were sworn, subject to a motion to be made to the Court on the objection raised. Accordingly, on the 12th of May,

Bompas, upon affidavit of the facts, obtained a rule nisi to set aside the writ of summons and subsequent proceedings on the ground of irregularity. He Contended that in a real action it was doubtful whether the Court would or could make such an amendment in the writ of summons: but it was clear that the amendment by the party himself could not be sustained. Booth on Real Actions, 96. In Adams v. Radway, 1 Marsh. 602, it is laid down that the Court will not assist the demandant in a writ of right; and therefore will not allow him to quash a writ of summons which has been irregularly executed.

If the notice served on the tenant referred to a new writ, such writ would be irregular as issued on a dies non, and as not having fifteen days between the teste and return. Luke v. Harris, 2 W. Bl. 1261.

Busby, who shewed cause, objected to the affidavit on which the rule had been granted, that it was improperly entitled, the tenant not being described as a widow according to the language of the issue, and there being, as he disclosed on affidavit, two Mary Millers living in the same house. He also objected to a description of the tenant's attorney as residing in Lawrence Poultney, (without saying parish, place, or lane,) in the city of London :

THE COURT, however, overruling these objections, he contended that the alteration in the writ was immaterial, having been made before it was executed, *68] and having been sanctioned by a second sealing. It was the same

thing in effect as if the party, upon discovering a clerical error before leaving the office, had caused the mistake to be set right. In Adams v. Radway the writ was executed before the alteration was made. In Durden v. Hammet, 1 B. & C. 111, it was held that before a writ was returnable, it might be altered as to the return day, without being re-stamped, provided the last-appointed return day were not beyond the time at which the writ might at first have been made returnable; and in Popkin v. Smith, 7 Bingh. 434, that where an irregularity in process is amendable as of course, the Court will not set aside the process, even though it be by attachment of privilege.

Bompas, in support of the rule, maintained that the writ was executed by the delivery to the sheriff, and relied on Adams v. Radway. The cases referred to for the demandant, were no guide to the practice in writs of right. The writ of summons was entered of record; 3 Wils. 558; both parties were supposed to be in Court; the day for appearance was fixed by the Court; and the demandant having issued a writ which was vicious for want of fifteen days between the teste and return (2 Inst. 567,) could not amend it by his own act. Com. Dig. Enquest, c. 1. At all events, the notice given to the tenant of the

alteration was insufficient. TINDAL, C. J. This is an application to the Court to set aside a writ of summons issued in this cause, and all the subsequent proceedings, on the ground of irregularity. And the objection is, that after the writ was issued, the party in the cause, without the authority of the Court, altered the day of appearance from the 20th of April to the 24th.

*69]

*If that were an accurate representation of the facts, the tenant, perhaps might have availed himself of the objection; but upon looking at all the circumstances, that does not appear to us to be the fair result of what has occurred. The 20th of April, first fixed by the writ, was wrong in two respects; it was not a day in Court, and it was not at the distance of fifteen days from the issuing of the writ.

If the officer of the Court, as was formerly the practice, had made out the writ, the mistake could scarcely have occurred. The writs are now filled up by the party. But, suppose he had discovered the mistake before leaving the office, and returning to the officer had requested him to make the necessary altertion; there could have been no objection to that. Here, after the writ was delivered to the sheriff, but before any thing had been done on it, it was altered VOL. XXIX.-29

by the party, and brought back to the officer to be resealed. It is the practice, in such cases, to reseal only, and not to sign a second time. The resealing, therefore, sufficiently attests the sanction given by the officer of the court to the alteration; and after that sanction has been given, we cannot look on the writ as other than a proper writ.

It is then objected that the tenant had no sufficient notice of the knights having been summoned for the 24th. If that had been so, and any inconvenience had been pointed out as accruing from the want of notice, there might have been some weight in the objection; but in the absence of any such alle gation or proof, we think the rule should be discharged.

PARK, J. The case had been different if the writ had been executed; but no more has been done here than if the party had discovered a clerical mistake in his writ, and had got it corrected before leaving the *office. And though we do not decide on that ground, the application to set aside the writ ought to have been made sooner.

[*70

GASELEE, J. If the record had been made up at the time the writ issued, perhaps the party could not have corrected the mistake without coming to the Court. But it is well known the record is never made up till a later stage of the proceedings.

The alteration objected to, is, upon the resealing, the act of the officer of the court, and it is no more than if, forgetting for a moment that the day fixed for the return of the writ was a dies non, he had upon recollection, before the writ was issued, inserted a proper day.

VAUGHAN, J. I am of the same opinion. The Court does not usually assist a party in getting over a difficulty in a writ of right: but this is an objection, not arising out of any express legislative enactment or decided case; we must consider it, therefore, on principle; and the objection having been cured before any thing was done on the writ, this rule must be Discharged.

BEGBIE v. CROOK. May 29.

A devisee in fee may, by deed, disclaim the estate devised, and after such disclaimer has no interest in the estate.

REPLEVIN. The defendant made cognisance for several quarters' rent due to T. Veal and J. W. Baugh.

It appeared that the legal interest in the land, in respect of which the rent was claimed, had vested by devise in T. Veal, J. W. Baugh, and H. Lloyd, as trustees, before any of the rent became due.

[*71

*H. Lloyd, by a deed of January 1, 1827, reciting, that he had never acted as trustee, and had refused to do so: "in order to preserve evidence of such his refusal, disclaimed all interest in the freehold and copyhold property devised to him, Veal and Baugh."

Lloyd died before the last quarter's rent accrued.

It was objected, on behalf of the plaintiff, that the deed of January, 1827, did not divest Lloyd of his legal interest in the premises, and that, therefore, the cognizance should have been in the name of all three trustees, except as to the last quarter. Upon this, the verdict was taken for the whole amount, with leave for the plaintiff to move to reduce it to the amount due for one quarter. Humfrey, having obtained a rule nisi accordingly,

Talfourd, Serjt., and Archbold, shewed cause.

They relied on Townson v. Tickell, 3 B. & Ald. 31, (a) where it was held

(a) See also Nicholson v. Wordsworth, 2 Swanst. 365, 371, where all the cases on dis

claimer are collected.

that a devisee in fee, may, by deed, without matter of record, disclaim the estate devised.

And,

Humfrey, not being able to adduce any authority impugning that case,

THE COURT Concurring in the principle there laid down, and approving of it as reasonable, Discharged the rule.

*72]

*FLIGHT v. Lord LAKE. May 29.

Memorial of annuity held sufficient notwithstanding the omission of the word life in the head "person for whose life the annuity is granted."

COVENANT on an annuity deed.

Plea-after setting out the deed on oyer-that no memorial of the deed had been enrolled, stating for whose life or lives the annuity had been granted; by reason whereof the deed was void.

Replication, that such a memorial was duly enrolled.

The form of memorial required by 53 G. 3, c. 141, s. 2, consists of eight columns setting forth respectively the date and nature of the instrument, the names of the parties and witnesses, of the persons by whom the annuity is beneficially received, for whose life or lives it is granted, the consideration paid, and the amount of the annuity. Each column has a heading to indicate its contents; and one of them ought to be headed as follows:"Person or persons for whose life, or lives, the annuity or rent-charge is granted."

In the present cause, when the memorial, which had been enrolled in 1833, was produced at the trial, the column which should have specified for whose life the annuity was granted appeared to be headed as follows:

"Person for whose the annuity is granted."

On the part of the defendant it being objected that the memorial was insufficient for want of conformity with the statute, the verdict for the plaintiff was taken subject to a motion to set it aside and enter a nonsuit. Accordingly,

Maule, now moved for a rule nisi to that effect, contending that unless the omission of the word life were held equivalent to its insertion, the memorial was ill.

*73] The object of the memorial was to afford information *to the unlearned; and though a person versed in the statute book might be at no loss how to supply the word omitted, an uninstructed inquirer might be at a loss, or might insert the word benefit, or any other. The statute having prescribed a precise and simple formulary, the court would not assist the carelessness of the grantee by interpolating what he omitted.

TINDAL, C. J. The only question is, whether any person applying an ordinary understanding to this memorial could misapprehend what was intended. First, the document is headed, "Memorial of an annuity granted and enrolled pursuant to the act of his present majesty, 53 G. 3, c. 141." Then, when we look further into this instrument it clearly purports to be a memorial under that act of parliament, for it contains the required heads or divisions, and every heading is perfect except "Person for whose the annuity is granted." But when we see that it is an annuity under this act of parliament, and an annuity for lives, can we do otherwise than intend that the word life is the word omitted? Without leaning to assist parties who are chargeable with manifest carelessness, we ought to make reasonable allowance for clerical infirmity; particularly when the instrument objected to, gives every information which a party inquiring could desire.

The rest of the court concurring, Maule

Took nothing.

Where the defendant was arrested for 201. 28., and the plaintiff failed to establish at the trial a reasonable ground for proceeding for more than 197. 178., the Court refused to tax the defendant his costs under 43 G. 3, c. 46, the plaintiff being taken by surprise on the objection to the 5s. deducted from his claim.

THE defendant was arrested for 207. 2s. for goods sold and delivered to him by the plaintiff, an ale and porter brewer.

The defendant paid 87. into court, and the jury found a verdict for 21. 178 disallowing 91. for three hogsheads, out of a charge of 127. for four hogsheads of porter; and 5s. out of a charge of 11s. for certain finings.

It appeared at the trial that there had been a contest between the parties as to the charge for the porter, the defendant proving that the liquor in his cellar was of inferior quality: and the plaintiff, that what he delivered was excellent.

The defendant proved, that porter-brewers usually charged 6s. for the same quantity of finings for which the plaintiff had charged 11s., but no objection had been made to that charge previously to the trial.

Kelly, having obtained a rule nisi to tax the defendant his costs under 43 G. 3, c. 46,

Bompas, Serjt., shewed cause, on an affidavit which stated, that the finings sold by ale and porter brewers are of better quality than those sold by porter brewers; and that if the defendant had objected to the charge for that article before the trial, the plaintiff could have produced witnesses to prove, that with reference to the quality, 11s. was a proper charge for the article delivered, and that the plaintiff did not enhance it in order to arrest the defendant. As to the porter, the evidence given at the trial by the plaintiff shewed he [*75 had not proceeded without reasonable and probable cause.

Kelly. Admitting the plaintiff had reasonable cause to sue for the porter, he could only have added the 5s. to the usual charges for the finings with a view to arrest the defendant, and not because he had any reasonable or probable cause for adding it. The jury having found that the charge was not warranted, the defendant is entitled to his costs, under 43 G. 3, as having been arrested without reasonable and probable cause.

TINDAL, C. J. This is a case in which there may be a suspicion, that the plaintiff meant to strain his demand to the utmost, in order to have a ground for arresting the defendant. But in applications like the present, we must not decide on mere suspicion. The act says, "Provided it shall be made appear to the satisfaction of the court in which such action is brought, that the plaintiff had not any reasonable or probable cause for causing the defendant to be arrested and held to special bail in such amount."

Here the arrest was for 207. 28., and the verdict leaves a deficiency of 91. 5s. But the charge for the porter was fairly disputed between the parties, and the plaintiff appears to have had reasonable cause to expect he should recover the amount; and as to the 5s. disallowed for the finings, the plaintiff had no notice that it would be disputed at the trial. Had he received such notice, he might have produced witnesses to shew the quality of the article, and justify the charge. The plaintiff, therefore, now deposing that he did not enhance the price of the finings in order to arrest the defendant, and giving an ostensible reason for the charge, we ought not, on mere suspicion, to make this rule absolute.

The rest of the Court concurring, the rule was

Discharged.

*MILLER, Demandant; MILLER, Tenant. June 1.

Search for attesting witness, what sufficient to let in proof of his handwriting.

UPON the trial at bar of this writ of right, the tenant relied upon a will of Thomas Miller, executed in 1806.

The absence of two of the witnesses who attested the will was sufficiently accounted for, but Willis, the third, not having been found, the question was, whether sufficient inquiry had been made for him, to entitle the tenant to prove his handwriting.

It appeared that in 1806, Willis had been a clerk in the house of Mr. Comyn, a solicitor.

In November, 1834, and again on the 5th of May last, the tenant's solicitor made inquiry of Mr. Comyn, but could obtain no satisfactory information as to Willis's residence, or existence; whereupon, about a week before the trial, Willis was advertised for in three London newspapers.

However, Mr. Comyn, upon his examination to-day, stated that in 1816, upon the trial of an ejectment for the property now in dispute, Willis was a clerk in the house of Swain and Co. But, from inadvertence, he had not communicated this intelligence to the tenant's solicitor, who, being ignorant of the fact, had made no inquiry of Swain and Co.

It was objected that without an application to Swain and Co. there had not been sufficient inquiry for Willis, to entitle the tenant to give evidence of his handwriting. But

THE COURT held that under these circumstances, the will having been executed nearly thirty years ago, and the tenant's solicitor never having been apprised of *Willis's service with Swain and Co., sufficient inquiry had *77] been made to warrant the admission of proof of Willis's signature, which was proved accordingly.

Talfourd, Serjt., and Busby, for the defendant.

Bompas, Serjt., and W. H. Watson, for the tenant.

FRUHLING v. SCHROEDER and Others. June 2.

Defendant, at J.'s request, consented to transfer to the plaintiff's account money which defendant had received for J., and for which it had been the course of dealing between defendant and J. to allow interest: Held, that plaintiff in suing for this money could not recover interest on the amount.

ASSUMPSIT for money had and received by the defendants, to the use of the plaintiff.

Jopperts and Co., of Rio Janeiro, sent coffee to the defendants at Hamburgh, in June 1832, and directed them, with the proceeds to discharge a debt due from Jopperts and Co. to the plaintiff in London.

In August following Jopperts wrote to the plaintiff, and communicated to him the order they had given to defendants; and

In November following the defendants wrote to the plaintiff saying, "Jopperts and Co. have ordered us to remit to you the proceeds of coffee, by the Constance and Fortuna, which, however, has not yet been sold."

It appeared to be the course of business between Jopperts and the defendants, to allow interest on balances remaining in hand and due from the one party to the other.

The coffee having been sold, and the defendants declining to remit the proceeds to the plaintiff, this action was commenced for the amount, and interest.