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We therefore think the verdict must be entered for the plaintiff upon the general issue, as well as upon the issues arising on the special pleas.

Verdict for the plaintiff.

1835.

HUBER

ບ.

STEINER.

LESLIE and Others, Assignees of CUMBERLEGE, the
Younger, a Bankrupt, v. GUTHRie.

THE defendant, on the 8th May, in Easter Term last,
obtained judgment on demurrer to one of the pleas-vide
ante, Vol 1, p. 683. On the 6th day of the present

term

Atcherley, Serjeant, for the defendant, obtained a rule calling upon the plaintiffs to shew cause why judgment as in case of a nonsuit should not be signed, the plaintiffs not having given notice of trial, and why the money paid into court in the cause should not be paid out to Messrs. Inglis & Co., the real defendants.

Bompas, Serjeant, shewed cause.-There has been no default: the plaintiff could not take any step pending the demurrer. One step in a term is sufficient. To entitle the defendant to move for judgment as in case of a nonsuit, no notice of trial having been given, there must be a term's default-Butcher v. Kiernan, 2 Marsh. 364. The plaintiffs have the whole of the present term to give notice.

Atcherley, Serjeant, in support of his rule.-When the trial is to be had in London, and notice is given for the sittings in term or for the first day of the sittings after term, it must be an eight or fourteen days' notice: but, if the notice be given for the adjournment day, it is sufficient to give such notice four days before the first day of the sittings after term, if the defendant reside within forty

Monday, June 15th.

Where there were several

pleas, on some

of which issue was joined, and as to one a demurrer upon which judgment was given for

the defendant

four days before the end of

Easter Term

The court re

fused to allow

the defendant to sign judgment as in case of a nonsuit in Trinity Term, on the ground

of the want of

a notice of trial

for the adjournment day of the

sittings after Easter Term.

1835.

LESLIE

v.

GUTHRIE.

miles from London-R. E. 51 Geo. 3.

The step to be

taken in order to prevent a judgment as in case of a nonsuit, must be a step touching the issue in fact. Here, the demurrer was disposed of on the 8th May: there was therefore ample time in the last term for the plaintiffs to give notice, the term not ending until the 13th.

TINDAL, C. J.-I do not think there has been such a default here as to warrant us in interfering, though Paxton v. Popham, 11 East, 366, is an authority to shew, that, after judgment for the defendant on demurrers to certain special pleas, there may be judgment of nonsuit against the plaintiff for not proceeding to trial upon other general pleas on which issues have been joined.

The rest of the court concurring

Rule discharged, without costs.

Monday, June 15th.

COLLINS and Another v. GWYNNE.

Where a special JUDGMENT having in Hilary Term, 1833, been sign

case, on which judgment had been given for the plaintiff in this court, was at the instance

ed for the plaintiffs on a special case, and the costs taxed and paid, the defendant obtained leave to turn the special case into a special verdict. The record was then removed of the defendant by writ of error to the Exchequer Chamber, where the special verdict, judgment of this court was affirmed, with costs.

turned into a

that he might

have an oppor

tunity of obtain

Taddy, Serjeant, for the plaintiffs, obtained a rule calling the judging upon the defendant to shew cause why the prothono

ment of a court

of error thereon, tary should not tax the plaintiffs the costs of and occasioned

this court, after

the lapse of two by the turning the special case into a special verdict, enyears, and after tering on the roll the special verdict, and carrying the

the costs of the

trial and special transcript into the court of error.

case had been taxed and paid,

refused to allow the plaintiff the costs thereby occasioned.

Bompas, Serjeant, shewed cause.-He contended, that, as to the costs occasioned by turning the special case into a special verdict, the application being made at so late a

period (two years having elapsed since those costs were incurred) the court ought not to entertain it; and that, with respect to the costs arising after the allocatur and before the record reached the court of error, they were never allowed in the court below.

Taddy, Serjeant, in support of his rule.-The defendant having brought a writ of error returnable in parliament, the plaintiffs are compelled to complete the roll in this court: consequently, the costs prior to the transcript reaching the Exchequer Chamber are clearly costs occasioned by the writ of error, but such as could not be allowed on taxation there. Then, with respect to the costs occasioned by turning the special case into a special verdict, inasmuch as that was matter of favour accorded to the defendant, he ought to pay those costs.

TINDAL, C. J.--The costs which the plaintiffs claim by this motion may be divided into two classes-first, those occasioned by the application of the defendant to turn the special case into a special verdict-secondly, the costs of entering the special verdict upon the roll, which costs had not been incurred when the costs of the trial and of the special case had been incurred. With respect to the first set of costs, it was certainly a matter of favour to the defendant to allow the special case to be turned into a special verdict; and I do not say that we should not have compelled him to pay the costs occasioned thereby, had the plaintiffs asked for them at the time. But, after the lapse of two years, I think it would be a little hard to inflict those costs upon the defendant. As therefore this is an application to our discretion, I am not, under the circumstances, disposed to accede to it. With regard to the costs of entering the special verdict on the roll, and carrying the transcript into the Exchequer Chamber, they properly belong to the plaintiff below on the affirmance of

1835.

COLLINS

v.

GWYNNE.

1835.

COLLINS

v.

GWYNNE.

the judgment, unless (and I am not quite clear that it is not so) they are included in the costs usually awarded on affirmance in parliament. The matter must therefore go back to the prothonotary, to reconsider as to the lastmentioned costs.

The rest of the court concurring

Rule accordingly.

Tuesday,

June 16th.

PIERCE v. FOTHERGILL.

The service of ASSUMPSIT on a promissory note for 3917. 10s. made

the writ of summons in an

action on a pro

missory note

payable (with

out interest) on demand, is a sufficient demand to entitle

the plaintiff to recover interest

from the date of

such service.

by the defendant and payable to the plaintiff (without any mention of interest) on demand. The note was dated the 1st August, 1833; the writ of summons was served on the 22nd March, 1834, no previous demand having been made; the declaration contained no count for interest. The cause was tried on the 20th May, 1835. It appeared at the trial before Tindal, C. J., at the sittings in London after the last term, that the consideration for the bill was money lent. A verdict having been found for the plaintiff for the amount of the note, with interest from the day of its date

Heaton obtained a rule nisi to reduce the verdict by the whole or part of the interest.-He submitted, that, as the note contained no contract for interest, and there had been no demand prior to the commencement of the action, the plaintiff was not entitled to any interest, unless the service of the writ of summons should be held to be a demand, which he submitted it was not, inasmuch as by the uniformity of process act, 2 Will. 4, c. 39, and the rules founded thereon, the writ was now the commencement of the action.

Talfourd, Serjeant, and Steer, shewed cause. The consideration for the note being money lent, the jury were warranted in giving interest in the shape of damages for the detention-Nichol v. Thompson, 1 Camp. 52, n.; Calton v. Bragg, 15 East, 223; Bruce v. Hunter, 3 Camp. 467; Slack v. Lowell, 3 Taunt. 157; Harrison v. Allen, 2 Bing. 4, 9 Moore 28 (a). The plaintiff was at all events entitled to interest from the service of the writ of summons, that being equivalent to a demand.

Heaton, in support of his rule.-The latitat, it is true, was held equivalent to a demand; but that process was not (as the writ of summons now is) the commencement of the action.

PER CURIAM.-We think the plaintiff is entitled to interest from the date of the service of the writ of summons, which has precisely the same effect in this respect as the filing a latitat according to the old practice.

Rule absolute accordingly.

(a) See Fruhling v. Schroder, ante, p. 143.

1835.

PIERCE

ບ.

FOTHERGILL.

THIS

LEONARD v. CHARLES SIMPSON, Executor of

STEPHEN SIMPSON, Deceased.

was an action of debt upon a judgment obtained in an action of covenant for arrears of an annuity, against the defendant as executor of Stephen Simpson, deceased, with a suggestion of a devastavit. The defendant pleaded

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dence the record in the original action, and a testatum fi. fa. thereon, with the sheriff's return that he had caused to be levied the costs de bonis propriis of the defendant, and that the defendant had no goods or chattels of the testator in his hands to be administered:-Held, that this was prima facie evidence of a devastavit.

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