1791. The KING The Sheriff of use of such service was in order to give the plaintiff that information which in this case he notoriously had without it. Mingay, contrà, now shewed cause; insisting upon the regularity of the attachment, because the plaintiff had not been served with the allowance; which he contended to be necessary, not only that the other party might have notice that such a step was taken in the cause, but because a contrary rule would tend to defraud the stamp-office of the duties, and the officers of the Court of their fees; and he said that the same point had been determined in Booth v. Preston, 29 Geo. 3. B. R. Lord KENYON, Ch. J.-Though we are not a Court of revenue, we are bound to take care that the revenue is not defrauded. Bail is not regularly put in till the allowance of it has been served; and it is of importance that all the steps prescribed by the practice of the Court should be followed. If we were to suffer this exception to prevail, it would enable the defendant's attorney to put into his pocket those duties which belong to the revenue. Rule discharged. Monday, Nov. 28th. It is sufficient to satisfy the provisions of the annuity act, THIS SOWERBY against HARRIS. HIS was a rule to shew cause why an annuity should not be set aside for a defect in the memorial, in not stating the consideration of the annuity, as required by the 17 Geo. 3. c. to state the true 26. s. 1. The memorial, as to this part of it, was as follows, 17 Geo. 3. c. 26. consideration for the memorial by way of recital. [1 B. & P. 451. 3 East. 463.] purchase of after stating the date of the deed, and names of the parties; the annuity in "whereby Harris, in consideration of 2100l. paid, and which "was in fact paid to him by Sowerby, granted to the latter an "annuity of 300l." &c. This motion was made, and the opinion of the Court given, before it was discovered that the memorial contained these words," and which was in fact paid;" so that the case adjudged was on a supposition that those words were omitted. In fact the sum of 21001. mentioned as the consideration was paid by a banker's check (a), which was afterwards paid by the banker to Harris's attorney, who deducted thereout 6501. for a demand which he had on Harris. Shepherd, in support of the rule, gave up the point of the money being deducted, as the whole sum had been paid to Harris's agent; but relied on the cases of Robinson v. Howell (b), (a) Vide Rumball v. Murray and Another, ante, 3 vol. 298. and Berry v. Bentley, post. 6 vol. 690. (6) E. 31 Geo. 3. B, R. and and Willey v. Wheeler (a), where it was held that the consideration of the annuity ought to be averred in the memorial, as a substantive fact, and should not be stated there by way of recital. And he said, that that was not required without good reason; for a contrary rule would open a door to fraud, and would be the means of introducing false recitals. Erskine and Gibbs, contrà. The annuity-act does not direct the mode in which the consideration shall be stated in the memorial; if the real consideration appear in the memorial in any way, it is sufficient to satisfy the act. Lord KENYON, Ch. J.-The object of the act of parliament, in requiring the consideration of the annuity to be stated in the memorial, was, that the public should have complete information of the real transaction between the parties; and that intelligence will be equally conveyed to the world, whether it be averred as a positive fact that the consideration was paid, or only stated by way of recital. In both cases the parties may attempt to commit the fraud of introducing a false fact into the memorial; but that is always open to examination. The Court thought it proper to discharge this rule with costs, the granting of the annuity appearing to be a fair transaction. (a) Tr. 31 Geo. 3. B. R. 1791. SOWERBY against HARRIS. KENNARD against JONES. as Monday, Nov. 28th. Court that for is under 401. they will, on motion, stay BALDWIN moved that all proceedings might be stayed in If it appear to this action, on an affidavit by the defendant that, on ap- the Court plying to the plaintiff's attorney to know what the debt was, he said that it was a guinea and an half. He contended, that the debt was under 40s. the Court could not take cognizance of the proceedings it; and they would not suffer the defendant to be harassed by [s T. R. 64. going on to trial. This being admitted to be a novel applica- 8 Ibid. 235tion, The Court had some doubt; BULLER, J. saying that the practice had been not to grant such rules in this Court, unless the demand appeared to be under 40s. on the record: but Lord Kenyon saying that he remembered many applications of this sort in the Exchequer, The Court granted a rule nisi: against which Manley now shewed cause, not denying the fact, but stating that the application ought to have been made sooner, if at all; for that before trial. 6 Ibid. 175. 3 B. & P. 617.] 1791. KENNARD against JONES. that the defendant was under short notice of trial; but he offered to refer the whole to the Master. Lord KENYON, Ch. J. (stopping the other side) said, that that offer could not be acceded to now. This is a very general question, which concerns the practice of the Court, Whether it shall be permitted to parties to sue in the superior Courts for such small sums as those under 40s.? Now that is expressly prohibited by act of parliament (a); and therefore, upon consideration, we are of opinion, that the rule should be made absolute, but not with costs, as this is the first application of the kind. Per Curiam, Rule absolute. (a) Vide 6 Ed. 1. c. 8. The Court will [1 N. R. 266.] refer an attorney's bill to be taxed, though all the business be done at the QuarterSessions. L Ex parte WILLIAMS (a). ORD KENYON, Ch. J. said, that on further inquiry from the officers of the Crown-office, he understood that there were several instances, in which this Court had referred an attorney's bill to be taxed, though the whole business had been carried on at the Court of Quarter Sessions (b). (a) Vide ante, 124. (6) Vide Clarke v. Donovan, post. 5 vol. 694. [5 East. 386.] REGULA GENERALIS. IT IS ORDERED, That in future all writs shall be returned by the sheriff on the day on which the rule for returning the same shall expire; and in default thereof, the plaintiff shall be at liberty to move for an attachment on the next day (a). (a) This rule arose out of a case of the King v. the Sheriff of Surry, where the Sheriff had not returned the writ till the morning of the 7th day, but before the sitting of the Court; to remedy which practice the above rule was made. THE END OF MICHAELMAS TERM. CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN Hilary Term, In the Thirty-second Year of the Reign of GEORGE III. 1792. GOODTITLE on the Demise of REVETT against BRAHAM. Tuesday, Jan, 24th. is entitled to ply where the THIS ejectment was tried at bar, by a special jury from Suf- The defendant folk, and, by consent, some talesmen from Middlesex, in ejectment The lessor of the plaintiff claimed, as the heir at law, the de- the general refendant as the devisee, of Mrs. Elizabeth Braham, the person plaintiff, claimlast seised. At the outset of the cause, a question arose, Who ing by descent, proves his pediwas entitled to the general reply? and the Court decided, that gree and stops, if the plaintiff proved his pedigree, and stopped, and the de- dant sets up a fendant set up a new case, which the plaintiff answered by evi- defence, which dence, which ultimately went to the jury, the defendant should is answered by have the general reply; and Buller, J. said, that he had so ruled part of plaintiff. A it in a cause (a) at Winchester. clerk of the Post-office, ac, and the defen new case in his evidence on the o for the detec The plaintiff then stated his pedigree, which was admitted; and the defendant proved the will, which was impeached on inspect franks various grounds, but chiefly on those of forgery and undue in- tion of forgeries, fluence. There were two parts of the will, to each of which may be examin ed as a witness to prove that the hand-writing of an instrument is an imitated, and not a natural hand, and also to prove that twe writings, suspected to be imitated hands, were written by the same person. (a) Doe d. Farr v. Hicks, Sum. Assizes, 1789. VOL. IV. Kk. were 1792. GOODTITLE against BRAHAM. were three signatures and a seal; and with one of them was sealed up a paper, purporting to be instructions for the will, in the hand-writing of the testatrix, and signed and sealed by her; at the bottom of which was a memorandum, that the testatrix at the time of executing the will, requested the attesting witnesses to sign the paper for her, which she declared to be her writing; and they had signed it accordingly. This memorandum was in the hand of one Reilly, who was supposed by the plaintiff to be the contriver of the will, and who was considerably benefited by it. The plaintiff's case, as to the forgery, consisted of evidence that the testatrix was incapable of writing a paper of such length as these instructions, and hardly able to sign her name; of declarations in her life-time that she never would make any will; and of some contradictions by the attesting witnesses. The plaintiff then called two clerks of the Post-office, who swore that they were used to inspect franks and detect forgeries. They were then asked whether, from their general knowledge of writing, the instructions were a natural or an imitated hand? This question was objected to, but allowed by the Court; and the clerk swore that the hand was imitated. They were then asked if they could judge whether the instructions were written by the person who wrote the memorandum? This question was also objected to, as being a comparison of hands; but allowed by the Court. Lord Kenyon, Ch. J. mentioned a case, where a decypherer had given evidence of the meaning of letters, without explaining the grounds of his art, and where the prisoner was convicted and executed. And Buller, J. said, it was like the case of Wells Harbour, where persons of skill were allowed to give evidence of opinion. The clerks then swore, that from their knowledge of the similarity of hands, they were sure that the instructions and memorandum were written by the same person. They also swore, that all the signatures to the will, and the signature to a power of attorney, to surrender copyholds to the use of the will executed afterwards, were imitated and not natural writing. On cross-examination, they admitted, that they had never detected an imitation of the hand of a very old person, who wrote with difficulty, and might be supposed frequently to stop. That their principal means of knowing was by seeing whether the letters were painted, that is, gone over a second time with the pen, which they admitted might happen to any person from a failure of ink. Other signatures of the testatrix, proved by unsuspected persons, were then shewn to |