as the copy was irregular, it was competent for the defendant to object that the bail-bond, which was founded upon the capias, was irregular also. Archbold, contrà.-The plaintiff admits that the copy of the capias was irre gular, for want of the indorsement; but the defendant ought to have applied at chambers to set aside the copy of the process, and not the bail-bond, for irregularity. By R. Mich. T. 3 W. 4, 10, it is ordered, "If the plaintiff, or his attorney, shall omit to insert in, or indorse on, any writ, or copy thereof, any of the matters required by the said act to be by him inserted therein, or indorsed thereon, such writ, or copy thereof, shall not, on that account, be held void, but may be set aside as irregular, upon application to be made to the Court out of which the same shall issue, or to any judge." Here the writ was properly indorsed, and it was the copy which was irregular. In Haskar v. Jarmaine (a), where the writ was irregular, but the service was regular, and the defendant moved to set aside the service for irregularity, the Court discharged the rule, saying, "You might have moved to set aside the writ and the service. We cannot say that the proceedings are more irregular than you state them to be." Smith v. Clarke (b). TINDAL, C. J.-This is a motion, made by the plaintiff, to set aside two orders, which have been made at chambers; and the question is, whether the rule shall be made absolute as to both or either of them. As to the order, that the proceedings on the bail-bond should be set aside, the rule must be discharged, with costs, because the proceedings were taken in breach of an engagement to suspend them. As to the other point, it appears that the summons was taken out to set aside the bail-bond for irregularity; but there was no irregularity in the bailbond itself; the only objection was, that there was no indorsement on the copy of the writ of capias, which made it irregular, and not void, according to the rule Mich. T. 3 W. 4, 10. The proper summons would have been, to set aside the copy of the writ of capias and the subsequent proceedings. The rule to set aside that order must, therefore, be made absolute, the defendant being allowed six days to put in bail to the action. GASELEE, J., concurred. VAUGHAN, J.-The proper proceeding would have been to apply to set aside the copy of the writ and the subsequent proceedings. BOSANQUET, J.-The only doubt I felt was, whether, as there had been no service of a true copy of the capias, the bail-bond was not void; just as if a bailbond is given upon an insufficient affidavit to hold to bail. But the rule of court expressly says, that the omission only makes the process irregular, but not void; and, as this copy has not been set aside for irregularity, it stands good. Rule accordingly. Com. Pleas YEATES V. CHAPMAN. Nov. 15. A defendant is not entitled to a particul.r of demand, on a count on a bill of ex. change. BROOKES V. FARLAR. IN debt, by the drawee of a bill of exchange against the drawer, the declaration contained a count on the bill, with counts for money paid, and on an account stated; and the plaintiff delivered particulars of demand, by which it appeared that he claimed 947., “being part of the consideration on the bill of exchange." The plaintiff afterwards amended the declaration by striking out the two last counts, and the defendant applied without success to a judge at chambers for further particulars. Bompas, Serjt., obtained a rule nisi for further particulars, upon an affidavit which stated that a tender had been made of a larger sum than was due on the bill of exchange; and that the plaintiff had neglected to deliver any invoices with the goods, in payment of which the bill had been given. Stephen, Serjt., shewed cause, on an affidavit which contradicted the statements made by the defendant, and cited Cooper v. Amos (a), and Snelling v. Chennels (b). Bompas, Serjt., contended that it was apparent the plaintiff was suing upon the consideration for which the bill had been given, and not on the bill itself; and that in such a case the defendant was entitled to have a particular of the demand, to enable him to make a tender, or to pay money into Court. TINDAL, C. J.-This rule would not have been granted, if we had known the state of the record. Where the plaintiff declares only on a count for a bill of exchange, it is only on very strong grounds that the defendant is entitled to a bill of particulars at all. Here it appears that the defendant knows, within one or two pounds, what the plaintiff's demand is. This is certainly a case in which we cannot interfere. GASELEE, J., VAUGHAN, J., and BOSANQUET, J., concurred. (a) 2 Car. & P. 267. Rule discharged, with costs. (6) 5 Dow. P. C. 80. Nov. 21. LAMONT Vouchee. The warrant of SCRIVEN, Serjt., moved to amend a recovery. attorney in a recovery cannot be amend The vouchee's name was Robert William Alexander Lamont; but he was named, in all the proceedings, as William Robert Alexander Lamont, by which name he had executed ed, even to the the warrant of attorney, and the deed to lead the uses of the recovery. [Tindal, C. J.-As he has executed the deed in the name by which he is described, would he not be estopped thereby?] The purchaser will not be extent of trans posing the names of the vouchee. satisfied unless the names are transposed according to the fact; and as the vouchee lives in the West Indies, great delay will be avoided if the amendment is allowed. TINDAL, C. J.—The vouchee is not dead, and you can easily take proceedings under the new statute. The difficulty is as to the amendment of the warrant of attorney. There are cases which shew that the Court will not meddle with that (a). If you can find any authority to support your application, you may mention the matter again. GASELEE, J., VAUGHAN, J., and Bosanquet, J., concurred. (a) See Addis, dem. Power, vouchee, 7 Bing. 455. Com. Pleas. w LAMONT GALE v. WINKES. dis It Νου. 21. at chambers Where a judge had ordered a distringas to issue upon an affidavit, which shewed but two appointment to calls and one serve the summons, the to set it aside, after it was ARCHBOLD obtained a rule nisi to set aside a judge's order for a tringas, and also the distringas which had been issued, for irregularity. appeared that the distringas had been granted by a judge at chambers, upon an affidavit that, on the 13th of October, the plaintiff's attorney went to the defendant's house to serve a copy of the writ of summons, but the defendant was not at home; that he thereupon left a note with a female at the house, thereby informing the defendant of the purport of the visit, and that if he did not call on the plaintiff's attornies before two o'clock on the following Saturday, the Court refused writer would call again on the evening of that day, at nine o'clock; that the defendant, not having called at the time appointed, another application was made at his house on the Saturday evening, at nine o'clock, when the female stated that she had delivered the note to the defendant, but that he was not then at home, nor had he left any message. A copy of the writ of summons was then left. Two objections were made: first, that the learned judge ought not to have granted the distringas until three calls and two appointments had been made: secondly, that the writ of distringas under which the sheriff had levied on the defendant's goods, was not indorsed with the amount of the debt and costs, in pursuance of R. Hil. T. 2 Wm. 4, II., and R. Mich. T. 3, Wm. 4, V., and was therefore irregular. Wilde, Serjt., shewed cause.-By 2 Wm. 4, c. 39, sec. 2, if it shall be made appear by affidavit," to the satisfaction of a judge," that a defendant cannot be compelled to appear without some more efficacious process, then the judge may order a distringas to issue; and although it has been usual to require that three calls and two appointments should be made, there is nothing to prevent a judge from exercising his discretion upon that subject. The defendant does not now swear that he did not receive the note, or the copy of the writ of summons. It is not necessary to make three calls, if it can be made manifest to the Court that the defendant is keeping out of the way (a). [Tindal, C. J.—Or suppose the party were seen to take his goods away, to VOL. II. (a) See the cases collected, Tidd's New Practice, 76, note c. T executed; the defendant not having sworn that he did not the appoint receive notice of ment. A writ of dis tringas, not indorsed with the amount of the debt and costs, is irregular. Com. Pleas. GALE v. WINKES. avoid the levy under the distringas?] In all such cases, the Court or a judge debt and costs, on the copy of the writ of summons. Archbold, contrà.—The learned judge would not have granted this distringas, if some imposition had not been practised upon him at chambers. [Bosanquet, J.-The judges read the affidavits. Tindal, C. J.-Suppose the order had been inadvertently made, should you not shew that you did not receive notice of the appointment?] At all events, the indorsement was necessary on the back of the distringas. TINDAL, C. J.-This rule must be made absolute, so far as it relates to the writ of distringas, on the ground that no indorsement was made of the amount of the debt and costs. As to the other part of the rule, I am not satisfied we ought to set aside the judge's order. The statute has left the power of granting the writ of distringas to the discretion of the Court or of a judge. I am far from saying, that it is not usual to require three calls and two appointments, and perhaps I should not have granted this application. But the question is, whether rebus sic stantibus, there might not have been sufficient to satisfy the learned judge that the distringas ought to issue; and the defendant, not having now denied that he did receive the letter which was addressed to him, and the copy of the writ of summons, I think we may refuse to grant the former part of this application, without breaking into the established rule of practice. GASELEE, J.-I am of the same opinion; it is said to be a positive rule of practice, not to grant the distringas without three calls and two appointments, but that is not so. The defendant does not state that he did not receive the letter, and I think the learned judge was justified in granting the distringas. VAUGHAN, J.—I am of the same opinion. It is entirely in the discretion of the Court or a judge whether a distringas shall issue. The practice is, no doubt, as it has been stated; but it is not an imperative rule to require three calls and two appointments. BOSANQUET, J.The Courts have required, as a general rule, that three calls and two appointments shall be made, but their discretion is not confined in that respect. There were circumstances in this case from which the learned judge might have considered it necessary to order the distringas, and he having exercised his discretion, I am of opinion that we ought not to interfere. Rule absolute to set aside the distringas; refused as to the other part. A TROWER and another v. CHADWICK. CTION on the case. The first count of the declaration stated, that the plaintiffs were lawfully possessed of a certain vault or cellar, situate in the city of London, and used and occupied the same in and for the purpose of carrying on their trade or business of wine merchants, and that the plaintiffs kept and had in their said vault or cellar, divers large quantities of wine, to wit, 30,000 bottles of wine; and divers, to wit, 30,000 bottles of the plaintiffs, of great value, to wit, of the value of 2,000l.; that before and at the times of the committing of the grievances by the defendant, as hereinafter next-mentioned, the plaintiffs' said vault or cellar adjoined certain other vaults, and certain walls there, and in part rested upon and was of right in part supported by part of the said adjoining vaults and of the said walls, and the plaintiffs, before and at and during those times, were of right entitled that their said vault or cellar should be so supported in part by the said parts of the said adjoining vaults and walls, without the hindrance or disturbance of any person. That before and at the times of the committing the grievances hereinafter mentioned, there were certain foundations belonging to and supporting the said vault or cellar of the plaintiffs, and that they, of right, had enjoyed, and still of right ought to enjoy, such foundations, and the benefit and advantage thereof for the support of their said vault or cellar, without the hindrance or disturbance of any person; yet, the defendant, well knowing the premises, but contriving and intending to injure the plaintiffs, heretofore, to wit, on the 1st October, 1835, and on divers other days and times afterwards and before the commencement of this suit, wrongfully and injuriously took down, pulled down and removed, and caused and procured to be taken down and removed, the said vaults and walls so adjoining the said vault or cellar of the plaintiffs, by which the said last-mentioned vault or cellar, was so in part supported, as aforesaid, without shoring up, propping up, or otherwise securing or taking other reasonable and proper precautions, to support, or secure, or shore up the said vault or cellar of the plaintiffs, so as to prevent the same from giving way, or being weakened, or damaged, or destroyed on that occasion; and also, then and there wrongfully and injuriously dug, and made, and caused, ed that he was 1. In case the plaintiff declar possessed of a adjoined other vaults, and that he was of right entitled that his vault should be supported by the adjoining vaulis, and that he of right enjoyed certain foundations for vault, which the support of his vault; but that the defen dant wrong fully and injudown the adriously pulled joining vaults, without shoring the plain up tiff's vault; disturbed the exercise of the defendant's rights; and that, if the defendant meant to object, that the plaintiff's title was not alleged with sufficient certainty, he ought to have demurred specially. 2. A second count alleged, that the plaintiff was possessed of a vault, and that the defendant was about to remove other vaults next adjoining to it, and that it was the duty of the defendant, to give notice of such his intention; and also, to use due care and skill, and take reasonable precautions in pulling down the vault; and that the defendant wrongfully and injuriously pulled down the vault without giving notice, and that he did not use due care and skill, or take reasonable precautions, but that he pulled down the vault in a careless, unskilful, and improper manner, by reason whereof, the vault of the plaintiff was weakened. Held, that the allegation of want of care and skill, shewed a breach of duty which was imposed by law, and that the declaration shewed a good ground of action. Whether the obligation to give notice to the plaintiff, resulted as an inference of law, from the mere juxta position of the walls.-Quere. 3. A plea to the first count, that the defendant was not bound, by law or otherwise, to shore up the plaintiff's vault, is bad; first, because it traverses that which is only the description of the means by which the injury was sustained; and secondly, because it raised an issue in law. 4. Where the defendant is the proximate cause of damage, it is no answer to say, that the falling of certain timber, which was the immediate cause of the damage, was not occasioned by any act or neglect of the defendant, or by the breach of any duty cast upon him by law. T 2 |