DIES NON.

See APPEARANCE, 3. DISCONTINUE (RULE TO). See JUDGMENT (AS IN CASE OF A NONSUIT), 4.

STAY OF PROceedings, 1.

DISTRESS. See REPLICATION, 8.

DISTRINGAS.

1. In the affidavit to obtain a distringas, it is not sufficient to state that the defendant has not appeared "according to the exigency of the said writ;" it ought to state generally that he has not appeared. Drage v. Bird, 617

2. Where calls had been made at the residence of the defendant, and answers given; on one occasion, that he was at home and ill, and could not be seen; and on another, that he was at home and could not be seen; and it was sworn that it was believed that the defendant was bedridden, and had been confined to his house for many years; the Court granted a distringas to compel an appearance, without the usual statement in the affidavit, of a belief that the defendant was keeping out of the way to avoid service. Wilkins v. Jones,

747

3. The Court granted a distringas for the purpose of proceeding to outlawry on an affidavit which disclosed attempts to serve the defendant at his place of business, and the leaving copy of the process with a clerk, and also that the defendant's place of residence could not be discovered. Rock v. Adam and Another,

817

4. In an affidavit for a distringas to proceed to outlawry, it should appear that a copy of the writ of summons has been left at some place, where it is probable that being so left, it may come to the defendant's knowledge. Vernon v. Pouncett, 744

1. The Court dispensed with the attendance of the plaintiff in error to crave oyer of the record of an indictment for bigamy, for the purpose of assigning errors: where it appeared that he was resident in Australia, where he had been for the last thirty years; that he was sixty-six years of age, and subject to paralytic attacks; and that he could not make the journey to this country without injury to his health, and without considerable pecuniary loss.

Where the prosecutor and his attorney were both dead, the Court directed service of the rule to join in error to be made, by sticking it up in the Crown Office, and serving a copy on the solicitor to the Treasury. Murray v. The Queen,

100

2. Where issue is joined on error in fact, the defendant is entitled to costs III 2

of the day for not proceeding to trial, as in other cases. Greville v. Sparding and Another, 336

ESTOPPEL.

A declaration against a witness for not attending a trial pursuant to a subpoena, alleged that the plaintiff had a good cause of action in that suit, and that the testimony of the defendant was material evidence for the plaintiff. Pleas; first, not guilty; secondly, that plaintiff could have proceeded to trial without the testimony of the defendant. Evidence was tendered on the part of the defendant at the trial, for the purpose of shewing that the plaintiff had not a cause of action in the original suit: Held, that as the defendant had not traversed the allegations that the plaintiff had a good cause of action, and that the evidence was material, those allegations were admitted; and that he was consequently estopped from giving the evidence tendered. Needham v. Fraser,

EVIDENCE (MATERIAL).
See MATERIAL EVIDENCE.

EXCISE.

See PLEA, 17.

EXECUTION.

See AWARD.

DECLARATION, 5.
FEME COVERT, 2.
SHERIFF, 1.

EXECUTOR.

See PLEA, 14, 16.

190

A declaration for use and occupation against executors, charging them in respect of certain premises held by them as executors under a demise to their testator, but not alleging any occupation by them is good, under 11 Geo. 2, c. 19, as sufficiently charg

EXPENSES OF SHERIFF.
See SHERIFF (EXPENSES OF).

FALSE JUDGMENT.

On a return to a writ of false judgment of the proceedings in a Court baron to recover a debt, the Court was stated to have been held before W. K., Esq., steward of the said Court, and W. U. and W. M. and others, free suitors of the said Court: Held, that it was not necessary for the proceedings to shew that the steward was also steward of the manor: Held also, that the above was the correct style of the Court, and that it was not a necessary presumption that the steward acted judicially in the proceedings: Held, that it was not necessary to state the names of more than two of the suitors. Brown v. Gill,

FEIGNED ISSUE.

823

Where a feigned issue is directed under the Interpleader Act, to try the property in certain goods, it may still be framed in the form of a pretended wager, notwithstanding the provisions of the 8 & 9 Vict. c. 109, ss. 18 and 19, although a new form of issue is given by the schedule to the latter section. Luard and Another v. Butcher and Others, 815

FEME COVERT.

1. It is no objection to the issuing of a commission to take the acknowledgment of a feme covert resident beyond seas, under stat. 3 & 4 Wm, 4, c. 74, s. 83, that her Christian name is unknown; but when the commission is returned, the Court will require strict proof of her identity. In re the Wife of George Atherton, 26

2. Where a married woman is taken in execution on a judgment obtained in an action commenced against her when sole, the Court will

HABEAS CORPUS.

not discharge her out of custody; although it appear that she has no separate property. Banin v. Margaret 667 Jones,

FIERI FACIAS.

A ca. sa. was issued against both defendants on the same day that final judgment was signed; and one of the defendants was taken under it, and subsequently discharged under the Insolvent Act. The plaintiff instructed the sheriff not to execute the writ against the other defendant, and the writ remained in the sheriff's hands unreturned: Held, that a writ of fi. fa. which was issued against the goods of the other defendant more than a year from the date of the judgment, was not irregular, for want of the writ of ca. sa. being previously returned, or of a scire facias being issued to revive the judgment. Franklin v.Hodgkinson and Beale, 554

FORCIBLE ENTRY.

See VI ET ARMIS.

FRACTION OF A DAY.

See DAY, (FRAction of).

GAMING.

See LOTTERY.

GENERAL ISSUE. See LOTTERY. PLEA, 13.

GUARANTEE. See VARIANCE, 1, 2.

HABEAS CORPUS.

Held, that it is not necessary that a bankrupt should make and sign the declaration required by the 8 & 9 Vict. c. 48, previous to each examination. It is sufficient if he do so previous to the first examination. In re Bull, 763

HIGHWAY ACT.

See TAXATION, 2.

HOLDER (OF BILL). See PLEA, 11. HUSBANDRY, (RULE OF). See REPLICATion, 6.

ILLEGALITY.

See WARRANT OF ATTORNEY, 3.

INCOME TAX ACT. See PLEA, 3.

INDORSEMENT (ON PROCESS). See IRREGULARITY.

INFANT.

See ARBITRATION, 5. APPEARANCE, 2. PROCHEIN AMY.

INQUISITION.

A commission tested 21st of February, and returnable 15th of April, 1843, authorized the commissioners to inquire whether D. is now indebted to the Crown in any and what sums. The inquisition thereon, dated 1st of March, 1843, found, that D. was, on the day of taking the inquisition, indebted to the Queen in a certain sum, for customs duty on silk imported by him between the 8th and 14th of February, 1841. A scire facias issued on this inquisition, tested the 30th of

3. Issue was joined on the 3rd of June, 1844, and notice of trial given for the adjourned sittings after Trinity Term, 1844, which was afterwards postponed by consent to the sittings after Michaelmas Term in the same year. The record was at those sittings withdrawn, on the ground of the absence of some material witnesses on the part of the plaintiff. In Trinity Term, 1845, the plaintiff obtained commissions to examine his witnesses abroad, and in July in the same year, the defendants also obtained a Judge's order for a commission to issue to examine witnesses on their behalf, which order contained the usual proviso, that the trial of the cause should not be proceeded with till the return of the commission. The defendants did not issue any commission: Held, that they had waived any right they might have had to move for judgment as in case of a nonsuit. Bordier v. Barnett and Others, 370

4. A rule to discontinue on payment of costs is no stay of proceedings; therefore where a plaintiff served a rule to discontinue, with an appointment to tax costs, and on the following day the defendant obtained a rule absolute for judgment as in case of a

nonsuit: Held, that the judgment was regular. Beeton v. Jupp, 474

JUDGMENT NUNC PRO TUNC.

Where there were issues of fact and of law, and after verdict for the plaintiff on the former, and a rule for a new

trial, which was discharged, the plaintiff, in the same Term in which the rule was discharged, set down the demurrer in the special paper, but died before it came on for argument; judgment having been subsequently given for him on the demurrer, the Court made absolute a rule to enter up

judgment as of the Term in which the demurrer was set down for argument. Miles v. Bough, 105

JUDICIAL NOTICE.

See REPLICATION, 7.

JURAT.

See AFFIDAVIT, 2.

JURISDICTION.

See ORDER OF REMOVAL, 1. ORDER OF SESSIONS, 1.

LACHES.

See ATTORNEY'S UNDERTAKING, 2. 1 Notice of trial having been given for the first sittings in Term, the 16th of April, the defendant obtained a rule for a special jury on the 9th, which he served on the plaintiff on the 13th. The Master's office was closed on the 10th for the holidays, and remained so till the 15th, on which day the defendants served another copy of the rule on the plaintiff, together with an appointment to nominate the jury on the 18th. Held that the defendants had been guilty of no laches; and the Court therefore refused to discharge the rule for a special jury. Gurney v. Gurney and Chapman, 734