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2. The defendant having been arrested on the 6th July, on the 14th a summons was taken out to stay proceedings upon payment of debt and costs. An order was thereupon made, "and that in default of payment forthwith, the plaintiff should be at liberty to sign final judgment." The costs were taxed, but no further step was taken under the order. Upon the 14th August, the plaintiff took an assignment of the bail-bond-on the 9th September, defendant died. Held, that the terms of the order did not entitle the plaintiff to the benefit of special bail. Isaac v. Richards,

94

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7. A defendant who had paid money into Court in lieu of bail, previous to the 1 & 2 Vict. c. 110 coming into operation, is not entitled, under an equitable construction of the 7th section, to have the money paid out to him. Harrison v. Dickinson, 6

8. The defendant having been arrested on mesne process, was out on bail on the 1st October, 1838. After that day, final judgment was signed, and on the 6th November, a ca. sa. to fix the bail was lodged at the Sheriff's Office, but before it was returnable, a motion was made to enter an exoneretur on the bail-piece. Held, that the bail were not entitled to relief under the 7th section of the 1 & 2 Vict. c. 110. Jackson v. Cooper, 5.

9. If a defendant is rendered by his bail, after the expiration of fourteen days from the service of the writ of summons on the bail, it is too late, aud under Reg. Gen. T. T., 3 Wm. 4, the Court cannot exercise any discretion, by allowing a render to be made subsequently, even on terms. Bird v. Atkins and Twynam, Bail of Atkins, Junr., 769

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1. Where a defendant has become bankrupt after action commenced, this Court will not stay proceedings, on the ground that the plaintiff has proved his debt under the fiat, but application should be made to the Court of Review, or the Great Seal. Ransford v. Barry, 807

2. Where, in trover, by the assignees of a bankrupt, issues were taken on the plaintiff's being possessed of the property as assignee, and on the estate of the bankrupt having paid 15s. in the pound under a second Commission, and the defendant succeeded on the first issue, and it appeared that the plaintiff, as assignee under the second Commission, had allowed the bankrupt to have the goods in his order and disposition; the defendant was held to be entitled to the costs of proving a third Commission, but not to those of proving that the bankrupt's estate produced 15s. in the pound after the certificate being granted under the second Commission. Butler, Assignee of Bakewell v. Hobson,

157

BENEFICE (CHARGING). 1. The defendant, a beneficed cler

BILL OF EXCHANGE. 879

gyman, demised two livings to the plaintiff, for a term of ninety-nine years, on trust, among other things, to pay 37001. previously borrowed by the defendant, of the plaintiff, the indenture not referring in any way to a warrant of attorney. On the same day, the defendant executed a warrant of attorney to the plaintiff, in the defeazance of which it was stated to be given as a collateral security for 3700l. and interest, "further secured by a grant and demise, bearing even date herewith, of the vicarages" in question. The money in question not being paid, the plaintiff signed judgment, and issued a sequestration. Held, on application, to set aside the warrant and subsequent proceedings, that it was not void as a charging of a benefice, within the meaning of the 13th Eliz. c. 20, s. 1, but that it was an independent security for a loan. Bendry v. Price, 753

2. On an application to set aside a warrant of attorney, pursuant to the 13 Eliz. c. 20, s. 1, on the ground of its amounting to a charging of a benefice, the Court will not look beyond the warrant to ascertain the intention of the parties, and therefore, will not read affidavits for that Bishop v. Hatch,

purpose.

BILL OF EXCHANGE.

See ACCEPTANCE.
PLEA, 16.

PLEA, (FRIVOLOUS).
PLEAS, (SEVERAL), 2.
REPLICATION, 2.

763

1. In an action on a bill or note, under a plea of "no notice of dishonour," the plaintiff must prove a distinct notice, mere knowledge is insufficient. Bird v. Legge, 814

2. And where such notice is not proved, the bill will not be evidence of an account stated, unless there is an admission of the money being due.

Ib.

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CERTIORARI.

See QUASHING WRIT.

A defendant in an indictment for a misdemeanor, surreptitiously obtained an acquittal, by not complying with the practice of the sessions, in giving notice of trial, and bringing on the indictment for trial, after disposing of the felonies, and this Court would not grant a certiorari, to remove the indictment, in order to set aside the verdict. Regina v. Unwin, 578

CERTIFICATE (OF COUNSEL). See PAUPER, 6.

CERTIFICATE (OF JUDGE).

See COSTS, 4, 10, 11, 13.
TAXATION, 5.

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make the instrument effectual. Richardson v. Daley and Rugglesford, 25

2. In order to render a cognovit valid, according to the provisions of 1 & 2 Vict. c. 110, s. 9, although the attorney acting for the defendant, may have been named by the plaintiff's attorney, it is no objection to the validity of the instrument, that the defendant adopts him, if he has a full opportunity of exercising his discretion as to the adoption; but if the circumstances are such as to preclude such an exercise of discretion, the cognovit is bad. Therefore, where a defendant was about to give a cognovit, and was unacquainted with any attorney, and at his request, the plaintiff's attorney sent his clerk for one, who came and acted in that capacity for the defendant, a request to that effect being written by the plaintiff's attorney in the margin of the cognovit, the Court set aside that instrument. Barnes v. Pendrey, 747

3. Where in a cognovit it was provided that judgment should not be entered up until default should be made in the due payment of the debt, (which it was subsequently declared should be paid by instalments) together with costs to be taxed by the Master as between attorney and client. Held, that the plaintiff was entitled to enter up judgment, on default being made in the payment, of one of the instalments, although he had not taxed his costs, but that the taxation must take place before the issuing of execution. Barrett v. Partington, 447

4. It is not requisite, under the 1 & 2 Vict. c. 110, s. 9, that the attorney of the defendant, in the attestation of a cognovit, should state himself to be an attorney named by the defendant; it is sufficient if he declares himself to be attorney for the defendant; nor need the attorney be originally named by the defendant: it is sufficient, if the latter adopts the

attorney named by the plaintiff. Oliver v. Woodruffe, 166

5. And if the nature and effect of the instrument be explained to the defendant, it is immaterial that it has not been read over to him, Ib.

6. An infant cannot bind himself by a cognovit, lb.

7. Where a cognovit had been attested on behalf of the defendant by an attorney, who accompanied the plaintiff's son to the defendant's residence, and who subsequently carried the instrument to the Queen's Bench Office to be filed, and there subscribed his name upon the back of it as the plaintiff's attorney's agent, the Court set aside the instrument under the 1 & 2 Vict. c. 110, ss. 9 & 10. Rice v. Linsted, 153

COLLUSION.

See ARREST, 4.

DETAINER, 2.

WARRANT (OF ATTORNEY), 2.

COLONIAL JUDGE.

See PLEA, 14.

COMBINATION LAWS. See MASTER AND SERVANT.

COMMISSIONER.

See INTERROGATORIES, 1.

COMMISSIONERS (OF LAND

TAX).

See LAND TAX (COLLECTOR).

COMMITMENT.

It is fatal in a warrant of commitment for a riot, under the 7 & 8 Geo. 4, c. 30, s. 8, to state that the defendants began to pull down and destroy, "in part," a dwelling-house. The 538 Queen v. Lowden and Others,

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