60

of Pitcairn, a Bankrupt, v. Schultze and Another, 6. To a declaration on the money counts, the defendant pleaded in abatement, that he was an attorney of the Court of Queen's Bench, concluding with a verification. The plaintiff replied, that the defendant was also an attorney of the Court of Exchequer, concluding with a verification: Held, on general demurrer, that the replication was good in substance.

Semble, that both plea and replication should have concluded with a verification by the record. Walford v. Fleetwood,

65

7. Trespass. Plea, that plaintiff had covenanted, with a proviso for re-entry in case of breach, not to set over or otherwise part with his lease. Breach, that he did set over his lease, to wit, by pawning, pledging, and mortgaging the said indenture of lease to certain creditors; wherefore the defendant entered. Replication, that he did not set over the said indenture by pawning, pledging, or mortgaging the said indenture to the said supposed creditors: Held, that the replication was bad, it traversing an immaterial allegation laid under a videlicet, and therefore too large.

Another plea alleged that the plaintiff covenanted, with a proviso for re-entry in case of breach, that he would not sow, crop, receive, or take from the arable lands or any part of them, more than two crops of corn successively; but would every third year summer fallow or lay the arable land down with rye grass, and clover seeds, or plant with potatoes, or sow with peas or beans, which should be twice well hoed. Breach, that he did sow and take three crops of wheat successively, and that he did not every third year summer fallow or lay the arable, land with rye grass, and clover seeds, nor plant with potatoes, nor sow with peas, which were twice or at all well hoed; wherefore the defendant entered.

Replication, that plaintiff did not sow, crop, &c., more than two crops, &c. ; and did every third year summer fallow a part, &c., and lay down with rye grass, &c., another part, &c., and did sow another part, &c., with peas, and the residue of the arable land with beans, &c.: Held, on special demurrer, that the covenant against overcropping was distinct from that as to the mode of cultivation; that a breach of the former was well assigned, but not of the latter that the replication was good as to the former, and not vitiated by the reference to the latter. mond v. Colls,

Ham

164

8. Trover for hay, corn, carts, horses, &c.; tables, carpets, chairs, &c. Plea justifying the taking of the goods under a distress for rent. Replication, that the goods were beasts of the plough and implements of husbandry, and that there was other available distress: Held, on special demurrer, that the Court would take notice that several of the articles enumerated in the declaration could not possibly be beasts of the plough or implements of husbandry and that the replication was therefore ill. Davies v. Aston, Knight,

188

9. Count in trover for goods and chattels. Plea justifying the taking of them under a distress for rent. Replication, that the defendant had made a former distress for the same rent, on goods of sufficient value to satisfy the distress, and might have fully satisfied the rent out of the same; but that he wrongfully and vexatiously refused and omitted so to do. Rejoinder, that the goods and chattels, taken under the former distress, were not of sufficient value to satisfy the rent; and that the defendant afterwards lawfully abandoned and put an end to the distress, and that the rent was still in arrear. Surrejoinder, that the goods were of sufficient value: Held, on demurrer, that the replication was a good answer to the plea; for a landlord could not

make a second distress for the same rent, after wantonly abandoning a prior distress, where the goods taken under the first distress were of sufficient value to satisfy the rent: Held, also, that the plaintiff was entitled to judgment on these pleadings; for either the surrejoinder was good, if the rejoinder were to be read so as to make the insufficiency of the goods distrained the ground for abandoning the distress; or, if it could not be so read, the rejoinder was bad, for not shewing any lawful ground for relinquishing the first distress, and taking a second, so as to answer the matters alleged in the replication. Dawson v. Cropp, 225

10. To an action for goods sold, the defendant pleaded, that before the commencement of the suit, the plaintiff petitioned the Court for the relief of Insolvent Debtors, and that an order was made vesting his estate and effects in the provisional assignee of that Court. The plaintiff replied that the petition was dismissed, and the plaintiff discharged from custody, without taking the benefit of the act: Held, on special demurrer, that the replication was bad, for not alleging that the petition was dismissed before the commencement of the suit. Yorston v. Fether,

297

11. To a declaration in debt for goods sold and delivered, and on an account stated, the defendant pleaded, that by a certain indenture bearing date, &c. (profert) the plaintiff released to the defendant the debts and causes of action in the declaration mentioned. The plaintiff replied non est factum, on which issue was joined: Held, that the plaintiff under this replication could not give in evidence that the debt for which the action was brought was not included in the release; but should have new assigned. Jubb v. Ellis,

364

12. Trespass to a mill, fixtures, &c. Plea, that the defendants, as assignees of a bankrupt, became possessed of the

term in the mill, and the fixtures, &c. Replication, that the bankrupt, before his bankruptcy, mortgaged the mill and fixtures, &c. to R., who entered: that it was afterwards, and before the bankruptcy, agreed between the plaintiff, the bankrupt, and R., that the plaintiff should accept a lease of the premises, and purchase the fixtures, &c., whereupon the plaintiff entered: Held, on special demurrer, that the replication was not ambiguous or double. Pim v. Grazebrook and Another,

454

13. In trespass for false imprisonment, the defendant justified under a ca. sa. issued on a judgment obtained against the plaintiff. Replication, that the judgment was signed on a warrant of attorney, and that the judgment and ca. sa. were set aside by a Judge's order which was afterwards made a rule of Court; on the ground that the warrant of attorney was never delivered as a complete authority to do or suffer any of the acts therein specified, but as an escrow to be kept by the plaintiff in his own possession till a certain event should happen : that the defendant, by improper contrivance, obtained and kept possession of it, without the plaintiff's consent; Held, first, that the replication was good, as it sufficiently appeared that the judgment was set aside, not on the ground of its being erroneous, but on the ground of irregularity, or want of good faith. Secondly, that it was not necessary to allege that the order was made a rule of Court before the commencement of the suit. Thirdly, that nul tiel record was not the proper replication to such plea. Brown v. Jones and Others, 678

REQUEST.

See DECLARATION, 8. PLEA, 6.

RETAINER.

See DECLARATION, 5.

SECURITY FOR COSTS.
RULE (TO COMPUTE).

See SERVICE (OF RULE)

Judgment for the plaintiff on demurrer having been signed in an action of covenant against the defendant as sequestrator, who was bound to pay over to the plaintiff all such sums as should be received by him in his character as sequestrator, in satisfaction of a debt owing to the plaintiff, the Court refused to refer it to the Master to compute the amount of damages to which the plaintiff was entitled, Smith v. Nesbitt,

420

1. A sheriff who takes in execution a lease for years, has no right to remain on the premises for the purpose of executing an assignment, and putting the purchaser in possession. If he should do so, he is liable in trespass at the suit of the execution debtor, if in possession; although the premises have been sold and transferred.

Where a lease is taken in execution by the sheriff, the interest in it remains in the execution debtor until actual assignment to the purchaser. Playfair v. Musgrove and Another,

72

2. A sheriff having seized certain horses which were claimed by a third party, an interpleader order was made, that on payment of a sum of money into Court, and "possession money"

874 SHERIFF (EXPENSES OF).

from the date of the order, the sheriff should withdraw from possession.

Held, that the sheriff had no right to detain the horses for the expense of their keep; but should have applied to the Judge to allow those expenses. Gaskell v. Sefton the Younger, 267

3. An attachment having issued against the sheriff for not bringing in the body, the same was ordered to be set aside, on payment of costs and perfecting special bail. Those terms not having been complied with, a habeas issued directing the coroner to bring up the body of the sheriff. The under sheriff then paid to the plaintiff the amount of the penalty of the bail bond (being double that of the debt), and costs: Held, that the plaintiff was only entitled to retain the sum indorsed on the writ and costs. The Queen v. The Sheriff of Middlesex,

472

4. A sheriff having applied for relief under the Interpleader Act, a Judge directed the goods to be sold, and the money paid into Court, to abide the event of an issue between the claimant and execution creditor. A verdict being found for the claimant, he then brought an action against the sheriff for breaking and entering his dwelling-house, and seizing and converting his goods. The Court ordered that so much of the declaration as charged the defendant with seizing and converting the goods, should be struck out. Abbott v. Richards, 487

5. Where an under-sheriff, before whom a writ of inquiry is executed, certifies under the 3 & 4 Vict. c. 24, s. 2, he may do so in the name of the high sheriff; and semble, that it ought not to be signed in his own name. Stroud v. Watts,

799

SHERIFF (EXPENSES OF).

See SHERIFF, 2.

STAYING PROCEEDINGS.

SHEWING CAUSE (IN FIRST INSTANCE).

See COSTS, 1.

SIGNATURE OF COUNSEL. See COUNSEL'S SIGNATURE.

SLANDER.

See PLEAS (SEVERAL).

SPECIAL CASE.

See AMENDMENT, 2.

SPECIAL JURY.

A cause having been set down for trial in Middlesex, and a rule obtained for a special jury, the parties agreed that the venue should be changed to London, and the cause tried by a special jury there, and that all costs occasioned by that arrangement should be costs in the cause. The cause came on for trial in London, and was referred to arbitration, the arbitrator to have the same power to certify as a Judge at nisi prius. The award was made on the 6th of August, and after the first four days of the following Term, the arbitrator certified for a special jury: Held, first, that the certificate was too late; secondly, that the successful party was entitled to the additional costs of the special jury occasioned by the change of venue from Middlesex to London. Gorton,

STAMP.

See REJOINDER.

Geeve v.

481

STATUTE OF LIMITATIONS.

See PLEA, 5.

STAYING PROCEEDINGS.

See COSTS, 2.

STAY OF PROCEEDINGS.

1. The plaintiff agreed with the defendant to withdraw the record in an action on two cheques which stood ready for trial in the Exchequer, upon the terms that the defendant should pay the debt, interest, and costs, on or before a certain day, or in default of payment, that the plaintiff should be at liberty to sign judgment, and that a Judge's order should be given to secure payment. The Court of Exchequer having afterwards set aside the Judge's order, which had been made in pursuance of the above agreement, the plaintiff brought an action on the agreement in this Court: Held, that these facts formed no ground for staying the proceedings in the action in this Court. Wade v. Simeon, 27

2. A sub-lessee is a tenant of premises within the meaning of the stat. 4 Geo. 2, c. 28, s. 4, and is therefore entitled to a stay of proceedings upon payment into Court of the rent in arrear and costs. Doe dem. Wyatt v. Byron,

31

3. An action was brought by a wife against her husband, on a settlement deed, in the name of the trustee under that deed. The Court refused, on the application of the defendant, to set aside the proceedings, on the ground that the action was brought without the authority of the trustee; it appearing that an application had been made to the trustee to consent to her name being used, and an indemnity against costs offered to her, which she had refused, without assigning any reason. Auster v. Holland,

STAY OF PROCEEDINGS.

See SERVICE of Order.

740

142

1. Where an action was brought by the plaintiff, an attorney in the country, to recover a bill of costs against the defendant, who was the solicitor to the Post-office, for business done in conducting the prosecution of an individual at the suit of the Postmaster general, for forging a Post-office order; for which purpose he had been employed by the defendant: Held, that the Court had no power to refer the bill for taxation; and that the fact that the plaintiff had debited the defendant with the whole of the charges, did not the less render it a bill for agency business. In re Simons, and in a cause between 156 Simons and Peacock,

2. Where an attorney is retained by a surveyor acting under the High. way Act, the parties who contribute to a rate out of which the attorney's