Dewanny Adawlut at Madras decided that the second adoption was valid:-Held, upon appeal, by the Judicial Committee of the Privy Council, reversing that decree, first, that, according to the Hindoo law, a second adoption of a son, the first adopted son being alive and retaining the character of a son, was an illegal and void act. -Secondly, that J's acquiescence in the division of the property, after he came of age, did not preclude his right to recover the ancestral estates, as V had no power to alienate any portion of the ancestral estate to J's prejudice. But, thirdly, that (upon the principle that a party cannot affirm and disaffirm the same transaction) effect must be given to the intentions of V, SO far as V had power of disposing of his property, by an act inter vivos, and in which J had acquiesced; and that as J took the whole of the ancestral property of V, he must give up for the benefit of R that part of V's other property included in his share in the division, and to give effect to which his consent was not necessary.

Among the Soodras, a childless Hindoo may adopt a son from a gotrum different from his own.

The consent of a wife to the adoption of a son, by her husband, a childless Hindoo, is not essential to the validity of the adoption. Adoption is the act of the husband alone; although the wife may join in it.

Upon a disputed question of adoption, the Provincial Court, and the Sudder Court, on appeal, held that the evidence was not sufficient to establish the fact of adoption. Such decision reversed by the Judicial Committee. Rungama v. Atchama, and Atchama v. Ramanadha, 4 Moore, In. App. 1.

ADULTERY.

[See DIVORCE-MARRIAGE.]

ADVERSE POSSESSION.

[See EJECTMENT-LIMITATIONS, STATUTE OF TRUST AND TRUSTEE.]

ADVOCATE-GENERAL OF MADRAS. [See CHARITY.]

AFFIDAVIT.

[Verifying Plea, see ABATEMENT.-To hold to Bail, see ARREST.- Of Debt, see BANKRUPTCY -And see PRACTICE, AT LAW, Motions, Rules, and Orders,-PRACTICE, IN EQUITY, Affidavit.]

(A) BY WHOM TO BE MADE

(B) WHEN AND HOW TO BE ENTITLED.
(C) BEFORE WHOM AND WHEN TO BE SWORN.
(D) JURAT.

(E) DATE [WHEN IT MAY BE SUPPLIED BY JURAT].

(F) DEPONENT'S DESCRIPTION.

(G) INTERLINEATION.

(H) AMENDMENT. [See (B) When and how to be entitled.]

DIGEST, 1845-1850.

(I) WAIVER [OF WANT OF ADDITION]. (K) FILING AND TAKING OFF THE FILE. (L) COSTS [UPON DISCHARGE OF RULE FOR DEFECTIVE AFFIDAVIT].

(M) FRESH AFFIDAVITS [SECOND APPLICATION UPON].

(A) BY WHOM TO BE MADE.

Where there are several defendants in an action, and it is sought to attach the plaintiff for non-payment of costs, the affidavit denying the payment must be made by all the defendants. Manwell v. Thompson, 6 Dowl. & L. P.C. 91.

(B) WHEN AND HOW TO BE ENTITLED. [See PRACTICE, Rule-PLEADING, Plea to the Jurisdiction.]

Affidavits in support of a rule for a certiorari ought not to be entitled at all. And where they were entitled "In the matter of The Queen v. Robert Wallwork and James Wallwork" (the name of the proceedings in the court below, which it was sought to bring up, being "The Queen v. Robert Wallwork and James Wallwork), the Court held them irregular, and discharged the rule. Ex parte Wallwork, 4 Dowl, & L. P.C. 403.

Affidavits on which a rule calling on an attorney to answer the matters in the affidavit has been granted, need not be entitled at all.

But affidavits in answer to the rule must be entitled in the same way as the rule.

Where, however, they were not so entitled, the Court enlarged the rule in order that they might be amended. In re Grantham, 4 Dowl. & L. P.C. 427.

Where the defendant was described in the writ of summons as "Frederic C Prosser," affidavits in support of a rule to set aside the judgment, &c. for irregularity, entitled Henry Sims v. Frederic Coulston Prosser," (his real name) are improperly entitled. Sims or Symes v. Prosser, 15 Law J. Rep. (N.S.) Exch. 199; 15 Mee. & W. 151; 3 Dowl. & L. P.C. 491.

An action was brought by M T against J S and W H. Au affidavit made after the appearance of defendants, intituled "Between M T, plaintiff, and JS and W P (miscalled W H), defendants," was held insufficient. Tagg v. Simmonds, 16 Law J. Rep. (N.S.) Q.B. 319; 4 Dowl. & L. P.C. 582.

Affidavits in support of a rule for judgment as in case of a nonsuit, entitled "Edward Lomax, plaintiff, v. William Wells Kilpin, defendant;" the defendant having been described as " W W Kilpin" in the writ of summons,-Held, sufficient. Lomax v. Kilpin, 16 Law J. Rep. (N.s.) Exch. 23; 16 Mee. & W. 94; 4 Dowl. & L. P.C. 295.

Defendant, whose name was J G, had been described in the writ of summons as H G, and a person named H G had appeared to the writ:Held, on motion by plaintiff B to set aside the appearance, that the affidavits were rightly entitled Bv. J G, sued by the name of H G. Belcher v. Goodered, 16 Law J. Rep. (N.S.) C.P. 176; 4 Dowl. & L. P.C. 814; 4 Com. B. Rep. 472.

Where the defendant's affidavits in support of a rule to set aside the proceedings in an action, after a rule to compute, for irregularity, were entitled "In the Queen's Bench, between William Frederick

D

Hodgson, plaintiff, and Benjamin William May, sued as B W May, defendant," and those of the plaintiff on shewing cause, "In the Queen's Bench, between William Frederick Hodgson, plaintiff, and B W May, defendant," and it appeared that in the writ of summons and all subsequent proceedings in the action the defendant was described by initials as "B W May,"-Held, that neither the defendant's nor the plaintiff's affidavits were wrongly entitled; and that stating the defendant's name at full length was no objection, as by the words "sued as B W May," the title was connected with the previous proceedings in the action. Hodgson v. May, 18 Law J. Rep. (N.s.) Q.B. 249.

Upon a motion against an attorney to pay over a sum of money received by him for his client in a cause, the affidavits may be entitled in the matter of the attorney. Ex parte Randall, in re 17 Law J. Rep. (N.S.) Q.B. 232.

Affidavits in support of a motion to compel an attorney to pay over money which he has received as attorney in a cause, may be entitled in the matter of the attorney, and need not be entitled in the cause. In re Wood, 6 Dowl. & L. P.C. 154. [See (L) COSTS.]

(C) BEFORE WHOM AND WHEN TO BE SWORN.

An affidavit of service of a rule, sworn before the British Consul, resident at Paris, is not sufficient. Williams v. Welch, 15 Law J. Rep. (N.s.) Q.B. 7; 3 Dowl. & L. P.C. 357.

Quare, whether an affidavit, which appears by the jurat to have been sworn in court on a Sunday, is void. Doe d. Williamson v. Roe, 15 Law J. Rep. (N.S.) Q.B. 39; 3 Dowl. & L. P.C. 328.

(D) JURAT.

[Regina v. Inhabitants of Bloxham, 5 Law J. Dig. 17; 6 Q.B. Rep. 528.]

An affidavit taken by a commissioner, in which the words "before me," in the jurat, were omitted, -Held, a nullity. Regina v. Inhabitants of Norbury, 15 Law J. Rep. (N.S.) Q.B. 264; 6 Q.B. Rep. 534, n.: s. P. Graham v. Ingleby, 1 Exch. Rep. 651.

It is a good objection to an affidavit being used, that the jurat omits to state the particular day of the month on which the affidavit was sworn. Duke of Brunswick v. Harmer, 19 Law J. Rep. (N.s.) Q.B. 456; 15 Q.B. Rep. 682, n.

[See (L) COSTS, and (E) DATE.]

(E) DATE [WHEN IT MAY BE SUPPLIED BY

JURAT].

no date appearing otherwise than in the jurat, is insufficient. Abrahams v. Davison, 6 Com. B. Rep. 622.

(F) DEPONENT'S DESCRIPTION.

An affidavit sworn in London, and describing the deponent as "agent for the defendant in this cause," is sufficient. Mathewson v. Baistow, 15 Law J. Rep. (N.S.) Q.B. 40; 3 Dowl. & L. P.C. 327.

An affidavit sworn for the purpose of obtaining a rule, by a party styling himself clerk to A & B, agents for the defendant," shews sufficiently that the application is authorized by defendant, if it does not appear that he is absent from the country. Slack v. Clifton, 8 Q.B. Rep. 524.

"H B, clerk to the above-named defendant," is not a sufficient description of a deponent in an affidavit. Elton v. Martindale, 5 Dowl. & L. P.C. 248.

Whether, in an affidavit, the description of the deponent at the commencement of it is a part of what he swears- quære. Regina v. Chapman, 18 Law J. Rep. (N.S.) M.C. 152; 1 Den. C.C. 432; 2 Car. & K. 846.

(G) INTERLINEATION.

The rule as to the exclusion of affidavits in the jurats of which there are interlineations, applies to affidavits sworn in India. In re Page, 5 Dowl. & L. P.C. 475.

(H) AMENDMENT.

[See In re Grantham, (B) WHEN AND HOW TO BE ENTITLED.]

(I) WAIVER [OF WANT OF ADDITION].

A Judge's order to allow plaintiff to sue in forma pauperis had been obtained on an affidavit which was defective for the want of an addition of the plaintiff's profession or occupation:-Held, that the defect was a mere irregularity, and that after several months had elapsed in which the defendant might have examined the affidavit, and in which various steps had been taken in the cause, it was too late for the defendant to move to set aside the Judge's order for the defect and dispauper the plaintiff, although it was sworn that the defendant had only acquired knowledge of the defect three days before the motion. Seymour v. Maddox, 19 Law J. Rep. (N.S.) Q.B. 525; 1 L. M. & P. 543.

[And see ABATEMENT (B) (k) 2.]

(K) FILING AND TAKING OFF THE FILE. Where a rule nisi has been granted, one of the terms of which is, that affidavits in answer shall be filed before a certain day, the Court will, upon reasonable ground being shewn, extend the time within which the affidavits must be filed. Regina v. Keen, 4 Dowl. & L. P.C. 622.

The Court will not allow additional affidavits to be filed in support of a motion for a new trial, after the expiration of the time for moving. Gibbs v. Tunaley, 1 Com. B. Rep. 640.

The Court will not order an affidavit which is not shewn to be scandalous or irrelevant to be taken off the file merely because it cannot, upon some technical ground, such as a defect in the jurat, be read in the cause in which it is filed. The Duke of Brunswick v. Sloman, 1 L. M. & P. 247.

(L) COSTS [UPON DISCHARGE OF RULE FOR DEFECTIVE AFFIDAVIT].

A rule for a new trial in an action of A v. B, tried before a sheriff, was obtained upon an affidavit verifying the sheriff's notes, which was entitled B plaintiff v. A defendant. The rule was discharged without costs. Bodley v. Reynolds, 15 Law J. Rep. (N.s.) Q.B. 152.

If the jurat of an affidavit used in support of a rule is defective in not containing the names of the deponents, the Court will discharge the rule, with costs. Cobbett v. Oldfield, 16 Law J. Rep. (N.S.) Exch. 150; 16 Mee. & W. 469; 4 Dowl. & L. P.C. 492.

Where the jurat of an affidavit, upon which a rule nisi had been obtained, was "sworn by A B the above-named deponent, at my chambers, Rolls Gardens, Chancery Lane, dated the 24th of April. EV Williams,"-Held, that the jurat was defective so as to prevent the affidavits being used; but in discharging the rule the Court refused to allow costs, and gave leave for a second application upon an affidavit of the same facts with a proper jurat. In re Lloyd, 19 Law J. Rep. (N.s.) Q.B. 457; 15 Q.B. Rep. 682.

(M) FRESH AFFIDAVITS [SECOND APPLICATION UPON].

Where a summons is dismissed by a Judge through insufficiency of affidavits, fresh affidavits cannot be used on applying to the Court. Hawkins v. Akrill, 1 L. M. & P. 242.

AGENT.

[See ATTORNEY AND SOLICITOR-PRINCIPAL AND AGENT.]

AGREEMENT.

[See ASSUMPSIT-CONTRACT-SPECIFIC PERFORMANCE.]

ALIEN.

[See HEIR OFFICIAL PERSONS-SETTLEMENT.] Naturalization of aliens facilitated by 10 & 11 Vict. c. 83. 25 Law J. Stat. 241.

The removal of aliens from the realm authorized by 11 Vict. c. 20. 26 Law J. Stat. 35.

A native-born Irishman, a British subject, married a French woman domiciled in France. They resided in France till the breaking out of the French Revolution, when they emigrated to Germany. The wife died in the lifetime of her husband, without having ever come within the territory of Great Britain:- Held, in such circumstances, that she did not by her marriage become a British subject, for that, while she remained abroad, she was not within the allegiance of the Crown of England.

An alien woman held real estates in Champagne in her own right, in fee simple, and these estates were expressly excluded by the marriage contract from the community of goods. By the custom of Paris, which governed this contract, these estates re

mained during the coverture the separate property of the wife, and she could during her husband's lifetime, with his consent, have alienated them away, and have absolutely disposed of them at his death, so as to exclude her issue's right to legitim. The estates were confiscated by the French Revolutionary Government under the law of the French Convention against emigration, and she died in her husband's lifetime, leaving issue a son, a British subject:-Held, that the son had neither an indefeasible nor a contingent interest in such estates, and that he was not entitled to indemnity for their loss. Held also, that the statute 7 & 8 Vict. c. 66. s. 16, by which an alien woman married to a natural-born subject is naturalized, is not a declaratory act.

By the common law of England, an alien woman married to an Englishman is not entitled to dower.

The Matrices de Roles, or assessments to the landtax of the year 1791, the primary evidence required by the Convention No. 7 for the purpose of ascertaining the value of the confiscated estates, not being forthcoming, it was held by the Judicial Committee that the Commissioners for liquidating the claims of British subjects in France were at liberty to adopt any other evidence which might appear to them most satisfactory in respect to the estate which was to be valued, such as the original purchase-money; the valuation of the parties themselves in any subsequent transactions; where there was a lease, the rack-rent; the rent, allowing a certain number of years' purchase, or the sum for which the property had been sold at the time of the confiscation. Count de Wall's case, 6 Moore, P.C. 216.

A female alien, who has married a natural-born subject is by virtue of the 7 & 8 Vict. c. 66. s. 16, naturalized, and acquires the status of a naturalborn subject; and, consequently, when indicted for an offence is not entitled to be tried as an alien by a jury de medietate linguæ. Regina v. Manning, 19 Law J. Rep. (N.S.) M.C. 1; 2 Car. & K. 887; 1 Den. C.C. 467.

[Fowler or Foster v. the Bank of England, 5 Law J. Dig. 19; 6 Q.B. Rep. 878; Jackson v. Galloway, 5 Law J. Dig. 20; 1 Com. B. Rep. 280.]

Where a writ had been issued, and a declaration delivered, in which a blank was left for the Christian name of defendant, to which he pleaded, and afterwards gave a written consent, signed with his name in full, to a Judge's order for payment of the debt, on which judgment was signed, - the Court,

a year and a half after judgment signed, amended the declaration and judgment, by inserting the Christian name of defendant, in order to enable plaintiff to proceed to outlawry. Wood v. Hume, 15 Law J. Rep. (N.s.) Q.B. 319; 4 Dowl. & L. P.C.

136.

The Court refused to allow a plea to be amended after judgment pronounced thereon. Smith v. the London, Brighton and South Coast Rail. Co., 7 Com. B. Rep. 793.

The Court refused to allow a replication to be amended after the lapse of a year after judgment pronounced on demurrer, the case having previously stood over that the parties might mutually agree to amend, and both having declined to do so. Hammond v. Colls, 3 Com. B. Rep. 212.

The Judge refused to allow an amendment at Nisi Prius as to the day of the demise, in order to give effect to the demand of possession, where the action if successful would defeat a family equitable arrangement. Doe d. Loscombe v. Clifford, 2 Car. & K. 448.

Where a cause had been made a remanet, but there was no respite of the award authorizing the issue of the jury process,-the Court ordered the error to be amended before the ensuing term, and proceeded with the trial. Ward v. Dalton, 2 Car.

& K. 659.

(b) To save the Statute of Limitations.

The Court permitted a plaintiff to amend an alias and a pluries writ of summons, by inserting therein the date of the first writ of summons, and the return, in order to save the Statute of Limitations. Culverwell v. Nugee, 15 Law J. Rep. (N.s.) Exch. 308; 15 Mee. & W. 559; 4 Dowl. & L. P.C. 30.

The Court permitted plaintiffs, in order to save the Statute of Limitations, to amend the writ of summons by describing themselves as assignees of a bankrupt and the defendants as the registered public officers of a banking co-partnership. Christie

v. Bell, 16 Law J. Rep. (N.s.) Exch. 179; 16 Mee. & W. 669; 4 Dowl. & L. P.C. 690.

Where in an action against A and B, as executors of C, plaintiff, after declaration and plea, discovered that C's widow was co-executrix with A and B, and the Statute of Limitations had become a bar since the commencement of the suit, this Court refused to allow the writ of summons to be amended by adding the name of the co-executrix as a defendant, considering that such amendment would not have been made before the Uniformity of Process Act.

Quare-If the application to amend had been made before declaration or plea. Goodchild v. Leadham, 17 Law J. Rep. (N.s.) Exch. 90; 1 Exch. Rep. 706; 5 Dowl. & L. P.C. 383.

The Court will not (even in order to save the Statute of Limitations) amend the indorsement upon a pluries writ of summons, though to make it conformable to the fact, because by stat. 2 Will. 4. c. 39. s. 10. the indorsement must have been made at the time of service of the writ. Medlicott v. Hunter, 19 Law J. Rep. (N.s.) Exch. 191; 5 Exch. Rep. 34.

(c) Misprision of Office. [See (e) of the Postea.]

(d) of the Record.

The proceedings upon an indictment, removed by certiorari, were continued on the plea-roll from the 11th of January 1843 to the 16th of April, and from that day to others, but there were no continuances from Easter term 1844, to Trinity term 1845. Judgment being given against the defendant, he brought error, assigning that the proceedings were not properly continued, the 16th of April being a Sunday, the following months being stated without mention of the year, and the continuances above mentioned being altogether omitted. The Court made a rule nisi, obtained by the prosecutor, absolute for leave to issue a venire facias juratores, as of the 11th of January, returnable on some day in Easter term 1843, and to amend the entry roll and record of Nisi Prius accordingly, and further to insert the years after the months, and the omitted continuances, in the roll and record. Regina v. Gregory, 16 Law J. Rep. (N.s.) Q.B. 281; 4 Dowl. & L. P.C. 777.

In an action on a bill of exchange, dated in May 1838, the original writ of summons into Middlesex was issued on the 15th of August 1844; on the 14th of January 1845 it was returned non est inventus and filed, and entered of record; on the same day an alias writ of summons was issued into Middlesex; on the 10th of June 1845, a pluries writ of summons was issued into Surrey, and served the same day, and the defendant duly appeared to it; the plaintiff declared, and the defendant pleaded that the cause of action did not accrue within six years next before the commencement of the suit. The alias writ of summons was not in fact returned or entered of record till the 4th of July 1845. The Nisi Prius record was made up, stating only that the defendant was summoned to answer the plaintiff by virtue of a writ issued on the 15th day of August 1844, and on its production at the trial the plaintiff obtained a verdict:-Held, that the provisions of the stat. 2 Will. 4. c. 39. s. 10. had not been complied

with, and the Court made absolute a rule to amend the Nisi Prius record by stating the continuances according to the truth, at the cost of the plaintiff.

Where a writ, issued within six years after the cause of action accrued, has not been duly continued, pursuant to the 2 Will. 4. c. 39. s. 10, the defendant is not bound to plead such non-continuance specially, but may take advantage of it under the general plea, that the cause of action did not accrue within six years next before the commencement of the suit; for, for this purpose, the last writ which is served is the commencement of the suit. Pratt v. Hawkins, 15 Mee. & W. 399.

[And see (f) Writ of Error.]

(e) of the Postea.

A Judge's direction as to the amendment of the postea cannot be questioned by the Court above. Daintry v. Brocklehurst, 18 Law J. Rep. (N.S.) Exch. 347; 3 Exch. Rep. 691.

A party cannot introduce a new averment into a postea. The Judge before whom a cause has been tried may direct a modification of the language of a postea, but the Court will not interfere.

A declaration in ejectment claimed in each of two counts one "pasture-gate," and one "cattlegate." The cause having been referred, the arbitrator found the lessor of the plaintiff entitled to three " pasture-gates." The postea described the tenements as "three pasture-gates, known sometimes as pasture-gates, sometimes as cattle-gates"; and an affidavit was filed stating that they were known by either name. The Court made absolute a rule for rendering the postea conformable to the award. Doe d. Haxby v. Preston, 16 Law J. Rep. (N.S.) Q.B. 337; 5 Dowl. & L. P.C. 7.

Where the finding of the jury on two breaches of covenant is manifestly inconsistent, as appears by the postea, the Judge who tried the case may amend the postea from his recollection or his notes after judgment has been entered up, and a writ of error brought, and argument thereon.

The plaintiff in an action on the husbandry covenants of a lease assigned as one breach that the defendant did not seed down a certain field at the time it was sown, whereby a certain penal rent became due for one half-year, which the defendant had not paid, &c., and assigned as a further breach the non-payment of a further half-year's penal rent, in respect of the same breach of covenant. The jury found for the defendant on the first of these breaches, and for the plaintiff on the last; and the entry on the postea was, as to the first breach, that the defendant did seed down, &c. at the time of sowing, and as to the last that the defendant did not seed down. Judgment having been entered up accordingly, it was assigned for error that the issue on the last breach should have been found for the defendant. After argument in the court of error the postea was amended by order of the Judge who tried the cause, the amendment being as to the first breach that the defendant did not seed down at the time of sowing, and that the sum claimed in such breach as penal rent did not become due, and as to the last breach that the sum mentioned in such last breach did become due :-Held, that the Judge had power to order such amendment to be made, and that the judgment roll was also properly amended

according to the amended postea. Bowers v. Nixon, 18 Law J. Rep. (N.8.) Q.B. 41; 12 Q.B. Rep. 546. [And see (f) Writ of Error.]

(f) Writ of Error.

A writ of error being directed to the Chief Justice of the court "to return a transcript of the record and proceedings" to the court of error,-Held, that the Court below could not amend the return of the Chief Justice; the course is to allege diminution, and move the court of error if amendment is required. Newton v. Boodle, 18 Law J. Rep. (N.S.) Č.P. 72; 6 Com. B. Rep. 529.

An application to enter on the judgment roll orders charging stock in execution under 1 & 2 Vict. c. 110. s. 14, for the purpose of having them reviewed by a court of error, was refused. Newton v. Boodle, 18 Law J. Rep. (N.s.) C.P. 73; 6 Com. B. Rep. 532.

A writ of error was directed to M T B, Esq., "Recorder of the court of record of and for the borough of K." The return was made by M T B, Esq., " Judge of the court of record of the borough of K." It appeared that the court of record of the borough of K was an ancient court of record, and that the recorder acted as Judge, under the 5 & 6 Will. 4. c. 76. s. 118. On motion to quash the writ of error for irregularity, the Court allowed the plaintiffs to amend the writ of error by inserting the word "Judge" instead of "Recorder."

Where the declaration contained two counts, one of which was bad, and the verdict in the court below was taken generally for the plaintiffs,-Held, that the Court in bank had no power, after error brought, to amend the verdict, by confining it to the sufficient count. Spencer v. Haggiadur, 5 Dowl. & L. P.C. 68.

(B) AT NISI PRIUS.

(a) In Cases of Variance under 3 & 4 Will. 4. c. 42. s. 23.

[Boucher v. Murray, 5 Law J. Dig. 22; 6 Q.B. Rep. 362.]

Declaration stated that defendant sold to plaintiffs 485 tons of coals, subject to the conditions that they were of a suitable quality to be used in steam vessels, and were adapted for all closed furnace or stove fires, where a strong, steady, and lasting heat was desirable; that they would burn with little or no smoke, would make but a small quantity of ashes, would ignite readily with a good draught, would open and swell out, would not cake and unite like the bituminous coal, and would burn without being stirred. Declaration then stated that the coals did not possess the properties above stated. Prior to the sale, defendant handed to plaintiffs a printed advertisement or statement, in which the qualities of the coals were described in the manner stated in the declaration. Plaintiffs afterwards purchased the coals, when an invoice was sent to them, which described the coals in question as 66 steam coals." The coals having proved unfit for steam purposes, plaintiffs brought an action for a breach of the conditions contained in the printed statement, but failed to prove that such a statement constituted the contract. The Court amended the declaration by substituting, instead of the contract declared on, a