528 Digested Index to the Cases Reported. resford ..... LEGACY DUTY. 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 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 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. 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 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. 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. . . 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. 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 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- SETTING ASIDE PROCEEDINGS. 1. An applicalion to rescind a Judge's order 261 531 2. A sheriff in the country cannot be called 3. The sheriff having seized some property 4. Goods having been seized by a sheriff SOLICITORS. A solicitor is not to practise in a Court in And see ATTORNEY. If a party be served with a subpœna duces 2. The Court will grant a rule to set aside a 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 of October to the January following, was held ...... 213 4. An application to set aside judgment on 5. The Court will not allow a plea to be set SHERIFF. .. TAXATION OF COSTS. 1. A petition substantially stating and pray- 450 2. The Court will not entertain an objec- 532 Digested Index to the Cases Reported. over their amount, if he has received no 6. The permission of a Judge before whom TRUSTEES. UNDERTAKING. 323 1. A plaintiff having given an undertaking 1. One of two trustees and executors having 2. The Court will make the payment of the .... 28 2. Trustees directed to lay out money on VENDOR AND PURCHASER. 1. In a conveyance of certain lands, sold 2. An agreement to sell crown lands may be WILL. 2. In country causes, a plaintiff has the 4. It is a positive rule, that the motion for a 118 2. Devise to A. B. as tenants in common; 3. A testator, by his will, gave the residue |