mencement of the action (1839), were unbuilt, it was held bad, on general demurrer, for not shewing that two years from Midsummer next, after the making of the agreement, had elapsed previous to the commencement of the suit, Parkinson v. Whitehead (a). [Alderson, B.-The declaration alleges that the plaintiff petitioned according to the directions and provisions of the statute, and he could not do so, unless the petition was filed after the statute passed. Pearson, contrà, (was requested by the Court to confine his argument to the objection, that it was not averred that the vesting order was made before the commencement of the suit).—It is sufficiently averred: the plea states, "that after the accruing of the debts and causes of action, in the declaration mentioned, and before the commencement of the suit," the plaintiff, then being a prisoner, did, according to the provisions of the 1 & 2 Vict. c. 110, petition the Insolvent Court for relief, and which petition contained all things required by the act; and that after the filing of the petition, the Court made the vesting order. Unless the contrary appears, it will necessarily be intended that the order was made before the commencement of the suit. Wordsworth replied. PARKE, B.-We will consider the last point: as to the other objections we think there is nothing in them. 1842. TUCKER v. WEBSTER. Cur. adv. vult. On a subsequent day the judgment of the Court was delivered by PARKE, B.-This was an action for work and labour as an attorney. The declaration was dated the 18th March, (a) 2 Man. & Gran. 329. 1842. TUCKER v. WEBSTER. 1842, and the plea, which was dated the 20th April, states, that after the accruing of the causes of action in the declaration mentioned, and before the commencement of the suit, the plaintiff, then being a prisoner, did duly, and according to the provisions of the 1 & 2 Vict. c. 110, petition the Court for the relief of insolvent debtors for his discharge; it then avers, that the Court ordered that all the real and personal estate and effects of the plaintiff, and the debts due and growing due to the plaintiff, should be vested in the provisional assignee. There were several objections to the plea; but the only one we wished to consider, was, whether the plea is good on special demurrer, it not being averred that the vesting order was made before the commencement of the suit? We think the plea bad on that ground. Under the old form of pleading it would not have been necessary to make such an averment, because the plea having reference to the same time as the declaration, and all proceedings on the record being in contemplation of law on the same day, it would have been necessarily intended that the act took place before the commencement of the suit. But in this case the declaration is dated the 18th March, and the plea the 20th April; therefore it must be taken that the order was made on the day of the date of the plea, unless it is averred that it was made before the commencement of the suit. It is uncertain whether the order was made before or since; if since, the defence should have been pleaded against the further maintenance of the suit; if before, it should have been so averred. There must be judgment for the plaintiff, unless the defendant amends on payment of costs. There was no difference, under the old form of pleading, whether the proceedings were by original or by bill; in either case the fact would have been intended to have taken place before the commencement of the suit. Judgment accordingly. Court of Queen's Bench, which ap- 306 3. Where an affidavit is re-sworn, 4. The rule of Reg. Gen., H. T. 5. Where an affidavit has been used AFFIDAVIT, (ENTITLING). See AFFIDAVIT, 1, 2. 1. An affidavit in support of an 93 2. In a cause between J. S. and 3. In an action which was de- AMENDMENT. See ARREST, 1, 2. VARIANCE, 2, 8. 9. 1. The Court amended a writ of summons by altering the cause of action from "debt" to "promises," in order to save the Statute of Limitations, although more than four months had elapsed from the date of the writ, and no service had been effected. Eccles v. Cole, 34 2. Where an application is made by one of several execution creditors to amend the indorsement on a writ by increasing the amount of the sum to be levied, the other creditors and the officer to whom it is directed should be made parties to the rule. Hammond v. Navin, 351 3. To an action by indorsee against acceptor of a bill of exchange, the defendant pleaded the plaintiff's discharge under the Insolvent Act, alleging that his effects vested in the assignee by assignment by deed, instead of by order under the 1 & 2 Vict. c. 110, s. 37. The plaintiff took issue on the assignment by deed, and gave notice of trial for the 15th. On Tuesday, the 8th, a summons was taken out to amend the plea, which was heard on the following Thursday when the application was refused. On Saturday, the 13th, a similar application was made to the Court: Held, that the application was not too late, as the rule with respect to setting aside proceedings for irregularity, did not apply to amendments. Welch v. Hall, ANNUITY. See VARIANCE, 9. 365 A memorial of an annuity-deed, |