infancy. Lord Chief Justice Gibbs. This may be a very good plea, and I spectively see no objection to the judgment being set aside, on payment of costs. Per Cur. Rule absolute. See Stra. 12. 420; 1 B. &. P. 228. 11. ANON. E. T. 1813. C. P. 4 Taunt. 885. considered pleas to the merits. fused fair terms of The plaintiff having signed an interlocutory judgment by the neglect of the Showing defendant, a rule nisi to set it aside was obtained, upon an affidavit of merits. the defend It appeared that the action was brought against the defendant, who was an ant had re executor, for a simple contract debt of the testator, and that there were specialty debts of the testator outstanding, to the amount of all the personal assets compro which had come to the defendant's hand. Counsel showed cause, upon an mise, is a affidavit, which stated that the defendant was not only executor, but also good an heir to the testator; that land of the value of 2001. a year had descended swer to an to him, which was liable for the specialty debts; that the plaintiff had offered application to refer all matters, and to empower the arbitrator to marshal the assets in a to set aside course of equitable distribution, and was willing to wait for the payment of his judgment own debt until the land should be sold, and the purchase-money received; plead. which offer the defendant had refused; and upon this ground the counsel contended, that as it was discretionary in the court to set aside the judgment, and The affida as the defendant had refused so liberal an offer, he was not entitled to the indul- vit of mer gence of being let in to plead there were specialty debts unsatisfied. But the its to sup Court thought that, as the defendant had refused the very fair terms which part a mo had been offered him, they ought not to interpose in his favour, and discharged aside a judg the rule. for leave to tion to set ment regu larly sign the defend 12. MORRIS V. HUNT. H. T. 1819. K. B. 1 Chit. Rep. 97. It appeared that in an affidavit in support of the motion, the deponent swore ed, must be to merits, without describing himself either as the defendant's agent or attor-made by ney; and the Court said that it was not competent for a third person to swear ant himself to merits, without describing himself as the attorney or agent for the litigating his attor party; and therefore that part of the affidavit on the part of the defendant ney, or could not be received. agent; made by any other 13. NEESON V, WHYTOCK. H. T. 1811. C. P. 3 Taunt. 403. Rule nisi, on the usual terms, for setting aside an interlocutory judgment upon an affidavit of merits made by A. Mitchell, clerk to the defendant's atperson than torney. Cause was shown, upon the ground that the deponent had not sworn 665 | that he was either the defendant's attorney, or managing clerk to the defen- the defend dant's attorney. The court admitted that the objection was correct and dis- ant, he charged the rule. swear eith er that he is the de fendant's 14. PRINGLE V. MARSACK. H. T, 1822. K. B. 1 D. & R. 155. Time was given to put in other bail, on condition that the defendants should produce an affidavit of merits before the drawing up of the rule. It was now attorney, or produced on affidavit, stating that the defendant was advised and believed that managing he had a good defence to the action, but the affidavit omitted to state the words clerk to the upon the merits. The Court said, this was not a compliance with the terms. of the condition imposed, and therefore refused the grant for further time. 4. Wairing of latter. The affida vit must dis tinctly state 1. ELWOOD V. ELWOOD. T. T. 1732. C. P. Ca. Pr. C. P. 124; S. C. Prac. that the de Reg. 294. 4 Barnes, 251. fendant has fence on A motion was made to set aside the judgment in these causes, and the ir- a good de regularity complained of was, that the rules to plead were given before notice the merits. of the declarations being left in the office were served upon defendants, the The plain appearances having been entered by the plaintiff, and the proceedings upon tiff may in the act of parliament. It appeared that plaintiff's attorney finding his mis- all cases take waived his judgment, struck out the old, and gave new rules to plead, and waive a after they were expired, signed judgments again; and the question was, whe- judgment ther he could do so without leave of the Court. Per Cur. It is only one entry upon record in each cause, and the former judgments appear by the prothonotary's book to be signed by mistake, and the latter are regular. (f) Judgment "Non obstante veredicto." by default. When the ant obtains the Court, upón mo tion, will 1. 1. In what cases granted. STAPLE V. HAYDON. T. T. 1703, K. B. 1 Salk. 173; S, C. Carth. 370; S. Where the defendant pleads an ill plea, but the matter, if well pleaded, might have amounted to a good bar or justification, judgment can never be given against the defendant, as by confession; but where the matter, though never so well pleaded, could signify nothing, judgment may in such case be [ 666 ] give the de given as by confession; as if in case for calling him thief, the defendant should fendant justify for that he received a thief. See Burr, 301; Stra. 394; Cowp. 510; 1 Moore, 199; 8 Taunt. 413. leave to sign judg ment,*, Where, in issue, and 2. LEWIS V. CLEMENTS. T. T. 1820 K. B. 3 B. & A. 702. This was an action for a libel, which professed to contain a narrative of the an action, proceedings of the Court of Insolvent Debtors, on the application of a person for a libel, of the name of Carter, to be discharged from imprisonment. It begins the defend "Shameful conduct of an attorney," and then proceeds with a detail of speeant pleaded ches of counsel, the examination of the insolvent, and the observation of the the general judge. The defendant pleaded that the supposed libel contained a correct account of what actually passed in the court on the occasion alluded to. Issue eight spe was joined, and a verdict was found for the defendant on some pleas, and for cial pleas, and the ju the plaintiff on others. An application was made to the court by the plaintiff, found a that he might have judgment not withstanding the verdict, on the ground that before verdict for the pleas were bad in point of law. Per Cur. The matter was argued the plaintiff us at Serjeant's Inn, and we are all of opinion that the pleas are insufficient. on some The question, whether a person may publish a correct narrative of proceedout assess ings in a court of justice, which contains matter of defamation of a third pering damag son, not a party to the suit, it is not necessary to decide, because in this case es, and for the narrator has not confined himself to what actually passed in the court, but the defend has prefaced the statement with the words "Shameful conduct of an attorney." ant on the He has, therefore, taken upon himself to make that allegation concerning the other pleas the Court, plaintiff. We think, therefore, the pleas are bad, and that there must be judgon motion ment for the plaintiff not withstanding the verdict. pleas with to enter up for the plaintiff non obs 2. How entered and subsequent proceedings. I judgment 1. BROADENT V. WILKS. T. T. 1742. C. P. Willes, 364; S. C. Barnes, 266. Verdict for defendant on two issues joined upon not guilty, and a justification. By the special plea the trespass was confessed; judgment was ordered tante vere to be entered for the plaintiff's, notwithstanding the verdict, the trespass being dicto, al confessed by the special plea. The true method is, not to stay the entry of lowed it.† judgment upon the verdict by rule, but to enter the verdict upon record, and then judgment for the plaintiff, non obstante veredicto. In cases of judgment non obstante veredicto, the course is not to stay the entry of judgment upon the verdict by rule, but to enter the verdict upon record, and then the judgment for the plaintiff non obstante veredicto. 2. CLEMENT v. LEWIS. E. T. 1822. C. P. 3B. & B. 297. | 667] This spe An account of certain proceedings in a court of law was headed in a newspaper "Shameful conduct of an attorney." Pleas to a declaration in libel cies of that the alleged libel contained a faithful and true account of proceedings judgment is in gene It is always upon the merits, and never granted but in a very clear case; see 2 Smith, ral interlo 9; S. C. & Taunt. 237; S. P. Rocher v. Townsend, M. T. 45 Geo. 3. K. B; 2 Tidd. 953. But if a defendant pleads a justification insufficient in law, upon which time is taken, and the issue found for him, the Court will give the plaintiff leave to enter up judgment notwithstanding the justification. For this purpose, a motion for a rule to show cause must be made, which is afterwards made absolute or discharged in the usual way. It may be made at any time before judgment is given (2 Stra. 845.), though a new trial has been previously moved for Doug. 745. quiry must in a court of law were held ill. The jury having found for the defendant on six cutory, af out of eight pleas comprehended in the last of two issues, and for the plaintiffter which a on the residue of those pleas, and on the first issue without assessing damages; writ of in and the plaintiff having, pursuant to the decision of the Court of King's be sued out Bench, entered up, as to the pleas found for the defendant, judgment non ob- and execut stante veredicto, with an award of a writ of inquiry, and final judgment for the ed, and fin damages found by the inquisition, &c.; a Court of Error reversed the judg- al judgment signed as ment of the Court of King's Bench, as to the award of the writ of inquiry, in ordinary and the final judgment thereon; remitted the record to the Court of King's cases. Bench, and directed that Court to award a venire de novo to try the first issue Or if the da and the last, as far as related to the pleas on which the finding was for the mages be plaintiff, holding that the verdict found for the plaintiff on the first issue and not mate on the last (as far as regarded the pleas on which the finding was for the rial, the plaintiff) was void, because no damages had been assessed 3. SELEY V. ROBINSON. M. T. 1788. K. B. 2 T. R. 758. To an action founded on a custom for poor and indigent housholders in A., to cut and carry away rotten boughs and brances in a chase. fendant justified in trespass under such a custom, which was found for the court set aside the verdict on that issue, and entered a verdict plaintiff, with nominal damages. Court will set aside the verdict, living and enter a The de- verdict for him. the plaintiff the with nomi nal damag for es. If a defend verdict for 4. DA COSTA V. CLARKE, H. T. 1800. C. P. 2 B. & P. 376. The prothonotary in this case not having allowed to the avowant any costs ant in reple upon the pleadings subsequent to the pleas in bar, nor any costs of the trial, vin, after the counsel obtained a rule to show cause why he should not be directed to re- trial and view his taxation, and allow to the avowant the costs upon all the pleadings. theplaintiff The Court held, if an avowant in replevin after trial and verdict for the plain- obtain judg tiff, obtain judgment non obstante veredicto, in consequence of the plaintiff's ment non pleas in bar being bad, he is not entitled to any costs upon the pleadings subse-obstante quent to the pleas in bar, because he should have demurred to them. veredicto, the in consequence of the plaintiff's pleas in bar being bad, he is not entitled to any costs upon pleadings subsequent to the pleas in bar, be cause he should have demurred to them. VII. RELATIVE TO THE ARRESTING OF. See also Issue; Re pleader; Venire de novo. 1. PECHEY V. HARRISON. T. T. 1607. K. B. 1 Ld. Raym. 232. 1 Salk. 77. | 668 ] Id. 315. SUTTON V. BISHOP. H. T. 1769. K. B. 4 Burr. 2287. A judg The plaintiff being an infant, brought an action by guardian; and after a ment accor verdict for him, it was moved in arrest of judgment, that there was no warding to the modern rant for him to appear by guardian entered upon record. But the Court said rule can judgment can never be arrested, but for that which appears upon the record only be ar itself; that this admittance ought not to appear upon this record. rested for some mat * Amounting to a defect not amenable or aided by common law or by statute, and for ter appear which a writ of error would lie. As to the defects which are amenable or aided by coming upon mon law and by statute; see ante, tit. Amendment, and post, tit. Pleading, and 1 Saund. the face of the re 228. By the statutes of jeofails, the following defects are aided or cured after a verdict: the cord.* want of an original writ, see 18 Eliz. c 14; or bill upon the file, Hale, 130. 134. 264. 261. 304; variance in form only between the original writ or bill and the declaration, plaint, or demand, 21 Jac. 1. c. 13; want of form or pledges returned upon the original writ, or the omission of the sheriff's name in the return thereon, or want of pledges in any bill or declaration, 16 and 17 Car. 2. c. 8; want of a warrant of attorney for either party, see 18 Eliz. c. 14. 32 Hen. 8. c. 30; or appearance by attorney of an infant plaintiff, see 21 Jac. 1. c. 13; Barnes, 413; 1 Stra. 114; mispleading, lack of colour, insufficient pleading or jeofail, or other default or negligence of the parties, their counsellors or attorneys, 32 Hen. 8, e. 30; want of form in any count, declaration, plaint, bill, suit, or demand, see 18 Eliz. c. 14; lack of averment of any life, so as the person be proved to be alive, see 21 Jac. 1. c. 13; want of any "profert," or the omission of "vi et armis," or "contra pacem," mistaking the Christian name or surname of either party, see 3 Wils. 40; sums, day, month, or year, in any bill, declaration, or pleading, being right in any writ, plaint, roll, or record, preceeding, or in the same roll wherein the same is committed, to which the plaintiff might have demurred, and showed the same for cause; want of the averment of [ 669 | Hence, af a demurrer 2. EDWARDS v. BLUNT. E. T. 1720. K. B. 1 Stra. 426. Per Cur. After judgment on demurrer the defendant shall not come to arter judg rest the judgment on return of the inquiry, for an exception that might have ment upon been taken on arguing the demurrer. The parties cannot be said to come as a motion in amici curiæ, nor shall any body tell us that the judgment we gave on maarrest of ture deliberation is wrong; it is otherwise, indeed, in the case of judgment by judgment default, for that is not given in so solemn a manner; or, if the fault arises cannot be on the writ of inquiry on verdict, for there the party could not allege it be made, whe ther the demurrer were ar gued. Or not fore. 3. CRESWELL V. PACKHAM. E. T. 1816. C. P. 6 Taunt. 650; S. C. 2 Marsh. 326. S. P PRINCE V. NICHOLSON. T. T. 1814. C. P. 5 Taunt. 665; S. C. 1 Marsh. 401. Application was made, on a former day in this term, to arrest the judgment on several grounds, the principal of which was, that the agreement on which the action was brought had been entered into between the defendant and eight other persons; whereas the action was brought by one only. The counsel showed cause against the rule, and made a previous objection that there had been judgment on demurrer, after which the defendant could not move to arrest the judgment, according to Edwards v. Blunt, see 2 Stra. 424. "hoc paratus est verificare," or "verificare per recordum," er prout patet per recordum;" or the want of a right venue, so as the cause were tried by a jury of the county where the action is laid, or any other matters of like nature, not being against the right of the matter of the suit, nor whereby the issue or trial are altered, see 16 & 17 Car. 2. c. 8; 7 T. R. 583; 2 East, 580; misjoining the issue, see 32 Hen. S. c. 30; awarding the "venire facias," "habeas corpora," or "distringas," to a wrong officer upon insufficient suggestion; misawarding the "visne" out of more or fewer places than it ought to be (so as some one place be right named); misnomer of any of the jury (so as, upon examination it be proved to be the same man that was meant to be returned); want of return of the said writs (so as a panel of the names of the jurors be annexed to the writs), or omission of the sheriff's or other officer's name (so as it be proved that the writ was returned by the sheriff or other officer), see 21 Jac. 1. c. 13. If a "venire" be of the same action and between the same parties. all other faults in it are amendable, see Gilb. C, P. 174: but if, in ejectment, the "venire" be of a plea of trespass, omitting an ejectment of form, it is ill because not in the same action, see Cro. Jac. 528; but if the distringas" had been right, the Court would have adjudged the "venire" to be null, and the want of it is aided see Cro. Jac. 175. Cro, Car. 275. 278. The 21 Jac. 1. c. 13. does not extend to the Christian name of the juryman, and a mistake in that is incurable, see 5 Rep. 42; but the Court of Common Pleas refused to set aside a verdict because one of the jurors was named Henry in the "venire," "habeas corpora," and postea," his name being Harry, see Barnes, 454; and the Court of King's Bench would not set aside the verdict where one of the juryinen had answered to his father's name, and served as his father, see 12 East, 229. However, there must be a panel returned; and if the sheriff return twenty-three on the "venire" and twenty-four on the "habeas corpora" or "distringas," and the twentyfourth omitted on the "venire" appear and be sworn, the verdict will be void, see Cro. Car. 278; Bull N. P. 224. The statute 32 Hen. 8. c. 30 is confined to actions at common law; and in all the subsequent statutes of jeofails, there is a proviso that they shall not extend to criminal proceedings, see 4 Geo. 2. c. 26. A discontinuance is cured by the appearance of the party, in penal as well as other actions, see 6 T. R. 225; and the omission of a "similiter" is holden to be amendable, see Cowp. 407; 1 Stra. 551; 2 Wms. Saund. 319. By the 4 and 5 Anne, c. 16. s. 2. the statutes of jeofails are extended to judgments by default; so that all defects which are cured on a verdict by the statutes of jeofails at that day are helped on judgments by default; but not defects which are cured after a verdict by common law; ner, as it should seem, defects helped after a verdict by 5 Geo. 1. c. 13. where it is enacted that judgment after verdict shall not be stayed or reversed for any defect or fault, either in form or substance, in any bill, writ, original or judicial, or for any variance in such writs from the declaration or other proceedings. It becomes necessary, therefore, in order to ascertain the nature of the defects, which are aided after a judgment by default, since the statute of Anne, to distinguish accurately between such imperfections as are cured by verdict at common law and those which are remedied after verdict by the statutes of jeofails only. Where there was any defect, omission, or imper fection, though in form only, in collateral parts of the pleadings that were not in issue botween the parties, so that there was no ground to presume that the defect or omission was supplied by proof, these defects were not cured by a verdict at common law; but they are as we have seen, aided by the statutes of jeofails, both after verdict and judgment by default; for it was an extremely hard case that a judgment given on merits should be stayed or reversed for defects in form or collateral matters. Lord Chief Justice Gibbs. The doctrine of the case of Edwards v. Blunt was, that if the defendant can avail himself of the objection on demurrer, he shall not be permitted to do it on motion in arrest of judgment. The question, therefore, is, whether this objection might have been taken advantage of on demurrer; and I conceive that it might. The defendant is not deprived of his [ 670 ] remedy by writ of error; and it is of greater consequence that the Court should abide by their rule, than that we should grant this motion. I know the defendant presents himself with the additional objection that the damages include the whole declaration generally; but still the objection springs from what might have been argued on demurrer; and I think it is convenient to adhere to our practice, because it obliges a party to take his objection in the first instance, and it prevents the Court from giving contradictory judgments on the same subjects, as if this might have been noticed on demurrer, and were it not, it would be rather inconsistent to give a judgment on this motion contradictory to what we gave on demurrer. The motion in arrest of judgment is not so regular a course of proceeding as a demurrer. The rest of the Court con curred. 4. THE CLERK OF THE TRUSTEES OF TAUNTON MARKET V. T. LIMBERLEY. M. T. 1776. K. B, 2 Bl. Rep. 1120. to matters Indebitatus assumpsit for 10l., for the use and occupation of certain pieces Or made of ground, parcel of the market-place of Taunton, used and occupied by per- in respect mission of the clerk, for selling divers wares and merchandizes therein, and for which the use of divers stalls or standings in the same, quantum meruit for the like. might have On non assumpsit pleaded, and issue, there was a verdict for the plaintiff at the been plead last assizes, with damages, 18. It was moved for a new trial, because the ed in abate action cannot be brought in the name of the clerk of the market, without nam- ment; ing him personally. 2ndly. It is brought for the use and occupation of a market-place, which cannot be by law; it should have been brought for toll, or pickage, or stallage. 3dly. There is no certain sum claimed or specified for that purpose. It was moved, by leave of the Court, in arrest of judgment on the same objection. The counsel added, that the misnomer (if any) was pleadable in abatement, and therefore cannot be moved in arrest of judgment. And of that opinion was the Court; for by De Grey, C. J.-If this matter, which arises on the face of the record, be matter of abatement, and pleadable as such, it ought to be taken advantage of in the first instance, and not be moved in arrest of judgment; so in that case you are too late. If it is pleadable in bar you are too early, and should go to your writ of error. Nor after defence made on a 5. FREELAND V. HUNT, E. T. 1768. K. B. 2 Wils. 380. In covenant on a deed of assignment by the defendant of particular debts, and he covenants that none of those debts were satisfied. Judgment by default, and a writ of inquiry executed. A fatal mistake being now found out in writ of in the declaration, it was moved that the interlocutory judgment might be forth- quiry.* with entered upon record, agreeable to the declaration delivered, and the roll be brought into the proper office, and that the defendant might have four days [ 671 ] to move in arrest of judgment after the roll is brought in. Upon showing cause it appeared that the defendant attended the executing the writ of inquiry by counsel, and cross-examined the plaintiff's witnesses. Per Cur. We lament that entries on the roll are not, at the times when they ought to be, made. The rule must be discharged, because the defendant did not rely on the mistake, but has made a defence on the executing the writ of inquiry. 6. MOZELEY V. DAVIES. T. T. 1822. Co. Ex. 11 Price, 162. When On a question of parochial modus referred to a trial at law, testimony offer- there has ed as evidence of reputation, in proof of the custom on which the right to the been a mis advantage of the modus decimandi was founded, "that the money payments trial on an issue direct constituting the alleged modus had been uniformly made beyond living memoed by a ry, and that the witness had heard old persons, who at that time occupied * But it may be made after judgment by default, or after judgment quod capiatur; see 1 ity, Lit. Rep. 469; 1 Stra. 425. court of there can VOL. XI. 62 |