bill is paid, are not "persons liable to pay the bill;" so as to entitle them to apply for its taxation, under the 6 & 7 Vict. c. 73. In re Barber, 244

3. An attorney on being retained to bring an action, gave the following undertaking: "Should the damages or costs not be recoverable in this action, under the circumstances, I shall charge you costs out of purse only." The plaintiff obtained a verdict, with 600l. damages, for which | sum and costs, judgment was entered up. The defendant took the benefit of the Insolvent Act, and the dividend on his estate awarded to the plaintiff was 2721. odd. The Master, on taxation, allowed the attorney costs out of pocket only, but referred the matter to a Judge, who directed the taxation of costs out of pocket only. A second summons was taken out before the same Judge, to review the taxation, and dismissed. Held, first, that the party was not precluded from appealing to the Court; and, secondly, that the taxation was incorrect. Stretton,

TRAVERSE.

See REPLICATION, 6.

TRESPASS.

In re

278

1 Trespass will not lie against a plaintiff who, without notice, takes a defendant in execution for a debt in respect of which the latter has been discharged under the Irish Insolvent Act.

But if the plaintiff maliciously sue out the writ, he is liable to an action on the case. Ewart v. Jones, 252

2. Trespass will not lie against a plaintiff or his attorney for suing out execution, and arresting thereon a defendant who has obtained an order for protection from process under the

5 & 6 Vict. e. 116. Yearsley v. Heane and Hudson, note (a), 265

TRIAL (POSTPONEMENT OF).

See CROWN, 1.

UMPIRE.

See ARBITRATION, 2.

UNDERTAKING (TO GIVE MATERIAL EVIDENCE). See VENUE, 2.

VARIANCE.

1. In an action on a guarantee, the declaration stated a promise by the defendant that in the event of A. M. making default in payment of a sum of money, he the defendant would immediately on such default, pay the same to the plaintiff. In the guarantee itself, the terms were "in the event of A. M. making default, I will, immediately upon such default being made, and a letter being sent to me addressed, &c., giving me notice of such default, pay, &c.:" Held, that there was a material variance between the declaration and the guarantee ; the former alleging an absolute promise to pay on default, while the promise in the latter was coupled with the condition of sending a letter, &c., which was a material qualification. Higgins v. Dixon,

124

2. "In consideration of advances made and to be made by T. C. and S. C.," " or by any other persons of whom their firm may from time to time consist, to F. we jointly and severally hereby guarantee to the said T. C. and S. C. the repayment of the said advances, and to indemnify them against any loss by reason of such advances, our liability not to exceed the sum of 1000l. This guarantee to be a continuing guarantee, and to

be a security to the said T. C. and S. C. to the extent of 1000l. as aforesaid, for the whole of any balance which may from time to time, or at any time, become due to the said T. C. and S. C., or to the persons for the time being constituting the firm of the said banking-house:" Held, that this guarantee disclosed a good consideration for the promise to pay past as well as future advances, the future advances having been made. T. C. and S., C. declared upon this guarantee, and alleged that past advances had been made, and that in consideration of the advances so made, and that the plaintiffs would from time to time make advances to F., the defendant and one H. jointly and severally guaranteed to the plaintiffs the repayment of the said last mentioned advances, that the said guarantee should be a continuing guarantee to the extent of 1000l. for the whole of any balance which might become due to the plaintiffs, or to the persons for the time being carrying on the said trade or business. The declaration then averred that advances were afterwards made by the plaintiffs to F.: Held, first, that there was a variance in the statement of the consideration, as it was the making advances by the plaintiffs, or any persons who might constitute the firm; secondly, that there was variance in the statement of the promise, it being to pay what might be due to the plaintiffs, or those persons who might constitute the firm; thirdly, that those variances might be amended by a Judge sitting at nisi prius; fourthly, that a term in a special case that the Court should be at liberty to amend any part of the pleadings as they might think proper, gave no additional power beyond that possessed by a Judge at nisi prius. Chapman and Another v. Sutton, 646

a

VENUE.

See DECLARATION, 2.
SPECIAL JURY.

1. The 5 & 6 Wm. 4, c. 76, s. 109, places the cities therein named in the same position as if they had not been excluded by the 38 Geo. 3, c. 52, s. 10, from the operation of the 1st section of that act. Cole v. Gane,

369

2. The venue in an action for criminal conversation was laid in Middlesex, and having been removed to Somersetshire, was brought back on the usual undertaking to give material evidence in M. It was proved at the trial, that the plaintiff had taken. lodgings in S. under an assumed name, and that the letter by which the landlady of the lodgings accepted his proposal to become her tenant, was sent to him in M. at a hotel where he was stopping; that he afterwards wrote a letter bearing a post mark such as a letter sent from M. would bear while stopping at the hotel, directing his apartments in S. to be prepared; that the plaintiff's wife met the defendant at those lodgings in S., where the adultery was committed: Held, by Tindal, C. J., Maule, J., and Cresswell, J., (Erle, J. dissentiente), that the evidence fulfilled the undertaking. Held also by the whole Court, that it was not necessary to shew that any part of the adultery had been committed in the county of Middlesex.

Query, whether the defendant was bound to produce the undertaking at the trial in order to raise the objection as to the insufficiency of the evidence. Clarke v. Dunsford,

618

3. The 7 & 8 Geo. 4, c. 29, s. 34, enables the owner of a fishery or his servants to take into custody any person unlawfully fishing therein. The plaintiff was fishing near a spot where P. had a private right of fishery, where the servants of P. seized the

On the trial of a cause before the sheriff, under a writ of trial, a verdict was taken by consent of the parties, subject to a reference. Owing to the absence of the referee from town, the reference could not be gone into. The plaintiff accordingly gave notice that he abandoned the former verdict, and that he should proceed to try the case de novo; which he accordingly did in the defendant's absence, and obtained a verdict: Held, that the second verdict was irregular, and must be set aside; and that the first ought not to stand, as it was subject to a reference, which had proved abortive, and which the sheriff had no power to order, Harrison v. Greenwood, 353

1. A warrant of commitment of a bankrupt for not giving satisfactory answers, recited the issuing of a fiat "directed to her Majesty's Court of Bankruptcy for the Leeds district" against J. R.; and that J. R. duly surrendered" to M. J. West, Esq., one of the commissioners of the said Court authorized to proceed with the said fiat." It then stated several examinations before M. J. W., Esq., after "being duly sworn," and proceeded thus; "And whereas the said J. R. did on," &c. "pursuant to a summons issued by me at the request," &c. "of the assignees," &c., 66 appear before me the commissioner then acting in the prosecution of the said fiat," "to be examined," &c. "And I, W. Burge, Esq., the said commissioner, in execution of the powers," &c., " proceeded to examine the said J. R.," &c., "and the said J. R. being then duly sworn and required before me to make true answers," &c. The warrant then set out several questions and answers, and other adjournments and examinations, where the bankrupt was stated to be 'duly sworn;" ""which answers not being satisfactory," &c., "these are therefore," &c. Given," &c., "at

66

WARRANT.

the Court of Bankruptcy for the Leeds district," &c. Signed, "W. Burge, commissioner," (L. s.) Held, on motion for a habeas corpus, that the warrant was bad, as shewing that the bankrupt was sworn on his examination, contrary to the 8 & 9 Vict. c. 48, s. 1. In re Ramsden, 748

2. A warrant of commitment for non-payment of a poor rate should shew an adjudication by the same justices before whom the complaint is

heard.

66

Ib.

3. A warrant of commitment of a bankrupt for not giving satisfactory answers, stated that a fiat in bankruptcy,' "directed to her Majesty's Court of Bankruptcy for the Leeds district, was duly awarded and issued against Francis Ward;"" and whereas the said Francis Ward did, on," &c., "surrender himself to me, Martin John West, Esq., one of the commissioners of the said Court authorized to act in the prosecution of the fiat," &c. It then set out the examination and the questions and answers, and proceeded, which answers of the said F. W. are not, nor any of them, satisfactory to me the said commismissioner, ""these are therefore to require you," &c.

66

Held, upon motion for a habeas corpus to discharge the bankrupt, that the jurisdiction of the commissioner to make the order sufficiently appeared; although there are two commissioners in the Leeds district, and it was not stated that the fiat had been allotted to the commissioner in question, or that he was acting in the absence of the other commissioner, in pursuance of the rules and orders made by the bankrupt commissioners under the 5 & 6 Vict. c. 122, s. 70.

Held also, that it was not necessary to specify which of the answers were unsatisfactory; although there were some, that taken separately and apart from the rest, could scarcely be deemed So. Ex parte Ward, 756

2. A warrant of attorney, dated the 4th of April, 1844, was given by the defendant to the plaintiff, the defeasance to which stated it to be for securing 1300l. and interest on the 15th of April, and authorized the issuing of execution for the whole of the principal and interest then due, with costs, &c., in default of payment. At that time the defendant owed 514%. to the plaintiff, who was also liable as a surety for 2371. When execution issued, the amount of debt and liabilities was 1110., including bills accepted by the plaintiff for the accommodation of the defendant, after the giving of the warrant of attorney, some of which were not due. The amount levied was 1085l.: Held, that affidavits were admissible to shew the intention of the parties to have been, that the warrant of attorney should be a security for future liabilities, as well as for existing debts, not exceeding 1300l.; and also to shew that the accommodation acceptances had been given with that understanding.

The warrant of attorney was filed under 3 Geo. 4, c. 39, s. 1, on the 24th of April, 1844, with an affidavit stating that deponent "was present on the 4th day of April, 1844, and did see the within named W. H. R. sign, seal, and, as his act and deed, deliver the within warrant of attorney:" Held, that the affidavit sufficiently shewed that the warrant of attorney was executed within twenty-one days

880 WARRANT OF ATTORNEY.

of its being filed. Henry Robinson v. William Henry Robinson, 134

3. Where a charge of embezzlement was pending before a magistrate, who entertained doubts whether a partnership did not exist between the prosecutor and the accused party: Held, that a warrant of attorney given to secure the payment of the monies charged to be embezzled, the charge being afterwards withdrawn, was invalid; as at the time of giving it, there was a charge of a criminal nature pending, which it was calculated to bring to an end. Ex parte George Critchley, 527

4. A joint warrant of attorney having been given by two defendants, and one of them having been transported for life, the Court permitted judgment to be entered up against both, on an affidavit stating the conviction, and a certificate from the Home Office, certifying the transportation, and that no return of the convict's death had been made, and that by the practice of that office no return was made of a convict continuing alive; it being also sworn that the other defendant was still living. Dalrymple v. Fraser and Dawes,

611

5. "Signed, sealed and delivered, in the presence of H. Whittaker, 10, Lincoln's Inn, attorney for the said Lord Kensington, expressly named by him, and attending at his request, and I hereby subscribe myself to be the attorney for him, having read over and explained to him the nature and effect of the above warrant of attorney, before

7. Two persons executed a warrant of attorney, by which they authorized certain attorneys to appear " for us and each of us," and to receive a declaration "for us and each of us in an action of debt," &c., and to confess the same action, or else to suffer judgment, &c. to pass "against us," and to be thereupon entered up" against us and each of us," and after the said judgment shall be entered up as aforesaid, "for us and in our names and as our act and deed," to execute a release of errors. On an application to enter up judgment against one of the defendants, the Court held the warrant joint, and not joint and several, and therefore refused a rule for that purpose. Dalrymple v. Fraser and Another,

WITNESS.

See ESTOPPEL.

WRIT (CONTINUANCE OF). See CONTINUANCE (OF WRIT).

818