foreign bill, as different consequences resulted and different rules of law were applicable to foreign and inland bills. Another point was raised by the demurrer in this case, on which the Court gave no conclusive judgment, and which it seems extraordinary should not have been before settled, namely, whether it be competent for the indorser of a bill to set up as a defence in an action by the indorsee, that the bill was not drawn by the person purporting to be the drawer. The Court of Common Pleas held in a late case that the acceptor of a bill was stopped from disputing the drawing, and as suggested in the judgment in Armani v. Castrique, whatever be the legal merits of the plea, the fact of indorsement would be almost irresistible evidence as to the drawing and prior indorsement. HODGSON V. WARDEN. 13 Mees. & W. 22. Pleading. Excuse for want of Profert, when sufficient, When a defendant by his plea relies on a deed to which he is a party or privy, he is required to make profert of the instrument. Thus in an action against the maker of a promissory note, where the defendant pleaded a release by the plaintiff, under an assignment to trustees for the benefit of creditors, and as an excuse for profert, the defendant pleaded that there was but one part of the deed, and that it had always been in the possession of the trustees, who refused to permit the defendant to have the possession thereof, the Court of Exchequer held the excuse insufficient, observing, that as there was but one part of the deed, the trustees held it as trustees for all the parties interested; and that although the refusal of the trustees to permit the defendant to have the deed for the purpose of profert, may render them liable in damages, it would not justify a departure from the settled rules of pleading. When a surety guarantees the payment of money, and afterwards relies on an indenture of release from the plaintiff to the principal, he may plead the release without profert, for there is no privity of interest between the principal and surety, since the latter only contracts with the creditor.2 SANDERS V. COWARD. 13 M. & W. 65. Pleading. Statute of Limitations in Debt on Bond. Declaration on a bond. The defendant craved oyer of the bond and condition. The condition appeared to be for the payment of a sum of money, and also for the performance of certain 1 Sanderson v. Coleman, 4 Man. & G. 209., 4 Sc. N. R. 638. 2 Bain v. Cooper, 8 Mees. & W. 751. covenants contained in a deed. After setting out the condition, the defendant pleaded, that "the cause of action did not accrue within twenty years next before the commencement of the suit." Special demurrer, on the ground that the defendant should have shown by his plea whether he pleaded to the cause of action in respect of the original forfeiture of the bond, or with reference to the subsequent breaches of the condition, which might be one or many. In support of the plea it was urged, that it followed the words of the 3 & 4 Wm. 4. c. 42., which enacted that all actions upon any bond or specialty should be commenced within twenty years after the cause of such action or suit, but not after. For the plaintiff it was argued, that the cause of action or suit meant the right to sue. The Court of Exchequer held that the plea was bad, as it left it doubtful what the defendant meant, and ought to have shown distinctly that there had been no breach of the condition of the bond within twenty years next before the commencement of the suit. ALEXANDER V. ANDERDON. 6 Beav. 405. Practice in Equity. Summary Relief. In this case the defendant petitioned for a taxation of his solicitor's bill of costs, on the footing of a special agreement, and for an inquiry to ascertain what was due from him to the latter generally; praying also a declaration that a certain promissory note had been satisfied. As it thus appeared that the relation between the defendant and his solicitor was something more than the ordinary one of solicitor and client, Lord Langdale, M. R., was of opinion that the Court, under such circumstances, had no authority to grant relief upon petition, but that it was open to the client to file a bill, if he thought proper. His Lordship had previously decided the same point', upon a somewhat similar application, by a country solicitor against his London agent. RE WARWICK RAILWAY COMPANY. 13 Sim. 31. Practice in Equity. — Payment of Money out of Court. In pursuance of the standing order of the House of Commons, a deposit of 10l. per cent. on the capital of this railway company had been paid into the bank in the joint names of several of the projectors. The Act of Incorporation having been obtained, the persons in whose names the money was standing presented a 1 In re Smith, 4 Beav. 309. petition under the Act, praying that the amount might be paid to Mr. Glyn, who was banker to the company; and the Vice Chancellor of England made the order accordingly. The general rule, however, has been, that where a sum of money exceeds 10l. it cannot be paid out of court to any person but the party entitled to it; and in Attorney-General v. Barnard at the Rolls, where two trustees of a charity prayed that certain monies in court, distributable among the objects of the charity, might be paid to one of the trustees for the purpose of distribution, Lord Langdale, M. R., declined to make an order in that form, and directed the money to be paid to both the petitioners.1 BREESE V. JERDEIN, BEAUMONT, & BRADLEY. 4 Q. B. 585. For the protection of persons acting in the execution of the Metropolitan Police Act (10 Geo. 4. chap. 44.), sect. 41. provides, that in case of an action against any person for any thing done in pursuance of the Act, "notice in writing of such action, and of the cause thereof, shall be given to the defendant one calendar month at least before the commencement of the action." The defendant Beaumont, being an officer of the metropolitan police, was served with a notice, one calendar month before action, of the intention of the plaintiff to issue a writ of summons for the detention of the plaintiff, without reasonable or probable cause, on or about the 27th May last past, and for his imprisonment afterwards in the Compter. The Court of Queen's Bench held, on the authority of Martins v. Upcher2, that the notice was insufficient, as it omitted to describe the place where the act complained of occurred. The case referred to was decided upon the statute 24 Geo. 2. c. 44., which, though the language is not precisely similar, is substantially the same as that of the Metropolitan Police Act. In Martins v. Upcher, it was further decided, that the omission to specify the place at which the act complained of occurred, is not cured by the magistrate pleading a tender of amends.3 1 Trin. T. 1839, M. S.; and see Shortbridge's case, 12 Ves. 28. 23 Queen's Bench, 662. 3 In a more recent case in the Exchequer, where the notice stated that the plaintiff was arrested at St. Asaph, in Flintshire, on the 30th of January, on a charge of felony, that he was taken in custody from thence to Denbigh, and detained in custody on such charge for twelve hours, and also, that he was, on the same charge, taken before certain magistrates, the court held the notice sufficient and observed that too much strictness ought not to be required in notices o this kind. Jones v. Nicholls, 2 D. & L. 425. HAWKINS V. BENTON and another. 2 Dowl. & Lowndes, 465. Practice at Common Law. Personal Service of Rule directing Payment of The statute 1 & 2 Vict. c. 110. s. 18. enacts, that "all rules of Courts of Common Law, whereby any sum of money, or any costs, charges, or expenses shall be payable, &c. shall have the effect of judgments." To enable parties to issue execution on a rule of Court for payment of money due on an award, and avoid the inconvenient procedure by attachment, the Courts under this statute, have established the practice of calling upon the party liable to pay, to show cause why he should not pay the sum awarded and specified in the rule. The occasional difficulty of effecting personal service of the award and master's allocatur, before applying for the rule, has, however, suggested a consideration of the question, whether personal service might not in some cases be dispensed with? In the above case, Pattison J. stated the practice to be, that in cases of this kind the same formalities should in general be observed as in cases of motions for attachments, but that, under special circumstances, such strictness might be dispensed with; and where it clearly appeared from the admission of the party, that he was aware of the award and its contents, the learned judge granted a rule to shew cause why he should not pay the sum awarded, although there had not been a personal service. Alexander v. Anderdon, 233, LIST OF CASES. Attorney-General v. Fitzgerald, 216. Breeze v. Jerdein, Beaumont, and Brooks v. Fitzball, 221. Commissioners of Charitable Donations 212. Cooke v. Crawford, 217. Courtenay v. Williams, 221. Coward v. Sanders, 232. Craig v, Miller, 208. Crawford v. Cooke, 217. Devereux v. Commissioners of Cha- Dibdin v. Winter, 227. Dunford and Others v. Trattles, 230. Fitzgerald v. Attorney-General, 216. Gladstone v. Attorney-General, 216. Hall v. Palmer, 207. In Re Henry Lloyd Harris, 229. Jerdein, Beaumont, and Bradley, v. The London and South Western Rail- LIST OF CASES Morrish v. Murray, 228. Quanyon v. Toogood, 228. Regina v. The Grand Junction Railway Company, 224. Regina v. The London and Southwestern Rallway Company, 224. Regina v. Nott, 229. Roden v. Ryde, 227. The Sussex Peerage, 204. Thompson v. Attorney-General, 212. Trattles v. Dunford and Others, 230. Warden v. Hodgson, 232. Re Warwick Railway Company, 233. |