agreement between the parties themselves could, according to the language of the rule of Court, have deprived the attorney of his lien for costs. I think, that, by referring the cause, they do not increase their power to effect a setoff, and therefore I think that the set-off directed by the arbitrator cannot be carried into effect. Execution may therefore issue for the costs of the first action; notwithstanding the award. Rule absolute accordingly (a). (a) S. C. 4 M. & Scott, 265. 1834. COWELL ບ. BETTELEY. HUBER V. STEINER. TADDY, Serjt., shewed cause against a rule nisi for leave to the defendant to add a plea to those already put on the record. It was an action on certain promissory notes against the defendant as drawer. At the time of making the notes, in the year 1813, and for more than five years after they became due, both parties were domiciled at Mulhausen in Upper Saxony, then subject to the French government, and governed by French law. According to that law, the plaintiff would be barred in five years. The present action was begun in May, 1833, a declaration. delivered in October, and issue joined on the 14th January, 1834. The defendant had pleaded, first, the general issue; and, secondly, the Statute of Limitations. The plaintiff replied that he was abroad until within six years of the action being commenced. The object of the present application was to add another plea, shewing that, by the French law, the lapse of five years had barred the plaintiff's right of action. The learned Serjeant said, that the plaintiff was willing to allow the matter of the proposed plea to be given in evidence under the general issue. F F F 3 The Court will, action on a foreign promis on terms, in an sory note, even after issue join ed, allow a de fendant to put in a plea, shewing that, by the foreign law, the plain tiff's right of action is tolled by lapse of time. 1834. HUBER V. STEINER. This would have all the effect the defendant could wish, and would prevent the necessity which might otherwise probably arise of compelling the plaintiff to give evidence which must be adduced from a foreign country. Bompas, Serjt., supported the rule. TINDAL, C. J., with the concurrence of the other Judges, directed the rule to be made absolute on the terms of all the costs incident to the motion being paid by the defendant, the handwriting of the latter to the notes being admitted, and judgment of the term given if the plaintiff should obtain a verdict. Rule absolute accordingly (a). (a) S. C. 4 M. & Scott, 329. 5 Reg. Gen. T. T. 1 Will. 4, as to changing bail, applies to bail put in by the sheriff as well as to that put in by a party. REX v. The Sheriff of ESSEX, in LEVY v. PAINE. WILDE, Serjt., shewed cause against a rule for setting aside an attachment against the sheriff. The attachment had been directed to stand as a security on account of bail not having been put in in due time in the right county. Other bail had been put in, and the defendant was rendered by them, but no order for changing bail had been obtained, pursuant to 5 Reg. Gen. T. T. 1 Will. 4(a). The Court referred to Stroud v. Kenny (b), where Mr. Justice Taunton held, that the rule applied to bail for prisoners. The render made amounted, in point of law, really to no render. The bail need not, however, have been changed at all, as by 1 Reg. Gen. H. T. 2 Will. 4, (a) Ante, Vol. 1, p. 103. (b) Jervis's Rules, 3rd ed., p. 28, n. s.20 (a), (it was ordered, that "bail, though rejected, shall be allowed to render the principal without entering into a fresh recognizance." But, under the circumstances, the sheriff must make the best terms he can with the plaintiff. Rule discharged (b). 1834. REX v. Sheriff of ESSEX. (a) Ante, Vol. 1, p. 186. (b) S. C. 4 M. & Scott, 247. KENDALL . ALLEN. If a party taxes torney for costs due from a third the bill of an at person and pays not afterwards recover the amount without shewing the payment to have been made through igno rance or misrepresentation; and if an action be brought the IN this case costs were due from the plaintiff's son to the defendant, who was an attorney. The latter held in his hands a bond from the son to the plaintiff. Afterwards the son becoming bankrupt, and the defendant claiming that bill, he cana lien on the bond, the plaintiff agreed to pay the bill of costs out of the proceeds resulting from proving the bond under the commission, provided the defendant would give up the bond. The debt on the bond was accordingly proved, and a dividend received. Two bills were then made out, one for business done under the commission, and the other for business on account of the son. the plaintiff had taxed, and the defendant retained their amount as well as that of a sum of money advanced by him to her. The plaintiff then gave a receipt for the residue of the dividend in these terms, " being the balance of the dividends received on her account." An action was then brought for the recovery of the sum retained by the defendant for the son's bill. A rule nisi was obtained to stay proceedings, on the ground of the action being brought against good faith. These bills Jones, Serjt., shewed cause against this rule, on affidavits, which unsuccessfully attempted to shew that the plaintiff Court will stay proceedings. 1834. KENDALL v. ALLEN. had been induced by misrepresentations to allow the amount of the son's bill to be retained. Wilde, Serjt., supported the rule. TINDAL, C. J.-It does not appear that the plaintiff in this case agreed to pay her son's bill from either ignorance or misrepresentation. On the contrary, she had the bill taxed, and made no objection. If she had thought any imposition had been practised upon her, she ought to have come to the Court then. There can be no reason for permitting this action to proceed. PARK, J., GASELEE, J., and ALDERSON, J., concurred. (a) S. C. 4 M. & Scott, 319. SKIPPER V. LANE. A sheriff is early THIS was a sheriff's rule under 1 & 2 Will. 4, c. 58, enough in his comes to the within eleven application, ifhe S. 6(a). The sheriff seized under a fi. fa. on the 9th Court for relief January, and on the 13th he was ruled to return the writ. under the Inter- Notice was given him on the 18th that a fiat in bankpleader Act ruptcy was about to issue against the defendant. His return was, that the goods remained on his hands for want of buyers. The plaintiff then sued out a venditioni exponas, and ruled him to return that writ on the 24th. The assignees under the fiat claimed the goods on the 28th, and on the 29th this rule was obtained. days after notice of an expected claim. Andrews, Serjt., appeared for the sheriff. Wilde, Serjt., appeared for the execution creditor, and (a) 2 Dowl. Stat. 571. contended, on the authority of Cook v. Allen (a), that the application was too late. The Court thought the delay of the sheriff not unreasonable, particularly as the notice of the fiat was only notice of an expected claim. The rule was afterwards made absolute on certain terms (b). (a) Ante, p. 11. (b) S. C. 4 M. & Scott, 283. See also Isaac v. Spilsbury, ante, 211,3 M. & Scott, 341; 10 Bing. 3, 1834. SKIPPER v. LANE. COPPIN and Wife, Administratrix of J. PLURA, deceased, v. POTTER. THIS "Bath, in the county of Somerset, Esq.," is a sufficient description in the Common Pleas of a deponent in an affidavit of debt. In such an affi. davit it is not incorrect to allege the defendant to be indebted to the plaintiff and his wife, admin istratrix. If the debt was to the intestate on bond, the death of the lat ter need not be alleged, nor to whom the payment was to be made. To warrant an alias capias into a second county, a fresh affidavit of debt, or a copy of the previous one, need not be filed if the writ is sued out by an officer, who is deputy filacer for both counties. |