1806. FREELAND versus GLOVER lordship read the letter,] Could it be understood that provision ran low, unless they had been a long time on the coast? The men might have been reduced sudden- and Another ly but not the provisions. I do not expect to get all my wood till the latter end of the next month; then you may expect my sailing.'-Did one ever hear of an African voyage to continue on the coast only two months, from March till May? The ivory, palm oil, bees wax, and pepper, I made mention of in my last letter.-If the former letter had stated that he was at Gaboon; this would not have stated that he arrived on such a day; which plainly shews that he had been somewhere else. The underwriter was upon the ship from the 24th of March only, but must have understood that she had been long upon the coast, and if this did not contain all the information he wished to have, he ought to have inquired.” LE BLANC, J. of the same opinion, and was after stating similar grounds for that opinion, concluded by saying, that there were many circumstances communicated by the letter to call upon them to inquire, if they did not take it as a desperate risk upon a long premium. RULE ABSOLUTE. BROOK against BENNETT.-June 16. Although common process may be served on the last day of the return, and although the declaration may be filed de bene esse on the same day, and notice served, yet if the process 1806. - BROOK versus BENNETT. be served at the same moment of time it is bad, for it excludes the possibility of the declaration being well filed at the time of the service of notice since the declaration cannot be filed in point of law till after.* THE plaintiff's attorney served a notice of declaration filed de bene esse, on the 3d day of May, and at the same time served the process. It was the last day of the return of the process, and, finding that the party was not at home, the clerk waited as long as he could, and at last found an opportunity of serving both together. On a rule to shew cause why the proceedings should not be set aside for irregularity. It was admitted that the process might be served on the last day of the return, and the declaration be filed and notice be given on the same day, but that here, as the process was served at the same time with the notice, and the declaration could not be filed de bene esse, until after the process issued, the notice of declaration must have been served before the declaration could have been filed. And by the court. "If there had been the least interval we would have intended that the process had been served first. We will do any thing but presume an impossibility, and here it is impossible that the declaration could have been filed when the notice was served." RULE ABSOLUTE. But service of a latitat at 8 o'clock in the evening of that day on which it is returnable is good, though the declaration he left in the office in the course of the same day. 1 T. Rep. 191. and Bailiff, Where a sheriff's officer was written to by the plaintiff's attor- Agent. Arrest. ney to execute the process and receive the debt and costs, he did so, and paid the debt to him, but there was a dispute, between him and the plaintiff's attorney, as to the costs; held, the plaintiff's attorney could not proceed upon the bail bond for the costs; the debt and costs being paid to his agent. ON a rule to shew cause why the proceedings on the bail bond should not be set aside, the following BURTON. facts appeared: On the 23d of January, Burton was arrested by one Broom a sheriff's officer at the suit of the plaintiff, and paid him 51. 15s. 6d. for the costs, with an undertaking to pay the debt; and on the 3d of February the debt, amounting to 3881. 7s. Sd., was paid before the return of the writ. The plaintiff had since taken an assignment of the bail bond and was proceeding upon it against the defendant. Broom the sheriff's officer said, that he received the warrant from Martin, an attorney at Hull, to arrest Burton for the above sum, that he did arrest him, and he paid the debt and 51. and upwards for the costs, that he received a letter from Martin with the writ authorising him to receive the debt and costs, but he did not state what costs nor did he in his affidavit set out a copy of the letter; he added that he paid Martin the debt with the costs, but did not say what costs, before the return of the writ: Martin, the attorney, on the contrary stated that about the 28th or 29th of January, Broom called upon him to settle with him for other arrests, and informed him that he had arrested Burton, and that Colonel Thornton and another gentleman were his bai but did not then say any thing about the costs. Afterwards however, he said he had received 51. 15s. 6d. for costs, and that his costs were five guineas, and there3 K NO. XXXIV, N. S. JONES versus Practice Changing the venue. upon threw down 10s. 6d. in payment of the residue, which Martin refused to take; that he, afterwards, called again with a bill for the 3801. 17s. 8d. which was accepted for the debt. BARROW, in support of the rule, contended that Broom being the agent of Martin, the attorney for the plaintiff, and he having received the debt and costs, the proceeding upon the bail bond was wholly irregular. "Although he did not say that he was agent yet he stated that he was authorized by the plaintiff's attorney to receive the debt and costs, and it appeared that he was in the habit of doing so frequently." LAMBE, contrà, contended that there was a collusion between the bailiff and the defendant, and that he was the agent of both. Lord ELLENBOROUGH, C. J. to arrest the defendant and to "He was employed receive the debt; he was the agent of the parties. He received 31. 13s. 6d. for the costs and 21. 2s. for the arrest. RULE ABSOLUTE. ANONYMOUS.-June 8th. Venue not allowed to be changed from Lancaster to London, on account of a great number of witnesses residing there, who were to prove the commodity sold to have been bud, in an action by the vendee against the vendor. ANONYMOUS. RICHARDSON moved to bring back the venue on the ground, that a great number of the witnesses resided in London. The cause was removed from London to Lancaster. The action was for a disecit,* It appears from my note, that the counsel stated it to be an action for a disceit, but it is probable that he meant not technically speaking an action for a disceit: for it is said, that, in such an action, the venue could not be changed. This case does not apply to that point; which was not noticed. in the sale of a quantity of turpentine, which was to be manufactured in London, and when the goods came to London they were discovered to be of a bad quality. A great number of witnesses whom it would be necessary to call to prove the bad quality of the commodity, and whose names were in the affidavit, resided in London; but the plaintiff could not swear that the cause of action arose in London, nor could he undertake to give material evidence in London. The contract was made at Liverpool and the delivery of the goods in London. GROSE, J. Before whom the motion was made, REFUSED the RULE NISI. 1806. ANONYMOUS, TOMKINS against WHITE.-7th June. chaser. A. purchases, at a sale by auction, a lot described in the particu- Auction. Venlars of sale, as eleven houses, No. 1, 2, 3, &c. situate, &c. und dor and purit is stated that “the estate is held by lease of B.:" previous Particulars of to the lease a small part of the ground of No. 2, is subtracted sale. from the possession of the lessee; but the lease, nevertheless, contains a description and plan, in the margin, of the whole ground plot, including that part. Held, that although in equity B. should not be entitled to enforce the covenants in the lease as to that part of the ground, yet that the parti culars of sale being with reference to the lease, without an exception of the plot subtracted from the possession, A. the purchaser is entitled to call upon the vendor to complete his pur. chase, by making a good title to the whole estate contained in the lease, and that an assignment of the lease is not a compliance with the conditions of sale, the vendor not being able to convey the above-mentioned small plot of ground. ON an action by a vendee against a purchaser for not completing a contract, and for money had and received, &c. which was tried before Lord ELLENBO ROUGH, C. J. at the sittings after last Hilary term, the case was as follows:-The plaintiff was the pur TOMKINS versus WHITE. |