(5). By Assignee of Bail-bond. In an action by an assignee of a bail-bond, the declaration stated that the sheriff, "by an indorsement on the said writing obligatory duly made and sealed with the seal of the officer of the said sheriff, assigned the said writing obligatory to the said plaintiff, according to the form of the statute:"-Held, on special demurrer, that the declaration was good, and that it was not necessary to state in the declaration that the assignment was under the hand of the sheriff, and executed in the presence of two witnesses. Lewis v. Parkes, (See also post, IV. (8).) 133 said with a breach, that, through the defendants' negligence, they were damaged. Plea, non assumpserunt : Held, that the ownership of the defendants was not admitted by the plea. A plea denying a particular fact alleged in the declaration does not admit other immaterial allegations in the declaration. Quære, whether it admits the other material allegations, so that they may be taken as facts to go to the jury? Bennion v. Davison, 179 (2). Evidence under General Issue. 1. Declaration in case against a sheriff for a false return to a fi. fa., stated the judgment and writ; that the writ was delivered to the defendant as sheriff, to be executed; and that, although there were then and afterwards, before the return of the writ, goods of the debtor within the defendant's bailiwick, whereof he could and ought to have levied the monies indorsed on the writ, and although a reasonable time to have made the levy had elapsed, yet the defendant, not regarding his duty, did not within such reasonable time levy the money, but therein wholly failed and made default, nor hath he paid the money, or any part thereof, to the plaintiff'; and the defendant afterwards falsely returned nulla bona :-Held, that the defendant could not set up as a defence, under the plea of not guilty, that the debtor had assigned the goods to a third party. Lewis v. Alcock, 188 2. In debt, the defendant cannot give in evidence, even in mitigation of damages, under a plea of nunquam indebitatus, or set-off, money payments made by him to the plaintiff. Cooper v. Morecraft, 500 (4). When bad as amounting to General Issue. 1. Case for the negligent manage ment of a train of railway carriages, whereby it ran against another train, in one of which the plaintiff was rid.. ing, and injured him. Plea, that the parties having the management of the train in which the plaintiff was, managed it so negligently and improperly, that, in part by their negligence, as well as in part by the defendants'. negligence, the defendants' train ran against the other, and caused the injuries to the plaintiff:-Held, that the plea was bad in form, as amounting to not guilty; and in substance, for not shewing, not only that the parties under whose management the plaintiff was were guilty of negligence, but also that by ordinary care they could have avoided the consequences of the defendant's negligence. Bridge v. Grand Junction Railway Company, 244 2. Assumpsit for money paid. Plea, as to 500l., parcel, &c., actionem non, because the defendants say that heretofore, to wit, on the 11th of January, 1836, they were possessed of a certain bill of exchange theretofore drawn by the defendants upon, and accepted by one Mason, whereby they required Mason to pay to their order 500l., six months after the date thereof, and thereupon, in consideration that the defendants would indorse and deliver the said bill to the plaintiffs, the plaintiffs promised and agreed with the defendants to lend to, or pay, lay out, and expend for the defendants the sum of 5007., from time to time, in such sums and in such manner as the defendants should thereafter require or direct, and to hold and retain the bill of exchange, for and on account and as payment of the said sum of 500l.; and the defendants further say, that they did endorse and deliver the said bill to the plaintiffs, and the plaintiffs then took and received the same from the defendants, and still hold the same for and on account and as payment of the said sum of 5001 so agreed to be lent or paid, laid out, and expended, for the defendants as aforesaid; and the defendants say that the sum of 500l. parcel, &c., in the introductory part of the plea mentioned, is composed and made up of divers sums of money lent to, and paid, laid out, and expended for the defendants on account of the bill, and in pursuance of the said promise and agreement. Verification:-Held, on special demurrer, that the plea was bad, as amounting to the general issue. Maude v. Nesham, 502 (5). Payment into Court. 1. In assumpsit, the first count was on an agreement whereby the defendant engaged the plaintiff as courier for five months certain, at ten guineas a month, and agreed, in case she discharged him before the end of the five months, to pay him the fifty guineas and his expenses back to Paris or England; and the count, after averring that the plaintiff served the defendant two months, and was ready and willing to serve for the remainder of the five months, alleged as a breach that the defendant refused to continue him in her service, and dismissed him before the end of the five months, and refused to pay him the fifty guineas, or any sum towards his expenses back. There was another count for 52. 10s. for wages as the defendant's hired servant. The defendant pleaded, 1st, as to the first count, except as to 21., parcel, &c., that the plaintiff. wrongfully quitted her service; 2nd, as to the first count, except as to the said sum of 211,, that she dismissed him for improper conduct; 3rd, as to the second count, except as to 214 parcel, &c., non assumpsit; and 4th, payment into Court of 841, 18s. in the form given by the new rules for a plea of payment into Court on the whole declaration. Replications, join ing issue on the first and third pleas, de injuria to the second, and to the fourth, damages ultra. At the trial, the jury found for the plaintiff on the first issue, and for the defendant on the second and third:-Held, that the plaintiff was entitled to judgment on the whole record, at least for nominal damages. Fischer v. Aidè, 486 2. Declaration in assumpsit, against assignees of a bankrupt, stated that the plaintiff had agreed with the bankrupt, before his bankruptcy, to permit him to take stones from the plaintiff's quarry at a certain price, for a church which he, the bankrupt, had undertaken to build, and that he took therefrom stones to the amount of 501.; that the defendants, as his assignees, adopted his contract for building the church, and thereby became bound by its equities, and so liable to pay the plaintiff the 501.; and that afterwards they took from the quarry stones for the same purpose to the amount of 401. Plea, as to the agreement of the plaintiff with the bankrupt, non assumpsit; as to the residue of the causes of action, payment into court of 6l. 12s. 11d.; which the plaintiff accepted in satisfaction of that sum. The jury having found for the defendants on the first issue:-Held, that the admission in the plea of payment into court did not entitle the plaintiff to have a verdict entered for him on the other issue. Twemlow v. Askey, 495 3. A declaration in debt stated that the defendant was indebted to the plaintiff in 751. (made up of five counts for 15. each), and, giving credit for 107. paid, concluded for a balance of 651. The particulars also gave credit for the 107., and claimed balance of 12l. 11s. 6d. The defendant pleaded, 1st, nunquam indebitatus, except as to 10l. 13s., parcel &c.; 2d, as to 10l., other parcel, (payment before action brought) 3d, A plea of set-off stated that, at the time of the commencement of the action, the plaintiff was indebted to the defendant in sums of money exceeding the debt claimed by the plaintiff, but omitted to add, "and still is" indebted:-Held, on demurrer, that the plea was bad. Dendy v. Powell, 442 (8). Immaterial Traverse, Declaration in assumpsit stated, that the sheriff had seized goods of the plaintiffs under a fi, fa., issued on a judgment upon a warrant of attorney, which was executed by the plaintiffs and R., for the use and benefit of the defendant, and to S., as his trustee, and as a security for monies due from the plaintiffs and R. to the defendant; that the goods continued in the hands of the sheriff; and thereupon it was agreed between the plaintiffs and the defendant, that the plaintiffs should give the defendant two other warrants of attorney, one for the amount due on the judgment, the other for a debt due from R. to the defendant, and that the defendant should procure the goods to be re-delivered to the plaintiffs; that the plaintiffs did accordingly give the defendant the two warrants of attorney, but the defendant did not then or within a reasonable time, procure, nor has he, although a reasonable time has elapsed, procured the goods to be re-delivered to the plaintiffs. Plea, that the warrant of attorney in the declaration mentioned to have been executed by the plaintiffs and R., was not given for the use and benefit of the defendant, or to S. as his trustee : Held bad, on special demurrer, as traversing an immaterial allegation. Held, also, that the declaration was good on general demurrer, although the warrants of attorney were not set out, and although there was no averment of a request to the defendant to cause the goods to be re-delivered. Radford v. Smith, V. Replication, &c. (1). De injurid. 254 1. Trespass for assaulting plaintiff, and striking him with a bludgeon, and with the said bludgeon striking and pushing him down to and upon the ground. Pleas, first, not guilty; secondly, as to assaulting, beating, and illtreating the plaintiff, that defendant was possessed of a public-house, that plaintiff made a great noise and disturbance therein, and obstructed the business; whereupon defendant requested him to cease from making such noise and disturbance, and to leave the house, which he refused; whereupon defendant, in defence of his possession, molliter manus imposuit to remove plaintiff, and did remove him out of the house:thirdly, as to assaulting, beating, and ill-treating the plaintiff, son assault demesne. Replication to the two latter pleas, de injuriâ. At the trial, the Judge directed the jury, that, even though the plaintiff assaulted the defendant first, if the defendant struck the plaintiff with a bludgeon, he was Debt on bond conditioned for the payment of an annuity. Plea, that the writing obligatory was made after the passing of the 53 Geo. 3, c. 141, and that the annuity was granted for a pecuniary consideration, and that no memorial of the said writing obligatory, containing the names of all the witnesses thereto, and the date of the writing obligatory, and the names of all the parties thereto, or of the person for whose life the annuity was granted, and of the person by whom the annuity was to be beneficially received, or of the pecuniary consideration for granting the said annuity, or how such consideration was paid, or the annual sum to be paid thereby, was enrolled in Chancery. Replication, that a memorial was duly enrolled (setting it out), and averring that it contained the statements mentioned in the plea. Rejoinder, that the memorial contained divers false statements relating to matters of fact material to the validity of the annuity, especially in this, that the memorial imported and represented that the consideration for the annuity was paid in notes of the Bank of England, whereas it was never paid in such notes or otherwise, modo et formâ as in the replication alleged: and so the defendant again says, that there never A married woman had power, under her marriage settlement, to appoint certain lands to uses by her last will and testament, "signed and published in the presence of, and attested by, three or more credible witnesses." The reversion in the same lands, subject to certain life estates, was also vested in her. She made a will, containing a devise of all her property real and personal, but not referring to the power. The attestation stated the will to be signed, sealed, and delivered by the testatrix in the presence of three witnesses, whose names were subscribed:-Held, that the will was a due execution of the power. Delivery is equivalent to publication of a will. Curteis v. Kenrick, (2). How destroyed. 461 By indentures of lease and release, dated in December, 1819, and by fine and recovery, certain lands were settled to such uses as W. T. D. and F. his wife should, at any time during their joint lives, by deed or other instrument in writing duly executed, direct and appoint; and in default of appointment, to the use of W. T. D. for life, with remainder to trustees to preserve contingent remainders; then to the use of the wife for life, with remainder to trustees to preserve contingent remainders; then to the use of the sons of W. T. D. and F. in succession in tail general; and then to the use of the daughters in tail ge. neral, with cross remainders, and with remainder to W. T. D. in fee. In 1824, W. T. D. took the benefit of the Insolvent Act, and conveyed to the provisional assignee all his interest in the premises, which was subsequently transferred by the provisional assignee to the assignee of the estate, in the usual way. In September, 1828, W. T. D. and F. his wife, in execution of their joint power of appointment, by indentures of lease and release conveyed the premises to trustees in fee, upon trust for benefit of all the creditors of W. T. D.:- Held, that the power of appointment was not destroyed by the conveyance to the provisional assignee, and that the power was well executed by the indentures of lease and release of September, 1828, so as to convey the estate for life of the wife and the estates tail of the children to the trustees under that deed. Jones v. Winwood, PRACTICE. 653 I. Rule to Plead. (1). When to be entered. There is no irregularity in entering a rule to plead before notice of declaration, but on the same day. Aikman v. Conway, 71 II. Staying Proceedings. 1. On a motion for costs of the day, a stay of proceedings cannot be had, although two days' notice of the motion be given. Eager v. Cuthill, 60 2. Proceedings against the sheriff, in an action against the acceptor of a bill of exchange, will be stayed on payment of the debt and costs in that action only, notwithstanding there is an action pending against the drawer also. Vaughan v. Harris, 542 III. Setting aside Proceedings. The rule requiring a term's notice before any step be taken in a cause, after the lapse of four terms, does not apply to a motion to set aside proceedings for irregularity, but only to |