1822. ATTWOOD v. RATTENBURY. distinction has been drawn between a bill indorsed specially, or in blank. In the former case, it has been often ruled, that in an action by the payees or indorsees, strict evidence must be given that the firm to whom it is indorsed consists of the persons who sue as plaintiffs on the record, whilst an indorsement in blank conveys a joint right of action to as many as agree to sue on the bill (a). Mr. Justice BURROUGH Concurred. Mr. Justice RICHARDSON.-The distinction is, that a contract must be declared on in the terms in which it is made, and if two persons are joint sellers of goods, they must both join in an action brought to recover the price, and if one of them sue alone when both are alive it is a fatal variance, and if one be dead, it is necessary that that fact should be stated in the declaration, and the plaintiff should declare as surviving partner, as the contract was not made with him alone. A bill of exchange however is transferable by delivery, and in case one partner withdraws from the firm, the others become the holders of such an instrument in point of law, and it is quite clear that they may sue in their own right as indorsees if the bill is indorsed to them in blank, as it is not incumbent on them to prove their joint title to sue on the bill by shewing that they were partners at the time of such indorsement, or by proving a transfer to them jointly. (a) See 3 Camp. 240. Rule discharged. END OF HILARY TERM. AN INDEX TO THE PRINCIPAL MATTERS. ABANDONMENT. See INSURANCE, 3, 5, 6. ACKNOWLEDGMENT. See FINE, 1, 2. ACTION. See BILLS OF EXCHANGE, 2. ACTION ON THE CASE. In an action on the case for ob- ACT OF PARLIAMENT. See STATUTEs. ADJUSTMENT. See EVIDENCE, 1. ADVOWSON. AGENT. See ANNUITY, 2. CHARTER-PARTY, 1. AGREEMENT. See FRAUDS, STATUTE OF. INSURANCE, 2. STAMPS, 2. ALTERATION. Of FINES-See FINE, 4. VERY. See also BAIL, 1. 1. Where an attachment of privi- the defendant to set it aside. Adams v. Luck, T. 2 G. 4. Page 113 2. Upon error assigned of a misnomer of the christian name of one of the plaintiffs below in the warrants of attorney, the Court of Exchequer Chamber held it to be immaterial;-and they also allowed the transcript of the record to be amended before amendment in the Court below, where there had been no verdict and judgment entered in the nisi prius record and judgment roll upon a plea of set-off. De Tastet v. Rucker, T. 2 G. 4. 135 3. In an action for a breach of promise of marriage, the declaration contained three counts, the first to marry on request, the second within a reasonable time, and the third generally. On a motion to amend the declaration by inserting a new count to marry on a particular day, the Court ordered the first count to be amended by striking out the promise to marry on request, and introducing a particular day therein, although the declaration had been filed more than two Terms before the application was made; and directed the costs of such application to abide the event of the cause. Horston v. Shilliter, H. 2 & 3 G. 4. ANNUITY. 490 2. Where, upon the grant of an annuity, the agent of the grantees, on paying the consideration-money, retained a considerable sum for the expences of preparing the deeds, and a further sum by way of advance, to answer the first year's payment of the annuity, the Court set aside the deeds against a person who was surety for the payment of the annuity by two collegians, who were minors at Cambridge; -on the ground that this was an illegal retainer, but they imposed on such trustee the terms of returning the principal with interest, on taking an account before the Prothonotary. Mence v. Hammond, H.2 & 3 G. 4. Page 491 APPEARANCE. APPOINTMENT. See DEVISE, 1. 4. 6. APPORTIONMENT OF See COSTS, 2. See AWARD. See BARON AND FEME, 2, 3. 1. Where a sheriff's officer, on arresting the defendant, took five shillings from him, with a promise to pay the remainder of what was usual at a future day, and allowed him to go at large without taking a bail bond, without the plaintiff's assent, he cannot be surrendered in discharge of his bail; and an attachment having issued against the sheriff for not returning the writ, it cannot be set aside, nor will the Court relieve him by allowing him to put in and justify bail. Collins v. Snuggs, T. 2 G. 4. Fage 111 264 2. If a defendant be arrested by the initials of his christian name only, and sign a bail bond in a similar manner; the Court will discharge him on entering a common appearance, on his undertaking to bring no action. Taylor v. Rutherman, M. 2 G. 4. 3. If a defendant be arrested for a sum under 201., and defend the action until the debt and costs amount to nearly 1007., and afterwards gives a warrant of attorney for the amount of the original debt and such costs, under which judgment was entered up, and he was taken in execution :Held, that he was not entitled to his discharge under the statute 48 Geo. 3. c. 123, although he had lain in prison more than twelve months, as the warrant of attorney did not appear to have been improperly obtained from him, nor was he in custody at the time it was given. son v. Sundell, M. 2 G. 4. Robin 287 ARREST OF JUDGMENT. See INSURANCE, 1. ASSESSMENT. ASSIGNEES. ASSUMPSIT. See AMENDMENT, 3. FRAUDS, STATUTE OF. 1. Where the defendant agreed to purchase a lot of trees for a certain sum, and pay for the same according to conditions of sale, and afterwards felled and carried away part of them without making such payment, and refused to pay until the remainder had been delivered :-Held, that the executors of the vendor having failed to establish a count on the special contract, might recover the value of the trees taken by the defendant under counts for goods sold and delivered, as the defendant by such taking had disaffirmed the entirety of the Bragg, v. Cole, T. contract. 2 G. 4. Page 114 2. Where the plaintiff and J. T. were appointed co-executors, and the latter, at the time of the death of the testator, was in co-partnership with the defendant until it was discontinued, after which, and before any adjustment of the accounts of the firm, J. T. died, leaving the plaintiff his co-executor him surviving; and J. T. during the partnership, had paid large sums belonging to the testator's estate into the partnership account, and of which a separate account was kept in the partnership books to the credit of the testator's estate; and none of the funds of such estate ever came to the plaintiff, but were received by the partnership from J. T. his co-executor, without the knowledge of the plaintiff, and the house of J. T., and the defendant became insolvent, and at the dissolution of the partnership there appeared on the books a credit to the testator's estate, no part of which was paid; and the plaintiff, the surviving co-executor of J. T. having commenced an action for money had and received, and declared in his own right, and not as executor, against the defendant, in his own right, and not describing him as the surviving partner of J. T.:— Held, that such action could not be maintained, as the fact of the plaintiff's being such surviving coexecutor should have been stated in the declaration. Fitzgerald v. Boehm, M. 2 G. 4. Page 332 ATTACHMENT. See ARREST, 1. ATTORNEY. On a motion for an attachment against the Warden of the Fleet for not bringing a defendant into Court under a writ of habeas corpus, one of his officers swore that the defendant had the benefit of the rules, but that he could not be found until after the time for bringing him into Court had expired, when he was confined within the prison until he was discharged under an order of the Insolvent Debtors' Court:-The rule for the attachment was ordered to be discharged, on the Warden's paying the costs of the application. Park v. Torre, M. 2 G. 4. ATTACHMENT OF PRIVI. LEGE. See AMENDMENT, 1. ATTESTING WITNESS. DEED, 1. See AMENDMENT, 1. CosTs, 4. 260 Where a person not having been admitted an attorney of this Where the plaintiff, on the sale of a barge by auction under an execution, addressed the company, stating that he had built it for the person against whom the execution was issued, who had not paid him for it; on which no person bid against him, but the auctioneer refused to knock it down to him at his first bidding, when a friend of his made another bidding, and the plaintiff advanced one shilling more, and paid a deposit in part of the purchase money-Held, that he did not acquire any property in the barge under such sale. Fuller v. Abrahams, M. 2 G. 4. 316 |