ultra the sum brought in. Hitchcock v. 28. Nor will taking out of court a less Tyson, 2 Esp. 482, n. Buller, J. 1786. sum than the sum sworn to, subject the 22. The payment of money into court plaintiff to an action for a malicious arupon a count in a valued policy, in rest. Jackson v. Burleigh, 3 Esp. 34. which the loss is averred to be total, is Kenyon, C. J. 1799. no admission that the loss is total. Rucker and another v. Palsgrave 1 Campb. 557. Mansfield, C. J. 1808. And the court of C. P. refused a rule to set aside nonsuit; 1 Taunt. 419. And see Waldron v. Coombe, 3 Taunt. 162.

But it admits the interest, as averred in the declaration; Bell v. Ansley, 16 East, 146.

So it admits all facts stated in the counts, on which the money is brought in; Godsall v. Boldero, 9 East, 72, 9. 23. Plaintiff may be nonsuited after payment of money into court. Ibid.

Acc. Elliott v. Callow, 2 Salk. 597; Cox v. Robinson, Cas. Temp. Hardw. 206; Kabell v. Hudson, 4 T. R. 10; Burstall v. Horner, 7 T. R. 372.

24. And the defendant cannot demand a verdict. Smith v. Vale, 2 Esp. 607. Kenyon, C. J. 1797.

29. In an action of covenant, if money be paid into court upon one of the breaches assigned, the execution of the deed is admitted. Randall v. Lynch, 2 Campb. 357. Ellenborough, C. J. 1810.

30. And if the defendant bring in money generally upon a declaration containing a count on a bill of exchange, he cannot take advantage of an improper stamp. Israel v. Benjamin, 3 Campb. 40. Ellenborough, C. J. and K. B. M. 1811.

Acc. Gutteridge v. Smith, 2 H. Bla. 374. 31. Payment of money into a superior court is a conclusive admission of the plaintiff's right to sue in such court. Miller v. Williams, 5 Esp. 19. Ellenborough, C. J. 1803.

32. And where the plaintiff declares in one count for work and labour as a surgeon, it is such an admission of the Cont. Jenkins v. Tucker, 1 H. Bla. plaintiff's right to sue in that capacity 93, dict. per Loughborough, C. J.; as precludes the defendant from giving Gutteridge v. Smith, 2 H. Bla. 376, evidence that the plaintiff is, or assumes dict. per Heath, J. to be, a physician. Lipscombe v. Holmes, 2 Campb. 441. Ellenborough, C. J. 1810.

25. But semble, that where plaintiff takes money out of court, and does not move to set the nonsuit aside, he is precluded from bringing a fresh action. Rogers v. M'Carthy, 3 Esp. 106. Kenyon, C. J. 1800.

33. Proof of the rule to pay money into court will entitle the plaintiff to a verdict, unless the costs have been paid. Hasburgh v. Orme, 1 Campb. 558, n. 1 Burt. 171, 2. Ellenborough, C. J. 1808.

26. Where goods are tortiously taken by the defendant, who brings in money generally upon a declaration containing 34. If, after action brought, the debt a count for goods sold, it will be pre-be paid without a rule of court, the sumed that the parties agreed to convert plaintiff must have a verdict. Atkinson the transaction into a contract of sale. v. Thornton, 1 Campb. 559, n. Bennet v. Francis, 4 Esp. 28. Cham- borough, C. J. 1808; Holland v. Jour bre, J. 1801. dine, Holt, 6. Gibbs, C. J. 1815.

Ellen

S. P. Toms v. Powell, 7 East, 536; S. C. 3 Smith, 554.

Ánd the court of C. P. discharged a rule for setting aside a verdict for the plaintiff. Ibid. and 2 Bos. & Pul. 31. 35. Although a receipt be given for 27. Where money is taken out of debt and costs. Holland v. Jourdine, court, and the costs are taxed and paid, Holt, 6. Gibbs, C. J. 1815. the plaintiff is not concluded from shew- 36. Payment of money into court ing in a collateral action, that the money can be proved only by producing the was accepted merely to put an end to rule. Israel v. Benjamin, ubi supra. litigation. Hildyard v. Blowers, 5 Esp. 37. Or an office copy. Still v. Hal69. Ellenborough, C. J. 1803. ford, 4 Campb. 17. Ellenborough, Acc. Nichols v. Philips, 3 Anst. 636. [C. J. 1814.

38. Where one party clandestinely honoured duplicate notices of dishonour draws and accepts a bill in the name of were written, and that a letter was dethe firm, partly for a demand which the livered to the defendant of a bill, topayee has against the partnership, and gether with the proof of notice to propartly for his own debt, the payee, induce the letter so delivered, as containing an action against all the partners, can notice of dishonour, is evidence (in deonly recover against the former part of fault of production) that the defendant the consideration, though money be had notice. Roberts v. Bradshaw, 1 paid into court on the counts on the bill. Stark. 28. Ellenborough, C. J. 1815. Barber v. Backhouse and others, Peake, 61. Kenyon, C. J. 1791.

D. ORDER FOR PRODUCTION OF
PAPERS.

44. An instrument will be presumed to be stamped, against a party refusing to produce it. Crisp v. Anderson, 1 Stark. 35. Ellenborough, C. J. 1815.

45. But the contrary may be proved.

Ibid.

39. In an action in C. P. upon a po46. D. as surety for A. binds himself Icy of insurance, a judge at chambers to pay B. the balance of account due will make a general order on the assured from A. within six months after notice, to produce, upon affidavit, all papers in parol evidence of such notice cannot be his possession relating to the cause. given, without notice to produce it, Goldschmidt v. Marryat, 1 Campb. 562. since it operates, not merely as a notice, Mansfield, C. J. 1809. but as a statement of accounts. Grove and another v. Ware, 2 Stark. 174. Ellenborough, C. J. 1817.

And see Clifford v. Taylor, 1 Taunt. 167; Campbell v. French, 1 Anst. 50; Potts v. Adair, ibid. 259; Gabbitt v. Cavendish, 2 Anst. 547.

E. NOTICE.
(And see TROVER, B.)

E. (a) How served.

40. Notice to produce papers served at the attorney's office on the evening be fore the trial, after the attorney has left the office, is too late. Sims v. Kitchen, 5 Esp. 46. Ellenborough, C. J. 1808.

E. (b) Notice to produce papers, &c. where necessary.

41. Where a number of placards are printed, and a party adopts and uses some of them, all the rest are duplicate originals, and one of them may be read against such party, without notice to produce. R. v. Watson, 2 Stark, 190. K. B. 1818.

E. (c) Effect of.

47. After a notice to defendant to produce cheques, the plaintiff calls for one of them. All are put into his hand, and after looking them over, he selects one. Held, that as the plaintiff did not take the first that offered itself, defendant is entitled to have the whole read. Speer v. Watts. Holroyd, J. Taunton Spring Assizes, 1818.

E. (d) Notice to dispute consideration.

48. Semble, That between immediate parties the consideration may be impeached without notice. Green v. Deakin and others, 2 Stark. 347. Ellenborough, C. J. 1818.

49. In an action by indorsee against acceptor, the defendant cannot, by merely giving notice that such proof will be required, compel the plaintiff to shew what consideration he has given; before 42. The non-production of books, such proof can be called for, some susupon notice merely, entitles the oppo-picion must be thrown upon the plainsite party to give secondary evidence; tiff's title. Reynolds v. Chettle, 2 Campb. it does not authorise the jury to specu- 596. Ellenborough, C. J. 1811. late upon the probable contents. Cooper, 50. S. P. Clark v. Elliott, Selw. N. P. et ult. v. Gibbons, 3 Campb. 364. Gibbs, 304. London sittings, B. R. after M. T. J. 1813.

43. Proof that upon a bill being dis

1811.

51. It was afterwards held that where

such notice has been given, the plaintiff Doe d. Fisher v. Prosser, Cowp. 218; must make the proof of consideration Peaceable, d. Hornblower, v. Read and part of his case, and not reserve it for others, 1 East, 568; Oates d. Wigfall the reply. Delaney v. Mitchell, 1 Stark. v. Brydon and others, 3 Burr. 1897; 439. Ellenborough, 1815; and Hum-Adam's Ejectm. 2d edition, 318; Doe bert v. Ruding, Chitty on Bills, 512. d. Hellings v. Bird, 11 East, 49. Ellenborough, C. J. 1817.

52. But the present Chief Justice has, at Nisi Prius, declared the former to be the correct course. Chitty, 512, note (3).

G. ENTERING THE RECORD.

59. It is the rule on all the circuits 53. Semble, that the notice of action that where business is not done on the against a magistrate must be indorsed commision day, causes must be entered by an attorney who has taken out his before the court sits, on the day when certificate. Sabin v. De Burgh and business is begun. Skeye v. Voyce, 3 others, 2 Campb. 196. Ellenborough, Campb. 365. Bayley, J. Worcester,

C. J. 1809.

1813.

54. But proof that the attorney had 60. But under special circumstances ordered his clerk to take out his certifi-the court will listen to an application cate, and had given him money for that for leave to enter a cause afterwards. purpose, is sufficient evidence of quali- Ibid.

fication. Ibid.

H. PUTTING OFF TRIAL.

(And see ante, Costs, A. (a) 1, 2.)

55. After notice to the defendant, a ship-owner, to produce letters, &c, the plaintiff may give secondary evidence of a document relating to the vessel, in the custody of the captain, on account 61. An affidavit to put off a trial on of the privity between captain and account of the absence of a material owner. He is not bound to subpoena witness, may be made by the attorney the former. Baldney and another v. in the cause. Duberley v. Gunning, Ritchie, 1 Stark. 338. Peake, 97. Kenyon, C. J. 1797.

56. In an action by A. as assignee of B. against M. a notice, entitled A. as

S. C. not S. P. 4 T. R. 651.
And see Sullivan v. Magill, 1 H.

signee of B. and C. against M., is insuf-Bla. 637. ficient, though the commission was 62. And the motion may be made on against B. and C. jointly. Harvey and the day on which the cause stands for others, assignees of Harvey, v. Morgan, trial. Ibid.

2 Stark. 17. Ellenborough, C. J. 1816. 63. Or called on. Hart v. Whitelocke, And the court refused a rule for Barnes, 452.

a new trial. Ibid.

64. In answer to an application to put 57. The defendant cannot, in strict-off a trial, an affidavit may be read ness, cross-examine the plaintiff's wit- which was made before the affidavit on nesses as to the contents of papers, which the motion was made. Brooke, though the plaintiff refuses to produce esquire, v. Wellington, esquire, Graham, them in that stage of the cause. Side- B. Bristol, 1819. ways v. Dyson and another, 2 Stark. 49. Ellenborough, C. J. 1817.

F. CONSENT RULE.

65. And it appears to be no objection to such affidavit that it was sworn before a commissioner in the country, and transmitted to town (but not used) for another purpose. Ibid.

58. In ejectment for an undivided 66. An application may be made at moiety, the plaintiff is bound to give nisi prius to postpone the trial of a evidence of an actual ouster, or to prove a chancery issue. Buxton v. Lawton, the consent rule confessing ouster. Doe 4 Campb. 163. Gibbs, C. J. 1815. d. White v. Cuff, 1 Campb. 173. Ellenborough, C. J. 1808.

And see Reading's case, 1 Salk. 392;

67. A judge at nisi prius will not either accelerate or retard a trial, in expectation of the interference of a court of

L. JUDGMENT AS IN CASE OF A
NONSUIT.

equity. Goldschmidt v. Marryatt, 11 ditch and another, 1 Stark. 63. EllenCampb. 559. Mansfield, C. J. 1809. borough, C. J. 1815. 68. A judge at nisi prius will, on the application of the plaintiff, make an order for putting off the trial from one day in the sittings to another, on account of the indisposition of a witness. Ansley v. Birch, 3 Campb. 333. El-judgment as in case of a nonsuit, where lenborough, C. J. 1813. the judge at nisi prius, after the open69. But the defendant is entitled to ing of the pleadings, stops the cause as costs. Ibid.

76. The defendant is not entitled to

not fit to be tried.

Henkin v. Gerss, 2 70. And the plaintiff will not be al-Campb. 408. K. B. E. 1810. lowed to put off the trial beyond the sittings. He must withdraw the record. Ibid.

And see Westm. 2. cap. 46; 2 Inst. 256.

71. A trial will not be put off, upon a motion at nisi prius, to enable the plaintiff to substitute an excuse for profert. Paine v. Bustin, 1 Stark. 74. Ellenborough, C. J. 1815.

I. WITHDRAWING THE record.

72. Counsel retained by the plaintiff, who have not received their briefs, have no power to withdraw the record.

S. C. 12 East, 248.

And see Anon, Bunb. 17; Sav. 57, pl. 122.

M. TRIAL.

(And see ante, PLEADING, A. (c).)

M. (a) In what county.

77. Felonies in Wales, created since 26 Hen. VIII. cap. 6. are triable in the next English county. Rex v. Window, 1811. 3 Campb. 78. Le Blanc, J. Hereford,

Abitbol v. Beneditto, 2 Campb. 487. M. (b) Attendance and demeanour of Lawrence, J. 1810.

And the chief justice ordered the nonsuit to stand. Ibid. Mansfield, C.

J. 1810.

S. C. 3 Taunt. 225.

K. NONSUIT.

parties.

78. At the trial of an information against a peer for a misdemeanour, the defendant is not entitled to sit covered, or to have a place assigned to him. The King v. Lord Abingdon, 1 Esp. 226, and Peake, 236. Kenyon, C. J. 1794.

73. A judge at nisi prius will direct a nonsuit, on the ground of the non- 79. A prisoner, who is a party to a performance of a condition precedent, suit, is not entitled to be brought up to although the objection is on the record. hear the trial. Thelluson v. Coppinger, Sadler v. Robins, 1 Campb. 256. EI- 3 Esp. 283. Kenyon, C. J. 1801. lenborough, C. J. 1808. And see Anon. 2 Salk. 544; Rex v.

74. Where assignees are nonsuited, Feilding, Comb. 29; Meekings v. Smith, they are not entitled to the costs occa-1 H. Bl. 636; Cole v. Hawkins, Andr. sioned by a notice to dispute the trading. 275. Act of bankruptcy, and petitioning creditors' debt, Appendix.

80. But a defendant is protected from arrest in coming to attend the trial. 75. One indictment against A. and Solomon v. Underhill, 1 Campb. 229. another against A. and B. are entered Ellenborough, C. J. 1808.

for trial as common jury causes by the S. P. Lightfoot v. Cameron, 2 Bla. defendants, special juries having been 1113. And see Childerston v. Barrett, struck in both by the prosecutor: the 11 East, 439; Tidd, 196.

prosecutor cannot, if he withdraw the 81. And if he be arrested, eundo, the first record with a view to reverse the judge will grant a habeas corpus to disorder of trial, prevent the defendant charge him, and will put off the trial. from being acquitted. Rex v. Houl-Ibid.

And see Tidd, 784. judge at nisi prius to try the cause upon 82. But this must be upon payment a statement that it would occupy no of costs; unless the plaintiff appears to more time than a common cause." have colluded with the creditor. Ibid. Ibid.

83. The plaintiff's attorney is not 89. In criminal cases a judge cannot bound to attend the trial of the cause. certify for the costs of a special jury. Dax v. Ward, 1 Stark. 409. Ellenbo-The King, on the prosecution of Sermon, rough, C. J. 1816. v. Lord Abingdon, 1 Esp. 226. Kenyon, C. J. 1794.

S. P. H. 21, E. 3, fo. 46, pl. 64. And see T. 11, E. 4, fo. 2, pl. 4; 90. Upon application made to appoint Manning's Exchequer Practice, 585, particular days for the trial of special 586. jury causes, where there was no de

84. He is therefore not responsible for fence, Lord Ellenborough said, "I wish a failure occasioned by his own absence, this to be understood to be the rule in concurring with that of a witness whose future. If the jury has been reduced, attendance he had reason to expect. and a case be made out, shewing that Ibid.

M. (c) Particular defences, where excluded.

85. A defendant, under terms not to give coverture in evidence, cannot shew that the goods were delivered on the credit of the husband. Snell v. Rice, Peake, 235, and 1 Esp. 221. Kenyon,

C. J. 1794.

there is no defence, I will appoint a particular day, that the plaintiff may have the benefit of the trial; but if the jury has not been reduced, the trial must come on as a common jury cause," 1 Stark. 31. Guildhall, 1815.

91. A judge cannot certify for the costs of a special jury the day after the trial. Waggett v. Shaw, 3 Campb. 316. Ellenborough, C. J. 1812.

92. If, during the course of a trial for And see Tidd, 564. a felony, one of the jurymen becomes 86. Semble, that an award made after incapable of going through his duty, issue joined, cannot be given in evi-the remaining eleven are to be dis dence under the original pleadings, but charged, and a new jury is to be charged must be pleaded pais darrein conti- with the prisoner in the usual form. nuance. Storey v. Bloxam, 2 Esp. 504. Rex v. Edwards, 3 Campb. 207. Wood, Kenyon, C. J. 1796. B. Monmouth, 1812, and Cam. Scacc.

See Thomlinson v. Arriskin, 1 Com. E. 1812, where two anonymous cases Rep. 330; Hawkins v. Colclough, 1 to the same effect were cited.

Burr. 275.

M. (d) Jurg

And see post. STATUTE, pl. 1; WIT-
NESS, C. (d); ante, K. 75.)

S. P. Rex v. Ann Scalbert, Leach, Cro. Cases, 706.

And see Appendix.

M. (e) Verdict.

93. One of several defendants in an 87. Where the defendant has served a action ex delicto, against whom the rule for a special jury, but none has plaintiff has laid no evidence before the been struck, the plaintiff may try the jury, is not entitled to a verdict of accause in its regular order as a common quittal upon the closing of the plaintiff's jury cause. Farmer and another v. case. Huxley v. Berg and another, } Richards and another, 2 Stark. 369. Stark. 98. Ellenborough, C. J. 1815. Ellenborough, C. J. 1818. 94. But the plaintiff cannot impli

88. And upon a motion for a new trial eate him by evidence adduced to rebut the court said " that it was incumbent the case set up by the other defendants. upon a party who meant to have his Ibid.

cause tried by a special jury, to pursue 95. Upon an indictment against A., the object in all its steps, and to do B., C., and D., for a conspiracy, it is every thing in his power in order to competent to the prosecutor to state enable the other party to apply to the that he has no evidence to offer against