1814.

ASHTON and
Wife against
HAIGH.

was only necessary to tender a small sum, and to leave the remainder uncertain, and pay it afterwards.

LE BLANC J. The practice is otherwise; if the sum is left uncertain, it is at the peril of not being able to attach the witnesses.

Rule discharged, but without costs, on condition that the plaintiff should not demand back the surplus of the money paid (b) to the defendant's witness.

(b) The money paid witness was 157.

EXECUTION.

WILSON against KINGSTON.

CHITTY moved for a rule to shew cause why a capias ad satisfaciendum, and the proceedings thereon, should not be set aside, on the ground of irregularity. A fieri facias for a debt had been issued and the return thereto stated a levy of a part, and that goods and a lease of the value of 1. less than the amount of the sum indorsed to be levied, remained now in the hands of the sheriff unsold. The plaintiff sued out a ca. sa. for the residue, and the sheriff's return thereto recited the former fi. fa. and return, and stated that the goods and lease had been sold for l., being less than the debt; but it did not state any return by the sheriff, what had been done with the goods and lease. Under these circumstances Chitty objected that it was no return by the sheriff, being only a suggestion of the plaintiff's attorney that the lease was afterwards sold, and he relied on the judgment given by GIBBS C. J. in 2 Marsh. 78. Com. Dig. tit. Execution, H. Barnes, 213.

PER CURIAM.

Rule Nisi.

THE COURT afterwards pronounced the rule absolute, observing that the recital was not sufficient, it not being matter returned by the sheriff; and until he had finally returned what had been done with the property, no ca. sa. for the supposed residue could legally be issued.

(a) Where only part of the money has been levied on a writ, the first writ must be returned before a second execution can be issued. Barnes, 213. For that must be grounded on the first writ, and recite the proceedings thereon. 1 Tidd, 6th ed. 1066.

1816.

14th Nov.

Where a f. fa and goods taken under it

has been issued,

have been sold

for a part of the

debt, a ca. sa.

for the remainder cannot be

issued until

the sheriff has finally returned the fi. fa. (a).

1817.

23rd Nov.

ANONYMOUS.

Rule enlarged MEREWETHER shewed cause against a rule ob

for time for

sheriff to return writ, though there was only

affidavit that a

commission of

tained by West, for time for sheriff to return the writ. The affidavit only stated that a commission of bankruptcy had issued, and that notice was in the [BAYLEY J. How soon after levy?] Merewether. The levy was on the 30th October. commission was issued on 4th November.

bankruptcy had newspaper.

issued, and that

the sheriff was fearful that act of bankruptcy was before levy.

ABBOTT J. Were no assignees appointed?

The

Merewether. None. The affidavit only states that deponents were fearful that the act of bankruptcy preceded.

PER CURIAM. Let the rule be enlarged till next Term.

GUARANTEE.

DIXON against BROOMFIELD.

1814.

11th Nov.

A memorandum written by plaintiff's, in the presence of the defendant,

a clerk of the

that the defendant had called

would be re

PARKE moved to set aside a nonsuit. The action was brought on a guarantee, in a note addressed to, and left at the plaintiff's, which stated that "Mr. Bromfield called to say that he will be responsible for goods delivered to Mr. H." This was written by the clerk of the plaintiff in the presence of the defendant. to say, that he [LORD ELLENBOROUGH C. J. Was there any evidence sponsible for the plaintiff, is that the defendant assented to it?] Parke. Yes. not a sufficient [BAYLEY J. Had he signed it?] Purke. No. [LORD within the staELLENBOROUGH C. J. said, that if this was evidence, tute of frauds. no one could safely go into a shop, for any person there might write down a guarantee, upon which he might be made liable to a large amount.]

Rule refused.

undertaking

BOVILL against TURNER.

BOLLAND moved to set aside a nonsuit. It was

1815.

13th Nov.

A guarantee for an action for the price of coals, the payment of coals to 50%. for

payment for

which defend

ant would be

which the defendant had guaranteed in these words: "You may let Lany have coals to 50l., for which I answerable at

guarantee (~).

any time, is not will be answerable at any time." Coals were supplied a continuing for many years, and many were, from time to time, delivered and paid for; but ultimately more than the sum of 50l. was in arrear.

(a) See 12 East, 227. 2 Campb. 413. 436.

1815.

BOVILL against TURNER.

BAYLEY J. You say it is a running guarantee for 50l. at all times.

Bolland. Lany was a dealer; he could never be supposed to be confined to 50l. only. There was notice afterwards that the defendant would not be liable further.

ABBOTT C. J. There was evidence that the words "at any time" were introduced afterwards, because the plaintiff thought they were omitted.

BAYLEY J. He was only a guarantee for 501.

Rule refused.