1833. BOWYEAR V. BOWYEAR. therefore that appears, the present writ of right may have been rendered necessary from the inefficacy of the previous ejectments. Rule discharged. action is misdescribed at the commencement of a declaration, MARSHALL and Another v. THOMAS. If the form of ASSUMPSIT on a bill of exchange. The declaration commenced by alleging the defendant to have been summoned to answer the plaintiff" of a plea of trespass on the case," and then proceeded to allege the cause of action. To this the defendant demurred specially, on the ground that the plaintiff had misdescribed the form of action. it is an irregu larity, and not cial demurrer. Wilde, Serjt., in support of the demurrer, contended that the declaration was bad on special demurrer, as, according to the rule of Court, M. 1654, s. 16, the form of action must be correctly described. Per Curiam.-The misdescription of the form of action only amounts to an irregularity, as it is only a non-compliance with a rule of Court. Nothing illegal appears on the face of the record. Judgment for the plaintiff. If judgment as in case of a nonsuit is obtained in an action by an executor, he will be liable to the costs oc casioned by his wilful negligence, and not to the costs of the cause. WOOLLEY, Executor, v. SLOPER, Executor. THIS was an action of covenant by an executor, on a breach committed since the testator's death. Three notices of trial had been given, and each of them countermanded. After the third, a rule for judgment as in case of a nonsuit was made absolute. The wilful negligence of the plaintiff appeared to be the only cause of his not proceeding to trial; and the consequence was, great and unnecessary expense to the defendant. The Prothonotary, on taxation, allowed the defendant the costs of the cause. A rule nisi was obtained for reviewing the taxation. Wilde, Serjt., shewed cause, and contended, that although, in general, an executor might not be liable to pay costs, the wilful negligence of the plaintiff in the present instance deprived him of that privilege. He cited Shaw v. Mansfield (a), and Nunez v. Modigliani (b). Bompas, Serjt., supported the rule, and cited Booth and Others v. Wood (c), Hawes v. Saunders (d), and Harris v. Jones (e). TINDAL, C. J.—As the plaintiff in this case could only sue on the contract made with the testator, he would not have been liable to pay costs, if he were nonsuited at the trial. The statute of the 14 Geo. 2, c. 17, provides, "that all judgments given by virtue of that act shall be of the like force and effect as judgments upon nonsuit, and of no other force and effect;" and then it proceeds, "that the defendant or defendants shall, upon such judgment, be awarded his or their costs, in any action or suit where he, she, or they would, upon nonsuit, be entitled to the same, and in no other action or suit whatever." By the clear language of the act, therefore, the defendant cannot be entitled to his costs of the cause. The present rule must be made absolute for the review of the Master's taxation, such costs being allowed to the defendant as the wilful negligence of the plaintiff in not proceeding to trial has occasioned. (a) 7 Price, 709. (c) 2 H. Black. 277. Rule absolute accordingly. (d) 3 Burr. 1584. END OF EASTER TERM. 1833. WOOLLEY v. SLOPER. VOL. II. P D. P. C. 1833. Trinity Term, IN THE THIRD YEAR OF THE REIGN OF WILLIAM IV. KEYS v. SMITH. The Court will IN this case the defendant had been arrested on a bill waive the strict rule as to change of venue in favour of liberty. of exchange. The cause stood for trial at the last Taunton Assizes, and was made a special jury cause at the instance of the defendant. When it was called on, a sufficient number of special jurors did not appear, and neither party would pray a tales. It accordingly stood over. Afterwards, the defendant was rendered by his bail, and remained a prisoner in the Fleet. On an affidavit of these facts, a rule nisi was obtained for changing the venue from Somersetshire to Middlesex, on the terms of the defendant paying to the plaintiff the extra expense consequent on trying in Middlesex instead of Somersetshire, as all the plaintiff's witnesses resided in the latter county. Wilde, Serjt., shewed cause, and submitted that the facts disclosed furnished no sufficient ground for departing from the general rule, with respect to changing venue. Coleridge, Serjt., in support of the rule, contended that it would be exceedingly hard upon the defendant to be detained until the next Taunton Assizes, on a demand which might turn out to be unfounded, when no disadvantage could accrue to the plaintiff from the present rule being made absolute, since all the extraordinary expenses to which he could be put would be defrayed by the defendant. The Court was of opinion, that, under the peculiar cir cumstances of the case, they might deviate from the strict practice of the Court, and grant the present application. Rule absolute accordingly. 1833. KEYS บ. SMITH. ISAAC v. SPILSBURY. THIS was a sheriff's rule under the Interpleader Act, (1 & 2 W. 4, c. 58, s. 6). It appeared that the sheriff seized goods under a fi. fa., and the defendant's wife laid claim to them, on the ground that they were vested in certain trustees to her separate use. Soon after the defendant petitioned the Insolvent Court for his discharge. On the appearance-day to the rule, the trustees of the defendant's wife disclaimed any intention to interfere, and no one appeared on the part of the provisional assignee. Per Curiam.-The facts of this case do not bring it within the 1 & 2 W. 4, c. 58. In order to bring it within that act, a claim must be made to the property. Here, however, no claim is really made; but the sheriff, being alarmed, calls upon persons to come before the Court and make claims. Such a case is not within the act, and, therefore, all we can do is to discharge the rule. Rule discharged. A week's time was given to the sheriff, in order to sell the goods and return the proceeds. In order to induce the Court to interfere un der the Inter pleader Act in favour of the sheriff, an ac tual claim to the property seized must be made. REGULÆ GENERALES. IT IS DECLARED AND ORDERED, That, in all cases in which a defendant shall have been or shall be detained in prison 1833. REG. GEN. on any writ of capias or detainer, under the statute 2 W. 4, c. 39, or, being arrested thereon, shall go to prison for want of bail, and in all cases in which he shall have been or shall be rendered to prison before declaration on any such process, the plaintiff in such process shall declare against such defendant before the end of the next term after such arrest or detainer, or render, and notice thereof, otherwise such defendant shall be entitled to be discharged from such arrest or detainer, upon entering an appearance according to the form set forth in the aforesaid statute, 2 W. 4, c. 39, schedule No. 2; unless further time to declare shall have been given to such plaintiff by rule of Court, or order of a Judge. IT IS ORDERED, That, from the present day, in all actions against prisoners in the custody of the Marshal of the Marshalsea, or of the Warden of the Fleet, or of the Sheriff, the defendant shall plead to the declaration at the same time, in the same manner, and under the same rules, as in actions against defendants who are not in custody. (Signed by all the Judges). END OF TRINITY TERM. |