demurred to the replication. In this case also, we May 30.-J. D. Fitzgerald, Q.C., and F. Smith consider there ought to be judgment for the crown. for the plaintiff, contended that the count was suffiAs to the form of the replication, it is manifest cient. Bass v.Clive, (4 Camp. 78, S.C. 4 M.& S. 13.) that is of no moment, if the plea is bad. It is to The declaration here is at most, ungrammatical, be observed this plea alleges matter on which issue and that is not sufficient to vitiate it. (O'Connor v. may be taken; and I apprehend the Crown is en- Fiely, argued in this court on the 13th of June, titled to pray final judgment, as it may be so en- 1845.) In that case the declaration was by indorsees titled if issue were joined. Medina v. Stonton against acceptors, and the promise was laid in these (Lord Raymond, 594); Biss v. Harcourt, (Carth. words-" and the defendants promised the plaintiffs 137.) Judgment was there given for the defend-(in the plural) to pay him." The court overruled ant, because the plea was good, in this case it the demurrer. There is no repugnance here; it is is bad. In Bonner v. Hall, (Lord Raymond, consistent with this averment that the pleader fol338,) in the replication judgment was demand-lowed the words of the instrument, and that Hugh ed for the plaintiff, and damages; it was admitted Ferguson was the sole member of the firm of Ferthe plea was ill, and being so, the replication guson & Co. The case of Ball v. Gordon, (9 M. was attacked on the ground of discontinuance, and & W. 345,) has no application to this case; besides the case of Biss v. Harcourt relied on; but Lord it was overruled in Tigar v. Gordon, (9 M. & W. Holt said, "This case differs from Biss v. Har- 346.)* court, for there the plea was good, and then when the plaintiff replied new matter, he should have made his conclusion accordingly; but where the plaintiff traverses the plea in his replication, and offers an issue, he may pray judgment de debito et de damnis, because if it be tried, peremptory judgment ought to be given, but in this case the first fault is with the defendant, for the plea is ill." Every word of this judgment is applicable to the present case; the first fault is with the defendant, as the plea is bad. On all points of this case, therefore, it is our opinion, that by the authorities all doubt is removed, and the traverser must plead forthwith. EXCHEQUER OF PLEAS. REILLY v. JESSOP-May 26 and $0. Pleading-Bill of Exchange-Indorsement by firm. Declaration by the indorsee of a bill of exchange against the acceptor. The first count averred "for that whereas Hugh F., carrying on business under the name, style, and firm of F. & Co., made HIS bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay the DRAWERS, or THEIR order, £- two months after the date thereof; and then proceeded to aver that the said H. F. then and there indorsed the same to the plaintiff Held sufficient on special demurrer. ASSUMPSIT. The first count of the declaration was as follows: "For that whereas heretofore to wit, on &c., at, &c., Hugh Ferguson, carrying on business under the name, style, and firm of Ferguson & Co., made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay the drawers, or their order, £two months after date thereof," &c. The averment of the indorsement to plaintiff was as follows: "And the said Hugh Ferguson then and there indorsed the same to the plaintiff," &c. Special demurrer to this count on the ground of its being repugnant and insensible, and disclosing on the face of it no sufficient cause of action. Rollestone for the demurrer. The court having observed that there was no junior counsel retained on behalf of the plaintiff, declined to hear the case argued. Rollestone contra.-Bass v. Clive does not apply. (Pigot, C.B.-The question, there, did not turn upon the pleadings. Pennefather, B.-On the supposition that Hugh Ferguson was the sole meniber of the firm of Ferguson & Co., there is no inconsistency, for he might have drawn the bill as alleged, and made it payable to the firm, in which view the use of the plural would be correct.) But even on that supposition the declaration is insufficient; for an instrument by one member of a firm passes no property, unless made in the name of the firm, of which there is no averment. PIGOT, C.B.-It is a rule of pleading, that ambiguous expressions must be taken most strongly against the pleader; but there is another rule equally well established, that if the ambiguity can be explained away by reasonable intendment, the Court will adopt that intendment. My brother, Pennefather, has suggested a view which removes the apparent inconsistency. Judgment for Plaintiff. ASSUMPSIT. This was an action brought by the indorsee of a bill of exchange against the indorser. The averment of indorsement was as follows: "And the said A. B. then and there indorsed the same to the defendant, and the said defendant indorsed the same to the plaintiff." Demurrer-that there was no venue, or time alleged when and where the defendant indorsed the bill to the plaintiff, and also that the said averment deviated from the precedent and forms prescribed by the judges, Curtis for the demurrer.-There is no venue laid. (Pennefather, B.-If there is a venue in the margin it suffices.) Waiving that ground of demurrer, the declaration is bad, as not laying any time. This is a material traversable averment, and must be laid with day, month, and year. R. v. Holland, (5 T. R. 607); Comyn's digest pleader, Before Pigot, C.B.. and Fennefather, B. c. 19; Ring v. Roxborough, (2 Cr. & J. 418); Bow-[(Cro. Car. 202) shows very strongly the stringency dell v. Parsons, (10 East. 359.) Lawson with Harris in support of the declaration. We do not dispute the general proposition contended for on the other side; but there is a time sufficiently alleged here. The word "there" in the averment that drawer indorsed the bill to defendant, may be carried on so as to overrule the aver ment objected to. The two averments are coupled with "and"—the nec non of the old pleaders. (Pigot C. B.-How do you distinguish this case from that of Potter v. Ryan? (Smythe 22) This case turns on the grammatical construction of the sentence. Counsel also referred to (Comyn's digest pleader, c. 19); Denison v. Richardson, (14 East. 291); Skinner v. Gunton, (1 Saund. 229 a); Harden v. Magenis, (6 Ir. L. Rep. 345.) As to the second ground of demurrer, there is no form prescribed by the judges for indorsee against indorser. (Pennefather, B.—We do not go so much on the ground of its deviating from the judge's forms, as of its violating the rules of pleading.) Cur. adv. vult. PIGOT, C. B. now delivered the judgment of the Court. We are reluctantly obliged to give judgment for the defendant in this case. The plaintiff derives title as indorsee of a bill of exchange, and the averment in the declaration is, " And the said A. B. then and there indorsed the same to the defendant, and the said defendant indorsed the same to the plaintiff." In the latter averment, neither time or place are laid. No allegation of place is necessary, but this being a material traversable fact, must be laid with certainty of time. It is too late now to question a rule, which has prevailed so long, and has been recognised in all the authorities from Cro. Jac. and Cro. Car. to the most recently reported cases. So stringent were the rules, as to time and place, that the legislature had to interfere, and the statute of Jeofails became necessary to relax them. By the statute of Anne the strict rule as to place was in part abrogated, and as a further modification of these rules, the "then and there" were let into the averments of the pleader. Recent decisions have sanctioned the omission of "place," because of the venue in the margin, but no similar indulgence has been extended to the omission of time; on the contrary, the very recent cases of Ring v. Roxborough, and Bowdell v. Parsons, referred to in argument, shew the disinclination of the courts to deviate from this rule. But it is said that we are at liberty to continue the "then and there" in the preceding averment, and incorporate them with the allegation complained of; and to sustain that view counsel has referred us to a case in Comyn's digest pleader, c. 19, p. 47. That was a case of trespass, quare clausum fregit, and upon looking at it, it seems impossible to apply that construction here. In trespass all the statements are coupled with the continuando, and are thereby referred to the same point of time; and that was the decision of Webb v. Turner, (2 Strange, 1095.) The judgment in that case indicates the principle of that class of authorities. The different averments in that case cannot be severed, as they must necessarily be in the present. The decision in Wilson v. Chambers | of the rule. That case was in Trover, and the in that case, and the judgment, no two cases can VANCE AND ANOTHER, EXECUTORS OF Scire Facias by the Executors of the Cognisee, The Scire facias.—On a judgment in debt by the Executors of the Connsee against the Conusor, the scire facias followed the ordinary form. The statement objected to being as follows: "And the said plaintiffs, after the death of the said conusee, duly proved said will in the Court of Prerogative in Ireland, and ob tained probate thereof, yet execution of the said judgment for the debt and damages aforesaid as yet remains to be done, as from the said Andrew and John, executors as aforesaid we have received infor mation. And we being willing that what is right and just in our court should be done, and a due execution, command you, as we formerly commanded you, that by honest and lawful men of your bailwick, you make known to the said defendant, that they may be before our Barons of the Exchequer at, &c., on &c., to shew if she have or know anything to say for herself wherefore the said Andrew and John ought not have execution against her for the debt and damages aforesaid, according to the form of the aforesaid recovery, &c.," concluding with profert of the Letters Testamentary. Special demurrer, on the ground that the defendant was called upon to shew cause why the plaintiffs should not have execution of the said debt and damages in their own right without naming them as executors. Butt, Q.C.with Mills, for demurrer-The objec tion on which we rely is that the scire facias does not contain any proper averment to show that the plaintiffs bring the writ in their representative capacity. The scire facias must be construed as a declaration, Malcomson v. Gregory, (1 H. B. 15.) Laverty v. Duffin, (Al.& Na. 29.) In a declaration by executors the omission of "as" is fatal, Henshall v. Roberts, (5 East. 150.) An. (1 Dow. P.C. 97. and notes,) Exors. of Frevor v. White, (1 Dow. N.S. 586). In debt on judgment by the executor of connusee, the executor must show that he sues in his representative capacity, the judgment being a duty which accrued in the testator's life-time. Counsel also referred to (Ferguson's forms, 352.) Shegog, contra-One case only need be referred to for raising and paying the portions not having aras maintaining the scire facias, Hanyngton v. Cair-rived, and for H. Corr contended that no sale subject nes, (5 Ir. L. Rep. 333,) where precisely the same to an incumbrance could be made consistently with objections were taken and overruled. (Pennefather, the policy of the 3 & 4 Vic. c. 105, s. 22. B. That case appears to have been rightly decided, the plaintiffs could not sustain the scire facias, except as executors, and in making profert they established their title.) Butt, in reply. It has been held not to be sufficient for a plaintiff to term himself executor, it must appear that he sues as executor, McSweeny v. Longfield, (2 H. B. 194.) Walter Burke for defendant, Maria Corr; Burroughs for Lord Lorton. F. Walshe for plaintiff, submitted to redeem them. LORD CHANCELLOR. The plaintiff has admitted he can have no relief against the younger children. I must dismiss the bill against them. The next question is, can the estate be sold subject to this charge upon it? I have no difficulty, in point of principle, in selling the estate subject to this charge. We all know that it is the every-day practice out of Court, to buy estates subject to incumbrances; why should they not be so sold, under the orders of the Court? As a matter of prudence, a sale of this sort may be questionable, but is not impracticable. The plaintiff is not entitled to redeem the PENNEFATHER, B.*—A scire facias is only to be regarded as a declaration in a qualified sense the object of it is to bring a third party into privity with the record of the judgment. The form here pursued has had the sanction of half a century, and it would be most injurious to the cause of justice to adopt the strict analogy of declarations in writs of scire facias. The demurrer must therefore be over-charge in favour of the children, he must therefore ruled. COURT OF CHANCERY. KIERAN v. CORR.-October, 21. Practice-3 & 4 Vic. c. 105-Sale subject to incumbrances. In a judgment creditor's suit under 3 & 4 Vic. c. 105, a sale may be decreed, subject to incumbrances, which plaintiff is not entitled to redeem. sell the lands comprised in the settlement of 1797, subject to that incumbrance. ROLLS COURT. IN THE MATTER of the COMMISSIONERS OF WIDE The bill in this cause was filed to raise the amount An acknowledgment by the Mortgagor, in writing, This case came before the court on objections to the Henry Corr. The defendant, Henry Corr, by his answer, and at the bar insisted on the benefit of the saving in favour of creditors and purchasers, contained in the 3 & 4 Vic. c. 105, s. 22. The same objection to the bill was also taken by the children entitled to the charge of £1000. Christian, Q.C. and F.W.Walshe for the plaintiff. Kirwan v. Portarlington, (8 I. E. R. 593,) does not apply, as there was there no offer to redeem. Even if not entitled to redeem, Carlon v. Farlar, (8 Beav. 525,) decides that the defendant's interest may be sold, subject to incumbrances. Neate v. Marlborough, (3 M. & C. 407,) Crofts v. Poe, (1 Jones, 5.0.) Hughes, Q. C. for the defendants, the children of Henry Corr, objected to being redeemed, the time Inte ture of the 1st of Feb. 1815. Robert Creed mort- but not signed by him, which was as follows: "On sister Alicia the sum of £15, being the half year's 1827." Alicia Creed died on the 8th of June, 1829, having devised the mortgage to the petitioner, ElizaThe Commissioners of Wide Street in Nov. 1846. beth Creed, save £100 bequeathed to the mortgagor. being desirous to purchase these premises, empanthe 3 Geo. 4. c. 85, who found the value of the pre nelled a jury to ascertain their value, as directed by mises as comprised in the Indenture of 1st of Feb. and that the claimants for 1815, to amount to £same were the petitioner in respect of the said mortThe mortgagor by his gage, and the mortgagor. discharge said he had never made any payment on foot of the mortgage for principal, or interest since the death of Alicia Creed, and that all persons were Feb. or March, 1826, or for two years previous to barred by the statute of Limitations from recovering said mortgage, and that no acknowledgment in writing of the right to said mortgage was given by him, or his agent to any person entitled to receive said mortgage, and to give a receipt for the same as agent of such person within 20 years next before the 1st day of Jan. 1847. The Master, by his report, dated the 1st day of January, 1848, found that Elizabeth Creed was entitled, on foot of the mortgage, to the sum of £461 for principal and interest, from the 1st of Feb. 1827. To this report the mortgagor objected, on the grounds, that no sufficient evidence was laid before the Master to authorize him to report that the interest on the mortgage debt was paid up to and for the 1st day of Feb. 1827, and that the right of Elizabeth Creed to recover the claim on said mortgagee was barred by the 40th sec. of the 3 & 4 W. 4. c. 27. Chatterton, for Elizabeth Creed, the petitioner.— The objection to the Master's report is, That there was no acknowledgment in writing as required by the 40th sec. of the 3 & 4 W. 4, c. 27. The question is, whether a payment, proved by a document in the handwriting of the debtor, but not signed by him, sufficient to take the case out of that statute. Supposing Willis v. Newham to be law, the question arises, whether the language used in 9 Geo. 4, is similar to the words of the statute of Limitations. I think the distinction taken is well grounded, that the clauses in the 40th sec. are distinct and separate, and that there are no grounds whatsoever to graft one upon the other. An acknowledgment of the right must be in writing, signed by the party to whom the same is payable, or his agent. But with respect to the fact of payment, I must consider the evidence with regard to the rules of common law, and therefore overrule these objections, with costs. EQUITY EXCHEQUER.-TRINITY TERM COCHRANE v. FITZPATRICK.-June 20. Practice-Receiver-Chancery jurisdiction. If a receiver be appointed in a plenary suit in Chancery, the court of Exchequer will restrain a receiver, appointed in a petition matter in the latter court, from interfering further with the land over which he was appointed, till the Chancery suit be concluded. Otway moved that the receiver appointed in the petition matter be discharged. A prior creditor having filed a bill in Chancery, the Master of the Rolls directed a receiver to be appointed in that court, when the receiver in this was discharged. is sufficient to take the case out of the statute of Limitations. There are two distinct modes of taking the case out of the 40th sec. each complete in itself, and not to be governed by the other. The first is, "Unless, in the mean time, some part of the principal money, or some interest thereon shall have been paid." The second, "Or some acknowledgment of the right thereto shall have been given in writing, signed by the person to whom the same shall be payable, or his agent to the person entitled, or his agent." The cases of Bailey v. Ashton, (12 Ad. & Pennefather, J. contra. The court of Chancery Ell. 493,) Maghee v. O'Neil, (7 M. & W. 531,) and has no jurisdiction to remove the receiver here. Eastwood v. Saville, (9 M. & W. 615,) decided upon If good cause for his retention can be shewn, the Lord Tenterden's Act, and which were relied upon order in Chancery must fail. Bruen v. Brown, (6 in the office, cannot be applied to the construction Ir. Eq. Rep. 214); Mills v. Mills, (9 Ir. Eq. Rep. 1.) of this, the objects and language of which are wholly Counsel was instructed to shew cause in Chancery, different; the words in the former are "no acknow- but by reason of some fatality, was unable to atledgment or promise by words only." Frost v. Bentend. It still is in my power to shew a state of gough, (1 Bing. 266,) and College v. Horn, (3 Bing. 119,) were also referred to. Hughes, Q. C., for the mortgagor, in support of the exceptions. There is nothing in the document to show that it was written after 1827, and therefore if evidence at all, it is evidence of a payment to 1827, and is therefore not within twenty years. Ld. Tenterden's act, and the 3 & 4 W. 4. c. 27, were passed to remedy the same evils, and the words in which the debt was secured does not alter the danger that was contemplated. Cited Willis v. Newham, (3 Y. & J. 518.) Chatterton in reply, submitted that the Court could not be called on to presume that this payment was made in advance, and cited Dowling v. Foxall, (1 B. & Beat. 193,) and Bodkin v. Vesey, (1 Jones, Ex. 139.) July, 16.-MASTER OF THE ROLLS.-In this case there was a memorandum in the handwriting of the mortgagor, Robert Creed, of his having paid interest on a mortgage of Feb. 1816, up to the 1st of Feb. 1827. The memorandum was not signed, and the question arises, whether it is sufficient evidence of payment within the 40th sec. of the 3 & 4 W. 4, c. 27, to take the case out of that statute. The decisions cited in support of the objections, have all been decided under the 9 Geo. 4, c. 14. Willis v. Newham establishes that a verbal acknowledgment of the payment of part of a debt is not facts which would prove the necessity of retaining him here. The prior creditor has possession of a fund more than sufficient to pay him. PENNEFATHER, B.-Conformably with the opinion I formerly gave, I think that where a receiver is appointed in a plenary suit, by a prior creditor, the receiver in a petition matter must be discharged. RICHARDS, B.-The cause, if any, should be shewn in Chancery. There is great difficulty in not allowing the competent court to adjudicate on the equities of the parties; the Master of the Rolls has given his opinion, and we have not the power of contradicting it. LEFROY, B.-The court, where the suit is instituted, can best deal with the case; parties can be added, and by a consent, justice can be adminis tered for all, and the clashing of jurisdictions prevented. If the court of Chancery had ordered that the petition creditor should consent, or that he should be restrained from proceeding in this court, there would be no doubt as to the mode of proceeding. This amounts virtually to that The order of the Master of the Rolls is a courteous mode of saying that an order to discharge the receiver here should be granted, in pursuance of his order. Instead of dis charging our receiver, it will be better to restrain him, as supposing a sufficient portion of land sold in the court of Chancery to pay off prior debts, it might be convenient to allow the receiver to act with respect to the remaining portion. Per Cur.-Let the receiver account, and be restrained from further interference, and on accounting, let him have his costs. Anderson v. Newry AND WARRENPOINT RAIL WAY COMPANY.-June 27. Injunction Railway Company entering without leave, or Lodging Money in Bank. Where a Railway Company having agreed to purchase lands, entered and carried on their works without the leave of the vendor; or having lodged in Bank, or paid the purchase money-The court granted an injunction to restrain them until the money be paid. acquiesce in said possession-That on the 2nd of should be paid into court-That the solicitor of the This was an injunction suit against the Newry and solicitor to furnish him with a concise abstract of part of the Company, advise that interest at 5 per until the receipt of this letter, plaintiff was not cent. be paid Mr. Anderson" (the plaintiff)—That apprised of the contents of said opinion-That plaintiff having declined this offer, his solicitor, on the 24th of March, 1848, wrote to the solicitor of the Company, requiring him to pay the purchase money, with interest thereon, from the date of the wise to lodge the same in bank, pursuant to the inquisition, at 5 per cent. to the plaintiff, or otherprovisions of the Land consolidation clauses actThat the tenants of the said purchased lands had refused to pay their rents without an abatement in respect of the land taken by the said CompanyThat the Company since their entry had made various works, ditchings, &c., with a view to the completion of said Railway, and had otherwise dealt with said lands without the sanction or acquiescence of plaintiff. The bill then prayed that the Company might be ordered and decreed to deposit in the Bank of Ireland, in the name, and court, the sum of £1000, to be placed in pursuance with the privity of the accountant-general of the of the provisions of the lands clauses consolidation act, to the credit of the plaintiff, and forthwith pay to the plaintiff lawful interest from the first day of May, 1846, to the day of lodgment, and that the said Company, their agents, servants, and workmen be, in the meanwhile, restrained by injunction from digging, cutting, &c., the said land on which work on said lands, or from spoiling, or holding they have entered, or from proceeding with any possession, or entering thereon, &c. plaintiff's title, as he was anxious to save the Company costs, and merely wanted such information as would enable him to prepare a proper conveyance -That on the 25th of the same month, plaintiff's solicitor furnished the required abstract That no The defendants admitted the agreement, and the reply was given thereto till the 4th of July follow-finding of the inquisition stated in the bill; but the ing-That some time in the month of June in the affidavit stated that shortly after the inquisition, the same year, the Company, without the knowledge or Company, through their solicitor, applied for liberty permission of the plaintiff, or his solicitor, entered to enter into possession, on lodging the purchase and took possession of said lands-That plaintiff money in a private bank, in the names of mutual had done no act, or other thing, to sanction or trustees That no reply was given to that applicaBefore Pennefather, Richards, and Lefroy, B. B., tion, and believing that the parties interested, even Pigot, C.B., at Nisi Prius. without the lodgment of the money, would have no |