Howarth and Corner, contra, were not called upon. COLERIDGE, J.-I entertain no doubt in this case. It is conceded, that all the facts stated in the examina tions might have been successively denied by separate traverses; but that destroys the argument against the general traverse, because the traverse which is objected to is as if every one of the matters stated in the examinations were introduced into it and traversed. I do not think there is any great inconvenience in this mode of traverse; but the decision of the sessions upon this subject would have been final; and if they considered the inconvenience so great as to deprive the appellants of the right of contesting the facts, they should not have referred the matter to us. By sect. 7 of stat. 11 & 12 Vict. c. 31, the decision of the sessions upon the sufficiency and effect of the grounds of appeal must be final; and they will have no difficulty in drawing the line where it ought to be drawn. Probably they will, in some cases, think the traverse in the grounds of appeal too general to require the respondents to adduce any evidence.

his two children from the parish of Lambeth, in the Otter, in support of the order of sessions.-A general county of Surrey, to the parish of St. Pancras, in the traverse, that the statements contained in the said exa county of Middlesex, the court of quarter sessions minations are not true, is no ground of appeal, within confirmed the order, subject to the opinion of this sect. 81 of stat. 4 & 5 Will. 4, c. 76. It does not deny Court upon a case. The examinations upon which any specific fact stated in the examinations, nor the the order of removal was made, after setting out the inference to be drawn from all of them; all the facts marriage of the pauper, the names and ages of his may be untrue, and yet the settlement may have been children by such marriage, and his chargeability to gained. [Coleridge, J.-It must mean that the state and residence in the parish of Lambeth, proceeded to ments are substantially untrue.] If the appellants had set up a settlement in St. Pancras, in the following denied the facts separately, the respondents would be terms:-"Susannah Greenland saith as follows: Fre- entitled to the costs upon those grounds of appeal which derick Greenland, the first examinant, now here pre- were frivolous and vexatious, under sect. 83, which is sent, is my lawful son, by Edward Greenland, my late re-enacted in sect. 5 of stat. 11 & 12 Vict. c. 31; if such a husband, who died in the year 1818, and to whom I comprehensive traverse is allowed, those provisions will was lawfully married at the parish church of Blooms- be evaded. [He cited Reg. v. Whitley Upper, (11 Adol. bury, in the county of Middlesex, on the 15th May, & Ell. 90); Reg. v. Staple Fitzpaine, (2 Q. B. 488; 1818. In the year 1824, I hired of one Mr. Granby, a 6 Jur. 277); and Reg. v. Widdicombe-in-the-Moor, (9 carpenter, then of Kentish-town, in the county of Mid-Q. B. 894; 11 Jur. 227).] In Reg. v. St. Giles, Colches dlesex, for one whole year, at and for the yearly rental ter, (12 Jur. 727), the Court avoided deciding this ques of 281., a tenement, consisting of a separate and distinct tion. [Coleridge, J., referred to Reg. v. Middleton-indwelling-house or building, being à cottage, situated Teesdale, (10 Adol. & Ell. 688).] near the Castle Inn, in Kentish-town, in the parish of St. Pancras, in the county of Middlesex, and I so held, rented, occupied, and inhabited, and resided in and upon the said tenement during the period of one whole year together, and I actually paid the said yearly rent of 281. for the said tenement during my said occupation thereof; and during the period I so held, rented, and occupied the said tenement, my son, the said Frederick Greenland, was unemancipated, and resided with me, and formed part of my then family. Since quitting the said tenement I have not done any act to gain a parochial settlement."" There were several grounds of appeal, raising objections to the order and examinations; but the only grounds material to the present case were the following:-First, that the facts disclosed in the said examinations do not prove that Susannah Greenland, the mother of the said Frederick Greenland, ever gained a settlement in the said parish of St. Pancras. Secondly, that the statements contained in the said examinations are not true. On the hearing of the appeal, after several objections to the examinations, raised by the appellants, had been overruled, the respondents were called upon to prove the settlement set up in the examinations; whereupon the counsel for the respondents objected, that by the grounds of appeal the settlement in St. Pancras was not denied, nor the facts traversed, so as to make it necessary for the respondents to give any proof of the settlement; and after argument the court of quarter sessions decided the objec tion in favour of the respondents, and confirmed the order, subject, however, to the opinion of this Court upon the point. After the order had been so con firmed, it was suggested, that, in order to render the decision final in any event, it would be more satisfac tory to hear evidence of the settlement; and to this the counsel for the respondents consented, without waiving the objection to the grounds of appeal. Accordingly evidence of the settlement was then given, but the court of quarter sessions decided that the settlement was not proved; whereupon they ordered the said order of removal to be confirmed, subject to the opinion of this Court on a case to be granted to the appellants as to the sufficiency of the grounds of appeal. The question for the opinion of the Court is, whether, by the above grounds of appeal, the settlement set up in the examinations was denied, or the facts therein stated traversed, so as to call upon or make it necessary for the respondents to adduce evidence in support of such settlement at the hearing of the appeal; and if the Court should be of opinion, that by the grounds of appeal the settlement was sufficiently denied or traversed, then the order of removal, and the order of sessions confirming the same, are to be quashed; but if the Court should be of a contrary opinion, both orders were to stand confirmed.

WIGHTMAN, JI should regret if the strict rule of law justified the objection taken by the respondents. The ground of appeal in question does by a compre hensive sentence what might be done by several grounds of appeal. Reg. v. Middleton-in-Teesdale (10 Adol. & Ell. 688) supports this decision. The justices at sess sions will distinguish the cases in which, from the vagueness of the grounds of appeal with reference to the examinations, costs are due to the respondents.

ERLE, J. The more concisely the grounds of appeal can express the intention of the appellants to deny the facts necessary to constitute the settlement, the better. If there is, in the use of this form, a vexatious denial of several facts, the sessions will give the costs of proving them.Order of sessions quashed.

COURT OF COMMON PLEAS.
SITTINGS IN BANC AFTER HILARY TERM.

MAYHEW and Another (Assignees of B. Mayhew,
Bankrupt) v. HERRICK,

Trover-Partner-Sale by Sheriff-Conversion-Eri
dence under not guilty.

One Partner cannot maintain Trover against the Sheriff for a mere Sale of his Share of the Partnership Property under a Fi. Fa. issued against the other Partner for a separate Debt The Sheriff in such Case is in the same Position, so far as regards his Liability in Trover, as if the Sale had been by the Execution Partner; and upon a Plea of not guilty the Partnership is good Evidence.

Case by the assignees of a bankrupt. The first count

Lush, for the defendant, shewed cause against the plaintiffs' rule.-First, the question is, whether, if a sheriff seizes and sells all the goods of a partnership under a fi. fa. issued against one of two partners only, he is liable, at the suit of the other, for a moiety at common law; and it is submitted that he is not. In Burnell v. Hunt (5 Jur. 650) the nature of the sheriff's duty, upon a fi. fa. against one of two partners, was fully discussed. In such a case he may seize the whole, but he can only sell the share of the execution debtor; the vendee then becomes tenant in common with the remaining partner, and their respective rights can only be determined in equity. (Parker v. Pistor, 3 B. & P. 288; Chapman v. Koops, Ìd. 289; Waters v. Taylor, 2 Ves. & B. 301; Collyer on Partnership, 562). Here the partnership still continued at the time of the execution against Smee, and until the accounts had been taken it was impossible to say what Mayhew's share was; non constat that a farthing was due to him, much less a moiety of the partnership property. Garbett v. Veale (5 Q. B. 408) is in point, and was expressly decided on the ground that the partner's interest could only be in the surplus after payment of the partnership debts, and that surplus must depend upon a settlement of accounts, which the Court could not take without the consent of the parties. In the case of a fiat on the bankruptcy of one of two partners, the assignees take the share of that one only; but they may seize and sell the whole of the partnership property, and must account to the other partner for his share. (Smith v. Stokes, 1 East, 363; Co. Litt., s. 323; Farrar v. Beswick, 1 Mee. & W. 682; and cases cited in Archbold's Bankrupt Law, 455, 9th ed.) Secondly, trover is not maintainable, for there has been here no conversion. One tenant in common, or joint tenant, cannot maintain trover against his companion; (Smith v. Stokes, 1 East, 363; Co. Litt., s. 323); and the principle is, that the possession of one is the possession of both. (Holliday v. Camsell and White, i T. R. 658). Nothing short of an actual destruction of the chattel amounts to a conversion. Barnadiston v. Chapman (4 East, 121) is not an authority to the contrary, for in that case Lord King left it to the jury to say whether what had been done amounted to a destruction. The question, then, is, in what way is the defence suggested to be taken advantage of? The sheriff says, first, that he is not liable at all for the mere sale of the property, for he was bound to make it; and, secondly, he says that the bankrupt was not possessed, as alleged in the declaration, of a certain definite interest in the property sold. The plaintiffs ought to have declared as partners, as was done in Hunt v. Burnell, (5 Q. B. 411, note), and the defence arises upon that relationship. The plaintiffs are not joint tenants, for there is no right of survivorship; nor are they tenants in common, for each is not seised of the whole. If they are joint tenants, or tenants in

was in trover for the conversion by the defendant of goods, to wit, malt, hops, barrels, &c., the property of the bankrupt before the bankruptcy. The second count stated that the bankrupt and one Smee, before the bankruptcy, and at the time of the grievances mentioned, were lawfully possessed, as of their own property, of divers other goods and chattels, to wit, 100 quarters of malt, &c., of great value, to wit, &c., whereof a small share only, to wit, the one-hundreth undivided part, of right belonged to the said Smee, whereof the defendant, at the time of the grievances hereinafter mentioned, had notice; and before the committing of the said grievances, to wit, on the 17th July, 1847, a writ of fi. fa., directed to the officers of the Palace Court, at Westminster, was sued out by one Tiley against the goods and chattels of Smee, for a sum of 1007. theretofore, by the judgment of the said court, recovered by Tiley against Smee, and which said writ was delivered to the defendant, an officer of the said Palace Court, to be executed in due form of law; and the plaintiffs say that the defendant, before the said bankruptcy, under colour of the said writ, seized the said goods and chattels of the said Mayhew and Smee, and afterwards, although he well knew that the said Mayhew was so entitled to the said share of the said goods as aforesaid, wrongfully, and under colour of the said writ, wholly sold and disposed of the entirety of the said goods and chattels, for divers sums of money, to divers persons to the plaintiffs unknown, who then, by the procurement of the defendant, and by colour and force of the said sale, eloigned and carried them away, and disposed of them to their own use, whereby they became wholly lost to the said Mayhew and the plaintiffs, to the damage of the plaintiffs as such assignees &c. The defendant pleaded, first, to the whole declaration, not guilty; secondly, to the first count, that Mayhew was not possessed; and, thirdly, to the second count, that Mayhew and Smee were not possessed. Issue thereon. The cause was tried before Lord Denman, C. J., at Kingston, during the Spring Assizes for Surrey, 1848, and it appeared that the plaintiffs were assignees of Mayhew, a brewer in partnership with Smee, and that the defendant was an officer of the Palace Court, in which Tiley had sued Smee, in June, 1847, for a debt separately due from him. A cognovit having been given by Smee, and default made, Tiley signed judgment and issued execution. The fi. fa. was indorsed to levy 797. 2s. 6d., and was delivered to the defendant to execute, who went to the brewery and seized the property there, and sold it on the 27th July. Some of the property, consisting of barrels, belonged to Mayhew alone; the rest belonged to the partnership. After paying the rent claimed by the landlord of the premises, the defendant delivered the residue of the proceeds of the sale (about 307.) to Tiley. Mayhew having become bankrupt in August, 1847, the present action was brought by his as common, then the defence arises under not guilty. signees. The agreement of partnership, which was Bramwell and Willes, in support of the rule.-The put in evidence, did not refer to the barrels mentioned plaintiffs are at least entitled to increase the damages to in the first count, and they were proved to have be-757. upon the second count, and to retain their verdict longed to the bankrupt before the partnership, but to for 157. 15s. upon the first. The facts which occurred have been used in the partnership business, and the are set out in the second count, and those facts were jury found that their value was 157.15s. They also found proved; the defendant, therefore, cannot have the verthat the value of the partnership property seized and dict entered for him on that count; and the defence sold, exclusive of them, was 1507. A verdict was suggested does not arise upon the pleadings in any entered for the plaintiffs (it was not said on which shape. First, it is a fallacy to say that the plaintiffs are count) for 15%. 15s., and leave was reserved to them to to have their damages reduced because there may be a move to increase it by 757. Also the defendant con- possible contingent equitable interest in somebody else, tended that the barrels used in the partnership concern unascertained, and which this Court cannot ascertain, became partnership property, and leave was reserved to for it can only look at the legal interests of the parhim to move to set aside the verdict, and enter a non- ties; and the equitable doctrine of partnership does not suit. The plaintiffs accordingly obtained a rule to in- apply. Primâ facie, at law, each is entitled to a moiety; crease the damages by 757.; and the defendant obtained but, whatever was the share of the execution partner, a rule to enter a nonsuit, or for a new trial, on the that, and that only, the sheriff should have sold. ground of misdirection. (Jacky v. Butler, 2 Ld. Raym. 871; 1 Chitt. Archb.

(

Prac. 583). In Smith v. Stokes (1 East, 363) it is said, that a moiety of the partnership property may be sold under a fiat issued against one partner who becomes bankrupt; but nothing is said about the rights of the parties in equity; an inquiry there would be interminable. (Habershon v. Blurton, 1 De G. & S. 121). Secondly, the facts here amounted to a conversion, for which trover is maintainable against the sheriff. [Williams, J.-Do you say whether Stancliffe v. Hardwick (2 C. M. & R. 1) is law or not? Would a sale in this case by Smee have been a conversion?] Possibly a mere sale, without delivery, would not amount to a conversion by either Smee or the sheriff; but what was done here amounted to a destruction, within the authority of Barnadiston v. Chapman, (4 East, 121), for which either would have been liable in trover. But the sheriff is not in the position of the other partner. There is no foundation for saying, that what would amount to a conversion, if both partners sued, is not a conversion when one sues. If the sheriff relied upon a justification, then he ought to have specially pleaded it. (Samuel v. Duke, 4 Mee. & W. 622). The proposition contended for by the defendant is, that a sheriff, under an execution against a person having the least possible interest in a chattel, may sell the whole. Maule, J.-The defendant says the sheriff may sell the whole, but can give no title to it.] He says, that such a sale does not amount to a conversion, as against the other parties interested in the chattel; but what answer is it to tell them, when the chattel is sold and delivered to another, that their interests still remain? They cannot exercise their common-law right to take the chattel, because they cannot find it. In Co. Litt., s. 323, it is by no means said that there may not be a taking by one tenant in common, which would amount to a conversion as against the other. There seems no reason for holding, that what would amount to a conversion, if done by a stranger to the whole chattel, is not a conversion when done by one partner, with regard to the interest of his companion in it. Fennings v. Lord Grenville (1 Taunt. 241) decides, that a disposal of the property, in contravention of the objects of the partnership, is a conversion. Barton v. Williams (5 B. & A. 395) is in favour of the plaintiffs. The reason given for the decision in Garbett v. Veale is surplusage, for the action was not maintainable in any case, for money had and received by the execution creditor, against the assignees. That case is therefore no authority against the plaintiffs. [Coltman, J.-Do you concede, that there is no distinction between the case of a sale by the sheriff and by a tenant in common?] Yes, except as to the point raised upon the pleadings. [Williams, J.-What do you say is the point raised here?] That the sheriff cannot defend himself under not guilty, nor under not possessed, but that he should have specially pleaded his justification, as a servant must have pleaded, if he had joined in a sale of the common property with the other partner. [Graves v. Sawyer (T. Raym. 15) and Higgins v. Thomas (8 Q. B. 908) were also referred to.]

Bramwell and Willes then shewed cause against the defendant's rule.

Lush was heard in support of it, and cited Peacock v. Peacock (2 Camp. 45) and Coll. on Partn. 83, 105; but PER CURIAM. We are of opinion that there was no evidence to go to the jury upon which they could have found that these barrels became partnership property. There is a vast distinction between those things quæ ipso usu consumuntur, as hops and malt, and barrels, which may be used for the purposes of the firm, and afterwards returned. This rule, therefore, must be discharged.

tain trover against the sheriff for selling the partnership goods, ex concessis, his case does not differ from that of a joint tenant or tenant in common, irrespective of the point which is suggested on the pleadings. The authorities, I think, are too strong to be got over, which decide, that a mere sale by one joint tenant or tenant in common will not amount to a wrongful con version; but it is not necessary to decide whether a sale, under some circumstances, would not amount to such a conversion. A case might arise in which a disposition of the subject of the tenancy-not an actual destruction of it-might be a conversion; as where it has been so dealt with, that the co-tenant has no remedy against the parties in possession, and cannot regain his property. But the question on the first count is, whether the defence of the joint tenancy is admissible under a plea of not guilty; and I think, notwithstanding the case of Stancliffe v. Hardwick, that it is— that is, that a wrongful conversion is put in issue by that plea. The plaintiffs, therefore, are not entitled to retain a verdict on the first count for more than 157. 15s. I also think that they are entitled to a verdict on the second count; and there appears to be no other measure of damages than half the value of the whole partnership property. We must look to the legal rights of the parties; and, in the absence of all proof to the contrary, the natural presumption is, that each partner was entitled to a moiety.

I

MAULE, J.-As regards the question, whether an action of trover can be maintained by one tenant in common against his co-tenant, for a sale of their com mon property, notwithstanding the authority of Co. Lit., the inclination of my opinion is that it can. I think that dictum and the other authorities may be understood in this way-that there are dispositions of the common property which, if made by a stranger, would amount to a conversion, but which do not if made by a tenant in common. But it by no means, think, follows, that therefore every disposition by a tenant in common, not amounting to a total destruction of the common property, is lawful; at least, that it is not in the election of his co-tenant to treat it as unlawful, and to maintain an action as for a conversion. The plaintiffs in the present case are, at all events, entitled to retain a verdict on the count in trover for 15l. 15s., such being the value of the property sold which did not belong to the partnership. Then as to the second count, I think the facts alleged in it were proved in evidence: the plaintiffs, therefore, are also entitled to a verdict on that count. As to the amount of damages, that is very clear. It is to be presumed, till the contrary is shewn, that each partner was entitled to a moiety of the partnership property. The amount of interest, therefore, that the plaintiffs have lost must be taken to be 751., the value of one moiety, as there is nothing to lead to the conclusion that there was any partnership account outstanding, or that the plaintiffs are entitled to less. The verdict, therefore, upon that count must be for 757.

CRESSWELL, J.-I am of the same opinion. With reference to the question, as applicable to partnership property, whether an action of trover is maintainable by one tenant in common against another, by reason of the latter having sold their common property, it is admitted in the present case, that the sheriff is in the same condition as a tenant in common. The cases shew that one tenant in common may maintain the action against his co-tenant, if the common property has been destroyed, or there has been such a sale as would change the property, as in market overt. It would seem to follow that the action may also be maintained, if it can be proved to the satisfaction of a jury, that the co-tenant COLTMAN, J.-It is clear that the plaintiffs are enti- has so disposed of the common property as to deprive tled to have a verdict on the first count for 157, 15s. As the other of all opportunity of recovering his share, or regards the question, whether the plaintiffs can main-compensation for it. It would seem to follow that such

a disposition might be equivalent to a destruction. In Barnadiston v. Chapman, (cited in Heath v. Hubbard, 4 East, 121), where it appeared that one tenant in common of a ship had forcibly taken it out of the possession of his companion, and secreted it from him, so that he knew not where it was carried, and changed the name of it, and it afterwards got into the hands of a third person, who sent it on a foreign voyage, where it was lost, Lord King, C.J., left it to the jury, whether, under the circumstances, the destruction was not by the defendant's (the tenant in common) means; and the jury finding in the affirmative, the Court, on motion for a new trial, approving of the Chief Justice's direction, refused to set aside the verdict. As a sale in market overt, which changes the property entirely, would amount to a destruction of the thing in common, so a sale not in market overt might have the same effect, under some circumstances; but, in the present case, I do not think the sale had that effect; and the plaintiffs are not entitled to a verdict upon the first count for more than 157. 15s. As regards the question, whether, under a plea of not guilty, facts, to shew that the conversion was not wrongful, were admissible, I think that they were, notwithstanding the decision in Stancliffe v. Hardwick. Then as to the second count, I think it was maintained by the evidence; and I agree, that, in the absence of all proof to the contrary, it is to be presumed that each partner was equally interested in the partnership property, and that the correct measure of damages is the value of one moiety, viz. 75l., to which amount the verdict on the second count must be increased.

The original Debt, together with these Costs, amounted to more than 201., and the Plaintiff, in Order to obtain a Ca. Sa. against the Defendant, brought an Action for that Sum upon the previous Judgment. The Defendant pleaded falsely, Nul tiel Record:-Held, that the Defendant could not answer a Claim for the Costs of the latter Action, by establishing that he had been liable to be sued in the County Court for the original Debt, and that it was raised to 201. only by his having suffered Judgment to go by Default, whereby he became liable to the Costs of the first Action. The Misconduct in pleading a false Plea was not cured by the Facts relied on.

This was an application, under the 23 Geo. 2, c. 23, s. 19, for the costs of an action upon a judgment. It appeared, by the affidavit of the plaintiff's attorney, that the plaintiff had sued the defendant in the superior court for a debt of 157. 3s. 6d., and that the defendant had suffered judgment to go by default for 100%. debt and 57. 12s. 6d. costs; that the defendant was a clerk in a public office; that he had assigned over his effects, and was living in furnished lodgings, and that a writ of fi. fa. upon the judgment would be unproductive; that the plaintiff had sued upon the judgment, in order that he might have execution against the defendant's person for the amount of the above debt and costs; and that the defendant had pleaded a false plea of nul tiel record.

Needham (Nov. 21) having obtained a rule calling on the defendant to shew cause why the plaintiff should not have the costs of the action,

Henry Mills (Nov. 26) shewed cause. The defendWILLIAMS, J.-I am of the same opinion. The plain-ant swears that the original debt was contracted within tiffs' rule must be made absolute on the second count, the jurisdiction of the Hammersmith County Court of but not upon the first; and the defendant's rule must Middlesex; that he was liable to be sued, and ought to be discharged. I still think, notwithstanding the doubts have been sued, there; that the debt was on simple expressed in Barton v. Williams, that the true rule is, contract for goods sold and delivered; and that no that a joint tenant, or tenant in common, cannot main- question of law could have arisen if the case had been tain trover against his companion for the mere unautho- there tried. The plaintiff, if entitled at all to the costs rised sale of a chattel their common property. It then of the first action, has obtained them entirely through becomes necessary for us, as it seems to me, to decide a the forbearance of the defendant in not contesting that question to which for some reason or other the counsel action, but suffering judgment to go by default. The on either side did not particularly address themselves, 9 & 10 Vict. c. 95, s. 129, enacts, that if any action viz, whether this defence was admissible under the plea shall be commenced in the superior courts for a cause of not guilty. As to that, I think that the case of for which a plaint might have been entered in the Stancliffe v. Hardwick is not to be sustained. Doubts county court, and a verdict shall be found for the plainwere thrown upon that decision in the cases of Whitmore tiff for a sum less than 20%., if the action is on contract, v. Green (13 Mee. & W. 104) and Kynaston v. Crouch the plaintiff shall have judgment to recover such sum (14 Mee. & W.266); and it must now be considered, that only, and no costs, unless the judge who shall try the under the plea of not guilty the defendant can shew cause shall certify that the action was fit to be brought that the conversion was not wrongful. The defendant, in such superior court." Without the costs of the first therefore, in the present case, sets up a true defence. action, the plaintiff would have been unable to raise With reference to the second count, I can only say his debt above 201., and to get execution against the whether it was sustained, not whether it is bad or good. defendant's person. In giving the plaintiff the costs he I think the facts alleged in it were proved, and that the now seeks, the Court will sanction the proceedings in correct measure of damages is the value of a moiety of the first action. The defendant might now enter a the partnership property; that is, 75%., for which amount suggestion on the roll to set aside the first judgment, so the plaintiffs are entitled to a verdict on that count.- far as regards the costs, (Newton v. Bankes, 17 Law Plaintiffs' rule to increase the damages by 751. absolute; Journ., N. S., Q. B., 137), and the plaintiff is not defendant's rule to enter a nonsuit discharged. The ver- entitled to retain them. [Wise, for the plaintiff.dict to be entered for 15l. 15s. on the first, and for 751. on This Court has expressly decided, that the 9 & 10 the second, count. Vict. c. 95, s. 129, does not apply to deprive the plaintiff of costs in cases where the defendant has suffered judgment to go by default. (Reed v. Shrubsole, 17 Law Journ., N. S., C. P., 225).] That was an action of tort, and Cresswell, J., differed from the rest of the Court; but the statute may not equally apply when judgment goes by default in an action of contract. A man can hardly be excused for over-estimating his debt, but he may be excused for over-estimating the amount of damages to which he is entitled for a tort. Unless the 129th section applies to judgments by default, the Court will be driven to make a distinction favourable to defendants who put plaintiffs to the expense of a trial, and unfavourable to those who

MICHAELMAS TERM.
SLATER V. MACKAY.-Nov. 26.
Costs of Action in the County Court, where the Defendant
suffers Judgment to go by Default-9 & 10 Vict. c. 95,
8. 129-Costs of Action on a Judgment, where the De-
fendant pleads a false Plea, Nul tiel Record-23
Geo. 2, c. 23, s. 19.

The Defendant, sued in the superior Court for a Debt
under 201., suffered Judgment to go by Default:-
Held, that the Plaintiff was entitled to the Costs of the
Action, notwithstanding the 9 & 10 Vict. c. 95, s. 129.