Extents in aid-Judicial Proceedings. account, and the title of the crown will prevail. 9 Exch. 32. Regina v. Edwards. Ibid. 628. S. C., in error. See also 4 H. & N. 488. Wright v. Mills, post, n. (y). The operation of extents in aid was materially curtailed by the stat. 37 Geo. 3, c. 117. And, by a rule of court made in 1822, the party applying for an extent in aid is required to make affidavit, that unless the process of extent for the debt due to him from his debtor be forthwith issued, the debt due to the crown from the party applying would be in danger of being lost to the crown. Under this rule, the party has to admit his own insolvency. The result has been that, for many years past, not any extents in aid have been issued. (y) By r. 72, H. T. 1853, every writ of execution shall "bear date on the day on which the same shall be issued.” By stat. 3 & 4 W. 4, c. 67, s. 2, "all writs of execution may be "tested on the day on which the same are issued, and be made "returnable immediately after "the execution thereof." Where judgment was signed at the opening of the office, at its usual hour, 11 A.M., and the defendant died at half-past 9 A.M. on the same morning, it was held, that the judgment was regular; for that judicial proceedings are to be considered as taking place at the earliest period of the day on which they are done. 4 H. & N. 488. Wright v. Mills. STENNEL v. HOGG. STENNEL v. HOGG. 1 Saunders' Reports, 220-225a [abridged]. Objection aided by Statute of Jeofails. IN this case the plaintiff declared that on, &c., at Braighton Parsloe, in the county of Bucks, the defendant chased the sheep of the plaintiff. The defendant pleaded that the locus in quo (1) was the freehold of J. T., and justified as servant of J. T. chasing the said sheep damage feasant there. The plaintiff replied by claiming a presumptive right of common in a certain field called Clackhill, but the replication omitted to aver that the sheep were in that part of the land in which the common was claimed, or that the sheep were levant and couchant upon the plaintiff's land. The defendant traversed the prescriptive right, and on trial of the issue joined thereon there was a verdict in favour of the right. And it was held that the omissions complained of were aided by the statute of jeofails; and so is France v. Tringer's case, Cro. Jac. 44 (2). (1) This does not seem to be correctly pleaded. There is no place alleged in the declaration, where the sheep were taken, for Braighton Parsloe is only laid for a venue; neither does it seem necessary to say, that the place was the freehold of J. T.; for this is not a local action like trespass clausum fregit, but a transitory action for chasing the plaintiff's cattle, in which action possession is a sufficient justification. 2 Salk. 643. Anon. The more proper mode of pleading seems to be, "that J. T. was lawfully possessed "of and in a certain close called "C. lying in B. P. aforesaid," and then justifying the chasing of the Objection cured by Verdict or Statute of Jeofails. "whatsoever, which would have been aided and cured by any of "the said statutes of jeofails, in "" case a verdict of twelve men "had been given in the said "action or suit." In the construction of this statute it has been adjudged, that it extends to protect judgments by default, against such objections only as are remedied after a verdict by the statutes of jeofails, and not against objections which are cured by a verdict at common law. 1 Str. 78. Vandeput v. Lord. S. C. 2 Vin. Abr. 399. MSS. 2 Str. 933. Hayes v. Warren. 2 Burr. 899. Collins v. Gibbs. It becomes necessary therefore in order to ascertain the nature of the defects, which are aided after a judgment by default since the statute of Anne, to distinguish with accuracy between such imperfections as are cured by a verdict by the common law, and those which are now remedied after a verdict by the several statutes of jeofails.-With (a) 13 East, 407. Higgins v. Highfield. That was an action for mesne profits; and the declaration did not state any time when the defendant entered, but only that he kept the plaintiff ejected for a long space of time. After judgment by default, the court held that this omission was cured by the statute 4 Ann. c. 16, and seemed to consider that all defects of form only were cured by that respect to the former case it is to See Blackall Wooten v. statute. The case of Blackall v. Heal, Com. Rep. 12. Carth. 389. S. C., was cited in argument, where the same omission was held to be cured after verdict; but whether under the statutes of jeofails, or at common law, does not appear, though the language of the court in giving judgment seems to lean to the latter. The case in 13 East, 407, is, however, decisive upon this point. Objection cured by Verdict or Statute of Jeofails. Salk. 365. Crouther v. Oldfeild. Com. Rep. 116. May v. King. 6 Mod. 302. Scrimshaw v. Westley. 2 Ld. Raym. 1060. S. C. Holt's Rep. 567. 3 Wils. 275. Roe v. Hersey. 7 Brown. P. C. 555. Rann v. Hughes. Dougl. 679. Rushton v. Aspinall. 1 T. R. 141, 145. Spiers v. Parker. Ibid. 545. John stone v. Sutton. 3 T. R. 25. Nerot v. Wallace. Ibid. 147. Clark v. King. 4 T. R. 472. Bishop v. Hayward. 7 T. R. 518, 523. Macmurdo v. Smith. Cas. Temp. Hardw. 116. Wicker v. Norris. 10 East. Bowdell v. Parsons (b). As where in debt for rent, by a bargainee of a reversion, the declaration omitted to allege the attornment of the tenant, which before the statute 4 Anne, c. 16, s.9, (b) 2 Bos. & Pull. 265. Ward v. Harris. [2 Bing. 464. Whitehead v. Greetham. 1 M'Clel. & Y. 1 M'Clel. & Y. 205. 10 Moore, 183. S. C. 4 Bing. 66. Adamson v. Jervis. 12 Moore, 241. S. C. 4 Bing. 646. Harris v. Beavan. 1 Moo. & P. 633. S. C. 4 B. & C. 138. Lambert v. Taylor. 6 D. & R. 188. S. C. 4 B. & C. 525. Price v. Seaman. 7 D. & R. 14. S. C. 7 B. & C. 423. Payne v. Wilson. 3 Y. & Jerv. 458. Edwards v. Bennett. 2 Dow. & Cl. 288. Humphrys v. Platt. 5 Bligh, 154. S. C. 2 Cr. & J. 637. Wilkinson v. Malin. 2 Tyrw. 544. S. C. 4 B. & Ad. 739. was a necessary ceremony to complete the title of the bargainee, and upon nil debet pleaded there was a verdict for the plaintiff, such omission was cured by the verdict by the common law; 2 Show. 233, 234. Hitchens v. Stevens; but is a fatal objection after a judgment by default, since the statute of 4-Anne, c. 15, s. 2. 1 Str. 78. Vandeput v. Lord. S. C. 2 Vin. Abr. 399 (c). And this construction seems agreeable to the spirit as well as the letter of that statute; for it is clear that, unless the tenant had in fact attorned, the plaintiff was not entitled to recover. It is not alleged in the declaration that the tenant had attorned; it is at least as probable that he had not attorned as that he had; and it does not appear Nurse v. Wills. 1 Nev. & M. 765. S. C. 4 A. & E. 134. Tibbits v. Yorke. 5 Nev. & M. 609. S. C. 12 M. & W. 164. Cripps v. Davies, per Parke, B.] (c) 14 Q. B. 909. Vigers v. Dean of St. Paul's. It should be observed, that the learned serjeant is here speaking of a conveyance of a reversion made previous to the statute of Anne, and pleaded after that statute, the 2d section of which extends the statutes of jeofails to judgments by defaults, and the 9th and 10th sections of which abolish the necessity of attornment. Objection cured by Verdict or Statute of Jeofails. which is the fact: upon what ground then can the court presume any attornment? The judgment by default affords none; for that only admits such facts as are alleged. Therefore, if such defects should be held to be aided after a judgment by default, it might frequently happen that the court would give judgment for the plaintiff, where he is not entitled to recover. But where a verdict has established the grant, that is a sure ground whence the court can presume attornment; because, without proof of it, the plaintiff could not have made out his title as bargainee of the reversion. So where a grant of a reversion, a rent-charge, an advowson, or any other hereditament, which lies in grant, and can only be conveyed by deed, be pleaded, but is not alleged to have been by deed; or if a feoffment be pleaded without livery (d); so that the grantee or feoffee does not shew in himself a perfect title; yet, if the grant or feoffment be put in issue, and found by the jury, the verdict cures such imperfection by the common law. Hutt. 54. Lightfoot v. Brightman. 1 T. R. 145. (d) But it seems that livery need not be pleaded in any case, for it is a necessary circumstance implied by law; Co. Litt. 303 b. Plowd. 149. Throckmerton v. Tracey; which was on demurrer to a plea in bar. Spieres v. Parker. But such defect is a fatal objection after a judgment by default, for the reason above given. Also where a promise depends upon the performance of something to be first done by him to whom the promise is made, and in an action upon such promise the declaration does not aver performance by the plaintiff, or that he was ready to perform, and there is a verdict for the plaintiff, such omission is cured by the verdict by the common law, but is a fatal objection after a judgment by default; for the objection holds exactly the same as if it had been upon demurrer. 2 Burr. 899. Collins v. Gibbs. So in an action for a malicious prosecution, it is necessary to allege in the declaration that the prosecution is at an end. 2 Rich. 3, 9. Hob. 267. Waterer v. Freeman. 10 Mod. 209, 210. Parker v. Langley. 2 Vin. Abr. 35. MSS. Blackgrave v. Oden. Doug. 215. Fisher v. Bristow. 2 T. R. 225. Morgan v. Hughes. The want of this averment is cured. after verdict. Post, note to Skinner v. Gunton. 1 Sid. 15. Wine v. Ware (e). But is fatal upon (e) [Accordingly it has been held, that the plaintiff must be nonsuited, if he fails to prove that the prosecution was at an end, though he has not averred this fact in his declaration. 2 B. & Ad. 695. Whitworth v. Hall. |