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1834.

Wilson v. BROUGHTON. This was a motion to enter a suggestion on the roll un- Where a defender the 43 Geo. 3, c. 46, s. 3, the defendant having been to bail in a much

dant was held held to bail for 60l., and the plaintiff having only reco- larger sume than vered ls.

recovered: Quære whether,

if it had been a Follett and Lumley shewed cause.—This is not a case

case within the

act 43 Geo. 3, within the act. The words of the act are," arrested and c. 46, by reason

of the absence of held to bail:" the affidavits here only shew that the defen- a reasonable or dant was held to bail; but it was necessary that he should for holding to

probable cause have been arrested also. The words of the act are plain,

amount, the and the arrest, which is the material point, did not take mere fact of the

defendant's not place.

having been actually arrested

would have been Lord LYNDHURST, C. B.- In the introductory part the sufficient to de

prive him of words are, “ arrested or held to bail.”

the benefit of that act ?

Follett.-In an action for a malicious arrest both are essential. The case of Bates v. Pilling, which occurred in this Court in last Hilary Term (a), expressly decided that both are necessary; that there must be an arrest as well as a holding to bail. That seems to have been the opinion of the Court of Common Pleas in Amor v. Blofield (b), though there the defendant was neither arrested nor held to bail.

PARKE, B.-In that case the defendant was not put to any inconvenience.

Follett and Lumley.-Upon the facts of the case, there is no pretence for the motion. The defendant pleaded a tender of 301., which sum was paid into Court: upon that

(a) Since reported, ante, p. 367.
(6) 9 Bing. 91 ; 2 Moore & Scott, 156.

1834.

WILSON

BROUGHTON.

plea the plaintiff got a verdict. The accounts between the parties were complicated, and many of the facts sworn to in support of the motion are contradicted by our affidavit. Tbe case turned in a great measure upon a nice point, whether certain money was paid specifically or generally. It cannot be said that there was no reasonable or probable cause for the arrest.

Bompas, Serjt., and Kelly, contrà, were directed to confine themselves to the latter point. They endeavoured to shew that there was no reasonable or probable cause for the arrest.

Lord LYNDHURST, C. B.—There is no necessity to give any opinion upon the first point, because I think upon the facts the motion cannot be sustained.

cause.

Parke, B.—The facts are of an equivocal character. I cannot say that there was no reasonable or probable

As to the other point, I think it would be very inconvenient to put that construction upon the act which has been contended for. I was not aware that there had been a case in this Court upon the point.

Rule discharged; costs to be costs in the cause.

GILMORE ». Melton. If it appears

A RULE nisi for judgment as in case of a nonsuit was that issue is not obtained upon an affidavit that issue was joined in Easter ing the simili- Term last (1833). ter, the rule for judgment as in case of a non

Knowles shewed cause. --The defendant pleaded the gesuit will be discharged.

neral issue and infancy. The plaintiff replied; and it is sworn by him that the defendant has done nothing further. He contended, therefore, that the issue was not joined.

1834.

GILMORE

V. MELTON,

Miller, contrà, submitted, that as it was the general practice for the plaintiff to add the similiter, and as the defendant's affidavit expressly stated that issue was joined, it must be taken that it was so. The plaintiff does not deny that issue was joined; but merely says, that he added the similiter to the general issue, and traversed the plea of infancy, and that the defendant has done nothing more.

Vaughan, B.-In one sense, you are correct in saying that issue is joined, because it is joined on the general issue; but could you be indicted for perjury on that affidavit, because no issue was joined on the second plea? The plaintiff swears that nothing further was done since the plea of infancy than the traversing it, and therefore issue is not joined, because the similiter bas not been added.

The other Barons concurring

Rule discharged, with costs.

one executor

LAKIN and Others v. WATSON. This was an action by the plaintiffs, as executors In an action by of Watson, deceased, to recover the amount of a pro- defendant

executors, the missory note, dated April 9, 1827. The defendant pleaded in

abatement the pleaded in abatement the nonjoinder of Fanny Wat- nonjoinder of son, a co-executrix of the plaintiffs. Under these cir- (who had not cumstances a rule nisi had been obtained by W. H. proved), The Watson and Henderson, for amending the writ of sum- the proceedings

to be amended, mons, by adding the name of F. Watson as one of the

on payment of plaintiffs, on an affidavit that she was a mere nominal costs

, as the Statute of Limitations would have been a bar

to a fresh action. In future, no amendment will be allowed except to avoid the operation of the Statute of Limitations,

1834.

party, not having proved the will, and that the Statute of Limitations would be a bar to a fresh action.

LAKIN

Watson.

Whately shewed cause upon affidavits. He objected, also, that, by allowing such an amendment here, the plaintiffs would be enabled to try without subjecting themselves to costs under the late act, as they would do if they commenced a fresh action (a).

Parke, B.—The question is now under consideration in a case in the King's Bench, whether the act does not apply to actions commenced previously to the act. The words are general. But an executor may now be protected from costs by a Judge's certificate. With respect to this particular case, I think an amendment ought to be allowed, because, if a new action were to be commenced, it would be barred by the Statute of Limitations. The case of Horton v. The Inhabitants of the Hundred of Stanford (6) is an authority, that, where the Statute of Limitations would be a bar, an amendment may be allowed. All the Judges have come to the resolution, that in future, since the Uniformity of Process Act, no amendment of this kind ought to be allowed, unless where the Statute of Limitations would be a bar, and that that is to be the only exception.

BOLLAND and ALDERSON, Bs.-Horton v. The Inhabitants of Stamford is an express authority upon this point.

Rule absolute, on payment of costs.

(a) 3 & 4 Will. 4, c. 42, s. 31.

(6) Ante, p. 96; S.C. 1 C. & M.773.

1831.

CRESSWELL v. Crisp. This was an action of debt on a promissory note. The The Court re

fused to set defendant demurred specially to the declaration, and as- aside a demursigned for cause that it was not shewn to be drawn for rer under the

late rule, as bevalue received.

ing frivolous, the cause of de

murrer being, R. N. Clarke obtained a rule nisi to set aside the de- that, in debt on

a promissory murrer, as being frivolous; and also that the plaintiff note, it did not should be at liberty to sign judgment as for want of a plea. words “ value He grounded his motion on the rule of H. T. 4 Will. 4, received” were reg. 2(a).

appear that the

R. V. Richards shewed cause.He contended, that there was no authority that debt would lie where the words " value received” were not in a note or bill; and that, in all the cases where debt was held to lie, there were the words " value received” in the instrument. The Court, he said, would not interfere unless the demurrer was plainly frivolous.

Clarke, in support of the rule, cited Priddy v. Henbrey (6), where it was held, that debt would lie by the drawer against the acceptor of a bill of exchange, payable to the drawer or his order for value received in goods. And, in White v. Ledwick (c), it was expressly decided that a bill or note need not express that it is for value received. The new forms of declarations on bills of exchange and promissory notes do not contain the words “ value received."

Lord LYNDHURST, C. B.- The forms are only in assumpsit. You had your choice of debt or assumpsit.

(a) Ante, p. 304. (6) 3 Dowl. & R. 165; 1 B. & Cress. 674.

(c) K, B. 25 Geo. 3; Bayl. Bills, 4th ed. 34. VOL. II.

U U

D. P C.

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