will not refer it to the
Master
HE defendant having suffered judgment to go by default, the plaintiff obtained a rule, calling on the defendant to (after judg- shew cause why it should not be referred to the Master to comment by default) to see pute what was due for principal and interest on the two prowhat is due missory notes on which the action was brought.
for princi-
pal and in-
terest, on
an affidavit
stating
that the ac-
tion is
brought to
recover the
amount of a promissory note, unless it
appear on
the decla
ration, that
such is the cause of action.
Gaselee now shewed cause against it; and he said, That this application was not warranted by any of the decisions on the subject, because here it did not appear on the record that the action was brought on any promissory note; the counts in the declaration being for goods sold, work and labour, money paid, and money had and received, &c.
Hotell, in support of the rule, said, That it appeared, by an affidavit which he produced, that the action was brought to recover the amount of two promissory notes; and that the plaintiff might recover the amount of them on the money-counts. But
The Court said, That the rule for referring it to the Master, to see what was due for principal and interest on promissory notes and bills of exchange, should be confined to those cases where it appeared, on the declaration, that the action was brought on the notes or bills. Therefore, they
want of care in the master, nor even
in such case beyond 10l. per cent.,
unless extra freight were paid, the
master of one of the ships took on
board the plaintiff's goods to be car-
ried from B. to A. (an intermediate
place between A. and C.) and de-
livered at B.; the vessel passed by
B. without delivering the plaintiff's
goods then, and sunk before her ar-
rival at C. without any want of care
in the master: held that the owner
of the vessel was responsible to the
plaintiff for the whole loss in an ac-
tion on the contract.
Ellis v.
Turner, E. 40 G. 3. Page 531
ADJOURNMENT,
See JURISDICTION, No. 4.
AFFIDAVIT,
See PRACTICE, No. 32.
AFFIDAVIT TO HOLD TO BAIL,
See PRACTICE, No. 9, 10.
1. An affidavit to hold to bail stated that
the debt arose on a bill of exchange
or order for, &c. drawn by A. upon
and accepted by the defendant, pay-
able to the plaintiff; upon this affi-
davit alone the Court refused to or-
der the bail bond to be delivered up.
Wilks v. Adcock, M. 39 Geo. 3. 27
2. But, the instrument declared upon
appearing not to be a bill of exchange,
the Court, on reading the affidavit
and the declaration, ordered the bail
bond to be given upon the defend-
ant's filing common bail. Page 27
3. In an affidavit to hold to bail, made
by the plaintiff's agent (the plaintiff
himself being abroad) it is sufficient
to negative a tender of the debt in
bank notes, 66 as the agent believes."
Munro v. Spinks, T. 39 G. 3.
4. It is sufficient to state in an affidavit
to hold to bail, that the defendant is
indebted to the plaintiff in such a
sum, for money had and received
on account of the plaintiff," without
adding" received by the defendant."
Coppinger v. Beaton, M. 40 G. 3. 338
5. A co-assignee of a debt, arising out
of bills of exchange in his own pos-
session, may sue in the name of the
original creditor, and hold the de-
fendant to bail on his own affidavit,
swearing positively as to all the facts
required, which are within his own
knowledge, and to the best of his
knowledge and belief, as to such as
are within the knowledge of his prin-
cipal and co-assignees. Creswell v.
Lovell, M. 40 Geo. 3.
418
6. In an affidavit to hold to bail, made
by the assignee of a bankrupt, it is
necessary to negative a tender of the
debt in bank notes to the bankrupt
before his bankruptcy; saying, that
no such tender was made to the as-
signee is not sufficient. Martyn v.
Ranoe, H. 40 G. 3.
455
7. In an affidavit to hold to bail, made
by the plaintiff's clerk (the plaintiff
himself residing in England) it is not
sufficient to negative a tender of the
debt in bank notes, "to the know-
ledge and belief of the clerk." Cass
v. Levi, E. 40 Geo. 3.
See AWARD, No. 2, 3. OFFICE, No. 1,
2, 3, 4.
See INSURANCE, No. 14. PLEADING,
No. 9. PRACTICE, No. 6, 7.
AMENDMENT,
See REMOVAL, Order of, No. 3.
The Court will not permit any amend-
ment to be made in a penal action,
where the plaintiff has been guilty of
any delay in carrying on the suit.
Rankin v. Marsh, M. 39 G. 3. P.31
AMERICAN TREATY.
Under the late treaty between this
country and the United States of
America, it is not necessary that the
trade from America to our settle-
ments in the East Indies should be
direct; it may be carried on circuit-
ously, by the way of Europe. Wil-
son v. Marryatt, M. 39 G. 3.
2. A natural born subject of this country
may also be a citizen of America for
the purposes of commerce, and en-
titled to all the advantages of an
American under this treaty: the cir-
cumstance of his coming over here
for a temporary purpose, does not de-
prive him of those advantages.
See PLEADING, No. 15.
ANCIENT DEMESNE,
1. The Court set aside the annuity
deeds, because one of the trust (viz.
that in case the grantor should leave
the kingdom, he should pay an extra
expence of the grantee in insuring
his life) was not stated in the me-
morial. Cummins v. Isaac, E. 39
G. 3.
The memorial should contain the
whole res gesta. Ib.
The trusts in an annuity deed must
be stated accurately in the memorial.
Taylor v. Johnson, E. 39 G. 3.
Therefore where, in the conveyance
of a life interest in an estate to a
trustee in trust for securing an an-
nuity, it was first stipulated that the
trustee should permit the grantor to
receive the rents and profits till de-
fault made in payment of the annuity,
and then in trust for the grantee, and
in the memorial it was stated that the
trust was for the grantee generally,
it was holden that the deed was
void.
ib.
5. If the consideration for granting an
annuity be to be paid by a banker's
check, it is necessary to state the par-
ticulars of that check in the memorial.
Poole v. Cabanes, M. 40 G. 3. 328
6. If the grantee of an annuity pay it
without objection during the lifetime
of the person who negociated the
business for the grantee, the Court
will set aside the annuity deeds on
a representation of facts that could
only have been answered by such
agent for the grantee. Page 328
7. A grant of a rent charge by a rector
or vicar out of his benefice, is void
by stat. 13 Eliz. c. 20. Mouys v.
Leak, M. 40 Geo. 3.
411
8. But if in such a deed of grant he
also covenant personally to pay the
said rent charge or annuity, and give
a warrant of attorney to confess judg-
ment as a collateral security, the
Court will not order the deeds to be
delivered up to be cancelled. ib.
9. In the memorial of such a grant, it
is not necessary to state the grantor's
covenant to pay the annuity ib.
10. If it be agreed by the grantor and
grantee of an annuity, that the former
shall pay the expences of the writ-
ings, and he immediately after receiv-
ing the consideration money, pay the
fair charges of the writings out of
that money, no notice need be taken
of it in the memorial; but it may be
there stated, that the whole considera-
tion-money was paid to the grantor.
See SETTLEMENT BY APPRENTICESHIP.
See BANKRUPT, No. 10, 12. SHERIFF,
No. 2. WARRANT.
ASSIGNMENT OF DEBTS,
See AWARD, No. 5, 6, 7. BOND, No. 2.
ASSIGNING BREACHES,
See PLEADING, No. 4, 5.
1. If A. recover in tort against two de-
fendants, and levy the whole damages
on one, that one cannot recover a
moiety against the other in an action
for money paid to his use. Merry-
weather v. Nixon, E. 39 Geo. 3.
Page 186
Aliter, if A. recover in assumpsit
against two.
ib.
The goods of a stranger, on the pre-
misses of another person, were dis-
trained by the landlord for rent in
arrear, and the stranger obliged to
pay the rent to redeem them: held
that the stranger might maintain as-
sumpsit for money paid to the use of
the original lessees, who were bound
by their covenants to their landlord,
although some of them had, to the
knowledge of the plaintiff, before he
placed his goods on the premisses, as-
signed their interest to one of their
co-lessees, who was in the exclusive
possession at the time. Exall v. Par-
tridge, Tr. 39 G. 3.
4. But A. cannot, by the voluntary
payment of B.'s debt, raise an as-
sumpsit against B. Ib.
310
Under a limitation in a marriage set-
tlement, a Court of Law held, that
the wife took an estate tail; and
though it was recited in the deed that
the husband's father conveyed, in
consideration of the marriage, and
"for settling and establishing the
lands to the uses thereinafter ex-
pressed," and subsequent uses were
added in the deed, yet the Court
would only take notice of the legal
estate; and the husband and wife
having levied a fine, and having
agreed to sell the estate to a pur-
chaser, from whom they have re-
ceived part of the purchase-money,
the Court would not permit the pur-
chaser to recover back the deposit-
money in an action for money had
and received. Alpass v. Watkins,
E. 40 Geo. 3.
6. The plaintiff, having submitted to
arbitration certain matters between
his principals (from whom he had a
power of attorney, assigning their
right in the subject matter to him,
and empowering him to submit the
same to arbitration) and the defend-
ants, and a sum being awarded to him
as such attorney; held that he might
maintain assumpsit upon the award
in his own name. Banfill v. Leigh,
E. 40 G. 3.
Page 571
7. And it is not necessary in such ac-
tion, for the plaintiff in setting forth
the assignment to him for his princi-
pals, to make a profert of the same
in his declaration.
8. Where money, deposited upon an il-
legal wager, has been paid over to the
winner, by the consent of the loser,
the latter cannot afterwards maintain
an action against the former to reco-
ver back his deposit. Howson v. Han-
cock, E. 40 Geo. 3.
9. The assignee of a Scotch bond may
maintain an action of assumpsit here
against the obligor, in his own name.
Innes v. Dunlop, T. 40 Geo. 3.
10. A broker, who contracts with others
for the sale of stock at a future day,
by the authority of his principal, who
afterwards refuses to make good the
bargain, cannot, by paying the dif-
ference to such third persons, main-
tain an action on an implied assumpsit
against his principal for the amount,
though the broker did not disclose
the name of his principal at the time
of the bargain made. Child v, More-
ly, T. 40 Geo. 3.
610
11. But such purchasers may maintain
an action for the difference against
the principal, notwithstanding the
statute, 7 Geo. 2. c. 8. s. 7. ib.
ATTACHMENT,
See AWARD, No. 1.
1. A rule nisi for an attachment for
non-payment of money, pursuant to
the Master's Allocatur, cannot be
served on a Sunday. M'Ileham v.
Smith, M. 39 Geo. 3.
2. A subpoena may be issued from the
Crown Office, requiring a witness to
attend at the assizes in the country,
to give evidence in support of an in-
tended prosecution for a felony; and
B. R. will grant an attachment
against him for not attending accord-
ingly. R. v. Ring, E. 40 G. 3. 585
ATTORNEY,
See PRACTICE, No. 25.
1. When both parties are attornies of
the same Court, the plaintiff cannot
hold the defendant to bail. Nichols v.
Earle, M. 40 Geo. 3. Page 395
2. If he do, the Court will discharge
the defendant out of custody, and
order all the proceedings to be stayed,
without costs.
ib.
3. An attorney has no privilege against
foreign attachment. Ridge v. Hard-
castle, M. 40 G. 3.
ATTORNEY, POWER OF,
See AWARD, No. 5, 6, 7.
See CHARTER-PARTY, No. 1.
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