was for value received generally, held a
fatal variance. Highmore v. Primrose.
Page 333
32. The defendant cannot give in evidence
illegality in the consideration of a bond,
unless he pleads specially. Harmer v.
Rowe.
334
33. Where the plaintiff's name was stated
in commencement of declaration to be
James Toll Hutchins, and the defendant
demurred specially, that the plaintiff was
named throughout in the subsequent part
of the declaration," said James" only, it
was held sufficient, because non constat,
but that "Toll" was part of the surname.
Hutchins v. Gilbie.
335
34. If a special sham plea be so framed as
to render it expedient for the plaintiff's
attorney to consult counsel, the court will
permit the plaintiff to sign judgment as
for want of a plea, and make the defend-
ant or his attorney pay the costs. Shad-
bolt v. Berthoud.
35. A parol agreement, giving time to a
principal obligor of a bond, cannot be
pleaded at law as a defence of the surety.
Davey and others v. Prendergass. 336
36. A count, stating "that defendant had
and received for plaintiff a sum of money,
to wit, 10s. to be paid by defendant to
plaintiff upon request; yet defendant, not
regarding his duty, had converted and dis-
posed thereof to his own use," is laid in
assumpsit, though colourably in trover, and
cannot be joined with counts in case; and
it is demurrable generally, though the de-
murrer goes only to that particular count.
Orton v. Butler.
343
37. A demand against a surviving partner
as survivor, may be joined with a demand
due from him, as if he were solely liable.
Golding v. Vaughan.
38. Where an act of parliament in the en-
acting clauses creates a power to do cer-
tain acts, " except in the places herein-
after mentioned," and the exceptions are
only specified in succeeding clauses, the
party claiming under a right derived from
such power, need not negative such ex-
ceptions.
Where an act of parliament prescribes
a particular remedy for an offence, it does
necessarily take away the parties' remedy
by action; and where an act prohibited
other persons than the scavenger from
carrying away dust from houses in certain
places, under a penalty of 10s. to be re-
covered before a magistrate, it was held
that the scavenger might still have his
remedy for an injury in this respect by ac-
tion. Qu. as to what is a sufficient pro-
perty in a thing to maintain rover. Ward
v. Bird.
39. A declaration in case against an Earl,
stating the Earl to have been "summon-
ed to answer," instead of "attached," is
bad. Hunter v. Earl of De Loraine.
Page 638
40. In action of assumpsit for use and occu-
cupation of lodgings by A. H., defendant's
wife, at his request, the defendant cannot
plead that A. H. was not his wife, as such
plea would amount to the general issue,
as well as tender an immaterial issue.
Sinclair v. Hervey.
642
41. A plea, justifying slandering the plaintiff
as a justice of the peace, of pocketing
fines of prisoners whom the plaintiff had
convicted, should state the names of the
parties convicted, and of whom the plain-
tiff had received the fines.
42. A plea (to a declaration against a tenant
for not using premises in husbandlike man-
ner, in repairing fences, &c. on his implied
promise so to do), that the fences became
out of repair by natural decay, and that
there was not proper wood (without spe-
cifying it), which defendant had right to
cut for repairing the fences; and that the
plaintiff ought to have set out proper wood
for the purpose of repairs, which plaintiff
neglected to do, without averring any re-
quest on plaintiff so to do, or a custom of
the country in this respect, is bad. Whit-
field v. Weedon.
43. A misjoinder of action against husband
and wife, may be taken advantage of by
general demurrer. May v. House and
Wife.
44. A plea (to a declaration on bond, condi-
tioned amongst other things for the pay-
ment of 3,000%.), that all sums of money
which became due on the bond were paid,
may be replied to generally, by a general
denial of the words of the plea, without
assigning any special breach. Turner v.
M'Namara, Executor of M'Namara. 697
See DECLARATION, 1, 4. IRREGULARITY,
1, 3, 4, 6.
1. Copy of a writ against John Stafford, and
notice at foot to appear calling the defend-
ant "John Stratford, you are served," &c.
was held to be a variance of which the de-
fendant could not avail himself on motion
to set aside service of process for irregu-
larity. Wilson v. Stafford.
355
2. John in the writ, and Joseph in the no-
tice, held amendable, and therefore a rule
to set aside same for irregularity was re-
fused. Badgett v. Lee.
355
3. A writ having a wrong return will not be
aided by a correct day being mentioned in
notice to appear. Anon.
4. Date of English notice in figures imma-
terial. Writ not signed by proper clerks
immaterial. King's title not material in
writ. Anon.
Page 356
5. It is not irregular to serve process even after
11 at night, process not being within the
rule as to service of notice, &c. before 10
o'clock at night, but may be served at any
time of the night. Anon.
357
6. The sheriff who knowingly arrests a man
by a wrong name is a trespasser; but if
he has taken a bail bond he is liable to an
attachment if bail above be not perfected.
357
Rex v. Sheriff of Middlesex.
2. Under particular circumstances, the court
will suffer a disclaimer to be entered with-
out costs. The King v. Holt.
366
3. Quo warranto against one who acted after
he had resigned, by writing, but without
deed. The King v. Payne.
367
4. Quo warranto for exercising the office of a
justice of the peace. The King v. —
368
5. Where the relator, on an application for
a quo warranto information, is the legal
adviser of the defendant, and has advised
him that he was duly elected, the court
will discharge the rule for the quo warran-
The King v. Payne.
369
6. Retail baker is not incligible as mayor,
though the officers of the borough settled
the assize of bread there. Rex v. Deane.
370
7. Party admitted to defend the defendant's
title. It is no objection to quo warranto,
that it is a friendly proceeding, in order
that the party might disclaim. Rex v.
Dr. Marshall.
370
8. Rule nisi granted for a quo warranto,
where continuing incompatibility, though
both offices held more than 6 years. Rex
v. Lawrence and another.
See LANDLORD AND TENANT, 3. BANK-
REPLEVIN.
See PLEADING, 6.
The plaintiff in replevin cannot plead in bar
a set-off to an avowry for rent. Qu.
Where an avowry, stating the plaintiff to
have held under a demise, at the yearly
rent of 3177. without stating when the rent
was payable, does not mean that the rent
was payable yearly. Laycock v. Tufnell
Page 531
REPLICATION.
See NON PROS.
RETURNS TO WRITS.
See respective heads of WRITS. EXECUTION,
1, 2. SHERIFFS, 2.
TO PLEAD AND REPLY, see PLEADING, 21,
30.-TO BRING IN BODY. SHERIFF, 3.-
TO PRODUCE RECORD, see STRIKING OUT
PLEAS, 2.
1. A rule at the end of the term may, by
special leave of the court, be drawn up for
three days. Anon.
2. Rule for a concilium obtained on Satur-
day, and served on the Saturday night, the
term ending on the Wednesday following,
is sufficient; four days are not in all cases
necessary at the end of the term. Brad-
shaw v.
372
3. Rule obtained on Saturday for Monday,
372
enlarged of course.
REGULÆ GENERALES IN KING'S
BENCH.
4. To prevent the use of spirituous liquors
in the King's Bench Prison, and empower-
ing the Marshal to remove offenders
themein to another prison, to be confined
there for so long as Marshal shall think
373
fit, not exceeding three months.
5. To prevent the setting aside a regular at-
tachment against sheriff for not bringing
in the body, or the staying proceeding on
bail bond, without affidavit of merits, or
affidavit that application is really made on
373
behalf of sheriff, &c.
6. To discharge rule of court Hilary Term
57 Geo. 3, as to ordering Master of Crown
Office to visit King's Bench Prison, and
order, that all complaints of prisoners
within the said prison must be delivered
to Marshal or his officer.
7. Order, that notices for justifying bail in
person, must be served before 11 o'clock
of forenoon of the day for which notice
ought to be served, except where further
time to justify has been allowed, in which
case notice must be served before three
o'clock in the afternoon of such day. 374
8. Order, that defendant in ejectment shall
specify in consent rule the premises for
which he defends, and consent that on
trial he will admit the possession of the
premises.
375
9. Order, that in country ejectments, served
before essoign days of Easter or Michael-
mas terms, tenant must appear within four
days after end of such term.
376
10. Order, that in rule nisi for setting aside
award, objections to award, &c. must be
stated.
376
11. Order, that if two or more notices of
bail have been given before bail appear to
justify, costs thereof must be paid before
justification.
376
12. Order, that no officer under Marshal
shall take fee for inquiry into solvency,
&c. of a party intending to take the bene-
fit of the rules.
376
13. Order, that sealer of writs shall not seal
a fi. fa. or ca. sa. without judgment paper,
&c. be produced to him. That attorney
must, on all bailable process, writs of at-
tachment, fi. fa. and ca. sa. indorse de-
fendant's place of abode, &c. That to
sign judgment on cognovit, cognovit must
be produced to clerk of dockets, and filed
with him.
14. Order, that no prisoner intending to
take benefit of insolvent act, shall be su-
perseded by plaintiff discontinuing to pro-
ceed in action.
book as special jury, two days before ad-
journment-day in London or Middlesex.
Page 378
19. Order, that Seal Office lie open from
eleven till two, and from five till seven,
during term, and ten days after issuable
term, and one week after any other, and
from eleven till three in vacation. 379
20. Order, that rule for supersedeas of de-
fendant out of custody of warden, &c.
must be filed, upon signing supersedeas.
379
21. Order, that no motion relating to a fine
or recovery shall be made on last day of
term.
379
22. Order, that defendant in ejectment shall
specify in consent rule premises for which
he defends, and consent that on trial he
will admit the possession of premises.
880
23. Order, that in country ejectments, serv-
ed before essoign days of Easter or Mich-
mas terms, tenant must appear within four
days after end of such terms.
380
24. Order, that affidavit on motion to enter
up judgment on old warrant, must state
that defendant is alive on a day in the
381
25. Enabling plaintiff to declare in C. P. on
process, returnable last return of the term,
so as to have a plea of the term. 381
QUARE EX. NON. ERROR,
3, 4. PLEADING, 24.
A scire facias is necessary, where an elegit is
See ORDER OF Sessions.
This court will not interfere with the prac-
tice of the court of Quarter Sessions, un-
less it appears to be manifestly wrong or
unjust. Where an appellant parish gave
notice before Michaelmas sessions, that
they would at these sessions enter and
respite, and try their appeal with effect at
the following sessions; and in the mean
time a negociation had taken place with
the respondents as to the settlement of
the pauper, but without any determination,
it was held to be necessary to give a fresh
notice of appeal for the following sessions,
to entitle the appellants to be heard. The
King v. The Justices of Essex.
PLEADING, 14. SETTING
ASIDE PROCEEDINGS, 3. Replevin.
moiety of a penalty is to be paid, he not
being the plaintiff, is not necessary in
prosecuting a qui tam action.
Page 392
2. The court will not prevent the plaintiff
from proceeding at the same time by ac-
tion for a false return, and a distringas to
make a return. Anon.
392
3. An action may be brought in a superior
court, when the demand is above 40s.
though it be reduced by a set-off. Gobed
v. Birt.
394
4. The Court of King's Bench will not stay
proceedings merely on an affidavit that the
debt was under 40s. Culliford v. Dyche.
395
5. Action may be brought in Court of Grand
Sessions in Wales, for goods delivered to
a carrier in London, but received at Caer-
narvon; and proceedings in action in Mid-
dlesex stayed, cause of action being under
40s. Anon.
6. The court will stay proceedings, if a de-
fendant be sued by bill as an attorney,
when he is not one. Nabb v.. 396
SHAM PLEADING.
See PLEADING, 34.
SHEEP WALK.
See EVIDENCE, 12.
SHERIFF.
See ATTACHMENT, 1, 4. POUNDAGE. PRO-
CESS, 6. REG. GEN. 5.
1. Rule for an attachment against an under-
sheriff, on the death of the sheriff, during
his year, under 3 G. 1, c. 15, s. 8, is not
absolute in the first instance. Anon. 389
2. Attachment refused against the sheriff
for not selling under a venditionem exponas,
where he had returned, he could not sell
for want of buyers. Anon.
390
3. Where there were three defendants, two
of whom were arrested and bailed, and the
plaintiff took an assignment of the bail
bonds; and as to the third, the sheriff re-
turned non est inventus. Under these cir-
cumstances the court discharged the rule
to bring in the body. Anon.
|