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upon which the title rests. I, therefore, am of opinion that at present the party can claim only 3s. 4d.
a defendant to
ATTORNEY-GENERAL v. Jeres. The practice on W CLER moved to enlarge a rule calling on the defenthe revenue side, requiring dant, as executrix, to deliver in her accounts to the Legacy file his affidavit Duy mce. against a rule one day before the rule comes Amos.-The defendant's affidavits have not been on the on, is not strictly enforced.
rict file one day previously to this motion, according to the Quære, if such practice on the revenue side of the Court. practice applies to a motion to enlarge a rule.
Bayley, B.- I think it doubtful whether that rule applies to a motion to enlarge a rule; but at all events that practice is not now strictly adhered to.
Exch. of Pleas,
Lewis v. GOMPERTZ. An affidavit to R. V. RICHARDS had obtained a rule nisi to dishold to bail on a bill of ex charge the defendant out of custody, on filing common change, which states that the
o bail for defects in the affidavit to hold to bail. The affidefendant is in- davit stated, that the defendant was indebted to the plaindebted in a sum specified, is suf- tiff in the sum of 1001., as indorsee of a bill of exchange, ficient, without
drawn, &c., (describing the bill), but did not state the amount of the
amount of the bill of exchange, nor by whom it was inbill.
An affidavit to hold to bail for a sum due to plaintiff as indorsee of a bill of exchange, must state by whom the bill is indorsed; stating that it was duly indorsed to the plaintiff is insufficient.
dorsed, but merely stated that it was duly indorsed to this Exch. of Pleas, deponent.
Richards, in support of the rule as to the defect in the statement of the indorsement, cited M*Taggart v. Ellice (a); and mentioned, that Patteson, J., had in a very recent case ordered a bail-bond to be cancelled for a similar defect. As to the other point, he cited Bosanquet v. Fillis (6).
Lord LYNDHURST, C. B.-Duly indorsed is a mere inference; we should see on the face of the affidavit by whom it is indorsed.
BAYLEY, B.--I have looked at several cases in which the objection as to not stating the amount would have occurred if there were any thing in it (c). On the other point, I think that the affidavit must state by whom the bill is indorsed.
Vaughan, B.-It is swearing to the legal effect merely.
(a) 4 Bing. 114.
(c) See Hanby v. Morgan, ante, p. 33).
Exch. of Pleas,
hold to bail for
of a promissory 80
that it is over
KIRK 0. ALMOND. An affidavit to HUMFREY obtained a rule nisi to discharge the money due by defendant out of custody on filing common bail, on the maker to payee
ground of defects in the affidavit to hold to bail. note, must state The affidavit stated, that the defendant was justly and when the note is payable, or truly indebted to the plaintiff in the sum of 1301. and updue.
wards, on a certain promissory note, drawn by the defenWhen an afli- dant on the 3rd December, 1826, and payable to the plaindavit to hold to bail on three tiff or her order on demand for the sum of 801., and lawpromissory notes was de- ful interest; and on a certain other promissory note, drawn fective as to two h of them, the
° by the defendant on the 7th day of May, 1829, payable to
o Court discharg- the plaintiff or her order, for the sum of 301., and lawful ed the defendant on filing interest; and on a certain other promissory note, drawn by common bail, and would not the defendant on the 7th May, 1829, for the sum of 201., order bail to be
e and payable to the plaintiff or her order, with lawful inamount of the terest. The defects were, the omission of stating when note as to which the affidavit was the two last notes were payable, or that they were over
due and unpaid.
taken to the
Cresswell shewed cause.--If no time is specified, the notes must be presumed to have been payable on demand.
The statement that the defendant is justly and truly indebted is a sufficient allegation that they were overdue and unpaid.
[Bayley, B.-He would be justly and truly indebted if they were not payable for six months. It is debitum in præsenti, solvendum in futuro.]
Supposing that the affidavit is bad as to the two last notes, it is good for the first note for 801., and, therefore, at all events the defendant ought to give bail for that sum, and the interest due upon the first note. Besides, it does not appear from the defendant's affidavits that he was arrested for the whole sum, and he may only have been ar
rested for the sum due on the first note, as to which the Exch. of Pleas,
1832. affidavit is sufficient.
KIRK , Humfrey, in support of the rule, relied upon Jackson Almond. v. Yate (a).
Per Curian. The whole debt is stated in this affidavit to be due on the several notes mentioned therein, and the defendant is in substance alleged to be indebted by virtue of those three several instruments. The presumption is, that the defendant was arrested for the sum sworn to, and that he is now in custody for that amount. For part of that amount the affidavit shews no right to arrest; and as we know of no instance in which an affidavit of debt bad in part, and good in part, has been upheld as to the good part, the defendant must be discharged on filing common bail.
(a) 2 M. & S. 148.
GLASCOTT v. Castle. THE Sheriff having paid the costs, after an attachment The Court will
refer an attorfor not bringing in the body
ney's bill of costs to be taxed
by the Master, Knowles obtained a rule to shew cause why the costs after it has been
paid, on applishould not be referred to the Master to be taxed.
cation within a reasonable time,
without shewAgainst which Hoggins now shewed cause. After pay- ing circum
stances of fraud ment of an attorney's bill of costs, it is only under special or imposition. circumstances, such as fraud or gross imposition, that the party is entitled to refer the bill to be taxed.
Exch. of Pleas, BAYLEY, B.-- That depends on the time when the ap. 1832.
plication is made. If it is made within a reasonable time, GLASCOTT Judges at chambers are in the practice of directing a bill
to be taxed as a matter of course. If there has been any delay, then the party applying must shew fraud or imposition. I am therefore of opinion, in this case, that as the Sheriff has paid the costs, the party is fairly entitled to have the bill of costs taxed by the Master.
WILLETT v. Wilson. Process was re- THE process in this case was returnable and served on turnable and served on the the 4th of November. On the 10th, pursuant to rule 10, 4th of November, and a de
: T. T. 1 Will. 4, a declaration de bene esse was delivered, claration deli- indorsed “ the defendant is to appear and plead hereto in vered de bene esse on the 10th, eight days.” On the 14th, the plaintiff entered an appearindorsed" to pear and a nce according to the statute. On the 18th, the defendant
ht entered an appearance. On the 19th, the plaintiff, havdays." The plaintiff, on the ing received no notice of the defendant having entered an 14th, entered an appearance appearance, signed judgment without demanding a plea, for the defen
and without searching whether an appearance had been dant, and, on the 18th, the entered for the defendant after the 14th. defendant appeared, and the plaintiff on the Hall, having obtained a rule to set aside the proceed19th signed judgment with. ings for irregularity, on the ground that the plaintiff had out demanding a plea:-Helă, signed judgment without demanding a pleathat the indorsement on the de
Platt shewed cause. According to the old practice, the larged the time for the defen- declaration might have been delivered immediately on the dant to appear, return of the writ, but the rule 1 Will. 4, requires that in, and that the return judgment sign- six days shall elapse from that time before the declaraed without demanding a plea tion can be delivered. The time for appearing, according was irregular,