CROMPTON, J.-As the plaintiff insists upon it that his construction of the contract is the true one, I cannot compel him to alter his statement of it. But his refusal to alter it may possibly be used at the trial (if his construction turns out to be wrong), to induce the Judge to refuse to amend, on the ground that what has now taken place shows that the real question in controversy between the parties was whether the construction now insisted on by the plaintiff was correct (a). However, I cannot interfere, therefore, (a) Sed quære, the inference would surely be the very contrary. See Wilkin v. Reed, 15 C. B. 145, and Wickens v. Steel, 26 L. J., No order. C. P. 241. The first case shows 1861. TAYLOR บ. SMITH. Coram Mellor, J. COTTULA v. SOAMES. SUMMONS to set aside a plea as embarrassing. Plea that the said patent is not vested in the plaintiff. J. Brown appeared for the plaintiff, upon a summons calling on the defendant to show cause why the plea should not be struck out, under sect. 52 of the Common Law Procedure Act, 1852, as embarrassing, and because it would not only put in issue all the assignments stated in the declaration, but would also enable the defendant to show that the plaintiff had since conveyed away his interest in the patent by mortgage. He cited The Bishop of Meath v. The Marquis of Winchester (a), and Bailey v. Tennents (b), where a similar plea was set aside. (a) 3 B., N. C. 214. (b) Not reported. Action by assignee of reversion on a lease. 1862. Hilary Term. In an action by an assignee, a plea that the property is the plaintiff is not vested in bad, as "embarrassing" under C. L. P. Act, 1852, s. 52, and will be set aside. 1862. COTTULA v. SOAMES. Webster, for the defendant, showed cause. This plea has been very commonly pleaded, and saves the necessity for traversing every assignment separately (a), and it shows that the patent is not vested in the plaintiff, so that he has no right of action. MELLOR, J. (after consulting CROMPTON, J.).-The plea is bad, as embarrassing, on the grounds stated by the counsel for the plaintiff, and therefore it must be struck out. to him in the usual way. Plea: The plea is clearly vicious, it Order as prayed. costs (although against the decision of a Judge at Chambers); for, per PARKE, B., This summons to set aside the plea is instead of a special demurrer, under the old system, ou which the plaintiff would have had his costs. Ex relatione J. Brown. (a) Which, however, the defendant could not be allowed to traverse separately at least all of them— without showing some good reason for so doing. See Gully v. The Bishop of Exeter, 5 Bing. 42, confirmed in Cooling v. Great Northern Railway Company, 19 L. J., Q. B. 529. Coram Willes, J. GREAT SHIP COMPANY v. RUSSELL. An allegation SUMMONS on the part of the defendant to amend the on the breach of a contract that the defendant fraudulently omitted to deliver true accounts, and delivered un declaration as embarrassing. The action was on a covenant in a contract to build a steam-ship for the plaintiff's, the covenant being to render from time to time, as the work went on, just and true accounts of all materials emtrue accounts, ployed and labour bestowed in the construction of the ship (for the purpose of ascertaining the sums of money to be embarrassing, paid from time to time by the plaintiffs to the defendant). by omitting the Breach, that the defendant fraudulently, and in order to ordered to be amended, as word "fraudu lently." deceive and defraud the plaintiffs, and to get them to pay money which was not due, rendered untrue accounts. Watkin Williams, for the defendant, in support of the summons.-The declaration as it stands may possibly be taken to import an allegation that the accounts were not only untrue, but wilfully so. The defendant, if he does not go down to trial with evidence to meet that, may be in peril; and yet, if he does, he may be told afterwards that he did so uselessly, as the substance of the cause of action is the rendering untrue accounts. Horace Lloyd, contra. WILLES, J.-I think the declaration is embarrassing for the reasons urged, and that it must be amended by striking out the word fraudulently (a). Order accordingly. (a) Swinfen v. Lord Chelmsford, 5 H. & N. 896. 1862. GREAT SHIP บ. RUSSELL. Coram Mellor, J. HISCOCK v. HOLLINGS. SUMMONS to set aside writ of summons as irregular, the defendant (sued as feme sole) being a married woman. The writ, dated in December, was specially indorsed for debt on simple contract, accruing in January, 1861. writ of sumagainst a woman, sued as mons sued out feme sole, specially indorsed on simple con fore appear The affidavit of defendant in support of the application tract, may be stated that she was married in 1855, and that her husband set aside bewas in India, and that she had heard from him in Febru- ance, on an ary, and had no reason to doubt that he was alive at the ing that the detime the writ issued. affidavit show fendant was married when the cause of action accrued, and that she believed, and There was no affidavit in answer. The time for appearance had not elapsed. Finlason, in support of the application, pointed out that, had no reason as the cause of action was simple contract accruing during her husband coverture, the wife could not even be joined, and the action (abroad) when to doubt, that the writ issued. 1862. HISCOCK ບ. HOLLINGS. would not survive against her; so that even if the husband were not alive when the writ issued, it was enough that he was shown to be so when the cause of action accrued. The coverture was not denied or disputed, nor was it denied that the husband was now alive; and if so, the proceedings were erroneous and irregular. The only effect of allowing the proceedings to continue would be, useless expense. On the other side it was suggested that the defendant should be put to plead her coverture; but MELLOR, J.-To what purpose, as it is not denied? It can only lead to useless expense. The writ cannot be even amended, for the wife cannot be joined. While the husband is alive, however, you can never sue the wife alone. The order must be made; but as it does not appear that the plaintiff knew of the coverture when he sued, Order made without costs (a). (a) See the next case; and see also Dobson v. Easton, Vol. II., p. 371, where, however, the woman in execution; and in such was cases the Court would not interfere, unless the proceedings were irregular, without an affidavit denying separate property. Hilary Term. Coram Byles, J. WILSON v. HOLLINGS (a). A writ of sum- SUMMONS to set aside writ of summons and all pro mons against a married woman, sued as feme sole, will not be set aside, if she herself as a widow; nor, even though this be denied, ceedings thereon as irregular, the defendant being a married woman. The affidavit on which the application was made stated has represented that the writ of summons, which issued in December, was specially indorsed to recover 741. for furniture supplied in August last. That the defendant, in 1855, was married to yet, if the affi- a husband, now in India, from whom she heard in February, of whom she heard in November, and whom she believed and had no reason to doubt was alive when the writ issued. davits are con tradictory, and judgment has been signed, will it be set aside with costs. (a) Vide the previous case. appearance, but was The summons was taken out before returnable the day after the time for appearance expired, and judgment had been signed. Finlason, in support of the summons, having stated these facts, and cited the foregoing case, BYLES, J., called on the other side to show cause. On the part of the plaintiff an affidavit was put in, stating that the defendant had represented herself as a widow. Thereupon BYLES, J., said he would not make the order on the affidavits as they stood, but referred the parties to the Court, and for that purpose indorsed the summons. No order, without prejudice to an application (a) Finlason accordingly moved in C. P., in the same (Hilary) Term, on an affidavit denying the misrepresentation as to widowhood, but admitting certain representations as to separate property. He cited Slater v. Mills, 7 Bing. 606. The Court made a rule absolute to stay all proceedings without costs, as the affidavits were contradictory, and judgment had been signed in due time. See, as to this, Moses v. Richardson, 8 B. & C. 421, where, however, there had been a writ of Court of Exchequer, Westminster, coram Bramwell, B. LAING v. SMITH. COUNT, inter alia, for money had and received. 1862. WILSON v. HOLLINGS. Middlesex Sittings. Hilary Term. If, after two parties have orally agreed to certain terms, one of them desires that they shall be put into writing, and the other writes them out in the form of a proposal, which is orally accepted; this, though necessary to be put in as matter of evidence, does not require a stamp as an agreement. 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