age thereon, and also in allowing the attorney more than he was entitled to for his travelling expenses to the assize town of the county in which the writ was issued, and proceedings taken. He founded his motion on an affidavit which stated that the premises seized under the writ were of the annual value of 127., and that the prothonotary had allowed the sum of 21. 3s. 2d. for executing the writ; whereas by the statute 3 Geo. 1, c. 15, s. 3, the sheriff was only entitled to an allowance of 12d. out of every 20s. for any sum not exceeding 1007. so by him levied or collected, which in this case must be taken according to the yearly rent; that the prothonotary had also allowed 6s. for poundage, and 117. 12s. 6d. for the travelling expenses of the attorney to the assizes, who had three other causes entered to be tried there. Mr. Prothonotary Watlington stated that the costs in question had been allowed as between attorney and client; that the writ of habere facias had been executed in a particular manner, as it was the wish of the prosecutor of the extent that some of the tenants should not be served; in consequence of which the sheriff had been put to considerable difficulty and experienced much trouble; that he had allowed him one guinea for the expenses of his journey to Spalding, 5s. for poundage, 6s. 8d. for the warrant, and 10s. 6d. on the delivery of the possession; and that he had merely allowed the attorney the expenses attending his journey to and from the assizes. The Court observed, that the statute applied only to cases as between party and party, and not as between attorney and client; and that the prothonotary was fully entitled to use his discretion in the taxation of the costs, as the sheriff had been put to extra trouble and expense in executing the writ. 1823. САРР JOHNSON. The learned Serjeant therefore took nothing by his motion (a). (a) See Stephens v. Rothwell, ante, Vol. VI. 338. 2 Tidd, 7th edit. 1096, 1118. And in Rex v. Fereday, 4 Price, 131, it was held, that if the sheriff has been put to any extraordinary trouble in keeping possession of the defendant's goods, &c. he may apply to the Court of Exchequer for a rule to shew cause why it should not be referred to the deputy remembrancer to ascertain whether any and what allowance should be made him by the prosecutor of the extent beyond the poundage. See also Rex v. Jones, 1 Price, 205. Monday, Where the cause of action is transitory, the plaintiff has his election to venue in any county: -Where JENKINS V. HUTTON. MR. Serjeant Peake, on a former day in this Term, obtained a rule calling on the plaintiff to shew cause why the venue in this cause should not be changed from London to Lincoln; on an affidavit by the defendant, which stated that the action was brought by the plaintiff for therefore, on a false imprisonment under a warrant which had been sued defendant to out against him under a commission of bankrupt, and change it from London to Lin- which it was now intended to dispute; that the plaintiff colnshire, on an resided at Lincoln, and must of necessity have witnesses affidavit, which motion by the action was pute a bank and all the wit stated that the there to prove the petitioning creditor's debt, act of brought to dis- bankruptcy and trading, and that nearly all those witruptcy, and that nesses resided either in Lincolnshire or the adjoining the plaintiff, county of Northampton; and that the deponent believed that neither of the plaintiff's witnesses resided out of those counties, with the exception of one or two, who had apprehended the plaintiff, and which the defendant was ready to admit at the trial. nesses neces sary to prove it latter county; Mr. Serjeant Lawes now shewed cause, on an affidavit, which stated that several of the plaintiff's witnesses resided in London, and were prepared to prove a trading there, which was a dealing in horses; and that several of the purchasers were also ready to prove that they had bought horses of the plaintiff there. The Court held, that under these circumstances the plaintiff had a right to elect where to bring his action; that he had thought it convenient to lay the venue in London, and having done so, the defendant was not entitled to change it on the above affidavit; and that where it was convenient for the plaintiff to try his cause in one county and the defendant in another, the plaintiff has a right to make his election. And they therefore ordered the rule to be Discharged (a). (a) See Parker v. Eastwood, 8 Taunt. 635. 1823. JENKINS v. HUTTON. HAM, Assignee of the Sheriff of Kent, v. PHILCOX. MR. Serjeant Hullock moved that the proceedings which had been taken on the bail-bond in this cause might be set aside, on the ground of a breach of good faith in taking an assignment of it; and stated that a difficulty had been suggested as to how the affidavits should be entitled, viz. whether in the original cause, or in the action on the bail-bond; that there had been no irregularity in the assignment, and that in order to obviate any difficulty, affidavits had been prepared in both ways. The Court, on referring to Mr. Secondary Griffith as to the practice, he stated, that Lord Chief Justice Mansfield had said, that in moving to stay proceedings on a bail-bond, the affidavit on which the motion is made must be entitled in the original cause, and not in the Monday, If a bail bond larly assigned, the affidavit to has been irregu set aside the proceedings upon it must be entitled in the but if it has original action; been assigned regularly, then in the action on the bail bond. 1823. HAM v. PHILCOX. action against the bail; but that the distinction had lately been, that where the bail bond had been irregularly assigned, the affidavit should be entitled in the original action; and that if it had been assigned regularly, then in the action on the bail bond (a). (a) See 1 Tidd, 326, where it is said, that when the application is to set aside the proceedings upon the bail-bond for irregularity, or if regular, to stay them upon terms, the rule or summons and affidavit should be entitled in the original cause; but when the application is to stay the proceedings upon some irregularity in the process in the action upon the bail-bond, the rule or summons and affidavit ought to be entitled on that action, and not in the original cause. And in Kelly v. Wrother, 2 Chit. 109, it seems to have been decided, that the affidavits to set aside such proceedings by the assignee may be entitled either in an action on the bail-bond, or in the original cause. The above, however, seems to be the true and proper distinction. Tuesday, Where, in an action of assumpsit by three co-plaintiffs for a breach of contract, they were rightly named LONGRIDGE and two others v. BREWER. THIS was an action of assumpsit brought against the defendant for the breach of a special agreement entered into by him as the master of a vessel, to consign her on her return from Smyrna or Constantinople, to the plainin the writ, but tiffs, who were ship-brokers. The defendant pleaded a the surname of tender as to 12l. 7s. 7d., part of the plaintiff's demand, omitted by mis- and paid that sum into Court; and pleaded non assumpsit as to the residue. one of them was take in the de claration, issue, and nisi prius record, and the defendant pleaded a tender, and paid money into Court generally on the At the trial, before Lord Chief Justice Dallas, at Guildhall, at the Sittings after last Trinity Term, it appeared that in the course of that Term a capias ad respondendum had been issued out of this Court against the defendant, at the suit of the three plaintiffs, who were correctly named as Elizabeth Longridge, Benjamin Barnett, and Michael Armstrong Hodgson; but that in tender; and the jury, after an objection had been taken as to the omission of the surname, found a verdict for the plaintiffs with nominal damages only, and leave was given them to move to increase it to the extent of their demand if the Court should be of opinion that the omission was immaterial; they discharged a rule obtained for that purpose, as the plaintiffs might have amended the pleadings and record at any ime before the trial; and as they had their remedy by bringing a fresh action. whole declaration, and at the trial failed to establish the 1823. Brewer. the declaration, issue, and nisi prius record, the surname of Hodgson had been inadvertently omitted; on which it LONGRIDGE was objected for the defendant, that no contract could be proved between the parties to the record as it then stood; and that the plaintiffs could not recover on account of such omission. His Lordship, however, allowed the plaintiffs to prove their demand to the amount of 231. 9s. 5d. beyond the sum so paid into Court; and directed the jury to find a verdict for them, with one shilling damages; with liberty for the plaintiffs to move to increase it to 23l. 9s. 5d. in case the Court should be of opinion that the omission on the record was not a fatal objection. Mr. Serjeant Vaughan, in the course of the last Term, accordingly obtained a rule nisi, and submitted, that as the defendant knew at whose suit he was sued he should have taken advantage of the omission of Hodgson's surname by a plea in abatement; and more particularly so, as he had been rightly named in the writ; and he relied on the case of Dickinson v. Bowes (a), where one of the defendants, who had suffered judgment by default, was sued upon a promissory note, by the name of Thomas Kay, instead of his real name of John Key: and although the declaration stated the promises to have been made by the other defendant with one Kay, and though on the production of the note, it appeared to have been made by Key, and not Kay, still the Court held it immaterial, as no plea in abatement had been filed. Here, too, the defendant, by pleading the tender, admitted that he had made a contract with the plaintiffs named in the declaration; or, at all events, the objection is cured by (a) 16 East, 110. |