dowl. N. R. 33 J 13 Law J., Q. B. 263 \2 Dowl. & L. Ill 2 Dowl. cSc L. Ill . 11 Mee. & \V. 83 4B. &C. 260 2 M. G. & Sc. 290 J 2 Mee & W. 645 \ 5 Dowl. 745 14 Law J., a B. 176 12 Law J., Q. B. 305 11 Mee. & W. 361 . 11 Mee. & W. 361 2 Dowl. 93 J 2 Law J., Ex. 294 [IC. &M. 768 3Tyrw. 873;2Dowl.93 / 8 Mee. & W. 231 [10 Law J., Ex. 241 11 Jur. 1G9 16 Law J., Q. B. Vol 8 Dowl. 591 . 1 Scott, N.S. 157 10 Moore, 110 10 Mee. &W. 330 2 Dowl. N. S. 226 2 B. & Ad. 968 10 Law J.,Q. B. 233 8 Bing. 26 1 M. cSc Sc. 62 7 Dowl. 499 5 Bing. N. S. 485 1 Dowl. & L. 831 1 Dowl. 501 13 Mee. & W. 638 2 Dowl. & L. 655 > Warrant of attorney Costs I Rules Attachment Office copies > Interpleader Declaration f Inspection of docu- [ ment Writ of trial . Orders New trial ' Attorney Judgment New trial . Sheriff V Affidavit Writ of trial . Taxation Costs of the day Costs 1- Writ of privilege Motions Order Attorney Order Affidavit V Declaration Writ 1- Certificate I Paul ner ^ Pleading , Award V Nul tiel record Pleading Pleading i-Jury V Changing venue Staying proceedings Writ . 1 Writ 284 83 254 37 207 139 88 133 329 210 181 43 151 182 260 13 324 276 80 75 530 175 210 41 210 6 91 302 65 224 231 55 205 244 231 171 281 268 319 310 TABLE OF CA.SES. Cases. Tinley v. Porter Tinn v. Billingsley Tinriiswood v. Pattisou Tipping V. Johnson Tipton, ex parte Tobin v. Crawford and otliei Toby V. Hancock Todd V. Croxby V. Emley V. Emley V. Fellingham V. Jeffcry Tomliiisonw. Bolland V. Bolland Topham v. Kidmore . Toulmin v. Elgie Towers v. Newtoa V. Turner Towgood and othrs.2;.Mor< Townsend v. Gurney and another «. Smith Townson v. Jackson Towsey v. White Trent v. Harrison Treslove v. Whitcliurch Trest'ou v. Baningtoa Triije, in re Trist V. Johnson Trott V. Smith . Trotter v. Bass Tuck V. Tuck Tucker v. Brand V. Morris V. Neck Tufton V. Whitmore . Turner, in re . — in re V. Barnard and anotb. assignees, Kendal, Mayor of V. Parker Reportkhs. 2 Mee & W. 822 5 Dowl. 74-4 2 C. M. & R. 253 . 15 Law. J., C. P. 231 lOJur. 572 2 Bos. & Pul. 357 . 3 Dowl. 177 12 Law J., Ex. r; . 1 B. C. Rep. 207 10 Jur. 1083 <■) Scott, N. R. 517 5 Man. & G. 590 11 Mee. & W. 610 12 Law J., Ex. 142 . 8 Dowl. 372 2 N. & P. 443 4 Q. B. 642 4 Ad. & E., N. S. 642 3 Gale & D. 607 3 DowL 676 3 Dowl. & L. 558 15 La.v J., Q. B. 128 10 Law J., Q. B. 106 15 Law J., C. P. 249 in 3 Tyr. 52 ; 2 Dowl. 108 ; 1 C. M. & R. 590 . 5 Tvrw. 214 J 15 Law J.,Q. B. 93 t 3 Dowl. & L. 323 . 14 Law J., Ex.57 J/ D.& R. 810 . ■[SB. &C.125 14 Law. J., Q. B. 210 • ISc. 415; 8 Dowl. 837 iO Jur. 928 . . 3 Ad. & E. 295 1 M.&R. 259 r 9 Mee. & W. 763 •[2 Dowl, N. S. 278 Jl Bing. 516 . [3 Dowl. 407 . . 5Mee. &W. 114. 4 Dowl. 411 . r 1 C. & M. 73 • 1 1 Dowl. 639 . /4 Bing. N. C. 113 [6 Dowl. 231 . r 12 Ad. & E. 370 "19 Law J., Q. B. 405 6 Dowl. 6 . . 3 Dowl. 557 . 5 Dowl. 170 ^•|2 Dowl. & L. 197 . . 2 Dowl. & L. 444 This Digest. Page. [•Attachment . 37 Admission documents 2 i- Inferior court . 129 Attorney . 47} Recognizance . 252 Costs 82 Writ 299 I Distringas . 100 Inferior court . 12S Pleading , 244 Taxation . .271 Motion . .175 Amendment , 18 I Costs . . 76 Non pros. . 195 I Notice of trial . 202 Writ . . 315 Writ of trial . 323 Interpleader . 135 I Declaration . 92 I Nul tiel record . 201 Particulars demand 221 > Notice of action 198 Taxation Writ . . . Pleading Orders . Notice to produce 276 300 233 207 204 Pleading 228 Writ 301 Pleading Distringas 234 103 Interpleader 137 Taxation 277 Witness 295 Attachment Attorney Writ of trial 34 40 328 Interpleader 133 Declaration 89 TABLE OF CASES. Ixxvii Cases, Turner v. Payne V. Shaw V. Tennant V. Uawin Turquand and anr. v. Ilaw- trey and another. . Twiss V. Fry Twycross v. King Twysden v. Stultz Tyler r. Campbell V. Green Tyser v. Bryan REPORTERS. f 3 N. & M. 334 . . [ 1 Ad. & E. 34 . . 2 Dowl. 244 . 10 Jur. 429, Q. B. note 4 Dowl. 16 . Tins Digest. Page. > Cognovit Cognovit Attorney AflSdavit 11 Law J., Exch. 294 Pleading 5 Dowl. 157 . 2 Dowl. & L. 534 G Scott, 434 7 Scott, 116 . 3 Dowl. 439 . J 3 Law J., Exch. 183 1 2 Dowl. 640 . 71 41 IG 236 Attachment . 34 Pleading . . 242 Judgment, nonsuit 166 Attachment . 34 Writ . , .306 105 V Distringas Unite V. Humphrey Unwin v. King Urquhart v. Dick Usborne v. Pennell . 3 Dowl. 532 2 Dowl. 492 . 3 Dowl. 17 . 3 Law J., C. P. 174 10 Bing. 531 . ■} Declaration Inferior courts Writ . Bail 87 132 312 61 Valance, in re V. Evans \'ale V. Ganter . Van Sandau v. Browne , ex parte Vaughan v. Wilson . V. Wilson . Verbist ». De Keyser Vere v. Gowar Vernon v. Hodgins . Viner v. Langton Vinnicombe and anr., in re Vizetelly v. Wickoff . Vokins V. Snell Waddy v. Barnett Waddington v. Palmer Wade V. Simeon V. Simeon Wade V. Stiff V. Wood Wadsworth v. Marshall 8 Scott, N. S. 232 f 1 C. & M. 856 . 1_2 Law J., Ex. 272 9 Dowl. 106 . r2M. &Sc. 543 . [2 Law J., C. P. 34 1 Phillips, 605 . 5 Scott, 404 '6 Dowl. 210 4 Bing. N. S. 116 3 Dowl. & L. 392 [5 Dowl. 294 . L3 Bing. N. S. 503 r 1 Mee. & W. 151 [ 4 Dowl. 665 5 Dowl. 92 10 Law J., Q. B. 128 2 Dowl. & L. 853 2 Dowl. 411 . W. 15 Law J., Q. B. 8 2 Dowl. 7 13 Mee. & W. 647 2 Dowl. & L. 650 '3 Dowl. & L. 27 1 C. B. 610 . 1 M. & P. 25 1 C. B. 462 . 2 Cromp. & J. 665 Affidavit . . 10 l Costs . . 86 Judgment, nonsuit 158 i> Attorney . 43 Attachment . 35 Abatement of suit 1 -Judgment . 145 Pleading . . 233 > Outlawry . 211 -Rules . .257 Affidavit . , 11 Award . . 46 Writ . . 306 Judgment, nonsuit 167 Judgment, nonsuit 166 Distringas . 100 > Staying proceedings 268 > Staying proceedings 268 Plea in abatement 24 7 Prisoner . 250 Attorney . . 42 /3 Ixxviii TABLE OF CASES. Cases. Waite ?'. Cook V. Spurgin Waketielii, flayer of, ex parte Walford v. Fleetwood . Walker v. De Ricliment . V. Gardner V. Lane V. Needham V. Needham — ^ — and Co. v. Perkins . V. Thelluson Wall V. Lyon Wallace v. Brockley Wallen v. Sneith Waller i\ Blacklock and ors. • r. Joy Wallis V. Sheffield Walter v. De Richmont J'. Nicholson Walther v. Mess Walton V. Chandler Walter and others v. Reed Ward V. Bell . V. Graystock V. Lloyd V. Lloyd and another V. Pearson V. Watts Wardle v. Ackland Wardroper v. Richardson Warne v. Berresford Warner v. Haines Warren v. Lowe V. Smith V. Smith Warton v. Blacknell , Warwick v. Bacon . and another v. Cox Waterhouse i\ Keen Watkins, ex parte i\ Giles . V. liayward Reporters. 9 Dowl. 139 4 Dowl. 575 11 Law J., Q. B. 41 14 Mee. & W. 449 14 Law J., Ex. 271 14 Law J., Q. B. 22 2 Dowl. & L. 507 . 4 B. & Ad. 371 . 3 Dowl. 504 . 4 Scott, N. R. 221 1 Dowl. N. S. 220 , 3 Man. & G. 557 4 Scott, N. R. 222 . 2 Dowl. & L. 982 11 Law J.. Q. B. 14 1 Dowl. 714 ;9Bing.41 5 Dowl. G95 3 Mee. & W. 138 6 Dowl. 103 15 Law J., Ex.333 16 Law J., Ex. 17 9 Law J., Ex. 2 G Q. B. 544 6 Dowl. 517 . 14 Law J., Q. B. 230 2 Dcwl. & L. 961 14 Law J., C. P. 149 11 Jur. 522 1 C. & M. 848 . 2 Law J., Ex. 271 4 Dowl. 717 1 Dowl. iS, L. 763 10 Law J., Ex. 182 5 Mee. & W. 16 7 Dowl. 382 5 Law J., Ex. 169 5 Dowl. 94 . 3Tvrw. 819 . 1 Ad. & E. 75 2 Mee. & W. 848 6 Dowl. 157 6 C. & P. 666 . 7 Dowl. 602 5 Mee. & W. 159 2 Dowl. 216 12 Mee. & W. 558 1 Dowl. & L. 650 "8 Scott, N. S. 667 2 Dowl. & L. 596 1 Dowl. & L. 986 4 B. ik C. 200 . 6 Law J.. Ch. 225 8 Sim. 377 4 Dowl. 14 15 Law J., Q. B. 46 This Digest. Page. Distringas . New trial Execution 104 182 126 ^Attorney . . 40 (-Judgment . 145 Warrant of attorney 286 Costs of the day 80 206 • Office copies ■ Writ of trial . 322 . Writ . . .297 Outlawry . 211 1 Plea in abatement 247 . Cognovit . 69 j Taxation . . 273 Costs . . 85 . Nisi Prius . 186 Execution . .126 • Execution . 128 Interpleader . 139 ■ I Costs . . 81 Warrant of attorney 285 Inferior court . 130 Verdict . 281 Declaration . 89 Warrant of attorney 287 Writ . . .301 • New trial •Writ . Notice of trial Writ of trial ■Judgment Nisi Prius . Appearance 179 310 202 328 150 191 23 Costs . . .81 Rules . . 254 [■ Staying proceedings 265 I Rules . .254 Award . . 51 . Notice of action 198 Arrest 30 Judgment, nonsuit ICO Appearance. . 22 TABLE OF CASES. Ixxix Cases. Watson V. Abbott . ?'. Abbott . and others v. Boys and another V. Carroll . V. Dore V. Frazer V. Quilter i\ Walker V. Walker Watts V. Ball V. Ball V. Bury Weald V. Brown . Wearing v. Smith Weatherhead v. Landles Webb, in re V. Fairmaner V. Lawrence V. Page , P. O. w. Taylor V. Weatherley V. Webb Webber v. Hutcbins V. Nicholas V. Roe Wedge V. Berkeley Weeden v. Lipman Welch V. Vickery Wells V. Day V. Hare V. Secret Welsh V. Hall r. Langford Wemys v. Greenwood Wenham v. Downes . V. Fowle West V. Cook . Westerdale r. Kemp . Westmorland v. Pike Weymouth v. Knipe . Whalley, in re Reporters, 2 C. & M. 150 4 Tyrw. 64;2Dowl.2 1 14 Law J., Ex. 116 9 Dowl. 217 r 2 Mee. & W. 386. 15 Dowl. 584 . 10 Law J., Ex. 420 r 11 Mee. & W. 760 t 1 Dowl. & L. 244 / 1 M. & Sc. 437 tsBing. ;U5 r 8 Bing. 315 t 1 M. & Sc. 437 . J 8 Dowl. 589 . \1 Scott, N.S. 173 r 8 Dowl. 539 . [9 Law J., C. P. 282 4 Dowl. 44 2C. &J. 672 10 Jur. 924 5 Dowl. 189 ; 3 Sc. 406 14 Law J., Q. B. 244 3 :Mee. & W. 473 J 1 C. & M. 806 [3 Tyrw. 906 1 Car. & K. 23 1 Dowl.& L. 676 / I Bing. N. S. 502 [1 Scott, 477 4 Dowl. 599 r 10 Law J., Ex. 354 18 Mee. &V/. 319 4 Bing. 10 3 Dow!. 589 1 N. & P. 665 . 9 Dowl. Ill 15 Mee. & W. 59 8 Ad. & E. 941 1 Dowl. 366 . 2 Dowl. 447 aw J., Ex. 5 7 & W. 14 3 Dowl. 498 . 2 C. &P. 483 J 5 N. & M. 244 1_3 Ad. &E. 450 2 Dowl. 444 . 2 Dowl. & L. 8.i4 1 Tyrw. 203 J 5 Law J., Ex. 56 U T. & G. 227 /3 Bing. N. S. 387 [5 Dowl. 495 J 9 Jur. 995. This Digest. Page. JllLa^ t 9 Mee 15 Law J., Ex. 4 Pleading Writ Taxation Prisoner V Judgment Prochein amy 1- Inferior court J 233 327 274 250 150 251 132 12 148 239 324 ^ Affidavit I Judgment . V Pleading I Writ of trial Warrant of attorney 290 Writ . 321 Prisoner , 248 Writ . . 320 Attorney . 40 Computation of time 71 Writ . 310 Witness . . 295 Witness . 296 ]- Pleading . . 234 Warrant of attorney 291 }. Writ Costs Judgment, nonsuit Notice of action . Rules Taxation Amendment Non pros. Pleading ■ Pleading Writ Certificate -Judgment . Costs Costs Pleading . > Office copies . • Taxation }•' .\ttacliment 317 78 163 198 254 270 18 195 230 242 310 68 154 73 246 207 272 32 Ixxx TABLE OF CASES. Cases. and Whallcy v. Williamson Whatley v. jNIoreland Wheeler v. Green • r. Wliitmore . Wheldal v. Northern Eastern Railway Whiclver, in re White V. Cameron V. Clarke ■ V. Feltham . r. Feltham r. Hill and others V. Hislop V. Irving r. Royal Ex. Assurance V. Sandell '.'. Sharp V. Skinner • V. Urwin V. Western Whittell V. Bradford . M'ick V. Cotton Wickens v. Cox Wiffden v, Brit r 4 Mee. & " t (i Dowl. 6f Wigley V. Dubbins Wild and ors. v. Holt and an. Wild V. Williams Wilkes V. Ottley Wilkie V. Gipson W^ilkins v. Cauty V. Cauty V. Jones Wilkinson v. Malin . V. Page V. Pennington V. Small Wilks 11. Perks Willet V. Wilson Williams v. Bagot . r. Burgess and another V. Clough V. Crossling V. Davies V. Downman ■ V. Edwards V. Evans Reporters. 5 Bing. N. S. 290 7. DowL 253 2 C. &M. 347 2 Dowl. 249 Dowl. 194 . 4 Dowl. 235 13 Mee. cSc W. 9 2 Dowl. cSc L. 246 5 Dowl. 715 . 6 Dowl. 476 8 Dowl. 730 16 Law J., C. P. 14 16 Law J., C. P. 14 Dowl. & L. 537 W. 73 693 5 Dowl. 289 . 1 Eing. 21 3 DowL 798 12 Mee. & W. 712 1 Tyrw. 597 J 9 Law J., Ex. 150 t 8 Dowl. 202 . 2 Dowl. 451 5 Scott, 711 . 1 Dowl. & L. 227 4 Mee. & W. 67 r 9 Mee. & W. 50 . til Law J., Ex. 8 [12 Moore, 91 14 Bing. 18 11 Law J., Ex. 263 6 Mee. & W. 490 2 N. & P. 99 7 Law J.. C. P. 65 11 Law J., Q. B. 191 11 Law J., Q. B. 191 15 Law J., a B.225 B. C. Rep. 144 2 Dowl. 65 . 1 Dowl. & L. 913 / 3 Scott, 401 . \(, Dowl. 183 3 Dowl. 504 . 12 Law J., C. P. 145 2 C. & J. 356 . 3 B. & C. 772 10 Law J., Q. B. 10 1 Ad. & E. 376 . , 16 Law J., C. P. 112 ri CM. & R. 164 \ 2 Law J., Ex. 202 . , 13 Law J., Q.B. 319 1 C. M. & R. 583 . 2 Mee. & W. 226 This Digest. Page. > Certificate V Award Pleading Writ > Taxation . 67 55 . 243 329 275 Rules . . 257 Warrant of attorney 285 Notice of trial Declaration Costs Nisi Prius -Writ of trial Affidavit Attorney Nonsuit Award Affidavit . 201 86 79 186 328 11 44 197 52 6 159 ■ Judgment, nonsuit Distringas . 100 Verdict . . 282 Judgment, nonsuit 165 Particulars demand 216 {1= 127 280 51 248 230 164 1 146 102 182 229 31 236 Computation of time 72 Pleading . 239 Inferior Court . 129 Warrant of attorney 284 Affidavit . 13 Interpleader . 138 -Pleading . 235 Error, writ of . 125 Judgment, nonsuit 159 Writ of trial . 329 V Execution . V Changing venue . Award Changing venue . Pleading Judgment, nonsuit Abatement of suit Judgment . [-Distringas New trial . . Pleading r Attachment Pleading TABLE OF CASES. Ixxxi Cases. "Williams v. Great Western Railway Company V. Griffith r. Griffiths V. Hosier V. Hunt V. Jarmaa V. Mortimer r. Powell r. Roberts V. Roberts V. Strachan V. Waring ■ and Ux ». Waters, esor. V. Webb . V. Welch and others r. Vv'illiams Williamson v. Heath V. Lock V. Page . Willis and another v. Ball V. Hallet V. Oakely . V. Snook Willoughby v. Willoughby Wills V. Dawsoa V. Hopkins Willson V. Carey Wilson r. Edwards V. Foster V. !Minchin V. Nesbitt V. Nesbitt . V. Northorp and Ux v. Thorpe Wills V. Bowman Wilton V. Scarlett . V. Snook Wiltshire v. Lloyd . Windham v. Fenwick . Wenham v. Downes . Winter v. Dibdin Reporters. 1 10 Law J., Ex.472 9 Law J., Ex. 185 10 Mee. & W. 125 1 T. & G. 805 . 1 Chit. R. 321 . J 13 Mee. & W. 128 12 Dowl. & L. 212 J 11 Mee. & W. 104 \12 Law J., Ex. 164 10 Jur. 'JtG 3 Dowl. 512 J 1 C. M. & R. 670 {i Law J., Ex. 78 1 X. R. 309 . [4 Law J., Ex. 242 t 2 C. M. & R. 354 MS. Exch.E. T. 184 2 Dowl. N. R. 904 r 15 Law J., Q. B. 7 [3 Dowl. & L. 357 10 Mee. & W. 174 12 Law J., Q. B. 168 14 Law J., Q. B. 93 rs Do>vl. & L. 14 [IC. B. 464 11 Law J., Q. B. 13 / 7 Scott, 474 . \s Law J., C.P. 244 6 Dowl. 766 JIO Law J., Ex. 266 \8 Mee. & W. 147 6Q. B. 722 12 Law J., E:i. 24 2 Dowl. 151 12 Law J., Ex. 17 r 3 B. & C. 734 '. \ 5 Dowl. 622 . 1 Dowl. & L. 496 r2C. &J. 87 . L 1 Law J., Ex. 39 11 Law J., C. P. 206 11 Law J., C. P. 206 [4 Dowl. 441 . 1 2 C. M. & R. 326 f 6 Mee. & W. 721 \ 9 Law J., Ex. 232 2 Dowl. 413 1 Dowl. & L. 810 1 Dowl. & L. 964 I Doug. 381 II Mee. & W. 102 3 Ad. & E. 450 . J 13 Mee. & W. 25 1 2 Dowl. & L. 211 This Digest. Page. Costs Taxation Taxation Distringas Affidavit |- Demurrer |-New trial . Attorney Writ >- Taxation Appearance I Writ Demurrer Sherifif . I Affidavit Writ Taxation Award |- Witness Irregularity |- Pleading Judgment, ncnsu JBaU Judgment Affidavit . Interpleader Demurrer ^ Declaration Award > Costs Writ of trial . Notice of trial I Order . I Writ of trial . Distringas . Demurrer Amendment Attorney Writ Judgment . y Arrest 83 271 275 100 6 97 179 39 305 271 22 311 . 94 260 . 14 301 273 48 294 143 227 t 167 60 151 . 13 135 . 95 87 54 74 325 , 202 207 327 , 100 . 93 IS . 39 297 , 154 29 Ixxxii TABLE OF CASES. Cases. Winwood v. Hoult . Wise V. Wilson . Withers v. Spooner . V. Spooner . Wolleu i\ Smith . ?'. Smith . Wotten V. Smith Wood». Ciitchfield . V. Duncan . V. Farr . V. Grimwood V. Hotham 'V. Hume —— V. Hume IK Hurd . V. Kerry V. Kirk man V. Morewood V, Pe3'ton V. Pringle . V. Thompson . Woodcock V. Kilby Woodgate v. Baldock Woodhouse, in re Woodman v. Goble . Woodroffe v. Wootton Woollett, ex parte . Woolraer and an. v. Devereux Wootton V. Barton . Worley v. Cunningham Worrall v. Deane Worthington v. Wigley Wright V. Burroughs and ors V. Burrouglis and ors V. Gardner , V. Hunt . V. Lewis —— V. Maddox V. Maddox , V. Oldfield V. Skinner . V. Skinner V. Stamford ■ V. Wales V. Warren . REPORTERS. '14 Mee. &W. 197 3 Dowl. & L. 85 I Car. & K. GG2 . '5 Man. & G. 268 . G Scott. N. R. Gy2 1 Dowl. & L, 17 I P. & D. 374 . 8 Law J., Q. B. 122 9 Ad. Si E. 505 [2 Law J., Ex. 2 [1 C. &M. 71 . ' 5 Mee. & W. 87 . ^ 7 Dowl. 344 . '5 Bing. N. S. 247 7 Scott, 270 . "lO B. & C. 699 . 5 Mee. & W. 674 15 Law J., Q. B. 319 10 Jur. 1008 . '5 Law J., C. P. 312 b Dowl. 188 , ' 3 Dowl. & L. 642 15 Law J., C. P. 122 II Law J., C. P. 288 10 Law J., C. P. 53 14 Law J., Ex. 28 1 M. & R. 277 1 Car. & M. 171 . 1 Mee. & W. 41 2 Dowl. 256 2 M. G. & Sc. 290 ' 3 Mee. & W. 304 7 Law J., Ex. 59 . 4 Scott, 364 '12 Mee. & W. 504 1 Dowl. & L. 593 10 Law J., C. P. 207 1 M. Ik R. 518. 8 Dowl. 139 2 Dowl. 261 . 5 Dowl. 209 2 Dowl. & L. 94 " 10 Jur. 8G0 . 15 Law J., C. P. 277 "3 Dowl. 657 1 Dowl. 457 8 Dowl. 298 10 Jur. 266 15 Law J., Q. B. 81 8 Dowl. 899 . 5 Dowl. 92 . 1 Mee. & W. 144 11 Law J., Q. B. 42 5 Bing. 336 3 M. & Sc. 163 . This Digest. Page. I Judgment Nisi Prius . 148 189 Judgment, nonsuit 158 Motion . . 175 Discontinuance Pleading Discontinuance , Rules . 1 Costs 1 99 245 98 258 82 234 Pleading Certificate . 68 Arbitration . . 25 Amendment . 20 Judgment . . 149 [.Judgment. . 155 1 Pleading . . 238 Distringas . 103 Insp. of documents 133 Verdict . .281 Nisi Prius. . 187 Jury . . .174 Declaration . .87 Pleading . . 233 Attachment . . 34 1 Pleading . . 227 Costs . , "78 I Taxation . . 277 Orders . . .209 Nisi Prius . 192 Affidavit . 7 Award . . 56 Pleading . . 239 Costs . . .84 ^. Pauper Rules . 225 255 Affidavit . 8 Affidavit 16 Writ 319 Writ . 320 Judgment, nonsuit 159 Affidavit 6 Attorney . 40 Prisoner 250 Notice of action . 198 Writ 307 Cases. Wrightup V. Greenacre Wynne v. Edwards . TABLE OF CASES. Reporters. 11 Jur. 40S . . 1 Dowl. & L. 976 Ixxxiii This Digest. Page. Sheriff . Award 263 50 Yates ». Dublin Steam Company V. Freckerton Yeardly v. Roe Youlton V. Hall . V. Hall . Young V. Crompton V. Fisher V. Hickens V. Hickens . V. Higgon V. Maltby . V. Showier Yrath v. Hopkins 147 532 Packet f 8 Dowl. 402 \3Mee. & W. 77 2 Doug. 622 3 T. R. 573 f 8 Law J., Ex. t 7 Dowl. 175 4 Mee. & W. J 10 Jur. 248 [2 Dowl. & L. 557 f 2 Dowl. N. S. 637 \ 2 Scott, N. S. 893 6Q. B. 606 1 Dar. & Mer. 599 J 6 Mee. & W. 49 . t8 Dowl. 213 . 3 Dowl. 604 2 Dowl. 556 . r2 C. M. & R. 250 13 Dowl. 711 . > Judgment Attorney . Attorney I Writ Writ . [-Taxation . >■ Notice of trial . Discontinuance Discontinuance , >■ Notice of action 152 43 39 293 302 275 202 97 98 198 62 Bail . Warrant of attorney 286 I Sheriff. . . 2G0 Zuluetta V. Miller ■{i 5 Law J., C. P. 267 10 Jur. 859 ' 'I Pleading . . 227 ERRATA. P. 195, 11th line from bottom, for "imperfect application,'' read " imperfect replication." P. 34. line 24, for " 2 W. & M." read " 2 3Iee. if IF." P. 71, line 7 from bottom, for " 2 D. & C." read " 2 Dowl." AN AJSTALYTICAL DIGEST OF SELECTED PRACTICE CASES. ABATEMENT OF SUIT. Abatement of suit.} The death of the wife abates a suit brought by her and her husband, for a debt due to her dum sola. Checci and Wife V. Powell, 6 B. & C. 253. It seems the 17 Car. 2, c. 11, which enacts that a suit shall not abate by death of a party between the verdict and judgment, does not apply to a nonsuit. Dowbigyin v. Harrison, 10 B. & C. 480; and Farraine v. Hill, 4 M. & P. 413. Where the plaintiff by his own delay has not obtained his judgment until after the death of the defendant, the court will not suffer judg- ment to be signed nunc pro tunc. Doe d. Taylor v. Crisp, 7 Dowl. 584 ; and Wilkins v. Cauty, 11 Lasv J., Q. B. 191, and Copley v. Day, 4 Taun. 702. Nor in any case except where the delay arises from the act of the court itself. Vaughanv. Wilson, 5 Scott, 404 ; Evans v, Rees, 12 Ad. & E. 167. The 17 Car. 2, c. 8, extends to verdicts in actions for torts, as well as contracts. Palmer v. Cohen, 2 B. & Ad. 966. In case of death of parties, sittings in term not esteemed as one day, so that the trial could have reference to the first day of term, nor can a special adjournment day be obtained to prevent abatement of suit by death. Johnson v. Budge, 1 C, M. & R. 647 ; 3 Dowl. 207. At the Nisi Prius sittings in the term, the practice is to make up the postea, as of the day on which the cause is tried. The death of the defendant after the first Nisi Pruis day in the term, but before the day as of which the postea appears upon the record to be made up, abates the suit. Halliday v. Saunderson, 1 Alcock & Napier, 147, (Irish). The court will under some circumstances stay the postea in the hands of the associate, where it appears that the plaintiff died be- fore verdict. Johnson v. Hamilton, 1 M. & W. 149; 4 Dowl. 762. A suit abates by death of parties, where it is referred, and an award made, but no verdict or judgment entered up. Maffey v. Godwyn, 1 N. &M. 101. B 2 ADMISSION OF DOCUMENTS. The death of one of two parties who have obtained a certiorari, does not prevent the court from proceeding to dispose of the matter. Rex V. Justices of Yorkshire, 6 B. & C. 152. Where a cause was, by order of Nisi Prius, referred to a barrister to state a special case, and the case was stated after the death of the defendant, the court refused to set it aside. James v. Crane, 3 Dowl. & L. 661 ; 15 Law J., Ex. 232. Where a verdict was found for the plaintiff on the trial of an eject- ment, subject to a special case, and before the terms of the special case were settled the plaintiff died, the court discharged a rule for setting aside the verdict or staying the proceedings, upon the terms of the lessor of the plaintiff giving security for costs. Doe d. Egre- mont V. Stephens, 10 Jur. 570; B. C, Coleridge; 14 Law J.,Q. B. 258. Where there was a verdict for the defendant in an action of as- sumpsit, and a rule to show cause why there should not be a new trial ; and before the rule came on to be heard, the defendant died : — Held, that the rule should still be argued ; as in case it was discharged, the judgment would relate to the term in which it was granted, when the defendant was living. Anderdon v. Lord Foley, 2 Law J., K. B. 214. ADMISSION OF DOCUxMENTS. Admission of documents. ~\ A notice to admit, four days before the commission-day at the assizes, is sufficient to entitle the plaintiff to the costs of proof. Tinn v. Billingsley, 2 C. M. & R. 253. Notice to admit documents in the hands of third parties."] It is no objection to a party to the cause calling upon his opponent to admit certain documents under Reg. Gen. H. T. 4 Will. 4, that the docu- ments are in the hands of a third party. Rutter v. Chapman, 11 Law J., Ex. 178 ; 8 Mee. & W. 388. Notice to admit documents must be given to entitle plaintiff to costs of proving.] The plaintiflf is not entitled to the costs of proving a document, unless he has given a notice to admit it, pursuant to rule of H. T. 4 Will. 4, s. 20, notwithstanding that the document is in issue on the pleadings, and the defendant has refused to admit it, on the ground of its being a forgery. Spencer v. Barough, 11 LawJ.,Ex. 378. Costs of proving documents, not admitted after notice to admit.] Where a judge has certified that the execution of documents has been proved, so as to render a party in a cause, who has refused to admit such execution, liable to pay the costs of proving it, the court will not direct the master to tax the costs while a motion to set aside the verdict, &c., remains undisposed of. Doe d. Davies v. Davies, 9 Law J., Q. B. 324 ; 4 P. & D. 141. The execution of certain documents not having been admitted by the defendant, the plaintiff obtained the usual judge's order, that the costs of proving them, on the trial, should be paid by the defendant, whatever might be the event of the cause. The trial took place and the plaintiff recovered a verdict, which was afterwards set aside for irre- gularity, without costs. Previous to a second trial, the defendant admitted the documents : — Held, that the plaintiff, who also succeeded AFFIDAVIT— In General 3 at the second trial, was entitled to the costs of proving them at the former trial. Lewis v. Howell, 6 Ad. & E. 769 ; 6 Law J., K. B. 182. Admission for one trial receivable onanother.'\ Written admissions made for the purpose of a former trial, may be used on a new trial. If the party who made them wishes to withdraw them, he should take out a summons before a judge, in order to obtain his permission. Elton V. Larkins, 5 Car. & P. 305 ; 1 M. & Ro. 186. AFFIDAVIT— Jm General The description of the deponent in an affidavit as plaintiff, or as defendant is sufficient.'] On its being objected, that the affidavit of the defendant, on which the rule had been obtained, did not contain his additions, the court said the rule H. T. 2 Will. 4, did not apply to affidavits made by the defendants in the cause. Jackson v. Chard, 2 Dowl. 469 ; Poole v. Pembrey, 1 Dowl. 693, further confirmed by Angel V. Ihler, 5 Mee. & W. 163. Held by all the judges, that affidavits made in actions by the plain- tiff or the defendant, are exempted from the operation of the rule of H. T. 2 Will. 4, reg. 1, s. 5, which requires that " the addition of every person making an affidavit shall be inserted therein." Shirer v. Walker, 2 Man. & G. 917; 3 Scott's N. R. 235. Deponent's description in on affidavit,] "A. B., clerk to C. D , defendant's attorney," is not a sufficient description of a deponent. Daniels v. May, 5 Dowl. 83 ; 1 T. & G. 834. In an affidavit, " W. A. of No. 37, Threadneedle-street, agent for the above-named plaintiff in this cause," is a sufficient description of the deponent's degree. Luxford v. Groombridge, 12 Law J., Q. B. 99, and Mathewson v. Baistow, 15 Law J., Q. B. 40. A prisoner in the custody of the warden of the Fleet need not state his place of abode. Sharpe v. Johnson, 4 Dowl. 324 ; 2 Bing. N. S. 246. Deponent describing himself as "acting as managing clerk to Messrs. , attorneys," not stating their place of business, bad. Graves V. Browning, 6 Ad. & E. 805. In an affidavit by an attorney's clerk, it is unnecessary for him to state his residence, if he states that of his master. Strike v. Blanchard, 5 Dowl. 216. A joint and several affidavit was objected to, as being irregular, for want of the addition of one of the deponents. The court refused to allow it to be used as to the statement of facts made by the other deponents. Rex v. Carnarvon, (Justices,) 5 N. & M. 364. But where, to an affidavit by two deponents, the addition of one was defective, and it was virged on the authority of the above case, that it was unavailable altogether, Coleridge, J. allowed it to be used so far as related to the statements made by the co-deponent, observing, that the case quoted must have proceeded upon the peculiar facts. Ex parte Edmonds, 5 Dowl. 702, and Nathan v. Cohen, 3 Dowl. 370 ; 1 Har. & W. 107. An affidavit sworn in London, and describing the deponent as " agent for the defendant in this cause," is sufficient. Mathewson v. Baistow, 15 Law J., Q. B. 40 ; 3 Dowl. & L. 32". B 2 4 AFFIDAVIT— In General. An affidavit made by a defendant in a cause cannot be read unless his addition is inserted. Lawson v. Case, 4 Dowl. 40, Ex. In an affidavit made by the defendant, in a cause in support of a rule moved for by him, for security for costs, it is not necessary for him expressly to swear that he is the defendant ; it will be sufficient if it appear, with reasonable certainty, from the language of the affidavit, that he is so. Loutreuil v. Phillippe, 10 Jur. 757, B. C, Coleridge ; 1 B. C. Rep. 87. Ajjidovit — variance in name nf deponent and the signature of sameJ] Held, to be no objection to an affidavit, that it was made by " E. Charles Pownall," and signed by " Charles Edward Pownall." Hands v. Cle- ments, 12 Law J., Ex. 437 ; 1 Dowl. & L, 379, Ex. Affidavit — variance in description of defendant' s residence from that in the writ.'] The party who made the affidavit of having been served, described his residence differently from that in the writ, and made no allegation of his being the defendant in the cause ; held sufficient. Stevenson v. Thome, 13 Law J., Ex. 303 ; 2 Dowl. & L. 230. Affidavit more than a year old allowed on motion to sign judgment on warrant of attorney^ A rule to sign judgment on an old warrant of attorney, granted upon an affidavit of the due execution, made above a year before on an unsuccessful application. O'Neill v. Coghlan, 2 Dowl. & L. 5. fVithln what time an affidavit may be used.] An affidavit is not con- sidered stale till it is a year old. Kamsden v. Maugham, 4 Dowl. 403 ; 2 C. M. & R. 634 ; 1 T. & G. 40. And cannot be used when moving for a rule when more than a year old. Burt v. Owen, 1 Dowl. 691. It has since been held in the Queen's Bench, that, a motion may be made on an affidavit more than a year old, unless the lapse of time affects the subject-matter of the affidavit. Doe d. Clarke v. Stillwell, 3 N. & P. 701. Affidavit on one rule not admissible on another.'] Affidavits sworn in support of, or in answer to one rule, will not be allowed to be used on another (though substantially embracing one of the objects of the former rule) where any doubt exists as to the practicability of assign- ing perjury thereon in reference to the rule upon which it is sought to use them. Quelle v. Boucher, 1 Scott, 283 ; 3 Dowl. 107. Separate affidavits must be sworn for separate rules although similar.] Where two rules are moved for under precisely similar circumstances, they should be founded on distinct affidavits ; and it is not enough to refer, in the second, to the affidavits already sworn in the first. The Queen v. Missen, 11 Law J., Q. B. 189. Affidavit used on a motion abandoned, may be used on a subsequent motion.] An affidavit made and filed in a motion that has been aban- doned, may be used in a subsequent motion, where the cause, the subject-matter and the parties, are the same. Ryan v. Smith, 9 Mee. & W. 223 ; 11 Law J., Ex. 77- An affidavit which is upon the files of the court may be used after- wards in the same cause, though for a different purpose. Chambers v. Bryant, 12 Law J., Q. B. 139 ; and Ryan v. Smith, 9 Mee. &W. 223. What affidavits may be used on rule to rescind judge's order.] In AFFIDAVIT— J« General. 5 showing cause against a rule to rescind a judge's order, made under 1 & 2 Vic. c. 110, s. 3, for the arrest of a party, or under s. 6, refusing his discharge, either party may read other affidavits than those used before the Judge. Gibbons v. Spalding, 12 Law J., Ex. 185 ; 11 Mee. & W. 173. An affidavit used in one court and sworn before a commissioner of another court.'\ Where a rule has been obtained in one court, on affidavits sworn before a commissioner of another court, it will be dis- charged with costs. Shaw v. Perkin, 11 Law J., Q. B. 52. Affidavit necessary to account for delay in applying to the court. ^ Where a motion prima facie too late, was explained Ijy a statement not on affidavit, that an application on the same subject had been made to a judge at chambers, which statement the learned judge con- firmed by his recollection : — Held, that this was not sufficient, and that there ought to have been an affidavit of the fact. Goren v. Tute, 10 Law J., Ex. 61. Affidavits for showing cause, when may be sworn.l Affidavits may be used in showing cause, though sworn after the time named for showing cause in the rule. Hicks v. Marreco, 3 Tyr. 216 ; Percivalv. Hodley, ib. 217. A proceeding attached to a defective affidavit cannot be referred /o.] The court cannot entertain an objection patent on a proceeding at- tached to the affidavit bringing that objection before the court, if, from wrong entitling, the affidavit cannot be read. Harris v. Mathews, 4 Dowl. 608. Affidavit need not be stamped for a rule nisi for a mandamus.'] The court refused to stop the case on an objection to the use of the affi- davits filed by the prosecutor, as they were not stamped. The Queen v. The Mayor of Litchfield, 10 Law J., Q. B. 172. Costs of long affidavits.] Where long affidavits are filed in support of a motion, a great part of which is unnecessary, the court will refer them to the master, and make the party applying pay the costs of the unnecessary affidavits. Lewis v. Woolrych, 3 Dowl. 692. Deponent convicted of subornation of perjury.] The court will cause to be taken off the file the affidavit of a person who has been convicted of subornation of perjury. In re Sawyer, 11 Law J., Q. B. 234. Affidavit sworn before an attorney, who is afterwards attorney in the cause.] It is no objection that the commissioner before whom an affidavit is sworn was the party's attorney, unless shown to be so when the oath was administered. Beaumont v. Dean, 1 Tyrw. & G. 209; 4 Dowl. 304. Affidavit, form of] An affidavit commencing "maketh and saith," omitting the word " oath," is insufficient. Doe d. Brifton and others v. Clarke, 12 Law J., Q. B. 69 ; and Oliver v. Price, 3 Dowl. 261. An affidavit to support a motion must he explicit.] An affidavit must contain distinct and positive allegations, not suggestions merely. Reg. V. Manchester Railway Company, 3 X. & P. 439. In moving to set aside proceedings, the affidavit must distinctly 6 AFFIDAVIT— 1« General. show that the step objected to has been taken, and be averred to be true in the present, not the past tense. Classey v. Drayton, 6 Mee. & W. 17. Affidavits containing impertinent, irrelevant, or scandalous matter.'] The introduction of impertinent or irrelevant matter in an affidavit will induce the court to deprive the party of his costs, though other- wise entitled to them. Thompson v. Dicas, 2 Dowl. 93, Ex.; and Rex. V. Byrne, 6 Dowl. 36, Q. B. And for irrelevant matter the court have disallowed the costs of such matter, and directed payment of costs to the opposite party. Cassen v. Bond, 2 Y. & J. 531 ; and Lewisv.Woolrycli, 3 Dowl. 692, Ex. When affidavits contain irrelevant or impertinent matter, the party by whom they are filed may be punished by the infliction of costs, at the discretion of the court. Ex parte Heullen, 7 Pr'^ce, 59i. If defamatory or scandalous matter be introduced unnecessarily in an affidavit, it may cause the rejection of the deposition. Sanderson's Bail, 1 Chit. R. 676 ; and Williams v. Hunt, ib. 321. Affidavit in a foreign language.'] An affidavit in a foreign language translated, and the translation verified, and the oath administered in a foreign language, is sufficient. It need not be signed if such be the practice of the country where made. Re Eady, 6 Dowl. 614. An affidavit signed by the deponent in a foreign character, although illegible, may be received, without an affidavit stating that the party was a foreigner. Nathan v. Cohen, 3 Dowl. 380. An affidavit should be legibly written.] An affidavit illegibly and slovenly written may be objected to, and costs given against the parties producing it. Bane v. Jones, 8 D. & R. 114. Alteration in an affidavit.] A commissioner need not put his initials opposite an immaterial alteration in an affidavit sworn before him. In re hneson, 8 Dowl. 651. Alteration in an affidavit after it is sworn.] Any material alteration in any affidavit after it has been sworn renders it a nullity. Wright v. Skinner, 5 Dowl. 92. Making an addition to an affidavit after it is sworn, does not render it void, but the court will only use the original part. White v. Skin- ner, 1 Tyrw. & G. 597. Amendment of an affidavit.] The wrong year was inserted in the jurat of an affidavit ; the court, viewing it as a mere clerical and obvious error, permitted it, on production of a supplemental affidavit, to be amended. Cooper v. Archer, 12 Price, 149. Where an affidavit is erroneously entitled, it may be amended on being re-sworn. Cooper v. Talbot, 7 Scott, 345 ; and Rex v. Justices of Warwickshire, 5 Dowl. 382. When the defect is in an affidavit used in showing cause, the rule may be enlarged to allow an amendment. Aiiderson v. Ell, 3 Dowl. The right to amend an affidavit seems to depend upon whether the AFFIBAYIT—Entitlinff of. 7 defect is in an affidavit on which a rule has been obtained, or which has been already filed, or only in affidavits used in showing cause, or in moving for a rule nisi. In the two latter instances they are clearly amendable ; in the former they are not. Robinson v. Gardner, 7 Dowl. 716, Q. B. AFYIDAYIT— Entitling of. Title of affidavit in the description of the parties to the suit.^ " Phillips, assignee, &c.," is an irregular mode of describing a plaintiff in entitling an affidavit. Phillips v. Hutchinson, 3 Dowl. 20; and Casley v. Smith, 4 Dowl. 477, Ex. " Geo. Shrimpton v. Wm. Carter the Elder, sued as ^ym. Carter," where the action was by Geo. Shrimpton v. Wm. Carter, rejected. Shrimpton v. Carter, 3 Dowl. 648. An affidavit on the part of the defendant, which is entitled C. D., the defendant, at the suit of A. B., the plaintiff, cannot be read. Richard v. Isaac, 1 C. M. & R. 136 ; 4 Tjt. 863. The addition of "Widow" to the name of a party in the title of a cause is not necessary. Miller v. Miller, 2 Scott. 117. The christian names of the parties in a cause must be written length in the title of an affidavit. Maslon v. Carlon, 4 Dowl. 477 K. B. ; Shaw v. Robinson, 8 D. & R., 423 ; and Masters v. Carter, Dowl. 577. An affidavit in support of a rule under 1 Geo. IV. c. 87, must no be entitled " Doe d. Pryme and another v. Roe and another," but the christian and surnames of all the lessors of the plaintiff must be set out at length. Doe d. Pryme, v. Roe, 8 Dowl. 340 ; and Doe d. Cou- sins v. Roe, 4 Mee. & W. 68 ; 8 Law J., Ex. 69. In the writ of summons the plaintiff described the defendant as James S. Hodson ; the defendant entered an appearance as James Shirley Hodson ; affidavits were produced in support of an application to set aside interlocutory judgment, the title of which described the defendant as James Shirley Hodgson, sued as James S. Hodson : — Held, that they were well entitled. Dunn v. Hodson, 1 Dowl. & L. 204, Q. B. Where a motion is made for a rule to compute principal and interest on a bill of exchange, if the affidavit supporting the application is entitled with the initial of the defendant's christian name only, an affidavit should be produced showing that the defendant so signed the bill. Hilbert v. Wilkins, 8 Dowl. 139; and Worley v. Cunningham, 8 Dowl. 139. The like as to an application for a distringas. Ceal v. Cockburn, 7 Scott N. R. 413 ; 6 Man. & G. 724. Where the defendant was described in the writ of summons as " Frederic C. Prosser," affidavits, in support of a rule to set aside the judgment, &c., for irregularity, entitled " Henry Sims v. Frederic Coulton Prosser," are improperly entitled. Sims v. Prosser, 15 Mee. &W. 151; 15 Law J., Ex. 199; 3 Dowl. & L. 491. In a subsequent case affidavits in support of a rule for judgment as in case of a nonsuit, entitled " Edward Lomax, plaintiff, against William Wells Kilpin, defendant ;" the defendant having been de- scribed as "W. W. Kilpin" in the writ of summons: — Held sufficient. Lomax v. Kilpin, 16 Law J., Ex. 23. 8 AYYlBAyn—Entitlint/ of. Affidavits entitled in a cause, without giving^ the plaintiff" the addi- tion of " assignee," cannot be used in a cause where the plaintiff sues as assignee. IVric/ht v. Hunt, 1 Dowl. 457. Where an action has been brought against the defendant by the initial of his christian name, " W.,' and has proceeded to execution, so entitled, an affidavit in support of an application against the sheriff for not returning the fi. fa. in the cause, cannot be read, if it describes the defendant by the christian name of " William." Regina v. Sheriff of Surrey, S Dowl. 510. The parties should be described in the title of an affidavit as "plaintiff" and "defendant." Harris v. Griffith, 4 Dowl. 289; and Richard V. Isaac, 1 C, M.& R. 136. If affidavits, used on a rule, with respect to a matter of arbitration, where there is no cause in court, improperly introduce the words " plaintiff" and " defendant" after the names of the parties in the title of the affidavits, those words may be treated as surplusage. In re Imeson, 8 Dowl. 651. " Casley, assignee," &c. is not a sufficient description of the plain- tiflf in the title of an affidavit. Casley v. Smyth, 4 Dowl. 477 ; 1 T. & G. 219 ; and Clark v. Martin, 3 Dowl. 222. The defendant, whose real name was Henry R., was described in the writ of summons and distringas thereon as Humphrey D. R. On an application to set aside the distringas, he entitled his affidavit in the cause "B. v. Humphrey, D. R., sued as Henry R. :" — Held incorrect, there being no such cause until appearance. Bothwick v. Ravenscroft, 8 Law J., Ex, 160 ; 5 Mee. & W. 31 ; 7 Dowl. 393. Affidavits made for the purpose of opening a rule respecting two actions, in which the same parties are plaintiff and defendant, must be entitled in both actions ; if entitled only in one, they must be entitled afresh and re-sworn. Corry v. Wharton, 5 Law J., C. P. 89 ; 2 Scott, 436. Where affidavits relate to actions both against the principal and the bail, they are properly entitled in both causes. Pocock v. Cockerton, and Pocock V. Perry, 8 Law J., Ex. 3 ; 7 Dowl. 21. Where the declaration in ejectment contains both joint and several demises, it is sufficient to entitle the affidavit, on motion for judg- ment, as being on the several demises of all the lessors of the plaintiff, without noticing which are joint and which are several. Doe d. Buries V. Roe, 5 Dowl. 447. An affidavit showing cause against a rule for setting aside an at- tachment against the late sheriff, for not bringing in the body, should be entitled, not in the original cause, but in that of the Queen v. the late sheriff, in a certain cause, (the original one). Regina v. Sheriff of Middlesex, 8 Law J., C. P. 39 ; 6 Law J., Ex. 9 ; 2 Mee. & W. 107 ; and Rex v. Sheriff of Middlesex, 5 B. & C. 389; 8 D. & R. 149. The affidavit of the execution of a power of attorney, to demand the performance of an award, must be entitled in the cause. Doe d. Clarke v. Stillwell, 6 Dowl. 305. Affidavits in sup[)ort of an application to quash a certiorari, bring- ing up an order of justices for stopping up a road, must be entitled in the names of the parties in the proceeding, and not merely *' In the Queen's Bench." Regina v. Jones, 8 Dowl. 80. An affidavit to hold to bail, under 1 & 2 Vic. c. 110. s. 3, made be- AYFlBXYU—Entit/inff of. 9 fore the issuing of a writ of summons, need not be entitled in the cause. Schletter v. Cnhen, 10 Law J., Ex. 99. J. A. E. was served with a writ of summons, in which he was de- scribed as J. E. The writ of summons was, in other respects, in- formal. The affidavit of J. A. E. upon which to found an application to set aside the copy of the writ, was entitled in a cause A. B. against J. A. E., sued as J. E. : — Held, that it was properly entitled. Jones V. Eldridge, 11 Law J., C. P. 192. This case overrules Swift v. Knight, 5 Mee & W. 618 ; 9 Law J., Ex. 6. An affidavit in support of a rule for judgment as in case of a non- suit, was entitled " Between John Singleton, plaintiff, and George Johnstone, defendant." On showing cause it was sworn that there were two George Johnstones ; and that all former proceedings in the cause were entitled John Singleton v. George Johnstone the elder ; — Held, that the affidavit was sufficiently entitled. Singleton v. John- stone, 11 Law J., Ex. 88 ; 9 Mee. & W. 67- The defendant having entered his claim to certain coffee that had been seized for breach of the revenue laws, and received it back on giving sureties to the crown, commenced an action of trover in the (Jommon Pleas against the seizing officer, who pleaded thereto. A v,-rit of appraisement had issued, but no information had been actually filed : — Held, that the Attorney-General was at hberty to remove the cause into the Court of Exchequer. Held, also, that the affidavits in support of the rule were rightly entitled "The Attorney-General, in- formant, against John Kingston," (the plaintiif in the action). At- torney-General V. Kingston, 11 Law J., Ex. 72 ; S Mee. & W. 163. An affidavit verifying a plea in abatement was entitled " between A. B., administratrix, &c. plaintiff, and C. D., defendant :" — Held, irregular. Fletcher Admix. 4"c. v. Letchmere, 12 Law J,, C. P. 151. Variance in title of affidavit and declaration in ejectment.^ An affi- da\'it of service of a declaration in ejectment, was headed " John Doe on the demise of W. M. and T. C. R." The declaration was on the demise of T. C. R. and W. M. : — Held, that the variance was imma- terial. Doed. Montgomery Sf another v. Roe. 1 Dowl. & L. (igo ; Q. B. Variance in title of cause in writs of summons and distringas!] In the writ of summons the defendant was described as " C. K. ;" in the distringas, and also in the plaintifTs affidavits, in sho\\ang cause against a rule to set aside the distringas, he was described as " C. J. J. K., sued as C. K. :" — Held, that this was an irregularity. Swift v. Knight, 9 Law J., Ex. 6, over-ruled, see Jones v. Eldridge. Title of affidavit where there has been an interpleader issue.] An issue was directed under the Interpleader Act, and afterwards the claim was abandoned : — Held, on an application to the court for costs, that an affidavit in support of it must be entitled in tbe names of the parties in the original cause. Elliott v. Sparrow, 1 Har. & W. 370. Where money was paid into court in a cause entitled Levy v. Covle, and a feigned issue directed under the title of Lane v. Levy: — Held, that the affi'lavits for obtaining the money out of court ought to be entitled Levy v. Coyle. Levy v. Coyle, 12 Law J., Q. B. 294. Title of affidavit on motion to set aside attuchment.] Whe*" B 3 10 AFYIDANIT— Entitling of. tachment has issued in a cause, in moving to discharge the person arrested under it, the affidavit must be entitled the Queen against the person arrested in the original cause, and not simply in the original cause. Broivn v. Edwards, 14 Law J., Q, B. 17; 2 Dowl. & L. 520 ; B. C. — Patteson, J. Title of affidavit for judgment on a taxed bill of costsJ] Upon a motion for judgment, under 6 & 7 Vic. c. 73, s. 43, to enforce the payment of the bill of costs taxed, the affidavit must be entitled in the matter of the attorney, and not of any cause. Hair, in re, 8 Scott N. S. 231 ; 2 Dowl. & L. 269. But where in the name of the attorney as well as in the cause, the court held the affidavit well entitled. Vallance, in re, ib. 232. Entitling affidavit after the death of the plaintiff. '\ A rule was ob- tained in a cause of B. v. D. calling upon F. (an attorney) to render an account of and pay over money due to B., and the matters of this rule were subsequently referred by rule to the master, B. afterwards died. A rule was then obtained, calling upon F. to show cause why B.'s executors should not be made parties to the two former rules in- stead of B. This rule and the affidavits on which it was granted were entitled " B, deceased v. D:" — Held, that this was a fatal objection to the rule, there being no such cause as " B. deceased v. D." Bland v. Dax, 15 Law J., Q. B. 1 ; 10 Jur. 8, Q. B. A defect in the title of an affidavit may he amended and the applica- tion renewed.^ Where a rule has been discharged, on the ground of the defective title of the affidavits supporting it, the application may be renewed on the same materials. Regina v. Jones, 8 Dowl. 307. Defect in title or jurat may be amended and application renewed.^ Where a rule is discharged, on the ground that the affidavit, upon which the application rests, is defective in the title or in the jurat, the court will allow the application to be renewed upon the affidavit being amended and re-sworn. But a second application will very rarely be allowed, where there has been any defect in the body of the affidavit. Mayor S^-c. of Maidenhead v. The Great Western Railway Company. 13 Law J., Gt. B. 129. Title of affidavit in inquisitions in outlawry. '\ Where an inquisition has been returned into the office of the Queen's Remembrancer, the affidavits should be entitled accordingly. Manners, in re, 5 Mee. & AV. 278. Title of court in an affidavit of debt.] An affidavit of debt was sworn in Ireland before a commissioner of the Common Pleas and Exchequer: — Held, that the title of the court need not be prefixed to the affidavit at the time it was sworn, but that an affidavit taken before such commissioner, might be entitled afterwards, and used in either court. Perse v. Browning, 1 Mee, & W, 362 ; 1 Tyrw. & G. 864. Title of court omitted in affidavit, how cured.'] An affidavit sworn before a commissioner describing himself as a commissioner of the AYYIQ kNlT— Entitling of. 1 1 Exchequer and Common Pleas in England, may be used in either court though not entitled as of any. White v. Irving, 5 Dowl. 289. Objection to title of affidavit, when to be made.~\ An objection to the title of an affidavit must be entered into before the matter to which it relates is substantially decided. Viner v. Langton, 5 Dowl. 92. Title of affidavit to cancel bail bond.~\ An affidavit in support of a motion to cancel a bail bond, by reason of an arrest under a wrong name, must be entitled in the right name of the defendant. Finch v. Cocker, 3 Law J., Ex. 93 ; 2 C. & M. 412 ; 4 Tyrw. 285. Title of affidavit to set aside proceedings on hail bond.^ Affidavits on a motion to set aside proceedings upon a bail bond may be entitled either in the original action, or in the action against the bail. Ldnes v. Chetwode, 1 Law J., Ex. 79 ; 2 Tyrw. 177 ; 2 C. & J. 332 ; 1 Dowl. 321. Title of affidavit on showing cause against discharge of defendant in custody of inferior court.'] Where a suit is commenced in an inferior court, and the defendant sues out a habeas corpus cum causa, it ope- rates so far as a removal of the cause, that affidavits, on showing cause against the rule for discharging the prisoner, may be entitled in the cause. Perrin v. West, 4 Law J., K. B. 232 ; 5 N. & M. 291. Title of affidavit on motion for a prohibition^ On moving for a pro- hibition, an affidavit, entitled " In the Queen's Bench," between A., party agent, and B., party respondent, is bad, as there is no such cause in the Queen's Bench. Gwyn v. Evans, 12 Law J., Q. B. 68. Affidavit wrongly entitled, amended on payment of costs.] The title of an affidavit on which a rule has been obtained, may be amended on payment of costs, the opposite party being at liberty to file affidavits in reply. Rex v. Justices of Warwickshire, 5 Dowl. 382. Affidavit wrongly entitled — rule discharged without costs.] A rule for a new trial in an action of A. v. B., tried before a sheriff, was ob- tained upon an affidavit verifying the sheriff's notes, which was enti- tled B. plaintiff v. A. defendant. The rule was discharged without costs. Bodley v. Reynolds, 15 Law J., Q. B. 152. Title of affidavit where no cause is pending.] If there be no cause pending, it suffices to entitle the affidavit in the court. Davis v. Stan- bury, 3 Dowl. 440. If entitled as in a cause, they cannot be read ; and, therefore, if the matter to which the application relates is pending in another court, as in a motion for a certiorari (Ex parte Nohro, 1 B. & C. 267) ; Or where no cause is as yet pending, as in applications for writs of mandamus, quo warranto, criminal informations {Rex v. Robinson, 6 T. R. 642) ; Or showing cause against them (Rex v. Harrison, id. CO); The affidavits should not be entitled in a cause, but merely in the court ; nor should they be entitled in moving for an attachment for the non-performance of an award for setting aside an award, when 12 AFFIDAVIT— /Mra^ of. there is no cause in fact. (Bemn v. Sevan, 3 T. R. 60 ; Bainbridge v. Houlton, 5 East, 21). Title of affidavit to strike an attorney off the roll for misconduct.'] The affidavit to {/round an apphcation to strike an attorney off the roll for misconduct in a cause, may be entitled in the cause, though judg- ment has been obtained in it. Stephens v. Hill, 10 Mee. & W. 28 ; 1 Dowl. N. S. 66y. Title of affidavit on motion to set aside proceedings in error.] In moving to set aside proceedings in error, the affidavit must be entitled in the cause in error, and not in the original. Gandell v. Rogier, 4 B, & C. 862; 7 D. & R. 259. And on a writ of false judgment from an inferior court, the affidavit should be entitled in the cause in error. Watson v. Walker, 1 M. & Scott, 437; 8 Bing. 315. Title of affidavit on mot ion for certiorari.] The affidavits to support a rule for a certiorari were entitled, " In the matter of the prosecution of The Queen «j. R, Walworth and J. Kent:" — Held, that the affidavits were irregular and could not be read. Reg. v. Walworth, 10 Jur. 967, B. C.— Patteson, J. Title of affidavit must accord with the ride.] Affidavits used in showing cause must be entitled in the same way as the rule. In re Wilkinson Grantham, 11 Jur. 242, B. C. AFFIDAVIT— Jwrai of Affidavit sworn before a commissioner.] An affidavit entitled in the Court of Exchequer, and purporting to be sworn before J. L. master extraordinary in the Court of Chancery," is defective, for not showing that J. L. was a commissioner for taking affidavits in the Court of Exchequer. Rule discharged with costs. Frost v. Hay ward, 12 Law J., Ex. 84. Where an affidavit is duly entitled in the court, a jurat in these terms, " Sworn before A. B. a commissioner, " &c., is sufficient. Burdikin v. Potter, 9 Mee. & W. 13 ; 11 Law J., Ex. 82. Also before H. B., by commission is sufficient. Hopkins v. Pledger, 12 Law J., Q. B. 313 ; and Fairbrass v. Pettit, 13 Law J., Ex. 121. Affidavits sworn before a commissioner must show by the jurat that they were sworn within his jurisdiction. Cass v. Cass, 13 Law J., Q. B. 52 ; 1 Dowl. & L. 698, Q. B. Defective jurat — rule obtained on — discharged with costs.] Rules obtained on affidavits, defective in the jurat, will be discharged with costs. Frost V. Heyivood, 6 Jur. 1045, Ex. This rule was acted upon in an application for an attachment. Cobbttt V. Oldfield, MS. Exch. H. T. 1847. Defect in jurat of affidavit, how cured if a rule has been granted.] A party who has obtained a rule nisi on an affidavit which is defective, on account of the jurat not stating the names of the deponents, cannot AFTIDAYIT— Jurat of. 13 on cause being shown, support his rule by a fresh affidavit ; but the court wall enlarge the rule in order to allow time for a fresh affidavit to be filed. Goodricke v. Turley, 2 C. M. & R. 637; 4 Dowl, 392; 1 Tyrw. & G. 146. Omission of the word " court" in the jurat of an affidarit.'\ An affidavit entitled in one of the superior courts, and sworn before a judge of that court, as stated in the jurat, " at the central criminal, in the city of London," held sufficient. Thomas v. Stannaway , 13 Law J., Q. B. 263; 2 Dowl. & L. 111,Q. B. Erasure in the jurat of an affidarit.] The first page of an affidavit not being capable of containing the whole of the jurat, the words " a commissioner for taking affidavits in this court," were erased from it, and were, together with the rest of the jurat, placed on the back of the page: — Held, that the erasure did not vitiate the affidavit. Wills V. Dawson, 12 Law J., Ex. 24. Erasure or interlineation in an affidavit.] An erasure by a line drawn through part of the jurat, vitiates the affidavit. WiUiarns v. Clough, 1 Ad. & E. 376. But where the real date of the jurat was January 31, but the 3 ap- peared to have been written over a 2, Parke, B., held it to be sufficient, as it was neither an erasure nor interlineation. Jacob v. Hungate, 3 Dowl. 456, Ex. Erasure of immaterial words in jurat allowed.'] The jurat of an affidavit is not vitiated by the erasure of words which form no neces- sary part of the jurat, and might be separated from it without altering the sense. Dawson v. Wills, 6 Jur. 1068, Ex. It is no objection to an affidavit that the words " before me"' in the jurat are struck out, and the words " by the court " introduced. Austin v. Grange, 4 Dowl. 576. In a joint affidavit the names of each deponent mtist be stated.] The rule is imperative, that upon every affidavit made by two or more de- ponents, whether sworn in court or elsewhere, it must appear in the jurat that they were severally sworn. Pardoe v. Terrett, 12 Law J,, C. P. 143. The names of all the deponents should appear in the jurat. Houlden V. Fasson, 6 Bing. 236 ; 3 M. & P. 559. Where the jurat of an affidavit used in support of a rule, is defective in not containing the names of the deponents, the court will discharge the rule with costs. Cobbeft v. Oldf eld and others, 16 Law J., Ex. 150. Where the names of the deponents are omitted in the jurat, through the inadvertence of the judge's clerk, it will be amended by direction of the judge. Ex parte Smith, 2 Dowl. 607. Date of jurat defective.] An affidavit purporting to be " sworn in court this 9th day of November, lt545," being Sunday, semble, is defective. Doe d. Williamson v. Roe, 3 Dowl. & L. 32S. The want of a date in the jurat of an affidavit, will be ground for discharging a rule with costs. Blackwell v. Allen, 10 Law J. Ex. 65. 14 AFFIDAVIT— 0/iHm^5. Description of the judges' chambers in the jurat of an affidavit.] An affidavit, the jurat of which stated it to be sworn at the Judges' Cham- bers, Chancery Lane, in the county of Middlesex, before a judge of the Court of Common Pleas, in the absence of any counter affidavit, held sufficient. Hemsworth v. Brian, 14 Law J., C. P. 134. Jurat of an affidavit sworn before a judge or a commissioner.] An affidavit sworn at a judge's chambers, need not state in the jurat that it was sworn before the judge. Empey v. King, 14 Law J., Ex. 48 ; 13 Mee. & W. 519. If sworn before a commissioner it is necessary to be so stated. The Queen v. The Inhabitants of Bloxham, 2 Dowl. & L. 168 ; 14 Law J., Q. B. 13, and The Queen v. The Inhabitants of Norbury, 15 Law J., Q. B. 264. Jurat where the deponent is an illiterate person.] When an affidavit is sworn to by an illiterate person, it must appear in the jurat to have been read over to him and explained by the officer. Haynes v. Powell, 3 Dowl. 599. The jurat should also state that the deponent understood it, or it cannot be received. Haynes v. Powell, ib. An affidavit of a marksman, which exjjresses in the jurat that A. B. had been first sworn to the fact that he had read over and explained the affidavit to the marksman, and that he understood it, is insuffi- cient ; the officer himself ought to explain it. Rex. v. Sheriff of Mid- dlesex, 4 Dowl. 765. An affidavit sworn before a consul abroad not admissible.] An affi- davit ot service of a rule sworn before the British consul, resident in Paris, is not sufficient. Williams v. Welch and another, 15 Law J., Q. B. 7 ; 3 Dowl. & L. 357 ; Le Veux v. Berkeley, 2 Dowl. & L. 31 ; 13 Law J., Q. B. 244. Description of county in jurat.] An affidavit to found a criminal information may be read, though the county in which it is sworn does not appear in the jurat, provided it appears in the affidavit itself. Rex V. Byrne, 2 N. & P. 152; 6 Dowl. 36; and Grant v. Fry, 8 Dowl. P. C. 234. When an affidavit is sworn before a commissioner, the county should be stated in the jurat. The King v. Cockshaw, 2 N. & M. 378 ; and Rex V. Burn, 7 Ad. & E. 190. Jurat not signed when sworn, consequence of.] Where a judge's order, under 1 & 2 Vic. c. 110, s. 3, for arresting a party, and a capias thereon, issued on an affidavit, which was sworn before, but not signed by the judge until after the execution of the capias, the court set aside the capias, and all subsequent proceedings, for irregularity, with costs. Bill v. Bament, 10 Law J., Ex. 302 ; 8 Mee. & W. 317. AFFIDAVIT— 0/ Merits. Affidavit of merits, form of.] An affidavit in support of a rule for AFY1BA.YIT-' Filing of. 15 setting aside a judgment, signed by the plaintiff for want of a plea, alleged that the defendant had merits and a good cause of defence to the action : — Held, insufficient. The affidavit must express that the defendant hath a good defence on the merits thereof. Lane v. Isaacs, 3 Dowl. 652. An affidavit of merits, that the defendant has a good and sufficient defence on the merits, without words applying it to tlie particular action, is insufficient. Tate v. Bodfield, 3 Dowl. 218. The belief of merits on advice of counsel insufficient?^ An affidavit of merits made by the clerk of the defendant's attorney, in which he deposed that he had the management and conduct of the defence of the action, and that the defendant had been advised by counsel that he (the defendant) had a good defence to the action on the merits, and which the deponent verily believed to be true, was held to be insuffi- cient. Nash V. Swinburn, 4 Scott N. R. 326; 1 Dowl. N. S. 190. The necessary party to swear to merits.'] An affidavit of merits, in support of an application to set aside a regular judgment, must appear to be made either by the defendant, his attorney, or agent, or some person who has been concerned in the cause, in such a way as to make him acquainted with its merits. Rowbotkam v. Dvpree, 5 Dowl. P. C. 557. And if sworn by the managing clerk of the defendant's attor- ney, must state that he had the management of the particular cause. Doe d. Fish v. M'Donnell, 8 Dowl. 501 ; 4 Jur. 578. A good defence must be sworn to.] It is not a sufficient affidavit of merits to say, that the deponent believes the defendant has a " defence on the merits ;" he should say " a good defence." Kenney v. Hutch- inson, 4 Jur. 106, Ex. An affidavit of merits, made by the defendant's attorney as to his belief, from instructions received, is insufficient, where the defendant himself might make the affidavit. Brown v. Austin, 4 Dowl. I6l. Considering a good defence on the merits insufficient.] Where judg- ment has been signed for want of a plea, an affidavit of the defendant's attorney, which states, " considering he had a good defence on the merits," is not sufficient to let in the defendant to plead on terms. Pope V. Mann, 2 Mee. & W. 881 ; 6 Law J., Ex. 204. The clerk of the defendant's attorney " is apprised and believes" in- sufficient.] An affidavit of merits, by a clerk of the defendant's attor- ney, "that he is apprised and beUeves that the defendant has good grounds of defence upon the merits," is insufficient. Bromley v. Gerish, 13 Law J., C. P. 16; 6 Man. and G. 750 ; 1 Dowl. & L. 768. AFFIDAVIT— Ft7in^ of. Affidavits when filed may be used by either party.] Where a rule is enlarged from one term to another, and affidavit filed by a certain day before the term, and the other ])arty takes office copies of them, he has a right to use them, although the party filing them may not he desirous of doing so. Price v. Huyman, 4 Mee. & W. 8 ; 7 Law J., Ex. 297. 16 AFFIDAVIT— K/m// of. Taking copies of affidavits filed is a bar to an objection as to their being filed in time.'] Where a rule to set aside an award was enlarged from Easter term to Trinity term, upon the term that all affidavits lobe used in showinor cause should be filed four days before the commencement of the latter term, and on showinj? cause, it was souf^ht to object to the reading of the affidavits, on the ground that they had not been duly filed ; it was held, that the party seeking to raise the objection was estopped from doing so, by having taken office copies of the affi- davits objected to. Re James Mackay and others, 1 Dowl. & L. 206, Q. B ; 12 Law J., Q. B. 337. Affidavits used on motions must be filed.] In all applications to t?ie court, whether successful or not, the affidavits in support of them must be filed. Johns v. Mills, 1 Dowl. 510; and Exparte Dicas, 2 Dowl. 92 ; and In re Jeffery, I C. & M. 71. Filing affidavits on a motion on the revenue side of the Exchequer.] Semble, affidavits ought to be filed one day before the rule comes on, on the revenue side of the Exchequer. Attorney-General v. Jeyes, 2 C, & J. 352. Filing affidavits on enlarged rules.] A rule having been enlarged upon the application of the defendant, who was allowed to use sup- plemental affidavits, which, however, had not been filed, it was ob- jected, that it could not be done, because it was not part of the terms of the rule. Barker v. Richardson, 1 Y. & J. 362. In such case the affidavit intended to be used must be filed within the time prescribed by the rule. Turner v. Unwin, 4 Dowl. 16 ; and Gilson V. Carr, 4 Dowl. 618. And the court will not allow them to be filed afterwards, unless it is clearly shown that the not filing them arose from inevitable acci- dent. Wright v. Lewis, 8 Dowl. 298. Filing affidavits on a reference to the master.] Where a matter is referred to the master, and he, in the exercise of his discretion, has refused to allow further affidavits to be filed after a particular day, the court will not interfere with that discretion, by requiring him to re- ceive further affidavits. In re Hall v. Anderton, 8 Dowl. 326. For leave to use affidavits not filed in time — a rule nisi only.] Where a party is under terms, upon the enlargement of a rule, to file affi- davits by a certain day, and he omits by excusable accident to do so, the court will only grant a rule nisi for him to use such affidavits. Pryor and another v. Swaine, 13 Law J., Q. B. 214. To compel a party to file affidavits used.] The court will not en- tertain a substantive motion to compel a party to file affidavits pre- viously used by him, unless he has been first requested to do so. Pilmore V. Hood, 8 Dowl. 21, and Ex parte Elderton v. Lucena, 2 Dowl. 568. Evlargivg the time for filing affidavits.] The court will enlarge the time for fihng affidavits, when the parties have not been yet before it. AMENDMENT. 17 and the rule is due, though the day specified by the rule is passed. Reg. V. Keen, 11 Jur. 308. Where an affida\'it, sworn before a commissioner, was by that commissioner's own act sent up to the court in an imperfect state, the court, though the time for filing affida\-its had passed by, allowed it to be sent back to be made perfect, first being satisfied that it had origincdly been made in due time. Ex parte Hall, S Law J., Q.B. 211. AMENDMENT. Amendments, in the discretion of the court-l Amendments are only permitted when necessarj' for the success of the proceedings, and are entirely in the discretion of the court or judge to whom the ap- phcation is made ; they are allowed only in the furtherance of justice. Rex V. Corporation of Grampound, 7 T. R. 699. But an amendment will never be allowed where the proposed altera- tion would operate prejudicially upon the rights of third persons. Hunt V. Fasman, 4 M. & S. 329— Lord Ellenborough. The court has refused to interpose to control the terms of an order for amendment made by a judge at chambers. Rex v. Archbishop of York. 1 Ad. & E. 394 ; 3 N. & M. 453 ; and Doe v. Errinc/ton, 3 N. & M. 646. An order to amend may be abandoned.] After obtaining an order that the party shall be at liberty to amend, it may be abandoned. Black V. Sanrjster, 1 C. M. & R. 521 ; 5 T)tw. 171 ; 3 Dowl. 206. But notice of his intention to abandon should be given. Solly v. Richardson, 6 Dowl. 774. Amendment of record at Nisi Prius.'] "Where there is no replica- tion on the record, the judge will not at the assizes allow one to be added without the consent of the defendant. Roiclinson v. Roanfre, 6 C. & P. 551. A count for goods sold was permitted to be added to the record, which was in the declaration and issue, but not copied into the Nisi Prius record. Ernest v. Bruce, 2 M. & Rob. 13. A plea concluding to the country, with an &c. is sufficient without introducing a formal similiter on the record. Clark v. Nicholson, 6 C. & P. 712. Where a plaintiff had obtained from a judge at chambers an order for leave to amend his declaration on payment of costs, but had not made the amendment, the judge who tried the cause refused to allow the declaration to be amended at the trial, under the 3 & 4 Will. IV. c. 42. s. 23. Geeckie v. Monck, 1 Car. & K. 555. On the trial of an action against officers of a Court of Requests, the Nisi Prius record contained only a plea of not guilty, without the words "by statute" being added. The defendant's counsel wished to amend, by adding the words " by statute" to the Nisi Prius record. The judge would not allow the amendment, as it could not be shown that the words " by statute" were on the defendant's plea ; — but semble, that if it could have been shown that the svords " by statute" had been in the issue delivered by the plaintiff's attorney, the judge would have allowed the amendment. Forman v. Dawes, 1 Car. & M. 127. 18 AMENDMENT. Potoer of the court to revise an amendment made at Nisi Prius.^ Under the 9 Geo. 4, c. 15, the court cannot revise an amendment made by a judge at Nisi Prius. Parks v, Adge, 1 C. & M. 429 ; 1 Dowl. 643 ; and Pullen v. Seymour, 5 Dowl. 164, Ex. Leave to amend after demurrer by a judge at chambers^ A jud^i^e at chambers may give leave to amend after demurrer on payment of only a nominal amount of costs ; and the court will not overrule his exercise of discretion, even if they differ from him on the merits of the particular case. Tomlinson v. Bolland, 4 Q. B. 642. Amendment of declaration after the cause was made a remanet.l^ After a cause stood for trial, and was made a remanet, the plaintiff obtained leave to amend his declaration and particulars, the defendant to be at liberty to plead, de novo. To the amended declaration, the defendant paid money into court, which the plaintiff took out : — Held, that the plaintiff was not entitled to the costs of preparing for the trial. Wilton v. Snook, 1 Dowl. & L. 964, Ex. Amendment of pleadings in a special case.'\ A term in a special case, that the court should be at liberty to amend any part of the pleadings as they may think proper, gives no additional power beyond that possessed by a judge at Nisi Prius, under stat. 3 & 4 Will. 4, c. 42, s. 23. Chapman v. Sutton, 3 Dowl, & L. 646 ; 15 Law J., C. P. 166. Amendment by adding a plea after judgment on demurrer.'} Where an action had been brought against a surety under 1 & 2 Vic. c, 110, for not rendering his principal, and a plea intended as an excuse for the render had been held bad on demurrer, the court, in the following term, allowed a plea similar in substance to be added, counsel not having been present to ask to amend when judgment was delivered. Hayward v. Bennett, 16 Law J., C. P. 95. Amendment of issue.'] In general the issue maybe amended in any stage of the proceedings. Cox v. Painter, 1 N. &P. 581 ; 6 Ad.& E. 491. An amendment may be made after notice of trial given and coun- termanded. Porin V. Duke of Buckingham, 8 Moore, 584. After a cause had been taken down to the assizes and the record withdrawn, the declaration was amended by inserting new counts, varying the statement as to the same cause of action. Morris v. Evans, 1 Dowl. 657, Ex. After issue joined in trover, and a peremptory rule to try, the court refused leave to substitute a count in detinue and add one in debt. Green v. Mitton, 4 B. & Ad. 369. Amendment of the jury process where the cause is a remanet.] No judge's order is necessary, under Reg. Gen, H. T. 4 Will. 4, s. 18, for amending the day of the teste and return of the distringas, &c., or of the clause of Nisi Prius, in a cause which has been made a rema- net and continues in the paper. It is sufficient if the jury process and Nisi Prius record be re-sealed as before the rule. A judge's order for amendment, as mentioned in the rule, is required only in cases where is was formerly necessary to repass the record. Wells v. Day, 8 Ad, & E, 941. AMENDMENT. 19 Amendment of postea.'] The court will not review or question an amendment by a judo;e of the postea, having no power over his notes. Sandford v. Alcock, 10 Mee. & W. 689 ; 2 Dowl. N. S. 463. Amendment of the jury process.^ If there be no return of the dis- tringas juratores, nor any panel returned and annexed thereto, it is fatal on a writ of error. Rogers v. Smith, 1 Ad. & E. 772 ; 3 N. & M. 760. Formal amendments not being variances.'] Under the 3 & 4 Will. 4, the date of a writ of summons, when omitted, may be inserted in the record. Cox v. Fainter, 1 N. & P. 581 ; 6 Ad. & E. 491. An order for amendment cannot be rescinded after receiving costs.] Where a party has received the costs occasioned by an amendment made in the record under a judge's order, he cannot move to rescind the order. Simmons v. King, 2 Dowl. & L. 786 ; 14 Law J., Q. B. 195. Amendment by pauper.] A pauper plaintiff is not entitled, as of right, to amend without payment of costs. Foster v. Bank of Eng- land, 2 Dowl. & L. 790; 14 Law J., Q. B. 178. Amendment of a judgment, through a mistake by the court.] The court will amend a judgment in a subsequent term to that in which it was pronounced, where, upon the merits, the party in whose favour it was given was clearly entitled to the amendment, and where the error proceeded from a mistake by the court, as to the sum the party was entitled to recover. Rogers v. Humphreys, 4 Ad. & E. 299 ; 5 N. &M. 511; 5 LawJ., K. B. 65. Amendments in penal actions.] The same rules prevail as to amend- ments in penal actions as are applicable in other actions; and a declaration was allowed to be amended a second time in a penal action, it not appearing that there had been any unnecessary delay. Jones V. Edwards, 3 Mee. & W. 218 ; 7 Law J,, Ex. 70 ; 6 Dowl. 369. Amendment of verdict after taxation of costs.] A verdict may be amended according to the actual finding of the jury ; and where a verdict had been entered by mistake upon a certain issue, and the master taxed the costs according to the substantial merits of the cause, and as if the mistake had not been committed ; it was held, that the judge before whom the cause was tried should amend the postea, and enter the verdict, so as to remove any incongruity which might ap- pear upon the record, from having the allowance of costs one way and the judgment another. Ernest v. Browne, 4 Bing. N. C. 162 ; 7 Law J., C. P. 145. Amendment by order pending a rule to set aside the proceedings for irregularity .] A rule nisi had been obtained for setting aside a pro- ceeding for irregularity; and, pending the rule, an order was made at chambers for amending the proceeding : — Held, that the order was improperly made, and that the regular course was to apply for a cross rule to amend. Bfxll v. Haydon, 9 Jur. 711 ; B. C. — Coleridge, J. 20 APPEARANCE. The record or process may be amended after writ of error brought. '\ A court of error will not review the propriety of an amendment made by the court below, in its record or process, though such amendment was made after writ of error brought. Scales v. Cheese, 1 Dowl. & L. 657, Ex. Amendment of record after judgment in error."] Semble, that the court out of which a record issues has no power to amend the record after the judgment of a court of error. Jackson and others v. Galloway, 2 Dowl. & L. 839, C. P. Amendment of information by the crown.] A rule, on the partof the Attorney-General, to amend an information at the suit of the crown, is absolute in the first instance. Attorney -General v. Ray, 11 Mee. & W. 464; 1 Dowl. and L. 278. Amendment of declaration after judgment signed.] Where a writ had been issued, and a declaration delivered, in which a blank was left for the christian name of the defendant, to which he pleaded, and afterwards gave a written consent, signed with his name in full, to a judge's order for payment of the debt, on which judgment was signed, the court a year and a half after the judgment was signed, amended the declaration and judgment by inserting the christian name of the defendant in order to enable the plaintilF to proceed to outlawry. Wood v. Hume, 15 Law J., Q. B. 319. APPEARANCE. Personal service of writ necessary to entitle plaintiff to enter appear- ance^ Where the only service of the writ of summons by the officer was, that after two denials, on seeing the defendant at the window, he told him in a loud tone that he had a writ against him at the plaintiff's suit, and holding out the copy, threw it down, and left it in the garden in the defendant's presence : — Held, not a sufficient personal service. Heath v. White, 2 Dowl. & L. 40; 13 Law J., Q. B. 218 ; and Goggs V. Lord Huntingtower, 12 Mee. & W. 503. See p. 21. What is necessary to entitle plaintiff to enter an appearance.] The court has no power to grant permission to a plaintiff to enter an ap- pearance for the defendant who has admitted the receipt of the copy of a writ left at his dwelling-house, without the usual affidavit, and the indorsement of the day of service upon the writ. Russell v. Lowe, 11 Law J., Ex. 369 ; 2 Dowl. 233, Ex. Circumstances under which the court will allow the plaintiff to enter an appearance for the defendant. Aston v. Greathead, 2 Dowl. N. S. 547, Ex.; 6 Jur. 1000. Where in an affidavit in support of a motion to enter an appearance for a defendant upon a return of nulla bona, and non est inventus, it is not stated that a search for an appearance has been made with a view to ascertain whether it has been entered after the return of the writ ; the court will consider the affidavit insufficient, and refuse a rule to enter an appearance. Reid v. Ford, 2 Dowl. N. S. 944 ; 1 2 Law J., (i. B. 249, B. C— Wightman, J. APPEARANCE. 21 Appearance entered, the defendant having acknowledged hy letter the receipt of the writ^ If after ineffectual attempts to serve defendant personally, a copy of the writ of summons has been left at his place of abode, and he has admitted the receipt of it by letter, plaintiff may have leave to enter an appearance for him, but the application must be supported by an affidavit properly verifying the handwriting of the letter. Rolfe v. Paget, 1 B. C. Rep. 78 — Wightman, J. Appearance cannot be entered without actual personal service.'] The court will not in future allow an appearance to be entered for a de- fendant, unless there has been actual personal ser\'ice of the writ ; it will not be enough to show that the writ has come to the hands of the defendant. Goggs v. Lord Huntingtower, 12 Mee. & W. 503 ; 8 Jur, 66 ; 1 Dowl. & L. 399. Amendment of appearance.^ A defendant who enters an appearance by a wrong name cannot enter another, but should amend the first. Bate V. Bolton, 4 Dowl. 677, Ex. ; 2 C. M. & R. 365. Appearance entered by the plaintiff.] An appearance may be en- tered by the plaintiff long after the writ has issued and after the defendant has given a cognovit. Richardson v. Daley, 7 Dowl. 25, Ex. An appearance entered by the plaintiff after the eighth day, renders one subsequently made by the defendant a nullity. Davis v. Cooper, •2 Dowl. 135, Ex. Where a defendant improperly got possession of the writ of sum- mons, the court allowed an appearance to be entered by the plaintiff, and ordered the defendant to pay the costs. Brook v. Edridge, 2 Dowl. 647, Ex. If a plaintiff irregularly enters an appearance for the defendant, the latter must apply to the court as soon as such steps are taken by the former as show his intention to proceed on the appearance. Strange v. Freeman, 5 Dowl. 407. The entry of an appearance by a plaintiflp for a defendant, does not operate as a waiver of an objection to the copy of the writ. Chalkley V. Carter, 4 Dowl. 480; 1 Tyr\v. & G. 210. Appearance by plaintiff, when may be entered.] A plaintiff has four terms from the service of a writ of summons, within which to enter an appearance for the defendant, if the latter does not appear. Liddell V. Cranch, 5 Dowl. 662, K. B. Appearance by plaintiff for infant defendant] An appearance en- tered by the plaintiff, under the statute, for an infant defendant, held a ground of error, and set aside with the subsequent proceedings, but without costs. Stephens v. Lowndes, 3 Dowl. & L. 295. Where an appearance had been entered for a minor, and interlocu- tary judgment obtained against him by default, the ])laintiff having no knowledge of the fact of minority, the court will set aside the proceedings on terms, Jamesv. Aswell, 11 Jur, 562; B. C. Appearance entered by the plaintiff for the defendant.] Leave cannot be obtained for a plaintiff to aj)pear for a defendant, unless the 22 APPEARANCE. court is satisfied that every means to find him has been tried in vain. Saunderson v. Bourn, 2 Dowl. 338, Ex. And what those means were must be disclosed to the court. Cope- land V. Nevill, 3 Ad. & E. GGS. Appearance entered by one partner for another — bad.'\ One partner cannot authorize an attorney to enter an appearance and submit to judgment for a co-partner. The co-partner having been taken in ex- ecution upon the judgment, and never having been served with a summons, or been cognizant of the action, the court set aside the appearance and other proceedings with costs. Hambridge v. De la Crouee and another. 16 Law J., C. P. 85 ; 10 Jur. 1096. Appearance entered for a defendant in a lunatic asylum.^ The court allowed an appearance to be entered for a defendant who was confined in a lunatic asylum, upon an affidavit of notice to the keeper, of the plaintiflf's intention to enter an appearance for the defendant, and to proceed thereon to judgment and execution, it being contrary to the rules of the asylum to allow a personal inter- view with the lunatic. Humphries v. Griffiths, 6 Mee. & W. 89; 9 Law J., Ex. 180. Entering appearance ivhere Easter intervenes^] When the last of the eight days after the service of a writ of summons falls on any day between the Thursday before, and the Wednesday after Easter- day, then the Wednesday after Easter-day is considered the last of such eight days, and the plaintiflf may enter an appearance for the defendant on the Thursday. Harris v. Robinson, 15 Law J., C. P. 208 ; S. C. nom. Harrison v. Roberts, 10 Jur. 458. No appearance entered before judgment signed.] The omission on the part of the plaintifi"to appear, as well as the defendant, will ren- der the proceedings altogether null. Roberts v. Spurr, 3 Dowl. 551; B.C. But in IVilliams v. Strachan, 1 N. R. 309, which was not referred to by the counsel or the court in the above case, the Court of Com- mon Pleas held, that, if a defendant accept a declaration and act as if an appearance has been entered for him, the court will not after- wards permit him to set aside a judgment for want of an appearance having been entered. An appearance should be entered before judgment is signed on a judge's order.] An appearance should be entered for defendant before judg- ment is signed m pursuance of a judge's order; but the omission to do so does not render the judgment a nullity, but is a mere irregu- larity, and cured by lapse of time. Hackin v. Hassells, 1 Dowl. & L. 1006, Ex. Appearance after a distringas, and a summons to stay proceedings.] Where after a distringas had issued, the defendant took out a sum- mons to stay proceedings, on payment of debt and costs, but drew up no rule, the court allowed an appearance to be entered for him under the statute. Watkins v. Hayward, 15 Law J., Q. B. 46. APPEARANCE. 23 Appearance improperly entered. \ Where an appearance is impro- perly entered, it may, on application, be struck out. Paget v. Thomp- son, 3 Bing. 609. And if not entered according to tbe 2 Will. 4, c. 39, it may be treated as a nullity. \^ arren v. Low, 7 Dowl. 602. An appearance entered by the plaintiflP's attorney for the defendant is irregular, if it omits the words " according to the statute," as i)re- scribed in the form contained in the schedule to 2 Will. 4, c. 39. Codrington v. Curlewis, 9 Dowl. 968. An appearance having been entered for one of several defendants, who had not been served with process, by the attorney for the other defendants, though without any authority from such defendant, and judgment by default hanng been signed against all the defendants, held, that the judgment was irregular as against the defendant who had not been served, and was accordingly set aside by the court, but without costs. Bayley v. Brickland and others, M.S., Exch. T. T. 1847. Appearance irregularly entered, motion thereon!] W^here service of a writ of summons is irregular, and an appearance has been entered and a declaration filed thereon, the defendant should seek to set aside the appearance, and not the declaration. Brooks v. Roberts, 14 Law J. 168, C. P. ; 2 Dowl. & L. 13; 1 Man. Gr. & Sc. 62. To set aside appearance entered sec. stat. and all subsequent proceed- ings.] The defendant's affidavit stated, " that he had never at any time been either personally or otherwise served with any writ of sum- mons, or any copy of a writ of summons or other process whatever at the suit of the above-named plaintiflp." A rule to show cause was refused ; the court intimating that the affidavit must not only state that the defendant has not been served, but that the copy of the writ has not come to his possession. Billing v. Turner, M.S., Exch. T. T. 1846. Undertaking to appear by an attorney.] An undertaking by an attorney to appear must be enforced v,'ithin a reasonable time ; and therefore a motion, made in Michaelmas term, to compel an appear- ance, pursuant to an undertaking given by him on the Sth March, is too late. Balls v. Strutt, 7 Eaw J., Ex. 7. Appearance sec. stat. after appearance by defendant.] The entering of an appearance sec. stat. after an appearance duly entered by the defendant is an irregularity only, and not a nullity. A defendant, therefore, who wishes to set aside such appearance, must do so before the plaintiiF has taken another step. And where a judge's order was obtained by a defendant for setting aside such appearance, but not served until after the plaintiff had signed judgment for want of a plea: — Held, that the defendant had waived the irregularity, and that the plaintiff's proceedings were regular. Mapel v. JVoodgate, 10 Jur. 839, B. C. ; 1 B. C. Rep. 79- Appearance sec. stat. by a plaintiff in person.] A plaintiff in person having entered an appearance sec. stat. for the defendant, and pro- ceeded to judgment ; on a motion to set aside the appearance and 24 ARBITRATION. the proceedinprs thereon, and for the defendant to be at Uberty to appear : — Held, that the appearance was regular and the court refused a rule. Smith v. Wedderburn ; 10 Jur. 952; 16 Law J., Ex. 14. Appearance entered sec. stat. and subsequent appearance by defen- dmit.] If the defendant neglects to enter an appearance to the writ within eight days, and the plaintiff enters an appearance for him, and then the defendant enters an appearance and gives notice of it, the ])laintifF may proceed as if no such appearance had been entered, and may sign a judgment without a demand of plea. Davis v. Cooper, 2 Dowl. 135, "Ex. ARBITRATION. Arbitrators.'] There is no ground for the distinction between legal and unlearned arbitrators. Each is equally conclusive judge of matters referred to him, whether of law or of fact. Jupp v. Grayson, 5 Tyrw. 150; 4 Law J., Ex. 8; 1 C. M. & R. 523. Arbitration — notice of meetinrjs.'] One of the parties to the deed of submission objected to the award, on the ground that he had no notice of two meetings, at the first of which no business was transacted, and the meeting adjourned pro forma ; and at a second meeting, at which he attended and delivered in a protest against the proceedings, upon a ground different from the want of notice : — Held, that the want of notice of the first meeting was, under the circumstances, no ground for setting aside the award ; and that the party had, by his protest, waived the want of notice of the second meeting. In re Morphett, 10 Jur. 546 ; B.C.— Coleridge, J. If arbitrator neglects to enlarge the time for making his award, the court cannot.] Where the time for making an award had, through the neglect or inadvertence of the arbitrator been allowed to expire in April, 1839 ; and no subsequent step was taken by either party in the reference, until Janviary, 1841, the court refused an application made by the defendant in the cause referred, and opposed by the plaintiff, to enlarge the time for the arbitrator to make his award. The court does not possess the power, under 3 & 4 Will. 4, c. 42, s. 39, to compel parties to proceed with a reference, the time for making the award having expired, where the arbitrator has had the power to enlarge the time, and has not exercised it. Lambert and others v. Hutchinson, 10 Law J., C, P. 213. Arbitrator refusing to certify, under 3 Sj- 4 Vic. c. 24, application to the court.] An action having been brought to try a right, was referred by an order of reference, which contained a clause that the arbitrator was to have all the powers to certify that a judge would have had, and also, that the court might, if they thought fit, send the award back to be amended. The arbitrator having found for the plaintiflF, with one farthing damages, but having refused to certify under 3 & 4 Vic. c. 24, s. 2, that the action was really brought to try a right, this court re- fused to send back the award to be amended. Perry v. Du7tn, 12 LawJ., Q. B. 351. ARBITRATION. 25 Arbitration, costs allowed altJiough. no certificate under 3 S)- 4 Vic. c. 24.] An action on the case for diverting a watercourse was, after issues joined on pleas of not guilty, and denying the plaintiff's right to and user of the water, referred by a judge's order to arbitration, by which the costs of the suit were to abide the event of the award, but no power was given to the arbitrator to certify under 3 & 4 Vic. c 24, s. 2. The arbitrator found all the issues for the plaintiff, and assessed the damages on the first issue at 6(f. The plaintiff" was held to be entitled to full costs. Griffiths y. Thomas and another, 15 Law J., Q. B. 336. Authority of arbitrator to raise any point of law.'] Where, by the terms of the order of reference, an arbitrator is to be at liberty to raise any point of law for the opinion of the court, he is not bound to do so ; such a clause is only an enabling one, and not compulsory. Wood V. Hotham, 5 Mee. & W. 674. Without any clause in the order to that effect, an arbitrator has power to state a case for the opinion of the court. lb. An arbitrator cannot without leave reserved in the submission state a case for the opinion of the court ; but where by the terms of the order of reference he is empowered to state any point for the oplnioa of the court, " at the request of either party," it is not sufficient to state, as an objection to the award, that he has not raised such points as he was requested by the parties to raise, but it should be distinctly specified what such points were. Bradbee v. The Governors of Christ's Hospital, 11 Law J., C. P. 209. Documentary evidence received by arbitrator?^ On an arbitration, the plaintiff tendered in evidence certain books, containing entries made by himself, which being objected to as inadmissible, the arbi- trator stated that the same strictness was not required as on a trial at Nisi Prius,and received the books in evidence: — Held, no ground for setting aside the award for misconduct on the part of the arbitrator. Hagrjer v. Baker, 14 Mee. & W. 9 ; 14 Law J., Ex. 227. On a motion summarily to enforce an award, the conduct of the arbitrator will not be gone into by the court. Motiley v. Bray, 11 Jur. 521. Arbitrator not bound by particulars of demand, unless same be brought to his notice.] A cause was referred at Nisi Prius, and a verdict en- tered for the plamtiff by consent, for the damages in the declaration, which exceeded the amount claimed in the particulars of demand. The arbitrator awarded that the verdict should stand at the amount for which it was entered : — Semble, that the particulars of demand were not necessarily before the arbitrator, and that if the defendant intended to limit the plaintiff's demand to the amount claimed by the particulars, he ought to have brought the particUiars before the arbi- trator. Kenrick v. Phillips, 7 Mee. & W. 415. Umpire must examine witnesses if required.] Where matters in dispute are referred to arbitrators, and, in case they shall not agree, to an umpire, it is the duty of the umpire to examine the witnesses, and the court will set aside his award, after an apphcation to him for that c 26 ARBITRATION. purpose, and a refusal, unless it appear distinctly that both parties have consented to his receiving the evidence from the arbitrators, and making his decision on that alone. In re Salkeld and others, assignees of Stringer, a bankrupt, 10 Law J., Q. B. 22. Arbitration, refusal of umpire to hear evidence^ If an umpire either refuse to rehear the evidence already given before the arbitra- tors, or to hear further evidence, the award may be set aside. And it is no waiver of the objection, that the party did not insist on it at the time he attended to take up the award. In re Jenkins and Leggo, 11 Law J., Q. B. 71. An arbitrator's authority is confined to the terms of referenced] Where a cause only was referred to an arbitrator, in which the plain- tiff claimed by his particulars of demand upon the balance of an ac- count a sum of 34Z. lis. 4 Ac?., and the defendant paid into court the sum of 9?. 3s. 2d., but the arbitrator, upon a supposition that he was entitled to settle all matters in difference between the parties, awarded to the plaintiff the sum of 33/. 7s. \()d., the court set aside the award, upon the ground that the arbitrator had exceeded his authority. At- kinson v. Jones, 1 Dowl. & L. 225, Q. B. And where the parties to an order of reference mutually agreed to strike out the usual clause, giving the arbitrator power to examine the parties. At the hearing, the plaintiff's attorney tendered the plaintiff as a witness, and he was examined by the arbitrator. The defendant's counsel objected to the admission of the plaintiff, but as the arbitrator decided against him, he proceeded to cross-examine the plaintiff', and went into his case. On a motion to set aside the award for irregu- larity : — Held, that the examining of the plaintiff under those circum- stances, was a good ground for setting aside the award ; and that the objection was not waived by the defendant going on with the ar- bitration. Semble, if the defendant had tendered himself as a witness to sup- port his own case, that would have been a waiver. Smith v. Sparrow, 16 Law J., Q.B. 139. Parties to submission to arbitration.] By a judge's order, made in a cause of A v. B, it was ordered, by consent of the parties, and of C, (a stranger) that a verdict should be entered for the plaintiff, damages 50/. subject to the award of an arbitrator, who was to settle all matters in difference between the parties in the action, and also between B and C, the arbitrator awarded that all proceedings in the action should cease, &c. ; and that the plaintiff had a good cause of action against the defendant in the said cause, and was entitled to a verdict therein, and assessed the damages at 40s., " to be paid by the de- fendant to A and C, who had consented to become a party to the said cause." An action being brought by A and C v. B on the award : — Held, on demurrer, that the award was good. Hawkins and Cole v. Benton, 15 Law J., Q. B. 138. Arbitrator may administer the oath to witnesses although the order omit to state so.] By an order of reference at Nisi Prius, it was di- rected that the witnesses should be sworn before a judge or a com- ARBITRATION. 27 missioner : — Held, that this clause did not exclude the general power of the arbitrator to administer an oath to such witnesses under 3 & 4 Will. 4, c. 42, s. 11 ; Hodsoll v. Wise, 4 Mee. & W. 536; 8 Law J., Ex. 71. Discretion of arbitrator to examine witnesses on oath.~\ A cause was referred by order of Nisi Prius, which stated that " the arbitrators should be at liberty, if they should think fit, to examine the parties and their respective witnesses on oath :" — Held, that it was discre- tionary with the arbitrators whether they would examine the witnesses on oath or not, and that it was no objection to their award that the witnesses were examined without being sworn, although the party against whom the award was made required, at the time, that they should be sworn. Smith v. Goff, 14 Mee. and W. 264 ; 3 Dowl. & L. 47. Reception of evidence in the discretion of the arbitrator. ~\ The ques- tion as to what evidence ought to be received being one of law, the court will not revise it. Symes v. Goodfellow, 2 Bing. N. S. 532 ; 2 Scott, 769 ; 4 Dowl. 642. It is no ground for setting aside an award that the arbitrator has re- ceived improper evidence. Henley v. Hailing, 1 H. & W. 2. Submission to arbitration stating no time for making aivard.'] By a deed of submission, certain matters in difference were referred to the award of arbitrators, and the parties thereby covenanted to perform their award of and concerning the premises, or anything in any wise relating thereto, and also of and concerning all actions, &c., sums of money, demands, &c., at any time theretofore had, commenced, sued, prosecuted, or depending between the parties, so as the award was made in writing, under the hands of the arbitrators making the same ; but no time within which the award was to be made was limited by the deed. By a memorandum, not under seal, indorsed on the deed after its execution, and signed by the arbitrators, but not by the par- ties, the arbitrators agreed that the award should be delivered on or before the 3rd of November : — Held, that the arbitrators could not in the absence of any power to that effect in the deed, limit the time for making their award, so as to render an award made after the 3rd No- vember invalid. In re G. Morphett and another, 14 Law J., Q,. B. 25Q. A submission to arbitration may be made a rule of court, although subsequent proceedings are void.^ It is no objection to the making of a submission to arbitration a rule of court, that all the proceedings taken under such submission are null and avoid. Anon. 10 Jur. 525, B. C. Submission to arbitration, making of a rule of court.'] Where two parts of a deed of submission to arbitration were executed, and the arbitrator endorsed the enlargements of the time for making his award on one part, the court compelled the party in whose possession that part was to make it a rule of court. Smith v. Blake, S Dowl. 130, Q,.B. A submission cannot be made a rule of court without the original ; c 2 28 ARBITRATION. and if in the possession of the adverse party, a rule will be granted to compel him to produce it. Lonl Boston v. Merham, 8 Dowl. 867, Ex. An agreement of reference contained a clause for making such agreement a rule of court. The award being published, and a motion about to be made for setting it aside, the party interested in opposing such motion refused to produce the agreement for the purpose of its being made a rule. The court, on motion, in the term ne.\t after the making of the award, permitted a copy of the agreement to be made a rule of court, and granted thereupon a rule nisi for setting the award aside. In re Plews, 6 Q. B. 845. Agreement of reference, proof of} An agreement of reference, to which the plaintiff was a party, was attested by two subscribing wit- nesses. Upon an issue joined, in which the plaintiff denied the agreement of reference : — Held, that the rule of court, by which, pursuant to the agreement, it was made a rule of court, and which recited and incorporated it, was not the proper evidence of it, but that it should have been proved by one of the subscribing witnesses. Bernie v. Read, 14 Law J., Q. B. 247. Arbitrator's certificate for special jury , when too late.} An order of reference, containing a provision that the arbitrator should have all the powers of a judge at Nisi Prius, and should make his award before the first day of Michaelmas term. The award was made on the 6th August ; and after the first four days of Michaelmas term the arbitrator indorsed on the record a certificate that the cause was one proper to be tried by a special jury : — Held, that the certificate was given too late. Geeves v. Gorton, 10 Jur. 272, E.x. Certificate on arbitration given in vacation — signing judgment.} Where a verdict is taken at Nisi Prius by consent, subject to the cer- tificate of an arbitrator, and the certificate is given in vacation, after more than four days from the return day of the distringas juratores, the certificate has relation back to the date of the verdict, and the suc- cessful party is entitled tosign judgment immediately, without waiting until the first four days of the next term have expired. Cromer and another v. Chart, 15 Law J., Ex. 263. Revocation of submission.} Bankruptcy is no revocation of a sub- mission to arbitration. Hemsworth V, Brian, 2 Dowl. & L. 844; 14 Law J., C. P. 134. After submission to arbitration a party cannot move in arrest of judgment.} Where an order of reference contains a clause restraining the parties from bringing a writ of error, they are precluded from moving in arrest of judgment. Chownes v. Brown, 2 Dowl. and L. 706; 14 Law J., Ex, 219. Arbitrator's fees and expenses of award.} The court has no general authority to make an order on arbitrators, or their attorney, to refund so much of the fees as they have received, as exceeds the amount allowed by the master on taxation. Dossett v. Gingell, 10 Law J., C. P. 183, I 29 ARREST. Arrest for a larger sum than stibsequently found to be due. Costs ^ A defendant will be entitled to his costs under the 43 Geo. 3, c. 46, s. 3, if he has been arrested for a larger sum than that found to be due, when the plaintiff ought to have known that he had no legal proof in support of his claim to the extent for which the arrest took place. Robinson v. Whitehead, 6 Dowl. 292, B. C. Though, where there is a reasonable doubt in law as to the right of the plaintiflfto recover part of his demand: — Held, that the de- fendant was not entitled to claim his costs under the 43 Geo. 3, c. 46 ; Stovin V. Taylor, 1 Dowl. 697, K. B. And the statute does not apply where a cause is referred to arbitra- tion, ifeene V. DeeJZe, 3 B. & C. 491. Personal exemption from arrest.'} An Irish peer, who has voted in the election of representative peers, and whose vote has been allowed by the House of Lords, is privileged from arrest. Coates v. Hawar- den, 7 B. & C. 388 ; 1 M. & R. 110. A defendant, who has voted in the character of a Scotch peer, is privileged from arrest. Digby v. Stirling, 8 Bing. 55. A chaplain to the king is privileged from arrest. Byrn v. Dibdin, 1 C. M. & R. 821 ; 5 Tyrw. 357; 3 Dowl. 448 ; and Winter v. Dib- din, 13 Mee. & W. 25; 2 Dowl. & L. 211. A lord of the bed-chamber in the royal household is privileged from arrest. Aldridge v. Lord Tullamore, 3 Dowl. 450, n. The privilege from arrest applies to a page of the second class in ordinary to the queen. Reynolds v. Pocock, 4 Mee. & W. 371. And to the candle and fire-lighter to the yeoman of the guard. Hatton V. Hopkins, 6 M. & Sel. 271. But, on motion, the court refused to discharge out of custody " the Somerset herald," leaving him to his writ of privilege. Leslie v. Disney, 1 C. M. & R, 578; 5 Tyrw. 181. A clergyman on his way to the altar is privileged from arrest. God- dard V. Harris, 7 Bing. 320. Exemption from arrest, as to locality.'] Though an arrest within the precincts of the Tower is irregular, yet the party entitled to complain is only he whose franchise has been invaded. Bell v. Jacobs, 4 Bing. 523. A barrister on circuit exempt from arrest.'] The circuit held con- tinuous throughout, and not merely during the assizes at a particu- lar place, and a barrister attending privileged from arrest during the entire circuit ; held also that a capias utlagatum, at the suit of a party, is to be deemed civil and not criminal process. Reg. v. Sheriff of Kent, 2 Car. & K. 197; and Reg. v. Sheriff of Oxfordshire, 2 Car. & K. 200. Discharge from arrest, when application shoidd be made.] An appli- cation to set aside an arrest made on a judge's order, under 1 & 2 Vic. c. 110, s. 3, must be made promptly; and, as it seems, within the time for putting in bail. 30 ARREST. In order to excuse the delay, on the ground of a previous apphca- tion at chambers, the rule must be drawn up on reading the sum- mons, or it must be shown by affidavit. Sugars v. Concanen, 5 Mee. & W. 30. Discharge from arrest, party attending court.'] Where a person attending court has been wrongfully arrested, he may be discharged either by the court which he was attending, or by the court out of which the process issued on which he was arrested. Ex parte Wat- kins, 6 Law J., Ch. 225 ; 8 Sim. 377- A party who had formerly been a solicitor, but had disposed of his business, was arrested as he was returning home from the House of Lords, where he had been attending an appeal case as agent. The cause of arrest was the non-payment of certain costs which he had been ordered to pay by the Court of Chancery : — Held, that he was entitled to be discharged from custody, and that although he had not taken the nearest road to his residence, had stopped to speak to several persons on the road, and had gone into a public-house for the purpose of taking refreshment. lb. An attorney, who had been arrested on a ca. sa., applied to be dis- charged on an affidavit, in which he stated, that having professional business to transact in several causes in the Courts of Exchequer and Common Pleas, he was proceeding through the city of London, in his way to Westminster Hall, for that purpose; that on arriving at the Bank of England, he recollected that he had some business to trans- act with a client, whom he might probably meet at the Auction ivlart; he, therefore, called there, in his way to Westminster Hall, and there saw his client, and was about to leave him and proceed to Westminster Hall, when he was arrested : — Held, that he was not entitled to be discharged en this affidavit. Strong v. Dickinson, 1 Mee. & W. 488 ; 5 Law J., Ex. 231 ; 5 Dovvl. 99 ; 1 Tyrw. & G. 683. Discharge from arrest, the affidavit being insufficient -I Where a de- fendant has been arrested by a judge's order, under 1 & 2 Vic. c. 110, s. 3, obtained on insufficient affidavits, the application for his discharge should be by motion to set aside the judge's order, not the capias. Hopkins v. Salembier, 5 Mee. & W. 423 ; 7 Dowl. 493. Arrest on a ca. sa. after the death of the plaintiff. 1 On a motion to discharge the defendant out of custody on the ground of his having been arrested on a ca. sa. after the death of the plaintiff: — Held, that the same rule applies to a ca. sa. as to a fi. fa., and that the arrest was regular. Ellis v. Griffith, Ex. M. T. 1846 ; 10 Jur. 1014 ; 16 Law J., Ex. 66. Arrest of a defendant by a wrong name.'} A plaintiff arrested a defendant by a wrong name, but it appeared that he had made in- quiries at a banker's where defendant kept an account, who told him they believed the defendant's name to be that in which he was ar- rested. The court held the inquiry sufficient within the 32 Reg. Gen. H. T. 2 Will. 4, so as not to entitle the defendant to his discharge. Rosset V. Hartley, 5 N. & M. 415. Re-arrest under the same v)rit.'\ A party who has been arrested ATTACHMENT. 31 under colour of a ca. sa., and discharged by a judge's order, on the ground that the sherifTs officer had no warrant at the time of the taking, may be arrested again under the same writ. Plomer v . Ball, 5 Ad. & E. 823. ATTACHMENT. An attachment cannot be moved for in person.'] This motion is in the nature of a criminal proceeding, and must be made by counsel, so as to give a sanction, and show that there is some ground for the application. Fenn, ex parte, 2 Dowl. 527, Q. B. Rule for an attachment, whether nisi or absolute.'} A rule for an attachment for any other cause than the non-payment of money pursuant to the master's allocatur, or against a sheritF for not returning a writ, is only nisi in the first instance. Richmond v. Bowdidge, 4 Dowl. 749, Ex.; 1 Mee. & W. 40. The copy of a rule for an attachment must be correct.'} Where a copy of a rule mis-spelled the defendant's name and also the mas- ter's name, the defendant was discharged. Rex v. Calvert, 2 C. & M. 189 ; 2 Dowl. 276 ; 4 Tyrw. 77. A rule for an attachment is not allowed to be returnable at cham- bers.'] On motion for an attachment for non-payment of costs, pur- suant to an award, it being near the end of term, application was made that it might be heard at chambers. The court refused it as quite unusual. Fall v. Fall, 2 Dowl. 88, Ef . Service of a rule for an attachment.] There must be personal ser- vice of a copy of the rule, merely showing the original will not do. Parker v. Burgess, 3 Nev. & M. 36 ; and Dulton v. Tucker, 5 Dowl. 550. The original need not be placed in the party's hands. Calvert v. Redfern, 2 Dowl. 505, Q. B. But it must be shown. Danes v. Sherlock, 7 Dowl. 592. And to found an attachment for not obeying a judge's order, the rule of court having been served is sufficient without service of the order. Greenwood v. Dyer, 5 Dowl. 255, B. C. Where it appears the defendants "were shy and difficult to be met with," personal service was not dispensed with. Garland v. Goulden, 2 Y. & J.89. If a party appear on a rule for an attachment coming on, he waives the want of regular service. Levi v. Duncombe, 1 C. M. & R. 737 ; 3 Dowl. 447. To ground an attachment against an attorney there must be personal service of the rule. Wilkinson v. Pennington, 3 Scott, 401 ; 6 Dowl. 183. An affidavit stating that the rule for an attachment was " left with him at his house" is sufficient. Short v. Smith, 8 Dowl. 584, C. P. To make a rule absolute for an attachment for non-payment of costs, the service must be strictly personal. Birkett v. Holme, 4 Dowl. 550. 32 ATTACHMENT. Where a rule for an attachment, which has heen served too late for cause to he shown against it, when due is enlarged to the following term, there must be a personal service of the enlarged rule. Dixon v. fVillis, 6 Law J., Ex. 144. The court will not make a rule nisi for an attachment absolute, un- less there be a personal service, or it appears that it has been seen in the possession of the party sought to be served ; even although he be an attorney of the court, and circumstances are sworn to, that leave no doubt that he is keeping out of the way for the purpose of avoiding service, and the applicant has no other remedy. Re Pyne, 1 Dowl, h L. 703, Q. B. Personal service of a rule for an attachment may be dispensed with in cases where there is no other remedy, and it is quite clear that all attempts to effect personal service have been purposely evaded. In re Whulley, 9 Jur. 995, Ex. ; 15 Law J., Ex. 4 ; 14 Mee. & W. 731. On an application to enlarge a rule for an attachment for non-per- formance of an award, and to substitute special service thereof in lieu of personal service : — The court held, that personal service is never dispensed with in a rule for an attachment where there is another remedy, as there is in this case, by an action on the award. Budd v. Powtincj, MS. Exch. H. T. 1847. Service of rule nisi for an attachment fornon-performance of award.'] Where service of the rule nisi for an attachment for non-payment pursuant to an award had been on defendant's wife, and there was reason to believe the defendant himself had kept out of the way, and had idtimately received the rule, personal service was dispensed with, and the rule made absolute on service on the wife. Potter v. Williams, 6 Jur. 508, B. C— Coleridge, J. Personal service of a rule may be dispensed with?^ Where a person keeps out of the way to avoid being served personally with a rule, preparatory to obtaining an attachment against him, and it is clearly made out to the satisfaction of the court, the court will dispense with personal service. Green v. Prosscr, 2 Dowl. 99, Ex. Renewal of a motion for an attachment. — Where a party having applied for an attachment for non-payment of costs, which was refused on the ground of the improper service of a power of attorney, but leave being given to apply again, renewed the application after making a proper service of the power of attorney, and afresh demand of costs, which the y)laintiff refused to pay:— Held, that the api)lication might be made, the second demand and refusal being a fresh contempt, and amounting to new matter. Dixon v. Oliphant, 15 Mee. & W. 152 ; 15 Law J ., Ex. 106 ; 3 Dowl. & L. 485. An attachment may issue against one of several defendants.] Where a rule for taxing costs is against several defendants, an attachment against one only for non-payment will not be set aside as irregular. The Queen v. Dobson, 15 Law J., Q. B. 376 ; 10 Jur. 905. Attachment for non-delivery of papers.] There must be a rule for ATTACHMENT. 33 the deliver}' of the papers before a rule nisi for an attachment will be granted. Roscoev. Hardman, 5 Dowl. 157. A demand on an attorney to deliver up papers must be made by a person duly authorised, and that stated to the attorney, to ground an attachment for refusal. Doe d. Hickman v. Hickman, 8 Dowl. 833, C. P. Attachment for non-payment, Sf-c. not waived by other proceedings.^ An arbitrator having by his award ordered the defendant to pay to the plaintiff a sum of money, the plaintiff' filed an affidavit of debt in the Court of Bankruptcy, under stat. 1 & 2, Vict. c. 110, and the defendant gave a bond, with sureties, conditioned for payment of the money, but omitting the alternative in the statute, of rendering himself to custody: — Held, that the plaintiff's having adopted this proceeding did not preclude him from applying for an attachment for non-performance of the award and rule of court thereon. Mendell v. Tyrrell, 9 Mee. & W. 217. Attachment for non-payment of costs, when may he moved for. ~\ It is no ground of objection to an application for a rule absolute in the first instance for an attachment for non-payment ot costs on the mas- ter's allocatur, that the rule ordering the payment of the costs, and the allocatur thereon have only been served upon the party on the day when, and immediately before, such application is made. Steel v. Compton, 9 Jur. 181, B. C. — Patteson, J. Attachment for non-payment of money — demand hy power of attorney.] Where money is ordered to be paid to a certain person not an attorney or his agent, a demand must either be made by himself or some one authorised by a power of attorney. Brown v. Jenks, 4 Dowl. 581. To bring the party into contempt for non-payment of money, pur- suant to rule of court, if the demand is made by power of attorney, a copy of the power must be left at the time of demand. Doe d. Cope V. Johnson, 7 Dowl. 550, B. C. ; and Rex v. Puckwood, 2 Dowl. 571, B. C. A rule nisi for an attachment will not be granted for non-payment of money under a rule of court, unless the rule has been personally served, and the demand made by a person authorised to receive the money. In re Richardson, 11 Jur. 309. Attachment for non-payment on master's allocatur between attorney and client.] The rule for an attachment for non-payment of costs pur- suant to the Master's allocatur between attorney and client is nisi in the first instance. Spragg v. Willis, 2 Dowl. 531. A rule for an attachment for non-payment of costs between attorney and client is nisi. Green v. Light, 3 Dowl. 578, B. C. And it is only a rule to show cause where the Master had to decide on matters of account as well as costs. Rex v. Spraggs, 2 >j. & M. 678. Attachment for non-payment of costs.] The rule for an attachment for non-payment of costs on the Master's allocatur is absolute in the C 3 34 ATTACHMENT. first instance, although against a feme coverte. Reg. v. Johnson, 1 Dav. & Mer. 231 ; 5 Ad. & Ell., N. S. 335. An attachment for costs can only include the costs on the allocatur, and not subsequent costs. Regina v. Jameson, 8 Dowl. 790; 6 Mee. & W. C03. Although husband and wife may be parties to a suit, an attachment for non-payment of costs will not be granted against the latter. Doe (1. Allanson v. Cunjield, 6 Dowl. 523. An attachment for non-payment of costs can only be granted upon an affidavit of personal service. Stanwell v. Tower, 2 Dowl. 673. Costs of an attachment.] All charges incidental to the attachment, and the removing of the contempt, come within the words " costs" when given on an attachment. Tyler v. Campbell, 7 Scott, 116. Payment or tender to the plaintiff must be personal.'] Where a judge directs a tender to be made to tlie plaintiff, to ground an attachment, a tender to his attorney will not do. Evans v. Millard, 3 Dowl. 661, Ex. Demand of payment by the attorney, the agent being named on the record.] Where money is to be paid to the party or his attorney, a demand may be made by the attorney though the agent's name be on the record. Dennett v. Pass, 3 Dowl. 632 ; 1 Bing. N. S. 638. Demand of payment under an allocatur.] The demand may be made by the attorney in the cause though the master had not in his allocatur directed payment to him. Cox v. Salman, 2 W. & M. 127. And the attorney need not be authorised by power of attorney to make the demand. Mason v. Whitehouse, 6 Scott, 246 ; 4 Bing. 692; 6 Dowl. 602. Although costs are to be paid to the plaintiff, a demand by his attorney is sufficient. Inman v. Hill, 4 M. & W. 7 ; 6 Dowl. 666. If, after demand, the amount be reduced, a fresh demand is requisite. Spivy v. Webster, 1 Dowl. 696. After an order obtained for taxation, under 6 & 7 Vic. c. 73, s. 43, before an attachment can issue, an order for payment of the amount certified must be made and have been disobeyed. Woodhouse, in re, 2 Man. Gr. & S. 290. A rule for an attachment against an attorney for non-payment of money, pursuant to his promise, cannot be obtained ; a previous rule, requiring the payment of money, must have been made absolute. Tuoiss v. Fry. 5 Dowl. 157. An attachment for non-payment of money will not be granted if the affidavit on which it is sought to bring the party into contempt describe the rule of court as an " order." In re Turner, 6 Dowl. 6. Attachment for non-payment of money under an order.] In order to bring a person into contempt for not paying money according to an order, a demand of the money must be made after the order has been made a rule of court. Chillon v. Ellis, 2 Dowl. 338, £x. Attachment for non-performance of an award.] On showing cause ATTACHMENT. 35 against a rule for an attachment for non-performance of an award, reference cannot be made to the pleadings in the cause, without an affidavit identifying them with the award. Roiue v. Sawyer, 7 Dowl. 691. To warrant a motion for an attachment for non-performance of an award, the order or submission must appear to have been previously made a rule of court. Mayor of Bath v. Pinch, 4 Scott, 299. Attachment for non-payment of costs on an allocatur on judgment in ejectment.] An attachment was granted for the non-payment of the costs of an ejectment which had been taxed under the consent rule, where the rule and allocatur were served on the defendant, and a demand of the costs generally, without mentioning any specific sum, made at the same time. Doe d. Tew v. Ballinyham, 15 Law J., Q. B. 220. Attachment for disobeying a judge's order.] An attachment for dis- obeying a judge's order does not lie until it has been made a rule of court. Baker v. Rye, 1 Dowl. 6S9, Ex. Attachment against a plaintiff for not obeying a judge's order.] Where a judge's order having been obtained under 2 Will. 4, c. 39, s. 17, in a qui tam action, for a particular of the plaintiff's residence, &c., and he had furnished his attorney with a false statement: — Semble, the court had authority to issue an attachment, although the plaintiflF is not named in the statute, but only the attorney. Wherever parties in any way obstruct, pervert, or defeat the authority of the court, they are guilty of a contempt. Smith q. t. v. Bond, 13 Mee. & W. 594; 2 Dowl. & L. 460; and 14 Law J., Ex. 114. Attachment against a prisoner] A prisoner in the custody of the marshal cannot be brought up to be charged with an attachment; but it should be lodged with the sheriff, to take him upon his dis- charge upon the former process. Boucher v. Simms, 2 C. M. & R. 392 ; 4 Dowl. 173. Attachment for contempt of court, form of warrant.] An adjudi- cation of contempt by any of the superior courts of common law, is not a necessary part of a committal for a contempt ; and an attach- ment is valid without it. And the same principle is applicable to the Court of Chancery, as Lord Lyndhurst recently decided after an inquiry into precedents. Ex parte Van Sandau, 1 Phillips, 605. Attachment against the sheriff for not returning writ.] In order to obtain an attachment against a sheriff for not returning a writ pur- suant to a judge's order, the original order must be shown at the time of serving a copy of it. Granger v. Fry, 5 Dowl. 21. Where a plaintiff is entitled to an attachment, pursuant to Reg. Gen. H. T. 3 Will. 4, against the sheriff for not obeying a judge's order in vacation, to bring in the body, although the defendant is afterwards rendered in vacation, he is bound to apply for the attachment promptly in the following term. Rex v. Sheriff of Middlesex, 5 Dowl. 245. Where the sheriff took a bail-bond with one iUJ-ety only, and after- 36 ATTACHMENT. wards made a day's default in returnino; the writ, the court set aside an attachment obtained aj^ainst him, on payment of costs. Semble — aliter of an attachment for not bringing in the body. Rex V. Sheriff of Surrey, 2 C. M. & R. 698 ; 1 Tyrw. & G. 32. The court will not entertain an ajjplication to set aside a regular attachment at^ainst the sheritl" until bail have justified, or the defen- dant has been rendered. Rex v. Sheriff of Lincolnshire, 5 Law J., Ex. 42. The affidavit in support of a rule for discharging an attachment against the slieritf, &c., in pursuance of the rule II. T. 7 Will. 4, must state that the application is made " for his indemnity only." Geach v. Atkinson, 7 Law J., Ex. 314. Attachment against a sheriff for non-payment of money ^ A rule for an attachment against the sherifi', for the non-payment of money directed to be paid by an order made a rule of court, and of the costs of the rule is only in the first instance a rule to show cause. Hatfield V. Hatherfield, 1 Dowl. & L. 809, C. P. Attachment against the defendanfs attorney for not appearing on subposna.'] The defendant's attorney had been served by the plaintiflf with a subpoena duces tecum, at Chelsea, just before ten o'clock at night, to attend at Westminster next morning at nine o'clock, to pro- duce certain documents which were at his office in Symond's Inn. He was clerk to the board of guardians, and vestry clerk, and in his duty as such, attended that morning a meeting which had been previously fixed, believing that he would still be in time to attend the trial ; but a special jury case suddenly terminating, the cause was called on about ten o'clock in the morning, and the record in consequence of his absence withdrawn. The court made a rule absolute for an attach- ment against him. Jackson v. Seager, 2 Dowl. & L. 13, Q. B. Attachment against a witness for not obeying a subpoena.'] On a motion for an attachment against a witness for not obeying a subpoena, it is not necessary that the witness should have been called in court upon his subpoena, if it clearly appear from the affidavits that the wit- ness was not in attendance at the trial. Goffv. Mills, 2 Doa'1. & L 23, Q. B. In order to obtain an attachment against a witness, the original writ of subpoena must be shown at the time of the service of the copy. Where the witness, a managing clerk to an attorney, was served with a subpoena in court about an hour before the trial came on, and whilst he was attending to the winding up of a cause in which he was engaged, and which stood next but one on the list before the cause in question : — Semble, that this was not a sufficient service to warrant the granting an attachment. Pitcher v. King, 2 Dowl. &c L. 755, Q. B. The court refused an attachment against a witness for not appearing at a trial, in obedience to a writ of subpcena, where itapjieared that he had not been guilty of any wilful misconduct, and where the only fact which he was subpoenaed to prove could have been proved by another witness, who was in attendance at the trial under a subpoena for that purpose, but who was not called. Chapman v. Davis, 11 Law J., C. P. 51. ATTACHxMENT. 3/ A subpoena to attend the trial of a cause on the commission day extends to the whole assizes ; and it need not require the attendance of the party " from day to day, till the cause is tried." The court will not presume a contempt; and therefore, where an excuse, even ambiguously worded, is offered for the non-attendance of a witness, the court will leave the party to his remedy by action, or motion for a new trial. In answer to a motion for an attachment, the witness swore, that he had been for some time in bad health ; that on the morning of the trial he was unwell, and did not rise until ten o'clock, that he shortly afterwards went to his office, which lay in the road to the court, when, upon inquiry, he found the cause had been tried :— Held, a sufficient excuse, the witness denying any intention to treat the court with disrespect. Semble, in answer to a motion for an attachment, it is not suffi- cient to show that the testimony of the witness was immaterial. Scholes V. Hilton, 11 Law J., Ex. 332. It is not competent for a j)erson served with a subp. due. tec. to show the instrument he was required to produce was immaterial in the cause, in answer to a rule for an attachment. Doe d. Butt. v. Kelly, 4 Dowl. 2/3, A witness is not bound to obey a subpoena altered by the attorney from the sittings from which it was originally sued out to subsequent sittings, without being re-sealed. Whether a subpcEna has been served in a reasonable time before the trial is matter for the court. Service on a person living close to the place of trial at half-past eleven o'clock in the morning, for a cause called on at two o'clock, is not in sufficient time. Barber v. Wood, 2 M. & R. 172. An affidavit to ground a rule nisi for an attachment for not obeying a subpoena must state that at the time of the service the original subpoena was shown ; and it is a sufficient answer to such a rule that the affidavit does not so allege. Garden v. Cresswell, 2 Mee. & W. 319. And the affidavit must state that the party was a material witness. Tinley v. Porter, 2 Mee. & W. 822 ; 5 Dowl. 744. If the original subpoena be not shown, the rule will be discharged with costs. Jacob v. Hungate, 3 Dowl. 456, Ex. In a previous case in the Common Pleas it was held that the origi- nal subpoena need not be shown. Taylor v. Williams, 4 M. & P. 59. But subsequently that court held, that the original subpoena must be shown at the time of the service of the copy. Smith v. Truscott, 1 Dowl. & L. 530, C. P. Attachment for keeping a witness out of the way.] An attachment lies against a party who keeps a witness out of the way and prevents the service of the subpoena. Clements v. Williams, 2 Scott, 814. Attachment refused against n defendant.'] The court refused an attachment against the defendant for attempting to persuade a witness not to give evidence at the trial, it not appearing that the witness was prevented from being subpoenaed through the defendant's interference. Schlesinger v. Flersheim, 2 Dowl. & L. 737. Application for a habeas corpus by a party in atstody under an attachment.] The court will not grant a habeas cori)us to bring up a 38 ATTACHMENT. party in custody under an attachment, to enable him to move in person to set it aside. Ford v. Nassau, 9 Mee. & VV. 793. Attachment from chancery — tender of the money on arrest.] Upon an attachment from chancery for non-paj'ment of money, tendering the amount to the officer does not entitle the party to his discharge. Pitt V. Coombs, 3 N. & M. 212; 5 B. & Ad. 1078. Attachment under a warrant by the speaker of the House of Com- mons.] The warrant of the speaker of the House of Commons is to be construed with the same respect as is shown to a writ issuing out of any of the superior courts at Westminster. And inasmuch as it is unnecessary for a writ of attachment issued by any superior court to state any special grounds, in order to show that the court is acting duly, formally, and regularly ; so neither is it requisite for the order of the House of Commons or the speaker's warrant to contain any like allegation. Gosset v. Howard, Ex. Chamber in error, H.T. 1847. The House of Commons, as a part of the high court of Parliament, is not merely a superior but the supreme court in this country, and higher than the ordinary courts of common law. Per Lord Camden in Entich V. Carrington, 19 State Trials, 1047. The warrant of the speaker of the House of Commons, in a general form, is equally a protection to the serjeant at arms as a writ of attach- ment in the general form issued by a superior court is a protection to the sheriff. Gosset v. Howard, as above. Attachment for not aiding in the execution of a writ of rebellion.] The persons named in a writ of rebellion, and charged with the execu- tion of it, have a right, at their discretion, to require the assistance of any of the liege subjects of the crown, to assist in the execution of the writ; and a stranger to the proceedings in the cause called upon to assist in the execution of the writ, and declining to do so, is liable to an attachment for contempt. Miller v. Knox, 4 Bing. 574. An alias writ of attachment may be issued.] A party in contempt being permitted to be at large, may be re-taken on an alias attach- ment. Good V. Wilks, 6 M. & Sel. 413. Report of the master on a reference to him of the ground for an attachment is conclusive.] The master's report that the defendant has cleared himself from the contempt will not be revised by the court, unless it appears from the interrogatories and answer he is mistaken. Rex V. Morley, 4 A. & E. 849. ATTORNEY. Attorney, privilege of, from arrest while attending a county court.] An attorney who had been properly admitted in the superior courts, was arrested while attending in his professional capacity in the county court : — Held, that he was entitled to his discharge, upon affidavits showing the above facts, and in the absence of any counter statement that he was not entitled to j/ractise in the county court. Clutterbuch V. Halls, 15 Law J., Q. B. 310 ; 10 Jur. 1082. ATTORNEY. 39 And while in attendance at the master's office taxing costs, as well as returning therefrom. In re Hope, 9 Jur. 840, B. C. — Wightman, J. Privilege of an attorney as to the venue.'] Since the uniformity of process act, an attorney does not waive his privilege of laying the venue in Middlesex, by omitting to describe himself as an attorney in the declaration. Williams v. Powell, 10 Jur. 966, B. C. and Cutts v. Surridge, 16 Law J., Q. B. 2. But the privilege only applies where he sues in person, and not when he employs another attorney. Harrington v. Page, 2 Dowl. 164. Where an attorney sues in person, it is no ground for changing the venue in such a case that the witnesses on both sides reside in the county to which the venue is sought to be changed. Pitcher v. Sh. of Monmouth, 2 Marsh, 152. But if an attorney lay the venue in a different county, the court will not afterwards allow him to amend, by changing the venue to Mid- dlesex. Lewis v. Shelly, 7 Taunt. 146. An attorney, when defendant, has no privilege as to venue, and therefore cannot change the venue to Middlesex, unless the cause of action accrued there. Yeardly \. Roe, 3 T. R. 573 ; and Pope v. Redfearne, 4 Burr. 2027. Privilege of an attorney to he sued in his own court.] To an action in the Common Pleas against an attorney, a plea that he is an attorney of the court of Queen's Bench, and not of the court of Common Pleas, must be pleaded by attorney and not in person. Groom v. Wortham, 12 Law J., C. P. 88. An attorney is still entitled to be sued in his court, notwithstanding 2 Will. 4, c. 39. Lewis v. Kerr, 2 M. & W. 226 ; 5 Dowl. 327, 447, and Percivalv. Cook, 7 Dowl. 500. And the 1 Vic. c. 56, does not deprive an attorney of the privilege of being sued in his own court, but only subjects him to the jurisdic- tion of another court in which he has acted. Prior v. Smith, 6 Dowl. 299. Attorney not bound to sue in a court of requests.] An attorney, plaintiff, is not obliged to sue in a court of requests, for a debt, unless his privilege in that respect be taken away by express words in the statute creating or regulating the court. Johnson v. Bray, 2 Brod. & B. 698 ; and Board v. Parker, 7 East, 46. Nor can an attorney as defendant be sued in a court of requests, unless his privilege in that respect be taken away by express words in the statute creating or regulating the court. Gardner v. Jessop, 2 Wils. 42 ; Wiltshire v. Lloyd, 1 Doug. 381. Attorney, admission of, to the Lord Mayor's court under 6 S/- 7 Vic. c. 73, s. 27.] The Lord Mayor's court is an inferior court, within the meaning of the G & 7 Vic. c. 73, s. 27, notwithstanding its peculiar customs and jurisdiction. Every attorney duly qualified is entitled to be admitted an attorney therein, although there is not, and never has been a roll of the attorneys of that court. The Queen v. The Lord Mayor, Sfc. of London, 16 Law J., Q. B. 185. Privilege of attorney.] Since the uniformity of process act, 2 Will. 40 ATTORNEY. 4, c. 30, an attorney can no longer sue by attachment of privilege; r-nd therefore, thoiit^h he sues in liis own court as a common person, the court will not enter a supjj;estion on the roll to deprive him of costs for not suing in the Middlesex Court of Requests. Wright v. Skinner, 1 Mee. & W. 144. An attorney who is going abroad is not privileged from arrest on mesne process, under the 1 & 2 Vic. c. 110, s. 3. Flight v. Cook, 1 Dowl. & L. 714, Q. B. ; 13 Law J., Q. B. 78. The rule that an attorney, sued jointly with an unprivileged jjerson, shall lose his privilege of being sued in his own court is not altered by the uniformity of process act. Rastrick v. Beckwith, 2 Dowl. & L. G24 ; 8 Scott N. R. 716 ; 14 Law J., C. P. 1. A defendant who is an attorney in two of the superior courts may be sued in either, at the option of the plaintiff. Waljord v. Fleetwood, 14 Mee. & W. 449; H Law J., E.x. 271. Jurisdiction of the court over an attorney. '\ Where an attorney has been guilty of misconduct in the course of a cause, the court will grant a rule calling on him to show cause why his name should not be struck off the roll, even although the matter comi)lained of may amount to an indictable offence ; but the court will not, under such circumstances, call upon him to answer the matters of an affidavit. The affidavits to ground an application to strike an attorney off the roll, for misconduct in a cause, may be entitled in the cause, though judgment has been obtained in it. Stephens v. Hill, 10 Mee. &W. 28. A motion to compel an attorney to answer the matters of an affidavit cannot be made on the last day of term. Re Tamer, 3 Dowl. 557- An application for a rule requiring an attorney to answer the matters of an affidavit must be made by a gentleman at the bar. Ex parte Pitt, 2 Dowl. 439; 5 B. & Ad. 107. An attachment against an attorney for misconduct cannot be moved for by a complainant in person, but the motion must be made by a gentleman at the bar. Ex parte Fenn, 2 Dowl, 527. Attorney — summary jurisdiction of court over."] The court will not entertain a motion touching the conduct of an attorney, unless it appears upon affidavit that he is an attorney of the court, or that the transaction arises, in part at least, out of a cause before the court ; nor will the court exercise its summary jurisdiction over an officer, unless in a case of i)alpable fraud. In re Lord, 2 Scott, 131. Where a party, about to borrow money to carry on a law-suit in an ecclesiastical or in an Irish court, referred the lender to an attorney to inform him of tiie nature of the suit, and the latter gave a guarantee of the loan, but one on which an action would not lie : — Held, that the court would not interfere summarily to enforce the guarantee. In re Kearns, 11 Jur. 521. Where an attorney was intrusted by executors with a sum of money, for the purpose of paying legacy duty, and failed so to apply it, the court refused to interfere summarily to compel him to refund the money, as it did not appear that this emjiloyment was necessary in his professional character, or that he had on other occasions ever acted as attorney for the parties. In re Webb, 14 Law J., Q. B. 244. J ATTORNEY. 41 Town agent for some purpose is the same as attorney in the cause.'] A town agent, conducting the cause in the court above, is an " attorney " within the meaning of the l^eg. Cen. 27fh May, 1840, upon whom the demand may be made for the payment of costs under a judge's order. Thompson v. Billing, 11 Mee. & W. 361. Attorney undertaking to enter appearance?^ Where a plaintiff moved for an attachment against an attorney for not entering an appearance, pursuant to his undertaking ; and it appeared that he had not, pre- vious to moving the rule, requested the attorney to enter the appear- ance, the court discharged the rule. Jacob v. Magney, 12 Law J., Q. B. 93. Attorney agreeing that his costs shall depend on the suit succeeding.'] An attorney who undertakes to conduct a suit upon the terms that he is not to be paid unless it succeeds, is not entitled upon failure of the suit to recover money paid out of pocket. Turner v. Tennant, 10 Jur. 429, Q. B. note. Attorney undertaking to charge costs out of pocket only?] An attor- ney, on being retained to bring an action, gave the following under- taking: "Should the damages or costs not be recoverable in this action, under the circumstances, I shall charge you costs out of purse only." The plaintiff obtained a verdict, with^OOZ. damages, for which sum and costs judgment was entered up. The defendant took the benefit of the Insolvent Act, and the dividend on his estate awarded to the plaintiff was 272/. odd. The master, on taxation, allowed the attorney costs out of pocket only, but referred the matter to a judge, who directed the taxation of costs out of pocket only. A second summons was taken out before the same judge, to review the taxation, and dismissed: —Held, first, that the party was not precluded from appealing to the court ; and secondly, that the taxation was incorrect. In re Sfretton, 3 Dowl. and L. 278 ; 13 Law J., Ex. 16 ; 14 Mee. & W. 806. Undertaking by an attorney to pay the debt of the defendant.] Where the attorney of the defendant had given an undertaking to pay the debt, in consequence of which the plaintiff stayed proceedings, the court enforced the undertaking, although it was void under the 4th section of the Statute of Frauds. In re Hilliard, 2 Dowl. & L. 919, Q. B. Undertaking by attorney to pay money — lapse of time.] It is no answer to a rule, calling upon an attorney to pay money pursuant to his undertaking, that more than two years have elapsed since the un- dertaking was given. In re Robt. Swan, 15 Law J., Q. B. 402. Attorney undertaking that defendant shall pay.] Where an attorney, for the purpose of settling an action, in which he had been profession- ally employed, prepared a promissory note to be signed by the defen- dant, and also himself signed an undertaking to pay the amount due on the note in case of default being made by the defendant, the court, on a summary application, compelled him to perform the under- 42 ATTORNEY. taking, hi re Fairthorne, gent., 15 Law J., Q. B. 130; 3 Dovvl. & L. 548. An attorney has no right to prevent a compromise between the par- ties.^ The attorney of a defendant has no such interest in the suit as to prevent the parties from compromising it without his consent. Quested v. Cnllis, 10 Mee. & W. 18. An attorney is not justified in proceeding with an action after it has been settled between tlie parties themselves, though it is known that costs have been incurred, and that the plaintiff himself is not in a condition to pay them : it must be shown affirmatively that the settle- ment was come to for the purpose of cheating the attorney. Jordan v. Hunt, 3 Dowl. 666. Attorney bringing an action without authority.'} Where an attorney brings an action in the name of a person without his authority, the court will stay the proceedings, on the motion of the defendant, and make the attorney pay the costs. Hubbart v. Phillips, 13 Mee. & W. 703 ; 2 Dowl. & L. 707 ; 14 Law J., Ex. 103. An attorney ordered to refund money — effect of disobedience.} Where an attorney, who has been directed by the master of the court to re- fund a sum of money, disobeys the direction, and keeps out of the way, the court will order him to be struck off the roll. In re , 10 Jur. 198, U. B. Attorney when privileged from disclosing his client's deed.} A party who is protected from producing a deed at Nisi Prius, on the ground that he holds it as a trustee for one of the parties, is not compellable to disclose the contents of it. An attorney for a party in a cause is not bound to state the contents of a deed, of which he first obtained a knowledge by having obtained and read it, at the suggestion of his counsel, at the consultation in the cause. Davies v. Waters, 9 Mee. & W. 608 ; 1 Dowl. N. S. 651 ; 11 Law J., Ex. 214. Striking attorney off the roll.} The court will not grant a rule in the alternative, calling on an attorney to show cause why he should not be struck off the roll, or answer the matters in the affidavit, as either uranch of the rule should be the subject of a distinct application. Burton v. Chesterfield {Earl), 9 Jur. 373, B. C. — Williams, J.; Anon, ib. B. C— Coleridge. J. Attorney relinquishing a suit.} An attorney's undertaking to carry on a suit is an entire contract to carry it on to its termination, and can be determined by the attorney only upon reasonable notice. Harris and another v. Osbourn, 2 Cr. & M. 629. An attorney who has undertaken a cause is not bound to proceed in it without adequate advances from time to time by his client, for expenses out of pocket ; and therefore the court will not compel an attorney, even after notice of trial, to carry the cause into court, unless the client supply him with the necessary funds for that purpose. Wadsworth v. Marshall, 2 Cromp. & J. 665. ATTORNEY. 43 An attorney, who has commenced an action for his client, has a right to refuse to go on without an advance of money on account, provided he gives his client sufficient notice of his intention, to enable him to make the required provision. Lawrence v. Potts, 6 C. & P. 428. To entitle an attorney to costs, he is not compelled to proceed to the end of a suit, but may, upon reasonable cause and reasonable notice, abandon the further conduct of the suit, and recover his costs for the time during which he was employed. Van Sandauv. Browne, 2 Mo. & Sc. 543; 9 Bing. 402 ; 2 Law J., C. P. 34. An attorney may refuse to proceed with a cause, unless he be sup- plied with funds ; but he must give reasonable notice to that effect. Therefore where, on the commission day of the assizes, he said that he should not deliver briefs till the plaintiff gave him money to fee coun- sel, — that was held not to be sufficiently reasonable notice to entitle him to abandon the case, because he had received no money ; although the plaintiff promised to return and bring the money, but did not, before the cause was called on, Hoby v. Built, 3 B. & Ad. 350 ; 1 Law J., K. B. 121. Attorney, the acts of, how far binding on the client.'] All acts done by an attorney within the scope of his authority his chent is bound by. He is bound even by the acts of the attorney's agent. Gi-iffitks v. Williams, 1 T. R. 7)0. Payment of the debt to an agent employed to sue the defen- dant by the plaintiff's attorney, is not payment to the plaintiff, though payment to the attorney himself is. Yates v. Freckleton, 2 Doug. 622. The authority of an attorney to conduct a suit does not extend to giving a discharge to a prisoner, in execution on judgment in the suit, without receiving the amount of the debt. Savory, assignee, Sfc. v. Chapman, 9 Law J., Q. B. 1S6. It appears by several cases collected in 1 Rolle's Abridgment, fol. 291, that the authority of an attorney determines with the judgment. Tipping v. Johnson, 2 Bos. & Pul. 357- Where a cause is referred at Nisi Prius, with the consent of the counsel and attorney, the court will not set it aside on an affidavit by a party expressly denying his attorney's authority to refer. Filmer v. Delher, 3 Taunt. 484. An attorney who consents to a rule without his client's sanction, binds his client. Thomas v. Hewes, 2 C. & ^L 519 ; 5 Tyrw. 335. Where the attorneys for the plaintiff and defendant, in a cause which was ready for trial, entered into an agreement whereby they personally undertook that the record should be withdrawn, that cer- tain things should be done by the plaintiff and defendant, and that the costs should be taxed for the defendant in a certain manner : — Held, that the attorney for the plaintiff was personally bound to pay the costs when taxed in the mode specified, Iveson, gent. Sfc. v. Conington, gent. ^c. 1 B. & C. 160. Attorney, authority of, the client residing abroad,] Where an at- torney applied to set aside a warrant of attorney, executed by a party who was abroad, on the ground of an insufficient attestation, and his affidavit showed that he had only a general authority to manage the 44 ATTORNEY. affairs of such part}' during his absence ; the court would not infer an authority in the particular transaction, and discharged the rule with costs. Lewis v. The Earl of Tankerville, 12 Law J., Ex. 234. Agent of attorney has no lien on money or papers of the client beyond the suit.'] An agent has no general lien on the money or papers of the client in his hands, for any balance due to him by the country attorney ; he can claim merely to the extent of his agency costs in the client's suit. White v. Royal Exchange Assurance, 1 Bing. 21. But an agent has the ordinary lien of an attorney, for his general balance, upon the papers or money of his own client, the country attorney, which may come into his hands. Taunton v. Goforth, 6 D. & R. 384. Attorney's bill of costs, recovery of, after he has discontinued an action.'] An attorney is not entitled to recover his bill of costs for conducting an action which he has not terminated, but which has been discontinued, unless he shows satisfactory reasons for not proceeding with it, and gives his client reasonable notice thereof. Nicholls v. Wilson, 11 Mee. & W. 106. Attorney's bill of costs should name the court and cause.] An at- torney's bill, delivered under the stat. 2 Geo. 2, c. 23, s. 23, should either expressly mention the name of the court and cause in which the business to which it relates was transacted, or same must appear by reasonable intendment, from the charges of which the bill con- sists. Martindale v. Fulkner and others, 10 Jur. I6l, C. P. ; 15 Law J., C. P. 91 ; 3 Dowl. & L. 600. Under the above statute an attorney's bill for work and disburse- ments in a suit must specify the court in which the suit was. Lewis V. Primrose, 6 Q. B. 265. Attorney's bill of costs — title of court ^ An attorney's bill delivered under 6 & 7 Vic. c. 73, s. 37, must give substantial information as to what court the business was transacted in. Englehart v. Moore, 15 Law J., Ex. 312. An application to compel an attorney to deliver his bill, must be made to the court in which some of the business is done, and the affidavit entitled in that court. In re Lord Cardross, 5 Mee. & W. 545; 8 Dowl. 861. Delivery of an attorney's bill of costs.] A bill of costs, in which no name of a client as chargeable was introduced, was forwarded by post inclosed in a letter signed by the attorney and charging the de- fendant, and requesting a cheque for the amount : — Held, that the letter and bill must be taken in connection and read together ; and that this was a sufficient delivery of an attorney's bill, within the 6 & 7 Vic. c. 73, s. 37. Taylor v. Hodgson, 10 Jur. 355, Q. B. ; 3 Dowl. & L. 115. The lord chancellor held, (affirming the decision of the master of the rolls), that, under sect. 37 of the above act, a bill of costs, which has been delivered, may be referred for taxation, though not signed by the solicitor, nor enclosed in a letter signed by him, and referrmg to such bill. In re Pender, 10 Jur. 891. ATTORNEY. 45 An attorney or solicitor's bill of costs delivered to his client under the 6 &c 7 Vic. c. 73, s. 37, must state the name of the court in which the business was done; and therefore: — where an attorney about to sue his client delivered a bill of costs within the time required by that statute, in which part of the business was described as having been done in the Court of Chancery, and the name of the court in which the rest had been done was not mentioned : — Held, that the plain- tiff could not recover even for the portion done in chancery. Icimey V. Marks, 1 Jur. 335. Taxation of a solicitor's bill for business in chancery.'] A judge of a court of common law has no authority to order that a solicitor's bill for business done in chancery be referred to taxation, although an action at law has been brought to recover the amount of the bill. Bush V. Sayer, 14 Law J., C. P 35 ; 2 Dowl. & L. 602 ; 8 Scott N. R. 56. Semble, that the court has jurisdiction to tax an attorney's bill for business done on the crown side of the Queen's Bench. In re Barker, 9 Jur. 976, Ex. Changing attorney.'] There must be a rule to change the attorney where an attorney has acted for a party, though his name be not on the record. May v. Pike, 4 M. & W. 197; 6 Dowl. 667; and Mac- pherson v. Robinson, 1 Doug. 217. The want of an order for changing an attorney is waived by the opposite party treating the new attorney as one duly appointed. Farley v. Hebbes, 3 Dowl. 538. And if a defendant who is an attorney really appears in person, but in point of form as attorney, a plea in the name of another at- torney cannot be treated as a nullity, on the ground of no order for change of attorney having been served. Kerrison v. Wallingborough, 5 Dowl. 564, B. C. The death of an attorney pending an action does not revoke his agent's authority, therefore he may proceed in the action. Taunton V. Goforth, 6 Dowl. 384, K. B. An attorney in a suit is liable to a sheriff's officer for caption fees, Sfc] A sheriff's officer may maintain an action against the attor- ney of the plaintiff in the original suit, for caption fees and con- duct money, on proof of an employment by the attorney and that it is the usual course of business for the attorney to be charged with, and to pay such fees. Proof of the usage of business is ad- missible in evidence to establish the liability of the attorney. New- ton V. Chambers, 1 Dowl. & L. S69, Q. B. But in a subsequent case it has been held, that the attorney of the execution plaintiff is not liable to the sheriff for the fees due on the execution of a writ of ca. sa. Maybery v. Mansfield, 16 Law J., Q. B. 102. Signature to attorney's bill.] A bill for work done by two attor- neys in partnership was delivered, signed by one of them, in the following terms : " This is our bill. For self and Robert Owen, 46 AWARD. J. Ho Dixon :" — Held, that this was a sufficient signature within the Stat. 2 Geo. 2,c. 23, s. 23. Owen v. Scales, 10 Mee. & W. C57. Attorney as attesting witness to warrant of attorney, refusinrj to prove same.] Where an attesting witness to a warrant of attorney refused to make an affidavit of the execution, to sup])ort a motion for judg- ment upon it, and it appeared he was colluding with the defendant, the court made a rule absolute, with costs to compel him to do so. Ex parte Morrison, 8 Dowl. 94, B. C. ; and Doe d. Avery v. Roe, 6 Dowl. 518. An attorney is bound to rjive a correct address of his client.l An attorney who gives a false residence of his client, without using proper means to ascertain whether it is correct or not, subjects himself to the costs which may be occasioned by moving for an attachment against him ; but he is not liable to pay the costs of the action, if he is bond fide unable, after proper inquiry, to give his client's residence. Neal V. Holden, 3 Dowl. 493, Ex. Computation of time in the delivery of an attorney's bill.'\ The words, one month, in the 2 Geo. 2, c. 23, before action brought on an attorney's bill, mean twenty-eight days, both exclusive of the day of delivery and of commencing the action. Bhmt v. Heslop, 8 Ad. & E. 577 ; 3 N. & P. 533. AWARD. Power of umpire to enlarrje time for mahing his award.l By agree- ment of reference, a cause and all matters in dispute were referred to two arbitrators, provided they made their award on a certain day ; and power was given them to enlarge the time for making their award. In case of their non-agreement, they were to choose an umpire, who should have power to make the award " at the time and in manner aforesaid :" — Held, that these words gave the umpire power to enlarge the time by his single authority, in the same manner as the arbitrators might have done. In re Vinicombe and Morgan, 10 Law J., Q. B. 128. Enlargement of time for making awardJ] Where parties proceed with a knowledge that the time has not been duly enlarged, the objection is waived. Lawrence v. Hodgson, 1 Y. & J. 16. An irregular enlargement of time is waived by a subsequent regular extension by consent. Bonwell v. Hinxman, 1 C. M. & R. 935 ; 3 Dowl. 500 ; 5 Tyrw. 509. Or by a subsequent attendance before the arbitrator. Hallett v. Hallett, 5 Mee. & W. 25 ; 7 Dowl. 389. Where the time originally fixed for making an award had been allowed to pass, through the neglect of the plaintiff's attorney before the order of reference was obtained from the associate, the court refused to interfere to compel the defendant to enter into a new sub- mission ; but left the plaintiff to go on with the cause. Doe d. Fisher V. Saunders, 3 B. & Ad. 783 ; 1 Law J., K. B. 273. AWARD. 47 A cause was referred by order of Nisi Prius to the decision of an arbitrator, so as to make his award before the fourth day of Easter term, with power to enlarge the time, but the order did not direct in what mode the time was to be enlarged. Two days before the time had expired, the arbitrator, in the presence of both parties, appointed another meeting on the 29th June, on which day one of the parties not having attended, the arbitrator made his award : — Held, that the appointment of a further day for the reference, neither party making any objection to it, amounted to a due enlargement of the time. The power given to the court, or a judge, by 3 & 4 Will. 4, c. 42, s. 39, to enlarge the time for an arbitrator to make his award, is general, and is not confined to cases Avhere there has been a revocation of the sub- mission. Burley v. Stephens, 1 Mee. & W. 15G. An arbitrator who had power to enlarge the time for making his award, by indorsement on the order of reference, made the following indorsement : — " I direct that a rule of this court shall be applied for by counsel's hand, to enlarge the time for making my award." No such rule was apphed for : but the parties subsequently attended meet- ings before the arbitrator, and made no objection to the regularity of the enlargement : — Held, first, that the indorsement was itself a sufficient enlargement at the time: secondly, that if it were not, the irregularity had been waived. Hallett v. Hallett, 5 Mee. & W. 25. Poiver of the court to enlarge the time for making an award.^ The power of the court or a judge, under 3 & 4 Will. 4, c. 42, s. 39, to enlarge the time of making an award, is not confined to the case where a party to the reference has revoked his submission. Two causes were referred to an arbitrator, who was to make bis award on a cer- tain day, or on such further day as he should appoint. The arbitrator having allowed the time to expire without making any award : — Held, that the court were authorised under this act to enlarge the time for making the award. Parbery v. Newnham, and Newnham v. Parbery, 7 Mee. & VV. 378 ; 10 Law J., Ex. l69. Computation of time for making award.^ On a reference to arbitra- tion it was agreed that the award should be made by the umpire within two calendar months next after the matters were referred to him. The umpire was appointed on the 29th June, and the time for making the award was enlarged for three months : — Held, that, in computing this time, the 29th June was to be excluded; and that, consequently, an award made on the 29th of September was within the time limited. Ex parte Higham and Jessop, 1 Woll. 28, B. C. The word " months" in a submission means lunar months. In re Swinford, 6 M. & Selw. 226. Award — costs of the cause to abide the event of the award, or costs of the reference and award to abide the event.'] Where, in an order of reference, the costs of the cause are to abide the event of the award, the arbitrator is bound to find specifically upon each isstie. But where the costs of the reference and award only are to abide the event, he is not bound so to find, unless required by the terms of the rule of reference. Bourhe v. Lloyd, 12 Law J., Ex. 4. 48 AWARD. AwarJ on. several issues.] To a declaration containing three counts, the defendant pleaded non assumpsit, tender, set-off, and payment, upon which issues were joined. The cause being referred at Nisi Prius, the costs of the cause to abide the event of the award, the arbitrator found for the plaintiff on the first, third, and fourth issues ; and on the second for the defendant : — Held, that the finding was sufficient, and that it was not necessary there should be distinct find- ings on the issues raised by the plea of non assumpsit upon each separate count of the declaration. Adams v. Rowe, 10 Jur. 840, Q.. B. An arbitrator is not bound to do more than find on the whole for one party, and where the arbitrator had neglected to point out on what count the money was found to be due or whether upon all, the court refused to disturb the award. Clements v. Fuller, 11 Jur. 242, Q. B. In an action, in which two issues were raised, each of which went to the whole cause of action, all matters in difference were referred ; the costs of the cause to abide the event. The arbitrators awarded generally that the action should be no further prosecuted, and that a sum should be paid by the defendant to the plaintiff: — Held, that the award sufficiently ascertained the event, and was final. Hobson v. Stewart, 16 Law J., Q. B. 145. Where to one count in a declaration, there were five pleas, each of which, if true, was a complete answer to the count, and the cause was referred to arbitration, the costs of the action and of the award to abide the event of the award, and the arbitrator found that the plain- tiff had a good cause of action on that count, a rule was made abso- lute, ordering the master to tax the plaintiff his costs on all the issues arising on that count. Quaere, — whether such a finding does not, in fact, amount to a distinct finding upon each of the issues. Williamson v. Lock, 14 Law J., Q. B. 93. Issue having been joined in an action for goods sold, with the common money counts, to which the defendant pleaded non assump- sit, payment, and a set-off, it was agreed that all proceedings in the action should be stayed, and that all matters in difference should be referred to two arbitrators, who were to award concerning the same, the costs of the action to abide the event of the award. The arbitra- tors awarded that the defendant was indebted to the plaintiff in the sum of 68/. lis. 5c/., and that final judgment should be entered up for the plaintiff for that sum, besides his costs of suit, to be ta.xed, and that that sum with costs should be paid by the defendant to the plaintiff: — Held, that there being no finding on all the issues, the award was bad. Kilburn v. Kilburn, 14 Law J., Ex. 160. On a reference of all matters in difference, a party put forward a claim for a debt, and also for contingent damages, and the other party claimed and gave evidence of a set-off. The arbitrators awarded generally, that a sum of 515/. was due from the latter to the former : — Held, that the award was good, though it did not specify how much had been allowed for the debt, and how much for the damages, or whether the set-off had been allowed or not. Brown v. Croydon Canal Company, 9 Ad. & E. 522 ; 8 Law J., Q. B. 92 ; 1 P. & D. 391. Where several issues are referred to an arbitrator, it is not indispen- AWARD. 49 sably necessary for him to award on each issue, if his intention, as to each of them, is sufficiently clear from the general language of the award. Hunt v. Hunt, 5 Dowl. 442. Upon a reference of an action on a promissory note, and on an account stated, to which the pleas were, as to the first count, fraud and covin, and as to the second, non assumpsit, the arbitrator found that the plaintiff "had good cause of action for, aiid was and is legally entitled to have, claim, and recover the sum of, &c., being the amount of the promissory note mentioned in the pleadings :" — Held, that the award was bad, as not disposing of both the issues. Gisborne v. Hurt, 5 Mee. & W. 50 ; 8 Law J., Ex. 197 ; 7 Dowl. 402, If, upon a reference of a cause to arbitration, the costs to abide the event, there is a finding for the defendant upon a plea which covers the whole cause of action, it is no objection to the award that on other issues the arbitrator has found for the plaintiff, without damages. Savage v. Ashivin, 4 Mee. & W. 530 ; 8 Law J., Ex. 43. In an action of debt containing several common counts, the defendant pleaded the general issue and several special pleas. An arbitrator, to whom the cause was referred, awarded, that there was justly due and owing to the plaintiff from the defendant the sum of GOl. 9s. 7d. : — Held, that the award was bad, for not disposing of the issues. Morgan v. Thomas, 9 Jur., Ex. 92. The court, on deciding this case, intimated that in future orders of reference ought to contain a clause as follows : — " That the said arbi- trator shall find generally for the plaintiff or for the defendant and not find upon any specific issues unless required so to do." And this clause is now inserted in the orders of reference in the Exchequer. Award in several causes referred.'] AVhere several actions are referred, "the costs of the several actions, and of all matters and things relating thereto, to abide the event of the award," and the arbitrator directs the costs of each action to be paid to the successful party in each suit, the award is good, although the same party has not succeeded in all the actions. After the award is made, it is too late for the unsuccessful party to object that certain infants have been parties to the submission, and that certain other interested persons have not been parties to it. Jones V. Powell, 6 Dowl. 483. Copy of an award verified hy affidavit.'] An affidavit verifying a copy of an award to be a true copy need not state that the copy has been compared with the original award. Huwhjard and another v. Stokes and others, 2 Dowl. & L. 936, Q. B. Aioard — examination of witnesses on oath— variance in sum aioarded and the order.] Where an arbitrator omitted to state in his award that the evidence he had heard was ujjon oath, and likewise to whom the costs of the award were to be paid by the unsucessful party: — Held, that the award was good. Where the arbitrator awarded a larger sum than that mentioned in the order of reference, and there appeared to be a mistake in that order as to the sum : — Semble, that the court would amend that order. Hannan v. Jube, 10 Jur. 92G, Q.B. 50 AWARD. Award where the arbitrntor has had a vieio.'] Where, by agreement of reference, the arbitrator is to take a view ]>revious to entcrinjr on the reference, and he takes such view, an omission to recite the fact is no objection to his award. Spence v. Eastern Counties Railway, 7 Dowl. G()7. Time for moving to enter a verdict pursuant to an award.~\ By order of Nisi Prins a verdict was taken for the plaintiff, subject to the award of an arbitrator, to whom all matters in difference in the cause were referred, and who was to state, on the face of his award, such points of law as either of the parties might require. The arbitrator, on the 13th of November, made his award, and directed that, unless the court should otherwise order, the verdict for the plaintiff should stand on all the issues, bnt that the damages should be reduced ; and jiroceeded to direct, that in certain events, and with reference to certain points of law stated in his award, the verdict should be entered for the plaintiff on the first, and for the defendants on the second and third issues. The parties had notice of the award on the I6th November: — Held, that the defendants could not in Hilary term move to enter a verdict on the points stated by the arbitrator, but should have moved within four days after notice of the award. Puxton v. Gt. North of Enrjland Railway, 15 Law J., Q. B. 270 ; 10 Jur. 430. The sum awarded on reference should not exceed the amount of the particulars of demand.~\ A verdict was entered, by consent, for a sum greater than that claimed by the ])articu]ars of demand, and the amount of damages in the cause was referred to arbitration. The arbitrator having awarded to the plaintiff the amount of the verdict, on motion to set aside the award :■ — Semble, that the particulars of demand were not necessarily before the arbitrator; and therefore that the defendant, if he meant to limit the plaintiff's demand, ought to have brought the particulars before the arbitrator. Kenrick v. Phillips, 7 Mee. & V/. 415 ; 10 Law J., Ex. 226. An award directing proceedings in two causes to cease, and a sum of money to be paid by defendant good.'] Two causes, (brought by the same plaintiff against the same defendant; in one of which a declara- tion had been delivered, and in the other a writ only had issued,) were referred to arbitration, the cost of the causes, reference, and award to abide the event. The arbitrator, after stating that he made his award concerning the premises, adjudged and determined that all further proceedings should cease, and that the defendant should pay to the plaintiff" a certain sum in full of all dem.ands in the said causes : — Held, that the award was good. Wynne v. Edwards, 1 Dowl. & L. 976, Ex. Proceedings for execution under an award.'] The court in general requires the same formalities to be observed as to personal service, where the application is with a view to issue execution under an award,. by virtue of 1 & 2 Vic. c. 110, s. IS, as in cases of attachment. Haw- kins V. Benton and another, 2 Dowl. & L. 465, Q. B. Award directing money to be paid on a certain day.] An award. AWARD. 51 dated "13th October, 1840," directed a sura of money to be paid " 28th October next " : — Held, that it meant the 2Sth of that month. Brown v. Smith, 8 Dowl. 835, Ex. Award must he explicit.'] An award will not be enforced on motion, if there be an ambiguity on the face of it as to the identity of a mate- rial deed, and as to the precise amount of costs to be paid. Spooner v. Pft^Me, 11 Jur. B. C. 242. Award directing a nonsuit to he entered^ A cause, and all matters in difference between the parties, were referred by order of Nisi Prius to the award, arbitrament, final end and determination of A. B. ; and the order provided that the verdict should be entered for the plaintiff for the damages in the declaration, subject to be reduced or vacated, or, instead thereof, a verdict for the defendant, or a nonsuit entered according to his award. There were no matters in difterence except in the cause. The arbitrator awarded that the verdict should be vacated, and a nonsuit entered : — Held, bad, as not finally determining the matters in difference in the cause. — Parke, B. dissentiente. Wild and others v. Holt and another, 1 1 Law J., Ex. 263. Award had, directing costs between attorney and client.'] A cause, and all matters in difference, were referred to two arbitrators, the costs of the action, reference and award, and the costs incident thereto, to be in the discretion of the arbitrators. They awarded, that the de- fendant should pay the plaintiff 50Z. towards the costs of the cause and reference, and that the plaintiff should pay his own and the de- fendant's costs in the cause and reference, to be taxed as between at- torney and client : — Held, that the award was bad, inasmuch as the order to tax costs as between attorney and client was an excess of authority, and so connectegl with the rest of the award that it could not be rejected as surplusage. Seccombe v. Babb, 6 Mee. & W. 129 ; 9 Law J.', Ex. G5; 8 Dowl. 167. Award directing a verdict to be entered under an order of reference.] Where a cause was referred by judge's order before trial, which gave no express power to direct a verdict to be entered, and the arbitrator awarded that a verdict should be entered for the plaintiff, with damages and costs, the court refused a rule to show cause why the award should not be set aside. A rule afterwards obtained to enforce the award by attachment was discharged, v/ith costs. Cock v. Gent and others, 15 Law J,, Ex. 33 ; 13 Mee. & W. 364; and 14 Mee. & W. 680. An award finding a plea to the whole action for defendant need not assess damages on the issues for plaintiff .] Where an arbitrator finds for the defendant upon issues raised on pleas which cover the whole cause of action, he need not in his award assess damages on such issues as he finds for the plaintiff. Warwick and another v. Cox, 1 Dowl. & L. 986, Ex. Award by two of three arbitrators.] A cause, and all matters in difference, were referred to the arbitration of three persons, the award D 2 52 AWARD. of the three, or of any two of them, to be final. The award purported on the face of it to be made by all three, but was executed by two only, the third having refused to sign it when requested to do so : — Held, that the award was good as the award of the two, and supported an issue in which it was so stated. White v. Sharp, 12 Mee. & W. 712. Aivnrd on a reference before plen.'] Where the reference of an action is made before plea :— Held that the arbitrator is not bound to find spe- cifically on each count. Bearup v. Peacock, 2 Dowl. & L. 850; 14 Mee. & W. 149 ; 14 Law J., Ex. 232. Execution of award.'] An award ought to be signed by all the arbi- trators, in the presence of each other. Stalworth v. Inns, 13 Mee. & W. 466 ; 2 Dowl. & L. 428 ; 14 Law J., Ex. 81. The court, however, refused to set aside an award on motion, be- cause it was signed by the several arbitrators at diflferent times and places, but intimated that they should not enforce it by attachment or rule. lb. Award directing verdict to be entered not authorised by the order of reference, bad.] After issue joined, a cause, and all matters in differ- ence, were referred, by a judge's order, to arbitration, but without power to the arbitrator to direct a verdict to be entered ; the costs of the cause to abide the event, and the costs of the reference and award to be in the discretion of the arbitrator. The arbitrator, by his award, directed that a verdict should be entered for the defendants on all the issues, that each party should pay his own costs of the reference and a moiety of the costs of the award. He further awarded, that the par- ties should execute mutual general releases of all and all manner of actions, &c. to each other :— Held, that the arbitrator having exceeded his authority in directing a verdict to be entered, that part of the award could not be rejected as surplusage, as, with respect to costs, it was an event inconsistent with the award of releases ; and if the release did not extend to the action referred, there was, in effect, no final deter- mination of the action. Hawhyard and another v. Greenwood and others, 10 Jur. 14, B. C, Coleridge ; 2 Dowl. & L. 936, Q. B. Award — arbitrator exceeding his jurisdiction.'] If an arbitrator commit an excess of his authority, and decide upon what is not sub- mitted to his determination, the award is good for so much as is within his jurisdiction ; a nullity for that which is without it. In re Dod- dington, 8 Law J., C. P. 331 ; 5 Bing. N. C. 591 ; 7 Scott, 733 ; and Doddington v. Bailword, 7 Dowl. 740. It is an excess of authority in an arbitrator to award a stet processus where, by the submission, the costs are to abide the legal event. Hunt V. Hunt, 5 Dowl. 442. It is also an excess of jurisdiction, in such a case, for the arbitrator to determine the amount of the costs. If, however, an arbitrator directs mutual releases on payment of a sum of money over which he has jurisdiction, as well as of a sum over which he has none, the award is good as to the former. Kendrich v. Davies, 5 Dowl. 693. Award, amendment of, by the arbitrator.] By an order of reference AWARD. 53 the court had power, on the vahdity of an award being disputed, to remit the matters referred to the reconsideration of the arbitrator. An award having been made, and containing a defect, the attorneys agreed verbally that the arbitrator should amend it ; subsequently to which the defendants' attorney obtained a judge's order that the matters re- ferred should be remitted to the arbitrator for his reconsideration. The arbitrator altered the award without giving notice to either party of his intention to do so, neither party having requested him to hear fresh evidence, and he did not recite the judge's order: — Held, that the arbitrator was not bound to give notice to the parties, or to recite the judge's order. Baker v. Hunter, 16 Law J., Ex. 203. Award not final, referred back to the arbitrator.^ Where the court referred back the matters in difference to the arbitrator, on the ground of the award not being final: — Held, that he was bound to hear evidence relating thereto, although come to the party's knowledge subsequent to the making of the original award : a reference giving the court power to remit the matters back to the arbitrator should be made in the terms, " or any of them," so that the court may Hmit the remittal, and modify the inquiry. Sed quaere, if the court has power to remit the case a second time. Nichalls v. Warren, 2 Dowl. & L. 549. Rule to pay money awarded — service of award. ~\ The court will not grant a rule calling upon a party to pay money found by an award to be due from him, without an affidavit ot the service of the award. Fear- son V. Archbold, 11 Mee. & W. 108. Award bad for uncertainty.^ A. commenced a special action on the case against B. and delivered his declaration, which consisted of two counts. Before plea pleaded, all matters in difference between the parties to the cause were referred, by a judge's order, to the award of an arbitrator, the costs of the cause to abide the event of the award, and the costs of the reference and award to be in the discretion of the arbitrator. The award, which did not purport to have been made "of and concerning the premises," merely directed that B. should pay to A. the sum of 167^- 6s. -id. without saying upon what account : — Held, that this award was bad for uncertainty, as it did not show in respect of what matters in difference the money was to be paid, and did not contain any finding upon which the master could tax the costs. Crosbie V. Holmes, 10 Jur. 13y, B. C, Williams, J. ; 15 Law J., Q. B. 125. To refer back an award.^ The application to send back the award should be before the first four days of the term. Lyn^ v. Sutton, 3 Scott, 187; 5 Dowl. 39. Aivard referred back for error in plaintiff 's Christian name.^ Where the plaintiff was described in the award by a wrong Christian name, and the order of reference provided for referring back the award for amendment, the court referred it to him to correct the mistake. Howett V. Clements, 8 Scott, N. S. 851. Service of rule to pay money binder an aivard, defendant ubroad.~\ AVhere it appeared, upon the face of the affidavit, that the defendant 54 AWARD. was abroad, the court refused to grant a rule, (under 1 & 2 Vic. c. 110, s. IS,) callint^ upon him to show cause why he should not pay a cer- tain sum of money, due on an award ; the proposed service of the rule being by leaving a copy at his last known place of abode in England, and by sticising up another cojiy in the master's office. Wilson V. Foster, 1 Dowl. & L, 49G, C. P. Award omitting to decide on certain matters in difference.^ The court will not grant a rule nisi for setting aside an award, on the ground that it omits to decide on certain matters in difference, unless it plainly appears from the affidavit that those matters were distinctly brought under the ar])itrator's attention, and that he was expressly required to adjudicate upon them. Layman v. Gowan, 10 Law J., C. P. 95. An arbitrator may award costs to be paid by an infant plaintiff .'] An action on an apprentice deed was referred to arbitration by order of Nisi Prius, together with two other actions, in one of which the infant apprentice sued by his next friend, the costs of the causes to abide the event, and the costs of the reference and award to be in the discretion of the arbitrator. The arbitrator awarded that the verdict in the above cause should be entered for the defendant, that the two other actions should be no further prosecuted, and that the infant should pay the costs of the reference and award : — Held, that the award was not bad by reason of its directing an infant to pay costs. Proudfoot v. Boile, 3 Dowh & L. 524, Ex. ; 15 Mee. & W. 198. Rule for payment of money tinder an award refused ichen the validity of award doubtful.^ Where the validity of an award was doubtful, the court refused to make an order for payment of the sum awarded under 1 & 2 Vic. c. 110, s. 18, which would have the effect of a final judgment. Dickinson v. Allsop, 13 Mee. & W. 722; 2 Dowl. &L. 65/. Hule for payment of money under an aivard — time for the return o/".] The rule caUing upon a party residing in the country to pay money on an award is a six-day rule, and the court refused to shorten the time to bring it within the term. Arthur v. Marshall, 13 Mee. & W. 465 ; 2 Dowl. & L. 376. Mtm. The ground of this decision was that the plaintiff elected to take the rule out of the office with this return, and the couit saw no reason for permitting him to change his mind. The practice is to make rules returnable at shorter periods than six or even four days towards the close of term. Execution m,ay issue on rule absolute to pay money pursuant to an award.^ The superior courts have power to call on a party to show cause why he should not pay money pursuant to an award ; and on a rule for this purpose being made absolute, execution may issue under 1 & 2 Vic. c. 110, s. 18 ; Doe v. Amey, 10 Law J., Ex. 466. Setting aside award— form cf rule nisiJ] In a rule nisi to set aside an award, it is not necessary to state that it is made upon reading the award or a copy thereof, if the ground for setting it aside does not AY\'ARD. 55 appear on the award. And it is not the duty of the officer of the court to decide ^vhetber the award or a copy should be mentioned in the rule nisi, but he should draiv the rule upon the materials furnished by the party applying for it, who is alone responsiljle for the sufficiency of those materials. Guthrie and another v. Bowman, MS. Exch. H. T. 1S45. The grounds of objection in a rule for setting aside an award must be stated specifically, and not in general terras. As, " that the arbi- trator has exceeded his authority, and that the award is uncertain and not final," the reasons why should be stated. Gray v. Leaf, 8 Dowl. G54, B. C, and Boodie v. Davies, 4 N. & M. 7S8. On a motion to set aside a certificate by an arbitrator the like rule prevails, that the grounds of objection be set out in the rule nisi. Carmichael v. Houchen, 3 N. & M. 203 ; and Whatley v. Morland, 2 C. & M. 347 ; 2 Dowl. 249. On a rule nisi to set aside an award the objection must be specifi- cally pointed out by the rule ; unless the general statement of the objection, as "that the arbitrator has exceeded his authority," be aided by specific instances contained in the affidavits. Staples v. Hay, 1 Dowl. & L. 711, Q. B. In a rule nisi for setting aside an award, an objection " that the arbitrator has not awarded on a matter in difference submitted to liim" is sufficiently specific. Dunn v. IVarlters, 9 Mee. & \Y. 293; 1 Dowl. N. S. G26. On motion to set aside award, reference to the record.'] The court may look at the record on an application to set aside an award, pursuant to an order of Nisi Prius, although the rule is not drawn up on reading it. Sherry v. Ohe, 3 Dowl. 349. Time for moving to set aside an award.] "Where by a judge's order a cause only was referred to arbitration, a motion to set aside the award made after the fourth day of the term foUowing the publication of the av.-ard was held to be too late, and the court refused to allow affidavits to be filed accounting for the delay. Riccard v. Kingdon, 15 Lav/ J., Q. B. 269. After verdict a motion to set aside an award made in vacation must be within the first four days of the ensuing term. Thompson v. Jen- nings, 10 Moore, 110. Even though it is for objections apparent on the face of it. Sell v. Carter, 2 Dowl. 245. Unless the award be published too late in the vacation, when it may- be set aside after the first four days. Bennett v. Skardon, 5 M. & R. 10; Rawsthorn v. Arnold, 6 B. & C. 629; 9 D. & R. 556. Where there is no verdict the motion must be made in the term next following the award. Emett v. Ogden, 7 Bing. 258 ; and Hay- ward V. Phillips, 6 Ad. & Ell. 119 ; I N. & P. 2SS. "Where an award is bad by reason of extrinsic matter, and not for defects on the face of it, a party disputing the award must move to set it aside within the next term after it is published ; and if he fails to do so, he cannot set up such extrinsic matter in answer to a rule for an attachment for non-performance of the award. M' Arthur v. Camp- bell, 5 B. & Ad. 518 ; 2 Ad. & E. 52 ; 4 Law J., K. B. 25. A motion to set aside an award made under an order of a judge 56 AWARD. must be made promptly after the party knows of the award bein^ made. Where such a motion was made after two terms had elapsed the court discharged it with costs, though it was alleged by the party moving that he did not believe that the other party intended to pro- ceed upon the award, as there had been a previous revocation. Worrall V. Deane, 2 Dowl. 2G1. Arbitrations entered into nnder the authority of rules of court, though not within the statute 9 & 10 Will. 3, c. 15, s. 2, are, by the discretion of the courts, governed by the statute rule as to time. Therefore, a j)arty complaining of such arbitration must move to set it aside before the last day of the next term after the award in such arbitration made and published to the parties : — Semble, an award may be said to be published, when they who are interested have notice that it is ready for delivery, on payment of reasonable costs. Musselbrook V. Dunldn, 2 M. & Sc. 74.0; 2 Law J., C. P. 71 ; 9 Bing. 605. If parties agree to refer, there being an action pending, without a judge's order, the reference is within the 9 & 10 Will. 3, c. 15, and an application to set aside the award must be made before the end of the term next after its publication. Ruskworth v. Barron, 3 Dowl. 317. An award made in pursuance of an order of nisi prius, referring a cause and other matters in ditierence, may be objected to at any time before the end of the term next after publication. In stating the grounds on which it is sought to set aside an award, it is not sufficient to state a general head of objection, as "misapprehension of the terms of the reference." Allenbij v. Proudlock, 4 Dowl. 54. Award subject to the opinion of the cotirt.'\ Where an award is made subject to the opinion of the court, the motion for that purpose must be made within the term next following. Anderson v. Fuller, 4 M. & W. 470; 7 Dowl. 51. Settinf) aside an award, wrong decision of a question of law.l The court will not set aside an award, or send it back to an arbitrator, upon affidavits alleging that he has come to a wrong decision upon a question of law. Fuller v. Fenwick, 10 Jur. 1057, C. P.; 16 Law J., C. P. 79. Motion to set aside an award, the submission not having been made a rule of court.'] Where an award was made on the 18th of September, and a rule nisi to set it aside obtained on the 24th November, and it appeared that tlie submission was not, ])y virtue of the consent clause which it contained, made a rule of court till the 30th of November, the court refused to order the rule of court to be dated as of the 24th, and to enlarge the rule nisi under it to be drawn up on reading the rule of court so dated. Ross v. Ross, 16 Law J., Q. B. 138. Setting aside award, on a supposed mistake in receiving dociimetitary evidence.'] Where the award was good upon the face of it : — Held, that a supposed mistake in law of the arbitrator in receiving in evidence books, &c., not admissible was not a sufficient ground for the court to set the award aside. Hugger v. Baker, 2 Dowl. & L. 856. Award set aside where witness was examined in the absence of one party.] Where an arbitrator questions a witness and receives state- AWARD. 57 ments from him in the absence, and without the consent of one party to the reference, the court will set the award aside, without taking into consideration the nature of the statements, or the probability of their having influenced the decision. Dobson v. Groves, 6 Q. B. 637. Award set aside, the arbitrator without authority directing judgment to be entered.^ After issue joined in an ejectment, the matters at issue in the action, together with all claims in respect of mesne profits, and all matters in difference between the parties, and of the costs of the action, and of the reference, were referred by a judge's order. The award directed judgment to be entered for the plaintiff in the action, with Is. damages, and that the plaintiff should recover, under the same judgment, a plot of land (describing it by metes and bounds), and that the defendant should pay 121. as mesne profits, and the plain- tiff's costs in the action to be taxed by the proper officer, and part of the costs of the reference and award : — Held, first, that the arbitrator had no authority to direct judgment to be entered up, and final judg- ment which had been signed was set aside ; but that, rejecting all that related to the judgment, the award sufiiciently decided the matters referred. Doe d. Body v. Cox, 15 Law J., Q. B. 31". Award will not be set aside for a defect not mentioned in rule nisiJ] Case. The declaration stated, that whereas H. wrongfully erected a mill on a close, the reversion whereof belonged to the plaintiff, the defendant wrongfully continued the mill so wrongfully erected thereon, whereby the plaintili' was injured in his reversion. Pleas, not guilty; and that the mill was not wrongfully erected, modo et forma. The cause was referred to an arbitrator. By the order of reference the arbitrator was to direct hov/ the verdict should be entered on the different issues, with power to order what should be done between the parties. The arbitrator directed a verdict on the first issue for the plaintiff, without damages, and on the second issue for the defen- dant, and ordered " that nothing be done by the parties" : — Held, that the findings on the issues were not inconsistent and repugnant to each other ; and that the arbitrator was justified in ordering that nothing should be done by the parties. Held, also, that though the award was defective for not awarding nominal damages at least; yet as the defect was not made a ground of objection in the rule nisi obtained for setting aside the award, it could not afterwards be raised. Grenfield v. Edgecomb, 14 Law J., Q. B. 322. Award not set aside for surplusage.'] A cause was referred to three persons to make an award, and in case they should differ, to an umpire. The award contained no statement that the arbitrators had differed, but recited that they had " considered the decision of the umpire" : — Held, that the award was not void in consequence of the mistake, but that the words were surplusage. It appeared on affidavit that they had not consulted the umpire at all : — Held, that the words were merely surplusage, and must be presumed to have been inserted by mistake. Harlow v. Read, 14 Law J., C. P. 239. Award bad ichere the arbitrators awarded interest without authority to do so^ "Where the arbitrators found that certain sums were due D 3 58 AWARD. for princip:\l p.nd interest at the time of the reference, in respect of two dirt'erent funds, and awarded that a gross sum should be paid, without ajiporiioning it hetween the two funds to which it belonged ; they also awarded interest to be paid in respect of those suras, and went on to direct that certain payment of interest should be made in future : — Held, that the award was bad, for not distinguishing hetween the two funds in respect of which the parties were entitled to the money found to be due ; and also that they had gone beyond the powers of the submission in awarding interest subsequent to the reference. In re G. Morphett and another, 14 Law J., Q. B. 259- Award, ohjcct'wn to, notice of meetings.'] One of the parties objected to the award, on the ground that he had not had notice of two meet- ings, at the first of which no evidence was received, but the arbitrators merely adjourned ; and at the second of which he attended, and handed in a formal protest against the proceedings, upon a ground totally difierent from that of want of notice : — Held, that he was not entitled to notice of the first meeting, and that he had by his protest waived the want of notice of the second. In re G. Morphett and another, 14 Law J., Q. B. 259. Award defective where the arbitrator enlarged the time on a copy instead of the original order.] On a motion for the payment of money under an award, it appeared, that the order of reference authorised the arbitrator to enlarge the time for making his award by his in- dorsement thereon ; the arbitrator enlarged the time by indorsements on the copy of the order of reference, which was subsequently taken to the judges' clerk, who procured the judges' signature to the copy order, which was then made a rule of court: — Held, that there was no valid enlargement of the time by the arbitrator, and that the rule must be discharged with costs. Strother v. Steavenson, MS., Exch. T. T. 1847. Irregularity in proceedings of arbitrators waived, if not objected to in time.] Tlie court refused to set aside an award on the ground of the irregular conduct of the arbitrators, in having examined witnesses m the absence of and without notice to one of the parties to the order of reference, v.-here it appeared, that the party complaining of the irregularity was made acquainted with it three weeks before the award was made, and gave no notice to the arbitrators of his intention to dispute the validity of their award on that account ; and where it further appeared that no substantial injustice had been occasioned by the irregularity. Bignallv. Gale, 10 Law J., C. P. 169. Award, death of one of the parties previous to making.] By an order of reference in a cause, the award was to be delivered to the parties, or either of them, or if they or either of them should be dead before the making thereof, to their respective personal representatives who should require the same. One of the parties having died : — Held, that the court had no power to direct the arbitrator to proceed. Lewin and another v. Holbrook, 12 Law J., Ex. 26/. A motion to set aside a judgment signed on an aicard.] Where a BML—Holdinff to. 59 party has allowed a term to intervene without applying to set aside an award ; and judgment is signed in pursuance of it, it is still com- petent to him to move to set aside the judgment. Brooks v. Parsons, 1 Dowl & L. 691, Q. B. Award omitting to state that the witnesses were sworn, and costs of award.l Where an arbitrator omitted to state in his award that the evidence he had heard was upon oath, and likewise to whom the costs of the award were to be paid by the unsuccessful party : — Held, that the award was good. Annan v. Job, 10 Jur. 926, B. C. — Patteson. Award, tchat amounts to an.'] A number of coach proprietors, who horsed a coach, were in the habit of having monthly accounts made out, containing the name of proprietors, the amount of the receipts and disbursements, the number of miles worked by each, and the proportion of the earnings to which each was entitled. These accounts were made out by the clerk of one of the proprietors, partly from materials furnished by them, and ])artly from the way-bills ; and the practice was for the clerk to send to each proprietor a copy of the monthly account, showing the amount which each had to receive or pay, and the proprietor or proprietors from or to whom he was to receive or pay such amount: — Held, that this account was not an award, and was admissible in evidence without a stamp. Goodyear v. Simpson, 15 Mee. & W. 16 ; 15 Law J., Ex. 191. BAIL — Holding to. Affidavit to hold a defendant to bail — by whom to be made.'] The affidavit need not be sworn to by the creditor himself (1 Chit. Rep. 2S), and, if made by one of several creditors, it suffices (4 T. R. 176), and may be made without consent of co-creditor (1 Lord Raym. 331). When made by an agent, it is not essential to show his connexion with the creditor, or state that he is agent (1 Chit. Rep. 10 ; 5 Dowl. 485), or explain his means of knowing the facts disclosed (4 Taunt. 231), provided he swear positively to the existence of the debt. Short v. Campbell, 3 Dowl. 487 ; Lee v. Sellwood, 9 Price, 322 ; HolUday v. Lawes, 3 Bing. 541 ; James v. Trevanion, 5 Dowl. 275. Affidavit to hold to bail — before whom to be sivorn.] The party ad- ministering the oath must be duly authorised, or the defendant will be discharged. Hughes v. Jones, 1 B. & Ad. 3S8. When sworn before a commissioner of one court in vacation, the judge of another court may grant an order to act upon it. Griffin v. Taylor, 6 Dowl. 620. If sworn before a commissioner he must be correctly described. Howard v. Brown, 4 Bing. 393 j and Rex v. Hare, 13 East, 189. Affidavit to hold to hail under stnt. 1 Vic. c. 110.] The dejjonent must state that he believes the defendant "is about to quit England unless apprehended," and set forth the grounds for such belief. Bate- manv. Dunn, 5 Bing. N.S. 49 ; 7 Dowl. 105 ; 6 Scott, 739. The affidavit on which an arrest is to be founded under 1 & 2 Vict. 60 BAIL— Holdinff to. c. 110, s. 3, need not state that the fleponcnt has probable cause for believinsf that the defendant is about to quit Enpfland. It is enough that the affidavit enables the judge to form that belief. Willis v. Snook, 10 Law J., Ex. 2()0; 8 Mee. & W. 147. Under the stat. 1 & 2 Vict. c. 110, the criterion is, whether the de- fendant is about to leave England for a mere temporary ])urpose, or for so long as would prejudice the plaintitF. Larchin v. Willan, 4 Mee. & W. 351 ; 7 Dowl. 11. After a judge's order to stay proceedings for a fixed time, the plain- tiff" cannot arrest under the above statute. Bull v. Stunlcy, C Mee. & W. 396. Mere suspicion that a defendant is about to leave England is not sufficient to authorise an arrest. Harvey v. O'Meara, 7 Dowl. 725, B.C. Jmh/e's order to hold to bail.'] Under the 1 & 2 Vic. c. 110, s. 3, a judge has discretion to make or not to make an order to hold a defen- dant to bail, on a plaintiff's showing that be is about to leave England. And where such order has been made, the bail-bond may be cancelled, if it shall appear on the defendant's showing that the intended absence was only temporary, or that the order ought not in discretion to have been made. Under the provisions of section C, the court has power to set aside any order made by any judge under section 3. Hitchcock V, Hunter, 10 Law J., Q. B. 87. To support a rule by a defendant to rescind (under sect. 6) a judge's order made under 1 & 2 Vic. c. 110, s. 3, he must swear positively that he is not about to leave England. The court will not allow the defendant's affidavit to be amended after cause is shown against the rule. Robinson v. Gardner, 7 Dowl. 716. Jurisdiction of the court to review an order to hold to bail.'] The defendant had been arrested on a capias issued by judge's order under 1 & 2 Vic. c. 110, on the ground of his alleged intention to quit the country. It had been submitted to a judge at chambers, that the facts detailed in the affidavit did not warrant the issuing of the order, and he declined to interfere ; the question was by motion brought before the court: — Held, that the court has power to review the order, and that as the order was erroneous the defendant was entitled to be dis- charged. Graham v. Sandrinelli, 10 Jur. 1061 ; 16 Law J., Ex. (J7' A party so arrested may take the opinion of a second judge as to the propriety of his being kept in custody, and that opinion is likewise subject to review by the court. lb. Capias to hold to bail in a county palatine.] A judge of the superior courts has power, under the stat. 1 & 2 Vic. 3. 110, s. 3, to hold a party to bail within the counties palatine, for a sum between 20/. and 50/. Brown v. M'Millan, 10 Law J., Ex. 147. Capias to hold to bail and prcecipe — variance in.] The defendant was arrested and held to bail upon a writ indorsed, " Bail by affidavit/' and specifying the amount of the sum sworn to. The praecipe did not BAIL — Deposit in lieu of . 61 state the amount of the debt, nor did it refer to the affidavit : — Held, that such difference between the praecipe and the writ was unim- portant and immaterial ; and that the latter should not, therefore, be set aside. Usborne v. Pennell, 3 Law J., C. P. 174 ; 10 Bing, 531 ; 4 M. & Sc. 431. A capias to hold to bail cannot issue on a judgment previous to\ 8f 2 Vic. c. 110.] Where judgment was obtained in an action in 1831, and the defendant went abroad, and remained there until 1842, and the plaintiff then sued out a sci. fa. to revive the judgment, and on that sci. fa. upon an affidavit of the presumed intention of the de- fendant to quit England, procured a writ of capias, by order of a judge at chambers ; and the defendant was arrested under that writ, the court ordered the defendant to be discharged out of custody : for if proceedings by sci. fa. are merely a continuance of the original action, and do not constitute a new suit, the power to arrest is taken away by the 1 & 2 Vic. c. 110, s. 5 ; and if they are to be viewed as the com- mencement of a fresh action, no capias can be granted, as the 1 & 2 Vic. c. 110, ss. 2 & 3, refer only to actions where the defendant was liable to arrest at the time of the passing of that act. Arjassiz and Wife V. Palmer, 1 Dowl. & L. IS, C. P. Affidavit of debt including interest in the amount claimed.^ An affi- davit of debt claiming part of an integral sum for interest, should show that it arose from some contract for the payment of interest ; and, therefore, an affidavit, stating the debt to be partly " for interest upon and for the forbearance to the said defendant by this deponent, at the said defendant's request, of monies due and owing from the said de- fendant to this deponent," is bad. Nealev. Snoulten, 15 Law J., C. P. 48; 3 Dowh& L. 422. Affidavits to hold to bail used previously in another cause and court admissible.'} On an application to a baron of the Exchequer to hold a defendant to bail, affidavits used shortly before on a similar applica- tion against the same defendant at the suit of another plaintiff", and in another court, were held to be admissible. Langston v. Wetherell, 14 Law J. Ex. 229 ; 14 Mee. & W. 104. Affidavit for judges^ order to hold to bail.} An affidavit to hold to bail, under 1 & 2 Vic. c. 110, stated " that the defendant was a lieu- tenant in the 73th regiment of foot, which regiment is under orders to embark for India; and deponent believes, and has no doubt, that it is the intention of the defendant to embark with his regiment, and quit England, on mihtary service, for India :" — Held, sufficient, xls- kenheim v. Colegrave, 13 Mee. & Vv^ G20 ; 2 Dowl. & L. 642 ; 14 Law J., Ex. 113. BAIL — Deposit in lieu of. Deposit of money in lieu of bail.} A deposit in lieu of bail after the time of putting in has expired is not equivalent to putting in and perfecting bail, and therefore the plaintiff" is entitled to the money. Hannah v. Willis, G Dowl. 417 ; 4 Bing. N. S. 310. A plaintiff is not entitled to receive out of court money paid in by 62 BAIL — Deposit in lieu of. defendant in lieu of bail under the 7 & 8 Geo. 4, c. 71, s. 2, unless judirment has been obtained, or the suit otherwise legally determined- Johuson V. Wall, 4 Dowl. 315, B.C. To entitle a defendant to a return of his deposit in lieu of bail he must have perfected bail in time, but the plaintiff must elect between the money and the bail. Geach v. Coppiii, 3 Dowl. 74, B. C. An afhdavit by the defendant that bail was justified, is sufficient to entitle him to take the money out of court, unless there be a counter affidavit thai it was not justified in time. Younc/ v. Maltby, 3 Dowl. 604, B.C. A party who makes his deposit being privileged from arrest is en- titled to have it returned. Pitt v. Coombs, 4 N. & M. 535, K. B. On an application under the 7 & 8 Geo. 4, c. 71, s. 2, to take money and costs out of court which have been deposited in lieu of bail, if the cause is in such a state that issue may be joined l)efore the rule is disposed of, the court will grant it with a stay of proceedings. Bloor V. Cox, 6 Dowl. 266, B. C. Money having been deposited in lieu of bail, and an order for better particulars with a stay of proceedings having remained unobeyed for a year, the court refused to grant a rule for taking the money out of court. Horden v. Harbourn, 7 Dowl. 54G, B. C. Where a party goes into custody under 1 & 2 Vic. c. 110, he is not entitled to have the money deposited returned to him. Harrison v. Bickinson, 4 Mee. & W. 355 ; 7 Dowl. 6. The application to take the money out by the defendant is too late after issue joined. Ferrall v. Alexander, 1 Dowl. 132, B.C.; and Hanwell v. Mure, 2 Dowl. 155, B. C. A third person who deposits money in lieu of bail is not entitled to take it out after judgment though the defendant renders. Bull v. Turner, 4 Dowl. 734 ; 1 Mee. & W. 47. The rule to take out of court money deposited in lieu of bail is only nisi. Grant v. Willis, 4 Dowl. 581, B. C. Where a defendant has deposited money in court pursuant to 7 & 8 Geo. 4, c. 71, s. 2, to abide the event of the suit, and he succeeds, the rule for taking the money out of court is nisi in the first instance. Lover v. Tohnin, 5 Dowl. 388, B. C. Where money has been paid into court pursuant to the 7 & 8 Geo. 4, c. 71, and a rule for judgment as in case of a nonsuit is moved for, the court will not add to that rule an application to take the money out of court, but that must be the subject of a separate rule, after the former has been decided. De BedoUiere v. Rt/un, 7 Dowl. 615, B.C. The court has no power to direct money deposited in lieu of bail to be transferred to a j)ayment into court on account of a plea of tender. Stultz v. Heneage, 2 Dowl. 806 ; 10 Bing. 561 ; 4 M. & Sc. 472. Where money is paid into court in lieu of bail, not by the defendant himself, but by one of the bail, and the plaintiff" obtains judgment, he is entitled to have the money paid out to him in discharge of the debt and costs. Bull v. Turner, 1 Mee. & W. 47. Costs of rule for taking money out of court deposited in lieu of bail, and of two rules by drfcndant.^ The defendant being held to bail for the amount of a bill of exchange, paid the sheriff" the sum indorsed BILL OF EXCEPTIONS. 63 on the writ, and 10?. for costs, under the statute 43 Geo. 3, c. 46, s. 2, but neglected to perfect special bail, or deposit the sum in lieu of bail under the statute 7 & S Geo. 4, c. 71, s. 2, and the plaintitF ob- tained a rule, which, upon cause shown, was made absolute for taking the money out of court, which he accordingly did. The defend- ant obtained a rule, calling upon the plaintitF to show cause why the money taken out, with a further sum of lOZ. paid into court, should not be deemed equivalent to putting in and perfecting special bail, which rule, upon discussion, was discharged. Nothing was said about costs in either of these rules. Finally, the defendant obtained a rule for delivering up the bill of exchange on which the litigation arose, and the payment of the 10/. in the hands of the officer, upon payment of interest on the said bill, with costs to be taxed by the officer. Upon taxation of costs, the master having refused to allow the plaintiff his costs on either of the three rules : — Held, that he was right in refusing him the costs of the rule for taking the money out of court, and of showing cause against the rule for considering the sums paid in equivalent to putting in and perfecting special bail, inasmuch as those rules were not to be considered as in the course and progress of the cause; consequently, upon these points the tax- ation should not be reviewed ; but that the plaintiff was entitled to the costs of the rule for delivering up the bill of exchange, both by the terms of the rule, and because it was obtained and drawn up for the benefit of the defendant ; and consequently, upon this point, that the taxation should be reviewed. Hannah v. Willis, 8 Law J., C. P. 233 ; 3 Bing. N. C. 385 j 7 Scott, 357. Money deposited in lieu of bail, taken out after verdict and before ex- ecution.^ Where money was deposited in court in lieu of putting in and perfecting bail, pursuant to the statute, and the plaintiff obtained a verdict: — Held, that he was not at hberty to issue execution for the whole sum recovered, but was bound to take the sum de- posited out of court, and to hmit his execution to the surplus only. Hews V. Pyke, 2 C. & J. 359. Justifying bail— property.'] Shares in a railway company in actual operation are property in respect of which bail may justify. Pierre- point V. Brewer, 10 Jur., Ex. 79 ; 15 Law J., Ex. 81 ; 3 Dowl. & L. 487. Bail on foreign attachment^ If one of several defendants removes a foreign attachment by certiorari, he must put in bail for his co-de- fendants. Keat V. Goldstein, 1 M. & Ry. 305 ; 7 B. & C. 525. Bail in error.] On motion for leave to deposit money in court in lieu of bail in error, the court said the statute as to a deposit in lieu of bail did not apply to bail in error, and could only be done by consent. Collins V. Gwynne, 2 M. & Sc. 775. So it seems with respect to causes removed from an inferior court. Morgan v. Pedler, 4 Dowl. 645, C. P. BILL OF EXCEPTIONS. Bill of exceptions— ju-Jge's directions must be stated,] A bill of ex- 64 CERTIFICATE. ceptions to the direction of a judge must set out in terms what the judge's direction was ; it is not sufficient to state that the counsel re- quested the judge to leave certain questions to the jury, and that he refused to do so. M' Alpine v. Manr/nall, 15 Law J., Ex. Ch. 298. Bill of exceptions not sealed hy reason of the death of the judge. ~\ Where a hill of exceptions had been tendered at the trial, and the same had remained with the judge unsigned until the day of his death, the court allowed the question as to the validity of his lordship's direction to be discussed on a motion for a new trial, although several terms had elapsed from the day the cause was tried. Newton and Wife V. Boodle andothers, 11 Jur. C. P. 148 ; 16 Law J., C. P. 135. CERTIFICATE. Certificate at Nisi Prius to try a right — when may be made.'] An application having been made to a judge at Nisi Prius, to certify under the 3 & 4 Vic. c. 24, that the action was brought to try a right, &c., the judge consented to grant the certificate, but the associate omitted to make any indorsement on the record. Two years after- wards the certificate was drawn up and signed by the said judge : — Held, that as the application for the certificate was made and granted in open court, it must be considered that the parties consented to its proper entry on the record. Jones v. Williams, 2 Dowl. & L. 247, Ex. In order to entitle the plaintiff to costs under the stat. 3 & 4 Vic. c. 24, a certificate, that an action was really brought to try a right is valid, although not applied for until one of the jurors in another cause has been sworn, and not actually given until the whole are sworn ; and although the verdict was taken late at night by the associate, after the judge and counsel had retired, and the application was not made until the following morning. Helmes v. Hedges and another, 12 Law J., Q. B. 100; 2 Dowl. N. S. 350. Certificate for costs refused at Nisi Prius — application to the court.l The 3 & 4 Vic. c. 24, applies to actions of trespass and trespass on the case : and if the judge refuses to certify, the court has no power. Murriot v. Stanley, 2 Scott N. S. 60 ; 9 Dowl. 59. Certificate granted at Nisi Prius — application to the court.'] The court will not set aside a judge's certificate under 43 Ehz. c. 6, to deprive the plaintiff" of costs, if the judge has power to certify, although the certificate may have been granted on an erroneous ground. Cann v. Facey, 5 N. & M. 405. Judge's certificate at Nisi Prius under 3 Sf 4 Vic. c. 24.] A judge has the ])ower of certifying under 3 & 4 Vic. c. 24, s. 2, in all cases where it appears from the declaration that the action may have been brought to try a right, although no question of right may be raised in the subsequent pleadings. And if the certificate is informally drawn up at the trial, it may be amended afterwards ; and that, too, after a rule nisi has been granted for setting it aside. Shuttleworth v. Cocker, 10 Law J., C. P. 1 ; 9 Dowl. 76. CERTIFICATE. 65 Certificate for costs by judge at Nisi Prius or by an arbitrator.'] Under the 3 & 4 Vic. c. 24, s. 2, a judge at Nisi Prius has an unfet- tered discretion to grant or refuse to the plaintiff in an action, sug- gested to be brought to try a right, his certificate for costs, and that the action was really brought to try a right ; therefore, where a cause is referred to arbitration, and the order of reference gives to the arbitra- tor the same power as a judge at Nisi Prius, and the arbitrator refuses to grant such a certificate, the court will not interpose to con- trol his discretion. Bury v. Dunn, 1 Dowl. & L. 141, Q. B. Certificate at Nisi Prius to entitle plaintiff to costs — when must be given.] The words " immediately afterwards," in the 3 & 4 Vic. c. 24, mean that the judge must certify within such convenient time after the verdict as excludes from bis mind the operation of matters foreign to the case. Therefore where the judge, having disposed of the last cause for the day adjourned the court, and retired to his lodgings, where, within a quarter of an hour after the verdict, he granted a certificate for costs in that cause, on the application of the plaintiff's counsel: — Held, that he had authority to do so under the statute. Thompson v. Gibson and another, 8 Mee. & W. 281 ; 10 Law J., Ex. 241 ; and Page v. Pearce, 10 Law J., Ex. 434 ; 8 Mee. & W. 677. On a motion to set aside the certificate of the under-sheriff of York- shire, the taxation of costs thereon, and to refund'43/., paid by the de- fendant under protest, the under-sheriff having told the defendant at the rising of the court that he should not give a certificate, but afterwards, on looking into the cases, thought he might certify and did ; the court made the rule absolute, and intimated that when a judge at the trial takes time to consider whether he will certify, he must do so publicly and distinctly. Petty v. Walker and others, MS. Exch. H. T. 1845. Certificate at Nisi Prius to deprive plaintiff of costs, when may he given.] In trespass, the plaintiff recovered less than 40s. damages, and the judge at the trial intimated his intention of certifying to deprive the plaintiff of costs, imder the 43 Ehz. c. 6, but after four days the plaintiff obtained the record from the associate, no certificate being indorsed on it, and signed judgment ; and the master, on pro- duction of the record, taxed the plaintiff his costs. The court con- firmed an order of the judge for producing the record before him, in order to indorse the certificate upon it, and for setting aside the judgment and taxation. Davis v. Cole, 6 Mee. & W. 624 ; 8 Dowl. 732. Certificate for costs on the higher scale, when may be given,] Where the verdict is under lOl., a certificate of the cause being fit to be tried before a superior court may be given at any time. Ivey v. Young, 5 Dowl. 450. Certificate for costs on writ of inquiry before the sheriff, signature to.] The sheriff to whom a writ of inquu-y is directed ought to certify in his own name, under the 3 & 4 Vic, c. 24, s. 2, in order to 66 CERTIFICATE. give the ])]aintifF full costs, where the damages are less than 40s., although the writ of inijuiry he not executed by himself in person, but by his deputy. Stroud v. Watts, 10 Jur., C. P. 497. The 43 Ehz. c. 6, s. 2, only empowers the judge who tries the cause to give the certificate under that act, to deprive the plaintiff of costs. And in case of executing a writ of inquiry, whether before a judge or a sheritt", the certificate cannot be granted. Clarid^e v. Smith, 4 Dowl. 583. Certificate at JSisi Prius in ejectment.^ By the stat. 11 Geo. 4, and 1 Will. 4, c. 70, s. 38, it is enacted, that in all cases of trials of eject- ment at Nisi Prius, when the verdict is given for the plaintiff, or the plaintiff is non-suited for the want of the defendant's appearance to confess lease, entry and ouster, the judge may certify his opinion on the back of the record, that a writ of possession ought to issue immediately, and upon such certificate a writ of possession may issue immediately, and the costs may be taxed and judgment signed and executed afterwards at the usual time as if no such writ had issued. If the lessor of the plaintiff is non-suited for want of confession of lease, entry and ouster, the judge will not grant a certificate under the statute without an afiidavit of the circumstances. Doe d. Wil- liamson V. Dawson, 4 Car. & P. 589. The judge has no discretion as to the time at which the lessor of the plaintiff shall have possession ; he must either certify for immediate possession, or let the case take its regular course. lb. But if the judge should think that some time ought to be allowed to the defendant, he will grant a certificate for immediate possession, the lessor of the plaintiff undertalainst both: — Held, that the latter was irregular ; and the husband having Ijeen discbarged under the Insolvent Debtors Act, quaere, if an audita querela would lie? Newton v. Rowe, 7 Man. & G. 329. LiuhUliy of executors to costs^ As a general rule, since the statute 3 & 4 Will. 4, c. 42, s. 31, executors, plaintiffs, are liable to costs where they do not succeed ; and it is incumbent on tbem to sbow some facts which may satisfy the court that they should be exempt in the parti- cular case. The fact that they were advised by counsel that a point of law, which M-as idlimately decided against them, was in their favour, or, at all events, that there was sufficient doubt as that the plaintiffs ought to take the opinion of a court of law upon it, is not sufficient. The con- duct of the defendant, after action brought, as that there was greater prolixity of pleading than necessary, &c., will not be considered by the court, in exercising their discretion, as to relieving executors Irom costs. Farley and others v. Briant and others, 6 Law J., Q. B. 87- Executors who are jilaintiffs will not be exempted from paying the costs of issues on which they have failed, unless the defendant has been guilty of deception or misrepresentation. It is not enough that the conduct of the defendant has been such as to induce the executors to go on. Blrhhead and another, executors, v. North, 1(3 Law J., Q. 13., 2S4. Costs of an action on a judgment — application f or. ^ The application under the statute 43 Geo. 3, c. 46, s. 4, for an order to entitle a plain- tiff to costs in an action on a judgment, must lie made either to_ the court or a judge at chambers, and not to a judge at Nisi Prius. Jones V, Lake, s'Car. & P. 395— Parke, B. Costs of an action not payable by a party not on the record.'] The Court of Exchequer will not interfere to make a person who is not a party to the record pay the costs of the action, though he is the real party interested in the event of it. liayward v. Gifford, 4 Mee. & \V. 194. Costs of action not payable by the j) arty interested in the suit, unless a party on the record.} The court will not interfere to make a person ■who is not a party to the record jjay the costs of an action (except in case of an ejectment) although it appear that he was the party really interested, and that he, in fact, carried on the action. Evans v. Rees — Rees, administratrix, v. Evans, 11 Law J., Q. B. 11. A rule to pay the costs ordered by a former rule, and on the master's allocatur, is unnecessary.} The defendants had obtained a rule for costs of the day, for not proceeding to trial, on which the master had indorsed his allocatur. The court discharged a subsequent rule nisi, calling on the plaintiff to pay the amount so taxed. Wriyht v. Bur' roughs and others, 2 Dowl. &; L. 94, U. B. COSTS. 85 Payment of costs by procheiii amy.'] To make absolute a rule for payment of costs against a prochein amy, under the 1 & 2 Vic. c. 110, s. 18, the same proceedings are requisite as in case of an attachment for non-payment of costs. An insufficient service is not cured by the prochein amy appearing and showing cause against the rule. Abrahams, by Jiis next friend, v. Taunton, 1 Uowl. & L. 319, Ex. Costs of issues on traverse of return to mandamus.'] The traverser of a return to a writ of mandamus is not entitled to the costs of issues taken on the return, and found for him at the trial, imless he suc- ceeds on the whole. The Queen on prosecution of Emery v. The Mayor, Sj-c. of Malmesbury, 11 Law J., Q. 13. 318. Costs of detention of a material witness where the trial is put off by the other side.] Where a trial has been postponed at the instance of a defendant, a plaintifi", who succeeds in the action, is entitled to the costs of detaining a material witness, a captain of a vessel, for 300 days ; and is not bound to examine him on interrogatories. Evans v. Watson and another, 15 Law J., C. P., 256. Costs of a remanet, the defendant havinc/ obtained a verdict on an amended plea.] To an action of trespass the defendants pleaded four [)leas, of which the third was bad. The cause stood for trial at the summer assizes, 1S44, and was made a remanet. Before the next assizes the defendant amended, by substituting another plea in the room of the third, and paid the costs of the amendment. The cause was tried at those assizes, when a verdict was returned for the defendants on the substituted plea, and for the plaintiti' on the three others: — Held, that the defendants were entitled to the general costs of the cause, but that the plaintiff was entitled to the costs of the remanet. Waller v. Elacklock and others, 15 Law J., Ex. 333. Costs of a special jury.] On a motion for the costs of a special jury, the court held, that neither party is entitled to the costs of a special jury, where one issue is found for the plaintiff and the other for the defendant. Morison v.Harmer, 5 Scott, 411. Costs — feme covert.] On a plea in bar, by a married woman, of her coverture, and a verdict in her favour thereupon, she is entitled to costs. Findley v. Varquharson, 15 Law J., C. P. 262. Costs on judgment nnn obstante veredicto.] On motion for judgment non obstante veredicto : — The court held, when immaterial issues are found for the defendant, but judgment afterwards entered for the plaintiff non obstante veredicto, neither was entitled to the costs of those issues. Goodburnc v. Bowman, 9 Bing. 66" ; 3 M. & So. 65 ; 2 Dowl. 206. Costs of opposiny a rule afterwards reversed on error.] A rule having been obtained for judgment on a plea, non obstante veredicto. 86 DECLARATION. afterwards reversed on error: — Held, that the defendant was entitled to tlie costs of opposing the rule. Evans v. Collins, 2 Dowl. & L. 9S9, C. P. Costs of issues on which the jury is discharged.'] Though the de- fendant succeeds on a plea which j^oes to the whole declaration, he is not entitled to the costs of any issues on which the jury have been discharged. Valance v. Evans, 1 C. & M. S5G ; 2 Law J., Ex. 272. DECLARATION. Commencement of declaration.'] Under rule 15, Rep;. Gen. M. T. 3 Will. 4, the declaration, in its commencement, should state whether it is delivered or filed by the plaintiff in person, or by his attorney ; a declaration omitting this is irregular and may be set aside, notwith- standing the notice of declaration served states it to have been served by an attorney. But held, that the proper course in such a case is to apply to a judge at chambers, and that the court will not give the defendant the costs of the application to the court, though the de- claration be delivered or filed in term. White v. Feltham, 16 Law J., C. P. 14. Declaration on hill of exchange — description of parties by initials.'] In a declaration on a bill of exchange, it is informal to describe any of the parties to the bill by the initials only of his Christian name, without showing that he is so described in the bill itself. Esdaile v. Maclean, 15 Mee. & W. 277. Declaration — description of plaintiff as public officer of a company.] A declaration, describing the plaintiff as " one of the present public officers of certain persons united in co-partnership for the purpose of carrying on the trade and business of banking in England, accord- ing to the statute" (7 Geo. 4, c. 46), is bad on special demurrer, for not stating that the co-partnership was carrying on the trade and business of bankers. Fletcher P. O.v. Crosbie and others, 11 Law J., Ex. 16. Entitling of declaration.] It is irregular to entitle a declaration of the court on the back of it only. Rippling v. Watts, 4 Dowl. 290. Time for declaring.] Whether an appearance is entered in term tim.e, or during the vacation, the plaintiff has the whole of the term next after to declare in. Therefore where an appearance was entered in Easter term, and judgment of non pros, was signed in Trinity term, the court set aside the judgment as irregular. Foster v. Prime, 10 Law J., Ex. 418 ; 8 Mee.- & W. 664. After appearance by the defendant, the plaintiff may declare with- out waiting the eight days. Morris v. Smith, 2 C. M. & 11. 314; 4 Dowl. IDS. It is not too late on the 25th to take advantage of an irregularity in declaring too soon, which has occurred on the 7th. Fish v. Palmer, 2 Dowl. 460. DECLARATION. 87 If a plaintiff's proceedings on a writ of summons are stayed by rule, he is bound to declare within a year after the expiration of that rule, or he will be out of court. Ujiite v. Humphrey, 3 Dovvl. 532. Declaration against one of two defendants.'] Where the writ of summons was against two, the declaration against one held regular. Caldwell V. Blalce, 2 C. M. & R. 249 ; 4 Law J., Ex. 200 ; and Bowles V. Bilton, 2 C. & J. 474. Where the affidavit of debt was against two and the declaration against one, it was held irregular ; and after a summons taken out for setting it aside, and referred to the court: — Held, that the plaintiff" could only withdraw it upon payment of costs. BeUotti v. Barella, 4 Dowl. 719, Ex. In tort, on bailable process against two, the plaintiff" may declare against one. Wilson v. Edwards, 3 B. & C. 734 ; 5 Dowl. 622. Where a plaintiff" sues out a capias against two and he arrests one only, he cannot declare against him alone. Carson v. DowUng, 4 Dowl. 297 ; and Woodcock v. Kilhy, 1 Mee. & W. 41. Declaring separately against two defendants.'] Where the original writ was against two, and the plaintiff" declares against them separately, the court would not set aside the proceedings. Durrani v. Scrocold, 3 Doug. 400. On a writ against two and only one defendant served, time to declare must be obtained the same as if one defendant only. Morton V. Grey, 9 B. & C. 544. Declaration in trespass — statement of abuttals.] In trespass qu. cl, fr., a description of a close by two abuttals only is a sufficient com- pliance with the rule of H. T, 4 Will. 4, Trespass, 1. ISlorth v. Ingamells, 9 Mee. & W. 249, Striking out of the declaration the sum paid into court in lieu of bail.] On a deposit in lieu of bail, under 7 & 8 Geo. 4, the defendant may apply that that sum be struck out of the declaration. Hubbard v. Wilkinson, 8 B. & C. 496. Service of declaration on defendant instead of his attorney irregular.] Where the defendant's attorney regularly entered an appearance for him in a cause, of which the plaintiff took no notice, but proceeded to enter an aj)pearance for the defendant, and notice of declaration was on the 17th of December personally served upon the defendant in the country, of v/hich the defendant's attorney had no notice or knowledge : — Held, an irregularity only, and not a nullity. Alsager v. Crisp, 10 Law J., Q. B. 130. Service of notice of declaration on one of two joint defendants.] Ser- vice of a notice of declaration on one of two joint defendants, who are partners, at the partnership place of Ijusiness, is not a sufficient ser- vice on the other. Qusere, whether the service would be sufficient, if it appeared that the subject-matter of the declaration related to a partnership debt. Moulston v. Wire and another, 1 Dowl & L. 527, C. P. 88 DECLARATION. Notice of declaration — rule to pleadS\ A rule to plead before de- claration is irregular, hut the irregularity is waived by the defendant taking out a sununons for time to plead. Pope v. Mann, 2 Mee. & AY. Sol. But a rule to plead may be entered before notice of declaration, if on the same day. Aitman v. Conway, 6 Dowl. 76 j 3 Mee. & W. 71. Demand of declaration.'] Only one demand of declaration is neces- sary; and therefore, if the plainlift' obtains furtlier time to declare, the defendant will be entiiled to sign a non pros, at the expiration of the last order for time. Teulonv. Gant,b Dowl. 153. Notice of declaration — defendant in cnstodij.~\ In an action, com- menced by writ of summons, a capias was taken out under 1 & 2 Vic. c. 110, s. 3, and the defendant arrested under it. The plaintiff sub- sequently entered an apj)earance for the defendant, and filed a declara- tion with the masters, and served the defendant with notice of the declaration : — Held, that this was regular, and that it was not neces- sary to serve the defendant with the copy of the declaration. Nealev. Snowdon, 15 Law J., C. P. 22 ; 3 Dowl. & L. 422 ; 2 C. B. 322. Setting aside notice of declaration.] The writ being on promises and the declaration in debt, the defendant obtained a rule to show cause why the notice of declaration should not be set aside ; on show- ing cause it was objected that the rule should have been to set aside the declaration : — Held, that the defendant could only move to correct what he knev/ to be wrong, that if he had taken the declaration out of the office he would have v/aived the irregularity. The rule was there- fore made absolute. Parker v. Perry, MS. Exch., E. T. 1846. In order to set aside a declaration filed, by reason of the non-ser- vice of process, the defendant must deny, not only the actual service, but that the process has come either to his hands or his knowledge. And for the purpose of satisfying the court, according to R. 33, H.T. 2 Will. 4, that he makes the application within a reasonable time, it is incumbent on him to state when he first knew of the notice of decla- ration. Cecily v. Bennison, 2 Law J., Ex. 3. Waiver of irregularity in notice of declaration by talcing same out of office.] Where the writ of summons was upon ]n-omises, and the no- tice of declaration in debt, the court refused to set aside the notice of declaration for irregularity, after the defendant had taken the declara- tion which was ujion promises out of the ofiice. Heywood v. Fayrer, 11 Law J., Q. B. 52. A variance between the description of the form of action stated in the notice of declaration, and in the declaration itself, is an irregula- rity, but it is waived by the defendant taking the declaration out of the office. Robins v. Richards, I Dowl. 378. And where a ])laintiff had declared conditionally after the time for the defendant's appearing had expired, and the defendant took the declaration out of the office : — Held, a waiver of the irregularity. Gilbert v. Kirhland, 1 Dowl. 153. DECLARATION. 89 An irregular declaration should be objected to before plea.l A bailable writ was sued out against three ; all were arrested, but one being an administratix obtained her discharge. Plaintiff then declared against the other two : — -Held, that after pleading, they could not set aside the declaration for irregularity. Bartrum v. Williams, 4 Bing. N. C. 301 ; 6 Dowl. 397. Notice of declaration.^ The notice of declaration must agree with the writ of summons. King v. Skijington, I Dowl. 6S6 ; 1 C. & M. 363. If the notice vary from the writ the motion may be to set aside the declaration. Robinson v. Evrington, 9 Dowl. 107, B. C. Notice of declaration where the defendant cannot be found."] If the defendant's residence be unknown, the rule for affixing the notice in the office is absolute in the first instance. Bridger v. Austin, 1 Dowl. 272 ; 1 M. & Sc. 520. But some attempt must have been made to find the defendant. Fry V. Rogers, 2 Dowl. 412, B. C. The mere fact of his being an itinerant performer, and address unknown, is no ground for sticking up the declaration in the office. Kemp V. Powell, S Moore, 273. ^Vhen the court allow notice of the declaration to be stuck up in the master's office, they will not, on the same rule, direct the service of all future notices and rules to be made in the same way. Luyton v. Mason, 6 Dowl. 275. Declaring against a defendant in custody on a writ of capias.] The rule of T. T. 3 Will. 4, R. 1, does not apply to the case of a defendant in custody by virtue of a writ of capias issued under 1 & 2 Vic. c. 110, s. 3. Ireland v. Berry, 1 Dowl. Ik L. 866, Q. B. ; and Turner v. Parker, 2 Dowl. & L. 444, Ex, Date of writ in declaration.] A declaration will not be set aside on the ground of the date of the writ being omitted at its commencement; the Rule H. T. 4 "Will. 4, is only applicable to the issue, not the decla- ration. Du Prey. Langridge, 2 Dowl. 584, B. C. Application to strike out counts in a declaration.] A declaration con- tained twenty-five counts. The first fifteen were on bills of exchange drawn in Paris. The next five, which related to the same bills, were special counts founded on the law of France ; and the last fi\e were on a special agreement to pay the bills in consideration of the plaintiff" procuring their discount. Application having been made to strike out the last set of counts : — Held, that they were not in apparent vio- lation of Reg. Gen. H. T. 4 Will. 4 r. 5. Gilbert v. Hales, 2 Dowl. & L. 227, Ex. Striking counts out of declaration.] Applications to strike out counts from the declaration should he made in the first instance at chambers. IVurd v. Gruystock, 4 Dowl. 717, Ex. Unless they involve a point of law or construction of a statute. 90 DECLARATION. when the motion should be matle to the court. Doe d. Overseers of Llandesilhv. Rue, 4 Dowl. 222, Kx. The defendant, on the 6th of November, obtained a judp;e's order for a week's time to plead; on the 12th he took out a summons to strike out one of two counts in the declaration, which, on the 14th, was dismissed with costs, and at the same time an order was made giving him three days' time to plead. On the 19th lie obtained a rule for strikinf^ out the first or second count: — Meld, that the apphcation •was too late, and that the rule must be discharged. Chapman v. King and another, IG Law J., Ex. 15. Amendment of declaration hj/ snhsiituiing one count for another.'] After issue joined, and a peremptory undertaking given, the declara- tion may be amended by the substitution of one count for another. Storr V. Watson, 2 Scott, 842, C. P. But the court will not allow an amendment to change the entire form of action, as trover, into an action of debt and detinue. Green v. Milt07i, 4 B. & A. 3G9 ; I N. & M. 073. Amendment of declaration hy adding a count.'] A new count may be added when its introduction is to raise the real question between the parties. Bale v. Gordon, 3 M. & Sc. 339, C. P. Where the plaintiffs contracted with the defendants to build a steam engine for pumping defendant's colliery, to be completed and fixed for 2,500Z. ; the engine was forwarded in parts, and fixed piecemeal at the colliery: — Held, that the price could not be recovered under a count " for the i)rice and value of an engine, and other goods sold and delivered," but that the proper form of count was for work, labour, and mai;erials, or for erecting and constructing an engine. Semble, that the judge at the trial might have amended the record, by insertin/;o/. issue, to try the existence of a custom in a manor, the jury had found for the i)hiintiff, subject to the opinion of the court, which also gave judgment in his favour, whereupon the defendant brought error in the Exchecjuer Ciiamber, on the ground that the customs stated in the declaration were not legal ; but — The court quashed the writ, on the ground that error did not lie on a feigned issue. Snook v. Mattocks, 5 Ad. & E. 239 ; and King v. Slmmonds and another, 14 Law J., Q. B. 248. In cases where execution is allowed to issue notwithstanding a writ of error, there must be satisfactory evidence that the writ of error is brought for delay; but inasmuch as a writ of error, brought on a nonsuit, leaves no colour for denying the imputation for delay, the courts have required that, on a rule for setting aside execution, there shall be an affidavit of some specific error; and the general assertion of the plaintifl''s attorney to that eifect is not sufficient. Evans v. Sivete, 2 Bing. 326. In an action for penalties, after verdict by consent for one penalty only, a writ of error will not lie. Apothecaries' Company v. Harrison, 4 P. & D. 292. No writ of error lies after an agreement to abide by a decision oa demurrer. Brown v. Lord Granville, 4 M. & Sc. 333 ; 2 Dowl. 796. It is no ground of error coram nobis, that the writs of venire facias and distringas juratores are returned with only one panel annexed to both. Green v. Smith, 5 Dowl. 174; and Archbold v. Smith, 1 Mee. 6 W. 740; 1 T. &G.949. It is no ground of error that the record states with respect to im- material issues, the jviry were discharged as to them, without showing consent of the parties. Powell v. Sonnett, 3 Bing. 381 ; 1 Dowl. 5G ; 1 Bli. N. S. 545. The neglect to assess damages for the plaintiff on the demurrer was not ground of error, where the first issue was found for the defend- ants. Gregory v. Duhe of Brunswick and another, 16 Law J., C. P. 34. Allowance of writ of error, effect of] A defendant cannot be charged in execution after notice of allowance of a writ of error. Marston v. Halls, 5 Dowl. 292 ; 2 Mee. & W, 60 ; and Maitland v. Mazeredo, 6 M. & S. 139. Notice of allowance of writ of erroi — title of cause.] Where the notice of allowance of a writ of error and assignment of errors were not entitled in the original cause of " H. S. & H. M. H. against R. F. G., Esq., commonly called the Hon. R. F. G. ;" but in " S. & another," against the Hon. R. F. G. :" — Held, on motion to set aside the allowance and assignment of errors for irregularity, that the variance was immaterial. Sparding and another v. Greville, 2 Dowl. & L. 721, Q. B. Bail in error may he dispensed with where the court directs the point to be raised.] Where a writ of error has been brought by a defendant upon a point raised under the direction of the court upon a special verdict, and with a bona fide view of obtaining the decision of the court upon a point of law, the court will stay execution, without re- quiring bail in error, such case being irrespective of the stat. 6 Geo EXECUTION. 125 4, c. 96. And quaere if under that statute the court may stay pro- ceedings without bail in all cases. Williams and another v. Downman, 13 Law J,, Q. B. 319. Writ of error— judgment of non pros. — entry of.'] If the plaintiff in error fail to assign errors in proper time, and the defendant in error sign judgment of non pros., the latter is entitled to enter the proceedings and judgment of non pros, upon the roll, in the court below. No entry of a remittitur is necessary. The rule applies to a judgment upon an indictment as well as to others. The Queen v. King and others, 14 Law J., Q. B. 86. Writ of error — reversal of judgment of imprisonment.'] Where a judgment of imprisonment was reversed upon error brought, the court of Queen's Bench pronounced a rule, ordering that the plaintiff in error should be discharged out of the custody of the keeper of the Queen's prison, where he had been kept by virtue of his commitment. Holt V. The Queen (in error), 14 Law J., Q. B. 98. On the reversal by a court of error of a judgment of imprisonment pronounced by the court of Queen's Bench, the court declined to make an order that the plaintiff in error should be discharged out of custody, as the application ought to be made to the court below. King and another v. The Queen {in error), 14 Law J., Q. B. 302. Error on a quo warranto — costs.] Yv'here upon error on a quo warranto the judgment in favour of the relator is affirmed, he is not entitled to costs in error. Rowley v. The Queen {in error), 14 Law J., Q. B. 240. Writ of error frivolous — execution allowed to issue.] The common count for interest is good ; and a writ of error assigning for causes that no promise to pay interest could be implied by law from the for- bearance of money at the defendant's request, was held to be frivolous, and execution was allowed to issue notwithstanding. Nordenstrom v. Pitt and others, 14 Law J., Ex. 150. Error books, delivery of] If a plaintiff in error does not deliver his paper-books in due time, and the defendant in error delivers them all, the latter is entitled to judgment. Best v. Prior, 2 Dowl. 189. EXECUTION. Execution cannot issue against a defendant discharged under Insolvent Debtors Act.] Where one of several defendants, having been arrested on a ca. sa. has been discharged under the Insolvent Debtors Act, his goods cannot be afterwards seized under a fi. fa. issued against him and the other defendants. Raynes v. Jones, 9 Mee. & W. 104. Execution may is.me against a public registered officer without a sci. fa.] A defendant having been sued as the public registered officer of a joint-stock banking company, and taken in execution on 126 EXECUTION. the judgment : — Held, that execution mifrht be issued without a scire facias, and that he was not entitled to his discharge, llarwood v. Law, P. O., 4-c., 10 Law J., Ex, 30. Execution, hoiv obtained against members of a company— the proceed- ings in the name of public ojicer.'] A local and personal act of par- liament enacted, that every judgment obtained against a nonriinal party might be executed against the person and estate of every indi- vidual shareholder, as if he had been by name a party to such pro- ceedings, provided that no such execution against any person being or having ceased to be a shareholder should be issued without leave of the court, and after notice of such motion to the person sought to be charged:— Held, that the proper mode of proceeding against a share- holder upon a judgment obtained against a nominal party was not by motion for leave to issue execution against such shareholder, but by scire facias. Clowes v. Brettell, 12 Law J., Ex. 8. Execution on judge's order, how obtained.'] The Imprisonment for Debt Act, 1 & 2 Vic. c. 110, s. 18, which gives the rules of court the effect of judgments in the superior courts of common law, does not enable a party, even with leave of the court, to sue out execution upon a judge's order, before making such order a rule of court. Wallis v. Sheffield, 9 Law J., Ex. 2. Execution against a bed-ridden debtor^ Where a defendant had been arrested on a ca. sa., but was too ill to be removed from his house without danger to his hfe, the court enlarged the time for returning the writ, but could not afford the sheriff any relief against the extra costs of keeping up the caption. Jones v. Robinson, 11 Mee. & W. 758; 12 Law J., Ex. 415. Execution against the dead body of defendant.'] Where, upon re- quest by the executors, a gaoler refused to deliver up for interment the body of a debtor in execution, who had died in the gaol, until the amount of certain detainers was paid, the court directed a mandamus to issue, peremptory in the first instance, commanding him to deliver it up. Ex parte the Lord of the Manor of Wakefield, 11 Law J., Q. B. 41. Execution on a judgment in the Common Pleas at Lancaster.'] To obtain execution in the courts at Westminster, on a judgment in the Common Pleas at Lancaster, the affidavit must show that the party has removed his goods out of that jurisdiction. Duckworhv. Fogg, 2 C. M. & R. 736 ; 4 Dowl, 3 for setting aside a judgment for irregu- larity, an objection that it was signed against good faith cannot be entertained (though the rule was moved on that ground), that not being an irregularity. Smith v. Clarke, 3 Law J., Ex.63; 2 Dowl. 218. Upon application to set aside a judgment signed against good faith, ex debito justitipe, — the court said, they could not impose the terms of not bringing any action without the defendant's consent. Cash v. Wells, 1 B. & Ad. 375. An application to set aside an interlocutory judgment for iiTegularity, after notice of inquiry, on the 4th November, was held too late on the 12th, Scott V. Cogger, 3 Dowl. 212. An affidavit to set aside a regular judgment, made by the Lon- don agent to the country attorney, and stating that the deponent believed, from the instructions received from the country attorney, that the defendant had a good defence to the action on the merits : — Held, sufficient. Schojield v. Huggins, 3 Dowl. 427. Setting aside judgment — affidavit must state that judgment is signed.^ An affidavit in support of a rule to set aside an interlocutory judgment must state in express terms that judgment has been signed ; and it was held not to be sufficient to state that a rule to compute had been served on the defendant. Classey v. Drayton, 6 Mee. & W. 17 ; 8 Dowl. 184. Setting aside judgment — costs?^ Upon a judgment set aside with, costs, as irregularly signed, a judge may order a stay of proceedings until the costs be paid. WenJiam v. Downes, 5 N. & M. 244 ; 3 Ad. & E. 450. A motion to set aside judgment for want of notice to tax must be made promptly. Roittledgesv. Giles, 2 C. & J. 163. An affidavit of merits to set aside a judgment must state a " good defence upon the merits." Bower v. Kemp, 1 C. & J. 287 ; 1 Tyrw. 260. Judgment on an attorney's taxed bill.'] The court will grant a rule* directing a party to pay the amount of his attorney's taxed bill, which, under 1 &2 Vic. c. 110, s. 18, will have the effect of a judgment, and give the attorney all remedies which by that statute are given to judg- ment creditors. Neale v. Postlethwaite, 10 Law J., Q. B. 134.— The rule was drawn up in the following form; — That the plaintiff should pay to G. S. the sum of 1238Z. 2s., and that the said G. S. should abandon his right to move for an attachment. A judge's order under 6 &c 7 Vic. c. 73, s. 43, ordering judgment to be entered up for the amount found by the master's allocatur to be * It appears that this is a rule to show cause, as in lUckards v. Patterson, 10 Law J., Ex. 272, it was lield that a judge's order for the payment of money under the above statute cannot be granted ex parte. JUDGMENT. 155 due on an attorney's bill of costs, has the same force as a rule of court for the payment of money, under the 1 & 2 Vic. c. 110, s. IS. No action, therefore, need be brought on such order, and if brought, the costs of the writ, declaration, and appearance will not be allowed. Griffiths V. Hughes, 16 Law J., Ex. IJ'G. Judgment roll, entering satisfaction ora.] The court will not allow satisfaction to be entered upon the judgment roll without a warrant of attorney from the plaintiff to acknowledge the same. The consent of the parties will not suffice. Wood v. Hard, 5 Law J., C. P. 312; 3 Bing. N. C. 45 ; 5 Dowl. 1S8 . In an action by five plaintiffs, the court refused to allow satisfac- tion to be entered on the judgment roll, on a warrant of attorney, signed by four of them only, although it was sworn that the other plaintiff had gone to settle in America, and that the damages were merely nominal. Davis v. Jones, 4 Scott, 202 ; 5 Dowl. 503. Charging a fund with the payment of money under a judgment.^ A. judge at chambers onl)', and not the court, has authority, under the Stat. 1 & 2 Vic. c. 110, s. 14, to make an order to charge a fund with the payment of money recovered by a judgment : if he makes an absolute order, the court has jurisdiction to set it aside if wrongly made ; but if he only makes an order nisi, the court has no authority to entertain the question, although the judge expresses his desire to refer it to the court. Broicn v. Bamford, 9 Mee. & W. 42. Action on a judgment, the debt being under 20Z.] "Where the defend- ant consented to pay the debt (under 201.) and costs by instalments, under a judge's order, and upon default made in any payment the plaintiff to be at liberty to sign judgment for the whole, which having done and the action brought on the judgment : — Held, that under 7 & 8 Vic. c. 96, the court had no power to interfere to deprive the plaintiff of the right of action. Hopkins v. Freeman, 13 Ivlee. & Vv^. 372 ; 2 Dowl. & L. 447. The court will not interfere under 7 & 8 Vic. c. 96, s. 57, to stay the proceedings in an action upon a judgment for debt and costs in a former action, although it appears that the sum recovered in the original action did not exceed 20l. Joseph v. Buxton, 2 Dowl. & L. 835, C. P. In an action on a judgment under 201. defendant may be taken in execution.'^ Since the 7 & 8 Vic. c. 96, a defendant may be taken in execution, in an action on the judgment recovered, though the debt recovered in the former suit was under 20l., and the second action is brought within a year. Mason v. Nicholls, 14 Mee. & W. 118. Judgment signed and costs taxed in vacation — motion in follov:ing term.^ On the 21st of November an application was made and a rule nisi obtained under the stat. 5 & 6 Vic. c. 122, for the plaintiff to refund the money paid under an execution except the amount of the debt recovered, and to pay the defendant's costs of the action and to enter a suggestion on the roll under the above statute. The judge 15G JUDGMENT — Js in case of nonsuit. at the trial had ijrantecl a certificate for speedy execution, on which judgment was signed, the costs taxed and execution issued : — Held, that the application was too late, that it ought to have been made within the first four days of term. Sinith v. Temperley, MS. Exch. II. T 1S47. Jud(jment, registration of, after discharge of defendant in execution.'] "Where a judgment debtor, taken in execution, was after a month's imprisonment released from prison by the judgment creditor, who, three years afterwards, registered pursuant to the 1 & 2 Vic. c. 110, and 2 & 3 Vic. c. 11, tlie court made absolute a rule to enter up satis- faction of the judgment, or to strike out the registration, the debtor paying the expenses of whichever alternative he adopted. Lambert v.Parnell, 15 Law J,, Q. B. 55. Judgment of a court at Westminster conclusive until reviewed by a court of error.'] The Court of Exchequer having delivered judg- ment in two cases relating to the habilities of provisional committee- men, the Court of Common Pleas granted a rule nisi which involved the same point (which the Court of Exchequer had decided) before their judgment was delivered : — Held, that the judgment of one court of Westminster Hall is binding upon the others, and is only to be reviewed by a court of error. Barker v. Stead, 16 Law J., C. P. 160. Judgment as in case of a no7isuit.] The following rule was pro- nounced by the Court of Exchequer after a conference with the Court of Common Pleas respecting the case of Higgins v. Stanley, 2 Man. & G. 336, and over-ruling that decision: — In town causes.] Issue joined in or in the vacation before any term, a motion for judgment as in case of a nonsuit may be made in the second term next after. Thus issue jollied in or in vacation before Hilary, motion may be made in Trinity term. In country causes.] Issue joined in or in vacation before an. issuable tenn — motion after the lapse of two assizes. Issue joined in or in vacation before a non-issuable term — motion after the lapse of one assize. Judgment as in case of nonsuit, time of moving for.] For the purpose of obtaining judgment as in case of a nonsuit, issue joined in vacation is to be considered as joined in the next ensuing term. Therefore, where issue was joined in a country cause in Michaelmas vacation, and no notice of trial given, a motion for judgment as in case of a nonsuit in Trinity term was held premature. Dore v. Hay- den, G Mee. & W. 626; 9 Law J., Ex. 323. Where issue is joined in a town cause in vacation, it is too early to apply for judgment as in case of a nonsuit in the next term but one after it is so joined. Heal v. Curtis, 2 Mee. & W. 76 ; 6 Law J., Ex. 23; 5 Dowl.'294. The lapse of eight years between the joining of the issue and the application for judgment as in case of a nonsuit, is no ground for discharging the rule. Curtis v. Tubram, 4 Dowl. 600; 1 Har. & W. 645 ; and Cromer \. Brown, 4 Dowl. 288. JUDGMENT — As in case of nonsuit. 157 If a plaintiff give notice of trial for the sitting in the term in which issue is joined, and do not enter the cause for trial accordingly, the defendant may move for judgment as in case of a nonsuit in the succeeding term. Hay v. Howell, 2 N. II. 397. Issue was joined in Easter term, and notice of trial given in the following vacation for the second sittings in the next Trinity term, but the notice was countermanded in the same term : — Held, that the defendant could not move for judgment as in case of a nonsuit m Trinity term. Phillips v. Eardley, 6 Scott, 602 ; Arn. 275 ; 2 Jur. 518, In a town cause, issue was joined and notice of trial given for the sittings in Michaelmas term. The cause was made a remanet, but the plaintiff did not proceed to trial. In Easter term a rule was made absolute for the costs of the day for not proceeding to trial, and sub- sequently a rule nisi was obtained for judgment as in case of a non- suit, which rule was discharged in Trinity term. In the same term the defendant obtained a similar rule nisi. No fresh notice of trial had been given : — Held, that the defendant was entitled to move for judgment as in case of a nonsuit. Smith v. Pole, 5 Mee, & W. 491 ; 7 Dowl. 792. Motion for judgment cannot be made in the same term that the default cccurs.~\ Issue was joined in Trinity term and an insufficient notice of trial given for the adjourned sittings after Trinity term ; the defen- dant refusing to accept the notice, a second notice was given for the first sitting in Michaelmas term; the plaintiff not proceeding to trial pursuant to this notice, the defendant in the same term moved for judgment as in case of a nonsuit : — Held, too soon. Clark v. Gold- smid, 6 Scott, S94 ; 7 Dowl. 151 ; 5 Bing. N. C. 120. Issue was joined in vacation in a country cause and in the following term notice was given to try before the sheriff within the same term: — Held, that after default by plaintiff, the defendant could not in the same term move for judgment as in case of a nonsuit. Linley v. Pouton, I Gale, 158 ; STyrw. 818. So semble in town causes, lb. Judgment as in case of a nonsuit cannot be moved for in the same term that default has been made although issue was joined two terms previously. Gripper or Smith v. Lord Templemore, 5 DowL 408 ; W. W. & D. 65; 1 Jur. 705. Judgment as in case of a nonsuit cannot be moved for in the same term for which notice of trial had been given. Preedy v, Macfarlane, 2 Dowl. 216 ; 4 Tyrw. 93 ; and Beybie v. Grenville, 3 Law J., Ex. 21. Where notice of trial was given for the second sitting in the term of which issue was joined and countermanded : — Held, that the de- fendant could not move for judgment as in case of a nonsuit in the same term. Isaac v. Goodman, 2 Dowl. 34. Issue joined in Trinity term and notice of trial given for the second sitting in Michaelmas term, but countermanded ; the defendant then moved for judgment as in case of a nonsuit, there being time in the term to give notice for the sittings after term: — Held, too soon. Marshal v. Forster, 2 Dowl. 22S ; 2 C. & M. 213. Judgment as in case of nonsuit may be moved after any default^ If a plaintiff gives notice of trial earlier than he is bound to do by the 158 JUDGMENT— ^/5 in case of nonsuit. practice of the court, and neglects to try the cause pursuant to such notice, he is guilty of a default, and the defendant, in the next term, may move for judgment as in case of a nonsuit, although the plaintitt has suhsequently given a second notice of trial for that term. May V. Husband, 9 Law J., Ex. 34 ; 5 Mee. & W. 493; 7 Dowl. 807 . Judgment may be moved aWiour/h notice and countermand in due timeJ\ If a plaintitF give notice of trial, he is liable to have judgment as in case of a nonsuit against him, although he duly countermand the notice, and would not have been in default if no notice had been given. Draine v. Russell, 10 Jur. 392, B. C— Coleridge, J. Countermanding a notice of trial does not interfere with the defen- dant's right to obtain judgment as in case of a nonsuit, although issue has been joined in the same term as that in which notice is given. Dennehey v. Rickiirdson, 4 Dowl. 13. Where a defendant is entitled to judgment as in case of a nonsuit, for not giving notice of trial, he is not deprived of his right by the plaintiff" giving notice before motion made. Smedley v. Christie, 2 Dowl. 152. Affidavit for motion for judgment. } An affidavit in support of a motion for judgment as in case of a nonsuit must state the venue. Withers v. Spooner, 5 Man. & G. 268 ; 6 Scott N. 11. 692. An affidavit in support of a motion, stating notice of trial given, is sufficient without alleging that the cause was at issue. Corbyn v. Hay' worth, 6 Dowl. 181 ; 3 Scott, 335, Affidavit need not state the venue if the time entitles defendant to judgment, whether town or country cause.'] An affidavit in support of a rule for judgment as in case of nonsuit need not state whether the cause is a town or a country cause, if it appear that issue were joined at such a period that in neither case the motion would be premature. Anslow V. Cooper, 2 Dowl. & L. 449. Rule for judgment as in case of nonsuit, with stay of proceedings."] In the Queen's Bench a rule for judgment as in case of a nonsuit cannot be dra^vn up with a stay of proceedings. Archer v. Smith, 9 Dowl. 99, B. C. In the Exchequer the rule may be with a stay of proceedings, pro- vided the usual two days' notice of motion be given. A rule for judgment, SfC, cannot include any other matter.] Where the rule is moved for after money has been paid into court under 7 & 8 Geo. 4, c. 71, there cannot be added that the money be taken out of court ; it must be the subject of a separate and subsequent apjilica- tion. Be Bedolliere v. Ryan, 7 Dowl. 615, B. C. ; and Vale v. Gau- ter, 9 Dowl. 106, B. C. The Rule 69 of 1 Reg. Gen. H. T. 2 Will. 4, s. 60, does not enable the court, where a rule for judgment as in case of a nonsuit for not proceeding to trial is made absolute, to grant the defendant the costs of the day, ondis])osing of that motion. Johnson v. Smith, 1 Dowl. 421. Issv£ must be perfectly joined before motion for judgment.] Where JUDGMENT — As in ease of nonsuit. 159 the plaintiff replies issuably, but does not add the similiter for the de- fendant, the latter is not entitled to judgment as in case of a nonsuit, unless he has added the similiter himself. Brook v. Lloyd, 1 Mee. & W.552. In answer to a rule for judgment as in case of a nonsuit, the plain- tiff's attorney swore that he had not added the similiter, nor had it been added to his knowledge or belief: — Held, a sufficient answer. Martin v. Martin, 2 Scott, 389 ; 2 Bing. N. S. 240. No issue is joined until the similiter be added. Gilmore v. Melton, 2 Dowl. 632, Ex. Nor if the rejoinder be wanted. Brown v. Kennedy, 2 Dowl. G39, Ex.; and Seabrook v. Cave, 2 Dowl. 691, Ex. If a similiter be entitled in a wrong court it is a nullity. Ray v. Good, 5 Dowl. 295, Ex. If the similiter be omitted in any one of the issues though added in the others, the defendant cannot move for judgment as in case of a nonsuit. V/riglit v. Oldfield, 8 Dowl. 899, B. C. There can be no rule for judgment as in case of a nonsuit, when the cause is not completely at issue, although it may have been so at a former period. Richards v. Middleton, 1 Man. & G. 53 ; 4 Jur. 340. . But the court has held that it is no longer necessary to enter the issue. Williams v. Edwards, 1 C. M. & R. 583. The Reg. Gen. H. T. 2 Will. 4, directs, that no entry of the issue shall be deemed necessary to entitle a defendant to move for judgment as in case of a nonsuit, or to take the cause doion to trial by proviso. "Where issue had only been joined in time as to one defendant, to enable him to move, but not duly as to other defendants, the rule was refused. Croivther v. Duke, 7 Dowl. 409 ; 7 Scott, 344. Where, in an action against four defendants, issue had been joined against three of them, and the fourth had been discharged under the Insolvent Debtors Act since the commencement of the action; the court discharged with costs a rule for judgment as in case of a non- suit, on the ground that no complete issue had been joined. Jackson V. Utting, 10 Mee. & W. 640 ; 2 Dowl. N. S. 543. Judgment as in case of nonsuit where money is deposited in lieu of bail.'] A defendant who has paid money into court in lieu of bail, under 7 & 8 Geo. 4, c. 71, s. 1, is entitled, after judgment as in case of nonsuit, to a rule absolute in the first instance, for having the money paid back to him. White v. Urwin, 9 Law J., Ex. 150 ; 8 Dowl. 202. Judgment as in case of nonsuit — excuse for not trying jmrsuant to notice.] It is a sufficient excuse, in showing cause against a rule for judgment as in case of nonsuit, for not proceeding to trial after notice of trial given, that it was necessary to countermand the notice of trial from difficulties in procuring the requisite evidence in support of the plaintiff's case. Draine v. Russell and Wife, 10 Jur. 392, Q.. B. ; and Doe d. Ringer v. Blois, 8 Dowl. 18, C. P. So, where after notice of trial given, the defendant applied to and offered terms of settling the action, which negotiation was jiending until after the time in which the cause could be tried, the rule for judgment as in case of nonsuit discharged with costs. Fosberry v. Butler, 2 Dowl. N. S. 390. IGO JUDGMENT — As in case ofiionsuit. If a defcinlant, by negotiation, prevents a plaintiff from proceeding to trial in due time after issue joined, he cannot obtain judgment as in case of a nonsuit, on account of such delay. Watkins v. Giles, 4 Dowl. 14. If a plaintiff does not proceed to trial, pursuant to notice, at the defendant's request, he is not entitled to judgment as in case of a nonsuit. Doe d. Stepphis v. Ford, 2 Dovvl, 419. The absence of a material witness a sufficient excuse for not pro- ceeding to trial according to notice. Mussell v. Faithful, 1 1 Jur. 270, B. C. And a rule was discharged, where the cause shown was a bona fide compromise between the parties, although in the absence of their attorneys. Page v. Douyhty, 4 Scott N. S. 523 ; and Ji7ifls v. Elias, 9 Dowl. 104, B. C. An affidavit of excuse, however slight, for not proceeding to trial, is sufficient to discharge a rule for judgment as in case of a nonsuit, in a qui tam as well as in any other action. Stone v. Farey, 1 East, 554. In an action against a provisional committeeman, it is no answer to a rule for judgment as in case of a nonsuit that the law in such cases is uncertain, and that the plaintiff will undertake to try the cause after the decision of the Exchequer Chamber upon a similar action there pending on a bill of exceptions. Edwards v. Ward and others, II Jur. 413. C. P. The non-production of funds by the plaintiff to his attorney is not a sufficient answer to a rule for judgment as in case of a nonsuit. Cleashy v. Poole, \ C. M. & R. 52i ; 4 Law J., Ex. 2 ; 5 Tyrw. 146. Where a defendant took out a summons for putting off" a trial at the assizes, so late before the commission day that the plaintiff thought he might be put to inconvenience in getting ready for trial, if the order was refused, and therefore countermanded: — Held, the defendant could not move for judgment as in case of a nonsuit, as upon a default of the plaintiff, liendill v. Bailey, 2 Dowl. 113. It is a sufficient answer to a motion for judgment as in case of a nonsuit, that the defendant has taken i)roceedings against the plaintiff in the Court of Chancery, and thereby rendered it needless to proceed to trial. Partridge v. Salter, 5 Dowl. 08. It is no answer to a rule for judgment as in case of a nonsuit, that the proceedings were commenced against the defendant, without the plaintiff's authority. Barber v. Willdns, 5 Dowl. 305. Motion for judgment, Sfc, pending a ride staying proceedings by one plaintiff as against another plaintiff /\ Amotion for judgment as in case of a nonsuit for not proceeding to trial was opposed on the ground that one of the plaintiffs, an official assignee, had obtained a rule staying the proceedings until the other plaintiff had given security for the costs of the assignee : — Held, that a rule obtained by one plaintiff against another, and to which the defendant was no party, could not deprive him of his right to move for judgment, and made the rule absolute unless the plaintiff would give a jieremptory under- taking. Laws and another, assignees v. Bott, MS. Exch., H. T. 1847. Pending a rule nisi for judgment as in case of nonsuit plaintiff JUDGMENT— ^5 in case of nonsuit. 1 6 1 cannot discontinue?!^ "Where a rule nisi had been obtained for judg- ment as in case of nonsuit, with a stay of proceedings, the court set aside a rule to discontinue subsequently obtained. JShirray v. Silver, 3 Dowl. & L. 26 ; 14 Law J., C. P. 236; 1 C. B. 638. Rule to discontinue no stay to motion for judgment as in case of a nonsuit.'] The plaintiff, being under a peremptory undertaking to go to trial on the 10th of January, obtained the usual order to discon- tinue, on payment of costs, and a consent in case of non-payment to the defendant's signing a non pros. The defendant protested against the taxation, which was appointed for the r2th, and on that day obtained a rule absolute for judgment as in case of a nonsuit : — Held, on motion to set aside this rule, that the rule to discontinue did not operate as a stay of proceedings, and that the defendant was not pre- cluded from obtaining judgment as in case of a nonsuit. Beeton v. Jupp, 15 Law J., Ex. 120. After a reference of a cause judgment cannot be moved for.] At Kisi Prius the plaintiff and defendant agreed to a reference and the record was withdrawn : — Held, that the defendant could not after- wards have judgment as in case of a nonsuit ; although by the default of the plaintiff the reference was delayed, and the agreement of re- ference never executed. Hansby v. Evans, 4 Mee. & W. 565 ; 7 Dowl. 198; 1 Horn, & H.420; 3 Jur. 44; andClurkv. Goldsmith, 5 Bing. 120. The defendant's remedy is to take down the cause for trial by proviso. lb. In ejectment, motion for judgment as in case of nonsuit.] The action of ejectment is within the stat. 14 Geo. 2, c. 17, enabling the defen- dants "in any action or suit at law" to obtain judgment as in case of a nonsuit. Doe d. Berger v. Docker, 6 Dowl. 478 ; 1 W. W. & H. 207; 2 Jur. 660. Judgment as in case of a nonsuit may be obtained in an ejectment, if issue has been joined, although through the default of the lessor of the plaintiff no consent has been actually drawn up, the tenant in possession having appeared and pleaded. Doe d. Williams v. Smith, 9 Dowl. 1011. Pending a demurrer, motion for judgment as in case of nonsuit.]. The Court of Common Pleas will not entertain a motion for judgment as in case of a nonsuit pending a demurrer. Butcher v. Kiernan, 2 Marsh, 364. Pending a demurrer the plaintiff is not bound to try the issue, and a rule for judgment as in case of a nonsuit will not be granted. Gordon V. Smith, 6 Bing. N. S. 273 ; 8 Scott, 560. This case was confirmed by the Court of Exchequer in Brewer v. Pierpoint and others, E. T. 1847. Pending demurrer, costs of the day.] Where demurrers to certain of the defendant's pleas are pending, and the plaintifl" gives notice of trial of the issues in fact, but does not proceed pursuant to his notice ; the defendant is entitled to the costs of the day, but not to judgment 1 62 JUDGMENT—^* in case of nonsuit. as in case of a nonsuit. Milton v. Griffiths, 1 Dowl. N. S. 769 ; 6 Jur. 463, B. C— Wightman, J. After judgment for the defendant on demurrers to certain pleas, there may be judgment as in case of nonsuit against the plaintiff for not proceeding to trial upon other general j)leas on which issues were ioined. Paxtun v. Popham, 10 East, 366 ; and Martin v. Stone, 6 Jur. '372, B. C. One of several defendants may move for judgment.^ One of several joint defendants may obtain a rule fur judgment as in case of a non- suit. Jones V. Gibson, 5 B. & C. 768 ; 8 D. & R. 592. Defendants separately appearing may severally move for judgment^ Where there are several defendants, appearing by separate attorneys, they may each move for judgment as in case of a nonsuit. Rhodes and another v. Thomas and others, 2 Dowl. & L. 553, Q. B. AVhere several defendants separately defend, any one of them may move for judgment as in case of nonsuit, notwithstanding one defen- dant had obtained a rule for the costs of the day, and another defen- dant a peremptory undertaking. Bridgeford v. Wiseman, MS., Exch. H.T. 1847. One of several defendants, with whom issue has been joined a sufficient time to enable him to apply for judgment as in case of a nonsuit, cannot obtain such judgment if the proper period has not elapsed since issue joined with the other defendants also. Crowther V. Brandon, 7 ScoU, 344 ; 8 Law J., C. P. 225. Judgment as in case of nonsuit where one defendant has suffered judg- ment by default.'\ Where in an action of assumpsit one of two defen- dants suffers judgment by default, the other defendant is still entitled to judgment as in case of a nonsuit, for not proceeding to trial. Stuart V. Rogers, 4 Mee. & W. 649. Judgment as in case of nonsuit — form of rule where several defen- dants^ Where there are several defendants in an action, a rule for judgment as in case of nonsuit, obtained by one of them, should be drawn up to show cause why the judgment should not be entered generally for the defendants. Sawyer v. Hodges and Thomas, 10 Law J., Ex. 470 ; 1 Dowl. N. S. 16, Ex. Motion by an insolvent defendant where the debt had been paid by another defendant.^ On a motion for judgment as in case of a nonsuit by one of several defendants, who it appeared was insolvent, and one of the other defendants had paid the debt which the plaintiff accepted in satisfaction: the court discharged the rule unless a stet processus be consented to. Culshaw v. Meltzer and others, MS., Exch. H. T. 1847. Defect of jury no ground for judgment as in case of nonsuit,'] Where a special jury cause is not tried, because neither party prays a tales, the defendant cannot have judgment as in case of a nonsuit. Phillips V. Dunce, 4 M, & R. 584 ; 9 B. & C. 769. JUDGMENT— ^5 in case of nonsuit. 163 Cause withdrawn to obtain a special jury, excuse against motion for judgment.^ It is a sufficient excuse in showing cause against a rule for judgment as in case of a nonsuit, for not proceeding to trial pursuant to notice, that the cause was withdrawn in order to obtain a special jury. Webber v. Roe, 3 Dowl. 589. The last default only noticed on motion for judgment as in case of nonsuit.'] On a motion for judgment as in case of a nonsuit, the court only takes notice of the last default. Jee v. Potter, 4 Dowl. 724. Judgment as in case of nonsuit cannot be moved for, where a new trial is granted.] Where the plaintiff tries his cause, and is nonsuited, and a new trial is granted, the defendant cannot move for judgment as in case of a nonsuit, though he may for costs for not proceeding to trial according to notice. Doe d. Giles v. Wynne, 1 Chit. 310. Where a plaintiif was nonsuited, and the nonsuit was afterwards set aside on payment of costs : — Held, that defendant could not after- wards move for judgment as in case of a nonsuit, but must take down the cause by proviso. Ashley v. Flaxman, 2 Dowl. 69/. If a plaintiff has once taken his cause down to trial, although a new trial may be granted, and he has given fresh notice, pursuant to which he does not proceed, the defendant is not entitled to judgment as in case of a nonsuit. Haivley v. Sherley, 5 Dowl. 393 ; 2 Har. & W. 331. Where insolvency is the reason for not proceeding to trial.] It is not enough to state in an affidavit, as a ground for discharging a rule for judgment as in case of a nonsuit, that the defendant is in insol- vent circumstances ; the affidavit must show that the plaintiff has not taken any further step in the cause, since he became acquainted with the defendant's insolvency. Badman v. Puqh, 1 Dowl, & L. 540. C. P. Rule for judgment as in case of nonsuit discharged after bankruptcy of plaintiff^ Where the plaintiff became bankrupt after issue joined, the court discharged the rule for judgment, and refused to direct a stet processus. Cross v. Robertson, 8 Scott N. S. 346. Insolvency of plaintiff no answer to motion for judgment as in case of nonsuit.] The insolvency of the plaintifJ', after the commencement of the action, is not an answer to a motion for judgment as in case of a nonsuit. Fordsham v. Rust, 4 Dowl. go. On discharging a rule for judgment as in case of a nonsuit, where the plaintifi' had become insolvent, and made an assignment of his property to trustees ; the court required not only a good peremptory undertaking, but also that security should be found for the costs. Nicholson v. Milne, I Har. & W. 211. And where the plaintiff's right of action became by his bankruptcy vested in his assignees, who refused to proceed in the suit ; the court refused to discharge the rule for judgment as in case of a nonsuit, unless security were given for costs. Taylor v, Montague, 2 Mee. & W. 315. 164 JUDGMENT— y/* in case of nonsuit. Poverty or insolvency of defendant is a reason for not proceeding to trial.'\ \Vliere the ])laintift" neglected, after issue joinefl, to go dowre to trial, from the extreme state of poverty of the defeniiant : — Held, on motion for judgment as in case of a nonsuit^ that the plaintiff was entitled to have the rule discharged, with costs, unless the defendant consented to enter a stet processus. Lettice v. Smvyer, 4 Jur. 74, Ex. The insolvency of the defendant having hap])ened since the action brought is a good cause against judgment as in case of a nonsuit. Bail/y v. Wilkinson, 2 Doug. 671. And a rule for judgment will b& discharged with costs unless a stet ])rocessus be accepted. Holland V. Henderson, 4 Mee. & W. 587 ; 1 Horn, & H. 4G9. AVhere it did not appear distinctly that the defendant's insolvency became known to the plaintiff since the commencement of the action : — The court refused ordering a stet processus, but granted the rule for a peremptory undertaking. Smith v. Davis, 9 Dowl. 50 ; 2 Scott N, S. 189. Where a defendant, who had filed his schedule under the Insolvent Act, and inserted the plaintiff's claim in it, afterwards applied for judgment as in case of a nonsuit against the plaintiff for not proceed- ing to trial ; the court discharged his rule with costs, though it did not appear whether or not the plaintiff knew of the insolvency before he commenced his action. Featherstone v. Bourne, 12 Law J., Q. B. 102. Where it was sworn in answer to a rule for judgment, as in case of a nonsuit, that the defendant was insolvent, but it did not appear that the plaintiff was unaware of the insolvency when be brought the action, the court directed the rule to be discharged, unless the defen- dant consented to a stet processus. Lemon v. Hopson, 6 Dowl. 795. Where the defendant became bankrupt after service of a rule for judgment as in case of nonsuit, on cause being shown the court discharged the rule with costs, unless the defendant would consent to a stet processus. Ferguson and another v. Bates, MS. Exch. T. T. 1847. But being informed by the neighbours and believing defendant to be insolvent is not sufficient. Symes v. Amor, 6 Mee. & W. 814 ; and Ila.nn v. Williamson, 7 Mee. & W. 145. Reference to issue on motion for judgment as in case of nonsuit.'] The issue cannot be looked at on a motion for judgment as in case of a nonsuit, unless it is referred to in the affidavit. Meredith v. Stacker, 4 Dowl. 499 ; Tyrw. & G. 76. Pending an order for particidars, judgment cannot be moved for.] The defendant cannot obtain judgment as in case of a nonsuit, after having served the plaintiff with an order for further and better par- ticulars, although the ])laintiff has taken no notice of such order. WiUiiev. Gipson, 7 Eaw J., C. P. 65. If plaintiff withdraws record after being a remanet by consent, de- fendant may move for judgment, Sfc.'] Where, after issue joined and notice of trial given for the sittings after Easter term, the cause was made a remanet by consent to the sittings after Trinity terra, when JUDGMENT— ^5 in case of nonsuit. 165 the plaintiflF withdrew the record : — Held, that the defendant was entitled to move for judgment as in case of a nonsuit. M'lntyre v. Somers, 14 Mee. & W. 102; 2 Dowl. & L. 896. But in the Queen's Bench it has been held, where a cause has been once taken down and made a remanet, the defendant cannot after- wards have judgment as in case of a nonsuit, although the plaintiff may have again given notice of trial and not proceeded. Gilbert v. Kirkland, 2 Dowl. 153, B. C. And in the Exchequer that judgment, as in case of a nonsuit, cannot be moved against a plaintiff who has once taken his cause down to trial, though it took place before the sheriff, under the Writ of Trial Act, and that the proper course is to get a judge's order for trying the cause by proviso. Day v. Day, 1 Mee. & W. 39 ; 4 Dowl. 740. A remanet from one sitting to another and default then made^ Where a cause in London was made a remanet, from the sittings after Easter to the sittings after Trinity term, and the plaintiff then made default: — Held, that the defendant was entitled to move for judgment as in case of a nonsuit. Ham v. Gray, 6 B. & C. 125 ; 9 D. & R. 125. Judgment in case of a nonstdt — remanet^ Where a town cause was made a remanet, from the sittings after Easter terra to the sittings after Trinity term, and the plaintiff then made default, a rule for judgment as in case of a nonsuit made in Michaelmas term was dis- charged on a peremptory' undertaking. Ladbroke and others v. Wil- liams, 15 Law J., Q. B. 46 ; 3 Dowl. & L. 368. Motion for judgment may be made although notice of trial has beeii given sooner than necessary.'] Where a plaintiff gives notice of trial sooner than he need, he is bound to proceed to trial pursuant to the •notice, or the defendant may move for judgment as in case of a nonsuit, in the following term. Howell v. Poivlett, 1 Dowl. 263 ; 1 M. & Sc. 355 ; S Bing. 272 ; and Ney v. Husband, 5 M. & W. 493. Motion for judgment as in case of nonsuit, on issue under the Tithe Commutation Act.] A defendant is entitled to judgment as in case of a nonsuit where more than two assizes have elapsed since issue joined on a feigned issue under the Tithe Commutation Act (6 & 7 Will. 4, c. 71, s. 46), and in such case the court will make an order for costs. Sandys, Clerk, v. The Mayor, Sf-c. of Beverley, 1 Dowl. & L. 641, Ex. Motion for judgment, SfC.in a feigned issue wider Tithe Commutation Act.] A feigned issue under the 6 & 7 Will. 4, c. 71 (Tithe Commuta- tion Act), is not within the same rules of practice as actions at law, and therefore when the plaintiff fails to proceed promptly to trial on such an issue, the defendant cannot obtain judgment as in case of a nonsuit; but must make the delay of the plaintiff the subject of a special application to the court. Wick v. Cotton, 1 Dowl. & L. 227, C)7. Nor can jurors summoned on the crown side serve as talesmen in civil issues. Rex v. Tippling, 1 C. & P. GG8. Special jurors not nppearinr/.'] If none of the special jurors appear the cause cannot be tried except by consent. AVhere the plaintiff' pro- posed to have the cause tried by a common jury, which was allowed by the judge, notwithstanding the defendant's protesting against it, and a verdict was found for the plaintiff; the court set aside the ver- dict, although it appeared that the defendant had made defence at the trial. Holt v. Meddowcroft, 4 M. & Sc. 467. If a cause go off for default of special jurors, no new jury can be struck, but the cause must be tried by the jury first appointed. Rex V. Perry, 5 T. R. 453 ; but see Mayor of Doncaster v. Coe, 3 Taun. 404. Rule for special jury, when to be obtained.^ The statutes regulating jiu'ies, as well as the practice of the court, require that no rule for a special jmy should be obtained before issue joined. Sayer v. Duci'oix, IG Law J., Q. B. 120. Service of rule for special jury .'] Where notice of trial had been given for the l6th, and on the 9th a rule for a special jury was ob- tained, but not served till the 13th ; but owing to the intervention of Easter no jury could have been struck before the 15th, if the rule had been served on the day on which it was obtained; the court re- fused to set aside the rule for the special jury. Gurney v. Gurney, 3 Dowl. & L. 734 ; 15 Law J., Q. B. 265. Jury process to the sheriff.'] The jury process must be sent to the sheriff, in the case of common jurors, ten days, and in the case of special jurors, three days at the least, before the commission day at the assizes. Charlton v. Burjiit, 1 M. & Sc. 450. Where the defendant obtained a rule for a special jury on the Ilth January, but did not serve it till the 15th, after notice of trial had been given ; the court, on motion, discharged the rule. Phelps v. Keily, 11 Law J., C. P. 99. Special jury on writ of inquiry before the sheriff.] Where it ap- pears that a common jury is improper to assess damages on a writ of inquiry before the sheriff, the court will direct the sherifi' to summon a jury, to be taken from the special jury book. Price v. Williams, 5 "Dowl. 160. Jury discharged by consent^ Discharging a jury by consent does not terminate the suit, but is the same in this respect as withdrawing a juror. And where the plaintiff, instead of going on with such suit, brought a new action for a cause admitted to be the same, the court JURY. 173- stayed the proceedings, but would not grant the defendant his costs of the latter suit. Everett v. Youells, 3 B. & Ad. 349 ; and Moscati V. Laicson, 4 Ad. & £. 331. Where judgment passed for the plaintiff to a demurrer to one plea, and the cause was taken down for trial upon another, and a juror was then v/ithdrawn by consent: — Held, that the plaintiff could not obtaia the costs of the demurrer. Burdoti v. Flower, 7 Dowl. 7S(3. A juror withdrawn by consent is a stay of further proceedings^ If at the trial of a cause, a juror be withdrawn under the advice of coun- sel, and a second action brought for the same cause, the court will stay the proceedings, notwithstanding the belief of the attorneys on each side that such withdrawal would not operate as a termination of the suit. Gibhs v. Ralph, 14 Mee. & W. 804 ; 15 Law J., Ex. G. Jury discharged by the judge — costs.~\ If a judge of his own authority discharges a jury from giving a verdict, on the ground of their not being able to agree, the party ultimately successful will not be entitled to the costs of the first attempt at trial. Seely v. Powers, 3 Dowl. 372. Special jury — banking company — striking out names of shareholders.'^ In a scire facias by the trustees of a banking company, against a share- holder of another banking company, founded on a warrant of attorney given to the trustees of the former by the public officer of the latter, the plaintiffs having obtained a rule for a special jury, and a rule having been granted calling on the plaintifis to show cause why they should not furnish to the defendant a list of the names and residences of the shareholders of the company, that they might not be nominated as jurymen, or why the rule for a special jury should not be dis- charged ; the court afterwards, on showing cause, discharged the de- fendant's rule, on the plaintiff's undertaking to strike out of the list of forty-eight nominated for the jury any one who happened to be shareholders in the company ; the sherift" to name any other persons, not shareholders, in lieu of those struck out. Esdalle and others v. Lund, 13 Law J,, Ex. 191. Special jury — tales prayed — challenge to the array.'] On the trial at Nisi Prius of an indictment for libel, on which only three special jurors appeared, the counsel for the prosecution prayed a tales, and the defendant challenged the array of the tales, on the ground that the sheriff v/as a subscriber to a society who were prosecutors, and on issue taken on this challenge, two triers were appointed by the court, who found in favour of the challenge, and the cause was made a re- manet. Rex v. Dolby, 1 Car. & K. 238. — Abbott, L. C. J. Special jury in an issue from Chancery — tales.'] Issues of devisavit vel non were directed by the master of the rolls, who ordered they should be tried by a special jury, but that none of the special jury should reside within twelve miles of G. (.the assize town.) There was no order as to the talesmen, and only eight special jurors appeared. The plaintiffs' counsel prayed a tales ; but the other party objected. The judge would not grant a tales, on the ground that there being no order of the master of the rolls as to the talesmen, and their residing 174 MOTIONS. within twelve miles of G. being no legal ground of challenge, the talesmen could not be asked on the voir dire as to their residences; and tliat, if any of tliein did reside within twelve miles of G., the master of the rolls would probably order a new trial on that ground. The trial, therefore, stood over till the next assizes. Wood v. Thomp- son, 1 Car. & M. 171. — Coleridge, J. Jury not allowed a law book cited.'] After the jury are charged, they can only state a question, and, receive the law from the court; the court therefore refused to {)ermit them to have a law treatise on the subject which had been cited. Burrows v. Unioin, 3 Car. & P. 310. Jury discharged in an undefended catise.'] The judge, in an unde- fended cause, where the plaintiff could not get on for want of a written agreement, discharged the jury, and allowed the record to be with- drawn, in order to save expense to the parties. Bonsor v. Element, 6 Car. & P. 230. MOTIONS. Notice of motion.'] Where a rule nisi is obtained for setting aside proceedings for irregularity, there can be no stay of proceedings, unless notice of the motion has been given to the opposite party. Fortesqtiev. Jones, 1 Dowl. 524. In the Queen's Bench notice is not necessary, the above case having been overruled by Stratton v. Regan, 2 Dowl. 585. But in the Exchequer a notice is necessary. Smith v. Wheeler, 3 Dowl. 431. And so in the Common Pleas. Rolfe v. Brown, 1 Hodges, 27. In the Exchequer a two days' notice is requisite. Hannah v. Wy- man, 3 Dowl. 673. Notice of motion — computation of time.] "Where notice of a motion for the discharge of a defendant out of custody under the 48 Geo. 3, c. 123, was served on the 3rd June, and it was stated that the motion would be made on the 12th, or so soon as counsel could be heard (the rule of court requiring ten days' notice), the court held that the notice was insufficient, although the application was not made until the 14th June. Burley v. Worrall, 1 Dowl. & L. 145, Q. B. When motion must be made to correct an irregularity.] Where a writ of fi. fa. was executed, and the amount of the levy paid under protest, on the 7th, a motion on the 20lh November to set aside the proceedings, on the ground that the defendant had never been served with process in the action, was held too late. Cook v. Peace, 9 Jur. 227, B. C— Patteson, J. Affidavits on motions.] If a rule is moved without affidavits, none can be used in answer to it. Atkins v. Mered'ith, 4 Dowl., G5S. Second application on same .subject as had been discharged with costs.] Where a rule for a mandamus, obtained by churchwardens, had been discharged, with costs, on the ground that their affidavits were imper- fect, and a subsequent rule was obtained by the same parties, on the MOTIONS. 175 same ground, on amended affidavits, the court refused to hear the second appUcation upon the merits, and discharged the second rule also with costs. The Queen v. Pickles and another, 12 Law J., Q. B. 40 ; and Levy v. Coyle, 12 Law J., Q. B., 295 ; 7 Jur. 724 ; and RoS' set V. Hartley, 5 N. & M. 415. Where a rule had been disposed of, the court refused to re-open the question on a suggestion of new facts, not brought before the court, but known before the rule was obtained. Bodfield v. Padmore, 5 Ad. & E. 7S5. The court refused to open a rule obtained before a single judge in the Bail Court in the term after the judgment pronounced, although with the sanction of the judge. Todd v. Jeffery, 2 N, & P. 443. A motion refused cannot be reneioed on amended materials?^ Where a rule for a mandamus was discharged upon a preliminary objection that there had been no demand upon and refusal by the party against whom the mandamus was ])rayed, to do that which the mandamus directed, the court refused a second rule for the mandamus, founded on affidavits, showing a demand and refusal subsequent to the dis- charge of the former rule. Ex parte 'Tliompson, 14 Law J., Q.. B. 176. The general rule of practice is, that a party failing in a motion by reason of a defect in his affidavit, shall not repeat his application on an amended affidavit, showing no ground of application which might not have been presented before. The only exceptions which the court will generally admit are, where the amendment consists merely in correctmg an error in the title or jurat of the affidavit. Mayor of Maidenhead v. Great Western Railway Company, 5 Q. B. Rep. 597. If a party through his own neglect makes an application to the court on insufficient materials, and his rule is on that ground dis- charged, he cannot afterwards be allowed to supply the deficiency, and to renew his application. Reg. v. Barton, 9 Dowl. 1021. Ride discharged on defect in affidavit — motion renewed^] Where a rule nisi for judgment, as in case of a nonsuit, was discharged in Hilary term, on the ground of a defect in the affidavit upon which it had been moved (for that it did not show whether the cause was a town or a country cause, and that it was not clear, therefore, that the plaintift' had been guilty of a default in not proceeding to trial), and a second rule obtained in the same term (in support of which an affida- vit was produced supplying this defect) was also discharged upon the ground that it was a mere renewal of the former application upon amended materials, the court nevertheless held that the defendant was entitled to renew his motion in the following Easter term. Withers V, Spooner, 1 Dowl. & L. 17 C. P. A mandamus was quashed on the ground that it was not drawn up in conformity with the rules under which it issued. A rule was after- wards obtained for amending the first-mentioned rules, so as to make them agree with the mandamus. This rule was discharged : — Held, that the prosecutor ought to be allowed to make a second application on the same affidavits for a rule for a mandamus in the terms of the first mandamus, though the object of such application was the same as that which was sought by the rule for amending the rules. The 1 76 MOTIONS. Queen v. The East Lancashire Railway Company, IG Law J., Q. B, 127. Second application to court on amended affidavits.'] The rule now- acted upon in the Court of Queen's Jiench appears to be, that, where- a party fails in an application from a defect in his allidavits, he cannot have a fresh rule on amended affidavits, except only where the defect is merely in the jurat or title of the atlidavit. Key. v. Maiichester and Leeds Railway Company, 8 Ad. & E. 413; Joynes v. CoUinson, 13 Mee. & W. 5G0, note. Same plaintiff in two actions may move on same affidavit inhoth causes.'} A motion on behalf of the same plaintiff, in two different actions, upon the same jjround of application may be made upon one affidavit, entitled in both actions. Pitt v. Evans, 2 Dowh 220, Ex. Motion to amend the terms of a rule.'] Mistakes in the terms of rules may be amended on motion to o])en them, made v/ithin the same term, or perhaps that following ; hut where more time has elapsed, the affidavits which were used on the occasion of making the first rule absolute cannot be referred to in order to open it, unless the new motion is made, and the new rule drawn up on reading them.. Lord v. Hope, 5 Tyrw. 4S7. The date of the judgment of the court on a motion relates to the time of the aryinnent.] The judgment of the court relates to the time of hear- ing the argument, and may be entered nunc pro tunc, against one of several defendants, as well as against a sole defendant, when death takes ])lace after verdict, and bel'ore judgment. Harrison and others V. Heathorn and others, 1 Dowl. & L. 529, C P. Application to re-hear a rule.] The court refused to re-hear a rule upon a suggestion that it had been decided upon an erroneous report of the masters on a point of practice. Gingellv. Bean, 1 M. & G. 555 ; 1 Scott, N. R. 390. Application to the court after an application to a judge at chambers.] Semble, that where an apjjlication has been made to a judge at cham- bers and refused, it is not necessary, in a svibsequent application to the court, to bring before the court the proceedings at chambers. Hallettv. Creswell, 1 B. C. Rep. 1 ; 10 Jur. 2G6. When ])arties who are before a judge at chambers, upon a sum- mons, are referred to the court, they are bound to go promptly. But- terworthv. Williams, 1 B. C. Rep. IGS — Wightman, J. On the 10th March a summons was taken out to amend an entry in a judgment-roll, and was heard on the 12th, when the question was adjourned ; no motion however was made until the 5th May (the 21st day of Easier term) : — Held, too late. lb. A case heard arid dismissed at chambers may be moved in court.] A party whose case has been heard at chambers and dismissed, may apply to the court to hear it, although no order has been made by the judge ; and he is not precluded from using additional affidavits in sup- NEW TRIALS. 177 port of his application. Pike v. Davis, 6 Mee, & W. 546 ; 9 Law J., Ex. 322 ; 8 Dowl. 3S7. But where an application had been made in term to a judge at chambers to set aside an appearance entered sec. stat., and all subse- quent proceedings, and refused by the judge, the court refused a rule on a motion, with additional affidavits, the defendant having elected to go to chambers in the first instance when he might have come to the court. Florence v. Colverd, MS. Exch. H. T. 1S47. Motion to increase damar/es, when to be made.'\ Held, that a motion to increase the damages, found by the jury upon a trial in tlie vaca- tion, made after the first four days of term, is too late. Masters v. Farris, 1 C. B. 715. NEW TRL\LS. Motion for new trial — within ivhat time.l The cause was tried the day before tlie last day of Easter term — the distringas returnable on. the last day of that term. On the second day of the next Trinity term a motion was made for a rule nisi for a new trial, and the court held that the apjilication was too late and refused the rule. Hall or Cole V. Davis, MS. Exch. T. T. 1844. A rule for a new trial may be moved for within four days after the return day of the distringas juratorum, altliough more than four days may have elapsed since the trial. Ames v. Letiice, 6 Mee. & W. 2lG ; 9 Law J., Ex. 312. A motion for a new trial must be made within four days inclusive of the return day of the distringas. Chapman v. Eley, 11 Law J., C. P. 320. Motion for new trial on an objection to the notice of trial.'] The ground of an a])plication for a new trial was, that the defendant's residence was and for some time had been in Ireland, and that he ought to have had fourteen instead of eight days' notice of trial. The court refused the rule ; it not appearing that, whilst resident in Lon- don, he was not permanently resident there. Leneham v. Gould, 4 Dowl. 371, Ex. Motion for a new trial on the j^oint of the right to begin.] On a motion for a new trial, the court refused the new trial on the ground that the judge had erroneously decided on the trial as to tlie right to begin. Bird v. Higginson, 2 Ad. & E. IGO. In the Exchequer, on a similar motion, where the judge at Nisi Prius had decided clearly and manifestly wrong, the court granted a new trial. Huchmun v.Fernie, 3 Mee. & W. 505. Semble, the court will not grant a new trial merely on the ground that a judge's ruling as to the right to begin is erroneous, unless clear and manifest wrong has been done thereby. Booth v. Millres, 15 Law J., Ex. 354 ; and Edwards v. Mathews, 1 1 Jur. 398, Ex. Where injury has resulted from an erroneous decision of a judge at Nisi Prius, relative to the order of beginning, the court will, in it3 I 3 178 NEW TRIALS. discretion, grant a new trial. Geach v. Ingall, 14 Mee. & W. 95 ; 9 Jur. GDI. On motion for a new trial, the judge' s report cannot be contradicted!^ Affidavits are not receivable to show that a judge is mistaken in his report. Rex v. Grant, 5 B. & Ad. 1081 ; 3 N. & M. 106. And where the notes on the briefs of the counsel on both sides differed from the judge's report as to the summing up, the Court of Exchequer held that they were bound by the judge's report, and refused to make the rule absolute for a new trial. Jones v. Jones, MS. Exch. H. T. 1847. Motion for new trial, — challenge over-ruled at Nisi Prius.'\ In order to enable a party to avail himself of a challenge to the array or the polls, as a matter of right, the challenge and ground for it should be put upon the record at the trial. Although in some cases the court will grant a new trial where a valid challenge has been made and over-ruled at Nisi Prius, and it has been omitted to be put upon the record, the court will not grant it where the party was aware of the cause of the challenge to the array before the trial, and might, by moving to change the venue, or otherwise, have obviated the objection. The Mayor, 4*c. of Carmarthen v. Evans, 11 Law J., Ex. 394. Motion for a new trial, plaintiff having amended his particulars.^ When the plaintiff, by amending his particulars, makes them incon- sistent with the declaration and insensible, the court will not set aside a verdict obtained by him, unless the defendant was misled by the alteration, or had no opportunity of amending his pleadings. Simons v. Wood, 13 Law J., Q. B. 49. New trial moved for in the wrong court by mistahe.'\ A rule for a new trial having been moved for by mistake, in a wrong court, and the mistake not having been discovered till after the first four days of the term had elapsed, the Court of Exchequer, under the circum- stances, allowed the motion to stand good as of that court. Figgott V. Kemp, 2 Dowl. 20. Reserved list of motions for rules for new trials."] Where, from the pressure of business, a motion cannot be heard within the first four days of term, and the case is inserted in the list of enlarged motions, notice of that fact should be given to the opposite party, or he will be entitled to the costs of proceeding to sign judgment. Emblin v. Dartnell, 1 Dowl. & L. 1010 ; 13 Law J., Ex. 253 ; 12 Mee. & W. S30. Notice must be given after a case is inserted in the reserved list of motions for nctc trials.] A cause having been put into the reserved list of motions for new trials to be moved after the fourth day of term, notice must be given to the opposite party after the cause has been inserted in the list, — it is not sufficient that the jiarty has become acquainted with the fact by any other means. Lloyd v. BerkovitZy MS. Exch. M.T. 184G. Affidavits used on motion for new trial — wlien to be sworn^ The NEW TRIALS. 1/9 court refused to allow an affidavit to be used on motion for a new trial, where sworn after the four days allowed for moving for the new trial, although ihe motion not made imtil after that time. Williams V. Mortimer, 11 Mee. & W. 104 ; 12 Law J., Ex. 1G4. Affidavits used on motion for new trial, when to be filed.'] The court will not allow additional affidavits to be filed in support of a motion for a new trial, after the expiration of the time for moving. Gibbs v. Tunaley, 1 M. G. & S. 640. The new trial paper may he called on the last day ofterm.l On the last day of Easter term, 1846, the court having gone through the bar, and the motions being exhausted, the first case in the new trial paper was called on at about two o'clock. Lambert v. Heath, 15 Law J., Ex. 296; and Bold v. Wainwriyht, 10 Jur. 396. Motion for new trial on the ground of an amendment at Nisi P7nus.^ Where an amendment has been made at the trial, no new trial will be granted on that ground. Ward v. Pearson, 5 Mee. & W. 16 ; 7 Dowl. 382. Nor where the judge at Nisi Prius refuses to grant the application. Doe d. Poole v. Errinyton, 1 Ad. & E. 730 ; 3 N. & M. 646; and Berney v. Green, 12 Moore, 174. Motion for new trial — no notice of trial given."] Unless under very special circumstances, a defendant who appears at the trial of the cause, and takes his chance of success there, will not be allowed after- wards to avail himself of the objection, that he has received no notice of trial. Fiyg v. Wedderburne, 11 Law J., Q. B. 45. A cause tried by mistake as undefended no ground for new trial.] On a motion for a new trial, it appeared that the attorney had permitted the cause through inattention to be called on, and tried as an imde- fended cause. The court refused to grant a new trial, although it was sworn that there was a good defence upon the merits. Breach v. Cas- terton, 7 Bing. 224 ; 4 M. & P. 807. A cause which was fifteenth on the list for the day, was taken on as an undefended cause, at the sitting of the court, and in the absence of the defendant : — Held, that there was no ground for a new trial, and that the judge may take the causes in the list in such order as he pleases. Banks v. Newton, 16 Law J., Q.B. 142; 11 Jur. 208. Rule nisi for a new trial on bringing money into court.] Where a rule nisi for a new trial is granted on the terms of bringing the amount of the verdict into court, the money must be brought in before the rule nisi is drawn up. Clare v. Fiestel, 2 Dowl. Gl7, Ex. New trial through default of jury — costs of first trial.] A ]}laintifr who succeeds on a second trial is entitled to the costs of the first trial, in which no verdict could be given Ijy reason of the absconding of one of the jurors, although the plaintiil:" refused to consent to a verdict l)y the other eleven. Harrison v. Bennett, 2 Law J., Ex. 33 ; 1 C. & M. 203. 180 NEW TRIALS. Rule 7iisi for a new trial, verdict under 20l. — ne^v evidence!] The rule, that the court will not jriant a rule for a new trial on the ground that the verdict was against evidence, where the sum sought to be recovered is under 20/., except in cases of fraud, extends to cases where the motion is made on the ground of the discovery of new evidence. Branson v. Didshury, 10 Law J., Q. B. 10. Rule nisi for new trial — affidavits of witnesses on motion for-l Upon an application to set aside the verdict, on the ground of exces- sive damages, this court refused to hear affidavits made by the defen- dant's witnesses, examined at the trial, either to exj)lain or add to the evidence then given. Fhillips v. Hatfield, 10 Law J., Ex. 33. New trial — miscarriage on part of the associate in taking the ver- dict.'] Upon the trial of a cause, in which three issues were raised, each going to the whole cause of action, it was agreed on both sides that the verdict should be taken by the associate in the absence of the judge, who, before he retired from the court, directed the asso- ciate to take the verdict upon each of the issues se])arately. Upon the return of the jury, the associate asked them whether they found for the plaintiff or the defendant ; and the foreman answered " for the plaintiff." The defendant's counsel requested the associate to put the questions left to the jury by the judge, to which the ])laintiff's counsel objected ; whereupon the associate refused to put the questions, and ultimately a general verdict was entered for the plaintiff : — Held, that the neglect in not taking the verdict upon each of the issues was a miscarriage on the part of the officer of the court in taking the ver- dict ; and the court, therefore, made a rule absolute for a new trial, without costs on either side. Bentley v. Fleming, 3 Dowl. & L. 23 ;• 1 M. G. & S. 479. Negligence of attorney no gronnd for new trial.] The court refused a new trial, merely on an affidavit that the defendant had been kept by his attorney in ignorance of the action ; and that he had a good defence on the merits, but that the verdict had gone against him through the negligence of his attorney, the remedy being against the- latter. Moody v. Dick, 4 N. & M. 11. New trial cannot be granted for one of several defendants.] The court cannot on motion grant a new trial as to one defendant, where a verdict has been found against him, and for the other defendants. Doe d. Dudgeon and another v. Martin and others, 2 Dowl. & L. 67S, Ex. Motion for new trial where verdict for one defendant and against others.] Where a verdict has been found for one of several defen- dants, and against the others, and the latter apply to set it aside; the rule should call on the successful defendant, as well as the plaintiff, to show cause. Belcher v. Mugney and others, 3 Dowl. & L. 70. Costs of rule for new trial if not paid — motion thereon.] A rule to discharge a rule for a new trial, on the ground that the party has neglected to pay costs, is a rule nisi which makes itself absolute. NEW TRIALS. 181 unless cause he shown within a limited time. Phillips v. Warren, 14 Mee. & W. 730 ; 3 Dowl. & L. 301 ; 15 Law J., Ex. 3. The Court of Queen's Bench will grant a rule absolute in the first instance. Champion v. Griffiths, 1 Dowl. N. S. 319. Costs of new trial — costs in the cause.'] A new trial had been granted without mention of costs, and shortly before the cause was to be again tried, an order was made to stay further proceedings on pay- ment of 20^. damages, and all such costs already incurred as plaintiff would have been entitled to if he had gone to a second trial and obtained a verdict. The master allowed, on taxation, the costs of the briefs delivered, and the fees paid to counsel on the first trial, and the costs of the subpoenas, and of the copies and service thereof upon the witnesses at the first trial. No briefs had been delivered or witnesses subpoenaed for the second trial at the time the order was made: — Held, that the fees to counsel and the costs of serving the subpoenas were wrongly allowed, as those costs alone which would be available at the second trial ovight to have been allowed as costs in the cause. Lambert v. Li/ddon, 16 Law J., Q. B. 34. Rule for a neiv trial — costs to abide the event.'] Upon granting a new trial, costs to abide the event, the Court of Exchequer said, they would follow the rule in the King's Bench, that neither party have the costs of the first trial, unless the verdicts are for the same party. Canham v. lish, 2 C. & J. 126 ; 2 Tyrw. 155 ; and Fasley v. Mellard, 1 Tyrw. 160. Costs of ride for a neio trial.] Where the plaintiff had obtained a verdict, and a rule was made absolute for a new trial, with costs to abide the event, but no mention was made of the costs of the rule, and the defendant succeeded on the new trial : — Held, that neither party was entitled to the costs of the rule, the term " costs to abide the event" meaning, in the event of the second verdict being the same as the first. Eccles v. Harper, 14 jNIee. & W. 248 ; 14 Law J., Ex. 264. A new trial (jranted on payment of costs — consequence of non-pay- ment.] A rule having been made absolute for a new trial on payment of costs by the plaintitl', the costs were taxed and demanded on the 4th of May. On the Sth of May, the defendant obtained a rule to discharge the rule for a new trial, unless the costs were paid before the fourth day of the ensuing term. The plainliti" having jiaid the costs on the 21st of May, the court discharged the rule, but ordered the plaintiff to pay the costs of the application. Solly v. Lane/ford, 13 Mee. & W. 151 ; 2 Dowl. & L. 405, Ex. Costs of new trial, on reference, after new trial grunted.] After a verdict for the plaintifl', the defendant obtained a rule for a new trial, ■which was made absolute, no mention being made of costs. The parties then agreed to a reference, and the order of reference stipulated that the costs were to abide the event. The arbitrator having decided the cause in favour of the defendant : — Held, that the defendant was not; entitled to the costs of the trial. Thomas v. Hawhes, 9 Mee. & Vv'. 53, 182 NEW TRIALS. Rule for a new trial — costs of former trial.'] Where a rule for a new trial is silent as to costs, the plaintiff is not entitled to the costs of the first trial. Peacock v. Harris, 1 N. & P. 240 Where nothing is said as to costs upon a new trial granted, the court cannot give them to the successful party. Newberry v. Colvin, 2 Dowl. 415, B. C. Where a venire de novo is awarded, the successful party is not entitled to the costs of the first trial. Edwards v. Brown, 1 C. & J. 354; 1 Tyrw. 281. Rule for new trial — costs of former trial to abide the event ^ Where, after a verdict for the plaintiff, a new trial was directed upon the terms of the costs of the former trial to abide the event, the defendant having obtained the verdict in the second trial : — Held, that he was entitled only to the costs of the new trial. Sherlock v. Bernard, 8 Bing. 21 ; 6 M. & P. 58. Costs in the cause, on new trial granted.'] Fees of counsel on a first trial, consultation fees, and the service of subpoenas for the first trial, are not costs in the cause, on the principle that they would not be available for a second trial. Lampert v. Lyddon, 11 Jur. 44, Q. B. New trial — taxation of costs.] Where there have been two trials, and the successful party is entitled to the costs of the second trial only, the master, in taxing costs, may allow fees on the second trial witli reference to those given on the first. Wilkinson v. Malin, 2 Dowl. C5, Ex. New trial, jury not agreeing, costs.] Where the jury not agreeing, are discharged by the judge of his own authority, the party ultimately successful is not entitled to the costs of the first attempt at trial. Waite V. Spurgin, 4 Dowl. 575, B. C. Nor where a juror is withdrawn on the first trial. Thomas v. Lewis, 5 Dowl. 395. New trial on payment of costs — when to be paid.] In the Court of Queen's Bench, if a trial has been granted on payment of costs, the court will not point out in the rule a ])articular day on which the costs must be paid. Bland v. Warren, G Dowl. 21, B. C. Rule for new trial abandoned, costs.] The defendant had obtained a rule for a new trial, without mention of costs, and which was drawn up ; it was afterwards abandoned. The court directed the plaintiff to have the postea delivered to him, and to have the costs of the trial ; but refused the costs of the rule, and application for the postea and costs to plaintiff. De Rutsen v. Lloyd, 5 Ad. & E. 463 ; 2 N. & P. 213. Neil) trial on payment of costs — taxation of costs.] Upon a rule obtained for a new trial on payment of costs, the court held, that the costs of admitting documents used on the first trial were costs in the cause, there being no necessity for fresh admissions ; but that the costs of preparing briefs and of full fees should be allowed as costs NEW TRIALS. 183 of the trial, regard being had by the master to necessary amendments. Lord V. Wardle, 6 DowL 174 ; 3 Scott, 398. Remanet fees were held to be costs taxable, and to be included by the master. Robinson v. Day, 2 N. & M. 6/0. This case is over-ruled by the following. A new trial granted on payment of costs does not include the costs of a remanet.'] Where a town cause is made a remanet, the costs so occasioned are costs in the cause, and need not be paid by a party who obtains a rule for a new trial on payment of costs. Bentley v. Carver, 15 Law J., C. P. 173. Rule for a new trial after a nonsuit — plaintiff discontinues — costs of trial.'] In trespass for mesne profits, the plaintiff was nonsuited, and obtained a rule for a new trial, which said nothing as to costs. He served this rule. Another action was afterwards commenced against the defendant for the same mesne profits, in the name of John Doe ; upon which the defendant obtained a rvile, which was made absolute, to stay the proceedings in this action, till the former should be deter- mined, or discontinued. The plaintifif's attorney gave notice of trial, but afterwards countermanded it, in the action in which the new trial was granted ; and the defendant's attorney also gave notice of trial by proviso, which was also countermanded. After the assizes, the plaintiff obtained a rule to discontinue, and served an appointment for tax- ation of costs : — Held, that the defendant was not entitled to the costs of the trial. Joliffe v. Mundy, 4 Mee. & W. 502 ; 8 Law J., Ex. 100. Rule for a new trial abandoned — plaintiff discontinued — costs of trial.] Where after verdict for the plaintifif', a new trial was granted, but no mention of costs, the plaintiff' discontinued : — Held, the defen- dant was not entitled to costs. Gray v. Cox, 5 B. & C, 45S ; and Sweeting v. Halse, 9 B. & C. 369. Statements of jurors not admissible on motion for new trial.] Though the affidavits of individual jurors are not, on grounds of public policy, receivable to impugn their own verdict, yet the affida- vits of persons within hearing are admissible to give the court that information which cannot be derived from a party implicated. Harvey V. Hewitt, 8 Dowl. 598. Affidavit of juror where receivable.] Where personal misconduct has been imjjuted to jurors by affidavits, upon which a rule nisi for a new trial has been obtained, the affidavits of the jurors themselves are admissible, in showing cause to rebut that imputation. Standwick v. Hopkins, 14 Law J., Q. B. IG ; 2 Dowl. & L. 502. And affidavits of jurors of what occurred in open court, on the ^in, and prove that the defendant had not built according- to the si)eciiication. Smith v. Davies, 7 C. & P. 307. — Alderson, 15. Trover by the assignees of a bankrupt against the sheriff for goods. Plea, that 11. J. sued out a writ of fi. fa. against ttie bankrupt, and that it was delivered to the sherifl" before the bankruj)tcy, and that the sheriff seized and sold the goods, and that no docket had been struck against the bankrupt, neither had the sheriff any notice of any act of bankruptcy. Replication, that the judgment was obtained against the bankrupt by cognovit, in an action commenced by collusion, and that the fiat issued within two months after the seizure. Rejoinder, that the action was commenced adversely : — Held, that on these plead- ings the plaintiff must begin, Scott v, Lewis, 7 C. & P. 347. — Coleridge, J. In considering which party ought to begin, it is not so much the form of the issue which is to be considered as the substance and effect of it; and the judge will consider what is the substantial fact to be made out, and on whom it lies to make it out. In an action of covenant to repair, the breach was, that the defen- dant did not repair, but suffered the premises to be ruinous, &c. Plea, that the defendant did repair, and did not suffer the premises to be- come ruinous, &c. :— Held, that on this issue the plaintiff must begin. Soward v. Leggatt, 7 C. & P. Gl3.— Abinger, Lord. The declaration stated, that the defendant agreed to deUver " hay of good quality, and such as no reasonable man would object to." Breach, that although the plaintiffs were willing to accept the hay, the defendant refused to deliver any other hay than of bad quality. Plea, that the defendant tendered hay " of good quality, and such as no reasonable man would object to, and the plaintiffs refused to receive it; without this, that the plaintiffs were ready and willing to accept the residue of the hay as in the declaration mentioned," concluding to the country : — Held, that on these plead- ings the plaintifis must begin, as the plea was a traverse of an alle- gation in the declaration. Crowley v. Page, 7 C. & P. 789. — Parke, B. In assumpsit, for unworkmanlike execution of a contract. Plea, the work was properly done; the ])laintiff is entitled to begin. Amos V.Hughes, 1 iM. & R. 464.— Alderson, 13. In replevin, any issue in which the affirmative is on the plaintiff gives him the right to begin. James v. Salter, 1 M. & R. 501. — Gur- ney, B. In an action on a policy of insurance on a life, the defendant pleaded that the declaration contained in the policy was untrue in this, that the person was not in good health. Replication, that the declaration in the policy was true, and that the party was in good health : — Held, that on these pleadings the plaintiff was entitled to begin. Rawlins v. Bashorough, 8 C. & P. 321 ; 2 M. & R. 70.— Denman, Lord. To a declaration on an agreement for not repairing premises in a reasonable time, the defendant ])leaded that he did repair within a reasonable time : — Held, that on these pleadings the plaintiff should begin, for if no evidence was oH'ered on either side, the defendant NISI PRIUS. 189 •would succeed. Belcher v. M'Intosh, 8 C. & P. 720 ; 2 M. & R. 186. — Alderson, B. If in replevin the defendant avow for rent inarrear, and the plaintiff reply riens in arrear, the plaintiif must begin. Cooper v. Egginton, 8 C. & P. 748.— Patteson, J. On issues joined in an action on a charter-party, " that the defen- dant did furnish sufficient cargo," and " that the plaintiff refused, after notice, to receive the cargo offered," the plaintiff is entitled to begin. Ridgway v. Ewbank, 2 M. & R. 217. — Alderson, B. As to the right to begin in those cases which are not within the rule of the judges as to personal injuries, libel, and slander, but where the affirmative of the issue is on the defendant : — Held, that it must be left to the judge to decide in each particular case, whe- ther the substantial question is the assessment of damages ; and if it is, the plaintiff will be entitled to begin. Hoggett v. Oxley, 9 C. & P. 324 ; 2 M. & R. 251.— Maule, J. In assumpsit, on the warranty of a horse, where the plaintiff in his declaration averred that the horse was not sound, and the defendant only pleaded that it was ; upon which issue was joined : — It was held, that the plaintiff had the right to begin. Osborn v. Thompson, 9 C. & P. 337 ; 2 M. & R. 254.— Erskine, J. In an action on a bill of exchange by indorsee against acceptor, the defendant pleaded pleas, denying the acceptance and the indorsement, and also two pleas of payment, upon all of which issue was joined. The defendant's counsel at the trial offered to admit the acceptance and indorsement, and wished to begin :— Held, that this admission of all the facts, the proof of which was on the plaintiff, did not entitle the defendant to begin. Pontifcx v. Jolly, 9 C. & P. 202. — Alderson, B. In assumpsit for wrongfully dismissing a " pupil and assistant" to a surgeon, the defendant pleaded that the pupil and assistant so mis- conducted himself as to make it necessary to dismiss him to prevent his ruining the defendant's practice, and the plaintiff' replied de in- juria: — Held, that on these pleadings the plaintiff was entitled to begin. Wise v. Wilson, 1 Car. & K. 662. In all cases at Nisi Prius, in which the plaintiff claims damages, the amount of which is unascertained, he has a right to begin, al- though the affirmative of the issue on the record rests with the defend- ant. In an action of covenant by an attorney's clerk for improperly dismissing him, jjlea, that he conspired with A. B., and in pursuance of that conspiracy was guilty of divers acts of misconduct (which the plea set out,) whicli came to the defendant's knowledge, who there- iipon dismissed him: replication de injurifi: — Held, first, that the plaintiff was entitled to begin ; secondly, that to support tlie jilea it was necessary for the defendant to show that he knew and acted upon the knowledge of the alleged misconduct, when he dismissed the plaintiff. Mercery. Whull — Lord Denman, Derby Summer Assizes, 1844. A motion being made on the .ibove ruling, Lord Denman observed, " I had to decide this point against the authority of a case entitled to great consideration, — Stanton v. Paton, 1 Car. & K. 143, which was an action for breach of promise of marriage, and tlie only plea, a plea of release ; Lord Abinger, who tried that cause, held, after ar- 190 NISI PRIUS. gument, and after consulting my brother Patteson, that the defendant was entitled to begin." 14 Law J., Q.. B. 2G7. In replevin, defendant made cognizance as bailifl' of H. for rent in arrear. Plaintiff' pleaded in bar, tliat the distress was not made within twenty years next after the right to distrain accrued. The defendant replied, that the distress was made within twenty years after the right to distrain accrued : — Held, that the plaintiff should begin, inasmuch as the affirmative was involved in his plea. Collier v. Clerk, 5 Q,. B» 467; 9 Jur. 158. Assumpsit on a life policy, one of the terms of which was, that it ehould be void if anything stated by the assured, in a declaration or statement given by him to the directors of the insurance company, be- fore the execution of the policy, should be untrue. The declaration in the cause averred the truth of this declaration and statement of the assured. The defendant pleaded pleas, respectively alleging, (1 and 2) that the said declaration and statement of the assured was untrue in this, that at the time of malting it he had had spitting of blood, con- sumptive symptoms^ and affection of the lungs, an affection of the liver, and a cough of an inflammatory and dangerous nature ; sixthly, that at the time he was afiected with a disorder tending to shorten, life ; seventhly, that he was not at that time in good health, and eighthly, that he had falsely averred therein that T. W. was his visual medical attendant. Issues were joined on these pleas : — Hdd, that the plain- tiff was entitled to begin at the trial, the issue on the seventh plea ; and, semble, on the other pleas also, being upon him. Geachv. Ingall, 14 Mee. & W. 95 ; 9 Jur. G91. Assumpsit on a policy of assurance on life, one of the terras of which was, that it should be void if anything stated by the assured, in a declaration or statement given ]jy him to the directors of the assurance company before the execution of the policy, should be untrue. In this declaration the assured stated, that he had not been afflicted with rupture, or any other disorder which tends to the shortening of life. The declaration in the cause averred the truth of the statem.ent of the assured. Plea, that the declaration or state- ment was untrue, to wit, in this, that the assured, at the time of the making thereof, was afflicted with rupture, concluding with a verification. Replication de injuria: — Held, that the plaintiff was en- titled to begin. Ashby and others v. Bates, 15 Law J., Ex. 349. Where, to an action against the maker of a i)romissory note, proof of the first four issues lay on the defendant, and to a plea of payment into court the plaintiff replied that the defendant was indebted to him in a larger amount than the sum paid in : — Held, that the plaintiflF was entitled to begin. Booth v. Millns, 15 Law J., Ex. 354. Rir/ht to begin — hy the defendant.'\ In trespass, with plea of liberum tenementum, and no general issue, the defendant is entitled to begin» Pearson v. Coles, 1 M. & 11. 2()G. — Patteson, J. Where a defendant in replevin pleads property in a third person^ and issue is taken thereon, he is entitled to begin. Colstone v. Hiscolbs, 1 M. & R. 301. — Alderson, B. In an action for trespass for taking goods, the defendant, without pleading the general issue, pleaded that the house of the plaintiff was. NISI PRIUS. 191 "within and parcel of the parish of M," and that he, being a constable, took the goods under a warrant of distress for parochial rates. The replication stated that the house was not "within or parcel of the parish of M." The plaintiff's counsel claimed the right to begin, as he had to prove the demand of perusal and copy of the warrant. This the defendant's counsel offered to admit: — Held, that the de- fendant had a right to begin. Burrell v. Nicholson, 6 C. & P. 202 ; 1 M. & R. 304.— Denman, Lord. In ejectment by lessors claiming under several descents from a particular ancestor, when the defendant admits all the descents ex- cept the' first, and claims under a will of this ancestor, the defendant is entitled to begin. Doe d. WoUaston v. Barnes, 1 M. & R. 386. — Denman, Lord. In an action by the indorsee of a bill of exchange against the ac- ceptor, the defendant pleaded, first, that the bill was accepted for a debt from which he was discharged under the Insolvent Debtors Act, of which the plaintiff, at the time of the indorsement, had notice ; and secondl)', that the bill was accepted to induce the drawer not to oppose the discharge of the defendant under that act, of which, at the time of the indorsement, the plaintiff had also notice. The plaintiff, in his replication, denied the notice in each of the pleas : — Held, that on these issues, the defendant must begin, and that the onus of proving that the plaintiff" had notice was on the defendant. Warner v. Haines, 6 C. & P. 696- — Denman, Lord. If, in assumpsit on bills of exchange, with a count upon an account stated, the defendant pleaded payment to the counts on the bills, and non assumpsit to the account stated : — Held, that the defendant is en- titled to begin, unless the plaintiff's counsel have some evidence to give upon the account stated. Smart v. Rayner, 6 C. & P. 721. — Parke, B. On a plea of payment, if that be the only one, the defendant is bound to begin. Richardson v. Fell, 4 Dowl. 10. A party gave a cheque for the amount of a deposit on a sale by auction, and the sale was void. In an action on the cheque, he pleaded there was no consideration for the cheque, and the plaintiff replied that there was consideration : — Held, that on this issue the defendant must begin. Mills v. Oddi/, 6 C. & P. 728.— Parke, B, In a covenant to recover damages for non-performance of an agree- ment under seal, if the defendant plead only, that the deed was ob- tained by fraud and covin, the affirmative of the issue being upon him, his counsel has a right to begin, although the damages are uncertain, and evidence is necessary to guide the jury in forming their estimate of them. Reeve v. Underhill, G C. & P. 773. In an action for debt, for a penalty of 50/., for taking the plaintiff to prison under mesne process, within twenty-four hours, the de- fendant pleaded that it was by the plaintiff''s own consent. Replica- tion, that he did not consent. The defendant is entitled to begin, as the plaintiff does not go for unliquidated damages. Silk v. Hjiot- phrey, 7 C. & P. 14.— Coleridge, J. In action on a bill of exchange, by the indorsee against the acceptor, the defendant pleaded that it v/as an accommodation bill, and that a blank acceptance had been filled up, and apjilied in discharge of this and other bills ; the plaintiff replied that the defendant "broke his promise without such case as in his plea is alleged :" — Held, i02 NISI PRIUS. that tlie defendant was entitled to begin. Faith v. M'Intyre, 7 C. cK; P. 44.— Parke, B. In assum|)sit, the ])lea was, as to 20Z. payment, and as to the resi- due, a set-otf. The defendant must begin. Coxhead v. Huish, 7 C. & P. G3.— Parl^e, 15. Assam]isit on a bill of exchange, by indorsee against acceptor. The only ])lea was, that the bill had been altered after acceptance : — Held, that the defendant's counsel had the right to begin, and that upon his calling for the bill, the plaintiff' 's counsel ought to produce it without notice. Barker v. Malcolm, 7 C. & P. 101.— Tindal, L. C. J. If, in an action for non-repair, &c., the defendant plead affirmative pleas, which are denied by the replication, the defendant is entitled to begin. Lewis v. Wells, 7 C. & P. 221.— Coleridge, J. To a mandamus to a rector to restore a parish clerk, the rector returned, that the clerk was guilty of acts of intoxication, and there- fore he dismissed him. The clerk brought an action for a false return, and in his declaration cited the return, and negatived the allegations contained in it. The rector, by his plea, repeated the charges con- tained in the return : — Held, that on these pleadings, the defendant had the right to begin. Bowles v, Neale, 7 C. & P. 2G2. — Denman, Lord. In covenant, where the affirmative of the issues is on the defendant, he is entitled to begin, though the damages are unascertained. Woo- ton V. Barton, 1 M. & R. 518.— Parke, B. Where the plaintiff" in ejectment claims as heir-at-law, and the defendant as devisee, if the heirship be admitted, the defendant is en- titled to begin, though the plaintiff' professes to set up an outstanding terra as to part of the property. Doe d. Smith v. Smart, 1 M. & R. 476- — Gurney, B. Where the substantial question to be tried is the existence of a custom affirmed by the defendant, he is entitled to begin, although the plaintiff''s counsel alleges that he seeks to recover real damages. Bastard v. Smith, 2 M. & R. 129-— Tindal, L. C.J. In an action against the maker of a promissory note for lOOZ,, the defendant pleaded that it was agreed between him and the payee, at the time of making the note, that the note was to be paid by his carrying goods for the payee, and that it was indorsed to the plaintiff^ without consideration. Replication, that the plaintiff" gave a consider- ation of 49Z. for it : — Held, that on this issue the defendant must begin ; and that if he off'ered no evidence, the plaintiff" was entitled to •a verdict for 49^. Edwards v. Jones, 7 C. & P. G33. — Alderson, B. In an issue under the Interpleader Act, the plaintiff" averred in the declaration, that certain goods were not the property of the plaintiff's, or either of them. Plea, that the goods were the property of the plaintiff"s, or one of them : — Held, that on this issue the defendant had the right to begin. Hudson v. Brown, 8 C. & P. 774. — Abinger, Lord. In assumpsit for wrongfully dismissing a teacher in a school before the expiration of a year, for which he was engaged, and the defendant pleaded only a special plea, justifying the dismissal, upon which issue was taken: — Held, that on this issue the defendant was entitled to begin. Harnett v. Johnson, 9 C. & P. 206. — Rolfe, B. In an action of trespass for taking the plaintiff' 's goods, the defen- NISI PRIUS. 193 dant pleaded, — first, as to part of the goods, that he took them as a distress for an annuity payable to M. A. ; and secondly, as to the residue, he justified the taking as a distress for rent due to J. A. Replication, to the first plea, that the annuity was not in arrear ; and to the second, non tenuit: — Held, that on these pleadings the de- fendant was entitled to begin. Aston v.Perhes, 9 C. & P. 231. — Patteson, J. To an action to recover damages for the non-performance of several contracts, by which the defendant undertook to d.3liver divers quanti- ties of spelterwithin certain specified times, the defendant pleaded, first, that the plaintiff induced him to enter into the contracts by fraud, covin, and misrepresentation ; and second, that he would have dehvered the spelter within the time specified, but was hindered from so doing by the fraud, &c. of the plaintiff: — Held, that the defendant had the right to begin. Stcinkeller v. Newton, 9 C. & P. 313. — Tindal, L. C.J. If in assumpsit the defendant i)lead his discharge under the Insol- vent Debtors Act, and no other plea, and the plaintiff by his replica- tion deny the plea, the defendant must begin. Lambert'v. Hale, 9 C. & P. 506.— Parke, B. In assumpsit by the holder ngainst the acceptor of a bill of exchange, the declaration stated that the drawer indorsed to the plaintiff. The defendant pleaded, that the bill was drawn and accepted for his accommodation, and handed to the drawer that he might get it dis- counted ; that the drawer indorsed it in blank, and dehvered it to one A. to get it discounted, who, against good faith, delivered it to the plaintiff, for a purpose unknown to the defendant, of all which facts the plaintiff had notice: — Held, that on this state of the pleadings the defendant must begin. Lees v. Hoffstadt, 9 C. & P. 599. — Gur- ney, B. To an action by the indorsee of a promissory note against the maker, the defendant pleaded, that after the blank indorsement, and before the delivery of the note to the plaintiff, it was in the hands of G. v., as the lawful owner, at the time of making an order of nisi prius, whereby the note and the claim of G. V. thereon were referred to arbitration ; that the note was fraudulently delivered to the plaintiff by G. V. after the making of the order, and before any award was made ; and that the plaintiff took the note with the full knowledge of the premises. The replication traversed the knowledge of the plain- tiff. Notice was given to the plaintiff, to prove the consideration given by him : — Held, that under these pleadings, the burden of proof lay ujjon the defendant, and that he was bound to begin. Smith V. Martin, 11 Law J., Ex. 129. — Abinger, Lord. In debt, the declaration was for 40/., for goods sold, and for 40Z. on an account stated ; the particulars of demand were for a balance of 29/. 10,9. ; but in the particulars no credits were given, or dates specified. The defendant pleaded a general plea of payment to the whole declaration : — Held, that under these circumstances the defen- dant must begin. Birt v. Leigh, 1 Car. & K. fill.— Pollock, L. C. B, In an action for selling oil for the hair in bottles, and with envelopes resembling those of the plaintiff's, the defendant pleaded, that the oil sold by the plaintiffs was prepared from oil of an inferior quality, and was useless and valueless, and that the plaintifils knew it ; and that the oil sold by the plaintiffs was by reason thereof a fraud on all K 194 NOLLE PROSEQUL persons buying the same. The plaintiffs replied de injuria : — Held, that on these pleadings, the defendant was entitled to begin. Row- land V. Berhens, 1 Car. & K, 4G. — Abinger, Lord. To an action of trespass qu. cl. fr., the defendant justified the entry. Sec, for the purpose of removing an obstruction to his enjoyment of a right. The replication traversed the right : — Held, that on the counsel for the plaintiff, at the trial, dechning to say that they intended to proceed for substantial damages, the judge rightly decided that the defendant should begin. Chap7nan v. Rawson and others, 15 Law J., Q. B. 225.— Tindal, L. C. J. In ejectment where the lessor of the plaintiff claims title to the premises as devisee under the testator's will, the e.xecution of which is admitted by the defendant, who claims title to the same premises under a will subsequently executed by the testator : — Held, that the defendant should begin. Doe d. Bather v. Brayne and another, MS. Salop Spring Assizes, 1847. — Gaselee, Serjeant. NOLLE PROSEQUL A nolle prosequi is a bar to a future action.'] The plaintiff on a declaration containing several counts, after the defendant had suffered judgment by default, entered upon the record a nolle prosequi to some of the counts, and afterwards commenced an action on the sub- ject to which such counts were applicable. The court held, that such nol. pros, after judgment was equivalent to a retraxit, and a bar to any future action. Bowden v. Home, 1 Bing. 714. Where a nolle prosequi is entered on a plea, going to the whole cause of action, the defendant is entitled to judgment upon the whole record. Veters v. Croft, 6 Scott, 897. Nolle prosequi, effect of, in pleading^ To a declaration in assump- sit for goods sold and money had and received, damages 100/., the defendant pleaded, first, non assumpsit ; secondly, the statute of hmitations; third]3% payment; fourthly, a set-off of 58/. 15s. on a judgment, and of 200/. for money paid, &c. The plaintiff, by his replication, joined issue on the first plea, and traversed the others, except as to so much of the plea of set-off as related to the judgment, and as to that replied, that he would not further prosecute his suit, in respect of so many of the promises in the declaration as were satisfied by the said judgment being so set off. On the trial, the plaintiff proved the defendant was indebted to him in 28/. I6s. lit/, only, and that no part of that sum was barred by the statute of limitations. Some of the items in the plaintiff's particulars of demand were barred by the statute. No evidence was given of any payment by the defendant, or of any set-off, except as admitted on the record : — Held, that the nolle prosequi was entered to the whole cause of action; that the verdict should be entered for the defendant upon the first and second issues ; and for the plaintiff on the third and fourth ; and that the defendant was entitled to judgment on the whole record. Amor v. Cuthberf, 10 Law J., C. P. 274. Nolle prosequi, co-defendant, entering o/.] A nolle prosequi against NON PROS. 195 one of two defendants may be entered at the trial of the cause upon the nisi prius record ; but nolle prosequi is not proved by the pro- duction of the issue roll, which is not a record of the court until brought in and entered upon the roll. Fagan v. Dawson and another, 11 Law J., C. P. 319. NON PROS. Nan pros. — one of several defendants not entitled to judgment. '\ In trespass against several defendants, one defendant who has alone de- manded a declaration, which has not been delivered, is not entitled to sign judgment of non pros, for all the defendants. Hamlet v. Breedon, 4 Man. & G. 909 ; S. C. nom. Hamlet v. Bingham, 5 Scott N. S. 889. Non pros, for not declaring.^ If a demand of declaration has been served, and time to declare is obtained, the defendant may sign judg- ment of non pros, without a fresh demand of declaration. Wells v. Hare, 1 Dowl, 366. The defendant being entitled to sign judgment of non pros, for want of a declaration, the plaintiflF's attorney, to prevent the non jiros., ob- tained a rule to discontinue on payment of costs ; instead of comply- ing with such rule, as soon as it 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, 8 Bing, 375; 1 Law J., C. P. 117; 1 M. &Sc. 581. Non pros., appearance must be complete and regular.'] In an action against several defendants, a judgment of non pros, cannot be signed until all have appeared. Palmer v. Feistel, 2 Dowl. 507. The defendant entered an irregular appearance within the eight days ; the plaintiff nave him notice of the irregularity, and he promised to examine and correct it, but, instead of doing so, entered a new ap- pearance in the next term in a fresh book, and demanded a declara- tion ; and the plaintiff not declaring in due time, the defendant signed judgment of non pros. The court held, that the irregular appearance might have been corrected in the book, and set aside the judgment of non pros. ; the costs to be costs in the cause. Bate v. Bolton, 2 C. M. & R. 365 ; 4 Dowl. 160 ; 1 T. & G. 148. Non pros, on an imperfect application.'] Where the plaintiff replies that he is satisfied on payment of money into court, the defendant is entitled to judgment of non pros, on the other pleas. Emmett v. Stan- den, 3 Mee. & W. 497 ; 7 Law J., Ex. 198 ; 6 Dowl. 591 ; and Top- ham V. Kidmore, 5 Dowl. 676. Non pros, for not entering issue.] After a judge's order for time to enter the issue, the defendant may sign judgment of non i)ros. imme- diately on the expiration of the time, without giving the plaintiff twentj'-four hours more. Davies v. Cooper, 4 Doug. 5. But a non pros, for not entering the issue pursuant to rule is irre- gular after notice of trial. Howell v. Jacobs, 5 Dowl. 394. K 2 196 NONSUIT. Non pros., motion to set aside — affidavit. The affidavit in support of a motion to set aside a jud^rment of non pros., should state either that there is a ^ood cause of action on the merits, or that there is a present cause of action. Cortessos v. Hume, 2 Dowl. 134. Jndf/ment of non pros, signed too soon.~\ Whether an appearance be entered in term or vacation, the plaintiff lias the whole of the term next follnwinir to declare in ; and therefore where an ap])earance was entered in Easter term, and judgment of non pros. si1. or more : — Sem- ble, that the officers of the court are entitled to their fees. James v. Harris, 7 Dowl. 257. PLEADING. Time to plead to count from rule to plead and not from demand of plea.] The plaintiff delivered his declaration on the 5th June, in- dorsed " plead in four days or judgment." The rule to plead was entered on the 6th June : — Held, that the defendant had the whole of the 10th June to plead, and that judgment signed on that day for want of a plea was irregular. Dunn v. Hodson, 1 Dowl. & L. 204, Q. B, Time for pleading in a town cause having a country attorney.] An attorney residing more than forty miles from London is still bound (since 2 Will. 4, c. 39) to plead within four days after service of decla- tion and notice to plead in a London cause. Kinder and another v. Dunford, 10 Law J., Q. B. 131. Computation of time in pleading.] Where three months' time to plead is given generally, they are to be reckoned by lunar monthsj and not calendar months. Super v. Curtis, 2 Dowl. 237, E.v. L 3 226 PLEADING. Time to plead pending a summons for particulars of demand.'] Where the defendunl's time to plead expires (hiring the pendency of a suru- raons for particulars, if the summons is dismissed, he has only the rest of the day to deliver his pleas, and is not entitled to the same time which he had when the summons was returnable. Mengens v. Perry, 10 Jur. 742 ; 15 Law J., Ex. 307. Order for time to plead peremptorily .^ A judge's order, made by consent, that a defendant shall have until a certain day to plead peremp- torily, does not preclude him from ajjplying to a judge by summons for additional time. Beazley v. Bailey, 10 Jur. 906. Time to plead by judge's order counts from the date of the order.~\ The additional time indorsed by consent on a summons after a rule to plead, is to be computed from the date of the judge's order, and not from the expiration of the time allowed by the rule to plead. Lane v. Parsons, 6 Law J., C. P. 26 ; 3 Scott, 652 ; 5 Dowl. 359. Time to plead in action for penalties, to give time to apply to parlia- ment.'] The court will not interfere to allow a defendant further time to plead in an action for penalties, on the ground of its being sworn to be the intention of several parties to apply to the legislature for an act to relieve the parties from penalties, and that the plaintiff's attor- ney has consented not to oppose the bill. Grant, q. t. v. Ridley, 12 Law J., C. P. 151. Rule to plead not necessary after an order for time.] After a judge's order, directing the defendant to plead within a given time, if no plea is pleaded within that time, the plaintiff may sign judgment without giving a rule to plead. ISlias v. Spratley, 4 B. & C. 386; and Nugee V. M'Donell, 3 Dowl. 579, B. C. A summons for time is a waiver of the rule to plead. Bolton v. Manning, 5 Dowl. 769, Ex. Rule to plead — when to be given.] When a rule to plead is given before notice of declaration, it is irregular; hut the irregularity is waived by taking out a summons for time to plead. Pope v. Mann, 2Mee. &W. 881. There is no irregularity in entering a rule to plead before notice of declaration, but on the same day. Aitman v. Conway, 3 Mee. & W. 71; 6 Dowl. 76 ; and Chapman v. Davis, 8 Dowl. 831, C. P. Rule to plead once given is sufficient.] Where the declaration and rule to plead were both in vacation, a judgment signed in the next term, without a new rule to plead, held regular. Mould v. Murphy, 2 Dowl. 54. After a rule to plead in Easter term, in an action on a bill of ex- change, defendant paid a portion of the bill, with the costs to that time, and agreed to pay the residue, with the costs of the action, the 1st of October following, if it were not previously paid by another party : no payment having been made according to the agreement : — ■ Held, that plaintiff might sign judgment in Michaelmas term, without PLEADING. 227 a fresh rule to plead. Osborne v. Pennell, 1 Bing. N. C. 320 ; 1 Scott, 277. Pleading issiiably.'] The common order to " plead issuably" applies to the plea only, and not to the rejoinder or subsequent pleadings. Woodman v. Goble, 3 Mee. & W. 304; 7 Law J., Ex. 59; 6 Dowl. 371 ; and Betts v. Applegarth, 4 Bing. 2G7. It seems that an issuable plea is not merely a plea on which issue may be taken, but one that goes to the substantial merits of the action. Staples V. Holdsworth, 5 Scott, 432; 7 Law J., C. P. 66; 6 Dowl. 196. . In an action for goods sold and delivered, a plea that the plaintiff, before the commencement of the action, and after the debt was con- tracted, became a bankrupt, is an issuable plea. Willis v. Uallett, 7 Scott, 474 ; 8 Law J., C. P. 244. The defendant, being under terms to plead issuably, pleaded to debt on bond, that the plaintiff had promised to forbear further pro- ceedings on the performance of certain conditions by the defendant, which were performed. The plaintiff having signed judgment for want of a plea, a rule to set aside the judgment was discharged, with costs, on the ground that the plea was frivolous. Blackburn v. Ed- wards, 10 Ad. & E. 21 ; 8 Law J., Q. B. 200; 2 P. & D. 237. The defendant being under terms of pleading issuably, pleaded to an action on a banker's draft, that the sole cause of his making the draft was for money won by one H. B., in a common gaming house, from the defendant by gaming. The court held that this was not an issuable plea, and refused to set aside the judgment that had been signed by the plaintiff as for want of a plea. Humphreys v. Waldegrave {Earl), 6 Mee. & W. 622 ; 9 Law J., Ex. 244 ; 8 Dowl. 768. If a defendant is under terms to plead issuably, and he pleads nun- quam indebitatus to a declaration containing counts on bills of ex- change, as well as for goods sold and delivered, the plaintiff may treat the plea as a nullity, and sign judgment as for want of a plea. Sewell V. Dale, 8 Dowl. 309. A plea raising a fair question of doubt on a matter of law, the deci- sion of which will determine the legal rights of the parties on the merits, is an issuable plea. Zuluetta v. Miller, 15 Law J., C. P. 267; 10 Jur. 859. The defendant being under terms of pleading issuably, put in a special demurrer, and the plaintiff signed judgment as for want of a plea. The court held that the plaintiff was entitled to do so. Sautell V. Gillard, 5 Dowl. 620, K. B. Where the defendant being under terms of pleading issuably, pleaded a plea clearly frivolous, and so late that the demurrer could not be argued in the term, the court set it aside, and gave leave to sign judg- ment, unless the defendant would undertake to go to trial at the first sittings, and pay the costs of amending and of the rule. Brown v. Austin, 4 Dowl. I6l, Ex. Undertaking to plead issuably how waived.'] Where a defendant being under terms to plead issnably, the plaintiff, before the time for pleading is out, obtains an order for leave to amend the declaration by adding 228 PLEADING. a particular allegation, the defendant having liberty also to plead traversing that allegation, and the declaration is amended accordingly, the undertaking to plead issuably is thereby done away with. Hutt v. Giles, 1 1 Mee. & W. 756. And if a plaintiff amend his declaration after a defendant has ob- tained time to plead on the usual terms of pleading issuably, &c., the latter is at liberty to demur specially to the declaration. Children v. Mannering, 8 Dowl. 1 20, B. C. Non issuable plen how waived.'] Obtaining time to reply is a waiver of an objection that the plea is not an issuable one, the defendant being under terms to plead issuably. Trott v. Smith, 9 Mee. & W. 765 ; 2 Dowl. N, S. 278. Frivolous and non-issuable plea. "] Where after a frivolous and non- issuable plea, the plaintiff signed judgment as for want of a plea, a rule to set aside the judgment was discharged with costs. Blackburn V. Edwards, 10 Ad. & E. 21, The court will set aside pleas which are frivolous or absurd, though the defendant be not under terms of pleading issuably. Horner v. Keppel, 10 Ad. & E. 17 ; 2 P. & D. 234 ; and Mileyy. Walls, 1 Dowl. 648. A plea offering several defences must be pleaded by order.] Where the defendant pleaded a plea offering several defences to the action, and raising several issues, both of fact and law, without leave to plead several matters, the court confirmed an order, made by a judge at chambers, for setting it aside, without an affidavit of its falsehood. Balmanno v. Thompson, 8 Dowl. 76; 6 Bing. N. S. 153. Pleading false pleas for delay.] Where, by the plaintiff's own laches, on a plea of judgment recovered, no time remains to obtain a judgment of the term in the regular course, the court will not give leave to sign judgment as for want of a plea, on an affidavit that the plea is false, or, semble, that the defendant's attorney has admitted it was put in merely for delay. Foole v. Salter, 1 Law J., Ex. 65 ; 2 C. & J. 85 ; 1 Dowl. 297. To debt on a judgment, the defendant pleaded a release of Decem- ber, 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, 8 Bing, 435 ; 1 M. & Sc. 676 ; 1 Law J., C. P. 130. Where a single plea is calculated to perplex, and renders it necessary for the plaintiff to consult counsel, the court, upon an affidavit that it is false, will allow judgment to be signed as for want of a plea. Thus, in an action on a bill of exchange by the indorsee against the acceptor, where the defendant pleaded " that the bill was obtained without consideration ; that a blank piece of paper on a 2s. 6d. stamp was handed to him, with a request that he would put his name as acceptor ; that he accepted the bill payable at a particular place only ; and that these facts were known to the plaintifl^'," the court gave the plaintiff leave to sign judgment as for want of a plea, on an affidavit PLEADING. 229 that all the allegations in the plea were false. Miley v. Walls, 2 Law J., Ex. 170, Frivolous pleas.'] A jud^e at chambers as well as the court has authority to set aside frivolous and perplexing pleas, and to allow the plaintiff to sign judgment. Balmunno and others v. Thompson, 9 Law J., C. P. 57. Pleading issuably — obtaining order for particulars of set-off — waiver of objection.] Where a defendant is under terms of pleading issuably, and one of the pleas is a set-otF; obtaining an order for particulars of the set-ofF is a waiver of the objection that the pleas are not issuable. Scott V. Watson, 3 Dowl. & L. 208 ; 1 C. B. 826. The terms of pleading issuably are waived by a subsequent amend- ment of the declaration.] A defendant being under terms of pleading issuably, the plaintiff, before plea, obtained an order to amend his declaration by inserting an averment, which the defendant was to be at liberty to traverse :• — Held, that the defendant was released from the terms of pleading issuably. Chapman v. Giles, 1 Dowl. & L. 389, Ex. Pleading issuably in assumpsit on an attorney's bill.] In an action by an attorney for work and labour, a plea that the plaintiff" has not delivered a signed bill, a month before action brought, is an issuable plea, within the meaning of the terms to plead issuably. Wilkinson V. Page, 1 Dowl. & L. 913, C. P. Non-issuable pleas although pleaded by judge's order enables plaintiff to sign judgment.] A defendant being under terms to plead issuably, applied for leave to plead several pleas, which were objected to by the plaintiff's as being non-issuable; notwithstanding which the judge made the order allowing the pleas. The pleas having been pleaded pursuant to the order, the plaintiffs signed judgment as for want of a plea : — Held, that the plaintiff was right in signing judgment, the pleas being clearly non-issuable. Capner and others v. Mincher and others, 13 Mee. & W. 704 ; 2 Dowl. & L. 694. Pleading in libel general issue and special plea.] In an action for libel in a newspaper, defendant will not be allowed to plead to the same cause of action, the general issue and a special plea of an apology and payment of money into court, under 6 & 7 Vic. c. 96. O'Brien v. Clement, 3 Dowl. & L. 6"6 ; 15 Law J., Ex. 244. Pleading several pleas.] The general issue "by statute" cannot be pleaded with a special plea. Legge v. Boyd, 9 Dowl. 39 ; 2 Scott, N. S. 1 ; 1 M. & G. 898; and Neal v. M'Kenzie, 1 C. M. & R. 61. The court, in the exercise of its discretion, under stat. 4 Anne, c. 16, s. 4, will not give leave to plead not guilty " by statute," together with a special ])lea, although such jdea raise a defence independent of the statute. Ross v. Clifton, 1 1 Ad. & E. 631 ; 9 Dowl. 1033. A defendant may plead several pleas, showing different legal con- clusions from the same facts, Curry \. Arnott, 5 Bing, N, S, 224; 7 Dowl. 249 ; 7 Scott, 172. 230 PLEADING. No rule to plead several matters is required, where the pleas are added under a judge's order. Mnnck v. Shcnstone, 3 Scott, 661. A ])lea of minquam indehitatus as to all except a certain sum, and a tender of that sum, does not require a rule to plead several matters. Archer v. Garrard, 3 Mee. & W. 63; 6 Dowl. 132. Where a plaintiff has consented to a rule to plead s:everal matters, the court will not entertain an api)lication to set aside any of these pleas. Hoiven v. Carr, 5 Dowl. 305, Ex. A summons to plead several matters returnable on the day after the time for ])leading expires : — Held to operate as a stay of proceedings at the hour when the judgment office opens, and as if a summons for further time to plead had been taken out, and judgment signed at the opening of the office therefore irregular. Wells v. Secret, 2 Dowl. 447, B. C. A summons to plead several matters, taken out on the day the time for pleading expires, returnable on the following day at eleven o'clock : — Held, that, until disposed of, it operated as a stay of proceedings, although the time for pleading had been enlarged. Spenceleyv. Shouls, 5 Dowl. 562, K. B. A plea is not to be disallowed because it is bad in law : the question is, whether it contains a distinct subject-matter of defence. Bulley v. Foulkes, 9 Law J., Ex. 185. The court have no discretionary power to allow several pleas, in a case where such pleas are prohibited by the new rules. The pleas of a custom unquahfied, and a custom qualified, cannot be allowed. Bustard v. Smith, 5 Ad. & E. 25 ; 6 Law J., K. B. 8 ; 1 N. & P. 242. Several matters cannot be pleaded to information of intrtision.^ The court has no authority under 4 & 5 Anne, c. 16, s. 4, to allow a de- fendant to plead several matters in an information of intrusion by the attorney- general. The Attorney-General v. Donaldson, 10 Law J., Ex. 139. Order to plead several matters, after judgment signed for want of a plea.^ Pending a rule, to set aside judgment that had been signed for want of a plea, the defendant obtained the order of a judge to plead several matters ; but the court set aside the order. Wilkes v. Ottley, 2 N. & P. 99. Pleading several pleas by public registered officer.'] The court will not allow a defendant, who is sued as public registered officer of a joint- stock banking company, to plead a traverse of the allegation in the declaration, that he was such officer at the commencement of the action, where the company are the real defendants, and there are pleas ■which go to the merits of the action. Needham v. Law, 12 Law J., Ex. 316. A flea of general issue under any statute must be so marked in margin.'] The rule of T. T., 1 Vic, with respect to the insertion of the words " by statute " in the margin of a plea of the general issue, is not in contravention of the proviso in 3 & 4 Will. 4, c. 42, s. I. And where a defendant pleads the general issue only, without inserting those words, he cannot at the trial be allowed to show, that he acted in the PLEADING. 231 execution of any act of parliament. Bartholomew v. Carter, 10 Law J., C. P. 257. If a defendant plead not guilty "by statute" to the declaration, that plea also extends to a new assignment. Mason v. Newland, 9 Car. & P. 575.— Patteson, J. Pleading the general issue " by statute."'] The court will not allow the plea of the general issue " by statute," to be pleaded together with special pleas. Thomsett v. Clifton and others, 10 Law J., Q. B. 233. Plea by statute — statement of the particular statute.] The defen- dant having pleaded a plea " by statute," the court onan affidavit, that the plaintiff was unable to discover the statute alluded to, compelled the defendant to name the statute, on pain of having the words " by statute" struck out of the margin of the plea. Coy v. Lord Forester, 8 Mee. & W. 312 ; 10 Law J., Ex. 262. To a plea amounting to the general issue, de injuria cannot be replied.] To debt for duties payable under the Ramsgate Harbour Act, the de- fendant pleaded a section of the statute, which exempted him from liability to pay the dues. The plaintiff replied de injuria : — Held, that the replication was bad, as the plea amounted to the general issue. Quaere, whether de injuria can be replied in an action of debt. Pelly V. Rose, 1 Dowl. & L. 601. Payment of money into court, and i^lea of payment.] In an action on a security bearing interest, the defendant paid into court a sum equal to the debt and interest up to the time of the action brought, but not to that of paying in the money. The court held, that the plaintiff was entitled to proceed in the action, and recover damages for the remaining interest. Kidd v. JValker, 2 B. & Ad. 705. A plea of payment of a less sum of money into court on a general indebitatus count or counts is good, though the amount, intended to be appropriated to each count, is not shown. Jourdain v. Johnson, 4 Dowl. 534; STyrw. 524. Where there are several counts for several causes of action, or se- veral breaches are assigned in covenant, the defendant may plead pay- ment into court of one entire sum in full satisfaction of all the counts or breaches. Marshall v. Whiteside, 4 Dowl. 766 ; 1 Mee. & W. 188. The court refused to allow a plea of payment, without paying in the money, on the ground of the sum indorsed having Ijeen paid in, in lieu of bail. Ball v. Stafford, 4 Dowl. 327 ; 2 Scott, 426. The plea of payment of money into court cannot be pleaded to the same cause of action covered by other pleas. Thompson v. Jackson, 8 Dowl. 591 ; 1 Scott, N. S. 157; l M. & G. 242. The plea of payment into court should conclude with the prayer of judgment, and be the last plea. Sharman v. Stevenson, 2 C. M. & R. 75; 3 Dowl. 709. Where a defendant has several defences to different parts of the plaintiff's demand, and intends to plead payment into court as to other parts of the demand, he should first of all plead those pleas, and then 232 PLEADING. the plea of payment of money into court as to the residue only. Coates V. Stevens, 3 Dowl. 7S4; 2 C. M. & R. 118. Payment into court admits the contract, if special ; if not, only as to the sum paid in. Seuton v. Benedict, 5 Bing. 31 ; 2 M. & P. 67 ; and Drake v. Leivin, 4 Tyrw. 730. Payment of money into court on a special count admits the contract stated in that count. If it he paid in on the general counts, it admits a liability to the extent of the sum paid in, and to that extent only. AVhere, therefore, in an action for work and labour, the defendant paid money into court to the amoimt of 10/., and the defendant, if liable at all, was only so, on a contract entered into by a third person, the de- fendant by that, admitted that such third person was his authorised agent to make a contract to the amount of lOl. ; but it was competent for him to show, that the authority given by him to such third person did not extend beyond that sura. The rule, which requires the bill of particulars to be annexed to the record does not make them part of the record, so as that payment of money into court, on a count for work and labour, would be an admission of something being done on the account mentioned in the particulars ; and the defendant may, not- withstanding, show that he is liable only to the amount paid in upon a different account of the same description. Meatier v. Smith, 1 N. & M. 449 ; 4 B. & Ad. 673 ; 2 Law J., K. B. 108. Payment into court — subsequent costs.'} The plaintiff" is liable to the subsequent costs, if he does not recover beyond the sum paid in. Jones V. Owen, 2 C. & J. 476 ; 1 Dowl. 565. The rule as to the plaintiff" not recovering more than the sum paid into court, as to costs, does not apply to unliquidated damages. Ack- wood V. Read, 5 Mee. & W. 542; 7 Dowl. 810. After an offer to pay under an order, and refusal, but subsequently accepted, the plaintiff is only entitled to costs up to the time of the order. Parsons v. Pitcher, 4 Bing. 306 ; 6 Dowl. 432 ; and Marryatt V. Clapp, 1 Dowl. 701, Ex. To fix a plaintiff with the costs incurred subsequently to a summons to stay proceedings, upon payment of a less sum than that demanded, which, having been refused, is, after further proceedings taken out of court, some ground of vexation and oppression must be clearly shown. Haivorth v. Hole/ate, 2 Y . & J. 257 ; Carr v. Smythers, 3 B. & B. 16S ; and Last v. Benton, 2 Marsh 478 ; and contra James v. Rayr/att, 2 B. & Aid. 77Q. Where an action of ejectment is brought on certain breaches, and money is paid into court on one of them, and the plaintiff takes it out, and does not proceed to trial, the defendant is entitled to judgment as in case of a nonsuit. Doe d. Stanley v. Towgood, 2 Dowl. 494, B. C. Plea of payment info court should cover debt and damages.} A plea of payment of money into court, in an action of debt, should answer both the debt and the damages for its detention, although, in the form of this plea given by the Reg. Gen. T. T., 1 Vic, no mention is made of damages when the plea is pleaded to this form of action. Lowe v. Steel, 15 Mee. & W. 380; 10 Jur. 787, Ex. In an action of debt for work and labour, money paid, &c., the de- PLEADING. 233 fendant pleaded that he paid to the plaintiff a certain sum of money " in full satisfaction and discharge of all the causes of action in the declaration mentioned." The plaintiff having signed judgment on the ground that the plea did not notice the damages claimed in the decla- ration : — Held, that the judgment was rightly set aside by a judge at chambers. Treston\.Barrinf/ton, 10 Jur. 928. Plea of payment into court in assault and battery.'] To an action for assault and battery, the defendant pleaded payment into court of 25Z., pursuant to the rule of T. T. 1 Vic. c. 7. The plaintiff replied, da- mages uhra ; on which issue was joined, and the defendant obtained a verdict : — Held, that the plaintiff was not entitled to judgment non obstante veredicto, because, although the plea of payment into court is prohibited in an ordinary action of assault and battery, by the 3 & 4 Will. 4, c. 42, s. 21, it did not appear upon the record that the de- fendant was not a person entitled, under some other statute, to pay money into court, by way of amends in such an action. Aston v. Perkes and another, 15 Mee. & W. 385. Payment into court in trespass, by judge's order, before declaration.] In an action of trespass a judge may make an order, before declaration, for the defendant to be at liberty to pay money into court under 3 & 4 Will. 4, c. 42 ; and if the defendant pleads that, " before the plaintiff declared," he paid into court a sum of money by way of compensation, and avers that the plaintiff' has not sustained damage to a greater, &c., on which the plaintiff takes issue, and that issue is found for the de- fendant, the court will not grant a rule for judgment non obstante veredicto. Edwards v. Price, 6 Dowl. 487, B. C. Payment into court in action on bond not jileadable.] Payment of money into court, under the 4 & 5 Anne, c. 16, s. 13, in discharge of principal and interest on a bond, and costs, cannot be pleaded to an action on a bond. England v. f^-'atson, 9 Mee. & W. 333. Payment into court as to one count and acceptance, no waiver of ob- jection to other pleas as non-issuable.] The declaration contained a count on a bill of exchange. The defendant paid money into court thereon, and jjleaded to the residue of the declaration. The plaintiff' having accepted the money out of court : — Held, on its being objected that such acceptance was a waiver of the objection to other pleas as non-issuable, that it was no such waiver. Verbist v. De Keyser, 3 Dowl. & L. 392. Payment of money into court.] An action for damages, occasioned by the negligently running down the plaintiff's boat by the defendant's vessel, is not an action for a debt or demand within the meaning of the 3 & 4 Will. 4, c. 42, s. 17. Watson v. Abbott, 2 C. & M. 150. In an action against a sheriff for a false return and for an excessive levy, and for not paying over the residue, the court refused to allow the sheriff to pay money into court with costs. Woodgate v. Baldock, 2 Dowl. 256, Ex. Where a whole count applies to a demand for unliquidated damages. 234 PLEADING. inonpy cannot be paid into court on a part of it. Hodges v. Lord Litchfield, 2 Dowl. 741, C. P. Money may be paid into court on one of several breaches of cove- nant, contained in a lease set forth in the declaration, if the plaintiff's particular specifies the sum he claims on that breach. Smith v. King, 2 Dowl. 751, C. P. In an action, by a landlord against a tenant, for not repairing, the court refused to allow the defendant to pay money into court by way of compensation and amends, under the 3 & 4 Will. 4, c. 42, s. 21. Serle v. Barrett, 2 Ad. & E. 82 ; 4 N. & M. 200. Payment of money into court in trespass and assault. '\ Trespass for breaking and entering plaintiff's house, and assaulting and beating his son : — Held, that the defendants might pay money into court under a judge's order, by virtue of 3 & 4 Will. 4, c. 42, s. 21. Newton V. Holford and others, 2 Dowl. & L. 554, Q. B, Money paid into covrt on jdea, how taken out on the death of defen- dant.^ Money paid into court on a plea of payment, and the suit having abated by the defendant's death, can only be paid out of court to the representatives of the defendant, and not on the application of the attorney. Palmer v. Reiffeinstein, 1 M. & G. 94. Plea of payment.'] Plea of payment, after the cause of action accrued, is sufficient without stating any day. Beesley v. Dolley, 6 Bing. N. S. 27 ; 8 Scott, 243. If a plea of payment professes to answer the whole declaration, the plaintiff cannot sign judgment as to part not answered. Wood v. Farr, 5 Bing. N. S. 247 ; 7 Scott, 270. A plea of payment after action brought need not mention the costs. Corbett v. Swinborne, 8 Ad. & E. 673. The replication may traverse the payment as well as the receipt. Webb V. Wheatherley, 1 Bing. N. S. 502 ; 1 Scott, 477. But strictly, need only deny the acceptance of the money. Ridley V. Tindall, 7 Ad. & E. 134. On a plea of payment of all the monies: — The court held, that the plaintiff need not new assign, but was entitled to recover the balance between the amount of debt proved and payment made. Freeman v. Crafts, 4 Mee. & W. 1 ; 6 Dowl. 698. Pleas of payment, or set-off, cannot be found distributively, unless the amount proved by the defendant equals the plaintiff's claim. Kilmer v. Bailey, 5 Mee. & W. 385 ; and Tuck v. Tuck, Id. 114. On a plea of payment, if that be the only issue, the defendant is to begin. Richardson v. Fell, 4 Dowl. 10. To entitle the defendant to a verdict, on a plea of payment, he must prove the exact sum statetl in the plea. Cousins v. Paddon, 2 C. M. & R. 547 ; 5 Tyrw. 535. Plea of payment where credit is given in the particulars.] Where payment is pleaded, after credit in the particulars, it applies to the balance. Eastwick v. Harman, 6 Mee. & W. 13; 8 Dowl. 399. PLEADING. 235 Pleading a set-off.'] A judgment recovered, after action brought, and before plea pleaded, is a good set-oft". Reynolds v. Beering, 4 Doug. 181. It is no answer to a plea of set-off" on a judgment recovered, that the plaintiff" has brought a writ of error, to reverse the judgment, which is still pending. lb. If the defendant plead the general issue and another plea, he can- not give evidence of a set-off under a notice, but must plead the set- off. Duncan v. Grant, 1 C. M. & R. 383 ; 3 Law J., Ex. 341 ; 4 Tyrw. 818. On a plea of set-off, the plaintiff" need not, in the first instance, prove the whole of his demand, but after the defendant has proved his set-off, is at liberty to give evidence of the parts of his demand, to meet the set-off. Williams v. Bavies, 1 C. & M. 164 ; 2 Tyrw. 383 ; 2 Law J., Ex. 202. Where a plaintiff replies to a plea of set-off, " that he never was indebted in manner and form," he is not at liberty to give evidence of payment in answer to the defendant's proof of his set-off. Stock- bridge v. Siissams, 11 Law J., Q. B. 217. Where a plaintiff repUes to a plea of set-off, that " he was not, nor is indebted to the defendant in manner and form," he is at liberty to give evidence of payment to support the replication. Harvey v. Holt- man, 12 Law J., Q. B. 185 ; and Jackson v. Robinson, 8 Dowl. 622. A plea of set-off is not divisible; the defendant by it alleges a demand, exceeding or equal to the plaintiff's claim, and if he do not prove that, fails on the whole of the plea. If he prove a part of his set-off, that may be taken in reduction of damages. Moore v. Butlin, 7 Law J., Q. B. 20 ; 7 Ad. & E. 595 ; 2 N. & P. 436. Where there are several counts, for several causes of action, a plea of set-off, of a smaller sum is good ; though it is pleaded generally to the whole declaration, and not applied to any particular count or sum. Noel v. Davis, 7 Law J., Ex. 287 ; 4 Mee. & W. 136 ; 7 Dowl. 48. A plea of set-off, which stated, " that before and at the time of the commencement of the action, the plaintiff" was indebted to the defen- dant," without adding " and still is indebted," was held bad on de- murrer. Dendy v. Powell, 3 Mee. & W. 442 ; 7 Law J., Ex. 154 ; 6 Dowl. 577. W'here a defendant pleads a set-off, which plea, as he is not able to support by evidence, is found against him, and afterwards brings an action to recover the amount of such alleged set-off', the verdict of the jury in the former action, and judgment entered thereon, may be pleaded as a bar to the action, and by way of estoppel to the claim. Eastmure v. Hawes, 8 Law J.,C. P. 236 ; 5 Bing. N. C. 444 ; 7 Scott, 461. A plea of set-off, "that before and at the time of the commence- ment of the suit, the plaintiff" was and still is indebted," &c., " for money due and owing from the plaintiff" to the defendant on an account stated," is sufficient without any other averment of time. Harsant v. Busk, 11 Law J., Q. B. 264. Plea of set-off averring the promises to be by defendant and another and plaintiff indebted to them.] A plea of set-off", in an action of assumpsit, averring that the promises, in the declaration mentioned. 236 PLEADING. were made ])y the defendant jointly with one L., who is still alive ; and that the plaintiff" was and is indebted to the defendant and L., in a large sum ; out of which said sum so due and owing by the plain- tiff to the defendant and the said L. as aforesaid, the defendant and the said L. offer to set-off :— Held, good on special demurrer. Stack- wood V. Dunn, 12 Law J., Q. B. 3. Plea to the whole declaration and demurrer to one count.'] A defen- dant having obtained an order to plead several matters, pleaded a plea to the whole declaration, and delivered also a demurrer to one count, whereupon the plaintiff signed judgment as for want of a plea. The court refused to set aside the judgment, except on the terms of the defendant's striking out the demurrer, and paying the costs of his defective pleading. Baily v. Baker, 9 Mee. & W. 769. Inconsistent pleas allowed if amounting to a substantial defence.'] On a motion to strike out pleas as inconsistent : — Per Cur. The rule H. T. 4 "Will. 4, distinctly says, that several pleas shall be allowed, if distinct grounds of answer or defence are intended to be established in respect of each ; and that is the case here. The word " inconsistent" was studiously kept out of the rules, for the subject was discussed, and it was felt that there might be cases in which pleas might be inconsistent with each other, and sustain substantially different defences. The object had in view was to prevent the same defence being pleaded in different forms. Duerr v. Triebuer, 3 Dowl. 133 ; 1 Bing. N. S. 266; and Wilkinson v. Small, 3 Dowl. 564, B. C. Pleas allowed by judge's order cannot be struck out.] The court has no power under the" Reg. Gen. H. T. 4 Will. 4, s. 6, to strike out pleas that have been allowed by a judge. The proper course is, to move to rescind the judge's order. Turquand and another v. Hawtrey and another, 11 Law J., Ex. 294. Counsel's signature to pleas.] A plea of plene administravit need not in the Exchequer or the Queen's Bench be signed. Reed v. Spurr, 5 Dowl. 330 ; 2 Mee. & W. 7&. Nor a plea of nul tiel record in the Common Pleas. Hubert v. Lord Weymouth. 2 H. Bl. 816. A plea of the statute of limitations, although not concluding with a verification, must be signed by counsel. Roberts v. Howard, 9 Mee. 6 \V. 838 ; 1 Dowl. N. S. 667. A plea of the statute of limitations requires to be signed; but although a nullity if unsigned, judgment cannot be signed until the time for pleading has expired. Maclier v. Billing, 1 C. M. & R. 577; 4 Law J., Ex. 16 ; 4 Tyrw. 812. All special pleas and subsequent proceedings which conclude with a verification must in the King's Bench be signed by a barrister, except the pleas of plene administravit, comperuit ad diem, nul tiel record, and son assault demesne, or liberum tenementum, and in the Common Pleas, except comperuit ad diem, solvit ad diem, and nul tiel record ; but it is now a rule that " all pleadings which conclude to the country need not be signed by counsel." Rule H. T. 2 Will. 4. PLEADING. 237 And by Rule H. T. 4 Will. 4, " To a joinder in demurrer no signature of counsel shall be necessary." A plea improperly concluding to the country requires counsel's signa- ture.] To a declaration, containing a count on a bill of exchange, and a count on an account stated, the defendant pleaded to the first count a plea introducing new matter, but concluding to the country, instead of with a verification ; and to the second count, a plea of the general issue; the pleas were not signed by counsel: — Held, first, that the plaintiff was at liberty to sign judgment upon the whole record ; for that the Reg. Gen. H. T. 2 Will. 4, s. 107, in providing that no pleading which concludes to the country need be signed by counsel, means which properly concludes to the country ; secondly, that the plaintiff was not bound to take the objection by demurrer ; and thirdly, that the two pleas formed but one whole, and that the judgment on the whole record was therefore correct. Stevens v. Angell, 1 Dowl. & L. 150, Q. B, Pleas delivered without counsel's signature a nullity, and judgment may be signed.'] Where a defendant pleaded the general issue to the whole declaration, and to part thereof a special [ilea, concluding with a veri- fication, and delivered them without counsel's signature : — Held, that the plaintiff might treat the whole pleading as a nullity, and sign judgment as for want of a plea. Shield v. Quick, 10 Law J., Ex. 270 ; 8 Mee. & W. 289. Counsel's signature on the draft pleas not the copy delivered.'] The plaintiff signed judgment for want of a plea. The question was, whether the copy of the signature of counsel, placed on the draft, was a suflficient signature, according to the practice of the court. The draft had been signed by the counsel himself, and copied on the plea delivered : — -Held, that counsel need not sign the plea delivered. Sal- ter V. Pomford, 8 Dowl. 435, Q. B. Upon consulting the judges of the Exchequer, it appeared to the judges to be a convenient rule to lay down, that it is sufficient for the counsel to sign the draft. Counsel's name in issue delivered.] The name of the counsel sign- ing the pleas need not be inserted in the issue delivered. Jefferies v. Yablonski, 10 Jur. 438, C. P. Pleading after amendment of declaration.] On the amendment of the declaration after plea, the defendant has no right to plead de novo, unless it forms part of the judge's order. Collins v. Aaron, 5 Scott, 595, C. P. The defendant having pleaded, an amendment of the declaration was ordered with liberty to plead de novo. The court held, that, if the defendant did not plead de novo, the former pleas should stand, if applicable to the amended declaration. Fagg v. Borsley, 1 C. & M. 770 ; 2 Dowl. 107 ; 3 Tyrw. 905. Where the plaintiff obtains an order to amend his declaration, to which the defendant has demurred, and the latter at the same time 238 PLEADING. obtains an order for lime to plead, that time must be calculated from the time that the plaiiititt" amends, and not from the date of the order for time, althougli the latter order does not refer to the former. Davies v. Stanley, S Dowl. 433, B. C. If a plaintiff takes out a summons to amend the declaration, the defendant has a rijiht to ])resume it will he followed up by a peremp- tory summons, and therefore it will operate as a stay of proceedings for one day ; consequently, where the time for pleading was out on the day on which the peremptory summons could have been made returnable, a judgment signed for want of a plea on the next day was held irregular. Hodgson v. Caleij, 8 Dowl. 318, B. C. Pleading to an amended declaration after demurrer.'] Where, after demurrer, the plaintiif amends his declaration and pays costs, the demurrer is at an end, and the defendant has two days' time to j)lead de novo to the amended declaration ; but where a declaration is amended after plea, the defendant cannot in this court, plead de novo, without an order for that purpose. Smith v. Hearne, 1 Dowl. & L. 992, Ex. ; 12 Mee. & W. 715. A plea dated before delivery is not a nullity.'] The time for pleading expired on the 1st November. On the morning of the 2nd, before the opening of the office, the defendant's attorney delivered a plea dated the 1st. Upon this, the plaintiif signed judgment: — Per Cur. All writs are required to bear date on the day when they issued, but if they are tested on a different day they are treated as irregular only, and not as void. Here the plea is right on the face of it, and the wrong date is in the nature of a mistake. Hodson v. Pamel, 4 Mee. & W. 373 ; 7 Dowl. 208. A plea having been demurred to, because it was dated 1832, instead of 1833, the court ordered the demurrer to be set aside with costs. Neal V. Richardson, 2 Dowl. 89, Ex. A misnomer in a plea does not make it a nullity.] On a motion to set aside a judgment : — The court held, that a misnomer as to the defendant's Christian name, in his plea, is not a ground for treating it as a nulhty, and that the plaintiff had no right to sign judgment as for want of a plea. Anon. 7 Dowl. 511. Conclusion of pleas.] A plea must still conclude with a verification, or to the country, notwithstanding the rules H.T. 4 Will 4. Snow v. Stevens, 1 C. M. & R. 26 ; 2 Dowl. 664. Pleas need not conclude with a verification unless they contain affirmative matter; therefore, a plea of the statute of limitations, with- out a verification, is good on special demurrer. Bodenham v. Hill, 7 Mee. & W. 274 ; 8 Dowl. 862. An informal conclusion of a plea is no ground for arresting the judgment, or for a repleader, if there has been an issue to try ; the objection can only be taken advantage of on special demurrer. Smith V. 'Smith, 5 Dowl. 84, Ex. A plea of ne unques executor may conclude to the country. Wood V. Kerry, 3 Dowl. & L. 642 ; 15 Law J., C. P. 122. PLEADING. 239 Dates of the pleadings in the issue.'} The issue must state the dates of the pleadings but need not the form of action. Ball v. Hamlet, 1 C. M. & R. 575 ; 3 Dowl. 188. The rule as to the date of the pleadings does not apply to a mere added similiter. Shaclel v. Ranger, 3 Mee. & W. 409- An issue may be amended, if the teste and return of the writ be left in blank. Watts v. Ball, 8 Uowl. 589 ; 1 Scott, N. S. 173. The omission to transcribe into the issue delivered, the dates of the pleadings, constitutes a variance, of which the defendant is entitled to avail himself after trial, and the roll is made up, although the dates appear in the roll. Worthington v. Wigley, 5 Dowl. 209, C. P. In the issue, the date of the writ of summons was wrongly stated ; the word defendant was used instead of defendants, and the award of venire was to the then sherifi": — Held, that these errors were no ground for setting aside the issue, but that the proper course was to apply to a judge at chambers to amend it, at the plaintiff's costs. Ikin v. Plevin, 5 Dowl. 594, Ex. Conclusion of issite.l Where the issue contained an '" &c.," after the replication, and no similiter was added, but it was properly added on the Nisi Prius record : — -Held, that there was suflBcient to justify the presumption of a perfect record, or that the party would make a perfect one, and a rule for arresting the judgment was dis- charged. Brook y. Finch, 6 Dowl. 313. "Where a replication traversed the facts contained in the plea, and concluded to the country, but without an " &c.," and no similiter was added : — Held, that the omission might be considered as a mis- prision of the clerk and amendable after verdict, judgment, and writ of error brought. Siboni v. Kirkman, 3 Mee. & W. 46 ; 6 Dowl. 98. Plea set aside on an affidavit of its falsehood.'] The defendant, to an action against him as maker of a promissory note, pleaded want of consideration, and an agreement, that if, at the end of a month from the date of the note, he should not be able to pay it, he should not be compelled to do so, but should be at liberty to renew it; and then averred, that he was unable to pay it, but was ready and willing to renew it. The court set aside this plea on an affidavit of its falsehood, which was not contradicted by the defendant. Mitford V. Finden, 10 Law J., Ex. 473; 8 Mee. & W. 511. Pleading an insufficient plea.] The mere fact of a plea being clearly insufficient in point of law, is not a ground for signing judgment as for want of a plea. Cowperv. Jones, 4 Dowl. 591. Demand of plea before signing judgment.] "Where a plea is a nullity, the plaintiff must nevertheless demand a plea before he signs judgment, and cannot treat it as a waiver of such demand. Hough v. Bo7id, 1 Mee. & W. 314. Where the plaintiff has entered an appearance under the statute he may sign judgment, without demanding a plea. Willet v. Wilson, 2 C. & J. 356. The dehvery of a plea after nine o'clock in the evening, does not entitle the plaintiff to sign judgment for want of a plea, without 240 PLEADING. returning the plea, or giving notice of the objection to the time of dehvery. Horsley v. Purdon, 3 Law J., Ex. C5 ; 2 Dowl, 228. Date of similiter to pleadings.^ A common similiter, whether de- livered to a party on his own behalf, or added for him by the other, is not a pleading within the rule of H. T. 4 Will. 4, and does not re- quire a date. Edden v. Ward, 9 Law J., Q. B. 323 ; S Dowl. 725. Semble, that where a party adds the similiter, forming part of his own pleadings, it is a pleading within rule H. T. 4 Will. 4, s. 1, and must bear a date, or it may be set aside for irregularity. Such irregu- larity is not waived by the party to whom the issue so made up is delivered, omitting to take that objection, on attending a summons to show cause why the action should not be tried before the sheriff. Mid- dleton V. Woods, 6 Mee. & W. 136 ; 8 Dowl. 1/0, Similiter added at the trial.'] When a record is taken down to trial without any issue having been joined by omission to add the similiter, the defect may be cured by adding it at the trial. If the jury have been sworn before the defect is found out, they should be re-sworn after the similiter has been added. Dyson v. Warris, 1 M. & R. 474. Similiter added after trial, where it was omitted hy mistahe.'] The record may be amended by adding a similiter to a replication, where the error can be presumed to be the misprision of the clerk, even after verdict, judgment, and a writ of error brought upon the judgment, assigning as one cause of error, the want of a similiter, Siboni v. Kirk- man, 3 Mee, & W. 46 ; 7 Law J., Ex, 3 ; 6 Dowl. 98, Plea of judgment recovered, what is.] To an action of assumpsit for money lent, the defendant pleaded, that in an action in which the now defendant was plaintiff, and the now plaintiff' was defendant, the now plaintiff set off the same debt for which the present action was brought, and in that action the now defendant obtained a verdict : — Held, that this was not a plea of judgment recovered, within the meaning of the rule of H. T. 4 Will. 4, r. 8, and that the plaintifi' could not sign judg- ment as for want of a plea. Brokenshir v. Monger, 9 Mee. & W. 111. Pleading auter action pendent.] To an action of assum-.^it for work done, a plea that another action is pending for the same cause against a third party is a bad plea. Henry v. Goldney, 15 Lav/ J., Ex. 298 ; 10 Jur. 439. The plaintiff issued two writs, one out of the Court of Common Pleas, which was never served, the other out of the Exchequer, on which he proceeded to declare. The defendant pleaded to the action in the Exchequer, another action ])ending for the same cause in the Court of Common Pleas. The ])laintiff replied nul tiel record, and served the defendant with a rule to produce. The defendant made up a roll from the praecipe on the file of the Court of Common Pleas : — ■ The court ordered it to be cancelled with costs. Kirby v, Siggers, 4 M, & Sc, 481; 2 Dowl, 659. Where payment is pleaded particulars with dates not granted.] There is no such analogy between a plea of set-off and of payment, as will PLEADING. 241 lead the court to require the defendant, who has pleaded payment, to give particulars of the sums paid, and the dates when they were paid. Nor will the court compel such particulars to be furnished, merely on an affidavit by the plaintift'that he cannot safely proceed to trial unless they are delivered. Phipps and another v. Lothian, 9 Law J., Ex. 88. Time to reply — replying issuably.'] It is neither usual nor reason- able, on granting a plaintiff time to reply, to impose on him the terms of replying issuably. Cnitchley v. London and Birmingham Railway, 2 Dowl. & L. 102, Q. B. Replication de injuria to action in debt.'] The replication de in- juria is apphcable to debt as well as assumpsit. To debt by payee against the maker of a promissory note, the defendant pleaded that he was induced to make, and did make the note, by means of the fraud, covin, and misrepresentation of the plaintitF: — Held, that de injuria was a good repUcation. Cooper v. Garbett, 1 Dowl. & L. 969, Lx. Amendment of replication.] After replying damages ultra, to a plea of payment, the plaintiff may amend and accept the money in satisfac- tion, on payment of costs. Kelly v. Flint, 5 Dowl. 293, Ex. Replication concluding ivith an " 4*c." no similiter.] It is no objec- tion to a verdict that no simihter has been added, if there is an " &c." at the end of the rephcation. Handford v. Handford, 6 Dowl. 473. Replication to a plea of set-off.] To a plea of set-off for 400Z., alleging in the usual form that such sum exceeded the damages sus- tained by the plaintiff; the latter replied, as to 234/. parcel, &c., the statute of limitations, and as to the residue of the 400Z. that he was not indebted modo et forma, concluding with a prayer of judgment : — Semble, that the replication was bad ; also that, in strictness, a plea of set-off should allege that the defendant's claim equals, not exceeds, that of the plaintiff. Fairthorne v. Donald, 2 Dowl. & L. 675, Ex. Rejoining gratis.] The terra, " rejoining gratis," means rejoining without a rule for that purpose ; and, therefore, where a defendant is under those terms, he has still four days from the delivery of the re- plication in which to rejoin ; the only effect of that term being to dis- pense with the necessity of a rule to rejoin. Adkins v. Anderson, 10 Mee. & W. 12 ; 1 DowL N. S. 877. A twenty-four hours' demand of a rejoinder, however, is still neces- sary where the rule H. T. 2 Will. 4, does not apply; and being under terms to rejoin gratis does not dispense with the demand. Steaton v. Skeay, 3 Dowl. 537, B. C. A plaintiff having time to reply cannot of terward object that a plea is not is.'iuable.] Defendant being under terms to plead issuably, deli- vered with his pleas a rule to reply, and the plaintiff obtained a week's time to reply ; at the end of which, instead of replying, he signed judgment, on the ground that one of the pleas was not issuable : — Held, that the plaintiff had waived the objection to the plea by obtaining time to reply. Stead v. Carey, 2 Dowl. & L. 270, C. P. M 242 PLEADING. Where the defendant refuses to rejoin plaintiff may sign judgment.'^ "When the plaintiff delivers the issue, adding the similiter for the defendant, and the defendant gives notice that he has struck out the similiter, but does not deliver any rejoinder or demurrer within the four days limited for that purpose ; the proper course for the plaintiif to pursue is to sign judgment for want of a rejoinder. Twycross v. King, 2 Dowl. & L., 534 Q. B. Rule for striking out pleas, form of] A rule for striking out pleas was drawn up without reading the declaration, or its being made an exhibit. The court discharged it. South Eastern Railway Company V. Short, 9 Law J., Q. B. 28; 3 P. & D. 110. Abandonment of plea demurred ^o.] A declaration in debt by a joint-stock compan)', dated the 29th March, stated that A. B., the secretary for the time being of a certain company, called, &c., com- plains of C. D., &c., who have been summoned to answer the said plaintiff, as such secretary as aforesaid, by virtue of a writ issued on the 2nd day of March, &c. Plea, amongst others, a release by the said company of the said several causes of action, and special demurrer thereto. Rejoinder, that inasmuch as the defendants cannot deny that the said last plea is insufficient in law, they freely here in court relinquish the same, and abandon all verification thereof; therefore, let no regard whatever be had to the said plea. Issues having been joined on the other pleas, and the plaintiff having recovered a verdict, the defendants brought a writ of error, on the ground, first, that it did not appear that the plaintifi" was secretary at the time of action brought ; secondly, that the defendants were not at liberty to abandon their plea : — Held, on motion by the plaintiff to quash the writ of error as frivolous, or to issue execution notwithstanding the writ ; first, that it sufficiently appeared that the plaintiff was secretary at the commence- ment of the suit ; secondly, that the writ of error was not frivolous. Quaere, whether the defendants were at liberty to abandon the plea demurred to. M'Intyre v. Miller and others, 14 Law J., Ex. 180. A special plea demurred to cannot be referred to on the trial.^ Where a special plea has been demurred to, the defendant's counsel has no right at the trial to allude to the statement in it in his address to the jury. Ingram v. Lawson, 9 C. & P. 326. — Maule, J. Time for making application to amend pleadings.] An application to amend the pleadings does not fall within the rule, which requires par- ties complaining of an irregularity to apply to the court promptly. Welsh V. Hall, 11 Law J., Ex. 57 ; 9 Mee. & W. 14. Repleader.] The rule that a repleader is never awarded in favour of the party who made the first fault, applies only where the issue is found against that party. Gordon v. Ellis, 7 M. & G. 607. Repleader awarded on motion for judgment non obstante veredicto.] In debt on award, the plea, not confessing the action, raised an imma- terial issue, which the jury found for the defendant. The court held. PLEADING. 243 that the proper course was to award a repleader, and not gire judgment non obstante veredicto. So, where there are several pleas and issues taken, but the action is confessed in none, if one be immaterial the court may award a repleader. Plummer v. Lee, 5 Dowl. 755 ; 2 Mee. &W. 495. Neither party is entitled to costs on a repleader. lb. Signing judgment for want of a plea,'] Where a declaration was delivered on the 9th, indorsed to plead in four days, and plea de- manded on the same day, and judgment signed for want of a plea at one o'clock on the 14th : — Held, irregular. Blundell v. Hansom, 2 Mee. & W. 243 ; 5 Dowl. 457, over-ruling Kemp v. Fyson, 3 Dowl. 265, see infra. Where a declaration was filed on the 24th December, with notice to plead in four days, and judgment was signed on the 29th : — Held, irregular. Wheeler v. Green, 7 Dowl. 194, Ex. Where a declaration was delivered on the 4th of August, with notice to plead in four days : — Held, that judgment could not be signed for want of a plea until the afternoon of the 9th. Kemp v. Fyson, 3 Dowl. 265, Ex. An order for seven days' time to plead was obtained on May 15th. On the 22nd, pleas were deliv ered, but irregtdar in several respects, and on the evening of that day the plaintiff signed judgment as for want of a plea : the court set aside the judgment as having been signed too early. Pepperell v. Burrell, 1 C. M. & R. 372 ; 2 Dowl. 674. Where the declaration was delivered on the 7th, to plead in four days, and on the ]Oth an order for particulars was obtained, which were delivered on the 13th: — Held, that judgment for want of a plea signed at ten o'clock on the loth was regular. Tate v. Bodfeld, 3 Dowl. 218, Ex. Where a plea was in fact delivered before judgment signed, and the plaintiff's attorney afterwards, with knowledge of that having been done, signed judgment: — The court held the judgment irregular, and set it aside with costs to be paid by the attorney. Ampthill v. SempU, 2 C. & J. 358; 2 Tyrw. 312. Where the judgment was signed in term for want of a plea, where the plea was delivered before eleven o'clock of the day after that on which the time for pleading expired : — Held, irregular. Leigh v. Bender, 4 Dowl. 201, Ex. A plaintiff has no right to sign judgment for want of a plea before the time for pleading is out, although a bad plea may have been de- livered. Dakins v. Wagner, 3 Dowl. 535, B. C. ; Nolleken v. Severn, 2 C. & J. 333 ; Smith v. Rathbone, 5 Dowl. 401. Where after obtaining a week's further time to plead, the defendant took out several summonses for further time, tlie last returnable on the day after the week's time expired, but no order taken on either : — Held, that the plaintiff was entitled to sign judgment on that day. Bass V. Cooper, 2 Mee. & W. 310. To a declaration on a bill of exchange, and on an account stated, the defendant pleaded non assumpsit, whereupon the plaintiff' signed judgment as for want of a plea : — Held, that he was not justified in signing judgment, the proper course being to demur; and the court refused to amend such judgment by confining it to the issue raised ^244 PLEADING — Puis darrein continuance. on the first count of the declaration. Eddison v. Pic/ram, 16 Law J., Ex. 33. The defendant pleaded non assumpsit in debt. The court held, that beinfj a nullity it was not waived by the plaititift' afterwards calling for the particulars of a notice of set-oft", which formed no part of the record ; and the court refused to set aside the judgment signed for want of a plea, upon a mere aftidavit of merits. Ford v. Barnard, 6 Bing. 53.5. Where the defendant pleads nil debet as to part, and a tender as to the residue of the ])laintift''s demand, but omits to pay the money tendered into court, the plaintiff cannot sign judgment on the entire demand for want of a plea, but only for the residue. Chapman v. Hicks, 2 C. & M. 633; 3 Law J., Ex. 219. PLEADING — Puis darrein continuance. Plea of puis darrein continuance. 1 A plea of puis darrein continu- ance held to be independent of a judge's order to rejoin issuably. Bryant v. Perry, 5 Bing. 414 ; 2 M."& P. 760. If one of two defendants plead a plea of bankruptcy jiuis darrein continuance, the plaintiff cannot, at Nisi Prius, confess this plea to be true, and go on with the case as to the other defendant. Pascall V. Horsley, 3 C. & P. 372. If a plea pleaded puis darrein continuance, good in form, be verified by affidavit, and there be also an affidavit under the rule H. T., 4 "Will. 4, s. 2, the judge at Nisi Prius will receive it, although there may be reasons to believe that it is pleaded for delay. Ludlow Cor- poration V. Tyler, 7 C. & P. 537. On demurrer to a plea puis darrein continuance,, there must be a joinder before the cause can be tried. Thompson v. Pennal, 2 B. & Ad. 968. Plea of puis darrein continuance after jury sworn.'] A witness for the plaintiffs having been objected to as incompetent, on the ground of his being a co-contractor with the defendants, a release was ten- dered to him, whereupon the defendants pleaded the release puis darrein continuance, as a discharge of the debt. The witness, at a subsequent period, cancelled the release by tearing off the seal, and the plaintiffs then replied non est factum, to which the defendants rejoined that the deed "is the deed of the plaintiffs." The defen- dants having been unable, at a subsequent trial, to produce the deed, or to give secondary evidence of its contents, owing to a mistake as to the party in whose possession it was, and the jury having accord- ingly found for the plaintiffs, the court granted a new trial, on the ground of surprise, although it was objected by the plaintiffs, that the jury, being sworn to try the issue according to its terms, would be bound to find it for the plaintiffs, since there was no valid deed in existence at the time of issue joined. Todd and another v. Emley and another, 12 Law J., Ex. 142. Delivery of plea of puis darrein continuance.] A plea of puis darrein continuance cannot be delivered between the parties, after the PLEADING— P^ea in abatement. 245- sittings at Nisi Prius have commenced, but must be put in at the trial. Semble, if the matter pleaded arose more than eight days before the trial, the judge will exercise his power to allow the plea. Paye v. Shenstone, 10 Jur. 1009, B. C— Patteson, J.; S. C. Payne v. Shen- ston, 16 Law J., Q. B. 61. On the 14th January, the 13th havinor been Sunday, the defendant pleaded puis darrein continuance, a judgment recovered on the 5th January: — Semble, that the plea was delivered in time, Rule 8 of H. T. 2 Will. 4, having operated, under those circumstances, to ex- tend the eight days to nine, on account of the 13th faUing on a Sunday. Dudden v. Triquet, 4 Mee. & W. 676. After plea of puis darrein continuance plaintiff may discontinue. 1 Where a defendant pleads a plea, puis darrein continuance, he cannot compel the plaintiff to proceed with the suit, but the latter is at liberty to discontinue without costs. Wollen v. Smith, S Law J., Q. B. 1 22. Motion to set aside plea of puis darrein continuance.'] The court will not set aside a plea of a release by one of several co-plaintiffs, unless it is clearly shown to have been made in fraud of the other plaintiffs, or unless the releasor be a mere nominal party to the action, having no interest whatever in the subject-matter of it. Raivsthorne and others v. Gandell and another, 15 ^lee. & W. 304. Plea puis darrein continuance — costs if defendant succeed.'] Where the defendant pleads pviis darrein continuance, and he succeeds in the - action, he is not entitled to any costs incurred previous to the plea.- Lyttleton v. Cross, 4 B. & C. 117. PLEADING — Plea in abatement. Plea in abatement, sufficient description of place of residence.] The word " residence" in the 3 & 4 Will. 4, c. 42, s. 8, which requires that pleas in abatement for the non joinder of persons who ought to have been made defendants, shall be accompanied by an affidavit stating the place of residence of such persons with convenient certainty, means the home or domicile of the parties. And therefore, where such an affidavit stated a party to be resident at a certain place which was really his home, but he was not actually there, having gone abroad for a short time : — Held, that the statute was complied with. Lambe V. Smythe, 10 Jur. 394, Ex. ; 15 Law J., Ex. 287; 3 Dowl. & L. 712 ; 15 Mee. & W. 433. Plea in abatement— particulars of residences of persons named.] If the affidavit, verifying a plea in abatement professes to give the par- ticulars of the residences of the persons named therein, and in fact misdescribes them, the defendant is bound by such description, and the plea will be set aside, although the misdescription occurred merely by mistake, or was such that the proper residence could have been easily ascertained. JSewton andothers v. Stewart, 15 Law J., Q. B. 384. 24G PLEADING— P/e« in abatement. Plea in abatement, if a nullity.'] If a plea in abatement be a nullity, no act of the plaintifl', apparently acquiescing in it, will be construed into a recognition of it. Garrutt v. Hooper, 1 Dowl. 28. Plea in abatement, for non-joinder.] A plea in abatement, for the non-joinder of a co-contractor, which prays judgment of the declara- tion, and that the same may be quashed, is informal ; it ought to pray judgment of the writ and declaration. Davies v. Thompson, 14 Mee. 6 W. 161 ; 3 Dowl. & L. 49. Coverture not a plea within the statute 3 4" 4 Will. 4, c. 42, s. 8.] A plea in abatement of coverture of the defendant is not within the statute 3 & 4 Will. 4, c. 42, s. 8. Jones v. Smith, 3 Mee. & W, 526 ; 7 Law J., Ex. 143; 6 Dowl. 557. A plea in abatement of coverture — an affidavit necessary.] A plea in abatement, to an action of debt, of the defendant's coverture, is a dilatory plea requiring an affidavit of verification under the stat. 4 Anne, c. 16, s. 11 : and if there be no such affidavit, the plaintiff is entitled to sign judgment as for want of a plea, although part of the cause of action accrued after the coverture. Lovell v. Walker, 9 Mee. & W. 299. Coverture of plaintiff, how pleadable.] The coverture of the plaintiff cannot be pleaded in bar to an action of covenant on a deed made between the defendant and the plaintiff; it is matter for a plea in abatement only. Bendixv. Wakeman, 12 Mee. & W. 9/. Pendency of another action cannot be pleaded in abatement.] In an action against one of several joint contractors, the defendant cannot plead in abatement, the pendency of another action for the same cause against another of the joint contractors, and in which he was not him- self a defendant. Henry v. Goldney, 10 Jur. 439; 15 Law J., Ex. 298. Time for delivery of plea in abatement.] The four days within which the pleas must be delivered are calculated exclusively of the first and inclusively of the last day. Ryland v. Wormald, 2 Mee. & W. 393; 5 Dowl. 581. Under special circumstances the time has been extended. Sowter V. Dunston, 1 Mee. & W. 508. Affidavit of verification of plea in abatement.] An affidavit of verifi- cation, when it refers to the declaration, cannot be sworn before the latter is delivered. Bower v. Kemp, 1 C. & J. 287; 1 Dowl. 281 ; Westerdale v. Kemp, 1 Tyrw. 263. The Stat. 4 & 5 Anne, c. 16, s. 16, provides, that an affidavit verify- ing the truth of the plea, shall be annexed to all pleas in abatement. The act only applies where the matter of the plea is dehors the record. Grey v. Gednejf, 3 B. & B. 395. If the affidavit cannot be obtained in time to deliver with the plea, application should be made to a judge for an extension of time. Johnson v. Popplewell, 2 C. & J. 544. PLEADING— P?ea in abatement. 247 The affidavit may be made by the defendant, or any other person cognizant of the facts alleged. Long v. Comber, 4 East, 348. The affidavit must strictly agree with the plea in describing the parties. Poole v. Pembrey, 1 Dowl. 693. An affidavit verifying a plea of coverture need not state the resi- dence of the husband to be within the jurisdiction, as such plea is not within 3 & 4 Will. 4, c. 42, s. 8. Jones v. Smith, 3 Mee. & W. 526 ; 6 Dowl, 557. Plea in abatement as to j)art, and in bar as to residue.'} The defen- dant may plead in abatement as to part, and in bar, to the residue : a new assignment in such cases is unnecessary. Hill v. White, 8 Dowl. 13 ; 9 Law J., C. P. 3 ; 6 Bing. N. C. 23. Plea in abatement by one of several defendants.'] A plea in abate- ment, applicable only to one defendant, praying judgment of the writ generally, and that it may be quashed, is bad. Wade v. Stiff, 1 M. & P. 26. Costs on plea in abatement^ On setting aside a plea in abatement for irregularity, no costs are allowed. Poole v. Pembrey, 1 Dowl. 693. An amendment after a plea in abatement may be with or without pajTnent of costs, at the discretion of the court. Wall v. Lyon, 1 Dowl. 714; 9 Bing. 411. Plea of privilege by an attorney.'] A plea of privilege by an attorney, is a plea in abatement requiring an affidavit. Davidson v. Chilman, 1 Bing. N. S. 297; 1 Scott, 177- A plea of privilege as an attorney need not aver that he is not an attorney of the court in which he is sued. Percival v. Cooke, 5 Mee. & W. 293. Nisi Prius record after plea in abatement and judgment.] It is not requisite to set out in the issue and Nisi Prius record a previous plea in abatement, and judgment of respondeat ouster therein. Pepper v. Whalley, 5 N. & M. 437. Plea of release.] To set aside a plea of release by parties not joined, fraud must be estabhshed. Herbert v. Pigott, 2 C. & M. 384 ; 2 Dowl. 392. A release, obtained fraudulently from one of several plaintiffs will, when pleaded, be set aside. Barker v. Richardson, 1 Y. & J. 362. Where one of several plaintiffs, assignees of a bank, releases the cause of action, and the release is pleaded, the court will set aside the plea, suspicion being thrown on the defendant's conduct in the trans- action, the co-plaintiffs indemnifying the plaintiff, who had given the release, against costs. Johnson v. Holdsworth, 4 Dowl. 63, B. C. Where the affidavits in support of an application to set aside a release, given by a co-plaintiff, do not clearly show fraud, the court will not interfere summarily to set it aside. Crook v. Stephens, 5 Bing. N. S. 638; 7 Scott, 848. The court will not set aside a plea of release given by one of several 248 TRISONER. plaintiffs, unless a clear case of fraud is made out between the releasor and the defendant : fraud upon the releasor is not a ground for setting aside the plea, since that may be rejilied. Wild v. Williams, 6 Mee. & W. 490. PRISONER. Service of notice on plaintiff, by a prisoner for his discJiai-fje.'] Ser- vice upon one of several plaintiffs of the defendant's intention to apply for his discharge under 48 Geo. 3, c. 123, s. 1, is sufficient for a rule absolute in the first instance. Harris v. Turtle, 8 Mee, & W. 258. To discharge a prisoner, irregularly arrested on attachment.'] A prisoner, who has been arrested irregularly on an attachment must apply for his discharge without delay. Regina v. Burgess, 3 N. & P. 366. Discharge of a bankrupt on productiori of his certificate.'] Where a judge at chambers, upon an application made to him under sec. 42 of the Stat. 5 & 6 Vict. 122, has refused to discharge a bankrupt from custody on his producing his certificate, this court has no jurisdiction to entertain a similar application. Wearing v. Smith, 10 Jur. 924, Q. B. Proceedings against a defendant arrested on capias.] The proceed- ings by capias in pursuance of a judge's order, under 1 & 2 Vic. c. 110, are collateral to the cause; and, therefore, although defendant is arrested, and continues in custody, plaintiff may enter an appear- ance for him, file his declaration, and serve notice thereof, in the same manner as if no arrest had taken place. JSeal v. Snoulton, 3 Dowl. & L. 442 ; 2 C. B. 322. A prisoner may move for his discharge under 48 Geo. 3, c. 123, although he has applied to the Insolvent Court.] A prisoner in custody for twelve calendar months for a debt under 20^. is entitled to his discharge under 48 Geo. 3, c. 123, notwithstanding his having applied for relief, under the 1 & 2 Vic. c. 110, to the Insolvent Court, and the commissioner having adjudged that he should not be entitled to the benefit of that act for three years; as the operation of such an order is, not to secure the imprisonment of the applicant for that length of time, at all events, but only to prevent his obtaining for so long the benefit of the Insolvent Act. Hopkins v. Pledger, I Dowl. & L. 119, Q. B. A prisoner may renew an application for Jiis discharge.] A prisoner has a right to apply de die in diem for his discharge, and is not pre- judiced by a former application having been rm successfully made. Hal- lett and others v. Cresswell, 15 Law J., Q. B. 129, B. C. — Williams, J. Discharge of prisoner under 48 Geo. 3, c. 123, — verification of signa- ture to notice.] In moving to discharge a defendant out of custody, under 48 Geo. 3, c. 123, it is necessary to have an affidavit, verifying PRISONER. 249 the signature to the notice served on the plaintiff, of his intention to apply to the court. Randall v. Sweet and another, 10 Law J., C. P. 132. Application for discharge of prisoner after a remand by Insolvent Court.'] A prisoner remanrled by the Insolvent Debtors Court is not thereby incapacitated from applying to this court to be discharged, under the 48 Geo. 3, c. 123, s. 1. It must appear distinctly by the affidavit on which such discharge is moved, that the original debt does not exceed 201. Therefore, where the affidavit stated that the plaintiff had recovered judgment in an action brought to recover the sum of \7l. 4^., and the writ which was appended to the affidavit was indorsed to levy 23/. Ss. 4c/. ; the court would not presume that the surplus sum of 6/. 4s. 4cZ. was solely for costs. Clapperton and Wife v. Monteith, 1 Dowl. & L. 908, C. P. To discharge a married woman, sole defendant in a suit commenced he- fore her marriage.] An action was brought against the defendant, a v.-idow, in March, 1845 ; in April she married, and in May, judgment in that action was signed against her, and a ca. sa. issued, under which she was taken in execution : — Held, that she was not entitled to be discharged out of custody, although she had no separate property. Beynon v. Margaret Jones, 15 Law J., Ex. 303 ; 3 Dowl. & L. 667. To discharge a married woman, a party to a suit from custody.] On an application to discharge a defendant out of custody, on the ground that she is a married woman, the court will require the strictest negative proof from her that she has no separate property ;. where it appears from the affidavits on the other side, that there are reasons for doubting such to be the fact. Ferguson v. Clayworth and Wife, 2 Dowl. & L. 165, Q. B.; 6 Q. B. 269. Prisoner on attachment, habeas corpus to discharge^ The court, will not grant a habeas corpus to bring up the body of a party to enable him to move the court, in person, to set aside two writs of attachment, on which he is in custody. Ford v. Nassau, 11 Law J., Ex. 287. A prisoner brought up by habeas corpus — motion for his discharge.] It is not necessary to wait till the rising of the court to move the dis- charge of a prisoner out of custody, on a return to a habeas corpus, where no notice of any opposition to the motion has been given. The court will order him to be discharged forthwith. In re Howard, 2 Dowl. & L. 536, Q. B. Discharge of prisoner brought up on habeas corpus to be charged in execution.] Where a prisoner is brought up under a habeas corpus ad satisfaciendum, he is entitled to be discharged on payment of the debt and costs in the action, and cannot be detained until payment of the court fees on the writ. Dalzell v. Cullen, 12 Mee. & W. 1 ; 1 Dowl. & L. 448. Charging a prisoner in execution^ A prisoner, in custody under process of contempt of the Court of Common Pleas is liable to be M 3 250 miSONER. charged in execution upon a judgment in this court in the ordinary way. Wade v. Wood, 1 C. B. 462. Service of notice by a prisoner for his discharge, where plaintiff is dead.} The plaintiff in a suit being dead, the court allowed notice of application for the defendant's discharge under the 48 Geo. 3, c. 123, to be served on his son, who was the attorney in the action, and who refused to say who was his father's personal representative. Booth v. Steer, 1 Dowl. & L. 374, Ex. Prisoner in execution on a judgment in ejectment may apply under 48 Geo. 3, c.\23 for his discharge.'] A judgment in ejectment is a judg- ment for damages, within the statute 48 Geo. 3, c. 123. s. 1, and a prisoner who has lain in prison for twelve calendar months in execu- tion on such judgment for less than 20s. is entitled to his discharge. Doe d. Symons v. Rice, 14 Law J., Q. B. 137. A defendant in execution on an old judgment, without a sci. fa., dis- charged.] A party in execution, issued above a year and a day, on a judgment without a sci. fa. : — Held, entitled to take the objection, and not to have waived the right by delay. Mortimer v. Peggett, 4 Ad. & E. 363, note. Irregular ca. sa. — effect of subsequent detainers.] A party arrested upon a ca. sa., afterwards set aside for irregularity, cannot be dis- charged out of custody, if before the setting aside the irregular ca. sa. detainers have been lodged against him by other parties, not con- nected with the person who sued out the original writ. Wright v. Stanford, 11 Law J., Q. B. 42; Watson v. Carroll, 9 Dowl. 217, Ex. ; Robinson v. Yewens, 5 Mee. & W. 149 ; 7 Dowl. 377- A detainer against a prisoner valid, although the original arrest irre- gular.] Where a prisoner has been arrested on a Sunday, a subsequent detainer by another party, without collusion, is not vitiated by the illegality of the original arrest. In re James Ramsden, 15 Law J., Q. B. 264. The Common Pleas decided, there can be no detainer under another writ upon an illegal arrest. Barratt v. Price, 1 Dowl. 725; 9 Bing. 566; 2 M. & Sc. 634. An arrest on an irregular ca. sa. does not invalidate other writs J] On a motion to discharge the defendant out of custody, it appeared that the defendant was taken on a ca. sa. under a judgment above a year old, and not revived by sci. fa. :■ — The court held, that, although en- titled to his discharge, as to the arrest on that suit, it did not extend to invalidate other writs against him in the hands of the sheriflf, and that the detention thereon was legal ; besides, he was liable to be taken in execution on a valid ca. sa. Reynolds v. Newton, 1 Gale & D. 153 ; Plomer v. Ball, 5 Ad. & E. 823 ; and Collins v. Beaumont, 2 P. & D, 363. Motion under a writ of habeas corpus ad subjiciendum.] A prisoner who sues out a writ of habeas corpus ad subjiciendum, is not bound by the decision of any one court ; but is entitled to take the opinion of PROCHEIN AMY. 251 all, as to the propriety of his imprisonment. Ex parte v. Partington, 2 Dowl. & L. 650, Ex, A prisoner in Queen' ^ Bench under criminal process cannot he charged with civil process in the Common Pleas.'] Where the party is in the custody of the Queen's Bench under criminal process, a writ of habeas corpus ad satis, does not lie in order to charge him with civil process in the Common Pleas, even since 5 & 6 Vic. c. 22. Gibb v. King, 2 Dowl. & L. 806 ; 9 M. G. & Sc. 1. PROCHEIN AMY. Signature to petition of an infant plaintiff, for order to sue by next friend.'] The petition of an infant plaintiflF to be allowed to sue by her prochein amy, may be signed by such prochein amy on her behalf, the infant being too young to sign it herself. Eades v. Booth, 15 Law J., Q. B. 263 ; 10 Jur. 311. The authority of a father to sue as prochein amy cannot be questioned.] In an action by a father as prochein amy, for criminal conversation with his son's wife, the plaintiff having recovered, with leave reserved for the defendant to move to enter a nonsuit, and the defendant having applied for a certificate to deprive the plaintiff of costs, and no mo- tion having been made to the court for a nonsuit : — Held, on motion to set aside the proceedings for want of authority, first, that as the defendant had reason to believe, before the trial, that the action was brought without the authority of the son, he ought to have made inquiries then ; and that the application was too late ; secondly, that no authority from the son was necessary to enable the father to sue, and that the son was bound by the action. Morgan v. Thorn, 10 Law J., Ex. 125. Prochein amy, appointment of.] The father of the infant ought always, in the first instance, to be appointed prochein amy ; and if his evidence is likely to be useful at the trial, an application should be made to the court to release him, by the appointment of a proper substitute. An uncertificated bankrupt is an improper person to be appointed prochein amy ; and if such an appointment be procured it will be revoked as an imposition practised on the court. The appointment of prochein amy is in the discretion of the court; but quaere, whether poverty is, alone, a sufficient reason for removing a prochein amy or requiring security for costs. Watson v. Fraser, 10 Law J., Ex. 420. Prochein amy — security for costs ^ The court will not call on the prochein amy of an infant plaintiff to give security for costs, on the ground that the attorney has refused to disclose the residence of the prochein amy, it not being sworn that he is in insolvent circumstances. Haynes v. Carr, 11 Law J., C. P. 111. Prochein amy, notice of action by.] The prochein amy of a minor, whobringsan action in his name, is his agent under 3 & 4 Will.4, c. 52, s. 103, for the purpose of giving notice of the action. De Gondouin v. Lewis, 10 Ad. & E. 117 ; 2 P. & D. 283 ; 9 Law J., Q. B. 148. 252 RECOGNIZANCE. Respitiiuj or discharging recognizance.'] Recognizances will only be suspended from term to term, though the party prosecuting be alleged to be in America. Thomas Clark, in re, 11 Price, 730. The Court of Exchequer has jurisdiction to respite process issued in respect of fines, &c., imposed upon presentments, &c., when es- treated, but will only do so from term to term, and not further. In- hubitants of Norwich, in re, 11 Price, 7GG ; and Bennett, ex parte, 11 Price, 770. A recognizance will not be discharged without notice to the attorney- general, although the forfeiture accrued to the city of London. Morris, ex parte, 1 Mee. & W. 510. A motion to discharge a defendant from estreated recognizances under 4 Geo. 3, c. 10, must be preceded by a notice to the sohcitor of the Treasury. Tipton, ex parte, 3 Dowl. 177, Ex. In ordei- to obtain a discharge of a recognizance, there must be shown a constat of the proceedings from the clerk of the estreats office. Dunk, ex parte, 2 Tyrw. 500. The Exchequer has no authority to interfere where the recognizance has not been estreated. Rex v. Hankins, 1 M'Clel. & Y. 27. Recognizance estreated into the Exchequer — motion for discharge of the party.'] A party taken in execution on a recognizance estreated into the Exchequer, and who denies its existence, must, in order to be relieved, come in and traverse the recognizance. Ex parte Stowell, 13 Law J., Ex. 328. Scire facias on recognizance.'] A scire facias upon a recognizance for payment of costs, occasioned by a claim to goods seized in case they should be adjudged forfeited. The court held it to be imma- terial for whose benefit the recognizance was entered into ; and it was for the defendant to show the condition to have been performed. Rex V. Bulloch, 1 Mee. & W. 726 ; 1 Tyrw. & G. 99S. Recognizance toprosccute an application, for a new trial in Common Pleas at Lancaster.] On application under the statute 4 & 5 Will. 4, c. 62, s. 27, to a superior court in Westminster Hall, for a new trial in a cause in the Common Pleas at Lancaster, the recognizance, " to make and prosecute such application," is satisfied by obtaining a rule nisi, whatever afterwards becomes of the rule. Haworth v. Ormerod, 6 Ad. & E., N. S. 300 ; 13 Law J., Q. B. 265. Recognizance on certiorari estreated — costs on.] Where a recog- nizance, taken before a justice of the peace upon the removal of an indictment into the Queen's Bench, had been returned and filed, but not enrolled, the court permitted it to be estreated into the Exchequer. Upon a motion to estreat the recognizance, the affidavit stated that the side-bar rule, with the allocatur for costs thereon, had been served on the principal and bail, and the costs demanded, but it did not state that any notice of taxation had been given : — Held, that in the absence of any affidavit that such notice had not been given the court would assume the proceedings to be regular. The Queen v. Sydserff, 14 Law J., Q. B. 44. 253 RECORD. Re-sealing record on the trial being jmstponed.'] Where a cause was set down in the list of undefended causes for trial in the third sittings in term, and on the defendant's statement that it was a defended cause was postponed till the sittings after term, and the plaintiff did not re-seal the record previous to those sittings, although he did so before the day on which the cause actually came on for trial, the court set aside the verdict which he obtained, for irregularity. King v. Tress, 2 Dowl. & L. 734, Q. B. Record — discrepancy in the date of the writ and the offence charged.'] The record in an action for slander stated, that the writ issued on the 4th of June, and that the words were spoken on the 27th : — Held, that this discrepancy on the record was no ground for arresting the judgment. Steward v. Layton, 3 Dowl. 430, Ex. Removal of a cause into the Exchequer — the crown interested.] Where in trespass by subject against subject (in Common Pleas) the defendant alleging a seisin in the crown of the locus, and justifying under its command : — Held, that the crown having the right to inter- pose where its interests were concerned, the attorney-general was entitled to a rule absolute, in the first instance, to remove the cause into the office of Pleas of the Exchequer, putting the plaintift" in the same stage of forwardness in the suit as he was in the former court. Attorney -general v, Hallett, 15 Mee. & W. 97. RULES— SeraJce of. Service of rules.] Service of a rule on an attorney by leaving it with a laundress at his chambers, who stated that she was authorised to receive notices and papers for him, is insufficient. Dodd v. Drum- mond, 1 Dowl. 381. So is service on the laundress' servant. Smith v. Spicer, 2 Dowl. 231. Service of rule at the house of defendant's attorney on a servant.] Where a rule nisi had been served by leaving a copy of the rule at the house of the defendant's attorney with a female servant, who stated she was authorised to receive papers for the attorney : — Held, sufficient service of the rule, and the court made the rule absolute. Lancaster V. Castle, 8 Jur. 848, B. C— Wightman, J. Service on a manservant of the defendant's attorney at his office : — Held, insufficient. Kealeyv. Cartwright, 11 Jur. 378. Service of a rule at the late residence of defendant on his son.] A rule nisi to compute was served on the defendant's son at the late residence of the defendant ; afterwards, one K. admitted to depo- nent that he, R. received the rule from the son and gave the same to the defendant. The court held the service insufficient, but allowed the rule to be enlarged and served again at the late residence on the son and to be stuck up in the office. Short v. Arnal, MS. Exch. M. T. 1845. 254 RULES— 5ert7ee of. Service of rule on the sister of defendant's wife insufficient.'] A rule nisi to compute was served on the sister of the defendant's wife at the defendant's residence. The court held the service insufficient — that the affidavit ought to state that the person served was either a member of, or residinir with, the defendant's family. Holland v. Wright, MS. Exch. E. T. i845. Service on a female friend staying at defendant's house.'] Service of a rule to compute on a female, whom the deponent believed to be a friend staying at the defendant's house, and authorised to receive messages : — Held, insufficient. Brandon v. Edwards, 2 Dowl. N, S. 225. Service of rule at defendant's residence on a person who promised to deliver same to defendant.] An affidavit of service of a rule, stated that the deponent served " the above-named defendant with a true copy of the rule, by delivering and leaving with one H. at the defen- dant's residence, situate, &c., a true copy of the said rule, and at the same time showing the original thereof, and that the said H. promised to deliver the said copy to the defendant :" — Held, to be insufficient, as it did not show a service on any person connected with the defen- dant's residence. Taylor v. Whitworth, 9 Mee. & W. 478 ; 1 Dowl. N. S. 600. Service of rule on defendant's clerk.] The defendant's clerks said they had received service of a rule nisi, and would send it to their master, but they would not give any information as to where the master might be found : — Held, sufficient service. Smith v. Jones, 6 Jur. 1090, C. P. Service of a rule at the defendant's residence.] Service on the mother of the defendant at his residence : — Held, sufficient. Warren V. Smith, 2 Dowl. 216, Ex. Or on a female in the habit of receiving messages for the defendant at his dwelling house. Edwards v. Napier, 9 Dowl. 177, Q- B. Or on a female who is sworn to be part of the defendant's family, and who promises to give the copy rule to the defendant. Weeden v. Lipman, 9 Dowl. Ill, B. C. Service on the defendant's landlady is not sufficient. Gardner v. Green, 3 Dowl. 343, B. C. Service of a rule to compute.] Service of a rule to compute upon a clerk at the defendant's counting house : — Held insufficient. War- wick V. Bacon, 8 Scott, N. S. 667 ; 2 Dowl. & L. 596. And on defendant's warehousman, at his warehouse in the city, in- sufficient. Ibofson V. Phelps, 9 Law J., Ex. 232 ; 6 Mee. & W. 626., Service of a rule to compute upon a servant at a counting house is insufficient. Rowland v. Vizettally and others, 1 Dowl. & L. 767, C.P. A rule nisi to compute, served at York on the day cause was to be shown, is insufficient to authorize making the rule absolute, although ten days have elapsed since the service. Farrell v. Dale, 2 Dowl. 15, Ex. Where the rule and copy had been sentby the post, and the original was a few days afterwards received back, indorsed with a receipt of nVLi:8— Service of. 255 " copy of the within rule," and signed : — Held, sufficient for making the rule absolute. Smith v. Campbell, 6 Dowl. 728. Service of rule to compute on one of several defendants sufficient.'] Service of a rule to compute principal and interest on a bill of ex- change or promissory note, upon one of several defendants, is suffi- cient, as service upon one is service upon all. Amlot v. Evans, 7 Mee. & W. 462 ; and Figgins v. Ward, 3 Law J., Ex. 135 ; 2 C. & M. 424. Service of a rule by sticking it up in the office.'] Service of a rule by sticking it up in the office will not be allowed upon an affidavit that the attorney's residence is unknown, unless it is also sworn that the party's residence is unknown. Wright v. Gardner, 3 Dowl. 657, Ex. But service of a rule to compute allowed, by sticking up in the office, and serving on the general attorney of the defendant, where the party was abroad, had no place of residence in this country and no attorney in the suit. Gibson v. Lord Ranelagh, 7 Scott, 231. Where a regular service of a rule is endeavoured to be dispensed with on the ground of absence, or otherwise, the affidavit must show what efforts have been made to serve the party before secondary ser- vice will be allowed. Mudie v. Newman, 2 Dowl. 639, Ex. Where, on account of the defendant's residence being unknown, the court gives leave to serve him in a particular manner, they will not make a prospective rule, that service of future rules, &c. may be effected in the same manner. Martin v. Colvill, 2 Dowl. 694. Leave to stick up a notice in the office must be limited to the par- ticular proceeding. Davis v. Jenner, 2 Scott, N. R. 202 ; 9 Dowl. 45. Rule left instead of served sufficient.] The affidavit of service stated that the rule nisi was " left" instead of stating that it was " served :" — Held, to be sufficient service. Bailey v. Anderson, MS. Exch. E. T. 1845 ; and Short v. Smith, 8 Dowl. 584. Description of rule in affidavit of service.] An affidavit of service must swear to the service of the " rule annexed," and not merely to the " rule in this cause." Fidlett v. Bolton, 4 Dowl. 282. Description of the party served with a rule.] An affidavit stating that service of a rule had been made upon Mr. S., " who acts as the attorney or agent of the defendant in this cause," was held sufficient. Pattrick v. Rickards, 15 Law J., Q. B. 204. Delay in the service of a rule — whether guilty of laches.] It is not sufficient to make a party guilty of laches that he has delayed for an unnecessary time to serve a rule, unless it be shown that the other party is prejudiced by the delay. Gurney v. Ourney and another, 15 Law J., Q. B. 265 ; 3 Dowl. & L. 734. Service of rule on an attorney for the payment of money.] Where it is clearly shown that an attorney keeps out of the way to avoid being served with rules for the payment of money, the court will allow service upon his clerk to be good service. The affidavit, how- ever, must specify the endeavours to effect a service, and the reasons for believing that he is in town, and avoiding service. Hinton v. Dean, 4 Dowl. 352. 256 RULES. Service of rule for payment of money — dale must be clearly stated.^ An affidavit of service of a rule for })ayment of money, alleging a service " on the day of the date hereof" no date heing stated, except by reference to the date of the jurat, is insufficient. Hughes v. Browne, 6 Man. & G. 751 ; 13 Law J., C. P. 73 ; 1 Dovvl. & L. 788. IrrequJar service of a rule, how waived^ Appearing to a rule is a waiver of service. Levi v. Buncombe, 1 C. M. & R. 737 ; 3 Dowl. 447. If a party against whom a rule is granted ohtains its enlargement, he cannot afterwards ohject that it was not personally served. Cart- wright v. Blackworth, 1 Dowl. 489. Rule granted on payment of costs — effect of 7ion-compliance.'] Where the plaintiff obtained a rule for a new trial on payment of costs, which were taxed and demanded, but not being paid within a reasonable time, a rule to show cause why the former rule should not be dis- charged was obtained imless paid on or before a stated day, which was done, the court discharged the second rule on the terms of the plaintiff paying the costs of the application. Solly v. Langford, 13 Mee. & W. 151 ; 2 Dowl. & L. 250. A rule nisi need not state the irregularity on which it was granted to set aside proceedings^ It is not necessary, in a rule nisi to set aside proceedings for irregularity, to specify the grounds of irregularity on which the party relies. Rennie v. Bruce, 2 Dowl. & L. 946 ; 9 Jur. 597, B. C. — Coleridge, J. Therefore, where it appears on the face of a writ of summons that it is directed to a defendant in a wrong county, and that on the capias the direction is left in blank, without stating sheriff or place, it is not necessary in a rule calling on the plaintiff to show cause why the de- fendant should not be discharged out of custody, to state the irregu- larity complained of; it is sufficient if it appears on affidavit. lb. A ride nisi obtained under a mistaken supposition that an affidavit had been sworn.'] Upon a statement of counsel that he had moved for a rule to set aside an award, under a mistaken supposition that an affidavit deposing to certain facts had been sworn : the court on the day after granting the rule nisi gave leave for the rule to be drawn up as upon reading such affidavit, on condition that it should be sworn on that same evening. Ferring v. Kymer, 4 Nev. & M. 477; 1 Har. & W. 20. A rule nisi obtained on a defective affidavit cannot be amended.] Where a party obtained a rule nisi upon affidavits, which were badly entitled, and discovering his mistake he applied to the court for leave to take the affidavits off the file, and amend and re-swear them; the court refused to allow such a course to be taken, on the ground that the affidavits would appear to have been svv'orn after the rule was drawn up ; and also refused to allow a fresh rule to be drawn up on amended affidavits ; but suggested a new motion upon affidavits dis- closing the circumstance of the error ; giving no opinion however upon the validity or effect of such new motion. Doed. Hill v. Tollett, 1 Dowl. & L. 121. Effect of rule with stay of proceedings.] Where a defendant RULES. 257 obtains a rule which stays the plaintiff's proceedings, he is entitled to the whole of the day on which such rule is disposed of for taking the next step. Vernon v. Hodgins, 1 Mee. & W. 151 ; 4 Dowl. 665; 1 T. & G. 427. Insufficiency of affidavits in support of a rule^ On showing cause against a rule, when an objection is taken to the insufficiency of the affidavits in support of the rule, the counsel showing cause must at once elect whether he will use his affidavits in answer to the rule or not. Freedy v. Lovell, 4 Dowl. 671- When a rule to show cause should be served.'] Where a rule to show cause on the 20th of November had not been served on the defendant till that day at Birmingham, the court, on the 25th (the last day of term), refused to make it absolute, but enlarged it till the next term. Hawkins v. Benton, 14 Law J., Q.. B. 9- Affidavits to show cause at/ainst a rule, when may be sworn.'} Affida- vits" to show cause may be sworn after the rule is due, if no time be fixed by the rule for filing them. Graham v. Beaumont, 3 Scott, 287 ; 5 Dowl. 49 ; Braine v. Hunt, 2 Dowl. 391 ; and Hicks v. Marreco, 3 Tyrw. 216. Rule for attorney to answer matters of an affidavit.] When it is sought to make a rule absolute against an attorney, requiring hira to answer the matters of an affidavit, and he does not appear, he must be called in court. In re Whicker, 5 Dowl. 715. A rule may be abandoned.'] If a party obtaining a rule does not choose to proceed on it, the other party cannot compel him. Doe d. Harcourt v. Roe, 4 Taun. 883. Description of documents mentioned in rules.] In drawing up a rule, it is not necessary to specify the particular document on which it is obtained, but it may be described as a paper writing, provided it be properly verified by affidavit. Piatt v. Hall, 2 Mee, & W. 391 ; 5 Dowl. 583. A rule for striking out counts was drawn up without reading the declaration or any affidavit. The court discharged it. Roy v. Bris- towe, 2 Mee. & W. 241 ; 5 Dowl. 452 ; 6 Law J., Ex. 79. Rule to produce documents under a commission.] The stat. 6 & 7 Vic. c. 82, s. 5, extends to a commission for the production of docu- ments from the courts of Scotland, but the rule to order the attendance of the parties, &c. is only nisi in the first instance. Kay v. Gennell, 2 Dowl. & L. 21. Rule of reference to the master — report thereon.] In general, the court will not discuss the correctness of the master's report in a matter referred to him by the court. Rex v. Morley, 4 Ad. & E. 849. The terms of a rule bindiny on the party taking it.] Where counsel obtained a rule nisi to enter a verdict for defendant, or for a new trial. 258 RULES. and defendant's attorney subsequently went to the rule office and had the rule altered, by striking out that part of it which related to a new trial, the court refused to make the rule absolute for a new trial. James v. Hall, 10 Jur. 5G9, B. C— Williams, J. Rule to compute on a covenant.'] Upon an interlocutory judgment for the plaintiff in an action on a covenant to pay to the plaintiff all such sums as should be received by the dsfendant, a sequestrator, and be at his disposition from time to time, in part or in full satisfac- tion of a certain debt due to the plaintiff, the court refused to make a rule nisi to comjmte absolute. Smith v, Nesbitt, 2 M. G. & Sc. 286 ; 15 Law J., C. P. 31 ; 3 Dowl. & L. 420. Rule to compute — production of note — variance in maker^s name.} After judgment by default against the maker of a promissory note, and reference to the master to compute principal and interest upon it, it is not necessary to produce the note before the master. Where it was produced it appeared to be signed E. B., whereas the maker's name was E. T. B. : — Held, that the variance was immaterial. Davis V. Parker, 16 Law J., C. P. 86. A rule to show cause peremptorily.'] Where a rule is drawn up to show cause peremptorily on a day named, it may be made absolute as soon as the court has gone through the bar on that day. This is, for such purpose, to be considered to be the rising of the court. Lace V. Adamson, 12 Mee. & W. 807, 8 Jur. 409, Ex. Rule, irregularity in, not waived by appearing to show cause against it.] Where the copy of a rule served upon a plaintiff is entitled in no cause, his appearance by counsel to take this objection does not operate as a waiver of the irregularity ; but the rule will be discharged with costs. Wood v. Critchfield, 2 Law J., Ex. 2 ; 1 C. & M. 71. Appearing to oppose a rule does not waive an objection to the affi- davit on which the rule was obtained. Barham v. Lee, 4Mo. & Sc. 327'. Mistake in drawing up a rule, how corrected.] Where the defect in a rule is attributable to the officer of the court, it will be amended without costs. Downing v. Jennings and another, 5 Dowl. 373. On showing cause against a rule for the payment of money pursuant to an award, rule, and allocatur, it was objected that the rule recited " a rule made in these causes," whereas that rule was made in one cause only. It appearing that this was an error of the officer, the court directed the rule to be amended instanter without costs, upon the authority of the above case, Downing v. Jennings, and the argu- ment then proceeded. Benn v. Stochdale and another, and Stockdale and another v. Beiin, MS. Exch. E. T. 1846. Where an error in the recording of proceedings arises from the mis- prision of an officer of the court, the court will allow an amendment, and will not permit the party to suffer in consequence of the mistake. Lloyd V. Nicholas, 4 Bing. N. C. 633 ; 6 Scott, 355 ; 7 Law J., C. P. 259. A rule drawn up in one term must be enlarged so as to be made abso- RULES. 259 lute in another.'] If a rule is drawn up to show cause in one term, it cannot be absolute in the next term without enlarging, but it may be revived. Smith v. Collins, 3 Dowl. 100. Several causes in the same rule.'] A rule making the same order in several causes may be moved for on a single affidavit entitled in all the causes. Barrack v. Newton, 1 Ad. & E., N. S. 525. Appealing against a rule or order.] Where it is sought to impeach a rule of court or a judge's order, the materials upon which the rule or order was obtained should be brought before the court. Needham v. Bristow, 4 Scott, N. R. 773 ; 4 Man. & G. 662. Rule to set aside a demurrer.] The rule to set aside a demurrer as frivolous must be drawn up on reading the plea, as well as subse- quent proceedings. Hamer v. Anderton, 9 Dowl. 119, B.C.; and Howorth V. Habbersby, 3 Dowl. 455, Ex. Rule for a trial at bar.] A rule was drawn up appointing a trial at bar for the 7th February, and the cause not being concluded on that day, the court held, the following morning, that their jurisdiction under the said rule had ceased, as only one day was named in the rule, and that consequently the cause stood adjourned co the first day of the following Easter term, on which day the jury being in attend- ance, the cause was called on, and the court ordered the trial to be resumed on Wednesday, the 23rd April, in that term. Attorney General v. Geo. Smith, MS. Exch. E. T. 1845. Showing cause in the first instance on a rule.] It is not a matter of right to show cause against a rule in the first instance, although notice may have been given. Doe v. Smith, 3 N. & P. 335. Where a party shows cause successfully in the first instance, he is not entitled to costs. Fitch v. Green, 2 Dowl. 439 ; and Clark v. Lord, 3 Law J., Ex. 20. Costs on successfully showing cause in the first instance against a rule.] A party who shows cause successfully in the first instance against a rule, which, if granted, would be a stay of proceedings, and operate to his prejudice, will be allowed the costs of opposing the rule. Rennie v. Berresford, 10 Jur. 76, Ex.; 15 Law J., Ex. 78; 3 Dowl. & L. 464. Rule discharged on a technical objection — costs.] Where a rule is discharged on a technical objection taken to an affidavit without going into the merits, no costs are allowed. Preedy v. Lovell. 4 Dowl. 671. To make an order of reference a rule of court.] An order of reference of a cause at Nisi Prius, maybe made a rule of court, although it does not contain the usual clause empowering the parties to that effect. Harrison v. Smith, 1 Dowl. & L. 876, Q. B. Rule discharged, costs on.] The rule of 1796, concerning costs on rules discharged without any direction as to costs, is strictly confined 260 SHERIFF. to applications on the ground of irregularity, either mentioned in the rule or in the attidavits. In all other cases where rules are moved with costs, and discharged generally without saying anything about costs, the successful party will not be entitled to them. A special direction must be given by the court in order to enable him to obtain them. Drlnkei-v. Pascoe, 4 Dowl. 566. Where a rule is discharged on a preliminary objection to the title of the affidavit supporting the rule obtained for setting aside proceedin_gs on the ground of irregularity, the court has discretion as to the costs of the application. Harris v. Matthews, 4 Dowl. 60S, B. C. SHERIFF. Sheriff, ivrits of trial directed to — before whom triedJ] An under- sheritF cannot appoint a deputy to try causes sent down by a writ of trial to the sheriff". Jones v. Williams, 12 Law J., Q. B. 295. Rule by defendant for sheriff to return writ.'] The defendant may rule the sheriff to return the writ, if it become necessary for him to do so ; as, for instance, where upon arrest he deposits a sum of money in lieu of a bail bond, and he afterwards wishes it to be paid into court. France v. Clarkson, 2 Dowl. 532. Some special grounds for the appUcation must be shown, or the court will not assent to an application on the part of the defendant against a sheriff to i-eturn a writ of ca. sa. Williams v Webb, 2 Dowl. N. R. 904. And a defendant cannot, without the plaintiff's consent, rule the sheriff to return a ca. sa. which has not been executed. Daniells v. Gompertz, 3 Q,. B. 322. Rule for returning writ after change of sheriff.] In order to obtain an attachment against the "late" sheriff", for not returning a writ, it is not sufficient that the order was directed to " the sheriff," although the " late sheriff" had returned the writ, but not in due time. Regina V. The late Sheriff of Cornwall, 7 Dowl. 600. And if an attachment have issued, the court, upon application, will set it aside for irregularity, with costs. Thomas v. Newman, 2 Dowl. N. R. 33. At any time whilst the sheriff", to whom a writ of fi. fa. has been di- rected, is in office, or within six months after he goes out of office, he may be ruled or ordered to return the writ, at the instance either of the plaintiff" or defendant, but not afterwards. Yrath v. Hopkins, 2 C. M. & R. 250; 3 Dowl. 711. Sheriff's return to fi. fa.— priority of writs.] Declaration against the Sheriff of Middlesex, for a false return to a writ of fi. fa. First count for seizing and levying, and falsely returning nulla bona. Second count for not levying on the goods of the debtor in their bailiwick, out of which they might have levied. The defendants pleaded to the first count, that they did not seize or take any goods of the debtor, nor levy the debt thereout ; and to the second count, that there were no goods of the debtor in their bailiwick, out of which they could have levied. The defendants proved that a writ, at the suit of another creditor, had SHERIFF. 261 been delivered to them long before the delivery of the plaintiff's writ. This prior writ was not acted upon at the time of its delivery, but when the sale of the goods, &c., of the debtor took place subsequent to the delivery of the plaintiff's writ, the proceeds of the sale, after satisfying the landlord's rent, were first applied to satisfy the prior writ, and nothing was left to satisfy the plaintiff's writ : — Held, that the return of nulla bona was a good return, and that the defendants were enti- tled to a verdict on both issues, as the term " goods and chattels" of the debtor must be intended to mean, goods and chattels available to the plaintiff's writ. Hecnan v. Evans and another, 11 Law J., C.P. 1. Sheriff's return to several writs qffi.fa. delivered at the same timeJ\ Where an attorney, acting for seven plaintiffs in different actions, de- livered seven writs of fi. fa. to the sheriff, in one bundle, at the same time : — Held, that the sheriff could not call upon the plaintiffs or their attorney to say which writs were to have priority. Semble, that a return to the effect that he had received the writs at the same time, and had levied under all, would be a good return. Ashworth v. Earl of Uxbridge, and other plaintiff s in separate actions v. same, 12 Law J., Q. B. 39. Where the execution of a Ji. fa. is suspended by the plaintiff, and another writ issues, the sheriff must levy under the second writ.~\ Where a writ of fi. fa. is delivered to the sheriff, with directions to suspend the execution, and in the mean time another writ is delivered by another creditor, the sheriff is bound to levy under the latter writ in preference to the former, although the former writ was not delivered Avith any fraudulent intent to protect the goods of the debtor. Hunt V. Hooper and another, 1 Dowl. & L. 626. A warrant with instructions sent to a sheriff's officer, does not con- stitute him a special bailiff, and release the sheriff.^ A plaintiff's at- torney sent two writs of ca. sa. to the under-sheriff, with the following letter : — " Enclosed you will receive a ca. sa. in each of the above actions. I will thank you to procure and forward warrants upon each to M. T., sheriff's officer at N., whom I have instructed as to the exe- cution thereof." The attorney also wrote to M. T., directing him to levy, and instructing him where to find the defendant : — Held, not to amount to an appointment of M. T. as special bailiff. Alderson v. Davenport, 1 Dowl.& L. 966, Ex. The mere fact of a plaintiff requesting the sheriff to direct his war- rant to a j)articular officer does not constitute the latter a special bailiff, so as to render him the plaintiff's assent. Balson v. Mer)cjatt, 4 Dowl. 557 ; 1 Har. & W. 659 ; and Corbet v. Brown, 6 Dowl." 794. Sheriff refused relief nnder the Interpleader Act^ Where an under- sheriff, acting as attorney for certain creditors of the defendant, informed them of a writ of fieri facias, at the suit of the ])lainliff, having been placed in his hands to execute, by which means the issu- ing of a fiat in bankruptcy against the defendant was accelerated, and the plaintiff's execution thereby defeated, the court refused to grant 262 SHERIFF. the sheriff relief under the Interpleader Act. Cox v. Balne, 2 Dowl. &L. 718, Q. B. A sheriff' is not bound to accept an indemnity.^ Where a sheriff has seized goods under a fi. fa., and a claim to them is put in by another person, he is not bound to accept an indemnity from the execution creditor, but may obtain relief under the 1 & 2 Will. 4, c. 58, s. 6. Levy V. Champneys, 2 Dowl. 454, B. C. Extent of the liability of u sheriff" on failing to bring in the body under a ca. sa.] Where the sheriff failed to bring in the body under a ca. sa., and an attachment issued against him: — Held, that he was only liable to the plaintiff for not putting in and perfecting bail to the same extent as the bail, viz., for the amount of the debt and costs, and having mistakenly paid the plaintiff the amount of the penalty of the bond, he was entitled to be paid the excess. Reg. v. Sheriff of Middlesex, 15 Mee, & W. 146 ; 3 Dowl. & L, 472 ; 15 Law J., Ex. 93. Action of trespass against a sheriff after an interpleader issueJ] A sheriff having applied for relief under the Interpleader Act, a judge directed the goods to be sold, and the money paid into court, to abide the event of an issue between the claimant and execution creditor. A verdict being found for the claimant, he then brought an action against the sheriff for breaking and entering his dwelling-house, and seizing and converting his goods. The court ordered that so much of the declaration as charged the defendant with seizing and converting the goods should be struck out. Abbott v. Richards, 15 Mee. & W. 194 ; 3 Dowl. & L. 487 ; 15 Law J., Ex. 330. Sheriff under aji.fa. cannot seize goods deposited as security. ~\ Under an execution against the goods of A., the sheriff cannot seize goods which A. has deposited with another person as security for a debt. Rogers V. Kennay, 15 Law J., Q. B. 381. Writ executed by sheriff against the wrong party, but of same name,'] If father and son bear the same name, and a writ of fi. fa. issue against the son, but without the addition of "the younger," prima facie the father is intended. This is merely a prima facie intendment, and, therefore, if the sheriff under such a writ take the father's goods, and to an action of trespass by the father, plead that the fi. fa. was issued against him, the prima facie intendment may be rebutted, and the sheriff made liable, by showing that the judgment was obtained and the writ issued against the son. — Quoere, whether the sheriff could justify under any form of pleading ? Semble, that the writ de identitate nominis is not the proper remedy for the party whose goods are taken, and that even if it were, it would not take away the right to bring trespass also. The judgment creditor is liable in trespass for the act of the attorney, in directing the sheriff to take the goods of the wrong party. Jarmain v. Hooper and others, 13 Law J., C. P. 63. Amendment of a clerical error in return to ca. sa.] Where the sheriff had obtained a rule nisi to amend a clerical error in the return to a ca. sa., costs of opposing it refused. Cassidy v. Stuart, 4 Scott, N. S. 187; 2 M. & G. 437. SHERIFF. 263 Sheriff's return to fi. fa., deducting rent due."] A return to a fi. fa. stated that the sheriff had paid a sum " for rent due for the premises whereon the said goods and chattels were taken in execution," but without stating that the rent was due at the time of the seizure. On motion to quash the return : — Held, sufficient. Reynolds v. Barford, 2 Dowl. & L. 327, C. P. Sheriff's officer executing a ca. sa., searching a stranger's house for defendant.'] A sheriflf 's officer is not justified in entering and search- ing a stranger's house to arrest a defendant under a ca. sa., although such defendant may have resided there immediately before the entry, and although the officer have reasonable cause to suspect that the defendant is in the house, if the fact be that he was not in the house at the time of the entry and search. Morrish v. Murray and another, 13 Law J., Ex.261. Excessive fees taken by sheriff's officer^ienalty under 29 Eliz. c. 4.] Declaration to recover treble damages against defendant as bailiff of the sheriff, on stat. 29 Eliz. c. 4, s. 1 :— Held, that statute 7 Will. 4, and 1 Vic. c. 55, only exempted the taking the fees allowed by the judges under that statute from the operation of the penal clause in Stat. 29 Eliz. c. 4, and, therefore, what was taken beyond what was warranted by that exemption was excess, for which the action would lie, Wrightup v. Greenacre, 11 Jur. 408, Q. B. Sheriff's expenses on executions.'] A sheriff is entitled to poundage on the whole amount realised by the sale, although a portion of it is paid over to the landlord for rent ; but the sheriff is not entitled to extra expense caused by an adverse claim to the goods. Davies v. Edmonds, 12 Mee. & W. 31 ; 1 Dowl. & L. 395. On the execution of writs, a sheriff cannot retain for charges and expenses other or larger sums than are allowed by the table of fees, made in pursuance of 7 Will. 4, and 1 Vic. c. 55. — Semble, if a sheriff has been put to extra expense in the levy, he should apply to a judge to allow it. Phillips v. Lord Canterbury, 1 Dowl. & L. 283, Ex. Sheriff's poundage fees.] On a rule calling on the under-sheriff of M. to show cause why he should not answer for his contempt in taking larger fees, as poundage, upon a sale by auction, than are allowed by the courts in the table of fees published under the au- thority of the act of 7 Will. 4, and 1 Vic. c. 55 : — Per cur., the fees which a sheriff is entitled to take under the 29 Eliz. c. 4, are not in- terfered with by the table of fees allowed under 7 Will. 4, and 1 Vic. c. 55. Davies v. Griffiths, 4 Mee. & W. 377 ; 7 Dowl. 204 ; 8 Law J., Ex. 70. The sheriff is only entitled, when levying under an extent, to poundage on the sums actually received by the process. Rex v. Robin- son, 2 C. M. & R. 334 ; 4 Dowl. 447. Under an attachment, he is not entitled to his poundage on the sum levied. Rex v. Sheriff' of Devon, 3 Dowl. 10, B. C. On the execution of a ca. sa., the sheriff is not entitled to poundage; 261 SHERIFF. the 43 Geo. 3, c. 4C. s. 5, only gives it under executions against the goods. Hai/leyv. Racket, 5 Mee. & W. 620. Where a writ of ca. sa. had been lodged with the sheriff, with in- structions at its foot not to arrest the jiarty, but to return non est inventus, and the defendant voluntarily came and gave himself into custody: — Held, that the indorsement on the writ could only mean that the sheriff was to take no steps, or to use no exertions in en- deavouring to arrest the party, but that under the circumstances the sheriff could not do otherwise than detain the defendant; and having arrested the defendant, the sheriff was entitled to his poundage. Magney and another v. Monger, 12 Law J., U. B. 306. The sheriff has no right to poundage on a li. fa. delivered to him where the amount of the execution is tendered to him before levy ; and a sheriff having refused to take such amount without poundage, and the defendant having paid poundage under protest, the court deter- mined, on motion, that the sheriff must pay it back again. Colls v. Coates, 3 P. & D. 511 ; 11 Ad. & E. 826 ; and Brun v. Hutchinson, 2 Dowl. & L. 43 ; 13 Law J., Q. B. 244. Costs payable to a sheriff, attachment for.'] Where costs are to be paid to the sheriff, who goes out of office, a power of attorney, exe- cuted by the under-sheriff, is sufficient to sustain an attachment. Regina v. Mattey, 6 Dowl. 515, B. C. Expenses of execution, what are.] The costs of an interpleader rule obtained by a sheriff, or other similar officer, cannot be considered as " expenses of the execution," which may be levied under the stat. 43 Geo. 3, c. 46, s. 5. Hammond v. Nairne, 9 Mee. & W. 221. Sheriff's expenses of levy, where judgment and execution set aside.] Where the sheriff levied under a fi. fa., and received the money, and afterwards the judgment and execution being set aside for irregularity, and the money ordered to be returned, paid it back with the assent of the plaintiff: — Held, that the stat. 43 Geo. 3, c. 46, does not take away his remedy by action of debt against the plaintiff for his poundage. Rawsthorne v. Wilkinson and others, 4 M. & Sc. 256. Sheriff's fees reduced on taxation — costs of taxation.] Where a sheriff takes a greater amount of fees than by the scale under the 7 Will. 4, and 1 Vic. c. 55, he is entitled to receive, and on taxation under a judge's order, by consent, the amount of his claim is reduced, the court cannot compel him to pay the costs of taxation under sec. 4, that section only applying to cases where the taxation has proceeded in consequence of a complaint to the court under sec. 3. Curlewis v. Bird, 1 Dowl. N. R. 752. Attachment against a sheriff, staying proceedings on.] Where an attachment is issued against the sheriff, for not returning a writ of venditioni exponas, it is no objection to an application to stay pro- ceedings under the attachment on terms, that it is strictly regular, and the sheriff in contempt, and although the application is made after a return to the fi. fa., in which the value of the goods seized was not stated. Reg. v. The Sheriff of Herts, 9 Dowl. 916. 265 SETTING ASIDE OR STAYING PROCEEDINGS. Setting aside proceedings, not sanctioned by the plaintiff.'] On an application by the defendant, to set aside the writ of summons and subsequent proceedinjTS, on the ground that they were not sanc- tioned by the plaintiff, it appeared in answer to the rule, that the action was brought to recover arrears of maintenance money, under a deed of separation, of which the plaintiff was trustee ; and that after the action was commenced, the plaintiff, in whose name it was neces- sary to bring the proceedings, and who had been told of the writ having been issued, and offered an indemnity, wrote to the attorneys who issued the summons, refusing her assent to the action. There was, however, no affidavit from her, and it was sworn that she had refused to carry out the trusts of the deed, as it was believed, in col- lusion with the defendant. The court discharged the rule with costs. Ansterv. Holland, 10 Jur. 786, Q. B. Setting aside proceedings, the defendant not served with process.] Un- less it be distinctly shown, that process has not come to the knowledge of a defendant, the court will not set aside proceedings upon a statement, that defendant has not been served with, or had notice of, the process. Emersonv. Brown, 7 Man. & G. 476 ; 8 Scott, N. R. 219. An affidavit made for the purpose of setting aside proceedings in the cause, in which the defendant alleged that he had not been personally served with process or copy, without negativing the fact of the process or copy coming to his hands, will not be sufficient, such process or copy having been left with his assistant at his house. The rule granted upon such affidavit will be discharged with costs. Hodges v. Ormond, 3 Law J., C. P. 232. Staying proceedings in an action brought against good faith.] Where a judge's order for staying proceedings in an action brought against good faith was made in Trinity vacation, and a motion to set aside that order was not made until Michaelmas term : — Held, that the mere lapse of time was not sufficient to preclude the application, no injury having accrued to the defendant thereby. Every court has an unlimited power over its own process, and may stay proceedings brought against good faith, though the agreement, in fraud of which the action was brought, was made whilst the par- ties were not under the authority of the court. Cocker v. Tempest, 7Mee. &W. 502, Staying proceedings in a second action for the same cause.] The court refused to stay the proceedings in an action, on the ground that a former action between the same parties had been brought for the same cause, and had been settled by the defendants paying the debts and costs therein. Ross v. Jacques, 10 Law J., Ex. 3()6 ; 8 Mee. & W. 135. A plaintiff who sued the hundred for damage done to his house by a riotous assembly, commenced his action in the King's Bench. He afterwards brought another for the same cause, in the Exchequer, but forbore to proceed in it, waiting to see the result of the former, and N 266 SETTING ASIDE OR STAYING PROCEEDINGS. merely bringing the second action to be within the time limited by the statute. The ('ourt of King's Bench, on motion, made a rule for him to elect, within a given time, in which action he would proceed, and that the other should be thereupon discontinued. Miles v. The Inha- bitants 0/ Bristol, 3 B. & Ad. 145 ; 1 Law J., K. B. 193. Staying proceedings on replevin bond.'} The court will not stay the proceedings on a replevin bond, unless it clearly ap])ears that the application is made on behalf of the sureties, and not of the principal. Warton v.Blachnell, 12 Mee.& W. 558 ; 1 Dowl. & L. 650. Proceedings in a replevin suit may be stayed by a judge's order at chambers, on payment of the penalty and costs of the plaintiff in the suit : replevin bonds are not an exception to the general rule. Brans- combe v. ScarbroKffh, 6 Ad. & E., N. S. 13, overruling Lore/ Lo?i5c/a/e V. Church, 2 T. R. 388, Staying proceedings in several actions on same replevin bond.} The assignee of a replevin bond, without any sufficient reason for so doing, brought separate actions against the principal and the sureties. The court, upon payment of the costs in one action, stayed proceedings in all. Barilett v. Bartlett, 11 Law J., C. P. 223. Judge's order for staying proceedings on payment, c^c, defendant's^ consent.} The rule of the 12th June, 1845, as to obtaining judge's orders for signing judgment, which requires that the defendant's " written consent be attested by an attorney acting on his behalf," has not the force of a rule of court ; and, where a judge's order for signing judgment was obtained, on a written consent, attested by an attorney acting for the plaintiff, the court held the attestation sufficient in law, and refused to set aside the order and judgment signed thereon. Dixon v. Sleddon, 15 Mee. & W, 427; 15' Law J., Ex. 284, 10 Jur. 599. Staying proceedings in several actions on the same contract.} Several actions were brought by the same plaintiff on the same contract, against the members of a railway company. A judge's order was obtained for staying proceedings in all but one, unless the plaintiff would elect on which of them he would proceed. The court rescinded the order. Newton and another V. Belcher, 10 Jur. 1030; 16 Law J., Q. B. 37. Where a plaintiff brought separate actions against several joint con- tractors, who were unable to plead their nonjoinder in abatement, and who were not willing to be bound by the result of the verdict in any one of such actions, the court refused to stay the proceedings in all the actions, except in such one as plaintiff should elect to proceed with. Giles v. Tooth, 10 Jur. 948 ; 16 Law J., C. P. 3. Where separate actions are brought against several joint contractors for the same debt, the court, upon payment of the debt and costs in one action, will stay proceedings in the other actions without costs. Newton v. Blunt, 16 Law J., C. P. 121. Staying proceedings, rule for, on the last day of term.} The court will not grant a rule for staying proceedings on the last day of term. Doe d. Smith v. Hardy, 4 Dowl. 356. SETTING ASIDE OR STAYING PROCEEDINGS. 267 Staying proceedings, debt being recoverable in county court. ^ An affi- davit to stay proceedings, on the ground that the debt was recoverable in the county court, should state that the defendant was residing in the county at the commencement of the proceedings. Bowling v. Powell, 12 Law J., Ex. 295. Where a foreign attachment had been sued by the plaintiff out of the Lord Mayor's Court, to seize money in the hands of bankers to a railway company, only provisionally registered, but no further steps had been there taken against the garnishee, the court refused to stay proceedings in an action subsequently brought in this court against three of the provisional committee of the railway company, in which the same debt was sought to be recovered as for work and labour done for the company, Denton v, Maitlund and others, 15 Law J,, Q, B. 332, Staying proceedings by judge's order until the bth day of term, motion when to be made.'] A cause was tried before the under-sheriff in vaca- tion, and upon an application to a judge at chambers, he made an order staying all further proceedings until the 5th day of the following term, in order that an application might be made to the court: — Held, that a motion made (in pursuance of such order) on the 5th day of the fol- lowing term, was too late. Roberts v. Foulkes, 1 B. C. Rep. 205. — Patteson, J, Summons on its return is a stay of proceedings.'] A summons to plead several matters returnable in vacation at the hour the Judgment Office opens on the day after the time for pleading expires, is a stay of proceedings, although the time for pleading has been enlarged. Spenceley v. Shoals, 5 Dowl. 562, Summons to stay proceedings waived by delivery of plea.] A sum- mons to stay proceedings on payment of debt and costs is waived by a delivery of a plea before the summons is due. Barton v. Warren, 3 Dowl. & L, 142, 10 Jur. 375. Staying proceedings by certificate of Speaker of the House of Com- mons.] The rule to stay proceedings in an action on the production of a certificate from the Speaker of the House of Commons, under 3 Vic. c. 9, s. 1, is absolute in the first instance. Stockdale v. Hansard, 9 Law J., Q. B. 218 ; 11 Ad, & E. 297. After judgment signed on certificate given at Nisi Prius the judge cannot stay proceedings.] Where a judge at Nisi Prius has granted a certificate for speedy execution, under the stat. 1 Will. 4, c, 7. s. 2, and final judgment has been signed accordingly, the judge has no power afterwards to order a stay of proceedings. Lander v. Gordon, 7 Mee. & W, 218 ; 10 Law J,, Ex. 39. Judge's order for staying proceedings set aside, and action brought on the agreement for the order.] Plaintiff agreed with defendant to with- draw the record in an action on two checks, which stood ready for trial in the Exchequer, upon the terms that defendant shovild pay the debt, interest and costs, on or before a certain day, or in default of N 2 ■268 SETTING ASIDE OR STAYING PROCEEDINGS. payment, that plaintiff should be at liberty to sign judgment, and that a judge's order should be given to secure i)ayment. The Court of Exchequer having afterwards set aside the judge's order, which had been made in pursuance of the above agreement, plaintiff brought an action on the a;rreement in the Court of Common Pleas: — Held, that these facts formed no ground for staying the proceedings in the action in the Court of Common Pleas. Wade v. Simeon, 3 Dowl. & L. 27 ; 1 C. B. 610. Proceedhicfs will not be stayed because the plaintiff is proceeding at the same time in bankruptcy j\ A j)arty may take proceedings under the 5 & G Vic. c. 122, s. 11 ; and at the same time ])roceed by action at common law for the recovery of the same debt. The plaintiff had made and filed an affidavit of debt against the defendant; and after- wards served the defendant with a notice, under the statute requiring immediate payment ; and also at the same time, with a writ of sum- mons in an action indorsed for the same debt, with 2l. Is. costs. The defendant afterwards paid the debt, but declined to pay the 2l. 2s. for costs. The court refused to stay proceedings in the action. Coving- ton V. Hogarth, 2 Dowl. & L. 619 ; 7 Man. & G. 1013 ; 14 Law J., C. P. 31. Order to stay, 8)-c. on payment of debt and costs, set aside on terms.'\ In assumpsit by the holder of checks, and issue on a plea that they were given for money lost at play, and whilst the cause stood for trial on December 7th, an order was made by consent, on the 6th, for pay- ment of the debt and costs; on the 14th the defendant having dis- covered fresh evidence, applied to set aside the order:— Held, that whilst the matter was in fieri and something remained to be done by the court to give effect to the arrangement, it had jurisdiction to consider whether it was equitable and just, and on terms made the rule abso- lute. fVade V. Simeon, 13 Mee. & W. 647 ; 2 Dowl. & L. 658. Order to stay, SfC. on payment of debt, costs, and incidental ex- penses.'] A judge's order directed a stay of proceedings on payment of debt and costs, with a stipulation, that in default of payment the plaintiff should be at liberty to sign judgment, issue execution, and levy the debt and costs, together with the costs of execution, sheriff's poundage, officer's fees, and all other incidental expenses : — Held, that the sheriff was right in refusing to levy as " incidental expenses " the costs of a rule to return the writ. Hutchinson v. Humbert, 10 Law J., Ex. 418. Staying proceedings by a feme sole, who afterwards ma7-ries.'\ If an action be brought against a feme sole, and a judge's order be made by consent to stay proceedings, on payment of the debt and costs by a certain day, otherwise final judgment ; and before that day she inter- marries, and on the day in question default is made ; judgment may still be entered up against her by her maiden name, and she may be taken in execution under a capias ad satisfaciendum, awarded against her alone. Thorpe v. Argles, 1 Dowl. & L. 831, Q. B. Application to stay proceedings on payment of a sum, refused— sub- SPECIAL CASE. 269 sequent costs.'] Where, after writ issued, the defendant applies to a judge to stay proceedings on payment of a certain sum and costs, and the plaintiff refuses to accept the sum offered, alleging that more is due, but at the trial recovers no more ; he is entitled to full costs, unless the amount offered has been paid into court. Clark, adminis- tratrix, dfc. V. Dann, 3 Dowl. & L. 513, Ex. Where the cause of action arose within the jurisdiction of a county court, and a sum of money under 40s. paid into coiut, under a rule to stay proceedings, omitting the usual undertaking by the defendant to pay the costs, and the defendant offered to give the plaintiff judgment within the first four days of the terra after the assizes, for the amount paid into court, in order that the question of costs might be decided by the court, and also required the plaintiff's attorney to inform him whether he intended to proceed for a larger sum, to which an evasive answer was returned, and the plaintiff proceeded to trial, and reco- vered nominal damages : — The court set aside the verdict, and stayed the proceedings, directing the costs subsequent to the offer, to be paid by the plaintiff. Jones v. Owen, 1 Law J., Ex. 181 ; 2 C. & J. 476 ; 2 Tyrw. 432. Staying proceedings upon payment of debt and costsJ] A judge at chambers has no power before declaration to order that proceedings be stayed upon payment of debt and costs within a certain time, otherwise judgment for the plaintiff. Reynolds v. Sherwood, 8 Dowl. 183, Ex. A judge at chambers cannot, in making an order for staying pro- ceedings on payment of debt and costs, direct that the defendant shall have a longer time to pay than he would otherwise have if the cause proceeded. Kirby v. Ellier, 2 C. & M. 215; 2 Dowl. 219. A defendant who moves to stay proceedings on payment of debt and costs, is not entitled to a rule for that purpose as a matter of right, but must submit to such reasonable terms as the court in its discre- tion may think proper to impose. Jones v. Shepherd, 3 Dowl. 42 1, Ex. SPECIAL CASE. Special case, abortive — costs of.'] Where, after verdict, the parties, at the suggestion of the court, agreed to state a special case, and the plaintiff accordingly drew and delivered to the defendant a case which was rendered abortive by the defendant's default :— Held, that the plaintiff, who had the general costs of the cause, was not entitled to any costs of the abortive special case. Foley v. Botfeld, 16 Law J., Ex. 3. Special case, signature of counsel to.] A verdict having been taken for the plaintiff, subject to a special case, the terms of which were to be settled by a barrister, and the barrister having settled the case, the defendant refused to jjrocure the signature of a serjeant to it ; the court granted a rule, that unless the defendant, within a week, caused the case to be properly signed, the postea shoiild be delivered to the plaintiff. Doe d. Phillips v. Rollins, 15 Law J., C. P. 186. Special case stated after the death of one of the parties.] Where a cause was by order of Nisi Prius referred to a barrister to state a 270 TAXATION. special case, and the case was stated after the death of the defendant, the court refused to set it aside. Jnmes and another v. Crane and another, 3 Dowl. & L. (361 ; 15 Law J., Ex. 232. Where after a verdict taken, subject to a special case, but before the terms of it settled, the lessor of the plaintiff died : — Held, to be no ground for setting aside the verdict, but that the court would compel security for costs. Doe v. Stephens, 2 Dowl, & L. 993 ; 10 Jur. 570. Special case drawn by referee — counsel's signature.'] Where a verdict has been given subject to a special case, to be turned into a special verdict, and both parties have agreed to the nomination of a referee to draw and settle the special case, the signature of counsel to such case is unnecessary. And, although the counsel on one side had signed, and counsel on the other side refused to sign, a rule for strik- ing the case out of the paper for irregularity was discharged. Price V. Quarrell, 11 Law J., Q. B. 84. Special case should be confined to questions of law, not of fact.] The court will not in general take upon themselves the ofhce of a jury in deciding upon a special case, submitted to them by agreement of the parties, when the principal questions are questions of fact, to be decided upon the conflicting testimony of witnesses whose credit is made matter of question. Brockbank \. Anderson and another, 13 Law J., C. P. 102. TAXATION. Notice of taxation, when may be given.] By rule T. T., 1 Will. 4, one day's notice must be given to the opposite party before taxation ; but a notice given before nine o'clock at night is good for the next day. Edmund v. Cates, 4 Mee. & W. 66 ; 6 Dowl. 667. If the defendant has not appeared no notice need be given. Burch v. Poynter, 3 Mee. & W. 310 ; 6 Dowl. 387. Taxation, notice of, where defendant has appeai-ed.] Although a defendant may have appeared in an action, and the plaintiff taxes his costs, without giving notice of taxation, that is not an irregularity sufficient to induce the court to set aside a judgment and subsequent proceedings. Lloyd v. Kent, 5 Dowl. 125. Notice of taxation, consequence of not giving.] Where the plaintiff had taxed his costs without giving notice of taxation to the defendant, and issued execution, the court, upon affidavit of merits made by the defendant, set aside the judgment and subsequent proceedings with- out payment of costs. Ilderton v. Sill, 9 Jur. 948 ; 15 Law J., C. P. 1. Notice of taxation not necessary where plaintiff appears sec. stat.] No notice of taxation is necessary where the plaintiff appears for the defendant sec. stat. ; although the defendant's attorney afterwards takes out and serves a summons for time to plead. Such summons is not tantamount to an appearance, within the rule of H. T. 4 Will. 4, s. 17. Welch V. Vickery, 15 Mee. & W. 59. TAXATION. 271 And a bill of costs need not be delivered before taxation. Burch v. Tointer, 3 Mee. & W. 310; 7 Law J., Ex. 63. A notice to tax at Westminster in term is good. Blalie v. Warren, 8 Dowl. 173. Copy of affidavit of increase must be delivered with notice.'] The affidavit of increase must be sworn one day before taxation, and de- livered with the notice of taxation. Todd v. FelUngham, 8 Dowl. 372, Ex. Taxation of costs of bill of exceptions.'] The court of error must order the taxation of the costs of a bill of exceptions, and not the court below. Doe d. Harvey v. Francis, 4 Mee. & W. 331 ; 7 Dowl. 193. Taxation between attorney and client — discretion of the master.] The " directions to the taxing officers" of T. T., 7 Vic, do not prevent the master from allowing an attorney, as against his client, the costs of counsel, retained by express direction of the client, and with full knowledge that such costs could not be recovered against the opposite party. In re J. C. Smith, 2 Dowl. & L. 376, Ex. A submission to taxation is an admission of retainer.] Where an attorney's bill is referred generally to the officer for taxation, he cannot take into his consideration the question of retainer ; that is tacitly admitted by the submission to taxation. Nelson v. Slack, 2 M. & Sc. 820. Taxation after plea of payment into court.] A sum of money had been offered to a plaintiff in satisfaction of his demand, which he dechned to accept ; but subsequently on its being paid into court, with a plea of such payment, he took it out. The court will not in- terfere to give the defendant his costs, or point out the mode of tax- ation, unless the defendant has been before the master. Roe v. Cob- ham, 6 Scott, 146 ; 6 Dowl. 628 ; and Head v. Baldrey, 8 Ad. & E. 605. Order for taxation without undertaJcing to pay, no stay of proceed- ings.] A summons and order to tax an attorney's bill without an undertaking to pay what shall be found to be due, do not operate as a stay of j)roceedings, so as to prevent the attorney from suing out a ■writ after the order is obtained. Williams v. Roberts, 1 C. M. & R. 670; 4 Law J., Ex. 78. Taxation of attorney's bill after action brought, without prejudice.] Where an attorney's bill contains taxable items, the court has autho- rity, after action brought, to refer it for taxation, without requiring any admission of liability on the bill, or imposing any other terms upon the defendant. WilUums v. Griffith, 9 Law J., Ex. 185. Taxation— jurisdiction of master as to negligence.] On taxation of an attorney's bill the master has no jurisdiction to disallow items on 272 TAXATION. the ground that in respect of the business to which they refer the attorney was guilty of nejfligencc. Where A. and U. delivered a bill in their joint names for business done as attorneys, and the master on taxation disallowed part of the bill, on the ground that B. was not a certificated attorney during a portion of the time to which the bill referred, the court, on affidavit that B.*s name was used at the recjuest of friends, but that he was really not a partner with A. allowed A. to deliver a fresh bill in his own name only, for the items so disallowed. Matchett v. Parkes, 9 Mee. & W. 767. Although the master, on taxation, has not jurisdiction to determine whether acts done by the attorney were useful, he may determine what were necessary. Heald v. Hall, 2 Dowl. 163. Where the master has disallowed certain costs on taxation between party and party, as being unnecessarily incurred ; and the attorney afterwards sues his client for the same costs, which are again disallowed on taxation ; the court will not inquire into the propriety of the master's decision. Nichols v. WiUiams, 11 Law J., Q. B. 190. Where there appears to be negligence or ignorance of law on the part of an attorney, which creates unnecessary costs, the court will order those costs to be disallowed on taxation, without prejudicing his right to bnng an action for them. Clijfe v. Prosser, 2 Dowl. 21. On a rule to show cause, why the master should not review his taxation of costs, it appeared that the master had allowed only half the charge for preparing briefs, conceiving them to have been hastily prepared, for the sake of costs. The court refused to interfere. Buck- nail V. Boy dell, 7 Scott, 171. Taxation of agency hills.~\ A bill for agency business is not taxable under the 6 & 7 Vic. c. 73. In re Gedye, between Gedye and Elgie, 14 Law J., Q. B. 238 ; 2 Dowl. & L. 915 ; and Weymouth v. Knipe, 3 Bing. N. S. 387; 5 Dowl. 495. Taxation of hill of costs on which action is brought — delivery of bill — agency.^ AVhere the plaintiff, an attorney, was employed by the defendant, also an attorney, to go into the country to defend a person charged with bribery at an election, had delivered two bills of costs, one in November, 1841, and another in June, 1842, both of which were unsigned, payments on account having been made; plaintiff in order to sue for the balance, delivered in February, 1847, signed bills, copies of the former bills delivered, and at the expiration of a month sued on the same; defendant applied for and obtained a judge's order for the taxation of the signed bills. On a motion to set aside the judge's order on the grounds that the bills had been delivered more than 12 months, and that being bills for agency business were not taxable : — Held, on the first ])oint that the signed bills being delivered within six months were taxable, and on the second point that they were not agency bills. Billing v. Coppock, MS. Exch. T. T. 1847. One attorney employed by another as an advocate — bill of costs.'] Where one attorney employed another to advocate the cause of his client before an arbitrator, it was holden that the bill of the party so TAXATION. 273 employed could not be referred for taxation, for it was business done as an advocate, not as an attorney. Re Simons, 14 Law J., Q. B. 41 ; 2 Dowl. & L. 500. Taxation according to the lower scale, under rule H. T. 4 Will. 4.] If the plaintiff' 's claim be reduced by a cross demand below '201. the reduced scale of taxation is right. Savage v. Lipscombe, 5 Dowl. 3S5. It proceedings be stayed by judge's order on payment of 11/., the costs must be taxed on the lower scale. Cook v. Hunt, 7 Dowl. 397. An action having been settled, and proceedings stayed by judge's order, on the payment of less than 20l. into court, the master having taxed on the usual scale, and a judge by order directed him to review his taxation and tax on the lower scale, according to rule H.T. 4 Will. 4, the court would not rescind such order, on a suggestion that the cause is one which would have been proper to be tried before a judge. Keppell, Clk. v. Shillson and another, 12 Law J., Q. B. 323. Where a cause is referred, and the award under 20l., the costs are to be taxed on the reduced scale. Hallen v. Smith, 5 Mee. & W. 1.59; 7 Dowl. 394 ; and Wallen v. Smith, 3 xMee. & W. 138 ; 6 Dowl. 103. If, upon reference to the master, an attorney's bill be reduced to a small balance, the master may tax upon the lower scale. Parker v. Serle, 6 Dowl. 334. The rule H. T. 4 \Vill. 4, which directs that in assumpsit, debt, or covenant, where the sum recovered shall not exceed 201., the plaintiff's costs shall be taxed according to the reduced scale, applies to a defen- dant's costs where he succeeds. Where a writ of trial to the sheriff had been applied for by the plaintiff and refused, the demand being imder 20/., and the defen- dant obtained judgment as in case of a nonsuit, the master having taxed the defendant's costs on the reduced scale, the court refused to review the taxation. Williamson v. Heath, 12 Law J., Q. B. 16S. The directions to taxing officers, H. T. 4 Will. 4, do not apply, in terms, to a defendant's costs. A defendant's costs maybewithin the spirit of the directions, and in such cases the court will not interfere, where the master has taxed a successful defendant's costs upon the reduced scale. But, where in an action brought to recover the sum of 5/., as a fine payable on the admission of the defendant to copyhold premises, the plaintiff obtained a special jury, and upon reference of the cause to arbitration the defendant succeeded, but obtained no certificate that it was a fit cause to be tried before a judge, the master having taxed the costs upon the usual scale : — The court held, that he had done rightly. Richardson v. Kensit, 13 Law J., C. P. 17. Taxation where verdict for 20/., and cause could not be tried before sheriff.] Waltherv. Mess, 14 Law J., Q. B. 230. See Costs, p. 81. Taxation of costs of several issues at different times.] In trover tlie issue on not guilty was found for the defendant, and other issues for the plaintiff. The defendant taxed his costs on the issue found for him, and they were paid by the plaintiff. Nearly a year after the plaintiff applied to the master to tax the costs of the issues which were found for him, but this the master declined to do. The court refused a rule to set aside a judge's order directing the taxation to be N 3 274 TAXATION. made. Waismi and others v. Boyes and another, 14 Law J., Ex- 116. Taxation of costs of cross issues.'] Where some issues are found for the plaintiff and some for the defendant, the latter will be entitled to the costs of the witnesses who are called exclusively in support of the issues found for him, but not of those who are also examined to prove the issues found for the plaintiff. Crowther v. Elwell, 4 Mee. & W. 71 ; 7 Law J., Ex. 251 ; and Kni(/ht v. Broivn, 2 M. & Sc. 797. Where the defendant is entitled to the general costs of the cause he is entited to the expenses of the witnesses called in support of an issue upon which he has succeeded, notwithstanding that their e\adence was also applicable in sui)port of an issue as to which the jury was discharged. Butler v. Hobson, 5 Scott, 824; 7 Law J., C. P. 148. If a defendant pleads the general issue and several special pleas, and the jury find for him on the general issue, and for the plaintiff on the special pleas, the latter is entitled to the costs of the pleadings and witnesses on those pleas. Hart v. Cutbush, 2 Dowl. 456. Where in an action on the case, a defendant succeeds on one of several issues which goes to the foundation of the plaintiff's cause of action, he will be entitled to the general costs of the cause, although there is a verdict for the plaintiff upon the plea of " not guilty," without damages. Franhum v. Lord Falmouth, 4 Dowl. 65. Where there are several issues, if the pleas found for the defendant taken together form an answer to the whole of the plaintiff's demand, the defendant is entitled to the general costs of the cause, although some issues may have been found for the plaintiff and damages assessed thereon. Probert v. Phillips, 2 Mee. & W. 40 ; 6 Law J., Ex. 10 ; 5 Dowl. 473. In trespass for breaking and entering the plaintiff's close and pulling down a gate, the defendant justified under a right of way to a certain river with horses and carts for water and goods. The jury found in favour of the defendant as to the right for water, and against him as to the right for goods. Upon motion to enter the verdict for the plaintiff:— Held, that the plea being in its nature distributive, and part being found for the defendant, and part for the plaintiff, the ver- dict should be entered for the defendant, on that part found for him, and for the plaintiff, as to the residue. Held, also, that the defend- ant was entitled to the general costs of the cause, and to the costs of all the witnesses upon the issue as to the right of way for water, although some of those witnesses also gave evidence as to the right of way for goods. Knight y.Woore, 6 Law J., C. P. 135; 3 Bing. N. C. 3 ; 4 Scott, 360 ; 5 Dowl. 487- Taxation of attornei/s bill by consent, costs of— no undertaking to pay.'] Where an unsigned bill, delivered by an attorney, was, with his consent, referred by a judge's order to taxation, at which he at- tended, when more than a sixth was struck off; the court, under its general jurisdiction, ordered him to pay the costs of taxation ; although the order contained no undertaking on the part of the client to pay the amount found to be due. Peters v. Sheehan, 12 Law J., Ex. 177. TAXATION. 275 Taxation of costs on the loiver scale, where arbitrator found 171. 3s. due.'] Where a cause and all matters in difference were referred to arbitration, the costs of the cause and of the reference to abide the result, and the costs of a cross action between the parties to be also in the discretion of the arbitrator, but no power was given to en- ter up judgment for the amount awarded ; and the arbitrator found that a sum of 17/. 3s. was due to the plaintiff, and that nothing was due in regard to any other matters in difference between them, and that the costs of the cross action should be borne equally between the parties ; and it appeared that the defendant had successfully resisted an application to try the cross action before the sheriff:— Held, the master having taxed the plaintiffs costs on the higher scale, that the court would order a reviewal of his taxation. Elleman v. Williams, 2 Dowl. & L. 46, Q. B. Taxation of an attorney's bill after payment^ Payment of an at- torney's bill, within the 6 & 7 Vic. c. 73, s. 41, dates from the time at which a bill of exchange or promissory note given in liquidation is paid, and not from the time of the mere delivery o f the instrument. 'in re H. L. Harries, 1 Dowl. & L. 1018, Ex. Taxation of attorney's bill sued on by his executor.'] The court has no power to refer to taxation an attorney's bill containing taxable items, in an action brought upon it by his executor. Williams v. Griffith, 10 Mee. & W. 125. Taxation of costs on payment of a less sum than indorsed on writ.] The defendant is not entitled to have the costs taxed, under the rules H. T. 2 Will. 4, r. 11, and M. T. 3 Will. 4, r. 5, where a less sura than the amount of the debt and costs indorsed on the writ of sum- mons has been paid and accepted within four days of the service, unless it shall clearly appear that the deduction was made from the debt, and not from the costs, or that the plaintiff acknowledged there was a mistake in the amount of the debt indorsed. Young v. Crompton, 10 Jur. 248, B. C— Patteson, J. ; 2 Dowl. & L. 557- A copy of affidavit of increase must be a correct copy.] The delivery of a copy affidavit of increase, which, instead of a complete jurat, has only the word " sworn," &c. is not a compliance with the rule of court of Trinity term, 1 Will. 4, s. 10. But for this defect the court will not set aside the judgment, but will only direct a review of the taxation. Wheldal v. Northern and Eastern Railway Company, 13 Mee. & W. 9 ; 2 Dowl. & L. 246. Taxation of costs on verdict in favour of one of two defendants^ An action of trespass was brought against a minor and his father. The minor pleaded not guilty, by his father as his guardian, and the father pleaded two other special pleas, by the same attorney. Upon the trial, a verdict was found for the minor, and against the father ; and on the taxation of costs the master allowed no mileage to the defendant's attorney, and only one guinea for his attend- ance on the trial. He also allowed for only four sheets of the 27G TAXATION. briefs, and a small proportion of counsel's fees, and only a moiety of the expenses of one witness, who was subpoenaed with another witness to speak to facts material for the son's defence. The court refused to refer back the question as to the allowance in respect of the briefs and the counsel's fees, but directed the master to review his taxation with respect to the mileage and attendance of the at- torney, and also the expenses of the two witnesses. Alderson v. Waistell and anuther, 13 Law J., Q. B. 254. Where two defendants in trespass sever in pleading, but plead the same pleas, all iioing to the wdiole action, and one succeeds upon all the issues, the other upon one only, each defendant is entitled to his ex parte costs of the issues on which he has succeeded, and an aliquot part of the joint costs, unless the master is satisfied that, by reason of special circumstances, less ought to be allowed to either. Where defendants appeared by separate attorneys and counsel, but the attorneys were members of the same firm, and the briefs and evidence substantially the same, the master taxed the costs as if the parties had appeared by the same attorney; it was admitted that the taxation, in that respect, could not be disturbed. Gambrellv. Earl of Falmouth, 5 Ad. & E.403 ; 5 Law J., K. B. 253; 6 N. & M. 859. Costs of briefs — ulloivance of on taxation — discretion of master.'] The master is not bound, in the taxation of costs of briefs, or short-hand writer's notes accompanying them, by the certificate of counsel that they were necessary, but is to exercise his own discretion in the matter, taking the certificate into consideration, together with the other facts. May v. Tarn, 12 Mee. & W. 730; 1 Dowl. & L. 997. There is no general rule that the master, on taxation of costs, shall allow the costs of two briefs only, except where a certain number of witnesses were examined ; it is a matter for his discretion on all the circumstances of the case. Shurpe v.Askby, 12 Mee. & W. 732 ; 1 Dowl.& L. 998. The number of counsel in a cause alloived on taxation.'] The number of counsel in general allowed is to be in the discretion of the master. Grindall v. Godman, 5 Dowl. 378. Taxation of costs — affidavit of increase— payment of ivitnesses.] The practice of the court requires that the witnesses in a cause should be actually paid before an aflfidavit of increase is made ; and if such appears not to be the case, the court will order the sums sworn to be paid and allowed by the master to be refunded. Trent v. Harrison, 14 Law J., Q. B. 210. Costs of taxation after action brought^ Where an order is ob- tained to tax an attorney's bill, after action brought thereon, and the defendant then pays the amount found to be due into court, which the plaintiff takes out, the costs of the taxation of the bill are rightly taxed to the plaintiff as costs in the cause. Thomas v. Mayor, SfC. of Swansea, 11 Mee. & W. 83. Costs of taxation after action brought.] Where an attorney's bill TAXATION. 277 is referred to taxation after action brought upon it, the attorney is liable, under Q Sc 7 Vic. c. 73, s. 37, to pay the costs of taxation, if more than one-sixth is struck off. Ex parte Woollett, 12 Mee. & W. 504; 1 Dowl. & L. 593. Verdict for plaintiff in. action for an attorney's hill subject to tax- ation^ Action on an attorney's bill ; verdict for the plaintiff, subject to taxation of the bill, within the first five days of the ensuing term. Defendant having omitted to tax the bill within that time : — Held, that the plaintiff was entitled to sign judgment, and tax his costs. Tucker V. Neck, 4 Bing. N. C. 113; 5 Scott, 393 ; 6 Dowl. 231. Costs of taxation of attorney's bill after action brought thereon.^ Where an attorney's bill is delivered one month before, and no order for taxation obtained till after action brought, the defendant is not entitled to the costs of taxation, although the master reduces the bill by more than one-sixth. Robinson v. Powell, 9 Law J., Ex. 17. Cost of interrogatories not used on the trial disallowed on taxation.'] The master having refused on taxation to allow the costs of examining a witness upon interrogatories, the interrogatories not having been offered in evidence at the trial : — Held, no ground for the revievval of taxation. Curling and others v. Robertson, 2 Dowl. & L. 307, C. P. Taxation of costs of witness — subsistence money.] At the defendant's instance, the trial was postponed from the summer to the following spring assizes. The defendant afterwards obtained an order for stay of proceedings, upon payment of the sum for which the action was brought and costs. After the postponement, the plaintiff obtained an order for the examination of a witness, a master of a vessel, who was about to leave England ; but the plaintiff, having received notice of the defendant's intention at the trial to attack the credit of this wit- ness, abandoned the order, and on the advice of counsel detained the witness in this country : — Held, that the plaintiff in this exercised a proper discretion, and that the master was right in allowing, on the taxation of costs, subsistence to. this witness, from the service of the subjjcena until when the action was stayed, Evans v. Watson, 10 Jur. 818. Reviewing taxation.'] AflUdavits used before the master on the tax- ation of costs cannot be read on showing cause against a rule for reviewing the taxation, unless they are referred to in the rule ; a notice that they will be used is sufficient. Cliffe v. Prosser, 2 Dowl. 21. Where it was alleged in an affidavit that certain sums, sworn to in an affidavit of increase, had not been paid, the court directed the tax- ation to be reviewed by the master. Pembrey v. Jones, 11 Jur. 589, B. C. Where, in an attorney's bill of costs, several items, not for fixed fees but of a discretionary nature, had no charges set opposite to them, and others were charged, some too low and some too high ; and the master, on taxation, reduced the latter to the proper scale, but declined to increase the former, or to insert the charges omitted alto- 278 TERM'S NOTICE. gether; the court refused to review the taxation. Eyre v. Shelley, 8 Mee. & W. 154. An api)]ication to review the taxation of costs ougfht not to be made before the master has made his allocatur, as he has not, until doing so, finally decided what costs he will allow. Sellman v. Boom, 8 Mee. & W. 552. Taxation of costs on order of Nisi Prius made a rule of court after the death of d(fendant.'\ A judj^fe at the assizes made an order to postpone a cause to the next assizes, the defendant forthwith to pay to the plaintiff' the costs of the day to be taxed. This order was after- wards made a rule of court, before which however the suit having abated by the death of the defendant, the court refused lo order the costs to be taxed with a view to the plaintiff's issuing execution under the 1 & 2 Vic. c. 110, s. 18. Hill v. Brown, 11 Jur. 290. Interest not allowed on taxation of attorney's billJ] The master has no power to allow an attorney interest on the amount of his bill, although the attorney have given notice to his client, under the stat. 3 & 4 Will. 4, c. 42, s. 34, that he should claim interest; even where the reference for taxation is after action brought, interest cannot be allowed, unless a stipulation to that effect were made in the order. Berrington v. Phillips, 1 Mee. & W. 48. TERM'S NOTICE. Term's notice not necessary by defendant.'] The rule requiring a term's notice prior to proceedings being taken, where the cause has been at issue more than four terms, does not apply to proceedings taken on the part of the defendant. Skinfield v. Laxton, 4 M. & So. 187. Term's notice unnecessary where delay was at defendant's request.] A term's notice of proceeding by the plaintiff is not necessary after the lapse of four terms, if the delay has taken place at the defendant's request. Evans v. Davis, 3 Dowl. 7S6. Term's notice not necessary for costs of the day.] The rule requir- ing a term's notice of proceeding does not extend to a motion for costs of the daj^ for not proceeding to trial. French v. Burton, 1 Law J,, Ex. 257 ; 2 C. & J. 634. Term's notice to discharge rule for new trial.] A term's notice of motion to discharge a rule for a new trial is necessary where no pro- ceedings have been taken for more than four terms after the rule has been obtained. An order, by consent, to change the defendant's attor- ney is not a proceeding in the cause so as to render such notice un- necessary. Deacon v. Fuller, 2 Law J., Ex. 175 ; 1 Dowl. 675; 1 C. & M. 349. A term's notice not necessary on proceedings after verdict.] The rule, that a term's notice is necessary where no proceeding has been YEN UE — Changing of. 279 taken in a cause for a year, does not apply to proceedings had after verdict. Newton and Wife v. Boodle and others, 11 Jur. 148, C. P.; 16 Law J., C. P. 135. Term's notice where rule for new trial not acted upon for more than a year.'] Semble, that where a rule for a new trial has been obtained on payment of costs, a term's notice should be given, after the lapse of more than a year, of a motion to discharge it. Lord v. Wardle, 5 Law J., C. P. 259. NEHVE.— Changing of. Changing venue from town to country — effect on time to plead.] A rule to change the venue from town to country, drawn up as a stay of proceedings on the day on which the time for pleading expired, and served before the plaintiff has signed judgment, has the effect of giving the defendant eight days' time to plead, instead of four, unless the venue be brought back. A judgment, therefore, signed for want of a plea, after service of the rule : — Held, irregular. Nicholls v. Stockbridge, 11 Law J., C. P. 292. Changing the venue in an action for a libel.] In an action for a libel, contained in a letter written in Buckinghamshire, when it did not appear that it had been circulated elsewhere, the court allowed the venue to be changed from London to that county, on the usual affidavit. Tallent v. Morton, 1 M. & P. 188. Where a libel is published in two counties, and the defendant changes the venue, the plaintiff may bring it back. Clementson v. Newcomb, 1 C. M. & R. 77- Changing the venue in an action on contract.] The venue may be changed in an action on a written contract which is to be performed in a particular place, and for the breach of which the cause of action arises wholly in one county ; and semble, that it may be so changed in all actions on contracts, though in writing, except on specialties, bills, and notes. Mondel v. Steele, 8 Mee. & W. 640. Where the venue cannot be changed.] The court will not change the venue if it appears on the face of the declaration that the contract on which the action is brought is in writing or by deed. Picard v. Fea- therstone, 4 Bing. 39 Nor can the venue be changed in an action on an award. Stanway V. Heslop, 3 B. & C. 9 ; 4 D. & R. 635. The defendant cannot change the venue after an order for time to plead, " on the usual terms," either in town or country causes, whether the trial will be delayed or not. Notts v. Curtis, 2 C. & J. 345 ; 2 Tyrw. 307. But an order to " plead issuably" does not prevent the defendant from changing the venue. Russell v. Hart, 1 C. & M. 184 ; 3 Tyrw. 218. Venue brought back without undertaking to give material evidence.] Where the venue, in an action for freight, had been changed on the 280 YE^VE—Chanffinff of. usual affidavit, it was brought back upon affidavits, stating^ only that the cause of action and tiie contract for the conveyance of the jjfoods and payment of freight, on account of which the money in the decla- ration was claimed, arose and were entered into at Newfoundland, and not in the county into which the venue had been changed, without the plaintiff undertaking to give material evidence in the county where the venue was originally laid. Cundell v. Harrison and others, 16 Law J., Q. B. 81. In an action for a libel ])ublished in a news])aper, the court made the rule for carrying back the venue absolute, with costs, without an undertaking on the part of the plaintiff to give material evidence in the county to which the venue was thus carried back. Easthope v. Westmacott, 6 Law J., C. P. 245. UndertaMng to give material evidence in the county to which the venue is brought hack.~\ An undertaking to give material evidence in the county in which the venue is changed, in an action for goods sold and delivered, is satisfied by proof of letters, containing invoices of goods, having been put into the post office in that county at the time the goods were forwarded. Linley v. Bates, 2 C. & J. 659. A plaintiff's undertaking to give material evidence in the county, is satisfied, by proof of a letter of the defendant, admitting part of the debt, posted in such county, and received by the plaintiff in another county. Hall v. Storey, 16 Law J., 17, Ex. Proof of a conversation with the defendant in the cause, referring to the matters involved in it, taking place after the writ is sued out, will satisfy an undertaking to give material evidence in the county where the conversation took place. Gosling v. Birnie, 1 M. & M. 531. Changing the venue.'] After a plea in abatement the venue cannot be changed. Wigley v. Dubbins, 12 Moore, 91 ; 4 Bing. 18. Although the general rule is, that a motion to change the venue on special grounds, cannot be made until after issue joined, yet if the pleadings and facts of the case are such that the court cannot fail to see what the issues joined must be, the application may be granted before issue joined. Doioler v. Collis, 4 Mee. & W. 531. Change of venue — power of court.] The court has power under 5 & 6 Will. 4, c. 76, s. 109, to direct an action, the venue of which is laid in the city of Bristol, to be tried in the adjoining county, the exception in 38 Geo. 3, c. 52, s. 10, being repealed, as well in civil as in criminal proceedings. Cole v. Gone, 15 Law J., Q. B. 22. Venue retained on undertaking to give material evidence.] Where the venue has been retained in the county in which it was originally laid, on undertaking to give material evidence in that county, it is no ground of nonsuit that the plaintiff has not given material evidence in that county, unless the objection be taken at Nisi Prius. How v. Pickard, 2 Mee. & W. 373. Changing the venue, in debt for use and occupation.] The defendant may change the venue on the usual affidavit, in an action of debt for use and occupation. Herring v. Watts, 2 Dowl. & L. 609, C. P. VERDICT. 281 Changing the venue where a corporation is concerned.'] A cause being connected with a corporation is no ground for changing the venue. Thornton v. Jennings, 7 Dowl. 499 ; 5 Bing. N. S. 485. VERDICT. Verdict in debt with pleas of payment and set-off.'] To debt for goods sold and delivered, the defendant pleaded as to 338?., parcel of the monies demanded in the declaration, payment, and also a set-oflF. It was proved, that only 314/. was actually paid, but a set-ofF to the amojint of 21/. was established, and 335Z. was the full value of the goods sold :— Held, that these pleas were divisible, and that the de- fendant was entitled to judgment, on the plea of payment to the amount of 314/. and on that of set-ofF to the amount of 21/., and the plaintiff was entitled to judgment for the residue on those pleas ; but there being a plea of nunquam indebitatus, the defendant was entitled to judgment on the whole record. Cousins v. Paddon, 5 Law J., Ex. 49; 2 C. M. & R. 547 ; 4 Dowl. 488. Verdict in covenant — several counts and one breach only.] Where there are several counts on one agreement, of which there is only one breach, the court will limit the verdict to one count, and will only allow the costs of one. Ward v. Bell, 1 C. & M. 848 ; 2 Law J., Ex. 271; 2 Dowl. 76. Verdict subject to a reference stands, if reference be not proceeded with.] Where a verdict is taken, subject to a reference, which is not proceeded with, the plaintiff cannot take the cause down to trial again whilst the verdict stands. Hall v. Rouse, 4 Mee. & W. 24 ; 6 Dowl. 656. Verdict delivered after the return day of writ of trial] The court will not award a venire de novo where, on a writ of trial, the jury, having retired to deliver their verdict, came into court and delivered it after the conclusion of the return day, neither party having made any objection previous to the delivery of the verdict. Finhiey v. Brett, 11 Law J., a.B. 9. Verdict on issues in fact, venire omitting the assessment of damages on demurrer.] Where judgment on demurrer had been given for the plaintiff, and on the trial, all the issues in fact were found for him, the court refused to set aside the trial, on the objection that the venire facias juratores was only to try the issues, and not to inquire of the damages on the demurrer ; saying, that the defect was amendable, and that they would leave the party taking the objection to his writ of error. Wood v. Peyton, 14 Law J., Ex. 28. Verdict taken generally where some counts are bad — venire de novo.] A declaration contained some good and some bad counts. At the trial evidence was given on all, and the verdict passed for the plaintifl, with general damages. The defendant moved in arrest of judgment ; and the plaintiff' having obtained from the judge who tried the cause an order to amend the postea, by confining the verdict to a good 282 VERDICT. count, the order was set aside, and a venire de novo awarded. Emp- son V. Griffin, 9 Law J., Q. B. 23 ; 3 P. & D. IGO. A verdict may he (jeneral if the jury so desire.'] On a motion for a new trial, the court held, that a jury are not bound to find any other than a general verdict, although the judge directs them to find specially as to a particular fact on which a legal question may be raised ; and where they refused the court would not disturb the verdict. Mai/or of Devizes, Sfc. v. Clark, 3 Ad. & E. 506. Entry of verdict, on a fact left by the judge being found.l The judge at Nisi Prius told the jury, that in case of their believing a fact, the verdict must be for the plainliiT; the jury having retired, returned into court and told the associate, who alone was there, that they found the fact ; the associate then informed them that this was a verdict for the plaintiff, and entered it so, but the jury expressed to him their dissent, and said they were not agreed to find for the plain- tift". The court discharged a rule nisi obtained on affidavit of these facts, for setting aside the verdict and having a new trial, upon the ground (only) of the jury not having agreed to find for the plaintiff. Doe d. Lewis v. Busier, 5 Ad. & E. 129. Recording verdict.'] Where, in trover, the jury found for the plain- tiff, but accompanied their verdict with a statement in writing, that, whether the goods were delivered to the defendant as a loan or a gift, they ought to have been returned, which the associate refused to receive : — Held, that he was right, it amounting to a mere expression of their private opinion. Whittell v. Bradford, 5 Scott, 711. Effect of verdict for plaintiff without damages.] To an action on the case, the defendant pleaded, first, not guilty ; secondly, a plea as to which the jury were discharged ; thirdly, that the plaintiff had not sustained damages beyond 5/. Issues having been joined on these pleas, the plaintiff had a verdict on the first issue, without damages, and the defendant a verdict on the last issue. The plaintiff had ob- tained the postea :— Held, that the defendant was entitled to the postea as the record then stood, and that unless the judge who tried the cause amended it, by adding nominal damages, a venire de novo must issue. Grout v. Glazier, 10 Law J., Ex. 276. Where the plaintiffs, upon the trial of a cause, had obtained a ver- dict upon some issues, and the defendant upon others, which went to the whole cause of action, and no damages were assessed, but the plaintiffs afterwards had judgment non obstante veredicto upon the pleas on which the defendants had succeeded : — Held, that the plain- tiffs were bound to take the risk of issuing a writ of inquiry to assess damages, upon themselves ; and the court would not make absolute a rule calling on the defendants to show cause, why a writ of inquiry should not issue. Pirn and another v. Reid and others, 1 Dowl. & L. 512; 12 Law J., C. P. 299. A verdict subject to a special case — subsequent death of plaintiff^ Where on the trial of an action of ejectment a verdict was taken, sub- ject to a special case, and before the' terms of it were settled the lessor WARRANT OF ATTORNEY. 283 of the plaintiflF died :— Held, that this formed no ground for an appli- cation for setting aside the verdict, or staying proceedings in the action ; but that the court would compel the plaintiff to find security for costs. Doe d. Earl of Egremont v. Stephens, 2 Dowl. & L. 993, Q. B. ; 10 Jur. 570. WARRANT OF ATTORNEY. Form of attestation to warrant of attorney. '] A warrant of attorney was attested as follows : — " Signed, sealed, and delivered in the pre- sence of H. Whitaker, 10, Lincoln's Inn, attorney for the said Lord Kensington, expressly named by him, and attending at his request, and I hereby subscribe myself to be the attorney for him, having read over and explained to him the nature and effect of the above warrant of attorney before the same was executed by him, and I hereby sub- scribe my name as a witness to the due execution thereof:" there was no further subscription of the name of the witness ; but the above signature, " H. Whitaker," was the name and was in the handwriting of the witness : — Held, that the above signature was a sufficient sub- scription by the witness ; secondly, that the form of the attestation was a substantial compliance with the requisitions of 1 & 2 Vic. c. 110, s. 9, and sufficiently showed that H. W. was the attorney for the de- fendant, and that he subscribed as such attorney. Lewis v. Lord Kensington, 15 Law J., C. P. 100. Form of attestation to cognovit or warrant of attorney ^^ A cognovit was attested as follows : " Duly executed by the above-named Robert Gibbs, in the presence of me, the undersigned Samuel Balden, attorney on behalf of the said Robert Gibbs, expressly named by him, and at- tending at his request. And I do hereby declare that I subscribe ray name as witness to the due execution hereof by the said Robert Gibbs, and as his attorney, and that previous to the execution hereof by the said Robert Gibbs I informed him of the nature and effect hereof. Samuel Balden, attorney :"— Held, that this was a sufficient attesta- tion. Phillips V. Gibbs, 10 Jur. 971 ; 16 Law J., Ex. 48. A warrant of attorney was attested in the following form : " Signed, sealed, and delivered by J. A., in my presence, and I subscribe myself as attorney for the said J. A., expressly named by him to attest his execution of these presents:" — Held, by Alderson, B., to be insuffi- cient ; Parke, B., dubitante. But assuming such attestation to be bad :— Held, that it was not such gross negligence as to preclude the attorney of the creditor from re- covering his charges in respect of the warrant of attorney, it having been set aside as defective. Elkington v. Holland, 9 Mee. & W. 059- A warrant of attorney was attested in the following form : " Signed in the presence of me, A. J. C., and I declare myself to be attorney of the said R. G., expressly named by him, and attending at his request, and subscribe myself accordingly, A. J. C." :— Held, that the word " accordingly," meant as such attorney, and that the attestation was therefore sufficient. Lindley v, Girdler, 1 Dowl. & L, 699, Q. B. Attorney attesting warrant of attorney^his subscription.'] Where the subscription of the attorney to the attestation omitted to add that 284 WARRANT OF ATTORNEY. he signed as such attorney for the party : — Held, insufficient, although BO described in the attestation clause. Everard v. Poppleton, 5 Ad. & E., N. S. 181; 1 D. & M. 222. Warrant of attorney executed abroad.'] Where in a warrant of at- torney executed abroad, without any clause of attestation, as required by 1 & 2 Vic. c. 110, s. 9, the court set aside the judgment which had been entered ; although the defendant was an outlaw, he was still en- titled to the protection of the court against proceedings irregularly taken against him, although not capable of putting the law in force for his benefit until he has obtained a reversal of his outlawry. Daois v. Trevanion, 2 Dowl. & L. 743. Warrant of attorney, alteration after execution.'] A party executed a warrant of attorney to confess judgment for lOOOZ., in the presence of an attorney, who subscribed his name as a witness to the execution as attorney for him, pursuant to 1 & 2 Vic. c, 110, s. 9. The warrant of attorney was afterwards altered, by consent, by changing the sum to 2000/. The attorney was present, and passed a dry pen over the attestation, and over his own signature : — Held, that the warrant was not duly subscribed. Bailey and others v. Bellamy and others, 10 Law j.,aB. 41. Warrant of attorney, time for filing ^ Under the statute 3 Geo. 4, c. 39, s. 1, which directs warrants of attorney to be filed within twenty- one days after their execution, a warrant executed on the 9th day of the month is filed in sufficient time, if filed on the 30th. Williams v. Burgess and another, 10 Law J., Q. B. 10. Warrant of attorney must be filed in due time.] Where the warrant was not filed within twenty-one days after its execution, as prescribed by the 3 Geo. 4, c. 39 : — Held, invalid, although the judgment and exe- cution thereon issued before a commission of bankruptcy issued ; and that the assignees were entitled to the proceeds in assumpsit for money had and received, against the creditor, although the goods had been assigned to him by the sheritF in specie, after appraisement of the value, in satisfaction of the debt. Bittleston v. Cooper, 14 Mee. & W. 399. Warrant of attorney, date of execution.] Where a warrant of attor- ney is filed twenty-one days after execution, under 3 Geo. 4, c. 39, with an affidavit made by the attesting witness, stating that the de- ponent was present on the 4th April, 1844, and saw the within-named W. H. R. sign, seal, and, as his act, deliver the warrant of attorney, it is sufficiently shown that the deponent saw defendant execute the warrant on the day and year named. Robinson v. Robinson, 3 Dowl. & L. 134 ; 10 Jur. 356, B. C— Coleridge, J, Attorney attesting, warrant of attorney.] The attorney attesting being named to the defendant by the plaintiff's attorney will, under circumstances, be sufficient. Taylor v. Nicholl, 6 Mee. & W. 91 ; 8 Dowl. 242. Where a defendant, who is about to execute a warrant of attorney. WARRANT OF ATTORNEY. 285 declines the attendance of his own usual attorney, but adopts freely an attorney suggested by the plaintiff's attorney, that is a sufficient nomination of an attorney by the defendant, pursuant to 1 & 2 Vic. c. 110, s. 9. Hale v. Dale, 8 Dowl. 599, B. C. Where three defendants go to a particular attorney named by the plaintiff, and give him instructions to prepare a joint warrant of attor- ney from them to the plaintiff, and each of the defendants freely re- cognizes the attorney as acting for him, the warrant is good, notwith- standing the provisions of the 1 & 2 Vic. c. 110, ss. 9, 10 ; Haiffk v. Frost, 7 Dowl. 743, B. C. But the fact of the name of the attorney attesting the defendant's execution having been suggested by the plaintiff's attorney : — Held, to be a ground for setting it a?ide, as not being a compliance with the statute. Kemp v. Matthew, 8 Scott, 399; and Rice v. Linstead, 6 Scott, 895. Nor is it a sufficient compliance with 1 Reg. Gen. H. T. 2 AVill. 4, s. 72, that an attorney should be named by the plaintiff, and adopted by the defendant in custody on mesne process, when executing a war- rant of attorney. White v. Cameron, 6 Dowl. 476, B. C. Where a party went to an attorney's office for the purpose of exe- cuting a warrant of attorney, and found the plaintiff, the plaintiff's attorney, and the attorney's brother, also an attorney, there ; and the plaintiff's attorney read from the warrant of attorney, and the defen- dant repeated after him, a form of words, nominating the brother as the defendant's attorney : — Held, that such a nomination was sufficient. Walton V. Chandler, 14 Law J., C. P. 149- Where the attorney for the defendant was his usual attorney, and named expressly by him on the occasion, yet it appearing that the same person was acting for the ])laintiff, and prepared the security : — Held, not a compUance with the statute. Rising v. Dolphin, 8 Dowl. 309, B.C. The provisions of 1 & 2 Vic. c. 110, s. 9, rendering necessary the presence of an attorney on behalf of any person executing a warrant of attorney, do not apply to the case of a warrant of attorney given in an action of ejectment. Doe d. Kingston v. Kingston, 11 Law J., Q. B. 73. Where, on the execution of a warrant of attorney, there is only one attorney present, it ought to be clear that he is not the plaintiff's attorney. Sanderson v. Westley, 6 Mee. & W. 98; 8 Dowl. 412. AVhere a party giving a warrant of attorney is himself an attorney, no other attorney need be present at its execution. An apphcation to set aside a warrant of attorney on such a ground cannot be sustained by a third party. Chipp v. Harris, 5 Mee. & W. 430 ; 9 Law J., Ex. 64. If a prisoner seeks to take advantage of 1 Reg. Gen. H. T. 2 Will. 4, s. 72, on the ground of the absence of an attorney on behalf of the prisoner, at the execution of a warrant of attorney, it is incumbent on him to show that he is in custody on mesne process, and it is not ne- cessary for the plaintiff to show that the defendant is not. Lewis v. Gompertz, 6 Dowl. 7. A debtor, being arrested, offered a warrant of attorney ; the plain- tiff's attorney, who had also advised the defendant in previous stages of the business, came at his request to the place where he v/as in cus- 286 WARRANT OF ATTORNEY. tody, and proposed another attorney, whom he brought with him, to read over the warrant of attorney to the defendant, and attested it on his behalf. The defendant acquiesced ; but the attorney so introduced was not known to or sent for by him : — Held, that this was not a compliance with the rule E. T. 4 Geo. 2, (and see Reg. H. T. 2 Will. 4, 72,) which declares, that no warrant of attorney e.xecuted by a person in custody of the sheritt', &c., shall be valid, unless there be present an attorney on his behalf, to be e.xpressly named by him, and attend- ing at his request, to witness it ; and the warrant of attorney and pro- ceedings thereon were set aside for irregularity. Walker v. Gardnery 4 B. & Ad. 371. AVhere a defendant requests the plaintiff's attorney to procure for him an attorney to attest his execution of a warrant of attorney, the attestation of an attorney so introduced to the defendant is good within sec. 9 of 1 & 2 Vic. c. 110. Joel v. Dicker, 11 Jur. 589, B. C. Judgment on warrant of attorney — attesting witness residing abroad.'] An affidavit by the plaintiff, that the defendant was indebted to him on an old warrant of attorney, and that he had not paid the sum secured by it, — that he saw the defendant execute it, and that the attesting witness was also present, but was now residing in France, and that the defendant was now alive : — Held, sufficient to entitle the plaintiff to enter up judgment. Taylor v. Leighton, 3 M. & Sc. 423. Judgment on warrant of attorney — attesting witness having absconded.'] Where the attesting witness to a warrant of attorney is the clerk of the attorney preparing it, the want of his affidavit, on signing judgment, is sufficiently supplied by that of his master verifying the hand- writing of his clerk and of the defendant, and stating that the former has absconded, and cannot be found. Young v. Showier, 2 Dowl. 556. Judgment on warrant of attorney, by executors or administrators of plaintiff.] Where a warrant of attorney only authorizes judgment to be entered up at the suit of the plaintiff, without mentioning executors, administrators, &c., the court will not allow judgment to be entered up at the suit of the plaintiff's executors, although representatives are mentioned in the defeasance. Manvill v. Manvill, 1 Dowl. 544 ; and Foster v. Claggett, 6 Dowl. 524. Where a warrant of attorney refers to the plaintiff, " his executors and administrators," but the affidavit of execution makes no mention of executors or administrators, the court will not allow judgment to be entered up. Baldwin v. Atkins, 2 Dowl. 591. In a more recent case of this kind, the court allowed judgment to be entered up, on the condition of producing an amended affidavit of attestation. Hulinv. Powell, G Law J., C. P. 236. Judgment on warrant of attorney given by a married woman dum sola.] Judgment may be entered up against a husband on a warrant of attorney given by his wife dum sola. Higginbottom v. Higginbot- tom, 8 Dowl. 126. Where judgment is signed by mistake against a married woman WARRANT OF ATTORNEY. 287 alone, on a warrant of attorney given by her dum sola, a rule nisi only will be granted for vacating that judgment, and signing another against the husband and fldfe. Pocock v. Fry, 8 Dowl. 126. Warrant of attorney by a marksman.'] Semble, that the court will not grant permission to enter up judgment on an old warrant of attorney executed by a marksman, where it was only sworn that the warrant was "duly executed," and it is not stated that it was read over to the defendant. James v. Harris, 6 Dowl. 184, C. P. Warrant of attorney given as a guarantieJ] Where the warrant was given as a guarantie, an affidavit that the guarantie still remained in force and effect : — Held, sufficient, although not stated that any sum was due. Pickering v. Carnell, 8 Dowl. 300, B. C. Warrant of attorney void if given for illegal consideration.^ Where a charge of embezzlement having been preferred before a magistrate, by A. against B., and during an adjournment of the case, for the pur- pose of procuring further evidence, the magistrates being of opinion that a partnership existed between the parties, a warrant of attorney was, on the 13th October, given by B.'s father to A. for a sum which, on an investigation of the accounts, appeared to be due from his son, and on the 15th of October, no further evidence being produced, the charge was dismissed : — Held, that the warrant of attorney was given for an illegal consideration, as at the time when it was executed a charge of a criminal nature was pending, which it was calculated to bring to an end. Ex parte Geo. Critchley the elder, 15 Law J., Q. B. 124. To set aside a warrant of attorney for illegal consideration.'] The affida\ats in support of a motion to set aside a warrant of attorney, on the ground that it has been given to compound a felony, should state a specific agreement to that effect ; or, at least, such facts as leave no doubt that such an agreement has been made. Ward v. Lloyd, 1 Dowl. & L. 763, C. P. Appearance entered on a warrant of attorney where the court is not expressly named.] Where a warrant of attorney was directed to J. W. C, and H. J., "attorneys of his Majesty's Court of King's Bench," authorizing them "to appear for the defendant, as of" &c., and " there to receive a declaration for him ;" and thereupon, " to suffer judgment, &c. to be forthwith entered up against him of record of the said court ;" and the defeasance provided that it should not be necessary to revive the judgment after the lapse of a year and a day, "any rule, &c., in the said Court of King's Bench, to the con- trary, notwithstanding:" — Held, that an appearance was properly entered for the defendant in the Court of King's Bench, no other court being mentioned in the warrant of attorney. Harris v. Peck, 2 Dowl. & L. 106, Q. B. Judgment on warrant of attorney may be set aside by defendant though a bankrupt.] Upon an application to set aside the execution upon a judgment under a warrant of attorney, if it appear that the 288 WARRANT OF ATTORNEY. party applying has some interest, the court will not look to the amount of it: — Held, therefore, that the ajjplication might be made by a defendant against whom a fiat in bankruptcy hail afterwards issued, and which was in the course of operation, as he had an interest to increase the divisible fund to be distributed under the fiat. Pinches v. Harvey, 10 Law J., Q. B. 3lG. Judgment signed on warrant of attorney after the death of defendant, an insolvent, set aside.'] An insolvent, on his discharge, executed a war- rant of attorney, ])ursuant to the 7 Geo. 4, c. 57, s. 57, (of which the provisions are re-enacted by 1 & 2 Vic. c. 110, s. 87). After the in- solvent's death, the assignees obtained an order from the Insolvent Court to enter up judgment ; and it was entered up accordingly. The judgment was set aside upon motion by the executors of the in- solvent. Harden and another , assignees , Sfc. v. Forsyth, deceased, 10 Law J., Q. B. 132. On a judgment on a warrant of attorney an alias fi. fa. may issue without entering continuances on the 7'oll.] In August, 1841, the de- fendant executed to the jjlaintiff a warrant of attorney, with a defea- sance. Judgment was signed thereon on the 13th September, 1841, but the roll was never carried in. By a judge's order, obtained by consent on the 9th September, 1842, it was ordered that execution should issue on the judgment without a sci. fa. On the 14th Sep- tember a fi. fa. was issued, which was returned nulla bona on the 29th September, and filed on the 20th December, 1842. In April, 1845, an alias fi. fa. was issued under which the defendant's goods were taken. He afterwards became a bankrupt : — Held, first, that the judge's order was not void as against the assignees, under 3 Geo. 4, c. 39. Secondly, that the alias fi. fa. was regular ; for that, since the statutes 2 Will. 4, c. 39, and 3 & 4 Will. 4, c. 07, succeeding writs of execution need not be tested on the return day of the preceding writ, and may be sued out at any time afterwards, without the necessity of entering continuances on the roll. Harmer v. Johnson, 14 Mee. & W. 336; 3 Dowl. & L. 38. Judgment entered up in vacation on a warrant of attorney .] A war- rant of attorney authorised certain persons toappear for the defendant, " as of Trinity term now last, Michaelmas term now next, or some other subsequent term, then and there to receive a declaration," &c. &c. Judgment having been entered up on the 15th March, (in vaca- tion) the court set that judgment aside for irregularity ; but (inde- pendently of the question of entering the judgment in term or vaca- tion) : — Held, that the instrument would have been satisfied by the entry up of judgment at a period subsequent to that at which the declaration was received ; and that, supposing the declaration to have been received in a term, it v/ould have been competent to the plain- tiff to enter uj) judgment in vacation, notwithstanding such judgment was required by the instrument to be " thereupon forthwith" entered up. Rayment v. Smith, 1 Dowl, & L., Q. B. 166. Judgment on warrant of attorney after the death of defendant^] Judgment cannot be entered up on a warrant of attorney after the WARRANT OF ATTORNEY. 289 death of the defendant without having it revived by sci. fa. Heath v. Brindletj, 4 N. & M. 235. Signing judgment on xvarrant of attorney!] It is no objection to signing judgment on a warrant of attorney under fifteen years old, that the defendant is insane. Piggott v. Killick, 4 Dowl. 287, B. C. Where a warrant of attorney is executed to two persons, and one dies, the survivor may enter up judgment in his own name. Hind v. Kingston, 6 Dowl. 523, B. C, and Spong v. Tucker, 1 Y. & J., 206. Where a warrant of attorney is given to three for a joint debt due to them, and no mention is made either in the warrant or defeazance of survivors, judgment, however, may be entered up at the suit of the survivors. Build v. Wightman, 1 Dowl. 545, B. C. Judgment on warrant of attorney — no suit pending — title of affidavit.'] An affidavit in support of a motion for entering vip judgment on a warrant of attorney (given when no suit is pending) need not be en- titled in any cause. Davies v. Stanbury, 3 Dowl. 440, Ex. Judgment on warrant of attorney — affidavit of defendant being alive.] In order to obtain leave to sign judgment on an old warrant of attorney, it is necessary to show that the defendant was "alive," and not merely " seen," within a reasonable lime before the applica- tion. Chell V. Oldfield, 4 Dowl. 629, B. C. In appearing to sign judgment on a warrant of attorney, it is insuffi- cient for the deponent to swear that he believes the defendant to be alive from information which he has received, unless he also swears that he believes the information to be true. Reeder v. Whip, 5 Dowl. 5/6, B. C. It has been held sufficient if the affidavit states that the defend- ant was " seen alive within ten days." Krell v. Jay, 4 Dowl. 600, B.C. And in a subsequent case upon an affidavit that the defendant had been seen and conversed with by the deponent twenty- seven days before the motion was made. Powell v. Howard, 6 Scott, S26, C. P. Where a defendant was seen alive in England on the 20th February, the court allowed judgment to be signed against him in Easter term, on an old warrant of attorne)', although he was then resident in France, but in what part was unknown. Bayleyv. Western, 7 Dowl. 6ol, B. C. Where a defendant is resident in the West Indies, a judgment may be signed against him on a warrant of attorney if seen alive four months before. Fursey v. Pilkington, 2 Dowl. 452, B. C. The court allowed judgment to be entered up on an old warrant of attorney on the 5th November, the defendant not having been seen alive since the 30th of the previous September, Stocks v. Willes, 3 Dowl. 221, B. C. On applying for judgment on an old warrant of attorney, it is suffi- cient proof of the defendant being alive that a letter in his hand- writing has been received. Gray v. Withers, 4 Dowl. 63C>, B. C. And it is sufficient proof of the defendant being alive to show that a cheque of his has been paid, dated thirteen days liefore the appli- cation. Jacobs v. Griffiths, 5 Dowl. 577, B. C. o 290 WARRANT OF ATTORNEY. Judgment was allowed to be entered np on an old warrant of at- torney on the I7th of May, altlioiifrh the defendant had not been seen since the •23rd of Aj)ril previous. Watts v. Bury, 4 Dowl. 44. Joint warrant of attorney — when judgment may be signed against one. '\ Where the warrant of attorney is to suffer judgment to be entered up against two, or either of them, judgment may be entered up against one only. Jordan v. Farr, 2 Ad. & E. 437 ; 4 N. & M. 347. And on a warrant of attorney to confess judgment to two, judg- ment may be entered up in favour of a survivor. Johnson v. Jenkins, 1 Dowl. 367. On a joint and several warrant of attorney, given by two persons, judgment was signed against one only, but as the attorneys were authorized to enter up judgment against both, the court allowed it to be done, and held, that an affidavit, stating that the party against whom the judgment was signed, put in an answer to a bill in Chan- cery, within the term, was sufficient proof of his being alive. Stoveld v.Eade, 3 M. & Sc. 361. Joint warrant of attorney — one defendant an infant.'] The three defendants, one of whom was an infant, entered into a warrant of attorney, on which judgment was entered up ; on a rule for setting aside the judgment, upon the ground of one of the defendants being an infant, the court ordered the name of the infant to be struck out, and discharged the rule as to the two adults, with costs. Ashlin V. Langton, 4 M. & Sc. 719; 3 Law J., C. P. 264. Joint warrant of attorney, when not several."] A warrant of attorney, executed by two persons, authorized attorneys to appear for us and each of us, and to receive a declaration for us and each of us, in an action of debt, and thereupon to confess the same action, or else to suffer judgment by nil dicit, or otherwise to pass against us in the same action, and to be thereupon entered up against us and each of us, and after the said judgment shall be entered up as aforesaid, for us and in our names, to execute a release of errors, &c., suffered or done, &c., in the aforesaid judgment : — Held, that this warrant was not several, and did not autborise a judgment against one of the par- ties executing it, but only against both. Dalrymple v. Fraser and another, 15 Law J., Q. B. 193. Judgment on warrant of attorney must not exceed in amount the sum authorised.] Where a warrant of attorney authorised an appearance to be entered in an action for 200/. and judgment to be suffered in the said action for the said (leaving a blank) ; and an appearance was ac- cordingly entered, and judgment signed for 200/., together with the costs of the suit, amounting to 3/. 10,v. ; and afterwards a scire facias was sued out to revive the judgment, and judgment obtained thereon by default, and the defendant, who was in custody, was charged in execution, under a habeas corpus ad satisfaciendum, at the suit of the plaintiff: — Held, on motion to set aside the judgment, and to discharge the defendant out of custody, that the judgment for costs was not au- thorised by the warrant of attorney, and was therefore a nullity, and must be set aside in toto ; and that the court could not amend it, by WARRANT OF ATTORNEY. 291 striking out that part which referred to the costs, without a rule to amend. Page v. South, 2 Dowl. & L. 108, Q. B. A warrant of attorney may authorize judgment without application to the court.^ A warrant of attorney contained a clause empowering the party to whom it was given, without applying to the court, to sign judgment and issue execution, notwithstanding a year and a day might have elapsed : — Held, that judgment signed and execution issued within ten years from the tiate of the warrant was regular, although no application had been made to the court. Sherran v. Marshall and another, 1 Dowl. & L. 689, Q. B. Warrant of attorney — interest included in judgment^ Where a war- rant of attorney makes no mention of interest on the principal, but the defeazance does, the court will allow execution to be issued for the principal and interest. Shipton v. Shipton, 1 Dowl. 518. Where a warrant of attorney is given to secure payment of a cer- tain sum and interest, judgment cannot be entered up for principal and interest, upon an affidavit stating what is due for interest ; but there must be a reference to the master to compute the amount of interest. Page v. Jadis, 6 Law J., C. P. 229. Judgment on warrant of attorney on office copy of affidavit of execu- tion.^ Judgment may be obtained on an old warrant of attorney, al- though only an office copy of the affidavit of its due execution is pro- duced. Webb v. Webb, 4 Dowl. 599. Judgment on warrant of attorney — motion to add interest referred to the master.'\ Where the defeazance on a warrant of attorney showed that the debt secured by the instrument was to carry interest, but the penalty in the instrument itself was the amount of the actual debt only, the court, on special application, referred it to the master to find what was due for interest, and authorized judgment to be taken for the penalty and such interest. Chalk v. Wolton, 1 Dowl. & L. 39, C. P. Judgment on warrant of attorney on affidavit of plaintiff's clerk.'] Leave was granted to enter up jucigment on a warrant of attorney, above one and under ten years old, upon an affidavit of the plaintifi''s clerk and assistant, by whom the goods, in respect of which the war- rant of attorney was given, were supplied. Cobbold and another v. Adams, 10 Jur. 72, B. C. — Patteson, J. Warrant of attorney — date of judgment.] Where a warrant of attor- ney, dated in July, authorized certain attorneys to appear, &c. " as of Trinity term last, Michaelmas term next, or any subsequent term," &c., and judgment was signed in August as of the preceding Trinity term : — Held, that this was regular, notwithstanding the rule H. T. 4 Will. 4, s. 3, which provides, that " all judgments, whether interlocu- tory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed, and shall not have relation to any other time." Jarvis v. South, ISMee. & W. 152; 1 Dowl. & L. 962. o 2 292 WARRANT OF ATTORNEY. Jud()ment on warrant of attnrneij — appearance unnecessary — when objection must he taken.'] On the Gth February, 1845, judcfment was sifrncil on a warrant of attorney, without entering an appearance for the defendant. A ii. fa., issued thereupon, was executed on the 24th April. A fiat in bankruptcy issued against the defendant on the 5th May. On the '2Gth May application was made to the court on the part of the assignees to set aside the judgment and execution : — Held, first, that it was not necessary to enter an appearance. Secondly, that if the omission was an irregularity, it was waived by the delay in making the application. Charlesworth, P. 0., Sfc. v. Ellis, 10 Jur. 92, Ex. Judgment on warrant of attorney signed in vacation — lohen objection must be taken.] A judgment against a bankrupt will not be set aside for irregularity, unless the assignees apply within four days after they have notice of it. A judgment signed in vacation is valid, when the warrant of attorney authorized it to be entered up " as of the term." Alcock v. Sutcliffe, 11 Jur. 126; 16 Law J., Q. B. 129. Warrant of attorney — judgment entered up in vacation.] The jjlaintiff on the 30th November (in vacation) entered up judgment, not " as of Michaelmas term," upon a warrant of attorney given in 183S, and authorizing him to sign judgment as of last Trinity term, next Michaelmas term, or any subsequent term. The writ of fi. fa. thereon was executed December 6th. The defendant became bankrupt December 18th, and assignees were appointed on the 3rd January. On the 15th April an application was made by the assignees to set aside the judgment and execution : — Held, that the irregularity in the judgment had been waived by the time which had elapsed. Semble, per Tindal, C. J., a warrant of attornej'-, given to appear and sign judgment as of a term, does not authorize a signing of judg- ment in vacation. Bate v. Laivrence, 13 Law J., C. P. 147. A judgment entered up on the 4th day of January, 1844, as of Michaelmas term, 7 Vic, on a warrant of attorney, given by a party in 1835, to appear as of last Hilary term, next Easter term, or any subsequent term, and then and there, &c. : — Held, bad. Held, also, that in the absence of proof, the court would not presume that the appearance and receipt of the declaration had been in terra. Birdv. Manning, 13 Law J., Q. B. 123. Judgment on warrant of attorney more than a year old, on affidavit of plaintiff ^s attorney.] In order to obtain leave to enter up judg- ment on a warrant of attorney more than one year old, the affidavit of the plaintiff's attorney, who negotiated the loan for which it was given, and still continued to act for him, that the debt remained due : —Held, sufficient. Bill v. Enoe, 13 Law J., Q. B. 65. Judgment on warrant of attorney signed more than a yeai — execution thereon.] Where, by the defeazance to a warrant of attorney, it appears to have been in the contemplation of the jiarties that execu- tion should be had after a year and a day from the signing of the WITNESS. 293 judgment, it is not necessary that the plaintift" should sue out a scire facias to revive the judgment ; but he is at hberty to sue out execution upon the judgment, after a year and a day, without reviving the judg- ment by scire facias. Hiscocks v. Kemp, 5 N. & M. 113 ; 4 Law J., K. B. 226. Judgment on warrant of attorney more than ten years old.'] The court will not grant a rule absolute in the first instance for judgment on a warrant of attorney more than ten years old, though it be to confess judgment on a bond, and the defendant is resident abroad. Fletcher v. Everard, 13 Law J., Q. B. 44. Warrant of attorney for a prospective debt illegal.'] A warrant of attorney, given by a cHent to his attorney, to secure future costs, is illegal. Jones v. Hunter, 1 Dowl. 4G2. A warrant of attorney, given to secure payment of future costs, and also of costs and money already due and advanced, though void as to the client's future liability, is valid as to his actual liability. Holds- worth V. JVakeman, 1 Dowl. 532. WITNESS. Commission to examine witnesses abroad.] The application for a commission to examine witnesses under 1 Will. 4, c. 22, must be promptly made after issue joined. Where there had been delay the court allowed the commission, but refused to postpone the trial. Brydges v. Fisher, 4 M. & Sc. 458. Where a defendant applies for a commission to examine witnesses abroad, it is not necessary that he should produce an affidavit of merits, if it appear that the apphcation is made bona fide, and not for the pur- pose of delay. Baddely v. Gilmore, 1 Mee. & W. 55 ; 5 Law J., Ex. 115; 1 T. & G. 369. It is not necessary, on applying for a rule nisi for a commission to examine witnesses out of the jurisdiction of the court, to state the names of the examiners, i^earow v. f^FAi/e, 5 Dowl. 713. An action for criminal conversation is a civil action within the lYvill. 4, c. 22, s. 4, in which the court will grant a commission for the examination of a witness out of the jurisdiction. It is not necessary that the affidavit, in support of an apphcation for such a commission, should state that exertions have been made to procure the attendance of the witness at the trial. Norton v. Lord Melbourne, 5 Law J., C. P. 343 ; 3 Bing. N. C. 67 ; 3 Scott, 398. Examination of witness on interrogatories in a revenue cause.] In an information by the attorney-general for penalties, the court made abso- lute a rule that the attorney-general should be at liberty to examine a material witness for the crown (who was too ill to attend the trial) on interrogatories, before the Queen's Remembrancer ; but would not make it part of the rule that his examination should be received as evidence on the trial. Attorney-General v. Reilly, 13 Mee. & W. 676 ; 2 Dowl. & L. 690. Commission to examine witnesses abroad — affidavit should state the 294 . WITNESS. names.^ The affidavit on which to ground a motion for a commission to examine witnesses abroad, must either specify the names of the witnesses proposed to be examined, or in some other way describe them. Giinter v. M'Tear, 1 Mee. & W. 201 ; 5 Law J., Ex. 115 ; 4 Dowl. 722, A rule to examine witnesses abroad, under 1 Will. 4, c. 22, s. 4, will be granted, if the names of some of the witnesses proposed to be exa- mined are mentioned in the affidavits, although the names of others are not. Beresford v. Easthope, S Dowl. 294. In an application to examine witnesses abroad by a commission, under 1 Will. 4, c. 22, s. 4, the court will allow the commission to go for the examination of witnesses not named in the rule, if the names of certain witnesses are given. Dimond v. Vallance, 7 Dowl. 590. Commission to examine witnesses for defendant in a revenue cause, not granted.^ In an information by the attorney-general, on behalf of Her Majesty's Customs, the court has no power, either by virtue of its general jurisdiction at common law, or under the 1 Will, 4, c. 22, at the defendant's instance, to direct a commission for the examination of witnesses. It will not use its power of postjjoning the trial for the purpose of compelling the crown to consent to such commission. Quaere, whether an application by bill on the equity side of the Court of Exchequer can now be sustained. The Attorney-General v. Bovet, 15 Mee. & W. 60; 15 Law J., Ex. 155 ; 3 Dowl. & L. 492. Examination of witnesses abroad at the suit of the crown.l In an action at the suit of the crown, the court has no power, under the 1 Will. 4, c. 22, at the defendant's instance, to direct a commission for the examination of witnesses. Reyina v. Wood, 7 Mee. & W. 571. Commission to examine witnesses abroad directed to judges of a foreign court.~\ A commission to examine witnesses, directed to the judges of a loreign court, may be issued without the usual clause, re- quiring the commissioners to be sworn. Ponsford v, O'Connor, 5 Mee, & W. 673. Commission to examine witnesses on interrogatories. '\ A commission to examine witnesses on interrogatories and cross-interrogatories, was sent out to Belfast, the commissioners being empowered " to put, or cause to be put additional questions, when it should appear to them to be necessary and proper." The defendant, when before the commis- sioners, abandoned some of his cross-interrogatories, and proposed to put additional questions, to which the plaintiff objected. The com- missioners proceeded with the examinations on such questions " sub- ject to the objections." At the trial, the answers to these questions were ruled to be inadmissible in evidence : — Held, that the ruling was right, as the commissioners ought themselves to have decided whether the questions were necessary and projier to be put, and not to have left that question for the determination of the court. Williamson v. Page, 3 Dowl. & L. 14; 1 C. B. 464. Where a witness has been examined before commissioners, the judge at the trial can exclude a portion of his answer to a cross-inter- WITNESS. 295 rogatory, from the consideration of the jury, as inadmissible, and retain the remainder. Tufton v. Whitmore, 12 Ad. & E. 370 ; 9 Law J., Q. B. 405. Examination of witnesses under a judge's order — reception of the evidence at trial.'] Witnesses examined under a judge's order, in expectation of their going abroad, are examined as much for one side as the other, and either party may use their evidence at the trial, if it be shown that the witnesses are abroad ; but it must be proved that they are abroad, and the statement in their depositions that they are going abroad is not sufficient for this purpose. Proctor v. Lainson, 7 C.°& P. 629. Witness's expenses, attorney not personally liable for.] The attorney in a cause is not personally liable to a witness whom he subpoenas to give evidence in the cause for his expenses of attendance. Robins v. Bridge, 3 Mee. & W. 114; 6 Dowl. 140. A promise by an attorney after trial to pay a witness a compensation for his loss of time, cannot, it seems, be enforced either by action or attachment. Bates v. Sturges, 2 M. & Sc. 172. Allowance of expenses to witnesses.] The allowance for witnesses IS from the first day of the assizes in special jury cases. Cosgrave v. Evans, 2 Dowl. 443, B. C. This ruling was confirmed in Gilliatt v. Gothard, MS. Ex.T.T. 1846; and in Huntingdon v. Grand Junction Railway, MS. Ex. M. T. 1846. It is a question for the discretion of the master, whether a witness ought to be allowed expenses for the whole time of his attendance at the assizes, or only a portion of it ; but where the master has decided upon it, the court will not review his decision. Piatt v. Green, 2 Dowl. 216. The master is, in general, sole judge of what witnesses shall be allowed on taxation ; and, therefore, where he had, in an action for libel, disallowed all witnesses to prove inuendoes, the court refused to interfere to make him review his taxation. Skelton v. Seward, 1 Dowl. 411. Witness's claim of his expenses previously to being exarnined.] A witness who is called in an action to depose to a matter of opinion, depending on his skill in a particular trade, has, before he is examined, a right to demand from the party calling him, a compensation for his loss of time ; and there is a distinction between a witness thus called, and a witness wlio is called to depose to facts which he saw. Webb V. Page, ] Car. & K. 23. — Maule, J. Witness not obeying a subpoena liable to an action.] The calling of a witness on his subpoena is matter of evidence only; and an action for not obeying a subpoena ad testificandum will lie though the de- fendant was never called upon it, if, from other evidence, the jury are satisfied that at the time he was wanted he could not have been present. The time he is wanted is when the counsel, by whom the cause is conducted, requires him to appear and give evidence. It is not necessary to the maintenance of the action that the jury should have 296 WRIT. been sworn ; it is enough if the plaintiff is ready to go to trial, and, in consequence of the absence of the witness withdraws the record. Lamoiit V. Crook, G Mee. & W. Gl5 ; 9 Law J., Ex. 253. CalUiKj witness on his subpoena.'] The counsel for the plaintiff" has a right, on the cause being called on, to have a witness called on his subpa'na, without swearing the jury. Hopper v. Smith, 1 M. & M. 115. A prochein amy may he a witness.'] A prochein amy is not a party to the suit, but simply a person appointed by the court to look after the interests of the infant and manage the suit for him, and therefore he is not within the exception to the general enactment in the stat. of 6 & 7 Vic. c. 85, s. 1, as a party individually named in the record ; and though he be liable to the costs, yet as that statute takes away all objection on the ground of interest, he is a competent witness for the plaintiff. Sinclair v. Sinclair, 13 Mee. & W. 640. To compel the attendance of witnesses before an arbitrator.] A rule to compel the attendance of witnesses and the production of docu- ments in their custody before an arbitrator under the 3 & 4 Will. 4, c. 42, s. 40, where the order of reference has been made a rule of court, is a rule absolute in the first instance. In re Guarantee Society and A. Levy, 1 Dowl. & L. 907, C. P. Costs of icitnesses on reference.] On a reference of a cause and all matters in difference, the costs of the witnesses attending the arbitra- tion are costs of reference, and not of the cause. Brown v. ISelson, 13 Mee.& W. 397 ; 2 Dowl. & L. 405. Witnesses priviler/ed from arrest while attending an arbitration.'} Where a cause is referred by a deed of submission between the parties, containing a clause that the submission may be made a rule of court, the attorneys of the parties and the witnesses are privileged from arrest during the period of their attendance on the arbitrator. Webb, P. O. V. Taylor, 1 Dowl. & L. 670, Q. B. Objection to the competency of a witness.] An objection to the competency of a witness may be taken at any period of his examina- tion. Jacobs V. Laybourn, 1 Dowl. & L. 352, Ex. An attorney, who has acted as advocate in the Sheriff's Court, can- not be heard as a witness in the same cause. Stones v. Bacon, 11 Jur. 44, Q.B.; S. C, Sto7ies v. Byron, 16 Law J., Q. B. 32. WRIT. Form of writ of summons.] The form of writ of summons given by the 2 Will. 4, c. 39, should be strictly followed. Smith v. Crump, 1 Dowl. 519. And if the royal style is given, it should be correctly set out. Hall V. Reddinyton, 9 Law J., Ex. 100; 5 Mee. & W. 605. Where the copy of writ of summons commenced, " William the WRIT. 297 Fourth," instead of " Victoria," it was set aside with costs, Drury v. Davenport, 3 Mee. & W. 45 ; 6 Dowl. 1G2 ; 7 Law J., Ex. 49. A writ of summons, dated on a Sunday, is a nullity, and the objec- tion is not waived by lapse of time. Hanson v. Shakelton, 4 Dowl. 48, B.C. A summons bearing date the day of the month is good, though the year is improperly described, or altogether omitted. Solomon v. Nain- by, 7 Dowl. 459, Ex. Where there are several defendants, the term "you" in the notice in the summons applies distributively. Englehurtv. Eyre, 2 Dowl. 145. The 17th section of the Uniformity of Process Act, as to attorneys declaring whether writs have been sued out in their names, applies both to serviceable and bailable process. Gilson v. Carr, 4 Dowl. 618. Description of plaintiff in a writ of summons.'] A writ of summons commanded the defendant to enter an appearance "at the suit of Henry Walker & Co. ;" and that in default, &c., " the said Henry Walker & Co, may cause an appearance to be entered for you." It was indorsed " the plaintitF claims," &c. : — Held, that the writ was regular, as the court could not judicially take cognizance that " Walker & Co." was not the name which the plaintifi' bore. Walker S,- Co. V, Parkins, 2 Dowl, & L. 982, Q. B. Writ of summons, description of defendant.] Where a defendant was described in a writ of summons as " R, S., of the city of Lon- don :" — Held, that the description was insufficient, although it was stated in the affidavits that sometime before the issuing of the writ he had abandoned his house, and had no regular place of abode, Semble, that he ought to have been described as of his late abode. Cotton v. Sawyer, 10 Mee. & W. 328 ; 2 Dowl. N. S. 310. It is not necessary to insert the addition of the defendant in the writ of summons. A defendant (an attorney) described in a writ of summons as of " Paper Buildings, Temple :" — Held, sufficient. Mor- ris V. Smith, 4 Law J., Ex. 184 ; 2 C. M. & R. 120. "Tufton Street in the county of Middlesex," is a sufficient descrip- tion of a defendant's residence in a writ of svimmons. Cooper v. W'Aea/e, 4 Dowl. 281. Indorsement of address of defendant on writ must he correct.] A writ directed to "J. H., of W. Street, Finsbury, in the city of Lon- don," set aside upon affidavit that such address was in Middlesex, and not in the city of London. King v. Hopkins, 13 Mee. & W. 085; 2 Dowl. & L, 637. The supposed residence of defendant is sufficient in a writ.] The de- scription of the residence of the defendant in a writ of summons is sufficient if it be the supposed residence. Windham x. Fenwick, 11 Mee. & W. 102. Insufficient description of defendant's residence on writ of summons.] Copy and service of the writ of summons set aside for insufficiency of the description of the defendant, as "of S,, near Maidstone, in the O 3 298 WRIT. county of K., but to be beard of at P.'s Coffee-house, Fleet Street, in the city of London," it ajipeariiig that he hved at B. Street, Maidstone, and not at S., althoufj;h constantly resorting to such coffee-house. Simpson V. Ramsey, 1 Dav. & Mer. 39C ; 5 Ad. & E., N. S. 371. Where a writ of summons described the defendant as " Edmund Garbett, of Wellinj^ton, in the county of Salop, but now of Middle- sex," such writ was held bad, for omitting to comply with the requi- sites of 2 Will. 4, c. 39, s. 1, which directs that in every writ of summons and copy thereof "the place and county of the residence or supposed residence of the party defendant, or wherein the party shall be, or shall be supposed to be, shall be mentioned." Dowries v. Gar- bett, 2 Dowl. & L. 945 ; 14 Law J., Q. B. 216. Name of a party in writ must be certain^ If a name on the face of the writ is naught or uncertain, the writ is bad, or containing no other description of the defendant than his surname, is irregular. Marget- son V. Tugghe, 5 Dowl. 9- Indorsement of defendant's address on writ.l The Uniformity of Process Act requires that the place and county of the defendant's actual or supposed residence shall be correctly stated ; but the court will not set aside the writ of summons, unless the defendant produces a positive affidavit that the residence has been misdescribed. Lewis v. Newton, 2 C. M. & R. 732 ; 1 T. & G. 72 ; 4 Dowl. 355. Indorsement of attorney's name on writ.l Where the indorsement of the attorney's name on the copy of the writ of summons omitted the words, " who resides at" before the place of abode :— Held, suffi- cient. Coppice V. Hunter, 8 Dowl. 504, B. C. A writ indorsed " M. & Co., agents for S.," without specifying the Christian names : — Held, sufficient. Pickman v. Collis, 3 Dowl. 429, Ex. An indorsement of the attorney's residence, "Southampton Build- ings :" — Held, insufficient ; but after the lapse of two months the objection too late. Rust v. Chine, 3 Dowl. 565, B. C. And " Great James Street, Bedford Row," is insufficient. Lloyd v. Jones, 5 Dowl. I6l, Ex. * A writ, indorsed with the name of tb.e firm of the attorney, used in carrying on the business, satisfies the 12th section of the 2 Will. 4, c. 39, though only one of them is alive, and an attorney. Hartley v. Rodenhurst, 4 Dowl. 748, Ex. Where a firm describe themselves on the back of a writ, as the agents for another attorney, stated to be the plaintiff's attorney, it is no objection that one of the firm appears in the declaration as the attorney. Armstrong v. King, 8 Dowl. 297. A writ of summons was thus indorsed — "This writ was issued by G. F. & S., of No. 1, B. R., London, agents for Mr. J. T., of Exeter, in the county of D., the plaintiff within named :" — Held, bad, inas- much as it neither showed that the writ was issued by the attorney for the plaintiff, nor by plaintiff in person, as required by the 2 Will. 4, c. 39, s. 12. Toby v. Hancock, 1 B. C. Rep. 207 ; 10 Jur. 1083; 16 Law J., Q. B. 33. WRIT. 299 Where the process was indorsed only with the name of the a^jent and not of the attorney immediately employed, the court held this irregular, and set aside the process. Shephard v. Shum, 2 C. & J. 632 ; 2 Tyrw. 742. The form of the indorsement on the writ of summons in the schedule of the Uniformity of Process Act, No. 1, is, " This writ was issued by, &c., attorney for the said A. B. :" — Held, that a writ was not bad where the indorsement was " attorney for the said plaintiffs." Hennah V. Wyman, 4 Law J., Ex. 200; 2 C. M. & R. 239; 3 Dowl. 673^. The indorsement on the writ of the name of an attorney who is not on the roll of the Court of Exchequer is not such an irrejiularity as will entitle the defendant to a stay of proceedings in toto ; iiut the court will direct the proceedings to be stayed until a proper attorney is appointed, on payment of costs by the attorney whose name is so indorsed. Constable v. Johnstone, 2 Law J., Ex. 25; 1 C. & M. 88 ; 3 Tyrw. 231. Description of the attorney's residence on a writ issued by him.^ The indorsement is sufficient, if the place of abode given be such as cannot mislead. Accordingly, a writ indorsed as having been sued out by "J. 11., 10, Gray's Inn Square, Holborn, attorney f^r the plaintiflf," was held good, though the county was not stated. Youlton v. Hall, 8 Law J., Ex. 147 ; 7 Dowl. 175. In the indorsement on a writ of summons, the residence of attorney stated thus : — " No. 1, Clifford's Inn Passage, Fleet Street, in the city of London," without mentioning the j)arish, is sufficient. Ardenv. Garry, 2 Scott, 186 ; and Arden v. Jones, 4 Dowl. 120. " Gray's Inn, London," is a good description of an attorney's residence, under the provisions of 2 Will. 4, c. 39. s. 12. Jelks v. Fry, 3 Dowl. 37. The omission of the word " London" in the indorsement on the copy of the writ : — Held, sufficient cause for setting aside the copy. Smith V. Pennell, 2 Dowl. 654, Ex. Indorsement of debt and costs on wi'it.l The 2 Reg. Gen. H. T. 2 Will. 4, as to the indorsement on process of the amount of debt and costs demanded by plaintiffs is not directory, but compulsory. Ryley v. Boissomas, 1 Dowl. 383. The court will not set aside process on account of the amount of the debt and costs not being indorsed upon it, according to the 2 Reg. Gen. H. T. 2 Will. 4, unless it appears on affidavit that the cause of action was a debt. Carwin v. Moseley, 1 Dowl. 432. In an action on a bail bond or a replevin iiond, it is not necessary to indorse the amount of debt and costs pursuant to 2 Reg. Gen. H. T. 2 Will. 4, and 5 Reg. Gen. M. T. 3 Will. 4. Rowland v. Dakeyne, 2 Dowl. 832. "The plaintiff claims 20^. debt with interest from the 10th of March last" is sufficient. Coppello v. Brown, 1 C. M. & R. 575; 3 Dowl. 166 ; and Seuly v. Hearne, 3 Dowl. I96, B. C. On a rule to show cause why the writ of summons should not be set aside for irregularity, on the ground that the amount of the debt and costs claimed by the plaintiff had not been indorsed on the writ : — Per 300 WRIT. cur., No indorsement on the writ of the amount claimed is necessary where the claim is for damages as well as for a debt. Perry v. Patcheit, 1 C. M.& R. 87. The rule requiring indorsement of the amount of debt and costs on the writ : — Held, not to apply to an action of debt for penalties for bribery, imder the Municipal Corporations Act, 5 & G Will. 4, c. 7G, s. 54. Davies v. Lloyd, 3 Mee. & W. 69 ; G Dowl. 173. An indorsement on a writ of summons, "the plaintiff claims 95/. 8i'. 6d. for debt, and £ for costs," is irregular. Treslovc v. Whiteclmrch, 1 Scott, 415 ; 8 Dowl. 837- The indorsement on the process was to pay the amount within four days from the " arrest hereon," instead of " service hereof." The court held this a fatal irregularity. Cooper v. Waller, 1 C. M. & II. 437 ; 3 Dowl. 167. Where a writ was in trespass on the case and the indorsement for a debt:— Held, bad. Richards v. Sluart, 10 Bing. 319; 3 M. & Sc. 774 ; 3 Law J., C. P. 37- Where a plamtiff, by his indorsement on the writ, claims a debt and interest, it is sufficient to state from what time he claims such interest without stating the rate at which he claims it. Allen v. Bussey, 1 B. C. Rep. 204. A qui tam action of debt for penalties under 6 & 7 Will. 4, c. 6G, is not within Reg. Gen. H. T. 2 Will. 4, r. 2, so as to require an in- dorsement of the amount of the debt on the writ of summons and copy thereof. Hobbs v. Young, 2 Dowl. & L. 474, Q. B. Indorsement on writ of sum claimed.'] The defendant having been served with a copy of a writ of summons, indorsed, " the plaintiff claims I50l. and interest thereon for debt, and 3/. 35. for costs," obtained a rule to show cause why the writ, copy, and service should not be set aside upon the ground that neither any specific sum for interest, nor the day from which it was claimed was stated : — Held, that the indorsement ought to have stated the day from which the interest was claimed, that the defect was an irregularity, and that the form of the rule was correct; and (it not being shown that the writ was regular) the rule was made absolute for setting aside the writ, copy, and service, with costs. Chapman v. Becke, 9 Jur. 1012, B. C. — Patteson, J.— 15 Law J., U. B. 5 ; 3 Dowl. & L. 350. Writ of summons, direction of, to defendant.'] Where a writ of summons was directed to the defendant, as of INewcastle-upon-Tyne, in the county of Northumberland, in which county it was served, instead of being directed, as it was alleged it should have been, to the defendant, of the town and county of the town of Newcastle-upon- 1'yne :— Held, that as the 2 & 3 Will. 4, c. 64 (Division of Counties Act) had added the town and county of the town of Newcastle, and several other townships, to the southern division of the county of Noithum.berland, and as the defendant had not made it appear that he resided out of the added townships, the direction of the writ was right, and a judge's order for setting it aside should be rescinded. Rippon V. Dawson, 7 Scott, 145; 8 Law J., C. P. 102; 7 Dowl. 247. WRIT. 301 Indorsement on writ of summons.'] The indorsement on a writ of summons, required by the Uniformity of Process Act, of the name of the attorney suing it out, must state for whom he is attorney. Ward V. Loyd and another, 10 Law J., Ex. 182. Indorsement on continuing writs.'] The indorsement on a second or subsequent writ of summons, issued under 2 Will. 4, c. 39, s. 10, to save the statute of limitations, must contain a memorandum, specify- ing the date, not only of the first writ, but of the return thereto. Williams v. Williams, 10 Mee. & W. 174. Altering writ after it is issued.] Where a writ of summons which had originally been issued into one county was afterwards (without being resealed) altered by the substitution of another, the court set aside the proceedings on payment of the debt without costs, although the defendant had before taking the objection obtained a judge's order for staying the proceedings, on his undertaking to pay the debt and costs, which order had afterwards been made a rule of court. Siycjers V. Sansom, 3 M. & Sc. 194. Amendivcj mesne jirocess^ Since the Uniformity of Process Act gives a particular form of capias, the court will not allow it to be amended. Colston v. Bernes, 3 Dowl. 253, Ex. Nor will the court allow the substitution of one cause of action for another. Mills v. Gossett, 1 Scott, 313, C. P. The copy of a writ delivered to the defendant upon his arrest, when it varies from the writ itself, is not amendable. Byfield v. Street, 3 M. & Sc. 407 ; 10 Bing. 227 ; 2 Dowl. 739. Amendment of indorsement on writ?^ A judge at chambers cannot alter the amount indorsed on the writ of summons so as to bring the case under 20/. to give the sherifF jurisdiction. Trotter v. Bass, 1 Bing. 51G; 3 Dowl. 407. Amendment of a writ of capias directed to the sheriffs of Middlesex.] A writ of capias and copy being directed to the sheriffs of Middlesex a judge at chambers ordered both to be amended by striking out the letter s. The defendant obtained a rule nisi to set aside the said order and to cancel the bail bond:— Held, that the judge had not power to order the copy served to he amended and made the rule absolute to cancel the bail bond, costs to be paid by the plaintiff, but no action to be brought. Moore v. Magan, MS., Exch. M. T. 1846. Amendment of ivrit of summons.] Errors in a writ of summons cannot be rectified after service, except when the action would be barred l)y the statute of limitations. Lakin v. Watson, 2 Dowl. G33, Ex. ; 4 Tyrw. 839 ; 2 C. & M. 685. And not even then by adding the names of a co-plaintifF. lb. Where a writ of summons was by mistake dated the 4th of A])ri], the praecipe being dated the 4th of May:— Held, that a judge had power to order an amendment of the writ, so as to make it correspond with the praecipe. Kirk v. Dolby, 6 Mee. & W. 636. 302 WRIT. The omission of tlie word " on" before the word " promises," in describinfr the form of action in a writ of summons, is immaterial. Cooper V. IVheale, 4 Dowl. 281. In the body of the copy of the writ of summons, the defendant was required to cause an appearance to be entered for him in " an action on the case, promises," the writ was set aside for irregularity. Youl- ton V. Hall, 4 Mee. & W. 582 ; 8 Law J., Ex. 147; 7 Dowl. 186. A writ of summons must contain the memorandum of its duration.^ A writ of summons is bad, and will be set aside for irregularity, if it does not contain the memorandum that it is to remain in force for four calendar months. Patterson v. Busby, 9 Law J., Ex. 16 ; 5 Mee. & W. 521 ; 7 Dowl. 868. Where service of a writ of summons has not been effected until after the expiration of four calendar months from the date thereof in- cluding the day of the date, the proper course is for the defendant to apply, to the court to set it aside, and not to treat the writ as a nullity. Hamp V. Warren, 12 Law J., Ex. 215. A writ must correctly describe the form of action.'] The writ was in trespass, but indorsed for a debt, and the declaration was in an action of trespass on the case on promises : — The court set aside the declara- tion and writ for irregularity, although no objection had been taken to the writ until the declaration had been filed. Edwards v. Dignam, 2 C. & M. 346; 2 Dowl. 240; and Thompson v. Bicas, 2 Dowl. 93; 3 Tyrw. 873. "Libel" is a sufficient description of the form of action in a writ of summons. Pell v. Jackson, 2 Dowl. 455, C. P. "An action of slander" is a sufficient description. Davies v. Parker, 2 Dowl. 537, B. C. Where the writ described the action as " an action of trespass on the case on promises," the court set it aside for irregularity. King v. Skeffington, 1 Cr. & M. 363. Insufficient description of defendant and of defendants residence.] A writ of summons described the defendant as " Pilbrow's Atmo- spheric Railway and Canal Propulsion Company, now or late carrying on business in King William Street, in the city of London." The company had been completely registered pursuant to the stat. 7 & 8 "Vic. c. 110, and No. 6, King William Street, London, was registered as their place of business. They afterwards discharged their secretary and clerks, and gave up their place of business, but no other place of business was taken or registered by them, and there were no means of serving the writ but upon a director: — Held, that the description of the residence of the defendant was uncertain and insufficient under the Stat. 2 Will. 4, c. 39, and also that the service of the writ upon a director, in the county of Middlesex, was bad, and that the person on whom it was served might avail himself of these grounds for setting it, and the service of it, aside. Pilbrow v. Pilbrow's Atmospheric Rail- way and Canal Propulsion Company, 16 Law J,, C. P. 11. A writ cannot be altered after service.] A plaintiflp cannot alter his WRIT. 303 writ after service ; and a notice not to appear to the copy of the writ first served will not cure the defect. Glenn v. Wilks, 4 Dowl. 322. Altering a writ from assumpsit to debt not allowed.'] Where a writ had been sued out in assumpsit, the court refused to allow it to be altered into debt, to include a claim on a bond, there being nothing to bar a separate action on it. Partridge v. Wallbank, 1 Mee. & W. 316 ; 5 Law J., Ex. 167. Amendment of writs allowed to save statute of limitations.'] On a rule to amend the alias and pluries writs of summons and the in- dorsements thereon, by indorsing on the said writs memoranda of the date of the first writ of summons and of the return thereto, and to amend the record and proceeciings in the cause accordingly; these amendments were proposed with the object of saving the statute of limitations : — Held, that the statute did not preclude the court from ordering the amendments and that the rule must be absolute on pay- ment of costs. Culverwell v. Niigee, 15 Law J., Ex. 308. The court will amend a writ of summons, although more than four months have elapsed since it was issued, by altering the cause of action from debt to assumpsit, on an aflSdavit that, if a fresh action were commenced, the statute of limitations would be a bar; but the court cannot amend the copy of the writ served, as they have no power over it. Eccles v. Cole, 8 Mee. & W. 537 ; 1 Dowl. N. S. 34; 10 Law J., Ex. 475. The court allowed the plaintiffs, assignees of a bankrupt, to amend the writ of summons and subsequent proceedings, by addmg the name of the official assignee as a plaintiflF, in order to save the statute of limitations. Brown v. Fullerton, 13 Mee. & W. 556; 14 Law J., Ex. 79. Mistake in teste of copy oftcrit.] A mistake in the year in the teste of the copy of a writ of summons, the writ itself being right, is a mere irregularity, which is waived if the defendant does not come to the court before the time for entering an appearance has elapsed. Edwards v. Collins, 5 Dowl. 227. In the copy of a writ of summons, served upon the defendant, the teste was wrong, it being the 18th April, 1830, instead of 18th April, 1837. The indorsement on the copy was correct and so was the writ itself. Upon being served the defendant applied to the plaintiff, re- gretted the expense incurred, and offered to pay half the debt and costs : — Held, that such conduct on his part amounted to a waiver of the irregularity in the previous proceedings. Briggs v. Burnard, 6 Law J., C. P. 216. Re-sealing defective writ.] If a defective writ is re-sealed, it ought to be dated of the day of re-sealing. Knight v. Warren, 7 Dowl. 663. But where a writ had been sued out to prevent the statute of limita- tions from being a bar to the action, but on account of some alteration in the writ it was obliged to be re-sealed, and the re-sealing was after the time expired, the court held it to be sufficient, as the re-sealing 304 WHIT. did not amount to a re-issuing of the writ. Braithwaite v. Lord Mont- ford, -2 Cr. & M. 408. Amendment of writ of summons in the description of the parties.^ A judge at chambers upon a summons having ordered the amend- ment of the writ of summons, appearance, subsequent proceedings, &c., by describing the plaintiffs as assignees of certain bankrupts and the defendants as pubhc registered officers, &c., upon motion to set aside the said order, the court held the amendment regular and refused a rule to show cause. Christie and another v. Bell and another, MS., Exch. E. T. 1847. Where several defendants reside in different covniies, two lorits of summons may issue.^ Where there are several defendants residing in two different counties, two writs of summons may be issued and dated on different davs. Crow v. Crow, 13 Law J., Q. B. 57; 1 Dowl. & L. 709. Two writs of summons or capias may issue against several defen- dants.^ It is not irregular to issue two writs, either of summons or capias, against several defendants for the same cause of action, pro- vided the writs be issued upon one praecipe, and bear date the same day. Angus v. Coppard, 3 Mee. & W. 57 ; 6 Dowl. 137 ; and Angus V. Medwin, 7 Law J., Ex. 10. Alias and i)luries writs of summons to save statute of limitations.^ Alias and pluries writs of summons to be available to prevent the operation of the statute of limitations should be indorsed with a me- morandum, not only specifying the date of the first writ, but also of its return. Where the indorsement on the alias and pluries was regular, with the exception that they did not contain tlie date of the return of the first writ, the court allowed the plaintiff" to amend, even after the defendant had pleaded the statute of limitations, and issue was joined. Mavor v. Spalding, 13 Law J., Q,. B. 185; 1 Dowl. & L. 878 ; and Williams v. Williums, 10 Mee. & W. 174. Under the Uniformity of Process Act there is no limited time for issuing an alias or pluries writ, or for entering continuances, except where the original writ is to be made available to prevent the operation of the statute of limitations. Nicholson v. Leman, 3 Law J., Ex. 133 ; 2 Dowl. 296. By the 2 Will. 4, c. 39, s. 10, where successive writs are sued out upon returns of non est inventus, to avoid the statute of limitations, such returns must be entered of record before the expiration of one calendar month after the return ; but the court held it was not neces- sary that the first writ should be actually served, or that there should be any bona fide attempt to serve it. Williams v. Roberts, 1 C. M. & K. 6/0; 3 Dowl. 512. Continuance of ivrits.~\ Writs of final process cannot, since the stats. 2 Will. 4, c. 39, and 3 & 4 Will. 4, c. 67, be continued by entries on the record, as under the old form, but they must l)e connected by being described as ahas and pluries writs ; and they need not be tested WRIT. 305 on the return day of the former writ, or within any particular time afterwards. A writ of mesne process, in continuation of a former writ, cannot be issued after twelve months from the issuing of such former writ. Harmer v. Johnson, 14 Mee. & W. 336; 14 Law J., Ex. 29'2. In an action on a bill of exchange, dated in May, 1838, the original writ of summons into Middlesex was issued on the 15th August, 1844 ; on the 14th of January, 1845, it was returned non est inventus, and-filed and entered of record ; on the same day an alias writ of summons was issued into Middlesex ; on the 10th June, 1845, a pluries writ of sum- mons was issued into Surrey, and served the same day, and the defendant duly appeared to it ; the plaintiif declared, and the defendant pleaded that the cause of action did not accrue within six years next before the commencement of the suit. The alias writ of summons was not in fact returned or entered of record till the 4th July, 1845. The Nisi Prius record was made up, stating only that the defendant was summoned to answer the plaintiff by virtue of a writ issued on the 15th day of August, 1844, and on its production at the trial the plaintiff obtained a verdict. The court held, that the provisions of the statute 2 Will. 4, c. 39, s. 10, had not been complied with, and made absolute a rule to amend the Nisi Prius record by stating the continuances according to the truth, at the costs of the plaintiff. Where a writ, issued within six years after the cause of action accrued, has not been duly continued, pursuant to the 2 Will. 4, c. 39, B. 10, the defendant is not bound to plead such continuance specially, but may take advantage of it under the general plea, that the cause of action did not accrue within six years next before the commence- ment of the suit; for this purpose, the last writ which is served is the commencement of the suit. Pratt v. Hawkins, 15 Mee. & W. 399. Irregularity in service cf writ of summons, waiver o/.] An irregu- larity in the service of the writ of summons is waived where the de- fendant on being served with the notice of declaration says, " I am sorry I have not paid the debt, I will make arrangement to do so :" — Semble, that it is too late to move to set aside a copy of a. writ of summons as irregular where an interval of sixteen days elapses between the service and the apphcation, although the enlarged time for plead- ing has not expired. Holt v. Ede, 1 Dowl. & L. G8, C. P. Service of writ of summons — two calls only allowed.'] The costs of two calls only, for the purpose of serving a writ of summons are allowed on taxation. Tupping v. Greenway, 9 Mee. & W. 224 ; 1 Dowl., N. S. 408. Service of the writ of summons necessary, where defendant is arrested on a capias for bail.] Where a defendant on his arrest under a judge's order deposited a sum of money in lieu of bail under the 7 & 8 Geo. 4, c. 71, and the writ of summons had expired, without service on the defendant, the court refused to allow the plaintiff to enter an appear- ance for the defendant. Vizetelly v. Wickoff, 2 Dowl. & L. 853, Ex. Service of writ of summons — entering appearance.'] The court will 306 WRIT. not, in future, allow an aj)])earance to be entered for a defendant un- less there lias been actual personal service of the writ ; it will not be enough to show that the writ has come to the hands of the defendant. Gor/cjs V. Lord Huntingtower, 12 Mee. & W. 503, and see Appear- ance, p. 20. Service of a writ on a public company. '\ Where the provisions of a local act for a railway in Ireland enacted that the service of process should be upon the clerk or secretary, &c., or by leaving at the office of the company, with an inmate, or at the last usual place of abode of the secretary, &c., or if not known, by personal service upon any agent, or any director :— Held, that service personally on a director in England was null and void. Evans v. Dublin and Drogheda Railway Company, 14 Mee. & W. 142 ; 2 Dowl. & L. 865. Service of writ of summons on an agent, not allowed^ Where an action is brought against a writer to the signet, resident in Edin- burgh, as administrator, the court will not allow service of the writ of summons on the person resident in London, who has acted as agent in obtaining the defendant's letters of administration, to be good ser- vice. Kerr v. Miller, 8 Dowl. 322. Service of writ upon a wrong party, proceedings set aside, with costs.'\ Where H., knowing he was served with a writ by a mistake, after three months' delay took steps preliminary to a judgment of non pros. ; — Held, that the proceedings should be set aside with costs. Richards v. Hanley, 19 Jur. 1057, B. C. — Patteson, J. Service of ivrit, regular ; writ irregular.'] An irregularity in the writ itself will not support a rule to set aside the service for irregula- rity, if the service was regular. Hasher v. Jarniaine, 2 Law J., Ex. 166; 1 C. &M. 408. Service of a writ in a wrong name, how cured.] If a defendant who is served with process in a wrong name, appears by his right name, the irregularity is cured. Bogue v. Milles, 4 Doug. 180. Service of writ, motion to set aside, when to be made.] A writ was served on the 25th October :^an apphcalion, on the 3rd of November, to set aside the service for irregularity (the 2nd being a Sunday) was held to be out of time, and that it should have been made on the 1st. Tyler v. Green, 3 Dowl. 439- Service of writ of summons, Easter intervening before appearance.] The rule of Easter Term, 2 Will. 4, does not a[)ply to entering an appearance ; and therefore where the defendant was served on Mon- day, the 6th April, and Good Friday fell on the 10th, the plaintiff was allowed to enter an appearance on the l6th. Harrisonv. Roberts, 10 Jur. 458, C. P. Service of writ may be set aside after appearance entered by plaintiff.] Entering an appearance by a plaintiff for a defendant, pursuant to the statute, is not a step in the cause sufficient to prevent the latter from WRIT. 307 applying to set aside an irregular service of the writ. Davis v. Sher- lock, 7 Dowl. 530. Service of writ by letter insufficient for appearance.'] The plain- tiff having, at the defendant's request, sen him by post a copy of a writ of summons, the receipt of which was not acknowledged until nearly a month afterwards, was held not to be entitled to enter an ap- pearance for the defendant, without the indorsement of the day of service, as required by the Reg. Gen. M.T. 3 Will. 4, s. 3. Atkinson V. Howell, 10 Law J., Ex. 64 ; 7 Mee. & W. 213. Service on the attorney conducting a cross-action, insufficient.'] Ser- vice of a writ of summons on the attorney of a defendant, who is pro- secuting a cross-action, cannot be made good service, although the defendant may be keeping out of the way to avoid being served. Par- meter V. Reed, 7 Dowl. 545. To set aside copy and service of writ, the affidavit need not describe the deponent as defendant.] It is not necessary that a party who has been served with a writ should state, in his afhdavit to ground an ap- plication to set it aside, that he is the defendant in the cause. Steven- son V. Thome, 13 Mee. & W. 149. Setting aside service of writ for irregularity.] A motion to set aside the service of a writ of summons, on the ground of an irregularity in the indorsements thereon, and that it is directed to a different county from that into which the distringas is issued, must be made within a reasonable time after the service thereof : — Semble, that eighteen days is an unreasonable delay in this respect, provided the defendant might have come earlier. Wright v. Warren, 3 M. & Sc. 163. If a copy of a writ is served in vacation, an objection to it for irregu- larity must be taken in vacation, if there is time for that purpose. Hinton v. Stevens, 4 Dowl. 283. If a defendant seeks to set aside proceedings, on the ground of not having been served with process, it must appear by his affidavit that he is the defendant in the cause. Johnson v. Smallwood, 2 Dowl. 588. Service of writ under a local court act at the residence of defend- ant.] An act of parhament establishing a local court enacted that mesne process might be served on the defendant either personally or by leaving the same at the dwelling-house, lodging, place of abode, &c. of the defendant : — Held, that it was sufficient to leave the process at a lodging-house where the wife of the defendant was living, though the defendant himself, a seafaring man, was absent on a voyage, and had been so for six months. Culverson v. Milton, 2 M. & R. 200. Writ, copy and service of, set aside, for omitting the name of court.] Where the court was omitted to be mentioned in the copy of the writ, although tested in the name of the Lord Chief Baron, the copy and service set aside ; and being the ])arty served, it was no objection that in his affidavit his residence was differently described from that in the writ. Stevenson V. Thome, 13 Mee. & W. 149 ; 2 Dowl. & L. 230 ; 8 Jur. 518. 308 WRIT. Service of icrii of summons in a wrong county, accepted by defendant.'} Where a writ of summons was served in county A. instead of county B., the defendant's oflice being in the former county, but his dwelhng- house m the latter (and which was the residence stated in the writ), and upon such service the defendant tlianked the attorney's clerk for calHng upon him at his office instead of his dwelhng-house, and said that he would attend to it : — Held, that such service was regular. Rumball V. Unic, 10 Jur. 415, C. P. Writ served in ivrong county!] A party seeking to set aside the ser- vice of a writ of summons, on the ground of its having been served in the wrong county, must state positively that the place of service is not within the county into which the writ is issued, or within the pre- scribed distance from the boundary thereof ; and it is not sufficient to state that he has been informed and believes tliat the place of service is more than half a mile from the county into which the writ issued. Harrison V. Wray, 11 Mee. & W. 815 ; 1 Dowl. & L. 366. Writ served in wrong county, service set aside.'] Upon a motion to set aside the service of process served in a wrong county, the affidavit stating it to have been more than 200 yards from the boundaries, held sufficient, without going on to allege that there was no dispute as to them. Martin v. Granger, 2 Dowl. & L. 268 ; 8 Scott, N. S. 367. An affidavit to support a rule to set aside the service of process for irregularity, for service in a wrong county, must negative a service on the confines of the projier county. Coulson v. King, 1 Law J., Ex. 149 ; 2 C. & J. 474. The court set aside the service of a writ of summons, defendant being described therein as " of Bristol, in the county of Gloucester," and the service having taken place in the city of Bristol, in a place not within the county of Gloucester, or within two hundred yards of the boundary. Levi v. Perratt, 2 C. B. 345 ; 15 Law J., C. P. 4. Setting aside service copy and service of writ.] An application to set aside " the copy of a writ of summons served on the defendant," is nugatory. The application should be to set aside the service, or the copy and service. Hall v. Redington, 5 Mee. & W. 605 ; 9 Law J., Ex. 100. To set aside the service of a writ of summons the application must be made within the eight days hmited for the defendant's appearance. Child V. Marsh, 3 Mee. & W. 433 ; 7 Law J., Ex. 197 ; 6 Dowl. 576 ; and Davis v. Sherlock, 7 Dowl. 530. Where there is an irregularity in the copy of a writ of summons served, the motion should be to set aside the copy and service, or the service, and not to set aside the copy served. Crow v. Field, 8 DowL 231, Ex. If the service of a writ of summons is irregular, a rule to set aside both service and copy of the writ does require too much. Argent v. Reynolds, 6 Dowl. 480, B. C. A defective writ cannot be treated as a nullity by plaintiff ^ A plain- tifi" cannot lodge a detainer against a defendant, and then laaving, on WRIT. 309 the ground of a defect in the writ, treated it as a nullity, lodge a second detainer against him. Gadderer v. Sheppard, 4 Dowl. 577. Writ not personally served — motion to set aside proceedings.'] On an application to set aside proceedings, it being sworn that there had been no personal service on the defendant of any copy of the process, the court held this insufficient, for not going on to swear that it did not come to his possession or knowledge. Phillips v. Ensell, 1 C. M. & R. 374 ; 4 Tyrw. 812 ; 3 Law J., Ex. 338. If it be left in doubt by the affidavits on both sides, whether there was a sufficient service or not, the court will not interfere. Morris v. Coles, 2 Dowl. 79, Ex, Setting aside either the writ or service for irregularity.'] Where there is an irregularity in the ser\'ice of a writ of summons, the de- fendant may apply for a rule in the alternative to set aside either the writ or the service. Dawson v. Willis, 6 Jur. 1068, Ex. Writ issued into a county palatine.] A writ was directed to the chamberlain of the county palatine of Chester : — Held, that service was irregular without the intermediate step of procuring his mandate to the sheriff. Earl of Shreivsbury v. Haycraft, 6 Bing. 194. Payment of amount indorsed on irrit — subsequent costs.] The debt and costs indorsed on a writ of summons were received by a clerk of plaintiff's attorney, after the expiration of the four days: — Held, that the attorney, not having offered to return the money, was not entitled to go on with the action for the recovery of further costs. Hoddiny V. Sturchfield, 7 Man. & G. 957 ; 2 Dowl. & L. 596 ; 14 Law J., C. P. 33. Setting aside writ of summons for irregularity — appearance entered after notice of motion.] Where the copy of the writ was served on the 6th, and on the 13th the plaintiff had notice of a motion to set it aside for irregularity, which was to be drawn up on the following morning, before which the plaintiff entered an appearance and filed his declaration : — Held, that he did so at his own peril after the notice, and that the defendant was entitled to object at any time before the expiration of the period for entering an appearance. Tiling v. Hodgson, 13 Mee. & W. 638; 2 Dowl. c^ L. 655 ; 14 Law J., Ex. 115. Writ of capias — description of defendant .] Where the defendant was described in a writ of capias, issued under 1 & 2 Vic. c. 110, s. 3, as " Mortlock," and in the copy served upon him as " Mortlake," the Court of Queen's Bench refused to discharge him out of custody on the ground of variance. Macdonald v. Mortlock, 2 Dowl. & L. 963; 14 Law J., Q. B. 244, B. C— Coleridge, J. A defendant whose name was Cocken, was arrested on a capias against him by the name of Cocker ; he gave a bail-bond to the sheriff in the name of Cocken, sued as Cocker: and the bail-bond being afterwards assigned to the plaintiff, he declared thereon against the defendant as Cocken, sued by the name of Cocker. The defend- 310 WRIT. ant pleaded that no such writ as that stated in the declaration was issued against him. It was admitted that he was the real defendant. The plaintiff was nonsuited ; but the court set aside the nonsuit, and ordered a verdict to be entered for the plaintiff, because in point of fact there was a writ afi;ainst the defendant by the name of Cocker. Finch V. Cocken, 3 Dowl. 678, Ex. Writ of capias — description of defendant's residence.^ Where na residence of the defendant is stated in the writ of capias, it is void, even though the plaintiff is not acquainted with it. Ward v. Watts, 5 Law J., Ex. 16ii2^X£i&Ii'S CHil.3<7CERY PRACTICE. 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" The peculiar feature of Mr. Miller's ' Orders in Chancery,' that, indeed, to which it is m.ninlv iniiebted for the kindly reception it has found, is the very con- venient classification of the Orders under distinct headings, arranged ALPHABETICALLY, so that the practitioner Is enabled to lay his linger in a moment upon all that relates to the subject-matter under his consideration. To add to the completeness of the work, notes are appcndedof all the decisions of the Courts upon the construction of the various Orders. " An .\ppendix presents the Orders in erirnso; to these reference is made in the alphabetical Analysis, so that if a doubt arises as to the construction, the very words mav readily be cited." * * * •' His volume is made, in fact, a sort of CONDENSED Code OF Chan- cery Practice."— Law Times, Nov. 15, 1815. In 2 vols, royal 12ino. price .-CI 18s. board!. GRANT'S CHANCERY PRACTICE. The Practice in the High Court of Chancery; including Ap- peals to Parliament, and Proceedings in Lunacy, with official Forms, Pleadings, Costs, &c. By hording Grout, Solicitor of the Court. The Fifth Edition, entirely re-written ; and including the New Orders of May 8th, 1845. STEVENS AND NORTON. In royal 8vo. Vol. I. price £1 Us. 6d. boards. SPENCE ON THE EQUXTi^BXiE JURISSXCTZOSr OF THE COURT OF CHAlffCEZlV. The Equitable Jurisdiction of the Court of Chancery ; com- prising its Rise, Progress, and Final Establishment j to which is preti.xed, with a view to the elucidation of the main subject, a concise Account of the leading Doc. trines of the Common Law, and of the Course of Procedure in the Courts of Com- mon Law in regard to Civil Rights, with an attempt to trace them to their sources, and in which the various alterations made by the Legislature down to the present day are noticed. By George Syence, Esq., one of Her Majesty's Counsel. " Now the author of the book before us has at least this merit, that he has in- vestigated with most surprising labour all the environs of his main subject. The extent to which this labour has been undertaken will be understood by the fact, that this bulky, closely-printed volume— and there never was less bookmaking in any book than in this— is entirely devoted to in fact the introductory part of his work." » * * " The historical part reaching, as appears from a passage we have already quoted, only as far as the reign of Charles IL, though a good deal of general law is introduced, which is carried down to the present times." * * * "The reader, however, will be surprised at the mass of information which it contains ; all the principal branches of learning are explored."— Law M.^GAZINE, N. S., No. 8. " Great thanks, then, are due to the lawyers who explore, for the benefit of their brethren, the history of the law, sacrificing to the study of legal antiqua- rianism not only their rest, hut that which is even dearer to Englishmen, the acquisition of wealth. Mr. Spence has entitled himself to these thanks by the production of the volume now before us, in which we find, as the result of in- quiries that must have been painfuUv laborious, a deeply interesting account of the origin and gradual growth of the Court of Chancery and of its equitable prin- ciples."— Tvrist, Julv4th, 1846. ^' We cordially hail the appearance of Mr. Spence's work on the Court of Chancery, which is undoubtedly a verj- valuable contribution to our stock of legal literature. It displays an eminent degree of learning, much laborious research, and very sound and accurate judgment."— Legal Observer, June 27, 1846. " This work has a far wider interest than most of those that invite the attention of a legal periodical. It is something more than a mere Law Book. Every lawver who deserves the name must read it, and every man who desires an insight into the rise and progress of our social and political fabric ought to do so. Vast industry has been bestowed upon tiie coiiection of the materials, sound judgment has been exercised in the selection of the valuable from the worthless, and the skill of an accomplished writer has been exhibited in the manner of pre- senting them to the reader. Although extremely learned, Mr. Spence's pages are never dull or dry. It is a work which every lawyer will place upon his shelves, not for reference only, but to be read and studied from the beginning to the end. To the law student especially must it be commended as the best intro- duction to the history of the law yet oflered him. It should be read immediately after ' Blackstone,' and before he enters upon books of practice ; for when he has learned the origin of the courts, of their jurisdiction, and of their forms of pro- cedure, he will find them more readily committed to memory, and will see good reasons for many things which otherwise might appear to him meaningless and absurd."- Law Times, June 27th, 1846. *»* The firiit nnrt of the Second Volume, u'hich u-ill be first published, will comprise the Doctrines as to Modern Trusts, express, and by opera- tion oflaw— The Administration o_f Assets— Charities —The Equitable Rights oj Married Women— The Doctrines of the Court as to Mortgages, and the jurisdiction of the Court as to Infants. The Second Part tvill contain the remaining subjects of the First Folume, from Chapter XVI. to the end of Book III., and will spceiUlij folUtw. At the end of each suhjrrt the rules of Practice and Pleading peculiarly appliatble to such subject, (lud thf course to be pursued in Interlocutory Ap- plirotions, as for I'nymiut if /m/m-// into Court, tkc. will be shortly stated. The intention being to ijirc a summary of the Doctrines of tfte Court of Chancery on each head of its Jurisdiction, and to jioint out the course trhich : each party has to pursue to obtain or to secure his rights in each particular A Review and Analysis of the First Volume, by Professor Mittermaier, j taken front the Crrmlin Critical Review, printed unifoiin tcith the work, ] may be obtained by purcJuisersfrom the Publishers. I In 12mo. price 12s. boards. ORDERS IN CHANCERT. The Orders of the High Court of Chancery, from Hilary Term IS2H to Trinity Term 184.'), as at present applicable to the Practice, with the Cases decided under each Order. By ii. L. Swijt, Esq., of the Middle Tem- ple, Bairister-at-Law. "The utility of this work will be apparent from a perusal of its title-paRC. The orders now in force are collected and arranged according to their sulijects in alphabetical order, and appended to each are all the reported decisions upon them. A copious index aftbrds a further means of reference. Mr. Swift has executed his task with diligence."— Law Times. Price 21s. cloth. DAX'S COSTS. The New Book of Costs in the Superior Courts of Common Law at Westminster; also Bankruptcy and Conveyancing. By Edward Thomas Dax, of the Exchequer Office, Gentleman. Inl2mo. Price 8s. hoards. SMITH'S nXAM-TTAXi OF EQUITV JTURISPRVDENCE. A Manual of Equity Jurisprudence, as Administered in Eng- land, founded on the Commentaries of Joseph Story, LL.D., and comprising in a small compass, a numerous collection of Points constantly occurring in Chancery and Conveyancing, and in the general practice of a Solicitor. Ry Josiah If^. Sinith, B. C. L., of Lincoln's-inn, Barrister-at-Law. *«* " A Manual especially adapted to the exigencies of a solicitor's practice." — Jurist, No. 465, In 2 vols, royal 8vo. price £2 8s. boards. VAN HEYTHUTSEIT'S (F. Ta.) EQUITY BRAFTSMAN ; Being a Selection of Forms of Pleadings in Suits in Equity. Second Edition, revised and enlarged, with numerous additional Forms and Practical Notes. By E. Hughes, Esq. 1828. In 8vo. price 13s. boards. SISSET Oir ESTATES FOR IiIFE. A Practical Treatise on the Law of Life Estates, Estates Tail after Possibility of Issue, Curtesy, Uower, Estates pur auter vie, and their incidents, especially with reference to the subject of Waste and Merger. By .'Indrew Bisset, Esq., of Lincoln's-inn, Barrister-at-Law. "Mr. Bisset has earned a sound, if not an extensive reputation by his very learned work on Estates for Life, pubhshed in 1842."— Jurist, No. 532, March 20, 1847. STEVENS AXD NORTON. In 8vo. price 18s. BISSZST ON THE IiAW OF PAI^TTTERSHZP, ItAIZ.- IVAY AUTD OTHER JOIM'T-STOCK COMPASJIES. The Law of Partnership, including the Law relating to — 1. Ordinary Partnerships. 2. Joint-Stock Companies before 7 Si 8 Vict. c. 110. 3. ioint-Stoclf Companies within T & 8 Vict. c. 110, not requiring the authority of Parliament. 4. Railway and other Joint-Stock Companies requiring the au- thority of Parliament and within 7 & 8 Vict. c. 110, for some purposes. 5. Banking Companies. The law of Railway and other Joint-Stock Companies is fully considered, together with the bearing thereon of the most recent cases and the operation of all the recent statutes. Tlie Appendix contains precedents of partnership deeds, requisites for deeds of settlement presented for complete re- gistration, and all the statutes relating to Railway and Joint-Stock Companies. By Andrew Bisset, of Lincoln's-inn, Esq., Barrister-at-Law. " Mr. Bisset has earned a sound, if not an extensive, reputation by his very learned work on Estates for Life, published in 1842. In the work before us he has treated a subject of much more practical and general interest with equal al)ility and success ; and he has done this in a singularly small space, yet with no sacrifice of perspicuity or completeness. Indeed, we should not have believed, had we not witnessed the success of the experiment, that the law of partnership could be thoroughly expounded within the compass of 176 pages, which is the extent of the first part of the work, devoted to the law of ordinarj' partnerships. " As a specimen of the succinctness of our author's style, which, to give it the highest praise that a text writer can desire, reminds us of ' The Compendium of the Law of Real Property,' we extract the first four paragraphs of the book. * ********* The second part of the work will be peculiarly acceptable to the profession, who have hitherto been unfurnished with anv treatise on the law of Jomt-Stock Com- panies."— The Jurist, No. 532, March 20, 1847. In 2 vols, royal 8vo. MADDOCK'S EQUITY. A Treatise on the Principles and Practice of the Court of Chancery, under the following Heads: — 1. Common Law Jurisdiction of the Chancellor. 2. Equity Jurisdiction of the Chancellor. 3. Statutory Jurisdiction of the Chancellor; and Delegated Jurisdiction of the Chancellor. The Third Edition, with very great Additions. By Henry Maddock, Esq., of Lincoln's- inn, Barrister-at-Law. In 8vo. price £1 Is. boards. HXirBMCARCH ON* PATEirTS. 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In 2 vols, royal 8vo. price £2 4s. boards TEAHNH'S REIVIiillflSEnS ANT> XSXECUTORV DE- VISES, X^riTU BUTIiER'S MOTES, AIMS SIVEITH'S EXECUTORir XN-TEKESTS. An Essay on the Learning of Contingent Remainders and Executory Devises. By Charles Feiirne, Esq., Barrister-at-Law, of the Inner Temple. The Tenth Kriition, containing the Notes, Cases, and other matter added to the former editions. By (Jharlcs Butler, Esq., of Lincoln's-inn, Bar- rister-at-Law. With an Original View of Executory Interests in Heal and Personal Property. By Josiah W. Smith, B.C.L., of Lincoln'sinn, Barrister-at-Law. The Original View forms an entire t^olutne of i^i pages, exclusive of the Analysis and Index, and comprises about lUO definitions, and about 3110 rules, besides a great number of explanatory and other observations ; togetlier with abstracts of about 30endious substitute for the same. In Andrews v. Andrews, Times, March 15, 1845, Sir J. L. Knight Bruce, V. C. 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