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PARTITION, 1. The 8 & 9 Will.3. c.31.8. 1. which di

rects the form to be pursued in a writ of partition, applies only to cafes where the tenant does not appear. Dyer v. Bullock and others, M. 39


1.3. Page 344


NONSUIT, JUDGMENT AS IN CASE OF, See PRACTICE, No.2. 38. 1. Judgment as in case of a nonfuit may

be entered up against the Demandant in a writ of right. Almgill et ut. v. Pierson and Others, M. 38 Geo.3.

Page 103 2. Nor will the Court relieve him if he

has conducted himself unfairly towards the tenant in the course of the proceedings.


See Bail, No.13. 15.

Bills of EXCHANGE, No.4, 5,6.
Tithes, No.1.

PARTNERS, See CONSIGNMENT, No.1. 1. A. B. C. and D. were partners in a

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banking-house at Liverpool, and C. and D. also carried on a separate mercantile concern in London: J.S. having accepted bills payable at the house of C. and D. employed A. B. C. and D. to get them paid accordingly, and agreed to deposit with them good bills indorfed by him, for the purpose of enabling them fo to do; A. B. C. and D. debited J. S. in account for his acceptances, and credited him for all the bills which he deposited; fome of the bills so deposited by J.S. were remitted by A. B. C. and D. to C. and D. upon the general account between the two houses, and before any of the acceptances of J. S. became due both houses failed, and J.S. was obliged to pay his own acceptances: held that the assignees of C. and D. were entitled to retain against J.S. the bills remitted to them by A. B. C. and D. Bolton v. Puller, 7. 36 Geo.3.

539 2. Held also, that it made no difference

that one of the bills remitted did not arrive in London till after the bankruptcy of C. and D., though sent by A. B. C. and D. before that event, ib.


PARTY WALLS. 1. If the leffee of a house at a rack-rent

underlet it at an advanced rent, he is liable to contribute to the expences of a party-wall built under the 14 Geo.3. c.78. Sangster v. Birkhead, T.38 G. 3.

303 2. Nor is the operation of the statute at

all varied by any covenants to repair, entered into by the landlord and tenant. Sangster v. Birkhead, T. 38 G.3. ib. abatement. ib.




Executor and ADMINISTRATOR, See Costs, No 2, 3, 4.


INDICTMENT, No.1. 2, 3, 4.

See ANNUITY, No.6.

LIBEL, No.2, 3. Bond, No.3


PRACTICE, No. 20, 21. 42. 1. If A. tenant for life, subject to for

TENDER, No.1. feiture, remainder over to B., lease to

VARIANCE, No.6. C. for a term, and afterwards apprehending that he has forfeited, acquiefce 1. In debt for rent against a mesne af. in B.'s claiming and receiving the rent fignee, the original leffor cannot reply from C., A.'s executor, on Thewing per fraudem to a plea of affignment, that he acquiefced under a false appre- where the Defendant derives no bene. hension, may recover from c. the fit from the premises. Taylor v. Skum amount of rent erroneously paid to B. and Others, E. 37 Geo.3. Page 21 Williams, Executor, &c. v. Bartholo- 2. Qu. Whether the replication per mew, M. 39 Geo.3. Page 326 fraudem can ever be good to fuch ?

plea? ib.

is. PAYMENT OF MONEY INTO COURT, 3. "If a declaration on a bail-bond conSee Practice, No.24.

clude, “ whereby an action hath acTENDER, No.I.

“ crued to the Plaintiff to demand and

“ have of the Principal (instead of the PENAL ACTION.

“ bail) and that the Prinsipal hath 1. The Court will not give leave to com

“ not paid, &c.” it is bad on special pound in a penal action after verdict,

demurrer. Morgan v. Sargent, T: unless the Defendant can fhew circum

37 Geo.3 stances which entitle him to fuch an

4. If the replication to a plea in abateindulgence. Crowder v. Wagstaff, E.

ment of the writ begin * that the faid

declaration ought not to be qualhed," 37 Geo.3. 2. In compounding a penal action on the

but conclude properly, it is well poft-horfe act, which gives cofts to the

enough, for such words may be to prosecutor, the Court will allow the

jected as furplusage. Sabine 1. E prosecutor to receive the deficient du

Johnstone, T. 37 Geo.3.

60 ties (not amounting to 40s.) and full 5. The reverfion of lands demised to the cofts of fuit, though together exceed

Defendant for years is conveyed to 4

and B. and the heirs of B. in truft for ing the 40s. paid to the crown. North g. t. v. Smart, T. 37 Geo.3.

A. and his heirs; A. declares fingly a 51

a covenant contained in the lease ; and PERJURY.

after setting out the above title wicked 1. Qu. Whether any one giving his tef.

averring the death of B. ftates himidi

to be " thereby feiled of the reverica timony under a commission issuing out

in his demesne as of fee.” This is bad of a court of law for the examination of witnesses in Scotland, could be

upon demurrer. Scott v. Godwin, T.

67 convicted of perjury. Calliand v. 6. In actions on contracts, if all the pela

37 Geo.3. Vaughan, H. 38 Geo. 3.

ties having a right to fue, are not made

co-plaintiffs, it is in bar, ib. 73 PLEADING,

7. Semb. contrà in actions on tortá. See Costs, No.5, COVENANT, No.2.

8. But where all the proper parties are DISCONTINUANCE, No.1.

not made co-defendants, it is only in EVIDENCE, No.3,4,5,6.



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Page 397


2. The plea de injuriâ fuâ propriâ absq. moiety of the value of the crops fold

tali caufá to a cognizance for rent in to B. without stating the special agree. arrear is bad upon fpecial demurrer. ment, and held that he might well do Jones v. Kitchin, T. 37 Geo.3.

fo, as the special agreement was exe

Page 76 cuted by the appraisement, and the 10. It is only to be received, where the action arose out of something collateral

defence set up is matter of excuse. to it. Poulter V. Killingbeck, E. ib.


39 Geo.3. 11. Not where any right or interest is 19. To debt for an escape, Defendant asserted. ib.


pleaded a negligent escape and vo12. Nor where the defence turns upon luntary return, fince which the pri

the plea of commandment; but the foner had been safely kept ; Plaintiff commandment must be answered. in his replication admitted the negliib.

gent escape and voluntary return, but 13. The master, wardens, and common- alleged that the prisoner had not been alty of a company cannot fue for a safely kept fince that time, having penalty forfeited to the master and

again efcaped, which was a different wardens to the use of the master, escape from that mentioned in the wardens and company.

Feltmakers' plea, and the same for which the Company v. Davis, M. 38 Geo.3. 98 action was brought ; Defendant in his 14. The first count in a declaration in rejoinder traverted the allegation that debt for a penalty under a by-law, set the prisoner had not been tafely kept, forth the charter empowering the com- and then pleaded to the latter part of pany to make by-laws, the by-law made the replication, as to a new assignment, and the breach of it ; the fecond count a negligent escape, voluntary return omitting the above particulars, ftated and safe keeping fince, in the fame the penalty as being forfeited under manner as in the plea ; this latter part and by virtue of a certain by-law of of the rejoinder was held bad on lpethe company before that time duly cial demurrer. Griffiths v. Eyles, made, &c." and this count on special E. 39 Geo.3.

413 demurrer was held bad. ib.

ib. 20. A plea that if the prisoner escaped 15. A pardon, if pleaded, muft be averred several times (withoutspecifying them) to be under the great feal. Bull v. he returned as often, is bad. ib. ib. Tilt, H. 38 Geo.3.

199 21. If bail plead the bankruptcy of their 16. If the lord set up a custom to have principal in their own discharge, they the best live or dead chattel as a

must plead it circumstantiaily, or it heriot ; Qu. if the tenant can modify

will be bad on special demurrer. that custom by pleading another, that Donnelly v. Dunn, T. 39 Geo.3. 448 the homage thall affefs a compensation 22. Or on general demurrer. Beddome

and Another v. Holbrook and Another, cliffe, T. 38 Geo.3.

282 17. The omission of " And thereupon the

T. 39 Geo. 3.

450 n. (6) said J. S. complains” in the beginning 23. Semb. That it cannot be pleaded at of a declaration of trespass on the ease,

all. ib.

ib, is no cause of special demurrer. Dob- 24. A. declared in case against B. for Son v. Sir W. Hearne, Knt. and An- finking his boat, and after averring a other, H. 39 Geo.3.

366 non-feafance in B. as the cause, stated 18. A. agreed with B. to let him land, him to have acted with great force and

rent free, on condition that A. should violence in accomplishing the injury; have a moiety of the crops; while the A. recovered, and on error brought crop was on the ground it was ap- because the action should have been praised for both parties : A. de- trespass, not case, and because the two olared in indebitatus affumpht for a actions were mixed, the Court referred


the concluding expressions to the non

PRACTICE, fealance stated, and held that the de- See AFFIDAVIT. claration would support the judgment. AMENDMENT,

No. 1. Turner v. Hawkins in Error, E.


Page 472 ATTORNEY, No.3. 25. In an action on a promissory note by Ball.

the indorsee against the maker, notice BAIL BOND.
of the indorsement need not be aver- BAIL PIECE. .
red. Reynolds v. Davis, M. 37 Geo.3. BANK Act, No. 1, 2.

625 BANKRUPT, No.10. 26. Non damnificatus cannot be pleaded BOND, No.1.

to debt on bond conditioned for the Courrs, No.1, 2.4, 5.
payment of a sum of money at a certain Costs.
day, though it appear by the conditions DISTRINGAS, No. 1, 2.
to have been given by way of indem- EXECUTION.
nity. Holmes v. Rhodes, H. 37 Geo.3. MISNOMER, No.4.

638 PENAL ACTIONS, No.1, 2 27. Debt op bond conditioned for J. S.

PRISONER. rendering account to the Plaintiffs of

PROCESS, No. 1. all monies which he should receive as

Right, Writ of. their agent. Defendant pleads per- REPLEVIN, No.3. formance in the words of the condi

TENDER, No. 1. tion ; Plaintiffs reply that J.S. received VARIANCE, No.2, 3, 4, 5, divers fums of money amounting to VENDITIONI EXPONAS, No.l. 2000l. belonging and relating to the VENUE. Plaintiffs' buliness as their agent, and VERDICT. hath not rendered to the Plaintiffs an USURY, No. 3. account of the said 2000l. or any part thereof; this replication being speci- 1. The Court will not put off a trial at ally demurred to for generality, was the instance of the Defendant, ou acheld sufficient. Shum v. Farrington, count of the absence of a material FtH. 37 Geo. 3

640 nefs, if he has conducted himseli un

fairly, or been the cause of any im. PLEDGE,

proper delay. Saunders v. Pitimer, E. 37 Geo. 3.

Page 33 See Bills of Exchange and PROMIS

2. The Court of C. B. will make the SORY Notes, No.1, 2, 3.

payment of cofts for not proceeding to

trial a term of discharging a rule w PLEDGES,

judgment, as in cale of a nonfuit. See Replevin, No.i.

Jolliffe v. Morris, E. 37 Geo.3. 3. The Court will set aside a regu

judgment on an affidavit of merits, POLICY,

though bankruptcy is intended to be See INSURANCE,

pleaded. Evans v. Gill, T. 37 Geo je

POWER, 1. If an eftate in fee be devised to a feme

covert, with a power annexed to dispose of the estate without the controul of her husband, fuch power is void, being inconfiftent with the fee given in the first instance. Goodhill v. Brigham, H. 38 Geo.3.


4. It is in the discretion of the Court to

put a Defendant under terms who moves to have the issues levied under several diftringas's restored to him ua his appearance according to 10 Geo. 0.50. 8.4. Cazalet v. Dubois, T. 37 Gco.3.


5. The


5. The Court will not grant an attach- to the Court by A. to stay proceedings

ment for non-performance of an award in the action against him by B. on his pending an action brought on the paying the fourth inftalment to such award ; nor allow the Plaintiff to wave perfon as they thould appoint, was the action in order to apply for the refufed. Macdonald v. Pafley, M. attachment. Badley v. Loveday, T.


161 37 Geo.3.

Page 81 14. If à party proceed against a De6. An order for the discharge of an in- fendant by action and indictment for

solvent under the Lord's act, f. 16. can- the same allault, the Court will not not be made by a Judge in Term time, compel him to make his election. Jones though fummonses were taken out in va- v. Clay, H. 38 G. 3.

191 cation, and the order only delayed till 15. Defendant before the action comthe beginning of Term by an irregu- menced quitted the kingdom, leaving larity in the affidavit. Hajkins v. Mor- another in possession of his houfe and ris, M. 38 Geo. 3:

92 goods; Plaintiff having served a sum7. The Court will give leave in the first mons to appear at the house, distrained

instance to enter up judgment on a the goods to compel an appearance; verdict reduced by an award. Hig- and held regular. Sir William Staines, ginfon v. Nesbitt, M. 37 Geo. 3. 97

Knt. and Another V. Johannot, H. 8. The Court will not order a bail-bond

31 Geo. 3.

200 to be delivered up to be cancelled, be- 16. The Court will not, by putting off a cause the place where the affidavit to trial or other indirect means, compel a hold to bail was sworn is not mentioned party to consent to a commission for in the jurat. Symmers v. Wafon, M. the examination of witnesses in Scot38 Geo. 3.


land. Calliandv. Vaughan, H.38 Geo.3. 9. A Defendant by perfecting bail above

was held to wave all objections arising 17: Where contradictory verdicts have from the bank act, 37 Geo.3. 6.45. to

been found on a policy of insurance, the fufficiency of the affidavit on which and a third action brought against anhe was held to bail. Chapman v. Snow, other under-writer, the Court will not M.38 G. 3:

put off the trial to enable him to apply 10. But length of time seems to be no such to a Court of Equity for a commission


waver. Fenwick v. Hunt, M. 38 Geo. 3. to examine witneffes in Scotland to the B. R.

same facts which were given in evi. 11. The Court will not allow a Defen- dence on the last trial. ib.

ib. dant to strike out the entry of a judg- 18. At least if he has obtained time to ment of nolle profequi entered by the plead on the usual terms. ib. ib. Plaintiff on one of the counts of the 19. It is not fufficient to stick up a declaration after it has been demurred notice of declaration in the office, if to. Milliken v. Fox and Another, M. the Defendant's last place of abode 38 G. 3.

157 be known; for it ought to be served 12. Nor will the Court in that stage of there. Holsten v.Culliford, H.38 Geo. 3. the proceedings determine a question

214 of costs respecting such a count. ib. ib. 20. To alumpfit on a bill of exchange, 13. C. by virtue of an order from B. to the Court will not allow a Defendant receive all money due to him on a par- to plead the general issue, and that the ticular account, obtains three out of bill was given on a tock-jobbing four instalments due from A. to B. transaction contrary to 7 Geo. 2. C. 8. on that account; these payments are Shaw v. Everett, H. 38 Geo. 3. 222 afterwards questioned by B. who brings 21. Nor the general issue and alien enemy his action against A. for the whole to a declaration on a policy of inlusum, and at the same time C. demands rance. Angerfiein v. Vaughan, H. the fourth instalment: An application 38 Geo. 3.

133 n.

ib. n. a.

22. The

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