the bill to be good;" and submitted that the plaintiff had Exch. of Pleas, no other course to pursue. BAYLEY, B.-It is quite new to ask the Court to authorize a party to sign judgment; and I think we ought not in this case to interfere. If the plaintiff is entitled to sign judgment, he may do so, at the peril of having an application made to set that judgment aside; and if it be set aside, he will have to pay the costs. But it is said, that there is here no other mode of proceeding. There is a very obvious course pointed out by the demurrer, and that is to amend. The plaintiff has been guilty of a mistake, which might have been amended at a trifling expense; but instead of adopting that simple course, he makes this application. The case in Yelverton was the case of a plea in abatement. It is well known, that you cannot plead in abatement, except of the term in which the declaration is delivered or filed, because you must plead in abatement in the first instance; but I am to learn that this rule is equally applicable to cases of special demurrer. The defendant is entitled to and obtains an imparlance, and, when he sees the declaration, discovers that the cause of action accrued nine days after the bill was filed. I know of no rule which says, that the defendant shall not be at liberty to point out that as a ground of special demurrer. demurrer is a plea in bar, as appears by the conclusion. We should be acting contrary to all rule, if we were to entertain this application. The other Barons concurred, and the rule was A 1832. PIM v. WOODMAN. Refused. Exch. of Pleas, 1832. Where an in junction had is defendants in an equity suit, DAVIS v. SALTER and Others, Executors. THE defendants were the executors of Thomas Salter, sued against the deceased; and in a suit in equity against them, an injunction had issued injoining them from proceeding to sell or assign the lease in the pleadings of the cause in equity mentioned, or collecting any debts, or disposing of any of the personal property, stock in trade, or effects, belonging to the estate of the testator. Pending this injunction the present action was brought. restraining them from disposing of the estate of their testator, the Court refused to stay proceedings against them in an action in which the debt was not admitted, observing that the injunction might be ground for applying to stay execution. a Knowles now moved, on the part of the defendants, to stay the proceedings, and urged, that, if they were to pay the present demand, they would commit a contempt of the Court of equity; and if they resisted the demand, costs might be unnecessarily accumulated against the estate. BAYLEY, B., (after inquiring whether the defendants were ready to admit the debt, and being answered in the negative) Then your application is too early. The plaintiff has a right to have his debt ascertained. The injunction may be a ground for applying to stay the execution. Rule refused. DOWNES v. CROSS. Where the de- KNOWLES moved for judgment as in case of a non fendant's attorney had agreed with the plaintiff's attorney to accept short notice of trial, or no notice at all; and, in con suit in a country cause, on an affidavit stating that this was an action of trespass, commenced pending another action of trespass between the same parties; and that sequence of this arrangement, no notice was given, but both parties attended the assize town with their witnesses, and the plaintiff's attorney did not enter the record:-Held, that the defendant was not entitled to judgment as in case of a nonsuit. 1832. DOWNES V. CROSS. after plea an arrangement had been made between the Exch, of Pleas, attornies on both sides, by which, in consideration of some stipulation for the convenience of the defendant, the defendant's attorney agreed to take short notice of trial, or no notice at all. In consequence, no notice of trial was given; but both parties attended the assize town with their witnesses, and there, on the commission day, the plaintiff's attorney gave notice to the defendant's attorney, that the record would not be entered. This, he contended, placed the parties in the situation contemplated by the act of Parliament, (14 Geo. 2, c. 17), which did not require that notice of trial should have been given, but only that the plaintiff should have neglected to take his cause down to trial, according to the practice of the Court. BAYLEY, B.-If a notice of trial had been given, the defendant would have been entitled to judgment as in case of a nonsuit. No notice was actually given; but it is said that the agreement to take no notice was equivalent to notice. In my opinion, it was not equivalent to a notice for the purpose of this motion. BOLLAND, B., concurred. Rule refused. Knowles afterwards obtained a rule on the same affidavit for the costs of the day for not proceeding to trial. Exch. of Pleas, 1832, An affidavit to hold to bail defendant was justly and truly indebted to the plaintiff in 251., by virtue of an agreement, whereby the plaintiff agreed to procure a lease to be granted to the defendant, and the defendant agreed to pay the plaintiff, his solicitor or agent, 251. in full, for his share or proportion of the costs and expenses of the agreement, and TOWNSEND v. BURNS. THE affidavit to hold to bail in this case was made stated that the by the plaintiff, a receiver appointed by the Court of Chancery, and one Seabrook, and stated that the defendant was indebted to the plaintiff in the sum of 25%., upon and by virtue of a certain memorandum of agreement made the 12th day of January, 1832, between the plaintiff and the defendant; whereby the plaintiff, for the considerations therein mentioned, did agree with the defendant to cause or procure to be granted unto the defendant, a good and sufficient indenture of lease of a certain messuage or tenement, situate and being No. 1, Prince's Place, Lambeth, in the county of Surrey, together with the appurtenances thereto belonging, for the term of 21 years, from the 25th day of December then last, determinable at the end of the first 7, 14, or 21 years of the said term, at the option of the lease and of either party, at the yearly rent of 657., payable quarterly as therein mentioned, and subject to the covenants therein also mentioned; that the defendant did, in and by the said memorandum of agreement, agree with the plaintiff, and also with the parties then vested with the legal estate or and counterpart entitled to the rents and profits of the said premises, to accept such lease upon the terms and conditions aforesaid, and to execute a counterpart thereof, on request of the plaintiff, or his solicitor, or agent; and also that he the said granted, which defendant would, upon the like request, pay to the plaintiff, by the plaintiff's his solicitor or agent, the sum of 25l. in full for his share or proportion of the costs and expenses of preparing and executing the said agreement or in relation thereto, and also of or occasioned by the preparing and carrying into effect such lease and counterpart, and also of the proposal to be laid before the Master for granting the said lease, and all other expenses incident thereto; and that it was thereby further agreed, that the said lease and counterpart should counterpart, and of a propo. sal to be laid be fore a Master in Chancery for a grant of the lease; the lease being to be prepared by the plaintiff's solicitor: and that the plaintiff did pro cure a lease to be was prepared solicitor; but did not state that the the solicitor, borne or incur red the expen ses:-Held, in sufficient. 1832. TOWNSEND บ. BURNS. be prepared by the solicitor of the plaintiff; that the plain- Exch. of Pleas, tiff caused to be granted unto the said defendant a good and sufficient indenture of lease of the said messuage or tenement, together with the appurtenances thereto belonging, for the term and at the rent in the said agreement mentioned, payable as therein mentioned, under and subject to the covenants therein also mentioned, which said lease was prepared by the solicitor of the plaintiff; and that the defendant did accept such lease upon the terms and conditions aforesaid, and did execute a counterpart thereof; and that the plaintiff duly deputed Seabrook, as his agent, to request payment of the said sum of 251. of and from the defendant; and that Seabrook did, on the 26th day of April instant, demand of the defendant personally the payment of the said sum of 251., and at the said time tendered to him a proper stamped receipt for the same, signed by the plaintiff, and also produced to and left with the defendant an authority under the hand of the plaintiff, deputing him as the agent of the plaintiff, and authorizing him to receive from the defendant the said sum of 251.; but that the defendant did not pay the said sum of 25l., or any part thereof. The defendant having been arrested upon this affidavit, and having given bail to the sheriff— Kelly obtained a rule to shew cause why the bail bond should not be delivered up to be cancelled, and the defendant discharged out of custody on filing common bail. Alexander shewed cause.-The affidavit states, that every thing which was necessary to give the plaintiff a right of action, was done by him. Nothing was to be done by him after the lease was accepted. It is stated that the plaintiff did cause the lease to be granted, and that the lease was prepared by the plaintiff's solicitor, it being the stipulation of the agreement that it should |