1819. The ATTORNEY GENERAL Arbuthnot, De Monte, and M'Taggart, as the attornies of the said James Murray. James Murray died in Scotland on or about the 10th day of October, 1814, having made a will, dated the and another. 7th day of September, 1813, and appointed the v. BEATSON defendants executors thereof, and the said defendants proved the said James Murray's will in the Prerogative Court of the Archbishop of Canterbury, on the 25th of November, 1814. Between the month of February, 1812, and the month of October, 1814, effects of the said William Hope, in India, to the value of 8000l. were collected and received as aforesaid, and remitted by the said Messrs. Arbuthnot, De Monte, and M⭑Taggart, by the orders of the said James Murray, from India, to Mr. Carstairs, the attorney and agent of and for the said James Murray, in England, and Mr. Carstairs remitted the said sum of 8000l. to the said James Murray in Scotland, The said James Murray in his life-time did retain the said sum of 20,000l. so remitted from India to England, and from England to Scotland, as aforesaid, to and for his own use and benefit, under and by virtue of the William Hope: and the said part of the residue of the personal estate and effects of the said William Hope, deceased. The said James Murray was a stranger in blood to the said William Hope. said will of the said sum of 20,000l. was If the Court should be of opinion upon the facts stated, that the said 20,000l. is subject to the 1819. The ATTORNEY GENERAL the legacy duty, then the verdict entered for the Crown was to stand for the sum of 30,000l.; but if the Court should be of a contrary opinion, then a verdict to be entered for the defendants. Either party to be at liberty to turn this special case into and another. a special verdict if the Court should think proper, Shepherd, for the Crown, relied upon the case of The Attorney General v. Cockerell (a). Campbell, for the defendant, endeavoured to distinguish the present case, as the special verdict found expressly, that the testator was domiciled in Madras, and administration was granted there: and Murray, who was domiciled in Scotland, had received the money, not as administrator, but as legatee; and that, although he took out administration here, it was not necessary that he should do so. In the case cited, General Duff having brought the assets to England, it became necessary that the other executor in England should prove the will here. The Court were of opinion that Murray was an administrator in fact and in law; and therefore, and because the testator's personal estate had been applied in England, they gave Judgment for the Crown. Application being made on the part of the defendant, to be permitted to turn the case into a special verdict, the Court refused it. (a) Ante, vol. i. p. 165. v. BEATSON VOL. VII. PP GREENWAY 1819. Monday, 21st June. only of a plaintiff's GREENWAY v. CARRINGTON *. If a small part THE plaintiff declared against defendant as the drawer of a bill of exchange, and also for goods sold and delivered. de mand be on a bill of exchange, and the bulk of the debt be for goods sold and delivered, for part of which the bill was given, the Court will not bring back the Richards having, on a former day, obtained a rule to change the venue upon the usual affidavit: Jones now moved to bring it back, upon venue (which the ground of the action being upon a bill of had been changed on the usual affidavit) exchange; and he cited Ward v. Coclough, (a) on the ground Rice v. Vinall, (b) Evans v. Weaver, (c) and Whitburn v. Staines, (d) in which last case the Court of Common Pleas held that the venue could not be changed on an award. of the action being brought upon a bill of exchange. [WOOD, Baron, said, that case was not in point, and expressed considerable doubt of it as a general proposition; adding, that in the cases there referred to, the whole of the demand may have been founded upon specialty: and he observed, that it would be most unreasonable to hold that the venue could not be changed where only a small part of the demand was founded on a bill of exchange.] • Ex relatione Mr. R. B. Comyn. It appeared by the particulars of the plaintiff's demand, that the sum claimed for goods sold and delivered was nearly treble the amount of the sum for which the bill had been drawn; and that the bill had in fact been given in part satisfaction of the original debt for the goods sold. Per Curiam.-This cause cannot be brought within the general rule, that the venue in an action on a bill of exchange cannot be changed. Here it clearly appears, that only a part (and a very inconsiderable part) of the sum sought to be recovered is due upon the bill; and that in point of fact the bill has been given upon the original demand, viz. for goods sold and delivered; so that this must be substantially considered as an action for goods sold and delivered. It is not enough to say that part of the demand arises upon a bill of exchange; otherwise a plaintiff, by inserting a count upon a bill, might defeat the defendant of his right to change the venue. Jones, therefore, took nothing by his motion.* Vide Baskerville v. Cooper, ante, vol. i. p. 374. 1819. GREENWAY V. CARRINGTON, 1819. IN THE EXCHEQUER CHAMBER. [Error from the Court of Exchequer.] Tuesday, 22d June. ARGUED AT SERJEANTS' INN. Coram ABBOTT, Lord Chief Justice, and Tuesday, 11th May. LANE and another v. CROCKETT. In an action THIS was an action brought against the Sheriff against a she ing goods seized under a fieri facias, riff, for remov. of Staffordshire, by the plaintiffs, who were the landlords of George Emery, for a removal of without paying goods &c. taken under a fieri facias on behalf the landlord a year's rent, un- of a judgment creditor, without paying the plain der the statute of 8th of Anne, tiffs a year's rent, according to the provision of plaintiff reco- the statute of the 8th Anne, ch. 14. wherein the vered a verdict, the Court refused a new trial, on the ground that the goods having been af On the trial, the Jury found a verdict for the hat plaintiffs, on the first count of the declaration. terwards re In turned, the plaintiff had not been damnified, because while they were in the custody of the law, the landlord could not distrain them. The want of an allegation in the declaration, that the sheriff had notice of rent due, is not the subject of a motion for a new trial, but should be moved in arrest of judgment. The Court will not permit a motion to be made in arrest of judgment, after the expiration of the first four days of the Term next after the trial of the cause, and a rule misi for a new trial has been disposed of. The motion should be made in the alternative in the first instance. The commou allegation of "the defendant well knowing the premises," in the declaration, will, after verdict, cure the omission of an averment, that the defendant had notice of rent being in arrear. So held on a writ of error founded on that objection. Quere, whether any other allegation of notice be necessary? |