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528

Digested Index to the Cases Reported.

resford

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LEGACY DUTY.

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Page 437

4. On an application for leave to enter up in a wrong name, is a nullity. Warne v. Bejudgment on an old warrant of attorney, proof of the defendant's having been seen alive within twelve days, is sufficient to entitle the plaintiff' to the rule. Phillips v. Waters. Page 213 5. The notice of declaration not being personally served on the tenant in possession, his subsequent admission of its receipt will be

sufficient. Doe v. Roe..

.. 258

6. Judgment as in case of a nonsuit may be obtained, notwithstanding issue shall have been joined seven years before. Cromer v. Brown 117 7. A letter having been received in the handwriting of the defendant, it is sufficient evidence that he is alive, in order to sign judg. ment on an old warrant of attorney. Gray v. Withers 404 8. Judgment may be signed on an old warrant of attorney, notwithstanding the defendant's being insane. Pigot v. Killick.. 117 9. Although a plea may be insufficient in point of law, the Court will not set it aside and suffer judgment to be signed as for want of a plea. Cooper v. Jones, bail of Sternberg 324 10. In order to obtain judgment on an old warrant of attorney, a defendant must not only be stated to have been "seen" within a reasonable period, but to have been seen "alive." Chell v. Oldfield . 403 11. The production of an office copy of the due execution of a warrant of attorney, will be sufficient to obtain a rule to sign judgment thereon. Webb v. Webb. 325

and sent to the correspondents of the executors Legacies bequeathed by a testator in India, in this country, for payment to the legatees here, are not liable to the legacy duty. Logan

v. Fairlee

LUNACY.

181

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12. It is necessary to produce an affidavit 3. A court for the recovery of small debts of the defendant's removal out of the jurisdic- having been granted by charter, it is no antion of the Court of Common Pleas at Lancas-swer to a rule nisi for a mandamus commandter, besides a certificate of the prothonotary of ing the holding of the Court, that it had not the Court, and of the amount for which judg- funds to support it. Rex v. Mayor of Wells. been held for 200 years, or that there are no

inent is recovered, in order to obtain execution
thereon. Duckworth v. Fagg
. 437

MARRIED WOMAN.

387

rate use of an unmarried woman, independent 2. Property was given in trust for the sepaof any husband she might marry, with a clause against anticipation, and also a form of appointment over the principal, to take effect only after her death, and in default of appointment and of children,' then over. The woman married and appointed the fund to the husband. The Court will not give effect to that appointment so as to transfer the property to the husband during the wife's life. Stiff v. Everell.

13. If the fact of a defendant having been seen alive within ten days, is shewn on the affidavits, a rule for judgment on an old war- 1. Circumstances under which the anticiparant of attorney may be obtained. Krell v. tion clause in a will does not prevent a charge Joy. 325 by husband and wife. Johnson v. Freeth 387 14. An action having been brought for debt, and settled by consent of both parties, but judgment having been entered up by the plaintiff, contrary to good faith, the Court will grant a rule to set aside the judgment. Skeates v. Short 213 16. Judgment having been obtained in the Court of Great Sessions, abolished by the acts 11 G. 4, and 1 W. 4, c. 70, and removed into this Court, and a scire facias issued, a plea that an affidavit in verification of the amount of debt claimed should have been made by the plaintiff, held bad, on demurrer, as it involved the practice of the Court; and the only mode of taking advantage of the objection was stated to In no case, where the amount of debt is disbe by application to the Court. Howell v.puted, can an equitable mortgagee have a decree for sale, without taking an account of what is due. Nor can he deprive the mortgagor of the benefit of the usual indulgence of six months to redeem the mortgaged premises. Mellor y. Wood.

Bowers

498 18. A defective plea having been delivered and judgment signed as for want of a plea, the judgment is irregular, if no rule to plead has been given. A rule to plead, being taken out

MORTGAGE.

305

496

Digested Index to the Cases Reported.

529

OUTLAWRY. |cording to the terms of the rule of H. T. 4 W. 4; and the plea of "never did owe" was thereAlthongh a defendant shall reside in Mont- fore deemed bad on demurrer. Smedley v. gomeryshire, if the venue of an action be laid Joyce Page 484 in London, and the writ of capias issued to the 8. The irregularities in the writ of ca. sa., sheriffs of that city, the subsequent proceed-that it is issued into the wrong county, and ings to outlawry shall be issued to the same that it is made returnable before it is deliofficer. Morris v. Davies .. Page 101 vered at the office of the sheriff, may be taken advantage of by motion, as well as in the pleading. Laporie's Bail 308

PATENT.

Upon argument on demurrer, to a bill to restrain an infringement of a patent, it is a departure from the practice of the Court, to direct an action at law. The possessor of a patent already established by action, is entitled to an injunction until answer, without being put to establish his patent by action. Kay v. Marshall 304

PLEADINGS (COMMON LAW.)

1. A Judge is entitled to certify to deprive the plaintiff of his costs, in an action qu. el. fr. under the 43 Eliz. c. 6, s. 2, the whole record and evidence at the trial being considered, notwithstanding the defendant having pleaded Not Guilty, which is a special plea under the New Rules of Pleading, by which the case is taken out of the operation of 22 & 23 C. 2, c. 9, s. 136. A plaintiff having recovered only as to part of his cause of action, is still entitled to his postea. Smith v. Edwards. 403 2. The plea, in auswer to a declaration setting forth the malicious use of slanderous words, not denying the malice, but merely asserting the truth of the words, held bad, on demurrer. In an action for slander, where words are in themselves actionable, an allegation of special damage is improper and bad. Smith v. Thomas. 274 3. Evidence of payment cannot be given under a plea of non assumpsit, in bar of an action. On moving for a new trial, the postea is supposed to be in Court, and no affidavit of the pleadings is therefore necessary This rule applies to causes tried before the under-sheriff, as well as those tried before a Judge at nisi prius. Milligan v. Thomas. 452 4. The Court will permit the defendant to plead specially, where it shall appear doubtful that a statutable objection can be taken under the plea of non assumpsit. Smith v. Dixon.

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9. In an action for use and occupation, the fact of the premises being mortgaged by the plaintiff, and of the defendant having received notice to pay the rent to the mortgagee, may be given in evidence under the general issue, it the rent sought to be recovered accrued due after the service of the notice. If otherwise, however, the fact must be specially pleaded. Waddelove v. Barnett

357

10. A declaration must be entitled of the Court on its face, notwithstanding it shall be so entitled on the back. Kipling v. Watts 86

11. In an action for assault and battery, if in the defendant's plea of son assault demesne, the word "and," or a comina only shall ap pear to be omitted in connecting the denial of the battery with that of the alleged assault, the Court will hold it to be a clerical error. Blunt v. Beaumont . . 103

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12. A declaration with particulars having been delivered, with a limited time to plead, but fresh particulars being afterwards served on the defendant, the period for pleading is not extended thereby. Jones v. Fowler.

136

13. Demurrer to a plea, on the ground that, though it admitted the delivery of goods, and alleged the rescinding of a contract pursuant to which the goods had been delivered, it did not allege accord and satisfaction, or a release Edwards v. Chapman

231

14. In assumpsit for money had and received, the defendant pleaded that the money was the produce of goods deposited with him as security for any advances he might make to two persons, who, it turned out, were conjointly with the plaintiff proprietors of the goods. The goods were sold by defendant according to the terms of his agreement, and the action brought by the plaintiff for the produce of the sale. The plaintiff replied, that the defendant promised to pay the value of the goods on demand, but he had broken this promise. He also now assigned, that the ac388 tion was for the produce of certain other 5. In an action of debt, a plaintiff having goods. On demurrer, the replication was held replied nunquam indebitatus to a set-off, pleaded bad for duplicity, as also the plea, as amountand proved by the defendant, cannot give evi-ing to the general issue. The replication of dence that the amount so claimed was paid. de injuria, was likewise not applicable to the Brown v. Daubeny plea. Solly v. Neish.

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306

6. Proceedings having been taken on a bail bond where no default has taken place, a rule granted on that objection must be against the writ of summons itself, and not against the service. The objection, however, might be pleaded in bar to the action. Edwards v. Danks.

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. . 134 15. A plaintiff having included the names of two defendants in a capias, must declare against both at the same time, if both are in custody; but if one only is in custody, he cannot declare against him separately. Carson v. Dowding ·

134 375 16. Where the Court will not interfere to 7. In debt, the plea of "never was indebt-order counts to be struck out of a declaration. ed" must be pleaded in the general issue, ac- Thornton v. Whitehead

. 214

VOL. XI.

2 N

530

Digested Index to the Cases Reported.

17. A plaintiff having had notice of a pro- | under the compulsory clause of the Lords' posed amendment in a defendant's plea, before Act, having expired on the first day of term, the examination of a witness who has gone it was held that the prisoner could not be abroad, cannot afterwards object to the alte- brought up until the following term. Brixton ration, on the ground that the examination v. Squires Page 436 was conducted to suit the state of the record And see SETTING ASIDE PROCEEDINGS, 4. at that time. Hollingsworth v. Briggs. Page 308 18. De injuria will for the future be allowed to be replied in actions of assumpsit, when it is applicable. Griffin v. Yeates 309 And see ARBITRATION, 5. BANKRUPTCY, 2. BILL OF EXCHANGE, 1, 2, 6. JUDGMENT, 15.

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1. A supplemental bill should not state facts which were known, but not brought before the Court on the hearing of the original suit, and it should shew a transmission of the suit. Wilson v. Todd 99 2. Assignees of a bankrupt may in that character file a bill in equity without the consent of the creditors; and that principle is now so well established, that a plea to a bill on that ground will be overruled with costs. Gerothwohl v. Cockrane 258

POOR LAWS.

1. The 76th section of the New Poor Law Act does not prevent a parish from giving notice of appeal against the removal of a pauper, after the expiration of 21 days from the making the order of removal. Rex v. Justices of Leicester 372

SCI. FA.

1. The Court will not make a rule for quashing a writ of sci. fa., applied for by the plaintiff, absolute in the first instance, unless good grounds are shewn. Ade v. Stubbs. 62

2. On a plaintiff's application to quash a writ of sci. fa., the rule will be nisi in the first instance. Ade v. Stubbs . . 117

SERVICE OF PROCESS.

1. The Court will not make a rule absolute which has not been personally served; but if it appears, that the person who is to be served keeps out of the way, the Court will grant an enlargement of the rule. Rotch v. Laing. 272

2. In order to make service of a rule on the clerk of an attorney, calling on the latter to refund certain money overpaid to him by his client, good service, it will be necessary to shew the number and dates of the applications at his office, as well as the reasons for believing that the attorney cannot be personally served. Hinton v. Dean . . 391

3. The service of a writ of summons being irregular, the defendant is not bound to move to set it aside until the notice of declaration be served, as he cannot know the plaintiff intends to proceed until then. Davis v. Lawton.

259

2. The provision of the Mary-le bone Vestry Act, whereby 21 days notice of proceedings is required, applies to torts only, and not to 4. The plaintiff's having requested that a assumpsits. A parishioner having been guar-particular bailiff might be employed to serve a dian of the poor at the time of the contract fi. f., does not relieve the sheriff from his being made for which the action was brought, duty in returning the writ, by constituting the but having since vacated the office, is a com- officer a special bailiff. Neither has the fact petent witness under the act. Fletcher v. of a compromise between the parties, or of a Greenwell 47 claim having been made by the landlord for rent, that effect. Balson v. Meggatt. . 373

PRISONER.

1. A defendant being in custody, service of a rule on the turnkey is good service. Moore v. Newbold 307 2. A prisoner in custody in the Fleet Prison for debt, but who is confined in the strong room, provided under the Rule of Court of H. T. 3 G. 2, in consequence of a charge of forgery being preferred against him, may be detained there for safe custody, although he be not actually found guilty of the offence alleged. Osborne v. Angle . 167 3. It is necessary for a prisoner, seeking his discharge under the Small Debtors' Act, where the plaintiff is dead, to shew that there is no personal representative, before service of notice on the plaintiff's attorney will be deemed sufficient. Ex parte Richer .. 100

4. To charge a defendant in custody of the marshal with an attachment for non-payment of costs, it should be lodged with the sheriff. Boucher v. Simms 30 5. The twenty days' notice to a prisoner

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6. Diligent search having been made for a defendant, but without success, the Court will grant leave to stick up the notice of declaration in the office, it appearing that inquiries had been made at every place in which there was a probability of finding the defendant. Sayer v. Powell. . . 260

7. What are sufficient attempts to serve a defendant with a writ of summons, in order to entitle the plaintiff to a writ of distringas. Godfrey v. Green 102

8. The calls and appointments to serve a writ of summons should be made on different days, to entitle the plaintiff to a distringas. Cross v. Wilkins

102

9. Where a distringas has been issued

Digested Index to the Cases Reported.

against a defendant, for not entering a com-
mon appearance, and the sheriff has returned
that he has levied 40s., a rule is not necessary
to enter an appearance. Tucker v. Brand
Page 483
10. The Court will grant leave to stick up
the declaration in the office, if it shall appear
that satisfactory means have been taken to find
the defendant. Harding v. Rawlings.. 231
11. If it shall appear that the defendant
keeps out of the way, in order that he may not
be served with a writ of suminons, the Court
will grant a distringas, although the usual
number of calls and appointments shall not
have been made. Hickman v. Dallimore. 100
12. A writ of summons having been once
served, cannot be altered by the plaintiff by
the service of a second writ. Notice to the
defendant not to appear to the first writ will
make no difference. Anon.
164
13. The defendants to an action, brought by
an agent of a foreign sovereign in the agent's
name, filed a bill of discovery against the
agent and his sovereign, who is out of the
jurisdiction. Held, that service of process on
the agent for the principal is good service.
A demurrer to that bill, on the ground that
the sovereign was not a party to the action,
and that the discovery sought was of no avail
for the defence of the action, is overruled.
Glyn v. Soarer und Queen of Portugal 227
And see AFFIDAVIT, 15.

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SETTING ASIDE PROCEEDINGS.

1. An applicalion to rescind a Judge's order
should be made to the full Court; and such an
application made on the first day of term, to
set aside the order on the ground of the irregu-
larity of the affidavit on which the defendant
was held to bail, and to set aside a writ of de-
tainer lodged at the gaol, being eight days after
it was so lodged, was held in time. Johnson
v. Kennedy

261

531

2. A sheriff in the country cannot be called
upon to return a writ obtained at the office of
the sheriff's deputy in London, and sent by
the plaintiff in an unpaid letter to the sheriff's
officer in the country, by whom it was refused,
and in consequence sent back to town. Hart
v. Weatherley
...Page 31

3. The sheriff having seized some property
at the suit of the plaintiff, but a third person
having claimed a portion of the goods as a
partner with the defendant, the Court will not
grant the sheriff relief, under the Interplea-
der Act, but will compel the plaintiff to give
him an indemnity, if he denies the justice of
the claim of the third party. Holmes v. Mentz
133

4. Goods having been seized by a sheriff
under a fi. fa., and claimed by a third party,
and an indemnity having been offered to him
by the latter not to sell, which he has refused,
the Court will not interfere to restrain him
from selling. Harrison v. Forster ..... 324
5. It is necessary to make two motions to
make a Judge's order a rule of Court, and for
an attachment against the sheriff for not bring-
ing in the body. Pitcher v. Woods 310

SOLICITORS.

A solicitor is not to practise in a Court in
which he has not been admitted, not even by
an agent who has been admitted therein. Tur-
116
ner v. Ford

And see ATTORNEY.

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If a party be served with a subpœna duces
tecum, he is bound to obey it, and produce the
document required, and has no right to enter-

2. The Court will grant a rule to set aside a
portion of a rule of a former term, if the cir-
cumstances which give rise to the application
occur in the cause and in court. Ea parterial or not to the issue, on the trial of which he

Halls

273

tain the consideration of whether it is immate.

4. An application to set aside a Judge's is subpoenaed. Doe d. Butt v. Kelly .... 45
order, having been deferred from the month

of October to the January following, was held
to be too late. Granby v. Frowd

......

213

4. An application to set aside judgment on
an affidavit of merits, must be made in reason-
able time. There is no distinction in case of a
310
prisoner. Fife v. Bruere

5. The Court will not allow a plea to be set
aside by affidavit on motion, on which an issue
may be taken. La Forest v. Langan . 310

SHERIFF.

..

TAXATION OF COSTS.

1. A petition substantially stating and pray-
ing as a former petition, which was dismissed,
and not purporting to be for a rehearing, is
informal. In the taxation of a solicitor's bill
of costs, a difference is made between the
charges allowed for the attendances of the
solicitor and of his clerks-Semble. Dawson
v. Stocken

450

2. The Court will not entertain an objec-
tion to a bill of costs for certain items being
1. The goods of a defendant having been introduced, which it is alleged belong pro-
taken in execution and claimed by a third per-perly to the cash account, after the bill shall
son, and the latter subsequently, on an issue
being directed, abandoning his claim, he will
be liable for all costs subsequently incurred.
Scales v. Surgeson

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532

Digested Index to the Cases Reported.

over their amount, if he has received no
specific instructions from his client as to the
appropriation of the money. Harrison v. Ward
Page 29

6. The permission of a Judge before whom
a cause is tried, to apply to set aside the ver-
dict and enter a nonsuit, must be obtained be-
fore such an application can be made. Rick-
3. The Court has power only to order a
etts v. Bird :
Page 259
bill to be taxed when it is between attorney
7. The sum indorsed on the writ of sum-
and client, and when it is for business trans-mons, being more than 20%., although that
acted in the Court, according to the statute claimed in the particulars does not amount to
2 Geo. 2, c. 23. Various matters, including so much, the Court will permit the plaintiff
common law and conveyancing charges, if to amend the writ, so as to obtain a writ of
ap-
plying only to one transaction, should be in- trial before the sheriff. If the amount in-
cluded in one bill. Doe d. Palmer v. Roe 13 dorsed on the writ exceed 20., the sheriff
4. The Court will not interfere so far with cannot try the cause. Frodsham v. Round
the Master's discretion, as to direct his report
to be reviewed, merely on a suggestion of the
amount allowed by him for certain witnesses
being too much. It would be otherwise, if
the objection were to a certain class of allow-
ances made by him. Day v. Withers
84
And see COSTS.

TRUSTEES.

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UNDERTAKING.

323

1. A plaintiff having given an undertaking
to bring no action for matters appertaining to
a certain cause, and afterwards breaking the
terms of that undertaking, the Court will
grant a rule to stay proceedings. West v.
Stone
62

1. One of two trustees and executors having 2. The Court will make the payment of the
an option from the testator to purchase the costs of the last default of plaintiff in pro-
trust property at a fair valuation, purchased ceeding to trial, pursuant to his peremptory
the property at a valuation made without com- undertaking, a condition precedent to the
munication with the co-trustee. Held, in affir-drawing up of a rule for an enlargement of
mance of the decree of the Court below, that his undertaking. Dennehaye v. Richardson 387
the purchase by the trustee was contrary to the
principles of the Court applicable to trusts.
Stocken v. Stocken

....

28

2. Trustees directed to lay out money on
real security, are bound to see that it does not
exceed one-third of the value of the security,
if the security consists of houses; if otherwise
they are liable for loss sustained by deficiency
of the value of the security. Sewell v. Stickney
132

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VENDOR AND PURCHASER.

1. In a conveyance of certain lands, sold
by the Crown under an extent from the ori-
ginal purchaser to a sub-purchaser, at a less
price, before any conveyance was made from
the Crown to the former, the Court will not
allow the name of the latter to be substituted
in the conveyance from the Crown for that of
the former, to save the expense of two con-
veyances, unless with the consent of all parties
concerned. Rex v. Rawlings
484

2. An agreement to sell crown lands may be
enforced, though the warrant from the Trea-
sury was not previously issued. An advowson
appendant to a manor belonging to the Crown,
will not pass by a conveyance of the manor.
Attorney General v. Sir G. Sitwell. . . 194

WILL.

2. In country causes, a plaintiff has the
whole term after that in which issue is joined,
to give notice of trial. Douglas v. Winn 355
3. In order to entitle a defendant to four- 1. Held, that a bequest of the residue of
teen days' notice of trial, it must be distinctly funds, consisting of stock and dividends,
shewn that he is permanently resident in Ire-" for such charitable or other purposes as
land. Leneham v. Goold
452 testator's trustees should think fit, without
being accountable to any person for such their
disposition thereof," is void for uncertainty.
Ellis v. Attorney General
. 481

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4. It is a positive rule, that the motion for a
new trial must be made within the four days.
Wheeler v. Whitmore
118
5. Two notices of trial, varying with one
another, having been given to the defendant,
and the cause being tried as undefended, the
Court will grant a new trial, without costs.
The defendant, although appearing personally,
must be held bound by the same rules as if he
appeared by attorney. Kerry v. Reynolds

118

2. Devise to A. B. as tenants in common;
one moiety to A. for life, remainder to his
lawful issue; but if A. shall not marry, or
have lawful issue who shall attain 21, then that
moiety to go to B. and his heirs in fee: Held,
that A. took an estate for life only. Lees v.
Mosely.
497

3. A testator, by his will, gave the residue

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