EXCHEQUER OF PLEAS. A Declaration commencing in the ordinary form of an action of debt, and concluding thus, "yet the defendant hath disregarded his promises, and hath not paid any of the said moneys, or any part of them." Held bad on special demurrer, it being doubtful whether it was a declaration in debt or assumpsit. The queritur in the commencement of a declaration in debt is not material, and therefore the sum claimed in it not covering the sum claimed in the counts, is not a good ground of special demurrer. The declaration contained the money counts, and was as follows:-"H. B. a debtor, &c., comes before the Barons, &c., and complains against J. S. the defendant, &c., of a plea that he render unto the said plaintiff the sum of £49, which he owes to and unjustly detains from him." Then followed the money counts, and concluded thus-" Therefore the defendant afterwards, to wit (venue), in consideration of the premises respectively, then and there promised the plaintiff to pay him the said several moneys respectively on request, yet he hath disregarded his said promise, and hath not paid any of the said moneys, or any part thereof, to the damage, &c." Special demurrer on the ground that by its commencement the declaration purported to be in debt, yet in the conclusion adopted the form of assumpsit; also on the ground that the sum demanded in the counts exceeded the sum demanded in the queritur, and other grounds, on which, however, the judgment of the court did not turn. Phillips for the demurrer. It would be impossible for the pleader to decide whether his plea should be nil debet or non assumpsit. If this be treated as a count in debt, then there is no breach assigned; besides it deviates from the forms prescribed by the Judges, (Gen. R. E. T. 1832,) which is one of the grounds of demurrer assigned. Knox v. Irwin, (6 I. L. R. 250); Roiling v. Muggeridge, (16 M. & W. 181). Fitzgibbon, Q. C., with him Fenton, contra. The words having reference to the promise may be struck out as surplusage, and the breach remains sufficient. It is laid down in Gilbert on Debt, p. 414, that the per quod is not essential in all cases. As to its deviating from the forms, the question must always be, is there a substantial deviation. The declaration states the cause of action correctly in the commencement, then in the conclusion the promise may be struck out as surplusage, and this being a debitum in præsenti the per quod is unnecessary. Lord v. Houston, (11 East. 62,) decides that the queritur is superfluous, and therefore the objection that the sum demanded in the counts exceeds that specified in the queritur falls to the ground. Counsel also relied on Compton v. Taylor, (4 M. & W. 138); Cloves v. Williams, (3 Bing. N. C. 868; 2 Chitty, 384.) LEFROY, B.-The object of the new rules was to prevent expense. They supply forms for both debt and assumpsit; you follow neither. PIGOT, C. B. That part of the commencement, "that he render to the plaintiff the sum of £49, which he owes to, and unjustly detains from," is unnecessary, and the sum may therefore be struck out, on the authority of Lord v. Houston. PENNEFATHER, B.-It is ambigious whether this is a count in debt or assumpsit, and this ambiguity is calculated to embarrass the pleader on the opposite side, and the court ought not to be called upon to spell out a pleading in this way, when there are forms prescribed by the rules. PIGOT, C.B.-We are all of opinion that this declaration is vicious upon one of the grounds assigned as a special cause of demurrer, and noted for argument, namely, that it is doubtful whether the declaration is framed in debt or assumpsit. If this were a mere departure from the ordinary form of pleading-not such a one as would be calculated to mislead the pleader-the court would endeavour to make an intendment to uphold the pleading; but coupling the commencement of this declaration with the part preceding the laying of the damages, it is evident that it is likely to mislead the pleader, and leave him in doubt as to the frame of his defence. Lord v. Houston is an authority that the "render" in the commencement is superfluous, and may be omitted. If so, the rest constitutes a good declaration in assumpsit; but the argument of the plaintiff is, that the promise may be struck out from the conclusion, and thus it may be treated as a count in debt. Now this is the very thing which constitutes the ambiguity, and makes the pleading vicious. In the case of Clowes v. Williams no doubt could exist as to what was the nature of the count. In Compton v. Taylor the demurrer was taken for misjoinder, and the point raised here was not argued the demurrer taken having been too large. If a great difficulty did not exist here, I would not be disposed to allow the demurrer; but as it is, we are of opinion that the declaration is vicious. Allow the demurrer, but liberty to plaintiff to amend. Baldwin v. IrvINE.-April 21-23. Trespass for Mesne Rates-Agreement for stay of Execution in Ejectment-Judgment in Ejectment conclusive Evidence of Possession. Where the defendant in ejectment, pending the proceedings, entered into an agreement, subsequent to the service of ejectment, with the agent of the lessor of the plaintiff, to give a consent for judgment, with a stay of execution, and that he should have the crops, in an action of trespass for mesne rates-Held that this agreement did not preclude the plaintiff from recovering nominal damages for the trespass, antecedent to the date of the agree ment. This was an action of trespass for mesne rates, and had been tried before Mr. Justice Ball, at the Spring Assizes for Limerick, 1848. The declaration contained one count. Pleas; the general issue, and leave and license of the plaintiff. The plaintiff, to prove possession, gave in evidence, amongst other things, the ejectment process, by which the date of the demise appeared to be the 12th of May, 1845, the judgment in ejectment, with stay of execution till the 1st of December, 1845, and the execution of the habere on the 5th of December in the same year. On the part of the defendant, a person named Langford, who was in possession of the evicted premises, proved a parol agreement on the 20th of August, 1845, between him and a person named Sheehy, the agent of the plaintiff, to the effect, that the witness was to have the crops, and the plaintiff to give a stay of execution till the 1st of December following. The learned Judge told the jury to find the value of the mesne profits from the 19th of May to the time of the execution of the habere, on the 5th of December, 1845; and also the value from the 19th of May to the date of the agreement in August, and reserved leave for the plaintiff to move to enter a verdict for either of said amounts. To this direction the plaintiff objected. Verdict for the defendant. O'Brien, Sergeant, J. D. Fitzgerald, Q.C., and Synan, now moved to make absolute the conditional order obtained on a former occasion, pursuant to the leave reserved. They contended, that this agreement was inadmissible under the plea of the general issue, Bird v. Randall (3 Burr. 1345; 1 Sid. 293; Chit. Pl. 5 ed. 539, 545)-that the judgment in ejectment was conclusive to prove the possession of the plaintiff, and that the defendant could not be admitted to disprove the title of the plaintiff, Askin v. Porkin (2 Burr.665); Armstrong v. Norton (2 Ir. L. Rep. 96); and that even if the agreement was admissible in this case, that it would not preclude the plaintiff from recovery in trespass, as the right of possession was in him from the date of the demise, Nugent v. Phillips (8 I. L. Rep. 17); and that, supposing this agreement amounted to leave and license, it could only be so from the date of the agreement, and, not having been specially pleaded, left the trespass between the date of the demise in the lease to the date of the agreement unanswered, (Bac. A. tit. Rel. letter A. Pl. 1); Barnes v. Hunt (11 East. 451). [They also cited Doe v. Harvey, (8 Bing. 242); Jones v. Gibbs, (2 Hud. & Bro. 537); Doe v. Hill and Lee (4 Taunt. 458); Dodwell v. M'Donnell (2 Car. & P.); Doe d. Morgan v. Blick, (3 Camp. 447).] Henn, Q.C., (Leahy with him) contra, contended that the defendant could not be treated as a trespasser that by the terms of the agreement, the defendant had yielded his right on the faith of not being treated as such. In Nugent v. Phillips, there was no mention of the crops, which clearly distinguishes it from this case. No objection to the form of the pleading was made at the trial. J. D. Fitzgerald, Q.C., was heard in reply. Pennefather, B.,* delivered the judgment of the court. The court feels some difficulty, both on the law and the merits of this case. Considering the whole case, and attending to the state of the pleadings, we are of opinion that the plaintiff should have judgment for £10. I feel great diffiin evidence under the general issue; and there is culty in saying that this agreement could be given also some difficulty in adopting the view taken, that the agreement was intended to include more than the crops. April 23. PENnefather, B.-On further consideration of this case, we find ourselves coerced by the authorities cited on the part of the plaintiff, and are of opinion that the verdict should be changed to a verdict for the plaintiff with nominal damages. HARRIS v. GOOD.—April 21. Practice-Costs of Commission-3 & 4 Vic. c. 105, s. 69. Walker, Q.C., moved in this case for a commission under the provisions of the 3 & 4 Vic. c. 105, s. 69, to examine Lady Bradford, a witness in the cause, and that, in the mean while, all proceedings be stayed. The affidavit of the defendant's attorney stated, that the action was brought against the defendant as the drawer of a certain bill of exchange-that he believed he was a minor at the time of the making of the bill in question-that he believed Anne Elizabeth Lady Bradford resided in London, and was a material witness to prove the infancy of the said defendant, and that he believed that she was unable to come to Dublin to attend the trial. J. D. Fitzgerald, Q. C., with Semple, contra, admitted the plaintiff's right to the commission, but contended the costs should be borne by the defendant, the proceeding being entirely for his benefit. [Lefroy, B.-If the lady was brought here as a witness, and you failed in your action, you should pay her expenses. Before the statute was passed, the party who required the testimony of a witness abroad, filed his bill in Equity for a commission to examine him, and the cause was stayed till the suit in Equity was ended.] That was the ground on which the court proceeded in the case of Brydges v. Fisher (1 Bing. N. C. 513). The statement in this affidavit is only on belief as to the material facts. There is no statement as to what length of time they require; the notice seeks indefinitely to stay our proceedings. LEFROY, B. The plaintiff is entitled to come here to see that the commission is not used for the purposes of delay; besides, the affidavit on which the defendant relies is only on belief. I will give the plaintiff the costs of the motion; the costs of the commission to be costs in the cause. The officer reports, there is no instance of the costs of a commission to examine witnesses being otherwise than costs in the cause. Rule accordingly. Before Pennefather, Richards, and Lefroy, B.B. The Lord Chief Baron was at Nisi Prius, COURT OF CHANCERY. ORR v. MILLIKEN.-April 26. Administrator—Costs. An administrator, by his answer, put forward accounts which were completely falsified; he was charged with the costs of the suit. This case came before the Court on report and merits. The bill had been filed by the next of kin of Mary Orr, for an account of her personal estate, against her administrator, John Milliken. It appeared that the property of the intestate comprised her interest in a public-house, which the defendant had continued to manage after her decease, but had kept no accounts of the trade of it. The bill was not filed till after several applications for an account. In the account furnished in answer to the bill, the defendant had claimed credit for the maintenance of the plaintiffs, against the general personal estate of the intestate, and stated that the profits of the public-house, above the cost of stock, amounted to only £150, during the period of his management. He claimed, for shopman's wages and head-rent, a sum which more than absorbed that £150, and a sum of £642 13s. for maintenance, clothing, and education of the plaintiffs; but the Master reported that there was due from the defendant the sum of £677 6s. 8d., after all credits. He did not find the value of profits of the public house, no accounts having been kept; but he found specially that the plaintiffs and the shopman were maintained out of the profits of it, and that the stock, license, and incidental expenses of the public-house were defrayed out of those profits, and that it was for the benefit of the plaintiffs that those matters of expenditure should be set off as against the profits of the establishment, the defendant having consented to that set-off; and further found that the defendant drew out of the Savings' Bank, at different times, the sum of £540 8s. 8d., the money of the intestate, and retained it in his own hands, a portion till he lodged it in Court, and the residue till the date of the report. Mr.Molyneux, Mr. R.Moore, and Mr. Macartney, for the plaintiffs. We seek to deprive the defendant of his costs, and to charge him with ours, in this suit, which he has occasioned by his misconduct and falsified accounts. Vaughan v. Thurston, (Collis, Appeal Ca. 177;) Ashburnham v. Thompson, (13 Ves. 402 ;) Flanagan v. Nolan, (1 Moll. 84;) Coffrey v. Darby, (6 Ves. 488;) Anon. (4 Mod. 273;) Jebbs v. Carpenter, (1 Mod. 290;) Mr. McDonnell and Mr. T. K. Lowry, contra. Travers v. Townsend, (1 Roll. 495;) Flanagan v. Nolan, (1 Roll. 84;) Heighington v. Grant, (I Phil. 600.) THE LORD CHANCELLOR.-The real question here is, with respect to the costs of this suit, by whom they should be borne. The defendant is an administrator—a volunteer; he has not been appointed as an executor. With respect to his administration, nothing like default has been shown. The money of the intestate and her fixed property are all forthcoming. The question is not about that, but by whom, or why, the expense of this suit has been occasioned. It was brought against the administrator, to compel him to account. Before the bill was filed, he had been applied to for an account; that which he gave corresponded with that in his answer, admitting the moneys which he had received, but making charges which swallow up the whole fund. One allegation is, that he bore the whole expense of maintaining of the plaintiffs, and that in effect they are not entitled to receive any money, but that they would have been by this time in his debt, not he in theirs. The answer alleges that he carried on the business of the public-house, and advanced money for that purpose and for their support. Now, that answer and that account have been falsified in every particular. One witness swears that all those expenses were borne out of the profits of the establishment. What is the meaning of "PROFITS?" It clearly means the net proceeds, after paying the outgoings. In the common import of words, profits must mean that the establishment paid its own expenses, and produced a fund out of which he maintained the children. I never have seen the account of an administrator more falsified; his only equity is, that he kept no books; but it was his duty to keep them; he ought to be able to produce regular accounts. It is manifest, that before the bill was filed he made a similar claim. I should hold out a terrible example to executors, if I decided that the miserable fund of these infants should be swallowed up by the costs of falsifying this account. This court is slow to charge executors, but it is not to allow them to put forth what accounts they please. I do not think I ever saw a case call more for its interference. The defendant must pay the entire costs of this suit. ROLLS COURT. BELMORE v. BELMORE.-SAME v. AUCHINleck. Jan. 17. Judgment Creditor proceeding at Law-Order to restrain-Decree to account. A judgment creditor, with notice of a decree to account in a suit to administer the assets of his debtor, will be restrained from proceeding at law on foot of a judgment, and it appearing that the judgment creditor proceeded at law after notice of the decree, he was directed to pay the costs of the motion. On the 15th of February, 1848, a decree was pronounced in the first cause, whereby it was referred to the Master to take an account of the personal estate of Somerset, late Earl of Belmore, and of Armar, late Earl of Belmore, (executor of Somerset) into whose hands same came, and how applied and disposed of, and also an account of their respective debts, legacies, and funeral and testamentary expenses of their real estate, and the debts, &c. affecting same, and to appoint a receiver. In April following a receiver was appointed, and several creditors filed charges under said decree. G. H. Stack having, in 1839, obtained a judgment against Somerset, Earl of Belmore, in the penal sum of £4000 in 1846, assigned same to the defendant Auchinleck, who, on the 13th of March, 1848, attended in the Master's office, upon a summons under the decree in the first cause. On the 16th of May following, Mr. Auchinleck revived said judgment April 17-In this case, his Honour, after referring to the cases of Clarke v. Lord Ormonde, Rouse v. Jones, (1 Ph. 462, and also 1 Ph. 466;) and the statute, 5 Geo. 2, c. 5, s. 8, said he considered he was justified, on the authority of Clarke v. Lord Ormond, in granting the injunction, and made the following order :-"Be it so as to the restraining part of said notice, and the said D. Au 1848, of the decree to account in this cause, bearing date the 15th of February, 1846, and having taken proceedings against the defendant, the Right Hon. H. P. L. Corry, and marked judgment by default, and issued the fi. fa. against the goods of Somerset, Earl of Belmore, deceased, after notice of said decree let said Daniel Auchinleck, pay to said defendant the costs of this motion, when taxed, &c. against H. T. Lowry Corry, as executor of Armar, Earl of Belmore. The defendant Auchinleck not having proved his demands under the decree in the first cause, on the 30th of October, 1848, a supplemental bill was filed, by which he was made a notice party under the fifteenth general order, and was served with notice, and not having entered an appearance, a memorandum was entered, pursuant to the sixteenth general order. Notwith-chinleck having had notice on the 13th of March, standing these proceedings, Mr. Auchinleck issued a writ of fi fa de bonis testatoris directed to the sheriff of Dublin, and on the 18th of December, caused notice of speeding an enquiry before said sheriff to be served on H. T. Lowry Corry, to ascertain whether goods and chattels which were of said Somerset, Earl of Belmore, sufficient for the purposes of said writ of fi fa came to the hands of said H. T. L. Corry. From the affidavit of Mr. Lowry Corry's solicitor, it appeared that there were judgment and other debts outstanding against Somerset, Earl of Belmore, to the amount of more than £100,000, and that several of said judgments were prior to that vested in the defendant Auchinleck. Mr. Auchinleck by his affidavit stated that he was a creditor by judgment of Somerset and Armar, late Earls of Belmore, to the amount of between £40,000 and £50,000. Mr. Lloyd, on behalf of the defendant, H. T. L. Corry, moved that the defendant, D. Auchinleck might be restrained from further proceedings at law, on the writ of fi fa sued out by him against the goods of Somerset, late Earl of Belmore, and that he might be directed to come in and prove under the decree in this cause, the several judgment debts due to him; and relied upon the cases of Vernon v. Thelusson, (1 Phil. 466); Kirby v. Barton, (8 Beav. 45); Dyer v. Kearsly, 2 Mer. 482); Clarke v. Lord Ormonde, (Jac. 108); Rouse v. Jones, (1 Phil. 462.) Mr. Sheil, Q.C. and Mr. Deasy, Q.C. for defendant Auchinleck, contended that the court should not deprive the defendant of his legal advantage, Price v. Evans, (4 Sim. 514); Kent v. Pickering, (5 Sim. 569); Leigh v. Parke, (1 Keene, 714); and contended in the cases cited there was no judgment, except in the cases in Beavan. Mr. C. Henderson in reply.-The judgment is de bonis testatoris, and the enquiry is as to the assests of the testator. Dyer v. Kearsly, (2 Mer. 482.) In Clarke v. Lord Ormonde, Lord Eldon said if the judgment was de bonis testatoris it would be a clear case for an injunction. Jan. 18.—Mr. B. Lloyd. The statute law in this country, 5 G. 2, c. 4, puts the case of judg ments against executors on a different footing from what they are in England; for such judgments in this country are in fact only initiatory, until an inquiry is held under that statute before the sheriff, and no execution can be taken out against the executor until the sheriff returns a devastavit, which he cannot do if there are any assets, whereas in England the plaintiff himself merely suggests a devastavit; so that this Court, by stopping that inquiry of which notice has been given, but has not yet commenced, can prevent the judgment from being rendered final against the executor. Egan v. Baldwin, (1 Hog. 195, Yeo. & B. Ex. Pr. 394.) MURPHY v. BALFE-Feb. 27. Practice.-Production of documents. The bill in this cause was filed to raise the amount of a judgment, obtained, as of Michaelmas Term, 1832, against Michael Balfe the elder, and Michael Balfe the younger, and for an administration of their real and personal estates respectively. Mr. Hughes, Q.C. with him Mr. Deasy, Q.C.moved for the production of various title deeds and family settlements, admitted by the answer of the defend ant James Balfe to be in the possession of his solicitor.-No objection was made in the answer to their production. Mr. Lawless resisted the motion as to some of the deeds, on the ground that the defendant was only expectant tenant for life, and that John Breen a minor, the party in whom was the first vested estate of inheritance, was not before the Court; and cited Glover v. Hall, (2 Phi. 484.) MASTER of the ROLLS.-This point occurred in Dundas v. Blake, (9 Ir. Eq. 640, R.; S. C. 10 Ir. Eq. 260, C.) where I decided, in a suit affecting the inheritance, that in the absence of the minor tenant in tail, I could not, on the admission of the tenant for life, order the production of a family settlement. The case subsequently went before the Chancellor, and he ordered its production. Sitting here, I am bound by that decision, although I adhere to the view I expressed in my judgment in that case, which, I think, is in accordance with English decisions and plain principles of justice. LINDSAY v. LINDSAY.-March 12. Bill stated, that in 1838, J. W. made a will, that in 1845 he made another will, by which the former was revoked that in 1846 the second will was destroyed, by the direction of said J. W, and in 1848, J. W. died intestate, and plaintiff, as heir-at-law, entered into possession of all his real estates, and prayed that the evidence of the witnesses to the will of 1845, and of the person who destroyed same, might be perpetuated. Plea, that there were tenants in possession of some of the real estate who had not paid rent to, or acknowledged plaintiff, and the matters in dispute could be immediately tried by action at law against same. Held, that the plea should be allowed. The bill in this case stated, that John Lindsay being, in the year 1888 and until his death, seized in fee of the house and demesne of Laughry, the manor of Lindsay, and other estates in the county Tyrone, on the 3rd day of April, 1838, made his will, and thereby, after some specific legacies, devised to his wife and her heirs all the lands of which he should die possessed, subject to the payment of his just debts, and he appointed his said wife executrix thereof-that on the 5th of December, 1845, said John Lindsay made another will, whereby he demised to his uncle, F. Lindsay, all his estates, remainder to his son, subject to certain legacies, and, amongst, others, £700 per annum to his wife, as already provided for her jointure, and appointed a person named John White executor thereof. The bill then stated, that said last mentioned will was all in the hand-writing of the said John Lindsay, and was read by him before its execution, and his signature thereto was acknowledged by him in the presence of two witnesses, John Church, of, &c., and William Macan, who attested same, by the desire of the said John Lindsay-that some time after said will was executed, it was delivered by said J. Lindsay to said John White, the executor named therein, to be kept by him, who several times read same, and which remained in his sole possession-that said J. Lindsay, on the 1st of April, 1846, came into the room of the said John White, and, after some conversation about some of the bequests in said will, in which said John Lindsay expressed an intention of altering same, or making a new will, said John White, in the presence of the said J. Lindsay, and by his direction, destroyed said will in the firethat this was done with the intention of revoking same-that after the destruction of said will, said J. White expressed a wish to see J. Little, a soli-tuate the testimony of the said witnesses, and the citor, for the purpose of preparing another will, but said Little did not attend-that J. Lindsay died on the 7th of August, 1848, seized in fee of said manor, lands, &c., without having made any other will, and without having re-executed said will of the 3rd of April, 1838, whereby he died intestate-that said J. Lindsay had no issue, and his father died in the lifetime of said J. Lindsay, and plaintiff, as eldest brother of his father, was heir-at-law of said J. Lindsay, and entitled to all the estates of which he died seized that shortly after the death of said J. Lindsay, plaintiff entered into possession of said house and demesne, and of the other real estates of which J. Lindsay died seized, and was then in possession thereof-that Harriet H. Lindsay, the widow of said J. Lindsay, claimed said estate, under the said will of the 3rd of April, 1838. The bill-after alleging several pretences by said H. H. Lindsay, and that she refused to try whether said will of 3rd of April, 1838, had been revoked until after the death of the witnesses to the will of December, 1845, or of the said John White, who could alone prove the contents of said will, and its destruction-prayed, that plaintiff might be at liberty to examine the witnesses, with respect to the execution and attestation of said will of December, 1845, and the sanity of the said J. Lindsay at the time of making same, and with respect to the contents of the said will, and its subsequent destruction-that their plea concluded with the usual averment. Mr. Longfield, Q.C., and Mr. Dobbs, for the plea. In order to maintain this bill, the plaintiff must shew that he cannot try the validity of the will by any proceeding at law; but it is admitted that there are several tenants who have not paid rent to, or acknowledged the plaintiff; therefore, by action for rent against them, this question may be immediately tried, and testimony should only be perpetuated in those cases where the plaintiff cannot, by any means, assert his rights, Dew v. Clarke (1 Sim. & St. 108). The testimony cannot be used till after the death of the witness, and if he swear falsely, he must go unpunished, Angell v. Angell (1 Sim. & St. 89). Counsel also relied on Bechinall v.Arnold (1 Vern. 354), Parry v. Rogers (ib. 441), Brandlyn v. Ord, (1 Átk. 571), Butcher v. Butcher (1 Man. and Ry. 221), Kirkman v. Andrews (4 Beav. 558). March 13.-Mr. F. Fitzgerald, Q.C. and Mr. A, Henderson for the bill. The preservation of the plaintiff's right depends on the testimony of a single witness; and the objections made on the other side would apply, with equal force, to every bill to perpetuate testimony. By not demurring the defendant admits there is a proper case made by the will, and the facts stated in the plea are not sufficient to disentitle the plaintiff to relief; for, as to the lands in the possession of the plaintiff, no |