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Shepherd. When on the face of the writ, the action appears to be founded on a contract, and two perfons are there mentioned, the declaration must be against both; but where the writ does not import a contract, it is otherwife. Almost all writs are against two, the name of John Doe being generally inferted with that of the real Defendant, and the Court will not now for the purposes of this rule, take notice that Richard Share is not a fictitious perfon.
Runnington in fupport of the rule. I know of no fuch diftinction, as has been ftated; 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.
SPENCER V. SCOTT.
SHEPHERD Serjt. fhewed caufe againft a rule obtained by Run- Quare claufum nington Serjt, on a former day, to fet afide the proceedings fregit again in this action for irregularity, with cofts.
two, and a declaration against one, held regu
The Plaintiff had fued out a quare claufum fregit again lar. Walter Scott and Richard Shaw, and had declared against Scott only.
EYRE Ch. J. My brother Shepherd ftates 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 Defendant 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 ftayed because two names appear in the writ, and one only in the declaration; for John Doe is never inferted in the declaration.
Rule discharged without costs. (a)
(-) See post, Stables and Another v. Aßßley and Others (last case in this term), poft, 49.
Poft, 50. 2 New
In an action on
Clayton Serjt. for the Plaintiff.
that a ferious in-
All the allegations in the his witneffes, and Defendant's affidavit may be true, and yet there may be no ground for the prefent application. For perhaps he may have only one witnefs at Ludlow, and then it may be more inconvenient 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 witneffes living at a distance. The only question is, whether the Court fhall deviate from the ufual practice, and I fubmit that where the affidavit difclofes circumftances fingular or extraordinary it will.
EVANS U. WEAVER.
Williams Serjt. having obtained a rule to fhew cause why the venue fhould not be changed from London to Shropshire, on an affidavit that the Defendant had a good defence at Ludlow in Shropshire, and that all his witneffes lived there, as well as the ufual affidavit.
Per Curiam. The Defendant only fwears that he has a good defence, and that all his witneffes live at Ludlow; but he does not state what are the grounds of his defence, nor whether he has one, two, or three witneffes, or how many. If he had a number of witneffes all living there, and he were to state that on his affidavit, and fhew that a ferious inconvenience would arife from bringing them up, it might induce the Court to deviate from the general rule. But if the Defendant fhould have one witnefs only, the Court would hardly change the venue on account of that one. It might be more expenfive to the Plaintiff to carry down his witneffes to Ludlow, than for the Defendant to bring up his to London. It will be eafy to ftate the circumftances on an affidavit.
On the 19th Williams produced a fupplemental affidavit, ftating that the defence on which the Defendant intended to rely, was a
(a) See Fofer v. Taylor, 1 T. R. 781. where the venue was changed under fimilar circumstances; e contrà, Bevis admi
niftratrix v. Moors; Poole v. Horobin, and Flecke v. Godfrey, in a note to the above cafe. fet
fet-off for money paid, lent, had, and received, and account stated; that he had three witneffes living at Ludlow, all of whom were effential to eftablish his defence; that it would be neceffary to prove a judgment for 47. 5s. in the town-court of Ludlo, (which however the Plaintiff offered to admit, and that this application was not made for the purpofe of delay.
On which the rule was made abfolute, the Defendant confenting to allow judgment to be entered up as of Trinity term, in cafe of a verdict for the Plaintiff at the affizes.
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.
NEAT V. ALLEN.
THE HE bail in this action being brought up to juftify, Shepherd It is no objection Serjeant afked one of them, how long he had known the to bail that they Defendant? But the Court thought the queftion improper. And on Shepherd's fuggefting that the bail had not been acquainted with the Defendant above three or four days, and that he was indemnified by the Sheriff's officer,
TAYLOR V. SHUM and Others.
EBT for rent against the affignees of a term. DEBT
There is no fraud in the af
intereft, to whom
Pleas. Firft, That the term eftate and intereft in the fignee of a term premifes did not come to the Defendants by affignment: and aligning over his iffue thereon. Second, That the Defendants did not by virtue he pleases, with of any fuch affignment, enter into and become poffeffed of the premifes: and iffue thereon. Third, That before the demanded, or any part of it became due and payable, Defendants affigned to one William Bishop.
view to get rid
of a leafe, al
though fuch perfon neither takes actual poffeffion, no receives the
Qu. If the repli
Replication. That the said supposed affignment to the faid William Bishop in the third plea mentioned, was had and made cation per frauby the faid Defendants, by the fraud and covin of the faid dem by the leffor to a plea of af Defendants, with intent to defraud the faid Plaintiff of her fignment in fuck faid debt: and iffue joined thereon. a cafe, can ever be good? Cer. tainly not, where the party affigning derives no benefit from the premifes c 3 The
The premises in queftion were demifed in the year 1788 by the Plaintiff to one Hannah Adams, for twenty-one years, and afterwards came by feveral mefne affignments to one Sibley; in the year 1792 Sibley mortgaged the leafe to the Defendants, who on his becoming infolvent, and abandoning the premifces, took poffeffion, and paid the rent up to Christmas 1795; at which time they offered to furrender the premifes to the Plaintiff, and on his refufal to accept, affigned over to William Bifhop: fince that time the Defendants had neither enjoyed the premises nor paid any rent: nor had Bishop taken poffeition, or received the leafe.
This caufe came on to be tried at the fittings after laft Hilary term in London, before Eyre Ch. J., when a verdict was found for the Plaintiff, with leave for the Defendants to move to fet it afide and enter a nonfuit.
Accordingly Le Blanc Serjt., having on a former day obtained a rule to fhew caufe, and cited the cafe of Le Keux v. Nafh, Str. 1221. where an affignment to a prifoner in the Fleet was held good,
Shepherd Serjt. for the Plaintiff now produced an affidavit, ftating that the Defendants had informed the Plaintiff that William Bishop the affignee lived in Harp Lane; but that although upon inquiry one or two perfons of that name were found there, yet they had no knowledge of the affignment. He admitted that the Defendants might felect a pauper for the purpofe of affigning over to him, but infifted that there must be a good and valid affignment, fo as to give the fame remedy against the pauper as might have been had against the Defendants, otherwise the execution would be fraudulent. That if this were not the cafe they might have affigned to a non-entity. (Buller J. If they execute to a non-entity it is no afignment.) He contended that the Defendants had not legally divefted themselves, for they had not made fuch an aflignment as would bind the affignee, he never having had poffeffion of the premifes, or delivery of the leafe. He cited Philpot v. Hoare, Ambl. 485., where an improper defcription of the refidence of the aflignee was one of the grounds on which the affignment was held fraudulent.
Le Blanc contrà was stopped by the Court.
EYRE Ch. J. It was no part of the cafe at the trial that there was no fuch perfon in exiftence as the perfon defcribed in the affignment; the affignment was admitted on the pleadings. The real queftion is, whether the Defendants could affign to whom
they pleased, so as to destroy their own liability. If you have no remedy against the affignce, you muft lofe your rent, and get poffeffion of the premifes as foon as you can. The only cafe in which a queftion of fraud could arife, is, where the affignor has kept poffeffion of the premifes, of which he makes a profit, and has made an affignment to prevent refponfibility. But even there, if the poffeffion be profitable, there will always be fomething on the premifes for the landlord to diftrain; fo that I doubt whether there can ever be fuch a thing as a fraudulent affignment, and whether an iffue on fuch a point can ever be well taken. It is clear that there is no fraud in affigning to a beggar (a), or to a perfon leaving the kingdom, provided the affignment be exe cuted before his departure. The Defendants had a right to diveft themselves of the intereft, by the mere form of an affignment, which drives the Plaintiff to take poffeffion.
BULLER J. An affignee is only liable while he continues to be kral affignce; that is, while he is in poffeffion under the affignment (b). I will firft confider the cafe as it flood at the trial, and next as it ftands upon the facts of the affidavit. What was to be tried? not whether an affignment had been made or not; that was taken ex conceffis; it was admitted on the record. Where the affignor continues in poffeffion, is the only cafe where the replication per fraudem can be good; here the Defendants were clearly not in poffeffion, and had no ufe of the premifes; then what becomes of the iffue? Secondly, has any thing appeared fince the trial to fhew that juftice has not been done? the very reverfe. Was the Plaintiff taken by furprife? It is true, that he has found a perfon of the name of Bishop, refpecting whom there is fome doubt, if he be the perfon mentioned at the trial; but the Defendants have received no benefit; they offered to give up the premifes, which offer was refufed. The Plaintiff adhered to the ftrict point of law againft the juftice of the cafe; the law is against him, and therefore he shall have no indulgence.
HEATH J. This action is founded on the privity of eftate (c); but here there is none, therefore the Plaintiff is not entitled to recover. So far from fraud appearing, the Defendants declared their
(a) Pitcher v. Tovey, Salk. 81. 4 Mod. 71.S. C.
(b) Vide Walker v. Reeves, Doug. 461. in the note, and Buller's N. P. 159.
(c) Carth. 177.