ALIEN..-AMENDMENT-ANNUITY.

ALIEN.

(And see post, BILLS and NOTES, B. (b).)

And the court of K. B. refused to set aside nonsuit. Ibid.

6. A replication of licence is not supported by evidence of a licence granted under a temporary statute now expired, unmolested residence down to the time 1. A subject of a neutral state, taken of action brought, and licence granted. on board an enemy's fleet, may, whilst subsequently to the bringing of the acin confinement, sue upon a contract tion. Margaret Alciator v. Smith, 3 entered into by him as a prisoner of Campb. 245. Ellenborough, C. J. war. Sparenburg v. Bannatyne, 2 Esp. 1812.

580. Eyre, C. J. 1797.

And the court of C. P. discharged a

rule for a new trial. Ibid, and 1 Bos. and Pull. 163.

And see Maria v. Hall, 1 Taunt. 33. n.

AMENDMENT.

2. The alien bill (34 Geo. 3. cap. 9.) nisi prius, after the cause has been 1. The record may be amended at does not prevent a person from suing here, who resides in France, and who comes over with the intention of returning; though the money recovered cannot be remitted. Michelotte v. Dillon, 2 Esp. 622. Kenyon, C. J. 1798.

called on, by a rule of court made instanter by consent. Murphy v. Marlow and Traunt, 1 Campb. 57. Ellenborough, C. J. 1807.

And see Blackamore's case, 8 Co.

3. An Irishman residing and carrying 156, 61 b. Tite v. Bishop of Worcester, 1 Lord Raym. 94. S. C. 1 Salk, on trade in an enemy's country, cannot ter, 1 Lord Raym. 94. S. C. 1 Salk, sue here, though naturalized in a neutral 48. S. C. Comb. 393. S. C. 12 Mod. state. O'Mealey v. Wilson and another, 1 Campb. 482. Ellenborough, C. J.

1808.

And see 14 and 15 Hen. 8, cap. 4. 4. And semble, that a person domiciled in an enemy's country, is disabled from suing in England. wherever the place of his birth may be. Ibid.

And see 14 and 15 Hen. 8, cap. 4. Sparenburg v. Bannatyne, 1 Bos. and Pull. 163, 7; M'Connell v. Hector, 3 Bos. and Pull. 113. Kensington v. Inglis, 8 East, 273; Flindt v. Waters, 15 East, 260; Mennett v. Bonham, ibid. 477.

107.

S. C. 1 Lord Raym. 511. Crowder v.

Sed vide Child v. Harvey, 1 Salk. 48.

Rooke, 2 Wils. 144.

2. But a material allegation will not be altered there upon an ex parte application; as the substitution of an excuse for projert. Paine v. Bustin, 1 Stark. 74. Ellenborough, C. J. 1815.

3. The omission of the similiter is however immaterial after verdict. Wright q. t. v. Horton, K. B. 1816, 1 Stark, 400,

5. To a count on a policy of insurance, defendant pleads that the action is brought on the behalf of H. E. a Dane, an alien enemy, not resident within the king's dominions, under letters of safe conduct, licence, or protection. Issue on the licence. Held, that a licence from the king to H. E. then an alien friend, B. authorizing him to undertake a voyage to an enemy's country, and to return to England, does not operate as a licence to reside here, though the voyage did not terminate till after the commencement of hostilities with Denmark, and though he remains here unmolested. Boulton and another v. Dobree, 2 Campb. 163.

1202

ANNUITY.

A. MEMORIAL. (a) Form of. (b) How pleaded. CONSIDERATION WHEN RECO

VERABLE.

A. MEMORIAL.

A. (a) Form of Memorial.

1. An allegation in the memorial, that. the grantee paid the rumboco..

to the grantor, is supported by evidence, I received. Weddell v. Lynam and Jones,

that the amount was deposited by the 1
grantee at his banker's, in the name of
his attorney, to await the performance of
a condition precedent, and that it was
subsequently paid over by the attorney.
Coare v. Giblet, 4 Esp. 231. Ellen-
borough, C. J. 1803.

S. C. not S. P. 3 East, 461.

N. It does not appear whether the payment ought to be considered as made on the day on which the money was deposited with the banker, or on that on which it was paid over to the grantor.

241.

Esp. 309. Kenyon, C. J. 1795. Acc. Shove v. Webb, 1 T. R. 732. And see Scurfield v. Gowland, 6 East, Waters v. Mansell, 3 Taunt. 57. 6. But where no steps are taken by the grantor to set aside the annuity, and no application is made to him to execute further assurances, the grantee cannot recover. Ibid.

7. S. P. ruled in Richards v. Borrett, 3 Esp. 102. Kenyon, C. J. 1800.

8. In an action to recover the purchase money of an annuity, the grantor

2. Covenant on deed of annuity for will be allowed to set off the full amount 661. 13s. 4d. plea void under annuity act, of payments made by him on account of for defect of memorials. It had been the annuity. Weddall v. Lynam, ubi intended to grant 607. per ann., only supra.

the rest being added to pay income tax, 9. S. P. ruled in Hills v. Hills, 4 while it should last. Held that the agree- Esp. 196. Ellenborough, C. J. 1802. ment to reduce the annuity, on repeal of And the court of K. B. refused a rule the income tax, should have been set for a new trial. S. C. (called Hicks v. forth. Brazier v. Homewood. Ellen-Hicks) 3 East, 16. And see Byne v. borough, C. J. Sittings after E. T. Vivian, 5 Ves. 607, 8; 7 Ves. 23, 4; 8 1818. P. Ves. 136; 9 Ves. 492. 3. In ejectment by the grantee of an 10. But where an annuity, void for annuity, objected it cannot be that a want of inrolment, was rescinded by spetrustee under the annuity deed had exe-cial agreement, the grantee was permitted cuted, but his execution was not noticed to recover the full purchase money, with in the memorial. Doe, dem. Delegal and interest from the time when the annuity others v. Holloway, 1 Stark. 431. Ellen- ceased, without deducting the previous borough, C. J. 1816. payments. Beauchamp v. Borret, Peake, And the court refused a rule to enter 109. Kenyon, C. J. 1792. nonsuit. Ibid.

A. (b) How pleaded.

11. If, in consequence of the defect of the memorial of an annuity, the grantee sue his own attorney for negligence in preparing the assurances, the attorney, after paying his client the consideration, cannot recover it from the grantor. Burdon gent. v. Webb, 2 Esp. 527. Kenyon, C. J. 1797.

4. A plea that the consideration stated in the memorial has not been paid, is negatived by proof of the acceptance by the grantor of a banker's check in pay12. Where money is advanced upon ment, though a money consideration be an agreement for an annuity, to be stated in the memorial. Franco v. Lin-charged upon a specific estate, and no do, 1 Esp. 300. Buller, J. 1795.

B. CONSIDERATION WHEN RECO

VERABLE.

steps are taken by the borrower to effect the grant, the amount may be recovered in an action for money had and received. Richards v. Borrett, ubi supra.

13. If to debt on the annuity-bond a defect in the memorial be pleaded, and the plaintiff enter a nolle prosequi, he may recover the consideration in_an action for money had and received. Este v. Broomhead, 3 Esp. 261. Kenyon, C. J. 1801.

5. Where an annuity is set aside by the act of the court, or the grantor, upon the discovery of a defect in the securities, refuses to execute fresh assurances, the purchase money may be 14. Where an annuity is set aside, recovered in an action for money had and the purchase-money is to be considered

as a debt accruing to the grantee at the moment it is paid; it is therefore barred by the certificate of the grantor, who becomes a bankrupt subsequently to the grant of the annuity, though no steps be taken to set it aside until after the certificate. Walker v. Liscarray, 6 Esp. 98. Ellenborough, C. J. 1807.

And see Baxter v. Nichols, 4 Taunt. 90; 14 Ves. 574; Ex-parte Granger, 10 Ves. 349, 51.

APPRENTICE.

(And see PENAL ACTION A. (a) (c); WITNESS F.; AGENT D. 101.)

A. SUBMISSION.

(And see ante, AGENT 44, post, B. (b) 8.)

1. Trustees submitting to arbitration do not become personally liable, without Davies v. Ridge and proof of assets. others, 3 Esp. 101. Kenyon, C. J. 1800. Sed vide Barry v. Rush,, 1 T. R. 691; Pearson v. Henry, 5 T. R. 8; Worthington v. Barlow, 7 T. R. 453. B. AWARD.

(And see Doe v. Morpeth, 3 Taunt. 378.)

B. (a) Operation of award upon the matters referred.

2. It is stated to have been ruled, that 1. Indentures of apprenticeship for a an award made upon a reference of all less period than seven years, contrary matters in dispute between the parties, is to 5 Eliz. cap. 4, s. 26, may be avoided no bar to a suit upon a cause of action in a collateral action against a surety for which existed at the time of the rethe good behaviour of the apprentice. ference, unless it be shewn that such Burney v. Jennings, 6 Esp. 8. Ellen-cause of action was laid before the arbiborough, C. J. 1806. trators. Martin v. Thornton, 4 Esp. 180. Alvanley, C. J. 1802.

S. P. Guppy v. Jennings, 1 Anst. 256. And see Ashcroft v. Butler, 6 T. R. 653; Gray v. Cookson, 16 East, 13.

2. To recover back a premium paid on an indenture, void by 8 Ann. c. 9, § 39, for not stating the true sum, plaintiff must shew that he was not party to the fraud. Shepherd v. Hall, 3 Campb. 180. Ellenborough, C. J.

1812.

And see STAMPS, A. 3. And as to the mode of calculating the premium, see Rex v. Bradford, 1 M. and S. 151.

ARBITRAMENT.

A. SUBMISSION.

B. AWARD.

(a) Operation of, upon the matters referred.

(b) How enforced.

(c) When available in collateral proceedings.

(d) How construed.

C. ARBITRATOR.

D. UMPIRE.

S. P. contra Smith v. Johnson, 15 East, 213.

And see Bradford v. Bryan, Willes, 268, S. C. 7 Mod. 349; Ravee v. Farmer, 4 T. R. 146; Ingram v. Milnes, 8 East, 445; Crofton v. Connor, 1 Bro. P. C. 530; Jones v. Bennet, ibid, 528; Elsom v. Rolfe, 2 Smith, 459.

3. But that the arbitrator might be called to prove that the plaintiff claimed an allowance on that account. Ibid.

4. And that such proof was admissible under a plea of not guilty, to an action for a malicious arrest. Ibid. And see Paramore v. Johnson, 1 Lord Raym. 566. S. C. 12 Mod. 376.

5. It is within the jurisdiction of an arbitrator to direct a party to go before a government commissary, and verify vouchers. Athyns v. Baldwyn, 1 Stark. 202. Gibbs, C. J. 1815.

B. (b) How enforced. (And see AssUMPSIT F.; EVIDENCE C. (b))

6. An award upon a parol submission, may be given in evidence under the count for an account stated. Keen v. Batshore, 1 Esp. 194. Eyre, C. J. 1794.

7. Or under a count upon the original 461; George v. Lousley, 8 East, 13; demand. Kingston v. Phelps, Peake, Fitzgerald v. Geaves, 5 Taunt. 342. 227. Kenyon, C. J. 1794.

8. But to affect the defendant, it must be shewn that the plaintiff was also a party in the submission. Ibid.

D. Umpire.

14. Where the submission is to A.

S. P. Antram v. Chace, 15 East, 209. and B., and such third person as they 9. In an action on an award, made shall appoint, to prove that A. and B. purs ant to a judge's order, the rule of appointed C., it is not enough to shew court made thereon, is sufficient proof that C. acted with them in the arbiof the order without producing it. Still tration, and to put in an award executed and another v. Halford, 4 Campb. 17. by the three, wherein the appointment Ellenborough, C. J. 1814. of C. is recited. Still and another v. Halford, 4 Campb. 17, Ellenborough, C. J. 1814,

B. (c) When available in collateral proceedings.

(And see post, ASSUMPSIT F. N.; EviDENCE C. (c)).

10. An award upon a parol submission of the damages sustained by the plaintiff, may be given by him in evidence in an action of tort; and it can only be resisted by that which would have vitiated the award, if it had been directly in issue. Baily v. Lechmere, 1 Esp. 377. Kenyon, C. J. 1795.

11. Semble, that an award, made after issue joined, cannot be given in evidence under the original pleadings, but must be pleaded puis darrein continuance. Storey v. Bloxam, 2 Esp. 504... Kenyon, C. J. 1796.

And see Thomlinson v. Arriskin, 1 Com. Rep. 330; Hawkins v. Colclough,

1 Burr. 275.

B. (d) How construed.

12. Semble, that upon an award directing the defendant to assign leasehold premises to A. according to law, he cannot be required to execute an assignment to A., his executors, administrators, and assigns.. Russel v. Headington, 1 Stark. 13. Ellenborough, C. J.

1815.

C. ARBITRATOR.

Sed vide Lee v. Gansell, Gowp. 1. And see 4 Taunt. 407, Burdett v. Abbott.

2. A defendant cannot be arrested by original between the return day of the writ and the quarto die post. Parrot v, Mumford, sheriff of Kent, 2 Esp. 585.

13. The law raises no implied pro-Eyre, C. J. Maidstone, 1797. mise to pay an arbitrator for his trouble. Virany, executor, v. Warne, 4 Esp. 47. Kenyon, C. J. 1801.

And see Miller v. Robe, 3 Taunt.

A. (b) Protection from arrest.

3. If a bankrupt surrender within the forty-two days, the commissioners may

Ibid.

enlarge the time for taking his examin-the search until the written discharge ation, without an order from the chan-arrives. cellor; and the privilege from arrest extends to such enlarged time. Davis v. Trotter, sheriff of Surrey; 3 Esp. 40. Kenyon, C. J. 1799.

And a nominal verdict having been taken against the sheriff for an escape,

the court of K. B. directed a nonsuit to be entered. Ibid, and 8 T. R. 475.

B. ON CRIMINAL CHARGES.

B. (a) By warrant.

before a magistrate and liberated on 13. The father of a bastard brought condition that he find sureties, may, if

Acc. ex parte Jackson, 15 Ves. 116. he neglect to procure them, be retaken And see ex parte Johnson, 14 Ves. upon the same warrant, provided the Ex parte Higginson, 12 Ves. 496.magistrate be alive. Dickinson v. Brown, 4. A bankrupt attending a dividend et alt. 1 Esp. 218, and Peake, 234. Kenyon, C. J. 1794. meeting several years after his last ex- 14. A warrant to arrest a person,

amination is privileged from arrest.
Arding v. Flower and Blackhall, 3 Esp.
117. Kenyon, C. J. 1800.
S. C. 8 T. R. 534.

the next session of Oyer and Terminer," "that he may be bound to appear at may be executed at any time. Mayhew

1798.

5. Though he attend upon a notice. Hill, et al. 2 Esp. 683. Kenyon, C. J. from the messenger without a summons from the commissioners. Ibid.

6. Defendant in a civil suit, is protected in coming to attend the trial. Solomon v. Underhill, 1 Campb. 229. Ellenborough, C. J. 1808.

S. P. Lightfoot v. Cameron, 2 Bla.

1113.

And see Childerston v. Barrett, 11 East, 439; Tidd, 196.

Sed vide PRACTICE, I. (b) 2. 7. And if he be arrested eundo, the judge will grant a habeas corpus to discharge him. Ibid.

And see Tidd, 5th ed. 784; 6th ed. Bro. Abr. 6 tit. Privileges, &c. per totam. And will put off the trial. Ibid.

8. But this must be upon payment of

costs; unless it appear that the plaintiff

And the court of K. B. refused a rule to set aside nonsuit. Ibid, and 8 T. R. 110.

B. (b) Without warrant.

15. A constable may of his own authority take a party into custody for a mere assault committed in his presence Coupey v. Henley, Whale and Webste. 2 Esp. 540. Eyre, C. J. 1797.

16. But, if he were not present at the affray, he cannot arrest without a warrant, unless there be ground for supposing that a felony will ensue.

ASSUMPSIT.

Ibid.

colludes with the arresting creditor. Ibid. (And see LIMITATION OF ACTIONS A.)