stated that the defendant accepted the bill of exchange in writing, or that the acceptance of the same was in writing; and also for that it was stated that the defendant accepted the bill of exchange according to the usage and custom of merchants, and by the usage and custom of merchants an acceptance by parol without writing would have been sufficient, whereas by a certain act of parliament passed in the first and second years of the reign of King George the Fourth, the acceptance of the bill of exchange, to be valid, must be in writing. Jones, Serjt., in support of the demurrer, urged that the declaration ought to state all that the statute required. But

The Court held the declaration sufficient, and that there was nothing in the objection. Judgment for the plaintiff.

*530]

*MURRAY v. NICHOLS and Others.

May 10.

In an action on the case for a malicious prosecution, per quod plaintiff was falsely imprisoned, one of several defendants obtaining a verdict, is not entitled to his costs under 8 & 9 W. 3, c. 11, if a verdict pass against the others.

THE plaintiff had sued the defendants in case; and his declaration contained counts for a malicious prosecution; counts for a libel; and trover for a trunk. In the count for a malicious prosecution he had stated his imprisonment as a consequence and aggravation of the malicious charge.

A verdict was found for the plaintiff against some of the defendants, while others were acquitted, but the prothonotary having declined to allow them their costs,

Jones, Serjt., obtained a rule nisi to review his taxation; against which
Wilde, Serjt., was to have shown cause, but the Court called on

Jones to support his rule. At common law where a verdict was found against one of several defendants in an action of tort, the others who were acquitted had no claim for costs. To remedy this the statute 8 & 9 W. 3, c. 11, s. 1, gives costs to any of several defendants who obtain a verdict in actions of trespass, assault, false imprisonment, and ejectione firma. This statute, considering the reason of its passing, ought to be construed liberally, and with a view to the object, not the form, of the action in which a defendant may be engaged; for if it had been intended that the remedy should have been confined to the form of action, it would have been only necessary to specify the action of trespass, since that includes all that are named in the statute. But

it was meant to give the costs wherever a false imprisonment was the *531] subject of the action, whether under the form of trespass or case; and here the declaration stated that the plaintiff was falsely imprisoned. In Dibben v. Cooke, 2 Str. 1006, the Court said, "Before the statute of 8 & 9 W. 3, c. 11, if one defendant was acquitted, he was not entitled to his costs, the Courts construing the former acts to relate only to the case of a total acquittal of all the defendants. This being inconvenient, the 8 & 9 W. 3, c. 11, came, and gave costs where one of the defendants is acquitted, unless the Jndge certifies a reasonable cause to make him a defendant. And that act extends to trespass, assault, false imprisonment, and ejectment." But the action there being for a nuisance, the Court thought it did not come within the act. Ingle v. Wordsworth, 3 Burr. 1284, where the costs were refused, was an action of replevin; and Marriner v. Barrett, cited in that case, was an action of trover. But no case has decided that costs shall be withheld where false imprisonment is the subject, though not the form of the action.

TINDAL, C. J. The rule cannot be laid down with greater accuracy than by Lord Hardwicke in the case referred to. "The act extends to trespass, assault, false imprisonment, and ejectment. The present action is trespass on the case; and though that be a species of trespass, and in the case of the statute of limitations, the word trespass in the proviso has been extended to VOL. XIX.-31

X

actions on the case; yet, considering these acts giving costs have always been looked on as penal acts not to be extended by equity, and, therefore, an avowant not within the word plaintiff, Carth. 179, we must take it only to mean the general sort of trespass vi et armis: 10 Rep. Marshalsea case.' And the question is, whether this act can be *construed in the manner now re[*532 quired. The words of the act are, "where several persons shall be made defendants to any action, or plaint of trespass, assault, false imprisonment, or ejectione firma, and any one or more of them shall be, upon the trial thereof, acquitted by verdict, every person or persons so acquitted shall have and recover his costs of suit in like manner as if a verdict had been given against the plaintiff or plaintiffs and acquitted all the defendants, unless the Judge, before whom such cause shall be tried, shall immediately after the trial thereof, in open Court, certify upon the record under his hand, that there was a reasonable cause for the making such person or persons a defendant or defendants to such action or plaint." And it appears to me that this declaration does not come within those words. An action of false imprisonment means an action brought directly for the imprisonment; but here the imprisonment is stated only as matter of aggravation incidental to the principal charge; it is clearly not the gist of the action, and the very beginning of the declaration, "was attached to answer the plaintiff for plea of trespass on the case," puts the defendant out of Court.

PARK, J., and GASELEE, J., concurred.

BOSANQUET, J. By the action of false imprisonment, the statute meant an action brought for the imprisonment directly, and not as consequential damage. Rule discharged.

*FENN dem. THOMAS THOMAS v. GRIFFITH and Another.

May 10.

[*533

Ejectment. Plaintiff's witness proved an acknowledgment by the defendant, that he held under T., and stated that he, witness, had drawn an agreement touching the premises between plaintiff and T.:

Held, that plaintiff was bound to produce the writing.

EJECTMENT. At the trial before Goulburn, Serjt., last Pembroke great sessions, the lessor of the plaintiff claimed under a lease from the mayor, bailiff, and burgesses of Tenby made in 1788, which was put in and read. A witness for the plaintiff then proved, that the defendants succeeded to and claimed under Alexander Thomas, who occupied the premises before them. The witness said he had drawn an agreement or lease concerning the premises, between the lessor of the plaintiff and A. Thomas: he had often heard A. Thomas say he held the premises under the lessor of the plaintiff, but never heard him say anything about the agreement or lease. The defendant had received a notice to quit without objection. The writing mentioned by the witness was not produced, but a verdict having been taken for the plaintiff, with leave for the defendant to move to enter a nonsuit,

Russell, Serjt., obtained a rule nisi accordingly, on the ground, that it having appeared by the plaintiff's own witness that the premises had been demised by a writing, it ought to have been produced as the best evidence of the duration of the term: Brewer v. Palmer, 3 Esp. 213.

Ludlow, Serjt., showed cause. There was no reason for producing the wri ting unless it had also appeared to apply to the time of which the witness was speaking. It might have been an expired lease; and the defendant had never himself acknowledged its existence. At all events, there was no question here about the terms of *the writing, the only dispute was, whether the de

fendant held under the plaintiff, and that was virtually admitted by his [*584

not objecting to the notice to quit.

In Brewer v. Palmer, the plaintiff was not permitted to recover in an action for use and occupation, without producing a written instrument under which the defendant held; but that case is distinguishable on the ground, that the amount to which the plaintiff was entitled must have been expressly specified in the instrument.

TINDAL, C. J. The plaintiff here, who claimed an interest adverse to the defendant, ought to have produced the writing when its existence was shown by his own witness.

PARK, J. As the plaintiff's own witness stated there was a writing, the Court was bound to see the nature of the instrument.

BOSANQUET, J.(a) I am of the same opinion: the plaintiff himself made the writing material, and ought to have produced it. Rule absolute.

(a) Gaselee, J., was at Chambers.

FORD v. BERNARD. May 12.

Demand of particulars of a notice of set-off delivered after a plea which was a nullity: Held, no waiver of the plaintiff's right to sign judgment.

DEBT. The defendant pleaded non assumpsit, and gave notice of set-off. The plaintiff took out the summons for particulars of the set-off, but afterwards signed judgment as for want of a plea. The action was brought to recover

67. 18.

Bompas, Serjt., with an affidavit of merits, obtained a rule nisi to set aside *535] this judgment, on such terms as the *Court should impose. He contended that the plaintiff had waived the irregularity of the plea of non assumpsit, by taking out a summons for the particulars of set-off. In Margerem v. Makilwaine, 2 N. R. 509, it was held, that the plaintiff by taking the plea out of the office, waived the objection that it was a nullity.

Wilde, Serjt., showed cause. This plea is not merely irregular but null, and there can be no waiver of a nullity. In Margerem v. Makilwaine, the plea was good on the face of it, and merely irregular as not having been put in by the attorney in the cause.

Bompas. After an affidavit of merits, it has always been the practice to allow the defendant to try the cause upon some terms; as, paying all costs and putting the plaintiff in the same situation.

TINDAL, C. J. This judgment is regular; the defendant has put in a plea not adapted to the nature of the action. It has been decided that non assumpsit, if pleaded to a declaration in debt, is a nullity; (a) and we do not think any waiver of this nullity has taken place, by the plaintiff's afterwards calling for the particulars of a notice of set-of; the notice forms no part of the record, and what has been done does not affect the matter on record. There is a manifest distinction between a mere nullity, and a plea good on the face of it, which was the case in Margerem v. Makilwaine.

It comes then to the question, whether we are in all cases to set aside a regular judgment upon a mere affidavit of merits, and imposing terms on the defendant. Before doing so, we may no doubt look into the particulars of the cause, and when we find that this is an *action to recover no larger a sum than *536] 67. 18., and the defendant asks us to allow him to pay a considerable amount for the purpose of going to trial, we think it mercy to him to discharge the rule.

Rule discharged, with leave for the prothonotary to inquire into the case.

(a) See Perry v. Fisher, 6 East, 549.

TAYLOR and Another, Assignees of MELLERS, an Insolvent,
v. LANYON. May 14.

A landlord, who seizes his tenant's goods under an execution, the proceeds of which he is obliged to refund to the assignees of the tenant under 7 G. 4, c. 57, s. 34, cannot retain against the assignees the amount of a year's rent under the 8 Ann. c. 14, s. 1.

THIS was an action of indebitus assumpsit.

The declaration contained counts for money had and received by the defendant to the use of the insolvent; money lent and advanced, and paid, laid out, and expended by the insolvent for the use of the defendant; and upon an account stated between the defendant and the insolvent. Also counts for money had and received by the defendant to the use of the plaintiffs, as assignees of the said insolvent; and upon an account stated between the defendant and the plaintiffs, as assignees as aforesaid. The defendant pleaded the general issue. At the trial of the cause before Tindal, C. J., London sittings after Easter term last, a verdict was found for the plaintiffs, damages 1307., subject to the opinion of the Court on the following case :

The insolvent, before and at the time of the issuing of the writ of execution thereinafter mentioned, was possessed of a certain house in Norfolk Street, Strand in the county of Middlesex, as tenant thereof to the defendant, under & lease for a term of years, then unexpired; and also of certain goods and chattels, being the furniture in the said house.

*On the 31st of May, 1828, the insolvent being indebted to the defendant in the sum of 307. for fixtures on the same premises, and in the sum [*537

of 501. for part of the consideration for the lease of the said house, executed a warrant of attorney, giving authority to enter up judgment at the suit of the defendant for the said respective sums of 307. and 50%. Final judgment was signed thereon on the 30th of June, 1828, and a writ of fieri facias upon the said judgment, at the suit of the defendant, was issued on the same day against the goods and chattels of the insolvent.

On the said 30th of June, 1828, there was one year's rent due from the insolvent to the defendant under the said lease, and the defendant gave notice of the same being so due to the sheriff's officer, to whom the writ of execution was delivered, and at the same time required him to retain the same out of the proceeds of the said execution to satisfy the defendant for the said rent.

On the 1st of July, 1828, the lease, goods and chattels of the insolvent were taken in execution under the said writ, and on the 18th day of the same month were sold under and by virtue of such execution, and produced 2177. 13s. 6d.

The sum of 1307. for the said rent due to the defendant was deducted from the said sum of 2177. 13s. 6d., the proceeds of the said sale, and on the 7th of August paid over to the defendant by the said officer; and the balance, after further deducting the several sums due for taxing and incidental expenses, was paid into court in this action.

On the 14th of June, 1828, the insolvent surrendered himself to prison in discharge of his bail, and continued in prison from that time until his discharge thereinafter mentioned.

On the 19th of July he filed his petition in the court for the relief of insolvent debtors in England under and *in pursuance of the act, passed in the seventh year of his present majesty's reign, intituled An Act to [*538 amend and consolidate the laws for the relief of insolvent debtors in England; and, on the 24th of September, 1828, the said insolvent was, under and in pur. suance of the said act, discharged from imprisonment.

The plaintiffs were the assignees of the estate and effects of the said insolvent, and duly appointed and constituted according to the said act.

The jury found that the said warrant of attorney was not given by way of fraudulent preference to the defendant.

The question for the opinion of the Court was, whether the plaintiffs, as assignees of the insolvent, were entitled to recover from the defendant the said sum of 1307. so paid to the defendant?

If the Court should be of opinion that the plaintiffs were entitled to recover, the verdict for the plaintiffs was to stand; if not, a nonsuit was to be entered. Taddy, Serjt., for the plaintiffs. The defendant is not entitled to retain the amount of rent taken under the execution. The object of the insolvent debtors' act, like that of the bankrupt acts, is to effect an equal division of the debtor's property; and as far as respects the defendant's warrant of attorney, he was compelled to refund the proceeds of the execution to the creditors, under the thirty-four section of 7 G. 4, c. 57. In Notley v. Buck, 8 B. & C. 160, it was decided on the corresponding provision of the bankrupt act, 6 G. 4, c. 16, s. 108, that the creditors were entitled to recover from the sheriff in an action for money had and received the proceeds of an execution levied after the bankruptcy of the debtor upon a judgment by nil dicit suffered by him before. There is no

*539] *exception in favour of a landlord. And the statute 8 Ann. c. 14, s. 1, by which it is enacted that "no goods or chattels shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is sued out shall, before the removal of such goods from off the premises by virtue of such execution, pay to the landlord of the said premises or his bailiff all such sum or sums of money as are or shall be due for rent, provided the said arrear do not amount to more than one year's rent," applies only to cases where an execution creditor claims adversely to the landlord, not where the landlord is himself the execution creditor. The object of that statute was to protect the landlord against the frauds of tenants, particularly in colluding with creditors to deprive the landlord of the means of distraining for his rent; and it would lead to serious inconvenience if a landlord were permitted to levy his rent under an execution for a debt of a different description; the tenant would be deprived of the right of contesting in a replevin the amount of rent claimed, and would be divested of the protection afforded him by the various acts for the prevention of irregular distresses. It is plain that the execution cannot be supported under the judgment, and the statute 7 G. 4, would be rendered nugatory if the defendant could effect that in the character of landlord which he is precluded from doing as a creditor. In Lee v. Lopez, 15 East, 231, the sheriff upon an execution by the landlord levied for him, as rent arrear, 1407. beyond the amount of the execution debt; but the tenant having previously committed an act of bankruptcy, it was held that his assignees were entitled to the money. That case cannot be distinguished from the present. And it has not been the practice of the courts to give a more extended *construction to the statute of Anne; for in Brandling v. Bar

*540] rington, 6 B. & C. 467, where the sheriff had retained a sum for rent on executing on the tenant a writ of pone per vadios, which it was held he ought not to do, Lord Tenterden said, "The process under which the sheriff seized and sold the goods in question was not process of execution on a judgment; it was not therefore within the words of the statute. But it is said that it was within the equity. Speaking for myself alone, I cannot forbear observing, that I think there is always danger in giving effect to what is called the equity of a statute, and that it is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to them."

Wilde, Serjt., contrà. Under this execution the defendant is entitled to retain the sum due to him for rent; for the thirty-fourth section of 7 G. 4, c. 57, does not avoid the execution,-Taylor v. Taylor, 5 B. & C. 392,-resembling in that respect the 108th section of the bankrupt act, 6 G. 4, c. 16; and Moreland v. Pellatt, 8 B. & C. 722, comes nearer to the present case than Notley v. Buck. In Moreland v. Pellatt, judgment was entered up on a warrant of attorney given by two joint traders, and a fi. fa. issued, returnable on the 2d of May. On the 1st of that month the sheriffs' officer received from the defendants the money