Superior Courts: K. B. Practice Court; Common Pleas; Exchequer.

the demurrer, said that the appellant was on the same footing with the respondents, meaning clearly that he was liable to all the rules to which other suitors submitted, 'and the decision in the case of the Columbian Government v. Rothschild went on the same view.

The orders of the Courts below were affirmed, with costs.

The King of Spain v. Hullet & Co., 19th and 20th of August, 1833

King's Bench Practice Court.

BAIL.-NOTICE OF JUSTIFICATION.

11

that the defendant had been summoned to answer the plaintiff in an action "on the case," and then declared "on promises."

Barnewall supported the demurrer, and contended, that since the passing of the Uniformity of Process Act, the 2 & 3 W. 4. c. 39, an action" on promises" was a new form of action, and consequently different from an action "on the case;" he referred to the first form given in the schedule in the act. There was consequently a variance between the form of action stated in the process, and the form in which the plaintiff declared. He cited King v. Skiffington, in which the Court of Exche

quer held that " a writ of summons being to
answer the plaintiffin an action of trespass
on the case,' followed by a declaration in as-
sumpsit, is irregular, and may be set aside."
Taunton, J.-The action
on promises" is
an action "on the case.” There is nothing in
the objection.

66

The rules of T. T. \ W. 4., as to notice of justification, do not apply to country bail. In this case country bail had been filed at the Judge's chambers on the 6th of May. Notice of justification was given on the same day for the 8th. It was objected, when the bail came up to justify, that four days' notice of justification had not been given, as required by Judgment for the plaintiff-Wilson v. Prime, the rules of Trinity Term, 1 W. 4., and there-T. T. 1833. K. B. P. C. fore that they could not pass.

Patteson, J. was of opinion that the rule referred to only applied to cases where the bail were put in and justified at the time of putting in. Here the bail had not been put in and justified at the same time, and therefore the rule did not apply.

Bail justified.-Smith's bail, T. T. 1833. K. B. P. C.

SETTING OFF JUDGMENTS.-CAPTAIN AND

OWNERS.-VERDICT.

The amount of a verdict cannot be set off against that of a judgment.

Common Pleas.

RESCUE. SHERIFF'S RETURN.-BAILIFF.

The Court will grant an attachment absolute in the first instance against rescuers, where the sheriff returns a rescue from his bailiff. In this case the Sheriff returned, that having made his warrant to his bailiff to take the defendant, the bailiff took him accordingly, and Application to set off judgments. In this kept him until A. B. and certain other persons case the plaintiff in the first action had reco-rescued him out of the bailiff's custody. vered against his owners a sum of 1147. 88, and for that amount had signed judgment and issued execution. The money was levied, and in the hands of the sheriff, with notice to retain it. In the second action, which was by the owners against the captain, a verdict was found in favour of the owners for 1437. 158.4d. A rule nisi for a new trial was, however, obtained in the Court of Exchequer, in which the action was brought, and was still pending. The present application therefore was to set off the two amounts against each other.

Patteson, J., was of opinion, that as the owners had not obtained a judgment, the present application could not be sustained.

Rule discharged, with costs.-Garrick v. Jones and others-Jones and others v. Garrick, T. T. 1833. K. B. P. C.

DEMURRER.-PROOFS.-UNIFORMITY OF
PROCESS ACT.

It is no ground of demurrer that the decla-
ration, in setting out the process, states the
action to be in case, and then declares on
promises, notwithstanding the Uniformity
of Process Act.

Demurrer to a declaration. In this case the declaration, in setting out the process, alleged

f 1 Simon, 94.

Wilde, Serjt., moved for a rule absolute in the first instance for an attachment against the rescuers, on the authority of Sir W. Jones, 197, cited in Com. Dig. Rescous, D. 4.

The Court, on that authority, granted the rule accordingly.

Rule granted.-Gobby v. Dewes, T. T. 1833. Com. Pl.

Court of Exchequer.. INTERROGATORIES.-WITNESSES' EXPENCES.

-COMMISSION.

Since the 1 W. 4. c. 22, it is discretionary with the Court whether they will allow the expences of foreign witnesses brought over for the purposes of a cause, or only the costs of a commission.

This was an action against the defendant for the breach of an agreement in not procuring for the plaintiff a situation abroad, and for the expences the plaintiff was put to in removing himself and family, and returning. The jury gave 5007. damages. Two witnesses, sons of

a 1 Dowl. Prac. Cas. 686.

12

Superior Courts: Exchequer.-Sittings of the Master of the Rolls.

the plaintiff, had been brought from Barbadoes for the purpose of proving the plaintiff's case. They were sworn to be essential. The master, in taxing costs, had allowed the expences of their journey here and back, and during their stay here, amounting altogether to 3801.

SITTINGS OF THE MASTER OF
THE ROLLS,

IN AND AFTER MICHAELMAS TERM, 1833.

Richards having obtained a rule nisi for reviewing the master's report, and for disallow. The Sittings will take place in the Mornings at ing the expences of the witnesses' voyage here and back

Erle shewed cause, and referred to Tremain v. Barrett, a where it was held that if a witness is bona fide sent for from a foreign country,

Ten o' Clock.

for the sake of his testimony in an intended Monday, November 4-
action, though the writ is not sued out till
after his arrival, the plaintiff is entitled to the
costs of bringing him over, his expences here,
and the costs of his return.

Lord Lyndhurst, C. B.-Would it have been safe to examine those witnesses under a commission?

Erle. The whole case rested upon those two witnesses. Prudence might require that they should be brought over. The 1 W. 4. c. 22, gives the Court power to examine witnesses in any of his majesty's foreign possessions; but the act is not obligatory: it is optional with the party whether he shall apply to the Court or not. The party in the wrong ought to indemnify the other side.

Richards, in support of the rule. The expences of commissions under that act are in the discretion of the Court. The affidavits do not shew for what purpose the witnesses were brought over. Bringing over two witnesses, and keeping them here from November to May, could not be material. Both could not be wanted.

Tuesday
Wednesday
Thursday -

Friday

Saturday
Monday
Tuesday
Wednesday
Thursday -

Lord Lyndhurst, C. B.-A party having no power to compel the attendance of witnesses Friday abroad, to prevent injustice, the 13 G. 3. c. 63, gave the Court power to issue a commission for the examination of witnesses in India, and the 1 W. 4. c. 22, has extended that power over all his majesty's foreign possessions. The Saturday master has exercised no discretion in this case, Monday thinking himself bound by the cases. It ap- Tuesday pears to me, that it is for the discretion of the Wednesday Court in each particular case. But we will Thursday consult with the Judges of the other Courts, and if we are of opinion that it will depend upon the facts of each particular case, we will refer it back to the master to inquire. Vaughan, B.-There is no provision in the Friday act altering the jurisdiction or discretion of the Court. In a late case in the King's Bench, the master allowed the costs; but the question is now before Mr. Justice Parke.

Upon a subsequent day, Vaughan, B, who tried the cause, expressing his opinion that it was a case in which the witnesses were properly brought over, the master's report was confirmed.

M'Alpine v. Coles, T. T. 1833. Excheq.

a 6 Taunt. 89.

Saturday
Monday

At Westminster.-General Petitions, and Petitions and Further Directions by Consent.

At Westminster.

Causes, Further Directions, and Ex

6

ceptions in the General Paper.

8

At Westminster. Causes, Further Directions, and Petitions by Consent; and Causes, Further Directions, and Exceptions, in the General Paper.

Causes, Further Di

9 At Westminster.

11

12

13

14.

15<

16

18

19

20

21

22

23

rections, and Ex

ceptions, in the General Paper. At Westminster. Causes, Further Directions, and Petitions by Consent; and Causes, Further Directions, and Exceptions, in the General Paper.

At Westminster.

Causes, Further Di

rections, and Ex

ceptions, in the Ge

neral Paper.

[At Westminster. Causes, Further Directions, and Petitions by Consent; and Causes, Further Directions, and Exceptions, in the General Paper.

At Westminster.

Causes, Further Di

rections, and Ex

ceptions, in the General Paper.

At the Rolls.-At 10
o'clock, to swear in
Solicitors, and Ge-
neral Petitions.

At the Rolls.-Short
Causes.

Places appointed for the Trial of Issues.

At the Rolls.-Causes,
Further Directions,
and Exceptions, in
the General Paper.

At Preston, on Tuesday, the 14th of January, 1834, for the Northern Division.

At Liverpool, on Wednesday, the 15th of January, for West Derby Hundred.

At Manchester, on Thursday, the 16th of January, for Salford Hundred.

Inquiries and Issues from the Superior Courts,

Friday in each Week, during the Seals-Fur-in actions for demands under 20., pursuant to

At Liverpool, on Wednesday, the 20th of November, for West Derby Hundred.

At Manchester, on Thursday, the 21st of November, for Salford Hundred.

At Preston, on Tuesday, the 17th of December, for the Northern Division, and West Derby Hundred.

At Manchester, on Thursday, the 19th of At Manchester, on Thursday, the 19th of December, for Salford Hundred.

a See Vol. 6. p. 494, for the places appointed in Derbyshire, Nottingham, Northumberland, and Yorkshire.

the late act, for the Further Amendment of the
Law, and the Better Advancement of Justice,
may be tried at any of the above places, being
entered in the paper at the Sheriff's Office in
Preston, on the Monday preceding each Court.
The Court to begin at ten o'clock in the
forenoon each day.

EDMUND LODge,
Acting Under-Sheriff, for
WILLIAM ROWSON, Esq., Under Sheriff.
Sheriff's Office, Preston,
22nd Oct. 1833.

E. CHESTER, Staple Inn,
London Deputy.

14

Places appointed for Trial of Issues.-Answers to Queries.-Queries.

Provided that the writs commanding the Sheriff to try the issues be delivered at the Under sheriff's Office in Exeter four clear days before the Court-day on which the same are to be tried. HEN. W. FORD Under-sheriff.

Dated Under-sheriff's Office, Exeter, Oct. 21, 1833,

[We think much credit is due to the Undersheriffs in general for the prompt attention which they have paid to the interests of the suitors, by the appointment of Monthly Courts; and in Lancashire, it will be observed, where the business is unusually extensive, the Undersheriff incurs the expense of appointing barristers as assessors.-ED.]

Law of Property and Conveyancing.

1.EASE.-EXECUTORS.

P. 463.

If the lease was for years, it would go to the executors, because personalty; if for lives, the executors would take it under the statute of Charles the Second.

BARRING DOWER. P. 464.

Ω.

The clause inquired for seems to be section 77, and the three following, 3 & 4 W. 4, c. 74.

Ω.

[See the "Commentaries on the Dower Act." Ed]

ANSWERS TO QUERIES.

QUERIES.

Law of Landlord and Tenant.

EXECUTION.-RENT. P. 462.

1. Before the removal of goods, the party at whose suit the execution is sued out shall pay the landlord such sums as shall be due for rent, providing it does not amount to more than one year's rent; and the sheriff can levy and pay to the plaintiff as well the money so paid for rent as the execution money; see 8 Anne, c. 14. But notice to the sheriff must be given in order to subject him to an action; and unless the rent be paid the sheriff must quit; and if he does not quit, a special action on the case lies against him after notice of the rent due. See 2 Wilson, 141. R. C. S.

super

2. Goods in the custody of the law cannot be distrained for rent. The sheriff being in possession, under execution, a distress vening is bad. By the statute 8 Anne, c. 14, 8. 1, the sheriff is bound to pay to the landlord only the rent (not exceeding a year) due at the time of the levy.

RENT IN ADVANCE. P. 463.

Ω.

Law of Landlord and Tenant.

REPLEVIN.

A. distrains on the goods of B. for rent in arrear, and retains possession till the sixth day, when he appraises and sells them, but without having first searched the sheriff's office to ascertain whether a replevy had been entered; B. had given the usual bond to the sheriff's deputy (the distress being made in the country) in the morning of the sixth day, but the bailiff did not appear with the warrant till late in the evening of the sixth day, the goods having been then all sold. Can A. justify such sale? M. J.

SUB-LESSEE'S LIABILITY.-MORTGAGE.

A. leases certain property to B. at 50%. a year; B. leases the same to C. at 401. a year; and C., after underleasing them to other parties at 807. a year, mortgages them to D., who calls upon and receives from B. the 107. a year, and pays 507. rent to A.; C.'s lessees quit the premises, and A. finding nothing left to distrain on compels B. to pay 127. 10s., the quarter's rent; C. is insolvent. Can B. compel D. to pay 107., a quarter's rent, D. being mortgagee, and having received the quarter's rent from C.'s lessees on their leaving?

E. S.

Law of Property and Conveyancing.

FREEHOLD TITLE.

Since the statute 3 & 4 W. 4. c. 27, (§§ 2 & 24) and after the last day of the present year, will a purchaser of a freehold estate be bound to accept a 20 years' title, in the same manner as heretofore he has been bound to accept a 60 years' title?

A CONSTANT READER.

MORTGAGE.-SALE.-DAMAGES.

A., owner of an estate in mortgage to B. for 25001., sells it to C. for 40007., to be paid in equal portions, with interest in January, July, December, and June, on payment of which

Queries.

J. S.

15

specified portions of the estate were to be con- | Uniformity of Process Act, directs that the veyed. The agreement states, that in default writs for the commencement of actions issued in in payment the agreement is to he void, and A. pursuance of that act, are to be executed within is not to be compelled to perform it in law or four calendar months from the date thereof, equity; that it shall not be necessary for A. to and not afterwards, but nothing is stated in the tender any conveyance to C., the time appointed 3 & 4 W. 4. c. 67. Writs of execution issued for payment being considered the essence of under the old practice were held not to be the agreement, and in default the agreement is good if they were not made returnable in the to be void, and any loss or damage sustained by next term after the issuing thereof. C. in consequence is not to be recoverable in law or equity. The first 1000l. was not paid until after the second was due, C. not being able to pay it before. The times appointed for payment of the balance have gone by, and A., in consequence of not being able to pay B's there remains a privity of estate between the balance, through C.'s default, has been threat-lessor and lessee, and debt where the privity of ened by B. with a foreclosure. What remedy has 4. against C. for the interest on the purchase money, and the loss which he will sustain by B.'s foreclosure?

Practice.

ISSUES UNDER LAW AMENDMENT ACT.

Z.

In the form of the writ of issue to the sheriff, under the late act of 3 & 4 W. 4, c. 42, in the number for 12th October, p. 452, I observe two blanks, with no explanation given as to the dates to be inserted therein. Probably some of your correspondents can inform me the correct mode of supplying those dates. In the first, whether to insert the date of the issuing of the writ, or of filing the declaration; in the second, whether it should be the date of the appearance or the day of filing the plea. A diversity of opinion appears to exist among practitioners upon these points.

EXECUTION.-SCI. FA.

A. L.

Writ of inquiry executed on the 14th, final judgment signed on the 22d, and ca sa. issued on the 27th of June 1832, returnable on the

2d of November; defendant not being taken, an alias ca. sa. was issued on the 31st of December, returnable on the 11th of January 1833; this writ expired without a caption, and no writ has been issued since, neither has the sheriff been required to return the ca. sa. or the alias. Can the plaintiff, on procuring at the present time a return to the ca. a., issue a pluries without a sci. fa.?

EXECUTION, 3 & 4 W. 4. c. 67.

S.

When will a writ of execution, issued under the authority of 3 & 4 W. 4. c. 67. § 2, be considered out of force? The section cited authorizes the testing of writs of execution on the day they are issued, and to be made returnable immediately after execution thereof; but the act is quite silent as to when they are to be out of force, or considered to have run their length, so as to require the issuing of a fresh writ of execution. The act of 2 W. 4. c. 39, called the

REMEDY AFTER ASSIGNMENT.
It is said that covenant lies in all cases whilst

estate is gone and privity of contract only re-
by assignment by the lessee. Doug. 736;
mains, and that the privity of estate is destroyed
3 Wils. 25. But in Noy's Max. 91; Cro. Car.
418, it is stated that if a lessor receive rent of
an assignee, knowing of the assignment, he has
made his election, and shall not afterwards have
debt against the lessee, but he may have cove-
nunt, which being a personal engagement is
not waived by the assignment. Will debt or
covenant, and if either, which, lie under these
circumstances, or is the lessee discharged?
J. L.

NEW RULE TO PLEAD.-JUDGMENT.

Writ of summons served on the 12th of February, appearance entered sec. stat. on the 12th, and declaration filed on the 27th of April, notice of declaration left and rule to plead given on the 6th of May; defendant has not pleaded, neither has the plaintiff signed judgment. Can the plaintiff now sign judg ment without giving a fresh rule to plead; and if it is necessary, can a rule be given before the 24th of October? S.

UNIFORMITY OF PROCESS AMENDMENT ACT.

the uniformity of process (2 W. 4. c. 39), and Referring to the first section of the act for the first section of 3 & 4 W. 4. c. 67, can any writ of summons be now legally issued out of either of the superior courts, other than into the county of Middlesex from the Court of King's Bench and are not all such writs bad which have been issued since the date of the latter act (28th August last) into other counties than that from the King's Bench, and into all the coun◄ ties from the two other superior courts? and are they not liable to be set aside upon summons before a Judge?

Common Law.

INFANT.-LIABILITY.

S. T.