1813.

22d May.

If a cause

where there is joinder on demurrer and no argument, be struck out of the paper, no one praying judgment, the cause must be entered de novo (a).

ANONYMOUS.

POLLOCK, F. moved for judgment for the plain

tiff on demurrer, in a case where there was no argument. The cause had been struck out of the paper when called on in due order, nobody appearing to pray judgment for plaintiff.

LE BLANC J. Where it has been struck out, it ought to be restored again.

ELLENBOROUGH C. J. said, from this time we will not admit of these motions; and if they are struck out they must be entered again in regular course.

(a) When counsel has had his brief in due time, and is accidentally or inadvertently absent at the time the common paper is called over, the Court will now, on his moving for that purpose, allow him to take judgment as if he had been present.

SUBPOENA.

MA

BENNETT against JONES.

ARRYAT shewed cause against a rule obtained for an attachment against the witness, for not attending the trial of a cause after having been served with a subpoena to produce judgment book, to prove day of judgment, which date does not appear by any of the records of the office. It appeared by affidavit, that when the subpoena was served on Mr. Jones, he said he would send his clerk with the book. clerk accordingly attended, but not being able to explain the practice and the nature of the book, the plaintiff was nonsuited.

The

PER CURIAM. To bring the officer into contempt, the person serving the subpœna should have stated that his personal attendance would be necessary.

SURETY.

Rule discharged.

CH

ATKINSON against CARTER.

HITTY moved for a new trial, or to enter a nonsuit. This was an action on a guarantee, dated in 1817, and as follows: "I hereby engage to pay you, on Mr. Thomas Lamb's account, 50l., at the expiration of the usual credit, on the event of any

deficiency on his part so to do." It appeared that Lamb had become bankrupt. Chitty objected on the

1818.

25th Nov.

The considera

tion must be

stated on the face of a gua

rantee. But no notice of nonpayment by principal, or

demand on

surety, seems necessary to be

averred or

proved. Semb. " credit," and "usual credit," are synonymous. Notice to produce, served at eight o'clock of evening before trial, too late.

1818.

ATKINSON against CARTER.

trial; 1st. That a consideration was not stated in the guarantee. 2d. That there was a variance; the declaration describing the guarantee as "credit" generally, and in the guarantee the expression was " usual credit." Sd. That notice of the nonpayment by the principal, and of demand of payment on the defendant, were stated and were necessary, Cro. Jac. 500. but there was no proof of any demand on the defendant ; a notice to produce a letter demanding payment was served only at eight o'clock in the evening before the trial, which it was submitted was too late (a).

ABBOTT C. J. I thought that the notice served at eight o'clock the night before the trial was too late. I thought there should have been a demand; but I refused to nonsuit the plaintiff on that ground.

Marryat and Gaselee cited Wain v. Walters, 5 East, 10. Slade v. Gill, 9 East, and 14 Ves. jun. and contended, that if it were necessary, the consideration sufficiently appeared on the face of the guarantee; and there was no variance, and no demand or request on the principal or surety was necessary.

THE COURT intimated a decided opinion, that the notice to produce was served too late, and therefore that the defendant was not bound to produce the letter; but they overruled the second and third objections, saying as to the last, that no notice or demand was necessary, for that a surety was bound to enquire and inform himself whether or not the principal had paid besides, it appeared that the principal had become bankrupt, which excused a demand on him, or notice to the defendant. As to the first objection, the Court took time to consider; and ultimately decided that the guarantee was insufficient, for not distinctly disclosing on the face of it the nature of the consideration.

(a) 5 Esp. Rep. 46.

TITHES.

PAYNTON, Clerk, against ISAAC KIRKBY.

F
RERE Serj. moved to set aside a verdict ob-
tained for the plaintiff at the Cambridgeshire
summer assizes, before Mr. Baron GRAHAM, in an
action for not setting out tithes in the parish of Dod-
dington. In 1812, John Kirkby being then occupier of
the land, entered into an agreement for payment of
a composition in lieu of tithes for sixteen years, and
paid such tithe until the year 1816, when he gave up
the farm to Isaac Kirkby, the defendant. This action
was brought against Isaac Kirkby for not setting out
tithes, and for retaining them during the year 1816;
and in answer to the action, the agreement with John
Kirkby was set up. The tithes in question formed a
part of those embraced by the contract.

(a) It has been determined in a court of equity, that where a composition is made for tithes, and the incumbent dies, and his successor receives the next payment due under the composition, the executors of the deceased incumbent have a right to a rateable proportion of the money paid, with reference to the different periods of enjoyment. Aynsley v. Wordsworth, 2 Ves. and Beams, 331. But see Williams v. Powell, 10 East, 269. However, the composition determines on the death of the incumbent, and his successor is not obliged to give notice of his intention to take the tithes in kind; but if the successor, after induction into the benefice, accept the composition, such acceptance will be deemed a confirmation; and in order to determine the composition, a regular notice must be given. Brown v. Barlow, 3 Gwillim on Tithes, 1001. Bunbury, 294. 10 East, 272. The notice to determine a composition is analogous to a notice to quit on a holding of lands, and therefore should be half a year's notice, ending at the expiration of the year. Wyburd v. Tuck, 1 Bos. & Pul. 458. Tell v. Wilson, 12 East, 83. While the composition subsists, the tenant cannot set up as a defence to an action for money due upon it, that the plaintiff was simoniacally presented. Brooksly v. Watts, 2 Marsh, 38. 6 Taunt. 333. S. C.

1818.

9th Nov.

Quo warranto

for exercising G

the office of a justice of the peace (a).

THE KING against

ASELEE moved for a rule nisi, for an information in nature of a quo warranto against the defendant, for exercising the office of justice of the peace of Totness.

BAYLEY J. asked, if there was any instance in which a quo warranto had been granted for the office of justice of the peace.

Gaselee stated, that he had before obtained a quo warranto for such an office. The charter makes this a corporate office. There is another office, that of receiver. The defect complained of is, that the defendant has been elected under a mayor who has been subsequently ousted. The defendant exercised the office of justice of the peace for one year after the mayoralty determined. The year has now ceased.

BAYLEY J. The rule then, it seems, will be of little service to you. The office alluded to, of receiver, is something like that of chamberlain, which is a corporate office.

The rule nisi was granted; and was afterwards enlarged and on BAYLEY J. communicating with AB

(a) The usurpation of franchises and offices in corporations, constitutes the principal ground for applications to the Court for this kind of information. By the common law such usurpations could only be punished by a prosecution at the king's suit, though the dispute were really between party and party. The stat. 9 Ann. c. 20. s. 4. gave liberty to file informations at the relation of a private person, who was made liable to costs if there was judgment for defendant; and they must be filed by leave of the Court. See 5 T. R. 379; and Selwyn's Nisi Prius, 4th ed. tit. Quo Warranto. The Court will make the rule for a quo warranto information absolute, though the party has since the rule resigned his office, and the resignation has been accepted. 2 M. and S. 75,