point, and I disprove it by my evidence; I therefore submit, that the plaintiff cannot give further evidence on this point. Mr. Justice PATTESON.-The matter they mean on the part of the plaintiff to disprove is, that these goods were the property of Phillips, and not to shew that they were the property of the plaintiff. In the case of Rowe v. Brenton (a), a point of this kind arose, and there the Judges, after some hesitation, allowed the evidence to be given. I shall receive the evidence, but Mr. Kelly may move it. Mr. Phillips was called. He stated, that the plaintiff was in fact the owner of the goods, and that the plaintiff bought goods of him to sell at the shop in Holborn; but that the plaintiff sent him the proceeds of the goods sold there, and drew 21. a week, because he (Mr. P.) did not wish to excite envy in the minds of the other persons whom he employed. Sir J. Scarlett, in reply, contended, that, even admitting that Mr. Phillips was the real owner of the goods, yet, if the plaintiff was ostensibly the owner, and was allowed by Phillips to sell and dispose of them, that would give him such a qualified property in them as would enable him to maintain this action. Mr. Justice PATTESON (in summing up).-If the plaintiff was a mere servant of Phillips, the defendant will be entitled to the verdict; but if the goods were really the property of the plaintiff, or if, being the property of Phillips, he allowed the plaintiff, in his own name, to sell them and do what he pleased with them, in either of those cases, the plaintiff will be entitled to recover, if you are (a) 3 M. & R. 133, see the case of Knapp v. Haskall, ante, p. 590. 1831. WHITTINGHAM v. BLOXHAM. 1831. WHITTINGHAM 97. BLOXHAM. satisfied that the accident arose from the negligence of the defendant's servant. You will, therefore, say whether these goods were the property of the plaintiff; and if you do not think that they were the plaintiff's absolute property, as between him and Phillips, you will then consider whether the plaintiff was allowed by Phillips to deal with these goods as his own, and whether Phillips had given him a power of disposing of them; for, if so, I think that that would be a sufficient property in the plaintiff to enable him to maintain this action. Verdict for the defendant. The foreman of the Jury adding, "we think the plaintiff had no property in the wares, and on that ground we find for the defendant." Sir J. Scarlett, and Hutchinson, for the plaintiff. [Attornies-C. Lewis, and Newton & Herbert.] Hutchinson afterwards moved to set aside the verdict, as being against the direction of the learned Judge in point of law. But the Court refused a rule, as the amount claimed was under 201. PROMOTIONS. IN Easter Term, W. Walton, Esq., Barrister at Law, was appointed one of his Majesty's Counsel learned in the Law. In Trinity Term, W. F. Boteler, Esq., and J. A. F. Simpkinson, Esq., Barristers at Law, were appointed his Majesty's Counsel learned in the Law. APPENDIX. REGULÆ GENERALES (a). [Trinity Term, 1 Will. 4, 1831.] and justifying. 1. IT IS ORDERED, that a defendant may justify Bail, putting in bail at the same time at which they are put in, upon giving four days' notice for that purpose, before eleven o'clock in the morning, and exclusive of Sunday. That, if the plaintiff is desirous of time to inquire after the bail, and shall give one day's notice thereof as aforesaid to the defendant, his attorney or agent, as the case may be, before the time appointed for justification, stating therein what further time is required, such time not to exceed three days in the case of town bail, and six days in the case of country bail, then (unless the Court or a Judge shall otherwise order) the time for putting in and justifying bail shall be postponed accordingly, and all proceedings shall be stayed in the meantime (b). (a) These General Rules apply equally to the Courts of King's Bench, Common Pleas, and Exchequer, and make very considerable alterations in the practice of those Courts. It is, therefore, highly expedient that they should be in the hands of the profession as early as possible. They were promulgated when the concluding part of this volume was on the eve of publication. We have inserted them in it; as they would not, in all probability, be publish- (b) This and the four following REGULE GENERALES. Notice of bail. Affidavit to accompany the notice of bail. Excepting to bail. Changing bail. Declaration and paper to accompany it. 2. And it is further ordered, That every notice of bail shall, in addition to the descriptions of the bail, mention the street or place, and number (if any), where each of the bail resides, and all the streets or places, and numbers (if any), in which each of them has been resident at any time within the last six months, and whether he is a housekeeper or freeholder. 3. And it is further ordered, That, if the notice of bail shall be accompanied by an affidavit of each of the bail, according to the form hereto subjoined, and if the plaintiff afterwards except to such bail, he shall, if such bail are allowed, pay the costs of justification, and, if such bail are rejected, the defendants shall pay the costs of opposition, unless the Court or a Judge thereof shall otherwise order. 4. And it is further ordered, That, if the plaintiff shall not give one day's notice of exception to the bail by whom such affidavit shall have been made, the recognizance of such bail may be taken out of Court without other justification than such affidavit. 5. And it is further ordered, That the bail of whom notice shall be given, shall not be changed without leave of the Court, or a Judge. 6. And it is further ordered, That, with every declaration, if delivered, or with the notice of declaration, if filed, By the second rule, the residen- which will have the effect, in most cases, of saving the bail the trouble and annoyance of attending to justify, if a proper affidavit in the form prescribed (p. 606) accompanies the notice of bail, because, if the opposite party compels them to appear to justify, it is at the risk of paying the costs. containing counts in indebitatus assumpsit, or debt on simple contract, the plaintiff shall deliver full particulars of his demand under those counts, where such particulars can be comprised within three folios; and where the same cannot be comprised within three folios, he shall deliver such a statement of the nature of his claim, and the amount of the sum or balance which he claims to be due, as may be comprised within that number of folios. AND, to secure the delivery of particulars in all such cases, IT IS FURther ordered, that, if any declaration or notice shall be delivered without such particulars, or such statement as aforesaid, and a Judge shall afterwards order a delivery of particulars, the plaintiff shall not be allowed any costs in respect of any summons for the purpose of obtaining such order, or of the particulars he may afterwards deliver. AND that a copy of the particulars of the demand, and also particulars (if any) of the defendant's set off, shall be annexed by the plaintiff's attorney to every record, at the time it is entered with the Judge's Marshal (c). REGULE GENERALES. ing. 7. And it is further ordered, That, upon every declara- Time of pleadtion delivered or filed on or before the last day of any term, the defendant, whether in or out of any prison, shall be compellable to plead as of such term, without being entitled to any imparlance (d). 8. And it is further ordered, That no judgment of non pros shall be signed for want of a declaration, replication, or other subsequent pleading, until four days next after a demand thereof shall have been made, in writing, upon the plaintiff, his attorney, or agent, as the case may be. 9. And it is further ordered, That hereafter it shall not (c) As the particular or statement to be delivered with the declaration must not exceed three folios, it will in many cases be rather an abstract of the plaintiff's Non pros. Summons. |