a fixed sum of money, or in the nature of a debt, or on a guarantee, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque, or note, the plaintiff shall be at liberty to make upon the writ of summons and copy thereof a special indorsement of the particulars of his claim, in the form contained in the Schedule (A) to this Act annexed, marked Number 4, or to the like effect; and when a writ of summons has been indorsed in the special form hereinbefore mentioned, the indorsement shall be considered as particulars of demand, and no further or other particulars of demand need be delivered, unless ordered by the Court or a Judge." Where the plaintiff has complied with this section, he is entitled, under the 27th section, in case of the non-appearance of the defendant, and upon observing certain requisites there mentioned, at once to sign final judgment. Now, this special indorsement is not for "a liquidated claim," for the plaintiff had no right to claim the expenses of noting. It does not appear that the instrument is a foreign bill. The Court will not allow the expense of noting to be recovered against the acceptor, unless it be laid as special damage in the declaration (a).— Secondly, the plaintiff could not sign judgment after the defendant had entered an appearance: 15 & 16 Vict. c. 76, s. 29.—He also contended, that, upon the facts disclosed in the affidavits, the plaintiff was not entitled to sign judgment, inasmuch as proceedings for a compromise were at that time going on.

The Court then called upon

Doyle, in support of the rule, who contended that the writ was indorsed for a claim in respect of the balance of a liquidated demand.

(a) Hobbs v. Christmas, cited in Byles on Bills, p. 203, n.; Kendrick v. Lomax, 2 C. & J. 405.

1854.

ROGERS

V.

HUNT.

1854.

ROGERS

V.

HUNT.

PARKE, B.-It should appear upon the face of the indorsement itself that the claim is for a liquidated demand The plaintiff had no right, under the 27th section of the statute, to add a claim for the expenses of noting. He could not recover these expenses by this mode of proceeding. The indorsement must, therefore, be treated as a nullity, and the plaintiff must declare. The judgment and execution being irregular, my Brother Martin's order was right, and this rule must be discharged.

POLLOCK, C. B., ALDERSON, B., and MARTIN, B., concurred.

Rule discharged.

Nov. 25.

TEMPANY (a Pauper) v. RIGBY and Others.

A plaintiff can- HAWKINS had obtained a rule, calling on the plaintiff'

not counter

mand no

tice of trial

after the cause

a remanet.

to shew cause why he should not pay to the defendants the costs of the day for not proceeding to trial, in pursuance of nohas been made tice; and why all further proceedings should not be stayed until such costs should be paid.-It appeared that the plaintiff was a pauper, and that issue was joined in the cause on the 6th of June last; that notice was then given for the trial of the cause, at the Middlesex Sittings after last Trinity Term. The defendants delivered briefs to counsel. The cause was set down, but was low in the list in consequence of which it was not reached, and was made a remanet to the first Sittings in the present Term. On the 30th of October, the defendants' attorney received a notice from the plaintiff's attorney, to the effect that he had withdrawn the record and should not proceed to trial at the forthcoming sittings, together with another notice, that the plaintiff would proceed to trial at the Sittings in the following Trinity Term.

Pearson shewed cause.-The first question is, whether the 122nd rule of the New Rules of Hilary Term, 1853, applies to this case. That rule orders, that, "where a pauper omits to proceed to trial pursuant to notice, he may be called upon by a rule to shew cause why he should not pay costs, though he has not been dispaupered, and why all further proceedings should not be stayed until such costs shall be paid." There is no reason why a harder measure of justice should be dealt to a pauper than to a solvent plaintiff [Parke, B.-That rule applies only to the case where the plaintiff would be liable to costs if he had not been a pauper.] Secondly:-the notice that the plaintiff gave on the 30th of October amounted to a notice of countermand.

to

Hawkins in support of the rule.-A plaintiff cannot countermand his notice of trial after the cause has been made a remanet; and here the defendants have been put expense. [Martin, B.-The form of the notice is, "Take notice of trial for the Sittings within this present Term, or as the case may be."] The notice of trial given in this case had operated before the notice of the 30th of October.

The

PER CURIAM (a).-The rule must be absolute. plaintiff cannot countermand his notice of trial after the cause has been made a remanet.

1854.

TEMPANY

V.

RIGBY.

1854.

Nov. 16.

Under the

51st section

of the Com

mon Law Procedure Act,

Vict. c. 125,

which empowers the Court to allow a

MARTIN v. HEMMING.

QUAIN moved for a rule calling on the plaintiff to shew cause why the defendant should not be at liberty to deliver the interrogatories in writing hereinafter mentioned to the (1854), 17 & 18 plaintiff, and why the plaintiff should not answer them. It was an action on a bill of exchange drawn by one Peter Martin upon and accepted by the defendant, and party to deli- indorsed by the drawer to the plaintiff. After the delivery of the declaration, and before plea pleaded, a summons had been taken out, before Martin, B., at Chambers, for leave to deliver certain interrogatories; but the parties were referred to the Court by the learned Judge. The interrogatories were as follows:

claration by the plaintiff, and before plea by the defendant) written interrogatories to his adversary

to be answered by him, the Court will not exercise that power by allowing a de

fendant to deliver interrogatories before plea, except under special

1. When was the bill in the declaration in this cause mentioned first indorsed to you?

2. Was it at the same or any other time actually delivered to you; and if the latter, when was it so delivered?

3. Was there any consideration for such indorsement to circumstances, you; if so, state what the consideration was, and when it stance, where passed; and, if there was a money consideration, how and the defendant when it was paid, and whether in gold, notes, or by cheque;

as, for in

makes out a

case of urgent and, if by cheque, on what bank and of what date?

necessity.

Quare, whe

ther the right to deliver interrogatories under that section, is confined to such cases as would

have afforded ground for a bill of disco

very in a Court of equity.

4. Did you at any time indorse away the bill to any other person or persons; and, if so, to whom, and when, and for what, if for what, if any, consideration?

5. Who was the holder of the bill when it became due? 6. Did you receive any notice of dishonour of the bill; and, if so, from whom, and when?

7. If you were not the holder of the bill when it became due, did you take it up; and, if so, when, or who took it up?

8. Was it taken up by Peter Martin; and, if so, when?

And did he deliver it to you after he had so taken it up; and, if so, when, and for what purpose?

9. Did you know that the defendant and his creditors have entered into a deed of arrangement for winding up his affairs, according to the Bankrupt Law Consolidation Act, 1849; if so, when did you first become acquainted with the fact that he had entered into such deed of arrangement, and how, and from whom did you learn such fact? 10. Did you know that the said deed was signed by Peter Martin and by the Borough Bank of Liverpool; and, if so, when did you first become acquainted with that fact, and by whom or in what way were you informed of it?

11. What is your calling and business, and where do you reside and carry on such business? What relation, if any, are you to Peter Martin? Are you in partnership with tim, or do you carry on business in the same house or office as Peter Martin?

The motion was founded on an affidavit of the defendant and his attorney in the form required by the 52nd section of the Act; and on another affidavit of the defendant, which stated that the plaintiff was the father of Peter Martin, the drawer of the bill; that they occupied one office; that he believed the drawer discounted the bill with the Borough Bank of Liverpool, who were the holders thereof when it became due, but was ignorant when or where or on what terms the indorsement was made to the plaintiff; that he believed, that, when the bill became due, it was taken up from the bank and paid by Peter Martin, who produced at the same time the notice of dishonour which had been sent by the bank to the plaintiff; that the defendant had no knowledge that the bill had been indorsed to the plaintiff, or that he was the holder thereof or a party thereto, until a day or two after it had been taken up from the bank, when the plaintiff applied to the defendant for payment of it; that, before the bill became due, the defendant executed a

1854.

MARTIN

v.

HEMMING.