AFFIDAVIT TO HOLD TO
BAIL.

An affidavit to hold to bail for debts

due on several accounts, on which
the defendant is arrested for the
aggregate of all the sums due, is
bad in toto," if bad as to any one
of the debts stated, and defendant
will be discharged. Baker v. Wills,
M. 1832.
182
Affidavit to hold the drawer of a bill,
or indorser of a note, to bail, should
state that the acceptor or maker
had not paid the amount. Smith
v. Escudier, M. 1832.
219
An affidavit to hold to bail for money
lent was held bad for not stating
by whom the money was lent.
In re Smith and another v. Stephens,
M. 1832.
An affidavit to hold to bail on a note
payable by instalments should show
them to be due, and it will not be
sufficient to state that the said sum
has not been paid. Hart v. Myer-
ris, M. 1832.
238

219

An affidavit to hold to bail on a bill
or note should state the amount for
which it is drawn. Brooke v. Cole-
man, E. 1833.
593
Semble, that the allegation that the
defendant was indebted to plaintiff
in a sum stated will not aid an
affidavit to hold to bail which is
otherwise insufficient. S. C.

AMBASSADOR.

See SHERIFF.

AMENDMENT.

In general. See 869.

The name of the official assignee,
(see 1 & 2 W. 4. c. 56. s. 22.) was
omitted in the declaration by assig-
nees of a bankrupt, but the Court
allowed it to be amended by in-
serting his name.
Baker and ano-

233

ther, Assignees of Bankrupt, v.
Neave, Bart. M. 1882.
In a declaration by an indorsee against
an indorser of a bill accepted pay-
able at a particular place, it is suffi-
cient to allege in the declaration a
presentment to the drawer, without
stating any acceptance, and to prove
a presentment at a particular place
and refusal of payment there. The
declaration stated the drawer to
have drawn the bill payable to his
order, and to have indorsed the
bill to the defendant, and the de-
fendant to the plaintiff; whereas it
was in fact made payable to the
order of the defendant, the payee,
who indorsed to the plaintiff.
Semble, that the judge exercised a
right discretion in allowing the re-
cord to be amended under 9 G. 4.
c. 15. but, quære, if the Court in
banc have power to revise the
judge's exercise of that discretion.
Parkes v. Edge, H. 1833. 364
See also, as to amendment, under 9
G. 4. c. 15., where the judge re-

A., a solicitor to a company for build-
ing a bridge, procured one F. to
hold shares for him on his under-
taking that he (A.) should pay the
deposits and all calls on them.
F's name was accordingly regis-
tered as a shareholder. 4. then
sued a member of the company for
money paid and journies taken in
the service of the company: Held,
that he being in fact the real part-
ner could not recover at law against
his co-partner, no account having
been settled or balance struck. A
payment had been made to the
plaintiff on account, but unappro-
priated at the time of payment:
Held, that it must be applied to
his legal demand accruing due be-
fore any act by him to become a
partner, and not to a subsequent
equitable one. Goddard v. Hodges,
M. 1832.
209
Semble, if that payment had not been
so applied the plaintiff might have
sued at law for that prior demand.

APPURTENANT.
See WAY.

S. C.

ARBITRATION AND AWARD.

Where it was agreed that in case an

arbitrator should award a certain annuity to be bought by the executors for the widow of their testator, he "should or might" award the same; with a proviso, that in case of a deficiency of assets of the testator the annuity should abate in a certain specified proportion: Held, that under these words it was imperative on him to insert that proviso in his award. Crump v. Adney, H. 1833. 270, 279 Arbitrators having power to appoint an umpire, nominated one accordingly, who made his award, reciting his nomination by them, but misdescribing the Christian name of one of them: Held, that as in an action on the award the recital of the appointment of the umpire would be unnecessary, the award remained in force, and an attachment lay to enforce it. Trew v. Burton, E. 1833. The affidavit of publication of an award should show in the body that the day on which it was so published was within the time limited for making the award; but it is sufficient if the jurat show that it was sworn before that time had run out. S. C.

559

the plaintiff's shopman. The plaintiff demanded payment for the whole, and was not informed by the defendants that part had been returned. He afterwards arrested them for the higher sum, but failed to recover the item charged for the article returned: Held, that there was reasonable and probable cause for the arrest for the higher sum; and the Court refused to grant the defendant his costs under 43 G. 3. c. 46. s. 3. Roper v. Sheasby and another, E. 1833. 486 In order to get costs under 43 G. 3. c. 46. s. 3. where the arrest is for more than the sum recovered, the defendant need not show malice, but want of "reasonable and probable cause." Erle v. Wynne, E.

And see WARRANTY. A defendant discharged from custody on mesne process, upon giving an undertaking, which was not performed, may be arrested a second time without a judge's order, under Reg. Gen. Hil. 2 W. 4. No. 7. Cantellow v. Freeman, E. 1833.

579 When a defendant is arrested by process in which his name is stated in initials: Held, that "due diligence" is used, so as to satisfy the 32d article in Reg. Gen. Hil. 2 W. 4. if his name is inquired for from different people likely to know, though not at his house or office, or of his immediate friends, it being sworn that the debt being large the defendant, a foreigner, was likely to leave this country if he got notice of any intended proceedings against him. Hicks v. Marreco, M. 1832 216 Defendant, as principal bailiff of a liberty, received a warrant directed to him and W. to arrest plaintiff. W. and L. were defendant's assistants. L., by order of defendant,

arrested plaintiff, telling him he must go with him to the Granby, a public-house; plaintiff answered very well; he was kept at that public-house till next day by L., who then delivered him to W., within twenty-four hours after the arrest; W. put plaintiff on a coach, which took him to the county gaol; defendant looked on and recognized that proceeding. An action having been brought for penalties incurred under 32 G. 2. c. 28: Held, first, that before plaintiff could be said to have refused to be carried to some safe &c. dwelling-house, he ought to have been asked by the officer arresting him to nominate such house, not being his own. Secondly, that the consent of the plaintiff to be taken to the inn was necessary in order to justify his being taken there, and that his mere acquiescence to the officer's requisition to do so was insufficient. Thirdly, the putting the plaintiff on the coach within twenty-four hours after the arrest in order to be carried to prison, was a carrying to prison within the act not justified by the plaintiff's merely neglecting to nominate a house to be taken to. Fourthly, that defendant was liable for W.'s act in so carrying plaintiff to prison within twentyfour hours. Dewhirst v. Pearson, H. 1833. Confirmed as to the first point by Simpson v. Renton, K. B., T. 1833, 5 B. & Adol. 36.

ASSESSED TAXES.

See SURETY.

ASSIGNMENT OF LEASE.

See Wolveridge v. Stewart.

242

637

ATTORNIES AND SOLICI-
TORS.

An attorney who, though not admitted

143

in the Exchequer, conducts an action there in his own name, notwithstanding 2 G. 2. c. 23. ss. 1-5 and s. 10. cannot recover his fees or costs out of pocket from his client, and has therefore no lien for them upon a judgment recovered. Thus the costs of one action may be set off against those of another, without allowing him such fees. Hyde v. Latham and another, and Latham v. Hyde, M. 1832. An attorney may recover for business done in the Middlesex Court of Requests without delivering a bill in pursuance of 2 G. 2. c. 23. s. 23. Becke v. Wells, M. 1832. 193 An attorney who had been admitted before 1815 and had taken out his certificate yearly, neglected to do so for the year ending Nov. 1816, but afterwards continued to take it out regularly, he practising at the Quarter Sessions in 1832: Held, that his admission and inrolment being void by 37 G. 3. c. 99. s. 31. he was liable for the penalties imposed by 22 G. 2. c. 46. s. 12. on persons not admitted as attornies, but practising as such at the Quarter Sessions. Slack, q. t. v. Wilkin, M. 1832. Where the name of an attorney the other Courts, but not of the Exchequer, was indorsed on process of this Court, proceedings were stayed till the name of an attorney of the Court was substituted, on payment of costs by the attorney so indorsed. Constable v. Johnson, M. 1832. Agreement not to tax attorney's bill discountenanced. Woosnam v. 375

Pryce, H. 1833.

158

of

231

A solicitor for the London creditors of a country bankrupt wrote a letter to the solicitor for the country cre• ditors, stating "I am willing on behalf of the London creditors to bear two-thirds of the expense of Messrs. B. and B. or such barrister

as you may think fit, for resisting K.'s proof under the commission, and investigating the accounts of the assignees at the meeting on the 18th instant; and I hereby undertake to bear and pay on behalf of the creditors two-thirds of the expenses incident thereto :" accordingly another meeting having been appointed the defendant declared he had no objection to bear as before the proportion of the expense of a barrister. Five meetings in all took place for the first-named object: Held, that the defendant was personally liable to pay two-thirds of the expenses of all the meetings. Hall v. Ashurst, E. 1833.

AUCTIONEER.

See DISTRESS.

BAIL AND BAIL BOND.

See MARRIED WOMAN.

420

A notice of bail should state the residence or residences of the bail to have been at the place or places in the notice of bail for (i. e. during) the last six months; and within the last six months, is incorrect; but in a case where the affidavit of justification accompanying the notice of bail, stated the bail to have resided at the (same) place named in the notice, for the last six months, the defect in the notice was held cured, and the bail was allowed. Ward's Bail, M. 1832.

208 Bail will obtain time for rendering a defendant who has been sentenced for an offence till a week after the imprisonment under the sentence shall have expired. Campbell v. Acland, M. 1832. 230 Where a sheriff has put in bail above, in order to render, and has obtained a judge's order for rendering at instance of himself and his bail, (see 11 G. 4. and 1 W. 4.

Country bail must state in their affi davit of justification, that each of them is worth the sum required in the terms of Reg. Gen. 2 W. 4. No. 19; and time to amend an affidavit, stating them to be possessed, will not now be allowed. Rogers v. Jones, H. 1833. 256 The assignment of a bail bond, with

out more, is not a step in a cause. Woosnam v. Pryce, H. 1833. 375 When the condition of a bail bond is broken, and the bail are fixed by assignment taken, time given by the plaintiff to the original defendant, without their privity, will not discharge them. S. C. Since 2 W. 4. c. 39, the commencement of an action takes place at the issuing of a writ of summons; therefore where a plaintiff, having taken an assignment of a bail bond, sued out process thereon against the bail on the day within which the time for putting in bail above expired, the proceedings were set aside for irregularity, with costs, as premature, no cause of action having accrued till the next day; and the circumstance that the writ against the bail was not served till the 11th, made no difference. Alston v. Undershill, H. 1833. 427 Though a scire facias on a recognizance of bail cannot be tested before the return day of the ca. sa. against the principal, it may after. Sandland v. Claridge, T. 1833. 804 The four days for which it must lie in the sheriff's office need not be in term. S. C.