Replications (Continued.)
replication was informal and insufficient, even supposing the
general replication de injuriâ to be applicable to an action of as-
sumpsit; for, it did not admit the promise and excuse the non-
performance of it, but in effect denied that the promise was ever
made. Whittaker v. Marson, 567.
5. The general replication de injuriâ may be pleaded in assump-
sit in answer to a plea consisting merely of matters of excuse.
Griffin v. Yates, 845.
6. The plaintiff declared upon an agreement whereby the plain-
tiff agreed to buy and the defendant agreed to sell a horse to the
plaintiff for 2001. provided he trotted eighteen miles within one
hour, within one month from the date of the agreement, and J. N.
to be the judge of the performance; and if the task was not per-
formed, the horse was agreed to be thereby sold to the plaintiff
for one shilling-averring that the horse was tried by the defen-
dant in the presence of J. N., and failed. The defendant pleaded,
amongst other things, that the horse could and would have trotted
the required distance within the hour, but one A. B., then being
the servant of the plaintiff, wrongfully and wilfully as the servant
and agent of the plaintiff, interrupted the trotting of the horse, &c.
The plaintiff replied, that A. B. did not, as the servant or agent
of the plaintiff, interrupt the trotting of the horse, &c.:-Held,
that the allegation in the plea was properly traversed. Brogden
v. Marriott, 703.
7. The defendant further pleaded, that, after the trial in the
declaration mentioned, and within one month from the date of the
agreement, to wit, on &c., he was ready and willing to try the
horse, and
gave reasonable notice to the plaintiff and J. N. of such
intended trial, and of the time and place at which the same was
to take place; and that J. N. was requested by the defendant to
be the judge of the performance at such trial; but that J. N. then
and at all times afterwards during the month refused to attend;
whereby the horse was prevented from trotting in the presence of
J. N. eighteen miles within the time limited:-Held ill, on special
demurrer: for that, inasmuch as the condition the performance of
which was to entitle the defendant to the advanced price was a
condition for his benefit, the onus of procuring its performance
rested upon him. Id.
Declarations-see CASE, 2, 4-SLANDER, 2, 3.
Pleas—see Case, 4—Slander, 5, 6.
8. To a count in debt by the assignees of a bankrupt for money had
and received by the defendant to the use of the plaintiffs as assignees
PLEADING.
DEBT-(Continued.)
(not stating whether received before or since the bankruptcy), the
defendant pleaded a set-off for money due to him on an account stated
with the bankrupt before his bankruptcy:-Held, that the plea was
bad, for that it did not shew that the debts were mutual. Groom
v. Mealey, 171.
9. In trespass for breaking and entering the plaintiff's close, the
defendant pleaded that the close was not the close of the plaintiff:-
Held, that evidence of possession was sufficient to entitle the plaintiff
to a verdict. Heath v. Milward, 160.
In Actions by or against particular Persons-see EXECUTORS AND ADMINIS-
TRATORS, 2.
Time for pleading—see PRACTICe, 12.
As to Amendment of Pleadings-see AMENDMENT.
PLENE ADMINISTRAVIT-see EXECUTORS AND ADMINISTRATORS, 4.
POWER.
Of Appointment-see DEVISE, 7.
1. In a capias into London, the direction to return the writ was
addressed to "the said sheriff:"-Held, no ground for setting aside
the writ. Irving v. Eaton, 798.
2. In the indorsement on a writ of summons, the residence of the
attorney stated thus-"No. 1, Clifford's Inn Passage, Fleet Street,
in the city of London," without mentioning the parish-is sufficient.
Arden v. Garry, 186.
3. A distringas to compel appearance cannot issue after the expira-
tion of the writ of summons. Lemon v. Lemon, 506.
Payment of Money into Court in Lieu of Bail.
4. On the removal of a cause by certiorari from the Lord Mayor's
Court, the defendant is not at liberty under the 7 & 8 Geo. 4, c. 71,
s. 2, to pay money into court in lieu of putting in and perfecting
special bail. Morgan v. Pebrer, 854.
Time for moving for Irregularity.
5. An objection to the regularity of the writ of summons (in right)
was first taken on the 24th April, as the knights were about to be
The court directed the tenant to make a substantive motion
on the subject. The motion was not made until the 12th May:-
:-
Tindal, C. J., and Park, J., seemed to think the motion too late.
Miller, dem., Miller, ten. 116.
6. The defendant was arrested on the 12th May, carried to gaol on
Time for moving for Irregularity-(Continued.)
the 15th, and a declaration delivered on the 20th:-Held, that an ap-
plication on the 4th June to discharge him out of custody on the
ground that he had been carried out of the county and there de-
tained two days before he was taken to the county gaol, was too late.
Fownes v. Stokes, 205.
7. Semble that the 33rd rule of Hilary Term, 2 Will. 4, as to the
time for moving on the ground of irregularity does not apply with
equal strictness to the case of a prisoner as to that of a defendant at
large. Taylor v. Slater, 839.
8. Where a defendant is held to bail or detained by virtue of a judge's
order, he is not bound to apply either to the same or to another judge
at chambers, to rescind the order, or to discharge him from custody,
on the ground of defects in the affidavit of debt: the application is
properly delayed till the court is sitting. Johnston v. Kennedy, 410.
Setting aside and staying Proceedings.
9. In the absence of any suggestion of collusion between the lessor
of the plaintiff and the tenant, the court will not set aside a regular
judgment in ejectment, in order that the landlord may be let in to
defend. Doe d. Thompson v. Roe, 181.
10. To entitle a defendant to a stay of proceedings on payment of
the debt and costs indorsed on the writ, under reg. II. of Hilary Term,
2 Will. 4, such payment must be made within the four days limited
by the rule. Bowdidge v. Slaney, 197.
11. The plaintiff delivered to the defendant as solicitor for one N.,
a bill for goods sold, making (as the defendant alleged) N. his debtor,
and afterwards surreptitiously withdrew it and substituted another,
making the defendant his debtor. In an action against the defen-
dant for the amount, the court ordered the proceedings to be stayed
until the plaintiff should have delivered a copy (the original having
been destroyed) to the satisfaction of the prothonotary. Edgington
v. Nixon, 507.
12. The declaration was delivered on the 12th January, with notice
to plead in four days; on the 13th the defendant obtained a judge's
order for "seven days' time to plead," upon an undertaking to accept
short notice of trial for the last Sitting in the term, the 26th :-Held,
that the seven days commenced from the date of the order, and not
from the expiration of the four days. Simpson v. Cooper, 840.
Striking out Demurrer.
13. The court refused at the instance of the plaintiff, to allow a de-
murrer to be struck out of the paper, on the ground that, since it had
been set down, the defendant had become bankrupt, and his assignees
refused to take up the defence or to give security for costs. Flight v.
Glossop, 223.
Motions under the Interpleader Act, 1 & 2 Will. 4, c. 58.
14. Against a rule obtained by the sheriff under the interpleader act
-Held, that cause may be shewn at chambers. Haines v. Disney, 183.
Sed quære.
15. The court has no power to order rules made under the inter-
pleader act, 1 & 2 Will. 4, c. 58, to be entered in any other manner
than as pointed out by the 7th section, viz. according to their true
date. Lambirth v. Barrington, 263.
As to costs on motions under this act-see COSTS, 7.
16. By a canal act, it was provided that the directors should keep
books, and that the proprietors, land-owners, and others interested in the
navigation, should be at liberty to inspect the company's books:-
Held, that a bond-creditor was entitled to such inspection, to enable
him to meet the defence intended to be set up by the company in an
action upon the bond. Pontet v. The Basingstoke Canal Co. 543.
Delivery of Issue.
17. In causes to be tried before the sheriff, the issue must be de-
livered as in other cases. Arden v. Garry, 188.
Notice of Trial.
At Nisi Prius.
18. Where there were several pleas, on some of which issue was
joined, and as to one a demurrer upon which judgment was
given for the defendant four days before the end of Easter Term-
The court refused to allow the defendant to sign judgment as in
case of a nonsuit in Trinity Term, on the ground of the want of
a notice of trial for the adjournment day of the Sittings after
Easter Term. Leslie v. Guthrie, 331.
19. That a notice of trial before the sheriff is given for a day not
fixed for trying issues, is no ground for moving to set it aside.
Arden v. Garry, 188.
Signing and entering Judgment.
20. To debt in a county court for 33s., the defendant pleaded nil
debet except as to 17. 12s. 5d., and as to that sum a tender. The jury
found that the defendant did not owe anything except as to the
17. 12s. 5d., and, as to that sum, they found specially certain facts
upon which judgment was entered for the defendant in the county
court. Upon a writ of false judgment, this court reversed the judg-
ment of the court below, holding that the circumstances found by
the jury did not amount to a tender. The court allowed the plaintiff
to enter up judgment for the debt and also for the costs in the court
below, to be taxed by the prothonotary. Finch v. Brook, 511.
21. The costs having been taxed and an allocatur signed upon the
Signing and entering Judgment—(Continued.)
rule, the plaintiff sued out a writ of fi. fa. and levied thereunder the
debt and costs. The court ordered it to be set aside, no judgment hav-
ing been entered up or signed to warrant it. Ib. 517.
Judgment as in Case of a Nonsuit.
22. In answer to a rule for judgment as in case of a nonsuit, the
plaintiff's attorney swore that he had not added the similiter, nor had
it been added to his knowledge or belief:-Held, a sufficient answer.
Martin v. Martin, 389.
See also AMENDMENT-ARREST-SCIRE FACIAS.
PREROGATIVE ADMINISTRATION-see ECCLESIASTICAL LAW. :
PRESUMPTION-see TAXES, 5.
Assignment under the Lords' Act.
1. In ejectment, where the lessor of the plaintiff claims title
under an assignment for the benefit of creditors under the lords'
act, 32 Geo. 2, c. 28, ss. 16, 17, it seems that the assignment indorsed
on the schedule and the rule for the prisoner's discharge are sufficient
to establish the title of the lessor of the plaintiff: at all events, it is
not necessary to prove the steps preliminary to bringing the prisoner
before the court; the rules of court under which he was brought up
and remanded can alone be required. Doe d. Milburn v. Edgar, 581.
2. An incorrect or over large statement of the trusts of the assignment
will not vitiate the instrument: probably, an entire omission to state
any trusts would not have that effect. Id.
3. All the prisoner's property passes under the general words of
the assignment, and not merely that which is specifically pointed out
in the schedule. Id.
Motion for Discharge of, from irregular Custody.
4. Semble that the 33rd rule of Hilary Term, 2 Will. 4, as to the
time for moving on the ground of irregularity, does not apply with
equal strictness to the case of a prisoner as to that of a defendant at
large. Taylor v. Slater, 839.
But see Fownes v. Stokes, 205.
PRIVITY OF CONTRACT-see MONEY HAD ANd received.
PROMISSORY NOTES-
PROMOTIONS,
PROTHONOTARY.
-see BILLS OF EXCHANGE AND PROMISSORY NOTES.
Practice on Reference to.
1. Upon a reference to the prothonotary to ascertain a disputed
fact, a party cannot after a term has elapsed since the determination
of the prothonotary was pronounced, have the matter referred back
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