A power to trustees with the consent
of the cestui que trusts, testified by writ-
ing under their hands and seals attested
by two or more credible witnesses to
make sale of lands, is not well pursued
if the attestation be only sealed and de-
livered in the presence of the two wit-
nesses. By three against Mansfield C.
J.
Page 213
2. And an attestation added after many
years, witnessing the signing, sealing,
and delivery at the time of making the
deed, will not supply the defect. By
three against Mansfield C. J. Wright v.
Wakeford.
II. Arrest, detainer, bail, and appear-
III. Pleadings and bill of particulars.
IV. Trial, inquiry, and evidence.
V. Judgment, and reference to the pro-
thonotary.
VII. Staying and setting aside proceed-
ings.
1. If a clerk, having a benefice with cure
of souls, takes another benefice with cure
of souls of the value of Sl., he thereby
vacates the former.
831
2. Where an act of parliament creates a
new parish church and rectory, and di-
rects that the bishop shall confer a certain
prebend on the rector, and that the pre-
bend shall remain united and annexed
to the rectory for ever, this is not such
an appropriation of the rectory to the
prebend as makes it an appropriate be-1.
nefice within the stat. 21 H. 8. c. 13.
8. 31., and tenable with another bene-
fice having cure of souls.
ib.
3. So, though another act speaks of the
rectory as inseparably annexed to the
prebend. Brazen Nose College v. The
Bishop of Salisbury.
ib.
See EJECTMENT. OCCUPANCY.
IX. Waver of irregularity.
X. Writ of error.
XI. Of motions.
To obtain a distringas it must be sworn
that the Defendant is believed to keep
out of the way to avoid service of pro-
cess. Scott v. Gould.
156
The affidavit of service of a summons,
made in order to move for a distringas,
must set forth the tenor of the summons
served. Hill v. Wilkinson.
619
3. There is no other mode of proceeding
against two, of whom one is abroad, and
the other will not appear for him, but
appears for himself only, than by pro-1. The plea of non assumpsit to a declara-
ceeding to outlawry against him who is
abroad. Goldsmith v. Levy. Page 299
4. Summons and English notice to appear
at the return of the writ being from
Easter-day in one month is bad.
v. Trotter.
tion in debt may be treated as a nulli-
ty. Brennan v. Egan. Page 164
2. The pleas of non est factum and tender
are inconsistent, and cannot be pleaded
Ingle together. Orgill v. Kemshead. 459
3. Where a declaration was delivered to
II. And see AFFIDAVIT TO HOLD TO BAIL.
BAIL, IV. 2. EJECTMENT, 3.
1. If bail justify without the observation
of the counsel instructed to oppose
them, the Court will not require them
to come up again and justify de novo.
Hawkins v. Wilson.
666
2. A party called on to shew cause, may
oppose the rule in person, or by a new
attorney, without notice to the other
party of the order to change his attor-
ney. Lovegrove v. Dymond.
S. If a Defendant who pays the debt and
107, costs to the sheriff in lieu of bail,
under 43 G. 3. c. 46., puts in bail
above, who, being excepted to, render
him instead of juftifying, the Plaintiff'
is not entitled to receive out of court,
under s. 2., the money so deposited. ib.
4. But the Defendant may in such case
receive back his deposit. Harford v.
Harris.
ib.
5. If a guardian is changed pending an
action, the fact ought to be stated by an
entry on the record. Davies v. Lock-
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And see BILL OF EXCHANGE, 3, 4.
DAMAGES, 1. INQUIRY, WRIT OF, 1.
BANKRUPT, III. 3.
1. The Court will not, upon motion, give
leave to examine an attesting witness
to a deed upon interrogatories, and to
give such examination in evidence at
the trial, on the ground that he is inca
pable, through illness, of attending in
person, and that he is not likely to reco-
ver so as to be able to attend ; notwith
standing it also appears, by the affidavit,
that the Defendant had at one time ad-
mitted the execution of the deed; nor
will the Court on these grounds, grant a
rule for dispensing with the attendance
of
of such witness at the trial. Jones v.
Brewer.
Page 46
2. If the attesting witness cannot be found
to make affidavit of the execution of a
warrant of attorney, the attesting wit-
ness must be accounted for by affidavit,
before the Court will admit secondary
evidence. Waring v. Bowles. 132
3. The Court will compel the production
by a Defendant of an unstamped agree-
ment in his custody, to which the Plain-
tiff's claim to be parties in interest,
upon the instance of the Plaintiffs, in or-
der that they may get it stamped. 157
4. Although the Plaintiff be not an in-
strumentary party.
ib.
5. And although the Plaintiffs' interest no
otherwise appears than upon their own
declaration, which proves a claim, but
not an interest.
ib.
6. Semble, that the Court would by attach-
ment compel a Plaintiff to produce
deeds. Bateman v. Philips.
7. The Courts will not at a Plaintiff's in-
stance compel the production of an in-
strument to be stamped which is in the
hands of the Defendant, and to which
the Plaintiff is neither an instrumentary
party nor a party in interest. Taylor
v. Osborne, MS. case.
S. The rule restraining the production of
instruments to the application of a party
named therein, was much too strict; for
suppose a person, though no party to
deed, took an estate by way of remain-
der, he had nevertheless a strong inter-
est in the deed, and was entitled to com-
pel the production.
9. A copyholder claiming an interest may
obtain an inspection of the court rolls
without proving an interest.
162
10. Upon suggestion that a rule for a spe-
cial jury has been obtained for the pur-
pose of delay, the Court would not dis-
charge the rule, but directed the cause
to be tried by a special jury within the
17. If the leading counsel at nisi prius takes
one line of case, contrary to the opinion
of his junior counsel, the Court will not
permit the junior counsel to obtain a
new trial upon the ground that he was
prepared with evidence to support
another line of case, which his leader
repudiated. Pickering v. Dowson. 779
V. And see DAMAGES, EJECTMent, 3.
1. A demand of a plea made before the
rule to plead is given, will not entitle
a Plaintiff to sign judgment after the rule
expired, as for want of a plea. Hewit
v. Palmer.
2. Whether judgment for a sum of mo-
ney awarded by an award reducing a
verdict, can be entered before the day
on which the payment of the sum is a-
warded, qu. Callard v. Paterson. 319
But execution ought not to be had for
it before the day of payment.
Notice must be given to the Defendant
of the prothonotary's appointment to
compute principal and interest on a bill
of exchange. Branning v. Paterson. 487
5. A
5. A Defendant who moves for costs for
not proceeding to trial, cannot have
judgment as in case of a nonsuit for the
same default. Clark v. Simpson.
be the produce of the felony; the Court
on application will stay the proceedings
until after the trial of the indictment.
Deakin v. Praed.
Page 825
Upon a motion to set aside an eject-
ment and restore the possession upon
payment of the rent due, and costs, the
rent must be calculated only to the last
rent-day, not to the day of computing,
Doe on demise of Harcourt v. Roe. 883
8. A defendant executor against whom a
judgment had been signed, and who had
a good legal defence, having refused e-
quitable terms of compromise, the Court
denied him the indulgence of setting
Page 5917.
6. If the Plaintiff dies after verdict for the
Defendant, and the Defendant does not
enter up judgment within two terms after
the verdict, the Court have no authority
to permit it to be entered up afterwards,
nunc pro tunc. Copley v. Day. 702
VI. See FOREIgn AttachmenNT, 1.
VII. And see DEFEAZANCE.
1. A consent indorsed on a judge's sum-
mons binds neither party, unless the or-
der be drawn up and served pursuant
thereto. Joddrel v.
253 VIII. And see COST, V. 1.; and PRACTICE,
VII. 3., and V. 4.
1. Semble that no action will lie for costs.
Fry v. Malcolm.
A Defendant is not to be holden to bail
2. The Court will relieve a party from the
terms of filing no bill in equity, if the
evidence of an answer in equity is ne-
cessary to attain the justice of the case.
Grimstone v. Bell.
258
3. If a plaintiff, for the sake of costs, deli-
vers a declaration, and afterwards accepts
from the Defendant a sum which was
offered to him before declaration, he X. And see INTEREST OF MONEY. PRAC-
shall have costs only up to the time of
the Plaintiff's first offer. Sawbridge v.1. Neglect to deliver paper books in error
Coxwell.
punished by payment of costs. Johnson
4. The Court will not stay proceedings in v. Prescote.
an action for the escape of a certificated 2. If the Plaintiff, after obtaining a verdict
bankrupt taken in execution, and re- in ejectment, sues out a writ of habere
leased by the sheriff upon production of facias possessionem without waiting to
his certificate. Sherwood v. Benson. 631 tax his costs, the Defendant's writ of er-
5. The Court will not, after a Plaintiff ror will not operate as a supersedeas,
Doe on demise of Messiter v. Dynley. 289
has obtained judgment and possesssion
in an undefended ejectment, without
collusion, and has sold part of the pre-
mises, and transferred the possession, let
in a landlord to defend, from whom his
tenants had concealed the ejectment.
Goodtitle v. Badtitle.
6. The Plaintiff being indicted for felony,
sued a banker for money the Plaintiff
had paid him, which was surmised to
PRIVELEGE OF PARLIAMENT,
And see BAIL, I. 1.
1. To an action of trespass against the
Speaker of the House of Commons, for
forcibly, and, with the assistance of arm-2.
ed soldiers, breaking into the messuage
of the Plaintiff, (the outer door being
shut and fastened,) and arresting him
there, and taking him to the Tower of
London, and imprisoning him there; it
is a legal justification and bar to plead,
that a parliament was held, which was
sitting during the period of the trespasses
complained of; that the Plaintiff was a
member of the House of Commons; and
that the House having resolved "that a
certain letter, &c. in Cobbett's Weekly Re-
gister, was a libellous and scandalous pa-
per, reflecting on the just rights and pri-
vileges of the House, and that the Plain-
Tower; and issued another warrant to
the Lieutenant of the Tower to receive
and detain the Plaintiff in custody du-
ring the pleasure of the House; by vir-
tue of which first warrant the Serjeant at
Arms went to the messuage of the Plain-
tiff, where he then was, to execute it; and
because the outer door was fastened, and
he could not enter, after audible notifi-
cation of his purpose, and demand made
of admission, he, by the assistance of the
said soldiers, broke and entered the
Plaintiff's
's messuage, and arrested, and
conveyed him to the Tower, where he
was received and detained in custody,
under the other warrant, by the Lieu-
tenant of the Tower. Burdett v. Abbot.
It lies on the Plaintiff to discover whe-
ther the Defendant be entitled to the
privilege of peerage; and although he
may have often waived the privilege,
that will not make it regular to sue him
by common process. Fortnam v. Lord
Rokeby.
PROCEEDINGS, staying and setting
aside,
See PRACTICE, VII.
PROCESS,
See PRACTICE, I.
tiff, whohad admitted that the said letter, See AGREEMENT. CONSIDERATION. As-
&c. was printed by his authority, had
been thereby guilty of a breach of the
privileges of that House;" and having
ordered that for his said offence he should
be committed to the Tower, and that the
Speaker should issue his warrant accord-
PROMISSORY NOTES,
See BILLS OF EXCHANGE.
ingly; the Defendant, as Speaker, in ex-1. Mr. Serjt. Peckwell changed his name
ecution of the said order, issued his war-
rant to the Serjeant at Arms, to whom 2. Sir Vicary Gibbs knight appointed a
the execution of such warrant belonged,
to arrest the Plaintiff, and commit him
to the custody of the Lieutenant of the
judge of the Court of Common Pleas.
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