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1797.

tivo, and a declaration against

Muy Itth. SPENCER V. SCOTT.

Posi, 50.2 News

Rep. C. B. 82. SHEPHERD Serjt. shewed cause against a rule obtained by Run- Quare claufum

nington Serjt, on a former day, to fet alide the proceedings fregit again. in this action for irregularity, with costs. The Plaintiff had sued out a quare claufum fregit againt lar.

one, held reguTalter Scott and Richard Share, and had declared against Scolt only.

Shepherd. When on the face of the writ, the action appears to be founded on a contract, and two persons are there mentioned, the declaration must be against both; but where the urit does not import a contract, it is otherwise. Almost all writs are against two, the name of John Doe being generally inserted with that of the real Defendant, and the Court will not now for the purposes of this rule, take notice that Richard Shaw is not a fictitious person.

Runnington in fupport of the rule. I know of no such diftinction, as has been stated; if the declaration be against one, and the writ against two, the proceedings are irregular; and even upon the above distinction, it may be observed here, that though the writ was a quare claufum fregit, the notice of declaration was debt on contract.

EYRE Ch.J. My brother Shepherd states it to be the practice to put any names into the writ, as John Doe; which is very intelligible; the writ here is only the process by which this Den fendant was brought into Court, and the notice of declaration given afterwards is right. If John Doe be ever joined in the writ with the real Defendant, it follows that proceedings are not to be stayed because two names appear in the writ, and one only in the declaration; for John Doe is never inserted in the de. claration.

Rule discharged without costs. (a)

(2) See poft, Stables and Another v. Afley and Others (last case in this term), post, 49.

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1797.

May 12th.

EVANS V. WEAVER.

county where

his witnesses live
there : but if
his affidavit thew
the number of

up, it will.

Iu an a'tion on This was an action on a promissory note for 401. in which a promiffiory note, the Court kind of action the general rule is, that the Defendant canwill not change not change the venue. the venue from I.ondon to the Williams Serjt, having obtained a rule to shew cause why

the venue should not be changed from London to Shropshire, it was made, on the Defendant's on an affidavit that the Defendant had a good defence at LudItating that all

low in Shropshire, and that all his witnesses lived there, as well as the usual affidavit.

Clayton Serjt. for the Plaintiff. All the allegations in the liis witnesses, and Defendant's affidavit may be true, and yet there may be no that a serious in- ground for the present application. For perhaps he may have would arise frem only one witness at Ludlow, and then it may be more inconbringing them

venient for the Plaintiff to carry down his witnesses than for the Defendant to bring up his.

Williams for the Defendant. It is not the first time (a) that an application has been made on the ground of the Defendant’s witnefles living at a distance. The only question is, whether the Court shall deviate from the usual practice, and I submit that where the affidavit discloses circumstances fingular or extraordinary it will.

Per Curiam. The Defendant only swears that he has a good defence, and that all his witnesses live at Ludlow; but he does not state what are the grounds of his defence, nor whether he has one, two, or three witnesses, or how many. If he had a number of witnesses all living there, and he were to state that on his affidavit, and shew that a serious inconvenience would arise from bringing them up, it might induce the Court to deviate from the general rule. But if the Defendant lhould have one witness only, the Court would hardly change the venue on account of that one. It might be more expensive to the Plaintiff to carry down his witnesses to Ludlow, than for the Defendant to bring up hís to London. It will be easy to state the circumstances on an aslidavit.

On the 19th Williams produced a supplemental affidavit, ftating that the defence on which the Defendant intended to rely, was a

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(a) See Fofer v. Taylor, 1 T. R.781. niftratrix v. Moore; . Poole v. Horebin, and where the venue was changed under fimi- Flecke v, Godfrey, in a note to the above Jar circumitances; e contrà, Brvis admi- cale.

set1797.

EVANS

AVER.

set-off for money paid, lent, had, and received, and account ftated; that he had three witnesses living at Ludlow, all of whom were essential to establith his defence; that it would be neceffary to prove a judgment for 41. 5s. in the town-court of Ludlvá, (which however the Plaintiff offered to adinit, and that this application was not made for the purpose of delay.

On which the rule was made absolute, the Defendant consenting to allow judgment to be entered up as of Trinity term, in case of a verdict for the Plaintiff at the aflizes.

NEAT V. ALLEN.

May 15th.

THE

"He bail in this action being brought up to justify, Shepherd It is no objection

Serjeant asked one of them, how long he had known the to bail that they Defendant? But the Court thought the question improper. And on Shepherd's suggesting that the bail had not been acquainted with the Defendant above three or four days, and that he was indemnified by the Sheriff's oflicer,

Per Curiam. The fufficiency of the bail is the object of which the Court are to take care: there is no impropriety in their being indemnified: it is a very common practice.

Bail allowed.

TAYLOR V, SHUM and Others.

May 16th.

There is no fraud in the al

DEBT
EBT for rent against the allignees of a term.

Pleas. First, That the term estate and interest in the fignee of a term premises did not come to the Defendants by assignment: and afligning over his iflue thereon. Second, That the Defendants did not by virtue he

interest, towhom of any such aflignment, enter into and become possessed of the a view to get rid premises: and issue thereon. Third, That before the rent though fuch perdemanded, or any part of it became due and payable, the son neither takes

actual possession, Defendants assigned to one William Bishop.

nor receives the Replication. That the said supposed assignment to the said leafe.

Qu. If the repliWilliam Bishop in the third plea mentioned, was had and made cation per frawby the faid Defendants, by the fraud and covin of the faid dem by the bilfor Defendants, with intent to defraud the faid Plaintiff of her lignment in fuck faid debt: and issue joined thereon.

a care, can ever

be good ? Cer. tainly not, where the party assigning derives no benefit from the premises,

The

C 3

1797.

TAYLOR

Shum and
Others.

The premises in question were demised in the year 1788 by the Plaintiff to one Hannah Adams, for twenty-one years, and afterwards came by several mesne assignments to one Sibley ; in the year 1792 Sibly mortgaged the lease to the Defendants, who on his becoming infolvent, and abandoning the premises, took pofselfion, and paid the rent up to Christmas 1795; at which time they offered to surrender the premises to the Plaintiff, and on his refusal to accept, alligned over to William Bifhop: fince that time the Defendants had neither enjoyed the premises nor paid any rent: nor had Bishop taken poffeilon, or received the lease.

This cause came on to be tried at the fittings after lait Hilary term in London, before Eyre Ch. J., when a verdict was found for the Plaintiff, with leave for the Defendants to move to set it afide and enter a nonfiuit.

Accordingly Le Blanc Serjt., having on a former day obtained a rule to shew cause, and cited the case of Le Keux v. Nash, Str. 1221. where an aslgnment to a prisoner in the Ficet was held good,

Shepherd Serjt. for the Plaintiff now produced an affidavit, ftating that the Defendants had informed the Plaintiff that William Bishop the aflignee lived in Harp Lane ; but that although upon inquiry one or two persons of that name were found there, yet they had no knowledge of the aflignment. Ile admitted that the Defendants might select a pauper for the purpose of assigning over to him, but insisted that there must be a good and valid aflignment, so as to give the same remedy against the pauper as might have been had against the Defendants, otherwise the execution would be fraudulent. That if this were not the case they might have aligned to a non-entity. (Buller J. If they execute to a non-entity it is no afilgnment.) He contended that the Defendants had not legally divefted themselves, for they had not made fuch an alignment as would bind the assignee, he never having had poffeffion of the premises, or delivery of the leafe. He cited Philot v. Hoare, Ambl. 485., where an improper description of the residence of the aflignee was one of the grounds on which the aflignment was held fraudulent. Le Blanc contrà was stopped by the Court.

EYRE Ch.J. It was no part of the case at the trial that there was no such person in existence as the person described in the alignment; the affignment was admitted on the pleadings. The real question is, whether the Defendants could aflign to whom

they

1797.

TAYLOR

SHUM and

Others

they pleased, so as to destroy their own liability. If you have no remedy against the assignee, you must lose your rent, and get poffefiion of the premises as soon as you can. The only cafe in which a question of fraud could arise, is, where the assignor has kept pofleflion of the premises, of which he makes a profit, and has made an allignment to prevent responsibility. But even there, if the possession be profitable, there will always be something on the premises for the landlord to distrain; so that I doubt whether there can ever be such a thing as a fraudulent assignment, and whether an issue on such a point can ever be well taken. It is clear that there is no fraud in afligning to a beggar (a), or to a perfon leaving the kingdom, provided the assignment be executed before his departure. The Defendants had a right to diveft themselves of the interest, by the mere form of an assignment, which drives the Plaintiff to take poffeffion.

BULLER J. An assignee is only liable while he continues to be lega! aflignee; that is, while he is in possession under the allignment (6). I will first consider the case as it stood at the trial, and next as it stands upon the facts of the affidavit. What was to be tried? not whether an aflignment had been made or not ; that was taken ex concessis; it was admitted on the record. Where the alignor continues in possession, is the only case where the replication per fraudem can be good; here the Defendants were clearly not in pofleffion, and had no use of the premises; then what becomes of the issue? Secondly, has any thing appeared fince the trial to thew that justice has not been done? the very reverse. Was the Plaintiff taken by surprise? It is true, that he has found a person of the name of Bishop, respecting whom there is some doubt, if he be the person mentioned at the trial; but the Defendants have received no benefit; they offered to give up the premises, which offer was refused. The Plaintiff adhered to the ftrict point of law against the justice of the case; the law is against him, and therefore he shall have no indulgence.

Heath J. This action is founded on the privity of estate(c); but here there is none, therefore the Plaintiffis not entitled to recover. So far from fraud appearing, the Defendants declared their

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