days last past next before the pleading of the said plea: Held, that the plea was ill, there being no precise averment that the matter of defence had arisen after the last continuance; and semble, that even if the averment in the affidavit had been sufficient, it could not be read in support of the plea. The entry on the record of the award of respite to the jury amounts to a continuance. Continuances are from day to day as well as from term to term. Trespass for taking, detaining and impounding goods, and that thereby the goods were lessened and damaged; the plea applied to the taking, &c., and left the lessening and damaging unanswered; plaintiff pleaded over without marking judgment of nil dicit for the part of the declaration uncovered by the plea: Held, that he had not thereby worked a discontinuance. Atkinson v. Nesbitt, 9 Ir. L. R. 271.

9. Statute-Proviso and exception - Condition precedent.-A local act for paving and improving the town of Salford appointed commissioners for putting it into execution, and authorized them to pave the new streets; and provided that the expenses of such new pavements should be paid and reimbursed to the commissioners by the owners or occupiers of the land adjoining the streets in manner therein mentioned, and empowered the commissioners to recover such expenses by action at law. A subsequent section, commencing "provided always and be it enacted," directed that before the commissioners should cause the streets to be paved as aforesaid, they should in the first place give notice to the owner or occupier of every house, land, &c. adjoining the street, requiring him to pave the same as the commissioners should direct; and if any such owner or occupier should for six months neglect to pave pursuant to the notice, then it should be lawful for the commissioners, and they were thereby required, to cause the same to be done, and to recover the expenses from such owner or occupier as thereinbefore mentioned: Held, that the giving of this notice was a condition precedent to the commissioners executing the paving themselves, and charging the expenses on the owner or occupier, and that it must be averred in the declaration in an action brought under the act for the recovery of such expenses. The Mayor, &c. of Salford v. Ackers, 16 M. & W. 85.

10. Trespass Colour Reversion- Condition-Vi et armisDeparture.-Trespass quare domum fregit. Plea, that M. being seised in fee of the messuage in the declaration mentioned, demised to L. for twenty-one years, who demised it to the defendant for the residue of that term less one day. It then gave colour, that under colour of a charter of demise pretended to be made to the plaintiff, whereas nothing passed by it, &c.; and then justified the trespass. Replication, that before the demise to the defendant by L., he demised to F. for three years, and that F. assigned his term to the plaintiff. Rejoinder, that the demise to F. was subject to a proviso for re-entry reserved to L. his executors, administrators and assigns, in case of non-repair; that the messuage was not kept in repair, and the defendant entered in pursuance of the proviso: Held, first, that the defendant was an assignee within the 32 Hen. 8, c. 34, and could

therefore avail himself of the condition of re-entry; secondly, that although livery of seisin is rendered unnecessary by the 8 & 9 Vict. c. 106, s. 2, in order to pass an estate of freehold, the colour given by the plea did not show a title in the plaintiff; thirdly, that the allegation vi et armis does not import a breach of the peace; and, fourthly, that the matter alleged in the rejoinder was not a departure from the plea. Wright v. Burroughes, 4 D. & L. 438.

11. Trespass-De injuria-New assignment-Impounding distress in house of tenant.-Trespass for breaking and entering plaintiff's dwellinghouse, locking the doors and expelling the plaintiff. Plea, justifying all the trespasses, except the expulsion, under a distress for rent, alleging that defendant kept and impounded it in the dwellinghouse, &c., and in order safely to impound and keep it necessarily locked and fastened the doors of the dwellinghouse, and afterwards caused the goods to be duly appraised and duly sold in satisfaction of the rent and costs of distress and sale. Replication, that defendant broke, &c. the house, locked the doors, and seized, took and converted the goods of his own wrong, and for another and different purpose than that mentioned in the plea, i. e. for the purpose of ejecting, &c. the plaintiff from the possession of the dwellinghouse, concluding with a verification. Demurrer. Semble, that the replication was bad for not traversing defendant's entry for the purpose of distraining, and concluding to the country, instead of raising an immaterial issue on the intention of the defendant in entering. Semble also, that the plea need not aver notice of the distress with the cause of taking to have been given according to 2 Will. & Mary, sess. 1, c. 5, s. 1, and that the plea, having perfectly answered the seizure, was not rendered bad in substance by going on unneces sarily to answer matters of mere aggravation laid in the declaration, viz. the conversion of plaintiff's goods: Held, that the plea should have shown that the house, or that part of it of which the doors were locked, was the most fit and convenient place for securing the distress, or the tenant might be improperly kept out of possession. Woods v. Durrant, 16 M. & W. 149.

12. Trespass-Plea of heriot custom-De injuriâ.-In trespass for taking chattels, if the defendant justifies the seizure under a heriot custom, the plaintiff may reply de injuriâ absque tali causa. And if there are several pleas claiming several heriots in respect of different tenements, one replication de injuriâ will suffice. Price v. Woodhouse, 16 M. & W. 1; 4 D. & L. 286.

13. Trespass--Plea justifying breaking and entering a dwellinghouse on suspicion of felony.-A plea justifying the breaking and entering a house without warrant, on suspicion of felony, ought distinctly to show, not only that there was reason to believe that the suspected person was there, but also that the defendant entered for the purpose of apprehending him. Smith v. Shirley, 3 C. B. 142. And see AMENDMENT. ANNUITY. BILLS AND NOTES, 2, 3. CASE, 1-5. COAL LEASE. DEMURRER. DEMURRER. DETINUE. EXECUTOR AND ADMINISTRATOR, 1, 2. FOREIGN JUDGMENT. GUARANTEE,

2. HUSBAND AND WIFE, 1, 2. LIBEL AND SLANDER, 2-6. LIMITATION, 2, 3. MALICIOUS ARREST, 1. PATENT, 2, 3. PAYMENT, 1-4. RELEASE, 2. SHERIFF, 2. TRover.

POST-MARK. See EVIDENCE, 2.

POSTPONEMENT OF TRIAL. See COSTS, 5.

PRACTICE.-1. Amending judgment-Plea of non assumpsit in action on bill of exchange.-Where the defendant pleads non assumpsit to the whole of a declaration, consisting of a count on a bill of exchange and money counts, the plaintiff cannot sign judgment generally. And the court will not allow him to amend the judgment by confining it to the count on the bill on entering a nolle prosequi on the other counts. Eddison v. Pigram, 16 M. & W. 137; 4 D. & L. 277.

2. Appearance of defendant-Affidavit and merits.-If an attorney be sued in this court in autre droit by bill, no writ having been issued against him, his proper course is to come in and move to set aside those proceedings; if he appear and plead or demur, he waives his objection. If the character of either plaintiff or defendant sufficiently appear on the face of the declaration to found the jurisdiction of this court as to him, that is sufficient to give this court jurisdiction in the action. What is a sufficient affidavit of merits to ground a motion for liberty to plead after a demurrer overruled. Kehoe v. Wright, 9 Ir. L. R. 261.

3. Appearance sec. stat. by plaintiff in person.-Where a plaintiff sues in person he may in person appear for the defendant sec. stat., although that case is not provided for in the forms given in the schedule to the second section of the Uniformity of Process Act, 2 Will. 4, c. 39. Smith v. Wedderburne, 16 M. & W. 104; 4 D. & L. 296.

4. Attorney's privilege-Waiver.--Where an attorney is sued as such jointly with an unprivileged person the declaration will be set aside for irregularity, and the circumstance of the defendants having compelled the plaintiffs to give security for costs is not a waiver of the irregularity. Johnson v. Sparks, 9 Ir. L. R. 139.

5. Demurrer-Striking out pleadings.-On a rule for striking out a demurrer under Reg. Gen. Hil. 4 Will. 4, r. 2, the court set it aside and struck out the pleadings connected with it, the defendant to pay plaintiff's costs of preparing for trial and attending to try the cause and of the application to set aside the demurrer and take short notice of trial, or judgment to be for plaintiff on the whole record. Tucker v. Barnesley, 16 M. & W. 54; 4 D. & L. 292.

6. Frivolous demurrer-Signing judgment-Irregularity.-In an action by drawer against acceptor of a bill of exchange, the defendant pleaded (amongst other pleas concluding to the country) that the plaintiff indorsed the bill to a person unknown, who at the time of the commencement of the suit was the holder thereof, and entitled to sue the defendant thereon. The plaintiff replied that the said person was not at the time of the commencement of the suit the holder

of the bill, concluding to the country. The plaintiff having added the similiters and delivered the issue, the defendant struck out the similiter to the above replication and demurred specially. A judge at chambers ordered the demurrer to be set aside as frivolous, and that the plaintiff be at liberty to sign judgment on the plea in question. The plaintiff signed judgment on that plea, tried the other issues, and obtained a verdict, the defendant not appearing at the trial. On a motion to rescind the judge's order and set aside the trial and subsequent proceedings: Held, that as the rule did not ask to set aside the issue there was no irregularity in the trial: Held also, Alderson, B., dissentiente, that the judgment signed was irregular, there being other pleas on the record covering the whole cause of action. Talbot Bulkeley, 4 D. & L. 306.

V.

7. Judge's order-Making it a rule of court--Reg. Gen. Trin. Term, 3 Vict.--A motion to make a judge's order a rule of court, and for the costs of the application, is absolute in the first instance if made upon the affidavit required by Reg. Gen. Trin. Term, 3 Vict. Black v. Lowe, 4 D. & L. 285.

8. Particulars--Stay of proceedings. --Where a defendant obtains an order for particulars with a stay of proceedings, he may give notice of abandoning the order for particulars and demur or plead to the declaration without getting the original order rescinded. Maunder v. Collett, 4 D. & L. 456.

9. Particulars-Stay of proceedings-Time to plead after dismissal of summons for particulars. Where a defendant, having obtained an order for time to plead, takes out a summons for particulars, which is dismissed after the expiration of the time given for pleading, he is entitled only to the remainder of the same day for pleading. Mengens v. Perry, 15 M. & W. 537.

10. Peremptory order for time to plead, effect of.-An order peremptory for time to plead does not preclude the defendant from again applying by summons for further time, and if he take out such further summons judgment signed for want of a plea after the summons is returnable is irregular. Beazley v. Bailey, 16 M. & W. 58; 4 D. & L. 271.

11. Peremptory undertaking, enlarging.-A plaintiff, who is prevented by accident from trying pursuant to his peremptory undertaking, should come to the court to have it enlarged, and not proceed to trial after the time limited in his peremptory undertaking has expired; and where he did not do so, but gave a fresh notice, and proceeded to trial after the time limited by his undertaking had expired and obtained a verdict in the absence of the defendant, who refused to attend, the court set aside the verdict so obtained with costs. Bushell v. Slack, 4 D. & L. 388.

12. Short notice of trial.-Where a defendant is under terfus to take short notice of trial, if necessary, it lies upon the plaintiff to show the necessity of a shorter notice than the ordinary one. And where the defendant being under such terms, the plaintiff delivered a replication on the 14th May, which on the 19th he abandoned and deli

Common Law.

vered another with the similiter added; on the 21st obtained an order to try before the sheriff; on the 23rd delivered the issue with notice of trial on the 28th; and on the latter day tried the cause as undefended and obtained a verdict, the court set it aside with costs on the ground that the plaintiff had had time to give the ordinary notice. Drake v. Pickford, 15 M. & W. 607.

13. Signing judgment-Motion for new trial after the four days. -Leave was given to a defendant to move for a new trial after the first four days of a term, but the name of the case was not inserted in the new trial motion paper, nor was any notice of the circumstances given to the plaintiff. The plaintiff signed judgment on the fifth day of the term. A rule for a nonsuit or new trial was afterwards served on the plaintiff's attorney. A rule was granted to discharge that rule, but was ordered to stand over till the merits of the first granted rule should be disposed of. The defendant's proper course would have been to have moved to set aside the judgment. Lloyd v. Berkovitz, 16 M. & W. 31.

14. Striking out counts on same subject-matter - Lateness of motion-Appeal to court from judge.-A defendant applied by summons at chambers to strike out counts, on the ground that they related to the same subject-matter of complaint. The summons was heard on the 14th of November, when it was dismissed with costs. On the 19th the defendant made a similar application to the court: Held, too late. Semble, that an appeal lies to the court where a Chapman v. King, 4 D. & L. judge has refused to make an order. 311.

15. Trial of issues in fact-Demurrer-Writ of error.--Where there are issues in fact as well as in law on the same record, and the defendant has obtained judgment on demurrer to pleas going to the whole cause of action, but the issues in fact remain untried, the court will not compel the defendant to enter up a judgment of nil capiat per breve before the trial of the issues in fact, in order that the plaintiff may bring a writ of error without trying the issues in fact. Hinton v. Acraman, 4 D. & L. 462.

16. Waiver of irregularity.-Taking out an attested copy of a declaration waives an irregularity in the notice of its being filed and. the rule to plead. Cannon v. Wellington, 9 Ir. L. R. 138.

COSTS. DEMURRER. JUDGMENT AS IN
And see ARREST.
CASE OF NONSUIT. NISI PRIUS. QUARE IMPEDIT. RELEASE, 1.
STAYING PROCEEDINGS. VENUE.

PRESENTMENT. See CERTIORARI.

PRINCIPAL AND SURETY. - Composition deed- Reserve of remedies against sureties.-The plaintiff, a shareholder in a banking company, became a surety for advances to be made by the company to the defendant. The defendant afterwards executed a composition deed, to which the plaintiff and the banking company were parties, whereby he assigned his property to trustees for the benefit of his creditors; and this deed contained a stipulation for a reserve of remedies against sureties for the defendant. The plaintiff having