Sidebilder
PDF
ePub

PENAL ACTION..

PRACTICE, NO. 17. PRACTICE in Chancery,

See COALS.

No. 4.

PEREMPTORY PAPER

PERFORMANCE.
See PLEADING, 9.
Performance specific, see AGREF-
MENT, 5.

PERJURY.

233

fendant, and deposited with the plaintiff conformably to the particulars of the building to the said agreement annexed, amongst which particulars, &c.; and also 198 referring to other terms in the agreement particularly set forth, by which it plainly appears, that the whole is not set out in the condition; the defendants then plead performance generally, to which the plaintiff demurs specially: Held, the plea is bad, for the deed ought to have been set out, that the court might see whether there were any negative or disjunctive covenants. Query, whether it might not have been sufficient for the defendants to have averred, that there were no negative or disjunctive covenants in the agreement. The Earl of Kerry v. Baxter, M. 44 Geo. III.

1. Pending an action at law the defendant files a bill against the plaintiff for a discovery of monies paid to him, praying also an injunction, which being obtained, is afterwards dissolved, upon the answer denying those payments. The plaintiff in equity then prosecutes an indictment against the plaintiff at law for perjury in his answer: Held, that the prosecutor is a good witness to prove the perjury, for he cannot make use of the conviction to his own advantage, either in the action at law or in the suit in equity. Rex v. Boston, H. 44 Geo. 111.

PLATE.

202

1. The act of selling a single piece of plate exceeding five penny-weights, does not constitute a trader within the stat. 31 Geo. II. C. 3, s. 6, so as to subject the party to a penalty for not taking out a licence. The King v. Buckle, M. 44 Geo. III. 49

PLEA, Demand of.
See PRACTICE, 6.

PLEADING.

1. To debt on bond, the defendants in their plea set out the condition for the performance of an agreement for building a house, &c. reciting the same in part, viz. that one of the defendants had covenanted to build, conformable to certain plans, signed by the plaintiff and the said de

106

2. On an insurance, by a British underwriter, during peace, against capture, &c. in general terms on a foreign ship, which is afterwards captured by one of his majesty's ships of war, upon hostilities breaking out between the two countries, the assured cannot recover for the loss even after peace is restored. The general terms, arrests of princes, must be understood with an exception of the nation to which the underwriter belongs. On a policy at 25 guineas per cent. to return 81. per cent. if the ship sailed from Cadiz with convoy for England, and 21. per cent. more for convoy from England to Flushing, or Iol. per cent. if with convoy for the voyage, and arrived, no part of the premium is returnable in case the ship be lost; for the words, and arrived, mean arrived at the ultimate terminus of the voyage. Kelner v. Le Mesurier, M. 44 Geo. III.

72

[blocks in formation]

to the testator for goods sold, after his death, promised to the plaintiff, executor, and executrix, as aforesaid, to pay, &c.; also, that the defendant accounted with the plaintiffs as executrix and executors as aforesaid, concerning money due to the plaintiff, executrix and executors, as aforesaid, and being thereupon found indebted to the plaintiffs, executrix and execu

tors

375

as aforesaid, promised to pay them, executor and execuirix, as aforesaid: also, containing a count for interest due to the plaintiffs as executrix and executors: Held, on error, that the count on an account stated, could not be joined with the counts for goods sold, &c. Q. whether a count upon promises with one as executor, can be joined with others on promises with the testator. Henshall v. Roberts, E. 4 Geo. 111. 5. Assumpsit, for that S. F. B. deceased, being indebted to the plaintiff at the time of his death, N. the wife of the defendant, before her intermarriage, in consideration thereof, and in consideration that the plaintiff, at her request, would forbear and give day of payment of the said debt, undertook, &c. : Held ill on special demurrer, for not stating either that N. or any other person was liable to be sued. A general forbearance, like the forbearance of an individual, is not a good consideration, unless there is somebody to be forborne. Jones v. Ashburnham and Wife, H. 44 Geo. III.

188

subsequent, viz. the 15th of March following, while the ship is still lying in the river. The ship sails after the 12th of February, and perform her voyage. The owner brings covenant for the freight, averring that the charter-party was indented, made, and concluded, after the day of the date, and after the 12th of February, and averring performance of all which on his part was possible to be performed: Held, upon special demurrer, that the plaintiff was not estopped from alleging that the deed was indented, made, and concluded, after the day it bears date. Concluded implies delivery of the deed. Semble. The covenant that the ship should sail before the 12th is not a condition precedent, but rather an independant covenant. Held also, that if it be a condition precedent in terms, yet it having become impossible at the time of making the deed, within the knowledge of both parties, it is no part of the real contract between them, and the plaintiff having performed the voyage, which is the substance of the contract, is entitled to his freight. Hall v. Cazenove, H. 44 Geo. III.

272

7. In debt on bond, with a profert, the plaintiff must produce the bond at the trial or be non-suited, notwithstanding it is in the hands of the defendant, and he, upon notice to produce it, neglects or refuses to do so. If it be lost out of the plaintiff's possession after declaring, he must amend his declaration, by 6. A charter-party, purport-declaring as on a lost bond. ing to be indented, made, and Smith v. Woodward, H. 44 Geo. concluded, the 6th day of Febru- III. ary, whereby it is agreed that the ship shall proceed from Deptford, on a voyage to Demarara, on or before the 12th of the same month, and by which the owner covenants that she shall proceed on her intended voyage on the day before mentioned, is actually executed by both parties on a day

212

8. Affidavit of debt against two defendants for a joint and separate debt; latitat against both; declaration against one only: Held irregular, and the declaration and subsequent proceedings set aside. Lewin v. Smith, H. 44 Geo. III. 285

9. An indictment stated that a

writ to arrest one B. W. issuing out of the weekly court of record of the town and county of the town of Poole, directed to one T. B. serjeant at mace of the said county and county of the town of Poole, was delivered to him to be executed, but did not state that T. B. was an officer for the execution of writs, or an officer of the court, and stated, that he having arrested the said B. W. one T. S. O., &c. did make an assault on the said T. B. in the execution of his office, and rescued the prisoner: Held, in arrest of judgment, that a serjeant at mace, is not ex vi termini an officer for the execution of writs, and his authority does not sufficiently appear on the indictment, wherefore the rescue appears to be lawful, being in defence of liberty. Rex v. Osmer, T. 44 Geo. III.

555

10. Semble, If a demandant in a writ of right, count upon the seisin of his ancestor in his demesne, as of fee, omitting and of right, it is bad. Held on error, both by the Court of Common Pleas, and this Court, that if the demandant, in deducing his title through a female, describes her as sister and heir of T. G. and it appears upon the face of the count, that T. G. left a son W. G. who survived his aunt, it is fatal, because she could not be heir of T. G.; although it also appears, that upon failure of issue of IV. G. the issue of the sister of T. G. became his heirs. Dowland v. Slade, T. 44 Geo. III. 543

11. ACTION JOINT, where the payment is joint out of which the assumpsit arises, see ACTION, No. 4, or Osborn v. Harpur, T. 44 Geo. III.

411

12. DISCHARGE and SATISFACTION, not by less sum in satisfaction of a greater, without any thing else, see ACTION, No. 5, or Fetil v. Sutton, T. 44 Geo.III. 415 13. To found an action against the vendor of coals, not having obtained a coal-meter's ticket, for a penalty of sol. on the 19th

Geo. II. c. 35, s.11. the plaintiff need not proceed to convict the offenders before a justice of the peace, though that clause of the act contains the words "being thereof convicted by the oath of two credible witnesses before one or more justices," &c. For by the 21st clause, which enacts, that all penalties above 51. shall be recovered by action in the su-, perior courts, those words must be taken to apply only to the case of the 51. penalty upon the carter, imposed by the same 11th clause. Semble. A coal waggon is within the clause, though the act contains only the words cart or carts Peto 9. t. v. Hague, T. 44

Geo. III.

417

14. Of PLEADINGS in Actions for accepting Stock, see STOCK

JOBBING.

15. Of pleading in covenant by a feme sole, for not performing award made after she becomes Covert, see ACTION, No. 8.

16. The word until, in an indictment, may be inclusive of the day or terminus ad quem, if the context require it to be so understood. Semble. The King v. Inhabitantsof Gamlingay, 3 T. Rep. 513is over-ruled, so far as it decides the context cannot explain the meaning of the word from to be inclusive. Rex v. Stevens and Agnew, T. 44 Geo. III. 437

17. Of prout patet per recordum, applied to that, which is only quasi a record, see ACTION, 9.

18. Of trover by 3 assignees of a bankrupt, where a 4th has been removed, and no re-assignment made, see BANKRUPT, No. 7.

POOR, RELIEF and REMOVAL.

See SETTLEMENT. ASSUMPSIT,

2.

PRACTICE.

See AMENDMENT. COSTS. BAILBOND. See BAIL, and also Grant v. Fagan, M. 44 Geo. III.

12

[blocks in formation]

corpus by mistake, and an attach. ment afterwards issue against the late sheriff for not bringing in the body, this is irregular, as the Court can only look to him who made the return. But where the rule to bring in the body was had the 12th of November, and no objection made to the attachment till the 27th of January following, it was held that the party came too late. Rex v. Sheriff of Middlesex, H. 44 Geo. III.

286

1. Action for penalties for bri. bery: venue laid in York: Motion to change the venue to Hull, the plaintiff having some causes of action which arose in Hull, but being out of time to sue in a new action, and it having been his intention originally to proceed for the offences in Hull; Held, that the venue may be changed in a penal action, where the statute of limitations has run, notwith-mission that it was brought solely standing other causes of action in another county, which are still within time, but which the plaintiff agrees to abandon. Dover v. Maestaers, H. 44 Geo. III. 123 2. PEREMPTORY PAFER, MOtions for new trials 198

[blocks in formation]

8. To sue out execution, pending a writ of error for delay, the party must state positively an ad

for delay. It is not sufficient to shew that the defendant meant to harass and delay the plaintiff, unless it appear that he acknow. ledges he has no ground for his writ of error. Butterfield q. t. v. Windle, E. 44 Geo. III.

335

9. A writ of error may be sued out before final judgment is signed and it will be a stay of execu tion. Semble. "Where a writ of error is sued out, and the plaintiff will not sign judgment till after the return of the writ, in order to avoid the effect of it, and then sues out execution, the court will set the execution aside. Somerville v. White, E. 44 Geo. III.

336

10. A foreigner having obtained judgment in an action of assumpsit, and the defendant there. in having a cross action upon the case pending against the foreigner, for damages accruing out of the same transaction, the court permitted the latter to pay the debt on the former judgment into court, to abide the event of the suit then pending, but to be paid out immediately after the trial, he going to trial immediately A motion of the first impression. Pinto v. Hutchinson, E. 44 Geo. III.

938

11. Semble. If a trial be over in the afternoon, and a witness stay in the town till eleven o'clock the next morning, his home being distant only twelve miles, his

[blocks in formation]

14. If two or more defendants are charged in execution on a joint judgment, the discharge of one of them under the lord's act, not opposed by the plaintiff, is no ground for an application to discharge the other. Naden v. Paten, E. 44 Geo. III.

362

15. Two parties submitted to arbitration by bond, and agreed therein that the submission to the award should be made a rule of court, and afterwards, by a memorandum indorsed on the bond, after the time of making the award had expired, agreed that the time for an umpire to make his umpirage should be extended to a future day, but without expressly mentioning that this new submission should be made a rule of court: Held, that this memorandum was a virtual incorporation of all the terms of the bond not inconsistent therewith, and therefore must be taken as containing an agreement to make the submission a rule of court, under the statute 8 and 9 W. III. c. 15. The case of Jenkins v. Law, 8 Term Rep. 87, was over-ruled, upon consultation with the other courts. Evans v. Thompson, E. 44 Geo. III. 380

16. Semble, An attorney, who has drawn an agreement between

two parties, will be ordered, upon motion to the court, to give over to either of them a copy thereof, to the best of his power, when the same shall be requisite, upon payment of the costs thereof. Clarke v. Terrel, T. 44 Geo. III.

399

17. In three penal actions for bribery by the same plaintiff, against the same defendant, the court refused to consolidate them, there being forty instances of bribery declared upon in each action. In penal actions the court will rather require that the trial of each offence should be separated as much as possible, for the convenience of trial. Where there are actions in this court, and also in another court, between the same parties, this court will not impose terms concerning the actions in this court, in order to compel any thing to be done in the other actions; but application must be made to the court where they are brought. Benton v. Praed, T. 44 Geo. III.

423

18. A bill of Middlesex, returnable on Monday next after the morrow of the holy Trinity, was held irregular; but the rule to set aside the proceedings was enlarged, for the party to amend, upon payment of costs, and also upon specifying the amendment, in the rule nisi, notwithstanding the defendant was in custody. Anonymous, T. 44 Geo. III.

425

19. Where a cause is referred to an arbitrator, and the costs are to abide the event, and the arbitrator awards a specific performance of something to be done, which proves that the event, in fact, is in favour of the plaintiff, he is entitled to costs; although the arbitrator does not award a verdict to be entered in form. As, where in an action of trover for corn the arbitrator, instead of awarding damages and a verdict, awarded that the plaintiff should have a right of entering the de. fendant's barn, &c.-N. B. It seems, in this case, the costs were

« ForrigeFortsett »