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PREFACE.

As the 1th and 12th Volumes of BAYLY MOORE's Reports were not published when the early sheets were put to press, references have been given in the Table of Cases at the end of the volume to the cases contained in them, which are also reported in MR. BINGHAM'S Reports and in the Law Journal; and such cases as have not been noticed in the latter reports, are inserted in the Addenda.

In conclusion, it may not be unimportant, and may perhaps add to the value of this work, to observe, that upwards of 1000 cases exclusively reported in the LAW JOURNAL, are here abstracted.

INNER TEMPLE,

June 22nd, 1831.

A LIST OF THE ABBREVIATIONS

USED IN THIS DIGEST.

Abbreviations.

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Reporters.

Addams's Reports

Barnewall & Cresswell's Reports

Bingham's Reports

Bligh's Reports

Bligh's Reports, New Series}

Broderip & Bingham's Reports
J. Bayly Moore's Reports
Crown Cases Reserved

Campbell's Nisi Prius Reports
Carrington & Payne's Reports
Chitty's Reports

Cooke's Reports
Cresswell's Reports

Dodson's Reports

Dowling & Ryland's Reports

Dowling and Ryland's Nisi Prius Reports

Glyn & Jameson's Reports

Haggard's Reports

Jacob's Reports

Reports}

Jacob & Walker's Reports.

Kenyon's Reports

M'Cleland's Reports

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M'Cleland & Younge's Reports

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Maddock's Reports

Mad.

M. & R.

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M. & S.

M. & M.

M. & P. Phill.

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Manning & Ryland's Reports

Maule & Selwyn's Reports

Moody & Malkin's Nisi Prius Reports

Moore & Payne's Reports

Phillimore's Reports

Price's Reports

Russell's Reports

Ryan & Moody's Reports

Simons & Stuart's Reports}

Simons's Reports Starkie's Reports Taunton's Reports

Turner's Reports

Younge & Jervis's Reports

Courts.

Ecclesiastical.

King's Bench. Common Pleas.

House of Lords.

Common Pleas.
Common Pleas.

Exchequer Chamber.
K.B. & C.P.
K.B. & C.P.
King's Bench.

{In the Court for the Relief

of Insolvent Debtors.
Admiralty.

King's Bench.
King's Bench.
Bankruptcy.
Admiralty.

Chancery.

K.B. & Chancery.
Exchequer.

Exchequer.

Chancery.

King's Bench.
King's Bench.
K.B. & C.P.
Common Pleas.
Ecclesiastical.
Exchequer.
Chancery.

K.B. & C.P.

Chancery.

K.B. & C.P. Common Pleas.

Chancery.

Exchequer.

AN

ANALYTICAL DIGEST

OF THE

CASES REPORTED

IN THE

LAW JOURNAL,

From TRINITY TERM 1822, to MICHAELMAS TERM 1828:

AND OF

ALL THE CASES DECIDED OR PUBLISHED WITHIN THAT PERIOD,

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(b) Misnomer.

(C) TIME OF PLEADING.

(D) FORM AND REQUISITES of. (E) EVIDENCE.

(F) WHEN QUashed. (G) NEW TRIAL ON.

(A) OF SUIT.

When a plaintiff dies after a verdict, and after the day in bank, he is entitled to have judgment entered of the term subsequent to the verdict, even though the costs have not been taxed, as they are incident to the judgment, and may be taxed after the party's death. Parker v. Steers, 1 Ken. 378. DIGEST, 1822-1828.

If husband and wife bring a joint action for a debt due to the wife before marriage, and before judgment the wife die, the action will abate. Checchi and wife v. Powell, 5 Law J. K.B. 123, s. c. 5 B. & C. 253.

(B) PLEAS IN.

(a) Nonjoinder.

Where a plaintiff sued as executor, and defendant pleaded that the promises in the declaration were made jointly by him with the plaintiff :-Held, that this was in effect a plea in bar, and not a plea in abatement. Moffatt v. Van Mullingen, 2 Chit. Rep. 539.

The Court will not order a plaintiff to furnish a copy of an agreement, to enable the defendant to avail himself of the nonjoinder of co-contractors. Beale v. Bird, 2 D. & R. 419.

The nonjoinder of a secret partner cannot be pleaded in abatement. Mullett v. Hook, 1 M. & M. 88. [Tenterden]

B

2

(b) Misnomer.

ABATEMENT-ACCOMPLICE.

A plea in abatement, and not a plea in bar, is the proper mode of taking advantage of a misnomer in plaintiff's name. Jowett v. Charnock, 6 M. & S. 45.

If a defendant be arrested by a wrong christian name, and give a bail bond, the Court will not order it to be delivered up to be cancelled, but leave the defendant to his plea in abatement. Tritton v. Gardner, 3 Law J. C.P. 184.

Where a party has been served with process by a wrong christian name, the Court will not grant a rule to set aside the proceedings with costs; but if the party will not take a rule without costs, the Court will leave him to his plea in abatement. Lyon's case, 2 Law J. K.B. 38.

Where a defendant was arrested by the name of Stephen T. Silk, and signed a bail bond in the name of Stephen Thomas Silk, the Court ordered the bond to be cancelled, on his entering a common appearance; but observed, that in future they would leave the party to his plea in abatement. Lake v. Silk, 4 Law J. C.P. 67, s. c. 3 Bing. 296.

The Court will not set aside the service of a writ, because the writ does not contain the second christian name of the defendant, but will leave him to his plea in abatement. Davies's case, 2 Law J. K.B. 34.

A misnomer in the defendant's surname, must be pleaded in abatement, and is no ground for setting aside the writ and declaration. Sumner v. Betley, 4 Law J. C.P. 51.

Nor will the court set aside the proceedings on motion if there be a misnomer in non-bailable process, but will leave the defendant to his plea in abatement. Sarjant v. Gordon, 7 D. & R. 258.

Where, in an action of trespass, brought jointly against four defendants, one pleaded his misnomer in abatement; and, in conclusion, prayed judgment of the writ, and that the same might be quashed :Held, bad on general demurrer, as the misnomer only operates to abate the writ as to the party misnamed. Wade v. Stiff, 6 Law J. C.P. 10, s. c. 1 M. & P. 26.

(C) TIME OF PLEADING.

If a defendant, who resides in the country, (Stafford,) be served with notice of declaration, before the first day of term, he may plead in abatement within four days after his appearance has been entered. Kirby v. Hunt, 13 Price, 178, s. c. M'Clel. 65.

(D) FORM AND Requisites of.

Where a declaration is filed as of one term, and the defendant pleads in abatement in the next, the plea must be prefaced by a special imparlance. And this rule applies, even where the declaration is filed or delivered in vacation as of the preceding term. Woodthorp v. the Hundred of Lothingland, 5 Law J. K.B. 63.

A plea that A B, now living in the county of D, ought to have been a party in the suit, is a good plea in point of form; nor is it necessary to describe A B by his addition. Moon v. Lea, 2 Law J. Chanc.

171.

A plea in abatement in proceedings by bill in the K.B. concluding with a prayer that the declaration be quashed, is bad. Moffatt v. Van Mullingen, 2 Chit. 559.

So of misnomer of one of four defendants, praying that the writ may be quashed. Wade v. Stiff, 6 Law J. C.P. 10, s. c. 1 M. & P. 26, supra B. b.

(E) EVIDENCE.

To support a plea in abatement, the supposed joint contractor was called, who swore that he was not a partner with the defendants. His answer to a bill in Chancery, in which he swore that he was a partner, was received as evidence of the fact of partnership. Two witnesses also proved the fact of his being a partner; and the jury found a verdict for the defendants :-The Court held, that the answer ought not to have been received; and directed a new trial. Ewer v. Ambrose, 3 Law J. K.B. 115, s. c. 3 B. & C. 746, s. c. 5 D. & R. 629.

A plea of non-joinder in abatement, is not supported by evidence of a secret partnership, especially if the plaintiff be unacquainted with the fact. Stansfield v. Levy, 3 Stark. 8. [Abbott]

On a plea in abatement of the nonjoinder of A. B. as a defendant, his declarations made before action brought, are evidence in support of the plea. Clay v. Langslow, 1 M. & M. 45. [Abbott]

(F) WHEN QUAShed.

An informality in a plea in abatement is no ground to induce the Court to quash it on motion. Rer v. Cooke, 2 B. & C. 618, s. c. 4 D. & R. 114.

Where several persons, unknown to the plaintiff, are named in a plea of abatement, the Court will order the defendant to furnish particulars in writing of the places of residence and additions of the persons named; and for non-compliance with such order, will quash the plea. Newton v. Verbeke, 1 Y. & J.

257.

(G) NEW TRIAL ON.

The Court observed, that there was no instance of a new trial on a plea in abatement, not even on payment of costs. Shaw v. Hislop, 2 Law J. K.B. 168, s. c. 4 D. & R. 241.

But a new trial granted in Ewer v. Ambrose, 3 Law J. K.B. 115, s. c. 3 B. & C. 746, s. c. 5 D. & R. 629, supra, E.

ACCOMPLICE.

On counsel stating that it appears from the depositions taken before the magistrate, that there is not sufficient evidence without the aid of the testimony of an accomplice, his evidence will be admitted. Rex v. Barnard, 1 C. & P. 87. [Hullock]

A prisoner may be convicted on the evidence of an accomplice, even though it be unsupported in any material fact. Rer v. Barnard, 1 C. & P. 88. [Hullock]

If on the trial of A and B, the evidence of C, an accomplice, be confirmed as to A, but not as to B, the Jury may, if they believe the facts disclosed by C, convict B on his testimony only. Rex v. Dawber, 3 Stark. 34. [Bayley]

If an accomplice be charged with any other felony than that on the trial of which he is to be a witness, he will not, in general, be admitted as king's evi. dence. Memorandum, 2 C. & P. 411. [Park and Garrow]

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