Replication plea. That the plaintiff did not receive and accept the bond and warrant to confefs judg faction. them, because he faith, that the faid Hefter did not pay to the faid Thomas, the faid principal fum of 300l. mentioned in the faid condition, with all intereft then due for the fame, in manner and form as the faid James and Simon have above in that plea alledged, and this he prays may be inquired of by the country. And as to the plea of the faid James and Simon, by to the fecond them fecondly above pleaded in bar, the faid Thomas faith, that he, by reafon of any thing in that plea alledged, ought not to be barred from having his aforefaid action thereof against them; becaufe protefting that the faid Hefter did not deliver to the faid Thomas, the faid writing obligatory and the faid deed or inftrument in that plea in that behalf mentioned in full fatisfaction and difcharge of the money due and owing to the faid Thomas on the faid bond now brought here into court, protefling alfo, that the faid fheriff, in that plea mentioned, did not caufe to be made of the goods and chattels of the faid Hefter, the faid debt and damages in that plea mentioned: for replication in this behalf, he the faid Thomas fays, that he the faid Thomas did not receive and accept the faid writing obli gatory and deed or inftrument, in that plea in that behalf mentioned, of and from the faid Hefter, in full fatisfaction and difment in fatis- charge of the faid money, due and owing on the faid writing obligatory now brought here into court, in manner and form as the faid James and Simon have above in that plea alledged, and this he also prays may be inquired of by the country. And as to the plea of the faid James and Simon by them thirdly above pleaded in bar, the faid Thomas faith, that he by reason of any thing in that plea alledged, ought not to be barred from having his aforefaid action thereof against them, because protefting, that the faid Hefter did not deliver to the faid Thomas the faid writing obligatory, and the faid deed or inftrument, in that plea in that behalf mentioned, in full payment, fatisfaction and difcharge of the money due and owing to the faid Thomas, on the faid bond, now brought here into court; for replication in this behalf, the faid Thomas faith, that he the said Thomas did not receive and accept of and from the faid Hefter, the faid writing obligatory, and deed or inftrument, in that plea in that behalf mentioned, of and from the faid Hefter, in full payment, fatisfaction and difcharge of the faid writing obligatory now brought here into court, in manner and form as the faid James and Simon have above in that plea alledged; and this he alfo prays may be inquired of by the country, &c. And as to the plea of the faid James and Simon, by them laftly above pleaded in bar, inafmuch as the faid James and Simon have not denied the faid action of the faid Thomas; and inaf ment as to the much as the faid James and Simon have therein confeffed to have goods and chattels in their hands, to the value of tol. to be adminiftered, The like replication to the third plea. Replication to the 4th plea. The plaintiff prays judg Jol. in de fendant's hands. adininiftered, the faid Thomas prays judgment as to thofe goods and chattels, and that the faid 10l. parcel of his faid debt may be adjudged to him, to be levied of thofe goods and chattels, together with his damages by him fuftained, by reason of the detaining of the faid parcel of the faid debt. And as to the refidue of the faid debt, the faid Thomas faith, that he by reafon of any thing by the faid James and Simon in that plea alledged, ought not to be barred from having his aforefaid action in that refpect against them, because he fays, that he the faid Thomas, on the 14th day of February, in the 9th year of the reign of our Lord the now King, fued out his original writ against the faid James and Simon; and that the faid James and Simon, on And further the day of fuing out the faid original writ, had goods and chat- fays, that on tels which were of the faid Richard Frampton, at the time of the day of fuing forth his death, to the value of the refidue of the faid debt in their the original hands to be administered, over and above the faid goods and writ, the dechattels fo confeffed as aforefaid, wherewith the faid James and fendants had goods of the Simon might and ought to have fatisfied the faid Thomas the teftator to the refidue of the faid debt, to wit, at Yeovil aforefaid; and value of the this he is ready to verify, wherefore he prays judgment, refidue of the and the refidue of his debt aforefaid, together with his damages and above by occafion of the detaining thereof, to be adjudged to him, the faid 101. 3c. George Wilfon. debt, over plication was held to be a good one. Serjeant Burland moved to fet the fourth replication afide, and The 4th realledged that the plaintiff ought to have accepted of the 10/. confeffed to be in the defendant's hands unadminiftered, and to have prayed judgment for the fame, and affets in futuro quando acciderint, or ought to have replied fingly, that defendants had affets in their hands ultra the 10l. and to have gone to iffue thereupon, whereupon the court made a rule to fhew caufe why the fourth replication fhould not be fet afide with cofts. 11. old book Upon fhewing caufe, I infifted that the replication was a Raft. Ent. good one, founded in truth, juftice and good reafon; that the 323. a. pl. defendant having acknowledged he had 10. in his hands un- of Entr. 59. adminiftered, the plaintiff had an immediate right to have judg- a. ment for that fum in part of his debt, and to reply and fay further that the defendant had affets ultra that iol. fufficient to fatisfy the refidue of the debt, and cited the two entries in the margin exactly in the point; and of that opinion was the court, and without hearing my brother Jephjon fully, who was on the fame fide with me, the court called upon my brother Burland, asking him, what he had to fay in fupport of the rule, but he feemed to give it up; whereupon the court declared the fourth replication was a very good one in every' respect, ed in the name of a parish which was levied temp. Anna regina. refpect, and faid, that if it had been doubtful whether it was fo or not, they would not have determined that matter upon a motion, but would have put the defendant to demur to it. The rule was difcharged with cofts, Lord commiffioner Bathurft abfent. Bohoun and others Plaintiffs, and Burton and others. Afine amend- SERJEANT Burland moved, that a fine of lands levied in the reign of Queen Anne might be amended by a deed of marriage fettlement (on the behalf of one John Smith, tenant in tail under that fettlement) by altering the name of a parish in the fine from Coxley to Corley, upon reading of the deed, the indenture of the fine, and an affidavit that there was no fuch parish as Coxley in the county where the lands are. The court ordered the fine to be amended, without making any rule upon any person · to fhew cause. An attorney having fued by his attach ment of privilege, was non fuited, and taken upon a ca. fa. returnable on a general return, and held well enough. Ferrot an Attorney verfus Hele. C. B. THE plaintiff brought an action against the defendant, and fued by his writ of attachment of privilege, which was (according to the courfe of the court) returnable upon a day certain, the plaintiff became non-fuited, and was taken, and in cuftody upon a capias ad fatisfaciendum, (for the cofts upon the judgment of non-fuit) returnable upon a general return, whereupon ferjeant Nares for the plaintiff moved to fet afide the Ca. Sa. infifting that it was irregular, because not returnable upon a day certain, and had a rule to fhew caufe; at the fame time ferjeant Burland for the defendant moved, that the return of the Ca. Sa. might be amended, and had alfo a rule to fhew caufe: upon fhewing caufe upon both these rules at the fame time, the court were clearly of opinion, that the Ca. Sa. was well enough, the plaintiff being non-fuited had no day in court, nor was he entitled to any privilege to have the Ca. Sa. returnable on a day certain, that he being non-fuited feemed to have abufed his privilege; befides, it was faid by Yates Juftice, and agreed by the court, that you cannot take any advantage of the irregularity of procefs, without having it returned, and before the court, which in this cafe it was not; that the court in this cafe would not, on a motion to have the writ returned, have made any rule for that purpofe. The reafon why procefs both for and against an attorney is made returnable on a day certain, is becaufe of his daily attendance in court, but this at torney torney is out of court, and in cuftody in execution, has no day in court, and fo cannot attend, and therefore in this cafe he lofes his privilege to have this procefs against him returnable on a day certain; fo the writ is well enough, and there is no occafion to amend it. The court difcharged both the rules. Abfente Lord Commiffioner Bathurst. to, and not juftifying, are as no bail, and Nota. It was laid down as a rule by the court, that when Bail excepted bail above is excepted against, and cannot justify themfelves, they are confidered as no bail, and therefore cannot render the defendant to prison: but other fresh bail may be put in, and before any exception taken to them, they may render him to prifon in discharge of themfelves. Per totam curiam. Day an Attorney verfus Buller. C. B. cannot render defendant to the Fleet. the devil, actionable. A CTION for flandering the plaintiff in his profeffion of Slander. an attorney, by faying of him thefe words-What does he He is no more pretend to be a lawyer? He is no more a lawyer than the devil! a lawyer than Verdict for the plaintiff. And now Serjeant Davy moved an ar- spoken of an reft of judgment; alledging, that it was not actionable to fay of attorney, is an attorney he was no lawyer, any more than to fay of an apothecary that he was no phyfician; that it was no more neceffary for an attorney to be a lawyer, than for an apothecary to be a phyfician, But per curiam, to fay of an attorney, he is no lawyer, is a great reflection upon him, and means that he does not understand his bufinefs; befides, (they faid) an attorney mult have a competent knowledge of the law, or he cannot draw a common writ or declaration. And per Yates Juftice, the words are as great a flander upon the plaintiff, and as injurious to him, as any words poffibly can be. So the ferjeant took nothing by his motion, and plaintiff had judgment. in actions up IN N an action upon the ftatute against bribery, there was a ver- A new trial is dict for the defendant; and now Serjeant Forfter moved for a never granted new trial, as being against evidence. But per totam curiam, we on penal laws. [But fee Term Rep. K. B. vol. 4, p. 753. vol. 5, p. 19: & vol. 6, p. 638.] never grant new trials in actions on penal laws; and it has been fo held for more than fifty years paft. The court condemned the cafe in 2 Keb. 226. If the propri etor of a mezzotinto or other print will intitle himself to the benefit of the ftat. 8 Geo. 2. cap. 33. and fecure 66 his property, the day of the first publ fbing thereof on the plate, and print the fame on the print. Sayer qui tam, &c. verfus Dicey & al'. C. B. AN action upon the flat. 8 Geo. 2. c. 13. fect. 1. against the defendants was brought to recover the penalty given by that ftatute, for copying and felling a print of the King of Denmark. The ftatute enacts, (amongst other things) "That every person who fhall invent and defign, engrave, etch, or "work in mezzotinto or chiaro ofcuro, any hiftorical or other prints, fhall have the fole right of printing the fame for "fourteen years, to commence from the day of the first publishing thereof, which fhall be truly engraved with the name of the proprietor on each plate, and printed on every fuch print or prints; and if any other perfon fhall copy and fell, in the "whole or in part, by varying, adding to, or diminishing from "the main defign, or fhall reprint or import for fale any fuch prints, without the confent of the proprietor in writing, figned in the prefence of two witneffes, &c. (fee the ftatute) "fuch offender fhall forfeit the plates, and all fheets fo printed, "to the proprietors of fuch original prints, who fhall forthwith deftroy and damaík the fame; and every fuch offender shall "forfeit 55. for every print found in his cuftody, contrary to "the faid act; one moiety to the King's majefty, and the other moiety to any perfon who fhall fue for the fame." By the 2d fect." It fhall be lawful for any perfon who fhall purchase any 66 66 66 66 plates for printing from the original proprietors, to reprint "from the faid plates." The defendants pleaded the general iffue: and at the trial, before Lord Chief Justice Wilmot in this term, the plaintiff proved, that Mr. Houfetown, a most excellent artift in mezzotinto or chiaro ofcuro, fcraped a plate (in that manner) from a picture of the King of Denmark painted by the celebrated Mrs. Angelica; that the plaintiff purchased the plate of the proprietor thereof, and that the defendants had copied and fold the fame. The name of the proprietor of the plaintiff's plate, and the year of our Lord wherein the fame was published, was engraved thereon, and printed on his prints; but the day of the month of the first publishing thereof, was not engraved on his plate or printed on his prints, and thereupon it was objected for the defendants, that the plaintiff could not recover, because he had not complied with the act of parliament. This point was referved for the opinion of the court; and now it was faid by Serjeant Whitaker for the plaintiff, that the ftatute did not require the day of firft publishing the print to be printed thereon. But |