unless the crown interpofe. The affignees may allow the bankrupt to trade, and will have a right to recover the fruit of his contracts. ROOKE J. I am of the fame opinion. If a ftranger is under any difficulty about defending himself against the affignees in a fubfequent action, he has only to give them notice of the firft, and inquire whether they choose to defend it, and thereby he would be fecured, Rule difcharged. (a) (4) This cafe was afterwards confirmed by a fimilar decifion in the K. B. See Webb v. Fox and Another, 7 T. R. 391. 1797. FOWLER v. DOWN. LE LOVERIDGE V. BOTHAM, E BLANC Serjt. having moved for the prothonotary's report in this cafe, it appeared that the Plaintiff had delivered a bill to the Defendant in 1793, for attorney's bufinefs done, previous to that time; in 1795 another bill was delivered for bufinefs done during the fame period, into which many new items were introduced, and fome of the former charges raised in amount, The prothonotary wished to be informed how far he was to confider the Plaintiff as concluded by the delivery of his first bill. May 27th. Delivery of an conclufive evi contained in it: The Court faid that the delivery of the former bill was conclu- any additional five evidence againft an incrcafe of charge on any of the items items. contained in it, and ftrong prefumptive evidence against any additional items; but that if errors or real omiffions in the former bill could be proved, they ought to be allowed for; and directed the prothonotary to review on this line of diftinction. (a) (e) Knox v, Whalley, Efp, Cas. N. P. 159, A STABLES and Another v, ASHLEY and Others. May 29th. 4 Eaft, 590. gular. Ante, 19. 2 New Rep. 83. RULE was obtained by Shepherd Serjt. on a former day, to In procefs not fhew cause why the proceedings in this action fhould not be bailable, if the writ be joint and fet afide for irregularity. A quare claufum fregit having been fued the declaration out by the Plaintiffs againft Ashley, Froft, and Grignon, and Ashley's feveral, it is reattorney ferved with a copy of the procefs, he fearched the Fila- Secus in bailable zer's Book, and found a memorandum (a) of a warrant of attorney proces. in the action against all three, and accordingly on the 3d of May entered one joint appearance for them, though he had authority from Afhley only; on the 4th of May he was ferved with a notice (e) 25 Gro. 3. c. 80, FOLL of 1797. STABLES and ข. ASHLEY and Others. of declaration; on the 5th he took it out of the office, and found that Ashley was the only one of the three declared against. Le Blanc Serjt. for the Plaintiffs contended, 1ft, That as it was not a bailable procefs, the proceedings were regular, and cited Yardley v. Burgess, 4 T. R. 697. in the note, and Spencer v. Scott decided in this term (6); 2dly, That if there were any irregularity, it had been waived by the Defendants' taking the declaration out of the office; and 3dly, That the Defendants' attorney was equally irregular with the Plaintiffs, having entered a joint appearance for all three, when authorised by one only. Shepherd contrà infifted that the writ and appearance being joint, and the declaration feveral, there was no procefs to warrant it; that the cafe of Spencer v. Scott went upon the poffibility of the additional Defendant's being a fictitious perfon like John Doe, but here the fervice included all three; that taking a declaration out of the office is a waiver of irregularity in the procefs, because the Defendant is acquainted with that before he goes to the office, but not of irregularity in the declaration, for he must take out that before he can ascertain whether it be irregular or not he added, that by the prefent mode of proceeding the revenue would be defrauded. Per Curiam. The attorney has taken upon himself to enter an appearance for three, having an authority from one only; the Court therefore, if neceffary, might cure the whole irregularity by fetting afide the appearance as to two of the Defendants, and letting it ftand for Ashley only. Unless we found ourfelves bound by the stricteft authorities, we would not countenance fuch an objection as this; but the practice feems against this objection; the diftinction (c) is between procefs bailable and not bailable; in the latter a declaration may be delivered against one, though any number be mentioned in the writ, and no inconvenience can refult from it; we will not diftinguish between John Doe and a real Defendant, in order to raise an objection. (6) Suprà, page 19. Rule discharged without cofts. Holland v. Richards and Gardley v. Bur (c) Holland v. Johnson, 4 T.R. 695. gess, T. 32 G. 3. ibid, in Notes. CASE S ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, IN Trinity Term, In the Thirty-feventh Year of the Reign of GEORGE III. 1797. NORTH qui tam v. SMART. AQUI TAM action having been brought on the 20 Geo. 3. c. 51. for fending in falfe accounts to the farmers of the duties on post-horses; Le Blanc Serjt. on a former day moved for leave to compound on payment of 40s. to the Crown, and fuch duties as were deficient in confequence of the fraud (which did not amount to 40s.) together with the cofts of the action to the profecutor. Shepherd Serjt. faid he was inftructed to confent. But the Court feemed to doubt whether, as the deficient duties, together with the cofts of the action, would amount to more than the 40s. paid to the Crown, the compofition could be allowed, and it ftood over. On this day Le Blanc mentioned it again, and faid that he had looked into the act, and found that the prosecutor was allowed the full cofts of fuit; and therefore that the value of the cofts could not be confidered as a part of the compofition. E 2 Accord 1797. NORTH V. SMART. Accordingly, the Court gave leave to compound, and said that as the act was made for the benefit of the farmers of the post-horse duties, it was not unreasonable that they should make the compofition on their own terms. Befides with respect to cofts, this was not like other popular actions. June 20th. The Court will fet afide a regular judgment, on an affidavit of merits, though bankruptcy is in tended to be pleaded. MARSE EVANS V. GILL. ARSHALL Serjt. fhewed caufe againft a rule for fetting afide a regular judgment on an affidavit of merits, upon the ground that the Defendant meant to plead his bankruptcy. This is not more a plea of merits than infancy, coverture, ufury, or the Statute of Limitations: and in thofe cafes the Court has refufed fimilar applications (a). Bankruptcy is not a meritorious, but a mere legal defence, againft a confcientious claim; it is not fuch a discharge but that a previous debt may be a confideration for a new promife, as in cafes of infancy, and the Statute of Limitations. Sed per Curiam. Suppofing this to be a fair bankruptcy, we fhould permit the party to make use of it as a defence; when he has given up all his effects, it would be cruel to charge him from a neglect in the attorney; the neceffary confequence of which would be, that he muft go to gaol. In all cafes of fair bankruptcy, we think the party should have an opportunity of taking advantage of it. Rule abfolute on payment of cofts (a) Vid. Forbes v. Lord Middleten, Str. 1242. and Willett v. Atterton, Bl. 35 L. 1797. BUCK, on the joint and feveral Demifes of WHALLEY June 22d. THIS HIS was an ejectment to recover fixty-four acres and a half Lands ufually occupied with a of land, confifting of a park, meadow land, pafture land, and orchards, tried before Buller J. at the laft Lent aflizes for the county of Somerset, when the Jury found a verdict for the Plaintiff, fubject to the opinion of this Court upon the following cafe: Edward Clarke, deceased, being feifed (among other things) of the premises in queftion, did, by his laft will duly executed, and bearing date the first day of November in the year of our Lord 1794, devife (amongst other things) as follows: "I give and devife unto my trufty and well-beloved friend “John Nurton, of Milverton in the county of Somerfet aforefaid, * Gentleman, (and who was acting for the teftator, at his death, as "his fteward,) his heirs and affigns, all that meffuage and farm "called Blagroves, and the feveral pieces and parcels of land "therewith held and enjoyed, fituate, lying, and being in the "parith of Milverton aforefaid, and now in the occupation of "Jonas Chorley; alfo all that clofe, piece or parcel of meadow “or marsh ground, called Great Crook, fituate, lying, and being "in the parish of Bawdripp in the faid county of Somerset, and "now in the occupation of John and Richard Langdon; to hold "the faid meffuage or tenement and farm, lands, hereditaments, "and premifes, with their refpective appurtenances, unto the faid John Nurton, his heirs and affigns for ever." Having then given certain legacies and annuities, he further gives and devifes as follows; houfe, will not país under a demeduage, with the appurte lefs it clearly ap vite of "a ninces, un pears that the to extend the word "appur teftator meant "tenances" beyond its techni cal feute. "I give and devife unto my good friend and relation Eliza"beth Whalley, wife to the faid Thomas Sedgwick Whalley, (the "faid Elizabeth Whalley being one of the coheirs of the teftator,) "all that my capital manfion-house wherein I now live, and the “ lands and grounds thereto belonging, and therewith held and en"joyed, with the appurtenances: and alfo all that my manor or "lordship of Chipley, and all other my manors or lordships, "meffuages, farms, lands, tenements, hereditaments, and premifes, "as well freehold or fee-fimple, as copyhold and customary, "whereof I have a difpofing power; except the meffuage, or "tenement, and farm, lands, hereditaments, and premifes herein- [54] "before devifed to the faid John Nurton, fituate, lying, and |